United States District Court, M.D. Florida, Jacksonville Division
EVA L. KING, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
OPINION AND ORDER 
R. KLINDT United States Magistrate Judge.
King (“Plaintiff”) is appealing the Commissioner
of the Social Security Administration's
(“SSA('s)”) final decision denying her claims
for supplemental security benefits (“SSI”).
Plaintiff's alleged inability to work is a result of a
“bulging disc in [her] back, ” rheumatoid
arthritis, agoraphobia, anxiety, and depression. Transcript
of Administrative Proceedings (Doc. No. 12; “Tr.”
or “administrative transcript”), filed February
6, 2017, at 58, 76, 203 (emphasis omitted). On May 7, 2013,
Plaintiff filed an application for SSI, alleging an onset
disability date of June 1, 2007. Tr. at 160. Plaintiff's
application was denied initially, see Tr. at 58-73,
75, and was denied upon reconsideration, see Tr. at
14, 2015, an Administrative Law Judge (“ALJ”)
held a hearing, during which he heard from Plaintiff, who was
represented by counsel, and a vocational expert
(“VE”). Tr. at 38-57. At the time of the hearing,
Plaintiff was forty-five years old. See Tr. at 42.
The ALJ issued a Decision on May 27, 2015, finding Plaintiff
not disabled since April 22, 2013, the date the SSI
application was filed. Tr. at 19-32.
Appeals Council then received additional evidence in the form
of a brief from Plaintiff's counsel. Tr. at 4, 5;
see Tr. at 265-66 (brief). On September 26, 2016,
the Appeals Council denied Plaintiff's request for
review, Tr. at 1-4, thereby making the ALJ's Decision the
final decision of the Commissioner. On November 23, 2016,
Plaintiff commenced this action under 42 U.S.C. §
405(g), as incorporated by § 1383(c)(3), by timely
filing a Complaint (Doc. No. 1), seeking judicial review of
the Commissioner's final decision.
appeal, Plaintiff makes two arguments: 1) “the ALJ
erred in finding that [Plaintiff's] mental impairments do
not meet . . . Listing [12.05]”; and 2) “the ALJ
erred in excluding limitations from [Plaintiff's residual
functional capacity (‘RFC')].”
Plaintiff's Memorandum of Law (Doc. No. 17;
“Pl.'s Mem.”), filed April 10, 2017, at 11,
20 (emphasis and some capitalization omitted). On June 9,
2017, Defendant filed a Memorandum in Support of the
Commissioner's Decision (Doc. No. 18; “Def.'s
Mem.”) addressing Plaintiff's arguments. A f t e r
a thorough review of the entire record and consideration of
the parties' respective filings, the undersigned finds
the Commissioner's final decision is due to be reversed
and remanded for further administrative proceedings.
The ALJ's Decision
determining whether an individual is disabled,  an ALJ must
follow the five-step sequential inquiry set forth in the Code
of Federal Regulations (“Regulations”),
determining as appropriate whether the claimant (1) is
currently employed or engaging in substantial gainful
activity; (2) has a severe impairment; (3) has an impairment
or combination of impairments that meets or medically equals
one listed in the Regulations; (4) can perform past relevant
work; and (5) retains the ability to perform any work in the
national economy. 20 C.F.R. §§ 404.1520, 416.920;
see also Phillips v. Barnhart, 357 F.3d 1232, 1237
(11th Cir. 2004). The claimant bears the burden of persuasion
through step four and, at step five, the burden shifts to the
Commissioner. Bowen v. Yuckert, 482 U.S. 137, 146
the ALJ followed the five-step sequential inquiry.
See Tr. at 21-31. At step one, the ALJ determined
that Plaintiff “has not engaged in substantial gainful
activity since April 22, 2013, the application date.”
Tr. at 21 (emphasis and citation omitted). At step two, the
ALJ found that Plaintiff “has the following severe
impairments: disorder of the spine; rheumatoid arthritis;
anxiety-related disorder; affective mood disorder; borderline
IQ; and a learning disorder.” Tr. at 21 (emphasis and
citation omitted). At step three, the ALJ ascertained that
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.” Tr. at 21 (emphasis and
determined that Plaintiff has the following RFC:
[Plaintiff can] perform sedentary or light work as defined in
20 [C.F.R. §§] 416.967(a) and (b) with additional
restrictions. [Plaintiff] can occasionally bend, crouch,
kneel and stoop, but cannot squat, crawl, or the operation of
foot controls [sic]. [Plaintiff] is limited to work that
allows her to alternate between periods of sitting and
standing, at her option, to perform assigned tasks.
[Plaintiff] must avoid ladders, unprotected heights, and the
operation of heavy, moving machinery. [Plaintiff] is limited
to simple tasks and needs a low-stress work environment,
meaning no production line work. [Plaintiff] must avoid
contact with the public and co-workers, and is limited to
work that does not require the assistance of others or for
her to assist others in performing their tasks.
Tr. at 24 (emphasis omitted).
four, the ALJ relied on the testimony of the VE and found
that Plaintiff “is unable to perform any past relevant
work.” Tr. at 30 (emphasis and citation omitted). At
step five, after considering Plaintiff's age
(“[forty-three] years old . . . on the date the
application was filed”), education (“at least a
high school education”), work experience, and RFC, the
ALJ again relied on the testimony of the VE and found that
“there are jobs that exist in significant numbers in
the national economy that [Plaintiff] can perform, ”
Tr. at 30 (emphasis and citation omitted), including
“Hospital Products Assembler, ” “Mail
Clerk, ” and “Lens Inserter, ” Tr. at 31.
The ALJ concluded that Plaintiff “has not been under a
disability . . . since April 22, 2013, the date the
application was filed.” Tr. at 31 (emphasis and
Standard of Review
Court reviews the Commissioner's final decision as to
disability pursuant to 42 U.S.C. §§ 405(g) and
1383(c)(3). Although no deference is given to the ALJ's
conclusions of law, findings of fact “are conclusive if
. . . supported by ‘substantial evidence' . . .
.” Doughty v. Apfel, 245 F.3d 1274, 1278 (11th
Cir. 2001) (citing Falge v. Apfel, 150 F.3d 1320,
1322 (11th Cir. 1998)). “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)). The
substantial evidence standard is met when there is
“‘such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.'”
Falge, 150 F.3d at 1322 (quoting Richardson v.
Perales, 402 U.S. 389, 401 (1971)). It is not for this
Court to reweigh the evidence; rather, the entire record is
reviewed to determine whether “the decision reached is
reasonable and supported by substantial evidence.”
Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th
Cir. 1991) (internal quotation and citations omitted);
see also McRoberts v. Bowen, 841 F.2d 1077, 1080
(11th Cir. 1988); Walker v. Bowen, 826 F.2d 996, 999
(11th Cir. 1987). The decision reached by the Commissioner
must be affirmed if it is supported by substantial
evidence-even if the evidence preponderates against the
Commissioner's findings. Crawford v. Comm'r of
Soc. Sec., 363 F.3d 1155, 1158-59 (11th Cir. 2004) (per
noted, Plaintiff takes issue with the ALJ's finding that
Plaintiff does not meet Listing 12.05 and with the ALJ's
RFC determination. See Pl.'s Mem. at 11-24. In
raising these issues, Plaintiff challenges the ALJ's
rejection of Dr. Sherry V. Risch's opinion.
See Pl.'s Mem. at 17, 18, 20, 21-22, 23-24. This
challenge is more developed in some parts of the memorandum,
see id. at 21-22, than in others, see id.
at 17, 18, 20, 23-24. For ease of discussion, the undersigned
first addresses the ALJ's rejection of Dr. Risch's
opinions as to Plaintiff's inability to maintain
persistence and pace and her inability to interact
appropriately with supervisors, and then Plaintiff's two
main arguments are addressed.
Dr. Risch's Opinion
asserts the ALJ erred in “preferring the opinion of [a]
non-examining source over that of the examining source[, Dr.
Risch].” Id. at 17; see also id. at
18, 20. Plaintiff specifically takes issue with the ALJ's
rejection of Dr. Risch's opinions that Plaintiff is
unable to maintain persistence and pace and that she is
unable to interact appropriately with supervisors.
Id. at 21-22. Responding, Defendant argues that
“as the ALJ found, the evidence [does] not support the
severity of Plaintiff's pain complaints, which undermines
Dr. Risch's opinion on persistence and pace.”
Def.'s Mem. at 14 (citation omitted). Defendant contends
the ALJ properly discounted Dr. Risch's opinion on
Plaintiff's inability to interact appropriately with
supervisors because there was other evidence of record that
contradicted it, including Plaintiff's own testimony.
Id. at 17-18.
Regulations establish a “hierarchy” among medical
opinions that provides a framework for
determining the weight afforded each medical opinion:
“[g]enerally, the opinions of examining physicians are
given more weight than those of non-examining physicians[;]
treating physicians[' opinions] are given more weight
than [non-treating physicians;] and the opinions of
specialists are given more weight on issues within the area
of expertise than those of non-specialists.”
McNamee v. Soc. Sec. Admin., 164 F. App'x 919,
923 (11th Cir. 2006) (citing 20 C.F.R. § 404.1527(d)(1),
(2), (5)). The following factors are relevant in determining
the weight to be given to a physician's opinion: (1) the
“[l]ength of the treatment relationship and the
frequency of examination”; (2) the “[n]ature and
extent of [any] treatment relationship”; (3)
“[c]onsistency” with other medical evidence in
the record; and (5) “[s]pecialization.” 20 C.F.R.
§§ 404.1527(d)(2)-(5), 416.927(d)(2)-(5); see
also 20 C.F.R. §§ 404.1527(e), 416.927(f).
regard to a treating physician or psychiatrist,  the
Regulations instruct ALJs how to properly weigh such a
medical opinion. See 20 C.F.R. § 404.1527(c).
Because treating physicians “are likely to be the
medical professionals most able to provide a detailed,
longitudinal picture of [a claimant's] medical
impairment(s), ” a treating physician's or
psychiatrist's medical opinion is to be afforded
controlling weight if it is “well-supported by
medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial
evidence” in the record. Id. When a treating
physician's or psychiatrist's medical opinion is not
due controlling weight, the ALJ must determine the
appropriate weight it should be given by considering the
factors identified above (the length of treatment, the
frequency of examination, the nature and extent of the
treatment relationship, as well as the supportability of the
opinion, its consistency with the other evidence, and the
specialization of the physician). Id.
ALJ concludes the medical opinion of a treating physician or
psychiatrist should be given less than substantial or
considerable weight, he or she must clearly articulate
reasons showing “good cause” for discounting it.
it. Hargress v. Soc. Sec. Admin., Comm'r, 883
F.3d 1302, 1305 (11th Cir. 2018) (citation omitted);
Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir.
1997). Good cause exists when (1) the opinion is not
bolstered by the evidence; (2) the evidence supports a
contrary finding; or (3) the opinion is conclusory or
inconsistent with the treating physician's or
psychiatrist's own medical records. Hargress,
883 F.3d at 1305 (citation omitted); Phillips, 357
F.3d at 1240-41; see also Edwards v. Sullivan, 937
F.2d 580, 583-84 (11th Cir. 1991); Schnorr v. Bowen,
816 F.2d 578, 582 (11th Cir. 1987) (stating that a treating
physician's medical opinion may be discounted when it is
not accompanied by objective medical evidence).
examining physician's opinion, on the other hand, is not
entitled to deference. See McSwain v. Bowen, 814
F.2d 617, 619 (11th Cir. 1987) (per curiam) (citing
Gibson v. Heckler, 779 F.2d 619, 623 (11th Cir.
1986)); see also Crawford, 363 F.3d at 1160
(citation omitted). Moreover, the opinions of non-examining
physicians, taken alone, do not constitute substantial
evidence. Broughton v. Heckler, 776 F.2d 960, 962
(11th Cir. 1985) (citing Spencer v. Heckler, 765
F.2d 1090, 1094 (11th Cir. 1985)). However, an ALJ may rely
on a non-examining physician's opinion that is consistent
with the evidence, while at the same time rejecting the
opinion of “any physician” whose opinion is
inconsistent with the evidence. Oldham v. Schweiker,
660 F.2d 1078, 1084 (5th Cir. Unit B. 1981) (citation
is required to consider every medical opinion. See
20 C.F.R. §§ 404.1527(d), 416.927(d) (stating that
“[r]egardless of its source, we will evaluate every
medical opinion we receive”). While “the ALJ is
free to reject the opinion of any physician when the evidence
supports a contrary conclusion, ” Oldham, 660
F.2d at 1084 (citation omitted); see also 20 C.F.R.
§§ 404.1527(d)(2), 416.927(d)(2), “the ALJ
must state with particularity the weight given to different
medical opinions and the reasons therefor, ”
Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176,
1179 (11th Cir. 2011) (citing Sharfarz v. Bowen, 825
F.2d 278, 279 (11th Cir.1987)); Moore v. Barnhart,
405 F.3d 1208, 1212 (11th Cir. 2005); Lewis, 125
F.3d at 1440.
Analysis of ALJ's Findings
gave “no weight” to Dr. Risch's opinions that
Plaintiff is unable to interact appropriately with
supervisors and that she is unable to maintain persistence
and pace because, according to the ALJ, these opinions are
inconsistent with other evidence of record. Tr. at 28;
see Tr. at 373 (Dr. Risch's
opinions). Upon review, the undersigned determines
that in noting these inconsistencies, the ALJ provided
sufficient reasons to discount Dr. Risch's opinions.
See Oldham, 660 F.2d at 1084. These reasons are
supported by substantial evidence.
Plaintiff's ability to interact with supervisors, the ALJ
correctly noted that Plaintiff reported she gets along
“OK” with authority figures, Tr. at 225, and her
husband reported she gets along “good” with
authority figures, Tr. at 217. See Tr. at 28. The
ALJ also indicated that Plaintiff was described as
“pleasant” in September 2014 hospital records,
Tr. at 413, and as “pleasant and cooperative” in
June 2013 hospital records, Tr. at 445 (capitalization
omitted). See Tr. at 28.
regard to Plaintiff's ability to maintain persistence and
pace, the ALJ stated that Plaintiff completed high
school and that Plaintiff's mental
health treatment has been minimal and conservative in
nature. Tr. at 28. The ALJ also noted that
although Dr. Risch based her opinion regarding persistence
and pace on Plaintiff's anxiety and pain, see
Tr. at 373, the “diagnostic images and treatment do not
support the severity of [Plaintiff's] pain complaints . .
., ” Tr. at 28. Additionally, the ALJ indicated
that in the evaluation report containing the opinions at
issue, Dr. Risch stated she reviewed medical records from
Plaintiff's hospitalization in 2008. Tr. at 28;
see Tr. at 369. The ALJ correctly stated that during
this hospitalization, Plaintiff was assigned a “[Global
Assessment Functioning (‘GAF')] score of 37,
indicating major impairment in several areas, ” but her
“blood alcohol level was 0.259.” Tr. at 28
(citation omitted); see Tr. at 333, 369. Plaintiff
was “diagnosed with alcohol dependence, in addition to
a mental disorder.” Tr. at 28; see Tr. at 333.
Accordingly, the undersigned finds that the ALJ's
rejection of examining physician Dr. Risch's opinions
regarding persistence and pace and Plaintiff's inability
to interact with supervisors is supported by substantial
argues her mental impairments meet the criteria in paragraph
C of Listing 12.05 or, alternatively, the criteria in
paragraph D. Pl.'s Mem. at 11-20. Responding, Defendant
contends Plaintiff's arguments consist mostly of
conflicting evidence that does not ...