Rogers v. Social Security Administration, Commissioner

Filing 18

MEMORANDUM OPINION and Order Reversing and Remanding the Decision of the Commissioner. Signed by Magistrate Judge Nicholas A Danella on 08/29/2024. (CLD)

FILED
2024 Aug-29 PM 02:58
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
JASPER DIVISION
LAUREN L. ROGERS,

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Plaintiff,
v.
SOCIAL SECURITY
ADMINISTRATION,
COMMISSIONER,
Defendant.

Case No. 6:22-cv-01208-NAD

MEMORANDUM OPINION AND ORDER REVERSING AND
REMANDING THE DECISION OF THE COMMISSIONER
Pursuant to 42 U.S.C. § 405(g), Plaintiff Lauren L. Rogers filed for review of
an adverse, final decision of the Commissioner of the Social Security Administration
(“Commissioner”) on her claim for disability benefits. Doc. 1. Plaintiff Rogers
applied for disability benefits with an alleged onset date of October 1, 2017. Doc.
6-4 at 2–5; Doc. 6-6 at 2–12. The Commissioner denied Rogers’ claim for benefits.
Doc. 6-3 at 2–6, 22–39. In this appeal, the parties consented to magistrate judge
jurisdiction. Doc. 8; 28 U.S.C. § 636(c)(1); Fed. R. Civ. P. 73.
After careful consideration of the parties’ submissions, the relevant law, and
the record as a whole, the court REVERSES and REMANDS the Commissioner’s
decision.

1

ISSUES FOR REVIEW
In this appeal, Rogers argues that the court should reverse the Commissioner’s
decision for five reasons: (1) the Administrative Law Judge (ALJ) “failed to
properly evaluate and articulate” Rogers’ subjective symptoms and account for her
pain related limitations; (2) the ALJ “failed to provide an articulate assessment” of
the medical opinion of Dr. Eric Bready as required by the applicable regulations;
(3) the ALJ failed to resolve an ambiguity in Dr. Bready’s opinion; (4) the ALJ
“improperly considered” Rogers’ daily activities and limitations; and (5) the ALJ
erred in finding that Rogers’ fibromyalgia was not a medically determinable
impairment. Doc. 9 at 19, 22, 25–26, 31.
Because the court will reverse and remand for further consideration of Dr.
Bready’s opinion, the court need not reach the merits of the other issues that Rogers
raised in this appeal.
STATUTORY AND REGULATORY FRAMEWORK
A claimant applying for Social Security benefits bears the burden of proving
disability. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). To qualify for
disability benefits, a claimant must show disability, which is defined as the “inability
to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or which has
lasted or can be expected to last for a continuous period of not less than 12 months.”
2

42 U.S.C. § 423(d)(1)(A); see 20 C.F.R. § 404.1505.
A physical or mental impairment is “an impairment that results from
anatomical, physiological, or psychological abnormalities which are demonstrable
by medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C.
§ 423(d)(3).
The Social Security Administration (SSA) reviews an application for
disability benefits in three stages:

(1) initial determination, including

reconsideration; (2) review by an ALJ; and (3) review by the SSA Appeals Council.
See 20 C.F.R. § 404.900(a)(1)–(4).
When a claim for disability benefits reaches an ALJ as part of the
administrative process, the ALJ follows a five-step sequential analysis to determine
whether the claimant is disabled. The ALJ must determine the following:
(1)

whether the claimant is engaged in substantial gainful activity;

(2)

if not, whether the claimant has a severe impairment or
combination of impairments;

(3)

if so, whether that impairment or combination of impairments
meets or equals any “Listing of Impairments” in the Social
Security regulations;

(4)

if not, whether the claimant can perform his past relevant work
in light of his “residual functional capacity” or “RFC”; and,

(5)

if not, whether, based on the claimant’s age, education, and work
experience, he can perform other work found in the national
economy.

20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); see Winschel v. Commissioner of Soc.
3

Sec. Admin., 631 F.3d 1176, 1178 (11th Cir. 2011).
The Social Security 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. At step five of the inquiry, the burden temporarily
shifts to the Commissioner “to show the existence of other jobs in the national
economy which, given the claimant’s impairments, the claimant can perform.”
Washington v. Commissioner of Soc. Sec., 906 F.3d 1353, 1359 (11th Cir. 2018)
(quoting Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987)).

If the

Commissioner makes that showing, the burden then shifts back to the claimant to
show that he cannot perform those jobs. Id. So, while the burden temporarily shifts
to the Commissioner at step five, the overall burden of proving disability always
remains on the claimant. Id.
STANDARD OF REVIEW
The federal courts have only a limited role in reviewing a plaintiff’s claim
under the Social Security Act. The court reviews the Commissioner’s decision to
determine whether “it is supported by substantial evidence and based upon proper
legal standards.” Lewis v. Callahan, 125 F.3d 1436, 1439 (11th Cir. 1997).
A.

With respect to fact issues, pursuant to 42 U.S.C. § 405(g), the

Commissioner’s “factual findings are conclusive if supported by ‘substantial
evidence.’” Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990). “Substantial
4

evidence is more than a scintilla and is such relevant evidence as a reasonable person
would accept as adequate to support a conclusion.” Crawford v. Commissioner of
Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004).
In evaluating whether substantial evidence supports the Commissioner’s
decision, a district court may not “decide the facts anew, reweigh the evidence,” or
substitute its own judgment for that of the Commissioner. Winschel, 631 F.3d at
1178 (citation and quotation marks omitted); see Walden v. Schweiker, 672 F.2d 835,
838 (11th Cir. 1982) (similar). If the ALJ’s decision is supported by substantial
evidence, the court must affirm, “[e]ven if the evidence preponderates against the
Commissioner’s findings.” Crawford, 363 F.3d at 1158 (quoting Martin, 894 F.2d
at 1529).
But “[t]his does not relieve the court of its responsibility to scrutinize the
record in its entirety to ascertain whether substantial evidence supports each
essential administrative finding.” Walden, 672 F.2d at 838 (citing Strickland v.
Harris, 615 F.2d 1103, 1106 (5th Cir. 1980)); see Walker v. Bowen, 826 F.2d 996,
999 (11th Cir. 1987). “The ALJ must rely on the full range of evidence . . . , rather
than cherry picking records from single days or treatments to support a conclusion.”
Cabrera v. Commissioner of Soc. Sec., No. 22-13053, 2023 WL 5768387, at *8 (11th
Cir. Sept. 7, 2023).
B.

With respect to legal issues, “[n]o . . . presumption of validity attaches
5

to the [Commissioner’s] legal conclusions, including determination of the proper
standards to be applied in evaluating claims.” Walker, 826 F.2d at 999. And 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.” Cornelius v. Sullivan, 936 F.2d 1143, 1145–46 (11th
Cir. 1991).
BACKGROUND
A.

Rogers’ personal and medical history

Rogers was born October 17, 1988. Doc. 6-4 at 2, 4. Rogers suffers from
Peutz-Jeghers syndrome, which causes abdominal polyps and other health issues.
See, e.g., Doc. 6-8 at 33, 62, 77; Doc. 6-9 at 84, 166; Doc. 6-11 at 24; Doc. 6-14 at
22, 105; Doc. 6-15 at 11, 29, 111. She also suffers from chronic kidney stones. See,
e.g., Doc. 6-8 at 33, 68; Doc. 6-9 at 166; Doc. 6-12 at 12. Rogers’ medical records
show an extensive history of surgeries for various concerns, including abdominal
issues and sinus issues. See, e.g., Doc. 6-8 at 5–7, 22, 25, 46–47, 122–23; Doc. 6-9
at 18, 35, 167; Doc. 6-11 at 57, 82; Doc. 6-13 at 23; Doc. 6-14 at 22; Doc. 6-15 at
29, 127.
Rogers’ medical records also show a long history of complaints of abdominal
pain and attempts to treat her pain through various methods, including different
medications. See, e.g., Doc. 6-8 at 8–10, 18–21, 51, 72, 84, 98–106, 117, 136; Doc.
6

6-9 at 3, 10, 24, 48; Doc. 6-11 at 87, 113; Doc. 6-13 at 102; Doc. 6-14 at 108, 132;
Doc. 6-15 at 123. Her records show a history of nausea and vomiting associated
with abdominal pain, as well as anemia. See, e.g., Doc. 6-8 at 88–92; Doc. 6-9 at
54–55; Doc. 6-11 at 34, 125; Doc. 6-14 at 105; Doc. 6-15 at 36, 88. Rogers’ records
also show a history of back pain and some leg pain and numbness. See, e.g., Doc.
6-9 at 148–50, 182; Doc. 6-11 at 137–38; Doc. 6-12 at 43–44; Doc. 6-13 at 55, 120,
129; Doc. 6-14 at 3, 44. Rogers has been diagnosed with attention deficit disorder
(ADD), and her records show issues with depression and anxiety. See, e.g., Doc. 611 at 24; Doc. 6-13 at 116; Doc. 6-14 at 2, 9, 23, 41, 49, 151; Doc. 6-15 at 29, 75.
She has been diagnosed with and treated for fibromyalgia. See, e.g., Doc. 6-13 at
102, 145; Doc. 6-14 at 7, 23, 35, 58, 110; Doc. 6-15 at 46, 55, 71, 123.
On May 20, 2020, Rogers submitted an adult function report. Doc. 6-7 at 38–
45. Rogers noted that she was documenting her symptoms for a typical “bad day,”
and stated that she suffered from nausea, vomiting, pain, and depression that kept
her in bed all day. Doc. 6-7 at 38. She stated that she took care of her child when
she was able, but that her family helped her when she was not able. Doc. 6-7 at 39.
Similarly, she stated that she could sometimes perform household tasks on good
days, but often had help from her family. Doc. 6-7 at 39–42. Rogers stated that her
impairments affected her ability to lift, squat, bend, stand, reach, walk, sit, kneel,
climb stairs, remember, complete tasks, concentrate, understand, follow instructions,
7

and get along with others. Doc. 6-7 at 43.
On August 10, 2020, psychologist Jon Rogers, Ph.D., conducted a
psychological evaluation of Rogers. Doc. 6-15 at 11–16. Dr. Rogers examined
Rogers, and opined that Rogers had a moderate-to-severe level of mental impairment
and that her ability to understand, remember, and carry out instructions and her
ability to respond appropriately to supervision would be moderately impaired. Doc.
6-15 at 11–16. Dr. Rogers opined that Rogers’ ability to respond appropriately to
work pressures in a work setting would be severely impaired. Doc. 6-15 at 16.
On September 12, 2020, Dr. Eric Bready performed a consultative
examination of Rogers. Doc. 6-15 at 18–24. Dr. Bready noted that Rogers suffered
from Peutz-Jeghers syndrome, chronic pain, fibromyalgia, back pain, and ADD.
Doc. 6-15 at 18. Dr. Bready noted Rogers’ medical history, including previous
surgeries, history of anemia, and history of anxiety and depression. Doc. 6-15 at
19–20, 22–23. Dr. Bready’s physical examination of Rogers was grossly normal, as
was a mental status screening. Doc. 6-15 at 20–22. Dr. Bready noted that Rogers’
chronic pain was “somewhat controlled” with medication. Doc. 6-15 at 22–23. Dr.
Bready noted that, due to her Peutz-Jeghers syndrome, Rogers sporadically suffered
from chronic dehydration, chronic nausea and vomiting, and stomach pain—which
were helped “a little” by over the counter medication—as well as chronic anemia,
kidney stones, and sinus issues. Doc. 6-15 at 23.
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Dr. Bready opined that, “[b]ased on the available medical history and
objective clinical findings, this claimant has limitations.” Doc. 6-15 at 23. Dr.
Bready opined that, based on the results of that day’s examination, Rogers seemed
well and able to work, but that her history suggested that she was “at risk for multiple
malignancies and complications related to adhesions from prior surgeries.” Doc. 615 at 23. Dr. Bready opined that “[f]rom a pain standpoint she has limitation in
standing and is able to stand continuously in an 8 hour workday,” that “[s]he has
limitation in sitting and is able to sit continuously in an 8 hour workday,” that “she
has limitation in walking and is able to walk continuously in an 8 hour workday,”
and that “she has limitation with concentration in the setting of ADD.” Doc. 6-15 at
23.
B.

Social Security proceedings
1.

Initial application and denial of benefits

In February 2020, Rogers filed applications for Disability Insurance Benefits
(DIB) and Supplemental Security Income (SSI) due to Peutz-Jeghers syndrome,
back issues, stomach issues, depression, anxiety, ADHD, and several other
conditions, with an alleged onset date of October 1, 2017. Doc. 6-4 at 2–5; Doc. 66 at 2–12. On September 16, 2020, Rogers’ applications were denied at the initial
level based on a finding that she could perform medium work and was not disabled.
Doc. 6-4 at 2–43.
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On October 21, 2020, Rogers requested reconsideration of the initial denials
of her applications for benefits. Doc. 6-5 at 28. On January 20, 2021, Rogers’
applications were denied at the reconsideration level based on a finding that she
could perform medium work and was not disabled. Doc. 6-3 at 44–95.
On February 1, 2021, Rogers requested a hearing before an ALJ. Doc. 6-5 at
43–44.
2.

ALJ hearing

On September 7, 2021, the ALJ conducted a telephonic hearing on Rogers’
application for benefits. Doc. 6-3 at 48–49.
Rogers testified that she had moved in with her father and sister because they
helped her every day with household chores and with childcare. Doc. 6-3 at 52.
Rogers testified that she had good days and bad days, with about three good days
per week, and that she could do things like prepare meals and do household chores
on good days, but still had difficulty. Doc. 6-3 at 53. Rogers testified that the day
that she had her consultative evaluation with Dr. Bready was a good day. Doc. 6-3
at 54. She testified that she had about four bad days per week and on her bad days
she stayed in bed all day and could not do any chores because she was nauseated,
vomiting, and in pain. Doc. 6-3 at 54.
Rogers testified that she had a history of abdominal surgeries, with 14
abdominal surgeries and 34 surgeries in total. Doc. 6-3 at 55, 60–61. She testified
10

that she had back pain and had trouble understanding and following instructions, as
well as trouble focusing due to ADHD. Doc. 6-3 at 58–59. She testified that she
had excessive daytime sleepiness that caused problems driving. Doc. 6-3 at 59–60.
She testified that she was in constant pain at a level that ranged anywhere from about
a 5 out of 10 to an 8 or 9 out of 10. Doc. 6-3 at 61–62. She testified that she took
pain medication that had side effects including drowsiness. Doc. 6-3 at 62.
Vocational Expert (VE) Robert Piper then testified that a hypothetical
individual with Rogers’ age, education, work experience, and RFC (residual
functional capacity) would not be able to perform Rogers’ past relevant work. Doc.
6-3 at 66–67. However, VE Piper testified that such a hypothetical individual with
the limitations posed by the ALJ could perform jobs classified as medium work that
existed in significant numbers in the national economy. Doc. 6-3 at 67–68. VE
Piper testified that an individual could not take unscheduled breaks every day or
miss two or more days of work per month and remain employed. Doc. 6-3 at 68–
69.
3.

ALJ decision

On October 6, 2021, the ALJ entered an unfavorable decision. Doc. 6-3 at
22–39. The ALJ found that Rogers “has not been under a disability within the
meaning of the Social Security Act from October 1, 2017, through the date of this
decision.” Doc. 6-3 at 26.
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In the decision, the ALJ applied the five-part sequential test for disability (see
20 C.F.R. §§ 404.1520(a), 416.920(a); Winschel, 631 F.3d at 1178). Doc. 6-3 at 26–
27. The ALJ found that Rogers met the insured status requirements through March
31, 2021, and had not engaged in substantial gainful activity since October 1, 2017,
the alleged onset date. Doc. 6-3 at 28. The ALJ found that Rogers had severe
impairments of Peutz-Jeghers syndrome, hypertension, anemia, an attention deficit
hyperactivity disorder, depression, anxiety, and a somatic symptom disorder. Doc.
6-3 at 28. The ALJ also found that Rogers suffered from non-severe impairments of
lumbar radiculopathy, muscle spasms, restless leg syndrome, joint problems, carpal
tunnel syndrome, and chronic renal stones. Doc. 6-3 at 28–29. The ALJ found that
the record showed that Rogers’ complaints and diagnoses of fibromyalgia did not
qualify as a medically determinable impairment. Doc. 6-3 at 29. In analyzing the
severity of Rogers’ non-severe impairments, the ALJ included a brief summary of
the consultative examination results from Dr. Bready. Doc. 6-3 at 28. The ALJ
determined that Rogers did not have an impairment or combination of impairments
that met or medically equaled the severity of one of the impairments listed in the
applicable Social Security regulations. Doc. 6-3 at 29–31.
The ALJ determined Rogers’ RFC, finding that Rogers had the capacity to
perform “medium work” as defined in the applicable regulations, except that Rogers
could frequently balance, stoop, kneel, crouch, and crawl, could frequently climb
12

ramps and stairs, should avoid climbing ladders, ropes, and scaffolds, should avoid
unprotected heights, could have occasional interaction with the public, coworkers,
and supervisors, and could handle occasional changes in work setting. Doc. 6-3 at
31–32.
In making the RFC finding, the ALJ “considered all symptoms and the extent
to which these symptoms can reasonably be accepted as consistent with the objective
medical evidence and other evidence,” according to the requirements of 20 C.F.R.
§ 404.1529 and SSR (Social Security Ruling) 16-3p. Doc. 6-3 at 32. The ALJ also
stated that the ALJ had “fully” considered the medical opinions and prior
administrative medical findings. Doc. 6-3 at 32.
The ALJ provided a summary of Rogers’ alleged inability to work and her
testimony about her limitations. Doc. 6-3 at 32–33. The ALJ applied the pain
standard and determined that Rogers’ medically determinable impairments could
reasonably be expected to cause some of her alleged symptoms, but that her
statements concerning the intensity, persistence, and limiting effects of her
symptoms were “not entirely consistent with the medical evidence and other
evidence in the record for the reasons explained in this decision.” Doc. 6-3 at 33.
The ALJ then summarized Rogers’ medical records regarding her physical
impairments, including a discrete paragraph summarizing in detail the report from
the September 2020 consultative examination of Dr. Eric Bready. Doc. 6-3 at 34.
13

The ALJ then analyzed and addressed the “specific physical opinion
evidence.” Doc. 6-3 at 34. The ALJ found that physical opinions that were
submitted by two agency consultants were “persuasive” because “they are both well
supported by specific evidentiary examples, consistent with the evidence available
at that time, and are generally consistent with the overall evidence of record,
including evidence submitted later.” Doc. 6-3 at 34.
The ALJ then addressed Dr. Bready’s opinion and stated, in total:
The undersigned also notes that the report from Dr. Bready’s September
2020 consultative examination includes an opinion that the claimant
has limitations but is able to stand, sit, and walk continuously in an
eight-hour workday (Exhibit 31F). Although noting limitations and
then indicating that the claimant is able to continuously sit, stand, and
walk appears internally inconsistent. However, from a physical
standpoint, this opinion paints a picture of the claimant’s broad range
of physical abilities. Accordingly, it is somewhat persuasive.
Doc. 6-3 at 34–35.
The ALJ then moved on to an examination of Rogers’ mental impairments,
summarizing the medical records of her mental complaints. 1 Doc. 6-3 at 35–36. The
ALJ considered the mental opinion evidence and found that one agency opinion was
“somewhat persuasive” because there was “no evidence in the record” to support
specific limitations that were not consistent with other examination findings, that
one agency opinion was “persuasive” because it was “well supported by specific
The Commissioner acknowledges in briefing that Dr. Bready did not provide a
medical opinion regarding Rogers’ mental impairments. Doc. 10 at 14–15.
1

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evidentiary examples, consistent with the evidence available at the time, and
generally consistent with the overall evidence of record,” and that the opinion of Dr.
Rogers was “not persuasive” because it was “not supported by Dr. Rogers’ relatively
normal mental status examination” and was “inconsistent with the other relatively
normal mental status examinations in the record.” Doc. 6-3 at 36–37.
The ALJ found that the overall evidence in the record did not show a disabling
loss of function. Doc. 6-3 at 37. The ALJ found that Rogers was unable to perform
any past relevant work, but that—considering Rogers’ age, education, work
experience, and RFC, along with the testimony of the VE—there existed jobs in
significant numbers in the national economy that Rogers could perform. Doc. 6-3
at 37–38. Accordingly, the ALJ found that Rogers had not been disabled, as defined
in the Social Security Act, from October 1, 2017 (the alleged onset date), through
the date of the decision. Doc. 6-3 at 38–39.
4.

Appeals Council decision

Rogers belatedly requested review of the ALJ’s decision from the Appeals
Council. Doc. 6-3 at 13–18. Rogers submitted a good-cause letter explaining the
delay (Doc. 6-5 at 2–5), and the Appeals Council allowed Rogers more time to
submit information for her appeal. Doc. 6-3 at 8.
On July 14, 2022, the Appeals Council denied Rogers’ request for review of
the ALJ’s October 6, 2021 decision, finding no reason to review the ALJ’s decision.
15

Doc. 6-3 at 2–6. Because the Appeals Council found no reason to review the ALJ’s
decision, the ALJ’s decision became the final decision of the Commissioner.
DISCUSSION
Having carefully considered the record and briefing, the court will reverse and
remand because the ALJ improperly evaluated Dr. Bready’s opinion, and the error
was not harmless. The court will pretermit consideration of the other issues that
Rogers raised in this appeal.
I.

The legal standard for evaluating a medical opinion requires an ALJ to
assess the supportability and consistency of the opinion.
The legal standard for evaluating a medical opinion requires an ALJ to assess

the supportability and consistency of the medical opinion. The SSA has revised its
regulations on the consideration of medical opinions for all claims filed on or after
March 27, 2017—like the claim in this case. Under those revised regulations, an
ALJ need not “defer or give any specific evidentiary weight, including controlling
weight, to any medical opinion(s),” including the opinion of a treating or examining
physician. 20 C.F.R. §§ 404.1520c(a), 416.920c(a). And the Eleventh Circuit has
concluded that the SSA’s new regulations validly abrogated the so-called “treatingphysician rule,” such that an ALJ no longer is required to defer to the medical
opinion of a treating physician. See Harner v. Social Sec. Admin., Comm’r, 38 F.4th
892 (11th Cir. 2022).
Instead, the ALJ considers the persuasiveness of a medical opinion according
16

to the following five factors: (1) supportability; (2) consistency; (3) the relationship
with the claimant, including the length of the treatment relationship, the frequency
of examinations, and the purpose and extent of the treatment relationship;
(4) specialization; and (5) other factors, including evidence showing that the medical
source has familiarity with other evidence or an understanding of the SSA’s policies
and evidentiary requirements. 20 C.F.R. §§ 404.1520c(c), 416.920c(c).
Supportability and consistency are the most important factors, and the ALJ
must explain how the ALJ considered those factors. 20 C.F.R. §§ 404.1520c(b)(2),
416.920c(b)(2).
“Supportability” requires an ALJ to consider that “[t]he more relevant the
objective medical evidence and supporting explanations presented by a medical
source are to support his or her medical opinion[] or prior administrative medical
finding[], the more persuasive the medical opinion[] or prior administrative medical
finding[] will be.” 20 C.F.R. §§ 404.1520c(c)(1), 416.920c(c)(1).
“Consistency” requires an ALJ to consider that “[t]he more consistent a
medical opinion[] or prior administrative medical finding[] is with the evidence from
other medical sources and nonmedical sources in the claim, the more persuasive the
medical opinion[] or prior administrative medical finding[] will be.” 20 C.F.R.
§§ 404.1520c(c)(2), 416.920c(c)(2).
The ALJ may explain how the ALJ considered the other factors, but the ALJ
17

is not required to do so. 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2).
II.

The ALJ did not adequately explain the consideration of the consistency
of Dr. Bready’s opinion, as required by the applicable regulations.
Here, the ALJ’s decision shows that under the new, revised regulations the

ALJ did not adequately consider and explain the consistency of Dr. Bready’s
opinion. While the ALJ (arguably) may have adequately explained the consideration
of the supportability factor, the ALJ did not explain the consideration of the
consistency factor at all.
In this case, Dr. Bready examined Rogers and noted in his examination notes
that she suffered from several chronic conditions, including chronic pain that was
only “somewhat controlled” and conditions like chronic nausea, vomiting, and
kidney stones. Doc. 6-15 at 18–24. Dr. Bready opined that, based on Rogers’
medical history and his examination findings, Rogers “has limitations” and opined
that—while she functionally “seem[ed] well and able to work” during her
examination—she also previously had undergone several significant abdominal
surgeries and was at risk for continued complications. Doc. 6-15 at 23. Dr. Bready
opined that “[f]rom a pain standpoint she has limitation in standing and is able to
stand continuously in an 8 hour workday,” that “[s]he has limitation in sitting and is
able to sit continuously in an 8 hour workday,” that “she has limitation in walking
and is able to walk continuously in an 8 hour workday,” and that “she has limitation
with concentration in the setting of ADD.” Doc. 6-15 at 23.
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According to the applicable regulations, the ALJ had to consider and explain
the supportability and consistency of Dr. Bready’s opinion.
§§ 404.1520c(c)(1), 416.920c(c)(1).

20 C.F.R.

The ALJ found Dr. Bready’s opinion

“somewhat persuasive.” Doc. 6-3 at 35. As noted above, the ALJ’s explanation of
the persuasiveness of Dr. Bready’s opinion consists, in its entirety, of the following:
The undersigned also notes that the report from Dr. Bready’s September
2020 consultative examination includes an opinion that the claimant
has limitations but is able to stand, sit, and walk continuously in an
eight-hour workday (Exhibit 31F). Although noting limitations and
then indicating that the claimant is able to continuously sit, stand, and
walk appears internally inconsistent. However, from a physical
standpoint, this opinion paints a picture of the claimant’s broad range
of physical abilities. Accordingly, it is somewhat persuasive.
Doc. 6-3 at 34–35.
The ALJ’s assessment of Dr. Bready’s opinion and decision to find that
opinion “somewhat persuasive” lack any clear consideration of Dr. Bready’s own
examination findings or of the rest of the record. Arguably, notwithstanding that the
ALJ did not use any variation of the term “supportability,” the ALJ addressed the
supportability of Dr. Bready’s opinion by finding the internal inconsistency in the
opinion. As discussed above, consideration of the supportability factor requires an
ALJ to analyze the medical evidence and supporting explanations of the source
offering a medical opinion, such that the more relevant the supporting evidence is,
the more persuasive the medical opinion will be. 20 C.F.R. §§ 404.1520c(c)(1),
416.920c(c)(1). The ALJ does not mention Dr. Bready’s examination findings in
19

the discussion of the persuasiveness of the opinion, but does flag an inconsistency
in Dr. Bready’s explanation. Doc. 6-3 at 35. Further, earlier in the ALJ’s decision,
the ALJ did include more complete, though isolated, summaries of Dr. Bready’s
examination and report. Doc. 6-3 at 28, 34.2 Thus (at least arguably), the ALJ
adequately addressed the supportability of Dr. Bready’s opinion.
Nevertheless, the ALJ’s assessment of Dr. Bready’s opinion in the ALJ’s
decision gives no indication that the ALJ considered the consistency of the opinion,
much less any adequate explanation regarding the consistency factor. See 20 C.F.R.
§§ 404.1520c(c)(1), 416.920c(c)(1). Again (as discussed above), consideration of
the consistency factor requires the ALJ to compare the medical opinion to “the
“The record also includes the report from the September 2020 consultative
examination performed by Eric Bready, M.D. (Exhibit 31F). At that time, the
claimant complained of Peutz-Jeghers syndrome, chronic pain, hypertension,
anemia, and problems walking, standing, and lifting. The report also notes, however,
that she denied using an ambulatory device and was able to climb stairs and turn a
doorknob. Dr. Bready’s report also details many relatively normal examination
findings, including normal blood pressure readings, ambulation with a normal gait
and without use of ambulation aids, no back spasms, negative straight leg raise tests,
normal musculoskeletal system range of motion, lungs that were clear to
auscultation, normal breathing, a regular heart rate and rhythm, no organomegaly,
and demonstrated abilities to walk, tandem walk, squat and rise, bend to touch her
toes, and get in/out of a chair and on/off the examination table without difficulty
(Exhibit 31F).” Doc. 6-3 at 34; see also Doc. 6-3 at 28 (“Likewise, although the
report from the September 2020 consultative examination notes a positive straight
leg raise test for discomfort, it also details demonstrated abilities to tandem walk,
squat and rise, bend to touch her toes, get in and out of a chair, get on and off the
examination table, and ambulate with a normal gait and no ambulatory aid (Exhibit
31F). The claimant further noted at the consultative examination that she was able
to climb stairs and turn a doorknob (Exhibit 31F).”).
2

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evidence from other medical sources and nonmedical sources in the claim,” such
that the more consistent the opinion is with other evidence in the record, the more
persuasive the opinion will be. 20 C.F.R. §§ 404.1520c(c)(2), 416.920c(c)(2). The
paragraph in the ALJ’s decision finding Dr. Bready’s opinion somewhat persuasive
includes no reference to any other record evidence; rather that paragraph notes
inconsistency within Dr. Bready’s own opinion and finds that the opinion itself
“paints a picture of [Rogers’] broad range of physical abilities.” Doc. 6-3 at 34–35.
In addition, while the ALJ does include two summaries of Dr. Bready’s
examination findings elsewhere in the decision, both of those summaries address Dr.
Bready’s findings in isolation and provide no discussion, explanation, analysis, or
comparison of the consistency of Dr. Bready’s findings and opinion with any other
evidence in the record. See Doc. 6-3 at 28, 34.
Likewise, the other citations to Dr. Bready’s examination notes elsewhere in
the ALJ’s decision are included in string citations or in analyzing the mental opinion
evidence, and do not discuss the consistency of Dr. Bready’s physical opinion with
respect to the other evidence in the record. See Doc. 6-3 at 28–31, 34–36.
Tellingly, the ALJ’s assessment of other medical opinions in the ALJ’s
decision demonstrates that the ALJ did not include any adequate explanation of
consistency with respect to Dr. Bready’s opinion. For example, the ALJ explicitly
found that physical opinions from two agency consultants were “persuasive”
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because “they are both well supported by specific evidentiary examples, consistent
with the evidence available at that time, and are generally consistent with the overall
evidence of record, including evidence submitted later.” Doc. 6-3 at 34.
With respect to mental opinions, the ALJ found that one mental opinion from
an agency consultant was “somewhat persuasive” because there was “no evidence
in the record” to support specific limitations that were not consistent with other
examination findings (Doc. 6-3 at 36), and found that another mental opinion from
an agency consultant was “persuasive” because it was “well supported by specific
evidentiary examples, consistent with the evidence available at the time, and
generally consistent with the overall evidence of record” (Doc. 6-3 at 36). The ALJ
found that the mental opinion of Dr. Rogers was “not persuasive” because it was
“not supported by Dr. Rogers’ relatively normal mental status examination” and was
“inconsistent with the other relatively normal mental status examinations in the
record.”

Doc. 6-3 at 37.

Each of those assessments in the ALJ’s decision

demonstrates that the ALJ considered and explained the supportability and
consistency of the respective medical opinion, all of which highlights the absence of
any discussion of the ALJ’s consideration of the consistency factor with regard to
Dr. Bready’s opinion.
The Commissioner argues that the ALJ properly articulated findings as to
supportability and consistency because the ALJ noted that Dr. Bready’s opinion was
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internally inconsistent, and because “the ALJ also considered that Dr. Bready’s
opinion was inconsistent with the objective evidence from other providers.” Doc.
10 at 13–14. As discussed above, the ALJ’s mention of the internal inconsistency
in Dr. Bready’s opinion arguably provides an adequate explanation of the ALJ’s
assessment of the supportability factor. See supra.
But, on the consistency analysis, the Commissioner points only to findings in
the record that the ALJ cited elsewhere in the decision, and that—to be sure—the
ALJ might have considered with regard to the consistency of Dr. Bready’s opinion.
What the Commissioner does not (and cannot) identify anywhere in the ALJ’s
decision—much less in the paragraph addressing the persuasiveness of Dr. Bready’s
opinion—is any point at which the ALJ actually addresses how Dr. Bready’s opinion
compares or relates to other evidence in the record. Without more, this court cannot
infer the consistency analysis that is missing from the ALJ’s decision. See, e.g.,
Baker v. Commissioner of Soc. Sec., 384 F. App’x 893, 896 (11th Cir. 2010) (“[T]the
Supreme Court has held that a court may not accept appellate counsel’s post hoc
rationalizations for agency actions.” (citing FPC v. Texaco Inc., 417 U.S. 380, 397
(1974))).
Furthermore, the ALJ’s lack of assessment of the consistency factor on Dr.
Bready’s opinion was not harmless. As a preliminary matter, the ALJ’s finding that
Dr. Bready’s opinion was “somewhat persuasive,” without any apparent analysis of
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the consistency factor, leaves the court guessing as to what aspects of Dr. Bready’s
opinion the ALJ found persuasive and how the ALJ may have accounted for those
persuasive aspects of the opinion in assessing Rogers’ RFC. See, e.g., Winschel, 631
F.3d at 1179 (“[W]hen the ALJ fails to ‘state with at least some measure of clarity
the grounds for his decision,’ we will decline to affirm ‘simply because some
rationale might have supported the ALJ’s conclusion.’” (quoting Owens v. Heckler,
748 F.2d 1511, 1516 (11th Cir. 1984))). Without more, the ALJ’s decision does not
include “sufficient reasoning” for the court to determine that the ALJ properly
assessed Rogers’ RFC. See, e.g., Cornelius, 936 F.2d at 1145–46 (the ALJ’s “failure
to . . . provide the reviewing court with sufficient reasoning for determining that the
proper legal analysis has been conducted mandates reversal”).
Nor can the court in this case conclude that substantial evidence supported the
ALJ’s RFC determination. That is because this court cannot “decide the facts anew,
reweigh the evidence,” or substitute its own judgment for that of the Commissioner,
which means that the court cannot independently assess how Dr. Bready’s opinion
should (or should not) have impacted the ALJ’s determination of Rogers’ RFC or
the ALJ’s conclusion to deny benefits. Winschel, 631 F.3d at 1178 (citation and
quotation marks omitted); see also Armstrong v. Commissioner of Soc. Sec., 546 F.
App’x 891, 896 (11th Cir. 2013) (reversing and remanding where it was “unclear
whether the ALJ applied the proper legal standards or whether [the ALJ’s] finding
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at step three was supported by substantial evidence”).
For instance, Dr. Bready’s opinion noted that, while Rogers appeared well on
the date of her examination, she was “at risk for multiple malignancies and
complications related to adhesions from prior surgeries.” Doc. 6-15 at 23. The court
cannot say whether or how the ALJ assessed this aspect of Dr. Bready’s opinion in
relation to the other record evidence of Rogers’ prior surgeries, or whether the ALJ
considered that this aspect of the opinion may suggest that Rogers may have been
required to miss more than two days of work per month, which—based on VE
Piper’s testimony, Doc. 6-3 at 68–69—may have precluded employment. See Doc.
6-3 at 68–69. In this regard, the record does include ample evidence of Rogers’ prior
surgeries and pain. See, e.g., Doc. 6-8 at 5–7, 8–10, 18–22, 25, 46–47, 51, 72, 84,
98–106, 117, 122–23, 136; Doc. 6-9 at 3, 10, 24, 18, 35, 48, 167; Doc. 6-11 at 57,
82, 87, 113; Doc. 6-13 at 23, 102; Doc. 6-14 at 22, 108, 132; Doc. 6-15 at 29, 123,
127. Thus, the court cannot conclude that the absence of a consistency analysis was
harmless where an assessment of the persuasiveness of Dr. Bready’s opinion relative
to the other record evidence—which is required by the regulations—may or may not
have resulted in a finding of disability. See, e.g., Clark v. Kijakazi, No. 5:20-CV105, 2022 WL 509671, at *6 (S.D. Ga. Jan. 31, 2022), report and recommendation
adopted, 2022 WL 509114 (Feb. 18, 2022) (collecting cases).
Finally, this memorandum opinion should not be read to include any
25

conclusion or even commentary on whether, on remand, the ALJ should find Dr.
Bready’s opinion persuasive or not. Indeed, there may be an easy fix for the
Commissioner on remand, as there may be ample evidence to support the
determination that Dr. Bready’s opinion is partially persuasive.

But without

sufficient analysis and explanation of the consistency factor as applied to Dr.
Bready’s opinion (according to the proper legal standards), this court cannot
appropriately exercise meaningful judicial review of the ALJ’s decision on the
question whether the ALJ’s determination of the persuasiveness of Dr. Bready’s
opinion was supported by substantial evidence. See Lewis, 125 F.3d at 1439.
III.

The court pretermits consideration of the other issues that Rogers raised
in this appeal.
Because the court will reverse and remand for further consideration of Dr.

Bready’s opinion (see supra Part II), the court pretermits consideration of the other
issues that Rogers raised in this appeal. As noted above, Rogers also has argued that
the ALJ erred by failing to properly evaluate Rogers’ symptoms and limitations,
improperly considering Rogers’ daily activities and limitations, and finding that
Rogers’ fibromyalgia was not a medically determinable impairment. Doc. 9.
But the court need not—and will not—reach these issues. See Demenech v.
Secretary of Dep’t of HHS, 913 F.2d 882, 884 (11th Cir. 1990) (per curiam) (court
need not consider other issues when remanding); accord Jackson v. Bowen, 801 F.2d
1291, 1294 n.2 (11th Cir. 1986) (per curiam).
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CONCLUSION
For the reasons stated above (and pursuant to 42 U.S.C. § 405(g)), the
Commissioner’s decision is REVERSED and REMANDED for further
proceedings consistent with this memorandum opinion. The court separately will
enter final judgment.
DONE and ORDERED this August 29, 2024.

_________________________________
NICHOLAS A. DANELLA
UNITED STATES MAGISTRATE JUDGE

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