Williams v. Social Security Administration, Commissioner

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

NORTHEASTERN DIVISION

CHRISTAL LYNN WILLIAMS, )

)

Plaintiff, )

)

v. ) Case No. 5:18-cv-1464-GMB

)

ANDREW M. SAUL,1 Commissioner, )

Social Security Administration, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

Plaintiff Christal Lynn Williams filed an application for disability insurance

benefits and an application for supplemental security income in 2011. Her alleged

disability onset date is September 1, 2010. Williams’ applications for benefits were

denied at the initial administrative level. She then requested a hearing before an

Administrative Law Judge (“ALJ”). The ALJ held a hearing on May 14, 2013 and

denied Williams’ claims on June 21, 2013. Williams requested a review of the ALJ’s

decision by the Appeals Council, which reversed and remanded the decision. A

different ALJ held a hearing in Williams’ case on June 19, 2017. He denied

Williams’ claims on October 3, 2017. The Appeals Council declined review on July

1 Andrew M. Saul became the Commissioner of Social Security on June 5, 2019. Pursuant to Rule

25(d) of the Federal Rules of Civil Procedure, Saul is substituted for Nancy Berryhill as the proper

defendant in this case.

9, 2018. As a result, the second ALJ’s decision became the final decision of the

Commissioner of the Social Security Administration (the “Commissioner”) as of

July 9, 2018.

Williams’ case is now before the court for review pursuant to 42 U.S.C.

§§ 405(g) and 1383(c)(3). Under 28 U.S.C. § 636(c)(1) and Rule 73 of the Federal

Rules of Civil Procedure, the parties have consented to the full jurisdiction of a

United States Magistrate Judge. Based on its review of the parties’ submissions, the

relevant law, and the record as a whole, the court concludes that the decision of the

Commissioner is due to be REVERSED and REMANDED for proceedings

consistent with this opinion.

I. STANDARD OF REVIEW

The court reviews a Social Security appeal to determine whether the

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

proper legal standards.” Lewis v. Callahan, 125 F.3d 1436, 1439 (11th Cir. 1997).

The court will reverse the Commissioner’s decision if it is convinced that the

decision was not supported by substantial evidence or that the proper legal standards

were not applied. Carnes v. Sullivan, 936 F.2d 1215, 1218 (11th Cir. 1991). The

court “may not decide the facts anew, reweigh the evidence, or substitute its

judgment for that of the Commissioner,” but rather “must defer to the

Commissioner’s decision if it is supported by substantial evidence.” Miles v. Chater,

84 F.3d 1397, 1400 (11th Cir. 1997) (citation and internal quotation marks omitted).

“Even if the evidence preponderates against the Secretary’s factual findings, [the

court] must affirm if the decision reached is supported by substantial evidence.”

Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990). Moreover, reversal is not

warranted even if the court itself would have reached a result contrary to that of the

factfinder. See Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991).

The substantial evidence standard is met “if a reasonable person would accept

the evidence in the record as adequate to support the challenged conclusion.”

Holladay v. Bowen, 848 F.2d 1206, 1208 (11th Cir. 1988) (quoting Boyd v. Heckler,

704 F.2d 1207, 1209 (11th Cir. 1983)). The requisite evidentiary showing has been

described as “more than a scintilla, but less than a preponderance.” Bloodsworth v.

Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). The court must scrutinize the entire

record to determine the reasonableness of the decision reached and cannot “act as

[an] automaton[] in reviewing the [Commissioner’s] decision.” Hale v. Bowen, 831

F.2d 1007, 1010 (11th Cir. 1987). Thus, the court must consider evidence both

favorable and unfavorable to the Commissioner’s decision. Swindle v. Sullivan, 914

F.2d 222, 225 (11th Cir. 1990).

This court will reverse the Commissioner’s decision on plenary review if the

decision applies incorrect law or fails to provide the court with sufficient reasoning

to determine that the Commissioner properly applied the law. Grant v. Astrue, 255

F. App’x 374, 375–76 (11th Cir. 2007) (citing Keeton v. Dep’t of Health & Human

Servs., 21 F.3d 1064, 1066 (11th Cir. 1994)). There is no presumption that the

Commissioner’s conclusions of law are valid. Id.

II. STATUTORY AND REGULATORY FRAMEWORK

To qualify for disability benefits, a claimant must show the “inability to

engage in any substantial gainful activity by reason of any medically determinable

physical or mental impairment which can be expected to result in death or 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) & 416(i). A physical or mental impairment is “an

impairment that results from anatomical, physiological, or psychological

abnormalities which are demonstrated by medically acceptable clinical and

laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3). Williams bears the burden

of proving that she is disabled, and she is responsible for producing evidence

sufficient to support her claim. See Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th

Cir. 2003).

A determination of disability under the Social Security Act requires a five-

step analysis. 20 C.F.R. § 404.1520(a). The Commissioner must determine in

sequence:

(1) Is the claimant presently unable to engage in substantial gainful

activity?

(2) Are the claimant’s impairments severe?

(3) Do the claimant’s impairments satisfy or medically equal one of the

specific impairments set forth in 20 C.F.R. Pt. 404, Subpt. P,

App. 1?

(4) Is the claimant unable to perform her former occupation?

(5) Is the claimant unable to perform other work given her residual

functional capacity, age, education, and work experience?

See Frame v. Comm’r, Soc. Sec. Admin., 596 F. App’x 908, 910 (11th Cir. 2015).

“An affirmative answer to any of the above questions leads either to the next

question, or, [at] steps three and five, to a finding of disability. A negative answer

to any question, other than at step three, leads to a determination of ‘not disabled.’”

McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986) (quoting 20 C.F.R.

§ 416.920(a)−(f)). “Once the finding is made that a claimant cannot return to prior

work the burden of proof shifts to the Secretary to show other work the claimant can

do.” Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995) (citing Gibson v. Heckler,

762 F.2d 1516 (11th Cir. 1985)).

III. FACTUAL BACKGROUND

Christal Lynn Williams was born in Columbia, South Carolina. R. 1297. She

was 44 years old at the time of the ALJ’s decision. R. 61. She currently lives alone

in an apartment in Huntsville, Alabama. R. 62. Williams asserts that she suffers

from the following impairments: hypertension, headache, chronic neck pain, chronic

back pain, muscle spasms, degenerative joint disease, bilateral knee pain, arthritis,

bilateral carpal tunnel syndrome, incontinence, gout, insulin resistance, chronic

bronchitis, asthma, diabetes, insulin resistance, fibromyalgia, major depression,

adjustment disorder, generalized anxiety, post-traumatic stress disorder, and bipolar

disorder. Doc. 17 at 9. On her disability report, Williams alleged that carpal tunnel,

high blood pressure, knee and back problems, anxiety, depression, and pain

stemming from a car accident limited her ability to work. R. 505. Williams was

involved in a collision with a drunk driver in 2009. R. 1297.

Williams completed some high school education and later obtained her GED.

R. 62. She also obtained a cosmetology certificate from Drake Technical College.

R. 62. Williams has past work experience in the collections industry. She last

worked for Medco, a collection agency for hospital bills. R. 63. She also worked in

collections for CHECKredi and DirecTV. R. 63 & 1298. She served as a supervisor

in these roles. R. 63. Williams also cut hair on the side. R. 63. She once was a

manager at a Krystal fast food restaurant. R. 101. A Vocational Expert (“VE”)

classified Williams’ past work as light and semiskilled, light and skilled, or

sedentary and skilled. R. 102.

The ALJ held a hearing in Williams’ case on June 19, 2017. R. 58. During

the hearing, the ALJ posed the following hypothetical to the VE:

I’d like you to assume a hypothetical individual the age, education and

prior work history of the claimant. There’s no lifting restrictions.

There are safety precautions of no work on ladders, ropes or scaffolds,

no work around dangerous moving machinery or at unprotected

heights, no commercial driving. Hypothetical individual should have

her own workstation, no assembly line work, no work where there is

direct contact with people, meaning as a cashier. The hypothetical

individual is limited to simple, unskilled work, can perform simple one

or two step jobs. The hypothetical individual can, I’m sorry, can

understand and remember simple instructions. Hypothetical individual

can sustain attention and concentration to simple tasks for two hour

periods across an eight hour work day, five day work week with all

customary work breaks. Hypothetical individual can have occasional

contact with co-workers, supervisors and the general public.

Hypothetical individual can work with objects and things rather than

work assisting people.

R. 103. The VE testified that this hypothetical individual could not perform any of

Williams’ past work. R. 103. The VE testified that this person could, however, work

as a bottling line attendant, an inspector, and a marker if she could occasionally lift

and carry twenty pounds and frequently lift and carry ten pounds. R. 103 & 105.

Williams’ attorney asked whether this individual could find employment if she was

required to miss three days of work each month. R. 105. The VE testified that these

absences would not be tolerated. R. 106. Williams’ attorney asked whether this

individual could find work if she missed two days per month. R. 106. The VE also

testified that this would not be acceptable. R. 106. However, the VE testified that

this hypothetical individual could miss work one day per month. R. 106. Williams’

attorney asked whether this individual could maintain employment if she had poor

memory, poor understanding, and poor ability to follow simple unskilled

instructions. R. 106. The VE said that she could not. R. 106.

At the hearing, the ALJ also posed the following hypothetical to the VE:

[H]ypothetical number two, same limitations expressed in hypothetical

number one, would have the hypothetical individual limited to frequent

use of the hands, can handle objects such as as small as a spoon,

toothbrush, fork, jewelry.

R. 105. The VE testified that the second hypothetical individual also could perform

work as a bottling line attendant, inspector, and marker. R. 105. And the VE testified

that this individual could miss one day of work per month, but no more. R. 106.

Upon further questioning by Williams’ attorney, the VE testified that this second

hypothetical individual could not perform any of the listed jobs if she had poor

memory, poor understanding, and poor ability to concentrate and follow simple

instructions. R. 107.

The ALJ issued his decision on October 3, 2017. R. 45. Under step one of the

five-step evaluation process, the ALJ found that Williams had not engaged in

substantial gainful activity since September 1, 2010. R. 18. The ALJ concluded that

Williams suffers from the following severe impairments under 20 C.F.R.

§ 404.1520(c) and § 416.920(c): affective mood disorder, carpal tunnel syndrome,

and morbid obesity. R. 18. The ALJ noted that these medically determinable

impairments significantly limit her ability to perform basis work activities. R. 18.

But the ALJ concluded at step three of the analysis that none of Williams’

impairments satisfied or medically equals the severity of one of those listed in the

applicable regulations. R. 19–20.

At steps four and five, the ALJ found that Williams has the residual functional

capacity (“RFC”) to perform work at all exertional levels with some limitations.

Specifically, the ALJ determined that

the claimant has the residual functional capacity to perform work at all

exertional levels with no lifting restrictions. She can frequently use her

hands and handle small objects such as a spoon, fork, jewelry, and

toothbrush; no work on ladders ropes or scaffolds; no work around

dangerous moving machinery or unprotected heights; no commercial

driving; she should have her own work station, and no assembly line

work; no work where there is direct contact with people such as a

cashier; she can perform simple unskilled work and perform simple one

to two step jobs; can understand and remember simple instructions and

sustain attention and concentration for the simple task for two-hour

periods, across an eight-hour workday, five-day workweek, with all

customary work breaks; can have occasional contact with the general

public, coworkers and supervisors; and should work with things as

opposed to working assisting people.

R. 22. Ultimately, the ALJ determined that Williams is unable to perform any past

relevant work. R. 42. But considering Williams’ age, education, work experience,

and RFC, he found that there are jobs that Williams can perform that exist in

significant numbers in the national economy. R. 43. Therefore, the ALJ concluded

that Williams is not disabled within the meaning of the Social Security Act. R. 54.

Based on these findings, the ALJ denied Williams’ claims. R. 44.

IV. DISCUSSION

Williams presents five issues on appeal: (1) the ALJ abused his discretion in

failing to determine the severity of Williams’ impairments; (2) the ALJ abused his

discretion in finding that Williams did not have an impairment or combination of

impairments that medically equals the severity of one of the listed impairments;

(3) the ALJ did not properly evaluate Williams’ complaints of pain as required under

the Eleventh Circuit’s pain standard; (4) the ALJ failed to accept the opinion of the

treating physician without good cause; and (5) the ALJ erred in his determination of

Williams’ RFC. Doc. 17. The court first turns to Williams’ first and fourth

contentions. The court then will address Williams’ second contention. Because the

court agrees with Williams that the ALJ abused his discretion in finding that

Williams did not satisfy a listed impairment, it declines to address her remaining

arguments.

A. Severity of Impairments

Williams alleges that the ALJ erred in determining that many of her

impairments should be classified as non-severe. Doc. 17 at 10. However, because

the ALJ considered both Williams’ severe and non-severe impairments when

determining her RFC, the ALJ did not commit reversible error in classifying certain

impairments as non-severe.

A determination of disability under the Social Security Act requires a five-

step analysis. At step one, the ALJ determines whether the claimant has engaged in

any substantial gainful employment. At step two, the ALJ determines whether the

claimant suffers from any severe impairments. An “impairment is [] considered

severe if it [] significantly limit[s] the claimant’s physical or mental ability to do

basic work activities.” Brady v. Heckler, 724 F.2d 914, 920 (11th Cir. 1984). Step

two “acts as a filter; if no severe impairment is shown the claim is denied, but the

finding of any severe impairment, whether or not it qualifies as a disability and

whether or not it results from a single severe impairment or a combination of

impairments that together qualify as severe, is enough to satisfy the requirement of

step two.” Jamison v. Bowen, 814 F.2d 585, 588 (11th Cir. 1987); see also Hearn v.

Comm’r, Soc. Sec. Admin., 619 F. App’x 892, 895 (11th Cir. 2015) (“Thus, the

finding of any severe impairment, whether or not it results from a single severe

impairment or combination of impairments that together qualify as ‘severe’ is

enough to satisfy step two.”); Hamilton v. Colvin, 2016 WL 613888, at *3 (N.D.

Ala. Feb. 16, 2016) (finding that “the ALJ could not have committed any error at

step two because he found that the claimant had a severe impairment or combination

of impairments and moved on to the next step in the evaluation, which is all that is

required at step two”). This is because “the ALJ must consider the applicant’s entire

medical condition in determining whether the applicant can return to her past work

(step four), and if not, whether the applicant can perform other work available in the

national economy (step five).” Jamison, 814 F.2d at 588. Thus, so long as the ALJ

finds at least one severe impairment, he is required to move to the next steps, at

which point he must consider all of the claimant’s impairments—regardless of

whether the impairments meet the definition of “severe.” Consequently, any error

at step two is harmless if the ALJ first finds a severe impairment and later considers

all the claimant’s impairments. See Hearn, 619 F. App’x at 895 (“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.”). “In

other words, the ALJ’s failure to find a particular impairment severe is not reversible

error if the ALJ found other severe impairments.” Hamilton, 2016 WL 613888, at

*9 (citing Maziarz v. Sec’y of Health & Human Servs., 837 F.2d 240, 244 (6th Cir.

1987)).

Here, the ALJ determined that Williams suffered from the severe impairments

of affective mood disorder, carpal tunnel syndrome, and morbid obesity. R. 18. In

determining Williams’ RFC, he considered all of her medical conditions, both severe

and non-severe. He explicitly articulated that “[a]ll of the claimant’s impairments

have been considered in combination without regard to whether any impairment if

considered separately would be vocationally relevant.” R. 42. The ALJ discussed

Williams’ mental impairments at length. R. 24–27. He specifically addressed

counsel’s allegations that Williams suffers from anxiety, adjustment disorder,

depression, post-traumatic stress disorder, and bipolar disorder. R. 24. The ALJ also

considered the treating physician’s diagnoses of hypertension, incontinence, and

gout. R. 31. However, as discussed below, the ALJ assigned little weight to these

opinions because the diagnoses were based on Williams’ subjective complaints and

not on objective medical evidence. R. 31. The ALJ evaluated Williams’ complaints

of back pain, knee pain, and muscle spasms. R. 32. He considered the treating

physician’s opinion regarding Williams’ chronic bronchitis and exposure to fumes

and noxious odors. R. 33.

The ALJ acknowledged that he considered both Williams’ severe and non-

severe impairments when determining her RFC. R. 27. Regarding any conditions

that did not explicitly appear in his opinion, the ALJ observed that

the overall evidence of record supports a finding that any other

condition, not specifically mentioned in this decision, but that may be

mentioned briefly in the record is not considered severe. In reviewing

the record, special attention was given to the duration and frequency of

medical conditions for which the claimant sought treatment. Therefore,

the undersigned finds that those impairments that are not specifically

mentioned reveal only a slight abnormality having such minimal effect

on an individual that it would not be expected to interfere with the

individual’s ability to work, irrespective of age, education or work

experience and are therefore, non-severe.

R. 27. To conclude, by finding three severe impairments and considering all of

Williams’ impairments when determining her RFC, the ALJ did not commit

reversible error.

B. Treating Physician’s Opinion

Williams asserts that the ALJ failed to articulate good cause for disregarding

the opinion of her treating physician, Dr. Marie Cebert. Doc. 17 at 55–60. “In

evaluating medical opinions, the ALJ considers many factors, including the

examining relationship, the treatment relationship, whether the opinion is amply

supported, whether the opinion is consistent with the record and the doctor’s

specialization.” Kelly v. Comm’r of Soc. Sec., 401 F. App’x 403, 407 (11th Cir. 2010)

(citing 20 C.F.R. §§ 404.1527(d) & 416.927(d)). “The opinions of non-examining,

non-reviewing physicians, are entitled to little weight when contrary to those of an

examining physician, and taken alone, they do not constitute substantial evidence.”

Forrester v. Comm’r of Soc. Sec., 455 F. App’x 899, 901 (11th Cir. 2012). The

opinions of examining physicians are given more weight than those of non-

examining physicians, and the opinions of treating physicians are given substantial

weight unless the ALJ shows good cause for not doing so. See id. “This Court has

concluded that ‘good cause’ exists when the: (1) treating physician’s opinion was

not bolstered by the evidence (2) evidence supported a contrary finding; or (3)

treating physician’s opinion was conclusory or inconsistent with the doctor’s own

medical records.” Phillips v. Barnhart, 357 F.3d 1232, 1240–41 (11th Cir. 2004).

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

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

clinical or laboratory findings.” Bloodsworth v. Heckler, 703 F.2d 1233, 1240 (11th

Cir. 1983).

In any event, “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). This is because the “ALJ is not allowed

to make medical findings or indulge in unfounded hunches about the claimant’s

medical condition.” Smith v. Astrue, 641 F. Supp. 2d 1229, 1233 (N.D. Ala. 2009).

“In the absence of such a statement, it is impossible for a reviewing court to

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

supported by substantial evidence. Id. (internal citation omitted).

“In determining whether substantial evidence exists, we must view the record

as a whole, taking into account evidence favorable as well as unfavorable to the

Secretary’s decision.” Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). The

court cannot affirm the ALJ’s decision “simply because some rationale might have

supported” it. Winschel, 631 F.3d at 1179 (internal citation omitted). However, “the

ultimate determination of disability is reserved for the ALJ.” Green v. Soc. Sec.

Admin., 223 F. App’x 915, 923 (11th Cir. 2007); see also Harris v. Astrue, 546 F.

Supp. 2d 1267, 1281 (N.D. Fla. 2008) (“The Commissioner’s regulations and the

interpretations of those regulations clearly provide that an ALJ should give weight

to a physician’s opinions concerning the nature and severity of a claimant’s

impairments, but that the ultimate question of whether there is disability or inability

to work is reserved to the Commissioner.”).

Here, Dr. Cebert provided three sources of evidence for her opinions: her

treatment notes, several To-Whom-It-May-Concern letters, and medical source

opinion forms. The ALJ demonstrated good cause for assigning the opinions in these

records little or no weight. The ALJ rejected Dr. Cebert’s opinions for four primary

reasons: (1) Dr. Cebert relied entirely on Williams’ subjective complaints; (2) Dr.

Cebert’s findings are not supported by objective medical evidence, (3) Dr. Cerbert’s

opinions are conclusory, and (4) Dr. Cebert’s findings are inconsistent with other

medical opinions. The ALJ also reasoned that the limitations identified by Dr.

Cebert “were not bolstered by the evidence, the evidence supports a contrary

finding[], or the limitations were conclusory or inconsistent with [Dr. Cebert’s] own

medical records.” R. 35. The court will address each piece of evidence provided by

Dr. Cebert in turn.

1. Treatment Notes

The ALJ properly discounted Dr. Cebert’s treatment notes, which are

conclusory and unsupported by objective medical evidence. See Schnorr v. Bowen,

816 F.2d 578, 582 (11th Cir. 1987) (“The Secretary properly discounted [the

doctor’s] opinion that [the claimaint] was totally disabled because it was not

supported by objective medical evidence and was merely conclusory.”). Williams

argues that Dr. Cebert “examined Ms. Williams, she made her diagnoses, and then

formulated a plan based upon her clinical and laboratory findings.” Doc. 17 at 56.

But, to borrow a phrase from the ALJ, Dr. Cebert’s treatment notes contain “scant

objective documentation.” R. 24. The treatment notes span the time period from

2011 through 2017, yet only one laboratory test is included. R. 1042–44. The test,

conducted in June 2016, reflects information like Williams’ hemoglobin levels.

R. 1042. However, neither Dr. Cebert’s treatment notes nor the plaintiff’s briefing

explain why this test was conducted, what helpful information the test revealed, or

how the clinical findings factored into Dr. Cebert’s treatment of Williams.

Instead, the treatment notes consist almost entirely of Williams’ subjective

complaints, which are “unsubstantiated by any clinical or laboratory findings.” See

Bloodsworth, 703 F.2d at 1240. Dr. Cebert’s treatment notes contain only checks in

a preprinted column indicating whether Williams’ skin, head, eye, ears, nose, mouth,

throat, neck, lymph nodes, chest, breast, heart, and lung are normal; a list of medical

conditions; drugs to be prescribed; and subjective complaints. Sometimes, the

treatment notes reflect nothing but the checkmarks in the preprinted column and a

list of medical conditions. For example, Dr. Cebert examined Williams on July 29,

2011. R. 882. The treatment notes from that date include only the checkmarks in the

preprinted column, the word “General,” and a list that reads “A/P, pedal edema,

HTN, and HA.” R. 882. The treatment notes that do contain more detail are never

accompanied by objective evidence but instead consist entirely of Williams’

subjective complaints. For example, Dr. Cebert might write that “pt states panic

attack” or “has difficulty w/sleep,” but her notes would not reflect that she employed

any objective testing or elicited a detailed description of Williams’ symptoms.

R. 885. Dr. Cebert’s treatment notes are not entitled to substantial weight because

the notes are not accompanied by objective medical evidence and are conclusory.

See Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1159 (11th Cir. 2004) (“A

treating physician’s report may be discounted when it is not accompanied by

objective medical evidence or is wholly conclusory.”).

Additionally, Dr. Cebert’s treatment notes are contradicted by other medical

evidence. For example, Dr. Cebert frequently lists conditions like “back pain,”

“knee pain,” and “carpel tunnel,” but these conditions are not supported by the

opinions of other medical professionals. Dr. Eston Norwood evaluated Williams on

March 9, 2017. R. 1283. Although Dr. Norwood found that Williams had only 50%

of normal lumbar rotation, he also found that she had good range of motion in her

neck and limbs. Williams was able to perform normally in finger to nose and heel

to shin tests. Williams could rise from a sitting position and walk without assistance.

She could open and close her fist, open and close a safety pin, and button and

unbutton. Dr. Norwood recorded that Williams had subjective complaints of back

pain, but noted that she had no objective neurological deficit or evidence of physical

neurological impairment preventing her from working. R. 1283–86.

Treatment notes from the Orthopedic Clinic reveal similar findings

contradicting Dr. Cebert’s opinions. Williams met with Dr. Ginger Bryant at the

Orthopedic Clinic in Huntsville on September 10, 2012. R. 951. Dr. Bryant found

that Williams had full range of motion in both of her knees. R. 951. Dr. Bryant

explained that Williams has mild arthritis but no injuries. R. 951. In June 2012, Dr.

Bryant conducted a physical examination of Williams and found that she had a good

range of motion in the hip, knee, and ankle. R. 952. An MRI did not reveal any

specific injury to Williams’ knees. R. 952–53. Dr. Bryant counseled Williams about

her obesity and its effects on her knees, and told Williams that pain medication was

not the answer to her arthritis. R. 951.

For all of these reasons, the ALJ articulated good cause for assigning little

weight to Dr. Cebert’s opinions. The ALJ correctly reasoned that Dr. Cebert’s

treatment notes “lack even cursory objective tests [and] do not support limitations to

the subjective statements of the claimant.” R. 35. Additionally, other medical

sources contradict Dr. Cebert. Accordingly, the opinions found in Dr. Cebert’s

treatment notes are not entitled to the customary substantial weight afforded treating

physicians.

2. To-Whom-It-May-Concern Letters

Dr. Cebert submitted four one-page letters to the Social Security

administration on Williams’ behalf. R. 966, 991, 993 & 1151. In these letters, Dr.

Cebert identified Williams’ medical conditions and her medications. Dr. Cebert

wrote that Williams has mentioned that she has difficulty standing, sitting, and

focusing her attention. R. 966. Dr. Cebert also stated that Williams self-reported

that her hands cramp when she uses them for an extended period of time. R. 991,

966 & 1151. Dr. Cebert opined that Williams is a possible candidate for disability.

R. 991, 966 & 1151. The ALJ identified the following opinions from Dr. Cebert’s

letters:

[D]ue to the claimant’s incontinence, pedal edema, and hypertension

for which she takes a diuretic, she would need to take frequent

bathroom breaks. Due to her carpal tunnel, she has cramping in her

hands when she used them [for] long periods of time. Due to gout, back

and knee pain, she has difficulty walking, standing, or sitting for long

periods of time without breaks. Additionally due to her anxiety, she

has difficulty focusing and/or staying on task.

R. 31. Ultimately, the ALJ assigned “very little weigh to these statements.” R. 31.

He did so because Williams requested that the letters be written,2 the conditions and

limitations identified in the letters were inconsistent with Dr. Cebert’s treatment

notes, Dr. Cebert relied heavily on Williams’ subjective complaints, and the opinions

were conclusory. R. 31. The court finds that the ALJ properly assigned little weight

to the opinions expressed in these letters because they are conclusory and

unsupported by objective medical evidence. See Johns v. Bowens, 821 F.2d 551, 555

(11th Cir. 1987).

For example, in her letters, Dr. Cebert does not point to any objective evidence

to support the assertion that Williams is incontinent. A review of the treatment notes

similarly reveals no supporting objective documentation of incontinence. As

discussed above, the treatment notes consist almost entirely of Williams’ subjective

complaints and are “unsubstantiated by any clinical or laboratory findings.” See

2 During a patient visit on August 28, 2015, Dr. Cebert noted that “pt needs letter indicating

difficulty with prolonged standing” R. 1149.

Bloodsworth, 703 F.2d at 1240. Dr. Cebert provides no objective testing or

laboratory results to support the assertion that Williams is incontinent, takes a

diuretic, or requires frequent bathroom breaks. The treatment notes do contain the

letters “HTN,” which presumably refer to concerns about hypertension.

Occasionally the word “Clonidine” appears in the treatment notes.3 But there is no

mention of a diuretic, constipation, or incontinence. There is no explanation of the

basis for making the notations “HTN” and “Clonidine” or a description of symptoms

suggesting incontinence.

Occasionally, the notation “GERD”4 appears in Dr. Cebert’s treatment notes,

but again this note is not accompanied by an explanation, a description of symptoms,

or objective evidence. R. 887 & 885. Occasionally “GI” appears, but apart from a

GERD notation in February 2011, the GI notation is never accompanied by positive

symptoms. R. 887, 960, 961, 972 & 1232. On May 14, 2012, Dr. Cebert recorded

that Williams’ hypertension and high blood pressure were controlled by multiple

medications. R. 962. Records from Village Healthcare, where Dr. Cebert worked,

do indicate that Williams was prescribed Verapamil and Clonidine. R. 970–71, 1034,

1037–38 & 1253. However, there is no indication in the treatment notes that

3 Clonidine is a blood pressure medication that can cause constipation. CLONIDINE HCL SIDE

EFFECTS BY LIKELIHOOD AND SEVERITY, https://www.webmd.com/drugs/2/drug-11754-24/clonidin

e-hcl-oral/clonidine-oral/details/list-sideeffects (last visited February 10, 2020).

4 The acronym “GERD” stands for gastroesophageal reflux disease, a digestive disorder that

affects the lower esophageal sphincter. GASTROESOPHAGEAL REFLUX DISEASE, https://www.webmd

.com/heartburn-gerd/guide/reflux-disease-gerd-1#1 (last visited on February 10, 2020).

Williams suffered side effects from these medications. R. 962. Once, on December

12, 2011, Dr. Cebert recorded “Depression/Need to go,” which perhaps could refer

to incontinence. R. 878. However, there is no further explanation or objective

evidence explaining the “Need to go” notation. R. 878. In other words, there is

simply no objective evidence to back up the conclusory assertion that Williams is

incontinent or needs to take frequent bathroom breaks. See Bloodsworth, 703 F.2d

at 1240 (“[T]he opinion of a treating physician may be rejected when it is so brief

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

clinical or laboratory findings.”).

Dr. Cebert’s claims regarding pedal edema, carpal tunnel, anxiety, trouble

focusing, and difficulty walking, standing, or sitting are similarly conclusory and

unsupported by objective evidence. Again, Dr. Cebert does not point to any

objective evidence in her letters, and her treatment notes do not support her

assertions in the letters. For example, “pedal edema” appears a few times in the

treatment notes. R. 882, 883 & 958. But the notation is not accompanied by

objective tests, a description of symptoms, or an explanation of the diagnosis.

Similarly, any mention of carpal tunnel, anxiety, and difficulty ambulating is missing

any objective findings in support. R. 11. Instead, the treatment notes reflect only the

claimant’s subjective complaints or an apparent diagnosis without explanation. “A

treating physician’s report may be discounted when it is not accompanied by

objective medical evidence or is wholly conclusory.” Crawford, 363 F.3d at 1159.

Here, it was appropriate for the ALJ to reject Dr. Cebert’s To-Whom-It-May-

Concern letters because her opinions in the letters were not accompanied by

objective medical evidence and were conclusory.

3. Medical Source Opinion Forms

Dr. Cebert also submitted medical source opinion forms on behalf of

Williams. R. 995–96 & 1221–24. The forms ask the person completing them to

check “yes or no” to questions such as “Are your patient’s impairments likely to

produce good days and bad days?” and “Does your patient have significant

limitations in doing repetitive motion activities such as reaching, handling, or

fingering?” R. 995–96 & 1221–24. The forms also ask the person completing them

to check one of four boxes—constantly, frequently, occasionally, or never—to

indicate how long the patient can do certain activities, like standing, walking,

sitting, reaching, pushing, pulling, lifting or carrying. R. 995–96 & 1221–24. The

forms also ask the doctor to use a checkmark to indicate whether the patient can

constantly, frequently, occasionally, or never be exposed to extreme cold and

humidity, vibration, fumes, moving mechanical parts, and other hazards. R. 995–96

& 1221–24.

On these forms, Dr. Cebert indicated that Williams’ disability onset date was

in 2009. R. 1221. She opined that Williams would have to miss work more than

three times per month. R. 1221. On the form Dr. Cebert completed in May 2013,

she indicated that Williams could only sit and stand for ten minutes and walk for

five minutes. R. 995. But Dr. Cebert opined that Williams could sit, stand, and walk

for ten minutes in 2016. R. 1221. On these forms, Dr. Cebert indicated that

Williams would need to lie down “as much as possible (4 to 6 hours)” due to the

side effects from her medication R. 1221. She checked a box reflecting that

Williams could never push, pull, climb, balance, kneel, crouch, or crawl. R. 1222.

Dr. Cebert indicated that Williams could occasionally be exposed to fumes and

could occasionally drive automotive equipment. R. 996 & 1223. In her opinion,

Williams could never be near moving, mechanical parts or work in high, exposed

places. R. 996 & 1223.

The court concludes that the ALJ has shown “good cause” for assigning little

or no weight to the medical source opinion forms signed by Dr. Cebert. First, the

forms are a series of questions to which Dr. Cebert responded by simply checking

boxes with little to no explanation of her answers. R. 995–96 & 1221–24. The

opinions therefore are conclusory and have limited probative value. Indeed, several

courts have criticized “form reports” such as these where a physician merely checks

off a list of symptoms without providing an explanation of the evidence that supports

the decision. See, e.g., Wilkerson ex rel. R.S. v. Astrue, 2012 WL 2924023, at *3

(N.D. Ala. July 16, 2012) (finding that the “form report completed by Dr. Morgan

and submitted by [plaintiff]’s counsel consisted of a series of conclusory ‘check-

offs’ devoid of any objective medical findings”); Mason v. Shalala, 994 F.2d 1058,

1065 (3d Cir. 1993) (“Form reports in which a physician’s obligation is only to check

a box or fill in a blank are weak evidence at best[.]”); Foster v. Astrue, 410 F. App’x

831, 833 (5th Cir. 2011) (holding that he use of a “questionnaire” format typifies

“brief or conclusory” testimony); Hammersley v. Astrue, 2009 WL 3053707, at *6

(M.D. Fla. Sept. 18, 2009) (“[C]ourts have found that check-off forms . . . have

limited probative value because they are conclusory and provide little narrative or

insight into the reasons behind the conclusions.”). This court agrees that there are

significant inherent limitations in the utility of form reports.

Second, as explained by the ALJ, Dr. Cebert’s treatment notes do not support

the opinions stated in the medical source opinion statements. Although Dr. Cebert’s

treatment records contain notations of “chronic bronchitis,” “back pain,” “knee

pain,” and “anxiety,” there are no objective tests in her notes to bolster these

complaints. Instead, these notations appear to be based entirely on Williams’ self-

reported symptoms. Apart from these sorts of notations and check marks on a

preprinted column indicating whether Williams’ skin, head, eye, ears, nose, mouth,

throat, neck, lymph nodes, chest, breast, heart, and lung were normal, there is no

other information. The only abnormal checks Williams consistently received were

for “movement” of the head, sinus tenderness, and post-nasal drip. But apart from

the notation “chronic bronchitis,” there is no explanation of these symptoms. R. 877–

88, 913–16, 955–62, 972–74, 1014–17, 1039–41, 1046-65, 1172–80, 1198–1200,

1250–52 & 1307–10. On a few occasions, Williams received an abnormal ear

discharge notation. R. 1041, 1046, 1051, 1054, 1056, 1174, 1178, 1198–1200, 1231–

32 & 1250–52. Dr. Cebert sometimes marked that Williams had sinus tenderness

and post-nasal drip but did not include even a “chronic bronchitis” notation. R. 882,

883, 913 & 956. Simply put, nothing in the treatment notes from Dr. Cebert suggests

the extreme limitations reflected in the medical source opinion forms.

For the reasons discussed above, the court concludes that the ALJ did not err

in according little weight to the medical source opinions signed by Dr. Cebert. The

ALJ clearly articulated his reasons for assigning little weight to these opinions and

the court agrees with the ALJ that the opinions are not supported by the treatment

records and that the forms themselves are conclusory with limited probative value.

C. The Listings

Williams argues that the ALJ abused his discretion in determining that she did

not have a physical or mental impairment or combination of impairments that

satisfied a listed impairment in the Social Security regulations.

Williams contends that the ALJ abused his discretion in finding that she did

not meet the listing criteria for anxiety disorder (Listing 12.06).5 Doc. 17 at 29.

5 In a heading of her brief, Williams also asserts that she satisfies the listing criteria for depression

The Listings of Impairments in the Social Security Regulations identify impairments

severe enough to prevent a person from engaging in gainful activity. See 20 C.F.R.

Pt. 404, Subpt. P, App’x 1. If a claimant meets a listed impairment or otherwise

establishes an equivalence, the regulations establish a disability. See 20 C.F.R.

§ 416.920(d). But if an impairment manifests only some of the criteria, then it does

not qualify as a disability, no matter how severe the impairment. Nichols v. Comm’r

of Soc. Sec., 679 F. App’x 792, 795 (citing Sullivan v. Zebley, 493 U.S. 521, 530

(1990)).

To meet the requirements of a Listing, a claimant must “have a medically

determinable impairment(s) that satisfies all of the criteria in the listing.” 20 C.F.R.

§ 404.1525(d). In other words, to “meet a Listing, the claimant must (1) have a

diagnosed condition that is included in the listings and (2) provide objective medical

reports documenting that this condition meets the specific criteria of the applicable

listing and the duration requirement.” Proctor v. Comm’r of Soc. Sec., 2016 WL

4473187, at *4 (M.D. Fla. Aug. 25, 2016). The burden is on the claimant to show

that her impairments meet a listed impairment. Barron v. Sullivan, 924 F.2d 227,

and bipolar disorder (Listing 12.04) and post-traumatic stress disorder (Listing 12.15). However,

Williams’ brief does not include any substantive discussion of these listings, and therefore she has

waived these arguments. See Singh v. U.S. Atty. Gen., 561 F.3d 1275, 1278 (11th Cir. 2009) (“[A]n

appellant’s brief must include an argument containing appellant’s contentions and the reasons for

them, with citations to the authorities and parts of the record on which the appellant relies.”)

(quotation marks omitted). “[A] legal claim or argument that has not been briefed before the court

is deemed abandoned and its merits will not be addressed.” Access Now, Inc. v. Sw. Airlines Co.,

385 F.3d 1324, 1330 (11th Cir. 2004).

229 (11th Cir. 1991). The regulations also provide that the claimant “must furnish

medical and other evidence that [the Commissioner] can use to reach conclusions

about [her] medical impairment(s).” 20 C.F.R. § 404.1512(a). As referenced above,

the claimant’s impairment must “meet all of the specified medical criteria. An

impairment that manifests only some of those criteria, no matter how severely, does

not qualify.” Sullivan v. Zebley, 493 U.S. 521, 530 (1990).

A claimant can meet the listing for anxiety disorder by showing that she

satisfies the criteria in paragraphs A and B of that listing. 20 C.F.R. Pt. 404, Subpt.

P, App. 1, § 12.06. Alternately, the claimant may show that she meets the listing by

satisfying the criteria in paragraphs A and C of Listing 12.06. The paragraph A

criteria set forth clinical findings that medically substantiate a mental disorder. See

Listing 12.00A. The criteria in paragraphs B and C describe functional limitations

that would prevent any gainful employment.

To satisfy the paragraph B criteria of Listing 12.06, the claimant must

establish that she has an extreme limitation in one, or a marked limitation in two, of

certain areas of mental functioning. The listed areas are the claimant’s abilities to

(1) understand, remember, or apply information; (2) interact with others;

(3) concentrate, persist or maintain pace; and (4) adapt or manage herself. To

satisfy the criteria in a paragraph C, a claimant must establish a mental disorder that

is “serious and persistent” in that it has lasted for a period of at least two years and

there is evidence of both of the following: (1) medical treatment, mental health

therapy, psychosocial support, or a highly structured setting that is ongoing and that

diminishes the symptoms and signs of the mental disorder; and (2) marginal

adjustment (that is, a minimal capacity to adapt to changes in your environment or

to demands that are not already part of daily life).

Williams argues that she satisfies the paragraph A criteria (R. 29–32) and the

paragraph B criteria. Doc. 17 at 29. However, Williams’ argument relies on an old

version of the listings, which were revised on September 26, 2016. The new listings

went into effect on January 17, 2017. The outdated listings on which Williams

relies provide the following:

12.06 Anxiety-related disorders: In these disorders anxiety is either the

predominant disturbance or it is experienced if the individual attempts

to master symptoms; for example, confronting the dreaded object or

situation in a phobic disorder or resisting the obsessions or compulsions

in obsessive compulsive disorders. The required level of severity for

these disorders is met when the requirements in both A and B are

satisfied, or when the requirements in both A and C are satisfied.

A. Medically documented findings of at least one of the following:

1. Generalized persistent anxiety accompanied by three out of four of

the following signs or symptoms: a. Motor tension; or b. Autonomic

hyperactivity; or c. Apprehensive expectation; or d. Vigilance and

scanning; or 2. A persistent irrational fear of a specific object, activity,

or situation which results in a compelling desire to avoid the dreaded

object, activity, or situation; or 3. Recurrent severe panic attacks

manifested by a sudden unpredictable onset of intense apprehension,

fear, terror and sense of impending doom occurring on the average of

at least once a week; or 4. Recurrent obsessions or compulsions which

are a source of marked distress; or 5. Recurrent and intrusive

recollections of a traumatic experience, which are a source of marked

distress;

AND

B. Resulting in at least two of the following: 1. Marked restriction of

activities of daily living; or 2. Marked difficulties in maintaining social

functioning; or 3. Marked difficulties in maintaining concentration,

persistence, or pace; or 4. Repeated episodes of decompensation, each

of extended duration.

OR

C. Resulting in complete inability to function independently outside the

area of one’s home.

20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.06 (amended 2017). Williams focuses her

arguments on alleged restrictions in her daily activities. To the extent these

arguments relate to the current listings, the court has considered them. Williams

makes no argument as to the paragraph C criteria.

The ALJ determined that Williams did not meet the Listing for anxiety

disorder. R. 20. He found that Williams has only moderate limitations in the

functional areas of understanding, remembering, or applying information;

interacting with others; and concentrating, persisting, or maintaining pace. R. 21.

The ALJ found that Williams has only mild limitations in the functional area of

adapting and managing herself. R. 21. Accordingly, the ALJ concluded that

paragraph B was not satisfied because Williams did not have a marked limitation in

two domains of functioning or an extreme limitation in one domain. R. 21. As to

the paragraph C criteria, the ALJ found that the “record does not demonstrate

medical treatment, mental health therapy, psychosocial supports, or a high structured

setting that diminishes the symptoms and signs of the claimant’s mental disorder,

with claimant achieving only marginal adjustment.” R. 22. The ALJ reasoned that

“while the claimant demonstrated improvement with treatment for her anxiety

disorder, even during period[s] of increased symptoms, the claimant was able to

adapt to changes, including preparing simple meals, caring for her own personal

needs, and interacting with others.” R. 22. However, this court concludes that

substantial evidence does not support the ALJ’s determination that Williams fails to

satisfy the paragraph B criteria.

The ALJ relied on Williams’ function report to support his finding that she

has only moderate limitations in understanding, remembering, or applying

information. R. 21. The ALJ noted that Williams alleged she had problems with her

memory, but on her function report she indicated that she is able to manage her

personal needs and her finances. R. 21. He highlighted that Williams reported that

she is able to shop in stores, read, and sing. R. 21. She does not need reminders to

take her medication, although she will set an alarm to remind her to take medication

at a specific time. R. 526. The ALJ also relied on the psychological examination

conducted by Dr. John Rogers in March 2017. He noted that Dr. Rogers determined

that Williams could repeat five digits forwards and eight digits backwards. R. 21.

The ALJ pointed out that Williams could discuss with Dr. Rogers her activities of

the prior day and recall some general accurate information. R. 21.

The ALJ also found that Williams has only a moderate limitation in interacting

with others. Here, the ALJ again relied on Williams’ function report. R. 21. He

noted that Williams alleged that she tends to stay by herself, but also reported that

she attends church services and participates in the church choir. R. 21. He

highlighted that Williams went to a wedding in February 2017 and sang in front of

fifty guests. R. 21. He discounts Williams’ claim that she has problems getting along

with others by noting that Dr. Rogers found Williams’ conversation and speech to

be normal. R. 20. The ALJ also points to Williams’ records from the Mental Health

Center, which reveal that she participated well in group therapy. R. 21.

With respect to the criteria associated with concentrating, persisting, or

maintaining pace, the ALJ concluded that Williams had only a moderate limitation.

R. 21. Again, the ALJ relied on Williams’ function report. R. 21. He noted that

Williams reported she was able to pay her bills and handle a savings account when

she had a job. R. 21. He noted that Williams reported that she could shop for food

when she received her food stamps. R. 21. He pointed to Williams’ testimony at the

hearing that she could use a microwave, watch television, operate a remote control,

and surf the internet. R. 21. The ALJ also relied on Dr. Rogers’ report here,

highlighting that Dr. Rogers found Williams’ mental activity to be normal and did

not observe any loose associations or tangential or circumstantial thinking. R. 21.

The ALJ pointed to Dr. Rogers’ test results where Williams was able to interpret two

simple proverbs. R. 21. The ALJ concluded by noting that a “review of the record

finds no evidence the claimant has been diagnosed or prescribed medication for

symptoms related to attention deficit hyperactivity disorder.” R. 21. (Williams does

not assert that she suffers from attention deficit hyperactivity disorder.)

The ALJ does not misrepresent the substance of Dr. Rogers’ conclusions. But

he has cherry-picked only those conclusions that do not support a finding of

disability—and ignored the findings that do suggest disability. For example,

Dr. Rogers observed that Williams’ mood appeared anxious. R. 1299. After

administering a Weschler Adult Intelligence Scale, Dr. Rogers concluded that

Williams had a full scale IQ score of 70. R. 1299. Dr. Rogers administered a Boston

Naming Test, on which Williams scored a 41 out of 60. R. 1301. Dr. Rogers reported

that this score was “quite low but consistent with the expectations for someone

functioning at her level of intelligence.” R. 1301. Dr. Rogers recorded that

Williams’ attentional dependent cognitive skills appeared to be impaired, and noted

that it was unclear whether this was due to organic problems or side effects from

medication. R. 1301. He opined that Williams’ immediate memory dependent

cognitive skills were commensurate with her IQ, and that her executive functioning

dependent cognitive skills were mildly impaired. R. 1302. He determined her

executive functioning dependent cognitive skills by administering a Trail Making

Test. R. 1302. On one portion of this test, Williams scored in the normal range, but

she scored in the severely impaired range on the other component of the test.

R. 1302. In an “Implications for Employment” section of his report, Dr. Rogers

concluded that the quality of Williams’ daily activities is below average, that she has

problems interacting with other people, and that her medication side effects impair

her functioning. R. 1302. Dr. Rogers diagnosed Williams with somatic symptom

disorder, bipolar disorder, and unspecified anxiety disorder with posttraumatic stress

features. R. 1303.

Even more problematic than the ALJ’s failure to acknowledge the facts in the

record tending to support a finding of disability is the ALJ’s decision to assign little

weight Dr. Rogers’ opinion. R. 39. The ALJ explained in detail why he assigned

little weight to this opinion. For example, he noted that Williams went to Dr. Rogers

for a neuropsychological examination, but Dr. Rogers is not a neuro-psychologist

and is not board certified in any area. R. 38. The ALJ concluded that Dr. Rogers

was “a PhD and not qualified to offer opinions after review of medical records,” and

he highlighted that Dr. Rogers was a one-time examiner. R. 38 & 39.

The ALJ concluded that “the undersigned assigns very little weight to the

overall opinion of Dr. Rogers particularly on his lack of qualifications to present or

interpret neurological tests.” R. 29. It is within the ALJ’s discretion to discredit the

opinion of Dr. Rogers or to assign little weight to his opinions. But it is error for the

ALJ to have assigned little weight to Dr. Rogers’ opinion overall while

simultaneously relying heavily on his opinions and findings to conclude that

Williams is not disabled. This type of cherry-picking is forbidden. See Dicks v.

Colvin, 2016 WL 4927637, at *4 (M.D. Fla. Sept. 16, 2016) (“However, it is clear

that an ALJ is obligated to consider all relevant medical evidence and may not

cherry-pick facts to support a finding of non-disability while ignoring evidence that

points to a disability finding.”). Essentially, the ALJ “carved out” the helpful parts

of Dr. Rogers’ opinion and relied on these bits when determining that Williams did

not satisfy a listing. See Watkins v. Berryhill, 2018 WL 3615995, at *4 (S.D. Ala.

July 27, 2018) (“Of particular import to this Court, while the ALJ generally accorded

‘significant weight’ to the RFC assessment of non-examining, reviewing physician,

Dr. Kenneth Clonigner, she ‘carved out’ Dr. Cloninger’s ‘findings’ that Plaintiff

could perform manipulative functions only occasionally.”). But where Dr. Rogers’

opinion did not comport with the ALJ’s finding that Williams is not disabled, the

ALJ found Dr. Rogers to be unqualified as a neuropsychologist, and deemed his

entire opinion worthy of little weight. This does not satisfy the ALJ’s burden to

support his opinions with substantial evidence. The court concludes that the ALJ’s

finding that Williams does not meet a Listing is not supported by substantial

evidence.

V. CONCLUSION

For these reasons, the court concludes that the Commissioner’s decision is not

based upon the proper legal standards and substantial evidence. It is therefore

ORDERED that the decision of the Commissioner denying benefits is REVERSED

and this matter is REMANDED to the Administrative Law Judge for the purpose of

issuing a new disability determination consistent with this opinion.

Pursuant to Federal Rule of Civil Procedure 54(d)(2)(B), Plaintiff's attorney

is granted an extension of time in which to file a petition for authorization of

attorney’s fees under 42 U.S.C. § 406(b) until 30 days after receipt of a notice to

award benefits from the Social Security Administration. This order does not extend

the time limits for filing a motion for attorney’s fees under the Equal Access to

Justice Act.

A final judgment will be entered separately.

DONE and ORDERED on February 13, 2020.

( OF FSA

GRAY M.BORDEN

UNITED STATES MAGISTRATE JUDGE

36