SANPEDRO

v.

COMMISSIONER OF SOCIAL SECURITY

This is an appeal of the administrative denial of supplemental security income (SSI) and disability insurance benefits (DIB). See 42 U.S.C. §§ 405(g), 1383(c)(3). Plaintiff argues the Administrative Law Judge (ALJ) erred by discounting her treating physicians’ opinions regarding her work-related limitations. Plaintiff also contends that substantial evidence does not support the ALJ’s finding that Plaintiff stopped working to care for her adult son, who has a traumatic brain injury, and not because she was disabled. After considering Plaintiff’s arguments, Defendant’s response, and the administrative record (Docs. 16, 25), I find the ALJ applied the proper standards, and the decision that Plaintiff is not disabled is supported by substantial evidence. I affirm the ALJ’s decision.

A. Background

Plaintiff Cindy Caridad Sanpedro was born on January 8, 1968. (R. 24) She was 49 years old on her alleged disability onset date of January¹, 2017.1 (R. 15, 24) She is divorced

42 U.S.C. § 423(a)(1)(A). Plaintiff must show she was disabled on or before December 31, 2018. See Moore v. Barnhart, 405 F. 3d 1208, 1211 (11th Cir. 2005).

B. Standard of Review

To be entitled to DIB and/or SSI, a claimant must be unable to engage “in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” See 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A “‘physical or mental impairment’ is an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” See 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D). The Social Security Administration, to regularize the adjudicative process, promulgated detailed regulations that are currently in effect. These regulations establish a “sequential evaluation process” to determine whether a claimant is disabled. See 20 C.F.R. §§ 404.1520, 416.920. If an individual is found disabled at any point in the sequential review,

further inquiry is unnecessary. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). Under this process, the Commissioner must determine, in sequence, the following: (1) whether the claimant is currently engaged in substantial gainful activity; (2) whether the claimant has a severe impairment(s) (i.e., one that significantly limits her ability to perform work-related functions); (3) whether the severe impairment meets or equals the medical criteria of Appendix¹, 20 C.F.R. Part 404, Subpart P; (4) considering the Commissioner’s determination of claimant’s RFC, whether the claimant can perform her past relevant work; and (5) if the claimant cannot perform the tasks required of her prior work, the ALJ must decide if the claimant can do other work in the national economy in view of her RFC, age, education, and work experience. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). A claimant is entitled to benefits only if unable to perform other work. See Bowen v. Yuckert, 482 U.S. 137, 142 (1987); 20 C.F.R. § 404.1520(f), (g); 20 C.F.R. § 416.920(f), (g). In reviewing the ALJ’s findings, this Court must ask if substantial evidence supports those findings. See 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 390 (1971). The ALJ’s factual findings are conclusive if “substantial evidence consisting of relevant evidence as a reasonable person would accept as adequate to support a conclusion exists.” Keeton v. Dep’t of Health and Human Servs., 21 F. 3d 1064, 1066 (11th Cir. 1994) (citation and quotations omitted). The Court may not reweigh the evidence or substitute its own judgment for that of the ALJ even if it finds the evidence preponderates against the ALJ’s decision. See Bloodsworth v. Heckler, 703 F. 2d 1233, 1239 (11th Cir. 1983). The Commissioner’s “failure to apply the correct law or to provide the reviewing court with sufficient reasoning for determining the proper legal analysis has been conducted mandates reversal.” Keeton, 21 F. 3d at 1066 (citations omitted).

C. Discussion

1. Drs. Perdomo and Carbone’s opinions Plaintiff argues the ALJ erred in his consideration of the opinions of Plaintiff’s primary care physician Arles Perdomo, M.D. and her treating rheumatologist Gustavo Carbone, M.D. (Doc. 25 at 20-27). The Commissioner responds that the ALJ evaluated the medical source opinions in accordance with applicable regulations and properly found Drs. Perdomo and Carbone’s opinions unpersuasive (Id. at 27-42). I agree. Before March 27, 2017, Social Security Administration (“SSA”) regulations codified the treating physician rule, which required the ALJ to assign controlling weight to a treating physician’s opinion if it was well supported and not inconsistent with other record evidence. See 20 C.F.R. § 404.1527(c). Under the treating physician rule, if an ALJ assigned less than controlling weight to a treating physician’s opinion, he or she had to provide good cause for doing so. See Winschel v. Comm'r of Soc. Sec, 631 F. 3d 1176, 1178-79 (11th Cir. 2011). In this case, however, revised SSA regulations (published on January 18, 2017, and effective on March 27, 2017) apply because Plaintiff filed her claim on March¹, 2018. (R. 15) As the SSA explained, “under the old rules, courts reviewing claims tended to focus more on whether the agency sufficiently articulated the weight we gave treating source opinions, rather than on whether substantial evidence supports our final decision ... these courts, in reviewing final agency decisions, are reweighing evidence instead of applying the substantial evidence standard of review, which is intended to be highly deferential to us.” Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 5844, 5853 (Jan. 18, 2017); see also Schink v. Comm’r of Soc. Sec., 935 F. 3d 1245, 1259 n.4 (11th Cir. 2019). The new regulations require an ALJ to apply the same factors when considering the opinions from all medical sources. 20 C.F.R. § 404.1520c(a). As to each medical source, the ALJ must consider: (1) supportability; (2) consistency; (3) relationship with the claimant; (4) specialization; and (5) “other factors that tend to support or contradict a medical opinion or prior administrative medical finding.” 20 C.F.R. § 404.1520c(c). But the first two factors are the most important: “Under the new rule, the SSA will consider the persuasiveness of all medical opinions and evaluate them primarily on the basis of supportability and consistency.” Mackey v. Saul, 2020 WL 376995, at *4, n. 2 (D.S.C. Jan.⁶, 2020), citing 20 C.F.R. § 404.1520c(a),(c)(1)-(2) (while there are several factors ALJs must consider, “[t]he most important factors ... are supportability (paragraph (c)(1) of this section) and consistency (paragraph (c)(2) of this section).”). “Supportability” refers to the principle that “[t]he more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions or prior administrative medical finding(s) will be.” 20 C.F.R. § 404.1520c(c)(1). “Consistency” refers to the principle that “[t]he more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior administrative medical finding(s) will be.” 20 C.F.R. § 404.1520c(c)(2). Put differently, the

ALJ must analyze whether the medical source’s opinion is (1) supported by the source’s own records; and (2) consistent with the other evidence of record. See Cook v. Comm’r of Soc. Sec., No. 6:20-cv-1197-RBD-DCI, 2021 WL 1565832, at *3 (M.D. Fla. Apr.⁶, 2021), report and recommendation adopted, 2021 WL 1565162 (M.D. Fla. Apr. 21, 2021). The new regulations also change the standards the ALJ applies when articulating his or her assessment of medical source opinions. As mentioned above, an ALJ need not assign specific evidentiary weight to medical opinions based on their source. See Tucker v. Saul, No. 4:19-cv-759, 2020 WL 3489427, at *6 (N.D. Ala. June 26, 2020). While the ALJ must explain how he or she considered the supportability and consistency factors, the ALJ need not explain how he or she considered the other three factors.³ 20 C.F.R. § 404.1520c(b)(2). And, in assessing the supportability and consistency of a medical opinion, the regulations provide that the ALJ need only explain the consideration of these factors on a source-by-source basis – the regulations do not require the ALJ to explain the consideration of each opinion from the same source. See 20 C.F.R. § 404.1520c(b)(1). But Plaintiff argues that these new regulations do not eliminate the judicially-created treating physician rule – a longstanding requirement in this Circuit. See Winschel, 631 F. 3d at 1179; Beasley v. Comm’r of Soc. Sec., No. 2:20-cv-445-JLB-MRM, 2021 WL 4059895, at * 3-4 (M.D. Fla. Sept. 7, 2021). To be sure, district courts have diverged in their approaches. Compare Bevis v. Comm’r of Soc. Sec., No. 6:20-cv-579-LRH, 2021 WL 3418815, at *5 (M.D. Fla. Aug.⁵, 2021) (collecting cases and applying good cause standard “in the absence of binding or persuasive authority to the contrary” but noting it was non-issue – under both standards, ALJ’s opinion was substantially supported)⁴, with Miller v. Kijakazi, No. 4:20-cv-

656-GMB, 2021 WL 4190632 (N.D. Ala. Sept. 14, 2021) (citing Chevron, U.S.A., Inc. v. Nat’l Res. Defense Council, Inc., 467 U.S. 837, 845 (1984), and finding treating physician rule

Different providers at the UMHC clinic also treated Plaintiff every three months in 2019 for her type² diabetes and “Class² obesity due to excess calories without comorbidity in adult.” (R. 1482) This was followed in March 2020, with a one-paragraph letter from Dr. Carbone stating that Plaintiff “was well known to out rheumatology clinic at the University of Miami. Frequently due to her flares of pain[,] patient is unable to do simple activities or work related duties. We suggested to have a physical capacity evaluation for her disability claims, which is not congruent with Dr. Todorov’s evaluation.” (R. 1506) The ALJ reviewed these records and found Dr. Carbone’s March 2020 opinion unpersuasive. (R. 19) According to the ALJ, Dr. Carbone’s decision is inconsistent with other medical evidence, and “Dr. Carbone cited no evidence in support of his opinion.” (Id.) Substantial evidence supports this. Dr. Carbone’s and UMHC’s treatment records show relatively normal findings and document Plaintiff’s improvement with treatment. Despite that Dr. Carbone opined that Plaintiff cannot perform simple activities, Plaintiff’s treatment consisted of medication management (Plaintiff was taking Metformin and Cymbalta to control her diabetes) and encouragement to exercise. Dr. Carbone suggested a “physical capacity of evaluation” (R. 1506) but did not actually perform one or refer Plaintiff to another provider for one. Additionally, consultative examiner Eshan Kibria, D.O. examined Plaintiff in May 2018, and noted Plaintiff’s diagnosis of diabetes, fibromyalgia, cholesterolemia, hypertension, positive ANA testing, anemia, and chronic pain. Although Plaintiff had decreased range of motion in her lumber spine, Dr. Kibria observed that Plaintiff had full strength in her upper and lower extremities, full grip strength, and a normal gait. (R. 973) And non-examining medical expert Dr. Todorov (whom Dr. Carbone references in his letter), reviewed Plaintiff’s medical records as of September 2019, and completed a physical RFC evaluation. (R. 1083- 88) Dr. Todorov opined that Plaintiff can lift up to 10 pounds frequently, sit for up to seven hours per day, and walk for up three hours per day. (R. 1083-88) He answered interrogatories about Plaintiff’s impairments, stating her fibromyalgia appeared mild and her tests for connective tissue disease were inconclusive. (R. 1093) Considering these records, substantial evidence supports the ALJ’s evaluation of Dr. Carbone’s March 2020 opinion for supportability and consistency, in accordance with applicable regulations. Next is Plaintiff’s challenge to the ALJ’s consideration of Dr. Perdomo’s opinion. Dr. Perdomo is a primary care doctor who treated Plaintiff once during the relevant time, on December 9, 2019. (R. 1354) The physician noted Plaintiff’s complaints of widespread muscle pain and tenderness related to her fibromyalgia, with pain at 5 out of 10 on the pain scale. Plaintiff was taking Metformin and Cymbalta to control her diabetes and Flexeril “to control the episodes of fibromyalgia.” (Id.) She exhibited³ out of⁵ strength in her upper extremities and⁴ out of⁵ strength in her lower extremities. Dr. Perdomo ordered blood work and advised Plaintiff to eat healthier. (Id.) That same day, Dr. Perdomo completed a physical RFC form at Plaintiff’s request. (R. 1357-58) He opined that Plaintiff can stand and walk for one hour at a time for a total of two hours during an eight hour workday and can sit for one hour at a time for up to three hours total. She can lift no amount of weight, and she cannot bend, squat, or climb but can occasionally crawl. (Id.) The ALJ found Dr. Perdomo’s RFC evaluation unpersuasive, because “[t]he opinion cites no supporting evidence, and it is inconsistent with the claimant’s normal physical examinations throughout the relevant period, as well as her normal diagnostic testing.” (R. 24) Again, substantial evidence supports this.

Although Plaintiff characterizes Dr. Todorov’s interrogatory responses and physical RFC evaluation as the only outlier (Doc. 25 at 23), other treating providers, including Plaintiff’s cardiologist and hematologist, indicated she had no muscle or joint tenderness and normal range of motion in her extremities, normal strength, and a normal gait. (R. 936, 951,

955-56, 1042, 1045) On January 16, 2019, hematologist Rami Komrokji, M.D. noted Plaintiff had “no back pain, no neck pain, no joint pain, no muscle pain” and was “fully ambulatory and able to carry out light work.” (R. 1084) She had normal range of motion and normal strength. (R. 1112) An echocardiogram performed on April 25, 2018, was within normal range and showed no changes from a previous test performed in 2013. (R. 1227-28) In July 2018, her bone marrow testing was normal. (R. 1040) And her diabetes was “well controlled on medication” in April 2019. (R. 1251) These records contradict Dr. Perdomo’s very restrictive RFC. Plaintiff’s first argument fails. 2. ALJ’s finding regarding the reason Plaintiff stopped working In a short argument citing no legal authority (Doc. 25 at 43), Plaintiff argues that the

ALJ committed remandable error when he stated “[t]he record indicates the claimant left work to care for her son, who is disabled, which is inconsistent with the causal connection alleged between the claimant’s impairments and her present purported inability to work.” (R. 23) In response, the Commissioner emphasizes that the ALJ properly considered Plaintiff’s reported daily activities, including her care for her son, in deciding Plaintiff can perform a reduced range of light work. I agree with the Commissioner; irrespective of how the parties frame the argument, the ALJ properly considered Plaintiff’s care for her son. Under the regulations, the ALJ is tasked with considering all evidence in the case record, including evidence of Plaintiff’s daily activities, and assessing Plaintiff’s condition as a whole. See 20 C.F.R. §§ 404.1520, 404.1520c, 404.1529, 404.1545, 416.921, 416.920c, 416.929, 416.945. In May 2018, Plaintiff told nurse practitioner Sarah Lindsey, ARNP, that she was the primary caregiver for her son. (R. 950) In April 2018, Plaintiff told Dr. Ediriweera that she “lives at home with her disabled son for whom she primary caretakes.” (R. 922) The

ALJ, in accordance with the regulations, considered this activity in assessing Plaintiff’s RFC. At bottom, substantial record evidence supports the finding that Plaintiff continued as her son’s primary caregiver despite her allegedly disabling impairments. At this point, I reiterate that, when reviewing an ALJ’s decision, my job is to determine whether the administrative record contains enough evidence to support the ALJ’s factual findings. See 42 U.S.C. § 405(g); Biestek v. Berryhill, ___ U.S. ___; 139 S.Ct. 1148, 1154 (2019). “And whatever the meaning of ‘substantial’ in other contexts, the threshold for such evidentiary sufficiency is not high.” Id. In other words, I am not permitted to reweigh the evidence or substitute my own judgment for that of the ALJ even if I find the evidence preponderates against the ALJ’s decision. See

Bloodsworth v. Heckler, 703 F. 2d 1233, 1239 (11th Cir. 1983).

D. Conclusion

For the reasons stated above, the ALJ’s decision is supported by substantial evidence. It is ORDERED: (1) The ALJ’s decision is AFFIRMED; and

(2) The Clerk of Court is directed to enter judgment for Defendant and close the case. DONE and ORDERED in Tampa, Florida on April 29, 2022.

MARK A. PIZZO ee

UNITED STATES MAGISTRATE JUDGE