Johnson v. Commissioner of Social Security, No. 8:2021cv00149 - Document 25 (M.D. Fla. 2022)
Court Description: OPINION AND ORDER reversing and remanding this action to the Commissioner. 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 8/18/2022. (brh)
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Johnson v. Commissioner of Social Security Doc. 25 Case 8:21-cv-00149-DNF Document 25 Filed 08/18/22 Page 1 of 11 PageID 1173 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION MELISSA MARGARET JOHNSON, Plaintiff, v. Case No.: 8:21-cv-149-DNF COMMISSIONER OF SOCIAL SECURITY, Defendant. OPINION AND ORDER Plaintiff Melissa Margaret Johnson 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 (hereinafter referred to as “Tr.” followed by the appropriate page number), and the parties filed a joint legal memorandum setting forth their respective positions. As explained below, the decision of the Commissioner is REVERSED and REMANDED pursuant to § 205(g) of the Social Security Act, 42 U.S.C. § 405(g). Dockets.Justia.com Case 8:21-cv-00149-DNF Document 25 Filed 08/18/22 Page 2 of 11 PageID 1174 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. -2- Case 8:21-cv-00149-DNF Document 25 Filed 08/18/22 Page 3 of 11 PageID 1175 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 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, -3- Case 8:21-cv-00149-DNF Document 25 Filed 08/18/22 Page 4 of 11 PageID 1176 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). 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. -4- Case 8:21-cv-00149-DNF Document 25 Filed 08/18/22 Page 5 of 11 PageID 1177 C. Procedural History Plaintiff filed an application for supplemental security income benefits on February 6, 2017, alleging disability beginning on July 1, 2016. (Tr. 124, 257-261). The application was denied initially and on reconsideration. (Tr. 124, 146). Plaintiff requested a hearing and on May 3, 2019 and January 22, 2020, hearings were held before Administrative Law Judge (“ALJ”) Shirley Ann Marzan. (Tr. 42-71). On February 19, 2020, the ALJ entered a decision finding Plaintiff not under a disability since February 6, 2017, the date the application was filed. (Tr. 15-26). Plaintiff requested review of the hearing decision, but the Appeals Council denied Plaintiff’s request on November 25, 2020. (Tr. 1-5). Plaintiff initiated the instant action by Complaint (Doc. 1) filed on January 20, 2021, and the case is ripe for review. The parties consented to proceed before a United States Magistrate Judge for all proceedings. (Doc. 21). 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 February 6, 2017, the application date. (Tr. 17). At step two, the ALJ found that Plaintiff had the following severe impairments: “osteoarthritis; hallux valgus of the left foot; obesity; and a mental impairment variously diagnosed to include depressive disorder and anxiety disorder.” (Tr. 17). At step three, the ALJ found that Plaintiff did not have an -5- Case 8:21-cv-00149-DNF Document 25 Filed 08/18/22 Page 6 of 11 PageID 1178 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. 18). 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 sedentary work as defined in 20 [C.F.R. §] 416.967(a) except: the claimant is able to lift and/or carry twenty pounds occasionally and ten pounds frequently; sit for six hours in an eight-hour workday; stand and/or walk for two hours in an eight-hour workday, with a sit/stand option; occasionally climb ramps and stairs; never climb ladders, ropes, or scaffolds; occasionally stoop, kneel, crouch, or crawl; and never work near unprotected heights, moving mechanical parts, extreme cold or vibration. The claimant is also able to perform simple, routine tasks; make simple work[-]related decisions; frequently interact with supervisors; occasionally interact with coworkers; occasionally interact with the general public, but no customer service work; and able to tolerate changes in the work setting. (Tr. 20). At step four, the ALJ found Plaintiff was unable to perform any past relevant work as a cashier II. (Tr. 24). At step five, the ALJ relied on the testimony of a vocational expert to find that considering Plaintiff’s age (39 on the application date), education (at least high school), work experience, and RFC, there are jobs that existed in significant numbers in the national economy that Plaintiff could perform. -6- Case 8:21-cv-00149-DNF Document 25 Filed 08/18/22 Page 7 of 11 PageID 1179 (Tr. 24-25). Specifically, the ALJ found that Plaintiff could perform such occupations as: (1) document preparer, DOT 249.587-018, sedentary, SVP 2 (2) addresser, DOT 209.587-010, sedentary, SVP 2 (3) cutter/paster, press clippings, DOT 249.587-014, sedentary, SVP 2 (Tr. 25). The ALJ concluded that Plaintiff had not been under a disability since February 6, 2017, the date the application was filed. (Tr. 26). II. Analysis On appeal, Plaintiff raises three issues: (1) whether the ALJ’s rejection of the opinions of consultative examiner, Dr. Leni Kramer, was supported by substantial evidence; (2) whether the ALJ properly considered all of the opinion evidence, including Dr. Feldman’s opinion; and (3) whether the ALJ properly considered all of Plaintiff’s impairments. (Doc. 22, p. 18, 31, 35). Both the first and second issues involve the ALJ’s consideration of a medical source’s opinion. Based on review of the ALJ’s evaluation of treating and nontreating sources’ opinions, the ALJ erred by applying the incorrect regulations. The ALJ evaluated the medical sources’ opinions by applying the regulations for disability cases filed after March 27, 2017. (Tr. 23-25). Under these new regulations, 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). Instead, an -7- Case 8:21-cv-00149-DNF Document 25 Filed 08/18/22 Page 8 of 11 PageID 1180 ALJ assesses the persuasiveness of a medical source’s opinions, following potentially five factors. 20 C.F.R. § 404.1520c(a)-(c); 20 C.F.R. § 404.920c(a)-(c). 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-cv1662-ORL-PDB, 2020 WL 5810273, at *2 (M.D. Fla. Sept. 30, 2020) (citing 20 C.F.R. § 404.1520c(a)). However, in this case, Plaintiff applied for benefits on February 6, 2017, before the change in regulations. (Tr. 15, 124). Thus, 20 C.F.R. § 416.927 applied. Under the prior regulations, at step four, an ALJ must properly consider treating, examining, and non-examining physician’s opinions and weigh these opinions and findings as an integral part of the ALJ’s RFC determination. See Rosario v. Comm’r of Soc. Sec., 877 F. Supp. 2d 1254, 1265 (M.D. Fla. 2012). Whenever a physician offers an opinion concerning the nature and severity of a claimant’s impairments— including the claimant’s symptoms, diagnosis, and prognosis; physical and mental restrictions; or what the claimant can still do—the ALJ must state with particularity the weight given to the opinion and the reasons therefor. Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178-79 (11th Cir. 2011). Without such an explanation, “it is impossible for a reviewing court to determine whether the ultimate decision on the -8- Case 8:21-cv-00149-DNF Document 25 Filed 08/18/22 Page 9 of 11 PageID 1181 merits of the claim is rational and supported by substantial evidence.” Id. (citing Cowart, 662 F.2d at 735). The opinions of treating physicians are entitled to substantial or considerable weight unless good cause is shown to the contrary. Phillips v. Barnhart, 357 F.3d 1232, 1240 (11th Cir. 2004). The Eleventh Circuit has concluded that good cause exists when: (1) the treating physician’s opinion was not bolstered by the evidence; (2) the evidence supported a contrary finding; or (3) the treating physician’s opinion was conclusory or inconsistent with the doctor’s own medical records. Id. Even though examining doctors’ opinions are not entitled to deference, an ALJ is nonetheless required to consider every medical opinion. Bennett v. Astrue, No. 308-CV-646-J-JRK, 2009 WL 2868924, at *2 (M.D. Fla. Sept. 2, 2009) (citing McSwain v. Bowen, 814 F.2d 617, 619 (11th Cir. 1987); Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158-59 (11th Cir. 2004)). “The ALJ is to consider a number of factors in determining how much weight to give to each medical opinion: (1) whether the doctor has examined the claimant; (2) the length, nature, and extent of a treating doctor’s relationship with the claimant; (3) the medical evidence and explanation supporting the doctor’s opinion; (4) how consistent the doctor’s ‘opinion is with the record as a whole’; and (5) the doctor’s specialization.” Forsyth v. Comm’r of Soc. Sec., 503 F. App’x 892, 893 (11th Cir. 2013) (citing 20 C.F.R. §§ 404.1527(c), 416.927(c)). -9- Case 8:21-cv-00149-DNF Document 25 Filed 08/18/22 Page 10 of 11 PageID 1182 In this case, while the ALJ correctly cited 20 C.F.R. § 416.927, she analyzed the medical sources’ opinions using the new regulations, 20 C.F.R. § 416.920c, that only apply to applications filed after March 27, 2017. (Tr. 20, 23-24). This analysis is evident by the language the ALJ used immediately prior to starting her evaluation of the medical sources’ records and opinions: “As for medical opinion(s) and prior administrative medical finding(s), we will not defer or give any specific evidentiary weight, including controlling weight, to any prior administrative medical finding(s) or medical opinion(s), including those from your medical sources.” (Tr. 23). It is also evident by the lack of the term “weight” and the presence of the term “persuasive” for all the opinions the ALJ evaluated. (Tr. 23-25). Because the ALJ used the incorrect regulations to evaluate the medical sources’ opinions and the change in regulations was substantial, the Court cannot conduct a meaningful review of the opinion evidence. Thus, the ALJ erred in consideration of the medical evidence of record and remand is warranted. 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 medical evidence - 10 - Case 8:21-cv-00149-DNF Document 25 Filed 08/18/22 Page 11 of 11 PageID 1183 of record. 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 August 18, 2022. Copies furnished to: Counsel of Record Unrepresented Parties - 11 -
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