Petition for Writ of Certiorari — Elisha L. Gresham, Petitioner v. Martin J. O'Malley, Commissioner of Social Security
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[DO NOT PUBLISH]
^taks Court of Appeals
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No. 22-13807
Non-Argument Calendar
ELISHA L. GRESHAM,
Plaintiff-Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
Appeal from the United States District Court
for the Middle District of Florida
D C. Docket No. 8:21-cv-00601-MRM
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Before Wilson, JORDAN, and Branch, Circuit Judges.
PER CURIAM:
Elisha Gresham, proceeding pro se, appeals a magistrate
judge s order affirming the Social Security Administration ("SSA”)
Commissioner s decision denying her application for disability
insurance benefits ("DIB”) under 42 U.S.C. § 405(g).1 She raises
several issues on appeal, but only one of these issues is preserved
for review—whether the administrative law judge ( ALJ ) properly
weighed the medical opinion evidence. 2 After careful review, we
affirm.
1 Gresham consented to the magistrate judge conducting all proceedings in
the district court and issuing the final order.
2 Gresham raises a number of issues for the first time on appeal. Specifically,
she asserts that (1) she cannot do the jobs the ALJ found existed for someone
with her limitations in the national economy; (2) the ALJ ignored that she was
terminated from her lastjob because she was never medically cleared to return
to work and she routinely missed work for doctor's appointments; (3) the ALJ
omitted and foiled to consider the vocational expert’s written report; (4) the
ALJ created a conflict of interest by asking Dr. Meltzer to review her file; and
(5) the magistrate judge who issued the order was not the same one who
presided over an earlier case conference in the underlying proceedings, which
calls into question the validity of the underlying order. We decline to consider
these issues as she raises them for the first time on appeal. See Access Now, Inc.
v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004) ("This Court has
repeatedly held that an issue not raised in the district court and raised for the
first time in an appeal will not be considered by this court.” (quotation
omitted)); Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999) (declining to
consider an issue raised before the district court and presented for the first time
on appeal in a social security case); Kelley v. Apfel, 185 F.3d 1211,1215 (11th Cir.
I
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Background
In August 2015, at age 47, Gresham applied for DIB,
asserting that she was unable to work due to disabling conditions,
that started on May 20, 2015, including "spinal bifida, sciatica, [a]
stroke [in the] last year, high blood pressure, depression, work and
medical related stress, obesity, and right knee problems.” An
agency consultant for the state reviewed the medical records
Gresham submitted3 and opined that she was not disabled. She
sought reconsideration, and a second agency consultant conducted
an independent review and similarly concluded that Gresham was
not disabled. Accordingly, the agency denied her application at the
reconsideration level.
Thereafter, Gresham requested and received a hearing
before an ALJ. Initially, the ALJ denied her application. Thereafter,
the Appeals Council granted Gresham's request for review and
remanded the case to the ALJ for further development of the
record on certain issues. On remand, the agency's Office of
1999) (declining to reach appellant’s argument that the ALJ should not have
relied on the vocational expert’s testimony because the appellant failed to raise
the argument "before the administrative agency or the district court”).
3 Gresham submitted records from her primary care physician, Dr. David
Krasner, along with records from several other medical entities where she
received treatment for various conditions. These records are discussed in
detail later in the opinion.
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Hearing Operations ordered a second hearing, at which Gresham
proceeded pro se.4
A. The Relevant Medical Evidence
The relevant medical evidence before the ALJ at the time of
the second hearing was as follows.5 Gresham’s medical records
from her primary care physician, Dr. David Krasner, revealed that
she had a history of high blood pressure, obesity, transient ischemic
attacks ("TIA”), and anxiety, and that she was prediabetic.
In December 2014, Gresham experienced pain in her right
knee for several weeks. Imaging of the knee identified no
abnormalities and that the knee was "normal.” On January 19,
2015, Gresham visited “First State Orthopaedics,” complaining of
continued right knee pain. She described the pain, which was
aggravated by physical activity, as "aching, piercing and sharp.”
She also reported a history of left-side sciatica. Dr. Michael Axe
aspirated her knee, gave her an injection to help with the knee pain,
and ordered physical therapy for both her knee pain and sciatica.
Dr. Axe also completed an “ADA Medical Questionnaire” stating
Gresham had leg pain and required a desk job with the
accommodation of being allowed to get up, stretch, and walk
“every hour or two” to relieve the pain. Dr. Axe identified
4 A different ALJ presided over this second hearing.
5 In addition to the medical records, Gresham submitted three letters from her
family, all dated in September 2019, in which they talked about the pain she
experienced and the difficulty she had completing tasks.
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Gresham’s limitations as temporary and he expected the duration
to be six months or less.
On February 5, 2015, at a general medical exam with her
primary care physician, Dr. Krasner, Gresham reported that she felt
“well with minor complaints” and had a “good energy level.” She
denied being in any pain. Dr. Krasner’s exam indicated that her
musculoskeletal system had normal strength and tone.
That same day, Gresham began physical therapy, and she
continued therapy throughout the month of February for a total of
nine sessions. Initially, she reported lower back pain that radiated
down her left side and right knee pain. She also reported difficulty
lifting objects, sitting or standing for more than one hour, and
walking. She indicated that she could perform most of her job
duties and home activities, but pain prevented her from doing the
more physically demanding tasks. At her second, third, and fourth
physical therapy sessions, Gresham reported her back was fine with
no pain and significant improvement in her right knee. At her fifth
and sixth visit, however, she indicated some lower back pain from
sitting. On her seventh visit, she reported her back was feeling
better, but she indicated that she continued to have right knee pain.
At her eighth visit, she reported feeling better and that she believed
she was “ready to go to a gym and continue this on pier] own.” At
her ninth and final visit on March 4, 2015, the progress notes
indicated that “Gresham ha[d] gained range ofmotion and strength
in both of her knees and her complaints of back pain [were]
infrequent.” The progress notes further indicated that she still
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experienced pain with weightbearing activities. Because her back
pain worsened with increased sitting, the therapist recommended
that Gresham rise hourly and do extension exercises, as well as
continue her strengthening work on her own.
Meanwhile, on February 27, 2015, Dr. Axe (from First State
Orthopaedics) completed a Family Medical Leave Act ("FMLA”)
form for Gresham, in which he indicated that she would need to
work on a reduced schedule because of her medical condition.6
However, he left blank the section for estimating the treatment
schedule and did not specify any reduced set of hours Gresham
should work. He also indicated that if Gresham had a flare-up, it
would prevent her from performing her job functions.
On May 4, 2015, Gresham returned to First State
Orthopaedics for a follow-up concerning her right knee. Dr. Axe
found that Gresham's “knee [had] resolved nicely with therapy,"
and that she had good reflexes and no gross instability. He
concluded that her current problem was her back—an issue for
which she would see a different doctor—and that he no longer
needed to see her for the knee issue.
That same day, Gresham saw Dr. Krasner for radiating
"back pain [that] has been occurring in an intermittent pattern for
6 In March 2015, Gresham requested Dr. Krasner’s assistance with FMLA
forms “due to stress at work." At that time, she reported feeling well, sleeping
well, and having good energy levels, but that she also had back and joint pain.
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years.” She also reported fatigue, neck pain and stiffness, back and
joint pain, and paresthesia (tingling/numbness) in her legs. She
indicated that the back pain was "aggravated by bending, twisting,
lifting, sitting, standing and walking,” and was relieved by bed rest,
elevating her legs, taking Tylenol, applying heat or ice, and physical
therapy. Upon a physical examination, Dr. Krasner noted no leg
weakness but observed tenderness, spasms, and decreased range of
motion in "L/S areas” of the spine and tenderness in Gresham's left
hip. He diagnosed her with sciatica and prescribed her physical
therapy. He also noted that Gresham “dedine[d] injections due to
[a history of] spina bifida.” He instructed her to avoid pushing,
pulling, and lifting anything over 10 pounds for the next six
months. Dr. Krasner gave Gresham a sick note, indicating that she
could return to work on May 6, 2015.
Three days later, on May 7, 2015, Dr. Krasner completed an
FMLA form for Gresham, stating that she had "sciatica [and]
difficulty walking,” which had existed from September 1998 to
present, and that these conditions would require absences from
work during flare-ups, limited activity, and bedrest. He noted that
Gresham could not "lift, push or pull objects over 10 [pounds]” and
“may not be able to perform [her] job comfortably during flareups.” He wrote that Gresham’s condition would worsen with "fast
pace or quick [and] sudden physical movement” and that she
should avoid those type of movements during a flare-up. He also
stated that Gresham should not "over exert” herself and should rest
as much as possible during flare-ups, including lying “flat [with]
leg[s] [and] back elevated.” In terms of leave needed from her job,
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Dr. Krasner indicated that she would require intermittent leave as
needed.
On May 20, 2015, Gresham returned to Dr. Krasner for a
“recheck” of her back pain. Gresham reported that the pain in her
lower back had increased in frequency and intensity “due to stress
at work” She maintained that the pain was “aggravated by
bending, twisting, lifting, sitting, standing and walking” and
relieved by bed rest, changing positions, medication, the
application of heat and ice, and both massage and physical therapy.
Dr. Krasner’s examination revealed tenderness, spasm, and
decreased range of motion in the lumbar sacral area. Dr. Krasner
again diagnosed Gresham with sciatica and ordered physical
therapy. He further noted that Gresham indicated that the stress
at work caused her back pain and that she wanted to take “a leave
of absence” until July 8,2015. Dr. Krasner indicated that she should
“see [him] prior to then.”7
Gresham returned to physical therapy on May 27, 2015,
reporting back, left leg, and buttock pain. Gresham attended eight
therapy sessions between May 27, 2015 and July 22, 2015, during
which she indicated she made some progress, although still
7 The next day, Dr. Krasner filled out FMLA paperwork stating that Gresham
would need leave from work until July 18, 2015, due to sciatica and “stress”
and would need “good ergonomics and the freedom to move around during
the work day” once she returned. A few weeks later, Dr. Krasner also
completed short term disability paperwork indicating that Gresham was
temporarily unable to work due to sciatica and stress at work with an expected
return to work date ofJuly 8, 2015.
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experienced some occasional pain, particularly after doing
housework, standing for an extended period of time, and going to
the beach. On her final visit on July 22, 2015, however, Gresham
reported feeling better with no back pain and that her doctor felt
that she was ready to be discharged.
Meanwhile, Gresham saw Dr. Krasner on July 1,2015, for “a
recheck of [sjtress” stemming from her job. At that time, she did
not report any back pain and denied any joint pain or muscle
cramps. Dr. Krasner"s physical examination revealed "mild
tenderness” in the lumbar region.8 Dr. Krasner saw Gresham again
on July 21,2015, for another "recheck of [sjtress.” At that time, his
progress notes indicated that Gresham "stated that ‘she fe[lt]
physically" better, but [she was] still anxious about returning to
work on an emotional level”" and she wanted additional leave until
September 21, 2015.
As noted previously, Gresham applied for DIB benefits on
August 18,2015. That same day, she saw Dr. Krasner complaining
of back pain. At that time, Gresham self-reported that she had
spina bifida and that she was diagnosed with spina bifida in 19881989 when she was 21 years old. Dr. Krasner’s notes indicated that
the medical files related to that diagnosis had been requested in
8 The next day, Dr. Krasner completed additional FMLA paperwork indicating
that Gresham was temporarily unable to work due to sciatica, stress at work,
and a "sprain/strain" in the lumbar region of her back. He indicated that she
would be incapacitated until August 2,2015, and that she would require “good
ergonomics” and “the freedom to move around during the work day once she
retum[ed]” to work.
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order to confirm the diagnosis. Dr. Krasner also ordered x-rays of
Gresham's spine. An x-ray showed Gresham’s spine was of normal
height and alignment. No "vertebral anomalies]” were present.
Mild degenerative changes were noted in the lumbar region, as
well as a "questionable small linear lucency at the midline Si
[vertebrae] possibly from artifact or from spina bifida occulta,
which is typically of no clinical significance.”9
Gresham returned to Dr. Krasner’s office on September 15,
2015, reporting back, joint, hip, and muscle pain, as well as “all over
body pain.” Dr. Krasner diagnosed her with "stress at work,” and
his progress notes indicated that Gresham expressed a desire not to
return to work.10 In November and December 2015, Gresham
returned to Dr. Krasner for assistance in completing disability
forms and to further discuss her back pain, hip pain, and leg
9 Shortly thereafter, Dr. Krasner completed updated short-term disability
paperwork stating that Gresham’s restrictions “[were] psychological not
physical.”
10 That same day, Dr. Krasner wrote a letter certifying that Gresham had "been
under [his] care for work-related stress, and it [was his] opinion that she could
not return to work . . . until further notice.” He stated that "[h]er condition
[was] permanent.” Thereafter, in October 2015, Dr. Krasner completed more
short-term disability paperwork stating that Gresham had ongoing sciatica,
that was aggravated by work stressors; that she had been diagnosed with spina
bifida and therefore surgery was not suggested; and that she could not do
extended sitting, walking, or standing. Although Dr. Krasner saw Gresham in
October 2015 for other medical related issues, she did not report any back pain,
other types of pain, or stress at her October visit.
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weakness.11 While Dr. Krasners treatment notes measured her
vitals, they did not discuss an examination or make any objective
findings.12
Gresham's employer, the State of Delaware, terminated her
employment in January 2016. The State also denied her
unemployment benefits, as she did not certify that she was ready
and able to work.
In February 2016, Dr. Krasner opined that Gresham could
return to work part-time with limitations. Specifically, Dr. Krasner
stated that Gresham could work for no more than 25-hours per
week with no lifting, no bending, no squatting, no pulling/pushing
heavy items, no steps, no extended sitting, no extended standing,
no extended driving or traveling, and "flexibility to accommodate
[her] condition as needed.”
That same month, Gresham saw Dr. David Sowa, at First
State Orthopaedics for a mass on her left wrist causing wrist pain,
as well as radiating neck pain. An x-ray of her cervical spine
showed a small bone spur at one vertebra, but "no significant
11 At her December visit, Gresham also complained of headaches and neck
pain.
12 At that time, Dr. Krasner completed updated short-term disability forms for
Gresham. Notably, Dr. Krasner opined that Gresham's "sciatica [was] not
preventing her from returning to work. It's the stress.” Gresham also
obtained a note from psychologist, Dr. Mary Kennedy, who had seen Gresham
four times between April and November 2015. She opined that due to
Gresham's psychological distress and self-reported "continuing medical
problems,” Gresham should not return to work.
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abnormalities." She received a referral for physical therapy for the
neck pain. At a follow-up visit in April 2016, following additional
testing, Dr. Sowa noted that Gresham had "persistent
deQuervain's tenosynovitis of her left wrist" and scheduled out
patient surgery for the wrist.13 He referred her to a spine center for
her neck issues.
In March 2016, in connection with her DIB application,
Gresham was examined by SSA’s consultative examiner, Dr. Irwin
Lifrak. At that time, Gresham's chief complaints were back pain
radiating to both of her hips and legs, hypertension, neck pain
radiating to both of her shoulders and arms, and depression. Dr.
Lifrak found that Gresham was adequately developed and
nourished, was in no acute distress, and walked without an assistive
device "with a minimal degree of limp favoring the left [side]." Her
extremities, including her legs, had full muscle strength and tone,
and intact reflexes and sensation, but she had paravertebral spasms
and reduced range of motion in her lumbar spine and hips. Dr.
Lifrak's diagnostic impression was that Gresham had
"[degenerative joint disease” with possible disc damage,
hypertension that was under control at the time of the
examination, and depression. He determined that within an eighthour day with customary breaks and without any assistive device
Gresham could perform activities requiring her to walk, either
13 Following the wrist surgery, Gresham had limited range of motion in her
left wrist and sensitivity at the scar site. Dr. Sowa recommended hand
therapy.
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indoors or outdoors; climb stairs; sit for a total of six hours out of
an eight-hour day; stand for a total period of six hours out of an
eight-hour day; and lift weights of up to ten pounds with each hand
on a regular basis.
In September 2016, Gresham returned to Dr. Krasner,
complaining of back pain. His notes indicated that Gresham stated
that she was unable to perform her job duties due to the pain and
she requested that Dr. Krasner give her a letter for her work. Dr.
Krasner wrote a formal medical letter, stating that Gresham was
under his care for sciatica, that she should "avoid excessive
bending, squatting, sitting, and standing,” and that she should not
lift, push, or pull more than 20 pounds. Dr. Krasner’s notes were
similar when Gresham returned in February 2017, complaining of
worsening back pain, pain in her neck, left hip, and left wrist, and
requesting Dr. Krasner "certify that she [was] unable to work.” Dr.
Krasner ordered an MRI of Gresham’s lumbar spine, an x-ray of her
cervical spine, and physical therapy. He also completed paperwork
stating that Gresham was expected to be unable to work for 6 to 9
months due to her sciatica, cervical pain, and lumbar pain. The xray of Gresham’s cervical spine revealed some straightening, which
was "nonspecific” and "often associated with muscle spasms.” No
other abnormalities were observed. The MRI of the spine revealed
that the alignment was normal, but there was mild joint
arthropathy in the lumbar region.
In March 2017, Gresham resumed physical therapy,
reporting her back pain level as a 7 out of 10, and a 10 out of 10 on
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bad days. Although she continued to report some back pain
throughout the course of her six-week treatment, she self-reported
some improvements in her back pain and demonstrated improved
functionality.
On April 26, 2017, Gresham returned to Dr. Krasner for a
recheck of her back pain and stress. In terms of her back pain,
Gresham indicated that physical therapy helped the pain (which
she rated as a 3 out of 10) and that she was interested in getting a
transcutaneous electrical nerve stimulation ("TENS”) unit, which
is a medical device that sends low-voltage electric currents to
nerves and helps with pain. She reported that her stress, however,
had been increasing. Dr. Krasner again diagnosed her with sciatica
and prescribed additional physical therapy.14
Gresham returned to physical therapy a few months later in
July 2017, reporting a resting back pain level of 3 out of 10, and a
10 out of 10 with physical activity. During the course of her
treatment between July 27 and October 9,2017, Gresham gradually
14 Approximately a week later, Gresham went to the emergency room for left
hip and groin pain, but imaging of her pelvis and left hip revealed "no evidence
of acute fracture or dislocation,” and "no evidence of any arthritic changes.”
The emergency room physician noted drat Gresham's pain was “suggestive of
suspect musculoskeletal etiology," such as a "muscle strain, tendinitis, or
injury” and 'less consistent with sciatica or [a] lumbar source.” A few days
after her emergency room visit, Gresham returned to Dr. Krasner for the left
hip pain, rating it as a 5 out of 10. Dr. Krasner's notes indicated that, at that
time, Gresham indicated that she “want[e]d to hold off on [physical therapy.”
Dr. Krasner referred her to an orthopedic surgeon for the hip pain and
prescribed some medication.
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reported improvement in her symptoms. Although at times
Gresham indicated she felt worse, particularly after weekend
activities such as "walking in Ocean City" or doing "a lot of5
shopping, cooking, and cleaning.
The physical therapist’s
assessments indicated that Gresham showed an improvement in
her range of motion and functional limitations.
On September 6, 2017, Gresham visited Dr. Anne Mack,
M.D., based on a referral from Dr. Krasner for lower back pain and
hip pain, which she rated as an 8 out of 10.15 On examination, Dr.
Mack noted that Gresham had a reduced range of motion in the
cervical and lumbosacral areas of the spine, and a normal range of
motion in the thoracic area of the spine. Gresham also had full
range of motion and strength in her extremities. Dr. Mack
recommended that Gresham continue with physical therapy.
On September 18, Dr. Krasner completed a document
entitled "Treating Source Statement—Physical Conditions" related
to Gresham’s disability claim in which he opined that Gresham
likely would be off task for more than 25% of a typical workday
and miss more than four days of work per month as a result of her
ailments, which included "sciatica, severe stress, left hip pain, spinal
dysplasia, [and] TLA." Dr. Krasner further opined that Gresham
could continuously lift or carry items lighter than 10 pounds; could
frequently lift or carry items that were 10 pounds; could never lift
or carry items 20 pounds or heavier; could sit, stand, and walk for
1S Notably, on this same day, Gresham had a physical therapy visit at which
she reported “feeling better” and that he was “starting to feel better overall.”
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only 1 hour in an 8-hour workday; required the option to sit /stand
at will; and occasionally required the use of a cane or other assistive
device. He indicated that Gresham could occasionally reach
overhead and push/pull; frequently reach in all other directions;
continuously perform handling, fingering, and feeling;
continuously use foot controls; never balance, crawl, or climb
ladders; rarely climb stairs and ramps, stoop, kneel, or crouch; and
could frequently rotate her head and neck.
Turning to
environmental limitations, Dr. Krasner stated that Gresham could
never be around unprotected heights, moving mechanical parts,
dust/odors/fumes/pulmonary irritants, and extreme cold;
occasionally be around humidity, wetness, extreme heat, and
vibrations; and could frequently operate a vehicle.
On October 6, 2017, Gresham returned to Dr. Mack,
reporting lower back and hip pain with radiating pain down her
legs. She described the pain as “moderate” and “constant,” rating
it as a 6 out of 10. Upon examination, Gresham again had
decreased range of motion in her cervical and lumbosacral areas of
the spine and a full range of motion in her extremities. She also
exhibited pain in her left ankle with certain movements. Dr. Mack
ordered an x-ray of the ankle, which did not reveal any abnormal
findings. She recommended that Gresham return for a recheck in
approximately 6 weeks.
Three days later, on October 9, 2017, Gresham completed
her last physical therapy visit. During this visit, Gresham reported
that she felt "about 40% better,” and she rated her back pain a 2 out
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of 10 at rest, and a 7 out of 10 during activity. The physical therapist
reported that Gresham had "shown objective improvement with
lumbar [range ofmotion] and subjectively reported] improvement
with functional activities and independent management of
symptoms. She [also] presented] with improvement in gait
mechanics with no noted deficits pre and post session.”
Two days later, Gresham saw Dr. Krasner for a pre-op
evaluation related to a scheduled hysterectomy.16 Dr. Krasner
noted that Gresham reported "feel[ing] well with minor
complaints” and that she was not currently in pain. As part of the
physical examination, he noted that her gait and posture were
normal and that she was not in any acute distress.
In March 2018, Dr. Mack ordered an MRI of Gresham’s
lumbar spine. The MRI indicated that Gresham had “[l]ower
lumbar degenerative disc disease and facet arthritis” with
"moderate to severe bilateral foraminal stenosis” and a disc bulge
abutting a nerve root in the lower lumbosacral region of the spine.
In April 2018, shortly before her hysterectomy, Gresham
returned to Dr. Krasner’s office seeking help with completing
disability related forms. At that time, she reported "feel[ing] well
16 Gresham needed a hysterectomy to resolve issues related to numerous
fibroids, which doctors also thought could possibly be contributing to her back
pain. The surgery, however, was delayed, and Gresham had a second pre-op
evaluation performed in March 2018, that included nearly identical findings.
The medical records indicate that the hysterectomy was performed
successfully in mid-April 2018.
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with no complaints,” "sleeping well,” and "ha[ving] [a] good
energy level.” She denied currently being in pain. Gresham
indicated to the nurse practitioner in Dr. Krasner's office that she
"needed [a] permanent disability form for her back” and that Dr.
Mack told her that the MRI revealed arthritis in her neck. The
nurse practitioner's physical examination indicated that Gresham
had full range of motion in her neck with some discomfort. She
instructed Gresham to consult with Dr. Mack about the disability
forms.
In October 2018, Gresham again visited Dr. Mack for pain in
her lower back, hip, and left knee. She reported the back pain as
an 8 out of 10. On examination, Dr. Mack noted a reduced range
of motion in Gresham's cervical and lumbar spine, an antalgic gait,
evidence of swelling in the knee, and a full range of motion in the
ankle (but accompanied by pain), but otherwise no abnormalities,
noting full strength in all muscles.17 She ordered a CT scan of
Gresham’s lumbar spine, x-rays of her left knee and right foot, and
a straight cane due to knee pain. The CT scan confirmed
"[degenerative changes” of Gresham’s lumbar spine at two levels.
In June 2019, Gresham had an operation to treat a hernia. In
August 2019, Dr. Wynn, the surgeon who treated Gresham for the
hernia, opined that Gresham could not return to work until
September 23, 2019, and when she returned she could not push,
17 Subsequent examinations performed by Dr. Mack in November 2018,
August 2019, September 2019, and October 2019 contained substantially
similar results to that of the October 2018 examination.
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pull, or lift anything over 10 pounds. Dr. Wynn lifted these
restrictions in late September 2019, stating that Gresham was
allowed "to perform normal duties up to her capacity."
In October 2019, an unnamed individual at Thrive Physical
Therapy completed a one-time “Functional Assessment Report”
for Gresham's disability application. The report indicated that
Gresham experienced right knee and lower back pain with all of
the physical function tests, but that it was difficult to fully assess
her abilities and strengths or barriers to her ability to work due to
restrictions that she was under from hernia surgery. In terms of
Gresham's ability to work, the report indicated that the “[o]nly
option that would work per discussion with client is part time light
duty with a flexible schedule that [could] allow for frequent call
outs for doctors visits or if having a bad day with pain or
limitations.” The therapist recommended that Gresham could
perform "[p]art time light duty” work. The report further opined
that Gresham could occasionally stand or walk; could constantly
sit; rarely lift any weight less than 10 pounds; never lift any weight
more than 10 pounds; frequently use her arms and hands; would
never need to recline or elevate feet; could never crouch or climb
a ladder; could rarely bend, walk, kneel or crouch; and occasionally
stand, sit, or work while standing.
Finally, records indicated that in November 2019, Gresham
applied for a handicap parking placard, and Lindsay Kelly, a family
nurse practitioner, completed the necessary forms, certifying that
Gresham could not walk more than 200 feet without stopping for
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rest and required a cane as an assistive device, and that Gresham
had no prognosis for improvement.
B. Testimony Before the ALJ
At the second hearing on her disability application, Gresham
provided testimony concerning her prior occupations and her
physical ailments and associated pain. Regarding her prior
occupations, she previously worked as a behavioral therapist for
mentally and physically disabled residents in a group home. Next,
she worked as a preschool teacher, which involved writing up
various lesson plans and reports. Then she worked as a customer
service representative in the collections department of a financial
company for a year, which involved mainly "sit down" work.
Finally, she worked as an administrator (and later as the purchasing
services coordinator) in the procurement unit of a state agency in
Delaware, where she was responsible for a wide variety of
administrative tasks and frequently traveled between offices. In
this role, she was responsible for handling phones, transporting
large boxes of documents weighing over 20 pounds, and writing
and editing contracts.
Turning to her impairments, Gresham testified that, in May
2015, she became disabled after she experienced “a stress
breakdown and the pain became intolerant to where [she]
could... barely move [her] left leg." She also suffered "memory
setbacks” around this time. Gresham explained that she had been
using a cane prescribed by Dr. Mack as a mobility assistive device
for the last year. She stated that she lived with her husband and
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her two daughters, ages 26 and 17, and that they helped her cook
and do things around the house like cleaning and laundry. She
explained that sometimes she gets "the tinglys” in her legs and that
pain medications, her TENS unit, physical therapy, massages and a
heating pad helps. She confirmed that she had never had any
surgery on her back and that she was still recovering from the
hernia repair.
When asked to describe the problems that have prevented
her from working since 2015, Gresham stated it was: her constant
back, right knee, and ankle pain; hip pain for which she went to the
emergency room in 2017; her hysterectomy, during which
cancerous cells were discovered and removed successfully; neck
issues that developed in 2018; shoulder pain; and her hernia. She
explained that, in 2016, she felt capable of at least doing part-time
work, and she completed 200 job applications, but was unable to
find work. She stated that she also suffers from TLA. strokes, high
blood pressure, and diabetes.
A vocational expert ("VE”) then testified in response to three
hypotheticals from the ALJ. The ALJ's first hypothetical involved
an individual of Gresham's age and skills who could occasionally
lift 20 pounds; frequendy lift 10 pounds; stand or walk for six hours
out of an eight-hour workday; sit for six hours out of an eight-hour
workday; frequendy climb ramps and stairs; occasionally climb
ladders, ropes, and scaffolds; frequendy balance; occasionally
stoop, kneel, crouch, and crawl; and tolerate occasional exposure
to vibration and hazards. The VE testified that a person with these
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limitations could perform three of Gresham's prior jobs, namely,
her work as a purchasing agent, secretary, and collection clerk
Additionally, the VE testified that the hypothetical individual could
work as a file clerk, as a general clerk, or in a wide range of
sedentary positions available in the national economy.
The ALJ next reduced the lift limit to 10 pounds and the time
standing or walking to two hours out of an eight-hour day, keeping
the remainder of the limitations the same. The VE testified that
such an individual could perform two of Gresham's prior jobs,
namely, that of a collection clerk and secretary. The VE further
testified that such limitations would limit an individual to
sedentary work, identifying a data entry clerk, an information
clerk, and a data clerk as additional positions such a person could
fill.
For the third and final hypothetical, the ALJ added to the
limitations that the individual would require a cane to balance and
would be off-task 25 percent of the workday. The VE testified that
such an individual could not perform any of Gresham's prior
positions or any other position in the workforce. The ALJ then
removed the limitation of being off-task for 25 percent of the
workday, but still required the use of a cane. The VE testified that
such an individual would be able to perform the same positions
identified in the second hypothetical.
Finally , at the request of Gresham, the VE next considered
an individual With the same limitations who needed to miss work
on average four days a month due to an ailment or to see a doctor.
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The VE testified that such a limitation would be work preclusive,
even iffurther limited to only missing part of the day once a month
for a doctor’s appointment.
Gresham then explained that “it’s not that [she] can’t do
work,” she just needs flexibility. The ALJ explained that because
Gresham had various ailments, he was going to have an
independent doctor review Gresham’s complete file, look at
everything collectively, and then write up a report. The ALJ would
then review that report along with all the other evidence in the
record and make a determination.
C. Post-Hearing Evidence
In February 2020, at the request of the ALJ, Dr. Seth Meltzer
reviewed Gresham’s file. Dr. Meltzer identified Gresham as
suffering from the following impairments: sciatica, DeQuervian’s
tenosynovitis, stroke, and hypertension. He then explained that
none of these impairments met or equaled any impairment in the
agency’s Listing of Impairments.18
He next opined that, with her ailments, Gresham could
continuously lift or carry up to 10 pounds; frequently lift or carry
up to 20 pounds; occasionally carry, but never lift between 20 and
50 pounds; sit two hours at a time and up to four hours per
18 In particular, he explained that Gresham’s back issues did not meet the
listing of impairments for disorders of the spine because although the MRI
showed evidence of facet arthritis, degenerative disc disease, and stenosis in
the lumbar region, "there [was] no evidence of neuroanatomic motor loss,
motor weakness, loss of reflex, or positive SLR.”
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workday; stand and walk for 30 minutes at a time and up to two
hours per workday. Dr. Meltzer further opined that Gresham
could frequently reach, handle, finger, feel, push, and pull;
continuously use foot controls; occasionally climb stairs, ramps,
ladders, and scaffolds; frequently balance; never stoop, kneel,
crouch, or crawl; occasionally be exposed to heights and moving
mechanical parts; and be exposed to very loud noises. Meltzer
cited to specific documents in the record in support ofhis findings.19
Following the second hearing, Gresham submitted
additional medical evidence, which included a cardiologist report
from January 2020 that stated that Gresham reported feeling great
with no back or joint pain. Upon examining Gresham, the
cardiologist reported that her extremities, motor strength, and
reflexes were normal. And a February 2020 "medical statement of
ability to do work-related activities” from a nurse practitioner in
Dr. Krasner’s office, indicated that, due to a history of “spinal
dysplasia, TIA[,] [and] arthritis,” Gresham had the following
physical limitations: she could frequently lift or carry up to 10
19 After Dr. Meltzer completed his report, the ALJ requested that the VE
complete an updated interrogatory on Gresham’s ability to work. The
interrogatory asked the VE to consider whether a hypothetical person of
Gresham’s age, education, and skill, could perform any of her prior positions
or other positions in the workplace if they had limitations identical to those
found by Dr. Meltzer. The VE certified that such an individual could perform
two of the Gresham’s prior positions, namely, a purchasing agent and an
administrative assistant. The VE also certified that such an individual could
perform as a general clerk, administrative clerk, purchasing clerk, receptionist,
payroll clerk, router, fingerprint clerk, or microfilm mounter.
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pounds; occasionally lift or carry up to 20 pounds; sit for one hour
at a time and up to eight hours a day; stand for less than 5 minutes
at a time and up to 1 hour in a day; walk for less than 30 minutes
and up to 1 hour in a day; required a cane to ambulate; could
occasionally reach with her hands; could continuously handle,
finger, feel, and push /pull with each hand; could continuously
operate foot controls; could never climb stairs, ramps, ladders, or
scaffolds; could never balance, stoop, kneel, crouch, or crawl; could
never be exposed to unprotected heights, moving mechanical
parts, humidity /wetness, dust, odors, fumes, pulmonary gases,
extreme cold, extreme heat, or vibrations; could occasionally
operate a motor vehicle; and could be exposed to moderate noise
levels. The nurse practitioner further opined that Gresham's
impairments met or equaled an impairment on the agency's I -isting
of Impairments, though she did not specify which one or ones were
met and did not specify any evidence that supported this finding.
D. The ALJ’s Decision
Employing the SSA's five-step sequential evaluation process
for determining whether a claimant is disabled, the ALJ denied
Gresham’s application.20 The ALJ found that Gresham had not
” The evaluation process involves the following five determination steps:
(1) whether the claimant is engaged in substantial gainful activity; (2) if not,
whether she "has a severe impairment or combination of impairments”; (3) if
so, whether that impairment, or combination ofimpairments, meets or equals
the medical listings in the regulations; (4) if not, whether the claimant can
perform her past relevant work in light of her RFC; and (5) if not, whether,
based on her age, education, and work experience, she can perform other
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engaged in substantial gainful activity since May 20, 2015, and was
severely impaired from "obesity, degenerative disc disease of the
lumbar spine, and left DeQuervain’s tenosynovitis.” At step three,
the ALJ determined that Gresham’s impairments did not meet or
medically equal any listed impairment under the relevant Social
Security regulations.21 At step four, the ALJ then determined that
Gresham had:
the residual functional capacity to perform light work
as defined in 20 CFR [§] 404.1567(b) except she can lift
and carry 20 pounds frequendy and 50 pounds
occasionally, sit for 2 hours at a time for a total of 4
hours out of an 8-hour workday, stand 30 minutes at
a time for a total of 2 hours out of an 8-hour workday,
and walk 30 minutes at a time for a total of 2 hours in
an 8-hour workday. The claimant can frequently
reach in all directions bilaterally with the upper
extremities. She can occasionally climb stairs and
ramps, occasionally climb ladders or scaffolds,
frequendy balance, and never stoop, kneel, crouch, or
crawl. The claimant can tolerate occasional exposure
to unprotected heights and moving mechanical parts.
She can tolerate very loud noise.
work found in the national economy. Winschel v. Comm'r ofSoc. Sec., 631 F.3d
1176, 1178 (11th Cir. 2011).
21A claimant bears the burden of showing her impairments meet or equal a
listing. Barronv. Sullivan, 924 F.2d 227, 229 (11th Cir. 1991).
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In reaching this conclusion, the ALJ found that Gresham's
medically determinable impairments could reasonably be expected
to cause the alleged symptoms, but that Gresham’s "statements
concerning the intensity, persistence and limiting effects of [her]
symptoms [were] not entirely consistent with the medical evidence
and other evidence in the record.” For instance, the ALJ noted that
the objective evidence in the record indicated that Gresham’s back
issues improved with physical therapy and she frequently reported
feeling better, such that Gresham’s "allegations of disabling
symptoms and limitations are inconsistent with and unsupported
by the evidence.”
As for the medical opinion evidence, the ALJ gave little to
no weight to the opinions provided by Dr. Krasner, Dr. Wynn, Dr.
Lifrak, and the Thrive Physical Therapy Functional Assessment
Report. The ALJ explained that Dr. Krasner’s opinions as to
Gresham’s limitations and her inability to work were not
supported by the objective medical evidence or constituted
findings on an issue reserved to the Commissioner. Similarly, "the
evidence as a whole, including the physical examination findings,
[did] not support such restrictive limitations” as those indicated in
Dr. Wynn’s medical opinion. The ALJ explained that he gave little
weight to the agency examiner Dr. Lifrak’s 2016 consultative
examination because "the weight of the evidence, including the
mostly normal strength findings, do not support limiting lifting and
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by Thrive "because the examiner was unable to fully assess
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[Gresham's] ability” due to restrictions that Gresham was still
under after her hernia surgery. On the other hand, the ALJ gave
great weight to Dr. Meltzer's opinion, because he had the
opportunity to review Gresham's entire file and the RFC he
provided (which the ALJ adopted) was supported by the record.
In light of Gresham’s RFC, the ALJ determined that
Gresham could perform past relevant work as a purchasing agent
and an administrative assistant. Alternatively, the ALJ proceeded
to step five and determined that Gresham could perform other jobs
in the national economy such as a router, fingerprint clerk, and
microfilm mounter. Consequently, the ALJ found that Gresham
was not disabled.
Gresham requested discretionary review of the ALJ’s
decision by the SSA Appeals Council, and her request was denied.
Gresham then obtained counsel and filed a complaint in the district,
court, raising two issues: (1) whether the ALJ failed to properly
evaluate and weigh the medical opinion evidence—in particular
the opinions of Dr. Krasner, Dr. Wynn, and Dr. Liffak, and the
Thrive Physical Therapy Functional Assessment—as required
under "SSA policy and Eleventh Circuit precedent”; and
(2) whether the ALJ and Appeals Council judges were properly
appointed, and, if not, whether remand was necessary. A
magistrate judge, acting on behalf of the district court, affirmed the
ALJ’s decision and rejected Gresham's appointments challenge.
Gresham, proceeding pro se, appealed the decision.
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Standard of Review
"When, as in this case, the ALJ denies benefits and the
[Appeals Council] denies review, we review the ALJ's decision as
the Commissioner's final decision.” Doughty v. Apfel, 245 F.3d 1274,
1278 (11th Cir. 2001). "[W]e review de novo the legal principles
upon which the Commissioner's decision is based,” and "we
review the resulting decision only to determine whether it is
supported by substantial evidence.” Moore v. Barnhart, 405 F.3d
1208, 1211 (11th Cir. 2005); see also Simon v. Comm’r, Soc. Sec.
Admin., 7 F.4th 1094,1103 (11th Cir. 2021) ("Substantial evidence is
less than a preponderance, and thus we must affirm an ALJ's
decision even in cases where a greater portion of the record seems
to weigh against it.” (quotation omitted)). "We may not decide the
facts anew, reweigh the evidence, or substitute our judgment for
that of the [Commissioner].” Winschel v. Comm’r of Soc. Sec., 631
F.3d 1176, 1178 (11th Cir. 2011) (alteration in original) (quotation
omitted). "Even if the evidence preponderates against the
Commissioner's findings, we must affirm if the decision reached is
supported by substantial evidence.” Crawford v. Comm’r ofSoc. Sec.,
363 F.3d 1155,1158-59 (11th Cir. 2004) (quotation omitted).
in.
Discussion
Gresham challenges the ALJ’s weighing of medical opinions,
asserting that the ALJ erred in giving more weight to Dr. Meltzer's
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opinion than the "independent medical professional experts who
actually worked with [her].”22
To obtain social security disability benefits, die applicant
must prove she is disabled. See Barnhart v. Thomas, 540 U.S. 20, 21
(2003). “Disability” is defined as the "inability to engage in 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 12 months.” 42 U.S.C.
§ 423(d)(1)(A). The impairment must be "of such severity that [the
person] is not only unable to do [her] previous work but cannot,
considering [her] age, education, and work experience, engage in
any other kind of substantial gainful work which exists in the
national economy.” Id. § 423(d)(2)(A).
When making the disability assessment, the ALJ must give
special attention to the medical opinions, particularly those of the
treating physician. SSA regulations in force at the time Gresham
filed her application required an ALJ to give "controlling weight”
to a treating physician’s opinion if it was "well-supported by
medically acceptable clinical and laboratory diagnostic techniques”
and "not inconsistent with the other substantial evidence in [the]
22 Gresham does not state to which of the treating "independent medical
professional experts” she is referring. Nevertheless, we assume for purposes
of this opinion that she is referring to the same treating physician opinions that
she took issue with in the district court, namely, those of Dr. Krasner, Dr.
Wynn, and Dr. Lifrak, and the Thrive Physical Therapy Functional
Assessment. Therefore, we focus on those opinions.
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case record.” 20 C.F.R. § 404.1527(c)(2),23 Good cause to discount
a treating physician’s opinion exists "when the: (1) treating
physician’s opinion was not bolstered by the evidence; (2) evidence
supported a contrary finding; or (3) treating physician’s opinion
was conclusory or inconsistent with the doctor’s own medical
records.” Winschel, 631 F.3d at 1179 (quotation omitted).
"[T]he ALJ must state with particularity the weight given to
different medical opinions and the reasons therefor.” Id. There are
no magic words to state with particularity the weight given to the
medical opinions. Rather, the ALJ must "state with at least some
measure of clarity the grounds for his decision.” Id. (quotation
omitted). "We will not second guess the ALJ about the weight the
treating physician’s opinion deserves so long as [the ALJ] articulates
a specific justification for it.” Hunter v. Soc. Sec. Admin., Comm'r, 808
F.3d 818, 823 (11th Cir. 2015).
State agency medical consultants, like Dr. Lifrak and Dr.
Meltzer, are considered experts in social security disability
evaluations, and the ALJ must consider and assign weight to their
opinions in the same manner as other medical sources. See 20
C.F.R. §§ 404.1527(e), 404.1513a(b). The weight to be given to a
non-examining physician’s opinion depends on, among other
considerations, the extent to which it is consistent with other
23 In 2017, the SSA amended its regulations and removed the "controlling
weight” requirement for all applications filed after March 27, 2017. See 20
C.F.R. §§ 404.1527, 404.1520c. Because Gresham filed her DIB application in
2015, the former regulations apply.
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evidence. See id. § 404.1527(c)(4). When reviewing the report of a
consultative examiner, the ALJ considers whether the report
"provides evidence [that] serves as an adequate basis for
decision-making,” "is internally consistent,” and “is consistent with
the other information available.” Id. § 404.1519p(a)(l)-(3).
In this case, the ALJ provided good cause for not giving
controlling weight to the opinions of Dr. Krasner, Dr. Wynn, Dr.
Liffak, and the functional assessment prepared by Thrive Physical
Therapy. For instance, the ALJ explained that he gave litde to no
weight to Dr. Krasner s numerous opinions between 2015 and 2020
because Dr. Krasner s opinions as to Gresham's limitations and her
inability to work were not supported by the objective medical
evidence. The ALJ’s conclusion is reinforced by the record. Dr.
Krasner s opinions were not supported by many of the objective
medical findings, including the physical therapy progress reports.
Furthermore, although Dr. Krasner opined in 2020 that Gresham
had impairments that met the agency’s Listing of Impairments and
was therefore disabled, a medical source’s opinion that a claimant
is "disabled” or “unable to work” is not dispositive of a disability
claim because that determination is reserved to the agency. 20
C.F.R. § 404.1527(d)(1); Walkerv. Soc. Sec. Admin., Comm’r, 987 F.3d
1333, 1339 (11th Cir. 2021).
Turning to the opinions of Dr. Wynn, the surgeon who
treated Gresham for her hernia, the ALJ explained that he gave
limited weight to Dr. Wynn’s opinion—namely, that Gresham was
unable to work between August and September 2019 and that
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Gresham should be restricted from pushing, pulling, prolonged
sitting, standing, or walking, and lifting more than 10 pounds—
because the evidence as a whole did not support these restrictive
limitations. Similarly, the ALJ explained that he gave no weight to
Dr. Wynn's opinion that, as ofSeptember 23,2019, Gresham could
perform her normal duties “up to her capacity” because the
opinion provided no specific functional limitations. Where, as
here, the ALJ provides a specific justification for affording lesser
weight or otherwise discounting a treating physician’s opinion, we
will not second guess the ALJ’s decision. See Hunter, 808 F.3d at
823.
Next, the ALJ provided good cause for giving only limited
weight to the opinion of the consulting doctor, Dr. T -ifrak, who
opined in 2016 that Gresham could lift or carry weights of up to 10
pounds and could perform activities requiring her to walk, either
indoors or outdoors; climb stairs; sit for a total of six hours out of
an eight-hour day; stand for a total period of six hours out of an
eight-hour day.24 Specifically, the ALJ found that the lift and carry
capacity proposed by Liffak was unsupported by the mostly
normal strength findings in the medical records. The ALJ’s
statement is supported by the collective medical evidence and
24 Notably, aside from the lift/carry restriction, Dr. Lifrak’s restrictions were
less restrictive than those found by the ALJ. Thus, even if the ALJ had given
Dr. Lifrak's opinion controlling weight, it would not have changed the
outcome.
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provides good cause for giving only limited weight to Dr. Lifrak’s
opinion.
Likewise, the ALJ explained that he gave limited weight to
the Thrive Physical Therapy Functional Assessment Report which
limited Gresham to part-time light duty work with a flexible
schedule because the unidentified examiner indicated that he or
she was unable to fully assess Gresham’s abilities and limitations
due to restrictions that Gresham was still under from her hernia
surgery. The ALJ’s statement provides good cause for giving the
assessment limited weight, and is consistent with the examiner’s
statement in the report.
See Winschel, 631 F.3d at 1179.
Furthermore, the assessment was prepared for purposes of
Gresham’s disability application, and, therefore, it was not a
“treating source” and not entitled to controlling weight. See 20
C.F.R. § 404.1527(a)(2) ("We will not consider an acceptable
medical source to be your treating source if your relationship with
the source is not based on your medical need for treatment or
evaluation, but solely on your need to obtain a report in support of
your claim for disability.”).
Finally, the ALJ explained that he gave great weight to Dr.
Meltzer’s opinion because Dr. Meltzer “had the opportunity to
review [Gresham’s] entire file” and he provided an RFC supported
by the objective medical evidence in the record. The ALJ’s
statement is supported by substantial evidence in the record.
Accordingly, the ALJ provided specific justifications for
giving less than controlling weight to Gresham’s the challenged
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opinions and for giving greater weight to Dr. Meltzer s opinion.
Thus, the ALJ satisfied the good cause standard, and we will not
second guess the ALJTs decision. See Hunter, 808 F.3d at 823; see also
Crawford, 363 F.3d at 1158-59 (“Even if the evidence preponderates
against the Commissioner s findings, we must affirm if the decision
reached is supported by substantial evidence.”
(quotation
omitted)). Consequently, we affirm.
AFFIRMED.
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Appendix F
3tt
33nikit States (ffmtrf of
3fnr tl}£ Itletantfi Circuit
No. 22-13807
ELISHA L. GRESHAM,
Plaintiff-Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
Appeal from the United States District Court
for the Middle District of Florida
DC. Docket No. 8:21-cv-00601-MRM
Before Wilson Jordan, and Branch, Circuit Judges.
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PER CURIAM:
The "Motion for Rehearing,” construed as a Petition for
Panel Rehearing, filed by the Appellant is DENIED.
USCA11 Case: 22-13807
Document: 26-1
Date Filed: 12/14/2023
Page: 1 of 2
3rt tI|E
Mxixhb States Court of
jfor tljt Utlelrniffi Ctrcittl’
No. 22-13807
ELISHA L. GRESHAM,
Plaintiff-Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:21-cv-00601-MRM
JUDGMENT
ED AS MANDATE 12/14/2023
USCA11 Case: 22-13807
Document: 26-1
Date Filed: 12/14/2023
Page: 2 of 2
22-13807
2
It is hereby ordered, adjudged, and decreed that the opinion is
sued on this date in this appeal is entered as the judgment of this
Court.
Entered: November 7, 2023
For the Court: David J. Smith, Clerk of Court
60 AS MANDATE 12/14/2023
Case 8:21-cv-00601-MRM Document 25 Filed 09/06/22 Page 1 of 32 PagelD 1980
Appendix!)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ELISHA L. GRESHAM,
Plaintiff',
v.
Case No.: 8:21-cv-601-MRM
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
OPINION AND ORDER
Plaintiff Elisha L. Gresham filed a Complaint on March 16,2021. (Doc. 1).
Plaintiff seeks judicial review of the final decision of the Commissioner of the Social
Security Administration (“SSA”) denying her claim for a period of disability and
disability insurance benefits. The Commissioner filed the transcript of the
administrative proceedings (hereinafter referred to as “Tr.” followed by the
appropriate page number), and the parties filed a joint memorandum detailing their
respective positions. (Doc. 22) . For the reasons set forth herein, the decision of the
Commissioner is AFFIRMED pursuant to § 205(g) of the Social Security Act, 42
U.S.C. § 405(g).
I.
Social Security Act Eligibility
The law defines disability as the inability to do any substantial gainful activity
by reason of any medically determinable physical or mental impairment that can be
expected to result in death or that has lasted or can be expected to last for a
Case 8:21-cv-00601-MRM Document 25 Filed 09/06/22 Page 2 of 32 PagelD 1981
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, 416.905. The impairment must be severe,
making the claimant unable to do her previous work or any other substantial gainful
activity that exists in the national economy. 42 U.S.C. §§ 423(d)(2), 1382c(a)(3); 20
C.F.R. §§ 404.1505 - 404.1511,416.905 - 416.911. Plaintiff bears the burden of
persuasion through step four, while the burden shifts to the Commissioner at step
five. Bowen v. Yuckert, 482 U.S. 137,146 n.5 (1987).
n.
Procedural History
Plaintiff filed an application for a period of disability and disability insurance
benefits on July 22, 2015, alleging a disability onset date of May 20, 2015. (Tr. at
13).1 Plaintiff’s claim was denied initially on November 4,2015, and upon
reconsideration on March 21, 2016. {Id.). Thereafter, Plaintiff requested a hearing
before an Administrative Law Judge (“ALJ”), and ALJ Steven L. Butler held that
hearing on October 12, 2017. {Id. at 94-146). ALJ Butler issued an unfavorable
decision on January 4, 2018. {Id. at 172-91). The Appeals Council granted
Plaintiff’s request for review on April 15, 2019, and remanded the decision to the
ALJ to (1) obtain more evidence concerning Plaintiff’s impairments to complete the
administrative record; (2) either obtain an Appointment of Representative form from
1 The SSA revised the rules regarding the evaluation of medical evidence and
symptoms for claims filed on or after March 27,2017. 5<?<? Revisions to Rules
Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 5844-01, 5844 (Jan. 18,
2017). The new regulations, however, do not apply in Plaintiff’s case because
Plaintiff filed her claim before March 27, 2017.
2
Case 8:21-cv-00601-MRM Document 25 Filed 09/06/22 Page 3 of 32 PagelD 1982
each of Plaintiffs representatives or, if Plaintiff was proceeding pro se, give her
information on her right to representation; (3) further consider evidence submitted
less than five business days before the scheduled hearing; and (4) if warranted, give
more consideration of Plaintiff’s residual functional capacity (“RFC”) during the
relevant time period and provide a rationale with specific references to the evidence
of record in support of the RFC. (Id. at 192-94; see also Doc. 13-14).
On remand, ALJ Anthony Reeves held a second hearing on December 17,
2019, at which Plaintiff appeared without representation. (Id. at 36-93). ALJ Reeves
issued an unfavorable decision on March 30, 2020. (Id. at 10-35). On January 26,
2021, the Appeals Council denied Plaintiffs request for review. (Id. at 1-6). Plaintiff
then filed her Complaint with this Court on March 16, 2021, (Doc. 1), and the
parties consented to proceed before a United States Magistrate Judge for all
purposes, (Docs. 13, 16). The matter is, therefore, ripe for the Court’s review.
III.
Summary of the Administrative Law Judge’s Decision
An ALJ must follow a five-step sequential evaluation process to determine if a
claimant has proven that she is disabled. Packer v. Comm’rofSoc. Sec., 542 F. App’x
890, 891 (11th Cir. 2013) (citing Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999)).
An ALJ must determine whether the claimant: (1) is performing substantial gainful
activity; (2) has a severe impairment; (3) has a severe impairment that meets or
equals an impairment specifically listed in 20 C.F.R. Part 404, Subpart P, Appendix
1; (4) can perform her past relevant work; and (5) can perform other work of the sort
3
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found in the national economy. Phillips v. Barnhart, 357 F.3d 1232, 1237-40 (11th
Cir. 2004). The claimant has the burden of proof through step four and then the
burden shifts to the Commissioner at step five. Hines-Sharp v. Comm’r ofSoc. Sec., 511
F. App’x 913, 915 n.2 (11th Cir. 2013).
The ALJ determined that Plaintiff met the insured status requirements of the
Social Security Act through December 31, 2020. (Tr. at 16). At step one of the
sequential evaluation, the ALJ found that Plaintiff had not engaged in substantial
gainful activity since May 20, 2015, the alleged onset date. (Id.). At step two, the
ALJ determined that Plaintiff has the following severe impairments: “obesity,
degenerative disc disease of the lumbar spine, and left DeQuervain’s tenosynovitis
(20 [C.F.R. §] 404.1520(c)).” (Id.). At step three, the ALJ determined that Plaintiff
did “not have an impairment or combination of impairments that me[t] or medically
equal[ed] the severity of one of the listed impairments in 20 [C.F.R.] Part 404,
Subpart P, Appendix 1 (20 [C.F.R. §§] 404.1520(d), 404.1525, and 404.1526).” (Id.).
At step four, the ALJ found that Plaintiff has the RFC:
to perform fight work as defined in 20 [C.F.R. §]
404.1567(b) except she can lift and carry 20 pounds
frequently and 50 pounds occasionally, sit for 2 hours at a
time for a total of 4 hours out of an 8-hour workday, stand
30 minutes at a time for a total of 2 hours out of an 8-hour
workday, and walk 30 minutes at a time for a total of 2
hours in an 8-hour workday. The claimant can frequently
reach in all directions bilaterally with the upper extremities.
She can occasionally climb stairs and ramps, occasionally
climb ladders or scaffolds, frequently balance, and never
stoop, kneel, crouch, or crawl. The claimant can tolerate
occasional exposure to unprotected heights and moving
mechanical parts. She can tolerate very loud noise.
4
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(Id. at 17). The ALJ also determined that Plaintiff “is capable of performing past
relevant work as a Purchasing Agent and Administrative Assistant” because “[t]his
work does not require the performance of work-related activities precluded by the
claimant’s [RFC] (20 [C.F.R. §] 404.1565).” (Id. at 23).
Despite finding that Plaintiff could perform her past relevant work, the ALJ
made alternative findings at step five. (Id. at 24). More specifically, considering
Plaintiff’s age, education, work experience, and RFC, and in reliance on Vocational
Expert (“VE”) testimony, the ALJ determined that “there are other jobs that exist in
significant numbers in the national economy that the claimant also can perform (20
[C.F.R. §§] 404.1569, 404.1569(a) and 404.1568(d))”—i.e., router (Dictionary of
Occupational Titles (“DOT”)# 222.587-038); fingerprint clerk (DOT# 209.367-026);
and microfilm mounter (DOT# 208.685-022). (Id. at 24).
For these reasons, the ALJ held that Plaintiff “has not been under a disability,
as defined in the Social Security Act, from May 20, 2015, through the elate of this
decision (20 [C.F.R. §] 404.1520(f)).” (Id. at 25).
IV.
Standard of Review
The scope of this Court’s review is limited to determining whether the ALJ
applied the correct legal standard, McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir.
1988), and whether the findings are supported by substantial evidence, Richardson v.
Perales, 402 U.S. 389, 390 (1971). The Commissioner’s findings of fact are
conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial
5
Case 8:21-cv-00601-MRM Document 25 Filed 09/06/22 Page 6 of 32 PagelD 1985
evidence is more than a scintilla—i.e., the evidence must do more than merely create
a suspicion of the existence of a fact, and must include such relevant evidence as a
reasonable person would accept as adequate to support the conclusion. Foote v.
Chater, 61 F.3d 1553, 1560 (11th Cir. 1995) (citing Walden v. Schweiker, 612 F.2d 835,
838 (11th Cir. 1982); Richardson, 402 U.S. at 401).
Where the Commissioner’s decision is supported by substantial evidence, the
district court will affirm, even if the reviewer would have reached a contrary result as
finder of fact, and even if the reviewer finds that “the evidence preponderates
against” the Commissioner’s decision. Edwards v. Sullivan, 937 F.2d 580, 584 n.3
(11th Cir. 1991); Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991). The district
court must view the evidence as a whole, taking into account evidence favorable as
well as unfavorable to the decision. Foote, 67 F.3d at 1560; accord Lowery v. Sullivan,
979 F.2d 835, 837 (11th Cir. 1992) (a court must scrutinize the entire record to
determine reasonableness of factual findings).
V.
Analysis
On appeal, Plaintiff raises two issues. As stated by the parties, the issues are:
1.
Whether the ALJ properly evaluated the medical opinion evidence
in accordance with SSA policy and Eleventh Circuit precedent;
and
2.
Whether the ALJ and [Appeals Council] judges were properly
appointed and, if not, whether this fact requires remand.
(Doc. 22 at 15, 33). The Court finds it appropriate to address the issues in a more
logical order. Accordingly, the Court first addresses the parties’ second issue—
6
Case 8:21-cv-00601-MRM Document 25 Filed 09/06/22 Page 7 of 32 PagelD 1986
whether the decision here is constitutionally defective, requiring remand. Next, the
Court considers the parties’ first issue—whether the ALJ properly evaluated the
medical evidence of record.
A.
Whether 42 U.S.C. § 902(a)(3) Necessitates a Rehearing.
Removal of the Commissioner of Social Security is governed by 42 U.S.C.
§ 902(a)(3), (the “removal provision”). Under § 902(a)(3), the SSA’s Commissioner
is appointed to a six-year term and may not be removed from office by the President
without a showing of cause. See 42 U.S.C. § 902(a)(3).
Plaintiff essentially argues that the § 902(a)(3) removal provision provides
unconstitutional tenure protection to the Commissioner of the SSA, violates the
separation of powers, and, therefore, the SSA’s structure is constitutionally invalid.
(See Doc. 22 at 33-35 (citing 42 U.S.C. § 902(a)(3); SeilaL. LLCv. Consumer Fin. Prot.
Bureau, 140 S. Ct. 2183 (2020))). To that end, Plaintiff impliedly asserts that
Commissioner Andrew Saul was subject to the removal provision’s allegedly
unconstitutional tenure protection and, thus, any actions taken by him or pursuant to
his authority were unconstitutional. (See id.). For example, Plaintiff argues that,
because Commissioner Saul delegated his authority to the ALJ who issued a decision
in Plaintiff’s case and to the Appeals Council Judges, Plaintiffs Haim was
adjudicated by individuals who “had no lawful authority to do so.” (See id. at 34-35
(citations omitted)). Plaintiff also asserts that her claim was decided under “a
presumptively inaccurate legal standard” because Commissioner Saul issued
regulations under which Plaintiffs application was decided. (Id.).
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The Commissioner “agree[s/ that 42 U.S.C. § 902(a)(3) violates the separation
of powers to the extent it is construed as limiting the President’s authority to remove
the Commissioner without cause,” (id. at 35 (emphasis added) (citing
Constitutionality of the Commissioner of Social Security’s Tenure Protection, 45 Op.
O.L.C.
, 2021 WL 2981542 (July 8, 2021))), but disagrees that the removal
provision necessitates a remand of Plaintiffs case, (id. at 35-36 (citation omitted)).
Specifically, the Commissioner contends that Plaintiff cannot show a nexus between
42 U.S.C. § 902(a)(3)’s removal provision and any alleged harm suffered by Plaintiff.
(See id. at 36-44 (citing Collins v. Yellen, 141 S. Ct. 1761 (2021); Lucia v. S.E.C., 138 S.
Ct. 2044 (2018); Decker Coal Co. v. Pehringer, 8 F.4th 1123 (9th Cir. 2021))).
The Commissioner raises two arguments in support of this contention. First,
the Commissioner argues that because ALJ Reeves served under a ratification of his
appointment by former Acting Commissioner Nancy Berryhill, there was no
connection between ALJ Reeves’s decision and the removal provision. (See id. at 3839 (citations omitted)). Because Acting Commissioner Berryhill was not subject to
any tenure protection under 42 U.S.C. § 902(a)(3), the Commissioner asserts that any
potential nexus between the removal provision and the decision in Plaintiffs case
was severed. (See id.). Second, even if Plaintiff’s case were decided under the
authority of a Commissioner subject to the removal provision, the Commissioner
argues that Plaintiff “cannot show that the removal restriction ‘inflict[ed]
compensable harm’ on her.” (Id. at 40-44 (alteration in original) (citing Collins, 141
S. Ct. at 1789)).
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The Commissioner next argues that Plaintiffs rehearing request should be
denied under the harmless error doctrine, (id. at 44-45 (citations omitted)), the defacto
officer doctrine, (id. at 45-46 (citations omitted)), the rule of necessity (id. at 46-47
(citations omitted)), and broad prudential considerations, (id. at 47-48 (citations
omitted)).
By way of reply, Plaintiff addresses several arguments posited by Defendant.
(See id. at 48-56). First, Plaintiff argues that under Collins v. Yellen, 141 S. Ct. 1761,
1778-89 (2021), unconstitutional removal restrictions implicate separations of
powers. (Id. at 48-49 (citations omitted)). Second, Plaintiff maintains that she was
harmed by the provision because but for the delegation of authority, (1) the Appeals
Council could not have issued adverse determinations and (2) she would not have
faced a constitutionally illicit adjudication process at the Appeals Council level. (Id.
at 27-28). In advancing this argument, Plaintiff summarizes the President’s actions
and statements immediately following the Office of the Legal Counsel of U.S.
Department of Justice’s issuance of the memorandum on the Constitutionality of the
Commissioner of Social Security’s Tenure Protection, to show that the President
would have removed Former Commissioner Saul had the President thought he had
the authority to do so. (See id. at 49-53). Third, Plaintiff contends that the alleged
unconstitutional provision cannot be deemed harmless under law or fact and that
remand would remedy some harms Plaintiff has suffered. (Id. at 53 (citation
omitted)). Fourth, Plaintiff argues that the defacto officer doctrine does not apply to
basic constitutional protections. (Id. at 54 (citations omitted)). Fifth, Plaintiff asserts
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that the rule of necessity should not apply because “the government cannot claim
necessity arising from its own sustained, brazen unconstitutional actions and
inactions over more than a quarter century.” {Id. at 54). Finally, Plaintiff argues that
the “SSA’s invitation to make up law in the guise of ‘prudential considerations’”
lacks merit because remand given the tenure provision would apply to only a few
claimants. {Id. at 54-55). Plaintiff further maintains that what the SSA actually seeks
in relying on the so-called prudential considerations “is a ruling that it ‘lawfully’
violated the Constitution in the past and can continue to do so in the fixture.” {Id. at
55).
On June 29, 2020, in SeilaLawLLC v. Consumer Fin. Prot. Bureau, 140 S. Ct.
2183 (2020), the United States Supreme Court held that a “for-cause” removal
restriction on the President’s executive power to remove the Consumer Financial
Protection Bureau’s (“CFPB”) director violated constitutional separation of powers,
but that the removal provision was severable such that the other provisions relating
to the CFPB’s structure and duties “remained fully operative without the offending
tenure restriction.” SeilaL. LLC, 140 S. Ct. at 2209 (citing Free Enter. Fundv. Pub. Co.
Acct. OversightBd., 561 U.S. 477, 509 (2010)).
Thereafter, on June 23, 2021, in Collins v. Yellen, 141 S. Ct. 1761 (2021), the
United States Supreme Court held that the Federal Housing Finance Agency
(“FHFA”) director’s statutory for-cause removal protection was similarly
unconstitutional. Collins, 141 S. Ct. at 1783. The Court also distinguished the
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unconstitutional removal provision in Collins from similar appointment provisions,
see, e.g., Lucia v. S.E.C., 138 S. Ct. 2044 (2018), noting that:
All the officers who headed the FHFA during the time in
question were properly appointed. Although the statute
unconstitutionally limited the President’s authority to
remove the confirmed Directors, there was no constitutional
defect in the statutorily prescribed method of appointment
to that office. As a result, there is no reason to regard any
of the actions taken by the FHFA [challenged on appeal] as
void.
Id. at 1787 (emphasis in original). The Court did not, however, rule out the potential
that an unconstitutional removal provision could “inflict compensable harm.” Id. at
1788-89. To that point, the Collins Court listed examples of how compensable harms
might be identified, stating:
Suppose, for example, that the President had attempted to
remove a Director but was prevented from doing so by a
lower court decision holding that he did not have “cause”
for removal. Or suppose that the President had made a
public statement expressing displeasure with actions taken
by a Director and had asserted that he would remove the
Director if the statute did not stand in the way. In those
situations, the statutory provision would clearly cause
harm.
Id.
In this matter, the Commissioner agrees with Plaintiff that 42 U.S.C.
§ 902(a)(3) is unconstitutional because it violates the separation of powers. (Doc. 22
at 35 (citing Constitutionality of the Commissioner of Social Security’s Tenure
Protection, 45 Op. O.L.C. -—, 2021 WL 2981542 (July 8,2021))). However, despite
the parties’ agreement, the Court need not determine the constitutionality of 42
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U.S.C. § 902(a)(3)’s removal provision. In short, even assuming arguendo that the
removal provision is unconstitutional, it would not necessitate a rehearing of
Plaintiff s claim because the provision is severable and there is no evidence to suggest
a nexus between the removal provision and a compensable harm to Plaintiff.
Accordingly, the Court assesses whether the removal provision necessitates a
rehearing of Plaintiffs claim, assuming arguendo that the provision is
unconstitutional.
Plaintiff essentially contends that the allegedly unconstitutional nature of
section 902(a)(3) automatically voids the ALJ’s decision in this case. (See Doc. 22 at
33-35). On the other hand, the Commissioner raises a host of arguments as to why
Plaintiffs rehearing request should be denied. (See id. at 35-48).
Here, the Court agrees with the Commissioner’s arguments and finds a
rehearing is not required based solely on the allegedly unconstitutional removal
provision for two reasons: (1) the removal provision is severable from the remainder
of the Social Security Act; and (2) Plaintiff has failed to show how the allegedly
unconstitutional removal provision harmed her.
The Court in Seila Law noted that “one section of a statute may be repugnant
to the Constitution without rendering the whole act void.” See Seila L. LLC, 140 S.
Ct. at 2208. Based on this principle, the Court is not persuaded by Plaintiff’s broad
argument that 42 U.S.C. § 902(a)(3)’s removal provision divests the Commissioner of
all authority under the Social Security Act or renders all of the Commissioner’s
actions “presumptively inaccurate.” {See Doc. 22 at 33-35). Rather, like the
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offending provision in Seila Law, the Court finds that 42 U.S.C. § 902(a)(3) can be
severed from the remainder of the Act because the SSA can continue to fully
function without the presence of the allegedly unconstitutional provision. See Seila L.
LLC, 140 S. Ct. at 2209; see also Tibbetts v. Comm’rofSoc. Sec., No. 2:20-cv-872-SPCMRM, 2021 WL 6297530, at *5 (M.D. Fla. Dec. 21, 2021), report and recommendation
adopted, 2022 WL 61217 (M.D. Fla. Jan. 6, 2022) (citations omitted) (finding that
remand based on the allegedly unconstitutional nature of 42 U.S.C. § 902(a)(3) is
unwarranted based, in part, on its severability from the remainder of the Act). Thus,
the Court finds that remand for a rehearing on this issue is not warranted.
Moreover, while the Collins Court recognized die potential that an
unconstitutional removal provision could “inflict compensable harm,” see Collins, 141
S. Ct. at 1788-89, the Court has found no evidence suggesting that there is a
connection between the removal provision and any possible harm to Plaintiff. For
example, Plaintiff has not shown that the President could not remove Mr. Saul as a
result of the alleged unconstitutional tenure, undermining the existence of a nexus
between the provision and the unfavorable decision. To the extent Plaintiff attempts
to show that the President’s actions and statements following the issuance the
memorandum on the Constitutionality of the Commissioner of Social Security’s
Tenure Protection, 45 Op. O.L.C.
2021 WL 2981542 (July 8,2021) demonstrate
that the President was dissatisfied with the Former Commissioner or would have
removed the Former Commissioner if the President believed he had the authority to
do so, (see Doc. 22 at 49-53), the argument is wholly speculative. Additionally,
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Plaintiff fails to show that absent the alleged unconstitutional provision, Plaintiffs
claim would have been decided differently at either the ALJ or the Appeals Council
level. Indeed, Plaintiff has pointed to no portion of either the ALJ’s decision or the
decision of the Appeals Council that she contends would have been decided
differently but for the alleged unconstitutional provision. Finally, Plaintiffs Haim
was adjudicated by an ALJ whose tenure was ratified by former Acting
Commissioner Berryhill. Because former Acting Commissioner Beiryhill was not
subject to 42 U.S.C. § 902(a)(3)’s tenure protection, any argument that a nexus exists
between § 902(a)(3) and a compensable harm to Plaintiff is further strained.
Furthermore, while the United States Supreme Court has not addressed this
issue directly, Justice Kagan forecasted its outcome in Collins:
[T]he majority’s approach should help protect agency
decisions that would never have risen to the President’s
notice. Consider the hundreds of thousands of decisions
that the [SSA] makes each year. The SSA has a single head
with for-cause removal protection; so a betting person might
wager that the agency’s removal provision is next on the
chopping block . . . [b]ut given the majority’s remedial
analysis, I doubt the mass of SSA decisions—which would
not concern the President at all—would need to be undone.
That makes sense.... When an agency decision would not
capture a President’s attention, his removal authority could
not make a difference—and so no injunction should issue.
See id. at 1802 (Kagan, J., concurring). Justice Kagan’s reasoning supports the
Court’s conclusion that there is no evidence in the instant case to suggest that a
nexus exists between § 902(a)(3) and any compensable harm to Plaintiff
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For these reasons, even assuming arguendo that 42 U.S.C. § 902(a)(3)’s
removal provision is unconstitutional, the Court finds that the removal provision
does not necessitate remand or a rehearing of Plaintiffs claim. See Seila L. LLC, 140
S. Ct. 2183; Collins, 141 S. Ct. 1761; see also Tibbetts, 2021 WL 6297530, at *5, report
and recommendation adopted, 2022 WL 61217 (holding that remand based on the
allegedly unconstitutional nature of 42 U.S.C. § 902(a)(3) is unwarranted); PerezKocherv. Comm’rofSoc. Sec., No. 6:20-cv-2357-GKS-EJK, 2021 WL 6334838, at *4
(M.D. Fla. Nov. 23, 2021) (finding that a plaintiff had failed to state a claim upon
which relief could be granted because the plaintiff could not establish that the Acting
Commissioner’s unconstitutional tenure protection caused compensable harm).
B.
Whether the ALJ Properly Evaluated the
Medical Evidence of Record.
Plaintiff also asserts that the ALJ did not provide good reasons for rejecting
opinion evidence that contradicted his RFC finding. (Doc. 22 at 17). Specifically,
Plaintiff challenges the weight that the ALJ afforded to (1) Dr. Krasner’s opinions,
(2) Dr. Lifrak’s opinion, (3) Dr. Wynn’s opinions, and (4) the Functional Assessment
Report completed by Plaintiffs physical therapy center. (See id. at 17-33).
As to Dr. Krasner’s opinions, Plaintiff argues that the ALJ “never obviously
considered” Dr. Krasner’s status as a treating source when assessing his opinions at
step four because the ALJ only identified Dr. Krasner as a treating source at step
three. (Id. at 17-18).
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As to the opinions of Dr. Krasner, Dr. Lifrak, and Dr. Wynn and the
Functional Assessment Report, Plaintiff maintains that the ALJ erred in assessing
the opinions “in isolation from each other without recognizing that they support and
are consistent with each other.” (Id. at 18 (emphasis omitted)). More particularly,
Plaintiff contends that because the opinions of Dr. Krasner, Dr. Lifrak, and Dr.
Wynn are consistent with other evidence of record and with each other, the ALJ
erred in giving the opinions less than controlling weight. (See id. at 20-21). In
presenting this argument, Plaintiff challenges the records cited by the ALJ, arguing
that the specific records in fact support Plaintiffs position. (See id. at 21-22 (citations
omitted)). Ultimately, Plaintiff maintains that while some records show normal
examinations and improvement, the limited examples cannot “devalue the weight of
treating and examining medical opinions and an independent functional evaluation”
and that “the ALJ’s failure to acknowledge and address evidence contradicting his
findings demonstrates [his] unjustified reliance on a highly selective portion of the
evidence,” (Id. at 22-23).
As to the Functional Assessment Report, Plaintiff argues that the ALJ’s
reason for affording the report limited weight—that the examiner was not able to
fully assess Plaintiffs abilities due to Plaintiffs recent surgery—lacks merit because
the purpose of the Functional Assessment Report is to evaluate Plaintiffs ability to
perform work related activities. (Id. at 19-20). In essence, Plaintiff contends that the
limitations imposed by the Functional Assessment Report speak directly to Plaintiffs
RFC. (See id.). Plaintiff also argues that the opined restrictions have been in place
16
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since at least November 2015, as shown by Dr. Krasner’s opinions. {Id. at 19 (citing
Tr. at 860, 870, 929, 1146, 1529)).
Finally, Plaintiff argues that if the ALJ had questions regarding Plaintiff’s
functional limitations, he had several options to resolve the questions, including re
contacting Plaintiff’s physicians, returning the expanded case record to the State
Agency for an updated review, or obtaining testimony from a medical expert. {Id. at
23 (citations omitted)). Plaintiff essentially contends that setting aside the treating
physicians’ opinions, however, was not an appropriate action under these facts and
remand is, therefore, warranted. {See id. at 23-24).
In response, Defendant argues that substantial evidence supports the AU’s
RFC finding, including his consideration of the medical evidence. {Id. at 24-26).
Accordingly, Defendant argues that substantial evidence supports the RFC finding.
{Id. at 26).
Turning to Plaintiff’s specific contentions, Defendant first argues that the ALJ
properly considered die opinions of Dr. Krasner but ultimately found that certain
opinions contradicted others, some opinions were on issues reserved to the
Commissioner, and the remaining opinions were not consistent with other evidence
of record. {Id. at 27-29). Thus, Defendant maintains that the AU provided good
cause for assigning less than controlling weight to Dr. Krasner’s opinions. {Id. at 29).
Second, Defendant argues that the ALJ provided good cause for rejecting Dr.
Wynn’s opinions because the opinions were not consistent with the evidence of
record or otherwise did not constitute medical opinions. {Id. at 29-30). Third,
17
Case 8:21-cv-00601-MRM Document 25 Filed 09/06/22 Page 18 of 32 PagelD 1997
Defendant contends that the ALJ did not err in assessing Dr. Lifrak’s opinion
because Dr. Lifrak was not a treating source, the ALJ found the lifting restriction to
be inconsistent with evidence of record, and the RFC otherwise provided greater
limitations than opined. (Id. at 30-31). Fourth, as to the Functional Assessment
Report, Defendant asserts that the report does not constitute a medical opinion
because it is unsigned. (Id. at 31). Defendant nevertheless maintains that even if it
were construed as an opinion, the ALJ properly found it to be entitled to limited
weight for the reasons proffered. (Id.). Finally, Defendant argues that although the
opinions may be consistent with each other, the ALJ did not err in finding each to be
unsupported by the record. (See id. at 31-32).
Defendant further contends that the ALJ did not err in deciding not to re
contact a medical source because such a determination is in the ALJ’s discretion and
limited as to its application. (Id. at 32). Defendant maintains that an ALJ’s decision
to discount opinions - even from treating sources - does not trigger a duty to re
contact the physicians. (Id.). Defendant nevertheless notes that the ALJ solicited the
opinion of a medical expert and assigned great weight to the opinion. (Id. at 33).
In sum, Defendant argues that “the ALJ applied the correct legal standards,
and substantial evidence supports the ALJ’s finding that Plaintiff is not disabled” and
that the Court should not reweigh the evidence to reach the opposite conclusion.
(Id.).
The relevant Social Security regulations define medical opinions as statements
from physicians, psychologists, or other acceptable medical sources that reflect
18
Case 8:21-cv-00601-MRM Document 25 Filed 09/06/22 Page 19 of 32 PagelD 1998
judgments about the nature and severity of impairments, including symptoms,
diagnoses, and prognoses, what a claimant can still do despite impairments, and
physical or mental restrictions. 20 C.F.R. § 404.1527(a)(2). When evaluating a
medical opinion, the ALJ considers various factors, including: (1) whether the
doctor has examined the claimant; (2) the length, nature, and extent of a treating
doctor’s relationship with the claimant; (3) the medical evidence and explanation
supporting the doctor’s opinion; (4) how consistent the doctor’s opinion is with the
record as a whole; and (5) the doctor’s specialization. Denomme v. Comm’r, Soc. Sec.
Admin., 518 F. App’x 875, 877 (11th Cir. 2013) (citing 20 C.F.R. §§ 404.1527(c),
416.927(c)).
An ALJ is required to consider every medical opinion. Bennett v. Astrue, No.
308-CV-646-J-JRK, 2009 WL 2868924, at *2 (M.D. Fla. Sept. 2, 2009) (citing 20
C.F.R. §§ 404.1527(d), 416.927(d)). Additionally, the Eleventh Circuit has stated
that an AU must state with particularity the weight given to different medical
opinions and die reasons therefor. Winschel v. Comm’r ofSoc. Sec., 631 F.3d 1176,
1179 (11th Cir. 2011). Otherwise, the Court has no way to determine whether
substantial evidence supports the ALJ’s decision, and the Court will not affirm
simply because some rationale might have supported the ALJ’s conclusion. See id.
Nonetheless, an incorrect application of the regulations will result in harmless error if
a correct application of the regulations would not contradict the ALJ’s ultimate
findings. Denomme, 518 F. App’x at 877-78 (citing Diorio v. Heckler, 721 F.2d 726,
728 (11th Cir. 1983)).
19
Case 8:21-cv-00601-MRM Document 25 Filed 09/06/22 Page 20 of 32 PagelD 1999
The Eleventh Circuit has further held that the opinion of a treating physician
must be given substantial or considerable weight unless “good cause” is shown to the
contrary. Phillips, 357 F.3d at 1240-41 (citing Lewis v. Callahan, 125 F.3d 1436, 1440
(11th Cir. 1997)). Good cause exists when: (1) the treating physician’s opinion was
not bolstered by the evidence; (2) the evidence supported a contrary finding; or
(3) the treating physician’s opinion was conclusory or inconsistent with the doctor’s
own medical records. Id. Moreover, an “ALJ may reject any medical opinion if the
evidence supports a contrary finding.” Lacina v. Comm’r, Soc. Sec. Admin., 606 F.
App’x 520, 526 (11th Cir. 2015) (quoting Sharfarzv. Bowen, 825 F.2d 278, 280 (11th
Cir. 1987)).
Because Plaintiff limits her arguments to the assessment of the Functional
Assessment Report and the opinions of Dr. Krasner, Dr. Wynn, and Dr. Lifrak, the
Court considers only those opinions.
As to the ALJ’s assessment of the Functional Assessment Report, the Court
finds it to be supported by substantial evidence. As noted above, an ALJ is required
to state with particularity the weight given to each medical opinion and the reasons
therefor. Winschel, 631 F.3d at 1179. Under the pertinent regulations, “[mjedical
opinions are statements from acceptable medical sources that reflect judgments about
the nature and severity of [a claimant’s] impairments), including [a claimant’s]
symptoms, diagnosis and prognosis, what [a claimant] can still do despite
impairment(s), and [a claimant’s] physical or mental restrictions.” 20 C.F.R.
§ 404.1527(a)(2). Here, the unsigned document does not provide sufficient
20
Case 8:21-cv-00601-MRM Document 25 Filed 09/06/22 Page 21 of 32 PagelD 2000
information to show that the report was that of an acceptable medical source. See
Matos v. Colvin, No. 6:14*cv-1396-Orl-DAB, 2015 WL 5474486, at *4 (M.D. Fla.
Sept. 17,2015) (noting that an unsigned document did not show whether it was an
opinion of an acceptable medical source). Moreover, physical therapists - the source
most likely to have drafted this report - do not constitute “acceptable medical
source[s]” under the pertinent regulations. See Sears v. Comm’r of Soc. Sec., No. 8:14cv-2635-T-17JSS, 2016 WL 11581678, at *4 (M.D. Fla. Jan. 20, 2016); see also SSR
06-03p, 2006 WL 2329939, at *2 (describing “[m]edical sources who are not
‘acceptable medical sources,’ such as nurse practitioners, physician assistants,
licensed clinical social workers, naturopaths, chiropractors, audiologists, and
therapists”). Thus, the Court finds that neither Plaintiff nor the report itself has
shown that the report constitutes a medical opinion. As a result, the report is not
entitled to controlling weight. See Freeman v. Barnhart, 220 F. App’x 957, 961 (11th
Cir. 2007) (noting the opinion of the physical therapist “is entitled to less weight than
the opinions of the medical doctors because he is a physical therapist”).
Nevertheless, the ALJ did not impermissibly reject the opinion outright. (See
Tr. at 22). Instead, the ALJ considered the opinion and found it to be entitled to
“limited weight... because the examiner was unable to fully assess the claimant’s
ability because she was on restrictions from a recent surgery.” (Id.). Upon review,
the Court finds the reason to be supported by substantial evidence. Indeed, the
author of the report explicitly noted that he or she was “[ujnable to fully determine
all barriers that will remain as [Plaintiff] is on temporary restrictions from recent
21
Case 8:21-cv-00601-MRM Document 25 Filed 09/06/22 Page 22 of 32 PagelD 2001
surgery.” (Id. at 1541 (emphasis added)). Because the law requires that a disability
either be expected to result in death or have lasted or be expected to last for a
continuous period of at least twelve months, 42 U.S.C. §§ 416(i), 423(d)(1)(A),
1382c(a)(3)(A); 20 C.F.R. §§ 404.1505, 416.905, the Court finds the ALJ’s reliance
on the temporariness of Plaintiff’s additional restrictions to be appropriate, (see Tr. at
22). Thus, the Court finds that substantial evidence supports the ALJ’s finding. The
Court, therefore, finds no error in the ALJ’s assessment of the Functional
Assessment Report.
As to Dr. Wynn’s opinion that Plaintiff was released to perform her normal
duties up to her capacity, the ALJ found the opinion to be entitled to no weight
because it did not provide specific functional limitations. (Id. (citing Tr. at 1701)).
The Court finds this determination to be supported by substantial evidence. In that
regard, the opinion states only that Plaintiff may “perform normal duties up to her
capacity.” (Id. at 1701). Such a statement does not adequately provide the ALJ with
an ability to assess what Plaintiff can still do despite her impairments. (See id.)] see
also 20 C.F.R. § 404.1527(a)(2). Put simply, nothing in the statement clarifies what
Plaintiff’s “capacity” was at the time. (See Tr. at 1701). Thus, the statement cannot
constitute a medical opinion under the regulations, and the ALJ was, therefore,
under no obligation to grant it a specific weight. See Moon v. Comm’rofSoc. Sec., No.
8:12-cv-02911-T, 2014 WL 548110, at *2 (M.D. Fla. Feb. 11, 2014) (finding that the
ALJ need not give a particular weight to a statement that does not constitute a
medical opinion). Moreover, even if the statement were considered a medical
22
Case 8:21-cv-00601-MRM Document 25 Filed 09/06/22 Page 23 of 32 PagelD 2002
opinion, the Court finds the lack of specificity supports affording it no weight,
despite that it was written by a treating source.
The ALJ also afforded limited weight to the opinions of Dr. Wynn and Dr.
Krasner, both of whom are treating sources and opined that Plaintiff was restricted to
“no pushing, pulling, and lifting more than 10 pounds with no prolonged sitting,
standing, or walking.” (Tr. at 22). More specifically, the ALJ found the opinions to
be unsupported by “the evidence as a whole, including the physical examination
findings,” citing a specific record as an example. (Id. (citing Tr. at 1667-68)). Upon
review, the Court finds the ALJ’s determination as to these opinions to be supported
by substantial evidence. As Plaintiff acknowledges, (see Doc. 22 at 21-22), the record
cited by the ALJ shows normal findings on examination, (see Tr. at 1667-68).
Specifically, the examination revealed, inter alia, that Plaintiff had full range of
motion in her upper and lower extremities, full strength in all upper extremity tests,
normal station, and no weakness in her lower extremities. (See id.). Additionally,
the ALJ cited to this record as an example, as evinced by his use of the preface “i.e.”
(See id. at 22). Other evidence in the record shows similar findings to those cited by
the ALJ here. (See, e.g., Tr. at 561, 1112-13, 1269-70, 1672-73). These normal
objective findings are facially inconsistent with the extreme limitations opined by Dr.
Wynn and Dr. Krasner. Such inconsistencies constitute good cause for giving the
opinions less than controlling weight. See Phillips, 357 F.3d at 1240-41 (citation
omitted).
23
Case 8:21-cv-00601-MRM Document 25 Filed 09/06/22 Page 24 of 32 PagelD 2003
Although Plaintiff asserts that other evidence—both in the specific record cited
by the ALJ and elsewhere in the record—undermines the ALJ’s decision to afford
limited weight to these opinions, it is not for the Court to reweigh the evidence or
decide the facts anew. Winschel, 631 F.3d at 1178. Instead, the Court must
determine if the relevant evidence adequately supports the ALJ’s conclusion. Id.
Thus, even if the evidence preponderates against the Commissioner’s findings, a
court must affirm the decision if it is supported by substantial evidence. Crawford v.
Comm’rofSoc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004). As noted above, the ALJ
here cited specific evidence to support his finding that the opined limitations are
unsupported by the evidence of record. Accordingly, the Court finds the assessment
of Dr. Wynn’s and Dr. Krasner’s opinions to be supported by substantial evidence.
As to Dr. Krasner’s remaining opinions, the ALJ considered each individually
and afforded them either limited or no weight. (Tr. at 20-22). In assessing whether
these findings are supported by substantial evidence, the Court begins by considering
those afforded limited weight.
First, the ALJ gave limited weight to Dr. Krasner’s opinion that Plaintiff
“would be out of work from May 20, 2015, through August 2,2015, is unable to
work due to pain when having a flare, and would require good ergonomics and the
freedom to move around during the workday once she returns to work,” (id. at 20-21
(citation omitted)), because the weight of the evidence, including improvement with
physical therapy, did not support the opinion, (id. (citing, as an example, Tr. at
1155)).
24
Case 8:21-cv-00601-MRM Document 25 Filed 09/06/22 Page 25 of 32 PagelD 2004
Second, the ALJ gave limited weight to Dr. Krasner’s opinion that Plaintiff
should “work part-time, no more than 25 hours per week with no lifting, bending,
squatting, pulling/pushing, lifting heavy items, stairs, extended sitting or standing,
no extended driving or traveling, and needs the flexibility to accommodate her
condition as needed,” {id. at 21 (citing Tr. at 860)), because “the August 2015 x-ray
that showed mild degenerative changes and the March 2016 consultative
examination findings support finding [Plaintiff wa]s not as limited as Dr. Krasner
opined,” {id. (citing Tr. at 826, 911-12)).
Third, the ALJ gave limited weight to Dr. Krasner’s opinion that Plaintiff can
sit for “1 hour at a time and 4 hours total, stand[ for] 30 minutes at a time and 2
hours total, and walk[] for 30 minutes at a time and 2 hours total,” can lift and carry
10 pounds bilaterally, and cannot bend, kneel or crouch, {id. (citing Tr. at 869-70)),
because “the findings of normal extremity strength do not support the
lifting/carrying and postural limitations,” {id. (citing Tr. at 912,1113, 1205, 1541,
1667-68)).
Fourth, the ALJ gave limited weight to Dr. Krasner’s opinions that Plaintiff:
(1) must “avoid excessive bending, squatting, sitting, and standing, should avoid
lifting, pushing, or pulling anything over 20 pounds, and should be allowed to sit in
an adult-sized chair whenever needed,” {id. (citing Tr. at 929)); (2) is limited to one
hour of sitting, standing, and walking, {id (citing Tr. at 1159-62)); (3) is “unable to
work for 6 to 9 months and cannot sit or stand up to 4 hours,” {id. (citing Tr. at 128889); and (4) is not able to “walk more than 200 feet due to pain and uses a cane,” {id.
25
Case 8:21-cv-00601-MRM Document 25 Filed 09/06/22 Page 26 of 32 PagelD 2005
(citing Tr. at 1545)), because “the evidence, including the claimant’s improvement
with physical therapy (i.e. [Tr. at 1155]) and surgery ([Tr. at 958, 1113]) and the
physical examination findings (i.e. [Tr. at 1540-41, 1550, 1667-68]) do not support
Dr. Krasner’s restrictive limitations,” (id. at 21-22).
Finally, the ALJ gave limited weight to Dr. Krasner’s opinions that Plaintiff
can “lift and cany 20 pounds occasionally and 10 pounds frequently, sit for 8 hours
with breaks in between, stand for 1 hour, and walk for 1 hour,... cannot ambulate
without a cane, can occasionally reach overhead and in all other directions
bilaterally, [can] never climb stairs, ramps, ladders or scaffolds, balance, stoop, kneel,
crouch, or crawl,” and “could have no exposure to unprotected heights, moving
mechanical parts, humidity, wetness, dust, odors, fumes, pulmonary irritants,
extreme cold, extreme heat, vibrations, and occasionally operator a motor vehicle,”
(id. at 22 (citing Tr. at 1832-37)),2 because “the evidence, including the improvement
with physical therapy and release surgery, as well as the examination findings, do not
support such restrictive limitations,” (id. at 22 (citing, as examples, Tr. at 958, 1113,
1155, 1540-41, 1550, 1667-68)).
Upon review, the Court finds the ALJ’s findings to be supported by substantial
evidence. Indeed, the ALJ cited specific records in support of his findings. Each
record cited shows that Plaintiff improved with physical therapy and surgery, (id. at
2 The ALJ erroneously cited to exhibit 63F as opposed to 64F. (See Tr. at 22). The
Court finds this to be a harmless error, seeDenomme v. Comm’r, Soc. Sec. Admin., 518
F. App’x 875, 877 (11th Cir. 2013) (citing Diorio v. Heckler, 721 F.2d 726, 728 (11th
Cir. 1983)), and cites to the proper record.
26
Case 8:21-cv-006Gl-MRM Document 25 Filed 09/06/22 Page 27 of 32 PagelD 2006
958, 1155), had only mild showings on her x-rays, (id. at 826), and exhibits foil or
near foil range of motion and strength in upper and lower extremities, (id. at 911-12,
1113, 1205, 1541, 1667-68). Additionally, many of those records were cited as
examples, and a review of the record as a whole demonstrates that additional records
reflect similar findings. (See, e.g., id. at 561, 1269-70,1672-73). Thus, by determining
that the opinions were not supported by the evidence, the ALJ articulated good cause
for giving the opinions less than controlling weight. See Phillips, 357 F.3d at 1240-41
(citation omitted).
Turning to the opinions that the ALJ found to be entitled to no weight, the
Court likewise finds the determinations to be supported by substantial evidence.
First, the ALJ found Dr. Krasner’s opinion that Plaintiff should not return to work
for the State of Delaware to be entitled to no weight because “it appealed] to be
based on [Plaintiff’s] self-report[ing] ([Tr. at 849]), does not provide any functional
limitations, and makes a finding on an issue reserved to the Commissioner.” (Id. at
21). Second, the ALJ found Dr. Krasner’s opinion that Plaintiffs “restrictions are
psychological, not physical, and she is not able to return to work ([Tr. at 875])” to be
entitled to no weight because the opinion contradicted opinions by Dr. Krasner and
is an opinion on an issue reserved to the Commissioner. (Id.).
Upon review, the Court finds the ALJ’s determinations to be supported by
substantial evidence. First, as noted by the ALJ, whether a claimant is disabled is an
issue reserved for the Commissioner. 20 C.F.R. § 404.1527(d)(1). As a result, to the
extent the statements opine as to Plaintiffs ability to return to work, neither
27
Case 8:21-cv-00601-MRM Document 25 Filed 09/06/22 Page 28 of 32 PagelD 2007
constitutes a medical opinion, and the ALJ is, therefore, under no obligation to
weigh the opinions or afford them a particular weight. See Moon, 2014 WL 548110,
at *2 (finding that the ALJ need not give a particular weight to a statement that does
not constitute a medical opinion). Nor did the ALJ reject the statements outright or
otherwise ignore them. {See Tr. at 21). Rather, the ALJ properly considered the
statements and provided specific reasons for finding that they were entitled to no
weight—i.e., that one statement was based on Plaintiffs self-reporting and that the
other contradicted other opinions by the same doctor. Both reasons are supported by
substantial evidence and speak to one of the factors specified in 20 C.F.R.
§ 404.1527(c)—i.e., the supportability of the opinions. Accordingly, the Court finds
that the ALJ did not err in determining that these statements are entitled to no
weight.
Although Plaintiff' asserts that other evidence—both in the records cited by the
ALJ and elsewhere in the record—undermines the ALJ’s decision to afford limited
or no weight to these opinions, it is not for the Court to reweigh the evidence or
decide the facts anew. Winschel, 631 F.3d at 1178. Thus, even if the evidence
preponderates against the Commissioner’s findings, a court must affirm the decision
if it is supported by substantial evidence. Crawford, 363 F.3d at 1158. Upon review
of the records cited by the ALJ and the record as a whole, the Court finds the
assessment of Dr. Krasner’s opinions to be supported by substantial evidence.
To the extent Plaintiff asserts that the ALJ did not properly assess Dr.
Krasner’s opinions as those of a treating source, {see Doc. 22 at 17-18), the Court is
28
Case 8:21-cv-00601-MRM Document 25 Filed 09/06/22 Page 29 of 32 PagelD 2008
not persuaded. Rather, when assessing whether Plaintiff met a listing at step three,
the ALJ specifically noted that Dr. Krasner was Plaintiffs family medicine
physician. (Tr. at 16). The ALJ also identified one of Dr. Krasner’s opinions as
being part of “a Treating Source Statement.” (Id. at 21). Accordingly, the Court
finds that the ALJ was aware of Dr. Krasner’s status as a treating source, but
nonetheless determined that good cause existed to afford his opinions less than
controlling weight. (See id. at 16, 20-22).
Finally, the ALJ determined that Dr. Lifrak’s opinion—that Plaintiff “is able
to walk indoors and outdoors, sit for a total period of up to 6 hours out of an 8-hour
day, stand for a total period of up to 6 hours out of an 8-hour day, and lift weights up
to 10 pounds with either hand on a regular basis”—was entitled to limited weight.
(Id. at 22 (citing Tr. at 913)). In support, the ALJ determined that “the weight of the
evidence, including the mostly normal strength findings, do[es] not support limiting
lifting and carrying to 10 pounds bilaterally,” (id. (citing, as examples, Tr. at 1386,
1667), but the ALJ nonetheless noted that the RFC contained greater limitations on
sitting, standing, and walking, (id. (citation omitted)).
Upon review, the Court finds that the ALJ’s determination is supported by
substantial evidence. As to the opined limitation in Plaintiffs ability to lift, the
Court likewise finds no error.3 First, Dr. Lifrak is not a treating source, and,
3 To the extent Plaintiff attempts to challenge the ALJ’s assessment as it relates to
the portion of the opinion related to Plaintiffs ability to sit, stand, and walk, any
error would not require remand because the RFC found that Plaintiff had greater
limitations than opined. (Compare Tr. at 913, with Tr. at 17). Thus, any error related
29
Case 8:21-cv-00601-MRM Document 25 Filed 09/06/22 Page 30 of 32 PagelD 2009
therefore, any opinion by Dr. Lifrak is not entitled to a specific weight. See
Stollenwerk v. Astrue, No. 2:ll-cv-504-FtM-JES, 2012 WL 2116118, at *5 (M.D. Fla.
May 17, 2012), report and recommendation adopted, 2012 WL 2116141 (M.D. Fla. June
11, 2012) (citing, inter alia, 20 C.F.R. §§ 404.1502, 404.1527(d)(1), (2) to support the
proposition that an opinion by a non-treating physician was not entitled to any
specific deference). Moreover, the records cited by the ALJ support his finding.
Specifically, the records show normal strength and tone in both upper extremities.
{See Tr. at 1386, 1667). Additionally, the ALJ cited to this record as an example.
{See id. at 22). Other evidence in the record shows similar findings to those cited by
the ALJ here. {See, e.g., id. at 561, 1112-13, 1269-70, 1672-73). These normal
objective findings are facially inconsistent with the extreme limitations opined by Dr.
Lifrak. Given that the opinion is not supported by the objective evidence of record,
the ALJ did not err in affording the opinion limited weight.
Although Plaintiff asserts that other evidence—both in the specific record cited
by the ALJ and elsewhere in the record—undermines the ALJ’s decision to afford
limited weight to these opinions, it is not for the Court to reweigh the evidence or
decide the facts anew. Winschel, 631 F.3d at 1178. Thus, even if the evidence
preponderates against the Commissioner’s findings, a court must affirm the decision
if it is supported by substantial evidence. Crawford, 363 F.3d at 1158. As noted
to the ALJ’s assessment of that portion of the opinion would be harmless. See
Denomme, 518 F. App’x at 877 (citing Diorio, 721 F.2d at 728).
30
■t
Case 8:21-cv-00601-MRM Document 25 Filed 09/06/22 Page 31 of 32 PagelD 2010
above, the ALJ here provided specific records to support his finding. Thus, the
Court finds the assessment of Dr. Lifrak’s opinions to be supported by substantial
evidence.
In sum, the Court finds no error in the ALJ’s assessment of the opinion
evidence of record. As a result, the Court finds that the ALJ’s decision is supported
by substantial evidence and, therefore, due to be affirmed.
VI,
Conclusion
Upon consideration of the parties’ submissions and the administrative record,
the Court finds that the ALJ’s decision is supported by substantial evidence.
Accordingly, the Court ORDERS that;
1.
The decision of the Commissioner is AFFIRMED pursuant to sentence
four of42U.S.C.§ 405(g).
2.
The Clerk of Court is directed to enter judgment accordingly, to
terminate any pending motions and deadlines, and to close the case.
DONE AND ORDERED in Tampa, Florida on September 6,2022.
Mac R. McCoy
United States Magistrate Judge
Copies furnished to:
Counsel of Record
31
Case 8:21-cv-00601-MRM Document 25 Filed 09/06/22 Page 32 of 32 PagelD 2011
Unrepresented Parties
32
Appendix A
rjzrAj
$xs>-‘ of Delaware
Department of Labor
Division of Unemployment Insurance
Notice of
Determination
UC-409
fV e.-*
LABOR
8S Number: *'*-"-0600
Claimant ELISHA GRESHAM
Address 130 HALCYON DRIVE
NEW CASTLE DE 1S720
Local Office; 1
Fond Cade: 10
Claim Date: 01/17/2016
Delivered by Mail
Radet: No
Count: Yes
Date Of AC:
Case Number: 1101896S
m providec medico, documentation indicate she istotally disabled
Findings of Fact:
The claimant filed for benefits effective o .i ■. 7-20. 6 Tneciatma
Tne medics- documentation indicates the claimant has limitation.
until she provided medical documentation indicating she is
Rased on the information obtained the clamant is mei.g.ble for b. nefrts
aote ana ajaiiaDie to. worn with no .inflations and reopens her c^tm.
actively seeking worn. provided, however that an emp. y ■
following the last day the employee worked, except that the
woo ,s temporarily m.d off for a period of not
Charges or retooling shall be 63 calendar days. Shan, during
period for these employees of employers who dose' ***t said, moiovee shallbe available to return to work upon 3 days nonce of
said period, oe deemed to be available ,or wo.k.
'"Employer notified the Department In writing or tne Department
ineligible
Youare'tne^gfoie for receipt of benefits, effective with or for week sndfng 01/23/2016.
Date: 02/12/2016
Senior Deputy Signature:
--------------------- -------------------------------------f you disagree with tht, d^m^.on. you should ,.Mh. Cta=35 duty for an .xptaatlon. « you are notched with theexp^on.
^OU may fito
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iIMPORTANTEl Hay informaclOn adiclonal on la parte posterior de este documento.
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Claimant Copy
DELAWARE
DEPARTMENT OF
LABOR
Delaware Division of Unemployment Insurance
Case No: 11018966
Te1y/F°°mbSA hereby certify that today, 02/12/2016,1 mailed a true and correct copy of the Claims
Deputy/Agency Representative decision in the above-referenced matter by first class mail:
ELISHA GRESHAM
130 HALCYON DRIVE
NEW CASTLE DE 197.20
/
Claims Deputy/Agency Representative
Appendix B
i n. sumin immwHUKft
\Sk Kefert*
Elisha!.. Gresham
Office of i learings Operations
SSA OHO HEARING OFC
2ND FLOOR SUITE 200
500 W LOOCKh'RMAN ST
DOVER. DE 19904-3296
Tel: 877-405-3671
Fax:302-674-7024
April 2.3, 2019
Elisha L. Gresham
130 Halcyon Drive
New Castle, DE 19720
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1
Dear Elisha L. Gresham:
The Appeals Council returned your case to us for further action. This letter explains the hearing process and things
that you should do now to get ready for your hearing. We will send you a notice after we schedule your hearing. We
will notify von at least 75 days before the date of your hearing, The notice will provide you with die time and place
of your hearing. We generally process requests for hearing by date order, with the oldest: receiving priority.
However, we expedite cases returned from the Appeals Council. We will schedule your hearing as soon as we can.
which may take several months.
t,se of Video Teleconferencing (VTCf At Your Hearing
In certain situations, we hold your hearing by VTC rather than in person. We will let you know ahead of time ifwc
schedule your hearing by VTC.
if we schedule your appearance by VTC. you and the ALJ will be at different locations during the hearing. A large,
color monitor will enable you and the ALJ to see, hear, and speak to each other. The ALJ will also be able to see,
hear, and speak to anyone who comes with you to the hearing. This may include your representative (if you have
one), a friend, or a family member. We will provide someone al your location to run the equipment and provide any
other help you may need.
You must let us know within 30 days after the date you receive this notice if you do not want to appear at
your hearing hy VTC, (We may extend the 30-day period if you show you had good cause tor missing the
deadline.) Please let os know by completing and returning the attached form in the envelope we sent yon. We
will arrange tor you lo appear in person.
If you move before we hold your bearing, we retain the right to decide how you will appear at your hearing, even if
yoti objected to appearing by VTC. For us to consider your change of residence when we schedule your hearing, you
must, submit evidence proving your new residence.
The Hearing
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Suspect Social Security Fraud? Please visit http://oig.ssa.gOv/r or call the Inspector General’s Fraud Hotline
at 1-80(1-269-0271 (TTY 1-866-501-2101).
Form HA-1.2 0)4-2015)
Claimant
See Next Page
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Elisha L. Gresham
Page 3 of 3
If You Have Any Questions or Your Address Changes
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!(you have any questions, please call or write us. You roust tel! us if you change your address. For your
convenience, we gave vow our telephone number and address on the first page of this letter.
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Sincerely yours.
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Karen Patterson
Hearing Office .Director
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Enclosures:
HA-55 (Objection to Appearing by Video Teleconferencing)
HA-L4 (What Happens Next)
SSA Publication No. 70-067 (Why You Should Have Your Hearing By Video)
HA-827 (Medical Release Notice)
SSA-827 (Authorization to .Disclose Information to SSA)
HA-L I (Important Notice .Regarding Representation)
SSA Publication No, 05-10075 (Your Right To Representation)
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Form HA-U (04-2015)
Claimant
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Case 8:21-cv-00601-MRM Document 6
Filed 03/16/21 Page 1 of 2 PagelD 18
Appendix C
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ELISHA L. GRESHAM,
Plaintiff,
v.
Case No. 8:21-cv-601-KKM-AEP
ANDREW M. SAUL,
Commissioner of Social Security,
Defendant.
ORDER
This cause comes before the Court upon Plaintiffs Application to Proceed in
District Court without Prepaying Fees or Costs (Doc. 2). Upon review, it is hereby
ORDERED:
1. Plaintiffs Application to Proceed in District Court without Prepaying
Fees or Costs (Doc. 2) is GRANTED.
2. To the extent not already done so, Plaintiff is directed to complete and
return the “Summons in a Civil Action” forms and the “USM-285” forms to the
Clerk within twenty-one (21) days,1 whereupon the United States Marshal is
directed to serve the summonses upon the appropriate parties.
1 These forms are on this Court’s website at http'//www.flmd.uscourts.gov. The
Summons form, listed as “Summons in a Civil Action,” or Form AO 440, can be found at
the “Filing a Case” section, “Forms” subsection, of the website. The USM-285 form, listed
as “Process Receipt and Return,” can be found at the “Filing a Case” section, “Form”
subsection, and then selecting “Marshal Forms” from the drop-down menu entitled
Case S:21-cv-00601-MRM Document 6 Filed 03/16/21 Page 2 of 2 PagelD 19
DONE AND ORDERED in Tampa, Florida, on this 16th day of Match,
2021.
■'$.
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ANThONV E, FGRCElLI
Unusci
Ma^&uste Judge;
cc: Counsel of Record
“Choose Form Type.” If Plaintiff does not have access to the internet to download these
forms, Plaintiff may obtain the forms by contacting the Clerk’s Office at (813) 301-5400.
2
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.