United States District Court, M.D. Florida, Orlando Division
REPORT AND RECOMMENDATION
B. SMITH, UNITED STATES MAGISTRATE JUDGE.
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. Upon a review of the record,
I respectfully recommend that the Commissioner's final
decision in this case be AFFIRMED.
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).
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.
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.
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
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).
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
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.
of Medical Opinion Evidence
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.
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
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
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
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 ...