Amos v. Commissioner of Social Security

Filing 23

ORDER adopting 20 Report and Recommendations.. Defendant's Objections to the Report and Recommendation (Doc. 21) are OVERRULED. The final decision of the Commissioner of Social Security is REVERSED and the matter is REMANDED to the Commissioner of Social Security. Signed by Judge Roy B. Dalton, Jr. on 2/28/2017. (VMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
SUSAN M. AMOS,
Plaintiff,
v.

Case No. 6:15-cv-1912-Orl-37GJK

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

ORDER
This cause is before the Court on the following:
(1)

U.S. Magistrate Judge Gregory J. Kelly’s Report and Recommendation
(Doc. 20), filed November 10, 2016;

(2)

Defendant’s Objections to Report and Recommendation (Doc. 21), filed
November 22, 2016; and

(3)

Plaintiff’s Response to Defendant’s Objections to the November 10, 2016
Magistrate Judge’s Report and Recommendation (Doc. 22), filed
December 6, 2016.
I.

PROCEDURAL HISTORY

In accordance with 42 U.S.C. §§ 405(g) and 1383(c)(3), Plaintiff Susan M. Amos
(“Amos”) timely initiated this action seeking judicial review of a final unfavorable
determination (“Decision”) on her claim for payment of Social Security Disability
benefits and Supplemental Social Security Income benefits. (See Doc. 1.) The
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Commissioner of Social Security (“Commissioner”) filed an Answer (Doc. 12) and a
transcript of the administrative proceedings (Doc. 17). The parties then filed a joint brief
(Doc. 19), and U.S. Magistrate Judge Gregory J. Kelly (“Magistrate Judge Kelly”) issued
a Report and Recommendation (“Report”) finding that the Decision should be reversed
and remanded (Doc. 20), The Commissioner filed objections (Doc. 21 (“Objections”)),
Amos responded (Doc. 22 (“Response”)), and the matter is now ripe for adjudication.
II.
A.

LEGAL STANDARDS

Review of Commissioner’s Final Decisions

A district court’s review of a final decision by the Commissioner is limited to
determining: (1) whether the Commissioner’s factual findings are supported by
substantial evidence, Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005); and
(2) whether the administrative law judge (“ALJ”) correctly applied the appropriate legal
standards. See Lamb v. Bowen, 847 F.2d 698, 701 (11th Cir. 1988). No presumption of
correctness attaches to the Commissioner’s legal reasoning, and the court must reverse
the Commissioner’s decision if he “failed to apply the correct law.” See Keeton v. Dep’t of
Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994). In contrast, the court must
presume that the Commissioner’s factual findings are correct and must not reverse the
Commissioner’s decision if it is supported by substantial evidence. See Dyer, 395 F.3d at
1210; Phillips v. Barnhart, 357 F.3d 1232, 1240 n. 8 (11th Cir. 1987) (cautioning courts not to
“decide facts anew, reweigh the evidence, or substitute” the court’s judgment for the
judgment of the Commissioner).

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B.

Review of Report and Recommendation

A party seeking to challenge the findings in the report and recommendation of a
magistrate judge must file “written objections which specifically identify the portions of
the proposed findings and recommendation[s] to which objection is made and the
specific basis for objection.” Macort v. Prem, Inc., 208 F. App’x 781, 783 (11th Cir. 2006)
(quoting Heath v. Jones, 863 F.2d 815, 822 (11th Cir. 1989)). The district court then must
conduct a de novo review of the portions of the report to which timely and proper
objection is made. See id. at 783–84. The district court may “accept, reject, or modify in
whole or in part, the findings or recommendations made by the magistrate judge.” See id.
at 784.
III.

ANALYSIS

Upon de novo review of the record and careful consideration of the parties’
arguments and the controlling law, the Court finds that the Objections are due to be
overruled, the Report is due to be adopted, and the Decision is due to be reversed for the
reasons set forth below.
A.

The Report

In his Report, Magistrate Judge Kelly recommends that the Court reverse the
Decision because, in step four of the sequential analysis:
1.

the ALJ inexplicably disregarded the opinions of
Dr. David Tessler (“Dr. Tessler”) and Dr. James Brown
(“Dr. Brown”) that Amos suffers from moderate
restrictions in concentration, persistence, and pace
(“CPP”) and is limited to performing simple and
routine
(as
opposed
to
complex)
tasks
(“Tessler/Brown Opinions”); and
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2.

the ALJ did not explicitly weigh the opinions of
Dr. Gary Frick (“Dr. Frick”) or give reasons for
omitting such opinions from his residual functional
capacity (“RFC”) determination.

(See Doc. 20, pp. 6–8.) Based on controlling law, particularly Winschel v. Commissioner of
Social Security, 631 F.3d 1176 (11th Cir. 2011), Magistrate Judge Kelly concluded that:
(1) the ALJ’s deficient analysis of the Tessler/Brown Opinions and Dr. Frick’s opinions
constituted reversible error; and (2) the matter should be remanded to the Commissioner
for further proceedings. (See Doc. 20.)
B.

The Objections and Response

The Commissioner argues that the Court should reject the Report and affirm the
Decision because: (1) the ALJ’s conclusion that Amos “would be off-task 5% of the
workday” adequately addressed the Tessler/Brown Opinions concerning CCP (see
Doc. 20, pp. 4–5 (“5% Argument”)); (2) Magistrate Judge Kelly should not have treated
the “Mental Residual Functional Capacity Assessment” form completed by Dr. Frick
(“MRFC Form”) as a medical opinion (see id. at 2–3); and (3) Magistrate Judge Kelly
should have found that the ALJ’s failure to explicitly address the MRFC Form was
harmless error (see id. at 3–4).
Amos counters that the Court should accept the Report and overrule the
Objections because: (1) the ALJ’s improper consideration of the Tessler/Brown Opinions
is evident from the ALJ’s finding that Amos could return to her past work in skilled and
semi-skilled occupations (see Doc. 22, pp. 2–3); and (2) Dr. Frick’s opinion in the MRFC
Form “clearly conflicts” with the ALJ’s RFC assessment (see id. at 3–4).
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C.

The Tessler/Brown Opinions

In his Report, Magistrate Judge Kelly found that the Decision omits the
information necessary to determine: (1) “whether the ALJ intended to give great weight”
to the entirety of the Tessler/Brown Opinions“ and yet failed to account for [Amos’]
moderate limitations in [CCP] when making his RFC determination;” or (2) “intended to
give great weight to only a portion of the [Tessler/Brown Opinions] and lesser weight to
the balance of the [Tessler/Brown Opinions], but failed to provide reasons supported by
substantial evidence for doing so.” (Doc. 20, p. 8.) The Court agrees.
The Commissioner objects that such “omissions” in the ALJ’s analysis are not
reversible error because the 5% Argument reflects a proper and complete analysis of the
Tessler/Brown Opinions. The Court disagrees. The Commissioner’s post hoc
5% Argument does not explain how the ALJ’s finding that Amos could return to her past
work in skilled and semi-skilled occupations comports with the “great weight” given to
the Tessler/Brown Opinions—particularly the contrary opinion that Amos is limited to
performing simple and routine tasks. Accordingly, as to the Tessler/Brown Opinions, the
Court finds that the Report is due to be adopted and the Objections are due to be
overruled.
D.

The MRFC Form

The Court agrees with Magistrate Judge Kelly that “the ALJ committed reversible
error in not providing any weight (or even mentioning) Dr. Frick’s opinion in its
RFC determination.” Further, the Court disagrees with the Commissioner’s circular
argument that the ALJ need not have addressed the MRFC Form because it did not
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constitute a “medical opinion.” Notably, the pertinent regulations define “medical
opinions” as “statements from physicians and psychologists or other acceptable medical
sources that reflect judgment about the nature and severity of [the claimant’s]
impairment(s), including . . . symptoms, diagnosis and prognosis, what [the claimant]
can still do despite impairment(s), and [the claimant’s] physical or mental restrictions.”
See 20 C.F.R. § 404.1527(a)(2).
Here, there is no dispute that the MRFC Form was completed by a physician—
Dr. Frick—who examined (and possibly treated) Amos. On its face, the MRFC Form sets
forth “statements” of Dr. Frick that reflect his judgment concerning “the nature and
severity” of Amos’ impairments. As such, the ALJ was required to evaluate the
MRFC Form and state the weight—if any—accorded to it (“Evaluation Requirement”).
See 20 C.F.R. § 404.1527(c); see also Winschel, 631 F.3d at 1178–79. The ALJ could have
complied with the Evaluation Requirement by addressing specific medical opinion
evaluation factors in the Decision and stating—as the Commissioner argues now—that
Dr. Frick invaded the province of the Commissioner by opining that Amos’ problems
“contradict her ability to work.” The ALJ’s failure to even mention the MRFC Form in the
Decision is reversible error that is not cured under a “harmless error” analysis.
III.

CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED as follows:
1.

U.S. Magistrate Judge Gregory J. Kelly’s Report and Recommendation

(Doc. 20) is ACCEPTED, ADOPTED, and made part of this Order.

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2.

Defendant’s Objections to the Report and Recommendation (Doc. 21) are

OVERRULED.
3.

The final decision of the Commissioner of Social Security is REVERSED

and the matter is REMANDED to the Commissioner of Social Security.
4.

The Clerk is DIRECTED to enter Judgment in favor of Plaintiff Susan M.

Amos and against Defendant Commissioner of Social Security and to CLOSE this case.
DONE AND ORDERED in Orlando, Florida, this 28th day of February, 2017.

Copies to:
Counsel of Record
U.S. Magistrate Judge Gregory J. Kelly
U.S. Administrative Law Judge Bernard Porter
c/o Office of Disability Adjudication and Review
Desoto Building #400
8880 Freedom Crossing
Jacksonville, FL 32256-1224
Mary Ann Sloan, Regional Chief Counsel
Office of the General Counsel, Region IV
Social Security Administration
61 Forsyth Street, S.W., Suite 20T45
Atlanta, GA 30303-8920
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