GREGORY J. KELLY, Magistrate Judge.
Andrew C. Wigner (the "Claimants") appeals to the District Court from a final decision of the Commissioner of Social Security (the "Commissioner") denying Claimant's claim for reinstatement of benefits. See Doc. No. 1. Claimant was previously determined to be disabled as of July 1, 1998, due to depression and chronic fatigue syndrome. R. 28, 91, 170; Doc. Nos. 15 at 2; 18 at 1. On June 2, 2002, the Commissioner determined that Claimant had not demonstrated medical improvement and Claimant's benefits continued based upon the treatment records and opinions of Claimant's treating psychiatrist Dr. Stephen Oh. R. 610-11. On October 27, 2005, the Commissioner determined that Claimant demonstrated medical improvement and was no longer disabled. R. 91-92. Thus, the Commissioner terminated Claimant's benefits. R. 61-62, 67-70.
Claimant challenged the Commissioner's decision to terminate Claimant's benefits, and on July 13, 2007 and September 10, 2008, hearings were held before Administrative Law Judge Edward Babilonia (the "ALJ"). R. 829-96. On December 3, 2008, the ALJ issued a decision finding that, as of October 1, 2005, Claimant was no longer disabled. R. 25-37.
On appeal, Claimant argues that the final decision of the Commissioner that Claimant ceased to be disabled as of October 1, 2005, is not supported by substantial evidence and should be reversed for further proceedings because: 1) the ALJ failed to state what weight was given to the various medical opinions of record (Doc. No. 15 at 8-11); 2) the Appeals Council failed to apply the correct legal standards to Dr. Oh's March 10, 2009 opinion (Doc. No. 15 at 16-18); and 3) the ALJ's finding that medical improvement occurred as of October 1, 2005 is not supported by substantial evidence (Doc. No. 15 at 12-16). Doc. No. 15 at 2-18. For the reasons more fully discussed below, it is recommended that the Commissioner's decision be
The dispositive issue in this case is whether the ALJ erred by failing to weigh the various medical opinions of record and, therefore, the Court will tailor the medical and administrative history to that issue. Claimant was born on October 17, 1960, and has earned a Bachelor of Arts in Business Administration. R. 95, 123, 149-54, 881-84. Claimant has past relevant work experience as an advertising sales representative and as a trust representative for a bank. R. 117-18, 149-54.
On December 20, 1989, Claimant was evaluated by doctors at the Mayo Clinic in Jacksonville and found to be severely depressed with disabling worry and pessimism. R. 222. Claimant was diagnosed with dysthymia and probable somatoform disorder. R. 22. Claimant was referred for psychiatric treatment. R. 222.
From 1990 through March of 2009, Claimant's primary treating psychiatrist was Dr. Stephen Oh. R. 231-294, 624-25, 685-708, 803-804. The record contains treatment records which show that Dr. Oh has treated Claimant on a least a quarterly basis since 1990. R. 231-294, 624-25, 685-708, 803-804. On July 6, 1999, Dr. Oh provided a medical source statement wherein he diagnosed Claimant with severe depression and chronic fatigue syndrome ("CFS"). R. 444. Dr. Oh described Claimant's symptoms as depression, decreased energy and motivation, feeling anxious and helpless. R. 444. Dr. Oh stated that Claimant's quality of thinking was relevant and coherent, his concentration was impaired, but Claimant's orientation and memory were good. R. 444.
On October 11, 1999, Dr. Oh provided the following opinion:
R. 264 (emphasis added). Dr. Oh's 1999 opinion was utilized in the Commissioner's original determination of disability. R. 134.
On October 5, 2005, Dr. Oh provided a Treating Source Mental Health Report which opines that Claimant's: mood and affect are anxious and depressed; quality of thinking is relevant, coherent, and there are no delusional ideations; concentration, orientation, and memory are good; and diagnosis is panic disorder and major depression, recurrent. R. 624-25. Dr. Oh also stated that Claimant is competent to manage his own funds if benefits are reinstated. R. 625.
On March 10, 2009, after the ALJ's decision was issued, Dr. Oh submitted the following opinion:
R. 803-04 (emphasis added). Thus, Dr. Oh's March 10, 2009 opinion states that Claimant suffers from Major Clinical Depression, Anxiety/Panic Disorder, and CFS. R. 803. Claimant's Anxiety/Panic disorder is controlled with medication and Claimant's Depression has improved somewhat with treatment, but Claimant still suffers from debilitating fatigue. R. 803-04. Dr. Oh rejects or takes substantial issue with the opinions of two non-examining physicians, who testified at the hearing before the ALJ. R. 803-04. More specifically, based on his 20 years of treatment, Dr. Oh opines that Claimant does suffer from severe CFS and he has ruled out a Somatoform Disorder. R. 803-04.
Claimant was treated by Dr. Hana Chaim from December 1, 1998 through October 18, 1999. R. 295-422. On September 24, 1999, Dr. Chaim provided the following opinion:
R. 299 (emphasis added). Thus, Dr. Chaim opined that Claimant suffers from severe CFS based on laboratory findings and Claimant is unable to perform work related activities. Id. Dr. Chaim's opinion was utilized in the Commissioner's original determination of disability. R. 134. The record does not contain any updated treatment records or other medical opinions from Dr. Chaim.
On December 17, 1999, Claimant presented to Dr. Wahba W. Wahba "with a chief complaint of excessive daytime sleepiness." R. 488. Dr. Wahba diagnosed Claimant with CFS, which "may give him the sensation of tiredness together with all the medication he is taking." R. 488. Dr. Wahba's treatment notes reflect that Claimant was taking Zoloft, Wellbutrin, Dexedrine, Armor, Guaifensin, Ambien, testosterone, magnesium sulfate, and vitamin B-12. R. 488. After conducting laboratory testing, Dr. Wahba diagnosed Claimant with significant Obstructive Sleep Apnea and intermittent insomnia. R. 485-87. Dr. Wahba prescribed a nasal Continuous Positive Airway Pressure ("CPAP") machine for therapy. R. 485. On March 22, 2004, Dr. Wahba's treatment record provides that Claimant is sleeping well at night and his CFS "has improved." R. 482.
Claimant received treatment from Dr. S. Todd Robinson from June 21, 2000 through November 13, 2002, and then again from November 27, 2007 through at least April 7, 2008. R. 502-609, 729. On April 7, 2008, Dr. Robinson offered the following opinion:
R. 729. Thus, Dr. Robinson opined that his laboratory testing indicated that Claimant has CFS, among other diagnoses. R. 729.
On May 22, 2006, Claimant presented to Dr. David W. Carpenter for a disability evaluation. R. 670-75. Claimant reported that he has a history of major depressive disorder and CFS. R. 670. Claimant stated that he believed he was stable on his current medication. R. 670. Claimant reported that he can conduct household chores for 4 hours, but the following day he will experience significant fatigue. R. 670. Claimant's medications were Dexedrine, Zoloft, and Wellbutrin. R. 670. After physical examination, Dr. Carpenter diagnosed Claimant with Major Depression and CFS. R. 672. However, Dr. Carpenter also stated:
R. 672. Thus, Dr. Carpenter did not find any specific functional limitations. R. 672.
On October 2, 2007, Dr. Malcolm J. Graham, III, Ph.D. conducted a consultative psychological examination of Claimant. R. 709-14. Dr. Graham's mental status examination revealed the following: appropriate mood and affect, rational and coherent quality of thinking, good concentration, orientation, and memory, and no behavioral indications of anxiety, depression, or thought disorder. R. 710. Dr. Graham diagnosed Claimant with an Axis I of Major Depression, mild to moderate; no Axis II diagnosis, an Axis III diagnosis of CFS by report, and Global Assessment of Functioning score of 65-75. R. 711. Dr. Graham opined that Claimant's prognosis is guarded. R. 711.
Dr. Graham also completed a Medical Source Statement of Ability to Do Work-Related Activities (Mental). R. 712-14. Dr. Graham opined that there were no mental limitations in Claimant's ability to perform work-related activities. R. 712-14.
On October 31, 2007, Dr. Alvan Barber, a neurologist, completed a consultative evaluation of Claimant. R. 715-727. Claimant reported that he is unable to work due to extreme fatigue. R. 715. Physical examination was normal, but Claimant's mental status examination revealed a flat affect and positive evidence of depression. R. 716-717. Cognitive functioning was adequate. R. 717. Dr. Barber's impressions were depression treated with medication, a history of CFS, and sleep apnea treated with a CPAP machine. R. 718.
Dr Barber also completed a Medical Source Statement of Ability to Do Work-Related Activities (Physical) wherein he opined that Claimant can: occasionally lift and carry up to 100 pounds and frequently lift up to 20 pounds; sit and stand without limitation during an 8 hour workday; use his hands and feet continuously without limitation during an 8 hour workday; never climb ladders, but may frequently climb ramps and stairs, balance, stoop, kneel, crouch, and crawl; never be exposed to unprotected heights, extreme cold, heat; and occasionally be exposed dust, odors, and fumes, and vibrations. R. 722-26. Thus, Dr. Barber opined that Claimant is not significantly limited in any area of physical functioning. R. 727.
On May 30, 2008, Dr. Carlos M. Sanchez conducted a consultative examination of Claimant. R. 752-64. Physical examination was unremarkable and Dr. Sanchez's final impression was CFS. R. 754. Dr. Sanchez also completed a Medical Source Statement of Ability to Do Work-Related Activities (Physical) wherein he opined that Claimant can: lift and carry up to 100 pounds occasionally and 20 pounds frequently; sit, stand, and walk each up to 2 hours at a time and for each a total of three hours; continually use his hands and feet; never climb ladders, but may frequently climb stairs and ramps, balance, stoop, kneel, crouch and crawl; and only has occasional limitations with environmental factors such as unprotected heights, moving mechanical parts, dust or fumes, extreme heat and cold, and vibrations. R. 759-64.
On June 11, 2008, Dr. Jeff Oatley, Ph.D., a psychologist, conducted a consultative psychological evaluation of Claimant. R. 765-71. Dr. Oatley's mental status examination revealed: anxious mood, low self-esteem, and normal energy level; adequate fund of knowledge and coherent though process; and no concentration, orientation, or memory deficits. R. 766. Standardized testing results reflected a truthful self-presentation. R. 767. Dr. Oatley opined that "
Dr. Oatley also completed a Medical Source Statement of Ability to Do Work-Related Activities (Mental) wherein he opined that Claimant has: no limitations in his ability to understand, remember, and carry out instructions; mild limitations in the ability to interact appropriately with supervisors, coworkers, and the public; no other limitations. R. 769-70.
On October 17, 2005, Dr. Steven L. Wise, Ph.D., a clinical psychologist, completed a non-examining Psychiatric Review Technique ("PRT") and a Mental Residual Functional Capacity Assessment ("MRFC") based upon a medical records review. R. 626-43. Dr. Wise opined that Claimant carries a diagnosis of major depressive disorder, recently euthymic. R. 629. Dr. Wise state that Claimant's limitations result in a moderate restrictions of activities of daily living and difficulties in maintaining social functioning, but only mild difficulties in maintaining concentration, persistence, or pace. R. 636. Dr. Wise stated the most recent disability determination in 2002 was on Claimant's severe depression and nervous, restricted affect as reported by Dr. Oh. R. 638. As of October of 2005, Dr. Wise opined that Claimant being treated with medication for his depression, displayed pleasant, cooperative, and normal affect. R. 638. Recent treatment notes from Dr. Oh suggest that he is doing well, although he remains anxious and depressed. R. 638. Mental status examination revealed relevant, coherent thoughts, and good concentration and memory. R. 638. Dr. Wise statement that Claimant's sleep apnea issues appear more dependent on CPAP treatment than psychological factors. R. 638. Ultimately, Dr. Wise opined that Claimant's depression "appears somewhat improved based on current [medical records]." R. 638.
In the MRFC, Dr. Wise opined that Claimant was not significantly limited in any area of functioning except for moderate limitations in the ability to maintain sustained concentration and persistence, and in the ability to set realistic goals or make plans independently of others. R. 640-41. Dr. Wise stated that medical improvement had occurred with Claimant's depression and he no longer evidences the severe concentration problems evidenced in 2002. R. 642. Claimant displays fewer symptoms and very few severe symptoms of depression. R. 642. Dr. Wise opined that Claimant can perform simple tasks. R. 642.
On October 21, 2005, Dr. Nicholas H. Bancks, a board certified radiologist, completed a non-examining Physical Residual Functional Capacity ("RFC") assessment based upon a medical records review. R. 644-51. Dr. Bancks stated that the medical records revealed diagnoses of obstructive sleep apnea and other complaints of fatigue. R. 644. Dr. Bancks opined that Claimant can: lift and carry up to 50 pounds occasionally and 20 pounds frequently; sit, stand, and walk each about 6 hours in an 8 hour work day; and Claimant is limited in pushing or pulling with the upper extremities. R. 645. Dr. Bancks based his opinions on the medical records showing that Claimant's fatigue had improved through the use of the CPAP machine. R. 645. Dr. Bancks opines that CFS diagnosis is
On Dr. Val Bee, a psychologist and non-examining state agency consultant, completed a PRT and MRFC based upon a medical records review. R. 652-669. Dr. Bee opined that Claimant suffers from an affective and anxiety related disorder. R. 652. Dr. Bee opined that Claimant's affective disorder is characterized by sleep disturbances, difficulty concentrating, and major depression, which is in partial remission. R. 656. Dr. Bee stated that Claimant also has a panic disorder. R. 657. Dr. Bee opined that Claimant's impairments result in moderate difficulties maintaining concentration, persistence, or pace, and mild difficulties with activities of daily living and maintaining social functioning. R. 662. Dr. Bee stated the following:
R. 664. Thus, Dr. Bee opined that Claimant had medically improved from his status in 2002. R. 664.
In the MRFC, Dr. Bee opined that Claimant is moderately limited in the ability to maintain attention and concentration for extended periods, to complete a normal workweek without interruption from psychologically based symptoms, and to set realistic goals. R. 666-67. Dr. Bee opined that all other areas of mental functioning were not significantly limited. R. 666-67. Dr. Bee concluded:
R. 668. Thus, Dr. Bee opined that Claimant was capable of, and may well benefit from, a well structured work environment. R. 668.
On June 1, 2006, Dr. Reuben E. Brigety, an obstetrician/gynecologist and non-examining state agency consultant, completed an RFC based upon a medical records review. R. 677-84. Dr. Brigety opined that Claimant has a primary diagnosis of obstructive sleep apnea and a secondary diagnosis of CFS. R. 677. Dr. Brigety opined that Claimant: can lift or carry up to 50 pounds occasionally and 20 pounds frequently; can sit, stand, and/or walk each about 6 hours in an 8 hour workday; and is limited in pulling or pushing in the upper extremity. R. 678. Dr. Brigety based his conclusions upon Claimant's diagnosis of CFS, a sleep study documenting obstructive sleep apnea, improved CFS, and a May 22, 2006 consultative examination by Dr. Carpenter. R. 678-79. Other than only being able to occasionally climb ladders and stairs, Dr. Brigety opined that Claimant has no further physical limitations. R. 679-84.
At the September 10, 2008 hearing, the ALJ elicited testimony from two non-examining medical professionals, Dr. Anne Edith Winkler, a rheumatologist, and Dr. Carlos Kronberger, a psychologist, who completed medical records reviews. R. 852-80. The ALJ completed two Medical Source Statements of Ability to Do Work-Related Activities (Physical and Mental) based on their respective testimony. R. 796-802.
Dr. Winkler opined that Claimant carries a diagnosis of sleep apnea, carpal tunnel syndrome (resolved), and depression, but she suggests that Claimant does not have CFS. R. 854. Dr. Winkler testified that "from reviewing the records,
Dr. Winkler opined that Claimant: can lift and carry up to 25 pounds occasionally and 20 pounds frequently; can sit and stand for about 6 hours each in an 8 hour workday; has no limitations in sitting; has some limitations in pushing or pulling; will be limited to only occasionally climbing, kneeling, crouching, crawling, and stooping; has no manipulative limitations; and should only avoid hazards such as machinery. R. 796-99.
Dr. Kronberger opined that based upon his review of the medical records, Claimant's mental impairments caused mild restrictions in activities of daily living and social interaction, and moderate limitations in concentration, but only on an occasional basis. R. 800-801, 872-873.
On December 3, 2008, the ALJ issued a decision finding that Claimant is no longer disabled as of October 1, 2005. R. 28-38. The ALJ made the following significant findings:
R. 30-37. In his decision, the ALJ did not weigh or even discuss any of the above referenced medical opinions, except those of Drs. Winkler and Kronberger, the non-examining state agency consultants who testified at the hearing following a medical records review. See R. 30-37.
R. 37 (emphasis added). Thus, the ALJ adopted the opinions of the Dr. Winkler and Kronberger in reaching his decision regarding the Claimant's impairments and their resulting functional limitations.
Claimant requested review of the ALJ's decision from the Appeals Council and submitted Dr. Oh's March 10, 2009 opinion as part of his request for review. R. 11, 14. On August 27, 2010, the Appeals Council issued an order denying Claimant's request for review. R. 11-14. In its order, the Appeals Council stated that it had "considered the reasons you disagree with the decision and the additional evidence . . . [but] found that this information does not provide a basis for changing the [ALJ's] decision." R. 11-12. On December 13, 2010, Claimant appealed the final decision of the Commissioner to the District Court. Doc. No. 1.
As mentioned above, the dispositive issue in this case is whether the ALJ erred by failing to weigh the opinions of record. Claimant maintains that the ALJ is required to state with particularity the weight given to the medical opinions of record and the reasons therefor. Doc. No. 15 at 8 (citing Sharfarz v. Bowen, 825 F.2d 278, 279 (11th Cir. 1987)). Claimant maintains that the ALJ's failure to do so in this case makes it impossible for a reviewing court to determine whether the ultimate decision is supported by substantial evidence. Doc. No. 15 at 8-11.
In response, "the Commissioner acknowledges that the ALJ
The Commissioner may terminate a claimant's benefits upon a finding that there has been medical improvement in the claimant's impairment or combination of impairments related to the claimant's ability to engage in substantial gainful activity. See 42 U.S.C. § 423(f)(1). In order to determine whether to terminate a claimant's benefits, the ALJ must conduct the following multi-step evaluation and determine:
See 20 C.F.R. § 404.1594(f); Chereza v. Commissioner of Social Security, 379 Fed.Appx. 934, 938 (11th Cir. May 21, 2010) (unpublished).
The Commissioner's findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is more than a scintilla — i.e., the evidence must do more than merely create a suspicion of the existence of a fact, and must include such relevant evidence as a reasonable person would accept as adequate to support the conclusion. Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995) (citing Walden v. Schweiker, 672 F.2d 835, 838 (11th Cir. 1982) and Richardson v. Perales, 402 U.S. 389, 401 (1971)); accord, Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991).
Where the Commissioner's decision is supported by substantial evidence, the District Court will affirm, even if the reviewer would have reached a contrary result as finder of fact, and even if the reviewer finds that the evidence preponderates against the Commissioner's decision. Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991); Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991). The District Court must view the evidence as a whole, taking into account evidence favorable as well as unfavorable to the decision. Foote, 67 F.3d at 1560; accord, Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (court must scrutinize the entire record to determine reasonableness of factual findings); Parker v. Bowen, 793 F.2d 1177 (11th Cir. 1986) (court also must consider evidence detracting from evidence on which Commissioner relied). The District Court "may not decide the facts anew, reweigh the evidence, or substitute [its] judgment for that of the [Commissioner]." Phillips v. Barnhart, 357 F.3d 1232, 1240 n. 8 (11th Cir. 2004).
Congress has empowered the District Court to reverse the decision of the Commissioner without remanding the cause. 42 U.S.C. § 405(g)(Sentence Four). To remand under sentence four, the District Court must either find that the Commissioner's decision applied the incorrect law, fails to provide the court with sufficient reasoning to determine whether the proper law was applied, or is not supported by substantial evidence. Keeton v. Dep't of Health & Human Serv., 21 F.3d 1064, 1066 (11th Cir. 1994) (reversal and remand appropriate where ALJ failed to apply correct law or the ALJ failed to provide sufficient reasoning to determine where proper legal analysis was conducted) (citing Cornelius v. Sullivan, 936 F.2d 1143, 1146 (11th Cir. 1991); Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)); Jackson v. Chater, 99 F.3d 1086, 1090-91 (11th Cir. 1996) (remand appropriate where ALJ failed to develop a full and fair record of claimant's RFC); accord Brenem v. Harris, 621 F.2d 688, 690 (5th Cir. 1980) (remand appropriate where record was insufficient to affirm, but also was insufficient for District Court to find claimant disabled).
This Court may reverse the decision of the Commissioner and order an award of 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. Davis v. Shalala, 985 F.2d 528, 534 (11th Cir. 1993); accord, Bowen v. Heckler, 748 F.2d 629, 631, 636-37 (11th Cir. 1984). A claimant may also be entitled to an immediate award of benefits where the claimant has suffered an injustice, Walden v. Schweiker, 672 F.2d 835, 840 (11th Cir. 1982), or where the ALJ has erred and the record lacks substantial evidence supporting the conclusion of no disability, Spencer v. Heckler, 765 F.2d 1090, 1094 (11th Cir. 1985). The District Court may remand a case to the Commissioner for a rehearing under sentences four or six of 42 U.S.C. § 405(g); or under both sentences. Jackson, 99 F.3d at 1089-92, 1095, 1098. Where the District Court cannot discern the basis for the Commissioner's decision, a sentence-four remand may be appropriate to allow the Commissioner to explain the basis for his decision. Falcon v. Heckler, 732 F.2d 827, 829-30 (11th Cir. 1984) (remand was appropriate to allow ALJ to explain his basis for determining that claimant's depression did not significantly affect her ability to work).
It is undisputed that the ALJ did not state with particularity the weight given to any medical opinion other than to the opinions of the non-examining state agency consultants who testified at the hearing. That failure alone constitutes reversible error. Winschel v. Commissioner of Social Security, 631 F.3d 1176, 1178-79 (11th Cir. 2011).
Weighing the opinions and findings of treating, examining, and non-examining physicians is an integral part of the process for determining disability. The Eleventh Circuit recently clarified the standard the Commissioner is required to utilize when considering medical opinion evidence. In Winschel v. Commissioner of Social Security, 631 F.3d 1176, 1178-79 (11th Cir., 2011), the Eleventh Circuit held that whenever a physician offers a statement reflecting judgments about the nature and severity of a claimant's impairments, including symptoms, diagnosis, and prognosis, what the claimant can still do despite his or her impairments, and the claimant's physical and mental restrictions, the statement is an opinion requiring the ALJ to state with particularity the weight given to it and the reasons therefor. Id. (citing 20 CRF §§ 404.1527(a)(2), 416.927(a)(2); Sharfarz v. Bowen, 825 F.2d 278, 279 (11th Cir. 1987)). The Eleventh Circuit stated that "`
The Commissioner acknowledges that the ALJ failed to comply with this standard, but argues that the error is harmless because the ALJ gave great weight to the opinions of two non-examining physicians. Doc. No. 18 at 16-21. However, it is well established in the Eleventh Circuit that the opinions of a non-examining physician do not constitute substantial evidence on which to base a decision. Spencer ex rel. Spencer v. Heckler, 765 F.2d 1090, 1094 (11th Cir. 1985). Nevertheless, the Court has considered whether the ALJ's failure in this case is harmless error.
The ALJ failed to state with particularity the weight given to, and the reasons therefor, to twelve (12) medical opinions that were rendered after the Claimant's last disability determination was made. See R. 482, 624-25, 626-43, 644-51, 652-69, 670-75, 677-84, 685-727, 729, 752-64, 765-71. In addition, Dr. Oh, Claimant's treating psychiatrist of nearly twenty (20) years, submitted an opinion to the Appeals Council in March of 2009, which conflicts with the opinions of the non-examining physicians relied upon by the ALJ. R. 803-04.
In this case, the Court is unable to determine whether the new evidence submitted to the Appeals Council, Dr. Oh's opinion, would render the ALJ's decision erroneous because the evidence was never weighed. However, because the Court "may not decide the facts anew, reweigh the evidence, or substitute [its] judgment for that of the [Commissioner]," it is impossible to determine whether the ALJ's decision is supported by substantial evidence. Phillips v. Barnhart, 357 F.3d 1232, 1240 n. 8 (11th Cir. 2004); see also Winschel, 631 F.3d at 1178-79. Accordingly, it is recommend that the case be remanded to the ALJ with directions to state with particularity the weight given to the medical opinions of record, including Dr. Oh's March 10, 2009 opinion, and the reasons therefor.
The Court also notes that the ALJ, based upon the opinion of Dr. Winkler, a non-examining physician, failed to accept the Claimant's CFS diagnosis or any resulting functional limitations despite contrary opinions from Claimant's treating and examining physicians. R. 32-33. In Vega v. Commissioner of Social Security, 265 F.3d 1214, 1219-20 (11th Cir. 2001), receded from on other grounds, 496 F.3d 1253, 1268-69 (11th Cir. 2007), the Eleventh discussed the nature of CFS and corresponding duties of an ALJ confronted with an allegation of disability based on CFS. The Eleventh Circuit stated:
Vega, 265 F.3d at 1219-20 (emphasis added). Thus, due to the nature of CFS, an ALJ errs if he or she ignores evidence in the record of a diagnosis of CFS, rejects such a diagnosis, or fails to conduct any meaningful analysis of the effect of CFS on a claimant's ability to work based upon the lack of diagnostic testing or specific laboratory findings. Id.
In this case, the ALJ stated that Dr. Winkler, whose opinions the ALJ fully adopted, testified that "
Rather than containing mere "mentions of CFS as a diagnosis," the record contains multiple diagnoses of CFS by four separate treating physicians, Drs. Oh, Robinson, Wahba, and Chaim, including reports that other impairments had been ruled out and explanations of the resulting functional limitations from Claimant's CFS. R. 264, 299, 444, 482, 488, 729, 803-804.
Based on the forgoing, the undersigned recommends that the Court:
Failure to file written objections to the proposed findings and recommendations contained in this report within
