MCDERMOTT

v.

COMMISSIONER OF SOCIAL SECURITY

Jeremy McDermott requests judicial review of a decision by the Commissioner of Social Security (Commissioner) denying his claim for disability insurance benefits (DIB) and Supplemental Security Income (SSI) under the Social Security Act, 42 U.S.C. Section 405(g). After reviewing the record, including a transcript of the proceedings before the Administrative Law Judge (ALJ), the administrative record, and the parties’ joint memorandum, the Commissioner’s decision is REMANDED.

I. PROCEDURAL HISTORY

Mr. McDermott applied for DIB and SSI on March 21, 2018 and March 22, 2018, respectively, and alleged disability beginning on July 6, 2016. (Tr. 99, 128, 218–224, 209–214). Disability examiners denied Mr. McDermott’s applications initially and after reconsideration. (Tr. 63, 76). At Mr. McDermott’s request, the ALJ held a hearing on December⁵, 2019. (Tr. 37– 83). The ALJ issued an unfavorable decision to Mr. McDermott on January 16,

2020. (Tr. 17–36). On September 16, 2020, the Appeals Council denied Mr. McDermott’s request for review, making the ALJ’s decision final. (Tr. 6–11). Mr. McDermott requests judicial review of the Commissioner’s final decision. (Doc. 1).

II. NATURE OF DISABILITY CLAIM

A. Background

Mr. McDermott was thirty-nine years old on his alleged onset date of July 6, 2016 and forty-one years old the date he applied for DIB and SSI on

March 21, 2018 and March 22, 2018. (Tr. 84, 218). Mr. McDermott has some high school education and has past relevant work as a landscaper and pizza delivery driver. (Tr. 110).

B. Summary of the Decision

The ALJ must follow five steps when evaluating a claim for disability.¹ 0F 20 C.F.R. §§ 404.1520(a), 416.920(a). First, if a claimant is engaged in substantial gainful activity,² he is not disabled. 20 C.F.R. §§ 404.1520(b), 1F

(Id.). Based on these findings and the testimony of a vocational expert (VE), the ALJ determined Mr. McDermott could not perform his past relevant work. (Tr. 30). The ALJ then determined Mr. McDermott could perform other jobs existing in significant numbers in the national economy, specifically as a

III. ANALYSIS

A. Standard of Review

Review of the ALJ’s decision is limited to reviewing whether the ALJ applied correct legal standards and whether substantial evidence supports his findings. McRoberts v. Bowen, 841 F. 2d 1077, 1080 (11th Cir. 1988); Richardson v. Perales, 402 U.S. 389, 390 (1971). Substantial evidence is more than a mere scintilla but less than a preponderance. Dale v. Barnhart, 395 F. 3d

1206, 1210 (11th Cir. 2005) (citation omitted). In other words, there must be sufficient evidence for a reasonable person to accept as enough to support the conclusion. Foote v. Chater, 67 F. 3d 1553, 1560 (11th Cir. 1995) (citations omitted). The Supreme Court recently explained, “whatever the meaning of

‘substantial’ in other contexts, the threshold for such evidentiary sufficiency is not high.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019). A reviewing court must affirm a decision supported by substantial evidence “even if the proof preponderates against it.” Phillips v. Barnhart, 357

F. 3d 1232, 1240 n.8 (11th Cir. 2004) (citations omitted). The court must not make new factual determinations, reweigh evidence, or substitute its judgment for the Commissioner’s decision. Id. at 1240 (citation omitted). Instead, the court must view the whole record, considering evidence favorable and unfavorable to the Commissioner’s decision. Foote, 67 F. 3d at 1560; see also

Lowery v. Sullivan, 979 F. 2d 835, 837 (11th Cir. 1992) (citation omitted) (stating that the reviewing court must scrutinize the entire record to determine the reasonableness of the Commissioner’s factual determinations).

B. Issue on Appeal

Mr. McDermott raises one issue on appeal: that the ALJ erred in evaluating Mr. McDermott’s RFC. (Doc. 25, pp. 11–22). Mr. McDermott argues the ALJ did not properly consider the persuasiveness of the medical opinions of Mary Elizabeth Kasper, Ph.D., Pascal Bordy, M.D., James Levasseur, Ph.D.,

Lynn R. Bernstein, Ph.D., and Phillip Matar, M.D. (Id. at 11–20). Mr. McDermott also argues the ALJ erred in failing to include noise limitations, mental limitations, and more rigorous hand limitations in the RFC. (Id. at 20– 22).

Under SSA regulations, the ALJ “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 [claimant’s own] medical sources.” 20 C.F.R. § 404.1520c(a); 416.920c(a). Instead, the ALJ must evaluate each medical opinion with consideration of the following five factors: (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); 416.920c(c). The ALJ is specifically required to consider the factors of supportability and consistency for each medical opinion. 20 C.F.R. § 404.1520c(b)(2); 416.920c(b)(2). Mr. McDermott argues the ALJ erred in evaluating Dr. Levasseur’s and Dr. Matar’s medical opinions because the ALJ “articulated no reasons” for finding Dr. Levasseur’s and Dr. Matar’s medical opinions only “mostly persuasive.” (Doc. 25, pp. 19–20) (citing (Tr. 28–29)). Mr. McDermott is correct that the ALJ failed to adequately adjudge the supportability and consistency of Dr. Levasseur’s and Dr. Matar’s medical opinions.

Dr. Levasseur’s evaluation of Mr. McDermott’s medical history included the conclusions that Mr. McDermott had mild limitation in understanding, remembering, or applying information, moderate limitation in interacting with others, moderate limitation in concentrating, persisting, or maintaining pace,

and moderate limitation in adapting or managing oneself. (Tr. 118). The ALJ concluded Dr. Levasseur’s evaluation was mostly persuasive, but the ALJ increased Mr. McDermott’s limitation in understanding, remembering, or applying information from mild to moderate based on a vocational rehabilitation test that reported Mr. McDermott’s verbal IQ score of 75. (Tr. 28; 346). The Commissioner argues the ALJ determined Dr. Levasseur’s opinion was “persuasive based on the supportability and consistency with the overall objective findings.” (Doc. 25, p. 25). However, the ALJ’s opinion simply summarizes Dr. Levasseur’s evaluation of Mr. McDermott’s medical history with no attempt at explaining how supported or consistent Dr. Levasseur’s medical opinions are by the rest of the medical evidence in the record. Nor does the ALJ explain how the reported verbal IQ score of 75 necessitates a moderate limitation on Mr. McDermott’s ability to understand, remember, and apply information or how that moderate limitation comports with the rest of the medical evidence in the record. Thus, “the Court is frustrated in reviewing whether the ALJ’s consideration of this opinion was proper.” Tookes v. Comm’r of Soc. Sec., No. 6:21-cv-1159-DCI, 2022 WL 1665447, at *2 (M.D. Fla. May 25, 2022). Since the ALJ failed to adequately discuss the supportability and consistency of Dr. Levasseur’s medical opinions, this court cannot conclude the

ALJ’s “lack of explicit consideration” constitutes harmless error. Id. See also Moore v. Barnhart, 405 F. 3d 1208, 1214 (11th Cir. 2005) (“Because the ALJ’s decision lacks consideration of these factors and their impact on his ultimate conclusion as to [the] RFC, we cannot even evaluate the Commissioner’s contention that the ALJ’s error was harmless”). The ALJ’s analysis of Dr. Matar’s medical opinion suffers from a similar flaw. Like with Dr. Levasseur, the ALJ concluded Dr. Matar’s medical opinion that Mr. McDermott “could perform medium functional work activities” and “was limited in fingering and feeling to the right” was “mostly persuasive.” (Tr. 29) (citing (Tr. 121)). But the ALJ again did not describe why these conclusions are persuasive or how these conclusions align with other medical evidence in the record. The ALJ’s failure to apply the Section 404.1520c(c) and 416.920c(c) factors to Dr. Levasseur’s and Dr. Matar’s medical opinions warrants remand. On remand, the ALJ should ensure his consideration of the persuasiveness of each medical opinion includes an application and explanation of the Section 404.1520c(c) and 416.920c(c) factors, focusing on the supportability and consistency factors..⁵

IV. CONCLUSION

For the reasons stated, the Commissioner’s decision is REMANDED, and the Clerk is directed to enter judgment in favor of the plaintiff. ORDERED in Tampa, Florida on June 18, 2022. Aranda. Arve hh Sanne.

AMANDA ARNOLD SANSONE

United States Magistrate Judge