Perez v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

WENDY PEREZ,

Plaintiff,

v. Case No: 6:20-cv-1341-LHP

COMMISSIONER OF SOCIAL

SECURITY

Defendant.

MEMORANDUM OF DECISION1

Wendy Perez (“Claimant”) appeals the final decision of the Commissioner of

Social Security (“the Commissioner”) denying her applications for supplemental

security income (“SSI”) and disability insurance benefits (“DIB”). Doc. No. 1.

Claimant raises two arguments challenging the Commissioner’s final decision, and,

based on those arguments, requests that the matter be reversed and remanded for

further administrative proceedings. Doc. No. 29, at 12, 28, 39. The Commissioner

asserts that the decision of the Administrative Law Judge (“ALJ”) is supported by

substantial evidence and that the final decision of the Commissioner should be

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

Magistrate Judge. See Doc. Nos. 23, 28–29.

affirmed. Id. at 40. For the reasons stated herein, the Commissioner’s final

decision is REVERSED and REMANDED for further proceedings pursuant to

sentence four of 42 U.S.C. § 405(g).

I. PROCEDURAL HISTORY.

On January 22, 2018, Claimant filed applications for DIB and SSI, alleging a

disability onset date of April 6, 2012. R. 15, 68, 267–70, 271–79.2 The applications

were denied initially and on reconsideration, and Claimant requested a hearing

before an ALJ. R. Tr. 146–51, 153–54, 155–66, 167–71. A hearing was held before

the ALJ on August 7, 2019, at which Claimant was represented by an attorney. R.

38–64. Claimant and a vocational expert (“VE”) testified at the hearing. Id.

After the hearing, the ALJ issued an unfavorable decision finding that

Claimant was not disabled. R. 15–28. Claimant sought review of the ALJ’s

decision by the Appeals Council. R. 244–46. On June 2, 2020, the Appeals Council

2 The applications state that they were filed on March 12, 2018. R. 267–70, 271–79.

However, according to the ALJ’s decision and other record evidence, the applications were

filed on January 22, 2018. R. 15, 68. For consistency, and because the application date

is not dispositive of this appeal, the Court utilizes the application date stated by the ALJ:

January 22, 2018. The Court also notes that Claimant was previously found disabled by

the SSA. See R. 247–64. However, according to the parties, the SSA conducted a

disability review in 2016, and determined that Claimant was no longer disabled. See Doc.

No. 29, at 12 n.1 (citing R. 476). The present appeal concerns only the newly filed January

22, 2018 applications for DIB and SSI.

denied the request for review. R. 1–6. Claimant now seeks review of the final

decision of the Commissioner by this Court. Doc. No. 1.

II. THE ALJ’S DECISION.3

After careful consideration of the entire record, the ALJ performed the five-

step evaluation process as set forth in 20 C.F.R. §§ 404.1520(a), 416.920(a). R. 15–

28.4 The ALJ found that Claimant met the insured status requirements of the

Social Security Act through March 31, 2020. R. 18. The ALJ further found that

Claimant had not engaged in substantial gainful activity since April 6, 2012, the

alleged onset date. Id. The ALJ found that Claimant suffered from the following

severe impairments: epilepsy; attention deficit/hyperactivity disorder (ADHD);

3 Upon a review of the record, counsel for the parties have adequately stated the

pertinent facts of record in the Joint Memorandum. Doc. No. 29. Accordingly, the Court

adopts those facts included in the body of the Joint Memorandum by reference without

restating them in entirety herein.

4 An individual claiming Social Security disability benefits must prove that he or

she is disabled. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005) (citing Jones v. Apfel,

190 F.3d 1224, 1228 (11th Cir. 1999)). “The Social Security Regulations outline a five-step,

sequential evaluation process used to determine whether a claimant is disabled: (1)

whether the claimant is currently engaged in substantial gainful activity; (2) whether the

claimant has a severe impairment or combination of impairments; (3) whether the

impairment meets or equals the severity of the specified impairments in the Listing of

Impairments; (4) based on a residual functional capacity (‘RFC’) assessment, whether the

claimant can perform any of his or her past relevant work despite the impairment; and (5)

whether there are significant numbers of jobs in the national economy that the claimant

can perform given the claimant’s RFC, age, education, and work experience.” Winschel v.

Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (citing Phillips v. Barnhart, 357 F.3d

1232, 1237 (11th Cir. 2004); 20 C.F.R. §§ 404.1520(a)(i)–(v), 416.920(a)(i)–(v)).

depression; anxiety; post-traumatic stress disorder (PTSD); mitral valve disease;

and borderline intellectual functioning. Id.5 The ALJ concluded that Claimant

did not have an impairment or combination of impairments that met or equaled a

listed impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1. R. 18–21.

Based on a review of the record, the ALJ found that Claimant had the residual

functional capacity (“RFC”) to perform medium work as defined in the Social

Security regulations,6 except:

[T]he claimant can climb ramps and stairs frequently, but never climb

ladders, ropes or scaffolds. She can balance frequently. She can

never work at unprotected heights or around moving mechanical

parts. The claimant can perform simple, routine and repetitive tasks.

She is able to perform simple work-related decisions. The can (sic.)

interact with supervisors, co-workers and the public occasionally.

R. 21.

After considering the record evidence, Claimant’s RFC, and the testimony of

the VE, the ALJ found that Claimant was unable to perform any past relevant work,

which included work as a cashier checker. R. 26. However, considering

Claimant’s age, education, work experience, and RFC, as well as the testimony of

5 The ALJ concluded that Claimant’s impairments of gastroesophageal reflux

disease (GERD), hypothyroid disorder, glaucoma, and hearing loss were not severe

impairments. R. 18.

6 Pursuant to the Social Security regulations, “[m]edium work involves lifting no

more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to

25 pounds. If someone can do medium work, [the SSA] determine[s] that he or she can

also do medium, light, and sedentary work.” 20 C.F.R. §§ 404.1567(c), 416.967(c).

the VE, the ALJ concluded that there were jobs existing in significant numbers in

the national economy that Claimant could perform, representative occupations to

include Cleaner II, Bagger, and Kitchen Helper. R. 26–27. Accordingly, the ALJ

concluded that Claimant was not disabled from the September 20, 2016 application

date through the date of the decision. Id.

III. STANDARD OF REVIEW.

Because Claimant has exhausted her administrative remedies, the Court has

jurisdiction to review the decision of the Commissioner pursuant to 42 U.S.C.

§ 405(g), as adopted by reference in 42 U.S.C. § 1383(c)(3). The scope of the Court’s

review is limited to determining whether the Commissioner applied the correct

legal standards and whether the Commissioner’s findings of fact are supported by

substantial evidence. Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir.

2011). The Commissioner’s findings of fact are conclusive if they are supported by

substantial evidence, 42 U.S.C. § 405(g), which is defined as “more than a scintilla

and is such relevant evidence as a reasonable person would accept as adequate to

support a conclusion.” Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997).

The Court must view the evidence as a whole, taking into account evidence

favorable as well as unfavorable to the Commissioner’s decision, when determining

whether the decision is supported by substantial evidence. Foote v. Chater, 67 F.3d

1553, 1560 (11th Cir. 1995). The Court may not reweigh evidence or substitute its

judgment for that of the Commissioner, and, even if the evidence preponderates

against the Commissioner’s decision, the reviewing court must affirm if the decision

is supported by substantial evidence. Bloodsworth v. Heckler, 703 F.2d 1233, 1239

(11th Cir. 1983).

IV. ANALYSIS.

In the Joint Memorandum, which the Court has reviewed, Claimant raises

two assignments of error: (1) the ALJ erred in his consideration of a psychological

evaluation report issued by Dr. Yamila Santos, Ph.D. and Dr. Brenda L. Arroyo,

Ph.D.; and (2) the ALJ erred at step five of the sequential evaluation process because

the VE’s testimony does not constitute substantial evidence to support the ALJ’s

step-five findings. Doc. No. 29. Upon consideration, the Court finds the first

assignment of error dispositive of this appeal.

The ALJ is tasked with assessing a claimant’s RFC and ability to perform past

relevant work. Phillips v. Barnhart, 357 F.3d 1232, 1238 (11th Cir. 2004). The RFC

“is an assessment, based upon all of the relevant evidence, of a claimant’s remaining

ability to do work despite his impairments.” Lewis, 125 F.3d at 1440. In

determining a claimant’s RFC, the ALJ must consider all relevant evidence,

including the opinions of medical and non-medical sources. 20 C.F.R. §

404.1545(a)(3).

Claimant filed her applications for DIB and SSI on January 22, 2018. R. 15,

68, 267–70, 271–79. Effective March 27, 2017, the Social Security Administration

implemented new regulations related to the evaluation of medical opinions, which

provide, in pertinent part, as follows:

(a) How we consider medical opinions and prior administrative

medical findings. We will not defer or give any specific evidentiary

weight, including controlling weight, to any medical opinion(s) or

prior administrative medical finding(s), including those from your

medical sources. When a medical source provides one or more

medical opinions or prior administrative medical findings, we will

consider those medical opinions or prior administrative medical

findings from that medical source together using the factors listed in

paragraphs (c)(1) through (c)(5) of this section, as appropriate.[7] The

most important factors we consider when we evaluate the

persuasiveness of medical opinions and prior administrative medical

findings are supportability (paragraph (c)(1) of this section) and

consistency (paragraph (c)(2) of this section). We will articulate how

we considered the medical opinions and prior administrative medical

findings in your claim according to paragraph (b) of this section.

20 C.F.R. §§ 404.1520c(a), 416.920c(a). The regulations further state that because

supportability and consistency are the most important factors under consideration,

the Commissioner “will explain how [she] considered the supportability and

consistency factors for a medical source’s medical opinions or prior administrative

7 Subparagraph (c) provides that the factors to be considered include: (1)

supportability; (2) consistency; (3) relationship with the claimant (which includes

consideration of the length of treatment relationship; frequency of examination; purpose

of treatment relationship; extent of treatment relationship; and examining relationship); (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), 416.920c(c).

medical findings in [the] determination or decision.” Id. §§ 404.1520c(b)(2),

416.920c(b)(2).8

Pursuant to the new regulations, the Commissioner is not required to

articulate how she “considered each medical opinion or prior administrative

medical finding from one medical source individually.” Id. §§ 404.1520c(b)(1),

416.920c(b)(1). “Courts have found that ‘[o]ther than articulating [her]

consideration of the supportability and consistency factors, the Commissioner is not

required to discuss or explain how [she] considered any other factor in determining

persuasiveness.’” Bell v. Comm’r of Soc. Sec., No. 6:20-cv-1923-DCI, 2021 WL

5163222, at *2 (M.D. Fla. Nov. 5, 2021) (quoting Freyhagen v. Comm’r of Soc. Sec.

Admin., No. 3:18-cv-1108-MCR, 2019 WL 4686800, at *2 (M.D. Fla. Sept. 26, 2019)).

See also Delaney v. Comm’r of Soc. Sec., No. 6:20-cv-2398-DCI, 2022 WL 61178, at *2

(M.D. Fla. Jan. 6, 2022) (noting that the ALJ may, but is not required to, explain how

he or she considered the remaining factors besides supportability and consistency).

In this case, Claimant’s argument centers on the ALJ’s consideration of a

psychological evaluation report issued by Drs. Santos and Arroyo, after they

8 “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.” Welch v.

Comm’r of Soc. Sec., No. 6:20-cv-1256-DCI, 2021 WL 5163228, at *2 (M.D. Fla. Nov. 5, 2021)

(footnote omitted) (citing 20 C.F.R. §§ 404.1520c(c)(1)–(2), 416.920c(c)(1)–(2)).

conducted four separate evaluations of Claimant.9 Doc. No. 29, at 13–17. See R.

1236–49 (Exhibit 28F). In the decision, the ALJ noted the psychological evaluation,

and summarized portions thereof as follows:

A psychological evaluation performed by Primary Psychology of

Central Florida on September 18, October 2, 9, and November 5, 2018,

showed the claimant referred to assess her overall functioning. It was

noted that the claimant completed high school and graduated with a

standard diploma. She never repeated a grade, but her grades were

low. She received services in school for speech/language delays but

denied learning problems; however, she reported difficulties focusing.

She completed a certificate in dog grooming school and also completed

a two year program at Everest University in criminal justice[.] The

claimant had been applying for jobs, with no call back as of yet.

Mental health history showed she began receiving mental health

treatment in 2014 due to suicidal ideation. She wanted to travel to

Massachusetts to visit friend and her father said no. The parents were

concerned of her being taken advantage of. The claimant became

upset and verbalized wanting to jump from the roof. Subsequently,

she was psychiatrically hospitalized for two days with no other history

of hospitalizations. The claimant’s depression worsened in 2017 and

the claimant reported symptoms of feeling down frequently, tiredness,

fears about people following her, frequent mages of what transpired

with her ex-girlfriend, nightmares, sleep disturbances, isolation and

sadness (Ex. 28F/3-4). The claimant was administered the Wechsler

Adult Intelligence Scale (WATS-TV) test and scored a full scale IQ

(FSIQ) of 85, verbal comprehension score of 89 and a perceptual

reasoning score of 102. Overall, intellectual ability was in the low

average range and non-verbal ability was in the average range.

Working memory index was borderline and processing speed index

was borderline. Severe signs of depression were revealed on the Beck

Depression Inventory (BDI) indicative of major depressive disorder.

Diagnostic impression was for unspecified neurocognitive disorder,

unspecified trauma and stressor related disorder and major depressive

9 Dr. Santos is a licensed psychologist and Dr. Arroyo is a post-doctoral resident.

See R. 1248. Claimant saw Drs. Santos and Arroyo on September 18, 2018, October 2, 2018,

October 9, 2018, and November 5, 2018. R. 1237.

disorder, recurrent episode, moderate, with anxious distress (Ex.

28F/5-l2).

R. 23–24.10

In the Joint Memorandum, Claimant contends that the ALJ “overlooked

significant portions” of Drs. Santos and Arroyo’s psychological evaluation. Doc.

No. 29, at 15. She points to several examples of the evaluation that the ALJ

allegedly failed to consider: (1) the opinion that Claimant’s Processing Speed

Index was in borderline range, indicating moderate difficulties in the ability to

complete simple tasks in a timely manner; (2) Claimant’s WRAML211 scores

revealed deficits in attention and concentration, which indicates deficits in

Claimant’s ability to perform rote memory tasks and interfere with her ability to

learn and remember information; and (3) the overall results from the evaluation

indicated that Claimant presents with deficits in several cognitive areas, including

sustained attention, processing speed, and working memory, and due to such

10 The ALJ also points to the psychological evaluation to support isolated factual

findings in the decision, including that Claimant’s last seizure was in March 2018, which

was triggered by not taking her medications; Claimant completed high school with special

accommodations and a two-year program in criminal justice; and Claimant maintained

employment in the past, drove a car, and completed college courses. R. 24–26. The ALJ

also found the state agency psychological consultants’ opinions persuasive in part because

the ALJ found that the psychological evaluation by Drs. Santos and Arroyo demonstrated

“severe mental health impairments with [Claimant] still retaining the ability to perform at

a reduced level as noted by her ability to complete college courses and maintain

employment in the past.” R. 25.

11 Wide Range Assessment of Memory and Learning Second Edition. See R. 1240.

deficits, normal tasks take longer to complete, Claimant may require increased

effort to comply, and that could result in physical or mental fatigue. Id. (citing R.

1246–47). According to Claimant, the ALJ failed to state what weight, if any he

accorded to Drs. Santos and Arroyo’s opinions, and made findings that failed to

account for such opinions. Id. And although at step three of the sequential

evaluation process the ALJ found that Claimant had moderate limitations in her

ability to concentrate, persist, or maintain pace, Claimant contends that the ALJ’s

RFC determination and hypothetical question to the VE failed to specifically

account for such limitations, in particular, based on Drs. Santos and Arroyo’s

opinions, rendering the failure to consider said opinions harmful on the facts of this

case. Id. at 15–17.

In response, the Commissioner argues that Claimant fails to point to any

actual contradictions between Drs. Santos and Arroyo’s opinions and the RFC

determination, rendering error, if any, in failing to consider Drs. Santos and

Arroyo’s opinions harmless. Id. at 22, 24. The Commissioner further asserts that

Claimant’s contention that the ALJ failed to state the weight afforded to their

opinions is without merit because the new Social Security regulations do not require

the ALJ to assign weight to any particular medical opinion. Id. at 22–23.

According to the Commissioner, the ALJ clearly considered Drs. Santos and

Arroyo’s psychological evaluation, and the ALJ was under no obligation to

explicitly discuss every facet of the report. Id. at 23. Finally, the Commissioner

contends that the ALJ’s RFC determination implicitly accounted for the step-three

finding that Claimant had moderate difficulties in maintaining concentration,

persistence, or pace by limiting Claimant to simple, routine, repetitive tasks and

simple work-related decisions. Id. at 26–28.

On review, the Commissioner is correct that, as a general proposition, the ALJ

is not required to assign any particular weight to medical opinions under the new

regulations. See 20 C.F.R. §§ 404.1520c(a), 416.920c(a) (“We will not defer or give

any specific evidentiary weight, including controlling weight, to any medical

opinion(s) . . . .”). See also Torres v. Comm'r of Soc. Sec., No. 6:19-cv-1662-Orl-PDB,

2020 WL 5810273, at *4 (M.D. Fla. Sept. 30, 2020). But, unlike what the

Commissioner suggests, that does not mean that the ALJ was relieved of his

obligation to address the opinions set forth in Drs. Santos and Arroyo’s

psychological evaluation at all. See 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2)

(obligating the Commissioner to “explain how [she] considered the supportability

and consistency factors for a medical source’s medical opinions or prior

administrative medical findings in [the] decision”); Brown v. Comm'r of Soc. Sec., No.

6:20-cv-840-GJK, 2021 WL 2917562, at *4 (M.D. Fla. July 12, 2021) (reversing decision

under the new regulations where the ALJ did not address the supportability and

consistency of opinions from two medical sources). See also Martinez v. Comm'r of

Soc. Sec., No. 6:19-cv-2379-ACC-DCI, 2020 WL 4820651, at *3 (M.D. Fla. Aug. 3,

2020), report and recommendation adopted, 2020 WL 4816070 (M.D. Fla. Aug. 19, 2020)

(finding reversible error where, under the new regulations, the ALJ failed to

“mention, let alone weigh” the opinions of medical professionals).

As discussed above, the ALJ did consider portions of Drs. Santos and

Arroyo’s psychological evaluation in determining Claimant’s RFC. R. 23–24. But,

as Claimant points out, the ALJ’s decision is lacking discussion of certain aspects of

the evaluation containing medical opinions. Doc. No. 29, at 15. Those opinions

included that Claimant had moderate difficulties in the ability to complete simple

tasks in a timely manner; that Claimant had deficits in attention and concentration

interfering with Claimant’s ability to perform rote memory tasks and her ability to

learn and remember information; and that Claimant presents with deficits in several

cognitive areas, including sustained attention, processing speed, and working

memory, and due to such deficits, normal tasks take longer to complete, Claimant

may require increased effort to comply, and that could result in physical or mental

fatigue. See R. 1246–47.12 And, the ALJ nowhere discussed how he evaluated Drs.

Santos and Arroyo’s opinions, including a complete absence of any analysis

12 See also 20 C.F.R. §§ 404.1513(a)(2), 416.913(a)(2) (defining medical opinion as “a

statement from a medical source about what [the claimant] can still do despite [his/her]

impairments(s)” and whether the claimant has any functional limitations or restrictions

regarding certain enumerated abilities).

concerning the consistency and supportability factors. See R. 23–24.

The Commissioner does not seem to dispute that Drs. Santos and Arroyo’s

psychological evaluation includes medical opinions, instead arguing that the ALJ’s

failure to address those opinions was harmless because none of the opinions conflict

with the RFC. Doc. No. 29, at 22–24. Given that the ALJ errs (even under the new

regulations) in failing to address the supportability and consistency of medical

opinions, see 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2), the issue then, is whether

the ALJ’s failure to do so here was harmless. Compare Carson v. Comm'r of Soc. Sec.,

No. 6:21-cv-20-DCI, 2022 WL 294719, at *2 (M.D. Fla. Feb. 1, 2022) (applying

harmless error analysis under new regulations to an ALJ’s error in failing to

mention or consider medical opinions, an error which the Court concluded was not

harmless where it could have impacted the RFC determination), and Spaar v.

Kijakazi, No. 5:20-CV-94, 2021 WL 6498838, at *5 (S.D. Ga. Dec. 28, 2021), report and

recommendation adopted, 2022 WL 141613 (S.D. Ga. Jan. 14, 2022) (considering

whether error in failing to address the supportability of medical opinions under the

new regulations was harmless, and finding that any error could not be harmless

where it could have a material impact on the RFC determination), with Lankford v.

Saul, No. CA 20-0228-MU, 2021 WL 867847, at *4 (S.D. Ala. Mar. 7, 2021) (applying

harmless error analysis under new regulations to conclude that any error by the ALJ

in discounting certain medical opinions was harmless given that there were no

medical opinions regarding the claimant’s functional limitations); Jackson v. Saul,

No. 8:19-cv-2780-T-TGW, 2020 WL 6867408, at *4 (M.D. Fla. Nov. 20, 2020) (applying

harmless error analysis under new regulations to ALJ’s failure to evaluate medical

opinions; concluding that failure was harmless because the symptoms on which the

claimant relied did not constitute medical opinions, and even if they did, they were

not adequate to support a claim of disability).

Upon consideration, the Court cannot conclude that the ALJ’s failure to

adequately consider Drs. Santos and Arroyo’s opinions was harmless on the facts

of this case. In particular, without citation to any authority in support, the

Commissioner asserts as follows:

Plaintiff points to notes from Dr. Santos’ and Dr. Arroyo’s

evaluation indicating that she had “moderate difficulties” in her ability

to complete simple tasks in a timely manner (Tr. 1246), but the vague

reference to “moderate difficulties” does not establish an inability to

perform simple, routine, repetitive work (Tr. 21). Similarly, the

evaluation’s finding that Plaintiff had “moderate difficulties”

memorizing new information and then recalling it later (Tr. 1246) does

not show that she would be unable to perform work that was simple,

particularly where the work was routine and repetitive, thereby

negating the need to memorize new information in the performance of

the work.

Likewise, Plaintiff fails to show that the RFC limitations do not

accommodate her deficits in cognitive areas identified by Dr. Santos

and Dr. Arroyos. Dr. Santos and Dr. Arroyos opined that these

deficits might make it difficult for Plaintiff to complete normal tasks

(Tr. 1247), but the ALJ did not restrict Plaintiff to normal tasks; rather,

he restricted her to simple, repetitive, routine tasks, thereby limiting

the taxing nature of the work she would need to perform (Tr. 21). Thus,

the ALJ’s RFC finding is not undermined or contradicted by the

opinion of Dr. Arroyo and Dr. Santos . . . .

Doc. No. 29, at 25–26.

However, the ALJ provides no explanation as to how these areas do not

conflict, and the Commissioner points to no legal authority demonstrating that

there is no conflict between Claimant’s moderate difficulties in completing tasks in

a timely manner and her ability to perform simple, routine, repetitive work;

Claimant’s moderate difficulties memorizing and recalling new information and

her ability to perform simple work; or Claimant’s difficulty in completing “normal

tasks” and the restriction to “simple, repetitive, routine tasks.” As such, the Court

cannot agree with the Commissioner’s argument that, on this record, the failure to

address Drs. Santos and Arroyo’s opinions in the psychological evaluation report

was harmless. See, e.g., Carson, 2022 WL 294719, at *2 (concluding that failure to

discuss, mention, or consider medical opinions could not be harmless error under

the new regulations where the opinions were relevant to the resulting RFC

determination, and the potential impact of the opined-to limitations was reasonably

disputed by the parties); Spaar, 2021 WL 6498838, at *5, report and recommendation

adopted, 2022 WL 141613 (S.D. Ga. Jan. 14, 2022) (concluding that error in failing to

address the supportability of medical opinions could not be harmless under the new

regulations where the medical opinions, if adopted as a component of the claimant’s

RFC, could have resulted in the difference between performing light work and

being disabled). See also Grullon v. Saul, No. 1:19-CV-24825-KMM, 2021 WL

1520701, at *7 (S.D. Fla. Jan. 23, 2021), report and recommendation adopted, 2021 WL

972314 (S.D. Fla. Mar. 16, 2021) (reversing after concluding error in failing to weigh

medical opinions could not be harmless under the older regulations where the ALJ

found that the claimant had the RFC to perform medium work, perform simple and

routine tasks, and make simple work-related decisions because the medical

opinions not addressed stated that the claimant had deficits in attention, focus, and

remembering details, problems making decisions, and difficulty with tasks

demanding divided or alternating attention, which were inconsistent with the ALJ’s

finding regarding concentration, persistence, and pace).

This is especially true because, although the Commissioner argues to the

contrary, the ALJ provided no explanation in the record to demonstrate that

limiting Claimant’s RFC to simple, repetitive tasks sufficiently accounted for the

step-three finding that Claimant is moderately limited in concentration, persistence,

and pace. R. 15–28. See Winschel, 631 F.3d at 1180 (rejecting argument that an ALJ

generally accounts for a claimant’s limitations in concentration, persistence, and

pace by restricting the hypothetical question to simple, routine tasks or unskilled

work, but stating that “when medical evidence demonstrates that a claimant can

engage in simple, routine tasks or unskilled work despite limitations in

concentration, persistence, and pace, courts have concluded that limiting the

hypothetical to include only unskilled work sufficiently accounts for such

limitations”); Richter v. Comm'r of Soc. Sec., 379 F. App'x 959, 962 (11th Cir. 2010)

(error by ALJ in RFC determination and question to VE was not harmless where

inquiry conducted did not implicitly account for the claimant’s deficiencies in

concentration, persistence, and pace); Kelley v. Colvin, No. 3:13CV649-SRW, 2014

WL 4230038, at *6 (M.D. Ala. Aug. 26, 2014) (concluding that without medical

evidence that the claimant remained capable of performing simple work as outlined

in the RFC, the RFC limitation did not account for the claimant’s difficulties in

maintaining concentration, persistence, or pace, collecting authority). 13

Consequently, “on remand, the ALJ should make a specific finding as to whether

the record medical evidence supports the conclusion that [Claimant] can engage in

simple, routine tasks despite her moderate limitations in concentration, persistence

and pace.” See Shortridge v. Astrue, No. 1:11-CV-71-MP-GRJ, 2012 WL 1598012, at

13 Notably, in all of the cases on which the Commissioner relies, the court

determined that the medical evidence of record demonstrated that the ALJ adequately

accounted for moderate limitations in concentration, persistence, or pace by limiting the

claimant to simple, routine, and repetitive tasks because the medical evidence

demonstrated that the claimant could perform such simple, routine, and repetitive tasks.

See Doc. No. 29, at 27. Here, however, in light of the conflicting evidence and medical

opinions of record, and because the ALJ did not explain how the record demonstrates that

Claimant retained the ability to perform simple, routine, and repetitive tasks, the Court

declines to find the Commissioner’s post-hoc reliance on status examinations that were

sometimes “benign and unremarkable, including logical and goal-oriented thought

processes, fair to good attention, concentration, and memory, and fair to good insight and

judgment,” see id. at 28, sufficient on the current record to demonstrate that any error was

harmless on the facts of this case.

*9 (N.D. Fla. Apr. 3, 2012), report and recommendation adopted, 2012 WL 1597518

(N.D. Fla. May 7, 2012). “In the absence of such a finding the ALJ cannot account

for moderate difficulties in concentration, persistence and pace by simply limiting

[Claimant] to simple, routine tasks.” See id.

Based on the foregoing, the Court is constrained to reverse and remand this

matter for further administrative proceedings. 14 Given that Claimant’s first

assignment of error is dispositive of this appeal, the Court declines to address

Claimant’s remaining arguments. See Diorio v. Heckler, 721 F.2d 726, 729 (11th Cir.

1983) (on remand the ALJ must reassess the entire record); McClurkin v. Soc. Sec.

Admin., 625 F. App’x 960, 963 n.3 (11th Cir. 2015) (no need to analyze other issues

when case must be reversed due to other dispositive errors).

V. CONCLUSION.

Based on the foregoing, it is ORDERED that:

1. The final decision of the Commissioner is REVERSED and

REMANDED for further proceedings pursuant to sentence four of 42

U.S.C. § 405(g).

14 In remanding this matter for further administrative proceedings, the Court is not

suggesting that the ALJ reach any particular conclusion. Instead, remand is necessary so

that the ALJ can properly address the medical opinions and other evidence of record,

regardless of the conclusion ultimately reached.

2. The Clerk of Court is DIRECTED to enter judgment in favor of

Claimant and against the Commissioner, and thereafter, to CLOSE the

case.

DONE and ORDERED in Orlando, Florida on February 16, 2022.

ayn □□□□

LESLIE AN PRICE

UNITED STATES MAGISTRATE JUDGE

Copies furnished to:

Counsel of Record

Unrepresented Parties

Ay.