Andersen v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

JORDAN JOEL ANDERSEN,

Plaintiff,

v. Case No. 8:23-cv-01567-AEP

MARTIN O’MALLEY,

Commissioner of Social Security,1

Defendant.

/

ORDER

Plaintiff seeks judicial review of the denial of his claim for a period of

disability, disability insurance benefits (“DIB”), and Supplemental Security Income

(“SSI”). As the Administrative Law Judge’s (“ALJ”) decision was not based on

substantial evidence and failed to employ proper legal standards, the

Commissioner’s decision is reversed and remanded.

I.

A. Procedural Background

Plaintiff filed an application for a period of disability, DIB, and SSI. (Tr. 97).

The Social Security Administration (“SSA”) denied Plaintiff’s claims both initially

and upon reconsideration. (Tr. 97-135). Plaintiff then requested an administrative

1 Martin O’Malley is now the Commissioner of Social Security. Pursuant to Rule 25(d) of

the Federal Rules of Civil Procedure, Commissioner Martin O’Malley should be

substituted for Acting Commissioner Kilolo Kijakazi as the defendant in this matter. No

further action needs to be taken to continue this matter by reason of the last sentence of

hearing. (Tr. 163). Per Plaintiff’s request, the ALJ held a hearing at which Plaintiff

appeared and testified. (Tr. 38–61). Following the hearing, the ALJ issued an

unfavorable decision finding Plaintiff not disabled and accordingly denied

Plaintiff’s claims for benefits. (Tr. 15–29). Subsequently, Plaintiff requested review

from the Appeals Council which the Appeals Council denied. (Tr. 4–6). Plaintiff

then timely filed a complaint with this Court who ultimately remanded the matter,

finding that the ALJ did not properly address Plaintiff’s treating psychiatrist’s

opinion. (Doc. 596–608). Following this Court’s remand, a second hearing was held

before a new ALJ who again found Plaintiff not disabled and denied Plaintiff’s

claim for benefits. (Tr. 531–570). Following the ALJ’s decision, Plaintiff directly

appealed the matter to this Court. The case is now ripe for review under 42 U.S.C.

§§ 405(g), 1383(c)(3).

B. Factual Background and the ALJ’s Decision

Plaintiff, who was born in 1983, claimed disability beginning July 24, 2019.2

(Tr. 98). Plaintiff obtained a high school education and completed two years of

college. (Tr. 108, 540). Plaintiff has minimal work experience as a car attendant,

cashier, customer service representative, and greeter but has never held employment

long enough to qualify as substantial gainful activity. (Tr. 108, 558, 566). Plaintiff

alleged disability due to problems with his neck and back, a herniated disc, anxiety

disorder, panic disorder, PTSD, bipolar disorder, ADHD, and insomnia. (Tr. 98).

2 At the second hearing before an ALJ, Plaintiff amended his alleged onset date from

In rendering the administrative decision, the ALJ concluded that Plaintiff

had not engaged in substantial gainful activity since July 25, 2019. (Tr. 536). After

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

Plaintiff had the following severe impairments: pre-existing lumbar spine

degenerative disc disease, bipolar schizoaffective disorder with depression, anxiety

disorder, attention deficit hyperactivity disorder (ADHD), and panic disorder (20

CFR 416.920(c). (Tr. 537). Notwithstanding the noted impairments, the ALJ

determined 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. 537). The ALJ then concluded that Plaintiff retained a

residual functional capacity (“RFC”) to perform:

light work as defined in 20 CFR 416.967(b) with the following

additional limitations: the claimant can lift 20 pounds occasionally

and 10 pounds frequently; stand/walk 6 hours per day; sit 6 hours per

day; never climb ladder/rope/scaffold; occasionally climb

ramp/stairs, balance, stoop, kneel, crouch, crawl; must avoid

vibration, hazardous machinery and heights; can understand,

remember, and carry out routine and repetitive instructions and tasks;

can manage or deal with occasional changes in routine work settings

or duties; cannot perform work requiring a specific production rate or

pace, such as assembly lines; can have occasional interaction with the

public, coworkers, and supervisors; can maintain attention and

concentration for 2 hours at a time, but does require the standard

morning, lunch, and afternoon breaks.

(Tr. 540). 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 his symptoms were not entirely consistent with the medical evidence and

other evidence. (Tr. 540).

Pursuant to 20 CFR 416.965, the ALJ found Plaintiff to have no past relevant

work experience. (Tr. 545). However, 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 a photocopying machine expert, packer, and mail

clerk. (Tr. 546). Accordingly, based on Plaintiff’s age, education, work experience,

RFC, and the testimony of the VE, the ALJ found Plaintiff not disabled. (Tr. 547).

II.

To be entitled to benefits, a claimant must be disabled, meaning he or she

must be unable 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. §§ 423(d)(1)(A), 1382c(a)(3)(A). A

“physical or mental impairment” is an impairment that results from anatomical,

physiological, or psychological abnormalities, which are demonstrable by medically

acceptable clinical and laboratory diagnostic techniques. 42 U.S.C. §§ 423(d)(3),

1382c(a)(3)(D).

To regularize the adjudicative process, the SSA 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. §§ 404.1520,

416.920. If an individual is found disabled at any point in the sequential review,

further inquiry is unnecessary. 20 C.F.R. §§ 404.1520(a), 416.920(a). Under this

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

is currently engaged in substantial gainful activity; whether the claimant has a severe

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

functions; whether the severe impairment meets or equals the medical criteria of 20

C.F.R. Part 404 Subpart P, Appendix 1; and whether the claimant can perform his

or her past relevant work. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). 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 his or her age, education, and work experience. 20 C.F.R. §§

404.1520(a)(4)(v), 416.920(a)(4)(v). 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. §§

404.1520(g)(1), 416.920(g)(1).

The ALJ, in part, decides Plaintiff’s claim pursuant to regulations designed

to incorporate vocational factors into the consideration of disability claims. See 20

C.F.R. §§ 404.1501, et seq. These regulations apply in cases where an individual’s

medical condition is severe enough to prevent him from returning to his former

employment but may not be severe enough to prevent him from engaging in other

substantial gainful activity. In such cases, the Regulations direct that an individual’s

residual functional capacity, age, education, and work experience be considered in

determining whether the claimant is disabled. These factors are codified in tables of

rules that are appended to the regulations and are commonly referred to as “the

grids.” 20 C.F.R. Part 404, Subpart P, App. 2. If an individual’s situation coincides

with the criteria listed in a rule, that rule directs a conclusion as to whether the

individual is disabled. 20 C.F.R. §§ 404.1569, 416.969. If an individual’s situation

varies from the criteria listed in a rule, the rule is not conclusive as to an individual’s

disability but is advisory only. 20 C.F.R. §§ 404.1569a, 416.969a.

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), 1383(c)(3). “Substantial evidence is more

than a scintilla and is such relevant evidence as a reasonable person would accept

as adequate to support a conclusion.” Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176,

1178 (11th Cir. 2011) (citation and internal quotation marks omitted). While the

court reviews the Commissioner’s decision with deference to the factual findings,

no such deference is given to the legal conclusions. Ingram v. Comm’r of Soc. Sec., 496

F.3d 1253, 1260 (11th Cir. 2007) (citations omitted).

In reviewing the Commissioner’s decision, the court may not reweigh 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. Winschel, 631 F.3d at 1178

(citations omitted); 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. Ingram, 496 F.3d at 1260 (citation omitted). 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)

(per curiam) (citations omitted).

III.

Plaintiff argues that the ALJ failed to properly evaluate the medical opinion

of Plaintiff’s treating psychiatrist, Dr. John Pierson. For the following reasons, the

ALJ failed to apply the correct legal standards, and the ALJ’s decision is not

supported by substantial evidence.

A. Assessing Medical Opinions

Social Security Ruling (SSR) 96-8p,3 which regulates the ALJ’s assessment

of a claimant’s RFC, provides that an ALJ’s RFC assessment must “consider and

address medical source opinions. If the RFC assessment conflicts with an opinion

from a medical source, the adjudicator must explain why the opinion was not

adopted.” SSR 96-8p, 1996 WL 374184, at *7 (July 2, 1996). Under the new Social

Security Administration (SSA) regulations implemented as of March 27, 2017, the

ALJ “will 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 [claimant’s own] medical sources.” 20 C.F.R. § 416.920c(a).

Instead, the ALJ must evaluate each medical opinion with consideration of the

following five factors: (1) supportability; (2) consistency; (3) relationship with the

3 SSRs are agency rulings published under the Commissioner’s authority and are binding

on all components of the SSA. Sullivan v. Zebley, 493 U.S. 521, 531 n.9 (1990). They are

claimant; (4) specialization; and (5) “other factors that tend to support or contradict

a medical opinion or prior administrative medical finding.” 20 C.F.R. § 416.920c(c).

The ALJ is specifically required to consider the factors of supportability and

consistency for each medical opinion. 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. §

404.1520c(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. § 404.1520c(c)(2). Put simply, in determining the persuasiveness of

a medical opinion, an ALJ must consider whether the opinion is 1) supported by

the source’s own medical records and 2) consistent with the record as a whole.

Although it is unnecessary to refer to every piece of evidence, the ALJ must consider

all evidence and articulate the weight given to probative evidence. Id.; Cowart v.

Schweiker, 662 F.2d 731, 735 (11th Cir. 1981). Moreover, despite the substantive

changes in the regulations, the current versions “still instruct[ ] an ALJ to weigh all

medical opinions in light of the length, purpose and extent of the treatment

relationship and frequency of examinations which continues to ‘indicate the

importance of treating physicians’ opinions – especially where the physician has

maintained a longstanding and consistent relationship with the claimant’.” Brown

v. Comm'r of Soc. Sec., No. 6:20-cv-840-GJK, 2021 WL 2917562, at *3 (M.D. Fla.

July 12, 2021) (quoting Simon v. Comm'r of Soc. Sec., 1 F.4th 908, 912 n.4 (11th Cir.

2021)).

B. Dr. Pierson’s Treatment and Opinion

Plaintiff began seeing Dr. Pierson in December 2016 for ongoing mental

health issues. (Tr. 525). Dr. Pierson diagnosed Plaintiff with opioid dependence,

mood disorder, and Agoraphobia and prescribed him Serequel, Remeron,

Klonopin, Adderall, and Subutex. (Tr. 526). Plaintiff then began seeing Dr. Pierson

on a monthly basis through the end of 2017 to help quell his opioid dependence and

mood swings. (Tr. 512). In January 2018, Plaintiff expressed to Dr. Pierson that he

was experiencing auditory hallucinations and impaired reality testing for which Dr.

Pierson subsequently prescribed Plaintiff Risperdal. (Tr. 511). Plaintiff then began

seeing Dr. Pierson bi-monthly primarily for his problems with reality testing and

depressed mood though which continued throughout 2019. (Tr. 497–509). On

August 21, 2019, Dr. Pierson filled out a Physical Assessment of Plaintiff’s

functioning and a Mental Capacity Form. On the Physical Assessment, Dr. Pierson

noted his diagnoses of Plaintiff as “Schizoaffective Disorder, Depressed” and

opined that Plaintiff would likely be sent from work three or four times a month as

a result of his impairments. (Tr. 439). Similarly, in the Mental Capacity Form, Dr.

Pierson opined that Plaintiff had a “marked” (i.e., substantial) limitation in his

ability to sustain an ordinary routine and attendance at work. (Tr. 441).

Throughout the remainder of 2019 into 2020 Dr. Pierson’s treatment of

Plaintiff primarily focused on Plaintiff’s opioid dependence, mood changes,

anxiety, and attention problems. (Tr. 490–96). During this time, Plaintiff reported

improvement in his symptoms and was noted to be living with his mother and

attending college. (Tr. 502). However, on July 12, 2020, Plaintiff was Baker Acted

by the Clearwater Police Department after being found wandering a neighborhood

speaking into his keys like a phone and attempting to enter at least six houses he

believed belonged to his friends. (Tr. 471). Plaintiff was admitted to Personal

Enrichment Mental Health Services (PEMHS) and diagnosed with adjustment

disorder with mixed disturbance of emotion and conduct, and opiate use disorder.

(Tr. 455). He was discharged two days later and urged to follow up with Dr. Pierson.

(Tr. 478–82). On August 20, 2020, Plaintiff did so and reported again hearing voices

for which Trilafon was prescribed. (Tr. 494). Plaintiff continued to see Dr. Pierson

until his retirement in 2021 at which point he began seeing Shane Lynne APRN at

S&D Behavior Health LLC for anxiety, depression, ADHD, sleep problems, panic

attacks, night terrors, schizoaffective disorder, bipolar disorder, and severe back

pain/addiction. (Tr. 777). APRN Lynne initially saw Plaintiff in March 2021 and

diagnosed him with ADHD, PTSD, generalized anxiety disorder, schizoaffective

disorder, and bipolar affect disorder. (Tr. 770–71). Plaintiff returned for a follow up

evaluation in April 2021. APRN Lynne renewed Plaintiff’s medications which

included Subutex 8mg, Adderall 20mg, Clonazepam 1mg, and Cogentin 2mg. (Tr.

763). In the medical record, APRN Lynne noted that Plaintiff was in music school,

and APRN Lynne needed to send a letter to Plaintiff’s school regarding his

diagnoses and treatment. (Tr. 763). Based on the evidence in the record, on April

15, 2021, APRN Lynne sent said letter informing the administration that Plaintiff

had been dealing with mental health issues which were affecting his ability to

complete daily tasks such as work and school. Specifically, Plaintiff was said to be

experiencing “depression, severe panic attacks, difficulty remembering tasks,

difficulty concentrating and getting tasks done.” (Tr. 766). In July 2021, Plaintiff

returned for his scheduled follow up appointment where he reported having manic

episodes. (Tr. 762). Following this appointment, APRN Lynne provided an updated

letter to Plaintiff’s school. (Tr. 765). On September 8, 2021, APRN Lynne wrote a

second letter to Plaintiff’s school where he reported that Plaintiff’s schizoaffective

disorder, anxiety, and PTSD had become a bigger disruption to his daily life and

commitments. (Tr. 764). In Plaintiff’s October 2021 evaluation, APRN Lynne

found that Plaintiff was “doing well.” (Tr. 760). In March 2022, APRN Lynne

noted conflicting reports, finding that Plaintiff was doing “pretty good” but also

noting that his schizophrenia and bipolar disorder had been “acting up” since they

last talked. (Tr. 758). On March 24, 2022, APRN Lynne reiterated these findings in

a letter to Plaintiff’s school. (Tr. 755). On June 6, 2022, Plaintiff had a follow up

appointment where APRN Lynne noted that Plaintiff was “doing well.” (Tr. 756).

However, a few weeks later, on July 15, 2022, APRN Lynne authored another letter

in which he noted having a medical consultation with Plaintiff on July 12, earlier

than Plaintiff’s scheduled follow-up appointment, as Plaintiff was suddenly

experiencing an onset of exacerbated symptoms resulting from his anxiety disorder

and PTSD. (Tr. 757). APRN Lynne also noted that Plaintiff was “experiencing

increased symptomology due to his schizoaffective disorder” and recommended

that Plaintiff “would benefit from academic accommodations for students with

psychiatric disabilities.” (Tr. 757). In September 2022, APRN reported that Plaintiff

was “better now” and doing “good in school.” (Tr. 754). Following Plaintiff’s

October 2022 appointment, however, APRN Lynne reported that Plaintiff was

again “hearing voices” and having difficulty concentrating. (Tr. 753). APRN Lynne

noted that he would be making medication adjustments and sending a letter to

Plaintiff’s school. (Tr. 753). On October 12, 2022, APRN Lynne authored said letter

again noting that Plaintiff was experiencing an “onset of exacerbated symptoms

resulting from his anxiety disorder and PTSD” and “increased symptomology due

to his schizoaffective disorder” and recommended that Plaintiff “would likely

benefit from academic accommodations for students with psychiatric disabilities.”

(Tr. 752). Plaintiff’s last documented appointment with APRN Lynne occurred in

November 2022. At that time, APRN Lynne reported that overall Plaintiff was

“doing well” and that the prescription Vraylar appeared to be helping with

Plaintiff’s symptoms. APRN Lynne also noted that he needed to edit a letter to

Plaintiff’s school. On December 14, 2022, APRN Lynne wrote a letter advising that

due to Plaintiff’s current psychiatric condition, in APRN Lynne’s professional

opinion, Plaintiff should medically withdraw from courses taken during that past

school year as Plaintiff “was and is continuing treatment with medication

adjustments for the above listed diagnoses and could not complete the semester at

St. Petersburg College as intended.” (Tr. 742).

Plaintiff’s sole argument on appeal is that the ALJ failed to support his

disregard for portions of Dr. Pierson’s opinion with substantial evidence. On

August 21, 2019, Dr. Pierson completed a mental medical source statement in

which he indicated Plaintiff experienced a moderate degree of mental health

limitations in the areas of concentration, persistence, or maintaining pace; adapting

or managing oneself; and interacting with others. (Tr. 442). The ALJ agreed with

these assessments and incorporated them into his RFC analysis. (Tr. 537–545).

However, the ALJ found unpersuasive Dr. Pierson’s assessment that Plaintiff

experienced a marked limitation in his ability to sustain ordinary and regular

attendance at work and would experience 3–4 unplanned absences from work each

month. (Tr. 545, 439). The ALJ disagreed with this finding solely because “some of

the most recent treatment notes describe [Plaintiff] consistently attending follow up

appointments with his treatment provider” (Tr. 545 (citing Ex. 9F)). The treatment

notes referenced by the ALJ were Plaintiff’s medical records from Shane Lynne,

APRN. To the ALJ, Plaintiff’s consistent appearance at follow up appointments

with APRN Lynne suggested that Plaintiff did not suffer from a marked degree of

limitation in his ability to sustain an ordinary and regular attendance at work. (Tr.

545).

C. Failure to Support with Substantial Evidence

The Eleventh Circuit has firmly recognized that “[m]any mental disorders—

and bipolar disorder in particular—are characterized by the unpredictable

fluctuation of their symptoms, and thus it is not surprising that even a highly

unstable patient will have good days or possibly good months.” Simon v. Comm'r,

Soc. Sec. Admin., 7 F.4th 1094, 1106 (11th Cir. 2021). Thus, “an ALJ who relies on

such snapshots to discredit the remainder of a psychiatrist's findings demonstrates a

‘fundamental, but regrettably all-too-common, misunderstanding of mental

illness.’” Id. (quoting Punzio v. Astrue, 630 F.3d 704, 710 (7th Cir. 2011)).

In Simon,4 the plaintiff’s treating psychologist, Dr. Turner, diagnosed the

plaintiff with bipolar disorder, severe anxiety, and panic attacks and opined that the

plaintiff had a marked limitation in his ability to preform simple tasks on a full-time

basis, preform work requiring regular contact with others, and respond

appropriately to the stress of customer work pressures. Id. at 1099. Dr. Turner’s

treatment notes in connection with these opinions were extensive – spanning across

four years with over thirty meetings during which time Dr. Turner regularly noted

that the plaintiff was displaying severe signs of mental illness to include frequent

4 Simon addresses an ALJ's rejection of a treating physician's opinion in a social security

claim filed before March 27, 2017, when the ALJ was required to give a treating physician's

opinion “substantial or considerable weight unless there is good cause to discount [it].” 20

C.F.R. § 404.1527; Simon, 7 F. 4th at 1004. Even though the standard for considering

medical opinions has since changed, the analysis presented in Simon regarding the

unpredictability of mental disorders and the distinguishment of attending medical

appointments from participating in a work environment remains valid and applicable.

panic attacks, racing thoughts, mood swings, and paranoia. Id. at 1105. However,

the ALJ chose to give little weight to Dr. Turner’s opinions, finding they were

inconsistent with Dr. Turner’s own notes, Plaintiff’s personal testimony he was able

to complete daily tasks, and evaluations with SSA consultants who found Plaintiff

to be communicative and display good cognitive function during their evaluations.

On appeal, however, the Eleventh Circuit rejected the notion that the ALJ’s analysis

was supported by substantial evidence.

As is instructive here, the Court held that when evaluating a claimant’s

medical records, “an ALJ must take into account the fundamental differences

between the relaxed, controlled setting of a medical clinic and the more stressful

environment of a workplace . . . [as] it is not inconsistent—or even that unlikely—

that a patient with a highly disruptive mood disorder, in a structured one-on-one

conversation with a mental-health professional, might be capable of ‘be[ing]

redirected’ from his ‘tangential’ thought processes so as to ‘remain on topic’.” Id. at

1107 (internal quotations omitted). Inconsequential to the Court was the plaintiff’s

ability to “communicate, maintain eye contact, and follow simple instructions

during a mental-health evaluation” as these functions “d[id] not have any obvious

bearing on his mood swings, his panic attacks, his outbursts of anger, or his fear of

leaving his home.” Id. at 1108.

Here, the ALJ’s disregard for Dr. Pierson’s opinion as to Plaintiff’s ability to

sustain ordinary and regular attendance at work was based entirely on the fact that

Plaintiff had been consistently attending follow up appointments with APRN

Lynne. (Tr. 545). In fact, the ALJ provided even less of an analysis than that

presented in Simon as the ALJ declined to even comment on how Plaintiff presented

at these appointments. To the ALJ, the mere fact that Plaintiff attended these

appointments was a sufficient basis for discrediting Dr. Pierson’s opinion. This

conclusion is not supported by APRN Lynne’s notes or consistent with the record

as a whole. APRN Lynne’s notes frequently reflect that though Plaintiff continued

to attend appointments, Plaintiff’s condition was and is variable. Though APRN

Lynne found Plaintiff to be “doing well” and feeling “pretty good” at certain points,

APRN Lynne also frequently noted that Plaintiff consistently struggled with

“hearing voices,” suffered from frequent flare ups in his schizophrenic symptoms,

and consistently required medication adjustments. (Tr. 741–783). To this point, the

final record from APRN Lynne reflects a recommendation that Plaintiff be

permitted to medically withdraw from his college courses due to continuing

treatment with medication adjustments for Plaintiff’s diagnosed medical conditions.

(Tr. 742).

Notably, though the ALJ relied on APRN Lynne’s notes to establish

Plaintiff’s ability to sustain regular work attendance, he curiously disregarded all

statements by APRN Lynne in the letters he authored on the basis they contained

only “vague and general assertions.” (Tr. 545). While these letters do not rise to the

standard of formal medical opinions, they were clearly written in conjunction with

Plaintiff’s ongoing evaluations by APRN Lynne and spoke to the variability of

Plaintiff’s condition and his difficulties participating in a scheduled, structured

environment. The ALJ’s complete disregard for such records without further

explanation constitutes impermissible cherry picking. Compare Bevis v. Comm'r of Soc.

Sec., 552 F. Supp. 3d 1266 (M.D. Fla. 2021) (holding that the ALJ’s rejection of

plaintiff’s treating psychologist’s medical opinion was not supported by substantial

evidence where the ALJ relied on isolated entries in treatment notes indicating

plaintiff was alert and responsive to reject the opinion), with Vergara v. Commr. of

Soc. Sec., No. 22-11671, 2023 WL 5814433 (11th Cir. Sept. 8, 2023) (upholding

ALJ’s rejection of treating psychologist’s opinion where the ALJ fully described

how the treating psychologist’s opinion conflicted with record evidence to include:

“(1) the different opinions of two state agency psychological consultants; (2) the

kind and intensity of treatment [claimant] had received; (3) evidence that

[claimant’s] condition improved with consistent treatment and recommended

psychotherapy; (4) [claimant’s] mental status examinations; (5) [claimant’s]

reported activities of daily living; and (6) a third-party function report completed by

[claimant’s] brother.”).

In contrast, the Commissioner argues that the treatment records of both

APRN Lynne and Dr. Pierson fail to support a finding that Plaintiff suffers a marked

degree of limitation in his ability to sustain an ordinary and regular attendance at

work. In support thereof, the Commissioner cites to portions of APRN Lynne’s

records where Plaintiff’s condition was afforded positive attributes such as “doing

well,” feeling “pretty good,” and remaining “stable.” (Doc. 18, at 10). The

Commissioner also cites to Dr. Pierson’s notes indicating that Plaintiff was

employed at a car wash and enrolled in college when Dr. Pierson submitted his

medical source statement. (Doc. 18, at 12). The Commissioner further argues that

throughout the course of Plaintiff’s treatment with Dr. Pierson, Plaintiff was found

to be productive on medication, even recording some music, achieved normal

mental status examinations, and was able to undergo routine management of his

mental impairments with medication refills. (Doc. 18, at 12). However, the ALJ

made no mention of such evidence when discrediting Dr. Pierson’s opinion as to

Plaintiff’s ability to sustain and ordinary and regular attendance at work. Thus, it

appears that the Commissioner is making a post hoc argument, not addressed by

the ALJ in his decision. Therefore, the Court cannot address this point here. See

Dempsey v. Comm'r of Soc. Sec., 454 F. App'x 729, 733 (11th Cir. 2011) (“[When the

ALJ fails to state ‘with sufficient clarity’ the grounds for his evidentiary decisions,

we will not affirm ‘simply because some rationale might have supported the ALJ's

conclusion,’ and instead remand ‘for further findings at the administrative hearing

level’.”) (quoting Owens v. Heckler, 748 F.2d 1511, 1516 (11th Cir. 1984)). Thus, the

Court finds that the ALJ failed to support his disregard for portions of Dr. Pierson’s

opinion with substantial evidence.

IV.

Accordingly, after consideration, it is hereby

ORDERED:

1. The decision of the Commissioner is REVERSED and REMANDED.

2. The Clerk is directed to enter final judgment in favor of Plaintiff and close

the case.

DONE AND ORDERED in Tampa, Florida, on this 19th day of September,

2024

p= J

i / / pa

/ (20)

ANTHONY E. PORCELLI

United Sfates Magistrate Judge

cc: Counsel of Record