Tumlin v. Commissioner of Social Security

Filing 35

ORDER rejecting 32 REPORT AND RECOMMENDATION. The decision of the Commissioner is REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. § 405(g). The Clerk is directed to ENTER JUDGMENT in favor of Plaintiff and thereafter CLOSE the file. See Order for details. Signed by Judge John L. Badalamenti on 3/31/2021. (NM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
SANDRA GAYLE TUMLIN,
Plaintiff,
vs.

Case No. 2:19-cv-00457-JLB-NPM

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
_________________________________
ORDER
Plaintiff Sandra Gayle Tumlin applied for disability insurance benefits on
January 15, 2018, alleging disability beginning November 24, 2016.

After her

application was denied originally and on reconsideration, Ms. Tumlin requested a
hearing before an administrative law judge (“ALJ”), which took place in Fort Myers,
Florida on January 4, 2019. By written decision dated October 8, 2019, the ALJ found
Ms. Tumlin was not disabled. (Doc. 19-2.) On May 8, 2019, the Social Security
Appeals Council denied Ms. Tumlin’s request for review, and Ms. Tumlin
subsequently filed this action seeking reversal of the Commissioner’s final decision
denying disability benefits.

The Magistrate Judge filed a Report and

Recommendation (“R&R”) on September 25, 2020, recommending the Commissioner’s
decision be affirmed. (Doc. 32.) Ms. Tumlin filed objections to the R&R on October
9, 2020 (Doc. 33), and the Commissioner filed a response to those objections on
October 22, 2020 (Doc. 34). The matter is now before the undersigned Judge.

If objections to a report and recommendation are filed, the district judge must
“make a de novo determination of those portions of the report or specified proposed
findings or recommendations to which objections are made.” 28 U.S.C. § 636(b)(1).
The district court “may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” Id. After a careful review of the
record, the Court agrees with Ms. Tumlin that the ALJ’s decision is not supported by
substantial evidence. Accordingly, the Court declines to adopt the R&R, and, for the
reasons discussed below, reverses the decision of the Commissioner and remands the
case to the Social Security Commission for further proceedings.
BACKGROUND
A.

MEDICAL DIAGNOSES AND SYMPTOMS

At the time of her administrative hearing, Ms. Tumlin was forty-eight years
old with an eighth-grade education and past work experience as a waitress and fast
food worker. She was living with her boyfriend and had been unemployed since
November 2016. Ms. Tumlin alleges that she is disabled due to mental health issues. 1
She suffers from depression, anxiety, panic attacks, and agoraphobia. (Doc. 19-2 at

Ms. Tumlin’s appeal from the Commissioner’s denial of benefits raised issues related
to her alleged physical limitations as well as mental limitations. But her objections
before this Court challenge only the Magistrate Judge’s analysis of her mental
limitations. Accordingly, the Court need not address the physical limitations issues
discussed in the R&R. As to those issues, the R&R’s recommendations are neither
accepted nor rejected, allowing for a full review of the record upon remand to the ALJ.
See Demenech v. Sec’y of the Dep’t of Health & Human Servs., 913 F.2d 882, 884
(11th Cir. 1990) (per curiam) (concluding that certain arguments need not be
addressed when the case would be remanded on other issues).
1

2

47.) She has been diagnosed by mental health specialists with various disorders,
including depression, bipolar disorder, anxiety disorder, and post-traumatic stress
disorder (PTSD).

(Id. at 55-56.)

She takes prescription medications for these

disorders, including Valium for sleep, two different doses of Lamictal for anxiety, two
different doses of Wellbutrin for depression, and Abilify for bipolar disorder. (Id. at
58-59.) The medications help her “[s]omewhat, [but] not completely,” and her doctors
are “still changing medications around [ ] to try to get it right.”

(Id. at 59.)

Ms. Tumlin sees her therapist once a week, and she sees a psychiatric nurse
practitioner for prescription management once a month. (Id. at 65.)
At the hearing before the ALJ, Ms. Tumlin testified to extreme difficulty
staying focused or concentrating, such that she could not read more than one page of
a book without “zon[ing] out where [she] [is] just staring straight forward for no
reason.” (Id. at 57.) She had not “driven [a car] in over a year” because she “space[d]
out” when she was behind the wheel” (id. at 60), and she could not watch a thirtyminute television show because she could not stay focused that long (id. at 62-63).
She testified to keeping a chart on her refrigerator to keep track of certain daily tasks
she otherwise would forget to do, like taking a shower, doing laundry, and reading
one page of a book per day. (Id. at 60-61.)
Ms. Tumlin testified that, as a result of “[e]xtreme[ ]” abuse and trauma she
experienced in her past, she had “memories or flashbacks” on a daily basis. (Id. at
62.) She testified to having crying spells at least every other day “for no reason,” and
panic attacks lasting up to thirty minutes three times or more per week. (Id. at
3

60-63.) She described the panic attacks as “hyperventilating,” and feeling like she
could not breath, “like something is choking [her]” and she starts “shaking.” (Id. at
60.) She suffers anxiety from being around other people even if she is at home and
the other people are friends or relatives just visiting for short periods of time. (Id.)
Ms. Tumlin testified that she was fired from her last job as a waitress in
November 2016 for having too many panic attacks while on the job. (Id. at 61-62.)
Since then, she never wants to leave the house because she avoids being around
people by simply staying home. (Id. at 60, 63-64.) She testified that it has been over
two years since she has gone anywhere by herself, and that, even with her boyfriend
by her side, she has left the house only to go to doctor’s appointments and to “grocery
shop after midnight.” (Id. at 64.) She does not believe she could work another job as
a server because “the panic attacks just come out of [sic] no reason. Sometimes they
come out of memories or thoughts that are going through my head. . . . [T]he therapist
said that that was normal.” (Id. at 64-65.)
B.

MEDICAL RECORDS

Ms. Tumlin’s medical records show that she has been in individual therapy on
a weekly basis since at least November 2017. An assessment on November 21, 2017, 2
indicates that Ms. Tumlin reported a history of diagnosed anxiety and depression

The assessment was taken by Shantell Pepe of Crossroads Behavioral Center.
Ms. Pepe also prepared the progress mental health notes from this time period.
Ms. Pepe’s name appears without any title, but the Court infers from the records that
she was Ms. Tumlin’s treating therapist at the time.

2

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dating back several years; that she received out-patient mental health therapy from
January 2017 through May 2017 when she lived in Georgia; that she has a past
history of rape and physical and emotional abuse by an ex-husband; and that she has
no memory prior to the age of twelve (which later medical records indicate is the age
when the rape occurred). (Doc. 19-8 at 58-59 (Ex. 4F/17-18).) The report indicates
past diagnoses of major depressive disorder, generalized anxiety disorder, and PTSD.
(Id.)
A week later, Ms. Tumlin saw a psychiatric nurse practitioner (Max Belot,
ARNP), who reported that she appeared anxious but otherwise normal. (Id. at 55
(Ex. 4F/14).)

During the session, they discussed Ms. Tumlin’s symptoms of

depression, mania, generalized anxiety, obsessive-compulsive disorder, PTSD, and
specific phobias (crowds and claustrophobia). (Id.)
On December 1, 2017, a progress mental health note indicates that Ms. Tumlin
“was tearful and observed to have a somber mood,” and that she “was unable to
articulate the reason for her sadness.” (Id. at 54 (Ex. 4F/13).)

A medication

management report from an appointment with Nurse Belot on December 11, 2017,
diagnoses Ms. Tumlin with major depressive disorder (recurrent and moderate);
generalized anxiety disorder, and PTSD. (Id. at 51 (Ex. 4F/10).) On December 20,
2017, a progress mental health note reports that Ms. Tumlin presented with an
affect/mood that was “typical … for this patient.” (Id. at 49 (Ex. 4F/8).) She reported
physical violence from her first husband that occurred when she was approximately

5

15-20 years old, and that one of the encounters was “particularly brutal and
[Ms. Tumlin] reports almost dying.” (Id.)
On January 5, 2018, Ms. Tumlin reported to her therapist that she had applied
for two jobs but was “anxious about the idea of meeting new people.” (Id. at 48 (Ex.
4F/7).)

On January 16, 2018, Nurse Belot described Ms. Tumlin’s affect as

“appropriate[ ],” her mood as “euthymic,” her speech as “normal,” and her insight and
judgment as “intact.” (Id. at 46 (Ex. 4F/5).) However, the same report also states
that “[t]he patient has major stress of medical illness in last 2 years”; that she is
diagnosed with major depressive disorder, generalized anxiety disorder, and PTSD;
that she takes at least four medications with consideration being given for a fifth; and
that her “clinical status” showed “[n]o improvement.” (Id. at 47 (Ex. 4F/6).)
On February 9, 2018, Ms. Tumlin’s mental health progress report states that
her affect and mood were “typical … for this patient”; she “presents in a cheerful
happy mood”; she reports “spending time writing poetry, knitting, and taking walks;
while she admits to periodic instances of irritability,” she “has been using a punching
bag to help with such anxiety”; and “she continues to have difficulty with focus and
attention which prevents her from reading books.”

(Id. at 45 (Ex. 4F/4).)

The

therapist saw “[s]ignificant improvement,” thought that “[s]ome progress [was]
apparent, and that Ms. Tumlin was “[m]aintaining past gains/stable.” (Id.) Mental
health progress reports from two and four weeks later (February 23, 2018 and March
2, 2018) are similar, except that they note Ms. Tumlin was informed that “her therapy

6

[with that therapist] would come to an end after March 9th,” and she had anxiety
about having a new therapist. (Id. at 43-44 (Ex. 4F/2-3).)
Ms. Tumlin transitioned to a new treatment center in March 2018. In a mental
health assessment on approximately April 4, 2018, Ms. Tumlin reported depression,
anxiety, and PTSD. (Doc. 9-11 at 43 (Ex. 13F/42).) 3 Her current symptoms included
“being anxious in the context of being overwhelmed, excessively worried, poor
concentration, sleep disturbance, irritable, and racing thoughts.” (Id.) She reported
physical symptoms, including nervousness, difficulty concentrating, and muscle
tension.

(Id.)

She reported a history of “limited-symptoms panic attacks” and

“recall[ed] one significant unprovoked panic attack, lasting approximately 5 minutes
where she feels she is shocking [sic].” Id. at 42 (Ex. 13F/41).) Her symptoms had
been present for several years ago, but had worsened in the last two months. (Id.)
She felt the medications were not working. (Id.) “[A]dditionally [she] expresse[d]
feeling low in energy, decreased interest in activities, guilt, worthlessness,
hopelessness, and difficulty sleeping.” (Id.) Ms. Tumlin reported that her symptoms
started “with depressive disorder since she was 14 and started drinking alcohol.
When she was 15, she got married and for 5 years was sexually, emotionally, and
physically abused. Currently she is experiencing vivid dreams and having flashbacks

It is difficult to discern from the way the medical notes were kept which medical
practitioner from Ms. Tumlin’s new therapy center made which comments in the
notes. But they were those of either Ms. Tumlin’s treating psychiatric nurse
practitioner, Garbriel Rivera Torres, or her treating therapist, Jeri Hosick.
3

7

about those past events.” (Id.)
Two weeks later, April 18, 2018, Ms. Tumlin reported improved depression,
but worsening anxiety, frequent irritability, and “paranoia, evidenced by the idea of
somebody watching her back.” (Id. at 37 (Ex. 13F/36).) Ms. Tumlin was reported as
being “comfortable speaking, [and] social communication [was] adequate.” (Id.) Her
listed diagnoses included major depressive disorder, chronic alcoholism in remission,
chronic post-traumatic stress disorder, and panic disorder. (Id. at 36 (Ex. 13F/35).)
Her mental status exam on this date indicates: “Intelligence: average.

Mood:

irritable.” (Id. at 38 (Ex. 13F/37).)
On June 11, 2018, Ms. Tumlin reported that, since the last assessment, she
had continuing depression, “worsening in the anxiety episodes, excessive worry,
restless, poor concentration, overwhelmed, try [sic] to avoid people since she starts
feeling bad. [She] report[ed] frequently irritable and mood change . . . [and] history
of paranoia, evidenced by the idea of somebody watching her back.” (Id. at 32 (Ex.
13F/31).) During the assessment, it was noted that she “was comfortable speaking,
[and her] social communication [was] adequate.” (Id.) Her mental status exam on
this date indicates:

“Behavior: guarded.

Speech: pressured. Perception:

Paranoia. Intelligence: average. Mood: sad and irritable. Affect: constricted.” (Id.
at 33 (Ex. 13F/32).)
On July 9, 2018, Ms. Tumlin reported that her medications were not working.
(Id. at 27 (Ex. 13F/26).) She reported that she was still depressed, and her anxiety
episodes were worsening.

(Id.)

She reported “excessive worry, restless, poor
8

concentration, overwhelmed, try[ing] to avoid people since she starts feeling bad[,]
frequently irritable and mood change to the point that she prefers being away from
people.” (Id.) There does not appear to be any mental status exam for this date.
On August 6, 2018, Ms. Tumlin reported that the medications were more
effective and that she noticed some improvement in her depression. (Id. at 22 (Ex.
13F/21).) However, she continued to report “symptoms of anxiety episodes, excessive
worry,” and she “present[ed] excessive worry, restless, poor concentration,
overwhelmed, try to avoid people since she starts feeling bad.” (Id.) Again, there does
not appear to be any mental status exam for this date.
Two additional medical reports for later sessions (September 10, 2018, October
1, 2018) with either the therapist or the nurse practitioner are similar to the above.
Ms. Tumlin reported at one of those sessions that “she does not trust anybody because
‘most people are not good persons.’” (Id. at 18 (Ex. 13F/17).) At another, she reported
“feeling better but at times she feels hyper and all over the place.” (Id. at 13 (Ex.
13F/12).) She did not think the medications were being fully effective; she was still
experiencing depression, but not as severe as before; she was still having anxiety
episodes but reduced in frequency; and she had not experienced episodes of paranoia
during the last three weeks. (Id. at 13-14 (Ex. 13F/12-13).) There does not appear to
be any mental status exams for these dates.
On November 21, 2018, Ms. Tumlin was seen by the psychiatric nurse “for
medication management” who noted that she reported “doing well with regiment.”
(Id. at 8 (Ex. 13F/7).) The nurse noted that Ms. Tumlin was “alert, oriented times 3,
9

calm, cooperative, forthcoming with organized thinking process. . . . Speech [was]
normal . . . Mood [was] entirely normal with no signs of depression or mood elevation.
Affect [was] appropriate [and] . . . congruent with Mood. There were no signs of
anxiety . . . [or] hallucinations.” (Id.)
The last medical note in Ms. Tumlin’s records is dated December 14, 2018. (Id.
at 3 (Ex. 13F/2).) Ms. Tumlin had stopped taking one of her medications “due [to] non
therapeutic response”; she denie[d] improvement [from] her depressed state”; and she
“report[ed] paranoia.”

(Id. at 5 (Ex. 13F/4).)

The psychiatric nurse noted that

Ms. Tumlin was “alert[,] oriented to all spheres, but tearful with depressed mood and
affect.” (Id.)
C.

MENTAL FUNCTIONING ASSESSMENTS

The ALJ considered two medical assessments of Ms. Tumlin’s mental health
limitations that were part of the record. 4
1.

STATE ASSESSMENT (RECONSIDERATION)

A mental functioning assessment was conducted by the state psychologist in
August 2018. (Doc. 19-3 at 14 (Ex. 3A).) At this time, Ms. Tumlin reported “[e]xtreme
dramatic PTSD cause [sic] depression and anxiety and concentration to be worse [sic]
and will take some time to treat. [I]nsomnia is up and down[,] mental health is still

The ALJ gave “little weight” (Doc. 19-2 at 31) to a third assessment—the initial
assessment performed by the state examiner in June 2018—and so the Court will not
discuss it.
4

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trying to adjust [to] medication to help some of these things. Panic and anxiety more
likely to happen around to[o] many people.” (Id. at 15 (Ex. 3A/2).)
The assessment report found severe impairments in the following categories:
(1) Depressive, Biopolar and Related Disorders, (2) Anxiety and ObsessiveCompulsive Disorders, and (3) Trauma-and Stressor-Related Disorders. (Id. at 20
(Ex. 3A/7).) The report concluded that Ms. Tumlin had “severe mental impairments
. . . with limitations exacerbated by psychosocial stressors.” (Id. at 21, 26 (Ex. 3A/8,
13).) The report found that Ms. Tumlin’s statements about the intensity, persistence,
and functionally limiting effects of the symptoms [were] substantiated by the
objective medical evidence alone.” (Id. at 22 (Ex. 3A/9).) However, the report noted
the absence of “a medical opinion from any medical source.” (Id.) Thus, [b]ased on
the totality of evidence” before the examiner at that time, the examiner found that
Ms. Tumlin was only moderately limited in her ability to perform in most categories
of mental functioning—including “ability to interact appropriately with the general
public,” “ability to accept instructions and response appropriately to criticism from
supervisors,” and “ability to get along with coworkers or peers.” (Id. at 25 (Ex.
3A/12).) Based on only moderate limitations, the report concludes that Ms. Tumlin
was capable of performing “simple routine task[s].” (Id.)
2.

DR. HOSICK’S ASSESSMENT

On October 4, 2018, approximately two months after the medical assessment
prepared by the state psychologist, a Mental Residual Functional Capacity (“MRFC”)

11

Assessment was completed by Dr. Jeri Hosick. (Doc. 19-10 at 31 (Ex. 11F).)5 The
Assessment indicates that Ms. Tumlin has “Marked” limitations (defined as 33-48%
of the time) in four categories of mental functioning. (Id. at 31-32 (Ex. 11F/2-3).)6 It
further indicates that Ms. Tumlin has “Extreme” limitations (defined as 49-64% of
the time) in two other categories of mental functioning.

(Id.) 7

Finally, the

Assessment finds that Ms. Tumlin has “Very Extreme” limitations (defined as “65%
of the time (Catastrophic and Very Severe”)) in eleven categories of mental
functioning. (Id.) 8

The Commissioner contends the evidence does not support Ms. Tumlin’s assertion
that Dr. Hosick was her treating therapist, noting that there are no treatment notes
from Dr. Hosick in the record. (Doc. 28 at 21 n.11.) The Court agrees that those
notes, if they exist and were obtainable, would have been beneficial to the ALJ’s
review here. Nevertheless, the record adequately demonstrates that Dr. Hosick
treated Ms. Tumlin, as shown by the numerous references in the medical records to
upcoming therapy sessions with Dr. Hosick (from approximately April 5, 2018
through at least December 14, 2018, one month before Ms. Tumlin’s disability
hearing). (See Doc. 19-7 at 351, 375, 395, 423.) Ms. Tumlin also testified that she
saw her therapist—“Jerry”—once a week. (Doc. 19-2 at 65.)
5

The “marked” limitations categories included: (1) ability to understand and
remember very short and simple instructions; (2) ability to carry out detailed
instructions; (3) ability to work in coordination with or proximity to others without
being distracted by them; and (4) ability to accept instructions and respond
appropriately to criticism from supervisors. (Doc. 19-10 at 31-32 (Ex. 11F/2-3).)
6

The two categories of mental functioning in which Ms. Tumlin’s limitations were
said to be “extreme” included: (1) ability to interact appropriately with the general
public, and (2) ability to set realistic goals or make plans independently of others.
(Doc. 19-10 at 31-32 (Ex. 11F/2-3).)
7

The eleven categories of mental functioning in which Ms. Tumlin’s limitations were
said to be “very extreme” included: (1) ability to understand and remember detailed
instructions; (2) ability to carry out detailed instructions; (3) ability to maintain
attention and concentration for extended periods; (4) ability to perform activities
12
8

Dr. Hosick’s Assessment also includes written comments. Dr. Hosick notes
that Ms. Tumlin has been diagnosed with Bipolar II disorder, panic disorder with
agoraphobia, and chronic PTSD. (Id. at 32 (Ex. 11F/3).) She opines that these mental
disorders “severely impair [Ms. Tumlin’s] capacity to respond appropriately
emotionally and cause significant cognitive impairment,” and that “[h]er
panic/agoraphobia prevents her from working in a social setting.” (Id.)
D.

THE ALJ’S DECISION

The Social Security Regulations outline a five-step sequential evaluation
process to determine whether a claimant is disabled. 20 C.F.R. § 404.1505(a); id.
§ 1520(a)(4); see Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir.
2011). At the first three steps of the process, the ALJ found that Ms. Tumlin was not
engaged in substantial gainful activity, and that she had one or more severe mental
impairments, namely, generalized anxiety disorder, depression disorder with later
diagnosed bipolar disorder. (Doc. 19-2 at 25.) 9 The ALJ found that Ms. Tumlin’s

within a schedule, maintain regular attendance, and be punctual within customary
tolerance; (5) ability to sustain an ordinary routine without special supervision;
(6) ability to complete a normal workday and workweek without interruptions from
psychologically based symptoms and to perform at a consistent pace without an
unreasonable number and length of rest periods; (7) ability to ask simple questions
or request assistance; (8) ability to get along with coworkers or peers without
distracting them or exhibiting behavioral extremes; (9) ability to respond
appropriately to changes in the work setting; (10) ability to be aware of normal
hazards and take appropriate precautions; and (11) ability to travel in unfamiliar
places or use public transportation. (Doc. 19-10 at 31-32 (Ex. 11F/2-3).)
The ALJ did not find that Ms. Tumlin had any severe impairments in the category
of Trauma-and Stressor-Related Disorders, despite documentation of her history of
trauma and PTSD diagnosis going back to the earliest medical notes in the record
13
9

mental impairments, although severe and significantly limiting in her ability to do
basic work activities, did not meet or equal a listed impairment. (Id. at 25-26.)
The ALJ then proceeded to assess Ms. Tumlin’s residual functional capacity
(“RFC”) given the listed impairments and “considering all symptoms.” 10 The ALJ
explained that, in assessing Ms. Tumlin’s RFC, he gave “little weight” to Dr. Hosick’s
Assessment. (Id. at 30.) According to the ALJ, the mental functioning limitations in
Dr. Hosick’s Assessment of “mostly marked, extreme, or very extreme” were “vastly
contrasted to the relatively normal mental status examination findings throughout
the record.” (Id.) “Because of the[se] [so-called] overwhelming normal psychiatric
findings,” the ALJ gave Dr. Hosick’s Assessment “little weight.” (Id. at 31.) On the
other hand, the ALJ gave the state agency assessment at the reconsideration level
“great weight.” (Id.) The ALJ found the opinions of the state psychologist in that
assessment were “well supported by the above-cited medically acceptable clinical

(Doc. 19-8 at 18, 54-55 (Ex. 4F/13-14, 18)), and despite the state psychologist’s
recognition of a severe impairment in the Trauma-and Stressor-Related Disorders
category in the August 2018 state assessment (Doc. 19-3 at 20). The ALJ found that
“the additional impairments medically determined in the record to be non-severe
because these either did not exist for a continuous period of twelve months, were
responsive to medication, did not require significant medical treatment, or did not
result in any continuous exertion or non-exertion functional limitations.” (Doc. 19-2
at 25.)
An individual’s RFC is her “ability to do physical and mental work activities on a
sustained basis despite limitations from her impairments.” 20 C.F.R. § 404.1520(e).
In determining a claimant’s RFC, the ALJ must consider all of the claimant’s
impairments including those that are not severe. Id.; 20 C.F.R. § 1404.1545; SSR 968p; see Doc. 19-2 at 25.
10

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findings and laboratory techniques; are consistent with the medical evidence of
record, both before and after consultant review[ 11, and represent a careful analysis of
the relationship between the identified impairments and resulting limitations.” (Id.)
Based on this evaluation of the evidence, the ALJ found that Ms. Tumlin had
a “moderate limitation” in three categories of mental functioning: (1) interacting with
others; (2) concentrating, persisting, or maintaining pace; and (3) adapting or
managing oneself.

(Id. at 26-27.)

The ALJ determined that these moderate

limitations in mental functioning impacted Ms. Tumlin’s RFC in the following
manner:
[C]laimant has the residual functional capacity to perform
light work . . . except [that she is] precluded from
performing complex and detailed tasks; no more than
occasional interaction with supervisors and the public; and
no more than occasional changes in a workplace setting.
(Id. at 27.) This RFC finding meant that Ms. Tumlin could not perform her past
relevant work as a waitress or sales clerk. (Id. at 32.) Based on the testimony of a
Vocational Expert (“VE”), however, the ALJ found that Ms. Tumlin’s RFC permitted
her to perform the requirements of at least two other jobs in the economy
(housekeeper and courier), and that she thus was not disabled. (Id. at 33.)
STANDARD OF REVIEW
Judicial review of the Commissioner’s final decision as to disability is limited.

The ALJ’s reference to “consultant review” appears to be a reference to the state
psychologist who performed the assessment. The state assessment, however, was a
medical records review, and therefore, technically, was not a “consultant review.”
11

15

The Court must determine only whether there is substantial evidence to support the
factual findings of the Commissioner, and whether the correct legal standards were
applied. Biestek v. Berryhill, 139 S. Ct. 1148, 1152 (2019) (“The agency’s factual
findings on that score are ‘conclusive’ in judicial review of the benefits decision so long
as they are supported by ‘substantial evidence.”’ (quoting 42 U.S.C. § 405(g)); Lacina
v. Comm’r, Soc. Sec. Admin., 606 F. App’x 520, 525 (11th Cir. 2015) (per curiam)
(citing Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005)). “Within this narrowly
subscribed role, however, [courts] do not act as automatons.” MacGregor v. Bowen,
786 F.2d 1050, 1053 (11th Cir. 1986). Instead, the court “must scrutinize the record
as a whole to determine if the decision reached is reasonable and supported by
substantial evidence.” Id. If the Commissioner’s decision is supported by substantial
evidence, the court must affirm even if the proof predominates against it. Dyer, 395
F.3d at 1210. But if the ALJ “fail[s] to apply the correct law or to provide the
reviewing court with sufficient reasoning for determining the proper legal analysis
has been conducted,” the court must reverse. Keeton v. Dep’t of Health & Human
Servs., 21 F.3d 1064, 1066 (11th Cir. 1994).
DISCUSSION
Ms. Tumlin contends that she is disabled because of mental impairments
consisting of daily panic attacks, anxiety, flashbacks due to past trauma, extreme
difficulty holding attention for even short of periods of time, and severe difficulty in
leaving her home. (Doc. 19-7 at 266 (Ex. 22E).) She objects to the R&R on the ground

16

that the Magistrate Judge should have found that the ALJ’s RFC finding as to her
mental limitations is not supported by substantial evidence.
I.

IMPROPER CHARACTERIZATIONS OF MS. TUMLIN’S ARGUMENTS
In its brief, the Commissioner (Doc. 34 at 2) mischaracterizes Ms. Tumlin’s

arguments for why the ALJ’s assessment of her mental limitations should be
reversed. He attempts to frame her argument primarily as presenting a question as
to the proper legal standards to be applied to medical opinion evidence, when in fact
Ms. Tumlin is presenting a straightforward sufficiency of the evidence argument.
The Commissioner argues that Ms. Tumlin’s substantial evidence argument
fails because the new Social Security regulations applicable to Ms. Tumlin’s
application for benefits no longer require special deference to treating physicians.
(Doc. 28 at 16–21; see also Doc. 34 at 2 (“Plaintiff does not demonstrate that the ALJ’s
decision did not comport with the new regulations.”).) The new rules “significantly
alter how the agency considers medical opinions and prior administrative medical
findings for claims filed on or after March 27, 2017.” (Doc. 28 at 17.) The primary
change is that the new regulations eliminate the “treating source rule,” which
required deference to treating source opinion evidence. The Commissioner will no
longer give deference or any specific evidentiary weight to any medical opinions,
including those from the claimant’s own medical sources.

See 20 C.F.R.

§ 404.1520c(a).
The revised regulations became effective on March 27, 2017 and are applicable
to claims filed on or after that date.

See id., § 404.1520c. They provide that the
17

Commissioner “will not defer or give any specific evidentiary weight, including
controlling weight, to any medical opinion(s) . . ., including those from your medical
sources.” Id., § 404.1520c(a). Instead, the Commissioner will consider each medical
opinion using five factors: (1) supportability; (2) consistency; (3) relationship with the
claimant (including length of the treatment relationship, frequency of examinations,
purpose of the treatment relationship, extent of the treatment relationship and
examining relationship); (4) specialization, and (5) other factors tending to support or
contradict a medical opinion. Id., §§ 404.1520c(a), (c)(1)–(5). The most important
factors for evaluating the persuasiveness of medical opinions are supportability and
consistency. Id., §§ 404.1520c(a), 404.1520c(b)(2). The ALJ must articulate in his
decision how “[he] find[s] all of the medical opinions … in [the] case record.” Id.,
§ 404.1520(b). The ALJ is only required, however, to explain how he considered the
supportability and consistency factors; he may, but is not required to, explain how he
considered the other three factors. Id., § 404.1520c(b)(2).
The Commissioner argues that Ms. Tumlin fails to address whether the ALJ’s
findings can be upheld under the new “supportability and consistency” principles. 12
But Ms. Tumlin’s objections to the R&R do not “acknowledge” (Doc. 34 at 3) the new
regulations because they are not directly relevant to her argument. Ms. Tumlin
explains her argument as follows:

The ALJ decision itself does not reference the new analytical framework and, from
its terminology, appears to apply the old framework by according specific “weight” to
medical opinions in the record.
12

18

The RFC and hypothetical questions to the VE did not
properly reflect Plaintiff’s mental impairments given that
Ms. Pepe, ARNP Belot, and NP Rivera Torres reported dire
symptoms from her mental impairments and Dr. Hosick
opined as to very extreme, extreme, and marked
limitations in her abilities to perform basic work functions.
(Doc. 33 at 1 (quoting Doc. 28 at 10).) This argument does not invoke the standard to
be applied by the Commission to medical opinion evidence, nor does it attempt to
apply the treating physician rule. Instead, Ms. Tumlin simply argues that the ALJ’s
findings are not supported by substantial evidence because Dr. Hosick’s assessment
and medical opinion are consistent, not inconsistent as the ALJ found, with the other
medical evidence in the record and support her reported symptoms, which, if properly
taken into consideration, would result in an RFC with more severe limitations than
the “moderate” limitations finding of the ALJ.
II.

THE ALJ’S SUBSTANTIAL EVIDENCE FINDINGS
The issue raised by Ms. Tumlin before this Court is whether the ALJ’s

reasons for giving Dr. Hosick’s Assessment “little weight”—that the
conclusions in her Assessment regarding Ms. Tumlin’s mental functioning
were “vastly contrasted to” the “relatively normal mental status examination
findings throughout the record” and/or the “overwhelming normal psychiatric
findings” in Ms. Tumlin’s medical records—is supported by substantial
evidence. As discussed below, the Court finds that it is not, and therefore that
the ALJ’s decision must be reversed for further development of the record.

19

A.

“Normal Psychiatric Evaluations”

The ALJ makes multiple references to “normal psychiatric evaluations” in
Ms. Tumlin’s medical records. The ALJ cites two medical records in this regard.
The first is a record from Ms. Tumlin’s primary care physician in Georgia.
According to this record, Ms. Tumlin saw her doctor for an upper respiratory
infection, and that doctor observed that her mental status appeared normal during
the visit. (Doc. 19-8 at 1–2 (Ex. 1F/2.) The physician visit in question occurred before
the alleged November 24, 2016 onset date. More importantly, the ALJ’s repeated
statement that this medical report shows that Ms. Tumlin “was seen with normal
psychiatric findings” (e.g. Doc. 19-2 at 26; id. at 28( twice); id. at 30 (twice)) is simply
wrong. This was not a psychiatric evaluation of a mental health professional and
therefore does not contain “psychiatric findings” of any kind. In fact, the portion of
the medical record that the ALJ references is a “review of systems” by a primary care
physician rather than a mental health specialist’s mental health review; at most, it
amounts to another mental status report (discussed in the next section). 13
The second citation for “normal psychiatric findings” the ALJ provides is to a
medical record from November 28, 2017. Nurse Practitioner Belot observed that

During her first psychiatric evaluation in Florida, Ms. Tumlin reported she had a
history of trauma and that she received out-patient mental health therapy from
January 2017 to May 2017 while living in Georgia. (Doc. 19-8 at 58-59 (4F/17-18).)
Nothing about the medical report from Ms. Tumlin’s primary care physician in
Georgia contradicts this history or otherwise supports a finding that Ms. Tumlin had
“normal psychiatric evaluations” while she lived in Georgia. Again, the office visit to
her primary care physician was to treat an upper respiratory infection.
13

20

Ms. Tumlin presented as cooperative, polite, pleasant and calm at that evaluation,
and that her mental status at the time appeared good. (Doc. 19-8 at 55–56 (Ex.
4F/14–15).). The ALJ cites this mental status evaluation as a report of “entirely
normal psychiatric findings.” (Doc. 19-2 at 28.) The same medical record, however,
also reported that Ms. Tumlin was being treated for depression, anxiety, racing
thoughts, feeling of hopelessness; that she was physically abused in past marriages,
that she had mental health problems in multiples areas (Depression: sleep, energy
and concentration; Mania: irritability, need less sleep; elevated mood and speedy
thoughts; Generalized Anxiety: excess worry, restless/edgy and easily fatigued;
PTSD: experienced/witness event and avoidance behavior; Specific Phobias: crowds
and claustrophobia). In other words, in no way can the mental status evaluation from
the report in question be read as a report of “entirely normal psychiatric findings.”
To the contrary, Nurse Practitioner Belot diagnosed Ms. Tumlin in the report with
an “unspecified mood disorder” and prescribed a treatment plan that included the
prescription drugs Wellbutrin, Lamictal, and Vistatil.
B.

“NORMAL MENTAL STATUS EXAMINATIONS”

The primary evidence cited by the ALJ for his finding that Dr. Hosick’s
Assessment was inconsistent with Ms. Tumlin’s medical records are a few “mental
status examinations” in those records that purportedly show Ms. Tumlin’s mental
state to be “normal.” (See Doc. 19-2 at 28 (citing Ex. 4F/14, 15 ).) For instance,
referring to the notes of the treating psychiatric nurse, the ALJ states that “the
claimant was reported with mood that is entirely normal with no signs of depression
21

or mood elevation.

Her affect was observed congruent with mood and intact

associations, logical thinking, appropriate thought, intact cognitive functioning, an
intact fund of knowledge.” (Doc. 19-2 at 28.) 14 In recommending that the Court
uphold the ALJ’s RFC finding, the R&R cites to the ALJ’s reliance on the mental
status examinations, 15 and then tersely concludes that “it is not the Court’s job to
reweigh the evidence or decide facts anew.” (Doc. 32 at 9.) That is indeed true but,
as will be explained, this Court is not reweighing the record evidence by examining
that evidence to discern if the ALJ inaccurately characterizes the evidence on which
it relies for its RFC finding.
1.

CHERRY-PICKING

An “ALJ is obligated to consider all relevant medical evidence and may not
cherry-pick facts to support a finding of non-disability while ignoring evidence that
points to a disability finding.” Dicks v. Colvin, No. 3:15-cv-934, 2016 WL 4927637, at
*4 (M.D. Fla. Sept. 16, 2016) (citation omitted); see, e.g., Bates v. Colvin, 736 F.3d

See also Doc. 19-2 at 29 (“The claimant was observed on mental status examination
to be alert and oriented, cooperative, well-related, mood sad with congruent affect,
mood (normal) anxious, and logical thought.”); id. (“the claimant was observed
comfortable speaking and adequate social communication . . . alert, oriented, calm,
cooperative, forthcoming, organized thinking, casually groomed, relaxed, normal
speech, coherent, entirely normal mood with no signs of depression or mood elevation,
appropriate affect, congruent mood, and no signs of anxiety”).
14

Ms. Tumlin asserts that the Magistrate Judge “does not address” the issue of
whether substantial evidence supported the RFC.” (Doc. 33 at 2.) That is not true,
although it is accurate to the extent that the R&R’s discussion is fairly conclusory
and consists of only a few sentences finding that the mental status examinations
constituted substantial evidence for the ALJ’s RFC.
15

22

1093, 1099 (7th Cir. 2013) (“while an ALJ need not mention every piece of evidence
in [his] opinion, [he] cannot ignore a line of evidence that suggests a disability”). In
such instances, like here, the Court cannot properly find whether substantial
evidence supports the ALJ’s decision. See McCruter v. Bowen, 791 F.2d 1544, 1548
(11th Cir. 1986) (“It is not enough to discover a piece of evidence which supports that
decision, but to disregard other contrary evidence. The review must take into account
and evaluate the record as a whole.”).
Indeed, an “ALJ has the obligation to consider all relevant medical evidence
and cannot simply cherry-pick facts that support a finding of non-disability while
ignoring evidence that points to a disability finding.” Denton v. Astrue, 596 F.3d 419
(7th Cir. 2010). “Only then can we be sure that the final determination reflects the
ALJ’s assessment of all of the evidence in the record.”

Baldwin v. Berryhill,

746 F. App’x 580, 583 (7th Cir. 2018) (reversing ALJ’s determination that claimant
was not disabled and stating: “This record, unfortunately, reveals that the ALJ
cherry-picked the evidence in determining that Baldwin’s condition improved after
May 15, 2014.”).
“‘Cherry picking’ can indicate a serious misreading of evidence, failure to
comply with the requirement that all evidence be taken into account, or both.”
Younes v. Colvin, No. 1:14-cv-170, 2015 WL 1524417, at *8 (N.D.N.Y. 2015). Here it
is both. The ALJ does not comply with the requirement that all evidence be taken
into account because he merely cites a few positive mental status examinations
without giving any indication that he considered the numerous other mental status
23

examinations, diagnoses, and documented symptoms in the record that showed
severe mental health issues. The ALJ is not required to specifically refer to every
piece of evidence in his decision. See Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th
Cir. 2005). The ALJ is required, however, to consider all the presented evidence in
making his findings and the ultimate disability determination, and a reviewing court
should have some indication in the decision that he did so. See Meek v. Astrue, No.
3:08-cv-317, 2008 WL 4328227, at *1 (M.D. Fla. Sept. 17, 2008) (“Although an ALJ
need not discuss all of the evidence in the record, he many not ignore evidence that
does not support his decision. . . . Rather, the judge must explain why significant
probative evidence has been rejected.”); see also Santi v. Comm’r of the Soc. Sec.
Admin., No. 6:18-cv-1574, 2020 WL 1527853, at * 6 (M.D. Fla. Mar. 31, 2020). This
is especially important because while the Court may not reweigh the evidence, it
“must view the record as a whole, taking into account evidence favorable as well as
unfavorable to the decision.” Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995).
What is more, the ALJ even misreads what ostensibly “normal” mental status
examinations that he cherry-picked to justify his RFC determination. That is, the
very same records that show so-called normal mental status examinations also show
that the treating provider found Ms. Tumlin to have serious mental disorders and
significant symptoms of those mental disorders. For instance, the ALJ takes note of
Ms. Tumlin’s visit with the nurse practitioner on November 21, 2018, because it
occurred shortly after Dr. Hosick prepared her Assessment and opinion. (Doc. 19-2
at 31 (citing Ex. 12F/3).) Yet, despite noting that Ms. Tumlin was alert, oriented,
24

calm, and cooperative, with normal mood and no signs of depression, the very same
page of the November 21, 2018 medical report has a heading “Mental Status Exam”
under which there are listed over ninety symptoms Ms. Tumlin was experiencing,
including specific references to agoraphobia; PTSD; “experienced/witnessed event”;
“persistent re-experiencing”; dreams/flashbacks; fear of meeting unfamiliar people’
and phobias of crowds, animals, insects, and the natural environment, as follows:

25

(Doc. 19-11 at 7–8 (Ex. 13F/6–7).) It is unclear how, or even if, the ALJ reconciled
“[t]here are no signs of anxiety” with “panic attacks,” “excess worry,” or “avoidance
behavior.” (Id. at 8 (Ex. 13F/7).)
In another example, the ALJ cites a medical note stating that Ms. Tumlin
reported “using a punching bag to help with instances of irritability” (Doc. 19-2 at
29), and another stating that Ms. Tumlin “reported struggling with lack of motivation
(id. (citing Ex. 4F/17)). By only citing to the relatively mild symptoms of irritability
and lack of motivation stated within those reports, the ALJ paints an inaccurate
picture of Ms. Tumlin’s symptoms.

The same medical record that referred to

Ms. Tumlin’s reported lack of motivation also states that her “chief complaint[s]”
included “hypersensitivity, low mood and low energy, difficulty falling and staying
asleep, difficulty with depressive symptoms and insomnia since childhood.” (Id. at 58
(Ex. 4F/17).) Additionally, it states that Ms. Tumlin reported “a history of diagnosed
26

anxiety and depression dating back several years”; a history of trauma, including
rape and physical and emotional abuse by her first husband; and that she “has no
memory prior to the age of twelve.” (Id. at 59 (Ex. 4F/18).)
The ALJ makes no attempt to reconcile the conclusions he draws from one or
two notations in a report indicating Ms. Tumlin presented with normal mood and
affect with the immediately preceding listing of over ninety symptoms. By focusing
on positive mental status examinations “without reconciling th[ose] positive findings
. . . with [Ms. Tumlin’s] diagnoses, ongoing treatments, and reports of continuing,
possibly deteriorating symptoms[,] . . . the ALJ appears to have ignored entirely
evidence that contradicts his RFC analysis without adequate explanation.” Randi R.
W. v. Comm’r of Soc. Sec., 421 F. Supp. 3d 616, 623 (N.D. Ind. 2019). Put simply, on
this record, while it is clear what favorable evidence the ALJ relied on in formulating
the RFC, the Court is otherwise left guessing as to how the ALJ considered the
unfavorable evidence of record beyond the sparse citation to minimal treatment notes
like “lack of motivation.”

It may very well be that the ALJ’s RFC ultimately

accounted for the unfavorable evidence but, the Court cannot make that assumption
as it would require the Court to impermissibly weigh that evidence.
2.

FALSE INCONSISTENCY FINDINGS

The ALJ’s repeated emphasis on the normal mental status examinations
without adequate explanation of potentially competing evidence is also concerning
because normal mental status examinations do not equate to a lack of disability. The
mental status examinations in Ms. Tumlin’s medical records appear to be little more
27

than the treating provider’s observations in the moment of Ms. Tumlin’s mental
state. 16

One can both appear normal in mood and affect and still suffer from

debilitating mental health issues such as agoraphobia, depression, bipolar disorder,
and PTSD. With no further explanation, the ALJ’s emphasis on the mental status
examinations implies a misunderstanding that normal mental status examinations
preclude a finding of disability.
The ALJ used the normal mental status evaluations as his rationale for
discounting Dr. Hosick’s Assessment and opinion (as well as for discounting
Ms. Tumlin’s testimony about her limitations and symptoms 17). Inconsistencies, if

The Merck Manual defines a mental status examination as “an assessment of
current mental capacity through evaluation of general appearance, behavior, any
unusual or bizarre beliefs and perceptions (e.g. delusions, hallucinations), mood, and
all aspects of cognition (e.g. attention, orientation, memory),” and describes screening
tools for the assessment such as the Montreal Cognitive Assessment and the MiniMental
State
Examination.”
https://www.merckmanuals.com/
professional/neurologic-disorders/neurologic-examination/how-to-assess-mentalstatus. The mental status examinations here do not appear to be full-blown
assessments like that described in the Merck Manual as there is no indication that
any formal testing or screening tool was used.
16

Although Ms. Tumlin does not mention the ALJ’s treatment of her own testimony
as a basis for reversal, the Court is troubled by the ALJ’s failure to mention let alone
discuss Ms. Tumlin’s testimony regarding her symptoms of agoraphobia and panic
attacks, particularly her testimony about not having gone out of the house in the past
two years without someone with her, even then only going out for doctor’s
appointments and at night for grocery shopping. When a claimant seeks to establish
disability based on subjective testimony, she must satisfy two parts of a three-part
test, showing: “(1) evidence of an underlying medical condition; and (2) either (a)
objective medical evidence confirming the severity of the alleged [symptom]; or (b)
that the objectively determined medical condition can reasonably be expected to give
rise to the claimed” symptom. Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir.
2002) (per curiam); see also 20 C.F.R. § 404.1529(a). Once the claimant provides such
testimony, the “ALJ must then articulate adequate reasoning for discrediting such
28
17

they do exist, typically would suffice as substantial evidence supporting an ALJ’s
failure to credit a medical opinion in crafting a claimant’s RFC. 18 But here, the
inconsistencies pointed out by the ALJ are not inconsistencies at all. Relatively
normal mental status examinations occurred during therapy sessions when the
reporting nurse practitioner or therapist also reported serious mental health issues

subjective testimony.” Alvarez v. Comm’r, No. 20-11721, 2021 WL 777143, at *3 (11th
Cir. Mar. 1, 2021) (citing Wilson, 284 F.3d at 1225)) (emphasis added). While the
ALJ’s “credibility determination does not need to cite particular phrases or
formulations, [ ] it cannot merely be a broad rejection which is not enough to enable
[the court] to conclude that [the ALJ] considered [the plaintiff’s] medical condition as
a whole.” Dyer, 395 F.3d at 1210 (quotation and citation omitted). The ALJ found
that Ms. Tumlin’s “medically determinable impairments could reasonably be
expected to cause [her] alleged symptoms; however,” Ms. Tumlin’s “statements
concerning the intensity, persistence and limiting effects of these symptoms” were
not consistent with the “medical evidence and other evidence in the record.” (Doc. 192 at 30.) But the ALJ relied for this finding on the mental status examinations, which
were not inconsistent with Ms. Tumlin’s testimony for the reasons discussed. And
the ALJ’s reliance on Ms. Tumlin’s reports in the medical records of “looking for a job,
performing hobbies such as crocheting, writing, and furniture refining . . . doing
household chores of cooking, cleaning, doing laundry and shopping” (id. at 30) are not
inconsistent with her testimony and Dr. Hosick’s medical opinion that Ms. Tumlin’s
mental health diagnoses severely impair her capacity to respond emotionally in an
appropriate manner or engage with others in a social setting. Even more, Dr. Hosick
flat out concluded that, along with her other diagnoses, Ms. Tumlin’s
panic/agoraphobia disorders yield her ability to function in a social setting. (Doc. 1910 at 32 (Ex. 11F/3).) See Lewis v. Callahan, 125 F.3d 1436, 1441 (11th Cir. 1997)
(“Nor do we believe that participation in everyday activities of short duration, such
as housework or fishing, disqualifies a claimant from disability.”).
See Martinez v. Acting Comm’r of Soc. Sec., 660 F. App’x 787, 794 (11th Cir. 2016)
(ALJ gave sufficient reasons for assigning little weight to opinions of physician
because it was inconsistent with overall record); Hernandez v. Comm’r of Soc. Sec.,
523 F. App’x 655, 657 (11th Cir. 2013) (ALJ provided good cause for affording little
weight to opinions of social security disability claimant’s treating physicians, which
were inconsistent with doctors’ own treatment notes and with objective medical
evidence).
18

29

and the need for continued care. If those normal mental status examinations meant,
as the ALJ seems to suggest they meant, that Ms. Tumlin had no or few limitations
from her mental impairments, then those medical reports themselves would be
internally inconsistent. At the very least, the ALJ’s emphasis on normal mental
status examinations exposes a gap in his logic from the evidence of the record to his
cursory conclusions related to Ms. Tumlin’s RFC, calling into question his RFC
finding. See, e.g., Ernestine C. v. Comm’r, No. 1:18-cv-2979, 2019 WL 5410066, at
*11 (N.D. Ga. Aug. 30, 2019) (that a claimant had “some normal findings ‘over a long
period of treatment’ . . . do[es] not demonstrate that a doctor’s opinions about the
patient’s limitations are suspect”).
The mere fact that Ms. Tumlin was observed with normal affect and mood
during some of her appointments does not render Dr. Hosick’s Assessment and
opinion any less relevant and probative for the ALJ’s consideration of Ms. Tumlin’s
RFC. To a large degree, the Assessment relates to Ms. Tumlin’s ability to function
socially, and, other than noting Ms. Tumlin was “cooperative” during the
examinations, none of the mental status examinations cited by the ALJ specifically
address Ms. Tumlin’s capacity for socialization. 19 To state it in the negative, the

The R&R states that the ALJ incorporated Dr. Hosick’s opinion regarding
Ms. Tumlin’s limitations in social interactions into the RFC because it limits
Ms. Tumlin “to no more than occasional interaction with supervisors and the public.”
(Doc. 32 at 9.) But Dr. Hosick opines that Ms. Tumlin’s mental disorders “severely
impair her capacity to respond appropriately emotionally and cause significant
cognitive impairment,” and that “[h]er panic/agoraphobia prevents her from working
in a social setting.” (Doc. 19-10 at 32 (Ex. 11F/3).) A limitation on social interactions
to “no more than occasional” occurrences accounts for a “moderate,” not “severe”
30
19

mental status examinations do not constitute substantial evidence for thee ALJ’s
rejection of Dr. Hosick’s opinion in formulating the RFC. See Wheat v. Berryhill, No.
17CV2496-MMA (RNB), 2018 WL 4328219, at *2 (S.D. Cal. Sept. 11, 2018)
(determining that ALJ erred in relying on mental status examinations which did not
undermine medical opinion and were not inconsistent with “consistently reported
symptoms of severe depression, anxiety, agoraphobia, and obsessive compulsive
disorder”); see also West v. Colvin, 8:14-CV-2659, 2016 WL 7508830, at *3 (M.D. Fla.
Mar. 23, 2016) (reversing ALJ’s determination that claimant was not mentally
disabled and noting, “The plaintiff argues meritoriously that substantial evidence
does not support the law judge’s finding that Dr. DeVine’s records show an
improvement in his mental condition. . . . . In fact, the plaintiff correctly asserts that
Dr. DeVine’s treatment notes show a deterioration of the plaintiff’s mental
condition.”)).

impairment in the area. See, e.g., Washington v. Soc. Sec. Admin., Com’r, 503 F.
App’x 881, 883 (11th Cir. 2013) (finding ALJ’s hypothetical took account of the
plaintiff’s moderate limitations in social functioning by limiting the plaintiff to jobs
that involved only occasional interaction with the general public and co-workers).
Moreover, such a limitation is inconsistent with Dr. Hosick’s opinion that
Ms. Tumlin’s panic/agoraphobia prevents her from having any social interactions at
all. (Doc. 19-10 at 32 (Ex. 11F/3). And had the ALJ imposed a greater than moderate
limitation in social functioning on Ms. Tumlin’s RFC, the result would have been
different. (See Doc. 19-2 at 71 (vocational expert (“VE”) testimony that, if
Ms. Tumlin’s RFC were further limited by the requirement that, “[o]n a sustained
basis, the individual would be unable to respond appropriately to usual work
situations or to deal with changes in a routine work setting,” there would be no jobs
in the economy).)
31

3.

EPISODIC NATURE OF PTSD AND EFFECT OF HIGHLY
STRUCTURED

AND

SUPPORTIVE

THERAPEUTIC

ENVIRONMENT

There is still an additional reason why the normal mental status examinations
do not provide substantial evidence for the ALJ’s RFC determination. The Eleventh
Circuit has cautioned that “an ALJ’s reliance solely on face-to-face observations made
in highly structured and supportive environments may not constitute substantial
evidence when episodic conditions like PTSD are involved.” Ross v. Commissioner,
794 F. App’x 858, 864 (11th Cir. 2019). In Perez v. Commissioner, 625 F. App’x 408,
418 (11th Cir. 2015), the Eleventh Circuit found that a treating physician’s notes that
the claimant “was cooperative, had good eye contact, and had no delusions or
compulsions” did not contradict the physician’s ultimate conclusion concerning the
claimant’s inability to function in a work setting. And, in Mace v. Commissioner, 605
F. App’x 837, 842 (11th Cir. 2015), the Commissioner’s denial of benefits was
remanded for further proceedings because the ALJ had failed to consider the episodic
nature of the claimant’s bipolar disorder and depression, or the effect of controlled
environments on the claimant’s ability to function.

As the Seventh Circuit has

explained, “[a] person who has a chronic disease . . . and is under continuous
treatment for it with heavy drugs, is likely to have better days and worse days[.] . . .
Suppose that half the time she is well enough that she could work, and half the time

32

she is not. Then she could not hold down a full-time job.” Bauer v. Astrue, 532 F.3d
606, 609 (7th Cir. 2008). 20
The record shows that Ms. Tumlin has been diagnosed with bipolar disorder,
a disorder that is characterized by an “episodic nature” of “better days and worse
days,” along with symptom-free intervals. Mace, 605 F. App’x at 843. Ms. Tumlin
also has been diagnosed with PTSD, which can cause employment difficulties because
of its episodic and unpredictable nature. In Ross, the court upheld the ALJ’s finding
that the plaintiff was not disabled despite his PTSD, but did so only because the

See also Ernestine C., 2019 WL 5410066, at *10-11 (holding that a doctor’s opinion
concerning the effect of a claimant’s mental health disorder on her ability to “sustain
gainful employment” was not inconsistent with mental status examinations showing
the plaintiff “was alert and oriented and had good eye contact, normal speech,” etc.);
Cook v. Berryhill, No. 3:18cv-177, 2019 WL 1376516, at *5 (M.D. Fla. Mar. 27, 2019)
(ALJ’s finding that treatment notes were inconsistent with physician’s opinion was
not supported by substantial evidence where the ALJ mostly cited those portions of
the treatment notes that showed the plaintiff doing well, when, a review of the record,
showed that the plaintiff’s condition fluctuated significantly, such that some days the
plaintiff was doing better than other days); Hill v. Berryhill, 17-14262-CIV, 2018 WL
6048006, at *9 (S.D. Fla. Nov. 19, 2018) (stating that, rather than focus solely on the
apparent success of therapy in easing a claimant’s psychosis, the ALJ must consider
whether “[a] mental health patient who is stable with therapy and support may
decompensate in a more demanding setting such as in the workplace”); Cannington
v. Barnhill, No. 5:16-cv-208, 2017 WL 4404569, at *8 (N.D. Fla. Sept. 29, 2017)
(explaining that “the point made in Mace was that the ALJ needs to consider the
mercurial, unpredictable nature of an impairment such as [ ] its possible effects on
the claimant’s ability to work,” and that, “[s]een in this light, the fact that [a] [p]aintiff
may have appeared cogent and unaffected during his medical interviews, for instance,
carries less weight than normal”); Limle v. Berryhill, No. 8:17-cv-273, 2017 WL
6756606, at *6 (M.D. Fla. Dec. 12, 2017), report and recommendation adopted sub
nom. Limle v. Comm’r, 2017 WL 6610786 (M.D. Fla. Dec. 27, 2017) (holding that,
where the ALJ overemphasized the plaintiff’s good days without regard for her bad
days, the ALJ’s consideration of the plaintiff’s mental impairments in fashioning her
RFC is not supported by substantial evidence).
20

33

mental status examinations on which the ALJ relied “very clearly took into account
more than the simple fact that [the plaintiff] was functioning normally during the
session.” 794 F. App’x at 864 (emphasis added). Instead, the medical notes, as well
as the plaintiff’s own self-reports, showed that the plaintiff “was able to function
adequately even in activities outside of controlled environments, including stressful
environments like court proceedings and late night visits from child protective service
agents.” Id. at 864 n.8.
Here, there is no similar assessment of Ms. Tumlin’s ability to function outside
of her therapist’s office in the record. The ALJ cites to (1) a medical report in
November 2017 which indicates that Ms. Tumlin “reported enjoying woodworking,
crocheting, and writing poetry and short stories”; (2) a medical report in December
2017, which indicates that Ms. Tumlin “reported doing well on medication’; and (3) a
medical report in January 2018, which indicates that Ms. Tumlin “reported applying
for two jobs.” (Doc. 19-2 at 29-30 (citing Ex. 4F/18; Ex. 4F/9 and Ex. 4F/7).) Without
a more robust discussion from the ALJ, however, these self-reported activities cannot
constitute substantial evidence for an “occasional interaction” limitation, as stated in
the RFC, in light of Dr. Hosick’s medical opinion to the contrary. See, e.g., Booker v.
Comm’r, No. 6:16-CV-2247-ORL-TBS, 2017 WL 6380422, at *6 (M.D. Fla. Dec. 14,
2017) (rejecting ALJ’s finding of “inconsistency between ‘claimant’s self-reported
activities of daily living such as cleaning or providing care for her grandmother’ and
disabling mental limitations due to PTSD and MDD”).

34

Simply stated, the record is devoid of substantial support for the ALJ’s
conclusion that the cherry-picked and misread mental status evaluations are
inconsistent with Dr. Hosick’s Assessment. Neither the mental status evaluations
nor Ms. Tumlin’s own self-reports contain information that shows Ms. Tumlin is able
to function socially or in a work environment at a higher level than reported by
Dr. Hosick. That Ms. Tumlin appeared mentally stable during a few of her monthly
thirty-minute sessions with the psychiatric nurse is not evidence to conclude that she
could perform equally and consistently each day during a 40-hour work week. At a
minimum, it certainly is not “substantial” evidence. In sum, the record needs further
development to discern whether the ALJ considered other evidence, which he deemed
substantial, besides the above-discussed treatment notes in formulating Ms. Tumlin’s
RFC.
C.

STATE PSYCHOLOGICAL ASSESSMENT

Finally, the ALJ gave “great weight” to the opinion of the state agency
psychologist at the reconsideration level on July 20, 2018. (Doc. 19-2 at 31.) In
assessing Ms. Tumlin’s mental health impairments, the state psychologist never
examined Ms. Tumlin directly. Instead, his opinion was based on Ms. Tumlin’s own
statements and medical treatment notes. (Doc. 19-3 at 14–20 (Ex. 3A/1–7).) The ALJ
found the state psychologist’s opinion “well supported by the [ ] medically acceptable
clinical findings and laboratory techniques” (Doc. 19-2 at 31), while simultaneously
giving “little weight” to Dr. Hosick’s Assessment on October 4, 2018 (id. at 30)—some
two months after the state psychologist’s opinion.
35

Dr. Hosick’s Assessment finding mostly marked, extreme, or very extreme
limits is in contrast to the state assessment, which found mostly moderate
limitations.

But it appears from the state assessment itself that the state

psychologist understood that his findings were limited by the absence of information
in the record. The state psychologist actually opines that a consultative examination
from one of Ms. Tumlin’s medical providers was appropriate because “additional
evidence needed is not contained in the records of [Ms. Tumlin’s] medical sources.”
(Doc. 19-3 at 19 (Ex. 3A/6.) 21 Dr. Hosick provided that assessment on October 4,

The state assessment answers “yes” to the question “[i]s a [consultative
examination] required?” (Doc. 19-3 at 19 DA/6.) It explains one was needed because
“[t]he additional evidence needed is not contained in the records of the individual’s
medical sources.” Id. The state assessment then answers “yes” to the question “was
the individual’s medical source[s] contacted to perform the [consultative exam]?” (Id.)
While the state assessment represents that Ms. Tumlin’s medical source was
contacted to perform the consultative examination, it also states that “[t]he individual
has no medical source to perform the CE.” (Id.) The initial state assessment said
something similar: “[t]he individual’s medical source(s) is unqualified to perform the
CE(s).” (Doc. 19-3 at 5 (Ex. 1A/4).) There is a dispute in the parties’ briefing as to
whether the ALJ may have discounted Dr. Hosick’s Assessment because he believed
she was unqualified. (See Doc. 28 at 12.) The ALJ’s decision does not give that as
the reason for giving little weight to Dr. Hosick’s opinions, and the Court must rely
on the written decision in determining whether the ruling was in error. But the Court
can understand why Ms. Tumlin may have thought that was a possibility, given the
statements in the state assessments. As best the Court can tell, the state
assessments’ comments may refer to the fact that Dr. Hosick, as a Licensed Mental
Health Counselor, would not have qualified under the old regulations as an
“acceptable medical source.” See Farnsworth v. Soc. Sec. Admin., 636 F. App’x 776,
783–84 (11th Cir. 2016) (citing SSR 06–03p, 2006 WL 2329939, at *1–2 (Aug. 9, 2006)
(explaining that “acceptable medical sources” do not include Licensed Mental Health
Counselors); see also 20 C.F.R. § 404.1527(a)(1) (defining a “medical opinion” as a
statement from an “acceptable medical source[ ],” and then describing procedure for
determining how much weight will be given to those medical opinions). In fact,
however, since the new regulations took effect, it appears Dr. Hosick would qualify to
36
21

2018. 22 Yet the ALJ did not ask the state psychologist to revisit his assessment in
light of Dr. Hosick’s subsequent Assessment.

Had the ALJ ordered its own

consultative examination resulting in an opinion that conflicted with Dr. Hosick’s
findings, then substantial evidence might have supported the ALJ’s RFC
determination as to Ms. Tumlin’s mental impairments. This is crucial in light of the
fact that both the state psychologist and Dr. Hosick found that Ms. Tumlin had severe
mental impairments; they only differed in their assessment as to the limitations of
those impairments. (Compare Doc. 19-3 at 26 (Ex. 3A/13) with Doc. 19-10 at 32 (Ex.
11F/3).) The ALJ gave great weight to the opinion of the state psychologist when that
psychologist gave her opinion based on medical evidence in the record only through
July 9, 2018.

(Doc. 19-3 at 16 (Ex. 3A/6).)

The ALJ did so despite the state

psychologist explaining that a consultative examination from one of Ms. Tumlin’s
medical providers was appropriate because “additional evidence needed is not
contained in the records of [Ms. Tumlin’s] medical sources.” (Doc. 19-3 at 19.) The
Court finds this most troubling. The state assessment itself reports Ms. Tumlin’s
symptoms as worsening in June 2018 (id. at 21), and indicates that there was no

perform a consultative examination and to provide a medical opinion as part of that
assessment. See infra n. 22.
Dr. Hosick, as a licensed mental health counselor, can provide a medical opinion
under the current regulations, even though she is not a licensed psychologist or
medical doctor. See 20 C.F.R. § 404.1513(2) (defining a “medical opinion” as a
statement from “a[ny] medical source”); id. § 404.1520c (setting forth new rules for
how all medical opinions are to be evaluated).
22

37

medical opinion from any medical source for the assessment to take into consideration
(id. at 26). Dr. Hosick’s medical opinion provides the very thing that the state
assessment notes is absent. 23
It is well settled that an ALJ cannot rely on a file-review opinion if post-review
developments reflect a significant worsening of the claimant's condition because such
an opinion does not amount to substantial evidence. Stacey S. v. Berryhill, C.A.,
No. 18-00284-JJM, 2019 WL 2511490, at *7 (D.R.I. June 18, 2019) (opinion is not
stale unless there is a “sustained (and material) worsening” of the claimant's
impairments); Virgen C. v. Berryhill, C.A., No. 16-480 WES, 2018 WL 4693954, at *3
(D.R.I. Sept. 30, 2018) (“[I]f a state-agency physician reviews only a partial record,
her ‘opinion cannot provide substantial evidence to support [an] ALJ’s residual
functional

capacity

assessment

if

later

evidence

supports

the

claimant’s

limitations.’”) (second alteration in original) (citation omitted). Here, the file-review
opinion itself recognizes the beginning of worsening symptoms and requests further
information. Again, the state assessment itself recognizes that its conclusions were

The R&R gets bogged down in a discussion of how much of Dr. Hosick’s Assessment
constitutes “medical opinion” evidence, 20 C.F.R. § 404.1513(a)(2)(ii), and how much
constitutes “other medical evidence,” id., § 404.1513(a)(3). (See Doc. 32 at 8.) The
Court agrees that likely only the last few comments at the end of Dr. Hosick’s
Assessment qualifies as “medical opinion.” But the remainder of the Assessment is
on the same footing as the state psychologist’s assessment, which mostly also falls
into the “other medical evidence” category, and there is no reason to think that the
distinction drawn in the R&R had anything to do with the ALJ’s decision to give the
state psychologist’s assessment greater weight than Dr. Hosick’s Assessment.
23

38

subject to change and would benefit from a consultative medical opinion and
assessment of a treating medical provider.
The failure of the ALJ to obtain a state consultative examination or else
recognize Dr. Hosick’s opinion as qualifying the state psychologist’s findings “would
not necessarily be fatal considering the ALJ had the records before him when making
his decision, if it was obvious the judge had considered all the evidence of record.”
Zellner v. Astrue, No. 308-cv-1205, 2010 WL 1258137, at *7–8 (M.D. Fla. Mar. 29,
2010). However, as discussed supra, the ALJ failed to demonstrate that he properly
considered all the evidence. See id. (reversing and remanding on this basis).
The ALJ took it upon himself to determine whether the findings of mostly
moderate limitations in the state psychological assessment should be reconsidered in
light of Dr. Hosick’s assessment. The ALJ states:
The opinions, supplied by a consultant with expert
knowledge of the SSA disability assessment program rules
and criteria, are well supported by the above-cited
medically acceptable clinical findings and laboratory
technique; are consistent with the medical evidence of
record, both before and after consultant review . . . .
(Doc. 19-2 at 31 (emphasis added).) Assuming the “consultant review” to which the
ALJ is referring is the state assessment in August 2018, the ALJ made his own
finding of the relevance to that assessment’s conclusions of medical evidence not part
of the record at the time the assessment took place. That finding is in error. See
Marbury v. Sullivan, 957 F.2d 837, 840 (11th Cir. 1992) (Johnson, J. concurring)
(stating that the ALJ “abuse[d] his discretion when he substitute[d] his own
39

uninformed medical evaluations for those of” the claimant’s doctor); Combs v.
Berryhill, 878 F.3d 642, 646 (8th Cir. 2017) (stating that, an ALJ “may not simply
draw his own inferences about plaintiff’s functional ability from medical reports”).
The Court notes that the ALJ had a duty to develop a full and fair record,
where, as here, the need for a consultative examination of Ms. Tumlin was readily
apparent for the ALJ to make an informed decision. See Holladay v. Bowen, 848 F.2d
1206, 1209–10 (11th Cir. 1988) (“it is reversible error for an ALJ not to order a
consultative examination when such an evaluation is necessary for him to make an
informed decision”). An ALJ may rely on a consultative examination when trying to
resolve “an inconsistency in the evidence or when the evidence as a whole is
insufficient to support a determination or decision.” 20 C.F.R. § 416.919a(b). But the
ALJ is not required to order such an examination “as long as the record contains
sufficient evidence for the administrative law judge to make an informed decision.”
Ingram v. Comm’r, 496 F.3d 1253, 1269 (11th Cir. 2007).

Ultimately, “[i]n

determining whether it is necessary to remand a case for development of the record,
this Court considers ‘whether the record reveals evidentiary gaps which result in
unfairness or clear prejudice.’” Salazar v. Comm’r, 372 F. App’x 64, 67 (11th Cir.
2010) (quoting Brown v. Shalala, 44 F.3d 931, 935 (11th Cir. 1995)). Here, the Court
finds the ALJ should not have given the state assessment from August 2018 great
weight while discounting as entitled to little weight Dr. Hosick’s later assessment in
October 2018 without either ordering a consultative examination or asking the state
psychologist to revisit his August 2018 assessment to take into account Dr. Hosick’s
40

assessment and subsequent treatment notes not in the record at the time the state
assessment was prepared.
CONCLUSION
At bottom, Ms. Tumlin’s RFC is the province of the ALJ and the ALJ’s alone.
Yet that decision must be supported by substantial medical evidence. And it is the
ALJ’s duty to develop the record and acquire that medical evidence. For the foregoing
reasons, it is ORDERED:
1.

The Report and Recommendation (Doc. 32) is REJECTED.

2.

The decision of the Commissioner is REVERSED and REMANDED

pursuant to sentence four of 42 U.S.C. § 405(g).
3.

On remand, the Commissioner is instructed to reassess the nature of

Plaintiff’s mental health limitations, to reconsider the effect of Plaintiff's
impairments in combination on her ability to work, to make specific findings
regarding Plaintiff’s alleged impairments of PTSD and agoraphobia, and to then
apply those findings in reassessing Ms. Tumlin’s residual functional capacity (RFC)
relating to her mental health conditions and physical limitations.
4.

The Clerk is directed to ENTER JUDGMENT in favor of Plaintiff and

thereafter CLOSE the file.
ORDERED in Fort Myers, Florida, this 31st day of March 2021.

41