Stockton v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

KELLEY ROBERT STOCKTON,

Plaintiff,

v. Case No: 6:20-cv-1249-LRH

COMMISSIONER OF SOCIAL

SECURITY

Defendant.

MEMORANDUM OF DECISION1

Kelley Robert Stockton (“Claimant”) appeals the final decision of the

Commissioner of Social Security (“the Commissioner”) denying his application for

disability insurance benefits. Doc. No. 1. Claimant raises two arguments

challenging the Commissioner’s final decision, and, based on those arguments,

requests that the matter be reversed and remanded for further administrative

proceedings. Doc. No. 22, at 26, 41, 51. The Commissioner asserts that the

decision of the Administrative Law Judge (“ALJ”) is supported by substantial

evidence and that the final decision of the Commissioner should be affirmed. Id.

1 The parties have consented to the exercise of jurisdiction by a United States

Magistrate Judge. See Doc. Nos. 15, 19–20.

at 51. For the reasons stated herein, the Commissioner’s final decision is

AFFIRMED.

I. PROCEDURAL HISTORY.

On May 18, 2016, Claimant filed an application for disability insurance

benefits, alleging a disability onset date of January 1, 2014. R. 31, 124.2 Claimant’s

application was denied initially and on reconsideration, and he requested a hearing

before an ALJ. R. 146–48, 151–55, 157–61. Hearings were held before the ALJ on

February 4, 2019 and June 17, 2019, during which Claimant was represented by an

attorney. R. 52–90. Claimant testified at the first hearing, and Claimant, a

medical expert, and a vocational expert (“VE”) testified at the second hearing. Id.

After the hearing, the ALJ issued an unfavorable decision finding that

Claimant was not disabled. R. 31–45. Claimant sought review of the ALJ’s

decision by the Appeals Council. R. 256–58, 376–81. On May 18, 2020, the

Appeals Council denied the request for review. R. 1–6. Claimant now seeks

review of the final decision of the Commissioner by this Court. Doc. No. 1.

2 Claimant filed a previous application for disability insurance benefits on February

8, 2011, which was denied. See R. 91–98. That previous application is not at issue in this

appeal.

II. THE ALJ’S DECISION.3

After careful consideration of the entire record, the ALJ performed the five-

step evaluation process as set forth in 20 C.F.R. § 404.1520(a). R. 31–45.4 The ALJ

found that Claimant last met the insured status requirements of the Social Security

Act on December 31, 2016. R. 33. The ALJ also found that Claimant had not

engaged in substantial gainful activity during the period from his alleged onset date

of January 1, 2014, through his date last insured. Id. The ALJ concluded that,

through the date last insured, Claimant suffered from the following severe

impairments: degenerative disc disease of the lumbar and cervical portions of the

spine, and osteoarthritis of the left knee status post arthroscopic surgery. Id.5

3 Upon a review of the record, counsel for the parties have adequately stated the

pertinent facts of record in the Joint Memorandum. Doc. No. 22. Accordingly, the Court

adopts those facts included in the body of the Joint Memorandum by reference without

restating them in entirety herein.

4 An individual claiming Social Security disability benefits must prove that he or

she is disabled. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005) (citing Jones v. Apfel,

190 F.3d 1224, 1228 (11th Cir. 1999)). “The Social Security Regulations outline a five-step,

sequential evaluation process used to determine whether a claimant is disabled: (1)

whether the claimant is currently engaged in substantial gainful activity; (2) whether the

claimant has a severe impairment or combination of impairments; (3) whether the

impairment meets or equals the severity of the specified impairments in the Listing of

Impairments; (4) based on a residual functional capacity (‘RFC’) assessment, whether the

claimant can perform any of his or her past relevant work despite the impairment; and (5)

whether there are significant numbers of jobs in the national economy that the claimant

can perform given the claimant’s RFC, age, education, and work experience.” Winschel v.

Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (citing Phillips v. Barnhart, 357 F.3d

1232, 1237 (11th Cir. 2004); 20 C.F.R. §§ 404.1520(a)(i)–(v), 416.920(a)(i)–(v)).

5 The ALJ found that Claimant’s ADHD and various psychiatric diagnoses in the

The ALJ concluded that Claimant did not have an impairment or combination of

impairments that met or equaled a listed impairment in 20 C.F.R. Part 404, Subpart

P, Appendix 1. R. 37–38.

Based on a review of the record, the ALJ found that Claimant had the residual

functional capacity (“RFC”), through the date last insured, to perform light work as

defined in the Social Security regulations,6 except:

[H]e was limited from lifting/carrying more than 10 pounds

occasionally and less than 10 pounds frequently. He remained able to

stand/walk 4 hours total in an 8-hour day. He was able to sit for at

least 6 hours of an 8-hour day. He would not need to be off task to

shift positions every hour. He needed to avoid climbing of ladders,

ropes, and scaffolds, but he was frequently able to climb ramps and

stairs. He should avoid dangerous machinery and avoid

concentrated exposure to vibrations. He should not kneel or crawl.

He can frequently stoop and crouch.

R. 39.

record were not severe impairments. See R. 34–37.

6 The social security regulations define light work to include:

lifting no more than 20 pounds at a time with frequent lifting or carrying of

objects weighing up to 10 pounds. Even though the weight lifted may be very

little, a job is in this category when it requires a good deal of walking or

standing, or when it involves sitting most of the time with some pushing and

pulling of arm or leg controls. To be considered capable of performing a full

or wide range of light work, you must have the ability to do substantially all

of these activities. If someone can do light work, we determine that he or she

can also do sedentary work, unless there are additional limiting factors such

as loss of fine dexterity or inability to sit for long periods of time.

20 C.F.R. § 404.1567(b).

After considering the record evidence, Claimant’s RFC, and the testimony of

the VE, the ALJ found that, through the date last insured, Claimant was capable of

performing past relevant work as a web site developer/computer programmer,

finding that such work did not require the performance of work-related activities

precluded by Claimant’s RFC. R. 44–45. Accordingly, the ALJ concluded that

Claimant was not disabled at any time from January 1, 2014 (the alleged onset date)

through December 31, 2016 (the date last insured). R. 45.

III. THE APPEALS COUNCIL.

Claimant requested review of the ALJ’s decision by the Appeals Council. R.

256–57, 376–81. Claimant submitted to the Appeals Council a Physical Restrictions

Evaluation form completed by Gary Weiss, M.D., Claimant’s treating neurologist,

as well as medical records from Dr. Weiss from October 1, 2019 through October 17,

2019, all of which were not before the ALJ. R. 8–12, 19–27.

On May 18, 2020, the Appeals Council denied the request for review, stating,

in pertinent part as follows:

You submitted medical evidence from Gary Weiss, M.D., dated

October 1, 2019 through October 17, 2019 (9 pages) and an opinion from

Gary Weiss, M.D., dated October 23, 2019 (7 pages). The

Administrative Law Judge decided your case through December 31,

2016. This additional evidence does not relate to the period at issue.

Therefore, it does not affect the decision about whether you were

disabled beginning on or before December 31, 2016.

R. 2. This appeal follows.

IV. STANDARD OF REVIEW.

Because Claimant has exhausted his administrative remedies, the Court has

jurisdiction to review the decision of the Commissioner pursuant to 42 U.S.C.

§ 405(g), as adopted by reference in 42 U.S.C. § 1383(c)(3). The scope of the Court’s

review is limited to determining whether the Commissioner applied the correct

legal standards and whether the Commissioner’s findings of fact are supported by

substantial evidence. Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir.

2011). The Commissioner’s findings of fact are conclusive if they are supported by

substantial evidence, 42 U.S.C. § 405(g), which is defined as “more than a scintilla

and is such relevant evidence as a reasonable person would accept as adequate to

support a conclusion.” Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997).

The Court must view the evidence as a whole, taking into account evidence

favorable as well as unfavorable to the Commissioner’s decision, when determining

whether the decision is supported by substantial evidence. Foote v. Chater, 67 F.3d

1553, 1560 (11th Cir. 1995). The Court may not reweigh evidence or substitute its

judgment for that of the Commissioner, and, even if the evidence preponderates

against the Commissioner’s decision, the reviewing court must affirm if the decision

is supported by substantial evidence. Bloodsworth v. Heckler, 703 F.2d 1233, 1239

(11th Cir. 1983).

V. ANALYSIS.

In the Joint Memorandum, which the Court has reviewed, Claimant raises

two assignments of error: (1) the ALJ erred in his consideration of the medical

opinions of record, in particular those of Dr. Jay Olsson, D.O., Claimant’s treating

pain management specialist; and (2) the Appeals Council erred in improperly

rejecting new and material evidence submitted, in the form of treatment notes and

opinions from treating neurologist, Dr. Gary Weiss, M.D. Doc. No. 22.

Accordingly, these are the only issues that the Court will address.

A. Dr. Olsson.

An individual claiming Social Security disability benefits must prove that he

or she is disabled. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005) (citing

Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999)). At the fourth step of the

sequential evaluation process, the ALJ must determine Claimant’s RFC. Phillips v.

Barnhart, 357 F.3d 1232, 1238 (11th Cir. 2004). “[T]he regulations define RFC as that

which an individual is still able to do despite the limitations caused by his or her

impairments,” which includes consideration of “all the relevant medical and other

evidence in the case.” Id. (citations and quotations omitted).

In determining a claimant’s RFC, the ALJ must consider all relevant evidence,

including the medical opinions of treating, examining, and non-examining medical

sources. See 20 C.F.R. § 404.1545(a)(3). The ALJ must consider a number of factors

when weighing medical opinions, including: (1) whether the physician examined

the claimant; (2) the length, nature, and extent of the physician’s relationship with

the claimant; (3) the medical evidence supporting the physician’s opinion; (4) how

consistent the physician’s opinion is with the record as a whole; and (5) the

physician’s specialization. Id. § 404.1527(c).7

A treating physician’s opinion must be given substantial or considerable

weight, unless good cause is shown to the contrary. See id. § 404.1527(c)(2) (giving

controlling weight to the treating physician’s opinion unless it is inconsistent with

other substantial evidence). The ALJ must state the weight assigned to each

medical opinion, and articulate the reasons supporting the weight assigned.

Winschel, 631 F.3d at 1179. The failure to state the weight with particularity or

articulate the reasons in support of the assigned weight may prevent the Court from

determining whether the ALJ’s ultimate decision is rational and supported by

substantial evidence. Id.

As discussed above, Claimant’s first assignment of error concerns the ALJ’s

consideration of the opinions of Dr. Olsson, Claimant’s treating pain management

specialist. Doc. No. 22, at 26–34. On January 25, 2019, Dr. Olsson completed a

7 Although the SSA regulations have been amended effective March 27, 2017, the

new regulations apply only to applications filed on or after that date. See 20 C.F.R. §§

404.1520c, 416.920c. Because Claimant filed his application prior to March 27, 2017, the

rules in 20 C.F.R. § 404.1527 govern here.

Medical Questionnaire. Doc. No. 755–57. Dr. Olsson opined that since April 15,

2011, Claimant could lift or carry a maximum of twenty (20) pounds occasionally

and that Claimant could stand/walk only 2 hours per 8-hour workday, citing an

MRI demonstrating degenerative changes at L4-5, decreased strength in the right

hip flexors, and stenosis. R. 755. Dr. Olsson further opined that Claimant could

sit only approximately 5 hours in an 8-hour workday, relying on the MRI findings,

as well as physical findings on examination and EMG findings. R. 756. Dr.

Olsson also opined that Claimant could never climb, balance, kneel, or crawl, and

that he could only occasionally stoop and crouch, and that Claimant had limitations

in pushing, pulling, twisting, and bending. R. 756. Dr. Olsson further opined that

Claimant’s impairments and treatment would cause him to be absent from work

four or more days per month, again citing MRI and EMG findings in support. Id.

In the decision, the ALJ discussed Dr. Olsson’s medical records relevant to

the period at issue regarding Claimant’s back, knee, neck, shoulder, and bilateral

foot pain. R. 40, 41–42. As it relates to Dr. Olsson’s opinions on the Medical

Questionnaire, the ALJ stated as follows:

On January 25, 2019, Jay Olsson, DO filled out a form on behalf of the

claimant (Exhibit B25F). He noted that the claimant could lift 20

pounds occasionally (Id at 1 ). The claimant had no impairment for

reaching, handling, feeling [fingering was left off the form] (Id at 2).

Dr. Olsson relied upon EMG findings. There are none within the

record. His checks and comments are not support be his own notes.

As noted above, he observed the claimant to present with full strength,

no pain on palpation, no muscle spasm, and reported negative straight

leg raise testing (Exhibit B11F/3, 8, 21, 35, 40; Exhibit Bl2F/3; Exhibit

B21F/38). While he noted an unsteady gait, he consistently observed

the claimant to pace about the examination room. Dr. Olsson did not

document complaints of severe pain. Rather, he noted mild to

moderate symptoms that waxed and waned at approximately 3-4/10

over the years. His opinions are not supported by the normal

examination findings of other providers, nor the testimony of Dr.

Lorber. Accordingly, the undersigned gives this form little weight.

R. 43.

Thus, the ALJ gave Dr. Olsson’s opinions little weight for the following

reasons: (1) Dr. Olsson relied on EMG findings that were not in the record; (2) Dr.

Olsson’s opinions were not supported by/inconsistent with his own treatment

notes; and (3) Dr. Olsson’s opinions were not supported by the normal examination

findings of other providers nor Dr. Lorber’s testimony. Id.

In the Joint Memorandum, Claimant argues that the ALJ erred in giving little

weight to Dr. Olsson’s opinions as unsupported by his treatment notes because,

according to Claimant, the ALJ misstated the facts. Doc. No. 22, at 28–29. In

particular, the ALJ stated that Dr. Olsson relied on EMG findings, but then

incorrectly stated that there were “none within the record,” as several test results in

the record demonstrate. Id. at 29 (citing R. 43, 694–95, 712). According to

Claimant, the ALJ also arbitrarily pointed to several normal findings in Dr. Olsson’s

treatment notes, while failing to consider abnormal findings reflected therein. Id.

at 29–31.8 And although the ALJ states that Dr. Olsson’s opinions are not

supported by normal examination findings of other providers, the ALJ never

specifies what other normal examination findings he means. Id. at 31. Finally,

Claimant contends that the ALJ erred in giving little weight to Dr. Olsson’s opinions

by crediting the opinions of the non-examining medical expert Dr. Lorber, id. at 31–

32, and those of two state agency non-examining psychologists, id. at 33.

The Commissioner, on the other hand, contends that the ALJ gave good cause

reasons supported by substantial evidence for giving Dr. Olsson’s opinions little

weight. Id. at 34–40. The Commissioner concedes that the ALJ erred in stating

that there were no EMG findings in the record, as the record contains EMG testing

and findings by Dr. Olsson (R. 693–95, 712–21), but, according to the Commissioner,

“the ALJ’s oversight is harmless because the ALJ did not rely solely on that reason

for giving Dr. Olsson’s opinion little weight.” Id. at 37. Moreover, according to

the Commissioner, because the ALJ gave good cause reasons for giving little weight

8 For example, Claimant cites MRI findings showing degenerative changes at L4-5,

a clinical exam finding decreased strength in the right hip flexors, and stenosis (R. 755);

antalgic unsteady gait, decreased range of motion in the neck and back, decreased muscle

strength in the right hip flexors, flattened lumbar curve, hip height discrepancy,

hypoesthesia along the right L5 nerve to the medial foot and great toe, positive Romberg

(showing a balance disorder), and psychomotor agitation (Tr. 672, 790); and a November

2, 2017 lumbar MRI revealing: (1) straightened lumbar lordosis; (2) multilevel

multifactorial degenerative changes most significantly impact L3-4 where there are

findings of central, lateral recess and bilateral neural foraminal stenosis; (3) appearance of

some residual lateral recess and foraminal stenosis on the left side at L4-5 as well as L5-S1;

and (4) some epidural fibrosis noted posterior to the L5 vertebral body. Doc. No. 22, at

30–31.

to Dr. Olsson’s opinions, the ALJ was free to give greater weight to the opinions of

state agency consultants. Id. at 40–41.

Upon consideration, the Commissioner has the better argument based on the

facts of this case because the ALJ provided at least two good cause reasons,

supported by substantial evidence, for giving Dr. Olsson’s opinions only little

weight, providing a sufficient basis to affirm the ALJ’s decision. See D’Andrea v.

Comm’r of Soc. Sec. Admin., 389 F. App’x 944, 948 (11th Cir. 2010) (finding no

reversible error in consideration of opinion of treating physician where “ALJ

articulated at least one specific reason for disregarding the opinion and the record

support[ed] it.”).9

As an initial matter, the Court agrees with Claimant, and the Commissioner

properly concedes, that the ALJ’s first reason for discounting Dr. Olsson’s opinions

is not supported by substantial evidence because the ALJ erred in finding that the

record contains no EMG findings, a finding that the record clearly contradicts. See

Doc. No. 22, at 37; R. 693–95, 712–21. But, an ALJ’s misstatement of fact can

be harmless if it does not affect the ALJ’s ultimate decision. Diorio v. Heckler, 721

F.2d 726, 728 (11th Cir. 1983). And a single erroneous statement by the ALJ alone

may not require remand. See Rhodes v. Astrue, No. 8:07-cv-18-T-MAP, 2008 WL

9 Unpublished opinions of the Eleventh Circuit are cited as persuasive authority.

See 11th Cir. R. 36–2.

360823 at *3 (M.D. Fla. Feb. 8, 2008) (noting that a single erroneous statement by an

ALJ alone does not require remand where the ALJ’s finding otherwise has strong

support).

As discussed below, because the ALJ provided two other good cause reasons

for giving Dr. Olsson’s opinions little weight, the Court finds any error in the ALJ’s

statement regarding no EMG findings in the record harmless on the facts of this

case. See Buffington v. Comm’r of Soc. Sec., No. 6:11-cv-1114-Orl-22GJK, 2012 WL

3715221, at *14 (M.D. Fla. July 26, 2012), report and recommendation adopted, 2012 WL

3715107 (M.D. Fla. Aug. 28, 2012) (misstatement of fact was harmless error where

the ALJ applied the correct legal standards in giving little weight to a medical

opinion, including that the physician’s opinion conflicted with his own medical

records, a finding which was supported by substantial evidence); Moorer v. Astrue,

No. 3:06CV434/LAC/EMT, 2007 WL 4336080, at *13 (N.D. Fla. Dec. 7, 2007) (finding

misstatement by ALJ harmless error because his other reasons for discounting the

medical opinion at issue were supported by substantial evidence). See also Cascio

v. Comm'r of Soc. Sec., No. 2:15-cv-719-FtM-CM, 2016 WL 7486745, at *9 (M.D. Fla.

Dec. 30, 2016) (affirming where the ALJ erroneously stated higher global assessment

of function (GAF) scores than were in the record; finding that the misstatement was

at most harmless error because substantial evidence otherwise supported the ALJ’s

determination); Wright v. Colvin, No. CV 313-079, 2014 WL 5591058, at *7 (S.D. Ga.

Nov. 3, 2014) (misstatements in credibility determination were harmless where the

ALJ provided six different reasons to support the adverse credibility determination,

and thus, the ALJ had a sufficient basis for the credibility determination even absent

the misstatements).

Specifically, the ALJ gave little weight to Dr. Olsson’s opinions, in part,

because the opinions failed to find support in Dr. Olsson’s own treatment notes.

See R. 43. The ALJ first stated that Dr. Olsson observed Claimant to present with

full strength, no pain on palpation, no muscle spasm, and reported negative straight

leg raise testing. See id. (citing Exhibit B11F/3, 8, 21, 35, 40; Exhibit Bl2F/3; Exhibit

B21F/38). The record supports those findings. See R. 550, 555, 568, 582, 587

(Exhibits B11F, B12F, and B21F demonstrating 5/5 strength, no pain on palpation,

no palpable muscle spasm, and negative straight leg raise tests). And the ALJ also

correctly noted that although Dr. Olsson noted Claimant’s unsteady gait, Dr.

Olsson’s treatment notes consistently reflect that Dr. Olsson observed Claimant

pacing the examination room. See id. Moreover, as the ALJ stated, Dr. Olsson did

not document complaints of severe pain; instead, his records demonstrate mild to

moderate symptoms ranging on a pain index from 3–4 out of 10. See, e.g., R. 550,

555, 559, 563, 568, 572, 577, 582, 587, 591.

In the Joint Memorandum, Claimant suggests that the ALJ ignored abnormal

clinical findings citing several examination findings in support, as set forth above.

Doc. No. 22, at 30–31. Claimant’s argument misses the mark however, because, as

the Commissioner argues, see Doc. No. 22, at 39–40, Claimant essentially invites the

Court to reweigh the evidence, which is not within the province of this Court. See

Bloodsworth, 703 F.2d at 1239; Borges v. Comm'r of Soc. Sec., 771 F. App’x 878, 882

(11th Cir. 2019) (“To the extent that Borges points to other evidence that would

undermine the ALJ's RFC determination, her contentions misinterpret the narrowly

circumscribed nature of this Court's appellate review, which precludes it from re-

weighing the evidence or substituting its own judgment for that of the

Commissioner.”). And to the extent that the ALJ did not specifically discuss in the

decision all of the records cited by Claimant, “the ALJ [is not required] to

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

is sufficient to allow [the Court] to conclude that the ALJ considered the claimant’s

medical condition as a whole.” See Castel v. Comm’r of Soc. Sec., 355 F. App’x 260,

263 (11th Cir. 2009) (quoting Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005)).

The ALJ’s decision in this case satisfies that standard.

The ALJ’s third reason for giving little weight to Dr. Olsson’s opinions—that

Dr. Olsson’s opinions were not supported by the normal examination findings of

other providers nor Dr. Lorber’s testimony—is also supported by substantial

evidence. In this regard, Claimant first argues that “the ALJ never specifies what

normal findings of other providers were inconsistent with Dr. Olsson’s opinions.”

Doc. No. 22, at 31. The Court disagrees. Throughout the decision, the ALJ

discusses the normal examination findings by several providers in determining

Claimant’s RFC. See R. 40, 41, 44 (discussing normal findings by Dr. Chhindra, Dr.

Lester, PA Klucar, and Dr. Lester). Claimant’s argument to the contrary is

unavailing.

Claimant also argues that “the ALJ has the law backwards” with regard to

giving Dr. Olsson’s opinions little weight because they conflict with the testimony

of non-examining medical expert Dr. Lorber. Doc. No. 22, at 31–32. In essence,

Claimant contends that Dr. Olsson’s opinions were entitled to more weight than the

opinions of Dr. Lorber because Dr. Olsson was a treating physician. See id. at 31–

34. However, “[m]edical experts are highly qualified and their opinions may be

entitled to great weight.” Henderson v. Saul, No. 8:19-CV-2454-T-AEP, 2021 WL

1138181, at *4 (M.D. Fla. Mar. 25, 2021) (citing 20 C.F.R. § 404.1527(c); Crawford v.

Comm’r of Soc. Sec., 363 F.3d 1155, 1159–60 (11th Cir. 2004)). Given that the ALJ

considered Dr. Lorber’s opinion and found it well supported (as opposed to the

opinions of Dr. Olsson, which the ALJ determined were entitled to little weight),

the Court finds no reversible error.10 See id. (finding no error in ALJ discounting

10 In a footnote, Claimant contends that Dr. Lorber lacks current medical

knowledge, was “clearly unprepared,” and wrongfully discredited Dr. Olsson. Doc. No.

22, at 31 n.3. To the extent that Claimant intended to assert this as an independent

argument, given the perfunctory nature thereof and Claimant’s failure to cite any legal

authority in support, the Court finds the argument waived. See generally N.L.R.B. v.

treating physician’s opinions and giving great weight to the opinions of medical

expert (citing Huntley v. Comm’r of Soc. Sec., 683 F. App’x 830, 833 (11th Cir. 2017)));

Kinnard v. Astrue, No. 8:09-cv-628-T-24AEP, 2010 WL 3584583 (M.D. Fla. Aug. 26,

2010), report and recommendation adopted, 2010 WL 3584557 (M.D. Fla. Sept. 10,

2010), aff’d, 426 F. App’x 835 (11th Cir. 2011) (affirming ALJ decision that gave the

most weight to the opinions of medical experts, and little weight to the opinions of

treating physicians).

But Claimant also argues that the ALJ erroneously “cites to the opinions of

two state agency non-examining psychologist opinions,” when “these doctors did

not have an opportunity to review most of Dr. Olsson’s notes as well as his opinion

assigning [Claimant] limitations.” Doc. No. 22, at 33. According to Claimant,

those opinions cannot constitute substantial evidence to discount Dr. Olsson’s

opinions. See id. Claimant relies on Johnson v. Barnhart, 138 F. App’x 266, 270 (11th

Cir. 2005) in support. Id. at 33–34.

In Johnson, an unpublished opinion, the Court found that although the ALJ

may have properly rejected the opinions of a treating physician for good cause, the

ALJ nevertheless erred in giving greater weight to a non-examining physician. 138

McClain of Georgia, Inc., 138 F.3d 1418, 1422 (11th Cir. 1998) (“Issues raised in a perfunctory

manner, without supporting arguments and citation to authorities, are generally deemed

to be waived.”). See also Yedra Yhon v. Comm'r of Soc. Sec., No. 3:09-cv-342-J-32MCR, 2010

WL 3394654, at *3 (M.D. Fla. Aug. 26, 2010) (court would not attempt to decipher content

of undeveloped arguments raised by the claimant).

F. App’x at 270. The ALJ had rejected the opinions of the treating physician for

both inconsistency with the physician’s own treatment notes, as well as the opinions

of the non-examining physicians. Id. The Court found that standing alone, the

opinion of a non-examining physician could not constitute substantial evidence to

support the ALJ’s determination. Id. at 270–71. Ultimately, the Court found that

on the record as it was, additional evidence was required to make a determination

as to whether the claimant was disabled, in particular, it was not clear what level of

work, if any, the claimant could perform, and the medical record did not establish

the claimant’s ability to perform past relevant work. Id.

Upon consideration, the Court finds Johnson distinguishable from this case

for two primary reasons. First, from the ALJ’s decision here, it is not entirely clear

why Claimant assumes that the ALJ even based his assignment of little weight to

Dr. Olsson’s opinions on the opinions of state agency psychologists, which does not

appear to be the case. See R. 43. Second, the “ultimate reversible error” in Johnson

was the ALJ’s failure to resolve inconsistencies in the record as to whether the

claimant could return to past relevant work, which is not at issue here. See

Robinson v. Berryhill, No. CV 16-00494-N, 2017 WL 3205060, at *9 (S.D. Ala. July 27,

2017) (distinguishing Johnson on similar basis). See also Kidd v. Colvin, No. CV 115-

207, 2017 WL 914061, at *8 (S.D. Ga. Feb. 2, 2017), report and recommendation adopted,

2017 WL 901896 (S.D. Ga. Mar. 7, 2017) (similar). So, the Court finds Claimant’s

reliance on Johnson unpersuasive.

Moreover, as discussed above, Claimant has not established that the ALJ

erred in discounting the opinions of Dr. Olsson, and thus the weight given to those

opinions was not error. Further, the ALJ stated in the decision that there were no

opinions in the record that were contrary to the opinions of the non-examining state

agency psychological consultants, a finding that Claimant does not contest. See R.

43. In general, the “more consistent a physician’s opinion is with the record as a

whole, the more weight an ALJ can place on that opinion.” Putman v. Soc. Sec.

Admin., Comm’r, 705 F. App’x 929, 932 (11th Cir. 2017). Based on the facts of this

case, the Court finds no error in the ALJ giving the opinions of the state agency

psychological consultants greater weight than that afforded to the opinions of Dr.

Olsson, a treating pain management specialist. See id. at 934 (finding that ALJ did

not err by giving greater weight to the opinion of a non-examining physician than

the opinion of a treating physician where the ALJ articulated reasons independent

of the opinions of the non-examining physician for giving treating physician’s

opinion less than substantial weight (citing 20 C.F.R. § 404.1527(c)(4))); Jarrett v.

Comm'r of Soc. Sec., 422 F. App’x 869, 874 (11th Cir. 2011) (concluding that ALJ did

not err in giving treating physician’s opinion little weight and instead crediting the

opinions of the state agency consultants where the ALJ articulated specific reasons

for not giving controlling weight to the treating physician’s opinion (it was

inconsistent with his own treatment notes, treatment notes of other providers, and

the claimant’s daily activities), and the opinions of state agency consultants were

consistent with the records of the treating physicians).

In sum, where the Commissioner’s decision is supported by substantial

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

result as the finder of fact, and even if the Court finds that the evidence

preponderates against the Commissioner’s decision. See Edwards v. Sullivan, 937

F.2d 580, 584 n.3 (11th Cir. 1991). See also Sryock v. Heckler, 764 F.2d 834, 835 (11th

Cir. 1985) (ALJ may reject the opinion of any physician if the evidence supports a

contrary conclusion). Because the decision in this case was supported by

substantial evidence, the Court finds Claimant’s first assignment of error

unpersuasive.

B. Appeals Council.

“‘With a few exceptions, the claimant is allowed to present new evidence at

each stage of this administrative process,’ including before the Appeals Council.”

Washington v. Soc. Sec. Admin., Com’r, 806 F.3d 1317, 1320 (11th Cir. 2015) (quoting

Ingram v. Comm’r of Soc., Sec. Admin., 496 F.3d 1253, 1261 (11th Cir. 2007)). “The

Appeals Council will review a case if . . . [it] receives additional evidence that is

new, material, and relates to the period on or before the date of the hearing decision,

and there is a reasonable probability that the additional evidence would change the

outcome of the decision.” 20 C.F.R. § 404.970(a)(5). “When the Appeals Council

refuses to consider new evidence submitted to it and denies review, that decision is

. . . subject to judicial review.” Washington, 806 F.3d at 1320 (quoting Keeton v. Dep't

of Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994)).

On review, the Court must determine whether the new, material, and

chronologically relevant evidence submitted to the Appeals Council renders the

denial of benefits erroneous. Ingram, 496 F.3d at 1261–62.11 “Evidence is material

if ‘there is a reasonable possibility that the new evidence would change the

administrative outcome.’” Atha v. Comm’r of Soc. Sec., 616 F. App’x 931, 936 (11th

Cir. 2015) (quoting Hyde v. Bowen, 653 F.2d 456, 459 (11th Cir. 1987)). “New

evidence is chronologically relevant if it ‘relates to the period on or before the date

of the [ALJ’s] hearing decision.’” Hargress v. Soc. Sec. Admin., Comm’r, 883 F.3d

1302, 1309 (11th Cir. 2018) (quoting 20 C.F.R. §§ 404.970(b), 416.1470(b)).

Here, as discussed above, Claimant submitted to the Appeals Council a

Physical Restrictions Evaluation form completed by Gary Weiss, M.D., Claimant’s

treating neurologist, as well as medical records from Dr. Weiss from October 1, 2019

through October 17, 2019, none of which were before the ALJ. R. 8–13, 19–27. The

11 The Court reviews the denial of review by the Appeals Council under sentence

four of section 405(g). See Ingram, 496 F.3d at 1262.

Appeals Council denied the request for review, finding that the records and

opinions from Dr. Weiss were, in essence, not chronologically relevant. See R. 2.12

Claimant argues that the Appeals Council erred in that finding because it

“ignored the fact that the form specifically covers the time period beginning

December 2, 2014 through October 31, 2019,” and that the “retrospective opinion”

was supported by a review of medical records during the relevant time period.

Doc. No. 22, at 42, 44. According to Claimant, although Dr. Weiss’s treatment

notes were from 2019, those records support his opinions. Id. at 43.

As the Commissioner contends in response, however, it is not apparent that

the evidence submitted from Dr. Weiss is chronologically relevant. Specifically,

the record demonstrates that Claimant did not present to Dr. Weiss until October 1,

2019, and thus Dr. Weiss was not Claimant’s treating physician prior to that date.

See R. 23. As noted in the ALJ’s decision, the ALJ decided Claimant’s case through

December 31, 2016, Claimant’s date of last insured. See R. 45. In the Joint

Memorandum, Claimant suggests that Dr. Weiss’s opinion is retrospective because

the cover letter and introduction to the form requested that Dr. Weiss review certain

medical records from 2014 through 2019. See R. 8–9. But, nothing on the portion

12 Here, there is no dispute that the evidence submitted to the Appeals Counsel was

“new evidence” because it did not exist prior to the date of the ALJ’s decision. Instead,

the dispute centers on whether the information was both chronologically relevant and

material, and thus, whether it was likely to change the administrative outcome.

of the form completed by Dr. Weiss states that said records were considered in his

assessment, or that his opinions related to any particular time period. See R. 9–13.

Moreover, Dr. Weiss does not point to any specific treatment notes or tests during

the relevant period in the Physical Restrictions Evaluation form. See id.

Accordingly, upon review of the record, Claimant has not demonstrated that

the Physical Restrictions Evaluation form is chronologically relevant. See, e.g.,

Griffin v. Soc. Sec. Admin., Comm’r, 842 F. App’x 339, 342 (11th Cir. 2021) (finding

Appeals Council did not err in declining to consider newly submitted health

statement, in part, because the physician did not cite to any medical evidence to

support the physician’s conclusions that the limitations existed during the relevant

period, and did not provide any reference to medical records from the relevant time

period to support the conclusion that the limitations applied during the relevant

period); Stone v. Soc. Sec. Admin., 658 F. App’x 551, 553 (11th Cir. 2016) (finding that

the claimant had failed to demonstrate that new evidence submitted to Appeals

Council was chronologically relevant because the “summarized records include no

express reference to [the claimant’s] condition or symptoms before the ALJ's

decision,” and there was no evidence that the provider of the diagnosis “reviewed

or relied upon [the claimant’s] past medical records in making that diagnosis”).

Claimant also argues that the form “specifically covers the time period

beginning December 2, 2014 . . . .” Doc. No. 22, at 41. But, again, although the

introduction to the form requests that Dr. Weiss consider the time period

“beginning 12/2/14 through the present date,” in the portion of the form completed

by Dr. Weiss (which was completed on October 31, 2019), Dr. Weiss never states

that the opined-to limitations relate to any particular period, and the records

submitted from Dr. Weiss himself are all from 2019, far outside the relevant time

period. See R. 9–13, 19–27. And although not cited by Claimant, the Court finds

the analysis set forth in Snyder v. Commissioner of Social Security, No. 6:20-cv-1275-

DCI, 2021 WL 3190559 (M.D. Fla. July 28, 2021) persuasive on this point.13

In Snyder, the claimant submitted to the Appeals Council records from Dr.

Weiss post-dating the ALJ’s decision. Id. at *5. The claimant argued, in part, that

the Appeals Council erred in finding the new evidence not chronologically relevant

because the form completed by Dr. Weiss stated that it applied retrospectively, and

the responses were made after reviewing medical records from the time period

relevant to the claimant’s disability claim. Id. The Court found:

On its face, the Physical Restrictions Evaluation and MRI result were

concluded months after the period of disability. While the form states

that it applies to March 27, 2017 through the present, there is no

discussion in the record that explains how these results actually relate

back to a prior date. The evidence does not explore whether, at an

earlier time, the pain was better or worse or more limiting in a way that

might have impacted the ALJ’s assessment. As such, the Court agrees

with the Appeals Council that the evidence is not chronologically

relevant.

13 The Court notes that Snyder was decided after the parties’ submission of the Joint

Memorandum in this case.

Id. at *6 (record citations omitted). As discussed above, the Court finds that

Claimant has not established the chronological relevance of Dr. Weiss’s records and

opinions for the same reasons. See id. See also Brewster v. Comm'r of Soc. Sec., No.

6:18-cv-1220-Orl-TBS, 2019 WL 13055069, at *9 (M.D. Fla. June 19, 2019). 14

Consequently, “[b]ecause the new evidence was not chronologically relevant, the

14 Although the Court finds the analysis in Snyder persuasive to the outcome here,

the Court further notes at least two factually similar recent decisions addressing records

from Dr. Weiss, submitted by the claimant’s counsel to the Appeals Council. See McClurg

v. Saul, No. 6:19-cv-1798-Orl-JRK, 2020 WL 5742980 (M.D. Fla. Sept. 25, 2020); Ripson v.

Comm'r of Soc. Sec., No. 6:16-cv-1932-Orl-MRM, 2018 WL 1181595 (M.D. Fla. Mar. 7, 2018)

Upon consideration, the Court finds those decisions inapplicable. In McClurg, it was

“clear” that Dr. Weiss reviewed records during the relevant period and that Dr. Weiss

opined to limitations present during the relevant period of disability, and Dr. Weiss’s

opinions were “accompanied by detailed supporting clinical findings,” see McClurg, 2020

WL 5742980, at * 6, all of which the Court finds absent in this case, rendering McClurg

factually distinguishable. In Ripson, on the other hand, the court determined that merely

because Dr. Weiss’s post-decision treatment notes included symptoms that the claimant

had reported to a different medical professional during the relevant period of disability,

the treatment notes were chronologically relevant. See Ripson, 2018 WL 1181595, at *6.

Without further information regarding the claimant’s allegations in Ripson, or citation to

any legal authority for the proposition that Ripson sets forth the appropriate standard in

this District, the Court declines to find that Ripson dictates the outcome here.

Notably, in the Joint Memorandum, Claimant suggests that Dr. Weiss found that

Claimant’s condition had worsened since a laminectomy in July 2017. See R. 22, at 42 &

n.7. To that extent, it is not clear what records Claimant is referencing because his

citations do not relate to Dr. Weiss’s records, but instead, the ALJ’s decision. See id. But,

even accepting Claimant’s statements as true, as explained in McClurg, if the evidence

indeed demonstrated a worsening of Claimant’s relevant symptoms after the ALJ’s

decision, it would render the newly submitted medical records not chronologically

relevant. See McClurg, 2020 WL 5742980, at *4 (discussing Stone v. Soc. Sec. Admin., 658 F.

App’x 551, 553 (11th Cir. 2016), and Hargress v. Soc. Sec. Admin., Comm’r, 883 F.3d 1302,

1309–10 (11th Cir. 2018)).

Appeals Council was not required to consider it.” Hargress, 883 F.3d at 1310. For

these reasons, Claimant has not demonstrated reversible error in the Appeals

Council’s decision to deny his claim for review based on new evidence.!5

VI. CONCLUSION.

Based on the foregoing, it is ORDERED that:

1. The final decision of the Commissioner is AFFIRMED.

2. The Clerk of Court is DIRECTED to enter judgment in favor of the

Commissioner and CLOSE the case.

DONE and ORDERED in Orlando, Florida on February 24, 2022.

hegrar Hic

LESLIE NOFFMAN PRICE

UNITED STATES MAGISTRATE JUDGE

Copies furnished to:

Counsel of Record

Unrepresented Parties

15 Even assuming that the records submitted to the Appeals Council are

chronologically relevant, the Court alternatively finds that Claimant has not demonstrated

that a reasonable probability exists that the new evidence would change the administrative

outcome. See Snyder, 2021 WL 3190559, at *6 (finding same under similar circumstances

because the claimant made “no adequate attempt to demonstrate that the evidence is likely

to change the decision ...”). See also Griffin, 842 F. App’x at 342 (new evidence was not

material where, in part, it “was the same record evidence already considered by the ALJ

and used to determine” that Claimant was not disabled).

Ae |