SCOTT v Commissioner of Social Security
Filing
33
ORDER granting 26 Plaintiff's Motion for Summary Judgment; and denying 29 Defendant's Motion for Summary Judgment. Signed by Ch. Magistrate Judge Andrea M. Simonton on 3/29/2018. (cmh)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 16-CIV-23604-SIMONTON
ERIC LEOTIS SCOTT,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner
of Social Security Administration,
Defendant.
________________________________________/
ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
This matter is before the Court on the cross-motions for summary judgment filed
by Plaintiff Eric Leotis Scott ("Plaintiff") and by Defendant Nancy A. Berryhill, Acting
Commissioner of Social Security Administration ("Defendant"), ECF Nos. [26] and [29].
The parties have consented to the exercise of jurisdiction by a United States Magistrate
Judge to conduct any and all proceedings in this case, ECF No. [23]. The summary
judgment motions are now ripe for disposition.
For the reasons stated below, the undersigned recommends that Plaintiff’s Motion
for Summary Judgment, ECF No. [26] be GRANTED, and Defendant’s Motion for
Summary Judgment, ECF No. [29] be DENIED.
I.
PROCEDURAL BACKGROUND
In August 1998, at the age of three, Plaintiff was found disabled based on an
application for Social Security Income. (R. 77). The Plaintiff turned 18 on March 14, 2012,
triggering the requirement that the Plaintiff’s eligibility for disability benefits be
redetermined under the rules for determining disability in adults. (R. 77). The agency
conducted a disability review, and on August 9, 2012, it was determined that Plaintiff’s
disability had ceased as of August 1, 2012, because he did not meet the adult
requirements for disability. (R. 77). Upon Plaintiff’s request for reconsideration, the
Commissioner’s disability hearing officer conducted a hearing on April 23, 2013. (R. 165169). A decision was issued on June 10, 2013, affirming the cessation of Plaintiff’s
disability benefits. (R. 179).
Thereafter, Plaintiff requested a hearing before an administrative law judge
(“ALJ”). (R. 77). A hearing was commenced on October 16, 2014, but the Plaintiff had
been unable to obtain counsel and requested a one-time postponement so that he could
do so. (R. 140). A hearing was held on February 6, 2015. (R. 93, 264). Plaintiff was
unrepresented, and signed a waiver of his right to representation. (R. 93). On March 16,
2015, the ALJ issued a decision finding that Plaintiff’s disability ended on August 1, 2012,
and that Plaintiff had not become disabled again since that date. (R. 77-85). The Plaintiff
requested a review of the ALJ’s decision, which was denied by the Appeals Council on
July 6, 2016, ECF No. [1] at 2.
Having exhausted all administrative remedies, the Plaintiff timely filed the pending
Complaint seeking judicial review of the administrative proceedings, ECF No. [1]. The
Plaintiff requests this Court to reverse for an award of benefits, or, in the alternative, the
Plaintiff requests this Court to remand this matter to the Commissioner for
reconsideration of the evidence, ECF No. [1] at 4.
II.
LEGAL ISSUES PRESENTED
In his Motion for Summary Judgment, the Plaintiff contends that the ALJ
committed errors which precluded the Plaintiff from obtaining benefits. The alleged
errors can be summarized as the Plaintiff alleging that the ALJ failed to properly assess
the medical evidence of record, failed to conduct a proper credibility assessment, and
failed to develop a full and fair record, ECF No. [26].
2
The Defendant contends in its Motion for Summary Judgment and Response to
Plaintiff’s Motion for Summary Judgment that substantial evidence supports the ALJ’s
assessment of Plaintiff’s symptoms, any error by the ALJ in failing to address a medical
source opinion was harmless, substantial evidence supports the ALJ’s Step Five finding,
and the ALJ fully and fairly developed the record, ECF No. [29].
III.
STANDARD OF REVIEW
Judicial review of the ALJ’s decision in disability cases is limited to determining
whether the record contains substantial evidence to support the ALJ’s factual findings
and whether the correct legal standards were applied. 42 U.S.C. § 405(g); Richardson v.
Perales, 402 U.S. 389, 401, (1971); Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158
(11th Cir. 2004); Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990). “Substantial
evidence” is more than a scintilla, but less than preponderance and is generally defined
as such relevant evidence which a reasonable mind would accept as adequate to support
a conclusion. Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997); Bloodworth v.
Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983).
When reviewing the evidence, the Court may not reweigh evidence or substitute
its judgment for that of the ALJ, and even if the evidence “preponderates” against the
Commissioner’s decision, the reviewing court must affirm if the decision is supported by
substantial evidence. Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991); Baker v.
Sullivan, 880 F.2d 319, 321 (11th Cir. 1989). This restrictive standard of review, however,
applies only to findings of fact. No presumption of validity attaches to the
Commissioner’s conclusions of law, which are reviewed de novo, including the
determination of the proper standard to be applied in reviewing claims. Cornelius v.
Sullivan, 936 F.2d 1143, 1145-46 (11th Cir. 1991) (“The Commissioner’s failure to apply
the correct law or to provide the reviewing court with sufficient reasoning for
3
determining that the proper legal analysis has been conducted mandates reversal.”);
Martin v. Sullivan, 894 F.2d at 1529.
IV.
FRAMEWORK FOR ANALYSIS
Section 1614(a)(3)(H) of the Social Security Act of 1935 (the “Act”) provides that
individuals who are eligible for supplemental security income benefits under the age of
eighteen must have their disability redetermined at age 18 under the rules for disability
used for adults. Demps v. Astrue, No. 3-10-cv-621-J-12MCR, 2011 WL 4530843, at *3
(M.D. Fla. Aug. 2, 2011), report and recommendation adopted, No. 3:10-cv-621-J-12MCR,
2011 WL 4549603 (M.D. Fla. Sept. 29, 2011). Additionally, the Act provides that the
medical improvements review standard in section 1614(a)(4) does not apply to disability
redeterminations at age 18. Id. Instead, the definition of disability that must be applied is
the definition used for adults who file new applications for supplemental security income
benefits based on disability. Id.
Under this standard, the Social Security Administration applies a five-step
sequential analysis to make a disability determination. 20 C.F.R. § 416.920(a)(4). 1 The
analysis follows each step in order, and the analysis ceases if at a certain step the ALJ is
able to determine, based on the applicable criteria, either that the claimant is disabled or
that the claimant is not disabled.
A. Step One
Step one is a determination of whether the claimant is engaging in substantial
gainful activity. 20 C.F.R. § 416.920(b). “Substantial work activity” is work activity that
involves doing significant physical or mental activities. 20 C.F.R. § 416.972(a). “Gainful
work activity” is work that is usually done for pay or profit, whether or not a profit is
1
The regulations in effect at the time of the ALJ’s decision have been used throughout
the parties’ briefs and in this Report and Recommendation. The undersigned notes,
however, that effective January 17, 2017, the regulations with respect to the evaluation of
mental illness were revised. 81 Fed. Reg. 66138-01, 2016 WL 5341732 (Sept. 26, 2016).
4
realized. 20 C.F.R. § 416.972(b). If an individual has earnings from employment or selfemployment above a specific level set out in the regulations, it is presumed that he has
demonstrated the ability to engage in substantial gainful activity. 20 C.F.R. §§ 416.974,
416.975. If an individual has been participating in substantial gainful activity, he will not
be considered disabled, regardless of physical or mental impairment, despite the
severity of symptoms, age, education, and work experience. The analysis proceeds to
step two if the individual is not engaging in substantial gainful activity.
In the case at bar, there was no step one determination because it is not used
when redetermining disability at age 18. See 20 CFR 416.987(b).
B. Step Two
At the second step, the claimant must establish that he has a severe impairment.
Step two has been described as the “filter” which requires the denial of any disability
claim where no severe impairment or combination of impairments is present. Jamison v.
Bowen, 814 F.2d 585, 588 (11th Cir. 1987). This step has also been recognized as a
“screening” to eliminate groundless claims. Stratton v. Bowen, 827 F.2d 1447, 1452 (11th
Cir. 1987). The ALJ makes a severity determination regarding a classification of the
claimant's medically determinable impairment or combination of impairments. 20 C.F.R.
§ 416.920(c). To be severe, an impairment or combination of impairments must
significantly limit an individual’s physical or mental ability to perform basic work
activities. 20 C.F.R. § 416.921(a). An impairment or combination of impairments is "not
severe" when medical and other evidence establish only a slight abnormality or a
combination of slight abnormalities that would have no more than a minimal effect on an
individual's ability to work. 20 C.F.R. § 416.921; Social Security Rulings (SSRs) 85-28, 963p, and 96-4p.
In sum, an impairment or combination of impairments is considered to be not
severe if it does not significantly limit a claimant's physical or mental ability to do basic
5
work activities. 20 C.F.R. § 416.921(a). Basic work activities are the abilities and
aptitudes necessary to do most jobs. These include: (1) physical functions such as
walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling; (2)
capacities for seeing, hearing, and speaking; (3) understanding, carrying out, and
remembering simple instructions; (4) use of judgment; (5) responding appropriately to
supervision, co-workers and usual work situations; and (6) dealing with changes in a
routine work setting. C.F.R. § 416.921(b).
The evaluation of the severity of mental impairments is governed by 20 C.F.R. §
416.920(a). This regulation sets forth a special technique to be used to determine
whether a mental impairment is severe at step two. Specifically, the ALJ is required to
rate the degree of limitation in four functional areas: activities of daily living; social
functioning; concentration, persistence, or pace; and, episodes of decompensation. 20
C.F.R. § 416.920a(c)(3). A five-point scale is used to rate the degree of limitation in the
first three areas: none, mild, moderate, marked, and extreme. The last area, episodes of
decompensation, is rated on a four-point scale: none, one, two, three, and four or more.
20 C.F.R. § 416.920a(c)(4). If the degree of limitation in the first three areas is “none” or
“mild” and the fourth area is “none,” the impairment is generally considered “not severe,
unless the evidence otherwise indicates that there is more than a minimal limitation” in
the ability to do basic work activities. 20 C.F.R § 416.920a(d)(1).
If the claimant does not have a severe medically determinable impairment or
combination of impairments, he is not disabled and the analysis ends here. If the ALJ
finds that the claimant has a severe medically determinable impairment or combination
of impairments, the process advances to the third step.
In the case at bar, the ALJ found that Plaintiff had the severe impairments of
learning disorder, schizoaffective disorder depressed type with psychosis, mood
6
disorder, and bipolar disorder. (R. 79). Because the ALJ found at least one severe
impairment, the ALJ then proceeded to the next step.
C. Step Three
The third step requires the ALJ to consider if Plaintiff’s impairment or
combination of impairments is at the level of severity to either meet or medically equal
the criteria of an impairment listed in 20 C.F.R. pt. 404, subpt. P, app. 1 ("the Listings"). A
claimant is considered to be disabled if his impairment or combination of impairments: 1)
is severe enough to meet or to medically equal the criteria of a listing; and 2) meets the
duration requirement under 20 C.F.R. § 416.909. If the claimant's impairment or
combination of impairments does not meet the criteria specified in the Listings, then the
ALJ must proceed to the fourth step.
In the case at bar, the ALJ found that the Plaintiff did not have an impairment or
combination of impairments that met or medically equaled the severity of one of the
listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 79). In reaching this
conclusion, the ALJ considered the criteria of listings 12.02, 12.03, and 12.04 and
considered whether the “paragraph B” criteria were satisfied. (R. 79). With respect to
these criteria, the ALJ found that the Plaintiff had mild restrictions in activities of daily
living, moderate difficulties in social function, and moderate difficulties as related to
concentration, persistence or pace. (R. 29). As for episodes of decompensation, the ALJ
found that the Plaintiff had not experienced any episodes of decompensation of
extended duration. (R. 80). The ALJ noted that record “is devoid any [sic] evidence of
inpatient hospitalizations for an exacerbation of any mental symptoms at any time
pertinent to this decision.” (R. 80). The ALJ also considered whether the “paragraph C”
criteria were satisfied, and determined that the record was devoid of repeated episodes
of decompensation, potential episodes of decompensation or the inability to function
7
outside a highly supportive living arrangement or outside the area of the claimant’s
home. (R. 80-81). The analysis then proceeded to step four.
D. Step Four
Step four is a two-pronged analysis that involves a determination of whether the
impairments prevent the claimant from performing his past relevant work. First, the ALJ
must determine the claimant’s Residual Functional Capacity (“RFC”) as described in 20
C.F.R. § 416.920(e). 2 RFC measures a person’s ability to do physical and mental work
activities on a sustained basis despite limitations caused by their impairments. In
making this determination, the ALJ must consider all of the claimant’s impairments,
regardless of the level of severity. 20 C.F.R. §§ 416.920(e), 416.945; SSR 96-8p;
Tuggerson-Brown v. Comm’r of Soc. Sec., No. 13-14168, 2014 WL 3643790, at *2 (11th Cir.
Jul. 24, 2014) (an ALJ is required to consider all impairments, regardless of severity, in
conjunction with one another in performing the latter steps of the sequential evaluation).
In the case at bar, the ALJ found that the Plaintiff had the RFC to perform a full
range of work at all exertional levels but with the following non-exertional limitations:
“the claimant would be limited to performing simple, routine, and repetitive tasks.” (R.
83). The ALJ found that, “the claimant’s medically determinable impairments could
reasonably be expected to cause the alleged symptoms; however, the claimant’s
statements concerning the intensity, persistence, and limiting effects of those symptoms
are not entirely credible.”
After determining a claimant’s RFC, the step four analysis requires a
determination of whether a claimant has the RFC to perform the requirements of his past
relevant work. 20 C.F.R. § 416.965. In the case at bar, the ALJ determined that Plaintiff
had no past relevant work. (R. 84).
2
Since the RFC is used at both step four and step five, this determination may also be
characterized as an independent determination made between step three and step four.
8
Because the Plaintiff did not have any past relevant work, the ALJ proceed to step
five.
E. Step Five
If the claimant is not able to perform his past relevant work, the ALJ progresses to
the fifth step. At this step, the burden of production shifts to the Commissioner to show
that other work that the claimant can perform exists in significant numbers in the
national economy. Jones v. Apfel, 190 F.3d 1224, 128 (11th Cir. 1999); 20 C.F.R. §
416.912(g) and 416.960(c). In making this determination, the ALJ considers a claimant’s
RFC as determined in connection with step four, as well as the claimant’s age, education,
and work experience to determine if he can perform any other work.
Based upon the testimony of the vocational expert (“VE”) the ALJ found that the
Plaintiff could perform work as a landscape laborer, cleaner, and laundry worker. (R. 36).
V.
PLAINTIFF'S BACKGROUND
A. Background
At the time of his hearing, the Plaintiff was a 20 year-old man. (R. 81). The
Plaintiff has a history of learning disorder; schizoaffective disorder, depressed type with
psychosis; mood disorder; and bipolar disorder. (R. 81). The Plaintiff received
childhood disability benefits based upon having met the childhood listing for organic
mental disorders under 112.02 (A)(B). (R. 82.). The Plaintiff attended school through the
eleventh grade, attending a combination of general and exceptional education classes,
(R. 83), but did not graduate or receive any equivalent degree. (R. 99-100). At the time of
his hearing, the Plaintiff was no longer enrolled in high school. (R. 99-100). The Plaintiff
resides with his father. (R. 120). The Plaintiff testified that he is not and has never been
employed. (R. 101-02).
9
On February 23, 2013, Patricia Scott, the Plaintiff’s mother, completed a Function
Report regarding the Plaintiff. (R. 379). 3 Ms. Scott has known the Plaintiff all his life and
they lived together at the time she completed the report. (R. 379). Ms. Scott described
the Plaintiff’s daily routine as consisting of going to school, coming home, eating, going
to his room, and listening to music or playing video games. (R. 380). She reported that
the Plaintiff did not care for or assist with the care of anyone other than himself or any
pets or other animals, but was able to take care of his own personal care and
medications and did not need any reminders. (R. 380-81). The Plaintiff did not know how
to cook and could not prepare his own meals, but he was able to clean his room and do
yard work, though very slowly. (R. 381-82). The Plaintiff was able to go out alone on a
daily basis, travelling by foot. (R. 382). He was able to shop for “video games, clothes,
junk food” and he did so “three times a month;” it “takes hours.” (R. 382). The Plaintiff
did not pay bills, have his own bank accounts, or use checkbooks or money orders, but
he was able to count change. (R. 382). Ms. Scott reported that the Plaintiff’s disability
affected his concentration, understanding, following instructions, and getting along with
others and that he “has [an] attitude problem with me and everyone else.” (R. 384). The
Plaintiff follows written instructions very poorly and spoken instructions “somewhat ok,”
handles stress poorly, and his response to changes in his routine was unknown because
he does the same thing every day. (R. 384-85). The Plaintiff did not take any medications
at that time. (R. 386).
B. Medical History
On June 20, 2002, Dr. Jack R. Weitz conducted a Learning Disabilities Evaluation
of the Plaintiff. (R. 544). The Plaintiff was eight years old at the time of this evaluation.
(R. 544). Dr. Weitz was unable to provide a diagnosis of the Plaintiff’s intellectual ability
3
Ms. Scott also completed a Function Report on June 7, 2012. (R. 298-308). The answers
therein are consistent with those provided in the more recent Function Report, so a
duplicative recitation has been omitted.
10
or the presence of a learning disability due to the Plaintiff’s failure to complete all the
testing tasks. Dr. Weitz did, however, diagnose the Plaintiff with dysthymia, or persistent
depressive disorder, noting that the Plaintiff had displayed feelings of inadequacy and
low self-esteem. (R. 545). Dr. Weitz recommended mental health treatment for the
Plaintiff and that his ability to manage his own benefits should be reevaluated upon
reaching adulthood. (R. 545).
On July 24, 2012, Dr. Angela C. Brinson, Licensed School Psychologist,
conducted a psychological evaluation of Plaintiff to aid in the determination of this case.
(R. 565). At the time of this evaluation, the Plaintiff was 18 years of age. (R. 565). The
Plaintiff arrived on-time and was appropriately groomed and attired. (R. 565). The
Plaintiff was accompanied to the session by his maternal aunt, Patricia Ferguson. (R.
565). Dr. Brinson noted that “[the Plaintiff]’s level of attention and concentration were
appropriate.” (R. 566). On the Wechsler Adult Intelligence Scale (WAIS-IV) test to assess
intellectual functioning, Dr. Brinson concluded the Plaintiff is functioning “in the
Borderline range of intellectual ability relative to his same age peers.” (R. 566).
Specifically assessing the Plaintiff’s working memory abilities, which involve “attention,
concentration, mental control, and reasoning,” Dr. Brinson concluded that the Plaintiff’s
working memory skills are in the low average range. (R. 566). Dr. Brinson also
administered the WJ-III to assess the Plaintiff’s current level of academic achievement,
and concluded the Plaintiff was functioning in the “low average to deficient range of
academic achievement,” scoring on a 5th grade level for Broad Reading, and on a sixth
grade level for Broad Mathematics. Dr. Brinson ultimately concluded that the Plaintiff’s
cognitive abilities are consistent with a learning disorder. (R. 569).
On August 8, 2012, Alicia Maki, Ph.D., completed a Form 2506 psychiatric review
of the Plaintiff. (R. 584). Dr. Maki noted that the Plaintiff has “[n]o past [history] of
mental health [treatment] nor [history] of psych hospitalizations.” (R. 584). Dr. Maki
11
concluded that the Plaintiff’s statements as to his disability were partially credible,
because the “alleged impairments are supported by MER. 4 (R. 584). However,
functional/adaptive capacity is not affected as suggested.” (R. 584).
On September 7, 2012, the Plaintiff was referred by his high school for an
evaluation with Dr. Sean Haven in connection with behavioral issues he was having at
school. (R. 82, 591). The Plaintiff reported he was getting into fights at school, usually
triggered by other students making fun of his appearance, but sometimes because he
makes fun of other students. (R. 591). The Plaintiff denied feeling depressed or anxious
and stated he was sleeping enough and was not experiencing hallucinations. (R. 591).
However, the Plaintiff reported that in the past he used to see “shadows that would
change form.” (R. 591). The Plaintiff indicated to Dr. Haven that he wanted to be
“extreme” – pursuing such activities as sky-diving and shark diving. (R. 591). Dr. Haven
noted at this time that the Plaintiff had no past psychiatric history or past psychiatric
medications. (R. 591). Dr. Haven diagnosed the Plaintiff with a mood disorder and
explained: “P[atien]t refused medication this session. Will come back in 1 mo[nth]. To
re-evaluate need for treatment.” (R. 593).
On March 8, 2013, Catherine Nunez, Ph.D., completed a Form 2506 psychiatric
review of the Plaintiff. (R. 613). Dr. Nunez noted that the Plaintiff is diagnosed with a
mood disorder but has refused to be compliant with [treatment].” (R. 625). Dr. Nunez
concluded that “[c]laimant is considered credible in his report of [symptoms]. . . .
General functioning is consistent with the ability to complete simple tasks. There is no
MSO in the file. Based on the MER, claimant can complete SRTs in a work setting and
does not meet listing severity.” (R. 625).
On August 9, 2013, Dr. Poitier of New Horizons Community Mental Health Center,
Inc. completed a Psychiatric Evaluation of the Plaintiff. (R. 641). Dr. Poitier reported that
4
The acronym “MER” stands for medical evidence of record.
12
the Plaintiff’s chief complaint is that “I see myself as a future God.” Dr. Poitier reported
that the Plaintiff denied any past psychiatric history of hospitalizations of family history.
(R. 641). Dr. Poitier diagnosed the Plaintiff with psychiatric disorder, unspecified. (R.
643). Dr. Poitier’s treatment notes include a medication profile which provides that from
August 9, 2013 to November 20, 2013, Dr. Poitier prescribed four different drugs to treat
the Plaintiffs mental health issues. (R. 635). A form providing “Claimant’s Medications”
was also submitted by or on behalf of the Plaintiff on April 23, 2014. (R. 473). It reflects
that at that time the Plaintiff was prescribed Citalopram, Benztropine, Diphenhydramine,
and Risperdal by Dr. Joseph Poitier at the New Horizon Clinic. (R. 473).
On October 15, 2014, Patricia Ares-Romero, Medical Director of the Psychosocial
Rehabilitation Program at Jackson Behavioral Health Hospital, submitted a one-page
letter identifying the Plaintiff as a patient in the hospital’s Psychosocial Rehabilitation
Program with a working diagnosis of Schizoaffective disorder, depressed type. (R. 631).
Dr. Ares-Romero stated that the Plaintiff is being prescribed Celexa to target his
depressive symptoms, Haldol Decanoate to target his psychosis, and Cogentin for side
effects from the psychotropics. (R. 631). Dr. Ares-Romero closed her submission with a
request that the Social Security Administration “[p]lease advise if you require any further
information.” (R. 631).
On February 2, 2015, Dr. Luis Chaves 5 at 1660 NW 7th Court, Miami, FL 33136
completed a Psychiatric and Psychosocial Evaluation of the Plaintiff. (R. 658).
Importantly, though the Plaintiff testified at the hearing that he had never met with Dr.
Chaves prior to the day of the evaluation, Dr. Chaves’ opinion noted that the Plaintiff has
been treated within “this program since [March 25, 2014].” (R. at 658). Dr. Chaves
diagnosed the Plaintiff with schizophrenia, chronic paranoid type and depressive
5
The parties erroneously refer to Dr. Chaves as “Dr. Caves.”
13
disorder, not otherwise specified. (R. at 658). Dr. Chaves specified that the Plaintiff had
flat affect and depressed mood, described a history of auditory hallucinations, and that
the Plaintiff was currently reporting intermittent hallucinations consisting of voices
calling his name. (R. 658). Dr. Chaves’ opinion stated that the Plaintiff was treated “one
to two times per month for 30 minutes at a time. [Patient] is currently in the PSR, 6 he is
attending activities daily.” (R. 658). Dr. Chaves’ opinion stated that the Plaintiff was
prescribed Haldol Decanoate, Cogentin, and citalopram. (R. at 659). Dr. Chaves opined
that the Plaintiff’s impairments would cause him to be absent from work an average of
more than four days per month. (R. 660). Dr. Chaves opined that the Plaintiff had
marked limitations in maintaining social functioning and concentration, persistence, or
pace resulting in frequent failure to complete tasks in a timely manner. (R. 660). Dr.
Chaves opined that the Plaintiff would experience four or more episodes of deterioration
or decompensation, of extended duration. (R. 661). Dr. Chaves reported that “[Patient]
had a psychiatric hospitalization on March 7, 2014 secondary to mood symptoms. He
also had a psychiatric hospitalization on [July 25, 2014] secondary to paranoid ideation,
threatening his family, self-neglect, wandering at night.” (R. 663).
The record also contains a “Claimant’s Recent Medical Treatment” document that
appears to have been completed by someone on behalf of the Plaintiff, which states that
he received medical treatment from Dr. Molly Ryan at 1660 NW 7th Court, Miami, FL 33136
6
The undersigned believes that “this program” is a reference to the Psychosocial
Rehabilitation Program at Jackson Memorial Hospital. In her submission, dated October
15, 2014, Dr. Patricia Ares-Romero, the Medical Director for the Psychosocial
Rehabilitation program identified the Plaintiff as a patient in the program and identified
the same medications prescribed to the Plaintiff as those identified by Dr. Chaves,
though Dr. Ares-Romero used the brand name Celexa rather than the generic name
citalopram. (R. 631, 659). Additionally, the address provided for Dr. Chaves corresponds
to the Jackson Memorial Hospital Highland Pavilion.
14
and provides a date of March 25, 2014. 7 (R. 472). With regard to the Plaintiff’s condition,
the document states “[the Plaintiff] has been going in and out of Dade County Jail. Two
different occasions and while there he was put in the mental hosp[ital].” (R. 472). The
form further indicates that since July 17, 2013, the Plaintiff was hospitalized at Jackson
Memorial Hospital for depression and received treatment in the form of prescriptions for
Celexa and Risperidone. (R. 472). The document is marked as received by the Social
Security Administration on April 23, 2014.
C. Hearing Testimony
1. Plaintiff’s Testimony
The Plaintiff appeared at hearings before the ALJ on October 16, 2014, and
February 6, 2015, in Miami, Florida. The Plaintiff was not represented by counsel at
either hearing. Plaintiff was unrepresented at the first hearing and elected to postpone
the hearing in order to allow him to obtain counsel. (R. 139). The Plaintiff appeared
before the same ALJ again on February 6, 2015. When asked why he still had not
obtained counsel, Plaintiff stated that “[w]e weren’t able to get one yet,” but was not able
to provide any additional information regarding why no counsel was retained because
the Plaintiff “just left it all to my mom.” (R. 93-94). Plaintiff also could not explain what
prevented him from continuing to work towards his high school diploma, finally
suggesting the decision had been up to his mother – “she didn’t never put me back in
school. I never went back.” (R. 101).
The Plaintiff testified that he thought he could work full-time, and that he has
looked for a job from time to time, but that no one would hire him. (R. 102). The Plaintiff
had looked for jobs selling videogames, as that is a subject about which he knew some
7
The undersigned notes that the addresses provided for Drs. Ryan and Chaves are
identical and correspond to the Jackson Memorial Hospital Highland Pavilion. (R. 472,
658). Additionally, the date associated with Dr. Ryan’s treatment of the Plaintiff is the
same as the date on which Dr. Chaves reports that the Plaintiff joined the Psychosocial
Rehabilitation Program. (R. 472, 658).
15
information. (R. 102-03). The Plaintiff used to play videogames online but no longer had
a Playstation. The Playstation was no longer in his house when he got out of jail; “I
guess it broke. I don’t know.” (R. 104). The Plaintiff was in jail for two months
“[b]ecause I got jumped, and I got a gun, and I started firing at the boys that jumped me.”
(R. 104). The Plaintiff is not licensed to own a weapon and the gun was not his own. (R.
104).
When asked about his learning disability, the Plaintiff stated that it still affected
him and that “it’s just hard to concentrate basically just on anything.” (R. 106). The
Plaintiff testified that he was taking medications and the ALJ confirmed that the Plaintiff
had correctly named three out of four of the medications he was currently prescribed,
forgetting the name of the fourth. (R. 106). When asked how his learning disability
prevented him from working, the Plaintiff responded “I don’t—I don’t – I’m not sure that it
does.” (R. 106).
When asked how his schizophrenia affected his ability to work, the Plaintiff
expressed confusion, stating “I don’t know what it means.” (R. 107). The ALJ then
concluded, “[s]o as far as you know, schizophrenia doesn’t impact you at all,” to which
the Plaintiff replied “Not that I know of.” (R. 107). The Plaintiff testified that he has seen
demons and other things since he was a child; the demons don’t do anything other than
frighten the Plaintiff. (R. 108). The Plaintiff still sees things about once a month, usually
when he wakes up in the middle of the night, and he is unable to move from the fear and
feels vibrations through his body for a few minutes when he sees the thing. (R. 110).
Due to his medication, however, he does not have the same frequency of visual
hallucinations that he did as a child. (R. 111).
Plaintiff could not remember anything about his psychosis, though he indicated
that he had been told about it previously. (R. 111). When asked how he thought it might
affect him, he replied that he was “trying to remember what it is.” (R. 111). When asked
16
about specific delusions, he stated that he thought he was a prophet and had been
“having visions and stuff” since “I wanted to kill myself” and “they kind of locked me up.
But instead of them locking me up, they took me to crisis.” (R. 111-12). The Plaintiff was
unable to precisely describe what it meant to be a prophet and/or the religious
significance, stating “I just see the good side. That’s all” and “It’s just the information I
do be given, if I am given it from – it’s like – I’m not sure if it’s bad or good.” (R. 113).
The Plaintiff testified regarding his involvement with “the program” “at Jackson”
in Highland Park, which he described as “like a recovery program for us.” (R. 115).
Plaintiff testified the program was for both drug addicts and people with illnesses. (R.
116). Plaintiff testified that he attended the program daily, taking three buses each way,
from 5 a.m. to around noon. (R. 116-17). Plaintiff testified that he was not required to
attend, but that “I just go to the program because I feel as though I still need it.” (R. 117).
The Plaintiff testified that his depression and schizoaffective disorder make him
want to kill himself and that he has previously attempted to take his life. (R. 117-18). He
stated that he consumed more than the recommended dosage of his prescribed
medications a few weeks prior but that nothing really happened. (R. 118).
When asked why Plaintiff believed that he was disabled such that he could not
work a full-time job, Plaintiff responded that he believed he could work full-time and that
he would take a job if he was offered one. (R. 119).
Plaintiff did not know how much income he received each month; he received all
of his money from his mother. (R. 120). Plaintiff could not estimate the amount of money
he received from his mother on a monthly basis, saying “It could be anything. It could be
$20 to a couple dollars, anything like that.” (R. 121).
The Plaintiff testified that the last book he read was the Bible, specifically
Revelations, and that his favorite part of the Bible is the ending, “when we all get to see
God’s face.” (R. 124).
17
2. Vocational Expert Testimony
Lisa Gaudi testified as an impartial Vocational Expert. (R. 125). The Plaintiff has
no past work experience, so the testimony concerned only whether there were jobs in the
national economy that the Plaintiff could perform based on the Plaintiff’s RFC, as
described in the hypotheticals posed by the ALJ. The ALJ presented four hypotheticals
to the VE. First, the ALJ posed the following question:
I’d like to have you assume an individual of the same age, education, and
past work experience as the claimant possessing the residual functional
capacity to perform work at all exertional levels except work is limited to
simple, routine, and repetitive tasks. Would an individual with these
limitations be able to perform any work in either the local or national
economy?
(R. 126). The VE responded that the full range of unskilled work would be suitable in this
case, and provided the specific examples of landscape laborer, commercial cleaner, and
kitchen helper. (R. 126-27).
The ALJ then presented the following hypothetical:
“[A]ssume all of the limitations as above. And add this person’s mental
capabilities include understanding, remembering, and carrying out simple
instructions; making judgments that are commensurate with the functions
of unskilled work; responding appropriately to supervision, coworkers, and
unusual work situations; and dealing with changes in a routine work
setting. Are there jobs in either the local or national economy that such an
individual could perform?
The VE responded that the previously identified work would still be suitable. (R. 127).
The ALJ then presented the following hypothetical:
[A]ssume all of the limitations as above in hypotheticals one and two, and
add work can be around coworkers throughout the day but with only
occasional interaction with them. Are there jobs in either the local or
national economy that such an individual could perform?
The VE responded that the previously identified work would still be suitable. (R. 128).
The ALJ then presented the following hypothetical:
[A]ssume all of the same limitations as above and add due to mental
deficits, this person cannot sustain sufficient concentration, persistence,
or pace for an eight-hour day work schedule. Would an individual with
18
these limitations be able to perform any work in either the local or national
economy?
The VE responded that such an individual would not be able to perform any work in
either the local or national economy. (R. 128).
VI.
LEGAL ANALYSIS
A. The Opinion Evidence of Record
1. The Framework for Analyzing Medical Opinions
The Plaintiff argues that the ALJ failed to properly asses the opinion evidence of
record. Specifically, the Plaintiff argues that the ALJ erred by failing to consider the
medical opinions of Drs. Chaves, Ryan, Poitier, and Weitz, ECF No. [26] at 8, 13. An ALJ
is required to consider and explain the weight given to different medical doctors such as
treating, examining, and consulting physicians. See Martinez v. Acting Comm’r of Soc.
Sec., No. 15-14798, 2016 WL 4474675 at *2 (11th Cir. Aug. 25, 2016). The Social Security
regulations provide guidelines for the ALJ to use when evaluating medical opinion
evidence. See 20 C.F.R. § 404.1527. The ALJ considers many factors when weighing
such evidence, including the examining relationship, the treatment relationship, whether
an opinion is well-supported, whether an opinion is consistent with the record, and the
area of a doctor's specialization. Id. § 404.1527(d). Generally, the medical opinions of
professionals who provided treatment are given more weight than the opinions of those
who only examined a claimant because “[treating] sources are likely to be the medical
professionals most able to provide a detailed, longitudinal picture of [the claimant's]
medical impairment(s).” Id. § 404.1527(d)(2). With good cause, an ALJ may disregard a
treating physician's opinion, but he must clearly articulate his reasons for doing
so. Phillips, 357 F.3d at 1240–41. Moreover, the ALJ must state with particularity the
weight given to different medical opinions and the reasons therefor. Sharfarz v.
Bowen, 825 F.2d 278, 279 (11th Cir.1987). A statement that the ALJ carefully considered
19
all the testimony and exhibits is not sufficient. Cowart v. Schweiker, 662 F.2d 731, 735
(11th Cir.1981). Without an explanation of the weight accorded by the ALJ, it is
impossible for a reviewing court to determine whether the ultimate decision on the merits
of the claim is rational and supported by substantial evidence. Id. Therefore, when the
ALJ fails to state with at least some measure of clarity the grounds for his decision, the
court cannot affirm simply because some rationale might have supported the ALJ's
conclusion. Owens v. Heckler, 748 F.2d 1511, 1516 (11th Cir.1984).
In Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178-79 (11th Cir. 2011), the
Eleventh Circuit Court of Appeals concisely set forth the following guidelines to apply in
evaluating an ALJ’s treatment of medical opinions:
Absent “good cause,” an ALJ is to give the medical opinions of treating
physician’s substantial or considerable weight. Good cause 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.
With good cause, an ALJ may disregard a treating physician’s opinion, but
he must clearly articulate the reasons for doing so.
Moreover, the ALJ must state with particularity the weight given to different
medical opinions and the reasons therefore. In the absence of such a
statement, it is impossible for a reviewing court to determine whether the
ultimate decision on the merits of the claim is rational and supported by
substantial evidence. Therefore, when the ALJ fails to state with at least
some measure of clarity the grounds for his decision, we will decline to
affirm simply because some rationale might have supported the ALJ’s
conclusion.
(internal quotation marks and citations omitted). In Winschel, the decision of the ALJ
was reversed because the only reference to the treating physician noted that the
claimant had seen the doctor monthly, but did not even mention the doctor’s medical
opinion. In addition, the ALJ failed to discuss the pertinent elements of an examining
physician’s medical opinion. The Court noted that it was possible that the ALJ had
considered and rejected those opinions, but without clearly articulated reasons, the
Court could not determine whether the ALJ’s conclusions were supported by substantial
20
evidence. 631 F.3d at 1179. Similarly, the ALJ’s rejection of a treating physician’s
opinion was error requiring remand where the ALJ had failed to reference the opinions in
his decision and had merely noted that the claimant had been treated by the physicians,
Miller v. Barnhart, 182 F. App'x 959, 964 (11th Cir. 2006); and, where the reasons given for
according no weight to the opinion – that the opinion was internally inconsistent and at
odds with other evidence in the record – was not supported by substantial evidence,
MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986).
On the other hand, in Rosario v. Comm’r of Soc. Sec., 490 F. App'x 192, 194-95
(11th Cir. 2012), the Eleventh Circuit found that the ALJ had not erred in giving little
weight to the opinions of the claimant’s treating psychiatrist, where the ALJ indicated
she had done so “because they were inconsistent with [the doctor’s] own findings, notes
from the treatment plan, and the overall medical evidence,” and the decision noted one
example from the medical records. 490 F. App'x at 194-95. Accord Phillips v. Barnhart,
357 F.3d 1232, 1240-41 (11th Cir. 2004) (ALJ’s rejection of treating physician’s opinion
was supported by substantial evidence where ALJ cited examples of inconsistencies
with treatment notes and claimant’s own admissions of what she could do).
In sum, if the ALJ fails to give at least great weight to the opinion of a treating
physician, he or she must provide a sufficiently detailed analysis with examples to
demonstrate why that opinion is discounted, and provide a rationale that will enable a
reviewing court to determine whether the ultimate decision on the merits of the claim is
rational and supported by substantial evidence.
a. Dr. Chaves’ Opinion
The Plaintiff asserts that the ALJ erred by failing to consider, or even mention, the
Plaintiff’s treating psychiatrist’s (Dr. Chaves’) opinion in its entirety, according
inadequate weight to the opinions expressed by the treating psychiatrist, and repeatedly
omitting clinically significant findings contained in the treating psychiatrist’s treatment
21
notes, ECF No. [26] at 8-12. As an initial matter, Defendant contests the assertion that Dr.
Chaves was the Plaintiff’s treating physician, ECF No. [29] at 13. Defendant further
argues that any error by the ALJ in not specifically addressing Dr. Chaves’ opinion was
harmless, ECF No. [29] at 12-16. Defendant additionally argues that (1) Dr. Chaves failed
to provide objective evidence to support his opinion or an explanation for his conclusion
that Plaintiff had marked limitations; (2) Dr. Chaves’ opinion is inconsistent with the
objective medical evidence; (3) Dr. Chaves’ opinion is so patently deficient that the ALJ
could not have given any weight to it without violating the requirement that substantial
evidence support her decision, ECF No. [29] at 13-14.
The ALJ’s report notes that “[a]dditional evidence was submitted at the hearing
and subsequently reviewed (Exhibits 15F, 16F).” Other than this reference to Dr. Chaves’
report, which was marked as Exhibit 16F within the record, the ALJ does not reference or
mention the Chaves report or its content, nor does she assign a weight to his opinion
regarding the Plaintiff’s diagnosis and limitations.
The parties dispute whether Dr. Chaves’ report is entitled to the weight accorded
to a treating physician. The Social Security Regulations provide the following guidelines
for evaluating whether a particular medical source is a treating source:
Treating source means your own acceptable medical source who
provides you, or has provided you, with medical treatment or evaluation
and who has, or has had, an ongoing treatment relationship with you.
Generally, we will consider that you have an ongoing treatment relationship
with an acceptable medical source when the medical evidence establishes
that you see, or have seen, the source with a frequency consistent with
accepted medical practice for the type of treatment and/or evaluation
required for your medical condition(s). We may consider an acceptable
medical source who has treated or evaluated you only a few times or only
after long intervals (e.g., twice a year) to be your treating source if the
nature and frequency of the treatment or evaluation is typical
for your condition(s). We will not consider an acceptable medical source to
be your treating source if your relationship with the source is not based
on your medical need for treatment or evaluation, but solely on your need
to obtain a report in support of your claim for disability. In such a case, we
will consider the acceptable medical source to be a nontreating source.
22
20 C.F.R. 404.1527(a) (2).
Based on the undersigned’s review of the record, Dr. Chaves’ opinion was entitled
to the weight accorded to a treating physician. Although the Plaintiff testified at the
hearing that he saw Dr. Chaves for the first time on the day that Dr. Chaves completed
his evaluation, (R. 95-96), there is significant evidence in the record that supports the
Plaintiff’s ongoing treatment relationship within the Psychosocial Rehabilitation Program
at Jackson Memorial Hospital, with which Dr. Chaves is associated. Dr. Chaves’ report
states that the Plaintiff has been receiving treatment within the Psychosocial
Rehabilitation Program since March 25, 2014, attending activities in the program daily in
addition to sessions twice monthly to manage his medications. (R. 658). Dr. AresRomero separately confirmed the Plaintiff’s ongoing treatment within the Psychosocial
Rehabilitation Program. (R. 631). The Plaintiff has also identified Dr. Molly Ryan as a
treating physician, and, based on the address provided and date of first treatment, she
also appears to be a physician within the Psychosocial Rehabilitation Program. (R. 472). 8
Thus, given the Plaintiff’s ongoing treatment within the Psychosocial Rehabilitation
Program, Dr. Chaves’ opinion was entitled to the consideration accorded to a treating
physician. 9
8
The unrepresented Plaintiff provided unclear testimony at the hearing regarding his
treatment within the Psychosocial Rehabilitation Program and the records from various
physicians associated with the program were submitted separately, so the ALJ’s
confusion regarding the program is understandable. Further development of the record,
however, may have resolved some of this confusion and this issue will be addressed
subsequently.
9
Even assuming that Dr. Chaves was not considered a treating physician, he remains a
medical source whose opinion was required to be considered. Due to the glaring
omission of any discussion of Dr. Chaves’ opinion, it remains error for the ALJ to have
failed to discuss his opinion at all. See 20 CFR §§ 404.1527(c), 416.927(c); see, e.g.,
Martinez v. Acting Comm’r of Social Sec., No. 15-14798, 2016 WL 4474675, *3 (11th Cir.
Aug. 25, 2016) (“The ALJ must evaluate every medical opinion received and determine
what weight to give to that opinion.”); Baez v. Comm’r of Social Sec., No. 15-13941, 2016
WL 4010434, *3 (11th Cir. July 7, 2016) (“In evaluating medical opinions, the ALJ should
consider factors such as the examining relationship, the treatment relationship, the
23
There are numerous statements in the ALJ’s opinion that suggest the ALJ did not
even consider Dr. Chaves’ report. The ALJ’s opinion states that “the record was devoid
any [sic] contemporaneous treatment notes from Dr. Ares-Romero or Jackson Memorial
Hospital,” (R. 82), overlooking the opinion from Dr. Chaves. (R. 82). Notably, although
Dr. Chaves notes that Plaintiff has been hospitalized twice and has been prescribed
Celexa, Haldol, and Cogentin, the ALJ’s opinion finds that “the record is devoid any [sic]
evidence of inpatient hospitalizations for an exacerbation of mental symptoms at any
time pertinent to this decision,” (R. 80) and “the claimant has not taken any medications
for those symptoms.” (R 83). 10
The ALJ never referenced the opinions of Dr. Chaves that the Plaintiff is likely to
be absent from work more than four days per month; that he shows marked restriction in
the areas of maintaining social functioning and concentration, persistence, and pace;
and that the Plaintiff will experience four or more episodes of deterioration or
decompensation of extended duration. (R. 660 – 61). Additionally, the ALJ never
references the opinion of Dr. Chaves that the Plaintiff has exhibited psychotic features
and deterioration from a previous level of functioning. (R. 663). Moreover, these
opinions are contrary to the ALJ’s residual functional capacity assessment because
these opinions state that the Plaintiff has greater limitations than those determined by
the decision. Thus, it appears that the ALJ did not give Dr. Chaves’ opinion controlling
weight. While it is possible that the ALJ considered Dr. Chaves’ opinion and
incorporated that opinion in her residual functional capacity assessment, she provided
no explanation for the weight, or lack thereof, that she assigned to the opinion. The ALJ
doctor’s specialization, whether the opinion is amply supported, and whether the opinion
is consistent with the record. The RFC assessment must always consider and address
the medical source opinions.”).
10
In fact, there are no treatment records from 2014, despite the reference to treatment by
Dr. Chaves. This is a significant gap in the record, as discussed in more detail below.
24
stated that she considered the entire record. A statement that the ALJ has considered all
of the opinion evidence, however, is not sufficient to discharge her burden to explicitly
set forth the weight accorded to that evidence. See Cowart, 662 F.2d at 735. Without a
clear explanation of how the ALJ treated this opinion, the Court cannot determine
whether the ALJ's conclusions were rational or supported by substantial evidence. See
id.
This Court need not address each of the Defendant’s individual arguments, as it is
the ALJ’s responsibility to consider and explain the weight given to different medical
doctors. It is not the responsibility of the Defendant or this Court to supply post-hoc
rationales for the ALJ’s failure to consider the opinion of a physician. As in Winschel, it
is possible that the ALJ in the case at bar considered and rejected Dr. Chaves’ opinion,
“but without clearly articulated grounds for such a rejection, we cannot determine
whether the ALJ’s conclusions were rational and supported by substantial evidence.”
631 F.3d at 1179. Because the ALJ did not explain why she was rejecting the opinion,
this Court cannot determine whether she rejected it for one of the reasons suggested by
the Defendant or for some other, unsupportable reason. Although the ALJ is not
required to specifically refer to every piece of evidence in the record, Dyer, 395 F.3d at
1211, she is required to explain the weight he afforded to “obviously probative exhibits,”
Cowart, 662 F.2d at 735.
Finally, the undersigned disagrees with the Defendant’s contention that this error
was harmless. Dr. Chaves’ report indicates that the Plaintiff has limitations beyond
those determined in the ALJ’s opinion and includes clinically significant findings that the
ALJ states are absent from the record in her opinion. It is possible that the ALJ had
reason to disregard Dr. Chaves’ report, but where, as here, “the ALJ fails to state with at
least some measure of clarity the grounds for the decision, we will decline to affirm
‘simply because some rationale may have supported the ALJ's conclusion.’” Colon v.
25
Colvin, 660 Fed. App’x 867 (11th Cir. 2016) citing Owens v. Heckler, 748 F.2d 1511, 1516
(11th Cir. 1984).
The case shall be remanded to the Commissioner to more fully analyze the
opinion of Dr. Chaves and assign a weight accordingly.
b. Dr. Joseph Poitier
The Plaintiff asserts that the ALJ erred by failing to consider the opinion evidence
or records from Dr. Joseph Poitier, ECF No. [26] at 13. The Defendant does not
specifically address the ALJ’s failure to consider the records of Dr. Poitier, but responds
generally to Plaintiff’s contention that “the ALJ did not consider various doctors who
diagnosed psychiatric conditions and prescribed him medication” that the “mere
diagnosis of a condition is insufficient to demonstrate the functional limitations it
causes,” ECF No. [29] at 15. The medication profile, treatment records, and psychiatric
evaluation submitted by Dr. Poitier, however, provide more than a “mere diagnosis,” and
include recurrent observations of the Plaintiff’s flat and/or blunt affect; and, fair insight,
judgment, and reliability. (R. 635-643). The evaluation of the Plaintiff’s functioning is
provided via GAF scores in the 45-55 range. 11 The treatment records indicate that Dr.
Poitier saw Plaintiff on multiple occasions and was a treating physician of the Plaintiff.
(R. 635-643). “The testimony of a treating physician must ordinarily be given substantial
or considerable weight unless good cause is shown to the contrary. The Secretary must
specify what weight is given to a treating physician’s opinion and any reason for giving it
no weight, and failure to do so is reversible error.” MacGregor v. Bowen, 786 F.2d 1050,
1053 (11th Cir. 1986).
11
The undersigned recognizes that these scores are not determinative of the analysis;
but they reflect a judgment of functioning that indicates serious symptoms, including
inability to keep a job. See AM. PSYCHIATRIC ASS’N, THE DIAGNOSTIC AND STATISTICAL
MANUAL OF MENTAL DISORDERS (“DSM-IV”), at 32 (4th ed. Text rev. 2000). The use of the
GAF score was discontinued in DSM V.
26
Thus, the ALJ erred in failing to consider the opinion evidence or records from Dr.
Poitier and to assign a particular weight to such opinion. The case is remanded to the
Commissioner to more fully analyze the opinion of Dr. Poitier and assign a weight
accordingly.
c. Dr. Molly Ryan
The Plaintiff asserts that the ALJ erred by failing to consider the opinion evidence
or records from Dr. Molly Ryan, ECF No. [26] at 13. The only evidence in the record
regarding Dr. Ryan, however, is a “Claimant’s Recent Medical Treatment” document
submitted by the Plaintiff that lists Dr. Ryan as a doctor that the Plaintiff has seen since
the last time his case was updated by the Social Security Administration. (R. 472). Given
that the Plaintiff was unrepresented at the hearing, the best practice would have been for
the ALJ to request records from Dr. Ryan. The date given for treatment is March 25,
2014. (R. 472). Given the limited evidence from Dr. Ryan in the record, however, the
undersigned cannot find that the ALJ erred in failing to consider the evidence from Dr.
Ryan. As the case will be remanded, however, these records should be requested,
particularly since this is within the “gap” period for which there are no medical records
and during which the Plaintiff was hospitalized for psychiatric treatment.
d. Dr. Jack Weitz
The Plaintiff asserts that the ALJ erred by failing to consider the opinion evidence
or records from Dr. Weitz, ECF No. [26] at 13. Dr. Weitz performed a Learning Disabilities
Evaluation on the Plaintiff on June 20, 2002 and diagnosed the Plaintiff with persistent
depressive disorder, and recommended involvement in mental health treatment. (R. 545).
There is no evidence in the record that Dr. Weitz saw the Plaintiff more than on the single
occasion during which he performed his evaluation. Therefore, Dr. Weitz is not a treating
physician of the Plaintiff and his opinion was not entitled to substantial weight.
Additionally, Dr. Weitz’s evaluation of the Plaintiff occurred more than 10 years prior to
27
the relevant time period for the Plaintiff’s redetermination of benefits, and thus is of
limited relevance to the determination of the Plaintiff’s abilities during the relevant time
period. Accordingly, the ALJ did not err in failing to consider the evidence from Dr.
Weitz.
2. Non-Medical Opinion Evidence
The Plaintiff also summarily argues that the ALJ erred in failing to consider nonmedical evidence in the record, specifically Exhibits 1E - high school records, 2F childhood speech delayed, 3F – institutional educational plan, 4F – speech therapy
evaluation, ECF No. [26] at 13. The Defendant responds that there is no requirement that
the ALJ specifically refer to every piece of evidence in her decision and that Plaintiff’s
arguments fail because he has not explained how the identified evidence established that
the Plaintiff was more limited during the relevant time period, August 1, 2012 through the
date of her decision on her March 16, 2015, than found by the ALJ.
An ALJ is obligated to consider a relevant opinion from a non-medical source who
has seen the claimant in a professional capacity, and is supposed to provide a
discussion of that opinion in her decision. SSR 06–03P; 20 C.F.R. § 404.1513. However,
the ALJ is not required to assign any weight to the opinion. SSR 06–03P. Opinion
evidence from non-medical sources is evaluated by a variety of factors, including the
opinion's consistency with other evidence and the degree to which the source presents
evidence to support that opinion. Id. Regardless of its source, there is no special weight
given to an opinion on whether a claimant is disabled, because that issue is reserved for
the Commissioner. 20 C.F.R. § 404.1527(d).
In this case, the ALJ’s treatment of the educational records was not error. The
ALJ is not required to assign any weight or specifically refer to the opinions of nonmedical sources. The ALJ did include a discussion of the Plaintiff’s educational records
in her opinion, focusing on more recent, and thus more relevant, reports from the
28
Plaintiff’s time in high school. Moreover, the Defendant is correct that the Plaintiff has
failed to identify how these dated educational records establish that the Plaintiff was
more limited during the relevant time period. Therefore, the ALJ did not err in her
consideration of the non-medical evidence in the record.
B. The Determination of the Plaintiff’s Credibility
Plaintiff argues that the ALJ’s finding that the Plaintiff was not credible
concerning statements of intensity, persistence, and the limiting effects of his disability
is (1) based upon the wrong standard; and (2) not supported by substantial evidence,
ECF No. [26] at 6-14. The Defendant asserts that the ALJ applied the correct standard
and that substantial evidence supports the ALJ’s assessment of Plaintiff’s symptoms,
ECF No. [29] at 5-12.
1. Standard for Evaluation of Subjective Symptoms
The Plaintiff argues that the ALJ erred in applying the wrong standard in
evaluating the Plaintiff’s subjective symptoms and making a credibility determination.
The Plaintiff argues that Social Security Ruling 16-3p, which became effective on March
28, 2016 can be applied retroactively and that case law applying the policy ruling has
established that “while an ALJ may find testimony not credible in part, or whole, she may
not disregard it solely because it is not substantiated affirmatively by objective medical
evidence,” ECF No. [26] at 8. The Defendant responds that the ALJ issued her opinion in
the case at bar on March 6, 2015, prior to the publication of SSR16-3p, and that SSR 163p does not apply retroactively, ECF No. [29] at 11.
It is well-established that [r]etroactivity is not favored in the law ... and
administrative rules will not be construed to have retroactive effect unless their language
requires this result.” Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208, 109 S.Ct. 468,
471, 102 L.Ed.2d 493 (1988). Moreover, the Eleventh Circuit has specifically determined
that “SSR 16-3p does not apply retroactively because it has no language suggesting,
29
much less requiring, retroactive application.” Contreras-Zambrano v. Social Security
Administration, Commissioner, --- Fed. Appx. --- , 2018 WL 618420, *1 (11th Cir. 2018)
(noting that “the SSA made clear when it republished SSR 16-3p that it would not apply
the rule retroactively and did not expect courts to apply the rule retroactively.”).
Therefore, the ALJ did not err in applying SSR 96-7p because it was the standard
in effect at the time of Plaintiff’s hearing and SSR 16-3p does not apply retroactively.
2. Credibility Analysis
In considering the Plaintiff's symptoms, the ALJ must follow a two-step process
where it first must be determined whether there is an underlying medically determinable
physical or mental impairment(s)—i.e., an impairment(s) that could be shown by
medically acceptable clinical and laboratory diagnostic techniques—that could
reasonably be expected to produce the claimant's pain or other symptoms. SSR 96-7p.
Once this is shown, the ALJ must evaluate the intensity, persistence, and limiting effects
of the claimant's symptoms to determine the extent that these limit Plaintiff's functioning.
Id. If statements about the intensity, persistence, or functionally limiting effects of pain
or other symptoms are not substantiated by objective medical evidence, the ALJ must
make a finding on the credibility of the statements based on a consideration of the entire
case record. Id.
The responsibility of the fact-finder, the ALJ, is to weigh the Plaintiff’s complaints
about his symptoms against the record as a whole; this falls to the ALJ alone to make
this determination. 20 C.F.R. §§ 404.1529(a), 416.929(a). A clearly articulated credibility
finding supported by substantial evidence in the record will not be disturbed by a
reviewing court. Foote v. Chater, 67 F.3d 1553, 1562 (11th Cir. 1995). "[T]he ALJ's
discretionary power to determine the credibility of testimony is limited by his obligation
to place on the record explicit and adequate reasons for rejecting that testimony."
Cannon v. Bowen, 858 F.2d 1541, 1545 (11th Cir. 1988). If the ALJ decides not to credit
30
such testimony, she must articulate explicit and adequate reasons for doing so. Hale v.
Bowen, 831 F. 2d 1007, 1011 (11th Cir. 1987). A lack of an explicit credibility finding
becomes a ground for remand when credibility is critical to the outcome of the case.
Smallwood v. Schweiker, 681 F.2d 1349, 1352 (11th Cir.1982). That determination,
however, may be affected by the lack of a fully developed record, and should be revisited
on remand. For this, the ALJ must examine the entire record.
In the case at bar, the ALJ concluded that the Plaintiff’s “daily activities are not
limited to the extent one would expect, given the complaints of disabling symptoms and
limitations.” (R. 83).
While the undersigned finds that the ALJ followed the appropriate procedure
regarding the credibility determination, the undersigned has concerns regarding whether
the determination is supported by substantial evidence in the record. Based upon the
need to remand for a full and fair development of the record and to re-evaluate the
medical opinion evidence of record, however, it will be necessary to the ALJ to reevaluate the credibility of the Plaintiff based upon the entirety of the record. 12
Therefore, the undersigned finds that the case should be remanded for the ALJ to
make new credibility assessment based upon a review of the record in its entirety.
C. Development of The Record
The Plaintiff asserts that the ALJ did not properly develop the record as she failed
to develop the medical records from the Plaintiff’s treating doctors, ECF No. [26] at 13.
The Plaintiff asserts that the ALJ is charged with developing a full and fair record and
should have sought to develop the record from the Plaintiff’s treating doctors, Drs.
12
In this regard, the undersigned notes that the fact that the Plaintiff can shop for and
play video games is not evidence that the Plaintiff is not disabled, as the ability to play
video games is not evidence that the Plaintiff would be able to sustain fulltime
employment. The undersigned recognizes, however, that the ALJ also relied on other
evidence in the record.
31
Chaves, Ryan, and Poitier, especially given the fact that the Plaintiff was unrepresented
at the hearing, ECF No. [26] at 8-13. The Defendant responds that the ALJ did fully
develop the record, and that the unrepresented Plaintiff did not raise any issue at the
hearing regarding the development of additional evidence. The Defendant contends that
the record does not contain evidentiary gaps that resulted in unfairness or prejudice to
the Plaintiff. Further, the Defendant asserts that the Plaintiff failed to indicate what facts
could have been elicited that would change the outcome of this case and failed to show
that he was prejudiced by being unrepresented or by the ALJ’s actions, ECF No. [30] at
18-19.
In Reply, the Plaintiff states that he was prejudiced by being unrepresented at the
hearing because an attorney would have helped him highlight the importance of Dr.
Chaves’ report and would have provided explanation regarding the interpretation of the
educational records, ECF No. [31] at 1. The Plaintiff further argues that his inability to
provide a knowing and intelligent waiver of his right to counsel is apparent based on a
review of the transcript of the alleged waiver of counsel, ECF No. [31] at 6. 13
Whether or not a claimant is represented by counsel, the ALJ has a duty to
develop a full and fair record. Ellison v. Barnhart, 355 F. 3d 1272, 1276 (11th Cir. 2003).
This is an onerous task, as the ALJ must “scrupulously and conscientiously probe into,
inquire of, and explore for all relevant facts.” Cowart v. Schweiker, 662 F.2d 731, 735
(11th Cir. 1981) (internal quotation marks omitted). In determining whether a claimant is
disabled, the ALJ must consider the evidence as a whole. Spencer ex rel. Spencer v.
13
The undersigned need not reach the question of whether the Plaintiff’s waiver of his
right to counsel was knowing and intelligent, because the ALJ failed to adequately
develop the record under either standard, based on the numerous evidentiary gaps and
inconsistencies in the record. See Kelley, 761 F.2d at 1540 n. 2 (recognizing “a slightly
different standard” for evaluating whether an unrepresented claimant has received a full
and fair hearing depending upon whether there has been a valid waiver and noting that,
in any case, there must be a showing of prejudice to trigger a remand to the Secretary for
reconsideration).
32
Heckler, 765 F.2d 1090, 1093 (11th Cir.1985) (per curiam) (internal quotation marks
omitted). The ALJ’s duty to develop a full and fair record is heightened when the
claimant is not represented by counsel in the administrative proceeding. See Brown v.
Shalala, 44 F.3d 931, 934–35 (11th Cir.1995); Kelley v. Heckler, 761 F.2d 1538, 1540 & n.2
(11th Cir.1985). Nevertheless, the claimant ultimately bears the burden of proving he is
disabled and consequently is responsible for producing evidence in support of his claim.
Ellison, 355 F.3d at 1276. In determining whether a remand is necessary to develop the
record, we consider whether there are evidentiary gaps in the record that result in
unfairness or clear prejudice to the claimant. Brown, 44 F.3d at 935. Therefore, a
claimant must demonstrate prejudice before we will conclude his due process rights
have been violated to such an extent that the case must be remanded. Id. To
demonstrate prejudice, the claimant must show “the ALJ did not have all of the relevant
evidence before him in the record ..., or that the ALJ did not consider all of the evidence
in the record in reaching his decision.” Kelley, 761 F.2d at 1540.
Herein, there are numerous evidentiary gaps in the record, several emphasized by
the ALJ herself. For example, the ALJ noted in her opinion that the medical director of
the Psychosocial Rehabilitation Program, Patricia Ares-Romero, M.D., submitted
documentation reporting that the claimant was diagnosed with schizoaffective disorder,
depressed type and that he was prescribed Celexa, Haldol, and Cogentin, but that “the
record was devoid of any contemporaneous treatment notes from Dr. Ares-Romero or
Jackson Memorial Hospital.” (R. 82). Dr. Ares-Romero, however, states at the bottom of
her letter, “Please advise if you require further information.” Thus, she invited a request
for more detailed information. Moreover, a review of the record suggests that, in fact,
Drs. Chaves and Ryan, at least, are both physicians with the Psychosocial Rehabilitation
Program at Jackson Memorial Hospital. The address provided for Drs. Chaves and Ryan
corresponds to the Jackson Memorial Hospital Highland Pavilion. (R. 658, 472). Dr.
33
Chaves states in his report that the Plaintiff “has been in this program since [March 25,
2014]” and that “[the Plaintiff] is currently in [the Psychosocial Rehabilitation Program],
he is attending activities daily.” (R. 658). The undersigned believes that the “treatment
program” referred to by Plaintiff during the hearing is actually the Psychosocial
Rehabilitation Program at Jackson Memorial Hospital. (R. 102, 115-17, 120-22). The
confusion in the record regarding these key pieces of evidence demonstrates that there
are “evidentiary gaps in the record that result in unfairness or clear prejudice to the
claimant.” Brown, 44 F. 3d at 935.
The ALJ further states in her opinion that “[d]espite the complaints of allegedly
disabling symptoms, the claimant has not taken any medications for those symptoms.
At the psychiatric evaluation conducted on September 7, 2012, it was noted that the
claimant refused medication even after it was recommended by the doctor. (R. 83). But
subsequent to the 2012 evaluation referenced by the ALJ, the Plaintiff began taking
medication, as supported by multiple medical opinions in the record. Specifically, Drs.
Ares-Romero, Chaves, Poitier, and Ryan all indicate in their reports that the Plaintiff has
been prescribed medication to treat his mental illness. Moreover, the Plaintiff’s current
prescriptions were discussed during the hearing before the ALJ. (R. 106).
The ALJ indicates in her opinion that there is no record evidence of inpatient
hospitalizations or periods of decompensation. But Dr. Chaves’ report describes two
separate “psychiatric hospitalization[s]” that occurred in 2014. (R. 663).
The
“Claimant’s Recent Medical Treatment” form submitted on behalf of the Plaintiff in April
2014 also references the Plaintiff being sent to the mental hospital while incarcerated and
being hospitalized at Jackson Memorial Hospital for depression. (R. 472). Additionally,
the Plaintiff testified that at one point he had suicidal thoughts and “they kind of locked
me up. But instead of them locking me up, they took me to crisis.” (R. 111-12). The
undersigned suggests that the Plaintiff may have been referencing an in-patient
34
hospitalization, however, the record is unclear because the ALJ did not ask the Plaintiff
to elaborate or clarify his statement.
The Plaintiff has adequately alleged that there are evidentiary gaps in the record
that result in clear prejudice to the Plaintiff. The record as a whole reveals that relevant
facts, documents, and opinions were omitted from the ALJ’s consideration or findings
and that there was significant confusion regarding the Plaintiff’s involvement in the
Psychosocial Rehabilitation Program at Jackson Memorial Hospital. The undersigned
finds that the ALJ failed to develop the record regarding the Plaintiff’s limitations by
failing to request records from the Plaintiff’s treating physicians where needed and
ignoring or overlooking relevant information before determining that the Plaintiff was not
disabled. 14 Therefore, the undersigned recommends that the case be remanded for the
ALJ to review the entire record anew to determine the Plaintiff’s eligibility.
VII.
CONCLUSION
Based on the foregoing, this Court finds that the ALJ erred by not fully
considering the opinion evidence of record and assigning a weight to the Plaintiff’s
treating physicians and by failing to fully and fairly develop the record. These
deficiencies rendered the assessment of the Plaintiff’s credibility regarding his mental
functioning deficient as well. Thus, the ALJ’s determination of the Plaintiff’s RFC was
not supported by substantial evidence. Therefore, in accordance with the above, it is
hereby
ORDERED AND ADJUDGED that the Plaintiff’s Motion for Summary Judgment,
ECF No. [26], is GRANTED, and that Defendant’s Motion for Summary Judgment, ECF
No. [30], is DENIED. This matter is REMANDED to the Commissioner pursuant to 42
14
Moreover, not only was the Plaintiff proceeding pro se in the administrative
proceedings, but his full scale IQ of 75 was in the borderline range of intellectual abilities
and he had obvious problems of comprehension in both hearings before the ALJ.
35
U.S.C § 405(g), with instructions for the ALJ to fully and fairly develop the record,
accurately review and fully assign a weight to the Plaintiff’s treating physicians Drs.
Chaves and Ryan, and re-evaluate the Plaintiff’s credibility, as stated above.
DONE AND ORDERED in chambers in Miami, Florida on March 29, 2018
_______________________________
ANDREA M. SIMONTON
CHIEF UNITED STATES MAGISTRATE JUDGE
Copies furnished via CM/ECF to:
All counsel of record
36
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