Bryant v. Saul

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA NORTHERN DIVISION EUREKA BRYANT, ) Plaintiff, ) ) v. ) CIVIL ACTION NO. 2:19-00560-N ) ANDREW M. SAUL, ) Commissioner of Social Security, ) Defendant. ) MEMORANDUM OPINION AND ORDER Plaintiff Eureka Bryant brought this action under 42 U.S.C. §§ 405 (g) and 1383(c)(3) seeking judicial review of a final decision of the Defendant Commissioner of Social Security denying her applications for a period of disability and disability insurance benefits (collectively, “DIB”) under Title II of the Social Security Act, 42 U.S.C. § 401 , et seq., and supplemental security income (“SSI”) under Title XVI of the Social Security Act, 42 U.S.C. § 1381 , et seq.1 Upon due consideration of the parties’ briefs (Docs. 19, 20, 23) and those portions of the transcript of the administrative record (Docs. 13, 18-1) relevant to the issues raised, the Court finds that the Commissioner’s final decision is due to be REVERSED, and this cause REMANDED for further administrative proceedings.2 1 “Title II of the Social Security Act (Act), 49 Stat. 620 , as amended, provides for the payment of insurance benefits to persons who have contributed to the program and who suffer from a physical or mental disability. 42 U.S.C. § 423 (a)(1)(D) (1982 ed., Supp. III). Title XVI of the Act provides for the payment of disability benefits to indigent persons under the Supplemental Security Income (SSI) program. § 1382(a).” Bowen v. Yuckert, 482 U.S. 137, 140 , 107 S. Ct. 2287 , 96 L. Ed. 2d 119 (1987). 2 With the consent of the parties, the Court has designated the undersigned Magistrate Judge to conduct all proceedings, order the entry of judgment, and conduct all postI. Procedural Background Bryant filed the subject DIB and SSI applications with the Social Security Administration (“SSA”) on October 17, 2014. After they were initially denied, Bryant requested, and on May 11, 2017, received, a hearing on her applications before an Administrative Law Judge (“ALJ”) with the SSA’s Office of Disability Adjudication and Review. On June 2, 2017, the ALJ issued an unfavorable decision on Bryant’s applications, finding her not disabled under the Social Security Act and therefore not entitled to benefits. (See Doc. 13, PageID.204-215). However, Bryant requested review of the ALJ’s unfavorable decision by the Appeals Council for the Office of Disability Adjudication and Review; on May 23, 2018, the Appeals Council granted the request, vacated the unfavorable decision, and remanded the case to the ALJ for further action and the issuance of a new decision, with instructions. (See id., PageID.221-224). A new hearing was held with the ALJ on October 24, 2018; on January 23, 2019, the ALJ again issued an unfavorable decision on Bryant’s applications. (See id., PageID.70-84). The Commissioner’s decision on Bryant’s applications became final when the Appeals Council denied her request for review of the ALJ’s second unfavorable decision on June 26, 2019. (See id., PageID.59-63). Bryant subsequently brought this action under §§ 405(g) and 1383(c)(3) for judicial review of the Commissioner’s final decision. See 42 U.S.C. § 1383 (c)(3) (“The final determination of the judgment proceedings in this civil action, in accordance with 28 U.S.C. § 636 (c), Federal Rule of Civil Procedure 73, and S.D. Ala. GenLR 73. (See Docs. 25, 27). With the Court’s consent, the parties jointly waived the opportunity to present oral argument. (See Docs. 26, 28). Commissioner of Social Security after a hearing [for SSI benefits] shall be subject to judicial review as provided in section 405(g) of this title to the same extent as the Commissioner’s final determinations under section 405 of this title.”); 42 U.S.C. § 405 (g) (“Any individual, after any final decision of the Commissioner of Social Security made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Commissioner of Social Security may allow.”); Ingram v. Comm'r of Soc. Sec. Admin., 496 F.3d 1253, 1262 (11th Cir. 2007) (“The settled law of this Circuit is that a court may review, under sentence four of section 405(g), a denial of review by the Appeals Council.”). II. Standards of Review “In Social Security appeals, [the Court] must determine whether the Commissioner’s decision is supported by substantial evidence and based on proper legal standards.” Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (quotation omitted). The phrase “substantial evidence” is a “term of art” used throughout administrative law to describe how courts are to review agency factfinding. T-Mobile South, LLC v. Roswell, 574 U.S. ––––, ––––, 135 S. Ct. 808, 815 , 190 L. Ed. 2d 679 (2015). Under the substantialevidence standard, a court looks to an existing administrative record and asks whether it contains “sufficien[t] evidence” to support the agency’s factual determinations. Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 , 59 S. Ct. 206 , 83 L. Ed. 126 (1938) (emphasis deleted). And whatever the meaning of “substantial” in other contexts, the threshold for such evidentiary sufficiency is not high. Substantial evidence … is “more than a mere scintilla.” Ibid.; see, e.g., [Richardson v.] Perales, 402 U.S. [389,] 401, 91 S. Ct. 1420 [, 28 L. Ed. 2d 842 (1971)] (internal quotation marks omitted). It means—and means only—“such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison, 305 U.S. at 229 , 59 S. Ct. 206 . See Dickinson v. Zurko, 527 U.S. 150, 153 , 119 S. Ct. 1816 , 144 L. Ed. 2d 143 (1999) (comparing the substantial-evidence standard to the deferential clearly-erroneous standard). Biestek v. Berryhill, -- U.S. --, 139 S. Ct. 1148, 1154 , 203 L. Ed. 2d 504 (2019). In reviewing the Commissioner’s factual findings, a court “ ‘may not decide the facts anew, reweigh the evidence, or substitute our judgment for that of the [Commissioner].’ ” Winschel, 631 F.3d at 1178 (quoting Phillips v. Barnhart, 357 F.3d 1232 , 1240 n.8 (11th Cir. 2004) (alteration in original) (quoting Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983))). “ ‘Even if the evidence preponderates against the [Commissioner]’s factual findings, [the Court] must affirm if the decision reached is supported by substantial evidence.’ ” Ingram, 496 F.3d at 1260 (quoting Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)). See also Hunter v. Soc. Sec. Admin., Comm'r, 808 F.3d 818, 822 (11th Cir. 2015) (“A preponderance of the evidence is not required. In determining whether substantial evidence supports a decision, we give great deference to the ALJ’s factfindings.” (citation omitted)). Put another way, “[u]nder the substantial evidence standard, we cannot look at the evidence presented to [an administrative agency] to determine if interpretations of the evidence other than that made by the [agency] are possible. Rather, we review the evidence that was presented to determine if the findings made by the [agency] were unreasonable. To that end, [judicial] inquiry is highly deferential and we consider only whether there is substantial evidence for the findings made by the [agency], not whether there is substantial evidence for some other finding that could have been, but was not, made. That is, even if the evidence could support multiple conclusions, we must affirm the agency’s decision unless there is no reasonable basis for that decision.” Adefemi v. Ashcroft, 386 F.3d 1022 , 1029 (11th Cir. 2004) (en banc) (citations and quotation omitted).3 “Yet, within this narrowly circumscribed role, [courts] do not act as automatons. [A court] must scrutinize the record as a whole to determine if the decision reached is reasonable and supported by substantial evidence[.]” Bloodsworth, 703 F.2d at 1239 (citations and quotation omitted). See also Owens v. Heckler, 748 F.2d 1511, 1516 (11th Cir. 1984) (per curiam) (“We are neither to conduct a de novo proceeding, nor to rubber stamp the administrative decisions that come before us. Rather, our function is to ensure that the decision was based on a 3 See also Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991) (per curiam) (“The court need not determine whether it would have reached a different result based upon the record” because “[e]ven if we find that the evidence preponderates against the [Commissioner]'s decision, we must affirm if the decision is supported by substantial evidence.”); Edwards v. Sullivan, 937 F.2d 580 , 584 n.3 (11th Cir. 1991) (under the substantial evidence standard, “we do not reverse the [Commissioner] even if this court, sitting as a finder of fact, would have reached a contrary result…”); Hunter, 808 F.3d at 822 (“In light of our deferential review, there is no inconsistency in finding that two successive ALJ decisions are supported by substantial evidence even when those decisions reach opposing conclusions. Faced with the same record, different ALJs could disagree with one another based on their respective credibility determinations and how each weighs the evidence. Both decisions could nonetheless be supported by evidence that reasonable minds would accept as adequate.”); Barron v. Sullivan, 924 F.2d 227, 230 (11th Cir. 1991) (“Substantial evidence may even exist contrary to the findings of the ALJ, and we may have taken a different view of it as a factfinder. Yet, if there is substantially supportive evidence, the findings cannot be overturned.”); Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001), as amended on reh'g (Aug. 9, 2001) (“If the evidence is susceptible to more than one rational interpretation, the court may not substitute its judgment for that of the Commissioner.”). reasonable and consistently applied standard, and was carefully considered in light of all the relevant facts.”).4 4 However, “district court judges are not required to ferret out delectable facts buried in a massive record,” Chavez v. Sec'y Fla. Dep't of Corr., 647 F.3d 1057, 1061 (11th Cir. 2011) ( 28 U.S.C. § 2254 habeas proceedings), and “ ‘[t]here is no burden upon the district court to distill every potential argument that could be made based on the materials before it…’ ” Solutia, Inc. v. McWane, Inc., 672 F.3d 1230, 1239 (11th Cir. 2012) (per curiam) (Fed. R. Civ. P. 56 motion for summary judgment) (quoting Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995) (en banc)) (ellipsis added). The Eleventh Circuit Court of Appeals, whose review of Social Security appeals “is the same as that of the district court[,]” Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996) (per curiam), generally deems waived claims of error not fairly raised in the district court. See Stewart v. Dep’t of Health & Human Servs., 26 F.3d 115 , 11516 (11th Cir. 1994) (“As a general principle, [the court of appeals] will not address an argument that has not been raised in the district court…Because Stewart did not present any of his assertions in the district court, we decline to consider them on appeal.” (applying rule in appeal of judicial review under 42 U.S.C. §§ 405 (g), 1383(c)(3)); Crawford v. Comm'r Of Soc. Sec., 363 F.3d 1155, 1161 (11th Cir. 2004) (per curiam) (same); Hunter v. Comm’r of Soc. Sec., 651 F. App'x 958, 962 (11th Cir. 2016) (per curiam) (unpublished) (same); Cooley v. Comm'r of Soc. Sec., 671 F. App'x 767, 769 (11th Cir. 2016) (per curiam) (unpublished) (“As a general rule, we do not consider arguments that have not been fairly presented to a respective agency or to the district court. See Kelley v. Apfel, 185 F.3d 1211, 1215 (11th Cir. 1999) (treating as waived a challenge to the administrative law judge’s reliance on the testimony of a vocational expert that was ‘not raise[d] . . . before the administrative agency or the district court’).”); In re Pan Am. World Airways, Inc., Maternity Leave Practices & Flight Attendant Weight Program Litig., 905 F.2d 1457 , 1462 (11th Cir. 1990) (“[I]f a party hopes to preserve a claim, argument, theory, or defense for appeal, she must first clearly present it to the district court, that is, in such a way as to afford the district court an opportunity to recognize and rule on it.”); Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999) (applying In re Pan American World Airways in Social Security appeal); Sorter v. Soc. Sec. Admin., Comm'r, 773 F. App'x 1070 , 1073 (11th Cir. 2019) (per curiam) (unpublished) (“Sorter has abandoned on appeal the issue of whether the ALJ adequately considered her testimony regarding the side effects of her pain medication because her initial brief simply mentions the issue without providing any supporting argument. See Singh v. U.S. Att’y Gen., 561 F.3d 1275 , 1278–79 (11th Cir. 2009) (explaining that ‘simply stating that an issue exists, without further argument or discussion, constitutes abandonment of that issue’).”); Figuera v. Comm'r of Soc. Sec., 819 F. App'x 870 , 871 n.1 (11th Cir. 2020) (per curiam) (unpublished) (“Figuera also argues the ALJ failed to properly assess her credibility … However, Figuera did not adequately raise this issue in her brief before the district court. She raised the issue only summarily, without any citations to the record or authority. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014) (noting that a party The “substantial evidence” “standard of review applies only to findings of fact. No similar presumption of validity attaches to the [Commissioner]’s conclusions of law, including determination of the proper standards to be applied in reviewing claims.” MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986) (quotation omitted). Accord, e.g., Wiggins v. Schweiker, 679 F.2d 1387, 1389 (11th Cir. 1982) (“Our standard of review for appeals from the administrative denials of Social Security benefits dictates that ‘(t)he findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive ....’ 42 U.S.C.A. s 405 (g) … As is plain from the statutory language, this deferential standard of review is applicable only to findings of fact made by the Secretary, and it is well established that no similar presumption of validity attaches to the Secretary’s conclusions of law, including determination of the proper standards to be applied in reviewing claims.” (some quotation marks omitted)). This Court “conduct[s] ‘an exacting examination’ of these factors.” Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996) (per curiam) (quoting Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)). “ ‘The [Commissioner]’s failure to apply the correct law or to provide the reviewing court with sufficient reasoning for determining that the proper legal analysis has been conducted mandates reversal.’ ” Ingram, 496 F.3d at 1260 (quoting Cornelius v. Sullivan, 936 F.2d 1143, 1145-46 (11th Cir. 1991)). Accord Keeton v. Dep't of Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994). In sum, courts “review the Commissioner’s factual findings with deference ‘abandons a claim when he either makes only passing references to it or raises it in a perfunctory manner without supporting arguments and authority’). As a result, we do not address the sufficiency of the ALJ's credibility finding.”). and the Commissioner’s legal conclusions with close scrutiny.” Doughty v. Apfel, 245 F.3d 1274 , 1278 (11th Cir. 2001). See also Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005) (per curiam) (“In Social Security appeals, we review de novo the legal principles upon which the Commissioner's decision is based. Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). However, we review the resulting decision only to determine whether it is supported by substantial evidence. Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155 , 1158–59 (11th Cir. 2004).”). Moreover, an ALJ’s decision must “state with at least some measure of clarity the grounds for [the] decision.” Owens, 748 F.2d at 1516 ; Winschel, 631 F.3d at 1179 . A court cannot “affirm simply because some rationale might have supported the [Commissioner]’ conclusion[,]” as “[s]uch an approach would not advance the ends of reasoned decision making.” Owens, 748 F.2d at 1516 . Rather, “an agency’s order must be upheld, if at all, on the same basis articulated in the order by the agency itself.” Fed. Power Comm'n v. Texaco Inc., 417 U.S. 380, 397 , 94 S. Ct. 2315 , 41 L. Ed. 2d 141 (1974) (quotation omitted). See also Newton v. Apfel, 209 F.3d 448, 455 (5th Cir. 2000) (“The ALJ’s decision must stand or fall with the reasons set forth in the ALJ’s decision, as adopted by the Appeals Council.”); Nance v. Soc. Sec. Admin., Comm'r, 781 F. App’x 912 , 921 (11th Cir. 2019) (per curiam) (unpublished)5 (“Agency actions … must be upheld on the same bases articulated in the agency's order.” (citing Texaco Inc., 417 U.S. at 397 , and Newton, 209 F.3d at 455 )). 5 In this circuit, “[u]npublished opinions are not considered binding precedent, but they may be cited as persuasive authority.” 11th Cir. R. 36-2. See also Henry v. Comm'r of Soc. Sec., 802 F.3d 1264 , 1267 n.1 (11th Cir. 2015) (per curiam) (“Cases printed in the Federal Appendix are cited as persuasive authority.”). Eligibility for DIB and SSI requires a showing that the claimant is under a disability, 42 U.S.C. §§ 423 (a)(1)(E), 1382(a)(1)-(2), which means that the claimant is unable “to engage in any substantial gainful activity by reason of a medically determinable physical or mental impairment ... which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §§ 423 (d)(1)(A), 1382c(a)(3)(A). The Social Security Regulations outline a five-step, sequential evaluation process used to determine whether a claimant is disabled: (1) whether the claimant is currently engaged in substantial gainful activity; (2) whether the claimant has a severe impairment or combination of impairments; (3) whether the impairment meets or equals the severity of the specified impairments in the Listing of Impairments; (4) based on a residual functional capacity (“RFC”) assessment, whether the claimant can perform any of his or her past relevant work despite the impairment; and (5) whether there are significant numbers of jobs in the national economy that the claimant can perform given the claimant's RFC, age, education, and work experience. Winschel, 631 F.3d at 1178 (citing 20 C.F.R. §§ 404.1520 (a)(4)(i)-(v), 416.920(a)(4)(i)- (v); Phillips, 357 F.3d at 1237-39 ).6 “These regulations place a very heavy burden on the claimant to demonstrate both a qualifying disability and an inability to perform past relevant work.” Moore, 405 F.3d at 1211 (citing Spencer v. Heckler, 765 F.2d 1090, 1093 (11th Cir. 1985)). “In determining whether the claimant has satisfied this initial burden, the examiner must consider four factors: (1) objective medical facts or clinical findings; (2) the diagnoses of examining physicians; (3) evidence of pain; and (4) the claimant’s age, education, and work history.” Jones v. Bowen, 810 F.2d 1001 , 1005 6 The Court will hereinafter use “Step One,” “Step Two,” etc. when referencing individual steps of this five-step sequential evaluation. (11th Cir. 1986) (per curiam) (citing Tieniber v. Heckler, 720 F.2d 1251, 1253 (11th Cir. 1983) (per curiam)). “These factors must be considered both singly and in combination. Presence or absence of a single factor is not, in itself, conclusive.” Bloodsworth, 703 F.2d at 1240 (citations omitted). If, in Steps One through Four of the five-step evaluation, a claimant proves that he or she has a qualifying disability and cannot do his or her past relevant work, it then becomes the Commissioner’s burden, at Step Five, to prove that the claimant is capable—given his or her age, education, and work history—of engaging in another kind of substantial gainful employment that exists in the national economy. Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999); Sryock v. Heckler, 764 F.2d 834, 836 (11th Cir. 1985). Although the “claimant bears the burden of demonstrating the inability to return to [his or] her past relevant work, the Commissioner of Social Security has an obligation to develop a full and fair record.” Shnorr v. Bowen, 816 F.2d 578, 581 (11th Cir. 1987). See also Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003) (per curiam) (“It is well-established that the ALJ has a basic duty to develop a full and fair record. Nevertheless, the claimant bears the burden of proving that he is disabled, and, consequently, he is responsible for producing evidence in support of his claim.” (citations omitted)). “This is an onerous task, as the ALJ must scrupulously and conscientiously probe into, inquire of, and explore for all relevant facts. In determining whether a claimant is disabled, the ALJ must consider the evidence as a whole.” Henry v. Comm'r of Soc. Sec., 802 F.3d 1264, 1267 (11th Cir. 2015) (per curiam) (citation and quotation omitted). If a court determines that the Commissioner reached his decision “by focusing upon one aspect of the evidence and ignoring other parts of the record[, i]n such circumstances [the court] cannot properly find that the administrative decision is supported by substantial evidence. It is not enough to discover a piece of evidence which supports that decision, but to disregard other contrary evidence.” McCruter v. Bowen, 791 F.2d 1544, 1548 (11th Cir. 1986). Nevertheless, “ ‘there is no rigid requirement that the ALJ specifically refer to every piece of evidence in his decision, so long as the ALJ’s decision ... is not a broad rejection which is not enough to enable [a reviewing court] to conclude that the ALJ considered [the claimant's] medical condition as a whole.’ ” Mitchell v. Comm'r, Soc. Sec. Admin., 771 F.3d 780, 782 (11th Cir. 2014) (quoting Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005) (per curiam) (quotation and brackets omitted)). When, as here, the ALJ denies benefits and the Appeals Council denies review of that decision, the Court “review[s] the ALJ’s decision as the Commissioner’s final decision.” Doughty, 245 F.3d at 1278. But “when a claimant properly presents new evidence to the Appeals Council, a reviewing court must consider whether that new evidence renders the denial of benefits erroneous.” Ingram, 496 F.3d at 1262 . Nevertheless, “when the [Appeals Council] has denied review, [the Court] will look only to the evidence actually presented to the ALJ in determining whether the ALJ’s decision is supported by substantial evidence.” Falge v. Apfel, 150 F.3d 1320, 1323 (11th Cir. 1998). III. Summary of the ALJ’s Decision At Step One, the ALJ determined that Bryant met the applicable insured status requirements through March 31, 2019, and that she had not engaged in substantial gainful activity since the alleged disability onset date of October 6, 2014.7 (Doc. 13, PageID.76). At Step Two,8 the ALJ determined that Bryant had the following severe impairments: obesity, obstructive sleep apnea, status post left carpal tunnel release and ulnar nerve decompression, depression, anxiety, and Sjogren’s Syndrome. (Doc. 13, PageID.76-77). At Step Three,9 the ALJ found that Bryant did not have an impairment or combination of impairments that met or equaled the severity of a specified impairment in Appendix 1 of the Listing of Impairments, 20 C.F.R. § 404 , Subpt. P, App. 1. (Doc. 13, PageID.77-78). 7 “For SSI claims, a claimant becomes eligible in the first month where she is both disabled and has an SSI application on file. For DIB claims, a claimant is eligible for benefits where she demonstrates disability on or before the last date for which she were insured.” Moore, 405 F.3d at 1211 (citation omitted). 8 “The severity regulation increases the efficiency and reliability of the evaluation process by identifying at an early stage those claimants whose medical impairments are so slight that it is unlikely they would be found to be disabled even if their age, education, and experience were taken into account.” Yuckert, 482 U.S. at 153 . See also Schink v. Comm'r of Soc. Sec., 935 F.3d 1245, 1265 (11th Cir. 2019) (per curiam) (Step Two “is a ‘threshold inquiry’ and ‘allows only claims based on the most trivial impairments to be rejected.’ ” (quoting McDaniel v. Bowen, 800 F.2d 1026, 1031 (11th Cir. 1986)). “[A]n ‘impairment is not severe only if the abnormality is so slight and its effect so minimal that it would clearly not be expected to interfere with the individual's ability to work, irrespective of age, education or work experience.’ A claimant’s burden to establish a severe impairment at step two is only ‘mild.’ ” Schink, 935 F.3d at 1265 (citation omitted) (quoting McDaniel, 800 F.2d at 1031 ). 9 Conversely to Step Two, Step Three “identif[ies] those claimants whose medical impairments are so severe that it is likely they would be found disabled regardless of their vocational background.” Yuckert, 482 U.S. at 153 . At Step Four,10 the ALJ determined that Bryant had the residual functional capacity (RFC) “to perform medium work as defined in 20 CFR 404.1567(c) and 416.967(c)[11] except [Bryant] can perform no more than frequent pushing and 10 At Step Four, the ALJ must assess: (1) the claimant's residual functional capacity (“RFC”); and (2) the claimant's ability to return to her past relevant work. 20 C.F.R. § 404.1520 (a)(4)(iv). As for the claimant's RFC, the regulations define RFC as that which an individual is still able to do despite the limitations caused by his or her impairments. 20 C.F.R. § 404.1545 (a). Moreover, the ALJ will “assess and make a finding about [the claimant's] residual functional capacity based on all the relevant medical and other evidence” in the case. 20 C.F.R. § 404.1520 (e). Furthermore, the RFC determination is used both to determine whether the claimant: (1) can return to her past relevant work under the fourth step; and (2) can adjust to other work under the fifth step…20 C.F.R. § 404.1520(e). If the claimant can return to her past relevant work, the ALJ will conclude that the claimant is not disabled. 20 C.F.R. § 404.1520 (a)(4)(iv) & (f). If the claimant cannot return to her past relevant work, the ALJ moves on to step five. In determining whether [a claimant] can return to her past relevant work, the ALJ must determine the claimant's RFC using all relevant medical and other evidence in the case. 20 C.F.R. § 404.1520 (e). That is, the ALJ must determine if the claimant is limited to a particular work level. See 20 C.F.R. § 404.1567 . Once the ALJ assesses the claimant’s RFC and determines that the claimant cannot return to her prior relevant work, the ALJ moves on to the fifth, and final, step. Phillips, 357 F.3d at 1238-39 (footnote omitted). 11 “To determine the physical exertion requirements of different types of employment in the national economy, the Commissioner classifies jobs as sedentary, light, medium, heavy, and very heavy. These terms are all defined in the regulations … Each classification … has its own set of criteria.” Phillips, 357 F.3d at 1239 n.4. The criteria for “medium” work are as follows: Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds. If someone can do medium work, we determine that he or she can also do sedentary and light work. pulling with arm controls, and is precluded from climbing any stairs, ladders, ropes, or scaffolds[;] is also unable to operate any hazardous machinery and must avoid excessive vibration[;] is also precluded from working around unprotected heights or hazardous machinery[;] can tolerate no commercial driving and cannot work around any large body of water[;] can occasionally interact with the general public and coworkers, provided that interaction is non-confrontational[; and] can be around coworkers throughout the workday but can only tolerate occasional interaction.” (Doc. 13, PageID.78-82). Based on the RFC, the ALJ determined that Bryant was unable to perform any past relevant work. (Id., PageID.82). At Step Five, after considering testimony from a vocational expert,12 the ALJ found that there existed a significant number of jobs in the national economy that Bryant could perform given her RFC, age, education, and work experience. (Doc. 13, PageID.82-83). Thus, the ALJ found that Bryant was not disabled under the Social Security Act during the adjudicatory period relevant to her applications. (Id., PageID.84). 20 C.F.R. §§ 404.1567 (c), 416.967(c). 12 “[T]he ALJ may determine whether the claimant has the ability to adjust to other work in the national economy … by the use of a vocational expert. A vocational expert is an expert on the kinds of jobs an individual can perform based on his or her capacity and impairments. When the ALJ uses a vocational expert, the ALJ will pose hypothetical question(s) to the vocational expert to establish whether someone with the limitations that the ALJ has previously determined that the claimant has will be able to secure employment in the national economy.” Phillips, 357 F.3d at 1240 . IV. Analysis a. Migraines Bryant claims that the ALJ erred by failing to find her migraines as being severe impairment at Step Two.13 The undersigned disagrees. An impairment must first be found “medically determinable” before an ALJ must determine whether that impairment is severe. See 20 C.F.R. §§ 404.1521 , 416.921 (“After we establish that you have a medically determinable impairment(s), then we determine whether your impairment(s) is severe.”). To be found “medically determinable,” an impairment “must result from anatomical, physiological, or psychological abnormalities that can be shown by medically acceptable clinical and laboratory diagnostic techniques. Therefore, a physical or mental impairment must be established by objective medical evidence from an acceptable medical source.” Id. The ALJ cannot rely on a claimant’s “statement of symptoms, a diagnosis, or a medical opinion to establish the existence of an impairment(s).” Id. At Step Two, in addition to determining Bryant’s severe impairments, see supra, the ALJ also found that the record “supports the existence of nocturnal seizure-like activity and vitamin D deficiency[,]” but that those impairments were both not severe. (Doc. 13, PageID.76). By omitting mention of migraines at Step Two entirely, the ALJ therefore implicitly found that migraines were not a medically determinable impairment for Bryant. Bryant has not shown that this was error, as the only record evidence she cites in support of her claims of migraines are 13 The undersigned addresses Bryant’s claims of error in a different order than how she presents them in her brief. either her own self-reported symptoms or conclusory diagnoses, which are insufficient to establish a medically determinable impairment. See 20 C.F.R. §§ 404.1521 , 416.921.14 Moreover, many of the notes she cites mention “headaches” rather than migraines. She points to no evidence of “medically acceptable clinical and laboratory diagnostic techniques” establishing migraines, and Dr. Todderoff, a medical expert who reviewed the record medical evidence and testified at the second ALJ hearing, opined that Bryant did “not have migraine disease,” only “headaches.” (Doc. 18-1, PageID.871). Accordingly, because substantial evidence supports the ALJ’s decision to find that Bryant did not have a “medical determinable impairment” of migraines, the ALJ did not err in failing to find it to be a severe impairment. b. Medical Opinions Bryant also claims the ALJ did not state sufficient reasons, supported by substantial evidence, for rejecting the medical opinions of her treating physicians, and that the ALJ also erred in giving greater weight to the medical opinions of two consultative examining physicians and the non-examining medical expert that testified at the second ALJ hearing. Upon careful consideration, the undersigned agrees that, at the very least, the ALJ did not articulate sufficient cause to reject the opinion of treating physician Perry Timberlake, M.D. “ ‘Medical opinions are statements from physicians and psychologists or other 14 Bryant herself classifies these record citations as showing diagnoses of migraines and treatment for same. (See Doc. 20, PageID.898 (“She was clearly and consistently diagnosed with migraines and was treated for same throughout the records.”)). acceptable medical sources that reflect judgments about the nature and severity of [the claimant’s] impairment(s), including [the claimant’s] symptoms, diagnosis and prognosis, what [the claimant] can still do despite impairment(s), and [the claimant’s] physical or mental restrictions.’ ” Winschel, 631 F.3d at 1178 -79 (quoting 20 C.F.R. §§ 404.1527 (a)(2), 416.927(a)(2)). “There are three tiers of medical opinion sources: (1) treating physicians; (2) nontreating, examining physicians; and (3) nontreating, nonexamining physicians.” Himes v. Comm'r of Soc. Sec., 585 F. App'x 758, 762 (11th Cir. 2014) (per curiam) (unpublished) (citing 20 C.F.R. §§ 404.1527 (c)(1)-(2), 416.927(c)(1)-(2)). “In assessing medical opinions, the ALJ must consider a number of factors in determining how much weight to give to each medical opinion, including (1) whether the physician has examined the claimant; (2) the length, nature, and extent of a treating physician's relationship with the claimant; (3) the medical evidence and explanation supporting the physician’s opinion; (4) how consistent the physician’s opinion is with the record as a whole; and (5) the physician’s specialization. These factors apply to both examining and nonexamining physicians.” Eyre v. Comm'r, Soc. Sec. Admin., 586 F. App'x 521, 523 (11th Cir. 2014) (per curiam) (unpublished) (internal citations and quotation marks omitted) (citing 20 C.F.R. §§ 404.1527 (c) & (e), 416.927(c) & (e)). While “the ALJ is not required to explicitly address each of those factors[,]” Lawton v. Comm'r of Soc. Sec., 431 F. App’x 830, 833 (11th Cir. 2011) (per curiam) (unpublished); accord Brock v. Comm'r, Soc. Sec. Admin., 758 F. App'x 745 , 751 (11th Cir. 2018) (per curiam) (unpublished), “the ALJ must state with particularity the weight given to different medical opinions and the reasons therefor.” Winschel, 631 F.3d at 1179 .15 The opinions of non-treating physicians “are not entitled to deference...” McSwain v. Bowen, 814 F.2d 617, 619 (11th Cir. 1987) (per curiam). Accord, e.g., Crawford, 363 F.3d at 1160 (“The ALJ correctly found that, because Hartig examined Crawford on only one occasion, her opinion was not entitled to great weight.”). On the other hand, “[t]he opinion of a treating physician…‘must be given substantial or considerable weight unless “good cause” is shown to the contrary.’ ” Phillips, 357 F.3d at 1240 (quoting Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997)). “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.’ With good cause, an ALJ may disregard a treating physician’s opinion, but he ‘must clearly articulate [the] reasons’ for doing so.” Winschel, 631 F.3d at 1179 (quoting Phillips, 357 F.3d at 1240-41 ) (internal citation omitted). See also, e.g., 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. Further, the [Commissioner] may reject the opinion of any physician when the evidence supports a contrary conclusion.” (citation omitted)); Edwards v. Sullivan, 937 F.2d 580 , 583 15 On January 18, 2017, the SSA substantially revised the regulations governing how the Commissioner considers medical evidence, including medical opinions. See 82 Fed. Reg. 5844 (Jan. 18, 2017); 82 Fed. Reg. 15,132 (Mar. 27, 2017). However, those revisions apply only to claims filed on or after March 27, 2017, and are therefore inapplicable to the subject applications. Compare 20 C.F.R. §§ 404 .1520c, 416.920c (applicable to claims filed on or after on or after March 27, 2017) with 20 C.F.R. §§ 404.1527 , 416.927 (applicable to claims filed before March 27, 2017). (11th Cir. 1991) (“The treating physician’s report may be discounted when it is not accompanied by objective medical evidence or is wholly conclusory.”). Failure to clearly articulate the reasons for giving less than substantial or considerable weight to the opinion of a treating physician “constitutes reversible error.” Lewis, 125 F.3d at 1440 . Moreover, an ALJ “may not arbitrarily reject uncontroverted medical testimony[,]” Walden v. Schweiker, 672 F.2d 835, 839 (11th Cir. 1982), or “substitute[] his judgment of the claimant’s condition for that of the medical and vocational experts.” Freeman v. Schweiker, 681 F.2d 727, 731 (11th Cir. 1982) (per curiam). “But ALJs are permitted, and in fact required, to use judgment in weighing competing evidence and reaching a final determination as to whether an applicant is disabled[,]” McCullars v. Comm'r, Soc. Sec. Admin., 825 F. App'x 685 , 691 n.1 (11th Cir. 2020) (per curiam) (unpublished), and “if an ALJ articulates specific reasons for declining to give the opinion of a treating physician controlling weight, and those reasons are supported by substantial evidence, there is no reversible error.” Horowitz v. Comm'r of Soc. Sec., 688 F. App'x 855, 861 (11th Cir. 2017) (per curiam) (unpublished) (citing Moore, 405 F.3d at 1212 ). Accord Huigens v. Soc. Sec. Admin., Comm’r, 718 F. App’x 841 , 844 (11th Cir. 2017) (per curiam) (unpublished). A court “will not second guess the ALJ about the weight the treating physician’s opinion deserves so long as he articulates a specific justification for it.” Hunter v. Soc. Sec. Admin., Comm’r, 808 F.3d 818, 823 (11th Cir. 2015) (citing Moore, 405 F.3d at 1212 ). Here, the ALJ stated that she assigned “little weight to the opinions found in the questionnaires completed by Perry Timberlake, M.D. and Richard Jones, M.D. that find a debilitating degree of limitation not supported by the weight of the evidence as a whole (Exhibits 12F and 15F)[,]” because “both questionnaires are found to be internally inconsistent—meaning they are not consistent with those treating physicians’ actual treatment records—and inconsistent with the record when considered as a whole.” (Doc. 13, PageID.82).16 Dr. Jones treated Bryant at the Clinic for Rheumatic Diseases, while Dr. Timberlake treated her at the Hale County Hospital Clinic. However, while the ALJ specifically and extensively cites and discusses notes from the Clinic for Rheumatic Disease in her decision, the same cannot be said for notes from the Hale County Hospital Clinic. Unlike the Clinic for Rheumatic Disease notes, which are cited multiple times by exhibit numbers, the ALJ never cites to any of the exhibit numbers for the Hale County Hospital Clinic records (Exs. 2F, 8F, 14F, 18F, 21F, 23F). The ALJ also never states she is discussing records from “the Hale County Hospital Clinic” or from “Dr. Timberlake,” nor does she otherwise give any sort of indication from which the undersigned can discern that Dr. Timberlake’s treatment records were actually considered. Because it is not apparent from her decision that the ALJ considered any of the Hale County Hospital Clinic records, the ALJ’s finding that Dr. Timberlake’s opinion was inconsistent with his own treatment notes and with 16 A court “cannot engage in … post hoc rationalization to justify an ALJ’s decision to reject a medical opinion[,]” Wilson v. Berryhill, No. CV 1:17-00531-N, 2019 WL 384960 , at *6 n.9 (S.D. Ala. Jan. 30, 2019) (collecting cases), and cannot “affirm simply because some rationale might have supported the [Commissioner]’ conclusion[,]” as “[s]uch an approach would not advance the ends of reasoned decision making.” Owens, 748 F.2d at 1516 . Accordingly, the Court considers only the ALJ’s stated reasons for giving less than substantial or considerable weight to Dr. Timberlake’s opinion. the record as a whole cannot be sustained as supported by substantial evidence. See McCruter, 791 F.2d at 1548 (“We are constrained to conclude that the administrative agency here … reached the result that it did by focusing upon one aspect of the evidence and ignoring other parts of the record. In such circumstances we cannot properly find that the administrative decision is supported by substantial evidence. It is not enough to discover a piece of evidence which supports that decision, but to disregard other contrary evidence. The review must take into account and evaluate the record as a whole.”). On this basis, reversible error has been shown. 17 Accordingly, the Commissioner’s final decision denying Bryant’s applications for benefits is due to be REVERSED, and this cause REMANDED to the Commissioner under sentence four of § 405(g) for further administrative proceedings consistent with this decision.18 17 Bryant has also argued reversible error in the ALJ’s consideration of other medical opinions, and has also argued that the RFC is not otherwise supported by substantial evidence. However, reversible error has already been found as to the ALJ’s consideration of Dr. Timberlake’s opinion, and the Commissioner’s resolution of those other issues might change depending on what weight the Commissioner assigns Dr. Timberlake’s opinion on remand. Accordingly, the undersigned declines to address Bryant’s remaining claims of error. This should not hamper effective appellate review of this decision. See Henry, 802 F.3d at 1267 (“Our review is the same as that of the district court, meaning we neither defer to nor consider any errors in the district court's opinion…” (citation and quotation omitted)). The undersigned expresses no view on what weight Dr. Timberlake’s medical opinion should be assigned on remand, as the responsibility for weighing evidence is generally committed to the Commissioner. See Wheeler v. Heckler, 784 F.2d 1073, 1075 (11th Cir. 1986) (per curiam) (“The [Commissioner], and not the court, is charged with the duty to weigh the evidence, to resolve material conflicts in the testimony, and to determine the case accordingly.”). 18 Bryant does not request that this Court reverse with instructions to the V. Conclusion In accordance with the foregoing analysis, it is ORDERED that the Commissioner’s final decision denying Bryant’s October 17, 2014 DIB and SSI applications is REVERSED, and this cause REMANDED to the Commissioner under sentence four of 42 U.S.C. § 405 (g), see Melkonyan v. Sullivan, 501 U.S. 89 (1991), for further proceedings consistent with this decision. This remand under sentence four of § 405(g) makes Bryant a prevailing party for purposes of the Equal Access to Justice Act, 28 U.S.C. § 2412 , see Shalala v. Schaefer, 509 U.S. 292 (1993), and terminates this Court’s jurisdiction over this matter. Under Federal Rule of Civil Procedure 54(d)(2)(B), the Court hereby grants Bryant’s counsel an extension of time in which to file a motion for fees under 42 U.S.C. § 406 (b) until 30 days after the date of receipt of a notice of award of benefits from the SSA, should Ridgeway be awarded benefits on the subject applications following this remand.19 Consistent with 20 C.F.R. § 422.210 (c), “the date of receipt Commissioner that she be found disabled and awarded benefits; regardless, the undersigned is not persuaded that such relief would be appropriate in this procedural posture. Compare Davis v. Shalala, 985 F.2d 528, 534 (11th Cir. 1993) (“Generally, a reversal with remand to the [Commissioner] is warranted where the ALJ has failed to apply the correct legal standards.”), with id. (a court may “remand the case [with] an order awarding disability benefits where the [Commissioner] has already considered the essential evidence and it is clear that the cumulative effect of the evidence establishes disability without any doubt”). See also INS v. Orlando Ventura, 537 U.S. 12, 16 , 123 S. Ct. 353 , 154 L. Ed. 2d 272 (2002) (A court reviewing an agency decision “is not generally empowered to conduct a de novo inquiry into the matter being reviewed and to reach its own conclusions based on such an inquiry. Rather, the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.” (citation and quotations omitted)). 19 See Bergen v. Comm'r of Soc. Sec., 454 F.3d 1273 , 1277 (11th Cir. 2006) (per curiam) (“Fed. R. Civ. P. 54(d)(2) applies to a § 406(b) attorney's fee claim.”); Blitch v. Astrue, of notice … shall be presumed to be 5 days after the date of such notice, unless there is a reasonable showing to the contrary.” If multiple award notices are issued, the time for filing a § 406(b) fee motion shall run from the date of receipt of the latest- dated notice. Final judgment shall issue separately hereafter in accordance with this order and Federal Rule of Civil Procedure 58. DONE and ORDERED this the 29th day of March 2021. /s/ Katherine P. Nelson KATHERINE P. NELSON UNITED STATES MAGISTRATE JUDGE 261 F. App'x 241 , 242 n.1 (11th Cir. 2008) (per curiam) (unpublished) (“In Bergen v. Comm'r of Soc. Sec., 454 F.3d 1273 (11th Cir. 2006), we suggested the best practice for avoiding confusion about the integration of Fed. R. Civ. P. 54(d)(2)(B) into the procedural framework of a fee award under 42 U.S.C. § 406 is for a plaintiff to request and the district court to include in the remand judgment a statement that attorneys fees may be applied for within a specified time after the determination of the plaintiff's past due benefits by the Commission. 454 F.3d at 1278 n.2.”).