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Lebel v. Commissioner of Social Security

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

May 31, 2018

JIL LEBEL, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          REPORT AND RECOMMENDATION

          DANIEL C. IRICK UNITES STATES MAGISTRATE JUDGE.

         Jil Lebel (Claimant) appeals the Commissioner of Social Security's final decision denying her applications for disability benefits. Doc. 1. Claimant argues that the Administrative Law Judge (ALJ) erred by: 1) determining Claimant's residual functional capacity (RFC) (a) without properly developing the record and (b) without weighing the opinions of Claimant's treating physician, Dr. Fernando Gonzalez-Portillo; 2) failing to propound to the vocational expert (VE) a hypothetical question that adequately reflected Claimant's limitations; and 3) determining Claimant's testimony concerning her pain and limitations were “not entirely consistent” with the record. Doc. 22 at 6; 20; 22. Claimant requests that the case be reversed and remanded for an award of benefits, or, in the alternative, further proceedings. Id. at 27. For the reasons set forth below, it is RECOMMENDED that the Commissioner's final decision be AFFIRMED.

         I. PROCEDURAL HISTORY.

         This case stems from Claimant's application for disability insurance benefits and supplemental security income. Doc. 22 at 1. Claimant alleged a disability onset date of January 25, 2012. R. 18. Claimant's application was denied on initial review, and on reconsideration. The matter then proceeded before the ALJ. On August 11, 2015, the ALJ held a hearing at which Claimant and her representative (an attorney) appeared. R. 18. The ALJ entered her decision on August 26, 2015, and the Appeals Council denied review on February 3, 2017. Doc. 22 at 1.

         II. THE ALJ'S DECISION.

         In her decision, the ALJ found that Claimant has the following severe impairments: peripheral neuropathy, carpal tunnel syndrome (CTS), obesity, polyarthritis / fibromyalgia / paresthesia. R. 21. The ALJ also found that Claimant has the following non-severe impairments: depression-affective disorders. R. 22.

         The ALJ found that Claimant does not have an impairment or combination of impairments that meets or medically equals any listed impairment. R. 22-24.

         The ALJ found that Claimant has the RFC to perform a full range of sedentary work as defined in 20 C.F.R. §§ 404.1567(a) and 416.967(a)[1] with the following specific limitations:

The claimant can lift ten (10) pounds occasionally and less than ten (10) pounds frequently. She can stand or walk up to two hours per an eight-hour workday. She can sit up to six hours per an eight-hour workday. She would be limited to occasional climbing. She should never climb rope, ladder or scaffolds. She must avoid concentrated exposure to extreme cold, heat, vibration, hazards, such as heights and machinery. The claimant is limited to "frequent" handling with the right hand.

R. 24. The ALJ found that Claimant was capable of performing her past relevant work as a customer service representative, telephone solicitor, and manager of finances, because that work did not require the performance of work-related activities precluded by Claimant's RFC. R. 30. In addition, the ALJ found that Claimant could also perform other work in the national economy, such as surveillance monitor, callout operator, and document preparer. R. 31-32. Thus, the ALJ found that Claimant was not disabled between her alleged onset date (January 25, 2012) through the date of the decision (August 26, 2015). R. 32.

         III. STANDARD OF REVIEW.

         The scope of the Court's review is limited to determining whether the Commissioner applied the correct legal standards, and whether the Commissioner's findings of fact are supported by substantial evidence. Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (quotations omitted). The Commissioner's findings of fact are conclusive if they are supported by substantial evidence, 42 U.S.C. § 405(g), which is defined as “more than a scintilla and is such relevant evidence as a reasonable person would accept as adequate to support a conclusion.” Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997). The Court must view the evidence as a whole, taking into account evidence favorable as well as unfavorable to the Commissioner's decision, when determining whether the decision is supported by substantial evidence. Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995). The Court may not reweigh evidence or substitute its judgment for that of the Commissioner, and, even if the evidence preponderates against the Commissioner's decision, the reviewing court must affirm it if the decision is supported by substantial evidence. Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983).

         IV. ANALYSIS.

         1. The Residual Functional Capacity

         Claimant asserts that the ALJ erred by determining Claimant's RFC “after [1] failing to obtain all the pertinent evidence and [2] failing to adequately consider and weigh all of the limitations outlined by the treating physicians.” R. 6. The first argument concerns the ALJ's duty to develop the record, particularly as it relates to alleged deficiencies concerning certain records related to Dr. Portillo, Dr. Karamali Bandealy, Dr. Roberto Pancorbo, and the Osceola Regional Medical Center. Id. The second argument, although stated in the plural, relates to the alleged opinions of Dr. Gonzalez-Portillo, one of Claimant's treating physicians. Id. The Court will address these arguments seriatim.

         The ALJ assesses the claimant's RFC and ability to perform past relevant work at step four of the sequential evaluation process. Phillips v. Barnhart, 357 F.3d 1232, 1238 (11th Cir. 2004). The RFC is “an assessment, based upon all of the relevant evidence, of a claimant's remaining ability to do work despite his impairments.” Lewis, 125 F.3d at 1440. “The RFC assessment must first identify the individual's functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis” before expressing the claimant's RFC in terms of exertional levels of work. SSR 96-8p, 1996 WL 374184, at *1 (July 2, 1996).[2] The ALJ must consider all of the claimant's medically determinable impairments, even those not designated as severe, when determining the claimant's RFC. 20 C.F.R. §§ 404.1545(a)(2), 416.945(a)(2).

         a. Duty to Develop.

         Claimant first argues that the ALJ failed to sufficiently develop the record by not obtaining certain records related to Dr. Gonzalez-Portillo, Dr. Bandealy, Dr. Pancorbo, and the Osceola Regional Medical Center. Doc. 22 at 6. According to Claimant, several of the records related to particular visits to these medical providers consist only of listed diagnoses and medications or, in the case of the medical center, discharge papers. Id. at 7-8. But Claimant, who was represented by counsel at the hearing before the ALJ and did not object to the record at that stage, neither claims that additional records exists, nor explains what those additional records may establish. Id. Thus, the Commissioner argues in response that: the ALJ was under no duty to obtain the alleged records; the very existence of the records is pure speculation; and Claimant has established no prejudice from the purported failure by the ALJ to obtain these alleged records. Id. at 15-18.

         The ALJ has a basic duty to develop a full and fair record. Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997) (per curiam).[3] This duty generally requires the ALJ to assist in gathering medical evidence, and to order a consultative examination when such an evaluation is necessary to make an informed decision. 20 C.F.R. §§ 404.1512(b), 416.912(b). There must be a showing that the ALJ's failure to develop the record led to evidentiary gaps in the record, which gaps resulted in unfairness or clear prejudice, before the court will remand a case for further development of the record. Graham, 129 F.3d at 1423 (citing Brown, 44 F.3d at 934-35).

         Here, the ALJ satisfied her duty to develop a full and fair record. The record, as Claimant notes, contains several medical records that appear to relate to visits to medical providers on particular dates. The records cited to by Claimant do contain what can primarily be described as lists of diagnoses and medications. There are other records from many of these medical providers that do contain other, additional information. Thus, Claimant implicitly asserts that there are missing medical records from these providers, and the ALJ erred by not obtaining those documents. But Claimant's argument is based upon speculation and conjecture. Indeed, there is no actual assertion by Claimant that other records do exist. And, even if they exist, there is no assertion by Claimant as to what these other records would ...


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