stating that the court must scrutinize the entire record to determine the reasonableness of the Commissioner’s factual findings
How later courts described this case
- stating that the court must scrutinize the entire record to determine the reasonableness of the Commissioner’s factual findings
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
DEBORAH L. THIEME-KNIGHT,
Plaintiff,
v. Case No. 3:18-cv-658-J-MCR
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,
Defendant.
/
MEMORANDUM OPINION AND ORDER1
THIS CAUSE is before the Court on Plaintiff’s appeal of an administrative
decision denying her application for a period of disability and disability insurance
benefits (“DIB”). A hearing was held before an Administrative Law Judge (“ALJ”)
on October 19, 2010, at which Plaintiff was represented by counsel. (Tr. 70-
127.) On January 13, 2011, the ALJ found Plaintiff not disabled from March 30,
2006, the alleged disability onset date, through September 30, 2010, the date
last insured.2 (Tr. 133-41.) On February 10, 2012, the Appeals Council vacated
the ALJ’s January 13, 2011 decision and remanded the case to the ALJ for
1 The parties consented to the exercise of jurisdiction by a United States
Magistrate Judge. (Doc. 14.)
2 Plaintiff had to establish disability on or before September 30, 2010, her date
last insured, in order to be entitled to a period of disability and DIB. (Tr. 133, 1289.)
further proceedings.3 (Tr.149-51.) In accordance with the remand order, the ALJ
held supplemental administrative hearings on February 21, 2013 and May 6,
2013.4 (Tr. 47-127, 1470-91; Tr. 13-46, 1492-1525.) On August 9, 2013, the ALJ
issued a second decision finding Plaintiff not disabled from March 30, 2006
through September 30, 2010, the date last insured. (Tr. 156-71.) On April 20,
2015, the Appeals Council denied Plaintiff’s request for review of the ALJ’s
August 9, 2013 decision. (Tr. 1352).
Thereafter, Plaintiff filed a federal civil complaint, and, on January 5, 2016,
this Court remanded the case to the Commissioner.5 (Tr. 1347-48.) On March
26, 2016, the Appeals Council vacated the ALJ’s August 9, 2013 decision and
remanded the case to a different ALJ with instructions to, inter alia, fully consider
3 On remand, the ALJ was directed to evaluate, inter alia, the nature and severity
of Plaintiff’s “mental impairments and their impact on her functional ability during the
period at issue.” (Tr. 150.)
4 The ALJ continued the February 21, 2013 hearing to allow for a consultative
psychological examination of Plaintiff. (Tr. 57-64.) Specifically, the State agency
psychological expert, Michael Craig Rabin, Psy.D., testified at the February 21, 2013
hearing that Plaintiff’s doctor wanted neuropsychological testing done, “and mentioned
several times it had to be done, but [Plaintiff] had no insurance and no way of obtaining
the testing. And apparently Social Security did not send her out for a CE [consultative
examination] or IQ testing or memory testing.” (Tr. 58.) On March 28, 2013, Raena
Baptiste-Boles, Psy.D., a State agency consultative psychologist, examined Plaintiff and
completed a Psychological Evaluation (Tr. 1250-54) and a Medical Source Statement of
Ability to do Work-Related Activities (Mental) (Tr. 1255-57).
5 This Court remanded the case upon the Commissioner’s unopposed request for
remand under sentence four of 42 U.S.C. § 405(g), with directions to the ALJ: “to fully
consider the March 18, 2013[] opinion of Raena Baptiste-Boles, Psy.D., pursuant to the
provisions of 20 C.F.R. § 404.1527 and Social Security Rulings 96-2p and 96-5p, and
explain the weight given to this evidence and the reasons for doing so.” (Tr. 1347-51
(alterations omitted).)
the opinion of Raena Baptiste-Boles, Psy.D., a State agency consultative
examiner, and, “[i]f warranted, [to] give further consideration to the claimant’s
maximum residual functional capacity and provide appropriate rationale[,] with
specific references to evidence of record[,] in support of the assessed
limitations.” (Tr. 1341-42.) On December 5, 2016, the new ALJ held another
hearing and, on January 13, 2017, issued a decision finding Plaintiff not disabled
from March 30, 2006 through September 30, 2010. (Tr. 1289-1309, 1321-38.)
The Appeals Council declined to “assume jurisdiction” over Plaintiff’s request for
review of the ALJ’s January 13, 2017 decision. (Tr. 1279-80.)
Plaintiff is appealing the Commissioner’s final decision that she was not
disabled from March 30, 2006 through September 30, 2010. Plaintiff has
exhausted her available administrative remedies and the case is properly before
the Court. (See Tr. 1279-82.) The Court has reviewed the record, the briefs, and
the applicable law. For the reasons stated herein, the Commissioner’s decision
is REVERSED and REMANDED.
I. Standard
The scope of this Court’s review is limited to determining whether the
Commissioner applied the correct legal standards, McRoberts v. Bowen, 841
F.2d 1077, 1080 (11th Cir. 1988), and whether the Commissioner’s findings are
supported by substantial evidence, Richardson v. Perales, 402 U.S. 389, 390
(1971). “Substantial evidence is more than a scintilla and is such relevant
evidence as a reasonable person would accept as adequate to support a
conclusion.” Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir.
2004). Where the Commissioner’s decision is supported by substantial
evidence, the district court will affirm, even if the reviewer would have reached a
contrary result as finder of fact, and even if the reviewer finds that the evidence
preponderates against the Commissioner’s decision. Edwards v. Sullivan, 937
F.2d 580, 584 n.3 (11th Cir. 1991); Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th
Cir. 1991). The district court must view the evidence as a whole, taking into
account evidence favorable as well as unfavorable to the decision. Foote v.
Chater, 67 F.3d 1553, 1560 (11th Cir. 1995); accord Lowery v. Sullivan, 979 F.2d
835, 837 (11th Cir. 1992) (stating that the court must scrutinize the entire record
to determine the reasonableness of the Commissioner’s factual findings).
II. Discussion
Plaintiff argues that a remand is necessary because the ALJ erred by
failing to properly credit the medical opinions of the State agency testifying
psychological expert, Dr. Rabin, and the consultative psychological examiner, Dr.
Baptiste-Boles, in assessing Plaintiff’s residual functional capacity (“RFC”).
Defendant responds that the ALJ properly evaluated the medical source opinions
in assessing the Plaintiff’s RFC prior to the expiration of her insured status.
A. Standard for Evaluating Opinion Evidence and Subjective
Symptoms
The ALJ is required to consider all the evidence in the record when making
a disability determination. See 20 C.F.R. § 404.1520(a)(3). With regard to
medical opinion evidence, “the ALJ must state with particularity the weight given
to different medical opinions and the reasons therefor.” Winschel v. Comm’r of
Soc. Sec., 631 F.3d 1176, 1179 (11th Cir. 2011). Substantial weight must be
given to a treating physician’s opinion unless there is good cause to do
otherwise. See Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997).
“‘[G]ood 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.” Phillips v. Barnhart, 357 F.3d 1232, 1240-41 (11th Cir. 2004).
When a treating physician’s opinion does not warrant controlling weight, the ALJ
must nevertheless weigh the medical opinion based on: (1) the length of the
treatment relationship and the frequency of examination, (2) the nature and
extent of the treatment relationship, (3) the medical evidence supporting the
opinion, (4) consistency of the medical opinion with the record as a whole, (5)
specialization in the medical issues at issue, and (6) any other factors that tend
to support or contradict the opinion. 20 C.F.R. § 404.1527(c)(2)-(6). “However,
the ALJ is not required to explicitly address each of those factors. Rather, the
ALJ must provide ‘good cause’ for rejecting a treating physician’s medical
opinions.” Lawton v. Comm’r of Soc. Sec., 431 F. App’x 830, 833 (11th Cir.
2011) (per curiam).
Although a treating physician’s opinion is generally entitled to more weight
than a consulting physician’s opinion, see Wilson v. Heckler, 734 F.2d 513, 518
(11th Cir. 1984) (per curiam), 20 C.F.R. § 404.1527(c)(2), “[t]he opinions of state
agency physicians” can outweigh the contrary opinion of a treating physician if
“that opinion has been properly discounted,” Cooper v. Astrue, 2008 WL 649244,
*3 (M.D. Fla. Mar. 10, 2008). Further, “the ALJ may reject any medical opinion if
the evidence supports a contrary finding.” Wainwright v. Comm’r of Soc. Sec.
Admin., 2007 WL 708971, *2 (11th Cir. Mar. 9, 2007) (per curiam); see also
Sryock v. Heckler, 764 F.2d 834, 835 (11th Cir. 1985) (per curiam) (same).
“The ALJ is required to consider the opinions of non-examining state
agency medical and psychological consultants because they ‘are highly qualified
physicians and psychologists, who are also experts in Social Security disability
evaluation.’” Milner v. Barnhart, 275 F. App’x 947, 948 (11th Cir. 2008) (per
curiam); see also SSR 96-6p (stating that the ALJ must treat the findings of State
agency medical consultants as expert opinion evidence of non-examining
sources). While the ALJ is not bound by the findings of non-examining
physicians, the ALJ may not ignore these opinions and must explain the weight
given to them in his decision. SSR 96-6p.
When a claimant seeks to establish disability through her own testimony of
pain or other subjective symptoms, the Eleventh Circuit’s three-part “pain
standard” applies. Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991) (per
curiam). “If the ALJ decides not to credit such testimony, he must articulate
explicit and adequate reasons for doing so.” Id.
The pain standard requires (1) evidence of an underlying medical
condition and either (2) objective medical evidence that confirms the
severity of the alleged pain arising from that condition or (3) that the
objectively determined medical condition is of such a severity that it
can be reasonably expected to give rise to the alleged pain.
Id.
Once a claimant establishes that his pain is disabling through objective
medical evidence from an acceptable medical source that shows a medical
impairment that could reasonably be expected to produce the pain or other
symptoms, pursuant to 20 C.F.R. § 404.1529(a), “all evidence about the
intensity, persistence, and functionally limiting effects of pain or other symptoms
must be considered in addition to the medical signs and laboratory findings in
deciding the issue of disability,” Foote, 67 F.3d at 1561.
B. Relevant Medical Opinions
1. Dr. Rabin
Michael Rabin, Ph.D., a licensed clinical and forensic psychologist
designated by the Commissioner as a medical expert, testified at the hearings on
February 21, 2013 (Tr. 1412-69) and May 6, 2013 (Tr. 1470-1525). At the
February 21, 2013 hearing, Dr. Rabin summarized Plaintiff’s mental impairments
in the medical record during the adjudicative period as follows:
[Plaintiff] was originally seen for chronic pain . . . [but] in July of
[20]08, she was seen for post-concussive syndrome, though the CT
scan at the time was normal. . . . [T]wo months later they took
another MRI of the brain, and that was mildly abnormal without any
specific problems noted. She also ha[d] been diagnosed with
anxiety, post[-]traumatic stress disorder, and depression over the
years. And there were indications of some neurological issues as
well, [including] Chiari I malformation. When she was seen by the
CE [consultative examiner] in [20]09, he saw her with a[n] anxiety
disorder due to medical conditions and psychological factors
affecting [her] medical condition. [The CE] didn’t specify which
psychological factors were involved. The next part of interest is
[evidence from] Neurological Partners in [Exhibit] 22F as of May 10th
when they found a post[-]traumatic concussive syndrome and
persistent cognitive changes due to the post[-]traumatic concussive
syndrome. . . . MRIs have shown mild abnormalities with the Chiari I
syndrome. And also[,] they include a suspected partial seizure
disorder with memory loss[], and she showed cognitive problems all
through . . . the case, particularly problems with short-term memory
and problems with executive functioning with the ability to carry out
and to complete tasks that [she] start[s]. In the past, she’s also
several times denied the experience of anxiety and depression and
mainly focused on her pain and her memory problems.
(Tr. 1479-80.) Based on these findings, Dr. Rabin diagnosed Plaintiff with
“cognitive disorder NOS, pain disorder with both psychological factors and a
medullar [inaudible] condition, and anxiety and depressive disorder NOS.” (Tr.
1480.) Dr. Rabin also opined that Plaintiff’s impairments had a mild effect on her
activities of daily living, a moderate effect on her social functioning, and a marked
effect on her pace, persistence, and concentration, but noted that there had been
no periods of decompensation. (Id.) Dr. Rabin further noted that while Plaintiff
did not meet the listings, he opined that Plaintiff would have great difficulty in
completing “the average workday in terms of maintaining attention and time on
task long enough in the day due to the pull of . . . her mental symptoms.” (Id.)
However, given that neuropsychological testing had not been conducted
due to Plaintiff’s lack of insurance and funds, despite Plaintiff’s medical providers’
finding that such testing was necessary, Dr. Rabin recommended that “it would
be best” if neuropsychological tests, including the WAIS, Wechsler Memory tests,
TRAILS, Wisconsin Card Sort Test, and the REY Memory Test or the TOMM,
were conducted.6 (Tr. 1481-82.) The ALJ continued the February 21, 2013
hearing to allow for Plaintiff’s evaluation (psychometric testing) by a State agency
consultative examiner, which was conducted on March 18, 2013 by Dr. Baptiste-
Boles. (Tr. 1504; Tr. 1250-57.)
At Plaintiff’s supplemental hearing on May 6, 2013, Dr. Rabin testified that,
although not all of the recommended tests had been conducted, the WAIS and
the Wechsler Memory tests provided enough information for Dr. Rabin to render
an opinion as to Plaintiff’s intelligence and memory functioning. (Tr. 1504-05.)
Dr. Rabin opined that the tests showed “a severe verbal learning problem and a
problem with verbal memory[,]” but acknowledged that testing regarding
Plaintiff’s executive functioning had not been conducted. (Tr. 1505.) Dr. Rabin
noted that Plaintiff’s memory problems were deemed mild. (Tr. 1507.) Dr. Rabin
continued:
[Plaintiff] has a verbal comprehension . . . in the mildly mentally
retarded range, while her other scores are in the borderline range[,]
except for her working memory . . . where she scored in the below
average range. Looking at the scores themselves, the scores are
consistent within [each] category, which indicate[s] [they are]
probably accurate. And she showed very poor scores on all aspects
of verbal comprehension, using language, understanding language,
6 Dr. Rabin noted that for these type of neurological conditions, “neurologists
typically hire a neuropsychologist to do testing for them because the brain scans will not
pick up executive functioning loss, memory loss, or other types of psychological
factors.” (Tr. 1483.)
and remembering language[,] while her other scores are somewhat
better.
. . .
In terms of her memory functioning[,] she has a very low score in
auditory memory, which means that she has a problem with
meaningful material. She cannot remember meaningful material
very well compared to most people. Looking at her scores . . .
meaningful material is not an aid to her memory. . . . Her visual
memory is normal. Her working memory is normal. Her delayed
memory . . . is also very poor. She would have [difficulty]
remembering work procedures and could only deal with the most
simple of work procedures and routine work which [would] not
change over time.
(Tr. 1508-09.) Dr. Rabin opined that Plaintiff should have “no contact with the
general public because she may get confused or get the wrong information[,]” but
placed no limitations on contact with supervisors or co-workers. (Tr. 1514-15.)
Dr. Rabin then testified that he had reviewed the psychometric testing
performed by Dr. Baptiste-Boles, discussed infra, and that he agreed with her
findings, except that in terms of Plaintiff’s diagnosis of Major Depressive
Disorder, Dr. Rabin opined that it was not clear if Plaintiff suffered from “a major
depression, a bipolar, or dysthymic disorder.” (Tr. 1509-11.) Dr. Rabin opined
that, “[a]s Dr. Bowles [sic] said in her report, and I agree in my earlier testimony,
given her multitude of problems, it’s very difficult [inaudible] [to complete] a 40-
hour workweek and do the work, [and] be on task[,] for 90 percent of the day or
more. That’s . . . the issue I had, what Dr. Boles has, with this case.” (Tr. 1515.)
Dr. Rabin testified that Plaintiff’s impairments had a mild effect on her activities of
daily living and social functioning, but had a marked effect on pace and
concentration, with no episodes of decompensation. (Tr. 1519.) He concluded
that:
given all of [Plaintiff’s] medical problems and emotional problems,
one of my diagnoses before was pain disorder with both
psychological and medical issues. I think that she would miss too
much time off of work or be off task too often because of the pull of
her psychological problems and the pull of her pain disorder and
everything else. That’s what I’m saying. That’s what I said the last
time as well.
(Tr. 1520.)
On May 22, 2013, Dr. Rabin also submitted a post-hearing Mental RFC
Questionnaire. (Tr. 1275-78.) In the Mental RFC Questionnaire, Dr. Rabin
identified Plaintiff’s signs and symptoms of anhedonia or pervasive loss of
interest in almost all activities, decreased energy, generalized persistent anxiety,
somatization unexplained by organic disturbance, mood disturbance, difficulty
thinking or concentrating, memory impairment, and psychological or behavioral
abnormalities associated with a dysfunction of the brain with a specific organic
factor judged to be etiologically related to the abnormal mental state and loss of
previously acquired functional abilities. (Tr. 1275-76.) Dr. Rabin also opined that
Plaintiff would have noticeable difficulty (meaning that she would be unable to
perform a designated task or function more than 20% of the workday or
workweek) performing work-related activities, involving understanding and
remembering detailed instructions, carrying out detailed instructions, and
traveling to unfamiliar places or using public transportation. (Tr. 1276-77.)
Dr. Rabin also concluded that Plaintiff would have noticeable difficulty
(from 11% to 20% of the workday or workweek) with the following: remembering
work-like procedures; maintaining regular attendance; performing at a consistent
pace without an unreasonable number and length of rest [periods]; responding
appropriately to changes in a routine work setting; dealing with normal work
stress; and dealing with stress of semi-skilled and skilled work. (Id.) He also
determined that Plaintiff would have noticeable difficulty (up to 10% of the
workday or workweek) performing the following: understanding and remembering
very short and simple instructions; carrying out very short and simple
instructions; completing a normal workday and workweek without interruptions
from psychologically based symptoms; accepting instructions and responding
appropriately to criticism from supervisors; getting along with co-workers or peers
without unduly distracting them or exhibiting behavioral extremes; interacting
appropriately with the general public; and maintaining socially appropriate
behavior. (Id.) Dr. Rabin concluded that Plaintiff’s impairments were expected to
last at least 12 months and that Plaintiff was not a malingerer. (Tr. 1277.)
2. Dr. Baptiste-Boles
On March 18, 2013, Dr. Raena Baptiste-Boles conducted a psychological
examination of Plaintiff. (Tr. 1250-54 (Psychological Evaluation); Tr. 1255-57
(Medical Source Statement of Ability to do Work-Related Activities (Mental)).)
Dr. Baptiste-Boles noted as follows:
[Plaintiff] reported current mental health conditions being remarkable
for depression and anxiety. The following symptoms of depression
were endorsed: crying spells, insomnia, worthlessness, feeling of
loss (e.g.[,] son in prison, mother’s death, and dad’s death), and
irritability. She stated that symptoms worsened after falling in a
store in 2008. Onset was reported 6 years ago.
. . .
Current mood was reported as “sad” and affect appeared consistent
with mood. She reported that the present conditions [were]
impacted by medical condition and economic difficulties. . . .
. . .
The current level of mental health symptoms would be best
characterized as moderate.
. . .
(Tr. 1251.)
Dr. Baptiste-Boles then conducted a Mental Status Evaluation and noted,
inter alia, that Plaintiff “demonstrated adequate attention and concentration as
she was able to attend to the evaluator’s questions throughout the interview
without distraction and was able to complete tasks of alphabetic and numeric
reiteration without errors.” (Tr. 1252.) Dr. Baptiste-Boles further noted that:
[Plaintiff’s] flexibility appeared adequate as she was able to spell the
word “world” backwards and complete simple tasks of serial
calculations without errors. [Plaintiff] did not display any significant
difficulties in processing speed. Receptive language appeared to be
adequate as she was able to complete all verbal commands
presented without errors and expressive language appeared to be
adequate as she was able to complete all written tasks presented
without errors. Immediate memory appeared to be mildly impaired
as she was able to recall 2 of 3 words immediately after presentation
and recent memory appeared to be mildly impaired as she was able
to recall 2 of the 3 words presented after a short delay. Remote
memory appeared to be adequate as she was able to recall specific
details regarding past autobiographical events. She demonstrated
adequate mental computations as she was able to complete basic
verbal arithmetic problems without errors.
[Plaintiff] displayed adequate social skills. Abstract reasoning
appeared adequate. Judgement related to self-care and social
problem-solving appeared to be adequate . . . . Insight appeared to
be adequate based on the clinician’s observations. Overall
intelligence was approximated as being average based on the
observed vocabulary, usage, and fund of general information.
General thought processes appeared to be coherent, logical, and
goal oriented. Thought form and content appeared to be age
appropriate and unremarkable. She denied having any history of
suicidal or homicidal attempts. . . .
(Id.)
Dr. Baptiste-Boles also performed the Wechsler Adult Intelligence Scale
(WAIS-IV) and the Wechsler Memory Scale (WMS-IV) tests. (Tr. 1252-53.) With
respect to the WAIS-IV, Plaintiff scored as follows: Extremely Low in Verbal
Comprehension; Borderline in Perceptual Reasoning, Processing Speed, and in
Full Scale IQ; and Low Average in Working Memory. (Tr. 1253.) Dr. Baptiste-
Boles noted that Plaintiff’s Full-Scale IQ score of 70 placed her in the “Borderline
range of intellectual functioning” and that Plaintiff’s scores did not demonstrate
any “significant relative strengths or weaknesses.” (Id.) With respect to the
WMS-IV, Plaintiff scored as follows: Extremely Low in Auditory and Delayed
Memory Index; Low Average in Visual Working and Immediate Memory Index;
and Average in Visual Memory Index. (Id.) Dr. Baptiste-Boles noted that Plaintiff
“present[ed] significant difficulties recalling verbal information that [was]
conceptually organized and semantically related” and that these scores
“suggest[ed] a significant difficulty . . . regarding declarative memory.” (Tr. 1254.)
Dr. Baptiste-Boles diagnosed Plaintiff with: Major Depressive Disorder,
Recurrent, Moderate, Anxiety Disorder NOS, and Cognitive Disorder NOS (Axis
I); Arnold Chiari Malformation Type I, seizures, white mass in frontal lobe,
diverticulitis, memory loss, severe headaches, hand pain and stiffness, and
sensory loss of right side of the body from waist to head (Axis III); Occupational
and Economic problems (Axis IV); and a Current GAF of 59 (Axis V). (Tr. 1254.)
In her summary, Dr. Baptiste-Boles opined that Plaintiff’s “mental health
symptoms based on report [sic] and clinical observations appear to be
moderately impacting activities of daily living, vocational performance, and
interpersonal interactions. Current prognosis for [Plaintiff] is fair. In regards to
financial management, [Plaintiff] is not recommended to manage benefits and
financial decisions due to reported memory deficits and confusion.” (Id.)
Dr. Baptiste-Boles also found that Plaintiff’s ability to understand,
remember, and carry out instructions was affected by her impairments. (Tr.
1255.) Dr. Baptiste Boles opined that Plaintiff had marked limitations in carrying
out simple instructions; understanding and remembering complex instructions;
carrying out complex instructions; and in the ability to make judgments on
complex work-related decisions. (Id.) She also found that Plaintiff had moderate
limitations in understanding and remembering simple instructions and in the
ability to make judgments on simple work-related decisions. (Id.) Dr. Baptiste-
Boles opined:
Given [the] memory problems identified by score[]s obtained in
standard testing, claimant will present difficulties related to
remembering instructions and subsequently carry[ing] them out.
[Plaintiff] has problems related to semantic declarative memory. []
[Her symptoms[,] such as depressed mood, [low] [e]nergy, and
anhedonia[,] will interfere with claimant’s ability to perform in a job.
(Id.)
Dr. Baptiste-Boles also opined that Plaintiff’s impairments would interfere
with her ability to interact appropriately with supervisors, co-workers, and the
public, as well as with her ability to respond to changes in routine work settings.
(Tr. 1256.) She found that Plaintiff had moderate restrictions in responding
appropriately to unusual situations and changes in routine work settings. (Id.)
As a result of these findings, Dr. Baptiste-Boles concluded that “[c]ognitive
difficulties related to memory will interfere with the claimant’s ability to
incorporate changes in a routine work setting. Anxious mood and difficulties in
managing social situations will hinder her ability to relate to others at a
work[]place.” (Id.)
C. The ALJ’s January 13, 2017 Decision
At step two of the five-step sequential evaluation process,7 the ALJ found
that Plaintiff had the following severe impairments: “a history of possible
diverticulitis; a history of Arnold-Chiari Type I malformation8; a history of
7 The Commissioner employs a five-step process in determining disability. See
20 C.F.R. § 404.1520(a)(4)(i)-(v).
8 An Arnold-Chiari I malformation is characterized as a structural defect in the
base of the skull and cerebellum.
headaches; a history of abdominal pain with uterine fibroids and later
hysterectomy; a history of musculoskeletal pain secondary to a prior slip and fall
accident.”9 (Tr. 1291.) At step three, the ALJ found that Plaintiff did not have an
impairment or combination of impairments that met or medically equaled the
severity of one of the listed impairments. (Tr. 1294.)
The ALJ then found that, through the date last insured, Plaintiff had the
RFC to perform light work, but with the following limitations:
[L]ift[] up to 20 pounds occasionally; lift/carry up to 10 pounds
frequently. Stand[]/walk[] for about 6 hours and sit[] for up to 6 hours
Normally the cerebellum and parts of the brain stem sit above an opening
in the skull that allows the spinal cord to pass through it (called the
foramen magnum). . . . Chiari malformations may develop when part of
the skull is smaller than normal or misshapen, which forces the cerebellum
to be pushed down into the foramen magnum and spinal canal. This
causes pressure on the cerebellum and brain stem that may affect
functions controlled by these areas and block the flow of cerebrospinal
fluid (CSF)—the clear liquid that surrounds and cushions the brain and
spinal cord. . . . Chiari Malformation Type I [] happens when the lower part
of the cerebellum (called the cerebellar tonsils) extend into the foramen
magnum. . . .
See https://www.ninds.nih.gov/Disorders/Patient-Caregiver-Education/Fact-
Sheets/Chiari-Malformation-Fact-Sheet (last visited September 25, 2019).
9 As to Plaintiff’s diagnosis of suspected partial complex seizures, the ALJ found
that there was no objective evidence of a seizure disorder and that the medical records
and treatment history did “not establish her history of suspected partial complex
seizures as a severe impairment.” (Tr. 1292.) The ALJ found Plaintiff had the following
non-severe impairments: anxiety disorder due to musculoskeletal system; psychological
factors affecting medical condition; and stress-related physiological response affecting
neurological condition. (Id.) The ALJ also rejected Plaintiff’s diagnoses of major
depressive disorder, anxiety disorder NOS, and cognitive disorder because these
diagnoses followed a consultative examination in March 2013, which was after the date
last insured; Plaintiff purportedly denied depression and anxiety in 2010 and 2011; and
the “mental symptomology (depression and anxiety) in 2013 [did] not establish disability
as of the date last insured (or years prior [to] 2010).” (Tr. 1293.) The ALJ found that
Plaintiff’s cognitive disorder was only mild. (Id.)
in an 8-hour workday with normal breaks. In addition, the claimant is
limited to no climbing of ladders, ropes, or scaffolds. The claimant is
limited to frequent climbing of ramps or stairs, frequent balancing,
frequent stooping, frequent kneeling, frequent crouching, and
frequent crawling. The claimant must avoid all exposure to hazards
such as driving automotive equipment, working in proximity to bodies
of water, use of moving machinery, or exposure to unprotected
heights. The claimant is limited to occupations that do not require
complex written or verbal communication or frequent verbal
communication.
(Tr. 1295.) In making these findings, the ALJ considered Plaintiff’s statements
and testimony, the objective medical evidence, as well as the opinions of
treating, examining, and non-examining sources. (Tr. 1295-1307.)
The ALJ adopted and incorporated the summary of Plaintiff’s testimony10
from the previous ALJ’s January 13, 2011 decision, as follows:
The claimant testified she ha[d] headaches that shoot pain down into
her back. She testified no one[,] other than her husband or her
son[,] [had] ever witnessed her having a seizure. She testified no
physician ha[d] ever asked her to keep a seizure diary. The claimant
stated that she ha[d] not had her blood levels checked to determine
if her medication is therapeutic. She further testified she [was] not
seeing any doctors on a regular basis because she [could not] afford
to do so. The claimant testified she now [got] her medications from
the local public health department. Exhibit 3A/10.
(Tr. 1296.) The ALJ also adopted the following summary of Plaintiff’s testimony
from the previous ALJ’s August 9, 2013 decision:
10 Plaintiff declined to give further testimony at the December 5, 2016
supplemental hearing due to memory problems and, instead, relied on her prior
testimony provided during the October 19, 2010 hearing. (See Tr. 1326 (“Her testimony
back then may be more relevant than it is now, just because we may get a lot of . . .
[‘]I’m having a difficult time remembering.[’] So we at least have the testimony that she
offered very close in time to her date last insured and her onset date in the previous
transcripts.”); see also Tr. 1520-22 (waiving additional testimony by Plaintiff at the May
6, 2013 hearing).)
The claimant allege[d] an inability to work due to the presence of an
Arnold-Chiari malformation Type [I], seizures, a mass on [the] right
frontal lobe of the brain, diverticulitis, memory loss, severe
headaches, loss of use of the right side and severe pain in the right
elbow. The claimant reported that she ha[d] to lie down for extended
periods of time. The claimant noted that she ha[d] lost feeling on the
right side from her face to her waist; she ha[d] mini-seizures; her
diverticulitis cause[d] severe stomach and abdominal pain; she ha[d]
tumors in her uterus. The claimant stated that she [was] in constant
pain. The claimant reported that she [could not] lift due to pain in the
back and neck. The claimant further noted that she ha[d] a hard time
concentrating and remembering anything. The claimant allege[d]
that she [was] unable to stand, sit or [lay] down for any length of
time. The claimant noted that she [could] hardly use her right arm
due to severe elbow pain (Exhibit 2E). Exhibit 5A/10.
(Id.) The ALJ then found that while Plaintiff’s “medically determinable
impairments could reasonably be expected to cause the alleged symptoms[,] . . .
[her] statements concerning intensity, persistence and limiting effects of these
symptoms [were] not entirely consistent with the medical evidence and other
evidence in the record.” (Id.)
In assessing Plaintiff’s RFC, the ALJ adopted the medical summaries
contained in the January 13, 2011 and August 9, 2013 ALJ decisions, and noted
the following:
As stated in the prior [ALJ’s] decision at Exhibit 5A: “The claimant
has seen Dr. James Connor for quite a few years as her primary
care physician (Exhibits 1F, 2F, 8F and 34F)[,] mainly for routine
medical problems. There is no indication in the record that this long
time treating physician noticed any problems with the claimant’s
cognition or memory prior to the lapse of her date last insured (DLI).
The doctor thought that the claimant might have some diverticulitis;
however, an October 2006 abdominal x-ray was unremarkable
(Exhibit 2F/1-2) and a prior CT scan of the abdomen in August 2005
was only noteworthy for some ovarian cysts (Exhibit 3F/43).” The
claimant received a conservative treatment regimen from this
primary care treating physician, which included a narcotic pain
medication regimen (including Percocet, and later Lortab). However,
Dr. Connor’s clinical exam findings, as well as his progress notes do
not document significant findings indicative of disabling limitations for
12 continuous months, or an inability to work in any capacity at SGA
levels.11
(Tr. 1297.) The ALJ then noted negative findings following various X-rays, but
stated that a “February 2008 CT [scan] of the abdomen and pelvis showed some
possible uterine fibroids[,]” even though “[a] later similar exam performed well
after the DLI in April 2011 did not show any significant abnormalities.” (Id.) The
ALJ also noted that Plaintiff had a hysterectomy in October 2009 “with
improvement.” (Id.) Following Plaintiff’s slip and fall at a retail store in July 2008,
the ALJ noted that Plaintiff had normal X-ray results and a normal CT scan of the
head, but noted that:
An August 2008 MRI of the right elbow showed some intra-articular
effusion (Exhibits 4F/4) and an MRI of the lumbar spine only
demonstrated some mild facet arthropathy at the L4 to S1 levels
(Exhibit 4F/3). A cervical spine and brain MRI done at the same
time showed evidence of a cervical syrinx12 consistent with a
11 Although the ALJ does not mention this, however, the record reflects that in
2006, Dr. Connor determined that Plaintiff’s case was too complicated and encouraged
Plaintiff to follow up with another doctor. (Tr. 789 (“I find that your case is too
complicated for me to follow-up. Thus[,] we encourage you to find another physician to
follow-up with your care.”).) Moreover, Dr. Connor also noted Plaintiff’s difficulty in
obtaining necessary medical treatment due to lack of medical insurance and financial
difficulties. (See, e.g., Tr. 618, 742, 744.)
12 Syringomyelia is a disorder associated with an Arnold Chiari malformation in
which a syrinx, a tubular cyst filled with cerebrospinal fluid (CSF), forms within the
central canal of the spinal cord. See https://www.ninds.nih.gov/Disorders/Patient-
Caregiver-Education/Fact-Sheets/Chiari-Malformation-Fact-Sheet (last visited
September 19, 2019). “The growing syrinx destroys the center of the spinal cord,
resulting in pain, weakness, and stiffness in the back, shoulders, arms, or legs. Other
possible Arnold-Chiari I malformation (Exhibit 4F/1-2), which was
confirmed on a later November 2010 MRI of the brain (exhibit 28F).
September 2008 nerve conduction studies performed by Dr. Kilgore
to check for any ulnar nerve problem or carpal tunnel syndrome
were negative (Exhibit 5F/16-17). An abdominal sonogram done in
July 2009 was normal (Exhibit 11F/44). Neurological exams were
largely within normal limits with no problems noted with cognition or
memory (Exhibits 5F/1, 11, 14-15[,] and 6F).
(Id.)
In assessing Plaintiff’s RFC, the ALJ gave little weight to the non-
examining opinions of State agency medical consultants Gary Carter, D.O. and
Donald Morford, M.D., who found that Plaintiff could perform a reduced range of
sedentary work. (See Tr. 1297; see also Tr. 704-11 (Physical Residual
Functional Capacity Assessment by Dr. Carter dated May 13, 2009); Tr. 1005-12
(Physical Residual Functional Capacity Assessment by Dr. Carter dated
December 18, 2009).) The ALJ explained that “the findings [related to]
[Plaintiff’s] neck and back are minimal, and they would not preclude a reduced
range of light work”; rejected Plaintiff’s alleged inability to lift or carry as
“inconsistent with the conservative course of treatment that the claimant has
received, as well as the objective findings”; and stated that Plaintiff’s “physical
examinations [were] also not consistent with a reported inability to lift.” (Tr. 1297-
98.)
symptoms may include a loss of the ability to feel extremes of hot or cold, especially in
the hands. Some individuals also have severe arm and neck pain.” Id.
The ALJ also gave little weight to the opinions of the State agency
consultative medical examiner, Steven Dingfelder, Ph.D. (1298-1300.) The ALJ
addressed Dr. Dingfelder’s opinions, based on his June 15, 2019 clinical
evaluation and mental status examination of Plaintiff, as follows:
[During the examination], the claimant appeared to answer
questions to the best of her ability, but had trouble remembering
specific information, such as dosage of medications and specific
dates of life events (Exhibit 9F/1). The claimant stated that she was
an executive housekeeper at the Days Inn in St. Augustine Beach.
[Her] [d]uties included managing other housekeepers, sweeping the
parking lot, and cleaning up the breakfast bar (Exhibit 9F/2). The
claimant stated that she usually got along with people at her work
and was dependable—performing more than what was required
(Exhibit 9F/3). The claimant also denied any history of mental health
problems or treatment (Exhibit 9F/4).
On mental status examination, the claimant was pleasant and
agreeable[,] but her speech was pressured. Thoughts were logical,
linear and goal directed. Concentration was reported as somewhat
compromised. There was moderate indication of memory problems
throughout the interview. The claimant reported that concentration
and persistence [were] compromised by her preoccupation with
chronic pain (Exhibit 9F).
In his report, Dr. Dingfelder stated that the claimant's prognosis
[was] guarded, noting:
... Ms. Knight-Thieme reports and appears to be in pain,
which is causing her considerable stress and anxiety. If
her medical problems are corroborated from collateral
information then she [genuinely] seems to be unable to
perform duties or tasks of a physical nature that has
been a big part of her previous work experience. In
addition, she appears to have memory loss and reports
some confusion or difficulty with comprehension and
understanding what is said to her. Further neurological
testing would be warranted to determine the nature of
her impairment in that area. (Exhibit 9F/6).
(Tr. 1298.)
The ALJ continued:
The undersigned notes that when asked by the clinician to explain
why she is disabled, the claimant did not report mental health issues
or reasons as a basis for disability, but rather, reported physical
complaints such as stomach pain, back problems, uterine fibroids,
and headaches. This is consistent with Dr. Dingfelder's consultative
report observations, which note that the claimant was able to provide
requested information to the mental health examiner without difficulty
and that her memory was not very much impaired, as she could
present a longitudinal work history, as well as the duties that were
required as part of her various jobs. While the claimant had trouble
remembering specific information such as dosage of medications
and specific dates of life events, and reported that concentration and
persistence [was] compromised by her preoccupation with chronic
pain[,] [t]he claimant was also able to relate her family history and
important aspects of her life [] without noticeable difficulty. She also
specifically denied any history of mental health problems or
treatment (Exhibit 9F).
(Id.)
The ALJ rejected Dr. Dingfelder’s opinions as based on Plaintiff’s
“subjective statements regarding memory and concentration limitations, while the
report [did] not detail diagnostic or specific cognitive measures that were offered
to the claimant to support a significant level of compromise in the ability to
remember and concentrate, and secondary to pain as reported by the claimant.”
(Tr. 1299; Tr. 798-803.) The ALJ emphasized that Dr. Dingfelder’s opinions were
based largely on Plaintiff’s subjective complaints and that his conclusions
regarding her physical impairments were beyond the scope of his expertise. (Id.)
The ALJ also noted that Dr. Dingfelder found Plaintiff had a slight cognitive
impairment, but could function within normal limits. (Id.) Thus, the ALJ
concluded:
the evidence [was] not fully consistent with the claimant’s subjective
complaints, or the opined level of severity indicated by Dr. Dingfelder
in his consultative report. The undersigned also notes that Dr.
Dingfelder did not diagnose a cognitive disorder but rather an
anxiety disorder, [] despite the fact that his clinical exam did not
disclose any anxiety type symptoms. Because Dr. Dingfelder's
report is both contradictory and inconsistent with the overall
evidence, only little weight can be accorded.
(Tr. 1299-1300.)13
The ALJ also gave limited weight to the State agency mental status
assessments completed by Gary Buffone, Ph.D. and Jill Rowan, Ph.D., non-
examining medical consultants. (Tr. 1300 (citing Tr. 862-79 (Dr. Buffone’s July
22, 2009 Mental Residual Functional Capacity Assessment and Psychiatric
Review Technique)14; Tr. 919-36 (Dr. Rowan’s October 19, 2009 Mental Residual
Functional Capacity Assessment and Psychiatric Review Technique)).) In
making this determination, the ALJ found that there was an absence of
“longitudinal objective evidence that the claimant had significant memory
difficulties based on her interactions with her primary care physician, other
treating and examining medical sources and the findings of the June 2009
psychological assessment.” (Tr. 1300.) Additionally, the ALJ noted that the
13 The ALJ noted that Plaintiff demonstrated only a mild cognitive impairment
with a score of 25/28 on her 2010 and 2011 Mimi Mental Status Exams (MMSE). (Tr.
1300 (citing Tr. 1147-57).) However, it is uncertain whether the exam was administered
multiple times or whether it was administered only once on November 4, 2010, since the
test questions and scores are identical in each report, and were automatically included
in subsequent medical reports. (Tr. 1147-57.)
14 Dr. Buffone noted Plaintiff’s GAF score of 50, denoting serious impairment,
e.g., unable to keep a job. (Tr. 878.)
MMSE results “showed only slight or mild cognitive impairment and there [was]
no evidence [of] any ‘moderate’ problems in her memory, concentration or
attention, as such would have been found by the Folstein MMSE testing.” (Id.)
Next, the ALJ stated that although Plaintiff also saw Stephanie Epting,
D.O. at the Florida Spine Care for back pain, “there were no significant findings”
on exam, and concluded that Plaintiff received “a conservative treatment regimen
of medication including Lortab and a muscle relaxer, with trigger point
injections.”15 (Id.) The ALJ also assessed records from Bao T. Pham, D.O. with
Florida Spine Care, and noted the following:
Records from the Florida Spine Center and Dr. Bao Pham (a
physiatrist)16 show treatment for her musculoskeletal injuries
sustained after her slip and fall accident (Exhibits 23F and 34F).
Findings are generally consistent with soft tissue injuries treated
successfully with injective therapy. The prescribed medications were
noted to be controlling her pain with no adverse side effects. There
are no significant physical exam findings and the notes are largely
repetitive from one progress note to the next, further suggesting
consistent pain control.
(Tr. 1301.)
15 The record reflects that Plaintiff saw Dr. Epting on August 18, 2008 and July
21, 2009. (Tr. 883-88.) Dr. Epting diagnosed Plaintiff with lateral epicondylitis and
cervicalgia and noted that, upon examination and palpitation of the cervical spine, the
right mid-scapular region and right upper trapezius area was exquisitely tender. (Tr.
885, 887.) Dr. Epting’s reports also noted decreased range of motion and an upper
extremity exam of Plaintiff revealed spasm, tenderness, and trigger points, bilaterally.
(Id.)
16 The record shows that Dr. Pham administered Plaintiff’s trigger point injections
at Florida Spine Care between September 15, 2009 and August 18, 2010. (Tr. 885-88;
Tr.1064-1103; Tr. 1301.)
In assessing the opinion evidence of Plaintiff’s treating neurologist Mark K.
Emas, M.D., the ALJ stated as follows:
In February 2009, the claimant presented to Dr. Mark Emas, a
neurologist, for evaluation of injuries she sustained in an earlier July
2008 slip and fall at a dollar store (Exhibit 22F/39-42). She also
complained of headaches and back and neck pain as well as some
absence seizures. Neurological and musculoskeletal exams showed
some minor findings but no substantial abnormalities; the claimant’s
medications were adjusted and additional testing ordered. A
follow up EEG was viewed as again mildly abnormal but no other
problems were observed (Exhibit 22F/11, 38). No epileptiform
activity was noted, and while possible etiologies could not be
excluded, it was noted that the prominent beta activity identified
during the study suggested an underlying medication effect. Multiple
neurological exams performed by Dr. Emas demonstrate[d] the
claimant’s memory and recall to be intact, with her complaints
appearing to be myofascial in nature relative to her musculoskeletal
issues. The claimant’s medication[s] [] prescribed by Dr. Emas,
some of which were taken as needed, included Lortab, Fioricet,
Naprosyn and Ativan.
Dr. Emas’ progress notes contain some inconsistencies. His own
physical neurological exams show no recall or memory deficits but
also indicate[d] that the claimant reported memory problems since
her slip and fall accident at a dollar store on July 2, 2008. He
suggest[ed] that further neuropsychological testing [was]
recommended in May 2009, but state[d] that he and the claimant
were unable to obtain such testing secondary to unspecified
insurance reasons (Exhibit 22F/12, 28). However, both the
recommendation and assessment [did] not appear entirely
consistent with the MMSE performed at the June 2009 psychological
assessment as detailed above, and Dr. Emas’ objective neurological
findings, which support[ed] no significant cognitive or mental
impairment deficits. The claimant’s “seizures” were better controlled
on Dilantin. There is nothing to suggest that the claimant had an
anxiety disorder other than the comments noted by Dr. Emas based
on the claimant’s subjective reports.17 For example, the claimant []
17 On November 5, 2009, Dr. Emas diagnosed Plaintiff with, inter alia, “[p]ost-
traumatic anxiety disorder secondary to the fall on 07/02/08” and stated that Plaintiff
sought no ongoing mental health counseling for any such anxiety
issues during the time period at issue, and as indicated previously,
there is nothing in his own progress notes to suggest any cognitive
dysfunction. . . .
(Tr. 1300-01.)
The ALJ then noted that a neurological assessment conducted by Dr.
Machado in November 2010 was “largely within normal limits” and concluded that
“[t]here [were] no further notes from this evaluating source indicating further
treatment concerning her Arnold-Chiari I malformation, further establishing
satisfactory management of symptoms.”18 (Tr. 1301.) Although not an
acceptable medical source, the ALJ also assessed the opinions of Joanne Puleo,
ARNP, with the Primary Care Center at Flagler Hospital, that Plaintiff was totally
disabled and unable to participate in any meaningful or gainful employment, but
gave these opinions little weight as based on Plaintiff’s subjective complaints and
as inconsistent with the overall medical evidence.19 (Id.)
The ALJ also evaluated the medical opinions of Kenneth Cloninger, a
testifying medical expert and board-certified neurosurgeon who testified at
Plaintiff’s hearing on October 19, 2010. (Id.) The ALJ gave great weight to Dr.
“continue[d] to have increased anxiety, which seem[ed] to revolve around her pain,
cognitive dysfunction and limitations thereof.” (Tr. 1033, 1022.)
18 However, the record actually reflects that on November 23, 2010, Dr. Machado
referred Plaintiff to see another specialist for her Arnold-Chiari I malformation and
syrinx, discussed infra. (See Tr. 1119-21.)
19 In a letter dated March 29, 2012, ARNP Puleo noted that Plaintiff’s symptoms
were possibly being caused by her Arnold Chiari Type I malformation and associated
syrinx, for which she needed surgery. (Tr. 1232.)
Cloninger’s opinions that Plaintiff could perform a reduced range of light
exertional work because the doctor “offered a cogent medical rationale, and the
evidence of record supports his stated findings, which are consistent with the
claimant's treatment records, objective and diagnostic findings, course of
conservative treatment and overall evidence as discussed herein.” (Id.)
The ALJ then evaluated the medical opinions of Dr. Baptiste-Boles, a State
agency examining psychologist, but rejected her opinions regarding Plaintiff’s
work limitations as being based on testing performed in 2013, “two years and five
months after the date last insured[,]” and based on “symptoms of depressed
mood, [low] energy, and anhedonia, which were established as mild during the
adjudicative period through the date last insured.” (Id.) The ALJ also found that
the increased limitations opined by Dr. Baptiste-Boles were consistent with a
decline in Plaintiff’s functioning after the date last insured and after 2012, which,
the ALJ concluded, was consistent with MMSE testing in 2009, 2010, and 2011,
which demonstrated “only a mild cognitive impairment.” (Tr. 1305 (citing
Plaintiff’s MMSE score of 25/28 where “a score of 23 or lower would be indicative
of a cognitive impairment”).) The ALJ accorded only partial weight to Dr.
Baptiste-Boles’s medical opinions because “they appear[ed] to be largely based
upon evidence obtained after the date last insured and subjective complaints that
are not entirely consistent with the overall evidence through the date last
insured.” (Id.) The ALJ gave significant weight to Dr. Baptiste-Boles’s diagnoses
established prior to the DLI and accorded little weight to “other opinions,
including the opined severity of the impairments that are inconsistent with the
evidence as of the date last insured.” (Id.)
The ALJ also pointed to apparent inconsistencies in Dr. Baptiste-Boles’s
reports, including an apparent inconsistency between Plaintiff’s GAF score of 59
and Plaintiff’s unremarkable mental status examination. (Id.) The ALJ also
reasoned that a GAF score of 59 was not consistent with a “marked” limitation in
Plaintiff’s “ability to understand, remember and carry out complex instructions as
well as to make judgments on work related decisions.” (Id.) Moreover, the ALJ
noted that Plaintiff had “not received the type of mental health treatment one
would expect for a disabled individual, or an individual with significant mental
health symptomology during the adjudicative period through the date last
insured.” (Id.) The ALJ also pointed to Dr. Baptiste-Boles’s observation that
“[t]here was no reported impact of current mental health symptoms on being able
to return to work.” (Id.)
The ALJ then assessed Dr. Rabin’s opinions, but accorded them little
weight because “[t]he overall longitudinal evidence [did] not support the hearing
testimony or opined severity of limitations of the written Mental Residual
Functional Capacity (RFC)” offered by Dr. Rabin after the hearing. (Id.) The ALJ
found:
The overall evidence of record consistently demonstrated only a mild
cognitive impairment that has not been impacted to a disabling
degree by psychosomatic or other mental impairment factors or
symptoms during the adjudicative period through the date last
insured. These findings have been consistent across multiple
examiners, and across a wide variety of medical specialties,
including general family practice, neurology, gastroenterology and
clinical psychology. While the mental status evaluation done by the
consultative examiner in 2013 shows a progression in symptoms
(and since 2012 records received from Stewart Marchman), these
findings occurred years after the date last insured in 2010. The 2013
findings were also noted to be secondary to memory problems and
symptoms such as depressed mood, energy and anhedonia, which
are not established by the evidence as significant issues through the
date last insured as discussed above herein. ([S]ee Exhibit 40F).
(Id.)
The ALJ concluded that Plaintiff’s mental symptomology was not
supported for the adjudicatory time period and that her pain was well-controlled.
(Tr. 1307.) The ALJ found that Plaintiff was “able to work within the limitations in
the above residual functional capacity.”20 (Id.) The ALJ also noted that she had
accounted for Plaintiff’s impairments by limiting Plaintiff to a reduced range of
light exertion work, but that the evidence did not support any further limitations.21
(Id.) In sum, the ALJ concluded that the RFC was “supported by the course of
conservative treatment, results of diagnostic testing, neurological and
20 The ALJ also gave little weight to the medical opinion of Manley W. Kilgore, II,
M.D., P.A., Plaintiff’s treating neurologist, that “claimant had not reached maximum
medical improvement and [was] unable to work.” (Tr. 1307; see also Tr. 676, 682, 684.)
The ALJ reasoned that Plaintiff’s “medical complaints [had] been treated conservatively
and the record indicate[d] that the claimant’s pain complaints ha[d] been managed with
medication.” (Id.) The ALJ also noted that Plaintiff received treatment for
musculoskeletal injuries sustained after a fall and that these finding were “generally
consistent with soft tissue injuries treated conservatively with injective therapy.” (Id.)
21 The ALJ also found that medical records from 2014-2016 had no bearing on
Plaintiff’s functioning during the adjudicative period and, thus, accorded them little
weight and only considered them for longitudinal history purposes. (Tr. 1307.)
musculoskeletal assessments, examination findings, and the overall evidence for
the reasons discussed herein.” (Id.)
The ALJ then determined that, based on the testimony of the vocational
expert (“VE”), Plaintiff was capable of performing her past relevant work as a
cleaner and that this work did not require Plaintiff to perform work-related
activities precluded by the RFC. (Id.) In the alternative, at step five, the ALJ
found that there were other jobs in the national economy that Plaintiff could
perform. (Tr. 1308.) Based on Plaintiff’s age, education, work experience, RFC,
and VE testimony, the ALJ found that Plaintiff could perform light unskilled work
(such as a laundry folder, inspector and hand packager, and electronics worker)
and that this work existed in significant numbers in the national economy. (Tr.
1308-09.) Thus, the ALJ found that Plaintiff was not disabled at any time from
March 30, 2006, the alleged onset date, through September 30, 2010, the date
last insured. (Tr. 1309.)
D. Analysis
Here, Plaintiff argues that the ALJ failed to properly credit the opinions of
Dr. Rabin, a testifying psychological expert, and Dr. Baptiste-Boles, an examining
psychologist. Specifically, Plaintiff argues that the ALJ improperly relied on “his
lay analysis of the raw medical data, and asserted ‘inconsistencies’ in the
evidence, to which Dr. Rabin explicitly responded, to deny benefits.” (Doc. 16 at
24-25.) Plaintiff further argues that the ALJ’s reasons for discrediting the opinion
of Dr. Rabin, and the opinion of Dr. Baptiste-Boles by extension, mainly that they
were offered outside the adjudicative period and that the opinions were
inconsistent, were flawed and constitute a reversible error. (Id. at 22-25.)
Plaintiff also argues that the ALJ erred by failing “to include all of the mental
limitations identified by the record” in the RFC. (Id. at 20.) Based on a review of
the record as a whole, the Court agrees with Plaintiff that a remand is necessary.
In giving little weight to Dr. Rabin’s opinions, the ALJ found that “[t]he
overall longitudinal evidence did not support the hearing testimony or opined
severity of limitations of the written Mental Residual Functional Capacity (RFC)
for this expert witness . . . . The overall evidence of record consistently
demonstrated only a mild cognitive impairment, that had not been impacted to a
disabling degree by psychosomatic or other mental impairment factors or
symptoms during the adjudicative period through the date last insured.” (Tr.
1306.) As the record demonstrates, Dr. Rabin correlated Plaintiff’s psychological
and mental impairments with her pain and Arnold-Chiari I malformation, and
specifically opined that that Plaintiff’s impairments, in combination, would
preclude Plaintiff from being able to complete an 8-hour workday and a 40-hour
workweek.22 (See Tr. 1516; see also Tr. 1519-20.) The ALJ’s conclusion that
Plaintiff’s pain, Arnold-Chiari I malformation, and possible syrinx were
22 In considering only some of the restrictions identified by Dr. Rabin, the VE
testified that all work would be eliminated if Plaintiff was unable to “remember work-like
procedures, maintain regular attendance and be punctual with customary standards,
tolerances, and perform at a consistent pace without an unreasonable number and
length of rest periods, and respond appropriately to changes in a routine work setting”
for up to 20 percent of a work day. (Tr. 1337.)
satisfactorily managed is not supported by substantial evidence. (Tr.1301,
1307.) The ALJ determined that Plaintiff’s Arnold-Chiari I malformation and
syrinx were satisfactorily controlled based on lack of notes from Dr. Machado.
However, in November 2010, Dr. Machado actually referred Plaintiff to a
neurosurgeon, but, due to lack of insurance and funds, Plaintiff was unable to
see the neurosurgeon.23 (Tr. 1119-21, 1127.) Plaintiff also consistently
complained to her medical providers of severe headaches and debilitating pain,
despite receiving palliative treatment.24 Moreover, the record consistently
23 On November 23, 2010, Dr. Machado informed Dr. Perumal and PCC, the
referring medical provider, of his findings with respect to his examination and evaluation
of Plaintiff, as follows:
The patient has many symptoms that start with neck pain and occipital
pain, which radiates to the upper extremities. She feels “pressure in the
head” and when she lays down[,] the pressure gets worse.
…
Impression
I have reviewed the MRI of the cervical spine and brain, both of which
show[] an Arnold Chiari Malformation, with evidence of syringomyelia, very
high in the cord at the level of C1, C2. Whether this represents a syrinx, is
questionable.
Recommendations
This patient needs to be evaluated in Gainesville and I have made a
referral to Dr. Friedman.
(Tr. 1119-21 (emphasis added).) Rather than establish that Plaintiff’s conditions were
“within normal limits,” as noted by the ALJ (Tr. 1301), this evidence showed that Plaintiff
needed further evaluation.
24 While the record states that “[t]he pain medications [were] controlling the
patient’s pain well with no noted side effects or problems,” Plaintiff still presented with
complaints of increased pain. (See, e.g., Tr. 1064 (noting Plaintiff’s June 15, 2010
complaints of an “increase in shoulder pain and burning sensation in her T spine,”
stating “the highest pain level since [the] last visit was 10 out of 10, and the lowest was
8 out of 10,” and complaining of “intermit[ent] shooting pain in her [l]umbar spine
shooting upwards toward her [c]ervical [s]pine” and [] a headache for 15 days straight).)
showed that Plaintiff had difficulty obtaining adequate medical care during the
adjudicative period, and afterwards, due to lack of medical insurance and lack of
funds.25
To the extent the ALJ rejected Dr. Rabin’s and Dr. Baptiste-Boles’s
opinions because they were issued after the DLI, these opinions appear to be
highly relevant to Plaintiff’s disability determination because the lack of insurance
delayed or impeded adequate medical testing and treatment during the
adjudicative period.26 See Lingenfelser v. Comm’r of Soc. Sec., No. 6:16-cv-921-
Orl-DCI, 2017 WL 4286546, at *7 (M.D. Fla. Sept. 27, 2017) (“When determining
whether a claimant is disabled, an ALJ should consider evidence postdating an
25 The record contains numerous references to Plaintiff’s lack of insurance and
financial difficulties, which impeded adequate medical treatment. (See, e.g., Tr. 1033
(Dr. Emas’s November 5, 2009 report noting: “Suspected partial complex seizure
disorder with left cerebral focus occurring after the fall on 07/02/08. The patient
continues to have intermittent periods of decreased responsivity. The patient has been
taking Dilantin, although I discussed my concern that she has not had any blood work.
The patient and her husband are aware that Dilantin can cause liver and bone marrow
toxicity with risks of morbidity and mortality with this. The patient was to follow up with a
local lab to see how much money it would take to have her drug level and blood work
performed. I discussed my concern that she may not be able to continue the
medication if we are not able to monitor her blood levels or at least CBC and chemistry
profile.”); Tr. 1022 (Dr. Emas’s May 24, 2010 notes stating that Plaintiff “was scheduled
to have neuropsychological testing; however, this could not be performed secondary to
insurance reasons”); see also, e.g., Tr. 502-03 (noting that Plaintiff’s husband cared for
her and that they often lacked funds for her medical care, including needed MRI and
CAT scans, as they survived only on his disability benefits of $904 per month); Tr. 621
(noting, on February 13, 2006, that a medically recommended colonoscopy was cost-
prohibitive).)
26 Additionally, Dr. Rabin specifically noted that his opinions were based on his
evaluation of the medical evidence for the adjudicative period (Tr. 1479-80), and that Dr.
Baptiste-Boles’s evaluation supported his conclusion that Plaintiff would “have great
difficulty staying on task for a full 40-hour workweek.” (Tr. 1515-16.)
individual’s date of last insured as it may be relevant so long as it bears ‘upon the
severity of the claimant’s condition before the expiration of his or her insured
status.’”).
Of note, the medical treatment records reflect that by 2012, Plaintiff had
been diagnosed with brain compression in connection with her Arnold-Chiari I
malformation and it had been determined that she required surgery, but was
unable to obtain this treatment due to lack of insurance and funds.27 (See Tr.
1264; see also Tr. 1618 (“Refilled tramadol/butalbital[.] [W]e are left with really
no choice but to continue filling this [patient’s] [medications] while she is awaiting
appeal, as she is in intractable pain.”); Tr. 1622 (“Again advised [patient] of the
life threatening seriousness of Arnold-Chiari malformation, and that her pain and
cough is coming from compression of her brain, and she needs to see
neurosurgery ASAP. Patient was advised to go immediately to the Emergency
Department with severe headache or altered mental status. [P]atient is unable to
get any help from social services and is awaiting disability[;] we will refill [her
medications] again.”); Tr. 1273 (“Again advised [patient] [of] the serious nature of
Arnold-Chiari and her pain and symptoms such as coughing every 10 seconds
27 In a letter dated March 29, 2012, ARNP Puleo noted that Plaintiff had been a
patient since June 2009. (Tr. 1232.) Ms. Puleo noted that that Plaintiff had been
diagnosed with Arnold Chiari Type I malformation with an associated syrinx of the
cervical spinal cord and that this condition was suspected of being the cause of
Plaintiff’s “frequent and debilitating cephalgia, cervical radiculopathy, degenerative disc
disease of the cervical spine, altered sensation including pain and numbness in her
upper extremities, extreme fatigue, and emotional lability.” (Id.)
are all likely resulting from brain compression. Advised [patient] to go to ED if
any symptoms worsen. Advised [patient] pain meds may not be the best idea[,]
but all we can do while waiting for her disability, as the neurosurgery voucher has
been denied by social services, is treat her symptoms . . . .”).)
In giving only partial weight to Dr. Baptiste-Boles’s opinions, the ALJ found
that “they appear[ed] to be largely based upon evidence obtained after the date
last insured and subjective complaints that [were] not entirely consistent with the
overall evidence through the date last insured.” (Tr. 1305.) The ALJ discounted
Dr. Baptiste-Boles’s opinions regarding Plaintiff’s work limitations as being based
on testing performed in 2013, “two years and five months after the date last
insured[,]” and based on “symptoms of depressed mood, energy, and anhedonia,
which were established as mild during the adjudicative period through the date
last insured.” (Id.) Moreover, in rejecting Dr. Baptiste-Boles’s opinions, the ALJ
noted that Plaintiff had “not received the type of mental health treatment one
would expect for a disabled individual, or an individual with significant mental
health symptomology during the adjudicative period through the date last
insured.” (Id.)
However, the ALJ’s reasoning is not supported by substantial evidence
where the overall medical record for the period in question reflects that Plaintiff
suffered from mental and emotional impairments, her medical providers
prescribed medications for her mental health symptoms, and that Plaintiff was
uninsured and had difficulty obtaining medical care due to lack of financial
resources. (See, e.g., Tr. 1023 (noting a May 24, 2010 referral to a psychologist
for anxiety); Tr. 1028 (noting, on January 5, 2010, Plaintiff’s prescription for
Cymbalta for depression and chronic pain was filled and noting that Plaintiff
experienced severe depressive symptoms, including insomnia, anorexia,
anhedonia, reclusiveness, and emotional lability since her mother’s death); Tr.
1033 (citing a November 5, 2009 prescription for Ativan to treat Plaintiff’s
anxiety); Tr. 1049 (noting, on May 18, 2009, Plaintiff’s difficulties with memory
and concentration and recommending neuropsychological testing); see also Tr.
688 (treatment notes from Dr. Kilgore dated August 27, 2008 and noting
Plaintiff’s “mood and personality changes, irritability, [and] flying off the handle
[without] provocation”).) Thus, the undersigned finds that the ALJ’s reasons for
discounting Dr. Baptiste-Boles’s medical opinions related to Plaintiff’s mental
limitations are not supported by the record as a whole.
In sum, the ALJ’s reasons for discounting Dr. Rabin’s and Dr. Baptiste-
Boles’s opinions are not supported by substantial evidence. “The ALJ is required
to consider the opinions of non-examining state agency medical and
psychological consultants because they ‘are highly qualified physicians and
psychologists, who are also experts in Social Security disability evaluation.’”
Milner v. Barnhart, 275 F. App’x 947, 948 (11th Cir. 2008) (per curiam); see also
SSR 96-6p (stating that the ALJ must treat the findings of State agency medical
consultants as expert opinion evidence of non-examining sources). While the
ALJ is not bound by the findings of non-examining physicians, the ALJ may not
ignore these opinions and must explain the weight given to them in his decision.
SSR 96-6p. However, as shown above, the ALJ failed to adequately consider
the medical evidence as a whole in rejecting or assigning little weight to the
medical opinions of Dr. Rabin and Dr. Baptiste-Boles, State agency experts.
Accordingly, it is ORDERED:
1. The Commissioner’s decision is REVERSED and REMANDED for
further proceedings consistent with this Order, pursuant to sentence four of 42
U.S.C. § 405(g) with instructions to the ALJ to: (a) reconsider the opinions of Dr.
Rabin and Dr. Baptiste-Boles in light of the record as a whole; (b) re-evaluate
Plaintiff’s RFC assessment, if necessary; and (c) conduct any further
proceedings deemed appropriate.
2. The Clerk of Court is directed to enter judgment accordingly,
terminate any pending motions, and close the file.
3. In the event that benefits are awarded on remand, any § 406(b) or §
1383(d)(2) fee application shall be filed within the parameters set forth by the
Order entered in In re: Procedures for Applying for Attorney’s Fees Under 42
U.S.C. §§ 406(b) & 1383(d)(2), Case No.: 6:12-mc-124-Orl-22 (M.D. Fla. Nov.
13, 2012). This Order does not extend the time limits for filing a motion for
attorney’s fees under the Equal Access to Justice Act, 28 U.S.C. § 2412.
DONE AND ORDERED in Jacksonville, Florida, on September 25, 2019.
: MONTE C, RICHARDSON
UNITED STATES MAGISTRATE JUDGE
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Counsel of Record