Simon v. Comm’r, Soc. Sec. Admin., 7 F.4th 1094 (11th Cir. 2021)

Simon v. Comm’r, Soc. Sec. Admin., 7 F.4th 1094 (11th Cir. 2021) (Decision by Circuit Judges Lagoa, Anderson and Marcus)

Briefs Included: 

• Appellant’s Initial Brief 

• Appellant’s Reply Brief 

Topics addressed:

• Specific impairments - evaluation of depression

• Mental impairments - fluctuating symptoms typical

• Mental impairments - being stable not inconsistent with debilitating illness

• Mental impairments - generalized findings about speech, thought content, and intelligence not inconsistent with mental illness

• Mental impairments - ability to take care of necessities does not translate into the ability to function in a workplace

• RFC Assessment - work environment is different from medical clinic or home environment

• Subjective symptoms - daily activities

• Treating physician’s opinion (old law) - good cause

• Treating physician’s opinion (old law) - need for genuine inconsistency

• Medical opinions (old law) - weight

• Substantial evidence standard - need to scrutinize the record as a whole to determine if the decision was reasonable.    
  

Rulings addressed:

• Social Security Ruling 96-2p (old law)

• Social Security Ruling 96-8p

• Social Security Ruling 96-9p

• Social Security Ruling 16-3p 
  

Issues briefed:

1)  Whether the Commissioner’s reasons for rejecting the opinions of treating psychiatrist Dr. Turner and examining psychologist Dr. Marban were not supported by substantial evidence.

2) Whether the Commissioner’s rejection of Appellant’s alleged symptoms and limitations were not explained or not supported by substantial evidence.

Court decision:
The Eleventh Circuit first addressed the standard of review, stating:

Substantial-evidence review does not permit us to “decide the facts anew, reweigh the evidence, or substitute our judgment for that of the [Commissioner].” Phillips
v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir. 2004) (alteration in original) (quoting Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983)).  Within this narrowly limited role, however, the federal courts “do not act as automatons.”  MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986). We retain an important duty to “scrutinize the record as a whole” and determine whether the agency’s decision was reasonable. Id.

7 F.4th 1094 at 1104.

In Simon, the claimant alleged disability due to various psychiatric conditions, including chronic depression, anxiety, and bipolar disorder. Id. at 1097  The court noted that the ALJ gave little or no weight to three pieces of evidence: (1) the opinions of the claimant’s treating psychiatrist, Dr. Turner, who had met with him 32 times and kept extensive notes regarding his psychiatric history; (2) the opinions of a consulting psychologist; and (3) the claimant’s own testimony as to the severity of his symptoms. Id. The court concluded that the ALJ “did not articulate adequate reasons for discounting this evidence, which provided support for a finding of disability” and therefore remanded for further proceedings. Id.

The court noted that SSA regulations applicable for claims filed before March 27, 2017, in force at the time the claimant filed his application, required an ALJ to:

give “controlling weight” to a treating physician’s opinions if they were “well-supported by medically acceptable clinical and laboratory diagnostic techniques” and “not inconsistent with the other substantial evidence in [the] case record.” 20 C.F.R. § 404.1527(c)(2). [A]nd our own case law is clear that a treating physician’s conclusions must be given “substantial or considerable weight” unless there is “good cause” to discount them. Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997). “Good cause” exists where “(1) [the] treating physician’s opinion was not bolstered by the evidence; (2) evidence supported a contrary finding; or (3) [the] treating physician’s opinion was conclusory or inconsistent with the doctor’s own medical records.” Phillips, 357 F.3d at 1241.

Id. at 1104 (quoting Phillips v. Barnhart, 357 F.3d 1232, 1241 (11th Cir. 2004)).

In addition, the court noted that “[w]hile an ALJ may choose to reject a treating physician’s findings when there is good cause, he ‘must clearly articulate [the] reasons’ for doing so.” Id. (citing Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1179 (11th Cir. 2011) (alteration in original) (internal citation omitted). Moreover, the court will not affirm “simply because some rationale might have supported the ALJ’s conclusion.” Id. at 1104 (citing Winschel, 631F.3d at 1179) (internal citation omitted). “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.’” Id. at 1104-05 (citing Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir. 1981) (internal citation omitted)).

The Eleventh Circuit agreed with the claimant’s primary argument on appeal that the ALJ failed to state good cause to discount the opinions of Dr. Turner, his treating psychiatrist, as the ALJ’s decision did not adequately explain how the evidence was inconsistent with Dr. Turner’s opinions or otherwise constituted good cause to disregard her conclusions and held that error alone was enough to require remand. Id. at 1105. The court noted that Dr. Turner’s:

records stated time and again that Simon was experiencing intense symptoms from his conditions. Yet any mention of Simon’s most serious symptoms is conspicuously missing from the ALJ’s decision. . . Instead, the ALJ only listed Simon’s relatively minor symptoms, while at the same time emphasizing the sections of Dr. Turner’s notes that described Simon as stable on his medications. This complete failure to engage with significant portions of Dr. Turner’s clinical findings, which verges on a blatant mischaracterization of Simon’s medical records, was error.

Id. at 1105-06.  The court held it was also error:

to conclude that Dr. Turner’s occasional references to Simon being “stable on medication” were inconsistent with a finding of debilitating mental illness. Many mental disorders — and bipolar disorder in particular — are characterized by the unpredictable fluctuation of their symptoms, and thus it is not surprising that even a highly unstable patient will have good days or possibly good months. See Scott v. Astrue, 647 F.3d 734, 740 (7th Cir. 2011) (“The very nature of bipolar disorder is that people with the disease experience fluctuations in their symptoms, so any single notation that a patient is feeling better or has had a ‘good day’ does not imply that the condition has been treated.”). Indeed, in another case also involving a claimant diagnosed with bipolar disorder, we explicitly “agree[d] with our sister [c]ircuits that people with chronic diseases can experience good and bad days.” Schink v. Comm’r of Soc. Sec., 935 F.3d 1245, 1267 (11th Cir. 2019). For those who suffer from such disorders, “a snapshot of any single moment says little about [a person’s] overall condition,” and an ALJ who relies on such snapshots to discredit the remainder of a psychiatrist’s findings demonstrates a “fundamental, but regrettably all-too-common, misunderstanding of mental illness.” Punzio v. Astrue, 630 F.3d 704, 710 (7th Cir. 2011). Accordingly, this Court has held that it was improper for an ALJ to dismiss a psychiatrist’s treatment notes as “indicat[ing] only mild limitations . . . at best” simply because “some of [the claimant’s] mental-status examinations were better than others.” Schink, 935 F.3d at 1262.

Id. at 1106.

In rejecting the ALJ’s finding that notes made by the consulting doctors were inconsistent with Dr. Turner’s assessment of the claimant’s condition, the court held that:

Before an ALJ may reject a treating physician’s opinions as inconsistent with other medical findings in the record, he or she must identify a “genuine” inconsistency. . . . “It is not enough merely to point to positive or neutral observations that create, at most, a trivial and indirect tension with the treating physician’s opinion by proving no more than that the claimant’s impairments are not all- encompassing.” Consequently, when a claimant has been diagnosed with the types of mental and emotional disorders at issue here, highly generalized statements that the claimant was “cooperative” during examination, that he exhibited “organized speech” and “relevant thought content,” or that he showed “fair insight” and “intact cognition,” ordinarily will not be an adequate basis to reject a treating physician’s opinions. . . . Nor is it enough to say that the claimant is “intelligent enough to understand and follow orders and to solve problems,” such as serial sevens, because “highly intelligent and able people do fall prey to crippling depression.”

Id. at 1107 (internal citations omitted).

Additionally, the court also noted that when evaluating a claimant’s medical records, the ALJ “must take into account the fundamental differences between the relaxed, controlled setting of a medical clinic and the more stressful environment of a workplace.” Id. As the court explained:

an ALJ must take into account the fundamental differences between the relaxed, controlled setting of a medical clinic and the more stressful environment of a workplace. As the Third Circuit has observed, “[f]or a person . . . who suffers from an affective or personality disorder marked by anxiety, the work environment is completely different from home or a mental health clinic.” Morales v. Apfel, 225 F.3d 310, 319 (3d Cir. 2000). Thus, “it is not inconsistent — or even that unlikely — that a patient with a highly disruptive mood disorder, in a structured one-on-one conversation with a mental-health professional, might be capable of “be[ing] redirected” from his “tangential” thought processes so as to “remain on topic.” Schink, 935 F.3d at 1263 (alteration in original); see also Castro v. Acting Comm’r of Soc. Sec., 783 F. App’x 948, 956 (11th Cir. 2019) (“Without more, we cannot say that [the treating physician’s] observations of Castro’s judgment, insight, thought process, and thought content in a treatment environment absent work stressors were inconsistent with his assessments about the limitations she would face in a day-to-day work environment.”). In this case, we cannot discern—and the ALJ did not attempt to explain — how any of Dr. Marban’s or Dr. Merati’s findings are genuinely inconsistent with Dr. Turner’s opinions.

Id. The court therefore concluded these types of capabilities, without more, did not constitute or contribute to good cause to reject Dr. Turner’s opinions. Id. at 1108.

The Eleventh Circuit further found the evidence that the claimant could feed himself, dress himself, and shop was not a genuine inconsistency with Dr. Turner’s findings, stating:

In our view, it goes almost without saying that many people living with severe mental illness are still capable of eating, putting on clothes in the morning, and purchasing basic necessities. None of those activities, however, say much about whether a person can function in a work environment — with all of its pressures and obligations — on a sustained basis. Without some reasonable explanation from the ALJ as to why completing basic household chores is inconsistent with a finding of disability, this evidence was not sufficient to discredit Dr. Turner.

Id.

Although its conclusion regarding Dr. Turner was enough to require remand, the court stated that it was important to also note its agreement with the claimant that the ALJ erred in giving “little weight” to the consultative physicians’ opinions. The court found that the ALJ’s explanation that they were “inconsistent with the doctor’s own clinical findings and other clinical findings . . . . showing the claimant is capable of performing unskilled work” was insufficient, because the ALJ relied on the same kinds of capabilities relied on to discount Dr. Turner’s opinions. In so holding, the court stated:

As discussed above, such capabilities — e.g., a good fund of information, fair insight, good judgment, good calculation abilities, and good abstract reasoning — say little to nothing about the capacity to work of a person suffering from the types of mental illnesses with which Simon was diagnosed. And in our view, it scarcely even needs to be explained that knowing such things as the direction in which the sun rises has almost no relevance to a person like Simon’s ability to function in a workplace on a sustained basis. Thus, for the same reasons that these capabilities did not constitute or contribute to good cause to discount Dr. Turner’s opinions, they cannot constitute a reasonable basis for discounting [the consultative physicians’] opinions.

Id. at 1108-09. The court also found that the “other clinical findings” that the ALJ found to be inconsistent with the physician’s opinions were insufficient because they were not listed by the ALJ and “in any event, ‘[n]on-examining physicians’ opinions are entitled to little weight when they contradict opinions of examining physicians and do not alone constitute substantial evidence.” Schink, 935 F.3d at 1260.” Id. at 1109.

Finally, the court vacated the ALJ’s finding that the claimant’s testimony regarding his symptoms was inconsistent with the medical evidence because the symptoms were recorded in Dr. Turner’s as well as the other providers’ treatment notes. Id. On remand, the court directed the ALJ to reassess the claimant’s testimony and if still inclined to disbelieve his statements as to the severity of his symptoms, then the ALJ must support that finding by identifying some specific portion of the record undermining his credibility. Id. at 1109-10.