Ortiz-Guzman v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

MANAEL ORTIZ-GUZMAN,

Plaintiff,

v. Case No: 6:24-cv-1708-JSS-LHP

COMMISSIONER OF SOCIAL

SECURITY,

Defendant

REPORT AND RECOMMENDATION

TO THE UNITED STATES DISTRICT COURT:

Manael Ortiz-Guzman (“Claimant”) appeals the final decision of the

Commissioner of Social Security (“the Commissioner”) denying his application for

disability insurance benefits. Doc. No. 1. Claimant raises one assignment of error

regarding the Commissioner’s final decision, and based on that argument, requests

that the matter be remanded for further administrative proceedings. Doc. No. 14;

see also Doc. No. 19. The Commissioner asserts that the decision of the

Administrative Law Judge (“ALJ”) is supported by substantial evidence and should

be affirmed. Doc. No. 16. For the reasons discussed herein, it is RESPECTFULLY

RECOMMENDED that the Commissioner’s final decision be AFFIRMED.

I. PROCEDURAL HISTORY.

On March 3, 2021, Claimant filed an application for disability insurance

benefits, alleging that he became disabled on December 12, 2020. R. 24, 85, 214–

15. 1 His claim was denied initially and on reconsideration, and Claimant

requested a hearing before an ALJ. R. 105, 114, 126. A hearing was held before

the ALJ on March 31, 2023, at which Claimant appeared with an attorney. R. 48–

79.2 Claimant and a vocational expert (“VE”) testified. Id. After the hearing, the

ALJ issued an unfavorable decision finding that Claimant was not disabled. R. 24–

39. On July 22, 2024, the Appeals Council denied Claimant’s request for review.

R. 1–6. Claimant now seeks review in this Court. Doc. No. 1.

II. THE ALJ’S DECISION.

After careful consideration of the entire record, the ALJ performed the five-

step evaluation process as set forth in 20 C.F.R. § 404.1520(a). R. 24–39.3 The ALJ

1 The transcript of the administrative proceedings is available at Doc. No. 12, and

will be cited as “R. ___.” In the transcript, the “Application Summary for Disability

Insurance Benefits” states that Claimant applied for benefits on March 4, 2021, but

according to the ALJ’s decision and other application documents, Claimant filed the

application on March 3, 2021. Compare R. 214–15, with R. 24, 85. Because the application

date is not at issue in nor dispositive of this appeal, the undersigned utilizes the application

date stated by the ALJ: March 3, 2021.

2 The hearing was initially scheduled for November 17, 2022, but was postponed.

See R. 80–84.

3 An individual claiming Social Security disability benefits must prove that he or

she is disabled. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005) (citing Jones v. Apfel,

190 F.3d 1224, 1228 (11th Cir. 1999)). “The Social Security Regulations outline a five-step,

first found that Claimant meets the insured status requirements of the Social

Security Act through December 31, 2025. R. 26. The ALJ further found that

Claimant had not engaged in substantial gainful activity since December 12, 2020,

the alleged disability onset date. Id. The ALJ also found that Claimant suffered

from the following severe impairments: degenerative joint disease; status-post

total arthroplasty of the right knee; and obesity. Id. 4 However, the ALJ

determined that Claimant did not have an impairment or combination of

impairments that met or equaled a listed impairment in 20 C.F.R. Part 404, Subpart

P, Appendix 1. R. 28–29.

After consideration of the entire record, the ALJ found that Claimant had the

residual functional capacity (“RFC”) to perform light work as defined in the Social

Security regulations,5 except:

sequential evaluation process used to determine whether a claimant is disabled: (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.” Winschel v.

Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (citing Phillips v. Barnhart, 357 F.3d

1232, 1237 (11th Cir. 2004); 20 C.F.R. §§ 404.1520(a)(i)–(v), 416.920(a)(i)–(v)).

4 The ALJ determined that Claimant’s impairments of acid reflux disease, hiatal

hernia, depression, and substance use disorder were non-severe. R. 27–28.

5 The social security regulations define light work to include:

[H]e can stand and walk for a total of four hours in an eight-hour

workday; sit for about six hours in an eight-hour workday;

occasionally climb ramps and stairs; never climb ladders, ropes, or

scaffolds; occasionally balance, stoop, kneel, crouch, and crawl; never

work around unprotected heights or moving mechanical parts; and

never operate a motor vehicle as part of job duties performed.

R. 29. The ALJ found that Claimant was unable to perform any past relevant work,

including work as an industrial truck operator, material handler, or construction

worker. R. 37. However, considering Claimant’s age, education, work

experience, and RFC, as well as the testimony of the VE, the ALJ concluded that

there were jobs existing in significant numbers in the national economy that

Claimant could perform, representative occupations to include mail clerk, marker,

garment sorter, lens inserter, document preparer, and final assembler. R. 38–39.

Accordingly, the ALJ concluded that Claimant was not under a disability, as

defined in the Social Security Act, from the alleged disability onset date (December

12, 2020) through the date of the decision. R. 39.

lifting no more than 20 pounds at a time with frequent lifting or carrying of

objects weighing up to 10 pounds. Even though the weight lifted may be

very little, a job is in this category when it requires a good deal of walking or

standing, or when it involves sitting most of the time with some pushing and

pulling of arm or leg controls. To be considered capable of performing a full

or wide range of light work, you must have the ability to do substantially all

of these activities. If someone can do light work, we determine that he or

she can also do sedentary work, unless there are additional limiting factors

such as loss of fine dexterity or inability to sit for long periods of time.

20 C.F.R. § 404.1567(b).

III. STANDARD OF REVIEW.

The Court has jurisdiction to review the decision of the Commissioner

pursuant to 42 U.S.C. § 405(g), as adopted by reference in 42 U.S.C. § 1383(c)(3).

The scope of the Court’s review is limited to determining whether the

Commissioner applied the correct legal standards and whether the Commissioner’s

findings of fact are supported by substantial evidence. Winschel v. Comm’r of Soc.

Sec., 631 F.3d 1176, 1178 (11th Cir. 2011). The Commissioner’s findings of fact are

conclusive if they are supported by substantial evidence, 42 U.S.C. § 405(g), which

is defined as “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, 1440 (11th Cir. 1997).

The Court must view the evidence as a whole, taking into account evidence

favorable as well as unfavorable to the Commissioner’s decision, when determining

whether the decision is supported by substantial evidence. Foote v. Chater, 67 F.3d

1553, 1560 (11th Cir. 1995) (per curiam). The Court may not reweigh evidence or

substitute its judgment for that of the Commissioner, and, even if the evidence

preponderates against the Commissioner’s decision, the reviewing court must

affirm if the decision is supported by substantial evidence. Bloodsworth v. Heckler,

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

IV. ANALYSIS.

Claimant raises one assignment of error in this appeal: that the ALJ erred in

evaluating the medical evidence of record, including medical opinions, related to

his physical impairments. Doc. No. 14; see also Doc. No. 19. The Commissioner

responds in opposition. Doc. No. 16.

The ALJ is tasked with assessing a claimant’s RFC and ability to perform past

relevant work. Phillips v. Barnhart, 357 F.3d 1232, 1238 (11th Cir. 2004), superseded

on other grounds by 20 C.F.R. § 404.1520c, 20 C.F.R. §§ 404.1520(a)(4)(i)–(v),

416.920(a(4))(i)–(v)). The RFC “is an assessment, based upon all of the relevant

evidence, of a claimant’s remaining ability to do work despite his impairments.”

Lewis, 125 F.3d at 1440 (citing 20 CFR § 404.1545(a)). In determining a claimant’s

RFC, the ALJ must consider all relevant evidence, including the opinions of medical

and non-medical sources. 20 C.F.R. § 404.1545(a)(3).

Claimant filed his application for disability benefits on March 3, 2021. R. 24,

85, 214–15. Effective March 27, 2017, the Social Security Administration

implemented new regulations related to the evaluation of medical opinions, which

provide, in pertinent part, as follows:

(a) How we consider medical opinions and prior administrative

medical findings. We 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 your

medical sources. When a medical source provides one or more

medical opinions or prior administrative medical findings, we will

consider those medical opinions or prior administrative medical

findings from that medical source together using the factors listed in

paragraphs (c)(1) through (c)(5) of this section, as appropriate.[6] The

most important factors we consider when we evaluate the

persuasiveness of medical opinions and prior administrative medical

findings are supportability (paragraph (c)(1) of this section) and

consistency (paragraph (c)(2) of this section). We will articulate how

we considered the medical opinions and prior administrative medical

findings in your claim according to paragraph (b) of this section.

20 C.F.R. § 404.1520c(a). The regulations further state that because supportability

and consistency are the most important factors under consideration, the

Commissioner “will explain how [he] considered the supportability and

consistency factors for a medical source’s medical opinions or prior administrative

medical findings in [the] determination or decision.” Id. § 404.1520c(b)(2).

“Supportability relates to the extent to which a medical source has articulated

support for the medical source’s own opinion, while consistency relates to the

relationship between a medical source’s opinion and other evidence within the

record.” Welch v. Comm’r of Soc. Sec., No. 6:20-cv-1256-DCI, 2021 WL 5163228, at *2

(M.D. Fla. Nov. 5, 2021) (footnote omitted) (citing 20 C.F.R. §§ 404.1520c(c)(1)–(2),

416.920c(c)(1)–(2)).

6 Subparagraph (c) provides that the factors to be considered include: (1)

supportability; (2) consistency; (3) relationship with the claimant (which includes

consideration of the length of treatment relationship; frequency of examination; purpose

of treatment relationship; extent of treatment relationship; and examining relationship); (4)

specialization; and (5) other factors that tend to support or contradict a medical opinion or

prior administrative medical finding. 20 C.F.R. § 404.1520c(c).

Pursuant to the applicable regulations, the Commissioner is not required to

articulate how he “considered each medical opinion or prior administrative medical

finding from one medical source individually.” 20 C.F.R. § 404.1520c(b)(1).

“Courts have found that ‘[o]ther than articulating his consideration of the

supportability and consistency factors, the Commissioner is not required to discuss

or explain how he considered any other factor in determining persuasiveness.’”

Bell v. Comm’r of Soc. Sec., No. 6:20-cv-1923-DCI, 2021 WL 5163222, at *2 (M.D. Fla.

Nov. 5, 2021) (quoting Freyhagen v. Comm’r of Soc. Sec. Admin., No. 3:18-cv-1108-

MCR, 2019 WL 4686800, at *2 (M.D. Fla. Sept. 26, 2019)).

Here, the ALJ’s decision reflects that the pertinent medical opinions related

to Claimant’s physical impairments7 include: (1) a May 2021 assessment by Thomas

Brodrick, M.D., Claimant’s orthopedic surgeon; (2) a July 2021 review by Prianka

Gerrish, M.D., a s state agency consultant; (3) an April 2022 review by Sharka Junejo,

M.D., a state agency consultant; and (4) a November 2022 opinion from J. Richard

Rhodes, M.D., Claimant’s orthopedic surgeon. R. 35–36. Claimant’s argument

centrally concerns the ALJ’s consideration of two of these medical opinions (Dr.

Junejo and Dr. Rhodes) in light of his failed knee replacement surgery (March 2022),

7 Claimant raises no issues in this appeal with regard to the ALJ’s consideration of

his mental impairments.

which necessitated a subsequent revision surgery (November 2022).8 Claimant

challenges the ALJ’s reliance or weight placed (or not placed) on medical opinions

during these periods, lack of inferences taken from the evidence regarding his

surgeries, and the ALJ’s alleged substitution of lay judgment for the medical

opinions of a treating physician without seeking additional medical evidence in

support. Doc. No. 14, at 4–12; see also Doc. No. 19.9

With regard to these opinions, the ALJ’s decision states:

In April 2022, Sharka Junejo, M.D., a State Agency physical medical

consultant, reviewed the record on reconsideration, affirming most of

Dr. Gerrish’s assessment, other than finding that the claimant could

never climb ladders, ropes, or scaffolds, and that he had to avoid even

moderate exposure to hazards. On both initial review and

reconsideration, the State Agency psychological medical consultants

found that the claimant’s mental impairments imposed no more than

mild functional limitations and were, therefore, found to be non-severe

8 The record reflects that Claimant underwent a right total knee replacement on

March 7, 2022. E.g., R. 711. The record also reflects that this was diagnosed as a failed

surgery. E.g., R. 935. Claimant underwent a revision surgery on November 16, 2022.

E.g., R. 1651.

9 Claimant is not arguing that the ALJ failed to consider any medical opinions of

record, nor that the ALJ failed to comply with the applicable regulations. Instead,

Claimant’s arguments concern how persuasive the ALJ considered the medical opinions

of record and the weight assigned to them. Doc. Nos. 14, 19. Accordingly, the analysis

in this report is so limited. See Borroto v. Comm’r of Soc. Sec., No. 2:17-cv-673-FtM-99CM,

2019 WL 488327, at *1, n. 2 (M.D. Fla. Jan. 8, 2019), report and recommendation adopted, 2019

WL 290599 (M.D. Fla. Jan. 23, 2019) (“Any issue not raised by Plaintiff on appeal is deemed

to be waived.” (citing Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1330 (11th Cir.

2004) (“[A] legal claim or argument that has not been briefed before the court is deemed

abandoned and its merits will not be addressed.”))); see also Solutia, Inc. v. McWane, Inc.,

672 F.3d 1230, 1239 (11th Cir. 2012) (“There is no burden upon the district court to distill

every potential argument that could be made based on the materials before it . . . .” (quoting

Resolution Tr. Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995))).

(Exhibits 2A and 4A). The opinions of the medical consultants are

generally persuasive the fully developed record continues to support

the finding of these sources that the claimant was able to perform a

range of light exertional work as set forth herein, on a sustained and

continuous basis. There is a high degree of consistency between the

opinions of the two physical medical consultants and the two

psychological medical consultants, respectively. Additionally, these

opinions are well supported by the longitudinal treatment record.

The undersigned notes that the regulations consider each of these

sources to be a highly qualified, acceptable medical source as well as

an expert in Social Security disability evaluation. With respect to the

opinions of the two physical medical consultants, the undersigned

notes a slight difference between them in that the source at the

reconsideration level of review precluded climbing of ladders, ropes,

and scaffolds, whereas the source at the initial level of review restricted

this activity to occasionally, and the source at the reconsideration level

of review essentially precluded all work around unprotected heights

and moving mechanical parts whereas the source at the initial level

appeared to restrict only “concentrated” exposure to these workplace

hazards. The undersigned finds that the fully developed record

supports the opinion of the source at the reconsideration level of

review, which is therefore considered more persuasive.

. . . .

In November 2022, J. Richard Rhodes, M.D., the claimant’s orthopedic

surgeon, completed a medical source questionnaire, indicating that he

had been treating the claimant for six months. The claimant was

diagnosed with a failed right total knee arthroplasty. Dr. Rhodes

indicated that the claimant could sit for zero to two hours in an eight-

hour workday. The claimant could do minimal walking and standing

with a walker only. Dr. Rhodes indicated that the claimant could

never lift and carry even less than ten pounds and never use upper or

lower extremities for pushing or pulling. The claimant could never

reach, handle, finger, or feel. The claimant’s pain or other symptoms

would frequently interfere with the attention or concentration needed

to perform even simple work tasks. He should elevate his legs when

seated. The claimant was expected to be absent from work four or

more days per month due to his impairments and/or treatment. He

was receiving physical therapy treatment pending revision right total

knee arthroplasty surgery scheduled for November 16, 2022. Dr.

Rhodes cited objective findings of limited range of motion, pain,

swelling, and antalgic gait as supporting his assessment (Exhibit 21F).

This opinion is unpersuasive for purposes of determining the

claimant’s residual functional capacity during the entire period at

issue. Significantly, Dr. Rhodes provided this opinion when the

claimant was awaiting the scheduled revision knee surgery. It

appears to be based on the claimant’s symptoms during an

exacerbation prior to surgery and is therefore relevant to a very limited

period. The assessed limitations are inconsistent with the record

during the period being adjudicated. Further, some of the assessed

limitations, such as the extreme limitation on the ability to sit, and the

inability to push, pull, reach, handle, finger, or feel are unsupported by

clinical findings even at the time the questionnaire was completed.

R. 35–36. The ALJ also addressed throughout the decision the medical evidence of

record, which included discussion of the records related to the first knee

replacement surgery in March 2022, Claimant’s complaints thereafter, that the

March 2022 surgery was unsuccessful, and that Claimant was required to undergo

a revision surgery in November 2022. R. 30–33.

Claimant’s arguments are this: (1) the ALJ erred in finding Dr. Junejo’s

opinions, rendered on April 18, 2022, see R. 103, persuasive because Claimant could

not reasonably have been able to perform light work only a month after his first

knee replacement surgery, rendering Dr. Junejo’s opinions unreasonable; (2) the

ALJ erred in finding Dr. Junejo’s opinions persuasive because his first knee

replacement surgery failed necessitating a revision surgery after Dr. Junejo’s

opinions, rendering Dr. Junejo’s opinions “outdated” and based on an incomplete

record; (3) because Dr. Junejo’s April 2022 opinion was rendered more than twelve

months prior to the ALJ’s decision, the ALJ erred in failing to evaluate whether

Claimant satisfied the disability criteria during any twelve-month period during

the period under consideration (i.e., from the date of Dr. Junejo’s opinion (April 18,

2022) through the date of the decision (July 13, 2023)); (4) the ALJ erred in rejecting

Dr. Rhodes’s opinions because Dr. Rhodes treated Claimant, and was the only

physician to provide any opinions that accounted for Claimant’s revision surgery;

(5) because the ALJ rejected Dr. Rhodes’s opinions and Dr. Junejo’s opinions did

not account for the failed first knee replacement surgery and the revision surgery,

the ALJ effectively substituted his lay opinion for medical professionals in

formulating the RFC; and (6) to reject Dr. Rhodes’s opinions, the ALJ was required

to seek additional medical evidence to support the RFC determination, such as an

updated consultative examination, and his failure to do so failed to fulfill his

independent duty to develop the administrative record. Doc. No. 14, at 4–12; see

also Doc. No. 19.

Upon consideration, the undersigned agrees with the Commissioner that

Claimant is in essence impermissibly inviting the Court to reweigh the evidence.

But “the Court is limited to determining whether the ALJ’s decision is supported

by substantial evidence, regardless of whether the Court agrees with that decision.”

Gil v. Comm’r of Soc. Sec., No. 6:20-cv-1850-LHP, 2022 WL 445498, at *6, n.10 (M.D.

Fla. Feb. 14, 2022) (citing Phillips, 357 F.3d at 1240 n.8 (stating that the district court

“may not decide the facts anew, reweigh the evidence, or substitute [its] judgment

for that of the [Commissioner].”)).

As an initial matter, at bottom, Claimant is arguing that the ALJ erred in

finding more persuasive the opinions of state agency consultant Dr. Junejo over the

opinions of treating provider Dr. Rhodes. Doc. Nos. 14, 19. But the “new

regulatory scheme no longer requires the ALJ to either assign more weight to

medical opinions from a claimant’s treating source or explain why good cause exists

to disregard the treating source’s opinion.” Matos v. Comm’r of Soc. Sec., No. 21-

11764, 2022 WL 97144, at *4 (11th Cir. 2022);10 Harner v. Soc. Sec. Admin., Comm’r, 38

F.4th 892, 896 (11th Cir. 2022); see also Ingram v. O’Malley, No. 7:23-CV-00653-LSC,

2024 WL 3700207, at *3 (N.D. Ala. Aug. 7, 2024) (“The removal of the treating source

rule is intended to eliminate confusion about a hierarchy of medical sources and

instead focus adjudication on the evidence, as well as ensure that courts are not

reweighing the evidence under the substantial evidence standard of review, which

is intended to be a highly deferential standard.” (citation and quotation marks

omitted)).11

10 Unpublished opinions of the Eleventh Circuit are cited as persuasive authority.

See 11th Cir. R. 36–2.

11 The undersigned therefore finds the out-of-circuit authority applying the treating

physician rule on which Claimant relies unpersuasive. Doc. No. 14, at 7, Doc. No. 19, at

4; see Jelinek v. Astrue, 662 F.3d 805, 812 (7th Cir. 2011); Morales v. Apfel, 225 F.3d 310, 319-

20 (3d Cir. 2000); Tonapetyan v. Halter, 242 F.3d 1144, 1151 (9th Cir. 2001).

Moreover, Claimant’s more specific arguments are unpersuasive on the facts

of this case and under the new regulations. First, Claimant takes issue with the

ALJ finding persuasive Dr. Junejo’s opinions because Dr. Junejo’s opinions did not

adequately account for his first knee replacement surgery from March 2022 and

because Dr. Junejo’s opinions were “outdated” due to the revision surgery in

November 2022. Doc. No. 14, at 4–7; Doc. No. 19, at 3–4.12 However, as the

Commissioner argues, the ALJ’s decision reflects that he did not wholesale accept

Dr. Junejo’s opinions without further analysis; instead, the ALJ considered Dr.

Junejo’s opinions in conjunction with the remaining evidence of record (to include

the medical records noting Claimant’s first surgery failed and a revision surgery

was required), Claimant’s subjective complaints, effectiveness of treatment, and

12 Claimant points to a University of Maryland St. Joseph Medical Center website

to argue that recovery periods for knee replacement surgery would have been longer than

allowed by Dr. Junejo’s opinions. Doc. No. 14, at 5; Doc. No. 19, at 4; see

https://www.umms.org/sjmc/health-services/orthopedics/joint-replacement/knee-

replacement/continuing-your-recovery-knee-surgery. But given that the website

provides only general information and does not speak to Claimant specifically, the

undersigned finds that it has little persuasive value here. See, e.g., Fullerton v. Comm’r of

Soc. Sec., No. 3:14CV67-SAA, 2014 WL 5800098, at *3 (N.D. Miss. Nov. 7, 2014) (finding

unpersuasive reliance on websites discussing possible symptoms of the claimant’s

impairments without the claimant providing a medical opinion from a physician

indicating that the claimant suffered impairments greater than the RFC); Engram v. Colvin,

No. 1:12CV388-MHT, 2013 WL 4442023, at *10 (M.D. Ala. Aug. 15, 2013) (“‘A physical or

mental impairment must be established by medical evidence consisting of signs,

symptoms, and laboratory findings, not only by [the claimant’s] statement of symptoms’

or an internet article.” (quoting 20 C.F.R. § 404.1508.)).

activities of daily living, R. 30–37, none of which Claimant addresses in his briefing,

see Doc. Nos. 14, 19, and all of which are proper considerations for the ALJ when

formulating the RFC. 20 C.F.R. § 404.1545(a)(3).

Because the decision reflects that the ALJ considered Claimant’s medical

condition as a whole, the undersigned finds unpersuasive Claimant’s contention

that the ALJ improperly found persuasive Dr. Junejo’s opinions. See, e.g., Burgess

v. O’Malley, No. 8:23-cv-290-AEP, 2024 WL 982115, at *5 (M.D. Fla. Mar. 7, 2024)

(rejecting argument that the ALJ erred in relying on “outdated medical opinions”

from state agency consultants where the ALJ properly evaluated relevant evidence

and considered the claimant’s condition as a whole); Durborow v. O’Malley, No. 6:22-

cv-2295-JRK, 2024 WL 706079, at *7 (M.D. Fla. Feb. 21, 2024) (“Of course, the

nonexamining opinions occurred earlier in the administrative process—at the initial

denial and reconsideration phases—as is typical. This timing does not, in and of

itself, mean the opinions are ‘outdated,’ though.”); see also Cooper v. Comm'r of Soc.

Sec., 521 F. App’x 803, 807 (11th Cir. 2013) (under older regulations, noting that

“even if the non-examining doctor was unable to review all of [claimant’s] medical

records before making her RFC determination, she cited several portions of the

record in support of her conclusions, and the ALJ, who made the ultimate

determination, had access to the entire record as well as [the claimant’s]

testimony”); Hall v. Saul, No. 8:20-cv-197-TGW, 2021 WL 1100982, at *7 (M.D. Fla.

Mar. 23, 2021) (under older version of regulations, finding ALJ did not err in giving

more weight to reviewing doctors’ opinions over examining doctor where the ALJ

“did not adopt wholesale the opinions of the reviewing doctors . . . [t]o the contrary,

the [ALJ] found, after considering the entire record, that the plaintiff’s mental

impairments were severe and warranted substantial mental functional

limitations”); Haynes v. Comm’r of Soc. Sec., No. 8:18-cv-2673-T-MAP, 2019 WL

5884669, at *3 (M.D. Fla. Nov. 12, 2019) (“It is not error, however, for an ALJ to rely

on the allegedly outdated opinion of a state agency consultant, when it is obvious

the ALJ has considered all the evidence.”); cf. Church v. Berryhill, No. 17-159, 2018

WL 1696701, at *1–2 (W.D. Pa. Apr. 6, 2018) (affirming ALJ’s reliance on the opinion

of a state agency reviewer whose opinion predated the claimant’s hand surgery

where the record reflected the ALJ considered the claimant’s condition as a

whole).13

Second, and importantly, Claimant does not argue that the ALJ failed to

comply with the applicable regulations in assessing the medical opinions of record.

13 In his briefing, Claimant also points to evidence of record demonstrating that he

used a walker into 2023, which he follows with a statement that the ALJ “clearly” erred in

relying on Dr. Junejo’s opinions, but without connecting the two. Doc. No. 14, at 7.

Claimant does not address the ALJ’s consideration of Claimant’s use of a walker or the

finding in the decision that “the record fails to document the medical necessity of the need

for an assistive device for a continuous period of at least 12 months during the relevant

period.” R. 31. Accordingly, given that Claimant has waived any issue in this regard,

the undersigned does not further address Claimant’s use of a walker.

Doc. Nos. 14, 19. Nor does Claimant address the reasons given by the ALJ for

discounting Dr. Rhodes’s opinions, such that the ALJ found that Dr. Rhodes’s

opinions were based on exacerbated symptoms prior to his revision surgery and

thus related to a limited period, the assessed limitations were inconsistent with the

record during the entire disability period, and some of the opined limitations were

unsupported even during the pre-revision-surgery period to which the opinions

related. R. 36. Accordingly, Claimant’s general contention that the ALJ erred in

finding unpersuasive Dr. Rhodes’s opinions is unavailing. Cf. Durborow, 2024 WL

706079, at *8 (affirming over general contention that the ALJ erred in not relying on

medical opinions where the ALJ took into account and explained the consistency

and supportability factors under the new regulations); see also Gil, 2022 WL 445498,

at *6 (no error in ALJ’s finding that medical opinion was impacted by close

proximity to surgery).

Claimant does argue that because the ALJ should not have relied on Dr.

Junejo’s opinions, and instead should have adopted Dr. Rhodes’s opinions, the ALJ

“failed to evaluate or consider whether [he] may have satisfied the disability criteria

for any 12 month interval during the period under consideration,” and that Dr.

Rhodes’s opinions should be “deemed to relate back to at least the time of [his] first

failed surgery, due to the fact that Dr. Junejo did not know or understand that it

had failed.” Doc. No. 14, at 8–9; see also Doc. No. 19, at 2–3. Besides citation to

regulations defining RFC and disability periods, Claimant cites no applicable legal

authority to support these arguments, see id., and as discussed above, the

undersigned recommends the Court find the ALJ’s consideration of the opinions of

Drs. Junejo and Rhodes supported by substantial evidence, rendering these

arguments unavailing. Further, as discussed above, the decision reflects that the

ALJ considered Claimant’s first failed surgery and subsequent revision surgery in

formulating the RFC, making Claimant’s argument that the ALJ failed to consider

any potential disability during this period unpersuasive. See R. 30–37 (discussing

Claimant’s surgeries, medical evidence related thereto, evidence of use of (or non-

use of) assistive devices before and after the surgeries, receipt of physical therapy,

pain management, and Claimant’s subject complaints).

Finally, Claimant argues that because the ALJ relied on Dr. Junejo’s pre-

revision-surgery opinions and found Dr. Rhodes opinions unpersuasive, the ALJ

impermissibly substituted his lay judgment for those of medical professionals in

formulating the RFC. Doc. No. 14, at 9–10; Doc. No. 19, at 3. Relatedly, Claimant

contends that if the ALJ wished to reject Dr. Rhodes’s opinions, the ALJ was

required to obtain additional medical evidence, such as a consultative examination.

Doc. No. 14, at 11–12. On this record, the undersigned finds these arguments

unpersuasive.

First, “[t]here is no requirement . . . that an ALJ’s RFC must be based on a

physician’s opinion. While the ALJ considers medical opinions in assessing the

RFC, it is the ALJ’s responsibility to determine the ultimate issue of the Claimant’s

RFC, and not the physicians.” Barbero v. Comm’r of Soc. Sec., No. 6:21-cv-527-DCI,

2022 WL 4095059, at *9 (M.D. Fla. Sept. 7, 2022) (citing Green v. Soc. Sec. Admin., 223

F. App’x 915, 923 (11th Cir. 2007) (rejecting a claimant’s argument that the ALJ’s

RFC must be based on a physician’s opinion)); see also Moore v. Soc. Sec. Admin,

Comm’r, 649 F. App’x 941, 945 (11th Cir. 2016) (“[T]he task of determining a

[Plaintiff's RFC] and ability to work rests with the [ALJ], not a doctor.” (citation

omitted)). And here, the decision reflects that the ALJ considered the opinion

evidence of record, determined its persuasiveness, and summarized the medical

evidence contained in the record, demonstrating that “the RFC determination was

based on a careful analysis.” See Barbero, 2022 WL 4095059, at *9. Accordingly,

Claimant’s argument that the ALJ substituted his lay opinion for those of medical

professionals is unpersuasive. See id.; see also Perez v. Comm’r of Soc. Sec., No. 23-

13018, 2024 WL 3292612, at *2 (11th Cir. July 3, 2024) (finding that when an ALJ

considered the treatment records and administrative medical findings and properly

evaluated them, then the ALJ did not substitute her opinion for that of the medical

experts); McCullars v. Comm’r, Soc. Sec. Admin., 825 F. App’x 685, 691 n.1 (11th Cir.

2020) (“ALJs are permitted, and in fact required, to use judgment in weighing

competing evidence and reaching a final determination as to whether an applicant

is disabled. Here, the ALJ did not rely on his own independent findings; instead,

the ALJ considered the medical record, assigned ‘great weight’ to certain medical

experts and only ‘some weight’ to other experts . . ., and stated his reasons for doing

so. This was entirely proper.” (citations omitted)).

Second, “[e]ven though Social Security courts are inquisitorial, not

adversarial, in nature, claimants must establish that they are eligible for benefits.

The administrative law judge has a duty to develop the record where appropriate

but is not required to order a consultative examination as long as the record contains

sufficient evidence for the administrative law judge to make an informed decision.”

Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1269 (11th Cir. 2007) (citing

Doughty v. Apfel, 245 F.3d 1274, 1281 (11th Cir. 2001)). Here, there is nothing to

suggest that the record was lacking sufficient evidence for the ALJ to make an

informed decision. See id. Indeed, besides citing to the March 2022 and

November 2022 surgeries and Dr. Rhodes’s opinions, which the ALJ clearly

considered in the decision, Claimant points to nothing further. See Doc. Nos. 14,

19. Accordingly, Claimant has not established that additional medical evidence or

a consultative examination was required. See generally Doughty, 245 F.3d at 1281

(“The regulations ‘normally require’ a consultative examination only when

necessary information is not in the record and cannot be obtained from the

claimant’s treating medical sources or other medical sources.” (citing 20 C.F.R. §

404.1519a(b)).

In sum, Claimant’s “disagreement with the [ALJ] essentially is a difference of

opinion as to the weight to be given to certain circumstances. The [ALJ], however,

is given the responsibility to assess those circumstances so that [Claimant’s]

different opinion must yield.” See Hall, 2021 WL 1100982, at *7. Because the ALJ

complied with the applicable regulations in addressing the medical opinions of

record and formulating Claimant’s RFC, and the decision is supported by

substantial evidence, the undersigned will respectfully recommend that the Court

reject Claimant’s sole assignment of error. See Robinson v. Comm’r of Soc. Sec., No.

5:22-cv-18-MAP, 2023 WL 2473427, at *5 (M.D. Fla. Mar. 13, 2023) (“[W]hatever the

meaning of ‘substantial’ in other contexts, the threshold for such evidentiary

sufficiency is not high.” (quoting Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019)));

Hogan v. Comm'r of Soc. Sec., No. 2:22-cv-223-KCD, 2022 WL 17818653, at *6 (M.D.

Fla. Dec. 20, 2022) (“The substantial evidence threshold is not high and defers to the

presiding ALJ, who heard testimony and reviewed the medical evidence. Given

this low bar, the Court will affirm.” (citing Rodriguez v. Berryhill, 836 F. App’x 797,

803 (11th Cir. 2020)).

V. RECOMMENDATION.

Upon consideration of the foregoing, it is RESPECTFULLY

RECOMMENDED that the Court AFFIRM the final decision of the Commissioner.

It is further RECOMMENDED that the Court direct the Clerk of Court to issue a

judgment consistent with its Order on this Report and Recommendation and,

thereafter, to close the file.

NOTICE TO PARTIES

A party has fourteen days from the date the Report and Recommendation is

served to serve and file written objections to the Report and Recommendation’s

factual findings and legal conclusions. Failure to serve written objections waives

that party’s right to challenge on appeal any unobjected-to factual finding or legal

conclusion the district judge adopts from the Report and Recommendation. 11th

Cir. R. 3-1.

Recommended in Orlando, Florida on May 6, 2025.

LESLIE NOFFMAN PRICE

UNITED STATES MAGISTRATE JUDGE

Copies furnished to:

Presiding District Judge

Counsel of Record

Unrepresented Party

Courtroom Deputy