Clarke v. Commissioner of Social Security

Filing 19

OPINION AND ORDER reversing the decision of the Commissioner and remanding this action for further proceedings. The Clerk of Court is directed to enter judgment consistent with this opinion, terminate any motions and deadlines, and afterward close the file. Signed by Magistrate Judge Douglas N. Frazier on 3/5/2025. (brh)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
LATONYA CLARKE,
Plaintiff,
v.

Case No.: 8:23-cv-2990-DNF

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
OPINION AND ORDER
Plaintiff Latonya Clarke seeks judicial review of the final decision of the
Commissioner of the Social Security Administration (“SSA”) denying her claim for
supplemental security income benefits. The Commissioner filed the Transcript of
the proceedings (“Tr.” followed by the appropriate page number), and the parties
filed legal memoranda setting forth their positions. As explained below, the decision
of the Commissioner is REVERSED and REMANDED under § 205(g) of the
Social Security Act, 42 U.S.C. § 405(g).
I.

Social Security Act Eligibility, Standard of Review, Procedural
History, and the ALJ’s Decision
A.

Social Security Eligibility

The law defines disability as the inability to do 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. §§ 416(i), 423(d)(1)(A),
1382c(a)(3)(A); 20 C.F.R. §§ 404.1505(a), 416.905(a). The impairment must be
severe, making the claimant unable to do her previous work, or any other substantial
gainful activity which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A),
1382c(a)(3)(A); 20 C.F.R. §§ 404.1505–404.1511, 416.905–416.911.
B.

Standard of Review

The Commissioner’s findings of fact are conclusive if supported by
substantial evidence. 42 U.S.C. § 405(g). “Substantial evidence is more than a
scintilla and is such relevant evidence as a reasonable person would accept as
adequate to support a conclusion. Even if the evidence preponderated against the
Commissioner’s findings, we must affirm if the decision reached is supported by
substantial evidence.” Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th
Cir. 2004). In conducting this review, this Court may not reweigh the evidence or
substitute its judgment for that of the ALJ, but must consider the evidence as a whole,
taking into account evidence favorable as well as unfavorable to the decision.
Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (citation
omitted); Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995); Martin v. Sullivan,
894 F.2d 1520, 1529 (11th Cir. 1990). Unlike findings of fact, the Commissioner’s
conclusions of law are not presumed valid and are reviewed under a de novo

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standard. Keeton v. Dep’t of Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir.
1994); Maldonado v. Comm’r of Soc. Sec., No. 20-14331, 2021 WL 2838362, at *2
(11th Cir. July 8, 2021); Martin, 894 F.2d at 1529. “The [Commissioner’s] failure
to apply the correct law or to provide the reviewing court with sufficient reasoning
for determining that the proper legal analysis has been conducted mandates
reversal.” Keeton, 21 F.3d at 1066.
The ALJ must follow five steps in evaluating a claim of disability. 20 C.F.R.
§§ 404.1520, 416.920. At the first step, the ALJ must determine whether the claimant
is

currently

engaged

in

substantial

gainful

employment.

20

C.F.R.

§ 404.1520(a)(4)(i), (b); 20 C.F.R. § 416.920(a)(4)(i), (b). At step two, the ALJ must
determine whether the impairment or combination of impairments from which the
claimant allegedly suffers is “severe.” 20 C.F.R. § 404.1520(a)(4)(ii), (c); 20 C.F.R.
§ 416.920(a)(4)(ii), (c). At step three, the ALJ must decide whether the claimant’s
severe impairments meet or medically equal a listed impairment. 20 C.F.R.
§ 404.1520(a)(4)(iii), (d); 20 C.F.R. § 416.920(a)(4)(iii), (d). If the ALJ finds the
claimant’s severe impairments do not meet or medically equal a listed impairment,
then the ALJ must determine whether the claimant has the residual functional
capacity (“RFC”) to perform her past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv),
(e)–(f); 20 C.F.R. § 416.920(a)(4)(iv), (e)–(f).

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If the claimant cannot perform her past relevant work, the ALJ must determine
at step five whether the claimant’s RFC permits her to perform other work that exists
in the national economy. 20 C.F.R. § 404.1520(a)(4)(v), (g); 20 C.F.R.
§ 416.920(a)(4)(v), (g). At the fifth step, there are two ways in which the ALJ may
establish whether the claimant is capable of performing other work available in the
national economy. The first is by applying the Medical Vocational Guidelines, and
the second is by the use of a vocational expert. Phillips v. Barnhart, 357 F.3d 1232,
1239-40 (11th Cir. 2004); Atha v. Comm’r, Soc. Sec. Admin., 616 F. App’x 931, 933
(11th Cir. 2015).
The claimant bears the burden of proof through step four. Atha, 616 F. App’x
at 933. If the claimant meets this burden, then the burden temporarily shifts to the
Commissioner to establish the fifth step. Id.; 20 C.F.R. § 404.1520(a)(4)(v), (g); 20
C.F.R. § 416.920(a)(4)(v), (g). If the Commissioner presents evidence of other work
that exists in significant numbers in the national economy that the claimant is able
to perform, only then does the burden shift back to the claimant to prove she is unable
to perform these jobs. Atha, 616 F. App’x at 993.
C.

Procedural History

Plaintiff applied for supplemental security income benefits on May 3, 2019,
alleging disability beginning on September 10, 2017. (Tr. 348, 586-92). Plaintiff
later amended the alleged onset date to May 3, 2019, the date the application was

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filed. (Tr. 243). The application was denied initially and on reconsideration. (Tr.
348, 367). Plaintiff requested a hearing, and on October 20, 2020, a hearing was held
before Administrative Law Judge Pedro Tejada-Rivera. (Tr. 267-97). On April 26,
2021, ALJ Tejada-Rivera entered a decision finding Plaintiff not under a disability
since May 3, 2019, the date the application was filed. (Tr. 374-90). Plaintiff
requested review of the decision by the Appeal Council, and the Appeals Council
remanded the case to an administrative law judge for further proceedings. (Tr. 39699).
On remand, the claim was assigned to Administrative Law Judge Amber
Downs (“ALJ”). She held another hearing on November 1, 2022. (Tr. 237-66). On
June 22, 2023, the ALJ entered a decision finding Plaintiff not under a disability
since May 3, 2019, the date the application was filed. (Tr. 18-34). Plaintiff filed a
Complaint (Doc. 1) on December 29, 2023, and the case is ripe for review. The
parties consented to proceed before a United States Magistrate Judge for all
proceedings. (Doc. 1).
D.

Summary of ALJ’s Decision

At step one of the sequential evaluation, the ALJ found that Plaintiff had not
engaged in substantial gainful activity since May 3, 2019, the application date. (Tr.
21). At step two, the ALJ found that Plaintiff had the following severe impairments:
“degenerative disc disease, obesity, anxiety, and depression.” (Tr. 21). At step three,

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the ALJ found that Plaintiff did not have an impairment or combination of
impairments that meets or medically equals the severity of any of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 416.920(d),
416.925, and 416.926). (Tr. 22).
Before proceeding to step four, the ALJ found that Plaintiff had the following
RFC:
After careful consideration of the entire record, the
undersigned finds that the claimant has the residual functional
capacity to perform light work as defined in 20 [C.F.R.
§] 416.967(b) except she can lift and/or carry twenty pounds
occasionally and ten pounds frequently, and she can sit for six
hours, stand for six hours, and walk for six hours in an eighthour workday. The claimant can push and/or pull as much as
she can lift and/or carry. The claimant can operate hand
controls with right and left hands occasionally, and she can
frequently handle items and finger with either hand. The
claimant can climb ramps and stairs occasionally, but she can
never climb ladders, ropes, or scaffolds. The claimant can
occasionally stoop, kneel, crouch, and crawl. The claimant can
have occasional exposure to dust, odors, fumes, and pulmonary
irritants, and she can have frequent exposure to unprotected
heights, moving mechanical parts, and vibration. The claimant
can understand, remember, and carry out simple, routine tasks,
with an SVP level of 1 to 2, and she can occasionally interact
with the public, coworkers, and supervisors. The claimant can
maintain attention, concentration, persistence, and pace in twohour increments throughout an eight-hour workday with
normal breaks, and she should perform no tasks requiring
depth perception.

(Tr. 24).
At step four, the ALJ determined that Plaintiff was unable to perform her past
relevant work as an outside delivery worker. (Tr. 32). At step five, the ALJ found

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that considering Plaintiff’s age (42 years old on the date the application was filed),
education (limited), work experience, and RFC, there were jobs that existed in
significant numbers in the national economy that Plaintiff could perform. (Tr. 3233). Specifically, the vocational expert testified that a person with Plaintiff’s
limitations could perform such occupations as:
(1) Inspector, DOT 723.687-014, 1 light, SVP 2,
(2) Garment Sorter, DOT 222.687-014, light, SVP 2,
(3) Marker, DOT 209.587-034, light, SVP 2
(Tr. 33). The ALJ concluded that Plaintiff had not been under a disability since May
3, 2019, the date the application was filed. (Tr. 34).
II.

Analysis
On appeal, Plaintiff raises two issues:
(1)

Whether the ALJ properly considered the medical opinions of record;
and

(2)

Whether the ALJ properly considered Plaintiff’s subjective complaints.

(Doc. 13 p. 9).
A.

Medical Opinions

Plaintiff challenges the ALJ’s evaluation of the opinions of Nitin P. Dhiman,
M.D., Yarledis Salcedo, M.D., Howard Shapiro, M.D., and Richard Hostler, M.D.

1

DOT refers to the Dictionary of Occupational Titles.

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(Doc. 13, p. 12-19). Plaintiff’s arguments on the opinions of Drs. Salcedo and
Shapiro are persuasive.
The regulations for disability cases filed after March 27, 2017 – such as this
one – changed and an ALJ no longer defers or gives any specific evidentiary weight
to a medical opinion. 20 C.F.R. § 404.1520c(a), 20 C.F.R. § 416.920c(a). Thus, an
ALJ no longer uses the term “treating source” and does not defer or give specific
evidentiary weight, including controlling weight, to any medical opinion or prior
administrative medical finding. Torres v. Comm’r of Soc. Sec., No. 6:19-cv-1662ORL-PDB, 2020 WL 5810273, at *2 (M.D. Fla. Sept. 30, 2020) (citing 20 C.F.R.
§ 404.1520c(a)).
Instead, an ALJ assesses the persuasiveness of a medical source’s opinions
given these five factors, with the first two being the most important: (1)
supportability; (2) consistency; (3) relationship with the claimant, including the
length, frequency, and purpose of the examining and any treatment relationship; (4)
specialization; and (5) other factors, such as the source’s familiarity with other
evidence concerning the claim, that tend to support or contradict the medical
opinion. 20 C.F.R. § 404.1520c(a)-(c); 20 C.F.R. § 416.920c(a)-(c). An ALJ may
but is not required to explain how he considers factors other than supportability and
consistency, unless two or more opinions are equally persuasive on the same issue.
20 C.F.R. § 404.1520c(b)(2); 20 C.F.R. § 416.920c(b)(2).

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For supportability, the revised rules provide: “The more relevant the objective
medical evidence and supporting explanations presented by a medical source are to
support his or her medical opinion(s) or prior administrative medical finding(s), the
more persuasive the medical opinions or prior administrative medical finding(s) will
be.” 20 C.F.R. § 404.1520c(c)(1); 20 C.F.R. § 416.920c(c)(1). For consistency, the
revised rules provide: “The more consistent a medical opinion(s) or prior
administrative medical finding(s) is with the evidence from other medical sources
and nonmedical sources in the claim, the more persuasive the medical opinion(s) or
prior administrative medical finding(s) will be.” 20 C.F.R. § 404.1520c(c)(2); 20
C.F.R. § 416.920c(c)(2).
The new regulations also differentiate between medical opinions and “other
medical evidence.” 20 C.F.R. §§ 404.1513(a)(2)-(3), 416.913(a)(2)-(3). “A medical
opinion is a statement from a medical source about what you can still do despite your
impairment(s) and whether you have one or more impairment-related limitations or
restrictions” in the abilities listed in paragraphs (a)(2)(i) through (iv). 20 C.F.R.
§§ 404.1513(a)(2), 416.913(a)(2). “Other medical evidence is evidence from a
medical source that is not objective medical evidence or a medical opinion, including
judgments about the nature and severity of your impairments, your medical history,
clinical findings, diagnosis, treatment prescribed with response, or prognosis.” 20
C.F.R. §§ 404.1513(a)(3), 416.913(a)(3).

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Plaintiff contends that the ALJ did not properly evaluate the opinions of two
impartial medical experts, Yarledis Salcedo, M.D. and Howard Shapiro, M.D. by
failing to consider the supportability of these opinions. (Doc. 13, 14-17). The
Commissioner acknowledges that the ALJ “did not discuss supportability in any
detail” in evaluating Dr. Salcedo’s opinion, but “did point out Dr. Salcedo’s
contradictory statement about Plaintiff both meeting and not meet[ing] a listing.”
(Doc. 17, p. 13). As to Dr. Shapiro’s opinion, the Commissioner contends that the
ALJ considered supportability “by noting that the opinion noted diagnoses, [but] it
lacked strong internal support.” (Doc. 17, p. 14).
Even if these statements are construed as the ALJ’s analysis of the
supportability of Drs. Salcedo and Shapiro’s opinions – which is questionable – they
fail to provide the specificity needed to satisfy the regulations. To reiterate, both
consistency and supportability of an opinion are the two most important factors for
an ALJ to consider. 20 C.F.R. § 416.920c(c)(1). In considering supportability, an
ALJ must consider the relevant objective medical evidence, and the supporting
explanations provided by a medical provider to support his medical opinion. Id.
Beginning with Dr. Salcedo’s November 6, 2020 opinion, the ALJ
summarized Dr. Salcedo’s findings, including limitations that far exceed the RFC
assessment, such as the ability to sit and stand for up to three hours at a time. (Tr.

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30; 1259-68). In finding Dr. Salcedo’s opinion unpersuasive, the ALJ discussed how
the opinion:
is inconsistent with the overall evidence of record. Particularly,
physical examinations show mostly normal findings, such as
full range of motion in all major joints, no neurological, normal
heart and lung sounds, normal abdominal examination, normal
examination of all major organs and systems, and normal range
of daily activities (Exs. C9F/50, 51, and 68; C11F/9, 10, and
21; C18F/3; and C19F/5 and 6). Further, Dr. Salcedo’s opinion
is inconsistent with the findings of the physical consultative
examination (Ex. C3F/3-4). Further, Dr. Salcedo’s opinion is
inconsistent with the claimant’s own admissions of normal
daily activities (Ex. C7E).

(Tr. 30-31). The ALJ provided an explanation and citations to the record to explain
why she found Dr. Salcedo’s opinion inconsistent with other evidence of record.
Even so, the ALJ did not discuss whether Dr. Salcedo’s opinion was unsupported by
his explanatory notes in the opinion. The only possible statement by the ALJ as to
supportability is that Dr. Salcedo’s “contradictorily opined that the claimant both
met and did not meet a listing.” (Tr. 30). This statement alone is insufficient to find
this opinion unpersuasive on supportability grounds.
Likewise, the ALJ summarized Dr. Shapiro’s February 3, 2023 opinion that
included limitations that exceeded those found in the RFC assessment, such as
Plaintiff being able to sit for three hours in an eight-hour workday. (Tr. 29, 166370). The ALJ found Dr. Shapiro’s opinion:
was somewhat persuasive as it was consistent with some of the
objective medical evidence. The standing, walking, and sitting
limitations were not supported by the numerous normal

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physical examination findings, which included normal gait
(Exs. C3F; C9F/50, 51, and 68; C11F/9, 10, and 21; C18F/3;
and C19F/5 and 6). This opinion lacked strong internal support,
but it did note diagnoses, such as peripheral neuropathy (Ex.
C61F/5 and 6).

(Tr. 29). The only statement related to supportability was the generalization that Dr.
Shapiro’s opinion lacked strong internal support. (Tr. 29). Again, the ALJ did not
discuss with any specificity whether Dr. Shapiro’s explanations supported his
opinion on Plaintiff’s limitations. (Tr. 29).
By not discussing supportability in any meaningful manner, the ALJ failed to
provide sufficient reasoning for the Court to conduct a meaningful review and
determine whether substantial evidence supports the ALJ’s persuasiveness findings
for the opinions of both Drs. Salcedo and Shapiro. See Morrison v. Comm’r of Soc.
Sec., 660 F. App’x 829, 834 (11th Cir. 2016) (“The ALJ must state the grounds for
her decision with clarity to enable us to conduct meaningful review.”). Thus, remand
is warranted on this issue.
B.

Remaining Issue

Plaintiff also challenges whether the ALJ properly considered the opinions of
other medical providers and whether the ALJ properly considered Plaintiff’s
subjective statements. Rather than deciding these issues, because this action is
remanded on other grounds that may affect the remaining issues, on remand, the
Commissioner is directed to reconsider these issues as well.

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III.

Conclusion

For the reasons discussed above, the decision of the Commissioner is
REVERSED and REMANDED such that this action is remanded under sentence
four of 42 U.S.C. § 405(g) for the Commissioner to reconsider the persuasiveness of
the medical opinions and Plaintiff’s subjective statements. The Clerk of Court is
directed to enter judgment consistent with this opinion, terminate any motions and
deadlines, and afterward close the file.
DONE and ORDERED in Fort Myers, Florida on March 5, 2025.

Copies furnished to:
Counsel of Record
Unrepresented Parties

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