Ortiz v. Commissioner of Social Security

Filing 24

OPINION AND ORDER affirming the decision of the Commissioner. The Clerk is directed to enter final judgment in favor of the Commissioner and close the case. Signed by Magistrate Judge Anthony E. Porcelli on 9/25/2024. (CPK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
FELIPE TORO ORTIZ,
Plaintiff,
v.

Case No. 8:23-cv -01943-AEP

MARTIN O’MALLEY,
Commissioner of Social Security, 1
Defendant.
/
ORDER
Plaintiff seeks judicial review of the denial of his claim for a period of
disability, disability insurance benefits (“DIB”), and Supplemental Security Income
(“SSI”). As the Administrative Law Judge’s (“ALJ”) decision was based on
substantial evidence and employed proper legal standards, the Commissioner’s
decision is affirmed.
I.
A.

Procedural Background

Plaintiff filed an application for a period of disability, DIB, and SSI (Tr. 22).
The Social Security Administration (“SSA”) denied Plaintiff’s claims both initially

Martin O’Malley is now the Commissioner of Social Security. Pursuant to Rule 25(d) of
the Federal Rules of Civil Procedure, Commissioner Martin O’Malley should be
substituted for Acting Commissioner Kilolo Kijakazi as the defendant in this matter. No
further action needs to be taken to continue this matter by reason of the last sentence of
section 205(g) of the Social Security Act. 42 U.S.C. § 405(g).

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and upon reconsideration (Tr. 22). Plaintiff then requested an administrative
hearing (Tr. 22). Per Plaintiff’s request, the ALJ held a hearing at which Plaintiff
appeared and testified (Tr. 22). Following the hearing, the ALJ issued an
unfavorable decision finding Plaintiff not disabled and accordingly denied
Plaintiff’s claims for benefits (Tr. 22). Subsequently, Plaintiff requested review from
the Appeals Council (Tr. 22). The Appeals Council granted the request, vacated the
decision, and remanded the case back to the ALJ for further evaluation (Tr. 22). On
remand, the ALJ held another hearing and issued a new decision finding Plaintiff
not disabled and accordingly denied Plaintiff’s claims for benefits (Tr. 32). Plaintiff
again requested review from the Appeals Council, which the Appeals Council
denied (Tr. 1). Plaintiff then timely filed a complaint with this Court (Doc. 1). The
case is now ripe for review under 42 U.S.C. §§ 405(g), 1383(c)(3).
B.

Factual Background and the ALJ’s Decision

Plaintiff, who was born in 1968, claimed disability beginning April 27, 2020
(Tr. 503). Plaintiff obtained a 9th grade education (Tr. 180, 550). Plaintiff’s past
relevant work experience included work as a hand assembler (Tr. 30). Plaintiff
alleged disability due to pain in his spine; arthritis in his hand, fingers, and spine;
neck pain; and leg pain (Tr. 549).
In rendering the administrative decision, the ALJ concluded that Plaintiff
met the insured status requirements through December 31, 2025, and had not
engaged in substantial gainful activity since April 27, 2020, the alleged onset date
(Tr. 24–25). After conducting a hearing and reviewing the evidence of record, the

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ALJ determined Plaintiff had the following severe impairments: degenerative disc
disease, degenerative joint disease, hypertension, and hyperlipidemia (Tr. 25).
Notwithstanding the noted impairments, the ALJ determined Plaintiff did not have
an impairment or combination of impairments that met or medically equaled one
of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (Tr. 25).
The ALJ then concluded that Plaintiff retained a residual functional capacity
(“RFC”) to perform less than the full range of light work as defined in 20 C.F.R.
404.1567(b). Specifically, the ALJ noted the following limitations:
He can lift twenty pounds occasionally and ten pounds frequently. He
can stand and walk six hours, and sit six hours, in an eight-hour
workday. He is limited to occasionally climb ramps and stairs,
balance, stoop, kneel, crouch, and crawl; never climb ladders, ropes,
or scaffolds; and frequently reach, handle, finger, and feel. He must
avoid temperature extremes, wetness, vibrations, and hazardous
machinery and heights; and he can understand, remember, and carry
out routine and repetitive instructions and tasks
(Tr. 25–26). In formulating Plaintiff’s RFC, the ALJ considered Plaintiff’s
subjective complaints and determined that, although the evidence established the
presence of underlying impairments that reasonably could be expected to produce
the symptoms alleged, Plaintiff’s statements as to the intensity, persistence, and
limiting effects of his symptoms were not entirely consistent with the medical
evidence and other evidence (Tr. 26).
Considering Plaintiff’s noted impairments and the assessment of a vocational
expert (“VE”), however, the ALJ determined Plaintiff could not perform any past
relevant work (Tr. 30). Given Plaintiff’s background and RFC, the VE testified that
Plaintiff could perform other jobs existing in significant numbers in the national
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economy, such as a warehouse checker, night cleaner, and inspector packager (Tr.
31). Accordingly, based on Plaintiff’s age, education, work experience, RFC, and
the testimony of the VE, the ALJ found Plaintiff not disabled (Tr. 32).
II.
To be entitled to benefits, a claimant must be disabled, meaning he or she
must be unable 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 twelve months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A
“physical or mental impairment” is an impairment that results from anatomical,
physiological, or psychological abnormalities, which are demonstrable by medically
acceptable clinical and laboratory diagnostic techniques. 42 U.S.C. §§ 423(d)(3),
1382c(a)(3)(D).
To regularize the adjudicative process, the SSA promulgated the detailed
regulations currently in effect. These regulations establish a “sequential evaluation
process” to determine whether a claimant is disabled. 20 C.F.R. §§ 404.1520,
416.920. If an individual is found disabled at any point in the sequential review,
further inquiry is unnecessary. 20 C.F.R. §§ 404.1520(a), 416.920(a). Under this
process, the ALJ must determine, in sequence, the following: whether the claimant
is currently engaged in substantial gainful activity; whether the claimant has a severe
impairment, i.e., one that significantly limits the ability to perform work-related
functions; whether the severe impairment meets or equals the medical criteria of 20

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C.F.R. Part 404 Subpart P, Appendix 1; and whether the claimant can perform his
or her past relevant work. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). If the claimant
cannot perform the tasks required of his or her prior work, step five of the evaluation
requires the ALJ to decide if the claimant can do other work in the national
economy in view of his or her age, education, and work experience. 20 C.F.R. §§
404.1520(a)(4)(v), 416.920(a)(4)(v). A claimant is entitled to benefits only if unable
to perform other work. Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987); 20 C.F.R. §§
404.1520(g)(1), 416.920(g)(1).
The ALJ, in part, decides Plaintiff’s claim pursuant to regulations designed
to incorporate vocational factors into the consideration of disability claims. See 20
C.F.R. §§ 404.1501, et seq. These regulations apply in cases where an individual’s
medical condition is severe enough to prevent him from returning to his former
employment but may not be severe enough to prevent him from engaging in other
substantial gainful activity. In such cases, the Regulations direct that an individual’s
residual functional capacity, age, education, and work experience be considered in
determining whether the claimant is disabled. These factors are codified in tables of
rules that are appended to the regulations and are commonly referred to as “the
grids.” 20 C.F.R. Part 404, Subpart P, App. 2. If an individual’s situation coincides
with the criteria listed in a rule, that rule directs a conclusion as to whether the
individual is disabled. 20 C.F.R. §§ 404.1569, 416.969. If an individual’s situation
varies from the criteria listed in a rule, the rule is not conclusive as to an individual’s
disability but is advisory only. 20 C.F.R. §§ 404.1569a, 416.969a.

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A determination by the Commissioner that a claimant is not disabled must
be upheld if it is supported by substantial evidence and comports with applicable
legal standards. See 42 U.S.C. §§ 405(g), 1383(c)(3). “Substantial evidence is more
than a scintilla and is such relevant evidence as a reasonable person would accept
as adequate to support a conclusion.” Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176,
1178 (11th Cir. 2011) (citation and internal quotation marks omitted). While the
court reviews the Commissioner’s decision with deference to the factual findings,
no such deference is given to the legal conclusions. Ingram v. Comm’r of Soc. Sec., 496
F.3d 1253, 1260 (11th Cir. 2007) (citations omitted).
In reviewing the Commissioner’s decision, the court may not reweigh the
evidence or substitute its own judgment for that of the ALJ, even if it finds that the
evidence preponderates against the ALJ’s decision. Winschel, 631 F.3d at 1178
(citations omitted); Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). The
Commissioner’s failure to apply the correct law, or to give the reviewing court
sufficient reasoning for determining that he or she has conducted the proper legal
analysis, mandates reversal. Ingram, 496 F.3d at 1260 (citation omitted). The scope
of review is thus limited to determining whether the findings of the Commissioner
are supported by substantial evidence and whether the correct legal standards were
applied. 42 U.S.C. § 405(g); Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002)
(per curiam) (citations omitted).

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III.
Plaintiff argues that the ALJ erred by failing to account for the “total limiting
effects” of Plaintiff’s severe impairments in the RFC (Doc. 18, p. 4). Specifically,
Plaintiff argues that the ALJ failed to account for: 1) Plaintiff’s need for a hand-held
assistive device (i.e., a cane) and 2) Plaintiff’s statements regarding the limiting
effects of his impairments, including his need to change positions due to pain,
difficulty with prolonged standing and walking, and difficulty with overhead
reaching (Doc. 18, p. 13, 16). For the following reasons, the ALJ applied the correct
legal standards, and the ALJ’s decision is supported by substantial evidence.
A.

Plaintiff’s Cane Use

Plaintiff argues that the ALJ’s analysis of the medical necessity for a handheld assistive device was defective. The necessity of a hand-held assistive device is
analyzed using SSR 96-9p. To find that Plaintiff required such a device, “there must
be medical documentation establishing the need for a hand-held assistive device to
aid in walking or standing, and describing the circumstances for which it is needed
. . . . The adjudicator must always consider the particular facts of a case.” SSR 969p, 61 Fed. Reg. 34,478-01 (July 2, 1996). Even absent such a showing, “courts have
found that ‘if the record contains information showing a claimant uses a cane, an
ALJ should explicitly consider whether the claimant has a medical necessity for
using such a hand-held device.’” Wood v. Comm’r of Soc. Sec., No. 6:20-CV-963LRH, 2021 WL 2634325, at *6 (M.D. Fla. June 25, 2021) (citing Ebenroth v. Saul,

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No. CV 119-001, 2020 WL 583057, at *4 (S.D. Ga. Jan. 14, 2020), report and
recommendation adopted, 2020 WL 583166 (S.D. Ga. Feb. 5, 2020)).
Plaintiff notes several instances in the record that support Plaintiff’s need for
a cane, including notes from several treating doctors indicating that Plaintiff was
using a cane during office visits and Plaintiff’s own statements that he must use a
cane while standing and grocery shopping (Doc. 18, p. 7–12). Plaintiff argues that
the ALJ failed to properly evaluate the need for a cane because the ALJ evaluated
the issue in one paragraph of the decision and used “highly selective” reasoning
(Doc. 18, p. 13–14).
Contrary to Plaintiff’s contentions, the ALJ properly evaluated Plaintiff’s
alleged need for a cane, finding that the record did not sufficiently and consistently
establish the need for a hand-held assistive device. Specifically, the ALJ assessed
Plaintiff’s cane usage at medical examinations, noting that the cane was never
prescribed by any treating physicians and that no medical records describe the
circumstances in which Plaintiff needs a cane (Tr. 28). The ALJ also weighed
contradictory evidence from examinations at which Plaintiff walked with normal
gait and station or without an assistive device altogether (Tr. 28–29).
Additionally, Plaintiff argues that the ALJ did not properly assess record
evidence that a pain management provider prescribed Plaintiff a powered
wheelchair (Doc. 18, p. 11, 15). As a threshold matter, the relevant portion of SSR
96-9p relied on by both parties and the ALJ applies only to “handheld assistive
devices.” Because a powered wheelchair is not a handheld assistive device, SSR 96-

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9p is not the proper framework for assessing the medical necessity of a powered
wheelchair. See J.B.O. v. Comm’r of Soc. Sec., No. 7:22-CV-93 (TQL), 2023 WL
2862292, at *3 (M.D. Ga. Apr. 10, 2023) (“SSR 96-9p applies to sedentary work
and to hand-held devices, whereas Plaintiff is assessed for light work and a
wheelchair is not a hand-held device.”). However, Plaintiff’s wheelchair usage is
still relevant to the total limiting effects of Plaintiff’s impairments, and the ALJ
properly considered the pain management provider’s note regarding the wheelchair
alongside “other examination findings . . . and the consultative physical evaluation”
that showed Plaintiff could walk without an assistive device (Tr. 28–29). Though
Plaintiff may disagree with the ALJ’s determination, the Court finds that it is
supported by substantial evidence and will not substitute its own judgment for that
of the Commissioner. Accordingly, Plaintiff’s first assignment of error is
unpersuasive.
B.

Plaintiff’s Statements Regarding the Limiting Effects of His
Impairments

Plaintiff also argues that the ALJ erred by failing to consider Plaintiff’s
statements regarding the limiting effects he described, including his need to change
positions due to pain, difficulty with prolonged standing and walking, and difficulty
with overhead reaching (Doc. 18, p. 7). In considering Plaintiff’s symptoms, an ALJ
must follow the requirements of 20 C.F.R. § 404.1529 and SSR 16-3p. The ALJ
considers both objective medical evidence and “other evidence,” including
statements by the individual “about the intensity, persistence, and limiting effects
of his or her symptoms.” SSR 16-3p. Additionally, the ALJ considers factors
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relevant to symptoms, including daily activities; the location, duration, frequency,
and intensity of pain or other symptoms; precipitating and aggravating factors;
medication; other treatments or measures used to relieve symptoms; and any other
factors concerning functional limitations and restrictions caused by the relevant
symptoms. 20 C.F.R. §§ 404.1529(c)(3)(i)–(vii); Moreno v. Astrue, 366 F. App’x 23,
28 (11th Cir. 2010).
Plaintiff first argues that the ALJ wrongly rejected Plaintiff’s statements
about the limiting effects of his symptoms as inconsistent with the record (Doc. 18,
p. 16). Specifically, Plaintiff takes issue with the ALJ’s references to Plaintiff’s
mostly conservative treatments that did not require recurrent hospitalizations or
emergency visits and the ALJ’s reliance on the fact that Plaintiff did not require a
brace or assistive device (Doc. 18, p. 16). Plaintiff also asserts that the ALJ did not
properly articulate reasons for finding that Plaintiff’s activities of daily living did not
align with his statements regarding the intensity, persistence, and limiting effects of
his symptoms (Doc. 18, p. 20).
Contrary to Plaintiff’s assertions, the ALJ properly supported his finding that
Plaintiff’s “statements concerning the intensity, persistence and limiting effects of
these symptoms are not entirely consistent with the medical evidence and other
evidence in the record” (Tr. 26). The ALJ first credited Plaintiff’s statements,
finding that his “medically determinable impairments could reasonably be expected
to cause the alleged symptoms” (Tr. 26). Upon review of the entire record, however,
the ALJ found several pieces of record evidence that refute Plaintiff’s statements.

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For example, MRI results showed only mild spinal abnormalities, treating
physicians noted medication treatments with reported improvements in Plaintiff’s
symptomatology, and various examination notes indicated Plaintiff had normal
tone and motor strength, normal gait and station, and full range of motion in his
extremities (Tr. 26–28).
Ultimately, the assessment of a claimant’s RFC is within the exclusive
province of the ALJ, and the ALJ is permitted to reject any opinion when the
evidence supports a contrary conclusion if the ALJ articulates the reasoning for that
decision. See 20 C.F.R. § 416.946(c); Sryock v. Heckler, 764 F.2d 834, 835 (11th Cir.
1985); Hunter v. Soc. Sec. Admin., Comm’r, 808 F.3d 818, 823 (11th Cir. 2015). The
ALJ did so here by considering Plaintiff’s subjective symptom complaints alongside
the entire record of medical evidence. Though Plaintiff may not agree with the
ALJ’s findings, this Court “may not decide the facts anew, reweigh the evidence, or
substitute our judgment for that of the Commissioner.” Winschel, 631 F.3d at 1178.
Thus, the ALJ’s decision is supported by substantial evidence and must be affirmed.
IV.
Accordingly, after consideration, it is hereby
ORDERED:
1. The decision of the Commissioner is AFFIRMED.
2. The Clerk is directed to enter final judgment in favor of the Defendant and
close the case.

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DONE AND ORDERED in Tampa, Florida, on this 25th day of September
2024.

cc: Counsel of Record

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