The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
LISA MARIE GABRIEL,
Plaintiff,
v. Case No.: 5:21-cv-409-DNF
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
OPINION AND ORDER
Plaintiff Lisa Marie Gabriel seeks judicial review of the final decision of the
Commissioner of the Social Security Administration (“SSA”) denying her claim for
a period of disability and disability insurance benefits. The Commissioner filed the
Transcript of the proceedings (hereinafter referred to as “Tr.” followed by the
appropriate page number), and the parties filed legal memoranda setting forth their
respective positions. As explained below, the decision of the Commissioner is
REVERSED and REMANDED pursuant to § 205(g) of the Social Security Act,
42 U.S.C. § 405(g).
A. Social Security Eligibility
The law defines disability as the inability to do 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. §§ 416(i), 423(d)(1)(A),
1382c(a)(3)(A); 20 C.F.R. §§ 404.1505(a), 416.905(a). The impairment must be
severe, making the claimant unable to do her previous work, or any other substantial
gainful activity which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A),
1382c(a)(3)(A); 20 C.F.R. §§ 404.1505–404.1511, 416.905–416.911.
B. Standard of Review
The Commissioner’s findings of fact are conclusive if supported by
substantial evidence. 42 U.S.C. § 405(g). “Substantial evidence is more than a
scintilla and is such relevant evidence as a reasonable person would accept as
adequate to support a conclusion. Even if the evidence preponderated against the
Commissioner’s findings, we must affirm if the decision reached is supported by
substantial evidence.” Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th
Cir. 2004). In conducting this review, this Court may not reweigh the evidence or
substitute its judgment for that of the ALJ, but must consider the evidence as a whole,
taking into account evidence favorable as well as unfavorable to the decision.
Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (citation
omitted); Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995); Martin v. Sullivan,
894 F.2d 1520, 1529 (11th Cir. 1990). Unlike findings of fact, the Commissioner’s
conclusions of law are not presumed valid and are reviewed under a de novo
standard. Keeton v. Dep’t of Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir.
1994); Maldonado v. Comm’r of Soc. Sec., No. 20-14331, 2021 WL 2838362, at *2
(11th Cir. July 8, 2021); Martin, 894 F.2d at 1529. “The [Commissioner’s] failure
to apply the correct law or to provide the reviewing court with sufficient reasoning
for determining that the proper legal analysis has been conducted mandates
reversal.” Keeton, 21 F.3d at 1066.
The ALJ must follow five steps in evaluating a claim of disability. 20 C.F.R.
§§ 404.1520, 416.920. At the first step, the ALJ must determine whether the claimant
is currently engaged in substantial gainful employment. 20 C.F.R.
§ 404.1520(a)(4)(i), (b); 20 C.F.R. § 416.920(a)(4)(i), (b). At step two, the ALJ must
determine whether the impairment or combination of impairments from which the
claimant allegedly suffers is “severe.” 20 C.F.R. § 404.1520(a)(4)(ii), (c); 20 C.F.R.
§ 416.920(a)(4)(ii), (c). At step three, the ALJ must decide whether the claimant’s
severe impairments meet or medically equal a listed impairment. 20 C.F.R.
§ 404.1520(a)(4)(iii), (d); 20 C.F.R. § 416.920(a)(4)(iii), (d). If the ALJ finds the
claimant’s severe impairments do not meet or medically equal a listed impairment,
then the ALJ must determine whether the claimant has the residual functional
capacity (“RFC”) to perform her past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv),
(e)–(f); 20 C.F.R. § 416.920(a)(4)(iv), (e)–(f).
If the claimant cannot perform past relevant work, the ALJ must determine at
step five whether the claimant’s RFC permits her to perform other work that exists
in the national economy. 20 C.F.R. §§ 404.1520(a)(4)(v), (g), 416.920(a)(4)(v), (g).
At the fifth step, there are two ways in which the ALJ may establish whether the
claimant is capable of performing other work available in the national economy. The
first is by applying the Medical Vocational Guidelines, and the second is by the use
of a vocational expert. Phillips v. Barnhart, 357 F.3d 1232, 1239-40 (11th Cir.
2004); Atha v. Comm’r, Soc. Sec. Admin., 616 F. App’x 931, 933 (11th Cir. 2015).
The claimant bears the burden of proof through step four. Atha, 616 F. App’x
at 933. If the claimant meets this burden, then the burden temporarily shifts to the
Commissioner to establish the fifth step. Id.; 20 C.F.R. § 404.1520(a)(4)(v), (g); 20
C.F.R. § 416.920(a)(4)(v), (g). If the Commissioner presents evidence of other work
that exists in significant numbers in the national economy that the claimant is able
to perform, only then does the burden shift back to the claimant to prove she is unable
to perform these jobs. Atha, 616 F. App’x at 993.
C. Procedural History
Plaintiff filed an application for a period of disability and disability insurance
benefits on August 16, 2019, alleging disability beginning April 25, 2019. (Tr. 66,
180-81). The application was denied initially and on reconsideration. (Tr. 66, 80).
Plaintiff requested a hearing and a hearing was held on October 6, 2020, before
Administrative Law Judge (“ALJ”) Pamela Houston. (Tr. 30-54). On November 2,
2020, the ALJ entered a decision finding Plaintiff not disabled from April 25, 2019,
through the date of the decision. (Tr. 15-25).
Plaintiff requested review of the hearing decision, but the Appeals Council
denied Plaintiff’s request on June 22, 2021. (Tr. 1-5). Plaintiff initiated the instant
action by Complaint (Doc. 1) filed on August 10, 2021, and the case is ripe for
review. The parties consented to proceed before a United States Magistrate Judge
for all proceedings. (Doc. 18).
D. Summary of ALJ’s Decision
In this matter, the ALJ found Plaintiff meets the insured status requirements
of the Social Security Act through September 30, 2022. (Tr. 17). At step one of the
sequential evaluation, the ALJ found that Plaintiff had not engaged in substantial
gainful activity since April 25, 2019, the alleged onset date. (Tr. 17). At step two,
the ALJ found that Plaintiff had the following severe impairment: “headache
disorder.” (Tr. 17). At step three, the ALJ found Plaintiff did not have an impairment
or combination of impairments that meets or medically equals the severity of any of
the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§
404.1520(d), 404.1525, and 404.1526). (Tr. 19).
Before proceeding to step four, the ALJ found that Plaintiff had the following
RFC:
After careful consideration of the entire record, the
undersigned finds claimant has the RFC for light work (20
[C.F.R. §] 404.1567(b)), except frequently handle bilaterally;
avoid: work at heights, work with dangerous machinery and
dangerous tools, constant temperatures over 90°F and under
40°F, constant vibration, concentrated exposure to pulmonary
irritants (e.g., dust, fumes, gases, chemicals), and noise over
moderate (per the DOT).
(Tr. 19).
At step four, the ALJ relied on the vocational expert’s testimony to find
Plaintiff was capable of performing her past relevant work as a receptionist and a
bank teller as they are generally performed in the national economy. (Tr. 23-24). The
ALJ found this work did not require the performance of work-related activities that
were precluded by Plaintiff’s RFC. (Tr. 23-24).
Alternatively, at step five the ALJ considered Plaintiff’s age (42 years old on
the alleged disability onset date), education (at least high school), work experience,
and RFC, and found there were jobs that existed in significant numbers in the
national economy that Plaintiff could perform. (Tr. 24-25). Specifically, the ALJ
found that Plaintiff could perform such occupations as:
(1) hand packager & inspector, DOT 559.687-074,1 light, SVP 2
(2) marker, DOT 209.587-034, light, SVP 2
(3) router, DOT 222.587-038, light SVP 2
1 DOT refers to the Dictionary of Occupational Titles.
(Tr. 24-25). The ALJ concluded that Plaintiff had not been under a disability from
April 25, 2019, through the date of the decision. (Tr. 25).
II. Analysis
On appeal, Plaintiff raises three issues: (1) whether the ALJ failed to apply
the correct legal standards to Dr. Kim’s opinion; (2) whether the ALJ failed to apply
the correct legal standards to Plaintiff’s testimony regarding her pain and limitations;
and (3) whether Plaintiff is entitled to a legitimate valid hearing before an ALJ who
has lawful authority to hear and decide her claim based on valid legal authority.
(Doc. 17, p. 1-2).
A. Evaluation of Lance Kim, D.O.’s Opinion
Plaintiff argues that the ALJ’s finding that Dr. Kim’s opinion was partially
persuasive is not supported by substantial evidence. (Doc. 17, p. 12). Plaintiff claims
that while some records may document that she is doing well for a time, other records
show that she continued to experience repeated headaches. (Doc. 17, p. 12). The
Commissioner contends that the ALJ provided sufficient reasons to find Dr. Kim’s
opinion partially persuasive and substantial evidence supports these reasons. (Doc.
22, p. 24-27).
The regulations for disability cases filed after March 27, 2017 – such as this
one – changed and an ALJ no longer defers or gives any specific evidentiary weight
to a medical opinion. 20 C.F.R. § 404.1520c(a), 20 C.F.R. § 416.920c(a). Thus, an
ALJ no longer uses the term “treating source” and does not defer or give specific
evidentiary weight, including controlling weight, to any medical opinion or prior
administrative medical finding. 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) (citing 20 C.F.R.
§ 404.1520c(a)).
Instead, an ALJ assesses the persuasiveness of a medical source’s opinions
given the following five factors, with the first two being the most important: (1)
supportability; (2) consistency; (3) relationship with the claimant, including the
length, frequency, and purpose of the examining and any treatment relationship; (4)
specialization; and (5) other factors, such as the source’s familiarity with other
evidence concerning the claim, that tend to support or contradict the medical
opinion. 20 C.F.R. § 404.1520c(a)-(c); 20 C.F.R. § 404.920c(a)-(c). An ALJ may
but is not required to explain how he considers factors other than supportability and
consistency, unless two or more opinions are equally persuasive on the same issue.
20 C.F.R. § 404.1520c(b)(2); 20 C.F.R. § 416.920c(b)(2).
For supportability, the revised rules provide: “The 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); 20 C.F.R. § 416.920c(c)(1). For consistency, the
revised rules provide: “The 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); 20
C.F.R. § 416.920c(c)(2).
The new regulations also differentiate between medical opinions and “other
medical evidence.” 20 C.F.R. § 404.1513(a)(2)-(3). “A medical opinion is a
statement from a medical source about what you can still do despite your
impairment(s) and whether you have one or more impairment-related limitations or
restrictions” in the abilities listed in paragraphs (a)(2)(i) through (iv). 20 C.F.R.
§ 404.1513(a)(2). “Other medical evidence is evidence from a medical source that
is not objective medical evidence or a medical opinion, including judgments about
the nature and severity of your impairments, your medical history, clinical findings,
diagnosis, treatment prescribed with response, or prognosis.” 20 C.F.R.
§ 404.1513(a)(3).
Dr. Kim is board certified in neurology, sleep medicine, vascular neurology,
clinical neurophysiology, electrodiagnostic medicine, pain medicine, and headache
medicine. (Tr. 454-55). Dr. Kim saw Plaintiff around five times from August 2019
through July 2020 for migraines, other headaches, and associated symptoms. (Tr.
437).
At the first August 2019 visit, Plaintiff reported that she had experienced
migraine headaches virtually her entire life. (Tr. 437). The headaches caused deep,
sharp, throbbing pressure, causing her head to feel like it would explode. (Tr. 437).
For unknown reasons, the headaches intensified in 2016, when they became an
almost daily event. (Tr. 437). Plaintiff reported that she had tried an extensive
medication regimen, including NSAIDs, muscle relaxers, opioids, and a variety of
pain killers without success. (Tr. 437). Her headaches occurred around 20-25 days a
month. (Tr. 437). Plaintiff also reported that along with headaches, she suffered from
a frequent sense of vertigo, disequilibrium, visual obscuration, visual blurriness, and
nausea. (Tr. 437). Her headaches were often associated with photophobia and
phonophobia. (Tr. 437). Plaintiff’s neurological examination was generally normal,
but Dr. Kim noted a dysphoric affect and a reduced attention span and concentration.
(Tr. 438). Dr. Kim diagnosed Plaintiff with chronic intractable daily headache of a
migraine type. (Tr. 438). For the headaches, Dr. Kim ordered an MRI of the brain,
EEG, and TCD for evaluation and also ordered other tests for suspected carpal tunnel
syndrome or cervical radiculopathy. (Tr. 438). He modified her medication regimen
for the headaches. (Tr. 438).
Dr. Kim saw Plaintiff in September 2019 for a follow-up. (Tr. 441). Plaintiff
reported she was doing well and was in relative remission for her conditions. (Tr.
441). He found her TCD, NCS, EEG unremarkable and her MRI of the brain within
normal limits. (Tr. 441). Plaintiff’s examination was essentially normal except for
gait apraxia. (Tr. 442). Dr. Kim explained that the medication Emgality required a
6-month commitment, and he suggested a NeuroMag trial. (Tr. 442). He would see
Plaintiff again in 3-4 months unless her symptoms worsened or she had new
symptoms or side effects from the medication. (Tr. 442). In December 2019, Plaintiff
was doing well on the medication regimen and her examination was essentially
normal except for gait apraxia. (Tr. 443-44). Even so, Dr. Kim started her on another
medication. (Tr. 444).
In March 2020, Plaintiff reported that she continued to experience ongoing
headaches, which were occurring three to four times a week, with each episode
lasting three to four hours, even while on the current medication regimen. (Tr. 445).
She also reported she struggled to stay asleep at night and found herself extremely
tired by early afternoon. (Tr. 445). Her neurological examination was generally
normal, except for gait apraxia. (Tr. 446). Dr. Kim diagnosed Plaintiff with chronic
intractable daily headache of a migraine type, with suboptimal response from her
mediations of Emgality, Imitrex, and Zomig. (Tr. 446). He also diagnosed her with
chronic episodic vertigo and disequilibrium with near syncope, possible vestibular
migraine, chronic cervicalgia with cervicogenic headache. (Tr. 446). Based on the
suboptimal response from Emgality, Dr. Kim switched Plaintiff to Ajovy and
stopped some other medications. (Tr. 445, 447). In July 2020, Plaintiff saw Dr. Kim
for a follow-up. (Tr. 448). Plaintiff reported continuing to suffer with at least 10-15
headaches per month despite using the new medication, with each headache usually
lasting 4-5 hours at a time. While the headaches were better, she still had frequent
mental fogging, vertigo, and mood changes “that are just as disabling.” (Tr. 448).
Her neurological examination was generally normal, except for gait apraxia. (Tr.
449). Dr. Kim’s impressions were consistent with past visits. (Tr. 449). Dr. Kim’s
treatment plan continued Plaintiff on the same medical regimen, added one
medication, and suggested Plaintiff might benefit from a Botox injection. (Tr. 450).
On August 25, 2020, Dr. Kim was deposed. (Tr. 451-63). Dr. Kim testified
that he first saw Plaintiff for chronic intractable headaches, that “did not respond to
a variety of different medications that she had tried already before she came to see
me.” (Tr. 456). About the time she first saw Dr. Kim, Plaintiff was experiencing 20
to 25 headaches per month but after treatment with Dr. Kim, she experienced 10 to
15 headaches per month. (Tr. 457). Dr. Kim adjusted Plaintiff’s medications at each
visit to try to find a medication or combination of medications that would respond
to her condition. (Tr. 457-58). Dr. Kim found Plaintiff’s typical headache lasted a
minimum of several hours up to 72 hours. (Tr. 458-59). Plaintiff reported she had
pulsating headaches with severe pain, and may also have photophobia, phonophobia,
and nausea. (Tr. 459). Dr. Kim found Plaintiff to continue to have at least 10-15
headaches per month. (Tr. 459). Dr. Kim performed objective testing to rule out
alternative medical causes. (Tr. 459-460). He found no confounding factors. (Tr.
460). Dr. Kim testified that Plaintiff would “more likely” not be able to return to
work because her headaches were drug resistant and every headache she suffered
was completely debilitating. (Tr. 460-61). Plus, even when the headaches subsided,
she still had significant mental fogging where she was forgetful and would be unable
to focus. (Tr. 461). Dr. Kim testified that if you added up all the days Plaintiff
suffered from headache plus the other disabling non-headache symptoms, the result
was over 20 days per month and he did not believe there were jobs that would allow
for such absences. (Tr. 461).
In the decision, the ALJ summarized Dr. Kim’s treatment notes. (Tr. 21). The
ALJ founds that Dr. Kim was an acceptable medical source who diagnosed Plaintiff
with migraines without aura after reviewing her medical history, conducting an
examination, and conducting objective tests to exclude alternative causes for her
symptoms. (Tr. 22). While the ALJ found Plaintiff’s headache disorder a medically
determinable impairment, she questioned the extent of the symptoms and whether
they were consistent with the evidence. (Tr. 22).
The ALJ then considered Dr. Kim’s opinion and found it partially persuasive.
(Tr. 22). She presented these reasons.
• “Dr. Kim stated that claimant’s symptoms are disabling, and that she has
disabling non-headache symptoms. Statements indicating symptoms are
disabling are not medical opinions under our regulations. They are not
particularly useful to this determination, as they do not describe how the
symptoms limit the claimant or activities that she can or cannot due despite
her symptoms.”
• “[Dr. Kim] indicated that over 20 days per month, she has headaches and
symptoms including forgetfulness and trouble focusing. But these alleged
symptoms are not corroborated by objective signs. Exams never show any
confusion, memory deficit or lack of concentration. Exams never show
claimant so disabled that she cannot function or perform ADLs. Exams never
witness a headache/migraine event. Exams show no vertigo or dizziness.”
• “The deposition testimony is inconsistent with Dr. Kim’s actual treatment
notes that repeatedly opine claimant ‘is doing well and is in relative
remission of the above-described conditions. Patient has been compliant with
the prescribed medical regimen and denies any significant adverse effects or
complications. The patient denies any new issues or complaints.’ (Exhibit
B7F/58, 60; B8F/1; B9F/1).”
• “Treatment notes of Dr. Kim are supported by notes of claimant’s primary
physician showing she was on Emgality, which was working well. (Exhibit
B7F/42-5) Treatment notes of Dr. Kim and primary care are much more
convincing. They consistently show claimant in relative remission, doing
well, with no new complaints.”
• “Dr. Kim is board certified in multiple specialties, most importantly, he is a
board[-]certified neurologist, and board certified in headache medicine.
Certainly if--as Dr. Kim testified at his deposition--claimant’s treatment was
not effective, or if she had 10-15 headaches monthly, or if she had ‘drug
resistant headaches,’ or if each headache was an 8-10/10 in severity, or if she
was dizzy, or if they were so severe to be disabling, Dr. Kim, a treating
neurologist, would have noted this in his exam findings and sought
alternative treatment, rather than noting how well claimant was doing with
treatment and that she was in relative remission from her conditions. In other
words, it is inconsistent that the doctor would note claimant is in relative
remission and doing so well, only to contradict his own findings and testify
that claimant is so severely disabled that she cannot return to work.”
• “Dr. Kim’s deposition testimony calls into question claimant’s status when
she initially saw him. He testified that claimant came to see him for ‘chronic
intractable headaches that apparently did not respond to a variety of different
medications that she had tried already before she came to see me.’ (Exhibit
B10F/6) Notably, headache were well-controlled prior to seeing Dr. Kim,
according to Exhibits B2F/36-39, 41-45, 54-57 . . .”
• “Dr. Kim saw claimant 5 times. There is no notation of any exam being
rescheduled due to claimant’s impairments. Each exam is generally
unremarkable. Dr. Kim saw claimant on August 5, 2019 where she had
unremarkable gait and, generally, a normal exam; on September 9 and 18,
2019 where the exams were virtually normal, but for gait apraxia; on March
3, 2020 where Dr. Kim told claimant to follow up in 4 months unless present
symptoms worsen, or new symptoms arise; and, 4 months later on July 20,
2020, when he recommended Botox injections (which claimant had done in
the past). (Exhibits B3F, B6F, B8F, B9F).”
• “His reports of her past treatment do not coincide with Exhibit B2F and the
improvement noted therein with treatment. Dr. Kim’s exams show claimant
with intact memory recall, fluent speech without [aphasia] or dysarthria,
visual field and coordination was normal. He noted gait apraxia at times, but
made no comment on it, despite the fact that he is a board[-]certified
neurologist that addresses motor function. In both exams, he noted that motor
function is unchanged from the prior exam, which was generally normal at
the outset.”
• “Further, he noted claimant has disabling vertigo. Much of Dr. Kim’s
statements are based on subjective reports, as there is no evidence of record
that claimant appears dizzy. In fact, most, if not all exams show claimant’s
physical findings normal and intact. If she was in distress, in pain, showing
pain behaviors, or having headaches or migraines as severely or as frequently
as alleged, there should be at least some notation of it being observed by her
treating doctors.”
(Tr. 22-23).
In synthesizing the ALJ’s justification for finding Dr. Kim’s opinion partially
persuasive, the reasons boil down as follows. First, Dr. Kim’s statements on
disability were not opinions and were not helpful. Second, Dr. Kim’s relatively
normal exam findings did not support his opinion, which meant that his opinion was
based on subjective complaints. The record also contained no notations that Plaintiff
rescheduled her appointments, so essentially, she should have had symptoms at least
at some of her visits. Third, if treatment was as ineffective as Dr. Kim opined, as a
board-certified doctor in multiple specialties, he should have ordered alternative
treatments. Fourth, Dr. Kim did not address Plaintiff’s gait apraxia. (Tr. 22-23).
Substantial evidence does not support the ALJ’s reasoning. To begin, the ALJ
found Dr. Kim’s opinion partially persuasive, but it was unclear what part, if any,
the ALJ found persuasive. (Tr. 22). As to her reasoning, the ALJ first determined
that Dr. Kim’s opinion on disability was not an opinion and was not helpful because
he did not list her functional limitations. (Tr. 22). Dr. Kim explained that Plaintiff
suffered from drug-resistant, severely debilitating headaches, with other
impairments such as mental fogging, forgetfulness, and inability to focus. (Tr. 461).
Also associated with the headache pain, are photophobia or phonophobia and
nausea. (Tr. 459). Dr. Kim found that these debilitating headache symptoms occur
over 20 days per month, and Plaintiff would be unable to function on these days (Tr.
460). While not a true function-by-function analysis, it is clear that Dr. Kim opined
Plaintiff would be unable to function at a work setting while in the midst of a
headache or related symptoms, would have mental fogginess, forgetfulness, and
inability to focus, and therefore would have excessive absences from work.
Second, while true Dr. Kim’s exams showed relatively normal findings and
that Plaintiff was doing well at times, as a board-certified physician in neurology
and headaches, he clearly found that Plaintiff had been and continued to suffer from
debilitating headaches with associated symptoms for many years. As Dr. Kim noted,
Plaintiff’s medications worked for a period of time and during this period her
headaches were mainly in remission and she was doing well, but then her
medications became suboptimal and no longer provided relief. (Tr. 447). Further,
present-day laboratory tests cannot prove migraines. See Beard v. Kijakazi, No.
4:20-cv-00463-RDP, 2021 WL 3473216, at *7 (N.D. Ala. Aug. 6, 2021) (citing
Ortega v. Chater, 933 F. Supp. 1071, 1075 (S.D. Fla. 1996)). And as a general
matter, an ALJ may not substitute her opinion on medical issues for that of a medical
expert. Hand v. Soc. Sec. Admin., Comm’r, 786 F. App’x 220, 224 (11th Cir. 2019)
(citing Graham v. Bowen, 786 F.2d 1113, 1115 (11th Cir. 1986); Freeman v.
Schweiker, 681 F.2d 727, 731 (11th Cir. 1982)). Although the ALJ would have liked
Plaintiff to see Dr. Kim while in the midst of a migraine headache or while having
associated symptoms, Dr. Kim did not need this to diagnose Plaintiff, prescribe a
treatment plan, or opine on the associated debilitating functions caused by these
headaches and associated symptoms.
Third, the ALJ posited that if the continued treatments were ineffective, Dr.
Kim should have tried something else. (Tr. 22). But Dr. Kim analyzed Plaintiff’s
medication regimen at each visit, taking Plaintiff off certain ineffective medications
and trying others. He prescribed different combinations of medications to try to find
a combination that would be effective permanently and not for short periods of time.
(See Tr. 437-450). He also suggested Botox and a NeuroMag trial. (Tr. 442, 450).
Finally, the ALJ discounts Dr. Kim’s opinion because he noted Plaintiff’s gait
apraxia, but does not address it. (Tr. 23). The ALJ failed to build a logical bridge
between this comment and finding Dr. Kim’s opinion partially persuasive.
Substantial evidence does not support the ALJ’s reasons for finding Dr. Kim’s
opinion unsupported by his treatment notes, and therefore partially unpersuasive.
Next, as to consistency with other medical opinions, the ALJ found Dr. Kim’s
opinion inconsistent with other medical evidence, specifically the treatment notes of
Plaintiff’s primary care physician. (Tr. 22-23). The ALJ found the treatment notes
of Dr. Kim and Plaintiff’s primary care physician consistent, and used the example
that the medication Emgality was working well. The ALJ questioned Dr. Kim’s
statement that when Plaintiff began seeing him, her chronic intractable headaches
did not respond to various medications, when in actuality, the ALJ claimed
Plaintiff’s headaches were well controlled before seeing Dr. Kim. (Tr. 22-23).
Again, while Plaintiff’s headaches were at times well controlled with medication,
the medication appeared to become ineffective over time and her physicians tried
different medication combinations to attempt to find permanent relief. Plaintiff saw
Dr. Kim for her ongoing problems with headaches, the ineffectiveness of her
medication, and associated issues. (Tr. 437). The ALJ specifically mentioned the
medication, Emgality, as was working well, but as with her other medications,
Plaintiff eventually had a suboptimal response to it and Dr. Kim switched Plaintiff
to a different medication. (Tr. 446-47). For these reasons, substantial evidence does
not support the ALJ’s assessment of the consistency of Dr. Kim’s opinion with other
evidence of record.
The ALJ’s assessment of the persuasiveness of Dr. Kim’s opinion is not
supported by substantial evidence. The ALJ appears to substitute her opinion for that
of Dr. Kim. Thus, remand is warranted to reevaluate Dr. Kim’s opinion.
B. Subjective Complaints
Plaintiff argues that the ALJ did not properly evaluate Plaintiff’s subjective
complaints from her migraine headaches. (Doc. 17, p. 16). Because the Court is
remanding this action to reevaluate Dr. Kim’s opinion, the Court will also require
the Commissioner to reevaluate Plaintiff’s subjective symptoms.
C. Validly Appointed Commissioner of Social Security
Plaintiff argues that the Commissioner of Social Security was not validly
appointed on November 2, 2020, the date of Plaintiff’s unfavorable decision. (Doc.
17 p. 18). Plaintiff claims that the Social Security Administration knowingly violated
Plaintiff’s constitutional rights and she is entitled to remand for a de novo hearing
before a new ALJ. (Doc. 17, p. 23). The Commissioner argues that she is not entitled
to a rehearing on her disability claim. (Doc 22, p. 6-22). Because the Court is
remanding this case on a different issue, the Court need not reach this issue.
II. Conclusion
For the reasons discussed above, the decision of the Commissioner is
REVERSED and REMANDED such that this action is remanded under sentence
four of 42 U.S.C. § 405(g) for the Commissioner to reconsider Dr. Kim’s opinion,
and reevaluate Plaintiff's subjective complaints. The Clerk of Court is directed to
enter judgment consistent with this opinion, terminate any motions and deadlines,
and afterward close the file.
DONE and ORDERED in Fort Myers, Florida on August 18, 2022.
UNITED STATES MAGISTRATE JUDGE
Copies furnished to:
Counsel of Record
Unrepresented Parties