Harris v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

YOLANDA HARRIS,

Plaintiff,

v. Case No. 3:19-cv-1181-JRK

ANDREW M. SAUL,

Commissioner of Social Security,

Defendant.

OPINION AND ORDER1

I. Status

Yolanda Harris (“Plaintiff”) is appealing the Commissioner of the Social

Security Administration’s (“SSA(’s)”) final decision denying her claim for

disability insurance benefits (“DIB”). Plaintiff’s alleged inability to work is the

result of memory loss, stress, pustular psoriasis, and a fracture in the neck that

was sustained in a motor vehicle accident. See Transcript of Administrative

Proceedings (Doc. No. 14; “Tr.” or “administrative transcript”), filed February

6, 2020, at 279-80, 292, 415. Plaintiff filed an application for DIB on February

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

Magistrate Judge. See Notice, Consent, and Reference of a Civil Action to a Magistrate Judge

(Doc. No. 13), filed February 6, 2020; Reference Order (Doc. No. 15), entered February 7, 2020.

10, 2016,2 alleging an onset disability date of December 10, 2015. Tr. at 389.

The application was denied initially, Tr. at 279-89, 290, 291, 310-12, and upon

reconsideration, Tr. at 292-307, 308, 309, 314-18.

On August 21, 2018, an Administrative Law Judge (“ALJ”) held a

hearing, during which she heard testimony from Plaintiff, who was represented

by counsel, and a vocational expert (“VE”). See Tr. at 250-78. Plaintiff was

thirty-nine years old at the time of the hearing. Tr. at 279 (indicating date of

birth). On October 10, 2018, the ALJ issued a Decision finding Plaintiff not

disabled through the date of the Decision. See Tr. at 29-48.

Thereafter, Plaintiff sought review of the Decision by the Appeals

Council. See Tr. at 386. On August 14, 2019, the Appeals Council denied

Plaintiff’s request for review, Tr. at 1-4, thereby making the ALJ’s Decision the

final decision of the Commissioner. On October 17, 2019, Plaintiff commenced

this action under 42 U.S.C. § 405(g) by timely filing a Complaint (Doc. No. 1),

seeking judicial review of the Commissioner’s final decision.3

2 Although actually completed on February 10, 2016, see Tr. at 389, the protective

filing date of the application is listed elsewhere in the administrative transcript as December

29, 2015, see, e.g., Tr. at 279.

3 The Complaint inadvertently alleges Plaintiff is also seeking review under 42

U.S.C. § 1383(c)(3). See Complaint at 1. This statute is inapplicable because Plaintiff’s appeal

does not involve supplemental security income.

On appeal, Plaintiff makes two arguments: 1) “the ALJ erred by not

including the mental limitations in the hypothetical to the VE,” specifically

Plaintiff’s “limitations regarding concentration, persistence or pace and the

limitations in interacting with people”; and 2) “the [D]ecision of the ALJ is not

supported by su[bs]tantial evidence” because the ALJ erred in discounting the

opinions of Advanced Practice Registered Nurse (“APRN”) Tracy Ervin,4 and

instead relying on the opinions of the non-examining state agency medical

consultant, Jennifer Meyer, M.D., who reviewed Plaintiff’s DIB application at

the reconsideration level in August 2016, see Tr. at 296-304. Memorandum in

Support of Complaint (Doc. No. 18; “Pl.’s Mem.”), filed February 12, 2020, at 6,

7-8 (emphasis and some capitalization omitted); see Pl.’s Mem. at 4 (discussing

Dr. Meyer’s August 2016 opinions). On June 4, 2020, Defendant filed a

Memorandum in Support of the Commissioner’s Decision (Doc. No. 19; “Def.’s

Mem.”) addressing Plaintiff’s arguments. After a thorough review of the entire

record and consideration of the parties’ respective memoranda, the undersigned

finds that the Commissioner’s final decision is due to be affirmed.

4 Ms. Ervin treated Plaintiff for her mental health impairments. See, e.g., Tr. at

1383. The administrative transcript contains progress notes from Ms. Ervin spanning July

2017 to November 2018. See Tr. at 86-242, 1383-417.

II. The ALJ’s Decision

When determining whether an individual is disabled,5 an ALJ must

follow the five-step sequential inquiry set forth in the Code of Federal

Regulations (“Regulations”), determining as appropriate whether the claimant

(1) is currently employed or engaging in substantial gainful activity; (2) has a

severe impairment; (3) has an impairment or combination of impairments that

meets or medically equals one listed in the Regulations; (4) can perform past

relevant work; and (5) retains the ability to perform any work in the national

economy. 20 C.F.R. § 404.1520; see also Phillips v. Barnhart, 357 F.3d 1232,

1237 (11th Cir. 2004). The claimant bears the burden of persuasion through

step four, and at step five, the burden shifts to the Commissioner. Bowen v.

Yuckert, 482 U.S. 137, 146 n.5 (1987).

Here, the ALJ followed the five-step sequential inquiry. See Tr. at 31-48.

At step one, the ALJ determined Plaintiff “has not engaged in substantial

gainful activity since December 10, 2015, the alleged onset date.” Tr. at 31

(emphasis and citation omitted). At step two, the ALJ found that Plaintiff “has

the following severe impairments: fibromyalgia, obesity, disorders of the spine,

disorders of the knees, disorders of the feet, . . . schizoaffective disorder, bipolar

5 “Disability” is defined in the Social Security Act as the “inability 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 12 months.” 42 U.S.C. §§ 423(d)(1)(A),

1382c(a)(3)(A).

type, generalized anxiety disorder (GAD), panic disorder without agoraphobia,

[and] posttraumatic stress disorder (PTSD).” Tr. at 31 (emphasis and citation

omitted). At step three, the ALJ ascertained that Plaintiff “does not have an

impairment or combination of impairments that meets or medically equals the

severity of one of the listed impairments in 20 [C.F.R.] Part 404, Subpart P,

Appendix 1.” Tr. at 32 (emphasis and citation omitted).

The ALJ determined that Plaintiff has the following residual functional

capacity (“RFC”):

[Plaintiff can] perform light work as defined in 20

[C.F.R. §] 404.1567(b) except with frequent . . . climbing of

ramps/stairs, balancing, stooping, kneeling, crouching, and

crawling. [Plaintiff] can do no more than occasional climbing of

ladders, ropes and scaffolds. She must avoid concentrated exposure

to vibration, dangerous machinery, unprotected heights, and

pulmonary irritants (dust, fumes, odors, gases, and poor

ventilation). [Plaintiff] can do no more than simple, routine

repetitive tasks.

Tr. at 34 (emphasis omitted).

At step four, the ALJ found that Plaintiff “is unable to perform any past

relevant work.” Tr. at 46 (emphasis and citation omitted). At the fifth and final

step of the sequential inquiry, after considering Plaintiff’s age (“36 years

old . . . on the alleged disability date”), education (“a limited education”), work

experience, and RFC, the ALJ relied on the VE’s testimony and found that

“there are jobs that exist in significant numbers in the national economy that

[Plaintiff] can perform,” such as “night cleaner”; “labeler”; “inspector, hand

packager”; “table worker”; “addresser”; and “sorter.” Tr. at 46-47 (emphasis and

citation omitted). The ALJ concluded Plaintiff “has not been under a

disability . . . from December 10, 2015[ ] through the date of th[e D]ecision.” Tr.

at 48 (emphasis and citation omitted).

III. Standard of Review

This Court reviews the Commissioner’s final decision as to disability

pursuant to 42 U.S.C. § 405(g). Although no deference is given to the ALJ’s

conclusions of law, findings of fact “are conclusive if . . . supported by

‘substantial evidence.’” Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001)

(citing Falge v. Apfel, 150 F.3d 1320, 1322 (11th Cir. 1998)). “Substantial

evidence is something ‘more than a mere scintilla, but less than a

preponderance.’” Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005)

(quoting Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987)). The substantial

evidence standard is met when there is “such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.” Falge, 150 F.3d at 1322

(quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)); see also Biestek v.

Berryhill, 139 S.Ct. 1148, 1154 (2019); Samuels v. Acting Comm’r of Soc. Sec.,

959 F.3d 1042, 1045 (11th Cir. 2020) (citation omitted). It is not for this Court

to reweigh the evidence; rather, the entire record is reviewed to determine

whether “the decision reached is reasonable and supported by substantial

evidence.” Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991) (citation

omitted). The decision reached by the Commissioner must be affirmed if it is

supported by substantial evidence—even if the evidence preponderates against

the Commissioner’s findings. Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155,

1158-59 (11th Cir. 2004) (per curiam).

IV. Discussion

A. VE Hypothetical

1. Parties’ Arguments

Plaintiff asserts that “[t]he ALJ asked the VE to assume certain

limitations about a hypothetical person to determine if that person could

perform [Plaintiff’s] past relevant work or any other work in the economy” but

that “the ALJ failed to include [in the hypothetical] all [of Plaintiff’s]

limitations, specifically the mental health limitations regarding concentration,

persistence or pace and the limitations in interacting with people.” Pl.’s Mem.

at 6. Plaintiff contends that “[i]t is not clear whether the moderate limitations

regarding concentration, persistence and pace would impact [P]laintiff’s ability

to work because they were not included in the hypothetical to the VE.” Id.

Responding, Defendant argues that “[c]ontrary to Plaintiff’s contention,

the ALJ’s RFC finding and hypothetical adequately account[ ] for her moderate

limitations with concentrating, persisting, and maintaining pace,” because they

“limited Plaintiff to jobs requiring no more than ‘simple, routine repetitive

tasks.’” Def.’s Mem. at 5 (citations omitted). Defendant does not address

Plaintiff’s argument regarding her limitations in interacting with others. See

generally Def.’s Mem. at 5-8.

2. Applicable Law

An ALJ poses a hypothetical question to a VE as part of the step-five

determination of whether the claimant can obtain work in the national

economy. See Wilson v. Barnhart, 284 F.3d 1219, 1227 (11th Cir. 2002). When

the ALJ relies on the testimony of a VE, “the key inquiry shifts” from the RFC

assessment in the ALJ’s written decision to the adequacy of the RFC description

contained in the hypothetical posed to the VE. Brunson v. Astrue, 850 F. Supp.

2d 1293, 1303 (M.D. Fla. 2011) (quoting Corbitt v. Astrue, No. 3:07-cv-518-HTS,

2008 WL 1776574, at *3 (M.D. Fla. Apr. 17, 2008) (unpublished)).

In determining an individual’s RFC and later posing a hypothetical to a

VE that includes the RFC, the ALJ “must consider limitations and restrictions

imposed by all of an individual’s impairments, even those that are not ‘severe.’”

SSR 96-8P, 1996 WL 374184 at *5; see also 20 C.F.R. § 404.1545(a)(2); Swindle

v. Sullivan, 914 F.2d 222, 226 (11th Cir. 1990) (stating “the ALJ must consider

a claimant’s impairments in combination” (citing 20 C.F.R. § 404.1545; Reeves

v. Heckler, 734 F.2d 519, 525 (11th Cir. 1984))). “In order for a [VE]’s testimony

to constitute substantial evidence, the ALJ must pose a hypothetical question

which comprises all of the claimant’s impairments.” Wilson, 284 F.3d at 1227

(citing Jones v. Apfel, 190 F.3d 1224, 1229 (11th Cir. 1999)); see also Loveless

v. Massanari, 136 F. Supp. 2d 1245, 1250 (M.D. Ala. 2001). While the

hypothetical question must include all of the claimant’s impairments, it need

not include impairments properly rejected by the ALJ. See McSwain v. Bowen,

814 F.2d 617, 620 n.1 (11th Cir. 1987). Moreover, “questions that ‘implicitly

account[ ] for the claimant’s limitations’ are sufficient to meet this

requirement.” Henry v. Comm’r, Soc. Sec. Admin., 802 F.3d 1264, 1269 (11th

Cir. 2015) (quoting Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1180-81

(11th Cir. 2011)); see also Thornton v. Comm’r, Soc. Sec. Admin., 597 F. App’x

604, 612 (11th Cir. 2015).

In Winschel, the Court of Appeals for the Eleventh Circuit found error in

an ALJ’s decision because the ALJ determined the claimant had “a moderate

limitation in maintaining concentration, persistence, and pace” but “did not

indicate that medical evidence suggested [the claimant’s] ability to work was

unaffected by this limitation, nor did he otherwise implicitly account for the

limitation in the hypothetical [to the VE].” 631 F.3d at 1179. According to the

Eleventh Circuit, “the ALJ should have explicitly included the limitation in his

hypothetical question to the [VE].” Id. Nevertheless, the Eleventh Circuit

suggested that in other appropriate circumstances, an ALJ may properly find

that the medical evidence of record supports only an RFC limitation of unskilled

work despite moderate limitations in concentration, persistence, or pace. See

id. (citations omitted) (collecting cases finding that “when medical evidence

demonstrates that a claimant can engage in simple, routine tasks or unskilled

work despite limitations in concentration, persistence, and pace, courts have

concluded that limiting the hypothetical to include only unskilled work

sufficiently accounts for such limitations”).

Post-Winschel, the Eleventh Circuit (albeit in unpublished opinions) has

recognized that a moderate limitation in concentration, persistence and pace

can be sufficiently accounted for by posing a hypothetical to a VE that limits an

individual to simple, unskilled work (or something similar) when the medical

evidence demonstrates an ability to perform such work. See, e.g., Mijenes v.

Comm’r of Soc. Sec., 687 F. App’x 842, 846 (11th Cir. 2017) (finding that

“[b]ecause the medical evidence showed that [the claimant] could perform

simple, routine tasks despite her limitations in concentration, persistence, and

pace, the ALJ’s limiting of [the claimant’s RFC] to unskilled work sufficiently

accounted for her moderate difficulties in concentration, persistence, and pace”

(citation omitted)); Timmons v. Comm’r of Soc. Sec., 522 F. App’x 897, 907-08

(11th Cir. 2013) (approving of a limitation to “simple, one-two step task[s with]

only occasional contact with the public, coworkers, and supervisors” as

accounting for moderate limitation in concentration, persistence and pace in

light of opinions of two non-examining psychologists’ opinions supporting the

finding); Jacobs v. Comm’r of Soc. Sec., 520 F. App’x 948, 951 (11th Cir. 2013)

(finding a limitation “to one to three step non-complex tasks” sufficiently

accounted for moderate limitation in concentration, persistence, and pace);

Washington v. Soc. Sec. Admin., Comm’r, 503 F. App’x 881, 883 (11th Cir. 2013)

(finding a limitation “to performing only simple, routine repetitive tasks with

up to three-step demands, and only occasional changes in the work setting,

judgment, or decision making” was sufficient to account for moderate limitation

in maintaining concentration, persistence, and pace); Scott v. Comm’r of Soc.

Sec., 495 F. App’x 27, 29 (11th Cir. 2012) (distinguishing Winschel and finding

that “the medical evidence demonstrated that [the claimant] could engage in

simple, routine tasks or unskilled work despite moderate limitations in

concentration, persistence, and pace”); Jarrett v. Comm’r of Soc. Sec., 422 F.

App’x 869, 871 (11th Cir. 2011) (finding that the limitations of simple tasks and

only being able to concentrate for brief periods of time accounted for the

claimant’s moderate difficulties in concentration, persistence, and pace); see

also, e.g., Davis v. Comm’r of Soc. Sec., 11 F. Supp. 3d 1154, 1159 (M.D. Fla.

2014) (recognizing Winschel’s approval of limiting a hypothetical to unskilled

work—despite moderate limitations in concentration, persistence, and pace—

when the medical evidence supports it); Dawson v. Comm’r of Soc. Sec., No.

6:11-cv-1128-GAP-KRS, 2012 WL 1624267 (M.D. Fla. May 9, 2012)

(unpublished) (collecting cases which recognize that the inclusion of limitations

such as work involving simple tasks and/or simple instructions properly

accounts for moderate limitations in concentration, persistence, and pace), aff’d,

528 F. App’x 975 (11th Cir. 2013).

3. Analysis

a. Concentration, Persistence, and Pace

The ALJ found that “[w]ith regard to concentrating, persisting, or

maintaining pace, [Plaintiff] ha[s] moderate limitation.” Tr. at 32. The RFC and

the hypothetical posed to the VE limit Plaintiff to “simple, routine repetitive

tasks.” Tr. at 34 (emphasis omitted) (Decision); Tr. at 274-75 (hypothetical).

Moreover, in finding at step five that there are jobs that exist in significant

numbers in the national economy that Plaintiff can perform, the ALJ identified

jobs that are all unskilled work (“night cleaner”; “labeler”; “inspector, hand

packager”; “table worker”; “addresser”; and “sorter”). Tr. at 47 (Decision); Tr. at

275-76 (VE testimony). See SSR 00-4p, 2000 WL 1898704, at *3 (stating

“unskilled work corresponds to a[ Specific Vocational Preparation (“SVP”) level]

of 1-2”); U.S. Dep’t of Labor, Dictionary of Occupational Titles (DOT) (4th ed.

1991), § 323.687-018, 1991 WL 672784 (stating “night cleaner” has an SVP level

of 2); § 920.687-126, 1991 WL 687992 (stating “labeler” has an SVP level of 2)

§ 559.687-074, 1991 WL 683797 (stating “inspector and hand packager” has an

SVP level of 2); § 739.687-182, 1991 WL 680217 (stating “table worker” has an

SVP level of 2); § 209.587-010, 1991 WL 671797 (stating “addresser” has an SVP

level of 2); § 521.687-086, 1991 WL 674226 (stating “nut sorter” has an SVP

level of 2).6 The ALJ properly accounted for Plaintiff’s moderate limitations in

concentration, persistence, and pace by incorporating in the RFC (and the

hypothetical to the VE) the limitation of “simple, routine repetitive tasks,” Tr.

at 34 (emphasis omitted), and finding Plaintiff can perform unskilled work, Tr.

at 47. See, e.g., Winschel, 631 F.3d at 1179; Scott, 495 F. App’x at 29.

Additionally, substantial evidence supports the ALJ’s determination that

Plaintiff can perform unskilled work and “simple, routine repetitive tasks,”

despite her moderate limitations in concentration, persistence, and pace. See,

e.g., Tr. at 549 (December 8, 2015 emergency department note indicating

Plaintiff was “alert and oriented to person, place, and time”); Tr. at 1583-85,

1593-95,7 1512-13, 1535-36, 1561-63 (July 2018, February 2018, July 2017,

April 2017, and December 2016 treatment notes from Coastal Spine and Pain

Center (“Coastal Spine and Pain”) indicating that Plaintiff was “alert”;

“oriented to person, place, time and situation”; “able to follow complex

instructions”; and “polite, appropriate with staff,” that she “follow[ed] check in

procedure correctly and without problem,” that her “continuity of thought [was]

normal”; her “thought content” was coherent and showed no delusions; her

6 Although the VE identified the DOT title as “sorter,” the DOT section number

he provided corresponds to the title of “nut sorter.” See Tr. at 276; see also Tr. at 47 (Decision).

7 The treatment note contained in pages 1590 through 1595 of the administrative

transcript is dated February 8, 2018, Tr. at 1590, but was signed on April 7, 2018, Tr. at 1595.

The undersigned considers the date of the treatment note to be the date of the actual

appointment: February 8, 2018.

memory was “slightly diminished”; her judgment and “insight into situation”

were “fair”; and her intelligence and fund of information “appear[ed] average”).

Although not all medical notes show normal findings, the undersigned finds

that substantial evidence supports the ALJ’s finding that Plaintiff can perform

unskilled work and “simple, routine repetitive tasks,” and it is not for this Court

to reweigh the evidence. See Crawford, 363 F.3d 1155, 1158-59; Cornelius, 936

F.2d at 1145. It is clear the ALJ considered the record as a whole.

Moreover, Plaintiff points to no evidence indicating that her moderate

limitations in concentration, persistence, or pace would prevent her from

performing the type of light work described in the RFC. See generally Pl.’s Mem.

at 6-7.

For the foregoing reasons, the undersigned finds that the ALJ properly

accounted for Plaintiff’s moderate limitations in concentration, persistence, and

pace in both the RFC and the hypothetical to the VE.

b. Interaction with Others

The ALJ found that Plaintiff has only a “mild limitation” in interacting

with others. Tr. at 33. Plaintiff does not challenge this finding; rather, she

argues that the hypothetical posed to the VE did not account for Plaintiff’s mild

limitations in this area. See Pl.’s Mem. at 6-7. Plaintiff does not identify any

restrictions that are caused by Plaintiff’s mild limitations in interacting with

others that should have been included in the hypothetical to the VE. Given that

the limitations found by the ALJ were only mild, the undersigned finds no error

in the ALJ’s hypothetical.8

B. Medical Opinions

1. Parties’ Arguments

Plaintiff contends the ALJ erred in “discount[ing] the opinions of [Ms.

Ervin,] the only treating source that comments on [P]laintiff’s ability to perform

job functions,” Pl.’s Mem. at 8, and in giving “considerable weight to [Dr.

Meyer,] who opined in August 2016 that [P]laintiff was capable of a range of

light work,” Id. at 4; see id. at 7-8. Plaintiff asserts the ALJ erred because Dr.

Meyer’s opinion was rendered before Plaintiff was admitted to a hospital in

October 2016 under the Baker Act. Id. at 8.

Responding, Defendant asserts that “the ALJ was not required to

articulate specific reasons for discounting [Ms.] Ervin’s assessments” because

she is not an “acceptable medical source” under the Regulations. Def.’s Mem. at

10. “In any event,” argues Defendant, “the ALJ provided good reasons,

supported by substantial evidence, for according no significant weight to [Ms.]

Ervin’s assessments.” Id. (citations omitted). Defendant does not address

8 As noted, the limitations included in the hypothetical were identical to those

later included in the RFC.

Plaintiff’s argument regarding the ALJ’s assessment of Dr. Meyer’s opinion. See

generally Def.’s Mem. at 8-15.

2. Applicable Law9

“Medical opinions are statements from physicians or other acceptable

medical sources that reflect judgments about the nature and severity of [a

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

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

claimant’s] physical or mental restrictions.” 20 C.F.R. § 404.1527(a)(1); see also

20 C.F.R. § 404.1513(a). Acceptable medical sources include licensed

physicians, licensed psychologists, licensed optometrists, licensed podiatrists,

and qualified speech-language pathologists. 20 C.F.R. § 404.1502(a).10

The Regulations establish a hierarchy among medical opinions that

provides a framework for determining the weight afforded each medical

opinion. See 20 C.F.R. § 404.1527. Essentially, “the opinions of a treating

physician are entitled to more weight than those of a consulting or evaluating

9 On January 18, 2017, the SSA revised the Rules regarding the evaluation of

medical evidence and symptoms for claims filed on or after March 27, 2017. See Revisions to

Rules Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 5844-01, 5844 (January 18,

2017); see also 82 Fed. Reg. 15,132 (Mar. 27, 2017) (amending and correcting the final Rules

published at 82 Fed. Reg. 5844). Because Plaintiff filed her claim before that date, the

undersigned cites the Rules and Regulations that are applicable to the date the claim was

filed.

10 For claims filed on or after March 27, 2017, acceptable medical sources also

include licensed audiologists, licensed APRNs, and licensed Physician Assistants. 20 C.F.R.

§ 404.1502(a)(6)-(8).

health professional,” and “[m]ore weight is given to the medical opinion of a

source who examined the claimant than one who has not.” Schink v. Comm’r of

Soc. Sec., 935 F.3d 1245, 1259, 1260 n.5 (11th Cir. 2019). Further, “[n]on-

examining physicians’ opinions are entitled to little weight when they

contradict opinions of examining physicians and do not alone constitute

substantial evidence.” Id. at 1260 (citing Sharfarz v. Bowen, 825 F.2d 278, 280

(11th Cir. 1987) (per curiam)). The following factors are relevant in determining

the weight to be given to a physician’s opinion: (1) the “[l]ength of the treatment

relationship and the frequency of examination”; (2) the “[n]ature and extent of

[any] treatment relationship”; (3) “[s]upportability”; (4) “[c]onsistency” with

other medical evidence in the record; and (5) “[s]pecialization.” 20 C.F.R.

§ 404.1527(c)(2)-(5); see also 20 C.F.R. § 404.1527(f); Walker v. Soc. Sec. Admin.,

Comm’r, 987 F.3d 1333, 1338 (11th Cir. 2021); McNamee v. Soc. Sec. Admin.,

164 F. App’x 919, 923 (11th Cir. 2006) (citation omitted) (stating that

“[g]enerally, the opinions of examining physicians are given more weight than

those of non-examining physicians[;] treating physicians[’ opinions] are given

more weight than [non-treating physicians;] and the opinions of specialists are

given more weight on issues within the area of expertise than those of non-

specialists”).

With regard to a treating physician,11 the Regulations instruct ALJs how

to properly weigh such a medical opinion. See 20 C.F.R. § 404.1527(c)(2).

Because treating physicians “are likely to be the medical professionals most

able to provide a detailed, longitudinal picture of [a claimant’s] medical

impairment(s),” a treating physician’s medical opinion is to be afforded

controlling weight if it is “well-supported by medically acceptable clinical and

laboratory diagnostic techniques and is not inconsistent with the other

substantial evidence” in the record. Id. When a treating physician’s medical

opinion is not due controlling weight, the ALJ must determine the appropriate

weight it should be given by considering the factors identified above (the length

of treatment, the frequency of examination, the nature and extent of the

treatment relationship, as well as the supportability of the opinion, its

consistency with the other evidence, and the specialization of the physician). Id.

If an ALJ concludes the medical opinion of a treating physician should be

given less than substantial or considerable weight, he or she must clearly

articulate reasons showing “good cause” for discounting it. Walker, 987 F.3d at

1338 (citation omitted); Schink, 935 F.3d at 1259; Hargress v. Soc. Sec. Admin.,

11 A treating physician is a physician who provides medical treatment or

evaluation to the claimant and who has, or has had, an ongoing treatment relationship with

the claimant, as established by medical evidence showing that the claimant sees or has seen

the physician with a frequency consistent with accepted medical practice for the type of

treatment and/or evaluation required for the medical condition. See 20 C.F.R. § 404.1502.

Comm’r, 883 F.3d 1302, 1305 (11th Cir. 2018) (citation omitted); Lewis v.

Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997). Good cause exists when (1) the

opinion is not bolstered by the evidence; (2) the evidence supports a contrary

finding; or (3) the opinion is conclusory or inconsistent with the treating

physician’s own medical records. Walker, 987 F.3d at 1338; Schink, 935 F.3d at

1259; Hargress, 883 F.3d at 1305; Phillips, 357 F.3d at 1240-41; see also

Edwards v. Sullivan, 937 F.2d 580, 583-84 (11th Cir. 1991); Schnorr v. Bowen,

816 F.2d 578, 582 (11th Cir. 1987) (stating that a treating physician’s medical

opinion may be discounted when it is not accompanied by objective medical

evidence).

An ALJ is required to consider every medical opinion. See 20 C.F.R.

§ 404.1527(c) (stating that “[r]egardless of its source, we will evaluate every

medical opinion we receive”). While “the ALJ is free to reject the opinion of any

physician when the evidence supports a contrary conclusion,” Oldham v.

Schweiker, 660 F.2d 1078, 1084 (5th Cir. 1981) (citation omitted); see also 20

C.F.R. § 404.1527(c)(2), “the ALJ must state with particularity the weight given

to different medical opinions and the reasons therefor,” Winschel, 631 F.3d at

1179 (citing Sharfarz, 825 F.2d at 279); Moore v. Barnhart, 405 F.3d 1208, 1212

(11th Cir. 2005); Lewis, 125 F.3d at 1440.

Opinions from sources “who are not technically deemed ‘acceptable

medical sources’ . . . are important and should be evaluated on key issues such

as impairment severity and functional effects, along with the other relevant

evidence in the file.” SSR 06-03p, 2006 WL 2329939, at *3.12 Generally, the ALJ

“generally should explain the weight given to opinions from these sources or

otherwise ensure that the discussion of the evidence in the determination or

decision allows [the] claimant or subsequent reviewer to follow the [ALJ’s]

reasoning, when such opinions may have an effect on the outcome of the case.”

Id. at *6; 20 C.F.R. § 404.1527(f)(2).

3. Analysis

a. Ms. Ervin’s Opinions

As noted, Ms. Ervin is an APRN, who has treated Plaintiff for her mental

health impairments. See Tr. at 86-243, 1383-417. On June 18, 2018, Ms. Ervin

completed a check-off form titled, Medical Mental Assessment of Ability to Do

Work-Related Activities (Mental) (“Medical Assessment”). See Tr. at 1440-42.

The Medical Assessment sets forth a number of work-related activities

under three categories: 1) making occupational adjustments; 2) making

performance adjustments; and 3) making personal/social adjustments. See Tr.

12 SSR 06-03p was rescinded on March 27, 2017, but this rescission applies only

to claims filed on or after March 27, 2017. SSR 96-2P, 2017 WL 3928305, *1 (stating the

“rescission will be effective for claims filed on or after March 27, 2017”); Rescission of Social

Security Rulings 96-2p, 96-5p, and 06-3p, 82 Fed. Reg. 15,263-01, 15,263 (Mar. 27, 2017)

(same). SSR 06-03p therefore applies to Plaintiff’s claim.

at 1440-41. The Medical Assessment then asks the evaluator to determine

whether the patient has problems with any of the activities by assigning one of

the following ratings to each activity: “not significantly limited”; “moderate”;

“marked”; and “extreme.” Tr. at 1440-41 (capitalization and emphasis omitted).

In the first category (making occupation adjustments), Ms. Ervin opined

that Plaintiff has marked limitations in following rules, relating to co-workers,

functioning independently, and paying attention/concentrating; and that

Plaintiff has extreme limitations in dealing with the public, using good

judgment, interacting with supervisors, and dealing with stressors. Tr. at 1440-

41. In support of these opined limitations, Ms. Ervin stated that Plaintiff

“struggles with interactions in public and private” and that “[s]he hallucinates,

is paranoid tearful and afraid.” Tr. at 1441.

In the category of making performance adjustments, Ms. Ervin opined

Plaintiff has marked limitations in understanding, remembering, and carrying

out detailed jobs descriptions and extreme limitations understanding,

remembering, and carrying out complex jobs descriptions. Tr. at 1441. Ms.

Ervin checked both the “moderate” and “marked” ratings when answering the

degree of limitation associated with understanding, remembering, and carrying

out simple jobs descriptions. Tr. at 1441. In support of these opinions, Ms. Ervin

indicated Plaintiff “is very disorganized, bizarre, paranoid, forgetful and

nervous.” Tr. at 1441.

In the last category—making personal/social adjustments—Ms. Ervin

opined Plaintiff has marked limitations in maintaining personal appearance

and has extreme limitations in behaving in an emotionally stable manner,

relating predictably in social situations, and demonstrating reliability. Tr. at

1441. In support, Ms. Ervin opined that Plaintiff’s “appearance varies day to

day” and that “her emotions fluctuate with the hallucinations and anxiety.” Tr.

at 1441-42.

In addition to the above, Ms. Ervin opined she expects Plaintiff would

miss more than seven days of work per month. Tr. at 1442.

Ms. Ervin also wrote two letters: one dated September 28, 2017, Tr. at

341, 1201 (duplicate), and one dated June 28, 2018 (about eight days after the

Medical Assessment), Tr. at 1508. In both letters. Ms. Ervin opined that

Plaintiff “meets the criteria for disability . . . .” Tr. at 341, 1201 (duplicate),

1508. The letters also state, “[Plaintiff] continues to hallucinate, have serious

delusions, is disorganized, tangential, racing thoughts, poor focus, intense fear,

severe nervousness and paranoia.” Tr. at 341, 1201 (duplicate), 1508.

The ALJ summarized Ms. Ervin’s progress notes and opinions in detail,

see Tr. at 43-44, and assigned them “no significant weight,” Tr. at 43. In

discounting Ms. Ervin’s opinions, the ALJ explained that Ms. Ervin’s

“assessments are not consistent with the other medical evidence of record,” Tr.

at 44, and that Ms. Ervin’s treatment of Plaintiff “appears to have been

primarily done without participation of an M.D.[ ] or Ph.D.,” Tr. at 45. As

explained below, these reasons are supported by substantial evidence, and the

undersigned finds no error in the ALJ’s assessment of Ms. Ervin’s opinions.

In finding that Ms. Ervin’s opinions were inconsistent with the other

medical evidence, the ALJ specifically noted that although “psychological

[progress] notes document clinical abnormalities, the severity of the findings is

not corroborated by the other treating source medical evidence of record (mostly

from Coastal Spine [and] Pain) which reflects only mild or normal findings.” Tr.

at 44 (citation omitted). For example, as the ALJ stated, according to Ms.

Ervin’s records, “Plaintiff’s psychological treatment goal is to manage auditory

and visual hallucinations,” but “according to . . . July 2018 Coastal Spine and

Pain records, she does not experience hallucinations.” Tr. at 44 (citation

omitted); see Tr. at 1585 (July 2018 treatment note from Coastal Spine and Pain

indicating Plaintiff has “no hallucinations”). The ALJ accurately observed that

the notation in the Coastal Spine and Pain records was “not incidental” because

“initial” treatment notes from Coastal Spine and Pain show that Plaintiff “had

recently been admitted to the psychiatric ward at UF Health Jacksonville” and

“that [Plaintiff’s] psychological status put her at risk with respect to aggressive

opioid therapy.” Tr. at 44 (citation omitted); see Tr. at 1574 (November 2016

treatment note from Coastal Spine and Pain indicating, “[T]he significant

concerns raised by [Plaintiff’s] previous note from UF Health Jacksonville

dictate that I be conservative regarding opioid medications . . . .”). “Hence,”

stated the ALJ, “treating sources at Coastal Spine and Pain were aware of the

likelihood of mental health symptoms and were evaluating the same in

determining [Plaintiff’s] continuing suitability for opiate medication.” Tr. at 44.

Additionally, the ALJ accurately noted that other treatment notes from Coastal

Spine and Pain show relatively normal mental status exam findings. See, e.g.,

Tr. at 1584-85, 1594-95, 1513, 1536, 1562-63 (July 2018, February 2018, July

2017, April 2017, and December 2016 treatment notes from Coastal Spine and

Pain Center treatment notes showing Plaintiff presented with good hygiene,

her behavior was appropriate, she had normal speech volume and rate, she was

able to interact reasonably well with the interviewer, she used words

appropriately, she had a normal stream of thought, her continuity of thought

was normal, her thought content had no delusions and was coherent, she had

no hallucinations, she was oriented, her judgment was fair, her intelligence

appeared average, and her fund of knowledge appeared average).13 Moreover,

the ALJ accurately observed that although Plaintiff brought a “stuffed bear” to

a January 2018 appointment with Ms. Ervin, she was seen at Coastal Spine

and Pain that same month, and there is no mention of a stuffed bear in those

treatment notes. Tr. at 44; see Tr. at 1398 (January 2018 progress note

indicating Plaintiff “presented with a stuffed pillow bear that she used to wring

and hug during the session today”); see Tr. at 1222-27 (January 2018 treatment

note from Coastal Spine and Pain). Indeed, as noted by the ALJ, Plaintiff at

13 Most of these mental exam findings were also summarized supra pp. 13-14.

Coastal Spine and Pain had a “fairly normal mental status examination.” See

Tr. at 1222-27.

The ALJ acknowledged that Ms. Ervin’s progress notes indicate that

Plaintiff’s concentration and focus are “inadequate,” but the ALJ also observed

that Ms. Ervin does not “indicate what she means by inadequate.” Tr. at 44. As

stated by the ALJ, Plaintiff’s “focus and concentration have been adequate

enough for activities such as driving.” Tr. at 44; see, e.g. Tr. at 264-65 (Plaintiff

testifying she loves to drive and drives once every four days).

The last reason the ALJ gave for discounting Ms. Ervin’s opinion was that

Ms. Ervin’s treatment of Plaintiff was not done with the supervision of a

physician or a Ph.D. Tr. at 45. The ALJ was correct in noting this. Ms. Ervin’s

opinions are not considered “medical opinions” because she is not an acceptable

medical source under the applicable Regulations. See 20 C.F.R. §§ 404.1502(a),

404.1513(a). As such, although her opinions should be considered by an ALJ,

they are not medical opinions and are not entitled to any special deference.

Leone v. Comm’r of Soc. Sec., No. 8:19-cv-998-SCB-JSS, 2020 WL 3640061, at

*3 (M.D. Fla. June 23, 2020) (unpublished) (citing Himes v. Comm’r of Soc. Sec.,

585 F. App’x 758, 762 (11th Cir. 2014)), report and recommendation adopted

sub nom. Leone v. Saul, No. 8:19-cv-998-SCB-JSS, 2020 WL 3640534 (M.D. Fla.

July 6, 2020) (unpublished).

In sum, the ALJ clearly considered Ms. Ervin’s progress notes and

opinions, detailed the weight assigned to Ms. Ervin’s opinions, and articulated

specific reasons for such weight. See Phillips, 357 F.3d at 1240-41. The ALJ

properly considered Ms. Ervin’s opinions, and substantial evidence supports the

ALJ’s reasoning.

b. State Agency Medical Consultant’s Opinion

Plaintiff mistakenly argues the ALJ gave “considerable weight” to Dr.

Meyer’s August 2016 opinion that Plaintiff could perform light work. The ALJ

actually gave “considerable weight” to the October 2016 opinion of a different

state agency medical consultant (Thomas Lawhorn, M.D.). Tr. at 42;14 see Tr.

at 302-04 (Dr. Meyer’s opinions, dated August 27, 2016); Tr. at 306 (Dr.

Lawhorn’s opinion that Plaintiff could perform light work, dated October 21,

2016). As noted, the premise of Plaintiff’s argument is that the opinion to which

the ALJ gave “considerable weight” was outdated because it was from August

2016—prior to Plaintiff’s Baker Act admission. Dr. Lawhorn’s opinion (October

21, 2016) post-dates Plaintiff’s Baker Act admission (October 12 to October 17,

2016, see Tr. at 981-1031).

In any event, even if Dr. Lawhorn’s opinion predated Plaintiff’s October

2016 admission, the ALJ would not have erred in assigning it considerable

weight because the ALJ did not rely solely on Dr. Lawhorn’s opinion in finding

that Plaintiff could perform light work with the additional limitations set out

14 The Decision does not refer to Dr. Lawhorn by name, but the ALJ stated the

opinion was from October 2016, and she cited Exhibit B4A that includes Dr. Lawhorn’s

opinions. See Tr. at 42; see Tr. at 292-307 (Exhibit B4A).

in the RFC. Notably, in giving considerable weight to Dr. Lawhorn’s opinion,

the ALJ determined that “[s]ubsequent medical records do no[t] establish

conditions that could reasonably be expected to result in additional limitations.”

Tr. at 42. The ALJ then summarized in detail such subsequent evidence. See

Tr. at 42-46. It is clear the ALJ considered the evidence as a whole and found

that Dr. Lawhorn’s opinion was consistent with the largely normal medical

findings in the record. See Tr. at 35-46."°

V. Conclusion

After a thorough review of the entire record, the undersigned finds that

the ALJ’s Decision is supported by substantial evidence. Accordingly, it is

ORDERED:

1. The Clerk of Court is directed to enter judgment pursuant to

sentence four of 42 U.S.C. § 405(g), AFFIRMING the Commissioner’s final

decision.

2. The Clerk is further directed to close the file.

DONE AND ORDERED in Jacksonville, Florida on March 17, 2021.

JAMES R. KLINDT

United States Magistrate Judge

bhe

Copies to:

Counsel of Record

* Plaintiff does not argue that the light work RFC is not supported by substantial

evidence (except for Plaintiffs first argument addressed above regarding Plaintiffs limitations

in concentration, persistence, and pace and in interacting with others).

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