The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JAMES RICHARD BROWN,
Plaintiff,
v. Case No: 2:20-cv-446-JES-MRM
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
OPINION AND ORDER
This matter is before the Court on consideration of
Magistrate Judge Mac R. McCoy’s Report and Recommendation (Doc.
#27), filed on June 29, 2021, recommending that the Decision of
the Commissioner be affirmed. Plaintiff filed Objections to the
Report and Recommendation (Doc. #29) on July 13, 2021.
1. ALJ Findings and Conclusions
Plaintiff is 52 years old, approaching advanced age, with at
least a high school education who can communicate in English.
(Doc. #22-2, Tr. 29.) Plaintiff is 5’9” and weighs about 201 to
208 pounds with a body mass index of 30. (Id., Tr. 24.) On July
5, 2017, plaintiff filed an application for a period of disability
and disability insurance benefits alleging an onset date of July
1, 2017. (Id., Tr. 17.) The Administrative Law Judge (ALJ) found
that plaintiff met the insured status requirements through
December 31, 2021. (Id., Tr. 19.)
At step one, the ALJ determined that plaintiff has not engaged
in substantial gainful activity since July 1, 2017, the alleged
onset date. (Id., Tr. 19.) At step two, the ALJ determined that
plaintiff had the following impairments that significantly limit
the ability to perform basic work activities: Plaintiff has right
eye blindness, encephalopathy status post trauma, status post
traumatic brain injury, status post remote left ankle fracture,
obesity, and neurocognitive disorder. (Id., Tr. 19.) At step
three, the ALJ found that plaintiff did not have an impairment or
combination of impairments that met or medically equaled the
severity of one of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1. (Id., Tr. 20.)
The ALJ found that plaintiff had the residual functional
capacity to:
lift and/or carry 20 pounds occasionally and
10 pounds frequently; sit for six hours in an
eight hour work day; stand and/or walk for six
hours in an eight hour workday; no operation
of foot controls; occasional climbing of ramps
or stairs; but may never climb ladders, ropes,
or scaffolds; occasional balancing; frequent
stooping, kneeling, and crouching; no
crawling; no commercial driving; no exposure
to hazardous machinery or unprotected heights;
limited to occupations that do not require
depth perception and binocular vision; able to
understand, remember, and carryout simple
tasks, low stress work defined as only
occasional decision-making and only
occasional changes in work setting; occasional
interaction with coworkers and supervisors;
and no interaction except incidental with the
public.
Id., Tr. 22.) The ALJ determined that plaintiff was unable to
perform any past relevant work as a store laborer (medium) or cable
line technician (heavy). The vocational expert testified that
plaintiff would be able to perform the requirements of a marker
(light), office helper (light), or routing clerk (light). As a
result, the ALJ determined that plaintiff was not “not disabled”.
(Id., Tr. 30.) At step 5, having considered plaintiff’s age,
education, work experience, and residual functional capacity, the
ALJ found there were jobs in the national economy that plaintiff
could perform. (Id., Tr. 29.)
2. Magistrate Judge’s Recommendations
Plaintiff raised three issues on appeal: (1) whether the ALJ
properly considered the opinion of the state agency physician, Dr.
Arkin, and presented a complete hypothetical question to the
vocational expert; (2) whether the ALJ properly resolved the
apparent inconsistencies between the vocational expert and the
DOT; and (3) whether the Appeals Council properly denied
plaintiff’s request for review in light of the evidence concerning
plaintiff’s left foot injury submitted to it.
As to the first issue, the Magistrate Judge found that the
ALJ properly weighed the opinion of Dr. Arkin as unpersuasive after
determining that it was inconsistent with the findings of Dr.
Driscoll, Dr. Wright, and Dr. Goodwin. (Doc. #27, pp. 10-11.)
The Magistrate Judge found that the ALJ considered the recommended
limitation but chose not to adopt it. The Magistrate Judge noted
that even if the ALJ found the opinion persuasive, he is not
required to adopt every limitation verbatim if a reason is provided
for rejecting the limitation. (Id., p. 11.)
Here, although the ALJ did not present a
hypothetical that included a limitation to
avoid a moderate noise level, the ALJ was not
required to include limitations that he found
to be unsupported by the record. See
Forrester, 455 F. App’x at 903. As discussed
above, the Undersigned finds no error with the
ALJ’s evaluation of the record evidence,
including the ALJ’s decision to not include a
noise limitation. To the extent Plaintiff
disagrees with the ALJ’s interpretation of
that evidence, that is not a ground for
remand. See Sarria v. Comm’r of Soc. Sec., 579
F. App’x 722, 724 (11th Cir. 2014).
(Id., pp. 12-13.) The Magistrate Judge also found that any error
would be harmless because substantial evidence supports the ALJ’s
ultimate decision. (Id.) The Magistrate Judge rejected
plaintiff’s argument that the position of routing clerk was
obsolete and found that even if reduced by 95% to account for any
potential finding of obsoleteness, the number of available routing
clerk positions would still be significant. (Id., pp. 15-16.)
As to the second issue, the Magistrate Judge found that the
three occupations identified by the ALJ required a reasoning level
of two. The Magistrate Judge rejected the argument that jobs with
a DOT reasoning level above level one conflict with plaintiff’s
limitation to “understand, remember, and carryout simple tasks.”
Because the Undersigned determines that no
apparent conflict exists between a limitation
to “understand, remember, and carryout simple
tasks” and a reasoning level two occupation,
the Undersigned finds that Plaintiff could
perform the work of a marker, office helper,
or routing clerk and, therefore, that the ALJ
did not err. Thus, the Undersigned recommends
that the decision be affirmed on this issue.
(Id., p. 21.)
As to the third issue, the Magistrate Judge noted that “[t]o
be considered new, the evidence must relate to the period on or
before the date of the administrative law judge hearing decision”,
or July 5, 2019. (Id., p. 25.) Plaintiff contended that a 2006
surgery and a 2008 examination by the surgeon regarding a left
foot injury and a permanent range of motion restriction in the
left ankle were submitted to the Appeals Council as new evidence,
but review was erroneously denied. Plaintiff concedes that he
worked in 2006 and 2008 despite the injury but it was “short-
lived” and part-time. (Id., pp. 21-23.) The Magistrate Judge
found that the evidence is considered new, but not material because
the ALJ was aware of the injury and surgery and considered both in
determining the residual functional capacity. (Id., p. 26.) The
Magistrate Judge, noted:
In so doing, the ALJ specifically noted that
“after the alleged onset of disability date,
the medical evidence of record contains very
little evidence of any positive findings on
objective examination or other evidence to
establish that the claimant is as limited as
alleged.”
(Id., p. 26.) The new evidence predates the alleged disability
onset date by at least 9 years and therefore cannot contradict the
ALJ’s findings and would not have changed the “administrative
outcome”. (Id., p. 27.)
3. Review of Objections
The Court reviews the Commissioner’s decision to determine if
it is supported by substantial evidence and based upon proper legal
standards. Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158
(11th Cir. 2004) (citing Lewis v. Callahan, 125 F.3d 1436, 1439
(11th Cir. 1997)). Substantial evidence is more than a scintilla
but less than a preponderance and is such relevant evidence as a
reasonable person would accept as adequate to support a conclusion.
Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005) (citing
Crawford, 363 F.3d at 1158-59). Even if the evidence
preponderates against the Commissioner’s findings, the Court must
affirm if the decision reached is supported by substantial
evidence. Crawford, 363 F.3d at 1158-59 (citing Martin v.
Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)). The Court does
not decide facts anew, make credibility judgments, reweigh the
evidence, or substitute its judgment for that of the Commissioner.
Moore, 405 F.3d at 1211 (citing Bloodsworth v. Heckler, 703 F.2d
1233, 1239 (11th Cir. 1983)); Dyer v. Barnhart, 395 F.3d 1206,
1210 (11th Cir. 2005)(citing Phillips v. Barnhart, 357 F.3d 1232,
1240 n.8 (11th Cir. 2004)). The Court reviews the Commissioner’s
conclusions of law under a de novo standard of review. Ingram v.
Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1260 (11th Cir. 2007)
(citing Martin, 894 F.2d at 1529).
A. Issue One
Plaintiff argues that the ALJ failed to articulate and
properly consider the opinion of Dr. Arkin regarding plaintiff’s
limitations with noise. (Doc. #29, p. 3.) Plaintiff argues that
inclusion of a noise limitation in the residual functional capacity
based on the opinion of a State agency doctor would have required
vocational expert testimony with the limitation added to the
hypothetical. (Id., p. 5.)
The ALJ did not specifically identify the opinion of Dr.
Arkin, but the ALJ did not find persuasive:
the opinions of the state agency reviewing
medical consultants at initial and
reconsideration who opined that the claimant
has no exertional limitations, frequent
postural limitations except for occasional
balancing, environmental limitations, and
limited right near acuity, far acuity, depth
perception, and field of vision due to right
eye blindness. (Exhibits 1A; 3A). These
opinions are not consistent with the medical
evidence of record because the claimant is
more limited than assessed particularly with
regard to his vision which limits him to light
work, as defined above, with respect to
lifting, carrying, depth perception, and
balance limitations. Despite these assessed
limitations, the objective physical
examination findings were generally normal by
the claimant’s treating neurologist, Dr.
Driscoll, and the claimant’s primary care
provider Dr. Wright, as above. (Exhibits 13F;
23F; 30F). These opinions are also
inconsistent with the opinion of the
consultative ophthalmologist Dr. Goodwin, as
below, which is more consistent with the
performance of light work rather than work at
a higher exertional level. (Exhibit 17F/G).
Accordingly, I do not find these opinions
persuasive.
(Doc. #22-2, Tr. 27-28.) The ALJ credited Dr. Wright’s physical
examination findings in Exhibit 23F, which included a notation
about ears as “Denied: Discharge, Dizziness. Hearing aid. Hearing
Impairment Infections. Pain. Ringing in Ears.” (Doc. #22-14, Tr.
1223.) The ALJ credited the opinions that suggested light work,
and not the higher exertional levels suggested by the state agency
doctors. As noted by the Magistrate Judge, at least one of the
positions has a noise level requirement of quiet. (Doc. #27, p.
13 citing Doc. #25-5, p. 6.) The Court overrules plaintiff’s
objection.
B. Issue Two
Plaintiff argues that the ALJ specifically found the State
agency opinions of moderate limitations to be persuasive, yet the
limitations were not included in the assessment. (Doc. #29, pp.
5-6.) Plaintiff argues that “if the ALJ believed a limitation to
simple tasks addressed the moderate limitations with understanding
and remembering detailed instructions, then the jobs which require
dealing with detailed instructions would be inconsistent with the
ALJ’s RFC.” (Id., p. 6.)
The hypothetical included “mentally able to understand,
remember, and carry-out simple instructions; low-stress work
defined as only occasional decision-making, only occasional
changes in the work setting, occasional interaction with co-
workers and supervisors, no interaction with the public except
incidental; and limited to jobs that do not require depth
perception.” (Doc. #22-2, Tr. 53.) The vocational expert
suggested several jobs that would be available: Marker, Office
helper, and a routing clerk. Each is light with a specific
vocational preparation of 2, and a reasoning level of 2, with the
ability to apply “commonsense understanding to carry out detailed
but uninvolved written or oral instructions. Deal with problems
involving a few concrete variables in or from standardized
situations.” The second hypothetical added physical limitations
and the vocational expert testified that the work would be
sedentary. When counsel asked if the jobs could be performed with
a reasoning level of 1, the response was “No.” (Id., Tr. 56.)
This was also true for the proposed addition of “the individual
would forget instructions daily.” (Id.) The Eleventh Circuit
recently found that there is no apparent conflict between an
ability to “understand, carry-out, and remember simple
instructions”, and positions with a reasoning level of two.
Buckwalter v. Acting Comm'r of Soc. Sec., 997 F.3d 1127, 1134 (11th
Cir. 2021). Plaintiff’s objection is overruled.
C. Issue Three
Plaintiff argues that the evidence submitted to the Appeals
Council about plaintiff’s left foot problems was new and material
because it showed an ankle fusion, no subtalar joint motion, and
40-degree left ankle motion without pain. (Doc. #39, pp. 6-7.)
Plaintiff argues that the evidence disputes the accuracy of Dr.
Wright’s notes, the primary care physician, which were relied upon
by the ALJ. (Id., p. 7.)
The ALJ discussed plaintiff’s “status post remote left ankle
fracture and subsequent repair,”
After the alleged onset of disability date,
the medical evidence of record contains very
little evidence of any positive findings on
objective examination or other evidence to
establish that the claimant is as limited as
alleged. (Exhibit 24F/2). The residual
functional capacity finding’s limitation to
light work with no operation of foot controls,
no commercial driving, and occasional
balancing fully account for any residual left
ankle associated allegations or limitations.
Despite the claimant’s balance related
allegations and complaints, there is no
evidence that a cane or an assistive device is
medically necessary or used by the claimant.
The claimant testified he did not require a
cane. (Hearing Testimony). Furthermore, the
claimant’s treating neurologist, Dr.
Driscoll, found that the claimant had a normal
gait and that his subtle balance issues are
not evident on examination. (Exhibit 30F/4).
Moreover, Dr. Wright found the claimant to
have a normal gait as well. (Exhibit 23F/9).
Accordingly, the physical examinations in the
medical evidence of record strongly support
that the claimant can perform light work
consistent with the residual functional
capacity finding.
(Doc. #22-2, Tr. 26.) The ALJ also considered plaintiff’s
subjective testimony:
Q. Do you have any difficulty sitting?
A. 20 to 30 minutes, and then my ankle will
lock up, and it’s painful once I get up,
because there’s a limited range of motion to
stretch that back out, and the more I do it,
the more of an issue it becomes.
Q. Which foot is that?
A. Left – left foot, left ankle.
Q. Do you have difficulties with balance?
A. Yes.
Q. How frequently do you feel off-balance?
A. I can take on any task ten to 15 minutes,
and then it’s a deliriousness, equilibrium
issue. I can walk for a half hour, but that’s
– that’s about it, then I have to sit.
Q. What do you mean when you say
deliriousness?
A. My head, kind of, spinning around being
dizzy.
Q. Okay. Do you have any depth perception?
A. I do, but I have issues with – with how
close something actually is.
. . . .
Q. And, why can’t you push your lawn mower
anymore?
A. I can go ten minutes, and my head’s spinning
and my ankle’s hurting, and I’ll go all week
– it’ll take me a week to cut my lawn. And, by
the time I get to the end, it’s time to do the
end again; I have to stop every ten minutes/15
minutes to take a break.
Q. Have you had any treatment for your ankle?
A. Not since it happened, and that was a two
to three year process because I had two
surgeries, hyperbaric treatment, wound care.
And, what he had to do is take a piece of bone
from under my knee, and basically fuse my
ankle –
Q. Okay.
A. – so it’s limited in its range, and kind of
like everything I deal with, my head injuries
now, I was basically told that’s as good as
it’s going to get – that was –
Q. So, it was your left ankle?
A. Yes.
Q. Okay.
A. And, that’s as good as it’ll ever get.
Q. You also talked about balance issues; do
you have to use a cane?
A. No.
(Doc. #22-2, Tr. 44-45, 48-49.) The Appeals Council denied
plaintiff’s request for review finding that the reasons for
disagreement and the exhibits did not provide a basis for changing
the ALJ’s decision. (Doc. #22-2, p. 2.)
“The ALJ must clearly articulate the reasons for giving less
weight to the opinion of a treating physician, and the failure to
do so is reversible error.” Lewis v. Callahan, 125 F.3d 1436,
1440 (11th Cir. 1997). In this case, the ALJ clearly articulated
the weight given to the various opinions of the state agency
physicians and treating physicians and why. Plaintiff’s objection
is overruled.
After an independent review, the Court agrees with the
findings and recommendations in the Report and Recommendation.
Accordingly, it is now
ORDERED:
1. The Report and Recommendation (Doc. #27) is accepted and
adopted by the Court.
2. Plaintiff's Objections (Doc. #29) are OVERRULED.
3. The Decision of the Commissioner of Social Security is
affirmed.
4, The Clerk of the Court shall enter judgment accordingly
and close the file.
DONE and ORDERED at Fort Myers, Florida, this 27th day
of July 2021.
\ P< p
E. STEELE
Sq IOR UNITED STATES DISTRICT JUDGE
Copies:
Hon. Mac R. McCoy
U.S. Magistrate Judge
Counsel of Record