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Gagliardi v. Soc. Sec. Admin.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
Feb 28, 2020
441 F. Supp. 3d 1284 (S.D. Fla. 2020)

Summary

finding that the plaintiff waived her Appointments Clause challenge made for the first time in her motion for summary judgment

Summary of this case from Bellamy v. Comm'r of Soc. Sec.

Opinion

Case No. 18-cv-62106-BLOOM/Valle

02-28-2020

Pia GAGLIARDI, Plaintiff, v. SOCIAL SECURITY ADMINISTRATION, Defendant.


ORDER

THIS CAUSE is before the Court upon Defendant's Motion for Summary Judgment, ECF No. [23] ("Defendant's Motion"), and Plaintiff's Motion to Declare Social Security Administration Administrative Law Judges Unconstitutional as Violating the Appointments Clause & Remand for a New Administrative Hearing, ECF No. [30] ("Plaintiff's Motion") (collectively, the "Motions"). The Motions were previously referred to the Honorable Alicia O. Valle, United States Magistrate Judge, for Report and Recommendation, ECF No. [5]. On January 17, 2020, Judge Valle issued a Report and Recommendation, ECF No. [35] ("R&R"), recommending that (i) Defendant's Motion be granted, (ii) Plaintiff's Motion be denied, and (iii) the Administrative Law Judge's Decision ("ALJ's Decision") be affirmed. See ECF No. [35]. The R&R advised the parties that objections to the R&R must be filed within fourteen (14) days. Id. at 29. On January 31, 2020, Plaintiff filed her Objection to Report and Recommendation to District Judge, ECF No. [36] ("Plaintiff's Objections"). Defendant did not file any objections, but it responded in opposition to Plaintiff's Objections on February 14, 2020. See ECF No. [37] ("Defendant's Response").

The Court has carefully considered the R&R, Plaintiff's Objections, Defendant's Response, the record in this case, the applicable law, and is otherwise fully advised. Moreover, the Court has conducted a de novo review of the R&R in light of Plaintiff's Objections. 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."). For the reasons set forth below, the Court finds Judge Valle's R&R to be well-reasoned and the analysis to be correct.

I. BACKGROUND

The Court adopts Judge Valle's description of the administrative history and record below, ECF No. [35] at 2, 5-8, and incorporates it by reference herein.

In the R&R, Judge Valle determined that Plaintiff's Appointments Clause challenge was untimely, id. at 9-13, the ALJ properly evaluated Plaintiff's testimony, id. at 13-18, the ALJ properly weighed the medical opinions of Drs. Barnett, Issa, Mihm, Laboy, and Mungul, id. at 18-27, and the ALJ properly relied on the Vocational Expert's testimony, id. at 27-28. Plaintiff objects to each of these conclusions, but the bulk of Plaintiff's Objections is directed to the Appointments Clause issue. Specifically, Plaintiff maintains that she did not forfeit her Appointments Clause challenge by failing to raise it during the administrative proceedings. She claims that there is no issue exhaustion requirement in the social security context, there is no judicially created exhaustion requirement for the Social Security Administration's ("SSA") Appeals Council, SSA claimants can bypass administrative review and be heard by a district court, and due process and equitable considerations favor allowing the Appointments Clause challenge to proceed, such as the futility exception and the importance of safeguarding constitutional provisions. ECF No. [36] at 3-16. Regarding the other objections, Plaintiff contends that the ALJ improperly discredited Plaintiff's treating physicians' opinions while improperly affording excess weight to Defendant's physicians, the ALJ improperly discredited Plaintiff's testimony, and the SSA did not meet its burden to show Plaintiff can sustain employment. See id. at 16-21.

Defendant's Response, in turn, asserts that the R&R correctly determined that Plaintiff waived her Appointments Clause claim, correctly found the ALJ had properly weighed the medical opinions, and correctly found the ALJ had properly discounted Plaintiff's subjective complaints. ECF No. [37].

II. LEGAL STANDARD

Plaintiff does not object to Judge Valle'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. See ECF No. [35] at 2-3. 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 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 properly states the legal and regulatory standards an ALJ must employ in making a determination as to eligibility for supplemental security income benefits. See ECF No. [35] at 3-5. Through this lens, the Court addresses Plaintiff's Objections.

Here, the September 26, 2017 administrative law judge ("ALJ") determination became the Commissioner's "final decision" when the Appeals Council denied Plaintiff's request for review. See ECF No. [35] at 2; see also 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.").

III. DISCUSSION

A. Plaintiff waived her Appointments Clause challenge

The gist of Plaintiff's Appointments Clause argument is that the ALJ was unconstitutionally appointed, and the Court therefore must remand her case to be heard by a different and constitutionally appointed ALJ. In support of this argument, Plaintiff relies heavily on Lucia v. S.E.C. , ––– U.S. ––––, 138 S. Ct. 2044, 201 L.Ed.2d 464 (2018), Sims v. Apfel , 530 U.S. 103, 120 S.Ct. 2080, 147 L.Ed.2d 80 (2000), and Cirko on behalf of Cirko v. Comm'r of Soc. Sec. , 948 F.3d 148 (3d Cir. 2020) for the proposition that there is no issue exhaustion requirement in the social security context.

The R&R expressly noted that Judge Valle "reviewed the facts of this case and the plethora of post-Lucia cases on this issue" but concluded that Plaintiff's Appointments Clause challenge was untimely because it was not raised during the administrative proceedings. See id. at 9-13.

The Eleventh Circuit has not yet addressed the issue of whether the failure to raise the Appointments Clause challenge in the SSA administrative proceedings forfeits the claim. However, the Eleventh Circuit, relying upon Lucia , has recently declined to excuse a petitioner's forfeiture of its Appointments Clause argument in which it did not timely challenge the validity of the ALJ's appointment. See Pharmacy Doctors Enters., Inc. v. Drug Enforcement Admin. , 789 F. App'x 724, 727-29 (11th Cir. 2019) (concluding that petitioner "has forfeited its Appointments Clause challenge" because "arguments based on the Appointments Clause are nonjurisdictional and therefore subject to the ordinary rules of forfeiture") (citing Freytag v. C.I.R. , 501 U.S. 868, 893-94, 111 S.Ct. 2631, 115 L.Ed.2d 764 (1991) (Scalia, J., concurring in part and concurring in judgment)).

Moreover, federal courts within Florida routinely have interpreted Lucia to mean that, in the context of social security proceedings, an Appointments Clause challenge must be raised before the ALJ's decision becomes final at the administrative level. See, e.g. , Perez v. Berryhill , No. 18-20760-CV, 2019 WL 1405642, at *4-5 (S.D. Fla. Mar. 28, 2019) (rejecting as untimely claimant's Appointments Clause argument where claimant did not raise the issue either during the proceedings before the ALJ or to the Appeals Council) (relying on Lucia , 138 S. Ct. at 2055 and Ryder v. United States , 515 U.S. 177, 182-83, 115 S.Ct. 2031, 132 L.Ed.2d 136 (1995) ); Parker v. Berryhill , No. 18-14349-CIV, 2019 WL 3097511, at *10-11 (S.D. Fla. July 15, 2019) (rejecting same argument, explaining that "[a]lthough the Eleventh Circuit has yet to decide this issue, the courts within this circuit have held that an Appointments Clause challenge, in the context of social security disability proceedings, is nonjurisdictional and must be raised at the administrative level," and noting that Sims "does not stand for Plaintiff's argument that an SSA claimant may raise issues for the first time in federal court"); Lopez v. Berryhill , No. 18-20626-CV, 2019 WL 1429632, at *5-7 (S.D. Fla. Mar. 29, 2019) (explaining that if plaintiff "truly wished to raise an Appointments Clause challenge, Lucia and Ryder require[d] her to have done so either during the proceedings before [the] ALJ ... or to the Appeals' Council after the ALJ issued his decision"). See also Jones v. Berryhill , No. 4:18CV503-CAS, 2019 WL 2583157, at *7-8 (N.D. Fla. June 21, 2019) (finding that claimant forfeited her Appointments Clause challenge by failing to raise it at any point during the administrative process, and commenting that "post- Sims cases have found that although Sims held that a Plaintiff need not exhaust an issue before the Appeals Council, the Court ‘specifically left open the question of whether an issue is waived if it is not raised in the administrative hearing’ "); Valle-Roman v. Comm'r of Soc. Sec. , No. 6:18-CV-1158-ORL-TBS, 2019 WL 1281171, at *2 (M.D. Fla. Mar. 20, 2019) (holding that plaintiff's failure to raise Appointments Clause issue at the administrative level is "fatal" to her claim because "[a]ny challenge to the constitutional validity of the ALJ's appointment that was not first raised at the administrative level is rejected as untimely"). "These cases agree with the ‘vast majority of courts that have considered this issue’ and have concluded the Appointments Clause issue is forfeited if not raised in the administrative proceedings." Jones , 2019 WL 2583157, at *7 (collecting cases). Indeed, as noted in Defendant's Response, since Lucia , the vast majority of district courts have rejected Appointments Clause challenges to SSA ALJs where the plaintiff did not raise the issue during the administrative proceedings. See ECF No. [37] at 3 (collecting cases). The Court finds these cases persuasive.

The Court has also considered Cirko , 948 F.3d 148, in which the Third Circuit Court of Appeals held that claimants do not need to present an Appointments Clause claim during SSA administrative proceedings but instead may raise that claim for the first time in the district court. The Court reasoned that the characteristics of SSA review process and rights protected by the Appointments Clause favor resolution of such claims on the merits. Id. That decision, however, is not binding precedent in this jurisdiction nor is it overridingly persuasive. In fact, the only two courts within the Eleventh Circuit that have cited it did not follow it when concluding that claimants waived or forfeited their Appointments Clause challenge by failing to raise it during the administrative proceedings. See Olson v. Comm'r of Soc. Sec. , No. 2:19-CV-273-FTM-MAP, 2020 WL 831579, at *6 (M.D. Fla. Feb. 20, 2020) ; Zayas o/b/o J.X.A. v. Comm'r of Soc. Sec. , No. 8:18-CV-2918-T-MAP, 2020 WL 487153, at *6 (M.D. Fla. Jan. 30, 2020).

The Court acknowledges that two decisions from other courts in this district are currently pending appeal before the Eleventh Circuit. See Perez v. Comm'r of Soc. Sec. , No. 19-11660 (appeal filed Apr. 29, 2019) and Lopez v. Acting Comm'r of the Soc. Sec. Admin. , No. 19-11747 (appeal filed May 3, 2019).

As part of its decision, the Third Circuit panel noted that requiring exhaustion "would impose an unprecedented burden on SSA claimants" and would force claimants "despite the informal, non-adversarial nature of the review process—to root out a constitutional claim even beyond the power of the agency to remedy, or alternatively risk forfeiture," Cirko , 948 F.3d at 156-57, and that the government's interest in requiring exhaustion is "negligible at best" because an ALJ cannot cure the constitutionality of their own appointments. Id. at 157-58. However, while the individual ALJ may not be able to grant relief, the SSA could engage in corrective measures, such as by assigning the case to a new ALJ or vacating the ALJ's decision. See SSR 19-1p, 84 Fed. Reg. 9582-02, 9583 (Mar. 15, 2019). Moreover, the government's interest in having Appointments Clause challenges brought in a timely fashion is not negligible. The SSA "receive[s] millions of applications for benefits each year," and the SSA "must make decisions efficiently in order to ensure that the system continues to work and serve the American people" especially as the SSA "employ[s] more ALJs than all other Federal agencies combined," issues "hundreds of thousands of decisions each year," and Lucia "has the potential to significantly affect" the SSA's hearings and appeals process. See id. Accordingly, the Court declines to follow Cirko .

The Court, similarly, finds Plaintiff's additional arguments concerning the Appointments Clause to be unconvincing. In particular, Plaintiff argues that equitable considerations excuse her failure to raise the Appointments Clause issues. For instance, she asserts that it would have been futile to raise the claim directly to the ALJ or to the SSA during the administrative process. But, notably, 20 C.F.R. § 404.940 "requires that any request to disqualify the ALJ must be made to the ALJ at the ‘earliest opportunity’ and, if not resolved, then the objection concerning the ALJ is to be presented to the Appeals Council." Jones , 2019 WL 2583157, at *8 n.10. It is undisputed that Plaintiff did not challenge the ALJ's ability to hear her case in any of the administrative proceedings below. Had Plaintiff timely raised her Appointments Clause challenge in the administrative proceedings, the Appeals Council could have vacated the ALJ's Decision and remanded the case for further proceedings before a different ALJ. See 20 C.F.R. §§ 404.967, 404.977, 416.1467, and 416.1477.

Plaintiff further contends that she had insufficient notice that waiver of her Appointments Clause challenge would occur if not timely made. However, this does not comport with the state of extant law prior to the administrative hearing in May 2017. Indeed, prior to Lucia , Appointments Clause challenges were required to be made in a timely fashion, meaning during the administrative proceedings. See, e.g. , Ryder , 515 U.S. at 182-83, 115 S.Ct. 2031 ("We think that one who makes a timely challenge to the constitutional validity of the appointment of an officer who adjudicates his case is entitled to a decision on the merits of the question and whatever relief may be appropriate if a violation indeed occurred. Any other rule would create a disincentive to raise Appointments Clause challenges with respect to questionable judicial appointments."); United States v. L.A. Tucker Truck Lines, Inc. , 344 U.S. 33, 37, 73 S.Ct. 67, 97 L.Ed. 54 (1952) (recognizing that "orderly procedure and good administration require that objections to the proceedings of an administrative agency be made while it has opportunity for correction in order to raise issues reviewable by the courts"). See also United States v. Suescun , 237 F.3d 1284, 1287-88 (11th Cir. 2001) (criminal defendant forfeited Appointments clause challenge to appointment of interim United States Attorney by failing to raise it in a timely fashion); Pharmacy Doctors Enters., Inc. , 789 F. App'x at 729 (finding that petitioner's "argument that its Appointments Clause challenge was unavailable before the Supreme Court decided Lucia is without merit" and noting that the "availability of an argument does not depend on whether a court has already issued a decision addressing that exact argument").

Finally, the Court declines Plaintiff's invitation to conduct a discretionary review of the Appointments Clause challenge. Although the Court agrees with Plaintiff's contention that the Appointments Clause "demands the utmost respect," that respect does not require the Court to undertake a discretionary review in the absence of "rare" and "exceptional" circumstances. See United States v. Godoy , 821 F.2d 1498, 1504 (11th Cir. 1987) ("The general rule, of course, is that an appellate court will not consider a legal issue unless it was presented to the trial court. This rule, however, is not jurisdictional and may be waived by this court in certain exceptional circumstances. Thus, on rare occasions, we may exercise our jurisdiction when the proper resolution of a legal issue is ‘beyond any doubt.’ ") (internal citations omitted); Freytag , 501 U.S. at 879, 111 S.Ct. 2631 (1991) (concluding that the case before the court was "one of those rare cases" where the court should exercise its discretion to hear a challenge to the constitutional authority of the trial judge that was not raised below).

In Godoy , the Eleventh Circuit found that a Speedy Trial Act violation had occurred and that the case presented "a rare situation" for discretionary review of issues not raised in the lower court. Specifically, the court explained that "even though the computation issue ha[d] not been raised by either party," "the issues in [the] case relate solely to the Speedy Trial Act and, especially, its computations" such that the court was "not overreaching" in addressing "errors of law made by the district court in determining the legal framework from which the applicable indictment period is computed, when the parties have focused their attention throughout on the proper number of days that can be excluded from that period." 821 F.2d at 1504. In Freytag , the court exercised its discretion to review an Appointments Clause challenge that had not been raised before the Tax Court because the issues raised "important questions" "about the Constitution's structural separation of powers." See 501 U.S. at 872, 111 S.Ct. 2631. In that case, the court was tasked with deciding whether the authority that Congress has granted the Chief Judge of the United States Tax Court to appoint special trial judges transgressed the structure of separation of powers. Id. at 871, 111 S.Ct. 2631. The Court explained that it faced a constitutional challenge that was "neither frivolous nor disingenuous" and which went directly "to the validity of the Tax Court proceedings," and effectively the scope of cases that special trial judges could preside over, such that it was a "rare case[ ]" for which the court should exercise discretion to hear issues not previously raised below. See id. at 873-74, 877-79, 111 S.Ct. 2631.

The present case is not such a "rare" or "exceptional" circumstance that warrants discretionary review of issues not raised during the administrative proceeding. "Appointments Clause claims, and other structural constitutional claims, have no special entitlement to review. A party forfeits the right to advance on appeal a nonjurisdictional claim, structural or otherwise, that he fails to raise at trial." See id. at 893-84, 111 S.Ct. 2631 (Scalia, J., concurring in part and concurring in judgment). "No procedural principle is more familiar to this Court than that a constitutional right may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it." Id. at 894, 111 S.Ct. 2631 (citation omitted). "Forfeiture is ‘not a mere technicality and is essential to the orderly administration of justice.’ ... [A] trial on the merits, whether in a civil or criminal case, is the ‘main event,’ and not simply a ‘tryout on the road’ to appellate review. The very word ‘review’ presupposes that a litigant's arguments have been raised and considered in the tribunal of first instance." Id. at 895, 111 S.Ct. 2631 (internal citations and footnote omitted).

As other courts have found, the failure to raise the Appointments Clause issue in a timely fashion is not such a "rare" circumstance that warrants discretionary review. See, e.g. , Muhammad v. Berryhill , 381 F. Supp. 3d 462, 469 (E.D. Pa. 2019) (noting that "[s]ince Freytag , the Supreme Court has not clarified the types of ‘rare cases’ that are excused from the failure to raise a claim before an agency, though the [Supreme] Court long before Lucia imposed a timeliness requirement for Appointments Clause challenges," and finding that although claimant's case was not "frivolous nor disingenuous," there was nothing "rare" about his case that would excuse his failure to raise the Appointments Clause challenge at the administrative level); Unbehagen v. Saul , No. 1:18CV704, 2019 WL 4415149, at *9 (M.D.N.C. Sept. 16, 2019) (finding claimant's argument did not present a "rare case" for discretionary review, and concluding that "[g]iven the Supreme Court's reaffirmation of an exhaustion requirement for Appointments Clause challenges in its post- Freytag decisions in Ryder and Lucia , the Court should not read Freytag as adopting a rule that all Appointments Clause challenges qualify as ‘rare cases’ that justify the excusal of forfeiture") (emphasis in original);

"[R]egularly excusing forfeiture of Appointments Clause challenges under Freytag risks eroding the rule in Ryder ... that an Appointments Clause challenge must be ‘timely’ to afford the challenger relief." Muhammad , 381 F. Supp. 3d at 469 (citation omitted). Moreover, "[a]pplying Freytag 's rare case exception here would disincentivize petitioners ... from raising Appointments Clause challenges at the administrative level." Id. Indeed, "regularly permitting unsuccessful claimants to raise such challenges for the first time on judicial review would ‘encourage the practice of ‘sandbagging’: suggesting or permitting, for strategic reasons, that the [adjudicative entity] pursue a certain course, and later—if the outcome is unfavorable—claiming that the course followed was reversible error.’ " Id. at 469-70.

Accordingly, the Court finds Plaintiff's Objections as they relate to the Appointments Clause challenge to be unavailing. Plaintiff's Motion is therefore denied and Judge Valle's recommendation in the R&R on this point is accepted in whole. The Court will now turn to Plaintiff's remaining arguments on appeal.

B. Plaintiff's objections to the ALJ's Decision are unconvincing

In addition to the Appointments Clause challenge, Plaintiff argues that the Court should remand because the ALJ's Decision to deny Plaintiff benefits was improper. In particular, Plaintiff maintains that the R&R's conclusions should not be accepted because they "failed to establish that the ALJ made a sufficient articulation of good cause for discounting Plaintiff's treating physicians' opinions, failed to justify the discounting of Plaintiff's own testimony, and failed to establish that the SSA met its burden to prove Plaintiff is capable of maintain[ing] work." ECF No. [36] at 16.

In the R&R, Judge Valle considered at length Plaintiff's arguments. Judge Valle concluded that the ALJ applied the correct legal standard and that the ALJ's Decision is supported by substantial evidence. Upon review, the Court agrees with Judge Valle's conclusions in the R&R. i. The ALJ properly weighed the medical opinions

Plaintiff contends that the ALJ improperly discredited Plaintiff's treating physicians' opinions while improperly affording excess weight to Defendant's physicians' opinions. ECF No. [36] at 16-19. In particular, Plaintiff complains that her treating physicians were better situated to diagnose her limitations, but the ALJ discredited their opinions in favor of Defendant's non-treating and non-examining physicians. See id. at 19. Upon review, the Court does not agree that the ALJ improperly assessed the opinions of Drs. Barnett, Issa, Mihm, Laboy, or Mungul.

Although Plaintiff maintains that the ALJ improperly gave Dr. Barnett's opinion "little weight," id. at 19, the R&R acknowledged that the ALJ discounted Dr. Barnett's disabling opinion for several reasons all of which were supported by substantial evidence. First, the ALJ found Dr. Barnett's opinion was internally inconsistent with his own treatment notes, and the R&R cited several examples of this. See ECF No. [35] at 20. See Crawford , 363 F.3d at 1159 (finding that ALJ's decision to discount treating physician's opinion was supported by substantial evidence where opinion was inconsistent with physician's own treatment notes); Edwards v. Sullivan , 937 F.2d 580, 583-84 (11th Cir. 1991) (finding good cause existed to discount treating physician's opinion where the opinion was contradicted by other notations in the physician's own record). Second, the ALJ found Dr. Barnett's conclusion regarding Plaintiff's limitations to be inconsistent with Dr. Issa's treatment records, and the R&R cited specific examples in support. See ECF No. [35] at 21. Finally, the ALJ discounted Dr. Barnett's opinion because it was largely based on Plaintiff's subjective complaints and self-reports, which findings lacked objective evidence, and the R&R provided an example. See id. See also Edwards , 937 F.2d at 583 (noting that a treating physician's report may be discounted when it is not accompanied by objective medical evidence); Hughes v. Comm'r of Soc. Sec. Admin. , 486 F. App'x 11, 13-14 (11th Cir. 2012) (treating physician's opinion properly discounted by ALJ where opinions did not cite to specific objective medical evidence or test results nor referenced any specific information regarding the results of physical or mental evaluations); Pettaway v. Astrue , 376 F. App'x 889, 891 (11th Cir. 2010) (finding that ALJ had good cause to discount treating physician's opinion where the opinion "went against the balance of objective medical evidence and was based mainly on [claimant's] subjective complaints").

Moreover, although the ALJ discounted Dr. Issa's opinion and gave it "little weight," the R&R determined that the ALJ's Decision in this respect was based on good cause supported by substantial evidence. See ECF No. [35] at 24. In particular, the ALJ found Dr. Issa's opinion to be internally inconsistent with his own progress notes and lacking in objective evidence, and the R&R cited examples. See id. at 23. Further, the ALJ found Dr. Issa's Physical Capacities Evaluation ("PCE") inconsistent with other medical evidence of record, and the R&R cited specific examples. See id. at 23-24. The Court, upon review, finds that the ALJ applied the proper legal standards, articulated good cause for discounting Dr. Issa's opinion and PCE, and the ALJ's Decision is supported by substantial evidence.

Additionally, although the ALJ gave Plaintiff's non-treating State Agency physicians' opinions more weight, the R&R determined the ALJ's findings were consistent with the record and supported by substantial evidence. See id. at 25-27. The Court agrees. State Agency medical consultants are considered experts in Social Security disability programs and their opinions may be entitled to controlling weight if supported by evidence in the record. See 20 C.F.R. § 416.927(c)(4) (the more consistent a medical opinion is with the record as a whole, the more weight the ALJ may assign to that opinion); see also id. at § 416.927(e) ; SSR 96-6P (S.S.A. July 2, 1996), 1996 WL 374180, at *3 (noting that opinions from State Agency consultants may be entitled to greater weight than the opinions of treating or examining sources in appropriate circumstances); SSR 17-2P (S.S.A. Mar. 27, 2017), 2017 WL 3928306, at *3 (noting that State Agency medical or psychological consultants are "highly qualified medial sources who are also experts in the evaluation of medical issues in disability claims"); Jarrett v. Comm'r of Soc. Sec. , 422 F. App'x 869, 874 (11th Cir. 2011) (concluding that ALJ did not err in giving treating physician's opinion little weight and instead giving significant weight to the opinions of the State Agency consultants). The record contains sufficient evidence that the ALJ did not err in weighing the medical opinions and according the State Agency physicians' opinions more weight than the opinions of Drs. Barnett and Issa.

Plaintiff asserts that Schink v. Comm'r of Soc. Sec. , 935 F.3d 1245 (11th Cir. 2019) compels the conclusion that the ALJ's Decision was erroneous. The Court does not agree. In Schink , the Eleventh Circuit found that the ALJ erred by failing to articulate good cause for discounting two treating physicians' opinions, failed to consider the claimant's mental impairments when assessing his residual functional capacity, and that substantial evidence did not support the finding that the claimant's bipolar disorder was not a severe impairment. See id. at 1252. Importantly, unlike the instant case, the ALJ's decision in Schink was improper because none of the ALJ's reasons for discounting the treating physicians' opinions were valid or supported by substantial evidence. See id. at 1260-64. For instance, the Court found that the ALJ wrongfully rejected the treating physician opinions because of the format of the questionnaires they completed. Id. at 1261-62. Further, the Court found that the ALJ did not clearly articulate the basis for his conclusion that the opinions were inconsistent with other substantial evidence of record, and the record in any event did not indicate inconsistencies. Id. at 1263-64.

None of these features are present here. The ALJ's Decision reflects that "little weight" was assigned to Dr. Barnett's opinion because his treatment history "strongly suggest[ed]" that he did not have a longitudinal understanding of Plaintiff's impairments and thus did not appear long enough to gather objective data to support his opinion regarding restrictive limitations, he had examined Plaintiff on only nine occasions over a nearly three year period, and his opinions were inconsistent or "incongruous" with other substantial evidence of record, and numerous specific inconsistencies were cited. See ECF No. [18] at 23. The ALJ did not err in evaluating these components when assessing the record. An ALJ must consider various factors when weighing a medical opinion, such as the length and nature of the treatment relationship, frequency of examination, and the consistency of the opinion to the record as a whole. See 20 C.F.R. §§ 404.1527(c) ; 416.927(c).

Moreover, even if one of the ALJ's bases for discounting Dr. Barnett's opinion was improper, remand is inappropriate because the ALJ's Decision otherwise provided good cause for discounting his opinion and is supported by substantial evidence. See, e.g. , Wilson v. Comm'r of Soc. Sec. , 500 F. App'x 857, 859-60 (11th Cir. 2012) (affirming ALJ's decision where the ALJ cited an improper reason in support of the adverse credibility determination because sufficient evidence in the record supported other independent reasons for the ALJ's adverse determination); Diorio v. Heckler , 721 F.2d 726, 728 (11th Cir. 1983) (determining that the ALJ made erroneous statement of fact, but holding that the error was harmless in the context of the case); D'Andrea v. Comm'r of Soc. Sec. Admin. , 389 F. App'x 944, 948 (11th Cir. 2010) (rejecting claimant's argument that the ALJ failed to accord appropriate weight to the treating physician's opinion because the ALJ articulated "at least one specific reason for disregarding the opinion and the record supports it"); see also Gilmore v. Astrue , No. 309CV14/RV/EMT, 2010 WL 989635, at *18 (N.D. Fla. Feb. 18, 2010), report and recommendation adopted , No. 309CV14/RV/EMT, 2010 WL 989636 (N.D. Fla. Mar. 15, 2010) (finding that the ALJ's decision to discount treating physician's opinion was supported by the record even though two of the ALJ's reasons provided for discounting the opinion were not substantially supported by the record). Accordingly, the Court finds that the ALJ did not err in assessing and weighing the medical opinions.

ii. The ALJ properly evaluated Plaintiff's testimony

Plaintiff contends that the ALJ improperly discredited Plaintiff's testimony. ECF No. [36] at 20-21. In support, Plaintiff maintains that the ALJ misrepresented the record regarding Plaintiff's activities of daily living (for instance, cooking, driving, and going to the supermarket). However, as the R&R reflects, the ALJ provided several reasons supported by substantial evidence for discounting Plaintiff's subjective complaints, such as the complaints being inconsistent with Plaintiff's daily living. See ECF No. [35] at 14-15. See also 20 C.F.R. § 416.929(c)(3) (Commissioner will consider claimant's daily activities when assessing claimant's symptoms); May v. Comm'r of Soc. Sec. Admin. , 226 F. App'x 955, 958 (11th Cir. 2007) (ALJ did not err in discounting claimant's subjective complaints of disabling pain where they were inconsistent with claimant's ability to drive, dine out, and shop); Dyer , 395 F.3d at 1212 (ALJ adequately explained his reasons for rejecting claimant's subjective complaints of disabling pain as inconsistent with record evidence regarding claimant's daily activities).

Additionally, the ALJ discounted Plaintiff's subjective complaints for being inconsistent with Plaintiff's treatment records. See ECF No. [35] at 15. See also 20 C.F.R. § 416.929(c)(4) (Commissioner will consider whether there are any inconsistencies in the evidence and the extent to which there are conflicts between claimant's statements and the rest of the evidence); Lowery v. Soc. Sec. Admin., Comm'r , 729 F. App'x 801, 804 (11th Cir. 2018) (noting that ALJ was entitled to discount claimant's testimony about the severity and limiting effects of his symptoms where inconsistent with the other evidence of record). Further, the ALJ found Plaintiff's treatment was essentially conservative and/or routine in nature, which type of treatment militated against Plaintiff's allegations that her symptoms were of an intensity, persistence, and limiting effect to be disabling. See ECF No. [35] at 15-16. See also 20 C.F.R. § 416.929(c)(3) (Commissioner shall consider the type and effectiveness of medication the claimant takes to alleviate symptoms including the type, dosage, effectiveness, and side effects of medication and other treatment for relief); Wolfe v. Chater , 86 F.3d 1072, 1078 (11th Cir. 1996) (finding that ALJ did not err in discounting claimant's subjective complaints of pain where evidence showed that claimant's treatment was conservative in nature). Moreover, the ALJ found that Plaintiff was not compliant with her prescribed treatment regimen. See ECF No. [35] at 16. See 20 C.F.R. § 416.929(c)(3) (Commissioner will consider any measures the claimant uses or has used to relieve the pain or symptoms); 20 C.F.R. § 416.930(b) (the failure to follow the prescribed treatment without good reasons will preclude a finding of disability); Ellison v. Barnhart , 355 F.3d 1272, 1275 (11th Cir. 2003) (noting that a claimant's non-compliance with prescribed medical treatment is an acceptable factor for an ALJ to consider) (citing Dawkins v. Bowen , 848 F.2d 1211, 1213 (11th Cir. 1988) ); Brown v. Astrue , 298 F. App'x 851, 853 (11th Cir. 2008) (noting that the ALJ "could consider [claimant's] failure to comply with a treatment regimen as a factor in assessing [claimant's] credibility").

Accordingly, upon review and consideration, the Court finds that the ALJ applied the proper legal standards in considering Plaintiff's allegations about her impairments, assessing Plaintiff's testimony in the context of all the evidence, and articulating legitimate reasons for discounting her testimony. The ALJ's Decision on this point, therefore, was not improper.

iii. The SSA met its burden to show Plaintiff can sustain employment

Plaintiff appears to argue that Defendant failed to carry its burden at Step 5 in the sequential evaluation process. See ECF No. [36] at 21. Specifically, in referencing her argument in her response to Defendant's Motion that the ALJ improperly relied upon the Vocational Expert's conclusions, ECF No. [33] at 15-17, Plaintiff contends that Defendant did not prove Plaintiff is capable of engaging in another kind of substantial gainful employment that exists in the national economy considering her age, education, and work experience. Id. at 21. See also ECF No. [35] at 3-5 (setting forth the five-step process and the considerations at each step). The Court does not find Plaintiff's argument on this point to have merit. As set forth in the R&R, the ALJ thoroughly reviewed medical evidence of Plaintiff's mental and physical impairments and included all of the resulting limitations in the hypothetical given to the Vocational Expert. See id. at 28. With those limitations and Plaintiff's background, the Vocational Expert explained that Plaintiff could work as an electronics worker, small products assembler, or mail sorter. Id. at 27-28. Upon review, the Court finds that the ALJ's Decision that Plaintiff could successfully adjust to other work that exists in significant numbers in the national economy was not erroneous. See id. at 28.

IV. CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED as follows:

1. Magistrate Judge Valle's Report and Recommendation, ECF No. [35] is ADOPTED ;

2. Defendant's Motion for Summary Judgment, ECF No. [23] , is GRANTED ;

3. Plaintiff's Motion to Declare Social Security Administration Administrative Law Judges Unconstitutional as Violating the Appointments Clause and Remand for a New Administrative Hearing, ECF No. [30] , is DENIED ;

4. Plaintiff's Objections, ECF No. [36] , are OVERRULED ;

5. The ALJ's Decision is AFFIRMED ;

6. To the extent not otherwise disposed of, any scheduled hearings are CANCELED , all pending motions are DENIED as moot, and all deadlines are TERMINATED ;

7. The Clerk is directed to CLOSE this case.

DONE AND ORDERED in Miami, Florida, this 28th day of February, 2020.

REPORT AND RECOMMENDATION TO DISTRICT JUDGE

ALICIA O. VALLE UNITED STATES MAGISTRATE JUDGE

THIS MATTER is before the Court upon Defendant's Motion for Summary Judgment (ECF No. 23) and Plaintiff's Motion to Declare Social Security Administration Administrative Law Judges Unconstitutional as Violating the Appointments Clause and Remand for New Administrative Hearing. (ECF No. 30) (together, the "Motions"). United States District Judge Beth Bloom has referred the Motions to the undersigned for a Report and Recommendation. (ECF No. 5); see also 28 U.S.C. § 636(c).

After due consideration of the record and the parties' briefs, including the parties' respective Responses to the Motions (ECF Nos. 31 and 33), Plaintiff's Reply (ECF No. 32), and Plaintiff's Notice of Supplemental Authority (ECF No. 34), and being otherwise fully advised on the matter, the undersigned respectfully recommends that: (i) Defendant's Motion for Summary Judgment (ECF No. 23) be GRANTED ; (ii) Plaintiff's Motion to Declare Social Security Administration Administrative Law Judges Unconstitutional as Violating the Appointments Clause and Remand for New Administrative Hearing (ECF No. 30) be DENIED ; and (iii) the Administrative Law Judge's Decision ("ALJ's Decision") be AFFIRMED for the reasons set forth below.

I. PROCEDURAL HISTORY

On January 13, 2015, Plaintiff Pia Gagliardi ("Plaintiff" or "Claimant") applied for supplemental security income under the Social Security Act (the "Act"), 42 U.S.C. § 401 et seq. , alleging a disability onset date of January 1, 2008. (R. 189-90). Her claims were denied initially and again upon reconsideration. (R. 127, 133). Thereafter, Claimant requested a hearing, which was held before ALJ Valencia Jarvis on May 5, 2017. (R. 139-41, 156-68). Claimant, appearing with counsel, testified at the hearing. (R. 55-86). A Vocational Expert also testified. (R. 86-89). On September 26, 2017, the ALJ issued a decision denying Claimant's applications and finding that Claimant was not disabled within the meaning of the Act. (R. 10-30).

All references are to the record of the administrative proceeding filed as part of Defendant's Answer. See (ECF Nos. 17 and 18).

Thereafter, the Appeals Council denied Plaintiff's request for review, rendering the ALJ's Decision the Commissioner's "final decision." (R. 1-5); see Chester v. Bowen , 792 F.2d 129, 131 (11th Cir. 1986). Plaintiff now seeks judicial review of the ALJ's Decision. (ECF No. 1); see also 42 U.S.C. § 405(g). Both parties have moved for summary judgment, and the Motions are ripe for adjudication.

II. STANDARD OF REVIEW

Judicial review of the ALJ's Decision is limited to whether there is substantial evidence in the record as a whole to support the ALJ's finding and whether the ALJ applied the correct legal standards in making her determination. Carson v. Comm'r of Soc. Sec. , 440 F. App'x 863, 864 (11th Cir. 2011) (citations omitted); see also 42 U.S.C. § 405(g). "Substantial evidence is more than a scintilla and is such relevant evidence as a reasonable person would accept as adequate to support a conclusion." Carson , 440 F. App'x at 864 (quoting Crawford v. Comm'r of Soc. Sec. , 363 F.3d 1155, 1158 (11th Cir. 2004) ); accord Hale v. Bowen , 831 F.2d 1007, 1011 (11th Cir. 1987) (holding that substantial evidence is "more than a scintilla, but less than a preponderance") (quoting Bloodsworth v. Heckler , 703 F.2d 1233, 1239 (11th Cir. 1983) ). A court, however, "may not decide the facts anew, reweigh the evidence, or substitute [its] judgment for that of the [ALJ]." Winschel v. Comm'r of Soc. Sec. , 631 F.3d 1176, 1178 (11th Cir. 2011) (quoting Phillips v. Barnhart , 357 F.3d 1232, 1240 n.8 (11th Cir. 2004) ). Even if evidence preponderates against the ALJ's Decision, a court must affirm "if the decision is supported by substantial evidence." Bloodsworth , 703 F.2d at 1239 (citing 42 U.S.C. § 405(g) ). Within this narrow role, however, courts do not act as automatons. MacGregor v. Bowen , 786 F.2d 1050, 1053 (11th Cir. 1986). Rather, they "must scrutinize the record as a whole to determine if the decision reached is reasonable and supported by substantial evidence." Id. (citing Bloodsworth , 703 F.2d at 1239 ).

To qualify for benefits, a claimant must be disabled within the meaning of the Act. See 42 U.S.C. § 1382 (standard for supplemental security income benefits). A claimant is disabled if she is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 1382c(a)(3)(A). A "physical or mental impairment" is one that "results from anatomical, physiological or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 1382c(a)(3)(D).

To determine eligibility, the ALJ employs a five-step sequential evaluation:

(1) Is the person presently unemployed?

(2) Is the person's impairment severe?

(3) Does the person's impairment meet or equal one of the specific impairments set forth in 20 C.F.R. Part 404, Subpart. P, Appendix 1 (the "Listings")?

(4) Is the person unable to perform his or her former occupation?

(5) Is the person unable to perform any other work within the economy?

20 C.F.R. § 416.920(a)(4) (evaluation process for supplemental security income benefits). An affirmative answer to any of the above questions leads either to the next question or, on Steps 3 and 5, to a finding of disability. McDaniel v. Bowen , 800 F.2d 1026, 1030 (11th Cir. 1986). A negative answer to any question, other than Step 3, leads to a determination of "not disabled." Id.

Importantly, the burden of proof rests on the claimant through Step 4. Phillips , 357 F.3d at 1241 n.10. At Step 4, the ALJ must consider: (i) the claimant's residual functional capacity ("RFC"); and (ii) the claimant's ability to return to her past relevant work. 20 C.F.R. § 416.920(a)(4)(iv). The regulations define RFC as that which an individual is still able to do despite the limitations caused by her impairments. 20 C.F.R. § 416.945(a). The ALJ will "assess and make a finding about [the claimant's RFC] on all the relevant medical and other evidence" in the case. 20 C.F.R. § 416.920(e). The RFC assessment is used to determine whether the claimant can return to her past relevant work under Step 4, and if so, "the ALJ will conclude that the claimant is not disabled." Phillips , 357 F.3d at 1238 (citations omitted). If a claimant cannot return to her past relevant work, then the ALJ proceeds to Step 5. Id.

At Step 5, the ALJ considers the claimant's RFC, age, education, and work experience to determine whether the claimant "can make an adjustment to other work." 20 C.F.R. § 416.920(a)(4)(v) ; Phillips , 357 F.3d at 1239 (citation omitted). The ALJ must determine if there is other work available in significant numbers in the national economy that the claimant has the ability to perform. Phillips , 357 F.3d at 1239. If the claimant can make the adjustment to other work, the ALJ will determine that the claimant is not disabled. Id. Conversely, if the claimant cannot make the adjustment to other work, the ALJ will determine that the claimant is disabled. Id. The ALJ may determine whether the claimant has the ability to adjust to other work in the national economy by either: (1) applying the Medical Vocational Guidelines (contained within 20 C.F.R. part 404, subpart P, appendix 2 ); or (2) using a Vocational Expert, who can opine on whether someone with the claimant's limitations can obtain employment in the national economy. Id. at 1239-40.

III. THE HEARING RECORD

The medical evidence is discussed as relevant to the parties' arguments. See infra Section V.C.

A. Claimant's Background and Hearing Testimony

Plaintiff was 41 years old at the administrative hearing and at the time of the ALJ's Decision. (R. 55). She is a college graduate with a bachelor's degree in psychology and last worked as a substitute teacher approximately 50 times over a four-year period. (R. 56, 57). Plaintiff has also worked as a post office clerk and claims adjuster. (R. 58-59). Plaintiff testified that she has trouble keeping jobs and that all her jobs have lasted under six months because she was "very depressed," had a lot of anxiety, and did not get along with people. (R. 60, 61). According to Plaintiff, she was fired from some jobs and left others due to her depression and anxiety. Id .

Plaintiff testified that, although she does not get along with her family, she has lived with her sister for years. (R. 63, 80-81). Plaintiff does not speak to her father, who was verbally abusive, nor to her brother since she had an argument with him and his wife approximately four years ago. (R. 81-82). Plaintiff and her sister occasionally visit their homebound mother who lives in Delray, Florida. (R. 84).

Regarding activities of daily living, Plaintiff testified that she lets her sister's dog into the backyard and watches TV and animated movies for approximately six hours a day. (R. 83). Plaintiff cannot do much housework. (R. 65). When she tries to wash dishes, her pain worsens and sometimes she throws out her back. (R. 84-85). She walks to the corner when she feels up to it and, approximately once a week, will "throw in a load of laundry" to wash, but her sister takes it out and sorts it. (R. 85-86).

Regarding her mental limitations, Plaintiff testified that she becomes instantly depressed as soon as she wakes up. (R. 66). She noted that she has negative thoughts. (R. 65, 66). According to Plaintiff, she has had suicidal thoughts and, in her early 20s, was Baker Acted for cutting herself. (R. 66). Although she continues to cut herself, she reportedly cuts where people cannot see. (R. 67). Plaintiff also testified that she has panic attacks a couple of times a week. Id .

With regard to her physical condition, Plaintiff testified that she receives treatment for herniations and bulging discs, stenosis, and back and neck pain. (R. 70). Plaintiff takes several medications, including muscle relaxers, pain killers, oxycodone, morphine and Xanax. Id .

B. Vocational Expert's Testimony

The Vocational Expert testified that Claimant's past relevant work included work as claims adjuster (light work with an SVP of 6), post office clerk (light work with an SVP of 4), and teacher (light work with an SVP of 7). (R. 87).

The ALJ questioned the Vocational Expert about a hypothetical individual of Claimant's age, education, and previous work experience who could: lift and carry 20 pounds occasionally and 10 pounds frequently; stand, walk and/or sit for six hours in an eight-hour day; perform unlimited pushing and pulling; frequently climb ramps, stairs, ladders, and scaffolds; perform unlimited balancing, but occasional stoop; and frequently kneel, crouch, and crawl; understand, remember, and carry out short, simple work instructions and occasionally interact with the public and coworkers. (R. 88). According to the Vocational Expert, such an individual could not perform Claimant's past relevant work, which was semiskilled to skilled, and exceeded Claimant's restriction on remembering and carrying out short, simple instructions. Id .

Nevertheless, the Vocational Expert testified that the hypothetical individual could perform other jobs in the national economy. Specifically, the Vocational Expert testified that Claimant could work as an electronics worker, small product assembler, and mail sorter (all light, unskilled jobs with an SVP of 2). Id .

IV. THE ALJ'S DECISION

After reviewing the evidence and conducting the requisite five-step analysis, the ALJ concluded that Claimant "has not been under a disability within the meaning of the Social Security Act since December 30, 2014," the date the application was filed. (R. 10).

The ALJ Decision refers to an application date of December 30, 2014, but the record confirms that the application was filed on January 13, 2015. Compare (R. 10) with (R. 189).

At Step 1, the ALJ determined that Claimant has not engaged in substantial gainful activity since December 30, 2014, the purported application date. (R. 12).

At Step 2, the ALJ found that Claimant had the following severe impairments: obesity ; disc herniation lumbar and cervical spine; depression not otherwise specified; anxiety disorder not otherwise specified; bipolar disorder ; and attention deficit hyperactivity disorder. Id . The ALJ also found that Claimant's bilateral carpal tunnel syndrome, asthma, and high cholesterol were not severe impairments. (R. 13-14).

At Step 3, the ALJ concluded that Claimant did not have an impairment or combination of impairments that meets or medically equal the severity of one of the Listings. (R. 14).

At Step 4, the ALJ determined that Claimant had the residual functional capacity to perform light work as follows: the claimant can lift and/or carry 20 pounds occasionally and 10 pounds frequently; can sit, stand, or walk for 6 hours in an 8-hour workday; can perform unlimited pushing and/or pulling; can frequently climb ramps, stairs, ladders, and scaffolds, without limitation on her ability to balance; can occasionally stoop, and can frequently kneel, crouch, and crawl; is able to understand, remember, and carry out short, simple work instructions and occasionally interact with the public and co-workers. (R. 16).

In reaching this conclusion at Step 4, the ALJ considered Claimant's symptoms and the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence, as well as opinion evidence. Id . Although the ALJ found that Claimant's medically determinable impairments could reasonably be expected to cause the alleged symptoms, the ALJ concluded that Claimant's statements concerning the intensity, persistence, and limiting effects of these symptoms were not entirely consistent with the medical evidence and other evidence in the record. (R. 18). Nevertheless, the ALJ determined that Claimant was unable to perform her past relevant work because it exceeded Claimant's RFC. (R. 28). Accordingly, the ALJ proceeded to Step 5 of the evaluation process. (R. 29).

At Step 5, the ALJ concluded that considering the Claimant's age, education, work experience, and RFC, there are other jobs that exist in significant numbers in the national economy that Claimant can perform despite her limitations. Id . Specifically, the ALJ accepted the Vocational Expert's testimony that Claimant could work as an electronics worker, small product assembler, or mail sorter. Id .

V. DISCUSSION

Plaintiff raises four arguments on appeal. See generally (ECF Nos. 30 and 33). First, in response to Defendant's Motion for Summary Judgment on the merits, Plaintiff argues that the ALJ improperly discounted Plaintiff's testimony about the severity of her symptoms, including Plaintiff's allegations of pain and her mental health condition. See (ECF No. 33 at 6-10). Plaintiff next argues that the ALJ improperly discounted the opinion of Plaintiff's treating physicians (Drs. Mark Barnett and Moises Issa), while giving too much weight to the State Agency consultants (Drs. Candice Mihm, Yamir Laboy, and Lisa Mungul). Id. at 12-15. Plaintiff also asserts that the ALJ erred when relying on the opinion of the Vocational Expert because there was no explanation of how Plaintiff's cumulative limitations restricted her ability to perform the identified jobs. Id. at 15-17.

Lastly, Plaintiff presents a legal challenge to the ALJ's Decision based on the 2018 Supreme Court decision Lucia v. S.E.C. , ––– U.S. ––––, 138 S. Ct. 2044, 201 L.Ed.2d 464 (2018). Plaintiff argues that Lucia requires remand so this case can be tried by an ALJ who has been appointed in a constitutionally compliant manner under the Constitution's Appointments Clause. See generally (ECF No. 30).

A. Claimant's Appointments Clause Challenge is Untimely

Because this is a purely legal and procedural argument, the undersigned will address it first.

Pursuant to the Appointments Clause of the United States Constitution, "Officers of the United States" may be appointed only by the President, "Courts of Law," or "Heads of Departments." U.S. CONST. Art. II., § 2, cl. 2; see also Lucia , 138 S. Ct. at 2050. In Lucia , the Supreme Court addressed an Appointments Clause challenge to an ALJ appointed by the Securities and Exchange Commission (an "SEC ALJ"). Lucia , 138 S. Ct. at 2049-50. The SEC had charged Lucia with misleading investors in connection with the sale of retirement investment products. Id. at 2050. The SEC ALJ ruled that Lucia's products were, in fact, misleading, required him to pay substantial fines, and permanently banned him from working in the investment industry. Id. Lucia appealed the ALJ's decision to the SEC, arguing that the ALJ had not been properly appointed under the Appointments Clause. Id. Lucia then sued in federal court, challenging the penalties imposed by the SEC ALJ, and making the same Appointments Clause argument previously raised before the SEC. Id. The D.C. Circuit Court of Appeals denied the challenge, but after the Supreme Court granted certiorari, it reversed the decision and remanded the case, finding that Lucia's agency appeal should be heard by a different ALJ who had been properly appointed under the Appointments Clause. Id . at 2055.

The Supreme Court in Lucia did not specifically address the constitutionality of the appointment of ALJs working for other federal agencies, including the Social Security Administration ("SSA"). Nonetheless, following Lucia , many Social Security claimants have challenged the status of SSA ALJs under the Appointments Clause. See generally (ECF No. 31 at 5-7) (compiling post- Lucia cases). Like those litigants, Claimant here argues that Lucia applies to SSA ALJs, requiring this Court to vacate the current ALJ's Decision and remand the case to a different ALJ appointed in accordance with the Appointments Clause. See (ECF No. 30 at 17). In response, the Commissioner argues that Claimant's argument is untimely in that she failed to raise the Appointments Clause challenge during the administrative process, thereby forfeiting this argument. See generally (ECF No. 31).

Having reviewed the facts of this case and the plethora of post- Lucia cases on this issue, the undersigned agrees with the Commissioner that Plaintiff has forfeited her Appointments Clause challenge by failing to argue the issue during the administrative proceedings. See, e.g. , Perez v. Berryhill , No. 18-20760-CV, 2019 WL 1405642, at *4 (S.D. Fla. Mar. 28, 2019) (rejecting as untimely claimant's Appointments Clause argument raised for the first time before the court); see also (ECF No. 31 at 5-7) (Commissioner's response containing compilation of cases on the timeliness of Appointments Clause claims and noting that "34 out of 35 district courts that have decided the issue ... have rejected [Appointments Clause challenges] where claimant failed to make the constitutional challenge at the administrative level"). Thus, case law supports the undersigned's conclusion that a challenge under the Appointments Clause must be presented in a timely manner. See Ryder v. United States , 515 U.S. 177, 182-83, 115 S.Ct. 2031, 132 L.Ed.2d 136 (1995) (concluding that petitioner who timely challenged composition of the trial court was entitled to a hearing before properly appointed panel); see also Lucia , 138 S. Ct. at 2055 ("This Court has held that one who makes a timely challenge to the constitutional validity of the appointment of an officer who adjudicates his case is entitled to relief.") (quoting Ryder , 515 U.S. at 182-83, 115 S.Ct. 2031 ). A "timely" challenge in this context is one that is made during the pendency of the administrative proceedings where the alleged constitutional violation is purportedly occurring. Perez , 2019 WL 1405642, at *4.

In reaching this conclusion, the undersigned need not determine whether SSA ALJs are "Officers of the United States" subject to the Appointments Clause. The undersigned notes, however, that Appointments Clause challenges to SSA ALJs have been mitigated by the Commissioner's July 16, 2018 Ruling, in which the Acting Commissioner ratified the appointment of all SSA ALJs and approved those appointments as her own. SSR 19-1p; see also Social Security Ruling 19-1p; Titles II and XVI: Effect of the Decision in Lucia v. Securities and Exchange Commission (SEC ) on Cases Pending at the Appeals Council, 84 FR 9582-02, 2019 WL 1203026 (Mar. 15, 2019). SSR 19-1p notwithstanding, Plaintiff is correct that this subsequent ratification of the appointment of SSA ALJs does not affect her case, as the Ruling does not apply retroactively. See generally (ECF No. 32 at 10-11).

Here, it is undisputed that Plaintiff did not challenge the validity of the ALJ's ability to hear her case in the administrative proceedings below. Thus, Plaintiff's current challenge to the appointment of the ALJ is belated. But see Bizarre v. Berryhill , 364 F. Supp. 3d 418 (M.D. Pa. 2019) (finding claimant did not need to raise Appointments Clause challenge at the administrative level); Bradshaw v. Berryhill , 372 F.Supp.3d 349, 351–52 (E.D.N.C. 2019) (same); Culclasure v. Comm'r of Soc. Sec. Admin. , 375 F. Supp. 3d 559, 574 (E.D. Pa. 2019) (same).

In her Reply, Plaintiff argues that because Lucia postdated all administrative proceedings except for the Appeals Council's denial of review, "it would be unreasonable to expect and require the Plaintiff to submit additional arguments for its consideration." (ECF No. 32 at 5). The undersigned finds this argument unpersuasive. Long before Lucia , well-settled case law required that Appointments Clause challenges be made timely. Muhammad v. Berryhill , 381 F. Supp. 3d 462, 469 (E.D. Pa. 2019) (finding that although claimant's case was not "frivolous or disingenuous," there was nothing "rare" that would excuse claimant's failure to raise the Appointments Clause challenge at the administrative level). Indeed, in Ryder v. United States , the Supreme Court noted that "one who makes a timely challenge to the constitutional validity of the appointment of an officer who adjudicates [her] case is entitled to a decision on the merits .... Any other rule would create a disincentive to raise Appointments Clause challenges with respect to questionable judicial appointments." Ryder , 515 U.S. at 182-83, 115 S.Ct. 2031. Moreover, "regularly permitting unsuccessful claimants to raise [Appointments Clause] challenges for the first time on judicial review would encourage the practice of ‘sandbagging:" suggesting or permitting, for strategic reasons, that the [adjudicative entity] pursue a certain course, and later—if the outcome is unfavorable—claiming that the course followed was reversible error." Muhammad , 381 F. Supp. 3d 462, 469-70 (quoting Freytag v. Comm'r, 501 U.S. 868, 895, 111 S.Ct. 2631, 115 L.Ed.2d 764 (1991) ); see also Gutierrez v. Berryhill , No. CV-17-129-GF-BMM, 2019 WL 2240602, at *4 (D. Mont. May 24, 2019) (concluding that failure to raise an Appointments Clause objection during claimant's administrative proceedings precludes claimant from raising the issue on judicial review).

Lastly, Plaintiff argues that, even if she failed to raise an Appointments Clause challenge at the administrative level, the Court should nonetheless exercise its discretion and consider the challenge in this appeal. See generally (ECF No. 32 at 6-9). In the absence of circumstances to warrant such "rare" relief, however, the undersigned declines Plaintiff's invitation. See Freytag , 501 U.S. at 879, 111 S.Ct. 2631 (concluding that claimant's case was "one of those rare cases" in which the Court should exercise discretion to hear petitioners' challenge to the constitutional authority of the trial judge).

Having rejected Plaintiff's Appointments Clause challenge, the undersigned next addresses the Motion for Summary Judgment on the merits.

B. The ALJ Properly Evaluated Plaintiff's Testimony

Plaintiff argues that the ALJ improperly discounted her testimony about the severity of her symptoms, including her physical symptoms, allegations of pain, and limitations caused by her mental health condition. See (ECF No. 33 at 6-12).

In considering a claimant's symptoms, the ALJ must follow a two-step process: "Step one is to determine whether the individual has a medically determinable impairment that could reasonably be expected to produce the alleged symptoms." Contreras-Zambrano v. Soc. Sec. Admin., Comm'r, 724 Fed.Appx. 700, 703 (11th Cir. 2018) (citing SSR 16-3p, 82 Fed. Reg. 49,463 -64 (Oct. 25, 2017)). "Step two is to evaluate the intensity and persistence of an individual's symptoms, such as pain, and determine the extent to which an individual's symptoms limit her ability to perform work-related activities." Id. (citing SSR 16-3p, 82 Fed. Reg. at 49, 464-66 ). An ALJ considers "whether there are any inconsistencies in the evidence and the extent to which there are any conflicts between [a claimant's] statements and the rest of the evidence, including [claimant's] history, the signs and laboratory findings, and statements by [the claimant's] medical sources or other persons about how [her] symptoms affect [her]." 20 C.F.R. § 416.929(c)(4).

Here, the ALJ concluded that Plaintiff's medically determinable impairments could reasonably be expected to cause her alleged symptoms, but that Plaintiff's statements concerning the intensity, persistence, and limiting effects of her symptoms were "not entirely consistent with the medical evidence and other evidence in the record." (R. 18). The ALJ articulated several reasons for discrediting Plaintiff's testimony.

First, the ALJ explained that Claimant's allegations about the limiting effects of her symptoms were "out of proportion with the overall evidence of record." (R. 19). In this regard, the ALJ noted that "while [C]laimant proclaimed in her Function Report [Exhibit 6E] that she could not cook, perform household chores, or drive, [at other times] in the record Claimant reported she was able to do a lot of laundry during the week and was able to drive, attend doctor appointments, and go to the supermarket." Id . Although Plaintiff argues that the ALJ misrepresents the record regarding Plaintiff's activities of daily living (like cooking, driving and doing laundry), see (ECF No. 33 at 6-7), the ALJ questioned Plaintiff during the administrative hearing about inconsistencies between her testimony and Function Reports, on the one hand, and medical records from treating sources, including physical therapy records, on the other. Compare, e.g., (R. 85 and 86) (Plaintiff's testimony that her sister does the laundry and her denial that she told physical therapist that claimant does laundry) with (R. 435) (Plaintiff's report to physical therapist that "she does do a lot of laundry throughout the week"). As well, the ALJ noted an inconsistency between Claimant's assertion that she suffered from back pain 24 hours a day, seven days a week, with evidence showing that, despite an alleged onset date of January 2008, Plaintiff worked as a substitute teacher through 2012. (R. 19); see also (R. 94, 197). The ALJ found that the fact Plaintiff was able to work for years after her alleged onset date "make[s] the claimant's contention that she is currently unable to work because of her constant ... pain, less persuasive." (R. 19).

Additionally, the ALJ found that Plaintiff's allegations of debilitating back pain were contradicted by treatment records from Dr. Issa. Id . In this regard, the ALJ noted that Plaintiff presented to Dr. Issa for treatment of back pain only two times (on July 15, 2015 and June 28, 2016). Id . As well, Dr. Issa's treatment notes reflect that Claimant visited mostly for medication refills, follow-ups, or for treatment of conditions unrelated to her allegedly disabling impairments. Id. ; see generally Exhibits 5F and 15F (Dr. Issa's treatment notes). The ALJ also found no evidence in the record to support Plaintiff's testimony that her doctor suggested she have back surgery. (R. 19). Further, the ALJ explained that Plaintiff's treatment was "essentially conservative and/or routine in nature," which "negates claimant's allegations that her symptoms are of the intensity, persistence, and limiting effects to be disabling." Id . In particular, the ALJ noted that: (i) "Dr. Issa only prescribed the claimant medications as treatment for her allegedly disabling physical and mental conditions and did not recommend that the claimant pursue [other] treatment" or obtain an updated MRI; (ii) the medications were "adequately effective at relieving [Claimant's] symptoms and [Claimant] did not request a different medication or ... dosage;" and (iii) despite Claimant's testimony that the medications caused tiredness, constipation, and nausea, she failed to report any adverse side effects from the medications. (R. 19-20).

Dr. Issa treated Plaintiff from June 2014 to February 2017. (R. 379); see also Exhibits 5F and 15F.

The only MRI on record is dated October 5, 2012. (R. 389-91).

The ALJ also noted Plaintiff's non-compliance with treatment as another reason to discount Plaintiff's allegations of debilitating mental health symptoms. (R. 20). For example, the ALJ noted that, in 2012, Plaintiff reported to her mental health providers that "she never remained compliant on psychotropic medications for more than one month." (R. 20); see also (R. 307). In addition, in January 2013, Plaintiff ignored her therapist's direction to take anti-depressant medication for up to six weeks to ensure its effectiveness, and instead took the medication for only three weeks. (R. 20, 313). Then, in February 2013, Plaintiff reported to her therapist that "she was taking more of her pain medications than she was supposed to ...." (R. 20, 313). Plaintiff was similarly noncompliant with treatment for her physical ailments. The ALJ noted that: (i) although Plaintiff was referred to a neurologist for back pain, there is no evidence that she sought such treatment; (ii) Plaintiff has not sought to see a specialist for back surgery, despite her testimony that her doctors had recommended surgery; and (iii) although aware of the importance of timely arrival to therapy, Plaintiff's progress was limited because of her inability to arrive on time. (R. 20).

These inconsistencies provide sufficient grounds to support the ALJ's credibility determination. See, e.g. , Vason v. Astrue , No. 2:09-CV-912-TFM, 2010 WL 2629444, at *5 (M.D. Ala. June 30, 2010) (concluding that ALJ did not err in discrediting claimant's testimony where conflicts existed within her testimony and between her testimony and the record). Because credibility determinations are the province of the ALJ, a clearly articulated credibility finding with substantial supporting record evidence will not be disturbed. Moore v. Barnhart , 405 F.3d 1208, 1212 (11th Cir. 2005) ; Foote v. Chater , 67 F.3d 1553, 1562 (11th Cir. 1995) ; May v. Comm'r of Soc. Sec. Admin. , 226 F. App'x 955, 958 (11th Cir. 2007) (noting that the ALJ provided sufficiently explicit and adequate to reasons to partially discredit claimant); see also Dyer v. Barnhart , 395 F.3d 1206, 1212 (11th Cir. 2005) (reversing where the district court improperly reweighed the evidence and failed to give substantial deference to ALJs decision, which had concluded that claimant's subjective complaints were inconsistent with the testimony and the medical record).

Moreover, notwithstanding Plaintiff's arguments to the contrary, the undersigned finds that substantial evidence supports the ALJ's assessment of Plaintiff's mental health. Here, the ALJ found that Claimant was "moderately" limited in her ability to interact with others and in her concentration, persistence, and pace. (R. 14-15). In reaching this conclusion, the ALJ noted that during mental health examinations, Plaintiff's treating psychiatrist (Dr. Barnett) repeatedly found Plaintiff to be cooperative, alert, and not confused or distractible. Id. ; see also Exhibit 14F (Dr. Barnett's treatment records). The ALJ also noted that on most days, Plaintiff spent six hours watching movies, which the ALJ found inconsistent with an inability to concentrate and persist for two-hour increments. (R. 15).

Against this backdrop, the undersigned finds that the ALJ applied the proper legal standards in considering Plaintiff's allegations about her impairments, assessing Plaintiff's testimony in the context of all the evidence, and articulating legitimate reasons for discounting Plaintiff's testimony. Allen v. Sullivan , 880 F.2d 1200, 1203 (11th Cir. 1989) (finding no merit to plaintiff's argument where the ALJ articulated various reasons for rejecting appellant's subjective complaints of pain that did not coincide with reports to psychologist). Thus, the ALJ's determination should not be disturbed. See generally Carson , 440 F. App'x at 864 ; Pettaway v. Astrue , 376 F. App'x 889, 891 (11th Cir. 2010) (finding no reversible error where ALJ provided specific reasons for discrediting claimant's testimony); see also Dyer , 395 F.3d at 1212 (finding reversible error where court disturbed an ALJ's adequately explained determination regarding claimant's subjective complaints).

C. The ALJ Properly Weighed the Medical Opinions

Plaintiff next challenges the ALJ's assessment of the medical opinions. (ECF No. 33 at 12-15). More specifically, Plaintiff argues that the ALJ erred in giving "little weight" to her treating sources, while affording "considerable" and "great" weight to the opinions of the State Agency consultants. (ECF No. 33 at 12).

Social Security regulations require the ALJ to consider and evaluate every medical opinion received in determining whether a claimant is disabled. See 20 C.F.R. § 416.927(c) ("Regardless of its source, we will evaluate every medical opinion we receive."). Medical opinions are "statements from acceptable medical sources that reflect judgments about the nature and severity of [the claimant's] impairment(s), including [the claimant's] symptoms, diagnosis and prognosis, what [the claimant] can still do despite impairment(s), and [the claimant's] physical or mental restrictions." 20 C.F.R. § 416.927(a)(1).

In weighing medical opinions, an ALJ is required to consider certain factors, including: (i) whether the claimant has an examining or treating relationship with the medical source; (ii) the medical source's area of specialization; (iii) whether the medical source's opinion is well-supported; and (iv) whether the opinion is consistent with the record. See 20 C.F.R. § 416.927(c). Moreover, an ALJ must generally give controlling weight to the opinion of a treating source about the nature and severity of a claimant's impairments if it "is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record." 20 C.F.R. § 416.927(c)(2). When an ALJ does not give controlling weight to a treating source's opinion, the ALJ must "clearly articulate" good cause for discounting it. Winschel , 631 F.3d at 1179 (quoting Phillips , 357 F.3d at 1240-41 ).

"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 (quoting Phillips , 357 F.3d at 1241 ).

1. The ALJ Properly Assessed the Opinion of Plaintiff's Psychiatrist – Dr. Barnett

Plaintiff argues that the ALJ erred in giving Dr. Barnett's opinion "little weight." (ECF No. 33 at 12-14). Dr. Barnett saw Plaintiff approximately nine times between May 2014 and March 2017. (R. 397). On March 17, 2017, Dr. Barnett completed a Mental Capacities Evaluation (Exhibit 10F) (the "MCE"). (R. 392-405). In the MCE, Dr. Barnett opined that Plaintiff had a "marked" limitations in: (i) maintaining social functions; (ii) concentration, persistence, or pace; (iii) repeated episodes of deterioration or decompensation in work or work-like settings; (iv) understanding, carrying out, and remembering simple instructions; (v) performing simple tasks on a full time basis; (vi) independently performing routine repetitive tasks; (vii) sustaining attention and concentration to tasks; (viii) using judgment; (ix) achieving quantity and quality goals and responding to time limits; (x) performing work requiring regular contact with others; (xi) relating and responding appropriately to supervisors, co-workers and the public; (xii) maintaining socially appropriate behavior and adhering to basic standards of neatness and cleanliness; (xiii) responding appropriately to usual work situations, changes in a routine work situation, and to the stress of customary work pressures in a work environment; (xiv) making simple work-related decisions; performing activities within a schedule, including maintaining regular attendance and being punctual within customary tolerances; (xv) completing a normal workday and workweek without interruptions from psychologically based symptoms and performing at a consistent pace. (R. 20-21, 393-96). Dr. Barnett also opined that Plaintiff had "poor" ability in activities of daily living. (R. 20, 393). Dr. Barnett concluded that:

"Marked" is defined as "[a]n extreme level of impairment or limitation of ability to function that would preclude[ ] the patient from functioning at least 50% of an 8-hour workday." (R. 392).

"Poor" is defined as "an impairment that precludes patient from satisfactorily performing this activity independently, appropriately, effectively, and on a sustained basis in a regular work setting for at least 25% of an 8-hour workday." (R. 392). "Sustained," in turn, is defined as "40 hours per week less a reasonable time for lunch and breaks – [considering] the effects, if any, of pain and/or prescribed medication." Id.

[Plaintiff's] ability to function is severely impaired due to her psychiatric condition. She suffers from depression, anxiety, and borderline personality disorder. She has also been diagnosed with Attention Deficit Hyperactivity Disorder. Although she has a college degree, all her attempts at work have failed due to the above psychiatric problems.

(R. 398); see also (R. 460) (Dr. Barnett's 6/30/16 one-line letter asserting that Plaintiff was "unable to work as a result of her psychiatric condition.").

The ALJ discounted Dr. Barnett's disabling opinion for several reasons. For example, the ALJ found that the doctor's opinion was "inconsistent with the totality of the evidence." (R. 21). In this regard, the ALJ noted that Dr. Barnett's opinion was inconsistent with his own treatment notes, which reflected "that on mental status examinations[,] the claimant was fully oriented to all spheres and had normal, goal directed thoughts, normal thought content, and usually had appropriate affect and was not distractible." Id. ; see also Exhibit 14F. Treatment notes also reflected that Plaintiff had "good" or "satisfactory" judgment and her attitude was "cooperative." (R. 466, 485-89). The ALJ also found Dr. Barnett's statement that Claimant did not abuse substances to be internally inconsistent with his progress note reflecting that Plaintiff was taking an "excessive amount of medications, particularly with benzodiazepines." (R. 23); see also (R. 475) (doctor's undated progress note). Second, in addition to internal inconsistencies, the ALJ found Dr. Barnett's conclusion regarding Plaintiff's limitations to be inconsistent with Dr. Issa's treatment records. For example, the ALJ found Dr. Barnett's statement that Plaintiff "does not abuse substances" to be inconsistent with Dr. Issa's progress notes that Plaintiff had "barbiturate and similar acting sedative or hypnotic dependence[,] continuous." (R. 23); compare (R. 405) (Dr. Barnett's MCE) with (R. 344) (12/23/2014 note of physician's assistant recording Plaintiff's drug use as "frequent use of prescription narcotics, daily use."). As well, the ALJ found that Dr. Barnett's disabling opinion was inconsistent with Dr. Issa's progress notes that reflect Plaintiff was typically "alert, fully oriented to all spheres, and in no acute distress." (R. 21); see also Exhibits 5F and 15F.

Third, the ALJ discounted Dr. Barnett's opinion because it was largely based on Plaintiff's subjective complaints and self-reports. (R. 21). As the ALJ explained, Dr. Barnett's mental status examinations lacked objective evidence to support his opinion, "such as documentation that the claimant had any cognitive deficits." Id . For example, in the MCE, when asked to "describe all relevant clinical findings," Dr. Barnett based his response on "claimant's feelings of guilt and worthlessness, along with a depressed and hopeless mood" rather than on objective findings. (R. 21, 396); see e.g., Hughes v. Comm'r of Soc. Sec. Admin. , 486 F. App'x 11, 13-14 (11th Cir. 2012) (finding that ALJ had good cause to discount opinions of physician because they cited to no specific objective medical evidence or test results nor referenced supportive physical or mental evaluations); Pettaway , 376 F. App'x at 891 (finding that ALJ had good cause to discount opinion that went against balance of objective medical evidence and was based mainly on claimant's subjective complaints).

Against this legal and factual backdrop, the undersigned finds that the ALJ "clearly articulated" "good cause" for discounting Dr. Barnett's treating source opinion. Winschel , 631 F.3d at 1179 (quoting Lewis , 125 F.3d at 1440 ). Moreover, the ALJ's Decision is supported by substantial evidence. See, e.g. , Crawford , 363 F.3d at 1158 (concluding that ALJ could properly discount physician's opinion that claimant was disabled where it was inconsistent with treatment notes showing "no acute distress" and no musculoskeletal abnormalities ); Carpenter v. Comm'r of Soc. Sec. , 614 F. App'x 482, 489 (11th Cir. 2015) (finding ALJ had good cause to reject treating physician's opinion of extreme limitations where examinations were generally unremarkable and treatment methods were conservative and effective); Vesy v. Astrue , 353 F. App'x 219, 223 (11th Cir. 2009) (discounting treating physician's opinion when treatment notes did not suggest claimant was as limited as doctor opined).

2. The ALJ Properly Assessed the Opinion of Plaintiff's General Practitioner – Dr. Issa

Plaintiff also argues that the ALJ erred in giving "little weight" to the opinion of Dr. Issa, who treated Plaintiff's physical impairments. (ECF No. 33 at 14-15). Dr. Issa treated Plaintiff between June 2014 and February 2017 on a monthly basis. (R. 379); see also Exhibits 5F and 15F. On March 16, 2017, Dr. Issa completed a questionnaire and a Physical Capacities Evaluation (together, the "PCE"). See (R. 379-87) (Exhibit 9F). In the PCE, Dr. Issa diagnosed Plaintiff with the following conditions: attention-deficit hyperactivity disorder unspecified type; anxiety disorder unspecified; hypothyroidism unspecified; and morbid obesity due to excess calories. (R. 379, 381). Dr. Issa concluded that Plaintiff could not perform sedentary work on a sustained basis due to "chronic back pain [which] impedes the patient from daily work routine." (R. 383). Without explanation, in the section reserved for additional comments, Dr. Issa wrote "degenerative disc disease." (R. 384). Furthermore, Dr. Issa opined that Plaintiff could: (i) sit, stand, and/or walk less than one hour in an 8-hour workday; (ii) never lift on a regular and sustained basis; (iii) not use her hands to repetitively push and pull arm controls or to perform fine manipulation; and (iv) not use her feet for repetitive movement (as in pushing and pulling of leg controls) on a regular or sustained basis. (R. 24-25, 385-86). Lastly, Dr. Issa opined that Plaintiff would need to lie down and rest during an 8-hour workday and would have to elevate her legs 80 percent of the time if performing sedentary work. (R. 25, 387).

The ALJ gave Dr. Issa's PCE "little weight" for several reasons. For example, the ALJ concluded that Dr. Issa's opinion was "inconsistent with the totality of the evidence." (R. 25). In this regard, the ALJ found that Dr. Issa's disabling opinion in the PCE was contrary to his own progress notes, which reflected mostly normal physical examinations that did not support extreme limitations. Id . As the ALJ noted, Dr. Issa never restricted Plaintiff's ability to perform any activities, and "continually reported that on general examinations[,] the [C]laimant was not in acute distress, was alert and oriented, and did not have any neurological deficits." Id . Accordingly, the ALJ concluded that Dr. Issa "did not provide any objective evidence to explain the basis for his over-restrictive limitations/opinions either in the March 2017 opinions themselves, or in his progress notes." Id . Moreover, although Dr. Issa opined that Plaintiff had moderate weakness or fatigue, the ALJ reflected that treatment notes consistently reported that Plaintiff denied fatigue and lack of energy. (R. 26). In addition, although Dr. Issa's progress notes do not discuss serious medication side effects, the PCE asserts that Plaintiff's medications may have severe side effects that could "limit the patient's effectiveness due to distraction, inattention, drowsiness, etc." (R. 26, 381).

Moreover, Dr. Issa's PCE was inconsistent with other medical evidence of record. For example, in September 2016, Dr. Eugene Antelis (Plaintiff's physical therapist for carpal tunnel ) evaluated Plaintiff and found that she was not in acute distress and had no deficiencies in her musculoskeletal range of motion. (R. 25, 458). According to Dr. Antelis, Plaintiff had normal range of motion and 5/5 bilateral muscle strength in her upper and lower extremities. (R. 25, 458).

Next, the ALJ noted that, although Dr. Issa had not diagnosed Plaintiff with any specific back condition during treatment, the PCE referred to "degenerative disc disease." (R. 26). As well, the ALJ found that "Dr. Issa's continued prescriptions of strong narcotic pain medications and prescription strength muscle relaxer are inconsistent with his physical examinations that were within normal limits." (R. 27).

After setting forth her reasons, the ALJ concluded that Dr. Issa's opinion was "not grounded in the objective record and [includes] limitations for impairments that are not found to be severe," and thus gave "little weight" to the opinion. Id . Based on this record, the undersigned finds no error in the ALJ's Decision. As with Dr. Barnett's opinion, the ALJ applied the proper legal standards and clearly articulated good cause for discounting Dr. Issa's PCE. Winschel , 631 F.3d at 1179 (quoting Lewis , 125 F.3d at 1440 ) (ALJ must "clearly articulate" "good cause" for discounting a treating source opinion). Moreover, the ALJ's Decision is supported by substantial evidence. See, e.g. , Crawford , 363 F.3d at 1158 ; Carpenter , 614 F. App'x at 489 ; Vesy , 353 F. App'x at 223. 3. The ALJ Properly Weighed the Opinions of the State Agency Consultants – Drs. Mihm, Laboy, and Mungul

Although Plaintiff makes only passing reference to the ALJ's purported error in assigning "considerable" and "great" weight to the opinions of the State Agency consultants (Drs. Mihm, Laboy, and Mungul), the undersigned finds that the ALJ applied the correct legal standards and her decision is supported by substantial evidence. See (ECF No. 33 at 7, 12-13).

a. State Agency Psychological Consultants

Dr. Mihm reviewed Plaintiff's medical records and completed a Mental Residual Functional Capacity ("MRFC") assessment at the initial level. (R. 23). In relevant part, Dr. Mihm opined that Plaintiff had only "moderate" limitations in her ability to: (i) understand and remember detailed instructions, and could remember simple and most complex instructions; (ii) carry out detailed instructions; (iii) maintain attention and concentration for extended periods; (iv) interact with the general public; (vi) accept instructions and respond appropriately to criticism from supervisors; and (vii) respond appropriately to changes in the work place. (R. 108-09).

In all other areas, Dr. Mihm found that Plaintiff was "not significantly limited." (R. 108-09). In particular, Dr. Mihm found that Plaintiff was not significantly limited in her ability to: (i) complete a normal workday and "complete some simple and some complex tasks and ... maintain [concentration] throughout the workday with ordinary supervision; and (ii) maintain socially appropriate behavior and ... relate to others in a work place on a superficial level, performing best in a setting that does not require extensive social interaction (due to reported social withdrawal). (R. 24, 109).

On reconsideration, Dr. Laboy concurred with Dr. Mihm's MRFC. (R. 24); compare (R. 108-10) with (R. 122-24). Moreover, both doctors concluded that the Claimant's allegations were "at best partially credible as the severity of [Claimant's] symptoms and limitations were not supported by the objective evidence in the file." (R. 24); see also ( R. 105, 119). Instead, they opined that Claimant's primary issues appeared to relate to prescription drug abuse. (R. 24); see also (R. 105, 119).

The ALJ gave these opinions "considerable weight" (as opposed to "great weight"), noting an internal inconsistency in these opinions between Plaintiff's purported ability to remember "most complex" instructions and complete "some complex" tasks, on the one hand, and Claimant's moderate limitations in concentration, persistence, or pace, on the other. (R. 24). Accordingly, the ALJ's RFC determination for mental work-related activities was more restrictive than the State Agency consultants' opinion.

The undersigned finds no error in the ALJ's assigning "considerable weight" to the State Agency reviewers. The ALJ reviewed the record, articulated her reasons, and substantial evidence supports her decision. Moreover, State Agency consultants are considered experts in Social Security disability programs and their opinions may be entitled to great weight when, as here, the opinions are supported by the evidence in the record. See SSR 96-6p, 1996 WL 374180, *3. The more consistent the opinion of a non-examining doctor is with the record, the more weight the ALJ may assign to that opinion. See 20 C.F.R. § 416.927(c)(4).

b. State Agency Physical Consultant

Dr. Mungul reviewed Plaintiff's medical records and completed a Physical Residual Functional Capacity ("PRFC") assessment at the reconsideration level. (R. 23). In relevant part, Dr. Mungul opined that Plaintiff could perform light exertional level work, including: (i) unlimited balancing; (ii) frequent climbing of ramps, stairs, ladders, ropes or scaffolds; (iii) frequent kneeling, crouching, or crawling; and (iv) occasional stooping. (R. 27, 121).

The ALJ also concluded that Dr. Mungul's opinion was "predicated on the evidence of record, including careful consideration of the claimant's doctors' opinions and the claimant's allegations about her symptoms and limitations," including the 2012 lumbar and cervical spine MRI. (R. 27). The ALJ afforded Dr. Mungul's opinion "great weight." Id . Because Dr. Mungul's opinion is consistent with the record before the undersigned, the ALJ did not err.

In sum, the ALJ did not err in assigning "considerable" and "great" weight, respectively, to the State Agency consultants and in relying on their opinions, when as here, the underlying opinions are supported by the record. Moreover, as is clear from the ALJ's Decision, the ALJ independently and carefully reviewed the record to determine Plaintiff's RFC. See, Ogranaja v. Comm'r of Soc. Sec. , 186 F. App'x 848, 851 (11th Cir. 2006) (holding that substantial evidence supported the ALJ's decision to assign great weight to non-examining physicians' opinions that "were supported by and consistent with the record as a whole"); see also T.R.C. v. Comm'r of Soc. Sec. Admin. , 553 F. App'x 914, 917-18 (11th Cir. 2014) (concluding that the ALJ properly gave substantial weight to the opinion of a non-examining source because the doctor provided supporting explanation for opinion and it was supported by the record); Key v. Comm'r of Soc. Sec. , No. 5:12-CV-415-OC-18PRL, 2013 WL 4774768, at *7, *9 (M.D. Fla. Sept. 4, 2013) (finding no error in the ALJ's reliance on the testimony of a non-examining medical expert who reviewed the entire record and opined on claimant's limitations); Forsyth v. Comm'r of Soc. Sec. , 503 F. App'x 892, 893 (11th Cir. 2013) (affirming the ALJ's decision to give more weight to the opinion of non-examining doctor than to that of a treating source); Jarrett v. Comm'r of Soc. Sec. , 422 F. App'x 869, 873-74 (11th Cir. 2011) (holding that the ALJ did not err in relying on the reports of non-examining physicians "because their opinions were supported by the record"). Ultimately, it is the ALJ's duty to weigh the medical evidence. Milner v. Barnhart , 275 F. App'x 947, 948 (11th Cir. 2008). Here, the ALJ properly weighed the medical opinions, applied the proper legal standards, and the ALJ's determination is supported by substantial evidence.

D. The ALJ Properly Relied on the Vocational Expert's Testimony

Lastly, Plaintiff argues that the ALJ improperly relied on the testimony of the Vocational Expert in finding that Plaintiff could work as an electronics worker, small products assembler, or mail sorter. (ECF No. 33 at 15-17); see also (R. 29, 88). Specifically, Plaintiff complains that there was no explanation given by the ALJ or the Vocational Expert of how Plaintiff "would be capable of maintaining competitive employment in such positions." (ECF No. 33 at 16-7).

Plaintiff's argument lacks merit. First, Plaintiff's reliance on Vidal v. Harris , 637 F.2d 710 (9th Cir. 1981), is misplaced. Vidal is not only non-binding on this Court, but is also inapposite to the facts of this case. Second, the ALJ thoroughly reviewed the medical evidence of Plaintiff's mental and physical impairments and included all resulting limitations in the hypothetical to the Vocational Expert. (R. 88). Thus, Plaintiff's argument that the "combination of impairments" would restrict her ability to maintain employment rings hollow. Lastly, unlike the requirement that an ALJ identify, explain, and resolve any apparent conflicts between an expert's testimony and DOT job descriptions, see, e.g. , SSR 00-4p, Plaintiff provides no support for her conclusory argument that the ALJ was required to seek further explanation from the Vocational Expert in this case. Consequently, the undersigned finds no error in the ALJ's reliance on the Vocational Expert's testimony to conclude that Plaintiff could "successfully adjust to other work that exists in significant numbers in the national economy." (R. 30).

The Vidal court concluded that the record did not contain sufficient evidence to support a finding that claimant was qualified for other jobs in the national economy. Vidal , 637 F.2d at 713. In that case, the vocational expert had stated that "claimant would require considerable more training than a person of average learning ability," but failed to provide evidence on whether employers would find the requisite training to be reasonable. Id . Notably, the claimant in Vidal was also without counsel and the Ninth Circuit found that the ALJ had failed to adequately examine the expert. Id. The instant case has none of those facts.
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VI. RECOMMENDATION

For the reasons set forth above, the undersigned respectfully RECOMMENDS that: (i) Defendant's Motion for Summary Judgment (ECF No. 23) be GRANTED ; (ii) Plaintiff's Motion to Declare Social Security Administration Administrative Law Judges Unconstitutional as Violating the Appointments Clause and Remand for New Administrative Hearing (ECF No. 30) be DENIED ; and (iii) the ALJ's Decision be AFFIRMED .

Within fourteen (14) days after being served with a copy of this Report and Recommendation, any party may serve and file written objections to any of the above findings and recommendations as provided by the Local Rules for this district. 28 U.S.C. § 636(b)(1) ; S.D. Fla. Mag. J. R. 4(b). The parties are hereby notified that a failure to timely object waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions contained in this Report and Recommendation. 11th Cir. R. 3–1 (2019); see Thomas v. Arn , 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985).

DONE AND ORDERED at Chambers, in Fort Lauderdale, Florida, on January 17, 2020.


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Gagliardi v. Soc. Sec. Admin.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
Feb 28, 2020
441 F. Supp. 3d 1284 (S.D. Fla. 2020)

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Case details for

Gagliardi v. Soc. Sec. Admin.

Case Details

Full title:PIA GAGLIARDI, Plaintiff, v. SOCIAL SECURITY ADMINISTRATION, Defendant.

Court:UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

Date published: Feb 28, 2020

Citations

441 F. Supp. 3d 1284 (S.D. Fla. 2020)

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