IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

NATALIE P. GOINS, :

Plaintiff, :

vs. CA 05-0682-C

:

JO ANNE B. BARNHART,

Commissioner of Social Security, :

Defendant.

MEMORANDUM OPINION AND ORDER

Plaintiff brings this action pursuant to 42 U.S.C. §1383(c)(3), seeking

judicial review of a final decision of the Commissioner of Social Security

denying her claim for supplemental security income benefits. The parties have

consented to the exercise of jurisdiction by the Magistrate Judge, pursuant to

28 U.S.C. § 636(c), for all proceedings in this Court. (Doc. 19 (“In accordance

with the provisions of 28 U.S.C. 636(c) and Fed.R.Civ.P. 73, the parties in this

case consent to have a United States Magistrate Judge conduct any and all

proceedings in this case . . . and order the entry of a final judgment, and

conduct all post-judgment proceedings.”); see also Doc. 20 (order of

reference)) Upon consideration of the administrative record, plaintiff's

proposed report and recommendation, the Commissioner's proposed report and

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1 Any appeal taken from this memorandum opinion and order and judgment shall

be made to the Eleventh Circuit Court of Appeals. (See Doc. 19 (“An appeal from a judgment

entered by a Magistrate Judge shall be taken directly to the United States Court of Appeals for

this judicial circuit in the same manner as an appeal from any other judgment of this district

court.”))

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recommendation, and the parties’ arguments at the June 27, 2006 hearing

before the undersigned, the Court determines that the Commissioner's decision

denying benefits should be reversed and this cause remanded to the

Commissioner of Social Security for further proceedings not inconsistent with

this decision.1

 

The Administrative Law Judge (ALJ) made the following findings:

2. The medical evidence establishes that the claimant

possesses the severe impairments of migraine headaches,

obesity, and lumbar degenerative disc disease at the L4-5 level;

however, she does not possess an impairment or combination of

impairments, listed in or medically equal to one listed in

Appendix 1, Subpart P, Regulations No. 4.

3. The claimant’s allegations of pain and functional

limitations to the degree alleged are not supported by the

evidence in the record.

4. At all times relevant to this decision, the claimant

possessed the residual functional capacity to perform work

activities at the light exertional level on a regular and sustained

basis as described in the body of this decision. (20 CFR Section

416.967).

5. At the time she filed her application for Supplemental

Security Income benefits, the claimant was 41 years old, which

the Regulations define as a “younger person.”

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6. The claimant has a “limited” level of education.

7. The claimant has no past relevant work experience.

8. Taking into consideration the claimant’s exertional

capacity for light work as described above and the claimant’s

age, education, and lack of past relevant work experience, the

Administrative Law Judge concludes that, during the relevant

period at issue in this case, the claimant was capable of making

an adjustment to other unskilled light and sedentary work which

existed in significant numbers in the national economy.

Vocational expert testimony supports the conclusion that a

significant number of jobs existed that a person could perform

who possessed the capacities and limitations expressed in the

Administrative Law Judge’s hypothetical question, and giving

the claimant the benefit of the doubt, most closely paralleled

those of the claimant. The vocational expert witness provided

numerous examples of unskilled jobs available to such an

individual as described in the Administrative Law Judge’s

hypothetical question at the light exertional level[]. Examples

given were cashier, information clerk, waitress, food

prep/kitchen worker, packaging, and assembler.

9. The claimant has not been under a “disability,” as defined

in the Social Security Act, as amended, at any time through the

date of this decision. 

 

(Tr. 684) The Appeals Council affirmed the ALJ's decision (Tr. 641-643) and

thus, the hearing decision became the final decision of the Commissioner of

Social Security.

DISCUSSION

In supplemental security income cases where the claimant has no past

vocationally-relevant work, as here, it is the Commissioner’s burden to prove

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that claimant is capable of performing work that exists in significant numbers

in the national economy. See Allen v. Sullivan, 880 F.2d 1200, 1201 (11th Cir.

1989). Therefore, the Court’s task in this case is to determine whether the

Commissioner's decision to deny claimant benefits, on the basis that she can

perform those light and sedentary jobs identified by the vocational expert, is

supported by substantial evidence. Substantial evidence is defined as more

than a scintilla and means such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S.

389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). "In determining whether

substantial evidence exists, we must view the record as a whole, taking into

account evidence favorable as well as unfavorable to the [Commissioner's]

decision." Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986).

In this case, the plaintiff contends that the ALJ made the following

errors: (1) he erred in failing to find that her depression, carpal tunnel

syndrome and asthma are non-severe impairments; (2) he erred in finding that

she retains the residual functional capacity to perform the full range of light

work; and (3) he erred in concluding that her obesity imposes no significant

limitations of function on her ability to engage in work-related tasks. Because

the ALJ’s finding that plaintiff can perform the full range of light work is not

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supported by substantial evidence, this Court need not directly address the

other errors raised by plaintiff. See Pendley v. Heckler, 767 F.2d 1561, 1562

(11th Cir. 1985) (“Because the ‘misuse of the expert’s testimony alone

warrants reversal,’ we do not consider the appellant’s other claims.”).

In initially reviewing this case, it appeared that the denial of benefits

should be affirmed inasmuch as a review of the record reveals substantial

support for the ALJ’s determination that plaintiff’s obesity imposes no

significant limitations of function on her ability to engage in work-related

tasks, compare Tr. 673 (the ALJ’s analysis of plaintiff’s obesity and specific

finding that “[n]one of the treating or examining physicians have indicated any

specific limitations of function in connection with the claimant’s obesity and

she has not specifically alleged any functional limitations as a result of her

overweight condition.”) with Gray v. Barnhart, 2002 WL 31242221, * 6 (S.D.

Ind. 2002) (finding no evidence in the record which revealed that plaintiff’s

“obesity increased the severity of her symptoms or interfered with any routine

or necessary physical activity, nor did any physician opine that [p]laintiff’s

obesity may have exacerbated either her degenerative disc disease or her

asthma.”), and the ALJ recited specific and adequate reasons for rejecting the

PCEs and pain assessments completed by the primary treating physician, Dr.

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Paul Smith, compare Tr. 680 (ALJ’s analysis of Dr. Smith’s opinions as set

out on the PCEs and pain forms, finding same inconsistent with Smith’s own

medical records and clinical findings as well as the other medical evidence of

record) with Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997) (“We

have found ‘good cause’ to exist where the doctor’s opinion was not bolstered

by the evidence, or where the evidence supported a contrary finding. We have

also found good cause where the doctors’ opinions were contrary or

inconsistent with their own medical records.”). Having rejected the PCEs and

pain forms completed by the primary treating physician, this Court was

prepared to uphold the RFC finding for light work made by the ALJ and

grounded upon what the ALJ represented were “the opinions of the state

agency medical consultant. (Exhibit B-10F). As a non-examining physician,

the consultant’s opinions are not entitled to controlling weight, but must be

considered and weighed as those of a highly qualified physician who is an

expert in the evaluation of the medical issues in disability claims under the

Social Security Act.” (Tr. 681 (emphasis supplied)) A review of that PCE form

dated February 8, 2001, however, reveals not only that the document does not

acknowledge the severe impairment of lumbar degenerative disc disease found

by the ALJ (compare Tr. 529-536 with Tr. 684) but, more importantly, this

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form was not completed by a non-examining physician as represented by the

ALJ in his decision. Instead, this RFC assessment was completed by Cheryl

L. Jones, a social security disability specialist. (Compare Tr. 536 (Cheryl

Jones signature appears under the designation “MEDICAL CONSULTANT’S

SIGNATURE” which she has appropriately crossed out) with Tr. 425-427 &

528 (documentation reflecting that Jones is a disability specialist)) This Court

has previously indicated that “[r]eliance upon a form completed by a disability

examiner is clear error which must be corrected on remand.” Coblentz v.

Barnhart, CA 05-0169-C, Doc. 23, at 16 n.6 (indicating that a PCE opinion by

a disability examiner would arguably be entitled to no weight and certainly

does not constitute substantial evidence to support the ALJ’s RFC finding).

This proposition is equally applicable in this case since a failure to remand on

this basis would amount not only to affirmation of a gross misrepresentation

of the record but also to affirmation of conjecture by the ALJ that this

claimant, in light of all of her many physical impairments, can perform the

physical requirements of the full range of light work. See Wilson v. Barnhart,

284 F.3d 1219, 1227 (11th Cir. 2002) (ALJ’s articulation of specific jobs the

claimant can perform “must be supported by substantial evidence, not mere

intuition or conjecture.”). As this Court has held often in past decisions, “an

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ALJ’s RFC determination must be supported by the PCE of an examining

physician where, as here, the ALJ attempts to reject the PCE of the treating

physician.” See, e.g., Collum v. Barnhart, CA 03-0076-C, Doc. 15, at 8.

Because the ALJ does not base his RFC determination on the examination

findings and PCE of an examining physician, and instead has attempted to rely

upon the PCE completed by a disability specialist (erroneously identified as

a non-examining physician) to establish RFC while, at the same time, rejecting

the only PCEs completed by an examining physician, this case must be

remanded for further consideration and a proper determination of plaintiff’s

physical RFC. 

On remand, the ALJ will have the opportunity to address head-on

plaintiff’s argument that it was improper for him to find, in the most recent

decision on November 4, 2004, that her depression, carpal tunnel syndrome

and asthma are non-severe impairments (Tr. 670 (“The physical impairments

of asthma, gastroesophageal reflux disease [] with abdominal pain,

fibromyalgia, carpal tunnel syndrome, and degenerative joint disease of the left

knee have also been alleged as severe physical impairments. However, there

is no objective medical evidence to support the conclusion that these alleged

impairments entailed significant work-related limitations for a continuous

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2 Though this Court’s review of the denial of an application for supplemental

security income falls squarely under 42 U.S.C. § 1383(c)(3), remand is proper under 42 U.S.C. §

9

period of 12 months during the relevant period under consideration.”); see

also Tr. 679 (“[T]he Administrative Law Judge finds that the claimant’s

diagnosed impairments of adjustment disorder with depressed mood

(resolved), depressive disorder, NOS, somatoform disorder, anxiety disorder,

NOS, and adjustment disorder relating to medical problems do not constitute

severe mental impairments[.]”), in light of his earlier decision, on March 8,

2002, that such impairments were severe (Tr. 23 (“The claimant has alleged

severe impairments including migraine headaches, arm and back pain,

abdominal pain, carpal tunnel syndrome, and depression, based on the

requirements in the Regulations[,] 20 C.F.R. § 416.920(b).”)). If, in fact, the

defendant is correct in her brief that the failure to find that these impairments

are severe impairments constitutes mere harmless error, on remand the ALJ’s

consideration of these impairments as severe should have no effect on his

ultimate analysis. 

CONCLUSION

The Court ORDERS that the decision of the Commissioner of Social

Security denying plaintiff benefits be reversed and remanded pursuant to

sentence four of § 405(g),2

 see Melkonyan v. Sullivan, 501 U.S. 89, 111 S.Ct.

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405(g) because § 1383(c)(3) provides that “[t]he final determination of the Commissioner of

Social Security after a hearing under paragraph (1) shall be subject to judicial review as provided

in section 405(g) of this title to the same extent as the Commissioner’s final determinations

under section 405 of this title.” 

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2157, 115 L.Ed.2d 78 (1991), for further proceedings not inconsistent with this

decision. The remand pursuant to sentence four of § 405(g) makes the plaintiff

a prevailing party for purposes of the Equal Access to Justice Act, 28 U.S.C.

§ 2412, Shalala v. Schaefer, 509 U.S. 292, 113 S.Ct. 2625, 125 L.Ed.2d 239

(1993), and terminates this Court’s jurisdiction over this matter. 

DONE and ORDERED this the 7th day of July, 2006.

s/WILLIAM E. CASSADY 

 UNITED STATES MAGISTRATE JUDGE

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