NAWROCKI

v.

COMMISSIONER OF SOCIAL SECURITY

KILOLO KIJAKAZI, Acting Commissioner of Social Security,

Defendant. /

OPINION AND ORDER1

I. Status

Thomas J. Nawrocki (“Plaintiff”) is appealing the Commissioner of the Social Security Administration’s (“SSA(’s)”) final decision denying his claims for disability insurance benefits (“DIB”) and supplemental security income (“SSI”). Plaintiff’s alleged inability to work is the result of chronic pain throughout his body (worse in the back), bipolar disorder, schizophrenia, rhabdomyolysis, and inflammation of all joints. Transcript of Administrative Proceedings (Doc. No. 8; “Tr.” or “administrative transcript”), filed March 16, 2022, at 127, 136, 148, 168, 315.

October 20, 2018 in the DIB application and October 19, 2018 in the SSI application. Tr. at 288 (DIB), 282 (SSI). The applications were denied initially, Tr. at 127-35, 145, 189, 197-99 (DIB); Tr. at 136-44, 146, 190, 200-02 (SSI), and upon reconsideration, Tr. at 147-66, 187, 191, 193, 211-23 (DIB); Tr. at 167-86,

188, 194, 196, 224-36 (SSI).³ On March 16, 2021, an Administrative Law Judge (“ALJ”) held a hearing, during which he heard from Plaintiff, who was represented by counsel, and a vocational expert (“VE”). 4 Tr. at 60-102. During the hearing, the ALJ recognized that Plaintiff had amended his alleged disability onset date to August 27, 2019. Tr. at 63; see Tr. at 364. On May 24, 2021, the ALJ issued a Decision finding Plaintiff not disabled through the date of the Decision. See Tr. at 34-54.5

Thereafter, Plaintiff requested review of the Decision by the Appeals

“assess[ing Plaintiff’s] ability to interact with others and ability to adapt and care for himself.” Memorandum of Law (Doc. No. 15; “Pl.’s Mem.”), filed May 16, 2022, at 2, 6, 9 (emphasis and capitalization omitted). On August¹¹, 2022, Defendant filed a Memorandum in Support of the Commissioner’s Decision (Doc. No. 19; “Def.’s Mem.”) addressing the issues raised by Plaintiff. After a thorough review of the entire record and consideration of the parties’ respective arguments, the undersigned finds that the Commissioner’s final decision is due to be reversed and remanded for reconsideration of Dr. Prickett’s prior administrative medical findings and opinion. On remand,

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, 416.920; see also Simon v. Comm’r, Soc. Sec. Admin.,⁷ F. 4th 1094, 1101-02 (11th Cir. 2021)

the burden shifts to the Commissioner. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). Here, the ALJ followed the five-step inquiry. See Tr. at 37-53. At step one, the ALJ determined that Plaintiff “has not engaged in substantial gainful activity since October 20, 2018, the alleged onset date.”⁸ Tr. at 37 (emphasis and citation omitted). At step two, the ALJ found that Plaintiff “has the following severe impairments: lumbar spondylosis, substance abuse disorder, rhabdomyolysis, lower left foot drop, cervical disorder, hepatic steatosis,

schizoaffective disorder, and bipolar disorder.” Tr. at 37 (emphasis and citation omitted). At step three, the ALJ found that Plaintiff “does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 [C.F.R.] Part 404, Subpart P,

Appendix 1.” Tr. at 38 (emphasis and citation omitted). The ALJ determined that Plaintiff has the following residual functional capacity (“RFC”): [Plaintiff can] perform light work as defined in 20 CFR [§§] 404.1567(b) and 416.967(b) with exceptions. [Plaintiff] can occasionally lift twenty pounds and frequently lift/carry ten pounds. He can stand/walk for six hours in an eight-hour workday and sit

III. Standard of Review

This Court reviews the Commissioner’s final decision as to disability pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). 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 the ALJ erred in evaluating the prior administrative medical findings by non-examining psychologist Jeffrey Prickett, Psy.D. Pl.’s Mem. at 2-6. According to Plaintiff, the ALJ, having found Dr. Prickett’s opinion to be “persuasive,” should have included in the RFC all of the mental limitations set forth in the opinion but did not. Id.; see Tr. at 51-52 (ALJ addressing “State Agency reviewing consultants,” which includes Dr. Prickett’s opinion). Particularly, Plaintiff contends the ALJ left out a critical limitation that Plaintiff would “need an understanding supervisor and setting that minimizes interaction with the general public and coworkers.” Pl.’s Mem. at 2-6; Tr. at 164 (Dr. Prickett’s opinion). Plaintiff also takes issue with the ALJ’s alleged failure to address the required factors of supportability and consistency. Id. at 2-6. Responding, Defendant argues the ALJ was not required to adopt the opinion verbatim, even after the ALJ found it to be persuasive. Def.’s Mem. at 5-9.9 Defendant asserts the ALJ properly addressed the required factors, and also contends the ALJ’s RFC finding is supported by substantial evidence. Id. at 10.

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,

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”; and 4) 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) or prior administrative medical finding(s), including those from [the claimant’s] medical sources.” 20 C.F.R. § 404.1520c(a).¹⁰ “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. 2022).

“[c]onsistency”; (3) “[r]elationship with the claimant”; (4) “[s]pecialization”; and (5) other factors, such as “evidence showing a medical source has familiarity with the other evidence in the claim or an understanding of [the SSA’s] disability program’s policies and evidentiary requirements.” 20 C.F.R. § 404.1520c(c). Supportability and consistency are the most important factors, and the ALJ must explain how these factors were considered. 20 C.F.R. § 404.1520c(b)(2). Generally, the ALJ is not required to explain how he or she evaluated the remaining factors. 20 C.F.R. § 404.1520c(b)(2). However, if the

ALJ “find[s] that two or more medical opinions . . . about the same issue are both equally well-supported . . . and consistent with the record . . . but are not exactly the same, [the ALJ must] articulate how [he or she] considered the other most persuasive factors . . . .” 20 C.F.R. § 404.1520c(b)(3).11

Here, relevant to the issue on appeal, Dr. Prickett assigned a number of mental limitations, including the need to have “an understanding supervisor and setting that minimizes interaction with the general public and coworkers.”

While this portion of the RFC may have sufficed to account for Dr. Prickett’s limitation to “minim[al]” interaction with the public and coworkers, Tr. at 164, the RFC said nothing about needing an understanding supervisor or anything of the sort, see Tr. at 40. Importantly, Plaintiff’s counsel asked the VE at the hearing whether a person who “has difficulty with holding their anger and their temper” would have a problem with “ability to maintain employment.” Tr. at 99-100. In response, the VE said in pertinent part, “I’m assuming you’re talking about anger directed at supervisors. The extent of it is usually it’s a once and done situation.” Tr. at 100. In other words, it appears the VE was testifying that anger or a temper toward a supervisor would preclude employment. Together with Dr. Prickett’s assigned limitation and the rest of the evidence in the file that supports such a limitation, the VE’s testimony calls into question whether Plaintiff would be employable had the ALJ accepted the assigned limitation. Because the ALJ did not recognize the limitation Dr. Prickett assigned or otherwise discuss it when assigning the RFC, judicial review is frustrated. Reversal and remand is required for the ALJ to reevaluate

Dr. Prickett’s opinion.

V. Conclusion

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) and § 1383(c)(3), REVERSING the Commissioner’s final decision and REMANDING this matter with the following instructions:

(A) Reconsider the opinion of Dr. Prickett consistent with the applicable Regulations;
(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 these claims properly.

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

DONE AND ORDERED in Jacksonville, Florida on March 22, 2023.

Verge Boo KAS

JAMES R. KLINDT

United States Magistrate Judge kaw Copies: Counsel of Record