Ortiz v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

SONIA GONZALEZ ORTIZ,

Plaintiff,

v. Case No. 8:20-cv-0864-T-MAP

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

______________________________________/

ORDER

This is an appeal of the administrative denial of supplemental security income (SSI).1

See 42 U.S.C. § 1383(c)(3). Plaintiff contends that the Administrative Law Judge (ALJ)

improperly discounted Plaintiff’s mental health treatment records, including the notes of her

treating psychiatrist Lendita Haxhiu-Erhardt, M.D., and failed to consider Plaintiff’s

borderline age situation. After considering Plaintiff’s arguments, Defendant’s response, and

the administrative record (docs. 19, 25), I find the ALJ did not apply the proper standards. I

reverse the ALJ’s decision.

A. Background

Plaintiff Sonia Gonzalez Ortiz was born on May 8, 1965, and was 50 years old on her

alleged disability onset date of July 16, 2015. (R. 1084) Plaintiff dropped out of school in the

eleventh grade and has past relevant work as a hotel housekeeper. (R. 1121) As of December

20, 2019 (the date of her most recent administrative hearing), Plaintiff was living in Cleveland,

Ohio with her adult son. (R. 1120) She has two children and two grandchildren. Plaintiff

1 The parties have consented to my jurisdiction. See 28 U.S.C. § 636(c).

alleges disability due to anemia, acid reflux, depression, anxiety, sleep apnea, precancerous

changes to the vagina, “mild cropatonal right hand,” and carcinoma of the vagina. (R. 217)

On November 15, 2017, after a hearing at which Plaintiff and a vocational expert (VE)

testified, the ALJ issued a decision that Plaintiff is not disabled. (R. 11-28, 35-59) The Appeals

Council (AC) denied review, and Plaintiff appealed to the Northern District of Ohio. In a

June 11, 2019 decision (R. 1236-68), United States Magistrate Judge Jonathan Greenberg

found “the ALJ failed to properly evaluate Dr. Haxhiu-Erhardt’s December 2016 opinion”

because the ALJ’s reasons for discounting it were not supported by substantial evidence. (R.

1263) Instead, according to Judge Greenberg, the ALJ “selectively parsed through” the

medical evidence when discounting the opinion. (R. 1265) “Indeed, the ALJ does not

sufficiently explain how … referencing several normal examination findings supports

affording long-time treating physician Dr. Haxhiu-Erhardt’s opinion ‘partial weight.’” (Id.)

Judge Greenberg reversed the Commissioner’s decision and remanded Plaintiff’s case.

The AC vacated the Commissioner’s decision and remanded the case to the same ALJ

for further administrative proceedings. And because Plaintiff had filed a subsequent claim for

Title XVI benefits on June 15, 2018, the AC consolidated Plaintiff’s claims.2 (R. 1065) The

same ALJ held another hearing at which Plaintiff appeared and testified. (R. 1114-41)

Following the hearing, the ALJ found that Plaintiff suffers from the severe impairments of

obesity, hypertension, anemia, carpal tunnel syndrome of the right wrist, patellofemoral stress

syndrome of the right knee, somatoform disorders, major depressive disorder, anxiety

2 Plaintiff had previously filed applications for SSI and DIB in July 2012. An ALJ denied

those claims in February 2014. (See R. 63-73, 1065-66)

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disorder, and borderline intellectual functioning. (R. 1068) Aided by the testimony of a VE,

the ALJ again determined Plaintiff is not disabled, despite these impairments, as she retains

the residual functional capacity (RFC) to perform light work with these limitations:

[E]xcept the claimant can lift and/or carry 20 pounds occasionally and 10

pounds frequently. The claimant can stand and/or walk for six hours in an

eight-hour workday and sit for six hours in an eight-hour workday. The

claimant can only push and pull with the right lower extremity. The claimant

can frequently operate foot controls with the right foot. The claimant can

frequently operate hand controls with the right hand. The claimant can only

frequently handle and finger with the right hand. The claimant can only

occasionally climb ramps and stairs, never ladders, ropes, or scaffolds, and only

occasionally balance, stoop, kneel, crouch, and crawl. The claimant can never

work at unprotected heights. The claimant is limited to only simple, routine

and repetitive tasks with no strict production rate pace requirements with only

occasional interactions with supervisors, co-workers and the public, and only

routine workplace changes.

(R. 1073) The ALJ found that, with this RFC, Plaintiff could perform her past relevant work

as a hotel housekeeper and could also work as a cafeteria attendant, an inspector and hand

packager, and a routing clerk. (R. 1085) Plaintiff (who by that time had moved to Florida)

again appealed the ALJ’s decision denying benefits, and the AC denied review. Her

administrative remedies exhausted, Plaintiff filed this action (Doc. 1).

B. Standard of Review

To be entitled to SSI, a claimant must be unable 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.” See 42 U.S.C. § 1382c(a)(3)(A). A “‘physical or mental

impairment’ is an impairment that results from anatomical, physiological, or psychological

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abnormalities which are demonstrable by medically acceptable clinical and laboratory

diagnostic techniques.” See 42 U.S.C. § 1382c(a)(3)(D).

The Social Security Administration, to regularize the adjudicative process,

promulgated detailed regulations currently in effect. These regulations establish a “sequential

evaluation process” to determine whether a claimant is disabled. See 20 C.F.R. § 416.920. If

an individual is found disabled at any point in the sequential review, further inquiry is

unnecessary. 20 C.F.R. § 416.920(a)(4). Under this process, the Commissioner must

determine, in sequence: (1) whether the claimant is engaged in substantial gainful activity; (2)

whether the claimant has a severe impairment(s) (i.e., one that significantly limits her ability

to perform work-related functions); (3) whether the severe impairment meets or equals the

medical criteria of Appendix 1, 20 C.F.R. Part 404, Subpart P; (4) considering the

Commissioner’s determination of claimant’s RFC, whether the claimant can perform her past

relevant work; and (5) if the claimant cannot perform the tasks required of her prior work, the

ALJ must decide if the claimant can do other work in the national economy in view of her

RFC, age, education, and work experience. 20 C.F.R. § 416.920(a)(4). A claimant is entitled

to benefits only if unable to perform other work. See Bowen v. Yuckert, 482 U.S. 137, 142

(1987); 20 C.F.R. § 416.920(f), (g).

In reviewing the ALJ’s findings, this Court must ask if substantial evidence supports

those findings. See 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 390 (1971). The

ALJ’s factual findings are conclusive if “substantial evidence consisting of relevant evidence

as a reasonable person would accept as adequate to support a conclusion exists.” Keeton v.

Dep’t of Health and Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994) (citation and quotations

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omitted). The Court may not reweigh the evidence or substitute its own judgment for that of

the ALJ even if it finds the evidence preponderates against the ALJ’s decision. See Bloodsworth

v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). The Commissioner’s “failure to apply the

correct law or to provide the reviewing court with sufficient reasoning for determining the

proper legal analysis has been conducted mandates reversal.” Keeton, 21 F.3d at 1066

(citations omitted).

C. Discussion

1. ALJ’s consideration of Plaintiff’s mental health treatment

Plaintiff argues that the ALJ erred by: failing to state the weight he assigned to Janis

Woodworth, Ph.D.’s September 17, 2018 consultative psychological evaluation, assigning

only “partial weight” Mitchell Wax, Ph.D.’s October 21, 2015 consultative psychological

evaluation, and not articulating good cause for discounting treating psychiatrist Dr. Haxhiu-

Erhardt’s opinions. I start with a discussion of the ALJ’s weighing of Dr. Haxhiu-Erhardt’s

opinions, because it is not supported by substantial evidence and requires remand.

a. Dr. Haxhiu-Erhardt’s opinions

This case came before the ALJ on remand from the AC based on the district court’s

finding that the ALJ “fail[ed] to set forth good reasons for discounting the December 2016

opinion of Dr. Haxhiu-Erhardt.” (R. 1267) On remand, the ALJ made the same RFC finding

as before – that Plaintiff retained the RFC for light work with (the same) limitations. (R. 18,

1072-73) But Plaintiff asserts that, despite the district court and the AC’s remand instruction,

the ALJ again erred by failing to properly consider Dr. Haxhiu-Erhardt’s opinions.

Specifically, Plaintiff admonishes the ALJ for finding Dr. Haxhiu-Erhardt’s opinions only

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partially consistent with the medical evidence of record based on the same faulty rationale

(doc. 25 at 36-46).

In assessing whether a claimant can—despite any physical or mental impairments—

obtain and perform any work that exists in substantial numbers in the national economy, the

ALJ must give special attention to the opinions of a claimant’s treating physician. Simon v.

Comm’r of Soc. Sec., 7 F.4th 1094 (11th Cir. Aug. 12, 2021). The SSA regulations applicable

when Plaintiff filed her application required an ALJ to give “controlling weight” to a treating

physician’s opinions if they were “well-supported by medically acceptable clinical and

laboratory diagnostic techniques” and “not inconsistent with other substantial evidence in

[the] case record.”3 Id. (quoting 20 C.F.R. § 404.1527(c)(2)). Eleventh Circuit case law

dictates that a treating physician’s opinion must be given substantial or considerable weight

unless good cause is shown to the contrary. Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir.

1997).4 Good cause for disregarding such opinions “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, 1241 (11th Cir. 2004) (citation omitted).

3 Although the Commissioner revised the rules regarding evaluating medical evidence on

January 18, 2017, the revisions became effective March 27, 2017, and they only apply to

applications filed on or after that date. See 20 C.F.R. § 416.920c. Because Plaintiff filed her

claim for benefits before March 27, 2017, the rules in § 416.927 govern.

4 Medical opinions are “statements from physicians and psychologists or other acceptable

medical sources that reflect judgments about the nature and severity of [the 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.” Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178-79 (11th Cir. 2011) (quoting

20 C.F.R. § 404.1527(a)(2)).

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While an ALJ may reject a treating physician’s findings when there is good cause, “he

must clearly articulate [the] reasons for doing so.” Simon, 7 F.4th at 1104 (quoting Winschel,

631 F.3d at 1179). As the Simon court explained:

If the ALJ fails to state reasonable grounds for discounting such evidence, we

will not affirm “simply because some rationale might have supported the ALJ’s

conclusion.” (citation omitted). It is the responsibility of the [SSA], not the

reviewing court, to supply the justification for its decision and to sufficiently

explain “the weight [it] has given to obviously probative exhibits.” (citation

omitted).

Simon, 7 F.4th at 1105. In Simon, the Eleventh Circuit reversed the district court’s decision,

finding the ALJ failed to state good cause to discount the opinions of the claimant’s treating

psychiatrist. The ALJ in this case likewise erred.

As in Simon, the administrative record here contains extensive treatment notes from

Plaintiff’s psychiatrist, Dr. Haxhiu-Erhardt, beginning in 2012 (three years before the alleged

onset date) and continuing through the date of the ALJ’s most recent administrative hearing

(December 2019). Dr. Haxhiu-Erhardt diagnosed Plaintiff with major depressive disorder

with psychotic features, and throughout her lengthy treatment she described Plaintiff’s severe

symptoms of mental illness such as paranoia, auditory hallucinations, significant

forgetfulness, depression, anxiety, and intolerance of other people.

On December 22, 2016, Dr. Haxhiu-Erhardt treated Plaintiff and observed she

“[c]ontinues to have significant issues with forgetfulness” and “cannot remember simple

details.” (R. 2870) Family members had told Plaintiff she was so forgetful she could not cook

a meal. (Id.) The psychiatrist indicated Plaintiff was paranoid and “hears her name being

called all day long.” (Id.) That same day, Dr. Haxhiu-Erhardt filled out a mental impairment

questionnaire on Plaintiff’s behalf. (R. 2968-69) She noted her long treatment relationship

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with Plaintiff and that Plaintiff was depressed, anxious, forgetful, confused, intolerant of

others, and hearing voices. When asked if Plaintiff’s mental impairments would last at least

12 months, she circled “Yes” and wrote “it has been six years.” (R. 2968)

Dr. Haxhiu-Erhardt found that Plaintiff has no useful ability to function in these areas:

maintaining attention and concentration for extended periods; working in coordination with

or in proximity to others without distraction; completing a normal workday and workweek

without interruptions from psychologically based symptoms; remembering locations and

work-like procedures; understanding and remembering detailed instructions; getting along

with co-workers or peers without districting them or exhibiting behavioral extremes; and

responding appropriately to changes in the work setting. 5 (R. 2968-69) Next, according to

the psychiatrist, Plaintiff could not meet competitive standards in these areas: carrying out

detailed instructions; performing activities within a schedule; sustaining an ordinary routine

without special supervision; performing at a consistent pace without an unreasonable number

and length of rest periods; understanding and remembering very short and simple instructions;

asking simple questions or requesting assistance; accepting instructions and responding

appropriately to criticism from supervisors; being aware of normal hazards and taking

precautions; and setting realistic goals or making plans independently of others. (Id.)

And, according to Dr. Haxhiu-Erhardt, Plaintiff was seriously limited but not

precluded from: carrying out very short and simple instructions; managing regular attendance

and being punctual within customary tolerances; interacting appropriately with the general

5 The form defines an “extreme limitation” as “no useful ability to function” and defines a

“marked limitation” as “two thirds of an eight-hour workday.” (R. 2968)

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public; and maintaining socially appropriate behavior and adhering to basic standards of

neatness and cleanliness. (Id.) The psychiatrist opined Plaintiff would miss three or more

days of work each month and would be off-task 50 to 75 percent of the workday (these answers

were “just a guess”). (R. 2969)

Besides her regular treatment notes, Dr. Haxhiu-Erhardt also wrote an April 2017

letter stating that Plaintiff suffers from depression with psychotic features, pernicious anemia

with end organ complications, hypertension, and sleep apnea. (R. 3104) She opined that “the

most work prohibitive symptom has been progressive amnesia with dissociation.” (Id.)

Plaintiff’s concentration was severely impaired, and she suffered from low energy and

concentration. (Id.)

Next, on September 24, 2018 – between the ALJ’s first and second decisions – Dr.

Haxhiu-Erhardt completed another mental impairment questionnaire. (R. 2562-63) She

indicated she had treated Plaintiff monthly for at least three years. After confirming Plaintiff’s

diagnosis of major depressive disorder with psychotic features, Dr. Haxhiu-Erhardt reported

that Plaintiff had panic attacks, agoraphobia, confusion, paranoia, difficulty concentrating,

fibro fog, short term memory problems, and sadness. (Id.) Compared to her answers in

December 2016, Haxhiu-Erhardt checked boxes corresponding to slightly different work-

related limitations. Plaintiff had no useful ability to complete a normal workday, work at a

consistent pace, or understand and remember detailed instructions. (Id.) She could not meet

competitive standards in carrying out detailed instructions, maintaining attention and

concentration, working in coordination with others, remembering locations and work-like

procedures, and accepting instructions from supervisors. (Id.) And she was seriously limited

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but not precluded from performing activities on a schedule, managing regular attendance,

sustaining a routine, understanding and remembering very short and simple instructions,

asking simple questions, and getting along with co-workers. (Id.) She estimated Plaintiff

would be off task two to three hours in an eight-hour workday (rather than 50 to 75 percent

of the time, like she had postulated in December 2016).

Dr. Haxhiu-Erhardt completed her final mental status questionnaire on November 18,

2018. (R. 3615-19) She noted that at Plaintiff’s last appointment she was neatly groomed but

tired, anxious, depressed, and irritable. (R. 3615) She had panic attacks and paranoia, was

apathetic and lacked motivation, and had a very poor memory. Her “baseline is suspicious/

does not feel comfortable with other people around.” (R. 3616) Dr. Haxhiu-Erhardt reported

that Plaintiff’s pernicious anemia and severe B12 deficiency caused lethargy and fatigue. (Id.)

Dr. Haxhiu-Erhardt’s September and November 2018 questionnaires post-date the

ALJ’s first decision, but they were in the administrative record for the ALJ’s second decision.

From his first to his second decision, the ALJ’s reasons for discounting Dr. Haxhiu-Erhardt’s

opinions are very similar. In his first decision, after summarizing the psychiatrist’s December

2016 questionnaire, the ALJ wrote:

I note the treating relationship duration and that Dr. Haxhiu-Erhardt is a treating

source specializing in psychiatry (Ex. B7F/1). I find that Dr. Haxhiu-Erhardt’s

opinion regarding serious limitations is consistent with examinations that showed

the claimant had ongoing depressed, sad, and anxious mood, and at times,

impaired attention and concentration, distractibility, and difficulty with memory

(Ex. B6F/3, 14, 25, 36, 43, 63, B8F/3, 10, 60, 82, 90, 123, B9F/19, 43). However,

I find that this opinion regarding a degree of no useful ability or unable to meet

competitive standards is inconsistent with examinations that demonstrated the

claimant was routinely well groomed with good hygiene, cooperative, normal

speech, logical and organized thought process, sustained attention and

concentration, normal memory, fair judgment and insight, and adequate fund of

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knowledge support these opinions (Ex. B1F/159, B6F/3, 14, 25, 36, 63, B8F/3,

10, 60, 82, 90, 123, B9F/19, 43). In addition, I find that the degrees of limitation

are not supported by the record that showed the claimant’s ability to engage in

daily activities, such as managing her personal care, performing household tasks,

interacting with family on a daily basis, and leaving the country for vacation (Ex.

B6E/5, B2F/2-4, B8F/9, B9F/33). Further, Dr. Haxhiu-Erhardt did not provide

support or explanation, and in particular, indicated that her opinion regarding “off

task” was just a guess. Therefore, I give partial weight to this opinion.

(R. 24). In his second decision, attempting to satisfy the district court’s remand instruction

“to sufficiently address the limitations assessed by Dr. Haxhiu-Erhardt,” the ALJ mentioned

the psychiatrist’s September and November 2018 opinions at the end of his paragraph

summarizing her December 2016 questionnaire, he reworded and restructured some of his

discussion of the functional limitations identified by Dr. Haxhiu-Erhardt, and he added one

and one-half additional paragraphs.

The ALJ’s new paragraph juxtaposes Dr. Haxhiu-Erhardt’s estimate that Plaintiff

would spend 50 to 75 percent or two to three hours of a workday off-task, with Plaintiff’s

testimony she microwaves her own meals, bathes twice a week, does laundry every two

weeks, sweeps and cleans the bathroom once a week, and sometimes watches her

grandchildren. (R. 1081) Also, the ALJ repurposed the paragraph from his first decision

regarding the psychiatrist’s December 2016 opinion. The ALJ’s second decision states:

I note the treating relationship and duration; however, I give Dr. Haxhiu-

Erhardt’s opinions limited weight because limitations ranging from unable to

meet competitive standards to no useful ability to function and the excessive

degree of off task is inconsistent with the record and does not support this

degree of functioning. The claimant routinely presented on examination as

well groomed with good hygiene, cooperative, normal speech, logical and

organized thought process, sustained attention and concentration, normal

memory, fair judgment and insight, and adequate fund of knowledge. Her

ability to routinely present in this manner despite her symptoms does not

support 50 to 75 percent or two to three hours off task, inability to meet

competitive standards, or no useful ability to function (Ex. B1F/159, B6F/3,

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14, 25, 36, 63, B8F/3, 10, 60, 82, 90, 123, B9F/19, 43). Further, examinations

conducted by Dr. Haxhiu-Erhardt do not support the opined degree of

limitations. For example, during an examination in August 2018, the claimant

presented with anxious mood and constricted affect but was well groomed,

cooperative, oriented and showed normal speech, logical and organized

thought content, no evidence of paranoia, delusions, or perceptual disturbance,

sustained attention and concentration, recent and remote memory within

normal limits, and fair judgment and insight (Ex. B31F/5).

(R. 1081) Then, the ALJ repeats the same verbiage about Plaintiff’s “well-groomed”

appearance when discussing Dr. Haxhiu-Erhardt’s April 2017 letter: “the claimant presented

as well groomed, cooperative, and oriented with normal speech, logical and organized

thought process, no evidence of perceptual disturbance, sustained attention and

concentration, memory within normal limits, fair to good insight and judgment, and

described as a good historian despite issues with mood, anxiety, and some instances of

paranoid thoughts.” (R. 1082) Based on these observations, the ALJ concluded that Dr.

Haxhiu-Erhardt’s opinions are inconsistent with the doctor’s own records and with “other

examinations,” and he discounted them. (R. 1081-82)

Upon review of Dr. Haxhiu-Erhardt’s extensive treatment notes, however, I cannot

find substantial evidence to support the ALJ’s conclusion. The ALJ addressed Plaintiff’s

behavior and demeanor at a handful of appointments, but neglected to address in any detail

her panic disorder, auditory hallucinations, significant issues with forgetfulness, anxiety,

confusion, inability to concentrate, sadness, irritable mood, lethargy, apathy, and increased

crying. These significant symptoms are not only noted by Dr. Hazhiu-Erhardt, but also by

Nellie Krawczynski, a therapist who worked with Dr. Haxhiu-Erhardt in treating Plaintiff.

For example, the ALJ cites to Exhibit B6F, page 25 as evidence of Plaintiff’s normal

mental status examinations. (R. 1081-82) This is Ms. Krawczynski’s record of an October

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2016 therapy appointment with Plaintiff where she relayed she had experienced a panic attack

the night before and could not board a plane to Puerto Rico to visit family that day because

of a paralyzing fear of impending doom. (R. 787) The ALJ also cites to B8F, page 60, a note

from a February 2017 therapy appointment where Ms. Krawczynski noted Plaintiff’s high

levels of stress and anxiety, and B9F, page 43, a note from a June 2017 appointment during

which Plaintiff told Ms. Krawczynski she was overwhelmingly sad and had significant

stressors in her life. (R. 923, 1038-39, 1081-82) Interestingly, the ALJ then cites to Exhibits

20F, 22F, and 25F as a whole (R. 1082) – duplicates of Exhibits 6F, 8F, and 9F (which the

ALJ cites portions of, as explained above) – replete with notes of Plaintiff’s anxiety, paranoia,

auditory hallucinations, panic attacks, overwhelming sadness, forgetfulness, and impaired

attention and concentration. (R. 2870, 2881, 2892, 2972, 3060, 3128, 3151-52) Exhibit 31F,

treatment notes from Dr. Haxhiu-Erhardt from January 2017 through August 2018, paints

the picture of a patient who tried working but whose symptoms derailed her, is anxious,

depressed, prone to panic attacks, cries daily, is distracted, and struggles to remember things.

(R. 3378, 3389, 3399-3401, 3412, 3451, 3459-60, 3501) The ALJ cites this exhibit as evidence

of Plaintiff’s well-groomed appearance and organized thought processes. (R. 1082)

As in Simon, this Court finds that the ALJ mischaracterized Dr. Haxhiu-Erhardt

medical records. See Simon, 7 F.4th at 1106 (“We conclude that isolated entries in Dr.

Turner’s treatment notes indicating that Simon was at times stable on his meds, without more,

cannot constitute or contribute to good cause to reject Dr. Turner’s opinions.”). This error

requires remand. Relatedly, as in Simon, the ALJ erred by concluding that Dr. Haxhiu-

Erhardt’s references to the Plaintiff being “well-groomed” with “normal speech” or his

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description of Plaintiff’s judgment as “fair to good” or her demeanor as “cooperative” were

inconsistent with his finding that Plaintiff suffers from debilitating mental illness. Id. at 1106.

Although Simon involved a claimant diagnosed with bipolar disorder, Plaintiff’s

mental health diagnosis of major depressive disorder with psychotic features is a chronic

condition too. Chronic mental disorders are characterized by “unpredictable fluctuation of

their symptoms, and this it is not surprising that even a highly unstable patient will have good

days or possibly good months.” Id. (quoting Scott v. Astrue, 647 F.3d 734, 740 (7th Cir. 2011)).

For those who suffer from chronic disorders, “‘a snapshot of any single moment says little

about [a person’s] overall condition,’ and an ALJ who relies on such snapshots to discredit

the remainder of a psychiatrist’s findings demonstrates a ‘fundamental, but regrettably all-too-

common, misunderstanding of mental illness.’” Id. (quoting Punzio v. Astrue, 630 F.3d 704,

710 (7th Cir. 2011)). And, “it is improper for an ALJ to dismiss a psychiatrist’s treatment

notes as ‘indicating only mild limitations … at best’ simply because ‘some of [the claimant’s]

mental-status examination were better than others.’” Id. (quoting Schink v. Comm’r of Soc. Sec.,

935 F.3d 1245, 1262 (11th Cir. 2019)). Like the claimant in Simon, the Plaintiff’s diagnosis

caused Plaintiff to experience more serious symptoms than those acknowledged by the ALJ.

These conditions, in Dr. Haxhiu-Erhardt’s opinion, resulted in significant limitations on

Plaintiff’s mental and social functioning. I conclude that the entries in Dr. Haxhiu-Erhardt’s

treatment notes indicating Plaintiff’s mental functioning was within “normal limits,” without

more, cannot constitute good cause to reject Dr. Haxhiu-Erhardt’s opinions.

To the extent the ALJ found that Dr. Haxhiu-Erhardt’s opinions “inconsistent with”

her treatment notes, Plaintiff’s testimony of her daily activities, and “other examinations”

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(which are all records from Dr. Haxhiu-Erhardt’s practice) (R. 1081, 1082), the Court also

finds error. In support of this conclusion, the ALJ emphasizes that Dr. Haxhiu-Erhardt’s

opinions are based at least in part of Plaintiff’s subjective reports. (R. 1082) However, a

“psychological assessment is by necessity based on the patient’s report of symptoms and

responses to questioning” and “it’s illogical to dismiss the professional opinion of an

examining psychiatrist or psychologist simply because that opinion draws from the claimant’s

reported symptoms.” Roundtree v. Saul, No. 8:18-cv-1524-T-SPF, 2019 WL 4668174, at *4

(M.D. Fla. Sept. 25, 2019) (quoting Aurand v. Colvin, 654 F.App’x 831, 837 (7th Cir. 2016)).

Second, to the extent that the ALJ labels Dr. Haxhiu-Erhardt’s opinions “inconsistent” with

other record evidence, the Court finds no “genuine” inconsistency. In Simon, the Eleventh

Circuit found that the ALJ had failed to identify a “genuine” inconsistency between the

treating psychiatrist’s opinions and the assessments of consultative doctors, explaining:

“It is not enough merely to point to positive or neutral observations that create,

at most, a trivial and indirect tension with the treating physician’s opinion by

proving no more than that the claimant’s impairments are not all-

encompassing.” Schink, at 1263. Consequently, when a claimant has been

diagnosed with the types of mental and emotional disorders at issue here,

highly generalized statements that the claimant was “cooperative” during

examination, that he exhibited “organized speech” and “relevant thought

content,” or that he showed “fair insight” and “intact cognition,” ordinarily

will not be an adequate basis to reject a treating physician’s opinions. Id. at

1262. Nor is it enough to say that the claimant is ‘intelligent enough to

understand and follow orders and to solve problems,’ such as serial sevens,

because “highly intelligent and able persons do fall prey to crippling

depression.” MacGregor, 786 F.2d at 1053-54.

Simon, 7 F.4th at 1107. Following Simon, the Court finds that the ALJ’s cursory conclusion

that recent treatment notes and exams show Plaintiff is “well groomed, cooperative, and

oriented with normal speech, logical and organized thought process, no evidence of

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perceptual disturbance, sustained attention and concentration, memory within normal limits,

fair to good insight and judgment, and described as a good historian despite issues with mood,

anxiety, and some instances of paranoid thoughts” (R. 1082) fails to establish a “genuine”

inconsistency. My review of the evidence shows Plaintiff’s significant symptoms have

persisted and that other providers have noted these symptoms too. For example, Plaintiff

treated with cardiologist Grace Cater, M.D. in January 2019 for heart palpitations. Dr. Cater

described Plaintiff as having anxiety and depression with episodes of heart palpitations

associated with these conditions two to three times per week that last two to three minutes

each time. (R. 3773-74) In February 2019, Dr. Haxhiu-Erhardt noted Plaintiff had been to

the ER “several times for horrible panic attacks.” (R. 3803) And consultative psychologist

Dr. Wax observed that Plaintiff was anxious and had body tremors. (R. 568-69) During the

consultative examination, Plaintiff “rocked intensely in her chair,” was “anxious and

inattentive,” and “intermittently distorted questions.” (R. 569-70) Dr. Wax concluded that

Plaintiff would not respond appropriately to coworkers in a work setting due to her depression

and anxiety, would struggle understanding, remembering, and carrying out simple

instructions, and would have difficulty maintaining attention and concentration. (R. 571)

And in remanding this case, I point out that an ALJ must consider “the fundamental

differences between the relaxed, controlled setting of a medical clinic and the more stressful

environment of the workplace.” Simon, 7 F.4th at 1107 (quoting Morales v. Apfel, 225 F.3d

310, 319 (3d Cir. 2000)) (“for a person who suffers from an affective disorder or personality

disorder marked by anxiety, the work environment is completely different from home or a

mental health clinic”); see also Schink, 935 F.3d at 1263 (“it is not inconsistent – or even that

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unlikely … that a patient with a highly disruptive mood disorder, in a structured one-on-one

conversation with a mental health professional, might be capable of ‘be[ing] redirected’ from

his ‘tangential’ thought processes so as to ‘remain on topic.’”); Castro v. Comm’r of Soc. Sec.,

783 F.App’x 948, 956 (11th Cir. 2019) (“Without more, we cannot say that [the treating

physician’s] observations of Castro’s judgment, insight, thought process, and thought content

in a treatment environment absent work stressors were inconsistent with his assessments

about the limitations she would face in a day-to-day work environment”).

Although the ALJ correctly notes he does not have to refer to every piece of evidence,

considering Plaintiff’s mental health treatment history and the regulations, the Court cannot

conclude that substantial evidence supports the ALJ’s decision. Dr. Haxhiu-Erhardt is

indisputably a specialized treating physician (a psychiatrist) who treated Plaintiff for the entire

relevant time frame (beginning before her onset date through 2019). She is the only treating

psychiatrist who has submitted opinions. Her opinions are consistent with the bulk of other

evidence in the file, including opinion evidence from Plaintiff’s therapist, Ms. Krawczynski6

(who treated Plaintiff with Dr. Haxhiu-Erhardt during the entire relevant time frame); the

ALJ failed to clearly articulate good cause for discounting Dr. Haxhiu-Erhardt’s opinions.

2. Remaining Issues

Considering the remand, it is unnecessary to address the remaining issues (the ALJ’s

consideration of the consultative psychologists’ opinions and Plaintiff’s borderline age

situation). However, given my finding that substantial evidence does not support discounting

6 An LCSW, as an “other source,” is not an “acceptable medical source,” but the ALJ should

consider such opinions. See 20 C.F.R. § 416.927.

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Dr. Haxhiu-Erhardt’s opinions, neither is there substantial evidence to support the ALJ’s

RFC determination. On remand, the ALJ is also directed to address whether a borderline

situation exists.’

D. Conclusion

It is ORDERED:

(1) The ALJ’s decision is REVERSED and REMANDED to the

Commissioner for further administrative proceedings consistent with this

Order; and

(2) The Clerk of Court is directed to enter judgment for Plaintiff and close the

case.

DONE and ORDERED in Tampa, Florida on September 29, 2021.

MARK A. PIZZO

UNITED STATES MAGISTRATE JUDGE

’ “Borderline age” means that the claimant is “within a few days to a few months of reaching

an older age category.” 20 C.F.R. § 416.963(b). In a borderline age situation, using the older

age category may result in a determination that the claimant is disabled, so the ALJ must

evaluate the overall impact of all the factors in the clatmant’s case and consider whether to

use the older age category. Jd. Plaintiff was 50 years old on her alleged onset date and 54

years and 9 months old when the ALJ issued his second decision that Plaintiff is not disabled.

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