Frye v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

GREGORY WILLIAM FRYE,

Plaintiff,

v. Case No: 6:21-cv-741-DCI

COMMISSIONER OF SOCIAL

SECURITY,

Defendant.

MEMORANDUM AND OPINION

THIS CAUSE is before the Court on Claimant’s appeal of an administrative decision

denying an application for Supplemental Security Income (SSI) alleging a disability beginning

March 14, 2019. Claimant amended the onset date to May 15, 2019—the date of his SSI

application. On November 24, 2020, the ALJ issued an unfavorable decision. R. 22.

Having considered the parties’ memorandum and being otherwise fully advised, the Court

concludes, for the reasons set forth herein, that the Commissioner’s decision is due to be

AFFIRMED.

I. Issues on Appeal

Claimant raises one issue on appeal: Whether the ALJ properly evaluated the medical

opinions of record based on an adequate rationale and substantial evidence when determining the

residual functional capacity (RFC). Doc. 27.

II. Standard of Review

As the Eleventh Circuit has stated:

In Social Security appeals, we must determine whether the Commissioner’s

decision is supported by substantial evidence and based on proper legal standards.

Substantial evidence is more than a scintilla and is such relevant evidence as a

reasonable person would accept as adequate to support a conclusion. We may not

decide the facts anew, reweigh the evidence, or substitute our judgment for that of

the [Commissioner].

Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (citations and quotations

omitted). “With respect to the Commissioner’s legal conclusions, however, our review is de

novo.” Lewis v. Barnhart, 285 F.3d 1329, 1330 (11th Cir. 2002).

The Social Security Administration revised its regulations regarding the consideration of

medical evidence—with those revisions applicable to all claims filed after March 27, 2017. See

82 FR 5844-01, 2017 WL 168819 (Jan. 18, 2017). Claimant filed the claim after March 27, 2017,

so the revised regulations apply in this action.

The revised regulations require that an ALJ apply the same factors in the consideration of

the opinions from all medical sources, rather than afford specific evidentiary weight to certain

sources’ opinions. 20 C.F.R. §§ 404.1520c(a); 416.920c(a). The ALJ will assess the

persuasiveness of a medical source’s opinion in light of five factors: 1) supportability; 2)

consistency; 3) relationship with the claimant;1 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).

1 This factor combines consideration of the following issues: length of the treatment relationship,

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

relationship, and examining relationship. 20 C.F.R. §§ 404.1520c(c)(3)(i)–(v); 416.920c(c)(3)(i)–

(v).

Supportability and consistency constitute the most important factors in any evaluation, and

the ALJ must explain the consideration of those two factors. 20 C.F.R. §§ 404.1520c(b)(2);

416.920c(b)(2). In assessing the supportability and consistency of a medical opinion, the

regulations provide that the ALJ need only explain the consideration of these factors on a source-

by-source basis—the regulations themselves do not require the ALJ to explain the consideration

of each opinion from the same source. 20 C.F.R. §§ 404.1520c(b)(1); 416.920c(b)(1). The

regulations state:

[W]hen a medical source provides multiple medical opinion(s) or prior

administrative medical finding(s), we will articulate how we considered the

medical opinions or prior administrative medical findings from the medical

source together in a single analysis using the factors listed in paragraphs (c)(1)

through (c)(5) of this section, as appropriate. We are not required to articulate

how we considered each medical opinion or prior administrative finding from

one medical source individually.

20 C.F.R. §§ 404.1520c(b)(1); 416.920c(b)(1).

Courts have found that “[o]ther than articulating his consideration of the supportability and

consistency factors, the Commissioner is not required to discuss or explain how he considered any

other factor in determining persuasiveness.” Freyhagen v. Comm'r of Soc. Sec. Admin., 2019 WL

4686800, at *2 (M.D. Fla. Sept. 26, 2019) (citing Mudge v. Saul, 2019 WL 3412616, at *4 (E.D.

Mo. July 29, 2019)). “Overall, supportability relates to the extent to which a medical source has

articulated support for the medical source's own opinion, while consistency relates to the

relationship between a medical source's opinion and other evidence within the record.” Cook v.

Comm'r of Soc. Sec., 2021 WL 1565832, at *3 (M.D. Fla. Apr. 6, 2021), report and

recommendation adopted, 2021 WL 1565162 (M.D. Fla. Apr. 21, 2021).

III. Discussion

The ALJ found that Claimant has the following severe impairments: degenerative joint

disease, generalized anxiety disorder, posttraumatic stress disorder (PTSD), and drug and alcohol

abuse. R. 27. The ALJ determined that Claimant has the RFC to:

perform light work as defined in 20 CFR 416.967(b) except the claimant can

frequently reach, handle, finger, or feel. The claimant can perform simple, routine,

and repetitive tasks. The claimant can occasionally interact with the public.

R. 29-30.

Claimant asserts that the RFC conflicts with his psychiatrist’s opinion. On January 31,

2019, Dr. Gates, his treating psychiatrist, executed a form entitled “Medical Opinion Re: Ability

to Do Work-Related Activities (Mental).” R. 386-388. The form evaluates Claimant’s abilities

from October 8, 2015 and “continuing to the present.” R. 386. Claimant points out that according

to the form, Dr. Gates opined that he was at least “seriously limited”2 in his ability to: (1) maintain

attention for a two hour segment; (2) maintain regular attendance and be punctual within

customary, usually strict tolerances; (3) sustain an ordinary routine without special supervision;

(4) complete a normal workday and workweek without interruptions from “psychologically based

symptoms;” (5) perform at a consistent pace without an unreasonable number and length of rest

periods; (6) get along with coworkers or peers without “unduly distracting them or exhibiting

behavioral extremes;” or (7) deal with normal work stress. Doc. 27 at 19, citing R. 386. Claimant

also states that Dr. Gates opined that his ability to interact appropriately with the public and

maintain socially appropriate behavior was “seriously limited.” Id. at 19-20, citing R. 387.

2 Claimant states that Dr. Gates found him to be “at least” seriously limited because the other

categories the physician selected on the form are more restrictive including “unable to meet

competitive standards” and “no useful ability to function.” R. 386-387.

Claimant adds that in support of the opinion, Dr. Gates explained that Claimant had severe

mood instability, he was unable to focus to complete tasks, his concentration was greatly impaired,

and he would have difficulty working at a regular job because of his struggles with taking direction

from others. Id. at 21-22, citing R. 387.

Further, Claimant relies on another “Medical Opinion” form Dr. Gates executed on

September 15, 2020 that also indicates at least serious limitations in Claimant’s “mental abilities

and aptitudes needed to do unskilled work” for the period March 14, 2019 through the date of the

opinion. R. 746-748.3 Dr. Gates opined that Claimant had “very severe mood swings,” would be

absent more than four days per month, could not focus to stay on task, and could not maintain

gainful employment. R. 747. Claimant states that Dr. Gates explained that the severe mood swings

impair Claimant’s concentration, and that Claimant cannot maintain attention on tasks. Doc. 27

at 22, citing R. 747. Dr. Gates noted on the form that Claimant was hospitalized the date the form

was executed for dehydration, weight loss, and depression. R. 747.

The ALJ determined that Dr. Gates’ opinions were unpersuasive. R. 32. The ALJ found

the following with respect to the opinions:

Todd Gates, D.O., offered two opinions, both of them indicating, that due to the

claimant’s mental impairments he would miss more than four days of work per

month due to severe mood swings that affect his concentration and make it difficult

for him to complete tasks or work in proximity to others (B1F; B18F). Dr. Gates

stated that he supported his opinions with his treatment notes and his professional

3 Specifically, for March 14, 2019 to September 15, 2020, Dr. Gates opined that Claimant was

either “seriously limited,” unable to meet “competitive standards,” or had “no useful ability to

function” in the following categories: (1) maintaining attention for a two hour segment; (2)

maintaining regular attendance and being punctual within customary, usually strict tolerances; (3)

working in coordination with or proximity to others without being unduly distracted; (4)

completing a normal workday and workweek without interruptions from psychologically based

symptoms; (5) performing at a consistent pace without an unreasonable number and length of rest

periods; (6) getting along with co-workers or peers without unduly distracting them or exhibiting

extreme behaviors; (7) dealing with normal work stress; and (8) being aware of normal hazards

and taking appropriate precautions. R. 746.

experience (B1F; B18F). However, the undersigned finds these opinions to be

unpersuasive, as they are not consistent with the longitudinal medical record

including Dr. Gates’ treatment notes. Particularly, while the claimant was noted on

one occasion to have a severe concentration issues, the record routinely shows that

the claimant has a normal attention span and concentration, is alert and oriented,

and is routinely noted to be cooperative and pleasant, which does not support the

extreme limitations opined (B3F/34, 43; B5F/38, 45; B6F/15; B14F/3; B17F/1).

R. 32.

Claimant argues that the evaluation of Dr. Gates’ opinion was error because the ALJ:

misrepresented the record; failed to adequately discuss the “supportability” of the opinions; did

not clearly articulate the evidence which led to his treatment of the opinions; and failed to consider

the length of Dr. Gates’ treatment relationship, the frequency of the examinations, and the

physician’s board certification. Doc. 27 at 19-26. Based on the foregoing, Claimant requests that

the Court remand the case for a supplemental hearing. Id. at 34.

The Court agrees with the Commissioner that Claimant is not entitled to relief. Before

addressing the individual challenges to the ALJ’s decision, the Court notes that while Claimant

recognizes in the Joint Memorandum the applicability of the Social Security Administration’s

2017 Regulations and discusses the need to consider the persuasiveness of a medical source

opinion under the revised law, Claimant also mentions and cites the case law requiring the ALJ to

state with particularity the weight given to a physician’s opinion—a standard that predates the

2017 revisions. Id. at 20-21. To the extent these citations are an attempt to bring a claim for relief

because the ALJ failed to state the weight of his treating physician’s opinion, the mere reference

to the law is inadequate and the argument is deemed waived. See Whitten v. Soc. Sec. Admin.,

Comm’r, 778 F. App’x 791, 793 (11th Cir. 2019) (“For an issue to be adequately raised in the

opening brief, it must be plainly and prominently raised and must be supported by arguments and

citations to the record and to relevant authority”) (citing Sapuppo v. Allstate Floridian Ins. Co.,

739 F.3d 678, 681 (11th Cir. 2014)); see also Access Now, Inc. v. Sw. Airlines, 385 F.3d 1324,

1330 (11th Cir. 2004) (“[A] legal claim or argument that has not been briefed before the court is

deemed abandoned and its merits will not be addressed.”).4

In any event, Claimant primarily argues under the 2017 revised regulations, and the Court

will address those arguments. Claimant contends that the ALJ misrepresents the record. Doc. 27

at 22. Namely, Claimant disagrees with the ALJ’s determination that there is only one occasion

of a “severe” concentration issue; attacks the ALJ’s reliance on certain records that, based on

Claimant’s summation, did not focus on his mental health or included only a “minimal psych

evaluation”; and makes statements regarding what was “unlikely” to have occurred at the

appointments to undercut the ALJ’s reliance on the records. /d. at 22-23.

The Court finds that even though Claimant’s own characterization of the record differs

from the ALJ’s, Claimant’s dissatisfaction with the conditions that the ALJ deemed “severe” or

with the ALJ’s reliance on records that Claimant feels, and even guesses, did not include a

satisfactory “psych exam,” does not establish that the ALJ’s finding was unsupported by

substantial evidence. The ALJ cited to and assessed the records relating to Claimant’s mental

health, and speculation as to what did or did not transpire at the visits does not warrant relief. In

fact, it seems that Claimant’s argument, which frames the relied-upon record as “minimal,” is an

attempt to persuade the Court to reweigh the evidence, which the Court will not do. See Phillips

v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir. 2004) (“We may not decide the facts anew,

reweigh the evidence, or substitute our judgment for that of the [Commissioner]”) (quoting

Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983)).

4 The Court’s conclusion is the same under Eleventh Circuit precedent and the Social Security

Administration’s 2017 revised regulations. The ALJ’s decision is supported by substantial

evidence and Claimant’s arguments do not justify relief."

The Court also rejects Claimant’s argument that the ALJ’s evaluation of Dr. Gates’

opinions was inadequate under the regulations. Contrary to Claimant’s contention, the Court

agrees with the Commissioner that the ALJ properly considered the “supportability” of the

physician’s opinions when assessing the persuasiveness of that record. As mentioned, the ALJ

found that Dr. Gates’ opinions were not consistent with the record, which “routinely” showed a

normal attention span, concentration, alertness, and cooperation; findings that undermined the

physician’s conclusions regarding Claimant’s severe mood swings affecting the ability to complete

tasks and work within proximity to others. R. 32. While the ALJ mostly cited to the record from

other medical sources in support of this finding, he explicitly stated that the inconsistency also

relates to Dr. Gates’ record and then cites to Dr. Gates’ record. R. 32, citing to R. 740.

Also, in considering the persuasiveness of Dr. Gates’ opinion, the ALJ discussed Dr. Gates’

treatment notes regarding Claimant’s concentration and demeanor. Specifically, the ALJ found

that Claimant had a conservative treatment history consisting of medication management and

regular therapy sessions. R. 31, citing R. 742. The ALJ stated that Claimant reported panic attacks,

but providers, including Dr. Gates, did not observe a panic attack and related the Claimant’s

feelings of being overwhelmed to being worried about his children. Id., citing R. 597, 680. Citing

to Dr. Gates’ record, the ALJ found that the record generally showed improvement of symptoms

with medications. Id., citing R. 680. Also, the ALJ found that Claimant’s providers, including

Dr. Gates, often describe him as cooperative and polite with normal mood, affect, and grooming—

descriptions that do not support Claimant’s allegations of anxiety and panic attacks. Id. The ALJ

noted that while Claimant reported difficulties with task completion and concentration, the

providers, including Dr. Gates, “routinely observed the claimant to be alert and oriented with intact

recent and remote memory, attention span, concentration, and cognitive functions.” Id.

Based on the forgoing, the Court finds that the ALJ adequately evaluated this factor in the

persuasiveness assessment. The ALJ may not have used the word “supportability,” but he

discussed the record with respect to the inconsistency of the opinions within the physician’s own

records, and the Court finds that to be adequate. See Vachon v. Comm’r of Soc. Sec.; 2022 WL

458604, at *14, n.5 (M.D. Fla. Feb. 15, 2022) (finding that to the extent the ALJ may have erred

in failing to say “supportability,” it was harmless error because the ALJ assessed the factor) (citing

Denomme v. Comm’r, Soc. Sec. Admin., 518 F. App’x 875, 877 (11th Cir. 2013)).

Likewise, the Court finds that the ALJ properly assessed “consistency” when determining

the persuasiveness of Dr. Gates’ opinions. Again, the ALJ found that Dr. Gates’ assessment was

inconsistent with the “longitudinal record.” R. 32. The ALJ cites to several records from other

medical sources in the excerpt from the ALJ’s decision included supra, and the ALJ’s discussion

earlier in the decision also refers to the other providers’ records relating to Claimant’s normal

attention span, concentration, alertness, cooperation, and pleasantness. R. 31, 32. In sum, the

Court finds that the ALJ’s consideration of Dr. Gates’ opinions comports with the requirements of

the 2017 Social Security Regulations because the ALJ articulated the evidence affecting the

“supportability” and “consistency” of the opinion.

Finally, the ALJ may—but is not required to—explain how he considered the remaining

three factors (i.e., relationship with claimant, specialization, and “other factors”). 20 C.F.R. §§

404.1520c(b)(2); 416.920c(b)(2); see also Freyhagen v. Comm'r of Soc. Sec. Admin., 2019 WL

4686800, at *2 (M.D. Fla. Sept. 26, 2019) (“The new regulations are not inconsistent with Eleventh

Circuit precedent holding that ‘the ALJ may reject any medical opinion if the evidence supports a

contrary finding.’”) (quoting Wainwright v. Comm’r of Soc. Sec. Admin., 2007 WL 708971, at *2

(11th Cir. Mar. 9, 2007) (per curiam) and citing Sryock v. Heckler, 764 F.2d 834, 835 (11th Cir.

1985) (per curiam) (same)).

The Court concludes that substantial evidence supports the ALJ’s decision in determining

the RFC and a remand to reconsider the opinion is not appropriate.

IV. Conclusion

For the stated reasons, it is ORDERED that:

1. The final decision of the Commissioner is AFFIRMED; and

2. The Clerk is directed to enter judgment for the Commissioner and close the case.

ORDERED in Orlando, Florida on April 7, 2022.

UNITED STATES MAGISTRATE JUDGE