Marshall v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

SARAH J. MARSHALL,

Plaintiff,

v. CASE NO. 3:20-cv-1008-MCR

ACTING COMMISSIONER OF

THE SOCIAL SECURITY

ADMINISTRATION,

Defendant.

___________________________________/

MEMORANDUM OPINION AND ORDER1

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

administrative decision denying her application for a period of disability and

disability insurance benefits (“DIB”), alleging disability beginning January 1,

2018. Following an administrative hearing held on November 18, 2019, the

assigned Administrative Law Judge (“ALJ”) issued a decision, finding

Plaintiff not disabled from January 1, 2018, the alleged disability onset date,

through January 21, 2020, the date of the ALJ’s decision.2 (Tr. 15-23.) Based

on a review of the record, the briefs, and the applicable law, the

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

Magistrate Judge. (Doc. 17.)

2 Plaintiff had to establish disability on or before December 31, 2022, her date

last insured, in order to be entitled to a period of disability and DIB. (Tr. 15.)

Commissioner’s decision is REVERSED and REMANDED under sentence

four of 42 U.S.C. § 405(g).

I. Standard of Review

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

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

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

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

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

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

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

Cir. 2004). Where the Commissioner’s decision is supported by substantial

evidence, the district court will affirm, even if the reviewer would have

reached a contrary result as finder of fact, and even if the reviewer finds that

the evidence preponderates against the Commissioner’s decision. Edwards v.

Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991); Barnes v. Sullivan, 932 F.2d

1356, 1358 (11th Cir. 1991). The district court must view the evidence as a

whole, taking into account evidence favorable as well as unfavorable to the

decision. Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995); accord Lowery

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

scrutinize the entire record to determine the reasonableness of the

Commissioner’s factual findings).

II. Discussion

A. Issues on Appeal

Plaintiff raises four issues on appeal. First, she argues that the ALJ

failed to review Plaintiff’s record in its entirety, alleging that the ALJ failed

to obtain Plaintiff’s medical records from out-of-state providers. (Doc. 25 at

13-14.) Plaintiff’s second argument is that the ALJ erred in his review of

Plaintiff’s record, alleging that the ALJ disregarded diagnostic studies, notes

from Plaintiff’s physicians, and Plaintiff’s own subjective complaints, and

instead relied on “his own opinions regarding Plaintiff’s conditions,”

unrelated notes in Plaintiff’s record, and the opinion of the State agency

physician. (Id. at 14-17.) Due to this error, Plaintiff contends that “it is

impossible to show that [the ALJ’s] denial is supported by any evidence, let

alone a substantial amount.” (Id. at 15.) Plaintiff’s third, albeit brief,

argument is that the ALJ failed to discuss the requirements of the SSA

listing under epilepsy. (Id. at 17-18.) Finally, Plaintiff argues that the ALJ

failed to mention several of Plaintiff’s other impairments, diagnostic history,

medication history, “and the symptomology thereof.” (Id. at 19-24.)

According to Plaintiff, the ALJ’s failure to consider the totality of Plaintiff’s

conditions rendered the ALJ’s questioning of the vocational expert incomplete

and the formulation of the residual functional capacity (“RFC”) “impossible.”

(Id. at 24.)

Defendant responds that Plaintiff “makes conclusory assertions

throughout her brief,” many of which misrepresent the record and are “wholly

meritless.” (Doc. 29 at 4-5.) Defendant contends that substantial evidence

supports the ALJ’s RFC finding, the ALJ’s subjective complaint analysis, and

the Commissioner’s ultimate decision. (Id. at 7-19.) According to Defendant,

the ALJ’s decision complied with the proper legal standards and should be

affirmed. (Id. at 19.)

B. Standard for Evaluating Opinion Evidence and

Subjective Symptoms

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

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

regard to medical opinions, the rules in 20 C.F.R. § 404.1520 apply to claims

filed on or after March 27, 2017.3 See Revisions to Rules Regarding the

Evaluation of Medical Evidence, 82 F.R. 5844-01, 2017 WL 168819 (Jan. 18,

2017). Because Plaintiff’s claim was filed after March 27, 2017, the Court

applies the revised rules and regulations in effect at the time of the ALJ’s

decision.

Under the revised rules and regulations, the ALJ need “not defer or

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

3 The rules in 20 C.F.R. § 404.1527 apply to claims filed before March 27,

2017.

medical opinion(s) . . . , including those from [the claimant’s] medical

sources.” 20 C.F.R. § 404.1520c(a). The ALJ will articulate in the

administrative decision how persuasive all of the medical opinions are in the

case record, 20 C.F.R. § 404.1520c(b), but need not articulate how evidence

from non-medical sources has been considered, 20 C.F.R. § 404.1520c(d).

“When a medical source provides one or more medical opinions,” those

opinions will be considered “together in a single analysis,” using the factors

listed in 20 C.F.R. § 404.1520c(c)(1) through (c)(5), as appropriate. 20 C.F.R.

§ 404.1520c(a), (b)(1). The ALJ is “not required to articulate how [he/she]

considered each medical opinion . . . from one medical source individually.”

20 C.F.R. § 404.1520c(b)(1).

When evaluating the persuasiveness of medical opinions, the most

important factors are supportability4 and consistency.5 20 C.F.R. §

404.1520c(a), (b)(2). Thus, the ALJ “will explain how [he/she] considered the

supportability and consistency factors for a medical source’s medical

opinions” in the determination or decision but is not required to explain how

4 “The more relevant the objective medical evidence and supporting

explanations presented by a medical source are to support his or her medical

opinion(s) . . . , the more persuasive the medical opinions . . . will be.” 20 C.F.R. §

404.1520c(c)(1).

5 “The more consistent a medical opinion(s) . . . is with the evidence from

other medical sources and nonmedical sources in the claim, the more persuasive the

medical opinion(s) . . . will be.” 20 C.F.R. § 404.1520c(c)(2).

he/she considered the rest of the factors listed in 20 C.F.R. § 404.1520c(c). 20

C.F.R. § 404.1520c(b)(2). When “two or more medical opinions . . . about the

same issue are both equally well-supported . . . and consistent with the record

. . . but are not exactly the same,” the ALJ will articulate how he/she

considered the other most persuasive factors listed in 20 C.F.R. §

404.1520c(c)(3) through (c)(5), which include a medical source’s relationship

with the claimant,6 specialization, and other factors.7 20 C.F.R. §

404.1520c(b)(3).

When a claimant seeks to establish disability through her own

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

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

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

she] must articulate explicit and adequate reasons for doing so.” Id.

The pain standard requires (1) evidence of an underlying

medical condition and either (2) objective medical evidence that

confirms the severity of the alleged pain arising from that

condition or (3) that the objectively determined medical condition

6 The relationship with the claimant factor combines consideration of the

following issues: the length of the treatment relationship, the frequency of the

examinations, the purpose of the treatment relationship, the extent of the

treatment relationship, and the examining relationship. 20 C.F.R. §

404.1520c(c)(3)(i)-(v).

7 The other factors may include: the medical source’s familiarity with the

other evidence in the claim; the medical source’s understanding of the disability

program’s policies and evidentiary requirements; and the availability of new

evidence that may render a previously issued medical opinion more or less

persuasive. 20 C.F.R. § 404.1520c(c)(5).

is of such a severity that it can be reasonably expected to give

rise to the alleged pain.

Id.

Once a claimant establishes that her subjective symptom is disabling

through “objective medical evidence from an acceptable medical source that

shows . . . a medical impairment(s) which could reasonably be expected to

produce the pain or other symptoms,” pursuant to 20 C.F.R. § 404.1529(a),

“all evidence about the intensity, persistence, and functionally limiting effects

of pain or other symptoms must be considered in addition to the medical

signs and laboratory findings in deciding the issue of disability,” Foote, 67

F.3d at 1561. See also SSR 16-3p8 (stating that after the ALJ finds a

medically determinable impairment exists, the ALJ must analyze “the

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

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

ability to perform work-related activities”).

As stated in SSR 16-3p:

In considering the intensity, persistence, and limiting

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

entire case record, including the objective medical evidence; an

individual’s statements about the intensity, persistence, and

limiting effects of symptoms; statements and other information

8 SSR 16-3p rescinded and superseded SSR 96-7p, effective March 28, 2016,

eliminating the use of the term “credibility,” and clarifying that “subjective

symptom evaluation is not an examination of an individual’s character.” SSR 16-3p.

provided by medical sources and other persons; and any other

relevant evidence in the individual’s case record.

. . .

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

for our adjudicators to make a single, conclusory statement that

“the individual’s statements about his or her symptoms have

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

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

enough for our adjudicators simply to recite the factors described

in the regulations for evaluating symptoms.9 The determination

or decision must contain specific reasons for the weight given to

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

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

subsequent reviewer can assess how the adjudicator evaluated

the individual’s symptoms.

. . .

In evaluating an individual’s symptoms, our adjudicators

will not assess an individual’s overall character or truthfulness in

the manner typically used during an adversarial court litigation.

The focus of the evaluation of an individual’s symptoms should

not be to determine whether he or she is a truthful person.

Rather, our adjudicators will focus on whether the evidence

establishes a medically determinable impairment that could

reasonably be expected to produce the individual’s symptoms and

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

whether the intensity and persistence of the symptoms limit the

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

SSR 16-3p.

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

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

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

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

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

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

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

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

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

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

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

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

evaluating whether symptom intensity and persistence affect the ability to

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

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

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

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

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

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

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

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

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

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

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

• That the individual may have structured his or her activities

to minimize symptoms to a tolerable level by avoiding physical

activities or mental stressors that aggravate his or her

symptoms;

• That the individual may receive periodic treatment or

evaluation for refills of medications because his or her

symptoms have reached a plateau;

• That the individual may not agree to take prescription

medications because the side effects are less tolerable than the

symptoms;

• That the individual may not be able to afford treatment and

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

• That a medical source may have advised the individual that

there is no further effective treatment to prescribe or

recommend that would benefit the individual;

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

limitations), the individual may not understand the

appropriate treatment for or the need for consistent

treatment.

Id.

C. Relevant Evidence

1. Plaintiff’s Medical Evidence

The following relevant evidence, covering the period from March 2018

through October 2019, was submitted to the ALJ regarding Plaintiff’s

physical impairments. At the outset, Plaintiff’s history of epilepsy is noted

throughout her treatment notes and medical records. (See Tr. 303, 312, 316,

320, 335-36, 338, 346-49, 351, 361.)

Since June 2018, Plaintiff was treated by Dr. Ortolani, who noted

generalized idiopathic epilepsy and epileptic syndromes. (Tr. 312-14, 336.)

Dr. Ortolani increased the dosage of Plaintiff’s medication, Keppra, due to

“breakthrough seizures.” (Tr. 313.) Dr. Ortolani noted that Plaintiff was

“having her seizures in the morning,” and directed her to “take most of the

Keppra at bedtime.” (Id.)

At a follow-up appointment in July 2018, Dr. Ortolani noted that

Plaintiff “continue[d] to have seizures between visits,” and “report[ed] at least

3 since her last visit.” (Tr. 316.) According to Dr. Ortolani’s notes, since

starting Tegretol, Plaintiff “reported no seizures” and stated it seemed to be

helping as she had “been seizure free for 10 days.” (Id.) Further notes

indicate that Plaintiff was “tolerating her mediation well.” (Id.) However, an

EEG performed two weeks after Plaintiff’s July appointment revealed

abnormal findings. (Tr. 320.)

In August 2018, Plaintiff presented to the emergency department

following a seizure-related injury. (Tr. 303.) She reported that she “ha[d]

been having seizures once a week for the past year” and had “her usual

seizure” in the days leading up to the emergency room presentation. (Id.)

Plaintiff explained “she was going to the bathroom . . . [and] had another

seizure causing her to fall face front.” (Id.) As a result, Plaintiff presented

with a hematoma to her forehead. (Id.)

In November 2018, Plaintiff returned to Dr. Ortolani. (Tr. 333.) The

doctor’s note reflects that Plaintiff “was last seen 7/23/18” and since then, she

had been experiencing increasing random jerks daily, which lasted for two to

three hours, and which were not severe, but still hindered her. (Id.) Despite

Plaintiff’s reported increase in “random jerks,” Plaintiff was “[a]ble to

complete the majority of routine daily tasks.” (Id.)

In January 2019, Dr. Ortolani’s follow-up note states, in relevant part:

[Plaintiff] reports there has been no new major seizures since her

last visit but there have been small mild episodes. These usually

take place close to [the] next scheduled dose of medication. She

reports these also increase around her menstrual cycle. She

states when this occurs[,] she just stares and has minor shaking

with a little confusion and trouble speaking.

(Tr. 338.) To address Plaintiff’s reported complaints, Dr. Ortolani changed

her medication schedule, directing Plaintiff to “spread out the current dose of

[her] medication to 2 Keppra at 6am and 1 Keppra at 6pm along with 2

Tegretol at 6 am and 2 Tegretol at 6 pm.” (Id.) Plaintiff was also given a

water pill to take the week before her menstrual cycle. (Id.) Plaintiff denied

any unwanted side effects from the medication, and reported no over-

sedation, poor coordination, aberrant behaviors or mood changes. (Id.)

Plaintiff followed up with Dr. Ortolani in March 2019. (Tr. 336.) At

that appointment, she stated that the “medication [was] working to keep the

majority of [the] seizures under control.” (Id.) However, Plaintiff still

suffered from seizures approximately twice a week. (Tr. 337.) Plaintiff

denied any untoward side effects and was compliant with the medication as

prescribed. (Tr. 336.) Plaintiff reported she was “able to handle the activities

of daily living without assistance.” (Id.) Also, a functional assessment form,

completed by Plaintiff that month provides that she did not “need help with”

activities, such as grooming, dressing, shopping, performing housework,

preparing meals, feeding, walking, bathing, and getting in and out of chairs.

(Tr. 361.)

In the fall of 2019, Plaintiff had several appointments at the Orlando

Epilepsy Center. (Tr. 346-49.) The note from her September 2019 visit states

that her seizures were “triggered by stress where [she] would have almost

daily seizure[s] during stressful time[s].” (Tr. 349.) It also states that

Plaintiff “was seizure free for about 1 year until August 2019 [when] she was

under tremendous stress” due to her husband losing his job. (Id.) Plaintiff

reported bodily jerks three to four times per week, and associated staring

spells. (Id.) Notably, during this visit, Plaintiff’s eyes rolled “to [the] right

side involuntarily and she lost awareness during [the] exam.” (Tr. 351.)

However, it was noted that Plaintiff “was without any seizure symptoms

since her Tegretol was switched to Topamax.” (Tr. 329.)

In September 2019, Plaintiff underwent another EEG, which also

revealed abnormal findings. (Tr. 352.) On October 15, 2019, approximately

three weeks after her last visit, Plaintiff returned to the Orlando Epilepsy

Center, but reported no seizures since her last appointment. (Tr. 346.)

2. Hearing Testimony

Plaintiff appeared by counsel at the November 18, 2019 hearing before

the ALJ. (Tr. 30-69.) At the outset, the ALJ asked Plaintiff’s counsel if

Plaintiff’s records were “complete and up-to-date,” to which counsel

responded affirmatively. (Tr. 36.) Plaintiff’s counsel then stated that “the

limited amount of medical records are due to our joined [sic] inability to get

medical records from [Plaintiff’s] previous state[s] of Wisconsin . . . [a]nd New

York.” (Id.) When asked if there were any outstanding, relevant records

“during the pertinent period” between January 1, 2018 and the hearing date,

Plaintiff’s counsel responded in the negative. (Id.) The ALJ then asked if he

needed to “intervene to get those records” and whether, between January and

April 2018, “there [was] something really, really important there missing,” to

which Plaintiff’s counsel responded, “Oh, no.” (Tr. 37.)

Plaintiff testified, in relevant part, that she suffered a grand mal

seizure the night before the hearing, and had one seizure per week in

September. (Tr. 38.) Plaintiff also testified that migraines followed her

seizures and that they were “severe” and “disabling,” and that she needed “to

sleep [them] off until [they] finally [went] away, hours later.” (Id.) Plaintiff

further testified that once she had a seizure, she also had a migraine and it

took “a whole day to recover” from it. (Tr. 39.) Plaintiff stated that despite

taking her medications, she was still having seizures on a regular basis. (Id.)

She also stated that she did not drive because the State of New York had

revoked her driver’s license due to a seizure-related accident in 2017. (Tr. 39,

54.)

In addition, Plaintiff testified that she taught online courses for about

thirty-five hours per week and she had never suffered a seizure while

teaching. (Tr. 46-48.) She stated that she was independent in self-care and

was able to clean the house and perform basic chores, including meals, but

her husband did not want her “to work with knives or glassware” in the

kitchen due to injury concerns. (Tr. 55-56.) Also, her husband had to either

sit in the bathroom or stand outside the door when Plaintiff was taking a

shower due to concerns related to falling. (Tr. 41.)

3. The ALJ’s Decision

The ALJ issued his decision on January 21, 2020. (Tr. 15-23.) At step

one of the sequential evaluation process,10 the ALJ found that Plaintiff had

not engaged in substantial gainful activity since her alleged disability onset

date. (Tr. 17.) At step two, the ALJ found that Plaintiff’s epilepsy was a

severe impairment. (Tr. 17-18.) The ALJ also discussed Plaintiff’s diabetes

and hypothyroidism, as well as her depression and anxiety, but found them to

be non-severe. (Tr. 18.) At step three, the ALJ found that Plaintiff did not

have an impairment or combination of impairments that met or medically

equaled the severity of one of the listed impairments. (Tr. 19.)

Then, prior to step four, the ALJ found that Plaintiff had the RFC to

perform a reduced range of light work as follows:

She can lift, carry, and push/pull twenty pounds occasionally and

ten pounds frequently; she can stand/walk for six hours in an

eight-hour workday; she can sit for six hours in an eight-hour

workday; she can occasionally climb ramps and stairs; she can

never climb ladders, ropes, or scaffolds; she can occasionally

balance and stoop; she can frequently kneel, crouch, and crawl;

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

See 20 C.F.R. § 404.1520(a)(4).

she can never work in proximity to moving mechanical parts; she

can never work at high, exposed places; she is limited to work

that requires no interaction with crowds; however, she can work

frequently with the public, co-workers, and supervisors.

(Id.) The ALJ summarized some of the pertinent evidence as follows:

The medical evidence supports the restrictions identified in the

[RFC]. A summary of the claimant’s medi[c]al history in October

of 2019 noted that the claimant had a significant history of

seizure disorder. She reported difficulties with focusing, memory

loss, and increase in stress and anxiety. (Exhibit 6-F, page 1[.])

The Claimant has had seizures since childhood. (Exhibit 2-F,

page 2[.]) In July of 2018, the claimant reported weekly seizures.

It was noted she suffered a fall related to a seizure. (Exhibit 1-F,

page 1[.]) She has had complaints of dizziness. (Exhibit 2-F,

page 2[.]) An EEG recording was described as abnormal.

However, there was no evidence of any focal or generalize[d]

slowing or asymmetry of background rhythms. Findings were

consistent with epilepsy. (Exhibit 6-F, page 7[.]) An MRI of the

brain showed flair in the left parasagittal and white frontal deep

matter with no enhancements. (Exhibit 8-F, page 1[.]) The

claimant reported in August of 2019 that she usually gets

seizures early in the morning. (Exhibit 8-F, page 1[.]) However,

the record does not document seizures on a daily basis.

Based on the claimant’s epilepsy, the [ALJ] has included a

restriction to light exertion work, as well as limitation on

climbing, working at heights, and working with moving

mechanical parts.

As noted earlier, the claimant is not subject to severe mental

impairments. However, the [ALJ] included a restriction to

working in crowds based on the claimant’s epilepsy.

Despite the allegation of disability, it is noted that the record

contains some examinations with relatively unremarkable

findings. (Exhibit 3-F, page 3[.]) It was noted in July of 2018

that the claimant was alert and in no acute distress. She was

oriented to person, place, time, and situation. (Exhibit 1-F, page

3[.]) She had a steady gait. (Exhibit 1-F, page 4[.])

(Tr. 20.)

Further, the ALJ summarized the opinion of the State agency physician

who reviewed Plaintiff’s record at the reconsideration level as follows:

This source was of the opinion the claimant is able to work at the

light exertion level. (Exhibit 3-A, page 10[.]) It was noted that

she could never climb ladders, ropes, or scaffolds, but could

perform unlimited climbing of ramps and stairs. (Exhibit 3-A,

page 11[.]) It was noted that she should avoid concentrated

exposure to vibration and hazards. (Exhibit 3-A, page 12[.]) It is

noted that this opinion is consistent with other evidence, notably

the claimant’s history of treatment for epilepsy. (Exhibits 1-F, 2-

F, 6-F, 8-F[.]) The opinion is also supported by this source’s

explanatory statements with references to the record. (Exhibit 3-

A, pages 7 and 12[.]) The undersigned has found this opinion to

be persuasive; however, the undersigned notes that the record as

a whole is supportive of more limitations, including restrictions

related to working around crowds and balancing restrictions.

(Tr. 20-21.)

Regarding Plaintiff’s allegations and reported daily activities, the ALJ

made the following observations and findings:

The claimant alleges that she is disabled and unable to work due

to her impairments. She noted she has frequent seizures which

leave her incapacitated for the day. She noted partial seizures

three to four times per week that keep her from doing anything

for several hours. (Exhibit 12-E, page 1[.]) However, this

frequency and degree of seizures is not documented by this

medical record.

With respect to the claimant’s allegations, the undersigned has

considered the claimant’s activities of daily living. The record

indicates that the claimant is somewhat active. The claimant

state in August 2019 that she was able to handle the activities of

daily living without assistance. It was noted she was able to

complete the majority of routine daily tasks. (Exhibit 8-F, page

1[.]) She noted she is able to clean, do laundry and pay bills.

(Exhibit 12-E, page 3[.]) She noted hobbies and interests[,]

including reading, crocheting, playing the piano and watching

television. (Exhibit 12-E, page 5[.]) She stated she goes to

church on Sundays. (Exhibit 12-E, page 5[.])

It was noted in September of 2018 that the claimant was able to

play piano for her church and at home and did not have any real

issues playing the piano. The claimant stated that she loved to

play the piano and teach people how to play the piano. She

indicated that she had no issues counting change, or balancing a

checkbook. She stated she handles the family budget and pays

the bills. She noted she was able to grocery shop but her

husband had to drive[] since she was unable to [d]rive due to her

seizure disorder. It was noted she was able to prepare her own

meals. (Exhibit 1-A, page 7[.]) This level of activity is

inconsistent with the claimant’s allegation of disability.

(Tr. 21.)

Further, the ALJ reviewed Plaintiff’s treatment history as follows:

The claimant has been prescribed medication appropriate for her

established impairments. However, the record does not suggest

that she fails to receive significant relief of symptoms with the

use of medication. Medication has included Keppra. (Exhibit 1-

F, page 2[.]) Tegretol has been prescribed. (Exhibit 2-F, page

5[.]) She has used Topamax. (Exhibit 7-F, page 21[.]) The

claimant reported that she was compl[ia]nt with medication and

does not experience side effects. (Exhibit 6-F, page 1[.])

(Id.)

As to Plaintiff’s work history, the ALJ stated:

[T]he claimant has engaged in considerable work activity since

her alleged onset of disability, some of it near the level considered

to be substantial gainful activity; the claimant testified that she

currently earns $1,000 per month. This evidence contradicts the

claimant’s statements that she believes she is unable to work.

(Id.) Ultimately, the ALJ found that Plaintiff’s “medically determinable

impairments could reasonably be expected to cause the alleged symptoms,”

but her “statements concerning the intensity, persistence and limiting effects

of these symptoms [were] not entirely consistent with the medical evidence

and other evidence in the record.” (Tr. 21-22.)

At step four, the ALJ found that Plaintiff was unable to perform any of

her past relevant work. (Tr. 22.) At the fifth and final step, the ALJ

determined that there were jobs existing in significant numbers in the

national economy that Plaintiff could perform, such as a mail clerk, a

garment sorter, and an office helper. (Tr. 22-23.)

D. Analysis

Turning to Plaintiff’s second argument on appeal, the Court finds the

ALJ’s statements related to Plaintiff’s medical record and subjective

complaints are not supported by substantial evidence in the record. The ALJ

found that while Plaintiff’s medically determinable impairments could

reasonably be expected to cause her alleged symptoms, Plaintiff’s statements

concerning the intensity, persistence, and limiting effects of those symptoms

were “not entirely consistent with the medical evidence and other evidence of

record.” (Tr. 21-22.) While the ALJ acknowledged Plaintiff’s “significant

history of seizure disorder” since childhood and noted the abnormal EEG

findings, the ALJ also underscored what he deemed to be “unremarkable

findings” in Plaintiff’s record. (Tr. 20.) For example, the ALJ underscored

Plaintiff’s steady gait, lack of acute distress, and ability to remain alert. (Tr.

20, 303-06, 327.) These unremarkable findings, however, do not necessarily

relate to Plaintiff’s epilepsy and/or to the symptoms and limitations from her

condition. The ALJ also emphasized that the record did “not document

seizures on a daily basis” (Tr. 20); however, neither Plaintiff nor her medical

providers have claimed that she suffered from daily seizures.

In addition to underscoring findings unrelated to Plaintiff’s epilepsy

and resulting limitations, the ALJ made statements that are not supported

by the record. In discussing Plaintiff’s allegations, the ALJ stated:

The claimant alleges that she is disabled and unable to work due

to her impairments. She noted she has frequent seizures which

leave her incapacitated for the day. She noted partial seizures

three to four times per week that keep her from doing anything

for several hours. . . . However, this frequency and degree of

seizures is not documented by this medical record.

(Tr. 21.) Contrary to the ALJ’s statement, the frequency and degree of

seizures alleged by Plaintiff are documented in the record. The record is

replete with on-going treatment notes from Dr. Ortolani and physicians at

the Orlando Epilepsy Center, showing longitudinal records related to

enduring, frequent seizures. (Tr. 312-14, 316-17, 320, 333, 335-38, 346-49,

352, 361.) Between June 2018 and March 2019, Plaintiff was seen by Dr.

Ortolani at least five times, reporting for follow-up appointments as directed.

(Tr. 312-14, 316-17, 333, 336, 338.) Dr. Ortolani repeatedly referenced

Plaintiff’s “breakthrough seizures” and “jerks [that] occur daily.” (Tr. 312-14,

333.) Contrary to the ALJ’s findings, Plaintiff’s medical records show

frequent seizures, leaving Plaintiff incapacitated for the day, along with

partial seizures or “random jerks” three to four times a week.

While, at times, the record shows periods of no seizures, such periods

seem to be temporary and unpredictable. For example, in January 2019, Dr.

Ortolani noted that Plaintiff suffered “no new major seizures since her last

visit,” but underscored that Plaintiff still suffers “mild episodes.” (Tr. 338.)

Despite some improvement in the frequency of her seizures, the record shows

that Plaintiff continued to have weekly seizures. For example, treatment

notes from March 2019 show that Plaintiff’s medication “[b]rought [the]

seizures [down] from 3-4 [times] a week, to [two times] a week.” (Tr. 337.)

The treatment notes from September 2019 show that Plaintiff was having

multiple seizures per week, with “bodily jerks” three to four times a week.

(Tr. 349.) Moreover, Plaintiff’s medical record shows confusion and “crying

spells” associated with the seizures, as well as Plaintiff biting her tongue and

suffering head-related trauma as a result of seizure-related falls. (Tr. 303-04,

338, 349.) As such, the ALJ’s statement that the “frequency and degree of

seizures is not documented by [the] medical record” is not supported by

substantial evidence.

The ALJ also reviewed Plaintiff’s course of treatment and use of

prescription medications, highlighting that Plaintiff “ha[d] been prescribed

medication appropriate for her established impairments.” (Tr. 21.) The ALJ

went on to state, however, that the “record [did] not suggest that [Plaintiff]

fail[ed] to receive significant relief of symptoms with the use of medication,”

and cited her medication compliance and lack of adverse side effects. (Id.)

Although Plaintiff was routinely prescribed medication like Topamax,

Keppra, and Tegretol, was compliant with it, and suffered no adverse side

effects, substantial evidence does not support the ALJ’s statement that “the

record [did] not suggest that [Plaintiff] fail[ed] to receive significant relief of

symptoms with use of medication.” (Id.)

For example, in June 2018, Dr. Ortolani noted that an increase of

Keppra was required “as [Plaintiff was] having breakthrough seizures.” (Tr.

312-14.) A month later, in July 2018, Plaintiff reported no seizures since

starting her new medication, but by November 2018, she stated that since

her last visit, her random jerks had increased. (Tr. 316, 333.) In March

2019, Dr. Ortolani noted that although Plaintiff’s “medication [was] working

to keep the majority of [her] seizures under control,” Plaintiff still

experienced seizures twice a week. (Tr. 336-37.) In August 2019, Plaintiff

continued to report weekly seizures and frequent bodily jerks, resulting in

confusion. (Tr. 329.) Thus, the ALJ’s review of Plaintiff’s medical treatment

and efficacy of medications is not supported by substantial evidence.

Further, the hearing testimony supports the observations and findings

in the medical records, including the recent increase in seizures and bodily

jerks and the resulting injuries to Plaintiff. (See, e.g., Tr. 38 (noting

Plaintiff’s seizure from the night before the hearing and Plaintiff’s weekly

seizures since September 2019); Tr. 40-41 (discussing Plaintiff’s injuries from

a seizure that happened in the shower).)

In sum, the ALJ’s statement that Plaintiff’s subjective complaints

related to the “intensity, persistence, and limiting effects of [her] symptoms

[were] not entirely consistent with the medical evidence and other evidence in

the record” is not supported by substantial evidence. Of note, immediately

prior to discrediting Plaintiff’s allegations related to the intensity and

limiting effects of her symptoms, the ALJ also made the following statement,

which is inconsistent with the rest of the ALJ’s opinion: “Based on this

discussion, the undersigned finds that the claimant’s allegations are

reasonably consistent with the medical evidence and other evidence in the

record.” (Tr. 21.) Furthermore, the ALJ only broadly and indirectly referred

to Plaintiff’s medical record, and did not mention any specific medical

provider in the decision. The ALJ only assessed the persuasiveness of one

State agency, non-examining physician and generically stated that the

“opinion [was] consistent with other evidence” and “supported by this source’s

explanatory statements with references to the record,” without providing

more specific reasons for finding the opinion to be persuasive. (Tr. 20.)

Therefore, on remand, the ALJ will have an opportunity to reconsider

Plaintiff’s subjective complaints and medical records, and explain how any

medical opinions in those records have been assessed. In light of this

conclusion, it is unnecessary to address Plaintiff’s remaining arguments. See

Jackson v. Bowen, 801 F.2d 1291, 1294 n.2 (11th Cir. 1986) (per curiam);

Freese v. Astrue, No. 8:06-cv-1839-T-EAJ, 2008 WL 1777722, *3 (M.D. Fla.

Apr. 18, 2008); see also Demenech v. Sec’y of the Dep’t of Health & Hum.

Servs., 913 F.2d 882, 884 (11th Cir. 1990) (per curiam).

Accordingly, it is ORDERED:

1. The Commissioner’s decision is REVERSED pursuant to

sentence four of 42 U.S.C. § 405(g) and REMANDED with instructions to the

ALJ to (a) reconsider Plaintiff’s subjective complaints and Plaintiff’s medical

records, including those from Dr. Ortolani and the Orlando Epilepsy Center,

and explain how any medical opinions in those records have been assessed;

(b) reconsider the RFC assessment, if necessary; and (c) conduct any further

proceedings deemed appropriate.

2. The Clerk of Court is directed to enter judgment consistent with

this Order, terminate any pending motions, and close the file.

3. The judgment should state that if Plaintiff were to ultimately

prevail in this case upon remand to the Social Security Administration, any §

406(b) or § 13883(d)(2) fee application must be filed within the parameters set

forth by the Standing Order on Management of Social Security Cases entered

in In re: Administrative Orders of the Chief Judge, Case No.: 3:21-mc-1-TJC

(M.D. Fla. Dec. 7, 2021).

DONE AND ORDERED at Jacksonville, Florida, on March 15, 2022.

□ MONTE C. RICHARDSON

UNITED STATES MAGISTRATE JUDGE

Copies to:

Counsel of Record

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