- Tampa - Main Office
- (813) 264-5363
- St. Petersburg Office
- (727) 669-2889
- Sarasota Office
- (941) 309-5154
- Clearwater Office
- (727) 669-2889
- Dade City
- (352) 518-0262
- Hudson / Spring Hill
- (727) 868-2591
- New Port Richey Office
- (727) 845-6333
- Citrus County
- (352) 726-3492
- Louisiana
- (504) 684-4473
Our Florida Offices
Click on a question to see to the answer:
Does the ALJ Have to Give a Reasonable Basis in Rejecting My Testimony ?
Is it an Error For an ALJ to Find That a Claimant Can Return to Past Work?
Must an ALJ Truly Consider What a Claimant’s Past Relevant Work Was?
Does My Pain Really Matter in My Disability Case?
Must an ALJ Consider all My Limitations?
What is my Burden to Prove in my Disability Case?
Can an ALJ Err by Relying on Unsigned Opinions of Two State Agency Consultants?
Does the ALJ Have to Give a Reasonable Basis in Rejecting My Testimony ?
It has been held that a claimant’s subjective testimony supported by medical evidence that satisfies the pain standard is itself sufficient to support a finding of disability. Foote v, Chater, 67 F.3d 1553, 1561 (11th Cir. 1995) The claimant’s testimony as supported by the medical evidence is sufficient not only to support a conclusion that a claimant could not return to past work but that the claimant is, in fact, disabled. An ALJ’s failure to state a reasonable basis for the rejection of the claimant’s testimony mandates that the claimant’s testimony be accepted as true “as a matter of law”. Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991). As a consequence of a claimant’s uncontroverted testimony and the court’s failure to state a reasonable basis for the rejection of a claimant’s testimony, it should be accepted as a matter of law.
Is it an Error For an ALJ to Find That a Claimant Can Return to Past Work?
It has long been the rule that an ALJ must consider the claimant’s past relevant work and evaluate the claimant’s ability to perform those duties in spite of the impairments. Lucas v. Sullivan , 918 F2d. 1567, 1574n.3 (11th Cir 1990). AlJ often err in finding that the claimant could return to past relevant work. The ALJ’s decision that the claimant could return to a prior occupation or presumably, could even engage in Substantial Gainful Activity is often error.
Must an ALJ Truly Consider What a Claimant’s Past Relevant Work Was?
An ALJ in his or her decision denying the claimant benefits must provide meaningful discussion of what she considered the claimant’s past relevant work was and thus, given the lack of a court’s discussion of the claimant’s past relevant work and the interaction and the limiting effects of her impairments on her past relevant work to determine whether the claimant could still do that work, an ALJ’s decision to deny the claimant benefits because she could return to past relevant work would not be supported by substantial evidence.
Must an ALJ Elicit Testimony From an Expert if it is Found That I Cannot Go Back to My Past Relevant Work?
As a consequence of a claimant being unable to return to past relevant work, an ALJ should elicit VE testimony to determine whether the claimant could perform other work. Foote v. Chater, 67 F.3d 1553 (11th Cir. 1995)
What if I Amabsent Excessively or Suffer From Incontinence Due to My Condition, Will That Beconsidered as Part of My Disability Case?
In addition to the claimant’s absences and absenteeism due to her condition, the issue of the claimant’s incontinence is also highly relevant to the claimant’s ability to return to work and AN ALJ’s failure to properly weigh and consider it can be reversible error. Incontinence can be an impairment for purposes of the being found disabled under The Social Security Act and must be considered by an ALJ in determining whether the claimant is disabled. Crowley v. Apfel, 197 F.3d 194 (5th Cir.1999). Where the record is plain that a claimant could not return to past relevant work not only due to her absences due to her nephritic condition but also due to pain and her need to use the restroom frequently, benefits may well be rewarded.
Does My Pain Really Matter in My Disability Case?
Yes, a claimant’s subjective complaints of pain which are consistent with and supported by objective medical evidence and as such should have been entitled to great weight, See Urtz v. Callahan, 965 F.Supp.324,328 (N.D.N.Y. 1997). The claimant’s subjective complaints that are supported by the evidence should be given such deference and weight especially in light of any extensive hospital record and opinions of treating physicians that support such a conclusion. In fact an ALJ must give legitimate reasons to discredit the claimant’s testimony especially where there was no suggestion of exaggeration of symptoms from the record and the claimant’s treating physician supports the claimant’s testimony. See, Dvorak v Celebrezze, 345 F. 2d 897 (10th Cir. 1965)
Must a Judge Sufficiently Articulate the Reasons for Assigning Treating Physicians Opinions Little or No Weight and Relying Instead on Parts of the Opinion of a Non Examining Medical Consultant that Had Not Examined Me or Considered the Record as a Whole?
It is axiomatic that an ALJ has a basic duty to develop a full and fair record. Brown v. Shalala, F. 3d 931,934 (11th Cir. 1995) An ALJ cannot patently ignore the opinions of treating physicians and decide that a claimant is not disabled essentially based on the opinion of one non-examining state evaluator. It is well established that the opinion, diagnosis, and medical evidence of a Plaintiff’s treating physician should be accorded substantial weight unless “good cause” is shown for not doing so. Bloodworth v. Heckler,703 F.2d 1233 (11th Cir. 1983). Moreover, where the opinions of the claimant’s treating physicians are consistent with the substantial evidence of record that shows a claimant to be disabled and truly, no “good cause” is shown by an ALJ in his opinion to disregard the opinions of the Plaintiff’s treating physicians in light of the medical record established in the case, the ALJ commits error, since reports from non-examining advisors cannot by themselves “trump the findings” from treating physicians, Weiler v. Shalala, 922 F. Supp. 689, (D. Mass. 1996), and cannot by itself constitute substantial evidence that justifies the rejection of the of the opinion of an examining or treating physician, Morgan v. Comm’r of the Soc. Sec.Admina., 169 F.3d 595 (9th Cir. 1999) and in the face of overwhelming record evidence of disability, the findings of a non-examining reviewing doctors are given little weight, See, Lamb v. Bowen, 847, F.2d 698 (11th Cir. 1988), and Simmons v. U.S. R.R. Retirement Board. , 982 F.2d 49, (2d Cir. 1987), A Judge’s decision to give more weight to the opinion of a non-treating, non-examining source than to those of the claimant’s treating doctors in a case is error especially since it does not rest on the substantial evidence of record. See, Rosario v. Apfel, 85 F.Supp.2d 62, (D. Mass. 2000)
Will My Own Physician’s Opinions that are Consistent with My Treatment Record Be Given Controlling Weight?
Yes, the claimant’s treating physicians’ opinions in a case should be given controlling weight especially when they are well supported by medically acceptable clinical and laboratory diagnostic techniques, the clinical presentation of the claimant and her testimony and are not inconsistent with other substantial evidence in this case. See, Peterson v. Chater, 983 F. Supp.1410 (M.D. Fla. 1977). Having failed to adequately refute a claimant’s treating physician’s opinions and reports, the findings in those reports are to be accepted as true as a matter of law. MacGregor v. Bowen, 786 F.2d 1050, (11th Cir. 1986) and should be, in light of the fact that the reports of state agency advisors in a case may be unsigned and cannot be used to deny benefits. See, Roman v Apfel, 24 F. Supp. 2d 263 (D. Conn. 1998).
Must an ALJ Develop a Full and Fair Record and Take Into Account the Claimant’s Medical History, Absentteim and Pain in Assessing a Claimant’s Residual Functional Capacity?
It has long been the law that an ALJ must scrupulously and consciously probe into, inquire of and explore all relevant facts. Cowart v. Schweiker , 662 F.2d 731, 735 (11th Cir. 1995). An ALJ errs by failing in his duty to consider all impairments in evaluating the claimant’s disability Walker v. Bowen , 826 F.2d 996-1001 (11th Cir. 1987) .
Must an ALJ Consider all My Limitations?
The ALJ is required to consider and include all of the limitations that are well documented in the record of the claim. An ALJ cannot pick and choose from evidence in the record, but must consider all of the evidence as a whole. Loza v. Apfel, 219 F. 3d 378,394 (5th Cir. 2000) Where an ALJ bases his entire decision on selective excerpts from one medical source while ignoring others, he errs by violating the requirements set forth in Crawford v. Commissioner, 363 F.3d 1155 (11th Cir. 2004) and Ziegler v. Barnhart , 278 F. Supp. 2d 1331 (M.D.Fla.2003), where an ALJ failed to accord the opinion of treating physicians great weight and failed to show good cause to the contrary. As a consequence the ALJ’s decision to deny the claimant benefits was reversed.
What is my Burden to Prove in my Disability Case?
Once a claimant has proven that the claimant’s impairments render him or her unable to perform past work, the burden shifts to show that there is other gainful work in the national economy which the claimant can perform. Venette v. Apfel, 14 F. Supp 2d 1307, 1312 (S.D. Fla. 1998), citing 20 C.F.R. Section 404.1520(e)(f).
Once a Claimant Meets this Burden, Does the Burden Shift to the Government and How Does the SSA Go About Showing that I Am Not Disabled?
Yes, once the burden shifts, this requires the testimony of a vocational expert, who is either present or testifies at the claimant’s hearing. Testimony from a vocational expert is “highly valued and commonly obtained in order to establish the availability of suitable alternative jobs for disability claimants” Holley v. Chater, 931 F. Supp. 840, 851 (S.D> Fla. 1996), and is in fact necessary to determine whether there is other work available in the national economy that the claimant can do. See Wiloson v. Chater, 76 F. 3d 238, 241 n4. (8th Cir. 1996). Procedurally, once the claimant has proved that she could not return to past relevant work, a Judge may err by failing to produce or consider VE testimony which if adduced at hearing would have supported the proposition that considering the nature of a claimant’s illness, requirements for example, for use of the bathroom and numerous yearly absences, a VE would have likely conclude that a claimant was probably unable to work at all at the SGA level. See.,Caviness v. Apfel, 4F. Supp2d 813 at 825 (S.D. Ind. 1998) See also; Moore v. Halter, 168 F. Supp. 2d 1137, (N.D. Cal. 2001) (Where the court found that the ALJ erred in failing to properly consider the claimant’s limitation of requiring 10 restroom trips in a workday and to discuss these details with a vocational expert).
Can an ALJ Err by Relying on Unsigned Opinions of Two State Agency Consultants?
An AlJ errs in relying on the unsigned opinions of two state agency consultants in denying the Claimant benefits. An ALJ cannot rely on the unsigned medical report from a consultative physician to deny a claimant benefits. Scott v. Shalala, 898 F. Supp. 1238, 1251 (N.D. Ill. 1995), (noting that 20C.F.R. Section 404.1519n requires all consultative reports to be personally reviewed and signed). See also Roman v. Apfel, 24 F. Supp.2d 263,275 (D. Conn. 1998).
