Tumlin v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

SANDRA GAYLE TUMLIN,

Plaintiff,

vs.

Case No. 2:19-cv-00457-JLB-NPM

COMMISSIONER OF SOCIAL

SECURITY,

Defendant.

_________________________________

ORDER

Plaintiff Sandra Gayle Tumlin applied for disability insurance benefits on

January 15, 2018, alleging disability beginning November 24, 2016. After her

application was denied originally and on reconsideration, Ms. Tumlin requested a

hearing before an administrative law judge (“ALJ”), which took place in Fort Myers,

Florida on January 4, 2019. By written decision dated October 8, 2019, the ALJ found

Ms. Tumlin was not disabled. (Doc. 19-2.) On May 8, 2019, the Social Security

Appeals Council denied Ms. Tumlin’s request for review, and Ms. Tumlin

subsequently filed this action seeking reversal of the Commissioner’s final decision

denying disability benefits. The Magistrate Judge filed a Report and

Recommendation (“R&R”) on September 25, 2020, recommending the Commissioner’s

decision be affirmed. (Doc. 32.) Ms. Tumlin filed objections to the R&R on October

9, 2020 (Doc. 33), and the Commissioner filed a response to those objections on

October 22, 2020 (Doc. 34). The matter is now before the undersigned Judge.

If objections to a report and recommendation are filed, the district judge must

“make a de novo determination of those portions of the report or specified proposed

findings or recommendations to which objections are made.” 28 U.S.C. § 636(b)(1).

The district court “may accept, reject, or modify, in whole or in part, the findings or

recommendations made by the magistrate judge.” Id. After a careful review of the

record, the Court agrees with Ms. Tumlin that the ALJ’s decision is not supported by

substantial evidence. Accordingly, the Court declines to adopt the R&R, and, for the

reasons discussed below, reverses the decision of the Commissioner and remands the

case to the Social Security Commission for further proceedings.

BACKGROUND

A. MEDICAL DIAGNOSES AND SYMPTOMS

At the time of her administrative hearing, Ms. Tumlin was forty-eight years

old with an eighth-grade education and past work experience as a waitress and fast

food worker. She was living with her boyfriend and had been unemployed since

November 2016. Ms. Tumlin alleges that she is disabled due to mental health issues.1

She suffers from depression, anxiety, panic attacks, and agoraphobia. (Doc. 19-2 at

1 Ms. Tumlin’s appeal from the Commissioner’s denial of benefits raised issues related

to her alleged physical limitations as well as mental limitations. But her objections

before this Court challenge only the Magistrate Judge’s analysis of her mental

limitations. Accordingly, the Court need not address the physical limitations issues

discussed in the R&R. As to those issues, the R&R’s recommendations are neither

accepted nor rejected, allowing for a full review of the record upon remand to the ALJ.

See Demenech v. Sec’y of the Dep’t of Health & Human Servs., 913 F.2d 882, 884

(11th Cir. 1990) (per curiam) (concluding that certain arguments need not be

addressed when the case would be remanded on other issues).

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47.) She has been diagnosed by mental health specialists with various disorders,

including depression, bipolar disorder, anxiety disorder, and post-traumatic stress

disorder (PTSD). (Id. at 55-56.) She takes prescription medications for these

disorders, including Valium for sleep, two different doses of Lamictal for anxiety, two

different doses of Wellbutrin for depression, and Abilify for bipolar disorder. (Id. at

58-59.) The medications help her “[s]omewhat, [but] not completely,” and her doctors

are “still changing medications around [ ] to try to get it right.” (Id. at 59.)

Ms. Tumlin sees her therapist once a week, and she sees a psychiatric nurse

practitioner for prescription management once a month. (Id. at 65.)

At the hearing before the ALJ, Ms. Tumlin testified to extreme difficulty

staying focused or concentrating, such that she could not read more than one page of

a book without “zon[ing] out where [she] [is] just staring straight forward for no

reason.” (Id. at 57.) She had not “driven [a car] in over a year” because she “space[d]

out” when she was behind the wheel” (id. at 60), and she could not watch a thirty-

minute television show because she could not stay focused that long (id. at 62-63).

She testified to keeping a chart on her refrigerator to keep track of certain daily tasks

she otherwise would forget to do, like taking a shower, doing laundry, and reading

one page of a book per day. (Id. at 60-61.)

Ms. Tumlin testified that, as a result of “[e]xtreme[ ]” abuse and trauma she

experienced in her past, she had “memories or flashbacks” on a daily basis. (Id. at

62.) She testified to having crying spells at least every other day “for no reason,” and

panic attacks lasting up to thirty minutes three times or more per week. (Id. at

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60-63.) She described the panic attacks as “hyperventilating,” and feeling like she

could not breath, “like something is choking [her]” and she starts “shaking.” (Id. at

60.) She suffers anxiety from being around other people even if she is at home and

the other people are friends or relatives just visiting for short periods of time. (Id.)

Ms. Tumlin testified that she was fired from her last job as a waitress in

November 2016 for having too many panic attacks while on the job. (Id. at 61-62.)

Since then, she never wants to leave the house because she avoids being around

people by simply staying home. (Id. at 60, 63-64.) She testified that it has been over

two years since she has gone anywhere by herself, and that, even with her boyfriend

by her side, she has left the house only to go to doctor’s appointments and to “grocery

shop after midnight.” (Id. at 64.) She does not believe she could work another job as

a server because “the panic attacks just come out of [sic] no reason. Sometimes they

come out of memories or thoughts that are going through my head. . . . [T]he therapist

said that that was normal.” (Id. at 64-65.)

B. MEDICAL RECORDS

Ms. Tumlin’s medical records show that she has been in individual therapy on

a weekly basis since at least November 2017. An assessment on November 21, 2017,2

indicates that Ms. Tumlin reported a history of diagnosed anxiety and depression

2 The assessment was taken by Shantell Pepe of Crossroads Behavioral Center.

Ms. Pepe also prepared the progress mental health notes from this time period.

Ms. Pepe’s name appears without any title, but the Court infers from the records that

she was Ms. Tumlin’s treating therapist at the time.

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dating back several years; that she received out-patient mental health therapy from

January 2017 through May 2017 when she lived in Georgia; that she has a past

history of rape and physical and emotional abuse by an ex-husband; and that she has

no memory prior to the age of twelve (which later medical records indicate is the age

when the rape occurred). (Doc. 19-8 at 58-59 (Ex. 4F/17-18).) The report indicates

past diagnoses of major depressive disorder, generalized anxiety disorder, and PTSD.

(Id.)

A week later, Ms. Tumlin saw a psychiatric nurse practitioner (Max Belot,

ARNP), who reported that she appeared anxious but otherwise normal. (Id. at 55

(Ex. 4F/14).) During the session, they discussed Ms. Tumlin’s symptoms of

depression, mania, generalized anxiety, obsessive-compulsive disorder, PTSD, and

specific phobias (crowds and claustrophobia). (Id.)

On December 1, 2017, a progress mental health note indicates that Ms. Tumlin

“was tearful and observed to have a somber mood,” and that she “was unable to

articulate the reason for her sadness.” (Id. at 54 (Ex. 4F/13).) A medication

management report from an appointment with Nurse Belot on December 11, 2017,

diagnoses Ms. Tumlin with major depressive disorder (recurrent and moderate);

generalized anxiety disorder, and PTSD. (Id. at 51 (Ex. 4F/10).) On December 20,

2017, a progress mental health note reports that Ms. Tumlin presented with an

affect/mood that was “typical … for this patient.” (Id. at 49 (Ex. 4F/8).) She reported

physical violence from her first husband that occurred when she was approximately

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15-20 years old, and that one of the encounters was “particularly brutal and

[Ms. Tumlin] reports almost dying.” (Id.)

On January 5, 2018, Ms. Tumlin reported to her therapist that she had applied

for two jobs but was “anxious about the idea of meeting new people.” (Id. at 48 (Ex.

4F/7).) On January 16, 2018, Nurse Belot described Ms. Tumlin’s affect as

“appropriate[ ],” her mood as “euthymic,” her speech as “normal,” and her insight and

judgment as “intact.” (Id. at 46 (Ex. 4F/5).) However, the same report also states

that “[t]he patient has major stress of medical illness in last 2 years”; that she is

diagnosed with major depressive disorder, generalized anxiety disorder, and PTSD;

that she takes at least four medications with consideration being given for a fifth; and

that her “clinical status” showed “[n]o improvement.” (Id. at 47 (Ex. 4F/6).)

On February 9, 2018, Ms. Tumlin’s mental health progress report states that

her affect and mood were “typical … for this patient”; she “presents in a cheerful

happy mood”; she reports “spending time writing poetry, knitting, and taking walks;

while she admits to periodic instances of irritability,” she “has been using a punching

bag to help with such anxiety”; and “she continues to have difficulty with focus and

attention which prevents her from reading books.” (Id. at 45 (Ex. 4F/4).) The

therapist saw “[s]ignificant improvement,” thought that “[s]ome progress [was]

apparent, and that Ms. Tumlin was “[m]aintaining past gains/stable.” (Id.) Mental

health progress reports from two and four weeks later (February 23, 2018 and March

2, 2018) are similar, except that they note Ms. Tumlin was informed that “her therapy

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[with that therapist] would come to an end after March 9th,” and she had anxiety

about having a new therapist. (Id. at 43-44 (Ex. 4F/2-3).)

Ms. Tumlin transitioned to a new treatment center in March 2018. In a mental

health assessment on approximately April 4, 2018, Ms. Tumlin reported depression,

anxiety, and PTSD. (Doc. 9-11 at 43 (Ex. 13F/42).)3 Her current symptoms included

“being anxious in the context of being overwhelmed, excessively worried, poor

concentration, sleep disturbance, irritable, and racing thoughts.” (Id.) She reported

physical symptoms, including nervousness, difficulty concentrating, and muscle

tension. (Id.) She reported a history of “limited-symptoms panic attacks” and

“recall[ed] one significant unprovoked panic attack, lasting approximately 5 minutes

where she feels she is shocking [sic].” Id. at 42 (Ex. 13F/41).) Her symptoms had

been present for several years ago, but had worsened in the last two months. (Id.)

She felt the medications were not working. (Id.) “[A]dditionally [she] expresse[d]

feeling low in energy, decreased interest in activities, guilt, worthlessness,

hopelessness, and difficulty sleeping.” (Id.) Ms. Tumlin reported that her symptoms

started “with depressive disorder since she was 14 and started drinking alcohol.

When she was 15, she got married and for 5 years was sexually, emotionally, and

physically abused. Currently she is experiencing vivid dreams and having flashbacks

3 It is difficult to discern from the way the medical notes were kept which medical

practitioner from Ms. Tumlin’s new therapy center made which comments in the

notes. But they were those of either Ms. Tumlin’s treating psychiatric nurse

practitioner, Garbriel Rivera Torres, or her treating therapist, Jeri Hosick.

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about those past events.” (Id.)

Two weeks later, April 18, 2018, Ms. Tumlin reported improved depression,

but worsening anxiety, frequent irritability, and “paranoia, evidenced by the idea of

somebody watching her back.” (Id. at 37 (Ex. 13F/36).) Ms. Tumlin was reported as

being “comfortable speaking, [and] social communication [was] adequate.” (Id.) Her

listed diagnoses included major depressive disorder, chronic alcoholism in remission,

chronic post-traumatic stress disorder, and panic disorder. (Id. at 36 (Ex. 13F/35).)

Her mental status exam on this date indicates: “Intelligence: average. Mood:

irritable.” (Id. at 38 (Ex. 13F/37).)

On June 11, 2018, Ms. Tumlin reported that, since the last assessment, she

had continuing depression, “worsening in the anxiety episodes, excessive worry,

restless, poor concentration, overwhelmed, try [sic] to avoid people since she starts

feeling bad. [She] report[ed] frequently irritable and mood change . . . [and] history

of paranoia, evidenced by the idea of somebody watching her back.” (Id. at 32 (Ex.

13F/31).) During the assessment, it was noted that she “was comfortable speaking,

[and her] social communication [was] adequate.” (Id.) Her mental status exam on

this date indicates: “Behavior: guarded. Speech: pressured. Perception:

Paranoia. Intelligence: average. Mood: sad and irritable. Affect: constricted.” (Id.

at 33 (Ex. 13F/32).)

On July 9, 2018, Ms. Tumlin reported that her medications were not working.

(Id. at 27 (Ex. 13F/26).) She reported that she was still depressed, and her anxiety

episodes were worsening. (Id.) She reported “excessive worry, restless, poor

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concentration, overwhelmed, try[ing] to avoid people since she starts feeling bad[,]

frequently irritable and mood change to the point that she prefers being away from

people.” (Id.) There does not appear to be any mental status exam for this date.

On August 6, 2018, Ms. Tumlin reported that the medications were more

effective and that she noticed some improvement in her depression. (Id. at 22 (Ex.

13F/21).) However, she continued to report “symptoms of anxiety episodes, excessive

worry,” and she “present[ed] excessive worry, restless, poor concentration,

overwhelmed, try to avoid people since she starts feeling bad.” (Id.) Again, there does

not appear to be any mental status exam for this date.

Two additional medical reports for later sessions (September 10, 2018, October

1, 2018) with either the therapist or the nurse practitioner are similar to the above.

Ms. Tumlin reported at one of those sessions that “she does not trust anybody because

‘most people are not good persons.’” (Id. at 18 (Ex. 13F/17).) At another, she reported

“feeling better but at times she feels hyper and all over the place.” (Id. at 13 (Ex.

13F/12).) She did not think the medications were being fully effective; she was still

experiencing depression, but not as severe as before; she was still having anxiety

episodes but reduced in frequency; and she had not experienced episodes of paranoia

during the last three weeks. (Id. at 13-14 (Ex. 13F/12-13).) There does not appear to

be any mental status exams for these dates.

On November 21, 2018, Ms. Tumlin was seen by the psychiatric nurse “for

medication management” who noted that she reported “doing well with regiment.”

(Id. at 8 (Ex. 13F/7).) The nurse noted that Ms. Tumlin was “alert, oriented times 3,

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calm, cooperative, forthcoming with organized thinking process. . . . Speech [was]

normal . . . Mood [was] entirely normal with no signs of depression or mood elevation.

Affect [was] appropriate [and] . . . congruent with Mood. There were no signs of

anxiety . . . [or] hallucinations.” (Id.)

The last medical note in Ms. Tumlin’s records is dated December 14, 2018. (Id.

at 3 (Ex. 13F/2).) Ms. Tumlin had stopped taking one of her medications “due [to] non

therapeutic response”; she denie[d] improvement [from] her depressed state”; and she

“report[ed] paranoia.” (Id. at 5 (Ex. 13F/4).) The psychiatric nurse noted that

Ms. Tumlin was “alert[,] oriented to all spheres, but tearful with depressed mood and

affect.” (Id.)

C. MENTAL FUNCTIONING ASSESSMENTS

The ALJ considered two medical assessments of Ms. Tumlin’s mental health

limitations that were part of the record.4

1. STATE ASSESSMENT (RECONSIDERATION)

A mental functioning assessment was conducted by the state psychologist in

August 2018. (Doc. 19-3 at 14 (Ex. 3A).) At this time, Ms. Tumlin reported “[e]xtreme

dramatic PTSD cause [sic] depression and anxiety and concentration to be worse [sic]

and will take some time to treat. [I]nsomnia is up and down[,] mental health is still

4 The ALJ gave “little weight” (Doc. 19-2 at 31) to a third assessment—the initial

assessment performed by the state examiner in June 2018—and so the Court will not

discuss it.

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trying to adjust [to] medication to help some of these things. Panic and anxiety more

likely to happen around to[o] many people.” (Id. at 15 (Ex. 3A/2).)

The assessment report found severe impairments in the following categories:

(1) Depressive, Biopolar and Related Disorders, (2) Anxiety and Obsessive-

Compulsive Disorders, and (3) Trauma-and Stressor-Related Disorders. (Id. at 20

(Ex. 3A/7).) The report concluded that Ms. Tumlin had “severe mental impairments

. . . with limitations exacerbated by psychosocial stressors.” (Id. at 21, 26 (Ex. 3A/8,

13).) The report found that Ms. Tumlin’s statements about the intensity, persistence,

and functionally limiting effects of the symptoms [were] substantiated by the

objective medical evidence alone.” (Id. at 22 (Ex. 3A/9).) However, the report noted

the absence of “a medical opinion from any medical source.” (Id.) Thus, [b]ased on

the totality of evidence” before the examiner at that time, the examiner found that

Ms. Tumlin was only moderately limited in her ability to perform in most categories

of mental functioning—including “ability to interact appropriately with the general

public,” “ability to accept instructions and response appropriately to criticism from

supervisors,” and “ability to get along with coworkers or peers.” (Id. at 25 (Ex.

3A/12).) Based on only moderate limitations, the report concludes that Ms. Tumlin

was capable of performing “simple routine task[s].” (Id.)

2. DR. HOSICK’S ASSESSMENT

On October 4, 2018, approximately two months after the medical assessment

prepared by the state psychologist, a Mental Residual Functional Capacity (“MRFC”)

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Assessment was completed by Dr. Jeri Hosick. (Doc. 19-10 at 31 (Ex. 11F).)5 The

Assessment indicates that Ms. Tumlin has “Marked” limitations (defined as 33-48%

of the time) in four categories of mental functioning. (Id. at 31-32 (Ex. 11F/2-3).)6 It

further indicates that Ms. Tumlin has “Extreme” limitations (defined as 49-64% of

the time) in two other categories of mental functioning. (Id.)7 Finally, the

Assessment finds that Ms. Tumlin has “Very Extreme” limitations (defined as “65%

of the time (Catastrophic and Very Severe”)) in eleven categories of mental

functioning. (Id.)8

5 The Commissioner contends the evidence does not support Ms. Tumlin’s assertion

that Dr. Hosick was her treating therapist, noting that there are no treatment notes

from Dr. Hosick in the record. (Doc. 28 at 21 n.11.) The Court agrees that those

notes, if they exist and were obtainable, would have been beneficial to the ALJ’s

review here. Nevertheless, the record adequately demonstrates that Dr. Hosick

treated Ms. Tumlin, as shown by the numerous references in the medical records to

upcoming therapy sessions with Dr. Hosick (from approximately April 5, 2018

through at least December 14, 2018, one month before Ms. Tumlin’s disability

hearing). (See Doc. 19-7 at 351, 375, 395, 423.) Ms. Tumlin also testified that she

saw her therapist—“Jerry”—once a week. (Doc. 19-2 at 65.)

6 The “marked” limitations categories included: (1) ability to understand and

remember very short and simple instructions; (2) ability to carry out detailed

instructions; (3) ability to work in coordination with or proximity to others without

being distracted by them; and (4) ability to accept instructions and respond

appropriately to criticism from supervisors. (Doc. 19-10 at 31-32 (Ex. 11F/2-3).)

7 The two categories of mental functioning in which Ms. Tumlin’s limitations were

said to be “extreme” included: (1) ability to interact appropriately with the general

public, and (2) ability to set realistic goals or make plans independently of others.

(Doc. 19-10 at 31-32 (Ex. 11F/2-3).)

8 The eleven categories of mental functioning in which Ms. Tumlin’s limitations were

said to be “very extreme” included: (1) ability to understand and remember detailed

instructions; (2) ability to carry out detailed instructions; (3) ability to maintain

attention and concentration for extended periods; (4) ability to perform activities

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Dr. Hosick’s Assessment also includes written comments. Dr. Hosick notes

that Ms. Tumlin has been diagnosed with Bipolar II disorder, panic disorder with

agoraphobia, and chronic PTSD. (Id. at 32 (Ex. 11F/3).) She opines that these mental

disorders “severely impair [Ms. Tumlin’s] capacity to respond appropriately

emotionally and cause significant cognitive impairment,” and that “[h]er

panic/agoraphobia prevents her from working in a social setting.” (Id.)

D. THE ALJ’S DECISION

The Social Security Regulations outline a five-step sequential evaluation

process to determine whether a claimant is disabled. 20 C.F.R. § 404.1505(a); id.

§ 1520(a)(4); see Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir.

2011). At the first three steps of the process, the ALJ found that Ms. Tumlin was not

engaged in substantial gainful activity, and that she had one or more severe mental

impairments, namely, generalized anxiety disorder, depression disorder with later

diagnosed bipolar disorder. (Doc. 19-2 at 25.)9 The ALJ found that Ms. Tumlin’s

within a schedule, maintain regular attendance, and be punctual within customary

tolerance; (5) ability to sustain an ordinary routine without special supervision;

(6) ability to complete a normal workday and workweek without interruptions from

psychologically based symptoms and to perform at a consistent pace without an

unreasonable number and length of rest periods; (7) ability to ask simple questions

or request assistance; (8) ability to get along with coworkers or peers without

distracting them or exhibiting behavioral extremes; (9) ability to respond

appropriately to changes in the work setting; (10) ability to be aware of normal

hazards and take appropriate precautions; and (11) ability to travel in unfamiliar

places or use public transportation. (Doc. 19-10 at 31-32 (Ex. 11F/2-3).)

9 The ALJ did not find that Ms. Tumlin had any severe impairments in the category

of Trauma-and Stressor-Related Disorders, despite documentation of her history of

trauma and PTSD diagnosis going back to the earliest medical notes in the record

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mental impairments, although severe and significantly limiting in her ability to do

basic work activities, did not meet or equal a listed impairment. (Id. at 25-26.)

The ALJ then proceeded to assess Ms. Tumlin’s residual functional capacity

(“RFC”) given the listed impairments and “considering all symptoms.”10 The ALJ

explained that, in assessing Ms. Tumlin’s RFC, he gave “little weight” to Dr. Hosick’s

Assessment. (Id. at 30.) According to the ALJ, the mental functioning limitations in

Dr. Hosick’s Assessment of “mostly marked, extreme, or very extreme” were “vastly

contrasted to the relatively normal mental status examination findings throughout

the record.” (Id.) “Because of the[se] [so-called] overwhelming normal psychiatric

findings,” the ALJ gave Dr. Hosick’s Assessment “little weight.” (Id. at 31.) On the

other hand, the ALJ gave the state agency assessment at the reconsideration level

“great weight.” (Id.) The ALJ found the opinions of the state psychologist in that

assessment were “well supported by the above-cited medically acceptable clinical

(Doc. 19-8 at 18, 54-55 (Ex. 4F/13-14, 18)), and despite the state psychologist’s

recognition of a severe impairment in the Trauma-and Stressor-Related Disorders

category in the August 2018 state assessment (Doc. 19-3 at 20). The ALJ found that

“the additional impairments medically determined in the record to be non-severe

because these either did not exist for a continuous period of twelve months, were

responsive to medication, did not require significant medical treatment, or did not

result in any continuous exertion or non-exertion functional limitations.” (Doc. 19-2

at 25.)

10 An individual’s RFC is her “ability to do physical and mental work activities on a

sustained basis despite limitations from her impairments.” 20 C.F.R. § 404.1520(e).

In determining a claimant’s RFC, the ALJ must consider all of the claimant’s

impairments including those that are not severe. Id.; 20 C.F.R. § 1404.1545; SSR 96-

8p; see Doc. 19-2 at 25.

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findings and laboratory techniques; are consistent with the medical evidence of

record, both before and after consultant review[11, and represent a careful analysis of

the relationship between the identified impairments and resulting limitations.” (Id.)

Based on this evaluation of the evidence, the ALJ found that Ms. Tumlin had

a “moderate limitation” in three categories of mental functioning: (1) interacting with

others; (2) concentrating, persisting, or maintaining pace; and (3) adapting or

managing oneself. (Id. at 26-27.) The ALJ determined that these moderate

limitations in mental functioning impacted Ms. Tumlin’s RFC in the following

manner:

[C]laimant has the residual functional capacity to perform

light work . . . except [that she is] precluded from

performing complex and detailed tasks; no more than

occasional interaction with supervisors and the public; and

no more than occasional changes in a workplace setting.

(Id. at 27.) This RFC finding meant that Ms. Tumlin could not perform her past

relevant work as a waitress or sales clerk. (Id. at 32.) Based on the testimony of a

Vocational Expert (“VE”), however, the ALJ found that Ms. Tumlin’s RFC permitted

her to perform the requirements of at least two other jobs in the economy

(housekeeper and courier), and that she thus was not disabled. (Id. at 33.)

STANDARD OF REVIEW

Judicial review of the Commissioner’s final decision as to disability is limited.

11 The ALJ’s reference to “consultant review” appears to be a reference to the state

psychologist who performed the assessment. The state assessment, however, was a

medical records review, and therefore, technically, was not a “consultant review.”

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The Court must determine only whether there is substantial evidence to support the

factual findings of the Commissioner, and whether the correct legal standards were

applied. Biestek v. Berryhill, 139 S. Ct. 1148, 1152 (2019) (“The agency’s factual

findings on that score are ‘conclusive’ in judicial review of the benefits decision so long

as they are supported by ‘substantial evidence.”’ (quoting 42 U.S.C. § 405(g)); Lacina

v. Comm’r, Soc. Sec. Admin., 606 F. App’x 520, 525 (11th Cir. 2015) (per curiam)

(citing Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005)). “Within this narrowly

subscribed role, however, [courts] do not act as automatons.” MacGregor v. Bowen,

786 F.2d 1050, 1053 (11th Cir. 1986). Instead, the court “must scrutinize the record

as a whole to determine if the decision reached is reasonable and supported by

substantial evidence.” Id. If the Commissioner’s decision is supported by substantial

evidence, the court must affirm even if the proof predominates against it. Dyer, 395

F.3d at 1210. But if the ALJ “fail[s] to apply the correct law or to provide the

reviewing court with sufficient reasoning for determining the proper legal analysis

has been conducted,” the court must reverse. Keeton v. Dep’t of Health & Human

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

DISCUSSION

Ms. Tumlin contends that she is disabled because of mental impairments

consisting of daily panic attacks, anxiety, flashbacks due to past trauma, extreme

difficulty holding attention for even short of periods of time, and severe difficulty in

leaving her home. (Doc. 19-7 at 266 (Ex. 22E).) She objects to the R&R on the ground

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that the Magistrate Judge should have found that the ALJ’s RFC finding as to her

mental limitations is not supported by substantial evidence.

I. IMPROPER CHARACTERIZATIONS OF MS. TUMLIN’S ARGUMENTS

In its brief, the Commissioner (Doc. 34 at 2) mischaracterizes Ms. Tumlin’s

arguments for why the ALJ’s assessment of her mental limitations should be

reversed. He attempts to frame her argument primarily as presenting a question as

to the proper legal standards to be applied to medical opinion evidence, when in fact

Ms. Tumlin is presenting a straightforward sufficiency of the evidence argument.

The Commissioner argues that Ms. Tumlin’s substantial evidence argument

fails because the new Social Security regulations applicable to Ms. Tumlin’s

application for benefits no longer require special deference to treating physicians.

(Doc. 28 at 16–21; see also Doc. 34 at 2 (“Plaintiff does not demonstrate that the ALJ’s

decision did not comport with the new regulations.”).) The new rules “significantly

alter how the agency considers medical opinions and prior administrative medical

findings for claims filed on or after March 27, 2017.” (Doc. 28 at 17.) The primary

change is that the new regulations eliminate the “treating source rule,” which

required deference to treating source opinion evidence. The Commissioner will no

longer give deference or any specific evidentiary weight to any medical opinions,

including those from the claimant’s own medical sources. See 20 C.F.R.

§ 404.1520c(a).

The revised regulations became effective on March 27, 2017 and are applicable

to claims filed on or after that date. See id., § 404.1520c. They provide that the

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Commissioner “will not defer or give any specific evidentiary weight, including

controlling weight, to any medical opinion(s) . . ., including those from your medical

sources.” Id., § 404.1520c(a). Instead, the Commissioner will consider each medical

opinion using five factors: (1) supportability; (2) consistency; (3) relationship with the

claimant (including length of the treatment relationship, frequency of examinations,

purpose of the treatment relationship, extent of the treatment relationship and

examining relationship); (4) specialization, and (5) other factors tending to support or

contradict a medical opinion. Id., §§ 404.1520c(a), (c)(1)–(5). The most important

factors for evaluating the persuasiveness of medical opinions are supportability and

consistency. Id., §§ 404.1520c(a), 404.1520c(b)(2). The ALJ must articulate in his

decision how “[he] find[s] all of the medical opinions … in [the] case record.” Id.,

§ 404.1520(b). The ALJ is only required, however, to explain how he considered the

supportability and consistency factors; he may, but is not required to, explain how he

considered the other three factors. Id., § 404.1520c(b)(2).

The Commissioner argues that Ms. Tumlin fails to address whether the ALJ’s

findings can be upheld under the new “supportability and consistency” principles.12

But Ms. Tumlin’s objections to the R&R do not “acknowledge” (Doc. 34 at 3) the new

regulations because they are not directly relevant to her argument. Ms. Tumlin

explains her argument as follows:

12 The ALJ decision itself does not reference the new analytical framework and, from

its terminology, appears to apply the old framework by according specific “weight” to

medical opinions in the record.

18

The RFC and hypothetical questions to the VE did not

properly reflect Plaintiff’s mental impairments given that

Ms. Pepe, ARNP Belot, and NP Rivera Torres reported dire

symptoms from her mental impairments and Dr. Hosick

opined as to very extreme, extreme, and marked

limitations in her abilities to perform basic work functions.

(Doc. 33 at 1 (quoting Doc. 28 at 10).) This argument does not invoke the standard to

be applied by the Commission to medical opinion evidence, nor does it attempt to

apply the treating physician rule. Instead, Ms. Tumlin simply argues that the ALJ’s

findings are not supported by substantial evidence because Dr. Hosick’s assessment

and medical opinion are consistent, not inconsistent as the ALJ found, with the other

medical evidence in the record and support her reported symptoms, which, if properly

taken into consideration, would result in an RFC with more severe limitations than

the “moderate” limitations finding of the ALJ.

II. THE ALJ’S SUBSTANTIAL EVIDENCE FINDINGS

The issue raised by Ms. Tumlin before this Court is whether the ALJ’s

reasons for giving Dr. Hosick’s Assessment “little weight”—that the

conclusions in her Assessment regarding Ms. Tumlin’s mental functioning

were “vastly contrasted to” the “relatively normal mental status examination

findings throughout the record” and/or the “overwhelming normal psychiatric

findings” in Ms. Tumlin’s medical records—is supported by substantial

evidence. As discussed below, the Court finds that it is not, and therefore that

the ALJ’s decision must be reversed for further development of the record.

19

A. “Normal Psychiatric Evaluations”

The ALJ makes multiple references to “normal psychiatric evaluations” in

Ms. Tumlin’s medical records. The ALJ cites two medical records in this regard.

The first is a record from Ms. Tumlin’s primary care physician in Georgia.

According to this record, Ms. Tumlin saw her doctor for an upper respiratory

infection, and that doctor observed that her mental status appeared normal during

the visit. (Doc. 19-8 at 1–2 (Ex. 1F/2.) The physician visit in question occurred before

the alleged November 24, 2016 onset date. More importantly, the ALJ’s repeated

statement that this medical report shows that Ms. Tumlin “was seen with normal

psychiatric findings” (e.g. Doc. 19-2 at 26; id. at 28( twice); id. at 30 (twice)) is simply

wrong. This was not a psychiatric evaluation of a mental health professional and

therefore does not contain “psychiatric findings” of any kind. In fact, the portion of

the medical record that the ALJ references is a “review of systems” by a primary care

physician rather than a mental health specialist’s mental health review; at most, it

amounts to another mental status report (discussed in the next section).13

The second citation for “normal psychiatric findings” the ALJ provides is to a

medical record from November 28, 2017. Nurse Practitioner Belot observed that

13 During her first psychiatric evaluation in Florida, Ms. Tumlin reported she had a

history of trauma and that she received out-patient mental health therapy from

January 2017 to May 2017 while living in Georgia. (Doc. 19-8 at 58-59 (4F/17-18).)

Nothing about the medical report from Ms. Tumlin’s primary care physician in

Georgia contradicts this history or otherwise supports a finding that Ms. Tumlin had

“normal psychiatric evaluations” while she lived in Georgia. Again, the office visit to

her primary care physician was to treat an upper respiratory infection.

20

Ms. Tumlin presented as cooperative, polite, pleasant and calm at that evaluation,

and that her mental status at the time appeared good. (Doc. 19-8 at 55–56 (Ex.

4F/14–15).). The ALJ cites this mental status evaluation as a report of “entirely

normal psychiatric findings.” (Doc. 19-2 at 28.) The same medical record, however,

also reported that Ms. Tumlin was being treated for depression, anxiety, racing

thoughts, feeling of hopelessness; that she was physically abused in past marriages,

that she had mental health problems in multiples areas (Depression: sleep, energy

and concentration; Mania: irritability, need less sleep; elevated mood and speedy

thoughts; Generalized Anxiety: excess worry, restless/edgy and easily fatigued;

PTSD: experienced/witness event and avoidance behavior; Specific Phobias: crowds

and claustrophobia). In other words, in no way can the mental status evaluation from

the report in question be read as a report of “entirely normal psychiatric findings.”

To the contrary, Nurse Practitioner Belot diagnosed Ms. Tumlin in the report with

an “unspecified mood disorder” and prescribed a treatment plan that included the

prescription drugs Wellbutrin, Lamictal, and Vistatil.

B. “NORMAL MENTAL STATUS EXAMINATIONS”

The primary evidence cited by the ALJ for his finding that Dr. Hosick’s

Assessment was inconsistent with Ms. Tumlin’s medical records are a few “mental

status examinations” in those records that purportedly show Ms. Tumlin’s mental

state to be “normal.” (See Doc. 19-2 at 28 (citing Ex. 4F/14, 15 ).) For instance,

referring to the notes of the treating psychiatric nurse, the ALJ states that “the

claimant was reported with mood that is entirely normal with no signs of depression

21

or mood elevation. Her affect was observed congruent with mood and intact

associations, logical thinking, appropriate thought, intact cognitive functioning, an

intact fund of knowledge.” (Doc. 19-2 at 28.)14 In recommending that the Court

uphold the ALJ’s RFC finding, the R&R cites to the ALJ’s reliance on the mental

status examinations,15 and then tersely concludes that “it is not the Court’s job to

reweigh the evidence or decide facts anew.” (Doc. 32 at 9.) That is indeed true but,

as will be explained, this Court is not reweighing the record evidence by examining

that evidence to discern if the ALJ inaccurately characterizes the evidence on which

it relies for its RFC finding.

1. CHERRY-PICKING

An “ALJ is obligated to consider all relevant medical evidence and may not

cherry-pick facts to support a finding of non-disability while ignoring evidence that

points to a disability finding.” Dicks v. Colvin, No. 3:15-cv-934, 2016 WL 4927637, at

*4 (M.D. Fla. Sept. 16, 2016) (citation omitted); see, e.g., Bates v. Colvin, 736 F.3d

14 See also Doc. 19-2 at 29 (“The claimant was observed on mental status examination

to be alert and oriented, cooperative, well-related, mood sad with congruent affect,

mood (normal) anxious, and logical thought.”); id. (“the claimant was observed

comfortable speaking and adequate social communication . . . alert, oriented, calm,

cooperative, forthcoming, organized thinking, casually groomed, relaxed, normal

speech, coherent, entirely normal mood with no signs of depression or mood elevation,

appropriate affect, congruent mood, and no signs of anxiety”).

15 Ms. Tumlin asserts that the Magistrate Judge “does not address” the issue of

whether substantial evidence supported the RFC.” (Doc. 33 at 2.) That is not true,

although it is accurate to the extent that the R&R’s discussion is fairly conclusory

and consists of only a few sentences finding that the mental status examinations

constituted substantial evidence for the ALJ’s RFC.

22

1093, 1099 (7th Cir. 2013) (“while an ALJ need not mention every piece of evidence

in [his] opinion, [he] cannot ignore a line of evidence that suggests a disability”). In

such instances, like here, the Court cannot properly find whether substantial

evidence supports the ALJ’s decision. See McCruter v. Bowen, 791 F.2d 1544, 1548

(11th Cir. 1986) (“It is not enough to discover a piece of evidence which supports that

decision, but to disregard other contrary evidence. The review must take into account

and evaluate the record as a whole.”).

Indeed, an “ALJ has the obligation to consider all relevant medical evidence

and cannot simply cherry-pick facts that support a finding of non-disability while

ignoring evidence that points to a disability finding.” Denton v. Astrue, 596 F.3d 419

(7th Cir. 2010). “Only then can we be sure that the final determination reflects the

ALJ’s assessment of all of the evidence in the record.” Baldwin v. Berryhill,

746 F. App’x 580, 583 (7th Cir. 2018) (reversing ALJ’s determination that claimant

was not disabled and stating: “This record, unfortunately, reveals that the ALJ

cherry-picked the evidence in determining that Baldwin’s condition improved after

May 15, 2014.”).

“‘Cherry picking’ can indicate a serious misreading of evidence, failure to

comply with the requirement that all evidence be taken into account, or both.”

Younes v. Colvin, No. 1:14-cv-170, 2015 WL 1524417, at *8 (N.D.N.Y. 2015). Here it

is both. The ALJ does not comply with the requirement that all evidence be taken

into account because he merely cites a few positive mental status examinations

without giving any indication that he considered the numerous other mental status

23

examinations, diagnoses, and documented symptoms in the record that showed

severe mental health issues. The ALJ is not required to specifically refer to every

piece of evidence in his decision. See Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th

Cir. 2005). The ALJ is required, however, to consider all the presented evidence in

making his findings and the ultimate disability determination, and a reviewing court

should have some indication in the decision that he did so. See Meek v. Astrue, No.

3:08-cv-317, 2008 WL 4328227, at *1 (M.D. Fla. Sept. 17, 2008) (“Although an ALJ

need not discuss all of the evidence in the record, he many not ignore evidence that

does not support his decision. . . . Rather, the judge must explain why significant

probative evidence has been rejected.”); see also Santi v. Comm’r of the Soc. Sec.

Admin., No. 6:18-cv-1574, 2020 WL 1527853, at * 6 (M.D. Fla. Mar. 31, 2020). This

is especially important because while the Court may not reweigh the evidence, it

“must view the record 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).

What is more, the ALJ even misreads what ostensibly “normal” mental status

examinations that he cherry-picked to justify his RFC determination. That is, the

very same records that show so-called normal mental status examinations also show

that the treating provider found Ms. Tumlin to have serious mental disorders and

significant symptoms of those mental disorders. For instance, the ALJ takes note of

Ms. Tumlin’s visit with the nurse practitioner on November 21, 2018, because it

occurred shortly after Dr. Hosick prepared her Assessment and opinion. (Doc. 19-2

at 31 (citing Ex. 12F/3).) Yet, despite noting that Ms. Tumlin was alert, oriented,

24

calm, and cooperative, with normal mood and no signs of depression, the very same

page of the November 21, 2018 medical report has a heading “Mental Status Exam”

under which there are listed over ninety symptoms Ms. Tumlin was experiencing,

including specific references to agoraphobia; PTSD; “experienced/witnessed event’;

“persistent re-experiencing’; dreams/flashbacks; fear of meeting unfamiliar people’

and phobias of crowds, animals, insects, and the natural environment, as follows:

Center for Progress and Exceilence

Psychiatric Clinical Note :

Location: Labelle Office

Start Time:1:45 pm

End Time; 2:15 pm □

Total Time:

Mentai Status Exam

Depression/SIGECAPS Mania/Giddiness Psychosis

Low mood for >2 weeks Grandiose Hallucinations illusions :

Sleep Increased activity: goal directed/high risk Delusions

Interest Decreased judgement Self-Reference:

GuiltWorthlessness Distractible Messages from media □

Energy Irritability Thought Blocking

Concentration Need Less Sleep Disorganization: :

Appetite/weight: Elevated mood Ideas of reference :

Psychomotor slowing Speedy talking :

Suicide: Speedy thoughts :

Panic Attacks Generalized Anxiety Social Phobia

Trembling Excess worry Performance Situations :

Palpations Restless/edgy Fear of eating in public 443

25

Nausea/chills Easily fatigued Fear of meeting unfamitar □□

people :

Choking/chest pain Muscle tension Specific Phobias :

Sweating Decreased sleep Heights

Fear Decreased concentration Crowds :

Anticipatery anxiety Startle Animals

Avoidance Borderline Personality Animals

Agoraphobia Feer abandonment/rejection INSects :

Antisocial Personality Unstable relationships Claustrophobia

Forensic history: Chronic emptiness Natural Environment :

Aggressiveness/violence Low/decreased selfesteeam Obsessive Compulsive Disorder

Lack of empathy/remorse Intense anger outburst Intrusive/persistent thoughts :

Lack of concern for safety Self-damaging behavior Recognized as

excessive/irrational □

Childhood conduct disarder Labile mood and impulsivity Repetitive behaviors:

PTSD Body Dysmorphic Disorder ADHD

Experienced/witnessed Excess concern with appearance/certain part of Attention problems :

event body

Persistent re-experiencing Avoidance behavior Concentration/Focus problems :

Dreams/flashbacks Fating Disorders Schooliwork performance issues

Avoidance behavior Binging/purging/restriction/amenorrhea

Hyper-arousal: Perception of body image or weight :

(Doc. 19-11 at 7-8 (Ex. 13F/6—7).) It is unclear how, or even if, the ALJ reconciled

“It]here are no signs of anxiety” with “panic attacks,” “excess worry,” or “avoidance

behavior.” (Id. at 8 (Ex. 13F/7).)

In another example, the ALJ cites a medical note stating that Ms. Tumlin

reported “using a punching bag to help with instances of irritability” (Doc. 19-2 at

29), and another stating that Ms. Tumlin “reported struggling with lack of motivation

(id. (citing Ex. 4F/17)). By only citing to the relatively mild symptoms of irritability

and lack of motivation stated within those reports, the ALJ paints an inaccurate

picture of Ms. Tumlin’s symptoms. The same medical record that referred to

Ms. Tumlin’s reported lack of motivation also states that her “chief complaint[s]”

included “hypersensitivity, low mood and low energy, difficulty falling and staying

asleep, difficulty with depressive symptoms and insomnia since childhood.” (Id. at 58

(Ex. 4F/17).) Additionally, it states that Ms. Tumlin reported “a history of diagnosed

26

anxiety and depression dating back several years”; a history of trauma, including

rape and physical and emotional abuse by her first husband; and that she “has no

memory prior to the age of twelve.” (Id. at 59 (Ex. 4F/18).)

The ALJ makes no attempt to reconcile the conclusions he draws from one or

two notations in a report indicating Ms. Tumlin presented with normal mood and

affect with the immediately preceding listing of over ninety symptoms. By focusing

on positive mental status examinations “without reconciling th[ose] positive findings

. . . with [Ms. Tumlin’s] diagnoses, ongoing treatments, and reports of continuing,

possibly deteriorating symptoms[,] . . . the ALJ appears to have ignored entirely

evidence that contradicts his RFC analysis without adequate explanation.” Randi R.

W. v. Comm’r of Soc. Sec., 421 F. Supp. 3d 616, 623 (N.D. Ind. 2019). Put simply, on

this record, while it is clear what favorable evidence the ALJ relied on in formulating

the RFC, the Court is otherwise left guessing as to how the ALJ considered the

unfavorable evidence of record beyond the sparse citation to minimal treatment notes

like “lack of motivation.” It may very well be that the ALJ’s RFC ultimately

accounted for the unfavorable evidence but, the Court cannot make that assumption

as it would require the Court to impermissibly weigh that evidence.

2. FALSE INCONSISTENCY FINDINGS

The ALJ’s repeated emphasis on the normal mental status examinations

without adequate explanation of potentially competing evidence is also concerning

because normal mental status examinations do not equate to a lack of disability. The

mental status examinations in Ms. Tumlin’s medical records appear to be little more

27

than the treating provider’s observations in the moment of Ms. Tumlin’s mental

state.16 One can both appear normal in mood and affect and still suffer from

debilitating mental health issues such as agoraphobia, depression, bipolar disorder,

and PTSD. With no further explanation, the ALJ’s emphasis on the mental status

examinations implies a misunderstanding that normal mental status examinations

preclude a finding of disability.

The ALJ used the normal mental status evaluations as his rationale for

discounting Dr. Hosick’s Assessment and opinion (as well as for discounting

Ms. Tumlin’s testimony about her limitations and symptoms17). Inconsistencies, if

16 The Merck Manual defines a mental status examination as “an assessment of

current mental capacity through evaluation of general appearance, behavior, any

unusual or bizarre beliefs and perceptions (e.g. delusions, hallucinations), mood, and

all aspects of cognition (e.g. attention, orientation, memory),” and describes screening

tools for the assessment such as the Montreal Cognitive Assessment and the Mini-

Mental State Examination.” https://www.merckmanuals.com/

professional/neurologic-disorders/neurologic-examination/how-to-assess-mental-

status. The mental status examinations here do not appear to be full-blown

assessments like that described in the Merck Manual as there is no indication that

any formal testing or screening tool was used.

17 Although Ms. Tumlin does not mention the ALJ’s treatment of her own testimony

as a basis for reversal, the Court is troubled by the ALJ’s failure to mention let alone

discuss Ms. Tumlin’s testimony regarding her symptoms of agoraphobia and panic

attacks, particularly her testimony about not having gone out of the house in the past

two years without someone with her, even then only going out for doctor’s

appointments and at night for grocery shopping. When a claimant seeks to establish

disability based on subjective testimony, she must satisfy two parts of a three-part

test, showing: “(1) evidence of an underlying medical condition; and (2) either (a)

objective medical evidence confirming the severity of the alleged [symptom]; or (b)

that the objectively determined medical condition can reasonably be expected to give

rise to the claimed” symptom. Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir.

2002) (per curiam); see also 20 C.F.R. § 404.1529(a). Once the claimant provides such

testimony, the “ALJ must then articulate adequate reasoning for discrediting such

28

they do exist, typically would suffice as substantial evidence supporting an ALJ’s

failure to credit a medical opinion in crafting a claimant’s RFC.18 But here, the

inconsistencies pointed out by the ALJ are not inconsistencies at all. Relatively

normal mental status examinations occurred during therapy sessions when the

reporting nurse practitioner or therapist also reported serious mental health issues

subjective testimony.” Alvarez v. Comm’r, No. 20-11721, 2021 WL 777143, at *3 (11th

Cir. Mar. 1, 2021) (citing Wilson, 284 F.3d at 1225)) (emphasis added). While the

ALJ’s “credibility determination does not need to cite particular phrases or

formulations, [ ] it cannot merely be a broad rejection which is not enough to enable

[the court] to conclude that [the ALJ] considered [the plaintiff’s] medical condition as

a whole.” Dyer, 395 F.3d at 1210 (quotation and citation omitted). The ALJ found

that Ms. Tumlin’s “medically determinable impairments could reasonably be

expected to cause [her] alleged symptoms; however,” Ms. Tumlin’s “statements

concerning the intensity, persistence and limiting effects of these symptoms” were

not consistent with the “medical evidence and other evidence in the record.” (Doc. 19-

2 at 30.) But the ALJ relied for this finding on the mental status examinations, which

were not inconsistent with Ms. Tumlin’s testimony for the reasons discussed. And

the ALJ’s reliance on Ms. Tumlin’s reports in the medical records of “looking for a job,

performing hobbies such as crocheting, writing, and furniture refining . . . doing

household chores of cooking, cleaning, doing laundry and shopping” (id. at 30) are not

inconsistent with her testimony and Dr. Hosick’s medical opinion that Ms. Tumlin’s

mental health diagnoses severely impair her capacity to respond emotionally in an

appropriate manner or engage with others in a social setting. Even more, Dr. Hosick

flat out concluded that, along with her other diagnoses, Ms. Tumlin’s

panic/agoraphobia disorders yield her ability to function in a social setting. (Doc. 19-

10 at 32 (Ex. 11F/3).) See Lewis v. Callahan, 125 F.3d 1436, 1441 (11th Cir. 1997)

(“Nor do we believe that participation in everyday activities of short duration, such

as housework or fishing, disqualifies a claimant from disability.”).

18 See Martinez v. Acting Comm’r of Soc. Sec., 660 F. App’x 787, 794 (11th Cir. 2016)

(ALJ gave sufficient reasons for assigning little weight to opinions of physician

because it was inconsistent with overall record); Hernandez v. Comm’r of Soc. Sec.,

523 F. App’x 655, 657 (11th Cir. 2013) (ALJ provided good cause for affording little

weight to opinions of social security disability claimant’s treating physicians, which

were inconsistent with doctors’ own treatment notes and with objective medical

evidence).

29

and the need for continued care. If those normal mental status examinations meant,

as the ALJ seems to suggest they meant, that Ms. Tumlin had no or few limitations

from her mental impairments, then those medical reports themselves would be

internally inconsistent. At the very least, the ALJ’s emphasis on normal mental

status examinations exposes a gap in his logic from the evidence of the record to his

cursory conclusions related to Ms. Tumlin’s RFC, calling into question his RFC

finding. See, e.g., Ernestine C. v. Comm’r, No. 1:18-cv-2979, 2019 WL 5410066, at

*11 (N.D. Ga. Aug. 30, 2019) (that a claimant had “some normal findings ‘over a long

period of treatment’ . . . do[es] not demonstrate that a doctor’s opinions about the

patient’s limitations are suspect”).

The mere fact that Ms. Tumlin was observed with normal affect and mood

during some of her appointments does not render Dr. Hosick’s Assessment and

opinion any less relevant and probative for the ALJ’s consideration of Ms. Tumlin’s

RFC. To a large degree, the Assessment relates to Ms. Tumlin’s ability to function

socially, and, other than noting Ms. Tumlin was “cooperative” during the

examinations, none of the mental status examinations cited by the ALJ specifically

address Ms. Tumlin’s capacity for socialization.19 To state it in the negative, the

19 The R&R states that the ALJ incorporated Dr. Hosick’s opinion regarding

Ms. Tumlin’s limitations in social interactions into the RFC because it limits

Ms. Tumlin “to no more than occasional interaction with supervisors and the public.”

(Doc. 32 at 9.) But Dr. Hosick opines that Ms. Tumlin’s mental disorders “severely

impair her capacity to respond appropriately emotionally and cause significant

cognitive impairment,” and that “[h]er panic/agoraphobia prevents her from working

in a social setting.” (Doc. 19-10 at 32 (Ex. 11F/3).) A limitation on social interactions

to “no more than occasional” occurrences accounts for a “moderate,” not “severe”

30

mental status examinations do not constitute substantial evidence for thee ALJ’s

rejection of Dr. Hosick’s opinion in formulating the RFC. See Wheat v. Berryhill, No.

17CV2496-MMA (RNB), 2018 WL 4328219, at *2 (S.D. Cal. Sept. 11, 2018)

(determining that ALJ erred in relying on mental status examinations which did not

undermine medical opinion and were not inconsistent with “consistently reported

symptoms of severe depression, anxiety, agoraphobia, and obsessive compulsive

disorder”); see also West v. Colvin, 8:14-CV-2659, 2016 WL 7508830, at *3 (M.D. Fla.

Mar. 23, 2016) (reversing ALJ’s determination that claimant was not mentally

disabled and noting, “The plaintiff argues meritoriously that substantial evidence

does not support the law judge’s finding that Dr. DeVine’s records show an

improvement in his mental condition. . . . . In fact, the plaintiff correctly asserts that

Dr. DeVine’s treatment notes show a deterioration of the plaintiff’s mental

condition.”)).

impairment in the area. See, e.g., Washington v. Soc. Sec. Admin., Com’r, 503 F.

App’x 881, 883 (11th Cir. 2013) (finding ALJ’s hypothetical took account of the

plaintiff’s moderate limitations in social functioning by limiting the plaintiff to jobs

that involved only occasional interaction with the general public and co-workers).

Moreover, such a limitation is inconsistent with Dr. Hosick’s opinion that

Ms. Tumlin’s panic/agoraphobia prevents her from having any social interactions at

all. (Doc. 19-10 at 32 (Ex. 11F/3). And had the ALJ imposed a greater than moderate

limitation in social functioning on Ms. Tumlin’s RFC, the result would have been

different. (See Doc. 19-2 at 71 (vocational expert (“VE”) testimony that, if

Ms. Tumlin’s RFC were further limited by the requirement that, “[o]n a sustained

basis, the individual would be unable to respond appropriately to usual work

situations or to deal with changes in a routine work setting,” there would be no jobs

in the economy).)

31

3. EPISODIC NATURE OF PTSD AND EFFECT OF HIGHLY

STRUCTURED AND SUPPORTIVE THERAPEUTIC

ENVIRONMENT

There is still an additional reason why the normal mental status examinations

do not provide substantial evidence for the ALJ’s RFC determination. The Eleventh

Circuit has cautioned that “an ALJ’s reliance solely on face-to-face observations made

in highly structured and supportive environments may not constitute substantial

evidence when episodic conditions like PTSD are involved.” Ross v. Commissioner,

794 F. App’x 858, 864 (11th Cir. 2019). In Perez v. Commissioner, 625 F. App’x 408,

418 (11th Cir. 2015), the Eleventh Circuit found that a treating physician’s notes that

the claimant “was cooperative, had good eye contact, and had no delusions or

compulsions” did not contradict the physician’s ultimate conclusion concerning the

claimant’s inability to function in a work setting. And, in Mace v. Commissioner, 605

F. App’x 837, 842 (11th Cir. 2015), the Commissioner’s denial of benefits was

remanded for further proceedings because the ALJ had failed to consider the episodic

nature of the claimant’s bipolar disorder and depression, or the effect of controlled

environments on the claimant’s ability to function. As the Seventh Circuit has

explained, “[a] person who has a chronic disease . . . and is under continuous

treatment for it with heavy drugs, is likely to have better days and worse days[.] . . .

Suppose that half the time she is well enough that she could work, and half the time

32

she is not. Then she could not hold down a full-time job.” Bauer v. Astrue, 532 F.3d

606, 609 (7th Cir. 2008).20

The record shows that Ms. Tumlin has been diagnosed with bipolar disorder,

a disorder that is characterized by an “episodic nature” of “better days and worse

days,” along with symptom-free intervals. Mace, 605 F. App’x at 843. Ms. Tumlin

also has been diagnosed with PTSD, which can cause employment difficulties because

of its episodic and unpredictable nature. In Ross, the court upheld the ALJ’s finding

that the plaintiff was not disabled despite his PTSD, but did so only because the

20 See also Ernestine C., 2019 WL 5410066, at *10-11 (holding that a doctor’s opinion

concerning the effect of a claimant’s mental health disorder on her ability to “sustain

gainful employment” was not inconsistent with mental status examinations showing

the plaintiff “was alert and oriented and had good eye contact, normal speech,” etc.);

Cook v. Berryhill, No. 3:18cv-177, 2019 WL 1376516, at *5 (M.D. Fla. Mar. 27, 2019)

(ALJ’s finding that treatment notes were inconsistent with physician’s opinion was

not supported by substantial evidence where the ALJ mostly cited those portions of

the treatment notes that showed the plaintiff doing well, when, a review of the record,

showed that the plaintiff’s condition fluctuated significantly, such that some days the

plaintiff was doing better than other days); Hill v. Berryhill, 17-14262-CIV, 2018 WL

6048006, at *9 (S.D. Fla. Nov. 19, 2018) (stating that, rather than focus solely on the

apparent success of therapy in easing a claimant’s psychosis, the ALJ must consider

whether “[a] mental health patient who is stable with therapy and support may

decompensate in a more demanding setting such as in the workplace”); Cannington

v. Barnhill, No. 5:16-cv-208, 2017 WL 4404569, at *8 (N.D. Fla. Sept. 29, 2017)

(explaining that “the point made in Mace was that the ALJ needs to consider the

mercurial, unpredictable nature of an impairment such as [ ] its possible effects on

the claimant’s ability to work,” and that, “[s]een in this light, the fact that [a] [p]aintiff

may have appeared cogent and unaffected during his medical interviews, for instance,

carries less weight than normal”); Limle v. Berryhill, No. 8:17-cv-273, 2017 WL

6756606, at *6 (M.D. Fla. Dec. 12, 2017), report and recommendation adopted sub

nom. Limle v. Comm’r, 2017 WL 6610786 (M.D. Fla. Dec. 27, 2017) (holding that,

where the ALJ overemphasized the plaintiff’s good days without regard for her bad

days, the ALJ’s consideration of the plaintiff’s mental impairments in fashioning her

RFC is not supported by substantial evidence).

33

mental status examinations on which the ALJ relied “very clearly took into account

more than the simple fact that [the plaintiff] was functioning normally during the

session.” 794 F. App’x at 864 (emphasis added). Instead, the medical notes, as well

as the plaintiff’s own self-reports, showed that the plaintiff “was able to function

adequately even in activities outside of controlled environments, including stressful

environments like court proceedings and late night visits from child protective service

agents.” Id. at 864 n.8.

Here, there is no similar assessment of Ms. Tumlin’s ability to function outside

of her therapist’s office in the record. The ALJ cites to (1) a medical report in

November 2017 which indicates that Ms. Tumlin “reported enjoying woodworking,

crocheting, and writing poetry and short stories”; (2) a medical report in December

2017, which indicates that Ms. Tumlin “reported doing well on medication’; and (3) a

medical report in January 2018, which indicates that Ms. Tumlin “reported applying

for two jobs.” (Doc. 19-2 at 29-30 (citing Ex. 4F/18; Ex. 4F/9 and Ex. 4F/7).) Without

a more robust discussion from the ALJ, however, these self-reported activities cannot

constitute substantial evidence for an “occasional interaction” limitation, as stated in

the RFC, in light of Dr. Hosick’s medical opinion to the contrary. See, e.g., Booker v.

Comm’r, No. 6:16-CV-2247-ORL-TBS, 2017 WL 6380422, at *6 (M.D. Fla. Dec. 14,

2017) (rejecting ALJ’s finding of “inconsistency between ‘claimant’s self-reported

activities of daily living such as cleaning or providing care for her grandmother’ and

disabling mental limitations due to PTSD and MDD”).

34

Simply stated, the record is devoid of substantial support for the ALJ’s

conclusion that the cherry-picked and misread mental status evaluations are

inconsistent with Dr. Hosick’s Assessment. Neither the mental status evaluations

nor Ms. Tumlin’s own self-reports contain information that shows Ms. Tumlin is able

to function socially or in a work environment at a higher level than reported by

Dr. Hosick. That Ms. Tumlin appeared mentally stable during a few of her monthly

thirty-minute sessions with the psychiatric nurse is not evidence to conclude that she

could perform equally and consistently each day during a 40-hour work week. At a

minimum, it certainly is not “substantial” evidence. In sum, the record needs further

development to discern whether the ALJ considered other evidence, which he deemed

substantial, besides the above-discussed treatment notes in formulating Ms. Tumlin’s

RFC.

C. STATE PSYCHOLOGICAL ASSESSMENT

Finally, the ALJ gave “great weight” to the opinion of the state agency

psychologist at the reconsideration level on July 20, 2018. (Doc. 19-2 at 31.) In

assessing Ms. Tumlin’s mental health impairments, the state psychologist never

examined Ms. Tumlin directly. Instead, his opinion was based on Ms. Tumlin’s own

statements and medical treatment notes. (Doc. 19-3 at 14–20 (Ex. 3A/1–7).) The ALJ

found the state psychologist’s opinion “well supported by the [ ] medically acceptable

clinical findings and laboratory techniques” (Doc. 19-2 at 31), while simultaneously

giving “little weight” to Dr. Hosick’s Assessment on October 4, 2018 (id. at 30)—some

two months after the state psychologist’s opinion.

35

Dr. Hosick’s Assessment finding mostly marked, extreme, or very extreme

limits is in contrast to the state assessment, which found mostly moderate

limitations. But it appears from the state assessment itself that the state

psychologist understood that his findings were limited by the absence of information

in the record. The state psychologist actually opines that a consultative examination

from one of Ms. Tumlin’s medical providers was appropriate because “additional

evidence needed is not contained in the records of [Ms. Tumlin’s] medical sources.”

(Doc. 19-3 at 19 (Ex. 3A/6.)21 Dr. Hosick provided that assessment on October 4,

21 The state assessment answers “yes” to the question “[i]s a [consultative

examination] required?” (Doc. 19-3 at 19 DA/6.) It explains one was needed because

“[t]he additional evidence needed is not contained in the records of the individual’s

medical sources.” Id. The state assessment then answers “yes” to the question “was

the individual’s medical source[s] contacted to perform the [consultative exam]?” (Id.)

While the state assessment represents that Ms. Tumlin’s medical source was

contacted to perform the consultative examination, it also states that “[t]he individual

has no medical source to perform the CE.” (Id.) The initial state assessment said

something similar: “[t]he individual’s medical source(s) is unqualified to perform the

CE(s).” (Doc. 19-3 at 5 (Ex. 1A/4).) There is a dispute in the parties’ briefing as to

whether the ALJ may have discounted Dr. Hosick’s Assessment because he believed

she was unqualified. (See Doc. 28 at 12.) The ALJ’s decision does not give that as

the reason for giving little weight to Dr. Hosick’s opinions, and the Court must rely

on the written decision in determining whether the ruling was in error. But the Court

can understand why Ms. Tumlin may have thought that was a possibility, given the

statements in the state assessments. As best the Court can tell, the state

assessments’ comments may refer to the fact that Dr. Hosick, as a Licensed Mental

Health Counselor, would not have qualified under the old regulations as an

“acceptable medical source.” See Farnsworth v. Soc. Sec. Admin., 636 F. App’x 776,

783–84 (11th Cir. 2016) (citing SSR 06–03p, 2006 WL 2329939, at *1–2 (Aug. 9, 2006)

(explaining that “acceptable medical sources” do not include Licensed Mental Health

Counselors); see also 20 C.F.R. § 404.1527(a)(1) (defining a “medical opinion” as a

statement from an “acceptable medical source[ ],” and then describing procedure for

determining how much weight will be given to those medical opinions). In fact,

however, since the new regulations took effect, it appears Dr. Hosick would qualify to

36

2018.22 Yet the ALJ did not ask the state psychologist to revisit his assessment in

light of Dr. Hosick’s subsequent Assessment. Had the ALJ ordered its own

consultative examination resulting in an opinion that conflicted with Dr. Hosick’s

findings, then substantial evidence might have supported the ALJ’s RFC

determination as to Ms. Tumlin’s mental impairments. This is crucial in light of the

fact that both the state psychologist and Dr. Hosick found that Ms. Tumlin had severe

mental impairments; they only differed in their assessment as to the limitations of

those impairments. (Compare Doc. 19-3 at 26 (Ex. 3A/13) with Doc. 19-10 at 32 (Ex.

11F/3).) The ALJ gave great weight to the opinion of the state psychologist when that

psychologist gave her opinion based on medical evidence in the record only through

July 9, 2018. (Doc. 19-3 at 16 (Ex. 3A/6).) The ALJ did so despite the state

psychologist explaining that a consultative examination from one of Ms. Tumlin’s

medical providers was appropriate because “additional evidence needed is not

contained in the records of [Ms. Tumlin’s] medical sources.” (Doc. 19-3 at 19.) The

Court finds this most troubling. The state assessment itself reports Ms. Tumlin’s

symptoms as worsening in June 2018 (id. at 21), and indicates that there was no

perform a consultative examination and to provide a medical opinion as part of that

assessment. See infra n. 22.

22 Dr. Hosick, as a licensed mental health counselor, can provide a medical opinion

under the current regulations, even though she is not a licensed psychologist or

medical doctor. See 20 C.F.R. § 404.1513(2) (defining a “medical opinion” as a

statement from “a[ny] medical source”); id. § 404.1520c (setting forth new rules for

how all medical opinions are to be evaluated).

37

medical opinion from any medical source for the assessment to take into consideration

(id. at 26). Dr. Hosick’s medical opinion provides the very thing that the state

assessment notes is absent.23

It is well settled that an ALJ cannot rely on a file-review opinion if post-review

developments reflect a significant worsening of the claimant's condition because such

an opinion does not amount to substantial evidence. Stacey S. v. Berryhill, C.A.,

No. 18-00284-JJM, 2019 WL 2511490, at *7 (D.R.I. June 18, 2019) (opinion is not

stale unless there is a “sustained (and material) worsening” of the claimant's

impairments); Virgen C. v. Berryhill, C.A., No. 16-480 WES, 2018 WL 4693954, at *3

(D.R.I. Sept. 30, 2018) (“[I]f a state-agency physician reviews only a partial record,

her ‘opinion cannot provide substantial evidence to support [an] ALJ’s residual

functional capacity assessment if later evidence supports the claimant’s

limitations.’”) (second alteration in original) (citation omitted). Here, the file-review

opinion itself recognizes the beginning of worsening symptoms and requests further

information. Again, the state assessment itself recognizes that its conclusions were

23 The R&R gets bogged down in a discussion of how much of Dr. Hosick’s Assessment

constitutes “medical opinion” evidence, 20 C.F.R. § 404.1513(a)(2)(ii), and how much

constitutes “other medical evidence,” id., § 404.1513(a)(3). (See Doc. 32 at 8.) The

Court agrees that likely only the last few comments at the end of Dr. Hosick’s

Assessment qualifies as “medical opinion.” But the remainder of the Assessment is

on the same footing as the state psychologist’s assessment, which mostly also falls

into the “other medical evidence” category, and there is no reason to think that the

distinction drawn in the R&R had anything to do with the ALJ’s decision to give the

state psychologist’s assessment greater weight than Dr. Hosick’s Assessment.

38

subject to change and would benefit from a consultative medical opinion and

assessment of a treating medical provider.

The failure of the ALJ to obtain a state consultative examination or else

recognize Dr. Hosick’s opinion as qualifying the state psychologist’s findings “would

not necessarily be fatal considering the ALJ had the records before him when making

his decision, if it was obvious the judge had considered all the evidence of record.”

Zellner v. Astrue, No. 308-cv-1205, 2010 WL 1258137, at *7–8 (M.D. Fla. Mar. 29,

2010). However, as discussed supra, the ALJ failed to demonstrate that he properly

considered all the evidence. See id. (reversing and remanding on this basis).

The ALJ took it upon himself to determine whether the findings of mostly

moderate limitations in the state psychological assessment should be reconsidered in

light of Dr. Hosick’s assessment. The ALJ states:

The opinions, supplied by a consultant with expert

knowledge of the SSA disability assessment program rules

and criteria, are well supported by the above-cited

medically acceptable clinical findings and laboratory

technique; are consistent with the medical evidence of

record, both before and after consultant review . . . .

(Doc. 19-2 at 31 (emphasis added).) Assuming the “consultant review” to which the

ALJ is referring is the state assessment in August 2018, the ALJ made his own

finding of the relevance to that assessment’s conclusions of medical evidence not part

of the record at the time the assessment took place. That finding is in error. See

Marbury v. Sullivan, 957 F.2d 837, 840 (11th Cir. 1992) (Johnson, J. concurring)

(stating that the ALJ “abuse[d] his discretion when he substitute[d] his own

39

uninformed medical evaluations for those of” the claimant’s doctor); Combs v.

Berryhill, 878 F.3d 642, 646 (8th Cir. 2017) (stating that, an ALJ “may not simply

draw his own inferences about plaintiff’s functional ability from medical reports”).

The Court notes that the ALJ had a duty to develop a full and fair record,

where, as here, the need for a consultative examination of Ms. Tumlin was readily

apparent for the ALJ to make an informed decision. See Holladay v. Bowen, 848 F.2d

1206, 1209–10 (11th Cir. 1988) (“it is reversible error for an ALJ not to order a

consultative examination when such an evaluation is necessary for him to make an

informed decision”). An ALJ may rely on a consultative examination when trying to

resolve “an inconsistency in the evidence or when the evidence as a whole is

insufficient to support a determination or decision.” 20 C.F.R. § 416.919a(b). But the

ALJ is not required to order such an examination “as long as the record contains

sufficient evidence for the administrative law judge to make an informed decision.”

Ingram v. Comm’r, 496 F.3d 1253, 1269 (11th Cir. 2007). Ultimately, “[i]n

determining whether it is necessary to remand a case for development of the record,

this Court considers ‘whether the record reveals evidentiary gaps which result in

unfairness or clear prejudice.’” Salazar v. Comm’r, 372 F. App’x 64, 67 (11th Cir.

2010) (quoting Brown v. Shalala, 44 F.3d 931, 935 (11th Cir. 1995)). Here, the Court

finds the ALJ should not have given the state assessment from August 2018 great

weight while discounting as entitled to little weight Dr. Hosick’s later assessment in

October 2018 without either ordering a consultative examination or asking the state

psychologist to revisit his August 2018 assessment to take into account Dr. Hosick’s

40

assessment and subsequent treatment notes not in the record at the time the state

assessment was prepared.

CONCLUSION

At bottom, Ms. Tumlin’s RFC is the province of the ALJ and the ALJ’s alone.

Yet that decision must be supported by substantial medical evidence. And it is the

ALJ’s duty to develop the record and acquire that medical evidence. For the foregoing

reasons, it is ORDERED:

1. The Report and Recommendation (Doc. 32) is REJECTED.

2. The decision of the Commissioner is REVERSED and REMANDED

pursuant to sentence four of 42 U.S.C. § 405(g).

3. On remand, the Commissioner is instructed to reassess the nature of

Plaintiffs mental health limitations, to reconsider the effect of Plaintiff's

impairments in combination on her ability to work, to make specific findings

regarding Plaintiffs alleged impairments of PTSD and agoraphobia, and to then

apply those findings in reassessing Ms. Tumlin’s residual functional capacity (RFC)

relating to her mental health conditions and physical limitations.

4, The Clerk is directed to ENTER JUDGMENT in favor of Plaintiff and

thereafter CLOSE the file.

ORDERED in Fort Myers, Florida, this 31st day of March 2021.

PAS bfbn Lh

JOHN L. BADALAMENTI

UNITED STATES DISTRICT JUDGE

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