United States District Court, M.D. Florida, Orlando Division
REPORT AND RECOMMENDATION 
R. KLINDT, UNITED STATES DISTRICT JUDGE
Lynice Pollock (“Plaintiff”) is appealing the
Commissioner of the Social Security Administration's
(“SSA('s)”) final decision denying her claim
for disability income benefits (“DIB”).
Plaintiff's alleged inability to work is the result of
fibromyalgia, high blood pressure, heart issues, and anemia.
See Transcript of Administrative Proceedings (Doc.
No. 16; “Tr.” or “administrative
transcript”), filed November 7, 2018, at 56, 67, 212.
Plaintiff filed an application for DIB on April 10, 2015,
alleging an onset disability date of February 9, 2014. Tr. at
182. The application was denied initially, Tr. at 56-64, 65,
66, 90-92, and upon reconsideration, Tr. at 67-77, 78, 79,
September 19, 2017, an Administrative Law Judge
(“ALJ”) held a hearing, during which he heard
testimony from Plaintiff, who was represented by counsel, and
a vocational expert (“VE”). Tr. at 32-55.
Plaintiff was fifty-three years old at the time of the
hearing. Tr. at 36 (indicating date of birth).The ALJ issued
a Decision on November 24, 2017, finding Plaintiff not
disabled through the date of the Decision. Tr. at 13-26.
15, 2018, the Appeals Council denied Plaintiff's request
for review, Tr. at 1-3, thereby making the ALJ's Decision
the final decision of the Commissioner. On August 8, 2018,
Plaintiff commenced this action under 42 U.S.C. § 405(g)
by timely filing a Complaint (Doc. No. 1), seeking judicial
review of the Commissioner's final decision.
appeal, Plaintiff raises two issues: 1) “[w]hether the
ALJ erred in determining that [Plaintiff] has the residual
functional capacity [(‘RFC')] to perform light work
after failing to adequately weigh and consider the medical
opinions”; and 2) “[w]hether the ALJ properly
relied on the testimony of the [VE] after posing and relying
on a hypothetical question that did not adequately reflect
the limitations of [Plaintiff].” Plaintiff's Brief
Addressing the Merits of Appeal (Doc. No. 20;
“Pl.'s Br.”), filed February 6, 2019, at 2-3;
see Pl.'s Br. at 8-12 (first issue), 12-14
(second issue). Although phrased broadly, Plaintiff's
first issue focuses solely on the ALJ's evaluation of the
opinion of Plaintiff's treating podiatrist, Dr. Joanne
Balkaran, DPM. See id. at 10-12. On March 29, 2019,
Defendant filed a Memorandum in Support of the
Commissioner's Decision (Doc. No. 21; “Def.'s
Mem.”) addressing the issues raised by Plaintiff. After
a thorough review of the entire record and consideration of
the parties' respective memoranda, the undersigned finds
that the Commissioner's final decision is due to be
The ALJ's Decision
determining whether an individual is disabled,  an ALJ must
follow the five-step sequential inquiry set forth in the Code
of Federal Regulations (“Regulations”),
determining as appropriate whether the claimant (1) is
currently employed or engaging in substantial gainful
activity; (2) has a severe impairment; (3) has an impairment
or combination of impairments that meets or medically equals
one listed in the Regulations; (4) can perform past relevant
work; and (5) retains the ability to perform any work in the
national economy. 20 C.F.R. §§ 404.1520, 416.920;
see also Phillips v. Barnhart, 357 F.3d 1232, 1237
(11th Cir. 2004). The claimant bears the burden of persuasion
through step four, and at step five, the burden shifts to the
Commissioner. Bowen v. Yuckert, 482 U.S. 137, 146
the ALJ followed the five-step sequential inquiry.
See Tr. at 15-25. At step one, the ALJ determined
that Plaintiff “has not engaged in substantial gainful
activity since February 9, 2014, the alleged onset
date.” Tr. at 15 (emphasis and citation omitted). At
step two, the ALJ found that Plaintiff “has the
following severe impairments: degenerative joint disease of
the lumbar spine, fibromyalgia/inflammatory polyarthropathy,
bilateral Achilles tendonitis and obesity.” Tr. at 15
(emphasis and citation omitted). At step three, the ALJ
ascertained that Plaintiff “does not have an impairment
or combination of impairments that meets or medically equals
the severity of one of the listed impairments in 20 [C.F.R.]
Part 404, Subpart P, Appendix 1.” Tr. at 19 (emphasis
and citation omitted).
determined that Plaintiff has the following RFC:
[Plaintiff can] perform light work as defined in 20 [C.F.R.
§] 404.1567(b). Specifically, [Plaintiff] can sit, stand
and walk up to six hours each in an eight-hour workday. She
can lift, carry, push and pull 20 pounds occasionally and 10
pounds frequently. She can frequently handle and operate hand
controls with the left and right hand. She can occasionally
climb ramps, stairs, ladders, ropes and scaffolds. She can
frequently balance, but only occasionally stoop, kneel,
crouch and crawl. [Plaintiff] can have occasional exposure to
extreme cold, vibration and hazards, such as unprotected
heights and moving machinery.
Tr. at 19 (emphasis omitted). At step four, the ALJ relied on
the testimony of the VE and found that Plaintiff is
“capable of performing past relevant work as a
laboratory technician.” Tr. at 24 (emphasis omitted).
The ALJ then proceeded to make alternative findings regarding
the fifth and final step of the sequential inquiry. Tr. at
24-25. At step five, after considering Plaintiff's age
(“49 years old . . . on the alleged disability onset
date”), education (“limited education”),
work experience, and RFC, the ALJ again relied on the
testimony of the VE and found that “there are other
jobs that exist in significant numbers in the national
economy that [Plaintiff] also can perform, ” Tr. at 24,
such as “fast food worker, ” “housekeeper,
” and “storage facility rental clerk, ” Tr.
at 25. The ALJ concluded that Plaintiff “has not been
under a disability . . . from February 9, 2014, through the
date of th[e D]ecision. Tr. at 26 (emphasis and citation
Standard of Review
Court reviews the Commissioner's final decision as to
disability pursuant to 42 U.S.C. § 405(g). Although no
deference is given to the ALJ's conclusions of law,
findings of fact “are conclusive if . . . supported by
‘substantial evidence.'” Doughty v.
Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001) (citing
Falge v. Apfel, 150 F.3d 1320, 1322 (11th Cir.
1998)). “Substantial evidence is something ‘more
than a mere scintilla, but less than a
preponderance.'” Dyer v. Barnhart, 395
F.3d 1206, 1210 (11th Cir. 2005) (quoting Hale v.
Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987)). The
substantial evidence standard is met when there is
“such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.”
Falge, 150 F.3d at 1322 (quoting Richardson v.
Perales, 402 U.S. 389, 401 (1971)). It is not for this
Court to reweigh the evidence; rather, the entire record is
reviewed to determine whether “the decision reached is
reasonable and supported by substantial evidence.”
Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th
Cir. 1991) (citation omitted). The decision reached by the
Commissioner must be affirmed if it is supported by
substantial evidence-even if the evidence preponderates
against the Commissioner's findings. Crawford v.
Comm'r of Soc. Sec., 363 F.3d 1155, 1158-59 (11th
Cir. 2004) (per curiam).
noted above, Plaintiff takes issue with the ALJ's
evaluation of Dr. Balkaran's opinions and with the
ALJ's reliance on the testimony of the VE. The
undersigned addresses these issues in turn.
ALJ's Evaluation of Dr. Balkaran's Opinions
contends the ALJ “did not appropriately weigh the
opinion of Dr. Balkar[a]n” because “at no time in
the [D]ecision [did] the ALJ state the weight assigned to the
opinion [of] this doctor.” Pl's Br. at 10
(citations omitted). According to Plaintiff, “[t]he
records from Dr. Balkar[a]n reveal [Plaintiff] had
significant problems with walking, and the doctor
specifically indicate[d] that [Plaintiff] should elevate her
foot and limit activities.” Id. at 11
(citation omitted). Plaintiff asserts that “this
opinion is extremely important to the outcome of the
case” because the VE appeared to testify that
“the need for elevation of a lower extremity would
interfere with employment.” Id. Plaintiff
contends that because the ALJ failed to assign a weight to
Dr. Balkar[a]n's opinion, “it is impossible for any
reviewing court to determine whether the [D]ecision of the
ALJ is supported by substantial evidence.” Id.
Defendant argues that “[t]he ALJ did not err in failing
to assign weight to Dr. Balkaran's . . . treatment
note/treatment plan because it was not a medical
opinion.” Def.'s Mem. at 7 (citation omitted).
According to Defendant, “[t]he treatment note lacked
any indication of Dr. Balkaran's judgment about
Plaintiff's prognosis and statement of what Plaintiff can
still do despite her impairments.” Id.
(citation omitted). “Nevertheless, ” argues
Defendant, “even if the ALJ should have addressed the
treatment plan to elevate [Plaintiff's] leg and limit
activity, any error was harmless because the ALJ does not
leave this Court to ponder why he made the decision he
did.” Id. at 8 (citation omitted). Defendant
asserts that “the ALJ considered Plaintiff's left
foot and ankle impairment.” Id. According to
Defendant, “[r]emand for the ALJ to further consider
Plaintiff's left heel spur and ankle impairment would not
change the administrative outcome and would be a wasteful
activity.” Id. at 9 (citation omitted).
Regulations establish a “hierarchy” among
medical opinions that provides a framework for determining
the weight afforded each medical opinion: “[g]enerally,
the opinions of examining physicians are given more weight
than those of non-examining physicians[;] treating
physicians[' opinions] are given more weight than
[non-treating physicians;] and the opinions of specialists
are given more weight on issues within the area of expertise
than those of non-specialists.” McNamee v. Soc.
Sec. Admin., 164 Fed.Appx. 919, 923 (11th Cir. 2006)
(citing 20 C.F.R. § 404.1527(d)(1), (2), (5) (2006)).
The following factors are relevant in determining the weight
to be given to a physician's opinion: (1) the
“[l]ength of the treatment relationship and the
frequency of examination”; (2) the “[n]ature and
extent of [any] treatment relationship”; (3)