# Flores v. Commissioner of Social Security

> District Court, M.D. Florida · September 27, 2021

URL: https://www.frixlaw.com/law-library/cases/10108531

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** September 27, 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/10108531

## How later opinions describe it (automated extraction)

- stating that the court must scrutinize the entire record to determine the reasonableness of the Commissioner’s factual findings

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

MARTINA FLORES,

Plaintiff,

v. Case No. 6:20-cv-1080-MCR

ACTING COMMISSIONER OF
THE SOCIAL SECURITY
ADMINISTRATION,

Defendant.
/

MEMORANDUM OPINION AND ORDER1

THIS CAUSE is before the Court on Plaintiff’s appeal of an
administrative decision denying her applications for a period of disability,
disability insurance benefits (“DIB”), and supplemental security income
(“SSI”). Following an administrative hearing on May 16, 2019 at which
plaintiff was represented by a non-attorney representative, the assigned
Administrative Law Judge (“ALJ”) issued a decision finding Plaintiff not
disabled from September 28, 2015, the alleged disability onset date,2

1 The parties consented to the exercise of jurisdiction by a United States
Magistrate Judge. (Docs. 29 & 32.)

2 Although the ALJ stated that the protective date for Plaintiff’s SSI claim
was October 28, 2015 (Tr. 31), the relevant period for her SSI application is the
month in which the application was filed through the date of the ALJ’s decision. 20
C.F.R. §§ 416.330, 416.335.
through June 11, 2019, the date of the decision.3 (Tr. 17-31, 38-62.)
Plaintiff is appealing the Commissioner’s decision and, as she has

exhausted her available administrative remedies, this case is properly before
the Court. Based on a review of the record, the briefs, and the applicable law,
the Commissioner’s decision is REVERSED and REMANDED.
I. Standard

The scope of this Court’s review is limited to determining whether the
Commissioner applied the correct legal standards, McRoberts v. Bowen, 841
F.2d 1077, 1080 (11th Cir. 1988), and whether the Commissioner’s findings
are supported by substantial evidence, Richardson v. Perales, 402 U.S. 389,

390 (1971). “Substantial evidence is more than a scintilla and is such
relevant evidence as a reasonable person would accept as adequate to support
a conclusion.” Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th
Cir. 2004). 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

3 Plaintiff had to establish disability on or before December 31, 2020, her date
last insured, in order to be entitled to a period of disability and DIB. (Tr. 17.)
whole, taking into account evidence favorable as well as unfavorable to the
decision. Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995); accord Lowery

v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (stating that the court must
scrutinize the entire record to determine the reasonableness of the
Commissioner’s factual findings).
II. Discussion

Plaintiff raises two issues on appeal. First, she argues that the ALJ’s
reason for rejecting the opinion of Thomas J. Valente, M.D., Plaintiff’s
treating psychiatrist, that she required an assistive ambulating device due to
limitations in walking “is not based on the correct legal standard or

supported by substantial evidence.” (Doc. 34 at 12.) Specifically, Plaintiff
contends:
Dr. Valente’s opinion that Ms. Flores had a severe limitation in
walking (Tr. 593) clearly conflicts with the ALJ’s finding that she
could perform light work (Tr. 24). The ALJ additionally failed to
account for Dr. Valente’s opinion that Ms. Flores needed an
assistive device in the residual functional capacity assessment
[“RFC”] (Tr. 24). Therefore, the ALJ was required to explain why
his opinion was not adopted.

(Id. at 13.) Second, Plaintiff argues that the ALJ failed to apply the correct
legal standards to the opinions of Drs. James G. Brown and Jorge Pena, State
agency non-examining psychological consultants. (Id. at 13-18.) Defendant
counters that the ALJ applied the proper legal standards and that his
findings are supported by substantial evidence. (Doc. 35.) The Court agrees
with the Plaintiff on the first issue and, therefore, does not address the
remaining issues.

A. The ALJ’s Findings
At the first step of the five-step sequential evaluation process,4 the ALJ
found that Plaintiff had not engaged in gainful activity since the alleged
onset date of September 28, 2015. (Tr. 19.) At step two, the ALJ found

Plaintiff had the following severe impairments: fibromyalgia, migraines,
depressive disorder, anxiety disorder, and posttraumatic stress disorder
(“PTSD”). (Id.) At step three, the ALJ found that Plaintiff did not have an
impairment or combination of impairments that met or medically equaled

one of the listed impairments. (Tr. 21.)
Before proceeding to step four, the ALJ found that Plaintiff had the
RFC to perform a reduced range of light work5 with the following limitations:
[T]he claimant is limited to never climbing ladders, ropes, or
scaffolds, and only occasionally climbing of ramps or stairs,
stooping, kneeling, crouching, crawling, or engaging in activities
requiring balance. She is limited to only occasional exposure to
extreme cold, weather, and hazards, defined as work with
machinery having moving mechanical parts, use of commercial

4 The Commissioner employs a five-step process in determining disability.
See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).

5 By definition, light work involves lifting no more than twenty points at a
time with frequent lifting or carrying of objects weighing up to ten pounds; it
requires a good deal of walking, standing, or sitting most of the time with some
pushing and pulling of arm or leg controls. 20 C.F.R. §§ 404.1567(b), 416.967(b);
SSR 83-10.
vehicles, and exposure to unprotected heights. The claimant is
limited to the performance of simple, routine, and repetitive
tasks, as well as only occasional interaction with the public and
coworkers.

(Tr. 24.) In determining Plaintiff’s RFC, the ALJ stated that he “considered
all symptoms and the extent to which these symptoms can reasonably be
accepted as consistent with the objective medical evidence and other
evidence, based on the requirements of 20 [C.F.R.] [§§] 404.1529 and 416.929
and SSR 16-3p.” (Id.)
The ALJ then discussed Plaintiff’s subjective complaints, including her
reported use of an assistive device for walking due to dizziness and pain,
noting that she presented to the hearing in a wheelchair.6 (Tr. 25.) The ALJ

6 The ALJ summarized Plaintiff’s subjective complaints as follows:
The claimant initially alleged disability due to fibromyalgia,
headaches, depression, and PTSD, as well as asthma . . . . In her
function report, the claimant complained of persistent, severe pain
that causes difficulty with sleeping and daily activities []. She also
reported an inability to focus due to headaches as well as widespread
joint pain in the shoulders, fingers, and toes []. The claimant listed
difficulties with lifting, squatting, bending, standing, reaching,
walking, sitting, kneeling, climbing stairs, memory, completing tasks,
concentration, understanding, following instructions, and using her
hands []. According to the claimant, she is able to walk about five
minutes before needing to rest, she can sit for about thirty minutes,
and she can stand for about five minutes, and she complained of daily
headaches, which have been present all her life, that last two to three
days each []. Moreover, the claimant complained of medication side-
effects including sleepiness []. At [the] hearing, the claimant
complained of ongoing difficulties with pain and [] concentration. She
testified to an inability to sit or stand for long periods. According to
the claimant, she has suffered from headaches almost all her life, and
they are getting worse and do not improve with treatment. She rated
her fibromyalgia pain at a 5 to 7 out of 10 with receipt of [sic]
found that although Plaintiff’s treatment records were generally consistent
with her medically determinable impairments, they were not consistent with

her subjective reports of disabling symptoms and that this suggested that her
symptoms were not as severe as she alleged. (Id.) The ALJ then addressed
the objective medical evidence, in relevant part, as follows:
According to the evidence of record, the claimant has a history of
chiropractic treatment for complaints of headaches prior to the
alleged onset date []. However, during a primary care visit in
early 2016, the claimant was noted to deny any issues with back,
joint, or muscle pain, numbness, dizziness, headaches, or
diminished mental health, and her provider noted intact
musculoskeletal, neurological, and psychiatric examination
findings [].

Following her application filing date, the claimant presented to
her primary care provider in November 2016 with complaints of
fibromyalgia-like symptoms []. Additionally, she admitted to
increased symptoms of depression and anxiety due to personal
and family issues, but she denied any suicidal thoughts or
ideation []. Despite her complaints, according to her provider,
she presented with normal gait, no gross neurological deficits,
normal extremity range of motion, alertness, and full orientation
[]. During a subsequent visit, her provider did note positive
trigger point testing as well as complaints of hot flashes []. For
treatment, she was recommended . . . extra strength Tylenol,
naproxen, and amitriptyline, as well as referred [to] psychology
[for] evaluation [].
. . .

medication and a 10 to 15 out of 10 during a flare[-][up], which occur
very often, according to the claimant. With respect to her depression,
she complained of poor focus and anxiety that causes her to isolate and
cry during the day, despite receipt of treatment. The claimant
presented to [the] hearing in a wheelchair, and she reported use of this
[sic], a cane, and [a] walker due to dizziness and pain. She testified
that she is able to lift up to a gallon of milk.
(Tr. 24-25.)
Following this period, [the] claimant continued with primary care
visits and mental health therapy in late 2016 []. Office visit notes
document complaints of headaches with photophobia and nausea
with incomplete relief with Tylenol and Excedrin []. . . .
Moreover, although the claimant complained of ongoing
widespread pain, her provider noted normal gait and normal
extremity range of motion testing, and the claimant denied any
falls or injury due to her pain complaints []. For treatment, she
continued with receipt of [sic] medication and also received
therapeutic injections in late 2017 [].

Treatment notes from 2018 document similar complaints,
examination findings, and treatment as before []. Eventually, in
November 2018, the claimant was noted to present with [the] use
of a walker for ambulation, at which time she complained of
ongoing headaches with some nausea and dizziness as well [].
However, the following month, she reported improvement with
her headache severity []. Eventually, in March 2019, she
presented for a neurological evaluation for these complaints [].
At that time, she reported suffering from headaches since she
was a child[,] with increase in frequency and duration over the
previous few years []. According to her examiner, the claimant
presented with nonfocal neurological examination, fluent speech,
intact comprehension, normal memory, 5/5 strength in all
extremities, normal finger dexterity, intact sensation, not grossly
ataxic gait, use of [a] cane due to pain, and normal tandem gait [].
Her examiner felt that she was suffering from underlying
migraines complicated by daily headaches related to analgesic
rebound as well as fibromyalgia, depression, and sleep
deprivation []. For treatment, she was recommended for receipt
of [sic] Topamax and discontinuance of analgesics and caffeine [].
During [a] follow-up [appointment] the next month, the claimant
reported decreased frequency in her migraines, improved sleep,
and help with [the] use of Relpax [].

(Tr. 25-26.)
Based on these findings, the ALJ determined that Plaintiff had
functional limitations as a result of her fibromyalgia, migraines, depressive
disorder, anxiety disorder, and PTSD. (Tr. 26.) The ALJ also determined
that, based on the objective evidence, Plaintiff retained the ability to perform

light work with the limitations reflected in the RFC. (Id.) The ALJ
explained, inter alia, that given Plaintiff’s “history of migraines with
dizziness and nausea, widespread pain with positive tender point testing, and
medication side-effects of sleepiness,” Plaintiff was limited to “only occasional

lifting of twenty pounds, as well as never climbing ladders, ropes, or scaffolds,
occasional climbing of ramps or stairs, stooping, kneeling, crouching,
crawling, or engaging in activities requiring balance, and occasional exposure
to extreme cold, weather, and hazards, . . . and exposure to unprotected

heights.” (Id.)
In evaluating the opinion evidence of record, the ALJ noted, in part,
that Plaintiff had been “issued a disability parking placard at the
recommendation of her provider.” (Tr. 28.) However, the ALJ gave the

“issuance of this permit little weight in this determination because it
provide[d] little insight into the claimant’s capacity for work-related tasks.”
(Id.) The ALJ further explained as follows:
As discussed above, despite the claimant’s allegation of
debilitating physical limitations, the evidence of record indicates
that she presented with intact gait, strength, and range of motion
testing on several occasions. Moreover, the claimant’s headache
complaints are longstanding in nature, and she reported
improved symptoms and headache control with receipt of
neurolog[ical] treatment. Despite her use of an ambulation
device and presentation with a wheelchair at [the] hearing, the
evidence of record documents examination findings of intact gait
and strength, and she began use of these devices on her own as
opposed to being prescribed such use by an acceptable medical
source. She also previously denied use of any such device in her
function report.

(Id.) The ALJ found that, “[d]espite her allegations, the record lacks any
evidence that she is so significantly limited, which suggests her limitations
are not as severe as she reported.” (Tr. 28.) “After considering the treatment
record, medical opinion evidence, and the statements made by the claimant,”
the ALJ determined that the RFC assessment adequately accounted for
Plaintiff’s remaining functional capacity. (Tr. 29.)
The ALJ then determined that Plaintiff was unable to perform her past
relevant work, but, considering her age, education, work experience, RFC,
and testimony of the vocational expert (“VE”), there were jobs in significant
numbers in the national economy that Plaintiff could perform, including
cleaner/housekeeper, folder, and mail clerk. (Tr. Tr. 29-30.) Thus, the ALJ
concluded that Plaintiff was not disabled from the alleged onset date through
the date of the decision. (Tr. 31.)

B. Dr. Valente’s Opinion
The Court agrees with Plaintiff that the ALJ failed to properly evaluate
the opinion of Dr. Valente that Plaintiff had severe walking limitations and
required an assistive device and that such error warrants a remand.
Although Defendant counters that the ALJ applied the correct legal
standards in assigning little weight to Dr. Valente’s opinion and that

substantial evidence supports his decision, these arguments are unavailing.
Dr. Valente prepared and signed a Physician/Certifying Practitioner’s
Statement of Certification in support of Plaintiff’s Application for Disabled
Person Parking Permit, dated November 1, 2018. (Tr. 593.) Dr. Valente

indicated that Plaintiff was “a disabled person with a permanent disability[]
that limits [illegible] []her ability to walk 200 feet without stopping to rest.”
(Id.) In terms of Plaintiff’s disability type, Dr. Valente indicated, inter alia,
that Plaintiff was unable “to walk without the use of or assistance from a

brace, cane, crutch, prosthetic device, or other assistive device.” (Id.) Dr.
Valente also indicated that Plaintiff had a “[s]evere limitation in [her] ability
to walk due to an arthritic, neurological, or orthopedic condition.” (Id.)
As Plaintiff argues, the ALJ did not meaningfully address Dr. Valente’s

opinion regarding her walking limitations or need for an assistive device,
which conflicts with the ALJ’s finding that she could perform a limited range
of light work. Instead, the ALJ concluded that the issuance of a handicapped
placard did not “provide insight” into Plaintiff’s work-related limitations. (Tr.

28.) However, this statement in too vague to allow for meaningful review and
is insufficient for the Court to determine whether the ALJ properly evaluated
the opinion of Dr. Valente, a treating physician, particularly in light of the
record as a whole, which documented Plaintiff’s complaints of pain with
movement and ambulation due to fibromyalgia, problems with dizziness,

suffering at least one fall,7 consistent complaints of generalized moderate to
severe pain due to fibromyalgia, ineffective treatment of her fibromyalgia
pain due to adverse reactions to medication,8 and her inability to obtain other
pain treatment due to lack of funds and/or problems with insurance. (See,

e.g., Tr. 603 (noting, on November 15, 2018, that Plaintiff had to discontinue
Lyrica for fibromyalgia due to lower extremity swelling); Tr. 598-99
(treatment note from Dr. Khannia Erif Thomas, Plaintiff’s primary care
physician, dated November 12, 2018, indicating “Patient uses walker to

ambulate and states that fibromyalgia affects her daily” and referring
Plaintiff to physical therapy for evaluation and treatment as she was using a

7 Plaintiff also reported feeling dizzy and almost falling in February of 2015,
before the alleged onset date. (See Tr. 587 (chiropractic treatment note dated
February 18, 2015 indicating Plaintiff reported that she “slipped and nearly fell (felt
dizzy)” but her husband caught her).)

8 After evaluating Plaintiff on March 14, 2019, Plaintiff’s neurologist, Eric
Aragon, M.D., discontinued her analgesics due to headaches, which were
incidentally being used to treat her fibromyalgia pain. (Tr. 663.) Dr. Aragon noted
as follows: “She seems to suffer from underlying migraine complicated by a constant
daily headache related to analgesic rebound. In addition[,] fibromyalgia and
depression as well as sleep deprivation contributes to her daily headache. After my
discussion [with her], we agreed to discontinue all analgesics . . . .” (Id.) After a
follow-up appointment on April 16, 2019, Dr. Aragon noted that Plaintiff’s
migraines had decreased in frequency, she reported “she is sleeping somewhat
better,” and that Relpax was helping, but “[s]he continues to be severely affected by
fibromyalgia” and “ambulates with a walker due to fibromyalgia pain.” (Tr. 664.)
walker); Tr. 601 (treatment note from Dr. Thomas dated November 1, 2018,
observing Plaintiff was “using a walker”); Tr. 606 (treatment note from Dr.

Thomas dated September 27, 2018 indicating that Plaintiff reported she was
in a lot of pain with migraines and body aches, was experiencing a
fibromyalgia flare-up, had edema on Lyrica, had a lot of muscle spasms, her
pain was 8/10, and observing Plaintiff looked uncomfortable, instructing

Plaintiff to stop taking Lyrica and naproxen, and noting positive findings for
joint pain and myalgias); Tr. 611-12 (treatment note from Dr. Thomas dated
May 10, 2018, noting that Plaintiff reported “pain all over as a result of
falling on her kitchen floor (linoleum) yesterday” and that the fall

exacerbated her pain, which was rated as 10/10); Tr. 641 (treatment note
dated April 10, 2017 indicating that Plaintiff’s pain was constant, but was
better with Tylenol, naproxen, and nortriptyline, but was not completely
relieved and she had to take very high doses, observing normal gait but

noting that her pain was worse with movement, and referring Plaintiff to
pain medicine for fibromyalgia evaluation and treatment); Tr. 513 (treatment
notes from Dr. Paul Jueng dated November 30, 2016, noting Plaintiff
“persists with diffuse fibromyalgia pain which worsens when she does not

sleep well” and “is not able to afford follow-up with pain specialist”); Tr. 595
(treatment note dated September 24, 2015, indicating Plaintiff complained of
dizziness). But see Tr. 636 (treatment note dated May 1, 2017 indicating that
Plaintiff denied any injury and falls, was referred to pain management, but
noting that she could not afford it).

Based on the foregoing, the ALJ’s reason for rejecting the opinion of Dr.
Valente was vague and unsupported by substantial evidence. Therefore, the
undersigned finds that this matter is due to be remanded with instruction for
the ALJ to expressly address Dr. Valente’s opinion regarding Plaintiff’s

walking limitations and need for an assistive device. In light of this
conclusion, the Court need not address Plaintiff’s remaining arguments. See
Jackson v. Bowen, 801 F.2d 1291, 1294 n.2 (11th Cir. 1986) (per curiam);
Freese v. Astrue, 2008 WL 1777722, at *3 (M.D. Fla. Apr. 18, 2008).

Accordingly, it is ORDERED:
1. The Commissioner’s decision is REVERSED and REMANDED
for further proceedings consistent with this Order, pursuant to sentence four
of 42 U.S.C. § 405(g) with instructions to the ALJ to conduct the five-step

sequential evaluation process in light of all the evidence, including the
opinion evidence from treating, examining, and non-examining sources,
conduct any further proceedings deemed appropriate, and to develop a
complete record.

2. The Clerk of Court is directed to enter judgment accordingly,
terminate any pending motions, and close the file.
3. In the event that benefits are awarded on remand, any § 406(b)
or § 1883(d)(2) fee application shall be filed within the parameters set forth
by the Order entered in In re: Procedures for Applying for Attorney’s Fees
Under 42 U.S.C. $§ 406(b) & 13883(d)(2), Case No.: 6:12-mce-124-Orl-22 (M.D.
Fla. Nov. 13, 2012). This Order does not extend the time limits for filing a
motion for attorney’s fees under the Equal Access to Justice Act, 28 U.S.C. §
2412.
DONE AND ORDERED at Jacksonville, Florida, on September 27,
2021.

UNITED STATES MAGISTRATE JUDGE

Copies to:
Counsel of Record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10108531. Public record. Not legal advice.