Valadez v. Social Security

Filing 23

ORDER and OPINION reversing and remanding the Commissioner's decision for further administrative proceedings. The Clerk of Court is directed to enter judgment for Plaintiff and close the case. Signed by Magistrate Judge Mark A. Pizzo on 1/18/2023. (DK)

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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
LUIS A. VALADEZ,
Plaintiff,
v.

Case No. 6:22-cv-149-MAP

COMMISSIONER OF SOCIAL SECURITY
Defendant.
/
ORDER
Plaintiff seeks judicial review of the denial of his claims for a period of disability
and disability insurance benefits (DIB). Plaintiff argues that the Administrative Law
Judge (ALJ) committed reversible error by failing to properly consider the medical
opinions when articulating his RFC, and by failing to properly evaluate his subjective
complaints.

As the ALJ’s decision was not based on substantial evidence, the

Commissioner’s decision is remanded.
I.

Background

Plaintiff, who was born in 1981, claimed disability beginning April 14, 2015 (Tr.
380). He was 34 years old on the alleged onset date (Tr. 171). Plaintiff earned a
medical assistant associate degree (Tr. 94). He has no past relevant work but held jobs
as a medical assistant; a restaurant manager; a bank teller; and a bookkeeper/ head
bookkeeper (Tr. 49-55). Plaintiff reports a history of developmental delays (he did not
speak until age 6) and difficulty with social understanding (Tr. 604). In 2012, Plaintiff

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was involved in a motor vehicle accident that resulted in a traumatic brain injury. At
the site, CPR was required to bring Plaintiff back to life (Tr. 629). Since then, Plaintiff
developed mood swings, memory loss, heightened sense of perception, fatigue,
proprioception impairment, headaches, and depression (Tr. 628-29). Plaintiff alleged
disability due to a herniated disc, headaches, anxiety, bipolar disorder, panic attacks,
and post-traumatic stress disorder (Tr. 172).
At the time of his administrative hearing, November 10, 2020 (several years
after Plaintiff’s DLI), Plaintiff admitted that his seizures had stabilized and were
generally controlled with treatment (Tr. 56). However, he testified that he cannot work
because he cannot multi-task, gets overwhelmed easily, and bites himself and pulls out
his hair during stressful situations (Tr. 56). Plaintiff testified that he cannot be left
alone to manage independently and that if left alone he would freeze, be in tears, close
his ears, and rock back and forth (Tr. 56). At the time of the administrative hearing,
Plaintiff lived in a rental home with his husband and his sister (Tr. 48).
Given his alleged disability, Plaintiff filed an application for a period of
disability and DIB (Tr. 380-381). The Social Security Administration (SSA) denied
Plaintiff’s claims both initially and upon reconsideration (Tr. 171-188, 190-208).
Plaintiff then requested an administrative hearing (Tr. 250-251).

Per Plaintiff’s

request, the ALJ held a hearing on January 17, 2019, at which Plaintiff appeared and
testified (Tr. 90-131). Following the hearing, the ALJ issued an unfavorable decision
on April 30, 2019, finding Plaintiff not disabled and accordingly denied Plaintiff’s
claims for benefits (Tr. 210-224). Upon request, the Appeals Council reviewed the
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ALJ’s decision and issued an Order remanding the case to the ALJ. In particular, the
Appeals Council explained:
The residual functional capacity (RFC) assessment (Finding 5) is not
supported by substantial evidence. The decision finds the claimant has
moderate limitations in the four broad functional areas (20 CFR
404.1520a(c)(3)) of understanding, remembering, or applying information;
interacting with others; concentrating, persisting, or maintaining pace; and
adapting or managing oneself (Decision, pages 4-5). These findings are
consistent with the assessments provided by the State agency psychological
consultants (Exhibit B4A, pages 8-9; Exhibit 6A, pages 10-11) and the decision
assigned the State agency opinions the "greatest weight" (Decision, page 8).
Consistent with those opinions, the RFC limits the claimant to "short, simple
work instructions" and "occasional interactions with coworkers and the
public." However, the State agency psychological consultants also concluded,
"Timed work or work requiring quotas would not be suitable for him" (Exhibit
B4A, page 14; Exhibit B6A, page 16). This is directly relevant to the claimant's
ability to concentrate, persist, or maintain pace, yet the decision is silent
regarding these restrictions, despite finding the claimant has moderate
limitations in this functional area. Accordingly, further consideration of the
RFC is warranted (20 CFR 404.1545 and Social Security Rulings 96-8p and
85-16).
(Tr. 231). The Appeals Council further instructed that, upon remand, the
Administrative Law Judge will:
Give further consideration to the claimant's maximum residual functional
capacity and provide appropriate rationale with specific references to evidence
of record in support of the assessed limitations (20 CFR 404.1545 and Social
Security Ruling 85-16 and 96-8p).
(Tr. 231).
Thereafter, Plaintiff appeared before the ALJ for a hearing on November 10,
2020 (Tr. 38-89). The ALJ issued a decision on January 26, 2021 (Tr. 16-26). In
rendering the administrative decision, the ALJ concluded that Plaintiff met the insured
status requirements through March 31, 2017, and had not engaged in substantial
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gainful activity during the period from his alleged onset date of April 14, 2015, through
his date last insured, March 31, 2017 (Tr. 18). After conducting a hearing and
reviewing the evidence of record, the ALJ determined that Plaintiff had the following
severe impairments through the date last insured: degenerative disc disease of the
cervical spine, seizures, major depressive disorder with psychosis, Asperger’s disorder,
mood disorder, and personality disorder (Tr. 18). 1 Notwithstanding the noted severe
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. 18). The ALJ then
concluded that Plaintiff retained a residual functional capacity (RFC) to perform light
work as defined in 20 C.F.R. 404.1567(b) with the following limitations:
… he is limited to frequently balance, stoop, kneel, crouch, crawl, and
climbing of ramps and stairs, but never climb ladders or scaffolds. He is further
limited to no more than occasional exposure to unprotected heights and
dangerous equipment. In addition, the claimant is limited to understanding,
remembering, and carrying out simple and routine tasks, with few, if any,
workplace changes, and with no more than occasional interaction with the
public, coworkers, and supervisors.
(Tr. 20). In formulating Plaintiff’s RFC, the ALJ considered all symptoms and the
extent to which these symptoms can reasonably be accepted as consistent with the

1

Asperger’s is a previously used diagnosis on the autism spectrum. In 2013, it became
part of one umbrella diagnosis of autism spectrum disorder (ASD) in the Diagnostic
and Statistical Manual of Mental Disorders 5 (DSM-5), a manual used by clinicians
and researchers to diagnose and classify mental disorders published by the American
Psychiatric Association. See psychiatry.org-DSM (2013).
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objective medical evidence and other evidence, based on the requirements of 20 C.F.R.
404.1529 and SSR 16-3p (Tr. 20).
The ALJ opined that transferability of job skills was not an issue because
Plaintiff does not have any past relevant work. Given Plaintiff’s background, and the
RFC, the vocational expert (VE) testified that Plaintiff could perform other jobs
existing in significant numbers in the national economy, such as the jobs of Office
Helper (DOT 239.567-010), Packer (DOT 920.687-018), and Cleaner (DOT 323.687014) (Tr. 27-28). Accordingly, based on Plaintiff’s age, education, work experience,
RFC, and the testimony of the VE, the ALJ found Plaintiff not disabled (Tr. 29).
Given the ALJ’s finding, Plaintiff requested review from the Appeals Council, which
the Appeals Council denied (Tr. 1-6). 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), 1383(c)(3).
II.

Standard of Review

To be entitled to benefits, a claimant must be disabled, meaning he or she 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), 1382c(a)(3)(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), 1382c(a)(3)(D).

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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), 1383(c)(3). “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
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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 Commissioner, even if it finds
that the evidence preponderates against the Commissioner’s decision. Mitchell v.
Comm’r of Soc. Sec., 771 F.3d 780, 782 (11th Cir. 2014); Winschel, 631 F.3d at 1178
(citations omitted); Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). 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).
III.

Discussion

Plaintiff argues that the ALJ erred by failing to properly consider certain medical

opinions when articulating his RFC, and by failing to properly evaluate his subjective
complaints. For the reasons set forth below, remand is required.
A.

ALJ’s RFC assessment

A claimant’s RFC is the most work he can do despite any limitations caused by
his impairments. 20 C.F.R. § 404.1545(a)(1). In formulating a claimant’s RFC, the
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ALJ must consider all impairments and the extent to which the impairments are
consistent with medical evidence. 20 C.F.R. § 404.1545(a)(2). This includes both
severe and non-severe impairments when determining if the claimant can “meet the
physical, mental, sensory, and other requirements of work.”

20 C.F.R. §

404.1545(a)(4). Ultimately, under the statutory and regulatory scheme, a claimant’s
RFC is a formulation reserved for the ALJ, who must support her findings with
substantial evidence. See 20 C.F.R. § 404.1546(c).
In assessing whether a claimant can—despite any physical or mental
impairments—obtain and perform any work that exists in substantial numbers in the
national economy, the ALJ must give special attention to the opinions of a claimant’s
treating physician. Simon v. Comm’r of Soc. Sec., 7 F.4th 1094 (11th Cir. Aug. 12, 2021).
The SSA regulations applicable when Plaintiff filed his application required an ALJ to
give “controlling weight” to a treating physician’s opinions if they were “wellsupported by medically acceptable clinical and laboratory diagnostic techniques” and
“not inconsistent with other substantial evidence in [the] case record.” 2 Id. (quoting
20 C.F.R. § 404.1527(c)(2)). Eleventh Circuit case law applicable to Plaintiff’s claim
dictates that a treating physician’s opinion must be given substantial or considerable
weight unless good cause is shown to the contrary. Lewis v. Callahan, 125 F.3d 1436,

2

Although the Commissioner revised the rules regarding evaluating medical evidence
on January 18, 2017, the revisions became effective March 27, 2017, and they only
apply to applications filed on or after that date. See 20 C.F.R. 404.1520c. Because
Plaintiff filed his claim for benefits before March 27, 2017, the rules in § 404.1527
govern.
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1440 (11th Cir. 1997). 3 Good cause for disregarding such opinions “exists when the:
(1) treating physician’s opinion was not bolstered by the evidence; (2) evidence
supported a contrary finding; or (3) treating physician’s opinion was conclusory or
inconsistent with the doctor’s own medical records.” Phillips v. Barnhart, 357 F.3d
1232, 1241 (11th Cir. 2004) (citation omitted).
The administrative record here contains extensive treatment notes from
Plaintiff’s neurologist, Dr. Gary Weiss, who began treating Plaintiff for headache
complaints in February 2014, prior to the onset date, and treated him approximately
every three months through the DLI, March 31, 2017. Dr. Weiss diagnosed Plaintiff
with multiple types of headaches triggered by neck spasms, tension, stress headaches,
daily headaches originating in the right temporal and parietal region, and headaches
triggered by seizures, and throughout his lengthy treatment he described Plaintiff’s
headache symptoms such as nausea, photo and phono sensitivity, dizziness, and head
pain.
Dr. Weiss’s office visit note from September 18, 2014, indicates Plaintiff had
not had any recent seizures but had cluster headaches with blurred vision 4-5 times a
week (Tr. 599). On July 15, 2015, Plaintiff reported he experiences major headaches
after seizures as well as daily headaches with pain from 5-8/10 and severe headaches
3

Medical opinions are “statements from physicians and psychologists or other
acceptable medical sources that reflect judgments about the nature and severity of [the
claimant’s] impairment(s), including [the claimant’s] symptoms, diagnosis and
prognosis, what [the claimant] can still do despite impairment(s), and [the claimant’s]
physical or mental restrictions.” Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 117879 (11th Cir. 2011) (quoting 20 C.F.R. § 404.1527(a)(2)).
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1-2 times a week on right side of head with nausea, photo/ phono sensitivity, treats
headaches with Lorazepam and if that does not help then Fioricet and rest in a dark,
quiet room (Tr. 739). On August 17, 2015, Plaintiff reported that since his last visit he
had one severe headache originating on his right temporal lobe and with localized pain
he characterized as 8/10 with blurred vision and nausea since last visit (Tr. 735). He
took Lorazepam, then three hours later took Fioricet, then 3 hours later took another
Fioricet, then headache went away (Tr. 735). On October 21, 2015, Plaintiff described
daily headaches with dizziness, nausea, occasional vomiting, sensitivity to light and
sound, right side temporal, parietal, and occipital lobes that usually last 24 hours,
sometimes diminished after rest but never gone (Tr. 731). On December 14, 2015,
Plaintiff stated he usually only has headaches after seizures on the right side of his
upper head where his injury is and rated the pain as 6-7/10 (Tr. 727). However, on
January 27, 2016, Plaintiff reported having a headache for three weeks rated 6/10 (Tr.
723). On February 25, 2016, Plaintiff stated he had a headache for three to four weeks,
and that if takes Fioricet early enough, it can prevent a migraine (Tr. 715). On May
1, 2016, Plaintiff indicated he had a headache for two weeks associated with facial
numbness, nausea, vomiting, dizziness, blurred vision, occasional photo/ phono
sensitivity (Tr. 699). Dr. Weiss’s November 21, 2016, office visit note states that
Plaintiff ran out of his seizure medication and experienced headaches due to seizures
(Tr. 688). Plaintiff did not return to Dr. Weiss’s office until March 13, 2017 (Tr. 660).
On that date, he again reported an increase in seizures and headaches as a result of
difficulty filling his prescription medications (Tr. 660). Nurse practitioner Meyer
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noted that “He states as long as he stay [sic] on his medication he does not have
seizures” (Tr. 660). He also reported tension headaches due to anxiety as well as
dizziness with headaches and neck pain, visual disturbances, poor balance, poor
memory, and difficulty with word recall (Tr. 660).
Besides his regular treatment notes, Dr. Weiss stated his opinions in a Headache
Impairment Questionnaire dated July 15, 2017 (Tr. 751-752). In it, Dr. Weiss opined
that Plaintiff suffers from multiple types of headaches triggered by neck spasms,
tension, stress headaches, daily headaches originating in the right temporal and
parietal region, and headaches triggered by seizures.

Dr. Weiss characterized

Plaintiff’s headaches as moderate to severe in intensity and identified vertigo,
nausea/vomiting, photosensitivity, and visual disturbances as other symptoms
associated with the headaches (Tr. 751-752).

Dr. Weiss opined Plaintiff is

“permanently totally disabled due to a traumatic brain injury, seizure disorder, HNPs
C5-6 & C6-7, C4-5, Asberger’s on the spectrum” (Tr. 751). Dr. Weiss described
Plaintiff’s prognosis as “Pt is on the Autism spectrum and [symptoms] are exacerbated
since [motor vehicle accident] this contributes to his disability, chronic severe
headaches, memory and cognitive impairments, chronic neck pain.” (Tr. 751). Dr.
Weiss indicated Plaintiff’s symptoms were constantly severe enough to interfere with
attention and concentration; emotional factors related to autism spectrum contributed
to severity and functional limitations; and that Plaintiff is not capable of performing
even a low stress job (Tr. 754-755). Dr. Weiss opined that during a headache Plaintiff
would be precluded from performing even basic work activities and would need a
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break from the workplace; he estimated that Plaintiff would be absent more than three
times a month due to his headaches (Tr. 755).
Weighing Dr. Weiss’s opinions set forth on the Headache Impairment
Questionnaire, the ALJ stated:
As for Dr. Weiss’s Headache Impairment Questionnaire (Ex. B12F), the
undersigned gives some weight to his statement that he has been able to
completely relieve the [claimant’s] pain with medication without unacceptable
side effects (ExB12F/4), because this is consistent with his records, which
document the claimant’s statement that “he has been stable with his
medications” (B9F/2). Otherwise, the undersigned gives very little weight to
the other portions of this questionnaire because they are not supported by the
record. More specifically, with respect to the claimant’s headaches, they are
not consistent with statements in their own records, which indicate that the
claimant’s headaches have responded to medication.
(Tr. 25). In weighing Dr. Weiss’s opinions, the ALJ focused on the fact that just prior
to his DLI, on March 13, 2017, Plaintiff reported to Lana Meyer, Dr. Weiss’s nurse
practitioner, that “as long as he stay [sic] on his medication he does not have seizures”
(Tr. 660). The ALJ emphasized that Meyer and Dr. Weiss opined that Plaintiff had
“significant memory loss, but their notes show very limited observations on mental
status examinations” (Tr. 25). To the ALJ, Meyer and Dr. Weiss’s statements that
Plaintiff’s memory and other cortical functions were grossly intact, that his short-term
memory was not impacted, that his MMSE was normal for recall of three items, were
“inconsistent with their statements regarding significant memory loss” (Tr. 25-26).
Reviewing Dr. Weiss’s extensive treatment notes, however, I cannot find
substantial evidence to support the ALJ’s conclusions. The ALJ addressed the fact
that Plaintiff’s seizures and related headaches responded to medication, but neglected
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to address that Plaintiff suffers from daily or weekly cluster headaches with
accompanying nausea, visual and auditory disturbances, and head pain that are
unrelated to his seizure activity. These significant symptoms are not only noted by
Dr. Weiss, but also by providers at Circles of Care and Scott Kaplan, Psy. D. who
evaluated Plaintiff on May 31, 2016. See Circles of Care, Tr. 603-611; 628-29; Scott
Kaplan, Psy.D., Tr. 643. Plaintiff’s Supplemental Pain Questionnaires dated January
8, 2016, and February 15, 2017, likewise describe chronic headaches that hurt [his]
eyes and are very intense” (Tr. 413; 466). Plaintiff stated his daily headaches that can
last for up to two hours several times per day, and that “Fiorocet is effective in pain
relief in my head for a few hours. Too long and I will have seizure symptoms.” (Tr.
466).
Additionally, I find a lack of support for the ALJ’s evaluation of other medical
evidence. In assessing Plaintiff’s RFC, the ALJ cited to Plaintiff’s mental status exams
that “generally failed to reveal any persistent formal thought or psychotic disorder; his
treatment has been conservative in nature, consisting primarily of medication
management; and he has not sought regular outpatient mental health counseling, nor
has he required any hospitalization due to psychiatrically-based symptoms” …
consistent with the evaluation of Dr. Weiss (Tr. 24). The ALJ pointed to Dr. Weiss’s
mental status exam from May 2016 that “failed to reveal any thought or psychotic
disorder, or any signs of paranoia, delusional thinking, or mania; and although
intellectual functioning testing did reveal deficiencies in attention, concentration, and
memory, the claimant was found to have a normal full scale IQ, including average or
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above-average scores in verb al comprehension (116), perceptual reasoning (88), and
processing speed (102)” (Tr. 24). As a result, the ALJ opined that “[o]verall, the
claimant’s treating records, along with the neuropsychological evaluation, support the
conclusion that the claimant is capable of understanding, remembering and carrying
out simple and routine tasks, in an environment with only few workplace changes, and
no more than occasional interaction with co-workers, supervisors, and the public” (Tr.
24).
Although the medical evidence from Dr. Weiss and Nancy Thompson included
“normal” mental status exams, overall, this same evidence revealed a young adult with
Asperger’s disorder who sustained a traumatic brain injury and thereafter developed
an array of neurological and mental health symptoms. The ALJ did not address this
important portion of the evidence. As in Simon, this Court finds that the ALJ
mischaracterized Dr. Weiss’s medical records. See Simon, 7 F.4th at 1106 (“We
conclude that isolated entries in Dr. Turner’s treatment notes indicating that Simon
was at times stable on his meds, without more, cannot constitute or contribute to good
cause to reject Dr. Turner’s opinions.”). This error requires remand. The ALJ erred
by concluding that the record shows that Plaintiff’s seizures were well-controlled with
medication therapy and by failing to address that Plaintiff also suffered from an array
of neurological and mental health symptoms related to his traumatic brain injury.
Relatedly, as Plaintiff posits, the ALJ also erred in evaluating the opinions of
psychiatric nurse practitioner Joan Anderson who treated Plaintiff at Circles of Care
under the supervision of psychiatrist Jose Alvarez, M.D. (Tr. 603). While a nurse
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practitioner was not an “acceptable medical source” pursuant to the regulations
applicable to Plaintiff’s claim, the ALJ was still required to consider her opinions in
determining the severity of a claimant’s impairments and how it affects his ability to
do work. See 20 C.F.R. § 404.1527(f). In her Mental Impairment Questionnaire,
Thompson opined Plaintiff had “marked” limitations in his ability to (1) remember
locations and work-like procedures; (2) understand, remember and carry out detailed
instructions; (3) maintain attention and concentration for extended periods; (4)
perform activities within a schedule and consistently be punctual; (5) sustain ordinary
routine without supervision; (6) complete a workday without interruptions from
psychological symptoms; (7) perform at a consistent pace without rest periods of
unreasonable length or frequency; and (8) travel to unfamiliar places or use public
transportation (Tr. 673). Thompson also opined that Plaintiff had “moderate -tomarked” limitations in his ability to (1) understand, remember, and carry out simple,
one-to-two step instructions; (2) work in coordination with or near others without
being distracted by behavior; (5) respond appropriately to workplace changes; (6) be
aware of hazards and take appropriate precautions; (7) set realistic goals; and (8) make
plans independently (Tr. 673).
In considering these opinions, the ALJ stated:
Very little weight is also given to nurse Thompson’s Mental Impairment
Questionnaire (Ex.B10F), because under the Regulations, she is not an
“acceptable medical source” to give a diagnostic impression (See SSR 06-3p).
The undersigned is nevertheless required to give consideration to her opinion
regarding the claimant’s limitations. Her opinion is not given much weight.
Not only has the claimant never been hospitalized or given inpatient treatment
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for the conditions she enumerates, her assessed marked limitations are not
supported by or consistent with the record, including her own progress notes.
(Tr. 26). In considering Thompson’s opinions, the ALJ cited to “numerous mental
status examinations that showed Plaintiff’s memory was consistently found intact for
recent and remote events” (Tr. 26 citing ExB6F/6, 8, 9, 10, 11, 13, 15, 16 and 28;
B17F). The ALJ pointed to the last progress note prior to DLI wherein Thompson
indicated Plaintiff reported doing much better when he takes his psychotropic
medications as prescribed, and that since getting married was doing quite well (Tr. 26).
The ALJ discussed that during examination Plaintiff’s memory and intellect were
unchanged, including intact memory for recent and remote events and intact
concentration which was “highly inconsistent” with the “significant memory loss”
that Dr. Weiss and nurse practitioner Meyer reported (Tr. 26).
Although the ALJ correctly noted that numerous mental status exams revealed
that Plaintiff’s memory was intact and that Plaintiff reported doing much better at his
final appointment, in the main Thompson’s treatment records reveal that Plaintiff
displayed a mildly impaired memory for recent and remote events; made no eye
contact and looked at the floor or closed his eyes while he speaks; seemed to attempt
to decrease stimulation; and displayed autistic type symptomatology or Asperger’s
type symptoms (Tr. 604-05). At the outset of treatment in December 2014, Thompson
described Plaintiff’s chief complaint as mood swings with memory loss, heightened
sense of perception, fatigue, proprioception impairment, headaches, and depression,
and indicated he had no psychotic symptoms (Tr. 603-04). Plaintiff reported that he
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was experiencing “breakthrough anxiety and depression” with his current
medications; that in periods of distress has thrown things and yelled and feels that he
could become violent; and that he has difficulty tolerating other people (Tr. 604).
Thompson diagnosed Plaintiff with major depressive disorder, recurrent, moderate;
Asperger’s disorder; obsessive-compulsive personality disorder; psychosocial and
environmental problems (Tr. 604).
While follow up visits in January, February, and March 2015, revealed Plaintiff
was “doing a little better” as new medications decreased his mood swings, Plaintiff
still reported problems with executive functioning, fatigue, and mood problems before
seizures (Tr. 606, 608-09, 610). Unfortunately, Thompson’s subsequent records note
Plaintiff began experiencing psychosis and hallucinations. In particular, on May 6,
2015, Plaintiff described “rather bizarre” visual hallucinations (Tr. 614). Thompson
noted Plaintiff “had a mood swing and some self-destructive behaviors recently
associated with not getting Social Security disability” and reported “seeing Medusa
and her arm coming out of her head periodically” (Tr. 613). On May 13, 2015,
Plaintiff “still feeling quite depressed” (Tr. 618). Thompson noted: “He had an
experience were [sic] he thought he was burning this morning when he woke up. He
is hearing and seeing things. He is considering a hospital stay” (Tr. 618). Thompson
described Plaintiff as fully alert, oriented, and clear in sensorium; memory intact for
recent and remote events; competent to make decisions regarding treatment; makes
poor eye contact; very focused on himself; mood seems to press and affect congruent
(Tr. 618). She offered Plaintiff hospitalization, but he declined (Tr. 619). On May 26,
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2015, Thompson indicated his “psychosis seems to be mostly gone” (Tr. 616).
However, on June 23, 2015, Plaintiff reported visual distortions that he related to his
head injury (Tr. 626).
On January 12, 2016, Thompson noted that Plaintiff reported he was switching
from Abilify to Latuda and described an episode during the past week where he
became somewhat manic; thought he could fly; and had to be talked down by his
friends (Tr. 631). Thompson noted that Plaintiff “took Risperdal and that helped a
great deal” (Tr. 631). Thompson indicated in her note that despite the mental status
changes Plaintiff described associated with his switch from Abilify to Latuda, his affect
seemed exactly the same and she noted no changes in mental status (Tr. 631). On
January 20, 2016, Thompson noted that Plaintiff obtained insurance and was able to
go back on Abilify and was “doing as good as he has been in a long time” (Tr. 640).
Then, on March 8, 2016, Plaintiff returned early for a follow up appointment as he
was experiencing breakthrough psychosis with excessive fears, anxiety, and paranoia
(Tr. 634). Thompson noted that Plaintiff had developed more obsessive-compulsive
concerns about hygiene and touching objects that others have touched (Tr. 634).
In April 2016, Thompson noted Plaintiff reported more visual hallucinations
involving seeing bricks on a building melting or visions of a person who is dead and
seeing colors (Tr. 637). On May 13, 2016, Plaintiff retuned early for a follow up
appointment and reported breakthrough psychosis, hearing voices, and suicidal
ideations but no intent or plan (Tr. 821). He reported that last time this occurred
Risperdal helped him, but he is out of Risperdal now (Tr. 821). On August 8, 2016,
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Thompson indicated Plaintiff had one episode of paranoia since his last visit. He
became paranoid and thought his medication was poison and that someone was trying
to get into his home; his roommates gave him Risperdal and he improved (Tr. 819).
On November 30, 2016, Thompson noted that Plaintiff has some breakthrough
auditory hallucinations that he is treating PRN with Risperdal and therapy (Tr. 817).
On March 6, 2017, Thompson noted that Plaintiff had run out of medication and
started having suicidal ideation. Once back on his medication, Plaintiff improved.
Thompson indicated Plaintiff recently got married and was doing “quite well now”
(Tr. 815).
Against this backdrop, I find that the ALJ erred in considering Thompson’s
opinions. See 20 C.F.R. § 404.1527(f). Despite finding major depressive disorder with
psychosis a severe impairment at step two (Tr. 18) and citing to medical evidence
documenting Plaintiff’s psychosis (Tr. 2), the ALJ failed to discuss Plaintiff’s
personality disorder, psychosis, paranoia, or difficulty with finding medications that
controlled his symptoms when she concluded that Thompson’s assessments were “not
supported by or consistent with the record, including her own progress notes (Tr. 26).
As Plaintiff points out, although the ALJ correctly noted that a nurse practitioner was
not considered “an acceptable medical source” under the regulations applicable here,
the ALJ failed to consider that Thompson is a psychiatric specialist or her long-term
treatment relationship with Plaintiff. And, when considering Thompson’s opinions,
by failing to acknowledge Thompson’s treatment of Plaintiff’s psychosis and
hallucinations, and instead focusing on several mental status exams that revealed no
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psychosis or abnormalities and a lack of hospitalization and inpatient treatment (Tr.
23, 24, 26), the ALJ mischaracterized the record.
As Plaintiff indicates, Thompson’s treatment records reveal his depressed
mood, persistent or generalized anxiety, feelings of guilt or worthlessness, autistic
thought process, illogical thought process, suicidal ideation, paranoia, difficulty
thinking or concentrating, poor immediate, recent, and remote memory, intrusive
recollections of a traumatic experience, paranoia/ suspiciousness, recurrent panic
attacks, anhedonia/ pervasive loss of interests, change in personality, pathological
dependence, passivity, aggressiveness, psychomotor agitation, social withdrawal or
isolation, delusions, visual hallucinations, and other perceptual or reality disturbances
(Tr. 671, 675). As a result, I cannot conclude that the ALJ’s decision is based on
substantial evidence as it focuses on aspects of the evidence— that Plaintiff’s
headaches subsided when his seizures were controlled with medication and that his
mental status exams were “normal”— while disregarding contrary evidence— that
Plaintiff continued to suffer from headaches unrelated to seizure activity and an array
of symptoms related to his traumatic brain injury as well as his other impairments. See
McCruter v. Bowen, 791 F.2d 1544, 1548 (11th Cir. 1986).
Although the Commissioner correctly notes that the ALJ does not have to refer
to every piece of evidence, considering Plaintiff’s neurological and mental health
treatment history and the regulations, the Court cannot conclude that substantial
evidence supports the ALJ’s decision. While the ALJ need not refer to each and every
treatment note, the ALJ must demonstrate that she considered Plaintiff’s medical
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condition as a whole. See Buckwalter v. Acting Comm’r of Soc. Sec., 5 F.4th 1315, 1326
(11th Cir. 2021) (ALJ need not cite every piece of evidence in the record” but must
demonstrate he “considered the claimant’s medical condition as a whole”); Dyer v.
Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005) (ALJ not required to specifically
address every piece of evidence in the record). Here, aside from the ALJ’s reference
to a few mental status exams where Plaintiff appeared “normal,” any discussion of
Plaintiff’s difficulty maintaining mental stability and to his repeated episodes of
psychosis are conspicuously missing from the ALJ’s sparse summary of the medical
evidence. Aside from a discussion of seizures and seizure-related headaches, also
absent from the decision is a discussion of the neurological symptoms related to
Plaintiff’s traumatic brain injury (such as cluster headaches and head pain, memory
loss, mood swings, and fatigue). As in Simon, the ALJ’s references to office visit notes
reflecting Plaintiff’s mood as “euthymic,” his memory as “intact,” and his mini mental
status exams as “normal,” although true, hardly establish that Plaintiff does not suffer
from debilitating mental illness. Simon, 7 F.4th at 1106. Like the claimant in Simon,
the Plaintiff’s diagnosis caused Plaintiff to experience more serious symptoms than
those acknowledged by the ALJ.
In remanding this case, I point out that an ALJ must consider “the fundamental
differences between the relaxed, controlled setting of a medical clinic and the more
stressful environment of the workplace.” Simon, 7 F.4th at 1107 (quoting Morales v.
Apfel, 225 F.3d 310, 319 (3d Cir. 2000)) (“for a person who suffers from an affective
disorder or personality disorder marked by anxiety, the work environment is
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completely different from home or a mental health clinic”); see also Schink, 935 F.3d at
1263 (“it is not inconsistent – or even that unlikely … that a patient with a highly
disruptive mood disorder, in a structured one-on-one conversation with a mental
health professional, might be capable of ‘be[ing] redirected’ from his ‘tangential’
thought processes so as to ‘remain on topic.’”); Castro v. Comm’r of Soc. Sec., 783
F.App’x 948, 956 (11th Cir. 2019) (“Without more, we cannot say that [the treating
physician’s] observations of Castro’s judgment, insight, thought process, and thought
content in a treatment environment absent work stressors were inconsistent with his
assessments about the limitations she would face in a day-to-day work environment”).
Although Simon involved a claimant diagnosed with bipolar disorder, Plaintiff’s
mental health diagnosis of major depressive disorder with psychosis is a chronic
condition too.

Chronic mental disorders are characterized by “unpredictable

fluctuation of their symptoms, and thus it is not surprising that even a highly unstable
patient will have good days or possibly good months.” Id. (quoting Scott v. Astrue, 647
F.3d 734, 740 (7th Cir. 2011)). For those who suffer from chronic disorders, “‘a
snapshot of any single moment says little about [a person’s] overall condition,’ and an
ALJ who relies on such snapshots to discredit the remainder of a psychiatrist’s findings
demonstrates a ‘fundamental, but regrettably all-too-common, misunderstanding of
mental illness.’” Id. (quoting Punzio v. Astrue, 630 F.3d 704, 710 (7th Cir. 2011)). Like
the claimant in Simon, the Plaintiff’s diagnosis caused Plaintiff to experience more
serious symptoms than those acknowledged by the ALJ.

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B. Remaining Issues
Considering the remand, it is unnecessary to address the remaining issue (the
ALJ’s consideration of Plaintiff’s subjective complaints).
IV.

Conclusion

It is ORDERED:
(1) The ALJ’s decision is REVERSED and REMANDED to the
Commissioner for further administrative proceedings consistent with
this Order; and
(2) The Clerk of Court is directed to enter judgment for Plaintiff and close
the case.
DONE and ORDERED in Tampa, Florida on January 18, 2023.

cc:

Counsel of Record

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