Delvin S. v. Kijakazi, Case No. 1:21-cv-22755-Louis (S.D. Fla. Mar. 23, 2023)

Delvin S. v. Kijakazi, Case No. 1:21-cv-22755-Louis (S.D. Fla. Mar. 23, 2023) (Decision by U.S. Magistrate Judge Lauren F. Louis, by consent)

Briefs for purchase:

• Plaintiff’s Motion for Summary Judgment

• Plaintiff’s Reply Brief

• Order Remanding Case 

Topics addressed:

• Medical opinions (new law) - persuasiveness

• RFC- lack of support for findings

• RFC - reliance on outdated assessments of State agency medical consultants

• Subjective complaints - treatment regimen

• Subjective complaints - ALJ must consider reasons for not seeking treatment

• Subjective symptoms - daily activities need not be objectively verified

• Post hoc justification

Rulings addressed: 
Social Security Ruling 16-3p

Issues briefed:

1)  The ALJ’s reasons for finding the opinion of Dr. Allaf, Plaintiff’s longtime treating pulmonologist, to be “unpersuasive” are not supported by substantial evidence.

2) The ALJ’s residual functional capacity (“RFC”) assessment is not supported by substantial evidence.

3) The ALJ’s stated reasons for discrediting Plaintiff’s testimony is not based on substantial evidence.

4) The Acting Commissioner failed to sustain her burden of establishing that there is other work in the national economy that Plaintiff can perform.

Court decision:
The court first found that the ALJ properly assessed the treating pulmonologist’s medical opinion under the governing regulations applicable to claims filed on or after March 27, 2017. Slip op. at 12. As to the supportability factor, the court found substantial evidence supported the ALJ’s finding that the pulmonologist’s opinion was not persuasive because, like Plaintiff’s other treating physicians, he documented “many generally normal physical examination findings.” Id. at 12-13. The court also found the ALJ’s analysis of the consistency of the pulmonologist’s opinions with the other medical evidence was sufficient, in that the ALJ compared it with the opinions of other treating specialists whose opinions the ALJ also found unpersuasive for similar reasons as well as the notes of Plaintiff’s primary care physician. Id. at 15-16.

However, the court agreed that the ALJ erred when assessing the intensity, persistence, and limiting effects of Plaintiff’s symptoms, improperly discrediting his claims of subjective symptoms and impairments based on his statements regarding his treatment and his daily activities. Id. at 17. As to his treatment, the court noted that the ALJ summarily stated that Plaintiff “ha[d] not received the type of treatment one would expect from a totally disabled individual” without discussing what treatment(s) he did receive, let alone why the treatment(s) he did receive were not the kinds one would expect of a person under a disability. Id. at 19 (emphasis in original). While the ALJ noted Plaintiff’s testimony that he receives treatment for his heart and kidney and used a rescue inhaler, the ALJ did not identify or discuss these or Plaintiff’s other treatments, or why these treatments are not the kind expected of a person with a disability. Id. at n. 8. Thus, the ALJ’s assessment of this factor was not supported by substantial evidence. Id. at nt. 8. The court also found the ALJ’s analysis on the treatment factor is incomplete because the ALJ was required to consider possible reasons Plaintiff did not seek treatment consistent with the degree of his complaints but did not do so. Id. at 19-20.

Regarding subjective complaints, the ALJ had discredited Plaintiff’s symptoms because his allegedly limited daily activities could not “be objectively verified with any reasonable degree of certainty, and that even if the Plaintiff’s daily activities are truly as limited as alleged, it is difficult to attribute that degree of limitation to the Plaintiff’s medical condition, as opposed to other reasons.” Id. at 20. Citing to Wolfe v. Comm’r of Soc. Sec., No. 6:11-CV-1316-ORL-DAB, 2012 WL 3264916, at *6 (M.D. Fla. Aug. 10, 2012), the court concluded there is no requirement that a Plaintiff’s daily activities (or lack thereof) be objectively verified and found the ALJ’s assessment of Plaintiff’s daily activities was “too vague to evaluate” as the ALJ did not identify what, if any, of Plaintiff’s daily activities the ALJ considered. Id. at 20-21. Accordingly, the court found the ALJ erred when assessing the effects of Plaintiff’s symptoms, and that remand was warranted for reassessment. Id. at 21.

Because reevaluation of Plaintiff’s subjective symptoms may affect the ALJ’s RFC assessment, the court found this issue is dispositive, and the court need not address Plaintiff’s other issues raised on appeal. Id.