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Rivera v. Berryhill

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

May 28, 2019

CARLOS L. RIVERA, Plaintiff,
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.

          REPORT AND RECOMMENDATION

          DANIEL C. IRICK UNITED STATES MAGISTRATE JUDGE.

         Carlos L. Rivera (“Claimant”) appeals the Commissioner of Social Security's final decision denying his applications for a period of disability and Disability Insurance Benefits (“DIB”). Doc. 15 at 1. Claimant argues that the Administrative Law Judge (“ALJ”) erred by: 1) failing to fully and fairly develop the record in this case; and 2) failing to apply the correct legal standard to the medical opinions of Dr. Nazario and Dr. Clements. Doc. 15 at 22. Claimant requests that the matter be remanded for further administrative proceedings. Doc. 15 at 22. For the reasons set forth below, it is Recommended that the Commissioner's final decision be Affirmed.

         I. The ALJ's Decision

         Claimant applied for DIB on September 16, 2014. Doc. 15 at 1. He alleged a disability onset date of May 1, 2010. Doc. 15 at 1. A hearing was held on July 14, 2017. Doc. 15 at 1. At the hearing, the ALJ advised Claimant of his right to representation. R. 47. Claimant waived his right and testified with the assistance of his brother, Luis A. Rivera. R. 48.

         The ALJ issued his final decision denying the claimant's application for disability and DIB on September 19, 2017. R. 17. In his decision, the ALJ found that Claimant had the following severe impairments: mental impairments variously diagnosed including depression, anxiety, and borderline intellectual functioning, as well as arthropathies. R. 26. The ALJ found that Claimant had the residual functioning capacity to perform light work as defined in 20 C.F.R. § 404.1567(b).[1] R. 27. Specifically, the ALJ found as follows:

After careful consideration of the entire record, I find that, through the date last insured, the claimant had the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except he can occasionally climb ramps or stairs, never climb ladders, ropes, or scaffolds, and can occasionally crouch. The claimant should avoid concentrated exposure to extreme cold, humidity and hazards such as operational control of moving machinery and unprotected heights. The claimant can understand, retain and carry out simple instructions, perform routine tasks on a sustained basis with normal supervision and cooperate with co-workers in completing simple tasks and transactions. The claimant can adjust to modest mental demands of the workplace.

         R. 27. Based on these findings, and the vocational expert's testimony at the hearing, the ALJ determined that Claimant was capable of performing past relevant work as a Cleaner, Housekeeping, through the date last insured. R. 32. Claimant's past relevant work is considered light unskilled work that Claimant could return to, both as generally performed in the national economy and as actually performed by him. R. 32. Therefore, the ALJ found that Claimant was not disabled. R. 17.

         II. 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) (citations omitted). The Commissioner's findings of fact are conclusive when supported by substantial evidence. 42 U.S.C. § 405(g). “Substantial evidence is more than a scintilla.” Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995). The “evidence must do more than create a suspicion of the existence of a fact to be established.” Id. (citing Walden v. Schweiker, 672 F.2d 835, 838 (11th Cir. 1982). It must include “such relevant evidence as a reasonable person would accept as adequate to support the conclusion.” Id. (citing Richardson v. Perales, 42 U.S. 389, 401 (1971)). Where the Commissioner's decision is supported by substantial evidence, the 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 evidence preponderated against the Commissioner's decision. Edwards v. Sullivan, 937 F.2d 58, 584 n.3 (11th Cir. 1991); Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991). The Court must view the evidence as a whole, taking into account evidence favorable as well as unfavorable to the decision. Foote, 67 F.3d at 1560. The district court “'may not decide the facts anew, reweigh the evidence, or substitute [its] judgment for that of the [Commissioner].'” Phillips v. Barnhart, 357 F.3d 1232, 1234 n.8 (11th Cir. 2004) (quoting Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983)).

         III. Analysis

         For the reasons that follow, the undersigned finds that Claimant has not established that he was prejudiced by the ALJ's failure to require further testing, nor has he established that the ALJ failed to apply the correct legal standard to the opinion of Dr. Nazario and Dr. Clements. Accordingly, it is Recommended that the Court reject Claimant's assignment of error.

         A. Failure to Fully and Fairly Develop the Record

         Claimant argues that the ALJ failed to fully and fairly develop the record. Doc. 15 at 22. Claimant explained that, on December 1, 2014, he presented to Dr. Nazario and Dr. Clements on one occasion for a limited psychological evaluation with IQ testing, following which the doctors opined that Claimant's ability to handle funds was inadequate due to limited intellect and stated that “[a]dditional assessment is needed to address adaptive behaviors to determine whether or not claimant meets criteria for Mental Retardation.” Doc. 15 at 5-9; R. 355-58. Claimant asserts that he was prejudiced by the ALJ's failure to order the additional examination that was recommended by Dr. Nazario and Dr. Clements because, according to Claimant, further testing was necessary to determine whether Claimant met the requirements of Listing 12.05 for intellectual disabilities. Doc. 15 at 11; see 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 12.05. The Commissioner counters that there was sufficient medical evidence for the ALJ to make an informed decision without requiring additional evidence. Doc. 15 at 15.

         As an initial matter, Claimant's challenge concerning the requirements of Listing 12.05 seems to refer to the ALJ's failure to develop the record with regards to the medical opinions of Dr. Nazario and Dr. Clements. Doc. 15 at 11. However, the undersigned notes that the ALJ did not discuss the medical opinions of Dr. Nazario and Dr. Clements in the section of the decision concerning Listing 12.05, but instead, the ALJ focused on the subjective complaints of the Claimant for most of the ALJ's analysis in that section. R. 26. The ALJ did not explicitly consider the medical opinions of Dr. Nazario and Dr. Clements until the analysis regarding Claimant's RFC. R. 30. Claimant seems to conflate the two sections in his argument to the Court. Further, there is simply no discussion by Claimant about how the ALJ's conclusion that Claimant did not meet the requirements for any listing would have changed had the ALJ considered the medical opinions of Dr. Nazario and Dr. Clements; therefore, the challenge is waived. See Jacobus v. Comm'r of Soc. Sec., 664 Fed.Appx. 774, 777 (11th Cir. 2016) (stating that claimant's perfunctory argument was arguably abandoned); see also Gaskey v. Colvin, No. 4:12-CV-3833-AKK, 2014 WL 4809410, at *7 (N.D. Ala. Sept. 26, 2014) (refusing to consider claimant's argument when claimant failed to explain how the evidence undermined the ALJ's decision) (citing Singh v. U.S. Atty. Gen., 561 F.3d 1275, 1278 (11th Cir. 2009) (“[A]n appellant's simply stating that an issue exists, without further argument or discussion, constitutes abandonment of that issue and precludes our ...


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