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Colon v. Commissioner of Social Security

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

August 30, 2019

LIONEL GARCIA COLON, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          MEMORANDUM OF DECISION

          DANIEL C. IRICK UNITED STATES MAGISTRATE JUDGE

         Lionel Garcia Colon (Claimant) appeals to the District Court from a final decision of the Commissioner of Social Security (the Commissioner) terminating Claimant’s benefits. Doc. 1; R. 1-10, 17-18. Claimant argues, in part, that the Administrative Law Judge (the ALJ) erred by misstating the record. Doc. 19 at 31-33. For the reasons set forth below, the Commissioner’s final decision is REVERSED and REMANDED.

         I. THE ALJ’S DECISION

         On or about July 16, 2013, the Commissioner found that Claimant had been disabled between July 6, 2011 and July 16, 2013. R. 17-18. Due to intervening circumstances not relevant here, Claimant’s disability came up for redetermination. Id. The issue on redetermination was whether Claimant was entitled to benefits from July 1, 2011 through July 16, 2013. R. 19.

         The ALJ issued her decision on August 31, 2016. R. 17-33. In her decision, the ALJ found that Claimant had the following severe impairments: degenerative disc disease and affective disorder. R. 22. The ALJ found that through July 16, 2013, 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] R. 19-20. Specifically, the ALJ found as follows:

After careful consideration of the entire record, I find that, through July 16, 2013, Mr. Garcia had the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except he required the ability to sit or stand, alternately, at will while at his workstation provided he was not off task more than 10% of his workday. He could frequently climb ramps and stairs and frequently balance. Mr. Garcia was capable of occasionally climbing ladders, ropes and scaffolds as well as occasionally stooping, kneeling, crouching and crawling. He could frequently reach in any direction with either upper extremity. He could not tolerate exposure to extreme temperatures of cold and heat, humidity, excessive vibration, and pulmonary irritants. Mr. Garcia could not tolerate exposure to workplace hazards such as dangerous moving machinery and unprotected heights. He could perform simple tasks.

R. 24. The ALJ then found that through July 16, 2013, Claimant was capable of performing jobs that existed in significant numbers in the national economy and, therefore, that Claimant was not disabled between July 1, 2011 and July 16, 2013. R. 31-33.

         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 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

         Claimant argues that the ALJ erred by misstating the record. Doc. 31-33. Specifically, Claimant argues that the ALJ repeatedly misstated the record when analyzing Claimant’s alleged need for a cane, and, thus, the ALJ’s determination that Claimant did not require a cane is not supported by substantial evidence. In particular, Claimant directed the Court to several instances in which the ALJ allegedly misstated the record: (1) the ALJ allegedly incorrectly stated that she was unable to find a prescription or note from a doctor suggesting that Claimant required a cane; (2) the ALJ allegedly incorrectly stated that the records of Claimant’s treating physician (Dr. Maisonet Correa) did not contain a prescription for, or suggest the use of, a cane; and (3) the ALJ allegedly incorrectly stated that Dr. Maisonet Correa opined in 2015 that Claimant did not need a cane to walk.

         In Diorio v. Heckler, 721 F.2d 726, 728 (11th Cir.1983), the Eleventh Circuit held that an ALJ's misstatement of fact is harmless error if it does not affect the ALJ's conclusion. However, Courts in this district have found that if the ALJ makes a misstatement of fact that is material or integral to the ALJ’s ultimate decision, then the misstatement is not harmless and remand may be warranted. See Bissinger v. Comm’r of Soc. Sec., 2014 WL 5093981, at *5-6 (M.D. Fla. Oct. 9, 2014) (finding that the ALJ’s misstatement of fact was not harmless) (citations omitted); see also White v. Comm’r of Soc. Sec., 2010 WL 3467413, at *15-16 (M.D. Fla. Aug. 3, 2010) (finding that the ALJ’s decision was not supported by substantial evidence because the ALJ misstatement of fact substantially affected the ALJ’s ultimate conclusion), report and recommendation adopted, 2010 WL 3448617 (M.D. Fla. Sept. 1, 2010); but see Washington v. Astrue, 2009 WL 2949034, at *14 (M.D. Fla. Sept 14, 2009) (finding that the ALJ made a material misstatement of fact, but that a single erroneous statement by the ALJ did not require remand) (citation omitted). In addition, Courts in this district have found that remand may be warranted where the ALJ misstates and mischaracterizes the record evidence on numerous points, even if only one such misstatement, standing alone, would not have necessitated remand. See Beckford v. Berryhill, 2017 WL 3835859, *7-9 (M.D. Fla. Aug. 16, 2017) (noting that the ALJ’s numerous errors called into question the accuracy of the ALJ’s decision); Smith v. Astrue, 2009 WL 3157639, *3-6 (M.D. Fla. Sept. 25, 2009) (finding that the ALJ’s misstatements, taken as a whole, indicated that the ALJ failed to properly consider all the evidence); Flentroy-Tennant v. Astrue, 2008 WL 876961, *6-8 (M.D. Fla. Mar. 27, 2008) (noting that the ALJ’s numerous misstatements revealed an inaccurate review of the record).

         “To find that a hand-held assistive device is medically required, there must be medical documentation establishing the need for a hand-held assistive device to aid in walking or standing, and describing the circumstances for which it is needed (i.e., whether all the time, periodically, or only in certain situations; distance and terrain; and any other relevant information).” SSR 96-9p. Here, the ALJ found that Claimant did not require the use of a cane between July 1, 2011 and July 16, 2013. R. 24-30. Specifically, the ALJ stated as follows with respect to Claimant’s alleged need to use a cane:

Mr. Garcia presented to hearing with a cane in his left hand. When asked, he stated that he has been using the cane, on advice of his doctor, since June 2011 for support and balance. (hearing testimony at 12:25:31AM). The date is consistent with the beneficiary’s alleged date of onset. However, I am unable to find a corresponding prescription or note from the beneficiary's doctor during the relevant period that suggested he needed a ...

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