MONTE C. RICHARDSON, UNITED STATES MAGISTRATE JUDGE.
The scope of this Court's review is limited to determining whether the Commissioner applied the correct legal standards, McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir. 1988), and whether the Commissioner's findings are supported by substantial evidence, Richardson v. Perales, 402 U.S. 389, 390, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). "Substantial evidence is more than a scintilla and is such relevant evidence as a reasonable person would accept as adequate to support a conclusion." Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004). 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 v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991); 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 v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995); accord Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (stating that the court must scrutinize the entire record to determine the reasonableness of the Commissioner's factual findings).
Plaintiff argues that the ALJ erred by failing to account for Plaintiff's need for a service animal in her RFC findings and "since the ALJ did not include this fact in the RFC[,] there is no vocational evidence supporting the ALJ's step 4 determination that Plaintiff can return to his past jobs." (Doc. 16 at 4, 9.) Plaintiff urges the Court to remand for further administrative proceedings and a rehearing. (Id. at 12.) Defendant counters that the ALJ applied the correct legal standards and that her decision
The ALJ is required to consider all the evidence in the record when making a disability determination. See 20 C.F.R. §§ 404.1520(a)(3), 416.920(a)(3). With regard to medical opinion evidence, "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). Substantial weight must be given to a treating physician's opinion unless there is good cause to do otherwise. see Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997).
"`[G]ood cause' exists when the: (1) treating physician's opinion was not bolstered by the evidence; (2) evidence supported a contrary finding; or (3) treating physician's opinion was conclusory or inconsistent with the doctor's own medical records." Phillips v. Barnhart, 357 F.3d 1232, 1240-41 (11th Cir. 2004). When a treating physician's opinion does not warrant controlling weight, the ALJ must nevertheless weigh the medical opinion based on: (1) the length of the treatment relationship and the frequency of examination, (2) the nature and extent of the treatment relationship, (3) the medical evidence supporting the opinion, (4) consistency of the medical opinion with the record as a whole, (5) specialization in the medical issues at issue, and (6) any other factors that tend to support or contradict the opinion. 20 C.F.R. §§ 404.1527(c)(2)-(6), 416.927(c)(2)-(6). "However, the ALJ is not required to explicitly address each of those factors. Rather, the ALJ must provide `good cause' for rejecting a treating physician's medical opinions." Lawton v. Comm'r of Soc. Sec., 431 F. App'x 830, 833 (11th Cir. 2011) (per curiam).
Although a treating physician's opinion is generally entitled to more weight than a consulting physician's opinion, see Wilson v. Heckler, 734 F.2d 513, 518 (11th Cir. 1984) (per curiam), 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2), "[t]he opinions of state agency physicians" can outweigh the contrary opinion of a treating physician if "that opinion has been properly discounted," Cooper v. Astrue, 2008 WL 649244, *3 (M.D. Fla. Mar. 10, 2008). Further, "the ALJ may reject any medical opinion if the evidence supports a contrary finding." Wainwright v. Comm'r of Soc. Sec. Admin., 2007 WL 708971, *2 (11th Cir. Mar. 9, 2007) (per curiam); see also Sryock v. Heckler, 764 F.2d 834, 835 (11th Cir. 1985) (per curiam) (same).
"The ALJ is required to consider the opinions of non-examining state agency medical and psychological consultants because they `are highly qualified physicians and psychologists, who are also experts in Social Security disability evaluation.'" Milner v. Barnhart, 275 F. App'x 947, 948 (11th Cir. 2008) (per curiam); see also SSR 96-6p (stating that the ALJ must treat the findings of State agency medical consultants as expert opinion evidence of non-examining sources). While the ALJ is not bound by the findings of non-examining physicians, the ALJ may not ignore these opinions and must explain the weight given to them in his decision. SSR 96-6p.
When a claimant seeks to establish disability through his own testimony of pain or other subjective symptoms, the Eleventh Circuit's three-part "pain standard" applies. Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991) (per curiam). "If the ALJ decides not to credit such testimony, he must articulate explicit and adequate reasons for doing so." Id.
Id.
Once a claimant establishes that his pain is disabling through objective medical evidence from an acceptable medical source that shows a medical impairment that could reasonably be expected to produce the pain or other symptoms, pursuant to 20 C.F.R. §§ 404.1529(a), 416.929(a), "all evidence about the intensity, persistence, and functionally limiting effects of pain or other symptoms must be considered in addition to the medical signs and laboratory findings in deciding the issue of disability," Foote, 67 F.3d at 1561. See also SSR 16-3p
As stated in SSR 16-3p:
SSR 16-3p.
"[A]n individual's attempts to seek medical treatment for symptoms and to follow treatment once it is prescribed" will also be considered "when evaluating whether symptom intensity and persistence affect the ability to perform work-related activities." Id. "[I]f the frequency or extent of the treatment sought by an individual is not comparable with the degree of the individual's subjective complaints, or if the individual fails to follow prescribed treatment that might improve symptoms, [the adjudicator] may find the alleged intensity and persistence of an individual's symptoms are inconsistent with the overall evidence of record." Id. However, the adjudicator "will not find an individual's symptoms inconsistent with the evidence in the record on this basis without considering possible reasons he or she may not comply with treatment or seek treatment consistent with the degree of his or her complaints." Id. In considering an individual's treatment history, the adjudicator may consider, inter alia, one or more of the following:
Id.
At step one of the five-step sequential evaluation process,
The ALJ then found that Plaintiff had the residual functional capacity ("RFC")
(Tr. 18-19.) In making this finding, the ALJ considered Plaintiff's subjective complaints, objective medical evidence, opinion evidence, and medical treatment records. (Tr. 19-21.) The ALJ considered Plaintiff's testimony that:
(Tr. 19.) The ALJ also found that Plaintiff's "medically determinable impairments could reasonably be expected to produce the above alleged symptoms; however, the [Plaintiff's] statements concerning the intensity, persistence and limiting effects of these symptoms [were] not entirely consistent with the medical evidence and other evidence in the record . . . ." (Id.) The ALJ recognized that Plaintiff's impairments and symptoms affected his ability to work but "only to the extent they [could] reasonably be accepted as consistent with the objective medical and other evidence." (Id.)
The ALJ also concluded that the record supported "some mental limitations due to Plaintiff's depression, anxiety, and PTSD, but not to the extent that would preclude [Plaintiff] from performing all work." (Tr. 20.) The ALJ also noted that although Plaintiff's medical treatments for his mental impairments did not start until April 27, 2015, when he was diagnosed with PSTD, anxiety, and depression, "[Plaintiff] stated that his mental impairments stemmed from an incident in 2012 when he fatally shot his father-in-law in self-defense." (Id.) The ALJ further noted that:
(Id.) The ALJ then referred to a mental status evaluation finding that:
(Id.) The ALJ found that this mental status evaluation, which indicated that Plaintiff had "normal attention and concentration and only mildly impaired memory," supported the ALJ's determination that "despite some depression and PTSD, [Plaintiff] still had the mental capacity to perform some work-related activities." (Id.)
The ALJ also noted that more recent treatment records showed that Plaintiff's "mental impairments [could] be controlled with medication" and that, "with medication compliance, his mood and symptoms [could] be controlled." (Id.) The ALJ pointed to a February 2016 examination record, noting that Plaintiff "was not currently a danger to himself or others, and [was] stable for ongoing outpatient management," and also to a June 2016 examination record, noting that Plaintiff "was cooperative, calm, pleasant, had intact cognition, had normal recent and remote memory, and had fair insight and judgment." (Id.) The ALJ then noted that Plaintiff was "undergoing therapy for his mental impairments, and was given an emotional support dog."
With respect to the opinion evidence, the ALJ accorded great weight to the medical opinion of State agency mental health consultant Renee McPherson-Salandy, Ph.D.
(Id.) The ALJ then determined that, based on Plaintiff's testimony, Plaintiff's earning records, and the testimony of the vocational expert ("VE"), Plaintiff was able to perform his past relevant work of cleaner II, construction worker II, and stucco mason, but could not perform self-employed work.
Plaintiff claims that the ALJ improperly failed to incorporate his need for a service animal into the RFC finding and, since the VE failed to account for the need for a service animal, the vocational testimony cannot be substantial evidence supporting the ALJ's decision. (See Doc. 16 at 4, 9.) Specifically, Plaintiff argues that although the ALJ "acknowledged the evidence establishing Plaintiff's need for a service animal, Tr. 20-21, without challenging Ms. Davidson's judgment that Plaintiff needed it," the ALJ failed "to discuss its significance in terms of Plaintiff's work-related limitations as part of her RFC findings." (Id. at 8.) Thus, Plaintiff asks the Court to reverse the ALJ's decision and remand for further proceedings.
Defendant counters that substantial evidence supports the ALJ's decision where "the ALJ considered Plaintiff's condition as a whole and concluded that his severe impairments were not disabling." (Doc. 17 at 9.) Defendant also argues that "[i]n reaching this conclusion, the ALJ expressly noted that Plaintiff was given an emotional support dog, but implicitly determined that Plaintiff did not need the dog in order to function in the workplace." (Id. at 9-10.) In analogizing Plaintiff's use of a support animal to a hand-held assistive device like a cane or a walker, Defendant
While there does not appear to be any Eleventh Circuit authority establishing a standard for incorporating a claimant's need for a service animal in a claimant's RFC assessment, some courts have found that "the use of a service dog must be medically necessary to be considered in an RFC assessment."
McGehee, 386 F. Supp. 3d at 88.
Here, although the ALJ acknowledged that Plaintiff used an emotional support dog (Tr. 20-21 (noting that Plaintiff was "undergoing therapy for his mental impairments, and was given an emotional
While the record shows that Plaintiff was prescribed a service animal as part of his treatment program, which the ALJ acknowledged, it is unclear whether the ALJ considered and implicitly discounted this evidence in terms of Plaintiff's RFC and purported ability to perform his past jobs. see Santos, 2013 WL 5176846, *6 (finding that the ALJ committed a reversible error in failing to assess the vocational impact of the plaintiff's use of a service dog where there was some evidence in the record that "plaintiff's use of a service dog was medically necessary" and "that failure to accommodate the use thereof may have a significant adverse impact on the ability of plaintiff to function mentally, including in the workplace"); see also Meek v. Astrue, No. 3:08-cv-317-J-HTS, 2008 WL 4328227, *1 (M.D. Fla. Sept. 17, 2008) ("Although an ALJ need not discuss all of the evidence in the record, he may not ignore evidence that does not support his decision. . . . Rather, the judge must explain why significant probative evidence has been rejected.") (internal citations and quotation marks omitted).
Because there is evidence in the record indicating that Plaintiff's use of a service dog is medically necessary and is part of his treatment plan (Tr. 41, 326, 378), the undersigned finds that the ALJ's failure to explain why she rejected such probative evidence in assessing Plaintiff's RFC constitutes a reversible error. Therefore, this case will be remanded for further proceedings. In light of this conclusion, the Court need not address Plaintiff's remaining arguments. see Jackson v. Bowen, 801 F.2d 1291, 1294 n.2 (11th Cir. 1986) (per curiam); Freese v. Astrue, 2008 WL 1777722, at *3 (M.D. Fla. Apr. 18, 2008).
According, it is respectfully
2. The Clerk of Court is directed to enter judgment accordingly, terminate any pending motions, and close the file.
3. In the event that benefits are awarded on remand, any § 406(b) or § 1383(d)(2) fee application shall be filed within the parameters set forth by the Order entered in In Re: Procedures for Applying for Attorney's Fees Under 42 U.S.C. §§ 406(b) & 1383(d)(2), Case No.: 6:12-mc-124-Orl-22 (M.D. Fla. Nov. 13, 2012). This Order does not extend the time limits for filing a motion for attorney's fees under the Equal Access to Justice Act, 28 U.S.C § 2412.
(Tr. 40-41.)
(Tr. 21.)
(Tr. 326.)
