Alvarado v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

CARLOS MANUEL ALVARADO,

Plaintiff,

v. Case No. 3:19-cv-661-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 his applications for a period of disability, disability insurance

benefits (“DIB”), and supplemental security income (“SSI”). Following an

administrative hearing held on May 9, 2018, the assigned Administrative Law

Judge (“ALJ”) K. Barlow issued a decision finding Plaintiff not disabled from April

10, 2015, the alleged disability onset date, through July 17, 2018, the date of the

ALJ’s decision.2 (Tr. 22-33, 42-60.) Based on a review of the record, the briefs,

and the applicable law, the Commissioner’s decision is REVERSED and

REMANDED.

1 The parties consented to the exercise of jurisdiction by a United States

Magistrate Judge. (Docs. 17 & 20.)

2 Plaintiff had to establish disability on or before December 31, 2020, his date last

insured, in order to be entitled to a period of disability and DIB. (Tr. 23.)

I. Standard of Review

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 the court must scrutinize the entire record to

determine the reasonableness of the Commissioner=s factual findings).

II. Discussion

Plaintiff raises two issues on appeal. First, Plaintiff argues that the ALJ

erred in failing to properly weigh the opinion of his treating physician, Alejandro

C. Dizon, M.D. (Doc. 24 at 5-9.) Second, Plaintiff argues that the ALJ failed to

adequately assess his subjective complaints. (Id. at 9-12.) Defendant counters

that substantial evidence supports the ALJ’s decision to discount the opinion of

Dr. Dizon and her assessment of Plaintiff’s subjective complaints. (Doc. 25 at 4-

15.) The undersigned agrees with Plaintiff on the first issue, and, therefore, does

not address the second issue in detail.

A. Standard for Evaluating Opinion Evidence

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), 416.920(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),

416.927(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), 416.927(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, at *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 his 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), 416.929(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. See also

SSR 16-3p3 (stating that after the ALJ finds a medically determinable impairment

exists, the ALJ must analyze “the intensity, persistence, and limiting effects of the

individual’s symptoms” to determine “the extent to which an individual’s

symptoms limit his or her ability to perform work-related activities”).

As stated in SSR 16-3p:

In considering the intensity, persistence, and limiting effects of an

individual’s symptoms, [the ALJ must] examine the entire case

record, including the objective medical evidence; an individual’s

statements about the intensity, persistence, and limiting effects of

symptoms; statements and other information provided by medical

sources and other persons; and any other relevant evidence in the

individual’s case record.

. . .

In evaluating an individual’s symptoms, it is not sufficient for our

adjudicators to make a single, conclusory statement that “the

individual’s statements about his or her symptoms have been

considered” or that “the statements about the individual’s symptoms

are (or are not) supported or consistent.” It is also not enough for

our adjudicators simply to recite the factors described in the

regulations for evaluating symptoms.4 The determination or decision

must contain specific reasons for the weight given to the individual’s

symptoms, be consistent with and supported by the evidence, and

be clearly articulated so the individual and any subsequent reviewer

3 SSR 16-3p rescinded and superseded SSR 96-7p, eliminating the use of the

term “credibility,” and clarifying that “subjective symptom evaluation is not an

examination of an individual’s character.” SSR 16-3p.

4 These factors include: (1) a claimant’s daily activities; (2) the location, duration,

frequency, and intensity of the claimant’s pain or other symptoms; (3) any precipitating

and aggravating factors; (4) the type, dosage, effectiveness, and side effects of any

medication taken to alleviate the claimant’s pain or other symptoms; (5) any treatment,

other than medication, received by the claimant to relieve the pain or other symptoms;

(6) any measures (other than treatment) used to relieve the pain or other symptoms

(e.g., lying flat on his or her back, standing for 15 to 20 minutes every hour, or sleeping

on a board); and (7) any other factors concerning the claimant’s functional limitations

and restrictions due to pain or other symptoms. 20 C.F.R. §§ 404.1529(c)(3),

416.929(c)(3); SSR 16-3p.

can assess how the adjudicator evaluated the individual’s

symptoms.

. . .

In evaluating an individual’s symptoms, our adjudicators will not

assess an individual’s overall character or truthfulness in the manner

typically used during an adversarial court litigation. The focus of the

evaluation of an individual’s symptoms should not be to determine

whether he or she is a truthful person. Rather, our adjudicators will

focus on whether the evidence establishes a medically determinable

impairment that could reasonably be expected to produce the

individual’s symptoms and given the adjudicator’s evaluation of the

individual’s symptoms, whether the intensity and persistence of the

symptoms limit the individual’s ability to perform work-related

activities[.]

SSR 16-3p.

“[A]n individual’s attempts to seek medical treatment for symptoms and to

follow treatment once it is prescribed” will also be considered “when evaluating

whether symptom intensity and persistence affect the ability to perform work-

related activities.” Id. “[I]f the frequency or extent of the treatment sought by an

individual is not comparable with the degree of the individual’s subjective

complaints, or if the individual fails to follow prescribed treatment that might

improve symptoms, [the adjudicator] may find the alleged intensity and

persistence of an individual’s symptoms are inconsistent with the overall

evidence of record.” Id. However, the adjudicator “will not find an individual’s

symptoms inconsistent with the evidence in the record on this basis without

considering possible reasons he or she may not comply with treatment or seek

treatment consistent with the degree of his or her complaints.” Id. In considering

an individual’s treatment history, the adjudicator may consider, inter alia, one or

more of the following:

• That the individual may have structured his or her activities to

minimize symptoms to a tolerable level by avoiding physical

activities or mental stressors that aggravate his or her

symptoms;

• That the individual may receive periodic treatment or

evaluation for refills of medications because his or her

symptoms have reached a plateau;

• That the individual may not agree to take prescription

medications because the side effects are less tolerable than

the symptoms;

• That the individual may not be able to afford treatment and

may not have access to free or low-cost medical services;

• That a medical source may have advised the individual that

there is no further effective treatment to prescribe or

recommend that would benefit the individual;

• That due to various limitations (such as language or mental

limitations), the individual may not understand the appropriate

treatment for or the need for consistent treatment.

Id.

B. The ALJ’s Decision

At step two of the sequential evaluation process,5 the ALJ found that

Plaintiff had the following severe impairments: disorder of the spine, migraine

headaches, and diverticulitis (20 C.F.R. §§ 404.1520(c), 416.920(c)). (Tr. 25.)

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. 26.) Further, the ALJ found that Plaintiff had the

5 The Commissioner employs a five-step process in determining disability. See

20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).

RFC to perform light work6 with the following limitations:

[N]o climbing and only occasional stooping, crouching, crawling,

kneeling, and balancing. The claimant should have no exposure to

hazards, and no exposure to concentrated fumes, gases, and poorly

ventilated areas. The claimant needs to change positions between

sitting and standing hourly, and should be able to perform the job

duties from either a seated or a standing position.

(Id.)

In making this finding, the ALJ discussed, inter alia, Plaintiff’s subjective

complaints, the objective medical findings, the treatment and examining records,

and the opinion evidence. (Tr. 26-30.) In considering Plaintiff’s symptoms, the

ALJ summarized his hearing testimony as follows:

Claimant testified that his back problems began in 2012 when he

fell; he continued working until he was fired in April 2015 for not

completing paperwork. He said that he explained that he did not feel

well and was told he needed to leave. He testified that he takes

Ibuprofen every day, having taken Oxycodone in the past. He

testified that he has migraine headaches twice a week, which end

after an hour or two. With regard to his functional ability, he

estimated that he could lift 25 pounds, but he stated that he cannot

lift it constantly. When asked what he can comfortably lift, he stated

that he did not feel like he could hold his balance. He stated that

lifting bothers his back and that he would lift something and let it go

quickly. He testified that he feels best when he stands, and that he

can do so for 20 minutes to an hour.

The claimant testified that he spends his time caring for his children;

he drives, cooks prepared food, cleans, and washes laundry. He

stated that he has pain, but has responsibility as a single father of

three children (ages 10, 9, and 5) so he must push through the pain.

He stated that he gets his children to the bus stop and tries to only

6 By definition, light work involves lifting no more than twenty pounds at a time

with frequent lifting or carrying of objects weighing up to ten pounds; it requires a good

deal of walking, standing, or sitting most of the time with some pushing and pulling of

arm or leg controls. 20 C.F.R. §§ 404.1567(b), 416.967(b); SSR 83-10.

take the medication that causes drowsiness at night. He stated that

his family helps with laundry. He stated that he walks for exercise

about ten to 15 minutes some days. He testified that he does not

stretch his back because he feels weak.

(Tr. 27.)

The ALJ also considered Plaintiff’s December 2015 function report, noting

that:

[Plaintiff] reported that he spent his days taking his children to and

from school, cooking, washing clothes, and lying down. He reported

that he cared for his children, including tasks such as feeding them,

bathing them, dressing them, and taking them to school. He stated

he was able to cook complete meals, tacos, rice, beans, meat,

fajitas, and sandwiches. He indicated that he shopped in stores for

groceries and clothes. He reported difficulty bending and sitting for

too long. He reported that he could lift five pounds and walk one to

two miles. He also reported that he could follow written instructions

good [sic] and spoken instructions very well (Exhibit 2E).

(Id.) The ALJ then found, after careful consideration of the evidence, that while

Plaintiff’s “medically determinable impairments could reasonably be expected to

cause some of the alleged symptoms[,] . . . [his] statements concerning the

intensity, persistence and limiting effects of these symptoms [were] not entirely

consistent with the medical evidence and other evidence in the record.” (Id.)

Specifically, the ALJ found that Plaintiff’s “statements concerning the intensity,

persistence, and limiting effects of his symptoms [were] inconsistent with the

medical evidence.” (Tr. 28.)

After summarizing the objective and opinion medical evidence (Tr. 28-30),

including Dr. Dizon’s February 2018 opinion that Plaintiff was unable to work

“even a desk job due to severe back pain from degenerative disc disease,” and

could not work due to pain medications that made him dizzy and drowsy,7 (Tr.

30), the ALJ concluded that “the evidence of record [did] not establish that the

claimant’s impairments prevent[ed] him from performing work in accordance with

the” RFC assessment. (Id.) The ALJ explained:

The claimant testified that he can lift 25 pounds and that, while he

has difficulty getting comfortable, he feels best when standing. He

indicated he can stand 20 minutes to an hour. His treatment has

been largely conservative and he currently only takes Ibuprofen for

pain relief. Physical examinations have not shown any significant

abnormalities. He has no neurological deficits, retains normal

strength, and retains normal gait. Despite being advised by his

doctor, he does not stretch. In addition, his daily activities suggest a

greater functional capacity than alleged. He is a single father of

three children and care[s] for them. He gets his children off to

school, prepares meals, cleans, washes laundry, shops, and drives.

(Id.) Thus, the ALJ found, Plaintiff’s allegations were “not consistent with the

medical and other evidence of record.” (Id.)

The ALJ accorded great weight to the opinion evidence of the State

agency medical consultant, who opined that Plaintiff “could perform light work

with occasional climbing of ladders, ropes, or scaffolds and frequent crouching,

7 Specifically, in a letter dated February 1, 2018, Dr. Dizon certified that Plaintiff

was his patient and opined as follows:

[Plaintiff] is unable to work even at desk jobs because of severe back pain

due to degenerative disk disease of the spine. Also[,] he is on pain

medications that will make him dizzy and drowsy to relieve the back pain

[therefore] he cannot work. He lost his insurance and is unable to see the

back pain specialist to give him pain shots. He also suffers from migraine

headaches, prostate problems, and diverticulitis.

Please expedite his disability application so he can provide for his

children’s needs.

. . .

(Tr. 633.)

stooping, or climbing [of ramps] or stairs (Exhibits 4A and 5A).” (Id.) In

according great weight to this opinion, the ALJ found that it was supported by

Plaintiff’s conservative treatment, physical examination findings, and daily

activities. (Id.) However, in light of Plaintiff’s “complaints and testimony

regarding difficulty finding a comfortable position,” the ALJ found that Plaintiff

needed to “change positions between sitting and standing hourly, and should be

able to perform the job from either a seated or standing position.” (Id.)

The ALJ then accorded no weight to Dr. Dizon’s opinion, finding that it was

“wholly inconsistent with the claimant’s daily activities.” (Id.) The ALJ explained

that Plaintiff was a single parent of three children, who drove, shopped, cooked,

cleaned, washed laundry, helped with homework, and walked for exercise and

that “[t]his level of activity [was] inconsistent with Dr. Dizon’s opinion that the

claimant was unable to work due to severe back pain, drowsiness, and

dizziness.” (Id.) The ALJ also concluded that “Dr. Dizon’s examination findings

and treatment notes” did not support his opinion. (Id.)

At step four, the ALJ determined that Plaintiff was unable to perform any

past relevant work. (Tr. 30-31.) At step five, after considering Plaintiff’s age,

education, work experience, and RFC, the ALJ determined that there were jobs

existing in significant numbers in the national economy that Plaintiff could

perform. (Tr. 31-32.) In making this determination, and in assessing “the extent

to which these limitations erode[d] the unskilled light occupational base,” the ALJ

relied on the testimony of a vocational expert (“VE”) who testified that Plaintiff

could have performed the jobs of small parts assembler, electronics worker, and

laundry folder. (Tr. 32.) As noted in the ALJ’s decision, all of these

representative occupations were classified as unskilled, light exertion work with a

Specific Vocational Preparation (“SVP”) of 2. (Id.) Thus, the ALJ concluded that

Plaintiff was not disabled from April 10, 2015 through the date of the decision.

(Tr. 32-33.)

C. Analysis

The Court agrees with Plaintiff that the ALJ improperly evaluated the

opinion evidence of Dr. Dizon, his treating physician. Plaintiff argues that the

ALJ erred in discounting the opinion of Dr. Dizon that he was “unable to work

even at desk jobs due to severe back pain” caused by degenerative disc disease

and due to pain medication that caused him to be dizzy and drowsy. (Doc. 24 at

7.) Plaintiff argues that the ALJ gave Dr. Dizon’s opinion no weight based solely

on her conclusion that it was inconsistent with Plaintiff’s activities of daily living.

(Id.) Plaintiff contends that his activities of daily living were not inconsistent with

Dr. Dizon’s opinion that he was completely disabled, and that he clarified at the

hearing that he experienced pain performing his daily activities, which consisted

of household chores and caring for his three children, and that “he received

assistance from his family in completing many of the household chores.” (Id.)

Plaintiff argues that, like in Cavarra v. Astrue, 393 F. App’x 612, 614-15 (11th Cir.

2010), the ALJ erred in discounting the opinion of Dr. Dizon based solely on his

daily activities, as “the Eleventh Circuit has recognized that performance of

household chores with difficulty is not inconsistent with disability.” (Id. at 8-9.)

Moreover, Plaintiff argues that the ALJ erred in failing to “consider any of the

other required factors in his evaluation of Dr. Dizon’s opinion.” (Id. at 9.)

Defendant counters that substantial evidence supports the ALJ’s decision

to accord no weight to the opinion of Dr. Dizon. (Doc. 25 at 4-10.) First,

Defendant contends that Dr. Dizon’s opinion regarding Plaintiff’s inability to work,

“without giving any opinion on any functional abilities or limitations,” was not a

medical opinion, but rather an opinion on an issue reserved for the

Commissioner and, thus, was not entitled to any weight. (Id. at 6.) Defendant

also claims that substantial record evidence, including Plaintiff’s daily activities,

normal or unremarkable examination findings, and limited use of pain medication,

supports the ALJ’s decision to give no weight to the opinion of Dr. Dizon. (Id. at

7.) With respect to Plaintiff’s argument that the ALJ failed to specifically discuss

the 20 C.F.R. §§ 404.1527(c) and 416.927(c) factors, Defendant counters that

“Plaintiff misrepresented the ALJ’s decision in stating that [she] solely discounted

Dr. Dizon’s opinion based on Plaintiff’s daily activities” where the “ALJ also

discounted the opinion based on the lack of support from Dr. Dizon’s treatment

notes.” (Id. at 9.)

As Plaintiff notes, the ALJ gave no weight to the opinion of Dr. Dizon

because it was “wholly inconsistent with the claimant’s daily activities,” which the

ALJ found to suggest “a greater functional capacity than alleged.” (Tr. 30.)

However, the performance of limited daily activities is not necessarily

inconsistent with allegations of disability. See, e.g., Flynn v. Heckler, 768 F.2d

1273, 1275 (11th Cir. 1985) (per curiam) (reversing and remanding the case to

the Commissioner for lack of substantial evidence to support the finding that the

claimant had no severe impairment, even though the claimant testified that she

performed housework for herself and her husband, accomplished other light

duties in the home, and “was able to read, watch television, embroider, attend

church, and drive an automobile short distances”); White v. Barnhart, 340 F.

Supp. 2d 1283, 1286 (N.D. Ala. 2004) (holding that substantial evidence did not

support the decision denying disability benefits, even though the claimant

reported that she took care of her own personal hygiene, cooked, did housework

with breaks, helped her daughter with homework, visited her mother, socialized

with friends sometimes, and, on a good day, drove her husband to and from

work, but needed help with grocery shopping, and could sit, stand, or walk for

short periods of time). Rather, the record shows that Plaintiff’s activities of daily

living were limited and demonstrates that he needed regular assistance with

household chores, laundry, and shopping and relied on his children, family, and

friends for help. (See, e.g., Tr. 48-51, 239-42, 281, 283-85.)

Additionally, while the ALJ also discounted the opinion of Dr. Dizon

because his “examination findings and treatment notes [did] not support this

opinion” (Tr. 30), this reason is not supported by substantial evidence. Dr.

Dizon’s treatment records consistently revealed positive examination findings,

including tender points in the lumbar area, positive bilateral straight leg raises,

and reports of severe pain in the lower and upper back. (See, e.g., Tr. 465, 469,

502, 509-10, 513-14, 516-17, 524-25, 530-31, 642-61.) Dr. Dizon assessed,

inter alia, dorsalgia; cervicalgia; chest pain; unspecified thoracic, thoracolumbar,

and lumbosacral intervertebral disc disorder; migraine, unspecified, non-

intractable; and insomnia due to medical condition. (Tr. 644, 648.) He also

prescribed medication, including narcotic pain medication to treat Plaintiff’s back

pain, made various referrals for pain management, and referred Plaintiff to

various specialists. (Tr. 449-471, 502, 509-31, 642-61.) In addition, while the

ALJ notes that Plaintiff received conservative treatment and only took Ibuprofen,

the record, including Dr. Dizon’s letter and treatment records, reveals that

Plaintiff had difficulty receiving medical treatment and medication due to financial

difficulties and lack of insurance. (See Tr. 53, 516, 633; see also Tr. 642 (noting,

on February 1, 2018, that Plaintiff saw Dr. Patel who “wanted to do [a] spinal

procedure[,] but he lost his insurance” and the “spinal shots were cancelled”).)

Moreover, the examination findings were not as unremarkable as the ALJ

suggests. The examinations for the relevant period often revealed, inter alia,

lumbar facet tenderness; moderate left sacroiliac joint tenderness; limited flexion

and extension of the lumbar spine; positive lumbar facet loading on the left side;

positive FABER test on the left side; and muscle spasms. (See, e.g., Tr. 520,

553, 578, 581, 592, 625.) Plaintiff’s moderate to severe pain was also well-

documented and confirmed by the physical examinations in the record. (See Tr.

465, 487, 502, 509, 550, 561, 589, 591, 609, 612, 625, 642, 644.)

Further, the abnormal MRIs and other diagnostic exams were consistent

with the examination findings and Plaintiff’s reported symptoms. (See Tr. 422

(treatment records dated March 14, 2014, recommending that Plaintiff consider

undergoing a transforaminal lumbar interbody fusion (MIS TLIF) of the left L5-S1

due “to the ongoing symptoms, lack of response to conservative treatment[,] and

associated radiographic findings”); Tr. 428 ( lumbar MRI impression dated

February 4, 2013, revealing “[m]ild broad-based disc herniation at the L5-S1 level

causing right neuroforaminal stenosis”); Tr. 506-07 (noting, on August 30, 2016,

that an MRI of the lumbar spine revealed disc bulging at L4-5 and L5-S1 and a

shallow right foraminal disc protrusion at L5-S1); Tr. 622 (noting, on December 6,

2017, that a “[d]irect review of the lumbar spine [X-R]ay image shows left LS

transverse process pseudoarthrosis”); Tr. 639 (noting, on May 19, 2017, that a

cervical spine MRI revealed a “C5-6 right subarticular disc protrusion causing

severe narrowing of the right side of the spinal canal and compression of the

right hemi cord but no convincing signal abnormality” and that “[t]he protrusion

extends into[,] and moderate[ly] to severely narrows[,] the right C5-6 neural

foramen”). But see Tr. 447 (noting, on May 6, 2014, that Plaintiff’s MRI and X-

Ray were “unremarkable and show[ed] no significant pathology that would

warrant surgical treatment” and recommending continuing with conservative

treatment).) Moreover, the record shows that in December 2017, after failing

conservative treatment, including epidural steroid injections and physical therapy,

Plaintiff was referred to neurosurgery for possible surgical intervention for his left

pseudoarthrosis and was “scheduled for left lumbar facet medial bra[n]ch blocks

at L3/4, L4/[5], and L[5]/S1.” (Tr. 621-26.) Those results, along with the physical

examination findings and Plaintiff’s course of treatment, supported Plaintiff’s

complaints of disabling symptoms.

Based on the foregoing, the Court cannot conclude that the ALJ’s reasons

for discounting the opinion of Dr. Dizon were supported by substantial evidence

in the record. To the extent the ALJ relied on the March 2016 opinion of the non-

examining State agency medical expert (Tr. 97-100), that opinion pre-dated a

substantial part of the medical record. Because the Court concludes that the ALJ

erred in her evaluation of the medical opinion of Dr. Dizon, the Court will not

separately address Plaintiff’s arguments regarding the ALJ’s assessment of his

subjective complaints. Nevertheless, as discussed supra, the Court notes that it

was improper for the ALJ to conclude that Plaintiff’s limited participation in certain

daily activities, including household chores, was consistent with the ability to

perform competitive work. The performance of limited daily activities is not

necessarily inconsistent with allegations of disability. See, e.g., Flynn v. Heckler,

768 F.2d 1273, 1275 (11th Cir. 1985) (per curiam); White v. Barnhart, 340 F.

Supp. 2d 1283, 1286 (N.D. Ala. 2004). Therefore, this case will be reversed and

remanded for further proceedings.

Accordingly, it is ORDERED:

1. The Commissioner’s decision is REVERSED and REMANDED

pursuant to sentence four of 42 U.S.C. § 405(g), with instructions to the ALJ to

conduct the five-step sequential evaluation process in light of all the evidence,

including the opinion evidence from treating, examining, and non-examining

sources, and 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 /n 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 23, 2020.

UNITED STATES MAGISTRATE JUDGE

Copies to:

Counsel of Record

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