Stemm v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

SHAWN ELLEN STEMM,

Plaintiff,

v. Case No. 8:19-cv-1022-T-CPT

ANDREW M. SAUL,

Commissioner of Social Security,

Defendant.

____________________________/

O R D E R

The Plaintiff seeks judicial review of the Commissioner’s denial of her claim

for Disability Insurance Benefits (DIB). For the reasons discussed below, the

Commissioner’s decision is reversed, and the case is remanded.

I.

The Plaintiff was born in 1965, has at least a high school education, and has

past relevant work experience as both a nurse and a quality assurance coordinator. (R.

26). In August 2015, the Plaintiff applied for DIB alleging disability as of March 4,

2015, due to lupus, anemia, diabetes, arthritis, depression, anxiety, fibromyalgia,

sacroiliitis, neuritis, neuralgia, radiculitis, extreme fatigue, hyper cholesterol, lumbar

radiculopathy, lumbosacral spondylosis, degenerative joints, and low vitamin B12.

(R. 211-12, 240). The Social Security Administration denied the Plaintiff’s application

both initially and on reconsideration. (R. 86, 103).

At the Plaintiff’s request, an Administrative Law Judge (ALJ) conducted a

hearing on the matter on March 22, 2018. (R. 1356-97). The Plaintiff was represented

by counsel at that hearing and testified on her own behalf. Id. A vocational expert

(VE) also testified. Id.

In a decision dated July 5, 2018, the ALJ found that the Plaintiff: (1) met the

insured status requirements through December 31, 2020, and had not engaged in

substantial gainful activity since her alleged onset date of March 4, 2015; (2) had the

severe impairments of obesity, hip bursitis, rheumatoid arthritis, diabetes mellitus,

migraine headaches, and status post lumbar fusion; (3) did not, however, have an

impairment or combination of impairments that met or medically equaled the severity

of any of the listed impairments; (4) had the residual functional capacity (RFC) to

perform sedentary work with some additional postural, manipulative, and

environmental limitations; and (5) based on the VE’s testimony, could not engage in

her past relevant work but was capable of making a successful adjustment to other jobs

that exist in significant numbers in the national economy. (R. 15-27). In light of these

findings, the ALJ concluded that the Plaintiff was not disabled. (R. 27).

The Appeals Council denied the Plaintiff’s request for review. (R. 1-6).

Accordingly, the ALJ’s decision became the final decision of the Commissioner.

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II.

The Social Security Act (the Act) defines disability as the “inability to engage

in any substantial gainful activity by reason of any medically determinable physical or

mental impairment . . . which has lasted or can be expected to last for a continuous

period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A); see also 20 C.F.R.

§ 404.1505(a).1 A physical or mental impairment under the Act “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).

To determine whether a claimant is disabled, the Social Security Regulations

(Regulations) prescribe “a five-step, sequential evaluation process.” Carter v. Comm’r

of Soc. Sec., 726 F. App’x 737, 739 (11th Cir. 2018) (citing 20 C.F.R. § 404.1520(a)(4)).2

Under this process, an ALJ must determine whether the claimant: (1) is performing

substantial gainful activity; (2) has a severe impairment; (3) has a severe impairment

that meets or equals an impairment specifically listed in 20 C.F.R. Part 404, Subpart

P, Appendix 1; (4) has the RFC to engage in her past relevant work; and (5) can

perform other jobs in the national economy given her RFC, age, education, and work

experience. Id. (citing Phillips v. Barnhart, 357 F.3d 1232, 1237 (11th Cir. 2004); 20

C.F.R. §§ 404.1520(a)(4), 416.920(a)(4)). While the claimant has the burden of proof

1 Unless otherwise indicated, citations to the Code of Federal Regulations are to the version

in effect at the time of the ALJ’s decision.

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

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

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through step four, the burden temporarily shifts to the Commissioner at step five.

Sampson v. Comm’r of Soc. Sec., 694 F. App’x 727, 734 (11th Cir. 2017) (citing Jones v.

Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999)). If the Commissioner carries that burden,

the claimant must then prove that she cannot perform the work identified by the

Commissioner. Id. In the end, “the overall burden of demonstrating the existence of

a disability . . . rests with the claimant.” Washington v. Comm’r of Soc. Sec., 906 F.3d

1353, 1359 (11th Cir. 2018) (quoting Doughty v. Apfel, 245 F.3d 1274, 1280 (11th Cir.

2001)).

A claimant who does not prevail at the administrative level may seek judicial

review in federal court provided the Commissioner has issued a final decision on the

matter after a hearing. 42 U.S.C. § 405(g). Judicial review is limited to determining

whether the Commissioner applied the correct legal standards and whether the

decision is supported by substantial evidence. Id.; Hargress v. Soc. Sec. Admin., Comm’r,

883 F.3d 1302, 1305 n.2 (11th Cir. 2018) (citation omitted). Substantial evidence is

“more than a mere scintilla” and is “such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154

(2019) (citations and quotations omitted). In evaluating whether substantial evidence

supports the Commissioner’s decision, the Court may not decide the facts anew, make

credibility determinations, or re-weigh the evidence. Ross v. Comm’r of Soc. Sec., 794 F.

App’x 858, 860 (11th Cir. 2019) (per curiam) (quoting Moore v. Barnhart, 405 F.3d

1208, 1211 (11th Cir. 2005)). “[W]hile the court reviews the Commissioner’s decision

with deference to [his] factual findings, no such deference is given to [his] legal

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conclusions.” Keel-Desensi v. Berryhill, 2019 WL 1417326, at *2 (M.D. Fla. Mar. 29,

2019) (citations omitted).

III.

The Plaintiff raises three challenges on appeal: (1) the ALJ erred by not

developing the record as to whether the Plaintiff qualified for a closed period of

disability between her alleged onset date on March 4, 2015, and a back surgery she

underwent in July 2016; (2) the ALJ erred in finding that the Plaintiff’s mental

impairments were non-severe and did not result in any work-related limitations; and

(3) the ALJ erred in neglecting to consider the Plaintiff’s diabetic neuropathy in

assessing her RFC. (Doc. 14). The Commissioner counters that the ALJ applied the

correct legal standards and that his decision is supported by substantial evidence. Id.

Upon a thorough review of the record and the parties’ submissions, the Court finds

that the Plaintiff’s second and third arguments have merit requiring reversal.

A.

The crux of the Plaintiff’s second argument is that the ALJ committed several

mistakes in determining the severity of the Plaintiff’s mental impairments, including

by failing to appropriately consider the opinions of the Plaintiff’s treating psychiatrist,

Emilio Montero, M.D. (Doc. 14 at 26-28). The Court agrees that the ALJ erred in

his evaluation of Dr. Montero’s assessment and in his consideration of the Plaintiff’s

mental condition overall.

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The Court begins with an overview of the regulatory framework governing an

ALJ’s obligations with respect to opinion evidence and situations where, as in this

case, a claimant raises a colorable claim of a mental impairment.

In reviewing 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) (per curiam)

(citing 20 C.F.R. § 404.1527(b)).3 Medical opinions are statements from, inter alia,

physicians and psychologists “‘that reflect judgments about the nature and severity of

[the claimant’s] impairment(s), including [the claimant’s] symptoms, diagnosis and

prognosis, what [the claimant] can still do despite [her] impairment(s), and [the

claimant’s] physical or mental restrictions.’” Winschel v. Comm’r of Soc. Sec., 631 F.3d

1176, 1178-79 (11th Cir. 2011) (quoting 20 C.F.R. § 404.1527(a)(2)).

An ALJ must state with particularity the weight given to a medical opinion and

the reasons therefor. Id. at 1179. In rendering this determination, an ALJ must assess:

(1) whether the doctor has examined the claimant; (2) the length, nature, and extent

of the doctor’s relationship with the claimant; (3) the medical evidence and

explanation supporting the doctor’s opinion; (4) the degree to which the doctor’s

opinion is consistent with the record as a whole; and (5) the doctor’s area of

specialization. 20 C.F.R. § 404.1527(c). While an ALJ is required to consider each of

3 Although this regulation has been amended effective March 27, 2017, the new regulation

only applies to applications filed on or after that date. See 20 C.F.R. § 404.1520c. Because the

Plaintiff’s application was submitted in August 2015, the older version of the regulation

governs here.

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these factors, it is not necessary that he explicitly address them in his decision. Lawton

v. Comm’r of Soc. Sec., 431 F. App’x 830, 833 (11th Cir. 2011).

The Regulations set forth three tiers of medical opinions: (1) treating

physicians; (2) non-treating, examining physicians; and (3) non-treating, non-

examining physicians. Himes v. Comm’r of Soc. Sec., 585 F. App’x 758, 762 (11th Cir.

2014) (per curiam) (citing 20 C.F.R. § 404.1527(a)(2), (c)(1)-(2)). Treating doctors’

opinions are accorded the most deference because there is a greater likelihood that

these healthcare providers will “be able to give a more complete picture of the

[claimant’s] health history.” Schink v. Comm’r of Soc. Sec., 935 F.3d 1245, 1259 (11th

Cir. 2019) (citing 20 C.F.R. § 404.1527(c)(2)). As a result, the ALJ must give the

testimony 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) (per curiam). Good cause exists where: (1) the treating physician’s

opinion was not bolstered by the evidence; (2) the evidence supported a contrary

finding; or (3) the treating physician’s opinion was conclusory or inconsistent with the

physician’s own medical records. Phillips, 357 F.3d at 1240-41; see 20 C.F.R.

§ 404.1527(c)(2) (stating that “controlling weight” is given to a treating physician’s

opinion if the opinion is “well-supported by medically acceptable clinical and

laboratory diagnostic techniques and is not inconsistent with the other substantial

evidence in [the] record.”). If an ALJ finds that the treating physician’s medical

opinion should be accorded less than substantial or considerable weight, the ALJ must

clearly articulate reasons showing good cause for discounting the opinion, and those

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reasons must be supported by substantial evidence. Schink, 935 F.3d at 1259 (“We

have explained that the ALJ must clearly articulate the reasons for giving less weight

to the opinion of a treating physician.”) (citing Winschel, 631 F.3d at 1179).

In addition to the above, the Regulations governing an ALJ’s evaluation of

opinion evidence offered by medical sources draw a distinction between “acceptable

medical sources” and “other sources.” Social Security Ruling (SSR) 06-03p, 2006 WL

2329939, at *1-6 (S.S.A. Aug. 9, 2006) (explaining how the SSA assesses opinions

from different types of evidentiary sources).4 “Acceptable medical sources” include

licensed physicians as well as licensed or certified psychologists, while “other sources”

include physician assistants, nurse practitioners, and licensed clinical social workers.

Id. at *1-2; Anteau v. Comm’r of Soc. Sec., 708 F. App’x 611, 613 (11th Cir. 2017) (per

curiam). Unlike “acceptable medical sources,” the opinions of “other sources” are

“not medical opinions . . . entitled to any special significance or consideration,” Lange

v. Comm’r of Soc. Sec., 2019 WL 643714, at *4 (M.D. Fla. Feb. 15, 2019) (citations

omitted), and “cannot establish the existence of a medically determinable

impairment,” Anteau, 708 F. App’x at 613 (citation omitted).

Where, as here, a claimant presents a colorable claim of a mental impairment,

the Regulations mandate that the ALJ apply the Psychiatric Review Technique (PRT).

Moore, 405 F.3d at 1213-14; 20 C.F.R. § 404.1520a. This technique requires that the

4 SSRs “are agency rulings published under the Commissioner’s authority” and are generally

afforded deference by the courts. Klawinski v. Comm’r of Soc. Sec., 391 F. App’x 772, 775 (11th

Cir. 2010) (per curiam) (citing Sullivan v. Zebley, 493 U.S. 521, 531 n.9 (1990)).

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ALJ assess the Plaintiff’s mental impairments using the following four broad

functional areas—known as the Paragraph B criteria—(1) understanding,

remembering, or applying information; (2) interacting with others;

(3) concentrating, persisting, or maintaining pace; and (4) adapting or managing

oneself. 20 C.F.R. § 404.1520a(c)(3).

B.

In this case, the record reflects that Dr. Montero provided a letter and mental

RFC assessment of the Plaintiff in September 2017. (R. 1294-96). In his letter, Dr.

Montero stated that he treated the Plaintiff for Generalized Anxiety Disorder and that

he prescribed the Plaintiff Xanax. (R. 1294). In his accompanying mental RFC

assessment, Dr. Montero opined that the Plaintiff had moderate restrictions in all

mental health-related work activities, including understanding, memory,

concentration, social interaction, and the ability to adapt to various work situations,

and that such mental conditions had existed since 2015. (R. 1295-96).

In his decision, the ALJ performed the PRT at step two of the sequential

evaluation process and found that the Plaintiff had no limitation in the first and fourth

functional areas, and a mild limitation in the second and third. At step four, the ALJ

elected to give “little weight” to Dr. Montero’s mental RFC assessment, finding that

the doctor’s conclusions that the Plaintiff suffered moderate limitations were “not

supported by the record as a whole.” (R. 25). In rendering this finding, the ALJ

referenced his step two “analysis of the [Paragraph] ‘B’ criteria pertaining to the mental

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listings.” Id. The ALJ’s determination regarding Dr. Montero’s opinions is flawed in

several respects.

To begin, the ALJ’s justification for discounting Dr. Montero’s assessment is

conclusory and does not contain a clear rationale as to how the ALJ arrived at his

determination. See Winschel, 631 F.3d at 1179 (“[A]n ALJ may disregard a treating

physician’s opinion, but he ‘must clearly articulate [the] reasons’ for doing so’”)

(quoting Phillips, 357 F.3d at 1240-41); see also Davis v. Comm’r of Soc. Sec., 449 F. App’x

828, 833 (11th Cir. 2011) (per curiam) (noting that, unless an ALJ “clearly articulates”

good reasons for disregarding a treating physician’s opinion, his decision will not be

affirmed on appeal). While the ALJ did employ certain phrasing that might otherwise

support a finding of good cause (i.e., his claim that Dr. Montero’s opinion was “not

supported by the record as a whole” (R. 25)), the ALJ failed to sufficiently explain the

basis for his conclusion. See Hubbell-Canamucio v. Comm'r of Soc. Sec., 2016 WL 944262,

at *4 (M.D. Fla. Mar. 14, 2016) (finding conclusory statements that an opinion is

inconsistent with or not supported by the record are insufficient to show good cause

for rejecting a treating doctor’s opinion 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., 2016 WL 362435, at *7 (M.D. Fla. Jan. 29, 2016) (same); Corron

v. Comm’r of Soc. Sec., 2014 WL 235472, at *6-7 (M.D. Fla. Jan. 22, 2014) (finding the

ALJ’s statement that the 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 good cause to give the opinion little weight, but the ALJ’s failure

10

to articulate evidence supporting that reason precluded the court from determining

whether it was supported by substantial evidence); Freeman v. Comm’r of Soc. Sec., 2013

WL 6244527, at *7 (M.D. Fla. Dec. 3, 2013) (“Although the ALJ used the triggering

language for the ‘good cause’ exception, his conclusions are unsubstantiated by

reference to specific evidence in the record, and provide the reviewing Court with little

guidance in determining whether the findings are supported by substantial evidence.”)

(citations omitted); Anderson v. Astrue, 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); Paltan v. Comm’r of Social Sec., 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.”).

The ALJ’s mere reference to his Paragraph B analysis at step two does not cure

this deficiency. Notably, the ALJ did not mention or cite at that step Dr. Montero’s

opinions.

Nor does the ALJ’s step two discussion shed light on his stated reasons for

discounting Dr. Montero’s assessment. By way of example, the ALJ ostensibly found

Dr. Montero’s determination that the Plaintiff had moderate limitations in

concentration and persistence to be unsupported because the ALJ found only a mild

limitation in this functional domain. (R. 19). The ALJ predicated his finding on (1) a

neurosurgical examination stating that the Plaintiff’s concentration and attention were

11

“within normal limits;” (2) the initial evaluation of a licensed social worker, which—

the ALJ claimed—indicated that the Plaintiff’s “mental diagnoses ha[d] been generally

characterized as ‘mild’ in severity;” (3) “various clinical records from 2016” that

described the Plaintiff as “negative for anxiety, depression, and insomnia;” and (4) the

fact that the Plaintiff’s “diminished energy secondary to mental symptomology [wa]s

referenced only minimally in clinical records.” (R. 19) (internal citations omitted).

These reasons provided by the ALJ do not amount to good cause for rejecting

Dr. Montero’s opinion. The Court fails to see how an entry in one neurosurgical

consult (R. 1253) and the assessment of a licensed social worker (who is an “other

source”) that the Plaintiff mental diagnoses were mild (R. 1314) overrides the opinion

of the Plaintiff’s long-time treating psychiatrist (who is an “acceptable medical

source”), especially without some further clarification from the ALJ. The Court notes

in this regard that the ALJ provides no explanation as to why he credited the social

worker over Dr. Montero. In addition, the ALJ fails to elucidate why entries in certain

medical records that the Plaintiff was negative for anxiety, depression, and insomnia

or that she complained minimally about diminished energy would contradict Dr.

Montero’s assessment regarding the Plaintiff’s restrictions in her ability to concentrate.

The Commissioner’s tepid efforts to bolster the ALJ’s justification for rejecting

Dr. Montero’s opinion are unconvincing. While the Commissioner endeavors to add

substance to the ALJ’s reasoning by fleshing out purported contradictions between the

record and Dr. Montero’s evaluation (Doc. 14 at 30), the ALJ did not perform such

an analysis in his decision. The Court must review the ALJ’s assessment of Dr.

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Montero’s findings based upon what the ALJ said, not upon the Commissioner’s post-

hoc rationalization. See Watkins v. Comm’r of Soc. Sec., 457 F. App’x 868, 871-72 (11th

Cir. 2012) (“We cannot affirm based on a post hoc rationale that ‘might have

supported the ALJ’s conclusion.’”) (citing Owens v. Heckler, 748 F.2d 1511, 1516 (11th

Cir. 1984)); Dempsey v. Comm’r of Soc. Sec., 454 F. App’x 729, 733 (11th Cir. 2011) (per

curiam) (same) (citing Owens).

The Court is likewise not persuaded by the Commissioner’s suggestion that the

ALJ’s affording significant weight to the opinions of certain state agency non-

examining doctors who reviewed the Plaintiff’s medical records provides substantial

evidence for the ALJ’s finding. It is well established that the opinion of a non-

examining doctor cannot, by itself, supply the requisite good cause for rejecting the

assessment of a treating physician. Coley v. Comm’r of Soc. Sec., 771 F. App’x 913, 917

(11th Cir. 2019) (per curiam) (providing that a non-examining doctor’s opinion does

not constitute the good cause needed to reject a treating doctor’s opinion) (citing

Broughton v. Heckler, 776 F.2d 960, 961-62 (11th Cir. 1985)); Brock v. Comm’r, Soc. Sec.

Admin., 758 F. App’x 745, 750 (11th Cir. 2018) (per curiam) (providing that the

opinions of non-examining doctors do not amount to good cause for rejecting the

opinion of a treating physician) (citing Lamb v. Bowen, 847 F.2d 698, 703 (11th Cir.

1988)); Martz v. Comm’r, Soc. Sec. Admin., 649 F. App’x 948, 959 (11th Cir. 2016)

(recognizing that a non-examining doctor’s opinion, by itself, does not constitute good

cause for according less weight to a treating doctor’s opinion) (citing Johns v. Bowen,

821 F.2d. 551, 554 (11th Cir. 1987)).

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And, while an ALJ may in certain circumstances credit a non-examining

doctor’s opinion over that of a treating doctor, the ALJ must first articulate good cause

for discounting the treating physician’s opinion, which the ALJ did not do here. See

Flowers v. Comm’r of Soc. Sec., 441 F. App’x 735, 743 (11th Cir. 2011) (per curiam)

(finding that the ALJ did not err in giving more weight to a consulting doctor’s opinion

“because the ALJ articulated good cause for discounting the opinions of [the

claimant’s] treating and examining doctors and because the consulting doctor’s

opinion was consistent with the medical record, including the treating and examining

doctors’s own clinical findings”).

Even assuming arguendo that the ALJ did not err in his consideration of Dr.

Montero’s opinion, the ALJ’s step-four finding regarding the Plaintiff’s mental RFC

is nonetheless flawed. In rendering an RFC determination, ALJ must evaluate the

claimant’s maximum ability to do work despite her impairments, both severe and non-

severe. Schink, 935 F.3d at 1268-69 (“Consideration of all impairments, severe and

non-severe, is required when assessing a claimant’s RFC.”). The RFC analysis

therefore represents a more detailed evaluation of the functional import of a claimant’s

impairments than that required at step two. Id. at 1269 (noting that “the mental RFC

assessment used at steps [four] and [five] of the process ‘requires a more detailed

assessment by itemizing various functions contained in the broad categories found in

[P]aragraph B’”); see also Social Security Ruling (SSR) 96-8p, 1996 WL 374184, at *4

(July 2, 1996) (observing that the criteria used to rate severity of mental impairments

at step two do not amount to an RFC assessment and that a “more detailed” evaluation

14

is mandated at steps four and five, requiring “itemizing various functions contained in

the broad” functional areas).

By the Court’s review, the ALJ did not satisfy his obligations on this front

either. While acknowledging that his Paragraph B findings at step two were not a

substitute for the more thorough mental RFC evaluation necessitated at steps four and

five (R. 20), the ALJ’s subsequent discussion regarding the Plaintiff’s RFC and the

Plaintiff’s ability to work contains no such assessment, see (R. 20-27). The ALJ

likewise did not address in any meaningful way the Plaintiff’s testimony at the hearing

that she experienced “brain fog” and that her “physical conditions affect[ed] her ability

to focus and concentrate.” (R. 21). And, regardless of whether the Plaintiff’s asserted

problems with concentration stemmed from her physical or mental conditions, or

some combination of the two, the ALJ did not adequately address these problems,

either in rejecting the Plaintiff’s subjective complaints or in discounting Dr. Montero’s

opinion.5

In addition, although the ALJ mentions at step two that the Plaintiff had the

medically determinable impairment of “affective disorder” (R. 18), nowhere in his

decision did he discuss the Plaintiff’s allegations that she suffered from anxiety, despite

the fact that the Plaintiff claimed anxiety as a basis for her disability (R. 240) and

5 The Court notes that another of the Plaintiff’s treating doctors, Ann Winny, M.D., likewise

opined that the Plaintiff’s symptoms would “often” interfere with her concentration and

attention. (R. 767). The ALJ ignored Dr. Winny’s assessment, except to give one aspect of it

significant weight. (R. 25). The remainder of Dr. Winny’s opinion is left wholly unaddressed

by the ALJ.

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despite the fact that Dr. Montero diagnosed the Plaintiff with Generalized Anxiety

Disorder (R. 1294). The ALJ’s RFC analysis similarly contains no reference to the

Plaintiff’s diagnosed anxiety or the possible limitations resulting from that condition.

These deficiencies constitute reversible error. As has long been established,

“the ALJ must consider every impairment alleged,” and the failure to evaluate whether

a claimant’s alleged “impairments were sufficiently severe—either singularly or in

combination—to create a disability” warrants remand. Gibson v. Heckler, 779 F.2d 619,

623 (11th Cir. 1986) (reversing the Commissioner’s decision where ALJ failed to make

findings with respect to claimant’s claimed impairments of psoriasis, nervousness,

anxiety, dizziness, and forgetfulness). To demonstrate that all the impairments, severe

or non-severe, have been considered in combination, the ALJ must make “‘specific

and well-articulated findings as to the effect of the combination of impairments.’”

Heatly v. Comm'r of Soc. Sec., 382 F. App'x 823, 825 (11th Cir. 2010) (per curiam)

(quoting Bowen v. Heckler, 748 F.2d 629, 635 (11th Cir. 1984)); see also Walker v. Bowen,

826 F.2d 996, 1001-02 (11th Cir. 1987) (“[I]t is the duty of the ALJ to make specific

and well-articulated findings as to the effect of the combination of impairments and to

decide whether the combined impairments cause the claimant to be disabled.”)

(internal quotations omitted). The ALJ’s decision here does not abide by these

standards.

That the ALJ may have considered the Plaintiff’s mental conditions in his RFC

assessment sub silentio and impliedly determined that they did not significantly limit

the Plaintiff’s work-related mental abilities does not remedy this error. Schink, 935

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F.3d at 1269. As the Eleventh Circuit noted in Schink, “our precedent holds [that an]

ALJ’s ‘failure . . . to provide the reviewing court with sufficient reasoning for

determining that the proper legal analysis has been conducted mandates reversal’ in

its own right.” Id. (quoting Keeton v. Dep’t of Health & Human Servs., 21 F.3d 1064, 1066

(11th Cir. 1994)); see also Hudson v. Heckler, 755 F.2d 781, 785 (11th Cir. 1985) (per

curiam) (holding that failure to consider a claimant’s impairments in combination

“requires that the case be vacated and remanded for the proper consideration”).

C.

The Plaintiff’s third claim of error relating to the ALJ’s consideration of her

diabetic neuropathy similarly compels remand. As noted above, the ALJ determined

at step two that the Plaintiff’s diabetes mellitus was severe. (R. 17). When thereafter

discussing this condition at step four, the ALJ stated:

[B]y way of history, the presence of this impairment appears to date back

to 2011 and has been characterized as “Type II.” However, I note that

this condition has been routinely described as without complication,

stable on medications and well-controlled, as well as the claimant

maintaining satisfactory A1C levels.

Thus, while the claimant’s glucose levels have fluctuated to some

degree, this condition remains non-insulin dependent, and the only

treatment protocol and recommendations that appears to be in place are

routine monitoring, use of oral medication as needed, strict dietary

compliance and weight reduction. Additionally, I note this impairment

has been characterized as “mild.” Therefore, I find that the record is

devoid [of] evidence detailing the diabetic condition, standing alone or

in combination with other impairments, as resulting in debilitating

limitations necessitating total disability.

(R. 24) (internal citations omitted).

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This analysis by the ALJ is lacking insofar as it failed to take into account the

record evidence that the Plaintiff suffered from peripheral neuropathy. By the Court’s

review, at least four doctors found the Plaintiff to have this condition. In March 2015,

for example, Dr. Daniel Traviesa concluded that the Plaintiff had mild sensory

polyneuropathy “probably related to diabetes” and noted episodes of numbness. (R.

690); see also (R. 1319) (Dr. Traviesa’s October 11, 2017, diagnosis of diabetes mellitus

with neuropathy). Another physician—Dr. Margarita Martinez-Reyes—similarly

assessed the Plaintiff with neuropathy in July 2015 while noting that the Plaintiff’s

diabetes was “well controlled.” (R. 707). Dr. Winny likewise believed that the

Plaintiff had peripheral neuropathy as of December 2015. (R. 767). And, finally,

consultative examiner Dr. Edwin Lamm found in January 2016 that the Plaintiff had

a history of diabetic neuropathy involving her legs and feet (R. 775) and diagnosed her

with, among other conditions, diabetes mellitus with diabetic peripheral neuropathy

(R 776).

Notably, the ALJ entirely omits any discussion—both at step two and at step

four—of the peripheral neuropathy that these doctors found the Plaintiff to have,

ignored the Plaintiff’s allegations that she had numbness in her legs and feet (R. 262-

63), failed to address her report that problems with her hands caused her to drop things

(R.1375), and apparently overlooked the fact that the state agency assessment at both

the initial and reconsideration levels determined her peripheral neuropathy to be

severe (R. 79, 95). Instead, the ALJ offered only that the Plaintiff’s diabetes was

routinely described as “controlled” and “without complication,” while overlooking

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those records that evidenced neuropathy. This too was error, and, as a result, the

Court is without a sufficient basis to conclude that the ALJ considered the Plaintiff’s

condition as a whole. See Gibson, 779 F.2d at 623.

D.

The Plaintiff’s remaining argument is that the ALJ should have considered a

closed period of disability. In a “closed period” case, the ALJ decides whether a

claimant was disabled for a finite period that “started and stopped prior to the date of

[the ALJ’s] decision.” Mitchell v. Comm'r of Soc. Sec., 393 F. App’x 651, 652 (11th Cir.

2010) (per curiam) (quoting Pickett v. Bowen, 833 F.2d 288, 289 n.1 (11th Cir. 1987)).

Here, the Plaintiff did not file a claim for a closed period. Although she raised

the matter before the Appeals Council following the ALJ’s unfavorable decision (R.

334), she did not request that the ALJ consider a closed period of disability. Given the

Court’s ruling that remand is necessary on other grounds, however, the Court need

not resolve this issue. See Jackson v. Bowen, 801 F.2d 1291, 1294 n.2 (11th Cir. 1986)

(stating that where remand is required, it may be unnecessary to review other issues

raised). Instead, the Plaintiff will have the opportunity on remand to make such a

claim at the administrative level.

IV.

For the foregoing reasons, it is hereby ORDERED:

1. The Commissioner’s decision is reversed, and the case is remanded for

further proceedings before the Commissioner consistent with this Order.

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2. The Clerk is directed to enter Judgment in the Plaintiffs favor and to

close the case.

3. The Court reserves jurisdiction on the matter of attorney’s fees and costs

pending further motion.

DONE and ORDERED in Tampa, Florida, this 30th day of September 2020.

Onnierrglay P Ak

HONORABLE CHRISTOPHER P. TUITE

United States Magistrate Judge

Copies to:

Counsel of record

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