Cardoso v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

JULIE DILORENZO CARDOSO, |

Plaintiff,

v. CASE NO. 8:18-cv-2524-T-TGW

ANDREW M. SAUL,

Commissioner of Social Security,!

Defendant.

ORDER ©

The plaintiff seeks judicial review of the denial of her claim for

Social Security ‘disability benefits.2 Because the decision of the

Commissioner of Social Security is supported by substantial evidence, and

the plaintiff does not identify reversible error, the decision will be affirmed.

I.

The plaintiff, who was forty-six years old on the date that she

was last insured and who has a college degree, has worked as a probation

officer (Tr. 35). She filed a claim for Social Security disability benefits,

1Andrew M. Saul became the Commissioner of Social Security on June 17, 2019

and should be substituted as the defendant. See Fed. R. Civ. P. 25(d).

The parties consented to the exercise of jurisdiction by a United States Magistrate

Judge (Doc. 13). -

alleging that she became disabled on June 28, 2012, due to severe

degenerative disc disease and herniated discs (Tr, 67).? The plaintiff's claim

was denied initially and upon reconsideration.

The plaintiff, at her request, then received a de novo hearing

before an administrative law judge. The law judge found that the plaintiff

had severe impairments of obesity and L5-S1 disc herniation, but that she

was not disabled (Tr. 13-20). The Appeals Council let the decision of the

law judge stand as the final decision of the Commissioner of Social Security.

The plaintiff then sought review in-this court (Case No. 8:16.

cv-149-AAS). United States Magistrate Judge Amanda A. Sansone entered

an Order remanding the matter for further administrative proceedings

because the law judge “failed to show good cause for giving the non-

examining consultants’ opinions greater weight than the opinion of treating

physician Dr. Guirguis and improperly reached his own conclusions based

on his review of the medical records” (Doc. 16, p. 9 in Case No. 16-cv-0149),

Accordingly, the Appeals Council vacated the decision of the

Commissioner, and remanded the case to the law judge for further

proceedings consistent with the district court’s Order (Tr. 735-736).

. ?This is an amended onset date. The original alleged onset date was September _

4, 2009.

In the meantime, the plaintiff filed another application for

disability insurance benefits, alleging disability since May 16, 2014, which

was the day after the law judge’s decision, due to degenerative disc disease

and herniated discs, and neuropathy in her feet (Tr. 882). The subsequent

application was denied initially and on reconsideration (Tr. 715-716, 854—

55). The applications were consolidated (Tr. 951).

Administrative law judge Kurt G. Ehrman then held a

supplemental hearing (Tr. 649-674). He found that the plaintiff had, through

her last date insured of December 31, 2014, severe impairments of lumbar

radiculopathy and obesity (Tr. 628). The law judge determined, with those

impairments, the plaintiff had the following residual functional capacity

during the pertinent time period (Tr. 628-29):

[She could] perform sedentary work as defined in

20 CFR 404.1567(a), subject to the following

limitations: She could lift up to 10 pounds

occasionally and less than 10 pounds frequently;

She could stand and/or walk for up to 2 hours, and

sit for up to 6 hours, each in an 8-hour workday □

with customary breaks; She was limited to no more

. than 30 minutes of continuous standing and/or

walking, followed by an option to sit for up to 30

minutes; She could not climb ladders, ropes or

scaffolds, but could occasionally climb ramps and

stairs; She could frequently balance, and could

occasionally stoop, kneel, crouch and crawl; She

could frequently reach and handle bilaterally; She

had to avoid concentrated exposure to extreme □

3 .

cold, extreme heat, wetness or humidity and

excessive vibration; She had to avoid all exposure

to the use of hazardous industrial machinery and

unprotected heights.

The law judge concluded that, with this residual functional _

- capacity, the plaintiff could not perform any past relevant work (Tr. 635).

However, based on the testimony of a vocational expert, the law judge

determined that the plaintiff's residual functional capacity did not preclude

her from performing other work available in significant numbers in the

national economy, such as pre-parole counseling aide, order clerk, document

preparer and final assembler (Tr. 636-37). Consequently, the law judge

found that the plaintiff was not disabled from her alleged onset date of June

28, 2012, through December 31, 2014, her date last insured (Tr. 638). That

determination became the final decision of the Commissioner of Social

Security (Tr. 623).

II.

In order to be entitled to Social Security disability benefits,a

claimant must be unable “to engage in any substantial gainful activity by

reason of any medically determinable physical or mental impairment which

... has lasted or can be expected to last for a continuous period of not less

than 12 months.” 42 U.S.C. 423(d)(1)(A). A “physical or mental

.

impairment,” under the terms of the Social Security Act, is one “that results

from anatomical, physiological, or psychological abnormalities which are

demonstrable by ‘medically acceptable clinical and laboratory diagnostic

techniques.” 42 U.S.C. 423(d)(3). In this case, the plaintiff must show that

she became disabled before her insured status expired on December 31,

2014. 42 U.S.C. 423(c)(1); Demandre v. Califano, 591 F.2d 1088, 1090 (5"

Cir. 1979), cert. denied, 444 U.S. 952.

A determination by the Commissioner that a claimant is not

disabled must be upheld if it is supported by substantial evidence. 42 U.S.C. □

405(g). Substantial evidence is “such relevant evidence asa reasonable mind

might accept as adequate to support a conclusion.” Richardson v. Perales,

402 U.S. 389, 401 (1971), quoting Consolidated Edison Co. v. NLRB, 305

U.S. 197, 229 (1938). Under the substantial evidence test, “findings of fact

made by administrative agencies ... may be reversed ... only when the record

compels a reversal; the mere fact that the record may support a contrary

conclusion is not enough to justify a reversal of the administrative findings.”

Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11" Cir. 2004) (en banc).

It is, moreover, the function of the Commissioner, and not the

courts, to resolve conflicts in the evidence and to assess the credibility of the

witnesses. Grant v. Richardson, 445 F.2d 656 it Cir. 1971). Similarly, it

is the responsibility of the Commissioner to draw inferences from the

evidence, and those inferences are not to be overtumed if they are supported

by substantial evidence. Celebrezze v. O’Brient, 323 F.2d 989, 990 (5" Cir.

1963). ,

Therefore, in determining whether the Commissioner’s

decision is supported by substantial evidence, the court is not to reweigh the

evidence, but is limited to determining whether the record as a whole

contains sufficient evidence to permit a reasonable mind to conclude that the

claimant is not disabled. However, the court, in its review, must satisfy itself

that the proper legal standards were applied and legal requirements were met.

Lamb v. Bowen, 847 F.2d 698, 701 (11" Cir. 1988).

Il.

The crux of the plaintiff's appeal. is that the Commissioner

“improperly reject[ed] the work-related limitations opined by plaintiffs

long-time pain specialist Dr. Robert} Guirguis that would have directed a

finding of entitlement to disability” (Doc. 14, p. 1) (emphasis omitted). This

is a close call; however, giving due deference to the law judge, the

Commissioner’s decision is properly affirmed. See Adefemi v. Ashcroft,

supra, 386 F.3d at 1027 (findings of: fact made by administrative agencies ...

may be reversed ... only when the record compels a reversal; the mere fact

that the record may support a contrary conclusion is not enough to justify a

reversal of the administrative findings”).

Dr. Robert Guirguis was the plaintiffs pain management

physician for several years, including during the alleged disability period.

He expressed his opinion of the plaintiffs limitations in a Functional

Capacity Assessment by Treating Physician form dated March 11, 2014 (Tr.

584). Dr. Guirguis opined, inter alia, that the plaintiff could lift and carry no

more than 5 pounds; sit 2-4 hours, and stand/walk up to two hours, during

an 8-hour workday; would need to lie down during the workday and that she

would be absent three or more days per month (id.). Thus, Dr. Guirguis

essentially opined that the plaintiff was disabled.

Dr. Guirguis attributed these limitations to lumbar/cervical

discogenic rupture (id.). On September 5, 2014, plaintiff's counsel deposed

Dr. Guirguis (Tr. 585-617), at which time Dr. Guirguis affirmed that the

plaintiff's diagnostic testing results could reasonably be expected to produce

chronic pain and radicular symptoms (Tr. 594). Dr. Guirguis also indicated

that his opined limitations were prophylactic measures to reduce the

‘Throughout: the plaintiffs argument, she refers to the law judge’s previous

decision that was vacated and the district court’s Order which evaluated that decision (see

Doc. 14, pp. 11-12, 14-17, 20). These references are not; as the plaintiff argues, a helpful

“overview” (Doc. 14, p. 9), but rather confuse the issues presented in this appeal.

Therefore, these irrelevant references are disregarded.

possibility of pain flare-ups (see Tr. 601-02). -

Opinions from treating physicians are entitled to substantial or

considerable weight unless there is good cause for not giving them such

weight. Hargress v. Social Security Administration, Commissioner, 883

F.3d 1302, 1305'(11" Cir. 2018). Good cause exists when the treating

physician’s opinion is not bolstered by the evidence, the evidence supports

a contrary finding, or the opinion is conclusory or inconsistent with the

physician’s own medical records. Id. “Where'an ALJ articulates specific

reasons for failing to accord the opinion ofa treating or examining physician

controlling weight and those reasons are supported by substantial evidence,

there is no reversible error.” Poellnitz v. Astrue, 349 Fed. Appx. 500, 502

(11" Cir. 2009).

The law judge summarized Dr. Guirguis’s opinion and

explained why he gave it little weight (Tr. 634). He stated (id.):

In March 2014, treating source, Robert Guirguis,

D.O., provided a written assessment of the

claimant’s physical function. Dr. Guirguis opined

that the claimant had to lie down for 1-2 hours

during each 8-hour period; needed to take longer

and more frequent breaks from work than

customarily allowed in the competitive workplace;

would miss work 3 or more times per month; could

sit for no more than 4 hours total in an 8-hour

workday, and stand and/or walk for no more than

2 hours total in an 8-hour workday (Exhibits 13F;

14F/36). I gave this opinion little weight for a

number of reasons .... Although Dr. Guirguis

indicated that this opinion correlated well with the

evidence of record (Exhibit 14F), I find good cause

to refrain from giving this opinion substantial

weight, as it is highly inconsistent with Dr.

Guirguis’ own medical records, which, as outlined

above, demonstrate reportedly moderate levels of

pain, responsive to some forms of treatment, in the

context of physical examinations indicative of

fairly modest musculoskeletal and/or neurological

dysfunction (See, e.g., Exhibit 10F). As such,

these records are inconsistent with Dr. Guirguis’

contentions that the claimant requires frequent rest

periods, frequent periods of lying down, and

limitation to no more than 2 hours of total

standing/walking in an 8-hour workday. Further,

although Dr. Guirguis indicated that his opinion

was supported by the objective imaging of record,

at least partly because that imaging demonstrated

degradation of the claimant’s condition over time,

radiology reports postdating the relevant period

suggest that the claimant’s condition actually

tends toward stability over time. Still further, the

above-referenced activities of daily living,

reported by the claimant h[er]self, are inconsistent

with the extreme functional limitations opined by

Dr. Guirguis.

Additionally, the law judge noted that the plaintiff did not

undergo more aggressive surgical intervention, and while Dr. Guirguis

opined that such treatment is typically unsuccessful in chronic pain patients,

“the general stability of the claimant’s treatment regimen is at least some

evidence of treatment sufficiency, and the claimant’s previously-mentioned

9 .

reports of ‘moderate’ pain support this interpretation” (Tr. 632).

The law judge’s reasoning states good cause for discounting Dr.

Guirguis’s opinion of disabling limitations. Thus, although the law judge

found that the plaintiff had significant spinal abnormalities, “[t]he mere

existence of an impairment does not reveal the extent to which it limits a

claimant's ability to work ....” Robinson v. Astrue, 365 Fed. Appx. 993, 995

(11" Cir. 2010), citing Moore v. Barnhart, 405 F.3d 1208, 1213 n.6 (11" Cir.

2005). Rather, it is the functional limitations that determine disability.

Moore v. Barnhart, supra; Wind v. Barnhart, 133 Fed. Appx. 684, 690 (11"

Cir. 2005); McCruter v. Bowen, 791 F.2d 1544, 1547 (11" Cir. 1986).

In this regard, the law judge elaborated that (Tr. 631):

trends in the medical signs observed during the

claimant’s physical examinations ... fail to

substantiate the level of back pain alleged by the

claimant. Rather, objective examinations of

record typically demonstrated -only modest

symptomology such as lumbar spasm and spinal

tenderness to palpitation (TTP), in the context of

normal gait (e.g., Exhibits 1F/5) .... full range of

. motion (ROM), normal muscle strength, and

normal gait (Exhibits 2F/5-6; 5F/8-10, 12-13;

10F/3, 30, 33-34, 40-43). Although more recent

exams performed in 2014, closer to the claimant’s

DLI supported some level of ROM limitation, the

claimant most often continued to display normal

gait, obviously undermining the claimant’s

allegations of severe limitation of

standing/walking, but also undermining the

10

claimant’s allegations of highly-functionally-

disruptive pain (e.g., Exhibits 15F/8, 13.18). Only

rarely ... did physical examination yield findings

of abnormal gait (e.g., Exhibit 10F/14), and the

examination report associated with at least one

such examination was ambiguous at best,

simultaneously noting both antalgic gait and non-

antalgic gait (Exhibit 11F/3-4).

The law judge continued (Tr. 631-32):

Additionally, the claimant notably reported for

consultative examination with Robert Burchett,

M.D., with complaints such as those outlined

above. However, musculoskeletal evaluation

continued to be unsupportive, revealing full 5/5

strength of upper and lower extremities, while

noting no ROM. difficulties whatsoever, and

remaining salient only for positive findings of

tenderness of the thoracic and lumbar spine. Signs

of neurologic dysfunction were similarly modest, □

showing intact sensation and no abnormalities of

deep tendon reflexes (DTR)s, with no mention of

nerve dysfunction; and although the claimant’s

examiner did observe unsteady gait, he later

described this gait as only “mildly hesitant” and

not demanding of any use of assistive device for

ambulation. Overall, Dr. Burchett expressly

indicated that the claimant’s passive ROM was

within normal limits as to both the lumbar and

thoracic spine, and that she exhibited no

significant deformities, grip strength loss, or

manipulative difficulties (Exhibit 4F).

This substantial evidence of non-disabling clinical examination findings

supports the law judge’s determination that, while the plaintiffs

impairments are substantial, they do not warrant the extreme functional

11

limitations opined by Dr. Guirguis. See Phillips v. Barnhart, 357 F.3d 1232,

1241 (11% Cir. 2004) (good cause for discounting a treating physician's

opinion when extreme functional limitations are inconsistent with the

doctor's own medical records); 20 C.F.R. 404.1529(c)(2) (“Objective

medical evidence ... is a useful indicator to assist us in making reasonable

conclusions about the intensity and persistence of symptoms and the effect

those symptoms ... may have on [a plaintiff's] ability to work ....”); see e.g.,

Lustgarten v. Commissioner of Social Security, 794 Fed. Appx. 843 (11

Cir. Nov. 15, 2019) (rejecting treating ohysician’s opinion of disabling

limitations because the vast majority of examination notes state that the

plaintiff had no swelling, with normal strength and range of motion, and a

steady gait); Grant v. Social Security Administration Commissioner, □□□

Fed. Appx, 426 (11" Cir. 2018) (noting normal clinical findings, such as

normal gait, range of motion and muscle strength, were inconsistent with an

opinion of disabling functional limitations).

Additionally, the law judge’s finding that the plaintiffs

activities of daily living were inconsistent with disabling limitations

provides good cause to discount the treating physician’s opinion of disabling

functional limitations. See Jarrett v. Commissioner of Social Security, 422 □

Fed. Appx. 869, 873 (11" Cir. 2011) (“We have held that an ALJ does not

12

need to give a treating physician’s opinion considerable weight if evidence

of the claimant’s daily activities contradicts. the opinion.”); Crow v.

Commissioner, Social Security Administration, 571 Fed. Appx. 802, 806-

07 Cir. 2014) (evidence of the plaintiffs daily activities provided good

cause to discount the treating physician's opinion). The law judge explained

(Tr. 630):

The claimant’s overall allegations of disability in

the relevant period are further undermined by her

report of daily activities performed therein, many

of which are inconsistent with disability. On a

function report completed during the relevant

period, the claimant indicated that she could

prepare her own l-course meals; perform

housework such as light dusting, doing the

laundry, and light picking-up around the house;

leave her home to run errands, perhaps 4-5 times

per week; go out alone; drive a car; shop in stores

and by computer; handle money without issue;

indulge hobbies such as watching television,

playing video games, surfing the web, and taking

her son to amusement parks .... She also indicated

that she regularly made trips to her parents’ house

(Exhibit 7E). .

On the other hand, the law judge did not reject that the plaintiff

had significant impairments; to the contrary, the law judge concluded (Tr.

630):

[T]he evidence of record does support and allow

the conclusion that the claimant experienced a □

number of impairments and symptoms

13 .

significantly restrictive of her ability to work

during the relevant period, such that, during that

time; she could perform only [a limited range of

sedentary work] ....

Thus, the law judge only rejected the allegations of extreme functional

limitations.

The plaintiff asserts several challenges to the law judge

discounting Dr. Guirguis’s opinion of disabling limitations. None is

persuasive. ,

The plaintiff argues that the law judge failed to evaluate

Guirguis’s opinion using the factors set forth in 20 C.F.R. 404.1527(c) (Doc.

14, p. 15).° Notably, the law judge “is not required to explicitly address each

of [the § 404.1527] factors” in the decision. Lawton v. Commissioner of

Social Security, 431 Fed. Appx. 830, 833 (11" Cir. 2011). Regardless, the

law judge's decision encompasses those factors.

Thus, the law judge identified Dr. Guirguis as a treating

physician, so he knew of Dr. Guirguis’s treatment relationship with the

plaintiff and, accordingly, evaluated his opinion under the good cause

5These factors include whether the doctor examined the claimant; the doctor’s

relationship with the claimant; the medical evidence supporting the doctor’s opinion; the

consistency of the doctor’s opinion compared with the record as a whole; and the doctor’s

specialization. § 416.927(c).

14

standard. Additionally, it is apparent that the law judge knew of Dr.

Guirguis’s specialty as a pain physician based on the records and treatment

modalities (see Tr. 632). Moreover, the law judge expressly considered the

consistency of Dr. Guirguis’s opinion with his treatment notes and the

overall record (Tr. 634). Therefore, the contention that the law judge failed

to consider the 404.1527(c) factors is meritless.

The essence of the plaintiff's argument is that the law judge

improperly weighed these factors (see Doc. 14, pp. 9-10, 12). Thus, she

contends that Dr. Guirguis is a board-certified specialist who had “the best

foundation for providing opinions about - ithe plaintiff's] work-related

limitations,” and “the only examining physician who has provided detailed

opinions about work-related limitations, and the only medical source[]

whose opinions are based on medical findings which extend into 2014”

(Doc. 14, pp. 13-14). However, the court is not to reweigh the evidence, but

is limited to determining whether the record as a whole contains sufficient

evidence to permit a reasonable mind to conclude that the claimant is not

disabled. Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11™ Cir. 1983);

Hunter v. Social Security Administration, Commissioner, 808 F.3d 818, 823

(11" Cir. 2015) (“We will not second guess the ALJ about the weight the

treating physician’s opinion deserves so long as he articulates a specific

15

justification for it.”). The law judge has identified such evidence (see supra,

pp. 8-13).

Additionally, the plaintiff quibbles that the law judge

incorrectly characterized Dr. Guirguis’s medical records as “highly

inconsistent” with Dr. Guirguis’s opinion of the plaintiffs functional

capacity. Specifically, the plaintiff argues (Doc. 14, p. 16):

[T]his characterization is disingenuous where the

Records show .., that Dr. Guirguis obtained

multiple MRIs with significant objective findings

.. and [Dr. Guirguis] performed multiple

examinations showing tenderness, spasm and

restricted range of motion in the thoracic and

lumbar spines ....

This argument is unavailing. First, the law judge did not state that the MRIs

were “highly inconsistent”; rather, he specified “Dr. Guirguis’s own medical

records which ... demonstrate reportedly moderate levels of pain, responsive

to some forms of treatment, in the context of physical examinations

indicative of fairly modest musculoskeletal and/or neurological dysfunction”

were highly inconsistent with disabling functional limitations (Tr. 634).

(emphasis added). The law judge could reasonably make that determination

because, as the Commissioner shows, the majority of Dr. Guirguis’s

treatment records demonstrate the plaintiff had a normal gait, normal

strength, normal range of motion and/or normal sensory findings (Doc. 15,

16

pp. 6-7). The law judge, furthermore, acknowledged that “objective

examinations of record typically demonstrated ... lumbar spasm and spinal

tenderness to palpitation,” but he could reasonably conclude that those

relatively modest findings did not support “allegations of highly-

functionally-disruptive pain” (Tr. 631).

The plaintiff argues further that the law judge “misread[] ... the

MRI reports” when he stated that “radiology reports postdating the relevant

period suggest that the claimant’s condition actually tends toward stability

over time” (Doc. 14, p. 17). The plaintiff has not shown that the law judge’s

Statements regarding MRI findings during the post-insured period are

inaccurate (compare Tr. 580 with Tr. 1 145, 1352).

Rather, the plaintiff emphasizes Dr. Guirguis’s opinion that the

plaintiff's February 2014 lumbar MRI is worse than her 2011 MRI (Doc. 14,

p. 18; see Tr. 593). This is a comparison of MRIs from a different time

period; the law judge was referring to post-insured period MRIs (see Tr.632)

(comparing 2014 and 2016 MRIs). In all events,.whether the MRIs from the

post-insured period showed stability of the plaintiff's back condition is

irrelevant to the primary reasons the law judge gave for discounting Dr.

Guirguis’s opinion of disabling limitations during the pertinent time period,

namely, the plaintiff's overall non-disabling findings on physical

17

examination; typical reports of only moderate pain and corresponding

responsiveness to treatment; and the plaintiff's varied activities of daily

living (see Tr. 634). Therefore, any purported error in this regard is

harmless, as substantial evidence remains in support of the law judge’s

determination to discount Dr. Guirguis’s opinion of disabling limitations.

See Diorio v. Heckler, 721 F.2d 726, 728 (11 Cir. 1983) (erroneous

statements of fact by the law judge were harmless when the law judge’s □□

decision was otherwise supported by substantial evidence).

Moreover, the plaintiff argues (Doc. 14, p. 19):

Despite all of this compelling objective test

evidence, which the ALJ seems to acknowledge at

least to some degree, the ALJ does not adequately

explain[] why the lumbar herniation and

degeneration that involves nerve roots is not a

medical condition that corroborates Dr. Guirguis’

assertions that [the plaintiff] suffers from chronic,

severe low back pain radiating into her right leg

from these conditions that is the basis for his

assessments about her limitations (see TR 594). It

is submitted that the ALJ has again engaged in his

own interpretation of the medical records ....

This contention is meritless. “The task of determining □□

claimant’s ability to work is within the province of the ALJ, not a doctor,”

Cooper v. Astrue, 373 Fed. Appx. 961, 962 (11" Cir. 2010), and “while a

physician’s opinion on the matter will be considered, it is not dispositive.”

18

Beegle v. Social Security Administration Commissioner, 482 Fed. Appx.

483, 486 (11" Cir. 2012). .

Therefore, the law judge evaluates a physician’s opinion in light

of the other evidence presented. 20 C.F.R 404.1512(b)(2), 404.1513,

404.1527, 404.1545; see, e.g., Green v. Social Security Administration, 223

Fed. Appx. 915, 922-23 (11" Cir. 2007) (rejecting the contention that the

law judge played doctor in discounting opinion of treating physician in part

due to treatment notes inconsistent with the opinion). Here, there was ample

evidence in the record for the law judge’s determination of the plaintiff's

residual functional capacity (see Tr. 630-34). Furthermore, although a

plaintiff may identify evidence that is consistent with, or supports disability,

“the mere fact that the record may support a contrary conclusion is □□□

enough to justify a reversal of the administrative findings.” Adefemi v.

Ashcroft, supra, 386 F.3d at 1027; see Dyer v. Barnhart, 395 F.3d 1206, 1210

(11" Cir. 2005) (deference to the law judge’s decision if it is supported by

substantial evidence even though the evidence may preponderate against it).

Moreover, the plaintiff argues that the opinions of the non-

examining reviewing physicians that she could perform light work are

“minimally probative opinions [that] do not qualify to adequately contradict

the opinions by Dr. Guirguis” (Doc. 14, p. 19). This contention is meritless

19

because the law judge did not discount Dr. Guirguis’s opinion of extreme

limitations on this basis (see Tr. 634). To the contrary, the law judge gave

little or no weight to those opinions (Tr. 633-34),

Additionally, the plaintiff nitpicks that the law judge

erroneously stated that Dr. Burchett’s report contained “opinions,” because

Dr. Burchett did not opine on the plaintiff s functional limitations (see Doc.

14, p. 20). The law judge was referring to the portion of Dr. Burchett’s report

titled “Impression[s]” (Tr. 350), which is a term that is regularly associated

with a physician’s opinion. Regardless, the law judge’s point was that Dr.

Burchett’s findings on physical examination were not consistent with

disabling functional limitations, and that finding is supported by substantial

evidence (see Tr. 348-52).°

In sum, the law judge stated good cause for discounting. Dr.

Guirguis’s opinion of debilitating functional limitations, and that

determination is supported by substantial evidence. See Hargress v. Social

Security Administration, Commissioner, supra, 883 F.3d at 1302; Lewis v.

Callahan, 125 F.3d 1436, 1440 (11" Cir. 1997) (“Substantial evidence □□

®The plaintiff also argues, inconsistently, that the law judge disregarded Dr.

Burchett’s opinion that the plaintiff cannot sit or stand for longer periods. However, as

the plaintiff states, Dr. Burchett “did not complete any form or give specific work-related

limitations” (Doc. 14, p. 20). Furthermore, that comment is too vague to be probative of

the plaintiffs work limitations.

20

more than a scintilla and is such relevant evidence as a reasonable person

would accept as adequate to support a conclusion.”).

Furthermore, the plaintiff has not identified evidence which

compelled the law judge to accept Dr. Guirguis’s opinion of extreme

functional limitations. See Adefemi v. Ashcroft, supra, 386 F.3d at 1027

(“findings of fact made by administrative agencies ... may bereversed...only

when the record compels a reversal; the mere fact that the record may support

a contrary conclusion is not enough to justify a reversal of the administrative

findings”). Therefore, the plaintiff's challenge to the weight given to Dr.

Guirguis’s opinion of disabling limitations fails.

IW,

The plaintiff's second argument is that her “claim should be

remanded for a de novo administrative hearing with a different ALJ”

pursuant to the Supreme Court’s ruling in Lucia v. Securities and Exchange

Commission, _—»US. __, 138 S.Ct. 2044 (2018) (Doc. 14, p. 21)

(emphasis omitted).

In Lucia, the Supreme Court ruled that administrative law

judges overseeing hearings for the Securities and Exchange Commission are

subject to the Appointments Clause of the Constitution, which requires

appointment to their positions by the President, a court of law, orthe head

, 21

the department. Id. After Lucia, the Social Security Administration applied

this ruling to its administrative law judges and, on July 26, 2018, the Acting

Commissioner approved the administrative law judge appointments as her

own. The plaintiff argues that the adjudication of her claim violated her

constitutional rights because the law judge was not at that time appointed

consistent with that provision (Doc. 14, pp. 21-25).

The defendant responds that the plaintiff forfeited this

contention because Lucia held that a party “who makes a timely challenge

to the constitutional validity of the appointment of an officer who adjudicates

his case is entitled to relief” id. at 2055, and “at no point in the administrative

process ... did Plaintiff ever present the argument that the law judges are

inferior officers under the Appointments Clause” (Doc. 15, p. 14). The

plaintiff concedes that she did not raise this issue at the administrative level

but argues that she should be excused from this requirement because it would __

have been futile to raise it at that point (Doc. 14, pp. 23-24),

As recounted in the defendant’s brief, cases too numerous to list

have rejected attacks on the validity of the law judge’s appointment under

the Appointments Clause where the claimant failed to assert a timely

constitutional challenge at the administrative level (see Doc. 15, pp. 14-22).

This includes the holdings of courts in this district. See, e.g., Valle-Roman

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v. Commissioner of Social Security, No. 6:18-0v-l 158-ORL-TBS, 2019 □□

1281171 at *2 (M.D. Fla. Mar. 20, 2019); Gary v. Commissioner of Social

Security, No. 8:17-cv-2710-T-JSS, 2018 WL 7436496 at *6 (M.D. Fla. Nov.

30, 2018). Moreover, since the filing of the defendant’s brief, courts

continue to hold that the failure to raise this issue in a timely manner forfeits

the contention. See, e.g., Burr v. Commissioner of Social Security, No.

5:18-cv-518-OC-18PRL, 2019 WL 3821572 at *3 (M.D. Fla. May 17, 2019),

report and recommendation adopted, No. 5:18-cv-518-OC-18PRL, 2019 WL

3817486 (M.D. F la. Aug. 14, 2019). Zayas 0/b/o J.X.A. v. Commissioner of

Social Security, No. 8:18-cv-2918-T-MAP, 2020 WL 487153 at *6 (M.D.

_ Fla. Jan. 30, 2020).

The plaintiff argues that she should be excused for failing to

raise this issue because it would have been futile, as the law judge lacked

authority to act on this matter (Doc. 14, p. 24). -Notably, courts within this

district have rejected the plaintiff's futility argument. See Burr v.

Commissioner of Social Security, supra, 2019 WL 3821572 at *3; Gagliardi

v. Social Security Administration, No. 18-cv-62106, 2020 WL 966595 at *4

(S.D. Fla. Feb. 28, 2020).

It is similarly unpersuasive here. Thus, the plaintiff has not

identified any reason why she could not have asserted her challenge to

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constitutionality of the proceeding at the administrative level. See 20 C.F.R.

404.940 (requiring that any request to disqualify the ALJ must be made to

the ALJ at the “earliest opportunity” and, if not resolved, then the objection

concerning the ALJ is to be presented to the Appeals Council). She simply

did not do so. Therefore, the plaintiff's post hoc rationale that it would have

been futile does not excuse her failure to timely raise the issue. Accordingly,

the plaintiff's argument based on the Appointments Clause is rejected as

untimely. .

Moreover, the contention, even if timely, would be meritless.

Thus, the Acting Commissioner, on July 26, 2018, as the plaintiff

acknowledges (Doc. 14, p. 23), approved the appointments as her own. The

law judge issued his decision on July 27, 2018. Therefore, at the time the

law judge issued his opinion, the law judge seemingly had been properly

appointed by the head of the department. The plaintiff makes no argument

that, when the law judge’s decision was issued, the deficiency had not been

corrected.

. V.

It is, therefore, upon consideration, °

ORDERED:

That the Commissioner’s decision is hereby AFFIRMED.

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The Clerk shall enter judgment in accordance with this Order and CLOSE

this case,

DONE and ORDERED at Tampa, Florida, this 174 day of

March, 2020.

THOMAS G. WILSON

. UNITED STATES MAGISTRATE JUDGE

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