AGNELLO v. COLVIN

Filing 11

MEMORANDUM ORDER re 1 COMPLAINT. The decision of the Commissioner is AFFIRMED and plaintiff's application for Disability Insurance Benefits is DENIED. Clerk is directed to close the file. Signed by MAGISTRATE JUDGE CHARLES J KAHN, JR on 02/07/2017. (MB)

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
LEONARD J. AGNELLO, III,
Plaintiff,
v.

Case No. 3:15cv516-CJK

CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.
______________________________/
MEMORANDUM ORDER
This case is before the court pursuant to 42 U.S.C. § 405(g) for review of the
final determination of the Commissioner of Social Security (“Commissioner”)
denying Leonard Agnello’s application for Disability Insurance Benefits (“DIB”)
under Title II of the Social Security Act (“Act”), 42 U.S.C. §§ 401-34. The parties
consented to Magistrate Judge jurisdiction pursuant to 28 U.S.C. § 636(c) and
Federal Rule of Civil Procedure 73 for all proceedings in this case, including entry
of final judgment. Upon review of the record before the court, I conclude the
findings of fact and determinations of the Commissioner are supported by substantial
evidence. The decision of the Commissioner, therefore, will be affirmed and the
application for DIB will be denied.

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ISSUE ON REVIEW
Mr. Agnello, who will be referred to as claimant, plaintiff, or by name, raises
one issue. He claims the Administrative Law Judge (“ALJ”) erred by discounting
the opinion of treating physician Charles R. Thompson, M.D. 1 (Doc. 9).
PROCEDURAL HISTORY
On October 18, 2011, plaintiff protectively filed an application for DIB,
claiming disability beginning May 15, 2011. T. 87.2 The Commissioner denied the
application initially and on reconsideration. T. 86, 98. Claimant appeared before
the ALJ for hearings on August 14, 2013, and March 3, 2014. T. 20, 44. After the
second hearing, the ALJ found claimant was not disabled under the Act. T. 71-81.
The Appeals Council denied a request for further review and, as a result, the ALJ’s
decision became the final determination of the Commissioner.

T. 1-3.

The

determination of the Commissioner is now before the court for review.
FINDINGS OF THE ALJ
In his written decision, the ALJ made a number of findings relative to the
issues raised in this appeal:

1

Plaintiff also claims the ALJ erred by relying on the vocational experts’ responses to hypothetical
questions that did not include the limitations found in Dr. Thompson’s opinion. (Doc. 9, p. 2021). Because finding the ALJ erred in this respect is dependent on finding error in the rejection of
Dr. Thompson’s opinion, it need not be addressed separately.
2

The administrative record filed by the Commissioner consists of 7 volumes (docs. 7-2 through
7-8) and has 517 consecutively numbered pages. References to the record will be by “T.,” for
transcript, followed by the page number.

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•

Claimant has not engaged in substantial gainful activity since May 15,

2011, the alleged onset date. T. 73.
•

Claimant

has

the

following

severe

impairments:

orthostatic

hypotension, dysautonomia, sinus bradycardia with sinus arrhythmia, and obesity.
T. 73.
•

Claimant has the residual functional capacity to perform sedentary

work as defined in 20 C.F.R. § 404.1567(a) except as follows. He can lift and/or
carry 10 pounds occasionally and items of negligible weight frequently. He can
stand and/or walk for 2 hours of an 8-hour workday, no more than 20 minutes at a
time, and sit for 6 hours of an 8-hour workday, no more than 45 minutes at a time.
He can perform occasional pushing and/or pulling with the upper and lower
extremities, bilaterally.

He can perform no balancing, occasional stooping,

occasional kneeling, occasional crouching, occasional crawling, and occasional
climbing of ramps and stairs. He can perform no climbing of ladders, ropes, or
scaffolds.

He can perform occasional overhead reaching, bilaterally; frequent

reaching in other directions, bilaterally; frequent handling, bilaterally; continuous
fingering, bilaterally; and continuous feeling, bilaterally. He can tolerate occasional
exposure to extreme heat and occasional exposure to vibration. He must avoid all
exposure to unprotected heights and dangerous machinery.

He can perform

occasional operation of motor vehicles. He would have one unplanned absence per

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month.

He can sustain concentration and attention for 2-hour periods with

customary breaks. T. 75.
•

Claimant is unable to perform any past relevant work. T. 79.

•

Considering claimant’s age, education, work experience, and residual

functional capacity, there are jobs that exist in significant numbers in the national
economy that claimant can perform. T. 80.
•

Claimant has not been under a disability, as defined in the Act, from

May 15, 2011, through May 21, 2014. T. 81.
STANDARD OF REVIEW
A federal court reviews the “Commissioner’s decision to determine if it is
supported by substantial evidence and based upon proper legal standards.” Lewis v.
Callahan, 125 F.3d 1436, 1439 (11th Cir. 1997); see also Carnes v. Sullivan, 936
F.2d 1215, 1218 (11th Cir. 1991) (“[T]his Court may reverse the decision of the
[Commissioner] only when convinced that it is not supported by substantial evidence
or that proper legal standards were not applied.”). Substantial evidence is “‘such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.’” Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed.
2d 842 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S. Ct.
206, 83 L. Ed. 126 (1938)). “Substantial evidence is something ‘more than a mere
scintilla, but less than a preponderance.’” Dyer v. Barnhart, 395 F.3d 1206, 1210

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(11th Cir. 2005) (quoting Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987)).
Even if the evidence preponderates against the Commissioner’s decision, the
decision must be affirmed if supported by substantial evidence. See Sewell v. Bowen,
792 F.2d 1065, 1067 (11th Cir. 1986)
When reviewing a Social Security disability case, the court “‘may not decide
the facts anew, reweigh the evidence, or substitute [its] judgment for that of the
[Commissioner.]’” Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)
(quoting Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983)); see also
Hunter v. Soc. Sec. Admin., Comm’r, 808 F.3d 818, 822 (11th Cir. 2015) (“In
determining whether substantial evidence supports a decision, we give great
deference to the ALJ’s factfindings.”) (citing Black Diamond Coal Min. Co. v. Dir.,
OWCP, 95 F.3d 1079, 1082 (11th Cir. 1996)). The reviewing court, however, may
not look “only to those parts of the record which support the ALJ[,]” but instead
“must view the entire record and take account of evidence in the record which
detracts from the evidence relied on by the ALJ.” Tieniber v. Heckler, 720 F.2d
1251, 1253 (11th Cir. 1983). Review is deferential to a point, but the reviewing
court conducts what has been referred to as “an independent review of the record.”
Flynn v. Heckler, 768 F.2d 1273, 1273 (11th Cir. 1985).
The Social Security Act defines disability as an “inability to engage in any
substantial gainful activity by reason of any medically determinable physical or

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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). To qualify as a disability, the physical or mental impairment
must be so severe that the plaintiff not only is unable to do his previous work, “but
cannot, considering his 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).
Pursuant to 20 C.F.R. § 404.1520(a)(4), the Commissioner analyzes a
disability claim in five steps:
1.

If the claimant is performing substantial gainful activity, he is not

disabled.
2.

If the claimant is not performing substantial gainful activity, his

impairments must be severe before he can be found disabled.
3.

If the claimant is not performing substantial gainful activity and he has

severe impairments that have lasted or are expected to last for a continuous period
of at least 12 months, and if his impairments meet or medically equal the criteria of
any impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, the claimant is
presumed disabled without further inquiry.

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4.

If the claimant’s impairments do not prevent him from performing his

past relevant work, he is not disabled.3
5.

Even if the claimant’s impairments prevent him from performing his

past relevant work, if other work exists in significant numbers in the national
economy that accommodates the claimant’s residual functional capacity and
vocational factors, he is not disabled.
FACT BACKGROUND AND MEDICAL HISTORY 4
At the August 14, 2013, hearing before the ALJ, Mr. Agnello offered
testimony as to his health, daily activities, and work history. He was born in 1983
and worked primarily as a firefighter and emergency medical technician (“EMT”)
after graduating high school. T. 47-49. On a typical day, “not a whole lot happens”
between the time claimant wakes up and noon. T. 51. When he wakes up, “it’s very
much like [he] didn’t sleep at all that night.” T. 55. Depending on how he feels, he
“may go back to sleep” or “attempt to catch up on some house chores.” T. 51. “[I]f
it feels like a normal good day,” he will “run . . . errands out in town” during the
afternoon. T. 51. He ordinarily tries to return home before 2:00 to 2:30 p.m.,

3

“[C]laimant bears the initial burden of establishing a severe impairment that keeps him from
performing his past work.” Chester v. Bowen, 792 F. 2d 129, 131 (11th Cir. 1986).
4

The recitation of medical and historical facts of this case, as set out below, is based on the court’s
independent review of the record. The facts below, where not derived from the medical records,
are based largely, if not entirely, on plaintiff’s testimony in that regard. Although intended to be
thorough and to provide an overview of the claimant’s history of care and treatment, the synopsis
of medical evidence will be supplemented as necessary in the Analysis section.
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however, “because [he is] going to need [to] nap . . . for a couple hours before [he]
can . . . do anything that evening.” T. 51.
Mr. Agnello usually feels the need to sit after 15 to 20 minutes of continuous
standing. T. 52. He can walk at a slow, casual pace for 15 to 20 minutes before
needing to stop. T. 52. He can sit for 20 to 30 minutes before he has to get up and
move around. T. 52. Each day, plaintiff experiences “neuro-syncope” episodes; the
episodes may be triggered by a variety of events, including moving from a sitting to
standing position, increased mental and physical stress, and performing chores
around the house. T. 53. Plaintiff testified, however, that “[i]t’s been a while since”
his last “full-on fainting[.]” T. 53. Claimant also experiences an “extreme amount
of fatigue” and “chronic nausea [up] to 10-15 times a day.” T. 55-57. He takes
several helpful medications, but is never “totally relieved of the symptoms
associated with [his] dysautonomia.”

T. 58-59.

Because the severity of his

symptoms vary from day-to-day, he does not believe he can be a reliable employee.
T. 54.
At the supplemental hearing held on March 3, 2014, Agnello testified he had
been attending Pensacola State College for the past 3 semesters and was currently
taking 3 classes (12 credit hours). T. 29. The 75-minute-long classes each met 2
times a week. T. 29-30. On average, claimant missed 1 class a week, but his
professors were “able to work with [him].” T. 30.

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On April 19, 2011, plaintiff visited Dr. Steven Lenga and reported: (1)
sleeping more than usual for the previous two weeks; and (2) “if he gets up suddenly
he becomes lightheaded and has . . . tunnel vision like he [is] about to pass out.” T.
359.

While working as a firefighter, he “got up from a lying position and

experienced new symptoms. The next thing he remembered he was laying on the
floor between two bunks.” T. 359. Dr. Lenga assessed “syncopal event/orthostasis
likely associated with [claimant’s] significant weight loss over the past 3 months.”
T. 360. To rule out the presence of significant structural heart disease, Dr. Lenga
ordered an electrocardiogram and echocardiogram; he also gave plaintiff a work
excuse until the test results arrived. T. 360.
The test results were within normal limits with findings of mild sinus
bradycardia and mild tricuspid regurgitation. T. 357-58. On April 27, however,
plaintiff stated he felt “like he is in a boat on water all the time, feeling very shakey
and dizzy.” T. 357. He also indicated he experienced dizziness and shortness of
breath after climbing 3 flights of stairs. T. 357. Dr. Lenga ordered a tilt table test
and referred plaintiff to a neurologist. T. 357.
The neurologist, Dr. Jorge Pelaez, evaluated Agnello on May 3, 2011. T. 35456. Claimant reported he had episodes of dizziness after standing, characterized by
light-headedness, warmth, and shrinking vision; he “blacked out” one time at work,
and does not know how long he was unconscious. T. 354. Although Dr. Pelaez did

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not have access to the full report, he noted the tilt table test “was apparently
abnormal.” T. 354. Pelaez initially diagnosed positional episodes of dizziness with
presyncopal or syncopal episodes appearing likely, but he “doubt[ed] a primary
[central nervous system] etiology.” T. 355. He ordered an electroencephalogram
(“EEG”) and recommended that plaintiff follow seizure precautions at all times,
avoid driving, and stop working until the cause of the symptoms could be clarified.
T. 355.
The EEG was “unremarkable” and “within normal limits.” T. 349, 375.
However, the April 28 tilt table test showed orthostasis when claimant moved from
a supine to standing position. T. 351. Agnello “also demonstrated significant
reflexive tachycardia with a component of . . . positional orthostatic tachycardia[.]”
T. 351. Dr. Lenga prescribed Florinef and restricted plaintiff to administrative duties
until seeing his response to the medication. T. 351, 434. On May 24, 2011, Dr.
Lenga cleared claimant to resume working as an EMT after noting his orthostasis
was “much improved on the Florinef” and he was not having syncope. T. 345-46.
In a June 28 follow-up, Lenga again noted “definite improvement on the Florinef”
and “no overt syncope.”

T. 342.

Plaintiff, however, reported the seasonal

temperature increase caused some lightheadedness. T. 342. Dr. Lenga referred
plaintiff to Dr. Charles Thompson for further treatment. T. 344.

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From July 18, 2011, to January 23, 2014, Dr. Charles Thompson treated Mr.
Agnello. T. 472. During this time, claimant repeatedly complained of dizziness,
lightheadedness, fatigue, near-syncope, nausea, tunnel vision, proximal muscle
weakness in his legs, and chest pains. T. 461, 464, 467, 469, 472, 475-76. On March
6, 2012, plaintiff reported he was “still having a lot of problems” and “had to help
somebody move and had near-syncope with very little exertion.” T. 464. He
reported taking 2 to 3 hour naps in the afternoon due to fatigue and indicated he
continued to experience dizziness, lightheadedness, exercise intolerance, nausea,
and vomiting. T. 464. On October 15, 2012, he reported having a syncopal episode
in the previous 2 to 3 weeks. T. 492.
Dr. Thompson completed a preprinted Medical Source Statement on May 24,
2013, indicating claimant suffered from dysautonomia, syncope, restless leg
syndrome, fibromyalgia, migraines with aura, and chronic fatigue syndrome. T.
489-91. Dr. Thompson concluded claimant: (1) can walk 1 block without rest or
severe pain; (2) can sit for 20 minutes at a time before needing to get up; (3) can
stand for 10 minutes at a time before needing to sit down or walk around; 5 (4) can
sit and stand/walk for less than 2 hours in an 8-hour workday (with normal breaks);
(5) would to need to take unscheduled breaks during the workday; (6) can

5

For the questions concerning claimant’s ability to sit or stand at one time, Dr. Thompson noted
“varies (unable to predict).” T. 490.
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occasionally lift and carry 10 pounds or less; (7) can never lift or carry 20 pounds or
more; (8) can never twist, stoop (bend), or crouch/squat; and (9) can tolerate
moderate work stress. T. 490-91. Dr. Thompson also indicated plaintiff would
likely be absent from work more than 4 days per month as a result of his impairments
and treatment. T. 491.
On August 5, 2013, claimant told Dr. Thompson he drove to Maryland, though
he had a “tough time.” T. 513. He reported performing household chores was
“really difficult.” T. 513. In January 2014 he was doing “fairly well.” T. 510. He
was “taking 3 classes and ha[d] missed a few but not many”; he reported having to
review his lessons several times to retain the information. T. 510.
In January 2012 claimant resumed seeing Susan Lightfoot, a licensed mental
health counselor who treated plaintiff for “depressive symptoms” and “mood
instability” in 2007 and 2008. T. 440. Claimant reported fatigue, nausea, vomiting,
and weight loss, as well as frustration with his inability to engage in activities he
enjoyed. T. 440. He stated he lost his job as a firefighter and paramedic due to
frequent absenteeism. T. 440-41. Lightfoot believed Mr. Agnello suffered from a
mood disorder and an anxiety disorder caused by dysautonomia. T. 441.
In October and November of 2012, Ms. Lightfoot noted plaintiff appeared
stable and relatively cheerful. T. 480-82. Likewise, on December 27, 2012, she
noted: “Appears to be feeling relatively stable, although the change in weather did

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affect him for several days last week with nausea and vomiting, fatigue and pain.”
T. 479. Claimant stated he was “looking forward to starting classes next month.” T.
479. On January 24, 2013, plaintiff “arrived late after sleeping late and was
apologetic.” T. 478. Lightfoot noted Agnello’s “general health is relatively stable
at this time.” T. 478. Claimant decided to drop his online English composition class
because “it would be too hard to do well[.]” T. 478. However, he was also taking a
math class in a conventional classroom and indicated he was “doing well.” T. 478.
Claimant said he “noticed his general health seems better since starting school.” T.
478.
ANALYSIS
Mr. Agnello argues the ALJ erred by discounting the opinion of treating
physician Dr. Thompson. Absent good cause, the opinion of a treating physician
must be accorded considerable or substantial weight by the Commissioner. See
Phillips v. Barnhart, 357 F.3d 1232, 1240-1241 (11th Cir. 2004). “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.” Phillips, 357
F.3d at 1241.
If a treating physician’s opinion on the nature and severity of a claimant’s
impairments is well-supported by medically acceptable clinical and laboratory

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diagnostic techniques, and is not inconsistent with other substantial evidence in the
record, the ALJ must give it controlling weight. See 20 C.F.R. § 404.1527(c)(2).
Where a treating physician has merely made conclusory statements, the ALJ may
afford them such weight as is supported by clinical or laboratory findings and other
consistent evidence of a claimant’s impairments. See Wheeler v. Heckler, 784 F.2d
1073, 1075 (11th Cir. 1986). When a treating physician’s opinion does not warrant
controlling weight, the ALJ must nevertheless weigh the opinion based on: (1) the
length of the treatment relationship and the frequency of examination; (2) the nature
and extent of the treatment relationship; (3) the medical evidence supporting the
opinion; (4) the consistency with the record as a whole; (5) specialization in the
medical impairments at issue; and (6) other factors which tend to support or
contradict the opinion. See 20 C.F.R. § 404.1527(c)(2). “When electing to disregard
the opinion of a treating physician, the ALJ must clearly articulate its reasons.”
Phillips, 357 F.3d at 1241. “[F]ailure to do so is reversible error.” Lewis v.
Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997) (citing MacGregor v. Bowen, 786
F.2d 1050, 1053 (11th Cir. 1986)).
The ALJ concluded the Medical Source Statement completed by Dr.
Thompson on May 24, 2013, “merit[ed] no substantial weight” because it was “not
consistent with the treatment or activities of daily living evidence.” T. 79. The ALJ
noted: (1) Dr. Thompson’s June 20, 2013 treatment notes “indicated the claimant

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reported that taking low doses of Adderall seemed to help his fatigue”; and (2) “the
claimant indicated to Ms. Lightfoot in January 2013, that he had noticed that his
general health seemed better since starting school; and she noted that the claimant
was essentially doing well, regarding his health.” T. 79.
Plaintiff counters the ALJ, arguing that Dr. Thompson’s opinion is supported
by the doctor’s treatment records and “other treatment records,” including: (1) “a
markedly positive tilt table test showing orthostatic hypotension and postural
orthostatic tachychardia syndrome (POTS)”; (2) Dr. Lenga’s records; (3) counselor
Lightfoot’s records; and (4) a Federal Employees Retirement System (“FERS”)
disability determination. (Doc. 9, p. 15-20).
An independent review of the record shows substantial evidence supports the
ALJ’s decision to discount Dr. Thompson’s opinion.

Although plaintiff

characterizes Thompson’s treatment notes as supporting his opinion, the notes
primarily memorialize plaintiff’s subjective statements concerning his condition.
The ALJ, however, found “claimant’s statements concerning the intensity,
persistence and limiting effects of [his] symptoms [were] not entirely credible” and
claimant does not challenge that finding in this appeal. T. 76; T. 78 (“As for the
subjective factors, the claimant’s allegation of disabling dysautonomia is not fully
credible.”); see United States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003)
(“[A] party seeking to raise a claim or issue on appeal must plainly and prominently

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so indicate. Otherwise, the issue—even if properly preserved at trial—will be
considered abandoned.”).

The transcription of plaintiff’s statements into Dr.

Thompson’s notes does not make the statements more credible.
Similarly, the “other treatment records” plaintiff cites to bolster Dr.
Thompson’s opinion do not support reversing the ALJ’s decision. See Sewell v.
Bowen, 792 F.2d 1065, 1067 (11th Cir. 1986) (“Even if the evidence preponderates
against the [Commissioner], we must affirm if the decision is supported by
substantial evidence.”). Although the tilt table test results and Dr. Lenga’s records
support the diagnoses of orthostatic hypotension and POTS, a mere diagnosis does
not establish the severity of a condition. See Moore v. Barnhart, 405 F.3d 1208,
1213 n.6 (11th Cir. 2005) (“[T]he mere existence of these impairments does not
reveal the extent to which they limit [the] ability to work or undermine the ALJ’s
determination in that regard.”). Moreover, claimant began taking medication after
the test, which, as described below, improved claimant’s condition. In fact, Dr.
Lenga indicated plaintiff could resume work as an EMT after noting he was “much
improved on the Florinef.” T. 346.
Contrary to plaintiff’s claim, counselor Lightfoot’s records also support the
ALJ’s decision to discount Dr. Thompson’s opinion. Lightfoot frequently recorded
that Mr. Agnello was doing well and appeared stable. T. 478-82, 484-85. Although
plaintiff told Dr. Thompson on October 15, 2012, that he experienced a syncopal

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episode “about 2 to 3 weeks ago” where he “fell through [a] chain link gate and
broke it[,]” T. 492, visits to Lightfoot on October 2 and October 30 reveal no mention
of the syncopal episode. T. 481-82. On October 2 claimant reported “he has been
‘not too bad’ since [his] last visit” on September 4; on October 30 Lightfoot noted
claimant was “doing well overall” and “his health has remained relatively stable and
he is actively out socially[.]” T. 481-83. Similarly, in December 2012 he stated he
was “looking forward to starting classes next month” and was “more stable with his
health issues,” which “bolster[ed] his confidence on starting a new career at some
point in the future.” T. 479. On January 24, 2013, Lightfoot noted claimant’s
“general health is relatively stable at this time” and claimant “noticed his general
health seems better since starting school.” T. 478.
Further, and as the ALJ noted, Mr. Agnello’s activities of daily living were
inconsistent with the limitations set forth in Dr. Thompson’s opinion. See Macia v.
Bowen, 829 F.2d 1009, 1012 (11th Cir. 1987) (ALJ may consider a claimant’s daily
activities when evaluating his subjective complaints and RFC). Claimant was able
to drive from Florida to Maryland. T. 513. Although he stated he had a “tough time”
and “had to pull over several times due to fatigue,” T. 513, the ability to undertake
such a long trip is inconsistent with Dr. Thompson’s opinion—particularly the
portion indicating claimant can sit for less than 2 hours in an 8-hour workday. T.
490. Likewise, on October 2, 2012, plaintiff told counselor Lightfoot he spent 10

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hours at a concert festival on the beach, T. 482, which is inconsistent with the sitting,
standing, and walking limitations set forth by Dr. Thompson.
The record contains numerous references to other activities which lend further
support to the ALJ’s decision. On July 3, 2012, plaintiff reported travelling “to New
Orleans to see a concert and spend a few days with a good friend and his parents.”
T. 485. The next month he stated he goes out for beers with former coworkers and
plays percussion for a friend composing music. T. 484. He also indicated he can
“complete all personal grooming” without assistance, prepare food in the
microwave, shop, drive himself to appointments, and complete household chores.
T. 259, 269. At the March 3, 2014, hearing, claimant testified that he had completed
2 semesters of college and was taking 12 credit hours during the spring 2014
semester. T. 29. During plaintiff’s most recent visit to Dr. Thompson on January
23, 2014, he confirmed he was taking 3 classes and “doing fairly well”; he “missed
a few but not many.” T. 510.
In addition, the record shows claimant’s condition improved with medication.
See 20 C.F.R. § 404.1529 (noting an ALJ will consider “[t]he type, dosage,
effectiveness, and side effects of any medication you take or have taken” when
evaluating the limiting effects of symptoms). After plaintiff began taking Florinef
in May 2011, Dr. Lenga noted he was “clinically much improved” and could return
to work as an EMT. T. 393, 399. In a January 4, 2012 telephone call with the

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government, Agnello reported suffering from insomnia and exercise intolerance, but
indicated “he has had minimal episodes of lightheade[d]ness or dizziness since
starting on the medications,” stating he experienced only “1 episode in the last 30
days.” T. 259. Likewise, on April 19, 2012, claimant reported only 1 episode of
dizziness in the previous 30 days. T. 269. In March 2012 claimant reported that
moving in with his mother made him “more diligent about taking his medications
routinely,” which “helped his overall physical symptoms.” T. 488. On July 3, 2012,
claimant told counselor Lightfoot that “the beta blocker he has been taking seems to
be helping with his symptoms much more than he expected.” T. 485.
Lastly, Mr. Agnello asserts the FERS determination that he is disabled
supports Dr. Thompson’s opinion. (Doc. 9, p. 17). Although another agency’s
disability determination is not binding on the Commissioner, 20 C.F.R. § 404.1504,
it is entitled to great weight if both agencies’ definitions of disability are similar. See
Falcon v. Heckler, 732 F.2d 827, 831 (11th Cir. 1984) (holding ALJ erred in not
giving great weight to Florida Division of Worker’s Compensation finding of
temporary total disability because Florida Supreme Court interpreted the Florida
statute in such a way that the statute operated similarly to federal social security
law). Claimant noted as to the FERS letter:
In Freese v. Astrue, Case No. 8:06-CV-1839-T-EAJ, 2008 WL
1777722 (M.D. Fla. Apr.18, 2008), the court held that the ALJ failed to
address the evidence in the record of claimant’s Federal Employee
Retirement System disability determination. Although the FERS
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definition of disability may be based on different laws and regulations
than the Social Security Administration’s, the ALJ must still give great
weight to the other agency’s finding if the two definitions are construed
in a like manner. Id. Here, it appears the ALJ did not even consider
Plaintiff’s favorable federal ruling. Therefore, the ALJ’s decision is not
supported by substantial evidence.
(Doc. 9, p. 17-18 n.1).
Plaintiff raised this issue in a footnote within the argument concerning the
evaluation of Dr. Thompson’s opinion. Thus, plaintiff is not independently arguing
that the ALJ’s failure to address the FERS determination is an error of law requiring
remand; instead, plaintiff claims the determination supports Dr. Thompson’s opinion
and demonstrates the ALJ’s decision to reject the opinion is not supported by
substantial evidence. (Doc. 9, p. 17-18); see Anglin v. Soc. Sec. Admin., 602 F.
App’x 483, 484 (11th Cir. 2015) (“To avoid abandonment, a party must plainly and
prominently raise a claim or issue.”) (citing Sapuppo v. Allstate Floridian Ins. Co.,
739 F.3d 678, 680 (11th Cir. 2014)); see also Jernigan, 341 F.3d at 1283 n.8 (holding
argument concerning admission of evidence under Fed. R. Evid. 404(b) was waived
on appeal because appellant did not “devote[] a discrete section of his argument to
claims regarding the evidence of his prior bad acts; instead, each mention of this
evidence is undertaken as background to the claims he does expressly advance or is
buried within those claims”). Moreover, despite clear instruction in the court’s

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briefing order,6 claimant did not elaborate on the import of the FERS determination
or explain how the ALJ’s failure to address it prejudiced him.
Regardless, the FERS determination letter does not undermine the ALJ’s
decision. First, the letter simply informs claimant that his application for disability
retirement was approved; it does not identify the medical condition that rendered
him disabled or explain the rationale for the determination. T. 278-81. See DavisGrimplin v. Comm’r, Soc. Sec. Admin., 556 F. App’x 858, 863 (11th Cir. 2014)
(“[T]he ALJ was plainly justified in giving little weight to the State of Florida’s
disability determination because all that Davis introduced was a one-page,
conclusory document acknowledging that she was receiving worker’s compensation
benefits.”).
Second, the FERS standard for disability differs from the Commissioner’s
standard.

“An applicant for FERS disability retirement must establish by a

preponderance of the evidence that: (1) the applicant completed at least 18 months
of creditable civilian service; (2) while employed in a FERS position, the applicant
became disabled because of a medical condition, resulting in deficient performance,

6

“The memorandum shall specifically identify each issue advanced. The memorandum shall set
out the factual and medical matters relevant to the issues argued and shall specifically cite the
record, as filed by the Commissioner, by page number for factual contentions. The memorandum
shall set ou[t] clearly and concisely plaintiff’s legal contentions with appropriate citation of
authority for each contention advanced. The Court will consider only those errors specifically
identified in the briefs. A general allegation that the ALJ’s findings are unsupported by substantial
evidence is insufficient. As to each issue, plaintiff shall explain how the error attributed to
defendant has prejudiced him.” (Doc. 8, p. 2).
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conduct, or attendance, or if there is no such deficiency, the condition is
incompatible with either useful and efficient service or retention in the position; (3)
the disabling medical condition is expected to continue for at least one year from the
date of the application for disability retirement; (4) accommodation of the disabling
medical condition in the position held is unreasonable; and (5) the applicant has not
declined an offer of reassignment to a vacant position.” Kluge v. Office of Pers.
Mgmt., 293 F. App’x 777, 779 (Fed. Cir. 2008) (citations omitted). FERS disability
applicants, therefore, may be found disabled if they cannot perform their current job
with reasonable accommodation and if they have not declined an offer of
reassignment to a vacant position within their employing agency.
In contrast, disability under Social Security law 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) (emphasis added). Thus, meeting Social Security’s
definition of “disabled” is significantly more difficult than meeting the FERS
definition. See Trevan v. Office of Pers. Mgmt., 69 F.3d 520, 524 (Fed. Cir. 1995)
(“the definition of disability under the Social Security Act—inability to perform any
substantial gainful activity—is stricter than, and logically encompasses, the FERS

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disability definition—inability to perform useful and efficient service in the
employee’s present position or a reasonable reassignment”) (citations omitted).
In light of the differences between the definition of “disabled” used by FERS
and the Commissioner, a determination by FERS that claimant was disabled was not
particularly probative of disability for purposes of social security benefits. See U.S.
ex rel. Loughren v. Unum Grp., 613 F.3d 300, 316 n.22 (1st Cir. 2010) (“An
individual can receive FERS benefits without meeting a definition of disability as
stringent as SSDI’s ‘any occupation’ standard, so it cannot be presumed that an
applicant meeting FERS’s eligibility requirements will also be eligible for SSDI.”)
(citations omitted). Therefore, the ALJ’s failure to discuss the FERS determination
constitutes, at most, harmless error. See Hacia v. Comm’r of Social Sec., 601 F.
App’x 783, 786 (11th Cir. 2015) (“Nor, if the other agency’s standard for
determining disability deviates substantially from the Commissioner’s standard, is it
error for the ALJ to give the agency’s finding less than substantial weight.”).
Accordingly, it is ORDERED:
1.

The decision of the Commissioner is AFFIRMED and plaintiff’s

application for Disability Insurance Benefits is DENIED.
2.

The clerk is directed to close the file.

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DONE AND ORDERED this 7th day of February, 2017.

/s/

Charles J. Kahn, Jr.

CHARLES J. KAHN, JR.
UNITED STATES MAGISTRATE JUDGE

Case No. 3:15cv516-CJK