United States District Court, M.D. Florida, Orlando Division
MEMORANDUM OF DECISION
C. IRICK UNITED STATES MAGISTRATE JUDGE
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.
THE ALJ’S DECISION
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.
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). R. 19-20. Specifically, the ALJ found as
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.
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 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)).
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.
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).
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