EICHELBERGER v. BERRYHILL

Filing 18

MEMORANDUM OPINION AND ORDER - Pursuant to the fourth sentence in 42 U.S.C. § 405(g), the decision of the Commissioner to deny Plaintiff's application for Social Security benefits is REVERSED and this case is REMANDED f or the ALJ to reconsider the RFC assessment and whether Plaintiff is in fact able to perform sedentary work; reconsider the opinion of Dr. Chodosh and/or refer Plaintiff for a second consultative examination; pose a complete hypothetical question to the vocational expert which accurately and unambiguously includes Plaintiff's functional limitations pertaining to lifting and walking; and conduct further proceedings deemed appropriate. Signed by MAGISTRATE JUDGE CHARLES A STAMPELOS on 6/2/2017. (tdl)

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
GAINESVILLE DIVISION
JESSIE JAMES EICHELBERGER,
Plaintiff,
vs.

Case No. 1:16cv342-CAS

NANCY A. BERRYHILL,
Acting Commissioner of Social
Security,
Defendant.
/
MEMORANDUM OPINION AND ORDER
This Social Security case was referred to the undersigned magistrate
judge upon consent of the parties and reference by United States District
Judge William Terrell Hodges. ECF No. 14. After consideration of the
entire record, the Court reverses the decision of the Acting Commissioner
(Commissioner) and remands the case for further consideration.

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I. Procedural History
On February 12, 2013, Plaintiff filed an application for Supplemental
Security Income, alleging disability beginning February 16, 2011.
Tr. 95-115, 227-32, 250. 1 The claim was initially denied on April 9, 2013,
and again on reconsideration on August 6, 2013. Tr. 103, 115. Plaintiff
requested a hearing, and a hearing was held before Administrative Law
Judge Kelley Fitzgerald (ALJ) on April 23, 2015. Tr. 56-89. A
supplemental hearing was held on November 20, 2015, after additional
medical records were submitted. Tr. 34-55. Both hearings were held in
Jacksonville, Florida, and Plaintiff was represented by counsel in both
hearings. Tr. 56, 34. Plaintiff testified at each hearing. Tr. 60-82, 40-51.
Ted Mitchell, an impartial vocational expert, testified at the first hearing and
A. Mark Capps, an impartial vocational expert, testified at the second
hearing. Tr. 83-88, 51-54. On March 16, 2016, the ALJ entered an
unfavorable decision concluding that the Plaintiff was not disabled, as
defined in the Social Security Act, 20 C.F.R. § 416.920(g), and denying
Plaintiff’s claims. Tr. 19-29. Plaintiff’s request for review was denied on

1 Citations

to the transcript/administrative record, ECF Nos. 11 (11-1 through 1122), shall be by the symbol “Tr.” followed by a page number that appears in the lower
right corner of each page.
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September 9, 2016. Tr. 1-3. Thus, the decision of the ALJ is the final
agency action. See 20 C.F.R. § 404.981.
On November 11, 2016, Plaintiff filed a Complaint in the United
States District Court, with exhibits, seeking review of the ALJ’s decision.
ECF No. 1; ECF Nos. 1-1 through 1-5. On February 3, 2017, the
Defendant filed an Answer. ECF No. 10. The record was also filed on
February 3, 2017. ECF No. 11 (11-1 through 11-22). Both parties filed
memoranda of law, which have been considered. ECF Nos. 15, 16.
II. Findings of the ALJ
The ALJ made several findings and conclusions relative to the issues
raised in this appeal:
1. “The claimant has not engaged in substantial gainful activity
since February 12, 2013, the application date.” Tr. 21 (citations
omitted). The ALJ noted that the medical record suggests that
the claimant worked as an auto mechanic subsequent to the
application date, but that the work activity did not rise to the
level of substantial gainful activity. Id.
2. “The claimant has the following severe impairments:
disorders of the right hip; disorders of the spine; disorders of
the left shoulder; and chronic obstructive disease (COPD).” Tr.
21. The ALJ noted that the record suggests excessive use of
alcohol but does not show any ongoing diagnosis of a
substance abuse disease; and that this is not a medically
determinable impairment. Id.
3. “The claimant does not have an impairment or combination
of impairments that meets or medically equals the severity of
one of the listed impairments in 20 C.F.R. Part 404, Subpart P,
Appendix 1.” Tr. 21. The ALJ noted that the claimant’s
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physical impairments, singly or in combination, do not meet or
medically equal the criteria of the listed impairments, in
particular the listing under Section 1.00 (Musculoskeletal
Disorders) and 3.00 (Respiratory Impairments) in 20 C.F.R.
Part 404, Subpart P, P, Appendix 1 (20 C.F.R. 416.920(d)). Id.
The ALJ further noted that the medical records do not
demonstrate that all the requirements set forth by any of the
aforementioned listings have been met and that no treating or
examining physician has mentioned findings equivalent in
severity to the criteria of any listed impairment (20 C.F.R.
416.920(c)). Id. at 21-22.
4. “[T]he claimant has the residual functional capacity to
perform sedentary work as defined in 20 C.F.R. 416.967(a)
except with a need for a handheld assistive device for any
walking; no more than frequent climbing ramps/stairs; no more
than occasional bilateral overhead reaching, stooping, crawling,
climbing of ladders, ropes and scaffolds; no concentrated
exposure to extreme heat/cold; avoid even moderate exposure
to hazards (machinery, heights, etc.) or pulmonary irritants
(dust, fumes, odors, gases, poor ventilation); no squatting or
kneeling.” Id. at 22.
5. “The claimant is unable to perform any past relevant work.”
Tr. 26.
6. “The claimant . . . was 42 years old, which is defined as a
younger individual age 45-49, on the date the application was
filed.” Id.
7. “The claimant has a limited education and is able to
communicate in English.” Id.
8. “Transferability of job skills is not an issue in this case
because the claimant’s past relevant work is unskilled.” Id.
9. “Considering the claimant’s age, education, work
experience, and residual functional capacity, there are jobs that
exist in significant numbers in the national economy that the
claimant can perform.” Id.
10. “The claimant has not been under a disability, as defined in
the Social Security Act, since February 12, 2013, the date the
application was filed.” Tr. 27. (citing 20 C.F.R. 416.920(g)).

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The ALJ decided that the claimant is not disabled under section
1614(a)(3)(A) of the Social Security Act. Tr. 27.
III. Legal Standards Guiding Judicial Review
This Court must determine whether the Commissioner’s decision is
supported by substantial evidence in the record and premised upon correct
legal principles. 42 U.S.C. § 405(g); Chester v. Bowen, 792 F.2d 129, 131
(11th Cir. 1986). “Substantial evidence is more than a scintilla, but less
than a preponderance. It is such relevant evidence as a reasonable person
would accept as adequate to support a conclusion.” Bloodsworth v.
Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983) (citations omitted); accord
Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). “The
Commissioner’s factual findings are conclusive if supported by substantial
evidence.” Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002)
(citations omitted). 2 The Court may not decide the facts anew, reweigh the

2

“If the Commissioner’s decision is supported by substantial evidence we must
affirm, even if the proof preponderates against it.” Phillips v. Barnhart, 357 F.3d 1232,
1240, n.8 (11th Cir. 2004) (citations omitted). “A ‘substantial evidence’ standard,
however, does not permit a court to uphold the Secretary's decision by referring only to
those parts of the record which support the ALJ. A reviewing court must view the entire
record and take account of evidence in the record which detracts from the evidence
relied on by the ALJ.” Tieniber v. Heckler, 720 F.2d 1251, 1253 (11th Cir. 1983).
“Unless the Secretary has analyzed all evidence and has sufficiently explained the
weight he has given to obviously probative exhibits, to say that his decision is supported
by substantial evidence approaches an abdication of the court’s ‘duty to scrutinize the
record as a whole to determine whether the conclusions reached are rational.’ ” Cowart
v. Schweiker, 662 F.2d 731, 735 (11th Cir. 1981) (citations omitted).
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evidence, or substitute its judgment for that of the Commissioner,
Bloodsworth, 703 F.2d at 1239, although the Court must scrutinize the
entire record, consider evidence detracting from the evidence on which the
Commissioner relied, and determine the reasonableness of the factual
findings. Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992); Parker v.
Bowen, 793 F.2d 1177, 1180 (11th Cir. 1986). Review is deferential, but
the reviewing court conducts what has been referred to as “an independent
review of the record.” Flynn v. Heckler, 768 F.2d 1273, 1273 (11th Cir.
1985).
“In making an initial determination of disability, the examiner must
consider four factors: ‘(1) objective medical facts or clinical findings; (2)
diagnosis of examining physicians; (3) subjective evidence of pain and
disability as testified to by the claimant and corroborated by [other
observers, including family members], and (4) the claimant’s age,
education, and work history.’” Bloodsworth, 703 F.2d at 1240 (citations
omitted). A disability is defined as a physical or mental impairment of such
severity that the claimant is not only unable to do past relevant work, “but
cannot, considering his age, education, and work experience, engage in
any other kind of substantial gainful work which exists in the national
economy” in significant numbers. 42 U.S.C. § 423(d)(2)(A). A disability is

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an “inability to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to last
for a continuous period of not less than 12 months.” 42 U.S.C.
§ 423(d)(1)(A); see 20 C.F.R. § 416.909 (duration requirement). Both the
“impairment” and the “inability” must be expected to last not less than 12
months. Barnhart v. Walton, 535 U.S. 212, 218 (2002).
The Commissioner analyzes a claim in five steps, pursuant to 20
C.F.R. § 416.920(a)(4)(i)-(v):
1. Is the individual currently engaged in substantial gainful
activity [SGA]?
2. Does the individual have any severe impairments?
3. Does the individual have any severe impairments that meet
or equal those listed in Appendix 1 of 20 C.F.R. Part 404,
Subpart P?
4. Does the individual have the residual functional capacity
(RFC) to perform work despite limitations and are there any
impairments which prevent past relevant work?3
3

A residual functional capacity (RFC) is the most a claimant can still do despite
limitations. 20 C.F.R. § 416.945(a)(1). It is an assessment based upon all of the
relevant evidence including the claimant’s description of his limitations, observations by
treating and examining physicians or other persons, and medical records. Id. The
responsibility for determining claimant’s RFC lies with the ALJ. 20 C.F.R. § 416.946(c);
see Social Security Ruling (SSR) 96-5p, 1996 SSR LEXIS 2, at *12 (July 2, 1996) (“The
term ‘residual functional capacity assessment’ describes an adjudicator’s finding about
the ability of an individual to perform work-related activities. The assessment is based
upon consideration of all relevant evidence in the case record, including medical
evidence and relevant nonmedical evidence, such as observations of lay witnesses of
an individual’s apparent symptomatology, an individual’s own statement of what he or
she is able or unable to do, and many other factors that could help the adjudicator
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5. Do the individual’s impairments prevent other work?
A positive finding at step one or a negative finding at step two results in
disapproval of the application for benefits. A positive finding at step three
results in approval of the application for benefits. At step four, the claimant
bears the burden of establishing a severe impairment that precludes the
performance of past relevant work. Consideration is given to the
assessment of the claimant’s RFC and the claimant’s past relevant work. If
the claimant can still do past relevant work, there will be a finding that the
claimant is not disabled. If the claimant carries this burden, however, the
burden shifts to the Commissioner at step five to establish that despite the
claimant’s impairments, the claimant is able to perform other work in the
national economy in light of the claimant’s RFC, age, education, and work
experience. Phillips, 357 F.3d at 1237; Jones v. Apfel, 190 F.3d 1224,
1229 (11th Cir. 1999); Chester, 792 F.2d at 131; MacGregor v. Bowen, 786
F.2d 1050, 1052 (11th Cir. 1986); 20 C.F.R. § 416.920(a)(4)(v) & (g). If the
Commissioner carries this burden, the claimant must prove that he or she
cannot perform the work suggested by the Commissioner. Hale v. Bowen,
831 F.2d 1007, 1011 (11th Cir. 1987). The Eleventh Circuit has stated that

determine the most reasonable findings in light of all the evidence.”).
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“credibility determinations are the province of the ALJ.” Moore, 405 F.3d at
1212.
IV. Legal Analysis
A. The Evidence
Plaintiff suffered a back injury on February 16, 2011, while at work,
and was diagnosed with lumbar strain and pre-existing degenerative joint
disease. Tr. 326, 586-613. He was evaluated for Workers’ Compensation
purposes by Drs. Gary Newcomer and Scott Wilson. On February 16,
2011, Dr. Wilson imposed a ten pound lifting limitation, along with other
limitations. Tr. 611. On February 21, 2011, Dr. Wilson saw Plaintiff again
for the same injury and found the back pain was continuing. Plaintiff was
released to light duty after rest to allow medications to work, with
restrictions on lifting no more than five pounds, along with other limitations.
Tr. 592-93, 597. The same limitations were continued on February 28,
2011, by Dr. Newcomer. Tr. 586.
In March 2011, Plaintiff was diagnosed by Dr. Phillip Parr, M.D., as
having an annular disc bulge with some mild facet arthropathy and mild
chronic foraminal narrowing as shown on an MRI scan. Tr. 326. Plaintiff
was given a back brace and a prescription for anti-inflammatory
medication. Id. Later in March, Dr. Parr noted Plaintiff was wearing a back

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brace but was unable to stand up straight due to severe spasm. Tr. 325.
An epidural cortisone injection was ordered, along with physical therapy.
Id. Plaintiff attended 21 physical therapy sessions in 2011, but continued to
have limitations in movement. Tr. 337. Marc Gruber, P.A., reported in
September 2011 that range of motion indicated that Plaintiff was not
showing improvement in physical therapy, although Plaintiff reported that
he was having a flare up at the time and thought he had been improving.
Tr. 337.
Plaintiff has chronic obstructive pulmonary disease and was seen in
the emergency room in February and September 2013 and several times in
2014 for exacerbation of that condition. Tr. 437-55, 690-717, 830-33, 91241. Plaintiff continued to smoke in spite of medical advice to quit. Tr. 74.
He reported to medical personnel seen in January 2016 that he had ceased
smoking. Tr. 1274. At the second hearing before the ALJ, on November
20, 2015, Plaintiff testified that he has been on a nebulizer for his COPD,
and had recently been prescribed oxygen, but could not afford it. Tr. 41.
Plaintiff underwent a consultative examination in April 2013, by Lance
Chodosh, M.D. Tr. 565-88. Dr. Chodosh evaluated Plaintiff’s pulmonary
function and his range of motion in his lumbar spine, shoulders, and hips.
Tr. 570-72, 576. The straight leg raise was difficult to assess in the supine

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position due to general pain, but was negative to 90 degrees bilaterally
while sitting. Tr. 576. Plaintiff’s balance was fair, but he walked slowly and
was too weak to walk on his heels or toes and to squat and rise. Tr. 576.
Dr. Chodosh assessed moderate COPD secondary to smoking, chronic
active alcoholism, and poor general condition. Tr. 577. He concluded that
Plaintiff could stand and walk “only occasionally” and that he needed an
assistive device for walking more than 200 feet. Id. Plaintiff could sit and
bend at the waist occasionally with support, but was unable to squat or
kneel and could not lift or carry more than a few pounds.4 Tr. 577.
Dr. Chodosh found Plaintiff was able to handle objects. Id.
At the reconsideration level in August 2013, a non-examining state
Agency consultant, Joseph Chiaro, M.D., opined an RFC consistent with
light work with limitations including frequent climbing ramps/stairs; kneeling
and crawling; occasional climbing ladders/ropes/scaffolds; stooping and
crawling; limited bilateral overhead reaching; avoiding concentrated
exposure to extreme heat/cold and hazards; and avoiding even moderate
exposure to fumes, odors, dusts, gases, and poor ventilation. Tr. 110-14.

4 Dr.

Chodosh noted both that Plaintiff cannot lift “more than five pounds” and
cannot lift “more than a few pounds.” Tr. 574, 576.
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In June 2014, Plaintiff was seen for right shoulder pain following a
fall, and was assessed with a humerus anterior dislocation. Tr. 621, 862.
At that time, his musculoskeletal evaluation showed a normal range of
motion in his other extremities and a normal gait. Tr. 621. In October
2014, a CT scan shown avascular necrosis of the right and left hip, with it
most severe on the right. Tr. 801-02. An x-ray of the left shoulder showed
mild left glenohumeral joint osteoarthritis. Tr. 1245-46.
In February 2015, bilateral femoral head osteonecrosis on the right
hip was seen on CT scan. Tr. 1045-46. Plaintiff testified in the second
hearing on November 20, 2015, that he was scheduled for a pre-surgery
evaluation pertaining to hip replacement. Tr. 41-42. In October 2015,
Chancellor F. Gray, M.D., an orthopedic surgeon, reviewed imaging of
Plaintiff’s noted avascular necrosis of the right hip and “subchondral
insufficiency fracture of condyle of right femoral head, sequela.” Tr. 1285.
In January 2016, Dr. Gray noted that anti-inflammatories, cortisone
injection, and narcotic medication for the hip pain provided minimal relief.
Tr. 1267. At the November 20, 2015, hearing Plaintiff explained that he
was given crutches, but he could not use them so he was given a walker.
Tr. 46. In December 2015, Plaintiff was seen after a fall that exacerbated
his hip pain. Tr. 1279. At that time, he reported that a hip steroid injection

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had given him 75% pain relief, but it lasted for less than three weeks.
Tr. 1282.
January 5, 2016, records of University of Florida Physicians,
Department of Orthopedics, note that Plaintiff was to be scheduled for hip
surgery, subject to nicotine tests to avoid risk for complications. Tr. 1277.
Plaintiff was informed that even “after undergoing total hip replacement
there may still be persistent pain or disability.” Id. This January 5, 2016,
evaluation showed an antalgic gait, which an abnormal gait that indicates
pain. Tr. 1281. The notes also indicate that Plaintiff was working as an
automobile mechanic. Tr. 1274.
B. Decision of ALJ
Plaintiff argues that the RFC determination is not supported by
substantial evidence for several reasons. The Court discusses only
Plaintiff’s contention that the ALJ failed to explain rejection of certain of the
consultative examiner’s stated limitations in light of the residual functional
capacity assessment. Dr. Lance Chodosh, the consultative examiner, in
his assessment, described Plaintiff’s condition as including moderate
COPD secondary to smoking, chronic active alcoholism, and poor general
physical condition. Tr. 577. Dr. Chodosh concluded Plaintiff was able to
stand and walk “only occasionally;” that he required an assistive device to

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walk more than 200 feet; that he could sit; that he could bend at the waist
occasionally with support, handle objects, see, hear, and speak normally.
Tr. 25, 577. Dr. Chodosh concluded that that Plaintiff cannot squat or
kneel, and cannot lift or carry more than a few pounds.5 Tr. 577.
The ALJ asserted that she gave great weight to the findings
Dr. Chodosh made upon consultative examination in April 2013, but that
Dr. Chodosh’s stated “limitations are only credited to the extent that they
are consistent with the established residual functional capacity
assessment.” Tr. 25. The ALJ did not, however, specify which of the
limitations were not credited, why they were not credited, and which aspect
of the RFC assessment was in conflict with Dr. Chodosh’s stated
limitations. Moreover, the ALJ did not make clear whether unspecified
limitations were rejected before the ALJ made the final RFC assessment or
after the fact.
Plaintiff contends that by crediting the stated limitations only to the
extent they are consistent with the RFC assessment, the ALJ was crediting
only those limitations that “fit a pre-determined RFC rather than utilizing
Dr. Chodosh’s competent medical opinion to determine the RFC.” ECF No.
15 at 10. Plaintiff also correctly contends that the ALJ failed to reconcile

5

See note 4 supra.

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Dr. Chodosh’s opinion with the RFC that offers conflicting limitations, failed
to state which limitations were “consistent with the established [RFC]
assessment,” and failed to seek any clarification from Dr. Chodosh as to
the full extent of Plaintiff’s limitations rather than concluding that sedentary
work accounts for all his limitations. ECF No. 15 at 11-12.
The ALJ relied on a vocational expert to conclude that there are jobs
within the national economy in significant numbers that the claimant can
perform. Tr. 26. The ALJ stated in the decision: “I asked the vocational
expert whether jobs exist in the national economy for an individual with the
claimant’s age, education, work experience, and residual functional
capacity.” Tr. 26. Based on the presentation of a hypothetical question,
the vocational expert stated that Plaintiff would be able to perform the
requirements of representative occupations such as addresser (DOT
#209.587-010); 6 call out operator (DOT #237.367-014); and surveillance
systems monitor (DOT #379.367-010). Tr. 26-27. The ALJ ultimately
concluded that, considering the Plaintiff’s age, education, work experience,
and residual functional capacity, there are sedentary jobs that exist in

6

The vocational expert provided the corresponding Dictionary of Occupational
Titles (DOT) codes for each of the jobs named.

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significant numbers in the national economy that the claimant can perform,
with certain additional limitations. Tr. 22, 26.
Sedentary work is defined as follows:
(a) Sedentary work. Sedentary work involves lifting no more
than 10 pounds at a time and occasionally lifting or carrying
articles like docket files, ledgers, and small tools. Although a
sedentary job is defined as one which involves sitting, a certain
amount of walking and standing is often necessary in carrying
out job duties. Jobs are sedentary if walking and standing are
required occasionally and other sedentary criteria are met.
20 C.F.R. § 416.967(a) . The ALJ found that Plaintiff could perform
sedentary work, as defined,
except with a need for a handheld assistive device for any
walking; no more than frequent climbing ramps/stairs; no more
than occasional bilateral overhead reaching; stooping, crawling,
climbing of ladders, ropes and scaffolds; no concentrated
exposure to extreme heat/cold; avoid even moderate exposure
to hazards (machinery, heights, etc.) or pulmonary irritants
(dust, fumes, odors, gases, poor ventilation), no squatting or
kneeling.
Tr. 22. The finding did not address the conflict between Dr. Chodosh’s
stated limitation that Plaintiff could lift only “a few pounds” with the definition
of “sedentary,” which provides for lifting no more than ten pounds. The ALJ
did not explain the conflict between Dr. Chodosh’s stated limitation that
Plaintiff could only stand and walk occasionally with the modification to the
ALJ’s RFC assessment that indicates Plaintiff could perform up to frequent
climbing of ramps and stairs.
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When using a vocational expert, the ALJ must pose hypothetical
questions to determine whether a person with the same limitations as the
claimant will be able to secure employment in the national economy.
Humphries v. Barnhart, 183 F. App’x 887, 891 (11th Cir. 2006)
(unpublished) (citing Wilson v. Barnhart, 284 F.3d 1219, 1227 (11th Cir.
2002)). The ALJ’s hypothetical question to the vocational expert in the
April 23, 2015, hearing did not include any weight limitations as to lifting
which Dr. Chodosh included in his consultative report. 7 Tr. 84-86. In the
November 20, 2015, hearing, the hypothetical question presented to the
impartial vocational expert by counsel included a limitation of lifting no more
than five pounds. Tr. 51. Neither of these hypotheticals included Dr.
Chodosh’s conclusion that Plaintiff could not lift or carry “more than a few
pounds.” Tr. 577. “In order for a vocational expert’s testimony to constitute
substantial evidence, the ALJ must pose a hypothetical question which
comprises all of the claimant’s impairments.” Wilson, 284 F.3d at 1227.
See also Pendley v. Heckler, 767 F.2d 1561, 1563 (11th Cir. 1985). The
ALJ is not required, however, to include findings in the hypothetical that the

7

The impartial vocational expert was asked by Plaintiff’s counsel to add to the
hypothetical question the limitation that Plaintiff could lift only a few pounds. Tr. 86.
The vocational expert stated, “The individual with these limitations would be unable to
sustain competitive employment at any great length.” Id.
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ALJ has properly rejected as unsupported. See Crawford v. Comm’r of
Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004); McSwain v. Bowen, 814
F.2d 617, 620 n.1 (11th Cir. 1987). The ALJ in this case, however, does
not provide a reasonable explanation of which of Plaintiff’s impairments, as
found by Dr. Chodosh and contained in his stated limitations, were rejected
and why they were rejected. Nor did the ALJ attempt to reconcile any
difference between Dr. Chodosh’s statement that Plaintiff could lift no more
than five pounds and his statement that Plaintiff could not lift “more than a
few pounds.”
Further, additional medical evidence of Plaintiff’s condition not
improving was submitted prior to the November 2015 hearing, but
Dr. Chodosh was not provided an opportunity to review the additional
medical information and provide an updated opinion. See Concepcion v.
Comm’r of Soc. Sec., 2013 WL 75142 (M.D. Fla. Jan. 7, 2013) (not
reported in F. Supp. 2d) (concluding that the ALJ’s decision is not based on
substantial evidence where it relies on an “out-of-date consultative
examination report).
At the very least, the ALJ should have requested clarification from
Dr. Chodosh or referred Plaintiff for another consultative examination so
that the record could accurately reflect, with specificity, what sufficient

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evidence supports the RFC. Considering the record as a whole, the ALJ’s
finding that Plaintiff is not disabled is not supported by substantial evidence
in the record and by application of the proper legal standards. No
determination is made whether Plaintiff is disabled.
V. Conclusion
Accordingly, pursuant to the fourth sentence in 42 U.S.C. § 405(g),
the decision of the Commissioner to deny Plaintiff’s application for Social
Security benefits is REVERSED and this case is REMANDED for the ALJ
to reconsider the RFC assessment and whether Plaintiff is in fact able to
perform sedentary work; reconsider the opinion of Dr. Chodosh and/or refer
Plaintiff for a second consultative examination; pose a complete
hypothetical question to the vocational expert which accurately and
unambiguously includes Plaintiff’s functional limitations pertaining to lifting
and walking; and conduct further proceedings deemed appropriate.
IN CHAMBERS at Tallahassee, Florida, on June 2, 2017.
s/ Charles A. Stampelos
CHARLES A. STAMPELOS
UNITED STATES MAGISTRATE JUDGE

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