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Montes v. Commissioner of Social Security

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

May 25, 2018

ALEXANDER ORTIZ MONTES, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          REPORT AND RECOMMENDATION

          THOMAS B. SMITH UNITED STATES MAGISTRATE JUDGE

         Plaintiff brings this action pursuant to the Social Security Act, as amended, 42 U.S.C. §§ 405(g) and 1383(c)(3), to obtain judicial review of a final decision of Defendant, the Commissioner of the Social Security Administration (the “Commissioner”) denying his claims for Disability Insurance Benefits and Supplemental Security Income under the Act. Upon review, I respectfully recommend that the Commissioner's final decision in this case be AFFIRMED, pursuant to sentence four of 42 U.S.C. § 405(g).

         Background[1]

         On January 10, 2014, Plaintiff protectively filed for benefits, alleging an onset date of June 7, 2010 (Tr. 216-237), later amended to December 31, 2012 (Tr. 23, 52). He claimed he was disabled due to severe sleep apnea, back injury, depression, morbid obesity, stomach disorder, sinus (chronic), diabetes, high blood pressure, weakness in the hands and legs, and short term memory impairment (Tr. 266). Plaintiff's claims were denied initially and on reconsideration (Tr. 136-142, 148-158). Then, he requested and received a hearing before an administrative law judge (“ALJ”) (Tr. 160, 49-70). On June 16, 2016, the ALJ found Plaintiff not disabled (Tr. 17-48). The Appeals Council denied Plaintiff's request for review (Tr. 1-8), making the ALJ's June 2016 decision the final decision of the Commissioner. Plaintiff brings this action after exhausting his 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 published 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.

         At step one in this case the ALJ found Plaintiff had not engaged in substantial gainful activity since his alleged amended onset date (Tr. 25). At step two, the ALJ determined that Plaintiff suffered from the severe impairments of: degenerative disc disease of the lumbar spine, obesity, obstructive sleep apnea, diabetes mellitus, major depressive disorder, bipolar disorder, and anxiety (20 CFR 404.1520(c) and 416.920(c)) (Tr. 25). 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. 26-29).

         Next, the ALJ decided that Plaintiff had the residual functional capacity[2] (“RFC”) to perform

less than the full range of sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a). Specifically, the claimant has the residual functional capacity to lift, carry, push, and/or pull 10 pounds occasionally and less than 10 pounds frequently. He can sit for 6 hours out of an 8-hour workday. He can stand and walk for 2 hours out of an 8-hour workday. He can occasionally perform climbing of ramps and stairs, but never climbing of ladders, ropes and scaffolds. He can occasionally perform stooping, kneeling, crouching and crawling. He is limited to occasional exposure to dust, odors, fumes and pulmonary irritants. He is limited to occasional exposure to extreme heat and vibration and no exposure to hazards such as unprotected heights and moving machinery. Mentally, the claimant is able to understand, remember and carryout instructions which are limited to perform simple, routine and repetitive tasks. He is limited to simple work-related decisions, and occasional interaction with coworkers, supervisors, and the general public.

(Tr. 29).

         At step four, the ALJ determined that Plaintiff was unable to perform any past relevant work (Tr. 40).[3] Based on the testimony of a vocational expert (“VE”), the ALJ concluded at step five that, considering Plaintiff's age, education, work experience, and RFC, there are jobs that exist in significant numbers in the national economy that he can perform (Tr. 40). As a result, the ALJ found that Plaintiff was not under a disability at any time from December 31, 2012, through the date of the ALJ's decision (Tr. 41).

         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., quoting Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). "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).

         Discussion

         Evaluation of Medical Opinion Evidence

         Plaintiff contends that the ALJ erred in formulating his RFC by failing to adequately consider and weigh all of the limitations and opinions outlined by treating physician Dr. Jorge Guerrero. Specifically, Plaintiff refers to Dr. Guerrero's findings that he “weighed over 300 pounds with severe daily hypersomnolence, headaches in the morning, extreme fatigue during the day, inability to concentrate, memory loss, severe snoring with choking episodes in the middle of the night consistent with severe obstructive sleep apnea clinically needing a split night sleep study to confirm obstructive and possibly central sleep apnea” (Tr. 397), and his observation that Plaintiff was “extremely hypersomnolent even falling asleep during” their conversation (Tr. 719). Plaintiff ...


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