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Vargas v. Commissioner of Social Security

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

June 17, 2019

FELIX NOEL VARGAS, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          REPORT AND RECOMMENDATION

          DANIEL C. IRICK, UNITED STATES MAGISTRATE JUDGE

         Felix Noel Vargas (Claimant) appeals to the District Court from a final decision of the Commissioner of Social Security (the Commissioner) denying his application for disability insurance benefits (DIB). Doc. 1. Claimant argued that the Administrative Law Judge (ALJ) erred by: 1) “failing to adequately consider and weigh all of the limitations and opinions outlined by” Juan C. Cornejo, D.O., and 2) “posing and relying on a hypothetical question that did not adequately reflect the limitations of the claimant.” Doc. 18 at 8-19. For the reasons set forth below, it is RECOMMENDED that the Commissioner's final decision be REVERSED and REMANDED.

         I. THE ALJ'S DECISION

         In October 2014, Claimant filed an application for DIB. R. 16, 168-76. Claimant alleged a disability onset date of February 13, 2013. R. 16, 18, 170.

         The ALJ issued his decision on April 3, 2017. R. 16-26. In the decision, the ALJ found that Claimant had the following severe impairments: status post right SLAP repair, rotator cuff repair, and chronic bilateral shoulder pain. R. 18. The ALJ found that Claimant had a residual functional capacity (RFC) to perform less than a full range of light work as defined by 20 C.F.R. § 404.1567(b).[1] Specifically, the ALJ found as follows:

After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b). He cannot do any overhead work. He cannot operate push and pull arm controls. He can do occasional reaching, handling, fingering and feeling. He can occasionally perform the postural activities. He needs the option to sit or stand every 30 minutes.

R. 19. The ALJ posed a hypothetical question to the vocational expert (VE) that was consistent with the foregoing RFC determination, and the VE testified that Claimant was capable of performing jobs in the national economy. R. 45-46. The ALJ thus found that Claimant was capable of performing jobs that existed in significant numbers in the national economy. R. 25-26. Therefore, the ALJ found that Claimant was not disabled between the alleged onset date and the date of the ALJ's decision. R. 26.

         II. STANDARD OF REVIEW

         “In Social Security appeals, [the court] must determine whether the Commissioner's decision is ‘supported by substantial evidence and based on proper legal standards.'” 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 if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is more than a scintilla - i.e., the evidence must do more than merely create a suspicion of the existence of a fact, and must include 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) (citing Walden v. Schweiker, 672 F.2d 835, 838 (11th Cir. 1982) and Richardson v. Perales, 402 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 preponderates 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). 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, 1240 n.8 (11th Cir. 2004) (quoting Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983)).

         III. ANALYSIS

         The weighing of treating, examining, and non-examining physicians' opinions is an integral part of steps four and five of the sequential evaluation process. At step four, the ALJ assesses the claimant's RFC and ability to perform past relevant work. Phillips, 357 F.3d at 1238. “The residual functional capacity is an assessment, based upon all of the relevant evidence, of a claimant's remaining ability to do work despite his impairments.” Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997). The ALJ is responsible for determining the claimant's RFC. 20 C.F.R. § 404.1546(c). In doing so, the ALJ must consider all relevant evidence, including, but not limited to, the medical opinions of treating, examining, and non-examining medical sources. 20 C.F.R. § 404.1545(a)(1), (3); see also Rosario v. Comm'r of Soc. Sec., 877 F.Supp.2d 1254, 1265 (M.D. Fla. 2012).

         At step five, once the claimant has proven that the claimant can no longer perform past relevant work, the burden shifts to the Commissioner “to show the existence of other jobs in the national economy which, given the claimant's impairments, the claimant can perform.” Jones v. Apfel, 190 F.3d 1224, 1228-30 (11th Cir. 1999) (quoting Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987)). An ALJ may rely on the testimony of a VE in determining whether the claimant can perform other jobs in the national economy. Id. at 1229. The ALJ is required to pose hypothetical questions that are accurate and that include all of the claimant's functional limitations. Pendley v. Heckler, 767 F.2d 1561, 1563 (11th Cir. 1985). However, the ALJ need not include “each and every symptom” of the claimant's impairments, Ingram v. Comm'r of Soc. Sec. Admin., 496 F.3d 1253, 1270 (11th Cir. 2007), or medical “findings . . . that the ALJ . . . properly rejected as unsupported” in the hypothetical question, Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1161 (11th Cir. 2004). Where the ALJ relies on the VE's testimony at step five but fails to include all the claimant's functional limitations in the hypothetical question, the final decision is not supported by substantial evidence. Pendley, 767 F.2d at 1562 (quoting Brenem v. Harris, 621 F.2d 688, 690 (5th Cir. 1980)).[2]

         On January 8, 2015, Dr. Cornejo, an orthopedic consultative examiner, performed a physical evaluation of Claimant. R. 726. In the consultative examination report, Dr. Cornejo concluded:

Although [Claimant] appears to have had treatment for his orthopedic problems, he continues to complain of pain to the above areas. The claimant would be able to turn and bend his neck and back. He will not be limited from prolonged walking, standing, and sitting with reasonable breaks. He would be able to sit for a reasonable amount of time with needed breaks. There were no balance limitations observed during the evaluation. He had almost full use of his right upper extremity but full use of his left upper extremity. He has full functionality of his right and left hands. He would be able to handle fine and small sized objects with his right but would be able to handle small and medium sized objects with his left. He has no significant limitations to fingering such as picking and pinching objects. There are ...

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