Perez v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

OCALA DIVISION

LEA RAE PEREZ,

Plaintiff,

v. Case No: 5:21-cv-536-PRL

COMMISSIONER OF SOCIAL

SECURITY,

Defendant.

ORDER

Plaintiff appeals the administrative decision denying her application for a period of

disability, and Disability Insurance Benefits (“DIB”), and Supplemental Security Income

(“SSI”). Upon a review of the record, the memoranda, and the applicable law, the

Commissioner’s decision is due to be AFFIRMED.

I. BACKGROUND

For the sake of convenience, the administrative history, which is not in dispute, is

copied from the Government’s brief:

Plaintiff filed an application for a Period of Disability, Disability

Insurance Benefits, and Supplemental Security Income on

October 23, 2019, alleging disability beginning May 5, 2017 (Tr.

71, 227-40). The state agency denied Plaintiff’s application

initially and upon reconsideration (Tr. 111-16, 126-51). After a

hearing, the Administrative Law Judge (ALJ) denied Plaintiff’s

claim on December 28, 2020 (Tr. 13-50). The Appeals Council

denied Plaintiff’s request for review (Tr. 1-6). Accordingly, this

case is ripe for review under 42 U.S.C. §§ 405(g), 1383(c)(3).

(Doc. 22 at 1-2).1

Plaintiff was 44 years old on her alleged onset date, and 48 years old on the date of the

ALJ’s decision. (Tr. 15, 227). Plaintiff has a high school education and past work experience

as an appointment clerk, cashier, deli cutter, and data entry clerk. (Tr. 45-46, 264, 271-77).

Based on a review of the record, the ALJ found that Plaintiff had the severe impairments of

degenerative/discogenic disc disease, diabetes mellitus, essential hypertension, obesity,

carpal tunnel syndrome, and dysfunction of major joints. (Tr. 18).

The ALJ found that the Plaintiff had the residual functional capacity (“RFC”) to

perform light work with the following limitations:

lift and carry 10 pounds frequently and 20 pounds occasionally;

sit for 6 hours in an 8-hour workday; stand/walk for 6 hours in

an 8-hour workday; frequently climb ramps and stairs; never

climb ladders exceeding 6 ft., ropes, or scaffolds; occasionally

perform postural activities; occasionally perform right overhead

reaching; frequently reach in all other directions; exposed only

occasionally to hazards; and frequently perform gross

manipulation.

(Tr. 20).

Based upon the RFC, and considering the testimony of the vocational expert, the ALJ

found that Plaintiff was capable of performing her past relevant work as an appointment clerk,

cashier, deli cutter, and entry clerk “as actually and generally performed.” (Tr. 23). Further,

with an additional limitation to occasional manipulation, the ALJ found Plaintiff could make

a successful adjustment to other work, such as the jobs of furniture rental clerk, tanning salon

1 For claims filed on or after March 27, 2017, the Social Security Administration has issued

new revised regulations regarding the evaluation of medical evidence, including medical source

opinions. See Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 5844-

01 (Jan. 18, 2017) (final rules) (“We are revising our rules to ensure that they reflect modern healthcare

delivery and are easier to understand and use. We expect that these changes will help us continue to

ensure a high level of accuracy in our determinations and decisions.”).

attendant, and dealer accounts investigator (Tr. 24). Consequently, the ALJ found that

Plaintiff was not disabled from May 5, 2017, through the date of decision. (Tr. 25).

II. STANDARD OF REVIEW

A claimant is entitled to disability benefits when he or she is unable to engage in any

substantial gainful activity by reason of any medically determinable physical or mental

impairment which can be expected to either result in death or last for a continuous period of

not less than twelve months. 42 U.S.C. §§416(i)(1), 423(d)(1)(A); 20 C.F.R. §404.1505(a).

The Commissioner has established a five-step sequential analysis for evaluating a

claim of disability, which is by now well-known and otherwise set forth in the ALJ’s decision.

See 20 CFR §§ 404.1520(a), 416.920(a); see also Doughty v. Apfel, 245 F.3d 1274, 1278 (11th

Cir. 2001). The claimant, of course, bears the burden of persuasion through step four and, at

step five, the burden shifts to the Commissioner. Bowen v. Yuckert, 482 U.S. 137, 146 n. 5

(1987).

The scope of this Court’s review is limited to a determination of whether the ALJ

applied the correct legal standards and whether the findings are supported by substantial

evidence. McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir. 1988)(citing Richardson v. Perales,

402 U.S. 389, 390 (1971)). Indeed, the Commissioner’s findings of fact are conclusive if

supported by substantial evidence. 42 U.S.C. §405(g). Substantial evidence is more than a

scintilla – i.e., the evidence must do more than merely create a suspicion of the existence of a

fact, and must include such relevant evidence as a reasonable person would accept as

adequate to support the conclusion. Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995) (citing

Walden v. Schweiker, 672 F.2d 835, 838 (11th Cir. 1982) and Richardson v. Perales, 402 U.S. 389,

401 (1971)); accord Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991). 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,

937 F.2d at 584 n.3; Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991). This is clearly a

deferential standard.

III. DISCUSSION

Plaintiff raises multiple issues on appeal: (1) whether the ALJ applied the correct legal

standards at step four of the sequential evaluation process; (2) whether the ALJ erred by failing

to expressly consider the opinion of Dr. Thomas; and (3) whether the ALJ erred in

considering Plaintiff’s testimony regarding her pain and limitations.

A. The ALJ’s determination regarding Plaintiff’s ability to perform past work.

Plaintiff first argues that the ALJ erred at step four of the sequential evaluation process

by concluding that she was capable of her past relevant work. Plaintiff contends that the

record does not contain specific evidence regarding the reaching requirements of her past

work as she actually performed the jobs, and that the ALJ failed to ask her about the physical

requirements of her past work. (Tr. 21, 34-37). Because the RFC contains limitations to

occasional right overhead reaching, Plaintiff contends that the finding that Plaintiff could

perform her past relevant work is not based on the proper legal standards or supported by

substantial evidence. (Doc. 21 at 11).

In response, Defendant argues that regardless of any inconsistency between the ALJ’s

findings and the Dictionary of Occupational Titles (“DOT”), remand is not warranted

because Plaintiff has not established that she cannot perform her past jobs as she actually

performed them. See Colon ex rel. Colon v. Comm’r of Social Sec., 411 F. App’x 236, 239 (11th

Cir. 2011) (affirming ALJ’s decision because substantial evidence demonstrated claimant

could perform his job as it was actually performed, but not as generally performed). It is a

claimant’s burden to prove that she cannot perform past relevant work. See Jackson v. Bowen,

801 F.2d 1291, 1293-94 (11th Cir. 1986).

The ALJ determined that Plaintiff was not disabled because she could return to her

past relevant work as an appointment clerk, cashier, deli cutter, and entry clerk. (Tr. 23). The

record included evidence of the requirements of each of Plaintiff’s past jobs in a work history

report. (Tr. 271-77). Plaintiff reported that the non-exertional requirements of the jobs,

including the postural requirements and manipulative requirements, were not existent, were

just two hours a day, or were just occasional. (Tr. 271-77). She failed to report any reaching

requirements, and Defendant argues that “it is entirely reasonable to infer that the reaching

requirements would have been in line with the rest of the requirements of the jobs as she

reported them, so either not existing or being no more than occasional.” (Doc. 22 at 7). A

review of the report reveals that Plaintiff reported “0” for requirements such as “handling,”

“grasping,” and “writing,” but left the space for “reaching” blank. (Tr. 271-77). By contrast,

Plaintiff did specifically indicate how much time she spent walking, stooping, and sitting (Tr.

274). Given that it is Plaintiff’s burden, the Court agrees that Plaintiff’s failure to report any

reaching requirements constitutes evidence on which the ALJ could rely regarding the

requirements of her past jobs as she actually performed them. In other words, in the context

of the work history report, Plaintiff’s failure to report reaching requirements is substantial

evidence of the lack of any such requirements for the jobs listed.

Importantly, it is Plaintiff’s burden to prove that she cannot perform her past relevant

work, and the Eleventh Circuit has described it as “a very heavy burden.” Moore v. Barnhart,

405 F.3d 1208, 1211 (11th Cir. 2005) (“These regulations place a very heavy burden on the

claimant to demonstrate both a qualifying disability and an inability to perform past relevant

work.”). Plaintiff’s argument that the ALJ erred by not further inquiring into the physical

requirements of her past work is misplaced. The work history report provides detailed

information about the requirements of Plaintiff’s past work.

The record contains Plaintiff’s testimony regarding her past work, her own report

regarding the requirements of the jobs, and the testimony of the vocational expert. The Court

agrees with Defendant that this record evidence constitutes substantial evidence upon which

the ALJ was entitled to rely in finding that Plaintiff was capable of her past work. The ALJ

did not err in finding that Plaintiff could perform her past relevant work at step four of the

evaluation process.

B. The ALJ’s consideration of the opinion of Dr. Thomas.

Next, Plaintiff argues that the ALJ erred by failing to properly consider a disability

parking permit application completed by Dr. Khannia Thomas on March 12, 2020. On the

form, Dr. Thomas indicated that Plaintiff had “a permanent disability (ies) that limits or

impairs his/her ability to walk 200 feet without stopping to rest.” (Tr. 612). Dr. Thomas

indicated Plaintiff had a “[s]evere limitation in [her] ability to walk due to an arthritic,

neurological, or orthopedic condition.” (Tr. 612). Plaintiff argues that the ALJ erred by failing

to mention or explain how the factors of supportability and consistency were considered when

evaluating Dr. Thomas’s opinion as contained on that disability parking permit application.

As a preliminary matter, Plaintiff acknowledges that her claim is subject to a new

regulatory framework for evaluating medical opinions. For claims filed on or after March 27,

2017, the Social Security Administration has issued new revised regulations regarding the

evaluation of medical evidence, including medical source opinions. See Revisions to Rules

Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 5844-01 (Jan. 18, 2017) (final

rules) (“We are revising our rules to ensure that they reflect modern healthcare delivery and

are easier to understand and use. We expect that these changes will help us continue to ensure

a high level of accuracy in our determinations and decisions.”). In this case, Plaintiff filed her

applications in 2019, thus the new rules apply to her claim.

The new regulations impact agency policy in several important respects and contain

several significant changes to prior medical evidence rules. See 81 Fed. Reg. at 62,560. To

begin, the revised regulations redefine how evidence is categorized. Under the revised

regulations, there are five categories of evidence: (1) objective medical evidence; (2) medical

opinions; (3) other medical evidence, (4) evidence from nonmedical sources; and (5) prior

administrative medical findings. See 20 C.F.R. § 416.913(a) (2017).

Second, the definition of “medical opinion” has been considerably revised. For claims

filed by adults on or after March 27, 2017, the regulations provide:

A medical opinion is a statement from a medical source about

what you can still do despite your impairment(s) and whether

you have one or more impairment-related limitations or

restrictions in the following abilities: . . .

Your ability to perform physical demands of work activities,

such as sitting, standing, walking, lifting, carrying, pushing,

pulling, or other physical functions (including manipulative or

postural functions, such as reaching, handling, stooping, or

crouching);

Your ability to perform mental demands of work activities,

such as understanding; remembering; maintaining

concentration, persistence, or pace; carrying out instructions;

or responding appropriately to supervision, co- workers, or

work pressures in a work setting;

Your ability to perform other demands of work, such as seeing,

hearing, or using other senses; and

Your ability to adapt to environmental conditions, such as

temperature extremes or fumes.

20 C.F.R. § 416.913(a)(2) (2017).

Third, for claims filed on or after March 27, 2017, the regulations change how the

agency considers medical opinions and prior administrative medical findings. See 20 C.F.R.

§ 416.920c (2017). Notably, the regulations no longer use the term “treating source,” but refer

to “your medical source(s).” 20 C.F.R. § 416.920c (2017). The Commissioner intentionally

chose not to retain the “treating source rule” that previously required deference to treating

source opinion evidence. See 82 Fed. Reg. at 5883. Rather, the agency “will not defer or give

any specific evidentiary weight, including controlling weight, to any medical opinion(s) or

prior administrative medical findings(s), including those from [the claimant’s own] medical

sources.” 20 C.F.R. § 416.920c(a) (2017). The ALJ will, instead, consider all medical opinions

through the following factors: (1) supportability; (2) consistency; (3) relationship with the

claimant including length of the treatment relationship, frequency of examination, purpose of

the treatment relationship, extent of the treatment relationship, and examining relationship;

(4) specialization; and (5) other factors. Id. § 416.920c(c)(1)-(5).

Here, Defendant suggests that the ALJ properly declined to analyze the statements in

the disability parking permit because the opinion that Plaintiff was “disabled” did not

constitute a medical opinion, but a statement reserved for the Commissioner. 20 C.F.R. §§

404.150b(c)(3)(i), 416.920b(c)(3). Indeed, a review of the relevant document reveals that it

consists of a prepared form provided by the Florida Department of Highway Safety and Motor

Vehicles, and Dr. Thomas simply checked boxes provided. (Tr. 612). See Hammersley v. Astrue,

No. 5:08-cv-245, 2009 WL 3053707, at *6 (M.D. Fla. Sept. 18, 2009) (“courts have found that

check-off forms . . . have limited probative value because they are conclusory and provide

little narrative or insight into the reasons behind the conclusions”) (citing, inter alia, Spencer ex

rel. Spencer v. Heckler, 765 F.2d 1090, 1094 (11th Cir. 1985)).

Considering the form completed by Dr. Thomas in light of the updated definition of

“medical opinion” at 20 C.F.R. § 416.913(a)(2) (2017), it is not entirely clear that the

information provided on the form constitutes a medical opinion under the updated

regulations. But see Dees v. Comm'r of Soc. Sec., No. 6:19-CV-1903-ORL-MAP, 2020 WL

4530027, at *3 (M.D. Fla. Aug. 6, 2020) (analyzing an opinion contained in a disability

parking permit under the prior regulations governing weighing medical opinions).

To the extent that the form concludes that Plaintiff is “disabled,” the undersigned

agrees that statement is not a medial opinion, but a statement reserved to the Commissioner.

20 C.F.R. §§ 404.150b(c)(3)(i), 416.920b(c)(3). Further, while the regulations define a medical

opinion as a statement about “what you can still do despite your impairments(s),” Dr.

Thomas’s answers on the form indicate that Plaintiff is impaired in the ability to walk 200 feet

without stopping to rest. Meanwhile, medical opinions are defined as statements regarding

“[y]our ability to perform physical demands of work activities, such as sitting, standing,

walking, lifting,” etc., but Dr. Thomas’s statement is narrow, limited, and offers very little

information other than that tailored toward the parking permit application.

In any event, however, even if Dr. Thomas’s completion of the parking permit

application constitutes a medical opinion under the revised regulations, the ALJ’s failure to

evaluate the opinion is harmless. Defendant contends that the opinion is vague in that it does

not specify how long Plaintiff must rest, fails to state that she cannot walk at all, and fails to

state how many hours in an eight-hour workday she can walk. Consequently, Plaintiff argues

that the limitations in the application are not necessarily inconsistent with the ALJ’s RFC

finding that Plaintiff could stand and walk for a combined total of six hours in an eight-hour

workday.

Further, Defendant notes that even if Dr. Thomas’s opinion were credited and Plaintiff

were not able to perform light work, the opinion fails to show that Plaintiff cannot perform

sedentary work. Indeed, two of Plaintiff’s past relevant work positions, appointment clerk and

entry clerk, are sedentary jobs. As explained above, the ALJ’s finding at step four that Plaintiff

was capable of performing her past jobs of appointment clerk, cashier, deli cutter, and entry

clerk as actually performed was based on substantial evidence. Consequently, even if the

Court assumes that Dr. Thomas’s opinion as contained on the parking permit application is

a medical opinion, the ALJ’s failure to expressly consider the opinion is harmless error. See

Sanchez v. Comm’r of Soc. Sec., 507 F. Appx. 855, 856 (11th Cir. 2013). Plaintiff has not

demonstrated that any error on the part of the ALJ in failing to expressly consider the

disability parking permit was harmful. See Shinseki v. Sanders, 556 U.S. 396, 409 (2009)

(stating, “the burden of showing that an error is harmful normally falls upon the party

attacking the agency’s determination.”).

C. The ALJ’s consideration of Plaintiff’s subjective complaints.

Finally, Plaintiff argues that the ALJ failed to apply the proper legal standards to

Plaintiff’s testimony regarding her pain and limitations. Plaintiff contends that the ALJ failed

to discuss or weigh any of the relevant factors listed in 20 C.F.R. § 404.1529(c)(3)(i-vii) when

evaluating Plaintiff’s testimony regarding her pain and limitations.

When a claimant alleges he or she has disabling subjective symptoms, the ALJ must

determine whether the claimant has a condition that could reasonably be expected to cause

the symptoms. 20 C.F.R. §§ 404.1529(c)(1), 416.929(c)(1). If the ALJ determines the claimant

has such a condition, the ALJ will evaluate the alleged symptoms’ intensity and persistence

and how they limit the claimant’s ability to work. Id. The ALJ will consider the claimant’s

testimony regarding his or her symptoms, including any inconsistencies between the

testimony and the other evidence. 20 C.F.R. §§ 404.1529(c)(3)-(4), 416.929(c)(3)-(4). An ALJ

may reject a claimant’s testimony of disabling symptoms as not credible if he provides

“explicit and adequate reasons.” Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). “A

clearly articulated credibility finding with substantial supporting evidence in the record will

not be disturbed by a reviewing court.” Foote, 67 F.3d at 1561-62.

In this case, the ALJ explicitly discussed Plaintiff’s allegations regarding the severity

of her symptoms and found her alleged symptoms were “not entirely consistent with the

medical evidence and other evidence in the record.” (Tr. 21). This finding is indeed supported

by substantial evidence, including the objective medical evidence as a whole and evidence of

relatively normal examination findings regarding gait, normal strength, no neurological

deficits, normal sensation, normal muscle mass, and no swelling or deformity. (Tr. 21, 339,

342, 346, 385, 407, 470, 485, 489). The ALJ’s finding is further supported by the consultative

examination showing full strength in most of Plaintiff’s upper extremities, no muscle atrophy,

full range of motion, and no tenderness or swelling. (Tr. 22, 610).

Other record evidence supporting the ALJ’s finding regarding Plaintiff’s subjective

symptoms is Plaintiff’s report that she could use her hands for her daily activities, aside from

dressing and buttoning clothes. (Tr. 22, 609). The findings of the state agency medical

consultants, Dr. Harris and Dr. Matar, lend further support to the ALJ’s determination, as

they both concluded Plaintiff was capable of a reduced range of light work. (Tr. 23, 56-58, 66-

68, 83-86, 97-100).

As Defendant points out, the ALJ did not simply reject her complaints based on lack

of objective medical evidence. To the contrary, the ALJ relied on objective medical evidence

that contradicted her allegations by demonstrating that she was not as limited as alleged. And,

while the ALJ expressly discussed the relevant evidence and many of the relevant factors from

20 C.F.R. § 404.1529(c)(3)(i-vii), Plaintiff appears to concede that discussing each of the

factors is not necessary. See Parker v. Colvin, No. 8:12-CV-1919-T-24, 2013 WL 3209443, at

*11 (M.D. Fla. June 24, 2013) (observing “there is no reason to require a law judge to discuss

each of the § 404.1529(c)(3) factors in his decision.”).

The Court agrees that the ALJ had explicit and adequate reasons to reject Plaintiff’s

testimony regarding her symptoms and limitations. See Dyer, 395 F.3d at 1210. The ALJ’s

decision should be affirmed because substantial evidence supports the ALJ’s evaluation of

Plaintiff’s condition and the determination regarding her subjective complaints. See Miles v.

Chater, 84 F.3d 1397, 1400 (11th Cir. 1996) (“If the Commissioner's decision is supported by

substantial evidence we must affirm, even if the proof preponderates against it.”).

IV. CONCLUSION

For the reasons stated above, the ALJ’S decision is AFFIRMED under sentence four

of 42 U.S.C. § 405(g). The Clerk is directed to enter judgment accordingly, terminate any

pending motions, and close the file.

DONE and ORDERED in Ocala, Florida on March 8, 2023.

PHILIP R. LAMMENS

United States Magistrate Judge

Copies furnished to:

Presiding District Judge

Counsel of Record

Unrepresented Party

Courtroom Deputy