The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
MARITZA IVETTE DELGADO
TORRES,
Claimant,
v. Case No: 6:18-cv-2059-Orl-DCI
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
MEMORANDUM OF DECISION
Maritza Ivette Delgado Torres (Claimant), proceeding pro se, appeals the Commissioner
of Social Security’s final decision denying her application for a period of disability and Disability
Insurance Benefits. Doc. 1. Claimant requests that the Court “reverse said decision or, in the
alternative, to remand this case for a rehearing de novo.” Id. For the reasons set forth below, the
Commissioner’s final decision is AFFIRMED.
I. Procedural History
This case stems from Claimant’s application for a period of disability and disability
insurance benefits. R. 15. Claimant alleged a disability onset date of November 11, 2006. Doc.
17 at 1. The claims were denied initially and upon reconsideration. R. 15. A hearing was
conducted, and on November 8, 2017, the ALJ issued an unfavorable decision. R. 15-29. On
September 26, 2018, the Appeals Council denied the request for review. R. 1-4.
II. The ALJ’s Decision
In the decision, the ALJ found that Claimant has the following severe impairments: status
post right leg fracture; fibromyalgia; depressive disorder; posttraumatic stress disorder (20 CFR
404.1520(c)). R. 18. The ALJ further found that Claimant does not have an impairment or
combination of impairments that meets or medically equals any listed impairment. R. 18.
The ALJ found that Claimant had the RFC to perform light work as defined in 20 C.F.R. §
404.1567(b) except:
[S]he could never climb ladders, ropes, or scaffolds; she could occasionally climb
ramps or stairs, as well as occasionally balance, stoop, kneel, crouch, or crawl; she
could perform simple, routine tasks, with occasional changes in a routine work
setting.
R. 21.
The ALJ concluded that Claimant is unable to perform past relevant work. R. 27.
Ultimately, the ALJ found that Claimant was not under a disability, as defined in the Social
Security Act, at any time from November 11, 2006, the alleged onset date, through December 31,
2009, the date last insured (20 CFR 404.1520(g)).
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)
(quotations omitted). 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. Discussion
Based on a review of the pro se Claimant’s Memorandum in support of the Complaint, the
Court agrees with the Commissioner’s contention that Claimant appears to make three arguments
for reversal or remand. See Doc. 17. The Court will address these three arguments in turn.
A. Whether the Appeals Council Erred by Not Considering Evidence
Submitted on Appeal.
Claimant states that she “had three casts done on her right leg, on Nov. 18, 2001, on Nov.
30, 2001. . . and Dec. 21, 2001.” Doc. 17 at 2. Claimant provides that she “visited” Dr. Ray at the
National Training Center Sports Medicine Institute on December 21, 2001, and he subsequently
took her cast off. Id. Claimant then states that Dr. Ray treated her from December 19, 2001
through March 13, 2003 and she complained about the pain many times to the physician. Id. at 3.
Claimant states that she submitted Dr. Ray’s invoices to the Appeals Council but it found that the
“evidence does not show a reasonable probability that it would change the outcome of the
decision.” Id.
Claimant argues that the Appeals Council must consider evidence that is new, material,
and that is chronologically relevant because it relates to the time before the date of the ALJ hearing
decision. Id., citing 20 C.F.R. 404.970(b). Claimant contends that if there is new and
chronologically relevant evidence then the Appeals Council must review the case to see whether
the “ALJ’s action, findings, or conclusion is contrary to the weight of the evidence currently of
record.” Id. Claimant argues that the Appeals Council did not adequately evaluate the new
evidence and “when a claimant properly presents new evidence, and the Appeal Council denies
review, the AC must show in its written denial that it has adequately evaluated the new evidence.”
Id. Claimant asserts that if the Appeals Council perfunctorily adheres to the ALJ’s decision, the
Commissioner’s findings are, by definition, unsupported by substantial evidence. Id. at 4, citing
42 U.S.C.A. § 405(g).
A claimant is generally permitted to present new evidence at each stage of the
administrative process. Ingram v. Comm’r of Soc. Sec., 496 F.3d 1253, 1261 (11th Cir. 2007).
The Appeals Council must consider evidence that was not presented to the ALJ when it is new,
material, and chronologically relevant. Id.; see 20 C.F.R. §404.970(a)(5). Evidence is new when
the claimant submits it to the Appeals Council after the ALJ’s decision. See Washington v. Soc.
Sec. Admin., Comm’r, 806 F.3d 1317, 1321 (11th Cir. 2015). It is new if it is not cumulative of
other evidence in the record. See Robinson v. Astrue, 365 F. App’x 993, 996 (11th Cir. 2010).
Evidence is material if a reasonable probability exists that the new evidence would change the
administrative result. Id. at 1321. It is chronologically relevant if it relates to the period on or
before the date of the ALJ’s hearing decision. 20 C.F.R. § 404.970(a)(5).
The Appeals Council must grant the petition for review if the ALJ’s “action, findings, or
conclusion is contrary to the weight of the evidence currently of record.” Ingram, 496 F.3d at
1261. The Appeals Council has the discretion to not review the ALJ’s decision denying benefits.
Washington, 806 F.3d at 1320. If the Appeals Council considers new evidence but denies review,
then it is not required to articulate its reasons for denying review. Mitchell v. Comm’r, Soc. Sec.
Admin., 771 F.3d 780, 784-85 (11th Cir. 2014). If a claimant challenges the Appeals Council’s
denial, the reviewing court must determine whether the new evidence renders the denial of benefits
erroneous. Id. at 785 (citing Ingram, 496 F.3d at 1262).
Here, the Appeals Council found that there was no basis for changing the ALJ’s decision.
R. 1. With regard to the additional evidence, the Appeals Council stated the following:
You submitted additional evidence from National Training Center Sports Medicine,
December 29, 2001, 1 page, and December 6, 2001 to March 13, 2003, 14 pages;
statements from the claimant’s mother dated May 30, 2014, June 20, 2017, and July
26, 2017, 3 pages total; and a statement from your neighbor dated April 21, 2017,
1 page. We find this evidence does not show a reasonable probability that it would
change the outcome of the decision. We did not exhibit this evidence.
You submitted evidence from Vega Alta Radiology, May 3, 2013, 1 page. The
Administrative Law Judge decided your case through December 31, 2009. This
additional evidence does not relate to the period at issue. Therefore, it does not
affect the decision about whether you were disabled beginning on or before
December 31, 2009.
R. 2.
Accordingly, with respect to Dr. Ray and the statements of the mother and neighbor,1 it
seems that the Appeals Council implicitly found that the evidence was new, but that it was not
material. The Appeals Council then separately addressed the Vega Alta Radiology record.
Despite Claimant’s apparent contention to the contrary, the Appeals Council was not
required to provide a more detailed explanation of why it denied Claimant’s request for review.
Mitchell, 771 F.3d at 784-85. The Appeals Council considered the new records when it made its
decision and those documents are included within the administrative record. R. 40-68. Any
challenge based on the sufficiency of the Appeals Council’s explanation does not entitle Claimant
to relief.
Further, aside from Claimant’s reference to Dr. Ray’s invoice and treatment notes, there is
no discussion at all on how the evidence changes the outcome of the ALJ’s decision. The
physician’s invoices and his notes are dated years before the alleged onset date and relate to
Claimant’s leg fracture. R. 55-68. The notes reflect statements such as “satisfactory recovery
1 While it appears that Claimant only challenges the Appeals Council’s decision with regard to the
Dr. Ray evidence, the Court has reviewed her Memorandum as it relates to the other additional
evidence in light of the pro se nature of this case.
status-post closed manipulation,” “no further pain medicine at this time,” “x-ray examination of
the right tibia shows satisfactory AP alignment,” “normal alignment on the lateral,” “as we see
more healing we are going to change the cast,” “fibula appears to be healing,” “satisfactory healing
of fibula and right tibial fracture,” “the fracture site appears to be stable,” and “she is going to
require no surgery.” Id. Claimant points to nothing in these records and the Court’s review does
not find any basis to find that the denial of benefits was erroneous.
Claimant does not directly mention the new evidence with regard to her mother’s and
neighbor’s statements, so it remains to be seen if she contends that these records are material.
Assuming arguendo (because of her pro se status) that she does, she is still not entitled to relief.
Claimant submits one statement from her neighbor and three statements from her mother. R. 40-
43. The Court does not see how there is a reasonable probability that these documents would
change the administrative outcome. Notably, while the statements might be new, the ALJ
considered other third-party statements from Claimant’s mother and found that they were only
entitled to some weight. R. 22. The ALJ noted that the statements were from a non-medical
professional source and not based upon medical examinations or testing. Id. The ALJ found that
to the extent the opinion suggested greater limits than are found in the RFC, such opinions are
inconsistent with the medical records. Id. The Court is not persuaded that the mother’s new
statements and the neighbor’ statement regarding a conversation she had with Claimant would
change the unfavorable decision.
Finally, with regard to the Alta Vega Radiology record from 2013, it is an MRI of
Claimant’s cervical spine that reflects cervical spondylosis, bulging disc annulus at C2-C4, C4-C
and C5-C6, vertebral body hemangiomata, and narrowing of the left foramen of less than 50
percent at the C5-C-6 level. R. 54. The Court finds no error in the Appeals Council’s treatment
of this evidence. The Council correctly noted that the evidence did not relate to the period at issue.
Again, the evidence was not material as it does not give rise to a reasonable probability that the
administrative outcome would change. There is nothing in the additional evidence, or Claimant’s
Memorandum, that demonstrates that she is more functionally limited than the ALJ determined.
B. Whether the ALJ Properly Evaluated Claimant’s Subjective Complaints
While not entirely clear, it appears that Claimant argues that the ALJ failed to give specific
reasons for rejecting her testimony regarding the severity of her symptoms and did not properly
evaluate her complaints of pain. See Doc. 2-3. The ALJ’s decision provides the following:
Admittedly, the claimant testified to limited activities of daily living; however,
these assertions cannot be objectively verified. The claimant’s testimony,
considered in light of the record as a whole, is not entirely convincing, since her
pain and other subjective symptoms were not of such frequency, intensity, or
duration as to preclude all work activity during the relevant period. The reported
limitations at the hearing appear to be self-prescribed. For instance, the
psychological consultative examination obtained during the period at issue showed
that the claimant admitted to a normal range of daily activities. For instance, the
claimant admitted to the psychologist that she was able to independently take care
of ‘her own hygiene, grooming and dressing,’ that she was ‘able to drive on short
trips wherever she needs,’ that she went ‘out on other errands and appointments,’
and that she could cut coupons, read mail, and sort recyclables (Exhibit C10F/2).
The claimant reported on the function report that she was able to drive, prepare her
own meals, and perform routine household chores. Accordingly, the
Administrative Law Judge concludes that the claimant’s testimony is consistent
only to the extent that the alleged symptoms prevent her from performing beyond
the light level of exertion.
Maria Torres Santiago, the claimant’s mother, submitted third party statements that,
overall, seem to parallel the allegations put forth by the claimant. (Exhibit C28E).
The undersigned considered those statements, but gave them only some weight,
since they were provided by non-medical professional sources, and the statements
are not based upon objective medical examination or testing. To the extent, the
opinion suggests greater limits than are found in the residual functional capacity
statement above, such opinions are inconsistent with the medical records.
After careful consideration of the evidence, the undersigned finds that the
claimant’s medically determinable impairments could reasonably be expected to
cause the alleged symptoms; however, the claimant’s statements concerning the
intensity, persistence and limiting effects of these symptoms are not entirely
consistent with the medical evidence and other evidence in the record for the
reasons explained in this decision.
R. 22.
A claimant may establish "disability through his own testimony of pain or other subjective
symptoms." Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). If the ALJ determines that
the claimant has a medically determinable impairment that could reasonably produce the claimant's
alleged pain or other symptoms, the ALJ must then evaluate the extent to which the intensity and
persistence of those symptoms limit the claimant's ability to work. 20 C.F.R. §§ 404.1529(c)(1),
416.929(c)(1). In doing so, the ALJ considers a variety of evidence, including, but not limited to,
the claimant's history, the medical signs and laboratory findings, the claimant's statements, medical
source opinions, and other evidence of how the pain affects the claimant's daily activities and
ability to work. Id. at §§ 404.1529(c)(1)-(4).
Contrary to Claimant’s conclusory challenge to the ALJ’s evaluation of her subjective
complaints, the ALJ gave explicit and adequate reasons for his findings. The ALJ found
inconsistencies in Claimant’s testimony and information in the record regarding Claimant’s daily
activities. Further, the ALJ did not discount the subjective evidence completely. The ALJ said it
was consistent to the extent that the alleged symptoms prevent Claimant from performing beyond
the light level of exertion which is reflected in the RFC. The Court finds that substantial evidence
supports the ALJ’s determination with respect to the subjective complaints.
C. Whether the ALJ Erred in Not Considering Pain a Severe Impairment
Claimant argues that “the ALJ failed to acknowledge pain as a severe impairment, the
relevant evidence includes subjective reports of pain, testified by the claimant.” Doc. 17 at 4,
U.S.C. §§ 404.1520, 404.1545. The Commissioner asserts, and the Court agrees, that pain is not
in and of itself an impairment. Instead, pain is a symptom. Wood v. Astrue, 2012 U.S. Dist. LEXIS
33140, at *24 (Feb. 14, 2012), rep. and recommendation adopted by 2012 U.S. Dist. LEXIS 33116
(M.D. Fla. Mar. 13, 2012) (“Pain, however, is not an impairment; pain is a symptom.”).
Accordingly, there is no merit to her claim.
Even assuming that pain is its own impairment, she is still not entitled to relief. The
Eleventh Circuit has described step two as a "filter" requiring the denial of any disability claim
where no severe impairment or combination of impairments is present. Tuggerson-Brown v.
Comm’r of Soc. Sec., 572 F. App’x 949, 950 (11th Cir. 2014) (quoting Jamison v. Bowen, 814
F.2d 585, 588 (11th Cir. 1987)). “To proceed to step three of the evaluation process, an ALJ need
only conclude that an applicant had ‘at least one’ severe impairment.” Tuggerson-Brown, 572 F.
App’x at 951 (quoting Jamison, 814 F.2d at 588). So long as the ALJ finds any impairment or
combination of impairments severe at step two, the ALJ may proceed to the remaining steps and
there is no need for the ALJ to identify every severe impairment at step-two. Tuggerson-Brown,
572 F. App’x at 951.
At step-two of the evaluation of Claimant’s application the ALJ found that she had status
post-right leg fracture, fibromyalgia, depressive disorder, and posttraumatic stress disorder. R. 18.
Any argument that the ALJ was required to identify her pain at this step in the evaluation process
is not supported by the law. Claimant suffered no harmful error at step-two.
To the extent that Claimant contends that the ALJ erred with respect to her pain at the later
steps of the process, the Court still rejects the claim. While an ALJ is not required to determine
whether every alleged impairment was “severe,” he is required to consider all impairments,
regardless of severity, in conjunction with one another. Tuggerson-Brown, 572 App’x at 951. In
the instant case, it is apparent from the ALJ’s decision that she did consider all medical evidence
in combination. The ALJ stated that in making the finding regarding the RFC she considered all
symptoms and the entire record. R. 21. Moreover, the ALJ specifically discusses Claimant’s
allegations regarding her pain. R. 22. The Court finds that the ALJ’s decision was based on the
substantial evidence.
Moreover, while not clear, it appears that Claimant contends that the ALJ failed to find that
her neuropathy, obesity, and scoliosis were severe impairments. See Doc. 17 at 4. Claimant states
that the combination of these impairments (along with her depression, post-traumatic stress
disorder, and fibromyalgia) limited her ability to work and daily activities. Id. “[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.”). The “mere existence” of an impairment does not reveal the
extent to which the impairment limits the claimant’s ability to work or undermines the ALJ’s
decision. Moore v. Barnhart, 405 F.3d 1208, 1213 n.6 (11th Cir. 2005) (citing McCruter v. Bowen,
791 F.2d 1544, 1547 (11th Cir. 1986)).
As discussed, the record contains substantial evidence to support the ALJ’s decision, and
Claimant’s perfunctory inclusion of the words “obesity, neuropathy, and scoliosis,” does not
persuade the Court otherwise.
V. Conclusion
For the stated reasons, it is ORDERED that:
1. The final decision of the Commissioner is AFFIRMED;
2. The Clerk is directed to enter judgment accordingly and close the case.
DONE and ORDERED in Orlando, Florida on February 21, 2020.
UNITED STATES MAGISTRATE JUDGE
Copies furnished to:
Counsel of Record
Unrepresented Party
The Court Requests that the Clerk
Mail or Deliver Copies of this order to:
The Kathleen H. Eiler
Administrative Law Judge
c/o Office of Disability Adjudication and Review
SSA Oho Hearing Ofc
3505 Lake Lynda Dr.
Suite 300
Orlando, FL 32817