Brown v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

TYRESHIA VONSHANTA

BROWN,

Plaintiff,

v. Case No. 6:20-cv-840-GJK

COMMISSIONER OF SOCIAL

SECURITY,

Defendant.

MEMORANDUM OF DECISION1

Tyreshia Brown (the “Claimant”), appeals a final decision of the

Commissioner of Social Security (the “Commissioner”), denying her claim for

Social Security Disability Benefits. Doc. Nos. 1, 31. Claimant filed her application

for benefits on October 16, 2018. R. 10. Claimant alleges a disability onset date

of June 30, 2016. R. 10. Claimant argues that the Administrative Law Judge (the

“ALJ”) erred in: 1) failing to properly consider all medical source opinions; 2)

finding ARNP Patricia Burgunder’s mental capacity source statement

unpersuasive; 3) failing to properly assess Claimant’s subjective complaints of

pain; and 4) failing to properly account for all of Claimant’s limitations in her

residual functional capacity (“RFC”). Doc. No. 31 at 14, 29, and 34. Upon

1 Magistrate Judge David A. Baker substituting for Magistrate Judge Gregory J. Kelly.

consideration of the parties’ arguments and the record, the final decision of the

Commissioner is REVERSED and REMANDED.

I. STANDARD OF REVIEW.

The Commissioner’s findings of fact are conclusive if supported by

substantial evidence. 42 U.S.C. § 405(g) (2010). Substantial evidence is more than a

scintilla–i.e., the evidence must do more than merely create a suspicion of the

existence of a fact and must include such relevant evidence as a reasonable person

would accept as adequate to support the conclusion. Foote v. Chater, 67 F.3d 1553,

1560 (11th Cir. 1995) (citing Walden v. Schweiker, 672 F.2d 835, 838 (11th Cir. 1982);

Richardson v. Perales, 402 U.S. 389, 401 (1971)). Where the Commissioner’s decision

is supported by substantial evidence, the District Court will affirm, even if the

reviewer would have reached a contrary result as finder of fact, and even if the

reviewer finds that the evidence preponderates against the Commissioner’s

decision. Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991); Barnes v.

Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991). The Court must view the evidence as

a whole, considering evidence that is favorable as well as unfavorable to the

decision. Foote, 67 F.3d at 1560. The District Court “‘may not decide the facts anew,

reweigh the evidence, or substitute [its] judgment for that of the [Commissioner].’”

Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir. 2004) (quoting Bloodsworth v.

Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983)).

II. ANALYSIS.

The ALJ found that Claimant had the following severe impairments: spine

disorder, obesity, affective disorder, and post-traumatic stress disorder (“PTSD”).

R. 12. The ALJ found that despite these impairments Claimant could perform

medium work except that Claimant:

Could perform work which requires up to 30 days to

learn the techniques, acquire the information, and

develop the facility for average performance in a specific

job situation. She could lift or carry 25 pounds

frequently, and 50 pounds occasionally (from very little,

up to 1/3 of an 8-hour workday). She could stand and/or

walk for a total of 6 hours and sit for a total of 6 hours

(with normal breaks) in an 8-hour workday. Due to

mild to moderate pain and medication side effects, she

should avoid hazards in the workplace such as

unprotected areas of moving machinery; heights; ramps;

ladders; scaffolding; and on the ground, unprotected

areas of holes and pits. She should be restricted to

occasional vibration. She could perform each of the

following postural activities frequently: balancing,

stopping, crouching, kneeling, and crawling; but not

[t]he climbing of ropes or scaffolds, and of ladders

exceeding 6 feet. She has non-exertional mental

limitations which frequently affect her ability to

concentrate upon complex or detailed tasks, but she

would remain capable of understanding, remembering,

and carrying out the job instructions defined earlier;

making work related judgments and decisions;

responding appropriately to supervision, co-workers

and work situations; and dealing with changes in a

routine work setting. She should avoid stressful

situation[s] and can only occasionally work with

coworkers in a team; work directly with the public; work

with supervisor or co-workers where interpersonal

interaction or discussion is require[d]; make decisions;

and use judgment.

R. 15-16.

On July 6, 2016, Dr. Jacques Minville, a psychiatrist, saw Claimant at

Behavioral Support Services, Inc. (“BSS”) and diagnosed her with PTSD, anxiety

disorder, and major depressive disorder.2 R. 331. Dr. Minville observed

Claimant had: tense posture, avoidant eye contact, anxious mood, racing thoughts

with “poverty of content,” and depressive thoughts. R. 328-29. He noted that

Claimant was cooperative, emotional, had crying spells, and was nervous. R. 330.

Thereafter, Claimant began treatment at BSS for her depression, PTSD, and

anxiety. R. 332, 336-41.

On October 20, 2016, Dr. Minville completed a “Certification for Health Care

Provider for FMLA Leave & Behavioral Health Provider Statement of Claim for

Disability Benefits.” R. 332-35. Dr. Minville noted a primary diagnosis of

generalized anxiety and a secondary diagnosis of major depressive disorder. R.

333. With respect to her cognitive function, Dr. Minville opined Claimant would

be able to apply focus and concentration for periods of 15-30 minutes. R. 333.

On June 27, 2017, Dr. Brenda White, also a provider at BSS, provided another

psychiatric evaluation for Claimant’s disability benefits. R. 395-397. Dr. White

2 Claimant’s PTSD and depression originate from the murder of her son, who died in front of

her, in the family’s front yard in late 2015. R. 333, 398.

opined that Claimant had marked impairment related to adaptation to stress and

social functioning, and moderate impairment in concentration. R. 396. With

respect to Claimant’s ability to adapt to stress, Dr. White noted Claimant was

hypervigilant, had intrusive memories, frequent crying spells, and high levels of

anxiety. R. 396. Dr. White noted that Claimant was socially withdrawn and

avoided crowds. R. 396. Dr. White noted Claimant was easily distracted due to

high anxiety, frequent crying spells. R. 396. In response to the question “what

are specific mental health limitations or restrictions that would preclude the

claimant from working,” Dr. White responded that Claimant had panic attacks 2

to 3 times a day, frequent crying spells, high levels of anxiety, poor concentration,

intrusive memories of her son’s murder distracting her, and flashbacks hearing

gunshots. R. 396.

On July 19, 2019, Nurse Practitioner Patricia Burgunder completed a mental

capacity source statement. R. 770-72. In the section on sustained concentration

and persistence, Burgunder observed Claimant had marked limitations in: the

ability to carry out detailed instructions, the ability to maintain attention and

concentration for extended periods, the ability to complete a normal workday

without interruptions from psychologically based symptoms, the ability to

complete a normal workweek without interruptions from psychologically based

symptoms, and the ability to perform at a consistent pace with a one hour lunch

break and two 15 minutes rest periods. R. 770. Burgunder opined Claimant had

moderate limitations in: the ability to perform activities within a schedule,

maintain regular attendance, and be punctual within customary limits, with

respect to interaction the ability to interact appropriately with the general public;

and with respect to adaptation, the ability to respond appropriately to changes in

the work setting, and the ability to set realistic goals or make plans. R. 771.

Burgunder indicates that her opinion was based on direct observation/treatment,

historical medical records, patient report, her own experience,

psychological/psychiatric evaluations, counseling/therapy records. R. 772.

In 2017, the Social Security Administration revised its regulations regarding

the consideration of medical evidence—with those revisions applicable to all

claims filed after March 27, 2017. See 82 FR 5844-01, 2017 WL 168819 (Jan. 18, 2017).

The revisions redefined terms related to evidence; revised how the agency

considers medical opinions and prior administrative medical findings; and revised

rules about treating sources, acceptable medical sources, and medical and

psychological consultants. Id.; see 20 C.F.R. § 404.1520c and 20 C.F.R. § 416.920c.

The final rules became effective on March 27, 2017. Id. Because Claimant filed

her claim after March 27, 2017, the new regulations apply in this case. 20 C.F.R. §

404.1520c; 20 C.F.R. § 416.920c.

Under the new rules, an ALJ must apply the same factors in the

consideration of the opinions from all medical sources and administrative medical

findings, rather than affording specific evidentiary weight to any particular

provider’s opinions. 20 C.F.R. §§ 404.1520c(a); 416.920c(a). “The ALJ will

articulate in the administrative decision how persuasive all of the medical

opinions are in the case record, 20 C.F.R. § 404.1520c(b) . . . .” Swingle v. Comm’r of

the SSA, No. 6:20-cv-365, 2020 U.S. Dist. LEXIS 213488, at *4 (M.D. Fla. Nov. 6, 2020)

(internal quotation marks omitted). A “medical opinion” is defined as “’a

statement from a medical source about what [the claimant] can still do despite

[his/her] impairment(s)’ and whether the claimant has any functional limitations

or restrictions regarding certain enumerated abilities.” Wood v. Comm’r of Soc.

Sec., 2021 U.S. Dist. LEXIS 118743, at *16 (M.D. Fla. June 25, 2021) (quoting 20 C.F.R.

§ 404.1513(a)(2)). A medical opinion does not include judgments about the nature

and severity of the impairments, medical history, clinical findings, diagnosis,

treatment or prognosis. Id. (citing § 404.1513(a)(3)).

With respect to medical opinions, the ALJ must consider: 1) supportability;

2) consistency; 3) relationship with the claimant; 4) specialization; and 5) “other

factors that tend to support or contradict a medical opinion or prior administrative

medical finding” in assessing an opinion’s persuasiveness. 20 C.F.R. §§

404.1520c(c)(1)-(5); 416.920c(c)(1)-(5). Despite the substantive changes in the

regulations, the current version still instructs an ALJ to weigh all medical opinions

in light of the length, purpose and extent of the treatment relationship and

frequency of examinations which continues to “indicate the importance of treating

physicians’ opinions – especially where the physician has maintained a

longstanding and consistent relationship with the claimant.” Simon v.

Commissioner of Soc. Sec., No. 19-14682, 2021 U.S. App. LEXIS 17098, at *21 n. 4 (11th

Cir. June 9, 2021).

Supportability and consistency constitute the most important factors in any

evaluation of a medical opinion, and the ALJ must explain the consideration of

those two factors. 20 C.F.R. §§ 404.1520c(b)(2); 416.920c(b)(2). Thus, “[t]he more

relevant the objective medical evidence and supporting explanations presented by

a medical source are to support his or her medical opinion(s) or prior

administrative medical finding(s),” and “[t]he more consistent a medical

opinion(s) or prior administrative medical finding(s) is with the evidence from

other medical sources and nonmedical sources the more persuasive the medical

opinions or prior administrative medical finding(s) will be.” 20 C.F.R. §§

404.1520c(c)(1)-(2); 416.920c(c)(1)-(2); see Cook v. Comm'r of Soc. Sec., No. 6:20-cv-

1197, 2021 U.S. Dist. LEXIS 77456, at *6 (M.D. Fla. Apr. 6, 2021) (“Overall,

supportability relates to the extent to which a medical source has articulated

support for the medical source’s own opinion, while consistency relates to the

relationship between a medical source’s opinion and other evidence within the

record.”). The ALJ may, but is not required to, explain how the ALJ considered

the remaining three factors (relationship with claimant, specialization, and “other

factors”). 20 C.F.R. §§ 404.1520c(b)(2); 416.920c(b)(2).

With respect to Claimant’s mental status, the ALJ did not address Dr.

Minville or Dr. White’s opinions, found Nurse Practitioner Burgunder’s opinion

unpersuasive, and relied instead on the opinions of two state agency psychological

consultants, Dr. Buffone and Dr. Willens. R. 20-21. The Commissioner argues

that Dr. Minville and Dr. White only offered opinions on issues reserved to the

Commissioner. Doc. No. 31 at 22. Thus, the Commissioner suggests that the

ALJ did not have to consider Dr. Minville’s and Dr. White’s opinions. Id. The

Commissioner argues that Dr. Minville’s statements that Claimant was

incapacitated due to her anxiety and that her applied focus and concentration was

limited to 15-30 minutes, were not opinions because he did not say she would be

functionally limited in a work environment as a result of these limitations. Doc.

No. 31 at 22.

The Commissioner’s argument regarding Dr. Minville’s opinions amounts

to nothing more than a post hoc rationalization for the ALJ’s failure to address the

opinions. The Commissioner provides no support for his argument that Dr.

White’s opinions were ultimate findings reserved for the Commissioner. Doc.

No. 31 at 22-23. Thus, the Court will not affirm the ALJ’s decision on this basis.

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

To the extent that Dr. Minville and Dr. White opined on Claimant’s

cognitive functional limitations, the ALJ must consider those opinions, assess their

persuasiveness, and explain his decision, particularly with respect to

supportability and consistency. 20 C.F.R. §§ 404.1520c(b)(2); 416.920c(b)(2); see

Pierson v. Comm’r of Soc. Sec., No. 6:19-cv-01515, 2020 U.S. Dist. LEXIS 72260, at *14

(M.D. Fla. Apr. 8, 2020) (“As an initial matter, the new regulations require an

explanation, even if the ALJ (and the Commissioner) believe an explanation is

superfluous.”), report and recommendation adopted, 2020 WL 1955341 (M.D. Fla. Apr.

23, 2020); see also Michael v. Saul, No. 2:20cv238, 2021 WL 1811736, at *11 (N.D. Ind.

May 6, 2021) (“the ALJ cannot merely summarize the evidence, as a whole, and

then conclude that [medical] opinions are not consistent with the evidence as a

whole. Rather, the ALJ must build a logical analytical bridge explaining what

particular evidence undermined [the medical] opinions and why.” (citing Moore v.

Colvin, 743 F.3d 1118, 1121 (7th Cir. 2014))); Brandy T. v. Comm’r of Soc. Sec. Admin.,

No. 1:20-cv-2994, 2021 WL 1851378, at *14 (D.S.C. May 10, 2021) (ALJ reversibly

erred in conclusory rejection of physician opinion for failure to adequately address

supportability and consistency factors as required by new regulations).

The new regulations require an ALJ to articulate the persuasiveness of all

medical opinions in the case record. 20 C.F.R. § 404.1520c(b); Swingle v. Comm’r

of the SSA, No. 6:20-cv-365, 2020 U.S. Dist. LEXIS 213488, at *4 (M.D. Fla. Nov. 6,

2020). The ALJ failed to do so in this instance. As such, this deficiency requires

reversal and remand.*

Accordingly, it is ORDERED that:

1. This matter is REVERSED and REMANDED tothe

Commissioner for further proceedings pursuant to sentence four

of 42 U.S.C. § 405(g);

2. The Clerk is directed to enter a final judgment in favor of the

Claimant; and

3. The Clerk is directed to close the case.

DONE in Orlando, Florida, on July 12, 2021.

DAVID A. BAKER

UNITED STATES MAGISTRATE JUDGE

3 Because this matter will be remanded, the Court will not address the remaining errors ascribed

to the ALJ’s decision. The ALJ will have to reweigh the evidence upon remand and may

reconsider the issues raised by Claimant. See Diorio v. Heckler, 721 F.2d 726, 729 (11th Cir. 1983)

(on remand the ALJ must reassess the entire record); McClurkin v. Soc. Sec. Admin., 625 F. App’x

960, 963 n.3 (11th Cir. 2015) (no need to analyze other issues when case must be reversed due to

other dispositive errors).

Copies furnished to:

Bartholomew C. Zadel

Morgan & Morgan

988 Woodcock Road

Orlando, Florida 32803

Maria Chapa Lopez

United States Attorney

John F. Rudy, III

Assistant United States Attorney

400 N. Tampa St.

Suite 3200

Tampa, Florida 33602

Christopher G. Harris, Chief Counsel, Region IV

John C. Stoner, Deputy Regional Chief Counsel

Megan E. Gideon, Branch Chief

Sarah Choi, Assistant Regional Counsel

Social Security Administration

Office of the General Counsel

Atlanta Federal Center

61 Forsyth Street, S.W., Suite 20T45

Atlanta, Georgia 30303-8920

The Honorable James Satterwhite

Administrative Law Judge

Office of Hearing Operations

4300 Goodfellow Boulevard

St. Louis, Missouri 63120-1700