United States District Court, M.D. Florida, Orlando Division
CARLOS L. RIVERA, Plaintiff,
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.
REPORT AND RECOMMENDATION
C. IRICK UNITED STATES MAGISTRATE JUDGE.
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.
The ALJ's Decision
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.
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). R. 27. Specifically, the ALJ found as
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.
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.
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)
(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)).
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.
Failure to Fully and Fairly Develop the Record
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.
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 ...