Mestre v. Commissioner of Social Security
OPINION AND ORDER reversing and remanding the matter with instructions; Clerk to enter judgment accordingly and close the file. Signed by Magistrate Judge James Klindt on 9/19/2022. (KAW)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
Case No. 8:21-cv-14-JRK
Acting Commissioner of Social
OPINION AND ORDER 1
Michael Mestre (“Plaintiff”) is appealing the Commissioner of the Social
Security Administration’s (“SSA(’s)”) final decision denying his claim for
disability insurance benefits (“DIB”). Plaintiff’s alleged inability to work is the
result of Crohn’s disease,
fibromyalgia, Asperger’s syndrome, anxiety,
Administrative Proceedings (Doc. No. 16; “Tr.” or “administrative transcript”),
filed June 24, 2021, at 55, 72. Plaintiff protectively filed an application for DIB
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. 15), filed June 24, 2021; Reference Order (Doc. No. 17), entered June 24, 2021.
on July 3, 2018, alleging a disability onset date of March 5, 2018. 2 Tr. at 18894. The application was denied initially, Tr. at 54-68, 69, 70, 97-99, and upon
reconsideration, Tr. at 71-87, 88, 89, 101-06.
On February 19, 2020, an Administrative Law Judge (“ALJ”) held a
hearing during which Plaintiff, represented by counsel, and a vocational expert
(“VE”) testified. Tr. at 32-49 (hearing transcript), 94, 96 (appointment of
representative documents). At the time, Plaintiff was twenty-eight (28) years
old. Tr. at 35. On April 17, 2020, the ALJ issued a Decision finding Plaintiff not
disabled through the date of the Decision. See Tr. at 15-26.
Thereafter, Plaintiff sought review of the Decision by the Appeals
Council. See Tr. at 4-5 (Appeals Council exhibit list and order), 185-87 (request
for review). On November 4, 2020, 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 4, 2021, Plaintiff commenced this
action through counsel under 42 U.S.C. § 405(g) by timely filing a Complaint
(Doc. No. 1), seeking judicial review of the Commissioner’s final decision.
On appeal, Plaintiff challenges: 1) “whether the ALJ properly considered
the persuasiveness of the treating opinion evidence”; 2) “whether substantial
The application was actually completed on July 5, 2018, see Tr. at 188, but the
protective filing date for the application is listed elsewhere in the administrative transcript as
July 3, 2018, see, e.g., Tr. at 55, 72.
evidence supports the ALJ’s residual functional capacity (‘RFC’) assessment”;
and 3) “whether the ALJ properly considered [Plaintiff’s] subjective complaints
regarding his symptoms from fibromyalgia.” Joint Memorandum (Doc. No. 31;
“Joint Memo”), filed March 9, 2022, at 19, 35, 40 (emphasis and capitalization
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
physical medical opinion evidence (but not the mental opinion evidence). On
remand, an evaluation of the physical opinion evidence may impact the
RFC and subjective
complaints. 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
The ALJ’s Decision
When determining whether an individual is disabled,
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
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 sequential inquiry. See Tr. at 17-26.
At step one, the ALJ determined Plaintiff “has not engaged in substantial
gainful activity since March 5, 2018, the alleged onset date.” Tr. at 17 (emphasis
and citation omitted). At step two, the ALJ found that Plaintiff “has the
“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),
following severe impairments: obesity[,] fibromyalgia, Crohn’s disease, [OCD],
major depressive disorder, and autism spectrum disorder.” Tr. at 17 (emphasis
and citation omitted). At step three, the ALJ ascertained that Plaintiff “does
not have an impairment or combination of impairments that meets or medically
equals the severity of one of the listed impairments in 20 [C.F.R.] Part 404,
Subpart P, Appendix 1.” Tr. at 18 (emphasis and citation omitted).
The ALJ determined that Plaintiff has the following RFC:
[Plaintiff can] perform sedentary work as defined in 20
[C.F.R. §] 404.1567(a) except limited to occasional climbing of stairs
and ramps; and frequent balancing, stooping, kneeling, crouching
and crawling. He can never climb vertical ladders, ropes, or
scaffolds or work at open, unprotected heights. Standing and
walking is limited to about 2 hours total in an 8-hour workday, and
sitting is about 6 hours total in an 8-hour workday, with standard
breaks. He must avoid extreme vibrations. [Plaintiff] is limited to
understanding simple, routine, repetitive and unskilled tasks,
which require basic decision-making and adjust to simple changes;
and interaction with others, including the public, coworkers, and
supervisors limited to frequent.
Tr. at 19 (emphasis omitted).
At step four, the ALJ found that Plaintiff “is unable to perform any past
relevant work” as a “Furniture Assembler/Installer of Office Furniture.” Tr. at
24 (some emphasis and citation omitted). At the fifth and final step of the
sequential inquiry, after considering Plaintiff’s age (“26 years old . . . on the
alleged disability onset date”), education (“at least a high school education”),
work experience, and RFC, the ALJ found that “there are jobs that exist in
significant numbers in the national economy that [Plaintiff] can perform,” such
as “Clerical Addresser,” “Computer Breaker/Circuit,” and “Products Inspector.”
Tr. at 25 (some emphasis and citation omitted). The ALJ concluded Plaintiff
“has not been under a disability . . . from March 5, 2018, through the date of
th[e D]ecision.” Tr. at 26 (emphasis and citation omitted).
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
the Commissioner’s findings. Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155,
1158-59 (11th Cir. 2004) (per curiam).
Plaintiff argues that the ALJ erred in evaluating the various medical
opinions regarding Plaintiff’s limitations. Joint Memo at 19-27. There are three
treating opinions at issue: 1) rheumatologist Ginige DeSilva, M.D.; 2) internal
medicine specialist Eduardo Martinez, M.D.; and 3) a joint opinion by treating
psychiatrist Joseph Adan, M.D. and Rebecca Shytle, ARNP. See id. In addition,
there are three non-examining state agency physicians’ opinion at issue: 1)
Roland Gutierrez, M.D. (physical RFC opinion); 2) Lee Reback, Psy.D., P.A.
(mental RFC opinion); and Dawn Jackson, Psy.D. (mental RFC opinion). See id.
at 20-25. Responding, Defendant asserts the ALJ appropriately evaluated the
medical opinions in accordance with the revised SSA rules and Regulations. Id.
at 27-34. Further, Defendant contends the ALJ’s analysis is supported by
substantial evidence. Id.
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).
“Because section 404.1520c falls within the scope of the Commissioner’s
authority and was not arbitrary and capricious, it abrogates [the United States
Court of Appeals for the Eleventh Circuit’s] prior precedents applying the
treating-physician rule.” Harner v. Soc. Sec. Admin., Comm’r, 38 F.4th 892, 896
(11th Cir. June 27, 2022).
Plaintiff filed his DIB application after the effective date of section 404.1520c,
so the undersigned applies the revised rules and Regulations.
To the extent Plaintiff argues that the Court should apply this rule and
precedent articulating it, the argument is foreclosed by Harner (which was decided after
briefing in this case closed).
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
§ 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).
The RFC assessment “is the most [a claimant] can still do despite [his or
her] limitations.” 20 C.F.R. § 404.1545(a)(1). It is used at step four to determine
whether a claimant can return to his or her past relevant work, and if necessary,
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).
it is also used at step five to determine whether the claimant can perform any
other work that exists in significant numbers in the national economy. 20 C.F.R.
§ 404.1545(a)(5). In assessing a claimant’s RFC, the ALJ “must consider
limitations and restrictions imposed by all of an individual’s impairments, even
those that are not ‘severe.’” SSR 96-8P, 1996 WL 374184 at *5; see also Pupo v.
Comm’r, Soc. Sec. Admin., 17 F.4th 1054, 1064 (11th Cir. 2021) (citing Schink
v. Comm’r of Soc. Sec., 935 F.3d 1245, 1268 (11th Cir. 2019)); Swindle v.
Sullivan, 914 F.2d 222, 226 (11th Cir. 1990) (stating that “the ALJ must
consider a claimant’s impairments in combination”) (citing 20 C.F.R. §
404.1545; Reeves v. Heckler, 734 F.2d 519, 525 (11th Cir. 1984)).
Here, all three treating opinions about Plaintiff’s functioning, if accepted
either singularly or in combination, would likely result in a finding of disability.
See Tr. at 479-80 (Dr. DeSilva opining in August 2018 about the effects of
Plaintiff’s fibromyalgia, including needing “frequent periods of rest on a daily
basis” and “[d]aily flare ups of pain lasting all day”); Tr. at 641-45 (Dr. Martinez
opining in October 2019 about the effects of Crohn’s disease, fibromyalgia, and
Asperger’s syndrome, including that Plaintiff can sit and stand only one hour
each per day, must get up every 30 minutes, can occasionally lift or carry up to
five pounds, will need unscheduled breaks hourly, will be absent more than
three times per month, and all symptoms are aggravated by stress); Tr. at 54348 (Dr. Acan and Ms. Shytle opining in May 2018 about Plaintiff’s mental
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capacity, including poor focus and concentration, lack of sleep and impaired
social skills; assigning marked limitations in fourteen areas; and stating
Plaintiff will be absent from work more than three times per month). In the
Decision, the ALJ found Dr. DeSilva’s opinion to be “unpersuasive”; Dr.
Martinez’s opinion to be “inconsistent”; and Dr. Adan/Ms. Shytle’s opinion to be
Tr. at 23-24. The ALJ instead relied on the non-examining
opinion of Dr. Gutierrez for the physical limitations, and on the opinions of Drs.
Reback and Jackson for the mental limitations. Tr. at 23; see Tr. at 79-82 (Dr.
Gutierrez’s opinion); Tr. at 59-61 (Dr. Reback’s opinion) Tr. at 82-85 (Dr.
The ALJ erred with respect to the physical RFC opinions at issue. In
finding Dr. DeSilva’s opinion to be “unpersuasive,” ALJ specifically pointed to
the doctor’s findings about decreased grip and extremity strength and
corresponding “decreased ability to perform fine and gross manipulation,”
observing that those findings were inconsistent with the doctor’s examination
findings. Tr. at 24. However, the opinion on which the ALJ relied, that of Dr.
Gutierrez, similarly noted “decreased muscle strength throughout extremities”
and “decreased ability to perform fine and gross movements” because of “17
The ALJ did not recognize that the opinion authored by Dr. Adan was coauthored by Ms. Shytle, see Tr. at 23, but this mistake did not have a material effect on the
ALJ’s analysis of the opinion.
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identified tender points,” Tr. at 80, without the ALJ recognizing this limitation
at all. Thus, this assigned limitation was actually consistent with the opinion
the ALJ purportedly accepted, but the ALJ did not account for the limitation in
the RFC. See Tr. at 19.
Moreover, the ALJ stated that Dr. DeSilva did not have the opportunity
to examine 2019 records that “showed [Plaintiff’s] fibromyalgia and C[rohn]’s
disease stable and asymptomatic,” Tr. at 24, but the ALJ overlooked a January
2020 record that was submitted during the hearing but evidently inadvertently
not exhibited until after the Decision, documenting flare up of the Crohn’s and
worsening fibromyalgia pain. See Tr. at 50-53 (record), 35 (discussion of record
As to Dr. Martinez’s opinion, the ALJ found it to be “inconsistent” because
the doctor limited Plaintiff to lifting ten pounds but Plaintiff admitted lifting
twenty pounds. Tr. at 24. The ALJ also stated that “the record indicated that
[Plaintiff] only had mild Asperger’s syndrome.” Tr. at 24. A review of Dr.
Martinez’s specialty (internal medicine) and the details provided in the opinion
show that while he did opine to a degree about the effects of Plaintiff’s
Asperger’s syndrome and fibromyalgia, his focus (and treatment) was on the
effects of Crohn’s disease. See Tr. at 641-45. Yet, the ALJ in addressing the
opinion focuses on the other aspects. While the ALJ was accurate that the
weight limitation compared to Plaintiff’s admission was inconsistent, the ALJ
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too narrowly discussed the opinion. It is unclear why the ALJ did not accept Dr.
Martinez’s findings about the effects of the Crohn’s disease. In addition, the
ALJ neglected to acknowledge or discuss the bulk of the records from Florida
Center for Gastroenterology that shed more light on the effects of the Crohn’s
disease, see Tr. at 559-74, or, as observed previously, the January 2020 record
documenting a flare up of the Crohn’s disease due to the once-effective
medication not being covered by Plaintiff’s insurance, see Tr. at 50-53.
With respect to the mental RFC opinions at issue, Plaintiff’s only real
challenge to the ALJ’s findings are that the “ALJ hones in on a very brief period
citing to records from July and September 2019” and “does not take into account
the longitudinal treatment history and the nature of mental health
impairments; hallmarked by their waxing and waning symptoms.” Joint Memo
at 25. But, Plaintiff recognizes that the ALJ’s findings about Plaintiff doing
better on Latuda in July and September 2019 are accurate. Id. Upon review of
the ALJ’s reasoning for finding Dr. Adan’s/Ms. Shytle’s opinion to be
unpersuasive and the opinions of Dr. Reback and Dr. Jackson to be persuasive,
the undersigned is not convinced the ALJ erred on these matters. The ALJ’s
These records contain notes from Justin Nudell, D.O., to whom Plaintiff refers
in arguing the ALJ overlooked various treatment notes. See Joint Memo at 22-23. The notes
contain an embedded conclusion by Dr. Nudell that Plaintiff was “[u]nable to work [because]
of . . . health issues.” Tr. at 566.
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reasoning is adequate under the revised Regulations and is supported by
The ALJ reversibly erred with respect to the medical opinions addressing
Plaintiff’s physical RFC, but not with respect to the mental RFC. In light of the
foregoing, it is
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:
Reconsider the physical medical opinion evidence (opinions of Drs.
Gutierrez, DeSilva, and Martinez) consistent with the applicable
If appropriate, address the other issues raised by Plaintiff in this
Take such other action as may be necessary to resolve this claim
The Clerk is further directed to close the file.
In the event benefits are awarded on remand, Plaintiff’s counsel
shall ensure that any § 406(b) fee application be filed within the parameters set
forth by the Standing Order on Management of Social Security Cases entered
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on December 7, 2021 in Case No. 3:21-mc-001-TJC (Doc. No. 43, ¶¶ 6, 8).
DONE AND ORDERED in Jacksonville, Florida on September 19, 2022.
Counsel of Record
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