The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
MARK JAMES SCHULMAN,
Plaintiff,
v. Case No.: 8:22-cv-785-DNF
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
OPINION AND ORDER
Plaintiff Mark James Schulman seeks judicial review of the final decision of
the Commissioner of the Social Security Administration (“SSA”) denying his claim
for adult child disability insurance benefits. The Commissioner filed the Transcript
of the proceedings (“Tr.” followed by the appropriate page number), and the parties
filed legal memoranda setting forth their positions. Plaintiff also filed a Reply Brief.
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).
I. Social Security Act Eligibility, Standard of Review, Procedural
History, and the ALJ’s Decision
A. Social Security Eligibility for Disabled Adult Child Insurance
Benefits
Social Security Disability Insurance (“SSDI”) provides that a disabled adult
child may receive disability insurance benefits under the Social Security Act based
on the earnings record of an insured person who is entitled to old-age or disability
benefits or has died and was a fully or currently insured individual. 42 U.S.C.
§ 402(d); 20 C.F.R. § 404.350(a). To qualify for these benefits, a claimant must meet
the criteria in the regulations, including that the individual is over 18 years old, is
unmarried, and the disability began before the individual became 22 years old. 20
C.F.R. § 404.350(a)(1)-(5).
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 his 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, 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.
In adult child disability insurance benefits cases, the ALJ employs the same
five-step sequential evaluation process set forth in 20 C.F.R. § 404.1520(a)(4) that
applies to adult applicants. Bowes v. Comm’r of Soc. Sec., No. 6:18-cv-349-37TBS,
2018 WL 7020191, at *3 (M.D. Fla. Dec. 27, 2018), report and recommendation
adopted, No. 6:18-cv-349-37TBS, 2019 WL 175269 (M.D. Fla. Jan. 11, 2019). 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 his 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 his past relevant work, the ALJ must determine
at step five whether the claimant’s RFC permits him to perform other work that
exists in the national economy. 20 C.F.R. § 404.1520(a)(4)(v), (g); 20 C.F.R.
§ 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 he is unable
to perform these jobs. Atha, 616 F. App’x at 993.
C. Procedural History
Plaintiff filed an application for adult child disability insurance benefits on
January 21, 2020, alleging disability beginning November 1, 2000. (Tr. 101, 178-
84). The application was denied initially and on reconsideration. (Tr. 101, 116).
Plaintiff requested a hearing and on March 11, 2021, a hearing was held before
Administrative Law Judge Elving Torres (“ALJ”). (Tr. 71-88). On May 26, 2021,
the ALJ entered a decision, finding Plaintiff was not under a disability at any time
from age 18 on July 13, 2005, and prior to July 13, 2009, the date he attained age
22. (Tr. 10-18).
Plaintiff requested review of the decision, but the Appeals Council denied
Plaintiff’s request on October 13, 2021. (Tr. 1-5). Plaintiff initiated the instant action
by Complaint (Doc. 1) filed on April 1, 2022, and the case is ripe for review. The
parties consented to proceed before a United States Magistrate Judge for all
proceedings. (Doc. 14).
D. Summary of ALJ’s Decision
In this matter, the ALJ found Plaintiff was born on July 13, 1987, and had not
attained the age of 22 as of November 1, 2000, the alleged onset date of disability,
“but the adjudication herein is from age 18 on July 13, 2005, through prior to age
22.” (Tr. 12). At step one of the sequential evaluation, the ALJ found that Plaintiff
had not engaged in substantial gainful activity since July 13, 2005, the date he
attained the age of 18. (Tr. 12). At step two, the ALJ found that from the age of 18
and prior to attaining the age of 22, Plaintiff had the following severe impairments:
“bipolar disorder with depression, generalized anxiety disorder, and history of
attention deficit hyperactivity disorder (ADHD).” (Tr. 12). At step three, the ALJ
found that prior to attaining the age of 22, 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. 13).
Before proceeding to step four, the ALJ found that Plaintiff had the following
RFC:
From age 18 and prior to attaining age 22, the claimant had the
residual functional capacity to perform a full range of work at
all exertional levels, but with the following nonexertional
limitations: he could understand and carry out routine,
repetitive, unskilled tasks, make basic decisions, and adjust to
simple changes in a work setting, as long as interaction with
the public, coworkers, and supervisors was no more than
frequent.
(Tr. 14).
At step four, the ALJ found Plaintiff had no past relevant work. (Tr. 17). At
step five, the ALJ found that considering Plaintiff’s age (prior to attaining age 22),
education (at least high school), work experience, and RFC, there are jobs that
existed in significant numbers in the national economy that Plaintiff could have
performed. (Tr. 17). The vocational expert testified that a person with Plaintiff’s
limitations could perform such occupations as:
(1) agricultural worker, DOT 401.687-010,1 medium, unskilled, SVP 2
(2) general farmworker, DOT 402.687-010, medium, unskilled, SVP 2
1 DOT refers to the Dictionary of Occupational Titles.
(3) industrial cleaner, DOT 381.687-018, medium, unskilled, SVP 2.
(Tr. 18). The ALJ concluded that Plaintiff was not under a disability at any time from
age 18 on July 13, 2005, and prior to July 13, 2009, the date he attained the age of
22. (Tr. 18).
II. Analysis
On appeal, Plaintiff raises five issues. As stated by Plaintiff, they are:
(1) The ALJ failed to comply with SSR 18-01p in determining the
established onset date of Plaintiff’s disability.
(2) The ALJ’s mental residual functional capacity assessment is not
supported by substantial evidence.
(3) The ALJ failed to properly consider statements from Plaintiff’s parents
as required by SSR 11-2p.
(4) The ALJ’s reasons for finding the opinion of Dr. Lopez, Plaintiff’s
longtime treating psychiatrist, to be unpersuasive, are not supported by
substantial evidence; and
(5) The ALJ’s reasons for not crediting Plaintiff’s testimony are not
supported by substantial evidence.
(Doc. 25, p. 1). The Court begins with the first issue regarding SSR 18-01p and then
turns to the issue on whether substantial evidence supports the ALJ’s persuasiveness
finding about Dr. Lopez’s opinions.
A. Failure to Comply with SSR 18-01p in Establishing Onset Date
In short, Plaintiff argues the ALJ erred in failing to obtain and consider
Plaintiff’s subsequent favorable Supplemental Security Income (“SSI”) claim,
which was filed on April 18, 2011, and benefits were awarded as of that date. (Doc.
25, p. 14-16). Plaintiff was 23 years old on the SSI application date. (Doc. 25, p. 14).
Before delving into the arguments, some background for the case is helpful.
In order to qualify for disabled adult child insurance benefits, or SSDI, a
plaintiff must: (1) be an insured person’s child; (2) be dependent on the insured; (3)
apply for benefits; (4) be unmarried; and (5) either be under the age of 18, or over
18 years old, and have a disability that began before the age of 22 years, or qualify
for benefits as a full-time student. 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350(a)(1)-
(5). Here, Plaintiff was over the age of 18 when he applied for disabled adult child
insurance benefits. (Tr. 77, 178). As the ALJ explained at the hearing and Plaintiff’s
counsel agreed, the relevant period to consider is from the age of 18 through before
Plaintiff attained the age of 22, or from July 13, 2005, through July 12, 2009. (Tr.
76-77); see also (Tr. 12, 13, 14, 17).
Plaintiff argues that the ALJ erred by not obtaining and considering the SSI
benefits file or even acknowledging the award. (Doc. 25, p. 15-16). To reiterate,
benefits on the SSI claim were awarded as of April 18, 2011, but the relevant time
frame here is from July 13, 2005 through July 12, 2009, more than twenty-one
months before the SSI claim application date. In SSI claims, benefits relate to the
SSI application date and forward. See 20 C.F.R. § 416.335 (“When you file an
application [for SSI] in the month that you meet all the other requirements for
eligibility, the earliest month for which we can pay you benefits is the month
following the month you filed the application.”). Thus, Plaintiff must demonstrate
that the prior claim file contained evidence relevant to the period here, and he has
not.
Plaintiff refers to SSR 18-01p and HALLEX I-2-1-13(B)(2), claiming that
they apply because the Commissioner previously found Plaintiff disabled as of April
18, 2011, at age 23. (Doc. 25, p. 14). Plaintiff’s reliance on these regulations is
misplaced. SSR 18-1p discusses the method to determine an established onset date
in disability claims. SSR 18-1p, 2018 WL 4945639. Plaintiff argues that SSR 18-1p
applies here because the Commissioner previously found Plaintiff disabled as of
April 18, 2011 in the SSI claim, and a potential onset date could have been earlier
than April 18, 2011. (Doc. 25, p. 14; Doc. 29, p. 3). Thus, Plaintiff argues that the
prior claim “may contain” evidence from a potential earlier onset date. (Doc. 29, p.
3).
Plaintiff also relies of HALLEX I-2-1-13(B)(2), which provides in part:
HO staff must consult with an ALJ about obtaining a prior
claim(s) file when it may be necessary for a full adjudication
of the issues before the ALJ. An ALJ will generally find that
evidence in a prior claim(s) file is necessary for a full
adjudication of the issues when the ALJ determines:
• There is a need to establish a longitudinal medical,
educational, or vocational history; or
• The impairment is of a nature that evidence from a prior
claim(s) file could make a difference in establishing whether
disability is present in the current claim.
2014 WL 2600156. Plaintiff argues that HALLEX I-2-1-13(B)(2) supports his
argument that the ALJ should have obtained and considered the prior SSI file. (Doc.
25, p. 16).
In all of his arguments, Plaintiff merely speculates that the prior SSI file “may
contain” some possible relevant evidence to the time period at issue in the instant
SSDI case. As the Commissioner argues, Plaintiff, who had access to his prior file,
did not produce one shred of evidence from the SSI file that related to his functioning
on or before his 22nd birthday, and failed to show any prejudice that would justify
remand in this case. The Court agrees. With no showing that the prior SSI file
contains any evidence relevant to the period here, the ALJ did not err in failing to
acknowledge the prior SSI decision or in failing to obtain the prior claim file. Even
so, because this matter is remanded on other grounds, the Commissioner may
reconsider whether the prior 2011 claim file should be associated and considered
here.
B. Persuasiveness of Dr. Lopez’s Opinions
Plaintiff argues that the reasons for finding Plaintiff’s treating psychiatrist
Ron Lopez, M.D.’s opinions unpersuasive are not supported by substantial evidence.
(Doc. 25, p. 28). The Commissioner contends that the ALJ properly applied the
regulations to determine that Dr. Lopez’s opinions were unpersuasive. (Doc. 27, p.
21). Substantial evidence does not support the ALJ’s finding that Dr. Lopez’s
opinions were unpersuasive.
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. § 416.920c(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), 416.913(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), 416.913(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), 416.913(a)(3).
Dr. Lopez treated Plaintiff since November 2000, well before the relevant
time period, and continued to treat Plaintiff through at least February 2021, a period
of over twenty years. (Tr. 207, 413, 414). Dr. Lopez diagnosed Plaintiff with Bipolar
Disorder, and Mixed and Generalized Anxiety Disorder. (Tr. 415). Along with
progress notes,2 Dr. Lopez wrote three letters dated March 10, 2011, January 25,
2021, and February 23, 2021. (Tr. 207-208, 413-14, 415-16).
Dr. Lopez drafted a March 2011 letter (less than two years from the end of the
relevant period) upon request so that Plaintiff would be considered for transcranial
magnet stimulation. (Tr. 207). In that letter, Dr. Lopez provided a history of
Plaintiff’s mental health issues. (Tr. 207). Plaintiff began seeing Dr. Lopez with
chronic symptoms of anxiety, including worry and separation anxiety, and a refusal
to attend school. (Tr. 207). Dr. Lopez noted that Plaintiff had a significant history of
learning disabilities, which complicated his anxiety. (Tr. 207). Dr. Lopez discussed
2 Dr. Lopez’s progress notes for the relevant period are handwritten and challenging to decipher.
(See Tr. 285-299).
the different types of medication regimens he prescribed to help with Plaintiff’s
issues. (Tr. 207). Dr. Lopez referred to a May 2006 visit when he added Abilify to
the medication regimen “due to increasing episodes of aggression and temper
outbursts.” (Tr. 207, 293). He found Plaintiff responded well to this new regimen
until June 2008, “when he once again decompensated which was related to not being
successful at attending school in the Orlando area and having to return home.” (Tr.
207, 289). Dr. Lopez again adjusted Plaintiff’s medication regimen to address the
problem. (Tr. 207). Dr. Lopez found that “[d]ue to the presence of increased
obsessive symptoms, [Plaintiff] was tried on Luvox, however, Mark did not appear
to be responsive to this medication and we went back to Cymbalta 60 mg qam.” (Tr.
207). By February 2010 – after the relevant period – Dr. Lopez noted that Plaintiff
had increased mood instability and aggressive outbursts, and he changed the
medication regimen again. (Tr. 207).
In a January 2021 letter, Dr. Lopez reiterated that he had been treating Plaintiff
since November 2000, and had been closely monitoring Plaintiff while in treatment.
(Tr. 415). Dr. Lopez found Plaintiff’s condition throughout the years to be severe
“based on the significant impact it has had on his level of global functioning.” (Tr.
415). Dr. Lopez continued to see Plaintiff about every two or three months for
follow-up treatment. (Tr. 415). Dr. Lopez found Plaintiff “fairly stable on his
medication regimen,” even though he continued to have episodes of depression,
difficulties with sleep, and high levels of anxiety throughout the day. (Tr. 415).
While Dr. Lopez found Plaintiff’s symptoms were in remission in January 2021, he
also found that Plaintiff’s “prognosis in regards to being able to return to work are
extremely poor and at this point he has reached overall maximum medical
improvement.” (Tr. 415).
In a February 2021 letter, Dr. Lopez reiterated that Plaintiff’s “condition
through the years has proven to be severe based on the significant impact it has had
on his level of global functioning.” (Tr. 413). He specifically found that “[f]rom July
2005 until July of 2009 the patient’s severe psychiatric condition remained unstable
with frequent periods of decompensation and impairment in all levels of
functioning.” (Tr. 413). Dr. Lopez also noted that Plaintiff was “fairly stable on his
medication regimen” but continued to have episodes of depression, sleep difficulties,
and high levels of anxiety throughout the day.” (Tr. 413). He again found that even
though his symptoms were in remission at that time, his prognosis regarding
returning to work was “extremely poor.” (Tr. 413). Dr. Lopez also found that
Plaintiff’s medications caused significant side effects of sedation, including slowing
cognitive abilities and blunting of mood, impairing Plaintiff’s focus, concentration,
and processing speed. (Tr. 413). Dr. Lopez also opined that Plaintiff’s impairments
could be expected to present almost every day and because of the chronicity of his
mood condition, his symptoms waxed and waned. (Tr. 414). He further opined that
Plaintiff may be absent from work three or four days a week as a result of these
severe symptoms. (Tr. 414).
The ALJ considered Dr. Lopez’s progress notes from August 2005 through
April 2009. (Tr. 15). He found few progress notes, with these minimal notes showing
various prescribed medications and Plaintiff often being stable despite some anxiety.
(Tr. 15). Recognizing the limited relevant time period, the ALJ nonetheless also
considered Dr. Lopez’s subsequent progress notes in late 2019 and 2020, and in early
2021, but noted that these progress notes were less probative of the issue of disability
during the period at issue. (Tr. 16). The ALJ then made the following persuasiveness
finding:
The undersigned finds unpersuasive the opinion of the
claimant’s psychiatrist, Dr. Lopez, who opined in January and
February 2021 letters that the claimant’s bipolar disorder and
generalized anxiety disorder are severe, and from July 2005 to
July 2009, his condition “remained unstable with frequent
periods of decompensation and impairment in all levels of
functioning,” and he could be expected to be absent from work
3-4 times a week (Ex. 9F). This opinion is inconsistent with
and unsupported by the minimal treatment records noting
mostly stable condition and medication refills during the
period at issue (Ex. 2F), and which did not document positive
exams suggestive of frequent decompensation, nor are there
any records of psychiatric hospitalizations during that time.
Furthermore, this opinion is unpersuasive because it was issued
in early 2021, long after the claimant attained age 22. However,
his statement that the claimant’s prescribed medication
regimen produces significant side effects affecting his
cognitive abilities of focus, concentration, and processing
speed (Ex. 9F/2) has been considered and accounted for in the
residual functional capacity, since the claimant was on many
of the same prescribed medications throughout his treatment
relationship with Dr. Lopez.
(Tr. 16-17).
The ALJ specifically found three of Dr. Lopez’s statements unpersuasive: (1)
Plaintiff’s bipolar and generalized anxiety disorder were severe during the relevant
period; (2) Plaintiff’s condition “remained unstable with frequent periods of
decompensation and impairment in all levels of functioning” during the relevant
period; and (3) Plaintiff would be absent from work 3-4 days a week. (Tr 16). The
ALJ found these opinions unpersuasive for two reasons: (1) they were inconsistent
with and unsupported by the minimal treatment records, which mostly showed a
stable condition and medication refills, and did not document positive exams
suggestive of frequent decompensation, or psychiatric hospitalizations during the
relevant time; and (2) they were issued in early 2021, long after Plaintiff attained the
age of 22. (Tr. 16-17).
While true that Dr. Lopez’s records from the relevant time period were not
lengthy, Plaintiff generally saw Dr. Lopez every three to four months. (Tr. 285-99).
In August 2005, Dr. Lopez noted Plaintiff’s anxiety increased and he had fear of
school. (Tr. 295). Dr. Lopez adjusted his medications to try to address these issues.
(Tr. 295). As explained in Dr. Lopez’s March 2011 letter, which the ALJ did not
mention, in May 2006, Dr. Lopez again adjusted Plaintiff’s medication to respond
to increasing episodes of aggression and temper outbursts. (Tr. 207, 293). During
2006 and 2007, Dr. Lopez reported anger and mood outbursts and adjusted
Plaintiff’s medications to attempt to address these behaviors. (Tr. 291-93). In June
2008, Dr. Lopez reported that Plaintiff once again decompensated, which was related
to not being successful in attending school in Orlando and having to return home.
(Tr. 207, 289).
While Dr. Lopez’s treatment notes reflect some stable mental health
examinations, he also found periods of anxiety and mood outbursts with
decompensation and repeatedly adjusted Plaintiff’s medications during the relevant
period to attempt to address these impairments. These records support Dr. Lopez’s
severity finding for Plaintiff’s bipolar disorder and generalized anxiety disorder.
These records also support Dr. Lopez’s finding that during the relevant period,
Plaintiff suffered from instability, periods of decompensation, periodic anxiety, and
mood disturbances, which all support his statement that Plaintiff would be absent
from work 3-4 days a week. Substantial evidence does not support the ALJ’s finding
on the supportability and consistency of Dr. Lopez’s opinion.
Next, the ALJ discounted Dr. Lopez’s opinion because they were issued in
early January and February 2021, long after Plaintiff attained the age of 22. But Dr.
Lopez stated in the first paragraphs of both statements that he treated Plaintiff since
2000 and closely managed his mental health care since then. (Tr. 413, 415). In the
February 2021 letter, Dr. Lopez specifically referenced the relevant time period. (Tr.
413). Of note, the ALJ did not mention the March 10, 2011 letter, drafted less than
two years after the end of the relevant period. In that letter, Dr. Lopez refers to
treatment dates during the relevant period when Plaintiff’s had increasing episodes
of aggression and temper outbursts, and episodes of decompensation. (Tr. 207).
While this letter was also drafted after the relevant period, it clearly relates to the
time at issue as do the later opinion letters.
While the Court recognizes it may not determine the facts anew, reweigh the
evidence, or substitute its judgment for that of the Commissioner, in this case, the
ALJ did not properly consider Dr. Lopez’s opinions. See Mitchell v. Comm’r, Soc.
Sec. Admin., 771 F.3d 780, 782 (11th Cir. 2014) Substantial evidence does not
support the ALJ’s finding that Dr. Lopez’s opinions were unpersuasive simply
because Plaintiff was “stable” at times during the relevant period or because they
were written after the relevant time period. For these reasons, remand is warranted
on this issue.
C. Remaining Issues
Plaintiff also raises issues regarding limitations in the RFC related to
Plaintiff’s mental impairments, consideration of Plaintiff’s parents’ statements, and
consideration of Plaintiff’s subjective complaints. Because the action is remanded to
the Commissioner to reconsider Dr. Lopez’s opinions, this reconsideration would
affect the RFC determination and consideration of all evidence of record.
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. Lopez’s opinions,
Plaintiff's RFC, Plaintiff's parents’ statements, Plaintiff's statements, and whether
the prior 2011 claim file should be associated and considered here. 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 9, 2023.
UNITED STATES MAGISTRATE JUDGE
Copies furnished to:
Counsel of Record
Unrepresented Parties