Nieves v. Commissioner of Social Security

Filing 20

ORDER adopting 17 Report and Recommendations. The Commissioner's final decision is AFFIRMED. The Clerk is DIRECTED to enter judgment in favor of Defendant the Commissioner of Social Security and against Plaintiff Obel Nieves and to close the file. Signed by Judge Roy B. Dalton, Jr. on 11/30/2017. (VMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
OBEL NIEVES,
Plaintiff,
v.

Case No. 6:17-cv-24-Orl-37GJK

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
_____________________________________
ORDER
In the instant appeal, Plaintiff Obel Nieves challenges the Commissioner of the
Social Security Administration’s (the “Commissioner”) final decision denying him social
security benefits. (Doc. 1.) On referral, U.S. Magistrate Judge Gregory J. Kelly
recommended that the Court affirm the Commissioner’s final decision. (Doc. 17
(“R&R”).) Plaintiff objected to the R&R (Doc. 18 (“Objection”)), and the Commissioner
responded (Doc. 19). Upon consideration, the Court finds that the Objection is due to be
overruled, and the R&R is due to be adopted.
I.

LEGAL STANDARDS

When a party objects to a magistrate judge’s findings, the district court must
“make a de novo determination of those portions of the report . . . to which objection is
made.” 28 U.S.C. § 636(b)(1). The district court “may accept, reject, or modify, in whole
or in part, the findings or recommendations made by the magistrate judge.” Id. The
district court must consider the record and factual issues based on the record
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independent of the magistrate judge’s report. Ernest S. ex rel. Jeffrey S. v. State Bd. of Educ.,
896 F.2d 507, 513 (11th Cir. 1990).
II.

BACKGROUND

Plaintiff first filed an application for a period of disability and disability insurance
benefits on July 27, 2012, alleging disability beginning May 24, 2012. (Doc. 13-2, p. 21.)
His claim was initially denied and denied again upon reconsideration. (Id.) Plaintiff then
requested a hearing, which was held on June 15, 2015, before an Administrative Law
Judge (“ALJ”) with counsel present. (Id.) On July 7, 2015, the ALJ issued an unfavorable
decision, concluding that Plaintiff was not disabled. (Id. at 21, 33.) Plaintiff requested
review of the ALJ’s decision before the Appeals Council of the Social Security
Administration, which was denied. (Doc. 1-2.) As such, the ALJ’s decision finding no
disability became the Commissioner’s final decision.
Plaintiff then filed the instant appeal, requesting review and reversal of the
Commissioner’s decision for an award of benefits or remand. (Doc. 1.) As grounds,
Plaintiff proffers that the ALJ committed reversible error because she: (1) failed to
consider all of Plaintiff’s impairments when determining whether he suffered from a
severe impairment at step two of the sequential process; and (2) understated the effects
of Plaintiff’s disability in a number of ways when making her residual functional capacity
(“RFC”) determination at step four. (Doc. 16.) In finding for the Commissioner,
Magistrate Judge Kelly found no error with the ALJ’s findings and conclusions at either
step. (Doc. 17, pp. 4–7, 9, 10.)
Plaintiff now objects to the R&R’s conclusion that the ALJ properly determined
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Plaintiff’s RFC. (Doc. 18.) As the matter has been fully briefed (see Doc. 19), it is now ripe
for the Court’s consideration.
III.

ANALYSIS

A person who applies for social security disability benefits must prove his
disability. 20 C.F.R. § 404.1512. To that end, the Social Security Regulations outline a
five-step sequential evaluation process to evaluate whether a claimant is disabled.
20 C.F.R. § 404.1520; Hargress v. Comm’r of Soc. Sec., 874 F.3d 1284, 1285–86 (11th Cir. 2017)
(per curiam); Phillips v. Barnhart, 357 F.3d 1232, 1237 (11th Cir. 2004). Only two of those
steps are relevant here.
A.

Step Two: Severe Impairment
As an initial matter, Plaintiff does not object to the R&R’s conclusion that the ALJ

properly found at step two that Plaintiff suffered from three severe impairments. (See
Doc. 18.) Because Plaintiff did not offer specific objections to that portion of the R&R, the
Court reviews it only for clear error. See Wiand v. Wells Fargo Bank, N.A.,
No. 8:12-cv-557-T-27EAJ, 2016 WL 355490, at *1 (M.D. Fla. Jan. 28, 2016); see also Marcort
v. Prem, Inc., 208 F. App’x 781, 784 (11th Cir. 2006). 1 Finding no clear error, the Court finds
that this portion of the R&R is due to be adopted.

While unpublished opinions are not binding precedent, they may be considered
as persuasive authority. See 11th Cir. R. 36-2; see also United States v. Almedina,
686 F.3d 1312, 1316 n.1 (11th Cir. 2012).
1

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B.

Step Four: RFC Determination
The Objection focuses only on the ALJ’s analysis at step four. (See Doc. 18, p. 1.) At

this step, the ALJ must assess Plaintiff’s RFC and ability to return to his past relevant
work. 20 C.F.R. § 404.1520(a)(4)(iv). The RFC is the most work that a claimant can do
despite the limitations caused by his impairments. 20 C.F.R. § 404.1545(a)(1). The RFC
determination is used to decide whether the claimant: (1) can return to his past relevant
work; and (2) can adjust to other work under the fifth step of the evaluation process.
20 C.F.R. § 404.1520(e). Here, the ALJ found that Plaintiff has the following RFC:
After careful consideration of the entire record, the
undersigned finds that [Plaintiff] has the [RFC] to perform
less than the full range of light work . . . . He should be able to
sit at a workstation to perform simple 1 to 5 step tasks
(learned in 30 days or less) at least 50% of the workday; no
more than occasional balancing and climbing, but never the
climbing of ropes, ladders or scaffolds; he should avoid: foot
controls, work at heights, and work with dangerous
machinery; [Plaintiff] can have occasional interaction with the
general public and frequent interaction with coworkers and
supervisors.
(Doc. 13-2, p. 24.) The ALJ also found that Plaintiff had no past relevant work and, applied
the RFC to step five—whether Plaintiff could perform jobs that exist in the national
economy. (Id. at 30.) Answering step five affirmatively, the ALJ concluded that Plaintiff
was not disabled. (Id.)
In his Objection, Plaintiff essentially recapitulates three arguments made before
Magistrate Judge Kelly—that the ALJ’s RFC determination failed to: (1) include a
limitation for Plaintiff’s visual impairment; (2) consider medication side effects; and
(3) acknowledge Plaintiff’s poverty as a good cause for noncompliance with treatment.
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(Doc. 18, pp. 2–4.) Upon de novo review of the record, the Court agrees with Magistrate
Judge Kelly’s findings and conclusions.
1.

Visual Impairment

Plaintiff first objects to Magistrate Judge Kelly’s finding that the ALJ properly
considered Plaintiff’s visual impairment in making her RFC determination. (Doc. 18, p. 1;
see also Doc. 17, pp. 5–6.) Plaintiff highlights his complaint in 2013 of flashing and flocks
with pain in his right eye, spider web images with severe pain in his left eye, and blurred
and foggy vision during most of the day. (Doc. 13-9, p. 40.) Based on this complaint,
Plaintiff contends that the ALJ should have included an explicit vision limitation in the
RFC. (Doc. 18, p. 2.)
An ALJ makes an RFC determination “based on all relevant medical and other
record

evidence.”

Philips,

357

F.3d

at

1238

(11th

Cir.

2004)

(quoting

20 C.F.R. § 404.1520(e)). Contrary to Plaintiff’s assertion, the ALJ properly considered
Plaintiff’s visual impairment when determining his RFC, and that determination is
supported by substantial evidence. First, the ALJ noted that she “considered all
symptoms and the extent to which those symptoms can reasonably be accepted as
consistent with the objective medical evidence and other evidence.” (Doc. 13-2, p. 25.) An
ALJ’s statement to that effect suffices to show that she has carefully considered the entire
record. See Tuggerson-Brown v. Comm’r of Soc. Sec., 572 F. App’x 949, 951–52
(11th Cir. 2014); Jones v. Dep’t of Health & Human Servs., 941 F.2d 1529, 1533
(11th Cir. 1991) (citing Wheeler v. Heckler, 784 F.2d 1073, 1076 (11th Cir. 1986)).

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Second, and further undercutting Plaintiff’s argument, the ALJ specifically found
that because Plaintiff has the severe impairment of “diabetes with retinopathy” and
experiences “blurred vision [and] flashing lights,” he “requires light work to reduce
pressure to the eyes.” (Doc. 13-2, pp. 22, 25.) Plaintiff’s focus on his visual impairment in
July of 2013 (see Doc. 13-9, p. 40) ignores the medical records demonstrating his
subsequent improvement in 2014 and 2015. (Doc. 13-10, pp. 3, 11, 57, 61). The ALJ must
consider Plaintiff’s medical condition as a whole rather than isolate particular complaints.
See Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005). Nothing in the record indicates
that any work-related restrictions were placed on Plaintiff due to his visual impairment.
(Doc. 13-10, pp. 59, 63.) Hence the Court agrees with the R&R’s conclusion that the ALJ
properly considered the effects of Plaintiff’s visual impairment in the RFC
determination.2
2.

Medication side effects
Next Plaintiff argues that Magistrate Judge Kelly’s R&R is flawed because the ALJ

failed to consider medication side effects—namely, drowsiness from Gabapentin—when
making her RFC determination. (Doc. 18, pp. 2–3.) The Court disagrees.
Where a claimant has not complained of medication side effects to treating
physicians, there is substantial evidence to support a finding that side effects are not a

Plaintiff also contends that the ALJ’s failure to include his visual limitation in the
RFC “necessarily rendered the [s]tep [f]ive determination unsupported” because the
hypothetical to the vocational expert did not include all of Plaintiff’s impairments.
(Doc. 18, p. 2.) Because the Court finds that substantial evidence supports the ALJ’s RFC
determination and that the hypothetical accounted for the RFC (Doc. 13-2, p. 32), the
Court rejects this argument.
2

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significant problem. See Swindle v. Sullivan, 914 F.2d 222, 226 (11th Cir. 1990). Here, ALJ
specifically considered Plaintiff’s allegations of medication side effects but found “the
medical records from various treating doctors [do] not corroborate those allegations and
indicate that [Plaintiff] reported no medication side effects.” (Doc. 13-2, p. 29.) Indeed,
the record does not show that Plaintiff complained of side effects to his doctors, and none
of his examining or treating doctors expressed a concern about the potential side effects
of his medications. (See Doc. 13-8, pp. 38, 47, 53; Doc. 13-10, pp. 83, 89, 94).
Nevertheless, Plaintiff attempts to undermine the R&R by pointing to his
testimony at the administrative hearing and functional reports submitted to the Florida
Department of Health where he complained of drowsiness. (Doc. 18, p. 3; Doc. 13-2,
pp. 48–49; Doc. 13-6, pp. 55, 63.) But courts have found that a claimant’s own testimony
that a medication makes him drowsy is insufficient, standing alone, to support a finding
of disability. See, e.g., Holley v. Charter, 931 F. Supp. 840, 850 (S.D. Fla. 1996); see also Wilson
v. Astrue, 653 F. Supp. 2d 1282, 1296 (M.D. Fla. 2009). Furthermore, Plaintiff misinterprets
the narrowly circumscribed nature of the Court’s appellate review, which precludes it
from “re-weigh[ing] the evidence or substituting [its] judgment for that [of the
Commissioner] . . . even if the evidence preponderates against” that decision. Bloodsworth
v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). As such, the Court agrees with the R&R
that the ALJ properly considered the side effects of Plaintiff’s medications. (See Doc. 17,
p. 9.)

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3.

Noncompliance with Treatment
Finally, Plaintiff urges error with respect to Magistrate Judge Kelly’s finding that

the ALJ’s RFC determination properly considered Plaintiff’s noncompliance with
treatment. (Doc. 18, p. 4.) In so arguing, Plaintiff cites the well-settled principle that
“refusal to follow prescribed medical treatment without a good reason will preclude a
finding of disability,” and “poverty excuses noncompliance.” Dawkins v. Bowen,
848 F.2d 1211, 1213 (11th Cir. 1998). Plaintiff invokes Dawkins to contend that the ALJ’s
failure to consider whether Plaintiff could afford the prescribed treatment requires
remand because it is unclear whether the ALJ based her RFC determination on Plaintiff’s
noncompliance. (Doc. 18, p. 4.)
Plaintiff’s position ignores the limited application of Dawkins. The ALJ must
consider a claimant’s ability to afford a prescribed treatment only where: (1) she relies on
noncompliance as the sole ground for denial of disability benefits; and (2) the record
contains evidence showing that the claimant is financially unable to comply with
prescribed treatment. Ellison v. Barnhart, 355 F.3d 1272, 1275 (11th Cir. 2003) (citing
Dawkins, 848 F.2d at 1214). True enough, the ALJ found that Plaintiff had “not been
entirely compliant in taking prescribed medications.” (Doc. 13-2, p. 29; see also Doc. 13-8,
pp. 26, 53; Doc. 13-10, p. 83.) But as Magistrate Judge Kelly points out, Plaintiff’s
noncompliance was not the sole ground for the ALJ’s RFC determination. (Doc. 17, p. 10;
see also Doc. 13-2, pp. 29–30 (considering Plaintiff’s work history, the varying consistency
of diagnoses and opinions in the medical records, and Plaintiff’s activities of daily
living).) So the ALJ was not required to consider Plaintiff’s inability to afford the
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prescribed treatment, and the Court agrees with the R&R that the ALJ properly
considered Plaintiff’s noncompliance.
Based on the foregoing, the Objection is due to be overruled, the R&R is due to
adopted, and the Commissioner’s decision is due to be affirmed.
IV.

CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED as follows:
1.

Plaintiff’s Objection to the Magistrate Judge’s Report and Recommendation
(Doc. 18) is OVERRULED.

2.

U.S. Magistrate Judge Gregory J. Kelly’s Report and Recommendation
(Doc. 17) is ADOPTED, CONFIRMED, and made a part of this Order.

3.

The Commissioner’s final decision is AFFIRMED.

4.

The Clerk is DIRECTED to enter judgment in favor of Defendant the
Commissioner of Social Security and against Plaintiff Obel Nieves and to
close the file.

DONE AND ORDERED in Chambers in Orlando, Florida, on November 30, 2017.

Copies to:
Counsel of Record

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