United States District Court, M.D. Florida
REPORT AND RECOMMENDATION 
MIRANDO UNITED STATES MAGISTRATE JUDGE
Edward Griffin seeks judicial review of the denial of his
claims for disability and disability insurance benefits
(“DIB”) and supplemental security income
(“SSI”) by the Commissioner of the Social
Security Administration (“Commissioner”). The
Court has reviewed the record, the Joint Memorandum (Doc.
19),  and the applicable law. For the reasons
discussed herein, the Court recommends the decision of the
Commissioner be reversed and this matter be remanded pursuant
to 42 U.S.C. § 405(g), sentence four.
Issues on Appeal
raises three issues on appeal: (1) whether substantial evidence
supports the administrative law judge's
(“ALJ”) discounting the opinion of Debra Roggow,
D.O.; (2) whether the ALJ failed to inquire into a conflict
between the vocational expert's (“VE”)
testimony and the Dictionary of Occupational Titles
(“DOT”); and (3) whether the ALJ improperly
relied on the VE's testimony to find certain jobs exist
in significant numbers in the national economy.
Procedural History and Summary of the ALJ's
5, 2014, Plaintiff filed applications for DIB and SSI,
alleging his disability began January 1, 2004, due to
coronary artery disease, triple heart bypass (10 years
prior), uncontrolled diabetes, and prostate cancer in
remission. Tr. 71, 79, 85-86, 186-87. Plaintiff's DIB
claim was denied initially and upon reconsideration because
his onset date was after his date last insured, but his SSI
claim was approved with a disability onset date of June 5,
2014. Tr. 83, 85-86, 93, 95, 103. On June 1, 2015, Plaintiff
requested a hearing before an ALJ on his DIB claim. Tr. 114.
The ALJ held a hearing on December 3, 2015, during which
Plaintiff and VE Silvio S. Reyes testified. Tr. 33-70. At the
hearing, P44laintiff amended the alleged disability onset
date to July 31, 2007. Tr. 38-39. On January 13, 2016, ALJ Hope
E. Grunberg found Plaintiff not disabled through March 31,
2008, his date last insured. Tr. 27.
one, the ALJ found Plaintiff “last met the insured
status requirements of the Social Security Act on March 31,
2008.” Tr. 20. The ALJ determined Plaintiff did not
engage in substantial gainful activity from his amended
alleged onset date, July 31, 2007, through his date last
insured, March 31, 2008. Id. Next, the ALJ found,
through the date last insured, that Plaintiff had severe
impairments of coronary artery disease, status post four
coronary artery bypass grafting and multiple stenting
procedures, peripheral vascular disease, hypertension,
hyperlipidemia and hypothyroidism. Tr. 21.
then concluded 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” through the date last insured.
Tr. 22. The ALJ then determined that Plaintiff had the
residual functional capacity (“RFC”) through the
date last insured to perform light work with certain
limitations, including that he “was limited to
understanding, remembering and carrying out simple, routine
and repetitive tasks.” Tr. 23. Next, the ALJ found
Plaintiff was unable to perform his past relevant work as a
plasterer or tile paster through the date last insured. Tr.
25. Considering Plaintiff's age, education, work
experience and RFC, the ALJ concluded that Plaintiff could
have performed other jobs that exist in significant numbers
in the national economy through the date last insured. Tr.
26. As a result, the ALJ found that Plaintiff is not
disabled. Tr. 27. Following the ALJ's decision, Plaintiff
filed a request for review by the Appeals Council, which was
denied on April 4, 2017. Tr. 1. Accordingly, the January 13,
2016 decision is the final decision of the Commissioner.
Plaintiff filed an appeal with this Court on May 22, 2017.
Doc. 1. The matter is now ripe for review.
Standard of Review
scope of this Court's review is limited to determining
whether the ALJ applied the correct legal standards and
whether the findings are supported by substantial evidence.
McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir.
1988) (citing Richardson v. Perales, 402 U.S. 389,
390, 401 (1971)). The Commissioner's findings of fact are
conclusive if supported by substantial evidence. 42 U.S.C.
§ 405(g). Substantial evidence is “more than a
scintilla, i.e., evidence that must do more than create a
suspicion of the existence of the fact to be established, and
such relevant evidence as a reasonable person would accept as
adequate to support the conclusion.” Foote v.
Chater, 67 F.3d 1553, 1560 (11th Cir. 1995) (internal
Eleventh Circuit has restated that “[i]n determining
whether substantial evidence supports a decision, we give
great deference to the ALJ's factfindings.”
Hunter v. Soc. Sec. Admin., Comm'r, 808 F.3d
818, 822 (11th Cir. 2015) (citation omitted). 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 or found that the preponderance of the evidence is
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); see also Lowery v. Sullivan, 979
F.2d 835, 837 (11th Cir. 1992) (stating that the court must
scrutinize the entire record to determine the reasonableness
of the factual findings). The Court reviews the
Commissioner's conclusions of law under a de
novo standard of review. Ingram v. Comm'r of
Soc. Sec. Admin., 496 F.3d 1253, 1260 (11th Cir. 2007)
(citing Martin v. Sullivan, 894 F.2d 1520, 1529
(11th Cir. 1990)).
Whether the ALJ properly discounted the testimony of Dr.
argues the ALJ did not provide a sufficient explanation for
discounting Dr. Roggow's opinion regarding his functional
limitations before March 31, 2008. Doc. 19 at 19. He further
contends the reasons the ALJ did give-that Dr. Roggow was not
treating Plaintiff during the relevant time period and that
the record does not support her opinion-are invalid.
Id. at 19-22. First, Plaintiff explains that SSR
83-20, 1983 WL 31249, at *3 (Jan. 1, 1983), specifically
allows inferences of disability onset when an exact date is
unavailable and the consideration of lay evidence to support
those inferences. Doc. 19 at 19. Plaintiff argues Dr. Roggow
reviewed medical evidence from before and after March 31,
2008, and the record contains evidence from Plaintiff's
wife about what he could do during that time, such that the
ALJ should not have discounted Dr. Roggow's opinion.
Id. at 19- 20.
Plaintiff argues the ALJ should not have concluded from
Plaintiff's lack of treatment in 2007 or 2008 that he was
not suffering from severe limitations because the gap in
treatment can be explained and excused by his lack of medical
insurance. Id. at 20. Plaintiff states the ALJ
cannot substitute his judgment for a medical professional by
assuming a lack of emergency room visits meant that Plaintiff
was doing well during that time. Id. Nor, Plaintiff
contends, should the ALJ have relied on Plaintiff's
statement during a visit to James C. Ricely, D.O. in December
2013 that he had been doing well, without chest pain for
years prior to the episode he was currently experiencing, to
conclude Plaintiff retained very substantial functional
capacity for a lengthy period. Id. at 21 (citing Tr.
24). Plaintiff contends the ALJ erred in relying on this
statement because it was made in 2013, not 2007 and early
2008, and he does not have to be completely unable to
function to qualify as disabled. Id.
Commissioner responds that Dr. Roggow was an examining, not
treating, physician, whose opinion was not entitled to any
deference because she saw Plaintiff for the purpose of
supporting his claim for disability. Id. at 23. The
Commissioner further argues the ALJ properly considered the
nature and extent of Dr. Roggow's relationship with
Plaintiff, and nothing in the record suggests what evidence
Dr. Roggow actually reviewed or how that evidence supported
her opinion. Id. at 24. The Commissioner points out
Plaintiff's citation of his wife's testimony to
challenge the ALJ's conclusions is unavailing because the
ALJ rejected his wife's testimony as unsupported and
inconsistent with the record. Id. at 24-25 (citing
Tr. 25). The Commissioner argues that, while the ALJ did not
delve into detail about the lack of support in the record,
she earlier explained what the record showed, which allows
for meaningful review. Id. at 25. The Commissioner
argues Plaintiff's claims regarding his lack of insurance
are false because he testified he could go to the VA any time
but did not so until 2011 when he could not put up with his
condition anymore. Id.(citing Tr. 49). The
Commissioner contends the ALJ made commonsense observations
that if Plaintiff had been in distress, he would have gone to
the emergency room, and when he finally did seek treatment,
he stated that he had not been having any issues until
recently. Id. at 25-27.
evaluating the medical opinions of record, “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). “Medical opinions are statements
from acceptable medical sources that reflect judgments about
the nature and severity of [a claimant's] impairment(s),
including [the claimant's] symptoms, diagnosis and
prognosis, what [the claimant] can still do despite
impairment(s), and [the claimant's] physical or mental
restrictions.” 20 C.F.R. §§ 404.1527(a)(1),
416.927(a)(1); Winschel, 631 F.3d at 1178-79.
determining how much weight to afford an opinion, the ALJ
considers whether there is an examining or treatment
relationship and the nature and extent thereof; whether the
source offers relevant medical evidence to support the
opinion; consistency with the record as a whole; the
specialization of the source, if any; and any other factors
that tend to support or contradict the opinion. 20 C.F.R.
§§ 404.1527(c)(1)-(6), 416.927(c)(1)-(6). Medical
source opinions may be discounted when the opinion is not
well-supported by medically acceptable clinical and
laboratory diagnostic techniques or if the opinion is
inconsistent with the record as a whole. SSR 96-2p, 1996 WL
374188 (Jul. 2, 1996); Crawford v. Comm'r of Soc.
Sec., 363 F.3d 1155, 1159-60 (11th Cir. 2004).
saw Dr. Roggow for a disability evaluation. Tr.
1105. Dr. Roggow performed an examination of
Plaintiff on December 1, 2015, and completed a Medical Source
Statement (“MSS”) form that same day. Tr.
1102-1108. In the MSS, Dr. Roggow opined, as of March 31,
2008, Plaintiff could never lift or carry 20 pounds or more,
citing as supporting “objective
evidence/diagnosis”: “shortness of breath, chest
pain-office observations.” Tr. 1102. She further
opined, again as of March 31, 2008, Plaintiff could stand
and/or walk for a total of less than 2 hours in an 8-hour
workday, citing “limited endurance, short of breath in
office” as the “objective
evidence/diagnosis” supporting her opinion.
Id. Citing no objective evidence/diagnosis for
support, Dr. Roggow also opined that, as of March 31, 2008,
Plaintiff would need to take a 15-20 minute break for medical
reasons every 2 hours, as well as elevate his legs above his
heart for an unspecified amount of time. Id. Dr.
Roggow also checked the “Yes” boxes indicating
that (1) her opinions were provided within a reasonable
degree of medical certainty; and (2) she “read the
medical records before and after the onset date of
disability.” Id. In her examination notes,
after noting a history of coronary heart disease with a
quadruple bypass in 2001 and stents placed multiple arteries,
most recently in April 2015, and a pacemaker insertion in May
2015, Dr. Roggow stated her impression was Plaintiff had a
limited ability to lift and carry more than 10 pounds and
could not walk more than 50 yards “without stopping to
rest due to chest pain and shortness of breath. Disabled from
gainful employment due to cardiac condition.” Tr.
succinctly addressed Dr. Roggow's opinion:
The undersigned also considered the December 1, 2015, opinion
of Debra Roggow, D.O. (9F; 10F). Although Dr. Roggow's
opinion concerns [Plaintiff's] functional limitations as
of March 31, 2008, the record does not establish that she
treated him at that time, and does not support her opinion
that [Plaintiff] is limited to the sedentary exertional
level.(10F at 1). Accordingly, the undersigned
gave little weight to this opinion as well.
Tr. 25. As an initial matter, Dr. Roggow's MSS opinion
essentially is an assessment of Plaintiff's ability to
work or RFC, and the ALJ was not required to accord any
weight to this assessment. “A claimant's [RFC] is a
matter reserved for the ALJ's determination, and while a
physician's opinion on the matter will be considered, it
is not dispositive.” Beegle v. Soc. Sec. Admin.,
Comm'r, 482 Fed.Appx. 483, 486 (11th Cir. 2012).
Thus, the Commissioner “will not give any special
significance to the source of an opinion on issues reserved
to the Commissioner. . . .” 20 C.F.R. §
404.1527(d)(3), 416.927(d)(3); see SSR 96-6p, 1996
WL 374180 (July 2, 1996). Nonetheless, the Court recommends
the ALJ adequately articulated specific reasons for
discounting Dr. Roggow's opinions, and the record
reflects good cause for doing so. See e.g.,
Crawford, 363 F.3d at 1155; Phi
lips v. Barnhart, 357 F.3d 1232, 1241
(11th Cir. 2014). The ALJ “may reject any medical
opinion if the evidence supports a contrary finding.”
Sharfarz v. Bowen, 825 F.2d 278, 280 (11th Cir.
1987) (citation omitted).
noted by the Commissioner, Dr. Roggow was not Plaintiff's
treating physician, but instead saw him only one time, seven
years after the date he was last insured. Doc. 19 at 24; Tr.
1101-1108. Although she indicated on the MSS form by checking
a box that she had reviewed records before and after the
onset date of disability, there is no indication of what
those records were or how they informed her opinion that
Plaintiff's condition existed as of March 31, 2008. Tr.
1101. Indeed, in making his argument, Plaintiff does not cite
to Dr. Roggow's records but refers the Court to a report
Plaintiff made to Dr. Ricely on December 24, 2013, in which
Plaintiff stated he had 30-45 seconds of chest pain several
weeks before that went away after resting, which was
“similar to what he had prior to his bypass in
2001.” Tr. 718. There is no indication Dr. Roggow
reviewed this record, and it does not purport to reflect
Plaintiff's condition consistently from 2001 through to
the date of the record. Tr. 718. As the ALJ found, Dr.
Ricely's record suggests the opposite, because Plaintiff
had not felt chest pain like what he experienced in 2001
“for years.” Id. Additionally, Dr.
Roggow gave no explanation of how she concluded that
Plaintiff's condition existed in 2008. For those
limitations for which she provided supporting observations,
both were based on her examination of Plaintiff that day. Tr.
1101. Accordingly, the ALJ did not err in discounting her
opinion as unrelated in time to Plaintiff's condition
before the date he was last insured.
evidence supports the ALJ's conclusion because her
opinion was unsupported by any reference to medical records
from the relevant time period or even her own determinations
that such limitations had persisted during that time.
See Phi lips, 357 F.3d at
1240-41 (holding an ALJ may properly discount the opinion
even of a treating physician if the opinion is unsupported by
objective medical evidence, is merely conclusory, or is
inconsistent with the physician's own medical records).
Although an ALJ generally will give more weight to the
opinion of an examining physician over one who has not
examined the claimant, the opinion of a non-treating
physician is not entitled to any deference or special
consideration. 20 C.F.R. §§ 404.1527(c)(1);
416.927(c)(1); McSwain v. Bowen, 814 F.2d 617, 619
(11th Cir. 1987).
the second argument, Plaintiff contends the record supports a
finding that he was limited to sedentary work, but he does
not cite to any evidence beyond Dr. Ricely's
note. Doc. 19 at 22. Even if Plaintiff could
do so, the question for the Court is whether substantial
evidence supports the ALJ's findings, not whether the
record could support a different one. Parks v.
Comm'r, Soc. Sec. Admin., 783 F.3d 847, 850 (11th
Cir. 2015); see also Edwards, 937 F.2d at
584 n.3; Barnes, 932 F.2d at 1358. The ALJ focused
on the lack of evidence from the relevant time period, noting
that Plaintiff had a four-vessel coronary artery bypass graft
in 2001, then numerous cardiac catheterizations in 2002,
2003, and 2005. Tr. 24, 1069-71, 1078-81, 1087- 88, 1093-98.
The ALJ noted when Plaintiff saw Joseph Califano, M.D. in
2006, he was doing well. Tr. 24, 379. In July 2007, Plaintiff
underwent an additional cardiac catheterization after
experiencing four months of pain with activity. Tr. 379-82,
1072-73. The ALJ concluded the 2007 procedure was successful.
Tr. 24. She based this conclusion on the absence of treatment
after the procedure until Plaintiff began experiencing chest
pain and shortness of breath in 2013. Tr. 24; 718. At that
time, Plaintiff reported that he had been doing well for
years until the recent episode. Tr. 24; 718.
does not dispute this absence of medical records. He contends
instead that the gap in treatment following his 2007 surgery
should not be held against him because it was based on his
inability to afford medical treatment. Doc. 19 at 20. The ALJ
addressed this issue by noting “the absence of even
emergency room treatment records in the years following the
2007 procedure indicates that it was successful in
alleviating his most functionally limited symptoms, and that
he did not experience any medical emergencies during this
period.” Tr. 24. The ALJ further noted that
Plaintiff's statement to Dr. Ricely that he had been
doing well for years supported the ALJ's conclusion that
he had alleviated at least some of his symptoms for a rather
lengthy period. Id. Substantial evidence supports
this conclusion, both in Dr. Ricely's notes and the
absence of any emergency room visits from the records that
would suggest he was suffering from the degree of
debilitation he claimed. Tr. 718.
situation is distinguishable from the case he cites,
Sneed v. Comm'r of Soc. Sec., No.
6:13-cv-1453-Orl-TBS, 2015 WL 1268257 (M.D. Fla. Mar. 19,
2015). Doc. 19 at 20-21. There, the court found the ALJ erred
because she did not give the plaintiff the opportunity to
explain the lack of treatment; improperly skimmed over 180
pages of treatment notes in one paragraph of her decision,
including recommendations from two different doctors that the
plaintiff needed back surgery she could not afford; ignored
statements from a chiropractor, examining physician, and two
state-agency physicians regarding the objective medical
evidence supporting her subjective complaints of pain and
inability to sit or stand for more than a half an hour; and
improperly interpreted MRI scans and nerve conduction tests
herself to reach the conclusion that the plaintiff did not
suffer from the alleged impairments that would have precluded
her from sedentary work. Sneed, 2015 WL 1268257, at
case, Plaintiff does not cite evidence the ALJ ignored that
would have supported his testimony regarding the existence of
his impairments following his 2007 procedure or suggested
that he needed further procedures that he could not afford.
The evidence the ALJ cited-the notes of Drs. Califano and
Ricely regarding Plaintiff's reported condition and the
lack of any other treatment evidence from that period-was
inconsistent with Dr. Roggow's conclusion that Plaintiff
was limited to sedentary work due to shortness of breath and
chest pain as of March 31, 2008. Substantial evidence
therefore supports the ALJ's ...