Williams v. O'Malley

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 24-60400-CV-SINGHAL/TORRES

ANNA MARIA WILLIAMS,

Plaintiff,

v.

MARTIN O’MALLEY, Acting Commissioner

of the Social Security Administration,

Defendant.

__________________________________________/

1AMENDED REPORT AND RECOMMENDATION ON THE PARTIES’

CROSS-MOTIONS FOR SUMMARY JUDGMENT

This cause comes before the court on cross-motions for summary judgment filed

by Plaintiff, Anna Maria Williams (“Plaintiff” or “Ms. Williams”) [D.E. 11] and

Defendant, Martin O’Malley, Acting Commissioner of the Social Security

Administration (“Defendant” or “Commissioner”) [D.E. 15] on whether the

Administrative Law Judge (“ALJ”) properly weighed the evidence in reaching her

unfavorable decision. Under the limited standard of review governing this case, the

Court finds that the motions are ripe for disposition. For the reasons stated below,

we recommend that Plaintiff’s motion for summary judgment [D.E. 11] be

1 This Amended Report and Recommendation is substantively identical to the initial

Report and Recommendation [D.E. 22]; it only removes a misstated clause, found in

the first paragraph of the initial Report and Recommendation, that “substantial

evidence supports the ALJ's determinations.” [D.E. 22 at 1].

GRANTED, Defendant’s motion for summary judgment [D.E. 15] be DENIED, and

this case be REMANDED.2

I. BACKGROUND

On October 8, 2020, Plaintiff applied for a disability stemming back to August

2, 2020. The basis for Plaintiff’s claim was that, because of a slip and fall at work and

a subsequent car accident, Plaintiff suffered various impairments to her neck, lower

back, left shoulder, and her upper right extremity. After a hearing was held, the ALJ

found that Plaintiff had the following severe impairments: status post anterior

cervical discectomy with fusion; status post lumbar surgery; fifth digit tenosynovitis

of the right hand; status post arthroscopy; debridement of rotator cuff and labral tear;

and as to the right shoulder, a tear, strain, tendinitis, degenerative joint disease, and

a spur. [D.E. 10 at 23–24].

After considering these impairments, the ALJ made the following

determination as to Plaintiff’s residual functional capacity (“RFC”):

After careful consideration of the entire record, the undersigned finds

that the claimant has the residual functional capacity to perform light

work as defined in 20 CFR 404.1567(b) and 416.967(b) except she could

not lift/carry more than 10 pounds frequently. She could stand/walk and

sit for 6 hours in an 8-hour workday. She could occasionally climb ramps

or stairs, but she could never climb ladders, ropes, or scaffolds. She could

occasionally balance, stoop, kneel, crouch, or crawl. She could frequently

reach. She could frequently handle and finger with her right upper

extremity.

[Id. at 24]. Plaintiff appealed this unfavorable decision to the Appeals Council but

was denied review. Thus, the pending action followed.

2 On August 15, 2024, the Honorable Raag Singhal referred this matter to the

Undersigned Magistrate Judge for a Report and Recommendation. [D.E. 19].

Now, Plaintiff argues that a multitude of errors plague the ALJ’s opinion,

which are placed into two categories: (1) the ALJ failed to properly evaluate the

opinion evidence resulting in an RFC that was not based on substantial evidence; and

(2) the ALJ failed to properly evaluate Plaintiff’s subjective symptom testimony.

II. STANDARD OF REVIEW

Judicial review of an ALJ’s final decision is limited to an inquiry into whether

there is substantial evidence in the record to support the ALJ’s findings, and whether

the correct legal standards were applied. See 42 U.S.C. § 405(g); Richardson v.

Perales, 402 U.S. 389, 401 (1971); Kelley v. Apfel, 185 F.3d 1211, 1212 (11th Cir. 1999).

“Substantial evidence is more than a scintilla, but less than a preponderance. It is

such relevant evidence as a reasonable person would accept as adequate to support a

conclusion.” Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983) (citing

Richardson, 402 U.S. at 401); see also Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir.

1996)).

In testing for substantial evidence, a court is not to “reweigh the evidence” or

“decide the facts anew.” Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th

Cir. 2011) (citing another case). Instead, so long as an ALJ’s findings are supported

by substantial evidence, a court must defer to the ALJ’s decision even if the evidence

may preponderate against it. See Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155,

1158-59 (11th Cir. 2004); 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 fact findings.”); Miles, 84 F.3d at 1400;

42 U.S.C. § 405(g). However, no presumption of validity attaches to the

Commissioner’s conclusions of law. See Brown v. Sullivan, 921 F.2d 1233, 1236 (11th

Cir. 1991). A court also reviews an ALJ’s decision to determine whether the correct

legal standards were applied. See Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir.

1997). In this respect, “the ALJ has a basic obligation to develop a full and fair record,”

as a hearing before an ALJ is not an adversary proceeding. Id. (citing another source).

Ultimately, it is the function of the Commissioner to resolve conflicts in the

evidence and to assess the credibility of the witnesses. See Grant v. Richardson, 445

F.2d 656 (5th Cir. 1971). It is also the responsibility of the Commissioner to draw

inferences from the evidence, and those inferences cannot be overturned if they are

supported by substantial evidence. See Celebrezze v. O’Brient, 323 F.2d 989, 990 (5th

Cir. 1963). We cannot “decide the facts anew, reweigh the evidence, or substitute our

judgment for that of the [ALJ].” Schink v. Comm’r of Soc. Sec., 935 F.3d 1245, 1257

(11th Cir. 2019) (quoting Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001)).

Instead, while “scrutiniz[ing] the record as a whole,” we must determine if the ALJ’s

findings were reasonable, Bloodsworth, 703 F.2d at 1239, and if the proper legal

standards were applied, Lamb v. Bowen, 847 F.2d 698, 701 (11th Cir. 1988).

III. APPLICABLE LAW AND LEGAL PRINCIPLES

A disability is defined as the “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 is expected to last for

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

claimant bears the burden of producing evidence that proves he or she meets this

statutory definition. “The social security regulations establish a five-step evaluation

process, which is used to determine disability for both SSI and DIB claims” and

“[t]hese regulations place[] a very heavy burden on the claimant to demonstrate both

a qualifying disability and an inability to perform past relevant work.” Moore v.

Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005) (citing Spencer v. Heckler, 765 F.2d

1090, 1093 (11th Cir. 1985)).

An ALJ must first determine whether the claimant is presently employed. If

so, a finding of non-disability is made, and the inquiry ends. See 20 C.F.R. §

404.1520(b). In the second step, an ALJ must determine whether the claimant suffers

from a severe impairment or combination of impairments. If an ALJ does not make

such a finding, then the inquiry ends. See id. at § 404.1520(c). At step three, an ALJ

compares the claimant’s impairments with specific impairments under the

regulations that require a finding of disability without further inquiry into the

claimant’s ability to perform other work. See Gibson v. Heckler, 762 F.2d 1516, 1518

(11th Cir. 1985) (“Certain impairments are so severe either when considered alone or

in conjunction with other impairments that, if such impairments are proved, the

regulations require a finding of disability without further inquiry into the claimant’s

ability to work.”). If the claimant’s impairment meets or equals a listed impairment,

the claimant’s disability is presumed, and benefits are awarded. See 20 C.F.R. §

404.1520(d).

Step four involves a determination of whether the impairments prevent the

claimant from performing past relevant work. If the claimant cannot perform past

relevant work, then a prima facie case of disability is established. An ALJ assesses a

claimant’s RFC prior to this stage, based on the other relevant evidence, to determine

the extent of a claimant’s ability to work despite the alleged impairments. See id. at

§ 416.945(a)(1). A claimant’s RFC is an administrative finding of fact concerning the

claimant’s maximum remaining capacity to perform work-related physical and

mental activities on a regular and continuing basis despite the functional limitations

and environmental restrictions imposed by his or her medically determinable

impairment(s).

When making this finding, an ALJ is required to identify the limitations and/or

restrictions imposed by the claimant’s impairments and then assess his or her work-

related abilities on a function-by-function basis. Only upon the conclusion of this

function-by-function analysis may an ALJ express the claimant’s RFC in terms of the

exertional levels of work (i.e., sedentary, light, medium, heavy, and very heavy).

This leads to step five—the final inquiry—where the burden shifts to the

Commissioner to show that there is other work available in the national economy

that the claimant can perform based on the claimant’s RFC, work experience,

education, and age. See id. at § 404.1520(e)-(f).

IV. ANALYSIS

We will first address whether the ALJ properly evaluated the opinion evidence,

and particularly, the opinions of Dr. Frazer and Dr. Tome.

Plaintiff’s initial argument is that the ALJ had a duty to articulate her

consideration of Dr. Frazer’s and Dr. Tome’s opinions that Plaintiff should avoid “over

exertion in the form of pushing, pulling, lifting, stooping, reaching, bending,

prolonged standing, walking, and sitting.” [D.E. 10 at 517; 647]. Because the ALJ did

not at all address the opinions of Dr. Frazer and Dr. Tome in her unfavorable decision,

Plaintiff urges that the ALJ committed reversible error.

Defendant, meanwhile, apparently concedes that the ALJ did not mention the

opinions of Dr. Frazer and Dr. Tome. Defendant argues, however, that the ALJ was

under no duty to assess these opinions because they were not “medical opinions.”

Rather, in Defendant’s view, Dr. Frazer and Dr. Tome offered “merely a treatment

recommendation about how Plaintiff could treat her musculoskeletal symptoms.”

[D.E. 15 at 9]. Thus, Defendant argues that because these “recommendations” were

not “medical opinions” under 20 C.F.R. § 404.1513(a)(2), the ALJ was under no duty

to consider them.

We agree with Plaintiff that the ALJ committed reversible error in failing to

even mention, let alone adequately consider, the opinions of Dr. Frazer and Dr. Tome.

Under the current regulations, “[a] medical opinion is a statement from a medical

source about what you can still do despite your impairment(s) and whether you have

one or more impairment-related limitations or restrictions” as to certain physical

abilities. 20 C.F.R. § 404.1513(a)(2). Those physical abilities include a claimant’s

“ability to perform physical demands of work activities, such as sitting, standing,

walking, lifting, carrying, pushing, pulling or other physical functions ….”

§ 404.1513(a)(2)(i).

Here, Dr. Frazer’s and Dr. Tome’s opinions both state, after each had multiple

visits with Plaintiff, that Plaintiff should avoid “over exertion when pushing, pulling,

lifting, stooping, reaching, bending, prolonged standing, walking, and sitting.” [D.E.

10 at 517; 647]. These findings squarely fit within the purview of the regulations’

definition of a “medical opinion”; that is, the opinions are “statement[s] from a

medical source about … whether [Plaintiff has] one or more impairment-related

limitations or restrictions” as to “sitting, standing, walking, lifting, carrying, pushing,

pulling, or other physical functions.” § 404.1513(a)(2)(i).

Moreover, Defendant provides the Court with not an iota of authority to

support that these opinions are “treatment recommendations” as opposed to medical

opinions. Thus, we agree with Plaintiff that the opinions of Dr. Frazer and Dr. Tome

were medical opinions as defined by the regulations, and consequently, that the ALJ

erred in failing to consider those medical opinions. See Dempsey v. Comm'r of Soc.

Sec., 454 F. App'x 729, 733 (11th Cir. 2011) (“The ALJ erred when he failed to

mention, much less consider, Dr. Janush's opinion of Dempsey's ability to

concentrate. … Without a clear explanation of the ALJ's treatment of Dr. Janush's

opinion, we cannot determine whether the ALJ's ultimate decision on the merits was

rational and supported by substantial evidence.”); Bailey v. Comm'r of Soc. Sec., 802

F. App'x 462, 465 (11th Cir. 2020) (remanding in favor of the claimant because “[h]ere,

where the ALJ made no mention of Dr. Garewal's opinion that [the claimant] was

unable to work and failed to specify the weight given to that opinion, we cannot

‘determine whether the ultimate decision on the merits of the claim is rational and

supported by substantial evidence’”); Lawton v. Comm'r of Soc. Sec., 431 F. App'x 830,

834 (11th Cir. 2011) (remanding where the ALJ failed to adequately consider two

“doctors' opinions [that were] contrary to the ALJ's residual functional capacity

assessment,” because “[w]ithout an explanation of the weight accorded by the ALJ, it

is impossible for a reviewing court to determine whether the ultimate decision on the

merits of the claim is rational and supported by substantial evidence”); Brioso v.

Kijakazi, No. 22-CV-21991-JEM, 2023 WL 5595912, at *8 (S.D. Fla. Aug. 11, 2023),

report and recommendation adopted, 2023 WL 5563394 (S.D. Fla. Aug. 29, 2023)

(quoting Brown v. Comm'r of Soc. Sec., No. 6:20-cv-840-GJK, 2021 WL 2917562, at

*4 (M.D. Fla. July 12, 2021)) (finding that the ALJ erred in failing to adequately

analyze a medical opinion because the “‘[t]he new regulations require an ALJ to

articulate the persuasiveness of all medical opinions in the case record’ and ‘assess

their persuasiveness, and explain his decision, particularly with respect to

supportability and consistency’”); Aleman v. Saul, No. 18-25173-CIV, 2019 WL

11506014, at *1 (S.D. Fla. Dec. 2, 2019) (remanding the ALJ’s decision because, in

part, the ALJ “completely disregard[ed] the opinions of” several medical

professionals); Holsey on behalf of AES v. Comm'r of Soc. Sec., No. 3:14-CV-938-J-

PDB, 2015 WL 12843870, at *2 (M.D. Fla. Sept. 28, 2015) (citing 20 C.F.R. §

416.920(a)(3)) (“Because the ALJ failed to discuss or even consider Dr. Gentry's

opinions, the Court cannot affirm simply because substantial evidence might support

rejecting them. The ALJ was obligated to consider the opinions but failed to do so.

That failure requires reversal and remand.”).

Additionally, we cannot say that the error was harmless. It is at least possible

that consideration of these medical opinions would have persuaded the ALJ that

greater limitations as to Plaintiff’s RFC were appropriate. See Dempsey, 454 F. App'x

at 733 (quoting Owens v. Heckler, 748 F.2d 1511, 1514–16, 1516 (11th Cir. 1984))

(rejecting the Commissioner’s harmless error argument after the ALJ failed to

properly consider a medical opinion, because “[w]e cannot affirm based on a post hoc

rationale that ‘might have supported the ALJ's conclusion’”).

Accordingly, we recommend that the decision of the ALJ be remanded for the

ALJ to properly consider the medical opinions of Dr. Frazer and Dr. Tome and

determine the proper weight to be afforded to those medical opinions. See id. at 732,

n.5 (“Thus, rather than accept the ignored treating doctor's opinion as true and

remand for the award of benefits, we remand to the agency to determine in the first

instance the proper weight to be afforded the treating doctor's opinion.”). And from

that finding, the ALJ must address whether Plaintiff’s RFC must be revisited.

We decline to reach the remainder of Plaintiff’s arguments. Each of the

arguments consists of whether the ALJ adequately considered individual pieces of

evidence against the whole of the record. Specifically, Plaintiff argues that the ALJ

failed to adequately consider the opinion of Dr. Kroll and the state agency reviewers,

as well as Plaintiff’s subjective complaints. But upon remand, the ALJ’s analysis will

be revised and supplemented to include the medical opinions of Dr. Frazer and Dr.

Tome. Thus, because, there will be a new record against which the ALJ will consider

the opinion of Dr. Krost, the state agency reviewers, and Plaintiff’s subjective

complaints, the Court should abstain from addressing these arguments, as that

evidence was evaluated in the confines of an incomplete record.

V. CONCLUSION

The ALJ failed to consider the medical opinions of Dr. Frazer and Dr. Tome,

and in doing so committed reversible error. Thus, we recommend that Plaintiff’s

motion for remand [D.E. 11] be GRANTED, Defendant’s motion [D.E. 15] be

DENIED, and the ALJ’s unfavorable decision be REVERSED and REMANDED to

the Commissioner for further proceedings.

Pursuant to Local Magistrate Rule 4(b) and Fed. R. Civ. P. 73, the Court finds

good cause to expedite objections. Accordingly, the parties have one (1) day from

service of this Report and Recommendation within which to file written objections, if

any, with the District Judge. Failure to timely file objections shall bar the parties

from de novo determination by the District Judge of any factual or legal issue covered

in the Report and shall bar the parties from challenging on appeal the District

Judge’s Order based on any unobjected-to factual or legal conclusions included in the

Report. 28 U.S.C. § 636(b)(1); 11th Cir. Rule 3-1; see, e.g., Patton v. Rowell, 2017 WL

443634 (11th Cir. Feb. 2, 2017); Cooley v. Comm’r of Soc. Sec., 2016 WL 7321208 (11th

Cir. Dec. 16, 2016).

DONE and SUBMITTED in Chambers in Miami, Florida 11th day of

September, 2024.

/s/ Edwin G. Torres

EDWIN G. TORRES

United States Magistrate Judge