United States District Court, M.D. Florida, Orlando Division
REPORT AND RECOMMENDATION
C. IRICK UNITES STATES MAGISTRATE JUDGE.
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
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.
THE ALJ'S DECISION.
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.
found that Claimant does not have an impairment or
combination of impairments that meets or medically equals any
listed impairment. R. 22-24.
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) with the following specific
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.
STANDARD OF REVIEW.
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).
The Residual Functional Capacity
asserts that the ALJ erred by determining Claimant's RFC
“after  failing to obtain all the pertinent evidence
and  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.
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). 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).
Duty to Develop.
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.
has a basic duty to develop a full and fair record.
Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir.
1997) (per curiam). 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).
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 ...