DANIEL C. IRICK, Magistrate Judge.
James T. Boylan (Claimant) appeals to the District Court from a final decision of the Commissioner of Social Security (the Commissioner) denying his application for disability insurance benefits. Doc. 1; R. 1-6, 12, 142-43. Claimant argued (1) that the Administrative Law Judge (the ALJ) erred by failing to properly weigh the opinion of Richard A. Hynes, M.D. (Dr. Hynes) and (2) that the Appeals Council erred by rejecting new evidence submitted by Claimant. Doc. 23 at 20-25; 28-31. For the reasons set forth below, the Commissioner's final decision is
In September 2014, Claimant filed an application for disability insurance benefits. R. 19. Claimant alleged a disability onset date of March 19, 2014. Id. Claimant later amended his alleged disability onset date to April 30, 2014. R. 21.
The ALJ issued the decision on July 6, 2017. R. 19-36. In the decision, the ALJ found that Claimant had the following severe impairments: spine disorder, carpal tunnel syndrome, and status post left shoulder debridement. R. 23. The ALJ also found that Claimant had the following non-severe impairments: restless leg syndrome, sleep apnea, depression, and anxiety. Id. The ALJ found that Claimant had an RFC to perform less than a full range of light work as defined by 20 C.F.R. § 404.1567(b).
Id. The ALJ posed a hypothetical question to the VE that was consistent with the foregoing RFC determination, and the VE testified that Claimant was capable of performing Claimant's past work as generally performed and jobs in the national economy. R. 49-51. The ALJ then found both that Claimant was capable of performing his past relevant work and that Claimant was capable of performing jobs that existed in significant numbers in the national economy. R. 33-35. Therefore, the ALJ found that Claimant was not disabled between the amended alleged onset date and the date of the ALJ's decision. R. 35.
Claimant requested that the Appeals Council review the ALJ's decision and submitted two documents to the Appeals Council as additional evidence. See Doc. 23 at 28. The Appeals Council found no basis for changing the ALJ's decision, stating, in part, that the additional evidence Claimant submitted "does not show a reasonable probability that it would change the outcome of the decision." R. 1-6. Therefore, the ALJ's decision became the Commissioner's final decision. This appeal followed.
The scope of the Court's review is limited to determining whether the Commissioner applied the correct legal standards and whether the Commissioner's findings of fact are supported by substantial evidence. Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011). The Commissioner's findings of fact are conclusive if they are supported by substantial evidence, 42 U.S.C. § 405(g), which is defined as "more than a scintilla and is such relevant evidence as a reasonable person would accept as adequate to support a conclusion." Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997). The Court must view the evidence as a whole, taking into account evidence favorable as well as unfavorable to the Commissioner's decision, when determining whether the decision is supported by substantial evidence. Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995). The Court may not reweigh evidence or substitute its judgment for that of the Commissioner, and, even if the evidence preponderates against the Commissioner's decision, the reviewing court must affirm it if the decision is supported by substantial evidence. Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983).
At step four of the sequential evaluation process, the ALJ assesses the claimant's RFC and ability to perform past relevant work. Phillips, 357 F.3d at 1238. "The residual functional capacity is an assessment, based upon all of the relevant evidence, of a claimant's remaining ability to do work despite his impairments." Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997). The ALJ is responsible for determining the claimant's RFC. 20 C.F.R. § 404.1546(c). In doing so, the ALJ must consider all relevant evidence, including, but not limited to, the medical opinions of treating, examining, and non-examining medical sources. 20 C.F.R. § 404.1545(a)(1), (3); see also Rosario v. Comm'r of Soc. Sec., 877 F.Supp.2d 1254, 1265 (M.D. Fla. 2012).
The weighing of treating, examining, and non-examining physicians' opinions is an integral part of steps four and five of the sequential evaluation process. See Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176 (11th Cir. 2011). The ALJ must consider a number of factors in determining how much weight to give each medical opinion, including: 1) whether the physician has examined the claimant; 2) the length, nature, and extent of the physician's relationship with the claimant; 3) the medical evidence and explanation supporting the physician's opinion; 4) how consistent the physician's opinion is with the record as a whole; and 5) the physician's specialization. 20 C.F.R. § 404.1527(c).
A treating physician's opinion must be given substantial or considerable weight, unless good cause is shown to the contrary. Winschel, 631 F.3d at 1179; see also 20 C.F.R. § 404.1527(c)(2) (giving controlling weight to the treating physician's opinion unless it is inconsistent with other substantial evidence). "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." Winschel, 631 F.3d at 1179 (quotation marks omitted).
On April 23, 2015, Dr. Hynes completed a Physical Restrictions Evaluation of Claimant wherein Dr. Hynes opined, in part, that Claimant can never climb, kneel, or crawl; will be absent three or more times per month; should use a cane for extended walking; can sit for a total of three to four hours per day and can stand or walk for a total of three to four hours per day; and would require lying down or reclining for about fifteen to thirty minutes every three to four hours. R. 530-32. After summarizing Dr. Hynes' opinion, the ALJ stated as follows:
R. 31-32 (emphasis added).
Claimant argues that the ALJ erred in giving Dr. Hynes' opinion little weight. R. 21-25. Specifically, Claimant argues that the ALJ "never explains why she gave little weight to Dr. Hynes' opinion when she found that it was supported by his notes and imaging studies." R. 22. However, despite arguing that the ALJ never explained the decision to give little weight to Dr. Hynes' opinion, Claimant proceeded to address the ALJ's finding that Dr. Hynes' opinion conflicted with other medical evidence in the record. R. 23-25. But Claimant failed to provide any specific argument to explain why the ALJ's decision was not supported by substantial evidence, instead citing evidence that Claimant believes supports his position. Id.
Upon review, the Court finds that the ALJ's decision to give Dr. Hynes' opinion little weight is supported by substantial evidence. As the ALJ noted in the decision, Dr. Weiss' examination records indicate normal gait, station, and toe and heel walking; normal strength symmetric in all four extremities; normal reflexes symmetric in the upper and lower extremities; and intact sensation to pin, touch, vibratory, position sense, and parietal testing in all four extremities. R. 418, 516. In addition, other medical evidence of record — such as Dr. Anciro's examinations — provide substantial evidence to support the ALJ's decision. See, e.g., R. 376, 381, 386, 392, 401, 433-35, 472, 540-43 (no acute distress, full range of motion, normal muscle strength and tone, no gait abnormality). And although Claimant argues, in conclusory fashion, that the ALJ ignored findings supportive of Dr. Hynes' opinion, there is nothing in the ALJ's decision to suggest that was the case. Indeed, the ALJ explicitly discussed findings supportive of Dr. Hynes' opinion. Regardless, Claimant waived this argument by raising it in a perfunctory manner. See, e.g., Jacobus v. Comm'r of Soc. Sec., No. 15-14609, 2016 WL 6080607, at *3 n.2 (11th Cir. Oct. 18, 2016) (stating that claimant's perfunctory argument was arguably abandoned); Gombash v. Comm'r of Soc. Sec., 566 Fed. App'x. 857, 858 n.1 (11th Cir. 2014) (stating that the issue was not properly presented on appeal where claimant provided no supporting argument); NLRB v. McClain of Ga., Inc., 138 F.3d 1418, 1422 (11th Cir. 1998) ("Issues raised in a perfunctory manner, without supporting arguments and citation to authorities, are generally deemed to be waived."); Gaskey v. Colvin, No. 4:12-CV-3833-AKK, 2014 WL 4809410, at *7 (N.D. Ala. Sept. 26, 2014) (refusing to consider claimant's argument when claimant failed to explain how the evidence undermined the ALJ's decision) (citing Singh v. U.S. Atty. Gen, 561 F.3d 1275, 1278 (11th Cir. 2009) ("[A]n appellant's simply stating that an issue exists, without further argument or discussion, constitutes abandonment of that issue and precludes our considering the issue on appeal.")). Further, Claimant's citation to evidence that Claimant believes supports Dr. Hynes' opinion is unpersuasive. The only issue is whether there is substantial evidence to support the ALJ's decision. The Court will not reweigh the evidence. See Phillips, 357 F.3d at 1240 n.8 (stating that the court "`may not decide the facts anew, reweigh the evidence, or substitute [its] judgment for that of the [Commissioner]'") (citation omitted). Finally, the Court notes that Claimant appears to argue that the ALJ erroneously relied upon evidence regarding Claimant's shoulder when discounting Dr. Hynes' opinion, which was based upon Claimant's back issues. But Claimant's assertion is not supported by the record. Indeed, the ALJ specifically noted that Dr. Hynes' medical opinion was based primarily on Claimant's lumbar spine impairment. R. 32. And Claimant provided no persuasive argument to suggest that the ALJ relied on medical evidence regarding Claimant's shoulder when discounting Dr. Hynes' opinion.
In addition to the foregoing, Claimant also appears to argue that the ALJ erred by giving great weight to a non-examining state medical consultant's opinion. R. 24-25. But Claimant provided no specific argument whatsoever to explain how the ALJ erred when weighing the state medical consultant's opinion.
Accordingly, the Court rejects Claimant's first assignment of error.
A claimant is generally permitted to present new evidence at each stage of the administrative process. Ingram v. Comm'r of Soc. Sec., 496 F.3d 1253, 1261 (11th Cir. 2007). The Appeals Council must consider evidence that was not presented to the ALJ when that evidence is new, material, and chronologically relevant. Id.; see 20 C.F.R. § 404.970(a)(5). A piece of evidence is new if it is not cumulative of other evidence in the record, see Robinson v. Astrue, 365 F. App'x 993, 996 (11th Cir. 2010), it is material if "there is a reasonable possibility that the new evidence would change the administrative outcome," Hyde v. Bowen, 823 F.2d 456, 459 (11th Cir. 1987), and it is chronologically relevant if it "relates to the period on or before the date of the [ALJ's] hearing decision," 20 C.F.R. § 404.970(a)(5). The Appeals Council must grant the petition for review if the ALJ's "action, findings, or conclusion is contrary to the weight of the evidence currently of record." Ingram, 496 F.3d at 1261.
The Appeals Council has the discretion to not review the ALJ's decision denying benefits. Washington v. Soc. Sec. Admin., Comm'r, 806 F.3d 1317, 1320 (11th Cir. 2015). If the Appeals Council considers new evidence but denies review, the Appeals Council is not required to articulate its reasons for denying review. Mitchell v. Comm'r, Soc. Sec. Admin., 771 F.3d 780, 784-85 (11th Cir. 2014). If a claimant challenges the Appeals Council's denial, the reviewing court must determine whether the new evidence renders the denial of benefits erroneous. Id. at 785 (citing Ingram, 496 F.3d at 1262).
Here, Claimant submitted two documents to the Appeals Council for review — one from Dr. Hynes and one from Dr. Weiss. The Appeals Council stated as follows with regard to these documents: "We find this evidence does not show a reasonable probability that it would change the outcome of the decision. We did not consider and exhibit this evidence." R. 2. Claimant argues that the Appeals Council erred by rejecting these documents. Doc. 23 at 28-31. The Court disagrees.
The first document at issue is a signed statement from Dr. Hynes in which Dr. Hynes stated as follows:
R. 12. Claimant appears to argue that Dr. Hynes' foregoing statement is material because it clarifies that the Physical Restriction Evaluation represented Dr. Hynes' professional opinion and was not merely a "parroting" of Claimant's subjective limitations.
The second document at issue is an opinion signed by Dr. Weiss in which Dr. Weiss agreed with the limitations opined to by Dr. Hynes in the Physical Restriction Evaluation. R. 16. Dr. Weiss did not offer any new opinions or information regarding Claimant. The Court notes that the exact opinion that Dr. Weiss signed was before the ALJ when the ALJ rendered the decision, but, at that time, had only been signed by Lana Meyer, ARNP. R. 16, 545. The ALJ considered the opinion signed by Ms. Meyer and stated, in part, as follows:
R. 33 (emphasis added).
Claimant argues that there is a reasonable possibility that Dr. Weiss' opinion will change the outcome of the decision because the ALJ gave little weight to Ms. Meyer's opinion "because she was not an acceptable medical source and did not examine Plaintiff more than once." Doc. 23 at 29. But Claimant ignores the other reason provided by the ALJ for giving little weight to Ms. Meyer's opinion — that Ms. Meyer's opinion merely concurs with Dr. Hynes' limitations and that Ms. Meyer's opinion is entitled to little weight for the same reasons discussed with respect to the opinion of Dr. Hynes. The fact that Dr. Weiss has now signed an identical statement to the one that was previously before the ALJ does not affect this reasoning. Indeed, Dr. Weiss' opinion merely concurs with Dr. Hynes' limitations and does not offer any new opinions or information regarding Claimant. Thus, there is no reason to believe that Dr. Weiss' opinion would change the administrative outcome when the ALJ has already found that an identical opinion is entitled to little weight for the same reasons the ALJ discussed with respect to the opinion of Dr. Hynes. And the Court reiterates that the ALJ provided a specific reason supported by substantial evidence for discounting the opinion of Dr. Hynes. See, e.g., D'Andrea, 389 F. App'x at 948 (rejecting argument that ALJ failed to accord proper weight to treating physician's opinion "because the ALJ articulated at least one specific reason for disregarding the opinion and the record supports it."). Given the foregoing, the Court finds that there is not a reasonable possibility that Dr. Weiss' opinion would change the administrative outcome.
Accordingly, the Court rejects Claimant's second assignment of error.
For the reasons stated above, it is
