Petition for Writ of Certiorari — Elisha L. Gresham, Petitioner v. Martin J. O'Malley, Commissioner of Social Security

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Appendix 6

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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

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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—

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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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Case 8:21-cv-00601-MRM Document 25 Filed 09/06/22 Page 11 of 32 PagelD 1990

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

11

Case 8:21-cv-00601-MRM Document 25 Filed 09/06/22 Page 12 of 32 PagelD 1991

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

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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

i

iIMPORTANTEl Hay informaclOn adiclonal on la parte posterior de este documento.

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b*c£*J}*£ final an

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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

H

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.

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