Cabrera v. Commissioner of Social Security Administration

Filing 23

ORDER denying 13 Motion for Summary Judgment; granting 18 Motion for Summary Judgment; Adopting 20 Report and Recommendations. Closing Case. Signed by Judge Darrin P. Gayles (hs01) NOTICE: If there are sealed documents in this case, they may be unsealed after 1 year or as directed by Court Order, unless they have been designated to be permanently sealed. See Local Rule 5.4 and Administrative Order 2014-69.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO: 14-23071-CIV-GAYLES/TURNOFF

REGLA CABRERA,
Plaintiff,
vs.
CAROLYN W. COLVIN,
acting Commissioner of
Social Security,
Defendant.
____________________________/
ORDER
On August 20, 2014, Plaintiff Regla Cabrera (“Plaintiff”) filed a Complaint seeking a
review of Defendant Carolyn W. Colvin’s (“Defendant”) decision denying supplemental security
income under Title XVI of the Social Security Act (the “Act”). [ECF No. 1]. This matter was
referred to Magistrate William J. Turnoff for a report and recommendation on dispositive matters
[ECF No. 3]. Thereafter, the parties filed their respective cross-motions for Summary Judgment
[ECF Nos. 13 & 18]. On August 24, 2015, Judge Turnoff issued a Report and Recommendation
(“Report”) [ECF No. 20], recommending that the Court deny Plaintiff’s motion, grant
Defendant’s motion, and affirm the decision of the Administrative Law Judge (the “ALJ”).
On September 11, 2015, Plaintiff filed her objections to the Report (“Objections”) [ECF
No. 21]. When a magistrate judge’s “disposition” has been properly objected to, district courts
must review the disposition de novo. Fed R. Civ. P. 72(b)(3). The Court has carefully reviewed
the written submissions, the record, and the applicable law and, for the following reasons, the
Report is AFFIRMED and ADOPTED and Plaintiff’s Objections are OVERRULED.

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In his comprehensive analysis, Magistrate Judge Turnoff considered the four issues
Plaintiff raised in her effort to reverse the ALJ’s decision: (1) whether the Appeals Council
committed reversible error in failing to remand this matter to the ALJ for consideration of the
newly submitted evidence; (2) whether the ALJ erred in his evaluation of the medical opinion
evidence; (3) whether the ALJ failed to properly consider Plaintiff’s subjective complaints; and
(4) whether the ALJ erred by failing to obtain vocational expert testimony given Plaintiff’s nonexertional limitations. Judge Turnoff found no reversible error with either the Appeals Council
or the ALJ’s decision.
When reviewing an ALJ’s decision, the Court’s role is to determine whether substantial
evidence supported that decision. See 42 U.S.C. § 405(g); Kelley v. Apfel, 185 F.3d 1211, 1213
(11th Cir.1999). Substantial evidence is less than a preponderance, but is “more than a scintilla,
and must do more than create a suspicion of the existence of the fact to be established; it means
such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir.1988). In determining whether substantial
evidence exists, the Court must view the record as a whole, taking into account evidence
favorable as well as unfavorable to the Commissioner’s decision Foote v. Chater, 67 F.3d 1553,
1560 (11th Cir. 1995). Furthermore, “the reviewing court must be satisfied that the decision is
grounded in the proper application of the appropriate legal standards.” Lamb v. Bowen, 847 F.2d
698, 701 (11th Cir.1988). The Court is not, however, permitted to reweigh the evidence the ALJ
considered. Bridges v. Bowen, 815 F.2d 319, 321 (11th Cir. 1989). The Court must reverse the
decision only if the ALJ fails to “provide the reviewing court with sufficient reasoning for
determining that the proper legal analysis has been conducted.” Cornelius v. Sullivan, 936 F.2d
1143, 1145–46 (11th Cir. 1991). Otherwise, this Court must affirm the decision of an ALJ that is

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supported by substantial evidence. Kramerman v. Colvin, No. 13-20333-CIV, 2015 WL 965763,
at *5 (S.D.Fla. Mar. 4, 2015).
In her Objections, Plaintiff primarily reargues the issues raised in her Motion for
Summary Judgment. In addition, Plaintiff asserts that the Report is conclusory and fails to
address her arguments. The Court disagrees and addresses each issue in turn.
I.

The Appeals Council Did Not Err in Denying Remand
Plaintiff asserts that the Appeals Council erred when it failed to remand her action to the

ALJ based on newly submitted evidence. In support of her appeal, Plaintiff submitted the
statement of her treating physician, Dr. Mascaro, and a Mental Capacities Evaluation (“MCE”)
prepared by Dr. Miro, a consulting psychiatrist. In denying Plaintiff’s request for review, the
Appeal’s Council found, in part, that the newly submitted evidence did not provide a basis for
changing the ALJ’s decision. The Appeals Council also stated that Dr. Miro’s MCE related to a
time after the ALJ’s decision and, therefore, did not provide cause to change the decision.
As set forth in the Report, Dr. Mascaro’s sworn statement fails to establish error in the
ALJ’s decision. It merely recites much of what was already in the record and does not provide a
basis for remand. See Mitchell v. Comm’r of Soc. Sec., 771 F.3d 780, 784-85 (11th Cir. 2014)
(review “denied because the additional evidence failed to establish error in the ALJ’s decision”).
The Appeals Council did, however, incorrectly find that Dr. Miro’s MCE related to a
time after the ALJ’s decision. A review of the MCE shows that, although Dr. Miro signed it on
May 20, 2013, it relates to her February 18, 2011, evaluation and March 1, 2011, report.
Therefore, this new evidence does indeed relate to the relevant time period. The Appeals
Council’s factual error, however, is not dispositive of the issue. The Appeals Council must only
grant a petition for review if the ALJ’s “action, findings, or conclusion is contrary to the weight

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of the evidence.” Atha v. Comm’r of Soc. Sec., No. 14-15395, 2015 WL 3915761 at *4 (11th Cir.
June 26, 2015) (quoting Ingram v. Comm’r of Soc. Sec., 496 F.3d 1253, 1262 (11th Cir. 2007)).
When, as in this action, the Appeals Council denies review based on new evidence, this Court
only considers whether the new evidence “renders the denial of benefits erroneous.” Id. (quoting
Ingram, 496 F.3d at 1262). The Court finds that Dr. Miro’s MCE is duplicative of her prior
consultative opinion and does not render the ALJ’s decision erroneous.
II.

The ALJ Did Not Err in Evaluating the Medical Opinion Evidence
Plaintiff also argues that the ALJ erred in his evaluation of Dr. Mascaro, Dr. Miro, and

Dr. Bauer’s opinions. The Court disagrees. The ALJ provided reasons, supported by substantial
evidence, for the weight he placed on each opinion. Where good cause exists not to give weight
to the medical evidence of a treating physician, such as Dr. Mascaro, it is acceptable for an ALJ
to refuse to do so. See Weaver v. Comm’r of Social Security, 597 Fed. App’x 864 (11th Cir.
2014).

The ALJ found that Dr. Mascaro’s opinion was inconsistent with his treatment notes.

Similarly, the ALJ found that Mr. Miro’s opinion was inconsistent with her psychological
findings and focused primarily on Plaintiff’s subjective reports. This Court finds no error in the
ALJ’s findings and, even if it did disagree with some of the ALJ’s factual findings, his decision
must be affirmed as it is supported by substantial evidence in the record. See Martin v. Sullivan,
894 F.2d 1520, 1529 (11th Cir. 1990).
The ALJ gave considerable weight to Dr. Bauer, the State Agency psychologist.
Plaintiff, however, argues that Dr. Bauer’s opinion does not support the ALJ’s finding that
Plaintiff’s only mental limitation is that she is limited to unskilled work. In Section I of the
Mental Residual Functional Capacity Form (“MRFC”), Dr. Bauer indicated that Plaintiff was
moderately limited in her ability to perform at a consistent pace without an unreasonable number

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and length of rest periods and in her ability to respond appropriately to supervisors. However, in
Section III of the MRFC, Dr. Bauer opined that Plaintiff could persist at simple routine tasks for
a regular workday at an appropriate pace and could sustain at this level over weeks and months.
Plaintiff asserts that Dr. Bauer’s statements in Section I contradict the ALJ’s Residual Functional
Capacity (“RFC”) finding. This Court disagrees. Section I of the MRFC is only a summary and
does not constitute an RFC assessment. See Land v. Comm’r of Soc. Sec., 494 F.App’x 47, 49
(11th Cir. 2012).

Section III constitutes the doctor’s actual residual functional capacity

assessment. See Commissioner’s Program Operations Manual § 24510.060(B)(4). The ALJ
found Dr. Bauer’s opinion, as set forth in Section III, consistent with the record medical
evidence. Accordingly, substantial evidence supports the ALJ’s RFC finding.
III.

Substantial Evidence Support’s the ALJ’s Findings Regarding Plaintiff’s
Credibility
Plaintiff asserts that the ALJ failed to consider her subjective complaints and that

substantial evidence does not support his credibility findings. As detailed in the Report, the ALJ
considered Plaintiff’s subjective complaints in conjunction with her medical records and did not
find her subjective complaints credible. “Credibility determinations about a claimant’s subjective
testimony are reserved for the ALJ.” Krammerman v. Comm’r of Soc. Sec., No. 13-20333, 2015
WL 965763, at *10 (S.D. Fla. Mar. 4, 2015) (citing Lanier v. Comm’r of Soc. Sec., 252 F. App’x
311, 314 (11th Cir. 2007). Should an ALJ choose to discredit a claimant’s testimony based on
the record, she must articulate “explicit and adequate reasons for doing so.” Id. But that
articulation only requires an ALJ to enable the court to determine that he/she considered the
claimants medical condition as a whole. See Fite v. Colvin, NO.5:11-CV-4001-VEH, 2013 WL
6635928, at * 9 (N.D. Ala. Dec. 17, 2013). The ALJ’s decision properly sets forth his reasons

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for discrediting Plaintiff’s testimony.

Accordingly, the Court agrees with Judge Turnoff’s

recommendation and finds no error by the ALJ.
IV.

The ALJ Was Not Required to Obtain Vocational Expert Testimony
To determine whether there were jobs in the economy that Plaintiff could perform, the

ALJ relied on the Medical-Vocational Guidelines (“Grids”). The Grids are tables that assess a
claimant’s ability to work by matching her age, education, and work experience with her work
capability. See 20 C.F.R. pg. 404, subpt. P, app.2. The ALJ applied the Grids to Plaintiff and
found that work existed in significant numbers in the economy that she could perform.
Plaintiff argues that due to her non-exertional limitations, the ALJ was required to rely on
a vocational expert in place of the Grids. As correctly set forth in the Report, the existence of
non-exertional limitations does not alone require the ALJ to use a vocational expert in place of
the Grids. See Phillips v. Barnhart, 357 F.3d 1232, 1242 (11th Cir. 2004). The Court finds no
error with the ALJ’s exclusive use of the Grids to find that Plaintiff was “not disabled.”

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CONCLUSION
The Court has reviewed the Report, the record, and the applicable law de novo. In light
of that review, the Court agrees with the analysis and recommendations stated in the Report and
with the conclusions set forth therein.
Accordingly, it is hereby
ORDERED AND ADJUDGED that the Report [ECF No. 20] is AFFIRMED AND
ADOPTED as follows:
1.

The Plaintiff’s Motion for Summary Judgment [ECF No. 13] is DENIED.

2.

The Defendant’s Motion for Summary Judgment [ECF No. 18] is GRANTED.
It is further ORDERED AND ADJUDGED as follows:

1.

The Plaintiff’s Objections [ECF No. 21] are OVERRULED.

2.

The Clerk of Court is directed to CLOSE this case and all pending motions are DENIED as

moot.
DONE AND ORDERED in Chambers at Miami, Florida, this 25th day of September,
2015.

________________________________
DARRIN P. GAYLES
UNITED STATES DISTRICT JUDGE
cc:

Magistrate Judge Turnoff
All Counsel of Record

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