United States District Court, M.D. Florida, Orlando Division
REPORT AND RECOMMENDATION
GREGORY J. KELLY UNITED STATES MAGISTRATE JUDGE
Moore (the “Claimant”) appeals to the District
Court a final decision of the Commissioner of Social Security
(the “Commissioner”) denying her application for
Disability Insurance Benefits (“DIB”). Doc. No.
1. Claimant argues that the Administrative Law Judge (the
“ALJ”) committed reversible error by: 1) failing
to weigh the medical opinions contained in the treatment
notes of Dr. Randy Schwartzberg and Dr. Michael Patterson;
and 2) applying improper legal standards to the medical
opinion of Dr. Efren Baltazar. Doc. No. 15 at 9-13, 16-18,
19-20. Claimant requests that the Commissioner's decision
be reversed and remanded for further proceedings.
Id. at 21. For the reasons set forth below, it is
RECOMMENDED that the Commissioner's
final decision be REVERSED and
REMANDED for further proceedings.
31, 2013, Claimant filed her DIB application. R. 145-46.
Claimant alleges an onset date of July 12, 2013. R. 10. On
September 24, 2013, Claimant's application was denied
initially. R. 89. On November 27, 2013, Claimant's
application was denied upon reconsideration. R. 98. On
December 4, 2013, Claimant filed a request for hearing. R. 6.
On June 9, 2015, Claimant attended a hearing before the ALJ.
R. 25-56. On July 9, 2015, the ALJ issued an unfavorable
decision. R. 10-19. On July 23, 2015, Claimant requested
review of the ALJ's decision. R. 5. On September 30,
2016, the Appeals Council denied Claimant's request. R.
1-4. On December 1, 2016, Claimant filed her appeal. Doc. No.
STANDARD OF REVIEW
Social Security regulations delineate a five-step sequential
evaluation process for determining whether a claimant is
disabled. Jones v. Apfel, 190 F.3d 1224, 1228 (11th
Cir. 1999) (citing 20 C.F.R. § 404.1520). 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)). 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 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.
The District Court “may not decide the facts anew,
reweigh the evidence, or substitute [its] judgment for that
of the [Commissioner].” Phillips v. Barnhart,
357 F.3d 1232, 1240 n.8 (11th Cir. 2004) (citations and
WEIGHING MEDICAL OPINIONS
the opinions and findings of treating, examining, and
non-examining physicians is an integral part in determining
whether a claimant is disabled. In cases involving an
ALJ's handling of medical opinions,
“substantial-evidence review . . . involves some
intricacy.” Gaskin v. Comm'r of Soc. Sec.,
533 Fed.Appx. 929, 931 (11th Cir. Aug. 14,
2013). In Winschel v. Comm'r of Soc.
Sec., 631 F.3d 1176 (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 is an opinion requiring the ALJ
to state with particularity the weight given to it and the
reasons therefor. Id. at 1178-79 (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 (citations omitted). 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). An ALJ may
not “implicitly discount” or ignore any medical
opinion. Winschel, 631 F.3d at 1178-79;
MacGregor, 786 F.2d at 1053; McClurkin v. Soc.
Sec. Admin., 625 F. App'x 960, 962-63 (11th Cir.
2015) (reversible error for ALJ to fail to state weight given
to non-examining physician's opinion).
Drs. Patterson and Schwartzberg
16, 2013, Dr. Patterson, a physician based in Alabama,
performed an operation on Claimant's left shoulder. R.
485-87. On July 26, 2013, Claimant presented to Dr. Patterson
for a post-operation visit. R. 483. Dr. Patterson recommended
that Claimant return for another visit within two weeks, and
that Claimant should not work for those two weeks.
Id. Dr. Patterson also stated that he “will
let [Claimant] go back to work at that time, no lifting, no
carrying greater than [five] pounds, only use of arm by her
side.” Id. In an August 9, 2013 treatment
note, Dr. Patterson states that Claimant is struggling with
her therapy, not progressing as expected, and does not feel
ready to return to work. R. 484. Dr. Patterson recommended
that Claimant “continue work with therapy and
icing.” Id. Dr. Patterson also states
that he “will see [Claimant] back in a month and
hopefully release her back to work.” Id.
Claimant did not continue treatment with Dr. Patterson
because she moved from Alabama to Florida in August 2013.
Doc. No. 15 at 18.
October 1, 2013, Claimant presented to Dr. Schwartzberg with
complaints of left shoulder pain. R. 510. After performing a
physical examination on Claimant's left shoulder, Dr.
Schwartzberg found that Claimant had good strength in her
rotator cuff muscles, but has “pain with …
abduction in the scapular plane and external rotation with
the elbow at the side.” R. 511. Dr. Schwartzberg found
that Claimant needed more rehabilitation, and was not sure
why Claimant currently had more pain than she had before her
left shoulder operation. R. 512. Dr. Schwartzberg found
Claimant's work status to be “no lifting greater
than [five] pounds with the left upper extremity.”
Id. On November 14, 2013, Claimant attended a
follow-up visit with Dr. Schwartzberg with complaints of
soreness and lack of strength in the left shoulder. R. 519.
After performing a physical examination, Dr. Schwartzberg
found “excellent motion” in Claimant's
shoulders, but she “does have a little weakness with
… abduction in the scapular plane and external
rotation with the elbow at the side.” Id. Dr.
Schwartzberg also stated:
I am going to reevaluate [Claimant] in six weeks. I think at
that point, if she is still not where she thinks she needs to
be, a functional capacity evaluation may be the thing to do.
Her current work status will be no lifting greater than
[five] pounds with the left upper extremity.
R. 519 (emphasis in original). Thus, despite some improvement
since Claimant's last visit, Dr. Schwartzberg maintained
Claimant's work status of not lifting anything ...