The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
EDWIN VELAZQUEZ MENDEZ,
Plaintiff,
v. Case No.: 6:23-cv-750-DNF
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
OPINION AND ORDER
Plaintiff Edwin Velazquez Mendez seeks judicial review of the final decision
of the Commissioner of the Social Security Administration (“SSA”), finding he was
no longer disabled since February 18, 2016. The Commissioner filed the Transcript
of the proceedings (“Tr.” followed by the appropriate page number), and the parties
filed legal memoranda setting forth their positions. As explained below, the decision
of the Commissioner is AFFIRMED under § 205(g) of the Social Security Act, 42
U.S.C. § 405(g).
I. Social Security Act Eligibility, Standard of Review, Procedural
History, and the ALJ’s Decision
A. Social Security Eligibility
The law defines disability as the inability to do any substantial gainful activity
by reason of any medically determinable physical or mental impairment which can
be expected to result in death, or which has lasted or can be expected to last for a
continuous period of not less than twelve months. 42 U.S.C. §§ 416(i), 423(d)(1)(A),
1382c(a)(3)(A); 20 C.F.R. §§ 404.1505(a), 416.905(a). The impairment must be
severe, making the claimant unable to do his previous work, or any other substantial
gainful activity which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A),
1382c(a)(3)(A); 20 C.F.R. §§ 404.1505-404.1511, 416.905-416.911.
B. Standard of Review
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 and is such relevant evidence as a reasonable person would accept as
adequate to support a conclusion. Even if the evidence preponderated against the
Commissioner’s findings, we must affirm if the decision reached is supported by
substantial evidence.” Crawford v. Comm’r, 363 F.3d 1155, 1158 (11th Cir. 2004).
In conducting this review, this Court may not reweigh the evidence or substitute its
judgment for that of the ALJ, but must consider the evidence as a whole, taking into
account evidence favorable as well as unfavorable to the decision. Winschel v.
Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (citation omitted); Foote
v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995); Martin v. Sullivan, 894 F.2d 1520,
1529 (11th Cir. 1990). Unlike findings of fact, the Commissioner’s conclusions of
law are not presumed valid and are reviewed under a de novo standard. Keeton v.
Dep’t of Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994); Maldonado
v. Comm’r of Soc. Sec., No. 20-14331, 2021 WL 2838362, at *2 (11th Cir. July 8,
2021); Martin, 894 F.2d at 1529. “The [Commissioner’s] failure to apply the correct
law or to provide the reviewing court with sufficient reasoning for determining that
the proper legal analysis has been conducted mandates reversal.” Keeton, 21 F.3d at
1066.
Generally, an ALJ must follow five steps in evaluating a claim of disability.
See 20 C.F.R. §§ 404.1520, 416.920. Yet when the issue is cessation of disability
benefits, then the ALJ must follow an eight-step evaluation for a Title II claim and
a seven-step process for a Title XVI claim to determine whether a plaintiff’s
disability benefits should continue. See 42 U.S.C. § 423(f); 20 C.F.R.
§§ 404.1594(f), 416.994(b). Here, the ALJ followed an eight-step evaluation and the
Court adopts the explanation of each step as set forth in the decision. (Tr. 2406-7).
C. Procedural History
This action has a long procedural history. On January 23, 2014, Plaintiff was
found disabled beginning on May 8, 2012. (Tr. 2503-14). On February 16, 2016,
SSA determined Plaintiff was no longer disabled as of February 18, 2016. (Tr. 92).
On October 28, 2016, a State Agency Disability Hearing Officer found Plaintiff not
disabled. (Tr. 105-115). Plaintiff requested a hearing before an ALJ. (Tr. 119). On
October 17, 2018, ALJ Janet Mahon dismissed Plaintiff’s request for a hearing
because Plaintiff failed to appear for the hearing. (Tr. 7-14). Plaintiff appealed the
Notice of Dismissal and the Appeals Council dismissed the request for review. (Tr.
1-5). Plaintiff appealed this decision to the District Court, and on March 19, 2020,
based on an unopposed motion for entry of judgment with remand, U.S. Magistrate
Judge Leslie Hoffman Price reversed and remanded the action to the Commissioner
to offer Plaintiff the opportunity for a hearing. (Tr. 1019-20). The Appeals Council
remanded the case to an ALJ and also consolidated later filed cases:
The claimant filed a subsequent claim for Title II and Title XVI
disability benefits on August 28, 2019. The Appeals Council’s
action with respect to the current electronic claim renders the
subsequent claim duplicate. Therefore, the Administrative Law
Judge will consolidate the claims files, associate the evidence,
and issue a new decision on the consolidated claims (20
[C.F.R. §§] 404.952 and 416.1452 and HALLEX I-1-10-10).
On remand, the Administrative Law Judge should apply the
prior rules to the consolidated case pursuant to HALLEX I-5-
3-30.
(Tr. 1072-74).1
On May 3, 2021, Plaintiff appeared for a hearing before ALJ Pamela Houston.
(Tr. 932-58). On July 30, 2021, ALJ Houston entered a decision, finding Plaintiff’s
disability ended on February 18, 2016. (Tr. 908-20). Plaintiff appealed the decision
to the District Court and on March 23, 2022, U.S. Magistrate Judge Leslie Hoffman
1 As the Commissioner points out, the subsequent applications dated September 19, 2019, were
protectively filed on August 28, 2019 and were denied initially and on reconsideration. (Doc. 22,
p. 2, n.1). A request for hearing was pending at the time of the Appeals Council’s remand order.
(Doc. 22, p. 2, n.1).
Price again reversed and remanded the action to the Commissioner based on an
unopposed motion for entry of judgment with remand “to consider the medical
evidence upon which the comparison point decision was based and compare it with
the subsequent medical evidence in accordance with 20 C.F.R. § 404.1594 and issue
a new decision. (Tr. 2549-50). The Appeals Council remanded the case to an ALJ to
“[c]onsider the medical evidence upon which the comparison point decision was
based and compare it with the subsequent medical evidence in accordance with 20
[C.F.R. §] 404.1594, and issue a new decision.” (Tr. 2558-59). The Appeals Council
once again directed the ALJ to consolidate a Title XVI claim filed on September 21,
2021 with the instant claim, and issue a new decision on the consolidated claims.
(Tr. 2559).2
On December 14, 2022, Plaintiff attended a hearing before Administrative
Law Judge Pamela Houston (“ALJ”). (Tr. 2476-2502). On February 23, 2023, the
ALJ entered a decision finding Plaintiff’s disability ended on February 18, 2016, and
he had not become disabled again since that date. (Tr. 2405-24). Plaintiff waited
sixty-one days for the ALJ’s decision to become a final decision of the
Commissioner and then initiated this action by Complaint (Doc. 1) filed on April 25,
2 Plaintiff noted that the September 21, 2021 application for SSI benefits could not be located in
the administrative record, but a Disability Determination and Transmittal Form confirmed
Plaintiff’s filing date of September 21, 2021, citing Tr. 2562. (Doc. 22, p. 3, n.2; Tr. 2562). Plaintiff
also noted that this claim was denied at the initial level on September 22, 2022. (Doc. 22, p. 3, n.2;
Tr. 2703-12).
2023, and the case is ripe for review. The parties consented to proceed before a
United States Magistrate Judge for all proceedings. (Doc. 16).
D. Summary of ALJ’s Decision
In this case, the ALJ found the most recent favorable medical decision finding
Plaintiff was disabled was the decision dated January 23, 2014, making this the
“comparison point decision” or CPD. (Tr. 2408). At the time of the CPD, the ALJ
found Plaintiff to have the following medically determinable impairments:
hypertension, cardiac arrythmia, hypertrophic cardiomegaly,
and bipolar disorder. These impairments were found to result
in the residual functional capacity (RFC) for sedentary work,
except he was unable to lift and/or carry 10 pounds
occasionally or 5 pounds frequently on a sustained basis. He
could not stand and walk for even 2 hours or sit even 6 hours
per 8-hour workday. He would be off task 20% of the day and
would miss over 2 days of work per month due to recurrent
symptoms. (Exhibit B23A).
(Tr. 2408).
At step one, the ALJ found that Plaintiff had not engaged in substantial gainful
activity through the date of the decision. (Tr. 2408). At step two, the ALJ found that
since February 18, 2016, Plaintiff has had the following medically determinable
impairments: “cardiac disorders (including atrial fibrillation, arrhythmia,
cardiomegaly, and mild coronary artery disease); obesity; spine disorder; urinary
incontinence; erectile dysfunction; sleep apnea; asthma; hypertension; vestibular
disorder; diabetes mellitus; medication side effects; status-post gallbladder removal;
depression; and anxiety. These are claimant’s current impairments.” (Tr. 2408).
Since February 18, 2016, the ALJ found at step three that Plaintiff had not had an
impairment or combination of impairments that met or medically equaled the
severity of one of the listed impairments in 20 C.F.R. pt. 404, subpt. P, app. 1 (20
C.F.R. §§ 404.1525, 404.1526). (Tr. 2408). The ALJ further found that medical
improvement occurred on February 18, 2016. (Tr. 2410).
At step four, the ALJ found that the medical improvement was related to the
ability to work because it resulted in an increase in Plaintiff’s RFC. (Tr. 2411). At
step six, the ALJ determined that since February 18, 2016, Plaintiff continued to
have a severe impairment or combination of severe impairments. (Tr. 2411).
At step seven, the ALJ found that since February 18, 2016, Plaintiff has had
the following residual functional capacity (“RFC”):
Based on the impairments present since February 18, 2016,
claimant has had the RFC for light work (20 [C.F.R.
§] 404.1567(b))[,] except for occasional stooping, kneeling,
crouching, crawling, and climbing ramps and stairs, but never
ladders, ropes, or scaffolds; avoid: work at heights, work with
dangerous machinery and dangerous tools, concentrated
exposure to temperature extremes, wetness, humidity,
pulmonary irritants (dust, fumes, and chemicals), bilateral
overhead reaching, and foot controls; the bilateral upper
extremities can frequently push and pull at the light exertional
level; work tasks should be simple and have no more than
occasional interaction with coworkers, supervisors, and the
general public.
(Tr. 2413).
At step eight, the ALJ determined that since February 18, 2016, Plaintiff has
been unable to perform his past relevant work as a stock clerk. (Tr. 2422). The ALJ
found that on February 18, 2016, Plaintiff was a younger individual. (Tr. 2422). The
ALJ found that after considering Plaintiff’s age (31 years old on February 18, 2016),
education (marginal), work experience, and RFC, and based on the impairments
present since February 18, 2016, Plaintiff had been able to perform a significant
number of jobs in the national economy. (Tr. 2422). Specifically, the vocational
expert testified that a person with Plaintiff’s limitations could perform such
occupations as:
(1) Marker, DOT 209.587-034,3 light, unskilled, SVP 2
(2) Routing clerk, DOT 222.687-022, light, unskilled, SVP 2
(3) Photocopy machine operator, DOT 207.685-014, light unskilled, SVP 2
(4) Addresser, DOT 209.587-010, sedentary, unskilled, SVP 2
(5) Eyeglass frames polisher, DOT 713.684-038, sedentary, unskilled,
SVP 2
(6) Semiconductors wafer breaker, DOT 726.687-046, sedentary, unskilled,
SVP 2.
(Tr. 2423). The ALJ concluded that Plaintiff’s disability ended on February 18,
2016, and he had not become disabled again since that date. (Tr. 2423).
II. Analysis
On appeal, Plaintiff raises two issues:
3 DOT refers to the Dictionary of Occupational Titles.
(1) Whether the ALJ’s finding that medical improvement occurred as of
February 18, 2016, is based on the correct legal standards or supported
by substantial evidence; and
(2) Whether the ALJ failed to apply the correct legal standards to Plaintiff’s
need for a cane.
(Doc. 22, p. 6, 10).
A. Medical Improvement
To determine whether medical improvement occurred such that benefits
should be terminated, there must be “substantial evidence of improvement to the
point of no disability.” McAulay v. Heckler, 749 F.2d 1500, 1500 (11th Cir. 1985).
To make this determination, an ALJ must compare the original medical evidence
and the new medical evidence and make findings of improvement. Id. Thus, an ALJ
must evaluate the medical evidence on which a plaintiff was originally found to be
disabled and then compare this evidence to the new evidence before a finding of
improvement can be rendered. Vaughn v. Heckler, 727 F.2d 1040, 1043 (11th Cir.
1984)
Plaintiff argues that in making this comparison of medical evidence, the ALJ
improperly relied extensively on the SSA Disability Hearing Officer’s Decision for
the evidence that originally found Plaintiff disabled. (Doc. 22, p. 8). In the decision,
the ALJ begins the comparison of medical evidence by citing the hearing officer’s
decision, “[a]t the time of the CPD, claimant was diagnosed with atrial fibrillation
and underwent ablation and loop implantation. (Exhibit B5B/3).” (Compare Tr.
2410, with Tr. 107).
Courts have found several reasons why an ALJ’s simple reliance on a hearing
officer’s decision is not sufficient. Olivo v. Colvin, No. 6:16-cv-259-ORL-40JRK,
2017 WL 708743, at *5 (M.D. Fla. Jan. 30, 2017), report and recommendation
adopted sub nom. Olivo v. Comm’r of Soc. Sec., No. 6:16-cv-259-ORL-40JRK, 2017
WL 700367 (M.D. Fla. Feb. 22, 2017); see also Brown v. Berryhill, No. 3:16-cv-
1344-J-34JRK, 2017 WL 6541455, at *5 (M.D. Fla. Nov. 28, 2017), report and
recommendation adopted, No. 3:16-cv-1344-J-34JRK, 2017 WL 6536741 (M.D.
Fla. Dec. 21, 2017). Some reasons are: (1) a court must review an ALJ’s decision
not a hearing officer’s decision; and (2) an ALJ may not cite a hearing officer’s
decision to establish the Administration’s ultimate findings in the CPD. Id. And in
this case, the hearing officer’s decision contained no citations to record evidence.
(Tr. 107).
While the ALJ clearly relied to some extent on the hearing officer’s decision
as shown by citing it, the ALJ did not simply or exclusively rely on this decision.
The ALJ also summarized Plaintiff’s impairments and cited to the medical records
in support, not the hearing officer’s decision. (Tr. 2410). One example is that the
ALJ reported, “[h]ypertension was uncontrolled with continuous dizziness and
fatigue on exertion. (Exhibit 32F).” (Tr. 2410). This statement cited an October 15,
2013 letter from Abbas Ali, M.D., Plaintiff’s treating cardiologist at the time. (Tr.
2410, 3553). Another example is the ALJ noted that despite treatment, Plaintiff had
several emergency room visits for cardiac related issues, and then cited the medical
records from these visits. (Tr. 2410, 3147-3153, 3198-3203, 3248-3334). Thus, the
ALJ sufficiently discussed and cited these medical sources and as well as other
medical sources, not just the hearing officer’s decision, in the discussion about the
conditions on which Plaintiff was originally found to be disabled.
Plaintiff next argues that the ALJ failed to comply with the Court’s March 23,
2022 Order, which remanded the case for further proceedings. (Doc. 22, p. 9). In the
Order, the Court instructed the ALJ “to consider the medical evidence upon which
the comparison point was based and compare it with the subsequent medical
evidence in accordance with 20 C.F.R. § 404.1594, and issue a new decision.” (Tr.
2550). Plaintiff argues that the language on medical improvement of Plaintiff’s
condition in the most recent decision mirrors the language in the prior July 2021
remanded decision, and therefore the ALJ did not comply with the remand order.
(Doc. 22, p. 9). Plaintiff also argues that the ALJ once again failed to actually
compare Plaintiff’s original medical evidence with his current medical evidence.
(Doc. 22, p. 9). The Court disagrees.
In the prior July 2021 decision, the ALJ summarized the basis on which
Plaintiff was originally found to be disabled. (Tr. 2525). The ALJ did not cite any
medical records to support these findings. (Tr. 2525). While the recent February
2023 decision does include many of these same findings, the ALJ cites to specific
medical evidence in the record to support her findings. (Tr. 2410). Thus, in this
respect, the ALJ complied with the March 23, 2022 Order that remanded the case.
The ALJ also compared these findings with subsequent medical evidence to
show that “by February 18, 2016, there had been a decrease in medical severity of
the impairments present at the time of the CPD.” (Tr. 2410). For example, the ALJ
found at the time of the CPD, Plaintiff hypertension was uncontrolled. (Tr. 2410).
The ALJ compared that impairment with more recent medical evidence that showed
Plaintiff’s “treating providers repeatedly found blood pressure was controlled with
medication.” (Tr. 2410). The ALJ also noted that when Plaintiff was found disabled,
he had several emergency room visits, but as of February 18, 2016, there was no
evidence of repeated hospitalizations or emergency room visits for hypertension and
cardiac disorders. (Tr. 2410). In the decision, the ALJ continued these types of
comparisons for Plaintiff’s impairments. (Tr. 2410). Based on these comparisons,
substantial evidence supports the ALJ’s finding that medical improvement occurred
on February 18, 2016.
B. Use of a Cane
Plaintiff argues that despite the ALJ’s repeated references in the decision to
Plaintiff’s need for a cane for ambulation, the ALJ failed to account for his need for
a cane in the RFC. (Doc. 22, p. 11). Plaintiff adds that the vocational expert testified
that a hypothetical individual who uses a cane for ambulation would be unable to
perform the three light-level jobs, but would still be able to perform the three
sedentary-level jobs that he listed. (Doc. 22, p. 12). Even though Plaintiff could
perform these sedentary level jobs, Plaintiff then argues that these jobs do not exist
in significant numbers in the national economy. (Doc. 22, p. 12-13).
An individual’s RFC is his ability to do physical and mental work activities
on a sustained basis despite limitations secondary to his established impairments.
Delker v. Comm’r of Soc. Sec., 658 F. Supp. 2d 1340, 1364 (M.D. Fla. 2009). In
determining a claimant’s RFC, the ALJ must consider all relevant evidence
including non-severe impairments. Barrio v. Comm’r of Soc. Sec., 394 F. App’x 635,
637 (11th Cir. 2010). Furthermore, the ALJ must “‘scrupulously and conscientiously
probe into, inquire of, and explore for all relevant facts.’” Henry v. Comm’r of Soc.
Sec., 802 F.3d 1264, 1267 (11th Cir. 2015) (quoting Cowart v. Schweiker, 662 F.2d
731, 735 (11th Cir.1981)). In other words, ALJs “are by law investigators of the facts
and are tasked not only with the obligation to consider the reasons offered by both
sides, but also with actively developing the record in the case.” Id. The task of
determining a claimant’s RFC and ability to work rests with the administrative law
judge and not with a doctor. Moore v. Comm’r of Soc. Sec., 649 F. App’x 941, 945
(11th Cir. 2016); see also Castle v. Colvin, 557 F. App’x 849, 853-54 (11th Cir.
2014), Green v. Soc. Sec. Admin., 223 F. App’x 915, 924 (11th Cir. 2007).
As the Commissioner asserts, Plaintiff bases his argument on District Court
cases that interpreted SSR 96-9p to determine whether an ALJ properly considered
the use of a handheld assistive device. (Doc. 27, p. 12 (citing Doc. 22, p. 11-12)).
SSR 96-9p applies when a plaintiff is limited to less than a full range of sedentary
work. See SSR 96-9p, 1996 WL 374185. By contrast, here Plaintiff is limited to light
(not sedentary) work with some exceptions, (Tr. 2413). Thus, SSR 96-9p is
inapplicable here. See Ecker v. Comm’r of Soc. Sec., No. 6:21-cv-352-EJK, 2022
WL 10622380, at *3 (M.D. Fla. Apr. 21, 2022) (collecting cases).
In this case, the ALJ acknowledged Plaintiff’s use of a cane throughout the
decision, citing medical records that include findings of an antalgic gait. See, e.g.
(Tr. 2414 (“A cane is used to ambulate.”); Tr. 2415 (“Exam showed claimant walked
with a cane . . .”), (“Exams show claimant ambulated with a cane at times . . “); Tr.
2416 (“Gait was antalgic, and he ambulated with a cane.”), 2417 (same), 2420
(same).) At the same time, the ALJ also repeatedly noted multiple medical records
that showed Plaintiff ambulated normally or had a normal gait, with no use of a cane.
(Tr. 2413, 2415, 2416). The ALJ also referred to the opinion of Allison Germaine,
APRN, who found that Plaintiff did not require a cane or an assistive device to
ambulate. (Tr. 2408, 2417, 2420-21). Thus, the ALJ considered both the evidence in
support of the use of a cane and other records that found normal gait and ambulation
without the use of a cane. In essence, Plaintiff invites the Court to reweigh the
evidence, which it cannot do. A court may not decide the facts anew, reweigh the
evidence, or substitute its judgment for that of the Commissioner. Mitchell v.
Comm’r, Soc. Sec. Admin., 771 F.3d 780, 782 (11th Cir. 2014). Even if the evidence
preponderates against the Commissioner’s decision, the Court must affirm if
substantial evidence supports the Commissioner’s decision. Buckwalter v. Acting
Comm’r of Soc. Sec., 5 F.4th 1315, 1320 (11th Cir. 2021). The ALJ thoroughly
considered the medical and other evidence related to the use of a cane and properly
determined the RFC assessment.
In addition, even if SSR 96-9p applied (which it does not), the ALJ did not
err. For a hand-held assistive device to be found medically necessary, medical
documentation must “establish[] the need for a hand-held assistive device to aid in
walking or standing, and describ[e] the circumstances for which it is needed (i.e., all
the time, periodically, or only in certain situations; distance and terrain; and any
other relevant information).” SSR 96-9p, 1996 WL 374185, *7 (1996). When the
record establishes a plaintiff needs a hand-held assistive device, the ALJ “must
always consider the particular facts of a case” and determine the circumstances under
which it is required. Id. Plaintiff has not shown he had medical documentation that
established the need for a cane and described the circumstances for its use. Thus,
Plaintiff has not satisfied the requirements of SSR 96-9p, even if it did apply.
Substantial evidence supports the ALJ’s RFC assessment.
II. Conclusion
For the reasons discussed above, the Court finds that the decision of the
Commissioner is supported by substantial evidence and the Commissioner applied
the correct legal standard. The decision of the Commissioner is AFFIRMED. The
Clerk of Court is directed to enter judgment consistent with this opinion, terminate
all deadlines, and close the case.
DONE and ORDERED in Fort Myers, Florida on June 21, 2024.
UNITED STATES MAGISTRATE JUDGE
Copies furnished to:
Counsel of Record
Unrepresented Parties