Khan v. Commissioner of Social Security

Filing 27

ORDER AFFIRMING 26 the Commissioner's final decision in this case. The Clerk of Court is DIRECTED to enter judgment in favor of Defendant and CLOSE the file. Signed by Magistrate Judge Embry J. Kidd on 11/18/2022. (RMN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
AFRENA NAZRENE KHAN,
Plaintiff,
v.

Case No: 6:21-cv-1428-EJK

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
ORDER 1
This cause comes before the Court on Plaintiff's appeal of an administrative
decision denying her application for Supplemental Security Income (“SSI”), alleging
October 1, 2018, as the disability onset date. (Doc. 26 at 1.) In a decision dated March
2, 2021, the Administrative Law Judge (“ALJ”) found that Plaintiff was not disabled.
(Tr. 12.) Plaintiff has exhausted her available administrative remedies and the case is
properly before the Court. The undersigned has reviewed the record, the joint
memorandum (Doc. 26), and the applicable law. For the reasons stated herein, the
Court AFFIRMS the Commissioner’s decision.

1

On December 15, 2021, both parties consented to the exercise of jurisdiction by a
magistrate judge in this case. (Doc. 19.) Accordingly, the case was referred to the
undersigned by an Order of Reference on January 20, 2022. (Doc. 22.)

I.

ISSUE ON APPEAL

Plaintiff’s sole issue on appeal is whether the ALJ applied the correct legal
standards to the March 12, 2020 opinion of Plaintiff’s treating rheumatologist, Javaid
S. Sheikh, M.D.
II.

STANDARD OF REVIEW

The Eleventh Circuit has stated:
In Social Security appeals, we must determine whether the
Commissioner’s decision is supported by substantial evidence
and based on proper legal standards. Substantial evidence is
more than a scintilla and is such relevant evidence as a
reasonable person would accept as adequate to support a
conclusion. We may not decide the facts anew, reweigh the
evidence, or substitute our judgment for that of the
[Commissioner].
Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (citations and
quotations omitted). “With respect to the Commissioner’s legal conclusions, however,
our review is de novo.” Lewis v. Barnhart, 285 F.3d 1329, 1330 (11th Cir. 2002).
III.

ANALYSIS

Plaintiff states that the ALJ erred in evaluating the opinion of her doctor, Dr.
Sheikh, of the Orlando Arthritis Institute, arguing that the ALJ failed to adequately
consider the “supportability” and “consistency” factors as required by 20 C.F.R. §
404.1520c(b)(2). (Doc. 26 at 16.) Plaintiff further argues that this error, in turn, led the
ALJ to err at step three of the sequential evaluation process. (Id. at 17–18.) The
Commissioner argues in response that the ALJ’s treatment of Dr. Sheikh’s opinion

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adequately addressed the factors of supportability and consistency, and even if it did
not, any failure to do so was harmless. (Doc. 26 at 23–24.)
Under the revised regulations, the Commissioner no longer “defer[s] or give[s]
any specific evidentiary weight, including controlling weight, to any medical
opinion(s) or prior administrative medical finding(s), including those from [] medical
sources.” 20 C.F.R. §§ 1520c(a), 416.920c(a). Rather, the Commissioner must
“consider” the “persuasiveness” of all medical opinions and prior administrative
medical findings. Id. To that end, the Commissioner considers five factors: 1)
supportability; 2) consistency; 3) relationship with the claimant; 2 4) specialization and
5) other factors “that tend to support or contradict a medical opinion or prior
administrative medical finding.” Id. §§ 404.1520c(c); 416.920c(c).
The most important of these factors are supportability and consistency, and the
ALJ must explain the consideration of those two factors. Id. §§ 404.1520c(a), (b)(2);
416.920c(a), (b)(2). The ALJ may, but is not required to, explain how he or she
considered the other factors (i.e., relationship with claimant, specialization, and “other
factors”). Id. §§ 404.1520c(b)(2); 416.920c(b)(2). In assessing the supportability and
consistency of a medical opinion, the regulations provide that the ALJ need only
explain the consideration of these factors on a source-by-source basis—the regulations

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This factor combines consideration of the following issues: length of the treatment
relationship, frequency of examinations, purpose of the treatment relationship, extent
of the treatment relationship, and examining relationship. 20 C.F.R.
§§ 404.1520c(c)(3)(i)–(v); 416.920c(c)(3)(i)–(v).

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themselves do not require the ALJ to explain the consideration of each opinion from
the same source. Id. §§ 404.1520c(b)(1); 416.920c(b)(1). The regulations state:
[W]hen a medical source provides multiple medical
opinion(s) or prior administrative medical finding(s), we
will articulate how we considered the medical opinions or
prior administrative medical findings from the medical
source together in a single analysis using the factors listed
in paragraphs (c)(1) through (c)(5) of this section, as
appropriate. We are not required to articulate how we
considered each medical opinion or prior administrative
finding from one medical source individually.
Id. In sum, the ALJ’s analysis is directed to whether the medical source’s opinion is
supported by the source’s own records and consistent with the other evidence of
record.
On March 12, 2020, Dr. Sheikh completed an Application for Disabled Person
Parking Permit for Plaintiff. (Tr. 309.) This was a one-page, check-the-box form
submitted to the Florida Department of Highway Safety and Motor Vehicles wherein
Dr. Sheikh stated that Plaintiff needed a permanent disability permit due to severe
limitations in her ability to walk without the use of an assistive device. (Id.)
The ALJ noted in her opinion that “Dr. Sheikh submitted an application for a
disabled person parking permit, and noted Claimant has severe limitations and the
inability to walk without the use of [a] device.” (Tr. 25.) Later, in the opinion, the ALJ
noted:

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Dr. Sheikh’s opinions in the March 12, 2020 application for
a disabled person parking permit, were made for the
purpose of acquiring this permit. (Exhibit 18E). Further, the
opinions were not fully explained or broken down in more
specific limitations, which also infer these determinations
were not meant as permanent work restrictions.
Additionally, these opinions were in the form of
checkmarks as a basic foundational reason for the
application of the permit rather than as medical advice for
restrictions. These opinions are unpersuasive.
(Tr. 31.) The ALJ ultimately did not account for the use of a walker or other assistive
device in the RFC assessment. Therein, the ALJ determined that:
[C]laimant has the RFC for sedentary work (20 CFR
416.967(a)) except occasional balancing, stooping,
kneeling, crouching, crawling and climbing ramps and
stairs, but never ladders, ropes, or scaffolds. Avoid: work at
heights, work with dangerous machinery and dangerous
tools, constant temperatures over 90°F and under 40°F, foot
controls, constant pushing and pulling with the upper
extremities, and bilateral overhead reaching. Work tasks
should be 1-5 steps, and learned in 30 days.
(Tr. 23.) Using this RFC, the Vocational Expert (“VE”) testified that Plaintiff could
perform jobs such as a document preparer, parimutuel ticket checker, and call out
operator, and thus, she was not disabled. (Tr. 32–33.)
While the ALJ’s analysis of Dr. Sheikh’s opinion adequately addressed the
“supportability” factor, the ALJ did not address how Dr. Sheikh’s opinion was
inconsistent with other record evidence. Hanna v. Astrue, 395 F. App’x 634, 636 (11th
Cir. 2010) (“The ALJ must state the grounds for his decision with clarity to enable us
to conduct meaningful review.”); Flentroy-Tennant v. Astrue, No. 3:07-cv-101-J-TEM,

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2008 WL 876961, at *8 (M.D. Fla. Mar. 27, 2008) (“An ALJ is required to build an
accurate and logical bridge from the evidence to his or her conclusion.”).
Specifically, the ALJ did not analyze the numerous inconsistencies in the record
as to whether or not Plaintiff needed a walker to ambulate. For example, the ALJ
noted at one point, Plaintiff’s “[g]ait [was] normal; no assistive device is needed.” (Tr.
23). However, the ALJ also recognized that Plaintiff was prescribed a walker at the
hospital “for unknown reasons,” and summarily concluded, “the evidence fails to
support a need for same.” (Id.) The ALJ then stated at one point that “Dr. Mesa noted
Claimant complained of being unable to move her left leg and a few minutes after, was
seen walking around without focal deficits.” (Tr. 26.) At another turn, the ALJ stated
Plaintiff’s consultative psychologist saw her “on June 22, 2020 and observed gait was
slow and effortful, as she was using a walker.” (Tr. 27.) What the ALJ failed to do was
contextualize Dr. Sheikh’s opinion regarding Plaintiff’s need for an ambulatory device
and discuss its consistency (or lack thereof) with other record evidence.
Because the ALJ did not fully explain her consideration of the consistency factor
with regard to Dr. Sheikh’s opinion, the undersigned would ordinarily conclude that
ALJ’s determination is not supported by substantial evidence. Brown v. Comm’r of Soc.
Sec., No. 6:20-cv-840-Orl-GJK, 2021 WL 2917562, at *4 (M.D. Fla. July 12, 2021)
(noting that when evaluating medical opinions under the new regulations, the ALJ
must “explain his decision, particularly with respect to supportability and consistency”)
(emphasis in original).

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However, the Commissioner goes on to argue that, even if the ALJ erred in
rejecting Dr. Sheikh’s opinion, the error was harmless, because, at step five, the VE
testified that the use of a walker to ambulate would not preclude Plaintiff from
performing the three jobs the VE identified. (Tr. 59.) Specifically, the ALJ asked the
VE, “If the individual utilized a walked to ambulate, would that impact these jobs?”
and the VE responded, “No.” (Id.)
Thus, the Court agrees that such error was harmless because the application of
Dr. Sheikh’s limitation of a walker would not change the ALJ’s consideration of jobs
Plaintiff could perform in the national economy. Caldwell v. Barnhart, 261 F. App’x
188, 190 (11th Cir. 2008) (unpublished) (finding harmless error where ALJ failed to
apply limitations set by Plaintiff’s doctor where such limitations would have not
changed the result). Based on the VE’s testimony, the ALJ found that Plaintiff had the
RFC to perform existing jobs in significant numbers in the national economy. And the
VE testified that the jobs could be done with the use of an ambulatory device. Thus,
the ultimate failure of the ALJ to articulate the inconsistency of Dr. Sheikh’s opinion
in light of the record evidence and why it was disregarded amount to harmless error.
Plaintiff counters that the ALJ’s failure to properly evaluate Dr. Sheikh’s
opinion led the ALJ to err at step three. (Doc. 26 at 17.) There, the ALJ found that
Plaintiff did not have an impairment or combination of impairments that met or
medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1. (Tr. 22). At step three, the ALJ elaborated as follows:

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In making this finding, the undersigned has given particular
consideration to Sections 1.00 et seq., Musculoskeletal
System; and 11.00 et seq., Neurological Disorders. Despite
Claimant’s combined impairments, the medical evidence
does not document listing-level severity, and no acceptable
medical source has mentioned findings equivalent in
severity to the criteria of any listed impairment, individually
or in combination.
(Tr. 23.)
Plaintiff argues that Dr. Sheikh’s opinion that Plaintiff had an inability to walk
without the use of an assistive device supported a finding that Plaintiff’s spinal disorder
equaled the requirements of Listing 1.04(C). (Doc. 26 at 17–18.) This does not appear
to be accurate. As the Commissioner points out, Listing 1.04(C) requires a showing of
lumbar spinal stenosis resulting in pseudoclaudication. 20 C.F.R. Part 404, Subpart P,
Appendix 1, § 1.04C. (Doc. 26 at 27.) “To ‘meet’ a Listing, a claimant must have a
diagnosis included in the Listings and must provide medical reports documenting that
the conditions meet the specific criteria of the Listings and the duration requirement.”
Wilson v. Barnhart, 284 F.3d 1219, 1224 (11th Cir. 2002) (per curiam) (citations
omitted). Plaintiff has not pointed the undersigned to any documentation to conclude
that Plaintiff has the required diagnosis to meet Listing 1.04(C).
IV.

CONCLUSION

Upon consideration of the foregoing, it is ORDERED and ADJUDGED that:
1. The Commissioner’s final decision in this case is AFFIRMED.
2. The Clerk of Court is DIRECTED to enter judgment in favor of Defendant
and CLOSE the file.

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DONE and ORDERED in Orlando, Florida on November 18, 2022.

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