REPORT AND RECOMMENDATION

GREGORY J. KELLY, Magistrate Judge.

Christine Marie Walendy (the "Claimant") appeals from a final decision of the Commissioner of Social Security (the "Commissioner") denying her application for Supplemental Security Income ("SSI"). Doc. No. 1. Claimant argues that the Administrative Law Judge (the "ALJ") erred by: (1) failing to apply the correct legal standards to the opinions of Claimant's treating psychiatrist, Dr. Charles Buscema; and (2) giving "persuasive weight" to the opinions of two non-examining physicians, but then failing to include some limitations from those opinions in the ALJ's residual functional capacity assessment (the "RFC"). Doc. No. 16 at 8-24. For the reasons that follow, it is RECOMMENDED that the Commissioner's final decision be REVERSED and REMANDED for further proceedings.

I. THE ALJ'S FIVE-STEP DISABILITY EVALUATION PROCESS.

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.

II. STANDARD OF REVIEW.

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)).

III. ANALYSIS.

At the center of this dispute is the ALJ's handling of the opinion evidence from Claimant's treating psychiatrist, Dr. Charles Buscema. Doc. No. 16 at 8-17. Claimant raises two distinct allegations of error with respect to Dr. Buscema's opinions. Doc. No. 16 at 8-12. First, Claimant argues the ALJ erred by failing to apply the correct legal standards to Dr. Buscema's June 17, 2010 Medical Verification statement (R. 504) (the "2010 Opinion"). Doc. No. 16 at 8-12. More specifically, Claimant argues the ALJ erred by failing to state with particularity the weight given and the reasons therefor to the 2010 Opinion. Doc. No. 16 at 11-12. Second, Claimant argues that the ALJ erred by failing to demonstrate good cause, supported by substantial evidence, for giving little weight to Dr. Buscema's June 23, 2011 opinions, which are contained in a Mental Assessment to Do Work-Related Activities statement (R. 505-507) (the "2011 Opinion"). Doc. No. 16 at 8-11.

With respect to the 2010 Opinion, the Commissioner does not raise a substantive argument in opposition and, therefore, tacitly concedes error, but the Commissioner maintains that any error by the ALJ in the handling of the 2010 Opinion is harmless. Doc. No. 16 at 15-16. As to the 2011 Opinion, the Commissioner argues the ALJ provided good cause to give the opinion little weight because the opinion was not supported by Dr. Buscema's treatment notes or the more recent treatment notes of an advanced registered nurse practitioner. Doc. No. 16 at 12-17.

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 cases like this one, involving the ALJ's handling of such medical opinions, "substantial-evidence review . . . involves some intricacy." Gaskin v. Commissioner of Social Security, 533 F. App'x. 929, 931 (11th Cir. Aug. 14, 2013) (unpublished).1 In Winschel v. Comm'r of Soc. Sec., 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 constitutes an opinion, which requires the 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)). "`In 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 1179 (quoting Cowart v. Schwieker, 662 F.2d 731, 735 (11th Cir. 1981)). 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).

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.

A. The 2010 Opinion.

Dr. Buscema is a psychiatrist, who regularly treated Claimant for mental health impairments from late 2008 through 2011. See R. 17 (ALJ's decision noting length of treatment relationship); R. 449-463, 482-489, 492, 502-503, 508-519.2 On June 17, 2010, Dr. Buscema provided a Medical Verification statement to the St. Lucie Alternative Transportation System. R. 504. The statement at issue appears to have been made in attempt to obtain for Claimant a "paratransit service" or reasonable accommodations from standard public transportation in St. Lucie County, Florida under The Americans with Disabilities Act of 1990. R. 504. Dr. Buscema's 2010 Opinion provides the following responses on the form:

R. 504. Thus, in the 2010 Opinion, Dr. Buscema opines that Claimant's mental impairments cause the following limitations: she is easily distractible; has a limited attention span, diminished ability to concentrate, and flight of ideas; she cannot remember schedules and would have great difficulty with public transportation. R. 504. Dr. Buscema's statement clearly reflects judgments about the nature and severity of Claimant's impairments, as well as Claimant's mental restrictions. R. 504. Accordingly, the undersigned finds that the 2010 Opinion constitutes a medical opinion under Winschel, 631 F.3d at 1178-79, which requires the ALJ to state with particularity the weight given to it and the reasons therefor.3

In the decision, the ALJ states the following with respect to the 2010 Opinion:

R. 20. Thus, the ALJ gave no weight to the 2010 Opinion on the basis that the decisions of another governmental agency are not relevant. R. 20.

The ALJ erred in two material respects. First, the ALJ erred by applying the wrong legal standard to the 2010 Opinion from Claimant's treating physician. R. 20. See also supra pp. 4-5 (legal standard for handling medical opinions from treating physicians). Second, the ALJ clearly misconstrued the 2010 Opinion as a "decision of another government . . . agency," when it is in fact a medical opinion from Claimant's long-standing, treating psychiatrist. Compare R. 20 with R. 504. By doing so, the ALJ essentially ignored the substance of Dr. Buscema's medical opinion without good cause. R. 20. See Phillips, 357 F.3d at 1240-41 (explaining what constitutes good cause to give less than great weight to the opinions of a treating physician). Thus, the ALJ erred in addressing the 2010 opinion.

While the Commissioner does not raise any substantive argument in support of the ALJ's handling of the 2010 opinion (Doc. No. 16 at 15-16), the Commissioner argues that the ALJ's error is harmless. The Commissioner argues that Dr. Buscema's 2010 Opinion and 2011 Opinion are "essentially identical" so remand requiring the ALJ to consider "an essentially identical opinion from the same physician would not alter the outcome." Doc. No. 16 at 16. Initially, the undersigned notes that only the 2010 Opinion addresses Claimant's ability to follow schedules. Compare R. 504 with R. 505-507. Furthermore, where an ALJ ignores or fails to state with particularity the weight given to a medical opinion and the reasons therefor, the Eleventh Circuit has held that "`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 1179 (quoting Cowart, 662 F.2d at 735). See also MacGregor, 786 F.2d at 1053 (failure to state with particularity the weight given to opinions and the reasons therefore constitutes reversible error). Thus, the ALJ's error was not harmless. Accordingly, it is RECOMMENDED that the Court find the ALJ applied the incorrect legal standard in regard to the 2010 Opinion and rejected it without good cause.4

B. The 2011 Opinion.

In the decision, the ALJ provides a generally accurate description of Dr. Buscema's 2011 Opinion (R. 505-507), as follows:

R. 20. Dr. Buscema's opinion also provides that Claimant has "poor to none" ability to maintain personal appearance, and fair ability to behave in an emotionally stable manner; relate predictable in social situations; and demonstrate reliability. R. 506.

The ALJ accords the 2011 Opinion "little weight," stating:

R. 20.5 Thus, the ALJ gave little weight to the 2011 Opinion because it is unsupported by Dr. Buscema's treatment notes in the following respects: (1) treatment records note claimant making "continued improvement on medication"; and (2) treatment records show claimant is "feeling well and stable when remaining compliant with prescribed treatment." R. 20.

With respect to the first reason, Dr. Buscema's June 23, 2011 treatment records do indicate that Claimant is showing "continued improvement" in response to treatment. R. 509. However, that same treatment note reviews Claimant's symptoms and notes that Claimant: appeared disheveled; displayed anxious, expansive, irritable, and labile affect; expressed a flight of ideas and racing thoughts; but displayed communicative and cooperative attitude. R. 508.6 The ALJ does not articulate any reason why Dr. Buscema's indication that Claimant is continuing to improve in response to treatment conflicts with his 2011 Opinion or explain why the ALJ chose to credit that small portion of June 23, 2011 treatment note above all others. R. 20. At best, the ALJ's first reason for giving little weight to the 2011 Opinion is not supported by substantial evidence. At worst, it may constitute cherry picking. See McCruter v. Bowen, 791 F.2d 1544, 1548 (11th Cir. 1986) (ALJ may not focus on one aspect of the evidence while disregarding or ignoring other contrary evidence).

The ALJ's second reason for giving little weight to the June 23, 2011 opinion is also flawed. R. 20. The ALJ states that Dr. Buscema's treatment notes reflect that Claimant is feeling well and stable. R. 20. Earlier in the decision, the ALJ also states that "[i]n April 2011, Dr. Buscema reported the claimant `feels well' with controlled symptoms." R. 18. The ALJ's reference to Claimant "feeling well" with controlled symptoms refers to the psychiatrist's April 28, 2011 treatment notes. R. 510-517. The ALJ may be correct that Dr. Buscema's April 28, 2011 treatment notes state "Feels well, control [symptoms or anxiety]." R. 510.7 However, that portion of the treatment note is under the heading "PERSON'S EXPECTATIONS". R. 510. Thus, the plain meaning of the treatment note is that Claimant expects to feel well and to control her symptoms or anxiety through continued treatment. R. 510.8 The undersigned fails to see how Claimant's desire to feel well and to control her symptoms or anxiety conflicts with Dr. Buscema's 2011 Opinion.9 Accordingly, the undersigned finds that the ALJ's second reason for giving little weight to Dr. Buscema's 2011 Opinion is not supported by substantial evidence.10

Based on the forgoing, as an independent basis to remand this case for further proceedings, it is RECOMMENDED that the Court find that the ALJ failed to articulate good cause, supported by substantial evidence, for giving little weight to the 2011 Opinion.11

IV. CONCLUSION.

Based on the forgoing, it is RECOMMENDED that the Court:

A party failing to file written objection to a magistrate judge's findings or recommendations within ten (10) calendar days of issuance of the Report and Recommendation, waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions.