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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

LETHERIA A WILLIAMS,

Plaintiff,

v. CASE NO. 4:10-cv-00001-MP-WCS

MICHAEL J ASTRUE,

Defendant.

_____________________________/

O R D E R

This matter is before the Court on Doc. 34, Report and Recommendation of the

Magistrate Judge, recommending that the decision of the Commissioner to deny Plaintiff's

application for Social Security benefits be reversed and the case be remanded to the

Administrative Law Judge to determine whether Plaintiff was disabled on the amended onset

date based upon the residual functional capacity determined by Dr. Elzawahry on November 30,

2007. The time for filing objections has passed, and none have been filed. 

The plaintiff alleges disability due to a back disorder with herniated discs and disc

disease, osteoarthritis, and knee disorder, with onset on May 12, 2005. The Administrative Law

Judge denied benefits finding that Plaintiff had the residual functional capacity to do a limited

range of light work, can do several jobs identified by the vocational expert (general office clerk,

packer, and dispatcher), and thus was not disabled.

This court must determine whether the Commissioner's decision is supported by

substantial evidence in the record and premised upon correct legal principles. Chester v. Bowen,

792 F.2d 129, 131 (11th Cir. 1986). “If the Commissioner's decision is supported by substantial

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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).

Plaintiff argues that the ALJ erred by relying upon the lay opinion of a “single decision

maker,” Adrian Owens Thomas. Defendant acknowledges that the ALJ should not have relied

upon a lay opinion from a state agency, but argues that it was proper for the ALJ to have relied

upon the opinion of Dr. Steele, the non-examining state agency physician, rejecting the opinion of

the treating physician, Dr. Elzawahry, and the evidence from Dr. Caldwell. However, “[t]he

opinions of nonexamining, reviewing physicians . . . when contrary to those of the examining

physicians, are entitled to little weight, and standing alone do not constitute substantial evidence.” 

Sharfarz v. Bowen, 825 F.2d 278, 280 (11th Cir. 1987). Furthermore, the opinion of Dr. Steele,

who did not examine Plaintiff, was based upon an incomplete record and was not well supported

by the reasons given. Notably, Dr. Steele did not have Dr. Elzawahry's residual functional

capacity assessment dated November 30, 2007.

The Court agrees with the Magistrate Judge that the findings of the Administrative Law

Judge were not based upon substantial evidence in the record and did not correctly follow the law. 

Specifically, the ALJ's determination that Dr. Elzawahry's opinion should be disregarded is not

supported by substantial evidence when all of the evidence is considered. Thus, a reversal and

remand, under sentence four of 42 U.S.C. § 405(g) is appropriate. 

A remand under sentence four is considered a final judgment. Bergen v. Commissioner,

454 F.3d 1273 (11th Cir. 2006). Thus, absent a court order stating otherwise, a successful

Plaintiff’s counsel would normally have fourteen days after the order of remand to file a motion

with the District Court requesting an award of attorney fees. Fed. R. Civ. P. 54(d)(2)(B). This

Rule has been interpreted by the Eleventh Circuit to even apply to a request for fees to be paid

Case No: 4:10-cv-00001-MP-WCS

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from Plaintiff’s past due benefits pursuant to 42 U.S.C. § 406(b)(1). Bergen, 454 F.3d at

1277-78. However, Plaintiff's counsel in such a case will not know the amount of benefits - and

therefore fees - until after the Commissioner awards benefits, which typically takes longer than

fourteen days after the entry of judgment. Therefore, an extension of time to seek such fees is

warranted, and was recommended by the Bergen opinion. Id. Accordingly, it is hereby

ORDERED AND ADJUDGED:

1. This Clerk is directed to enter final judgment remanding this case to the

Commissioner under sentence four of 42 U.S.C. § 405(g) for further administrative

proceedings to determine whether Plaintiff was disabled on the amended onset

date based upon the residual functional capacity determined by Dr. Elzawahry on

November 30, 2007.

2. Pursuant to Bergen, proceedings on attorney fees under the Social Security Act, 42

U.S.C. § 406(b) are stayed until the matter is fully adjudicated upon remand. The

Plaintiff shall file a motion to award fees under 406(b) within 30 days after counsel

receives notice from the Defendant Commissioner as to Plaintiff’s past due

benefits.

3. This stay relates only to attorney fee proceedings under § 406(b) of the Social

Security Act, not to attorney fee proceedings under the Equal Access to Justice

Act, 28 U.S.C. § 2412, the latter of which may be adjudicated at this time.

DONE AND ORDERED this 31st day of May, 2011

 s/Maurice M. Paul 

 Maurice M. Paul, Senior District Judge

Case No: 4:10-cv-00001-MP-WCS

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