United States District Court, M.D. Florida, Orlando Division
REPORT AND RECOMMENDATION
C. IRICK, UNITED STATES MAGISTRATE JUDGE
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.
THE ALJ'S DECISION
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.
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). 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.
STANDARD OF REVIEW
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)).
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.
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.
January 8, 2015, Dr. Cornejo, an orthopedic consultative
examiner, performed a physical evaluation of Claimant. R.
726. In the consultative examination report, Dr. Cornejo
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 ...