REPORT AND RECOMMENDATION
GREGORY J. KELLY, District Judge.
Jose Cordero Vega (the "Claimant"), appeals to the District Court from a final decision of the Commissioner of Social Security (the "Commissioner") denying his application for benefits. Doc. No. 1. Claimant argues that the Administrative Law Judge (the "ALJ") erred by: 1) failing to state with particularity the weight given to the retrospective medical opinions of record and the reasons therefor; 2) relying entirely on the opinions of non-examining physicians while ignoring the opinions of treating and examining physicians; 3) failing to provide reasons supported by substantial evidence for finding Claimant's testimony not credible; and 4) relying upon testimony from a vocational expert that is based on a flawed residual functional capacity assessment ("RFC"). Doc. No. 16 at 16-26. For the reasons set forth below, it is recommended that the Commissioner's final decision be REVERSED and REMANDED for further proceedings.
I. ANALYSIS.
A. Drs. Goldman and Cohen.
On July 2, 2008, Claimant filed an application for benefits alleging an onset of disability as of January 31, 2005. R. 127. It is undisputed that Claimant is insured for benefits through June 30, 2006. R. 57. Therefore, Claimant must establish a disability on or before June 30, 2006.
Claimant argues that the ALJ erred by failing to state with particularity the weight given and the reasons therefor to the retrospective opinions Drs. Donald I. Goldman, Claimant's treating orthopedic surgeon, and Benjamin N. Cohen, Ph.D., a clinical psychologist who performed a psychological evaluation. Doc. No. 16 at 16-21 (citing Garvey v. Astrue, 2007 WL 4403525 at *7 (N.D. Fla. 2007) (holding ALJ's duty to consider opinion evidence is not altered by fact the opinion is retrospective)). The Commissioner contends that the "ALJ properly considered the . . . medical records and opinions from the relevant [time] period." Doc. No. 20 at 14. The Commissioner further maintains that "the opinions to which Plaintiff refers were not entitled to any weight, not merely because they were rendered after Plaintiff's date last insured . .., but because the opinions were not consistent with the contemporaneous medical evidence during the relevant period." Doc. No. 20 at 14 (citing Mason v. Commissioner of Social Security, 430 Fed.Appx. 830, 832 (11th Cir. 2011) (unpublished)).1 The Commissioner then provides reasons not offered by the ALJ in her decision for why the opinions of Drs. Goldman and Cohen are inconsistent with the medical records during the relevant time period. Doc. No. 20 at 17-18.2
The ALJ'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).
Weighing the opinions and findings of treating, examining, and non-examining physicians is an integral part of steps four and five of the ALJ's sequential evaluation process for determining disability. In Winschel v. Commissioner of Social Security, 631 F.3d 1176, 1178-79 (11th Cir. 2011), the Eleventh Circuit held that whenever a physician offers a statement reflecting judgments about the nature and severity of a claimant's impairments, including symptoms, diagnosis, and prognosis, what the claimant can still do despite his or her impairments, and the claimant's physical and mental restrictions, the statement is an opinion requiring the ALJ to state with particularity the weight given to it and the reasons therefor. Id. (citing 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2); Sharfarz v. Bowen, 825 F.2d 278, 279 (11th Cir. 1987)). The Eleventh Circuit stated that "`[i]n the absence of such a statement, it is impossible for a reviewing court to determine whether the ultimate decision on the merits of the claim is rational and supported by substantial evidence.'" Winschel, 631 F.3d at 1178-79 (quoting Cowart v. Schwieker, 662 F.2d 731, 735 (11th Cir. 1981) (emphasis added)). See also MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986) (failure to state with particularity the weight given to opinions and the reasons therefor constitutes reversible error); Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997) (failure to clearly articulate reasons for giving less weight to the opinion of treating physician constitutes reversible error).
A claimant may rely on retrospective medical opinions. See Boyd v. Heckler, 704 F.2d 1207, 1211 (11th Cir. 1983), superseded by statute on other grounds (claimant may rely on retrospective medical opinions of treating physicians). See also Garvey, 2007 WL 4403525 at *7 (N.D. Fla. Dec. 12, 2007) ("In this circuit, especially, the ALJ must point to substantial evidence in the record to discount the opinion of a treating physician, whether retrospective, contemporary, or prospective.").
Dr. Goldman is Claimant's treating orthopedic surgeon, who began treating Claimant on September 3, 2010, at four month intervals. R. 1329. On September 3, 2010, Dr. Goldman provided an Independent Orthopaedic Surgical Evaluation and completed a Multiple Impairment Questionnaire. R. 1329-43. Dr. Goldman provides a detailed review of the Claimant's past medical history, including the medical records he reviewed, and a thorough review of his physical examination. R. 1337-41. Dr. Goldman diagnosed Claimant with: right total knee joint replacement; attempt at an anterior cruciate ligament repair right knee; right knee arthritis; open reduction internal fixation of a left tibial plateau fracture; lumbar herniated disc multiple levels with neural foraminal stenosis and annual tears; lumbar derangement and radiculopathy; bimalleolar ankle fractures open reduction internal fixation; morbid obesity; hepatitis C and diabetes; lymphedema/cellutis of the right leg; and peripheral vascular disease. R. 1341. Dr. Goldman opines that Claimant's prognosis is poor based upon his multiple permanent impairments and limitations, and Dr. Goldman provides a detailed explanation of the reasons therefor. R. 1342-43.3 Dr. Goldman concludes that: "His prognosis is poor. His condition is chronic. These traumatic injuries are degenerative and there is no chance for improvement." R. 1343.
In the Multiple Impairment Questionnaire, Dr. Goldman opines that Claimant has the following functional limitations: pain is at a level of 5-6 on a scale of 1 to 10; he has been unable to completely relieve the pain with medication without unacceptable side-effects; he can sit for a total of 3-4 hours in an eight hour workday; he can stand/walk for 1-2 hours in an eight hour workday; he must be able to stand and walk every 25-30 minutes; he can frequently lift and carry 5-10 pounds and can occasionally lift 10-20 pounds; he has significant limitations doing repetitive lifting; his symptoms will increase in a competitive work environment; his pain will frequently interfere with attention and concentration; he is not a malingerer; he will need unscheduled breaks every 45-60 minutes; he will be absent from work more than three times per month; he must avoid temperature extremes; and he cannot push, pull, kneel, bend, or stoop. R. 1329-35. Dr. Goldman opines that Claimant's symptoms and limitations have been present since 2005. R. 1335. Thus, Dr. Goldman's opinion is a retrospective medical opinion. See Garvey, 2007 WL 4403525 at *7 (M.D. Fla. Dec. 12, 2007) ("A physician's retrospective [opinion] is a medical opinion of the claimant's impairments which relates back to the covered period.") (internal quotations omitted).
On August 30, 2010, Dr. Cohen conducted a psychological consultative evaluation of Claimant and completed a Psychological Impairment Questionnaire. R. 1130-40. Dr. Cohen diagnosed Claimant with bipolar II disorder, post-traumatic stress disorder, and pain disorder. R. 1134. Dr. Cohen opined that Claimant is markedly limited in the ability to: understand and remember detailed instructions; perform activities within a schedule, maintain regular attendance and be punctual within customary tolerance; sustain ordinary routine supervision; work in coordination with or proximity with others without being distracted; complete a normal workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods; accept instruction and respond to criticism; get along with co-workers; and maintain socially appropriate behavior. R. 1136-38. Dr. Cohen also opined that Claimant is moderately limited in the ability to: remember locations and work-like procedures; carry out detailed instructions; maintain attention and concentration for extended periods; respond appropriately to changes in the work setting; and to set realistic goals or make plans independently. R. 1135-38. Dr. Cohen opined that Claimant is not a malingerer. R. 1139. Dr. Cohen stated that Claimant's impairments would likely result in his absence from work more than three times per month. R. 1140. Dr. Cohen opined that Claimant's symptoms and limitations have existed since 2005. Thus, Dr. Cohen's opinion is also retrospective medical opinion.
In her decision, the ALJ found that Claimant retains the RFC to perform light work except that:
[H]e can sit, stand, and walk for thirty minutes at a time and must be allowed to change positions every thirty minutes while at his workstation. He can perform unlimited pushing and pulling with all extremities; he is limited to occasional climbing, but never climb ladders, ropes or scaffolds, and occasional balancing, stooping, kneeling, crouching, and crawling; and, he must avoid working around moving and hazardous machinery, as well as heights. Also, the claimant is limited to performing simple, routine, repetitive tasks.
R. 59-60. Thus, the opinions of Drs. Goldman and Cohen, as detailed above, are more restrictive than the ALJ's RFC.
The ALJ did not specifically discuss the opinions of Drs. Goldman and Cohen. R. 55-67. Instead, the ALJ states:
The [ALJ] has reviewed the remaining medical records submitted by the claimant to the file. However, these records describe the claimant's medical treatment outside of the pertinent period from his alleged onset date of disability in January 2005 through June 2006, the date last insured. Accordingly, the undersigned accords little weight to these medical records.
R. 64. Thus, the ALJ's decision does not even acknowledge that the record contains retrospective medical opinions, but erroneously states that the remaining records relate only to treatment received beyond the date last insured. R. 64.
As set forth above, Claimant is entitled to rely on retrospective medical opinions and the ALJ is required to state with particularity the weight given to those opinions and the reasons therefor. See Boyd, 704 F.2d at 1211 (claimant may rely on retrospective medical opinions of treating physicians); Garvey, 2007 WL 4403525 at *7 (N.D. Fla. Dec. 12, 2007) (same); Winschel, 631 F.3d at 1178-79 (ALJ must state with particularity the weight given and the reasons therefor to each medical opinion). In this case, the ALJ erred by failing to state with particularity the weight given to the opinions of Drs. Goldman and Cohen, and the reasons therefor. R. 64.4
Accordingly, it is recommended that the Court find that these errors warrant reversing and remanding the case to the Commissioner for further proceedings. See Winschel, 631 F.3d at 1178-79; MacGregor, 786 F.2d at 1053 (failure to state with particularity the weight given to opinions and the reasons therefor constitutes reversible error).5
III. CONCLUSION.
For the reasons stated above, it is RECOMMENDED that the Court:
1. REVERSE and REMAND the final decision for further proceedings pursuant to sentence four of Section 405(g);
2. Enter judgment in favor of the Claimant and against the Commissioner; and
3. Direct the Clerk to close the case.
Failure to file written objections to the proposed findings and recommendations contained in this report within fourteen (14) days from the date of its filing shall bar an aggrieved party from attacking the factual findings on appeal.
RECOMMENDED.
