# Lee v. Commissioner of Social Security

> District Court, S.D. Florida · September 13, 2022

URL: https://www.frixlaw.com/law-library/cases/10121063

## Case

- **Court:** District Court, S.D. Florida
- **Decided:** September 13, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10121063

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

CASE NO. 21-20244-CIV-ALTONAGA/Torres

JEAN LEE,

Plaintiff,
v.

KILOLO KIJAKAZI,
Commissioner of Social Security,

Defendant.
____________________________/

ORDER

THIS CAUSE came before the Court on Magistrate Judge Edwin G. Torres’s Report and
Recommendation (“Report”) [ECF No. 42], entered on August 26, 2022. On January 21, 2021,
Plaintiff, Jean Lee filed a Complaint [ECF No. 1] seeking review of the denial of her claims for
disability benefits and supplemental security income benefits under the Social Security Act. The
Clerk referred the matter to Magistrate Judge Edwin G. Torres for a report and recommendation
on dispositive matters. (See Clerk’s Notice [ECF No. 2]).
Defendant filed the Administrative Record [ECF No. 22] on September 14, 2021.
Plaintiff and Defendant filed Motions for Summary Judgment on February 14, 2022 [ECF No.
33] and March 17, 2022 [ECF No. 38], respectively. Defendant filed a Response to Plaintiff’s
Motion [ECF No. 39], to which Plaintiff filed a Reply [ECF No. 40]. Plaintiff also filed a
Response to Defendant’s Motion [ECF No. 41].
The Magistrate Judge recommends that the Court deny Plaintiff’s Motion; grant
Defendant’s Motion; and affirm the decision of the Administrative Law Judge (“ALJ”). (See
generally Rep.). On September 5, 2022, Plaintiff timely filed her Objections [ECF No. 44] to the
Report, to which Defendant filed a Response [ECF No. 45]. For the following reasons, the
Report is affirmed and adopted.
When a magistrate judge’s “disposition” has been properly objected to, district courts
must review the disposition de novo. Fed. R. Civ. P. 72(b)(3). Given Plaintiff’s Objections, the

Court has reviewed the Report de novo.
Plaintiff seeks Social Security Disability Insurance and Supplemental Security Income
benefits for a series of alleged restrictions. (See Pl.’s Mot. 1).1 The ALJ found that Plaintiff has
“osteoarthritis, degenerative changes of the lumbar spine, major depressive disorder; generalized
anxiety disorder, and panic disorder without agoraphobia” but nonetheless concluded she is not
disabled under sections 216(i) and 223(d) of the Social Security Act and denied her claim.
(Admin. R. 22, 34). Plaintiff raised five arguments in seeking reversal of the ALJ’s decision (see
Pl.’s Mot. 1–2), all of which the Magistrate Judge rejected (see Rep. 3). The Court addresses
each in turn.
First, Plaintiff argued that the Appeals Council (“AC”) failed to properly consider two

new pieces of evidence that Plaintiff submitted after the ALJ’s decision. (See Pl.’s Mot. 9). The
AC reviews ALJ decisions when 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. §
416.1470(a)(5). It must “consider whether that new evidence renders the denial of benefits
erroneous.” Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1262 (11th Cir. 2007). The
AC cannot simply “perfunctorily adhere[] to the ALJ’s decision[,]” but “nothing” requires it “to
provide a detailed discussion of a claimant’s new evidence when denying a request for review.”

1 The Court uses the pagination generated by the electronic CM/ECF database, which appears in the
headers of all court filings.
Mitchell v. Comm’r of Soc. Sec. Admin., 771 F.3d 780, 783 (11th Cir. 2014) (alterations added).
Plaintiff submitted addenda “to the Sworn Statement from Mrs. Lee’s treating
psychiatrist, Dr. Valdivia, and medical source statement and mental capacities evaluation from
her treating therapist, Mr. Jeffrey Miller[.]” (Pl.’s Mot. 9 (alteration added; citation omitted)).

Both documents state that Plaintiff’s medical condition has been “the same” for several years.
(Rep. 9 (citations omitted)). The AC did not find there was a reasonable probability that the new
evidence would have changed the ALJ’s decision. (See Admin. R. 8).
Plaintiff seems to contend that the ALJ’s decision depended on her initially proffered
medical source statements not corresponding with the onset of her alleged disability. (See Pl.’s
Mot. 10–12). This would be significant because “[s]ocial security law requires a continuous
period of disability of 12 months for a claimant to be found disabled.” Falcon v. Heckler, 732
F.2d 827, 830 (11th Cir. 1984) (alteration added; citing 20 C.F.R § 404.1505(a)). Plaintiff insists
that if the AC had considered evidence that her condition had persisted for more than 12 months,
it would have found that Plaintiff was disabled. (See Pl.’s Mot. 10–12).

This argument does not persuade. The record already contained evidence that Dr.
Valdivia and Mr. Miller thought Plaintiff’s condition had lasted for longer than 12 continuous
months when the ALJ issued the initial decision. (See, e.g., Admin. R. 503, 516). That renders
the subsequent Valdivia and Miller addenda cumulative. See Cabrera v. Colvin, No. 14-cv-
23071, 2015 WL 11202374, at *8 (S.D. Fla. Aug. 24, 2015) (“Indeed, the additional records
appear to be cumulative and related to previous treatment notes that were already considered by
the ALJ.”). Cumulative subsequent evidence is not “new” and does not warrant reversal. Meyer
v. Astrue, 662 F.3d 700, 705 (4th Cir. 2011) (citation omitted).
Second, Plaintiff argued that the ALJ failed to find Dr. Valdivia and Mr. Miller’s medical
opinions persuasive because he did not “properly assess” them under new federal regulations.
(Pl.’s Mot. 12). Claims filed after March 27, 2017 are governed by 20 C.F.R. section 404.1520c.
Under the new regulations, the Commissioner “will not defer or give any specific evidentiary
weight, including controlling weight, to any medical opinion(s) or prior administrative medical

finding(s), including those from [the claimant’s] medical sources.” Id. § 404.1520c(a) (alteration
added).
Rather, the five factors listed in section 404.1520c(c) control. These include (1)
supportability, (2) consistency, (3) relationship with the claimant, (4) specialization, and (5)
other factors. See id. § 404.1520c(c). The ALJ need only explain how he or she considered the
first two, “which are the most important factors.” Matos v. Comm’r of Soc. Sec., No. 21-11764,
2022 WL 97144, at *4 (11th Cir. Jan. 10, 2022) (citing 20 C.F.R. § 404.1520c(b)(2)). The other
three are optional. See id.
The first factor, supportability, provides that the “more relevant the objective medical
evidence and supporting explanations presented by a medical source are to support his or her

medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical
opinions or prior administrative medical finding(s) will be.” 20 C.F.R. § 404.1520c(c)(1). The
second, consistency, states that the “more consistent a medical opinion(s) or prior administrative
medical finding(s) is with the evidence from other medical sources and nonmedical sources in
the claim, the more persuasive the medical opinion(s) or prior administrative medical finding(s)
will be.” Id. § 404.1520c(c)(2). These factors cut against Dr. Valdivia and Miller’s opinions.
Beginning with Dr. Valdivia, the ALJ concluded his opinion was “not persuasive”
because it was neither “supported by his treatment notes” nor “[]consistent with the evidence of
record as a whole.” (Admin. R. 32 (alteration added)). Dr. Valdivia opined that Plaintiff had
“marked limitations” when it came to remembering information; interacting with others;
concentrating, persisting, or maintaining pace; and adapting or managing herself (id. 30, 514–
15); and poor limitations when it came to performing the activities of daily living, using
judgment, achieving quantity and quality goals, responding to time limits in a work situation,

performing work requiring regular contact with others, relating appropriately to supervisors and
coworkers, relating appropriately to the public, and maintaining socially appropriate behavior
and adherence to basic standards of neatness and cleanliness (see id. 31, 522–23). He also
estimated that she would miss between 70 to 100 percent of work each month due to her
condition. (See id. 524).
The ALJ found these opinions were unsupported by — and inconsistent with — the
record. Dr. Valdivia’s mental status evaluations, conducted over the course of a year,
documented that Plaintiff possessed “intact thought processes, normal thought content, mostly
intact memory, and fair judgment and fair sleep.” (Id. 32, 424–427, 436–441, 486–491). The
stark contrast between Dr. Valdivia’s notes and his proffered opinion undermines his credibility

and is precisely the sort of inconsistency that renders a medical opinion unpersuasive. See, e.g.,
Alia D. v. Kijakazi, No. 21-cv-366, 2022 WL 3718600, at *12 (D. Minn. July 27, 2022)
(concluding that an ALJ properly rejected a therapist’s opinion that contradicted her own
treatment notes); Catherine R. v. Comm’r, Soc. Sec. Admin., No. 1:20-cv-01503, 2021 WL
5235543, at *7 (D. Or. Nov. 10, 2021) (concluding that an ALJ properly rejected a doctor’s
opinion that a claimant was unable to walk a city block without rest because the doctor’s own
notes revealed that the claimant had a normal gait and a normal range of motion in her joints).
Further belying Dr. Valdivia’s opinion are the reports of Dr. Linda Bach, Plaintiff’s
primary care physician. Dr. Bach reported that Plaintiff’s memory was “normal” (Admin. R.
378, 381); and that she did not suffer from sleep disturbances, depression, or anxiety (see id.
374–381).
The ALJ also considered that Drs. Damarys Sanchez and Michelle Butler, state agency
psychological consultants who observed Plaintiff, both submitted evidence inconsistent with Dr.

Valdivia’s opinion. (See Admin. R. 29). Dr. Sanchez noted that while Plaintiff had certain
limitations, particularly concerning her ability to understand, remember, and apply information,
interact with others, concentrate, persist, or maintain pace, and manage herself; these limitations
were “moderate[.]” (Id. (alteration added). They did not impede basic job functions like
understanding; remembering; following instructions; maintaining concentration; and interacting
with the public, staff, and management. (See id.).
Dr. Butler’s observations were similar. She found that Plaintiff had some moderate
limitations but nonetheless was capable of understanding, remembering, and carrying out simple
instructions; working within a schedule; and cooperating and interacting with coworkers. (See
id.). She concluded that Plaintiff would be able to function in a stable work environment. (See

id. 30).
After considering Dr. Bach’s, Dr. Sanchez’s, and Dr. Butler’s findings, the ALJ
determined that Dr. Valdivia’s opinion was inconsistent with the record. (See id. 28–30).
Because his opinion lacked support in the record and ran counter to his own notes, as well as
three other doctors’ observations, the ALJ did not err in concluding that Dr. Valdivia’s opinion
lacked support and credibility.
The ALJ also deemed Mr. Miller’s opinion unpersuasive. (See id. 30–31). Miller opined
that Plaintiff “experienced fear, helplessness, panic attacks, and intrusive memories[;]” had
“persistent, irrational fears of interacting with colleagues and clients, which resulted in her
avoiding critical interpersonal communications and job duties[;]” and suffered from a “level of
distress [that] impeded her cognition and concentration to a degree that precluded her ability to
meet the demands of her work in a satisfactory, timely manner.” (Admin. R. 26–27 (alterations
added)). It was difficult for the ALJ to evaluate any of these assertions, however, for the record
contained none of Miller’s treatment notes.2 (See id. 31). Moreover, Miller’s proffered opinions

clashed with Dr. Valdivia’s notes; as well as the findings of Drs. Bach, Sanchez, and Butler.
(See id. 28–30, 378–381, 424–427, 436–441, 486–491). The ALJ discussed these
inconsistencies, as well as the absence of record support for Miller’s opinions. (See id. 31).
The Magistrate Judge affirmed the ALJ’s findings and rejected “Plaintiff’s contention
that the ALJ’s decision to give little weight to the opinions of Dr. Valdivia and Mr. Miller was
not supported by substantive evidence.” (Rep. 19). The Objections place far too much emphasis
on the Magistrate Judge’s use of the word “weight” here. (See Obj. 4). Under the new
regulations, the ALJ may no longer “defer or give any specific evidentiary weight, including
controlling weight, to any medical opinion(s) or prior administrative medical finding(s),” but

must instead evaluate opinions under the section 404.1520c(c) factors. 20 C.F.R. §
404.1520c(a). Plaintiff asserts that the Report’s “references to weighing the opinion evidence
clearly shows the magistrate judge made evaluations under the old rules and failed to follow the
new rules.” (Obj. 4).
This attempt at a syntactic “gotcha” conflates the Magistrate Judge’s correct evaluation of
Dr. Valdivia and Miller’s opinions under section 404.1520c(c) with the now-outdated practice of
2 Plaintiff complains that HIPAA requirements forbade Miller from releasing his treatment notes, and the
ALJ erred by not subpoenaing t hem. (See Pl.’s Mot. 26). This wound is self-inflicted, however. At a
hearing, the ALJ specifically asked Plaintiff’s counsel whether Plaintiff had any objections to the record,
to which counsel replied, “I have no objections and the record is complete.” (Admin. R. 44). That said, it
matters little whether Miller’s notes made the record. Drs. Valdivia, Bach, Sanchez, and Butler generated
“sufficient evidence for the administrative law judge to make an informed decision.” Hamby v. Soc. Sec.
Admin., Comm’r, 480 F. App’x 548, 550 (11th Cir. 2012) (citation and quotation marks omitted).
assigning medical opinions weight, as described in section 404.1520c(a). The Magistrate
Judge’s analysis is not flawed simply by virtue of having used the word “weight” as a substitute
for “persuasiveness.” Other courts have also used “weight” when evaluating the supportability
and consistency factors under the new regulations. See, e.g., Matos, 2022 WL 97144, at *5

(observing that two doctors’ medical opinions “merited considerable weight”). The Court agrees
with the Report: the ALJ properly applied the first two section 404.1520c(c) factors and did not
err when it rejected Dr. Valdivia and Miller’s opinions.
Third, Plaintiff argued that the ALJ improperly evaluated Plaintiff’s Residual Functional
Capacity (“RFC”). (See Pl.’s Mot. 30). The five-step process of 20 C.F.R. section
404.1520(a)(4) is used to determine whether a claimant is disabled. See 20 C.F.R. §
404.1520(a)(4). The five steps are:
(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.
Vangile v. Comm’r, Soc. Sec. Admin., 695 F. App’x 510, 513 (11th Cir. 2017) (citation omitted).
Plaintiff’s third argument goes to the last two steps. Whether a claimant has the RFC to
perform past work — and whether obtainable alternative jobs exist — are not questions for
doctors, but for the Commissioner. See Langley v. Astrue, 777 F. Supp. 2d 1250, 1258 (N.D.
Ala. 2011).
RFC assessment is a two-step process. The first step is identifying the claimant’s
“functional limitations or restrictions” and assessing “her work-related abilities on a function by
function basis.” Freeman v. Barnhart, 220 F. App’x 957, 959 (11th Cir. 2007) (alteration
adopted; citation and quotation marks omitted). The second is expressing the claimant’s RFC
“in terms of exertional levels of work, sedentary, light, medium, heavy, and very heavy.” Id.
(citation and quotation marks omitted).
The ALJ should state the “weight accorded to each item of evidence and the reasons for

the decision[.]” Id. at 959–60 (alteration added; citation omitted). That said, the ALJ need not
“specifically refer to every piece of evidence in his decision, so long as the decision is sufficient
to allow [a reviewing court] to conclude that the ALJ considered the claimant’s medical
condition as a whole.” Castel v. Astrue, 355 F. App’x 260, 263 (11th Cir. 2009) (alteration
added; citation and quotation marks omitted). A reviewing court need only find that the ALJ’s
decision was “supported by substantial evidence[.]” Richardson v. Perales, 402 U.S. 389, 401
(1971) (alteration added; citation and quotation marks omitted).
Here, the ALJ considered extensive medical evidence when evaluating Plaintiff’s
physical and mental limitations. As to the physical, he considered notes by Dr. Bach that stated
Plaintiff “had normal gait and station, normal motor strength and tone, normal movement of her

extremities, normal . . . deep tendon reflexes, and intact sensation[;]” nurse practitioner Jose-
Rodriguez-Leiva’s statements that Plaintiff “had normal active and passive ranges of motion of
the bilateral wrists and fingers[;]” and Dr. Jonathan Scott Cross’s report of “normal sensation
and normal (5/5) strength except for some APB weakness” in Plaintiff’s right hand. (Admin. R.
27–28 (citations omitted)). As to mental limitations, the ALJ considered Dr. Valdivia’s
treatment notes, which stated that Plaintiff possessed “intact thought processes, normal thought
content, mostly intact memory, and fair judgment and fair sleep.” (Id. 32, 424–427, 436–441,
486–491). He also considered Dr. Bach’s, Dr. Sanchez’s, and Dr. Butler’s reports, which
acknowledged some limitations but nonetheless indicated that Plaintiff could operate in a stable
work environment. (See id. 29–30, 32).
After considering the record, including medical evidence, the ALJ concluded that
Plaintiff has the RFC “to perform medium work[.]” (Id. 25 (alteration added)). This conclusion
is “supported by substantial evidence,” which suffices. Richardson, 402 U.S. at 401 (citation

and quotation marks omitted).
Plaintiff nonetheless asserted that the ALJ erred by failing to include any limitations
accounting for Plaintiff’s subjective reports of “severe and non-severe physical impairments” in
his RFC, and in not including these reports in the hypothetical questions he posed to the
Vocational Expert (“VE”) at the administrative hearing. (Pl.’s Mot. 31). Ordinarily, the VE’s
testimony will not “constitute substantial evidence” unless the ALJ poses questions that comprise
“all of the claimant’s impairments[.]” Wilson v. Barnhart, 284 F.3d 1219, 1227 (11th Cir. 2002)
(alteration added; citations omitted). But this requirement does not apply to purported
impairments that the ALJ properly casts aside as unsupported. See Crawford v. Comm’r of Soc.
Sec., 363 F.3d 1155, 1161 (11th Cir. 2004). As discussed, the extreme limitations described in

Dr. Valdivia’s and Miller’s opinions, which form the basis of this argument, find no support in
the record. The ALJ thus had no obligation to raise it.
Fourth, Plaintiff argued that the ALJ’s findings are “not consistent with the record of
evidence.” (Pl.’s Mot. 42). This argument is redundant. The ALJ’s findings are consistent with
Dr. Valdivia’s notes; as well as reports of Bach, Sanchez, Butler, Cross, and Rodriguez-Leiva —
all of which the ALJ considered. (Id. 27–30, 32, 424–427, 436–441, 486–491). That Dr.
Valdivia’s and Miller’s opinions, which lack evidentiary support and do not comport with the
record, may suggest otherwise does not undermine the ALJ’s conclusion.
Finally, Plaintiff asserted that the ALJ erred in finding that Plaintiff “did not meet the
Listings of Impairments 12.04 and 12.06.” (Pl.’s Mot. 46). Step three of the five-step process
concerns whether the Plaintiff’s impairment “meets or equals the severity of the specified
impairments in the Listing of Impairments[.]” Vangile, 695 F. App’x at 513 (alteration added;
citation omitted). If it does, “disability is automatically established.” Wilbon v. Comm’r of Soc.

Sec., 181 F. App’x 826, 827 (11th Cir. 2006) (citation omitted).
Specified impairments are defined in terms of “specific criteria” and do not apply unless
a claimant submits “medical reports documenting that her condition meets” each specified
criterion. Mijenes v. Comm’r of Soc. Sec., 687 F. App’x 842, 845 (11th Cir. 2017) (citation
omitted). “Some” or “most” will not suffice. “An impairment that manifests only some of the
criteria, no matter how severely, does not qualify.” Id. (alteration adopted; citation omitted).
Plaintiff contended that she meets the criteria for Listing 12.04, Depressive, Bipolar and
related disorders; and Listing 12.06, Anxiety and Obsessive-Compulsive disorders. (See Pl.’s
Mot. 46 n.33 (citations omitted). She does not.
Listings 12.04 and 12.06 require Plaintiff to demonstrate either an extreme limitation in

one, or a marked limitation in two, of the following areas of mental functioning: understanding,
remembering, or applying information; interacting with others, concentrating, persisting, or
maintaining pace; and adapting or managing oneself. See 20 C.F.R. pt. 404, Subpart P, app. 1,
§§ 12.04B, 12.06B. Plaintiff insisted that she has. (See Pl.’s Mot. 46–49).
This assertion is premised on Dr. Valdivia’s opinion. (See Pl.’s Mot. 46–49). Plaintiff
bears the burden of proving she meets a Listing’s criteria. See Garcia v. Comm’r of Soc. Sec.,
833 F. App’x 303, 307 (11th Cir. 2020). This burden is not met by reliance on an opinion that
lacks both supportability and consistency.
The ALJ concluded that Plaintiff had only moderate limitations. (See Admin. R. 7). In
so finding, he relied on medical opinions in the record, which constitute substantive evidence.
See Dogua v. Comm’r of Soc. Sec. Admin., No. 6:21-cv-00138, 2022 WL 368316, at *8 (W.D.
La. Jan. 25, 2022), report and recommendation adopted, No. 6:21-cv-00138, 2022 WL 374275
(W.D. La. Feb. 7, 2022). The ALJ thus did not err in finding that Plaintiff did not demonstrate

sufficient limitations to meet Listings 12.04 or 12.06.
Plaintiff objects to the Magistrate Judge’s conclusions that (1) the AC properly
considered Plaintiff’s new evidence, the addenda from Dr. Valdivia and Mr. Miller; (2) the ALJ
properly assessed Dr. Valdivia and Mr. Miller’s medical opinion evidence; (3) the ALJ’s RFC
assessment and his hypothetical questions to the vocation expert were proper; (4) the ALJ’s
findings were supported by substantial evidence; and (5) substantive evidence supported the
ALJ’s findings that Plaintiff did not meet the Impairment Listings 12.04 and 12.06. (See Obj 2).
Objections 1, 3, 4, and 5 do not detail Plaintiff’s specific objections to the Report and “merely
restate[] the arguments previously presented[,]” which “is not sufficient to alert the court to
alleged errors on the part of the magistrate judge.” VanDiver v. Martin, 304 F. Supp. 2d 934,

937 (E.D. Mich. 2004) (alterations added).
The lone exception is Objection 2, in which Plaintiff objects to the Magistrate Judge’s
use of the word “weight,” which denotes the pre-March 27, 2017 method of assigning
evidentiary weight to medical opinions. (See Obj. 3–4). As discussed, the Magistrate Judge may
have used the word “weight” but nonetheless properly evaluated the ALJ’s assessment of Dr.
Valdivia and Miller’s opinions under section 404.1520c(c)’s five-factor test.
In short, the undersigned fully agrees with the analysis and recommendations contained
in the Report. Accordingly, it is
ORDERED AND ADJUDGED that the Report and Recommendation [ECF No. 42] is
Case No. 21-20244-CIV-ALTONAGA/Torres

AFFIRMED AND ADOPTED as follows:
1. Plaintiff's Motion for Summary Judgment [ECF No. 33] is DENIED.
2. Defendant’s Motion for Summary Judgment [ECF No. 38] is GRANTED.
3. Final judgment shall issue separately.
DONE AND ORDERED in Miami, Florida, this 13th day of September, 2022.
locas. Ii. Bornape
CECILIA M. ALTONAGA
CHIEF UNITED STATES DISTRICT JUDGE
ce: Magistrate Judge Edwin G. Torres
counsel of record

13

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10121063. Public record. Not legal advice.