Virgin v. Commissioner of Social Security

Filing 18

OPINION AND ORDER affirming the decision of the Commissioner. The Clerk of Court is directed to enter judgment accordingly, terminate any pending motions and deadlines, and close the case. Signed by Magistrate Judge Mac R. McCoy on 9/27/2017. (JTM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
MICHAEL T. VIRGIN,
Plaintiff,
v.

Case No: 6:16-cv-763-Orl-MRM

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
/
OPINION AND ORDER
This cause comes before the Court on Plaintiff Michael T. Virgin’s Complaint (Doc. 1)
filed on May 4, 2016. Plaintiff seeks judicial review of the final decision of the Commissioner
of the Social Security Administration (“SSA”) denying his claims for a period of disability and
disability insurance benefits. 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).
I.

Social Security Act Eligibility, Procedural History, the ALJ’s Decision, and
Standard of Review
A.

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 continuous period of not less than twelve
months. 42 U.S.C. §§ 416(i), 423(d)(1)(A); 20 C.F.R. § 404.1505. The impairment must be

severe, making the claimant unable to do his previous work, or any other substantial gainful
activity that exists in the national economy. 42 U.S.C. § 423(d)(2); 20 C.F.R. §§ 404.1505 404.1511. 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).
B.

Procedural History

On June 15, 2011, Plaintiff filed an application for a period of disability and disability
insurance benefits. (Tr. at 191). Plaintiff had a previous application denied by an Administrative
Law Judge (“ALJ”) on October 29, 2009. (Tr. at 68-82). As a result, Plaintiff’s current
application asserted an onset date of October 30, 2009. (Tr. at 191). Plaintiff’s application was
denied initially on July 29, 2011, (Tr. at 102), and upon reconsideration on September 22, 2011,
(Tr. at 117). A video hearing was held before ALJ George Gaffney on December 5, 2012. (Tr.
at 30-67). The ALJ issued an unfavorable decision on January 2, 2013. (Tr. at 13-29). The ALJ
found Plaintiff not to be under a disability from October 30, 2009 through December 31, 2009,
the date last insured. (Tr. at 25).
On March 7, 2016, the Appeals Council denied Plaintiff’s request for review. (Tr. at 17). Plaintiff filed a Complaint (Doc. 1) in this Court on May 4, 2016. Defendant filed an
Answer (Doc. 8) on July 12, 2016. The parties filed a Joint Memorandum. (Doc. 17). The
parties consented to proceed before a United States Magistrate Judge for all proceedings. (See
Doc. 13). This case is ripe for review.
C.

Summary of the ALJ’s Decision

An ALJ must follow a five-step sequential evaluation process to determine if a claimant
has proven that he is disabled. Packer v. Comm’r of Soc. Sec., 542 F. App’x 890, 891 (11th Cir.

2

2013) (citing Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999)). 1 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) has the residual functional capacity (“RFC”) to perform his
past relevant work; and (5) can perform other work of the sort 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 of Soc. Sec., 511 F. App’x 913, 915 n.2 (11th Cir. 2013).
The ALJ found that Plaintiff met the insured status requirements through December 31,
2009. (Tr. at 17). At step one of the sequential evaluation, the ALJ found that Plaintiff had not
engaged in substantial gainful activity since October 30, 2009, the alleged onset date, through
December 31, 2009, the date last insured. (Tr. at 17). At step two, the ALJ found that Plaintiff
suffered from the following severe impairments through the date last insured: “degenerative disc
disease of the lumbar spine status post fusion, degenerative joint disease of the bilateral knees
status post left femur fracture, and obesity.” (Tr. at 17). At step three, the ALJ determined that
Plaintiff did not have an impairment or combination of impairments that meets or medically
equals 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, 404.1526). (Tr. at 19).
Based on the evidence, the ALJ determined that Plaintiff had the RFC to perform “a
range of light work.” (Tr. at 20). In terms of exertional limitations, the ALJ found:

1

Unpublished opinions may be cited as persuasive on a particular point. The Court does not rely
on unpublished opinions as precedent. Citation to unpublished opinions on or after January 1,
2007 is expressly permitted under Rule 31.1, Fed. R. App. P. Unpublished opinions may be
cited as persuasive authority pursuant to the Eleventh Circuit Rules. 11th Cir. R. 36-2.

3

[Plaintiff] is limited to only occasional lifting of twenty pounds and frequent lifting
of ten pounds, standing six hours in an eight-hour workday, and sitting six hours in
an eight-hour workday. [Plaintiff] is limited to only walking thirty minutes at a
time. Regarding nonexertional limitations, [Plaintiff] is limited to only occasional
stair climbing, stooping, balancing, kneeling, crouching, crawling, or ladder
climbing.
(Tr. at 20) (footnotes omitted).
At step four, the ALJ determined that, through the date last insured, Plaintiff was capable
of performing his past relevant work as a file clerk. (Tr. at 25). The ALJ stated that this work
did not require the performance of work-related activities precluded by Plaintiff’s RFC. (Tr. at
25). The ALJ found that, in comparing Plaintiff’s RFC with the physical demands of this work,
Plaintiff is able to perform it as actually and generally performed. (Tr. at 25).
Because the ALJ found Plaintiff could perform past relevant work at step four, the ALJ
did not make findings at step five. (See Tr. at 25). Accordingly, the ALJ concluded that Plaintiff
was not under a disability at any time from October 30, 2009, the alleged onset date, through
December 31, 2009, the date last insured. (Tr. at 25).
D.

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 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, 67 F.3d 1553, 1560 (11th Cir. 1995) (citing Walden v. Schweiker, 672 F.2d 835,
838 (11th Cir. 1982); Richardson, 402 U.S. at 401).

4

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) (stating that the court must
scrutinize the entire record to determine reasonableness of factual findings).
II.

Analysis
Plaintiff raises one issue on appeal, “[w]hether the ALJ erred in assessing Plaintiff’s
residual functional capacity by giving little weight to the opinions of Plaintiff’s treating pain
management doctors.” (Doc. 17 at 18). Plaintiff contends that the ALJ improperly discounted
the opinions of (1) S. Farhan Zaidi, M.D. and (2) Joseph M. Brooks, M.D. (Id.).
A.

Legal Standards

Medical opinions are statements from physicians, psychologists, or other acceptable
medical sources that reflect judgments about the nature and severity of impairments, including
symptoms, diagnosis and prognosis, 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 factors an ALJ must consider include: (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,

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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-cv646-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 ALJ must state with
particularity the weight given to different medical opinions and the reasons therefor. Winschel v.
Comm’r of Soc. 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)).
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 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. 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 Sharfarz v. Bowen, 825 F.2d 278, 280
(11th Cir. 1987)).

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B.

The ALJ’s Review of the Opinion Evidence
1.

S. Farhan Zaidi, M.D.

Plaintiff contends that the ALJ erred in his review of Dr. Zaidi’s opinion. (Doc. 17 at
18). Plaintiff states that Dr. Zaidi began treating his chronic neck and low back pain on
September 20, 2012. (Id. at 20 (citing Tr. at 423)). Plaintiff states that Dr. Zaidi gave an opinion
for Plaintiff’s restrictions for the period starting October 30, 2009 through November 15, 2012.
(Id.). Plaintiff argues that “[t]he ALJ never considered that Dr. Zaidi’s retrospective opinion was
entitled to more weight because he worked at the [same medical treatment center] where Plaintiff
had been receiving treatment for his degenerative disc and joint disease since 2005.” (Id.).
Plaintiff argues that “Dr. Zaidi knew and worked with all of Plaintiff’s previous surgeons and
pain management specialists.” (Id.).
Additionally, Plaintiff takes issue with the weight the ALJ gave to Dr. Zaidi’s opinion.
(See id. at 22). Plaintiff argues that the reasons the ALJ gave for not giving Dr. Zaidi’s opinion
controlling weight are not supported by substantial evidence. (See id.). Specifically, Plaintiff
notes that the ALJ found that Dr. Zaidi’s opinion was “not entitled to controlling weight because
it is inconsistent with other substantial evidence in record; specifically, clinical examination
findings and additional opinion evidence.” (Id. (citing Tr. at 24)). Plaintiff points out that the
ALJ cited three pieces of evidence in support of this finding: (1) Exhibit B3A – the initial denial
by a single decision maker (“SDM”); (2) Exhibit B5A – the denial on reconsideration by P.S.
Krishnamurthy, M.D., a state agency non-examining physician; and (3) the ALJ’s own findings
in Section 5(A) of his decision – i.e., the ALJ’s findings and analysis that the medical evidence
in record establishes that Plaintiff’s RFC is within the light exertional level. (Id. (citing Tr. at
24)). Plaintiff argues that none of these pass muster. (See id.).

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Specifically, Plaintiff argues that the SDM’s opinion is not a medical opinion and, thus,
cannot be substantial evidence. (Id.). Plaintiff contends that Dr. Krishnamurthy’s opinion
should be discounted because the doctor never saw Dr. Zaidi’s retrospective opinion dated
November 15, 2012. (Id.). Moreover, Plaintiff argues that the ALJ selectively cited normal
findings in Section 5(A) of his decision while ignoring Dr. Brooks’ opinion and other findings
from Plaintiff’s orthopedic surgeon. (Id. at 24). Plaintiff further argues that the ALJ erred by
giving more weight to Dr. Krishnamurthy’s opinion than Dr. Zaidi’s opinion. (Id. at 28).
Furthermore, Plaintiff argues that “[t]he ALJ failed to follow the guidelines of 20 C.F.R.
§404.1527(c) when evaluating Dr. Zaidi’s opinion” because “[w]hile the ALJ acknowledged Dr.
Zaidi was a treating physician, he did not give Dr. Zaidi’s opinion any deference nor did the ALJ
acknowledge Dr. Zaidi’s specialization as a pain management doctor.” (Id. at 27). Plaintiff
contends that even “[i]f good cause exists for not giving the treating physician’s opinion
controlling weight, the opinion must still be accorded substantial or considerable weight. (Id. at
28 (citing Lamb v. Bowen, 847 F.2d 698, 703 (11th Cir. 1988)).
Defendant disagrees, arguing that the ALJ properly discounted Dr. Zaidi’s opinion. (Id.
at 30). Defendant argues that the ALJ correctly found that Dr. Zaidi’s opinion was not entitled to
controlling weight because substantial evidence supports a finding that Dr. Zaidi’s opinion was
not consistent with the records, specifically the clinical examination findings and other opinion
evidence. (Id. at 30). Similarly, Defendant argues that substantial evidence supports the ALJ’s
reasons for declining to give Dr. Zaidi’s opinion even significant weight. (Id.).
Further, as to Dr. Krishnamurthy’s opinion, Defendant contends that, “[w]hile a nonexamining opinion standing alone cannot be good cause to discount a treating opinion, the ALJ
provided several other reasons to discount Dr. Zaidi’s opinion.” (Id. at 32). Defendant further

8

argues that “the regulations and case law do not prohibit the ALJ’s consideration of nonexamining opinion evidence in determining the weight to give a treating source.” (Id. (citing
Straka-Acton v. Comm’r of Soc. Sec., No. 6:14-cv-630-ORL-GJK, 2015 WL 5734936, at *3
(M.D. Fla. Sept. 29, 2015))). Additionally, Defendant contends that “state agency medical and
psychological consultants’ opinions may be entitled to greater weight than even treating source
opinions if better supported by evidence in the record.” (Id. (citing 20 C.F.R. §
404.1527(e)(2)(i); SSR 96-6p, 1996 WL 374180, at *2-3; Jarrett v. Comm’r of Soc. Sec., 422 F.
App’x 869, 874 (11th Cir. 2011))).
As a final matter, Defendant notes Plaintiff’s contention “that the ALJ should have
considered that Dr. Zaidi’s opinion was entitled to more weight because he worked at the same
facility where Plaintiff had been receiving treatment for his degenerative disc and joint disease
since 2005.” (Id. at 34). Defendant contends that “Plaintiff provides no authority for such a
proposition and the regulation on treating sources speaks to such doctors in terms of the doctor’s
own treatment of a claimant, not their colleagues’ treatment.” (Id. (citing 20 C.F.R. §
404.1527(c)(2))).
In sum, Defendant argues that “the ALJ . . . evaluated the entirety of the evidence and
concluded that the evidence supported [a] finding that Plaintiff could perform work consistent
with the RFC.” (Id. at 35). Thus, Defendant argues that “[t]he ALJ properly evaluated the
medical opinion evidence.” (Id.).
As stated above, good cause exists to discount a treating physician’s opinion when (1) the
opinion is not bolstered by the evidence, (2) the evidence supported a contrary finding, or (3) the
opinion is conclusory or inconsistent with the doctor’s own medical records. Phillips, 357 F.3d

9

at 1240-41. In this case, the Court finds that the ALJ provided good cause for discounting Dr.
Zaidi’s opinion. See id.
As an initial matter, the ALJ declined to give Dr. Zaidi’s opinion controlling weight
because “it is inconsistent with other substantial evidence in record; specifically, clinical
examination findings and additional opinion evidence.” (Tr. at 24). In support, the ALJ cited (1)
Exhibit B3A – the initial denial by an SDM; (2) Exhibit B5A – the denial on reconsideration by
Dr. Krishnamurthy; and (3) the ALJ’s findings in Section 5(A) of his decision. (See id.). Upon
consideration, the ALJ’s citations to the record in Section 5(A) of his decision provide
substantial evidence in support of his finding that Dr. Zaidi’s opinion is inconsistent with other
substantial evidence in record. See Phillips, 357 F.3d at 1240-41.
Specifically, while Dr. Zaidi opined that Plaintiff had significant limitations, including
the need to need to lie down or recline to rest every 1-2 hours for 15-30 minutes, (Tr. at 444), the
ALJ nonetheless cited other evidence of record showing that Plaintiff had no joint swelling,
cramps or weakness, no overt pain behavior, and full strength in the extremities with negative
straight leg raise testing, no focal spasms, normal gait, and normal range of motion. (Tr. at 21-22
(citing Tr. at 347-48, 369, 392, 431)). Moreover, this is not a situation where the ALJ failed to
consider alternative evidence. Indeed, the ALJ specifically noted Plaintiff’s longitudinal
treatment history for knee pain and back pain. (See Tr. at 21-22). Nonetheless, the ALJ
ultimately concluded that the evidence did not support the severe limitations Dr. Zaidi opined.
(See Tr. at 24). As indicated above, this Court is not tasked with reweighing the evidence but
instead must determine whether the ALJ applied the correct legal standard, and whether his
findings are supported by substantial evidence. See McRoberts, 841 F.2d at 1080; Richardson,
402 U.S. at 390. Here, substantial evidence of record cited by the ALJ supports a contrary

10

finding. Thus, the ALJ provided good cause to discount Dr. Zaidi’s opinion and did not err by
declining to give the opinion controlling weight. See Phillips, 357 F.3d at 1240-41.
Beyond the issue of controlling weight, the ALJ found that Dr. Zaidi’s opinion was not
entitled to even significant weight for three reasons: (1) the ALJ found Dr. Zaidi’s opinion to be
internally inconsistent; (2) during the relevant period, the ALJ found Dr. Zaidi’s opinion
regarding Plaintiff’s limitations were not supported by any significant clinical examination
findings; and (3) the ALJ found Dr. Zaidi’s opinions to be inconsistent with Plaintiff’s pattern of
treatment. (Tr. at 24). Each of these reasons is supported by substantial evidence.
As to the ALJ’s first reason for declining to give Dr. Zaidi’s opinion even significant
weight – i.e., that Dr. Zaidi’s opinion was internally inconsistent – the Court notes that, in one
place, Dr. Zaidi opined that Plaintiff could lift and/or carry only less than five pounds, but in
another place stated that Plaintiff was “restricted lifting heavy items.” (Tr. at 24 (citing Tr. at
444)). The Court agrees with the ALJ’s reasoning that “the ability to lift even five pounds is not
consistent with ‘lifting heavy items.’” (See Tr. at 24). Thus, Dr. Zaidi’s opinion may be
considered internally inconsistent. (See Tr. at 24). As a result, the Court finds that the ALJ’s
stated reason provides good cause to discount Dr. Zaidi’s opinion. See Phillips, 357 F.3d at
1240-41.
Additionally, the ALJ also cited Plaintiff’s ability to assist with light household chores
and to take the stairs to his second floor apartment as being inconsistent with Dr. Zaidi’s extreme
postural limitations. (Tr. at 24). While this finding does not necessarily speak to the internal
consistency of Dr. Zaidi’s opinions, the finding does suggest that the evidence of record supports
a conclusion other than Dr. Zaidi’s opinion. Thus, this reason also constitutes good cause to
discount Dr. Zaidi’s opinion. See Phillips, 357 F.3d at 1240-41.

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The ALJ’s second reason for discounting Dr. Zaidi’s opinion is that, during the relevant
period, the limitations that Dr. Zaidi opined are not supported by any significant clinical
examination findings. (Tr. at 24). A review of the briefing shows that Plaintiff did not point to
any significant clinical examination findings from the relevant time period to rebut this point.
(See Doc. 17 at 18-28). Thus, Dr. Zaidi’s opinion was not bolstered by the evidence. The ALJ’s
stated reason, therefore, provides good cause to discount Dr. Zaidi’s opinion. See Phillips, 357
F.3d at 1240-41.
The final reason given by the ALJ for declining to give Dr. Zaidi’s opinions significant
weight was that the opinions are inconsistent with Plaintiff’s pattern of treatment. (Tr. at 24).
On this point, this Court has previously stated that the absence of limitations in treatment notes
does not, standing alone, provide good cause reasons to assign less than substantial or
considerable weight to a treating physician. Straka-Acton, 2015 WL 5734936, at *3 (citing
Lamb, 847 F.2d at 703). Nonetheless, an “ALJ is not prohibited from considering such evidence
when weighing a treating physician’s opinion,” id., nor is this consideration precluded from
being a part of the ALJ’s reasons for discounting a treating physician’s opinion. See id.
In this case, the ALJ found:
Over the course of treatment by any physician, the physicians never made
limitations on the claimant’s ability to walk, sit, or lift/carry, which are integral
parts of these opinions. In fact, there is no mention of any functional limitations
consistent with the severity discussed in this opinion. In addition, the physician’s
indication that the prescription medication would interfere with the claimant’s
abilities is inconsistent with the claimant’s continuous reports of no side effects
from the medication. Given the inconsistency with the longitudinal record, the
physician’s opinion is not entitled to significant weight.
(Tr. at 24 (internal citations omitted)). Plaintiff did not rebut this point. (See Doc. 17 at 18-28).
Thus, while the lack of limitations in treatment notes, standing alone, cannot constitute good
cause for discounting Dr. Zaidi’s opinion, the Court finds that the ALJ did not err in making this

12

finding as a part of his reasons for discounting Dr. Zaidi’s opinion. See Straka-Acton, 2015 WL
5734936, at *3.
In sum, the Court finds that the ALJ provided good cause for discounting Dr. Zaidi’s
opinion. See Phillips, 357 F.3d at 1240-41. Because the ALJ provided good cause to discount
Dr. Zaidi’s opinion, the Court need not address Plaintiff’s other arguments. For the sake of
clarity, however, the Court addresses Plaintiff’s remaining arguments below.
For example, Plaintiff contends that the ALJ’s citations to the decisions by the SDM and
Dr. Krishnamurthy cannot be substantial evidence. (Doc. 17 at 22).
As to the SDM’s decision, the Court notes that an SDM, with no apparent medical
credentials, is not an acceptable medical source. See Siverio v. Comm’r of Soc. Sec., 461 F.
App’x 869, 871 (11th Cir. 2012). Nonetheless, while it is improper for an ALJ to consider the
opinion of an SDM, the Eleventh Circuit has stated that an ALJ commits harmless error when his
review of an SDM’s opinion is confirmed by other objective medical evidence of record. See
Castel v. Comm’r of Soc. Sec., 355 F. App’x 260, 266 (11th Cir. 2009). In this case, any
potential error by the ALJ in referencing the SDM’s decision is harmless because other
substantial evidence of record supports the ALJ’s decision to discount Dr. Zaidi’s opinion. (See
Tr. at 24).
Similarly, as to Dr. Krishnamurthy’s opinion, Plaintiff takes issue with the fact that (1)
Dr. Krishnamurthy is a nonexamining consultative physician; (2) the ALJ gave more weight to
Dr. Krishnamurthy’s opinion; and (3) Dr. Krishnamurthy never saw the retrospective opinion of
Dr. Zaidi. (See Doc. 17 at 22). The Court finds that none of these points are a basis for remand.
For instance, the Court notes that an ALJ may not rely on the opinion of a nonexamining
consultative physician, standing alone, as a good cause reason to assign a treating physician’s

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opinion less than substantial or considerable weight. Straka-Acton, 2015 WL 5734936, at *3
(citing Lamb, 847 F.2d at 703)). Nonetheless, an ALJ is not prohibited from considering this
evidence when weighing the opinion of a treating physician. See id. Here, because the ALJ
provided other good cause reasons for discounting Dr. Zaidi’s opinion, the ALJ did not err in
relying, in part, on the opinion of the state agency nonexamining physician Dr. Krishnamurthy.
See id.
Similarly, while Plaintiff takes issue with the fact that the ALJ assigned more weight to
Dr. Krishnamurthy’s opinion than Dr. Zaidi’s opinion, the Court notes that an ALJ is not
prohibited from giving more weight to non-examining state agency consultative physicians when
their opinions are better supported by the record. See Jarrett, 422 F. App’x at 874 (finding that
the ALJ did not err in giving a treating physician’s little weight and instead crediting the opinion
of the state agency consultants because their opinions were better supported by the record).
Here, as stated above, the ALJ provided good cause reasons supported by substantial evidence of
record for discounting Dr. Zaidi’s opinion. Moreover, it is clear that the ALJ’s ultimate RFC
findings were based, at least in part, on the substantial evidence of record cited by the ALJ to
discount Dr. Zaidi’s opinion. (See Tr. at 24). Further, a review of Dr. Krishnamurthy’s opinion
shows that it is more consistent with the ALJ’s RFC findings than Dr. Zaidi’s opinion. (See Tr.
20, 103-16). As such, the record supports a finding that Dr. Krishnamurthy’s opinion is better
supported by the record. See id.
As a final matter as to Dr. Krishnamurthy’s opinion, Plaintiff takes issue with the fact
that Dr. Krishnamurthy never saw the retrospective opinion of Dr. Zaidi. (Doc. 17 at 20). The
Eleventh Circuit has previously indicated, however, that even if a non-examining doctor was
unable to review all of the claimant’s medical records before making an RFC determination,

14

there is no error if the nonexamining physician cited portions of the record in support of his
conclusions, and the ALJ, who made the ultimate determination, had access to the entire record
as well as the claimant’s testimony. See Cooper v. Comm’r of Soc. Sec., 521 F. App’x 803, 807
(11th Cir. 2013). Here, while Dr. Krishnamurthy did not review all of Plaintiff’s medical
records, Dr. Krishnamurthy cited portions of the record in support of his conclusions. (See Tr. at
103-16). Moreover, the ALJ – who made the ultimate determination – had access to the entire
record as well as Plaintiff’s testimony. Thus, the Court cannot find error here. See Cooper, 521
F. App’x at 807.
As an additional matter, Plaintiff takes issue with the ALJ’s failure to acknowledge Dr.
Zaidi’s specialization as a pain management doctor. (Doc. 17 at 27). The Court notes, however,
that specialization is only one factor an ALJ considers when giving weight to a physician’s
opinion. See 20 C.F.R. § 404.1527(c). Moreover, “there is no rigid requirement that the ALJ
specifically refer to every piece of evidence in his decision . . . .” Dyer v. Barnhart, 395 F.3d
1206, 1211 (11th Cir. 2005). Here, because the ALJ provided other good reasons for discounting
Dr. Zaidi’s opinion, the Court cannot find error in any failure by the ALJ to acknowledge Dr.
Zaidi’s specialization in pain management. See id.
As a final matter, Plaintiff argues that “Dr. Zaidi’s retrospective opinion was entitled to
more weight because he worked at the [same medical treatment center] where Plaintiff had been
receiving treatment for his degenerative disc and joint disease since 2005” and because “Dr.
Zaidi knew and worked with all of Plaintiff’s previous surgeons and pain management
specialists.” (Doc. 17 at 20). Nonetheless, Plaintiff’s briefing fails to cite any legal authority in
support of this contention. (See id.). Thus, the Court has no basis to conclude that Dr. Zaidi’s

15

employment at the same treatment facility as Plaintiff’s other providers is a valid reason to give
Dr. Zaidi’s opinion more weight. (See id.).
In sum, the ALJ properly discounted Dr. Zaidi’s opinion. See Phillips, 357 F.3d at 124041. Thus, the ALJ’s decision on this ground is affirmed.
2.

Joseph M. Brooks, M.D.

The Court next addresses Plaintiff’s arguments regarding Dr. Brooks’ opinion. On this
point, Plaintiff notes that Dr. Brooks gave a medical opinion dated June 25, 2009. (Doc. 17 at 19
n.3). While Plaintiff acknowledges that the opinion was considered and rejected by the ALJ in a
previous decision related to a previous application for benefits, Plaintiff argues that Dr. Brooks’
June 25, 2009 opinion should have been considered by the ALJ in the present case. (Id.).
Specifically, Plaintiff contends that the ALJ “open[ed] the door” to considering Dr. Brooks’ June
25, 2009 opinion because (1) the ALJ discusses Dr. Brooks’ treatments notes during the time
period the opinion was given—i.e., four months before the ALJ’s decision and (2) “Dr. Brooks
was providing pain management during the relevant time period (October 30, 2009 through
December 31, 2009).” (Id.). Thus, Plaintiff argues that the ALJ improperly ignored Dr. Brooks’
June 25, 2009 opinion. (Id. at 23).
Defendant disagrees, arguing that Dr. Brooks’ opinion was considered by the ALJ in
Plaintiff’s previously adjudicated application and, thus, is subject to administrative res judicata.
(Id. at 29 (citing Tr. at 80)). Defendant contends that “[u]nder the Commissioner’s regulations,
administrative res judicata applies when the agency has made a previous final determination or
decision regarding the claimant’s rights on the same facts and issues.” (Id. (citing 20 C.F.R. §
404.957(c)(1); Cash v. Barnhart, 327 F.3d 1252, 1255-56 (11th Cir. 2003))). Defendant argues
that “[b]ecause the ALJ in the prior decision considered and discounted Dr. Brooks’s opinion,

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the ALJ here was not required to re-address the opinion.” (Id. (citing Baxley v. Colvin, No. 5:12cv-69/EMT, 2013 WL 3107968 at *6-7 (N.D. Fla. Jun. 17, 2013))).
In evaluating this issue, the Court notes that “[a]dministrative res judicata applies when
the Commissioner ‘[has] made a previous determination or decision . . . about [a claimant’s]
rights on the same facts and on the same issue or issues, and [the] previous determination or
decision has become final by either administrative or judicial action.’” Freese v. Colvin, No.
8:15-CV-1315-T-27AAS, 2016 WL 4487916, at *5 (M.D. Fla. Aug. 5, 2016) (citing 20 C.F.R.
§§ 404.957(c), 416.1457(c); Atkins v. Comm’r, Soc. Sec. Admin., 596 F. App’x. 864, 868 (11th
Cir. 2015); Cash, 327 F. 3d at 1254-55), report and recommendation adopted, No. 8:15-CV1315-T-27AAS, 2016 WL 4487865 (M.D. Fla. Aug. 24, 2016). Here, the parties do not dispute
that the previous decision was final or that the ALJ rejected the Dr. Brooks’ June 25, 2009
opinion in that previous decision. (See Doc. 17 at 19 n.3; see id. at 29-30). Instead, Plaintiff
argues that the ALJ “open[ed] the door” to considering Dr. Brooks’ opinion by his treatment of
the decision in the opinion. (Doc. 17 at 19 n.3).
The Court construes Plaintiff’s argument to be that the ALJ reopened the issues from
Plaintiff’s previous application for benefits. See id. The Court notes, however, that the
Agency’s decision “to reopen a previous application is not reviewable by this court.” Freese,
2016 WL 4487916, at *5 (citing 20 C.F.R. §§ 404.903(l), 416.1403(a)(5); Cash, 327 F.3d at
1256). Moreover, courts typically only make an exception to this rule “where a final decision on
a prior social security claim is in fact reopened and reconsidered on the merits to any extent on
the administrative level.” Cash, 327 F.3d at 1256 (citation and internal quotation marks
omitted).

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In this instance, the Court agrees with Defendant and finds that the ALJ did not err in his
consideration of Dr. Brooks’ June 25, 2009 opinion. (See Doc. 17 at 29). Specifically, it is clear
that the ALJ only reviewed Dr. Brooks’ opinion to the extent necessary to provide context to the
current decision. (See Tr. at 18-25). The ALJ did not address the merits of Plaintiff’s previous
application for benefits. See Cash, 327 F.3d at 1256. As a result, the Court finds that, because
the ALJ considered and discounted Dr. Brooks’ June 25, 2009 opinion in the prior decision,
administrative res judicata applies such that the ALJ was not required to re-address the opinion
in the current decision. See id.
The Court, therefore, affirms the ALJ’s decision on this ground.
III.

Conclusion
Upon consideration of the submissions of the parties and the administrative record, the
Court finds that the decision of the ALJ is supported by substantial evidence and decided upon
proper legal standards.
IT IS HEREBY ORDERED:
The decision of the Commissioner is hereby AFFIRMED pursuant to sentence four of 42
U.S.C. § 405(g). The Clerk of Court is directed to enter judgment accordingly, terminate any
pending motions and deadlines, and close the case.
DONE AND ORDERED in Fort Myers, Florida on September 27, 2017.

Copies furnished to:
Counsel of Record
Unrepresented Parties

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