MALONE

v.

COMMISSIONER OF SOCIAL SECURITY

KILOLO KIJAKAZI,¹

Acting Commissioner of Social Security,

Defendant. ___ /

OPINION AND ORDER2

I. Status

Jermaine Leroy Malone (“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 depression, chronic gout, human immunodeficiency virus (“HIV”), carpal tunnel, and plantar fasciitis.

May⁶, 2020, the Appeals Council denied Plaintiff’s request for review, Tr. at 1- 3, making the ALJ’s Decision the final decision of the Commissioner. On June 23, 2020, Plaintiff commenced this action under 42 U.S.C. §§ 405(g) and 1383(c)(3) by timely filing a Complaint (Doc. No. 1) seeking judicial review of the Commissioner’s final decision. On appeal, Plaintiff argues that “[t]he ALJ failed to apply the correct legal standards to the opinion of [Plaintiff]’s treating physician,” Suzy Boules, M.D. Pl.’s Mem. at 12 (emphasis and some capitalization omitted). On March³, 2021,

Defendant filed a Memorandum in Support of the Commissioner’s Decision (Doc. No. 29; “Def.’s Mem.”) addressing Plaintiff’s argument. After a thorough review of the entire record and consideration of the parties’ respective memoranda, the undersigned finds that the Commissioner’s final decision is due to be affirmed. II. The ALJ’s Decision When determining whether an individual is disabled,⁵ an ALJ must

Here, the ALJ followed the five-step inquiry. See Tr. at 20-34. At step one, the ALJ determined that Plaintiff “has not engaged in substantial gainful activity since September¹⁵, 2016, the alleged onset date.” Tr. at 20 (emphasis and citation omitted). At step two, the ALJ found that Plaintiff “has the following severe impairments: [HIV] infection, generalized osteoarthritis affecting multiple joints, gout, history of deep venous thrombosis, lymphedema, hypertension, dyslipidemia, obesity, plantar fasciitis and carpal tunnel syndrome.” Tr. at 21 (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 23 (emphasis and citation omitted). The ALJ determined that Plaintiff has the following residual functional capacity (“RFC”): [Plaintiff can] perform sedentary work as defined in 20 [C.F.R. §§] 404.1567(a) and 416.967(a) except he can frequently operate hand controls and handle bilaterally; occasionally climb ramps and stairs but never climb ladders, ropes or scaffolds; frequently balance, stoop, and crouch; occasionally kneel and crawl; and occasional exposure to unprotected heights, moving mechanical parts, extreme cold, extreme heat and vibration. [Plaintiff] needs to use a singlehanded cane during all periods of standing and walking. Tr. at 23-24 (emphasis omitted). At step four, the ALJ relied on the testimony of the VE and found that Plaintiff “is capable of performing past relevant work as a teleworker.” Tr. at 32 (emphasis and citation omitted). The ALJ made alternative findings for the fifth and final step of the sequential inquiry, and after considering Plaintiff’s age (“43 years old . . . on the alleged disability onset date”),⁶ education (“at least a high school education”), work experience, and RFC, the ALJ again relied on the testimony of the VE and found that “there are other jobs that exist in significant numbers in the national economy that [Plaintiff] also can perform,” Tr. at 33 (citations omitted), such as “Charge Account Clerk,” “Telephone Quotation Clerk,” and “Document Preparer,” Tr. at 33-34. The ALJ concluded

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

A. Parties’ Arguments Plaintiff argues that “the ALJ failed to apply the correct legal standards to the opinion of” Dr. Boules (his treating physician). Pl.’s Mem. at 12 (emphasis and some capitalization omitted). More specifically, Plaintiff contends that the

ALJ erred in giving less than controlling weight to the opinion of Dr. Boules. Id. at 12-14. Plaintiff alleges that “[t]he ALJ’s reason for rejecting Dr. Boules’ opinion was conclusory and does not provide the requisite good cause for rejecting her opinion” and that “[t]he ALJ failed to cite to any medical evidence in support of his findings.” Id. at 14. Plaintiff also argues that Defendant cannot provide “post hoc justifications for the ALJ’s failure to provide the requisite good cause for rejecting Dr. Boules’ opinion.” Id. Responding, Defendant asserts that “[a]fter reviewing Dr. Boules’ opinion, the ALJ[] assigned it limited weight because the opinion was not grounded on observable clinical signs and was inconsistent with the medical evidence of record.” Def.’s Mem. at 8 (citations omitted). Defendant contends that “[t]he ALJ correctly noted that Dr. Boules’ opinion was conclusory and speculative” and that “Dr. Boules’ failure to provide objective findings to support [her] opinion is sufficient reason for the ALJ to give [it] limited weight[.]” Id. Finally, Defendant argues that its “citation to additional record evidence to support the ALJ’s findings and rationale does not amount to impermissible ‘post-hoc rationalization.’” Id. at 10. Instead, Defendant contends that it “is not advancing a finding or rationale the ALJ did not provide in his [D]ecision but is instead pointing to the existing record to show the [C]ourt additional support for the finding and rationale articulated by the ALJ.” Id. at

12.

B. Applicable Law7

“Medical opinions are statements from [physicians or other] acceptable medical sources that reflect judgments about the nature and severity of [a claimant’s] impairment(s), including [the claimant’s] symptoms, diagnosis and prognosis, what [the claimant] can still do despite impairment(s), and [the claimant’s] physical or mental restrictions.” 20 C.F.R. § 404.1527(a)(1). Acceptable medical sources include licensed physicians, licensed psychologists,

[any] treatment relationship”; (3) “[s]upportability”; (4) “[c]onsistency” with other medical evidence in the record; and (5) “[s]pecialization.” 20 C.F.R. § 404.1527(c)(2)-(5); see also 20 C.F.R. § 404.1527(f); Walker v. Soc. Sec. Admin., Comm’r, 987 F. 3d 1333, 1338 (11th Cir. 2021) (citation omitted); McNamee v. 8 For claims filed on or after March 27, 2017, acceptable medical sources also include licensed audiologists, licensed Advanced Practice Registered Nurses, and licensed Physician Assistants. 20 C.F.R. § 404.1502(a)(6)-(8). Soc. Sec. Admin., 164 F. App’x 919, 923 (11th Cir. 2006) (citation omitted) (stating that “[g]enerally, the opinions of examining physicians are given more weight than those of non-examining physicians[;] treating physicians[’ opinions] are given more weight than [non-treating physicians;] and the opinions of specialists are given more weight on issues within the area of expertise than those of non-specialists”). With regard to a treating physician,⁹ the Regulations instruct ALJs how to properly weigh such a medical opinion. See 20 C.F.R. § 404.1527(c)(2). Because treating physicians “are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [a claimant’s] medical impairment(s),” a treating physician’s medical opinion is to be afforded controlling weight if it is “well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence” in the record. Id. When a treating physician’s medical opinion is not due controlling weight, the ALJ must determine the appropriate weight it should be given by considering the factors identified above (the length of treatment, the frequency of examination, the nature and extent of the

Cir. 2018) (citation omitted); Lewis v. Callahan, 125 F. 3d 1436, 1440 (11th Cir. 1997). Good cause exists when (1) the opinion is not bolstered by the evidence; (2) the evidence supports a contrary finding; or (3) the opinion is conclusory or inconsistent with the treating physician’s own medical records. Walker, 987

F. 3d at 1338; Schink, 935 F. 3d at 1259; Hargress, 883 F. 3d at 1305; Phillips, 357 F. 3d at 1240-41; see also Edwards v. Sullivan, 937 F. 2d 580, 583-84 (11th Cir. 1991); Schnorr v. Bowen, 816 F. 2d 578, 582 (11th Cir. 1987) (stating that a treating physician’s medical opinion may be discounted when it is not accompanied by objective medical evidence). An ALJ is required to consider every medical opinion. See 20 C.F.R. § 404.1527(c) (stating that “[r]egardless of its source, we will evaluate every medical opinion we receive”). While “the ALJ is free to reject the opinion of any physician when the evidence supports a contrary conclusion,” Oldham v. Schweiker, 660 F. 2d 1078, 1084 (5th Cir. 1981) (citation omitted); see also 20 C.F.R. § 404.1527(c)(2), “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) (citing Sharfarz, 825 F. 2d at

279); Moore v. Barnhart, 405 F. 3d 1208, 1212 (11th Cir. 2005); Lewis, 125 F. 3d at 1440. “It is the responsibility of the agency, not the reviewing court, to supply the justification for its decision and to sufficiently explain the weight it has given to obviously probative exhibits.” Simon,⁷ F.4h at 1105 (quotation and citations omitted).

C. Analysis

Dr. Boules has been Plaintiff’s primary care physician since June 19, 2017. Tr. at 628; see also Tr. at 808-18 (June 19, 2017 medical record). Dr. Boules primary focus with Plaintiff is treating his HIV infection. She also refers Plaintiff to other medical providers when necessary for more specialized treatment for Plaintiff’s other physical ailments See, e.g., Tr. at 713 (March 19, 2018 record referring Plaintiff to “colorectal again”); Tr. at 767 (October¹²,

2017 note referring Plaintiff to mental health); Tr. at 815 (June 19, 2017 record referring Plaintiff to a hematologist and a podiatrist). On July⁷, 2018, Dr. Boules completed a Physical RFC Questionnaire. See Tr. at 628-32. In the Questionnaire, Dr. Boules indicated that Plaintiff’s prognosis is “unpredictable,” and Plaintiff’s symptoms include “painful, ankles, knees, [and] back, wrists.” Tr. at 628. Dr. Boules further wrote that Plaintiff’s pain is “8/10 pain score” and identified the clinical findings as “moderate RROM of all joints secondary to pain, gout.” Tr. at 628. She further noted that Plaintiff’s side effects from medications include “drowsiness, dizziness,

[and] nausea”; Plaintiff’s impairments lasted or can last at least twelve months; he is not a malingerer; and Plaintiff does not have any emotional factors contributing to the severity of his symptoms or functional limitations. Tr. at 628-29. When asked if there are any psychological conditions affecting

Plaintiff’s physical condition, Dr. Boules checked “[d]epression” and “[a]nxiety.” Tr. at 629. Dr. Boules also checked “[c]onstantly” when asked how often during a typical workday Plaintiff’s experience of pain or other symptoms affect Plaintiff’s attention and concentration during a typical workday. Tr. at 629.

Dr. Boules went on to note Plaintiff could: walk one city block without rest or severe pain; could sit¹ hour and stand¹⁵ minutes at one time; could stand/walk for less than² hours and sit about⁴ hours total in an 8-hour workday; and needs included periods of walking around during an 8-hour working day, walking every¹⁵ minutes for¹⁵ minutes. Tr. at 629-30. Dr. Boules opined that Plaintiff does not need a job permitting him to shift positions at will but needs a job allowing him to take unscheduled breaks occurring every¹⁵ minutes for 15-30 minutes. Tr. at 630. She also circled “[y]es” indicating

Plaintiff’s legs will need to be elevated and he must use a cane or other assistive

10 pounds; never¹⁰, 20, or 50 pounds. Tr. at 630. She also noted Plaintiff could occasionally look down (sustained) flexion of neck and turn head right or left; and could rarely look up or hold head in static position. Tr. at 631. As for certain activities, Dr. Boules stated Plaintiff could never twist, stoop (bend),

crouch/squat, or climb ladders, and Plaintiff could occasionally climb stairs. Tr. at 631. She also positively identified that Plaintiff has significant limitations with reaching, handling, or fingering. Tr. at 631.11 Dr. Boules indicated Plaintiff’s impairments would produce “good” and

“bad” days, and he would miss more than⁴ days because of his impairments or treatment. Tr. at 631. She further indicated Plaintiff would be unable to maintain a regular work schedule because of pain. Tr. at 632. Finally, when asked if Plaintiff would be unable to maintain a regular work schedule because of side effects of medication and if Plaintiff would have to lie down at unpredictable times during the day because of pain, Dr. Boules circled “[y]es.” Tr. at 632.

Tr. at 31. Directly after this finding, the ALJ assigned two different weights to Dr. Boules’ opinions. See Tr. at 31-32. He first assigned “great weight” to Dr. Boules’ opinion “prescribing [Plaintiff] a quad cane” as “[t]he need for a cane is supported by the impairments, and [Plaintiff]’s medical history.” Tr. at 31 (citing Exhibit 12F (located at Tr. at 705)). The ALJ then assigned “limited weight” to Dr. Boules’ opinions regarding the RFC Questionnaire completed in July 2018. Tr. at 31-32; see also Tr. at 628-32. While assigning “limited weight,” the ALJ found that Dr. Boules’ opinion was “conclusory, speculative and not grounded on observable clinical signs in treatment or progress notes.” Tr. at 32. The ALJ did not err in assigning Dr. Boules’ opinion (regarding the RFC Questionnaire) “limited weight.” Tr. at 31-32.12 Although the ALJ did not cite to specific exhibits, it is clear he reviewed all the evidence submitted, and his review necessarily included Dr. Boules’ treatment and progress notes. See Tr. at 24-32. The ALJ found the doctor’s opinions in the RFC Questionnaire were “not grounded on observable clinical signs in treatment or progress notes.” Tr. at 32.

Consistent with the ALJ’s findings, see supra p. 15, Dr. Boules’ records reflect a lack of clinical observations for the extreme limitations assigned in the RFC Questionnaire. Although some medical records do indicate Plaintiff was positive for edema or his right wrist was swollen, see, e.g., Tr. at 712 (March 19,

2018), Tr. at 869 (June 27, 2019), and although Dr. Boules identified the clinical findings as “moderate RROM off all joints secondary to pain, gout,” see Tr. at 628 (RFC Questionnaire), several physical examinations performed by the doctor were normal and indicate “no clubbing, cyanosis, edema, or deformity

Tr. at 962 (June¹², 2018 ); Tr. at 725 (January⁹, 2018); Tr. at 737 (December¹³, 2017); Tr. at 746 (November⁶, 2017); Tr. at 756 (October 26, 2017); Tr. at 766 (October¹², 2017); Tr. at 786 (August 25, 2017) (emphasis added).¹⁵ Some physical exams did not include a specific section for “extremities” or

“musculoskeletal (MS)”, but these exams otherwise appear largely normal. See, e.g., Tr. at 925-26 (October 29, 2018). Dr. Boules also noted in Plaintiff’s more recent medical records that Plaintiff was “noncompliant” and later “very noncompliant” with his medications and had “a long h[istory] of non[]compliance with” taking his prescribed medications. Tr. at 877 (April¹¹, 2019 medical record); Tr. at 863 (June 27, 2019 medical record); see also Tr. at 919 (October 29, 2018 treatment record indicating Plaintiff “always takes his med[ication]s on and off for different excuses”); Tr. at 933 (August 31, 2018 note stating Plaintiff “did not take his [blood pressure] med[ication]s as usual”); Tr. at 956 (June¹², 2018

Plaintiff’s RFC. See Tr. at 24; see also Tr. at 705. As to Plaintiff’s contention that the ALJ’s reasons were too conclusory, although they could have been more detailed and explicit, the comparison of Dr. Boules’ notes (and the rest of the medical evidence) with her opinion contained in the RFC Questionnaire leads to the obvious¹⁶ conclusion that the ALJ’s reasons for discounting the opinion were adequate and supported by substantial evidence. See Tr. at 31-32. The ALJ did not err in his treatment of Dr. Boules’ opinions.

V. Conclusion

After a thorough review of the entire record, the undersigned finds that the ALJ’s Decision is supported by substantial evidence. Accordingly, it is ORDERED:

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

DONE AND ORDERED in Jacksonville, Florida on September 27, 2021.

lomo. KR. KAR [...]

JAMES R. KLINDT

United States Magistrate Judge keh Copies: Counsel of Record