# Brown v. Commissioner of Social Security

> District Court, M.D. Florida · January 14, 2022

URL: https://www.frixlaw.com/law-library/cases/10109227

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** January 14, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION

MARY ALICE BROWN,

Plaintiff,

v. Case No.: 2:20-cv-487-MRM

COMMISSIONER OF SOCIAL
SECURITY,

Defendant.
/
OPINION AND ORDER
Plaintiff Mary Alice Brown filed a Complaint on July 8, 2020. (Doc. 1).
Plaintiff seeks judicial review of the final decision of the Commissioner of the Social
Security Administration (“SSA”) denying her claim for a period of disability and
disability insurance benefits. The Commissioner filed the transcript of the
administrative proceedings (hereinafter referred to as “Tr.” followed by the
appropriate page number), and the parties filed a joint memorandum detailing their
respective positions. (Doc. 24). For the reasons set forth herein, the decision of the
Commissioner is REVERSED AND REMANDED pursuant to § 205(g) of the
Social Security Act, 42 U.S.C. § 405(g).
I. Social Security Act Eligibility
The law defines disability as the inability to do any substantial gainful activity
by reason of any medically determinable physical or mental impairment that can be
expected to result in death or that has lasted or can be expected to last for a
continuous period of not less than twelve months. 42 U.S.C. §§ 416(i), 423(d)(1)(A),
1382c(a)(3)(A); 20 C.F.R. § 404.1505. The impairment must be severe, making the
claimant unable to do her previous work or any other substantial gainful activity that

exists in the national economy. 42 U.S.C. §§ 423(d)(2), 1382c(a)(3); 20 C.F.R. §§
404.1505 - 404.1511.
II. Procedural History
Plaintiff applied for a period of disability and disability insurance benefits on
November 15, 2017, alleging a disability onset date of June 1, 2017. (Tr. at 10).1

Plaintiff’s claim was initially denied on March 5, 2018, and again upon
reconsideration on July 10, 2018. (Id.). On July 18, 2018, Plaintiff filed a written
request for hearing, which was held before Administrative Law Judge (“ALJ”)
Charles J. Arnold on July 9, 2019. (Id. at 10, 36-61). The ALJ issued an unfavorable

decision on August 7, 2019. (Id. at 10-26). The Appeals Council subsequently
denied Plaintiff’s request for review on May 8, 2020. (Id. at 1-3). Plaintiff filed her
Complaint in this Court on July 8, 2020, (Doc. 1), and the parties consented to
proceed before a United States Magistrate Judge for all purposes, (see Docs. 16, 19).
The matter is, therefore, ripe.

1 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. 5844-01, 5844 (Jan. 18,
2017). The new regulations apply in Plaintiff’s case because Plaintiff filed her claim
after March 27, 2017.
III. Summary of the Administrative Law Judge’s Decision
An ALJ must follow a five-step sequential evaluation process to determine

whether a claimant has proven she is disabled. Packer v. Comm’r of Soc. Sec., 542 F.
App’x 890, 891 (11th Cir. 2013) (citing Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir.
1999)). An ALJ must determine whether the claimant: (1) is performing substantial
gainful activity; (2) has a severe impairment; (3) has a severe impairment that meets
or equals an impairment specifically listed in 20 C.F.R. Part 404, Subpart P,

Appendix 1; (4) can perform her past relevant work; and (5) can perform other work
of the sort found in the national economy. Phillips v. Barnhart, 357 F.3d 1232, 1237-
40 (11th Cir. 2004). The claimant has the burden of proof through step four and then
the burden shifts to the Commissioner at step five. Hines-Sharp v. Comm’r of Soc. Sec.,
511 F. App’x 913, 915 n.2 (11th Cir. 2013).

The ALJ determined that Plaintiff met the insured status requirements of the
Social Security Act through September 30, 2020. (Tr. at 12). At step one, the ALJ
found that Plaintiff has not engaged in substantial gainful activity since her alleged
onset date, June 1, 2017. (Id.). At step two, the ALJ found that Plaintiff has the
following severe impairments: “residuals from breast cancer; neuropathy; bone

disorder; anxiety; depression; osteoporosis; and ischemic heart disease with atrial
fibrillation (20 [C.F.R. §] 404.1520(c)).” (Id.). The ALJ, at step three, determined
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 (20 [C.F.R. §§] 404.1520(d), 404.1525 and
404.1526).” (Id. at 13).
At step four, the ALJ found that Plaintiff has the residual functional capacity

(“RFC”) to “perform medium work as defined in 20 [C.F.R. §] 404.1567(c) except
only low stress work defined as no high production demands, entails only simple,
routine, repetitive tasks with simple instructions, no interaction with the general
public, and only occasional contact with others at the worksite.” (Id. at 15). The
ALJ also determined that Plaintiff “is unable to perform any past relevant work (20

[C.F.R. §] 404.1565).” (Id. at 24).
At step five, considering Plaintiff’s age, education, work experience, and RFC,
the ALJ determined that “there are jobs that exist in significant numbers in the
national economy that the claimant can perform (20 [C.F.R. §§] 404.1569 and

404.1569a).” (Id. at 25). Specifically, the ALJ, relying on Vocational Expert (“VE”)
testimony, found that Plaintiff could perform the following jobs that exist in
significant numbers in the national economy: Floor Waxer (DOT# 381.687-034);
Spiral Binder (DOT# 653.685-030); and Window Cleaner (DOT# 389.687-014).
(Id.). For these reasons, the ALJ held that Plaintiff “has not been under a disability,

as defined in the Social Security Act, from June 1, 2017, through the date of this
decision (20 [C.F.R. §] 404.1520(g)).” (Id. at 26).
IV. Standard of Review
The scope of this Court’s review is limited to determining whether the ALJ

applied the correct legal standard, McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir.
1988), and whether the findings are supported by substantial evidence, Richardson v.
Perales, 402 U.S. 389, 390 (1971). The Commissioner’s findings of fact are
conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial
evidence is more than a scintilla—i.e., the evidence must do more than merely create

a suspicion of the existence of a fact and must include such relevant evidence as a
reasonable person would accept as adequate to support the conclusion. Foote v.
Chater, 67 F.3d 1553, 1560 (11th Cir. 1995) (citing Walden v. Schweiker, 672 F.2d 835,
838 (11th Cir. 1982); Richardson, 402 U.S. at 401).
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, 67 F.3d at 1560; accord Lowery v. Sullivan,
979 F.2d 835, 837 (11th Cir. 1992) (court must scrutinize the entire record to
determine reasonableness of factual findings).
V. Analysis
On appeal, Plaintiff raises two issues. As stated by the parties, the issues are:

1. Whether the ALJ accounted for all of the practical
effects of Plaintiff’s cancer, including side effects of
radiation and chemotherapy, in the RFC or, in
alternative, erred by not finding a closed period of
disability; and

2. Whether the ALJ erred in his analysis of Plaintiff’s
subjective complaints.

(Doc. 24 at 14, 33). The Court addresses each issue in turn below.
A. The ALJ Failed to Assess Properly the Evidence of Record.

Plaintiff argues that the ALJ erred by failing to include all of her limitations in
her RFC because (1) “[t]he ALJ’s rationales for discounting every medical opinion
[were] glaringly deficient and unsupported by the record,” (see Doc. 24 at 17-19), and
(2) the ALJ did not consider “the totality of Plaintiff’s treatment, recovery and side
effects,” (see id. at 19-21).
Specifically, Plaintiff notes that the medical opinions of record “plainly limit
[her] to the performance of light work,” but the ALJ disregarded them in finding her
capable of performing medium work. (Id. at 18). Plaintiff also argues that the ALJ
failed to fully acknowledge the effect of her chemotherapy and radiation treatment
on her ability to function. (See id. at 19). Moreover, Plaintiff contends that “[t]he
ALJ’s reliance upon her watching television for 15 hours per day, is not even
arguably supportive of the ability to stand and walk for most of the day, as the ALJ
found.” (Id.).
Additionally, Plaintiff asserts that both her peripheral neuropathy, (id. (citing
Tr. at 582, 576, 786, 865, 869, 976, 922, 851, 855, 1285)), and the “sheer volume of
[her] treatments,” (id. at 19-20 (citations omitted)), should have been sufficient to

render her disabled. Plaintiff contends that, because she attended fifty-eight
appointments from April 2017 through February 2019, she was precluded from
working on a full-time basis as she would have required more than one absence per
month. (See id. (citations omitted); see also id. at 20 n.6 (citations omitted)).

Finally, Plaintiff claims that the ALJ erred by failing to consider whether the
“evidence describing the sheer volume of treatment between June 2017 and February
2019,” established a closed period of disability. (See id. at 21-22). Specifically,
Plaintiff argues that the ALJ needed to make separate RFC findings––one RFC
finding for Plaintiff’s limitations during her cancer treatment and one RFC finding

for her limitations during the remainder of the adjudicated period. (See id.).
In response, the Commissioner contends that substantial evidence supports the
ALJ’s RFC finding for the entire period at issue. (See id. at 22-33). Specifically, the
Commissioner asserts that the ALJ reviewed Plaintiff’s treatment notes for the entire
period, properly assessed the persuasiveness of every medical opinion, considered

Plaintiff’s activities of daily living, and made an appropriate RFC determination that
Plaintiff could perform medium work. (Id. at 22-23). The Commissioner further
supports her argument that the ALJ properly determined the persuasiveness of each
medical opinion by asserting that the ALJ considered each opinion’s supportability
and consistency. (Id. at 27-28). Moreover, the Commissioner contends that the ALJ
sufficiently assessed both the frequency and the impact of Plaintiff’s chemotherapy
and radiation treatments in finding that Plaintiff maintained the ability to perform
medium work. (See id. at 29-31). Finally, the Commissioner asserts that the ALJ did

not err by failing to consider whether Plaintiff was entitled to a closed period of
disability because (1) Plaintiff did not raise the issue before the ALJ and (2) her
cancer treatment did not establish that she had disabling limitations. (See id. at 31-33
(citations omitted)).
The Court analyzes below: (1) whether the ALJ’s determination of the

persuasiveness of the medical opinions of record is supported by substantial
evidence; and (2) whether the ALJ considered all of the evidence of record, including
the impact and frequency of Plaintiff’s cancer treatments, in determining Plaintiff’s
RFC. The Court finds that remand is required on the second sub-issue.

1. The ALJ Did Not Err in His Assessment of
the Medical Opinion Evidence.

The Social Security Administration revised its regulations regarding the
consideration of medical evidence, with those revisions applicable to all claims filed
after March 27, 2017. See 82 Fed. Reg. 5844-01, 2017 WL 168819 (Jan. 18, 2017).
Because Plaintiff filed her claim on November 15, 2017, (Tr. at 10), the revised
regulations apply, see 20 C.F.R. § 404.1520c. The regulations require that an ALJ
apply the same factors in considering opinions from all medical sources, rather than
afford specific evidentiary weight to certain sources’ opinions. 20 C.F.R. §
404.1520c(a).
In contrast, under Eleventh Circuit precedent, the “treating source rule”
requires the ALJ to afford “[t]he opinion of a treating physician . . . substantial or
considerable weight unless ‘good cause’ is shown to the contrary.” Phillips v.

Barnhart, 357 F.3d 1232, 1240 (11th Cir. 2004) (citing Lewis v. Callahan, 125 F.3d
1436, 1440 (11th Cir. 1997)).
At present, a question remains as to whether the Social Security
Administration’s 2017 revised regulations override the Eleventh Circuit’s treating
source rule. Compare Bevis v. Comm’r of Soc. Sec., No. 6:20-cv-579-LRH, 2021 WL

3418815, at *6 (M.D. Fla. Aug. 5, 2021) (“Given the absence of any binding or
persuasive guidance from the Court of Appeals, the Court is not willing to go as far
as the Commissioner suggests and find that cases applying the ‘good cause’ standard
are no longer good law, particularly given that Winschel [v. Comm’r of Soc. Sec., 631

F.3d 1176 (11th Cir. 2011)] remains binding Eleventh Circuit precedent.”), with
Marilyn Matos v. Comm’r of Soc. Sec., No. 21-11764, 2022 WL 97144, at *4 (11th Cir.
Jan. 10, 2022) (“[The SSA’s] new regulatory scheme no longer requires the ALJ to
either assign more weight to medical opinions from a claimant’s treating source or
explain why good cause exists to disregard the treating source’s opinion.”), Douglas v.

Saul, No. 4:20-cv-00822-CLM, 2021 WL 2188198, at *4 (N.D. Ala. May 28, 2021)
(“[Based on the application of Chevron and Brand X,] the court will apply the 2017
regulations – not the treating physician rule – to the ALJ’s evaluation of the opinion
evidence.”), and Stemple v. Kijakazi, No. 1:20-cv-485, 2021 WL 4060411, at *6 (N.D.
Ohio Sept. 7, 2021) (collecting cases in support of the same proposition). At the
same time, while the Eleventh Circuit has not directly addressed the issue in a
published opinion, it has considered it in a recent unpublished opinion, Marilyn
Matos v. Comm’r of Soc. Sec., No. 21-11764, 2022 WL 97144, at *4 (11th Cir. Jan. 10,

2022).2 In Matos, the Court found that the ALJ’s assessment of a treating source’s
medical opinion was legally sufficient where the ALJ only considered the medical
opinion’s supportability and consistency “in accordance with the SSA’s new
regulatory scheme.” Id. The Court expressly stated the SSA’s “new regulatory

scheme no longer requires the ALJ to either assign more weight to medical opinions
from a claimant’s treating source or explain why good cause exists to disregard the treating
source’s opinion.” Id. (emphasis added).
Here, Plaintiff fails to address the Commissioner’s argument that the Social
Security Administration’s 2017 revised regulations invalidate the Eleventh Circuit’s

treating source rule. (See Doc. 24). Given Plaintiff’s failure to address the issue and
the Eleventh Circuit’s recent opinion in Matos, the Court finds that the ALJ here is
not required to demonstrate good cause to find a treating source’s medical opinion
unpersuasive. However, even if the Eleventh Circuit’s good cause requirement still
applies, the result remains the same under both standards.

2 Unpublished opinions may be cited as persuasive on a particular point. The Court
does not rely on unpublished opinions as binding precedent. Citation to unpublished
opinions on or after January 1, 2007 is expressly permitted under Rule 31.1, Fed. R.
App. P. Unpublished opinions may be cited as persuasive authority pursuant to the
Eleventh Circuit Rules. 11th Cir. R. 36-2.
First, under the revised regulations, as to each medical source, the ALJ must
consider: (1) supportability; (2) consistency; (3) relationship with the claimant; (4)
specialization; and (5) “other factors that tend to support or contradict a medical

opinion or prior administrative medical finding.” 20 C.F.R. § 404.1520c(c).
Supportability and consistency constitute the most important factors in any
evaluation, and the ALJ must explain how those two factors are considered. See 20
C.F.R. § 404.1520c(b)(2). In assessing the supportability and consistency of a
medical opinion, the regulations provide that the ALJ need only explain the

consideration of these factors on a source-by-source basis – the regulations
themselves do not require the ALJ to explain the consideration of each opinion from
the same source. 20 C.F.R. § 404.1520c(b)(1). The regulations state:
[W]hen a medical source provides multiple medical
opinion(s) or prior administrative medical finding(s), we
will articulate how we considered the medical opinions or
prior administrative medical findings from the medical
source together in a single analysis using the factors listed
in paragraphs (c)(1) through (c)(5) of this section, as
appropriate. We are not required to articulate how we
considered each medical opinion or prior administrative
finding from one medical source individually.

20 C.F.R. § 404.1520c(b)(1).
Overall, supportability relates to the extent to which a medical source has
articulated support for the medical source’s own opinion, while consistency relates to
the relationship between a medical source’s opinion and other evidence within the
record. See 20 C.F.R. § 404.1520c(c)(1)-(2). Put differently, the ALJ’s analysis
considers whether the medical source’s opinion is (1) supported by the source’s own
records and (2) consistent with the other evidence of record. See Cook v. Comm’r of
Soc. Sec., No. 6:20-cv-1197-RBD-DCI, 2021 WL 1565832, at *3 (M.D. Fla. Apr. 6,
2021), report and recommendation adopted, No. 6:20-cv-1197-RBD-DCI, 2021 WL

1565162 (M.D. Fla. Apr. 21, 2021).
Second, assuming the treating source rule survived the amended regulations,
the ALJ must show “good cause” to discredit the opinion of a treating physician.
Phillips v. Barnhart, 357 F.3d 1232, 1240 (11th Cir. 2004) (citing Lewis v. Callahan, 125

F.3d 1436, 1440 (11th Cir. 1997)). “Good 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.” Winschel v. Comm’r of Soc. Sec., 631 F.3d
1176, 1179 (11th Cir. 2011) (quotations omitted) (citing Phillips, 357 F.3d at 1241).

“The ALJ must clearly articulate the reasons for giving less weight to the opinion of
a treating physician, and the failure to do so is reversible error.” Lewis, 125 F.3d at
1440; contra Matos, 2022 WL 97144, at *3-5.
Here, Plaintiff highlights that the state agency medical consultants and her
treating physician, Dr. Perez-Gallardo, opined that Plaintiff is limited to light work.

(See Doc. 24 at 17-18). Nonetheless, the ALJ found that (1) Plaintiff maintained the
RFC to perform medium work and (2) the state agency medical consultants’, the
state agency psychiatrist’s, Dr. Perez-Gallardo’s, and Dr. Kasprzak’s medical
opinions were unpersuasive. (Tr. at 22-24 (citing. Tr. at 67-70, 83-85, 97-98, 102-
105, 81, 99-101, 395-96, 402, 405-06, 994)). Plaintiff states that “[t]he ALJ’s
rationales for discounting every medical opinion are glaringly deficient and
unsupported by the record.” (Doc. 24 at 19). To assess whether the ALJ’s medical
opinion findings are supported by substantial evidence, the Court reviews below (a)

how the ALJ determined the persuasiveness of each opinion and (b) whether good
cause exists to discredit each opinion.
a. Whether the ALJ Properly Determined the
Persuasiveness of the State Agency Medical
Consultants’ Opinions.

In evaluating the persuasiveness of Dr. Oliver’s, Dr. Walker’s, and Dr.
Holmes’ opinions, (see Tr. at 67-70, 83-85, 97-98, 102-05), the ALJ specifically noted
that the opinions were inconsistent with the other evidence of record, (see id. at 22).
There is also substantial evidence within the record to support the ALJ’s
determination. (See id. at 529-30, 551-52, 579-80, 602-03, 668, 849-50, 887, 950, 983,
996, 1047-48, 1241-42, 1270, 1290).
The state agency medical consultants opined that Plaintiff could only perform
a reduced range of light work. (Id. at 67-70, 83-85, 102-05, 97-98). The ALJ found
these opinions inconsistent “with the generally normal to no more than moderate
findings by the claimant’s primary care providers.” (Id. at 22 (citations omitted)).

The ALJ also noted that those opinions were inconsistent with Plaintiff’s providers’
records showing that Plaintiff tolerated her cancer treatment well and that she had
generally normal objective examination findings. (Id. (citations omitted); see also Tr.
at 16-18). The ALJ specifically noted that the opinions were inconsistent with both:
(1) consultative neurologist Dr. Kibria’s May 8, 2018 comprehensive objective
examination findings, which show that Plaintiff was essentially normal with “a
normal gait and station, normal bilateral 5/5 and strength, and no evidence of

weakness, pronation, or drift,” except for “easy fatigability with repetitive testing,”
(id. at 22 (citing Tr. at 977)); and (2) consultative psychologist Dr. Kasprzak’s May
10, 2018 disability evaluation where Dr. Kasprzak “essentially found [Plaintiff]
normal on objective examination with only minor findings, such as below average
remote memory, abstract reasoning, and intellectual ability,” (id. (citing Tr. at 994)),

and noted that Plaintiff “had no difficulty sitting, standing, walking, [or] handling
objects,” (id. at 992). Finally, the ALJ noted that the state agency medical
consultants’ opinions were inconsistent with Plaintiff’s reported activities of daily
living. (Id. at 22; see also id. at 992-94).

Upon review, the Court finds that the evidence cited by the ALJ supports his
finding that the state agency medical consultants’ opinions were inconsistent with the
other evidence of record. (See id. at 529-30, 551-52, 579-80, 602-03, 668, 849-50, 887,
950, 977, 983, 992-94, 996, 1047-48, 1241-42, 1270, 1290).
b. Whether the ALJ Properly Determined the
Persuasiveness of the State Agency Psychiatrist’s
Opinion.

In evaluating the persuasiveness of Dr. Bohnert’s and Psy.D. Laboy’s
opinions, (id. at 81, 99-101), the ALJ specifically noted that the opinions were
inconsistent with the other evidence of record, (see id. at 22). Moreover, there is
substantial evidence within the record to support the ALJ’s determination. (See id. at
994, 1006-21).
The state agency psychiatrist and psychologist opined that Plaintiff did not

have a severe mental impairment. (Id. at 81, 99-101). The ALJ found these opinions
inconsistent Dr. Kasprzak’s diagnosis that Plaintiff exhibited an anxiety disorder, (see
id. at 994), and SalusCare, Inc.’s treatment notes suggesting that Plaintiff had
depression, (see id. at 1006-21). Notably, Plaintiff does not make a specific argument

related to the ALJ’s assessment of the persuasiveness of Dr. Bohnert’s and Psy.D.
Laboy’s opinions.
Upon review, the Court finds that the evidence cited by the ALJ supports his
finding that Dr. Bohnert’s and Psy.D. Laboy’s opinions were inconsistent with the
other evidence of record. (See id. at 994, 1006-21).

c. Whether the ALJ Properly Determined the
Persuasiveness of Dr. Perez-Gallardo’s Opinion.

In evaluating the persuasiveness of Dr. Perez-Gallardo’s opinion, (see Tr. at
395-96, 402, 405-06), the ALJ specifically noted that the opinion was unsupported by
Dr. Perez-Gallardo’s own notes and inconsistent with the other evidence of record,
(see id. at 23). There is also substantial evidence within the record to support the
ALJ’s determination. (See id. at 528-30, 551-52, 579-80, 585-86, 602-03, 668, 849-50,
861, 865-67, 869-72, 887, 950, 983-84, 996, 1047-48, 1086, 1241-42, 1270, 1290).
Dr. Perez-Gallardo opined that Plaintiff could not perform several of her job
duties, including “sitting, walking, lifting, [and] communicating,” because of her
cancer treatment and atrial fibrillation. (Id. at 395-96, 402, 405-06). The ALJ found
this opinion unsupported by Dr. Perez-Gallardo’s own treatment notes in which he
found Plaintiff to be “essentially normal with no more than occasional moderate

findings,” (see id. at 23), and inconsistent “with the generally normal no more than
occasionally moderate findings” in the other evidence of record, (see id.).
Specifically, the ALJ noted that Dr. Perez-Gallardo’s May 22, September 7, and
October 12, 2017, and January 9, February 21, March 22, May 9, June 19, and

December 18, 2018 objective physical examinations all showed that Plaintiff
exhibited normal physical and psychiatric findings, except that, beginning in
February 2018, Dr. Perez-Gallardo noted decreased sensation in several of Plaintiff’s
toes due and eventually diagnosed Plaintiff with peripheral neuropathy. (See id. at
16-17, 23 (citing Tr. at 551-52, 528-30, 585-86, 861, 865-67, 869-72, 983-84, 1047-48,

1086)). The ALJ also specifically noted that Dr. Perez-Gallardo’s opinion was
inconsistent with both: (1) consultative neurologist Dr. Kibria’s May 8, 2018
comprehensive objective examination findings, which show that Plaintiff was
essentially normal with “a normal gait and station, normal bilateral 5/5 and strength,
and no evidence of weakness, pronation, or drift,” except for “easy fatigability with

repetitive testing,” (id. at 23 (citing Tr. at 977); and (2) consultative psychologist Dr.
Kasprzak’s May 10, 2018 disability evaluation where Dr. Kasprzak “essentially
found [Plaintiff] normal on objective examination with only minor findings, such as
below average remote memory, abstract reasoning, and intellectual ability,” (id.
(citing Tr. at 994)), and noted that Plaintiff “had no difficulty sitting, standing, walking,
[or] handling objects,” (id. at 992 (emphasis added)). Finally, the ALJ noted that Dr.
Perez-Gallardo’s opinion was inconsistent with Plaintiff’s reported activities of daily
living, such as her ability to watch fifteen hours of television per day and

independently perform household chores. (Id. at 22; see also id. at 992-94).
Upon review, the Court finds that the evidence cited by the ALJ supports his
finding that Dr. Perez-Gallardo’s opinion was unsupported by the doctor’s own
notes and inconsistent with the other evidence of record. (See id. at 528-30, 551-52,

579-80, 585-86, 602-03, 668, 849-50, 861, 865-67, 869-72, 887, 950, 977, 983-84, 992-
94, 996, 1047-48, 1086, 1241-42, 1270, 1290). Further, even considering Dr. Perez-
Gallardo’s status as a treating physician, the ALJ clearly articulated good cause for
discrediting Dr. Perez-Gallardo’s opinion when the ALJ showed that the opinion
was inconsistent with the other evidence of record and unsupported by Dr. Perez-

Gallardo’s own medical records and objective physical examinations.
d. Whether the ALJ Properly Determined the
Persuasiveness of Dr. Kasprzak’s Opinion.

In evaluating the persuasiveness of Dr. Kasprzak’s opinion, (see Tr. at 994),
the ALJ specifically noted that the opinion was unsupported by Dr. Kasprzak’s own
notes and inconsistent with the other evidence of record, (see id. at 24). Moreover,
there is substantial evidence within the record to support the ALJ’s determination.
(See id. at 992-94, 1006-21).
Dr. Kasprzak opined that Plaintiff’s prognosis was “guarded for gainful
employment.” (Id. at 994). The ALJ found this opinion unsupported by Dr.
Kasprzak’s own treatment notes in which she assessed Plaintiff’s mental status and
made “essentially normal” findings. (See id. at 24; see also Tr. at 994). Additionally,
the ALJ found Dr. Kasprzak’s opinion inconsistent with SalusCare, Inc.’s treatment

notes finding that Plaintiff “had no more than moderate findings such as depressed
mood and diagnosis of an adjustment reaction with depressed mood. (See id. at 24
(citing Tr. at 1006-21)). The ALJ also noted that Dr. Kasprzak’s opinion was
inconsistent with Plaintiff’s reported activities of daily living, such as her ability to
watch fifteen hours of television per day and independently perform household

chores. (Id. at 22; see also id. at 992-94).
Notably, Plaintiff does not make a specific argument regarding the ALJ’s
assessment of the persuasiveness of Dr. Kasprzak’s opinion.
Upon review, the Court finds that the evidence cited by the ALJ supports his

finding that Dr. Kasprzak’s opinion was unsupported by her own notes and
inconsistent with the other evidence of record. (See id. at 992-94, 1006-21). Further,
even considering Dr. Kasprzak’s status as a treating physician, the ALJ clearly
articulated good cause for discrediting Dr. Kasprzak’s opinion when the ALJ showed
that the opinion was inconsistent with the other evidence of record and unsupported

by Dr. Kasprzak’s own medical records and objective findings.
e. Whether the ALJ Properly Assessed All Medical
Opinions.

Related to all medical opinions, the Court is not persuaded by Plaintiff’s broad
arguments that the ALJ’s persuasiveness determinations were insufficient because of
his reliance on Plaintiff’s ability to watch television for fifteen hours a day and his
alleged “fail[ure] to take into consideration the totality of Plaintiff’s treatment,
recovery and side effects.” (See Doc. 24 at 19 (citations omitted)).

First, while Plaintiff contends that her ability to watch television for fifteen
hours a day does not relate to the ALJ’s assessment of the medical opinions of
record, (see id.), the Court disagrees and finds that Plaintiff’s ability to watch
television for a fifteen-hour period is arguably inconsistent with the medical opinions
stating that Plaintiff: (1) lacked the ability to sit, (see Tr. at 395, 406); (2) could only

“[s]it (with normal breaks) for a total of: [a]bout 6 hours in an 8-hour workday,” (id.
at 68, 83, 102); (3) had mild limitations in concentrating, persisting, or maintaining
pace, (id. at 100); and (4) had a prognosis of “[g]uarded for gainful employment,” (id.
at 994).

Second, the Court finds that the ALJ considered the entire record in assessing
the persuasiveness of every medical opinion, as evinced by his thorough analysis of
the medical evidence in his decision, (id. at 16-21 (citations omitted)), and his
citations to relevant records while assessing the consistency of the medical opinion
evidence, (id. at 22-24 (citations omitted)).

In sum, the Court finds that the ALJ comprehensively analyzed the
supportability and consistency of every medical opinion of record while determining
the persuasiveness of each as required by 20 C.F.R. § 404.1520c. Additionally, the
Court finds that the ALJ’s determinations of the persuasiveness of the medical
opinions are supported by substantial evidence within the record. Further, even
considering Dr. Perez-Gallardo’s and Dr. Kasprzak’s statuses as treating physicians,
the ALJ clearly articulated good cause for discrediting their opinions.
Thus, the Court finds that the ALJ’s decision is due to be affirmed as to this

sub-issue.
2. The ALJ Failed to Properly Consider All Evidence of Record
in Assessing Plaintiff’s RFC.

As discussed above, Plaintiff contends that the ALJ erred by failing to “take
into consideration the totality of Plaintiff’s treatment, recovery and side effects.”
(Doc. 24 at 19-21). More specifically, Plaintiff argues that the ALJ failed to
acknowledge: (1) the effect of her chemotherapy and radiation treatment, (id. at 19);
(2) her peripheral neuropathy, (id. (citing Tr. at 582, 576, 786, 865, 869, 976, 922,
851, 855, 1285)); and (3) the “sheer volume of [her] treatments,” (id. at 19-20
(citations omitted)). Plaintiff asserts that, because she attended fifty-eight
appointments from April 2017 through February 2019, she was precluded from
working on a full-time basis as she would have been absent more than once a month.

(See id. (citations omitted); see also id. at 20 n.6 (citations omitted)).
In response, the Commissioner contends that the ALJ sufficiently assessed the
evidence of record in finding that Plaintiff maintained the ability to perform medium
work. (See id. at 29-33 (citations omitted)). Additionally, the Commissioner asserts
that “[s]imply engaging in intensive treatment is not enough to establish disability.”

(Id. at 30). Further, the Commissioner argues that Plaintiff has not proven that her
treatment would have required her to miss work because she could have potentially
balanced a work schedule with her treatments. (Id.).
At step four of the sequential evaluation process, the ALJ must assess the

claimant’s RFC. 20 C.F.R. § 404.1520(a)(4)(iv). During the RFC assessment, the
ALJ must consider all relevant evidence of record. 20 C.F.R. § 404.1520(a)(3).
However, “there is no rigid requirement that the ALJ specifically refer to every piece
of evidence in his decision, so long as the ALJ’s decision enables the district court to
conclude that the ALJ considered [the claimant’s] medical condition as a whole.”

Adams v. Comm’r of Soc. Sec., 586 F. App’x 531, 533 (11th Cir. 2014) (quotations
omitted) (quoting Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005)).
Here, upon reviewing the record, the Court finds that the ALJ considered the
evidence related to the effects of Plaintiff’s chemotherapy and radiation treatments.

(See Tr. at 16-21). To that end, the Court is not persuaded by Plaintiff’s argument
that the ALJ failed to consider the impact of Plaintiff’s chemotherapy and radiation
treatment on her ability to function. (Doc. 24 at 19). While Plaintiff provides
multiple citations to support her contention, (see id. (citing Tr. at 582, 576, 786, 865,
869, 976, 922, 851, 855, 1285)), a review of the record and the ALJ’s decision reveals

that the ALJ expressly considered the cited records during step four of the sequential
analysis, (see Tr. at 16-21 (citing Tr. at 789, 865, 869-70, 976, 849, 853, 856, 1291)).
Additionally, the ALJ considered the records on Plaintiff’s peripheral neuropathy,
(id. at 17, 20-21 (citing Tr. at 865, 867, 869-70, 1241-42)), and the effects of her
chemotherapy and radiation treatments, (id. at 17-21 (citing Tr. at 602-03, 928-29,
965, 1241-42, 789, 1335-36, 893, 976-77, 1272, 696)). Thus, to the extent that
Plaintiff argues the ALJ did not consider the evidence on Plaintiff’s chemotherapy
and radiation treatment and their side effects, the Court is not persuaded.

However, the Court is persuaded by Plaintiff’s argument that the ALJ failed to
consider the “sheer volume of [her] treatments.” (See Doc. 24 at 19-20 (citations
omitted)).
To begin, “whether the number of medical appointments affects [a plaintiff’s]
ability to work is not an appropriate consideration for assessing [the plaintiff’s RFC]

because that determination considers only the functional limitations and restrictions
resulting from medically determinable impairments.” Cherkaoui v. Comm’r of Soc.
Sec., 678 F. App’x 902, 904 (11th Cir. 2017) (citing SSR 96-8p, 1996 WL 374184
(July 2, 1996)). Put differently, the number of medical appointments attended by

Plaintiff were “not a functional limitation caused by her impairments that would
affect her physical or mental capabilities” and did not render her disabled. Id.
Nevertheless, while a considerable number of medical appointments do not render a
claimant disabled, the ALJ is still required to consider all relevant evidence of record,
including the “effects of treatment,” such as the frequency and duration of treatment,

during his assessment of a plaintiff’s RFC. SSR 96-8p, 1996 WL 374184, at *5 (July
2, 1996).3

3 “Social Security Rulings are agency rulings published under the Commissioner’s
authority and are binding on all components of the Administration.” Klawinski v.
Comm’r of Soc. Sec., 391 F. App’x 772, 775 (11th Cir. 2010) (citing Sullivan v. Zebley,
493 U.S. 521, 531 n.9 (1990)). While Social Security Rulings are not binding on the
Here, the Court finds that the ALJ failed to properly consider the frequency
and duration of Plaintiff’s treatment in assessing Plaintiff’s RFC. (See Tr. at 16-21).
Upon a review of the ALJ’s decision, the Court notes that the ALJ expressly

discussed the relevant findings in: (1) sixteen of Plaintiff’s medical appointments
with her Dr. Perez-Gallardo and ARNP Cajoux, (id. at 16-17 (citing Tr. at 555-57,
551-52, 548, 540, 536, 680, 537, 528-30, 585-86, 849, 853, 918-19, 856, 860-61, 865,
867, 869-70, 893-94, 1047-48, 1086)); (2) two of Plaintiff’s emergency room visits, (id.

at 17 (citing Tr. at 467-68, 1023, 1030)); (3) seven of Plaintiff’s visits at Florida
Cancer Specialists, (id. at 17-18 (citing Tr. at 602-03, 588-89, 928-29, 965, 1241-42,
1230-31, 1301)); (4) five of Plaintiff’s appointments with Dr. Sandadi, who noted that
Plaintiff completed six cycles of chemotherapy, (id. at 18 (citing Tr. at 789, 996-1003,
1335-36)); and (5) five of Plaintiff’s appointments with her cardiologist, Dr. Arnold,

(id. (citing Tr. at 612, 740, 773, 1248, 956-57, 962-63, 1159)). Notably absent from
the ALJ’s decision, however, is an assessment or consideration of whether the
frequency or duration of Plaintiff’s medical appointments impacted her RFC during
the relevant period.
While the Commissioner asserts that Plaintiff may have been able to schedule

her medical appointments in a way that did not preclude work, (see Doc. 24 at 30),
the ALJ failed to address or consider those possibilities, (see Tr. at 16-26). The

Court, they are still afforded “great respect and deference, if the underlying statute is
unclear and the legislative history offers no guidance.” Id. (citing B. ex rel. B. v.
Schweiker, 643 F.2d 1069, 1071 (5th Cir. 1981)).
Eleventh Circuit has held that “a court may not accept . . . counsel’s post hoc
rationalizations for agency actions.” Baker v. Comm’r of Soc. Sec., 384 F. App’x 893,
896 (11th Cir. 2010) (citation omitted). Instead, “[i]f an action is to be upheld, it

must be upheld on the same bases articulated in the agency’s order.” Id. (citation
omitted). Thus, the Court declines to accept Defendant’s post hoc arguments
regarding the frequency and duration of Plaintiff’s medical appointments.
Additionally, the ALJ failed to address the VE’s testimony that “an employer

would allow one absence in a month” and “more than that would be a work
preclusive limitation.” (See id. at 59-60). To that end, Plaintiff’s chemotherapy and
radiation treatments required six cycles of chemotherapy every twenty-one days
beginning on July 28, 2017, (id. at 603), and continuing through November 17, 2017,
(id. at 580), followed by radiation therapy, (id. at 824),4 followed by an additional

eighteen cycle plan of chemotherapy every twenty-one days beginning on February
9, 2018, (id. at 817-18),5 and continuing through February 15, 2019, (id. at 886-87,
965-66, 1231, 1234, 1241-42, 1300). Moreover, while the ALJ considered four of

4 The ALJ does not discuss the duration of Plaintiff’s radiation therapy, which the
Commissioner concedes lasted for thirty days in 2018. (See Tr. at 16-26; Doc. 24 at
30).

5 The Court notes that a majority of the medical records in the “History of Present
Illness” and “Treatment” sections state that Plaintiff underwent eighteen cycles of
“Adjuvant Herceptin” treatment from February 9, 2017, through February 15, 2019.
(See, e.g., Tr. at 817, 1300). However, this appears to be a scrivener’s error as
Plaintiff’s “Adjuvant Herceptin” treatment did not begin until February 9, 2018. (Id.
at 817-18, 888). It is unclear whether the ALJ was aware of this error because he did
not discuss it.
Plaintiff’s “Adjuvant Herceptin” treatments, (see id. at 17-18 (citing Tr. at 928-29,
965, 1241-42, 1230-31)), the ALJ did not acknowledge that Plaintiff underwent an
eighteen-cycle treatment plan, requiring a medical appointment every twenty-one

days from February 9, 2018, through February 15, 2019. To be sure, the ALJ was
not required to find Plaintiff disabled based solely on the frequency or duration of her
medical appointments. However, the ALJ was required to consider those factors in
conjunction with the other evidence of record. Here, there is no indication that the
ALJ considered the actual frequency or duration of Plaintiff’s treatments. See SSR

96-8p, 1996 WL 374184, at *5 (July 2, 1996); see also Deandrea v. Berryhill, No. 8:17-
cv-2195-T-AEP, 2019 WL 1376520, at *3 (M.D. Fla. Mar. 27, 2019) (finding that the
ALJ erred by failing to consider the frequency of a plaintiff’s medical appointments).
Such consideration was especially relevant in Plaintiff’s case because her condition

required a significant number of appointments at intervals of twenty-one days during
a prolonged period, the record shows that Plaintiff’s appointments were not excessive
or unnecessary, and Plaintiff does not rely on the frequency of her treatments alone
to allege disability. See Deandrea, 2019 WL 1376520, at *3.
The Court finds that the ALJ failed to consider all of the relevant evidence of

record in determining Plaintiff’s RFC––namely, the frequency of Plaintiff’s medical
appointments. Moreover, while Plaintiff may have been able to maintain full-time
work despite the frequency of her treatments, the ALJ still failed to address the issue
or raise that possibility and the Court will “not decide the facts anew, reweigh the
evidence, or substitute [its] judgment” for that of the ALJ. Bloodsworth v. Heckler, 703
F.2d 1233, 1239 (11th Cir. 1983). Given the ALJ’s apparent failure to consider the
frequency of Plaintiff’s medical appointments, the Court finds that the ALJ erred,
and remand is warranted. On remand, the ALJ must consider the frequency and

duration of Plaintiff’s treatments and explain how the course of treatment is
reconcilable with the VE’s testimony on permissible levels of absenteeism.
B. Plaintiff’s Remaining Arguments.
Plaintiff’s remaining arguments focus on whether the ALJ sufficiently

considered the other evidence of record. Because the Court finds that remand is
appropriate for the ALJ to consider the frequency of Plaintiff’s treatment, the Court
finds that the ALJ must re-evaluate all the medical evidence of record, including, but
not limited to, whether Plaintiff may be entitled to a closed period of disability and
whether Plaintiff’s extensive work history bolsters her subjective symptom

allegations as those questions may be impacted by the ALJ’s consideration of the
frequency of Plaintiff’s treatment. Accordingly, the disposition of the remaining
issues would be premature.
VI. Conclusion
Upon consideration of the parties’ submissions and the administrative record,

the Court finds the ALJ’s apparent failure to consider the frequency of Plaintiff’s
medical appointments warrants remand. Accordingly, the Court ORDERS that:
1. The decision of the Commissioner is REVERSED AND REMANDED
Pursuant to sentence four of 42 U.S.C. § 405(g).
2. On remand, the Commissioner must:
(1) consider the frequency and duration of Plaintiff's
treatments; (2) explain how Plaintiffs course of
treatment is reconcilable with the VE’s testimony
regarding permissible levels of absenteeism; and (3) re-
evaluate all evidence of record.
3. Any application for fees, costs, or expenses must comply with the
Court’s Standing Order on Management of Social Security Cases, In re
Administrative Orders of the Chief Judge, Case No. 3:21-me-1-TJC, Doc. 43
(Dec. 7, 2021).
4, The Clerk of Court is directed to enter judgment accordingly, to
terminate any pending motions and deadlines, and to close the case.
DONE AND ORDERED in Fort Myers, Florida on January 14, 2022.

Mac R. MA
United States Magistrate Judge

Copies furnished to:
Counsel of Record
Unrepresented Parties

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10109227. Public record. Not legal advice.