KANTOR

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 applications for a period of disability, disability insurance benefits (“DIB”), and supplemental security income (“SSI”), alleging disability beginning April 18, 2017. Following an administrative hearing held on October⁹, 2019, the assigned Administrative Law Judge (“ALJ”) issued a decision, finding Plaintiff not disabled from April 18, 2017, the alleged disability onset date, through November 29, 2019, the date of the ALJ’s decision.² (Tr. 15-62.)

and autism spectrum/Asperger’s syndrome. (Tr. 18.) The ALJ further found that Plaintiff had the residual functional capacity (“RFC”) to perform a full range of work at all exertional levels, but was limited to performing “simple, routine, and repetitive tasks,” making “simple work-related decisions,” and having “occasional interaction with supervisors, co-workers, and the public.” (Tr. 20.) Then, at step five of the sequential evaluation process,3 based on the testimony of the vocational expert (“VE”) and considering Plaintiff’s age, education, work experience, and RFC, the ALJ found that there were jobs existing in significant numbers in the national economy that Plaintiff could perform. (Tr. 24-25.) Specifically, the ALJ listed the following representative jobs, which are unskilled, with a Specific Vocational Preparation (“SVP”) level of¹ or²: hand packager (DOT # 920.587-018), laundry laborer (DOT #

361.687-018), packer of agricultural produce (DOT # 920.687-134), and cleaner II (DOT # 919.687-014). (Tr. 24.) Plaintiff is appealing the Commissioner’s decision that he was not disabled from April 18, 2017 through November 29, 2019. Plaintiff has earliest time that SSI benefits are payable is the month following the month in which the application was filed. See 20 C.F.R. § 416.335. 3 The Commissioner employs a five-step process in determining disability. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). exhausted his available administrative remedies and the case is properly before the Court. Based on a review of the record, the briefs, and the applicable law, the Commissioner’s decision is REVERSED and REMANDED under sentence four of 42 U.S.C. § 405(g).

I. Standard of Review

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 the court must scrutinize the entire record to determine the reasonableness of the Commissioner’s factual findings).

II. Discussion

A. Issues on Appeal

Plaintiff raises three issues on appeal. First, he argues that the ALJ failed to adequately consider and state the weight accorded to the opinions of

Morteza Nadjafi, M.D., Plaintiff’s treating psychiatrist at Advanced Psychiatric Group, and Mary-Catherine Segota, Psy.D., the State agency examining psychologist. (Doc. 28 at 7-12.) Plaintiff’s second argument is that the ALJ erroneously relied on the VE’s testimony in response to an incomplete hypothetical question. (Id. at 12-17.) Plaintiff argues that the hypothetical question did not account for Plaintiff’s moderate limitations in concentration, persistence, and pace, or for the limitations supported by the records of Dr. Nadjafi and Dr. Segota. (Id. at 13-15.) Plaintiff also argues that there was no substantial evidence to support the ALJ’s finding that there was a significant number of jobs in the national economy that Plaintiff could perform, because the VE “did not provide an accurate number of jobs available in the national economy for each of the jobs she indicated would be available to the hypothetical person.” (Id. at 12, 15-17.) Plaintiff’s third argument is that the ALJ did not sufficiently consider Plaintiff’s subjective complaints because the ALJ did not provide any specific reasons for undermining his testimony or for supporting the ALJ’s credibility determination. (Id. at 17-20.) Defendant responds that substantial evidence supports the ALJ’s RFC assessment, step-five finding, and his evaluation of Plaintiff’s subjective complaints. (Doc. 36.)

B. 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 opinions, the rules in 20 C.F.R. §§ 404.1520c, 416.920c apply to claims filed on or after March 27, 2017.4 See Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 F.R. 5844-01, 2017 WL 168819 (Jan. 18, 2017). Because Plaintiff’s claim was filed after March 27, 2017, the Court applies the revised rules and regulations in effect at the time of the ALJ’s decision. Under the revised rules and regulations, the ALJ need “not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) . . . , including those from [the claimant’s] medical sources.” 20 C.F.R. §§ 404.1520c(a), 416.920c(a). The ALJ will articulate in the administrative decision how persuasive all of the medical opinions are in

C.F.R. §§ 404.1520c(d), 416.920c(d). “When a medical source provides one or more medical opinions,” those opinions will be considered “together in a single analysis,” using the factors listed in 20 C.F.R. §§ 404.1520c(c)(1) through (c)(5), 416.920c(c)(1) through (c)(5), as appropriate. 20 C.F.R. §§ 404.1520c(a), (b)(1), 416.920c(a), (b)(1). The ALJ is “not required to articulate how [he/she] considered each medical opinion . . . from one medical source individually.” 20 C.F.R. §§ 404.1520c(b)(1), 416.920c(b)(1).

When evaluating the persuasiveness of medical opinions, the most important factors are supportability⁵ and consistency.⁶ 20 C.F.R. §§ 404.1520c(a), (b)(2), 416.920c(a), (b)(2). Thus, the ALJ “will explain how [he/she] considered the supportability and consistency factors for a medical source’s medical opinions” in the determination or decision but is not required to explain how he/she considered the rest of the factors listed in 20

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 [or she] 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

Id. Once a claimant establishes that his subjective symptom is disabling through “objective medical evidence from an acceptable medical source that shows . . . a medical impairment(s) which 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 16-3p9 (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

SSR 16-3p.

• 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 symptoms; • 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.

C. Analysis

Turning to Plaintiff’s third argument on appeal, the Court finds that the ALJ’s statements for discrediting Plaintiff’s subjective complaints are not supported by substantial evidence in the record. The ALJ found that while Plaintiff’s medically determinable impairments could reasonably be expected to cause his alleged symptoms, Plaintiff’s statements concerning the intensity, persistence, and limiting effects of those symptoms were “not entirely consistent with the medical evidence and other evidence in the record.” (Tr. 21.) The ALJ explained: [A]lthough the claimant continues to have symptoms of OCD, anxiety disorder, and autism spectrum/Asperger’s syndrome, his presentation on mental status examinations demonstrates that he has a greater degree of functioning than alleged.

On April¹⁰, 2017, the claimant presented for an office visit with Morteza Nadjafi, M.D. in order to follow up with respect to his anxiety and OCD. Dr. Nadjafi noted that the claimant appeared frazzled, talked non-stop, and got frustrated when facing minor challenges. On mental status examination, the claimant was poorly groomed, appeared tense and had pressured speech, irritable mood, constricted affect, and he was preoccupied with future plans (Exhibit 1F/26-27). Subsequently, on November 19, 2017, the claimant presented for a psychological consultative examination with Dr. Segota. On mental status examination, the claimant was able to answer questions and appeared to understand the evaluation process, but he talked until he was interrupted. The claimant was cooperative and Dr. Segota was able to establish rapport. The claimant exhibited varying concentration, he spoke quickly, and his rate of thought was fast with tangential continuity of ideas. The claimant had a hyper-verbal affect, but there were no signs of perceptual abnormalities, illusions, or delusions. The claimant reported a history of compulsive behavior, and he was preoccupied with being let go from his job for doing the right thing. On memory and concentration testing, he was able to repeat six digits forward and five digits backward, remember one of three words after a five-minute delay, and the claimant could recall an additional word with a prompt. Dr. Segota further noted that the claimant had no difficulty with serial sevens, and that he could conduct simple addition, subtraction, multiplication, and division problems (Exhibit 7F/4-5).

Over the course of subsequent follow up visits, although the claimant continued to present with pressured speech, anxious mood, and talked excessively during examinations, findings on mental status examination demonstrate that his thought processes were goal-directed, he had appropriate perceptions, and he was cooperative with his mental health care providers (Exhibit 16F/1, 3, 5, 9, and 12-14).

(Tr. 21-22.) Contrary to the ALJ’s statements, Plaintiff’s mental status examinations actually support his complaints of disabling limitations. Citing to Dr. Nadjafi’s progress notes from February 14, 2018, May 16, 2018, July 30, 2018, October 30, 2018, January 29, 2019, April 23, 2019, and July 23, 2019, the ALJ stated that Plaintiff’s thought processes were goal-directed, he had appropriate perceptions, and he was cooperative with his mental health care providers. (Tr. 22.) However, only some of these progress notes support the ALJ’s statement and they do so only in part. (See Tr. 562 (noting that on

February 14, 2018, Plaintiff was cooperative and had appropriate perceptions, but was poorly groomed and anxious in appearance/attitude, exhibited tense and apathetic behavior, pressured speech, anxious mood, constricted affect, tangential and goal directed thought process, and obsessive thought content); Tr. 561 (noting that on May 16, 2018, Plaintiff was cooperative and had appropriate perceptions and thought processes, but was poorly groomed and anxious in appearance/attitude, exhibited tense behavior, pressured speech, anxious mood, modulated affect, and preoccupied thought content); Tr. 560 (noting that on July 30, 2018, Plaintiff was cooperative and had appropriate perceptions and thought processes, but was poorly groomed and anxious in appearance/attitude, exhibited tense behavior, pressured speech, irritable mood, modulated affect, and preoccupied thought content);

Tr. 557-58 (noting that on October 30, 2018, Plaintiff’s perceptions were normal, but he exhibited agitated, tense behavior; fast rate, pressured speech; anxious mood; racing thought process; thought content indicating obsessions with comic books; and impulsive, unrealistic insight/judgment).)

To the extent the ALJ relied on Dr. Nadjafi’s progress notes for the period February 14, 2018 through July 23, 2019, his statements are not supported by substantial evidence. Dr. Nadjafi’s progress notes are replete with abnormal examination findings that lend support to Plaintiff’s subjective complaints of disabling symptoms, such as high anxiety, agitation, hyperactivity, talking non-stop, obsessive and compulsive behaviors, and inability to focus. (See Tr. 562 (noting that on February 14, 2018, Plaintiff was poorly groomed and anxious in appearance/attitude, exhibited tense and apathetic behavior, pressured speech, anxious mood, constricted affect, tangential and goal directed thought process, and obsessive thought content; and appeared to have symptoms of Asperger’s syndrome with pathological focus); Tr. 561 (noting that on May 16, 2018, Plaintiff was poorly groomed and anxious in appearance/attitude,

exhibited tense behavior, pressured speech, anxious mood, modulated affect, and preoccupied thought content; and was diagnosed with anxiety, autistic spectrum disorder, and obsessive preoccupation); Tr. 560 (noting that on July 30, 2018, Plaintiff was poorly groomed and anxious in appearance/attitude,

exhibited tense behavior, pressured speech, irritable mood, modulated affect, and preoccupied thought content; and was diagnosed with severe anxiety, OCD, and insomnia); Tr. 557-58 (noting that on October 30, 2018, Plaintiff exhibited agitated, tense behavior; fast-rate, pressured speech; anxious mood;

racing thought process; thought content indicating obsessions with comic books; and impulsive, unrealistic insight/judgment; and was diagnosed with mixed obsessional thoughts and acts, and Asperger’s syndrome); Tr. 553 (noting that on January 29, 2019, Plaintiff exhibited loud, fast-rate speech and anxious mood; and was diagnosed with mixed obsessional thoughts and acts, and Asperger’s syndrome); Tr. 551 (noting that on April 23, 2019, Plaintiff exhibited agitated, tense behavior; pressured speech; anxious mood; thought process showing flight of ideas; thought content indicating obsessions; and poor insight/judgment; and was diagnosed with mixed obsessional thoughts and acts, and Asperger’s syndrome); Tr. 549 (noting that on July 23, 2019, Plaintiff had anxious appearance/attitude, agitated behavior, anxious mood, and poor insight/judgment; and was diagnosed with mixed obsessional thoughts and acts, and Asperger’s syndrome)11.)

Further, the hearing testimony fully supports the observations of both Dr. Nadjafi and Dr. Segota that Plaintiff talked non-stop until he was interrupted and that he exhibited varying concentration levels, hyper-verbal affect, and tangential thought process. (See Tr. 38-56; Tr. 477 (noting that during the consultative examination on November⁹, 2017, Plaintiff talked until he was interrupted; eye contact was intermittent; speech was of a fast rate and large quantity; rate of thought was fast; amount of thought was

Plaintiff’s subjective complaints and the records of Dr. Nadjafi and Dr. Segota, and explain how any medical opinions in those records have been assessed. In light of this conclusion, it is unnecessary to address Plaintiff’s remaining arguments. See Jackson v. Bowen, 801 F. 2d 1291, 1294 n.2 (11th

Cir. 1986) (per curiam); Freese v. Astrue, No. 8:06-cv-1839-T-EAJ, 2008 WL 1777722, at *3 (M.D. Fla. Apr. 18, 2008); see also Demenech v. Sec’y of the Dep’t of Health & Hum. Servs., 913 F. 2d 882, 884 (11th Cir. 1990) (per curiam).

function at the previous level[,] therefore[,] [he] was placed on administrative leave without pay. (Tr. 377-78.) Accordingly, it is ORDERED: 1. The Commissioner’s decision is REVERSED pursuant to sentence four of 42 U.S.C. § 405(g) and REMANDED with instructions to the ALJ to (a) reconsider Plaintiff's subjective complaints and the records of Dr. Nadjafi and Dr. Segota, and explain how any medical opinions in those records have been assessed; (b) reconsider the RFC assessment, if necessary; and (c) conduct any further proceedings deemed appropriate. 2. The Clerk of Court is directed to enter judgment consistent with this Order, terminate any pending motions, and close the file. 3. The judgment should state that if Plaintiff were to ultimately prevail in this case upon remand to the Social Security Administration, any § 406(b) or § 1888(d)(2) fee application must be filed within the parameters set forth by the Standing Order on Management of Social Security Cases entered in In re: Administrative Orders of the Chief Judge, Case No.: 3:21-mc-1-TJC (M.D. Fla. Dec.⁷, 2021). DONE AND ORDERED at Jacksonville, Florida, on February 21, 2022.

; MONTE C. RICHARDSON

UNITED STATES MAGISTRATE JUDGE

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