SAMS v. BERRYHILL

Filing 23

MEMORANDUM OPINION AND ORDER - For the foregoing reasons, 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 further proceedings consistent with this decision. The Clerk shall enter judgment for Plaintiff. Signed by MAGISTRATE JUDGE CHARLES A STAMPELOS on 9/8/2017. (tdl)

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
GAINESVILLE DIVISION
PHILLIP A. SAMS III,
Plaintiff,
vs.

Case No. 1:17cv15-CAS

NANCY A. BERRYHILL,
Acting Commissioner of the
Social Security Administration,
Defendant.
/
MEMORANDUM OPINION AND ORDER
This is a Social Security case referred to the undersigned upon
consent of the parties, ECF No. 8, by District Judge Mark E. Walker, ECF
No. 9, and before the Court pursuant to 42 U.S.C. § 405(g) for review of the
final determination of the Acting Commissioner (Commissioner) of the
Social Security Administration (SSA) denying Plaintiff’s application for a
period of disability and Disability Income Benefits (DIB) filed pursuant to
Title II of the Act. For the reasons set forth herein, the decision of the
Commissioner is reversed and remanded.
I. Procedural History
On August 14, 2013, Plaintiff, Phillip A. Sams III, filed an application
for DIB, alleging disability beginning August 14, 2013, based on a stroke in

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2012; depression; hyperthyroid; heart disease; anxiety; migraines and bad
headaches; blurred vision; back injury; fainting spells/dizziness; chest
pains; and weakness on left side. Tr. 33, 171-72, 186-87, 195.1 Plaintiff
meets the insured status requirements for DIB through March 31, 2017.
Tr. 33, 195.
Plaintiff’s application was denied initially on October 15, 2013, and
upon reconsideration on January 15, 2014. Tr. 33, 77-121. On January
20, 2014, Plaintiff requested a hearing. Tr. 33, 122-23. On December 31,
2015, Plaintiff’s representative (Andrew S. Youngman, a non-attorney) filed
a pre-hearing memorandum. Tr. 268-76. On January 7, 2016,
Administrative Law Judge (ALJ) Gregory J. Froehlich, presided over a
video hearing from Jacksonville, Florida, and Plaintiff appeared in
Gainesville, Florida, represented by L. Lynn Lawrence, an attorney, and
appointed co-representative from the same firm. Tr. 33, 49, 51, 113-14,
166-70. (Mr. Youngman, a non-attorney, also represented Plaintiff on posthearing matters. Tr. 27, 33, 113-14, 166-70, 278-86.) Plaintiff testified
during the hearing. Tr. 52-68. Donna P. Mancini, an impartial vocational
expert, also testified. Tr. 33, 69-73, 265-67 (Résumé).

1

Citations to the transcript/administrative record, ECF No. 12, shall be by the
symbol “Tr.” followed by a page number that appears in the lower right corner.
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The ALJ provided the vocational expert with a hypothetical set of
facts. Tr. 70. Based on those facts, the vocational expert testified that
Plaintiff would not be able to perform his past work, classified in the
Dictionary of Occupational Titles (DOT) as automobile mechanic, medium
exertion with a SVP rating of 6 (skilled) and performed by Plaintiff at the
heavy exertional level. Tr. 69-70; see infra at n.2. The vocational expert
testified that sedentary work would be available and would include
positions such as a document preparer, DOT number 241.587-018,
addresser, DOT number 209.587-010, and cutter and paster, DOT number
249.587-014, with each job classified as unskilled with an SVP of 2. Tr. 7071. Conversely, the vocational expert opined in response to a second
hypothetical that Plaintiff would not be able to perform competitive
employment if he would be off task 20% during the workday and outside of
the normally permitted breaks. Tr. 71. The ALJ asked the vocational
expert if there are any conflicts between her testimony and the DOT and
she responded:
A The only conflict, Your Honor, is, and it’s not really a conflict,
is that the DOT does not address the sit/stand option and I can testify
to that aspect because I’ve worked in the field, met with employers,
discuss with them those issues, and then the testimony is recalled
from those conversations.
Tr. 71. Plaintiff’s counsel then inquired of the vocational expert:
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Q Okay. What part of the file did you review to determine the - his job classifications and -- for this position, for these files?
A Okay. I don’t have any exhibit number. Is [sic] is the
Disability Report, Adult Form, SSA-2368, and specifically the
information that’s contained on page 4 of 11.2
Q Okay. And when you say, for instance, on the document
preparer that there is 48,353 jobs, where are you obtaining that
number from?
A Under a program called a Job Browser Pro by SkillTRAN.
What SkillTRAN does, it extracts the information from the Department
of Labor, Bureau of Labor Statistics in a computer program and
identifies DOT numbers with specific numbers of positions in the state
and national economy.
Q And the DOT hasn’t been updated since, like, 1992; is that
correct?
A The DOT -- yes, the information in the update is -- is old.
That is correct.
ATTY: Okay. Your Honor, one, I’d like to raise the objection
that the way that the numbers are being prepared is unclear and can’t
-- is being related back into old DOT numbers.3
ALJ: Okay. That objection’s [sic] overruled. Thank you.

2

The vocational expert testified that Plaintiff could not perform his past work as
an automobile mechanic, Tr. 69, and appears to have referred to the Disability Report –
Adult - Form SSA 3368, not SSA 2368, and page 4 of 10 not 11, when determining
Plaintiff’s prior relevant work. Tr. 68, 185, 188. The job title is “mechanic”; type of
business, “automotive repair shops”; and worked from 2000 to 2010. Tr. 188.
3

This objection made during the hearing regarding the vocational expert’s
testimony is discussed in the analysis, issue IV, subsection A, infra.
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Tr. 72 (emphasis supplied). The vocational expert further testified that the
positions of document preparer, cutter and paster, and addresser that
require fingering, (occasional and/or frequent), would not be available to
such a person, and “with no fingering, those three positions would be
eliminated.” Tr. 73. The ALJ left the record open for 15 days to obtain
additional medical records. Tr. 73-74.
On January 26, 2016, Mr. Youngman, representing Plaintiff, filed a
lengthy post-hearing memorandum expanding on the objection to the
vocational expert’s testimony and explaining the bases on which Plaintiff
alleged the testimony was unreliable. Tr. 278-332. Mr. Youngman
objected to the vocational expert testimony, arguing that it was based on
outdated information and should have been based on the Department of
Labor’s current source for evaluating job requirements found at the United
States Department of Labor (USDOL) “O*NET” website rather than on the
DOT job descriptions and skill level.4 Tr. 280-81.
On March 7, 2016, the ALJ issued a decision and denied Plaintiff’s
application for benefits, concluding that Plaintiff was not disabled from
4

In part, Plaintiff argued that the three jobs referenced by the vocational expert
have SVP skill levels “that range from 4.0 to <6.0” (not an SVP of 2) and “would exceed
and have no correlation to unskilled the [sic] jobs Ms. Mancini offered.” Tr. 281 (citation
omitted); see infra at 8 ¶4 (ALJ’s residual functional capacity assessment). Similar
arguments were made in Plaintiff’s post-decision memorandum filed on May 12, 2016,
as part of Plaintiff’s request for review of the ALJ’s decision. See Tr. 335-36.
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August 14, 2013, through the date of the decision. Tr. 41. The ALJ did not
rule on the post-hearing objections or more specifically explain why the
objection raised to the vocational expert’s testimony at the hearing was
overruled.
On May 2, 2016, Plaintiff’s representative, Mr. Youngman, requested
review of the ALJ’s decision by the Appeals Council and filed a brief dated
May 12, 2016, and Medical Source Statement’s (MSS) from Innocent
Odocha, M.D., and Brent Stuart, M.D., both dated August 19, 2016. Tr. 2,
5-6, 27-28, 333-38 (Exhibit 22E),5 907-09 (Exhibit 31F), 910 (Exhibit 32F).
Plaintiff’s representative also submitted an MSS from Sarah Bolis, M.D.,
from UF Health dated November 9, 2016, Tr. 8 (Bolis), 13 (Bolis), 19
(Bolis), and records related to a Workers’ Compensation claim dated
November 1, 2016, Tr. 10-16.
On December 7, 2016, the Appeals Council denied Plaintiff’s request
for review of the ALJ’s decision making the ALJ’s decision the final decision
of the Commissioner. Tr. 1-7; see 20 C.F.R. § 404.981. The Appeals
Council noted that it had considered the one-page MSS from Dr. Bolis
dated August 19, 2016, and the medical records (10 pages) from UF Health

5

Plaintiff provided additional objections to the vocational expert’s testimony.
Tr. 335-36.
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dated November 9, 2016, and stated: “The [ALJ] decided your case
through March 7, 2016. This new information is about a later time.
Therefore, does not affect the decision about whether you were disabled
beginning on or before March 7, 2016.” Tr. 2; see Tr. 5-6.
On November 10, 2016, Plaintiff, represented by different counsel,
filed a Complaint in this Court seeking review of the ALJ’s decision. ECF
No. 1. The parties filed memoranda of law, ECF Nos. 18 and 19, which
have been considered.
II. Findings of the ALJ
The ALJ made several findings:
1. “The claimant has not engaged in substantial gainful activity since
August 14, 2013, the alleged onset date.” Tr. 35.
2. “The claimant has the following severe impairments: left shoulder
osteoarthritis; degenerative disk disease of the cervical and lumbar
spine, status post ACDF; coronary artery disease; RSD in the right
upper extremity; bilateral median nerve entrapment; anxiety; and
depression.” Id. The ALJ determined that Plaintiff’s history of TIA
and thyroid issues are non-severe. 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 CFR Part 404, Subpart P, Appendix
1.” Tr. 36. The ALJ also considered the four broad functional
areas known as the “paragraph B” criteria and determined that
Plaintiff had moderate limitations in activities of daily living; mild
limitation in maintaining social functioning; moderate limitations in
maintaining concentration, persistence, and/or pace; and no
episodes of decompensation, of extended duration. Id.
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4. “[T]he claimant has the residual functional capacity [RFC] to
perform less than a full range of sedentary work as defined in 20
CFR 404.1567(a) and needs a 30-minute sit/stand option. The
claimant can occasionally climb ramps and stairs but never
ladders, ropes, or scaffolds. He can occasionally balance but
never can kneel, crouch, or crawl. The claimant is precluded from
bilateral overhead reaching and cannot handle/finger more than
frequently with the right hand. The claimant cannot use his upper
extremities for repetitive movements. The claimant cannot work
around moving, mechanical parts or at unprotected heights.
Additionally, the claimant is limited to performing simple tasks with
little variation that take a short period of time to learn (up to and
including 30 days). He can tolerate changes in a routine work
setting. The claimant is limited to occasional contact with the
general public.” Tr. 37.
5. “The claimant is unable to perform any past relevant work” as an
automobile mechanic, medium exertion, with an SVP rating of 6.
Tr. 40.
6. The Plaintiff was 38 years old, which is defined as a younger
individual age 18-44, on the alleged disability onset date. Id.
Plaintiff “has at least a high school education and is able to
communicate in English.” Id.
7. “Considering the claimant’s age, education, work experience, and
[RFC], there are jobs that exist in significant numbers in the
national economy that the claimant can perform.” Tr. 41. The
vocational expert testified that Plaintiff would be able to perform
the requirements of representative occupations such as document
preparer, addresser, and cutter and paster, each with a sedentary
exertion level and an SVP of 2 (unskilled).6 Tr. 41; see Tr. 70-71.
6

“Unskilled work is work which needs little or no judgment to do simple duties
that can be learned on the job in a short period of time.” 20 C.F.R. § 404.1568(a). An
SVP of 1 means a “[s]hort demonstration only.” Dictionary of Occupational Titles (DOT)
(4th Ed., Rev. 1991), Appendix C: Components of the Definition Trailer, § II, SVP. An
SVP of 2 means “[a]nything beyond short demonstration up to and including 1 month.”
Id. An SVP of 3 means “[o]ver 1 month up to and including 3 months.” Dictionary of
Occupational Titles (DOT) (4th Ed., Rev. 1991), Appendix C: Components of the
Definition Trailer, § II, SVP. In part, “[s]edentary work involves lifting no more than 10
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The vocational expert also testified these positions would be
eliminated if a person was unable to have any fine manipulation
skills, including fingering. See Tr. 73.
8. “The claimant has not been under a disability, as defined in the
Social Security Act, from August 14, 2013, through the date of
[the] decision.” Tr. 41.
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). The Court may not reweigh the evidence or substitute

pounds at a time and occasionally lifting or carrying articles like docket files, ledgers,
and small tools.” 20 C.F.R. § 404.1567(a).
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its own judgment for that of the ALJ even if it finds that the evidence
preponderates against the ALJ’s decision. Moore, 405 F.3d at 1211.7
“In making an initial determination of disability, the examiner must
consider four factors: ‘(1) objective medical facts or clinical findings; (2)
diagnoses 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.” 42 U.S.C. § 423(d)(2)(A). A disability is an “inability to engage
in any substantial gainful activity by reason of any medically determinable

7

“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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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); 20 C.F.R. § 404.1509
(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
(2002). In addition, an individual is entitled to DIB if he is under a disability
prior to the expiration of his insured status. See 42 U.S.C. § 423(a)(1)(A);
Moore v. Barnhart, 405 F.3d at 1211; Torres v. Sec’y of Health & Human
Servs., 845 F.2d 1136, 1137-38 (1st Cir. 1988); Cruz Rivera v. Sec’y of
Health & Human Servs., 818 F.2d 96, 97 (1st Cir. 1986).
The Commissioner analyzes a claim in five steps, pursuant to 20
C.F.R. § 404.1520(a)(4)(i)-(v):
1. Is the individual currently engaged in substantial gainful
activity?
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?8
8

The RFC is the most a claimant can still do despite limitations. 20 C.F.R. §
404.1545(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
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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

physicians or other persons, and medical records. Id. The responsibility for
determining claimant’s RFC lies with the ALJ. 20 C.F.R. § 404.1546(c); see Social
Security Ruling (SSR) 96-5p, 1996 SSR LEXIS 2, at *12 (July 2, 1996, rescinded eff.
Mar. 27, 2017) (“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 determine the most reasonable findings in light of
all the evidence.”). The Court will apply the SSR in effect when the ALJ rendered his
decision. See generally Bagliere v. Colvin, No. 1:16CV109, 2017 U.S. Dist. LEXIS
8779, at *10-18, (M.D. N.C. Jan. 23, 2017), adopted, 2017 U.S. Dist. LEXIS 51917
(M.D. N.C. Feb. 23, 2017).
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experience. Phillips v. Barnhart, 357 F.3d 1232, 1237 (11th Cir. 2004);
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. § 404.1520(a)(4)(v), (e) & (g). An ALJ may make this determination
either by applying the grids or by obtaining the testimony of a vocational
expert. Phillips, 357 F.3d at 1239-40; see 20 C.F.R. Part 404, Subpart P,
Appendix 2. 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).
Plaintiff bears the burden of proving that he is disabled, and
consequently, is responsible for producing evidence in support of his claim.
See 20 C.F.R. § 404.1512(a); Moore, 405 F.3d at 1211.
IV. Analysis
A.
Plaintiff first argues that the ALJ violated the Hearings, Appeals, and
Litigation Law Manual (HALLEX) § I-2-5-55 when he did not address
Plaintiff’s post-hearing written objections regarding the vocational witness
testimony, resulting in reversible error. 9 ECF 14 at 5-8. Plaintiff argued in

HALLEX I-2-5-55, cited by Plaintiff, was amended after the hearing in this case to change the
title and to remove outdated instructions and information that was duplicative of HALLEX I-2-6-74. See
Social Security Administration Office of Disability and Adjudication and Review Transmittal No. I-2-174
9

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the post-hearing objections that the information relied on by the vocational
expert was outdated and unreliable—essentially the same objection
Plaintiff made toward the end of the hearing. Id.; see Tr. 72. At the
hearing, the vocational expert testified that she obtained the number of
available jobs for document preparer as 48,353 positions in the United
States economy. Tr. 70. When asked the source for that number, the
expert testified that she consulted “Job Browser Pro by SkillTRAN,” which
she said “extracts information from the Department of Labor, Bureau of
Statistics in a computer program and “identifies specific DOT numbers with
specific numbers of positions in the national economy.” Id. The expert
agreed that that the DOT has not been updated in many years. Id. Plaintiff
then objected as follows: “Your Honor, one, I’d like to raise the objection
that the way that the numbers are being prepared is unclear and can’t - - is
being related back to the old DOT numbers.” Tr. 72.
In his post-hearing memorandum of law and objections to the
vocational expert’s testimony, Plaintiff contended that the vocational expert
lacked expertise to opine as to the number of jobs available in the local or
regional economy. Tr. 278. He also contended that the testimony of the
vocational expert was unfounded, unsupported and unreliable. Id. In his
explaining amendments to chapter I-2-5 of the HALLEX. See www.ssa.gov/OP_Home/hallex/TS/tsi-2174.html.

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objections, Plaintiff argued that the jobs the vocational expert testified were
available for Plaintiff are no longer performed at the unskilled level in the
current labor market. Tr. 280. He supported this contention with
references to the O*NET, which he contends replaced the DOT by the
Department of Labor because the DOT was considered obsolete. See Tr.
288 (letter from the Division Chief, Occupational Employment Projections,
Department of Labor). The post-hearing objections and evidence were not
addressed by the ALJ in the March 7, 2016, decision. Tr. 39-42.
In his memorandum in this Court, Plaintiff contends:
(1) that unambiguous Agency policy requires the ALJ and
vocational expert to rely upon “up-to-date and reliable”
vocational information, 20 C.F.R. 404.1566(d); SSR 00-4p,
(2) the DOT descriptions for the above-named jobs had not
been changed in well over 20 years, and (3) the US
Department of Labor’s (USDOL) current source for evaluating
the requirements of jobs in the national economy is found at
USDOL’s “O*NET” website.
ECF No. 14 at 5-6. In addition to arguing that the vocational expert’s
testimony that Plaintiff could perform three jobs as described in the DOT,
which Plaintiff contends are obsolete and do not exist in significant
numbers in the national economy, Plaintiff also contends that the ALJ was
required under the HALLEX procedures to address the post-hearing
objections. ECF No. 14 at 5-8. “The [HALLEX] is a policy manual written
by the [SSA] to provide policy and procedural guidelines to ALJs and other
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staff members.” See Howard v. Astrue, 505 F. Supp. 2d 1298, 1300 (S.D.
Ala. 2007) (citing Moore v. Apfel, 216 F.3d 864, 868 (9th Cir. 2000)). The
Eleventh Circuit Court of Appeals “has not decided whether HALLEX
carries the force of law.” McCabe v. Comm’r of Soc. Sec., 661 F. App’x
596, 599 (11th Cir. 2016) (citing George v. Astrue, 338 F. App’x 803, 805
(11th Cir. 2009) (calling the assumption that HALLEX carries the force of
law “a very big assumption”)). “[R]emand is required only if the ALJ (or AC)
violates the procedures in the HALLEX and only if the violation prejudices
the claimant.” Cohan v. Comm’r, Soc. Sec. Admin., No. 6:10-cv-719-Orl35DAB, 2011 WL 3319608, at *5, (M.D. Fla., July 29, 2011) (citation
omitted). See, e.g., Carroll v. Comm’r of Soc. Sec., 453 F. App’x 889, 89293 (11th Cir. 2011) (unpublished) (finding that agency’s violation of its own
governing rules must result in prejudice to support remand for agency
noncompliance).
Plaintiff’s representative attached several exhibits to the post-hearing
objections including letters from representatives from the Bureau of Labor
Statistics, U.S. Department of Labor, stating in part that the DOT “is no
longer in use by the Bureau of Labor Statistics and that it is regarded as
obsolete” and that “[t]he DOT has been replaced by the Occupational

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Information Network (O*NET), which was developed by the Employment
and Training Administration.” Tr. 288, 299.
Even though the Department of Labor has essentially replaced the
DOT with the O*NET, the Code of Federal Regulations lists the DOT as an
acceptable publication. An ALJ may take notice of this information in
forming his opinion whether certain jobs exist in the national economy.
20 C.F.R. § 404.1566(d)(1); see 20 C.F.R. § 404.1560(b)(2) (use of DOT to
determine past relevant work). The O*NET is not listed as an example of
an acceptable publication. 20 C.F.R. § 404.1566(d). Several courts in this
Circuit have considered whether a court should remand for consideration of
the O*NET, see Zayas v. Comm’r of Soc. Sec., No. 6:12-cv-1553-Orl-31TB,
2013 U.S. Dist. LEXIS 185833, at *12 (M.D. Fla. Oct. 10, 2013) (cases
cited therein), adopted, 2014 U.S. Dist. LEXIS 30594 (M.D. Fla. Mar. 10,
2014), and the courts determined that remand was not warranted on this
ground. Id.
Although the DOT continues to be an approved source and is
expressly relied on by the Commissioner in SSR 00-4p for information
about the national economy, and although the vocational expert was not
required to rely on O*NET, Plaintiff raised his objection at the hearing
challenging the reliability of the availability of the jobs testified to by the
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vocational expert. He also raised the objection in his post-hearing
memorandum, contesting the reliability of testimony that the three jobs
described in the DOT are available in the current economy in significant
numbers. Reliability is the guiding star when considering job information
relied on by the ALJ in determining whether there are jobs in significant
numbers in the national economy that the Plaintiff can perform when the
RFC is considered. Section 404.1566(d) provides that the Commissioner,
and thus the ALJ, will take notice of “reliable job information available from
various governmental and other publications.” (emphasis added).
Thus, Plaintiff has raised the issue of the continuing presumption of
reliability of the DOT for certain occupations for which the descriptions have
not been updated for many years and which may no longer be available in
significant, or even insignificant, numbers in the national economy. As
Plaintiff pointed out in the objections filed before the ALJ and in this Court,
the three jobs named by the vocational expert in this case are, under the
O*NET, either not identified or similar jobs are no longer classified as
unskilled jobs which accommodate Plaintiff’s mental limitations. For
example, the job of addresser, DOT 249.587-018, which includes
addressing mailings by hand or with a typewriter, with an SVP of 2, is not
listed in the O*NET. The closest alternative to this job is listed as “word
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processors and typists,” 43-9022.00, which job is described as using a
word processor, computer, or typewriter to type letters, reports, forms, or
other material from rough draft, corrected copy, or voice recording. This
job calls for an SVP range of 4.0 to <6.0.10 The job of clippings cutter and
paster, DOT 249.587-014, which includes using scissors, paper cutter, or
razor knife to cut clippings, with an SVP of 2, is not listed in the O*NET.
The closest alternative may be “office clerks, general,” 43-9061.00, which
calls for duties including operating office machines, maintaining files, and
handling mail. The SVP for this job is also 4.0 to <6.0.11 The job of
document preparer/microfilming, DOT 249.587-018, which includes using
paper cutter, photocopy machine, and rubber stamps to prepare
documents for microfilming, with an SVP of 2, is not listed in the O*NET.
The closest job description in the O*NET may be “office machine operators,
except computer,” 43-9071-00, which calls for operating photocopies,
photographic machines, duplicating machines, or other office machines.
This job has an SVP of 4.0 to <6.0.12

10

See www.onetonline.org/link/summary/43-9022.00 (last visited September 7,

2017).
11

See www.onetonline.org/link/summary/43-9061.00 (last visited September 7,

12

See www.onetonline.org/link/summary/43-9071.00 (last visited September 7,

2017).
2017).
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As noted earlier, the ALJ is allowed to “take administrative notice of
reliable job information available from various other governmental and
other publications.” 20 C.F.R. § 404.1566(d). In Lee v. Barnhart, 63 F.
App’x 291 (9th Cir. 2003) (unpublished), the Court concluded that SSR 004p does not preclude reliance on the O*NET. Id. at 293. Where the
O*NET and the DOT conflict, the ALJ must explain the reasons for relying
on the O*NET. Id. Reliance on the O*NET is not improper and, because
the information contained in it is more current than the DOT, it is not
obsolete and may be found to be more reliable than the DOT in certain
cases. For example, the Court in Johnson v. Berryhill, No. 4:16cv106,
2017 WL 2454326 (W.D. Ky. June 6, 2017), concluded that where the
vocational expert relied on the DOT and testified that the plaintiff could
perform certain job descriptions that had not been updated for many years,
that testimony was found not to be a reliable basis on which to conclude
that the jobs exist in significant numbers in the regional and national
economy. Id. at *7. “ ‘Reliable job information’ cannot be obtained from
obsolete occupational descriptions,” id., and “ ‘common sense dictates that
when such descriptions appear obsolete, a more recent source of
information should be consulted.’ ” Id. (quoting Cunningham v. Astrue, 360
F. App’x 606, 615 (6th Cir. 2010) (unpublished)). The Court in Johnson
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then noted that the O*NET description for one of the jobs testified to in that
case, ticket taker (DOT 344.667-010), is now designated as usher, lobby
attendant, and ticket taker, and indicates a substantially higher level of
specific vocational preparation than the 35 year old DOT description. Id. at
*8. The other job testified to by the vocational expert in Johnson was not
listed in the O*NET, causing the Court to conclude that “[u]nder the
circumstances, the vocational expert’s reliance on the 37-year-old DOT
listing alone does not warrant a presumption of reliability.” Id. The Court in
Johnson remanded for further consideration whether substantial evidence
supported the ALJ’s finding that there were jobs in significant numbers in
the national economy that the plaintiff could perform, in light of the fact that
the VE’s reliance on the DOT’s occupations listings for the jobs testified to
did not warrant a presumption of reliability. Id. at *10.
The Court in Cunningham stated that “the Department of Labor
replaced the DOT with the Occupational Information Network (O*NET), a
database that is continually updated based on data collection efforts that
began in 2001[.]” 360 F. App’x at 616. The Court found that the vocational
expert’s “dependence on the DOT listings alone does not warrant a
presumption of reliability” and remanded for consideration of whether the
listings for the proffered job alternatives were reliable in light of the
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economy as it existed at the time of the hearing. Id. See also Alaura v.
Colvin, 797 F.3d 503, 507-08 (7th Cir. 2015) (stating that the DOT has
been superseded by the O*NET); Dimmett v. Colvin, 816 F.3d 486, 489
(7th Cir. 2016) (noting that the SSA, while aware of the obsolescence of the
DOT, has not endorsed the O*NET and is developing its own parallel
classification system, leaving a vacuum that the O*NET may fill); Feeley v.
Comm’r of Soc. Sec., No. 14-4970, 2015 WL 3505512, at *10-11 & n.2 (D.
N.J. June 3, 2015) (noting that the O*NET seems to have replaced the
DOT and “[t]he SSA may wish to reconsider its persistent reliance on the
DOT in disability proceedings” given that the O*NET database is
continually updated based on data collection that began in 2001). The
approach followed in Feeley, Dimmett, Alaura, and Cunningham has been
described as one in which “the court applies common sense to
demonstrate that the DOT’s job descriptions are antiquated.” Sinclair v.
Berryhill, No. 16-10875, 2017 WL 3122563 *13 n.10 (D. Mass. 2017). A
judge should consider many criteria in determining whether work exists in
significant numbers, including the reliability of the vocational expert’s
testimony on that issue and the types and availability of such work. Hall v.
Bowen, 837 F.2d 272, 275 (6th Cir. 1988).

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Because the ALJ did rule on the objection to the testimony of the
vocational expert that was raised during the hearing by stating on the
record that it was overruled, the ALJ did not clearly violate the express
requirement of HALLEX that the ALJ rule on any objections “on the record
during the hearing, in narrative form as a separate exhibit, or in the body of
his or her decision.” HALLEX, § I-2-6-74.13 However, the Plaintiff followed
up the hearing objection with an extensive and detailed post-hearing
objection to the testimony of the vocational expert. In the post-hearing
objection, Plaintiff expanded on and explained in greater detail his grounds
for contending the vocational expert’s testimony was unreliable in opining
that Plaintiff could perform three DOT jobs descriptions that have not been
updated in decades and are essentially obsolete.
Under the circumstances presented here, where the reliability of the
testimony concerning the DOT job descriptions of document preparer,
addresser, and cutter and paster, all with a SVP of 2 (unskilled), and the
reliability of evidence that these jobs exist in significant numbers in the
current national economy, has been shown to be questionable, the ALJ
should have ruled in the decision in narrative fashion on the objections filed
by Plaintiff. Accordingly, as to this issue, the decision is reversed and

13

See note 9 supra.

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remanded to the ALJ to reconsider and expressly rule on Plaintiff’s
objections and to determine whether substantial evidence supported the
ALJ’s finding that there were jobs in significant numbers in the national
economy that the plaintiff could perform.
B.
In his second issue, Plaintiff contends that the ALJ erred by failing to
properly consider the medical opinion evidence of Dr. Hector MirandaGrajales, Dr. Innocent Odocha, and Dr. Eric Scott. ECF No. 14 at 8-22.
He contends that the RFC assessment by the ALJ conflicts with these
medical sources because their opinions established far greater and more
detailed limitations than the ALJ accounted for in the RFC determination.
He argues that the ALJ failed to give legally sufficient reasons for rejecting
the opinion of these treating physicians.
As the finder of fact, the ALJ is charged with the duty to evaluate all
of the medical opinions in the record. See 20 C.F.R. § 404.1527(b) & (c).
When considering medical opinions, the following factors apply for
determining the weight to give to any medical opinion: (1) the examining
relationship; (2) the treatment relationship, including the frequency of
examination and the length, nature, and extent of the treatment
relationship; (3) the evidence in support of the opinion, because “[t]he more
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a medical source presents relevant evidence to support an opinion,
particularly medical signs and laboratory findings, the more weight” that
opinion is given; (4) the opinion’s consistency with the record as a whole;
(5) whether the opinion is from a specialist and, if it is, it will be accorded
greater weight; and (6) other relevant but unspecified factors. 20 C.F.R.
§ 404.1527(b) & (c)(1)-(6).
The opinion of the claimant’s treating physicians must be accorded
considerable weight by the Commissioner unless good cause is shown to
the contrary. Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997).
This is so because treating physicians “are likely to be the medical
professionals most able to provide a detailed, longitudinal picture of [the
claimant’s] medical impairment(s) and may bring a unique perspective to
the medical evidence that cannot be obtained from the objective medical
findings alone or from reports of individual examinations, such as
consultative examinations or brief hospitalizations.” 20 C.F.R.
§ 404.1527(c)(2). “This requires a relationship of both duration and
frequency.” Doyal v. Barnhart, 331 F.3d 758, 762 (10th Cir. 2003).
The reasons for giving little weight to the opinion of the treating
physician must be supported by substantial evidence, Marbury v. Sullivan,
957 F.2d 837, 841 (11th Cir. 1992), and must be clearly articulated.
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Phillips, 357 F.3d at 1241. “The Secretary must specify what weight is
given to a treating physician’s opinion and any reason for giving it no
weight, and failure to do so is reversible error.” MacGregor, 786 F.2d at
1053. The ALJ may discount the treating physician’s opinion if good cause
exists to do so. Hillsman v. Bowen, 804 F. 2d 1179, 1181 (11th Cir. 1986).
Good cause may be found when the opinion is “not bolstered by the
evidence,” the evidence “supported a contrary finding,” the opinion is
“conclusory or inconsistent with [the treating physician’s own medical
records,” the statement “contains no [supporting] clinical data or
information,” the opinion “is unsubstantiated by any clinical or laboratory
findings,” or the opinion “is not accompanied by objective medical evidence
or is wholly conclusory.” Lewis, 125 F.3d at 1440; Edwards v. Sullivan, 937
F.2d 580, 583 (11th Cir. 1991) (citing Schnorr v. Bowen, 816 F.2d 578, 582
(11th Cir. 1987)).
Where a treating physician has merely made conclusory statements,
the ALJ may afford them such weight to the extent they are supported by
clinical or laboratory findings and are consistent with other evidence as to a
claimant’s impairments. Wheeler v. Heckler, 784 F.2d 1073, 1075 (11th
Cir. 1986). Opinions on issues such as whether the claimant is unable to
work, the claimant’s RFC, and the application of vocational factors, “are not
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medical opinions, . . . but are, instead, opinions on issues reserved to the
Commissioner because they are administrative findings that are dispositive
of the case; i.e., that would direct the determination or decision of
disability.” 20 C.F.R. § 404.1527(d); see Bell v. Bowen, 796 F.2d 1350,
1353-54 (11th Cir. 1986). “[T]reating source opinions on issues reserved to
the Commissioner are never entitled to controlling weight or special
significance.” SSR 96-5p, 1996 SSR LEXIS 2, at *6 (July 2, 1996;
rescinded eff. Mar. 27, 2017). Although physicians’ opinions about what a
claimant can still do or the claimant’s restrictions are relevant evidence,
such opinions are not determinative because the ALJ has responsibility of
assessing the claimant’s RFC.
As noted herein, an RFC is the most a claimant can still do despite
limitations. 20 C.F.R. § 404.1545(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, not a treating physician, notwithstanding
the weight accorded treating physicians medical opinions. 20 C.F.R.
§ 404.1546(c). Moreover, opinions from treating physicians regarding a
claimant’s RFC would not be entitled to any special weight or deference.
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The regulations expressly exclude such a disability opinion from the
definition of a medical opinion because it is an issue reserved to the
Commissioner and a medical source is not given “any special significance”
with respect to issues reserved to the Commissioner, such as disability.
20 C.F.R. § 404.1527(d)(1), (3); SSR 96-5p, 1996 SSR LEXIS 2, at *6 (July
2, 1996; rescinded eff. Mar. 27, 2017). In Lewis v Callahan, the Court
noted “that we are concerned here with the doctors’ evaluations of [the
claimant’s] condition and the medical consequences thereof, not their
opinion of the legal consequences of his condition. Our focus is on the
objective medical findings made by each doctor and their analysis based
on those medical findings.” 125 F.3d at 1440.
It is the task of the ALJ to examine the evidence and resolve
conflicting reports. See Wolfe v. Chater, 86 F.3d 1072, 1079 (11th Cir.
1996). “[A] diagnosis or a mere showing of ‘a deviation from purely medical
standards of bodily perfection or normality’ is insufficient; instead, the
claimant must show the effect of the impairment on her ability to work.”
Wind v. Barnhart, 133 F. App’x 684, 690 (11th Cir. 2005) (unpublished)
(quoting McCruter v. Bowen, 791 F.2d 1544, 1547 (11th Cir. 1986)).
The ALJ in this case declined to award significant weight to the
opinions of Dr. Miranda-Grajales, Dr. Innocent Odocha, and Dr. Scott,
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stating each is not consistent with treatment notes or the medical record as
a whole. Tr. 39. Under 20 C.F.R. § 1527, opinions from an examining
medical source and a treating medical source are given more weight than
those from a medical source who has not examined the plaintiff. 20 C.F.R.
§ 404.1527(c)(1) & (2). Opinions of treating medical sources are generally
given greater weight than objective medical findings alone or reports of
individual examinations or brief hospitalizations. 20 C.F.R.
§ 404.1527(c)(2). A treating source’s opinion on the nature and severity of
the impairments will be given controlling weight if well-supported medically
by acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with other substantial evidence in the case. Id.
If the opinion of a treating source is not given controlling weight, the
factors in other provisions will be considered in determining the weight to
be given. Those other factors include length of treatment, nature and
extent of the relationship, which includes the kinds and extent of
examinations performed and extent of the treating source’s knowledge of
the plaintiff’s impairments, supportability of the sources’ opinions,
specialization by the medical source which serves as the basis for more
weight, and consistency of the opinions with the record as a whole.
20 C.F.R. § 404.1527(c)(2) & (2)(i), (ii), (3)-5). “Generally, the more
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consistent a medical opinion is with the record as a whole, the more weight
we will give to that medical opinion.” 20 C.F.R. § 404.1527(c)(4).
The evidence in the record disclosed that Plaintiff is married,
performs some light household chores (but not dishes), helps some in meal
preparation (but not cooking), goes grocery shopping with his wife, can
drive (short trips), reads and works crossword puzzles, and can hear and
communicate orally. He testified that he does need some help bathing and
dressing. Tr. 59-62, 65-67.
Plaintiff testified at the hearing that he became unable to work about
August 15, 2013, and had not worked since. Tr. 52. He testified that he
cannot turn his neck completely to the left or right all the way, or up or
down completely. Tr. 53. He has a knot in his neck from earlier surgery.
Tr. 63. When his neck pain flares, he said, he often experiences migraines
and bad headaches along with blurry vision. Tr. 64.
Plaintiff testified that he has burning sensation and pain radiating
down into his hands, and that both hands tingle and burn “really bad.” Id.
He said he has these flare ups three or four times a day. Id. Plaintiff
testified that he has difficulty picking up small items, opening bottles, and
opening doors. Tr. 53-54. He testified he was to have surgery to implant a
stimulator to stop the burning and pain in his upper extremities. He cannot
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raise his arms too high because of the problems in his neck and shoulder
blades, and can only lift less than five pounds. Tr. 54, 55. Plaintiff said he
was scheduled to have injections in his lower buttocks areas and hips
because he has inflammation in that area making it painful to bend over,
stoop, or walk too far. Tr. at 54-55. Sitting for more than 15 to 20 minutes,
standing for longer than 20 to 25 minutes, and walking for more than 30
minutes results in pain and numbness in his leg. Tr. 55. Plaintiff reported
that medication does help with the pain, but causes side effects. Tr. 56.
Plaintiff testified that he has problems arising from heart disease
including exhaustion, light-headedness, dizziness, and sometimes fainting.
Tr. 56-57. He said he has experienced left side weakness and blurry vision
that is not corrected by new glasses. Plaintiff testified that he had a stroke
several years earlier that causes him to frequently forget things. Tr. 56, 58.
He has trouble sleeping at night due to pain and is unable to successfully
nap during the day. Tr. 61-62. He testified that he has scar tissue in his
neck and breathing problems during the night, causing a build-up of phlegm
in his throat. That, and nausea in the morning caused by his medicine,
makes getting ready in the morning take longer. Tr. 68.

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Dr. Hector Miranda-Grajales
Plaintiff saw Dr. Hector Miranda-Grajales, a treating physical
medicine and rehabilitation physician, on June 17, 2014, and August 17,
2014, for neck and back pain, tingling in his hands and fingers, and
radiating pain in his shoulders. Tr. 810-13. His August visit was
approximately five months after his Anterior Cervical Discectomy and
Fusion (ACDF) surgery on March 6, 2014. See Tr. 814. On April 15, 2015,
Dr. Miranda opined that Plaintiff was indefinitely disabled. Tr. 680. On
June 4, 2015, Plaintiff was again seen by Dr. Miranda, who noted that
Plaintiff had post-traumatic neck and back pain with the potential for
permanent impairment secondary to an automobile collision. Tr. 683.
November 18, 2015, records of Plaintiff’s examination by Dr. Miranda
indicate that Plaintiff could occasionally and frequently lift less than ten
pounds. Tr. 858. Plaintiff could never twist, stoop, bend, crouch, or climb
stairs or ladders. Tr. 859. His ability to kneel, balance, and crawl are
affected by his impairments. Id. The doctor’s notes state that the Plaintiff
is in constant pain and cannot tolerate prolonged sitting or repetitive use of
his upper extremities. Tr. 858. Dr. Miranda indicated that Plaintiff’s
impairments affect his ability for reaching, manipulating objects (both fine
and gross manipulation), and pushing and pulling. Tr. 859. Dr. Miranda
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noted that Plaintiff has persistent neuropathic pain in his upper extremities
and constant neck pain, swelling in his hands and increased sensitivity to
upper extremity pain. Id. Dr. Miranda opined that Plaintiff would be absent
from work due to impairments or treatment more than four days per month.
Id.
The ALJ accorded no significant weight to Dr. Miranda’s opinion,
concluding that his opinion noted no specific work-related restrictions.
Tr.39. The ALJ concluded that Dr. Miranda’s opinion that Plaintiff had a
less than sedentary residual functional capacity and could not work an
eight-hour day was not consistent with treatment notes or overall medical
evidence in the record. The specific medical evidence in the record that is
said to be inconsistent was not identified in the decision. Dr. Miranda’s
opinion was not, however, inconsistent with the opinions of Dr. Odocha,
and in some respects with the opinions of Dr. Scott, as discussed next.
Dr. Innocent Odocha
Dr. Innocent Odocha, Plaintiff’s treating primary care physician,
provided a letter on May 4, 2015, stating that Plaintiff was indefinitely
disabled and unable to return to work. Tr. 682. On December 7, 2015, in a
Physical Source Medical Statement, Dr. Odocha opined that since June
2014, Plaintiff could carry up to ten pounds occasionally and less than that
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on a frequent basis. Tr. 887. His notes from that date show that Plaintiff
had a weakened right side, neck pain, and neuropathy. Tr. 888.
Dr. Odocha stated in the report that Plaintiff had decreased grip strength on
the right and increased pain. Id. The notes also state that Plaintiff’s
impairments affect his ability for gross manipulation. Id. Dr. Odocha’s
notes indicate that Plaintiff should be given the opportunity to shift at will
from sitting or standing/walking and that Plaintiff cannot sit and stand
and/or walk for a combined four hours total in an eight-hour workday.
Tr. 887-88. Dr. Odocha concluded that Plaintiff’s impairments would often
interfere with his attention and concentration necessary to perform simple
work-related tasks. Tr. 888. He also concluded that Plaintiff would on
average miss about four days of work per month. Id.
Dr. Eric Scott
Plaintiff had C4-7 ACDF surgery on March 6, 2014. Dr. Eric Scott,
Plaintiff’s treating neurosurgeon, saw Plaintiff on March 13, 2014, for right
shoulder pain, and examination disclosed weakness in the shoulder.
Tr. 873. His grip strength was improving at that time. In June 2014,
Dr. Scott’s notes show the medications were not helping Plaintiff’s pain.
Tr. 871. Plaintiff had decreased range of motion in his bilateral shoulders
but upper extremity strength was intact. Id. In the August 25, 2014,
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examination by Dr. Scott, his notes show that Plaintiff’s symptoms were the
same. Tr. 814. Dr. Scott noted that an EMG/nerve conduction study by
Dr. Feussner in June 2014 showed bilateral median nerve entrapments at
the wrist and bilateral C6 radiculopathy. Id. Dr. Scott stated in the notes,
“The EMG findings are not totally unexpected as he had significant
compression at multiple levels.” Id. On November 3, 2014, Plaintiff saw
Jaclyn Wynn, PA-C, in the office of Dr. Scott. Tr. 869. Some decreased
range of motion was noted in Plaintiff’s cervical spine and in his shoulder
bilaterally, along with decreased strength. Id.
On June 15, 2015, Dr. Scott noted that Plaintiff was still having
“considerable pain” in his right shoulder. Tr. 868. Dr. Scott reported that
Plaintiff had “give way weakness of the deltoid, biceps and triceps.” Id. In
his office notes dated November 12, 2015, Dr. Scott concluded that Plaintiff
had continuing cervicobrachial pain, particularly with range of motion.
Tr. 866. Plaintiff had a 3+ grip strength on the right and 4+ grip strength on
the left. The dorsal interosseous and flexors of the ulnar digits were
“markedly weak” on the right. Id.
Dr. Scott noted on November 13, 2015, that Plaintiff could
occasionally and frequently lift less than ten pounds. Tr. 852. Dr. Scott
noted that Plaintiff’s physical impairments affected his reaching, fingering,
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pushing/pulling, gross manipulation, and feeling. Tr. 853. Dr. Scott also
opined that Plaintiff’s impairments would, on average, cause him to be
absent more than four days per month. Id.
The ALJ declined to give significant weight to Dr. Scott’s opinions,
referring primarily to the November 13, 2015, form completed by Dr. Scott
in which no limitation was stated as to Plaintiff’s abilities to sit, stand, and/or
walk during the eight hour workday. Tr. 39. While not completely
consistent in this respect with the opinions of Drs. Miranda and Odocha,
Dr. Scott’s opinion that Plaintiff’s impairments would cause him to miss, on
average, more than four workdays a month, was consistent with those of
Drs. Miranda and Odocha. Dr. Scott’s medical records and notes
document, over a long period of time, Plaintiff’s physical impairments and
resulting ongoing pain that each doctor opined would interfere with
Plaintiff’s ability to work a full workday and avoid absences. He also noted
in that form that Plaintiff’s impairments would frequently be severe enough
to interfere with his attention and concentration required to perform simple
work-related tasks. Tr. 853.
Other Medical Evidence
On September 11, 2013, Plaintiff saw Dr. Phillip Parr, an orthopedic
surgeon, after a slip and fall injury to his neck. Tr. 606. Plaintiff also had
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back pain and was diagnosed with acute cervical and lumbar strain.
Tr. 607. The next day, Dr. Parr saw Plaintiff again regarding his left elbow
and wrist. Tr. 608. Plaintiff had limitation of extension and flexion, but no
evidence of fracture. Id. On October 23, 2013, Dr. Parr reported that
Plaintiff was still reporting back pain and wrist pain. An MRI had been
ordered but not yet completed. Tr. 609. Plaintiff was restricted to no
bending, lifting, twisting, pushing, pulling or grasping with the left wrist. Id.
On November 22, 2013, Dr. Parr examined Plaintiff, who reported tingling
in his hands and chronic pain in his wrists. Tr. 612. Dr. Parr ordered a
nerve conduction study. Id. Plaintiff was restricted as to bending, lifting,
twisting, or grasping with the left hand. Id.
A December 26, 2013, MRI of the lumbar spine disclosed posterior
central disc herniation at L3-4, L4-5, and L5-S1 impinging on the thecal
sac. Tr. 677. No spinal canal stenosis was noted. Id. A cervical MRI was
also performed, which disclosed a disc bulge at C2-3; disc bulge impinging
on the thecal sac at C3-4 and C7-T1 causing moderate narrowing of the
bilateral neural foramina; posterocentral/left paracentral disc herniation at
C4-5; and posterocentral disc herniation at C5-6 and C6-7 impinging on the
thecal sac. Tr. 678-79.

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On January 3, 2014, an MRI scan of Plaintiff’s left and right shoulders
revealed, in the right shoulder, mild posterior subluxation of the humeral
head; supraspinatus tendinosis; complex tears of the mild anterior labrum;
focal subcortical marrow edema at the super lateral aspect of the humeral
head; and moderate fibro-osseous capsular hypertrophy of the
acromioclavicular joint with marrow edema at the contiguous articular
margins. Tr. 674-75. The left shoulder showed supraspinatus tendinosis;
bucket-handle tears of the entire posterior labrum; and moderate fibroosseous capsular hypertrophy of the acromioclavicular joint with marrow
edema at the contiguous articular margins. Tr. 676.
Plaintiff saw Dr. Andrew Rocca, an orthopedic surgeon, for shoulder
pain on February 4, 2014. Tr. 894-897. Dr. Rocca noted no deformity or
swelling, but impingements were noted. Tr. 894. Limited motion was noted
in Plaintiff’s neck and “obvious muscle spasms in the pericervical
musculature and some obvious muscle spasms as well in the trapezius
musculature.” Tr. 895. Dr. Rocca gave Plaintiff a shoulder injection and
future shoulder arthroscopy was discussed. Tr. 896-97. Plaintiff saw
Dr. Rocca again on April 15, 2014, and was diagnosed with shoulder pain,
bilateral labral tears, shoulder impingement, adhesive capsulitis, and upper
extremity paresthesias. Tr. 899. Plaintiff was placed on the schedule for
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shoulder surgery. Tr. 901. Right shoulder arthroscopy was performed on
April 21, 2014, and Dr. Rocca saw Plaintiff in a follow-up examination on
April 30, 2014. Tr. 902. Plaintiff’s continued neck pain was noted. Id. On
June 18, 2014, Dr. Rocca saw Plaintiff and noted continued chronic neck
pain. Tr. 903-04. In the July 10, 2014, follow-up examination, continued
neck and back pain were noted, along with chronic upper extremity and
lower extremity paresthesias and scapular winging. Tr. 905-06.
On June 18, 2015, Plaintiff was examined by anesthesiologist
Dr. Brent Stewart after referral by Dr. Miranda. Tr. 829. Plaintiff reported
severe and constant neck, shoulder, arm, and back pain. Tr. 829-33.
Plaintiff reported associated muscle spasms, nausea, numbness, tingling
and weakness. Tr. 829. At the time, Plaintiff was taking a large number of
medications for pain and other conditions. Tr. 830. Plaintiff reported a
decrease in his daily activities and changes in his sleep habits. Id. A
physical examination showed normal heel and toe walking but with antalgic
gait. Tr. 831. Lumbosacral spine flexion was reported to be normal
although lateral flexion to the left was limited. Tr. 832. Lower extremity
range of motion was normal. Id. Sacroiliitis and greater trochanteric
bursitis were diagnosed. Tr. 833. Sacroiliac joint injections were ordered
and greater trochanteric injections were considered. Id.
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Plaintiff saw Linda Abeles, Ph.D., a licensed psychologist, for a
mental consultative clinical evaluation on October 10, 2013. Tr. 587-89.
The ALJ gave significant weight to Dr. Abeles’ diagnosis of Plaintiff with
mood disorder NOS, cognitive disorder NOS (provisional), and rule out
bipolar disorder with psychotic features. Tr. 38. The ALJ did not cite, and
apparently did not give significant weight to, Dr. Abeles’ evaluation that
Plaintiff’s “judgment abilities appeared impaired,” that his “verbal reasoning
abilities appeared decreased,” and that his “memory abilities appear
decreased.” Tr. 588. Dr. Abeles also stated, “Overall, given Mr. Sam’s
educational and vocational histories, it is likely that his current cognitive
abilities represent a decrease from pre-morbid levels.” Id. Dr. Abeles also
opined that Plaintiff’s ability to manage his own funds was in question.
Tr. 589. The ALJ did not cite, and apparently did not give significant weight
to, Dr. Abeles’ finding that Plaintiff’s current level of psychological
functioning would be hindrance to him in obtaining and maintaining
employment. Tr. 589. The ALJ did give significant weight to the opinion of
the State agency psychologists who opined that Plaintiff had moderate
difficulties in maintaining concentration, persistence, or pace because the
opinion was “consistent, unbiased, and generally supported by the medical
record.” Tr. 38 (citing Ex. 1A and 3A). The agency psychologists opined
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that Plaintiff could persist at simple and routine tasks for a regular workday
at an appropriate pace and can sustain at this level over an extended
period of time.” Tr. 87, 104.
The ALJ gave significant weight to a workers compensation report
dated April 2010, which indicated that Plaintiff was limited to lifting no more
than twenty pounds. Tr. 38 (citing Exhibit at Tr. 492). This report was done
more than three years prior to Plaintiff’s alleged onset date.
Discussion
After declining to give significant weight to the treating physicians’
opinions, and after relying in large part on finding Plaintiff’s statements
concerning the intensity, persistence, and limiting effects of his symptoms
not entirely credible, Tr. 39, the ALJ found that Plaintiff had the RFC to
perform “less than a full range of sedentary work” with a 30 minute sit/stand
option and with other physical movement restrictions. Tr. 37. The RFC is
limited to performing simple tasks with little variation that take a short time
to learn. Id. In reaching this conclusion, and in determining that the
treating physicians’ opinions were not entitled to significant weight, the ALJ
relied on a failure of consistency “with treatment notes or with the medical
record on the whole.” Tr. 39.

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In declining to give substantial weight to Dr. Scott’s opinion, the ALJ
cites the fact that in 2014, after surgery, he advised Plaintiff to discontinue
wearing the collar and noted in 2015 that his cervical spine fusion had
healed. Tr. 39. However, in that same form referred to by the ALJ but not
noted by the ALJ, Dr. Scott noted that Plaintiff had “minimal ability to use
right arm & hand.” Tr. 852. The ALJ also noted that Dr. Scott, in a form
signed in November 13, 2015, did not note any limitations on time for
sitting, standing, or walking. See Tr. 852. The ALJ cites this as evidence
of lack of consistency with Dr. Odocha’s opinion that Plaintiff cannot sit and
stand and /or walk for a combined four hours total in an eight-hour
workday. Tr. 39. However, Dr. Odocha’s sit/stand/walk limitations are not
inconsistent with those of Dr. Miranda. See Tr. 858, 887. Other portions of
Dr. Odocha’s and Dr. Scott’s opinions and findings are also consistent.
Both Dr. Odocha and Dr. Scott found Plaintiff suffered from weakening and
pain in his neck and shoulder area. Tr. 888, 868. Both Dr. Odocha and
Dr. Scott found Plaintiff had decreased range of motion. Tr. 887, 866. All
three treating physicians opined that Plaintiff’s impairments adversely affect
his ability for both gross manipulation of objects (handling). Tr. 853, 859,
888. Both Dr. Scott and Dr. Miranda opined Plaintiff’s fine manipulation
(fingering) was also adversely affected. Tr. 853, 859. The vocational
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expert testified at the hearing that if Plaintiff cannot finger frequently, both
the jobs of document preparer and cutter/paster would be eliminated.14
Tr. 73.
Dr. Miranda, Dr. Odocha, and Dr. Scott all opined that Plaintiff’s
impairments would cause him to be absent from work, on average, for at
least four days a month. Tr. 888, 853, 859. Both Dr. Scott and Dr. Odocha
opined that Plaintiff’s symptoms associated with his impairments were
severe enough to interfere with attention and concentration required to
perform work-related tasks often or frequently. Tr. 888, 853.
The ALJ explains rejection of Dr. Miranda’s opinion that Plaintiff
cannot work an eight-hour day by stating that was “not consistent with
treatment notes or with the overall medical evidence of record,” Tr. 39, but
does not cite the portions of the medical record that refute or contradict this
opinion. The ALJ’s general statement that the opinions of Drs. Miranda,
Odocha, and Scott are inconsistent with the treatment notes or the medical

14

The vocational expert testified that Plaintiff could perform positions such as a
document preparer/microfilming, DOT number 241.587-018 (using paper cutter, razor
knife, photocopier, stamps, involving sitting most of the time); addresser, DOT number
209.587-010 (requiring addressing envelopes by hand or typewriter, sitting most of the
time); and press clipping cutter and paster, DOT number 249.587-014 (using knife or
scissors, tearing or cutting articles, involving sitting most of the time). See Dictionary of
Occupational Titles (4th Ed., Rev. 1991). Even if these jobs were still available in
significant numbers in the current economy, each would require, by their DOT
definitions, frequent fingering and handling, and sitting most of the time.
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record as a whole fails, in large part, to specify what treatment notes are
inconsistent or what portions of the medical record as a whole are
inconsistent. Moreover, the conclusion of the ALJ fails to note
consistencies between and among the opinions and medical records of the
treating physicians. Drs. Miranda and Odocha both opined that Plaintiff
would be unable to sit or stand for no more than two hours in a normal
eight-hour workday. Tr. 858, 887. Dr. Scott and Dr. Miranda both opined
that Plaintiff’s fingering would be affected by his impairments. Tr. 853, 859.
All three treating physicians opined that Plaintiff would miss, on average, at
least four days of work a month. Tr. 853, 859, 888. The ALJ’s broad,
unspecific explanation of the reason for giving less than significant weight
to the treating physicians’ opinions does not satisfy the requirement that the
ALJ demonstrate good cause for rejecting the medical opinions of treating
sources.
Absent “good cause,” an ALJ is to give the medical opinions of
treating physicians substantial or considerable weight. Winschel v. Comm’r
of Soc. Sec., 631 F.3d 1176, 1179 (11th Cir. 2011). As noted earlier,
“[g]ood cause exists ‘when the (1) the treating physician’s opinion was not
bolstered by the evidence; (2) evidence supported a contrary finding; or (3)
treating physician’s opinion was conclusory or inconsistent with the doctor’s
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own medical records.’ ” Id. (quoting Phillips, 357 F.3d at 1241). An ALJ
must provide “clearly articulated” grounds for rejecting a treating
physician’s opinion. Winschel, 631 F.3d at 1179. The failure to give clearly
articulated reasons for giving less weight to the opinion of a treating
physician is reversible error. Lewis v. Callahan, 125 F.3d at 1440.
A general statement that the opinions are not consistent with
treatment notes and with the medical record as whole, without more
explanation, fails to clearly articulate grounds for failing to accord
substantial or considerable weight to the opinions of the treating
physicians. Where an ALJ has failed to properly refute a treating
physician’s testimony and explain with sufficient clarity the grounds for the
evidentiary decision, the Court “will not affirm ‘simply because some
rationale might have supported the ALJ’s conclusion,’ and instead remand
‘for further findings at the administrative hearing level.’ ” Dempsey v.
Comm’r of Soc. Sec., 454 F. App’x 729, 732 & n.5 (11th Cir. 2011)
(unpublished) (quoting Owens v. Heckler, 748 F.2d 1511, 1514-16 (11th
Cir. 1984)). See also Winschel, 631 F. 3d at 1179.
In Dempsey, the ALJ mentioned one part of a treating physician’s
RFC questionnaire and reached certain findings contradicted by the
doctor’s opinion. The Court found that the ALJ erred in failing to mention
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other portions of the treating physician’s questionnaire that included the
doctor’s opinion that the plaintiff would experience pain and other
symptoms severe enough to frequently interfere with the attention and
concentration needed to perform even simple tasks. Dempsey, 454 F.
App’x at 733. Similarly, in this case, the ALJ ignored those portions of the
treating physicians’ notes and questionnaires that were consistent with
each other and which indicated that Plaintiff’s pain and symptoms
associated with his impairments were severe enough to interfere with
attention and concentration required to perform work-related tasks often or
frequently and would likely cause at least four days of missed work per
month. The ALJ also did not discuss the treating physicians’ opinions that
Plaintiff’s impairments would adversely affect his ability for fine and gross
manipulation of objects.
The ALJ found that Plaintiff’s medically determinable impairments
could reasonably be expected to cause his alleged symptoms. Tr. 39.
Because the ALJ failed to properly refute the treating physicians’ evidence
and explain with sufficient clarity the grounds for failing to accord the
treating physicians’ opinions significant weight or controlling weight, the
decision is reversed and remanded for the ALJ to clarify and more fully
support the reasons for discounting the treating physicians’ opinions or,
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alternatively, to give the opinions controlling weight and modify the RFC
and resulting decision accordingly. In light of this Court’s determination
that a remand is required, new vocational expert testimony based on the
appropriate RFC will likely be needed.
C.
In his final issue, Plaintiff contends that the ALJ’s credibility
determination concerning the Plaintiff was flawed primarily because the
ALJ did not acknowledge or discuss Plaintiff’s consistent work history. ECF
No. 14 at 22. He also contends that the credibility determination was
flawed because of the errors alleged in the previous issues. Id. Plaintiff
recognizes that courts are reluctant to disturb an ALJ’s credibility findings,
but argues that a credibility assessment is not sacrosanct. Id.
Guidelines for evaluating symptoms, including pain, are contained in
20 C.F.R. § 404.1529. The Commissioner will consider all of the claimant’s
symptoms, including pain, and the extent to which the symptoms can
reasonably be accepted as consistent with the objective medical evidence
and other evidence. 20 C.F.R. § 404.1529(a). Under this provision, there
must be objective medical evidence from an acceptable medical source
that shows a medical impairment which could reasonably be expected to
produce the pain or other symptoms alleged. Id. That evidence, when
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considered with all other evidence, including statements about the intensity
of the pain and other symptoms which may reasonably be accepted as
consistent with the medical signs and laboratory findings, must lead to a
conclusion that the claimant is disabled. Id. In evaluating the intensity and
persistence of the claimant’s symptoms, the Commissioner will consider,
inter alia, medical history, laboratory findings, and statements about how
the symptoms affect the claimant. Id. In addition to medical evidence, in
evaluating the intensity and persistence of symptoms and in determining
the extent to which the symptoms limit the claimant’s capacity for work, the
Commissioner will look at numerous other factors, including the claimant’s
work record and daily activities. See 20 C.F.R. § 404.1529(3) & (4).
“The ALJ must consider a claimant’s subjective testimony if he finds
(1) evidence of an underlying medical condition and (2) either (a) objective
medical evidence to confirm the severity of the alleged pain arising from
that condition or (b) that the medical condition was of such severity as to
reasonably give rise to the alleged pain.” Pritchett v. Comm'r, Soc. Sec.
Admin., 315 F. App’x 806, 811-12 (11th Cir. 2009) (unpublished) (citing
Mason v. Bowen, 791 F.2d 1460, 1462 (11th Cir. 1986)). If the ALJ
discredits the claimant’s testimony or subjective symptoms, he must
“clearly articulate explicit and adequate reasons” for his decision. Dyer v.
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Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). In articulating the reasons,
the ALJ need not specifically refer to every piece of evidence, but it cannot
be merely a “broad rejection which is not enough to enable the district court
or this Court to conclude that the ALJ considered [the claimant’s] medical
condition as a whole.” Id. In explaining the reasons for discrediting the
credibility of the claimant’s testimony as to frequency, intensity, and
duration of symptoms, the ALJ may cite the claimant’s daily activities. The
Court will not disturb a clearly articulated credibility finding that is supported
by substantial record evidence. Pritchett, 315 F. App’x at 811-12.
However, the ALJ must “articulate specific reasons for questioning the
claimant’s credibility” if subjective symptom testimony is “critical” to the
claim. Marbury v. Sullivan, 957 F.2d 837, 839 (11th Cir. 1992); Chambers
v. Comm’r of Soc. Sec., 662 F. App’x 869, 871 (11th Cir. 2016)
(unpublished).
The ALJ in this case concluded as to effect of Plaintiff’s impairments
and his credibility:
After careful consideration of the evidence, I find that the
claimant’s medically determinable impairments could
reasonably be expected to cause the alleged symptoms;
however, the claimant’s statements concerning the intensity,
persistence and limiting effects of these symptoms are not
entirely credible for the reasons explained in this decision.

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. . . . The claimant partakes in a wide array of daily
activities that can be physically and mentally demanding and
are not the type expected from a totally disabled individual.
The claimant reported that he drives, cooks, and performs
household chores. Such activities are not typically expected
from a totally disabled individual.
The claimant testified that his medication [is] helpful in
controlling his pain. The claimant has not required long
hospitalizations for his physical condition and has had no
mental inpatient hospitalizations, indicating that his symptoms
and limitations are not as severe or limiting as alleged.
The claimant has provided conflicting information that has
affected his credibility. He reported that he cares for his daily
needs though testified he needs help bathing and dressing.
The claimant testified he cannot turn his head from side to side
though is able to drive. The claimant’s conflicting statements
make one question the truthfulness of his remaining
statements.
Tr. 39-40 (footnote added) (citation to evidence omitted).
The statements cited by the ALJ occurred in September and October
2013. Plaintiff stated in a form he filled out in September that he will
prepare meals about 3 times a week but his wife cooks if he is not feeling
well. Tr. 218. He is reported to have said in October 2013 that he spends
his days lying down or sitting; he is capable of taking care of daily needs
including using the bathroom and preparing simple meals; and he can go
out including to the grocery store. Tr. 588. At the hearing in 2016, Plaintiff
testified that he needs help sometimes with bathing and dressing; can take
the trashcan from his bathroom and straighten his bed; can help season
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food in the kitchen but cannot cook due to dizziness and dropping things;
and he can drive short distances. Tr. 59-61. He testified he cannot drive
too far because of the medications he is taking. Tr. 59. As to Plaintiff’s
inability to turn his head, which the ALJ found conflicted with his statement
that he drives, the Plaintiff more fully explained that he cannot turn his head
“completely to my left or my right all the way.” Tr. 53. This limitation does
not directly conflict with statements that he can drive short distances.
Driving a short distance, sometimes performing light cooking preparation,
and light household chores described as taking out a bathroom trashcan,
does not conflict with medical opinions that Plaintiff cannot perform
sedentary work for a full workday. “[P]articipation in everyday activities of
short duration, such as housework” does not disqualify a claimant from
disability.15 Lewis, 125 F.3d at 1441.
The medical record substantiates Plaintiff’s difficulty in fine and gross
manipulation of objects and his inability to sit, stand, or walk for longer
periods of time. The fact that he can sometimes perform those tasks, or a
modified version of them, does not prove inconsistency with medical
The ALJ may consider a claimant’s daily activities when evaluating subjective
complaints of disabling pain and other symptoms. Macia v. Bowen, 829 F.2d 1009,
1012 (11th Cir. 1987); 20 C.F.R. § 404.1529(c)(3)(i). But see Lewis, 125 F.3d at 1441
(“participation in everyday activities of short duration, such as housework or fishing”
does not disqualify a claimant from disability and is not necessarily inconsistent with the
limitations recommended by the claimant’s treating physicians.).
15

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evidence that his impairments and the chronic severe pain from them
would prevent his ability to work full days or work a sufficient number of
days a month to avoid discharge due to excessive absences. All three
treating physicians opined that that Plaintiff’s impairments would likely
result in at least four absences a month. Tr. 888, 853, 859. The vocational
expert testified at the hearing that employers in the jobs she testified were
available to Plaintiff would tolerate no more than two absences in a 30-day
work period. Tr. 71.
Moreover, the ALJ did not discuss, in relation to the credibility
determination, Plaintiff’s long history of employment. The record shows
that Plaintiff had been working as an automobile mechanic for a total of
eleven years and also worked as a cart attendant at a golf course for two
years. Tr. 52, 188. Plaintiff is correct that consideration of his history of
continued employment adds to his credibility and should have been
considered by the ALJ in reaching the credibility determination in this case.
As this case is being reversed and remanded for further findings on the first
two issues, the ALJ on remand should also reconsider and redetermine
Plaintiff’s credibility in this case. No opinion is reached regarding whether
Plaintiff is disabled.

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V. Conclusion
For the foregoing reasons, 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 further proceedings consistent with this decision. The
Clerk shall enter judgment for Plaintiff.
IN CHAMBERS at Tallahassee, Florida, on September 8, 2017.
s/ Charles A. Stampelos
CHARLES A. STAMPELOS
UNITED STATES MAGISTRATE JUDGE

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