United States District Court, M.D. Florida, Tampa Division
OPINION AND ORDER
MIRANDO UNITED STATES MAGISTRATE JUDGE.
Carl Glowacki seeks judicial review of the denial of his
claim for disability and disability insurance benefits
(“DIB”) by the Commissioner of the Social
Security Administration (“Commissioner”). The
Court has reviewed the record, the briefs, and the applicable
law. For the reasons set forth herein, the decision of the
Commissioner is AFFIRMED.
raises three issues on appeal: (a) whether the Appeals
Council (“AC”) properly considered new medical
evidence; (b) whether the Administrative Law Judge
(“ALJ”) properly weighed the opinion of Gary
Moskovitz, M.D.; and (c) whether the ALJ properly considered
Procedural History and Summary of the ALJ Decision
December 6, 2012, Plaintiff filed an application for a period
of disability and DIB alleging that he became disabled and
unable to work on March 3, 2010. Tr. 79, 169-71. Plaintiff
alleged disability due to back pain, right and left shoulder
pain, depression and anxiety. Tr. 79. Plaintiff's
applications were denied initially and upon reconsideration.
Tr. 104-08, 111-15. Plaintiff requested and received a
hearing before ALJ Lisa B. Martin on March 20, 2014, during
which the ALJ appeared via video
teleconference. Tr. 42, 135-39. Plaintiff, who was
represented by counsel during the hearing, appeared and
testified in person at the hearing. Tr. 42. A vocational
expert (“VE”) appeared and testified in person at
the hearing. Id.
25, 2014, the ALJ issued a decision finding Plaintiff not
disabled from March 3, 2010, through to the date of the
decision. Tr. 35. At step one, the ALJ determined that
Plaintiff met the insured status requirements of the Social
Security Act through December 31, 2015, and had not engaged
in substantial gainful activity since March 3, 2010. Tr. 27.
At step two, the ALJ determined that Plaintiff has the
following severe impairments: lumbar spine disorder
status-post discectomy surgery, right shoulder disorder
status-post surgery, a history of left shoulder disorder,
sleep apnea, obesity, anxiety and depression. Id. At
step three, the ALJ concluded that Plaintiff “does 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.”
then determined that Plaintiff has the residual functional
capacity (“RFC”) to perform a full range of light
[Plaintiff] must avoid climbing ladders, ropes, and
scaffolding as well as crawling tasks and no more than
occasional climbing of ramps and stairs, balancing, stooping,
kneeling, and crouching. [Plaintiff] needs a sit-stand option
with a change of position opportunity as often as hourly for
up to one to two minutes. [Plaintiff] is further limited to
only occasional overhead reaching tasks with the upper
extremities. [Plaintiff] must avoid dangerous work hazards
(including unprotected heights and exposed machinery) and
extreme heat and humidity conditions. Because of pain and
mental health symptoms preventing detailed decision making,
[Plaintiff] is limited to routine, uninvolved tasks not
requiring a fast assembly quota pace.
Next, the ALJ found that Plaintiff is unable to perform any
past relevant work. Tr. 33. Considering Plaintiff's age,
education, work experience and RFC, the ALJ determined there
are jobs that exist in significant numbers in the national
economy that Plaintiff can perform and therefore concluded he
was not disabled from March 3, 2010, through the date of the
decision. Tr. 34-35.
the ALJ's decision, Plaintiff filed a request for review
by the AC, which was denied on February 26, 2016. Tr. 1.
Accordingly, the July 25, 2014 decision is the final decision
of the Commissioner. Plaintiff filed an appeal in this Court
on April 29, 2016. Doc. 1. Both parties have consented to the
jurisdiction of the United States Magistrate Judge, and this
matter is now ripe for review. Docs. 13, 14.
Social Security Act Eligibility and Standard of
claimant is entitled to disability benefits when he is unable
to engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment
which can be expected to either result in death or last for a
continuous period of not less than twelve months. 42 U.S.C.
§§ 416(i)(1), 423(d)(1)(A); 20 C.F.R. §
404.1505(a). The Commissioner has established a five-step
sequential analysis for evaluating a claim of disability.
See 20 C.F.R. §416.920. The Eleventh Circuit
has summarized the five steps as follows:
(1) whether the claimant is engaged in substantial gainful
activity; (2) if not, whether the claimant has a severe
impairment or combination of impairments; (3) if so, whether
these impairments meet or equal an impairment listed in the
Listing of Impairments; (4) if not, whether the claimant has
the residual functional capacity (“RFC”) to
perform his past relevant work; and (5) if not, whether, in
light of his age, education, and work experience, the
claimant can perform other work that exists in
“significant numbers in the national economy.”
Atha v. Comm'r Soc. Sec. Admin., 616 F.
App'x 931, 933 (11th Cir. 2015) (citing 20 C.F.R.
§§ 416.920(a)(4), (c)-(g), 416.960(c)(2);
Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176,
1178 (11th Cir. 2011)). The claimant bears the burden of
persuasion through step four; and, at step five, the burden
shifts to the Commissioner. Id. at 933; Bowen v.
Yuckert, 482 U.S. 137, 146 n.5 (1987). The scope of this
Court's review is limited to determining whether the ALJ
applied the correct legal standards and whether the findings
are supported by substantial evidence. McRoberts v.
Bowen, 841 F.2d 1077, 1080 (11th Cir. 1988) (citing
Richardson v. Perales, 402 U.S. 389, 390 (1971)).
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., evidence that must do more than create a
suspicion of the existence of the fact to be established, and
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) (internal
citations omitted); see also Dyer v. Barnhart, 395
F.3d 1206, 1210 (11th Cir. 2005) (finding that
“[s]ubstantial evidence is something more than a mere
scintilla, but less than a preponderance”) (internal
Eleventh Circuit has restated that “[i]n determining
whether substantial evidence supports a decision, we give
great deference to the ALJ's fact findings.”
Hunter v. Soc. Sec. Admin., Comm'r, 808 F.3d
818, 822 (11th Cir. 2015) (citing Black Diamond Coal Min.
Co. v. Dir., OWCP, 95 F.3d 1079, 1082 (11th Cir. 1996)).
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
preponderance of the evidence is against the
Commissioner's decision. Edwards v. Su
livan, 937 F.2d 580, 584 n.3 (11th Cir.
1991); Barnes v. Su livan, 932 F.2d
1356, 1358 (11th Cir. 1991). “The district court must
view the record as a whole, taking into account evidence
favorable as well as unfavorable to the decision.”
Foote, 67 F.3d at 1560; see also 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 factual findings). It is the
function of the Commissioner, and not the courts, to resolve
conflicts in the evidence and to assess the credibility of
the witnesses. Lacina v. Comm'r, Soc. Sec.
Admin., 606 F. App'x 520, 525 (11th Cir. 2015)
(citing Grant v. Richardson, 445 F.2d 656 (5th
Cir.1971)). The Court reviews the Commissioner's
conclusions of law under a de novo standard
of review. Ingram v. Comm'r of Soc. Sec. Admin.,
496 F.3d 1253, 1260 (11th Cir. 2007) (citing Martin v.
Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)).
Whether the AC properly considered new medical evidence.
G. Bouchlas, M.D., treated Plaintiff for his back and left
leg pain from April 30, 2013 to April 9, 2014. Tr. 362-78,
479-88, 491-96. Relevant here are Dr. Bouchlas' treatment
notes from January 27, 2014 and April 9, 2014. Tr. 479-85. On
January 27, 2014, Plaintiff saw Dr. Bouchlas to review his
MRI and discuss his pain management. Tr. 483. Plaintiff
reported that since his last visit, he changed his primary
care physicians and began seeing a psychiatrist. Id.
Dr. Bouchlas noted that the result of Plaintiff's last
urine screen test was appropriate, and he used
hydrocodone for breakthrough pain. Id. Dr.
Bouchlas also indicated that Plaintiff had left shoulder
surgery in 2000 and 2006 and right shoulder surgery in 2010
and 2011. Id. At this time, Plaintiff had various
medical problems, such as cervical myofascial pain and
osteoarthrosis hip. Id. Plaintiff was taking
Hydrocodone-Acetaminophen. Tr. 484.
Bouchlas diagnosed Plaintiff with cervical myofascial pain,
bilateral shoulder repair/revisions, facet syndrome,
osteoarthrosis hip, post-procedural arthrodesis status, thoracic
or lumbosacral neuritis or radiculitis,  and spinal
stenosis of the lumbar region. Id. With regard to
his cervical pain, Plaintiff stated to Dr. Bouchlas that the
medications and treatment had improved the quality of his
life and physical functioning. Id. Dr. Bouchlas
noted that the current treatment regimen was necessary to
decrease Plaintiff's pain symptoms and to improve the
quality of Plaintiff's life, the ability to function and
sleep and mood symptoms. Id. Nonetheless, the doctor
indicated that Plaintiff had non-malignant pain syndrome not
adequately controlled by or responded to other medications,
therapy and interventions, which necessitated the use of
opioid analgesics for over seventy-two (72) hours.
Id. Dr. Bouchlas instructed Plaintiff that the use
of narcotics could be addicting and sedating. Id.
Dr. Bouchlas asked Plaintiff to follow up in three months or
sooner if symptoms progressed. Id.
regard to Plaintiff's spinal stenosis of the lumbar
region, Dr. Bouchlas included an overview of this disease as
Facet joints tend to get larger as they degenerate. This
process is the body's attempt to decrease the stress per
unit area across a degenerated joint. Unfortunately, as the
joint enlarges, it can place pressure on the nerves as they
exit the spine. Standing upright further decreases the space
available for the nerve roots, and can block the outflow of
blood from around the nerve. Congested blood then irritates
the nerve and the pain travels into the legs. Generally,
patients with spinal stenosis are comfortable if they are
sitting, but have more pain down their legs when they walk
and the pain increases with more walking (“neurogenic
claudication”). Walking while leaning over a supporting
object (such as a walker or shopping cart) can help ease the
pain, and sitting down will cause the pain to recede.
Id. After further noting treatment options for this
disease, Dr. Bouchlas indicated, “By: Peter F. Ullrich,
Jr., MD September 8, 1999 Updated February 28, 2001[;]
Adapted from www.spine-health.com[.] The information is
intended to inform and educate and is not a replacement for
medical evaluation, advice, diagnosis or treatment by a
healthcare professional.” Tr. 484-85. Dr. Bouchlas
included the identical overview of lumbar spinal stenosis in
his treatment notes from April 9, 2014. Tr. 481.
addition, Dr. Bouchlas reviewed Plaintiff's MRI and
opined that although Plaintiff had a loss of
lordosis and mild osteophyte complexes,
there was no significant stenosis. Tr. 485. The doctor
thought that Plaintiff's cervical symptoms were chronic
spasm, and Plaintiff did not need to see a surgeon for his
cervical spine. Id. Nonetheless, Plaintiff wanted to
obtain an opinion regarding his lumbar spine and expressed
his wish to see another ...