Case 2:12-cv-00353-JES-DNF Document 21 Filed 09/19/13 Page 1 of 4 PageID 636
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
Case No. 2:12-cv-353-FtM-29DNF
Commissioner of Social Security,
OPINION AND ORDER
This matter is before the Court on consideration of
Magistrate Judge Douglas N. Frazier’s Report and Recommendation
(Doc. #20), filed on August 23, 2013, recommending that the
Commissioner’s decision to deny Social Security Disability
Insurance Benefits and Supplemental Security Income be affirmed.
No objections have been filed, and the time to do so has expired.
The Court reviews the Commissioner’s decision to determine if
it is supported by substantial evidence and based upon proper legal
standards. Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158
(11th Cir. 2004)(citing Lewis v. Callahan, 125 F.3d 1436, 1439
(11th Cir. 1997)). Substantial evidence is more than a scintilla
but less than a preponderance, and is such relevant evidence as a
reasonable person would accept as adequate to support a conclusion.
Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005)(citing
Crawford, 363 F.3d at 1158-59). Even if the evidence preponderates
Case 2:12-cv-00353-JES-DNF Document 21 Filed 09/19/13 Page 2 of 4 PageID 637
against the Commissioner’s findings, the Court must affirm if the
decision reached is supported by substantial evidence. Crawford,
363 F.3d at 1158-59 (citing Martin v. Sullivan, 894 F.2d 1520, 1529
(11th Cir. 1990)). The Court does not decide facts anew, make
credibility judgments, reweigh the evidence, or substitute its
judgment for that of the Commissioner. Moore, 405 F.3d at 1211
(citing Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir.
1983)); Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir.
2005)(citing Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th
Cir. 2004)). The Court reviews the Commissioner’s conclusions of
law under a de novo standard of review. Ingram v. Comm’r of Soc.
Sec. Admin., 496 F.3d 1253, 1260 (11th Cir. 2007)(citing Martin,
894 F.2d at 1529).
Plaintiff raised three issues: (1) whether the Administrative
Law Judge (ALJ) erred in evaluating plaintiff’s mental impairment;
(2) whether the ALJ erred by failing to consider plaintiff’s pain
and rejecting her credibility; and (3) whether the ALJ erred by not
considering the potential for absenteeism by finding plaintiff
capable of other work. (Doc. #16.) The Magistrate Judge found
that plaintiff’s mental condition was considered by the ALJ, but
found to be nonsevere and causing only a minor limitation, and the
determination was supported by substantial evidence. The
Magistrate Judge also found that the ALJ properly applied the
Eleventh Circuit’s pain standard as only one record reflected an
Case 2:12-cv-00353-JES-DNF Document 21 Filed 09/19/13 Page 3 of 4 PageID 638
allegation of pain, and plaintiff’s subjective complaints of
intensity and persistence were not supported by the record. The
Magistrate Judge further found that the ALJ did not err by giving
great weight to the opinions of state agency medical advisors
because the opinions were consistent with the record and
plaintiff’s status had not substantially changed from the date of
As to the last issue, the Magistrate Judge found that the ALJ
did not err by relying on the vocational expert’s testimony that
there were jobs that plaintiff could perform. Th ALJ did consider
the vocational expert’s testimony regarding blurry vision and that
an individual who missed more than 3 days of work a month would not
be able to maintain employment, see Tr. 31; Tr. 64, but the
Magistrate Judge noted that plaintiff failed to show that she had
blurry vision and therefore the ALJ did not err by finding that the
medical record evidence did not support the restrictions. (Doc.
#20, p. 15.) After a de novo review, the Court agrees with the
findings and recommendations in the Report and Recommendation.
Accordingly, it is now
1. The Report and Recommendation (Doc. #14) is accepted and
adopted by the Court.
2. The Decision of the Commissioner of Social Security is
Case 2:12-cv-00353-JES-DNF Document 21 Filed 09/19/13 Page 4 of 4 PageID 639
3. The Clerk of the Court shall enter judgment accordingly
and close the file.
DONE AND ORDERED at Fort Myers, Florida, this 19th day of
Hon. Douglas N. Frazier
U.S. Magistrate Judge
Counsel of Record