United States District Court, M.D. Florida
REPORT AND RECOMMENDATION 
MIRANDO, UNITED STATES MAGISTRATE JUDGE
Lisa Heather Martin seeks judicial review of the denial of
her claims for disability and disability insurance benefits
(“DIB”) by the Commissioner of the Social
Security Administration (“Commissioner”). The
Court has reviewed the record, the Joint Memorandum (Doc.
23),  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 the administrative
law judge (“ALJ”) properly weighed the medical
opinions of Daniel Johnson, M.D., and Michael Mozzetti, M.D.
and declined to incorporate them into the ALJ's
assessment of Plaintiff's residual functional capacity
(“RFC”); (2) whether the ALJ failed to inquire
into and resolve a conflict between the vocational
expert's (“VE”) testimony and the Dictionary
of Occupational Titles (“DOT”); and (3) whether
the ALJ erred in failing to allow Plaintiff's attorney to
cross-examine the VE regarding the source of the job numbers
Procedural History and Summary of the ALJ's
16, 2014, Plaintiff filed an application for DIB, alleging
her disability began July 21, 2012, due to neck/back
problems, “stomach/gastro/colon issues, ” chronic
gastritis, stomach ulcers, gallbladder removal, auto-immune
disease, bipolar disorder, clinical depression, and anxiety.
Tr. 89-90, 101, 189. Plaintiff's DIB claim was denied
initially and upon reconsideration. Tr. 99, 116-119, 123. On
December 31, 2014, Plaintiff requested a hearing before an
ALJ. Tr. 128. ALJ Elizabeth P. Neuhoff held a hearing on May
31, 2016, during which Plaintiff and VE Melissa Neal
testified. Tr. 37-68. On August 1, 2016, the ALJ found
Plaintiff not disabled through the date of her decision. Tr.
one, the ALJ found Plaintiff “meets the insured status
requirements of the Social Security Act through December 31,
2017.” Tr. 16. The ALJ determined Plaintiff has not
engaged in substantial gainful activity since the alleged
onset date, July 21, 2012. Id. Next, the ALJ found
that Plaintiff has severe impairments of mild to moderate
degenerative disc disease in the cervical and lumbar spine,
bipolar disorder, generalized anxiety disorder, and organic
mental disorder. Id.
then concluded Plaintiff “does not have an impairment
or combination of impairments that meets or medically equals
the severity of one of the listed impairments in 20 CFR Part
404, Subpart P, Appendix 1.” Tr. 17. The ALJ then
determined that Plaintiff had the RFC to perform light
with certain limitations, including that she “can
occasionally stoop and crouch; and frequently perform all
other postural activities” and is “able to
understand, remember and perform simple tasks and
instructions.” Tr. 21. Next, the ALJ found Plaintiff
was unable to perform her past relevant work as a fast food
worker. Tr. 29. Considering Plaintiff's age, education,
work experience and RFC, the ALJ concluded that Plaintiff can
perform other jobs that exist in significant numbers in the
national economy. Tr. 30. As a result, the ALJ found that
Plaintiff is not disabled. Tr. 30-31.
the ALJ's decision, Plaintiff filed a request for review
by the Appeals Council, which was denied on July 17, 2017.
Tr. 1. Accordingly, the August 1, 2016 decision is the final
decision of the Commissioner. Plaintiff filed an appeal with
this Court on August 30, 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 citations omitted).
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 weighed the medical opinion evidence
and declined to incorporate it into the RFC
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);
Winschel, 631 F.3d at 1178-79. When 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). Although
opinions of treating physicians generally are given more
weight because they are the most likely to be able to offer
detailed opinions of the claimant's impairments as they
progressed over time, a medical source opinion may be
discounted when the opinion is not well-supported by
medically acceptable clinical and laboratory diagnostic
techniques or if it is inconsistent with the record as a
whole. 20 C.F.R. § 404.1527(c)(2); 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).
Accordingly, “[a]n ALJ must give a treating
physician's opinion substantial weight, unless good cause
is shown.” Castle v. Colvin, 557 Fed.Appx.
849, 854 (11th Cir. 2014) (citing Phillips v.
Barnhart, 357 F.3d 1232, 1240 (11th Cir. 2004));
Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir.
1997); Sabo v. Chater, 955 F.Supp. 1456, 1462 (M.D.
Fla. 1996). “Good 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.'” Winschel, 631 F.3d at 1179
(quoting Phillips, 357 F.3d at 1241).
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); see
SSR 96-6p, 1996 WL 374180 (July 2, 1996). The RFC is
the most that a claimant can do despite her limitations.
See 20 C.F.R. § 404.1545(a). At the
hearing level, the ALJ has the responsibility of assessing a
claimant's RFC. See 20 C.F.R. §
404.1546(c). The ALJ is required to assess a claimant's
RFC based on all of the relevant evidence in the record,
including any medical history, daily activities, lay evidence
and medical source statements. 20 C.F.R. § 404.1545(a).
The claimant's age, education, work experience, and
whether she can return to her past relevant work are
considered in determining her RFC, Lewis, 125 F.3d
at 1440 (citing 20 C.F.R. § 404.1520(f)), and the RFC
assessment is based upon all relevant evidence of a
claimant's ability to do work despite her impairments.
Phillips, 357 F.3d at 1238; Lewis, 125 F.3d
at 1440 (citing 20 C.F.R. § 404.1545(a)).
argues that the ALJ erred by misinterpreting Dr.
Johnson's range of motion chart, which showed that
Plaintiff's cervical and lumbar spine had reduced, rather
than normal, ranges. Doc. 23 at 19. She contends
this limitation prevents her from stooping, which should have
been incorporated into her RFC. Id. at 20. Plaintiff
also argues the ALJ improperly rejected Dr. Johnson's
opinion on the basis that it repeated Plaintiff's own
reports because his opinion contained his own observations,
including the difficulty she had getting on and off the
examination table. Id.
Commissioner responds Dr. Johnson, who examined Plaintiff one
time, observed that she was alert, pleasant and in no
distress, had mild difficulties with the examination table,
tandem walking, squatting and hopping, but walked unassisted
and had full use of her hands, as well as full motor and grip
strength, intact sensation and symmetrical reflexes. Id.
at 25. The Commissioner contends, although Plaintiff has
less than full range of motion in the cervical and
dorsolumbar regions, the ranges of motion Dr. Johnson
observed appeared to be within the normal range. Id.
The Commissioner argues Dr. Johnson limited Plaintiff to
walking and standing for 10 minutes each, sitting for 30
minutes, occasionally lifting 20 pounds, and never performing
repeated bending stooping or lifting, yet his examination
findings were unremarkable. Id. at 26. The
Commissioner points out, as the ALJ noted, Dr. Johnson
appears to repeat Plaintiff's subjective reports as his
findings even though they contradict the benign nature of his
examination findings, and such subjective reports do not
constitute an acceptable basis for a medical opinion.
Id. (citing 20 C.F.R. § 404.1527).
initial matter, Dr. Johnson's opinion as to
Plaintiff's ability to sit, stand, walk, lift, bend and
stoop is 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. Beegle, 482
Fed.Appx. at 486. Additionally, 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); McSwain v. Bowen, 814 F.2d
617, 619 (11th Cir. 1987). Here, the ALJ gave Dr.
Johnson's opinion no weight because he appears to
completely repeat Plaintiff's subjective reports as his
opinion, and those reports “contradict his own
basically benign physical findings.” Tr. 25. The Court
recommends substantial evidence supports this conclusion.
See Phillips, 357 F.3d at 1240-41 (holding
an ALJ may properly discount the opinion 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).
five pages of records from one-time examining physician Dr.
Johnson contain almost an entire page of information
Plaintiff provided, including the limitations that she can
stand and walk for 10 minutes each, occasionally lift 20
pounds, and cannot do repeated bending, stooping or lifting.
Tr. 453-57. Dr. Johnson's listed conclusions mirror this
information. Tr. 457. Other than observed ranges of motion,
which the ALJ noted were limited as to the cervical and
dorsolumbar regions, and the mild difficulties getting on and
off the examination table and tandem walking, squatting and
hopping, Dr. Johnson did not make any observations or
independent findings that would support the stated functional
limitations. Tr. 25, 453-457.
Plaintiff argues the ALJ misread Dr. Johnson's notes as
to her ranges of motion, the ALJ recognized the ranges were
less than full. Doc. 23 at 19-20, Tr. 25. It does
appear Plaintiff is correct that the ALJ may have
misinterpreted Dr. Johnson's range of motion studies
because the meaning of “normal” is unclear. Tr.
455-56. These ranges do not seem like typical ranges in the
sense that anything falling within them would qualify as
normal. Instead, the ranges seem to be the full ranges of
motion for each joint. Id. Nevertheless, Plaintiff
does not suggest the effect this misinterpretation would have
on the ALJ's determination of her ability to bend and
stoop. The ALJ recognized the deficiency in Plaintiff's
ranges of motion in the cervical and dorsolumbar spine and
accounted for it in RFC finding by limiting Plaintiff to
occasionally stooping and crouching. Tr. 21, 25, 455. The ALJ
declined to reduce Plaintiff's RFC any further because
the objective examinations and/or diagnostic testing did not
support it, and the evidence showed her activities were not
as limited as one would expect given her claimed symptoms and
limitations. Tr. 23, 28-29. Thus, the Court recommends
substantial evidence supports the ALJ's rejection of Dr.
Michael Mozzetti treated Plaintiff for neck and back pain
from August 2014 until April 2016. Tr. 458-508. His treatment
notes from each visit during that period-from her first visit
to her last-contain the following work restrictions:
“20 lb occasional lift limit, wear a high quality back
brace and if available, apply ice 4 times a day; avoid
bending, stopping or craning your back.” Tr. 460, 465,
470, 475, 481, 484, 487, 490, 494, 498, 502.
argues the ALJ erred in rejecting Dr. Mozzetti's opinion
that she had these work restrictions as unsupported by his
notes or the record as a whole. Doc. 23 at 20. She
argues these work restrictions were supported by: (1)
treatment notes indicating Plaintiff has lumbar tenderness;
(2) Dr. Johnson's findings indicating range of motion
limitations; and (3) the MRI showing multilevel formation
narrowings and nerve root contact. Id. at 20-21.
Plaintiff further argues Dr. Mozzetti's indication that
Plaintiff needs to apply ice 4 times a day and avoid heat on
her back is more than opinion-it is a modality of treatment
the ALJ was not qualified to reject as a non-physician.
Id. at 21. Plaintiff points to her testimony as
consistent with this treatment, and she points to the
VE's testimony that the need for breaks to apply ice
would preclude work. Id. at 22.
Commissioner responds that on examination, Dr. Mozzetti found
Plaintiff generally unremarkable other than lumbar
tenderness, and his records indicate Plaintiff often reported
doing well, having no problems, and experiencing a pain level
of 3-4 out of 10. Doc. 23 at 24. Given these notes
do not support Dr. Mozzetti's work restrictions, the
Commissioner argues, they provide substantial evidence
supporting the ALJ's rejection of the additional
restrictions. Id. The Commissioner discounts
Plaintiff's argument that the application of ice is a
modality of treatment, arguing that the ALJ was properly
determining Plaintiff's RFC and evaluating Dr.
Mozzetti's opinion to do so. Id. at 25.
recognized Dr. Mozzetti was Plaintiff's treating
physician for the majority of the relevant period but
determined his opinion was entitled to no weight because it
was inconsistent with the record as a whole and unsupported
by his examination findings or Plaintiff's symptoms upon
presentation. Tr. 24. Plaintiff saw Dr. Mozzetti for back and
neck pain, but the ALJ found his examinations do not support
the numerous limitations Plaintiff claims. Id.
Specifically, there was a negative response to straight leg
raise testing, full range of motion in Plaintiff's
extremities, and normal motor strength and sensation.
Id. The ALJ found Dr. Mozzetti's prescription of
pain medication inconsistent with Plaintiff's routine
reports of low pain levels, consistently a 3 or 4 out of 10,
and her reports that she was doing well and having no
problems. Id. The ALJ found Dr. Mozzetti's
observations and Plaintiff's reports to him inconsistent
with the work restrictions limiting lifting to 20 pounds
occasionally, requiring a back brace and, if available,
application of ice 4 times daily, and avoiding bending and
stooping or craning the back. Id.
Court recommends the ALJ adequately articulated specific
reasons for discounting Dr. Mozzetti's opinions, and the
record reflects good cause for doing so. See e.g.,
Crawford, 363 F.3d at 1155; Phillips v.
Barnhart, 357 F.3d at 1241. 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). Although Plaintiff
points to her MRI to support the limitations Dr. Mozzetti
found, Doc. 23 at 20, 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 recognized Plaintiff's MRI in
precluding her from medium work, but declined to find greater
limitations based on the record. Tr. 24, 28.
visits with Dr. Mozzetti from August 2014 to April 2016,
Plaintiff consistently reported she was feeling well, had no
problems, questions or complaints, and her pain with
medication was at most a 3 or 4 out of 10. Tr. 459-60,
463-65, 468-70, 473-75, 478-80, 482-83, 485-86, 488-89,
492-93, 496-97, 500-01. Her straight leg raise tests were
always negative. Tr. 460, 465, 470, 475, 480, 483, 486, 489,
493, 497, 501. Dr. Mozzetti generally found Plaintiff's
various systems unremarkable except for lumbar tenderness.
Tr. 460, 469, 474, 480486, 489, 493, 497, 501. Yet Dr.
Mozzetti consistently listed Plaintiff's work
restrictions as wearing a high back brace, applying ice 4
times a day, if available, limited to occasionally lifting 20
pounds, and avoiding bending, stooping, or craning
Plaintiff's back. Tr. 460, 465, 470, 475, 481, 484, 487,
490, 494, 498, 502. These restrictions were identical for
every time Plaintiff saw Dr. Mozzetti over an almost two-year
period. The ALJ's conclusion-that these restrictions
given throughout Dr. Mozzetti's treatment of Plaintiff
were inconsistent with her continuous presentation of minimal
pain and Dr. Mozzetti's largely normal findings on
examination-was a reasonable one. See
Lewis, 125 F.3d at 1440 (explaining good cause to
discount opinion exists “where the doctors'
opinions were conclusory or inconsistent with their own
medical records”). Additionally, Dr. Mozzetti's
opinion as to Plaintiff's work restrictions is not
entitled to any special significance because it relates to
Plaintiff's RFC, which is a matter reserved to the
Commissioner. Beegle, 482 Fed.Appx. at 486; 20
C.F.R. § 404.1527(d)(3). Thus, the Court recommends
substantial evidence and good cause support the ALJ's
decision to give no weight Dr. Mozzetti's opinion as to
her work restrictions, both because it was an RFC finding and
because it was rendered in the absence of either high pain
levels or abnormal examination findings to support it.
Whether the ALJ ...