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Middleton v. Commissioner of Social Security

United States District Court, M.D. Florida, Orlando Division

February 27, 2018




         Plaintiff brings this action pursuant to the Social Security Act (“Act”), as amended, 42 U.S.C. § 405(g), to obtain judicial review of a final decision of the Commissioner of the Social Security Administration (“Commissioner”) denying her claim for disability insurance benefits under the Act.[1] Upon a review of the record, I respectfully recommend that the Commissioner's final decision in this case be AFFIRMED.


         Plaintiff protectively filed an application for a period of disability and disability insurance benefits on March 14, 2013, alleging that she became disabled on April 13, 2008 (Tr. 205-213). She last met the insured status requirements of the Act on December 31, 2013 (Tr. 227). Plaintiff was forty-nine years old on her date last insured (Tr. 207), with a tenth grade education and past work experience as a waitress and bartender (Tr. 41, 58). She alleged disability due to joint-osteoporosis, neck and back pain, sciatic nerve pain, “unable to walk or stand no more than 20 30 minutes, ” depression, anxiety, panic attacks, and “unable to sleep more than 4 hours.” (Tr. 230).

         Plaintiff's applications were denied initially and on reconsideration (Tr. 119-124, 138-143), and she requested and received a hearing before an administrative law judge (“ALJ”) (Tr. 37-61, 151-153). On November 27, 2015, the ALJ found Plaintiff not disabled and issued her unfavorable decision (Tr. 17-36). On November 23, 2016, the Appeals Council denied her request for review (Tr. 1-6, 14), making the November 27, 2015 opinion of the ALJ the final decision of the Commissioner.

         Plaintiff brings this action after exhausting her available administrative remedies. This dispute has been fully briefed, and was referred to me for a report and recommendation.

         The ALJ's Decision

         When determining whether an individual is disabled, the ALJ must follow the five-step sequential evaluation process which appears in 20 C.F.R. §§ 404.1520(a)(4) and 416.920(a)(4). Specifically, the ALJ must determine whether the claimant: (1) is currently employed; (2) has a severe impairment; (3) has an impairment or combination of impairments that meets or medically equals an impairment listed at 20 C.F.R. Part 404, Subpart P, Appendix 1; (4) can perform past relevant work; and (5) retains the ability to perform any work in the national economy. See Phillips v. Barnhart, 357 F.3d 1232, 1237-1240 (11th Cir. 2004). The claimant bears the burden of persuasion through step four and at step five, the burden shifts to the Commissioner to prove that other jobs exist in the national economy that the claimant can perform. Bowen v. Yuckert, 482 U.S. 137, 146 n. 5 (1987); Phillips, 357 F.3d at 1241 n.10.

         Here, at step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity from her alleged onset date through her date last insured (Tr. 22). At step two, the ALJ determined that Plaintiff suffered from the severe impairments of disorder of the spine and headaches (20 C.F.R. § 404.1520(c)) (Id.). At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (Tr. 24). Next, the ALJ decided that Plaintiff had the residual functional capacity to perform light work as defined in 20 C.F.R. § 404.1567(b) except with no more than simple routine repetitive tasks (Tr. 24). At step four, the ALJ determined that, through her date last insured, Plaintiff was unable to perform any past relevant work (Tr. 28), but, with the assistance of vocational expert testimony, the ALJ determined at step five that through the dated last insured, considering the claimant's age, education, work experience, and residual functional capacity, there were jobs that existed in significant numbers in the national economy that the claimant could have performed (Tr. 29). As a result, the ALJ concluded that Plaintiff was not under a disability from her alleged onset date through her date last insured (Tr. 30).

         Standard of Review

         The scope of the Court's review is limited to determining whether the ALJ applied the correct legal standards and whether the ALJ's findings are supported by substantial evidence. Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004). Findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is “more than a scintilla but less than a preponderance. It is such relevant evidence that a reasonable person would accept as adequate to support a conclusion.” Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (citation omitted). When 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. Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996). The district court “may not decide facts anew, reweigh the evidence, or substitute our judgment for that of the [Commissioner.]” Id. "The district court must view the record as a whole, taking into account evidence favorable as well as unfavorable to the decision." Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995) (per curiam); accord Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (the court must scrutinize the entire record to determine the reasonableness of the factual findings).


         Plaintiff contends that the Commissioner failed to apply the correct legal standards to the opinion of her treating physician. She also objects to the ALJ's reliance on the testimony of the testifying vocational expert.

         Evaluation of Medical Opinion Evidence

         The Eleventh Circuit has 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. Winschel, 631 F.3d 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).) When evaluating a physician's opinion, an ALJ considers numerous factors, including whether the physician examined the claimant, whether the physician treated the claimant, the evidence the physician presents to support his or her opinion, whether the physician's opinion is consistent with the record as a whole, and the physician's specialty. See 20 C.F.R. §§ 404.1527(c), 416.927(c). All opinions, including those of non-treating state agency or other program examiners or consultants, are to be considered and evaluated by the ALJ. See 20 C.F.R. §§ 404.1527, 416.927, and Winschel.

         Substantial weight must be given to the opinion, diagnosis and medical evidence of a treating physician unless there is good cause to do otherwise. See Lewis v. Callahan, 125 F.3d 1436 (11th Cir. 1997); Edwards v. Sullivan, 937 F.2d 580, 583 (11th Cir. 1991); 20 C.F.R. § 404.1527(d). Good cause for disregarding an opinion can exist when: (1) the opinion is not bolstered by the evidence; (2) the evidence supports a contrary finding; or (3) the opinion is conclusory or is inconsistent with the source's own treatment notes. Lewis, 125 F.3d at 1440. Regardless of whether controlling weight is appropriate, “the Commissioner ‘must specify what weight is given to a treating physician's opinion and any reason for giving it no weight.” Hill v. Barnhart, 440 F.Supp.2d 1269, 1273 (N.D. Ala. 2006) (citation omitted); see also Sullivan v. Comm'r. Soc. Sec., No. 6:12-cv-996-Orl-22, 2013 WL 4774526, at *7 (M.D. Fla. Sept. 4, 2013); Bumgardner v. Comm'r Soc. Sec., No. 6:12-cv-18-Orl-31, 2013 WL 610343, at *10 (M.D. Fla. Jan. 30, 2013); Bliven v. Comm'r Soc. Sec., No. 6:13-cv-1150-Orl-18, 2014 WL 4674201, at *3 (M.D. Fla. Sept. 18, 2014); Graves v. Comm'r Soc. Sec., No. 6:13-cv-522-Orl-22, 2014 WL 2968252, at *3 (M.D. Fla. June 30, 2014).

         Plaintiff contends that the ALJ did not properly weigh the opinions of her treating primary care physician, Cesar N. Abiera, Jr., M.D., with Daramed, LLC. As summarized by the ALJ:

[F]rom March 2012 through the end of 2013, the claimant attended monthly follow-up appointments with her primary care physician with Daramed, LLC. The claimant regularly reports experiencing neck and back pain symptoms. Objective evidence from this facility is limited, although the record routinely notes that the claimant exhibited reduced neck and back range of motion, with tenderness and muscle spasms, but she is essentially normal otherwise (i.e. extremities are normal, no neurological deficits, negative straight leg raises, etc.). Given her symptoms, the claimant was given medication including Xanax, Soma, and Lortab (Exhibits 2F, 6F, 7F and 9F). I take note that the claimant's symptoms must have been somewhat well controlled or they were not significantly limiting, as she does not appear to have been referred to a specialist and given the fact that she received only very conservative care.
Additionally, in November 2012, the claimant underwent objective imaging taken of her spine. Images of her cervical spine found only a slight decrease in her cervical intervertebral disc spacing. Images taken of her thoracic spine found only a slight increase in her thoracic curvature, decrease in vertebral body height at TS, mid superior vertebral endplate of TS, and anterior exostoses noted between T6-7 and T7-8. Images taken of her lumbar spine showed a slight decrease in the lumbar curvature, slight decrease in the posterior vertebral body height of 15, a decrease in the posterior vertebral body height noted at 13 with mid superior vertebral end plate, a decrease in posterior intervertebral disc spacing between 15-Sl with a decrease in foramen size, and a small calcific density noted just right and anterior to the L3 vertebral body (Exhibit IF). ...
In April 2013, the claimant's treating physician, Cesar Abiera, M.D., completed multiple medical source statements. Dr. Abiera affirmed that the claimant did not suffer from a mental impairment that significantly interferes with her daily functioning, although she does take Xanax for anxiety. Further, Dr. Abiera avowed that the claimant was unremarkable (i.e. normal gait and station, she ambulates unassisted, full grip strength, intact fine dexterity, and normal neurological findings) during her prior appointment on April 19, 2013. (Exhibits 3F and 4F).
In addition, in May 2013, Dr. Abiera completed a residual functional capacity questionnaire and reported that the claimant experiences chronic neck and back pain. Dr. Abiera opined that the claimant could: sit and stand each for 45 minutes at one time; sit for less than two hours in an eight- hour day; standing /walking for less than two hours in an eight-hour day; rarely lift up to 10lb.; rarely ...

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