GREGORY J. KELLY, Magistrate Judge.
Jaclyn Marie Okeefe (the "Claimant"), appeals from a final decision of the Commissioner of Social Security (the "Commissioner") denying her applications disability insurance benefits ("DIB") and Supplemental Security Income ("SSI"). Doc. No. 1. Claimant alleges an onset of disability as of July 15, 2006, and Claimant is insured for DIB through June 30, 2008. R. 27, 299-300, 303. Claimant alleges disability primarily due to anxiety, depression, panic disorder, agoraphobia, chronic back pain, fibromyalgia, and attention deficit disorder. R. 78, 99, 112, 125, 141, 153, 167, 346. Claimant argues that the Administrative Law Judge (the "ALJ") erred by failing to demonstrate good cause, supported by substantial evidence, for giving little weight to the opinion of Claimant's long-term treating psychiatrist and licensed mental counselor, Dr. Gary Mosher and Ms. Anne Wolfram (R. 613-14). Doc. No. 19 at 14-22. Claimant also argues that the Appeals Counsel erred by failing to review the ALJ's decision because new and material evidence submitted by Claimant for the first time to the Appeals Council renders the ALJ's decision erroneous and contrary to the weight of the evidence. Doc. No. 19 at 28-29. As explained below, Claimant's arguments are related because the ALJ's decision to give little weight to the opinion of Dr. Mosher and Ms. Wolfram was based, in large part, on the lack of treatment records from them during the relevant time period. See R. 39-43. Claimant submitted treatment records from 19 therapy sessions with Ms. Wolfram and 5 treatment notes with Dr. Mosher, during the relevant period, to the Appeals Council. R. 661-79.
Under the authority of the Social Security Act, the Social Security Administration has established a five-step sequential evaluation process for determining whether an individual is disabled. See 20 C.F.R. §§ 404.1520(a), 416.920(a). In Doughty v. Apfel, 245 F.3d 1274 (11th Cir. 2001), the Eleventh Circuit explained the five-step sequential evaluation process as follows:
Id. at 1278 (citations omitted). The steps are followed in order. If it is determined that the claimant is not disabled at a step of the evaluation process, the evaluation will not go on to the next step.
The Commissioner's findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is more than a scintilla — i.e., the evidence must do more than merely create a suspicion of the existence of a fact, and must include such relevant evidence as a reasonable person would accept as adequate to support the conclusion. Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995) (citing Walden v. Schweiker, 672 F.2d 835, 838 (11th Cir. 1982) and Richardson v. Perales, 402 U.S. 389, 401 (1971)); accord Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991).
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, 937 F.2d at 584 n.3; 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, 67 F.3d at 1560; accord Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (court must scrutinize the entire record to determine reasonableness of factual findings); Parker v. Bowen, 793 F.2d 1177, 1180 (11th Cir. 1986) (court also must consider evidence detracting from evidence on which Commissioner relied). The District Court "`may not decide the facts anew, reweigh the evidence, or substitute [its] judgment for that of the [Commissioner].'" See Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir. 2004) (quoting Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983)).
At the center of this dispute is the ALJ's handling of of the opinion evidence from Claimant's long-term treating psychiatrist and mental health counselor, Dr. Mosher and Ms. Wolfram, and the Appeals Council decision not to review the ALJ's decision after Claimant submitted new evidence from those treating sources. Dr. Mosher and Ms. Wolfram are the only treating mental health professionals, who provided opinion evidence in this case. R. 1-685. A one-time examining psychologist provided a general intellectual and general personality evaluation, and two non-examining physicians also provided opinions in this case. R. 102-105; 107-09; 148-51 571-73.
The record before the ALJ contains no treatment records from Claimant's individual therapy sessions with Ms. Wolfram. R. 592-602. It contains fourteen (14) treatment notes from Dr. Mosher from August 13, 2004 through November 17, 2011. R. 597-602. From July 21, 2010 through November 17, 2011, Claimant treated with Dr. Mosher nine (9) times. R. 597-601. The record also contains logs showing whether Claimant appeared for individual therapy sessions or for medication management services. R. 592-96. Dr. Mosher's November 17, 2011 treatment note, the last treatment note in the record before the ALJ, provides that Claimant had a blunted affect, depressed mood, logical thought process, no delusions, poor judgment, fair insight, suicidal ideation but no plan or intent, and had questionable opiate abuse. R. 597. Dr. Mosher changed her medication regimen. R. 597.
On March 7, 2013, Dr. Mosher and Ms. Wolfram provided a Medical Opinion Re: Ability to Do Work-Related Activities (Mental). R. 613-14. The opinion is presented on a check-box form. R. 613-14. Dr. Mosher and Ms. Wolfram opine that Claimant has "no useful ability to function" in the following areas: traveling in unfamiliar places; and using public transportation. R. 614. They opine that Claimant is "unable to meet competitive standards" in the following areas: understanding and remembering very short and simple instructions; maintaining regular attendance and being punctual within customary tolerances; sustaining an ordinary routine without special supervision; working in coordination or proximity to others without being unduly distracted; making simple work-related decisions; completing a normal workday and workweek without interruptions from psychologically based symptoms; performing at a consistent pace without an unreasonable number and length of rest periods; asking simple questions or requesting assistance; understanding and remembering detailed instructions; carrying out detailed instructions; setting realistic goals or making plans independently of others; and dealing with stress of semiskilled and skilled work. R. 613-14.
On March 11, 2013, the ALJ held a hearing in this case. Claimant testified that she continues to treat with Dr. Mosher, roughly every three months, and last saw him in January of 2013. R. 75. The ALJ noted that the last treatment note from him in the administrative record apart from the opinion, was from November of 2011. R. 75. Claimant's attorney stated that he submitted treatment records from Dr. Mosher and Ms. Wolfram from 2012 and he was attempting to obtain more recent treatment records. R. 76. The ALJ confirmed that the administrative record did not contain any of Dr. Mosher or Ms. Wolfram's treatment records after November 2011. R. 77.
On May 31, 2013, the ALJ issued a decision finding Claimant not disabled. R. 25-50. At step-two of the sequential evaluation process, the ALJ found that Claimant has the following severe impairments: "mild obesity, panic disorder without agoraphobia, social phobia, dysthymic disorder, major depressive affective disorder, and ADHD." R. 27. The ALJ made the following residual functional capacity assessment ("RFC"):
R. 32 (emphasis added). Thus, while the ALJ's RFC does contain non-exertional limitations related to Claimant's mental impairments, it is less restrictive than the limitations contained in Dr. Mosher and Ms. Wolfram's opinion. Compare R. 32 with R. 613-14.
In the decision, the ALJ provides a summary of the evidence and the ALJ's reasons for making the above-quoted RFC determination. R. 32-48. While discussing the Claimant's testimony, the ALJ states:
R. 34. With respect to Dr. Mosher and Ms. Wolfram's treatment records, the ALJ states:
R. 39-40 (emphasis added and internal citations omitted). Thus, the ALJ notes that the last treatment record from Dr. Mosher was in 2011 and the record contains no treatment notes from Ms. Wolfram. R. 40. The ALJ later states that Claimant's counsel referred to treatment records, which occurred in 2012 and 2013, but since those records where not received, the ALJ did not consider them in rendering the decision. R. 41. The ALJ further states that Claimant's allegations regarding her mental limitations are given some weight because her last treatment with Dr. Mosher was in 2011 and although Claimant "reported seeing Dr. Mosher again in November 2012 and twice in 2013 . . . there are no treatment notes from these visits." R. 42.
The ALJ provides an accurate summary of Dr. Mosher and Ms. Wolfram's March 7, 2013 opinion. R. 43. The ALJ gives the opinion little weight, stating:
R. 43 (emphasis added). Thus, the ALJ provided the following four (4) reasons for giving their opinions little weight: (1) Claimant's treatment was sporadic as the last treatment record from Dr. Mosher was in November of 2011 and there are no treatment records from Ms. Wolfram; (2) the overall medical record does not support their "extreme" opinions; (3) the opinion is on a check-box form without a narrative report containing specific clinical findings; and (4) Dr. Mosher apparently relied too heavily on the Claimant's subjective complaints, which are not credible.
As detailed above, when discussing the Claimant's mental impairment allegations at the hearing and in the decision the ALJ repeatedly references the lack of any treatment notes from Dr. Mosher after November 2011 and any treatment records from Ms. Wolfram. See supra pp. 6-10. Indeed, the ALJ relies on the lack of such records as the first basis for giving their opinion little weight. R. 43. However, Claimant submitted records reflecting 19 therapy sessions with Ms. Wolfram from August 2, 2004 through October 24, 2012, and 5 treatment records with Dr. Mosher from February 16, 2012 through January 15, 2013 to the Appeals Council. R. 661-68, 675-79. Thus, although those records where not before the ALJ, their presence before the Appeals Council clearly refute one of the primary bases the ALJ relied upon as support for giving Dr. Mosher and Ms. Wolfram's March 7, 2013 opinion little weight (R. 43), and which the ALJ also repeatedly relies upon throughout the decision (see supra pp. 6-10).
Claimants may generally present new evidence at each stage of the administrative proceedings. 20 C.F.R. §§ 404.900(b), 416.1470(b); Ingram v. Comm'r of Soc. Sec., 496 F.3d 1253, 1261 (11th Cir. 2007); Hearn v. Comm'r of Soc. Sec., 619 F. App'x 892, 893-94 (11th Cir. Jul. 31, 2015) (unpublished). If additional evidence is presented for the first time to the Appeals Council, it must consider the evidence if it is "new and material" evidence chronologically relating "to the period on or before the date of the [ALJ's] hearing decision." 20 C.F.R. §§ 404.970(b), 416.1470(b). New evidence is material if "there is a reasonable possibility that it would change the administrative result." Hyde v. Bowen, 823 F.2d 456, 459 (11th Cir. 1987). On appeal, this Court will reverse only if the new and material evidence renders the ALJ's decision erroneous. Ingram, 496 F.3d at 1262.
In this case, the Appeals Council considered the Claimant's additional evidence, but determined that it "does not provide a basis for changing the Administrative Law Judge's decision," and, therefore, the Appeals Council denied Claimant's request for review. R. 1-2, 5, 661-685. The Court must now determine whether there is a reasonable possibility that the new evidence would change the administrative result and whether the evidence renders the ALJ's decision erroneous. For the reasons set forth below, the Court finds that the evidence Claimant submitted to the Appeals Council is material and renders the ALJ's decision erroneous.
The ALJ's decision hinges upon the ALJ's determination that Dr. Mosher and Ms. Wolfram's opinion was entitled to little weight. R. 43. Absent good cause, the opinion of a treating physician must be accorded substantial or considerable weight. Lamb v. Bowen, 847 F.2d 698, 703 (11th Cir. 1988). The Eleventh Circuit has held:
Johnson v. Barnhart, 138 F. App'x 266, 270 (11th Cir. 2005) (unpublished) (quoting Phillips v. Barnhart, 357 F.3d 1232, 1240-41 (11th Cir. 2004)). Thus, good cause exists to give a treating physician's opinion less than substantial weight where the ALJ demonstrates in the decision that the physician's opinion is not bolstered by the evidence in the record, the evidence supports a contrary finding, or the opinion is conclusory or inconsistent with the physician's medical records. Id.
Conclusory statements by an ALJ to the effect that an opinion is inconsistent with or not bolstered by the medical record are insufficient to show an ALJ's decision is supported by substantial evidence unless the ALJ articulates factual support for such a conclusion. See Anderson v. Astrue, No. 3:12-cv-308-J-JRK, 2013 WL 593754, at *5 (M.D. Fla. Feb. 15, 2013) (ALJ must do more than recite a good cause reason to reject treating physician opinion and must articulate evidence supporting that reason) (citing authority); Poplardo v. Astrue, No. 3:06-cv-1101-J-MCR, 2008 WL 68593, at *11 (M.D. Fla. Jan. 4, 2008) (failure to specifically articulate evidence contrary to treating doctor's opinion requires remand); see also Paltan v. Comm'r of Social Sec., No. 6:07-cv-932-Orl-19DAB, 2008 WL 1848342, at *5 (M.D. Fla. Apr. 22, 2008) ("The ALJ's failure to explain how [the treating doctor's] opinion was `inconsistent with the medical evidence' renders review impossible and remand is required.").
As set forth above, the ALJ's four reasons for giving their opinion little weight are: (1) Claimant's treatment was sporadic as the last treatment record from Dr. Mosher was in November of 2011 and there are no treatment records from Ms. Wolfram; (2) the overall medical record does not support their "extreme" opinions; (3) the opinion is on a check-box form without a narrative report containing specific clinical findings; and (4) Dr. Mosher apparently relied too heavily on the Claimant's subjective complaints, which are not credible. R. 43. The first reason, that Claimant' treatment was sporadic because there is no evidence that treatment continued after November 2011 is completely refuted by Claimant's submission of new evidence to the Appeals Council. R. 661-85. The ALJ's second reason, that the medical record does not support their opinions, is wholly conclusory. The ALJ's third reason, that the opinion is simply a check-box form, which did not "contain[ ] specific clinical findings" (R. 43) is not entirely accurate because Dr. Mosher and Ms. Wolfram wrote that Claimant's "severe anxiety prevents her from performing in the [identified] areas." R. 614. Thus, they did, in fact, provide a specific, albeit brief, clinical finding in support of their opinions. R. 614. The ALJ's fourth reason, that Dr. Mosher and Ms. Wolfram relied too heavily on Claimant's subjective statements, is purely boilerplate and is not supported by any actual evidence in the record. Moreover, the new evidence submitted by Claimant contains Dr. Mosher's treatment records from February 16, 2012 through January 15, 2013, all of which show mental status examinations of Claimant. R. 675-79. Thus, even if the ALJ's fourth reason were not boilerplate, the new evidence submitted by Claimant renders it erroneous.
Based on the forgoing, the Court concludes that with the submission of Dr. Mosher and Ms. Wolfram's treatment records, the ALJ's determination to give little weight to their opinion is not supported by substantial evidence, there is a reasonable possibility that the new evidence will change the administrative result, and the ALJ's final decision is erroneous. Accordingly, the case will be
Claimant, in wholly conclusory fashion, requests a remand for an award of benefits. Doc. No. 19 at 35. A remand for an award of benefits is appropriate only in two narrow circumstances: (1) where the Commissioner has already considered all of the essential evidence and it is clear that the claimant is disabled beyond a doubt; and (2) where the claimant has suffered an injustice. Davis v. Shalala, 985 F.2d 528, 534 (11th Cir. 1993); Walden v. Schweiker, 672 F.2d 835, 840 (11th Cir. 1982). As the ALJ has clearly not considered all of the essential evidence, the first avenue for an award of benefits is inappropriate, and the Claimant has not suggested any injustice. Accordingly, a remand for further proceedings is appropriate.
For the reasons stated above, the case must be remanded to the Commissioner for further proceedings.
R. 572 (emphasis added). Thus, Dr. Kaplan opined that Claimant is a candidate for vocational rehabilitation services if she receives psychotropic medication and individual outpatient therapy, but she will require specific accommodation in traditional 2 or 4 year academic settings, she should not work in any position requiring socialization skills, she is likely to decompensate in any high stress or high demand environment, and she requires a relatively structured work setting. R. 572. Dr. Kaplan further opined that Claimant's prognosis is guarded, but further psychiatric treatment should benefit her. R. 572.
