1

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

 CASE NO. 20-81316-CIV-MATTHEWMAN 

JASON R. MCGEE, 

 Plaintiff,

v. 

 

KILOLO KIJAKAZI1, 

Acting Commissioner of Social Security Administration, 

 

 Defendant 

______________________________________/ 

ORDER ON MOTIONS FOR SUMMARY JUDGMENT [DEs 28, 29] 

THIS CAUSE is before the Court upon Plaintiff, Jason R. McGee’s (“Plaintiff”) Motion 

for Summary Judgment [DE 28], and Defendant, Commissioner of Social Security

Administration’s (“Defendant”) Motion for Summary Judgment [DE 29]. The motions are fully 

briefed [DEs 30, 31] and are ripe for review. The issue before the Court is whether the record 

contains substantial evidence to support the denial of benefits to Plaintiff and whether the correct 

legal standards have been applied. Lamb v. Bowen, 847 F.2d 698, 701 (11th Cir. 1988). 

I. FACTS

On July 28, 2017, Plaintiff filed a Title II application for a period of disability and disability 

insurance benefits, alleging disability beginning on June 24, 2017. [R. 17].2 The claims were

denied initially and upon reconsideration. [R. 15]. Following a hearing on June 13, 2019, the 

1 Kilolo Kijakazi became the Acting Commissioner of Social Security on July 9, 2021. Therefore, pursuant to Rule 

25(d) of the Federal Rules of Civil Procedure, Kilolo Kijakazi should be substituted for Andrew Saul as the defendant 

in this suit. No further action need be taken to continue this suit by reason of the last sentence of section 205(g) of the 

Social Security Act, 42 U.S.C. 405(g). 2 All references are to the record of the administrative proceeding filed by the Commissioner at Docket Entry 21. 

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Administrative Law Judge (“ALJ”), Wendy Hunn, issued a decision on August 1, 2019, denying 

Plaintiff’s request for benefits. [R. 17–26]. A request for review was filed by Plaintiff with the 

Appeals Council and denied on June 10, 2020. [R. 1–6]. 

A. Hearing Testimony

The ALJ held a hearing on June 13, 2019, during which Plaintiff was represented by an 

attorney. [R. 33]. Plaintiff was 48 years old at the time of the hearing. [R. 36]. His testimony 

established the following facts. 

Plaintiff completed his associate degree [R. 37]. From February 2019 through the date of 

the hearing, he was working for a retirement community, driving people around in vehicles to 

places like the grocery store and doctors’ offices. [R. 37]. He was only working about 15 hours 

per week and making $12 per hour. [R. 37]. He only worked on a part-time basis because he could 

not “really handle full-time.” [R. 37]. 

In the past, Plaintiff held several other jobs. [R. 37–38]. At some time after June 24, 2017, 

he drove vehicles from place to place for another company on a part-time basis. [R. 37–38]. Prior 

to June 24, 2017, he worked as a computer specialist for about six months. [R. 38]. He helped users 

with computer problems, imaged computers, ordered supplies and components, and worked on 

printers. [R. 38]. Plaintiff has also worked as an IT support assistant, support tech, and regional IT 

admin. [R. 38]. For each of these jobs, Plaintiff sat for a while and then had to stand. [R. 38]. He 

had to lift and carry up to 20-25 pounds. [R. 39]. Back in 2011, Plaintiff was a service advisor at 

an auto dealership. [R. 39]. He helped customers who came to get work done on their cars. [R. 30]. 

He also worked for about two months as a service appointment coordinator, setting up 

appointments. [R. 39]. The two auto dealership jobs involved sitting and walking around a lot. [R. 

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39]. In 2008, Plaintiff was a parts counter person, looking up parts for customers on the computer

and billing, locating, shipping, receiving, delivering, and ordering parts and inventory. [R. 40]. He 

had to lift or carry up to 40-50 pounds. [R. 40]. Finally, Plaintiff was an AV maintenance tech/sales 

representative for a couple of months. [R. 40]. He did tune ups on air conditioning systems and 

tried to upsell what the customer needed. [R. 40]. Plaintiff had to lift or carry up to 15-20 pounds. 

[R. 41]. 

Plaintiff cannot work full time because he gets crippling panic attacks that can occur at any 

time without warning. [R. 41]. The panic attacks prevent him from functioning and interfere with 

his concentration and memory. [R. 41]. When he is not having panic attacks, Plaintiff has general 

anxiety which makes it hard to concentrate, think, and remember things. [R. 41]. He believes he 

was terminated from his computer specialist position because of his issues focusing, although he 

was never provided with a specific reason. [R. 41]. 

When Plaintiff gets panic attacks, he gets a warm feeling all over his body. [R. 42]. The 

panic attacks can happen multiple times in a given day or he may go three days without any panic 

attacks. [R. 43]. The attacks last anywhere from 10 minutes to two hours. [R. 43]. They cause a 

“tense, horrible feeling.” [R. 43]. Plaintiff either waits for the panic attacks to pass or takes his 

Klonopin as needed, which works in about an hour or so. [R. 43]. He has had panic attacks during 

his current job, but not as much as in the past with other jobs. [R. 43–44].

Plaintiff is also being treated for general anxiety and a mood disorder. [R. 44]. He has tried 

many different medications to see which ones work best. [R. 44]. Certain medications have not 

seemed to make a difference or have made him feel worse, and he has quit taking some. [R. 44–

45]. ADHD medications made him feel even more anxious, so he stopped taking them. [R. 45]. At 

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the time of the hearing, Plaintiff was taking Lexapro, Klonopin, and Wellbutrin. [R. 46]. These

medications do not make Plaintiff feel tired, but they also do not work as well with anxiety and 

panic. [R. 46–47]. Plaintiff also uses “reading techniques, realization techniques.” [R. 44]. He 

suffers from general nervousness, a racing heart a lot of the time, and an inability to concentrate, 

think, or focus. [R. 47]. Plaintiff’s doctor at Compass Health has to constantly adjust his 

medications since his condition keeps adjusting as well. [R. 47]. Plaintiff had one skin cancer and 

now goes back to Waters Edge Dermatology every six months to check his skin. [R. 48]. 

Plaintiff has a professional relationship with Lee Beck. [R. 49]. She is a therapist who 

Plaintiff saw for months or even a year. [R. 49]. He stopped seeing her when she went on maternity 

leave. [R. 49]. Plaintiff had a new therapist at the time of the hearing who he had been seeing since 

about October 2018. [R. 49]. He did not see the therapist much because he had trouble getting 

therapy appointments. [R. 49]. His last visit was around April 2019. [R. 49]. Plaintiff did not 

provide the records from the new therapist prior to the hearing, but his counsel was trying to obtain 

them. [R. 50]. 

James Newton, the vocational expert (“VE”), testified at the hearing. [R. 51]. He classified 

Plaintiff’s past relevant work. [R. 51]. The ALJ first posed a hypothetical in which an individual 

of the same age, education, and work experience as Plaintiff had no exertional limitations but had 

the following non-exertional limitations: only simple, routine, repetitive tasks; no forced pace or 

assembly line work, teamwork, or working in tandem with others; and only occasional interaction 

with co-workers and only occasional face-to-face interaction with the general public. [R. 51]. The 

VE stated that no past relevant work could be performed. [R. 52]. However, he also stated that 

such an individual could perform the following unskilled jobs: laundry worker, cleaner, and 

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garment sorter. [R. 52]. The vocational expert also stated how many of each type of job exists 

nationally. [R. 52]. For the ALJ’s next hypothetical, he added to the first hypothetical that the 

individual would be absent from work at least two days every month. [R. 52]. The VE explained 

that the three jobs he previously listed would no longer be feasible because employers generally 

only tolerate one absence per month after the first 90-day probation period. [R. 52]. 

Plaintiff’s counsel questioned the vocational expert next. [R. 52]. Counsel adopted the 

ALJ’s first hypothetical but added that the individual would need to take unscheduled breaks 

throughout a weekday and would be off task more than 10% of the workday on a regular and 

consistent basis. [R. 52–53]. The VE testified that such an individual would not be able to sustain 

competitive employment. [R. 53]. He also testified that an acceptable tolerance for off task time 

by employers is up to 10% of the workday. [R. 53]. 

B. Medical Record Evidence

In reaching her decision to deny Plaintiff’s benefits, the ALJ reviewed the medical 

evidence of record, only the relevant portion of which is summarized chronologically below. 

Plaintiff periodically saw Dr. Mark Agresti from 2004 through 2013. [R. 305-318]. While 

the majority of Dr. Agresti’s notes are illegible, he did note on December 6, 2013, that, before 

Plaintiff started taking Klonopin in June, he had three or four panic attacks per week which could 

last more than 12 hours. [R. 306]. With the medication, Plaintiff was only having three or four

panic attacks per month. [R. 306]. Dr. Agresti also noted in December 2013 that Plaintiff was 

clean, neatly dressed, and anxious, with average, broad, and organized thought content. [R. 306]. 

Plaintiff presented to Dr. Javedul Haque at The Clinic LLC on September 1, 2016. [R. 

395]. At that time, he was on Lexapro, Effexor, and Klonopin and reported that the medication 

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was working, and he was working full-time. [R. 395]. Plaintiff also stated that, at times, he suffered 

from depression and anxiety. [R. 395]. Dr. Haque conducted a mental status examination and noted 

that Plaintiff was casually groomed and dressed, cooperative, had good eye conduct, was alert and 

oriented, had good attention and concentration, had intact memory, was mildly dysphoric and 

anxious, had normal speech, had logical and comprehensible thought process, was preoccupied 

with social stressor/mental illness but had no suicidal or homicidal ideation or paranoid delusion, 

had no hallucinations, and had good impulse control, insight, and judgment. [R. 397]. Dr. Haque 

diagnosed Plaintiff with major depressive disorder, recurrent and moderate; panic disorder without 

agoraphobia; and generalized anxiety disorder. [R. 397]. Dr. Haque determined that outpatient care 

was sufficient. [R. 397]. Plaintiff stated that he planned to try to obtain disability benefits. [R. 398]. 

Dr. Haque continued Plaintiff on the Effexor, Lexapro, and Klonopin. [R. 398]. 

On January 16, 2017, Plaintiff presented to Dr. Mark Giordano at Compass Health 

Systems. [R. 431]. Plaintiff reported feeling tired all of the time and continuously hearing ringing 

in his ears. [R. 431]. Dr. Giordano completed a mental status exam and noted that Plaintiff had a 

worried affect, increased appetite, and decreased energy, but all other findings were normal. [R. 

431-432]. For Plaintiff’s panic disorder without agoraphobia, Dr. Giordano decreased the 

prescribed Venlafaxine and continued the Klonopin. [R. 432]. 

Plaintiff returned to Dr. Giordano on February 13, 2017, for a routine follow-up. [R. 428]. 

He reported that he was compliant with medications, easily agitated, and angry that he was still 

gaining weight after discontinuing Lexapro. [R. 428]. Plaintiff also stated that he was getting no 

relief on Venlafaxine, still got panic attacks, and was taking Klonopin every two or three days. [R. 

428]. Upon examining Plaintiff, Dr. Giordano noted that he was irritable and agitated. [R. 428]. 

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Dr. Giordano stopped Venlafaxine, continued Klonopin, and started Lexapro and Abilify. [R. 429]. 

Plaintiff saw Dr. Haque again on May 3, 2017. [R. 391]. Plaintiff reported that he was not 

taking his Effexor. [R. 391]. He also reported that he was seeing another psychiatrist and was on 

Lexapro and Abilify. [R. 391]. Plaintiff further stated that he was doing better on medication but 

that he had run out of Abilify and started experiencing panic attacks again. [R. 391]. However, he 

was still working full-time. [R. 391]. After conducting a mental status examination, Dr. Haque 

prescribed Plaintiff Effexor, Abilify, Lexapro and Klonopin. [R. 394]. 

Plaintiff presented to Dr. Haque on June 6, 2017. [R. 387]. He wanted to be seen as soon 

as possible because he had a panic attack. [R. 387]. He reported doing fine until he experienced 

that panic attack. [R. 387]. Plaintiff was taking his medication as prescribed and was still working 

full-time. [R. 387]. Dr. Haque increased Plaintiff’s Lexapro and refilled his Abilify and Klonopin

prescriptions. [R. 389]. 

On August 1, 2017, Plaintiff saw Kandace Eagle, ARNP, with Compass Health Systems 

for a medication refill. [R. 425]. Plaintiff reported that his mood and sleep had been stable but that 

he had a decreased appetite. [R. 425]. Plaintiff also explained that he increased his Lexapro dose 

on his own. [R.425]. Plaintiff’s Klonopin and Lexapro were refilled, and he was started on 

Buspirone. [R. 426]. 

Plaintiff’s mother completed a Function Report-Third Party on September 21, 2017. [R. 

222–229]. 

On September 22, 2017, Plaintiff again saw Kandace Eagle, ARNP for medication 

management. [R. 422]. He reported that he stopped taking Buspirone because he “read up about 

it,” that he was seeking full disability, and that his anxiety was such that he was unable to keep a 

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job. [R. 422]. Plaintif’s Lexapro and Klonopin prescriptions were refilled. [R. 423]. 

In a Disability Determination Explanation at the Initial Level dated November 1, 2017, Dr. 

Heather Bradley Ph.D., found that Plaintiff suffered from the medically determinable impairments 

of anxiety and obsessive-compulsive disorders; depressive, bipolar, and related disorders; and 

trauma and stressor-related disorders. [R. 69]. Dr. Bradley determined that Plaintiff had mild 

limitations in understanding, remembering, or applying information and moderate limitations in 

interacting with others, adapting, or managing oneself, and concentrating, persisting or 

maintaining pace. [R. 70]. Dr. Bradley determined that the evidence did not establish the presence 

of the “C criteria.” [R. 70]. Dr. Bradley found that Plaintiff’s allegations were partially consistent 

with the record evidence, as there were signs of medically determinable impairments, “but not to 

a severe or disabling degree.” [R. 70]. She further found that Plaintiff “appears to have up to 

moderate limitations in functioning, based on mental impairments. Although the claimant’s case 

is more than not severe, it does not meet or equal any listing.” [R. 70]. Dr. Bradley did note that 

Plaintiff has “sustained concentration and persistence limitations” and “social interaction 

limitations.” [R. 71]. 

In conducting her mental functional capacity assessment, Dr. Bradley determined that 

Plaintiff is not significantly limited in his understanding and memory; his ability to carry out very 

short and simple instructions; the ability to perform activities within a schedule, maintain regular 

attendance, and be punctual within customary tolerances; the ability to sustain an ordinary routine 

without special supervision; the ability to work in coordination with or in proximity to others 

without being distracted by them; the ability to make simple work-related decisions; the ability to 

ask simple questions or request assistance; the ability to get along with coworkers or peers without 

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distracting them or exhibiting behavioral extremes; the ability to maintain socially appropriate 

behavior and to adhere to basic standards of neatness and cleanliness; the ability to be aware of 

normal hazards and take appropriate precautions; the ability to travel in unfamiliar places or use 

public transportation; and the ability to set realistic goals or make plans independently of others. 

[R. 71–73]. Dr. Bradley determined that Plaintiff has moderate limitations in his ability to carry 

out detailed instructions; the ability to maintain attention and concentration for extended periods; 

the ability to complete a normal workday and workweek without interruptions from 

psychologically based symptoms and to perform at a consistent pace without an unreasonable 

number and length of rest periods; the ability to interact appropriately with the general public; the 

ability to accept instructions and respond appropriately to criticism from supervisors; and the 

ability to respond appropriately to changes in the work setting. [R. 72–73]. Dr. Bradley explained 

that Plaintiff’s “mental impairments appear to impose some work related limitations, but do not 

preclude all work. The claimant is able to meet the mental demands of a simple vocation on a 

sustained basis, despite the limitations resulting from any impairment.” [R. 73]. The Disability 

Adjustor/Examiner, Stella J. Morris, concluded that Plaintiff is limited to unskilled work due to 

his mental impairments, with no exertional limitations. [R. 74]. Ms. Morris found that Plaintiff is 

not disabled since he can work at three occupations in which there are a significant number of jobs 

that exist in the national economy (lens cleaner, lens inserter, and sorter). [R. 75]. 

On November 2, 2017, Plaintiff again saw Kandace Eagle, ARNP at Compass Health 

Systems. [R. 419]. He reported that he stopped taking Busiperone and Abilify as he thought they 

were making his symptoms worse. [R. 419]. Plaintiff explained that he thinks he has ADHD and 

reported having a hard time with focus and attention. [R. 419]. According to Plaintiff, he was 

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unable to finish projects and was easily distracted. [R. 419]. Additionally, since he had trouble 

focusing at work, it was hard to hold a job. [R. 419]. ARNP Eagle refilled Plaintiff’s Klonopin and 

Lexapro prescriptions and prescribed Vyvanse for ADHD. [R. 420]. 

On December 1, 2017, Plaintiff again saw Kandace Eagle, ARNP. [R. 416]. He stated that 

the Vyvanse had increased his anxiety and that he could not work any way so it was difficult to 

determine if the drug had helped him focus. [R. 416]. ARNP Eagle continued Plaintiff’s Lexapro 

and Klonopin prescriptions. [R. 417]. She also stopped the Vyvanse and prescribed 

Methylphenidate for the ADHD. [R. 417]. 

On December 1, 2017, Leah Beck, a Licensed Mental Health Counselor, completed a 

Mental Capacity Assessment. [R. 412–414]. She noted that Plaintiff had been diagnosed with panic 

disorder without agoraphobia and ADHD, inattentive type. [R. 412]. LMHC Beck checked the 

boxes on a form and found that Plaintiff suffered from marked limitations in the ability to follow 

one- or two-step oral instructions to carry out a task; the ability to recognize a mistake and correct 

it, or identify and solve problems; the ability to manage psychologically based symptoms; the 

ability to respond to requests, suggestions, criticism, correction and challenges; and the ability to 

keep social interaction free of excessive irritability, sensitivity, argumentativeness, or 

suspiciousness. [R. 412–414]. She found that Plaintiff had moderate limitations in the ability to 

sequence multi-step activities; the ability to work at an appropriate and consistent pace, or 

complete tasks in a timely manner; the ability to distinguish between acceptable and unacceptable 

work performance; and the ability to set realistic goals. [R. 412–414]. LMHC Beck opined that 

Plaintiff had mild limitations in the ability to use reason and judgment to make work-related 

decisions; the ability to ignore and avoid distractions while working; and the ability to work a full 

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day without needing more than the allotted number or length of rest periods during the day. [R. 

412–414]. For all other areas, LMHC Beck either checked that Plaintiff had no limitations or had 

unknown limitations. [R. 412–414]. In coming to these conclusions, LMHC Beck noted various 

statements made to her by Plaintiff. [R. 412–414]. 

In a Disability Determination Explanation at the Reconsideration Level dated January 23, 

2018, Dr. David Tessler Ph.D., found that Plaintiff suffered from the medically determinable 

impairments of anxiety and obsessive-compulsive disorders and depressive, bipolar, and related 

disorders. [R. 83]. Dr. Tessler determined that Plaintiff had moderate limitations in understanding, 

remembering, or applying information; interacting with others; adapting or managing oneself; and 

concentrating, persisting or maintaining pace. [R. 83]. Dr. Tessler determined that the evidence 

did not establish the presence of the “C criteria.” [R. 83]. Dr. Tessler found that Plaintiff’s 

allegations were partially consistent with the record evidence, as there were signs of medically 

determinable impairments, “but not to a severe or disabling degree.” [R. 83]. He further found that 

Plaintiff “appears to have up to moderate limitations in functioning, based on mental impairments. 

Although the claimant’s case is more than not severe, it does not meet or equal any listing.” [R. 

83]. Dr. Tessler stated that the medical source opinion from Leah Beck “is not persuasive as she 

is not an acceptable source and her opinion is not consistent w/ objective evidence. I have reviewed 

all the evidence on file and agree with the initial PRT/MRFC as written except there appears to be 

moderate not mild limitations with understanding and memory.” [R. 83]. Dr. Bradley did note that 

Plaintiff has “sustained concentration and persistence limitations” and “social interaction 

limitations.” [R. 84]. 

In conducting his mental functional capacity assessment, Dr. Tessler determined that 

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Plaintiff is not significantly limited in his ability to remember locations and work-like procedures; 

the ability to understand, remember, and/or carry out very short and simple instructions; the ability 

to perform activities within a schedule, maintain regular attendance, and be punctual within 

customary tolerances; the ability to sustain an ordinary routine without special supervision; the 

ability to work in coordination with or in proximity to others without being distracted by them; the 

ability to make simple work-related decisions; the ability to ask simple questions or request 

assistance; the ability to get along with coworkers or peers without distracting them or exhibiting 

behavioral extremes; the ability to maintain socially appropriate behavior and to adhere to basic 

standards of neatness and cleanliness; the ability to be aware of normal hazards and take 

appropriate precautions; the ability to travel in unfamiliar places or use public transportation; and 

the ability to set realistic goals or make plans independently of others. [R. 85–86]. 

Dr. Tessler determined that Plaintiff has moderate limitations in his ability to understand, 

remember, and/or carry out detailed instructions; the ability to maintain attention and concentration 

for extended periods; the ability to complete a normal workday and workweek without 

interruptions from psychologically based symptoms and to perform at a consistent pace without 

an unreasonable number and length of rest periods; the ability to interact appropriately with the 

general public; the ability to accept instructions and respond appropriately to criticism from 

supervisors; and the ability to respond appropriately to changes in the work setting. [R. 85–86]. 

Dr. Tessler explained that Plaintiff’s “mental impairments appear to impose some work related 

limitations, but do not preclude all work. The claimant is able to meet the mental demands of a 

simple vocation on a sustained basis, despite the limitations resulting from any impairment.” [R. 

87]. The Disability Adjustor/Examiner, Amadiere Zuofa, concluded that Plaintiff is limited to 

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unskilled work due to his mental impairments, with no exertional limitations. [R. 88]. Ms. Zuofa

found that Plaintiff is not disabled since he can work at three occupations in which there are a 

significant number of jobs that exist in the national economy (lens cleaner, lens inserter, and 

sorter). [R. 88].

Plaintiff presented to Dr. Tanveer Sobhan at Compass Health on February 7, 2018, for a 

follow up and a medication refill. [R. 510]. Plaintiff reported that his ADHD symptoms were stable 

due to medication management. [R. 510]. Dr. Sobhan continued the Klonopin and Lexapro and 

increased the Methylphenidate dose. [R. 511]. Plaintiff saw Dr. Sobhan against on March 7, 2018, 

and reported that he was stable on his medication but that he had to cut his Methylphenidate dose 

in half due to anxiety. [R. 507]. Dr. Sobhan continued the Klonopin and Lexapro, stopped the 

Methylphenidate, and prescribed Adderall for Plaintiff’s ADHD. [R. 508]. On April 14, 2018, 

Plaintiff reported to Dr. Sobhan that he had not taken the Adderall yet and may not take it. [R. 

503]. Plaintiff also reported feeling fewer emotions with his Lexapro dose. [R. 503]. Dr. Sobhan 

decreased the Lexapro dose. [R. 505]. 

On May 17, 2018, Plaintiff presented to Dr. Daniel Stein Lifshitz at Compass Health. [R. 

500]. Plaintiff had no new complaints and had not taken Adderall. [R. 500]. Dr. Lifshitz increased 

Plaintiff’s Lexapro dose. [R. 501]. Plaintiff saw Dr. Lifshitz again on June 19, 2018. [R. 496]. Dr. 

Lifshitz continued the Klonopin, decreased the Lexapro, started Trintellix, and stopped all ADHD 

medication. [R. 498–499]. Plaintiff saw Dr. Lifshitz on July 31, 2018 and stated that he was stable 

on his medications but that he had started Trintellix a month ago, was not sure it was working, and 

was concerned about the cost of the medication. [R. 492]. Dr. Lifshitz continued the Trintellix, 

Klonopin, and Lexapro. [R. 494]. On October 23, 2018, Dr. Lifshitz refilled Plaintiff’s Klonopin, 

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Lexapro, and Rexulti. [R. 490]. On November 18, 2018, Plaintiff told Dr. Lifshitz that he was 

stable, and Dr. Lifshitz continued the Klonopin and Lexapro and increased the Rexulti. [R. 485, 

487]. 

Plaintiff presented to Dr. Sobhan at Compass Health on February 11, 2019. [R. 482]. He 

reported weight gain and feeling tired. [R. 482]. Dr. Sobhan continued the Lexapro, Rexulti, and 

Klonopin. [R. 484]. On March 11, 2019, Plaintiff reported to Dr. Sobhan that he believed his 

medication was making him sleepy. [R. 526]. However, he stated that the Rexulti was controlling 

his panic attacks. [R. 526]. Dr. Sobhan continued the Lexapro, Rexulti, and Klonopin. [R. 527]. 

Finally, Plaintiff saw Dr. Sobhan on April 8, 2019, for medication refills. [R. 523]. Plaintiff 

reported that he had little drive and motivation. [R. 523]. Plaintiff had a normal mental status exam. 

[R. 524]. Dr. Sobhan continued the Lexapro and Klonopin. [R. 525]. He stopped the Rexulti and 

started Bupropion. [R. 525]. 

C. ALJ Decision

The ALJ issued her decision on Plaintiff’s claim for benefits on August 1, 2019. [R. 17–

26]. The ALJ first found that Plaintiff met the insured status requirements of the Social Security 

Act through December 31, 2021. [R. 19]. She next found that Plaintiff had not engaged in 

substantial gainful activity since June 24, 2017, the alleged onset date. [R. 19]. The ALJ 

determined that Plaintiff has the following severe impairments: mood disorder, panic disorder, 

generalized anxiety disorder, and attention deficit hyperactivity disorder (ADHD). [R. 19]. Next, 

the ALJ found that Plaintiff did not have an impairment or combination of impairments that meets 

or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, 

Appendix 1. [R. 20]. The ALJ determined that Plaintiff had the following Residual Functional 

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Capacity (“RFC”):

to perform a full range of work at all exertional levels but with the following 

nonexertional limitations: the claimant retains the capacity to perform simple, 

routine, and repetitive tasks. There should be no forced pace or assembly line work. 

He can have occasional interaction with coworkers and occasional face-to-face 

interaction with the general public. There should be no teamwork or working in 

tandem with others. 

[R. 21]. 

The ALJ attested that she had considered all of Plaintiff’s symptoms and “the extent to 

which these symptoms can reasonably be accepted as consistent with the objective medical 

evidence and other evidence,” as well as all of the opinion evidence. [R. 21]. The ALJ found that 

Plaintiff’s “medically determinable impairments could reasonably be expected to cause the alleged 

symptoms; however, Plaintiff’s statements about intensity, persistence and the limiting effects of 

his symptoms were “somewhat inconsistent” with the objective medical evidence. [R. 22]. 

The ALJ noted the “substantial overlap in a symptomology between different mental 

impairments, as well as the inherently subjective nature of mental diagnoses.” [R. 22]. She 

explicitly considered Plaintiff’s “psychological symptoms and their effect on functioning together, 

instead of separately, regardless of the diagnostic label attached.” [R. 22]. The ALJ summarized 

the record evidence. [R. 22–23]. She found the opinions of Leah Beck, LMHC, to not be persuasive 

because they are inconsistent with the totality of the evidence received at the hearing level and 

with the treatment records. [R. 23]. The ALJ then concluded that the prior administrative medical 

findings are not persuasive” because they were “somewhat equivocal and did not define precise 

functional limitations, which renders this evidence less persuasive.” [R. 23]. The ALJ explained 

that “[w]hile the state agency medical consultants supported their findings with an explanation, 

the totality of the evidence is consistent with somewhat different limitations.” [R. 23]. 

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The ALJ concluded that Plaintiff is unable to perform any past relevant work. [R. 24]. The 

ALJ explained that Plaintiff was a younger individual on the alleged disability onset date, has at 

least a high school education, and is able to communicate in English. [R. 24]. The ALJ noted that 

transferability of jobs skills was not material to the determination of disability “because using the 

Medical-Vocational Rules as a framework supports a finding that the claimant is ‘not disabled,’ 

whether or not the claimant has transferable job skills.” [R. 24]. The ALJ concluded that there are 

jobs that exist in significant numbers in the national economy that Plaintiff can perform, including 

laundry worker, cleaner, and garment sorter, and relied on the vocational expert’s testimony. [R. 

25]. She found that Plaintiff has not been under a disability from June 24, 2017, through the date 

of the decision. [R. 26]. 

II. MOTIONS FOR SUMMARY JUDGMENT

In his Motion for Summary Judgment, Plaintiff argues that the ALJ’s decision is not 

supported by substantial evidence because the ALJ failed to properly evaluate the opinion of 

treating medical source Leah Beck, LMHC. [DE 28]. In Defendant’s Motion for Summary 

Judgment with Supporting Memorandum of Law and Response to Plaintiff’s Motion for Summary 

Judgment, Defendant asserts that the ALJ properly evaluated LMHC Beck’s medical opinion 

under the revised medical evidence regulations, and substantial evidence supports her finding that 

the opinion is not persuasive. [DE 29]. 

 III. RELEVANT LAW

Judicial review of the factual findings in disability cases is limited to determining whether 

the Commissioner’s decision is “supported by substantial evidence and based on proper legal 

standards. Substantial evidence is more than a scintilla and is such relevant evidence as a 

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reasonable person would accept as adequate to support a conclusion.” 42 U.S.C. § 405(g); 

Crawford v. Comm’r of Soc. Sec., 363 F. 3d 1155, 1158 (11th Cir. 2004) (per curiam) (internal 

citation omitted) (quoting Lewis v. Callahan, 125 F. 3d 1436, 1439 (11th Cir. 1997)). Courts may 

not “decide the facts anew, reweigh the evidence, or substitute [their] judgment for that of the 

[Commissioner].” 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)). 

The restrictive standard of review set out above applies only to findings of fact. No 

presumption of validity attaches to the Commissioner’s conclusions of law. Brown v. Sullivan, 921 

F.2d 1233, 1236 (11th Cir. 1991); Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990). “The 

[Commissioner’s] failure to apply the correct law or to provide the reviewing court with sufficient 

reasoning for determining that the proper legal analysis has been conducted mandates reversal.” 

Ingram v. Comm’r of Soc. Sec. Admin., 496 F. 3d 1253, 1260 (11th Cir. 2007) (alteration in 

original) (quoting Cornelius v. Sullivan, 936 F.2d 1143, 1145-46 (11th Cir. 1991)). 

Social Security regulations establish a five-step sequential analysis to arrive at a final 

determination of disability. 20 C.F.R. § 404.1520; 20 C.F.R. § 416.920 (a)–(f). The ALJ must first 

determine whether the claimant is presently employed. If so, a finding of non-disability is made, 

and the inquiry concludes. 20 C.F.R. § 404.1520(b). In the second step, the ALJ must determine 

whether the claimant suffers from a severe impairment or combination of impairments. If the ALJ 

finds that claimant does not suffer from a severe impairment or combination of impairments, then 

a finding of non-disability results, and the inquiry ends. 20 C.F.R. § 404.1520(c).

Step three requires the ALJ to compare the claimant’s severe impairment(s) to those in the 

listing of impairments. 20 C.F.R. § 404.1520(d), subpart P, appendix 1. Certain impairments are 

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so severe, whether considered alone or in conjunction with other impairments, that, if they are 

established, the regulations require a finding of disability without further inquiry into the 

claimant’s ability to perform other work. See Gibson v. Heckler, 762 F.2d 1516, 1518 n.1 (11th 

Cir. 1985). If the impairment meets or equals a listed impairment, disability is presumed, and 

benefits are awarded. 20 C.F.R. § 404.1520(d). 

Step four involves a determination of whether the claimant’s impairments prevent him or 

her from performing his or her past relevant work. If the claimant cannot perform his or her past 

relevant work, then a prima facie case of disability is established. 20 C.F.R. § 404.1520(e). The 

burden then shifts to the ALJ to show at step five that, despite the claimant’s impairments, he or 

she is able to perform work in the national economy in light of the claimant’s RFC, age, education, 

and work experience. 20 C.F.R. § 404.1520(f); Phillips, 357 F. 3d at 1239. In order to determine 

whether the claimant has the ability to adjust to other work in the national economy, the ALJ may 

either apply the Medical Vocational Guidelines, 20 C.F.R. pt. 404 subpart P, appendix 2, or utilize 

the assistance of a vocational expert. See Phillips, 357 F. 3d at 1239–40.

Review of the factual findings in disability cases is limited to determining whether the 

Commissioner’s decision is “supported by substantial evidence and based on proper legal 

standards. Substantial evidence is more than a scintilla and is such relevant evidence as a 

reasonable person would accept as adequate to support a conclusion.” 42 U.S.C. § 405(g); 

Crawford v. Comm’r of Soc. Sec., 363 F. 3d 1155, 1158 (11th Cir. 2004) (per curiam) (internal 

citation omitted) (quoting Lewis v. Callahan, 125 F. 3d 1436, 1439 (11th Cir. 1997)). Courts may 

not “decide the facts anew, reweigh the evidence, or substitute [their] judgment for that of the 

[Commissioner].” Phillips v. Barnhart, 357 F. 3d 1232, 1240 n.8 (11th Cir. 2004) (quoting 

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Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983)). 

The restrictive standard of review set out above applies only to findings of fact. No 

presumption of validity attaches to the Commissioner’s conclusions of law. Brown v. Sullivan, 921 

F.2d 1233, 1236 (11th Cir. 1991); Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990). “The 

[Commissioner’s] failure to apply the correct law or to provide the reviewing court with sufficient 

reasoning for determining [that] the proper legal analysis has been conducted mandates reversal.” 

Ingram v. Comm’r of Soc. Sec. Admin., 496 F. 3d 1253, 1260 (11th Cir. 2007) (quoting Cornelius 

v. Sullivan, 936 F.2d 1143, 1145-46 (11th Cir. 1991)). 

Social Security regulations establish a five-step sequential analysis to arrive at a final 

determination of disability. 20 C.F.R. § 404.1520; 20 C.F.R. § 416.920 (a)-(f). The ALJ must first 

determine whether the claimant is presently employed. If so, a finding of non-disability is made, 

and the inquiry concludes. 20 C.F.R. § 404.1520(b). In the second step, the ALJ must determine 

whether the claimant suffers from a severe impairment or combination of impairments. If the ALJ 

finds that claimant does not suffer from a severe impairment or combination of impairments, then 

a finding of non-disability results, and the inquiry ends. 20 C.F.R. § 404.1520(c).

Step three requires the ALJ to compare the claimant’s severe impairment(s) to those in the 

listing of impairments. 20 C.F.R. § 404.1520(d), subpart P, appendix I. Certain impairments are 

so severe, whether considered alone or in conjunction with other impairments, that, if they are 

established, the regulations require a finding of disability without further inquiry into the 

claimant’s ability to perform other work. See Gibson v. Heckler, 762 F.2d 1516, 1518 n.1 (11th 

Cir. 1985). If the impairment meets or equals a listed impairment, disability is presumed, and 

benefits are awarded. 20 C.F.R. § 404.1520(d). 

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Step four involves a determination of whether the claimant’s impairments prevent him or 

her from performing his or her past relevant work. If the claimant cannot perform his or her past 

relevant work, then a prima facie case of disability is established. 20 C.F.R. § 404.1520(e). The 

burden then shifts to the ALJ to show at step five that, despite the claimant’s impairments, he or 

she is able to perform work in the national economy in light of the claimant’s RFC, age, education, 

and work experience. 20 C.F.R. § 404.1520(f); Phillips, 357 F. 3d at 1239. In order to determine 

whether the claimant has the ability to adjust to other work in the national economy, the ALJ may 

either apply the Medical Vocational Guidelines, 20 C.F.R. pt. 404 subpt. P, app.2, or utilize the 

assistance of a vocational expert. See Phillips, 357 F. 3d at 1239-40. 

IV. ANALYSIS

Plaintiff argues that the ALJ’s decision is not supported by substantial evidence because 

she failed to properly evaluate the opinion of treating medical source Leah Beck, LMHC. [DE 28 

at 8]. She contends that the “examination findings cited by the ALJ were conducted in a controlled 

medical clinic and thus did not reflect Plaintiff’s mental impairments as they relate to work,” and 

this is improper and contrary to the case law. Id. at 10. According to Plaintiff, “LMHC Beck’s 

opinion was consistent with Plaintiff’s symptoms and the ALJ was aware that panic attacks are 

usually triggered by stressful environments. Thus, the ALJ’s over reliance on mental status 

examinations in a controlled medical office setting do[es] not support her determination.” Id. at 

11. Plaintiff further asserts that certain record evidence relied on by the ALJ actually was consistent 

with LMHC Beck’s opinion that Plaintiff could not handle full time work. Id. Plaintiff points out 

that the ALJ also found the opinion of the State Agency consultants to be unpersuasive, but, in 

doing so, improperly substituted her lay opinion for the medical opinion of experts. Id. at 12. 

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Plaintiff contends that “[t]he failure of the ALJ to properly evaluate the opinion of LMHC Beck is 

harmful because she proffered disabling limitations.” Id. In other words, “if properly evaluated the 

limitations opined by LMHC Beck would satisfy two marked limitations. As such Plaintiff would 

meet listing 12.04, 12.06 or 12.11. Therefore, Plaintiff would be found disabled.” Id.

In response, Defendant argues that the ALJ properly evaluated the persuasiveness of 

LMHC Beck’s medical opinion under the revised medical evidence regulations as she “correctly 

considered and applied the supportability and consistency factors set forth in those regulations and 

found the opinion ‘not persuasive.’” [DE 29 at 7]. Plaintiff further contends that substantial 

evidence supports this finding. Id. Defendant points out that LMHC Beck’s “written answers on 

the check-the-box form, however, generally each begin with the wording the ‘patient reported,’

suggest[s] that her explanation was not based on examination findings, but rather, primarily on 

Plaintiff’s subjective complaints.” Id. at 8. Defendant also points out that the record contains no 

treatment notes from LMHC Beck to support her opinion. Id. According to Defendant, the ALJ 

reasonably concluded that, despite LMHC Beck’s explanation, her opinion was inconsistent with 

the record evidence. Id. Defendant explains that the “question is not whether substantial evidence 

supports Plaintiff’s view of LMHC Beck’s opinion, but whether substantial evidence supports the 

ALJ’s finding regarding the opinion.” Id. at 10. Defendant further asserts that the “ALJ was not 

required to adopt any opinion” and was “not required to base [ ] her RFC finding on a doctor’s 

opinion.” Id. at 13.

In reply, Plaintiff contends that the ALJ failed to properly evaluate the opinion of treating 

medical source LMHC Beck, contrary to the regulations and case law. [DE 31 at 1]. Plaintiff argues 

that “even if LMHC Beck’s opinion is based on subjective complaints, that is a proper diagnostic 

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measure in dealing mental limitations. The opinion of a mental health expert is based on the 

subjective complaints of a patient coupled with their observations and expertise to reach a 

functional limitation.” Id. at 2. Plaintiff asserts that “part time work does not equate to the ability 

to do sustained work-related activities,” and, thus, the ALJ erred in “relying on his part time work 

to discount the opinion of LMHC Beck.” Id. at 3. Next, Plaintiff maintains that “LMHC Beck’s 

opinion was consistent with Plaintiff’s symptoms and the ALJ was aware that panic attacks are 

usually triggered by stressful environments.” Id.

With respect to the medical evidence of record, the Eleventh Circuit Court of Appeals has 

explained that an ALJ “may reject the opinion of any physician when the evidence supports a 

contrary conclusion” but is required “to state with particularity the weight he gives to different 

medical opinions and the reasons why.” McCloud v. Barnhart, 166 F. App’x. 410, 418-419 (11th 

Cir. 2006) (citing Bloodsworth v. Heckler, 703 F.2d 1233, 1240 (11th Cir. 1983); Sharfarz v. 

Bowen, 825 F.2d 278, 279 (11th Cir. 1987)). The law regarding how much deference to give 

treating physicians has changed for claims filed after March 27, 2017. See 20 C.F.R. § 404.1527. 

Here, Plaintiff’s claim was filed after March 27, 2017. The new regulations, which omit entirely 

the term “treating source,” state that the ALJ “will not defer or give any specific evidentiary 

weight, including controlling weight, to any medical opinion(s).” § 404.1520c(a). Instead, all 

medical opinions are to be evaluated according to the factors listed in § 404.1520c(c), of which 

the most important are the supportability and consistency of the medical opinion. See id. Moreover, 

the ALJ is not required to articulate how he or she “considered each medical opinion or prior 

administrative medical finding from one medical source individually.” 20 C.F.R. § 

404.1520c(b)(1).

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Supportability refers to the relevance of “the objective medical evidence and supporting 

explanations presented by a medical source . . . to support his or her” opinion. 20 C.F.R. § 

404.1520c(c)(1). Consistency looks to whether “the evidence from other medical sources and 

nonmedical sources in the claim” are consistent with the medical opinion presented. 20 C.F.R. § 

404.1520c(c)(2). The other factors, which the ALJ is not required to consider, § 404.1520c(b)(2), 

concern the medical source’s relationship with the claimant, § 404.1520c(c)(3), the medical 

source’s specialization, § 404.1520c(c)(4), and any “other factors that tend to support or contradict 

a medical opinion.” § 404.1520c(c)(5); see also Bonilla v. Saul, No. 19-25323-CIV, 2020 WL 

9048787, at *4–5 (S.D. Fla. Oct. 23, 2020), report and recommendation adopted, No. 19-CV25323, 2021 WL 1198296 (S.D. Fla. Mar. 30, 2021).

Thus, under the revised regulations, which the Court is applying in this case, the ALJ must 

articulate how persuasive he or she finds the medical opinions in the record and specify how he or 

she considered the supportability and consistency factors for a medical source’s opinion. See 20 

C.F.R. § 404.1520c(b). If the ALJ finds that two or more medical opinions are equally wellsupported and consistent with the record but are not necessarily the same, the ALJ must articulate 

how the ALJ considered other persuasive factors. See 20 C.F.R. § 404.1520c(b)(3).

Here, the ALJ explicitly found the opinion of Leah Beck to not be persuasive. [R. 23]. The 

ALJ explained that, while LMHC Beck supported the opinion with an explanation, the opinion 

was “totally inconsistent with the totality of the evidence at the hearing level.” [R. 23]. The ALJ 

then discussed the evidence that contradicted LMHC Beck’s opinion. [R. 23]. Therefore, the ALJ 

did sufficiently articulate how persuasive she found LMHC Beck’s opinion and did sufficiently 

specify how she considered the supportability and consistency factors. 

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The Court could stop here in its analysis, but, in an abundance of caution, also finds as 

follows. LMHC Beck’s opinions were transmitted in the form of a check-the-box evaluation. 

“[C]ourts have found that check-off forms . . . have limited probative value because they are 

conclusory and provide little narrative or insight into the reasons behind the conclusions.”

Hammersley v. Astrue, 2009 WL 3053707, at *6 (M.D. Fla. Sept. 18, 2009). While these forms 

are admissible, “they are [generally] entitled to little weight and do not constitute ‘substantial 

evidence’ on the record as a whole.” O'Leary v. Schweiker, 710 F.2d 1334, 1341 (8th Cir. 

1983); Lopez v. Saul, No. 19-23569-CIV, 2020 WL 7344634, at *9 (S.D. Fla. Aug. 6, 2020), report 

and recommendation adopted sub nom. Lopez v. Comm'r of Soc. Sec., No. CV19-23569-CIV, 2020 

WL 6579787 (S.D. Fla. Nov. 10, 2020). Thus, the LMHC Beck’s opinion has limited probative 

value, is entitled to little weight, and does not constitute substantial evidence. 

Even more importantly, NONE of LMHC Beck’s treatment notes or records were included 

in the medical evidence. Therefore, there is no objective evidence as to how many times Plaintiff 

saw LMHC Beck or what happened at those visits. Even by Plaintiff’s own vague account at the 

hearing, he saw LMHC Beck “quite a bit” for months or possibly a year. [R. 49]. Furthermore, a 

careful reading of the decision shows that the ALJ did not solely discount the opinion of LMHC 

Beck because she relied on subjective complaints. 

The Court also rejects Plaintiff’s argument that the ALJ allegedly failed to consider the fact 

that the examination findings cited by the ALJ were conducted in a controlled medical clinic and 

thus did not reflect Plaintiff’s mental impairments as they relate to work. The ALJ is not required 

to explicitly document in her decision every single finding she makes. Additionally, the primary 

case relied on by Plaintiff, Simon v. Comm'r, Soc. Sec. Admin., 7 F.4th 1094, 1105 (11th Cir. 2021), 

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involved the old version of the treating physician rule and an ALJ who discounted a treating 

physician who had provided “extensive” notes “spanning more than thirty meetings with [the 

claimant] across four years.” Plaintiff has simply taken certain quotes from the Simon opinion out 

of context and included them in his Motion for Summary Judgment. The facts in Simon are quite 

different from the facts here. Simon is inapplicable to the facts of this case.

Finally, Plaintiff’s assertion that the ALJ improperly substituted her lay opinion for the 

medical opinion of experts is completely without merit. The case cited by Plaintiff for this premise,

Clay v. Comm'r of Soc. Sec., No. 19-81103-CIV, 2021 WL 1198300, at *14 (S.D. Fla. Mar. 30, 

2021), is inapposite. In Clay, a decision authored by the Undersigned, the ALJ “offered bizarre 

suggestions which, he seemed to believe, would cure her” and thus appeared “to have improperly 

taken on the role of a therapist or mental health professional at the hearing.” Id. Nothing of the sort 

occurred in the case at hand. In sum, upon careful review of the ALJ’s decision, the ALJ clearly 

fully reviewed all of the record evidence and complied with the various social security regulations 

in coming to her conclusions. 

IV. CONCLUSION

In light of the foregoing, it is hereby ORDERED AND ADJUDGED as follows:

1. The Court finds that the record contains substantial evidence to support the denial of 

benefits to Plaintiff. The Court further finds that the ALJ applied the correct legal 

standards. Thus, the decision of the Commissioner is AFFIRMED. 

2. Accordingly, Plaintiff’s Motion for Summary Judgment [DE 28] is hereby DENIED, 

and Defendant’s Motion for Summary Judgment [DE 29] is hereby GRANTED. 

3. Judgment will be entered separately. 

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ORDERED AND ADJUDGED in Chambers at West Palm Beach, Palm Beach County, 

Florida, this 14th day of June 2022.

WILLIAM MATTHEWMAN 

United States Magistrate Judge

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