Barnett-Menzer v. Saul, Acting Commissioner of Social Security

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 19-63005-CIV-ALTMAN/Hunt

ALICE BARNETT-MENZER,

Plaintiff,

v.

ANDREW SAUL,

Commissioner of the Social Security

Administration,

Defendant.

____________________________/

ORDER

The Plaintiff, Alice Barnett-Menzer, appeals the Defendant’s1 termination of her Social

Security Disability Benefits. The primary question we must address in this Order is whether, in

terminating the Plaintiff’s benefits, the Social Security Administration’s Administrative Law Judge

(“ALJ”) properly compared the Plaintiff’s current medical condition to her prior one. Because we find

that the ALJ did make this comparison, we affirm the ALJ’s decision.

PROCEDURAL HISTORY

The parties have filed cross-motions for summary judgment—see Plaintiff’s Motion for

Summary Judgment (“Pl. MSJ”) [ECF No. 12]; Defendant’s Motion for Summary Judgment and

Opposition to Plaintiff’s Motion for Summary Judgment (“Def. MSJ”) [ECF No. 14]—which this

Court referred to United States Magistrate Judge Patrick M. Hunt for a Report and Recommendation

(the “Report”). See Clerk’s Notice of Assignment [ECF No. 2].

1 The Defendant is the Commissioner of the Social Security Administration.

The Magistrate Judge recommended that this Court deny the Plaintiff’s MSJ and grant the

Defendant’s MSJ. See Report [ECF No. 17] at 8. The Plaintiff timely objected. See Objections [ECF

No. 18]. The Court has conducted a de novo review of those portions of the Report to which the

Plaintiff has objected.2 For the following reasons, the Court now OVERRULES the Plaintiff’s

Objections and ADOPTS the Report.

THE FACTS

The Plaintiff alleges that the Defendant erroneously terminated her Social Security benefits. See

Compl. [ECF No. 1] at 1. The Plaintiff first applied for Title II disability insurance benefits on January

16, 2004. See Report at 1. In 2006, an ALJ—citing the reports of the Plaintiff’s orthopedist (Dr.

Dominic Kleinhenz); her pain-management physician (Dr. Sami Dagher); a state agency’s non-

examining, non-treating physician (Dr. I.B. Price); and a quality-assurance examiner (Ellen Shelton)—

found the Plaintiff disabled as of January 16, 2004, with a primary diagnosis of reflex sympathetic

dystrophy. See id. at 2; see also 2006 Comparison Point Decision (“CPD”), Ex. 1A [ECF No. 7] at 73,

80.

Twelve years later, in October 2016, the Social Security Administration (“SSA”) determined

that the Plaintiff’s condition had improved and that she was no longer disabled. See Report at 2. At a

rehearing—conducted at the Plaintiff’s request—the ALJ heard testimony from two witnesses: the

Plaintiff and a vocational expert. See ALJ Decision [ECF No. 7] at 15; Report at 2; Transcript of

10/18/2018 Oral Hearing [ECF No. 7] at 70–72. A few months after that hearing, on February 13,

2 See FED. R. CIV. P. 72(b)(3) (“Resolving Objections. The district judge must determine de novo any part

of the magistrate judge’s disposition that has been properly objected to. The district judge may accept,

reject, or modify the recommended disposition; receive further evidence; or return the matter to the

magistrate judge with instructions.”). The Court has also reviewed the unobjected-to portions of the

Report for clear error and, finding none, adopts those, too. See Thomas v. Arn, 474 U.S. 140, 150 (1985)

(“It does not appear that Congress intended to require district court review of a magistrate [judge]’s

factual or legal conclusions, under a de novo or any other standard, when neither party objects to those

findings.”).

2019, the ALJ issued her final decision, in which she found both that the Plaintiff’s disability had ended

on June 1, 2016 and that the Plaintiff “has not become disabled again since that date.” ALJ Decision

at 15. After the Social Security Appeals Council denied her request for review, the Plaintiff, having

exhausted her administrative remedies, filed this Complaint, in which she asks the Court to overturn

the ALJ’s decision. See Report at 1–2; see also Compl.

To determine whether a claimant suffers from a continuing disability, the ALJ must conduct

a multi-step inquiry—which, in turn, requires the ALJ to ask the following questions:

(1) whether the claimant is engaging in substantial gainful activity; (2) if not

gainfully employed, whether the claimant has an impairment or combination of

impairments that meets or equals a listed condition; (3) if impairments do not meet

a listing, whether there has been medical improvement; (4) if there has been

medical improvement, whether the improvement is related to the claimant’s ability

to do work; (5) if there is improvement not related to the claimant’s ability to do

work, whether an exception to medical improvement applies; (6) if medical

improvement is related to the claimant’s ability to do work or if an exception

applies, whether the complainant has a “severe impairment”; (7) if the claimant

has a severe impairment, whether the claimant can perform past relevant work;

and (8) if the claimant cannot perform past relevant work, whether the claimant

can perform other work.

Klaes v. Comm’r of Soc. Sec., 719 F. App’x 893, 895 (11th Cir. 2017) (citing 20 C.F.R § 404.1594(f)).

At Step One, the ALJ found that, as of the date of her ruling (February 13, 2019), the Plaintiff

had not engaged in substantial gainful activity. See ALJ Decision at 16–17. At Step Two, the ALJ

determined that, since June 1, 2016—and according to the medical evidence—the Plaintiff suffered

from “complex regional pain syndrome, anxiety, migraine, thyroid disorder and chronic fatigue,” but

that, “[s]ince June 1, 2016, the claimant has not had an impairment or combination of impairments

which met or medically equaled the severity of an impairment listed in 20 CFR Part 404, Subpart P,

Appendix 1.” Id. at 17. Specifically, the ALJ concluded that “the claimant does not have anxiety and

obsessive-compulsive disorders”—at least not to a degree of severity that would “meet or medically

equal” a listed impairment. Id.

At Step Three, the ALJ used as a comparison point the SSA’s 2006 CPD, which was the last

time an ALJ had found the Plaintiff disabled.3 Id. at 16–18. From there, the ALJ pointed out that, by

June 1, 2016, the Plaintiff’s medical impairments had improved. See id. (noting that “there had been a

decrease in medical severity of the impairments present at the time of the CPD”). Id. at 18.4

This conclusion required the ALJ to proceed to Step Four—where the ALJ must ask whether

the Plaintiff’s medical improvement was related to her ability to work. Id. The ALJ answered this

question by noting that the Plaintiff’s medical improvement “represents an increase in functional

capacity for basic work activities when compared to the residual functional capacity the claimant had at the time of

the CPD.” Id. (emphasis added). Since the ALJ found that the Plaintiff’s improvements were related to

her ability to do work, the ALJ proceeded to Step Six. See Report at 3; ALJ Decision at 18; see also 20

C.F.R. § 404.1594(f)(4) (“If medical improvement is related to your ability to do work, see step (6).”).

If, at Step Six, the evidence shows that “all [the claimant’s] current impairments in combination

do not significantly limit [the claimant’s] physical or mental abilities to do basic work activities, these

impairments will not be considered severe in nature. If so, [the claimant] will no longer be considered

disabled.” 20 C.F.R. § 404.1594(f)(6). At this step, the ALJ determined that, since June 1, 2016, the

Plaintiff’s impairments “did not cause more than a minimal impact on the claimant’s ability to perform

basic work activities[,]” which “are the abilities and aptitudes necessary to do most jobs,” such as

“walking, standing, sitting, lifting” and “[u]nderstanding, carrying out, and remembering simple

3 The Plaintiff and the ALJ suggest that this 2006 decision was issued on May 8, 2006, see Pl. MSJ at

2; ALJ Decision at 15, while the Defendant and the Magistrate Judge use an earlier date of April 18,

2006, see Def. MSJ at 4; Report at 1. The confusion appears to stem from the fact that the decision is

dated April 18, 2006, even though it took effect on May 8, 2006. See 2006 CPD at 74–75. No problem.

Since everyone appears to be referring to the same 2006 “comparison point decision,” this Court will

refer to it as the “2006 CPD.”

4 At the time of the 2006 CPD, the Plaintiff suffered from “reflex sympathetic dystrophy syndrome,

complex regional pain syndrome secondary to peroneal nerve injury in the left lower extremity” that

“result[ed] in the residual functional capacity to perform less than a full range of even sedentary work.”

ALJ Decision at 17.

instructions[.]” ALJ Decision at 18. The ALJ thus concluded that “the claimant’s impairments present

at the time of the CPD were no longer severe as of June 1, 2016,” and that the Plaintiff’s disability had

ended as of that day. Id. at 18, 26–27 (emphasis added).

In reaching this decision, the ALJ considered the Plaintiff’s testimony, where she had detailed

the various ways in which her pain impeded her daily life. See id. at 19–20. Nevertheless, the ALJ held

that, while “the [Plaintiff’s] medically determinable impairments could have reasonably been expected

to produce the alleged symptoms,” her “statements concerning the intensity, persistence and limiting

effects of these symptoms are not entirely consistent with the objective medical and other evidence.”

Id. at 20 (citing SSR 16-3p). In saying so, the ALJ compared the Plaintiff’s 2016–2018 medical records

to the documentation supporting the 2006 CPD. Id. at 20–26. The ALJ also reviewed a 2016 report

from the Plaintiff’s husband and an investigation report from the Cooperative Disability Investigations

(CDI) Unit (dated June 8, 2016). Id. (describing 2016 CDI Report, Ex. 6D [ECF No. 7] at 197–205).

In that 2016 CDI Report, a CDI investigator reported that she had surveilled the Plaintiff walking her

dogs and driving her car—seemingly without difficulty. Id. The ALJ’s conclusion—that the Plaintiff’s

statements were unsupported by the medical evidence and that the Plaintiff’s symptoms had improved

since the 2006 CPD—led the ALJ to find that the Plaintiff was no longer disabled. Id. at 20. The

Plaintiff now appeals that decision.

STANDARD OF REVIEW

The Court’s review of an ALJ’s decision is “limited to an inquiry into whether there is

substantial evidence to support the findings of the [ALJ], and whether the correct legal standards were

applied.” Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002). This determination—whether the

ALJ applied the correct legal standard—is a legal one subject to de novo review. Graham v. Bowen, 90

F.2d 1572, 1575 (11th Cir. 1986) (cleaned up). “[W]hatever the meaning of ‘substantial’ in other

contexts, the threshold for such evidentiary sufficiency is not high.” Biestek v. Berryhill, 139 S. Ct. 1148,

1154 (2019). “Substantial evidence is 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, 1439

(11th Cir. 1997). The Court may not, however, “reweigh the evidence, or substitute [its] judgment”

for the ALJ’s—even if the “evidence preponderates against the [ALJ’s] decision.” Bloodsworth v. Heckler,

703 F.2d 1233, 1239 (11th Cir. 1983) (cleaned up).

THE REPORT AND OBJECTIONS

The Plaintiff told the Magistrate Judge that the ALJ had erred in one way. As she saw it: “The

ALJ’s determination that Plaintiff no longer has an impairment or combination of impairments that

significant [sic] limits her ability to perform basic work activities is not supported by substantial

evidence.” Pl. MSJ at 1, 16. More specifically, the Plaintiff contended that the ALJ failed to “compare

the medical evidence supporting the most recent final decision holding that the claimant is disabled

with new medical evidence.” Id. at 18 (citing McAulay v. Heckler, 749 F.2d 1500, 1500 (11th Cir. 1985)).

The ALJ, the Plaintiff insisted, had only “summarized” and “engaged in no discussion of the

evidence[,]” “much less a discussion of the evidence that could be construed as a ‘comparison’” of the

original medical evidence and the new medical evidence. Id. To underscore her point, the Plaintiff

asserted that her “original records were not even a reference point upon which the ALJ based his

decision of medical improvement. Thus, it cannot be said that he made a proper comparison as

required by the law of this Circuit.” 5 Id. at 22. “Rather, the entire[t]y of the ALJ’s decision appears to

be based upon a single investigation, conducted by the Miami CDI on June 9, 2016.” Id.

The Magistrate Judge found this argument unpersuasive and recommended that the Plaintiff’s

MSJ be denied. Report at 8. The Magistrate Judge conceded that, while “the ALJ could have perhaps

used more explicitly comparative language, it is clear from her decision in its entirety that she

5 The Plaintiff repeatedly refers to the ALJ—Valencia Jarvis—as “he” and “him.”

compared and contrasted the medical evidence from the previous CPD to the current medical

evidence.” Id. at 7.

In her Objections, the Plaintiff does little more than repeat—often verbatim6—the arguments

she advanced in her MSJ. See generally Objections. Many of her “objections” are thus procedurally

improper. See Holland v. Colvin, 2015 WL 1245189, at *3 (N.D. Ala. Mar. 18, 2015) (holding that, in

objecting to an R&R, a party may not simply restate the arguments it presented to the magistrate judge

(citing VanDiver v. Martin, 304 F. Supp. 2d 934, 937–38 (E.D. Mich. 2004) (“A general objection, or

one that merely restates the arguments previously presented[,] is not sufficient to alert the court to

alleged errors on the part of the magistrate judge. An objection that does nothing more than state a

disagreement with a magistrate’s suggested resolution, or simply summarizes what has been presented

before, is not an ‘objection’ as that term is used in this context.”))).

In any event, what the Plaintiff characterizes as her single Objection—that “[t]he ALJ’s

determination that Plaintiff no longer has an impairment or combination of impairments that

significantly limits her ability to perform basic work activities is not supported by substantial

evidence,” Objections at 1—is really four separate objections sandwiched together. First, the Plaintiff

insists that “the Magistrate Judge wrongfully concluded that the ALJ properly compared and

contrasted the medical evidence from the previous CPD with the current medical evidence.” Id. Second,

6 Compare, e.g., Pl. MSJ at 17 (“The ALJ concluded, at step three of this process, that the medical

evidence supported a finding that, by June 1, 2016, there had been a decrease in medical severity of

the impairments present at the time of the CPD. In support of this contention, the ALJ purported to

consider Plaintiff’s symptoms and whether they were consistent with the objective medical evidence

and other evidence as well as the pinion [sic] evidence. However, the ALJ’s review of this evidence

does not comport with the Regulations or the law of this Circuit. This is error.” (cleaned up)), with

Objections at 1 (“At bar, the ALJ concluded, at step three of this process, that the medical evidence

supported a finding that, by June 1, 2016, there had been a decrease in medical severity of the

impairments present at the time of the CPD. In support of this contention, the ALJ purported to

consider Plaintiff’s symptoms and whether they were consistent with the objective medical evidence

and other evidence, as well as the opinion evidence. However, the ALJ’s review of this evidence does

not comport with the Regulations or the law of this Circuit. This is error.” (cleaned up)).

the Plaintiff alleges that the Magistrate Judge failed to address the ALJ’s “heavy” reliance on the 2016

CDI Report. Id. at 4. Here, the Plaintiff asserts that “heavy reliance on daily activities to discredit a

Plaintiff’s testimony regarding her pain is inappropriate.” Id. Third, the Plaintiff objects that “the

current medical records, when compared to the previous medical records, do not, in any way,

demonstrate medical improvement.” Id. at 3. Fourth, the Plaintiff maintains that the “ALJ made no

connection between Plaintiff’s ability to walk outside so that her small dogs could relieve themselves

with her ability to engage in sustained work activity as contemplated by SSR 96-8p.” Id. at 4.

The Defendant failed to respond to these Objections, see Docket, and the time to do so has

passed, see S.D. FLA. L.R. MAGISTRATE RULES 4(b) (“Any party may respond to another party’s

objections . . . .” (emphasis added)). Since the Defendant had no obligation to respond, its failure to

do so does not preclude summary judgment here. See Almodovar v. Berryhill, 2017 WL 6947442, at *1

(S.D. Fla. Nov. 30, 2017) (Scola, J.) (“grant[ing] the Commissioner’s motion for summary judgment”

even though “the Commissioner did not submit a response” to the plaintiff’s objections to the

magistrate judge’s report and recommendation).

ANALYSIS

I. OBJECTION I: NO COMPARISON

In her first Objection, the Plaintiff argues that the ALJ “engaged in no discussion of the evidence

that could be construed as a ‘comparison’ between the evidence prior to and after” the 2006 CPD.

Objections at 3 (emphasis added); see also id. at 4 (repeating that the ALJ “engaged in no comparison

between the prior medical and the more recent medical evidence” (emphasis added)). The Plaintiff is

simply mistaken.

“A claimant’s continued entitlement to disability benefits must be reviewed periodically.”

Gombash v. Comm’r of Soc. Sec., 566 F. App’x 857, 858 (11th Cir. 2014) (citing 20 C.F.R. § 404.1594(a)).

The Commissioner may terminate benefits “upon finding there has been medical improvement in the

claimant’s impairment or combination of impairments related to the claimant’s ability to work and the

claimant is now able to engage in substantial gainful activity.” Id. (citing 42 U.S.C. § 423(f)(1)). Medical

improvement is defined as:

any decrease in the medical severity of your impairment(s) present at the time of the

most recent favorable medical decision that you were disabled or continued to be

disabled and is determined by a comparison of prior and current medical evidence

which must show that there have been changes (improvement) in the symptoms, signs

or laboratory findings associated with that impairment(s).

20 C.F.R. § 404.1594(c)(1). While “a comparison of the original medical evidence and the new medical

evidence is necessary to make a finding of improvement[,]” McAulay, 749 F.2d at 1500 (citing Vaughn

v. Heckler, 727 F.2d 1040, 1043 (11th Cir. 1984)), “there is no strict requirement for evaluation of prior

objective findings,” Plain v. Saul, 2021 WL 647135, at *6 (S.D. Fla. Jan. 29, 2021) (citing 20 C.F.R.

§404.1594(c)(1)), report and recommendation adopted, 2021 WL 633764 (S.D. Fla. Feb. 18, 2021). Thus,

although the regulations require the ALJ to compare the original supporting medical evidence with

the recent medical evidence, “[i]t is not clear . . . that the regulations require that the ALJ evaluate and

compare every item of medical evidence available at the time of the CPD.” Trombetta v. Comm’r of Soc.

Sec., 2018 WL 7116085, at *6 (M.D. Fla. Dec. 20, 2018), report and recommendation adopted, 2019 WL

314570 (M.D. Fla. Jan. 24, 2019) (emphasis added & cleaned up).

The Plaintiff contends that the ALJ conducted “no comparison” between her more recent

records (2016–18) and her 2006 records. Objections at 4 (emphasis added). In saying so, the Plaintiff

analogizes her case to McAulay, see id. at 3, where the Eleventh Circuit reversed the district court’s

order terminating the claimant’s benefits because, “[w]hile the original medical records are referred to

by the ALJ, no comparison was made in this case.” 749 F.2d at 1500 (emphasis added). As the emphasized

portion indicates, however, McAulay is inapposite here because our ALJ did compare the record

supporting the 2006 CPD to the current medical evidence and found that the Plaintiff had shown

“improvement.” ALJ Decision at 24; see Report at 5–6.

An “ALJ’s references to ‘improvement’ implie[s] a comparison to [a plaintiff’s] condition

during the disability period” and allows a reviewing court to “draw the specific and legitimate inference

that the ALJ compared the medical evidence from the date of possible improvement to the medical

evidence used to determine that [a plaintiff] was disabled.” Attmore v. Colvin, 827 F.3d 872, 877 (9th

Cir. 2016) (cleaned up) (citing Magallenes v. Bowen, 881 F.2d 747, 755 (9th Cir. 1989)); see also Trombetta,

2018 WL 7116085, at *6 (finding that “the ALJ actually compared prior and current medical evidence

at least to the extent of acknowledging that prior evidence showed active cancer and current evidence

showed no cancer”).

After poring over the Plaintiff’s recent medical records (2016–18), the ALJ noted that, in 2006,

Dr. Kleinhenz had found that “the claimant could stand for 1 hour,” “sit for 8 hours,” and “walk less

than 1 hour out of an 8-hour workday, lift up to 20 pounds occasionally and would need to lie down

‘substantial periods[.]’” ALJ Decision at 24–25. The ALJ then observed that “this [Dr. Kleinhenz’s

report] is an old record (March 2006) and there are more recent records showing improvement

subsequent to this report[.]” Id. (emphasis added). By reviewing the two sets of records—Dr.

Kleinhenz’s report and the Plaintiff’s “more recent records”—and finding the one more probative

than the other, the ALJ was necessarily comparing the two.7 And, as in Attmore, the ALJ’s reference to

“‘improvement’ implied a comparison.” Attmore, 827 F.3d at 877.

The ALJ’s explicit comparison between Dr. Kleinhenz’s 2006 report and the more recent

evidence thus belies the Plaintiff’s contention that the ALJ engaged in “no comparison” at all. And the

Plaintiff never makes the subtler argument—that the ALJ’s failure to compare every document from

the 2006 CPD to the recent medical evidence constitutes reversible error, probably because there is

7 See compare, Merriam-Webster Unabridged, https://www.merriam-webster.com/dictionary/inconsistent

(last visited Mar. 30, 2021) (defining to compare as follows: “to examine the character or qualities of

especially in order to discover resemblances or differences; to view in relation to”).

no such rule. As far as this Court is aware, neither the Eleventh Circuit nor any district court within it

has ever held that an ALJ must compare every last shred of old evidence—no matter how

duplicative—to the new records before a determination of improvement can be made. To the

contrary, the cases are uniform in reversing the ALJ’s findings of improvement only where “no

comparison was made.” McAulay, 749 F.2d at 1500 (emphasis added).8 Indeed, as we’ve said, the Ninth

Circuit has even upheld an ALJ’s “improvement” finding without an explicit comparison where the

ALJ’s “references to ‘improvement’ . . . implied a comparison.” Attmore, 827 F.3d at 877.

Notably, at least one court in our Circuit has held that the ALJ’s failure “to obtain all the prior

medical evidence used to initially determine Plaintiff was disabled” was harmless error, where the

ALJ’s finding was, as here, supported by substantial evidence. See Trombetta, 2018 WL 7116085, at *6.

Harmless error, of course, implies some error. Now, as we’ve said, an ALJ need not compare every old

medical report to the new evidence when her findings are otherwise supported by substantial

evidence—particularly where the old reports are redundant and (largely) duplicative. But, even if the

ALJ were obliged to compare every old record to the new evidence, an ALJ’s omission of some of that

old evidence would still constitute harmless error so long as it did not “result in unfairness or clear

prejudice.” Brown v. Shalala, 44 F.3d 931, 935 (11th Cir. 1995); see also id. (“In evaluating the necessity

for a remand, we are guided by whether the record revealed evidentiary gaps which result in unfairness

or clear prejudice.” (cleaned up)). And it’s the Plaintiff who bears the burden of showing that the error

8 See also, e.g., Klaes, 719 F. App’x at 897 (reversing and remanding because the “ALJ did not mention,

much less compare, the medical evidence of [plaintiff] Klaes’s impairments” that had supported the 2003

CPD (emphasis added)); Olivo v. Colvin, 2017 WL 708743, at *5 (M.D. Fla. Jan. 30, 2017) (“[T]he ALJ

at no point in the Decision discussed or cited the medical evidence predating the

CPD. . . . Accordingly, the ALJ’s finding that ‘medical improvement occurred as of January 1, 2012’

cannot stand[.]” (cleaned up)); Santiago v. Barnhart, 386 F. Supp. 2d 20, 23 (D.P.R. 2005) (holding that

“there is no basis on the record to support the ALJ’s finding that [claimant] is no longer disabled”

because “[t]here does not seem to be any such comparison in the ALJ’s decision” (emphasis added)).

wasn’t harmless. See Trombetta, 2018 WL 7116085, at *6.9 But the Plaintiff has advanced no harmless-

error arguments here, see generally Pl. MSJ; Objections—and so, she’s waived the point, see, e.g., Hamilton

v. Southland Christian Sch., Inc., 680 F.3d 1316, 1319 (11th Cir. 2012) (“[T]he failure to make arguments

and cite authorities in support of an issue waives it.”); In re Egidi, 571 F.3d 1156, 1163 (11th Cir. 2009)

(“Arguments not properly presented in a party’s initial brief or raised for the first time in the reply

brief are deemed waived.”); Case v. Eslinger, 555 F.3d 1317, 1329 (11th Cir. 2009) (“A party cannot

readily complain about the entry of a summary judgment order that did not consider an argument they

chose not to develop for the district court at the time of the summary judgment motions.”).

In any event, as we’ve suggested, the Plaintiff cannot show that she was prejudiced by the

ALJ’s failure to cite every medical record from 2006 because the ALJ expressly compared the 2006

CPD’s overall findings to the current medical evidence and found “improvement.” As the ALJ

explained, “here [in 2006] it was said that on her left foot it was painful to stand or walk any distance,

however, this is not supported by the objective evidence in the record.” ALJ Decision at 25 (emphasis

added). This reference to pain in the Plaintiff’s left foot was a reference to the 2006 CPD, which is

9 See also Gombash v. Comm’r of Soc. Sec., 566 F. App’x at 858 (“The burden ultimately rests with the

claimant to prove that he is disabled and entitled to Social Security benefits.” (citing 20 C.F.R.

§ 404.1512(a))); Simpson v. Schweiker, 691 F.2d 966, 969 (11th Cir. 1982) (“We must ascertain whether

the Secretary’s finding of improvement to the point of no disability is supported by substantial

evidence. In each case, the burden remains with the claimant to prove the existence of a disability.”),

superseded by statute on other grounds as stated in Elam v. R.R. Ret. Bd., 921 F.2d 1210, 1214 (11th Cir. 1991);

accord Crosby v. Schweiker, 650 F.2d 777, 778 (5th Cir. 1981) (“In a case in which benefits have been

terminated, as in a case in which benefits have been denied, the burden of proving disability is on the

claimant, not on the Secretary.” (quoting Myers v. Richardson, 471 F.2d 1265, 1268 (6th Cir. 1972)));

Tomaszewski v. Colvin, 2015 WL 893523, at *3 (M.D. Ga. 2015) (stating that the Eleventh Circuit has

“clearly explained that even in benefits continuation cases, the burden remains with the claimant to

prove the existence of a disability, and only the inquiry changes.” (cleaned up) (quoting Simpson, 691

F.2d at 969)); Fields v. Harris, 498 F. Supp. 478, 488 n.5 (N.D. Ga. 1980) (“The claimant bears the

ultimate burden of proving his disability. This is true whether the case involves an initial application

for disability benefits or an appeal of the secretary’s decision to terminate benefits, i.e., a cessation

case.” (citing McCarty v. Richardson, 459 F.2d 3, 4 (5th Cir. 1972))).

replete with details about the pain in the Plaintiff’s left foot.10 Indeed, in the same paragraph in which

she recounted the 2006 evidence of left foot pain, the ALJ noted that Dr. Ronald L. Seifer, a

psychologist who saw the Plaintiff in 2016, corroborated the 2006 findings by “observ[ing] [the

claimant] walking with a slow, careful gait.” Id. (citing Seifer Report, Ex. 16F [ECF No. 7] at 506–09).

But the ALJ rejected these findings—both the ones from 2006 and Dr. Seifer’s from 2016—

as “inconsistent” with the more recent records. Id. The latter included the May 2016 medical reports

from the offices of IDL Medical, which determined that the Plaintiff’s “gait was normal, muscle

strength was normal and there were no motor or sensory deficits as well as no deformities or

tenderness of the extremities. Further, her mood and affect were unremarkable. In fact, the claimant

admitted that she felt well.” Id. at 24 (citing IDL Medical Treatment Records, 05/04/2016–

05/17/2016, Ex. 13F [ECF No. 7] at 488–90). And, the ALJ added, the 2006 records were inconsistent

with the July 2016 treatment records from Resolute Pain Solutions, which concluded that “[the

Plaintiff] was able to dorsiflex and plantar flex her left foot, strength was 5/5 in all muscle groups,”

and noted that she “admitted to 80–90% relief with left lumbar sympathetic blocks.” Id. (citing

Resolute Pain Solutions Treatment Records, 06/27/2016–10/18/2017, Ex. 21F [ECF No. 7] at 558–

87). Finally, the ALJ found the 2006 evidence inconsistent with the 2016 CDI Report, which observed

that the Plaintiff “showed good dexterity and strength” in her “legs as she demonstrated no apparent

discomfort, while walking, maintaining control of her dogs or when lifting her legs” and added that

10 See, e.g., 2006 CPD, Ex. 1A [ECF No. 7] at 80–82 (“Sami Dagher, M.D. the claimant’s pain

management physician, on March 7, 2006 diagnosed left lower extremity sympathetically mediated

pain.” (emphasis added)); id. at 81 (“[I]t had been agreed upon by all treating sources and the records

indicated the claimant had not responded well to treatment with continuing severe pain as well as

swelling discoloration, reduced range of motion and severe sensitivity in the left ankle and foot.”

(emphasis added)); see id. at 80 (“Dr. Kleinhenz diagnosed the claimant with a complex regional pain

syndrome secondary to peroneal nerve injury in the left lower extremity[,]” “defined her pain as being

‘moderately severe” in nature[,]” “stated the claimant could sit eight hours, stand one hour and walk

less than one hour in an entire eight hour day,” and concluded that “[l]ifting would be limited to

twenty pounds with no repetitive sustained usage of the left lower extremity” (emphasis added)).

she “maintained good balance and . . . ambulated with a steady pace.” Id. at 21 (citing 2016 CDI

Report, Ex. 6D [ECF No. 7] at 197–205).

The ALJ’s conclusion that the 2016–18 records were “inconsistent” with something else

necessarily implies that the 2016–18 evidence was “not compatible with another fact or claim.” See

inconsistent, Merriam-Webster Unabridged, https://www.merriam-webster.com/dictionary/inconsistent

(last visited Mar. 30, 2021). And, as we’ve seen, the other “fact or claim” with which the 2016–18

evidence was “inconsistent” was the Plaintiff’s (claimed) debilitating foot pain—which, in turn, the

ALJ drew from the 2006 reports, as corroborated by the 2016 observations of Dr. Seifer.

The ALJ, in short, engaged in extensive summaries of both the 2005–06 and 2016–18

evidence, see ALJ Decision at 26–27; compared the 2005–06 evidence—citing specifically to Dr.

Kleinhenz’s 2006 report—to the recent medical reports, see id. at 24–26; and found “improvement” in

the Plaintiff’s functionality and pain relief over time, see, e.g., id. at 24–25. The record is thus sufficient

for the Court to OVERRULE the Plaintiff’s first Objection, which inaccurately criticized the ALJ

for engaging in “no comparison” at all. See Objections at 4 (emphasis added).11

11 The ALJ gave “little weight” to the December 23, 2005 opinion of an Edward Holfield, M.D.—the

state agency’s medical consultant who had stated in 2005 that the Plaintiff could walk, stand, and carry

certain things—because it was “not supported by the objective medical evidence of record at that

time, which noted the claimant was not able to heel or toe walk.” ALJ Decision at 25 (citing Physical

RFC Assessment by Edward Holfield, M.D., 12/23/2005, Ex. 5F [ECF No. 7] at 355–62). But the

2006 CPD cited the reports of a different doctor—I.B. Price, M.D.—which were dated July 25, 2005

and August 15, 2005. See 2006 CPD at 80 (noting that the “state agency non-examining non-treating

physician, I.B. Price, M.D. on both July 25, 2005 and August 15, 2005 reviewed the claimant’s file”

and determined that the Plaintiff had “reflex sympathetic dystrophy, dystrophic phase and stated that

he believed she is capable of ‘minimal sedentary level work with restrictions’”). And Dr. Price’s reports

appear nowhere in our record—a regrettable omission, to be sure. But no one—not the ALJ or the

Commissioner or the Magistrate Judge, not even the Plaintiff—ever mentions this discrepancy. The

Plaintiff, we suppose, could have pointed to this lacuna as evidence that the record is incomplete, that

the ALJ’s decision was erroneous, and that the ALJ’s error wasn’t harmless. But, by not asserting any

of these claims—indeed, by failing even to note the absence of Dr. Price’s reports—she has waived

any such objection here, see (again) Hamilton, 680 F.3d at 1319 (11th Cir. 2012) (“[T]he failure to make

arguments and cite authorities in support of an issue waives it.”). We add here only that, had she raised

the issue, the Plaintiff would’ve had a steep hill to climb because Dr. Price never treated her and did

II. OBJECTION II: THE 2016 CDI REPORT

In her second Objection, the Plaintiff argues that the Magistrate Judge “did not even address

the ALJ’s heavy reliance on this singular incident”—by which she means the 2016 CDI Report’s

observations. Objections at 4. This Objection is likewise unfounded.

It’s true that “participation in everyday activities of short duration,” like household chores,

“should not disqualify a claimant from disability.” Varner v. Astrue, 2011 WL 1196422, at *6 (M.D. Fla.

Mar. 29, 2011) (cleaned up) (quoting Lewis, 125 F.3d at 1441). But, when an ALJ assesses “the evidence

about the intensity, persistence, and functionally limiting effects of pain or other symptoms,” then “[a]

claimant’s daily activities may be considered in evaluating and discrediting a claimant’s subjective

complaints.” Conner v. Astrue, 415 F. App’x 992, 995 (11th Cir. 2011) (citing Harwell v. Heckler, 735 F.2d

1292, 1293 (11th Cir. 1984)).

There was thus nothing untoward about the ALJ’s decision to use the 2016 CDI Report’s

observations of the Plaintiff’s “daily activities” in “evaluating and discrediting” the Plaintiff’s

“subjective complaints.” Nor has the Plaintiff cited any case for the proposition that there was. It’s

true, perhaps, that an ALJ shouldn’t rely exclusively on an undercover investigator’s “singular” report

of a claimant’s daily activities. Objections at 4. But that’s not what we have here. As the Magistrate

Judge correctly noted, the ALJ relied on a wide array of recent evidence, including “the CDI

investigative report, the multiple medical opinions from 2016 to 2018, and the state agency reviewing

medical consultant’s report[.]” Report at 7 (emphasis added). The ALJ did, admittedly, afford “great

weight” to the opinion of the medical consultant who, in turn, relied on the June 2016 surveillance of

little more than summarize the findings of other doctors that do appear elsewhere in the 2006 CPD.

See 2006 CPD at 80. Since the ALJ did compare those other findings—including and especially the

findings of Dr. Kleinhenz—to the recent medical evidence, it’s likely that the ALJ’s failure to reference

Dr. Price’s summations would’ve constituted (at most) harmless error. See (again) Trombetta, 2018 WL

7116085, at *6 (finding harmless the ALJ’s failure “to fully develop the record by failing to obtain all

the prior medical evidence used to initially determine Plaintiff was disabled”).

the Plaintiff—in which she was seen walking her dogs and driving her car without incident. ALJ

Decision at 25–26. But the ALJ also “clearly articulated explicit and adequate reasons for discrediting

the claimant’s allegations of completely disabling symptoms.” Dyer v. Barnhart, 395 F.3d 1206, 1210

(11th Cir. 2005). In fact, the ALJ explained that she afforded the CDI “great weight” only because “it

is supported by Exhibit[s] 13F [the IDL Medical Treatment Records] and 21F [the Resolute Pain

Solutions Treatment Records] and the other evidence found in the medical record.” ALJ Decision at

26 (emphasis added).

These medical reports, in turn, corroborated the CDI’s findings and undermined the Plaintiff’s

testimony. So, for example, according to the IDL Medical Treatment Records, the “Patient denies

muscle pain, muscle swelling, joints pain, joint stiffness, limitation of motion, weakness, muscle

atrophy, or cramps[.]” IDL Medical Treatment Records, 05/24/2016–05/27/2016, Ex. 13F [ECF

No. 7] at 488–89. They also noted that the Plaintiff’s “[m]otor examination reveals normal gait, normal

heel-to-toe movement, and normal strength bilaterally.” Id. And, in fact, they pointed out that the

Plaintiff admitted “she fe[lt] well.” Id. at 488. The Resolute Pain Solutions Treatment Records,

meanwhile, observed that the “lumbar sympathetic blocks” Dr. Steven Stein had used to treat the

Plaintiff more than a year before had “provided her substantial long-lasting relief[.]” Resolute Pain

Solutions Treatment Records, 06/27/2016–10/28/2017, Ex. 21F [ECF No. 7] at 560. Indeed, Dr.

Stein noted that the Plaintiff “has had excellent pain relief following lumbar sympathetic blocks.” Id.

at 562. The Resolute records also reveal that, even when the Plaintiff experienced pain in her left foot

in 2017, her doctor observed a “[n]onantalgic and non-spastic gait pattern” that allowed her “to elevate

on heels and toes.” Id. at 560–61. As we’ve seen, the medical evidence from the 2006 CPD specifically

found that the Plaintiff was “not able to heel or toe walk.” ALJ Decision at 25. Even without any

reference to the 2016 CDI Report, then, these 2016–17 medical records strongly supported the ALJ’s

finding of “improvement.”

The Court thus OVERRULES the Plaintiff’s second Objection.

III. OBJECTION III: SUBSTANTIAL EVIDENCE

In her third Objection, the Plaintiff offers a more general critique. The ALJ and the Magistrate

Judge (she says) were simply wrong to conclude that the Defendant’s decision to terminate her benefits

was supported by substantial evidence. See Objections at 1, 5.

But substantial evidence “means—and means only—‘such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.’” Biestek, 139 S. Ct. at 1154 (quoting

Consolidated Edison Co. v. Labor Bd., 305 U.S. 197, 229 (1938)). “When a decision is supported by

substantial evidence, we must affirm, even if we find that the evidence preponderates against the

Commissioner’s decision.” Duval v. Comm’r of Soc. Sec., 628 F. App’x 703, 708 (11th Cir. 2015) (cleaned

up) (quoting MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986)). This Court may not “reweigh

the evidence, or substitute [its] judgment” for the ALJ’s—even if the “evidence preponderates against

the [ALJ’s] decision.” Bloodsworth, 703 F.2d at 1239 (11th Cir. 1983) (citation omitted).

The ALJ’s Decision is no model of clarity. But its central finding that the Plaintiff’s condition

has improved is supported by a substantial and eclectic variety of medical and non-medical sources.

These include the CDI Report, the state agency medical consultant’s report, the IDL Medical

Treatment Records, and the Resolute Pain Solutions Treatment Records—all of which (as we’ve seen)

the ALJ properly analyzed, summarized, and compared to the 2006 CPD. We cannot here second-

guess the result.

The Plaintiff’s third Objection to the Report is, therefore, OVERRULED.

IV. OBJECTION IV: CLEAR ERROR

In her fourth Objection, the Plaintiff criticizes the ALJ for making “no connection between

the Plaintiff’s ability to walk outside so that her small dogs could relieve themselves with her ability to

engage in sustained work activity[.]” Objections at 4.

Here, the Plaintiff challenges only the ALJ’s underlying decision—rather than the Magistrate

Judge’s Report. This Objection is thus procedurally improper because it fails to explain how the

Magistrate Judge erred. Were we to ignore the Magistrate Judge’s findings and allow parties to re-raise

arguments they’ve already presented to the Magistrate Judge, we’d eviscerate the substantial benefits

that magistrate judges provide. See Holland, 2015 WL 1245189, at *3 (holding that, in objecting to an

R&R, a party may not simply restate the arguments it presented to the magistrate judge (citing

VanDiver, 304 F. Supp. 2d at 937–38 (“A general objection, or one that merely restates the arguments

previously presented[,] is not sufficient to alert the court to alleged errors on the part of the magistrate

judge. An objection that does nothing more than state a disagreement with a magistrate’s suggested

resolution, or simply summarizes what has been presented before, is not an “objection” as that term

is used in this context.”))). Since this final Objection is improper, we review it only for clear error. See

FED. R. CIV. P. 72(b)(3) (“The district judge must determine de novo any part of the magistrate judge’s

disposition that has been properly objected to.” (emphasis added)).

In any event, the fourth Objection assumes that the ALJ’s finding that the Plaintiff could

return to work was drawn exclusively from the observations of the 2016 CDI Report. But, as we’ve

shown, the ALJ explained that the “claimant’s statements concerning the intensity, persistence and

limiting effects of [her] symptoms are not entirely consistent with the objective medical and other

evidence.” ALJ Decision at 20 (emphasis added). She also determined that, since June 1, 2016, the

Plaintiff’s impairments “did not cause more than a minimal impact on the claimant’s ability to perform

basic work activities.” Id. at 18. And she concluded that “the claimant has not had a severe impairment

or combination of impairments since June 1, 2016.” Id. at 27. As we’ve indicated, the ALJ made these

findings only after reviewing a mountain of documentary evidence, which included the medical

observations of different doctors—some at Resolute Pain Solutions; others at IDL Medical—who

treated the Plaintiff over several years. Although the ALJ corroborated these medical observations

with the surveillance detailed in the 2016 CDI Report, she never said—and we don’t take her to have

suggested—that her findings derived exclusively (or even mostly) from a “singular” dog-walking

incident.

Because the Report hasn’t left this Court “with a definite and firm conviction that a mistake

has been committed,” Krys v. Lufthansa German Airlines, 119 F.3d 1515, 1523 (11th Cir. 1997), the

Plaintiffs final Objection is likewise OVERRULED.

240k

Having carefully reviewed the record and the governing law, the Court hereby ORDERS

AND ADJUDGES as follows:

1. The Report [ECF No. 17| is ADOPTED as set out in this Order.

2. ‘The Plaintiffs Motion for Summary Judgment [ECF No. 12] is DENIED.

3. The Defendant’s Motion for Summary Judgment [ECF No. 14] is GRANTED.

4. ‘The Clerk shall CLOSE this case.

5. All other pending motions ace DENIED as moot, all hearings are CANCELLED, and

any deadlines are TERMINATED.

6. Pursuant to FED. R. Civ. P. 58, the Court will enter final judgment separately.

DONE AND ORDERED in Fort Lauderdale, Florida, this 30th day of March 2021.

ROYK.ALTMAN —————w

UNITED STATES DISTRICT JUDGE

cc: counsel of record

19