United States District Court, M.D. Florida, Jacksonville Division
MEMORANDUM OPINION AND ORDER 
C. RICHARDSON UNITED STATES MAGISTRATE JUDGE
THIS CAUSE is before the Court on
Plaintiff's appeal of an administrative decision denying
her application for a Period of Disability and Disability
Insurance Benefits (“DIB”). Plaintiff alleges she
became disabled on October 29, 2008. (Tr. 387.) A hearing was
held before the assigned Administrative Law Judge
(“ALJ”) on November 13, 2012, at which Plaintiff
was represented by a non-attorney representative. (Tr.
96-123.) The ALJ found Plaintiff not disabled from October
29, 2008 through January 11, 2013, the date of the decision.
(Tr. 176-89.) On September 13, 2014, the Appeals Council
vacated the ALJ's January 11, 2013 decision and remanded
the case to the ALJ for further proceedings. (Tr. 197-98.) In
accordance with the remand order, the ALJ held additional
hearings on April 14, 2015 and November 17, 2015. (Tr.
124-45, 60-95.) On December 16, 2015, the ALJ issued a second
decision finding Plaintiff not disabled from October 29, 2008
through December 31, 2013, the date last
insured. (Tr. 30-51.)
is appealing the Commissioner's decision that she was not
disabled from October 29, 2008 through December 31, 2013.
Plaintiff has exhausted her available administrative remedies
and the case is properly before the Court. The undersigned
has reviewed the record, the briefs, and the applicable law.
For the reasons stated herein, the Commissioner's
decision is REVERSED and REMANDED.
Standard of Review
scope of this Court's review is limited to determining
whether the Commissioner applied the correct legal standards,
McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir.
1988), and whether the Commissioner's findings are
supported by substantial evidence, Richardson v.
Perales, 402 U.S. 389, 390 (1971). “Substantial
evidence is more than a scintilla and is such relevant
evidence as a reasonable person would accept as adequate to
support a conclusion.” Crawford v. Comm'r of
Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004). 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 district court must view the evidence
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); accord Lowery v.
Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (stating
the court must scrutinize the entire record to determine the
reasonableness of the Commissioner's factual findings).
raises three issues on appeal. First, Plaintiff argues that
the ALJ failed to reconcile the opinions of the non-examining
medical expert and orthopedic surgeon, Dr. Kwock, who
testified at the most recent hearing before the ALJ,
regarding the severity of Plaintiff's cervical and lumbar
spine conditions with the opinions of the treating
neurosurgeon, Dr. Spatola, and the treating orthopedic
surgeon, Dr. Ero, and also with Dr. Ero's lumbar spine
surgical report from November 21, 2013. Second, Plaintiff
argues that the ALJ erred in failing to articulate good cause
for not crediting the opinions of Plaintiff's long-time
treating pain physician, Dr. Florete. Finally, Plaintiff
argues that the ALJ failed to properly analyze
Plaintiff's pain and credibility. Defendant responds that
the ALJ properly evaluated the medical opinions of record and
Plaintiff's subjective complaints, and her RFC assessment
is supported by substantial evidence.
Standard for Evaluating Opinion Evidence and
ALJ is required to consider all the evidence in the record
when making a disability determination. See 20
C.F.R. § 404.1520(a)(3). With regard to medical opinion
evidence, “the ALJ must state with particularity the
weight given to different medical opinions and the reasons
therefor.” Winschel v. Comm'r of Soc.
Sec., 631 F.3d 1176, 1179 (11th Cir. 2011). Substantial
weight must be given to a treating physician's opinion
unless there is good cause to do otherwise. See Lewis v.
Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997).
cause' exists when the: (1) treating physician's
opinion was not bolstered by the evidence; (2) evidence
supported a contrary finding; or (3) treating physician's
opinion was conclusory or inconsistent with the doctor's
own medical records.” Phillips v. Barnhart,
357 F.3d 1232, 1240-41 (11th Cir. 2004). When a treating
physician's opinion does not warrant controlling weight,
the ALJ must nevertheless weigh the medical opinion based on:
(1) the length of the treatment relationship and the
frequency of examination, (2) the nature and extent of the
treatment relationship, (3) the medical evidence supporting
the opinion, (4) consistency of the medical opinion with the
record as a whole, (5) specialization in the medical issues
at issue, and (6) any other factors that tend to support or
contradict the opinion. 20 C.F.R. § 404.1527(c)(2)-(6).
a treating physician's opinion is generally entitled to
more weight than a consulting physician's opinion, see
Wilson v. Heckler, 734 F.2d 513, 518 (11th Cir.
1984) (per curiam); 20 C.F.R. § 404.1527(c)(2),
“[t]he opinions of state agency physicians” can
outweigh the contrary opinion of a treating physician if
“that opinion has been properly discounted, ”
Cooper v. Astrue, 2008 WL 649244, *3 (M.D. Fla. Mar.
10, 2008). Further, “the ALJ may reject any medical
opinion if the evidence supports a contrary finding.”
Wainwright v. Comm'r of Soc. Sec. Admin., 2007
WL 708971, *2 (11th Cir. Mar. 9, 2007) (per curiam). See
also Sryock v. Heckler, 764 F.2d 834, 835 (11th Cir.
1985) (per curiam) (same).
ALJ is required to consider the opinions of non-examining
state agency medical and psychological consultants because
they ‘are highly qualified physicians and
psychologists, who are also experts in Social Security
disability evaluation.'” Milner v.
Barnhart, 275 F. App'x 947, 948 (11th Cir. May 2,
2008) (per curiam). See also SSR 96-6p (stating that
the ALJ must treat the findings of State agency medical
consultants as expert opinion evidence of non-examining
sources). While the ALJ is not bound by the findings of
non-examining physicians, the ALJ may not ignore these
opinions and must explain the weight given to them in his
decision. SSR 96-6p.
claimant seeks to establish disability through her own
testimony of pain or other subjective symptoms, the Eleventh
Circuit's three-part “pain standard” applies.
Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir.
1991) (per curiam). “If the ALJ decides not to credit
such testimony, he must articulate explicit and adequate
reasons for doing so.” Id.
The pain standard requires (1) evidence of an underlying
medical condition and either (2) objective medical evidence
that confirms the severity of the alleged pain arising from
that condition or (3) that the objectively determined medical
condition is of such a severity that it can be reasonably
expected to give rise to the alleged pain.
claimant establishes that her “pain is disabling
through objective medical evidence that an underlying medical
condition exists that could reasonably be expected to produce
the pain, ” pursuant to 20 C.F.R. § 404.1529,
“all evidence about the intensity, persistence, and
functionally limiting effects of pain or other symptoms must
be considered in addition to the medical signs and laboratory
findings in deciding the issue of disability.”
Foote, 67 F.3d at 1561; see also SSR 96-7p
(stating that after the ALJ finds a medically determinable
impairment exists, the ALJ must analyze “the intensity,
persistence, and limiting effects of the individual's
symptoms to determine the extent to which the symptoms limit
the individual's ability to do basic work
claimant's “statements about the intensity,
persistence, or functionally limiting effects of pain or
other symptoms are not substantiated by objective medical
evidence, ” the ALJ “must make a finding on the
credibility of the individual's statements based on a
consideration of the entire case record.” SSR 96-7p.
When evaluating the credibility of an individual's
statements, the adjudicator must consider the entire case
record and give specific reasons for the weight given to the
individual's statements. . . . The reasons for the
credibility finding must be grounded in the evidence and
articulated in the determination or decision. It is not
sufficient to make a conclusory statement that “the
individual's allegations have been considered” or
that “the allegations are (or are not) credible.”
It is also not enough for the adjudicator simply to recite
the factors that are described in the regulations for
evaluating symptoms. The determination or decision must contain
specific reasons for the finding on credibility, supported by
the evidence in the case record, and must be sufficiently
specific to make clear to the individual and to any
subsequent reviewers the weight the adjudicator gave to the
individual's statements and the reasons for that weight.
determinations are the province of the ALJ, ” Moore
v. Barnhart, 405 F.3d 1208, 1212 (11th Cir. 2005), and
“[a] clearly articulated credibility finding with
substantial supporting evidence in the record will not be
disturbed by a reviewing court, ” Foote, 67
F.3d at 1562.
The ALJ's December 16, 2015 Decision
found that Plaintiff had severe impairments, including
“history of spinal fusion [at] C4-7, lumbar
degenerative disc disease, osteoarthritis, hypertension, and
obesity.” (Tr. 33.) The ALJ also found that through the
date last insured, Plaintiff had the residual functional
capacity (“RFC”) to perform light work with the
following additional restrictions:
[T]he claimant has the ability to lift and/or carry ten
pounds frequently, and twenty pounds occasionally. She can
sit for a total of seven hours during an eight-hour day. The
claimant can stand [a] total of six hours, and walk a total
of four hours, during an eight-hour day. The claimant can
continuously use her upper extremities in reaching from her
waist to chest. She can frequently reach above her shoulders,
and continuously handle, finger, and feel. She can
occasionally climb stairs and ramps, but never climb ladders,
ropes or scaffolds. She can never crawl, but can occasionally