BORGES v. SAUL

Filing 25

ORDER ADOPTING MAGISTRATE'S REPORT AND RECOMMENDATIONS re 18 Motion for Summary Judgment filed by LIDIA BORGES, 19 Motion for Summary Judgment filed by ANDREW M. SAUL, 21 Report and Recommendations, ; denying 18 Motion for Summary Judgment; granting 19 Motion for Summary Judgment; Adopting 21 Report and Recommendations on 18 Motion for Summary Judgment filed by LIDIA BORGES, 19 Motion for Summary Judgment filed by ANDREW M. SAUL, 21 Report and Recommendations, Closing Case. Motions terminated: 21 REPORT AND RECOMMENDATIONS re 19 Defendant's MOTION for Summary Judgment and Response to Plaintiff's Motion for Summary Judgment with Supporting Memorandum of Law filed by ANDREW M . SAUL, 18 Plaintiff's MOTION for Summary, 19 Defendant's MOTION for Summary Judgment and Response to Plaintiff's Motion for Summary Judgment with Supporting Memorandum of Law filed by ANDREW M. SAUL, 18 Plaintiff's MOTION for Summary Judgment with Supporting Memorandum of Law filed by LIDIA BORGES. Signed by Judge Beth Bloom on 7/19/2021. See attached document for full details. (drz)

Case 1:20-cv-20905-BB Document 25 Entered on FLSD Docket 07/19/2021 Page 1 of 15

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 20-cv-20905-BLOOM/Louis
LIDIA BORGES,
Plaintiff,
v.
ANDREW M. SAUL,
Commissioner of Social Security,
Defendant.
___________________________/
ORDER ADOPTING MAGISTRATE JUDGE’S REPORT AND RECOMMENDATIONS
THIS CAUSE is before the Court upon Plaintiff Lidia Borges’s (“Plaintiff”) Motion for
Summary Judgment, ECF No. [18] (“Plaintiff’s Motion”), and Defendant Andrew Saul,
Commissioner of the Social Security Administration’s (“Defendant”) Motion for Summary
Judgment, ECF No. [19] (“Defendant’s Motion”). Plaintiff seeks judicial review of a final decision
of the Commissioner of the Social Security Administration, which denied Plaintiff’s application
for disability insurance benefits under the Social Security Act, 42 U.S.C. §§ 401, et seq. See ECF
No. [1].
This case was referred to the Honorable Lauren F. Louis, United States Magistrate Judge
for a ruling on all pre-trial, non-dispositive matters and report and recommendations on any
dispositive matters, pursuant to 28 U.S.C. § 636 and Local Magistrate Judge Rule 1. ECF No. [2].
On April 6, 2021, Judge Louis issued a Report and Recommendations recommending that
Plaintiff’s Motion be denied, and that Defendant’s Motion be granted. ECF No. [21] (“R&R”); see
28 U.S.C. § 636(b)(1)(C) (“Within fourteen days after being served with a copy [of a report and
recommendations], any party may serve and file written objections . . . as provided by rules of

Case 1:20-cv-20905-BB Document 25 Entered on FLSD Docket 07/19/2021 Page 2 of 15
Case No. 20-cv-20905-BLOOM/Louis
court.”). Plaintiff timely filed her objections to the R&R, ECF No. [22] (“Objections”), and
Defendant filed a response, ECF No. [23].1 The Court has reviewed both Motions, the record and
the applicable law, has conducted a de novo review of Judge Louis’s R&R in light of the Objections
and supplemental authority, and is otherwise fully advised. See Williams v. McNeil, 557 F.3d 1287,
1291 (11th Cir. 2009) (citing 28 U.S.C. § 636(b)(1)); Macort v. Prem, Inc., 208 F. App’x 781, 784
(11th Cir. 2006) (“Where a proper, specific objection to the magistrate judge’s report is made, it
is clear that the district court must conduct a de novo review of that issue.”).
I.

BACKGROUND
The Court adopts Judge Louis’s description of the procedural and administrative history

and record below, R&R at 1-2, 4-11, and incorporates it by reference.
II.

LEGAL STANDARD
Plaintiff does not object to Judge Louis’s recitation of the standard for judicial review of a

final decision by the Commissioner of the Social Security Administration, which, in any event, is
correct.2 Judicial review of the ALJ’s decision is limited to whether “‘it is supported by substantial
evidence and based on proper legal standards.’” Crawford v. Comm’r, 363 F.3d 1155, 1158 (11th
Cir. 2004) (quoting Lewis v. Callahan, 125 F.3d 1436, 1439 (11th Cir. 1997)). “‘Substantial
evidence is more than a scintilla and is such relevant evidence as a reasonable person would accept
as adequate to support a conclusion.’” Id. (quoting Lewis, 125 F.3d at 1439); accord Hale v.
Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987) (substantial evidence is “more than a mere scintilla,
but less than a preponderance”) (internal quotation and citation omitted). A court, however, “‘may

1

Plaintiff also filed a notice of supplemental authority, ECF No. [24].

The December 4, 2018 ALJ determination became the Commissioner’s “final decision” when the Appeals
Council denied Plaintiff’s request for review. See Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986)
(“[Plaintiff] exhausted his administrative remedies whereupon the ALJ’s determination became the
Secretary’s final decision.”).
2

2

Case 1:20-cv-20905-BB Document 25 Entered on FLSD Docket 07/19/2021 Page 3 of 15
Case No. 20-cv-20905-BLOOM/Louis
not decide the facts anew, reweigh the evidence, or substitute [its] judgment for that of the [ALJ].’”
Winschel v. Comm’r, 631 F.3d 1176, 1178 (11th Cir. 2011) (internal quotation marks and citations
omitted); accord Packer v. Comm’r, Soc. Sec. Admin., 542 F. App’x 890, 891 (11th Cir. 2013)
(“[W]e may not reweigh the evidence or substitute our judgment for that of the ALJ.”) (citing Dyer
v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005)). “A clearly articulated credibility finding with
substantial supporting evidence in the record will not be disturbed by a reviewing court.” Foote v.
Chater, 67 F.3d 1553, 1562 (11th Cir. 1995). Even if evidence preponderates against the ALJ’s
decision, a court must affirm “if the decision is supported by substantial evidence.” Bloodsworth
v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983) (citing 42 U.S.C. § 405(g)).
The R&R likewise properly states the legal and regulatory standards an ALJ must employ
in determining eligibility for disability insurance benefits.
III.

DISCUSSION
i.

The ALJ’s Decision

Because Plaintiff’s Objections focus on the weight given to Plaintiff’s treating doctor’s
opinions, the Court focuses on the portions of the ALJ’s decision discussing those opinions. In
pertinent part, Plaintiff’s treating physical medicine and rehabilitation specialist, Dr. Valbuena,
“concluded that the claimant could perform sedentary work with manipulative and reaching
limitations related to the right upper extremity. Dr. Valbuena state that she could perform medium
activity without significant exacerbation of her impairment or symptoms. Dr. Valbuena said that
the claimant needs to rest for 10 minutes per hour.” ECF No. [16] at 35 (record citations omitted).
The ALJ further noted that “Dr. Valbuena completed the assessment in July 2018, but last
evaluated the claimant in August 2017.” Id.
With respect to the weight given to Dr. Valbuena’s opinion, the ALJ stated the following:

3

Case 1:20-cv-20905-BB Document 25 Entered on FLSD Docket 07/19/2021 Page 4 of 15
Case No. 20-cv-20905-BLOOM/Louis
Dr. Valbuena’s opinion is accorded little weight because even though she briefly
treated the claimant, she had not examined the claimant for almost a year prior to
providing her assessment (Ex. 9F). In addition, Dr. Valbuena did not discuss the
claimant’s active resistance to examination and her non-compliance with treatment.
Furthermore, the claimant’s records note in October 2016 that she should limit
activity for 5 days, but this limitation is given little weight because it is temporary
and does not specify what activities the claimant should avoid (Ex. 7F/3). The
claimant complains of pain in the right shoulder, but largely has no redness,
weakness, or swelling on examination (Ex. 3F, 4F, 6F/2, 7F). Her diagnostic testing
reveals minimal deficits and her subjective complaints seem to be inconsistent with
the overall diagnostic and clinical findings (Ex. 2F, 3F, 4F, 5F, 7F, 8F). The
claimant’s treatment has been conservative with no mention of surgery
recommended for treatment. She testified that she only takes pain medication once
a week, which suggests that her pain is not as severe as she alleges.
Id.
ii.

Plaintiff’s Motion

In Plaintiff’s Motion, she argues that the Court should reverse the Commissioner’s
conclusion that she is not disabled because the decision was not based on substantial evidence.
Specifically, Plaintiff argues that (i) the ALJ’s reasons for according “little weight” to the opinion
of Dr. Valbuena, Plaintiff’s treating physical medicine and rehabilitation specialist, are not
supported by substantial evidence; (ii) the residual functional capacity finding is unsupported by a
medical opinion or substantial evidence; (iii) the ALJ’s reasons for discrediting Plaintiff’s
testimony are not supported by substantial evidence; and (iv) the ALJ’s finding that Plaintiff can
return to her past relevant work is not based on substantial evidence.
iii.

The R&R

In pertinent part, the R&R concluded that the ALJ’s reasons for affording Dr. Valbuena’s
opinion little weight were supported by the evidence. First, Plaintiff did not contest the finding
that Dr. Valbuena had not personally examined Plaintiff for nearly a year before preparing her July
2018 assessment. There was also no indication that Dr. Valbuena reviewed or relied upon any
recent records in making her assessment. As such, the ALJ found Dr. Valbuena’s assessment to be

4

Case 1:20-cv-20905-BB Document 25 Entered on FLSD Docket 07/19/2021 Page 5 of 15
Case No. 20-cv-20905-BLOOM/Louis
conclusory. Second, the R&R concluded that the substantial evidence supported the ALJ’s
determination that Dr. Valbuena’s opinion was contradicted by the record. Third, the R&R
reasoned that even if discounting of Dr. Valbuena’s opinions was in error, it was harmless, because
the opinions were not inconsistent with the ALJ’s ultimate determination. Indeed, the R&R noted
that Dr. Valbuena’s July 2018 assessment concluded that “Plaintiff could perform sedentary work
on a sustained basis” (R. 569), which is consistent with the ALJ’s ultimate determination that
Plaintiff could perform her past relevant work as a data entry clerk, telemarketer supervisor, or
appointment clerk. Finally, the R&R concluded that the substantial evidence, including evidence
of Plaintiff’s non-compliance with physical therapy and resistance to manipulation during
examination, supported the ALJ’s finding that the record evidence did not substantiate the degree
of severity claimed by Plaintiff. In addition, the R&R found no error in the ALJ’s evaluation of
Plaintiff’s subjective complaints, concluding that the ALJ properly considered Plaintiff’s medical
condition as a whole.
iv.

Plaintiff’s Objections

Plaintiff asserts four objections—the first three relate to the weight given to Dr. Valbuena’s
opinion, and the fourth relates to the reasoning for discounting Plaintiff’s subjective complaints.
Specifically, Plaintiff’s objections are as follows:
Objection #1: Plaintiff objects to the Magistrate Judge’s proposed holding that the ALJ
provided sufficient reasons for giving only “little weight” to Dr. Valbuena’s opinion because it
was rendered eleven months after her last examination.
Objection #2: Plaintiff objects to the Magistrate Judge’s proposed holding that the ALJ
provided sufficient reasons for giving only “little weight” to Dr. Valbuena’s opinion because it
was not supported by the record.

5

Case 1:20-cv-20905-BB Document 25 Entered on FLSD Docket 07/19/2021 Page 6 of 15
Case No. 20-cv-20905-BLOOM/Louis
Objection #3: Plaintiff objects to the Magistrate Judge’s proposal that any error by the ALJ
in rejecting Dr. Valbuena’s opinion was harmless.
Objection #4: Plaintiff objects to the Magistrate Judge’s endorsement of the ALJ’s
reasoning for discounting Ms. Borges’s subjective complaints.
a. Objections regarding the weight given to Dr. Valbuena’s opinion (Objections
#1, #2, and #3)
As previously noted, Plaintiff’s first three objections relate to the weight given to Dr.
Valbuena’s opinion by the ALJ. At the outset, the Court notes that these objections suggest that
the Court should view the ALJ’s reasons for assigning that weight independent of one another.
The Court disagrees, however, the objections lack merit when considered both individually or
collectively.
In her decision, the ALJ first noted that Dr. Valbuena had not seen Plaintiff for nearly a
year prior to providing her 2018 assessment in support of Plaintiff’s claim. Moreover, as the R&R
correctly notes, there is no indication that Dr. Valbuena reviewed or relied upon any recent records
in making the assessment. The ALJ’s decision to assign little weight was further based upon
finding that Dr. Valbuena’s opinion contradicted other record evidence and failed to take into
account Plaintiff’s active resistance to examination and her non-compliance with treatment. The
R&R determined that the ALJ’s conclusions were supported by substantial evidence, and that even
if discounting Dr. Valbuena’s opinions was error, such error was harmless because the opinions
were not inconsistent with the ALJ’s ultimate determination.
Although opinions from treating sources are generally accorded great weight, the ALJ can,
if good cause exists, give less weight to such an opinion. Crawford, 363 F.3d at 1159; see also 20
C.F.R. § 404.1527(c)(2). “Good cause” to discount a treating physician’s opinion is established
“when the: (1) treating physician’s opinion was not bolstered by the evidence; (2) evidence

6

Case 1:20-cv-20905-BB Document 25 Entered on FLSD Docket 07/19/2021 Page 7 of 15
Case No. 20-cv-20905-BLOOM/Louis
supported a contrary finding; or (3) treating physician’s opinion was conclusory or inconsistent
with the doctor’s own medical records.’” Winschel, 631 F.3d at 1179 (quoting Phillips v. Barnhart,
357 F.3d 1232, 1241 (11th Cir. 2004)); see also Sryock v. Hecker, 764 F.2d 834, 835 (11th Cir.
1985) (“The law is clear that . . . the ALJ is free to reject the opinion of any physician when the
evidence supports a contrary conclusion.”). Nonetheless, the ALJ must clearly articulate her
reasons for giving less weight to a treating physician’s opinion, and the failure to do so is reversible
error. Lewis, 125 F.3d at 1440.
In Objection #1, Plaintiff objects to the R&R’s finding that the ALJ provided sufficient
reasons for giving only “little weight” to Dr. Valbuena’s opinion, rendered eleven months after
her last examination. Plaintiff argues first that a treating physician’s opinion provided months after
the physician personally examined a claimant does not negate the physician’s knowledge based on
prior examinations. Plaintiff cites to Schink v. Commissioner of Social Security, 935 F.3d 1245,
1260 (11th Cir. 2019) and Boyd v. Heckler, 704 F.2d 1207, 1211 (11th Cir. 1983) for support.
However, neither case supports the proposition advanced by Plaintiff – principally because,
contrary to Plaintiff’s characterization, the ALJ did not assign Dr. Valbuena’s opinion less weight
simply because she made her assessment almost a year after her last treatment of Plaintiff.
In Schink, the ALJ accorded minimal weight to two treating doctors’ opinions and instead
accorded significant weight to the opinions of a non-examining physician and a doctor who had
only seen the claimant once. The ALJ concluded that the treating doctors’ opinions were not wellsupported by medically acceptable clinical and laboratory diagnostic techniques and were
inconsistent with other evidence in the record, the doctors provided only sporadic treatment, their
completed questionnaires used vague language, and their notes reflected only mild limitations. 935
F.3d at 1256. The Eleventh Circuit concluded that the reasons given by the ALJ for discounting

7

Case 1:20-cv-20905-BB Document 25 Entered on FLSD Docket 07/19/2021 Page 8 of 15
Case No. 20-cv-20905-BLOOM/Louis
the two treating physicians’ opinions were insufficient in part because the characterization of the
treating physicians’ treatment as sporadic was incorrect and applied inconsistently, the ALJ
improperly rejected their opinions based on the format of the questionnaires they completed, and
the ALJ failed to clearly articulate what evidence led him to the conclusion that the treating
doctors’ opinions were inconsistent with other substantial evidence in the record. Id. at 1260-62.
Regarding the frequency of treatment, the court noted that “both [treating] doctors
administered significant treatment to [the claimant] multiple times over the course of months
before completing the questionnaires that contained their ultimate opinions[.]” Id. at 1260. One of
the physicians saw the claimant at least three times over the course of five months before providing
his opinion, and the other saw the claimant at least eight times before assessing the plaintiff’s
mental impairments. Id. By contrast, one of the consultative physicians only saw the claimant once,
and the other physician never saw the claimant. Id. at 1261. Under the circumstances, the Eleventh
Circuit concluded that the ALJ’s sporadic treatment rationale could not be considered good cause.
Id.
Here, Plaintiff does not contest that Dr. Valbuena did not see or treat Plaintiff at all in the
eleven months before providing her 2018 assessment, nor does she contest that there is no
indication that Dr. Valbuena consulted any recent records in formulating her opinion. In addition,
unlike in Schink, the ALJ did not assign Dr. Valbuena’s opinion little weight because her treatment
was “sporadic.” Rather, the ALJ noted that Dr. Valbuena had not treated Plaintiff in the eleven
months prior to providing an assessment.
Moreover, the record indicates that Dr. Valbuena provided only limited treatment of
Plaintiff. “The ALJ generally grants more weight to a medical opinion the longer a medical
provided has treated a claimant and the more knowledge that the provider has about a claimant’s

8

Case 1:20-cv-20905-BB Document 25 Entered on FLSD Docket 07/19/2021 Page 9 of 15
Case No. 20-cv-20905-BLOOM/Louis
impairment.” Ross v. Comm’r of Soc. Sec., 794 F. App’x 858, 860 (11th Cir. 2019) (citing 20
C.F.R. § 404.1527(c)(2)(i), (ii)). Indeed, in her 2018 assessment, Dr. Valbuena details that her
department treated the Plaintiff a total of seven times since the time of the alleged onset of
disability in September, 2015, and provides no information regarding how many times of the seven
she personally saw Plaintiff. ECF No. [16] at 572.
Plaintiff further relies on Boyd and argues that the Eleventh Circuit specifically permits
consideration of a doctor’s retrospective opinions, which are similar to Dr. Valbuena’s opinion. In
Boyd, the court found that a doctor who does not treat a claimant during the time of her claimed
disability does not alone render the doctor’s opinion incompetent or irrelevant. 704 F.2d at 1211.
However, Boyd is also distinguishable from the facts presented here. In Boyd, the claimant
sustained an injury to her arm that necessitated insertion of an elbow prosthesis. Id. at 1210.
Initially, her treatment appeared to be successful, but after a few years during which the claimant
did not seek further treatment and her insured status ended, a new treating physician determined
that her operation and treatment had failed. Id. The new physician removed the prosthesis and
concluded that the claimant’s disability dated back to the time of her initial injury. Id. Nevertheless,
the ALJ rendered an unfavorable decision. Under the circumstances, the Eleventh Circuit
determined that the ALJ applied an incorrect legal standard in giving little, if any, weight to the
claimant’s own uncorroborated subjective testimony of pain during the years in which she sought
no treatment and directed that the new treating physician’s medical opinion be considered upon
remand. The Eleventh Circuit thus adopted the position that “a treating physician’s opinion is still
entitled to significant weight notwithstanding that he did not treat the claimant until after the
relevant determination date.” Id. at 1210-11.
The issues and the time gap are different in this case. First, Plaintiff is not relying on Boyd

9

Case 1:20-cv-20905-BB Document 25 Entered on FLSD Docket 07/19/2021 Page 10 of 15
Case No. 20-cv-20905-BLOOM/Louis
for the proposition that the ALJ failed to give her subjective complaints sufficient weight, but
rather that the ALJ erred in assigning little weight to Dr. Valbuena’s opinion. While Boyd
recognized that a retrospective medical opinion is not automatically due lesser weight, the ALJ in
Boyd did not consider the new treating doctor’s opinion at all. Id. Second, and most significantly,
the time gap in this case is not related to a period of Plaintiff’s successful treatment or a
retrospective determination that her previous treatment had failed; rather, Dr. Valbuena’s own
assessment reflects that she did not treat Plaintiff for nearly a year before rendering her opinion in
this case, and gives no indication that she had consulted any of Plaintiff’s more recent medical
records before providing that opinion. “The ALJ assigns more weight to a provider’s opinion based
on the amount of ‘relevant evidence’ provided to support it, as well as the strength of her
explanation.” Ross, 794 F. App’x at 860-61 (citing 20 C.FR. § 404.1527(c)(3). Dr. Valbuena’s
2018 assessment provides no explanation or evidence to support her conclusions.
Plaintiff further indicates that the R&R cites no authority to establish than an ALJ may
reject the opinion of a treating physician because it was rendered a considerable amount of time
after the physician’s last examination. Yet, Plaintiff has provided no authority to establish that an
ALJ’s assigning little weight to a medical opinion based on factors similar to those in this case
constitutes reversible error. The case Plaintiff cites in support, Esparza v. Berryhill, is inapposite.
In Esparza, the claimant argued, and the court ultimately agreed, that the ALJ failed to properly
consider the applicable factors contained in 20 C.F.R. § 404.1527(c). No. 3:17-CV-154-L-BK,
2017 WL 6513634, at *6 (N.D. Tex. Nov. 27, 2017). However, Plaintiff has not made that
argument here. As such, Plaintiff’s first objection is due to be overruled.
In Objection #2, Plaintiff also objects to the R&R’s finding that the ALJ provided sufficient
reasons for the weight given to Dr. Valbuena’s opinion and argues that it is not supported by the

10

Case 1:20-cv-20905-BB Document 25 Entered on FLSD Docket 07/19/2021 Page 11 of 15
Case No. 20-cv-20905-BLOOM/Louis
record. Plaintiff’s Objection #2 is based upon distinguishing this case from the case relied upon by
the R&R, Womble v. Commissioner of Social Security, 705 F. App’x 923, 926-28 (11th Cir. 2017).
In Womble, the court determined that the ALJ did not err in discrediting the claimant’s treating
physicians’ opinions because the opinions were not supported by the doctors’ own treatment notes
or the objective medical evidence, and appeared to have been based primarily on the claimant’s
subjective complaints. 705 F. App’x at 927. In addition, Plaintiff has provided the Court with the
recent case of Simon v. Commissioner, Social Security Administration, --- F.4th ----, 2021 WL
2345638, at *10 (11th Cir. June 9, 2021), in which the court indicates that before rejecting a
treating physician’s opinions as inconsistent with other medical findings, the ALJ must identify a
genuine inconsistency.
Here, the R&R concludes that the ALJ’s determination is supported by the substantial
evidence because there are testing records and medical notes that contradict the more severe
limitations opined in Dr. Valbuena’s July 2018 assessment. Indeed, as noted by the ALJ’s decision,
Plaintiff’s medical records reflect generally unremarkable findings and conservative treatment. For
example, the imaging records indicate that Plaintiff’s joints are normal, see, e.g. ECF No. [16] at
341, 365, 393, 397, 442, and treatment includes painkillers, cortisone injection and home exercises,
see id. at 391, 430, 435. The records also note her non-compliance with treatment, good or
excellent rehabilitation potential, and decrease in pain when she participated in physical therapy
exercises. See id. at 406, 418, 420. In her objection, Plaintiff points to the existence of Jackson
Memorial Hospital records, suggesting that such records support Dr. Valbuena’s conclusions.
Specifically, the Jackson records Plaintiff points to document two tests indicating osteoarthritic
changes of the right shoulder and tendinopathy of the supraspinatus tendon in 2016, and carpal
tunnel in 2018. As such, Plaintiff contends that the Court should reject the R&R’s conclusion that

11

Case 1:20-cv-20905-BB Document 25 Entered on FLSD Docket 07/19/2021 Page 12 of 15
Case No. 20-cv-20905-BLOOM/Louis
the ALJ’s determination is supported by the substantial evidence. Plaintiff’s contention fails for
two reasons.
First, Plaintiff selectively picks only two pieces of evidence that she believes support her
claims. The ALJ, however, noted that despite the 2018 study’s finding of carpal tunnel, Plaintiff
had not complained of carpal tunnel syndrome, and carpal tunnel syndrome was not one of the
impairments found by the ALJ. See ECF No. [16] at 33. Plaintiff has not argued that this finding
was erroneous. Thus, the 2018 test showing carpal tunnel does not in fact support Plaintiff’s
claimed disability. In addition, Plaintiff does not otherwise explain how the two tests indicating
osteoarthritic changes of the right shoulder and tendinopathy of the supraspinatus tendon support
Dr. Valbuena’s conclusions. A review of the record demonstrates that the medical evidence relied
upon by the ALJ and cited in her decision does not support the limitations set forth in Dr.
Valbuena’s assessment. See id. at 35-37.
Second, the Court may not reweigh the evidence or substitute its judgment for the judgment
of the ALJ. Packer, 542 F. App’x at 891 (citing Dyer, 395 F.3d at 1210). So long as the ALJ gives
clear reasons for assigning lesser weight to a treating physician’s opinion, the Court should not
reassess the weight given by the ALJ. Hunter v. Soc. Sec. Admin. Comm’r, 808 F.3d 818, 823 (11th
Cir. 2015) (concluding that ALJ’s rationale for assigning less weight to treating physician’s
opinion, based on his finding that the opinion was inconsistent with medical records and other
evidence, was adequate). As in Hunter, the ALJ’s reasons for assigning Dr. Valbuena’s opinion
little weight in this case are adequate, and the Court will not second guess the ALJ. See id. (“We
will not second guess the ALJ about the weight the treating physician’s opinion deserves so long
as he articulates a specific justification for it.”).
Nor does Simon, the supplemental authority provided by Plaintiff, compel a different

12

Case 1:20-cv-20905-BB Document 25 Entered on FLSD Docket 07/19/2021 Page 13 of 15
Case No. 20-cv-20905-BLOOM/Louis
outcome. In Simon, the claimant asserted that he was disabled due to his deteriorating mental
health. 2021 WL 2345638, at *1. The ALJ gave little or no weight to the claimant’s treating
psychiatrist on the conclusory basis that his opinions were “inconsistent with the longitudinal
history.” Id. at *5. In finding that the ALJ’s reasons for discounting the psychiatrist’s opinions
were not sufficient, the Eleventh Circuit noted that the treating doctor’s notes were extensive and
spanned more than thirty meetings with the claimant across four years. Id. at 8. In this case, the
ALJ noted that Dr. Valbuena only “briefly treated the claimant,” ECF No. [16] at 35, and Dr.
Valbuena’s assessment itself acknowledges that Plaintiff was seen seven times over the course of
three years, yet does not specify how many of those times Dr. Valbuena herself saw Plaintiff.
Moreover, the Eleventh Circuit in Simon characterized the ALJ’s discounting of the treating
physician’s opinion as a “complete failure to engage with significant portions of Dr. Turner’s
clinical findings, which verge[d] on a blatant mischaracterization of Simon’s medical records
. . . .” Id. at *9. Plaintiff makes no such contention in this case and has not identified any portions
of the medical records which the ALJ did not consider. Plaintiff simply disagrees with the ALJ’s
reasons for assigning Dr. Valbuena’s opinion little weight. As such, Plaintiff’s second objection is
due to be overruled.
In Objection #3, Plaintiff objects to the R&R’s conclusion that any error in the weight
assigned to Dr. Valbuena’s opinion by the ALJ is harmless. However, because the Court rejects
Plaintiff’s first two objections to the R&R’s conclusions regarding Dr. Valbuena’s opinion,
Plaintiff’s third objection necessarily fails. In addition, Plaintiff’s third objection is a mere
disagreement with the R&R and is therefore not a proper objection. Accordingly, Plaintiff’s third
objection is overruled.

13

Case 1:20-cv-20905-BB Document 25 Entered on FLSD Docket 07/19/2021 Page 14 of 15
Case No. 20-cv-20905-BLOOM/Louis
b. Objection to the reasoning for discounting Plaintiff’s subjective complaints
(Objection #4)
The ALJ found that the record evidence does not support the degree of severity claimed by
Plaintiff. The R&R concluded that this finding is supported by substantial evidence, and that the
ALJ properly considered Plaintiff’s medical condition in determining that the intensity,
persistence, and limiting effects of Plaintiff’s symptoms are not entirely consistent with the
medical evidence and other record evidence.
Plaintiff objects to this portion of the R&R, contending that the endorsement of the ALJ’s
reasoning for discounting Plaintiff’s subjective complaints should be rejected for four reasons—
because the ALJ (1) engaged in selective record citation in finding a lack of support by objective
evidence; (2) incorrectly suggested that Plaintiff was required to show that she was precluded from
performing all work-related activities and unable to perform basic work activities; (3) erroneously
characterized her treatment history as consistent with an ability to work; and (4) incorrectly
concluded that evidence about her limited daily activities failed to weigh in her favor because of a
lack of objective evidence that the claimant requires around the clock assistance for daily living.
Plaintiff’s objection, however, is the same argument previously made in her Motion. See
ECF No. [18] at 19-23. “It is improper for an objecting party to . . . submit [ ] papers to a district
court which are nothing more than a rehashing of the same arguments and positions taken in the
original papers submitted to the Magistrate Judge. Clearly, parties are not to be afforded a ‘second
bite at the apple’ when they file objections to a R & R.” Marlite, Inc. v. Eckenrod, 2012 WL
3614212, at *2 (S.D. Fla. Aug. 21, 2012) (quoting Camardo v. Gen. Motors Hourly-Rate Emps.
Pension Plan, 806 F. Supp. 380, 382 (W.D.N.Y.1992)). In the R&R, Judge Louis considered at
length Plaintiff’s arguments in finding that they lack merit. As such, Plaintiff’s final objection is
overruled.

14

Case 1:20-cv-20905-BB Document 25 Entered on FLSD Docket 07/19/2021 Page 15 of 15
Case No. 20-cv-20905-BLOOM/Louis
IV.

CONCLUSION
Upon careful review, the Court finds Magistrate Judge Louis’s R&R to be well reasoned

and correct, and agrees with the analysis in the R&R. Accordingly, it is ORDERED AND
ADJUDGED as follows:
1. Plaintiff’s Objections, ECF No. [22], are OVERRULED, and the R&R, ECF
No. [21], is ADOPTED;
2. Plaintiff’s Motion for Summary Judgment, ECF No. [18], is DENIED;
3. Defendant’s Motion for Summary Judgment, ECF No. [19], is GRANTED;
4. The Clerk of Court shall CLOSE this case.
DONE AND ORDERED in Chambers at Miami, Florida, on July 19, 2021.

________________________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE
Copies to:
Counsel of record
The Honorable Lauren F. Louis

15