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IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

OLIVIA RAYE MCCORMICK, *

*

Plaintiff, *

*

v. * CIVIL ACTION NO.: 14-0399-C

*

CAROLYN W. COLVIN, *

Acting Commissioner of Social *

Security, *

*

Defendant. *

MEMORANDUM OPINION AND ORDER

Plaintiff brings this action pursuant to 42 U.S.C. § 405 (g) and 42 U.S.C. § 1383(c)(3), 

seeking judicial review of a final decision of the Commissioner of Social Security denying her 

claim for Social Security disability and 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. (Docs. 23 & 24 (“In accordance with 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, . . . order the entry of a final judgment, and 

conduct all post-judgment proceedings.”).) Upon consideration of the administrative record, 

plaintiff’s brief, and the Commissioner’s brief, it is determined that the Commissioner’s decision 

denying benefits should be reversed and remanded for further proceedings not inconsistent with 

this decision.1 

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

be made to the Eleventh Circuit Court of Appeals. (See Docs. 23 & 24 (“An appeal from a 

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Plaintiff alleges disability due to epilepsy, migraine headaches, anxiety, seizures, and 

pseudo seizures. The Administrative Law Judge (the “ALJ”) made the following relevant 

findings:

1. The claimant meets the insured status requirements of the Social 

Security Act through March 1, 2009.

2. The claimant has not engaged in substantial gainful activity since 

January 30, 2008, the application date.

3. The claimant has the following severe impairments: seizures, pseudo 

seizures, migraines, and anxiety.

The Administrative Law Judge finds that the claimant has impairments that are 

“severe” within the meaning of the regulations and those impairments 

significantly limit the claimant’s ability to perform basic work activities.

4. 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, (20 

CFR 416.920(d), 416.925, and 416.926).

The claimant’s impairments have been considered individually and in 

combination, and the impairments do not meet or equal any of the listings. The 

claimant has not been presented any medical findings, arising from the application 

of medically acceptable clinical or laboratory diagnostic techniques that prove 

that the claimant met or equaled a listing for the duration period. There are no 

acceptable medical sources that treated [her], examined [her] or who examined 

[her] records, who have opined that [her] condition meets or medically equals a 

listing.

The severity of the claimant’s mental impairment does not meet or medically 

equal the criteria of listing 12.06. In making this finding, the undersigned has 

considered whether the “paragraph B” criteria are satisfied. To satisfy the 

“paragraph B” criteria, the mental impairment must result in at least two of the 

following: marked restriction of activities of daily living, marked difficulties in 

maintaining social functioning, marked difficulties in maintaining concentration, 

persistence, or pace; or repeated episodes of decompensation, each of extended 

duration. A marked limitation means more than moderate but less than extreme. 

Repeated episodes of decompensation, each of extended duration, means three 

																																																																																																																																																																																																			

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.”))

Case 1:14-cv-00399-C Document 27 Filed 08/07/15 Page 2 of 16
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episodes within 1 year, or an average of once every 4 months, each lasting for at 

least 2 weeks.

In activities of daily living, the claimant has mild restriction. The claimant 

reported she does the laundry, cooks, washes dishes and dusts. She stated she 

cares for her dog and watches her friend’s children when she feels like it. She 

reported she cares for her personal needs. She drives a car and goes out of the 

house every day.

In social functioning, the claimant has moderate difficulties. The claimant 

watches her friend’s children when she feels like it. She shops in stores. She 

visits with friends and family.

With regard to concentration, persistence or pace, the claimant has moderate 

difficulties. The claimant reported she can pay bills, count change and handle a 

checking and savings account. She stated she likes to make photo albums.

As for episodes of decompensation, the claimant has experienced no episodes 

decompensation which have been of extended duration. No problems have been 

reported or alleged in this area of functioning.

Because the claimant’s mental impairment does not cause at least two “marked” 

limitations or one “marked” limitation and “repeated” episodes of 

decompensation, each of extended duration, the “paragraph B” criteria are not 

satisfied.

The undersigned has also considered whether the “paragraph C” criteria are 

satisfied. In this case, the evidence fails to establish the presence of “paragraph 

C” criteria.

The limitations identified in the “paragraph B” criteria are not a residual 

functional capacity assessment but are used to rate the severity of mental 

impairments at steps 2 and 3 of the sequential evaluation process. The mental 

residual functional capacity assessment used at steps 4 and 5 of the sequential 

evaluation process requires a more detailed assessment by itemizing various 

functions contained in the broad categories found in paragraph B of the adult 

mental disorders listings in 12.00 of the Listing of Impairments. Therefore, the 

following residual functional capacity assessment reflects the degree of limitation 

the undersigned has found in the “paragraph B” mental function analysis.

5. After careful consideration of the entire record, the undersigned finds 

that the claimant has the residual functional capacity to perform a full range

of work at all exertional levels but with the following nonexertional

limitations; she should avoid work at unprotected heights and with 

dangerous machinery. She can perform simple tasks. She can follow short, 

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simple instructions. She should have occasional contact with the general 

public.

In making this finding, the undersigned has considered all symptoms and the 

extent to which these symptoms can reasonably be accepted as consistent with the 

objective medical evidence and other evidence, based on the requirements of 20 

CFR 404.1529 and 416.929 and SSRs 96-4p and 96-7p. The undersigned has also 

considered opinion evidence in accordance with the requirements of 20 CFR 

404.1527 and 416.927 and SSRs 96-2p, 96-5p, 96-6p and 06-3p.

In considering the claimant’s symptoms, the undersigned must follow a two-step

process in which it must first be determined whether there is an underlying 

medically determinable physical or mental impairment(s) – i.e., an impairment(s) 

that can be shown by medically acceptable clinical and laboratory diagnostic 

techniques – that could reasonably be expected to produce the claimant’s pain or 

other symptoms.

Second, once an underlying physical or mental impairment(s) that could 

reasonably be expected to produce the claimant’s pain or other symptoms has 

been shown, the undersigned must evaluate the intensity, persistence and limiting 

effects of the claimant’s symptoms to determine the extent to which they limit the 

claimant’s functioning. For this purpose, whenever statements about the 

intensity, persistence, or functionally limiting effects of pain or other symptoms 

are not substantiated by objective medical evidence, the undersigned must make a 

finding on the credibility of the statements based on a consideration of the entire 

case record.

After careful consideration of the evidence, the undersigned finds 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.

In terms of the claimant’s alleged seizures, the Administrative Law Judge assigns 

determinative weight to the opinion of John Yager, M.D., who examined the 

claimant on October 26, 2012. The Administrative Law Judge notes that Dr. 

Yager’s examination was essentially normal. Neurological exam revealed the 

visual fields were full to confrontation. Extraocular muscles were intact. The 

face was symmetric. The tongue protruded in the midline.

The palate elevated symmetrically. Dr. Yager noted the claimant flinched away 

from the tuning fork when he tried to test her. DTRs were 2+ and equal. The 

claimant could do finger-to-nose quite well. Finger opposition was well-done. 

Grip strengths were equal and biceps, triceps ad deltoid strengths were equal. The 

Administrative Law Judge specifically notes that the claimant stated she did not 

take any medications because it causes her face to twitch and she did not like that. 

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The Administrative Law Judge finds it extremely significant that Dr. Yager found 

the claimant seemed to be embellishing her problems. He states she was not sure 

that she really has a full seizure disorder. He did note that if it was found that she 

did indeed have a seizure disorder, she should not work at unprotected heights, 

drive or operate machinery. He further felt the claimant’s problems may be more 

psychiatric and she should be evaluated from that stand point.

Supporting the Administrative Law Judge’s finding that the claimant can perform 

work activity is the report from Peter Bertucci, M.D., the State Agency physician. 

The Administrative Law Judge finds it extremely significant that Dr. Bertucci 

found the claimant had no physical limitations. He only found that she should 

avoid concentrated exposure to hazards.

The Administrative Law Judge recognizes that Dr. Villarreal completed a Medical 

Source Statement on July 10, 2012, which she found the claimant can 

occasionally lift/carry up to 10 pounds. She found the claimant can sit, stand and 

walk for 30 minutes at a time and for one hour during an 8-hour day. She found 

the claimant would need a job that permits shifting positions at will. She stated 

the claimant’s condition frequently interferes with the attention and concentration 

required to perform simple work-related tasks. She further found the claimant is 

very nervous and unable to handle fine manipulation. The Administrative Law 

Judge notes that Dr. Villarreal completed a prior residual functional capacity on 

which she indicated the claimant is unable to lift any amount of weight. She 

found the claimant can sit for 60 minutes at a time and stand/walk for 5 minutes at 

a time. She indicated the claimant could sit for one hour during an 8-hour day 

and never stand/walk. She also completed a Seizure Questionnaire on which she

found the claimant is very restricted. The Administrative Law Judge does not 

give any weight to those residual functional capacity forms because they not only 

conflict with Dr. Villarreal’s own records but with the remainder of the evidence. 

The Administrative Law Judge specifically notes that there is no evidence that the 

claimant has received regular and ongoing treatment for her alleged complaints. 

In addition, no tests have been administered that have diagnosed the claimant with 

a seizure disorder. Dr. Villarreal also completed a Mental Capacity Assessment 

questionnaire on which she indicated the claimant has marked limitations in her 

ability to understand and remember; sustain concentration and persistence and in 

her ability to interact socially. The Administrative Law Judge does not give any 

weight to that opinion because i[t] totally conflicts with the remainder of the 

medical evidence. The claimant has exhibited the capacity to attend college and 

sustain work activity and there is no evidence to indicate that ability no longer 

exists. The Administrative Law Judge notes that Dr. Villarreal stated the claimant 

has poor emotional control and is at times irrational. Again, the Administrative 

Law Judge notes that no evidence has been submitted to indicate the claimant is 

as disabled as Dr. Villarreal stated. In fact, the majority of Dr. Villarreal’s 

records indicate the claimant has only been treated for various complaints, 

including respiratory problems, nasal congestion, sore throat, etc.

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The Administrative Law Judge finds that the records do not support marked to 

extreme limitations in all categories, and actually indicate an impairment with a 

Global Assessment of Functioning (GAF) of 60. The Diagnostic and Statistical 

Manual of Mental Disorders, Fourth Edition (DSM-IV) describes GAF in the 

range of 51-60 as an indication of moderate symptoms or moderate difficulty in 

social, occupational, or school functioning. Furthermore, [Dr.] Villarreal’s 

opinion is not supported by her own treatment records. There has been no 

evidence to support marked to extremes in all categories.

With regard to the alleged anxiety, the Administrative Law Judge considered the 

records from Southwest Alabama Behavioral Health Center. The evidence 

reveals the claimant has been treated with counseling and medication. The 

Administrative Law Judge specifically notes that the treatment notes indicate the 

claimant has been under stress because of her inability to pay her bills and 

grieving over the death of her father. The Administrative Law Judge finds it 

extremely significant that Dr. Cranton, the treating psychiatrist, found her Global 

Assessment of Functioning (GAF) was 60, which indicates only moderate 

symptoms or moderate difficulty in social, occupational or school functioning.

In sum, the above residual functional capacity assessment is supported by the 

claimant’s own statements. The Administrative Law Judge notes that the 

claimant stated she [] cares [for] her friend’s children when she feels like it. She 

cares for her own dog, does the laundry and other household chores. She watches 

TV. She is able to care for her personal needs. She stated she drives and shops in 

stores. She is able to pay bills, count change and handle a checking and savings 

account. She does homework given to her by the therapist and visits with friends.

6. Based on the vocational expert testimony, the claimant is unable to 

perform any past relevant work.

The claimant has past relevant work as a loan clerk and cashier. Accordingly, the 

claimant is unable to perform past relevant work.

7. The claimant was born on October 17, 1978, and was 29 years old, 

which is defined as a younger individual age 18-49, on the alleged disability 

onset date.

8. The claimant has at least a high school education and is able to 

communicate in English.

9. Transferability of job skills is not an issue in this case because the 

claimant’s past relevant work is unskilled (20 CFR 404.1568 and 416.968).

10. Based on vocational expert testimony and considering the claimant’s 

age, education, work experience, and residual functional capacity, there are 

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jobs that exist in significant numbers in the national economy that the 

claimant can perform.

In determining whether a successful adjustment to other work can be made, the 

undersigned must consider the claimant’s residual functional capacity, age, 

education, and work experience in conjunction with the Medical-Vocational 

Guidelines, 20 CFR Part 404, Subpart P, Appendix 2. If the claimant can perform 

all or substantially all of the exertional demands at a given level of exertion, the 

medical-vocational rules direct a conclusion of either “disabled” or “not disabled” 

depending upon the claimant’s specific vocational profile. When the claimant 

cannot perform substantially all of the exertional demands of work at a given 

level of exertion and/or has nonexetional limitations, the medical-vocational rules 

are used as a framework for decision-making unless there is a rule that directs a 

conclusion of “disabled” without considering the additional exertional and/or 

nonexertional limitations. If the claimant has solely nonexertional limitations, 

section 204.00 in the Medical-Vocational Guidelines provides a framework for 

decision-making.

The claimant’s ability to perform work at all exertional levels has been 

compromised by nonexertional limitations. To determine the extent to which 

these limitations erode the occupational base of unskilled work at all exertional 

levels, the Administrative Law Judge asked the vocational expert whether jobs 

exist in the national economy for an individual with the claimant’s age, education, 

work experience, and residual functional capacity. The vocational expert testified 

that given all of these factors the individual would be able to perform the 

requirements of representative occupations such as food prep worker of which 

there are 775,140 jobs in the national economy and 9.760 in the state; dishwasher 

of which there are 509,550 jobs in the national economy and 36,030 in the state; 

and laundry worker of which there are 887,890 jobs in the national economy and 

11,308 in the state.

Pursuant to SSR 00-4p, the undersigned has determined that the vocational 

expert’s testimony is consistent with the information contained in the Dictionary 

of Occupational Titles.

Based on the testimony of the vocational expert, the undersigned concludes that, 

considering the claimant’s age, education, work experience, and residual 

functional capacity, the claimant is capable of making a successful adjustment to 

other work that exists in significant numbers in the national economy. A finding 

of “not disabled” is therefore appropriate under the framework of section 204.00 

in the Medical-Vocational Guidelines.

11. The claimant has not been under a disability, as defined in the Social 

Security Act, from January 30, 2008, through the date of this decision.

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(Doc. 15, Tr. 163-169) (internal citations omitted; emphasis in original). The Appeals Council 

affirmed the ALJ’s decision, (Id., Tr. 5-8), and, thus, the hearing decision became the final 

decision of the Commissioner of Social Security.

DISCUSSION

A claimant is entitled to an award of Social Security disability and supplemental security 

income benefits when she is unable to engage in substantial gainful activity by reason of any 

medically determinable physical or mental impairment which can be expected to result in death 

or last for a continuous period of not less than 12 months. See 20 C.F.R. § 416.905(a) (2014). In 

determining whether a claimant has met her burden of proving disability, the Commissioner 

follows a five-step sequential evaluation process. See 20 C.F.R. § 416.920. At step one, if a 

claimant is performing substantial gainful activity, she is not disabled. 20 C.F.R. § 416.920(b). 

At the second step, if a claimant does not have an impairment or combination of impairments 

that significantly limits her physical or mental ability to perform basic work activities, she is not 

disabled. 20 C.F.R. § 416.920(c). At step three, if a claimant proves that her impairments meet 

or medical equal one of the listed impairments set forth in Appendix 1 to Subpart P of Part 404, 

the claimant will be considered disabled without consideration of age, education, and work 

experience. 20 C.F.R. § 416.920(d). At the fourth step, if the claimant is unable to prove the 

existence of a listed impairment, she must prove that her physical and/or mental impairments 

prevent her from performing her past relevant work. 20 C.F.R. § 416.920(f). And, at the fifth 

step, the Commissioner must consider the claimant’s residual functional capacity, age, education, 

and past work experience to determine whether the claimant can perform other work besides past 

relevant work. 20 C.F.R. § 416.920(g). Plaintiff bears the burden of proof through the first four 

steps of the sequential evaluation process, see Bowen v. Yuckert, 482 U.S. 137, 146 n.5, 107 

Case 1:14-cv-00399-C Document 27 Filed 08/07/15 Page 8 of 16
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S.Ct. 2287, 2294 n.5, 96 L.Ed.2d 119 (1987), and while the burden of proof shifts to the 

Commissioner at the fifth step of the process to establish other jobs existing in substantial 

numbers in the national economy that the claimant can perform,2 the ultimate burden of proving 

disability never shifts from the plaintiff, see, e.g., Green v. Social Security Administration, 223 

Fed.Appx. 915, 923 (11th Cir. May 2, 2007) (“If a claimant proves that she is unable to perform 

her past relevant work, in the fifth step, ‘the burden shifts to the Commissioner to determine if 

there is other work available in significant numbers in the national economy that the claimant is 

able to perform.’ . . . Should the Commissioner ‘demonstrate that there are jobs the claimant can 

perform, the claimant must prove she is unable to perform those jobs in order to be found 

disabled.’”).3

The task for the Magistrate Judge is to determine whether the Commissioner’s decision to 

deny claimant benefits, on the basis that she can perform those jobs identified by the vocational 

expert (“VE”), is supported by substantial evidence. The ALJ found that she could perform a 

full range of work at all exertional levels but with the following nonexertional limitations: she 

should avoid work at unprotected heights and with dangerous machinery; she can perform simple 

tasks; she can follow short, simple instructions; she should have occasional contact with the 

general public. Given this RFC, the VE determined that she could perform the work required of 

a food prep worker of which there are 775,140 jobs in the national economy and 9.760 in the 

state; a dishwasher of which there are 509,550 jobs in the national economy and 36,030 in the 

state; and a laundry worker of which there are 887,890 jobs in the national economy and 11,308 

																																																												 2

	 	 See, e.g., McManus v. Barnhart, 2004 WL 3316303, *2 (M.D. Fla. Dec. 14, 2004) (“The burden [] 

temporarily shifts to the Commissioner to demonstrate that ‘other work’ which the claimant can perform 

currently exists in the national economy.”).

3

			 “Unpublished opinions are not considered binding precedent, but they may be cited as persuasive 

authority.” 11th Cir.R. 36-2.

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in the state. 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).4 Courts are precluded, however, from “deciding the facts anew or reweighing the evidence.” Davison v. Astrue, 370 Fed. Appx. 995, 996 (11th Cir. Apr. 1, 2010) 

(per curiam) (citing Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005)). And, “[e]ven if the 

evidence preponderates against the Commissioner’s findings, [a court] must affirm if the 

decision reached is supported by substantial evidence.” Id. (quoting Crawford v. Commissioner 

of Social Security, 363 F.3d 1155, 1158-59 (11th Cir. 2004).

The Court considers Plaintiff Olivia Raye McCormick (“Plaintiff” or “McCormick”) to 

be offering three reasons why the Commissioner’s decision to deny her Social Security disability 

and supplemental security income benefits is in error (i.e., not supported by substantial 

evidence): (1) the ALJ accorded improper weight to the various doctors’ 

evaluations/examinations contained in the record and/or erred in failing to obtain further 

consultative examinations in light of her rejection of the evaluations of Dr. Marie Villarreal (“Dr. 

Villarreal”) and Dr. Roman Kesler (“Dr. Kesler”), as well as the recommendation of Dr. John 

Yager (“Dr. Yager”) in his consultative examination; (2) the ALJ’s determination and finding 

that claimant has the residual functional capacity to perform a full range of work at all exertional 

levels but with the following nonexertional limitations: she should avoid work at unprotected 

heights and with dangerous machinery; she can perform simple tasks; she can follow short, 

																																																												 4

			This Court’s review of the Commissioner’s application of legal principles, however, is plenary. Walker 

v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987). 

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simple instructions; and she should have occasional contact with the general public, is not 

supported by substantial evidence because of the ALJ’s failure to consider relevant evidence and 

testimony of record, the ALJ’s failure to properly document the basis for giving no credibility to 

the opinions and reports of McCormick’s treating physicians, and the ALJ’s failure to address 

the opinions and reports of McCormick’s specialist treating physician; and (3) the Appeals 

Council’s failure, after being notified that McCormick was diagnosed with advanced cancer two 

months after the ALJ’s decision, to remand and require the ALJ to determine when the cancer 

first began affecting McCormick’s ability to work. In this instance, the undersigned need not 

consider plaintiff’s first and third assignments of error inasmuch as it is clear that the ALJ’s RFC 

determination is not supported by substantial evidence

Initially, the Court notes that the responsibility for making the residual functional 

capacity determination rests with the ALJ. Compare 20 C.F.R. § 416.946(c) (“If your case is at 

the administrative law judge hearing level . . . , the administrative law judge . . . is responsible 

for assessing your residual functional capacity.”) with, e.g., Packer v. Commissioner, Social 

Security Admin., 542 Fed. Appx. 890, 891-92 (11th Cir. Oct 29, 2013) (per curiam) (“an RFC 

determination is an assessment, based on all relevant evidence, of a claimant’s remaining ability 

to do work despite her impairments. There is no rigid requirement that the ALJ specifically refer 

to every piece of evidence, so long as the ALJ’s decision is not a broad rejection, i.e, where the 

ALJ does not provide enough reasoning for a reviewing court to conclude that the ALJ 

considered the claimant’s medical condition as a whole.” (internal citation omitted)). A 

plaintiff’s RFC – which “includes physical abilities, such as sitting, standing or walking, and 

mental abilities, such as the ability to understand, remember and carry out instructions or to 

respond appropriately to supervision, co-workers and work pressure[]” – “is a[n] [] assessment of 

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what the claimant can do in a work setting despite any mental, physical or environmental 

limitations caused by the claimant’s impairments and related symptoms.” Watkins v. 

Commissioner of Social Security, 457 Fed. Appx. 868, 870 n.5 (11th Cir. Feb. 9, 2012) (citing 20 

C.F.R. §§ 404.1545(a)-(c), 416.945(a)-(c)). And, of course, it is clear that the ALJ’s RFC 

determination is as important at the fourth step of the sequential evaluation process as it is at the 

fifth. See Phillips v. Barnhart, 357 F.3d 1232, 1238-39 (11th Cir. 2004).

At the fourth step, the ALJ must assess: (1) the claimant’s residual 

functional capacity []; and (2) the claimant’s ability to return to 

[his] past relevant work. As for the claimant’s RFC, the 

regulations define RFC as that which an individual is still able to 

do despite the limitations caused by his or her impairments. 

Moreover, the ALJ will assess and make a finding about the 

claimant’s residual functional capacity based on all the relevant 

medical and other evidence in the case. Furthermore, the RFC 

determination is used to both determine whether the claimant: (1) 

can return to [his] past relevant work under the fourth step; and (2) 

can adjust to other work under the fifth step . . . . If the claimant 

can return to [his] past relevant work, the ALJ moves on to step 5.

Id. (internal citations, quotation marks, and brackets omitted). In this case, the ALJ made the 

following RFC determination: 

After careful consideration of the entire record, the 

undersigned finds that that claimant has the residual 

functional capacity to perform a full range of work at all 

exertional levels but with the following nonexertional 

limitations: she should avoid work at all unprotected heights 

and with dangerous machinery. She can perform simple tasks. 

She can follow short, simple instructions. She should have 

occasional contact with the general public. 

(Tr. 158-169 (emphasis in original).)

To find that an ALJ’s RFC determination is supported by substantial evidence, it must be 

shown that the ALJ has “provide[d] a sufficient rationale to link” substantial record evidence “to 

the legal conclusions being reached.” Ricks v. Astrue, 2012 WL 1020428, *9 (M.D. Fla. March 

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27, 2012) (quoting Russ v. Barnhart, 363 F.Supp.2d 1345, 1347 (M.D. Fla. 2005)); compare id. 

with Packer v. Astrue, 2013 WL 593497, *4 (S.D. Ala. Feb. 14, 2013) (“[T]he ALJ must link the 

RFC assessment to specific evidence in the record bearing upon the claimant’s ability to perform 

the physical, mental, sensory, and other requirements of work.’”), aff’d, 542 Fed. Appx. 890 

(11th Cir. Oct. 29, 2013); see also Hanna v. Astrue, 395 Fed. Appx. 634, 636 (11th Cir. Sept. 9, 

2010) (per curiam) (“The ALJ must state the grounds for his decision with clarity to enable us to 

conduct meaningful review . . . . Absent such explanation, it is unclear whether substantial 

evidence supported the ALJ’s findings; and the decision does not provide a meaningful basis 

upon which we can review [a plaintiff’s] case.” (internal citation omitted)).5

In this case, the undersigned cannot find that the ALJ has provided the required “linkage” 

between the record evidence and her RFC determination necessary to facilitate this Court’s

meaningful review of her decision. The ALJ recognized that Dr. Villarreal completed a Medical 

Source Statement, a prior residual functional capacity, a Seizure Questionnaire, and a Mental 

Capacity Assessment Questionnaire, all of which were very restrictive in what McCormick could 

do, both physically and mentally. However, despite voluminous medical records from Dr. 

																																																												 5

 It is the ALJ’s (or, in some cases, the Appeals Council’s) responsibility, not the responsibility of the 

Commissioner’s counsel on appeal to this Court, to “state with clarity” the grounds for an RFC 

determination. Stated differently, “linkage” may not be manufactured speculatively by the Commissioner 

– using “the record as a whole” – on appeal, but rather, must be clearly set forth in the Commissioner’s 

decision. See, e.g., Durham v. Astrue, 2010 WL 3825617, *3 (M.D. Ala. Sept. 24, 2010) (rejecting the 

Commissioner’s request to affirm an ALJ’s decision because, according to the Commissioner, overall, the 

decision was “adequately explained and supported by substantial evidence in the record;” holding that 

affirming that decision would require that the court “ignor[e] what the law requires of the ALJ; the court 

must reverse [the ALJ’s decision] when the ALJ has failed to provide the reviewing court with sufficient 

reasoning for determining that the proper legal analysis has been conducted’” (quoting Hanna, 395 Fed. 

Appx. At 636 (internal quotation marks omitted))); see also id. at *3 n.4 (“In his brief, the Commissioner 

sets forth the evidence on which the ALJ could have relied . . . . There may very well be ample reason, 

supported by the record, for [the ALJ’s ultimate conclusion]. However, because the ALJ did not state his 

reasons, the court cannot evaluate them for substantial evidentiary support. Here, the court does not hold 

that the ALJ’s ultimate conclusion is unsupportable on the present record; the court holds only that the 

ALJ did not conduct the analysis that the law requires him to conduct.” (emphasis in original)); Patterson 

v. Bowen, 839 F.2d 221, 225 n.1 (4th Cir. 1988) (“We must . . . affirm the ALJ’s decision only upon the 

reasons he gave.”).

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Villarreal from 2009 through 2011, all of which noted in whole or in part, that Dr. Villarreal 

diagnosed McCormick with epilepsy, migraine headaches, anxiety, seizures, pseudo seizures, 

pain disorder, PTSD, personality disorder, and back pain, the ALJ made the conclusory findings 

that the above-referenced forms were not supported by Dr. Villarreal’s records. Thus, the ALJ 

gave Dr. Villarreal’s completed questionnaires and statements no credibility. It is clear that the 

ALJ failed to provide an adequate basis as to why Dr. Villarreal’s records did not support her 

medical and mental restrictions. Moreover, Dr. Villarreal’s records do, in fact, address all of the 

medical bases for her restrictions. The ALJ’s RFC assessment fails to state specific evidence in 

Dr. Villarreal’s records bearing upon McCormick’s ability to perform the physical, mental, 

sensory and other requirements of work. In short, the ALJ’s decision does not state with 

sufficient clarity the basis for giving Dr. Villarreal’s opinions and statements no credibility.

Additionally, Dr. Kesler, a neurosurgeon to whom Dr. Villarreal referred McCormick for 

treatment of her seizures, completed a seizure questionnaire and other forms that were very 

restrictive as to what claimant could do as a result of her seizures. Dr. Kesler also diagnosed 

McCormick with seizures and pseudo seizures. The ALJ, however, failed to address Dr. Kesler’s 

records and opinions, despite the fact that Dr. Kesler was a treating specialist. The failure to 

address Dr. Kesler’s questionnaire and treatment is a fatal error. See Nyberg v. Comm'r of Soc. 

Sec., 179 F. App'x 589, 590-91 (11th Cir. 2006) ("[T]he ALJ '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.'" (quoting MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986))); id.

("[W]e cannot say that the failure to address [the treating physician's] opinion was harmless 

without re-weighing the evidence and engaging in conjecture that invades the province of the 

ALJ."); Green v. Colvin, No. CA 13-0368-WS-C, 2014 WL 936415 (S.D. Ala. Mar. 11, 2014) 

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(finding reversible error where the ALJ failed to address the opinion of the Plaintiff's treating 

physician). The evidence supports a finding that Dr. Kesler be deemed a treating physician 

because he had an ongoing relationship with the Plaintiff whereby he saw her several times to 

treat her for her seizure disorder, (Tr. 615-19, 841-42). See Nyberg, 179 F. App'x at 591 ("[A] 

treating physician is one who not only provides (or has provided) the claimant with medical 

treatment or evaluation, but also has (or has had) an 'ongoing treatment relationship' with the 

claimant." (citing 20 C.F.R. § 404.1502)). Even if the ALJ did not consider Dr. Kesler a treating 

physician, which the Court has no way of knowing because the ALJ did not address his care, the 

ALJ still needed to explain the weight given Dr. Kesler's opinions. See McCloud v. Barnhart, 

166 F. App'x 410, 419 (11th Cir. 2006) (remanding where the ALJ failed to explain the weight 

given to the report of a consulting psychologist or the reasons for discrediting his opinion); 

Sharfarz v. Bowen, 825 F.2d 278, 279-80 (11th Cir. 1987) ("[T]he ALJ was required to state with 

particularity the weight he gave the different medical opinions and the reasons therefor." 

(citation omitted)). Consequently, the ALJ’s decision lacks the clarity required for the Court to 

perform a meaningful review.

This Court cannot find substantial evidence in the record supporting the ALJ’s contention 

that Dr. Villarreal’s records do not support the restrictions she placed on McCormick in her 

Residual Functional Capacity, Seizure Questionnaire, Medical Source Statement and Mental 

Capacity Questionnaire. Moreover, the ALJ failed to mention, much less consider, the records 

and restrictions of activity placed on McCormick by Dr. Kesler, her treating specialist to whom 

McCormick had been referred by Dr. Villarreal. The ALJ’s decision lacks sufficient reasoning 

to establish that the proper legal analysis has been conducted. Since the ALJ omitted the 

evidence of record from Dr. Kesler and failed to provide linkage between her claims of no 

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supporting records and Dr. Villarreal’s restrictions of activity, this case is due to be remanded for 

further proceedings not inconsistent with this decision.6 

CONCLUSION

In light of the foregoing, it is ORDERED that the decision of the Commissioner of 

Social Security denying plaintiff benefits be reversed and remanded pursuant to sentence four of 

42 U.S.C. § 405(g), see Melkonyan v. Sullivan, 501 U.S, 89, 111, S.Ct. 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 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 6th day of August, 2015.

s/WILLIAM E. CASSADY_____________

UNITED STATES MAGISTRATE JUDGE

																																																												 6

			The undersigned recognizes that the ALJ gave great weight to the consultative examination of Dr. 

Yager, but notes that Dr. Yager’s examination was inconclusive, opining that McCormick “might” be 

embellishing her problems and “might” have psychiatric issues as opposed to actual seizures. Further, he 

recommended further testing to determine the existence of seizures, which the ALJ neglected to do, as has 

been raised by McCormick.

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