IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

NORTHERN DIVISION

ANDREW COOKE, )

Plaintiff, )

)

v. ) CIVIL ACTION NO. 14-00584-N

)

CAROLYN W. COLVIN, Acting )

Commissioner of Social Security, )

Defendant. )

MEMORANDUM OPINION AND ORDER

Social Security Claimant/Plaintiff Andrew Cooke has brought this action 

under 42 U.S.C. § 405(g) seeking judicial review of a final decision of the Defendant 

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

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

Security Act, 42 U.S.C. § 401, et seq. By the consent of the parties (see Doc. 25), 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. 28).

Upon consideration of the parties’ briefs (Docs. 14, 15, 21, 23) and the 

administrative record (Doc. 13) (hereinafter cited as “(R. [page number(s)])”),1 the 

Court finds that the Commissioner’s decision is due to be REVERSED and 

REMANDED.

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

(See Docs. 26, 27).

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I. Procedural Background

Cooke protectively filed an applications for DIB with the Social Security 

Administration (“SSA”) on August 18, 2011, alleging disability beginning December 

26, 2008.2 (R. 169 – 170). After his application was initially denied, Cooke

requested a hearing, which was held before an Administrative Law Judge (“ALJ”) 

for the SSA on December 10, 2012. (R. 35). On March 14, 2013, the ALJ issued an 

unfavorable decision on Cooke’s application, finding him “not disabled” under the 

Social Security Act. (See R. 33 – 50). Cooke requested review of the ALJ’s decision 

by the Appeals Council for the SSA’s Office of Disability Adjudication and Review

and submitted additional evidence in support of his application. The 

Commissioner’s decision on Cooke’s DIB application became final when the Appeals 

Council denied Cooke’s request for review on October 20, 2014. (R. 1 – 5). On 

December 17, 2014, Cooke filed this action under § 405(g) for judicial review of the 

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

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 

 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).” Sanders v. 

Astrue, Civil Action No. 11-0491-N, 2012 WL 4497733, at *3 (S.D. Ala. Sept. 28, 2012). “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). The ALJ determined that 

Cooke’s last-insured date was June 30, 2014. (R. 37).

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Commissioner of Social Security may allow.”); 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 

(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 

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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 

(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)).

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Eligibility for DIB ... requires that the claimant be disabled. 42 U.S.C. 

§[] 423(a)(1)(E) ... 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).3

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.

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).4

“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; 

 3 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.”).

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

steps of this five-step sequential evaluation.

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(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 

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 no new evidence is presented to the Appeals Council and it denies 

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review, then the administrative law judge's decision is necessarily reviewed as the 

final decision of the Commissioner, but when a claimant properly presents new 

evidence to the Appeals Council, a reviewing court must consider whether that new 

evidence renders the denial of benefits erroneous.” Ingram, 496 F.3d at 1262.

III. Claims on Judicial Review

1. “The ALJ erred in rejecting the opinion of the examining neuropsychologist, 

John R. Goff, Ph.D., without identifying any substantial evidence to support 

the rejection.”

2. “The ALJ erred in failing to find Mr. Cooke disabled under Social Security

Ruling 85-15.”

(Doc. 15 at 1).

IV. Analysis

A. Claim 1

Cooke alleges disability beginning December 26, 2008, which is the date he 

was admitted to a hospital due to suffering a “possible” seizure while engaged in his 

former job of driving a school bus. (R. 41). The ALJ found from the record evidence 

that Cooke showed “no more seizure activity” after that one reported episode. 

Cooke does not challenge this finding on appeal, nor does he challenge any of the 

ALJ’s findings regarding his physical impairments, only his mental impairments. 

After conducting an examination of Cooke on November 19, 2012, Dr. Goff 

diagnosed him with “adjustment disorder with depressed mood,” “moderate to 

severe reading disorder,” “disorder of written expression,” and “borderline 

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intellectual functioning.” (R. 429). Dr. Goff also commented that Cooke’s “cognitive 

deficits are problematic and represent interfering factors in regard to vocational 

activity” and that “[h]is depression at this point represents a severe impairment.” 

(R. 429). Additionally, Dr. Goff completed a Medical Source Opinion Form (Mental), 

dated November 21, 2012, opining that Cooke had “extreme” limitations in his 

ability to respond to customary work pressures and to maintain attention, 

concentration, or pace for periods of at least two hours in a routine work setting, 

and “marked” limitations in his ability to deal with change in a routine work 

setting.5 (R. 430). Dr. Goff’s opinion was that the same level of severity existed as 

early as 2009 and that the limitations he assigned lasted or could be expected to 

last for 12 months or longer. (R. 431). 

At Step One, the ALJ determined that Cooke had “not engaged in substantial 

gainful activity since December 26, 2008, the alleged onset date.” (R. 37). At Step 

Two, the ALJ determined that Cooke had the following severe impairments: mild 

coronary artery disease, and one possible seizure episode on December 26, 2008, 

without subsequent seizure activity. (R. 37). The ALJ noted at Step Two that Dr. 

Goff had suggested “mental impairments of adjustment disorder with some 

depressed mood; possible disorder of written expression; and possible borderline 

intellectual functioning.” (R. 38). However, the ALJ expressed skepticism of the 

severity of Dr. Goff’s assessment, concluding that, while Cooke “might suffer some 

mental impairment[,]” “per the totality of the evidence, his mental impairments 

 5 The form defined “marked” as: “There is serious limitation in this area. There is a 

substantial loss in the ability to effectively function.” It defined “extreme” as: “There is 

major limitation in this area. There is not useful ability to function in this area.” (R. 430).

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appear to be slight abnormalities that – if they exist at all – cause little, if any, 

limitation in [Cooke’s] ability to perform mental work activity” and “are therefore 

nonsevere.” (R. 38). At Step Three, the ALJ found that Cooke did not have an 

impairment or combination of impairments that meets or equals the severity of the 

specified impairments in the Listing of Impairments. (R. 40). 

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 Cooke had the RFC “to perform the full range of 

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medium work as defined in 20 CFR 404.1567(c).”6 (R. 40). In formulating this RFC, 

the ALJ found that Dr. Goff’s “assessment of limitations” in the Medical Source 

Opinion Form was “so contrary to the subjective, medical, and objective evidence of 

record that it does not merit weight.” (R. 47). “As to the remainder of the 

assessment, the [ALJ] reluctantly allowed for some slight abnormality with slight 

limitation in [Cooke’s] ability to perform mental work activity” but determined 

“[t]here is no more than nonsevere mental impairment.” (R. 48). The ALJ then 

determined that Cooke was able to perform past relevant work as a bus driver, fish 

machine feeder, and street cleaner, or, in the alternative, that there are other jobs 

that exist in significant numbers in the national economy that Cooke can also 

perform, thus determining that Cooke was not disabled. (R. 49 – 50).7 

 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. “Medium work” is defined as work that 

that “involves lifting no more than 50 pounds at a time with frequent lifting or carrying of 

objects weighing up to 25 pounds. If someone can do medium work, ... he or she can also do 

sedentary and light work.” 40 C.F.R. § 404.1567(c).

7 Cooke does not specify at which Step(s) he claims the ALJ erroneously rejected Dr. Goff’s 

opinions. However, because the ALJ found Cooke to suffer some severe impairments at 

Step Two, proceeded with the sequential inquiry, and considered Cooke’s mental 

impairments in the later steps, any error at Step Two is harmless. See Delia v. Comm'r of 

Soc. Sec., 433 F. App'x 885, 887 (11th Cir. July 14, 2011) (per curiam) (unpublished) 

(“Substantial evidence does not support the ALJ's finding, at step two, that Delia’s mental 

impairments were not severe because the medical evidence showed that these impairments 

did cause restrictions in daily living, social functioning, and maintaining concentration, 

persistence, or pace. However, the ALJ deemed several of Delia’s other medical 

impairments to be severe and therefore continued on in the sequential inquiry. The ALJ 

considered Delia's mental impairments at steps three, four, and five. Because the ALJ gave 

full consideration to the consequences of Delia's mental impairments on his ability to work 

at later stages of the analysis, the error at step two was harmless and is not cause for 

reversal. See Reeves v. Heckler, 734 F.2d 519, 524 (11th Cir. 1984) (rejecting a challenge to 

an ALJ's conclusion as harmless error when the ALJ had considered the relevant evidence 

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Cooke asserts that substantial evidence does not support the ALJ’s decision 

to give no weight to Dr. Goff’s opinions. “ ‘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) 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 nonexamining 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 

 

in making the disability determination).”); Hearn v. Comm'r, Soc. Sec. Admin., No. 14-

15261, 2015 WL 4591811, at *3 (11th Cir. July 31, 2015) (per curiam) (unpublished) (“Any 

error at step two was harmless because the ALJ found in Hearn's favor as to impairment, 

and the ALJ properly noted that he considered Hearn’s impairments in the later steps.” 

(citations omitted)).

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

“[T]he ALJ must state with particularity the weight given to different medical 

opinions and the reasons therefor.” Winschel, 631 F.3d at 1179 (citing Sharfarz v. 

Bowen, 825 F.2d 278, 279 (11th Cir. 1987) (per curiam)). However, 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).8

There is no denying that the ALJ expressed some suspicion of Dr. Goff’s 

opinion because he assessed Cooke “at the behest of [Cooke]’s representative...” (R. 

38. See also R. 46 (“Nonetheless, and somewhat incredulously, the claimant’s 

representative directed him to a third party consultative psychological evaluation[

by Dr. Goff].”)). Cooke selectively quotes in support a Ninth Circuit decision, 

Reddick v. Chater, for the proposition that “the mere fact that a medical report is 

provided at the request of counsel or, more broadly, the purpose for which an 

opinion is provided, is not a legitimate basis for evaluating the reliability of the 

report.” 157 F.3d 715, 726 (9th Cir. 1998). See also Lester v. Chater, 81 F.3d 821, 

 8 The ALJ did not consider Dr. Goff, who examined Cooke only once at the time of the 

hearing, to be a “treating” psychologist, and Cooke does not argue here that Dr. Goff should 

have been so considered. See McSwain v. Bowen, 814 F.2d 617, 619 (11th Cir. 1987) (per 

curiam) (“[Doctors’] opinions are not entitled to deference because as one-time examiners 

they were not treating physicians.”); 20 C.F.R. § 404.1502 (“Treating source means your 

own physician, psychologist, or other acceptable medical source who provides you, or has 

provided you, with medical treatment or evaluation and who has, or has had, an ongoing 

treatment relationship with you ... We will not consider an acceptable medical source to be 

your treating source if your relationship with the source is not based on your medical need 

for treatment or evaluation, but solely on your need to obtain a report in support of your 

claim for disability. In such a case, we will consider the acceptable medical source to be a 

nontreating source.”).

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832 (9th Cir. 1995) (“The purpose for which medical reports are obtained does not 

provide a legitimate basis for rejecting them. An examining doctor’s findings are 

entitled to no less weight when the examination is procured by the claimant than 

when it is obtained by the Commissioner ... The Secretary may not assume that 

doctors routinely lie in order to help their patients collect disability benefits.” 

(quotation marks omitted)); Moss v. Astrue, 555 F.3d 556, 560-61 (7th Cir. 2009)

(per curiam).

However, the very next sentence in Reddick states that “[e]vidence of the 

circumstances under which the report was obtained and its consistency with other 

records, reports, or findings could ... form a legitimate basis for evaluating the 

reliability of the report.” 157 F.3d at 726. Reddick thus held that, “in the absence 

of other evidence to undermine the credibility of a medical report, the 

purpose for which the report was obtained does not provide a legitimate basis for 

rejecting it.” Id. at 726 (emphasis added). Accord Coheley v. Colvin, No. 2:13-CV1810-VEH, 2014 WL 6748991, at *4 (N.D. Ala. Dec. 1, 2014); Tavarez v. Comm'r of 

Soc. Sec., No. 15-11860, at 12-13 (11th Cir. Jan. 7, 2016) (per curiam) (unpublished) 

(citing Reddick, 157 F.3d at 726)). See also Hinton v. Massanari, 13 F. App'x 819, 

824 (10th Cir. July 31, 2001) (unpublished) (“An ALJ may certainly question a 

doctor’s credibility when the opinion, as here, was solicited by counsel. See, e.g., 

Saelee v. Chater, 94 F.3d 520, 522–23 (9th Cir. 1996) (ALJ justified in finding 

treating physician’s ‘report untrustworthy because it was obtained solely for the 

purposes of the administrative hearing, varied from [physician]’s own treatment 

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notes, and was worded ambiguously in an apparent attempt to assist [plaintiff] in 

obtaining social security benefits’). The ALJ may not automatically reject the 

opinion for that reason alone, however.”); Gonzalez Perez v. Sec'y of Health & 

Human Servs., 812 F.2d 747, 749 (1st Cir. 1987) (per curiam) (“[T]he ALJ in this 

case discounted both reports for the additional reason that they had been obtained 

after the claim had been filed and on advice and referral of counsel. In our review of 

social security disability cases, it appears to be a quite common procedure to obtain 

further medical reports, after a claim is filed, in support of such a claim. Something 

more substantive than just the timing and impetus of medical reports obtained after 

a claim is filed must support an ALJ's decision to discredit them.”). This holding is 

consistent with Eleventh Circuit law. See Bloodsworth, 703 F.2d at 1240 (an ALJ 

“may reject the opinion of any physician when the evidence supports a contrary 

conclusion”); Hickel v. Comm'r of Soc. Sec., 539 F. App'x 980, 987 (11th Cir. Oct. 28, 

2013) (per curiam) (unpublished) (“[G]enerating evidence is the purpose of obtaining 

opinions from medical sources, whether paid for by the Commissioner or by the 

claimant ... The fact that Dr. Eastridge was a one-time consultative examiner 

retained by the claimant rather than the Commissioner is not, standing alone, a 

valid basis for rejecting his medical opinion.”).

The ALJ did not reject Dr. Goff’s assessment solely because it was obtained at 

the behest of Cooke’s representative. The ALJ clearly considered other 

circumstances under which the report was obtained, Reddick, 157 F.3d at 726,

noting that Dr. Goff’s examination occurred “shortly before the [administrative 

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]hearing”9 and that it was “not the result of a treating physician’s referral or the 

claimant’s pursuit of mental healthcare.” (R. 38). The ALJ was also clear to state 

his determination that “the medical and objective evidence of record strongly

contradicts Dr. Goff’s opinion” and that Dr. Goff’s “assessment of limitations ... is so 

contrary to the subjective, medical, and objective evidence of record that it does not 

merit weight.” (R. 38, 47). As he was required to do, the ALJ “state[d] with 

particularity the weight given to [Dr. Goff’s] medical opinions and the reasons 

therefor.” Winschel, 631 F.3d at 1179. The Court must now determine whether

substantial evidence supports those reasons. The answer is “no.”

The ALJ determined that “the medical and objective evidence of record 

strongly contradicts Dr. Goff’s opinion” and “contains little evidence of depression 

let alone indication that the claimant is ‘very depressed’ ...” (R. 38). However, Dr. 

Goff’s Medical Source Opinion Form (R. 430 – 431) was accompanied by five-page 

evaluation report detailing the objective evidence Dr. Goff considered in formulating 

his opinions. (R. 425 – 429). This report, which is itself medical evidence, stated 

that Dr. Goff had interviewed Cooke about his history and had considered a number 

of Cooke’s medical, school, and other records. The report also provided scores and 

results from a number of psychological tests that Dr. Goff administered (the 

Wechsler Adult Intelligence Scale, which produced an IQ score of 73 for Cooke; the 

Reitan-Indiana Aphasia Screening Test; informal clock drawing tasks; the Wide 

Range Achievement Test, fourth edition; and the Personality Assessment 

 9 Dr. Goff’s examination occurred November 19, 2012 (see R. 425), three weeks before 

Cooke’s administrative hearing on December 10, 2012.

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16

Inventory). The report set forth specific diagnoses of mental impairments: 

“adjustment disorder with depressed mood,” “moderate to severe reading disorder,” 

“disorder of written expression,” and “borderline intellectual functioning.” (R. 429) 

Finally, the report noted that Dr. Goff had administered Cooke the Victoria 

Symptom Validity Test, “a test for dissimulation of cognitive deficits,” which gave 

“no indications for malingering or dissimulation concerning the cognitive aspects of 

the examination.” (R. 427). 

Here, then, the ALJ was presented with a medical opinion regarding Cooke’s 

mental impairments, given by an examining mental health specialist,10 that was 

supported by specific diagnoses of mental disorders, psychological test results, 11

and an explanation of the evidence considered.12 Dr. Goff considered a number of 

medical records from Cooke’s case file and, as Cooke notes, regularly provides 

psychological evaluations in disability matters.13 14 The ALJ did not find that Dr. 

 10 See 20 C.F.R. § 404.1527(c)(1) & (5) (“Generally, we give more weight to the opinion of a 

source who has examined you than to the opinion of a source who has not examined you ... 

We generally give more weight to the opinion of a specialist about medical issues related to 

his or her area of specialty than to the opinion of a source who is not a specialist.”).

11 While the ALJ noted that Dr. Goff “did not provide the actual test materials” with his 

report (R. 47), there is no indication that this was a significant factor in rejecting Dr. Goff’s 

opinions, and the ALJ gave offered no reason to believe that Dr. Goff was misrepresenting 

the test results.

12 See 20 C.F.R. § 404.1527(c)(3) (“The more a medical source presents relevant evidence to 

support an opinion, particularly medical signs and laboratory findings, the more weight we 

will give that opinion. The better an explanation a source provides for an opinion, the more 

weight we will give that opinion.”).

13 See, e.g., Hubbard v. Colvin, No. 7:14-CV-1718-CLS, 2015 WL 1958874 (N.D. Ala. May 1, 

2015); Snow v. Colvin, 8 F. Supp. 3d 1345 (N.D. Ala. 2014); Smith v. Astrue, No. CA 09-

0244-C, 2009 WL 4058998 (S.D. Ala. Nov. 20, 2009); Yaw v. Shalala, No. 94-C-1116-W, 

1994 WL 846979, at *1 (N.D. Ala. Nov. 30, 1994).

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Goff’s assessment or opinion were inconsistent either internally or with each other.

The medical evidence of record noted by the ALJ as “strongly contradicting” 

Dr. Goff’s opinion regarding Cooke’s mental impairments consists of cursory

statements made by other physicians in the course of primarily assessing physical 

impairments, seemingly made in passing and based on little more than the 

physicians’ observations of Cooke’s demeanor at the time. Two of these physicians, 

a general practitioner and a cardiologist, cannot reasonably be considered mental 

health specialists.15 While neurologist Dr. Brian Hogan could conceivably possess 

some mental health specialization akin to Dr. Goff’s, Dr. Hogan’s examinations 

were primarily focused on assessing Cooke for signs of seizure.16 Moreover, as 

 14 See 20 C.F.R. § 404.1527(c)(6) (“When we consider how much weight to give to a medical 

opinion, we will also consider any factors you or others bring to our attention, or of which 

we are aware, which tend to support or contradict the opinion. For example, the amount of 

understanding of our disability programs and their evidentiary requirements that an 

acceptable medical source has, regardless of the source of that understanding, and the 

extent to which an acceptable medical source is familiar with the other information in your 

case record are relevant factors that we will consider in deciding the weight to give to a 

medical opinion.”).

15 The ALJ noted that Dr. Aksut Seydi, a cardiac specialist, “specifically reported no deficit 

in mental functioning” for Cooke at an August 29, 2011 follow-up examination. (R. 44). 

The ALJ also noted that, at an October 19, 2012 visit with his general care provider, Dr. 

Edgar Brown “due to his chronic conditions and acute sinus symptoms,” Cooke “was found 

to be fully oriented. Insight and judgment were normal. Mood and affect was 

appropriate.” (R. 46 (emphasis in original)).

16 A January 28, 2009 assessment of Cooke by Dr. Hogan, at which Cooke “presented with a 

complaint of seizure,” noted (“contrary to Dr. Goff’s report,” per the ALJ), that Cook had “ 

‘normal attention span and ability to concentrate, alert and oriented x3 with no impairment 

of recent or remote memory and able to name object and repeat phrases.’ ” Dr. Hogan also 

noted: “ ‘Neuropsychiatric ... patient’s mood and affect are described as – normal.’ ” 

Dr. Hogan assessed several physical impairments and “was silent as to any other 

impairment, including the results of laboratory screening.” (R. 42, 302 – 303 (emphasis 

added by ALJ)). Cooke revisited Dr. Hogan on April 28, 2009, with “psychiatric evaluation 

remain[ing] unremarkable...” (R. 43). A third visit with Dr. Hogan on October 28, 2009, 

produced an “unremarkable” examination, with Cooke reporting “no new medical issues 

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Cooke correctly notes in his reply brief, Dr. Hogan’s examinations were of short 

duration, each lasting only a few minutes, and there is no indication in his 

treatment notes that he performed any specialized testing of Cooke’s psychological

impairments, as Dr. Goff did. (R. 295 – 315).

Indeed, the ALJ appears to have been more swayed by Cooke’s failure to 

report medical symptoms to his health care providers, repeatedly citing to portions 

of the record where he believes Cooke should have mentioned them but did not.17

The ALJ also found significant that Cooke’s DIB application “did not allege ... 

depression, emotional distress, or learning disability[,] ... did not report a 

psychotropic medication[,]” and “[i]n fact ... specifically denied the existence of a 

mental impairment or medication.” (R. 41. See also R. 47 (Cooke “did not report 

any memory problems in his functional report” submitted September 28, 2011), 45 

(Cooke “did not report any new physical or mental limitations” in his January 20, 

2012 of the initial denial of his DIB application)). While Cooke “may have failed to 

seek psychiatric treatment for his mental condition, []it is a questionable practice to 

chastise one with a mental impairment for the exercise of poor judgment in seeking 

 

since his last visit.” (R. 43).

17 (See R. 42 – 43 (noting that Cooke “did not complain of any deficit in mental functioning” 

at a March 25, 2009 Department of Transportation physical with a certified nurse 

practitioner at his primary healthcare provider); 47 (“The claimant never reported 

depression to any of his treating physicians ... When seen one month prior to this exam at 

Uniontown Health Center he did not report any symptoms of depression ...); 48 (noting that 

Cooke visited his general healthcare provide Dr. Brown “shortly after [Dr. Goff’s] 

evaluation” complaining of “back pain and chronic conditions[,]” but with “no subjective 

reports of deficit in mentation” at this examination; noting that Dr. Brown had “treated 

[Cooke] for well over a decade” and that his “treatment records, including the visits one 

month before and one after Dr. Goff evaluated [Cooke], simply do not suggest limitation 

remotely consistent with Dr. Goff’s opinion.”)).

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19

rehabilitation. The [ALJ] found [Cooke’]s complaints less than credible given a 

perceived paucity of medical proof. However, this should not be a determinative 

factor in a credibility assessment.” Blankenship v. Bowen, 874 F.2d 1116, 1124 (6th 

Cir. 1989) (per curiam). See also Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 

1996) (“[I]t is common knowledge that depression is one of the most underreported 

illnesses in the country because those afflicted often do not recognize that their 

condition reflects a potentially serious mental illness ... Thus, the fact that claimant 

may be one of millions of people who did not seek treatment for a mental disorder 

until late in the day is not a substantial basis on which to conclude that Dr. Brown’s 

assessment of claimant's condition is inaccurate.”); Beasich v. Comm'r of Soc. Sec., 

66 F. App'x 419, 429 (3d Cir. 2003) (unpublished) (“It is true that there was a lack of 

medical treatment for mental impairment during this period. However, several 

courts have questioned the relevance of infrequent medical visits in determining 

when or whether a claimant is disabled.” (citing Blankenship and Nguyen)).18

Though disability claimants frequently accuse ALJs of “succumb[ing] to the 

temptation to play doctor and make their own independent medical findings” 

 18 Indeed, “[r]etrospective diagnosis of a mental impairments like depression and post 

traumatic stress disorder, even if uncorroborated by contemporaneous medical records, but 

corroborated by lay evidence relating back to the claimed period of disability, can support a 

finding of past impairment.” Beasich, 66 F. App'x at 429. As the ALJ noted, in his 

testimony before the ALJ, Cooke “attempted to promote Dr. Goff’s findings with samplings 

from his past that he believed supported finding that his mental deficits severely limited or 

precluded his ability for mental work activity...” (R. 48). The ALJ “was not persuaded by 

his testimony” but cited primarily to evidence predating Cooke’s alleged disability onset 

date in making this determination. (R. 48).

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20

whenever they reject medical opinions favoring claimants’ assertions of disability, 19

Rohan v. Chater, 98 F.3d 966, 970 (7th Cir. 1996), this case presents a rare instance 

in which the undersigned concurs, further undercutting the ALJ’s determination. 

As noted above, Dr. Goff’s report accompanying his opinion expressly ruled out 

malingering and dissembling by Cooke, citing the results of objective testing in 

support. Without even acknowledging Dr. Goff’s determination that Cooke was not 

malingering, much less articulating reasons to discredit it, the ALJ, making his own 

use of the Diagnostic and Statistical Manual of Mental Disorders (4th Ed.), a 

medical text, independently determined that malingering “should be strongly 

suspected” as to Cooke’s “performance before Dr. Goff and Dr. Goff’s 

conclusions...”20 (R. 46). “Although Social Security disability benefits must be 

reserved only for those who qualify to receive them, an ALJ may not arrogate the 

power to act as both judge and physician[;]” “[a]n ALJ sitting as a hearing officer 

abuses his discretion when he substitutes his own uninformed medical evaluations 

for those of” medical professionals. Marbury v. Sullivan, 957 F.2d 837, 840-41 (11th 

Cir. 1992) (Johnson, J., concurring). See also Freeman v. Schweiker, 681 F.2d 727, 

 19 See, e.g., Snow v. Colvin, 8 F. Supp. 3d 1345, 1353 (N.D. Ala. 2014) (Kallon, J.) (“[W]ere 

courts to find that ALJs impermissibly substitute their own opinions for those of medical 

experts any time ALJs reject the opinions of those medical experts, the ALJ’s role in Social 

Security proceedings would be essentially meaningless.”).

20 Specifically, the ALJ stated: “The guidance Dr. Goff used in assessing the claimant, 

warns the reader that assessments procured in this fashion are or [sic] questionable value 

and in fact suggest malingering (American Psychiatric Association: Diagnostic and 

Statistical Manual of Mental Disorders, Fourth Edition, Text Revision. Washington, DC, 

American Psychiatric Association (DSM-IV-TR), pg 739, Section V65.2) ... ‘Malingering 

should be strongly suspected if any combination of the following is noted ... medicolegal 

context of presentation (e.g., the person is referred by an attorney to the clinician for 

examination) ... marked discrepancy between the person’s claimed stress or disability and 

the objective findings ...’ (DSM-IV-TR, pg. 739).” (R. 38, 46).

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731 (11th Cir. 1982) (per curiam) (finding that “the ALJ improperly substituted his 

judgment of the claimant’s condition for that of the medical and vocational 

experts”); Hillsman v. Bowen, 804 F.2d 1179, 1182 (11th Cir. 1986) (per curiam) 

(“Here, ... the ALJ has rejected the opinions of the treating physician not even on 

the basis of a differing opinion expressed by another doctor, but rather because ALJ 

himself reached a different conclusion after viewing the medical records. Such 

circumstantial evidence cannot alone support a finding of a nonsevere disability in 

the face of an opposing conclusion by the treating physician.”); Morales v. Apfel, 225 

F.3d 310, 317 (3d Cir. 2000) (“In choosing to reject the treating physician's 

assessment, an ALJ may not make speculative inferences from medical reports and 

may reject a treating physician’s opinion outright only on the basis of contradictory 

medical evidence and not due to his or her own credibility judgments, speculation or 

lay opinion.” (quotation marks omitted)).

The ALJ also discounted Dr. Goff’s opinions based on his conclusion that they 

were not consistent with Cooke’s ability to engage in certain activities. For 

instance, the ALJ determined that Cooke’s “maintain[ing] a commercial driver’s 

license,” his having “recently renewed that license,” and his past work as a school 

bus driver, furniture assembler, and collection and repossession agent were “not 

consistent with borderline intellectual functioning, or a reading disorder.” (R. 38, 

47 (“He also did collections and repossession of furniture again which would require 

the ability to read and write reports.”)). The ALJ further determined that Cooke’s 

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22

self-reported daily activities,21 and his continuing to drive a school bus for a short 

time after his alleged disability onset date, were “not consistent” with Cooke’s 

allegations of impairment, particularly Cooke’s “driving and caring for an autistic 

son.” (R. 45).22

The Seventh Circuit Court of Appeals addressed a strikingly similar situation 

where, “[w]ithout expressly relying on any medical evidence or authority, the ALJ 

determined that [the claimant]’s efforts at engaging in a small machine 

repair/resale business were incompatible with a diagnosis of major depression and 

[the treating psychiatrist’s] conclusions regarding [the claimant]’s functional 

abilities.” Rohan, 98 F.3d at 970. The Seventh Circuit held that the ALJ had erred 

in doing so, stating:

This is precisely the same scenario we confronted in Wilder[ v. Chater, 

64 F.3d 335 (7th Cir. 1995)], where the ALJ believed that the 

claimant’s ability to do certain things (e.g. work as a security guard 

and carry a gun) was inconsistent with a diagnosis of depression. This 

is not a permissible ground upon which the ALJ may rely. As a panel 

of this Court explained in Wilder:

Severe depression is not the blues. It is a mental illness; and 

health professionals, in particular psychiatrists, not lawyers or 

 21 “With daily activities, he gets up and gets cleaned up, fixes breakfast, picks wife up from 

work, watches television, takes wife to work at 2:00 p.m., checks on mother, goes home, eats 

dinner, watches television, takes medicine and goes to bed. He takes care of his autistic 

son, and prepares his meals. He also cares for pets ... With house and yard work, he does a 

little laundry and vacuum about ten minutes twice a week ... He gets outside daily. He 

walks, drives a car, or rides in a car. He can go out alone and he drives. He shops in stores. 

He can pay bills, count change and handle a savings account.” (R. 45).

22 The ALJ also appears to have placed much emphasis on evidence relating to periods 

before Cooke’s alleged disability onset date in December 2008. For instance, the ALJ cited 

a certificate in household appliance repair Cooke earned in 1981 which “states that the 

claimant is duly qualified for employment in positions under the DOT...” (R. 47 

(emphasis by ALJ)). The ALJ also considered Cooke’s ability to engage in prior work that 

predated his alleged disability onset date.

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judges, are the experts on it. [Wilder] is entitled to a decision 

based on the record rather than a hunch. The salient fact of 

record is the testimony of the psychiatrist, a disinterested as 

well as expert witness. Everything else is rank conjecture.

64 F.3d at 337–338. As far as discernible from this record, the ALJ 

simply indulged his own lay view of depression for that of [the treating 

psychiatrist].

Id. at 970-71. Accord Blakes ex rel. Wolfe v. Barnhart, 331 F.3d 565, 570 (7th Cir. 

2003) (“[T]he ALJ seems to have succumbed to the temptation to play doctor when 

she concluded that a good prognosis for speech and language difficulties was 

inconsistent with a diagnosis of mental retardation because no expert offered 

evidence to that effect here. See Rohan v. Chater, 98 F.3d 966, 970–71 (7th Cir. 

1996) (ALJ’s may not make independent medical findings regarding 

whether certain activities are inconsistent with a particular medical 

diagnosis). Under the circumstances, the ALJ should have summoned an expert to 

provide an informed basis for determining whether Lamanuel is disabled.” 

(emphasis added)). The Seventh Circuit’s admonitions in Rohan and Wilder apply

equally to the ALJ’s decision here. 

In sum, “there is no medical testimony to rebut Dr. [Goff]’s opinion, nor is 

there overwhelmingly compelling non-medical evidence to the contrary ... in the 

absence of competing medical opinions.” Rivera v. Sullivan, 923 F.2d 964, 969 (2d 

Cir. 1991). Even factoring in the “circumstances under which the report was 

obtained[,]” Reddick,157 F.3d at 726 – namely, the mere fact that it was obtained 

three weeks prior to Cooke’s hearing before the ALJ and was not the result of a 

physician referral – the ALJ’s decision to reject Dr. Goff’s opinions is not supported 

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by substantial evidence. While the ALJ was entitled to cast some suspicion on such 

an eleventh-hour diagnosis, the ALJ was not entitled to disregard it absent 

substantial contrary evidence. To the extent the ALJ believed Dr. Goff’s assessment 

was inconsistent with Cooke’s overall history, he had other tools at his disposal to 

resolve the inconsistency, including ordering a consultative examination. See 20 

C.F.R. § 404.1520b(c); Holladay v. Bowen, 848 F.2d 1206, 1209 (11th Cir. 1988) 

(“[B]ecause of the Secretary's duty to develop the medical record fully and fairly, 

this court has held that it is reversible error for an ALJ not to order a consultative 

examination when such an evaluation is necessary for him to make an 

informed decision.” (quotation omitted) (emphasis added)).

Accordingly, the Court SUSTAINS Cooke’s assertion of error in Claim 1.

B. Claim 2

Though styled as a separate claim of error, Claim 2 is merely an extension of 

Claim 1, being based on the premise that, because the ALJ improperly rejected Dr. 

Goff’s opinion, “that opinion must be accepted as true.” (Doc. 15 at 7). Cooke 

appears to invite the Court to itself apply Social Security Ruling 85-15 and, after 

considering Dr. Goff’s opinions in conjunction with other evidence in the 

administrative record, remand with instructions that Cooke be found disabled.

Cooke cites no authority for his proposition that Dr. Goff’s opinions must be 

accepted as true. As the Commissioner correctly notes (see Doc. 21 at 10 n.2), at 

most, there is authority in this Circuit indicating that when the Commissioner “has 

ignored or failed properly to refute a treating physician’s testimony, ... he has 

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accepted it as true.” MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986)

(emphasis added). As noted previously, Dr. Goff is not a treating medical source. 

Regardless, MacGregor’s holding conflicts with earlier Circuit precedent that 

remand is the appropriate action where an ALJ’s credibility determination was 

found to be inadequate, and this Court is bound to follow the earlier precedent. See

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

curiam) (unpublished) (“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, our 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, we are bound by the holding of the first panel to address an issue of 

law, unless and until it is overruled by this Court 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, we 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.”); Davis v. Comm'r of Soc. Sec., 

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

(similar). Cf. Carnes v. Sullivan, 936 F.2d 1215, 1219 (11th Cir. 1991) (“The 

credibility of witnesses is for the Secretary to determine, not the courts...”). Thus, 

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the Court OVERRULES Claim 2.

V. Conclusion

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

Commissioner’s final decision issued October 20, 2014, denying Cooke’s application

for DIB 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 Cooke a prevailing party for purposes of the Equal Access 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 

Cooke’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 Social Security Administration. 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 

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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 8th day of January 2016.

/s/ Katherine P. Nelson

KATHERINE P. NELSON

UNITED STATES MAGISTRATE JUDGE

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