BRACKINS v. KIJAKAZI

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UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

TORRI A. BRACKINS,

Plaintiff,

vs. Case No.: 1:20cv22/EMT

ANDREW SAUL,

Commissioner of Social Security,

Defendant.

____________________________/

MEMORANDUM DECISION AND ORDER

This case has been referred to the undersigned magistrate judge for disposition

pursuant to the authority of 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73, based on the

parties’ consent to magistrate judge jurisdiction (see ECF Nos. 4, 8). It is now

before the court pursuant to 42 U.S.C. § 405(g) of the Social Security Act (Act) for

review of a final determination of the Commissioner of the Social Security

Administration (Commissioner) denying Plaintiff’s applications for disability

insurance benefits (DIB) under Title II of the Act, 42 U.S.C. §§ 401–34, and

supplemental security income (SSI) under Title XVI of the Act, 42 U.S.C. §§ 1381–

83.1 Upon review of the record before the court, I find the Administrative Law

1As the Eleventh Circuit recently recognized, “because the Commissioner has delegated his

authority to make the finding at the hearing level to an administrative law judge, the finding is

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Judge (ALJ) erred with respect to the hypothetical questions posed to the vocational

expert and that the ALJ’s decision therefore should be reversed and the matter

remanded for further proceedings consistent with this Memorandum Decision and

Order.

ISSUES ON REVIEW

Plaintiff raises two issues on appeal, arguing the ALJ erred in (1) assigning

no functional mental limitations despite finding mild mental impairments and failing

to incorporate functional mental limitations in a hypothetical question posed to the

vocational expert; and (2) giving little weight to the opinions of treating physician

John Charles Stevenson, M.D. (ECF No. 13 at 1, 33–34).

PROCEDURAL HISTORY

On June 23, 2016, Plaintiff filed applications for DIB and SSI, alleging

disability beginning June 8, 2016 (tr. 223–31).2 The applications were denied

initially and on reconsideration (tr. 77–150, 153–69). Plaintiff appeared for a

effectively reserved to the administrative law judge.” Walker v. Soc. Sec. Admin., Comm’r, No.

19-15039, 2021 WL 503280, at *3 (11th Cir. Feb. 11, 2021).

2 The administrative record, as filed by the Commissioner, consists of thirty-three volumes (ECF

Nos. 10–1 through 10–33) and has 1977 consecutively numbered pages. References to the record

will be by “tr.,” for transcript, followed by the page number. The page numbers refer to those

found on the lower right-hand corner of each page of the transcript, as opposed to those assigned

by the court’s electronic docketing system or any other page numbers that may appear.

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hearing before an ALJ on January 22, 2019 (id. at 37–76). On February 4, 2019,

the ALJ issued a decision finding Plaintiff not disabled under the Act (id. at 12–28).

Plaintiff petitioned the Appeals Council for review of the ALJ’s decision (id. at 1,

219–21). The Appeals Council denied the request (id. at 1–5). The ALJ’s decision

thus became the final determination of the Commissioner. That determination is

now ripe for review in this court.

FINDINGS OF THE ALJ

The ALJ made the following findings in his written decision (see id. at 12–

36):

• Plaintiff meets the insured status requirements of the Act through December

31, 2021 (id. at 17).

• Plaintiff has not engaged in substantial gainful activity since June 8, 2016, the

alleged onset date (id.).

• Plaintiff has the following severe impairments: disorders of the spine and

fracture of the left arm (id.).

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

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

C.F.R. Part 404, Subpart P, Appendix 1 (id. at 20).

Case No.: 1:20cv22/EMT

• Plaintiff has the residual functional capacity (RFC) to perform light work as

defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b), except she can

occasionally lift/carry up to twenty pounds and frequently lift ten pounds;

stand and/or walk and sit for six hours in an eight-hour workday with normal

breaks; frequently push/pull with the left arm; frequently climb ramps/stairs,

ladders, ropes, and scaffolds; frequently stoop; balance, kneel, crouch, crawl,

and reach overhead in all directions without limitation; and frequently handle

on the left and engage in frequent gross manipulation with the left hand. She

needs to avoid concentrated exposure to extreme cold; vibrations; and

hazards, including machinery and heights (id.).

• Plaintiff is unable to perform any past relevant work (id. at 26).

• Plaintiff has acquired skills from past relevant work (id.).

• Considering Plaintiff’s age, education, work experience, and RFC, the skills

Plaintiff has acquired from past relevant work are transferrable to other

occupations with jobs existing in significant numbers in the national economy

(id.).

• Plaintiff has not been under a disability, as defined in the Act, from June 8,

2016, through February 4, 2019, the date of the decision (id. at 27).

STANDARD OF REVIEW

A federal court reviews the “Commissioner’s decision to determine if it is

supported by substantial evidence and based upon proper legal standards.” Lewis

v. Callahan, 125 F.3d 1436, 1439 (11th Cir. 1997); see also Carnes v. Sullivan, 936

F.2d 1215, 1218 (11th Cir. 1991) (“[T]his Court may reverse the decision of the

[Commissioner] only when convinced that it is not supported by substantial evidence

or that proper legal standards were not applied.”). 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. NLRB, 305 U.S. 197, 229 (1938)). “Substantial evidence is

something ‘more than a mere scintilla, but less than a preponderance.’” Dyer v.

Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005) (quoting Hale v. Bowen, 831 F.2d

1007, 1011 (11th Cir. 1987)). Even if the evidence preponderates against the

Commissioner’s decision, the decision must be affirmed if supported by substantial

evidence. Sewell v. Bowen, 792 F.2d 1065, 1067 (11th Cir. 1986).

When reviewing a Social Security disability case, the court “‘may not decide

the facts anew, reweigh the evidence, or substitute [its] judgment for that of the

[Commissioner.]’” Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)

(quoting Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983)); see also

Hunter v. Soc. Sec. Admin., Comm’r, 808 F.3d 818, 822 (11th Cir. 2015) (“In

determining whether substantial evidence supports a decision, we give great

deference to the ALJ’s factfindings.”) (citing Black Diamond Coal Min. Co. v. Dir.,

OWCP, 95 F.3d 1079, 1082 (11th Cir. 1996)). A reviewing court also may not look

“only to those parts of the record which support the ALJ” but, instead, “must view

the entire record and take account of evidence in the record which detracts from the

evidence relied on by the ALJ.” Tieniber v. Heckler, 720 F.2d 1251, 1253 (11th

Cir. 1983). Review is deferential to a point, but the reviewing court conducts what

has been referred to as “an independent review of the record.” Flynn v. Heckler,

768 F.2d 1273 (11th Cir. 1985).3

The Act defines disability as an “inability to engage in any substantial gainful

activity by reason of any medically determinable physical or mental impairment

which can be expected to result in death, or which has lasted or can be expected to

last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A).

To qualify as a disability, the physical or mental impairment must be so severe that

the plaintiff not only is unable to do her previous work “but cannot, considering [her]

age, education, and work experience, engage in any other kind of substantial gainful

work which exists in the national economy[.]” 42 U.S.C. § 423(d)(2)(A). An

3 The Eleventh Circuit not only speaks of an independent review of the administrative record, but

it also reminds us that it conducts a de novo review of the district court’s decision on whether

substantial evidence supports the ALJ’s decision. See Ingram v. Comm’r of Soc. Sec. Admin., 496

F.3d 1253, 1260 (11th Cir. 2007); Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002).

individual claiming Social Security disability benefits must prove she is disabled.

Adams v. Comm’r, Soc. Sec. Admin., 586 F. App’x 531, 533 (11th Cir. 2014). She

also must prove she became disabled prior to the expiration of the date last insured

in order to obtain DIB. See 42 U.S.C. §§ 416(i)(3), 423(a) and (c); 20 C.F.R.

§§ 404.101, 404.130, 404.131; see also Moore v. Barnhart, 405 F.3d 1208, 1211

(11th Cir. 2005).

Pursuant to 20 C.F.R. § 404.1520(a)(4), the Commissioner analyzes a

disability claim in five steps.4 “Throughout the process, the burden is on the

claimant to introduce evidence in support of her application for benefits.” Adams,

586 F. App’x at 533. The five steps are as follows:

1. If the claimant is performing substantial gainful activity, she is not

disabled.

2. If the claimant is not performing substantial gainful activity, her

impairments must be severe before she can be found disabled.

3. If the claimant is not performing substantial gainful activity and she has

severe impairments that have lasted or are expected to last for a continuous period

of at least twelve months, and if her impairments meet or medically equal the criteria

4 In general, the legal standards applied are the same whether a claimant seeks DIB or SSI, but

separate, parallel statutes and regulations exist for DIB and SSI claims (see 20 C.F.R. §§ 404,

416). Therefore, citations in this Memorandum Decision and Order should be considered to

incorporate the appropriate parallel provisions. The same applies to citations of statutes or

regulations found in quoted court decisions.

of any impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, the claimant

is presumed disabled without further inquiry.

4. If the claimant’s impairments do not prevent her from performing past

relevant work, she is not disabled.5

5. Even if the claimant’s impairments prevent her from performing past

relevant work, if other work exists in significant numbers in the national economy

that accommodates the claimant’s RFC and vocational factors, she is not disabled.6

At step five (or step four in cases in which the ALJ decides a claimant can

perform past work), the ALJ formulates RFC through interpretation of the medical

evidence and the claimant’s subjective complaints, based on the impairments

identified at step two. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).

“[R]esidual functional capacity is the most [a claimant] can still do despite [the

claimant’s] limitations. 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). The ALJ

relies on RFC to make the ultimate vocational determination required by step five.

5 As set forth above, the claimant bears the burden of establishing a severe impairment that keeps

her from performing past relevant work. 20 C.F.R. § 404.1512; Chester v. Bowen, 792 F.2d 129,

131 (11th Cir. 1986).

6 If the claimant meets her burden at step four, the burden shifts to the Commissioner at step five

to show the existence of other jobs in the national economy which, given the claimant=s

impairments, the claimant can perform. MacGregor v. Bowen, 786 F.2d 1050, 1052 (11th Cir.

1986).

FACT BACKGROUND

Plaintiff was 54 years old on the alleged onset date (tr. 77, 91). She has a

high school education and work experience as a criminal justice technician and field

service technician for a sheriff’s office (id. at 40–42, 287–88). Plaintiff alleges

disability due to neck, back, hand, and wrist impairments, as well as depression and

anxiety (id. at 77–78, 91–92).

Plaintiff testified at the hearing as to her impairments and the alleged effects

thereof. Plaintiff explained she had four surgeries on her neck and two fusions of

her lumbar spine (id. at 59–60). She said she needed additional imaging of her neck

but was unable to afford it (id. at 60–61). She also said Dr. Stevenson wanted to

give additional injections for pain and that if that did not work, he would “probably

have to go in and take care of some more discs” (id. at 61). Plaintiff said her left

arm was fractured (id. at 46–47). She also said she had severe depression and

anxiety and suffered from panic attacks (id. at 48).

Plaintiff testified she could sit for about fifteen minutes and stand for

approximately ten minutes at a time (id. at 49). She could walk “real slow” for

about half an hour and used a walker when she had a pinched nerve (id. at 49–50).

She said her biggest problem was her neck (id. at 50).

Plaintiff said she could lift approximately six pounds (id.). She also said she

could pick up a gallon of milk but had to use two hands (id. at 50–51). She could

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climb approximately five steps before getting dizzy and cramping up with pain down

her buttocks (id.). She said she was unable to reach up to get something off a high

shelf (id. at 52). Plaintiff testified her left hand was weaker than her right and that

she wore a brace on her right hand, which was going to require surgery (id. at 54).

She could use her fingers to pick up small objects but was “not accurate” (id. at 54–

55). She could not squat or stoop due to pain in her lower back (id. at 55).

When asked about her daily activities, Plaintiff said she dressed and bathed

herself (id.). She cooked, washed dishes, did laundry, and cleaned, although

vacuuming was “a little difficult” (id.). She explained she had to vacuum for ten

minutes at a time and then rest for about half an hour before resuming (id. at 55–56).

She could drive but did not use the computer or read because she could not keep her

head down without her arms going numb (id. at 56–58). She said she watched

television all day—from eleven o’clock in the morning until two o’clock the

following morning—and did not attend church because she could not sit in the pews

for any length of time (id. at 57–58).

A vocational expert, Jackson C. McKay, also testified at the hearing (id. at 38,

66–75). Mr. McKay classified Plaintiff’s past work as that of a sheriff’s deputy,

explaining that even though “she wasn’t making arrests, . . . she was observing and

assisting the public” (id. at 67). Mr. McKay testified Plaintiff performed the

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position at the heavy exertional level (id. at 67–68). Mr. McKay also testified

Plaintiff would have acquired transferable skills through her position as a sheriff’s

deputy, including “knowledge of the criminal justice system, specific knowledge of

emergency radio communications, and recordkeeping,” which would transfer to the

job of emergency dispatcher (id. at 70–71). According to Mr. McKay, a person of

Plaintiff’s age, education, and work experience, with the RFC the ALJ assigned,

could perform the job of emergency dispatcher (id. at 72–73). If the individual

required breaks throughout the day such that she was off task for twenty percent or

more of the workday, however, she could not perform that or any other position, as

all work would be eliminated (id. at 73). The same would be true if the individual

was absent four or more times per month or limited to the performance of simple

and routine tasks (id. at 74–75).

DISCUSSION

I. Mental Limitations

As indicated above, Plaintiff argues the ALJ erred in failing to include mental

limitations in the RFC and in a hypothetical question posed to the vocational expert.

The Eleventh Circuit has held that “where a claimant has presented a colorable claim

of mental impairment, the social security regulations require the ALJ to complete a

PRTF [Psychiatric Review Technique Form] and append it to the decision, or

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incorporate its mode into his findings and conclusions.” Moore, 405 F.3d at 1214;

see Mills v. Comm’r of Soc. Sec., 659 F. Appx 541, 542–43 (11th Cir. 2016) (citing

Moore). This technique requires rating the claimant’s degree of functional

limitation in four broad areas—ability to understand, remember, or apply

information; ability to interact with others; ability to concentrate, persist, or maintain

pace; and ability to adapt or manage oneself. 20 C.F.R §§ 404.1520a(c)(3) and

416.920a(c)(3); see Moore, 405 F.3d at 1213–14. These functional areas can be

rated none, mild, moderate, marked, or extreme. 20 C.F.R §§ 404.1520a(c)(4);

416.920(c)(4). If the ALJ finds a mental limitation, even if non-severe, the ALJ

must consider the limitation when determining RFC and document the findings and

conclusions in that regard in the written decision. 20 C.F.R. §§ 404.1520a(d)(3),

416.920a(d)(3), 404.1520a(e)(4), 416.920a(e)(4). The ALJ also must incorporate

the limitation into a hypothetical question posed to the vocational expert. Winschel

v. Comm’r Soc. Sec., 631 F.3d 1176, 1180–81 (11th Cir. 2011); 20 C.F.R.

§§ 404.1523, 416.923, 404.1545(a)(2), 416.945(a)(2) (requiring adjudicators to

consider the functional effects of even non-severe impairments when formulating

RFC); SSR 96-8p, 1996 WL 374184, at *5 (“In assessing RFC, the adjudicator must

consider limitations and restrictions imposed by all of an individual’s impairments,

even those that are not ‘severe.’”). Only if the limitation is included can the

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vocational expert’s testimony constitute substantial evidence in support of the ALJ’s

decision. Winschel, 631 F.3d at 1180–81; Lanier v. Comm’r. of Soc. Sec., 252 F.

App’x 311, 315 (11th Cir. 2007) (“In order for a [vocational expert’s] testimony to

constitute substantial evidence, the ALJ must pose a hypothetical question which

comprises all of the claimant’s impairments[,] . . . [b]ut the hypothetical need only

include limitations supported by the record.”). Failure to incorporate the limitation

in the hypothetical necessitates remand. Moore, 405 F.3d at 1214.

In his decision, the ALJ found Plaintiff had medically determinable

impairments of affective disorders, personality disorders, and substance addiction

disorders (tr. 18). He further found that the impairments “do not cause more than

minimal limitation in Plaintiff’s ability to perform basic mental work activities,”

when considered singly and in combination, and thus are non-severe (id.). The ALJ

discussed evidence in the record pertaining to the disorders, including treatment

records, and stated it “appear[ed] that the bulk of complaints [were] situational

(related to job loss and loss of income)” and that “[t]he bulk of mental status exams

following [the] alleged onset date [were] generally unremarkable . . . except for mild

labile effect and dysphoric mood . . . and anxious mood/affect” (id.). The ALJ noted

Plaintiff’s memory was considered intact on multiple occasions, and her attention

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and concentration were adequate (id.). He also observed that Plaintiff’s treatment

“consisted primarily of medication management with some therapy” (id.).

The ALJ gave great weight to the opinions of Department of Disability

Services mental health specialists, who opined Plaintiff’s mental impairments did

not cause more than mild functional limitation, finding they were supported by the

overall record (id.). The ALJ then explicitly addressed the four broad areas of

mental functioning, finding mild limitation in each and setting forth the evidence of

record upon which he relied in making such findings (id. at 18–19).

The ALJ explained that mental limitations do not constitute an RFC

assessment but, instead, are used to rate the severity of mental impairments at steps

two and three and that “[t]he mental RFC assessment used at steps four and five of

the sequential evaluation process requires a more detailed assessment by itemizing

various functions contained in the broad categories found in paragraph B of the adult

mental disorders listings in 12.00 of the Listing of Impairments” (id. at 19). The

ALJ concluded by stating the RFC assessment set forth in the decision “reflects the

degree of limitation [he] found in the ‘paragraph B’ mental function analysis” (id.).

Based on the above, the undersigned rejects Plaintiff’s contention that the ALJ

did not consider her mental limitations when formulating RFC—he plainly did.

The undersigned agrees, however, that despite finding limitations in all four

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functional areas, which the ALJ acknowledged may have caused some limitation in

Plaintiff’s ability to perform basic mental work activities, the ALJ did not include

any such limitations in a hypothetical question posed to the vocational expert or

otherwise account for them, relying instead only on the assigned RFC which

incorporated no mental limitations. The ALJ erred in that regard. Accordingly,

the undersigned finds this case should be remanded so the ALJ can incorporate

Plaintiff’s mental limitations into a hypothetical question posed to the vocational

expert and render a decision that accounts for the vocational expert’s response to the

question posed. See, e.g., Winschel, 631 F.3d at 1181 (reversing and remanding

because the ALJ determined at step two that claimant’s mental impairments caused

a moderate limitation in maintaining concentration, persistence, and pace but did not

indicate such impairment did not affect claimant’s ability to work or otherwise

implicitly account for the limitation in the hypothetical, holding “the ALJ should

have explicitly included the limitation in the hypothetical question to the vocational

expert”).7

7 Plaintiff also argues the record supports the contention that she has mental limitations that impact

her ability to engage in sustained work activity (ECF No. 13 at 32–33). Given the undersigned’s

finding that the ALJ erred in failing to include mental limitations in a hypothetical question posed

to the vocational expert, the undersigned need not address whether the record, in fact, supports

such assertion.

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II. Dr. Stevenson’s Opinions

Plaintiff also argues the ALJ erred in giving little weight to the opinions of

Dr. Stevenson, a treating physician. In evaluating medical opinions, an ALJ

considers a number of factors, including whether the doctor examined or treated the

claimant, the evidence the doctor presents to support his or her opinion, and whether

the opinion is consistent with the record as a whole. See 20 C.F.R. §§ 404.1527(c),

416.927(c). “[T]he ALJ must state with particularity the weight given to different

medical opinions and the reasons therefor.” Denomme v. Comm’r, Soc. Sec.

Admin., 518 F. App’x. 875, 877 (11th Cir. 2013). An ALJ may choose to accept

some conclusions––or restrictions––within an opinion while rejecting others. If

such a choice is made, in addition to explaining the overall weight given a particular

medical opinion, the ALJ must explain “‘with at least some measure of clarity the

grounds for [a] decision’” to adopt particular aspects of a medical opinion.

Winschel, 631 F.3d at 1179 (quoting Owens v. Heckler, 748 F.2d 1511, 1516 (11th

Cir. 1984)). Failure to explain the rationale for crediting only certain aspects of an

opinion will result in a reviewing court “declin[ing] to affirm ‘simply because some

rationale might have supported the ALJ’s conclusion.’” Id.

A treating source’s opinion generally is entitled to more weight, and an ALJ

must give good reason for discounting such an opinion. See 20 C.F.R.

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§§ 404.1527(c)(2); 416.927(c)(2); Winschel, 631 F.3d at 1179.8 The opinion of a

non-treating physician, however, is not entitled to any deference or special

consideration. See 20 C.F.R. §§ 404.1502; 404.1527(c)(1), (c)(2); 416.902,

416.927(c)(1), (c)(2); Denomme, 518 F. App’x at 877–78; Crawford v. Comm’r of

Soc. Sec., 363 F.3d 1155, 1160 (11th Cir. 2004). Moreover, opinions on certain

issues, such as a claimant’s RFC and whether a claimant is disabled, “are not medical

opinions, . . . but are, instead, opinions on issues reserved to the Commissioner

because they are administrative findings that are dispositive of a case; i.e., that would

direct the determination or decision of disability.” 20 C.F.R. §§ 404.1527(d),

416.927(d); see SSR 96-5p. Opinions reserved to the Commissioner, even when

offered by a treating physician, are not entitled to controlling weight or special

significance. See SSR 96-5p. Indeed, “[g]iving controlling weight to such

opinions . . . would be an abdication of the Commissioner’s statutory responsibility

to determine whether an individual is disabled.” Id. Therefore, although a

physician’s opinions about what a claimant can still do or the claimant’s restrictions

may be relevant, such opinions are not determinative because the ALJ is responsible

8 On January 18, 2017, the Social Security Administration adopted new rules which, for claims

filed after March 27, 2017, modify the rule of primacy for treating physicians’ opinions. 82 F.R.

5844, 5869. Because this claim was filed on June 23, 2016 (tr. 77–78, 91–92), the new rules do

not apply. 82 F.R. 5869.

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for assessing the claimant’s RFC. See 20 C.F.R. §§ 404.1527(d), 416.927(d),

416.945(a)(3), 416.946(c); SSR 96-5p.

On October 8, 2014, before the alleged onset date, Dr. Stevenson completed

a Physical Assessment form in which he opined Plaintiff’s symptoms were severe

enough to constantly interfere with the attention and concentration required to

perform simple work-related tasks (tr. 359, 1416). Dr. Stevenson indicated

Plaintiff’s medications caused drowsiness and that she would need to recline or lie

down during an eight-hour workday in excess of normal breaks (id.). Dr. Stevenson

opined Plaintiff could walk only half a block before needing rest or experiencing

significant pain and could sit and stand/walk a total of only two hours each in an

eight-hour workday (id.). He said Plaintiff would need to take unscheduled breaks

every thirty minutes, which would last five minutes (id.). Finally, Dr. Stevenson

indicated Plaintiff could frequently lift less than ten pounds but never lift more than

ten pounds and would be absent from work four or more days per month (id. at 359–

60).

Dr. Stevenson completed another Physical Assessment form on November 2,

2016 (id. at 1584). Dr. Stevenson noted he treated Plaintiff for failed cervical and

lumbar surgeries (id.). He again indicated Plaintiff’s medications caused

drowsiness (id.). He reiterated that Plaintiff’s symptoms were severe enough to

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constantly interfere with the attention and concentration required to perform simple

work-related tasks and that Plaintiff would need to recline or lie down during an

eight-hour workday in excess of normal breaks (id.). This time, Dr. Stevenson said

Plaintiff could not walk any distance without experiencing pain and could sit and

stand/walk a total of only one hour each in an eight-hour workday (id.). He imposed

the same lifting/carrying restrictions as in the first assessment and again opined

Plaintiff would be absent from work four or more days per month (id. at 1584–85).

Dr. Stevenson completed a third Physical Assessment form on May 10, 2017

(id. at 1738, 1741). He stated Plaintiff’s medications caused drowsiness, dizziness,

upset stomach, balance issues, and an inability to think clearly (id. at 1738). He

once again said Plaintiff would need to recline or lie down during an eight-hour

workday in excess of normal breaks, could not walk any distance without

experiencing pain, and could sit and stand/walk a total of only one hour each in an

eight-hour day (id.). He indicated Plaintiff would need to take unscheduled breaks

every fifteen minutes, lasting up to five minutes at a time, and could frequently

lift/carry up to ten pounds but never more (id.). Dr. Stevenson opined Plaintiff

could use her hands, fingers, and arms only five percent of the day and would be

absent from work four or more days per month (id. at 1738–39).

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The ALJ gave the opinions Dr. Stevenson expressed in the Physical

Assessment forms little weight, finding as follows:

As for the [first Physical Assessment form], the undersigned gives this

little weight as it was given back in 2014 (prior to the alleged onset

date). As for the [subsequent assessments], the undersigned gives

them little weight. Although these limitations were given by a treating

provider, they were actually not supported or consistent with treatment

notes that have revealed she has been managed with medications.

With regard to limitations given back in October 2016 . . . , those were

not consistent with postoperative records indicating that [Plaintiff] was

doing well (with regard to h[er] lumbar spine) postoperatively . . . .

The evidence shows minimal follow up for her alleged lumbar

complaints leading up to the [October 2016 assessment]. As for the

[May 2017 assessment], the undersigned does not finds [sic] that this is

supported by treatment notes (in light of rather limited treatment notes

other than some injections and surgery) but limited follow up to support

such severe limitations. Moreover, it was noted that she was not able to

think clearly but this is simply not documented in the treatment records

as well.

(id. at 25).

In arguing the ALJ erred in discounting Dr. Stevenson’s opinions, Plaintiff

points out that Dr. Stevenson had “the most longitudinal treating relationship of any

provider in the record,” having treated Plaintiff for twelve years (ECF No. 13 at 24).

Plaintiff contends the ALJ’s conclusion that Dr. Stevenson’s opinions were

unsupported or inconsistent with treatment notes that reveal she was managed with

medications “is belied by any common sense reading of the medical evidence and .

. . a blatant mischaracterization of the evidence” (id.). Plaintiff says she was not

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managed by medication alone, as evidenced by the fact that she had six surgeries on

her cervical and lumbar spine and three surgeries related to wrist and hand

impairments over the course of seven years. Plaintiff characterizes the ALJ’s

statement that the bulk of her treatment was conservative as “blatantly absurd given

the extent of Plaintiff’s spinal deformities and hand/wrist impairments” (id. at 28).

Plaintiff references her treatment records, including Dr. Stevenson’s notes indicating

she had failed conservative treatment and even surgeries. Plaintiff argues that in

giving little weight to Dr. Stevenson’s opinions, the ALJ mischaracterized the

medical record and substituted his opinion for that of Dr. Stevenson, warranting

remand.

Given the fact that this matter is being remanded due to the ALJ’s failure to

incorporate Plaintiff’s mental limitations into a hypothetical question posed to the

vocational expert, the undersigned need not determine whether the ALJ also erred

in giving little weight to Dr. Stevenson’s opinions. It bears noting, however, that

many of the ALJ’s reasons for discounting Dr. Stevenson’s opinions are supported

by the record. For example, the opinions expressed in the 2014 Physical

Assessment form are of limited relevance because Dr. Stevenson completed the form

nearly two years before Plaintiff’s alleged onset date. See Carmickle v. Comm’r,

Soc. Sec. Admin., 533 F.3d 1155, 1165 (9th Cir. 2008) (noting “[m]edical opinions

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that predate the alleged onset of disability are of limited relevance”) (cited in Jones

v. Saul, No. 1:19cv123/CAS, 2020 WL 1704411, at *16 (N.D. Fla. Apr. 6, 2020));

see also Goff ex rel. Goff v. Comm’r of Soc. Sec. Admin., 253 F. App’x 918, 922

(11th Cir. 2007) (distinguishing between medical opinions offered during the

relevant time period and those that related back several years). The 2014 opinions

also are inconsistent with Plaintiff’s work as a criminal justice technician through

June 2016, in which capacity Plaintiff—according to her own testimony—lifted

boxes and bags weighing sixty to seventy pounds, and did so up to ten to twenty

times per day (tr. 40–41, 286, 300). Moreover, many of the opinions expressed in

the 2016 and 2017 forms are inconsistent with Dr. Stevenson’s treatment notes (see,

e.g., tr. 22–26, 960, 962, 1018, 1302, 1584, 1707, 1713, 1738, 1810, 1818, 1827).

Considering Plaintiff’s medical history, however, particularly the numerous neck

and back surgeries, the undersigned recommends that, upon remand, the ALJ revisit

the issue of Plaintiff’s physical RFC and the weight assigned to Dr. Stevenson’s

opinions.9

9 Plaintiff also contends the ALJ impermissibly substituted his judgment for that of Dr. Stevenson.

The undersigned rejects Plaintiff’s argument in that regard. Although an ALJ may not arbitrarily

substitute his judgment for that of a medical professional, as Plaintiff asserts, an ALJ does not do

so simply by discounting the weight given a physician’s opinion. See, e.g., Beegle v. Soc. Sec.

Admin., Comm’r, 482 F. App’x 483, 488 (11th Cir. 2012) (ALJ did not substitute her opinion for

that of a doctor where she gave the opinion little weight based on its inconsistency with other

evidence in the record); Wind v. Barnhart, 133 F. App’x 684, 691 (11th Cir. 2005) (finding ALJ

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CONCLUSION

For the foregoing reasons, the undersigned finds the ALJ erred in failing to

incorporate mental limitations in a hypothetical question posed to the vocational

expert and that the ALJ’s decision therefore should be reversed and the matter

remanded with instructions that the ALJ pose a hypothetical question to a vocational

expert that accounts for the mental limitations he found and render a decision that

takes into consideration the vocational expert’s response to the question posed.10 42

U.S.C. § 405(g); Lewis, 125 F. 3d at 1439; Foote v. Chater, 67 F.3d 1553, 1560 (11th

Cir. 1995). The undersigned also recommends that, upon remand, the ALJ revisit

the issue of Plaintiff’s physical RFC and the weight assigned to Dr. Stevenson’s

opinions.

Accordingly, it is hereby ORDERED:

1. Pursuant to sentence four of 42 U.S.C. § 405(g), the decision of the

Commissioner is REVERSED.

did not substitute his opinion for, and properly discounted, doctor’s opinion based in part on

claimant’s statements of daily activities, noting that “[c]hoosing between conflicting evidence is a

task particularly suited to the fact finder”).

10 The court notes that, to the extent it reviewed the legal principles upon which the ALJ’s decision

is based, it conducted a de novo review. See Moore, 405 F.3d at 1208.

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2. The Commissioner is directed to remand this case to the ALJ for the

purpose of the ALJ posing a hypothetical question to a vocational expert that

accounts for the mental limitations he found and rendering a decision that accounts

for the vocational expert’s response to the question posed. The undersigned also

recommends that, upon remand, the ALJ revisit the issue of Plaintiff’s physical RFC

and the weight assigned to Dr. Stevenson’s opinions.

3. The clerk of court is directed to enter judgment accordingly and close

the file.

DONE AND ORDERED this 18th day of March 2021.

/s/ Elizabeth M. Timothy

ELIZABETH M. TIMOTHY

CHIEF UNITED STATES MAGISTRATE JUDGE

Case No.: 1:20cv22/EMT