Storch v. Commissioner of Social Security

Filing 27

ORDER: The Commissioner's decision is remanded, and the Clerk is directed to enter judgment in favor of the plaintiff. Signed by Magistrate Judge Amanda Arnold Sansone on 3/27/2024. (CES)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
CHRISTOPHER STORCH,
v.

Plaintiff,

Case No. 8:23-cv-286-AAS

MARTIN O’MALLEY,
Commissioner of the Social
Security Administration, 1
Defendant.
__________________________________/
ORDER
Christopher Storch requests judicial review of a decision by the
Commissioner of Social Security (Commissioner) denying his claim for
disability insurance benefits (DIB) and supplemental security income (SSI)
under the Social Security Act, 42 U.S.C. Section 405(g). (Doc. 22). After
reviewing the record, including the transcript of the proceedings before the
Administrative Law Judge (ALJ), the administrative record, the pleadings,
and the memoranda submitted by the parties, the Commissioner’s decision is
REMANDED for further consideration.
I.

PROCEDURAL HISTORY
Mr. Storch applied for DIB and SSI on July 8, 2020, with an alleged

On December 20, 2023, Martin O’Malley became the Commissioner of the Social
Security Administration.

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disability onset date of May 9, 2017. (Tr. 451). Disability examiners denied
Mr. Storch’s application initially and after reconsideration. (Tr. 124, 125, 127,
128–47). Mr. Storch requested a hearing, which was held on July 29, 2021,
and the ALJ issued a partially favorable decision. (Tr. 148–72). Mr. Storch
requested review of the ALJ’s decision, and the Appeals Council remanded
the case to the ALJ for further proceedings. (Tr. 173–85, 434–36). A second
hearing was held on May 23, 2022. Following the hearing, the ALJ issued an
unfavorable decision to Mr. Storch. (Tr. 14–41). The Appeals Council denied
Mr. Storch’s request for review, making the ALJ’s decision final. (Tr. 1–11).
Mr. Storch now requests judicial review of the Commissioner’s decision. (Doc.
1).
II.

NATURE OF DISABILITY CLAIM
A.

Background

Mr. Storch was 27 years old at the time of the ALJ’s decision. (Tr. 32,
491). Mr. Storch has a limited education and past relevant work experience
as a maintenance cleaner. (Tr. 32, 496). Mr. Storch alleges disability due to:
generalized anxiety disorder; panic attacks; high blood pressure; chronic
fatigue weakness; muscle spasms; anti-social disorder; agoraphobia; and
obesity. (Tr. 495).

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B.

Summary of the Decision

The ALJ must follow five steps when evaluating a claim for disability. 2
20 C.F.R. §§ 404.1520(a), 416.920(a). First, if a claimant is engaged in
substantial gainful activity, 3 he is not disabled. 20 C.F.R. §§ 404.1520(b),
416.920(b). Second, if a claimant has no impairment or combination of
impairments that significantly limit his physical or mental ability to perform
basic work activities, he has no severe impairment and is not disabled. 20
C.F.R. §§ 404.1520(c), 416.920(c); see McDaniel v. Bowen, 800 F.2d 1026, 1031
(11th Cir. 1986) (stating that step two acts as a filter and “allows only claims
based on the most trivial impairments to be rejected”). Third, if a claimant’s
impairments fail to meet or equal an impairment in the Listings, he is not
disabled. 20 C.F.R. §§ 404.1520(d), 416.920(d). Fourth, if a claimant’s
impairments do not prevent him from doing past relevant work, he is not
disabled. 20 C.F.R. §§ 404.1520(e), 416.920(e). At this fourth step, the ALJ
determines the claimant’s residual functional capacity (RFC). 4 Id. Fifth, if a
claimant’s impairments (considering his RFC, age, education, and past work)
do not prevent him from performing work that exists in the national

If the ALJ determines the claimant is disabled at any step of the sequential
analysis, the analysis ends. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).

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Substantial gainful activity is paid work that requires significant physical or
mental activity. 20 C.F.R. §§ 404.1572, 416.972.
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3

economy, he is not disabled. 20 C.F.R. §§ 404.1520(g), 416.920(g).
The ALJ determined Mr. Storch had not engaged in substantial gainful
activity since May 9, 2017, the alleged onset date. (Tr. 20). The ALJ found
Mr. Storch has these severe impairments: panic disorder and anxiety. (Id.).
However, the ALJ concluded Mr. Storch’s impairments or combination of
impairments failed to meet or medically equal the severity of an impairment
in the Listings. (Tr. 22).
The ALJ found Mr. Storch had an RFC to perform a full range of work
at all exertional levels, with these non-exertional limitations:
[Mr. Storch] is limited to simple, routine, “low stress” tasks,
defined as work not performed at a high production pace or
requiring strict production quotas and work not involving
negotiation, conflict resolution, directing the work of others, or
being responsible for the safety and welfare of others as the
primary function of the job. He can tolerate no more than routine
workplace changes and occasional interaction with coworkers and
the public.
(Tr. 25).
Based on these findings and the testimony of a vocational expert (VE),
the ALJ determined Mr. Storch could not perform his past relevant work. (Tr.
32). However, the VE testified that an individual with Mr. Storch’s age,
education, work experience, and RFC could perform other jobs that exist in
significant numbers in the national economy. (Id.). Specifically, Mr. Storch
A claimant’s RFC is the level of physical and mental work she can consistently
perform despite her limitations. 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1).
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can perform the jobs of wharf worker, burlap roll coverer, and fish/egg
packer. (Tr. 33). As a result, the ALJ concluded Mr. Storch was not disabled.
(Id.).
III.

ANALYSIS
A.

Standard of Review

Review of the ALJ’s decision is limited to reviewing whether the ALJ
applied correct legal standards and whether substantial evidence supports
his findings. McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir. 1988);
Richardson v. Perales, 402 U.S. 389, 390 (1971). Substantial evidence is more
than a mere scintilla but less than a preponderance. Dale v. Barnhart, 395
F.3d 1206, 1210 (11th Cir. 2005) (citation omitted). In other words, there
must be sufficient evidence for a reasonable person to accept as enough to
support the conclusion. Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995)
(citations omitted). The Supreme Court explained, “whatever the meaning of
‘substantial’ in other contexts, the threshold for such evidentiary sufficiency
is not high.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019).
A reviewing court must affirm a decision supported by substantial
evidence “even if the proof preponderates against it.” Phillips v. Barnhart,
357 F.3d 1232, 1240 n.8 (11th Cir. 2004) (citations omitted). The court must
not make new factual determinations, reweigh evidence, or substitute its
judgment for the Commissioner’s decision. Id. at 1240 (citation omitted).
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Instead, the court must view the whole record, considering evidence favorable
and unfavorable to the Commissioner’s decision. Foote, 67 F.3d at 1560; see
also Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (citation omitted)
(stating that the reviewing court must scrutinize the entire record to
determine the reasonableness of the Commissioner’s factual determinations).
B.

Issues on Appeal

Mr. Storch raises three issues on appeal: (1) whether the ALJ properly
considered the medical opinions of Dr. Lawrence Annis and Dr. Sara
Malowitz; (2) whether the ALJ properly considered Mr. Storch’s combination
of impairments; and (3) whether the ALJ properly considered Mr. Storch’s
subjective complaints and the statements made by Mr. Storch’s aunt.
Because remand is appropriate as to the first issue, the court’s analysis
starts—and ends—with consideration of the first issue.
1.

Whether the ALJ properly considered the medical
opinions of Dr. Annis and Dr. Malowitz.

Mr. Storch argues the ALJ failed to properly consider the medical
opinions of Dr. Annis and Dr. Malowitz. (Doc. 22, pp. 3–16). In response, the
Commissioner contends the ALJ properly considered the medical opinion
evidence in reaching his RFC determination. (Doc. 26, pp. 5–15).
The revised regulations explain that an ALJ will not “defer or give any
specific evidentiary weight, including controlling weight, to any medical
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opinion(s) or prior administrative medical finding(s), including those from
[the claimant’s own] medical sources.” 20 C.F.R. §§ 404.1520c(a); 416.920c(a).
The new regulatory scheme “forbids administrative law judges from
‘defer[ring] or giv[ing] any specific evidentiary weight, including controlling
weight, to any medical opinion(s),’” Harner v. Social Security Admin.,
Comm’r, 38 F.4th 892, 898 (11th Cir. 2022), and an ALJ does not have to
“explain why good cause exists to disregard the treating source’s opinion.”
Matos v. Comm’r of Soc. Sec., No. 21-11764, 2022 WL 97144, at *4 (11th Cir.
Jan. 10, 2022). The ALJ must now determine the persuasiveness of medical
opinions by considering supportability, consistency, treatment relationship,
specialization,

and

other

factors.

20

C.F.R.

§§

404.1520c(c)(1)–(5),

416.920c(c)(1)–(c)(5). The ALJ must articulate how the supportability and
consistency factors were considered for a medical source’s opinions or prior
administrative medical findings, but an ALJ need not articulate how the
remaining factors were considered unless there are equally persuasive
medical opinions or prior administrative medical findings. 20 C.F.R. §§
404.1520c(b)(2), 416.920c(b)(2).
The ALJ considered Dr. Malowitz’s evaluation, including a statement
that Mr. Storch’s symptoms “appear to be severely impacting activities of
daily living, vocational performance, and interpersonal interactions.” (Tr. 31,
711). In discounting this statement, the ALJ noted that this conclusion is
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unsupported by Dr. Malowitz’s own examination. (Tr. 31). Specifically, the
ALJ pointed to Dr. Malowitz’s notes from the examination “which revealed
proper dress, proper grooming, proper hygiene, good eye contact, cooperation,
normal behavior, proper alertness and orientation, no tremors, normal
speech, average intelligence, and demonstrated abilities to perform verbal
math calculations, recall two of three objects after a delay, perform serial
seven calculations, and spell ‘world’ backward.” (Tr. 31, 708–10). The ALJ
does not articulate how any of the noted observations are unsupportive of Dr.
Malowitz’s conclusion that Mr. Storch’s symptomology from anxiety and
agoraphobia are impacting his life, including his vocational abilities.
Evidence of Mr. Storch’s proper hygiene and general intelligence is not
necessarily unsupportive of a finding of debilitating anxiety and agoraphobia.
“[I]t 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 being redirected from his
tangential thought processes so as to remain on topic.” Schink v. Comm’r of
Soc. Sec., 935 F.3d 1245, 1263 (11th Cir. 2019). In fact, none of the
highlighted observations are mutually exclusive with either anxiety or
agoraphobia, and each observation could well exist within a person with
extreme anxiety or agoraphobia. See Erik H. v. Comm’r Soc. Sec. Admin., No.
3:22-CV-01270-AR, 2024 WL 578809, *3 (D. Or. Feb. 13, 2024) (“[F]air insight
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and judgment are not valid inconsistencies because they do not contradict
plaintiff's symptoms.”). The ALJ did not adequately explain how Dr.
Malowitz’s opinion was unsupported by the record. See Morales v. Apfel, 225
F.3d 310, 319 (3d Cir. 2000) (“For a person [] who suffers from an affective or
personality disorder marked by anxiety, the work environment is completely
different from home or a mental health clinic.”).
The ALJ further found Dr. Malowitz’s statement regarding the
“severe[] impact[]” of Mr. Storch’s symptoms to be inconsistent with prior
therapy records that showed no panic attacks, improvement in social
activities, and improvement in anxiety with medication management. (Tr. 31,
55, 660). The ALJ fails to adequately explain how the record is inconsistent
with Dr. Malowitz’s opinion. The ALJ points to testimony where Mr. Storch
stated, “I used to see a counselor, [] but she helped me get some better
control, at the time . . . I felt I could stop seeing her, at the time.” (Tr. 55). Mr.
Storch then testified he has panic attacks, on average, once a week, some of
which can last an entire day. (Tr. 56). Mr. Storch elaborated, “that’s the main
reason I stopped working . . . I was starting to have day long panic attacks. I
couldn’t [] work, let alone leave the house.” (Tr. 56–57). Substantial evidence
does not support the ALJ’s rejection of Dr. Malowitz’s conclusion on the
impact of Mr. Storch’s symptoms. See Richey v. Soc. Sec. Admin., Comm’r,
No. 22-11595, 2023 WL 4013525, *3 (11th Cir. June 15, 2023) (“[N]ormal
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thought content, eurythmic mood, and logical thought process, and his
improvements on medications [] is an insufficient basis to reject a treating
physician’s opinions.”).
The ALJ focused mostly on the mental status evaluation and largely
ignored Dr. Malowitz’s other examination notes, such as, “[Mr. Storch]
worries about having further attacks. He attempts to stay in the house as
much as he can due to fear about having panic attacks.” (Tr. 709). Dr.
Malowitz goes on to report, “[t]he current level of mental health symptoms
would best be characterized as severe,” and “[Mr. Storch] cannot complete the
shopping due to significant anxiety,” and “the job ended because his panic
attacks worsened.” (Tr. 709).
Discounting these notes, the ALJ focused seemingly solely on the
mental status evaluation and did not give proper reasons to discount the rest
of Dr. Malowitz’s examination notes. The ALJ must explain why those
findings by Dr. Malowitz were unsupported or inconsistent, especially in this
case where the mental status evaluation is not inconsistent with the rest of
Dr. Malowitz’s report. See Schink, 935 F.3d at 1263 (“[I]t was insufficient for
the ALJ to point to positive or neutral observations that created, at most,
trivial and indirect tensions with the treating physician's opinion by showing
that the claimant's impairments were merely not all-encompassing.”).
Accordingly, substantial evidence does not support the ALJ’s discounting of
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Dr. Malowitz’s opinion, and remand is required.
Two points bear mention. First, the Commissioner notes “Plaintiff’s
reliance on cases involving claims [] dealing with the ‘treating physician’
standard are not applicable to the ALJ’s consideration of Plaintiff’s current
claims.” (Doc. 26, p. 6). The above-mentioned cases of Schink, Morales, and
Richey are all cases that were decided under the treating physician standard.
The undersigned finds these cases instructive only insofar as their analysis of
how ALJ’s can misalign certain facts as discrepancies in a claimant’s mental
health records, not for the standard they employed at the time. Second, Mr.
Storch argues the ALJ did not properly account for Dr. Annis’s “moderate
limitations” findings in the Part B criteria in reaching the RFC
determination. (Doc. 22, p. 15). On remand, the ALJ should reassess both Dr.
Malowitz’s and Dr. Annis’s medical opinions, and any other medical opinions
deemed necessary.
2. Remaining Issues
Considering the above findings, the court need not address this
remaining claim of error. See, e.g., Demench v. Sec’y of Dep’t of Health &
Human Servs., 913 F.2d 882, 884 (11th Cir. 1990) (declining to address the
plaintiff’s remaining arguments due to conclusions reached in remanding the
case); Jackson v. Bowen, 801 F.2d 1291, 1294 n.2 (11th Cir. 1986) (stating it
is unnecessary to review other issues raised on appeal where remand is
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required and such issues will likely be reconsidered in the further
proceedings); Francis v. Saul, No. 8:18-CV-2492-T-SPF, 2020 WL 1227589, at
*4 (M.D. Fla. Mar. 13, 2020) (holding that the plaintiff’s remaining issues
need not be addressed because the case is being remanded to the
Commissioner); Bekiempis v. Colvin, No. 8:16-cv-192-T-27TGW, 2017 WL
459198, at *5 (M.D. Fla. Jan. 17, 2017) (finding it appropriate to pretermit
discussion of two other contentions raised by the claimant because of a
remand, which would generate a new decision).
On remand, the Commissioner should reassess the entire record,
including the medical opinion evidence, and provide sufficient evidentiary
support for his decision.
IV.

CONCLUSION
For the reasons stated, the Commissioner’s decision is REMANDED,

and the Clerk is directed to enter judgment in favor of the Plaintiff.
ORDERED in Tampa, Florida on March 27, 2024.

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