Joyner et al v. Commissioner of Social Security
Filing
17
FINAL OPINION AND ORDER re: [1 ]Complaint. The Commissioner's decision is reversed and remanded pursuant to sentence four as set forth herein. The Clerk is directed to enter judgment consistent with this ruling and close the file. Signed by Magistrate Judge Thomas E. Morris on 9/29/2011. (DLC)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
FELICIA JOYNER,
Plaintiff,
vs.
CASE NO. 3:10-cv-255-J-TEM
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
____________________________________
ORDER AND OPINION
This matter is before the Court on Plaintiff’s Complaint (Doc. #1), seeking review of
the final decision of the Commissioner of Social Security (“the Commissioner”) that denied
Plaintiff’s claims for disability insurance benefits (“DIB”) and supplemental security income
(“SSI”) disability payments. Plaintiff filed a legal brief in support of the complaint (Doc.
#14). Defendant filed his brief in support of the decision to deny disability benefits (Doc.
#15). Both parties consented to the exercise of jurisdiction by a magistrate judge, and the
case has been referred to the undersigned by the Order of Reference dated June 14, 2010
(Doc. #12).
The Commissioner has filed the transcript of the underlying administrative
proceedings and evidentiary record (hereinafter referred to as “Tr.” followed by the
appropriate page number).
Upon review of the record, the Court found the issues raised by Plaintiff were fully
briefed and concluded oral argument would not benefit the Court in its making its
determinations. Accordingly, the matter has been decided on the written record. For the
reasons set out herein, the decision is REVERSED and the case is REMANDED for
further proceedings.
PROCEDURAL HISTORY
Plaintiff protectively filed applications for DIB and SSI with the Social Security
Administration on March 21, 2003 (Tr. 66-68, 869-71). Plaintiff alleged an onset of
disability of January 27, 2003. Id. The applications were denied initially and upon
reconsideration. Thereafter, Plaintiff timely requested a hearing, which was originally
scheduled for February 7, 2006, but continued without testimony so the administrative law
judge (“ALJ”) could obtain a medical expert to testify (Tr. 902-04). The administrative
hearing was ultimately held on November 21, 2006, in Jacksonville, Florida before ALJ
Edward Bayouth-Babilonia (Tr. 905-988). Plaintiff appeared and testified at the hearing,
as did vocational expert (“VE”) Mr. Robert Bradley and medical expert (“ME”) Dr. Herbert
Copeland.1 Plaintiff’ was represented at the administrative hearing by Ms. Susan Butler,
a non-attorney representative (Tr. 24, 905) The ALJ issued his decision denying Plaintiff’s
claims for DIB and SSI on April 27, 2007 (Tr. 11-23). Plaintiff requested review of the
hearing decision by the Appeals Council; however, the review was denied (Tr. 6-9). Thus,
the ALJ’s hearing decision became the final decision of the Commissioner. Thereafter,
Plaintiff’s current counsel of record, Mr. L. Jack Gibney, Esq., filed the instant complaint in
federal court on March 24, 2010.
SOCIAL SECURITY ACT ELIGIBILITY
AND THE STANDARD OF REVIEW
A plaintiff may be entitled to disability benefits when he or she is unable to engage
1
The Court notes the medical expert’s name is spelled as “Copeland” throughout the
hearing transcript, but is spelled as “Copelan” throughout the ALJ’s decision. This error is
not significant.
2
in substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to either result in death or last for a continuous period
of not less that 12 months. 20 C.F.R. § 404.1505.2 The Commissioner has established a
five-step sequential evaluation process for determining whether a plaintiff is disabled and
therefore entitled to benefits. See 20 C.F.R. § 404.1520; Crayton v. Callahan, 120 F.3d
1217, 1219 (11th Cir. 1997). The plaintiff bears the burden of persuasion through Step 4,
while at Step 5, the burden shifts to the Commissioner. Bowen v. Yuckert, 482 U.S. 127,
146 n.5 (1987).
The scope of this Court's review is limited to determining whether the ALJ applied
the correct legal standards, McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir. 1988),
and whether the findings are supported by substantial evidence, Richardson v. Perales,
402 U.S. 389, 390 (1971).
The Commissioner’s findings of facts are conclusive if
supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is more than
a scintilla, but less than a preponderance. Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir.
1995); Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). Substantial evidence is
comprised of relevant evidence that a reasonable person would accept as adequate to
support a conclusion. Foote, 67 F.3d at 1560; Moore, 405 F.3d at 1211.
Where the Commissioner’s decision is supported by substantial evidence, the Court
will affirm, even if the reviewer would have reached a contrary result as finder of fact, and
even if the reviewer finds that the evidence preponderates against the Commissioner’s
2
Unless otherwise specified, all references to 20 C.F.R. will be to the 2011 edition.
As the Regulations for SSI disability payments mirror those set forth for DIB on the matters
presented in this case, from this point forward the Court may refer only to those sections
in 20 C.F.R. pertaining to part 404 and disability insurance benefits.
3
decision. Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991); Barnes v. Sullivan,
932 F.2d 1356, 1358 (11th Cir. 1991). The district court must view the evidence as a whole,
taking into account evidence favorable as well as unfavorable to the decision. Foote, 67
F.3d at 1560.
The Commissioner must apply the correct law and demonstrate that he has done
so. While the Court reviews the Commissioner’s decision with deference to the factual
findings, no such deference is given to the legal conclusions. Keeton v. Dep't of Health &
Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994) (citing Cornelius v. Sullivan, 936 F.2d
1143, 1145 (11th Cir. 1991)). Therefore, in determining whether the Commissioner’s
decision is supported by substantial evidence, the Court must not re-weigh the evidence,
but must determine whether the record, as a whole, contains sufficient evidence to permit
a reasonable mind to conclude that the plaintiff is not disabled. Bloodsworth v. Heckler,
703 F.2d 1233 (11th Cir. 1983).
In all Social Security disability cases, the plaintiff bears the ultimate burden of
proving disability and is responsible for furnishing or identifying medical and other evidence
regarding his or her impairments. Bowen, 482 U.S. at 146 n.5; Carnes v. Sullivan, 936
F.2d 1215, 1218 (11th Cir. 1991); McSwain v. Bowen, 814 F.2d 617, 619 (11th Cir. 1987);
42 U.S.C. § 423(d)(5) ("An individual shall not be considered to be under a disability unless
he [or she] furnishes such medical and other evidence of the existence thereof as the
Commissioner of Social Security may require."). It is a plaintiff's burden to provide the
relevant medical and other evidence that he or she believes will prove disabling physical
or mental functional limitations. 20 C.F.R. § 404.704.
4
BACKGROUND AND ANALYSIS
Plaintiff was born on February 4, 1972 (Tr. 66, 909). Thus, at the time of the ALJ’s
decision Plaintiff was thirty-four (34) years old. According to her testimony, Plaintiff
graduated from high school and obtained secretarial skills thereafter (Tr. 910). Plaintiff has
past relevant work as a secretary, a clerk who also drove a van on the job, a mail clerk, and
a day care worker (Tr. 120-27, 912-918, 981). Plaintiff stated in her Disability Report - Adult
that she suffers from lupus, a blood disorder, a blood clot on the heart, and body aches and
pains that limit her ability to work (Tr. 99). In responding to the question, “How does your
condition keep you from working?” on a Social Security pain questionnaire form, Plaintiff
wrote that she was “weak and tired” and had “shortness of breath” (Tr. 132).
The ALJ found Plaintiff was not disabled under the Social Security Act at step four
of the five step sequential evaluation process. Relying in part on the vocational expert
testimony and the medical expert testimony, ALJ Bayouth-Babilonia determined Plaintiff
could return to her past relevant work despite her severe impairments (Tr. 22). The ALJ
found Plaintiff had the severe impairments of: systemic lupus erythematosus,3 diabetes,
hypertension, obesity, status post meniscus tear of her right knee with status post right
3
Systemic lupus erythematosus (“SLE”) is defined as: “an inflammatory connective
tissue disease with variable features, frequently including fever, weakness and fatigability,
joint pains or arthritis resembling rheumatoid arthritis, diffuse erythematous skin lesions on
the face, neck, or upper extremities, with liquefaction degeneration of the basal layer and
epidermal atrophy, lymphadenopathy, pleurisy or pericarditis, glomerular lesions, anemia,
hyperglobulinemia, and a positive LE cell test result, with serum antibodies to nuclear
protein and sometimes to double-stranded DNA and other substances.”
See
http://www.medilexicon.com/medicaldictionary.php (last visited Sept. 26, 2011).
5
knee arthroscopy, status post cardiac catheterization with thrombus4 in the left anterior
descending artery (Tr. 17).
Plaintiff argues two issues on appeal. First, Plaintiff asserts the ALJ erred by not
considering the medical evidence as a whole. In this respect, Plaintiff claims the ALJ
selected “favorable statements from the records” and disregarded contrary evidence (Doc.
#14 at 6-12). As one example of the asserted selective evidence consideration, Plaintiff
argues the ALJ failed to include any difficulties with Plaintiff’s grip strength or hands, or the
ability to push and pull with her extremities, in his determination of her residual functional
capacity (“RFC”) and in the hypothetical questions to the vocational expert (Doc. #14 at 9).
In her second issue of error, Plaintiff claims the ALJ’s findings are inconsistent with the
VE’s testimony. Here, Plaintiff points to the inconsistency between finding she could
perform the past relevant work of a van driver, day care worker and mail clerk, and the VE’s
testimony that those jobs fell within medium work, while the ALJ found Plaintiff retained the
capacity “for work at the sedentary level of exertion” (see Doc. #14 at 12-13; compare Tr.
17, Finding No. 5 with Tr. 22, Finding No. 6).
Defendant counters by arguing substantial evidence supports the finding Plaintiff
retained the RFC to perform sedentary work and the finding Plaintiff could perform her past
relevant work (see generally, Doc. #15). More particularly, Defendant asserts the ALJ
“considered the medical records provided by Plaintiff’s main treating physician, Dr. Reza
4
A thrombus is defined as, “A clot in the cardiovascular systems formed during life
from constituents of blood; it may be occlusive or attached to the vessel or heart wall
without obstructing the lumen (mural thrombus).”
See
http://www.medilexicon.com/medicaldictionary.php (last visited Sept. 26, 2011).
6
M. Taba,” along with the opinions of two consulting examiners, the testimony of the medical
expert, and the opinion of a reviewing physician to determine Plaintiff’s symptoms would
not preclude her from performing secretarial work activities (Doc. #15 at 5-6). Defendant
further argues the ALJ committed no error in failing to include restrictions on Plaintiff’s
ability to push and pull, or in the use of her hands, because the additional restriction would
not eliminate any of the jobs identified that Plaintiff could perform (Doc. #15 at 14-15).
Upon its independent review of the ALJ’s decision and the record evidence, the
Court finds merit in some of Plaintiff’s arguments and finds Defendant’s arguments overlook
flaws in the ALJ’s decision that require the case be remanded for reconsideration. In
particular, the Court’s review of the record as a whole, as required under Bloodsworth v.
Heckler, 703 F.2d at 1239, reveals the ALJ has misstated or misconstrued the record on
a number of points, has failed consider a substantial portion of the record evidence, and
has made contradictory findings of fact. Thus, the ALJ’s decision was not reached in
accordance with the Regulations and the law of this circuit, and is not supported by
substantial evidence.
Overall Evaluation of the Medical Evidence
Consideration of all the evidence of record is mandated so that the ALJ can
accurately determine a claimant’s RFC and thereby determine if the claimant can return to
past relevant work. See 20 C.F.R. § 404.1527(b) (“In deciding whether you are disabled,
we will always consider the medical opinions in your case record together will the rest of
the relevant evidence we receive.”); 20 C.F.R. § 404.1529(a) (“. . . we will consider all of
the available evidence. . .”); 20 C.F.R. § 404.1545(a) (“We will assess your residual
functional capacity based on all of the relevant medical and other evidence.”). The focus
7
of a residual functional capacity determination is on the objective medical findings made
by a plaintiff’s doctors and their analysis based on those findings. Lewis v. Callahan, 125
F.3d 1436, 1440 (11th Cir. 1997). An ALJ may not pick and choose which evidence he
considers in making the disability determination. See McCruter v. Bowen, 791 F.2d 1544,
1548 (11th Cir. 1986). The plaintiff has the burden of providing the medical and other
evidence about his or her impairments for the ALJ to use in reaching his conclusions. 20
C.F.R. § 404.1512(a). The Regulations direct the administrative law judges to “consider
all evidence in [the claimant’s] case record when [making] a determination or decision
whether [the claimant is] disabled.” 20 C.F.R. § 404.1520(a)(3).
In the instant action, Plaintiff has provided a plethora of record evidence, but the
ALJ’s decision is devoid of reference to a significant portion of the medical evidence of
record. In an administrative record comprised of thirty-one (31) medical records exhibits,
there is scarce indication in the ALJ’s decision that he considered thirteen (13) of those
thirty-one exhibits.5 Review of the decision reveals there is no specific mention of at least
four of Plaintiff’s treating physicians,6 nor is there reference to the progress notes and other
5
The ALJ stated he gave “careful consideration to all of the evidence” (Tr. 15) and
he refers to the expert opinion evidence provided “by the State Agency doctors” (Tr. 22),
indicating consideration of all three reviewing doctors’ RFC assessments despite explicitly
referring to a single State Agency physician (see Tr. 21-22). Other than consideration of
“all the evidence,” the Court does not find any explicit or implicit reference to exhibits 1F-4F,
7F, 9F, 10F, 12F, 13F, 17F, 19F, 26F and 27F.
6
Dr. R. Stephan Lucie, M.D. (Tr. 184-96) (placed Plaintiff on work restrictions in
2002; treated Plaintiff for knee injury and pain, which ALJ found were severe impairments);
Dr. Unni Thomas, M.D. (Tr. 308-26) (treated Plaintiff for idiopathic thrombocytopenia
purpura); Dr. Gil Cu, M.D. (Tr.591-646) (internal medicine and nephrology; treated Plaintiff
from February 2000 through February 2005; records include kidney biopsy); and, Dr. Yousif
Abubaker, M.D. (Tr. 647-720) (hematology and oncology; treatment for weakness, fatigue,
decreased platelets, idiopathic thrombocytopenia purpura).
8
evidence contained in the record from these physicians. While the lack of reference to
specific record evidence may not warrant remand standing alone, as discussed infra, there
are additional errors that when considered together do require remand.
Plaintiff has not directly challenged the accuracy of the assessed residual functional
capacity, but has noted some of the misstatements of the record contained within the ALJ’s
decision to deny benefits and has challenged the ALJ’s consideration of the medical
evidence from Plaintiff’s treating physicians (see Doc. #14 in general). The Court’s review
of the decision and the underlying administrative record confirms the ALJ’s decision
contains a number of misstatements.
As detailed below, the ALJ’s references to the medical evidence contain errors that
call into question whether the ALJ carefully considered all the evidence of record. As noted
in Owens v. Heckler, 748 F.2d 1511, 1514 (11th Cir. 1984), the evaluation of the Court
centers on the adequacy of the decision rendered by the ALJ. “A clear articulation of both
fact and law is essential to [the court’s] ability to conduct a review that is both limited and
meaningful.” Id. at 1514-15. The ALJ’s decision in the instant action is not sufficient for the
Court to conduct its required review.
Flaws in the ALJ’s findings are most noticeable in his consideration of Plaintiff’s
medical evidence. For example, the ALJ states the Plaintiff was discharged on February
13, 2003 “on aspirin and Plavix” (Tr. 19). Review of the record to which the ALJ refers,
Exhibit 6F at page 45, reveals Plaintiff was discharged from Memorial Hospital on that date
after a ten day stay and she was discharged on Prevacid, Prednisone, Plavix, Reglan,
multivitamin with iron, and aspirin (Tr. 267).
The ALJ also found,
9
On March 11, 2003, a cardiac evaluation revealed that [Plaintiff’s] chest pain
[had] resolved and she was doing well on aggressive antiplatelet therapy
(Exhibit 8F/7). Progress notes from Dr. Kevin Hunger, M.D., dated January
12, 2004, revealed that she had not had any subsequent episodes of chest
pain and she was not short of breath (Exhibit 22F/3). Dr. Hunger noted that
[Plaintiff] was stable and asymptomatic (Exhibit 22F/4).
(Tr. 19.) These findings do not accurately portray the substance of the referenced progress
notes or Plaintiff’s medical history. On January 12, 2004, Dr. Hunger noted Plaintiff is:
a lady with Evans syndrome, autoimmune hemolytic anemia, and ITP
(idiopathic thrombocytopenic purpura). . . . She received Ferrlecit last month
and 24 hours later she had severe chest pain. Cardiology evaluated her in
the hospital and thought the pain might be due to Ferrlecit. She has had no
subsequent episodes of chest pain. She comes in today feeling well and is
not short of breath, but has had a few nosebleeds.
(Tr. 489.) A plain reading of this progress note shows Dr. Hunger was referring to no
subsequent episodes of chest pain since the prior month, not since March 11, 2003, as is
implied by the ALJ’s language. In the treatment plan on January 12, 2004, Dr. Hunger
noted, “Since she is stable and asymptomatic, we will follow her carefully with observation.
Should she have exacerbation of Evans syndrome,7 consideration could be given to
revisiting splenectomy” (Tr. 490).
The ALJ found that on September 24, 2003, Dr. Joel Stone, M.D., noted that Plaintiff
7
Evans syndrome is “acquired hemolytic anemia and thrombocytopenia.” See
http://www.medilexicon.com/medicaldictionary.php (last visited Sept. 27, 2011).
Thrombocytopenia is a “condition in which an abnormally small number of platelets is
present in the circulating blood.” See http://www.medilexicon.com/medicaldictionary.php
(last visited Sept. 27, 2011).
10
“did not have active hemolysis8 and that her thrombocytopenia was mild to moderate and
stable and did not require treatment (Exhibit 11F/12)” (Tr. 19). A closer reading of that
treatment note reveals Dr. Stone actually reported Plaintiff “with questionable hemolysis”
(Tr. 355), and noted “but with _______________ for active hemolysis” (Tr. 356) (blank in
the original). Dr. Stone further stated, “she may very well just have a positive Coombs test
without ongoing hemolysis with autoimmune thrombocytopenia” (Tr. 356), but concluded,
“assuming the patient does not have active hemolysis, her mild to moderate, but stable
thrombocytopenia does not require treatment” (Tr. 356) (emphasis added). Dr. Stone thus
determined that Plaintiff’s thrombocytopenia did not require treatment if the assumption she
did not have active hemolysis was true. The ALJ’s finding regarding Dr. Stone’s treatment
notes on September 24, 2003 does not accurately reflect what was reported in the notes.
The ALJ found, “In [sic] July 12, 2004, Dr. Taba stated she had not seen the
Plaintiff/claimant since May 7, 2003" (Tr. 20). In actuality, Dr. Taba stated Joyner had not
been seen “in this office since May of last year,” but Dr. Taba “had seen [Plaintiff] in the
hospital about a month ago when she was admitted to the hospital for abdominal pain” (Tr.
588). Within the same paragraph in the ALJ’s decision, the ALJ stated, “When seen in [sic]
September 2, 2004, [Plaintiff] was generally feeling well and the examination of her joints
was normal. (Exhibit 25F/13)” (Tr. 20). A closer review of the September 2 treatment note
finds Dr. Taba stated, “Ms. Joyner presents for follow-up on aches and pains. She is
8
Hemolysis is “[a]lteration, dissolution, or destruction of red blood cells in such a
manner that hemoglobin is liberated into the medium in which the cells are suspended, by
specific complement-fixing antibodies, toxins, various chemical agents, tonicity, alteration
of temperature.” See http://www.medilexicon.com/medicaldictionary.php?t=40168 (last
visited Sept. 27, 2011).
11
generally feeling well. States that she is tired all the time and she cannot sleep. Effexor
makes her very nauseated.” (Tr. 579.) Dr. Taba goes on to assess, “Overall, Ms. Joyner
appears to be doing poorly with the problems as reviewed.” Id. With reference to another
of Dr. Taba’s treatment notes, the ALJ found, “On October 29, 2004, Dr. Taba again noted
no abnormality in any joints (Exhibit 25F/9)” (Tr. 20). Here, the ALJ again fails to discuss
Dr. Taba’s overall assessment that Plaintiff was doing poorly with the problems reviewed,
nor does he address that Plaintiff presented for follow-up on fibromyalgia and SLE, not just
a joint examination (see Tr. 575)
The ALJ’s references to Dr. Taba’s and Dr. Hunger’s treatment notes of Plaintiff
have isolated certain aspects of the notes, while ignoring other statements which are
contrary to the ALJ’s findings. It appears to the undersigned that ALJ Bayouth-Babilonia
has relied on select information within Plaintiff’s treatment/progress notes to support his
decision, while ignoring contrary evidence. Selective reliance on only a limited part of the
record, while ignoring other parts, is not permitted. McCruter v. Bowen, 791 F.2d 1544,
1548 (11th Cir. 1986).
Each misstatement of the record, when viewed in isolation, would not constitute such
error as to require reversal. However, the misstatements taken as a whole and the lack of
reference to other medical evidence indicate the ALJ failed to properly consider all the
evidence.9
Clearly the ALJ is not required to specifically refer to every piece of evidence in his
9
The Court has not addressed each and every factual finding that relies on the ALJ’s
flawed construction of the evidence to support the decision to deny disability benefits. The
instances discussed are illustrative of the overall problems found with the ALJ’s decision
in this matter.
12
decision. See Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005). The ALJ is required,
however, to consider all the presented evidence in making his findings and the ultimate
disability determination. The ALJ’s decision in this case is silent on a large amount of
medical evidence provided by the Plaintiff. Although the ALJ has wide latitude to evaluate
the weight of the evidence, he must do so in accordance with prevailing precedent. In this
case it appears the ALJ may have disregarded a significant portion of the medical record
evidence without stating any reason and the Court is left to wonder if correct legal
standards were applied in his analysis of the evidence.
Even if the record contains substantial evidence favorable to the Commissioner, that
“may not insulate the ALJ’s determination from remand when he or she does not provide
a sufficient rationale to link such evidence to the legal conclusions reached.” Russ v.
Barnhart, 363 F.Supp. 2d 1345, 1347 (M.D. Fla. 2005). Such is the case in this matter.
Thus, the Court does not find the decision of the ALJ is based on substantial evidence and
this case must be remanded to the Commissioner for reevaluation of the record as a whole.
Conflicting Findings and Harmless Error
Plaintiff points out the ALJ committed additional error by making conflicting findings
in the decision to deny benefits (Doc. #14 at 12-13). In assessing Plaintiff’s residual
functional capacity, the ALJ found Plaintiff could perform “work at the sedentary level of
exertion” (Tr. 17, Finding No. 5). However, the ALJ also found, “The [Plaintiff/claimant] is
capable of performing past relevant work as a secretary, a van driver, a day care worker,
and a mail clerk” (Tr. 22, Finding No. 6). The vocational expert testified the job of a van
driver is medium exertion, semi-skilled work (Tr. 981), the job of a day care worker is
classified as light duty but was performed by Plaintiff at the sedentary level (Tr. 982), and
13
the mail clerk is a light duty, unskilled job (Tr. 982). Obviously, substantial evidence cannot
support the ALJ’s conflicting findings that Plaintiff can perform jobs in the medium and light
exertional categories when she is limited to sedentary work.10
Defendant does not challenge the error, but instead argues it is harmless error for
the ALJ to have found Plaintiff could perform past relevant work at differing exertional levels
(Doc. #15 at 17-19). Defendant relies on the proposition that because the ALJ found
Plaintiff could perform the work of a secretary at the sedentary level, his error in finding
Plaintiff retained the capacity to work as a van driver and as a mail clerk is harmless. Id.
While Defendant’s argument is somewhat persuasive, it ultimately fails in this case.
Various courts, including this one, have addressed harmless error with their findings. In
Diorio v. Heckler, 721 F.2d 726 (11th Cir. 1983), the court found harmless error when the
ALJ made erroneous statements of fact, but applied the proper legal standard when
considering the vocational factors in application of the GRIDS. Id. at 728. In Wright v.
Barnhart, 153 Fed. Appx. 678 (11th Cir. 2005), the court noted that although the ALJ must
clearly articulate the reasons for giving less weight to the opinion of a treating physician,
and normally failure to do so is reversible error, such failure was harmless error when
correct application of the Regulations would not contradict the ALJ's ultimate findings. Id.
10
Plaintiff also argues the ALJ erred in failing to include push and pull limitations with
her upper and lower extremities (Doc. #14 at 9-10). Defendant vigorously argues there was
no error in the ALJ’s determination to exclude these limitations from Plaintiff’s RFC and
from the hypothetical questions asked of the vocational expert (Doc. #15 at 13-17). In light
of the determination that this case must be remanded for further consideration on other
grounds, the Court finds it unnecessary to address this argument. In any event, on remand
the Commissioner must reevaluate Plaintiff’s RFC upon consideration of all the record
evidence.
14
at 684.11 This Court found harmless error when the ALJ failed to discuss a treating
physician’s opinion, but even giving controlling weight to the opinion would not have
changed the outcome. Parton v. Astrue, No. 3:07-cv-63-J-TEM, 2008 WL 897094 (M.D.
Fla. Mar. 31, 2008).
Here, the ALJ’s conflicting findings concerning Plaintiff’s work capabilities might,
standing alone, constitute harmless error. But in this instance, the conflicting findings,
combined with the misstatements (or misconstructions) of the record and the lack of
reference to a significant portion of the medical evidence, create the necessity for remand
and further consideration of Plaintiff’s case.
In Fisher v. Bowen, 869 F.2d 1055, 1057 (7th Cir. 1989), the court found no principle
of administrative law or common sense requires remand in quest of a perfect opinion
unless there is reason to believe the remand might lead to a different result. In Ward v.
Commissioner of Social Security, 211 F.3d 652, 656 (1st Cir. 2000), the court held that while
an error of law by the ALJ may necessitate a remand, a remand is not essential if it will
amount to no more than an empty exercise. Here, it is not clear to the Court that remand
would amount to an empty exercise. In fact, proper consideration of all the record evidence
may impact the assessment of Plaintiff’s RFC, which may or may not alter the outcome of
Plaintiff’s claims.
CONCLUSION
The Court is precluded from reweighing the evidence anew, but it is nonetheless
11
Unpublished opinions of the Eleventh Circuit Court of Appeals are not considered
binding authority; however, they may be cited as persuasive authority pursuant to the
Eleventh Circuit Rules. 11th Cir. R. 36-2.
15
obligated to review the record in its entirety.
Foote, 67 F.3d at 560.
The Court’s
independent review reveals the record differs from the ALJ’s factual findings in the abovementioned instances, and more. Thus, it is impossible to say the ALJ’s decision is
supported by substantial evidence
An ALJ is required to build an accurate and logical bridge from the evidence to his
conclusion. Baker v. Barnhart, No. 03-C-2291, 2004 WL 2032316, *8 (N.D. Ill. Sept. 9,
2004). The ALJ must also “sufficiently articulate” his assessment of the evidence to assure
the court that he has considered the important evidence–so that the court may trace the
path of the ALJ’s reasoning to his conclusion. Id. After review of the ALJ’s decision and
the administrative record, the Court cannot find the ALJ has built the requisite accurate and
logical bridge from the evidence to the conclusion.
For the foregoing reasons, the decision of the Commissioner is not supported by
substantial evidence or decided according to proper legal standards. Accordingly, the
Commissioner’s decision is hereby REVERSED and REMANDED for additional
proceedings consistent with this Order and Opinion.
Upon remand, the Commissioner shall re-evaluate Plaintiff in accordance with the
applicable Regulations and prevailing case law. All the medical evidence must be
considered and weighed in accordance with the Regulations and prevailing case law, and
Plaintiff’s residual functional capacity must be reassessed. On remand, the ALJ may desire
to reopen the record and accept any additional evidence deemed appropriate, which may
include vocational testimony in light of the reassessed RFC. The ALJ may not, however,
selectively rely on only a limited part of the record, while ignoring other parts. See
16
McCruter v. Bowen, 791 F.2d 1544, 1548 (11th Cir. 1986).
Plaintiff is cautioned that this opinion does not suggest Plaintiff is entitled to disability
benefits. Rather, it speaks only to the process the ALJ must engage in and the findings
and analysis the ALJ must make before determining whether Plaintiff is disabled within the
meaning of the Social Security Act. Phillips v. Barnhart, 357 F.3d 1232, 1244 (11th Cir.
2004).
Directions as to Judgment
The Clerk of Court is directed to enter judgment consistent with this Order and
Opinion, and thereafter to close the file.12
DONE AND ORDERED at Jacksonville, Florida this 29th day of September, 2011.
Copies to all counsel of record
12
If Plaintiff were to ultimately prevail in this case upon remand to the Social Security
Administration, any motion for attorney fees under 42 U.S.C. § 406(b) must be filed within
thirty (30) days of the Commissioner’s final decision to award benefits. See Bergen v.
Comm’r Soc. Sec., 454 F.3d 1273, 1278 n.2 (11th Cir. 2006) (recognizing under Fed. R. Civ.
P. 54(d)(2)(B) the district court may enlarge the time for any attorney to petition for fees and
suggesting time be stated in the judgment); compare with Fed. R. Civ. P. 54(d)(2)(B) and
M.D. Fla. Loc. R. 4.18(a) (both requiring that unless a statute or court order provides
otherwise, any motion for attorney fees must be filed no later than fourteen (14) days after
entry of judgment) (emphasis added).
This Order and Opinion does not, however, extend
the time limits for filing a motion for attorney fees under the Equal Access to Justice Act.
17
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