Mitchell v. Kijakazi

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 23-CV-60321-STRAUSS

TERRANCE ANDRE MITCHELL,

Plaintiff,

v.

KILOLO KIJAKAZI,

Acting Commissioner of Social Security,

Defendant.

__________________________________/

ORDER ON MOTIONS FOR SUMMARY JUDGMENT

THIS MATTER came before the Court upon Plaintiff’s Motion for Summary

Judgment/Initial Brief (“Plaintiff’s Motion”) [DE 10] and Defendant’s Motion for Summary

Judgment (“Defendant’s Motion”) [DE 15]. I have reviewed both motions, the additional briefing

thereon [DE 17, 19, 21], the administrative record [DE 4], and all other filings in this case. For

the reasons discussed herein, Plaintiff’s Motion [DE 10] will be GRANTED and Defendant’s

Motion [DE 15] will be DENIED.

I. BACKGROUND & PROCEDURAL HISTORY

Plaintiff applied for disability insurance benefits on March 1, 2020, alleging a disability

onset date of November 2, 2019 (“Alleged Onset Date” or “AOD”). Tr. 20, 113, 129, 322-26.

Plaintiff, who was born in 1969, was 50 years old on the AOD. His claim was denied initially and

upon reconsideration. Tr. 102-29. Thereafter, Plaintiff appeared with counsel at a telephonic

hearing before an Administrative Law Judge (“ALJ”) on March 24, 2021. Tr. 58-79. On April

29, 2021, the ALJ issued a decision finding that Plaintiff was not disabled. Tr. 133-45.

However, on March 11, 2022, the Appeals Council vacated the ALJ’s decision and

remanded the matter to the ALJ. Tr. 151-56. Following remand, Plaintiff and his counsel appeared

at a July 13, 2022 telephonic hearing before the ALJ. Tr. 39-57. On August 5, 2022, the ALJ

issued a new decision, once again finding that Plaintiff was not disabled. Tr. 20-32. On December

16, 2022, the Appeals Council denied Plaintiff’s request for review, thereby leaving the ALJ’s

decision as the final decision of the Commissioner. Tr. 1-3. Consequently, on February 17, 2023,

Plaintiff filed this action seeking judicial review of the Commissioner’s decision.

II. STANDARD OF REVIEW

In reviewing claims brought under the Social Security Act, a court’s role is limited.

Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). The Commissioner’s findings of

fact must be affirmed if they are based upon “substantial evidence.” See 42 U.S.C. § 405(g);

Richardson v. Perales, 402 U.S. 389, 401 (1971); Moore v. Barnhart, 405 F.3d 1208, 1211 (11th

Cir. 2005). “Substantial evidence is . . . such relevant evidence as a reasonable person would

accept as adequate to support a conclusion.” Moore, 405 F.3d at 1211 (citing Crawford v. Comm’r

of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004)). It “is something ‘more than a mere scintilla,

but less than a preponderance.’” Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005) (citation

omitted). “If the Commissioner’s decision is supported by substantial evidence, this Court must

affirm, even if the proof preponderates against it.” Id. (quoting Phillips v. Barnhart, 357 F.3d

1232, 1240 n.8 (11th Cir. 2004)). Courts “may not decide facts anew, reweigh the evidence, or

substitute [their] judgment for that of the [Commissioner].” Id. (quoting Phillips, 357 F.3d at 1240

n.8); Bloodsworth, 703 F.2d at 1239. In addition to determining whether the Commissioner’s

factual findings are supported by substantial evidence, courts must determine whether the ALJ

applied the correct legal standards. Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002).

III. DISCUSSION

A. THE SEQUENTIAL EVALUATION

A “disability” is defined 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 twelve months.” 42 U.S.C. § 1382c(a)(3)(A). In making a disability determination, “the ALJ

must consider the evidence in its entirety, including: (1) objective medical facts or clinical

findings; (2) diagnoses of examining physicians; (3) subjective evidence of pain and disability as

testified to by the claimant . . . and (4) the claimant’s age, education, and work history.” Maffia v.

Comm’r of Soc. Sec., 291 F. App’x 261, 262-63 (11th Cir. 2008) (quoting DePaepe v. Richardson,

464 F.2d 92, 94 (5th Cir.1972)); see also Walden v. Schweiker, 672 F.2d 835, 839 (11th Cir. 1982).

To arrive at a determination as to disability, the ALJ must undertake the sequential

evaluation embodied in 20 C.F.R. § 404.1520. This process requires that the ALJ first determine

whether the claimant is presently engaged in substantial gainful activity. 20 C.F.R. § 404.1520(b).

If so, a finding of “no disability” is made.

If the claimant is not engaged in such work, then the ALJ must proceed to the second step

and determine whether the claimant suffers from a “severe impairment.” An impairment is severe

if it significantly limits the claimant’s physical or mental ability to perform basic work activities.

20 C.F.R. § 404.1520(c). If no severe impairment is found, then the ALJ will conclude that there

is no disability; if a severe impairment is found, then the ALJ will proceed to the next step of the

analysis. See id.

The third step requires the ALJ to determine whether the claimant’s impairment meets or

equals those listed in Appendix 1 of the Regulations. 20 C.F.R. § 404.1520(d). If so, the ALJ will

find the claimant disabled without considering age, education, and work experience. Id. If not,

the inquiry will proceed to the next stage.

Step four requires the ALJ to determine whether the claimant has the residual functional

capacity (“RFC”) to perform past relevant work. 20 C.F.R. § 404.1520(e). The Regulations define

RFC as “the most you can still do despite your limitations.” 20 C.F.R. § 404.1545(a)(1). This

determination takes into account “all of the relevant medical and other evidence,” including the

claimant’s own testimony and the observations of others. 20 C.F.R. § 404.1545(a)(3). The ALJ

must then compare the RFC with the physical and mental demands of the claimant’s past relevant

work to determine whether the claimant is still capable of performing that kind of work. If so, the

claimant is found not disabled. 20 C.F.R. § 404.1520(f).

If the claimant establishes an inability to return to past relevant work, the inquiry turns to

step five. “At step five the burden of going forward shifts to the [Commissioner] ‘to show the

existence of other jobs in the national economy which, given the claimant’s impairments, the

claimant can perform.’” Washington v. Comm’r of Soc. Sec., 906 F.3d 1353, 1359 (11th Cir. 2018)

(quoting Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987)). If the Commissioner points to

possible alternative employment, then the burden returns to the claimant to prove an inability to

perform those jobs. Id. At this fifth and final step, the ALJ must resolve whether the claimant is

actually capable of performing other work. See 20 C.F.R. §§ 404.1520(g), 404.1560(c).

To help evaluate whether sufficient jobs exist that can be performed given the claimant’s

age, education, and physical limitations, the Commissioner has promulgated Medical Vocational

Guidelines. See 20 C.F.R. § 404, subpt. P, app. 2. The guidelines may apply “where a person is

not doing substantial gainful activity and is prevented by a severe medically determinable

impairment from doing vocationally relevant past work.” 20 C.F.R. § 404.1569. The guidelines

are composed of detailed grids and rules, which direct a finding of disabled or not disabled based

on a claimant’s RFC, age, education, and previous work experience. Walker v. Bowen, 826 F.2d

996, 1002 (11th Cir. 1987).

Yet, the guidelines “do not cover all possible variations of factors” and are inapplicable “if

one of the findings of fact about the person’s vocational factors and [RFC] is not the same as the

corresponding criterion of a rule.” 20 C.F.R. § 404.1569. Therefore, “[e]xclusive reliance on the

grids is not appropriate either when [the] claimant is unable to perform a full range of work at a

given residual functional level or when a claimant has non-exertional impairments that

significantly limit basic work skills.” Phillips, 357 F.3d at 1242 (citation omitted). See also

Walker, 826 F.2d at 1002-03; Hargis v. Sullivan, 945 F.2d 1482, 1490 (10th Cir. 1991).

Nevertheless, in such situations, the guidelines may serve as a framework to determine whether

sufficient jobs exist within a claimant’s range of RFC. Hargis, 945 F.2d at 1490. However, the

Commissioner may carry his or her burden through the use of a vocational expert (“VE”) when

exclusive reliance on the guidelines is not appropriate. Chaney-Everett v. Astrue, 839 F. Supp. 2d

1291, 1299 (S.D. Fla. 2012) (citing Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989); Walker, 826

F.2d at 1003). A VE provides the ALJ with a realistic appraisal of the work that a claimant is

capable of performing. Id. (citing Walker, 889 F.2d at 50).

B. ALJ’S APPLICATION OF THE SEQUENTIAL EVALUATION

After considering the evidence, the ALJ found that Plaintiff was not disabled between the

AOD and September 30, 2020, Plaintiff’s Date Last Insured (“DLI”).1 See Tr. 20-32. Initially,

the ALJ addressed certain preliminary issues and outlined in detail the five steps of the sequential

1 To succeed on his claim for disability benefits, Plaintiff was required to establish disability prior

to his DLI. See Moore, 405 F.3d at 1211.

evaluation. Tr. 20-22. Then, addressing the first step in the sequential evaluation, the ALJ found

that Plaintiff had not engaged in substantial gainful activity between the AOD and DLI. Tr. 22.

At step two, the ALJ found that Plaintiff had the severe impairments of

cervical degenerative disc disease; right shoulder degenerative joint disease, rotator

cuff partial tears, arthritis, and tendonitis; left shoulder degenerative joint disease

and rotator cuff tendonitis; bilateral carpal tunnel syndrome; lumbar degenerative

disc disease; right knee osteoarthritis; right ankle joint degenerative changes status

post ligament tears and open reduction and internal fixation; hypertension; diabetes;

and obesity.

Tr. 23. Next, at step three, the ALJ found that Plaintiff did not have an impairment or combination

of impairments that met or medically equaled the severity of any of the impairments listed in 20

C.F.R. Part 404, Subpart P, Appendix 1. Tr. 23.

The ALJ next assessed Plaintiff’s RFC, determining that Plaintiff has the RFC

to perform light work as defined in 20 CFR 404.1567(b) except: he can never climb

ladders, ropes, or scaffolds; he can frequently climb ramps and stairs, balance, and

stoop; he can occasionally kneel, crouch, and crawl; he can frequently reach in all

directions but never overhead with the right upper extremity; he is limited to

pushing and pulling no more than five pounds with the right upper extremity; he

can frequently handle bilaterally; he can frequently finger and feel with the left

upper extremity; he can occasionally finger and feel with the right upper extremity;

he can tolerate frequent exposure to extreme cold, humidity, vibrating surfaces, and

tools; and he must avoid exposure to workplace hazards such as unprotected

heights, moving mechanical parts, and operating heavy machinery.

Tr. 24. After assessing Plaintiff’s RFC, the ALJ found that – based on Plaintiff’s RFC – Plaintiff

was unable to perform his past relevant work through the DLI. Tr. 30.

Therefore, the ALJ considered Plaintiff’s age, education, work experience, and RFC to

determine whether a significant number of jobs, that Plaintiff could perform, exist in the national

economy. Tr. 30-31. Relying on testimony from a VE, the ALJ identified three jobs – which

collectively have approximately 46,000 positions nationwide – that Plaintiff is able to perform.

See Tr. 31. As a result, the ALJ found that Plaintiff was not disabled between the AOD and DLI.

Tr. 31.

C. ANALYSIS

In his motion, Plaintiff contends that the ALJ erred in several ways, including by failing to

consider the medical opinion of Dr. Kevin Cairns. Although I disagree that the ALJ was required

to discuss and consider Dr. Cairns’ opinion as a “medical opinion,” I nevertheless agree that

remand is warranted as errors in the ALJ’s decision create doubt regarding whether the ALJ

considered evidence from Dr. Cairns in evaluating Plaintiff’s medical condition.2

By way of background, Dr. Cairns began treating Plaintiff around February 5, 2020, more

than 7 months before Plaintiff’s DLI. See Tr. 529-35. In both March 2020 and October 2021, Dr.

Cairns completed a form in which he opined that Plaintiff’s “functional limitations and restrictions,

identified in detail below, are of such severity that [Plaintiff] cannot perform activities, even at a

sedentary level . . . .” Tr. 570, 1329 (emphasis added). But Dr. Cairns did not specifically address

Plaintiff’s functional limitations or restrictions; rather, he opined that Plaintiff could not even

perform sedentary work without explaining why or how Plaintiff was so limited. See Tr. 570,

1329.

When the ALJ referenced Dr. Cairns’ opinion in her decision, she simply noted that it was

offered in October 2021, that it did not relate to a period at issue in this case because it was offered

well after the DLI, and consequently, that it was not probative or persuasive. Tr. 30. However,

the ALJ obviously overlooked the fact that Dr. Cairns provided the same opinion in March 2020,

which was several months before the DLI. Thus, Defendant concedes that the ALJ’s determination

2 Because I find that remand for further proceedings is warranted based on issues concerning the

ALJ’s consideration (or lack thereof) of evidence from Dr. Cairns, I do not reach Plaintiff’s other

contentions of error.

that Dr. Cairns’ opinion did not relate to the period at issue was factually erroneous. Nonetheless,

Defendant contends that the error was harmless because Dr. Cairns’ conclusory statement does not

qualify as a “medical opinion” and/or was a statement on an issue reserved to the Commissioner.

Plaintiff replies that even if Dr. Cairns’ opinion was on an issue reserved to the Commissioner, the

ALJ nonetheless committed harmful error by failing to consider any medical evidence from Dr.

Cairns. Because this argument – regarding the ALJ failing to consider any evidence from Dr.

Cairns – was arguably within the scope of the issues raised in Plaintiff’s Motion, but only clearly

spelled out for the first time in Plaintiff’s Reply, I ordered the parties to submit supplemental

briefing on the issue, which they have now done. See [DE 18-21].

As an initial matter, I agree with Defendant that Dr. Cairns’ statement regarding Plaintiff’s

inability to perform even sedentary work either does not qualify as a medical opinion, or at the

very least, is a statement on an issue reserved to the Commissioner. A “medical opinion” is defined

as “a statement from a medical source about what [a claimant] can still do despite [her]

impairment(s) and whether [she] ha[s] one or more impairment-related limitations or restrictions

in the” ability to: (i) “perform physical demands of work activities, such as sitting, standing,

walking, lifting, carrying, pushing, pulling, or other physical functions”; (ii) perform mental

demands of work activities; (iii) perform other work demands (e.g., using senses such as seeing or

hearing); and/or (iv) adapt to environmental conditions. 20 C.F.R. § 404.1513(a)(2). Given that

Dr. Cairns did not address any specific “physical demands of work activities,” and instead opined

that Plaintiff could not even perform sedentary work without explanation, it is unlikely that Dr.

Cairns’ statement qualifies as a “medical opinion.”

Regardless, even if Dr. Cairns’ statement could arguably be considered a “medical

opinion,” the statement is clearly one that concerns an issue reserved to the Commissioner. The

Social Security regulations provide that “[s]tatements on issues reserved to the Commissioner” are

“inherently neither valuable nor persuasive to the issue of whether you are disabled . . . .” 20

C.F.R. § 404.1520b(c); see also Glasby v. Soc. Sec. Admin., Comm’r, No. 21-12093, 2022 WL

1214015, at *2 (11th Cir. Apr. 25, 2022). Therefore, “[a]n ALJ is specifically relieved from

providing any analysis about how such evidence was considered.” Miller v. Kijakazi, No. 22-

60541, 2023 WL 234773, at *2 (5th Cir. Jan. 18, 2023) (citing 20 C.F.R. § 404.1520b(c)). The

regulations specify eight categories of statements that concern “issues reserved to the

Commissioner.” See 20 C.F.R. § 404.1520b(c)(3). Two such categories are statements that you

are not “able to work” and “[s]tatements about what your [RFC] is using our programmatic terms

about the functional exertional levels in Part 404, Subpart P, Appendix 2, Rule 200.00 instead of

descriptions about your functional abilities and limitations.” 20 C.F.R. § 404.1520b(c)(3)(i), (v).

Here, by opining that Plaintiff could not perform work even at the sedentary level (the

lowest exertional level), Dr. Cairns effectively opined that Plaintiff is unable to work. Moreover,

Dr. Cairns used a programmatic term regarding Plaintiff’s functional exertional level rather than

describing any of Plaintiff’s functional abilities or limitations. Thus, Dr. Cairns’ statement plainly

qualifies as a statement on an issue reserved to the Commissioner under § 404.1520b(c)(3)(i)

and/or (v). For this reason, while the ALJ’s rationale for finding Dr. Cairns’ statement

unpersuasive was erroneous, the ALJ was not wrong to find the statement unpersuasive – again,

the regulations expressly provide that such a statement is “inherently neither valuable nor

persuasive to the issue of whether you are disabled . . . .” 20 C.F.R. § 404.1520b(c).

If the foregoing was the only concern, Defendant would be correct that the ALJ merely

committed harmless error. But Plaintiff correctly points out that the ALJ’s incorrect rationale –

regarding Dr. Cairns’ statement not being offered until long after the DLI – combined with other

concerns raised by the ALJ’s clearly erroneous citations to exhibits received from Dr. Cairns’

office, casts doubt on whether the ALJ took into account Dr. Cairns’ treatment of Plaintiff at all –

as opposed to disregarding such treatment on the mistaken belief that Dr. Cairns only treated

Plaintiff after the DLI.

Whether the ALJ considered Dr. Cairns’ treatment, or disregarded it based on the ALJ’s

erroneous statement regarding the timing of Dr. Cairns’ opinion, is significant. That is because an

ALJ is required to consider “all relevant medical and other evidence” when determining a

claimant’s RFC. Buckwalter v. Acting Comm’r of Soc. Sec., 5 F.4th 1315, 1320 (11th Cir. 2021);

see also 20 C.F.R. § 404.1545(a)(1) (“We will assess your residual functional capacity based on

all the relevant evidence in your case record.”). An “ALJ must also consider a claimant’s medical

condition taken as a whole.” Schink v. Comm’r of Soc. Sec., 935 F.3d 1245, 1269 (11th Cir. 2019)

(citations omitted). Importantly, though, “[s]o long as the ALJ’s decision demonstrates to the

reviewing court that it considered the claimant’s medical condition as a whole, the ALJ is not

required to cite every piece of evidence in the record.” Buckwalter v. Acting Comm’r of Soc. Sec.,

5 F.4th 1315, 1326 (11th Cir. 2021) (citing Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir.

2005)); see also Mitchell v. Comm’r, Soc. Sec. Admin., 771 F.3d 780, 782 (11th Cir. 2014)

(“[T]here is no rigid requirement that the ALJ specifically refer to every piece of evidence in his

decision, so long as the ALJ’s decision . . . is not a broad rejection which is not enough to enable

a reviewing court to conclude that the ALJ considered the claimant’s medical condition as a

whole.” (quoting Dyer, 395 F.3d at 1211) (alterations adopted)). Nevertheless, an 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.” Schink, 935 F.3d at 1269 (quoting

Keeton v. Dep’t of Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994)) (internal

quotation marks omitted); see also Morrison v. Comm’r of Soc. Sec., 660 F. App’x 829, 834 (11th

Cir. 2016) (“The ALJ must state the grounds for his decision with clarity to enable us to conduct

meaningful review.” (citing Owens v. Heckler, 748 F.2d 1511, 1516 (11th Cir. 1984)).

As noted above, I ordered the parties to submit supplemental briefing. Specifically, I

ordered the parties to address: (1) whether there is any indication in the ALJ’s decision that she

considered medical evidence from Dr. Cairns; and (2) if the ALJ failed to consider medical

evidence from Dr. Cairns, does that failure amount to harmful error. [DE 18]. In ordering

supplemental briefing, I noted that while there is no rigid requirement that an ALJ specifically

refer to every piece of evidence in the record, the Court must ensure that the ALJ did not disregard

all of the evidence from Dr. Cairns based on her erroneous statement regarding Dr. Cairns (i.e.,

based on her potentially mistaken belief that Dr. Cairns’ treatment relates to a period not at issue).

Id.

Prior to ordering supplemental briefing, I reviewed the parties’ cross-motions and briefing,

the ALJ’s decision, and other materials in this matter. As part of my review, I attempted to

ascertain whether there was any indication that the ALJ did consider Dr. Cairns’ treatment (in light

of Plaintiff’s argument that the ALJ did not). I noticed that the ALJ included several citations to

exhibits containing records received from Dr. Cairns’ office. However, in attempting to verify

that the information citing those exhibits actually came from those exhibits, I was largely unable

to do so. I was only able to verify a few pieces of information that may have come from those

exhibits. Aside from one statement that may have been based on Dr. Cairns’ treatment records,

the ALJ’s other statements were based on records that, while received from Dr. Cairns’ office,

were records from other providers (not Dr. Cairns). Given that only one statement was potentially

based on Dr. Cairns’ treatment records and that several citations to exhibits from Dr. Cairns’ office

appeared to be erroneous, I ordered the supplemental briefing.

In Defendant’s sur-reply, Defendant contends that “the ALJ’s decision contains ample

evidence that the ALJ considered Dr. Cairns’s physical examination findings of Plaintiff, as well

as other medical evidence provided by Dr. Cairns.” [DE 19] at 2. In so arguing, Defendant points

to the information mentioned in the preceding paragraph. First, Defendant contends it is clear the

ALJ considered Dr. Cairns’ examination findings given that she cited to Dr. Cairns’ records in

finding that “physical examination findings were unremarkable other than references to

nonspecific reduced range of motion in all planes, pain with flexion, and positive straight leg

raising bilaterally.” Tr. 27. As discussed further below, this is the one statement that may have

come from Dr. Cairns’ treatment records. Second, Defendant points to a few statements the ALJ

made based on the records from other providers that were included in the exhibits from Dr. Cairns’

office (for example, records of MRI results). Defendant contends that this is further evidence the

ALJ considered medical evidence from Dr. Cairns.

In responding to Defendant’s sur-reply, Plaintiff maintains that the ALJ failed to consider

Dr. Cairns’ treatment (based on the ALJ’s erroneous statement regarding Dr. Cairns’ opinion being

rendered after the DLI). Regarding the records that the ALJ considered that were included in the

records received from Dr. Cairns’ office but generated by other providers, Plaintiff argues the

discussion of such records is irrelevant to whether the ALJ considered Dr. Cairns’ treatment.

While I do not agree that the ALJ’s discussion of such records is wholly irrelevant because it does

show that the ALJ at least reviewed the exhibits received from Dr. Cairns’ office, I do agree with

Plaintiff that the ALJ’s mere review of the exhibits is not sufficiently probative of whether the ALJ

took into account Dr. Cairns’ treatment of Plaintiff in evaluating Plaintiff’s medical condition.

Plaintiff’s response to Defendant’s sur-reply also addresses the ALJ’s one statement that

Defendant asserts is based on Dr. Cairns’ treatment records – that “physical examination findings

were unremarkable other than references to nonspecific reduced range of motion in all planes, pain

with flexion, and positive straight leg raising bilaterally.” Tr. 27. Plaintiff contends that the

examinations Defendant asserts the foregoing statement was based on were not otherwise

“unremarkable.” The Defendant points to two examinations from February and March 2020. In

connection with those examinations, Dr. Cairns provided the following comments:

Cervical Spine Exam: Tenderness over the right cervical facet line, radiating into

the back of the head.

Lumbar Spine Exam: Reduced ROM in all planes. Pain with flexion. Positive

Fortin’s Finger sign. Positive straight leg raise, bilaterally. Positive Faber’s, causes

axial low back pain. Pain and tenderness over the bilateral greater trochanter.

Negative facet loading maneuvers.

Right Shoulder Exam: Positive empty cans test. Positive O’Brien’s. Positive

Neer’s. Positive Hawkins.

Right Knee Exam: Pain and tenderness over the right knee. Anterior drawer sign is

positive.

Tr. 532, 541.

The ALJ’s description of the examinations is potentially based on Dr. Cairns’ comments

regarding the lumbar spine portion of the examinations. However, Plaintiff correctly points out

that Dr. Cairns’ physical examinations did not reveal unremarkable results aside from reduced

range of motion in all planes, pain with flexion, and positive straight leg raising bilaterally. Thus,

to the extent the ALJ’s statement regarding physical examination findings was based on Dr.

Cairns’ examinations, it is wholly unclear how the ALJ reached her conclusion in light of all of

the other positive findings noted by Dr. Cairns that the ALJ omitted.

Moreover, Plaintiff also correctly points out that the ALJ evidently included citations to

exhibits from Dr. Cairns for statements that find no support in Dr. Cairns’ records. These

erroneous citations, combined with the ALJ’s erroneous statement that Dr. Cairns’ opinion (albeit

on an issue reserved to the Commissioner) post-dated Plaintiff’s DLI, further calls into question

whether the ALJ did in fact account for Dr. Cairns’ treatment in evaluating Plaintiff’s medical

condition. For instance, the ALJ cited Exhibit 10F in support of the following findings in the

ALJ’s decision:

- The claimant’s orthopedic surgeon observed that the claimant had normal range of motion

in both wrists and fine and gross motor skills at one visit in February 2020 and slight

swelling, some subtle thenar atrophy, and subjective decreased sensation to light touch with

normal range of motion at another appointment in February 2020.

- In March and April of 2020, he observed that the claimant had tenderness to palpitation

over the AC joint and the bicipital groove in the right shoulder.

Tr. 26. However, these findings appear to be based on records from Dr. Wells in Exhibit 8F, not

records from Dr. Cairns in Exhibit 10F. See Tr. 508, 512, 516.

Ultimately, it is evident that the ALJ erred here. Less clear is whether the ALJ’s error was

harmful or harmless. However, what is making it difficult to ascertain whether the ALJ’s error

was harmless is the ALJ’s erroneous citations and lack of clarity. To be clear, had the ALJ not

erred by stating that Dr. Cairns’ opinion was offered after the DLI, remand would not be warranted

solely based on her failure to discuss Dr. Cairns’ records and treatment of Plaintiff. Again, that is

because the ALJ is not required to specifically discuss every piece of evidence in the record. But

it is the ALJ’s own errors and lack of clarity that call into question whether the ALJ considered all

of the relevant evidence and Plaintiff’s medical condition as a whole. Therefore, remand is

appropriate to ensure that the proper legal analysis is conducted.

CONCLUSION

For the reasons discussed above, it is ORDERED and ADJUDGED that Plaintiff's

Motion [DE 10] is GRANTED and Defendant’s Motion [DE 15] is DENIED. The Court will

enter a separate Final Judgment reversing and remanding the final decision of the Commissioner.

DONE AND ORDERED in Fort Lauderdale, Florida this 19th day of October 2023.

ared M. Strauss

United States Magistrate Judge

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