Khan v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

AFRENA NAZRENE KHAN,

Plaintiff,

v. Case No: 6:21-cv-1428-EJK

COMMISSIONER OF SOCIAL

SECURITY,

Defendant.

ORDER1

This cause comes before the Court on Plaintiff's appeal of an administrative

decision denying her application for Supplemental Security Income (“SSI”), alleging

October 1, 2018, as the disability onset date. (Doc. 26 at 1.) In a decision dated March

2, 2021, the Administrative Law Judge (“ALJ”) found that Plaintiff was not disabled.

(Tr. 12.) Plaintiff has exhausted her available administrative remedies and the case is

properly before the Court. The undersigned has reviewed the record, the joint

memorandum (Doc. 26), and the applicable law. For the reasons stated herein, the

Court AFFIRMS the Commissioner’s decision.

1 On December 15, 2021, both parties consented to the exercise of jurisdiction by a

magistrate judge in this case. (Doc. 19.) Accordingly, the case was referred to the

undersigned by an Order of Reference on January 20, 2022. (Doc. 22.)

I. ISSUE ON APPEAL

Plaintiff’s sole issue on appeal is whether the ALJ applied the correct legal

standards to the March 12, 2020 opinion of Plaintiff’s treating rheumatologist, Javaid

S. Sheikh, M.D.

II. STANDARD OF REVIEW

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).

III. ANALYSIS

Plaintiff states that the ALJ erred in evaluating the opinion of her doctor, Dr.

Sheikh, of the Orlando Arthritis Institute, arguing that the ALJ failed to adequately

consider the “supportability” and “consistency” factors as required by 20 C.F.R. §

404.1520c(b)(2). (Doc. 26 at 16.) Plaintiff further argues that this error, in turn, led the

ALJ to err at step three of the sequential evaluation process. (Id. at 17–18.) The

Commissioner argues in response that the ALJ’s treatment of Dr. Sheikh’s opinion

adequately addressed the factors of supportability and consistency, and even if it did

not, any failure to do so was harmless. (Doc. 26 at 23–24.)

Under the revised regulations, the Commissioner no longer “defer[s] or give[s]

any specific evidentiary weight, including controlling weight, to any medical

opinion(s) or prior administrative medical finding(s), including those from [] medical

sources.” 20 C.F.R. §§ 1520c(a), 416.920c(a). Rather, the Commissioner must

“consider” the “persuasiveness” of all medical opinions and prior administrative

medical findings. Id. To that end, the Commissioner considers five factors: 1)

supportability; 2) consistency; 3) relationship with the claimant;2 4) specialization and

5) other factors “that tend to support or contradict a medical opinion or prior

administrative medical finding.” Id. §§ 404.1520c(c); 416.920c(c).

The most important of these factors are supportability and consistency, and the

ALJ must explain the consideration of those two factors. Id. §§ 404.1520c(a), (b)(2);

416.920c(a), (b)(2). The ALJ may, but is not required to, explain how he or she

considered the other factors (i.e., relationship with claimant, specialization, and “other

factors”). Id. §§ 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

2 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).

themselves do not require the ALJ to explain the consideration of each opinion from

the same source. Id. §§ 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.

Id. In sum, the ALJ’s analysis is directed to whether the medical source’s opinion is

supported by the source’s own records and consistent with the other evidence of

record.

On March 12, 2020, Dr. Sheikh completed an Application for Disabled Person

Parking Permit for Plaintiff. (Tr. 309.) This was a one-page, check-the-box form

submitted to the Florida Department of Highway Safety and Motor Vehicles wherein

Dr. Sheikh stated that Plaintiff needed a permanent disability permit due to severe

limitations in her ability to walk without the use of an assistive device. (Id.)

The ALJ noted in her opinion that “Dr. Sheikh submitted an application for a

disabled person parking permit, and noted Claimant has severe limitations and the

inability to walk without the use of [a] device.” (Tr. 25.) Later, in the opinion, the ALJ

noted:

Dr. Sheikh’s opinions in the March 12, 2020 application for

a disabled person parking permit, were made for the

purpose of acquiring this permit. (Exhibit 18E). Further, the

opinions were not fully explained or broken down in more

specific limitations, which also infer these determinations

were not meant as permanent work restrictions.

Additionally, these opinions were in the form of

checkmarks as a basic foundational reason for the

application of the permit rather than as medical advice for

restrictions. These opinions are unpersuasive.

(Tr. 31.) The ALJ ultimately did not account for the use of a walker or other assistive

device in the RFC assessment. Therein, the ALJ determined that:

[C]laimant has the RFC for sedentary work (20 CFR

416.967(a)) except occasional balancing, stooping,

kneeling, crouching, crawling and climbing ramps and

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

heights, work with dangerous machinery and dangerous

tools, constant temperatures over 90°F and under 40°F, foot

controls, constant pushing and pulling with the upper

extremities, and bilateral overhead reaching. Work tasks

should be 1-5 steps, and learned in 30 days.

(Tr. 23.) Using this RFC, the Vocational Expert (“VE”) testified that Plaintiff could

perform jobs such as a document preparer, parimutuel ticket checker, and call out

operator, and thus, she was not disabled. (Tr. 32–33.)

While the ALJ’s analysis of Dr. Sheikh’s opinion adequately addressed the

“supportability” factor, the ALJ did not address how Dr. Sheikh’s opinion was

inconsistent with other record evidence. Hanna v. Astrue, 395 F. App’x 634, 636 (11th

Cir. 2010) (“The ALJ must state the grounds for his decision with clarity to enable us

to conduct meaningful review.”); Flentroy-Tennant v. Astrue, No. 3:07-cv-101-J-TEM,

2008 WL 876961, at *8 (M.D. Fla. Mar. 27, 2008) (“An ALJ is required to build an

accurate and logical bridge from the evidence to his or her conclusion.”).

Specifically, the ALJ did not analyze the numerous inconsistencies in the record

as to whether or not Plaintiff needed a walker to ambulate. For example, the ALJ

noted at one point, Plaintiff’s “[g]ait [was] normal; no assistive device is needed.” (Tr.

23). However, the ALJ also recognized that Plaintiff was prescribed a walker at the

hospital “for unknown reasons,” and summarily concluded, “the evidence fails to

support a need for same.” (Id.) The ALJ then stated at one point that “Dr. Mesa noted

Claimant complained of being unable to move her left leg and a few minutes after, was

seen walking around without focal deficits.” (Tr. 26.) At another turn, the ALJ stated

Plaintiff’s consultative psychologist saw her “on June 22, 2020 and observed gait was

slow and effortful, as she was using a walker.” (Tr. 27.) What the ALJ failed to do was

contextualize Dr. Sheikh’s opinion regarding Plaintiff’s need for an ambulatory device

and discuss its consistency (or lack thereof) with other record evidence.

Because the ALJ did not fully explain her consideration of the consistency factor

with regard to Dr. Sheikh’s opinion, the undersigned would ordinarily conclude that

ALJ’s determination is not supported by substantial evidence. Brown v. Comm’r of Soc.

Sec., No. 6:20-cv-840-Orl-GJK, 2021 WL 2917562, at *4 (M.D. Fla. July 12, 2021)

(noting that when evaluating medical opinions under the new regulations, the ALJ

must “explain his decision, particularly with respect to supportability and consistency”)

(emphasis in original).

However, the Commissioner goes on to argue that, even if the ALJ erred in

rejecting Dr. Sheikh’s opinion, the error was harmless, because, at step five, the VE

testified that the use of a walker to ambulate would not preclude Plaintiff from

performing the three jobs the VE identified. (Tr. 59.) Specifically, the ALJ asked the

VE, “If the individual utilized a walked to ambulate, would that impact these jobs?”

and the VE responded, “No.” (Id.)

Thus, the Court agrees that such error was harmless because the application of

Dr. Sheikh’s limitation of a walker would not change the ALJ’s consideration of jobs

Plaintiff could perform in the national economy. Caldwell v. Barnhart, 261 F. App’x

188, 190 (11th Cir. 2008) (unpublished) (finding harmless error where ALJ failed to

apply limitations set by Plaintiff’s doctor where such limitations would have not

changed the result). Based on the VE’s testimony, the ALJ found that Plaintiff had the

RFC to perform existing jobs in significant numbers in the national economy. And the

VE testified that the jobs could be done with the use of an ambulatory device. Thus,

the ultimate failure of the ALJ to articulate the inconsistency of Dr. Sheikh’s opinion

in light of the record evidence and why it was disregarded amount to harmless error.

Plaintiff counters that the ALJ’s failure to properly evaluate Dr. Sheikh’s

opinion led the ALJ to err at step three. (Doc. 26 at 17.) There, the ALJ found that

Plaintiff did not have an impairment or combination of impairments that met or

medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404,

Subpart P, Appendix 1. (Tr. 22). At step three, the ALJ elaborated as follows:

In making this finding, the undersigned has given particular

consideration to Sections 1.00 et seq., Musculoskeletal

System; and 11.00 et seq., Neurological Disorders. Despite

Claimant’s combined impairments, the medical evidence

does not document listing-level severity, and no acceptable

medical source has mentioned findings equivalent in

severity to the criteria of any listed impairment, individually

or in combination.

(Tr. 23.)

Plaintiff argues that Dr. Sheikh’s opinion that Plaintiff had an inability to walk

without the use of an assistive device supported a finding that Plaintiff’s spinal disorder

equaled the requirements of Listing 1.04(C). (Doc. 26 at 17–18.) This does not appear

to be accurate. As the Commissioner points out, Listing 1.04(C) requires a showing of

lumbar spinal stenosis resulting in pseudoclaudication. 20 C.F.R. Part 404, Subpart P,

Appendix 1, § 1.04C. (Doc. 26 at 27.) “To ‘meet’ a Listing, a claimant must have a

diagnosis included in the Listings and must provide medical reports documenting that

the conditions meet the specific criteria of the Listings and the duration requirement.”

Wilson v. Barnhart, 284 F.3d 1219, 1224 (11th Cir. 2002) (per curiam) (citations

omitted). Plaintiff has not pointed the undersigned to any documentation to conclude

that Plaintiff has the required diagnosis to meet Listing 1.04(C).

IV. CONCLUSION

Upon consideration of the foregoing, it is ORDERED and ADJUDGED that:

1. The Commissioner’s final decision in this case is AFFIRMED.

2. The Clerk of Court is DIRECTED to enter judgment in favor of Defendant

and CLOSE the file.

DONE and ORDERED in Orlando, Florida on November 18, 2022.

A □□ KIDD

UNITED STATES MAGISTRATE JUDGE