Ward v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

SUE ANN WARD,

Plaintiff,

v. CASE NO. 6:21-cv-512-MCR

ACTING COMMISSIONER OF

THE SOCIAL SECURITY

ADMINISTRATION,

Defendant.

/

MEMORANDUM OPINION AND ORDER1

THIS CAUSE is before the Court on Plaintiff’s appeal of a partially

unfavorable decision denying her application for a period of disability,

disability insurance benefits (“DIB”), and supplemental security income

(“SSI”). Following an administrative hearing held on February 24, 2020, the

assigned Administrative Law Judge (“ALJ”) issued a decision, finding

Plaintiff not disabled from May 31, 2015, the alleged disability onset date,

through September 24, 2019.2 (Tr. 14.) Based on a review of the record, the

briefs, and the applicable law, the Commissioner’s decision is REVERSED

and REMANDED.

1 The parties consented to the exercise of jurisdiction by a United States

Magistrate Judge. (Doc. 18.)

2 Plaintiff had to establish disability on or before September 30, 2018, her

date last insured, in order to be entitled to a period of disability and DIB. (Tr. 14.)

I. Standard of Review

The 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).

II. Discussion

A. Issues on Appeal

Plaintiff raises two issues on appeal. First, Plaintiff argues that the

ALJ’s residual functional capacity (“RFC’) determination is unsupported by

substantial evidence because the ALJ failed to reconcile the opinion of Dr.

McCarthy with the RFC determination, despite affording it significant

weight. (Doc. 25 at 8.) Had Dr. McCarthy’s opinion been adopted, Plaintiff

argues, she would have been limited to sedentary work and found disabled

five years earlier. (Id. at 9.) Second, Plaintiff argues that the ALJ failed to

explain why Ms. Ward’s subjective statements were apparently contradicted

by the medical evidence. (Id. at 16.) Plaintiff asserts:

[E]xcept for the generalized language that the medical evidence

did not preclude an ability to perform competitive work, no

explanation was provided as to how the ALJ reached this

conclusion. Therefore, the analysis of Ms. Ward’s subjective

complaints is nothing more than a conclusory statement.

(Id.)

As to the first issue, Defendant counters by stating, “the ALJ fully

considered Dr. McCarthy’s opinion, including the limitation Plaintiff now

cites, and properly found it supported his RFC assessment (Tr. 17-18.)” (Doc.

26 at 14.) Defendant continues by asserting “because Dr. McCarthy was a

one-time examiner and not a treating doctor, his opinion was not entitled to

any deference or special consideration,” and that “[a]lthough the ALJ gave

significant weight to Dr. McCarthy’s opinion (Tr. 17-18), the ALJ had the

responsibility of assessing Plaintiff’s RFC based on all the relevant evidence

and was not required to adopt Dr. McCarthy’s opinion verbatim. (Id.)

As to the second issue, Defendant argues that the ALJ thoroughly

recapped Plaintiff’s allegations and that “Plaintiff’s argument ignores the

ALJ’s discussion and actual findings, which compared Plaintiff’s allegations

to Plaintiff’s medical records and opinion evidence (Tr. 16-19.)” (Id. at 12.)

B. Standard for Evaluating Opinion Evidence

The ALJ is required to consider all the evidence in the record when

making a disability determination. See 20 C.F.R. §§ 404.1520(a)(3),

416.920(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). However, “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) (same).

“The ALJ is required to consider the opinions of non-examining [S]tate

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 F. App’x 947, 948

(11th Cir. 2008) (per curiam); see also SSR 96-6p3 (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.

C. Standard for Evaluating Subjective Pain Testimony

When a claimant seeks to establish disability through her 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.

Id.

Once a claimant establishes that his pain is disabling through objective

medical evidence from an acceptable medical source that shows a medical

3 SSR 96-6p has been rescinded and replaced by SSR 17-2p effective March

27, 2017. However, because Plaintiff’s applications predated March 27, 2017, SSR

96-6p was still in effect on the date of the ALJ’s decision.

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 16-3p4 (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 activities”).

As stated in SSR 16-3p:

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

4 SSR 16-3p rescinded and superseded SSR 96-7p, eliminating the use of the

term “credibility,” and clarifying that “subjective symptom evaluation is not an

examination of an individual’s character.” SSR 16-3p.

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.5 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 work-related activities[.]

SSR 16-3p.

5 These factors include: (1) a claimant’s daily activities; (2) the location,

duration, frequency, and intensity of the claimant’s pain or other symptoms; (3) any

precipitating and aggravating factors; (4) the type, dosage, effectiveness, and side

effects of any medication taken to alleviate the claimant’s pain or other symptoms;

(5) any treatment, other than medication, received by the claimant to relieve the

pain or other symptoms; (6) any measures (other than treatment) used to relieve the

pain or other symptoms (e.g., lying flat on his or her back, standing for 15 to 20

minutes every hour, or sleeping on a board); and (7) any other factors concerning

the claimant’s functional limitations and restrictions due to pain or other

symptoms. 20 C.F.R. § 404.1529(c)(3); SSR 16-3p.

“[A]n 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 symptoms;

• 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

the symptoms;

• That the individual may not be able to afford treatment

and may not have access to free or low-cost medical

services;

• 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

treatment.

Id.

D. Relevant Evidence of Record

i. Gregory E. McCarthy, M.D.

On November 18, 2016, Plaintiff presented to Dr. McCarthy for a

consultative examination. (Tr. 532.) Dr. McCarthy’s opinions were, in

relevant part, as follows:

IMPRESSIONS: Claimant is a 52-year-old female who appeared

cooperative and appeared to give her best effort during the

evaluation. Given today’s evaluation, it appears the claimant

would be capable of walking short distances on even terrain.

Given today’s evaluation, claimant would likely be capable of

sitting, standing, walking if done on an occasional basis in an 8-

hour day. Claimant would also be capable of lifting and carrying

10-20 pounds on an occasional basis. Claimant would not have

difficulties with bending, stooping, crouching, kneeling, and

squatting. Claimant would be capable of reaching, handling, and

grasping. There were no visual or communicative limitations.

DIAGNOSIS AND PROGNOSIS: Claimant has elevated blood

pressure, not controlled, history of asthma and COPD, not

controlled, cataract [in the left eye], history of pneumonia,

irregular heartbeat, and chronic pain in the left shoulder and left

leg. Given today’s evaluation, it appears claimant may be

experiencing some alcohol withdrawal as blood pressure is very

elevated and she has difficulty with her tandem gait procedure

and appears she has tremors in the hands and arms that would

be consistent with [alcohol withdrawal] as there is a smell of old

alcohol on her breath.

(Tr. 533.)

ii. James R. Shoemaker, D.O. and Physician Assistant

Monique Medina

On May 17, 2019, Plaintiff presented to Dr. Shoemaker for a physical

examination. (Tr. 550.) Dr. Shoemaker’s findings were as follows:

Lower extremities reveal full [range of motion] of the hips, knees,

ankles, and feet, except those abnormalities[,] if noted[,] on range

of motion sheet. No evidence of pretibial or ankle edema, or

ulcerations. Moderate pain with passive range of motion of

bilateral hips, left greater than right, with internal and external

rotation flexion. There are varicose veins present to left lower

extremity without signs of inflammation. Strength is 5/5

bilaterally. Sensation is intact bilaterally. Patient’s gait is

minimally antalgic due to current lower extremity muscle

cramps. Patient loses balance with tandem walk.

(Tr.552.)

Plaintiff’s lumbosacral spine x-rays revealed diffuse moderate

degenerative disc disease with retrolisthesis of L4 and L5. (Tr. 553.)

Plaintiff’s bilateral hips and pelvis x-rays revealed mild osteoarthritis and

decreased bone density to femoral neck in the right hip, and decreased bone

density to femoral neck in the left hip, with no acute abnormalities in the

pelvis. (Id.) Physician Assistant (“PA”) Medina noted that all of Plaintiff’s

range of motion measurements were normal. (Tr. 554-556.) Concerning

Plaintiff’s postural activities, P.A. Medina indicated that Plaintiff could climb

stairs and ramps, balance, stoop, kneel, crouch, and crawl frequently, and

climb ladders and scaffolds occasionally. (Tr. 560.)

iii. Hearing Testimony

Plaintiff had three separate hearings before the ALJ: April 29, 2019,

September 23, 20196, and a final hearing on February 24, 2020. (Tr. 30-73.)

Plaintiff’s April 29, 2019 hearing testimony was, in relevant part, as follows:

Q. [Alright], so let’s talk about what’s been keeping you from

working. So, you mentioned that because of your medical

conditions, you would have to leave early. Can you explain what

you mean?

A. I have asthma and I have high blood pressure[.] [There’s]

pain in my legs to where I can’t stand [any] longer.

Q. What’s causing the pain in your leg?

A. To be honest, I’m not for certain. I have not had that

evaluated. Personally, I think its circulation. The pain is a

consistent pain. Just the tingling running up and down my legs,

which it’s doing right now and my feet are falling asleep.

. . .

Q. Why is that ma’am? You haven’t seen a doctor in the last

four years?

A. No, I have not been working. I do not have the monies to

get a doctor or insurance. I just recently had the paperwork for

Good Samaritan, which [is also] going to require me to have some

money. I don’t have it.

. . .

Q. Okay. So, what are your problems other than asthma, high

blood pressure[,] and pain in your legs[?] Anything else?

A. I have a cataract in my left eye. A lot of it is just the

constant pain that I have going on. I have asked to have it looked

6 The September 23, 2019 hearing is not discussed in detail as it was brief

and rescheduled due to the State Agency expert’s inability to access certain

electronic evidence. (Tr. 49.)

at and they have not.

Q. Constant pain in your leg?

A. My legs, my hands.

Q. What is your pain level on a 10-point scale on a typical day?

A. About a 9.

Q. Severe pain every day?

A. Yes.

Q. And you’ve never had that treated by a doctor?

A. I have asked[.] I have stated to them several times that I

have severe pain in my legs. I do not know what was causing it.

. . .

Q. Do you have any difficulty with sitting?

A. For long periods of time I cannot sit.

. . .

Q. How many minutes would you say during the day you

[elevate your legs]? Minutes or hours?

A. No, not hours. Minutes, maybe 30, because I can’t sit [any]

longer.

Q. Do you have any difficulty lifting things?

A. A gallon of milk is heavy.

(Tr. 61-65.)

On February 24, 2020, the Plaintiff appeared before the ALJ for a third

and final hearing. Plaintiff’s testimony, in relevant part, was as follows:

Q. Ms. Ward, is there anything you want to say?

A. Yeah, excuse me. As far as lifting and standing and

walking that they proclaim[,] [n]one of that happens. Ten pounds

is about the most I can lift. Stair climbing, there better be

something to hold onto and it’s one step at a time. Standing,

right now, my legs are killing me and I’m pretty much leaning

across the counter. The pain is still there regardless of when I

quit drinking, it’s still there. It’s not going away. It’s actually

gotten worse.

(Tr. 42.)

State agency expert, Dr. Golub also appeared at the February 24, 2020

hearing. Dr. Golub testified in relevant part as follows:

Q. Based on your review, what are the diagnoses here?

A. Well, the claimant has a history of alcohol and tobacco

excess. In addition, a history of asthma, which is described as

mild and intermittent, hypertension, which is poorly controlled,

and low back pain. The low back pain I noticed throughout the

record; however, the only imaging I saw was an x-ray and it was

not especially revealing. In addition, in 6-F, a consultative exam

was done November 16, where the claimant had complaints of

pain in multiple joint sites. However, the physical exam was

entirely within normal limits. And, the x-ray of the lumbar spine

did show some degenerative disc disease and the hips, the same

report.

. . .

Q. What are the work-related limitations?

A. She can lift and carry ten pounds frequently and 20 pounds

occasionally. In an eight-hour day, I think she could sit for seven

hours and stand and walk for six. I did not see anything to

require limitations with the use of the upper extremities.

Postural functions, stairs could be done frequently. Other

postural functions, [such as] crawling [and] kneeling, could all be

done occasionally. I would avoid exposure to unprotected heights.

I would avoid excessive exposure to pulmonary irritants and

extreme cold should be avoided as well.

. . .

Q. How severe is the lumbar spine impairment according to

the x-rays of 6-F, 8-F, and 9-F?

A. Well, it’s reported to be significant degree of osteoarthritis,

but can I ask you how old the claimant is?

Q. She changed her age category, Doctor. She [was] 50 at

onset and she turned 55, I believe, September 25, 2019.

. . .

A. The reason I ask is because x-rays are quite unreliable.

You can’t make a leap from an x-ray to clinical symptoms. . .

Q. Okay, but the x-ray at 9-F, Page 30, does say severe diffuse

disc narrowing, advanced spondylosis and severe degenerative

disc disease, correct?

A. Yes. You need more specific imaging to use that as a

clinical barometer.

Q. What kind of imaging do you need, Doctor?

A. You need an MRI or, at the very least, a [CT] scan.

(Tr. 32-37.)

E. The ALJ’s Decision

At step two of the sequential evaluation process7, the ALJ found that

Plaintiff had the following severe impairments: low back pain, bilateral hip

pain, hypertension, asthma, left eye cataract, and alcohol abuse. (Tr. 15.) At

step three, the ALJ found that since May 31, 2015, Plaintiff did not have an

impairment or combination of impairments that met or medically equaled the

severity of one of the listed impairments. (Tr. 16.)

Then, before proceeding to step four, the ALJ determined that Plaintiff

had the RFC to perform light work as defined in 20 CFR § 404.1567(b) and §

416.967(b) with limitations. (Id.) The ALJ limited Plaintiff to lifting and

carrying 20 pounds occasionally and 10 pounds frequently, sitting for 7 hours

and standing/walking for 6 hours in an 8-hour workday, climbing stairs and

ramps no more than frequently and performing other postural activities no

more than occasionally. (Id.) In doing so, the ALJ discussed the evidence of

record. (Tr. 16-19.) He found that while Plaintiff’s medically determinable

impairments could reasonably be expected to cause the alleged symptoms,

7 The Commissioner employs a five-step process in determining disability.

See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).

her statements concerning the intensity, persistence, and limiting effects of

those symptoms were “not entirely supported for the reasons explained in

[the] decision.” (Tr. 16.)

Then, after determining that Plaintiff was unable to perform any past

relevant work, at the fifth and final step of the sequential evaluation process,

the ALJ found that there were jobs existing in significant numbers in the

national economy that Plaintiff could perform, such as labeler, ticker seller,

and inspector and packer. (Tr. 20-21.) All of these representative

occupations are light jobs with a Specific Vocational Preparation (“SVP”)

rating of 2. (Tr. 21.)

F. Analysis

As to the first issue, the Court agrees with Plaintiff that the ALJ erred

when he failed to explain why he did not credit Dr. McCarthy’s opinion that

she “would be capable of sitting, standing, [and] walking[,] if done so on an

occasional basis in 8-hour day,” in arriving at Plaintiff’s RFC. Despite giving

“significant weight” to Dr. McCarthy’s opinions, the ALJ failed to explain the

conflict between his RFC determination of light work and Dr. McCarthy’s

occasional walking and sitting limitation. (See Tr. 18.) This omission is

significant because the Vocational Expert (“VE”) testified that “when [labeler,

ticket seller, and inspector packer] were analyzed by the Department of

Labor, the standing was in the frequent range and [the VE] believe[d] that is

why [labeler, ticket seller, and inspector packer] [were] listed as light.” (Tr.

44.) At the same time, as Plaintiff points out, frequent means occurring from

one-third to two-thirds of the time, and Dr. McCarthy opined that Plaintiff

could only occasionally walk/sit/stand, while the light exertional level of work

requires her to do these actions frequently. (Doc. 25 at 10 (citing SSR 83-10).)

“The RFC assessment must always consider and address medical

source opinions. If the RFC assessment conflicts with an opinion from a

medical source, the adjudicator must explain why the opinion was not

adopted.” SSR 96-8p. The Court is not persuaded by Defendant’s argument

that the ALJ “fully” considered Dr. McCarty’s opinion. Indeed, the ALJ

recited Dr. McCarthy’s opinion, but a portion of it clearly conflicts with the

ALJ’s RFC assessment. Merely reciting the opinion without explaining the

rationale for rejecting a conflicting portion is insufficient. Thus, the case

shall be reversed and remanded with instructions to the ALJ to reconsider

the opinions of Dr. McCarthy, explain what weight the opinion is being

accorded, and the reasons therefor.

As to the second issue, the Court finds that the ALJ’s decision finding

Plaintiff’s subjective pain testimony inconsistent with the objective evidence

was erroneous because proper diagnostic imaging was lacking. Plaintiff

attacks, inter alia, the ALJ’s consideration of the diagnostic imaging. (Doc.

25 at 17.) While the Court does not agree that the ALJ was inappropriately

“playing doctor,” the Court is concerned with the ALJ’s failure to fully

develop the record by not ordering more diagnostic imaging. Pursuant to 20

C.F.R. § 416.917, the ALJ is required to order additional medical tests when

the claimant's medical sources do not give sufficient medical evidence to

make a determination as to disability. Here, Dr. Golub clearly stated on the

record that “without further imaging,” he could not draw any conclusions

regarding the severity of Plaintiff’s lumbar spine impairment and her

limitations with walking. (Tr. 39.) Yet, the ALJ relied on Dr. Golub’s opinion

without sending Plaintiff for further diagnostic imaging. Indeed, the ALJ

himself noted that “[d]iagnostic imaging also did not establish the presence of

any conditions that would have been expected to prevent all work” (Tr. 19),

but he failed to consider Dr. Golub’s statement that, more diagnostic imaging

is necessary because “you can’t see soft tissue on an x-ray[,]” and “[w]hen we

look at an MRI, you’re seeing soft tissue, you’re seeing if there’s any stenosis

of the central cord[,] [w]e’re looking to see if there’s any nerve root

impingement.” (Tr. 37.)

As the present record is devoid of any MRI or CT scans that speak to

the severity of Plaintiff’s lower back issues, Dr. Golub’s testimony should

have alerted the ALJ to the need for further imaging to determine whether

Plaintiff’s subjective pain symptoms aligned with the medical evidence.

“Social Security proceedings are inquisitorial rather than adversarial. It is

the ALJ's duty to investigate the facts and develop the arguments both for

and against granting benefits.” Sims v. Apfel, 530 U.S. 103, 110–111 (2000).

In this regard, the ALJ failed in his duty to develop the record, which in turn

lead to him improperly discounting Plaintiff’s pain allegations.

Based on the foregoing, the ALJ’s reasons for discounting Plaintiff’s

complaints of pain and related symptoms prior to September 25, 2019, and

the limiting effects of these symptoms in assessing the RFC, are not

supported by substantial evidence. In light of this conclusion and the

possible change in the RFC assessment for the relevant period, the Court

finds reversal and remand warranted. See Jackson v. Bowen, 801 F.2d 1291,

1294 n.2 (11th Cir. 1986) (per curiam); Freese v. Astrue, No. 8:06-cv-1839-T-

EAJ, 2008 WL 1777722, at *3 (M.D. Fla. Apr. 18, 2008); see also Demenech v.

Sec’y of the Dep’t of Health & Human Servs., 913 F.2d 882, 884 (11th Cir.

1990) (per curiam).

Accordingly, it is ORDERED:

1. The Commissioner’s decision is REVERSED and REMANDED

pursuant to sentence four of 42 U.S.C. § 405(g), with instructions to the ALJ

to: (a) reconsider Dr. McCarthy’s opinion, explain whether the portion

discussing Plaintiff’s occasional ability to walk/stand/sit is adopted, and the

reasons therefor; (b) reconsider the RFC assessment; (c) order an MRI or CT

scan to determine if the severity of Plaintiff’s subjective complaints correlate

with the proper medical images; and (d) conduct any further proceedings

deemed appropriate.

2. The Clerk of Court is directed to enter judgment accordingly,

terminate any pending motions, and close the file.

3. In the event that benefits are awarded on remand, any § 406(b)

or § 1383(d)(2) fee application shall be filed within the parameters set forth

by the Order entered in In re: Procedures for Applying for Attorney’s Fees

Under 42 U.S.C. §§ 406(b) & 13883(d)(2), Case No.: 6:12-mc-124-Orl-22 (M.D.

Fla. Nov. 18, 2012). This Order does not extend the time limits for filing a

motion for attorney’s fees under the Equal Access to Justice Act, 28 U.S.C. §

2412.

DONE AND ORDERED at Jacksonville, Florida, on August 17, 2022.

: MONTE C. RICHARDSON

UNITED STATES MAGISTRATE JUDGE

Copies to:

Counsel of Record

19