United States District Court, M.D. Florida, Jacksonville Division
MEMORANDUM OPINION AND ORDER
C. RICHARDSON, UNITED STATES MAGISTRATE JUDGE
CAUSE is before the Court on Plaintiff's appeal
of an administrative decision denying his application for a
period of disability and disability insurance benefits
(“DIB”). Following an administrative hearing held
on February 23, 2017, the assigned Administrative Law Judge
(“ALJ”) issued a decision, finding Plaintiff not
disabled from September 13, 2014, the alleged amended
disability onset date, through April 20, 2017, the date of
the decision. (Tr. 12-73.) Based on a review of the
record, the briefs, and the applicable law, the
Commissioner's decision is REVERSED and
Standard of Review
scope of this Court's review is limited to determining
whether the Commissioner applied the correct legal standards,
McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir.
1988), and whether the Commissioner's findings are
supported by substantial evidence, Richardson v.
Perales, 402 U.S. 389, 390 (1971). “Substantial
evidence is more than a scintilla and is such relevant
evidence as a reasonable person would accept as adequate to
support a conclusion.” Crawford v. Comm'r of
Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004). Where
the Commissioner's decision is supported by substantial
evidence, the district court will affirm, even if the
reviewer would have reached a contrary result as finder of
fact, and even if the reviewer finds that the evidence
preponderates against the Commissioner's decision.
Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th
Cir. 1991); Barnes v. Sullivan, 932 F.2d 1356, 1358
(11th Cir. 1991). The district court must view the evidence
as a whole, taking into account evidence favorable as well as
unfavorable to the decision. Foote v. Chater, 67
F.3d 1553, 1560 (11th Cir. 1995); accord Lowery v.
Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (stating
the court must scrutinize the entire record to determine the
reasonableness of the Commissioner's factual findings).
argues that the ALJ erred by discounting Plaintiff's need
for a cane, by substituting her opinion for Dr. Warren
Groff's opinion regarding the need for a cane, and by
improperly excluding the need for a cane from the
hypothetical question to the vocational expert
(“VE”). Plaintiff urges the Court to
“remand this case for an additional hearing to evaluate
the need for a cane and the vocational impact of the need for
a cane.” (Doc. 13 at 10.) Defendant responds that the
ALJ applied the correct legal standards and her decision is
supported by substantial evidence. The Court finds that the
ALJ's decision is not supported by substantial evidence
and, therefore, remands the case for further proceedings.
Standard for Evaluating Opinion Evidence and Subjective
is required to consider all the evidence in the record when
making a disability determination. See 20 C.F.R.
§ 404.1520(a)(3). With regard to medical opinion
evidence, “the ALJ must state with particularity the
weight given to different medical opinions and the reasons
therefor.” Winschel v. Comm'r of Soc.
Sec., 631 F.3d 1176, 1179 (11th Cir. 2011). Substantial
weight must be given to a treating physician's opinion
unless there is good cause to do otherwise. See Lewis v.
Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997).
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.” Phillips v. Barnhart,
357 F.3d 1232, 1240-41 (11th Cir. 2004). When a treating
physician's opinion does not warrant controlling weight,
the ALJ must nevertheless weigh the medical opinion based on:
(1) the length of the treatment relationship and the
frequency of examination, (2) the nature and extent of the
treatment relationship, (3) the medical evidence supporting
the opinion, (4) consistency of the medical opinion with the
record as a whole, (5) specialization in the medical issues
at issue, and (6) any other factors that tend to support or
contradict the opinion. 20 C.F.R. § 404.1527(c)(2)-(6).
a treating physician's opinion is generally entitled to
more weight than a consulting physician's opinion,
see Wilson v. Heckler, 734 F.2d 513, 518 (11th Cir.
1984) (per curiam), 20 C.F.R. § 404.1527(c)(2),
“[t]he opinions of state agency physicians” can
outweigh the contrary opinion of a treating physician if
“that opinion has been properly discounted, ”
Cooper v. Astrue, No. 8:06-cv-1863-T-27TGW, 2008 WL
649244, *3 (M.D. Fla. Mar. 10, 2008). Further, “the ALJ
may reject any medical opinion if the evidence supports a
contrary finding.” Wainwright v. Comm'r of Soc.
Sec. Admin., No. 06-15638, 2007 WL 708971, *2 (11th Cir.
Mar. 9, 2007) (per curiam). See also Sryock v.
Heckler, 764 F.2d 834, 835 (11th Cir. 1985) (per curiam)
ALJ is required to consider the opinions of non-examining
state agency medical and psychological consultants because
they ‘are highly qualified physicians and
psychologists, who are also experts in Social Security
disability evaluation.'” Milner v.
Barnhart, 275 Fed.Appx. 947, 948 (11th Cir. May 2, 2008)
(per curiam); see also SSR 96-6p (stating that the
ALJ must treat the findings of State agency medical
consultants as expert opinion evidence of non-examining
sources). While the ALJ is not bound by the findings of
non-examining physicians, the ALJ may not ignore these
opinions and must explain the weight given to them in his
decision. SSR 96-6p.
claimant seeks to establish disability through his own
testimony of pain or other subjective symptoms, the Eleventh
Circuit's three-part “pain standard” applies.
Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir.
1991) (per curiam). “If the ALJ decides not to credit
such testimony, he must articulate explicit and adequate
reasons for doing so.” Id.
The pain standard requires (1) evidence of an underlying
medical condition and either (2) objective medical evidence
that confirms the severity of the alleged pain arising from
that condition or (3) that the objectively determined medical
condition is of such a severity that it can be reasonably
expected to give rise to the alleged pain.
claimant establishes that his pain is disabling through
“objective medical evidence from an acceptable medical
source that shows a medical impairment that could reasonably
be expected to produce the pain or other symptoms, pursuant
to 20 C.F.R. § 404.1529(a), “all evidence about
the intensity, persistence, and functionally limiting effects
of pain or other symptoms must be considered in addition to
the medical signs and laboratory findings in deciding the
issue of disability, ” Foote, 67 F.3d at 1561.
See also SSR 16-3p (stating that after the ALJ finds
a medically determinable impairment exists, the ALJ must
analyze “the intensity, persistence, and limiting
effects of the individual's symptoms” to determine
“the extent to which an individual's symptoms limit
his or her ability to perform work-related
In considering the intensity, persistence, and limiting
effects of an individual's symptoms, [the ALJ must]
examine the entire case record, including the objective
medical evidence; an individual's statements about the
intensity, persistence, and limiting effects of symptoms;
statements and other information provided by medical sources
and other persons; and any other relevant evidence in the
individual's case record. . . .
In evaluating an individual's symptoms, it is not
sufficient for our adjudicators to make a single, conclusory
statement that “the individual's statements about
his or her symptoms have been considered” or that
“the statements about the individual's symptoms are
(or are not) supported or consistent.” It is also not
enough for our adjudicators simply to recite the factors
described in the regulations for evaluating
symptoms. The determination or decision must contain
specific reasons for the weight given to the individual's
symptoms, be consistent with and supported by the evidence,
and be clearly articulated so the individual and any
subsequent reviewer can assess how the adjudicator evaluated
the individual's symptoms. . . .
In evaluating an individual's symptoms, our adjudicators
will not assess an individual's overall character or
truthfulness in the manner typically used during an
adversarial court litigation. The focus of the evaluation of
an individual's symptoms should not be to determine
whether he or she is a truthful person. Rather, our
adjudicators will focus on whether the evidence establishes a
medically determinable impairment that could reasonably be
expected to produce the individual's symptoms and given
the adjudicator's evaluation of the individual's
symptoms, whether the intensity and persistence of the
symptoms limit the individual's ability to perform
individual's attempts to seek medical treatment for
symptoms and to follow treatment once it is prescribed”
will also be considered “when evaluating whether
symptom intensity and persistence affect the ability to
perform work-related activities.” Id.
“[I]f the frequency or extent of the treatment sought
by an individual is not comparable with the degree of the
individual's subjective complaints, or if the individual
fails to follow prescribed treatment that might improve
symptoms, [the adjudicator] may find the alleged intensity
and persistence of an individual's symptoms are
inconsistent with the overall evidence of record.”
Id. However, the adjudicator “will not find an
individual's symptoms inconsistent with the evidence in
the record on this basis without considering possible reasons
he or she may not comply with treatment or seek treatment
consistent with the degree of his or her complaints.”
Id. In considering an individual's treatment
history, the adjudicator may consider, inter alia,
one or more of the following:
• That the individual may have structured his or her
activities to minimize symptoms to a tolerable level by
avoiding physical activities or mental stressors that
aggravate his or her stressors;
• That the individual may receive periodic treatment or
evaluation for refills of medications because his or her
symptoms have reached a plateau;
• That the individual may not agree to take prescription
medications because the side effects are less tolerable than
• That the individual may not be able to afford
treatment and may not have access to free or low-cost medical
• That a medical source may have advised the individual
that there is no further effective treatment to prescribe or
recommend that would benefit the individual;
• That due to various limitations (such as language or
mental limitations), the individual may not understand the
appropriate treatment for or the need for consistent