# Brown v. Commissioner of Social Security

> District Court, M.D. Florida · July 12, 2021

URL: https://www.frixlaw.com/law-library/cases/10107919

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** July 12, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10107919. Public record. Not legal advice.