Kelter v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

GARY KELTER,

Plaintiff,

v. CASE NO. 8:20-cv-2695-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 his application for a period of disability and

disability insurance benefits (“DIB”), filed on August 17, 2017.2 Following an

administrative hearing held on July 11, 2019, the assigned Administrative

Law Judge (“ALJ”) issued a decision, finding Plaintiff not disabled from

November 20, 2014, the alleged disability onset date,3 through October 11,

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

Magistrate Judge. (Docs. 15, 17.)

2 In order to be entitled to a period of disability and DIB, Plaintiff had to

establish disability on or before December 31, 2019, his date last insured. (Tr. 15-

16.)

3 The alleged onset date is one month after Plaintiff’s work injury on October

20, 2014, when Plaintiff was injured while lifting heavy items (Tr. 802).

2019, the date of decision. (Tr. 12-26, 32-56.)

In reaching the decision, the ALJ found that Plaintiff had “the

following severe impairments: previous obesity, but now overweight; . . .

lumbar spine congenital mild stenosis with lipomatosis, disc spacing, bulging

discs, and annular tear.” (Tr. 17.) The ALJ also found that Plaintiff had the

residual functional capacity (“RFC”) to perform light work, except:

[The claimant] is only occasionally able to climb, balance, stoop,

kneel, crouch, crawl, and climb ladders, but never climb scaffolds,

ropes, or at open, unprotected heights. He is able to sit for 6

hours and stand and/or walk for 6 hours each in an 8-hour day

with usual breaks. He also must be able to change positions from

sitting to standing every 30 to 60 minutes for 2 minutes without

significantly interrupting work. The claimant must also avoid

extreme vibrations.

(Tr. 19.)4 Then, after finding that Plaintiff was unable to perform any past

relevant work, the ALJ concluded, based on Plaintiff’s age, education, work

experience, RFC, and the testimony of a Vocational Expert (“VE”),5 that there

4 As stated in 20 C.F.R. § 404.1567(b):

Light work involves 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.

5 The ALJ found that the VE’s testimony was consistent with the information

were jobs existing in significant numbers in the national economy that

Plaintiff could perform.6 (Tr. 24-26.) Based on a review of the record, the

briefs, and the applicable law, the Commissioner’s decision is due to be

AFFIRMED.

I. Standard of Review

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

in the Dictionary of Occupational Titles (“DOT”) pursuant to Social Security Ruling

(“SSR”) 00-4p, except “[f]or issues not contemplated by the DOT, such as a sit/stand

option or being off-task,” about which the VE “testified that her testimony was

based on method time and theory motion, which is an industrial engineering theory

for production rate.” (Tr. 26.)

6 Specifically, the VE testified that a hypothetical person with Plaintiff’s age,

education, work experience, and RFC, could perform the representative occupations

of final inspector (DOT number 727.687-054), small products assembler (DOT

number 739.687-030), and poly-packer and heat-sealer (DOT number 920.686-038).

(Tr. 26.)

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 v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995); accord Lowery

v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (stating the court must

scrutinize the entire record to determine the reasonableness of the

Commissioner’s factual findings).

II. Discussion

A. The Parties’ Positions

Plaintiff’s sole issue on appeal is that the ALJ did not sufficiently

evaluate the opinion of Plaintiff’s treating provider, Eric Shelton, PA-C, and,

thus, his unfavorable decision was not supported by substantial evidence.

(Doc. 19 at 1.) Plaintiff argues “the ALJ’s RFC assessment did not account

for all the limitations in Mr. Shelton’s opinion that the ALJ found to be

persuasive.” (Id. at 13.) Plaintiff explains:

Here, the ALJ concluded that “[s]ome of Mr. Shelton’s opined

limitations are consistent with the record, such as his ability to

lift and carry weight and need to change positions regularly.”

(See Tr. 22). Yet, the ALJ’s decision did not accurately reflect the

limitations in lifting and carrying that Mr. Shelton described.

Mr. Shelton wrote that Claimant could never lift or carry 20

pounds, occasionally lift 10 pounds, and frequently lift less than

10 pounds. (See Tr. 1019). That contradicts the ALJ’s finding

that Claimant can perform light work, (see Tr. 19), as light jobs

require a claimant to be able to lift 20 pounds occasionally and 10

pounds frequently, see 20 C.F.R. § 404.1567(b) (“Light work

requires lifting no more than 20 pounds at a time with frequent

lifting or carrying objects weighing up to 10 pounds”). Since the

ALJ specifically concluded that Mr. Shelton’s findings about

lifting and carrying were supported by the evidence, the ALJ

should have limited Plaintiff to lifting no more than 10 pounds

occasionally.

(Id. at 13-14).

Plaintiff next argues that the ALJ did not adequately explain why he

did not credit the rest of PA Shelton’s opinion:

[T]he ALJ offered only a vague explanation for finding the

rest of Mr. Shelton’s opinion to be unpersuasive. The ALJ wrote

that Mr. Shelton’s opinion included “exaggerated speculative

statements not supported by or consistent with any objective

evidence” that “appear to be based entirely on the claimant’s self-

reported symptoms.” (See Tr. 22). The ALJ asserted that Mr.

Shelton’s treatment notes in Exhibits 12F and 13F were

inconsistent with his opinion. (See id.).

Plaintiff respectfully submits, however, that the physical

examination findings in Mr. Shelton’s notes fully supported the

functional restrictions that he described. Mr. Shelton observed

that Plaintiff had tenderness with palpitation of the posterior

superior iliac spine, the sciatic notch, the sacroiliac joint, the

supraspinatus ligament, the paraspinal and iliolumbar regions,

the gluteus maximus, the gluteus minimus, the sciatic nerve, and

the pifirormis. (Tr. 943-44, 946-47, 950, 954, 958, 962-63, 969-70,

975-76, 981- 82, 994-95, 1001-02). Plaintiff also had a reduced

range of motion in his lumbar spine. (Id.). This evidence of

widespread musculoskeletal pain supports Mr. Shelton’s

conclusion that Plaintiff would need extra breaks during the

workday and that he would miss several days of work per month

due to his pain. (See Tr. 1017-19). The ALJ failed to explain how

Mr. Shelton’s treatment notes were inconsistent with his opinion.

In addition, the record contradicts the ALJ’s assertion that

Mr. Shelton was simply parroting Plaintiff’s subjective

complaints. (See Tr. 22). Mr. Shelton observed that Plaintiff

suffered from sharp, chronic pain that interfered with his sleep,

work, movements, positioning, twisting, flexion, and extension.

(Tr. 1017). Mr. Shelton also noted that Plaintiff’s pain would

constantly interfere with his ability to work because he needed to

stretch, change positions, and use medications. (Id.). So, Mr.

Shelton did provide an objective basis for the functional

limitations that he described. In addition, the physical

examinations documenting widespread tenderness and a limited

range of motion supported Mr. Shelton’s conclusion that Plaintiff

would need extra breaks during the workday to stretch or to lie

down. (Tr. 943-44, 946-47, 950, 954, 958, 962-63, 969-70, 975-76,

981-82, 994-95, 1001-02).

(Id. at 14-16). Plaintiff concludes that the ALJ’s decision did not adequately

evaluate PA Shelton’s opinion and requests remand for further consideration

of PA Shelton’s opinion. (Id. at 16.)

Defendant concedes that “the ALJ misstated PA Shelton’s lifting

opinion.” (Doc. 20 at 9.) Defendant explains:

PA Shelton did not opine that Plaintiff could occasionally

lift 20 pounds (Tr. 1019). Despite this error, the ALJ’s RFC,

including its limitation to lifting 20 pounds occasionally and 10

pounds frequently is supported by other evidence as discussed

below.

(Id.) Defendant then summarizes the ALJ’s discussion of PA Shelton’s

records as follows:

The ALJ noted that PA Shelton observed on examinations

from October 2018 to March 2019 that Plaintiff had normal gait,

full motor strength and sensory function but with some lumbar

tenderness (Tr. 22, 943, 946, 949-50, 953-54, 957-58, 962-63, 975-

76, 981-82, 987-88, 994-95, 1001-02, 1009-10, 1012-13, 1015-16).

The ALJ further noted that PA Shelton noted that Plaintiff

reported his lumbar injections provided “significant relief” and

that he was “very happy” with the results (Tr. 22, 945, 949, 953,

957, 969, 975, 981, 987, 994, 1001). The ALJ also noted that

while Plaintiff did report some worsening but tolerable pain in

January 2019, he was reporting improvement in March 2019 (Tr.

22, 1009, 1013, 1015). Accordingly, PA Shelton’s longitudinal

treatment records do not support his disabling opinions. See 20

C.F.R. § 404.1520c(c)(1).

Moreover, PA Shelton’s disabling opinions are inconsistent

with the other medical evidence as noted by the ALJ (Tr. 20-23).

Among other things, the ALJ noted that his treating physician

found in 2015 that he was able to walk smoothly and heel to toe

(Tr. 20, 256). In April 2015, Plaintiff had entirely normal

physical examination findings and reported pain improvement

(Tr. 20, 253). His physician gave him a 3% total body impairment

with a 35-pound lifting restriction (Tr. 20, 254). In 2017, he was

observed with normal gait and had ability to walk heel and toe

with normal strength and reflexes (Tr. 21, 518). Throughout

2017 and 2018, the ALJ noted Plaintiff had similar examination

findings with normal strength and sensation with no spinal

tenderness or spasm (Tr. 21, 902, 906, 938). These findings are

inconsistent with PA Shelton’s disabling opinions. 20 C.F.R. §

404.1520c(c)(2).

(Id. at 9-10.)

Defendant then discusses other reasons justifying discounting PA

Shelton’s opinion, including Plaintiff’s ability to carry out activities of daily

living, conservative treatment, and contrary conclusions in prior

administrative findings:

The ALJ also noted that Plaintiff’s activities of daily living

showed he lived alone and was able to take care of himself (Tr.

23). He prepared meals, performed household chores, washed

dishes, swept, did laundry, drove[,] and shopped (Tr. 23, 39, 44).

His activities of daily living are also inconsistent with PA

Shelton’s disabling opinions. 20 C.F.R. § 404.1520c(c)(2).

Additionally, the ALJ noted that Plaintiff’s treatment was

conservative (Tr. 23). The ALJ stated that despite an isolated

recommendation to undergo surgical intervention, Plaintiff

treatment recommendation[s] were rest, weight loss, and

injections (Tr. 23). The ALJ noted that Plaintiff conservatively

treats [with] over[-]the[-]counter pain relievers (Tr. 23, 50, 240).

This conservative treatment provides further evidence to

discount PA Shelton’s disabling opinions.

The Commissioner further notes that the prior

administrative findings by the state agency physicians provide

additional support for the RFC and to discount PA Shelton’s

disabling opinions (Tr. 24, 61-64, 77-78). Plaintiff does not

contest the ALJ’s findings that the opinions were persuasive.

State agency medical or psychological consultants are highly

qualified and experts in Social Security disability evaluation. 20

C.F.R. § 404.1513a(b)(1) (2017). The state agency physicians

reviewed Plaintiff’s medical records and determined that he was

capable of light work (Tr. 24, 61-64, 77-78). The ALJ found them

persuasive noting they provided a detailed narrative description

of the evidence relied upon including physical examinations and

diagnostic imaging (Tr. 24). The opinions of the state agency

physicians are additional evidence to support the ALJ’s RFC and

to discount PA Shelton. See 20 C.F.R. §§ 404.1545(a)(3),

404.1546(c).

(Id. at 10-11 (footnote omitted).) Defendant concludes that “while Plaintiff

does present some evidence in support of PA Shelton[’s] [opinions,] the ALJ

properly noted issues with supportability and consistency.” (Id. at 11.)

B. Analysis

Before determining a claimant’s ability to perform past relevant work

at step four of the sequential evaluation process,7 the ALJ must determine

the claimant’s RFC. See 20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1545. In doing

so, an “ALJ must consider all medical opinions in a claimant’s case record,

together with other relevant evidence.” McClurkin v. Soc. Sec. Admin., 625

F. App’x 960, 962 (11th Cir. 2015) (per curiam) (citing 20 C.F.R. §

404.1527(b)). Medical opinions are statements from physicians or acceptable

medical sources concerning what a claimant may still be able to do despite

his impairments. 20 C.F.R. § 404.1513(a)(2). The primary considerations are

whether the claimant is limited in the ability to perform the physical and

mental demands of work activities, and in the ability to see, hear, or use

other senses or adapt to environmental conditions. Id.

The revised Regulations governing the evaluation of medical opinions

for applications filed on or after March 27, 2017 apply to this case. 20 C.F.R.

§ 404.1520c; Simon v. Comm’r, Soc. Sec. Admin., 7 F.4th 1094, 1104 n.4 (11th

Cir. 2021). The ALJ now determines the persuasiveness of a medical opinion

instead of generally basing its weight on the opinion’s source. Compare 20

C.F.R. § 404.1527(c) with 20 C.F.R. § 404.1520c. In conducting this analysis,

an ALJ must consider the following five factors: (1) supportability; (2)

7 The Commissioner employs a five-step process in determining disability.

See 20 C.F.R. § 404.1520(a)(4).

consistency; (3) the source’s relationship with the claimant; (4) the source’s

area of specialization; and (5) any other relevant factors “that tend to support

or contradict a medical opinion,” such as whether the source is familiar with

the other record evidence or has “an understanding of [the SSA’s] disability

program’s policies and evidentiary requirements.” 20 C.F.R. §§ 404.1520c(c);

see also Nixon v. Kijakazi, No. 6:20-cv-957-JRK, 2021 WL 4146295, at *3

(M.D. Fla. Sept. 13, 2021) (citation omitted).

Of these factors, supportability and consistency are the most important.

20 C.F.R. § 404.1520c(b)(2). Supportability addresses the extent to which a

medical source has articulated record evidence bolstering his own opinion,

while consistency deals with whether a medical source’s opinion conforms to

other evidence in the record. 20 C.F.R. §§ 404.1520c(b)(1)–(2), (c)(1)–(2);

Barber v. Comm’r of Soc. Sec., No. 6:20-cv-1222-LRH, 2021 WL 3857562, at

*3 (M.D. Fla. Aug. 30, 2021) (citation omitted). The ALJ may, but is not

required to, explain how the ALJ considered the remaining three factors of

relationship with the claimant, specialization, and “other factors.” 20 C.F.R.

§ 404.1520c(b)(2)); Freyhagen v. Comm’r of Soc. Sec. Admin., No. 3:18-cv-

1108-J-MCR, 2019 WL 4686800, at *2 (M.D. Fla. Sept. 26, 2019) (citation

omitted).

Both parties acknowledge that the ALJ misstated PA Shelton’s

assessed limitation regarding lifting and carrying. (See Tr. 22.) The ALJ

found PA Shelton’s opinion to be unpersuasive overall, but accepted “some” of

his opinions because they were “consistent with [the] record,” including

Plaintiff’s “ability to lift and carry weight and need to change position

regularly.” (Id.) Plaintiff argues that “[t]he ALJ accepted Mr. Shelton’s

findings about Plaintiff’s ability to lift and carry.” (Doc. 19 at 16.) However,

the ALJ’s acceptance of PA Shelton’s opined limitation was clearly predicated

on his misrepresentation of the opinion—that Plaintiff could carry 20 pounds

occasionally and 10 pounds frequently—which was consistent with other

evidence in the records that Plaintiff could perform light work.

These records included the opinions of the State agency consultants,

Max Kattner, M.D. and Neil Lewis-Levine, D.O., both of whom opined that

Plaintiff was capable of performing light work, and, specifically, that Plaintiff

could lift and/or carry 20 pounds occasionally and 10 pounds frequently. (Tr.

61-63, 76-78.) The ALJ was “persuaded” by the assessments of Drs. Kattner

and Lewis-Levine. (Tr. 24.) Additionally, there were other records showing

that Plaintiff could lift and/or carry more weight than PA Shelton’s opined

limitation. (See, e.g., Tr. 690 (stating that Plaintiff had a “20[-]pound lifting

restriction”); Tr. 823 (recommending to continue with Plaintiff’s “20[-]pound

lifting restriction”); Tr. 864 (stating that Plaintiff’s permanent lifting

restriction was 35 pounds and his permanent impairment rating was three

percent); Tr. 866 (stating that Plaintiff should not lift more than 30 pounds

and should not bend, twist, or climb); Tr. 431 (stating that Plaintiff should

not lift more than 30 pounds and should not bend or twist); Tr. 813 (stating

that Plaintiff should not lift more than 30 pounds and should not bend or

twist); Tr. 870 (stating that Plaintiff should not lift more than 30 pounds and

should not bend or twist); but see Tr. 777, 786 & 791 (stating that Plaintiff

should carry and lift floor to waist less than 20 pounds)).

Thus, given the substantial evidence in the record to support the ALJ’s

lifting and carrying restriction, the ALJ’s misstatement about PA Shelton’s

lifting and carrying restriction was harmless error. See Diorio v. Heckler, 721

F.2d 726, 728 (11th Cir. 1983); Tackett v. Comm’r of Soc. Sec., No. 21-11852,

2022 WL 2314095, at *1 (11th Cir. June 28, 2022) (“Even if an ALJ commits

an error, the error is harmless if it did not affect the ALJ’s ultimate

determination.”)

Plaintiff further argues “the ALJ erred in finding that the treatment

notes contradicted the rest of Mr. Shelton’s opinion.” (Doc. 19 at 16.) While

the issue of the internal consistency of PA Shelton’s opinions may weigh on

the supportability factor, the issue remains about the consistency factor,

which deals with the source’s consistency with other evidence in the record.

See Cook v. Comm’r of Soc. Sec., No. 6:20-cv-1197, 2021 WL 1565832, at *3

(M.D. Fla. Apr. 6, 2021) (“Overall, supportability relates to the extent to

which a medical source has articulated support for the medical source’s own

opinion, while consistency relates to the relationship between a medical

source’s opinion and other evidence within the record.”). Here, the ALJ found

that PA Shelton’s opinions were not generally consistent with the rest of the

record. (See Tr. 22 (“[T]he majority of Mr. Shelton’s opined limitations are

unpersuasive since they are exaggerated speculative statements not

supported by or consistent with any objective medical evidence . . . .”); see also

Tr. 20-22 (discussing Plaintiff’s medical history between April 2015 and

March 2019).)

Notably, the ALJ did incorporate PA Shelton’s opinion to some extent

in his RFC assessment. (See Tr. 24 (“[A]fter consideration of the record as a

whole, including Mr. Shelton’s somewhat exaggerated functional assessment

(Ex. 14F), the limitations opined by the claimant’s doctors in connection to

his worker’s compensation claim (Ex. 1F, 6F, 7F, 9F) and the claimant’s

allegations, the [ALJ] finds that it is appropriate to assess more restrictive

limitations on the claimant’s ability to perform postural maneuvers, to sit

and stand, as described above, and to be exposed to vibration.”) (emphasis

added).) Yet, the ALJ was not required to adopt PA Shelton’s assessed

limitation as to lifting and carrying, especially when, as discussed above,

there was substantial evidence to the contrary. See Barnes v. Sullivan, 932

F.2d 1356, 1358 (11th Cir. 1991) (“Even if we find that the evidence

preponderates against the Secretary’s decision, we must affirm if the decision

is supported by substantial evidence.”); Bloodsworth v. Heckler, 703 F.2d

1233, 1239 (11th Cir. 1983). The RFC is in the province of the ALJ to develop

and assess. See 20 C.F.R. §§ 404.1527(d)(2), 404.1546(c) (noting that for

cases at the administrative law judge hearing level “the administrative law

judge ...is responsible for assessing your residual functional capacity”);

Robinson v. Astrue, 365 F. App’x 998, 999 (11th Cir. 2010) (per curiam)

(stating that “the task of determining a claimant’s residual functional

capacity and ability to work is within the province of the ALJ, not of

doctors”). Here, the ALJ’s RFC assessment is supported by substantial

evidence in the record, and, as shown earlier, any error in the ALJ’s

evaluation of PA Shelton’s opinion is harmless.

Accordingly, itis ORDERED:

1. The Commissioner’s decision is AFFIRMED.

2. The Clerk of Court is directed to enter judgment consistent with

this Order and close the file.

DONE AND ORDERED at Jacksonville, Florida, on July 13, 2022.

; MONTE C. RICHARDSON

UNITED STATES MAGISTRATE JUDGE

Copies to:

Counsel of Record

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