United States District Court, M.D. Florida, Jacksonville Division
Patricia D. Barksdale, United States Magistrate Judge.
Dominguez Velazquez brings this action under 42 U.S.C. §
1383(c)(3) to review a final decision of the Commissioner of
Social Security denying her application for supplemental
security income dated January 20, 2015. Under review is a
decision by the Administrative Law Judge (“ALJ”)
dated June 27, 2017. Tr. 25– 40. Summaries of the law
and the administrative record are in the ALJ’s
decision, Tr. 25–40, and the parties’ briefs,
Docs. 16, 17, and not fully repeated here.
found Velazquez has severe impairments of fibromyalgia and
spinal disorders. Tr. 27. The ALJ found she has the residual
functional capacity (“RFC”) to perform light work
with additional limitations. Tr. 29. For the RFC, the ALJ
rejected an opinion of Miguel Rosada, M.D., a doctor
Velazquez saw at least six times in 2014 and
2015. Tr. 323–47. Dr. Rosada’s
opinion is in a “Fibromyalgia Medical Source
Statement” he completed on June 8, 2015. Tr.
366–69. The statement contains limitations greater than
the ALJ found, including that Velazquez would be off-task 25
percent or more in a typical workday and would miss more than
four days of work a month if trying to work
fulltime. Compare Tr. 29 with Tr.
369. According to a vocational expert who testified at the
administrative hearing, either limitation would eliminate all
work for Velazquez. Tr. 63–66.
summarizing the medical records and analyzing
Velazquez’s subjective complaints, the ALJ discussed
the opinion evidence and stated she was giving “great
weight” to mental RFC findings by state agency
psychological consultants Maxine Ruddock, Ph.D., and Nancy
Hinkeldey, Ph.D.; “great weight” to a
consultative psychological examination by Susana Barsky,
Ph.D; “some weight” to a physical RFC finding by
Thomas Bixler, M.D. (rejecting his opinion Velazquez can
perform medium work); and “little weight” to Dr.
Rosada’s opinion. Tr. 33. For all but the latter
opinion, the ALJ found the opinions were consistent or
largely consistent with the evidence. Tr. 33. For the latter
opinion, the ALJ explained:
Dr. Rosada’s opinion was overbroad and unsupported by
the evidence and by his own treatment notes. For example, Dr.
Rosada reported that the claimant would only be able to use
her fingers for 5% of an eight-hour day, which is not
supported by evidence of a hand disorder, motor weakness, or
loss of grip strength. As his statements are not supported by
the evidence, the undersigned gave little weight to Dr.
challenges the ALJ’s treatment of Dr. Rosada’s
opinion, arguing she “unambiguously” satisfied
her burden of establishing she is disabled through Dr.
Rosada’s opinion and the ALJ’s evaluation of his
opinion is “legally insufficient.” Doc. 16 at
reviews the Commissioner’s factual findings with
deference and legal conclusions under close scrutiny.
Owens v. Heckler, 748 F.2d 1511, 1516 (11th Cir.
1984). The Commissioner’s factual findings are
conclusive if supported by substantial evidence, which is
“such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.”
Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019)
(internal quotation marks and alteration omitted). The
Commissioner’s “failure to apply the correct law
or to provide the reviewing court with sufficient reasoning
for determining that the proper legal analysis has been
conducted mandates reversal.” Ingram v.
Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1260
(11th Cir. 2007).
must consider medical opinions with other record evidence. 20
C.F.R. § 416.927(b). In assessing the weight to give a
medical opinion, an ALJ considers the examining relationship;
the treatment relationship; the length of the treatment
relationship and the frequency of examination; the nature and
extent of the treatment relationship; supportability;
consistency; specialization; and any other factor that
supports or contradicts the opinion. Id. §
416.927(c)(1)–(6). An ALJ applies the same standards
whether the medical opinion is from a treating physician, a
consultative examiner, or a nonexamining, reviewing
physician. Id. §§ 416.927(c),
opinion of a treating specialist is entitled to the most
weight, while an opinion of a non-examining, reviewing
physician is entitled to the least weight. See 20
C.F.R. § 416.927(c)(1)–(2). “Of course, the
ALJ may reject any medical opinion if the evidence supports a
contrary finding.” Sharfarz v. Bowen, 825 F.2d
278, 280 (11th Cir. 1987). But an ALJ may not substitute her
own opinion on a medical issue for that of a medical expert.
Graham v. Bowen, 786 F.2d 1113, 1115 (11th Cir.
1986); Freeman v. Schweiker, 681 F.2d 727, 731 (11th
facilitate meaningful review, an 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).
“When electing to disregard the opinion of a treating
physician, the ALJ must clearly articulate [her]
reasons.” Phillips v. Barnhart, 357 F.3d 1232,
1241 (11th Cir. 2004). A court will not affirm “simply
because some rationale might have supported” the
decision.” Owens, 748 F.2d at 1516. Good cause
to give less weight to a treating source’s opinion
exists if the evidence does not bolster the opinion, the
evidence supports a contrary finding, or the opinion is
conclusory or inconsistent with the treating source’s
own records. Phillips, 357 F.3d at 1240. If finding
inconsistencies, an ALJ should identify the inconsistencies.
Perez v. Comm’r of Soc. Sec., 625 Fed.Appx.
408, 418 (11th Cir. 2015).
the ALJ stated the weight she was giving to Dr.
Rosada’s opinion (“little weight”) and
stated in general terms valid reasons for rejecting Dr.
Rosada’s opinion (“unsupported by the evidence
and by his own treatment notes”), providing a single
example (a significant hand limitation despite no objective
evidence of a hand impairment) from nearly forty sub-opinions
in Dr. Rosada’s Fibromyalgia Medical Source Statement,
Tr. 33–34. See 20 C.F.R. §
416.927(c)(3) (supportability factor). But the ALJ did not
clearly articulate how Dr. Rosada’s treatment notes or
the remainder of the evidence fail to support Dr.
Rosada’s opinion, and why they do is unclear
is a “complex medical condition characterized primarily
by widespread pain in the joints, muscles, tendons, or nearby
soft tissues that has persisted for at least 3 months.”
Social Security Ruling 12-2p, 2012 WL 3104869, at *2 (July
25, 2012). “[T]he symptoms and signs … may vary
in severity over time and may even be absent on some
days.” Id. Fibromyalgia “often lacks
medical or laboratory signs” and “is generally
diagnosed mostly on [an] individual’s described
symptoms.” Moore v. Barnhart, 405 F.3d 1208,
1211 (11th Cir. 2005). For fibromyalgia, a treating
physician’s opinion interpreting the data may be even
more valuable. Stewart v. Apfel, 245 F.3d 793
(table), No. 99-6132, 2000 U.S. App. LEXIS 33214, at *9 (11th
Cir. Dec. 20, 2000) (unpublished). The absence of objective
evidence alone is insufficient to reject a treating
physician’s opinion about a claimant’s functional
limitations for fibromyalgia. Somogy v. Comm’r of
Soc. Sec., 366 Fed.Appx. 56, 64 (11th Cir. 2010).
on Dr. Rosada’s opinion that Velazquez would be
off-task 25 percent or more in a typical workday and would
miss more than four days of work a month if trying to work
fulltime, why the evidence or Dr. Rosada’s treatment
notes fail to support that opinion is unclear.
Velazquez’s activities and abilities (she can shop,
drive, maintain self-care, perform light household chores,
prepare simple meals, manage money, watch television, attend
doctor’s appointments, take medications, provide
information to healthcare providers, maintain a good rapport
with healthcare providers, follow instructions of healthcare
providers, get along with others, spend time with family and
friends, live with others, and appropriately deal with
authority, see Tr. 28) do not undermine Dr.
Rosada’s opinion because none really speak to how long
she can be on task during a typical workday or how many days
a month she would have to miss if working fulltime. See
Lewis v. Callahan, 125 F.3d 1436, 1441 (11th Cir. 1997)
(claimant’s participation in everyday activities of
short duration is not inconsistent with treating
physicians’ opinions about sit-stand-walk limitations
during 8-hour workday). Dr. Barsky’s opinion does not
undermine Dr. Rosada’s opinion because Dr. Barsky
cautioned that her assessment concerned Velazquez’s
“psychiatric functioning” without considering
medical conditions that “may further impede her
functioning.” Tr. 364. The records of ...