United States District Court, M.D. Florida, Jacksonville Division
Patricia D. Barksdale United States Magistrate Judge
Lewis brings this action under 42 U.S.C. §§ 405(g)
and 1383(c) to review a final decision of the Commissioner of
Social Security denying his applications for benefits. Under
review is a decision by an Administrative Law Judge
(“ALJ”) dated April 12, 2017. Tr. 16–24.
Summaries of the law and the administrative record are in the
ALJ’s decision, Tr. 16–24, and the parties’
briefs, Docs.16, 17, and not fully repeated
argues (1) the ALJ failed to comply with an Appeals
Council’s order, (2) the ALJ erred in considering his
testimony, (3) the vocational expert’s
(“VE’s”) testimony is unsupported by
substantial evidence and inconsistent with the Dictionary of
Occupational Titles (“DOT”), (4) the ALJ erred in
finding his anxiety not severe and including no mental
limitation in the residual functional capacity
(“RFC”), and (5) the inability to afford a
surgical evaluation should not be held against him. Doc.
Appeals Council vacated a previous decision by the ALJ, Tr.
140–58, because the ALJ had failed to provide
post-hearing evidence to Lewis and notice of the right to
request a supplemental hearing and had listed no jobs at step
five. Tr. 159–61. The Appeals Council remanded the case
to the ALJ and directed him to ensure the record is complete
and Lewis has a chance to review it; further consider
Lewis’s maximum RFC and provide rationale for any
limitations; and, “if warranted by the expanded record,
obtain supplemental evidence from a” VE. Tr. 161. The
ALJ conducted another hearing and issued another decision
finding no disability. Tr. 16– 24, 72–89. In the
second decision, the ALJ incorporates by reference the
summary of medical evidence from the first decision.
See Tr. 21.
found Lewis has severe impairments of lumbar degenerative
disc disease, right shoulder tendinosis status post
acromioplasty, and obesity, with pain mostly from a 20-foot
fall at Suwanee Springs in 2009. Tr. 19, 61. The ALJ
discussed the new medical evidence, Tr. 20–21, and for
the RFC, found Lewis could perform light work with additional
[H]e requires a sit/stand option every 30 minutes; no
climbing of ladders/ropes/scaffolds but he can occasionally
climb ramps/stairs, balance, stoop, kneel, crouch and crawl;
no overhead reaching; no concentrated exposure to extreme
heat or vibrations; no work around moving mechanical parts or
work at unprotected heights.
Standard of Review
court reviews the Commissioner’s factual findings for
substantial evidence. 42 U.S.C. § 405(g).
“Under the substantial-evidence standard, a court looks
to an existing administrative record and asks whether it
contains sufficient evidence to support the agency’s
factual determinations.” Biestek v. Berryhill, 139
S.Ct. 1148, 1154 (2019) (internal quotation marks and
alteration omitted). “[W]hatever the meaning of
‘substantial’ in other contexts, the threshold
for such evidentiary sufficiency is not
high.”Id.“Substantial evidence …
is more than a mere scintilla. … It means-and means
only-such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.”Id.
(internal quotation marks omitted).
substantial evidence supports an ALJ’s decision, a
court must affirm, even if other evidence preponderates
against the factual findings. Martin v. Sullivan,
894 F.2d 1520, 1529 (11th Cir. 1990). The court may not
decide facts anew, reweigh evidence, make credibility
determinations, or substitute its judgment for the
Commissioner’s judgment. Moore v. Barnhart,
405 F.3d 1208, 1211 (11th Cir. 2005).
substantial-evidence standard applies only to factual
findings. Brown v. Sullivan, 921 F.2d 1233, 1236
(11th Cir. 1991). “[N]o similar presumption of validity
attaches to the … conclusions of
burden of showing that an error is harmful normally falls
upon the party attacking the agency’s
determination.” Shinseki v. Sanders, 556 U.S.
396, 409 (2009). If “remand would be an idle
and useless formality, ” a reviewing court need not
“convert judicial review of agency action into a
ping-pong game.” N.L.R.B. v. Wyman-Gordon Co.,
394 U.S. 759, 766 n.6 (1969). An erroneous factual statement
by an ALJ may be harmless. Diorio v. Heckler, 721
F.2d 726, 728 (11th Cir. 1983); Majkut v. Comm’r of
Soc. Sec., 394 F. App’x 660, 665 (11th Cir. 2010).
Law and Analysis
Compliance with Remand Order and RFC
heading titled, “The ALJ Failed to Comply with the
Appeal’s Council’s Order Regarding Post-Hearing
Medical Evidence, ” Lewis contends the evidence
submitted after the first hearing on back and shoulder
impairments warranted “further consideration, ”
and whether the ALJ properly considered those impairments is
unclear. Doc. 16 at 12–13. The Commissioner
As the ALJ explained, the Appeals Council remanded the
earlier ALJ decision because, subsequent to the hearing, the
ALJ received medical records that were not proffered to
Plaintiff and Plaintiff was not advised of his right to
request a supplemental hearing. The Appeals Council’s
order also noted that the earlier ALJ decision failed to
identify any jobs in the national economy that Plaintiff
Plaintiff has not alleged that the second ALJ decision
contains either of these two errors. … Rather,
Plaintiff appears to concede he did have an opportunity to
review the records and question and received a supplemental
hearing, but merely believes that the ALJ should have
concluded Plaintiff’s back and shoulder impairments
resulted in limitations in excess of the assessed RFC.
Nothing in the Appeals Council’s remand order directed
the ALJ to find specific back or shoulder limitations. Thus,
there is no error.
Doc. 17 at 5 (citations omitted).
Commissioner is correct. The ALJ did not fail to comply with
the Appeals Council’s order. The Court therefore
construes Lewis’s argument as challenging the RFC.
claimant’s RFC is the most he can still do despite his
limitations. 20 C.F.R. §§ 404.1545(a)(1),
416.945(a)(1). The Social Security Administration
(“SSA”) uses the RFC at step four to decide
whether the claimant can perform any past relevant work and,
if not, at step five with other factors to decide whether
there are other jobs in significant numbers in the national
economy he can perform. 20 C.F.R. §§
404.1545(a)(5), 416.945(a)(5). The “mere
existence” of an impairment does not reveal its effect
on a claimant’s ability to work or undermine RFC
findings. Moore v. Barnhart, 405 F.3d 1208, 1213 n.6
(11th Cir. 2005). The ALJ need not defer to any medical
opinion about the RFC. See 20 C.F.R. §§
404.1527(d)(3) (2012), 416.927(d)(3) (2012).
must consider all relevant record evidence. 20 C.F.R.
§§ 404.1520(a)(3), 416.920(a)(3). But “there
is no rigid requirement that the ALJ specifically refer to
every piece of evidence in his decision, so long as the
ALJ’s decision … is not a broad rejection which
is not enough to enable [the Court] to conclude that [the
ALJ] considered [the claimant’s] medical condition as a
whole.” Dyer v. Barnhart, 395 F.3d 1206, 1211
(11th Cir. 2005) (internal quotation marks omitted).
evidence, as detailed in the ALJ’s decision and the
Commissioner’s brief, supports the RFC. Moreover, as the
ALJ observed, “It is also not insignificant that none
of the claimant’s treating or examining physicians
rendered an opinion that is consistent with a finding that
the claimant has been unable to perform substantial gainful
activity for a period of 12 or more
months.” Tr. 22.
contends the ALJ adopted the summary of medical evidence from
the first opinion, which found “there is no evidence of
radiculopathy, ” even though Michael Ukaegbu, M.D.,
diagnosed radiculopathy in the back and shoulder in December
2016 and January 2017, respectively. Doc. 16 at 13–14.
He argues the ALJ “disregarded” findings from
2016 MRIs based on an outdated 2011 straight-leg test. Doc.
16 at 14.
incorporating the summary of medical evidence from the first
decision, the ALJ added in the new decision this statement
about a March 2016 lumbar MRI: “As noted in the
previous decision, [Lewis] has had normal straight leg
raising tests which are used to assess radicular pain. Since
these tests were routinely negative, there is no real
correlation with what is suggested on the lumbar spine MRI
study.” Tr. 22. While the ALJ may have not included
radiculopathy as a diagnosis, he did note possibly related
symptoms of numbness and tingling, Tr. 21, and other pain,
Tr. 22 (“He reported increased thoracic back pain and
itching/tingling in his hands over the last month in January
2017.”). What limitations Lewis thinks should have been
included are unclear. Given there appears to be only one
straight leg raising test in the record, see Tr.
508, the ALJ’s description of the ...