IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

KENNETH A. WRIGHT, )

Plaintiff, )

)

v. ) CIVIL ACTION NO. 14-00465-N

)

CAROLYN W. COLVIN, Acting )

Commissioner of Social Security, )

Defendant. )

MEMORANDUM OPINION AND ORDER

Social Security Claimant/Plaintiff Kenneth A. Wright has brought this action 

under 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of a final decision 

of the Defendant Commissioner of Social Security (“the Commissioner”) denying his

applications for disability insurance benefits (“DIB”) under Title II of the Social 

Security Act, 42 U.S.C. § 401, et seq., and supplemental security income (“SSI”) 

under Title XVI of the Social Security Act, 42 U.S.C. § 1381, et seq. With the 

consent of the parties (see Doc. 18), the Court has designated the undersigned 

Magistrate Judge to conduct all proceedings and order the entry of judgment in this 

civil action, in accordance with 28 U.S.C. § 636(c), Federal Rule of Civil Procedure 

73, and S.D. Ala. GenLR 73. (See Doc. 19).

Upon consideration of the parties’ briefs (Docs. 14, 15) and the administrative 

record (Doc. 13) (hereinafter cited as “(R. [page number(s) in lower-right corner of 

transcript])”), 1 the Court finds that the Commissioner’s decision is due to be 

 1 With the Court’s consent, the parties jointly waived the opportunity for oral argument. 

(See Docs. 17, 20).

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REVERSED and REMANDED.

I. Background

On March 10, 2011, Wright filed applications for DIB and SSI with the Social 

Security Administration (“SSA”),2 both alleging disability beginning September 25, 

2010.3 (R. 19). After his applications were initially denied, Wright requested a 

hearing, which was held before an Administrative Law Judge (“ALJ”) for the SSA 

on March 13, 2013. (R. 19). On April 8, 2013, the ALJ issued an unfavorable 

decision on Wright’s applications, finding him “not disabled” under the Social 

Security Act. (See R. 16 – 29). 

Wright requested review of the ALJ’s decision by the Appeals Council for the 

SSA’s Office of Disability Adjudication and Review. The Commissioner’s decision on 

Wright’s applications became final when the Appeals Council denied Wright’s

request for review on September 2, 2014. (See R. 1 – 5). On October 6, 2014, 

Wright filed this action under §§ 405(g) and 1383(c)(3) for judicial review of the 

Commissioner’s final decision. (Doc. 1). See 42 U.S.C. § 405(g) (“Any individual, 

 2 The Social Security Act's general disability insurance benefits program (‘DIB’) 

provides income to individuals who are forced into involuntary, premature 

retirement, provided they are both insured and disabled, regardless of indigence. 

See 42 U.S.C. 423(a). The Social Security Act's Supplemental Security Income (‘SSI’) 

is a separate and distinct program. SSI is a general public assistance measure 

providing an additional resource to the aged, blind, and disabled to assure that 

their income does not fall below the poverty line. Eligibility for SSI is based upon 

proof of indigence and disability. See 42 U.S.C. 1382(a), 1382c(a)(3)(A)-(C).

3 “For SSI claims, a claimant becomes eligible in the first month where she is both 

disabled and has an SSI application on file. 20 C.F.R. § 416.202–03 (2005). For 

DIB claims, a claimant is eligible for benefits where she demonstrates disability on 

or before the last date for which she were insured. 42 U.S.C. § 423(a)(1)(A) (2005).” 

Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005) (per curiam).

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after any final decision of the Commissioner of Social Security made after a hearing 

to which he was a party, irrespective of the amount in controversy, may obtain a 

review of such decision by a civil action commenced within sixty days after the 

mailing to him of notice of such decision or within such further time as the 

Commissioner of Social Security may allow.”); 42 U.S.C. § 1383(c)(3) (“The final 

determination of the Commissioner of Social Security after a hearing [for SSI 

benefits] 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.”); Ingram v. Comm'r of Soc. Sec. Admin., 496 F.3d 1253, 1262 (11th Cir. 

2007) (“The settled law of this Circuit is that a court may review, under sentence 

four of section 405(g), a denial of review by the Appeals Council.”).

II. Standard of Review

“In Social Security appeals, [the Court] must determine whether the 

Commissioner’s decision is ‘ “supported by substantial evidence and based on 

proper legal standards. Substantial evidence is more than a scintilla and is such 

relevant evidence as a reasonable person would accept as adequate to support a 

conclusion.” ’ ” Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 

2011) (quoting Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 

2004) (per curiam) (internal citation omitted) (quoting Lewis v. Callahan, 125 F.3d 

1436, 1439 (11th Cir. 1997))). However, the Court “ ‘may not decide the facts anew, 

reweigh the evidence, or substitute our judgment for that of the [Commissioner].’ ” 

Winschel, 631 F.3d at 1178 (quoting Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 

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(11th Cir. 2004) (alteration in original) (quoting Bloodsworth v. Heckler, 703 F.2d 

1233, 1239 (11th Cir. 1983))). “ ‘Even if the evidence preponderates against the 

[Commissioner]’s factual findings, we must affirm if the decision reached is 

supported by substantial evidence.’ ” Ingram, 496 F.3d at 1260 (quoting Martin v. 

Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)).

 “Yet, within this narrowly circumscribed role, [courts] do not act as 

automatons. [The court] must scrutinize the record as a whole to determine if the 

decision reached is reasonable and supported by substantial evidence[.]” 

Bloodsworth, 703 F.2d at 1239 (citations and quotation omitted). “In determining 

whether substantial evidence exists, [a court] must...tak[e] into account evidence 

favorable as well as unfavorable to the [Commissioner’s] decision.” Chester v. 

Bowen, 792 F.2d 129, 131 (11th Cir. 1986). Moreover, “[t]here is no 

presumption...that the Commissioner followed the appropriate legal standards in 

deciding a claim for benefits or that the legal conclusions reached were valid. 

Instead, [the court] conduct[s] ‘an exacting examination’ of these factors.” Miles v. 

Chater, 84 F.3d 1397, 1400 (11th Cir. 1996) (per curiam) (citing Martin v. Sullivan, 

894 F.2d 1520, 1529 (11th Cir. 1990)) (internal citation omitted). In sum, courts 

“review the Commissioner’s factual findings with deference and the Commissioner’s 

legal conclusions with close scrutiny.” Doughty v. Apfel, 245 F.3d 1274, 1278 (11th 

Cir. 2001). See also Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005) (per 

curiam) (“In Social Security appeals, we review de novo the legal principles upon 

which the Commissioner's decision is based. Chester v. Bowen, 792 F.2d 129, 131 

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(11th Cir. 1986). However, we review the resulting decision only to determine 

whether it is supported by substantial evidence. Crawford v. Comm'r of Soc. Sec.,

363 F.3d 1155, 1158–59 (11th Cir. 2004).”). “ ‘The [Commissioner]'s failure to apply 

the correct law or to provide the reviewing court with sufficient reasoning for 

determining that the proper legal analysis has been conducted mandates reversal.’ ” 

Ingram, 496 F.3d at 1260 (quoting Cornelius v. Sullivan, 936 F.2d 1143, 1145-46 

(11th Cir. 1991)).

Eligibility for DIB and SSI requires that the claimant be disabled. 42 

U.S.C. §§ 423(a)(1)(E), 1382(a)(1)-(2). A claimant is disabled if she is 

unable “to engage in any substantial gainful activity by reason of a 

medically determinable physical or mental impairment ... 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), 1382c(a)(3)(A).

Thornton v. Comm'r, Soc. Sec. Admin., 597 F. App'x 604, 609 (11th Cir. Feb. 11, 

2015) (per curiam) (unpublished).4

The Social Security Regulations outline a five-step, sequential 

evaluation process used to determine whether a claimant is disabled: 

(1) whether the claimant is currently engaged in substantial gainful 

activity; (2) whether the claimant has a severe impairment or 

combination of impairments; (3) whether the impairment meets or 

equals the severity of the specified impairments in the Listing of 

Impairments; (4) based on a residual functional capacity (“RFC”) 

assessment, whether the claimant can perform any of his or her past 

relevant work despite the impairment; and (5) whether there are 

significant numbers of jobs in the national economy that the claimant 

can perform given the claimant's RFC, age, education, and work 

experience.

 4 In this Circuit, “[u]npublished opinions are not considered binding precedent, but they 

may be cited as persuasive authority.” 11th Cir. R. 36-2 (effective Dec. 1, 2014). See also

Henry v. Comm'r of Soc. Sec., 802 F.3d 1264, 1267 n.1 (11th Cir. 2015) (per curiam) (“Cases 

printed in the Federal Appendix are cited as persuasive authority.”).

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Winschel, 631 F.3d at 1178 (citing 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-

(v); Phillips, 357 F.3d at 1237-39).5

“These regulations place a very heavy burden on the claimant to demonstrate 

both a qualifying disability and an inability to perform past relevant work.” Moore, 

405 F.3d at 1211 (citing Spencer v. Heckler, 765 F.2d 1090, 1093 (11th Cir. 1985)). 

“In determining whether the claimant has satisfied this initial burden, the 

examiner must consider four factors: (1) objective medical facts or clinical findings; 

(2) the diagnoses of examining physicians; (3) evidence of pain; and (4) the 

claimant’s age, education, and work history.” Jones v. Bowen, 810 F.2d 1001, 1005 

(11th Cir. 1986) (per curiam) (citing Tieniber v. Heckler, 720 F.2d 1251, 1253 (11th 

Cir. 1983) (per curiam)). “These factors must be considered both singly and in 

combination. Presence or absence of a single factor is not, in itself, conclusive.” 

Bloodsworth, 703 F.2d at 1240 (citations omitted).

If, in Steps One through Four of the five-step evaluation, a claimant proves 

that he or she has a qualifying disability and cannot do his or her past relevant 

work, it then becomes the Commissioner’s burden, at Step Five, to prove that the 

claimant is capable—given his or her age, education, and work history—of engaging 

in another kind of substantial gainful employment that exists in the national 

economy. Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999); Sryock v. Heckler, 

764 F.2d 834, 836 (11th Cir. 1985). Finally, but importantly, although the 

“claimant bears the burden of demonstrating the inability to return to [his or] her 

 5 The Court will hereinafter use “Step One,” “Step Two,” etc. when referencing individual 

steps of this five-step sequential evaluation.

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past relevant work, the Commissioner of Social Security has an obligation to 

develop a full and fair record.” Shnorr v. Bowen, 816 F.2d 578, 581 (11th Cir. 1987). 

“This is an onerous task, as the ALJ must scrupulously and conscientiously probe 

into, inquire of, and explore for all relevant facts. In determining whether a 

claimant is disabled, the ALJ must consider the evidence as a whole.” Henry v. 

Comm'r of Soc. Sec., 802 F.3d 1264, 1267 (11th Cir. 2015) (per curiam) (citation and 

quotation omitted).

When, as here, “no new evidence is presented to the Appeals Council and it 

denies review, then the administrative law judge’s decision is necessarily reviewed 

as the final decision of the Commissioner...” Ingram, 496 F.3d at 1262.

III. Claim on Judicial Review

The ALJ “reversibly erred in failing to give significant weight to opinion of 

Plaintiff’s treating physician, Mark Pita, M.D., who offered an opinion on the 

severity of the claimant’s pain.” (Doc. 14 at 1).

IV. Analysis

At Step One, the ALJ determined that Wright was insured through June 30, 

2013, and had “not engaged in substantial gainful activity since September 25, 

2010, the alleged [disability] onset date...” (R. 21). At Step Two, the ALJ 

determined that Wright had the following severe impairments: hypothyroidism, 

migraine headaches, status post cerebrovascular accident, arteriovenous 

malformation, grade I carotid stenosis, bradycardia, hypertension, obesity, lower 

extremity edema, and generalized anxiety disorder. (R. 21). At Step Three, the 

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ALJ found that Wright did not have an impairment or combination of impairments 

that meets or equals the severity of one of the specified impairments in the relevant

Listing of Impairments. (R. 22). 

At Step Four,

the ALJ must assess: (1) the claimant's residual functional capacity 

(“RFC”); and (2) the claimant's ability to return to her past relevant 

work. 20 C.F.R. § 404.1520(a)(4)(iv). 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. 20 C.F.R. § 

404.1545(a). 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. 20 C.F.R. § 404.1520(e). 

Furthermore, the RFC determination is used both to determine 

whether the claimant: (1) can return to her past relevant work under 

the fourth step; and (2) can adjust to other work under the fifth 

step...20 C.F.R. § 404.1520(e).

If the claimant can return to her past relevant work, the ALJ will 

conclude that the claimant is not disabled. 20 C.F.R. § 

404.1520(a)(4)(iv) & (f). If the claimant cannot return to her past 

relevant work, the ALJ moves on to step five.

In determining whether [a claimant] can return to her past relevant 

work, the ALJ must determine the claimant's RFC using all relevant 

medical and other evidence in the case. 20 C.F.R. § 404.1520(e). That 

is, the ALJ must determine if the claimant is limited to a particular 

work level. See 20 C.F.R. § 404.1567. Once the ALJ assesses the 

claimant’s RFC and determines that the claimant cannot return to her 

prior relevant work, the ALJ moves on to the fifth, and final, step.

Phillips, 357 F.3d at 1238-39 (footnote omitted).

The ALJ determined that Wright had the RFC “to perform sedentary work as 

defined in 20 CFR 404.1567(a) and 20 CFR 416.967(a)[,]”6 with certain limitations 

 6 “To determine the physical exertion requirements of different types of employment in the 

national economy, the Commissioner classifies jobs as sedentary, light, medium, heavy, and 

very heavy. These terms are all defined in the regulations ... Each classification ...has its 

own set of criteria.” Phillips, 357 F.3d at 1239 n.4. “Sedentary work involves lifting no 

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(R. 23). Based on this RFC, the ALJ determined that Wright was “unable to 

perform any past relevant work...” (R. 27). At Step Five, the ALJ then determined 

that there exist significant numbers of jobs in the national economy that Wright

could perform given his RFC, age, education, and work experience – specifically, 

surveillance systems monitor, bench handler, and office helper. (R. 28 – 29). Thus, 

the ALJ found that Wright was not disabled under the Social Security Act. (R. 29).

Evidence considered by the Commissioner in making a disability 

determination may include medical opinions. See 20 C.F.R. §§ 404.1527(a)(2) & 

416.927(a)(2). “ ‘Medical opinions are statements from physicians and psychologists 

or other acceptable medical sources that reflect judgments about the nature and 

severity of [the claimant's] impairment(s), including [the claimant’s] symptoms, 

diagnosis and prognosis, what [the claimant] can still do despite impairment(s), and 

[the claimant's] physical or mental restrictions.’ ” Winschel, 631 F.3d at 1178-79 

(quoting 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2)). “There are three tiers of 

medical opinion sources: (1) treating physicians; (2) nontreating, examining 

physicians; and (3) nontreating, nonexamining physicians.” Himes v. Comm'r of 

Soc. Sec., 585 F. App'x 758, 762 (11th Cir. Sept. 26, 2014) (per curiam) 

(unpublished) (citing 20 C.F.R. §§ 404.1527(c)(1)-(2), 416.927(c)(1)-(2)). “In 

assessing medical opinions, the ALJ must consider a number of factors in 

determining how much weight to give to each medical opinion, including (1) 

 

more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, 

ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a 

certain amount of walking and standing is often necessary in carrying out job duties. Jobs 

are sedentary if walking and standing are required occasionally and other sedentary 

criteria are met.” 20 C.F.R. §§ 404.1567(a), 416.967(a).

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whether the physician has examined the claimant; (2) the length, nature, and 

extent of a treating physician's relationship with the claimant; (3) the medical 

evidence and explanation supporting the physician’s opinion; (4) how consistent the 

physician’s opinion is with the record as a whole; and (5) the physician’s 

specialization. These factors apply to both examining and non-examining 

physicians.” Eyre v. Comm'r, Soc. Sec. Admin., 586 F. App'x 521, 523 (11th Cir. 

Sept. 30, 2014) (per curiam) (unpublished) (internal citations and quotation marks 

omitted) (citing 20 C.F.R. §§ 404.1527(c) & (e), 416.927(c) & (e)). 

The ALJ “may reject the opinion of any physician when the evidence supports 

a contrary conclusion.” Bloodsworth, 703 F.2d at 1240. Accord, e.g., Anderson v. 

Comm'r of Soc. Sec., 427 F. App'x 761, 763 (11th Cir. 2011) (per curiam) 

(unpublished). However, 

the ALJ must state with particularity the weight given to different 

medical opinions and the reasons therefor. Sharfarz v. Bowen, 825 

F.2d 278, 279 (11th Cir. 1987) (per curiam). “In the absence of such a 

statement, it is impossible for a reviewing court to determine whether 

the ultimate decision on the merits of the claim is rational and 

supported by substantial evidence.” Cowart v. Schweiker, 662 F.2d 731, 

735 (11th Cir. 1981). Therefore, when the ALJ fails to “state with at 

least some measure of clarity the grounds for his decision,” we will 

decline to affirm “simply because some rationale might have supported 

the ALJ's conclusion.” Owens v. Heckler, 748 F.2d 1511, 1516 (11th 

Cir.1984) (per curiam). In such a situation, “to say that [the ALJ’s] 

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, 662 F.2d at 735 

(quoting Stawls v. Califano, 596 F.2d 1209, 1213 (4th Cir. 1979)) 

(internal quotation marks omitted).

Winschel, 631 F.3d at 1179.

“A ‘treating source’ (i.e., a treating physician) is a claimant's ‘own physician, 

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psychologist, or other acceptable medical source who provides[], or has provided[],[ 

the claimant] with medical treatment or evaluation and who has, or has had, an 

ongoing treatment relationship with [the claimant].’ ” Nyberg v. Comm'r of Soc. 

Sec., 179 F. App'x 589, 591 (11th Cir. May 2, 2006) (per curiam) (unpublished) 

(quoting 20 C.F.R. § 404.1502). “Absent ‘good cause,’ an ALJ is to give the medical 

opinions of treating physicians ‘substantial or considerable weight.’ ” Winschel, 631 

F.3d at 1179 (quoting Lewis, 125 F.3d at 1440). That is so because treating sources 

are likely in a better position “to provide a detailed, longitudinal picture of [a 

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), 416.927(c)(2). “Good cause 

exists ‘when the: (1) 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 own medical records.’ With good cause, 

an ALJ may disregard a treating physician's opinion, but he ‘must clearly articulate 

[the] reasons’ for doing so.” Winschel, 631 F.3d at 1179 (quoting Phillips, 357 F.3d 

at 1240-41) (internal citation omitted). See also, e.g., Bloodsworth, 703 F.2d at 1240 

(“[T]he opinion of a treating physician may be rejected when it is so brief and 

conclusory that it lacks persuasive weight or where it is unsubstantiated by any 

clinical or laboratory findings. Further, the Secretary may reject the opinion of any 

physician when the evidence supports a contrary conclusion.” (citation omitted)).

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Wright’s sole claim on judicial review is that the ALJ reversibly erred in 

assigning less than substantial weight to the opinion of treating physician Dr. Mark 

Pita, who is one of several medical professionals with the Mobile County Health 

Department that provided medical evidence in this case. The ALJ summarized Dr. 

Pita’s opinion as follows:

The claimant’s treating physician, Dr. Pita, provided a medical source 

statement in December 2011. Dr. Pita opined that physical activities, 

such as walking, standing, lifting, etc. would greatly increase the 

claimant’s symptoms and cause distraction from task or total 

abandonment of task. Dr. Pita further opined that the claimant cannot 

engage in any form of gainful employment on a repetitive, competitive 

and productive basis over an eight hour workday, forty hours a week, 

without missing more than two days of work per month or 

experiencing frequent interruptions to his work routine due to 

symptoms of his medical problems (Exh. B11F [R. 393]). 

(R. 26). 

The ALJ assigned “no substantial weight” to the opinion because it was 

“inconsistent with the examination notes and reports in Exhibits B10F [R. 339 –

392] and B16F [R. 455 – 473].” (R. 26). Wright asserts that this statement does not 

meet the requirement that the ALJ “state with particularity the weight given to 

[Dr. Pita’s] medical opinion[] and the reasons therefor.” Winschel, 631 F.3d at 

1179 (emphasis added). The Court agrees that, standing alone, this summary 

citation to two exhibits, collectively consisting of over seventy pages of medical 

records, is insufficient, as the Court is unable to determine what inconsistencies 

the ALJ relied on to justify assigning less than substantial weight to the opinion. 

See id. (“[W]hen the ALJ fails to state with at least some measure of clarity the 

grounds for his decision, we will decline to affirm simply because some rationale 

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might have supported the ALJ's conclusion.” (quotations omitted)); Perez v. Comm'r 

of Soc. Sec., No. 14-14671, 2015 WL 5042654, at *10 (11th Cir. Aug. 27, 2015) (per 

curiam) (unpublished) (“[T]he ALJ stated Dr. Hasbun’s opinion about Perez’s 

limitations contradicted Dr. Hasbun’s own contemporaneous treatment notes; 

however, this statement was conclusory, because the ALJ did not identify any 

contradictions.” (finding this reason, as stated, “insufficient” to reject treating 

physician’s opinion)); Kahle v. Comm'r of Soc. Sec., 845 F. Supp. 2d 1262, 1272 

(M.D. Fla. 2012) (“[C]onclusory statements by an ALJ to the effect that an opinion is 

inconsistent with or not bolstered by the medical record are insufficient to show an 

ALJ’s decision is supported by substantial evidence unless the ALJ articulates 

factual support for such a conclusion.”). 7

Accordingly, the Court SUSTAINS Wright’s lone claim of error and finds 

that the Commissioner’s final decision is due to be REVERSED and REMANDED. 

On remand, should the Commissioner again decide to assign less than substantial 

 7 The Commissioner’s brief provides a more in-depth discussion of Exhibits B10F and B16F, 

citing numerous sections of those records purporting to support the ALJ’s decision, and 

also cites other record evidence that is contrary to Dr. Pita’s opinion. However, the Court 

cannot affirm based on such post hoc reasoning. See Dempsey v. Comm'r of Soc. Sec., 454 F. 

App'x 729, 733 (11th Cir. Dec. 5, 2011) (per curiam) (unpublished) (“The Commissioner 

argues that Dr. Janush’s opinion was rendered two years after Dempsey's last insured date 

and there is no specific medical evidence that Dempsey had mental limitations during the 

period she was insured. However, the ALJ did not offer this explanation in his decision. We 

cannot affirm based on a post hoc rationale that ‘might have supported the ALJ’s 

conclusion.’ See Owens, 748 F.2d at 1516.”); Hubbard v. Colvin, No. 15-12920, 2016 WL 

624403, at *3 (11th Cir. Feb. 17, 2016) (per curiam) (unpublished) (“Despite identifying 

multiple ‘careless’ errors in the ALJ’s opinion, the district court relied on Hubbard’s work 

history, ‘along with his ability to perform basic personal tasks like driving, paying bills, and 

performing self-care functions,’ to affirm the ALJ’s decision ... [I]n relying on evidence of 

Hubbard’s ability ‘to perform basic personal tasks,’ the district court affirmed based on its 

own post hoc rationale. However, we decline to affirm using reasoning that ‘might have 

supported the ALJ's conclusion’ but was not offered by the ALJ himself. See Owens v. 

Heckler, 748 F.2d 1511, 1516 (11th Cir. 1984) (per curiam).”).

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or considerable weight to Dr. Pita’s opinions, she must clearly articulate good cause 

for doing so.8

V. Conclusion

In accordance with the foregoing analysis, it is ORDERED that the 

Commissioner’s final decision issued September 2, 2014, denying Wright’s 

applications for DIB and SSI benefits is REVERSED and REMANDED under 

sentence four of 42 U.S.C. § 405(g), see Melkonyan v. Sullivan, 501 U.S. 89 (1991), 

for further proceedings consistent with this decision. This remand under sentence 

four of § 405(g) makes Brownlow a prevailing party for purposes of the Equal Access 

 8

There is language in MacGregor v. Bowen, 786 F.2d 1050 (11th Cir. 1986), for 

the proposition that, if an ALJ fails clearly to articulate reasons for 

discounting the opinion of a treating physician, that evidence must be 

accepted as true as a matter of law. However, []earlier decisions had 

remanded cases to the agency when there was a failure to provide an 

adequate credibility determination. See, e.g., Owens[ v. Heckler], 748 F.2d 

[1511,] 1516[ (11th Cir. 1984)]; Wiggins v. Schweiker, 679 F.2d 1387, 1390 

(11th Cir. 1982). Pursuant to the prior precedent rule, [courts] are bound by 

the holding of the first panel to address an issue of law, unless and until it is 

overruled by [the Eleventh Circuit] sitting en banc or the Supreme Court. 

United States v. Steele, 147 F.3d 1316, 1318 (11th Cir. 1998) (en banc). 

Accordingly, rather than broadly accept the doctors’ opinions as true, [courts]

will remand to the agency so that it can make a determination in the first 

instance of the proper weight to be afforded to those opinions.”).

Lawton v. Comm'r of Soc. Sec., 431 F. App'x 830, 835 (11th Cir. June 22, 2011) (per curiam) 

(unpublished). Accord Dempsey, 454 F. App'x at 732 n.5 (same); Davis v. Comm'r of Soc. 

Sec., 449 F. App'x 828, 833 n.1 (11th Cir. Dec. 19, 2011) (per curiam) (unpublished) (same). 

But see Fleming v. Comm'r, Soc. Sec. Admin., 550 F. App'x 738, 740 (11th Cir. Dec. 17, 

2013) (per curiam) (unpublished) (noting MacGregor’s “accept as true” holding without 

comment and remanding “the case to the ALJ to give proper weight to all of the medical 

opinions presented at the administrative hearing”); Snyder v. Comm'r of Soc. Sec., 330 F. 

App'x 843, 849 (11th Cir. May 29, 2009) (per curiam) (unpublished) (“[O]n remand the ALJ 

must not only reconsider step four, but also complete the sequential evaluation in step five 

based on the current record. In making a residual functional capacity determination, the 

ALJ must accept as true []Dr. Oliverio's opinion ... See ... MacGregor, 786 F.2d at 1053.”); 

Newton v. Astrue, 297 F. App'x 880, 884 (11th Cir. Oct. 23, 2008) (per curiam) (unpublished) 

(similar).

Case 1:14-cv-00465-N Document 21 Filed 02/26/16 Page 14 of 15
15

to Justice Act, 28 U.S.C. § 2412, see Shalala v. Schaefer, 509 U.S. 292 (1993), and 

terminates this Court’s jurisdiction over this matter.

Under Federal Rule of Civil Procedure 54(d)(2)(B), the Court hereby grants 

Wright’s counsel an extension of time in which to file a petition for authorization of 

attorney’s fees under 42 U.S.C. § 406(b) until thirty days after receipt of a notice of 

award of benefits from the SSA. See Bergen v. Comm'r of Soc. Sec., 454 F.3d 1273, 

1277 (11th Cir. 2006) (per curiam) (“Fed. R. Civ. P. 54(d)(2) applies to a § 406(b) 

attorney's fee claim.”); Blitch v. Astrue, 261 F. App'x 241, 242 n.1 (11th Cir. 2008) 

(per curiam) (unpublished) (“In Bergen v. Comm'r of Soc. Sec., 454 F.3d 1273 (11th 

Cir. 2006), we suggested the best practice for avoiding confusion about the 

integration of Fed. R. Civ. P. 54(d)(2)(B) into the procedural framework of a fee 

award under 42 U.S.C. § 406 is for a plaintiff to request and the district court to 

include in the remand judgment a statement that attorneys fees may be applied for 

within a specified time after the determination of the plaintiff's past due benefits by 

the Commission. 454 F.3d at 1278 n.2.”).

Final judgment shall issue separately in accordance with this Order and 

Federal Rule of Civil Procedure 58.

DONE and ORDERED this the 26th day of February 2016.

/s/ Katherine P. Nelson

KATHERINE P. NELSON

UNITED STATES MAGISTRATE JUDGE

Case 1:14-cv-00465-N Document 21 Filed 02/26/16 Page 15 of 15