Ruybal v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

ROBIN RUYBAL,

Plaintiff,

v. Case No. 8:18-cv-2273-T-SPF

ANDREW M. SAUL,

Commissioner of the Social

Security Administration,1

Defendant.

/

ORDER

Plaintiff seeks judicial review of the denial of her claim for a period of disability

and disability insurance benefits (“DIB”). As the Administrative Law Judge’s (“ALJ”)

decision was not based on substantial evidence and failed to employ proper legal

standards, the Commissioner’s decision is reversed.

I. Procedural Background

Plaintiff filed an application for a period of disability and DIB (Tr. 181-82). The

Commissioner denied Plaintiff’s claims both initially and upon reconsideration (Tr. 81,

98). Plaintiff then requested an administrative hearing (Tr. 116). Per Plaintiff’s request,

the ALJ held a hearing at which Plaintiff appeared and testified (Tr. 31-68). Following

the hearing, the ALJ issued an unfavorable decision finding Plaintiff not disabled and

1 Andrew M. Saul became Commissioner of Social Security on June 17, 2019. Pursuant

to Rule 25(d) of the Federal Rules of Civil Procedure, Mr. Saul is substituted for Acting

Commissioner Nancy A. Berryhill as Defendant in this suit.

accordingly denied Plaintiff’s claims for benefits (Tr. 10-22). Subsequently, Plaintiff

requested review from the Appeals Council, which the Appeals Council denied (Tr. 1-6).

Plaintiff then timely filed a complaint with this Court (Doc. 1). The case is now ripe for

review under 42 U.S.C. § 405(g).

II. Factual Background and the ALJ’s Decision

Plaintiff, who was born in 1961, claimed disability beginning February 1, 2011 (Tr.

181).2 Plaintiff obtained a college education (Tr. 239). Plaintiff’s past relevant work

experience was as an officer in the U.S. Army, which included work as a logistics officer,

commander, and healthcare recruiter (Tr. 226, 239). Plaintiff alleged disability due to

lupus, generalized anxiety disorder, dizziness, chronic fatigue, and wide-spread pain (Tr.

238).

In rendering the administrative decision, the ALJ concluded that Plaintiff met the

insured status requirements through September 30, 2022, and had not engaged in

substantial gainful activity since July 1, 2016, the amended onset date (Tr. 12). After

conducting a hearing and reviewing the evidence of record, the ALJ determined Plaintiff

had the following severe impairments: history of degenerative disc disease in the cervical,

thoracic, and lumbar spines, status-post cervical fusion; history of cervical and lumbar

radiculopathy; cervicalgia, migraine headaches, and torticollis; system lupus

erythematosus (“SLE”); history of degenerative joint disease of the shoulders, status-post

right shoulder surgery; fibromyalgia and/or polyarthritis at multiple sites; and

2 Plaintiff amended her onset date to July 1, 2016 (Tr. 10, 32, 205). The amended onset

date appears responsive to a prior final determination of May 11, 2011, and Plaintiff’s

significant work earnings prior to July 2016 (Tr. 10, 32).

polyneuropathy (Tr. 13). Notwithstanding the noted impairments, the ALJ determined

Plaintiff did not have an impairment or combination of impairments that met or medically

equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (Tr.

16). The ALJ then concluded that Plaintiff retained a residual functional capacity

(“RFC”) to perform light work except she: requires a sit/stand option that allows her to

alternate between sitting and standing positions briefly every 30 to 60 minutes throughout

the workday; cannot climb ladders, ropes, or scaffolds; can frequently climb ramps and

stairs; can frequently stoop and occasionally balance, kneel, crouch, and crawl; can

frequently reach, handle, finger, and feel bilaterally; must avoid concentrated exposure to

extreme temperatures and excessive vibration; and must avoid all exposure to hazardous

machinery and unprotected heights (Tr. 16). In formulating Plaintiff’s RFC, the ALJ

considered Plaintiff’s subjective complaints and determined that, although the evidence

established the presence of underlying impairments that reasonably could be expected to

produce the symptoms alleged, Plaintiff’s statements as to the intensity, persistence, and

limiting effects of her symptoms were not entirely consistent with the medical evidence

and other evidence (Tr. 17).

Considering Plaintiff’s noted impairments, background, RFC, and the assessment

of a vocational expert (“VE”), the ALJ determined Plaintiff could perform her past

relevant work as a manager (procurement services), recruiter (personnel), and blood donor

recruiter as those occupations are performed generally in the national economy (Tr. 21).

Accordingly, based on Plaintiff’s age, education, work experience, RFC, and the

testimony of the VE, the ALJ found Plaintiff not disabled (Tr. 21-22).

III. Legal Standard

To be entitled to benefits, a claimant must be disabled, meaning he or she must be

unable to engage in 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. § 423(d)(1)(A). A “physical or mental impairment” is an impairment

that results from anatomical, physiological, or psychological abnormalities, which are

demonstrable by medically acceptable clinical and laboratory diagnostic techniques. 42

U.S.C. § 423(d)(3).

The Social Security Administration, in order to regularize the adjudicative process,

promulgated the detailed regulations currently in effect. These regulations establish a

“sequential evaluation process” to determine whether a claimant is disabled. 20 C.F.R.

§ 404.1520. If an individual is found disabled at any point in the sequential review, further

inquiry is unnecessary. 20 C.F.R. § 404.1520(a). Under this process, the ALJ must

determine, in sequence, the following: whether the claimant is currently engaged in

substantial gainful activity; whether the claimant has a severe impairment, i.e., one that

significantly limits the ability to perform work-related functions; whether the severe

impairment meets or equals the medical criteria of 20 C.F.R. Part 404 Subpart P,

Appendix 1; and whether the claimant can perform his or her past relevant work. If the

claimant cannot perform the tasks required of his or her prior work, step five of the

evaluation requires the ALJ to decide if the claimant can do other work in the national

economy in view of his or her age, education, and work experience. 20 C.F.R.

§ 404.1520(a). A claimant is entitled to benefits only if unable to perform other work.

Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987); 20 C.F.R. § 404.1520(g).

A determination by the Commissioner that a claimant is not disabled must be

upheld if it is supported by substantial evidence and comports with applicable legal

standards. See 42 U.S.C. § 405(g). Substantial evidence is “such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales,

402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)

(internal quotation marks omitted)); Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996).

While the court reviews the Commissioner’s decision with deference to the factual

findings, no such deference is given to the legal conclusions. Keeton v. Dep’t of Health &

Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994) (citations omitted).

In reviewing the Commissioner’s decision, the court may not re-weigh the evidence

or substitute its own judgment for that of the ALJ even if it finds that the evidence

preponderates against the ALJ’s decision. Bloodsworth v. Heckler, 703 F.2d 1233, 1239

(11th Cir. 1983). The Commissioner’s failure to apply the correct law, or to give the

reviewing court sufficient reasoning for determining that he or she has conducted the

proper legal analysis, mandates reversal. Keeton, 21 F.3d at 1066. The scope of review is

thus limited to determining whether the findings of the Commissioner are supported by

substantial evidence and whether the correct legal standards were applied. 42 U.S.C.

§ 405(g); Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002).

IV. Analysis

Plaintiff raises three claims on appeal: (1) whether the ALJ’s step four findings are

supported by substantial evidence; (2) whether the ALJ provided adequate justification

for rejecting her 100% VA disability rating; and (3) whether the ALJ’s reasons for rejecting

her treating rheumatologist’s opinion are supported by substantial evidence. Upon a

thorough review of the record and the parties’ submissions, the Court finds that the ALJ

failed to apply the correct legal standards and the ALJ’s decision is not supported by

substantial evidence.

A. Whether substantial evidence supports the ALJ’s step-four findings

Plaintiff argues that substantial evidence does not support the ALJ’s finding that,

given her RFC for light work with a sit/stand option, she could perform her past relevant

work. Although the ALJ’s decision states the finding was supported by the VE’s

testimony, Plaintiff asserts the hearing transcript does not reflect that because the

recording ended before the ALJ posed such a hypothetical question to the VE. Plaintiff

concedes that VE testimony is not required at step four and reliance on job descriptions

contained in the Dictionary of Occupational Titles (“DOT”) typically provides substantial

support for a step-four finding. She argues, however, that neither the VE’s testimony nor

the DOT support the ALJ’s finding in this case because the hearing transcript does not

include the pertinent testimony and the DOT does not account for a sit/stand option. As

a result, Plaintiff contends there is no record support for the ALJ’s finding and therefore a

remand for further findings is warranted (Doc. 18 at 11-14).

The Commissioner responds that substantial evidence supports the ALJ’s finding

that Plaintiff could perform her past relevant work. The Commissioner contends that

while VE testimony is not required at step four, the ALJ in this case relied on both the

VE’s testimony and the DOT. The Commissioner also contends that Plaintiff failed to

meet her burden of proof at step four because she did not allege or demonstrate that a

sit/stand option precludes the performance of her past relevant work (Doc. 18 at 14-16).

At the hearing, the ALJ asked the VE to characterize Plaintiff’s military and non-

military past work pursuant to the DOT (Tr. 21, 57-64). Upon review of Plaintiff’s work

history reports and hearing testimony, the VE provided the following DOT equivalents

for Plaintiff’s past work: blood donor recruiter (DOT # 293.357-010, light exertion); unit

clerk (DOT # 245.362-014, light exertion); management trainee (DOT # 189.167-018,

light exertion); manager, procurement services (DOT # 162.167-022, sedentary exertion);

and personnel recruiter (DOT # 166.267-038, sedentary exertion) (Tr.62-63).

The ALJ then asked the VE to consider whether a person of Plaintiff’s age,

education, and work experience, and who was limited to medium exertional work with

certain postural and environmental limitations—but did not specify a sit/stand option—

could perform any of Plaintiff’s past work or other work in the national economy (Tr. 64-

65). In response, the VE testified that such an individual could perform Plaintiff’s past

work as a blood donor recruiter, manager of procurement services, personnel recruiter,

and management trainee, and could perform three other jobs that existed in significant

numbers in the national economy (Tr. 65-67). Next, the ALJ added a limitation for

simple, routine, repetitive tasks, to which the VE responded the three other jobs would

still be available (Tr. 68). The transcript reveals that the recording of the hearing ended at

the outset of the ALJ’s next question (id.).

In his decision, the ALJ found at step four that Plaintiff was capable of performing

her past relevant work as a manager (procurement services), recruiter (personnel), and

blood donor recruiter, as the occupations are generally performed in the national economy

(Tr. 21). In doing so, the ALJ relied on the VE’s testimony that characterized Plaintiff’s

past relevant work pursuant to the DOT and the VE’s testimony in response to his

hypothetical questions (id). Specifically, the ALJ stated that the VE testified that an

individual who had an RFC to perform light work with a sit/stand option (and all of the

postural and environmental limitations contained in the ALJ’s RFC assessment) would

be capable of performing Plaintiff’s past relevant work as generally performed in the

national economy (id.). The ALJ also stated that while the VE testified the DOT does not

contemplate the existence of a sit/stand option, the VE indicated that aspect of his

testimony was based on his professional experience (Tr. 22). Based on the foregoing, the

ALJ determined that Plaintiff was not disabled (id.).

At the fourth step of the sequential analysis, the ALJ must determine whether the

claimant can perform her past relevant work.3 20 C.F.R. §§ 404.1520(f), 404.1560(b). “To

support a conclusion that the claimant is able to return to h[er] past relevant work, the

ALJ must consider all the duties of that work and evaluate the claimant’s ability to

perform them in spite of h[er] impairments.” Colon ex rel. Colon v. Comm’r of Soc. Sec., 411

3 The regulations define past relevant work as “work that you have done within the past

15 years, that was substantial gainful activity, and that lasted long enough for you to learn

to do it.” 20 C.F.R. § 1560(b)(1) (citing 20 C.F.R. § 1565(a)).

F. App’x 236, 239 (11th Cir. 2011) (citing Lucas v. Sullivan, 918 F.2d 1567, 1574 n.3 (11th

Cir. 1990)).4 However, at this step, “[t]he burden is on the claimant to show that [s]he

can no longer perform h[er] past relevant work as [s]he actually performed it, and cannot

perform work of that same kind.” Id. (citing Jackson v. Bowen, 801 F.2d 1291, 1293-94

(11th Cir. 1986)).

An ALJ may find a claimant not disabled if she can perform her previous work as

she actually performed it or if she can perform the job as ordinarily required by employers

throughout the national economy. See Social Security Ruling (“SSR”) 82-61, 1982 WL

31387, at *1-2 (Jan. 1, 1982) (stating that a claimant may retain the capacity to perform

her past relevant work as she actually performed it or as ordinarily required by employers

throughout the national economy). In determining whether a claimant can perform past

relevant work as performed generally in the national economy, an ALJ may rely on the

job descriptions contained in the DOT. Id. at *2 In instances in which the DOT or other

vocational resource material is insufficient to determine how a particular job is usually

performed, it may be necessary for an ALJ to utilize the services of a VE. Id.; see also 20

C.F.R. § 404.1560(b)(2) (recognizing that an ALJ may obtain VE testimony responsive to

a hypothetical question in determining whether a claimant can meet the demands of past

work as generally performed in the national economy). Thus, while an ALJ is not

required to obtain VE testimony at step four, see Lucas, 918 F.2d at 1573 n. 2, it is within

an ALJ’s purview to do so. See 20 C.F.R. § 404.1560(b)(2).

4 Unpublished opinions are not considered binding precedent but may be cited as

persuasive authority. 11th Cir. R. 36-2.

Upon review of the parties’ arguments and the ALJ’s decision, the Court concludes

that substantial evidence does not support the ALJ’s finding that Plaintiff was capable of

performing her past relevant work as those jobs are performed generally in the national

economy. As indicated above, the ALJ relied on the VE’s testimony to support his step-

four finding (and, in turn, his finding that Plaintiff was not disabled) but the transcript

from the administrative hearing does not include this testimony. Under these

circumstances, the Court is unable to determine whether substantial evidence supports the

ALJ’s dispositive step-four finding and remand is required. See Edwards v. Astrue, No. 09-

2120-CM-GBC, 2010 WL 2787847, at *4 (D. Kan. June 30, 2010) (recommending

remand where ALJ relied on VE testimony at steps four and five because a portion of

hearing transcript was missing thereby precluding judicial review), report and

recommendation adopted, 2010 WL 2787833 (D. Kan. July 15, 2010); Bailey v. Heckler, 576

F. Supp. 621, 624 (D. D.C. 1984) (remanding where record was incomplete on a

dispositive factual issue because there was an inadequate basis on which the court could

review the ALJ’s decision); see generally, 42 U.S.C. § 405(g) (requiring the Commissioner

to file a certified copy of the transcript of the record, including the evidence upon which

the findings and decision complained of are based).

A different conclusion would not be warranted had the ALJ relied on the DOT.

The DOT does not address the import of a sit/stand option. As such, the DOT would not

constitute substantial evidence in support of the ALJ’s finding that Plaintiff was capable

of performing her past relevant work with an RFC for light work and a sit/stand option.

Cf. Norman v. Colvin, No. 3:12-cv-54-J-TEM, 2013 WL 1149266, at *5-6 (M.D. Fla. Mar.

19, 2013) (concluding that VE’s testimony provided substantial evidence to support ALJ’s

finding that claimant could perform past relevant work as performed generally because

VE addressed claimant’s functional limitation unaccounted for in the DOT).

The Court is unpersuaded by the Commissioner’s contention that a remand on this

basis is not warranted because Plaintiff does not show or argue that her need for a sit/stand

option precludes her from performing her past relevant work. That contention conflates

Plaintiff’s burden of proof at step four with the Court’s review of the ALJ’s step-four

finding for substantial evidence. Equally unpersuasive is the Commissioner’s assertion

that it would serve no practical purpose to remand this case to have the ALJ pose the same

question to the VE. The Commissioner cites cases addressing the harmless error doctrine

in support of his assertion. The issue here, however, is not that the ALJ erred. Rather,

the issue is an absence of record evidence. Absent a hearing transcript that reveals the

ALJ’s questioning of the VE about Plaintiff’s ability to perform past work with an RFC

for light work and a sit/stand option, there is no record evidence that supports the ALJ’s

finding at step four. Accordingly, the cases on which the Commissioner relies are

inapposite.

B. Whether the ALJ gave an adequate explanation for rejecting the

Plaintiff’s VA disability rating

Plaintiff next argues that the ALJ failed to adequately explain his decision for

giving little weight to her 100% service-connected VA disability rating (Doc. 18 at 17-19).

The Commissioner counters that the ALJ properly considered the VA’s decision and

substantial evidence supports the ALJ’s decision (id. at 19-21).

A decision by any other governmental agency about whether a claimant is disabled

is not binding on the SSA. 20 C.F.R. § 404.1504.5 Although such decisions are not

binding on the ALJ, VA disability ratings should be considered and given great weight.

See Ostborg v. Comm’r of Soc. Sec., 610 F. App’x 907, 914 (11th Cir. 2015) (“A VA rating,

while not binding on the SSA, is evidence that should be considered and is entitled to great

weight”) (citation omitted); Boyette v. Comm’r of Soc. Sec., 605 F. App’x 777, 779 (11th Cir.

2015) (noting that VA disability ratings are not binding on the ALJ, but the VA ratings

should be considered and given great weight). Notably, “it is legal error to superficially

reject a VA disability rating and not address it on its merits because of its differing, more

lenient, and non-binding standards.” Weltz v. Berryhill, No. 8:17-cv-2860-T-AEP, 2018

WL 6716090, at *3 (M.D. Fla. Dec. 21, 2018); see Williams v. Berryhill, No. 8:17-cv-64-T-

30AEP, 2018 WL 1321275, at *3 (M.D. Fla. Feb. 26, 2018); Alvarez v. Comm’r of Soc. Sec.,

No. 2:15-cv-363-FtM-MRM, 2016 WL 4651373, at *4-5 (M.D. Fla. Sept. 7, 2016). When

there is a 100% VA disability rating, “the ALJ must seriously consider and closely

scrutinize the VA’s disability determination and must give specific reasons if the ALJ

discounts that determination.” Beshia v. Comm’r of Soc. Sec., 328 F. Supp. 3d 1341, 1346-

47 (M.D. Fla. 2018) (citing Brown-Gaudet-Evans v. Comm’r of Soc. Sec., 673 F. App’x 902,

904 (11th Cir. 2016)).

5 As the parties recognize, for claims filed on or after March 27, 2017, the SSA will no

longer provide any analysis in its determination or decision about a decision made by

any other governmental agency or a nongovernmental entity about whether a claimant is

disabled. 20 C.F.R. § 404.1504. Plaintiff’s claim, however, was filed prior to that date.

By letter dated December 14, 2017, the VA provided a summary of benefits

Plaintiff was receiving as a result of a 100% service-connected disability rating (Tr. 2135).

The VA letter also indicated that the last change to Plaintiff’s disability award was effective

December 1, 2106 (id.). It appears the VA’s initial disability determination was made in

2010 based on the following disability ratings and impairments: 100% for SLE, 70% for

generalized anxiety disorder with depressive disorder, 40% for right shoulder degenerative

joint disease with subscapular nerve neuropathy, 30% for cervical spine intervertebral disc

syndrome, degenerative arthritis, and degenerative joint disease, 30% for various

gastrointestinal impairments, and 10% for five other impairments (Tr. 2139-40). The ALJ

acknowledged the VA’s 100% disability rating, but gave it “little weight,” finding it was

based on the VA’s standards for disability and proved “inconsistent with [SSA]’s standards

for disability, as outlined above,” and was not binding (Tr. 21).

The Court finds that the ALJ’s brief explanation is superficial and therefore

inadequate. See Wood v. Colvin, 2017 WL 379473, at *3 (M.D. Fla. Jan. 6, 2017) (finding

an ALJ inadequately addressed the Plaintiff’s VA disability rating where his brief

explanation did not give specific reasons for discounting it); Burch-Mack v. Comm’r of Soc.

Sec., 8:15-cv-1167-T-JSS, 2016 WL 4087477, at *4 (M.D. Fla. Aug. 2, 2016) (concluding

that ALJ “superficially considered the VA’s disability rating and did not engage in

meaningful review of the VA’s disability determination”); Gibson v. Comm’r of Soc. Sec.,

725 F. Supp. 2d 1347, 1351 (M.D. Fla. 2010) (determining ALJ erred by rejecting VA’s

disability rating because the criteria differed from the Commissioner’s “without any true

analysis of the basis for the VA rating”). Absent some explanation, the ALJ’s conclusory

statement that the VA’s disability rating was inconsistent with the SSA’s disability

standard “as outlined above” fails to demonstrate otherwise.6 Moreover, while the

Commissioner is correct in noting that a remand on this basis may not be warranted if it

does not affect the substantial evidence supporting the ALJ’s decision (Doc. 18 at 21),

because a remand is warranted on other issues, the Court declines to consider whether the

ALJ’s failure to adequately explain his reasons for rejecting the VA disability rating was

harmless.

C. Whether substantial evidence supports the ALJ’s reasons for

rejecting the opinion Dr. Ginige S. DeSilva

Plaintiff argues that the ALJ failed to state good cause for rejecting the opinion of

Dr. DeSilva, her treating rheumatologist. Plaintiff contends it is unclear whether the ALJ

considered Dr. DeSilva a treating source, and the reasons he provided for according her

opinion little weight are not supported by substantial evidence (Doc. 18 at 21-24). The

Commissioner counters that the ALJ provided good reasons, supported by substantial

evidence, for giving little weight to Dr. DeSilva’s opinion (id. at 26-28).

In assessing an individual’s disability claim, an ALJ “must consider all medical

opinions in a claimant’s case record, together with other relevant evidence.” McClurkin v.

Soc. Sec. Admin., 625 F. App’x 960, 962 (11th Cir. 2015) (citing 20 C.F.R. § 404.1527(b)).

Typically, the ALJ must afford the opinions of a treating physician substantial or

considerable weight unless “good cause” is shown to the contrary. Crawford v. Comm’r of

Soc. Sec., 363 F.3d 1155, 1159 (11th Cir. 2004). Good cause exists where: (1) the treating

6 A fair reading of the decision leaves the Court unable to discern the ALJ’s meaning of

“as outlined above.”

physician’s opinion is not bolstered by the evidence; (2) the record evidence supports a

conflicting finding; or (3) the treating physician’s opinion is conclusory or inconsistent

with the physician’s own medical records. Phillips v. Barnhart, 357 F.3d 1232, 1240-41

(11th Cir. 2004) (citing Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997)); Crawford,

363 F.3d at 1159; see also 20 C.F.R. § 404.1527(c)(2). If an ALJ finds that the treating

physician’s medical opinion should be given less than substantial or considerable weight,

the ALJ must clearly articulate reasons showing good cause for discounting the opinion,

and those reasons must be supported by substantial evidence. Hargress v. Soc. Sec. Admin.,

Comm’r, 883 F.3d 1302, 1305-06 (11th Cir. 2018). The Court “will not second guess the

ALJ regarding the weight the treating physician’s opinion deserves so long as the ALJ

articulates a specific justification for it.” Hunter v. Soc. Sec. Admin., Comm’r, 808 F.3d 818,

823 (11th Cir. 2015) (citing Moore v. Barnhart, 405 F.3d 1208, 1212 (11th Cir. 2005)).

In this case, the ALJ found that Plaintiff’s SLE and fibromyalgia were severe

impairments (Tr. 13),7 and that DeSilva had treated Plaintiff “on and off” since 2010 (Tr.

7 SLE is a chronic autoimmune disease that causes inflammation in connective tissues. It

may involve many organs and systems, including the skin, joints, kidneys, lungs, central

nervous system, and blood-forming system. SLE’s common symptoms include extreme

fatigue, skin problems, and joint and muscle pain and weakness, and people with SLE

have episodes in which the condition gets worse and other times when it gets better.

United States National Library of Medicine, Systemic Lupus Erythematosus,

https://ghr.nlm.nih.gov/condition/systemic-lupus-erythematosus (last visited Mar. 25,

2020). Fibromyalgia is a chronic condition that causes pain all over the body, fatigue, and

other symptoms. The most common symptoms are pain and stiffness, fatigue and

tiredness, difficulty with memory and concentration, depression and anxiety, irritable

bowel syndrome, headaches, numbness and tingling in the hands and feet, and sleep

problems. While anyone can get fibromyalgia, it is more common in women and in

people that have certain diseases such as lupus and rheumatoid arthritis. United States

National Library of Medicine, MedlinePlus, Fibromyalgia,

https://medlineplus.gov/fibromyalgia.html (last visited Mar. 25, 2020).

20). The ALJ recounted Dr. DeSilva’s opinion on Plaintiff’s functional capacity, noting

the rheumatologist opined Plaintiff was limited to a significantly reduced range of

sedentary work, could use her hands only five percent of the workday, and was likely to

miss at least three days of work a month (Tr. 20).8 The ALJ gave the opinion “little

weight,” explaining that:

[Dr. DeSilva] also admitted [s]he saw the claimant on and off since

2010, and only twice during the relevant time frame[;]

[S]he also characterized the numbness the claimant purportedly gets

in the lower extremities as intermittent (a term that would not

ordinarily seem indicative of the significant limitations assigned by

Dr. DeSilva)[;]

The doctor also stated that the opinion was based, at least in part, on

cognitive changes and the like, many of which were self-reported by

the claimant to Dr. DeSilva. The [ALJ] has already explained that

these changes are not supported by the record evidence, and any

opinion deriving from the claimant’s self-report i[s] inherently

unreliable[; and]

[T]he clinical signs/findings when the claimant did see Dr. DeSilva

and others were modest in nature[.]

(Tr. 20).

The Court finds that the ALJ’s reasons for rejecting Dr. DeSilva’s opinion do not

constitute good cause and/or are not supported by substantial evidence.9 The ALJ’s first

8 Dr. DeSilva’s opinion is set forth in a “Lupus (SLE) Residual Functional Capacity

Questionnaire” dated January 21, 2018 (Tr. 2127-34).

9 Notably, Dr. DeSilva is the only treating doctor who rendered an opinion of Plaintiff’s

physical abilities and limitations. The only other opinion evidence addressing the same is

that provided by the state agency medical consultant, Frank Walker, M.D., who reviewed

Plaintiff’s claim file on reconsideration in May 2017, and opined Plaintiff retained the

RFC to perform medium work (Tr. 93-95). The forms Dr. Walker completed list

Plaintiff’s medically determinable physical impairment(s) as only “gastritis/duodenitis,”

reason is improper. “While the length of the treating relationship is certainly relevant,

and is rightly considered under the Regulations, it is a factor for making more nuanced

determinations as to the quality of the medical opinion offered, and cannot be used to

circumvent the ‘good cause’ requirement.” Poplardo v. Astrue, No. 3:06-cv-1101-J-MCR,

2008 WL 68593, at *10 (M.D. Fla. Jan. 4, 2008) (citing Lewis, 125 F.3d at 1140, and 20

C.F.R. § 416.927(d)(2)(i)); see Wallace v. Astrue, No. 2:07-cv-850-WC, 2008 WL 2428926,

at *5 (M.D. Ala. June 12, 2008) (explaining that an ALJ considers this factor only after

determining the treating doctor’s opinion is not entitled to controlling weight) (citing 20

C.F.R. § 416.927(d)(2)(i)). An ALJ, however, is not held to the “good cause” standard if

the relationship between the doctor and the patient is so brief or inconsequential that it

may not rightly be characterized as a “treating relationship.” Poplardo, 2008 WL 68593,

at *10.

The relationship between Plaintiff and Dr. DeSilva constitutes a substantial

treating relationship.10 As the ALJ recognized, Dr. DeSilva had treated Plaintiff since

2010. While the ALJ noted Dr. DeSilva saw Plaintiff only twice within the relevant time

frame—from Plaintiff’s amended onset of September 19, 2016, through the date of ALJ’s

decision on April 4, 2018—the record reveals Plaintiff was seen three times, albeit once

by Dr. DeSilva’s ARNP, before Dr. DeSilva completed the Lupus/SLE RFC

questionnaire (Tr. 1863-66, 2005-09, 2118-19). The treatment notes for each visit included

which was found to be non-severe (Tr. 91, 98). The ALJ gave little weight to Dr. Walker’s

opinion, explaining that he found a reduced range of light work to be the appropriate RFC

as it was more consistent with the record as a whole (Tr. 20).

10 The Commissioner does not dispute that Dr. DeSilva is a treating doctor, and he asserts

that “the ALJ did not suggest Dr. DeSilva was not a treating physician” ((Doc. 18 at 26).

a review of Plaintiff’s history, current symptoms, and medications; findings on exam; and

diagnostic assessments (Tr. 1863-66, 2005-09, 2118-19). Notably, there is no evidence

that Dr. DeSilva deviated in any way from accepted medical practice. See, e.g., Cole v.

Comm'r of Soc. Sec., No. 8:11-cv-1836-T-33MAP, 2013 WL 440576, at *3 (M.D. Fla. Jan.

17, 2013) (finding no good cause existed to discount doctor's opinions based on a “brief”

treatment history where doctor evaluated the plaintiff the longest, evaluated the plaintiff's

limitations, and met with the plaintiff seven times), report and recommendation adopted, 2013

WL 436179; Shuren v. Comm'r of Soc. Sec., No. 6:11-cv-1191-Orl-GJK, 2012 WL 4194665,

at *9 (M.D. Fla. Sept. 19, 2012) (finding that ALJ's rejection of physician's opinions

because “his treating relationship was only 6-8 months, consisting of thirty minute

sessions that were primarily for medication review” was “not a valid basis for discounting

[the physician's] opinions”) (internal quotations omitted); Cooper v. Astrue, No. 8:06-cv-

1863-T-27TGW, 2008 WL 649244, at *3 (M.D. Fla. Mar. 10, 2008) (finding no legal basis

for concluding that a physician who examined a patient four times over a two-month

period should not be given the weight accorded a treating physician); Poplardo, 2008 WL

68593, at *11 (rejecting ALJ's reason for discounting physician's opinions based on a

“limited” treating relationship where the plaintiff's four visits constituted a substantial

treating relationship in that the visits included treatment notes and no evidence existed

that the physician deviated from accepted medical practice); Cronon v. Barnhart, 244 F.

Supp. 2d 1286, 1293 n. 21 (N.D. Ala. 2003) (finding that orthopedist who examined

plaintiff three times qualified as a treating physician). For these reasons, the ALJ failed

to provide good cause to discount Dr. DeSilva’s opinion based on her treating relationship

with Plaintiff.

The ALJ’s second and fourth reasons both suggest the ALJ discounted Dr.

DeSilva’s opinion as inconsistent with her own treatment notes. While that reason

typically constitutes good cause, it is not here given the nature of SLE and fibromyalgia.

In any event, even if those reasons constituted good cause, they are not supported by

substantial evidence.

Regarding the ALJ’s second reason, the ALJ does not identify the record in which

Dr. DeSilva characterized Plaintiff’s lower extremity numbness as intermittent (Tr. 20).

It appears the ALJ was referring to Dr. DeSilva’s statement that Plaintiff had neuropathy

and suffered “intermittent numbness” of the fingers, hips, and feet as a result (Tr. 2129).

Significantly, the signs and symptoms of fibromyalgia and SLE often are intermittent. See

SSR 12-2p, 2012 WL 3104869, at *6 (recognizing that the signs and symptoms of

fibromyalgia vary in severity over time and can wax and wane); The Merck Manual

Consumer Version, https://www.merckmanuals.com/home/bone,-joint,-and-muscle-

disorders/autoimmune-disorders-of-connective-tissue/systemic-lupus-erythematosus-sle.

(last visited Mar. 26, 2020) (explaining that the joint symptoms of lupus range from

intermittent to acute, and the prognosis for lupus overall tends to be chronic and relapsing,

often with symptom-free periods). Moreover, even assuming intermittent numbness

resulting from neuropathy was an adequate basis to discount Dr. DeSilva’s opinion, it

would not constitute substantial evidence in support of the ALJ’s wholesale rejection of

the opinion because Dr. DeSilva’s opinion was not based primarily on neuropathy.

Rather, Dr. DeSilva identified other symptoms and conditions stemming from or related

to Plaintiff’s SLE and fibromyalgia (including arthritis, arthralgias, and fatigue), which

also were a basis for her opinion on Plaintiff’s functional capacity (Tr. 2127, 2130).

Further, by finding that Dr. DeSilva’s use of the word intermittent “would not ordinarily

seem indicative of significant limitations,” the ALJ appears to be substituting his opinion

for that of a medical professional. See Freeman v. Schweiker, 681 F.2d 727, 731 (11th Cir.

1982) (ALJ may not substitute his opinion for that of a doctor); Graham v. Bowen, 786 F.2d

1113, 1115 (11th Cir. 1986) (same).

As for the ALJ’s fourth reason, at least with regard to Plaintiff’s fibromyalgia, this

is not a case where “modest” clinical signs or a lack of physical findings reasonably casts

doubt upon the opinion of a treating physician. See Somogy v. Comm’r of Soc. Sec., 366 F.

App’x 56, 64-65 (11th Cir. 2010) (providing that “the nature of fibromyalgia itself renders

over-emphasis upon objective findings inappropriate,” as “a lack of objective evidence” is

its “hallmark”) (internal citations omitted)). As such, the ALJ’s blanket statement that

the “modest” clinical signs and findings noted by Dr. DeSilva and unidentified others is

insufficient to support the ALJ’s outright rejection of Dr. DeSilva’s opinion. See id. at 65

(“[t]he lack of objective clinical findings is, at least in the case of fibromyalgia, . . .

insufficient alone to support an ALJ’s rejection of a treating physician’s opinion as to the

claimant's functional limitations.”). In any event, the ALJ does not identify the “modest”

clinical findings Dr. DeSilva and others noted, nor does he explain why such findings are

inconsistent with her opinion (Tr. 20). Consequently, the Court is unable to determine

whether this stated reason is supported by substantial evidence. See Hubbell-Canamucio v.

Comm'r of Soc. Sec., No. 2:15-cv-21-FtM-DNF, 2016 WL 944262, at *4 (M.D. Fa. Mar.

14, 2016) (finding conclusory statements that an opinion is inconsistent or not supported

by the record are insufficient to show good cause for rejecting a treating doctor’s unless

the ALJ articulates factual support) (citing Kahle v. Comm'r of Soc. Sec., 845 F. Supp. 2d

1262, 1272 (M.D. Fla. 2012)); Okeefe v. Comm'r of Soc. Sec., No. 6:14-cv-1410-Orl-GJK,

2016 WL 362435, at *7 (M.D. Fla. Jan. 29, 2016) (Conclusory statements that an opinion

is inconsistent with or not bolstered by the medical record are insufficient to show an

ALJ’s decision is supported by substantial evidence unless the ALJ articulates factual

support for such a conclusion); Corron v. Comm’r of Soc. Sec., No. 6:12-cv-1623-Orl-GJK,

2014 WL 235472, at *6-7 (M.D. Fla. Jan. 22, 2014) (ALJ’s statement that treating doctor’s

opinion was “not supported by objective medical findings and [was] inconsistent with the

evidence of record when considered in its entirety” stated a good cause reason to give the

opinion little weight, but ALJ’s failure to articulate evidence supporting that reason

precluded court from determining whether it was supported by substantial evidence);

Anderson v. Astrue, No. 3:12-cv-308-J-JRK, 2013 WL 593754, at *5 (M.D. Fla. Feb.15,

2013) (concluding that the ALJ must do more than recite a good cause reason to reject a

treating physician’s opinion and must articulate evidence supporting that reason) (citing

authority); Poplardo, 2008 WL 68593, at *11 (failure to specifically articulate evidence

contrary to treating doctor's opinion requires remand); Paltan v. Comm'r of Social Sec., No.

6:07-cv-932-Orl-19DAB, 2008 WL 1848342, at *5 (M.D. Fla. Apr. 22, 2008) (“The ALJ's

failure to explain how [the treating doctor's] opinion was ‘inconsistent with the medical

evidence’ renders review impossible and remand is required.”).

Finally, the ALJ’s third reason for according little weight to Dr. DeSilva’s opinion,

i.e., it was based in part on Plaintiff’s cognitive changes, does not undermine or provide

substantial evidence for the ALJ’s rejection of Dr. DeSilva’s opinion on Plaintiff’s physical

functional capacity. Of note, Dr. DeSilva identified twelve of Plaintiff’s primary

symptoms, and opined thereafter that Plaintiff’s symptoms were severe enough to

constantly interfere with the attention and concentration required to perform simple work-

related tasks (Tr. 2130-31).11 While Dr. DeSilva stated Plaintiff had cognitive changes

such as difficulty with short-term memory, concentration, and focusing (Tr. 2133), she did

not identify any limitations that resulted solely from those difficulties. Moreover, with the

exception of opining that Plaintiff’s symptoms—only one of which was non-physical—

affected her attention and concentration, all other limitations Dr. DeSilva assessed were

related to Plaintiff’s physical functional capacity, i.e., her ability to walk, sit, stand, remain

in one position without changing positions, lift, reach, handle, and finger (Tr. 2131-32).12

V. Conclusion

Accordingly, after consideration, it is hereby

11 Dr. DeSilva checked the following as Plaintiff’s primary symptoms:

diarrhea/constipation, headache, depression, ankle swelling, trouble sleeping, arthralgias,

arthritis, heartburn, fatigue, Reynaud’s Phenomenon, chest pain, and anemia (Tr. 2130).

12 Within this section, the ALJ also stated that any opinion deriving from Plaintiff’s self-

reports is inherently unreliable (Tr. 20). The ALJ based that statement on the results of a

neuro-psychological evaluation conducted by Abigail Ritchie, Psy.D., in June 2017 (Tr.

14, 19-20), in which the psychologist deemed test results invalid in five of thirteen areas

(those related to attention, concentration, memory, and emotional functioning) due to

suboptimal effort (Tr. 1996-2003). The ALJ’s reliance on that report to find all of

Plaintiff’s self-reports unreliable, regardless of circumstances, is troubling. No other

doctor found Plaintiff to be a malinger or opined that her self-reports seemed exaggerated.

ORDERED:

1. The decision of the Commissioner is reversed and remanded pursuant to

sentence four of 42 U.S.C. § 405(g) to the Commissioner for further administrative

proceedings consistent with this Order.

2. The Clerk is directed to enter final judgment in favor of the Plaintiff and close

the case.

ORDERED in Tampa, Florida, on this 30 day of March 2020.

: “tL

SEAN P. FLYNN

UNITED STATES MAGISTRATE JUDGE

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