Johnson v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

CLARISSA JOHNSON,

Plaintiff,

v. Case No: 8:23-cv-549-JSS

COMMISSIONER OF SOCIAL

SECURITY,

Defendant.

___________________________________/

ORDER

Plaintiff Clarissa Johnson seeks judicial review of the denial of her claim for

supplemental security income. As the Administrative Law Judge’s (ALJ) decision was

not based on substantial evidence and did not employ proper legal standards, the

decision is reversed.

BACKGROUND

A. Procedural Background

Plaintiff filed an application for supplemental security income on December 3,

2020. (Tr. 206–12.) The Commissioner denied Plaintiff’s claim both initially and

upon reconsideration. (Tr. 74–89, 93–100.) Plaintiff then requested an administrative

hearing. (Tr. 117.) Upon Plaintiff’s request, the ALJ held a hearing at which Plaintiff

appeared and testified. (Tr. 43–68.) Following the hearing, the ALJ issued an

unfavorable decision finding Plaintiff not disabled and accordingly denied Plaintiff’s

claim for benefits. (Tr. 8–26.) Subsequently, Plaintiff requested review from the

Appeals Council, which the Appeals Council denied. (Tr. 1–7.) Plaintiff then timely

filed a complaint with this Court. (Dkt. 7.) The case is now ripe for review under 42

U.S.C. § 405(g) and 42 U.S.C. § 1383(c)(3). Before the court are Plaintiff’s brief in

opposition to the Commissioner’s decision (Dkt. 17), Defendant’s brief in support of

the Commissioner’s decision (Dkt. 18), and Plaintiff’s reply brief (Dkt. 19).

B. Factual Background and the ALJ’s Decision

Plaintiff, who was born in 1988, claimed disability beginning on November 1,

2020. (Tr. 74, 93.) Plaintiff has earned her General Educational Diploma (GED) and

has past relevant work experience as a fast food worker, waitress, and dancer. (Tr. 46,

63.) Plaintiff alleged disability due to an irregular heartbeat, neuropathy, nerve

damage, hypertension, post-traumatic stress disorder (PTSD), bipolar disorder,

anxiety, and depression. (Tr. 75, 93.)

In rendering the decision, the ALJ concluded that Plaintiff had not performed

substantial gainful activity since December 3, 2020, the application date. (Tr. 13.)

After conducting a hearing and reviewing the evidence of record, the ALJ determined

that Plaintiff had the following severe impairments: spine disorders, depression,

anxiety, bipolar disorder, and PTSD. (Tr. 13.) Notwithstanding the noted

impairments, the ALJ determined that Plaintiff did not have an impairment or

combination of impairments that met or medically equaled one of the listed

impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 13–16.) The ALJ

then concluded that Plaintiff retained a residual functional capacity (RFC) to perform

light work as defined in 20 C.F.R. § 416.967(b), except that she can:

lift and/or carry 20 pounds occasionally and up to 10 pound frequently;

sit for 6 hours; stand and/or walk for 6 hours; climb ramps and stairs

occasionally; never climb ladders, ropes, or scaffolds; stoop, kneel,

crouch, and crawl occasionally; never work at unprotected heights or

with moving mechanical parts; must avoid concentrated exposure to

extreme cold and working in or around vibration; must avoid hazards in

the workplace such as heights and heavy moving machinery; able to

perform simple, routine, and repetitive tasks; make simple work-related

decisions; frequently interact with supervisors; occasionally interact with

co-workers in that the claimant is able to work in the same work area as

co-workers, but unable to perform any job tasks that would require

interaction with co-workers; unable to work in tandem with co-workers;

no interaction with the general public; and able to tolerate gradual

changes in the work setting.

(Tr. 16.) In formulating Plaintiff’s RFC, the ALJ considered Plaintiff’s subjective

complaints and determined that, although the evidence established the presence of

underlying impairments that reasonably could be expected to produce the symptoms

alleged, Plaintiff’s statements as to the intensity, persistence, and limiting effects of her

symptoms were not entirely consistent with the medical evidence and other evidence

in the record. (Tr. 17.)

Considering Plaintiff's noted impairments and the assessment of a vocational

expert (VE), however, the ALJ determined that Plaintiff could not perform her past

relevant work. (Tr. 20.) Given Plaintiff’s background and RFC, the VE testified that

Plaintiff could perform other jobs existing in significant numbers in the national

economy, such as electronics worker, plastics assembler, and injection molding tender.

(Tr. 20–21.) Accordingly, based on Plaintiff’s age, education, work experience, RFC,

and the testimony of the VE, the ALJ found Plaintiff not disabled. (Tr. 21–22.)

APPLICABLE STANDARDS

To be entitled to benefits, a claimant must be disabled, meaning that the

claimant must be unable to engage in any substantial gainful activity by reason of any

medically determinable physical or mental impairment that can be expected to result

in death or that has lasted or can be expected to last for a continuous period of not less

than twelve months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A “physical or mental

impairment” is an impairment that results from anatomical, physiological, or

psychological abnormalities that are demonstrable by medically acceptable clinical

and laboratory diagnostic techniques. 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D).

The Social Security Administration, in order to regularize the adjudicative

process, promulgated the detailed regulations currently in effect. These regulations

establish a “sequential evaluation process” to determine whether a claimant is

disabled. 20 C.F.R. § 416.920. If an individual is found disabled at any point in the

sequential review, further inquiry is unnecessary. 20 C.F.R. § 416.920(a). Under this

process, the ALJ must determine, in sequence, the following: (1) whether the claimant

is currently engaged in substantial gainful activity; (2) whether the claimant has a

severe impairment, i.e., one that significantly limits the ability to perform work-related

functions; (3) whether the severe impairment meets or equals the medical criteria of

20 C.F.R. Part 404, Subpart P, Appendix 1; and, (4) whether the claimant can perform

his or her past relevant work. If the claimant cannot perform the tasks required of his

or her prior work, step five of the evaluation requires the ALJ to decide if the claimant

can do other work in the national economy in view of the claimant’s age, education,

and work experience. 20 C.F.R. § 416.920(a). A claimant is entitled to benefits only

if unable to perform other work. Bowen v. Yuckert, 482 U.S. 137, 140–42 (1987); 20

C.F.R. § 416.920(g).

A determination by the Commissioner that a claimant is not disabled must be

upheld if it is supported by substantial evidence and comports with applicable legal

standards. See 42 U.S.C. § 405(g). Substantial evidence is “such relevant evidence as

a reasonable mind might accept as adequate to support a conclusion.” Richardson v.

Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. N.L.R.B., 305 U.S. 197,

229 (1938)); Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996). While the court

reviews the Commissioner’s decision with deference to the factual findings, no such

deference is given to the legal conclusions. Keeton v. Dep’t of Health & Hum. Servs., 21

F.3d 1064, 1066 (11th Cir. 1994).

In reviewing the Commissioner’s decision, the court may not decide the facts

anew, re-weigh the evidence, or substitute its own judgment for that of the ALJ, even

if it finds that the evidence preponderates against the ALJ’s decision. Bloodsworth v.

Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). The Commissioner’s failure to apply

the correct law, or to give the reviewing court sufficient reasoning for determining that

he or she has conducted the proper legal analysis, mandates reversal. Keeton, 21 F.3d

at 1066. The scope of review is thus limited to determining whether the findings of

the Commissioner are supported by substantial evidence and whether the correct legal

standards were applied. 42 U.S.C. § 405(g); Wilson v. Barnhart, 284 F.3d 1219, 1221

(11th Cir. 2002).

ANALYSIS

Plaintiff challenges the ALJ’s decision on the following grounds: (1) the ALJ

failed to adequately consider the medical opinion of Advanced Registered Nurse

Practitioner (ARNP) Jacquelyn Delgado; (2) the ALJ failed to adequately consider the

combination of Plaintiff’s impairments, including symptoms from her traumatic brain

injury; and (3) the ALJ failed to adequately develop the record with respect to

Plaintiff’s impairments. (Dkt. 17.) For the following reasons, Plaintiff’s second and

third contentions warrant remand.

A. Consideration of Medical Opinion Evidence

Plaintiff argues that the ALJ erred in finding that ARNP Delgado’s medical

opinion evidence was “only somewhat persuasive.” (Dkt. 17 at 13–17.) Specifically,

Plaintiff argues that the ALJ relied only on mental status examinations to discount

ARNP Delgado’s opinion and should have afforded the opinion controlling weight.

(Id.) Defendant responds that the ALJ complied with the applicable regulations and

acted reasonably and within her discretion in finding ARNP Delgado’s opinions

somewhat persuasive because the opinions were rendered on a check-box form that

was vague and ARNP Delgado provided no support for her opinions. (Dkt. 18 at 7–

10.) Upon consideration, the court finds that the ALJ properly considered ARNP

Delgado’s opinions under the applicable regulations.

Prior to March 17, 2017, an ALJ was required to assign greater weight to the

opinions of treating physicians. This rule, referred to as the “treating physician rule”

required the ALJ to assign controlling weight to the opinion of a treating physician if

the opinion was well-supported and not inconsistent with the other evidence in the

record. If an ALJ assigned less than controlling weight to a treating physician, the

ALJ was required to provide good cause for doing so. See Winchel v. Comm’r of Soc.

Sec., 631 F.3d 1176, 1178–79 (11th Cir. 2011).

However, the new SSA regulations, published on January 18, 2017, and

effective on March 27, 2017, apply to this case and eliminate the treating physician

rule. 20 C.F.R. § 416.920c; Harner v. Soc. Sec. Admin., Comm’r, 38 F.4th 892, 898 (11th

Cir. 2022) (affirming that new regulations eliminated treating physician rule and apply

to applications filed after effective date). Plaintiff filed her application for benefits on

December 3, 2020 (Tr. 206–12), and the revised regulations therefore apply to her

claim. See 20 C.F.R. § 416.920c; Harner, 38 F.4th at 898.

When considering medical opinion evidence submitted by a medical source

under the revised regulations, an ALJ must “articulate . . . how persuasive [it] find[s]

all of the medical opinions . . . in [the] case record,” consistent with the standards in

20 C.F.R. § 416.920c. 20 C.F.R. § 416.920c(a)–(b). The ALJ need not “defer or give

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

opinion(s) or prior administrative medical finding(s),” including those from a

claimant’s medical sources. Id.; see also Walker v. Soc. Sec. Admin., Comm’r, No. 21-

12732, 2022 WL 1022730, at *2 (11th Cir. Apr. 5, 2022) (“Under the new regulatory

scheme, the ALJ must articulate how persuasive he finds each medical opinion, but

he no longer must assign more weight to a treating source’s medical opinion or explain

why good cause exists to disregard it.”). Instead, the regulations provide “several

factors for determining what weight to give a claimant’s proffered medical opinions.”

Harner, 38 F.4th at 897 (citing 20 C.F.R. § 404.1520c(c)(1)–(5)). While there are

several factors the ALJ must consider, “[t]he most important factors” are

supportability and consistency. 20 C.F.R. § 416.920c(b)(2). “Supportability” refers to

the principle that “[t]he 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 finding(s), the more persuasive the medical opinions or prior

administrative medical finding(s) will be.” 20 C.F.R. § 416.920c(c)(1). “Consistency”

refers to the principle that “[t]he 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. § 416.920c(c)(2). Under the

revised regulations, the ALJ must therefore explain how it “considered the

supportability and consistency factors for a medical source’s medical opinions or prior

administrative medical findings,” but need not discuss any of the other factors. 20

C.F.R. § 416.920c(b)(2); see Ohneck v. Comm’r, Soc. Sec. Admin., No. 22-13984, 2023

WL 8946613, at *3 (11th Cir. Dec. 28, 2023) (“The ALJ must explain how he analyzed

the supportability and consistency of a medical source’s opinion but is not required to

explain the other factors in paragraph (c).”). “The articulation requirement is met so

long as the evaluation addresses the substance of the factors, regardless of the specific

language used in the evaluation.” Rivera v. Kijakazi, No. 6:21-cv-93-AAS, 2022 WL

2965883, at *4 (M.D. Fla. July 27, 2022) (citing Cook v. Comm’ r of Soc. Sec., No. 6:20-

cv-1197-RBD-DCI, 2021 WL 1565832, at *5 (M.D. Fla. Apr. 6, 2021), report and

recommendation adopted, 2021 WL 1565162 (M.D. Fla. Apr. 21, 2021)).

According to the record, Plaintiff began treatment with ARNP Delgado in April

2020 and underwent a psychiatric evaluation at that time. (Tr. 648–55.) Plaintiff

continued treatment with ARNP Delgado in November 2020, May 2021, August

2021, and April 2022. (Tr. 648–50, 657–62, 862–64, 868–70, 879–81, 913–15, 919–

21.) On August 4, 2021, ARNP Delgado completed a Mental Residual Functional

Capacity Assessment of Plaintiff. (Tr. 826–27.) In the assessment, ARNP Delgado

noted that Plaintiff had “moderate” or “severe” limitations in 18 of 21 areas of mental

functioning and that there were several work-related stressors that would further

increase her level of impairment. (Tr. 826–27.) The assessment defined “moderate”

as being “somewhat impaired” and “severe” as being “not totally precluded but []

substantially impaired in terms of speed or accuracy of carrying out the task and can

only be engaged in occasionally or seldom during an eight[-]hour day[.]” (Tr. 826.)

In determining Plaintiff’s RFC, the ALJ considered ARNP Delgado’s

assessment and found it to be “only somewhat persuasive.” (Tr. 19.) Specifically, the

ALJ stated:

Jacquelyn Delgado, PMHNP completed a medical source statement in

August 2021 and opined that the claimant has severe impairments in

understand and memory, moderate to severe impairments in sustained

concentration and persistence, moderate limitations with social

interaction, moderate impairments in adaptation, and severe limitations

with the ability to respond appropriately to unexpected changes in the

work setting and routine (B6F). The undersigned finds this assessment

to be only somewhat persuasive as it is more restrictive than what is

consistent with the evidence of record. The evidence of record supports

the above residual functional capacity as mental status examinations

consistently noted that the claimant had euthymic mood, intact

concentration, and intact recent and remote memory.

(Tr. 19.)

Upon consideration, the court finds that the ALJ’s analysis of ARNP Delgado’s

opinions is sufficient to demonstrate compliance with the applicable regulations and

is supported by substantial evidence.1 Initially, Plaintiff does not argue that the ALJ

failed to address the “consistency” and “supportability” factors and instead argues that

the ALJ erred in relying solely on mental status examination findings to find ARNP

Delgado’s opinions partially persuasive. (Dkt. 17 at 13–17.) In support, Plaintiff relies

1 In making this finding, the court has not considered the Commissioner’s arguments that ARNP

Delgado’s opinions are vague and should be discounted because they were issued on a “check-box

form” with “no supporting explanation.” See (Dkt. 18 at 7–8.) The court cannot rely on the post-hoc

rationalizations offered by the Commissioner on appeal. See Watkins v. Comm’r of Soc. Sec., 457 F.

App’x 868, 872 (11th Cir. 2012) (“[The Court] cannot affirm based on a post hoc rationale that ‘might

have supported the ALJ’s conclusion.’”) (quoting Owens v. Heckler, 748 F.2d 1511, 1516 (11th Cir.

1984)).

on Simon v. Comm’r, Soc. Sec. Admin., 7 F.4th 1094 (11th Cir. 2021) to argue that

“findings on mental status examinations do not equate to an inability to function in a

full-time job.” (Dkt. 17 at 15–16.) However, as the Eleventh Circuit has recognized,

in Simon, the “Court applied 20 C.F.R. § 404.1527(c)(2)’s treating physician rule

because the claimant’s application was filed in March 2015.” Glover v. Comm’r, Soc.

Sec. Admin., No. 22-10497, 2022 WL 17826364, at *3 n.2 (11th Cir. Dec. 21, 2022).

The SSA’s revised regulations, as applicable to Plaintiff’s claim, “eliminated the

treating physician rule” and an ALJ must not give controlling weight to a treating

physician’s opinions and need not provide good cause for declining to do so. Harner,

38 F.4th at 897 (citing 20 C.F.R. § 404.1520c(a)).

Here, although the ALJ’s decision does not specifically reference the

“supportability” factor, the decision makes clear that the ALJ considered both the

supportability and consistency of ARNP Delgado’s opinions. See Cook, 2021 WL

1565832, at *5 (“While he may not have used the words ‘supportability’ and

‘consistency,’ the ALJ’s discussion of Dr. Birkmire’s opinions and findings regarding

the record was based on those factors.”). Specifically, in finding ARNP Delgado’s

opinion “only somewhat persuasive” the ALJ found the assessed limitations to be

inconsistent with mental status examinations found throughout the record, including

those conducted by ARNP Delgado. (Tr. 19); see Brodeur v. Comm’r of Soc. Sec., No.

5:22-cv-384-PRL, 2023 WL 5125198, at *4 (M.D. Fla. Aug. 10, 2023) (“An ALJ may

refer to evidence discussed elsewhere in the decision when evaluating medical

opinions or prior administrative medical findings[.]”) (quoting Thaxton v. Kijakazi, No.

1:20-cv-00616-SRW, 2022 WL 983156, at *8 (M.D. Ala. Mar. 30, 2022)).

In determining Plaintiff’s RFC, the ALJ discussed Plaintiff’s mental health

records in detail, including those records from ARNP Delgado and other providers.

(Tr. 18–19.) The ALJ explicitly considered ARNP Delgado’s psychiatric evaluation

of Plaintiff in November 2020 and found that “[m]ental status examination revealed

that [Plaintiff] has intact recent and remote memory, exhibit[ed] appropriate behavior,

had intact concentration, [] euthymic mood . . . her thought processes were organized

and thought content was logical.” (Tr. 18 (citing Tr. 657, 662).) The ALJ further

discussed Plaintiff’s treatment with ARNP Delgado in May 2021, in which her mental

status “was also within normal limits except for limited insight and anxious mood”

and Plaintiff’s “behavior was appropriate, concentration was intact, [recent] and

remote memory were intact, and she had organized thought processes.” (Tr. 18 (citing

Tr. 870).) The ALJ also considered Plaintiff’s mental condition as assessed by other

providers, including a follow-up appointment with her primary care in February 2021

where she was noted to have no neurological defects (Tr. 861), and findings during a

consultative examination in December 2021 in which Plaintiff’s “cognition was

normal, and she had normal mood and affect with no anxiety.” (Tr. 895.)

Thus, the ALJ’s decision demonstrated application of the appropriate legal

framework and substantial evidence supported the decision to find the severe

impairments noted by ARNP Delgado to be only somewhat persuasive. See, e.g.,

Hickman v. Comm’r of Soc. Sec., No. 6:22-cv-2267-PGB-LHP, 2023 WL 9197938, at *8

(M.D. Fla. Dec. 18, 2023) (“Despite Claimant’s assertion that the ALJ’s ‘explanations

are not accurate or logical,’ what Claimant really asks is for the Court to reweigh the

evidence, which is not within the province of this Court.”), report and recommendation

adopted, 2024 WL 128018 (M.D. Fla. Jan. 11, 2024); St. Jacques v. Comm’r of Soc. Sec.,

No. 3:22-cv-98-MAP, 2023 WL 2583294, at *7 (M.D. Fla. Mar. 21, 2023) (“[T]he ALJ

demonstrated that she fully considered the treatment history from Dr. Martin and Dr.

Mantineo, which goes to the supportability factor, along with the other evidence of

record, which goes to the consistency factor, in setting forth Plaintiff's RFC.”). To the

extent Plaintiff identifies other evidence in the record that she contends bolsters ARNP

Delgado’s opinion, the court cannot reweigh the evidence or substitute its judgment

for that of the ALJ. Bloodsworth, 703 F.2d at 1239 (“We may not decide the facts anew,

reweigh the evidence, or substitute our judgment for that of the [Commissioner].”);

Miles, 84 F.3d at 1400 (“If the Commissioner’s decision is supported by substantial

evidence we must affirm, even if the proof preponderates against it.”).

B. Consideration of All Impairments

Plaintiff argues that the ALJ erred by failing to consider the combination of her

impairments in the latter steps of the sequential evaluation process. (Dkt. 17 at 17–

19.) Specifically, Plaintiff argues that the ALJ failed to adequately consider her

traumatic brain injury and related symptoms, including facial pain and headaches, in

formulating her RFC. (Id.; Dkt. 19 at 2–3.) Defendant responds that any error in

finding Plaintiff’s traumatic brain injury to be non-severe at step two was harmless and

that substantial evidence supported the ALJ’s findings at steps two and five. (Dkt. 18

at 10–13.) Upon consideration, the court agrees with Plaintiff and finds that remand

is warranted on this basis.

At step two of the sequential evaluation process, the ALJ considers the medical

severity of a claimant’s impairments. 20 C.F.R. § 416.920(a)(4)(ii). The ALJ must

determine whether the impairments, alone or in combination, significantly limit the

claimant’s physical or mental ability to do basic work skills. Phillips, 357 F.3d at 1237

(citing 20 C.F.R. § 404.1520(c)). If an ALJ errs in finding that an impairment is non-

severe at step two, such error is harmless if the ALJ finds that the claimant has any

severe impairment and continues in the sequential evaluation process. See Heatly v.

Comm’r Soc. Sec., 382 F. App’x 823, 824–25 (11th Cir. 2010); Tuggerson-Brown v.

Comm’r Soc. Sec., 572 F. App’x 949, 951 (11th Cir. 2014) (“Accordingly, even assuming

that [claimant] is correct that her additional impairments were ‘severe,’ the ALJ’s

recognition of that as a fact would not, in any way, have changed the step-two analysis,

and she cannot demonstrate error below.”).

Following step two, the ALJ must “consider all impairments, regardless of

severity, in conjunction with one another in performing the latter steps of the

sequential evaluation.” Tuggerson-Brown, 572 F. App’x at 951; see Schink v. Comm’r of

Soc. Sec., 935 F.3d 1245, 1268–69 (“Consideration of all impairments, severe and non-

severe, is required when assessing a claimant’s RFC.”). The ALJ’s failure to consider

the combination of a claimant’s impairments requires reversal. Hudson v. Heckler, 755

F.2d 781, 785 (11th Cir. 1985); see 20 C.F.R. § 416.945 (“We will consider all of your

medically determinable impairments of which we are aware, including your medically

determinable impairments that are not ‘severe,’ . . . when we assess your residual

functional capacity.”). The ALJ is not required to refer to every piece of evidence, so

long as the ALJ provides sufficient reasoning for the reviewing court to evaluate

whether the ALJ considered the claimant’s medical condition as a whole. Buckwalter

v. Acting Comm’r of Soc. Sec., 5 F.4th 1315, 1326 (11th Cir. 2021); see also Pupo v. Comm’r,

Soc. Sec. Admin., 17 F. 4th 1054, 1064 (11th Cir. 2021) (citing Social Security

Regulation (SSR) 96-8p, 61 Fed. Reg. 34474, 34477 (July 2, 1996)). “If an ALJ fails

to address the degree of impairment caused by the combination of physical and mental

medical problems, the decision that the claimant is not disabled cannot be upheld.”

Schink, 935 F.3d at 1269 (citing Bowen v. Heckler, 748 F.2d 629, 634 (11th Cir. 1984)).

Upon review, the court finds that the ALJ’s decision does not sufficiently

demonstrate consideration of the combination of Plaintiff’s impairments in

formulating her RFC. At step two, the ALJ found that Plaintiff had severe

impairments of spine disorders, depression, anxiety, bipolar disorder, and PTSD. (Tr.

13.) The ALJ did not discuss Plaintiff’s traumatic brain injury, nor did the ALJ

identify any non-severe, medically determinable impairments at step two. (Tr. 13.)

The ALJ then found that Plaintiff did not have an impairment or combination of

impairments that meets or medically equals the severity of a listed impairment. (Tr.

13–16.) In so finding, the ALJ utilized the Psychiatric Review Technique (PRT) and

assessed Plaintiff’s mental impairments “singly and in combination” in the four broad

areas of mental functioning or “paragraph B” criteria.” (Tr. 13–16.) However, the

ALJ acknowledged that “[t]he limitations identified in the ‘paragraph B’ criteria are

not a residual functional capacity assessment but are used to rate the severity of mental

impairments at steps 2 and 3 of the sequential evaluation process.” (Tr. 16.) The ALJ

continued that the “mental residual functional capacity assessment used at steps 4 and

5 of the sequential evaluation process requires a more detailed assessment of the areas

of mental functioning.” (Tr. 16.)

Nevertheless, despite stating that she “considered all symptoms” in formulating

Plaintiff’s RFC, the ALJ’s decision does not sufficiently demonstrate consideration of

Plaintiff’s traumatic brain injury and associated pain and headaches. See Pupo, 17

F.4th at 1064 (“[A]lthough the ALJ stated he ‘considered all symptoms,’ his decision

demonstrates that he did not.”). The Commissioner acknowledges that the medical

records reflect a diagnosis of “personal history of traumatic brain injury” resulting

from Plaintiff’s 2010 domestic violence injury and surgery. (Dkt. 18 at 11.) Indeed,

as Plaintiff notes, the record contains several references to her traumatic brain injury,

and Plaintiff complained of “severe headaches” and symptoms from her traumatic

brain injury during the hearing. See (Tr. 51, 54–55); e.g., (Tr. 654, 658, 661, 669, 914,

938.) However, the ALJ’s only mention of Plaintiff’s traumatic brain injury in

formulating her RFC is in discussing Plaintiff’s testimony at the hearing. (Tr. 17).

Specifically, the ALJ stated that Plaintiff “indicated that she suffered a traumatic brain

injury and has difficulties being in large crowds” and that “she was involved in a

domestic violence encounter that result[ed] in reconstructive surgery on her face” and

as a result “she experiences nightmares and difficulties with memory.” (Tr. 17.) The

ALJ’s decision does not address Plaintiff’s complaints of “severe headaches” at all,

nor does the ALJ reference Plaintiff’s traumatic brain injury or related symptoms in

discussing the impacts of Plaintiff’s physical or mental impairments in her residual

functional capacity. (Tr. 16–20.) The court therefore finds that the ALJ has failed to

provide sufficient reasoning to demonstrate that she considered the combination of

Plaintiff’s impairments in formulating her RFC or that the ALJ considered Plaintiff’s

medical condition as a whole. See 20 C.F.R. § 416.945(a)(2); Gibson v. Heckler, 779

F.2d 619, 623 (11th Cir. 1986) (“The ALJ must address the degree of impairment

caused by the ‘combination of physical and mental medical problems.’”); see, e.g.,

Roberson v. Kijakazi, No. 8:20-cv-167-CPT, 2021 WL 9036513, at *5 (M.D. Fla. Sept.

30, 2021) (“Other than alluding to a brain MRI showing ‘only ‘mild atrophy’’ and

scattered references to ‘normal neurological signs/findings’ by the Plaintiff’s

neurologists, the ALJ’s RFC evaluation omits any examination of the extent to which

the Plaintiff’s medically determinable impairments of depression, anxiety, and

‘decreased cognitive abilities’ altered her vocational capacity.”); Rivas v. Saul, No.

8:20-CV-282-JSM-TGW, 2021 WL 2143651, at *4 (M.D. Fla. May 7, 2021) (“[T]he

law judge was required to evaluate the diagnoses of TBI and residual headaches,

determine whether the conditions are medically determinable impairments and, if so,

the severity of those impairments. He certainly did not do that.”), report and

recommendation adopted, 2021 WL 2138884 (M.D. Fla. May 26, 2021).

Defendant argues that any error by the ALJ in finding that Plaintiff’s traumatic

brain injury was not severe at step two was harmless. (Dkt. 18 at 10–13.) However,

regardless of whether her traumatic brain injury was a severe impairment

“[c]onsideration of all impairments, severe and non-severe, is required when assessing

a claimant’s RFC.” Schink, 935 F.3d at 1269 (citing Bowen, 748 F.2d at 634–35).

Defendant further contends that the state agency medical consultants considered

Plaintiff’s traumatic brain injury at the initial and reconsideration levels and found

there to be “no evidence of significant intellectual deficits.” (Dkt. 18 at 11 (citing (Tr.

79, 95, 97).) However, the court “cannot affirm based on a post hoc rationale that

might have supported the ALJ’s conclusion.” Watkins, 457 F. App’x at 872 (internal

quotations omitted). The ALJ did not address the state agency consultants findings

with respect to Plaintiff’s traumatic brain injury in formulating Plaintiff’s RFC, and

the court will not substitute its judgment for that of the ALJ. See Schink, 935 F.3d at

1269 (“Even the most favorable interpretation of the ALJ’s opinion—namely, that the

ALJ considered Schink’s mental conditions in the RFC assessment sub silentio and

implicitly found that they imposed no significant limitations on his work-related

mental capacities—would not permit us to affirm because, as our precedent holds, the

ALJ’s ‘failure . . . to provide the reviewing court with sufficient reasoning for

determining that the proper legal analysis has been conducted mandates reversal’ in

its own right.”) (quoting Keeton, 21 F.3d at 1066); see also Rivas, 2021 WL 2143651, at

*3 (“[I]f the law judge discounted that evidence, he needed to give an explanation for

his determination.”) (citing Luckey v. Astrue, 331 F. App’x 634, 639 (11th Cir. 2009)).

Accordingly, the court finds that remand is warranted for further consideration

of Plaintiff’s RFC in light of all of Plaintiff’s medically determinable impairments.

C. Duty to Develop Record

Plaintiff argues that the ALJ failed to fulfill her duty to fully and fairly develop

the record. (Dkt. 17 at 19–20.) Specifically, Plaintiff argues that after requesting

records from the Lakeland Regional Medical Center from January 1, 2010 to the

present, the ALJ failed to follow-up with Lakeland Regional after only records from

2022 were provided. (Id.) Defendant responds that Plaintiff has made no showing of

prejudice for the period at issue and the evidence of record was sufficient for the ALJ

to make an informed decision. (Dkt. 18 at 13–14.) Upon consideration, the court

agrees with Plaintiff and finds that the ALJ should request further records on remand.

“It is well-established that the ALJ has a basic duty to develop a full and fair

record.” Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003). The ALJ is required

to develop a complete medical history for at least the 12 months preceding the

claimant’s application for disability unless “there is a reason to believe that

development of an earlier period is necessary.” 20 C.F.R. § 416.912(b)(1). However,

the claimant bears the burden of proving that she is disabled, and she is responsible for

producing evidence to support her claim. See Ellison, 355 F.3d at 1276. The ALJ need

not seek additional evidence “as long as the record contains sufficient evidence

. . . to make an informed decision.” Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d

1253, 1269 (11th Cir. 2007); see also Tomblin v. Berryhill, No. 3:17-cv-635-GMB, 2018

WL 5114143, at *5 (M.D. Ala. Oct. 18, 2018) (holding that an ALJ is “not required

to order additional tests [if] the record contain[s] sufficient evidence for an informed

decision” and the claimant relies on speculation rather than on a “show[ing] [of] clear

prejudice or unfairness”) (citations omitted). In evaluating the necessity for remand

on this basis, courts look to see “whether the record reveals evidentiary gaps which

result in unfairness or ‘clear prejudice.’” Brown v. Shalala, 44 F.3d 931, 935 (11th Cir.

1995).

Here, at Plaintiff’s request (Tr. 316), the SSA requested records from Lakeland

Regional Medical Center on July 18, 2022 “covering the period of: 01/01/2010 to

Present.” (Tr. 1058.) However, the records received from Lakeland Regional appear

to be from 2022 exclusively. See (Tr. 1063–126.) Under the applicable regulations, if

the requested records are not received after the SSA’s initial request, the SSA “will

make one follow-up request to obtain the medical evidence necessary to make a

determination.” 20 C.F.R. § 416.912(b)(1). Despite not receiving the requested

records, it appears that no follow-up request was made nor is there evidence to suggest

that the ALJ requested those records from Plaintiff. Cf. Ellison, 355 F.3d at 1276

(“[T]he record reveals that the ALJ did attempt to develop the medical record by

requesting on two occasions that Ellison furnish him with the 1999 and 2000 medical

records, but Ellison failed to do so.”).

As discussed above, Plaintiff testified at the hearing regarding the effects of her

traumatic brain injury and resulting surgery and the record repeatedly reflects that

condition. See (Tr. 51, 54–55); e.g., (Tr. 654, 658, 661, 669, 914, 938.) The court agrees

with Plaintiff that the ALJ appears to have found those records relevant by requesting

medical records dating to 2010. (Tr. 1058.) Defendant argues that sufficient evidence

existed in the record for the ALJ to make an informed decision, including that “[t]wo

state agency medical consultants reviewed the evidence of record in December 2021.”

(Dkt. 18 at 13 (citing Tr. 93–100).) However, with respect to Plaintiff’s traumatic brain

injury, Defendant also argues that the ALJ’s findings were supported by the state

agency medical consultant’s conclusions, including that “there was no imaging or

medical evidence surrounding the traumatic brain injury or current impairment from

that[.]” (Id. at 11.) Thus, without the records initially requested by the ALJ, there

appears to be an evidentiary gap in the record that prejudices Plaintiff. See Henry v.

Comm’r of Soc. Sec., 802 F.3d 1264, 1270 (11th Cir. 2015) (“The underdeveloped record

presents evidentiary gaps that make assessment of Henry’s physical limitations unfair

and clearly prejudicial.”); Cooper v. Acting Comm’r of Soc. Sec. Admin., No. 3:15-cv-864-

J-MCR, 2017 WL 1135088, at *4 (M.D. Fla. Mar. 27, 2017) (“The ALJ’s failure to

sufficiently probe the facts regarding the missing mental health records is prejudicial

in light of the evidentiary gaps presented in the record.”).

Accordingly, and in light of the above finding requiring remand for further

consideration of Plaintiff's RFC, the ALJ should take additional steps on remand to

procure Plaintiff's relevant medical records in accordance with the regulations. See 20

C.F.R. § 416.912.

CONCLUSION

Accordingly, after due consideration and for the foregoing reasons, it is

ORDERED:

1. The decision of the Commissioner is REVERSED and REMANDED

pursuant to sentence four of 42 U.S.C. § 405(g) to the Commissioner for

further proceedings consistent with this order.

2. The Clerk of Court is directed to enter final judgment accordingly, terminate

any pending motions and deadlines, and close the case.

ORDERED in Tampa, Florida, on February 29, 2024.

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JUEIE $. SNEED

UNITED STATES MAGISTRATE JUDGE

Copies furnished to:

Counsel of Record

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