PENA

v.

COMMISSIONER OF SOCIAL SECURITY

MEMORANDUM OF DECISION¹

Yolanda Pena (“Claimant”) appeals the final decision of the Commissioner of Social Security (“Commissioner”) denying her application for disability insurance benefits (“DIB”). Claimant raises three arguments challenging the Commissioner’s final decision, and based on those arguments, requests that the matter be reversed for an award of benefits, or, in the alternative, remanded for further administrative proceedings. Doc. No. 38, at 12-18, 23-25, 27. 2 The

I. PROCEDURAL HISTORY

On January 17, 2019, Claimant filed an application for disability insurance benefits, alleging a disability onset date of August¹¹, 2018. R. 33, 178-181.3 Claimant’s application was denied initially and again upon reconsideration, and she requested a hearing before an ALJ. R. 93-96, 102-111. A hearing was held before the ALJ on May 13, 2020. R. 52-66. Claimant and a vocational expert (“VE”) testified at the hearing. Id. Claimant was represented by a non-attorney representative at the hearing. Id. After the hearing, the ALJ issued an unfavorable decision finding that

Claimant was not disabled. R. 33-46. Claimant sought review of the ALJ’s decision by the Appeals Council. R. 8-14, 31-32. On October⁸, 2021, the Appeals

step evaluation process as set forth in 20 C.F.R. § 404.1520(a). R. 33-46.5 The ALJ first found that Claimant met the insured status requirements of the Social Security Act through December 31, 2022. R. 35. The ALJ also concluded that the Claimant had not engaged in substantial gainful activity since August¹¹, 2018, the alleged onset date. Id. The ALJ found that Claimant suffered from the following severe impairments: spine disorders and complex regional pain syndrome of the left leg.

After careful consideration of the entire record, the ALJ found that Claimant had the residual functional capacity (“RFC”) to perform light work as defined in the Social Security regulations,7 with the following additional limitations: [E]xcept she is able to sit for up to 7 hour [sic] per day for¹ hour at a time; stand and/or walk up to⁴ hours per day for up to¹ hour at a time; lift up to 20 pounds occasionally and¹⁰ pounds frequently; limited to occasional bending, stooping and stairs; no crawling and no ladders, ropes or scaffolds and limited to occasional reaching above shoulder level.

R. 36. The ALJ found that Claimant was unable to perform any past relevant work as a dental assistant. R. 45. The ALJ also noted that as of the alleged disability

Claimant’s age, education, work experience, and RFC, as well as the testimony of the VE, the ALJ concluded that there were jobs existing in significant numbers in the national economy that Claimant could perform, such as ticket taker, gate guard, and case aide. R. 45-46. Accordingly, the ALJ concluded that Claimant had not been under a disability, as defined in the Social Security Act, from August¹¹, 2018, through the date of decision. R. 46.

III. STANDARD OF REVIEW

Because Claimant has exhausted her administrative remedies, the Court has jurisdiction to review the decision of the Commissioner pursuant to 42 U.S.C. § 405(g), as adopted by reference in 42 U.S.C. § 1383(c)(3). The scope of the Court’s review is limited to determining whether the Commissioner applied the correct legal standards and whether the Commissioner’s findings of fact are supported by substantial evidence. Winschel v. Comm’r of Soc. Sec., 631 F. 3d 1176, 1178 (11th Cir. 2011). The Commissioner’s findings of fact are conclusive if they are supported by substantial evidence, 42 U.S.C. § 405(g), which is defined as “more than a scintilla and is such relevant evidence as a reasonable person would accept as adequate to support a conclusion.” Lewis v. Callahan, 125 F. 3d 1436, 1440 (11th Cir. 1997). The Court must view the evidence as a whole, taking into account evidence favorable as well as unfavorable to the Commissioner’s decision, when determining whether the decision is supported by substantial evidence. Foote v. Chater, 67 F. 3d

1553, 1560 (11th Cir. 1995). The Court may not reweigh evidence or substitute its judgment for that of the Commissioner, and, even if the evidence preponderates against the Commissioner’s decision, the reviewing court must affirm if the decision is supported by substantial evidence. Bloodsworth v. Heckler, 703 F. 2d 1233, 1239 (11th Cir. 1983).

IV. ANALYSIS

In the Joint Memorandum, which the undersigned has reviewed, Claimant raises three assignments of error: (1) the ALJ erred in the RFC determination by failing to properly consider the opinion of Dr. Aaron Smith as it relates to a lifting limitation; (2) the ALJ erred in failing to address the Claimant’s use of a cane/assistive device; and (3) the ALJ improperly relied on the testimony of the VE after posing and relying on a hypothetical question that did not adequately reflect Claimant’s limitations. Doc. No. 38, at 12-18, 23-25. The Court will limit its discussion to Claimant’s first assignment of error as it is dispositive of this appeal.

A. The RFC Determination – Failure to Properly Consider Dr. Aaron Smith’s Medical Opinion

The ALJ is tasked with assessing a claimant’s RFC and ability to perform past relevant work. Phillips v. Barnhart, 357 F. 3d 1232, 1238 (11th Cir. 2004). The RFC “is an assessment, based upon all of the relevant evidence, of a claimant’s remaining ability to do work despite his impairments.” Lewis, 125 F. 3d at 1440. In determining a claimant’s RFC, the ALJ must consider all relevant evidence, including the opinions of medical and non-medical sources. 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3). Claimant filed her application for DIB on January 17, 2019. R. 33, 178-181.

Effective March 27, 2017, the Social Security Administration implemented new regulations related to the evaluation of medical opinions, which provide, in pertinent part, as follows:

(a) How we consider medical opinions and prior administrative medical findings. We will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from your medical sources. When a medical source provides one or more medical opinions or prior administrative medical findings, we will consider those medical opinions or prior administrative medical findings from that medical source together using the factors listed in paragraphs (c)(1) through (c)(5) of this section, as appropriate. The most important factors we consider when we evaluate the persuasiveness of medical opinions and prior administrative medical findings are supportability (paragraph (c)(1) of this section) and consistency (paragraph (c)(2) of this section). We will articulate how we considered the medical opinions and prior administrative medical findings in your claim according to paragraph (b) of this section.

20 C.F.R. §§ 404.1520c(a), 416.920c(a). Subparagraph (c) provides that the factors to be considered include: (1) supportability; (2) consistency; (3) relationship with the claimant (which includes consideration of the length of treatment relationship; frequency of examination; purpose of treatment relationship; extent of treatment relationship; and examining relationship); (4) specialization; and (5) other factors that tend to support or contradict a medical opinion or prior administrative medical finding. Id. §§ 404.1520c(c), 416.920c(c). Pursuant to the new regulations, the Commissioner is not required to articulate how she “considered each medical opinion or prior administrative medical finding from one medical source individually.” Id. §§ 404.1520c(b)(1), 416.920c(b)(1). Rather, the most important factors the Commissioner will consider when determining the persuasiveness of medical opinions are supportability and consistency. Id. §§ 404.1520c(b)(2), 416.920c(b)(2). The regulations state that the Commissioner will explain how she considered the supportability and consistency factors in the determination or decision. Id. Thus, “[o]ther than articulating his consideration of the supportability and consistency factors, the Commissioner is not required to discuss or explain how he considered any other factor in determining persuasiveness.” Freyhagen v. Comm’r of Soc. Sec. Admin., No. 3:18-cv-1108-J-MCR, 2019 WL 4686800, at *2 (M.D. Fla. Sept. 26, 2019) (citing Mudge v. Saul, No. 4:18CV693CDP, 2019 WL 3412616, *4 (E.D. Mo. July 29, 2019)). See also Bevis v. Comm’r of Soc. Sec., 552 F. Supp. 3d 1266, 1271 (M.D. Fla. 2021) (“However, pursuant to the regulations, the most important factors the Commissioner will consider when determining the persuasiveness of medical opinions are supportability and consistency.”) (citing 20 C.F.R. § 404.1520c(b)(2), 416.920c(b)(2)); Diaz-Ortiz v. Comm’r of Soc. Sec., 2:20-cv-134-MRM, 2021 WL 4205850, at *4 (M.D. Fla. Sept. 16,

2021) (“Supportability and consistency constitute the most important factors in any evaluation, and the ALJ must explain how those two facts are considered.”).⁸ Claimant argues that the ALJ failed to adequately weigh and consider the opinion of Dr. Aaron Smith. Doc. No. 38, at 12. Dr. Smith is an orthopedic specialist who performed surgery on Claimant on January 21, 2019.9 R. 475-76, 483-84. Specifically, Claimant’s preoperative diagnosis was a herniated disc with annular tear and retrolisthesis of L5 on S1. R. 475-76. Following that surgery, on

February 25, 2019, Claimant visited Dr. Smith for a postoperative appointment. R. 483 (noting that reason for appointment was “Postoperative ALIF L5-S¹, surgery

In his decision, the ALJ detailed Claimant’s medical history, including her treatment and surgeries with Dr. Smith. R. 36-44. However, when it came to discussing the medical opinions of record, the ALJ did not mention Dr. Smith’s February 25, 2019 treatment notes and/or the lifting limitation at all. R. 44.

Claimant argues that Dr. Smith’s opinion that Claimant should not lift more than 15 pounds “is clearly at odds with the residual functional capacity determination of the ALJ that the claimant could lift up to twenty pounds.” Doc.

No. 38, at 15. Claimant argues that the ALJ erred in not indicating the weight assigned to Dr. Smith’s opinion and, therefore, it is impossible to know whether the ALJ’s decision is supported by substantial evidence. Id., at 15-16. In response, the Commissioner argues that Dr. Smith’s post-surgical treatment recommendation is not a “medical opinion” as that term is defined in the regulations and does not rise to the level of an impairment-related limitation. Doc. No. 38, at 18-19. The Commissioner points to the fact that the fifteen-pound restriction is listed in the “treatment” section of Dr. Smith’s records, and was part of the first follow-up examination after Claimant’s surgery. Id., at 18-19. The Commissioner also argues that, even if Dr. Smith issued a “medical opinion,” the ALJ’s failure to address it was harmless. Id., at 20-21. Pursuant to the new regulations which govern this case, a “medical opinion” is defined as statements “from a medical source about what [the claimant] can still do despite [her] impairment(s) and whether [the claimant] ha[s] one or more impairment-related limitations or restrictions” regarding her ability to perform physical demands (such as sitting, standing, walking, reaching, and handling, among others) and mental demands of work activities (such as understanding,

remembering, and maintaining concentration, persistence, and pace). 20 C.F.R. §§ 404.1513(a)(2), 416.913(a)(2). A “medical opinion” does not include “judgments about the nature and severity of [the claimant’s] impairments, . . . medical history,

clinical findings, diagnosis, treatment prescribed with response, or prognosis.” 20 C.F.R. § 404.1513(a)(3) (defining these categories of information as “other medical evidence”). See also Staheli v. Kijakazi, No. 1:20-cv-00159-JCB, 2021 WL 5495694, at *3 (D. Utah Nov. 23, 2021) (“[T]he elements of a ‘medical opinion’ [under the new regulations] are: (1) a statement; (2) from a medical source; (3) about what Plaintiff can still do despite her impairments; and (4) whether Plaintiff has one or more impairment-related limitations or restrictions based on several enumerated abilities. Because the regulation uses the word ‘and’ between the third and fourth elements, the court presumes that ‘and’ is used in its ‘ordinary, conjunctive meaning.’” (citing Am. Bankers Ins. Grp. v. United States, 408 F. 3d 1328, 1332 (11th Cir. 2005))). Upon review, Dr. Smith’s notes related to the lifting limitation, even though contained in the “treatment” section of his records, constitute a medical opinion.

As discussed above, the new regulations define “medical opinion” as a statement from a medical source about what a person can or cannot do despite an impairment, as well as a discussion of any functional limitations or restrictions, including lifting restrictions. 20 C.F.R. § 404.1513(a)(2)(i). There is no mention in the regulations that such statements have to be made in a specific format, or in a specific section of a medical source’s records. And in Dr. Smith’s February 15, 2019 treatment notes, Dr. Smith clearly provides a lifting limitation of no more than 15 pounds – i.e., a statement about what Claimant can do despite her impairment related to a specific functional limitation. As such, Dr. Smith’s February 15, 2019 notes constitute a “medical opinion.” See Milbry v. Comm’r of Soc. Sec., No. 6:20-cv-1427-DNF, 2021 WL 4305092, at *5 (M.D. Fla. Sept. 22, 2021) (finding that physician assistant’s recommendation following an initial neurosurgery evaluation that included a recommendation of restricting the plaintiff to lifting no more than 15 pounds, no overhead work, and no prolonged sitting, standing, or twisting qualified as a

“medical opinion” under the new regulations because impairment related limitations and restrictions were provided). See also Moore v. Comm’r of Soc. Sec.,⁶:16-cv-2075-Orl-41GJK, 2017 WL 8809568, at *3-4 (M.D. Fla. Nov. 7, 2017) (finding, under previous regulations, that post-surgery treatment notes regarding the effects of shoulder surgery, that contained lifting restrictions, qualified as a medical opinion).¹⁰

It is undisputed that the ALJ failed to give any consideration to Dr. Smith’s medical opinion as set forth in the February 25, 2019 treatment notes. This alone constitutes reversible error. See 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2) (obligating the Commissioner to “explain how [she] considered the supportability and consistency factors for a medical source’s medical opinions or prior administrative medical findings in [the] decision”). See also Brown v. Comm'r of Soc. Sec., No. 6:20-cv-840-GJK, 2021 WL 2917562, at *4 (M.D. Fla. July 12, 2021) (reversing decision under the new regulations where the ALJ did not address the supportability and consistency of opinions from two medical sources); Diaz-Ortiz, 2021 WL 4205850, at *4 (“Supportability and consistency constitute the most

February 25, 2019 medical opinion, any explanation the Commissioner now provides would be a post hoc rationalization, which the Court cannot consider. Pierson, 2020 WL 1957597, at *6 (“[T]he undersigned will not rely on the Commissioner’s post-hoc arguments” because “[t]o do so would necessarily require the undersigned to reweigh the evidence.”). See also Dempsey v. Comm’r of Soc. Sec., 454 F. App’x 729, 732 (11th Cir. 2011) (citations and internal quotation marks omitted) (“[W]hen the ALJ fails to state with sufficient clarity the grounds for his evidentiary decisions, we will not affirm simply because some rationale might have supported the ALJ’s conclusion, and instead remand for further findings at the administrative hearing level.”).¹¹ In any event, the Court finds that the ALJ’s error was not harmless because the RFC propounded by the ALJ contains a 20-pound lifting restriction, which clearly contradicts the 15-pound lifting restriction opined by Dr. Smith. See Moore, 2017 WL 8809568, at *3 (finding no harmless error “because the limitations found in the treatment notes are more restrictive than those found in the RFC.”). Moreover, the ALJ ignored Dr. Smith’s opinion in formulating his hypothetical posed to the

VE, thus implicating Claimant’s third assignment of error. For these reasons, the Court agrees with Claimant that the ALJ’s failure to consider Dr. Smith’s February 25, 2019 opinion constitutes reversible error. B. Remaining Assignments of Error & Remand Claimant also argues that the ALJ erred in failing to include Claimant’s need for a cane in the RFC determination and that the hypothetical posed to the VE did not adequately reflect Claimant’s limitations. Doc. No. 38, at 16-18, 23-25. Given that remand is warranted on Claimant’s first assignment of error, the Court need not consider these additional arguments because on remand, the ALJ will necessarily also have to reconsider the entire record. See Diorio v. Heckler, 721 F. 2d

V. CONCLUSION

Based on the foregoing, it is ORDERED that: 1. The final decision of the Commissioner is REVERSED and REMANDED for further proceedings pursuant to sentence four of 42 U.S.C. §

405(g). 2. The Clerk of Court is DIRECTED to enter judgment in favor of Claimant and against the Commissioner, and thereafter, to CLOSE the case. DONE and ORDERED in Orlando, Florida on August 2, 2022.

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LESLIE AN PRICE

UNITED STATES MAGISTRATE JUDGE

Copies furnished to: Counsel of Record Unrepresented Parties

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