Pecore v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

WENDY PECORE,

Plaintiff,

v. CASE NO. 8:20-cv-735-MCR

ACTING COMMISSIONER OF

THE SOCIAL SECURITY

ADMINISTRATION,

Defendant.

_______________________________/

MEMORANDUM OPINION AND ORDER1

THIS CAUSE is before the Court on Plaintiff’s appeal of an

administrative decision denying her application for a period of disability and

disability insurance benefits (“DIB”). Following an administrative hearing

held on February 19, 2019, the assigned Administrative Law Judge (“ALJ”)

issued a decision, finding Plaintiff not disabled from October 20, 2016, the

amended alleged disability onset date, through March 4, 2019, the date of the

ALJ’s decision.2 (Tr. 17-61.) Based on a review of the record, the briefs, and

the applicable law, the Commissioner’s decision is REVERSED and

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

Magistrate Judge. (Doc. 17.)

2 Plaintiff had to establish disability on or before December 31, 2021, her date

last insured, in order to be entitled to a period of disability and DIB. (Tr. 17.)

REMANDED.

I. Standard of Review

The scope of this Court’s review is limited to determining whether the

Commissioner applied the correct legal standards, McRoberts v. Bowen, 841

F.2d 1077, 1080 (11th Cir. 1988), and whether the Commissioner’s findings

are supported by substantial evidence, Richardson v. Perales, 402 U.S. 389,

390 (1971). “Substantial evidence is more than a scintilla and is such

relevant evidence as a reasonable person would accept as adequate to support

a conclusion.” Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th

Cir. 2004). 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 district court must view the evidence 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); accord Lowery

v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (stating the court must

scrutinize the entire record to determine the reasonableness of the

Commissioner’s factual findings).

II. Discussion

Plaintiff raises three issues on appeal. First, Plaintiff contends that

the ALJ erred by giving little weight to the treating opinions of Adam Rosen,

M.D. (her rheumatologist) and Ashraf Hanna, M.D. (her pain management

specialist), while according great weight to the opinions of Nalini Tella, M.D.

(the State agency non-examining medical consultant). (Doc. 30 at 10-14.)

Plaintiff points out that Dr. Tella’s opinions were issued back in April of 2018

before much of the medical evidence was added to the record, including Dr.

Rosen’s January 30, 2019 Physical Medical Source Statement (“MSS”),

Plaintiff’s December 13, 2018 prescription for a rolling walker by Dr. Hanna,

and Plaintiff’s September 18, 2018 disabled parking permit. (Id. at 10-13.)

Second, Plaintiff contends that the ALJ’s residual functional capacity (“RFC”)

assessment and hypothetical question to the vocational expert (“VE”) did not

incorporate all of her symptoms and impairments. (Id. at 14-18.) Plaintiff

explains:

Substantial evidence does not support the ALJ’s RFC for light

work with no mental impairments and no assistive device. The

ALJ minimizes [Plaintiff’s] diagnosis of RA [rheumatoid

arthritis], Psoriatic [A]rthritis, and degenerative joint disease of

the cervical, thoracic and lumbar spine. The ALJ also mistakenly

states that Dr. Rosen never diagnosed [Plaintiff] with Lupus, but

his treatment notes diagnose or acknowledge her previous

diagnosis of SLE [Systemic Lupus Erythematosus] at almost

every visit. [Plaintiff] had the classic symptoms of RA, Psoriatic

Arthritis, Psoriasis and SLE. Yet, the ALJ fails to include most

of these symptoms in his RFC or hypothetical to the VE. For

example, the ALJ fails to take into account her well documented

photosensitivity or side effects of her medications. Allowing for

frequent use of her hands . . . does not take into account her

chronic complaints of wrist and hand pain with joint swelling and

stiffness. Last and most importantly, the ALJ fails to assign a

limitation that [Plaintiff] would need an assistive device in the

form of a rolling walker or cane to walk or stand. This limitation

alone would have precluded past work as the VE testified at the

hearing.

(Id. at 16-17 (footnotes and internal citations omitted).) Third, Plaintiff

contends that the ALJ failed to properly consider her medication side effects,

such as dizziness, fatigue, trouble concentrating, and poor memory, when

determining that Plaintiff was capable of performing her past relevant jobs,

which were sedentary and skilled with a Specific Vocational Preparation

(“SVP”) of 7 or 8. (Id. at 18-20.)

Defendant responds that the ALJ properly evaluated the medical

opinions of record, his RFC assessment is supported by substantial evidence,

and he did not err in his consideration of Plaintiff’s medication side effects

because Plaintiff did not report any side effects to her treating providers.

(Doc. 31.)

A. Standard for Evaluating Opinion Evidence and

Subjective Symptoms

The ALJ is required to consider all the evidence in the record when

making a disability determination. See 20 C.F.R. § 404.1520(a)(3). With

regard to medical opinion evidence, “the ALJ must state with particularity

the weight given to different medical opinions and the reasons therefor.”

Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1179 (11th Cir. 2011).

Substantial weight must be given to a treating physician’s opinion unless

there is good cause to do otherwise. See Lewis v. Callahan, 125 F.3d 1436,

1440 (11th Cir. 1997).

“‘[G]ood cause’ exists when the: (1) treating physician’s opinion was not

bolstered by the evidence; (2) evidence supported a contrary finding; or (3)

treating physician’s opinion was conclusory or inconsistent with the doctor’s

own medical records.” Phillips v. Barnhart, 357 F.3d 1232, 1240-41 (11th

Cir. 2004). When a treating physician’s opinion does not warrant controlling

weight, the ALJ must nevertheless weigh the medical opinion based on: (1)

the length of the treatment relationship and the frequency of examination,

(2) the nature and extent of the treatment relationship, (3) the medical

evidence supporting the opinion, (4) consistency of the medical opinion with

the record as a whole, (5) specialization in the medical issues at issue, and (6)

any other factors that tend to support or contradict the opinion. 20 C.F.R. §

404.1527(c)(2)-(6).

Although a treating physician’s opinion is generally entitled to more

weight than a consulting physician’s opinion, see Wilson v. Heckler, 734 F.2d

513, 518 (11th Cir. 1984) (per curiam); 20 C.F.R. § 404.1527(c)(2), “[t]he

opinions of state agency physicians” can outweigh the contrary opinion of a

treating physician if “that opinion has been properly discounted,” Cooper v.

Astrue, No. 8:06-cv-1863-T-27TGW, 2008 WL 649244, *3 (M.D. Fla. Mar. 10,

2008). Further, “the ALJ may reject any medical opinion if the evidence

supports a contrary finding.” Wainwright v. Comm’r of Soc. Sec. Admin., No.

06-15638, 2007 WL 708971, *2 (11th Cir. Mar. 9, 2007) (per curiam); see also

Sryock v. Heckler, 764 F.2d 834, 835 (11th Cir. 1985) (per curiam) (same).

“The ALJ is required to consider the opinions of non-examining state

agency medical and psychological consultants because they ‘are highly

qualified physicians and psychologists, who are also experts in Social

Security disability evaluation.’” Milner v. Barnhart, 275 F. App’x 947, 948

(11th Cir. 2008) (per curiam); see also SSR 96-6p3 (stating that the ALJ must

treat the findings of State agency medical consultants as expert opinion

evidence of non-examining sources). While the ALJ is not bound by the

findings of non-examining physicians, the ALJ may not ignore these opinions

and must explain the weight given to them in his decision. SSR 96-6p.

When a claimant seeks to establish disability through her own

testimony of pain or other subjective symptoms, the Eleventh Circuit’s three-

part “pain standard” applies. Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir.

3 SSR 96-6p has been rescinded and replaced by SSR 17-2p effective March

27, 2017. However, because Plaintiff’s application predated March 27, 2017, SSR

96-6p was still in effect on the date of the ALJ’s decision.

1991) (per curiam). “If the ALJ decides not to credit such testimony, he must

articulate explicit and adequate reasons for doing so.” Id.

The pain standard requires (1) evidence of an underlying medical

condition and either (2) objective medical evidence that confirms

the severity of the alleged pain arising from that condition or (3)

that the objectively determined medical condition is of such a

severity that it can be reasonably expected to give rise to the

alleged pain.

Id.

Once a claimant establishes that her pain is disabling through

“objective medical evidence from an acceptable medical source that shows . . .

a medical impairment(s) which could reasonably be expected to produce the

pain or other symptoms,” pursuant to 20 C.F.R. § 404.1529(a), “all evidence

about the intensity, persistence, and functionally limiting effects of pain or

other symptoms must be considered in addition to the medical signs and

laboratory findings in deciding the issue of disability,” Foote, 67 F.3d at 1561.

See also SSR 16-3p4 (stating that after the ALJ finds a medically

determinable impairment exists, the ALJ must analyze “the intensity,

persistence, and limiting effects of the individual’s symptoms” to determine

“the extent to which an individual’s symptoms limit his or her ability to

4 SSR 16-3p rescinded and superseded SSR 96-7p, eliminating the use of the

term “credibility,” and clarifying that “subjective symptom evaluation is not an

examination of an individual’s character.” SSR 16-3p.

perform work-related activities”).

As stated in SSR 16-3p:

In considering the intensity, persistence, and limiting effects of

an individual’s symptoms, [the ALJ must] examine the entire

case record, including the objective medical evidence; an

individual’s statements about the intensity, persistence, and

limiting effects of symptoms; statements and other information

provided by medical sources and other persons; and any other

relevant evidence in the individual’s case record.

. . .

In evaluating an individual’s symptoms, it is not sufficient for our

adjudicators to make a single, conclusory statement that “the

individual’s statements about his or her symptoms have been

considered” or that “the statements about the individual’s

symptoms are (or are not) supported or consistent.” It is also not

enough for our adjudicators simply to recite the factors described

in the regulations for evaluating symptoms.5 The determination

or decision must contain specific reasons for the weight given to

the individual’s symptoms, be consistent with and supported by

the evidence, and be clearly articulated so the individual and any

subsequent reviewer can assess how the adjudicator evaluated

the individual’s symptoms.

. . .

In evaluating an individual’s symptoms, our adjudicators will not

assess an individual’s overall character or truthfulness in the

manner typically used during an adversarial court litigation. The

focus of the evaluation of an individual’s symptoms should not be

to determine whether he or she is a truthful person. Rather, our

adjudicators will focus on whether the evidence establishes a

5 These factors include: (1) a claimant’s daily activities; (2) the location,

duration, frequency, and intensity of the claimant’s pain or other symptoms; (3) any

precipitating and aggravating factors; (4) the type, dosage, effectiveness, and side

effects of any medication taken to alleviate the claimant’s pain or other symptoms;

(5) any treatment, other than medication, received by the claimant to relieve the

pain or other symptoms; (6) any measures (other than treatment) used to relieve the

pain or other symptoms (e.g., lying flat on his or her back, standing for 15 to 20

minutes every hour, or sleeping on a board); and (7) any other factors concerning

the claimant’s functional limitations and restrictions due to pain or other

symptoms. 20 C.F.R. § 404.1529(c)(3); SSR 16-3p.

medically determinable impairment that could reasonably be

expected to produce the individual’s symptoms and given the

adjudicator’s evaluation of the individual’s symptoms, whether

the intensity and persistence of the symptoms limit the

individual’s ability to perform work-related activities[.]

SSR 16-3p.

“[A]n individual’s attempts to seek medical treatment for symptoms

and to follow treatment once it is prescribed” will also be considered “when

evaluating whether symptom intensity and persistence affect the ability to

perform work-related activities.” Id. “[I]f the frequency or extent of the

treatment sought by an individual is not comparable with the degree of the

individual’s subjective complaints, or if the individual fails to follow

prescribed treatment that might improve symptoms, [the adjudicator] may

find the alleged intensity and persistence of an individual’s symptoms are

inconsistent with the overall evidence of record.” Id. However, the

adjudicator “will not find an individual’s symptoms inconsistent with the

evidence in the record on this basis without considering possible reasons he

or she may not comply with treatment or seek treatment consistent with the

degree of his or her complaints.” Id. In considering an individual’s treatment

history, the adjudicator may consider, inter alia, one or more of the following:

• That the individual may have structured his or her

activities to minimize symptoms to a tolerable level by avoiding

physical activities or mental stressors that aggravate his or her

symptoms;

• That the individual may receive periodic treatment or

evaluation for refills of medications because his or her symptoms

have reached a plateau;

• That the individual may not agree to take prescription

medications because the side effects are less tolerable than the

symptoms;

• That the individual may not be able to afford treatment

and may not have access to free or low-cost medical services;

• That a medical source may have advised the individual

that there is no further effective treatment to prescribe or

recommend that would benefit the individual;

• That due to various limitations (such as language or mental

limitations), the individual may not understand the appropriate

treatment for or the need for consistent treatment.

Id.

B. Relevant Opinion Evidence

1. Treating Sources

On September 18, 2018, Dr. Hanna, Plaintiff’s pain management

specialist, completed an Application for a Disabled Person Parking Permit on

Plaintiff’s behalf, stating that Plaintiff had a temporary disability from

September 2018 through March 2019, which limited or impaired her ability

to walk. (Tr. 301.) More specifically, Plaintiff’s disability was her inability to

walk without the use of an assistive device as a result of severe limitations in

walking due to an arthritic, neurological, or orthopedic condition. (Id.) On

December 13, 2018, Dr. Hanna prescribed a rolling walker for Plaintiff

without specifying any conditions of use. (Tr. 1064.)

On January 30, 2019, Dr. Rosen, Plaintiff’s rheumatologist, completed

a Physical MSS of Plaintiff’s abilities. (Tr. 1066-69.) The grounds for his

opinions included: a physical examination, direct observation/treatment of

Plaintiff, historical medical records, imaging studies, laboratory results, and

Plaintiff’s report. (Tr. 1068-69.) Dr. Rosen noted that Plaintiff experienced

stiffness, fatigue, and joint pain in her hands, wrists, feet, ankles, and lower

back, affecting her functioning and activities of daily living. (Tr. 1066.)

Plaintiff’s symptoms were confirmed by synovitis and decreased grip strength

on examination, and MRI findings showing erosion in her hands and wrists.

(Id.)

Dr. Rosen opined that Plaintiff’s pain or other symptoms were severe

enough to constantly interfere with the attention and concentration needed to

perform even simple work tasks. (Id.) He also opined that Plaintiff could

walk less than one city block without rest or severe pain and she used a

cane/walker for assistance; she could stand for 15 minutes at one time; she

could sit for 15 minutes at one time; she could stand/walk for less than two

hours and sit for less than two hours total in an eight-hour workday; and she

needed to take unscheduled breaks lasting about 30 minutes, every 30

minutes. (Tr. 1067.) Further, Dr. Rosen opined that Plaintiff could lift and

carry less than 10 pounds occasionally and 10 pounds rarely; she could

occasionally finger, reach, handle, and feel; and she needed to lie down at

unscheduled times for four hours total in an eight-hour workday. (Tr. 1067-

68.) Finally, Dr. Rosen opined that Plaintiff would likely be absent from

work more than four days per month as a result of her impairments or

treatment. (Tr. 1068.)

2. State Agency Non-Examining Medical Sources

On July 12, 2017, based on a review of the records available as of that

date, Shakra Junejo, M.D. completed a Physical RFC Assessment of

Plaintiff’s abilities. (Tr. 87-88.) Dr. Junejo opined that Plaintiff could lift

and/or carry twenty pounds occasionally and ten pounds frequently; could sit

for about six hours and stand and/or walk for about six hours in an eight-

hour workday; and had no postural, manipulative, visual, communicative, or

environmental limitations. (Id.) Dr. Junejo noted that the severity of

Plaintiff’s limitations was partly supported by the objective evidence. (Tr.

88.)

On April 22, 2018, based on a review of the records available as of that

date, Dr. Tella completed a Physical RFC Assessment of Plaintiff’s abilities.

(Tr. 928-29, 931-39.) Dr. Tella opined that Plaintiff could lift and/or carry 20

pounds occasionally and 10 pounds frequently; she could stand and/or walk

for at least two hours and sit for about six hours in an eight-hour workday;

she should never climb ladders, ropes, or scaffolds; and she could occasionally

climb ramps/stairs, balance, stoop, kneel, crouch, and crawl. (Tr. 932-33.)

Dr. Tella based these opinions on Plaintiff’s lumbar stenosis, post-

laminectomy syndrome, chronic pain syndrome, degenerative disc disease of

the lumbar and thoracic spine, cervicalgia, bilateral hip pain, uncomplicated

opioid dependence, and positive antinuclear antibody (“ANA”) test. (Id.) Dr.

Tella also opined that Plaintiff should avoid all exposure to hazards due to

her long-term opioid use and avoid concentrated exposure to extreme

cold/heat and vibration due to her arthritic pain. (Tr. 935.)

C. The ALJ’s Decision

The ALJ found, at step two of the sequential evaluation process,6 that

Plaintiff had the following severe impairments: degenerative disc disease,

osteoarthritis, rheumatoid arthritis, inflammatory arthritis, psoriasis,

psoriatic arthropathy, and anemia. (Tr. 19.) Further, the ALJ found that

Plaintiff had the RFC to perform light work7 with the following limitations:

[T]he claimant has the ability to lift 20 pounds occasionally and

10 pounds frequently[]; stand and/or walk [for] 2 hours and sit

[for] 6 hours per 8-hour work[-]day. The claimant is never able to

climb ladders, ropes, or scaffolds; but is able to occasionally climb

ramps and stairs, balance, stoop, kneel, crouch, and crawl. The

claimant is able to frequently reach, handle, finger and feel.

Furthermore, she must avoid vibration, temperature extremes,

hazardous machinery, and heights.

(Tr. 21.)

In making this finding, the ALJ discussed, inter alia, Plaintiff’s

6 The Commissioner employs a five-step process in determining disability.

See 20 C.F.R. § 404.1520(a)(4).

7 By definition, light work involves lifting no more than twenty pounds at a

time with frequent lifting or carrying of objects weighing up to ten pounds; it

requires a good deal of walking, standing, or sitting most of the time with some

pushing and pulling of arm or leg controls. 20 C.F.R. § 404.1567(b); SSR 83-10.

subjective complaints, third-party reports, the objective medical findings, the

treatment records, and the opinion evidence. (Tr. 21-26.) The ALJ found

that Plaintiff’s statements concerning the intensity, persistence, and limiting

effects of her symptoms were not entirely consistent with the medical

evidence and other evidence in the record. (Tr. 22.) The ALJ explained:

Based on the record as [a] whole, it appears that the claimant

may be overstating the intensity, persistence, and limiting effects

of her impairments to the extent she suggests that she is totally

disabled and unable to work. The medical evidence . . . shows

that the claimant’s symptoms are well-managed with medication.

Indeed, the claimant reported essentially the same stable level of

pain throughout medical treatment. Moreover, the claimant

reported significant improvement with medication and other

treatments, including nerve block injections. Additionally, the

claimant reported to Dr. Rosen that Dr. Hanna suggested

surgical spinal intervention, which she denied (Ex. 19F/2),

further suggesting that conservative treatment is effective. To

this end, the claimant reported that she has experienced chronic

lower back pain since she was a teenager and has managed it

with varying doses of opiate therapy (Ex. 2F/3, 4F/6), during

which time she has been able to work (Ex. 5D). Again, this

suggests that medication has effectively managed the claimant’s

symptoms to the extent that she is not totally precluded from

working.

Functionally, the claimant testified that she is able to walk for 10

minutes without an assistive device, sit for “not long,” stand for

10 minutes, and lift and carry 10 pounds (Testimony). She

further testified that she is able to reach overhead, but had some

problems with manipulation. However, she also testified that she

is able to play games on her phone, change her grandchild’s

diapers, fold laundry, and open doors (Testimony). Of note, the

record indicates that in December 2018, despite finding that the

claimant possessed a normal gait on physical examination (Ex.

20F/5), Dr. Hanna prescribed a rolling walker (Ex. 21F). Around

the same time, Dr. Rosen noted only that the claimant walked

with a limp and recommended that she exercise (Ex. 19F/6).

These notes are inconsistent with the claimant’s allegations that

she spends all day laying in bed and is unable to get up (Ex. 11E,

Testimony). Indeed, at the hearing, the claimant testified that

she does not use the walker around the house, but rather only

when shopping or going to the store, and is able to walk without

it (Testimony).

The record also contains other inconsistencies. For example, the

claimant alleged that her husband helps her to get up, get

dressed, shower, and cook, although she is able to feed herself,

socialize, watch television, shop, sit and fold laundry, and wipe

the counter (Ex. 7E, 8E, 11E). However, despite alleging that she

is unable to perform almost all activities of daily living,

treatment notes indicate that after the amended alleged onset

date in October 2016, the claimant reported to her medical

provider that her activities of daily living were “not significantly

affected” (Ex. 5F/5, 16, 6F/221). Additionally, despite the

claimant’s allegation that she is unable to fully care for herself,

four months prior to the hearing, the claimant reported to Dr.

Hanna that she was travelling and taking care of her grandchild

(Ex. 20F/8). Indeed, at the hearing, the claimant acknowledged

that she is able to care for her 14-month-old grandchild and two

dogs with assistance (Testimony). The claimant further testified

that she is able to drive, go outside, shop, go to stores, walk

outside, and go to church.

Thus, while the record is clear that the claimant has some

symptoms related to her conditions, including pain, they appear

to be well-managed with medication and other treatment, and it

does not support claimant’s allegations of further limitations.

(Tr. 24-25.)

As to the opinion evidence, the ALJ made the following findings:

[The ALJ] affords little weight to the State agency medical

consultant’s assessment of the claimant’s physical abilities on

reconsideration that the claimant is able to stand for 6 hours in

an 8-hour work[-]day and has no additional non-exertional

limitations (Ex. 4A) because the consultant did not have the

benefit of the evidence received at the hearing level and did not

adequately consider the allegations of the claimant, which

support more restrictive limitations.

The [ALJ] also affords little weight to Dr. Rosen’s [MSS] (Ex.

22F). . . . Although Dr. Rosen indicated that he based his

opinion on direct observation/treatment, physical examination,

historical medical records, imaging studies, and laboratory

results, it appears that most of the limitations opined by Dr.

Rosen appear to be based primarily on the claimant’s subjective

reports of pain. Indeed, except for noting decreased grip strength

on physical examination, Dr. Rosen did not identify any objective

medical evidence to support his opinion on the claimant’s

physical abilities and limitations. Accordingly, the [ALJ]

assessed manipulative non-exertional limitations to account for

this, although the [ALJ] affords little weight to the rest of Dr.

Rosen’s opinion.

Conversely, the [ALJ] affords great weight to the State agency

medical consultant, Dr. Nalini Tella, M.D.’s[] assessment on

review that the claimant is capable of performing work at the

light exertional level, except that the claimant is able to stand for

2 hours in a[n] 8-hour work[-]day, with additional postural and

environmental limitations (Ex. 11F, 13F). This assessment was

rendered after reviewing additional medical evidence, including

new spinal and rheumatology evidence, and is consistent

therewith. However, after a thorough review of all of the

evidence, including the claimant’s allegations, the [ALJ] deems it

appropriate to assess non-exertional manipulative limitations

based on Dr. Rosen’s opinion.

As for the evidence showing the claimant’s application for a

disabled person parking permit, signed by Dr. Hanna (Ex. 20E),

and the Oswestry Disability Index profile completed in 2015 (Ex.

2F/5), to the extent that they constitute opinions, the [ALJ]

affords them little weight. Indeed, they are not opinions

regarding the nature and severity of the claimant’s impairments,

the claimant’s remaining physical or mental abilities despite the

impairments, or the claimant’s physical or mental restrictions,

but rather a conclusion that the claimant is disabled. A

determination of whether an individual is “disabled” is an

administrative finding that is reserved to the Commissioner.

Accordingly, the [ALJ] finds that these records are conclusions

not entitled to controlling weight or special significance.

(Tr. 25-26.)

The ALJ also considered the non-medical evidence of record and stated:

The claimant’s husband, mother, and step-father submitted

statements consistent with the claimant’s own allegations;

specifically, that the claimant has experienced worsening

symptoms, including pain, that limit her functionally and in

performing her activities of daily living (Ex. 19E, 21E, 22E).

Although these statements are all consistent with each other,

they are not consistent with the medical evidence such that the

claimant has reported consistent and stable symptoms to her

medical providers, as discussed above. Accordingly, the [ALJ]

only affords them some weight. Additionally, the [ALJ]

considered the notes of field office personnel recorded during an

in-person interview with the claimant, stating that the claimant

had no difficulty with hearing, reading, breathing,

understanding, coherency, concentrating, talking, answering,

standing, walking, seeing, using her hands, or writing, although

she exhibited some difficulty with sitting and got up to move

around a few times (Ex. 2E).

(Tr. 24.)

Then, at step four, the ALJ determined that Plaintiff was capable of

performing her past relevant work as a Marketing Director (a sedentary,

skilled job with an SVP of 8); Regional Manager (a sedentary, skilled job with

an SVP of 8); and Market Research Analyst (a sedentary, skilled job with an

SVP of 7). (Tr. 26.) Thus, the ALJ determined that Plaintiff was not under a

disability from October 20, 2016 through March 4, 2019. (Tr. 27.)

D. Analysis

The Court agrees with Plaintiff that the ALJ improperly evaluated the

opinion evidence and his RFC assessment is not supported by substantial

evidence. The ALJ gave great weight to Dr. Tella’s non-examining opinions

because they (unlike Dr. Junejo’s non-examining opinions) were “rendered

after reviewing additional medical evidence, including new spinal and

rheumatology evidence, and [were] consistent therewith.” (Tr. 25.) However,

in April of 2018 when Dr. Tella issued her opinions, she did not have the

benefit of reviewing and considering any of the subsequent treatment

records, Dr. Rosen’s January 30, 2019 MSS, and Dr. Hanna’s prescription for

a rolling walker and statements in Plaintiff’s Application for a Disabled

Person Parking Permit, all of which tend to corroborate Plaintiff’s claim of

disability.

Defendant argues that it was not an error for the ALJ to rely on Dr.

Tella’s somewhat outdated opinions because the ALJ had the benefit of

reviewing the complete record before issuing his decision. Even accepting

Defendant’s position, the Court notes that the ALJ’s reasons for essentially

discounting the treating opinions, while according great weight to the non-

examining opinions, are not supported by substantial evidence.

First, the ALJ stated that Dr. Rosen’s opinions seemed to be based

primarily on Plaintiff’s subjective reports of pain and that Dr. Rosen did not

identify any objective medical evidence in support of his opinions other than

decreased grip strength. (Id.) Contrary to the ALJ’s statement, in addition

to decreased grip strength, Dr. Rosen also identified synovitis on physical

examination and erosion in Plaintiff’s hands and wrists as shown on MRI

testing.8 (Tr. 1066.) Dr. Rosen explicitly stated that his opinions were based

not only on Plaintiff’s report, but also on his physical examination, direct

observation/treatment, historical medical records, imaging studies, and

laboratory results. (Tr. 1068-69.)

Moreover, there is an abundance of medical records supporting

Plaintiff’s complaints of disabling pain and other symptoms. For example,

Plaintiff consistently reported lower back pain and stiffness; lumbar

radicular pain; lower extremity numbness, tingling, and weakness; hip pain;

upper back pain; neck pain; pain and swelling in the hands, wrists, ankles,

neck, and lower back; numbness and tingling in the bilateral wrists; knee

pain; joint pain; rheumatoid arthritis flare-ups with worsening joint pain,

rash, malaise, low degree fever, and extreme fatigue. (Tr. 45, 354-55, 357-58,

373, 422, 427, 792, 799, 806, 830, 838, 846, 849, 854, 857, 860, 863, 866, 886,

8 The record does not include any MRI testing of Plaintiff’s hands/wrists, even

though it includes X-rays of Plaintiff’s hands from May 26, 2016. (See Tr. 481.) The

progress notes from Arthritis & Rheumatism Associates where Dr. Rosen practiced

reveal that MRI tests of Plaintiff’s upper extremities were ordered on August 2,

2017. (Tr. 799-800.) Although the record does not include these MRI tests, Dr.

Rosen’s assessments listed, inter alia, effusion of Plaintiff’s hands and wrists,

apparently based on the results of these tests. (Tr. 804.)

958, 987, 1010, 1017, 1033, 1037.) The medical records show that Plaintiff’s

symptoms were aggravated by general activity, prolonged sitting, standing,

walking, bending, twisting, and climbing stairs. (Tr. 354, 358, 422, 830, 886.)

Also, Plaintiff’s flare-ups were worse with stress and sun exposure. (Tr. 792,

799, 806, 813, 1003, 1010, 1017.)

Although the ALJ characterized Plaintiff’s pain level as stable,

Plaintiff’s documented pain level was consistently between 5/10 and 8/10 with

medications. (See Tr. 354, 357, 792, 799, 804, 830, 834, 838, 842, 846, 849,

854, 857, 860, 863, 958, 964, 987, 1008, 1010, 1033.) Moreover, her physical

examinations seemed to confirm the severity of her symptoms by showing,

inter alia: lumbar tenderness to palpation, stiffness, and pain; pain with

motion in the cervical spine and hips; restricted and painful flexion and

extension in the cervical, lumbar, and thoracic spine with moderate spasm;

decreased strength, numbness, and tingling in the lower extremities;

bilateral leg pain; bilateral arm pain; bilateral wrist pain; tenderness in the

feet/ankles; decreased and painful range of motion in the lumbar spine;

moderate tenderness in the left knee; antalgic gait (also limping, slow, and

cautious at times); some positive Straight Leg Raising tests on the right; joint

pain, stiffness, swelling, and tenderness; synovitis of the proximal

interphalangeal (“PIP”) joints and the distal interphalangeal (“DIP”) joints;

muscle cramping and spasm; neck pain and stiffness; rashes; Malar rash;

photosensitivity; psoriasis; fatigue; fever; malaise; headache; memory

impairment; and insomnia. (See Tr. 355, 358, 362-63, 373, 412, 414, 417, 420,

423, 428, 754, 794-96, 800-01, 807-09, 814-16, 831, 835, 839, 843, 846-47, 850,

855, 858, 861, 863-64, 867, 869-70, 873-74, 878, 881, 884, 886-87, 890, 953,

959, 965, 988, 1005-07, 1012-14, 1018-20, 1034, 1038, 1041, 1046, 1050.)

The diagnostic test results cited throughout the record also revealed

abnormalities consistent with the findings on physical examination. (See,

e.g., Tr. 398-400 (noting that a January 6, 2016 lumbar MRI showed: “4 mm

broad-based right paracentral disc protrusion. Mild central canal stenosis.

Moderate right and mild left lateral recess stenosis. Mild right and moderate

left foraminal stenosis. Otherwise multilevel discogenic and facet joint

degenerative changes”); Tr. 824-25 (noting that a January 8, 2018 lumbar

MRI showed: L4-L5 disc bulge and facet hypertrophy with mild to moderate

canal stenosis, recess narrowing, and foraminal narrowing; L3-L4 disc bulge

and facet hypertrophy with mild canal stenosis and moderate foraminal

narrowing toward the right; L5-S1 disc bulge with disc herniation; L2-L3 disc

bulge and facet hypertrophy; neural foramina demonstrated mild to moderate

narrowing bilaterally; and scoliotic curvature of the lumbar spine); Tr. 822

(noting that a January 8, 2018 thoracic MRI showed: T11-T12 disc bulge with

mild canal stenosis and disc herniation to the left with moderate to severe

left foraminal stenosis; T10-T11 disc herniation with mild canal stenosis; T9-

T10 disc herniation; and thoracic spondylosis).)

Given these results and examination findings, Plaintiff’s course of

treatment was regular9 and extensive, including: a laser lumbar laminectomy

with discectomy10 on June 8, 2016; a series of epidural steroid injections with

minimal temporary relief; nerve root block injections; medial branch block

injections; sacral lateral branch block injections; medications (Percocet

10/325; Oxycontin 40 mg; Lyrica 100 mg; nonsteroidal anti-inflammatory

drugs (“NSAIDs”); etc.); Hydrocortisone topical cream; Fentanyl patch;

physical therapy; chiropractic care; massage; a TENS unit; a trial of spinal

cord stimulator; and stretching exercises. (See, e.g., Tr. 348-50, 355-58, 368,

370-74, 532, 828, 895-98, 913, 916-17, 956-57, 962-63, 971-72, 974-75, 980-

83.) Also, as part of her treatment, Plaintiff was prescribed a rolling walker

and a back brace for walking/standing for any length of time, which she also

wore at the hearing. (Tr. 50, 267, 853-54, 1006, 1036; see also Tr. 1033 &

1037-38 (noting that Plaintiff was ambulating with a cane at her November

9 But see Tr. 1017 (noting that Plaintiff did not follow-up “due to financial

reasons and being overwhelmed by too many doctor’s visits”); Tr. 1039 (“Postponing

procedures until February [due to] finances.”).

10 It appears that Dr. Hanna offered a spinal fusion to relieve Plaintiff’s

ongoing back pain, but Plaintiff was “not sure” about undergoing another back

surgery. (Tr. 1003.) The ALJ interprets Plaintiff’s refusal to undergo a second back

surgery as indication that her conservative treatment was effective. (Tr. 24.)

However, the record shows otherwise.

9, 2018 and December 13, 2018 appointments with Dr. Hanna).)11

Further, the record evidence demonstrates that Plaintiff’s condition has

progressively worsened over the years. (See, e.g., Tr. 43, 354, 357, 868, 1004,

1040.) Additionally, Plaintiff’s treatment was not as effective and did not

result in “significant improvement,” (Tr. 24), as the ALJ indicated. (See Tr.

355 (noting “the patient has failed conservative management”); Tr. 373

(“Given the patient’s failure to respond to extensive conservative care, I have

recommended she undergo a lumbar decompression on the right at L5-S1. . .

. Of special note, the patient has been on chronic narcotics at a very high

level.”); Tr. 830, 838 & 842 (noting no relief from trigger point injections); Tr.

879 (“The patient has non-malignant pain syndrome which has not been

adequately controlled nor has responded to other medication, therapy and

interventions, necessitating the use of opioid analgesics prescription for over

72 hours.”).) While the records showed some improvement (up to 60% pain

relief at times), it was temporary, necessitating constant opioid medication

and injection therapy, and Plaintiff still reported pain from 5/10 to 8/10 with

treatment. (See, e.g., Tr. 869, 873, 877, 880, 883, 1045; but see Tr. 828-29 &

968-69 (noting 80% pain relief after a branch block).)

11 Although at some visits, Dr. Rosen encouraged Plaintiff to exercise and

start nutrition therapy, he did so because Plaintiff was overweight. (Tr. 796-97,

802, 816, 1007.) His progress notes still reflected positive examination findings and

symptomatology.

In formulating his RFC, the ALJ also considered Plaintiff’s daily

activities, including her statement to Dr. Hanna on November 9, 2018 that

she was traveling and taking care of her grandchild. (Tr. 25.) However, Dr.

Hanna’s progress note from that day indicates that this isolated activity

exacerbated Plaintiff’s pain. (Tr. 1037; see also Tr. 52 (testifying at the

hearing that Plaintiff could not care for her 14-month-old granddaughter,

other than change her diaper and watch TV with her).) The record

consistently shows that Plaintiff had very limited daily activities12 (see, e.g.,

Tr. 42, 50-54), and any general activity, standing, walking, bending, twisting,

climbing stairs, and prolonged sitting aggravated her symptoms (Tr. 354,

358, 422, 830, 886). Social Security personnel observed that Plaintiff had “a

difficult time sitting” and “had to get up and move around several times”

during her in-person interview. (Tr. 67, 84.) Also, as noted earlier, Plaintiff

12 The performance of limited daily activities is not necessarily inconsistent

with Plaintiff’s allegations of disability. See, e.g., Flynn v. Heckler, 768 F.2d 1273,

1275 (11th Cir. 1985) (per curiam) (reversing and remanding the case to the

Commissioner for lack of substantial evidence to support the finding that the

claimant had no severe impairment, even though the claimant testified that she

performed housework for herself and her husband, accomplished other light duties

in the home, and “was able to read, watch television, embroider, attend church, and

drive an automobile short distances”); White v. Barnhart, 340 F. Supp. 2d 1283,

1286 (N.D. Ala. 2004) (holding that substantial evidence did not support the

decision denying disability benefits, even though the claimant reported that she

took care of her own personal hygiene, cooked, did housework with breaks, helped

her daughter with homework, visited her mother, socialized with friends sometimes,

and, on a good day, drove her husband to and from work, but needed help with

grocery shopping, and could sit, stand, or walk for short periods of time).

was wearing her back brace during the administrative hearing. (Tr. 50.)

The ALJ noted that a few progress reports from BMG mentioned that

Plaintiff’s activities of daily living were “not significantly affected.” (Tr. 414,

425, 754.) Yet, there are many references in the record showing just the

opposite. (See, e.g., Tr. 355 (“At this time [in June of 2016], pain is

significantly affecting the patient’s activities of daily living and negatively

impacting the patient’s quality of life.”); Tr. 357 (“Her [activities of daily

living] have been limited due to pain.”); Tr. 359 (same); Tr. 373 (“As a result

of the current medication, the patient is not functional. Even her husband

says it looks like she is a zombie, walking around in a fog.”); Tr. 792, 806, 813

& 1003 (noting functional limitation).) Based on the foregoing, the Court

cannot conclude that the ALJ properly evaluated the opinion evidence and

that his RFC was supported by substantial evidence.

Accordingly, it is ORDERED:

1. The Commissioner’s decision is REVERSED and REMANDED

pursuant to sentence four of 42 U.S.C. § 405(g), with instructions to the ALJ

to conduct the five-step sequential evaluation process in light of all the

evidence, including all opinion evidence, and conduct any further proceedings

deemed appropriate.

2. The Clerk of Court is directed to enter judgment accordingly,

terminate any pending motions, and close the file.

3. In the event that benefits are awarded on remand, any § 406(b)

or § 13883(d)(2) fee application shall be filed within the parameters set forth

by the Order entered in In re: Procedures for Applying for Attorney’s Fees

Under 42 U.S.C. §§ 406(b) & 1883(d)(2), Case No.: 6:12-mc-124-Orl-22 (M.D.

Fla. Nov. 138, 2012). This Order does not extend the time limits for filing a

motion for attorney’s fees under the Equal Access to Justice Act, 28 U.S.C. §

2412,

DONE AND ORDERED at Jacksonville, Florida, on August 23, 2021.

; MONTE C. RICHARDSON

UNITED STATES MAGISTRATE JUDGE

Copies to:

Counsel of Record

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