Nicholas A. Danella

In Tommy Johnson’s appeal, Danella reversed when the administrative law judge’s explanation for discounting a treating physician’s opinion lacked support under the regulatory supportability and consistency factors.

“Substantial evidence did not support the ALJ’s conclusion that the opinion of Dr. Sabrina Morgan-Graves, Plaintiff Johnson’s treating physician, was unpersuasive. Substantial evidence did not support the ALJ’s conclusion that the opinion of Plaintiff Johnson’s treating physician, Dr. Sabrina Morgan-Graves, was unpersuasive. On appeal, Johnson argues that Dr. Morgan-Graves’ opinion ‘[wa]s well supported by clinical and laboratory findings, and not inconsistent with other substantial evidence.’ Doc. 17 at 27. Much of the parties’ briefing focuses on the legal question of the applicable standard—i.e., whether the ALJ was required to evaluate Dr. Morgan-Graves’ opinion under the Eleventh Circuit’s ‘treating physician rule’ or the SSA’s revised regulations on the consideration of medical opinions. See, e.g., Doc. 17 at 20, 27; Doc. 18 at 1; see also Doc. 21 (Plaintiff Johnson’s supplemental brief); Doc. 24 (Commissioner’s supplemental brief). But, regardless which standard applies, the problem is evidentiary—not legal. Legally, the Eleventh Circuit’s treating physician rule long has required that an ALJ give the opinion of a treating physician ‘substantial or considerable weight unless “good cause” is shown to the contrary.’ Phillips v. Barnhart, 357 F.3d 1232, 17  Case 4:20-cv-01415-NAD Document 25 Filed 03/30/22 Page 18 of 26 1240 (11th Cir. 2004) (citation and quotation marks omitted). 1 Good cause exists under the following circumstances: ‘(1) [the] treating physician’s opinion was not bolstered by the evidence; (2) [the] evidence supported a contrary finding; or (3) [the] treating physician’s opinion was conclusory or inconsistent with the doctor’s own medical records.’ Id. at 1240–41. But in a recent unpublished opinion the Eleventh Circuit reasoned that, ‘[f]or claims filed on or after March 27, 2017, . . . no significant weight is given to statements made by treating physicians as opposed to non-treating medical sources.’ Planas ex rel. A.P. v. Commissioner of Soc. Sec., 842 F. App’x 495, 497 n.1 (11th Cir. 2021). That is because the SSA has revised its regulations on the consideration of medical opinions for all claims filed on or after March 27, 2017—like the claim in this case. 2 Under those revised regulations, an ALJ need not ‘defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s),’ including the opinion of a treating physician. 20 C.F.R. 1 The Eleventh Circuit and other Courts of Appeals developed the treating physician rule ‘as a means to control disability determinations by administrative law judges under the Social Security Act.’ See Black & Decker Disability Plan v. Nord, 538 U.S. 822, 829 (2003). 2 ‘[T]he Eleventh Circuit does not recognize the treating physician rule as independent from the regulations.’ Lemons v. Kijakazi, No. 4:20-CV-1267-RDP, 2022 WL 19626, at *6 (N.D. Ala. Jan. 3, 2022). 18  Case 4:20-cv-01415-NAD Document 25 Filed 03/30/22 Page 19 of 26 §§ 404.1520c(a), 416.920c(a). Instead, the ALJ considers the persuasiveness of a medical opinion using the following five factors: (1) supportability; (2) consistency; (3) the relationship with the claimant, including the length of the treatment relationship, the frequency of examinations, and the purpose and extent of the treatment relationship; (4) specialization; and (5) other factors, including evidence showing that the medical source has familiarity with other evidence or an understanding of the SSA’s policies and evidentiary requirements. 20 C.F.R. §§ 404.1520c(c). Supportability and consistency are the most important factors, and the ALJ must explain how the ALJ considered those factors. 20 C.F.R. §§ 404.1520c(b)(2). The ALJ may explain how the ALJ considered the other factors, but the ALJ is not required to do so. 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2). In this case, the ALJ applied those new, revised regulations. 3 But substantial evidence did not support the ALJ’s determination that Dr. Morgan-Graves’ opinion was not persuasive. And, for the same reason, there was not good cause to discount that opinion under the treating physician rule (if it still were to apply). See Phillips, 3 The ALJ stated the following: ‘As for the medical opinions . . . , the regulations provide that we will not defer or give any specific evidentiary weight, including controlling weight, to any . . . medical opinions, including those from medical sources . . . . When evaluating a medical opinion we consider supportability, consistency, relationship with the claimant, specialization, and other factors pursuant to 20 C.F.R. § 404.1520(c) and 416.920(c).’ Doc. 11-3 at 27. 19  Case 4:20-cv-01415-NAD Document 25 Filed 03/30/22 Page 20 of 26 357 F.3d at 1240–41. As explained above, Dr. Morgan-Graves (Johnson’s treating physician) opined in a ‘Physical Capacities Form’ (or ‘PCE’) dated November 18, 2019, that Johnson would be off-task 80% of an 8-hour day, and would fail to report to work 10-to-12 days per 30-day period. Doc. 11-10 at 42. Dr. Morgan-Graves also found that the side effects of Johnson’s medications for his seizures and migraines include ‘[d]izziness, sleepiness, weakness, mood swings, and poor concentration.’ Doc. 11- 10 at 42. The ALJ concluded that Dr. Morgan-Graves’ opinion was ‘not persuasive.’ Doc. 11-3 at 28. 4 The ALJ acknowledged that Dr. Morgan-Graves ‘supported her opinions with some explanation’; but, according to the ALJ, her opinions ‘[we]re not supported or consistent with the other evidence.’ Doc. 11-3 at 28. The ALJ continued: ‘Specifically, her opinions are not supported by her own treatment notes, which fail to denote the severity or frequency of seizures, migraines, or side effects to support the limitations described in her PCE.’ Doc. 11-3 at 28. ‘Additionally, the limitations are not supported by the claimant’s neurology treatment notes.’ Doc. 11-3 at 28 (citing Exhibits 4F and 6F). 4 ‘The [ALJ] considered the opinions contained in a physical capacities form (PCE) from the claimant’s primary care provider, Sabrina Morgan-Graves, M.D., wherein she opined that the claimant would be expected to miss ten to twelve days a month, and/or be off task eighty percent of a workday due to symptoms from headaches and seizures.’ Doc. 11-3 at 28 (citing Exhibit 12F). 20  Case 4:20-cv-01415-NAD Document 25 Filed 03/30/22 Page 21 of 26 It is clear that the ALJ was addressing the supportability and consistency factors. 20 C.F.R. §§ 404.1520c(c). Less clear was the factual basis—much less an adequate factual basis—for the ALJ’s determination that Dr. Morgan-Graves’ opinion was not persuasive. Again (in relevant part), the ALJ’s decision states (1) that Dr. Morgan-Graves’ ‘opinions are not supported by her own treatment notes,’ and (2) that the ‘limitations’ as to which Dr. Morgan-Graves opined ‘are not supported by the claimant’s neurology treatment notes.’ Doc. 11-3 at 28; see supra. 1. With respect to Dr. Morgan-Graves’ ‘own treatment notes,’ the record evidence directly contradicts the ALJ’s finding that those ‘notes . . . fail to denote the severity or frequency of seizures, migraines, or side effects to support the limitations described in her PCE.’ Doc. 11-3 at 28. Instead, Dr. Morgan-Graves’ treatment notes specifically and repeatedly address the severity and frequency of Johnson’s seizures and migraines. For example, a progress note dated January 11, 2019, indicated that the ‘nature of seizures is 1-2 times per month,’ and that the seizure duration ‘is 2-3 minutes.’ Doc. 11-10 at 38. At that same visit, Dr. Morgan-Graves noted that Johnson needed a neurology consultation regarding his migraines, and that Johnson had ‘diffuse’ headaches. Doc. 11-10 at 38. Moreover, in a separate—but apparently or arguably related—part of the ALJ’s residual functional capacity (RFC) determination, the ALJ found that 21  Case 4:20-cv-01415-NAD Document 25 Filed 03/30/22 Page 22 of 26 ‘[s]ubsequent follow up visits in February and June 2019 . . . fail[ed] to document the severity or frequency of headaches alleged by the claimant.’ Doc. 11-3 at 26 (citing Exhibit 11F). But the record contradicts that finding as well. In particular, on February 25, 2019, Dr. Morgan-Graves made treatment notes regarding Johnson’s seizures and headaches that were similar to those from January 11, 2019. Doc. 11-10 at 36; see supra. And, during an annual wellness examination on June 11, 2019, Dr. Morgan- Graves noted that Johnson’s former neurologist had retired, and that Johnson needed a referral to a new neurologist for seizure management. Doc. 11-10 at 33. Dr. Morgan-Graves’ treatment notes from that annual examination also indicated that Johnson had admitted to headaches in his systems review, and that Johnson had worsening ringing in his ears. Doc. 11-10 at 33. Thus, the ALJ’s findings regarding Dr. Morgan-Graves’ treatment notes were not supported by substantial evidence. 2. The record evidence also contradicts the ALJ’s finding that Dr. Morgan- Graves’ opinion ‘[was] not supported by the claimant’s neurology treatment notes.’ Doc. 11-3 at 28. A review of Johnson’s neurology medical records shows that there are ample examples of treatment notes—from both Dr. Richard H. Chin and Dr. Gary Mellick—that support and that are consistent with Dr. Morgan-Graves’ opinion. See, e.g., Doc. 11-9 at 168 (‘headache can be so severe that [Johnson] has 22  Case 4:20-cv-01415-NAD Document 25 Filed 03/30/22 Page 23 of 26 difficulty walking’); Doc. 11-9 at 147–48 (‘[Johnson] reports frequent or severe headaches’); Doc. 11-9 at 140 (‘[Johnson] reports headaches are not really improving’); Doc. 11-9 at 158 (‘[Johnson] says he constantly has a headache’). Again, it appears—or it is the court’s ‘best guess’—that the ALJ’s determination that Dr. Morgan-Graves’ opinion was not persuasive related back to a separate discussion in the ALJ’s decision about Johnson’s RFC. See Doc. 11-3 at 26. There, the ALJ discussed ‘[n]eurology treatment notes’ and found that those notes showed, among other things, ‘no more than mild pain’ in February 2018 (‘a four on a one to ten scale’), and ‘no more than mild/moderate pain’ in June 2018 (‘a pain level of five out of ten’). Doc. 11-3 at 26. But, even in that discussion, the ALJ found that those neurology treatment notes showed ‘a pain level of seven out of ten’ in both April and July 2018. Doc. 11-3 at 26. Furthermore, the ALJ appeared to make much of a ‘gap’ in treatment ‘of over a year’ or ‘for several months.’ Doc. 11-3 at 25; see also id. (‘despite no treatment in more than a year’); id. (‘despite a lack of follow-up care in several months’). But that finding too was incorrect, or at least incomplete. As explained above, the only gap in treatment was from June 2018 (when Johnson saw his neurologist) until January 2019 (when Johnson re-established care with Dr. Morgan-Graves), which 23  Case 4:20-cv-01415-NAD Document 25 Filed 03/30/22 Page 24 of 26 seems to have coincided with the retirement of Johnson’s neurologist. Doc. 11-9 at 1; Doc. 11-10 at 1. So, the ALJ’s findings regarding Johnson’s neurology treatment notes were not supported by substantial evidence either. Plus, practically speaking, part of the problem is that the court had to make the above ‘best guess’ connection at all—that is, the apparent or arguable connection between the ALJ’s determination that Dr. Morgan-Graves’ opinion was not persuasive (Doc. 11-3 at 28), and the ALJ’s separate discussion of Johnson’s RFC (Doc. 11-3 at 26). The new regulations required the ALJ to ‘explain how [the ALJ] considered the supportability and consistency factors for a medical source’s medical opinions.’ See 20 C.F.R. § 416.920c(b)(2). But, in light of the record evidence contradicting the ALJ’s findings with respect to Dr. Morgan-Graves’ own treatment notes and Johnson’s neurology treatment notes, the court itself is guessing and grasping for ‘such relevant evidence as a reasonable person would accept as adequate to support [the ALJ’s] conclusion’ that Dr. Morgan-Graves’ opinion was not persuasive. See Crawford, 363 F.3d at 1158. In a situation like this, the Eleventh Circuit has instructed that the court should not guess. The court cannot ‘decide the facts anew, reweigh the evidence,’ or substitute its own judgment for the ALJ’s. Winschel, 631 F.3d at 1178. In sum, given the contradictions discussed above, and reviewing the record 24  Case 4:20-cv-01415-NAD Document 25 Filed 03/30/22 Page 25 of 26 evidence and the ALJ’s decision, the court cannot say that substantial evidence supported the ALJ’s decision. Substantial evidence did not support the ALJ’s determination that Dr. Morgan-Graves’ opinion was unpersuasive pursuant to the supportability and consistency factors under the revised regulations,”