# Cardoso v. Commissioner of Social Security

> District Court, M.D. Florida · March 17, 2020

URL: https://www.frixlaw.com/law-library/cases/10104899

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** March 17, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10104899

## How later opinions describe it (automated extraction)

- 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

## Opinion text

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
22

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
23

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.
24

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

25

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10104899. Public record. Not legal advice.