Valentine v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

THOMAS JAMES VALENTINE,

Plaintiff,

v. Case No: 6:18-cv-1354-Orl-LRH

COMMISSIONER OF SOCIAL

SECURITY,

Defendant.

MEMORANDUM OF DECISION

Thomas Valentine (Claimant) appeals the Commissioner of Social Security’s

(Commissioner) final decision denying his applications for disability benefits. (Doc. 1). The

Claimant raises two assignments of error challenging the Commissioner’s final decision and, based

on those assignments of error, requests that the matter be reversed and remanded for further

proceedings. (Doc. 17 at 9-11, 19-20, 22). The Commissioner argues that the Administrative Law

Judge (ALJ) committed no legal error and that his decision is supported by substantial evidence and

should be affirmed. (Id. at 11-23). Upon review of the record, the Court finds that the

Commissioner’s final decision is due to be AFFIRMED.

I. Procedural History

This case stems from the Claimant’s applications for disability insurance benefits and

supplemental security income. (R. 199, 208-14). The Claimant originally alleged a disability

onset date of May 21, 2016, which he later amended to June 1, 2016. (R. 199, 208). The

Claimant’s applications were denied on initial review and on reconsideration. The matter then

proceeded to a hearing before an ALJ. On March 29, 2018, the ALJ entered a decision denying the

Claimant’s applications for disability benefits. (R. 12-24). The Claimant requested review of the

ALJ’s decision, but the Appeals Council denied his request for review. (R. 1-3). This appeal

followed.

II. The ALJ’s Decision

The ALJ found that the Claimant suffered from the following severe impairments:

degenerative disc disease of the cervical spine; obesity; diabetes mellitus; and hypertension. (R.

15). The ALJ also found that the Claimant suffered from the following non-severe impairments:

dyslipidemia; carotid artery stenosis; status post right thigh wound with skin graft surgery; cataract;

anemia; adjustment disorder; and a history of substance abuse. (R. 15-18). The ALJ determined

that none of the foregoing impairments, individually or in combination, met or medically equaled

any listed impairment. (R. 18).

The ALJ proceeded to find that the Claimant has the residual functional capacity (RFC) to

perform medium work as defined in 20 C.F.R. § 404.1567(c) and § 416.967(c)1 with the following

specific limitations:

[T]he claimant can lift, carry, push and pull fifty (50) pounds occasionally and

twenty-five (25) pounds frequently. The claimant can sit, stand and walk for up to

six (6) hours each out of an 8-hour workday. He can frequently balance, stoop and

crouch but, only occasionally kneel and crawl. He can . . . only occasionally climb

ramps, stairs, ladders, ropes or scaffolds. The claimant can have occasional

exposure to extreme cold, extreme heat, vibration, and hazards, such as unprotected

heights and moving machinery.

(R. 18). Based on this RFC, the ALJ found that the Claimant could perform his past relevant work

1 Medium work is defined as “lifting no more than 50 pounds at a time with frequent lifting

or carrying of objects weighing up to 25 pounds. If someone can do medium work, we determine

that he or she can also do sedentary and light work.” 20 C.F.R. §§ 404.1567(c), 416.967(c).

as a sales route driver. (R. 22-23). In addition, the ALJ found that the Claimant could perform

other work in the national economy, including conveyor feeder, floor waxer, and box bender. (R.

23-24). In light of these findings, the ALJ concluded that the Claimant was not disabled between

his alleged onset date, June 1, 2016, through the date of the ALJ’s decision, March 29, 2018. (R.

24).

III. Standard of Review

The scope of the Court’s review is limited to determining whether the Commissioner applied

the correct legal standards and whether the Commissioner’s findings of fact are supported by

substantial evidence. Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011). The

Commissioner’s findings of fact are conclusive if they are supported by substantial evidence, 42

U.S.C. § 405(g), which is defined as “more than a scintilla and is such relevant evidence as a

reasonable person would accept as adequate to support a conclusion.” Lewis v. Callahan, 125 F.3d

1436, 1440 (11th Cir. 1997). The Court must view the evidence as a whole, taking into account

evidence favorable as well as unfavorable to the Commissioner’s decision, when determining

whether the decision is supported by substantial evidence. Foote v. Chater, 67 F.3d 1553, 1560

(11th Cir. 1995). The Court may not reweigh evidence or substitute its judgment for that of the

Commissioner, and, even if the evidence preponderates against the Commissioner’s decision, the

reviewing court must affirm it if the decision is supported by substantial evidence. Bloodsworth v.

Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983).

IV. Analysis

The Claimant raises two assignments of error: 1) the ALJ failed to satisfy his duty to fully

and fairly develop the record; and 2) the ALJ’s decision to assign Dr. Bettye Stanley’s opinion little

weight was not supported by substantial evidence. (Doc. 17 at 9-11, 19-20). The Court will

address each assignment of error in turn.

A. Duty to Develop.

The Claimant argues that given the limited number of treatment records from the relevant

period the ALJ should have ordered a consultative examination. (Doc. 17 at 10).2 The ALJ did

not order a consultative examination and, according to the Claimant, he instead “cherry picked” and

“mischaracterized” findings from the treatment records to support his ultimate determination that

the Claimant was not disabled. (Id. at 10-11). The Claimant argues that the ALJ failed to apply

the correct legal standards and his decision is not supported by substantial evidence. (Id. at 11).

The Commissioner contends that the ALJ had sufficient evidence to make an informed

decision and the Claimant has not shown any evidentiary gaps in the record that should have been

addressed through a consultative examination. (Id. at 12-13). Further, the Commissioner

contends that the ALJ did not cherry pick or mischaracterize the treatment records from the relevant

period. (Id. at 16-18). Thus, the Commissioner argues that the ALJ was under no obligation to

order a consultative examination and his decision was supported by substantial evidence. (Id. at

18-19).

The ALJ has a basic duty to develop a full and fair record. Graham v. Apfel, 129 F.3d 1420,

1422 (11th Cir. 1997).3 This duty generally requires the ALJ to assist in gathering medical

evidence, and to order a consultative examination when such an evaluation is necessary to make an

2 The Claimant contends that the Office of Disability Determinations (ODD) attempted to

set up a consultative examination, but was unable to reach the Claimant, therefore the examination

was never conducted at the lower level of the administrative proceedings. (Doc. 17 at 10).

3 The basic duty to develop the record rises to a “special duty” where the claimant is not

represented during the administrative proceedings. Brown v. Shalala, 44 F.3d 931, 934-35 (11th

Cir. 1995). In this case, the Claimant was represented during the administrative proceedings. (R.

33). Therefore, the ALJ only had a basic duty to develop the record.

informed decision. 20 C.F.R. §§ 404.1512(b), 416.912(b). “Ordering a consultative examination

is a discretionary matter for the ALJ and would be sought ‘to try to resolve an inconsistency in the

evidence or when the evidence as a whole is insufficient to support a determination or decision’ on

the claim.” Banks for Hunter v. Comm’r, Soc. Sec. Admin., 686 F. App’x 706, 713 (11th Cir. 2017)

(quoting 20 C.F.R. § 416.919a(b)).4 There must be a showing that the ALJ’s failure to develop the

record led to evidentiary gaps in the record, which resulted in unfairness or clear prejudice, before

the court will remand a case for further development. Graham, 129 F.3d at 1423 (citing Brown, 44

F.3d at 934-35). At a minimum, clear prejudice “requires a showing that the ALJ did not have all

of the relevant evidence before him in the record . . . or that the ALJ did not consider all of the

evidence in the record in reaching his decision.” Kelly v. Heckler, 761 F.2d 1538, 1540 (11th Cir.

1985); see also 20 C.F.R. §§ 404.1519a(b), 416.919a(b) (listing situations that may require a

consultative examination).

The Claimant treated at the Orange Blossom Family Health Center (and nowhere else) on

seven occasions during the relevant time period. (R. 347-64, 450-57, 1149-82). In each instance,

the Claimant was treated by an APRN. (Id.). The Claimant routinely denied suffering any

problems, with the only exception being a report of a sore right arm in April 2017. (Id.).

Similarly, the Claimant’s physical examinations were often unremarkable, with the only exceptions

being an observation that his “feet showed an abnormal appearance” in February 2017 and an

observation that his “shoulders showed abnormalities” in April 2017. (Id.). The treatment

records, however, did not provide any details about these abnormalities, which were not observed

4 In the Eleventh Circuit, “[u]npublished opinions are not considered binding precedent, but

they may be cited as persuasive authority.” 11th Cir. R. 36-2.

during subsequent examinations. (See R. 1149-64). During this period, the Claimant was assessed

with various impairments, including hypertension, diabetes mellitus without complication,

hyperlipidemia, arthropathy,5 alcohol disorder, and nicotine dependence. (R. 347-64, 450-57,

1149-82).6

1. The ALJ was Under no Duty to Order a Consultative Examination

The Claimant points to several things in support of his argument that the ALJ failed to

sufficiently develop the record. First, the Claimant points to the dearth of treatment records from

the relevant period. (Doc. 17 at 10).7 Second, the Claimant points to the ODD’s attempt to

schedule a consultative examination during its initial review of his applications for disability

benefits. (Id.). Third, the Claimant points to the fact that he was treated by APRNs who did not

conduct “in-depth” examinations. (Id.). For these reasons, the Claimant argues that the ALJ

should have further developed the record by ordering a consultative examination. (Id. at 10-11).

None of these proffered reasons are persuasive. Specifically, the Claimant has cited no

authority requiring an ALJ to order a consultative examination because only a limited amount of

5 Arthropathy is defined as “a disease of a joint.” Meriam-Webster, arthropathy,

https://www.merriam-webster.com/dictionary/arthropathy (last visited September 4, 2019).

6 The Claimant was assessed with these impairments on more than one occasion during the

relevant period. (R. 351, 359, 452, 1154, 1162, 1170, 1179-80). The Claimant was also assessed

with dermatitis and mild to moderate depression once during the relevant period. (R. 1179-80).

7 The record contains more than one thousand pages of medical records dated between 2000

and 2017. (R. 343-1586). Only a small portion of those records are from the relevant time period.

(R. 347-64, 450-57, 1149-82). While the ALJ focused much of his analysis on the records from

the relevant time period, he does provide a brief overview of some pre-onset medical records to

provide context about the Claimant’s impairments. (R. 19-21). The Claimant does not argue that

the ALJ erred with respect to any of the pre-onset medical records. (See Doc. 17 at 9-11, 19-20).

Thus, there is no need to discuss the pre-onset medical records in this case.

treatment records exist, because the ODD attempted to schedule an examination,8 or because the

Claimant only treated with APRNs during the relevant period. (See Doc. 17 at 10-11). The lack

of such authority comes as no surprise given that the relevant inquiry is whether there is an

evidentiary gap that must be filled in order to avoid unfairness or clear prejudice. Graham, 129

F.3d at 1423. Thus, unless the Claimant can point to some evidentiary gap that could have been

filled, it is of no moment that the Claimant did not put forth extensive medical records, or that the

ODD attempted, but failed, to schedule an exam, or that all of the Claimant’s treatment records are

from APRNs.

The Claimant seems to suggest that the ALJ needed additional medical records, and that

such records must include an assessment and/or opinion from a physician in order to properly

determine whether the Claimant became disabled between the alleged disability onset date and the

date of the decision. (See Doc. 17 at 10-11). The ALJ, however, was under no such obligation so

long as the record contained sufficient evidence to determine whether the claimant is disabled. See

Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1269 (11th Cir. 2007) (“The [ALJ] . . . is

not required to order a consultative examination as long as the record contains sufficient evidence

for the administrative law judge to make an informed decision.”); Wind v. Barnhart, 133 F. App’x

8 The ODD’s attempt to schedule a consultative examination occurred during its initial

evaluation of the Claimant’s applications for disability. On October 24, 2016, the ODD attempted

to contact the Claimant’s representative to request, among other things, the “need” to arrange an

“exam.” (R. 282). The ODD could not reach the Claimant’s representative and left a voicemail,

in which it stated that if it did not hear from the Claimant’s representative within twenty-four hours

it would close out his claim. (Id.). Apparently, the Claimant’s representative did not return the

ODD’s call, and, on October 26, 2016, the ODD denied the Claimant’s applications for disability

benefits. (R. 92-93). The record does not further distill exactly why the ODD thought it “needed

to set up an exam,” nor does the Claimant explain why his representative did not request one while

the case was pending on reconsideration or before the ALJ. This paucity of evidence, coupled with

a lack of any legal authority, is insufficient to establish that the ALJ erred when he did not order a

consultative examination.

684, 693 (11th Cir. 2005) (noting that an ALJ is “not required to seek additional independent expert

medical testimony before making a disability determination if the record is sufficient and additional

expert testimony is unnecessary”). While there were a limited number of treatment records during

the relevant period, those treatment records show that the Claimant rarely complained about any

issues, and any issues that were observed, such as abnormalities with his feet and shoulders, were

only observed once during the relevant period. (R. 347-64, 450-57, 1149-82). The Claimant has

not identified – and the Court does not find – any specific inconsistency or gap in the record which

should have been addressed through a consultative examination. Ultimately, Claimant must bear

the responsibility and the consequences for the limited medical record, as it was her burden, not the

ALJ’s, to produce the medical evidence supporting her claim for disability. See Ellison v.

Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003) (“[T]he claimant bears the burden of proving that

he is disabled, and, consequently, he is responsible for producing evidence in support of his claim.”)

(citations omitted).

The Court finds that the medical records in evidence were sufficient for the ALJ to make an

informed decision as to whether the Claimant became disabled between his alleged disability onset

date and the date of the decision. Therefore, the Court finds that the ALJ did not error by failing

to order a consultative examination.

2. The ALJ did not Cherry-Pick or Mischaracterize the Record

The Claimant next argues that the ALJ cherry-picked and mischaracterized findings from

the Orange Blossom Family Health Center treatment records to support his determination that the

Claimant was not disabled. (Doc. 17 at 10-11). However, the Claimant has not identified any

records that the ALJ supposedly “cherry-picked” in order to reach his decision. And with respect

to his assertion that the ALJ mischaracterized the treatment records, the Claimant only points to the

ALJ’s finding that the treatment records repeatedly did not document any observations of

musculoskeletal problems despite observations of “abnormalities” in the Claimant’s feet and

shoulders. (Id.). According to the Claimant, the ALJ misrepresented the treatment records, and

therefore the ALJ’s decision is not supported by substantial evidence.

The ALJ addressed various aspects of the treatment records from the relevant period. (R.

19-21). While the ALJ did not mention every detail contained in those treatment records, it is

axiomatic that the ALJ need not discuss each and every piece of medical evidence contained within

a particular treatment note. See Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005) (“[T]here

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 her medical condition as a whole.” (internal quotation marks

omitted)). Here, considering the ALJ’s discussion of the treatment records, the Court is not

persuaded that he cherry-picked evidence to support his determination that the Claimant was not

disabled. Instead, it appears that the ALJ thoroughly considered the relevant treatment records and

considered the Claimant’s impairments as a whole. Thus, the Court finds the Claimant’s argument

that the ALJ cherry-picked the record unpersuasive.

The Court is also not persuaded that the ALJ mischaracterized the treatment records. The

only alleged mischaracterization involves the ALJ’s finding that the treatment records “repeatedly

did not document any observations of . . . musculoskeletal . . . problems.” (Doc. 17 at 10 (citing

R. 21). The Claimant contends this finding ignores the observations of feet and shoulder

“abnormalities” and assessments of arthropathy. (Id. at 10-11). With respect to the observations

noted under the musculoskeletal portion of the Claimant’s physical examinations, it is unclear what

the abnormalities were and whether they caused any functional limitations. The same is true for

the assessment of arthropathy, which was assessed in some situations despite the lack of subjective

complaints or unremarkable examinations. (R. 1149-64). Thus, the Court cannot say that the ALJ

mischaracterized the record by concluding that the treatment records repeatedly did not document

any observations of musculoskeletal problems. To the contrary, except for two nonspecific

abnormalities, every other examination of the Claimant’s musculoskeletal system was

unremarkable. Therefore, the Court is not persuaded that the ALJ mischaracterized the record, but,

instead, finds that the ALJ’s summary of the treatment notes from the relevant period is supported

by substantial evidence.

In light of the foregoing, the Court rejects the Claimant’s first assignment of error.

B. Dr. Stanley

The Claimant contends that the ALJ improperly substituted his opinion for that of Dr.

Stanley’s by relying on the same treatment records to reach a different conclusion then Dr. Stanley

concerning the Claimant’s RFC. (Doc. 17 at 19-20). Thus, the Claimant argues that the ALJ erred

by assigning Dr. Stanley’s opinion little weight. (Id.).

The Commissioner contends that the ALJ properly considered Dr. Stanley’s opinion along

with the other evidence of record and, when considering the record as a whole, including treatment

records post-dating Dr. Stanley’s opinion, the ALJ appropriately assigned Dr. Stanley’s opinion

little weight. (Id. at 20-22).

The ALJ assesses the claimant’s RFC and ability to perform past relevant work at step four

of the sequential evaluation process. Phillips v. Barnhart, 357 F.3d 1232, 1238 (11th Cir. 2004).

The RFC “is an assessment, based upon all of the relevant evidence, of a claimant’s remaining

ability to do work despite his impairments.” Lewis, 125 F.3d at 1440. The ALJ is responsible for

determining the claimant’s RFC. 20 C.F.R. §§ 404.1546(c), 416.946(c). In doing so, the ALJ

must consider all relevant evidence, including, but not limited to, the medical opinions of treating,

examining, and non-examining medical sources. See 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3).

The ALJ must consider a number of factors in determining how much weight to give each

medical opinion, including: 1) whether the physician has examined the claimant; 2) the length,

nature, and extent of the physician’s relationship with the claimant; 3) the medical evidence and

explanation supporting the physician’s opinion; 4) how consistent the physician’s opinion is with

the record as a whole; and 5) the physician’s specialization. 20 C.F.R. §§ 404.1527(c), 416.927(c).

The opinion of a non-examining physician is generally entitled to little weight and, “taken

alone, do[es] not constitute substantial evidence.” Broughton v. Heckler, 776 F.2d 960, 962 (11th

Cir. 1985). The ALJ, however, may rely on a non-examining physician’s opinion where it is

consistent with the medical and opinion evidence. See 20 C.F.R. §§ 404.1527(e)(2)(ii) (2016),

416.927(e)(2)(ii) (2016); see also Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1160 (11th Cir.

2004) (holding that the ALJ did not err in relying on a consulting physician’s opinion where it was

consistent with the medical evidence and findings of the examining physician); Edwards v. Sullivan,

937 F.2d 580, 584-85 (11th Cir. 1991).

Dr. Stanley did not treat or examine the Claimant. Instead, Dr. Stanley reviewed the

medical records through the date of her opinion and, based on those records, completed an RFC

assessment on January 10, 2017. (R. 103-04). Dr. Stanley’s opinions concerning the Claimant’s

ability to lift, carry, sit, stand, and walk limited him to light work as defined in 20 C.F.R. §

404.1567(b) and § 416.967(b). (R. 102).

The ALJ considered Dr. Stanley’s opinion and assigned it little weight, explaining:

This is inconsistent with the medical records within the relevant period. The

examinations at Orange Blossom repeatedly did not document any observations of

problems with musculoskeletal or neurological problems. Further, it was regularly

observed gait and stance were normal and ambulation was not limited. In addition,

the examinations repeatedly noted blood pressure was normal, the monofilament

examination of the foot was normal and the laboratory results did not indicate

extremely high blood sugar levels or A1c (Exhibits B1F, B3F, B11F, B16F).

Within the relevant timeframe, the records have not indicated there were serious

medical complications, surgical procedures, or other significant changes since the

prior decision. In fact, the examinations within this time have been routinely

unremarkable.

(R. 21-22).

The Claimant’s arguments as to this assignment of error are unavailing. First, the Court

notes that Dr. Stanley’s opinion was not entitled to any special deference since she was a non-

examining physician. Broughton, 776 F.2d at 962. Second, the ALJ considered treatment records

that Dr. Stanley did not review, specifically, medical records from after January 10, 2017 through

December 31, 2017. Thus, this is not a situation where the ALJ considered the same exact evidence

as the physician in question and, based on that evidence, reached a different conclusion. Instead,

the ALJ had a broader picture of the Claimant’s longitudinal medical record and, based on that

additional information, concluded that Dr. Stanley’s opinion was inconsistent with the treatment

records from the relevant time period. (R. 21-22). Thus, the Court finds that the ALJ did not

substitute his opinion for that of Dr. Stanley and that the reasons he gave in support of the weight

he assigned to Dr. Stanley’s opinion are supported by substantial evidence.

In light of the foregoing, the Court rejects the Claimant’s second and final assignment of

error.

V. Conclusion

Accordingly, it is ORDERED that:

1. The Commissioner’s final decision is AFFIRMED.

2. The Clerk is DIRECTED to enter judgment in favor of the Commissioner and against

the Claimant and CLOSE the case.

DONE and ORDERED in Orlando, Florida on September 4, 2019.

LESLIE R. HOFFMAN

UNITED STATES MAGISTRATE JUDGE

Copies to:

Counsel of Record

The Court Requests that the Clerk

Mail or Deliver Copies of this order to:

The Honorable Eric S. Fulcher

Administrative Law Judge

c/o Office of Disability Adjudication and Review

SSA ODAR Hearing Ofc.

3505 Lake Lynda Dr.

Suite 300

Orlando, FL 32817-9801

-13-