Strother v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

RICK STROTHER,

Plaintiff,

v. Case No: 8:19-cv-1365-T-36AAS

ANDREW SAUL, Commissioner,

Social Security Administration,

Defendant.

___________________________________/

ORDER

This matter comes before the Court on Plaintiff Rick Strother’s Complaint for review of

the final decision of the Commissioner of Social Security (“Commissioner”) denying his claim for

benefits. Doc. 1. Magistrate Judge Amanda Sansone submitted a Report and Recommendation

(“R&R”), recommending that the Court reverse and remand the Commissioner’s decision. Doc.

28. The Commissioner filed objections to the R&R (Doc. 29) (the “Objection”), and Plaintiff filed

a response to the Objection (Doc. 30).

In the R&R, the Magistrate Judge recommends that the Court reverse and remand the

Commissioner’s decision that the Plaintiff is not disabled because the Commissioner’s decision is

not supported by substantial evidence, the Administrative Law Judge (“ALJ”) failed to resolve

apparent conflicts in the testimony of the vocational expert and the Dictionary of Occupational

Titles (“DOT”), and the ALJ failed to properly consider and weigh the medical evidence. Doc. 28.

On remand, the R&R also concludes the ALJ should reconsider the opinion of Dr. Hirshorn

regarding Plaintiff’s lower limb impairment and whether Plaintiff’s back pain and limb fracture

amounted to severe impairments at step two. Id. In the Objection, the Commissioner contends

substantial evidence supports the ALJ’s decision and argues the ALJ did not commit reversible

error. Doc. 29. Plaintiff responds, arguing the Magistrate Judge’s recommendations are correct,

and requests this Court adopt the R&R. Doc. 30.

After careful consideration of the Commissioner’s Objection, Plaintiff’s response, the

Report and Recommendation of the Magistrate Judge, in conjunction with an independent de novo

review of the record, the Magistrate Judge’s Report and Recommendation should be adopted,

confirmed, and approved, except to the extent noted below, and the decision of the Commissioner

will be reversed and remanded.

I. BACKGROUND

On December 7, 2016, Plaintiff filed an application for a period of disability and disability

insurance benefits.1 R. 545, 420. He alleges he became disabled in January 2010 due to “Bipolar

I, ADHD, schizoaffective disorder, steel plate in his right leg, tonsils removed at young age,

allergies.” R. 420–21. The alleged onset date was amended to February 11, 2014. R. 46. The

claims were denied on May 9, 2017 and denied again on reconsideration on April 9, 2018. R. 449.

On November 7, 2018, Plaintiff and an impartial vocational expert (“VE”) testified at a hearing

before Administrative Law Judge Elvin Torres. R. 42–69. On December 19, 2018, the ALJ issued

a written decision finding that Plaintiff has the severe impairments of bipolar disorder, unspecified

personality disorder, and attention deficit hyperactivity disorder (“ADHD”). R. 21.

In his decision, the ALJ found that Plaintiff has the residual functional capacity (“RFC”)

to perform “a full range of work at all extertional levels.” R. 23. However, the ALJ found the

following non-exertional limitations: Plaintiff “is limited to understanding and carrying out no

1 Plaintiff previously filed for benefits in February 2012, alleging an onset date of August 31, 2009.

An ALJ issued an unfavorable decision on February 10, 2014, which was affirmed on appeal. R.

395–404; 434–47.

more than simple, routine, repetitive unskilled tasks with basic decision-making, and adjustment

to simple changes in the work setting, and having occasional interaction with others.” Id.

Additionally, Plaintiff must avoid extreme heat. Id.

The ALJ found that Plaintiff’s statements concerning the intensity, persistence, and

limiting effects of his symptoms are not entirely consistent with the medical evidence and other

evidence of record. R. 24. The ALJ utilized VE testimony at steps four and five. R. 33–34. With

the assistance of the VE, the ALJ found that Plaintiff could perform past relevant work as a

houseman/cleaner. R. 33. The ALJ made an alternative step-five finding that there are other jobs

existing in the national economy that Plaintiff could perform considering Plaintiff’s age, education,

work experience, and RFC, in conjunction with the Medical-Vocational Guidelines. R. 33–34.

Based on these findings, the ALJ found Plaintiff was not disabled. R. 35. On April 10, 2019, the

Appeals Council denied Plaintiff’s request for review, making the ALJ’s decision final. R. 1–6.

Plaintiff seeks review of the Commissioner’s final decision. Doc. 1. The parties submitted

a Joint Memorandum. Doc. 26. On April 27, 2020, the Magistrate Judge issued an R&R

recommending that the Commissioner’s decision be reversed. Doc. 28. Relevant to the appeal, the

Magistrate Judge found the ALJ failed to resolve inconsistencies between the VE’s testimony and

the DOT (Doc. 28 at 5–9) and failed to state the weight assigned to Dr. Kelly A. Gorman (Doc. 28

at 10–11).2 The Commissioner filed the Objection to the R&R (Doc. 29), to which the Plaintiff

responded in opposition (Doc. 30).

2 Plaintiff also claimed error in the ALJ’s handling of the medical opinions of treating physician

Dr. Gimon and state agency consultants Dr. Thibodeau and Dr. Hirshorn. Doc. 26 at 35–39. The

Magistrate Judge found the ALJ properly considered and weighed Dr. Thibodeau’s opinion and

articulated adequate reasons for giving little weight to Dr. Gimon’s opinions. Doc. 28 at 11–14.

Regarding Dr. Hirshorn, the Magistrate Judge concluded that on remand the ALJ should consider

Dr. Hirshorn’s opinion that Plaintiff’s lower limb impairment is severe. Id. at 12. Plaintiff appealed

At the administrative hearing before the ALJ, Plaintiff testified he works part-time doing

building maintenance for a grocery store. R. 48. His prior work included working as a host at a

restaurant, apartment maintenance/houseman for time share companies, and driving a van for an

amusement park. R. 49–52.

He testified he suffers from PTSD, ongoing social phobia, elevated bipolar 1, and high

anxiety. R. 54. His anxiety has gotten worse with a fear of people killing him. R. 53. He has

difficulty sleeping and has had several nervous breakdowns and suicide attempts. Id. He has

decreased his work because of problems with concentration. Id.

Upon questioning by his counsel, Plaintiff testified he has a terrible memory and racing

thoughts. R. 58. He only sleeps three to four hours per night. Id. He avoids confrontation with

people. He is nervous, and has difficulty concentrating. R. 59. He is afraid to be around people for

fear they are going to hurt him. Id. Dr. Gimon told him he has agora social phobia and that his

conditions are getting worse. R. 60. Plaintiff can follow simple instructions, but sometimes has

difficulty understanding. Id.

Dr. Vonnie Ross, a VE, testified at the hearing. The VE classified Plaintiff’s past work as

a host to be more akin to a waiter, which is light exertional work. R. 64. The VE classified the

maintenance worker position as a construction worker 1, which the VE described as a “jack of all

trades.” Id. The maintenance position Plaintiff did as a houseman/cleaner is heavy exertional. The

van driver position is medium exertional. Id. The ALJ posed the following hypothetical question

to the VE:

If a hypothetical individual that is not limited to all levels of exertion, but

is limited to understanding and carrying out no more than simple routine

sedentary unskilled tasks with occasional decision making, occasional

the ALJ’s failure at step two to find his back problems and lower limb fracture to be severe

impairments, which the Magistrate Judge also recommended should be reconsidered upon remand.

changes in the work setting and occasional interaction with others and

avoidance of extreme heat temperature, with those premises could such a

hypothetical person [perform] any of the claimant’s past occupations as

actual (sic) performed or as generally performed in the economy?

Tr. 65 (emphasis added). In response, the VE testified that Plaintiff’s past relevant work as a

houseman, which is basically a cleaner, would be a job the hypothetical individual could perform.

R. 65. The job of houseman/cleaner is considered heavy exertional under the DOT. See DOT

#323.687-018 Housecleaner (Strength: Heavy Work).3 Yet, the hypothetical question limited the

individual to “sedentary” work,4 which eliminates light, medium, or heavy exertional positions.

When asked about other jobs available in the national economy given the same hypothetical

question posed, the VE identified hand packer, assembler, and machine tender, all of which are

medium exertional positions. R. 65–66. If the hypothetical individual would be off task for twenty

percent of the day, the individual would not be able to maintain employment. R. 66. The VE

testified her opinions are consistent with the DOT except for the off-task opinion, which is based

on the VE’s experience. R. 66.

II. LEGAL STANDARD

A. Review of a Report and Recommendation

Federal Rule of Civil Procedure 72(b)(2), in pertinent part, provides that “a party may serve

and file specific written objections to the proposed findings and recommendations” of a magistrate

3 STRENGTH: Heavy Work - Exerting 50 to 100 pounds of force frequently (Frequently: activity

or condition exists from 1/3 to 2/3 of the time) and/or 10 to 20 pounds of force constantly

(Constantly: activity or condition exists 2/3 or more of the time) to move objects. Physical demand

requirements are in excess of those for Medium Work. HOUSECLEANER, DICOT 323.687-018.

4 The Regulations define “sedentary work” as work “lifting no more than 10 pounds at a time and

occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a

sedentary job is defined as one which involves sitting, a certain amount of walking and standing

is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required

occasionally and other sedentary criteria are met.” 20 C.F.R. § 404.1567(a).

judge. The district judge “shall make a de novo determination of those portions of the report or

specified proposed findings or recommendations to which objection is made.” 28 U.S.C. §

636(b)(1); Jeffrey S. v. State Bd. of Educ. of State of Ga., 896 F.2d 507, 512 (11th Cir. 1990). The

district judge may accept, reject, or modify, in whole or in part, the Report and

Recommendation. Fed. R. Civ. P. 72(b)(3). The district judge may also receive further evidence

or recommit the matter to the magistrate judge with further instructions. Id.

B. Review of the Commissioner’s Decision

The Court reviews the Commissioner’s decision to determine if it is supported by

substantial evidence and is based upon proper legal standards. Crawford v. Comm’r of Soc. Sec.,

363 F.3d 1155, 1158 (11th Cir. 2004). “Substantial evidence is more than a scintilla and is such

relevant evidence as a reasonable person would accept as adequate to support a conclusion.” Id.

(internal quotation marks omitted). Where the Commissioner’s decision is supported by substantial

evidence, the Court must affirm, even if the reviewer would have reached a contrary result as

finder of fact, and even if the reviewer finds that the evidence preponderates against the

Commissioner’s decision. 42 U.S.C. § 405(g); Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th

Cir. 2004) (“If the Commissioner’s decision is supported by substantial evidence, we must affirm,

even if the proof preponderates against it.”). The reviewing court “may not decide the facts anew,

reweigh the evidence, or substitute [its own] judgment for that of the [Commissioner].” Id.

C. An ALJ’s Five-Step Disability Analysis

The Social Security Administration has established a five-step sequential evaluation

process for determining whether an individual is disabled. See 20 C.F.R. § 416.920(a)(4). The

Eleventh Circuit has explained this process as follows:

In order to receive disability benefits, the claimant must prove at step one that he is

not undertaking substantial gainful activity. At step two, the claimant must prove

that he is suffering from a severe impairment or combination of impairments. At

step three, if the claimant proves that his impairment meets one of the listed

impairments found in Appendix 1, he will be considered disabled without

consideration of age, education, and work experience. If the claimant cannot prove

the existence of a listed impairment, he must prove at step four that his impairment

prevents him from performing his past relevant work. At the fifth step, the

regulations direct the Commissioner to consider the claimant’s residual functional

capacity, age, education, and past work experience to determine whether the

claimant can perform other work besides his past relevant work.

Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001). The plaintiff has the burden of proof on

the first four steps; the Commissioner carries the burden on the fifth step. Wright v. Comm’r of

Soc. Sec., 327 F. App’x 135, 136-37 (11th Cir. 2009). If it is determined at any step in the analysis

that the claimant is disabled or not disabled, the evaluation does not proceed. See 20 C.F.R. §

416.920(a)(4).

III. DISCUSSION

A. VE Testimony and the DOT

In the R&R, the Magistrate Judge found error in the ALJ’s failure to resolve apparent

conflicts between the VE testimony and the DOT. Additionally, the Magistrate Judge found that

the hypothetical question posed to the VE failed to include all limitations referenced in the RFC.

In the Objection, the Commissioner argues there was no error because the ALJ was permitted to

rely on an independent review of the DOT in reaching his step four finding that Plaintiff can

perform his past relevant work as a houseman/cleaner. Because the ALJ was not obligated to use

VE testimony at step four and because the ALJ did not exclusively rely on the VE testimony, the

Commissioner urges any error in the hypothetical question posed to the VE is, at most, harmless.

The Commissioner also argues that the R&R fails to acknowledge that it was Plaintiff’s burden at

step four to show he was incapable of performing his past relevant work.

It is undisputed that there was error in the hypothetical question. The hypothetical question

included a limitation for sedentary work and the position identified by the VE was as a

houseman/cleaner, which is a heavy exertional position. Notwithstanding the VE’s testimony that

her opinion is consistent with the DOT, it was not, and a conflict existed.

The Commissioner responds that the error in the hypothetical question was harmless

because the ALJ was not required to obtain VE testimony at step four and he relied upon an

independent review of the DOT to reach his conclusion that Plaintiff could perform his past

relevant work. However, the ALJ engaged the assistance of the VE at steps four and five. Review

of the decision reveals the ALJ specifically relies on the VE, citing to the VE’s testimony that the

hypothetical individual would be able to perform the past relevant work of a houseman/cleaner. R.

33. The VE’s testimony conflicted with the DOT because a houseman/cleaner is a heavy exertional

position and the hypothetical question limited the individual to sedentary work. The ALJ failed to

resolve this conflict.

Social Security Ruling (SSR) 00-4P clarifies the standards for use of VEs who provide

testimony at administrative hearings. SSR 00-4P instructs that “before relying on VE . . . evidence

to support a disability determination or decision, [ALJs] must: Identify and obtain a reasonable

explanation for any conflicts between occupational evidence provided by VEs . . . and information

in the [DOT].” Policy Interpretation Ruling: Titles II & XVI: Use of Vocational Expert &

Vocational Specialist Evidence, & Other Reliable Occupational Info. in Disability Decisions, SSR

00-4P, 2000 WL 1898704, at *1 (S.S.A. Dec. 4, 2000).5 The ALJ is obligated to explain in the

5 The Eleventh Circuit has stated that “Social Security Rulings are agency rulings published under

the Commissioner’s authority and are binding on all components of the Administration. Even

though the rulings are not binding on us, we should nonetheless accord the rulings great respect

and deference....” Klawinski v. Comm’r of Soc. Sec., 391 F. App’x 772, 775 (11th Cir. 2010)

(unpublished) (citations omitted).

decision “how any conflict that has been identified was resolved.” Id. Although the Commissioner

contends that the ALJ was not obligated to use VE testimony at step four, the fact is he did. SSR

00-4P’s requirements for an ALJ to resolve conflicts between the DOT and VE testimony are not

limited to a step five finding.6 See id. (explaining that VEs are used at steps four and five). And,

in relying on VE testimony at step four, as the ALJ did here, he was obliged to identify and obtain

a reasonable explanation for any conflicts between the VE’s testimony and the DOT and explain

in the decision how that conflict was resolved.

Further, as noted in the R&R, the hypothetical question posed did not include all the

limitations contained in the RFC. The RFC limited Plaintiff to “understanding and carrying out

no more than simple, routine, repetitive unskilled tasks with basic decision-making.” R. 23

(emphasis added). The hypothetical question to the VE did not include a limitation for repetitive

tasks. Additionally, the hypothetical included “occasional” decision making, whereas the RFC

limited Plaintiff to “basic” decision making.” The RFC limited Plaintiff to “simple changes in the

work setting.” The hypothetical question referenced occasional changes. When the ALJ utilizes

the testimony of a VE, the ALJ must pose a hypothetical question which comprises all the

claimant’s impairments for a VE’s testimony to constitute substantial evidence. Ingram v. Comm’r

of Soc. Sec., 496 F.3d 1253, 1270 (11th Cir. 2007) (citation omitted). The hypothetical did not do

so here as discussed in the R&R. The Commissioner does not address in the Objection this

additional finding in the R&R.

6 The Commissioner’s argument that the Magistrate Judge incorrectly relied on Washington v.

Commissioner of Social Security, 906 F.3d 1353 (11th Cir. 2018) is unpersuasive. SSR 00-4P

requires that an adjudicator, when relying on VE testimony as the ALJ did here, “must: Identify

and obtain a reasonable explanation for any conflicts . . . and Explain . . . how any conflict that

was identified was resolved.” SSR 00-4P, 2000 WL 1898704, at *1 (emphasis added). The

Regulations do not limit this obligation to step five.

The Commissioner is correct that Plaintiff bears the burden at step four. See Doughty 245

F.3d at 1278. But substantial evidence must still support the ALJ’s step four finding, and on this

hearing record, it does not. While the ALJ asked the question to the VE if his testimony was

consistent with the DOT, it is clear from review of the transcript that there was a conflict,

notwithstanding the VE’s testimony to the contrary. The VE’s testimony that a person limited to

sedentary tasks could perform the houseman/cleaner position conflicts with the DOT. The R&R

notes it is unclear whether the ALJ misspoke or whether a mistake occurred in the transcription.7

Regardless, the ALJ was in the best position to correct the error in the hearing transcript, and the

failure to do so resulted in a conflict unresolved by the Commissioner. Given that unresolved

conflict and the other inconsistencies between the RFC and the hypothetical, the Court is unable

to determine whether substantial evidence supports the ALJ’s step four finding, warranting

remand.

B. Medical Opinion of Dr. Gorman

The Magistrate Judge found the ALJ committed reversible error in failing to mention or

state the weight assigned to the opinions of consultative psychologist Kelly Gorman, Psy.D. Doc.

28 at 11. The Commissioner responds that any error in the ALJ’s failure to consider the opinions

7 The error in the testimony or the transcript can be analogized to cases in which portions of the

hearing transcript are missing or inaudible. See, e.g., Ruybal v. Saul, No. 8:18-CV-2273-T-SPF,

2020 WL 1502865, at *4 (M.D. Fla. Mar. 30, 2020) (remanding because substantial evidence did

not support ALJ’s step four finding where ALJ relied on VE testimony but the transcript did not

include the VE’s testimony); Edwards v. Astrue, No. 09-2120-CM-GBC, 2010 WL 2787847, at

*4 (D. Kan. June 30, 2010) (recommending remand because the portion of hearing transcript of

VE testimony related to steps four and five was missing) report and recommendation adopted,

2010 WL 2787833 (D. Kan. July 15, 2010); Bailey v. Heckler, 576 F. Supp. 621, 624 (D. D.C.

1984) (remanding where record was incomplete on a dispositive factual issue because there was

an inadequate basis on which the court could review the ALJ’s decision).

of Dr. Gorman is harmless because Dr. Gorman’s opinions lacked sufficient detail to translate into

functional limitations.

Plaintiff saw Dr. Gorman on May 29, 2015. R. 1195. An in-person examination was

conducted. R. 1202. Dr. Gorman noted Plaintiff was highly anxious, pacing, with shaking hands.

R. 1201. Plaintiff asked Dr. Gorman if he was going to hurt him. Id. Dr. Gorman opined that

Plaintiff has bipolar disorder and ADHD by history. R. 1195–96. Dr. Gorman opined Plaintiff

experienced occasional and social impairment with reduced reliability and productivity. R. 1197.

Dr. Gorman diagnosed Plaintiff with depressed mood, anxiety, suspiciousness, chronic sleep

impairment, mild memory loss, circumstantial or stereotyped speech, difficulty in understanding

complex commands, impaired abstract thinking, disturbances of motivation and mood, difficulty

in maintaining effective work and social relationships, difficulty in adapting to stressful

circumstances including work or work-like setting, suicidal ideation, and impaired impulse

control. R. 1200. In his decision, the ALJ does not mention or weigh Dr. Gorman’s opinions, but

only notes that Dr. Gorman determined that Plaintiff’s bipolar disorder was not aggravated by

basic training. R. 26.

In considering whether a claimant is disabled, an ALJ shall consider all medical opinions

in a claimant’s case record together with the rest of the relevant evidence received. 20 C.F.R. §

404.1527(b).8 In so doing, the ALJ is tasked with evaluating every medical opinion received

regardless of its source.” 20 C.F.R. § 404.1527(c). In this Circuit, “the ALJ must state with

particularity the weight given to different medical opinions and the reasons therefor.” Winschel v.

Comm’r of Soc. Sec., 631 F.3d 1176, 1179 (11th Cir. 2011) (citing Sharfarz v. Bowen, 825 F.2d

8 For claims filed before March 27, 2017, the rules in section 404.1527 apply. See 20 C.F.R. §

404.1527.

278, 279 (11th Cir. 1987) (per curiam)). “In the absence of such a statement, it is impossible for a

reviewing court to determine whether the ultimate decision on the merits of the claim is rational

and supported by substantial evidence.” Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir. 1981).

When the ALJ fails to “state with at least some measure of clarity the grounds for his decision,”

the Eleventh Circuit will decline to affirm “simply because some rationale might have supported

the ALJ’s conclusion.” Owens v. Heckler, 748 F.2d 1511, 1516 (11th Cir. 1984) (per curiam).

“Even if it is possible that the ALJ considered and rejected [Dr. Gorman’s] medical opinions,

‘without clearly articulated grounds for such a rejection, we cannot determine whether the ALJ’s

conclusions were rational and supported by substantial evidence.’” Himes v. Comm’r of Soc. Sec.,

585 F. App’x 758, 765 (11th Cir. 2014) (quoting Winschel, 631 F.3d at 1179)). The ALJ’s failure

to mention or state the weight assigned to Dr. Gorman’s opinions is reversible error.

C. Step Two Finding and the Medical Opinion of Dr. Hirshorn

The Commissioner contends that remand is not warranted for further step-two findings.

Doc. 29 at 8–9. The Court agrees. Plaintiff does not respond to the Commissioner’s argument on

this issue. At step two, the ALJ determined that Plaintiff had severe impairments consisting of

bipolar disorder, unspecified personality disorder, and ADHD. R. 21.

The finding of any severe impairment, whether it results from a single severe impairment

or a combination of impairments that together qualify as severe, is enough to satisfy step two.

Jamison v. Bowen, 814 F.2d at 585, 588 (11th Cir. 1987); see Packer v. Comm’r, Soc. Sec. Admin.,

542 F. App’x 890, 892 (11th Cir. 2013) (per curiam) (“[T]he ALJ determined at step two that at

least one severe impairment existed; the threshold inquiry at step two therefore was satisfied”);

Gray v. Comm’r of Soc. Sec., 550 F. App’x 850, 852 (11th Cir. 2013) (claim advances to step three

if any impairment or combination of impairments qualifies as “severe” at step two); Heatly v.

Comm’r of Soc. Sec., 382 F. App’x 823, 824–25 (11th Cir. 2010) (per curiam) (noting that an

ALJ’s failure to identify an impairment as severe, where the ALJ found that the plaintiff suffered

from at least one severe impairment, constituted harmless error and was, in fact, sufficient to meet

the requirements of step two, and additionally noting that nothing requires the ALJ to identify, at

step two, all of the impairments that could be considered severe); see also Tuggerson–Brown v.

Comm’r of Soc. Sec., 572 F. App’x 949, 951–52 (11th Cir. 2014); Sanchez v. Comm’r of Soc. Sec.,

507 F. App’x 855, 857 (11th Cir. 2013). The ALJ found that Plaintiff had at least some severe

impairments and continued the sequential evaluation process considering Plaintiff’s bipolar

disorder, unspecified personality disorder, and ADHD. For these reasons, the Court finds no error

in the ALJ’s step two finding.

The Magistrate Judge additionally recommended the ALJ reconsider the medical opinion

of Dr. Hirshorn that Plaintiff suffered from the severe impairment of fractures of the lower limb.

Doc. 28 at 12. In discussing the opinions of Dr. Hirshorn, the ALJ states:

Steven Hirshorn, M.D., the state agency medical consultant, determined that

the claimant is capable of performing at the medium exertional level. The

[ALJ] afforded this opinion little weight since the claimant’s only treatment

is chiropractic adjustments, at which appointments the claimant exhibits

minimal, if any, limitations. Furthermore, there is no imaging of record to

support the claimant’s allegations and the claimant has reported significant

leisure and work activities.

R. 22 (citations omitted). Thus, the ALJ stated the weight given to Dr. Hirshorn’s opinions and

articulated the reasons for not fully crediting the doctor’s opinions. Although he does not

specifically mention Dr. Hirshorn’s opinion that Plaintiff’s lower limb impairment was severe, it

is clear from the decision that the ALJ considered it. The decision acknowledges Plaintiff’s report

of a metal plate in his thigh but goes on to state that Plaintiff reports being in good overall physical

health and notes that at the hearing, he did not testify as to ongoing physical concerns. R. 21.

Substantial evidence supports the ALJ’s handling of Dr. Hirshorn’s opinions.

IV. CONCLUSION

After careful consideration of the Report and Recommendation of the Magistrate Judge, in

conjunction with an independent de novo examination of the file, the Court is of the opinion that

the Magistrate Judge’s Report and Recommendation should be adopted, confirmed, and approved

in all respects, except as noted above.

Accordingly, it is ORDERED AND ADJUDGED:

1. The Commissioner’s Objections to the United States Magistrate Judge’s Report and

Recommendation (Doc. 29) are overruled, except with regard to the ALJ’s step two finding and

Dr. Hirshorn’s opinion.

2. The Report and Recommendation of the Magistrate Judge (Doc. 28) is adopted,

confirmed, and approved in all respects, except as otherwise noted in this Order and is made a

part of this Order for all purposes, including appellate review.

3. The decision of the Commissioner of Social Security is REVERSED and

REMANDED for further proceedings before the Commissioner.

4. The Clerk is directed to enter judgment in favor of the Plaintiff and, thereafter, to

close this case.

DONE AND ORDERED in Tampa, Florida on September 22, 2020.

Chaken 2 AJ ards Kn Ts pl yd 0.

Charlene Edwards Honeywell

United States District Judge

Copies to:

Counsel of Record and Unrepresented Parties, if any

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