United States District Court, M.D. Florida, Orlando Division
GREGORY L. DOLAN, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
E. MENDOZA, UNITED STATES DISTRICT JUDGE.
CAUSE is before the Court on Plaintiff's Complaint (Doc.
1), which seeks judicial review of a final decision of the
Commissioner of the Social Security Administration
(“Commissioner”) denying Plaintiff's
applications for disability insurance benefits and
supplemental security income. On October 23, 2017, United
States Magistrate Judge Gregory J. Kelly issued a Report and
Recommendation (“R&R, ” Doc. 16), in which he
recommends that the Commissioner's final decision be
reversed and remanded for further proceedings. The
Commissioner filed an Objection to the R&R (Doc. 17), to
which Plaintiff filed a Response (Doc. 18). After a de
novo review of the record, the Court will adopt and
confirm the R&R.
to 28 U.S.C. § 636(b)(1), when a party makes a timely
objection, the Court shall review de novo any
portions of a magistrate judge's report and
recommendation concerning specific proposed findings or
recommendations to which an objection is made. See
also Fed. R. Civ. P. 72(b)(3). De novo review
“require[s] independent consideration of factual issues
based on the record.” Jeffrey S. v. State Bd. of
Educ. of State of Ga., 896 F.2d 507, 513 (11th Cir.
1990) (per curiam). The district court “may accept,
reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28
U.S.C. § 636(b)(1).
instant appeal, Plaintiff contends that the Administrative
Law Judge (“ALJ”) committed reversible error by:
1) applying improper legal standards to a Mental Residual
Functional Capacity Assessment (“MRFC”) form
completed by Dr. Timothy L. Reid, Plaintiff's treating
physician (the “First Issue”); and 2) failing to
properly evaluate Plaintiff's use of a cane and failing
to include any consideration of Plaintiff's need for a
cane in the hypothetical questions posed to the vocational
expert (the “Second Issue”). (Joint Mem., Doc.
15, at 9-11, 16-18).
referral, Judge Kelly found no reversible error with respect
to the First Issue, (Doc. 16 at 3-4), but determined that the
ALJ committed reversible error with respect to the Second
Issue by misstating the evidence and then “improperly
rel[ying] on such misstatements to find [Plaintiff]'s
[testimony] regarding the effects of his physical impairments
not credible[, ]” (id. at 4-6). Therefore,
Judge Kelly recommends that the Court reverse and remand the
ALJ's decision. In the Objection, the Commissioner argues
that the Court should reject the R&R because Magistrate
Kelly incorrectly framed the Second Issue by reviewing the
ALJ's credibility finding rather than limiting his review
to the actual issue-Plaintiff's alleged use of a cane.
(Doc. 17 at 2-3). The Court is unpersuaded.
of how the Second Issue is framed, it is plainly obvious that
the ALJ failed to cite evidence supporting his conclusion
with regard to Plaintiff's use of a cane. In his
decision, the ALJ states that Plaintiff “repeatedly
noted he only occasionally uses his prescribed cane.”
(Tr. 37 (citing Ex. C4F at 49; Ex. C5F at 14; Ex. C8F at 29;
Ex. C11F at 22). Notably, however, none of exhibits cited by
the ALJ reflect that Plaintiff only uses his prescribed cane
occasionally. (See Tr. 443, 528, 595, 674). Instead,
the exhibits cited by the ALJ only note that Plaintiff
“slowly ambulates with cane” or that he
“[u]ses a cane to ambulate.” (Tr. 528, 595, 674).
the ALJ's failure to cite to evidence supporting his
finding, the Commissioner argues that the ALJ properly
considered Plaintiff's need for a cane and properly found
that Plaintiff's alleged cane use did not warrant
inclusion in the RFC. (Doc. 15 at 19-20). In making this
argument, however, the Commissioner points to evidence in the
record capable of supporting such a finding rather than the
reasons and evidence articulated by the ALJ. (See
id.). In evaluating whether the ALJ articulated a basis
for its decision, the Court may not rely upon the
Commissioner's post-hoc rationalizations. Instead, it
must look to the justification provided by the ALJ in the
record. See Baker v. Comm'r of Soc. Sec., 384
Fed. App'x. 893, 896 (11th Cir. 2010) (per curiam)
(“[A] court may not accept appellate counsel's
post hoc rationalizations for agency actions. If an
action is to be upheld, it must be upheld on the same bases
articulated in the agency's order.”) (citation
omitted). Here, the ALJ failed to cite evidence supporting
his finding that Plaintiff only uses his cane on occasion.
Accordingly, the Court cannot conclude that the ALJ properly
considered Plaintiff's use of a cane, or that his failure
to include Plaintiff's cane use in the RFC determination
is supported by substantial evidence. As such, the
appropriate remedy is to reverse and remand this action for
attempt to avoid remand, the Commissioner argues that even if
the ALJ erred by not considering Plaintiff's use of a
cane in the RFC any such error would be harmless because the
ALJ posed a hypothetical contemplating Plaintiff's need
to change positions (sit/stand) for two minutes every thirty
minutes, and the vocational expert testified that all the
jobs he identified could be performed while standing or
sitting. (Doc. 15 at 21; see also Tr. 78-79). The
Court is again, unpersuaded.
a “medically required hand-held assistive device”
may “significantly erode” the
“occupational base for [a claimant] who must use such a
device.” SSR 96-9p, 1996 WL 374185, at *7 (July 2,
1996). Thus, if a claimant has a genuine medical need for a
cane, such a limitation should be included in the
hypothetical questions the ALJ presents to the vocational
expert. See Wilson v. Barnhart, 284 F.3d 1219, 1227
(11th Cir. 2002) (explaining that “[i]n order for a
vocational expert's testimony to constitute substantial
evidence, the ALJ must pose a hypothetical question which
comprises all of the claimant's impairments”).
instant case, the ALJ did not ask the vocational expert how
Plaintiff's alleged need for the use of a cane would
impact or erode the available occupation base. The inclusion
of a sit/stand option in the ALJ's hypothetical to the
vocational expert did not sufficiently address this issue
because, as the regulations indicate, the need for a cane may
significantly erode the job base for light work
notwithstanding a sit/stand option. Therefore, the Court
cannot conclusively find that the ALJ's failure to
consider Plaintiff's need for a cane in the RFC
constitutes harmless error. Accordingly, the
Commissioner's final decision in this case is reversed
and remanded for further proceedings.
it is ORDERED and ADJUDGE ...