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Benjamin v. Saul

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

September 26, 2019

BRUCE SCOTT BENJAMIN, Plaintiff,
v.
ANDREW M. SAUL, [1]Commissioner of Social Security, Defendant.

          OPINION AND ORDER [2]

          JAMES R. KLINDT UNITED STATES MAGISTRATE JUDGE

         I. Status

         Bruce 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 167.[3] 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.

         On 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.

         Thereafter, 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.

         On 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’)[4] ] 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.

         II. The ALJ’s Decision

         When determining whether an individual is disabled, [5] 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 n.5 (1987).

         Here, 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).

         The ALJ determined that Plaintiff had the following residual functional capacity (“RFC”) through the date last insured:

[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 uneven surfaces.

Tr. at 25 (emphasis omitted).

         At step 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).

         III. Standard of Review

          This 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).

         IV. Discussion

         As 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.

         A. Medical Opinions

         1. Parties’ Arguments

         Plaintiff 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 functioning.” Id.

         Responding, 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. (citations omitted).

         2. Applicable Law

         The Regulations[6] establish a “hierarchy” among medical opinions[7] 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) ...


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