The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ERIC FURNO,
Plaintiff,
v. Case No. 8:19-cv-2808-SPF
ANDREW M. SAUL,
Commissioner of the Social
Security Administration,
Defendant.
/
ORDER
Plaintiff seeks judicial review of the denial of his claims for period of disability
benefits, Disability Insurance Benefits (“DIB”) and Supplemental Security Income
(“SSI”). As the Administrative Law Judge’s (“ALJ”) decision was not based on
substantial evidence and failed to employ proper legal standards, the Commissioner’s
decision is reversed and remanded.
I. Procedural Background
Plaintiff filed applications for DIB on March 11, 2015 and SSI on February 10,
2015 (Tr. 326-337). The Commissioner denied Plaintiff’s claims both initially and upon
reconsideration (Tr. 88-102, 103-111, 119-129, 130-147). Plaintiff then requested an
administrative hearing (Tr. 199-200). Per Plaintiff’s request, the ALJ held a hearing at
which Plaintiff appeared and testified (Tr. 36-53). Following the hearing, the ALJ issued
an unfavorable decision finding Plaintiff not disabled and denied Plaintiff’s claims for
benefits (Tr.155-165). Subsequently, the Appeals Council granted Plaintiff’s request for
review, and remanded the case for further proceedings. The Appeals Council directed the
ALJ to consider the opinions of Drs. Vijapura and Vega, directed the ALJ to further
evaluate Plaintiff’s mental impairments, further consider Plaintiff’s maximum RFC, and
obtain evidence from a VE (Tr. 174-176).
The ALJ held a second hearing, and issued another unfavorable decision (Tr. 10-
25). Thereafter, Plaintiff again requested review by the Appeals Council, and the Appeals
Council denied review (Tr. 1-3). Plaintiff then timely filed a complaint with this Court
(Doc. 1). The case is now ripe for review under 42 U.S.C. §§ 405(g), 1383(c)(3).
II. Factual Background and the ALJ’s Decision
Plaintiff was born on July 18, 1981 and was 31 years old on May 1, 2008, his
alleged disability onset date (Tr. 38). Plaintiff completed high school and attended one
year of college (Tr. 370), then worked from 1990-2008 as a billing coordinator and as a
database assistant (Tr. 360, 395). Unfortunately, Plaintiff was incarcerated from 2008
through 2011, and has not worked since his release in 2011 (Doc. 26, p.3; Tr. 481-82).
Plaintiff claimed disability due to generalized anxiety disorder, depression, morbid
obesity, social phobia, lower back pain, left leg numbness/tingling, and foot pain (Tr.
103). As a result of social phobia, Plaintiff only leaves his home with a family member
and ventures out only for appointments or to grocery shop (Tr. 39-42, 410). Plaintiff was
married from 2008-2016 (Tr. 43, 323). After his wife left him, Plaintiff moved into his
parents’ home (Tr. 42-43).
In rendering his February 27, 2019 administrative decision, the ALJ concluded
that Plaintiff had not engaged in substantial gainful activity since May 1, 2008, the alleged
onset date (Tr. 13).1 After conducting a hearing and reviewing the evidence of record, the
ALJ determined Plaintiff had the following severe impairments: “anxiety disorder,
depression, obesity, back disorder, and obstructive sleep apnea” (Tr. 13). The ALJ opined
that Plaintiff’s irritable bowel syndrome, gastroesophageal reflux disease, and
hypertension are non-severe impairments as they are controlled by medication, and/or
have not lasted for twelve consecutive months (Tr. 13-14). Notwithstanding these
impairments, the ALJ determined Plaintiff did not have an impairment or combination of
impairments that met or medically equaled one of the listed impairments in 20 C.F.R.
Part 404, Subpart P, Appendix 1 (Tr. 14). The ALJ then concluded that Plaintiff retained
the residual functional capacity (“RFC”) to perform light work with the following
limitations:
… can lift and carry 20 pounds occasionally; can lift and carry 10 pounds
frequently; can stand and walk 6 hours in an 8-hour workday; can [sic] for 6
hours in an 8-hour workday; can occasionally climb ladders, ropes, and
scaffolds; can occasionally climb ramps and stairs; can occasionally balance,
stoop, crawl, kneel and crouch; should avoid extreme cold, extreme heat,
excessive humidity; should avoid pulmonary irritants such as fumes, odors,
dust and gases; should avoid hazards; limited to work only to include
understanding, remembering, carrying out and performing simple routine tasks
and instructions; and occasional interaction with the public, co-workers and
supervisors; and occasional changes in work setting.
(Tr. 16).
In formulating Plaintiff’s RFC, the ALJ considered Plaintiff’s subjective
complaints and determined that, although the evidence established the presence of
1 Although Plaintiff originally claimed a disability onset date of May 1, 2008, his attorney
indicated at the administrative hearing that the onset date was amended to April 2, 2013
(Tr. 38, 103).
underlying physical and mental impairments that reasonably could be expected to produce
the symptoms alleged, Plaintiff’s statements as to the intensity, persistence, and limiting
effects of his symptoms were not entirely consistent with the medical evidence and other
evidence (Tr. 19). Considering Plaintiff’s impairments and the assessment of a vocational
expert (“VE”), the ALJ determined Plaintiff could perform work as a sorter, deliverer
marker, and shoe packer (Tr. 24-25). The ALJ found Plaintiff not disabled (Id.).
III. Legal Standard
To be entitled to benefits, a claimant must be disabled, meaning he or she must be
unable to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in death, or
which has lasted or can be expected to last for a continuous period of not less than twelve
months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A “physical or mental impairment”
is an impairment that results from anatomical, physiological, or psychological
abnormalities, which are demonstrable by medically acceptable clinical and laboratory
diagnostic techniques. 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D).
The Social Security Administration, in order to regularize the adjudicative process,
promulgated the detailed regulations currently in effect. These regulations establish a
“sequential evaluation process” to determine whether a claimant is disabled. 20 C.F.R.
§§ 404.1520, 416.920. If an individual is found disabled at any point in the sequential
review, further inquiry is unnecessary. 20 C.F.R. §§ 404.1520(a), 416.920(a). Under this
process, the ALJ must determine, in sequence, the following: whether the claimant is
currently engaged in substantial gainful activity; whether the claimant has a severe
impairment, i.e., one that significantly limits the ability to perform work-related functions;
whether the severe impairment meets or equals the medical criteria of 20 C.F.R. Part 404
Subpart P, Appendix 1; and whether the claimant can perform his or her past relevant
work. If the claimant cannot perform the tasks required of his or her prior work, step five
of the evaluation requires the ALJ to decide if the claimant can do other work in the
national economy in view of his or her age, education, and work experience. 20 C.F.R.
§§ 404.1520(a), 416.920(a). A claimant is entitled to benefits only if unable to perform
other work. Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987); 20 C.F.R. §§ 404.1520(g),
416.920(g).
A determination by the Commissioner that a claimant is not disabled must be
upheld if it is supported by substantial evidence and comports with applicable legal
standards. See 42 U.S.C. §§ 405(g), 1383(c)(3). Substantial evidence is “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305
U.S. 197, 229 (1938) (internal quotation marks omitted)); Miles v. Chater, 84 F.3d 1397,
1400 (11th Cir. 1996). While the court reviews the Commissioner’s decision with
deference to the factual findings, no such deference is given to the legal conclusions.
Keeton v. Dep’t of Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994) (citations
omitted).
In reviewing the Commissioner’s decision, the court may not re-weigh the evidence
or substitute its own judgment for that of the ALJ even if it finds that the evidence
preponderates against the ALJ’s decision. Bloodsworth v. Heckler, 703 F.2d 1233, 1239
(11th Cir. 1983). The Commissioner’s failure to apply the correct law, or to give the
reviewing court sufficient reasoning for determining that he or she has conducted the
proper legal analysis, mandates reversal. Keeton, 21 F.3d at 1066. The scope of review is
thus limited to determining whether the findings of the Commissioner are supported by
substantial evidence and whether the correct legal standards were applied. 42 U.S.C. §
405(g); Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002).
IV. Analysis
Plaintiff advances four arguments: 1) the ALJ failed to properly consider the
opinions of Ashit Vijapura, M.D. (his treating psychiatrist) and Felix Subervi (a
consultative psychologist); 2) the ALJ’s RFC determination and VE hypothetical were not
supported by substantial evidence; 3) the ALJ erred by failing to consider records from
Kathryn Lamson (Plaintiff’s LMHC); and 4) the ALJ’s credibility determination was not
supported by substantial evidence (Doc. 19 at 28-58). The Commissioner responds that
the ALJ’s decision is supported by substantial evidence. The Court finds that the ALJ
failed to apply the correct legal standards and the ALJ’s decision is not supported by
substantial evidence. Because the ALJ erred in weighing the medical opinions, the first
and third issues will be combined and discussed first.
A. Medical Opinions
In evaluating 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) 2 (citing 20 C.F.R. § 404.1527(b)).3
An ALJ has wide latitude to evaluate the weight of the evidence, and there is “no rigid
requirement that the ALJ specifically refer to every piece of evidence in his decision.”
Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005). Instead, the ALJ’s decision must
reflect that he has considered the medical evidence as a whole and that substantial
evidence supports his conclusions. Id. (citing Foote v. Chater, 67 F.3d 1553, 1558 (11th Cir.
1995)).
When assessing the medical evidence, the ALJ must state with particularity the
weight afforded to different medical opinions and the reasons therefor. Winschel v. Comm'r
of Soc. Sec., 631 F.3d 1176, 1179 (11th Cir. 2011) (citation omitted). In determining the
weight to afford a medical opinion, the ALJ considers a variety of factors including, but
not limited to, the examining relationship, the treatment relationship, whether an opinion
is well-supported, whether an opinion is consistent with the record as a whole, and the
area of the doctor's specialization. 20 C.F.R. §§ 404.1527(c), 416.927(c). For instance, the
more a medical source presents evidence to support an opinion, such as medical signs and
laboratory findings, the more weight that medical opinion will receive. 20 C.F.R. §§
404.1527(c)(3), 416.927(c)(3). Further, the more consistent the medical opinion is with the
record as a whole, the more weight that opinion will receive. 20 C.F.R. §§ 404.1527(c)(4),
2 Unpublished opinions of the Eleventh Circuit Court of Appeals are not considered
binding precedent; however, they may be cited as persuasive authority. 11th Cir. R. 36-2.
3 These regulations were amended effective March 27, 2017, after Plaintiff filed his
application. See 20 C.F.R. § 404.1520c. The amendments do not apply to Plaintiff’s claim.
416.927(c)(4). Typically, the ALJ must afford 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) (citation omitted).
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
v. Barnhart, 357 F.3d 1232, 1240-41 (11th Cir. 2004).
1. Ashit Vijapura, M.D.
Plaintiff began treating with psychiatrist Ashit Vijapura, M.D. in February 2015
when he moved to Florida to be closer to his parents. Between February 2015 and
December 2018, Plaintiff received regular psychiatric treatment at Dr. Vijapura’s office
for anxiety, panic attacks, and social phobia (Tr.1007-1039, 1116-1122, 1189-1217).
Treatment notes from 2015 and 2016 generally reflect that Plaintiff reported he felt easily
agitated, depressed, and hopeless; had difficulty sleeping, focusing, and concentrating;
was unable to leave his home without his wife or mother; and struggled with feeling
compelled to inflict self-harm (at times he has cut his forearms) (Tr. 42, 1007-1039). By
mid-2016, Dr. Vijapura had adjusted Plaintiff’s prescription medications multiple times
and added Valium to Plaintiff’s treatment regime. Plaintiff reported feeling better than
ever; however, he continued to suffer from panic attacks and did not leave his home
without his wife (Tr. 1116-1122).
Dr. Vijapura’s treatment notes from mid-2017 through 2018 show Plaintiff’s
condition deteriorated when his wife left him. He struggled with thoughts of self-harm
and felt more depressed and anxious. He moved in with his parents, but experienced
anxiety due to new stressors there. During this timeframe, some of Dr. Vijapura’s mental
status exams were “normal,” while on other dates the psychiatrist characterized Plaintiff’s
affect as tearful (Tr. 1195) or flat (Tr. 1211) and his thought process as tangential (Tr.
1199). In October 2018, Plaintiff reported that he was finally feeling a lot better and that
his medications were working again (Tr. 1189). However, the December 5, 2018 final
office visit note indicates that when Plaintiff first began treatment with Dr. Vijapura he
was “a total mess and he’s thankful with the medication his panic attacks [are] more under
control. Patient states he spend[s] 90 percent of hi[s] life in his room” (Tr. 1232). Dr.
Vijapura’s December 5, 2018 mental status examination characterized Plaintiff’s affect
and insight as appropriate, but described his appearance as fair, speech as pressured, mood
as anxious, judgment as fair, thought process as tangential, and his response to medication
as “anxiety and not sleeping” (Tr. 1233).
On June 29, 2016, Dr. Vijapura completed a Mental Impairment Questionnaire
(Tr. 1042-46). By placing check marks on the form, Dr. Vijapura opined that Plaintiff’s
mental ability to function at work would be precluded 15% or more of an 8-hour workday
in the majority of the functions within the areas of Understanding and Memory,
Sustaining Concentration and Memory, Social Interaction, and Adaptation (Tr. 1045-46).
On the short answer portion of the form, Dr. Vijapura wrote that “Patient suffers from
severe anxiety which interferes w/ his ability to interact w/ people. Symptoms worsen
when away from home. Patient has a hx of outbursts of anger – visible scars on left
forearm. Patient is co-dependent on spouse who accompanies him each visit … Patient
suffers from severe anxiety and social phobia. Patient’s mood is depressed most days”
(Tr. 1043). Dr. Vijapura indicated that “Patient’s symptoms have been resistant to
medication” and described his prognosis as “fair” (Tr. 1043-44). He opined that Plaintiff’s
impairments would cause his absence from work more than three times a month, and that
he would have difficulty working at a regular job on a sustained basis (Tr. 1044).
On November 13, 2018, Dr. Vijapura completed a second Mental Medical Source
Statement applicable to the time frame “December 1, 2013 through present” (Tr. 1229-
1133). Dr. Vijapura checked boxes indicating Plaintiff’s ability to adjust to a job was
“poor” with regard to dealing with work stresses, dealing with public, and maintaining
attention and concentration; “fair” with regard to interacting with supervisors, relating to
co-workers, functioning independently, and using judgment with the public; and “good”
with regard to following the rules (Tr. 1229-30). In support of this assessment, Dr.
Vijapura explained:
Plaintiff suffers from severe anxiety which interferes w/ his ability to interact w/
people. Symptoms worsen when away from home. Patient has a hx of outbursts
of anger and harming self (suicidal tendencies) visible scars on forearms. Pt’s
mood is depressed most days, which impairs concentration and prevent [sic] him
for [sic] completing tasks due to [decreased] energy and mood disturbances pain
restricts activities due to bulging discs.
Tr. 1230. Dr. Vijapura opined that Plaintiff’s ability to adjust to a job was “poor” with
regard to understanding, remembering and carrying out complex job instructions; “fair”
with regard to detailed but not complex job instructions; and “good” with regard to simple
job instructions (Tr. 1231). In support, Dr. Vijapura stated: “Patient is forgetful and
admits to concentration issues. Clinically dx ADHD in 2005” (Tr. 1231). Dr. Vijapura
indicated Plaintiff’s ability to adjust personally and specially was “fair” regarding
maintaining personal appearance and behaving in an emotionally stable manner; and
“good” regarding relating predictably and demonstrating reliability (Tr. 1231). He
explained, “Due to pt’s social phobia, panic attacks may interfere with reliability /
showing up for work. Also depression leading to lack of interest to do activities” (Tr.
1231).
While the ALJ recognized that Dr. Vijapura provided psychiatric care to Plaintiff
for several years, the ALJ assigned Dr. Vijapura’s June 29, 2016 opinion “little weight”
because “the findings are not consistent with his own treatment notes” (Tr. 21). In
support, the ALJ referred to only one treatment note from “around the date of his
opinion” in an attempt to establish that Plaintiff began experiencing less frequent and less
severe panic attacks since the addition of Valium. The ALJ indicated mental status
examination on that date showed “normal” motor activity; “good” speech; and
“appropriate” affect, insight, and judgment (Tr. 21 citing Exhibit 16F/2). Similarly, the
ALJ found Dr. Vijapura’s November 13, 2018 opinion “not consistent with the evidence
as a whole as it relates to the claimant’s overall function and course of treatment” (Tr. 22).
The ALJ opined that the other opinions of record were more consistent with each other
and the medical record as a whole (Tr. 22-23), but cited only to the opinion of consultative
psychologist Nydia Conrad who examined Plaintiff at the request of the SSA on
September 25, 2018 (Tr. 1171-72). The ALJ afforded “great weight” to Conrad’s opinion
as well as the opinions of two non-examining state agency psychologists, Barry Morris
and Lawrence Annis, who reviewed Plaintiff’s records at the administrative level in 2015
(Tr. 20, 22)
Applying the Phillips factors, the Court finds that the ALJ has failed to show “good
cause” for assigning only “little weight” and “some weight” to the opinions of Plaintiff’s
treating psychiatrist, Dr. Vijapura. Phillips, supra, 357 F.3d at 1240-41. The ALJ
discounted Dr. Vijapura’s opinions as inconsistent with the psychiatrist’s own treatment
notes that the ALJ opined reflect mostly normal mental status examinations (Tr. 21, 22-
23). While on some dates throughout his extensive treatment with Dr. Vijapura Plaintiff’s
mental status exams were essentially “normal,” on other dates they were not. Dr.
Vijapura’s office notes show that Plaintiff struggled with severe anxiety that was difficult
to control with medication and interfered with his ability to interact with others outside of
his family. While his reports may not indicate specific laboratory test results, they include
signs and symptoms supporting his diagnoses including depressed mood, fear of panic
attacks, difficulty sleeping, anxiety that doesn’t go away, difficulty with focusing and
concentration, jumpy and easily startled, OCD-like tendencies (fist-making, checking
numbers (TV volume must be 5s or 10s, money in bank must be even numbers)),
compulsion to eat all food until it is gone, inability to leave home independently, distressed
around other people, obsessions with order and list-making, fleeting eye contact, hand
wringing, almost never separates from wife, feeling hopeless, trouble breathing when out
in public, sad all the time, thoughts and urges of self-harm (Tr. 1007, 1009, 1013, 1017,
1015, 1019, 1027, 1029, 1031, 1033, 1038, 1039, 1116, 1118, 1122, 1193, 1203, 1205, 1207,
1215, 1217). Dr. Vijapura used these signs and symptoms to diagnose Plaintiff with
anxiety, panic attacks, and social phobia.
The Social Security Regulations’ definition of “objective medical evidence”
includes medical “signs,” which, in the context of a psychiatric observation, means
“medically demonstrable phenomena that indicate specific psychological abnormalities,
e.g., abnormalities of behavior, mood, thought, memory, orientation, development, or
perception, and must also be shown by observable facts that can be medically described
and evaluated” 20 C.F.R. § 404.1502(g). Certain medical symptoms, when analyzed by
a physician or psychologist, can point out identifiable elements of a specific impairment.
Indeed, for many psychiatric and psychological impairments, medical signs and
symptoms are often the only means available to prove the existence and severity of these
impairments. See e.g. Diaz v. Berryhill, case no. 18-cv-24437-Moreno-Louis, 2020 WL
1308669 (S.D. Fla. Feb. 27, 2020) (citing Ortega v.Chater, 933 F.Supp 1071, 1075 (S.D.
Fla. 1996)) (reversing and remanding where ALJ failed to acknowledge the abundant
documentation of Plaintiff’s depression and anxiety symptoms as being “objective”
evidence to support Plaintiff’s treating physician’s opinion); Gutierrez v. Saul, case no. 1:19-
cv-20859-Moreno-Louis, 2020 WL 4275202 (S.D. Fla. July 7, 2020) (remanding ALJ’s
decision that discounted treating psychiatrist’s opinions finding them inconsistent with his
contemporaneous treatment notes where Court found psychiatrist’s notes set forth
medical signs and symptoms sufficient to justify his diagnoses and treatment).
A “psychological assessment is by necessity based on the patient’s report of
symptoms and responses to questioning” and “it’s illogical to dismiss the professional
opinion of an examining psychiatrist or psychologist simply because the opinion draws
from the claimant’s reported symptoms.” McVey v. Saul, case no. 8:18-cv-2304-T-SPF,
2020 WL 2570073 (M.D. Fla. May 21, 2020) (citing Roundtree v. Saul, case no. 8:18-cv-
1524-T-SPF, 2019 WL 4668174, *4 (M.D. Fla. Sept. 25, 2019) (quoting Aurand v. Colvin,
654 F. App’x 831, 837 (7th Cir. 2016))). In this case, the ALJ concluded that Dr.
Vijapura’s opinions were inconsistent with his records, however, the vast majority of Dr.
Vijapura’s records document abnormalities in Plaintiff’s behavior, mood, thought process,
and daily functioning over a period of several years. The ALJ failed to discuss this
abundant documentation in reaching his decision to accord less weight to Dr. Vijapura’s
opinions. Contrary to the ALJ’s finding, Dr. Vijapura’s opinions were consistent with the
treatment records.
Phillips also dictates that an ALJ has good cause for assigning less weight to a
treating physician’s opinion when the treating physician's opinion was not bolstered by
the evidence; or where the treating physician’s opinion was conclusory or inconsistent
with the physician’s own medical records. Phillips, 357 F.3d at 1240-41. The ALJ
discounted Dr. Vijapura’s November 2018 opinions because they were inconsistent with
other opinions of record. Review of the evidence shows that records from both LMHC
Lamson and consulting psychiatrist Subervi discuss Plaintiff’s struggles with anxiety and
social phobia, and his limitations arising from these impairments. At most, the records
create a trivial tension but do not show a genuine inconsistency. Against this backdrop,
the Court is hard pressed to find substantial evidence supports the ALJ’s decision to accord
only little or some weight to the opinions of Dr. Vijapura, a psychiatrist who treated
Plaintiff regularly for over three years, and whose opinions are consistent with other
record evidence.
The regulations require the ALJ to consider various factors in evaluating medical
opinions, including the length of the treatment relationship and frequency of visits, the
nature and extent of the treatment relationship, how much relevant evidence supports the
opinion, how consistent the opinion is with the record, and whether the physician is a
specialist. 20 C.F.R. §§ 404.1527(c), 416.927(c). The ALJ did not follow this regulatory
scheme. The Court finds the ALJ lacked “good cause” to assign less weight to Dr.
Vijapura’s opinions.
2. LMHC Kathryn Lamson
This segues into the ALJ’s failure to discuss or weigh the opinions of Plaintiff’s
licensed mental health counselor, Kathryn Lamson (Tr. 1096-1100, 1154). Lamson met
with Plaintiff bi-weekly or weekly beginning March 23, 2015, first at the request of the
Florida Department of Vocational Rehabilitation and then at Plaintiff’s request (Tr. 1096-
1100, 1154). Unlike an “acceptable medical source,” the opinions of “other sources” such
as licensed mental health counselors are “not medical opinions … entitled to any special
significance or consideration.” Lange v. Comm’r of Soc. Sec., case no. 2:17-cv-614-FtM-
DNF, 2019 WL 643714, at *4 (M.D. Fla. Feb. 15, 2019). Thus, Lamson’s opinions
“cannot establish the existence of a medically determinable impairment.” Anteau v.
Comm’r of Soc. Sec., 708 F. App’x. 611, 613 (11th Cir. 2017). However, the SSA recognizes
that due to “other sources” assuming a “greater percentage of the treatment and
evaluation functions,” the opinions of these 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 (Aug. 9, 2006). Because
the ALJ is required to consider all relevant evidence when making a disability
determination, “the case record should reflect the consideration of opinions from [“other
sources”] who have seen the claimant in their professional capacity.” Id. The ruling
specifies that the ALJ should consider the same factors set forth in 20 C.F.R. §§
404.1527(c), 416.927(c) when weighing evidence from “other sources.” Id.
The ALJ failed to discuss or weigh Lamson’s records and opinions. Lamson’s July
12, 2016 record indicates Plaintiff presented with depression, anxiety, social phobia, and
panic attacks when she began working with him in March 2015 for weekly individual
therapy. Similar to Dr. Vijapura’s records, Lamson’s records reflect Plaintiff’s subjective
report: “I have a difficult time dealing with people, especially crowds, I find it very hard
to go places alone. My wife stays with me basically all the time. I do not socialize with
anyone outside my family. I am trying to overcome some of my problems so that I can
find a job that I am capable of doing.” (Tr. 1096). Lamson’s August 15, 2015 record
explains that Plaintiff’s shame and ostracism of his criminal history increases his social
phobia and results in the need for him to be with his wife when in public. “He lives in
fear that he will be falsely accused of violating his probation and will be sent back to
prison” (Tr. 1097). Lamson opined that although Plaintiff worked in the past, those jobs
“came to him” and allowed him to work in socially isolated and predictable environments.
She continued:
he has functioned successfully when put in front of a keyboard, away from others,
but that has been the extent of his adult work capacity; and that was his highest
level of functioning. Currently, his depression and anxiety may even impede the
above. He is a very bright individual but his emotional issues are debilitating.
His plan is to apply for disability, continue with therapy, and complete his legal
tasks. His long term goal is to return to full time work (with his wife, starting a
dog boarding day care in their home) where he can once again support himself
and his family.
R. 1097.4
While the ALJ was free to reject Lamson’s opinions, he was not free to totally
ignore her opinions as they are provided by a source who met one-on-one with Plaintiff
during the relevant time frame and formed opinions based on her observations and
expertise regarding Plaintiff’s job-related limitations. See Naylor v. Astrue, case no. 2:09-
cv-844-FtM-DNF, 2011 WL 972508, *7-8 (M.D. Fla. Mar. 18, 2011) (citing King v. Astrue,
case no. 3:09-cv-229-J-MCR, 2010 WL 1038476 (M.D. Fla. Mar, 19, 2010)). On remand,
the ALJ is directed to consider the medical evidence from Lamson and give it the weight
deemed appropriate pursuant to SSR 06-03p.
3. Felix Subervi III, Ph.D.
On remand, the ALJ shall also reconsider the opinions of psychologist Felix
Subervi III who evaluated Plaintiff at the request of his attorney on August 15, 2016, and
administered the Millon Clinical Multiaxial Inventory III and the Vineland Adaptive
4 In a 2017 report, Lamson explained the extent of Plaintiff’s “much compromised world”
(Tr. 1154). She explained that Plaintiff was completing a sex offender program but
planned to continue attending since it was beneficial to him. Plaintiff reported that he had
asked the program leader, Dr. Wright, to call on him in class when a question was posed.
“Mr. Furno explained that he could not initiate a verbal response and was too anxious to
raise his hand but was always prepared to answer. That classroom was one of the few
public places where he felt comfortable speaking” (Tr. 1154). Lamson observed that
Plaintiff had been coming to her office for over three years and his “facial expression and
body language [show that] he continues to exhibit significant anxiety when [she] receives
him from the waiting room. Yet, he would also consider that waiting room to be another
one of his comfortable public spaces.” Lamson opined that these examples highlight
Plaintiff’s “determination to accomplish his goals … and reflect [that he] continues to
operate within a much compromised world” (Tr. 1154).
Behavioral Scale assessments (Tr. 1101-1114).5 The Eleventh Circuit recognizes that
opinions from consultative examiners are not owed the same deference as opinions from
treating physicians. McSwain v. Bowen, 814 F.2d 617, 619 (11th Cir. 1987). Nonetheless,
the regulations require an ALJ to weigh their opinions based on the factors set forth in §§
404.1527(c)(3-6), 416.927(c)(3-6), such as the level of support provided for the opinion
and how consistent the opinion is with the record as a whole. Id. The ALJ summarized
Dr. Subervi’s report:
On August 15, 2016, Dr. Felix Subervi examined the claimant in a psychological
evaluation. A mental status examination showed [his] was normal. He appeared
to be a very anxious person with good eye contact. He was somewhat fidgety.
His speech was normal in rate. There was no abnormality in his thought content.
He denied delusions. He was oriented to person, place, time and situation. His
judgment was questionable. Dr. Subervi opined that the claimant if he was to
work, the job will have to be found and given to him as he will not pass a job
interview. Furthermore, it will have to be part time only, but then won’t be able
to support himself or family, perhaps a job with very simple tasks, where he will
not get too distracted and able to complete it. He will need a very patient, non
threatening supervisor and no co-workers around. In other words, a job for a
mentally disabled individual. He will not be able to perform like a regular
employee. Putting pressure on him to do so will make him decompensate further.
Dr. Subervi opined that the claimant will not be able to earn a living.
Tr. 21-22 (citing Ex. 20F). The ALJ assigned “little weight” to Dr. Subervi’s opinion,
finding it “contrasts sharply with other evidence of record, which renders it less
persuasive” (Tr. 22). In support, the ALJ stated:
the record showed that the claimant stated he had mild anxiety symptoms;
however, he was able to manage his symptoms. He reported that the medications
were working well (Exhibit 27F, 5-8) In addition, he reported that he had less
5 The Millon Clinical Multiaxial Inventory III “reports patient personality characteristics
and [assesses] clinical syndromes within the context of those characteristics.”
Pearsonassessments.com/store/assessments. The Vineland Adaptive Behavioral Scale
“aids in diagnosis [and] provides valuable information for developing educational and
treatment plans.” Id.
frequent and less severe panic attacks since the addition of Valium. His speech
was good. His affect was appropriate. He had appropriate insight and judgment.
(Exhibit 16F/2) Finally, these are opinions on an issue reserved for the
Commissioner.
Tr. 22. The ALJ recognized that the weight assigned to opinions depends upon whether
the opinions are supported by specific and complete clinical findings and are consistent
with the rest of the evidence in the file (Tr. 22). However, in assigning “little weight” to
Dr. Subervi’s opinions, the ALJ referred only to two of Dr. Vijapura’s treatment notes.
While the ALJ’s citations to these two notes are accurate, they are incomplete. These
notes also reflect Plaintiff’s anxiety prevented him from leaving his home without his wife
(Tr. 1007) and to shop with his grandmother (Tr. 1193), and mental status assessments of
depressed and anxious mood (Tr. 1007) and tangential and circumstantial thought process
(Tr. 1194). Hence, the Court agrees with Plaintiff’s assertion that the ALJ erred in
weighing Dr. Subervi’s report. On remand, the ALJ should reconsider Dr. Subervi’s
opinions based on the factors set forth in §§ 404.1527(c)(3-6), 416.927(c)(3-6), such as the
level of support provided for the opinions and how consistent the opinions are with other
opinions and evidence in the record.
4. State Agency and psychological consultant opinions
Lastly, on remand, the ALJ should also reconsider the weight assigned to the
opinions of the state agency non-examining consultants, Barry Morris, Ph.D. (Tr. 98-100)
and Lawrence Annis, Ph.D. (Tr. 143-145), and to the opinion of psychological consultant
Nydia Conrad, Psy.D. who evaluated Plaintiff on September 25, 2018 (Tr. 1168-72). The
ALJ assigned “great weight” to Annis’s and Morris’s opinions that Plaintiff had moderate
limitations in restriction of activities of daily living, moderate limitations in difficulties in
maintaining social functioning and moderate difficulties in maintaining concentration,
persistence, and pace (Tr. 20). The regulations specify that state agency consultants are
highly qualified specialists who are also experts in the Social Security disability programs
and, thus, their opinions are entitled to great weight if the evidence supports their
assessments. See 20 C.F.R. §§ 404.1527(e), 416.927(e). However, “[t]he weight due to a
non-examining physician’s opinion depends … on the extent to which it is supported by
clinical findings and is consistent with other evidence.” See Jarrett v. Comm’r of Soc. Sec.,
422 F. App’x. 869, 873 (11th Cir. 2011)); 20 C.F.R. §§ 404.1513a(b)(1), 416.913a(b)(1).
As Plaintiff indicates, these consultants both assessed Plaintiff’s limitations in 2015, and
thus, did not have before them Plaintiff’s subsequent treatment records.
Similarly, the ALJ should reconsider the “great weight” accorded to Conrad, the
consultative psychologist to whom the ALJ cited as the basis for rejecting the opinions of
Plaintiff’s long-term treating psychiatrist, Dr. Vijapura (Tr. 23). The ALJ pointed to
Conrad’s opinion that Plaintiff had mild to moderate limitations in the ability to
understand, remember and carry out instructions; moderate limitations in the ability to
appropriately interact with supervisors, co-workers, and the public; and moderate
limitations in the ability to respond to changes in a routine work setting (Tr. 23). Like Dr.
Vijapura and others offering opinion evidence, Conrad opined that Plaintiff has “difficulty
with focusing and concentration due to anxiety and depression [and has a] history of
impaired judgment” (Tr. 1171). She also opined that Plaintiff’s “anxiety creates problems
with interpersonal relationships [and that he] becomes nervous and confused easily” (Tr.
1172). Importantly, Conrad indicated that she did not have sufficient information to form
an opinion within a reasonable degree of medical or psychological probability as to past
limitations (Tr. 1172).
Accordingly, the case is remanded to the ALJ to properly assess the weight given
to Dr. Vijapura, LMHC Lamson, psychologists Subervi and Conrad, and state agency
non-examining consultants, Morris and Annis, and to provide sufficient support for the
Court’s review.
B. RFC and VE Hypothetical
It is unnecessary to address the remaining issues– whether the ALJ’s RFC analysis
is supported by substantial evidence and whether the ALJ erred in evaluating Plaintiff’s
subjective complaints. However, the Court points out that on remand, in assessing
Plaintiff’s RFC, the ALJ may decide not to include all of the limitations imposed by those
providing medical or psychological opinions.6 Relatedly, the ALJ is not required to
include findings in the VE hypothetical that the ALJ determines to be
unsupported. Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1161 (11th Cir. 2004).
Finally, in light of the Court’s remand for re-evaluation of the medical opinion evidence,
the ALJ is directed to re-evaluate Plaintiff’s subjective complaints on remand too.7
6 RFC is an assessment based on all relevant medical and other evidence of Plaintiff’s
ability to work despite his impairments. Castle v. Colvin, 557 Fed. App’x. 849, 852 (11th
Cir. 2014) (citing Lewis v. Callahan, 125 F.3d 1436 (11th Cir. 1987)). In rendering the RFC,
the ALJ must consider the medical opinions in conjunction with all the other evidence of
record and consider all the medically determinable impairments, including impairments
that are not severe, and the total limiting effects of each. 20 C.F.R. §§ 404.1520(e),
404.1529(c)(3), 404.1545, 416.920(e), 416.929(c)(3), 416.945.
7 In the decision, the ALJ found Plaintiff’s subjective complaints “partially consistent with
the evidence of record” (Tr. 19).
Conclusion
Accordingly, after consideration, it is hereby
ORDERED:
1. The decision of the Commissioner is REVERSED and REMANDED to the
Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further
administrative proceedings consistent with this Order.
2. The Clerk is directed to enter final judgment in favor of Plaintiff and close the
case.
ORDERED in Tampa, Florida, on March 11, 2021.
Ere
SEAN P. FLYNN
UNITED STATES MAGISTRATE JUDGE
22