United States District Court, S.D. Florida
OPINION ORDER ADOPTING MAGISTRATE'S REPORT AND
N. Scola, Jr. United States District Judge.
matter was referred to United States Magistrate Judge Edwin
G. Torres for a ruling on all pre-trial, nondispositive
matters, and for a Report and Recommendation on any
dispositive matters. On January 15, 2019, Judge Torres issued
a Report and Recommendation (the “R&R, ” ECF
No. 22), recommending that the Court deny Plaintiff Odalys
Abreu's (“Abreu”) motion for summary judgment
(ECF No. 17) and that the Court grant Defendant Nancy A.
Beryhill's (the “Commissioner”) motion for
summary judgment (ECF No. 19). Abreu timely objected to the
R&R. (the “Objection, ” ECF No. 23.) Having
conducted a de novo review the entire record and the
applicable law, the Court overrules the
Objection (ECF No. 23), affirms and
adopts in full the R&R (ECF No.
22), denies Abreu's motion for
summary judgment (ECF No. 17) and
grants the Commissioner's motion for
summary judgment (ECF No. 19).
Objection, Abreu argued that (1) the ALJ failed to consider a
handicap placard issued to Abreu by Dr. Abrue, a treating
physician, (2) the ALJ failed to provide good cause for
rejecting the medical opinion of Dr. Ference, another
treating physician Abreu, (3) contrary to the ALJ's
determination, the medical-vocational guidelines (the
“Grids”) support a finding of disability, and (4)
the ALJ failed to reconcile alleged contradictions between
the residual functional capacity assessment (the
“RFC”) an the opinion of the vocational expert
(“VE”) who testified at the administrative
hearing below. (ECF No. 23.) The Court will address each
point in turn.
Abreu contends that the ALJ's decision was not supported
by substantial evidence due to the ALJ's failure to
reference or weigh the handicap placard, which she
characterizes as a medical opinion. While an ALJ is
“required to state with particularity the weight [given
to] the different medical opinions, ” Sharfarz v.
Bowen, 825 F.2d 278, 279 (11th Cir. 1987), “there
is no rigid requirement, ” Dryer v. Barnhart,
395 F.3d 1206, 1211 (11th Cir. 2005). Additionally, here, the
ALJ had good cause not to consider the handicap placard
completed by Dr. Abreu because it is “not accompanied
by objective medical evidence [and] is wholly
conclusory.” Edwards v. Sullivan, 937 F.2d
580, 583-84 (11th Cir. 1991); (R&R, ECF No. 22 at pp.
9-11.) Abreu's first objection is
Abreu claims that the ALJ failed to provide good cause for
rejecting Dr. Ference's medical opinion. However, the ALJ
expressly relied on Abreu's testimony in deciding to give
little weight to Dr. Ference's medical opinion. While
Abreu may ultimately disagree on whether there is an
inconsistency between her testimony and Dr. Ference's
medical opinion, “[t]he [Commissioner], and not the
court, is charged with the duty to weigh the evidence, to
resolve material conflicts in the testimony, and to determine
cases accordingly.” Wheeler v. Heckler, 784
F.2d 1073, 1075 (11th Cir. 1986) (citing Laffoon v.
Califano, 558 F.2d 253, 254 (5th Cir. 1997)); (R&R,
ECF No. 22 at pp. 11-13.) Abreu's second objection is
Abreu argues that had the ALJ properly considered the medical
opinions, the ALJ would have found Abreu to be limited to
sedentary or less than sedentary work; thus, the required
application of Section 201.00(h)(1) of the grids calls for a
finding of disability. However, because the Court finds that
the ALJ properly considered the medical opinions this
argument fails. Further, here, the ALJ used a VE and the
Eleventh Circuit “has never held that when the ALJ uses
[vocational expert] testimony, the ALJ must also
consider the grids.” Watson v. Astrue, 376
Fed.Appx. 953, 958 (11th Cir. 2010) (emphasis in original);
(R&R, ECF No. 22 at pp. 13-16.) Abreu's third
objection is overruled.
Abreu claims that the ALJ's decision to rely on the
VE's testimony is not supported by substantial evidence.
The RFC states that the Plaintiff “is able to
frequently avoid distractions.” (ECF No. 14 at p. 24.)
Social Security Ruling 83-10, which provides guidance in
assessing a claimant's RFC from a physical
strength and exertional standpoint, defines
“Frequent” to “mean occurring from
one-third to two-thirds of the time.” SSR 83-10, 1983
WL 31251, at *6. From this, Abreu deduces that the ALJ
necessarily determined her unable to “avoid
distractions” one-third to two-thirds of the time. And
because the VE testified that an individual off-task
ten-percent of the time is “not going to be able to
maintain employment, ” (TR. 104), Abreu argues that the
RCF statement negates the finding that she is able to perform
work existing in significant numbers in the national economy.
But Abreu cites no authority to support the application of
the definition of “frequent” under SSR 83-10 to
psychological symptoms. Moreover, the ALJ made clear that
Abreu can maintain concentration for at least two-hours at a
time and might be off-task for only five-minutes per hour.
This is consistent with the VE's testimony that
five-minutes off-task is to be expected when working. The
Court agrees with Judge Torres that there are no
inconsistencies between the ALJ and VE. Abreu's fourth
objection is overruled.
the Court overrules the Objection
(ECF No. 23). The Report and Recommendation
(ECF No. 22) is affirmed and adopted
in full. Abreu's motion for summary judgment
(ECF No. 17) is denied. The
Commissioner's motion for summary judgment (ECF
No. 19) is granted. The
Clerk is directed to close
this case. All pending motions are denied as moot.