Garcia v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

APRIL GARCIA,

Plaintiff,

v. Case No.: 2:19-cv-877-FtM-MRM

COMMISSIONER OF SOCIAL

SECURITY,

Defendant.

/

OPINION AND ORDER

Plaintiff April Garcia filed a Complaint on December 12, 2019. (Doc. 1).

Plaintiff seeks judicial review of the final decision of the Commissioner of the Social

Security Administration (“SSA”) denying her claim for a period of disability and

disability insurance benefits. The Commissioner filed the transcript of the

administrative proceedings (hereinafter referred to as “Tr.” followed by the

appropriate page number), and the parties filed a joint memorandum detailing their

respective positions. (Doc. 22). For the reasons set forth herein, the decision of the

Commissioner is AFFIRMED pursuant to § 205(g) of the Social Security Act, 42

U.S.C. § 405(g).

I. Social Security Act Eligibility

The law defines disability as the inability to do any substantial gainful activity

by reason of any medically determinable physical or mental impairment that can be

expected to result in death or that has lasted or can be expected to last for a

continuous period of not less than twelve months. 42 U.S.C. §§ 416(i), 423(d)(1)(A),

1382c(a)(3)(A); 20 C.F.R. §§ 404.1505, 416.905. The impairment must be severe,

making the claimant unable to do her previous work or any other substantial gainful

activity that exists in the national economy. 42 U.S.C. §§ 423(d)(2), 1382c(a)(3); 20

C.F.R. §§ 404.1505 - 404.1511, 416.905 - 416.911. Plaintiff bears the burden of

persuasion through step four, while the burden shifts to the Commissioner at step

five. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987).

II. Procedural History

Plaintiff filed a claim for a period of disability and disability insurance benefits

on March 13, 2017.1 (Tr. at 15). Plaintiff alleged a disability onset date of October

17, 2016. (Id.). Plaintiff’s claim was denied at the initial level and upon

reconsideration. (Id.). Plaintiff requested an administrative hearing, held on

September 20, 2018, before Administrative Law Judge (“ALJ”) Ryan Johannes. (Id.

at 15, 35). The ALJ issued an unfavorable decision on January 31, 2019. (Id. at 15-

26). On October 28, 2019, the Appeals Council denied Plaintiff’s request for review.

(Id. at 1-3). Plaintiff then filed her Complaint with this Court on December 12, 2019,

(Doc. 1), and the parties consented to proceed before a United States Magistrate

Judge for all purposes, (Docs. 13, 16). The matter is, therefore, ripe.

1 The SSA revised the rules regarding the evaluation of medical evidence and

symptoms for claims filed on or after March 27, 2017. See Revisions to Rules

Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 5844-01, 5844 (Jan. 18,

2017). The new regulations, however, do not apply in Plaintiff’s case because

Plaintiff filed her claim before March 27, 2017.

III. Summary of the Administrative Law Judge’s Decision

An ALJ must follow a five-step sequential evaluation process to determine if a

claimant has proven that she is disabled. Packer v. Comm’r of Soc. Sec., 542 F. App’x

890, 891 (11th Cir. 2013) (citing Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999)).

An ALJ must determine whether the claimant: (1) is performing substantial gainful

activity; (2) has a severe impairment; (3) has a severe impairment that meets or

equals an impairment specifically listed in 20 C.F.R. Part 404, Subpart P, Appendix

1; (4) can perform her past relevant work; and (5) can perform other work of the sort

found in the national economy. Phillips v. Barnhart, 357 F.3d 1232, 1237-40 (11th

Cir. 2004). The claimant has the burden of proof through step four and then the

burden shifts to the Commissioner at step five. Hines-Sharp v. Comm’r of Soc. Sec., 511

F. App’x 913, 915 n.2 (11th Cir. 2013).

The ALJ determined that Plaintiff met the insured status requirements of the

Social Security Act through December 31, 2022. (Tr. at 17). At step one, the ALJ

found that Plaintiff “has not engaged in substantial gainful activity since October 17,

2016, the amended alleged onset date (20 [C.F.R. §] 404.1571 et seq.).” (Id.). The

ALJ, at step two, found that Plaintiff has the following severe impairments: “small

fiber neuropathy, myoclonic seizures and jerks, foot pain, a generalized anxiety

disorder, a major depressive disorder, and marijuana abuse disorder (20 [C.F.R. §]

404.1520(c)).” (Id.). At step three, the ALJ determined that Plaintiff “does not have

an impairment or combination of impairments that meets or medically equals the

severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1

(20 [C.F.R. §§] 404.1520(d), 404.1525, and 404.1526).” (Id.).

At step four, the ALJ found that Plaintiff has the residual functional capacity

(“RFC”):

[T]o perform light work as defined in 20 [C.F.R. §]

404.1567(b) except she can occasionally climb stairs and

ramps and never climb ladders and scaffolds. She can

occasionally balance, never crawl, occasionally operate foot

controls, occasionally reach above the head and frequently

handle and finger. She should avoid concentrated exposure

to extreme cold and heat and vibrations, and all exposure to

moving mechanical parts and unprotected heights. The

claimant is limited to understanding, remembering and

carrying out simple repetitive tasks, in a routine work

setting that has only occasional changes in the work routine,

and no fast-paced work.

(Id. at 20). The ALJ also determined that Plaintiff “is unable to perform any past

relevant work (20 [C.F.R. §] 404.1565).” (Id. at 24).

At step five, considering Plaintiff’s age, education, work experience, and RFC,

the ALJ determined that “there are jobs that exist in significant numbers in the

national economy that the claimant can perform. (20 [C.F.R. §§] 404.1569,

404.1569(a)).” (Id. at 25). The ALJ, relying on Vocational Expert (“VE”) testimony,

found that Plaintiff could perform the following jobs that exist in significant numbers

in the national economy: Cleaner (DOT# 323.687-014); Marker (DOT# 209.587-

034); and Sorter (DOT# 222.687-022). (Id.). For these reasons, the ALJ held that

Plaintiff “has not been under a disability, as defined in the Social Security Act, from

October 17, 2016, through the date of this decision (20 [C.F.R. §] 404.1520(g)).” (Id.

at 26).

IV. Standard of Review

The scope of this Court’s review is limited to determining whether the ALJ

applied the correct legal standard, McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir.

1988), and whether the findings are supported by substantial evidence, Richardson v.

Perales, 402 U.S. 389, 390 (1971). The Commissioner’s findings of fact are

conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial

evidence is more than a scintilla—i.e., the evidence must do more than merely create

a suspicion of the existence of a fact, and must include such relevant evidence as a

reasonable person would accept as adequate to support the conclusion. Foote v.

Chater, 67 F.3d 1553, 1560 (11th Cir. 1995) (citing Walden v. Schweiker, 672 F.2d 835,

838 (11th Cir. 1982); Richardson, 402 U.S. at 401).

Where the Commissioner’s decision is supported by substantial evidence, the

district court will 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. Edwards v. Sullivan, 937 F.2d 580, 584 n.3

(11th Cir. 1991); Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991). The district

court must view the evidence as a whole, taking into account evidence favorable as

well as unfavorable to the decision. Foote, 67 F.3d at 1560; accord Lowery v. Sullivan,

979 F.2d 835, 837 (11th Cir. 1992) (a court must scrutinize the entire record to

determine reasonableness of factual findings).

V. Analysis

On appeal, Plaintiff raises five issues. As stated by the parties, the issues are:

1. Whether the ALJ Properly Considered the Findings in the

Credited Opinion of Drs. Buré-Reyes and Levin;

2. Whether the ALJ Properly Relied on the Opinion of Dr. Nuss;

3. Whether the ALJ’s Evaluation and Rejection of Plaintiff’s Alleged

Symptoms and Limitations is in Accordance with Applicable Law

and Supported by Substantial Evidence;

4. Whether the ALJ Properly Accorded “Little Weight” to the FCE;

and

5. Whether the ALJ Properly Considered the Findings of

Ophthalmologists Dr. Aouchiche and Dr. Geller.

(Doc. 22 at 33-34). The Court addresses each issue separately below by first

summarizing the parties’ arguments, then reciting the applicable legal standards,

before addressing the ALJ’s opinion.

A. Whether the ALJ Properly Considered the Findings in the Credited

Opinions of Dr. Buré-Reyes and Dr. Levin.

First, Plaintiff argues that the ALJ failed to consider properly Dr. Buré-Reyes’

and Dr. Levin’s findings even though he afforded their opinions “considerable

weight.” (Doc. 22 at 34 (citing Tr. at 23-24)). Specifically, Plaintiff asserts that the

ALJ failed to include RFC limitations to account for both the mental functional

impairments and the visual processing and motor skills impairments identified by Dr.

Buré-Reyes and Dr. Levin. (Id. at 35 (citing Tr. at 20, 543)).

Plaintiff claims that the ALJ’s error is not harmless because: (1) the VE’s

testimony was not based on an RFC determination with limitations reflecting Dr.

Buré-Reyes’ and Dr. Levin’s opinions, (id. at 35 (citing Wilson v. Barnhart, 284 F.3d

1219, 1227 (11th Cir. 2002))); (2) the VE testified that “the inability to sustain at least

occasional near visual acuity or frequent use of the hands would eliminate all the

jobs . . . cited,” (id. at 36); and (3) had the ALJ “properly considered” Dr. Buré-

Reyes’ and Dr. Levin’s opinions, he would have found that Plaintiff’s mental

impairments meet Listing 12.07, (id. at 35-36 (citing 20 C.F.R. § 404, Subpart P,

Appendix 1, Listing 12.07; Tr. at 543, 270, 286, 340, 352, 373, 385, 417, 420, 428,

432, 437, 542, 604, 607, 625, 775, 779, 849, 859, 888)).

In response, the Commissioner asserts that the ALJ did not err because his

RFC finding reasonably accounted for the limitations opined by Dr. Buré-Reyes and

Dr. Levin. (Id. at 38). Moreover, the Commissioner argues that, even if the ALJ’s

assessment of Dr. Buré-Reyes’ and Dr. Levin’s opinions was insufficient, any error is

harmless because the “Cleaner” position that the ALJ found Plaintiff can perform

“does not require visual acuity and requires frequent use of the hands,” (id. at 38, 44

(citing Dictionary of Occupational Titles (DOT) § 323.687-014, 1991 WL 672783)), and

the ALJ need not include limitations that he determined were unsupported in his

hypothetical questions to the VE, (id. at 43 (citing Tr. at 20, 25, 52-53)). In response

to Plaintiff’s citations to the record, which do not refer to Dr. Buré-Reyes’ and Dr.

Levin’s opinions, the Commissioner asserts that it is not the task of the Court to

reweigh the evidence or opine if the evidence could support an alternative result. (Id.

at 42 (citing Mitchell v. Comm’r, Soc. Sec. Admin., 771 F.3d 780, 782 (11th Cir. 2014))).

Finally, the Commissioner argues that Plaintiff failed to show her impairments meet

or equal Listing 12.07. (Id. at 46-47 (citing Tr. at 18-19, 193-97)).

An RFC is the most a claimant can still do despite the physical and mental

limitations of her impairments. See 20 C.F.R. § 416.945(a); Phillips v. Barnhart, 357

F.3d 1232, 1238 (11th Cir. 2004). The ALJ is responsible for determining the

claimant’s RFC, and he must consider the claimant’s ability to “meet the physical,

mental, sensory, and other requirements of work.” 20 C.F.R. § 416.946(c). The ALJ

must consider all the claimant’s medically determinable impairments, even those not

designated as severe. 20 C.F.R. § 416.945(a)(2).

The Social Security regulations define medical opinions as statements from

physicians, psychologists, or other acceptable medical sources that reflect judgments

about the nature and severity of impairments, including symptoms, diagnosis, and

prognosis, what a claimant can still do despite impairments, and physical or mental

restrictions. 20 C.F.R. § 404.1527(a)(2). While an ALJ must give a treating

physician special deference, there is no such requirement for non-treating sources.

Barnhart, 357 F.3d at 1240-41. Instead, the ALJ’s RFC determination must merely

be supported by substantial evidence. 42 U.S.C. § 405(g). Additionally, an “ALJ

may reject any medical opinion if the evidence supports a contrary finding.” Lacina

v. Comm’r, Soc. Sec. Admin., 606 F. App’x 520, 526 (11th Cir. 2015) (quoting Sharfarz

v. Bowen, 825 F.2d 278, 280 (11th Cir. 1987)).

Finally, an incorrect application of the regulations will result in a harmless

error if a correct application of the regulations would not contradict the ALJ’s

ultimate findings. Denomme v. Comm’r, Soc. Sec. Admin., 518 F. App’x 875, 877 (11th

Cir. 2013) (citing Diorio v. Heckler, 721 F.2d 726, 728 (11th Cir. 1983)); see also

Edwards v. Sullivan, 937 F.2d 580, 586 (11th Cir. 1991) (holding that remand is not

warranted unless an error shows “unfairness” or “clear prejudice”).

The Court finds that the ALJ appropriately considered Dr. Buré-Reyes’ and

Dr. Levin’s opinions.

To begin, the Court notes that when the ALJ summarized Dr. Buré-Reyes’

and Dr. Levin’s opinions, he specifically noted that they found Plaintiff’s “mental-set

shifting was impaired, and her self-report inventory of depression was indicative of

severe depression.” (See Tr. at 22 (citing Tr. at 543)). Additionally, the ALJ

emphasized Dr. Buré-Reyes’ and Dr. Levin’s findings that Plaintiff exhibits

“emotional problems likely the result of traumatic events and undertreated

psychiatric symptoms directly stemming from psychological trauma[, however,

Plaintiff’s] longstanding use of benzodiazepines and marijuana was likely a way of

coping through self-medication, and her cognitive and emotional wellbeing will

improve with appropriate treatment.” (Id. (citing Tr. at 543-544)). The ALJ also

noted that Dr. Buré-Reyes and Dr. Levin found that Plaintiff had “tremors in her

hands, head and mouth” and that she “alleged seeing black spots, figures and images

before falling asleep.” (Id. at 21 (citing Tr. at 542)).

With this summary in mind, the Court is unpersuaded by Plaintiff’s argument

that the ALJ failed to consider Dr. Buré-Reyes’ and Dr. Levin’s findings in Plaintiff’s

mental limitations. The ALJ clearly assessed their opinions to the extent that they

acknowledge “untreated psychiatric symptoms” that “will improve with appropriate

treatment.” (See id. (citing Tr. at 543)). The ALJ limited Plaintiff to “understanding,

remembering and carrying out simple repetitive tasks, in a routine work setting that

has only occasional changes in the work routine, and no fast-paced work.” (Id. at

20). By finding that Plaintiff could no longer engage in semiskilled work, which is

evident from the ALJ’s finding that Plaintiff can no longer engage in her past

relevant work as an administrative clerk, Specific Vocational Preparation (“SVP”) 4,

the ALJ clearly imposed limitations on Plaintiff’s mental RFC consistent with Dr.

Buré-Reyes’ and Dr. Levin’s findings and supported by substantial evidence. (Id. at

20, 24, 543).

To the extent that Plaintiff seeks additional limitations, the Court notes that it

will not reweigh the evidence. Rather, the Court affirms the ALJ’s findings because

they are supported by substantial evidence. See Edwards, 937 F.2d at 584 n.3.

Plaintiff claims that Dr. Buré-Reyes and Dr. Levin found that she suffers from a

somatic disorder, however, this is a misstatement of Dr. Buré-Reyes’ and Dr. Levin’s

opinions. Their impressions actually state that:

[Plaintiff] also endorsed elevated scores on a symptom

validity scale, which is indicative of over reporting somatic

and cognitive symptoms. Elevated scores were observed in

several clinical scales, with the most notable [scores] in

scales associated with the development and manifestation

of physical symptoms under stress as well as depression.

This response pattern together with the observed elevation

in the symptom validity scale is prominent in individuals

who seek medical attention, however their physical

symptoms are likely to be related to emotional disturbances.

Ms. Garcia’s profile is indicative of a tendency to develop

and manifest physical symptoms as expression of emotional

distress.

(Tr. at 543). Plaintiff’s claim that these impressions are equivalent to “a finding of a

somatic disorder” are unavailing. Rather, they tend to support the ALJ’s

interpretation of Dr. Buré-Reyes’ and Dr. Levin’s findings. Based on these

representations, the Court finds that the ALJ sufficiently considered the mental

limitations found in Dr. Buré-Reyes’ and Dr. Levin’s impressions.

The Court also finds that the ALJ sufficiently considered Dr. Buré-Reyes’ and

Dr. Levin’s opinions to the extent that they analyzed Plaintiff’s physical limitations.

Dr. Buré-Reyes’ and Dr. Levin’s opinions state that “[Plaintiff] evidenced

moderately impaired visuospatial judgement [sic], severely impaired graphomotor

skills and constructional praxis and mildly impaired constructional abilities.” (Id.).

Additionally, they stated that Plaintiff “demonstrated severely impaired bilateral fine

motor dexterity.” (Id.). In contrast to these findings, however, as stated above, Dr.

Buré-Reyes and Dr. Levin also found that Plaintiff “endorsed elevated scores on a

symptom validity scale, which is indicative of over reporting somatic and cognitive

symptoms.” (Id.). Moreover, Dr. Buré-Reyes and Dr. Levin stated that Plaintiff

“will improve with appropriate treatment.” (Id.). Notably, Dr. Buré-Reyes’ and Dr.

Levin’s opinions lack any specific findings about the nature of Plaintiff’s physical

impairments, a diagnosis of the physical impairments, a prognosis, a statement on

what Plaintiff can still do despite her physical impairments, or any suggestions on

physical restrictions. Thus, the Court finds that there is no evidence that the ALJ

disregarded any of Dr. Buré-Reyes’ and Dr. Levin’s findings and, in fact, properly

considered them given that they contained contrasting findings of Plaintiff’s physical

restrictions. See Manes v. Comm’r of Soc. Sec., No. 8:16-cv-3234-T-36JBT, 2018 WL

1832330, at *11 (M.D. Fla. Mar. 28, 2018) (finding that an ALJ did not err when he

failed to discuss medical records that did not discuss diagnoses, prognoses,

restrictions or abilities).

The Court, therefore, finds that the ALJ sufficiently considered Dr. Buré-

Reyes’ and Dr. Levin’s findings where the ALJ specifically summarized the findings

and issued an RFC consistent with them. Dr. Buré-Reyes’ and Dr. Levin’s findings

did not recommend any specific limitations, as such, the ALJ exercised his discretion

to interpret the findings and impose acceptable RFC limitations. The Court declines

to reweigh the evidence when, as here, substantial evidence supports the

Commissioner’s findings. See Edwards, 937 F.2d at 584 n.3; see also 42 U.S.C. §

405(g).

B. Whether the ALJ Properly Relied on the Opinion of Dr. Nuss.

Second, Plaintiff argues that the ALJ erred by affording “considerable weight”

to the opinion of Dr. Nuss. (Doc. 22 at 47 (citing Tr. at 20, 23)). Plaintiff argues that

affording Dr. Nuss’ opinion considerable weight was an error because Dr. Nuss: (1)

was a non-examining source; (2) had a medical specialty irrelevant to Plaintiff’s case;

and (3) gave his opinion before the record was complete. (Id. (citing 20 C.F.R. §

404.1527(c)(1)-(5))). Plaintiff specifically points to a portion of Dr. Nuss’ opinion

where he noted that “a biopsy was negative for small fiber neuropathy,” which was

later contradicted by Dr. Manier’s finding of small fiber neuropathy in Plaintiff’s

thigh. (Id. at 48 (citing Tr. at 67, 394, 769)). Plaintiff contends that the ALJ’s RFC

determination is not supported by substantial evidence based on his reliance on Dr.

Nuss’ outdated opinion. (Id. at 47-48).

In response, the Commissioner contends that substantial evidence supports the

ALJ’s decision to give considerable weight to Dr. Nuss’ opinion. (See id. at 49-50).

The Commissioner argues that “whether a physician has reviewed the entire record

is only one of many factors an ALJ considers in determining the weight to give a

physician’s opinion.” (Id. at 49 (citing 20 C.F.R. § 404.1527(c))). Additionally, the

Commissioner contends that the ALJ was entitled to afford Dr. Nuss’ opinion

considerable weight, even though Dr. Nuss did not review the entire record, because

the ALJ had access to the entire record when he made the ultimate determination.

(Id. at 50 (citing Cooper v. Comm’r of Soc. Sec., 521 F. App’x 803, 807 (11th Cir. 2013);

Forrester v. Comm’r of Soc. Sec., 455 F. App’x 899, 902-03 (11th Cir. 2012))). In sum,

the Commissioner argues that the ALJ did not err by giving considerable weight to

Dr. Nuss’ opinion because the ALJ reviewed all of the evidence of record and Dr.

Nuss’ opinion is supported by and consistent with the overall evidence of record. (Id.

at 50 (citations omitted)).

In evaluating medical opinions, the ALJ considers many factors, including the

examining relationship, the treatment relationship, whether an opinion is amply

supported, whether an opinion is consistent with the record and the doctor’s

specialization. See 20 C.F.R. §§ 404.1527(c). Generally, the more consistent a

physician’s opinion is with the record as a whole, the more weight an ALJ should

place on that opinion. 20 C.F.R. §§ 404.1527(c)(4). Usually, the opinions of treating

physicians are given more weight than non-treating physicians, and the opinions of

examining physicians are given more weight than non-examining physicians. See 20

C.F.R. §§ 404.1527(c)(1)-(2). A non-examining doctor’s opinion that contradicts an

examining doctor’s medical report is accorded little weight and cannot, standing

alone, constitute substantial evidence. Edwards v. Sullivan, 937 F.2d 580, 584 (11th

Cir.1991). However, the ALJ may rely on a non-examining physician’s opinion if it

does not contradict the examining physician’s medical findings or test results in the

medical report. See id. at 585; see also Flowers v. Comm’r of Soc. Sec., 441 F. App’x 735,

740 (11th Cir. 2011).

Here, the Court finds that the ALJ did not err by giving considerable weight to

Dr. Nuss’ opinion where the ALJ explicitly found that the opinion is supported by

the physical examination findings in the record, even though it was not based on the

most recent evidence of record. (See Tr. at 23 (citing Tr. at 284-300, 301-13, 365-405,

767-83, 784-800, 880-98, 899-917)).

To begin, the Court is unpersuaded by Plaintiff’s argument that Dr. Nuss’

opinion is not entitled to considerable weight because he is “not of a relevant

specialty.” (Doc. 22 at 47). Plaintiff cites no case law to support the argument that a

physician with a specialization cannot render an opinion that constitutes substantial

evidence. Rather, the pertinent regulations state that “[w]e generally give more

weight to the medical opinion of a specialist about medical issues related to his or her

area of specialty than to the medical opinion of a source who is not a specialist.” 20

C.F.R. § 404.1527(c)(5). While Dr. Nuss’ specialty is not relevant to Plaintiff’s

impairments, he is still a state agency medical consultant, highly qualified physician,

and an expert in Social Security disability evaluations. Milner v. Barnhart, 275 F.

App’x 947, 948 (11th Cir. 2008); see also SSR 96-6p (stating that the ALJ must treat

the findings of State agency medical consultants as expert opinion evidence of non-

examining sources). The Court also notes that, even if 20 C.F.R. § 404.1527(c)(5)

required the ALJ to afford a specialist’s opinion less weight, that is only one of

several factors that the ALJ must assess in completing his determination. See 20

C.F.R. § 404.1527(c)(1)-(5).

Plaintiff’s arguments that Dr. Nuss’ opinion is not entitled to considerable

weight because Dr. Nuss is a non-examining physician and because his opinion was

rendered before the entire record was complete, are also unpersuasive. The Eleventh

Circuit has found that an ALJ may afford weight to a non-examining physician even

when that non-examining physician was unable to review all the plaintiff’s medical

records before rendering an opinion. Cooper v. Comm’r of Soc. Sec., 521 F. App’x 803,

807 (11th Cir. 2013). Here, the ALJ had access to the evidence added to the record

after Dr. Nuss rendered his opinion and he cited that evidence when he afforded Dr.

Nuss’ opinion considerable weight. Moreover, the ALJ expressly noted that Dr.

Nuss’ opinion “was not based on the most recent evidence of record.” (Tr. at 23).

The ALJ also considered the findings of Dr. Buré-Reyes and Dr. Levin and he

considered Plaintiff’s impairment resulting from the small fiber neuropathy present in

her thigh. (See id. at 17, 22, 23-24). Thus, the Court is unpersuaded by Plaintiff’s

argument that the ALJ’s reliance on Dr. Nuss’ opinion is not supported by

substantial evidence given that the ALJ explicitly accounted for and summarized the

limitations and findings added to the record after Dr. Nuss’ evaluation.

The ALJ’s decision to afford considerable weight to the opinion of a non-

examining physician who rendered an opinion before the record was complete is,

therefore, supported by substantial evidence in the record when, as here, the ALJ

considered the entire record. See Manes v. Comm’r of Soc. Sec., No. 8:16-CV-3234-T-

36JBT, 2018 WL 1832330, at *9 (M.D. Fla. Mar. 28, 2018) (holding that the ALJ

did not err by affording great weight to the opinion of a non-examining doctor who

rendered her opinion before the record was complete).

C. Whether the ALJ’s Subjective Symptom Evaluation Is Supported by

Substantial Evidence.

Third, Plaintiff argues that the ALJ erred when he completed Plaintiff’s

subjective symptom evaluation because “evaluation of whether Plaintiff’s statements

are ‘credible’ constitutes a clear error of law.” (Doc. 22 at 50 (citing SSR 16-3p, 2016

WL 1119029)). Plaintiff takes issues with the ALJ’s statement that the record

contains “evidence of exaggerated symptoms” and the ALJ’s finding that Plaintiff’s

“symptoms may not have been as serious as had been alleged.” (Id. at 51 (citing Tr.

at 21, 23)). Moreover, Plaintiff argues that the evidence in the record does not

support the contention that Plaintiff was exaggerating her symptoms. (Id. at 51-52

(citing Tr. at 394, 769, 595-600, 604-10, 863, 549, 885, 887, 543)). Additionally,

Plaintiff claims that the ALJ cannot rely on her activities of daily living as substantial

evidence for the subjective symptom evaluation because they are relatively

“mundane.” (Id. at 53-54 (citing Lewis v. Callahan, 125 F.3d 1436, 1441 (11th Cir.

1997)). Finally, Plaintiff argues that the ALJ’s rejection of Plaintiff’s subjective

symptom allegations is unsupported because she “pursued aggressive diagnostic

evaluations and intervention when recommended” and her ability to perform

personal care failed to demonstrate an ability to sustain competitive work activity.

(Id. at 53-54 (citations omitted)).

The Commissioner argues that the ALJ properly evaluated Plaintiff’s

subjective complaints under the regulations and Eleventh Circuit case law. (Id. at 54-

58).

To establish disability based on testimony of pain and other symptoms, a

plaintiff must satisfy two prongs of the following three-part test: “(1) evidence of an

underlying medical condition; and (2) either (a) objective medical evidence

confirming the severity of the alleged pain; or (b) that the objectively determined

medical condition can reasonably be expected to give rise to the claimed pain.”

Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002) (citing Holt v. Sullivan, 921

F.3d 1221, 1223 (11th Cir. 1991)). After an ALJ has considered a plaintiff’s

complaints of pain, the ALJ may reject them as not credible, and that determination

will be reviewed to determine if it is based on substantial evidence. Moreno v. Astrue,

366 F. App’x 23, 28 (11th Cir. 2010) (citing Marbury v. Sullivan, 957 F.2d 837, 839

(11th Cir. 1992)). If an ALJ discredits the subjective testimony of a plaintiff, then he

must “articulate explicit and adequate reasons for doing so. Failure to articulate the

reasons for discrediting subjective testimony requires, as a matter of law, that the

testimony be accepted as true.” Wilson, 284 F.3d at 1225 (citations omitted). “A

clearly articulated credibility finding with substantial supporting evidence in the

record will not be disturbed by a reviewing court.” Foote v. Chater, 67 F.3d 1553,

1562 (11th Cir. 1995).2

The factors an ALJ must consider in evaluating a plaintiff’s subjective

symptoms are: “(1) the claimant’s daily activities; (2) the nature and intensity of pain

and other symptoms; (3) precipitating and aggravating factors; (4) effects of

medications; (5) treatment or measures taken by the claimant for relief of symptoms;

and other factors concerning functional limitations.” Moreno, 366 F. App’x at 28

(citing 20 C.F.R. § 404.1529(c)(3)).

2 Effective March 28, 2016, SSR 16-3p superseded SSR 96-7p. See SSR 16-3p, 2016

WL 1119029 (March 16, 2016). SSR 16-3p explains that “we are eliminating the use

of the term ‘credibility’ from our sub-regulatory policy, as our regulations do not use

this term. In doing so, we clarify that subjective symptom evaluation is not an

examination of an individual’s character.” Id.

The Court finds that the ALJ’s subjective symptom evaluation is supported by

substantial evidence and the ALJ did not err by using the phrase “not entirely

credible.” (Tr. at 21).

As an initial matter, Plaintiff argues that the ALJ violated SSR 16-3p when he

allegedly found that “[Plaintiff] lacked credibility.” (Doc. 22 at 50).3 As stated

above, SSR 16-3p supersedes SSR 96-7p and eliminates the use of the term

“credibility” in the sub-regulatory policy. SSR 16-3p, 81 Fed. Reg. 14166, 14171.

SSR 16-3p stressed that, when evaluating a claimant’s symptoms, the adjudicator

will “not assess an individual’s overall character or truthfulness” but instead “focus

on whether the evidence establishes a medically determinable impairment that could

reasonably be expected to produce the individual’s symptoms and given the

adjudicator’s evaluation of the individual’s symptoms, whether the intensity and

persistence of the symptoms limit the individual’s ability to perform work-related

activities.” Id. SSR 16-3p clarifies that adjudicators will consider whether the

“individual’s statements about the intensity, persistence, and limiting effects of

symptoms are consistent with the objective medical evidence and other evidence of

record.” Id. at 14170. With this legal standard in mind, it is clear that the ALJ’s use

3 “Social Security Rulings are agency rulings published under the Commissioner’s

authority and are binding on all components of the Administration.” Klawinski v.

Comm’r of Soc. Sec., 391 F. App’x 772, 775 (11th Cir. 2010) (citing Sullivan v. Zebley,

493 U.S. 521, 531 n.9 (1990)). While Social Security Rulings are not binding on the

Court, id., they are nevertheless afforded “great respect and deference, if the

underlying statute is unclear and the legislative history offers no guidance.” Id.

(citing B. ex rel. B. v. Schweiker, 643 F.2d 1069, 1071 (5th Cir. 1981)).

of the phrase “not entirely credible” does not warrant remand. The ALJ’s opinion,

read in context, did not assess Plaintiff’s “character or truthfulness,” but rather,

consistent with the two-step process for evaluating symptoms, it assessed Plaintiff’s

subjective complaints and found that they conflicted with the other evidence in the

record. (See Tr. at 20-24 (citations omitted)); see also SSR 16-3p, 81 Fed. Reg. 14166,

14170-71; Hargress v. Soc. Sec. Admin., Comm’r, 883 F.3d 1302, 1308 n.3 (11th Cir.

2018). The ALJ has a right to evaluate Plaintiff’s subjective symptom allegations, as

he did here, to determine whether the limiting effects of the symptoms “are

consistent with” the record as a whole. See id.

Here, the ALJ found that Plaintiff’s medically determinable impairments

could reasonably be expected to cause Plaintiff’s alleged symptoms, but her

statements concerning intensity, persistence, and the limiting effects of those

symptoms was not entirely consistent with the medical and other evidence of record

for the reasons he stated in his decision. (Tr. at 20-21). The ALJ discussed Plaintiff’s

allegations of pain, weakness, and numbness, but contrasted this testimony with

Plaintiff’s imaging findings, generally mild objective findings from physical

examinations, routine and conservative medical treatment, and activities of daily

living such as Plaintiff’s ability to perform personal care without assistance, prepare

meals, and deal with money management and bill payment online. (Id. at 21). The

ALJ also discussed in depth Plaintiff’s medical records. (Id. at 21-24). After

considering Plaintiff’s subjective symptoms and the associated medical evidence, the

ALJ made a determination, supported by substantial evidence, that Plaintiff could

perform light work activity consistent with the RFC finding. (Id. at 21).

The Court is also unpersuaded by Plaintiff’s reliance on Lewis v. Callahan, 125

F.3d 1436, 1441 (11th Cir. 1997), which states that participation in activities of short

duration does not necessarily disqualify a claimant from disability. While the Court

recognizes that Plaintiff’s activities of daily living are limited and the ALJ failed to

explicitly articulate all the limitations, the ALJ is not prohibited from considering

daily activities as one factor in the subjective symptom evaluation. See 20 C.F.R. §

404.1529(c)(3)(i); Macia v. Bowen, 829 F.2d 1009, 1012 (11th Cir. 1987). The ALJ

quoted the record when he stated that Plaintiff “[knows] how to manage money and

pay bills online,” (Tr. at 21, 23 (citing Tr. at 921-22)), “[performs] personal care

without assistance,” (id. (citing Tr. at 45, 192-99, 921-22)), washes dishes, (id. (citing

Tr. at 44)), and prepares simple meals, (id. (citing Tr. at 192-99, 921)). Nor did the

ALJ rely on Plaintiff’s activities of daily living as the sole support for his subjective

symptom evaluation. He also expressly considered Plaintiff’s imaging findings,

objective findings from physical examinations, and routine and conservative medical

treatment. (Id. at 21-23).

The Court is similarly unpersuaded by Plaintiff’s argument that the ALJ erred

by finding her medical treatment history routine and conservative. (See Doc. 22 at

53). Plaintiff cites multiple portions of the record that were expressly cited and

considered by the ALJ. (See, e.g., id. (citing Tr. at 366, 371-73, 475-76, 488, 769, 782,

845-51, 885)). The Court finds that Plaintiff’s citations to portions of the record

expressly considered by the ALJ are unpersuasive for arguing that the ALJ’s

credibility determination is unsupported by substantial evidence. The subjective

symptom evaluation is the province of the ALJ and this Court declines to disturb it

in light of the substantial supporting evidence in the record cited by the ALJ. See

Foote, 67 F.3d at 1562. Moreover, when the ALJ conducts the subjective symptom

evaluation “there is no rigid requirement that the ALJ specifically refer to every piece

of evidence in his decision, so long as the ALJ’s decision enables the district court to

conclude that the ALJ considered [the claimant’s] medical condition as a whole.”

Adams v. Comm’r of Soc. Sec., 586 F. App’x 531, 533 (11th Cir. 2014) (quotations

omitted). Here, upon reviewing the record, the Court finds that the ALJ considered

Plaintiff’s medical history treatment and appropriately considered it routine and

conservative. (See Tr. at 23).

In sum, the Court finds that the ALJ provided an in-depth analysis of

Plaintiff’s subjective symptoms and considered them thoroughly in the decision. The

ALJ considered Plaintiff’s imaging findings, objective findings from physical

examinations, routine and conservative medical treatment, activities of daily living,

and the medical record as a whole. The ALJ provided clearly articulated reasons

supported by substantial evidence of record to reject Plaintiff’s extreme allegations of

pain. Accordingly, the Court finds that the ALJ did not err in his subjective

symptom determination and this determination is supported by substantial evidence.

D. Whether the ALJ Properly Accorded Little Weight to the FCE.

Fourth, Plaintiff argues that the ALJ erred in according “little weight” to

physical therapist Rebecca Loiacano’s Function Capacity Evaluation (“FCE”).

(Doc. 22 at 58-60). In support, Plaintiff notes that the FCE addressed Plaintiff’s

driving, stating that she is required to drive slowly, and Plaintiff’s activities of daily

living, which she can only perform intermittently with assistance. (Id. at 59 (citing

Tr. at 887-88)). Additionally, Plaintiff argues that the FCE should not be rejected

because its conclusions are supported by a summary of the testing performed on

Plaintiff and of the medical records show clinical examination findings. (Id. at 59-60

(citing Tr. at 270, 385, 409-11, 413, 417, 420, 428, 432, 437, 542, 604, 625, 751, 775,

779, 859, 860, 884, 885, 887-90)). Plaintiff contends that the ALJ’s reasons for

affording “little weight” to the FCE were insufficient and unsupported by substantial

evidence.

In response, Defendant contends that “the ALJ properly evaluated and

weighed the [FCE] from one-time examiner and physical therapist, Rebecca

Loiacano.” (Id. at 60 (citing Tr. at 24, 886-98)). In support, Defendant argues that

because PT Loiacano is a physical therapist, she is not an acceptable medical source

under the regulations and the opinion is, therefore, not entitled to special weight.

(Id. (citing 20 C.F.R. § 404.1527(f); Farnsworth v. Soc. Sec. Admin., 636 F. App’x 776,

783-85 (11th Cir. 2016)). Additionally, Defendant contends that PT Loiacano “was

a one-time examiner with no treating relationship with Plaintiff, which also limits the

deference due her opinion.” (Id.).

Moreover, Defendant contends that PT Loiacano had no treating relationship

with Plaintiff and that the report does not show that she reviewed Plaintiff’s medical

records. (Id. at 61-62 (citing Tr. at 886-98)). Accordingly, Defendant argues that the

ALJ’s decision to afford the opinion “little weight” is supported by substantial

evidence. (Id. at 62). Specifically, Defendant notes that “Plaintiff’s treatment record

in 2016 shows generally unremarkable physical examination findings, including full

muscle strength and intact sensation.” (Id. (citing Tr. at 286, 295, 369, 383-84, 392)).

Plaintiff specifically contends that the ALJ erred by affording only little weight

to the FCE conducted by PT Loiacano. (Id. at 58-60).

In evaluating this issue, the Court notes that the relevant Social Security

regulations define “medical opinions” as “statements from physicians and

psychologists or other acceptable medical sources that reflect judgments about the nature

and severity of [the claimant’s] impairment(s), including [the claimant’s] symptoms,

diagnosis and prognosis, what [the claimant] can still do despite impairment(s), and

[the claimant’s] physical or mental restrictions.” 20 C.F.R. § 404.1527(a)(2)

(emphasis added). “Acceptable medical sources” include professionals such as

licensed physicians and licensed psychologists. Id. § 404.1513(a). Physical therapists

are not acceptable medical sources. See 20 C.F.R. § 404.1513(a). Instead, they are

considered an “other source.” See id. § 404.1513(d).

As an “other source,” opinions from physical therapists are not considered

“medical opinions” under the regulations. See SSR 06-03p, 2006 WL 2329939, at *2.

Further, under the regulations, only the opinions of acceptable medical sources may

be given controlling weight. See 20 C.F.R. § 404.1527; see also SSR 06-03p, 2006 WL

2329939, at *2. Moreover, “an ALJ is not required to accept the opinion of an

individual who is not listed as an acceptable source of medical evidence.” Berry v.

Astrue, No. 509-cv-328-OC-GRJ, 2010 WL 3701392, at *8 (M.D. Fla. Sept. 15, 2010)

(citing SSR 06-03p; Frantz v. Astrue, 509 F.3d 1299 (10th Cir. 2007); 20 C.F.R. §§

404.1513(d), 416.913(d)).

Under Agency guidelines, however, while information from other sources

“cannot establish the existence of a medically determinable impairment,” the

information from other sources “may provide insight into the severity of the

impairment(s) and how it affects the individual’s ability to function.” SSR 06-03p,

2006 WL 2329939, at *2. Indeed, while physical therapist’s opinions are not entitled

to any special consideration, this Court has stated that their opinions are “important

and should be evaluated on key issues such as impairment severity and functional

effects, along with the other relevant evidence in the file.” Berry, 2010 WL 3701392,

at *8 (citing SSR 06-03p; Frantz, 509 F.3d at 1299; 20 C.F.R. §§ 404.1513(d),

416.913(d)).

Against this backdrop, the Court finds that the ALJ properly considered PT

Loiacano’s opinion. As a physical therapist, PT Loiacano is not an acceptable

source, meaning that she cannot render a “medical opinion.” See 20 C.F.R. §§

404.1513(a); 404.1527(a)(2). Moreover, because PT Loiacano is a physical therapist,

the evidence from PT Loiacano is not entitled to any special deference. (Id.).

Further, because PT Loiacano is not an acceptable source of medical evidence, the

ALJ was not required to accept her opinion. See Berry, 2010 WL 3701392, at *8

(citing SSR 06–03p; Frantz, 509 F.3d 1299 (10th Cir. 2007); 20 C.F.R. §§

404.1513(d), 416.913(d)). Yet, the Court finds that the ALJ properly considered the

opinion “on key issues such as impairment severity and functional effects, along with

the other relevant evidence in the file.” See id. The ALJ’s finding that PT Loiacano’s

opinion is only entitled to “little weight” is supported by substantial evidence in the

record as cited by the ALJ. (See Tr. at 24 (citing Tr. at 192-99, 301-13, 325-64, 540-

47, 767-83, 784-800, 844-51, 918-28)).

Notably, the ALJ determined that Plaintiff’s subjective complaints conflicted

with the record as a whole, a finding which this Court affirmed above. (Id. at 21). In

so finding, the ALJ summarized the objective evidence and relevant medical history.

(Id. at 21-24). Specifically, the ALJ summarized multiple imaging and diagnostic

test findings from 2016 through late 2017 that were, on average, normal. (Id. at 21

(citing Tr. at 366, 371, 373, 395, 399, 475, 477, 782, 799)). The ALJ also found that

Plaintiff’s physical and mental status examinations were generally normal. (Id.

(citing Tr. at 284-86, 305, 325-27, 356-58, 368-69, 540-48, 769-75, 786-92, 849, 918-

28)). The ALJ thoroughly summarized and analyzed Plaintiff’s medical history and

his finding that she had generally normal physical and neurological examination

findings, conservative treatment, and high functioning daily activities was supported

by substantial evidence and sufficient for the ALJ to determine that PT Loiacano’s

opinion was entitled to “little weight.”

Moreover, the ALJ specifically cited and considered a majority of the records

that Plaintiff relies on to argue that the ALJ’s decision is unsupported by substantial

evidence and the Court notes that it will not reweigh the evidence. Rather, the Court

must affirm if substantial evidence supports the Commissioner’s findings. See

Edwards, 937 F.2d at 584 n.3. Additionally, “‘there is no rigid requirement that the

ALJ specifically refer to every piece of evidence in his decision, so long as the ALJ’s

decision’ enables the district court ‘to conclude that the ALJ considered [the

claimant’s] medical condition as a whole.’” Adams v. Comm’r, Soc. Sec. Admin., 586

F. App’x 531, 533 (11th Cir. 2014) (alteration in original) (quoting Dyer v. Barnhart,

395 F.3d 1206, 1211 (11th Cir. 2005)).

Here, the ALJ specifically addressed the evidence in the record and, relying on

his previous statements, rejected PT Loiacano’s opinion because it was “not well

supported by the generally normal physical and neurological examination findings

from treating and examining sources, a lack of more than conservative treatment,

and [Plaintiff’s] high functioning activities of daily living.” (See Tr. at 24). Because

the ALJ stated with particularity the weight he gave to PT Loiacano’s opinion, and

the weight is supported by substantial evidence as shown by the ALJ’s thorough

summary of the record, the Court finds that remand is not appropriate.

E. Whether the ALJ Properly Considered the Findings of

Ophthalmologists Dr. Aouchiche and Dr. Geller.

Finally, Plaintiff argues that the ALJ committed a harmful error by failing to

discuss or assign weight to the opinions of treating ophthalmologist Dr. Aouchiche

and examining physician Dr. Geller. (Doc. 22 at 63-65). Plaintiff argues that the

ALJ’s failure to discuss either doctors’ opinion or evidence constitutes a harmful

error because the Court cannot determine whether the ALJ overlooked their

opinions. (Id. at 64-65 (citing Bailey v. Comm’r of Soc. Sec., 802 F. App’x 462, 465

(11th Cir. 2020); Coppola v. Colvin, No. 12-cv-492-JL, 2014 WL 677138, at *5

(D.N.H. Feb. 21, 2014)). Additionally, Plaintiff contends that this error was harmful

because the vocational expert testified that the occupations he identified Plaintiff

could perform all require “at least occasional near acuity.” (Id. at 65 (citing Tr. at

55)).

In response, the Commissioner argues that neither doctor’s treatment notes

constitute “medical opinions” that the ALJ was required to assign weight. In

support, the Commissioner asserts that neither set of treatment notes “reflect work-

related limitations.” (Id. at 65-66 (citing 20 C.F.R. § 404.1527(a)(2); Winschel v.

Comm’r of Soc. Sec., 631 F.3d 1176, 1178-79 (11th Cir. 2011))). Finally, the

Commissioner argues that, even if the doctors’ notes constituted medical opinions

that the ALJ was required to weigh, any failure to do so was harmless because the

vocational expert identified the “cleaner” job that Plaintiff could perform, which

“does not require visual acuity.” (Id. at 66-67 (citing DOT § 323.687-014, 1991 WL

672783; Tr. at 25, 53)).

In reviewing this issue, the Court notes that medical opinions are statements

from physicians, psychologists, or other acceptable medical sources that reflect

judgments about the nature and severity of impairments, including symptoms,

diagnosis and prognosis, what a claimant can still do despite impairments, and

physical or mental restrictions. 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2).

An ALJ is required to consider every medical opinion. Bennett v. Astrue, No.

308-cv-646-J-JRK, 2009 WL 2868924, at *2 (M.D. Fla. Sept. 2, 2009) (citing 20

C.F.R. §§ 404.1527(d), 416.927(d)). Additionally, the Eleventh Circuit has stated

that an ALJ must state with particularity the weight given to different medical

opinions and the reasons therefor. Winschel, 631 F.3d at 1179. Otherwise, the Court

has no way to determine whether substantial evidence supports the ALJ’s decision,

and the Court will not affirm simply because some rationale might have supported

the ALJ’s conclusion. See id.

Nonetheless, an ALJ is not rigidly required “to refer to every piece of

evidence” in rendering a decision, as long as the ALJ’s decision “is not a broad

rejection” that is insufficient to enable to Court to conclude that the ALJ considered

the claimant’s medical condition as a whole. Dyer, 395 F.3d at 1211. Moreover, the

Court notes that an incorrect application of the regulations will result in harmless

error if a correct application of the regulations would not contradict the ALJ’s

ultimate findings. Denomme, 518 F. App’x at 877-78 (citing Diorio, 721 F.2d at 728).

In those situations, the ALJ’s decision will stand. Id.

Dr. Aouchiche examined Plaintiff twice in early 2017, and once on October 6,

2017. (See Tr. at 406-13, 750-51). Dr. Aouchiche found that Plaintiff’s visual acuity

was 20/40 in her left eye, Plaintiff complained of “droopy lul and blurred vision,”

and she assessed myoclonus pattern with nystagmoid motility, unspecified

nystagmus, and other localized visual field defect, left eye. (Id.).

Dr. Geller examined Plaintiff one time on October 15, 2018 and completed a

Visual Evaluation Report that states “Seizure Disorder” under “Summary and

Impressions” and “Neurological eval [sic]” under “Recommendations.” (Id. at 875-

79).

The Court finds that neither set of treatment notes constitute formal opinions,

and thus the ALJ was not required to assign them a weight or explicitly summarize

them. The Eleventh Circuit has held that treatment notes including a description of

a claimant’s symptoms, a diagnosis, and a judgment about the severity of her

impairments, constitute a medical opinion that the ALJ must review. Winschel, 631

F.3d at 1176. In Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176 (11th Cir. 2011),

because the ALJ did not reference the treating physician’s medical opinion, the

Court could not determine whether his opinion was considered and rejected, or not

considered at all. Id. The instant case is distinguishable for Winschel, however,

because nothing in Dr. Aouchiche or Dr. Geller’s treatment notes offer judgments

about whether Plaintiff’s impairments limit her ability to engage in work related

activities. (See Tr. at 406-13, 750-51, 875-79).

Even though Dr. Aouchiche diagnosed Plaintiff with myoclonus pattern with

nystagmoid motility, unspecified nystagmus, and other localized visual field defect,

left eye, she did not make any statements about the nature or severity of Plaintiff’s

impairments, such as a prognosis, restrictions, or her remaining abilities. (Id.).

Although Dr. Aouchiche’s reports recited symptoms, these were not opinions that

discussed the nature or severity of her impairments, and did not discuss diagnoses,

prognoses, restrictions, or abilities. For these reasons, Dr. Aouchiche’s treatment

notes do not constitute a medical opinion that the ALJ was required to summarize

and assign a weight to. See Alvarez v. Comm’r of Soc. Sec., No. 20-11721, 2021 WL

777143, at *2 (11th Cir. Mar. 1, 2021) (finding that the ALJ did not err by failing to

assign a weight to the treatment notes of several doctors when their notes failed to

show the claimant’s functional limitations or ability to engage in work related

activities).

Dr. Geller’s findings, which are completely devoid of detail or analysis, have

similar short comings. Dr. Geller’s entire summary consists of two words: “Seizure

Disorder.” (Tr. at 875-79). His recommendation was also minimal: “Neurological

eval [sic].” (Id.). Dr. Geller’s record is clearly devoid of a discussion on the nature,

severity, restrictions, or abilities associated with Plaintiff’s impairments. Thus, the

Court does not find that Dr. Geller’s notes were a medical opinion that the ALJ

needed to summarize and assign a weigh to. See Alvarez, 2021 WL 777143, at *2

(finding that the ALJ did not err by failing to assign a weight to the treatment notes

of several doctors when their notes failed to show the claimant’s functional

limitations or ability to engage in work related activities).

The Court is also unpersuaded by Plaintiff’s citations to Bailey, 802 F. App’x

at 465 and Coppola, 2014 WL 677138, at *5. As an initial matter, the Coppola case

was decided in the United States District Court for the District of New Hampshire,

and as such, is not binding. Moreover, both cases are clearly distinguishable from

the instant case given that they involve an ALJ’s failure to afford weight the record of

a physician that provided an opinion about the claimant’s ability to work or engage

in work related activity. See Bailey, 802 F. App’x at 465 (11th Cir. 2020) (“Here,

where the ALJ made no mention of Dr. Garewal’s opinion that Bailey was unable to

work and failed to specify the weight given to that opinion, we cannot determine

whether the ultimate decision on the merits of the claim is rational and supported by

substantial evidence.”); Coppola v. Colvin, No. 12-cv-492-JL, 2014 WL 677138, at *5

(D.N.H. Feb. 21, 2014) (reversing the ALJ’s decision where the ALJ failed to

address the medical opinion of a doctor who concluded that the claimant was

disabled and unable to do any form of work due to his impairments).

Accordingly, the ALJ did not commit a reversible error by failing to

summarize or assign a weight to Dr. Aouchiche or Dr. Geller’s treatment notes. See

Alvarez, 2021 WL 777143, at *2 (finding that the ALJ did not err by failing to assign

a weight to the treatment notes of several doctors when their notes failed to show the

claimant’s functional limitations or ability to engage in work related activities).

The Court also finds that, even if the ALJ committed an error by failing to

summarize Dr. Aouchiche or Dr. Geller’s treatment notes, the error was harmless

because the ALJ identified an occupation, as a Cleaner/Housekeeping, with

sufficient numbers in the national economy that Plaintiff’s RFC would allow her to

complete without near or far visual acuity, depth perception, color vision, or field of

vision. See DOT § 323.687-014, 1991 WL 672783, (“Near Acuity: Not Present –

Activity or condition does not exist... Far Acuity: Not Present — Activity or

condition does not exist.”); (Tr. at 25). Any error by the ALJ by would not

contradict his ultimate findings, as such, his decision is not due to be remanded.

Denomme, 518 F. App’x at 877-78 (citing Diorio, 721 F.2d at 728).

VI. Conclusion

Upon consideration of the parties’ submissions and the administrative record,

the Court finds that substantial evidence supports the ALJ’s decision. Accordingly,

the Court ORDERS that:

1. The decision of the Commissioner is AFFIRMED Pursuant to sentence

four of 42 U.S.C. § 405(g).

2. The Clerk of Court is directed to enter judgment accordingly, to

terminate any pending motions and deadlines, and to close the case.

DONE AND ORDERED in Fort Myers, Florida on March 18, 2021.

Mac R. MA

United States Magistrate Judge

Copies furnished to:

Counsel of Record

Unrepresented Parties