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Thieme-Knight v. Commissioner of Social Security Administration

United States District Court, M.D. Florida, Jacksonville Division

September 25, 2019




         THIS 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.[2] (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.[3] (Tr.149-51.) In accordance with the remand order, the ALJ held supplemental administrative hearings on February 21, 2013 and May 6, 2013.[4] (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).

         Thereafter, Plaintiff filed a federal civil complaint, and, on January 5, 2016, this Court remanded the case to the Commissioner.[5] (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.)

         Plaintiff 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.

         I. Standard

         The 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 findings).

         II. Discussion

         Plaintiff 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 status.

         A. Standard for Evaluating Opinion Evidence and Subjective Symptoms

         The ALJ 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).

         “‘[G]ood 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 curiam).

         Although 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).

         “The 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.

         When a 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.


         Once a 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.

         B. Relevant Medical Opinions

         1. Dr. Rabin

         Michael 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 [20]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 [20]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 memory problems.

(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 symptoms.” (Id.)

         However, 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.[6] (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.)

         At 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 better.
. . .
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. (Tr. 1514-15.)

         Dr. 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.

(Tr. 1520.)

         On May 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.)

         Dr. 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. 1277.)

         2. Dr. Baptiste-Boles

         On 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.
. . .

(Tr. 1251.)

         Dr. 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 that:

[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 ...

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