CRUZ

v.

COMMISSIONER OF SOCIAL SECURITY

Defendant. /

MEMORANDUM OPINION AND ORDER1

THIS CAUSE is before the Court on Plaintiff’s appeal of an administrative decision denying his application for a period of disability, disability insurance benefits (“DIB”), and Supplemental Security Income (“SSI”). Plaintiff alleges he became disabled on January¹, 2015. (Tr. 14.) A hearing was held before the assigned Administrative Law Judge (“ALJ”) on March², 2017, at which Plaintiff was represented by counsel. (Tr. 28-51.) The ALJ found Plaintiff not disabled from January¹, 2015, the alleged disability onset date, through May 23, 2017, the date of the decision.² (Tr. 22.) Plaintiff has exhausted his available administrative remedies and the case is properly before the Court. Based on a

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 the ALJ erred by failing to account for Plaintiff’s need for a service animal in her RFC findings and “since the ALJ did not include this fact in the RFC[,] there is no vocational evidence supporting the ALJ’s step⁴ determination that Plaintiff can return to his past jobs.” (Doc. 16 at 4, 9.) Plaintiff urges the Court to remand for further administrative proceedings and a rehearing. (Id. at 12.) Defendant counters that the ALJ applied the correct legal standards and that her decision is supported by substantial evidence. (Doc. 17 at 14.) The Court finds that the ALJ’s decision is not supported by substantial evidence, and, therefore, remands the case for further proceedings.

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), 416.920(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),

416.927(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), 416.927(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 his 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.

Id. 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), 416.929(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. See also

SSR 16-3p1 (stating that after the ALJ finds a medically determinable impairment exists, the ALJ must analyze “the intensity, persistence, and limiting effects of the individual’s symptoms” to determine “the extent to which an individual’s symptoms limit his or her ability to perform work-related activities”). As stated in SSR 16-3p:

In considering the intensity, persistence, and limiting effects of an individual’s symptoms, [the ALJ must] examine the entire case record, including the objective medical evidence; an individual’s statements about the intensity, persistence, and limiting effects of symptoms; statements and other information provided by medical sources and other persons; and any other relevant evidence in the individual’s case record. . . . In evaluating an individual’s symptoms, it is not sufficient for our adjudicators to make a single, conclusory statement that “the individual’s statements about his or her symptoms have been considered” or that “the statements about the individual’s symptoms are (or are not) supported or consistent.” It is also not enough for our adjudicators simply to recite the factors described in the regulations for evaluating symptoms.2 The determination or decision

1 SSR 16-3p rescinded and superseded SSR 96-7p, eliminating the use of the term “credibility,” and clarifying that “subjective symptom evaluation is not an examination of an individual’s character.” SSR 16-3p. 2 These factors include: (1) a claimant’s daily activities; (2) the location, duration, frequency, and intensity of the claimant’s pain or other symptoms; (3) any precipitating and aggravating factors; (4) the type, dosage, effectiveness, and side effects of any medication taken to alleviate the claimant’s pain or other symptoms; (5) any treatment, other than medication, received by the claimant to relieve the pain or other symptoms; (6) any measures (other than treatment) used to relieve the pain or other symptoms (e.g., lying flat on his or her back, standing for 15 to 20 minutes every hour, or sleeping must contain specific reasons for the weight given to the individual’s symptoms, be consistent with and supported by the evidence, and be clearly articulated so the individual and any subsequent reviewer can assess how the adjudicator evaluated the individual’s symptoms. . . . In evaluating an individual’s symptoms, our adjudicators will not assess an individual’s overall character or truthfulness in the manner typically used during an adversarial court litigation. The focus of the evaluation of an individual’s symptoms should not be to determine whether he or she is a truthful person. Rather, our adjudicators will focus on whether the evidence establishes a medically determinable impairment that could reasonably be expected to produce the individual’s symptoms and given the adjudicator’s evaluation of the individual’s symptoms, whether the intensity and persistence of the symptoms limit the individual’s ability to perform work-related activities[.]

SSR 16-3p.

“[A]n individual’s attempts to seek medical treatment for symptoms and to follow treatment once it is prescribed” will also be considered “when evaluating whether symptom intensity and persistence affect the ability to perform workrelated activities.” Id. “[I]f the frequency or extent of the treatment sought by an individual is not comparable with the degree of the individual’s subjective complaints, or if the individual fails to follow prescribed treatment that might improve symptoms, [the adjudicator] may find the alleged intensity and persistence of an individual’s symptoms are inconsistent with the overall evidence of record.” Id. However, the adjudicator “will not find an individual’s on a board); and (7) any other factors concerning the claimant’s functional limitations and restrictions due to pain or other symptoms. 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3); SSR 16-3p. symptoms inconsistent with the evidence in the record on this basis without considering possible reasons he or she may not comply with treatment or seek treatment consistent with the degree of his or her complaints.” Id. In considering an individual’s treatment history, the adjudicator may consider, inter alia, one or more of the following: • That the individual may have structured his or her activities to minimize symptoms to a tolerable level by avoiding physical activities or mental stressors that aggravate his or her stressors; • That the individual may receive periodic treatment or evaluation for refills of medications because his or her symptoms have reached a plateau; • That the individual may not agree to take prescription medications because the side effects are less tolerable than the symptoms; • That the individual may not be able to afford treatment and may not have access to free or low-cost medical services; • That a medical source may have advised the individual that there is no further effective treatment to prescribe or recommend that would benefit the individual; • That due to various limitations (such as language or mental limitations), the individual may not understand the appropriate treatment for or the need for consistent treatment.

Id. B. The ALJ’s Decision At step one of the five-step sequential evaluation process,³ the ALJ found that Plaintiff had not engaged in substantial gainful activity since the alleged onset date of January¹, 2015. (Tr. 16.) At step two, the ALJ found that Plaintiff

(Tr. 18-19.) In making this finding, the ALJ considered Plaintiff’s subjective complaints, objective medical evidence, opinion evidence, and medical treatment records. (Tr. 19-21.) The ALJ considered Plaintiff’s testimony that: His emotional problems began in 2012 when he discovered his father-in-law had molested his son. The claimant stated that his father-in-law confronted claimant’s family with a gun, and the claimant had to shoot and kill his father[-]in[-]law in self-defense. Since then, the claimant stated that he sees his father-in-law’s face all the time, and has nightmares and flashbacks. The claimant stated he is hypervigilant and has to be with his kids all the time to protect them. The claimant testified that he last worked in 2015, and had to leave because he would have breakdowns at work. He stated he has trouble working around others. In his adult function report, the claimant stated that he cannot control his emotions at work, and has cried at his job sites (Exhibit 4E). (Tr. 19.) The ALJ also found that Plaintiff’s “medically determinable impairments could reasonably be expected to produce the above alleged symptoms; however, the [Plaintiff’s] statements concerning the intensity, persistence and limiting effects of these symptoms [were] not entirely consistent with the medical evidence and other evidence in the record . . . .” (Id.) The ALJ recognized that Plaintiff’s impairments and symptoms affected his ability to work but “only to the extent they [could] reasonably be accepted as consistent with the objective medical and other evidence.” (Id.)

The ALJ also concluded that the record supported “some mental limitations due to Plaintiff’s depression, anxiety, and PTSD, but not to the extent that would preclude [Plaintiff] from performing all work.” (Tr. 20.) The ALJ also noted that although Plaintiff’s medical treatments for his mental impairments did not start until April 27, 2015, when he was diagnosed with PSTD, anxiety, and depression,

“[Plaintiff] stated that his mental impairments stemmed from an incident in 2012 when he fatally shot his father-in-law in self-defense.” (Id.) The ALJ further noted that: The claimant stated that he became unable to function adequately in the workplace, stating that if a boss or superior asked him to get [them] something, he would have flashbacks of his own stepfather commanding him to do something and that he would ostensibly react in an emotionally unstable manner (Exhibit 1F/6). The claimant stated he is fearful that his father-in-law’s family is looking to harm him. He stated that he is constantly on edge [] and prone to bouts of crying. He last worked for a construction company in March 2015, and was only able to hold the position for a week because he was unable to control his mood related problems. The claimant also has a felony history as a sex offender, and had to participate in a weekly sex offender group from the age of 17 to age 27. He stated that he tends to avoid social situations and is unable to participate in sports activities with his children due to his status as a sex offender. During a September 2015 consultative examination, the examiner noted that the claimant had a depressed mood.

(Id.) The ALJ then referred to a mental status evaluation finding that:

[Plaintiff] had good eye contact, was cooperative and motivated, was able to complete single and multistep commands without difficulty, had mild limitations in recent and remote memory, had clear and articulate speech, his thought process was clear and logical, and his attention and concentration was within normal limits (Exhibit 1F/6).

(Id.) The ALJ found that this mental status evaluation, which indicated that Plaintiff had “normal attention and concentration and only mildly impaired memory,” supported the ALJ’s determination that “despite some depression and PTSD, [Plaintiff] still had the mental capacity to perform some work-related activities.” (Id.) The ALJ also noted that more recent treatment records showed that Plaintiff’s “mental impairments [could] be controlled with medication” and that, “with medication compliance, his mood and symptoms [could] be controlled.” (Id.) The ALJ pointed to a February 2016 examination record, noting that Plaintiff “was not currently a danger to himself or others, and [was] stable for ongoing outpatient management,” and also to a June 2016 examination record, noting that Plaintiff “was cooperative, calm, pleasant, had intact cognition, had normal recent and remote memory, and had fair insight and judgment.” (Id.) The ALJ then noted that Plaintiff was “undergoing therapy for his mental impairments, and was given an emotional support dog.”⁴ (Tr. 20-21.) The ALJ determined that the medical examinations also showed that Plaintiff had “mostly normal cognitive functioning and that his mental health symptoms [could] be controlled with medication compliance” such that, “despite Plaintiff’s history of depression, anxiety, and PTSD, he still ha[d] the mental capacity to perform some workrelated activities.” (Tr. 21.) The ALJ then found that Plaintiff was able to engage in “a wide range of activities of daily living such as driving, taking care of his kids, and taking his family on vacation.”

With respect to the opinion evidence, the ALJ accorded great weight to the medical opinion of State agency mental health consultant Renee McPherson- Salandy, Ph.D.⁵ (Id.) The ALJ also pointed to Dr. McPherson-Salandy’s

(Id.) The ALJ then determined that, based on Plaintiff’s testimony, Plaintiff’s earning records, and the testimony of the vocational expert (“VE”), Plaintiff was able to perform his past relevant work of cleaner II, construction worker II, and stucco mason, but could not perform self-employed work.⁶ (Id.) The ALJ noted

in an environment with minimal social interaction with the general public and co-workers and a supportive management style; [and] may have mild adaptive limitations due to mental health signs and symptoms[,] but possesses the capacity to make reasonable decisions and adapt to routine changes in [the] workplace (Exhibit 2A). (Tr. 21.)

C. Plaintiff’s Need for a Service Animal7

Plaintiff claims that the ALJ improperly failed to incorporate his need for a service animal into the RFC finding and, since the VE failed to account for the need for a service animal, the vocational testimony cannot be substantial evidence supporting the ALJ’s decision. (See Doc. 16 at 4, 9.) Specifically, Plaintiff argues that although the ALJ “acknowledged the evidence establishing Plaintiff’s need for a service animal, Tr. 20-21, without challenging Ms. Davidson’s judgment that Plaintiff needed it,” the ALJ failed “to discuss its significance in terms of Plaintiff’s work-related limitations as part of her RFC findings.” (Id. at 8.) Thus, Plaintiff asks the Court to reverse the ALJ’s decision and remand for further proceedings. Defendant counters that substantial evidence supports the ALJ’s decision where “the ALJ considered Plaintiff’s condition as a whole and concluded that his severe impairments were not disabling.” (Doc. 17 at 9.) Defendant also argues that “[i]n reaching this conclusion, the ALJ expressly noted that Plaintiff was given an emotional support dog, but implicitly determined that Plaintiff did not

Wash. Sept. 12, 2013) (finding a reversible error where the ALJ did not consider the vocational impact of plaintiff’s use of a service animal when “at least some evidence in the record” showed that “plaintiff’s use of a service dog [was]

McGehee, 386 F. Supp. 3d at 88. Here, although the ALJ acknowledged that Plaintiff used an emotional support dog (Tr. 20-21 (noting that Plaintiff was “undergoing therapy for his mental impairments, and was given an emotional support dog”)), she failed to analyze Plaintiff’s need for a support animal when assessing the RFC and in determining that Plaintiff could perform his prior jobs. The record reflects that Plaintiff’s treatment provider, Ms. Davidson, prescribed an emotional support animal as part of Plaintiff’s treatment.⁹ (See Tr. 326; see also 378 (noting that Plaintiff’s support dog helped him “keep calm in stressful situations” and had been “through everything” with him).) The record also reflects that Ms. Davidson determined that the service dog was medically necessary and specifically stated

378), the undersigned finds that the ALJ’s failure to explain why she rejected such probative evidence in assessing Plaintiff’s RFC constitutes a reversible error. Therefore, this case will be remanded for further proceedings. In light of this conclusion, the Court need not address Plaintiff’s remaining arguments. See Jackson v. Bowen, 801 F. 2d 1291, 1294 n.2 (11th Cir. 1986) (per curiam); Freese v. Astrue, 2008 WL 1777722, at *3 (M.D. Fla. Apr. 18, 2008). According, it is respectfully ORDERED:

1. The Commissioner's decision is REVERSED and REMANDED

pursuant to sentence four of 42 U.S.C. § 405(g), with instructions to the ALJ to: (a) re-consider vocationally relevant evidence concerning Plaintiff's need for a service dog; (b) re-evaluate Plaintiffs RFC assessment; and (c) conduct any further proceedings deemed appropriate. 2. The Clerk of Court is directed to enter judgment accordingly, terminate any pending motions, and close the file. 3. In the event that benefits are awarded on remand, any § 406(b) or § 1383(d)(2) fee application shall be filed within the parameters set forth by the Order entered in /n Re: Procedures for Applying for Attorney’s Fees Under 42 U.S.C. §§ 406(b) & 1383(d)(2), Case No.:⁶:12-mc-124-Orl-22 (M.D. Fla. Nov. 13, 2012). This Order does not extend the time limits for filing a motion for attorney’s fees under the Equal Access to Justice Act, 28 U.S.C § 2412. DONE and ORDERED in Jacksonville, Florida, on September 10, 2019.

UNITED STATES MAGISTRATE JUDGE

Copies to: Counsel of Record