Santiago-Martinez v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

LUIS GIOVANNI

SANTIAGO-MARTINEZ,

Plaintiff,

v. Case No. 6:20-cv-402-JRK

KILOLO KIJAKAZI,

Acting Commissioner of Social

Security,1

Defendant.

OPINION AND ORDER2

I. Status

Luis Giovanni Santiago-Martinez (“Plaintiff”) is appealing the

Commissioner of the Social Security Administration’s (“SSA(’s)”) final decision

denying his claim for disability insurance benefits (“DIB”). Plaintiff’s alleged

inability to work is the result of multiple fractures, broken bones, limited

mobility, depression, diabetes, anxiety/nerves, and gun shot wounds. See

1 Kilolo Kijakazi recently became the Acting Commissioner of Social Security.

Pursuant to Rule 25(d), Federal Rules of Civil Procedure, Kilolo Kijakazi should be substituted

for Andrew Saul as Defendant in this suit. No further action need be taken to continue this

suit by reason of the last sentence of section 205(g) of the Social Security Act, 42 U.S.C. '

405(g).

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

Magistrate Judge. See Notice, Consent, and Reference of a Civil Action to a Magistrate Judge

(Doc. No. 31), filed June 23, 2021; Reference Order (Doc. No. 32), entered June 23, 2021.

Transcript of Administrative Proceedings (Doc. No. 21; “Tr.” or “administrative

transcript”), filed September 9, 2020, at 57-58, 73, 205. Plaintiff filed an

application for DIB on November 22, 2016,3 alleging a disability onset date of

September 9, 2016. Tr. at 176-79. The application was denied initially, Tr. at

57-71, 72, 91-95, 96, and upon reconsideration, Tr. at 73-89, 90, 101, 102-08.

On January 3, 2019, an Administrative Law Judge (“ALJ”) held a

hearing, during which she heard testimony from Plaintiff, who was represented

by counsel, and a vocational expert (“VE”).4 See Tr. at 39-56. Plaintiff was forty

years old at the time of the hearing. Tr. at 44. On March 27, 2019, the ALJ

issued a Decision finding Plaintiff not disabled through the date of the Decision.

See Tr. at 21-33.

Thereafter, Plaintiff sought review of the Decision by the Appeals

Council. See Tr. at 4-5. On January 3, 2020, the Appeals Council denied

Plaintiff’s request for review, Tr. at 1-3, thereby making the ALJ’s Decision the

final decision of the Commissioner. On March 6, 2020, Plaintiff commenced this

action under 42 U.S.C. § 405(g) by timely filing a Complaint (Doc. No. 1),

seeking judicial review of the Commissioner’s final decision.

3 Although actually completed on November 22, 2016, see Tr. at 177, the

protective filing date of the application is listed elsewhere in the administrative transcript as

September 29, 2016, see, e.g., Tr. at 57, 73.

4 Plaintiff primarily speaks Spanish, so he testified at the hearing through an

interpreter. See Tr. at 39, 41-42.

On appeal, Plaintiff argues the ALJ: 1) “fail[ed] to properly weigh and

consider the opinions of treating physicians, examining physicians, and non-

examining physicians”5; 2) improperly “relied on the testimony of the [VE] after

posing and relying on a hypothetical question that did not adequately reflect

[Plaintiff’s] limitations”; and 3) erroneously found Plaintiff’s “testimony was not

consistent with the record when the record clearly reveals that [] Plaintiff

suffered from documented impairments causing significant limitations.”

Memorandum in Support of Plaintiff’s Position (Doc. No. 27; “Pl.’s Mem.”), filed

January 8, 2021, at 9, 16, 19. On March 16, 2021, Defendant filed a

Memorandum in Support of the Commissioner’s Decision (Doc. No. 30; “Def.’s

Mem.”) addressing Plaintiff’s arguments.

After a thorough review of the entire record and consideration of the

parties’ respective memoranda, the undersigned finds that the Commissioner’s

final decision is due to be reversed and remanded for reconsideration of the

medical opinions and Plaintiff’s testimony regarding the effects of his

impairments. On remand, this reevaluation may impact the residual

functional capacity (“RFC”) and hypothetical presented to the VE, so these

matters may need to be reevaluated as well.

5 Although the issue is generally framed to include examining physicians, as

explained below, Plaintiff does not specifically challenge the ALJ’s handling of any examining

physicians’ opinions.

II. The ALJ’s Decision

When determining whether an individual is disabled,6 an ALJ must

follow the five-step sequential inquiry set forth in the Code of Federal

Regulations (“Regulations”), determining as appropriate whether the claimant

(1) is currently employed or engaging in substantial gainful activity; (2) has a

severe impairment; (3) has an impairment or combination of impairments that

meets or medically equals one listed in the Regulations; (4) can perform past

relevant work; and (5) retains the ability to perform any work in the national

economy. 20 C.F.R. § 404.1520; see also Simon v. Comm’r, Soc. Sec. Admin., 7

F.4th 1094, 1101-02 (11th Cir. 2021) (citations omitted); Phillips v. Barnhart,

357 F.3d 1232, 1237 (11th Cir. 2004). The claimant bears the burden of

persuasion through step four, and at step five, the burden shifts to the

Commissioner. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987).

Here, the ALJ followed the five-step sequential inquiry. See Tr. at 23-33.

At step one, the ALJ determined Plaintiff “has not engaged in substantial

gainful activity since September 9, 2016, the alleged onset date.” Tr. at 23

(emphasis and citation omitted). At step two, the ALJ found that Plaintiff “has

6 “Disability” is defined in the Social Security Act as the “inability to engage in

any substantial gainful activity by reason of any medically determinable physical or mental

impairment which can be expected to result in death or which has lasted or can be expected

to last for a continuous period of not less than 12 months.” 42 U.S.C. §§ 423(d)(1)(A),

1382c(a)(3)(A).

the following severe impairments: obesity; multiple gunshot wounds to the right

side of the body resulting in right ear Eustachian tube dysfunction with hearing

loss, right mandibular and radius fractures, small fracture of the right

maxillary sinus wall, subluxation of the temporomandibular joint, tinnitus, and

trigeminal neuralgia; diabetes mellitus; peripheral neuropathy; depressive

disorder; posttraumatic stress disorder (PTSD) and anxiety disorder.” Tr. at 23

(emphasis and citation omitted). At step three, the ALJ ascertained that

Plaintiff “does not have an impairment or combination of impairments that

meets or medically equals the severity of one of the listed impairments in 20

[C.F.R.] Part 404, Subpart P, Appendix 1.” Tr. at 24 (emphasis and citation

omitted).

The ALJ determined that Plaintiff has the following RFC:

[Plaintiff can] perform light work as defined in 20

[C.F.R. §] 404.1567(b) except with ability to lift and/or carry 20

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

for 6 hours and sit for 6 hours in an 8-hour workday; could push/pull

as much as can lift/carry; frequent reaching including overhead

reaching with the right upper extremity; could do frequent

kneeling, stooping, crawling, crouching and occasional climbing of

ramps and stairs, but should never climb ladders, ropes or scaffolds.

Environmentally, [Plaintiff] should not be exposed to unprotected

heights, and should not operate a motor vehicle. Mentally,

[Plaintiff] is limited to simple tasks and could make simple work-

related decisions; could interact with co-workers/supervisors

frequently and only occasional interaction with the public.

Tr. at 26 (emphasis omitted).

At step four, the ALJ relied on the testimony of the VE and found that

Plaintiff “is unable to perform any past relevant work” as a “driver, sales route”

and a “dump truck driver.” Tr. at 31 (emphasis and citation omitted). At the

fifth and final step of the sequential inquiry, after considering Plaintiff’s age

(“38 years old . . . on the alleged disability onset date”), education (“at least a

high school education”), work experience, and RFC, the ALJ again relied on the

VE’s testimony and found that “there are jobs that exist in significant numbers

in the national economy that [Plaintiff] can perform,” Tr. at 32 (emphasis and

citation omitted), such as “Router,” “Checker I,” and “Marker,” Tr. at 33. The

ALJ concluded Plaintiff “has not been under a disability . . . from September 9,

2016, through the date of th[e D]ecision.” Tr. at 33 (emphasis and citation

omitted).

III. Standard of Review

This Court reviews the Commissioner’s final decision as to disability

pursuant to 42 U.S.C. § 405(g). Although no deference is given to the ALJ’s

conclusions of law, findings of fact “are conclusive if . . . supported by

‘substantial evidence.’” Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001)

(citing Falge v. Apfel, 150 F.3d 1320, 1322 (11th Cir. 1998)). “Substantial

evidence is something ‘more than a mere scintilla, but less than a

preponderance.’” Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005)

(quoting Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987)). The substantial

evidence standard is met when there is “such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.” Falge, 150 F.3d at 1322

(quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)); see also Biestek v.

Berryhill, 139 S.Ct. 1148, 1154 (2019); Samuels v. Acting Comm’r of Soc. Sec.,

959 F.3d 1042, 1045 (11th Cir. 2020) (citation omitted). It is not for this Court

to reweigh the evidence; rather, the entire record is reviewed to determine

whether “the decision reached is reasonable and supported by substantial

evidence.” Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991) (citation

omitted). The decision reached by the Commissioner must be affirmed if it is

supported by substantial evidence—even if the evidence preponderates against

the Commissioner’s findings. Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155,

1158-59 (11th Cir. 2004) (per curiam).

IV. Discussion

A. Parties’ Arguments

Plaintiff contends first that the ALJ erred in evaluating the medical

opinions of record. Pl.’s Mem. at 9-16. In support, Plaintiff points out that

the ALJ entirely failed to weigh three different medical opinions: Fernando

Gonzales-Portillo, M.D., a treating neurologist, see Tr. at 311-30, 383, 404, 434-

38, 544-52; Luis G. Izquierdo, M.D., a treating physician for hearing loss and

vertigo, see Tr. at 372-78; and Manuel Lugo, P.A., a physician’s assistant

treating Plaintiff for facial paralysis and weakness of the right side of the body,

Tr. at 380-82, 401-03, 431-33. Pl.’s Mem. at 9-15.7 Plaintiff further contends

the ALJ assigned “partial weight” to the opinion of Joseph Chiaro, M.D., a non-

examining state agency physician, see Tr. at 82-85, based on erroneous reasons.

Pl.’s Mem. at 16.

Responding to the arguments about the medical opinions, Defendant

concedes the ALJ failed to “specifically weigh the opinions” of Dr. Gonzales-

Portillo and Dr. Izquierdo. Def.’s Mem. at 10. Defendant does not address

Plaintiff’s contention about Mr. Lugo’s opinion. See id. But, Defendant

concedes yet another opinion was not addressed by the ALJ: that of Jerry David

Ramos, M.D., a treating primary care physician, see Tr. at 295-305. Def.’s

Mem. at 10. Nonetheless, Defendant argues the ALJ’s “RFC determination for

light work is generally supported by objective findings of record.” Id. (citation

omitted).

Second, Plaintiff contends the ALJ erred in posing a hypothetical to the

VE that did not adequately reflect his limitations. Pl.’s Mem. at 16-19. But,

Plaintiff’s argument in this regard is entirely premised on his arguments

regarding the medical opinions. See id. at 18-19.

Third, Plaintiff asserts the ALJ improperly rejected his testimony “when

the record clearly reveals that [] Plaintiff suffered from documented

7 Plaintiff characterizes Mr. Lugo as a “Dr.” but medical records reflect he is a

“PA.”

impairments causing significant limitations.” Id. at 19. In making this

assertion, Plaintiff contends the ALJ offered no more than “boiler plate type

language commonly found in Social Security decisions.” Id. at 20 (citation

omitted). Responding, Defendant argues that the ALJ considered and

evaluated the appropriate factors. Def.’s Mem. at 12-13.

B. Applicable Law

1. Medical Opinions8

“Medical opinions are statements from [physicians or other] acceptable

medical sources that reflect judgments about the nature and severity of [a

claimant’s] impairment(s), including [the claimant’s] symptoms, diagnosis and

prognosis, what [the claimant] can still do despite impairment(s), and [the

claimant’s] physical or mental restrictions.” 20 C.F.R. § 404.1527(a)(1).

Acceptable medical sources include licensed physicians, licensed psychologists,

8 On January 18, 2017, the SSA revised the Rules regarding the evaluation of

medical evidence and symptoms for claims filed on or after March 27, 2017. See Revisions to

Rules Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 5,844, 5,844 (January 18,

2017); see also 82 Fed. Reg. 15,132 (Mar. 27, 2017) (amending and correcting the final Rules

published at 82 Fed. Reg. 5,844). Because Plaintiff filed his claim before that date, the

undersigned cites the Rules and Regulations that are applicable to the date the claim was

filed.

licensed optometrists, licensed podiatrists, and qualified speech-language

pathologists. 20 C.F.R. § 404.1502(a).9

The Regulations establish a hierarchy among medical opinions that

provides a framework for determining the weight afforded each medical

opinion. See 20 C.F.R. § 404.1527. Essentially, “the opinions of a treating

physician are entitled to more weight than those of a consulting or evaluating

health professional,” and “[m]ore weight is given to the medical opinion of a

source who examined the claimant than one who has not.” Schink v. Comm’r of

Soc. Sec., 935 F.3d 1245, 1259, 1260 n.5 (11th Cir. 2019). Further, “[n]on-

examining physicians’ opinions are entitled to little weight when they

contradict opinions of examining physicians and do not alone constitute

substantial evidence.” Id. at 1260 (citing Sharfarz v. Bowen, 825 F.2d 278, 280

(11th Cir. 1987) (per curiam)). The following factors are relevant in determining

the weight to be given to a physician’s opinion: (1) the “[l]ength of the treatment

relationship and the frequency of examination”; (2) the “[n]ature and extent of

[any] treatment relationship”; (3) “[s]upportability”; (4) “[c]onsistency” with

other medical evidence in the record; and (5) “[s]pecialization.” 20 C.F.R.

§ 404.1527(c)(2)-(5); see also 20 C.F.R. § 404.1527(f); Walker v. Soc. Sec. Admin.,

9 For claims filed on or after March 27, 2017, acceptable medical sources also

include licensed audiologists, licensed Advanced Practice Registered Nurses, and licensed

Physician Assistants. 20 C.F.R. § 404.1502(a)(6)-(8).

Comm’r, 987 F.3d 1333, 1338 (11th Cir. 2021) (citation omitted); McNamee v.

Soc. Sec. Admin., 164 F. App’x 919, 923 (11th Cir. 2006) (citation omitted)

(stating that “[g]enerally, the opinions of examining physicians are given more

weight than those of non-examining physicians[;] treating physicians[’

opinions] are given more weight than [non-treating physicians;] and the

opinions of specialists are given more weight on issues within the area of

expertise than those of non-specialists”).

With regard to a treating physician,10 the Regulations instruct ALJs how

to properly weigh such a medical opinion. See 20 C.F.R. § 404.1527(c)(2).

Because treating physicians “are likely to be the medical professionals most

able to provide a detailed, longitudinal picture of [a claimant’s] medical

impairment(s),” a treating physician’s medical opinion is to be afforded

controlling weight if it is “well-supported by medically acceptable clinical and

laboratory diagnostic techniques and is not inconsistent with the other

substantial evidence” in the record. Id. When a treating physician’s medical

opinion is not due controlling weight, the ALJ must determine the appropriate

weight it should be given by considering the factors identified above (the length

10 A treating physician is a physician who provides medical treatment or

evaluation to the claimant and who has, or has had, an ongoing treatment relationship with

the claimant, as established by medical evidence showing that the claimant sees or has seen

the physician with a frequency consistent with accepted medical practice for the type of

treatment and/or evaluation required for the medical condition. See 20 C.F.R.

§ 404.1527(a)(2).

of treatment, the frequency of examination, the nature and extent of the

treatment relationship, as well as the supportability of the opinion, its

consistency with the other evidence, and the specialization of the physician). Id.

If an ALJ concludes the medical opinion of a treating physician should be

given less than substantial or considerable weight, he or she must clearly

articulate reasons showing “good cause” for discounting it. Simon, 7 F.4th at

1104 (citation omitted); Walker, 987 F.3d at 1338 (citation omitted); Schink, 935

F.3d at 1259; Hargress v. Soc. Sec. Admin., Comm’r, 883 F.3d 1302, 1305 (11th

Cir. 2018) (citation omitted); Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir.

1997). Good cause exists when (1) the opinion is not bolstered by the evidence;

(2) the evidence supports a contrary finding; or (3) the opinion is conclusory or

inconsistent with the treating physician’s own medical records. Walker, 987

F.3d at 1338; Schink, 935 F.3d at 1259; Hargress, 883 F.3d at 1305; Phillips,

357 F.3d at 1240-41; see also Edwards v. Sullivan, 937 F.2d 580, 583-84 (11th

Cir. 1991); Schnorr v. Bowen, 816 F.2d 578, 582 (11th Cir. 1987) (stating that a

treating physician’s medical opinion may be discounted when it is not

accompanied by objective medical evidence).

An ALJ is required to consider every medical opinion. See 20 C.F.R.

§ 404.1527(c) (stating that “[r]egardless of its source, we will evaluate every

medical opinion we receive”). While “the ALJ is free to reject the opinion of any

physician when the evidence supports a contrary conclusion,” Oldham v.

Schweiker, 660 F.2d 1078, 1084 (5th Cir. 1981) (citation omitted); see also 20

C.F.R. § 404.1527(c)(2), “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) (citing Sharfarz, 825 F.2d at

279); Moore v. Barnhart, 405 F.3d 1208, 1212 (11th Cir. 2005); Lewis, 125 F.3d

at 1440. “It is the responsibility of the agency, not the reviewing court, to

supply the justification for its decision and to sufficiently explain the weight it

has given to obviously probative exhibits.” Simon, 7 F.4h at 1105 (quotation

and citations omitted).

Opinions from sources “who are not technically deemed ‘acceptable

medical sources’ . . . are important and should be evaluated on key issues such

as impairment severity and functional effects, along with the other relevant

evidence in the file.” SSR 06-03p, 2006 WL 2329939, at *3. 11 The ALJ

“generally should explain the weight given to opinions from these sources or

otherwise ensure that the discussion of the evidence in the determination or

decision allows [the] claimant or subsequent reviewer to follow the [ALJ’s]

11 SSR 06-03p was rescinded on March 27, 2017, but this rescission applies only

to claims filed on or after March 27, 2017. SSR 96-2P, 2017 WL 3928305, *1 (stating the

“rescission will be effective for claims filed on or after March 27, 2017”); Rescission of Social

Security Rulings 96-2p, 96-5p, and 06-3p, 82 Fed. Reg. 15,263-01, 15,263 (Mar. 27, 2017)

(same). SSR 06-03p therefore applies to Plaintiff’s claim.

reasoning, when such opinions may have an effect on the outcome of the case.”

Id. at *6; 20 C.F.R. § 404.1527(f)(2).

2. Testimony Regarding Effects of Pain and Other Symptoms

“[T]o establish a disability based on testimony of pain and other

symptoms, the claimant must satisfy two parts of a three-part showing:

(1) evidence of an underlying medical condition; and (2) either (a) objective

medical evidence confirming the severity of the alleged pain; or (b) that the

objectively determined medical condition can reasonably be expected to give rise

to the claimed pain.” Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002)

(citing Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991)). “The claimant’s

subjective testimony supported by medical evidence that satisfies the standard

is itself sufficient to support a finding of disability.” Holt, 921 F.2d at 1223.

“When evaluating the claimant’s subjective symptoms, the ALJ must

consider such things as: (1) the claimant’s daily activities; (2) the nature,

location, onset, duration, frequency, radiation, and intensity of pain and other

symptoms; (3) precipitating and aggravating factors; (4) adverse side-effects of

medications; and (5) treatment or measures taken by the claimant for relief of

symptoms.” Davis v. Astrue, 287 F. App’x 748, 760 (11th Cir. 2008) (citing 20

C.F.R. § 404.1529(c)(3)(i)-(vi)). To reject the claimant’s assertions of subjective

symptoms, “explicit and adequate reasons” must be articulated by the ALJ.

Wilson, 284 F.3d at 1225; see also Dyer, 395 F.3d at 1210; Marbury v. Sullivan,

957 F.2d 837, 839 (11th Cir. 1992).

In 2017, the SSA issued new guidance to ALJs about how to evaluate

subjective complaints of pain and other symptoms. The SSA has “eliminat[ed]

the use of the term ‘credibility’ from [its] sub-regulatory policy, as [the

R]egulations do not use this term.” SSR 16-3P, 2017 WL 5180304, at *2 (Oct.

25, 2017). “In doing so, [the SSA has] clarif[ied] that subjective symptom

evaluation is not an examination of an individual’s character.” Id. Accordingly,

ALJs are “instruct[ed] . . . to consider all of the evidence in an individual’s record

when they evaluate the intensity and persistence of symptoms after they find

that the individual has a medically determinable impairment(s) that could

reasonably be expected to produce those symptoms.” Id. “The change in wording

is meant to clarify that [ALJs] aren’t in the business of impeaching claimants’

character; obviously [ALJs] will continue to assess the credibility of pain

assertions by applicants, especially as such assertions often cannot be either

credited or rejected on the basis of medical evidence.” Cole v. Colvin, 831 F.3d

411, 412 (7th Cir. 2016) (emphasis in original).

3. RFC and Hypothetical to a VE

An ALJ poses a hypothetical question to a VE as part of the step-five

determination of whether the claimant can obtain work in the national

economy. See Wilson v. Barnhart, 284 F.3d 1219, 1227 (11th Cir. 2002). When

the ALJ relies on the testimony of a VE, “the key inquiry shifts” from the RFC

assessment in the ALJ’s written decision to the adequacy of the RFC description

contained in the hypothetical posed to the VE. Brunson v. Astrue, 850 F. Supp.

2d 1293, 1303 (M.D. Fla. 2011) (quoting Corbitt v. Astrue, No. 3:07-cv-518-HTS,

2008 WL 1776574, at *3 (M.D. Fla. Apr. 17, 2008) (unpublished)).

In determining an individual’s RFC and later posing a hypothetical to a

VE that includes the RFC, the ALJ “must consider limitations and restrictions

imposed by all of an individual’s impairments, even those that are not ‘severe.’”

SSR 96-8P, 1996 WL 374184, at *5; see also 20 C.F.R. § 404.1545(a)(2); Swindle

v. Sullivan, 914 F.2d 222, 226 (11th Cir. 1990) (stating “the ALJ must consider

a claimant’s impairments in combination” (citing 20 C.F.R. § 404.1545; Reeves

v. Heckler, 734 F.2d 519, 525 (11th Cir. 1984))). “In order for a [VE]’s testimony

to constitute substantial evidence, the ALJ must pose a hypothetical question

which comprises all of the claimant’s impairments.” Wilson, 284 F.3d at 1227

(citing Jones v. Apfel, 190 F.3d 1224, 1229 (11th Cir. 1999)).

C. Analysis

With respect to the medical opinions of record, the ALJ did generally

summarize the medical evidence, including some of the notes from the medical

sources at issue. See Tr. at 27-28. But, when addressing “opinion evidence,”

Tr. at 29, the ALJ failed to assign weight to three treating physicians’ opinions

(Dr. Fernando Gonzales-Portillo, Dr. Izquierdo, and Dr. Ramos) and a treating

physician’s assistant (Mr. Lugo). This error necessitates remand. See, e.g.,

Winschel, 631 F.3d at 1179 (citation omitted) (stating that “the ALJ must state

with particularity the weight given to different medical opinions and the

reasons therefor”); Simon, 7 F.4th at 1105 (“It is the responsibility of the agency,

not the reviewing court, to supply the justification for its decision and to

sufficiently explain the weight it has given to obviously probative exhibits.”).

Moreover, in assigning “some weight” to Dr. Chiaro’s opinion, the ALJ

recognized that as a non-examining state-agency opinion, it “does not as a

general matter deserve as much weight as those of examining or treating

physicians,” Tr. at 30, but it is difficult to determine whether the ALJ actually

applied that rule because she did not assign weight to any of the treating

physicians’ opinions. Also, the ALJ relied to a degree on Plaintiff “barely

mention[ing] the right arm at the hearing” as support for rejecting Dr. Chiaro’s

limitation of “occasional use of the right arm,” Tr. at 30, but Plaintiff’s testimony

about his right arm actually supported such a limitation. At the hearing,

Plaintiff was asked, “what physical problems do you have that you feel would

prevent you from working?” Tr. at 50. Plaintiff responded in part to that

question by asserting, “From the 10 [gun]shots that I received, my right arm

doesn’t function the same. I don’t have the same agility. I don’t have the

same strength in my right arm.” Tr. at 50. The ALJ on remand shall also

reconsider Dr. Chiaro’s opinion.

As to Plaintiff’s testimony, the ALJ found that Plaintiff’s “medically

determinable impairments could reasonably be expected to cause the alleged

symptoms,” but that Plaintiff’s “statements concerning the intensity,

persistence, and limiting effects of these symptoms are not entirely consistent

with the medical evidence and other evidence of record.” Tr. at 26. The ALJ

summarized Plaintiff’s testimony and, contrary to Plaintiff’s contention, the

Decision reflects consideration of at least some of the relevant factors. See Tr.

at 30-31 (finding, e.g., that Plaintiff “testified to a relatively wide range of

activities of daily living”). However, in light of the ALJ needing to reevaluate

the medical evidence, “the ALJ will need to reassess [Plaintiff’s] testimony as

well” on remand. Simon, 7 F.4th at 1109. “If, after giving each medical

opinion in the record appropriate weight, the ALJ is still inclined to disbelieve

[Plaintiff’s] statements as to the severity of his symptoms, then the ALJ must

support that finding by identifying some specific portion of the record

undermining” the testimony. Id. at 1109-10.

Finally, in light of the other instructions on remand, it may be necessary

for the ALJ to reevaluate the RFC and hypothetical to the VE.

V. Conclusion

Based on the foregoing, it is

ORDERED:

1. The Clerk of Court is directed to enter judgment pursuant to

sentence four of 42 U.S.C. § 405(g), REVERSING the Commissioner’s final

decision and REMANDING this matter with the following instructions:

(A) Reevaluate the medical opinions; specify the weight assigned

to each opinion; and articulate the reasons for the weight

given to them;

(B) Reevaluate Plaintiff’s subjective complaints, and if the

complaints are rejected, identify a specific portion of the

record undermining the complaints;

(C) If appropriate, reevaluate the RFC and hypothetical to the

VE; and

(D) Take such other action as may be necessary to resolve this

matter properly.

2. The Clerk is further directed to close the file.

3. In the event benefits are awarded on remand, Plaintiffs counsel

shall ensure that any § 406(b) fee application be filed within the parameters set

forth by the Order entered in Case No. 6:12-mc-124-Orl-22 (In Re: Procedures

for Applying for Attorney’s Fees Under 42 U.S.C. §§ 406(b) and 1383(d)(2)).

DONE AND ORDERED in Jacksonville, Florida on September 8, 2021.

Jom Ke

JAMES R. KLINDT

United States Magistrate Judge

kaw

Copies to:

Counsel of Record

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