United States District Court, M.D. Florida, Jacksonville Division
OPINION AND ORDER 
R. KLINDT UNITED STATES MAGISTRATE JUDGE
Scott Benjamin (“Plaintiff”) is appealing the
Commissioner of the Social Security Administration’s
(“SSA(’s)”) final decision denying his
claim for disability income benefits (“DIB”).
Plaintiff’s alleged inability to work is the result of
issues with his neck, mid back, and shoulders; an injury to
his mid and lower back; scoliosis in the neck; arthritis in
the neck and back; dyslexia; “numbness, pain and
tingling in legs”; depression; and post-traumatic
stress disorder. See Transcript of Administrative
Proceedings (Doc. No. 14; “Tr.” or
“administrative transcript”), filed June 18,
2018, at 85, 93, 209 (emphasis omitted). Plaintiff filed an
application for DIB on December 2, 2013. Tr. at
He alleged a disability onset date of December 13, 2006. Tr.
at 85. The application was denied initially, Tr. at 85-91,
92, 102, 103-05, and upon reconsideration, Tr. at 93-100,
101, 111-15, 116.
February 5, 2016, an Administrative Law Judge
(“ALJ”) held a hearing, during which she heard
testimony from Plaintiff, who was represented by counsel, and
a vocational expert (“VE”). Tr. at 41-84. At the
hearing, Plaintiff’s alleged disability onset date was
amended to December 15, 2009 at the request of Plaintiff. Tr.
at 47-48; see Tr. at 162. Plaintiff was fifty-one
years old at the time of the hearing. Tr. at 85 (indicating
date of birth). The ALJ issued a Decision on November 23,
2016, finding Plaintiff not disabled through the date last
insured. Tr. at 22-34.
Plaintiff requested review of the Decision by the Appeals
Council. Tr. at 166. The Appeals Council received additional
evidence in the form of a brief authored by Plaintiff’s
counsel. Tr. at 4, 5; see Tr. at 304-09 (brief). On
November 7, 2017, 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 January 3, 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 makes the following arguments: 1)
“[t]he Commissioner erroneously rejected the opinion of
long-time treating pain management physician, Dr. [Orlando]
Florete, who based his opinion in part on a [December 2009]
Functional Capacity Evaluation [(‘2009
FCE’) ] and years of treatment, and improperly
relied on the nonexamining opinion of Dr[. Peter] Schosheim
who filled out interrogatories after the hearing and who
provided no explanation for his conclusions”; and 2)
“[t]he Commissioner’s rationale for minimizing
the severity of [Plaintiff’s] right shoulder condition
constituted reversible error because the Commissioner
incorrectly believed that the condition only existed in 2010
so appeared to have overlooked the subsequent evidence of
continued symptoms and therefore incorrectly concluded that
the condition was only minimally limiting after 2010.”
Plaintiff’s Brief (Doc. No. 21; “Pl.’s
Br.”), filed September 19, 2018, at 1, 12-13, 21
(emphasis omitted). On December 13, 2018, Defendant filed a
Memorandum in Support of the Commissioner’s Decision
(Doc. No. 24; “Def.’s Mem.”) addressing
Plaintiff’s arguments. 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 affirmed.
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 24-34. At step one, the ALJ determined
that Plaintiff “did not engage in substantial gainful
activity during the period from his alleged onset date of
December 13, 2006 through his date last insured of December
31, 2011.” Tr. at 24 (emphasis and citation omitted).
At step two, the ALJ found that “[t]hrough the date
last insured, [Plaintiff] had the following severe
impairment: disorders of the spine.” Tr. at 24
(emphasis and citation omitted). At step three, the ALJ
ascertained that “[t]hrough the date last insured,
[Plaintiff] did not have an impairment or combination of
impairments that met or medically equaled the severity of one
of the listed impairments in 20 [C.F.R.] Part 404, Subpart P,
Appendix 1.” Tr. at 25 (emphasis and citation omitted).
determined that Plaintiff had the following residual
functional capacity (“RFC”) through the date last
[Plaintiff could] perform sedentary work as defined in 20
[C.F.R. §§] 404.1567(a) except [Plaintiff] was
limited to frequent reaching, overhead reaching, handling,
fingering, feeling and pushing/pulling with the right upper
extremity. [Plaintiff] was limited to occasional reaching and
overhead reaching, as well as frequent handling, fingering,
feeling and pushing/pulling with the left upper extremity. He
is right hand dominant. [Plaintiff] can sit for 1 hour at one
time, and stand/walk for 30 minutes each at one time without
interruption in an 8[-]hour work[day]. [Plaintiff] can sit
for 6 hours total, stand for 1-hour total and walk for 1-hour
total, all in an 8-hour workday. [Plaintiff] can operate foot
controls on an occasional basis bilaterally. [Plaintiff] can
never climb ladders, ropes or scaffolds. [Plaintiff] can
occasionally balance, stoop, kneel, crouch, crawl and climb
stairs and ramps. [Plaintiff] can tolerate no exposure to
unprotected heights, moving mechanical parts and vibrations.
[Plaintiff] can tolerate occasional exposure to extreme cold,
extreme heat, and the operation of a motor vehicle.
[Plaintiff] can tolerate frequent exposure to humidity and
wetness, poorly ventilated areas, as well as environmental
and pulmonary irritants, such as fumes, odors, dusts and
gases. [Plaintiff] is limited to work environments with no
more than a “loud” noise intensity level as
defined by the Dictionary of Occupational Titles. [Plaintiff]
is unable to walk a block at a reasonable pace on rough or
Tr. at 25 (emphasis omitted).
four, the ALJ found that “[t]hrough the date last
insured, [Plaintiff] was unable to perform any past relevant
work.” Tr. at 32 (emphasis and citation omitted). At
step five, after considering Plaintiff’s age (“47
years old . . . on the date last insured”), education
(“at limited education”), work experience, and
RFC, the ALJ relied on the testimony of the VE and found that
through the date last insured, “there were jobs that
existed in significant numbers in the national economy that
[Plaintiff] could have performed, ” such as “call
out operator” and “surveillance system monitor,
” Tr. at 33 (emphasis and citation omitted). The ALJ
concluded that Plaintiff “was not under a disability .
. . at any time from December 13, 2006, the alleged onset
date, through December 31, 2011, the date last
insured.” Tr. At 34 (emphasis and citation omitted).
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, Plaintiff takes issue with the ALJ’s assessment
of Dr. Florete’s opinions and the opinions expressed in
the 2009 FCE, as well as with the ALJ’s evaluation of
Plaintiff’s shoulder impairment. These issues are
addressed in turn.
contends that in discounting Dr. Florete’s opinions,
“[t]he ALJ offered multiple explanations, none of which
rose to the level of good cause.” Pl.’s Br. at
15. Plaintiff argues that “the ALJ failed to realize
that Dr. Florete himself adopted the findings and based his
opinion on the [2009 FCE] results.” Id.
Plaintiff asserts the ALJ’s statement that
Plaintiff’s reported activities conflicted with his
allegations is erroneous because when Plaintiff “did
try to engage in activity, he had problems and had to stop
the activity.” Id. at 16. As to the
ALJ’s observation that Plaintiff was “happy at
his job, ” Plaintiff argues that “the ALJ failed
to note that his low back pain had escalated after his
work efforts and he had radiating pain down both lower
extremities.” Id. at 17. Plaintiff contends
that “[t]he ALJ pointed to [Plaintiff’s] release
from his shoulder injury in 2010, but . . . the record
reveals that [Plaintiff’s] shoulder condition did not
improve.” Id. Plaintiff also argues that
“the ALJ failed to address findings in Dr.
Florete’s records indicating positive examination
findings.” Id. at 19. Plaintiff asserts the
ALJ erred in relying on Dr. Schosheim’s opinion, which
was “offered after the hearing and only upon a review
of medical records.” Id. at 18. According to
Plaintiff, “Dr. Schosheim failed to provide specific
references supporting his opinion as far as
Defendant argues the ALJ found that “the limitations
noted by Dr. Florete were not consistent with the objective
evidence of record.” Def.’s Mem. at 7 (citations
omitted). Defendant contends that “[t]he ALJ also noted
that Dr. Florete treated Plaintiff conservatively and
surgical treatment had not been advised.” Id.
(citations omitted). Defendant observes that “[t]he ALJ
accorded greater weight to the opinion from Dr. Schos[heim],
a non-examining physician, as she believed his opinion was
supported by the objective evidence.” Id.
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 F. App’x 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)