Opinion

Schulman v. Commissioner of Social Security

Court
District Court, M.D. Florida
Filed
Aug 9, 2023
Cited by
0 cases
Authority
More cited than 20.0%

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

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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