Von Achen v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

SUZANNE VON ACHEN,

Plaintiff,

v. Case No: 6:20-cv-1979-LHP

COMMISSIONER OF SOCIAL

SECURITY

Defendant.

MEMORANDUM OF DECISION1

Suzanne Von Achen (“Claimant”) appeals the final decision of the

Commissioner of Social Security (“the Commissioner”) denying her application for

Disability Insurance Benefits (“DIB”). (Doc. 1). Claimant raises three 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. 30, at 14, 18, 41, 48). The Commissioner asserts that the

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

evidence and decided according to the proper legal standards and should therefore

be affirmed. (Id., at 48). For the reasons stated herein, the Commissioner’s final

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

Judge. See Docs. 23-25.

decision is REVERSED and REMANDED for further proceedings pursuant to

sentence four of 42 U.S.C. § 405(g).

I. PROCEDURAL HISTORY.

On July 12, 2018, Claimant filed an application for DIB, alleging a disability

onset date of January 1, 2010. (R. 23, 173-74, 185).2 Claimant’s application was

denied initially and on reconsideration, and she requested a hearing before an ALJ.

(R. 82-90, 93-103, 118-19). A hearing was held before the ALJ on December 16, 2019,

during which Claimant was represented by an attorney. (R. 41-70). 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. 20-39). Claimant sought review of the ALJ’s

decision by the Appeals Council. (R. 167-69). On September 9, 2020, the Appeals

Council denied the request for review. (R. 1-6). Claimant now seeks review of

the final decision of the Commissioner by this Court. (Doc. 1).

2 Claimant initially alleged an onset date of January 8, 2001, but later amended her alleged

onset date to January 1, 2010. See R. 23, 185.

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). (R. 24-34).4 The

ALJ found that Claimant last met the insured status requirements of the Social

Security Act on June 30, 2010. (R. 25). The ALJ also found that Claimant had not

engaged in substantial gainful activity during the period from her alleged onset

date of January 1, 2010, through her date last insured. (R. 26). The ALJ concluded

that, through the date last insured, Claimant suffered from multiple sclerosis, a

severe impairment. (Id.).5 The ALJ concluded that Claimant did not have an

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

facts of record in the Joint Memorandum. (Doc. 30). 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)).

5 The ALJ found that Claimant’s history of malignant myeloma and Herpes simplex virus

2 were nonsevere impairments, and that Claimant’s anxiety was not a medically determinable

impairment due to a lack of objective evidence. (R. 26).

impairment or combination of impairments that met or equaled a listed impairment

in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 26-27).

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

functional capacity (“RFC”), through the date last insured, to perform sedentary

work as defined in the Social Security regulations,6 except that Claimant:

[could] occasionally climb ramps and stairs; never climb ladders, ropes

or scaffolds; never balance; occasionally stoop, kneel, crouch or crawl;

must avoid workplace hazards such as unprotected heights, moving

mechanical parts or operating heavy machinery; must avoid operating

a motor vehicle; must avoid extreme temperatures, vibrating surfaces

and tools; requires level and even flooring and walking surface for safe

ambulation; and need the frequent use of a cane or walker.

(R. 27).

Based on this assessment, the ALJ concluded that through the date last

insured, Claimant was not capable of performing her past relevant work, which

included work as a travel agent. (R. 32-33). However, the ALJ found that,

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

testimony of the VE, Claimant was capable of making a successful adjustment to

6 The social security regulations define sedentary work to include:

lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like

docket files, ledgers, and small tools. Although a sedentary job is defined as one which

involves sitting, a certain amount of walking and standing is often necessary in carrying

out job duties. Jobs are sedentary if walking and standing are required occasionally and

other sedentary criteria are met.

20 C.F.R. § 404.1567(a).

other work that exists in significant numbers in the national economy. (R. 33-34).

Specifically, the ALJ found that Claimant would have been able to perform the

requirements of representative occupations such as: document preparer, call out

operator, and surveillance system monitor. (Id.). Accordingly, the ALJ concluded

that Claimant was not under a disability, as defined in the Social Security Act, at

any time from January 1, 2010 (the alleged onset date) through June 30, 2010 (the

date last insured). (R. 34).

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

three assignments of error: (1) the ALJ improperly denied Claimant’s request to

amend the protective filing date, (2) the ALJ erred in evaluating the medical

opinions of Dr. Malinda Newcombe, M.D. and Dr. Timothy Carter, M.D., and (3)

the Appeals Council erred in determining that post-hearing evidence submitted to

it by Claimant was not material. (Doc. 30, at 14, 19, 41). The Court will limit its

discussion to Claimant’s second assignment of error, particularly with respect to

Dr. Carter’s opinions, as it is 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 application for DIB on July 12, 2018. (R. 23, 173-74).

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. 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). 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. Id. § 404.1520c(c).

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).

Rather, under the regulations, the most important factors the Commissioner will

consider when determining the persuasiveness of medical opinions are

supportability and consistency. Id. § 404.1520c(b)(2). The regulations state that

the Commissioner will explain how she considered the supportability and

consistency factors in the determination or decision. Id. Thus, “[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.” Freyhagen v. Comm’r of Soc. Sec. Admin., No.

3:18-cv-1108-J-MCR, 2019 WL 4686800, at *2 (M.D. Fla. Sept. 26, 2019) (quoting

Mudge v. Saul, No. 4:18CV693CDP, 2019 WL 3412616, at *4 (E.D. Mo. July 29, 2019)).

See also Bolton v. Comm’r of Soc. Sec. Admin., No. 6:20-cv-1900-DNF, 2021 WL 5231760,

at *7 (M.D. Fla. Nov. 10, 2021) (finding no error where ALJ did not address in the

decision any factors other than supportability and consistency) (citing Torres v.

Comm'r of Soc. Sec., No. 6:19-cv-1662-ORL-PDB, 2020 WL 5810273, at *2 (M.D. Fla.

Sept. 30, 2020))).

Dr. Timothy Carter, M.D. and Dr. Malinda Newcombe, M.D., Claimant’s

treating physicians, each completed a Multiple Sclerosis Medical Source Statement

form on behalf of Claimant. (R. 1386-89, 1390-93). However, as stated above, the

Court focuses only on Dr. Carter’s Statement, which is dated February 4, 2019. In

the Statement, Dr. Carter reported that he based his answers and opinions

contained therein on his review of medical records from February 15, 2000 through

June 21, 2018, his examination of Claimant, and his relationship with Claimant as

Claimant’s treating physician. (R. 1390-93). Dr. Carter stated that he first saw

Claimant on December 16, 2009 and has regularly seen her since June 1, 2011. (R.

1390). Dr. Carter stated that Claimant has a diagnosis of multiple sclerosis and

identified a number of symptoms and signs of the impairment in Claimant,

including: chronic fatigue, balance problems, paresthesias, weakness, tremors,

blurred vision, depression, difficulty remembering, sensitivity to heat, unstable

walking, pain, muscle spasticity, muscle fatigue of limb, vertigo, double vision,

bladder problems, emotional lability, loss of manual dexterity, poor coordination,

numbness, static tremor, dimness of vision, other vision disturbance, and difficulty

solving problems. (Id.).

Dr. Carter opined that Claimant could walk half of a city block without rest

or severe pain and could sit and stand/walk for less than two hours over an 8-hour

workday. (R. 1391). He opined that Claimant could sit for 15 minutes at one time

before needing to get up, and that she could stand for 15 to 20 minutes at one time

before needing to sit down or walk around. (Id.). Dr. Carter further opined that

Claimant would require a job that permits shifting positions at will from sitting,

standing, or walking, and Claimant’s chronic fatigue and pain/paresthesias, and

numbness would require Claimant to take unscheduled breaks during the

workday, with such breaks occurring at least hourly and of a variable duration.

(Id., 1391-92).

Dr. Carter stated that Claimant was required to use a walker due to

incoordination, imbalance, and chronic fatigue. (R. 1392). He opined that

Claimant could rarely lift/carry less than ten pounds and never lift/carry ten

pounds or more, and she could never twist, stoop, or crouch/squat. (Id.). Dr.

Carter found that Claimant has significant limitations with reaching, handling, or

fingering, due to incoordination, spasticity, and sensory loss/numbness. (Id.).

He opined that Claimant was likely to be “off task” 25% or more of a typical

workday, she was incapable of even “low stress” work, and her impairments would

cause her to be absent from work more than four days per month. (R. 1393). In

response to the question, “[w]hat is the earliest date that the description of

symptoms and limitations in this questionnaire applies?,” Dr. Carter responded:

“[Claimant] reported vision issues as early as 2001.” (Id.).

In her decision, the ALJ summarized Dr. Carter’s opinion and thereafter

evaluated the opinion as follows:

On February 4, 2019, Dr. Timothy Carter provided multiple sclerosis

medical source statement regarding the claimant’s condition. Dr.

Carter opined that the claimant can sit, stand or walk for less than 2

hours. She needed a job that permitted shifting positions at will from

sitting, standing or walking. She needed to take unscheduled breaks

during a working day. She can rarely lift and carry less than 10

pounds. She can never twist, stoop or crouch. She would be off task

25% or more. She was incapable of even low stress work. She would

be absent from work more than four days per month. With respect to

the earliest date that the description of symptoms and limitations in the

statement, the claimant reported that she had vision issues as early as

2001. (Exhibit 15F).

The undersigned found the opinion of Dr. Carter not persuasive

because it was not consistent or supported by the record. The

claimant’s response was not responsive to the ultimate question of

when the residual functional capacity existed.

(R. 32). This is the entirety of the ALJ’s discussion of Dr. Carter’s opinion.

Claimant argues that the ALJ’s finding with respect to the opinion of Dr.

Carter was conclusory, and thus insufficient under the SSA’s regulations, which

require the ALJ to explain the supportability and consistency factors when

evaluating the persuasiveness of a medical opinion. (Doc. 30, at 24-26). Claimant

further argues that while she agrees with the ALJ’s statement that Dr. Carter’s

opinion was not responsive to the “ultimate question” of when Claimant’s

symptoms and limitations began (i.e., when Dr. Carter’s opined RFC existed), the

ALJ should have recontacted Dr. Carter for clarification. (Id., at 25).

In response, the Commissioner argues that the ALJ was not required to

specifically identify all of the evidence that does not support or is inconsistent with

a medical opinion, and that the ALJ’s decision when read as a whole, lends support

for the ALJ’s findings as to Dr. Carter. (Doc. 30, at 29-30). The Commissioner

further argues that the ALJ was not obligated to recontact Dr. Carter for clarification

on the question of when the opined limitations began. See id., at 26-41.

On review, the Court agrees with Claimant that the ALJ erred by failing to

adequately address the supportability and consistency factors. While the ALJ

stated that Dr. Carter’s opinion was “not persuasive because it was not consistent

or supported by the record,” the ALJ failed to point to any medical records that

contradict the findings made by Dr. Carter; in other words, the ALJ failed to provide

any explanation or citation to the record with respect to the consistency factor.7

Accordingly, the Court finds that the ALJ reversibly erred. See 20 C.F.R. §

404.1520c(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”) (emphasis supplied);

Brown v. Comm'r of Soc. Sec., No. 6:20-cv-840-GJK, 2021 WL 2917562, at *4 (M.D. Fla.

7 Further, the ALJ’s statement that Dr. Carter’s opinion “was not responsive to the ultimate

question of when the residual functional capacity existed” is less than clear, and as such, the Court

cannot find this statement to establish that the ALJ addressed either the supportability or

consistency factors.

July 12, 2021) (collecting cases where failure to address supportability and

consistency factors in decision was reversible error); Pierson v. Comm'r of Soc. Sec.,

No. 6:19-cv-01515-RBD-DCI, 2020 WL 1957597, at *6 (M.D. Fla. Apr. 8, 2020) (“As

an initial matter, the new regulations require an explanation, even if the ALJ (and

the Commissioner) believe an explanation is superfluous.”), report and

recommendation adopted, 2020 WL 1955341 (M.D. Fla. Apr. 23, 2020). See also Starman

v. Kijakazi, No. 2:20-cv-00035-SRC, 2021 WL 4459729, at *5 (E.D. Mo. Sept. 29, 2021)

(“[A]n ALJ’s failure to address either the consistency or supportability factors in

assessing the persuasiveness of a medical opinion requires reversal.”).

Importantly, “[i]t is not the district court’s role on review to scour the entirety

of the record, with no guidance from the ALJ, in an attempt to divine what record

evidence the ALJ believes creates unspecified inconsistencies with the particular

opinions the ALJ has given partial [or no] weight.” Pierson, 2020 WL 1957597, at *4

(citing Hanna v. Astrue, 395 F. App'x 634, 636 (11th Cir. 2010) (“The ALJ must state

the grounds for his decision with clarity to enable us to conduct meaningful

review.”)). See also Brown, 2021 WL 2917562, at *4 (“[T]he ALJ cannot merely

summarize the evidence, as a whole, and then conclude that [medical] opinions are

not consistent with the evidence as a whole. Rather, the ALJ must build a logical

analytical bridge explaining what particular evidence undermined [the medical]

opinions and why.” (quoting Michael v. Saul, No. 2:20cv238, 2021 WL 1811736, at *11

(N.D. Ind. May 6, 2021))).

In general, the Commissioner is correct that the ALJ’s statements in the

decision should not be read in isolation, and that the decision should be considered

as a whole. See generally Davis v. Comm'r of Soc. Sec., No. 2:10-cv-673-FtM-DNF,

2011 WL 5826553, at *1, 13 (M.D. Fla. Nov. 18, 2011) (noting that the district court’s

review is limited to considering whether the ALJ’s decision as a whole is supported

by substantial evidence). However, upon consideration of the entirety of the ALJ’s

decision, it is not clear what portions of the record the ALJ relied upon in finding

Dr. Carter’s opinion inconsistent with the medical evidence of record, and

ultimately concluding that Dr. Carter’s opinion was unpersuasive. And for the

Court to attempt to guess what particular records support the ALJ’s decision with

respect to Dr. Carter’s decision would require the Court to reweigh the evidence—

which it may not do. See Pierson, 2020 WL 1957597, at *4; Bloodsworth, 703 F.2d at

1239.

In sum, because the ALJ failed to adequately address the supportability and

consistency factors in evaluating the opinion of Dr. Carter, the Court finds that the

ALJ’s decision is not supported by substantial evidence, and will remand this case

for further administrative proceedings. See Brown, 2021 WL 2917562, at *4 (finding

reversible error where the ALJ failed to “articulate the persuasiveness of all medical

opinions in the case record” under the new SSA regulations); Brandy T. v. Saul, No.

1:20-cv-2994-SVH, 2021 WL 1851378, at *13-14 (D.S.C. May 10, 2021) (ALJ reversibly

erred in conclusory rejection of physician opinion for failure to adequately address

supportability and consistency factors as required by new regulations).

Given that reversal is necessary on the bases discussed herein, the Court

declines to address Claimant’s remaining arguments. See 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). On remand, the ALJ

must address the remaining issues raised by Claimant, including whether: the ALJ

improperly denied Claimant’s request to amend the protective filing date, the ALJ

properly evaluated the opinion of Dr. Newcombe, and the Appeals Council

properly determined that the post-hearing evidence submitted by Claimant was not

material. See Diorio v. Heckler, 721 F.2d 726, 729 (11th Cir. 1983) (on remand the ALJ

must reassess the entire record).8

V. CONCLUSION.

Based on the foregoing, it is ORDERED that:

8 This is not to say that the ALJ erred with respect to any of these other issues, but rather

simply that the ALJ must consider and reassess the entire record upon remand.

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).

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 March 21, 2022.

LESLIE 3 AN PRICE

UNITED STATES MAGISTRATE JUDGE

Copies furnished to:

Counsel of Record

ag