# Valentine v. Commissioner of Social Security

> District Court, M.D. Florida · September 4, 2019

URL: https://www.frixlaw.com/law-library/cases/10103596

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** September 4, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## How later opinions describe it (automated extraction)

- 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

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10103596. Public record. Not legal advice.