# Garcia v. Commissioner of Social Security

> District Court, M.D. Florida · March 18, 2021

URL: https://www.frixlaw.com/law-library/cases/10107155

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** March 18, 2021
- **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/10107155

## How later opinions describe it (automated extraction)

- holding that remand is not warranted unless an error shows “unfairness” or “clear prejudice”

## Opinion text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10107155. Public record. Not legal advice.