Cabrera v. Commissioner of Social Security
OPINION AND ORDER. The decision of the Commissioner is AFFIRMED. The Clerk of the Court is directed to enter judgment consistent with this opinion and, thereafter, to close the file. Signed by Magistrate Judge Douglas N. Frazier on 9/19/2016. (CAS)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
LUIS PEREZ CABRERA,
Case No: 6:15-cv-1145-Orl-DNF
CAROLYN COLVIN, ACTING
COMMISSIONER OF SOCIAL
OPINION AND ORDER
Plaintiff, Luis Perez Cabrera, seeks judicial review of the final decision of the
Commissioner of the Social Security Administration (“SSA”) denying his claim for a period of
disability and disability insurance benefits (“DIB”). The Commissioner filed the Transcript of the
proceedings (hereinafter referred to as “Tr.” followed by the appropriate page number), and the
parties filed legal memoranda in support of their positions. For the reasons set out herein, the
decision of the Commissioner is AFFIRMED pursuant to § 205(g) of the Social Security Act, 42
U.S.C. § 405(g).
Social Security Act Eligibility, Standard of Review, Procedural History, and the
A. 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 which can be expected to result in
death or which has lasted or can be expected to last for a continuous period of not less than twelve
months. 42 U.S.C. §§ 416(i), 423(d)(1)(A), 1382(a)(3)(A); 20 C.F.R. §§ 404.1505, 416.905. The
impairment must be severe, making the claimant unable to do his previous work, or any other
substantial gainful activity which exists in the national economy. 42 U.S.C. §§ 423(d)(2),
1382(a)(3); 20 C.F.R. §§ 404.1505-404.1511, 416.905-416.911.
B. Standard of Review
The Commissioner’s findings of fact are conclusive if supported by substantial evidence.
42 U.S.C. § 405 (g). “Substantial evidence is more than a scintilla and is such relevant evidence
as a reasonable person would accept as adequate support to a conclusion. Even if the evidence
preponderated against the Commissioner’s findings, we must affirm if the decision reached is
supported by substantial evidence.” Crawford v. Comm’r, 363 F.3d 1155, 1158 (11th Cir. 2004)
(citing Lewis v. Callahan, 125 F.3d 1436, 1439 (11th Cir. 1997)); Martin v. Sullivan, 894 F.2d
1520, 1529 (11th Cir. 1990). In conducting this review, this Court may not reweigh the evidence
or substitute its judgment for that of the ALJ, but must consider the evidence as a whole, taking
into account evidence favorable as well as unfavorable to the decision. Martin v. Sullivan, 894
F.2d 1329, 1330 (11th Cir. 2002); Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995). However,
the District Court will reverse the Commissioner’s decision on plenary review if the decision
applied incorrect law, or if the decision fails to provide sufficient reasoning to determine that the
Commissioner properly applied the law. Keeton v. Dep’t of Health & Human Servs., 21 F.3d 1064,
1066 (11th Cir. 1994).
The Court reviews de novo the conclusions of law made by the
Commissioner of Social Security in a disability benefits case. Social Security Act, § 205(g), 42
U.S.C. § 405(g).
The ALJ must follow five steps in evaluating a claim of disability. 20 C.F.R. §§ 404.1520,
416.920. At step one, the claimant must prove that he is not undertaking substantial gainful
Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001), see 20 C.F.R. §
404.1520(a)(4)(i). If a claimant is engaging in any substantial gainful activity, he will be found
not disabled. 20 C.F.R. § 404.1520(a)(4)(i).
At step two, the claimant must prove that he is suffering from a severe impairment or
combination of impairments. Doughty, 245 F.3d at 1278, 20 C.F.R. § 1520(a)(4)(ii). If the
claimant’s impairment or combination of impairments does not significantly limit his physical or
mental ability to do basic work activities, the ALJ will find that the impairment is not severe, and
the claimant will be found not disabled. 20 C.F.R. § 1520(c).
At step three, the claimant must prove that his impairment meets or equals one of
impairments listed in 20 C.F.R. Pt. 404, Subpt. P. App. 1; Doughty, 245 F.3d at 1278; 20 C.F.R. §
1520(a)(4)(iii). If he meets this burden, he will be considered disabled without consideration of
age, education and work experience. Doughty, 245 F.3d at 1278.
At step four, if the claimant cannot prove that his impairment meets or equals one of the
impairments listed in Appendix 1, he must prove that his impairment prevents him from
performing his past relevant work. Id. At this step, the ALJ will consider the claimant’s RFC and
compare it with the physical and mental demands of his past relevant work. 20 C.F.R. §
1520(a)(4)(iv), 20 C.F.R. § 1520(f). If the claimant can still perform his past relevant work, then
he will not be found disabled. Id.
At step five, the burden shifts to the Commissioner to prove that the claimant is capable of
performing other work available in the national economy, considering the claimant’s RFC, age,
education, and past work experience. Doughty, 245 F.3d at 1278; 20 C.F.R. § 1520(a)(4)(v). If
the claimant is capable of performing other work, he will be found not disabled. Id. In determining
whether the Commissioner has met this burden, the ALJ must develop a full and fair record
regarding the vocational opportunities available to the claimant. Allen v. Sullivan, 880 F.2d 1200,
1201 (11th Cir. 1989). There are two ways in which the ALJ may make this determination. The
first is by applying the Medical Vocational Guidelines (“the Grids”), and the second is by the use
of a vocational expert (“VE”). Phillips v. Barnhart, 357 F.3d 1232, 1239 (11th Cir. 2004). Only
after the Commissioner meets this burden does the burden shift back to the claimant to show that
he is not capable of performing the “other work” as set forth by the Commissioner. Doughty v.
Apfel, 245 F.3d 1274, 1278 n.2 (11th Cir. 2001).
C. Procedural History
Plaintiff filed an application for a period of disability and DIB on February 7, 2012,
alleging disability beginning September 18, 2011. (Tr. 177-85). Plaintiff’s application was denied
initially on May 22, 2012, and upon reconsideration on July 18, 2012. (Tr. 100-04, 109-10). At
Plaintiff’s request, an administrative hearing was held before Administrative Law Judge Philemina
M. Jones (the “ALJ”) on August 6, 2013. (Tr. 30-69). On February 28, 2014, the ALJ entered a
decision finding that Plaintiff was not under a disability at any time from September 18, 2011,
through the date of the decision. (Tr. 14-28). Plaintiff appealed the ALJ’s decision and the
Appeals Council denied Plaintiff’s request for review on June 12, 2015. (Tr. 1-3). Plaintiff
initiated the instant action by filing a Complaint (Doc. 1) on July 15, 2015. The parties having
filed memoranda setting forth their respective positions, this case is ripe for review.
D. Summary of the ALJ’s Decision
At step one of the sequential evaluation, the ALJ found that Plaintiff had not engaged in
substantial gainful activity from September 2011 to February 2012. (Tr. 16). The ALJ explained,
however, that despite the claimant’s earning at above substantial gainful activity levels since the
alleged onset date, the case was not being decided at step one of the sequential evaluation process.
(Tr. 16). At step two, the ALJ found that Plaintiff had one severe impairments: degenerative disc
disease with back pain, history of left arm fracture, obesity, and affective disorder. (Tr. 16). At
step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments
that meets or medically equals the severity of any of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1. (Tr. 16-17).
Before proceeding to step four, the ALJ found that Plaintiff had the residual functional
capacity (“RFC”) to
perform light work as defined in 20 CFR 404.1567(b) except he can
occasionally push and pull with left arm and reach with left arm, which is
the non-dominant arm. He can perform activities that can be learned in 30
days or less, with minimal supervision. The claimant can cooperate with
the public and coworkers in completing these talks which can be
performed over and over during an 8 hour day.
(Tr. 18). At step four, the ALJ found that Plaintiff was unable to perform his past relevant work
as a collection clerk. (Tr. 21). At step five, the ALJ relied on the testimony to find that given
Plaintiff’s age, education, work experience, and RFC, there are jobs that exist in significant
numbers in the national economy that Plaintiff can perform. (Tr. 22). Specifically, the ALJ found
that Plaintiff could perform the work requirements of “housekeeping cleaner” and “fast food
worker.” (Tr. 22). The ALJ concluded that Plaintiff has not been under a disability from
September 18, 2011, the alleged onset date, through February 28, 2014, the date of the ALJ’s
decision. (Tr. 23).
Plaintiff raises three issues on appeal: (1) whether the ALJ erred by not obtaining treating
physician Dr. Trevett’s written opinion concerning limitations; (2) whether the ALJ erred by
according “great weight” to the opinion of state agency physician Loc Kim Le, M.D.; and (3)
whether the ALJ erred by propounding a hypothetical question to the VE that did not properly
account for Plaintiff’s moderate inability to maintain concentration, persistence, or pace. The
Court will address each issue in turn.
a) Whether the ALJ erred by not obtaining treating physician Mildred Trevett,
M.D.’s written opinion concerning limitations.
The record shows that on February 13, 2013, Plaintiff’s treating physician, Dr. Trevett
completed a form “requested by pt. Lawyer.” (Tr. 1100). Dr. Trevett completed the form, noting
her ability to complete the form was “limited bc we do not have PT equipment for a real eval; form
was fill up in bases on pt statements.” (Tr. 1100). The form that was completed by Dr. Trevett is
not in the record.
Plaintiff contends that this “form” contains “what almost certainly is” Dr. Trevett’s opinion
as to Plaintiff’s physical limitations. (Doc. 17 p. 14). Plaintiff acknowledges that there is no
“100% proof that this documents addresses” Plaintiff’s physical limitations, “the overwhelming
presumptions is that this document does indeed address [Plaintiff’s] physical restrictions” because
it was submitted to Dr. Trevett from Plaintiff’s “lawyer.” (Doc. 17 p. 14). Plaintiff argues that
the ALJ’s failure to secure this form constitutes reversible error because the ALJ did not fully and
fairly develop the record. (Doc. 17 p. 15).
Defendant responds that the ALJ developed a full and fair record and that the ALJ did not
err by failing to secure the form completed on February 13, 2013. (Doc. 17 p. 17). Defendant
argues that the medical evidence outlined in the decision was sufficient for the ALJ to make a
decision as to disability, and the ALJ was not further required to develop the record. (Doc. 17 p.
An ALJ has a basic obligation to develop a full and fair record, even where the claimant
was represented by counsel. See Brown v. Shalala, 44 F.3d 931, 934-35 (11th Cir. 1995). While
the ALJ has a basic duty to develop a full and fair record, Plaintiff maintains the burden of proving
disability under the Act and producing evidence in support of his claim. Graham v. Apfel, 129
F.3d 1420, 1422 (11th Cir. 1997). Further, a plaintiff is required to show prejudice from lack of
development of a record before a case will be remanded for further development. Id. at 1423. The
record must reveal evidentiary gaps which result in unfairness or clear prejudice. Leslie v. Astrue,
2008 WL 54395, at *1 (M.D. Fla. Jan. 2, 2008) (citing Smith v. Schweiker, 677 F.2d 826, 830 (11th
Cir. 1982)). Whether to recontact a treating source is a matter of ALJ discretion. See 20 C.F.R. §
Here, the Court finds that the ALJ did not fail to perform his duty to fully and fairly develop
the record by failing to secure the form completed by Dr. Trevett on February 13, 2013. The record
includes medical evidence from several treating and examining physicians over the entire relevant
period and objective exam findings related to each of Plaintiff’s disabling conditions.
Defendant notes, none of Plaintiff’s physicians opined any work-related limitations in excess of
the RFC for a modified range of light work, as found by the ALJ.
In addition, the record makes it clear that the missing form was completed on the basis of
Plaintiff’s subjective complaints. The ALJ rejected Plaintiff’s subjective complaints as not
credible, a finding that Plaintiff has not challenged upon review. (Tr. 19). Plaintiff has failed to
show how he was prejudiced by the missing form, especially given Plaintiff’s acknowledgment
that he does not know whether the form contains Dr. Trevett’s opinion as to Plaintiff’s physical
In essence, Plaintiff is requesting the Court to remand the case because the ALJ failed to
secure a form that is mentioned in one sentence in the 1100 page transcript. The Court rejects this
argument and finds no error in the ALJ’s development of the record.
b) Whether the ALJ erred by according “great weight” to the opinion of state agency
physician Loc Kim Le, M.D.
Plaintiff argues that the ALJ erred in according “great weight” to state medical consultant
Dr. Loc Kim Le, because Dr. Le’s opinion was rendered prior to Plaintiff developing additional
disabling medical conditions, including knee osteoarthritis and diabetes.
(Doc. 17 p. 19).
Defendant argues that Plaintiff has failed to show that these additional impairments would cause
limitations beyond those already incorporated in the RFC determination. (Doc. 17 p. 27).
The record shows that Dr. Le completed an RFC evaluation of Plaintiff on July 16, 2012.
(Tr. 93-94). Dr. Le found that Plaintff could perform work with medium exertional limitations.
(Tr. 93-94). Dr. Le found Plaintiff could occasionally lift and/or carry 50 pounds, frequently lift
and/or carry 25 pounds, stand and/or walk for a total of 6 hours in an 8-hour workday, sit for a
total of 6 hours in an 8-hour workday, and was unlimited in his ability to push and/or pull. (Tr.
93-94). Dr. Le reviewed records from Dr. Trevett through June 1, 2012, in performing the RFC
evaluation. (Tr. 94).
Subsequent to Dr. Le’s opinion, on February 8, 2013, Plaintiff visited Dr. Trevett. (Tr.
1090). Plaintiff complained of left knee pain, on and off, worse with weight bearing and
complained of gradual onset of daily episodes of moderate excessive sweating all over the body
with flush sensation intermittently. (Tr. 1090). Plaintiff also complained of worsening energy
levels, concentration, and feeling tired. (Tr. 1090). On examination, Dr. Trevett noted left knee
range of motion limitation, tenderness at palpitation, and mild swelling. (Tr. 1090). Dr. Trevett
also noted mild swelling of the right leg and venuous stasis disc of LES. (Tr. 1092). Dr. Trevett
diagnosed Plaintiff with localized osteoarthritis of the knee and diabetes mellitus. (Tr. 1091).
On February 13, 2013, Plaintiff returned to Dr. Trevett. (Tr. 1098). Plaintiff complained
of constant left knee pain and not being able to stand, sit or walk more than 30 minutes. (Tr. 1098).
Dr. Trevett’s examination showed left knee range of motion limitation and crepitus heard in the
left knee with mild swelling.
Dr. Trevett diagnosed Plaintiff with localized
osteoarthritis of the knee. (Tr. 1100).
In her decision, the ALJ explained her reasoning for according great weight to Dr. Le’s
opinion (which is referred to by the ALJ below as Exhibit 4A) as follows:
As for the opinion evidence, the undersigned afford great weight to the
findings and opinions of the state consultant in Exhibits 2A and 4A
because they are consistent with the overall evidence that reveal normal
physical and mental health findings as well as the claimant’s consistent
denials for back and join pain and depression and anxiety. Additionally,
the consultant’s findings are consistent with the claimant’s reported
ADL’s that evidences his ability to sufficiently concentrate to operate
motor vehicles, watch television, play a guitar, and pay bills. Similarly,
the consultant’s findings are consistent with Exhibit 13F, which
documents orthopedic surgeon Francisco Noda’s statements that the
claimant has excellent left arm functioning and recommendation to
perform all activities of daily living. No weight is given to the assessment
in 2A which is not from a doctor.
In this case, the Court finds no error in the ALJ’s decision to great weigh to the opinion of
Dr. Le. “State agency medical and psychological consultants are highly qualified physicians and
psychologists who are experts in the evaluation of the medical issues in a disability claim under
the Act.” Social Security Ruling 96-6p. The ALJ stated that she gave great weight to Dr. Le’s
opinion because it was consistent with Plaintiff’s record showing normal physical and mental
health findings and his report of daily activities of daily living. The record shows that Plaintiff
consistently denied musculoskeletal symptoms, including joint pain, neck pain, and back pain, and
his physical examinations revealed normal back and extremity findings, including negative straight
leg raise tests bilaterally. (Tr. 19, 770, 815-16, 819-20, 848-49, 854, 997-98, 1001, 1053-55, 1060,
1074, 1083, 1088).
The fact that Dr. Le’s opinion was given before Plaintiff’s diagnoses for localized
osteoarthritis of the knee and diabetes mellitus does not make the ALJ’s reliance on Dr. Le’s
opinion erroneous. As Defendant notes, the mere diagnosis of an impairment says nothing about
its severity or limiting effects. See Moore v. Barnhart, 405 F.3d 1208, 1213 n. 6 (11th Cir. 2005).
Plaintiff has failed to show how these diagnoses cause limitations greater than those opined by Dr.
Le and adopted by the ALJ. Without such a showing, the Court cannot find that the ALJ’s reliance
on Dr. Le’s opinion was improper. Accordingly, the Court affirms the ALJ’s decision to accord
Dr. Le’s opinion great weight.
c) Whether the ALJ erred by propounding a hypothetical question to the VE that
did not properly account for Plaintiff’s moderate inability to maintain
concentration, persistence, or pace.
At the Administrative Hearing, the ALJ asked the VE to consider a “hypothetical
individual” with Plaintiff’s “age, education, past work” who could “perform light work” and “jobs
that could be learned in 30 days or less with minimal supervision . . .[h]e could cooperate with the
public and coworkers in completing these tasks, which should be performed over and over during
an eight-hour workday,” and he could “only push and pull with the left arm and reach with the left
arm.” (Tr. 65).
Citing Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1180-81 (11th Cir. 2011), Plaintiff
argues that the ALJ erred because the hypothetical question failed to properly addressed Plaintiff’s
moderate inability to maintain concentration, persistence, or pace. (Doc. 17 p. 28). Defendant
refutes this claim.
In Winschel, the Eleventh Circuit explained “that an ALJ does not account for a claimant’s
limitations in concentration, persistence, and pace by restricting the hypothetical question to
simple, routine tasks or unskilled work.” 631 F.3d at 1180. If, however, the medical evidence
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demonstrates that a claimant’s ability to work is unaffected by the limitation or the limitation is
implicitly accounted for in the hypothetical, remand is inappropriate. Id. at 1181. In other words,
“[a]n ALJ's hypothetical question restricting the claimant to simple and routine tasks adequately
accounts for restrictions related to concentration, persistence, and pace where the medical evidence
demonstrates that the claimant retains the ability to perform the tasks despite limitations in
concentration, persistence, and pace.” Timmons v. Comm'r of Soc. Sec., 522 F. App'x 897, 907
(11th Cir. 2013).
Here, the Court finds that the hypothetical posed to the VE sufficiently accounted for
Plaintiff’s moderate limitation in concentration, persistence or pace. The ALJ’s hypothetical
question did not merely specify the individual was limited to simple and routine tasks, but
contained the additional limitations that the jobs that could be learned in 30 days or less with
minimal supervision and that Plaintiff could cooperate with the public and coworkers in
completing these tasks, which should be performed over and over during an eight-hour workday.
(Tr. 65). Plaintiff has failed to show that his moderate limitation in concentration, persistence, or
pace caused any additional limitations to his ability to work. Accordingly, the Court rejects
Plaintiff’s argument that the hypothetical question failed to account for Plaintiff’s moderate
limitation in concentration, persistence or pace.
The decision of the Commissioner is AFFIRMED. The Clerk of the Court is directed to
enter judgment consistent with this opinion and, thereafter, to close the file.
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DONE and ORDERED in Fort Myers, Florida on September 19, 2016.
Copies furnished to:
Counsel of Record
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