MESTRE

v.

COMMISSIONER OF SOCIAL SECURITY

OPINION AND ORDER1

I. Status

Michael Mestre (“Plaintiff”) is appealing the Commissioner of the Social Security Administration’s (“SSA(’s)”) final decision denying his claim for disability insurance benefits (“DIB”). Plaintiff’s alleged inability to work is the result of Crohn’s disease, fibromyalgia, Asperger’s syndrome, anxiety, depression, and obsessive compulsive disorder (“OCD”). Transcript of Administrative Proceedings (Doc. No. 16; “Tr.” or “administrative transcript”), filed June 24, 2021, at 55, 72. Plaintiff protectively filed an application for DIB

94. The application was denied initially, Tr. at 54-68, 69, 70, 97-99, and upon reconsideration, Tr. at 71-87, 88, 89, 101-06. On February 19, 2020, an Administrative Law Judge (“ALJ”) held a hearing during which Plaintiff, represented by counsel, and a vocational expert (“VE”) testified. Tr. at 32-49 (hearing transcript), 94, 96 (appointment of representative documents). At the time, Plaintiff was twenty-eight (28) years old. Tr. at 35. On April 17, 2020, the ALJ issued a Decision finding Plaintiff not disabled through the date of the Decision. See Tr. at 15-26.

Thereafter, Plaintiff sought review of the Decision by the Appeals Council. See Tr. at 4-5 (Appeals Council exhibit list and order), 185-87 (request for review). On November⁴, 2020, the Appeals Council denied Plaintiff’s request for review, Tr. at 1-3, thereby making the ALJ’s Decision the final decision of the Commissioner. On January⁴, 2021, Plaintiff commenced this action through counsel under 42 U.S.C. § 405(g) by timely filing a Complaint (Doc. No. 1), seeking judicial review of the Commissioner’s final decision. On appeal, Plaintiff challenges:¹) “whether the ALJ properly considered the persuasiveness of the treating opinion evidence”;²) “whether substantial

Administration’s consideration of Plaintiff’s RFC and subjective pain complaints. For this reason, the Court need not address Plaintiff’s arguments in this regard. See Jackson v. Bowen, 801 F. 2d 1291, 1294 n.2 (11th Cir. 1986) (per curiam) (declining to address certain issues because they were likely to be reconsidered on remand); Demenech v. Sec’y of the Dep’t of Health & Human Servs., 913 F. 2d 882, 884 (11th Cir. 1990) (per curiam) (concluding that certain arguments need not be addressed when the case would be remanded on other issues). II. The ALJ’s Decision

When determining whether an individual is disabled,³ 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; see also Simon v. Comm’r, Soc. Sec. Admin.,⁷

F. 4th 1094, 1101-02 (11th Cir. 2021) (citations omitted); 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 n.5 (1987).

Here, the ALJ followed the five-step sequential inquiry. See Tr. at 17-26. At step one, the ALJ determined Plaintiff “has not engaged in substantial gainful activity since March 5, 2018, the alleged onset date.” Tr. at 17 (emphasis and citation omitted). At step two, the ALJ found that Plaintiff “has the

Tr. at 19 (emphasis omitted). At step four, the ALJ found that Plaintiff “is unable to perform any past relevant work” as a “Furniture Assembler/Installer of Office Furniture.” Tr. at 24 (some emphasis and citation omitted). At the fifth and final step of the sequential inquiry, after considering Plaintiff’s age (“26 years old . . . on the alleged disability onset date”), education (“at least a high school education”), work experience, and RFC, the ALJ found that “there are jobs that exist in significant numbers in the national economy that [Plaintiff] can perform,” such as “Clerical Addresser,” “Computer Breaker/Circuit,” and “Products Inspector.” Tr. at 25 (some emphasis and citation omitted). The ALJ concluded Plaintiff

“has not been under a disability . . . from March 5, 2018, through the date of th[e D]ecision.” Tr. at 26 (emphasis and citation omitted).

III. Standard of Review

This Court reviews the Commissioner’s final decision as to disability pursuant to 42 U.S.C. § 405(g). 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)); see also Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019); Samuels v. Acting Comm’r of Soc. Sec., 959 F. 3d 1042, 1045 (11th Cir. 2020) (citation omitted). 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) (citation omitted). 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 curiam).

IV. Discussion

Plaintiff argues that the ALJ erred in evaluating the various medical opinions regarding Plaintiff’s limitations. Joint Memo at 19-27. There are three treating opinions at issue:¹) rheumatologist Ginige DeSilva, M.D.;²) internal medicine specialist Eduardo Martinez, M.D.; and³) a joint opinion by treating psychiatrist Joseph Adan, M.D. and Rebecca Shytle, ARNP. See id. In addition,

there are three non-examining state agency physicians’ opinion at issue:¹) Roland Gutierrez, M.D. (physical RFC opinion);²) Lee Reback, Psy.D., P.A. (mental RFC opinion); and Dawn Jackson, Psy.D. (mental RFC opinion). See id. at 20-25. Responding, Defendant asserts the ALJ appropriately evaluated the medical opinions in accordance with the revised SSA rules and Regulations. Id. at 27-34. Further, Defendant contends the ALJ’s analysis is supported by substantial evidence. Id. The SSA revised the rules regarding the evaluation of medical evidence for claims filed on or after March 27, 2017. See Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 5844, 5844 (January 18, 2017); see also 82 Fed. Reg. 15,132 (March 27, 2017) (amending and correcting the final Rules published at 82 Fed. Reg. 5,844). Under the new rules and Regulations, “A medical opinion is a statement from a medical source about what [the claimant] can still do despite [his or her] impairment(s) and whether [the claimant] ha[s] one or more impairment-related limitations or restrictions in the following abilities:”¹) the “ability to perform physical demands of work activities”;²) the “ability to perform mental demands of work activities”;³) the

“ability to perform other demands of work, such as seeing, hearing, or using other senses”; and⁴) the “ability to adapt to environmental conditions.” 20 C.F.R. § 404.1513(a)(2); see also 20 C.F.R. § 404.1502 (defining “[a]cceptable medical sources”). An ALJ need not “defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) . . . , including those from [the claimant’s] medical sources.” 20 C.F.R. § 404.1520c(a).⁴ “Because section 404.1520c falls within the scope of the Commissioner’s authority and was not arbitrary and capricious, it abrogates [the United States Court of Appeals for the Eleventh Circuit’s] prior precedents applying the treating-physician rule.” Harner v. Soc. Sec. Admin., Comm’r, 38 F. 4th 892, 896 (11th Cir. June 27, 2022).5

The RFC assessment “is the most [a claimant] can still do despite [his or her] limitations.” 20 C.F.R. § 404.1545(a)(1). It is used at step four to determine whether a claimant can return to his or her past relevant work, and if necessary,

Here, all three treating opinions about Plaintiff’s functioning, if accepted either singularly or in combination, would likely result in a finding of disability. See Tr. at 479-80 (Dr. DeSilva opining in August 2018 about the effects of Plaintiff’s fibromyalgia, including needing “frequent periods of rest on a daily basis” and “[d]aily flare ups of pain lasting all day”); Tr. at 641-45 (Dr. Martinez opining in October 2019 about the effects of Crohn’s disease, fibromyalgia, and Asperger’s syndrome, including that Plaintiff can sit and stand only one hour each per day, must get up every 30 minutes, can occasionally lift or carry up to five pounds, will need unscheduled breaks hourly, will be absent more than three times per month, and all symptoms are aggravated by stress); Tr. at 543- 48 (Dr. Acan and Ms. Shytle opining in May 2018 about Plaintiff’s mental capacity, including poor focus and concentration, lack of sleep and impaired social skills; assigning marked limitations in fourteen areas; and stating

Plaintiff will be absent from work more than three times per month). In the Decision, the ALJ found Dr. DeSilva’s opinion to be “unpersuasive”; Dr. Martinez’s opinion to be “inconsistent”; and Dr. Adan/Ms. Shytle’s opinion to be “unpersuasive.”⁷ Tr. at 23-24. The ALJ instead relied on the non-examining opinion of Dr. Gutierrez for the physical limitations, and on the opinions of Drs. Reback and Jackson for the mental limitations. Tr. at 23; see Tr. at 79-82 (Dr. Gutierrez’s opinion); Tr. at 59-61 (Dr. Reback’s opinion) Tr. at 82-85 (Dr. Jackson’s opinion). The ALJ erred with respect to the physical RFC opinions at issue. In finding Dr. DeSilva’s opinion to be “unpersuasive,” ALJ specifically pointed to the doctor’s findings about decreased grip and extremity strength and corresponding “decreased ability to perform fine and gross manipulation,” observing that those findings were inconsistent with the doctor’s examination findings. Tr. at 24. However, the opinion on which the ALJ relied, that of Dr. Gutierrez, similarly noted “decreased muscle strength throughout extremities” and “decreased ability to perform fine and gross movements” because of “17

[Plaintiff] only had mild Asperger’s syndrome.” Tr. at 24. A review of Dr. Martinez’s specialty (internal medicine) and the details provided in the opinion show that while he did opine to a degree about the effects of Plaintiff’s Asperger’s syndrome and fibromyalgia, his focus (and treatment) was on the effects of Crohn’s disease. See Tr. at 641-45. Yet, the ALJ in addressing the opinion focuses on the other aspects. While the ALJ was accurate that the weight limitation compared to Plaintiff’s admission was inconsistent, the ALJ too narrowly discussed the opinion. It is unclear why the ALJ did not accept Dr. Martinez’s findings about the effects of the Crohn’s disease. In addition, the

ALJ neglected to acknowledge or discuss the bulk of the records from Florida Center for Gastroenterology that shed more light on the effects of the Crohn’s disease,⁸ see Tr. at 559-74, or, as observed previously, the January 2020 record documenting a flare up of the Crohn’s disease due to the once-effective medication not being covered by Plaintiff’s insurance, see Tr. at 50-53. With respect to the mental RFC opinions at issue, Plaintiff’s only real challenge to the ALJ’s findings are that the “ALJ hones in on a very brief period citing to records from July and September 2019” and “does not take into account the longitudinal treatment history and the nature of mental health impairments; hallmarked by their waxing and waning symptoms.” Joint Memo at 25. But, Plaintiff recognizes that the ALJ’s findings about Plaintiff doing better on Latuda in July and September 2019 are accurate. Id. Upon review of the ALJ’s reasoning for finding Dr. Adan’s/Ms. Shytle’s opinion to be unpersuasive and the opinions of Dr. Reback and Dr. Jackson to be persuasive, the undersigned is not convinced the ALJ erred on these matters. The ALJ’s

V. Conclusion

The ALJ reversibly erred with respect to the medical opinions addressing Plaintiff’s physical RFC, but not with respect to the mental RFC. In light of the foregoing, it is

ORDERED: 1. The Clerk of Court is directed to enter judgment pursuant to sentence four of 42 U.S.C. § 405(g), REVERSING the Commissioner’s final decision and REMANDING this matter with the following instructions:

(A) Reconsider the physical medical opinion evidence (opinions of Drs. Gutierrez, DeSilva, and Martinez) consistent with the applicable Regulations; and
(B) If appropriate, address the other issues raised by Plaintiff in this appeal; and
(C) Take such other action as may be necessary to resolve this claim properly.

2. The Clerk is further directed to close the file.

3. In the event benefits are awarded on remand, Plaintiff’s counsel shall ensure that any § 406(b) fee application be filed within the parameters set forth by the Standing Order on Management of Social Security Cases entered on December⁷, 2021 in Case No. 3:21-mc-001-TJC (Doc. No. 43, 44 6, 8). DONE AND ORDERED in Jacksonville, Florida on September 19, 2022.

Verge Boo KAS

JAMES R. KLINDT

United States Magistrate Judge kaw Copies to: Counsel of Record