Wynn v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

LASHON WYNN,

Plaintiff,

v. Case No. 8:20-cv-2862 -SPF

KILOLO KIJAKAZI,1

Acting Commissioner of the

Social Security Administration,

Defendant.

__________________________________/

ORDER

Plaintiff seeks judicial review of the denial of his claim for a period of disability

and disability insurance benefits (“DIB”). Based on a review of the record, the briefs, and

the applicable law, the Commissioner’s decision is REVERSED and REMANDED

under sentence four of 42 U.S.C. § 405(g).

I. Procedural Background

Plaintiff filed an application for a period of disability and DIB (Tr. 221-22). The

Commissioner denied Plaintiff’s claims both initially and upon reconsideration (Tr. 124-

42, 152-54). Plaintiff then requested an administrative hearing (Tr. 162-63). Per Plaintiff’s

request, the Administrative Law Judge (“ALJ”) held a hearing at which Plaintiff appeared

and testified (Tr. 53-106). Following the hearing, the ALJ issued an unfavorable decision

1 Kilolo Kijakazi became the Acting Commissioner of Social Security on July 9, 2021 and

is substituted as Defendant in this suit pursuant to Rule 25(d) of the Federal Rules of Civil

Procedure.

finding Plaintiff not disabled and accordingly denied Plaintiff’s claims for benefits (Tr. 33-

45). Subsequently, Plaintiff requested review from the Appeals Council (Tr. 15), which

the Appeals Council denied (Tr. 1-4). Plaintiff then timely filed a complaint with this

Court (Doc. 1). The case is now ripe for review under 42 U.S.C. §§ 405(g), 1383(c)(3).

II. Factual Background and the ALJ’s Decision

Plaintiff was born on September 25, 1972 and claims disability beginning August

30, 2014 (Tr. 221-22). He has a college education and graduated from law school (Tr. 70-

71). Plaintiff’s past relevant work experience was as a high school teacher and as a

contracting officer in the military (Tr. 60-63). Plaintiff initially alleged disability due to

narcolepsy; sleep apnea; major depressive disorder; generalized anxiety disorder; post-

traumatic stress disorder (“PTSD”); herniated discs; and degenerative joint disease (Tr.

125).

In rendering the administrative decision, the ALJ concluded that Plaintiff last met

the insured status requirements on December 31, 2019 and had not engaged in substantial

gainful activity during the period from his alleged onset date of August 30, 2014 through

his date last insured of December 31, 2019 (Tr. 35-36). After conducting a hearing and

reviewing the evidence of record, the ALJ determined Plaintiff had the following severe

impairments: degenerative disc disease of the cervical and lumbar spine, degenerative joint

disease of bilateral knees, obstructive sleep apnea and narcolepsy, generalized anxiety

disorder, major depressive disorder, and PTSD (Tr. 36). Notwithstanding these

impairments, the ALJ determined Plaintiff did not have an impairment or combination of

impairments that met or medically equaled one of the listed impairments in 20 C.F.R.

Part 404, Subpart P, Appendix 1 (Id.). The ALJ then concluded that Plaintiff retained the

residual functional capacity (“RFC”) to perform light work with exertional and non-

exertional limitations (Tr. 38).2 In formulating Plaintiff’s RFC, the ALJ considered

Plaintiff’s subjective complaints and determined that, although the evidence established

the presence of underlying impairments that reasonably could be expected to produce the

symptoms alleged, Plaintiff’s statements as to the intensity, persistence, and limiting

effects of his symptoms were not entirely consistent with the medical evidence and other

evidence (Tr. 39).

Considering Plaintiff’s impairments and the assessment of a vocational expert

(“VE”), the ALJ determined Plaintiff could not perform his past relevant work but could

work as an address clerk, surveillance system monitor, and inspector (Tr. 43-44).

Accordingly, based on Plaintiff’s age, education, work experience, RFC, and the

testimony of the VE, the ALJ found Plaintiff not disabled from August 30, 2014, through

the date last insured (December 31, 2019) (Tr. 43-44).

2 These limitations are: “can lift and carry, and push and pull 20 pounds occasionally and

10 pounds frequently, sit for 6 hours, stand for 2 hours, and walk for 2 hours. [Plaintiff] is

limited to occasional reaching overhead bilaterally, frequent reaching in all other

directions bilaterally, and frequent handling and fingering bilaterally. The claimant is

limited to occasionally climbing ramps and stairs, and ladders, ropes, and scaffolds, and

occasionally stooping, kneeling, crouching, and crawling. He can occasionally work at

unprotected heights, around moving, mechanical parts, operating a motor vehicle, and

around vibration. The claimant is able to perform simple, routine tasks and make simple,

work decisions defined as no more than reasoning level 3 in the DOT. He is able to

interact occasionally with supervisors, coworkers, and the public, and can adapt to gradual

changes in the work setting.” (Tr. 38).

III. Legal Standard

To be entitled to benefits, a claimant must be disabled, meaning he or she must be

unable to engage in any substantial gainful activity by reason of any medically

determinable physical or mental impairment which can be expected to result in death or

which has lasted or can be expected to last for a continuous period of not less than twelve

months. 42 U.S.C. § 423(d)(1)(A). A “physical or mental impairment” is an impairment

that results from anatomical, physiological, or psychological abnormalities, which are

demonstrable by medically acceptable clinical and laboratory diagnostic techniques. 42

U.S.C. § 423(d)(3).

The Social Security Administration, to regularize the adjudicative process,

promulgated the detailed regulations currently in effect. These regulations establish a

“sequential evaluation process” to determine whether a claimant is disabled. 20 C.F.R. §

404.1520. If an individual is found disabled at any point in the sequential review, further

inquiry is unnecessary. 20 C.F.R. § 404.1520(a). Under this process, the ALJ must

determine, in sequence, the following: whether the claimant is currently engaged in

substantial gainful activity; whether the claimant has a severe impairment, i.e., one that

significantly limits the ability to perform work-related functions; whether the severe

impairment meets or equals the medical criteria of 20 C.F.R. Part 404 Subpart P,

Appendix 1; and whether the claimant can perform his or her past relevant work. If the

claimant cannot perform the tasks required of his or her prior work, step five of the

evaluation requires the ALJ to decide if the claimant can do other work in the national

economy in view of his or her age, education, and work experience. 20 C.F.R. §

404.1520(a). A claimant is entitled to benefits only if unable to perform other work. Bowen

v. Yuckert, 482 U.S. 137, 140-42 (1987); 20 C.F.R. § 404.1520(g).

A determination by the Commissioner that a claimant is not disabled must be

upheld if it is supported by substantial evidence and comports with applicable legal

standards. See 42 U.S.C. § 405(g). Substantial evidence is “such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales,

402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)

(internal quotation marks omitted)); Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996).

While the court reviews the Commissioner’s decision with deference to the factual

findings, no such deference is given to the legal conclusions. Keeton v. Dep’t of Health &

Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994) (citations omitted).

In reviewing the Commissioner’s decision, the court may not re-weigh the evidence

or substitute its own judgment for that of the ALJ even if it finds that the evidence

preponderates against the ALJ’s decision. Bloodsworth v. Heckler, 703 F.2d 1233, 1239

(11th Cir. 1983). The Commissioner’s failure to apply the correct law, or to give the

reviewing court sufficient reasoning for determining that he or she has conducted the

proper legal analysis, mandates reversal. Keeton, 21 F.3d at 1066. The scope of review is

thus limited to determining whether the findings of the Commissioner are supported by

substantial evidence and whether the correct legal standards were applied. 42 U.S.C. §

405(g); Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002).

IV. Analysis

Plaintiff argues that the ALJ improperly evaluated the opinions of Plaintiff’s

psychologist, Dr. Vickie E.H. Nichols, and of Plaintiff’s sleep medicine specialist, Ms.

Sarah Richter. For the reasons that follow, the ALJ erred in evaluating the opinion

evidence.

Plaintiff first argues that the ALJ improperly evaluated the opinion of Plaintiff’s

psychologist, Dr. Vickie E.H. Nichols and did not offer a sufficient justification for finding

Dr. Nichol’s opinion to be unpersuasive. Before March 27, 2017, Social Security

Administration (“SSA”) regulations codified the treating physician rule, which required

the ALJ to assign controlling weight to a treating physician’s opinion if it was well

supported and not inconsistent with other record evidence. See 20 C.F.R. § 404.1527(c).

Under the treating physician rule, if an ALJ assigned less than controlling weight to a

treating physician’s opinion, he or she had to provide good cause for doing so.

See Winschel v. Comm'r of Soc. Sec, 631 F.3d 1176, 1178-79 (11th Cir. 2011).

In this case, however, revised SSA regulations (published on January 18, 2017, and

effective on March 27, 2017) apply because Plaintiff filed his claim on December 4, 2018

(see Tr. 221-22). As the SSA explained,

under the old rules, courts reviewing claims tended to focus more on

whether the agency sufficiently articulated the weight we gave treating

source opinions, rather than on whether substantial evidence supports our

final decision ... these courts, in reviewing final agency decisions, are

reweighing evidence instead of applying the substantial evidence standard

of review, which is intended to be highly deferential to us.

Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 5844,

5853 (Jan. 18, 2017); see also Schink v. Comm’r of Soc. Sec., 935 F.3d 1245, 1259 n.4 (11th

Cir. 2019).

The new regulations require an ALJ to apply the same factors when considering

the opinions from all medical sources. 20 C.F.R. § 404.1520c(a). As to each medical

source, the ALJ must consider: (1) supportability; (2) consistency; (3) relationship with

the claimant; (4) specialization; and (5) “other factors that tend to support or contradict a

medical opinion or prior administrative medical finding.” 20 C.F.R. § 404.1520c(c). But

the first two factors are the most important: “Under the new rule, the SSA will consider

the persuasiveness of all medical opinions and evaluate them primarily on the basis of

supportability and consistency.” Mackey v. Saul, No. 2:18-c-02379-MGL-MGB, 2020 WL

376995, at *4, n. 2 (D.S.C. Jan. 6, 2020), citing 20 C.F.R. § 404.1520c(a),(c)(1)-(2) (while

there are several factors ALJs must consider, “[t]he most important factors ... are

supportability (paragraph (c)(1) of this section) and consistency (paragraph (c)(2) of this

section).”).

“Supportability” refers to the principle that “[t]he more relevant the objective

medical evidence and supporting explanations presented by a medical source are to

support his or her medical opinion(s) or prior administrative medical finding(s), the more

persuasive the medical opinions or prior administrative medical finding(s) will be.” 20

C.F.R. § 404.1520c(c)(1). “Consistency” refers to the principle that “[t]he more consistent

a medical opinion(s) or prior administrative medical finding(s) is with the evidence from

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

medical opinion(s) or prior administrative medical finding(s) will be.” 20 C.F.R. §

404.1520c(c)(2). Put differently, the ALJ must analyze whether the medical source’s

opinion is (1) supported by the source’s own records; and (2) consistent with the other

evidence of record. See Cook v. Comm’r of Soc. Sec., No. 6:20-cv-1197-RBD-DCI, 2021 WL

1565832, at *3 (M.D. Fla. Apr. 6, 2021), report and recommendation adopted, 2021 WL

1565162 (M.D. Fla. Apr. 21, 2021).

The new regulations also change the standards the ALJ applies when articulating

his or her assessment of medical source opinions. As mentioned above, an ALJ need not

assign specific evidentiary weight to medical opinions based on their source. See Tucker v.

Saul, No. 4:19-cv-759-RDP, 2020 WL 3489427, at *6 (N.D. Ala. June 26, 2020). While

the ALJ must explain how he or she considered the supportability and consistency factors,

the ALJ need not explain how he or she considered the other three factors.3 20 C.F.R. §

404.1520c(b)(2). And, in assessing the supportability and consistency of a medical

opinion, the regulations provide that the ALJ need only explain the consideration of these

factors on a source-by-source basis – the regulations do not require the ALJ to explain the

consideration of each opinion from the same source. See 20 C.F.R. § 404.1520c(b)(1).

But whether these new regulations eliminate the judicially-created treating

physician rule – a longstanding requirement in this Circuit, see Winschel, 631 F.3d at 1179

– is an open question. See Beasley v. Comm’r of Soc. Sec., No. 2:20-cv-445-JLB-MRM, 2021

3 The exception is when the record contains differing but equally persuasive medical

opinions or prior administrative medical findings about the same issue. See 20 C.F.R. §

404.1520c(b)(3).

WL 4059895, at * 3-4 (M.D. Fla. Sept. 7, 2021). District courts have diverged in their

approaches. Compare Bevis v. Comm’r of Soc. Sec., No. 6:20-cv-579-LRH, 2021 WL

3418815, at *5 (M.D. Fla. Aug. 5, 2021) (collecting cases and applying good cause

standard “in the absence of binding or persuasive authority to the contrary” but noting it

was non-issue – under both standards, ALJ’s opinion was substantially supported)4, with

Miller v. Kijakazi, No. 4:20-cv-656-GMB, 2021 WL 4190632 (N.D. Ala. Sept. 14, 2021)

(citing Chevron, U.S.A., Inc. v. Nat’l Res. Defense Council, Inc., 467 U.S. 837, 845 (1984), and

finding treating physician rule inapplicable; plaintiff did not cite Eleventh Circuit case

stating the Act mandates it and did not argue the new regulations are arbitrary, capricious,

or otherwise invalid), Carr v. Comm’r of Soc. Sec., No. 1:20-cv-217-EPG, 2021 WL 1721692

(E.D. Cal. Apr. 30, 2021) (finding new regulations entitled to Chevron deference; treating

physician rule yields to new regulations because it conflicts with them), Wiginton v. Comm’r

of Soc. Sec., 3:20-cv-5387-LC/MJF, 2021 WL 3684264 (N.D. Fla. Aug. 3, 2021) (applying

new regulations without discussing whether Eleventh Circuit precedent regarding the

treating physician rule applies), and Devra B.B. v. Comm’r of Soc. Sec., 6:20-cv-643(BKS),

4 In finding the treating physician rule still applies, the Bevis court cited Simon v. Comm’r of

Soc. Sec., 1 F.4th 908, 918 n.4 (11th Cir. 2021) (“Simon I”), a June 9, 2021 decision the

Eleventh Circuit withdrew on rehearing on August 12, 2021, and substituted with Simon,

7 F.4th 1094 (11th Cir. 2021) (“Simon II”), seven days after Bevis was decided. In a Simon

I footnote, the Eleventh Circuit stated that the length of a claimant’s treating relationship

with her doctor was still an important factor to consider under the new regulations. 1

F.4th at 918 n. 4; see also Brown v. Comm’r of Soc. Sec., No. 6:20-cv-840-GJK, 2021 WL

2917562 (M.D. Fla. July 12, 2021) (citing Simon I and emphasizing that under new

regulations, length of treating relationship must still be considered). That footnote was

dicta, however, as Simon I and II were decided under the old regulations. Interestingly,

Simon II omits the Simon I footnote.

2021 WL 4168529 (N.D.N.Y. Sept. 14, 2021) (rejecting Plaintiff’s argument that the new

regulations conflict with the treating physician rule and are therefore invalid).

The Eleventh Circuit has not spoken directly on the issue in a published opinion.

See Simon II, 7 F.4th at 1104, n.4 (“[W]e need not and do not consider how the new

regulation bears upon our precedents requiring an ALJ to give substantial or considerable

weight to a treating physician’s opinions absent good cause to do otherwise.”). But in a

recent unpublished opinion, Marilyn Matos v. Commissioner of Social Security, No. 21-11764,

2022 WL 97144, at * 4 (11th Cir. Jan. 10, 2022), the Eleventh Circuit found that the ALJ’s

assessment of a treating source’s medical opinion was legally sufficient where the ALJ

only considered the medical opinion’s supportability and consistency “in accordance with

the SSA’s new regulatory scheme.” Id. The Matos court stated that the new regulations

“no longer require[ ] the ALJ to either assign more weight to medical opinions from a

claimant’s treating source or explain why good cause exists to disregard the treating

source’s opinion.” Id.

Here, the Court finds that the ALJ was not required to demonstrate good cause to

find Plaintiff’s treating source opinions unpersuasive. Instead, the ALJ, in accordance

with 20 C.F.R. § 404.1520c(c), must consider the persuasiveness of Plaintiff’s medical

opinions and evaluate them primarily based on supportability and consistency.

Dr. Nichols provided counseling to Plaintiff over a period of at least ten years, from

2010 through 2019 (Tr. 1040, 1044, 1048, 1052, 1056, 1060, 1064, 1068). The record

includes Dr. Nichols’ reports, which include progress reports, mental status exam

findings, assessments, recommendations, and diagnoses (See id.). Throughout Plaintiff’s

treatment course with Dr. Nichols, Plaintiff experienced sleep disturbances, irritability,

poor concentration, increased stress levels, and vacillating moods “from cooperative, to

agitated, to depressed,” which were “normally based on what has transpired during the

week.” (Id.). Dr. Nichols’ recommendations generally remain consistent and include

recommended follow up appointments with Plaintiff’s primary care physician and

continued weekly therapy sessions (Tr. 1042, 1046, 1050, 1054, 1058, 1062, 1066).

Plaintiff’s diagnoses consistently include major depression, occupational problems,

relational problems, sleep apnea, and narcolepsy (Tr. 1050, 1054, 1058, 1062, 1066).

Based on Dr. Nichols’ longitudinal treatment with Plaintiff, Dr. Nichols made the

following observations in a 2019 progress report: “[Plaintiff] does not work effectively

under normal stress, due to his health problems; therefore, he cannot tolerate the pressure

of workplace demands. Because of the cumulative impact of his diagnoses, it presents very

significant obstacle to his sufficiency and productivity.” (Tr. 1042).

In his decision, the ALJ stated the following related to Dr. Nichols:

The undersigned finds the claimant’s treatment provider, Dr. Vickie

Nichols, unpersuasive. Her findings are not consistent with the record

including the claimant’s completion of professional school that involves a

considerable amount of stress. It is also not consistent with the VA records5

that indicate that the claimant’s mental impairments do not impact him

vocationally.

(Tr. 42). Beyond these three brief sentences, the ALJ only indirectly references Plaintiff’s

treatment with Dr. Nichols two additional times in the decision, noting that “February

2017 counseling records note that the claimant had some issues with excessive worry

5 Of note, the ALJ then goes on to find that the VA disability rate is also not persuasive

(Tr. 42).

related to law school” and that “April 2020 therapy records show the claimant still had

issues with interpersonal relationships, and he exhibited paranoid behavior with the

coronavirus pandemic exacerbating his fears. At that time, he had a GAF of 50.” (Tr. 41).

The ALJ is correct in his assertion that Plaintiff completed law school. The record,

however, contains ample notes related to Plaintiff’s significant struggles related to school,

despite the accommodations offered for Plaintiff. In fact, many of these notes are within

Dr. Nichol’s own reports. Over the course of treatment with Dr. Nichols, Plaintiff

routinely discusses his issues with concentration, memory, anger, and excessive fatigue

during his law school career (Tr. 1044, 1048, 1052, 1056). Yet despite the frequency, over

a period of years, at which Dr. Nichols discusses these issues in her reports, there is

nothing in the ALJ’s analysis that explains how the ALJ considered supportability.6 See

Mayfield v. Comm’r of Soc. Sec., No. 7:20-cv-1040-ACA, 2021 WL 5300925, at *5-6 (N.D.

Ala. Nov. 15, 2021) (reversing Commissioner’s decision for failing to identify a “real

inconsistency” or explain supportability analysis). Moreover, while the ALJ briefly cites

Plaintiff’s treatment records with Dr. Nichols in the decision, the ALJ fails to include a

substantive discussion related to the consistency of Dr. Nichols’ opinion. Ultimately, the

ALJ’s brief review of Dr. Nichols’ treatment falls short. “[T]he new regulations require

an explanation, even if the ALJ (and the Commissioner) believe an explanation is

superfluous.” Pierson v. Comm’r of Soc. Sec., No. 6:19-CV-1515-RBD-DCI, 2020 WL

6 In fact, the ALJ does not use the term “supportability” anywhere in his decision. While

the undersigned is not suggesting that an ALJ must use each term explicitly, the ALJ’s

explanation for rejecting Dr. Nichol’s opinions offers no insight into how he considered

this factor.

1957597 at *6 (M.D. Fla. Apr. 8, 2020), report and recommendation adopted, 2020 WL

1955341 (M.D. Fla. Apr. 23, 2020); see also 20 C.F.R. § 404.1520c(b)(2).

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

consistency factors in evaluating the opinion of Dr. Nichols, the Court finds that the ALJ’s

decision is not supported by substantial evidence. On remand, the ALJ should explain

his consideration of the persuasiveness of Dr. Nichols’ opinions, focusing on the factors

of supportability and consistency.’

V. Conclusion

Accordingly, for the foregoing reasons, it is hereby ORDERED:

1. The decision of the Commissioner be reversed, and the case remanded to the

Commissioner for further consideration in accordance with this opinion.

2. The Clerk be directed to enter final judgment in favor of Plaintiff and close the

case.

IT IS SO REPORTED in Tampa, Florida, on April 14, 2022.

□□ Ae

SEAN P. FLYNN

UNITED STATES MAGISTRATE JUDGE

’ Plaintiff also briefly argues the ALJ erred in considering the opinion of Plaintiffs sleep

medicine specialist, Ms. Richter. The Commissioner contends that the ALJ was not

required to defer to Ms. Richter’s opinion because the ALJ’s decision “finding this opinion

unpersuasive was supported by substantial evidence” and Ms. Richter’s “opinion was also

inconsistent with Plaintiff's activities.” (Doc. 17 at 29-30). The undersigned does not

reach this issue but notes that, on remand, the ALJ should evaluate all treating opinions

with 20 U.S.C. § 404.1520c’s mandates in mind.

13