The opinion
United States District Court
Middle District of Florida
Tampa Division
CLAUDIA J. FRIER,
Plaintiff,
v. NO. 8:24-cv-732-WFJ-PDB
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
Report and Recommendation
Claudia Frier challenges the Commissioner of Social Security’s decision
to terminate her supplemental security income. Doc. 1. An Administrative Law
Judge (ALJ) entered the decision on January 23, 2024. Tr. 1268–96. The Acting
Commissioner has filed a 2,030-page administrative record, Doc. 14, and each
side has filed a brief, Docs. 15, 19. The Court has jurisdiction under 42 U.S.C.
§ 405(g) and § 1383(c)(3).
Overview
The ALJ found medical improvement had occurred as of November 12,
2014, making Frier no longer eligible for benefits. Tr. 1272–73, 1276, 1283.
Frier argues that the finding is not supported by substantial evidence and the
ALJ failed to apply the correct legal standards by failing to compare medical
evidence and relying extensively on a hearing officer’s decision. See Doc. 15.
Standard of Review
A court’s review of a decision by the Commissioner is limited to whether
substantial evidence supports the factual findings and whether the correct
legal standards were applied. 42 U.S.C. § 405(g); Wilson v. Barnhart, 284 F.3d
1219, 1221 (11th Cir. 2002). The court may not decide facts anew, reweigh
evidence, make credibility determinations, or substitute its judgment for the
Commissioner’s judgment. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir.
2005). Substantial evidence is “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Biestek v. Berryhill, 587
U.S. 97, 103 (2019) (quoted authority omitted).
Medical Improvement
The Social Security Administration (SSA) periodically reviews
recipients’ continued entitlement to supplemental security income. 42 U.S.C.
§ 421(i)(1); 20 C.F.R. § 416.994(a). The SSA decides whether a recipient
remains disabled “on a neutral basis without any initial inference as to the
presence or absence of disability being drawn from the fact that [the recipient
had] previously been determined to be disabled.” 20 C.F.R. § 416.994(b)(1)(vi).
In reviewing whether a recipient remains disabled, the SSA uses a
multi-step evaluation process. 20 C.F.R. § 416.994(b)(5)(i)–(viii). The issue
Frier raises concerns the ALJ’s finding at the second step of the process;
specifically, that medical improvement had occurred as of November 12, 2014.
See Doc. 15.
“Medical improvement” is “any decrease in the medical severity” of an
impairment that was present at the time of the most recent favorable medical
decision finding the recipient disabled. 20 C.F.R. § 416.994(b)(1)(i). The most
recent favorable decision finding the recipient disabled is known as the
“comparison point decision” or “CPD.”
“A determination that there has been a decrease in medical severity
must be based on changes (improvement) in the symptoms, signs, or laboratory
findings associated with [the] impairment[.]” Id. To determine whether
medical improvement has occurred, the SSA compares the current medical
severity of the impairment present at the time of the CPD to the medical
severity of the impairment at the time of the CPD. 20 C.F.R.
§ 416.994(b)(1)(vii). To find improvement, an ALJ must make a comparison.
Freeman v. Heckler, 739 F.2d 565, 566 (11th Cir. 1984); Vaughn v. Heckler, 727
F.2d 1040, 1043 (11th Cir. 1984).
CPD
Frier was born in 1980. Tr. 1282. She has a high-school education and
no past relevant work.1 Tr. 1282.
The ALJ found, and Frier does not dispute, that the CPD is an ALJ’s
decision dated March 31, 2009.2 Tr. 1273; see Doc. 15. In the CPD, the ALJ
found Frier disabled as of September 27, 2006. Tr. 120. The ALJ found that
Frier had severe impairments of degenerative disc disease of the lumbosacral
1“Past relevant work is work that [a claimant has] done within the past five years
that was substantial gainful activity and that lasted long enough for [the claimant] to
learn to do it[.]” 20 C.F.R. § 416.960(b)(1).
2In the decision under review, the ALJ described the CPD as a decision “dated
March 3, 2009.” Tr. 1273. No decision dated March 3, 2009, appears in the record, and
both parties refer to the March 31, 2009, decision as the CPD. See Doc. 15 at 1; Doc. 19
at 1. The ALJ’s description presumably contains a typographical error.
spine, obesity, depression, and anxiety. Tr. 115. The ALJ further found that
Frier had this residual functional capacity (RFC)3:
[Frier] has the [RFC] to perform less than the full range of sedentary
work as defined in 20 CFR 416.967(a) except sit, stand and/or walk for
4 hours in an eight-hour workday. She can lift and/or carry 10 pounds
occasionally and less than 10 pounds frequently. She can occasionally
stoop (bend), crouch/squat, climb ladders and stairs and [frequently]
twist. She can occasionally look down, turn head right or left, look up
and hold head in static position. [Frier]’s depression and anxiety
resulted in mild restriction of activities of daily living, moderate
difficulties in maintaining social functioning, and moderate difficulties
in maintaining concentration, persistence, or pace without episodes of
decompensation, each of extended duration. In addition, [she] is capable
of performing simple routine repetitive tasks.
Tr. 115.
Considering the RFC and Frier’s age, education, and work experience,
the ALJ found that “there are no jobs that exist in significant numbers in the
national economy that [Frier] can perform[.]” Tr. 119. The ALJ explained:
In determining whether a successful adjustment to work can be made,
the undersigned must consider [Frier]’s [RFC], age, education, and work
experience in conjunction with the Medical-Vocational Guidelines, 20
CFR Part 404, Subpart P, Appendix 2. If [she] can perform all or
substantially all of the exertional demands at a given level of exertion,
the medical-vocational rules direct a conclusion of either “disabled” or
“not disabled” depending upon [her] specific vocational profile (SSR 83-
11). When [she] cannot perform substantially all of the exertional
demands of work at a given level of exertion and/or has nonexertional
limitations, the medical-vocational rules are used as a framework for
decisionmaking unless there is a rule that directs a [conclusion] of
“disabled” without considering the additional exertional and/or
nonexertional limitations (SSRs 83-12 and 83-14). If [she] has solely
3A claimant’s RFC is the most she can still do despite her limitations. 20 C.F.R.
§ 416.945(a)(1).
non-exertional limitations, section 204.00 in the Medical-Vocational
Guidelines provides a framework for decisionmaking (SSR 85-15).
If [Frier] had the [RFC] to perform the full range of sedentary work,
considering [her] age, education, and work experience, a finding of “not
disabled” would be directed by Medical-Vocational Rule 201.27.
However, the additional limitations so narrow the range of work [she]
might otherwise perform that a finding of “disabled” is appropriate
under the framework of this rule. This conclusion is supported by Social
Security Ruling(s) 96-9p.[4]
Tr. 119–20.
Administrative Process
Through an initial determination made on November 12, 2014, the SSA
found Frier no longer disabled. Tr. 105–06; see also Tr. 144–48. A state agency
disability hearing officer upheld the determination. Tr. 169–76. The officer
explained:
At CPD, [Frier] was allowed disability benefits due to degenerative disc
disease of the lumbosacral spine, obesity, depression and anxiety. She
weighed 241 pounds, she had mild thoracic spine tenderness and
moderate lumbosacral spine tenderness. [She] reported that her pain
was 7/10. [She] had a depressed and anxious mood and her affect was
labile. She had short-term memory deficits, she was unable to tolerate
frustration and she had persistent mood swings.
Tr. 171.
The officer summarized Frier’s hearing testimony and evidence from
2014 and 2015, Tr. 171, and concluded:
A review of the total evidence indicates that medical improvement has
been established since CPD. At CPD, [Frier] reported that her pain was
4Social Security Ruling 96-9p explains the SSA’s policies on the impact of an RFC
of less than a full range of sedentary work on a claimant’s ability to do other work. See
SSR 96-9p (“Purpose”) (eff. July 2, 1996).
7/10. She had mild thoracic spine tenderness and moderate lumbosacral
spine tenderness. She had a depressed and anxious mood and her affect
was labile. She had short-term memory deficits, she was unable to
tolerate frustration and she had persistent mood swings. Current
physical records document that [her] level is 3/10 and the current pain
relief makes a real difference for her. She has a full range of motion in
her neck, a normal gait and a full range of motion in all major muscle
groups. Her cranial nerves are intact and her cerebral function and
coordination are normal. Due to chronic low back pain, fibromyalgia and
type 2 diabetes, [she] is limited to medium work activities. Current
psychological records document that [her] mental status shows no
clinically significant findings. She is alert and fully oriented with an
appropriate affect and demeanor. The psychological records … do not
support the significant functional limitations reported on the mental
impairment questionnaire completed by [her] treating source on
12/11/2014. Due to cyclothymic depression and generalized anxiety
disorder, [she] has mild limitations in her ability to complete activities
of daily living. She had mild limitations in maintaining social
functioning and mild limitations in maintaining concentration,
persistence and pace. However, she is capable of performing semi-skilled
and unskilled work. [Frier] is a 35-year-old English-speaking female
with a 12th grade education and no past relevant work. She is capable of
performing other medium semi-skilled and unskilled work. Therefore,
she is not disabled according to Social Security Guidelines.
Tr. 171–72.
Frier requested a hearing before an ALJ, and an ALJ conducted a
hearing at which Frier and a vocational expert testified. Tr. 36–68. The ALJ
thereafter issued a decision finding medical improvement had occurred as of
November 12, 2014. Tr. 121–40. The Appeals Council granted Frier’s request
for review and remanded the case to an ALJ for further administrative
proceedings to “ensure the record is complete and the claimant has had the
opportunity to review all of the material in the claim file[.]” Tr. 141–43.
An ALJ conducted another hearing at which Frier and a vocational
expert testified. Tr. 69–103. The ALJ issued a second decision finding medical
improvement had occurred as of November 12, 2014. Tr. 12–35. This time, the
Appeals Council denied Frier’s request for review. Tr. 1–6. Frier appealed the
decision to this Court, and the Commissioner moved to reverse the decision
below and remand the case for further administrative proceedings “to allow
the ALJ to reevaluate whether [Frier] continues to be disabled.” Tr. 1389
(internal quotation marks and alteration omitted). The Court granted the
motion, reversed the Commissioner’s decision under sentence four of § 405(g),
and remanded the case to the Commissioner. Tr. 1389.
An ALJ conducted another hearing, at which Frier and a vocational
expert again testified. Tr. 1297–1358. This resulted in the decision now under
review, in which the ALJ found medical improvement had occurred as of
November 12, 2014. Tr. 1268–96.
After finding that the CPD is the decision dated March 31, 2009, the ALJ
found that, at that time, Frier had suffered from impairments of degenerative
disc disease of the lumbosacral spine, obesity, depression, and anxiety, and
that those impairments had resulted in the RFC described supra. Tr. 1273.
The ALJ found that since November 12, 2014, Frier has suffered from
impairments of “degenerative disc disease; obesity; bipolar disorder; anxiety
disorder; [and] diabetes mellitus.” Tr. 1273. The ALJ found that, since
November 12, 2014, those current impairments “individually and in
combination” do not meet or equal any listing.5 Tr. 1274.
5The Listing of Impairments “describes for each of the major body systems
impairments [the SSA] consider[s] to be severe enough to prevent an individual from
doing any gainful activity, regardless of his or her age, education, or work experience.”
20 C.F.R. § 416.925(a). An ALJ must consider whether the claimant meets or equals a
listing in the Listing of Impairments. Id. § 416.920(a)(4)(iii).
In finding that medical improvement had occurred on November 12,
2014, the ALJ explained:
The medical evidence supports a finding that, by November 12, 2014,
there had been a decrease in medical severity of the impairments
present at the time of the CPD. Specifically, at the CPD, [Frier] was
allowed benefits due to degenerative disc disease of the lumbosacral
spine, obesity, depression, and anxiety. She weighed 241 pounds, and
demonstrated mild to moderate tenderness of the thoracic and
lumbosacral spine. [She] reported that her pain was 7/10. She also
showed a depressed and anxious mood, and a labile affect. She had
short-term memory deficits, low tolerance for frustration, and persistent
mood swings (1F, 2F, 3F, 4F, 5F, 6F, 7F, 8F, 9F, 10F, 11F, 12F, 13F,
14F, 15F, 16F, 17F, 18F, 19F, 45F, 46F, 47F). However, as of the
cessation date, [Frier]’s CPD impairments have decreased because her
gait and coordination have been noted to be normal, and she has
reported that pain has been controlled with medications. In addition,
her mental status examinations have been relatively benign (1F, 20F,
21F, 27F, 30F, 33F, 36F, 41F, 43F, 48F, 49F, 51F, 53F, 54F, 55F,
Hearing testimony). Therefore, medical improvement has occurred.
Tr. 1276.
The record the ALJ considered includes medical evidence from before
and after the CPD, i.e., before and after March 31, 2009. See Tr. 1276. The
record includes:
• Office-treatment records from Evaristo P. Badiola, M.D., from
May 10, 1999, to July 12, 2006, Tr. 530–39;
• Surgical records from Winter Haven Hospital from May 17,
2001, Tr. 508–13;
• Emergency department records from Winter Haven Hospital
from June 1, 2004, February 3, 2017, and February 4, 2017, Tr.
514, 946–84;
• Progress notes from Newberry Clinic from September 5, 2003,
to July 20, 2006, Tr. 516–29;
• Office-treatment records from Gessler Clinic, P.A., from August
12, 2005, to September 6, 2006, Tr. 540–57;
• Progress notes, hospital records, and office-treatment records
from Winter Haven Hospital Behavioral Health Division from
June 16, 2006, to July 2023, Tr. 641–51, 768–86, 824–38, 1186–
1267, 1704–25, 1997–2030;
• A consultative examination report from N. Kirmani, M.D., from
December 23, 2006, Tr. 1726–29;
• Office-treatment records from First Help Clinic from January
10, 2007, to April 28, 2007, Tr. 566–84;
• Progress notes from St. Patrick Medical PA from February 16,
2007, Tr. 559–65;
• Progress notes from Frostproof Medical and Surgical Center
from April 22, 2007, to July 2, 2007, Tr. 585–96;
• Progress notes from Urgent Care Med Center from November
13, 2007, to December 20, 2007, Tr. 597–607;
• Progress notes from Lakeland Dermatology from January 24,
2008, and February 14, 2008, Tr. 608–13;
• An internal medicine consultative examination report from
Morris Kutner, M.D., from June 2, 2008, Tr. 614–17, 1701–03;
• A psychology consultative examination report from Gregory
Marone, Ed.D., from June 4, 2008, Tr. 618–22;
• A psychiatric review technique from John Wright, Ph.D., from
June 19, 2008, Tr. 626–39;
• A DDS case analysis from June 19, 2008, Tr. 640;
• A physical RFC assessment from James Patty, M.D., from
November 6, 2008, Tr. 652–59;
• A psychiatric review technique from Jill Rowan, Ph.D., from
November 7, 2008, Tr. 660–73;
• Office-treatment records from Physicians Services from
January 12, 2009, to June 6, 2014, Tr. 680–767;
• A medical consultant’s review of the physical RFC assessment
from Edgar Martorell, M.D., from February 22, 2009, Tr. 675–
79;
• Office-treatment records from Mid Florida Medical Services
from June 2, 2015, to July 11, 2017, Tr. 1002–34;
• Radiology reports from A.T. Radiology from January 22, 2016,
and February 19, 2016, Tr. 505–07;
• Office-treatment records from Good Health Physicians LLC,
from January 13, 2017, to September 21, 2018, Tr. 1096–1148;
• Office-treatment records from Neurology and Neurosurgery
Associates, P.A., from March 21, 2017, to October 24, 2022, Tr.
861–73, 1763–81, 1893–1951;
• Office-treatment records and progress notes from Polk Health
Department from May 7, 2021, to February 16, 2023, Tr. 1730–
62, 1952–96; and
• Office treatment records from Auburndale Clinic from
December 10, 2021, to March 4, 2022, Tr. 1822–53.
See Tr. 1276.
The ALJ found Frier has severe impairments of degenerative disc
disease, obesity, bipolar disorder, anxiety disorder, and diabetes mellitus. Tr.
1277. The ALJ found Frier has non-severe impairments of fibromyalgia,
gastroesophageal reflux disease (GERD), migraines, hypertension, and
respiratory impairment. Tr. 1277. The ALJ found Frier has the following RFC:
Since November 12, 2014, based on the current impairments, [Frier] has
had the [RFC] to perform light work as defined in 20 CFR 416.967(b)
except that she can lift and/or carry 20 pounds occasionally and 10
pounds frequently. She can stand and/or walk 6 hours in an 8-hour
workday. She can sit 6 hours in an 8-hour workday. Pushing and/or
pulling are limited to the weights given above. She can occasionally
climb ramps and stairs, stoop, and crouch, but never climb ladders,
ropes or scaffolds. This person must avoid concentrated exposure to
fumes, odors, dusts, gases, and poor ventilation, as well as hazardous
machinery and unprotected heights. This person is able to understand,
remember and apply simple instructions. She can interact appropriately
with supervisors, and occasionally with coworkers and the general
public. She can concentrate, persist and maintain pace for 2 hours at a
time. She can manage herself and adapt to routine changes in the
workplace.
Tr. 1277–78.
In assessing Frier’s RFC, the ALJ stated he “considered all of [Frier]’s
medically determinable impairments, including those that are not severe.” Tr.
1277. Considering the RFC finding and Frier’s age, education, and work
experience, the ALJ found that there are “a significant number of jobs in the
national economy” that Frier can perform. Tr. 1282–83. Thus, the ALJ found
Frier “not disabled.” Tr. 1283.
Arguments and Analysis
Frier contends the ALJ failed to apply the correct legal standards when
finding medical improvement as of November 12, 2014, because the ALJ failed
to compare medical evidence from before the CPD with the current medical
evidence. Doc. 15 at 6–11. Frier complains that the ALJ “relied extensively” on
the disability hearing officer’s decision and the ALJ’s finding “is almost
completely identical” to the officer’s finding “except the ALJ added a string
cite” to exhibits consisting of “hundreds of pages of treatment notes.” Doc. 15
at 8–9. Frier complains that “[t]he ALJ failed to cite to any specific medical
records in support of his finding” and instead “simply pulled notations” from
the officer’s decision. Doc. 15 at 9. According to Frier, the ALJ’s finding
therefore is not supported by substantial evidence. Doc. 15 at 11.
Frier relies on three cases: Reyes v. O’Malley, No. 8:23-cv-123-AEP, 2024
WL 939597 (M.D. Fla. Mar. 5, 2024); Brown v. Berryhill, No. 3:16-cv-1344-
MMH-JRK, 2017 WL 6541455 (M.D. Fla. Nov. 28, 2017), report and
recommendation adopted, 2017 WL 6536741 (M.D. Fla. Dec. 21, 2017); and
Olivo v. Colvin, No. 6:16-cv-259-PGB-JRK, 2017 WL 708743 (M.D. Fla. Jan.
30, 2017), report and recommendation adopted sub nom. Olivo v. Commissioner
of Social Security, 2017 WL 700367 (M.D. Fla. Feb. 22, 2017). See Doc. 15 at
9–10.
In Reyes, this Court held that the ALJ reversibly erred by failing to
directly cite or discuss any medical evidence from before the CPD, focusing the
analysis only on the plaintiff’s current condition. 2024 WL 939597, at *5–6. In
Brown and Olivo, this Court held that the ALJ reversibly erred by relying on
a hearing officer’s decision in finding medical improvement, explaining the
ALJ’s decision is the decision under review, not the hearing officer’s decision;
that the ALJ cited the hearing officer’s decision not to compare medical
evidence or to support the ALJ’s own comparison of the medical evidence but
for ultimate findings; and that the ALJ omitted material parts of the hearing
officer’s decision or the hearing officer relied on evidence absent from the
record. 2017 WL 6541455, at *5–6; 2017 WL 708743, at *5–6.
The Commissioner responds that the ALJ compared medical evidence
from before the CPD with current medical evidence and emphasizes the
paragraph in the ALJ’s decision explaining the finding that medical
improvement had occurred. Doc. 19 at 8–10 (citing Tr. 1276). The
Commissioner argues that “the mere fact that the ALJ and Disability Hearing
Officer provided similar, accurate summaries of the evidence is not error.” Doc.
19 at 11. The Commissioner concedes that the ALJ’s summary of medical
evidence from before the CPD is similar to the officer’s summary but adds that
the ALJ’s summary of current medical evidence “is not the same at all” and
that “the ALJ provided numerous citations to the record evidence for which he
reviewed to make his decision that were not included” in the officer’s decision.
Doc. 19 at 11. The Commissioner distinguishes the cases on which Frier relies,
observing that, in those cases, the ALJ merely incorporated by reference the
officer’s decision or cited only one medical record in the discussion of the CPD.
Doc. 19 at 11–12. The Commissioner argues that “the ALJ here provided his
own comparison of the evidence as required, and [Frier] cannot prove
otherwise.”6 Doc. 19 at 12.
The Commissioner relies on three cases: Christopher v. Acting
Commissioner of Social Security, No. 3:20-cv-1210-MMH-PDB, 2022 WL
4093068 (M.D. Fla. Sept. 7, 2022); Plain v. Saul, No. 1:20-cv-20624-JLK, 2021
WL 647135 (S.D. Fla. Jan. 29, 2021), report and recommendation adopted, 2021
WL 633764 (S.D. Fla. Feb. 18, 2021); and Attmore v. Colvin, 827 F.3d 872 (9th
Cir. 2016). See Doc. 19 at 12–13.
In Christopher, this Court affirmed the Acting Commissioner’s decision
finding the plaintiff no longer disabled. 2022 WL 4093068, at *2. The plaintiff
had argued that the ALJ failed to apply the correct legal standards in finding
medical improvement because the ALJ failed to compare all medical evidence
from before the CPD to the current medical evidence and because the ALJ
6The Commissioner also contends that Frier waived the argument that the ALJ’s
findings are not supported by substantial evidence by failing to provide “any explanation
or … a single citation to any medical or other record evidence that the ALJ did not
consider or that undermines the overall conclusion of the ALJ[.]” Doc. 19 at 10. In the
appellate context, a party forfeits an argument by raising it perfunctorily. Sappupo v.
Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014). For any particular finding
not discussed in Frier’s brief, the Commissioner is correct.
substantially copied a summary of evidence from a hearing officer’s decision.
Doc. 19-1 at 12, 16 (emphasis in original). The Court held that substantial
evidence supported the finding of medical improvement, rendering any error
in failing to compare all CPD evidence with the current evidence harmless, and
further held that “[t]he law does not prohibit an ALJ from borrowing language
from a hearing officer when undertaking the ALJ’s own decisionmaking.” Doc.
19-1 at 14–15, 17.
In Plain, the plaintiff moved for summary judgment, arguing that the
SSA had ceased her disability benefits without cause and had not considered
that she recently had been shot. 2021 WL 647135, at *6. The court denied the
motion, explaining that the ALJ’s opinion showed a review of the complete
medical record and that the ALJ used current and prior medical records to
support a finding of medical improvement. Id. at *6−7. The court noted that
“[a]lthough there is no strict requirement for evaluation of prior objective
findings,” the ALJ had explicitly considered the most recent determination
finding the plaintiff disabled due to bipolar disorder. Id.
In Attmore, the Ninth Circuit held that the ALJ had made the
appropriate comparison, but substantial evidence did not support the ALJ’s
finding of medical improvement. 827 F. 3d at 874. In deciding that the ALJ had
made the appropriate comparison, the court reasoned that the ALJ’s reference
to “improvement” implied a comparison of medical evidence from before the
CPD to the current medical evidence, and, therefore, the court could draw “the
specific and legitimate inference” that the ALJ compared the evidence as
required. Id. at 877 (internal alteration omitted).
In this action, the ALJ conducted the required comparison by comparing
medical evidence from before the CPD (Frier was allowed benefits due to
degenerative disc disease, obesity, depression, and anxiety; she weighed 241
pounds; she demonstrated mild to moderate tenderness of the thoracic and
lumbosacral spine; she reported 7/10 pain; she had a depressed and anxious
mood, a labile affect, short-term memory deficits, low tolerance for frustration,
and persistent mood swings) to the current medical evidence (Frier’s gait and
coordination are normal, her pain is controlled with medications, and her
mental status examinations have been relatively benign). See Tr. 1276. Unlike
the ALJ in Reyes, the ALJ in this action included as exhibits medical evidence
from before the CPD, see Tr. 1291–95, and used that evidence to support the
comparison, see Tr. 1276.
Substantial evidence—such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion—supports the ALJ’s finding
of medical improvement. As the ALJ explained, Frier’s CPD impairments have
improved, see Tr. 1276, and the exhibits cited by the ALJ in the comparison
contain medical evidence sufficiently supporting the finding, see, e.g., Tr. 683–
753 (office treatment records from Physicians Services from May 2010 to June
2014 noting normal gait and many other normal findings as well as effective
pain management); Tr. 828, 837 (progress notes from Winter Haven Hospital
Behavioral Health Division from November 2014 and February 2015 showing
improved mental status findings); Tr. 863, 871 (office-treatment records from
Neurology and Neurosurgery Associates, P.A., from March and April 2017
noting normal gait and many other normal findings); Tr. 964, 980 (emergency
department records from Winter Haven Hospital from June 2017 noting
normal coordination and many other normal findings); Tr. 1194, 1209, 1213,
1224, 1239–41, 1247, 2002–03, 2009, 2011–19, 2025–29 (office-treatment
records from Winter Haven Hospital Behavioral Health Division from
November 2016 to July 2023 showing improved mental status findings and
stability); Tr. 1894, 1899, (office-treatment records from Neurology and
Neurosurgery Associates, P.A., from December 2021 noting effective pain
management with medications); Tr. 1115–47 (office-treatment records from
Good Health Physicians LLC, from January 2017 to January 2018 reporting
that Frier’s pain is controlled with medication).
That the ALJ’s summary of medical evidence from before the CPD
borrows language from the hearing officer’s decision, compare Tr. 1276, with
Tr. 171, does not invalidate the ALJ’s decision. Unlike the ALJs in Brown and
Olivo, the ALJ in this action conducted the required comparison by comparing
evidence from before the CPD to the current medical evidence. See Tr. 1276.
And, as the Commissioner observes, see Doc. 19 at 11, the ALJ’s summary of
the current medical evidence and citations to medical records differ from the
hearing officer’s decision. Compare Tr. 1276, with Tr. 171–72. Furthermore,
The law requires a comparison of the current medical severity of the
impairment present at the time of the CPD to the medical severity of the
impairment at the time of the CPD. See 20 C.F.R. § 416.994(b)(1)(vii).
The law does not prohibit an ALJ from borrowing language from a
hearing officer when undertaking the ALJ’s own decisionmaking.
Doc. 19-1 at 17.
Recommendation
The undersigned recommends affirming the Commissioner of Social
Security’s final decision and directing the Clerk of Court to enter judgment
for the Commissioner and against Claudia Frier and close the file.
Objections and Responses
“Within 14 days after being served with a copy of [a] recommended
disposition, a party may serve and file specific written objections to the
proposed findings and recommendations.” Fed. R. Civ. P. 72(b)(2). “A party
may respond to another party’s objections within 14 days after being served
with a copy.” Id. “The district judge must determine de novo any part of the
magistrate judge’s disposition that has been properly objected to.” Fed. R. Civ.
P. 72(b)(8); see also 28 U.S.C. § 636(b)(1)(C) (“A [district judge] shall make a de
novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made.”). “A party failing to
object to ... findings or recommendations ... in a report and recommendation
... Waives the right to challenge on appeal the district court’s order based on
unobjected-to factual and legal conclusions[.]” 11th Cir. R. 3-1.
Entered in Jacksonville, Florida, on January 3, 2025.
PATRICIA D. BARKSDALE
United States Magistrate Judge
C: The Hon. William Jung
Counsel of record
17