United States District Court, M.D. Florida, Jacksonville Division
DEBORAH L. THIEME-KNIGHT, Plaintiff,
COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant.
MEMORANDUM OPINION AND ORDER 
C. RICHARDSON, UNITED STATES MAGISTRATE JUDGE.
CAUSE is before the Court on Plaintiff’s
appeal of an administrative decision denying her application
for a period of disability and disability insurance benefits
(“DIB”). A hearing was held before an
Administrative Law Judge (“ALJ”) on October 19,
2010, at which Plaintiff was represented by counsel. (Tr.
70-127.) On January 13, 2011, the ALJ found Plaintiff not
disabled from March 30, 2006, the alleged disability onset
date, through September 30, 2010, the date last
insured. (Tr. 133-41.) On February 10, 2012, the
Appeals Council vacated the ALJ’s January 13, 2011
decision and remanded the case to the ALJ for further
proceedings. (Tr.149-51.) In accordance with the remand
order, the ALJ held supplemental administrative hearings on
February 21, 2013 and May 6, 2013. (Tr. 47-127, 1470-91; Tr.
13-46, 1492-1525.) On August 9, 2013, the ALJ issued a second
decision finding Plaintiff not disabled from March 30, 2006
through September 30, 2010, the date last insured. (Tr.
156-71.) On April 20, 2015, the Appeals Council denied
Plaintiff’s request for review of the ALJ’s
August 9, 2013 decision. (Tr. 1352).
Plaintiff filed a federal civil complaint, and, on January 5,
2016, this Court remanded the case to the
Commissioner. (Tr. 1347-48.) On March 26, 2016, the
Appeals Council vacated the ALJ’s August 9, 2013
decision and remanded the case to a different ALJ with
instructions to, inter alia, fully consider the
opinion of Raena Baptiste-Boles, Psy.D., a State agency
consultative examiner, and, “[i]f warranted, [to] give
further consideration to the claimant’s maximum
residual functional capacity and provide appropriate
rationale[, ] with specific references to evidence of
record[, ] in support of the assessed limitations.”
(Tr. 1341-42.) On December 5, 2016, the new ALJ held another
hearing and, on January 13, 2017, issued a decision finding
Plaintiff not disabled from March 30, 2006 through September
30, 2010. (Tr. 1289-1309, 1321-38.) The Appeals Council
declined to “assume jurisdiction” over
Plaintiff’s request for review of the ALJ’s
January 13, 2017 decision. (Tr. 1279-80.)
is appealing the Commissioner’s final decision that she
was not disabled from March 30, 2006 through September 30,
2010. Plaintiff has exhausted her available administrative
remedies and the case is properly before the Court.
(See Tr. 1279-82.) The Court has reviewed the
record, the briefs, and the applicable law. For the reasons
stated herein, the Commissioner’s decision is
REVERSED and REMANDED.
scope of this Court’s review is limited to determining
whether the Commissioner applied the correct legal standards,
McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir.
1988), and whether the Commissioner’s findings are
supported by substantial evidence, Richardson v.
Perales, 402 U.S. 389, 390 (1971). “Substantial
evidence is more than a scintilla and is such relevant
evidence as a reasonable person would accept as adequate to
support a conclusion.” Crawford v. Comm’r of
Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004). Where
the Commissioner’s decision is supported by substantial
evidence, the district court will affirm, even if the
reviewer would have reached a contrary result as finder of
fact, and even if the reviewer finds that the evidence
preponderates against the Commissioner’s decision.
Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th
Cir. 1991); Barnes v. Sullivan, 932 F.2d 1356, 1358
(11th Cir. 1991). The district court must view the evidence
as a whole, taking into account evidence favorable as well as
unfavorable to the decision. Foote v. Chater, 67
F.3d 1553, 1560 (11th Cir. 1995); accord Lowery v.
Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (stating
that the court must scrutinize the entire record to determine
the reasonableness of the Commissioner’s factual
argues that a remand is necessary because the ALJ erred by
failing to properly credit the medical opinions of the State
agency testifying psychological expert, Dr. Rabin, and the
consultative psychological examiner, Dr. Baptiste-Boles, in
assessing Plaintiff’s residual functional capacity
(“RFC”). Defendant responds that the ALJ properly
evaluated the medical source opinions in assessing the
Plaintiff’s RFC prior to the expiration of her insured
Standard for Evaluating Opinion Evidence and
is required to consider all the evidence in the record when
making a disability determination. See 20 C.F.R.
§ 404.1520(a)(3). With regard to medical opinion
evidence, “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). Substantial
weight must be given to a treating physician’s opinion
unless there is good cause to do otherwise. See Lewis v.
Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997).
cause’ exists when the: (1) treating physician’s
opinion was not bolstered by the evidence; (2) evidence
supported a contrary finding; or (3) treating
physician’s opinion was conclusory or inconsistent with
the doctor’s own medical records.” Phillips
v. Barnhart, 357 F.3d 1232, 1240-41 (11th Cir. 2004).
When a treating physician’s opinion does not warrant
controlling weight, the ALJ must nevertheless weigh the
medical opinion based on: (1) the length of the treatment
relationship and the frequency of examination, (2) the nature
and extent of the treatment relationship, (3) the medical
evidence supporting the opinion, (4) consistency of the
medical opinion with the record as a whole, (5)
specialization in the medical issues at issue, and (6) any
other factors that tend to support or contradict the opinion.
20 C.F.R. § 404.1527(c)(2)-(6). “However, the ALJ
is not required to explicitly address each of those factors.
Rather, the ALJ must provide ‘good cause’ for
rejecting a treating physician’s medical
opinions.” Lawton v. Comm’r of Soc.
Sec., 431 F. App’x 830, 833 (11th Cir. 2011) (per
a treating physician’s opinion is generally entitled to
more weight than a consulting physician’s opinion,
see Wilson v. Heckler, 734 F.2d 513, 518 (11th Cir.
1984) (per curiam), 20 C.F.R. § 404.1527(c)(2),
“[t]he opinions of state agency physicians” can
outweigh the contrary opinion of a treating physician if
“that opinion has been properly discounted, ”
Cooper v. Astrue, 2008 WL 649244, *3 (M.D. Fla. Mar.
10, 2008). Further, “the ALJ may reject any medical
opinion if the evidence supports a contrary finding.”
Wainwright v. Comm’r of Soc. Sec. Admin., 2007
WL 708971, *2 (11th Cir. Mar. 9, 2007) (per curiam); see
also Sryock v. Heckler, 764 F.2d 834, 835 (11th Cir.
1985) (per curiam) (same).
ALJ is required to consider the opinions of non-examining
state agency medical and psychological consultants because
they ‘are highly qualified physicians and
psychologists, who are also experts in Social Security
disability evaluation.’” Milner v.
Barnhart, 275 F. App’x 947, 948 (11th Cir. 2008)
(per curiam); see also SSR 96-6p (stating that the
ALJ must treat the findings of State agency medical
consultants as expert opinion evidence of non-examining
sources). While the ALJ is not bound by the findings of
non-examining physicians, the ALJ may not ignore these
opinions and must explain the weight given to them in his
decision. SSR 96-6p.
claimant seeks to establish disability through her own
testimony of pain or other subjective symptoms, the Eleventh
Circuit’s three-part “pain standard”
applies. Holt v. Sullivan, 921 F.2d 1221, 1223 (11th
Cir. 1991) (per curiam). “If the ALJ decides not to
credit such testimony, he must articulate explicit and
adequate reasons for doing so.” Id.
The pain standard requires (1) evidence of an underlying
medical condition and either (2) objective medical evidence
that confirms the severity of the alleged pain arising from
that condition or (3) that the objectively determined medical
condition is of such a severity that it can be reasonably
expected to give rise to the alleged pain.
claimant establishes that his pain is disabling through
objective medical evidence from an acceptable medical source
that shows a medical impairment that could reasonably be
expected to produce the pain or other symptoms, pursuant to
20 C.F.R. § 404.1529(a), “all evidence about the
intensity, persistence, and functionally limiting effects of
pain or other symptoms must be considered in addition to the
medical signs and laboratory findings in deciding the issue
of disability, ” Foote, 67 F.3d at 1561.
Relevant Medical Opinions
Rabin, Ph.D., a licensed clinical and forensic psychologist
designated by the Commissioner as a medical expert, testified
at the hearings on February 21, 2013 (Tr. 1412-69) and May 6,
2013 (Tr. 1470-1525). At the February 21, 2013 hearing, Dr.
Rabin summarized Plaintiff’s mental impairments in the
medical record during the adjudicative period as follows:
[Plaintiff] was originally seen for chronic pain . . . [but]
in July of 08, she was seen for post-concussive syndrome,
though the CT scan at the time was normal. . . . [T]wo months
later they took another MRI of the brain, and that was mildly
abnormal without any specific problems noted. She also ha[d]
been diagnosed with anxiety, post[-]traumatic stress
disorder, and depression over the years. And there were
indications of some neurological issues as well, [including]
Chiari I malformation. When she was seen by the CE
[consultative examiner] in 09, he saw her with a[n]
anxiety disorder due to medical conditions and psychological
factors affecting [her] medical condition. [The CE]
didn’t specify which psychological factors were
involved. The next part of interest is [evidence from]
Neurological Partners in [Exhibit] 22F as of May 10th when
they found a post[-]traumatic concussive syndrome and
persistent cognitive changes due to the post[-]traumatic
concussive syndrome. . . . MRIs have shown mild abnormalities
with the Chiari I syndrome. And also[, ] they include a
suspected partial seizure disorder with memory loss, and
she showed cognitive problems all through . . . the case,
particularly problems with short-term memory and problems
with executive functioning with the ability to carry out and
to complete tasks that [she] start[s]. In the past,
she’s also several times denied the experience of
anxiety and depression and mainly focused on her pain and her
(Tr. 1479-80.) Based on these findings, Dr. Rabin diagnosed
Plaintiff with “cognitive disorder NOS, pain disorder
with both psychological factors and a medullar [inaudible]
condition, and anxiety and depressive disorder NOS.”
(Tr. 1480.) Dr. Rabin also opined that Plaintiff’s
impairments had a mild effect on her activities of daily
living, a moderate effect on her social functioning, and a
marked effect on her pace, persistence, and concentration,
but noted that there had been no periods of decompensation.
(Id.) Dr. Rabin further noted that while Plaintiff
did not meet the listings, he opined that Plaintiff would
have great difficulty in completing “the average
workday in terms of maintaining attention and time on task
long enough in the day due to the pull of . . . her mental
given that neuropsychological testing had not been conducted
due to Plaintiff’s lack of insurance and funds, despite
Plaintiff’s medical providers’ finding that such
testing was necessary, Dr. Rabin recommended that “it
would be best” if neuropsychological tests, including
the WAIS, Wechsler Memory tests, TRAILS, Wisconsin Card Sort
Test, and the REY Memory Test or the TOMM, were
conducted. (Tr. 1481-82.) The ALJ continued the
February 21, 2013 hearing to allow for Plaintiff’s
evaluation (psychometric testing) by a State agency
consultative examiner, which was conducted on March 18, 2013
by Dr. Baptiste-Boles. (Tr. 1504; Tr. 1250-57.)
Plaintiff’s supplemental hearing on May 6, 2013, Dr.
Rabin testified that, although not all of the recommended
tests had been conducted, the WAIS and the Wechsler Memory
tests provided enough information for Dr. Rabin to render an
opinion as to Plaintiff’s intelligence and memory
functioning. (Tr. 1504-05.) Dr. Rabin opined that the tests
showed “a severe verbal learning problem and a problem
with verbal memory[, ]” but acknowledged that testing
regarding Plaintiff’s executive functioning had not
been conducted. (Tr. 1505.) Dr. Rabin noted that
Plaintiff’s memory problems were deemed mild. (Tr.
1507.) Dr. Rabin continued:
[Plaintiff] has a verbal comprehension . . . in the mildly
mentally retarded range, while her other scores are in the
borderline range[, ] except for her working memory . . .
where she scored in the below average range. Looking at the
scores themselves, the scores are consistent within [each]
category, which indicate[s] [they are] probably accurate. And
she showed very poor scores on all aspects of verbal
comprehension, using language, understanding language, and
remembering language[, ] while her other scores are somewhat
. . .
In terms of her memory functioning[, ] she has a very low
score in auditory memory, which means that she has a problem
with meaningful material. She cannot remember meaningful
material very well compared to most people. Looking at her
scores . . . meaningful material is not an aid to her memory.
. . . Her visual memory is normal. Her working memory is
normal. Her delayed memory . . . is also very poor. She would
have [difficulty] remembering work procedures and could only
deal with the most simple of work procedures and routine work
which [would] not change over time.
(Tr. 1508-09.) Dr. Rabin opined that Plaintiff should have
“no contact with the general public because she may get
confused or get the wrong information[, ]” but placed
no limitations on contact with supervisors or co-workers.
Rabin then testified that he had reviewed the psychometric
testing performed by Dr. Baptiste-Boles, discussed
infra, and that he agreed with her findings, except
that in terms of Plaintiff’s diagnosis of Major
Depressive Disorder, Dr. Rabin opined that it was not clear
if Plaintiff suffered from “a major depression, a
bipolar, or dysthymic disorder.” (Tr. 1509-11.) Dr.
Rabin opined that, “[a]s Dr. Bowles [sic] said in her
report, and I agree in my earlier testimony, given her
multitude of problems, it’s very difficult [inaudible]
[to complete] ¶ 40hour workweek and do the work, [and]
be on task[, ] for 90 percent of the day or more.
That’s . . . the issue I had, what Dr. Boles has, with
this case.” (Tr. 1515.) Dr. Rabin testified that
Plaintiff’s impairments had a mild effect on her
activities of daily living and social functioning, but had a
marked effect on pace and concentration, with no episodes of
decompensation. (Tr. 1519.) He concluded that:
given all of [Plaintiff’s] medical problems and
emotional problems, one of my diagnoses before was pain
disorder with both psychological and medical issues. I think
that she would miss too much time off of work or be off task
too often because of the pull of her psychological problems
and the pull of her pain disorder and everything else.
That’s what I’m saying. That’s what I said
the last time as well.
22, 2013, Dr. Rabin also submitted a post-hearing Mental RFC
Questionnaire. (Tr. 1275-78.) In the Mental RFC
Questionnaire, Dr. Rabin identified Plaintiff’s signs
and symptoms of anhedonia or pervasive loss of interest in
almost all activities, decreased energy, generalized
persistent anxiety, somatization unexplained by organic
disturbance, mood disturbance, difficulty thinking or
concentrating, memory impairment, and psychological or
behavioral abnormalities associated with a dysfunction of the
brain with a specific organic factor judged to be
etiologically related to the abnormal mental state and loss
of previously acquired functional abilities. (Tr. 1275-76.)
Dr. Rabin also opined that Plaintiff would have noticeable
difficulty (meaning that she would be unable to perform a
designated task or function more than 20% of the workday or
workweek) performing work-related activities, involving
understanding and remembering detailed instructions, carrying
out detailed instructions, and traveling to unfamiliar places
or using public transportation. (Tr. 1276-77.)
Rabin also concluded that Plaintiff would have noticeable
difficulty (from 11% to 20% of the workday or workweek) with
the following: remembering work-like procedures; maintaining
regular attendance; performing at a consistent pace without
an unreasonable number and length of rest [periods];
responding appropriately to changes in a routine work
setting; dealing with normal work stress; and dealing with
stress of semi-skilled and skilled work. (Id.) He
also determined that Plaintiff would have noticeable
difficulty (up to 10% of the workday or workweek) performing
the following: understanding and remembering very short and
simple instructions; carrying out very short and simple
instructions; completing a normal workday and workweek
without interruptions from psychologically based symptoms;
accepting instructions and responding appropriately to
criticism from supervisors; getting along with co-workers or
peers without unduly distracting them or exhibiting
behavioral extremes; interacting appropriately with the
general public; and maintaining socially appropriate
behavior. (Id.) Dr. Rabin concluded that
Plaintiff’s impairments were expected to last at least
12 months and that Plaintiff was not a malingerer. (Tr.
March 18, 2013, Dr. Raena Baptiste-Boles conducted a
psychological examination of Plaintiff. (Tr. 1250-54
(Psychological Evaluation); Tr. 1255-57 (Medical Source
Statement of Ability to do Work-Related Activities
(Mental)).) Dr. Baptiste-Boles noted as follows:
[Plaintiff] reported current mental health conditions being
remarkable for depression and anxiety. The following symptoms
of depression were endorsed: crying spells, insomnia,
worthlessness, feeling of loss (e.g.[, ] son in prison,
mother’s death, and dad’s death), and
irritability. She stated that symptoms worsened after falling
in a store in 2008. Onset was reported 6 years ago.
. . .
Current mood was reported as “sad” and affect
appeared consistent with mood. She reported that the present
conditions [were] impacted by medical condition and economic
difficulties. . . .
. . .
The current level of mental health symptoms would be best
characterized as moderate.
. . .
Baptiste-Boles then conducted a Mental Status Evaluation and
noted, inter alia, that Plaintiff
“demonstrated adequate attention and concentration as
she was able to attend to the evaluator’s questions
throughout the interview without distraction and was able to
complete tasks of alphabetic and numeric reiteration without
errors.” (Tr. 1252.) Dr. Baptiste-Boles further noted
[Plaintiff’s] flexibility appeared adequate as she was
able to spell the word “world” backwards and
complete simple tasks of serial calculations without errors.
[Plaintiff] did not display any significant difficulties in
processing speed. Receptive language appeared to be adequate
as she was able to complete all verbal commands presented
without errors and expressive language appeared to be
adequate as she was able to complete all written tasks
presented without errors. Immediate memory appeared to be
mildly impaired as she was able to recall 2 of 3 words
immediately after presentation and recent memory appeared to
be mildly impaired as she was able to recall 2 of the 3 words
presented after a short delay. Remote memory appeared to be
adequate as she was ...