Acevedo v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

PAUL A. ACEVEDO,

Plaintiff,

v. Case No. 6:21-cv-472-JRK

KILOLO KIJAKAZI,

Acting Commissioner of Social

Security,

Defendant.

OPINION AND ORDER1

I. Status

Paul A. Acevedo (“Plaintiff”) is appealing the Commissioner of the Social

Security Administration’s (“SSA(’s)”) final decision denying his claim for

disability insurance benefits (“DIB”). Plaintiff’s alleged inability to work is the

result of “chronic lower back [sic], history of 3 disk infusion,” “radiculopathy,”

“cervical disk bulges[] C4 through C6,” “depression,” “anxiety,” “panic attacks,”

and “insomnia.” Transcript of Administrative Proceedings (Doc. No. 23; “Tr.” or

“administrative transcript”), filed August 10, 2021, at 70, 84, 289 (some

capitalization omitted). Plaintiff protectively filed an application for DIB on

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

Magistrate Judge. See Notice, Consent, and Reference of a Civil Action to a Magistrate Judge

(Doc. No. 22), filed August 10, 2021; Reference Order (Doc. No. 25), entered August 12, 2021.

October 23, 2015, alleging a disability onset date of December 8, 2012.2 Tr. at

251-52; see Tr. at 248. Plaintiff later amended his alleged disability onset date

to January 1, 2015. Tr. at 274. The application was denied initially, Tr. at 70-

81, 82, 83, 123-25, and upon reconsideration, Tr. at 84-100, 101, 102, 129-33.

On February 12, 2019, an Administrative Law Judge (“ALJ”) held a

hearing, during which she heard testimony from Plaintiff, who was represented

by counsel, and a vocational expert (“VE”). See Tr. at 47-69. At the time,

Plaintiff was forty-six (46) years old. Tr. at 50. On May 14, 2019, the ALJ issued

a decision finding Plaintiff not disabled through the date of the decision. See Tr.

at 106-13. Plaintiff sought review of the ALJ’s decision. Tr. at 193-95. Then, on

April 10, 2020, the Appeals Council issued an Order remanding the case to the

ALJ for further evaluation of Plaintiff’s mental impairments and RFC. Tr. at

120-21.

On September 14, 2020, the ALJ held another hearing at which Plaintiff

(still represented by counsel) and a VE testified.3 Tr. at 31-46. On October 14,

2 Although actually filed on October 26, 2015, see Tr. at 251, the protective filing

date for the DIB application is listed elsewhere in the administrative transcript as October

23, 2015, see, e.g., Tr. at 70, 84, 248.

3 This hearing was held via telephone, with Plaintiff’s consent, because of

extraordinary circumstances caused by the earlier stages of the COVID-19 pandemic. Tr. at

34, 237.

2020, the ALJ issued another Decision again finding Plaintiff not disabled

through the date of the Decision. Tr. at 15-24.

Thereafter, Plaintiff sought review of the Decision by the Appeals

Council. See Tr. at 4-5 (Appeals Council exhibit list and order), 238-46 (request

for review). On January 15, 2021, the Appeals Council denied Plaintiff’s request

for review, Tr. at 1-3, thereby making the ALJ’s Decision the final decision of

the Commissioner. On March 14, 2021, Plaintiff commenced this action through

counsel under 42 U.S.C. § 405(g) by timely filing a Complaint (Doc. No. 1),

seeking judicial review of the Commissioner’s final decision.

On appeal, Plaintiff challenges 1) “[w]hether the ALJ’s RFC

determination that [Plaintiff] could perform work tasks from 1-5 steps each and

learned in 30 days adequately accounts for [Plaintiff’s] ‘moderate’ limitations in

concentration, persistence, or pace, and whether the ALJ was required to

include this ‘moderate’ limitation in a hypothetical question to the [VE]”; 2)

“[w]hether the ALJ failed to comply with SSR 00-4p and inquire about actual

or apparent conflicts or inconsistencies between [VE] hearing testimony and the

Dictionary of Occupational Titles (‘DOT’)”; and 3) “[w]hether the ALJ failed to

adequately consider FMLA and Prudential Insurance functional capacity

forms, completed by [Frank] Yanez, [M.D.,] as medical source statements and

further failed to adequately weigh such statements.” Joint Memorandum (Doc.

No. 27; “Joint Memo”), filed November 8, 2021, at 16, 21, 23 (emphasis omitted).

After a thorough review of the entire record and consideration of the parties’

respective arguments, the undersigned finds that the Commissioner’s final

decision is due to be reversed and remanded for reconsideration of the opinions

set forth in the FMLA and Prudential Insurance functional capacity forms.

On remand, an evaluation of this evidence may impact the

Administration’s consideration of the other issues raised in this appeal. For this

reason, the Court need not address Plaintiff’s remaining arguments. See

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

(declining to address certain issues because they were likely to be reconsidered

on remand); Demenech v. Sec’y of the Dep’t of Health & Human Servs., 913 F.2d

882, 884 (11th Cir. 1990) (per curiam) (concluding that certain arguments need

not be addressed when the case would be remanded on other issues).

II. The ALJ’s Decision

When determining whether an individual is disabled,4 an ALJ must

follow the five-step sequential inquiry set forth in the Code of Federal

Regulations (“Regulations”), determining as appropriate whether the claimant

(1) is currently employed or engaging in substantial gainful activity; (2) has a

4 “Disability” is defined in the Social Security Act as the “inability 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 12 months.” 42 U.S.C. §§ 423(d)(1)(A),

1382c(a)(3)(A).

severe impairment; (3) has an impairment or combination of impairments that

meets or medically equals one listed in the Regulations; (4) can perform past

relevant work; and (5) retains the ability to perform any work in the national

economy. 20 C.F.R. § 404.1520; see also Simon v. Comm’r, Soc. Sec. Admin., 7

F.4th 1094, 1101-02 (11th Cir. 2021) (citations omitted); Phillips v. Barnhart,

357 F.3d 1232, 1237 (11th Cir. 2004). The claimant bears the burden of

persuasion through step four, and at step five, the burden shifts to the

Commissioner. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987).

Here, the ALJ followed the five-step sequential inquiry. See Tr. at 17-23.

At step one, the ALJ determined Plaintiff “has not engaged in [substantial

gainful activity] since January 1, 2015, the alleged onset date.” Tr. at 17

(emphasis and citation omitted). At step two, the ALJ found that Plaintiff “has

the following severe impairments: mental health disorders (affective disorder,

generalized anxiety disorder (GAD), panic disorder, and depression) and

degenerative disc disease (DDD) of the lumbar and cervical spine.” Tr. at 18

(emphasis and citation omitted). At step three, the ALJ ascertained that

Plaintiff “does not have an impairment or combination of impairments that

meets or medically equals the severity of one of the listed impairments in 20

[C.F.R.] Part 404, Subpart P, Appendix 1.” Tr. at 18 (emphasis and citation

omitted).

The ALJ determined Plaintiff has the following RFC:

[Plaintiff can perform] sedentary work (20 [C.F.R. §] 404.1567(a))

except, occasionally balance, stoop, kneel, crouch, crawl, and climb

ramps and stairs, but never ladders, ropes, or scaffolds. Avoid: work

at heights, work with dangerous machinery and tools, constant

vibration, constant pushing and pulling with the upper extremities,

foot controls, and constant temperatures over 90ºF and under 40ºF.

Work tasks should be 1 to 5 steps each and learned in 30 days.

Tr. at 19 (emphasis omitted).

At step four, the ALJ relied on the testimony of the VE and found that

Plaintiff “is unable to perform any past relevant work” as a “Cable Installer and

Repairer.” Tr. at 22 (some emphasis and citation omitted). At step five, after

considering Plaintiff’s age (“42 years old . . . on the alleged disability onset

date”), education (“at least a high school education”), work experience, and RFC,

Tr. at 22, the ALJ again relied on the VE’s testimony and found “there are jobs

that exist in significant numbers in the national economy that [Plaintiff] can

perform,” such as “Addresser,” “Call Out Operator,” and “Document Preparer,”

Tr. at 23 (some emphasis omitted). The ALJ concluded Plaintiff “has not been

under a disability . . . from January 1, 2015, through the date of th[e D]ecision.”

Tr. at 23 (emphasis and citation omitted).

III. Standard of Review

This Court reviews the Commissioner’s final decision as to disability

pursuant to 42 U.S.C. § 405(g). Although no deference is given to the ALJ’s

conclusions of law, findings of fact “are conclusive if . . . supported by

‘substantial evidence.’” Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001)

(citing Falge v. Apfel, 150 F.3d 1320, 1322 (11th Cir. 1998)). “Substantial

evidence is something ‘more than a mere scintilla, but less than a

preponderance.’” Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005)

(quoting Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987)). The substantial

evidence standard is met when there is “such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.” Falge, 150 F.3d at 1322

(quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)); see also Biestek v.

Berryhill, 139 S.Ct. 1148, 1154 (2019); Samuels v. Acting Comm’r of Soc. Sec.,

959 F.3d 1042, 1045 (11th Cir. 2020) (citation omitted). It is not for this Court

to reweigh the evidence; rather, the entire record is reviewed to determine

whether “the decision reached is reasonable and supported by substantial

evidence.” Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991) (citation

omitted). The decision reached by the Commissioner must be affirmed if it is

supported by substantial evidence—even if the evidence preponderates against

the Commissioner’s findings. Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155,

1158-59 (11th Cir. 2004) (per curiam).

IV. Discussion

Plaintiff argues the ALJ erred with respect to medical opinions rendered

on forms that were completed for other (non-DIB) programs but were made part

of the SSA’s file: a Family and Medical Leave Act form entitled “Certification

Form A,” (“FMLA Form”) and two Prudential Insurance forms evidently

completed for a group disability insurance claim (“Prudential Forms”). See Joint

Memo at 24-25. Plaintiff’s treating physician, Dr. Yanez, rendered the opinions

on the forms. See Tr. at 604-30. The FLMA Form and the Prudential Forms all

appear together in Exhibit 13F in the administrative transcript. See Tr. at 604-

30.

The ALJ assigned “[l]ittle weight . . . to opinions of Prudential Insurance

Agency, as its findings are not consistent with evidence of record,” and cited

“Exhibit 13F,” Tr. at 22, which includes the forms at issue, see Tr. at 604-30.

Plaintiff contends, however, that the ALJ “mischaracterized” the Prudential

Forms as opinions rendered by Prudential, and “[i]t is not apparent from this

statement that the ALJ was even aware that one of [Plaintiff’s] treating

physicians, Dr. Yanez, had completed the Prudential Forms.” Joint Memo at 24

n.16, 25. Plaintiff also asserts the ALJ failed altogether to mention or consider

the FMLA Form. Id. at 24. According to Plaintiff, the ALJ’s failure to properly

evaluate the medical opinions set forth on all of the forms at issue makes it

impossible to determine whether the Decision is supported by substantial

evidence. Id. at 25.

Defendant essentially asserts that the ALJ’s reference to Exhibit 13F

sufficiently covers all opinions contained therein. Id. at 26. Defendant also

provides rationale—that the ALJ did not provide—to support the ALJ’s

ultimate finding that the opinions contained in Exhibit 13F are entitled to little

weight because they are inconsistent with the evidence. Id. at 26-29.

“Medical opinions5 are statements from [physicians or other] acceptable

medical sources that reflect judgments about the nature and severity of [a

claimant’s] impairment(s), including [the claimant’s] symptoms, diagnosis and

prognosis, what [the claimant] can still do despite impairment(s), and [the

claimant’s] physical or mental restrictions.” 20 C.F.R. § 404.1527(a)(1).

Acceptable medical sources include licensed physicians, licensed psychologists,

licensed optometrists, licensed podiatrists, and qualified speech-language

pathologists. 20 C.F.R. § 404.1502(a).6

The Regulations establish a hierarchy among medical opinions that

provides a framework for determining the weight afforded each medical

opinion. See 20 C.F.R. § 404.1527. Essentially, “the opinions of a treating

physician are entitled to more weight than those of a consulting or evaluating

5 On January 18, 2017, the SSA revised the Rules regarding the evaluation of

medical evidence and symptoms for claims filed on or after March 27, 2017. See Revisions to

Rules Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 5,844, 5,844 (January 18,

2017); see also 82 Fed. Reg. 15,132 (Mar. 27, 2017) (amending and correcting the final Rules

published at 82 Fed. Reg. 5,844). Because Plaintiff filed his claim before that date, the

undersigned cites the older Rules and Regulations (that are applicable to the date the claim

was filed).

6 For claims filed on or after March 27, 2017, acceptable medical sources also

include licensed audiologists, licensed Advanced Practice Registered Nurses, and licensed

Physician Assistants. 20 C.F.R. § 404.1502(a)(6)-(8).

health professional,” and “[m]ore weight is given to the medical opinion of a

source who examined the claimant than one who has not.” Schink v. Comm’r of

Soc. Sec., 935 F.3d 1245, 1259, 1260 n.5 (11th Cir. 2019). Further, “[n]on-

examining physicians’ opinions are entitled to little weight when they

contradict opinions of examining physicians and do not alone constitute

substantial evidence.” Id. at 1260 (citing Sharfarz v. Bowen, 825 F.2d 278, 280

(11th Cir. 1987) (per curiam)). The following factors are relevant in determining

the weight to be given to a physician’s opinion: (1) the “[l]ength of the treatment

relationship and the frequency of examination”; (2) the “[n]ature and extent of

[any] treatment relationship”; (3) “[s]upportability”; (4) “[c]onsistency” with

other medical evidence in the record; and (5) “[s]pecialization.” 20 C.F.R.

§ 404.1527(c)(2)-(5); see also 20 C.F.R. § 404.1527(f); Walker v. Soc. Sec. Admin.,

Comm’r, 987 F.3d 1333, 1338 (11th Cir. 2021) (citation omitted); McNamee v.

Soc. Sec. Admin., 164 F. App’x 919, 923 (11th Cir. 2006) (citation omitted)

(stating that “[g]enerally, the opinions of examining physicians are given more

weight than those of non-examining physicians[;] treating physicians[’

opinions] are given more weight than [non-treating physicians;] and the

opinions of specialists are given more weight on issues within the area of

expertise than those of non-specialists”).

With regard to a treating physician,7 the Regulations instruct ALJs how

to properly weigh such a medical opinion. See 20 C.F.R. § 404.1527(c)(2).

Because treating physicians “are likely to be the medical professionals most

able to provide a detailed, longitudinal picture of [a claimant’s] medical

impairment(s),” a treating physician’s medical opinion is to be afforded

controlling weight if it is “well-supported by medically acceptable clinical and

laboratory diagnostic techniques and is not inconsistent with the other

substantial evidence” in the record. Id. When a treating physician’s medical

opinion is not due controlling weight, the ALJ must determine the appropriate

weight it should be given by considering the factors identified above (the length

of treatment, the frequency of examination, the nature and extent of the

treatment relationship, as well as the supportability of the opinion, its

consistency with the other evidence, and the specialization of the physician). Id.

If an ALJ concludes the medical opinion of a treating physician should be

given less than substantial or considerable weight, he or she must clearly

articulate reasons showing “good cause” for discounting it. Simon, 7 F.4th at

1104 (citation omitted); Walker, 987 F.3d at 1338 (citation omitted); Schink, 935

7 A treating physician is a physician who provides medical treatment or

evaluation to the claimant and who has, or has had, an ongoing treatment relationship with

the claimant, as established by medical evidence showing that the claimant sees or has seen

the physician with a frequency consistent with accepted medical practice for the type of

treatment and/or evaluation required for the medical condition. See 20 C.F.R.

§ 404.1527(a)(2).

F.3d at 1259; Hargress v. Soc. Sec. Admin., Comm’r, 883 F.3d 1302, 1305 (11th

Cir. 2018) (citation omitted); Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir.

1997). Good cause exists when (1) the opinion is not bolstered by the evidence;

(2) the evidence supports a contrary finding; or (3) the opinion is conclusory or

inconsistent with the treating physician’s own medical records. Walker, 987

F.3d at 1338; Schink, 935 F.3d at 1259; Hargress, 883 F.3d at 1305; Phillips,

357 F.3d at 1240-41; see also Edwards v. Sullivan, 937 F.2d 580, 583-84 (11th

Cir. 1991); Schnorr v. Bowen, 816 F.2d 578, 582 (11th Cir. 1987) (stating that a

treating physician’s medical opinion may be discounted when it is not

accompanied by objective medical evidence).

An ALJ is required to consider every medical opinion. See 20 C.F.R.

§ 404.1527(c) (stating that “[r]egardless of its source, we will evaluate every

medical opinion we receive”). While “the ALJ is free to reject the opinion of any

physician when the evidence supports a contrary conclusion,” Oldham v.

Schweiker, 660 F.2d 1078, 1084 (5th Cir. 1981) (citation omitted); see also 20

C.F.R. § 404.1527(c)(2), “the ALJ must state with particularity the weight given

to different medical opinions and the reasons therefor,” Winschel v. Comm’r of

Soc. Sec., 631 F.3d 1176, 1179 (11th Cir. 2011) (citing Sharfarz, 825 F.2d at

279); Moore v. Barnhart, 405 F.3d 1208, 1212 (11th Cir. 2005); Lewis, 125 F.3d

at 1440. “It is the responsibility of the agency, not the reviewing court, to

supply the justification for its decision and to sufficiently explain the weight it

has given to obviously probative exhibits.” Simon, 7 F.4th at 1105 (quotation

and citations omitted).

Here, at issue, and embedded in Exhibit 13F, are Dr. Yanez’s opinions on

the FMLA form and the Prudential Forms. In the forms, Dr. Yanez gave specific

work-related limitations that qualify as medical opinions. See Tr. at 604-30. As

noted, the ALJ’s only potential reference to the opinions set forth in these forms

was the following sentence: “Little weight is given to opinions of Prudential

Insurance Agency, as its findings are not consistent with the evidence of record,

as cited above. (Exhibit 13F).” Tr. at 22.

The ALJ erred in evaluating Dr. Yanez’s opinions. First, it is unclear if

the ALJ was even aware the opinions were rendered by Plaintiff’s treating

physician because the ALJ inaccurately referred to “opinions of Prudential

Insurance Agency.” Tr. at 22. Although the opinions were rendered, in part, on

the Prudential Forms, they nonetheless were opinions of Dr. Yanez. Second,

even if the ALJ’s reference to the “Prudential Insurance Agency,” Tr. at 22,

meant that she considered the opinions set forth in the Prudential Forms, it is

unclear if the ALJ realized or considered there was also an FMLA form

containing another opinion (by Dr. Yanez). And third, the ALJ’s conclusory

citation of the “good cause” reason of inconsistency with the rest of the evidence,

without more explanation and rationale, does not allow for meaningful judicial

review. See Simon, 7 F.4th at 1105 (quotation and citations omitted, emphasis

added) (“It is the responsibility of the agency, not the reviewing court, to supply

the justification for its decision and to sufficiently explain the weight it has

given to obviously probative exhibits.”). For all of the foregoing reasons, the

matter must be remanded for reconsideration of the opinions set forth on the

Prudential Forms and the FMLA form.

V. Conclusion

In light of the foregoing, it is

ORDERED:

1. The Clerk of Court is directed to enter judgment pursuant to

sentence four of 42 U.S.C. § 405(g), REVERSING the Commissioner’s final

decision and REMANDING this matter with the following instructions:

(A) Reconsider the opinions set forth on the Prudential Forms and the

FLMA Form (Exhibit 13F); if the opinions are discounted, provide good

cause supported by adequate explanation;

(B) If appropriate, address the other issues raised by Plaintiff in this

appeal; and

(C) Take such other action as may be necessary to resolve this claim

properly.

2. The Clerk is further directed to close the file.

3. In the event benefits are awarded on remand, Plaintiff’s counsel

shall ensure that any § 406(b) fee application be filed within the parameters set

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

on December 7, 2021 in Case No. 3:21-mc-001-TJC (Doc. No. 48, 4 6, 8).

DONE AND ORDERED in Jacksonville, Florida on August 15, 2022.

Verge Boo KAS

JAMES R. KLINDT

United States Magistrate Judge

kaw

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