Julian v. Commissioner of Social Security
OPINION AND ORDER re 22 Memorandum Social Security - Defendant Response, 1 Complaint. The decision of the Commissioner is affirmed.The Clerk is directed to enter final judgment in favor of the Commissioner and close the case. Signed by Magistrate Judge Mark A. Pizzo on 9/19/2022. (JMF)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
REBECCA D. JULIAN,
Case No. 6:21-cv-1446-MAP
COMMISSIONER OF SOCIAL SECURITY
Plaintiff seeks judicial review of the denial of her claim for a period of disability
and disability insurance benefits (DIB). Plaintiff argues that the Administrative Law
Judge (ALJ) committed reversible error by failing to adequately evaluate the
persuasiveness of the medical source opinions using the five factors set forth in the new
regulations and failing to provide substantial evidence in support of the residual
functional capacity (RFC) assessment. As the ALJ’s decision was based on substantial
evidence and employed proper legal standards, the Commissioner’s decision is
Plaintiff, who was born in 1978, claimed disability beginning May 3, 2019 (Tr.
166). Plaintiff was 41 years old on the alleged onset date (Tr. 30). Plaintiff obtained
at least a high school education, and her past relevant work experience included work
as a license clerk, a receptionist at a doctor’s office, a billing clerk, and a manager at a
liquor establishment (Tr. 44, 65, 191). Plaintiff alleged disability due to lower back
pain, anxiety, depression, restless leg syndrome (RLS), being overweight, and sharp,
shooting pain moving up her legs from her heels (Tr. 190).
Given her alleged disability, Plaintiff filed an application for DIB (Tr. 166-69).
The Social Security Administration (SSA) denied Plaintiff’s claims both initially and
upon reconsideration (Tr. 74-103, 106-22). Plaintiff then requested an administrative
hearing (Tr. 123-24). Per Plaintiff’s request, the ALJ held a telephonic hearing at
which Plaintiff appeared and testified (Tr. 35-73). Following the hearing, the ALJ
issued an unfavorable decision finding Plaintiff not disabled and accordingly denied
Plaintiff’s claims for benefits (Tr. 12-34). In rendering the administrative decision, the
ALJ concluded that Plaintiff met the insured status requirements through September
30, 2024, and had not engaged in substantial gainful activity since May 3, 2019, the
alleged onset date (Tr. 17). After conducting a hearing and reviewing the evidence of
record, the ALJ determined that Plaintiff had the following severe impairments:
obesity, degenerative disc disease (DDD), polyneuropathy, depression, anxiety
disorder, and seizure disorder (Tr. 17). Notwithstanding the noted impairments, the
ALJ determined that Plaintiff did not have an impairment or combination of
impairments that met or medically equaled one of the listed impairments in 20 C.F.R.
Part 404, Subpart P, Appendix 1 (Tr. 19). The ALJ then concluded that Plaintiff
retained the RFC to perform sedentary work, except that Plaintiff could never climb
ladders, ropes, or scaffolds; could frequently balance, kneel, crouch, or crawl; could
frequently reach bilaterally; could occasionally be exposed to weather or humidity,
extreme cold, and extreme heat; could never be exposed to workplace hazards, such
as moving mechanical parts and high, exposed places; was limited to simple and
routine tasks but not at a production-rate pace; had the ability to make simple workrelated decisions; and could tolerate occasional changes in the work setting (Tr. 21).
In formulating Plaintiff’s RFC, the ALJ considered Plaintiff’s subjective complaints
and determined that, although the evidence established the presence of underlying
impairments that reasonably could be expected to produce the symptoms alleged,
Plaintiff’s statements as to the intensity, persistence, and limiting effects of her
symptoms were not entirely consistent with the medical evidence and other evidence
Considering Plaintiff’s noted impairments and the assessment of a vocational
expert (VE), however, the ALJ determined that Plaintiff could not perform her past
relevant work (Tr. 29). Given Plaintiff’s background and RFC, the VE testified that
Plaintiff could perform other jobs existing in significant numbers in the national
economy, such as a charge account clerk, an order clerk, and a document preparer (Tr.
30, 66). Accordingly, based on Plaintiff’s age, education, work experience, RFC, and
the testimony of the VE, the ALJ found Plaintiff not disabled (Tr. 31). Given the
ALJ’s finding, Plaintiff requested review from the Appeals Council, which the Appeals
Council denied (Tr. 1-6, 159-62). Plaintiff then timely filed a complaint with this Court
(Doc. 1). The case is now ripe for review under 42 U.S.C. § 405(g).
Standard of Review
To be entitled to benefits, a claimant must be disabled, meaning the claimant
must be unable “to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected to result
in death or which has lasted or can be expected to last for a continuous period of not
less than twelve months.”
42 U.S.C. § 423(d)(1)(A).
A “physical or mental
impairment” is an “impairment that results from anatomical, physiological, or
psychological abnormalities, which are demonstrable by medically acceptable clinical
and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3).
To regularize the adjudicative process, the SSA promulgated the detailed
regulations currently in effect. These regulations establish a “sequential evaluation
process” to determine whether a claimant is disabled. 20 C.F.R. § 404.1520. If an
individual is found disabled at any point in the sequential review, further inquiry is
unnecessary. 20 C.F.R. § 404.1520(a). Under this process, the ALJ must determine,
in sequence, the following: whether the claimant is currently engaged in substantial
gainful activity; whether the claimant has a severe impairment, i.e., one that
significantly limits the ability to perform work-related functions; whether the severe
impairment meets or equals the medical criteria of 20 C.F.R. Part 404, Subpart P,
Appendix 1; and whether the claimant can perform his or her past relevant work. 20
C.F.R. § 404.1520(a)(4). If the claimant cannot perform the tasks required of his or
her prior work, step five of the evaluation requires the ALJ to decide if the claimant
can do other work in the national economy in view of his or her age, education, and
work experience. 20 C.F.R. § 404.1520(a)(4)(v). A claimant is entitled to benefits only
if unable to perform other work. Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987); 20
C.F.R. § 404.1520(g)(1).
A determination by the Commissioner that a claimant is not disabled must be
upheld if it is supported by substantial evidence and comports with applicable legal
standards. See 42 U.S.C. § 405(g). “Substantial evidence is more than a scintilla and
is such relevant evidence as a reasonable person would accept as adequate to support
a conclusion.” Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011)
(citation and internal quotation marks omitted).
While the court reviews the
Commissioner’s decision with deference to the factual findings, no such deference is
given to the legal conclusions. Ingram v. Comm’r of Soc. Sec., 496 F.3d 1253, 1260 (11th
Cir. 2007) (citations omitted).
In reviewing the Commissioner’s decision, the court may not reweigh the
evidence or substitute its own judgment for that of the ALJ, even if it finds that the
evidence preponderates against the ALJ’s decision.
Winschel, 631 F.3d at 1178
(citations omitted); Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983)
(citations omitted). The Commissioner’s failure to apply the correct law, or to give
the reviewing court sufficient reasoning for determining that he or she has conducted
the proper legal analysis, mandates reversal. Ingram, 496 F.3d at 1260 (citation
omitted). The scope of review is thus limited to determining whether the findings of
the Commissioner are supported by substantial evidence and whether the correct legal
standards were applied. 42 U.S.C. § 405(g); Wilson v. Barnhart, 284 F.3d 1219, 1221
(11th Cir. 2002) (per curiam) (citations omitted).
Plaintiff argues that the ALJ erred by failing to properly consider the medical
opinions of Monika Lippold, M.D., a consultative examiner, and Gary Weiss, M.D.,
Plaintiff’s treating neurologist. Plaintiff contends that the ALJ’s assessment that
Plaintiff could perform a reduced range of sedentary work conflicts with both of those
medical opinions. As a result, Plaintiff asserts that the RFC is not supported by
Previously, in the Eleventh Circuit, an ALJ was required to afford the testimony
of a treating physician substantial or considerable weight unless “good cause” was
shown to the contrary. Winschel., 631 F.3d at 1179; Crawford v. Comm’r of Soc. Sec., 363
F.3d 1155, 1159 (11th Cir. 2004) (per curiam) (citation omitted). Good cause existed
where: (1) the treating physician’s opinion was not bolstered by the evidence; (2) the
evidence supported a contrary finding; or (3) the treating physician’s opinion was
conclusory or inconsistent with the physician’s own medical records. Phillips v.
Barnhart, 357 F.3d 1232, 1240-41 (11th Cir. 2004) (citation omitted). Claims filed on
or after March 27, 2017 are governed by a new regulation applying a modified standard
for the handling of opinions from treating physicians, however. See 20 C.F.R. §
404.1520c; see also Schink v. Comm’r of Soc Sec., 935 F.3d 1245, 1259 n.4 (11th Cir.
2019). Of note, the new regulations remove the “controlling weight” requirement
when considering the opinions of treating physicians for applications submitted on or
after March 27, 2017. 20 C.F.R. § 404.1520c(a); Harner v. Soc. Sec. Admin., Comm’r, 38
F.4th 892, 895-98 (11th Cir. 2022); Yanes v. Comm’r of Soc. Sec., No. 20-14233, 2021
WL 2982084, at *5 n.9 (11th Cir. July 15, 2021) (per curiam). 1 Indeed, the Eleventh
Circuit recently concluded that, since the new regulations fall within the scope of the
Commissioner’s authority and are not arbitrary and capricious, the new regulations
abrogate the Eleventh Circuit’s prior precedents applying the so-called treatingphysician rule. Harner, 38 F.4th at 896. Accordingly, since Plaintiff submitted her
application for benefits on September 26, 2019 (Tr. 163-69), the ALJ properly applied
the new regulation.
Namely, under 20 C.F.R. § 404.1520c, an ALJ will not defer or give any specific
evidentiary weight, including controlling weight, to any medical opinion or prior
administrative finding, including from a claimant’s medical source. 20 C.F.R. §
404.1520c(a); see Tucker v. Saul, Case No. 4:19-CV-00759-RDP, 2020 WL 3489427, at
*6 (N.D. Ala. June 26, 2020). Rather, in assessing a medical opinion, an ALJ
considers a variety of factors, including but not limited to whether an opinion is wellsupported, whether an opinion is consistent with the record, the treatment relationship
between the medical source and the claimant, and the area of the medical source’s
specialization. 20 C.F.R. § 404.1520c(c)(1)-(4). The primary factors an ALJ will
consider when evaluating the persuasiveness of a medical opinion are supportability
and consistency. 20 C.F.R. § 404.1520c(a) & (b)(2). Specifically, the more a medical
Unpublished opinions are not considered binding precedent but may be cited as persuasive
authority. 11th Cir. R. 36-2.
source presents objective medical evidence and supporting explanations to support the
opinion, the more persuasive the medical opinion will be. 20 C.F.R. § 404.1520c(c)(1).
Further, the more consistent the medical opinion is with the evidence from other
medical sources and nonmedical sources, the more persuasive the medical opinion will
be. 20 C.F.R. § 404.1520c(c)(2). And, 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 do not
require the ALJ to explain the consideration of each opinion from the same source.
See 20 C.F.R. § 404.1520c(b)(1). Beyond supportability and consistency, an ALJ may
also consider the medical source’s specialization and the relationship the medical
source maintains with the claimant, including the length of the treatment relationship,
the frequency of examinations, the purpose of the treatment relationship, the extent of
the treatment relationship, and whether the medical source examined the claimant, in
addition to other factors. 20 C.F.R. § 404.1520c(c)(3)(i)-(v), (4), & (5). While the ALJ
must explain how he or she considered the supportability and consistency factors, the
ALJ need not explain how he or she considered the other factors. 2 20 C.F.R. §
In this instance, the ALJ considered the medical opinions of record, including
the opinions from Dr. Lippold, Dr. Weiss, and the state agency medical consultants,
The exception is when the record contains differing but equally persuasive medical opinions
or prior administrative medical findings about the same issue. See 20 C.F.R. §
in determining that Plaintiff was not disabled (Tr. 21-29). Notwithstanding Plaintiff’s
arguments to the contrary, the ALJ properly considered the opinions of Dr. Lippold
and Dr. Weiss in determining Plaintiff’s RFC and provided substantial evidence in
support of the decision.
As the ALJ discussed, Plaintiff met with Dr. Lippold for a single consultative
physical examination in November 2019 at the request of the Division of Disability
Determinations (Tr. 23, 315-26). Plaintiff presented with complaints of back pain,
joint pain, RLS, obesity, and mental health issues, including depression and anxiety,
and stated that she could not work because of her medical problems (Tr. 315-16). As
to Plaintiff’s general appearance, Dr. Lippold noted that Plaintiff was frequently
tearful during the examination, needed assistance to lie down and get back up, kept
her right arm in flexion, showed some difficulty getting off the chair, was obese, and
sitting hip flexion was 90 degrees bilaterally (Tr. 317-19). Upon examination, Dr.
Lippold noted that Plaintiff’s upper extremities showed tenderness and mild to
moderate swelling at the right elbow and distal humerus with slight erythema and
normal temperature with no other edema; no clubbing; intact and normal sensory
perception; 4/5 muscle strength in the right upper extremity due to pain; 5/5 muscle
strength in the left upper extremity; 4/5 grip strength in the right hand due to pain; 5/5
grip strength in the left hand; +1 deep tendon reflexes in the upper extremities
bilaterally; normal radial pulse wrists; and pain to dorsiflex at the right wrist (Tr. 319).
As to Plaintiff’s lower extremities, Dr. Lippold indicated that Plaintiff showed no
edema; intact and normal sensory perception; 5/5 muscle strength in the left and right
lower extremities; deep tendon reflexes were +2 at the patella and +1 at the Achilles;
distal pulses were positive in the lower extremities as the posterior tibia and dorsalis;
no joint deformities were noted; and her straight leg raise test showed lower back pain
on the left and the right at 70 degrees (Tr. 319-20).
Dr. Lippold observed that Plaintiff’s back was straight with no bony deformity,
no paravertebral muscle spasms, and no point tenderness in the right and left SI joint
but that the seated leg raise from the supine position showed lower back pain at 75
degrees (Tr. 320). Plaintiff demonstrated a diminished range of motion in her back,
hips, and knees (Tr. 323-25). Regarding Plaintiff’s neurological issues, Dr. Lippold
noted only that Plaintiff’s gross motor skills were decreased but not absent in her right
upper extremity, and Plaintiff otherwise showed grossly intact cranial nerves; sensory
perception to pain, light touch, temperature, and vibration were all intact and normal;
gross motor skills in the left upper extremity were intact; and fine motor skills in both
upper extremities were in intact (Tr. 320). As to Plaintiff’s gait and station, Dr.
Lippold found that Plaintiff walked with a very slow but otherwise normal gait, did
not require the use of an assistive device, could walk on her toes, and could squat about
halfway but remained unable to walk on her heels, stating that she would experience
pain in the left foot with pressure (Tr. 320). With respect to Plaintiff’s mental status,
Dr. Lippold stated that Plaintiff cried at the time of the examination but was otherwise,
alert; oriented to time, place, and person; showed no obvious memory loss; affect
appeared normal; no suicidal ideation was present at the time of examination;
cognitive functioning was adequate; and stream of thought was adequate (Tr. 320).
Given her findings, Dr. Lippold diagnosed Plaintiff with depression and anxiety
disorder, noting that Plaintiff received medication and medical care for each; right
elbow pain, lumbago, and right and left heel pain, all of unclear etiology, for which
Plaintiff did not receive medication but was under medical care; RLS, for which
Plaintiff received medication and was under medical care; and obesity (Tr. 321). Based
on her examination and assessment of Plaintiff’s impairments, Dr. Lippold opined that
Plaintiff could lift or carry 20 pounds occasionally on the left side only; could lift and
carry 10 pounds frequently on the left side only; could stand and walk two to four
hours cumulatively in an eight-hour day; could, if needed, sit four to six hours
cumulatively in an eight-hour day; and could use upper body movements and
coordinate activities with her hands (Tr. 321). Dr. Lippold did not indicate whether
or to what extent Plaintiff could perform activities with her right arm (Tr. 321). In
addition, Dr. Lippold noted that Plaintiff’s husband drove Plaintiff to the examination
and that Plaintiff was informed and acknowledged that she needed to actively pursue
medical treatment plans for the medical impressions and problems outlined by Dr.
Lippold (Tr. 321).
After discussing Dr. Lippold’s findings and the other evidence of record, the
ALJ found Dr. Lippold’s opinion reasonably consistent with the record as a whole and
therefore moderately persuasive (Tr. 23, 27). The ALJ noted that some discrepancies
existed between Dr. Lippold’s specific opinions and markings and the limitations
reflected in the RFC, but that such discrepancies were based on the ALJ’s independent
review, his consideration of Plaintiff’s testimony, and all the other evidence in the
aggregate, some of which was not available to Dr. Lippold at the time she offered her
opinion (Tr. 27). As the Commissioner contends, the ALJ comprehensively discussed
the other evidence of record that generally supported the limitations set forth by Dr.
Lippold, including but not limited to treatment notes, including those from Dr. Weiss,
indicating limited abnormalities, such as decreased range of motion, tenderness, and
muscle spasms, or no abnormalities, such as normal gait, reflexes, pulses, sensation,
and full strength in all extremities with only a mild reduction in the right upper
extremity on occasion (Tr. 22-29, 285-86, 290-91, 305, 310-11, 347-48, 352-53, 366-67,
375-76, 381-82, 387-88).
Further, the RFC for a reduced range of sedentary work incorporates or is at
least not inconsistent with the limitations set forth by Dr. Lippold, and, in fact,
provides additional limitations beyond those set forth by Dr. Lippold. Sedentary work
involves lifting no more than 10 pounds at a time and occasionally lifting or carrying
articles like docket files, ledgers, and small tools, with some sitting involved but with
a certain amount of walking and standing often necessary in carrying out such jobs.
20 C.F.R. § 404.1567(a); Social Security Ruling (SSR) 83-10, 1983 WL 31251, at *5
(1983). The SSA considers jobs sedentary if they require occasional walking and
standing, and, since sedentary work, by its nature, is performed in a seated position,
sedentary jobs entail no significant stooping. SSR 83-10, 1983 WL 31251, at *5; see 20
C.F.R. § 404.1567(a).
As applied to jobs at the sedentary level of exertion,
“occasional” means that periods of standing or walking should generally total no more
than about two hours of an eight-hour workday, and periods of sitting should generally
total approximately six hours of an eight-hour workday. SSR 83-10, 1983 WL 31251,
at *5. Additionally, “[m]ost unskilled sedentary jobs require good use of the hands
and fingers for repetitive hand-finger actions.” SSR 83-10, 1983 WL 31251, at *5.
By limiting Plaintiff to a reduced range of sedentary work, the ALJ found
Plaintiff’s exertional limitations more restrictive than Dr. Lippold’s limitation to lifting
or carrying up to 20 pounds occasionally and incorporated the sitting, standing, and
Dr. Lippold did not address environmental, behavioral, or
cognitive restrictions, but the ALJ included several restrictions to account for
Plaintiff’s limitations. Regardless, as the Commissioner correctly notes, “an ALJ need
not adopt every part of an opinion that the ALJ finds persuasive.” Misla v. Comm’r of
Soc. Sec., Case No: 6:20-cv-1076-DCI, 2021 WL 2417084, at *2 (M.D. Fla. June 14,
2021). The decision shows that the ALJ discussed the evidence of record at length,
including the evidence supporting and contrasting Dr. Lippold’s opinion, and
incorporated the limitations the ALJ found moderately persuasive. In doing so, the
ALJ provided an appropriate rationale for finding Dr. Lippold’s opinion moderately
persuasive and incorporating those limitations that the ALJ found supported by the
Accordingly, the ALJ properly considered Dr. Lippold’s opinion, and
substantial evidence supports the decision.
The ALJ also properly considered the opinion of Dr. Weiss (Tr. 27-28). As the
ALJ thoroughly discussed, Plaintiff began treating with Dr. Weiss, a neurologist, in
February 2020, seeking an evaluation for treatment of her “complex neurological
symptoms” (Tr. 23-26, 372-77). At that time, Plaintiff complained of headache, neck
pain, pain in the right upper arm only, mid-back pain, low back pain with numbness
in her bilateral legs, dizziness, vertigo with nausea and vomiting, lightheadedness,
fainting, difficulty concentrating, decreased concentrating ability, confusion,
disorientation, memory lapses or loss, and convulsion spells (Tr. 372, 375). Upon
initial neurologic examination, Dr. Weiss noted, among other things, that Plaintiff’s
gait and station were normal, including tandem, toe, and heel walking; strength was
normal and symmetric in all four extremities; reflexes were normal and symmetric in
the upper and lower extremities; sensation was intact in the four extremities; cerebellar
testing was within normal limits; and cerebrovascular exam was normal (Tr. 375-76).
Dr. Weiss noted spasms and tenderness in the thoracic spine; spasms, tenderness, and
reduced movement in the lumbar spine; and spasms, tenderness, and reduced
movement in the cervical spine (Tr. 376). Dr. Weiss assessed Plaintiff as having
weekly spells with aura, loss of consciousness, and postictal confusion, leading to a
suspicion of seizures; lower back pain with radicular symptoms; lower thoracic spine
pain; and neck pain (Tr. 376). Dr. Weiss then set forth a treatment plan for Plaintiff,
including a brain MRI, EEG, spinal MRI, medication, and no driving until loss-ofconsciousness episodes could be treated (Tr. 376-77).
The following month, Dr. Weiss performed an MRI of Plaintiff’s brain with and
without paramagnetic contrast agent, which yielded normal results (Tr. 370-71).
Plaintiff also underwent an EEG with Dr. Weiss at that time, which similarly yielded
results within normal limits (Tr. 369). Plaintiff followed up with Dr. Weiss thereafter
to review testing and evaluation of her treatment (Tr. 363-68). Plaintiff, whose
husband accompanied her to the appointment, reported that she continued to
experience seizures, headaches, dizziness, vertigo with nausea and vomiting, neck
pain, mid-back pain, and low back pain and that she experienced a seizure four days
prior to her appointment (Tr. 363). Notwithstanding several complaints by Plaintiff,
Dr. Weiss observed that Plaintiff was alert and oriented; memory and other cortical
functions were grossly intact; gait and station were normal, including tandem, toe, and
heel walking; strength was normal and symmetric in all four extremities; reflexes were
normal and symmetric in the upper and lower extremities; sensation was intact;
cerebellar testing was within normal limits; and cerebrovascular exam was normal (Tr.
366-67). Dr. Weiss again noted spasms and tenderness in the thoracic spine; spasms,
tenderness, and reduced movement in the lumbar spine; and spasms, tenderness, and
reduced movement in the cervical spine (Tr. 367). Dr. Weiss indicated that Plaintiff
should get a 72-hour EEG once she had insurance and obtain MRIs of her cervical,
thoracic, and lumbosacral spine when feasible (Tr. 367). He also increased and
prescribed medication, told her to follow up in one month, and indicated that Plaintiff
should not drive until her loss-of-consciousness episodes could be treated and she was
seizure-free for at least six months in accordance with Florida law (Tr. 367). Following
that appointment, Plaintiff underwent an MRI of the lumbosacral spine, which
showed a moderate herniation with stenosis at L-4-5 (Tr. 362).
Subsequently, in April 2020, Plaintiff returned for a telehealth visit with Dr.
Weiss, wherein she still complained of a lot of lumbar spine pain but stated that her
mid-back pain had improved and was tolerable (Tr. 349-54). Plaintiff further indicated
that she had experienced no seizures since the last office visit and that her thoracic
spine pain was better but that her lumbosacral spine pain was not better, muscle
relaxers did not help, and she had some ongoing neck and arm pain (Tr. 349). Despite
Plaintiff’s list of complaints, including headache, neck pain, worsening vision,
difficulty swallowing, pain in the right upper arm, shoulder joint pain, mid-back pain,
lower back pain, swelling in both feet, difficulty concentrating, decreased
concentrating ability, memory lapses and loss, anxiety, depression, and insomnia, Dr.
Weiss found that Plaintiff was alert and oriented; no evidence of a mood or thought
disorder; memory and other cortical functions were grossly intact; gait and station
were normal, including tandem, toe, and heel walking; cranial nerve testing was within
normal limits; strength was normal and symmetric in all four extremities; reflexes were
normal and symmetric in the upper and lower extremities; sensation was intact in the
four extremities; cerebellar testing was within normal limits; and cerebrovascular exam
was normal (Tr. 349, 352). As with the prior appointments, Dr. Weiss noted spasms
and tenderness in the thoracic spine; spasms, tenderness, and reduced movement in
the lumbar spine; and spasms, tenderness, and reduced movement in the cervical spine
(Tr. 352-53). Dr. Weiss prescribed Plaintiff three different medications, provided
Plaintiff with information regarding herniation treatment options, recommended
inversions due to the pandemic, and indicated that Plaintiff should not drive until her
loss-of-consciousness episodes were properly treated and she remained seizure-free for
six months in accordance with Florida law (Tr. 353-54).
In addition, Plaintiff underwent several diagnostic tests during April 2020.
Initially, Dr. Weiss performed MRIs of Plaintiff’s thoracic spine and cervical spine
(Tr. 359-61). The MRI of the thoracic spine showed normal findings, while the MRI
of the cervical spine showed abnormal results with the presence of a small herniation
at C-5-6 (Tr. 359-61). Dr. Weiss performed an EEG where Plaintiff was awake and
drowsy, which yielded results within normal limits (Tr. 355-56). Dr. Weiss also
performed a 72-hour ambulatory EEG with video, which showed abnormal results
with intermittent right temporal spikes, dys. grade II suggestive of partial complex
seizures (Tr. 357-58).
The next month, Plaintiff had another telehealth follow-up appointment with
Dr. Weiss (Tr. 344-48). She indicated that she experienced a nocturnal seizure the
previous week and woke up with a severe headache, nausea, vomiting, and tinnitus
(Tr. 344). She informed Dr. Weiss that her headaches had “calmed down quite a bit”
and only occurred about once per week with pain as a five to six on a 10-point scale;
she had not had any dizziness, vertigo, or lightheadedness since being on medication
for her seizures; her short-term memory remained poor; she continued to experience
intermittent neck pain on the right side with right arm pain; she experienced issues
with grip strength and dropping items with her right arm and hand; she denied
numbness or tingling in her arms or hands; her pain level with range of motion ranged
from a two to a six on a 10-point scale; her mid-back pain had improved since her last
visit; she denied chest pain or shortness of breath; she continued to experience constant
lower back pain that radiated into her bilateral hips, buttock, and legs; she experienced
constant pain with numbness and tingling on the outer thighs; denied any weakness in
her lower extremities; she felt like she was walking on golf balls with the left worse
than the right; she had swelling in both feet; she rated her pain level as a five to 10 on
a 10-point scale; she reported doing inversion three to four times per day; she indicated
that hydrocodone did not help; she said her sleeping had been poor, getting only about
three hours of uninterrupted sleep per night; she experienced excessive daytime
fatigue; and indicated that medications kept both her anxiety and depression stable
and that they had each improved since the seizures were under control (Tr. 344-45).
Despite all of Plaintiff’s complaints, Dr. Weiss set forth the same findings on
examination that he had at all the prior appointments (Tr. 347-48). In his treatment
plan, Dr. Weiss indicated that the seizures were down from two to three times per
week to one nocturnal seizure in a month, he adjusted Plaintiff’s medication regimen,
he provided her with information regarding options for her herniations, he
recommended continuing the inversions during the pandemic, he indicated that she
should not drive again until the loss-of-consciousness episodes were treated and she
remained free of such episodes for six months in accordance with Florida law, and he
directed her to follow up again in one month (Tr. 348).
Then, in June 2020, Plaintiff had another telehealth follow-up appointment
with Dr. Weiss (Tr. 384-88). Dr. Weiss indicated that Plaintiff reported a seizure the
previous week but then later noted that she offered a complaint of a nocturnal seizure
the month prior to her last office visit with no other seizures since then (Tr. 384).
Plaintiff indicated that her headaches had calmed down quite a bit to the point where
she only experienced one headache per week; her headaches were a five to six on a 10point scale and were associated with blurred vision, double vision, dizziness, nausea,
vomiting, and light and sound sensitivity; she denied any tinnitus; she took Tylenol
and laid down in a dark place to treat her headaches; she indicated that she had not
had any dizziness, vertigo, or lightheadedness since being put on medication for her
seizures; she indicated her short-term memory was still poor and that she was forgetful;
she reported intermittent neck pain on the right side with pain in the right arm; she
said she experienced issues with grip strength and dropping items with her right arm
and hand; she denied any numbness or tingling in her arms or hands; she heard a
fizzing noise with range of motion; she rated her pain level in the cervical spine as a
three to four on a 10-point scale; she reported constant mid-back pain that radiated
into the rib cages and down her lower back, with right greater than left; she rated her
thoracic spine pain as a two to three on a 10-point scale; she reported chest pains and
shortness of breath on occasion; she reported constant lower back pain that radiated
into her bilateral hips, buttock, and legs; she reported constant pain with numbness
and tingling on the outer thighs; she denied any weakness in her lower extremities; she
reported feeling like there was a golf ball on the ball of her feet, with left greater than
right, which made it hard for her to walk at times; she reported her lumbosacral pain
was an eight on a 10-point scale; she stated her appetite diminished; she stated her
sleeping had been poor, with only about three hours of uninterrupted sleep per night;
and she indicated that medication stabilized both her anxiety and depression and that
the anxiety had improved since her seizures were controlled (Tr. 384-85). Dr. Weiss
then repeated the same physical findings upon neurologic examination as he had at
the prior appointments and made the same notations regarding the reduction in
seizures and the treatment plan of medication and no driving until she was seizurefree for six months (Tr. 387-88).
In August 2020, Plaintiff attended her final telehealth appointment with Dr.
Weiss (Tr. 378-83). She reported some numbness and tingling in the outer sides of her
thighs and her knees after working from home and sitting for eight hours on the
computer, but she stated that the issues started to improve after two weeks since she is
no longer performing the work (Tr. 378). She indicated that she may have experienced
a possible seizure the other day, but that could have been related to missing her
morning dose of Keppra (Tr. 378-79). Plaintiff again indicated that her headaches
calmed down quite a bit and that she experienced a headache about once per week,
with the most recent one only noticed after experiencing a possible seizure; she rated
her headache pain as a seven to nine on a 10-point scale and listed the same associated
symptoms as previously noted; she indicated that she did not experience any dizziness
or lightheadedness since being on the seizure medication but that her constant vertigo
was not improving and her balance was worse; she continued to experience poor short20
term memory and forgetfulness; she reported continued intermittent neck pain on the
right side with right arm pain and issues with grip strength and dropping items with
her right arm and hand; she reported some numbness or tingling in her right arm or
hand; she indicated her pain level in the cervical spine ranged from a four to an eight
on a 10-point scale; she reported continued constant mid-back pain that radiated into
the rib cages and down into her lower back, with the right worse than the left; she rated
her thoracic spine pain from a four to an eight on a 10-point scale; she reported
constant lower back pain that radiated into her bilateral hips, buttock, and legs; she
reported constant pain with numbness and tingling on the outer thighs but denied any
weakness in her lower extremities; she reported feeling like there was a golf ball on the
ball of her feet, with the left worse than the right, which made it difficult for her to
walk at times; she indicated that she stumbled and fell four times since her prior visit;
she rated her lumbosacral spine pain from an eight to a 10+ on a 10-point scale; she
indicated that her appetite diminished and she continued to lose weight; she indicated
her sleep continued to be poor, with only about three hours of uninterrupted sleep per
night; she experienced excessive daytime fatigue; and medications kept both her
anxiety and depression stable, with her anxiety improving since getting the seizures
under control (Tr. 379-80). As with the prior appointments, Dr. Weiss repeated the
same physical findings upon neurologic examination and set forth the same notations
regarding the reduction in seizures and the treatment plan of medication and no
driving until she was seizure-free for six months (Tr. 381-83). He also indicated that
she should follow up with his office in six weeks (Tr. 383).
Shortly thereafter, in September 2020, Dr. Weiss submitted a Physical
Restrictions Evaluation in which he opined about Plaintiff’s restrictions for the period
beginning in June 2019 through the date of the evaluation (Tr. 394-96). Dr. Weiss
opined that Plaintiff could sit without interruption for 10 to 15 minutes and stand or
walk for five to 10 minutes so as not to aggravate her injuries (Tr. 394). He stated that,
on average over the course of an eight-hour day, Plaintiff could sit for three hours,
stand or walk for two hours, and lie down or recline for three hours (Tr. 394). Dr.
Weiss indicated that providing an option to change positions from sitting to standing
would not enable her to work eight hours per day on a sustained basis; she should lie
down, recline to rest, or elevate her legs above her heart during an eight-hour period
every one to two hours for 15 to 30 minutes; her impairments were likely to produce
good days and bad days; she would likely be absent from work each month three or
more times due to her impairments, doctor’s appointments, and other treatment; and
she could lift or carry five pounds for no more than one-third of an eight-hour workday
Although Dr. Weiss noted that Plaintiff did not require an assistive device for
standing or walking, he concluded that Plaintiff could only occasionally balance (one
to three hours) and could never climb, stoop, crouch, kneel, or crawl (Tr. 395). Dr.
Weiss also indicated that Plaintiff experienced no limitations as to her vision, hearing,
or speaking resulting from her impairments but that her impairments limited her ability
to reach above her head, engage in fine finger manipulation, feel with her hands, and
push or pull with her hands to only five percent each of an eight-hour day and
precluded her from repetitively using her hands or her feet to operate foot controls on
a sustained basis throughout an eight-hour workday (Tr. 395-96). He opined that
Plaintiff would be precluded from repetitively using her hands or feet on a sustained
basis during an eight-hour period (Tr. 395-966). Additionally, Dr. Weiss noted that
Plaintiff’s impairments would result in environmental restrictions regarding
unprotected heights, moving machinery, temperature extremes, and vibration (Tr.
396). Dr. Weiss stated that Plaintiff could not handle even low stress and that her
medications would interfere with her ability to drive an automobile and remain
mentally aware, for example, because the medications caused dizziness, drowsiness,
and tiredness (Tr. 396).
According to Dr. Weiss, Plaintiff’s objective medical
condition could be reasonably expected to produce the subjective symptoms of the
nature and severity alleged by Plaintiff, and Dr. Weiss did not believe that Plaintiff
showed any evidence of malingering or symptom exaggeration (Tr. 396). In support
of his conclusions, Dr. Weiss pointed primarily to Plaintiff’s low back pain with
moderate herniation at L-4-5 and stenosis with radicular symptoms; lower thoracic
spine pain; neck pain with small herniation at C-5-6; and partial complex seizure
disorder with weekly spells with aura, loss of consciousness, and postictal contusion
as the basis for such limitations (Tr. 394-96). According to Dr. Weiss, he based his
opinion on his review of the records from ARNP Anabel Perez Pereda and Dr. Lippold
and on his examination of Plaintiff and his relationship as a treating physician (Tr.
In the decision, the ALJ considered Dr. Weiss’s Physical Restrictions
Evaluation at length (Tr. 27-28). In doing so, the ALJ found Dr. Weiss’s opinion not
persuasive, highlighting the lack of consistency and supportability of Dr. Weiss’s
opinion with his own treatment notes and the other evidence of record, which
complies with the requirements of the new regulations. See 20 C.F.R. § 404.1520c(a),
(b)(2), & (c). As the ALJ discussed, Dr. Weiss’s opinion was inconsistent with the
other medical evidence of record. For example, the ALJ noted that Plaintiff treated
with ARNP Pereda in May and June 2019, after not seeking medical treatment since
July 2018 (Tr. 22, 282-314). Plaintiff presented during that time with almost entirely
normal findings, including denying dizziness, headaches, or pain radiating down to
her lower extremities (Tr. 282-91). The ALJ pointed to the fact that Plaintiff did not
return for treatment until February 2020, which, as the ALJ indicated, was not
consistent with someone alleging disabling impairments to the point where she could
not even hold up a coffee cup, as she asserted during the administrative hearing (Tr.
The ALJ also highlighted the discrepancies between Dr. Weiss’s treatment
notes in February 2020 and ARNP Pereda’s contemporaneous treatment notes, which
in fact were generated on the same day (Tr. 27, 327-29, 372-77). Mainly, while
Plaintiff reported several musculoskeletal, neurological, and psychiatric issues to Dr.
Weiss in February 2020, she reported no musculoskeletal symptoms; no headaches,
dizziness, or other neurological symptoms; and no depression, anxiety, emotional
problems or concerns, or other psychiatric symptoms to ARNP Pereda on the same
day (Tr. 22-27, 327-29, 372-77). Upon examination, ARNP Pereda found Plaintiff
healthy-appearing, well-nourished, well-developed, and oriented to time, place, and
person with a normal mood and affect (Tr. 329). The fact that one appointment
pertained to neurology and the other pertained to gynecology is of no moment.
Plaintiff reported completely different symptoms to two treating sources on the same
Notably, in evaluating a claimant’s symptoms, the ALJ considers both
inconsistencies in the evidence and the extent to which any conflicts exist between the
claimant’s statements and the rest of the evidence, including the claimant’s history,
signs and laboratory findings, and statements by medical sources or other persons
about how the symptoms affect the claimant. 20 C.F.R. § 404.1529(c)(4). The ALJ
therefore properly considered the inconsistencies in the record and the fact that Dr.
Weiss’s treatment notes conflicted with the other evidence of record.
Moreover, the ALJ correctly determined that Dr. Weiss’s own treatment
records did not support such extreme limitations. As the ALJ indicated, Dr. Weiss
mainly based his opinion on Plaintiff’s subjective complaints regarding her symptoms,
especially because most of the appointments Plaintiff attended with Dr. Weiss
occurred via telehealth appointments due to the pandemic (Tr. 27). Most of his
treatment notes included a recitation of Plaintiff’s subjective complaints with few
abnormal findings upon examination. The ALJ also correctly stated that Dr. Weiss’s
physical findings at each visit were repetitive, including the telehealth visits, which
included physical examination findings that could only be found during an in-person
examination and that simply repeated from the previous in-person examinations (Tr.
27, 347-53, 366-67, 372, 375-76, 381-82, 387-88). 3 In addition, the ALJ properly
concluded that Dr. Weiss’s treatment plan was not designed to cure or lessen any
significant impairment but rather consisted of conservative treatment only prescribing
medications and recommending inversion exercises (Tr. 27).
Dr. Weiss never
suggested surgical interventions or any other treatment beyond medication
adjustments to treat Plaintiff’s impairments.
Further, Dr. Weiss repeatedly indicated that Plaintiff could not drive until her
loss-of-consciousness episodes were treated and until she remained free of such
episodes for six months, per Florida law (see Tr. 348, 354). At the administrative
hearing held on October 13, 2020, Plaintiff testified that she was able to get her driver’s
license back again, meaning she had been seizure-free for at least six months (Tr. 43).
The fact that she alleged a disability onset date of May 3, 2019, and then obtained her
driving privileges prior to the October 13, 2020 hearing, indicates that her seizures
became controlled within less than a year of her disability onset date and that her
conservative treatment regimen worked, despite Plaintiff’s subjective complaints to
Dr. Weiss. 4
The ALJ also appropriately found that the objective diagnostic testing did not
reveal any disabling impairments (Tr. 27, 355-62, 369-71). In support of her argument,
While I appreciate the challenges for individuals obtaining treatment during the pandemic,
the fact that Dr. Weiss set forth findings that he could only observe in person weighs against
finding his opinion persuasive.
Additionally, the fact that her seizures resolved within less than a year from her alleged
onset date precludes a finding of a period of disability.
Plaintiff points to her diagnoses set forth in the MRIs and an abnormal EEG.
“Diagnosis of a listed impairment is not alone sufficient; the record must contain
corroborative medical evidence supported by clinical and laboratory findings.” Carnes
v. Sullivan, 936 F.2d 1215, 1218 (11th Cir. 1991) (citations omitted). “Disability is
determined by the effect an impairment has on the claimant’s ability to work, rather
than the diagnosis of an impairment itself.” Davis v. Barnhart, 153 F. App’x 569, 572
(11th Cir. 2005) (per curiam). Furthermore, the severity of a medically ascertained
impairment is not measured in terms of deviation from purely medical standards of
bodily perfection or normality but rather in terms of its effect upon ability to work.
McCruter v. Bowen, 791 F.2d 1544, 1547 (11th Cir. 1986). While diagnostic testing
confirmed that Plaintiff suffered from mild to moderate herniations and from seizures,
neither the diagnostic results nor the findings set forth in Dr. Weiss’s treatment notes
supported the severity of the limitations opined by Dr. Weiss stemming from those
impairments. Accordingly, the ALJ appropriately found that Dr. Weiss’s opinion was
unpersuasive because it both lacked consistency with the other evidence of record and
supportability in his own treatment notes.
Relatedly, Plaintiff takes issue with the ALJ’s consideration of the opinions of
state agency medical consultants (Tr. 29, 75-85, 87-99), arguing that the ALJ failed to
provide adequate rationale for finding the opinions of non-examining state agency
medical consultants more persuasive than Dr. Weiss’s opinion. 5 As Plaintiff argues,
The ALJ refers to only one state agency medical consultant, but the record indicates that
two state agency medical consultants offered opinions (Tr. 29, 75-85, 87-99).
the regulations state that a medical source may have a better understanding of a
claimant’s impairments if he or she examines the claimant than if the medical source
only reviews evidence in the claimant’s folder. 20 C.F.R. § 404.1520c(c)(3)(v). In
finding the opinions of the state agency medical consultants moderately persuasive,
the ALJ found that the opinions were not entirely consistent with or supported by the
evidence because, though the state agency medical consultants concluded that Plaintiff
experienced limitations, the evidence received at the hearing level showed that Plaintiff
was more limited exertionally and non-exertionally than determined by the state
agency medical consultants (Tr. 29). Given that, the RFC included greater restrictions
than those set forth by the state agency medical consultants. As the regulations do not
require any specific evidentiary weight to be afforded to a particular medical opinion,
the ALJ did not need to provide any further rationale for finding the opinion of the
state agency medical consultant more persuasive than Dr. Weiss.
Lastly, Plaintiff argues that the ALJ failed to consider the purpose and extent of
the treating relationship between Plaintiff and Dr. Weiss or to consider the fact that
Dr. Weiss specialized as a neurologist. As noted above, the new regulations do not
require the ALJ to explain how he or she considered the other factors outlined in 20
C.F.R. § 404.1520c(c) beyond supportability and consistency.
20 C.F.R. §
404.1520c(b)(2). Included among those factors are the specialization of the medical
source and the treating relationship the medical source had with the claimant,
including the length of the treating relationship, the frequency of the examinations, the
purpose of the treatment relationship, the extent of the treatment relationship, and the
examining relationship. 20 C.F.R. § 404.1520c(c)(3)-(4). Despite the regulation
explicitly stating that the ALJ may, but is not required to, explain how he or she
considered those factors, Plaintiff argues that the ALJ should have nonetheless
articulated his findings as to those factors. Such argument lacks merit given the
explicit permissive directive set forth in 20 C.F.R. § 404.1520c(b)(2), and, as a result,
the ALJ did not err in that regard.
For the foregoing reasons, the ALJ applied the correct legal standards, and the
ALJ’s decision is supported by substantial evidence. Accordingly, after consideration,
it is hereby
The decision of the Commissioner is affirmed.
The Clerk is directed to enter final judgment in favor of the
Commissioner and close the case.
DONE AND ORDERED in Tampa, Florida, on this 19th day of September,
Counsel of Record
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