Spencer v. Commissioner of Social Security

Filing 35

OPINION AND ORDER reversing the Commissioner's final decision and remanding the matter with instructions; Clerk to enter judgment accordingly and close the file. Signed by Magistrate Judge James Klindt on 1/18/2023. (KAW)

Case 6:22-cv-00019-JRK Document 35 Filed 01/18/23 Page 1 of 14 PageID 923

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
KELLY JO SPENCER,
Plaintiff,
v.

Case No. 6:22-cv-19-JRK

KILOLO KIJAKAZI,
Acting Commissioner of Social
Security,
Defendant.
OPINION AND ORDER 1
I.

Status

Kelly Jo Spencer (“Plaintiff”) is appealing the Commissioner of the Social
Security Administration’s (“SSA(’s)”) final decision denying her claim for
disability insurance benefits (“DIB”). Plaintiff’s alleged inability to work is the
result of a lumbar disc fusion at L4-L5, loss of concentration and memory,
anxiety, right shoulder and arm injuries, a right knee injury, arthritis, a neck
injury, high blood pressure, and menopause. Transcript of Administrative
Proceedings (Doc. No. 17; “Tr.” or “administrative transcript”), filed April 4,
2022, at 58, 76, 238. Plaintiff protectively filed an application for DIB on May
1

The parties consented to the exercise of jurisdiction by a United States
Magistrate Judge. See Notice, Consent, and Reference of a Civil Action to a Magistrate Judge
(Doc. No. 16), filed April 4, 2022; Reference Order (Doc. No. 23), signed May 13, 2022 and
entered May 16, 2022.

Case 6:22-cv-00019-JRK Document 35 Filed 01/18/23 Page 2 of 14 PageID 924

2

1, 2019, alleging a disability onset date of November 22, 2016. Tr. at 194-97;
see also Tr. at 210-12. The application was denied initially, Tr. at 57-70, 71, 72,
74, 95-97, 99-101, and upon reconsideration, Tr. at 75-85, 86, 87, 89, 103-12,
114-22.
On March 9, 2021, an Administrative Law Judge (“ALJ”) held a hearing,3
during which he heard testimony from Plaintiff, who was represented by
counsel, and a vocational expert (“VE”). See Tr. at 32-56 (hearing transcript);
see also Tr. at 186-88 (appointment of representative forms). On April 12, 2021,
the ALJ issued a Decision finding Plaintiff not disabled through December 31,
2020, the date Plaintiff was last insured for DIB (the “DLI”). See Tr. at 11-20.
Thereafter, Plaintiff sought review of the Decision by the Appeals Council
and submitted a brief in support of the request. See Tr. at 5-6 (Appeals Council
exhibit list and order), 191-93 (request for review), 312-29 (brief). On November
1, 2021, the Appeals Council denied Plaintiff’s request for review, Tr. at 1-3,
thereby making the ALJ’s Decision the final decision of the Commissioner. On
January 5, 2022, Plaintiff commenced this action under 42 U.S.C. § 405(g) by

2

Although actually completed on May 3, 2019, see Tr. at 194, the protective filing
date for the DIB application is listed elsewhere in the administrative transcript as May 1,
2019, see, e.g., Tr. at 57, 76.
3

The hearing was held via telephone with Plaintiff’s consent because of
extraordinary circumstances presented by the COVID-19 pandemic. Tr. at 34-35, 165-75, 185.
-2-

Case 6:22-cv-00019-JRK Document 35 Filed 01/18/23 Page 3 of 14 PageID 925

timely filing a Complaint (Doc. No. 1), seeking judicial review of the
Commissioner’s final decision.
On

appeal,

Plaintiff

argues:

1)

“[t]he

ALJ

omitted

and/or

mischaracterized portions of both the medical and non-medical evidence,
leading to an inaccurate and incomplete analysis of Plaintiff’s claim”; 2) “[t]he
ALJ erroneously and without justification or cause, disregarded Plaintiff’s
credibility”; 3) “the ALJ failed to consider the combined effect of Plaintiff’s
impairments”; and 4) “the ALJ failed to properly evaluate and determine
Plaintiff’s residual functional capacity” (“RFC”). Plaintiff’s Memorandum of
Law in Support of Claims (Doc. No. 30; “Pl.’s Mem.”), filed July 19, 2022, at 2,
9, 14, 18 (emphasis and some capitalization omitted). On October 13, 2022,
Defendant filed a Memorandum in Support of the Commissioner’s Decision
(Doc. No. 34; “Defendant’s Memorandum” or “Def.’s Mem.”) responding to
Plaintiff’s arguments. 4
After a thorough review of the entire record and consideration of the
parties’ respective arguments, the undersigned finds that the Commissioner’s
final decision is due to be reversed and remanded for reconsideration of the
medical evidence, particularly the evidence on Plaintiff’s back and neck

4

In the governing Scheduling Order (Doc. No. 22), entered April 25, 2022,
Plaintiff was given the optional opportunity to file a reply brief within two weeks of the filing
of Defendant’s Memorandum. Plaintiff has not done so; the matter is ripe for disposition.
-3-

Case 6:22-cv-00019-JRK Document 35 Filed 01/18/23 Page 4 of 14 PageID 926

impairments and pain. On remand, an evaluation of this evidence will likely
impact the Administration’s consideration of the other matters Plaintiff raises
as issues. For this reason, the Court need not address Plaintiff’s arguments in
this regard. See Jackson v. Bowen, 801 F.2d 1291, 1294 n.2 (11th Cir. 1986) (per
curiam) (declining to address certain issues because they were likely to be
reconsidered on remand); 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).
II.

The ALJ’s Decision

When determining whether an individual is disabled, 5 an ALJ must
follow the five-step sequential inquiry set forth in the Code of Federal
Regulations (“Regulations”), determining as appropriate whether the claimant
(1) is currently employed or engaging in substantial gainful activity; (2) has a
severe impairment; (3) has an impairment or combination of impairments that
meets or medically equals one listed in the Regulations; (4) can perform past
relevant work; and (5) retains the ability to perform any work in the national

5

“Disability” is defined in the Social Security Act as the “inability to engage in
any substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be expected
to last for a continuous period of not less than 12 months.” 42 U.S.C. §§ 423(d)(1)(A),
1382c(a)(3)(A).
-4-

Case 6:22-cv-00019-JRK Document 35 Filed 01/18/23 Page 5 of 14 PageID 927

economy. 20 C.F.R. § 404.1520; see also Simon v. Comm’r, Soc. Sec. Admin., 7
F.4th 1094, 1101-02 (11th Cir. 2021) (citations omitted); Phillips v. Barnhart,
357 F.3d 1232, 1237 (11th Cir. 2004). The claimant bears the burden of
persuasion through step four, and at step five, the burden shifts to the
Commissioner. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987).
Here, the ALJ followed the five-step inquiry. See Tr. at 14-19. At step one,
the ALJ determined Plaintiff “did not engage in substantial gainful activity
during the period from her alleged onset date of December 31, 2018 through her
[DLI] of December 31, 2020.” Tr. at 14 (emphasis and citation omitted). At step
two, the ALJ found that “[t]hrough the [DLI, Plaintiff] had the following severe
impairments: a back disorder status post lumbar spine fusion, degenerative disc
disease of the cervical spine, headaches, vasomotor symptoms secondary to
menopause and an anxiety disorder.” Tr. at 14 (emphasis and citation omitted).
At step three, the ALJ ascertained that “[t]hrough the [DLI, 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. at 14 (emphasis and citation omitted).
The ALJ determined that through the DLI, Plaintiff had the following
RFC:
[Plaintiff could] perform light work as defined in 20
[C.F.R. §] 404.1567(b) except [Plaintiff] can lift, carry,
push and/or pull twenty (20) pounds occasionally and
-5-

Case 6:22-cv-00019-JRK Document 35 Filed 01/18/23 Page 6 of 14 PageID 928

ten (10) pounds frequently. She can stand and walk for
approximately six (6) hours and can sit for
approximately six (6) hours in an 8-hour workday with
normal breaks. She could occasionally climb stairs,
stoop, kneel, crouch and crawl, but should never climb
ladders, or scaffolds. Handling and reaching overhead
is limited to no more than frequently. She must avoid
exposure to vibration, unprotected heights and
hazardous machinery. This individual can handle
exposure to a noise level intensity no[t] above the
“moderate” level as defined in the Selected
Characteristics of Occupations (SCO). “Moderate” is
defined in the SCO as the noise intensity level in an
business office where typing is done, department store,
grocery store, light traffic and fast food restaurant at
off-hours. She could perform tasks that are simple and
that can be learned in 30 days or less.
Tr. at 15 (emphasis omitted). At step four, the ALJ relied on the testimony of
the VE and found that “[t]hrough the [DLI, Plaintiff] was unable to perform any
past relevant work” as an “Accountant” and a “Controller.” Tr. at 18 (emphasis
and citation omitted). At the fifth and final step of the sequential inquiry, after
considering Plaintiff’s age (“53 years old . . . on the [DLI]”), education (“at least
a high school education”), work experience, and RFC, the ALJ again relied on
the VE’s testimony and found through the DLI that “there were jobs that existed
in significant numbers in the national economy that [Plaintiff] could have
performed,” Tr. at 18-19 (emphasis and citation omitted), such as “Mail sorter,”
“Office helper,” and “Information clerk,” Tr. at 19. The ALJ concluded Plaintiff
“was not under a disability . . . at any time from December 31, 2018, the alleged

-6-

Case 6:22-cv-00019-JRK Document 35 Filed 01/18/23 Page 7 of 14 PageID 929

onset date, through December 31, 2020, the [DLI].” Tr. at 20 (emphasis and
citation omitted).
III.

Standard of Review

This Court reviews the Commissioner’s final decision as to disability
pursuant to 42 U.S.C. § 405(g). Although no deference is given to the ALJ’s
conclusions of law, findings of fact “are conclusive if . . . supported by
‘substantial evidence.’” Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001)
(citing Falge v. Apfel, 150 F.3d 1320, 1322 (11th Cir. 1998)). “Substantial
evidence is something ‘more than a mere scintilla, but less than a
preponderance.’” Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005)
(quoting Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987)). The substantial
evidence standard is met when there is “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Falge, 150 F.3d at 1322
(quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)); see also Biestek v.
Berryhill, 139 S.Ct. 1148, 1154 (2019); Samuels v. Acting Comm’r of Soc. Sec.,
959 F.3d 1042, 1045 (11th Cir. 2020) (citation omitted). It is not for this Court
to reweigh the evidence; rather, the entire record is reviewed to determine
whether “the decision reached is reasonable and supported by substantial
evidence.” Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991) (citation
omitted). The decision reached by the Commissioner must be affirmed if it is
supported by substantial evidence—even if the evidence preponderates against
-7-

Case 6:22-cv-00019-JRK Document 35 Filed 01/18/23 Page 8 of 14 PageID 930

the Commissioner’s findings. Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155,
1158-59 (11th Cir. 2004) (per curiam).
IV.

Discussion

Plaintiff argues the ALJ “omitted and/or mischaracterized portions of
both the medical and non-medical evidence,” which, according to Plaintiff, “le[d]
to an inaccurate and incomplete analysis of Plaintiff’s claim.” Pl.’s Mem. at 2;
see id. at 2-9. Embedded in Plaintiff’s argument is a claim that “the ALJ failed
to entirely consider the records and opinions of not only one treating physician,
but several specialists that treated Plaintiff over a period of years, and/or failed
to properly document the reasons for failing to do so.” Id. at 5. Plaintiff also
contends the ALJ “failed to acknowledge or evaluate Plaintiff’s medication
regimen, despite the record detailing the significance of such a regimen and the
sheer amount of medication that Plaintiff was prescribed to medically manage
her conditions.” Id. at 7.
Responding, Defendant argues that “Plaintiff only generally cites to large
swaths of treatment records that she alleges contain medical opinions, but she
does not identify specifically where the opinions are located or explain what
they say.” Def.’s Mem. at 6 (citation omitted). Defendant also argues Plaintiff
has not shown that any error in failing to evaluate medical opinions was
“harmful,” i.e., that “it conflicted with the ALJ’s finding of her RFC.” Id.

-8-

Case 6:22-cv-00019-JRK Document 35 Filed 01/18/23 Page 9 of 14 PageID 931

The SSA revised the rules regarding the evaluation of medical evidence
for claims filed on or after March 27, 2017. See Revisions to Rules Regarding
the Evaluation of Medical Evidence, 82 Fed. Reg. 5844, 5844 (January 18,
2017); see also 82 Fed. Reg. 15,132 (March 27, 2017) (amending and correcting
the final Rules published at 82 Fed. Reg. 5,844). Under the new rules and
Regulations, “A medical opinion is a statement from a medical source about
what [the claimant] can still do despite [his or her] impairment(s) and whether
[the claimant] ha[s] one or more impairment-related limitations or restrictions
in the following abilities:” 1) the “ability to perform physical demands of work
activities”; 2) the “ability to perform mental demands of work activities”; 3) the
“ability to perform other demands of work, such as seeing, hearing, or using
other senses”; and 4) the “ability to adapt to environmental conditions.” 20
C.F.R. § 404.1513(a)(2); see also 20 C.F.R. § 404.1502 (defining “[a]cceptable
medical sources”). An ALJ need not “defer or give any specific evidentiary
weight, including controlling weight, to any medical opinion(s) . . . , including
those from [the claimant’s] medical sources.” 20 C.F.R. § 404.1520c(a).

6

“[S]ection 404.1520c falls within the scope of the Commissioner’s authority and
was not arbitrary and capricious.” Harner v. Soc. Sec. Admin., Comm’r, 38 F.4th
892, 896 (11th Cir. 2022).

6

Plaintiff filed her DIB application after the effective date of section 404.1520c,
so the undersigned applies the revised rules and Regulations.
-9-

Case 6:22-cv-00019-JRK Document 35 Filed 01/18/23 Page 10 of 14 PageID 932

The following factors are relevant in an ALJ’s consideration of a medical
opinion: (1) “[s]upportability”; (2) “[c]onsistency”; (3) “[r]elationship with the
claimant”; (4) “[s]pecialization”; and (5) other factors, such as “evidence showing
a medical source has familiarity with the other evidence in the claim or an
understanding of [the SSA’s] disability program’s policies and evidentiary
requirements.” 20 C.F.R. § 404.1520c(c). Supportability and consistency are the
most important factors, and the ALJ must explain how these factors were
considered. 20 C.F.R. § 404.1520c(b)(2). Generally, the ALJ is not required to
explain how he or she evaluated the remaining factors. 20 C.F.R.
§ 404.1520c(b)(2). However, if the ALJ “find[s] that two or more medical
opinions . . . about the same issue are both equally well-supported . . . and
consistent with the record . . . but are not exactly the same, [the ALJ must]
articulate how [he or she] considered the other most persuasive factors . . . .” 20
C.F.R. § 404.1520c(b)(3). 7
Here, the ALJ in evaluating the opinion evidence of record did not refer
to or discuss any medical opinions from treating sources. See Tr. at 18. Rather,
the ALJ solely evaluated opinions from non-examining physicians who

7

When a medical source provides multiple opinions, the ALJ is also not required
to articulate how he or she evaluated each medical opinion individually. 20 C.F.R.
§§ 404.1520c(b)(1), 416.920c(b)(1). Instead, the ALJ must “articulate how [he or she]
considered the medical opinions . . . from that medical source together in a single analysis
using the factors listed [above], as appropriate.” 20 C.F.R. § 404.1520c(b)(1).
- 10 -

Case 6:22-cv-00019-JRK Document 35 Filed 01/18/23 Page 11 of 14 PageID 933

reviewed the file at the initial and reconsideration levels of the administrative
process. Tr. at 18 (referring to opinions of “Initial consultant Jolita Burns MD”
and “Reconsideration consultant Phillip Matar MD,” located in the
administrative transcript at pages 65-69 and 80-85, respectively).
Without deciding whether the treating physician evidence contains
opinions that qualify as “medical opinions” under the revised Regulations, the
undersigned finds that ALJ’s failure to meaningfully address the evidence
frustrates judicial review such that remand is necessary.
For instance, in evidently rejecting Plaintiff’s characterization of her back
pain, the ALJ relied on one December 29, 2017 note in which Plaintiff was
quoted saying, “I don’t have any pain right now.” Tr. at 16 (quoting Tr. at 455).
Further, in addressing Plaintiff’s alleged neck pain, the ALJ relied only on
findings from an unspecified MRI. Tr. at 17.
With respect to both the back and neck pain allegations, the Decision does
not contain any discussion of or citation to post-surgical evidence and notes of
A. Zaman M.D. (Exhibit 4F) that often document neck and back
pain/tenderness/stiffness despite an operation that was deemed successful. Tr.
at 363-432. With respect to the back pain, a note dated December 19, 2017—
just ten days before the evidence upon which the ALJ relies to reject Plaintiff’s
assertions—documents, “She continues with achy sensation in her lumbar area
but with more pain in her cervical spine[.] [S]he has been waiting for her[]
- 11 -

Case 6:22-cv-00019-JRK Document 35 Filed 01/18/23 Page 12 of 14 PageID 934

surgeon to evaluate her and give her an idea about when she could get her
surgery on her C-spine.” Tr. at 373. Later, on January 4, 2018, it was
documented that Plaintiff had “same complaints of back pain” and “notice[d] it
to get better at some time and then get[] bad especially with the cold season and
the rain.” Tr. at 378. Still later, June 4, 2018, Dr. Zaman noted Plaintiff
“continue[d] to have pain in . . .both hips [and] she has had pain in her back in
her lumbar area and her cervical spine for the longest time”; Plaintiff “has done
much better [since her surgery] but she still has problems with her neck”; and
Plaintiff needed to follow up with the surgeon regarding the “C-spine
radiculitis.” Tr. at 385.
Nor did the ALJ cite to or discuss in the Decision the treatment records
of Jason Tse, D.O., dated 2019-2020, see Tr. at 16-18, that document pain and
associated symptoms, medications taken to relieve the pain, and their potential
side effects, see Tr. at 498-551.
The ALJ did discuss the eventual October 30, 2020 neurosurgical
consultation Plaintiff received from Hermes Garcia, M.D, although not
referring to Dr. Garcia by name. 8 See Tr. at 17; see Tr. at 686-92 (Dr. Garcia’s
consult notes). Again, though, this evidence was only discussed in the context
of bolstering the ALJ’s finding that Plaintiff’s back and neck pain allegations

8

The ALJ referred to “a neurosurgical consultation on October 30, 2020” and
cited Exhibit 15F, Tr. at 17, which contains Dr. Garcia’s consult notes, Tr. at 686-92.
- 12 -

Case 6:22-cv-00019-JRK Document 35 Filed 01/18/23 Page 13 of 14 PageID 935

are contradicted by Plaintiff’s one December 2017 statement that she was not
experiencing any pain. See Tr. at 17. Further, in using the October 2020
neurosurgical consultation to contradict Plaintiff’s prior statement, the ALJ
mischaracterized the evidence. According to the ALJ, Plaintiff “reported that
she experienced no improvement with her back pain and associated right lower
extremity following her 2017 lumbar fusion surgery,” Tr. at 17, but in reality,
the note documents, “Her right lower extremity pain did improve[,] however she
persisted with low back pain requiring physical therapy.” Tr. at 686 (emphasis
added). The note goes on to state, “Of the lately she has had worsening back
pain with associated stiffness and now pain is going down the left leg.” Tr. at
686.
After this consultation, Plaintiff continued to receive interventions in the
form of injections and medications. Tr. at 716-727. The ALJ’s only reference to
this evidence in the Decision was a statement that the evidence was considered
and a general finding that it “tend[s] to repeat the same conclusions found in
other evidence.” Tr. at 17.
In sum, the undersigned’s review of the ALJ’s Decision is frustrated given
the lack of meaningful discussion or evaluation of the medical evidence
summarized above. The matter is due to be remanded for the ALJ to reconsider
the evidence and address it in such a way that the Court can be satisfied it was
adequately considered.
- 13 -

Case 6:22-cv-00019-JRK Document 35 Filed 01/18/23 Page 14 of 14 PageID 936

V.

Conclusion

In light of the foregoing, it is
ORDERED:
1.

The Clerk of Court is directed to enter judgment pursuant to

sentence four of 42 U.S.C. § 405(g), REVERSING the Commissioner’s final
decision and REMANDING this matter with the following instructions:
(A)

Ensure adequate consideration of and discussion of the medical

evidence, particularly as it relates to Plaintiff’s allegations of back and
neck impairments and pain;
(B)

If appropriate, address the other issues raised by Plaintiff in this

appeal; and
(C)

Take such other action as may be necessary to resolve this claim

properly.
2.

The Clerk is further directed to close the file.

DONE AND ORDERED in Jacksonville, Florida on January 18, 2023.

kaw
Copies to:
Counsel of Record

- 14 -