KRISTEN L. MIX, Magistrate Judge.
This matter is before the Court
Plaintiff alleges that he became disabled on August 16, 1999, at the age of thirty-two. Tr. 218.
The ALJ determined that Plaintiff had not engaged in substantial gainful activity since May 27, 2008 (the date of Plaintiff's initial application for benefits). Tr. 12. The ALJ found that Plaintiff suffers from the following severe impairments: (1) mild degenerative changes of the lumbar spine; left hand pain with findings of reduced grip strength; a major depressive disorder; an anxiety disorder; a learning disorder; and borderline intellectual functioning. Tr. 12. However, the ALJ also found that these impairments, individually or in combination, do not meet or medically equal "the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926)." Tr. 13. The ALJ next concluded that Plaintiff has the residual functional capacity ("RFC")
Tr. 14. Based on the RFC and the testimony of an impartial vocational expert ("VE"), the ALJ found that Plaintiff was unable to perform any past relevant work but that "there are jobs that exist in significant numbers in the national economy that [Plaintiff] can perform. . . ." Tr. 20-21. Specifically, based on the testimony of the VE, the ALJ concluded that Plaintiff could perform the representative occupations of cleaner, hand packer, and machine packager. Tr. 21. He therefore found Plaintiff not disabled at step five of the sequential evaluation. Tr. 22. The ALJ's decision has become the final decision of the Commissioner for purposes of judicial review. 20 C.F.R. § 416.1481.
Pursuant to the Act:
Barnhart v. Thomas, 540 U.S. 20, 21-22 (2003) (quoting 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B)). Under the applicable legal standard, a claimant is disabled if he or she is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment . . . which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 423(d)(1)(a); see also Wall v. Astrue, 561 F.3d 1048, 1051 (10th Cir. 2009) (quoting 20 C.F.R. § 416.905(a)). The existence of a qualifying disabling impairment must be demonstrated by "medically acceptable clinical and laboratory diagnostic" findings. 42 U.S.C. §§ 423(d)(3), 423(d)(5)(A).
"When a claimant has one or more severe impairments the Social Security [Act] requires the [Commissioner] to consider the combined effects of the impairments in making a disability determination." Campbell v. Bowen, 822 F.2d 1518, 1521 (10th Cir. 1987) (citing 42 U.S.C. § 423(d)(2)(C)). However, the mere existence of a severe impairment or combination of impairments does not require a finding that an individual is disabled within the meaning of the Act. To be disabling, the claimant's condition must be so functionally limiting as to preclude any substantial gainful activity for at least twelve consecutive months. See Kelley v. Chater, 62 F.3d 335, 338 (10th Cir. 1995).
The Court reviews a final decision by the Commissioner by examining the administrative record and determining "whether the [ALJ's] factual findings are supported by substantial evidence in the record and whether the correct legal standards were applied." Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir. 2010). However, the Court "may neither reweigh the evidence nor substitute [its] judgment for that of the agency." Harper v. Colvin, 528 F. App'x 887, 890 (10th Cir. 2013) (quoting Barnett v. Apfel, 231 F.3d 687, 689 (10th Cir. 2000)). In other words, the Court does not reexamine the issues de novo. Sisco v. U.S. Dep't of Health & Human Servs., 10 F.3d 739, 741 (10th Cir. 1993). Thus, even when some evidence could support contrary findings, the Court "may not displace the agency's choice between two fairly conflicting views," even if the Court may have "made a different choice had the matter been before it de novo." Oldham v. Astrue, 509 F.3d 1254, 1257-58 (10th Cir. 2007).
The Social Security Administration uses a five-step framework to determine whether a claimant meets the necessary conditions to receive Social Security benefits. See 20 C.F.R. §§ 404.1520, 416.920. The claimant bears the burden of proof at steps one through four, and if the claimant fails at any of these steps, consideration of any subsequent steps is unnecessary. Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988) ("If a determination can be made at any of the steps that a claimant is or is not disabled, evaluation under a subsequent step is not necessary."). The Commissioner bears the burden of proof at step five. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987).
Step one requires the ALJ to determine whether a claimant is "presently engaged in substantial gainful activity." Wall, 561 F.3d at 1052 (quoting Allen v. Barnhart, 357 F.3d 1140, 1142 (10th Cir. 2004)). If not, the ALJ considers at step two whether a claimant has "a medically severe impairment or impairments." Id. "An impairment is severe under the applicable regulations if it significantly limits a claimant's physical or mental ability to perform basic work activities." Wall, 561 F.3d at 1052 (citing 20 C.F.R. § 404.1521). Next, at step three, the ALJ considers whether a claimant's medically severe impairments are equivalent to a condition "listed in the appendix of the relevant disability regulation," i.e., the "Listings." Wall, 561 F.3d at 1052 (quoting Allen, 357 F.3d at 1142). "If a claimant's impairments are not equivalent to a listed impairment, the ALJ must consider, at step four, whether a claimant's impairments prevent [him] from performing [his] past relevant work." Wall, 561 F.3d at 1052 (citing Allen, 357 F.3d at 1142). "Even if a claimant is so impaired, the agency considers, at step five, whether [he] possesses the sufficient [RFC] to perform other work in the national economy." Id.
An ALJ must consider all evidence and explain why he or she finds a claimant not disabled. Clifton v. Chater, 79 F.3d 1007, 1009 (10th Cir. 1996). However, the ALJ need not specifically "reference everything in the administrative record." Wilson, 602 F.3d at 1148. "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. at 1140 (internal quotation marks omitted). "It requires more than a scintilla, but less than a preponderance." Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007). A decision by the ALJ is not based on substantial evidence "if it is overwhelmed by other evidence in the record . . . ." Grogan v. Barnhart, 399 F.3d 1257, 1261-62 (10th Cir. 2005). In other words, the Court's determination of whether the ALJ has supported his or her ruling with substantial evidence "must be based upon the record taken as a whole." Washington v. Shalala, 37 F.3d 1437, 1439 (10th Cir. 1994). Further, evidence is not substantial if it "constitutes mere conclusion." Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). In addition, "if the ALJ failed to apply the correct legal test, there is a ground for reversal apart from a lack of substantial evidence." Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993).
Plaintiff requests judicial review of the ALJ's decision denying him supplemental security income. Brief [#17] at 12. Specifically, Plaintiff argues that: (1) the ALJ's definition of the term "moderate" is unsupported by substantial evidence, (2) the ALJ improperly rejected the opinions of Carlos Rodriguez, Ph.D. ("Dr. Rodriguez") and Richard Madsen, Ph.D. ("Dr. Madsen"), and (3) the ALJ failed to account for Plaintiff's alleged reading and writing limitations. Id. at 18. The Court addresses each argument in turn.
As Plaintiff explains, as part of the RFC determination, the ALJ "made a finding that [P]laintiff is moderately impaired with regard to social interactions and in [his] ability to maintain attention and concentration for extended periods of time." Brief [#17] at 22. Specifically, the ALJ explained
Tr. 20. Plaintiff argues that the ALJ came up with the number "15%" "out of thin air" and that this number is not supported by substantial evidence in the record. Brief [#17] at 23. In short, as Plaintiff clarifies in his Reply, Plaintiff's argument is that the ALJ did not link his conclusion to evidence from the record. Reply [#21] at 6 ("It is unclear from the decision what evidence formed the basis of the ALJ's conclusion that [P]laintiff would have difficulties for 15% of the workday, but no less or no more.").
The ALJ "is charged with determining a claimant's RFC from the medical records." Chapo v. Astrue, 682 F.3d 1285, 1289 (10th Cir. 2012). An RFC is "an administrative assessment of the extent to which an individual's medically determinable impairment(s), including any related symptoms such as pain, may cause physical or mental limitations or restrictions that may affect his or her capacity to do work related physical or mental activities." SSR 96-8p, 1996 WL 374184 at * 2. It is assessed "based on all of the relevant evidence in the case record, including information about the individual's symptoms and any `medical source statements.'" Id. "[T]here is no requirement in the regulations for a direct correspondence between an RFC finding and a specific medical opinion on the functional capacity in question." Chapo, 682 F.3d at 1288.
Recognizing that "a moderate impairment is not the same as no impairment at all," Haga v. Astrue, 482 F.3d 1205, 1208 (10th Cir.2007), and "supports the conclusion that the individual's capacity to perform the activity is impaired," the Tenth Circuit has required that such limitations be accounted for with precision in the ultimate determination of the claimant's residual functional capacity. Jaramillo v. Colvin, 576 F.App'x. 870, 876 (10th Cir. 2014) (internal quotation marks and citation omitted). This requirement in turn "demands that the ALJ express plaintiff's moderate impairments in mental functioning `in terms of work-related functions' or `[w]ork-related mental activities.'" Id. at 876 (quoting Social Security Ruling 96-8p, 1996 WL 374184 at *6 (SSA July 2, 1996)). A residual functional capacity expressed as being limited only to unskilled work requiring simple, repetitive tasks is insufficient to meet these requirements. Id.
In this case, the ALJ explained what the term "moderate" meant in terms of Plaintiff's RFC in compliance with the Tenth Circuit case law explained above. As the ALJ explained, in the RFC "moderate" "mean[s] [Plaintiff] would have more than mild restrictions in these particular functions, such that he would be subject to difficulties for up to 15% of the workday, but he would retain the capacity to perform those functions." Tr. 20. Contrary to Plaintiff's argument, this definition means that Plaintiff "would be subject to difficulties," Tr. 20, not that Plaintiff would be off task or unable to perform the job at hand. See Stephens v. Colvin, 2015 WL 3430586, at *6 (N.D. Cal. May 28, 2015) ("Put differently, being `off task' and an inability to maintain `concentration, persistence or pace' are not the same thing. A person could be focused on the task at hand for an entire hour, for example, and complete only 85% of a project due to reduced pace; this does necessarily mean that the person was `off task' for 15% of the time."). Further, contrary to Plaintiff's assertion, the ALJ based the RFC on the evidence in the record. In reaching the RFC, the ALJ carefully summarized the evidence in the record, including both the physical and mental limitations alleged by Plaintiff; discussed the credibility of the evidence; and explicitly explained his conclusions regarding Plaintiff's mental limitations. Tr. 14-20. For example, with regard to the mental limitations taken into account in the RFC, the ALJ summarized various part of the record and stated:
Tr. 16. The last sentence makes clear that this is the ALJ's basis for finding "some degree of limitations" and he later states that this is a moderate limitation defined "to mean [Plaintiff] would have more than mild restrictions in these particular functions, such that he would be subject to difficulties for up to 15% of the workday, but he would retain the capacity to perform those functions." Tr. 20. In addition, directly before defining "moderate," the ALJ states that "[t]he variable mental status testing results and complaints of anxiety are the basis for the moderate degree of impairment in the ability to maintain attention and concentration for extended periods of time—conclusions which are consistent with the most severe limitations imposed by any State agency psychological expert []." Tr. 20. Based on all of the above information provided by the ALJ in reaching his RFC, including the definition of "moderate," the Court concludes that the RFC is supported by substantial evidence in the record. Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir. 2010) ("Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." (internal quotation marks omitted)). As a result, the Court concludes that the ALJ has not committed reversible error in his definition of the term "moderate."
Plaintiff argues that the ALJ failed to adequately weigh the opinions of Dr. Rodriguez and Dr. Madsen. Brief [#17] at 25-38.
With regard to Dr. Rodriguez, Plaintiff maintains that the ALJ rejected this opinion "because of inconsistencies between his narrative report and testing results, and [P]laintiff's lack of treatment." Id. at 26-27. Plaintiff argues that "[n]either of these is a valid reason to reject the examining physician's opinion. Id. at 27.
As an initial matter, the Court notes that the ALJ concluded that Plaintiff "has not established an ongoing treatment relationship with this doctor, he merely sees him when he needs to obtain documentation of some type of ongoing disability for State assistance, or at the request of his attorney." Tr. 19.
Here, the ALJ specifically noted that there were "significant inconsistencies between the narrative and test results when compared to the statement of limitations, the lack of intervening records, and the absence of even minimal medical management for allegedly severe symptoms of anxiety and depression." Tr. 19. The Court "will not reweigh the evidence or substitute [its] judgment for the Commissioner's . . . [and] may not displace the agency's choice between two fairly conflicting views, even though the court would justifiably have made a different choice." Adams, 659 F.3d at 1301. However, the Court notes that the reasons given for the ALJ's finding of "significant inconsistencies" are supported by the record.
For example, Dr. Rodriguez met with Plaintiff once in 2011 and twice in 2012 with no intervening interviews. Tr. 499. In August 2011, Dr. Rodriguez reported that Plaintiff "talked to the examiner freely and rapport was easily established." Tr. 485. Dr. Rodriguez further reported that Plaintiff "did not display any unusual or bizarre behaviors during this evaluation. His attitude towards this evaluation is appropriate and he is cooperative." Tr. 485-86. Again, in August 2012, Dr. Rodriguez used the exact same language to describe their interaction. Tr. 493-94. However, on the Residual Functional Capacity Evaluation from completed by Dr. Rodriguez after the August 2011 examination, he noted that Plaintiff had "marked
Plaintiff also argues that it was improper for the ALJ to "reject Dr. Rodriguez's opinion because it was inconsistent with [P]laintiff's lack of treatment." Brief [#17] at 30. As noted above, the ALJ "accord[ed] no weight to Dr. Rodriguez's assessments" "[g]iven that there were "significant inconsistencies between the narrative and test results when compared to the statement of limitations, the lack of intervening records, and the absence of even minimal medical management for allegedly severe symptoms of anxiety and depression." Tr. 19. In challenging the last portion of the ALJ's conclusion regarding Dr. Rodriguez's opinion, Plaintiff cites to Thompson v. Sullivan, 987 F.2d 1482, 1490 (10th Cir. 1993), which held that
987 F.2d 1482, 1490 (internal quotation marks and citations omitted). Thompson focused on the ALJ's credibility determination of the claimant, not the weight afforded to an expert opinion. Id. Here, in contrast, the ALJ made clear that he "accords no weight to Dr. Rodriguez's assessments" based on several considerations, including "the absence of even minimal medical management for allegedly severe symptoms of anxiety and depression." Tr. 19. This does not implicate Thompson. Plaintiff offers no argument that it was improper for the ALJ to reject Dr. Rodriguez's opinion for this reason, among the other reasons provided. As a result, the Court concludes that the ALJ has not committed reversible error with respect to his treatment of Dr. Rodriguez's opinions. Glenn v. Shalala, 21 F.3d 983, 988 (10th Cir. 1994) (explaining that the Court must affirm if, considering the evidence as a whole, there is sufficient evidence which a reasonable mind might accept as adequate to support a conclusion).
With regard to Dr. Madsen's opinion, Plaintiff argues that "[t]he ALJ essentially rejected Dr. Madsen's opinion because he found it `vague and not sufficiently defined.'" Brief [#17] at 32. Plaintiff argues that "[t]he ALJ cannot simply reject the opinion of his own consultative examiner because his opinion is vague or lacks sufficient definition. Rather, the ALJ has an obligation to properly develop the record by recontacting Dr. Madsen." Id. The ALJ did conclude that Dr. Madsen's analysis was "vague and [was] not sufficiently defined for [the ALJ] to determine functional capacity." Tr. 18. As a result, the ALJ afforded "little weight" to the opinion "and only to the extent [Dr. Madsen] indicates there would be some declination of function in the areas of focus, concentration and social interaction, which are supported by the claimant's statements to consulting sources and his variable performance on mental status testing (Exhs. B6F; B12F; B19F; B24F)." Tr. 18-19.
Pursuant to 20 C.F.R. § 416.919p, the Commissioner reviews the report of a consultative examination to determine whether specific information has been furnished. 20 C.F.R. § 416.919p(a). If the report is "inadequate or incomplete," the Commissioner will contact the medical source who performed the consultative examination, give an explanation of the agency's evidentiary needs, and ask the medical source to furnish the missing information or prepare a revised report. Id. § 416.919p(b). A complete consultative examination report includes the following: (1) the claimant's major or chief complaints; (2) a detailed description of the claimant's history of the major complaints; (3) a description of pertinent positive and negative detailed findings based on the history, examination, and lab tests related to the major complaints and any other abnormalities or lack thereof found during the exam or lab tests; (4) the results of the lab tests; (5) the diagnosis and prognosis for the claimant's impairment; (6) a statement about what the claimant can still do despite the impairments; and (7) an explanation or comment by the medical source on the claimant's major complaints. Id. § 416.919n(c)(1)-(7). According to the applicable regulations, the ALJ must only request a revised medical opinion if the original one is "inadequate or incomplete." 20 C.F.R. § 416.919p(b). Here, the ALJ did not find Dr. Madsen's opinion to be either inadequate nor incomplete, he simply gave it less weight, while still relying on certain aspects of it, because he found it "vague" and "not sufficiently defined." Tr. 18. Although Plaintiff disagrees with the ALJ's decision to give less weight to Dr. Madsen's opinion, the ALJ was permitted to do so. See Chavez v. Colvin, 2015 WL 1733767 at *14 (N.D. Ind. Apr. 15, 2015) ("The ALJ found Dr. Shamberg's statements regarding Chavez's abilities despite her impairments vague and non-specific. Because a report is not rendered incomplete if it is missing a statement regarding the claimant's abilities despite her impairments, the ALJ was not required to contact Dr. Shamberg to revise his report."); see also Haddock v. Astrue, No. 09-cv-01922-LTB, 2010 WL 2197403, at *6 (D. Colo. May 28, 2010) (remanding on other grounds and noting that "the ALJ did not err in failing to seek further clarification from Dr. Madsen for his opinions since Dr. Madsen's report was neither incomplete nor inadequate, see 20 C.F.R. § 416.919p(b), but merely inconsistent with other evidence in the record.).
To the extent Plaintiff argues that the ALJ committed legal error by not fully and fairly developing the record because he did not contact Dr. Madsen to obtain an additional report, Plaintiff's argument also fails because, as explained above, Dr. Madsen's report was not found to be "incomplete or inadequate." Although the nonadversarial nature of social security proceedings "imposes a duty on the ALJ `to ensure that an adequate record is developed . . . consistent with the issues raise,'" the ALJ met that duty here. Jimenez v. Astrue, 385 F. App'x 785, 788 (10th Cir. 2010) (quoting Flaherty v. Astrue, 515 F.3d 1067, 1071 (10th Cir. 2007)). Furthermore, in cases such as this one, where Plaintiff was represented by an attorney at the disability hearing, "the ALJ should ordinarily be entitled to rely on the claimant's counsel to structure and present claimant's case in a way that the claimant's claims are adequately explored," and the ALJ "may ordinarily require counsel to identify the issue or issues requiring further development." Hawkins v. Chater, 113 F.3d 1162, 1167 (10th Cir. 1997). In this case there were two hearings held by the ALJ and Plaintiff's counsel made no indication at either hearing that further development of the record was necessary to decide the matter. Tr. 26, 47. In addition, even in the absence of Plaintiff's attorney raising this issue, "`[t]he standard' for determining whether the ALJ fully developed the record `is one of reasonable good judgment.'" Segura v. Barnhart, 148 F. App'x 707, 710 (10th Cir. 2005) (quoting Hawkins v. Chater, 113 F.3d 1162, 1168 (10th Cir. 1997)). The ALJ's "starting place must be the presence of some objective medical evidence in the record suggesting [the] existence of a condition which could have a material impact on the disability decision requiring further investigation." Howard v. Barnhart, 379 F.3d 945, 949 (10th Cir. 2004) (citing Hawkins, 113 F.3d at 1167) (emphasis in Howard). If there is sufficient information to make a disability determination, the record is sufficiently developed. Cowan v. Astrue, 552 F.3d 1182, 1187 (10th Cir. 2008); 20 C.F.R. § 404.1520b. Here, even with a vague report from Dr. Madsen, there is no argument from Plaintiff regarding the existence of a condition that required further development. The ALJ's findings are supported by substantial evidence and Plaintiff has not shown that the ALJ committed a legal error. Therefore, the Court finds that the ALJ has not committed reversible error with respect to his treatment of Dr. Madsen's opinion. Glenn, 21 F.3d at 988.
Plaintiff argues that it was improper for the ALJ to use "evidence from the examining physician reports to bolster Dr. Wharry's opinion despite rejecting those opinions . . . ." Brief [#17] at 34. Plaintiff also maintains that the ALJ "did not offer a valid reason for giving more weight to the nonexamining physician's opinion than was given to the examining physicians[`]." Id. With regard to Dr. Wharry, the ALJ found that her opinion was
well supported and consistent with the record as a whole, based on rare, subjective complaints of social avoidance, impaired social judgment on mental status examinations, and observations of poor hygiene, but with maintenance of appropriate interaction with all interviewers, and the ability to travel within the community and interact sufficiently to obtain services and meals (Exhs. B5F; B6F; B12F; B19F; B21F; B24F).
Tr. 19. As a result, the ALJ "accorded great weight to the opinion of" Dr. Wharry. Tr. 19. As Plaintiff notes, Dr. Wharry was an examining psychologist, not a treating doctor. Her assessment, therefore, was based on the entire record provided to her as of the date of her assessment, April 23, 2010. Tr. 353. Therefore, it is not possible that Dr. Wharry relied on either of Dr. Rodriguez's assessments concluded in August 2011 and August 2012,
Plaintiff also appears to argue that because Dr. Wharry was a nonexamining doctor, her opinion should not have been afforded more weight than an examining doctor. Brief [#17] at 35. Plaintiff is correct to note that the type of evidence available to an expert should be taken into account when considering the weight to be given to that doctor's opinion. For example, the Tenth Circuit has explained that
Robinson v. Barhart, 366 F.3d 1078, at 1084 (10th Cir. 2004). However, as the Tenth Circuit further explained, the ALJ can assign less or more weight to any expert opinion so long as the ALJ provides "a legally sufficient explanation for doing so." Id. The ALJ provided such an explanation in this case. As noted above, the ALJ explained that Dr. Wharry's opinion was "well supported and consistent with the record as a whole" and then provided specific citations to the record. Tr. 19. For these reasons, the Court rejects Plaintiff's argument that "[t]he ALJ improperly afforded more weight to Dr. Wharry's opinion than was given to the opinions of Drs. Rodriguez and Madsen without a compelling reason." Brief [#17] at 38. Therefore, the Court finds that the ALJ has not committed reversible error with respect to his treatment of Dr. Wharry's opinion. Glenn, 21 F.3d at 988.
Finally, Plaintiff argues that the ALJ committed legal error because the "RFC finding does not account for plaintiff's deficits in reading and writing without a proper explanation." Brief [#17] at 38. First, Plaintiff argues that "[t]he ALJ did not state any reason for failing to account for plaintiff's reading and writing deficits in the RFC finding." Id. at 39. This is incorrect. The ALJ noted in his Decision that Plaintiff alleged "a limited capacity to read and write." Tr. 14. Later, when evaluating the evidence in the record, the ALJ explained that
Tr. 16. Because Plaintiff is simply incorrect when he argues that the ALJ "did not state any reason for failing to account for plaintiff's reading and writing deficits in the RFC finding," Brief [#17] at 39, this argument fails.
Second, Plaintiff argues that the ALJ "failed to explain why his findings changed from the initial hearing to the remand hearing." Id. In the ALJ's initial Decision, he included a limitation regarding Plaintiff's ability to read and write. Specifically, he found that Plaintiff could perform a job "requiring little independent reading and writing (meaning a job with low general educational demands). . . ." Tr. 80. As noted above, this first Decision was vacated and remanded for further proceedings. Tr. 91-96. Thus, it was never a final decision by the Commissioner and was not binding. Social Security regulations provide that, in the event the Appeals Council orders a remand, the ALJ "shall initiate such additional proceedings and take such other action . . . as is directed by the Appeals Council in its order of remand. The Administrative Law Judge may take any additional action not inconsistent with the order of remand." 20 C.F.R. § 410.665(b); see also 20 C.F.R. § 416.1477(b) (noting that an ALJ "shall take any action that is ordered by the Appeals Council and may take any additional action that is not inconsistent with the Appeals Council's remand order"). The argument made by Plaintiff is similar to an argument addressed by the Seventh Circuit in Key v. Sullivan, 925 F.2d 1056 (7th Cir. 1991). As the Seventh Circuit explained, "[a] recommended decision never becomes final and binding unless and until it expressly is adopted by the Council." Id. at 1060; see also Gibbs v. Barnhart, 130 F.App'x 426, 430 (11th Cir. 2005) ("[plaintiff's] contention that the second ALJ was legally bound by the first ALJ's findings that [minor's] ADHD and anemia were `severe' impairments is without merit."); Cunningham v. Colvin, 2014 WL 4458894, at *3 (N.D. Ala. Sept. 9, 2014) ("[B]ecause the Appeals Council vacated the first ALJ's written decision, the specific findings contained in that first written decision were never conclusively established and were subject to modification"). Here, the initial Decision was explicitly vacated by the Appeals Council. As a result, it did not become final and was not binding on the ALJ. Further, the ALJ's action of reviewing the evidentiary record as a whole and concluding that he did not need to include the same reading and writing limitation in the RFC was "not inconsistent with the Appeals Council's remand order." 20 C.F.R. § 416.1477(b). The remand order required the ALJ to take five specific steps and "issue a new decision." Tr. 94. Therefore, the ALJ was not bound by the prior Decision and it was not improper for him to reach a different RFC in the second Decision. As a result, the Court concludes that the ALJ did not commit reversible error with respect to this issue.
For the foregoing reasons,
IT IS HEREBY
IT IS FURTHER
