MEDWIT

v.

COMMISSIONER OF SOCIAL SECURITY

Plaintiff Michael Medwit seeks review of the Commissioner of Social Security’s (“Commissioner”) final decision denying his application for supplemental security income. (Doc. 1.) The Magistrate Judge issued a Report and Recommendation (“R&R”) recommending that the Commissioner’s denial be affirmed. (Doc. 24.) After careful review of Mr. Medwit’s timely objections (Doc. 25) and the record on appeal, the Commissioner’s decision is affirmed.¹

STANDARD OF REVIEW

A district judge may accept, reject, or modify the magistrate judge’s report and recommendation. 28 U.S.C. § 636(b)(1). When a party makes a timely and specific objection to a magistrate judge's report and recommendation, the district judge “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” Id.

DISCUSSION

Mr. Medwit raises five objections to the R&R (Doc. 25), which largely mirror his arguments—including the same case citations—in the parties’ joint memorandum (Doc. 22). The Court will address each argument in turn. Objection I: The ALJ improperly failed to include mental limitations in the residual functional capacity (“RFC”) and in hypothetical questions to the vocational expert (“VE”). Mr. Medwit first argues that the ALJ erred by not including any limitations from his alleged mental impairments in either the RFC or in the ALJ’s hypothetical questioning of the VE. (Doc. 25 at 1–5.) Relying on contradictory portions of the record, he argues that substantial evidence does not support the ALJ’s conclusion that Mr. Medwit could perform any past relevant work. Although Mr. Medwit’s RFC accounts for certain physical limitations, it expressly states that “[t]here are no mental health limitations.” (Tr. at 66.)² As the R&R correctly notes (Doc. 24 at 9–11), substantial evidence supported the ALJ’s determination that Mr. Medwit, at most, had “minimal, if any, work-related psychological limitations.” (Tr. at 68.)

To begin, the ALJ noted that Mr. Medwit’s medically determinable mental impairments were nonsevere and that he had only mild limitations in the following four areas of mental functioning: (1) understanding, remembering, or applying information; (2) interacting with others; (3) ability to concentrate, persist, or maintain pace; and (4) adapting or managing oneself. (Tr. at 65–66.) Then, the ALJ performed a more detailed assessment in formulating Mr. Medwit’s RFC,

which otherwise reflects these mild limitations. (Id. at 66.) While Mr. Medwit testified that he could not focus or function given his depression, the ALJ found that the other evidence of record contradicted these statements. (Id. at 67–68.) For example, the ALJ noted that Mr. Medwit did not take his psychotropic medication as prescribed, and despite his diagnoses of adjustment disorder with depressed mood, his treatment history did not show more than minimal psychologically based work-related limitations. (Id. at 65, 67.) The ALJ also considered Mr. Medwit’s own testimony about his daily activities which also support a finding that his mental impairments cause, at most, mild limitations. (Id.) And the Magistrate Judge rightfully found that the above considerations—including

trouble concentrating or focusing, insight was limited,” poor judgment, poor longterm memory, poor sleep, and that he suffered from anxiety, racing thoughts, trouble maintaining hygiene, and self isolation. (Doc. 25 at 3.) Ms. Reci noted these issues during an intake screening on June 27, 2017. (Tr. at 398.) But only the day before, another provider at SalusCare completed a diagnostic review form, which concluded that Mr. Medwit is “goal directed and his thoughts followed logical sequence . . . [j]udgment and insight is good at this time . . . kept good eye contact and his mood was positive and his affect was appropriate.” (Id. at 408.) The R&R cites other similar treatment notes that the ALJ considered which, taken together and notwithstanding the favorable evidence Mr. Medwit cites, constitute substantial evidence for the ALJ’s RFC determination. (Doc. 24 at 9–10.) For these reasons, the ALJ neither erred in formulating Mr. Medwit’s RFC, nor by using that RFC in the hypotheticals posed to the VE. As the R&R aptly notes, the ALJ was not required to include unsupported limitations in his hypotheticals. (Doc 24 at 11); see Crawford, 363 F. 3d at 1161 (“[T]he ALJ was not required to include findings in the hypothetical that the ALJ had properly rejected as unsupported.”). Accordingly, Mr. Medwit’s first objection does not constitute reversible error. Objection II: The ALJ erred in failing to obtain or provide a mental [RFC] assessment. Next, Mr. Medwit re-raises a confusing argument that the ALJ erred by not providing a mental RFC assessment despite finding that Mr. Medwit “exhibited fair insight and judgment.” (Doc. 25 at 5–7 (citing Tr. at 66).) He contends that “fair” is equivalent to at least a “moderate” limitation and relies on several cases discussing this point. (Id.) As the Magistrate Judge noted, the “premise of this argument is incorrect.” (Doc. 24 at 11.) In short, the cases Mr. Medwit cited deal with how the term “fair” is defined in certain social security forms not at issue here.

(Id. at 12.) Additionally, Mr. Medwit conflates “insight and judgment” with the four areas of mental functioning (Tr. at 65) that may sustain a limitation, of which “insight and judgment” are not a criterion. (Doc. 24 at 11.) For the reasons stated in the R&R (id.), this argument also fails. Objection III: The ALJ’s refusal to order a physical consultative examination to include bilateral shoulder x-ray constituted a failure to adequately develop the record. Third, Mr. Medwit argues that the ALJ violated his obligation to develop a full and fair record when the ALJ did not request a consultative examination despite Mr. Medwit’s testimony of severe shoulder pain. (Doc. 25 at 8–14.) Mr. Medwit notes that “[a]bout six weeks after the ALJ issues his decision,” an x-ray revealed “severe loss and irregularity of [his shoulder’s] joint surfaces.” (Doc. 25 at 8 (emphasis added).) To find error on this point would require an exacting standard not supported by law. See Ingram v. Comm’r, 496 F. 3d 1253, 1269 (11th Cir. 2007) (The ALJ “is not required to order a consultative examination as long as the record contains sufficient evidence for the [ALJ] to make an informed decision”). Mr. Medwit recognizes as much by arguing that “an ALJ reversibly errs by not ordering a consultative examination when required for an informed decision.” (Doc. 25 at 14 (emphasis added).) But the record here—including the medical evidence and Mr. Medwit’s own testimony—provided more than enough evidence for the ALJ to make an informed decision. The R&R summarizes the portions of the record that the ALJ considered in finding that Mr. Medwit can engage in light work notwithstanding his shoulder pain. (Doc. 24 at 14–17.) The ALJ determined that evidence contradicted Mr. Medwit’s testimony about the severity of his shoulder pain. And Mr. Medwit does not identify sufficient evidence which may have given rise to the inference that the ALJ should have further explored this issue through a consultative exam.³ Needless to say, an examination

Mr. Medwit’s fourth objection is a continuation of his previous argument. Specifically, he argues that the ALJ committed error by not including any limitations accounting for his shoulder pain in the RFC or the ALJ’s hypothetical to the VE. (Doc. 25 at 14–16.) This argument fails principally for the same reasons as Mr. Medwit’s third objection. But, to reiterate, the ALJ relied on substantial evidence in the record which contradicted Mr. Medwit’s testimony on the severity of

CONCLUSION

Based upon the foregoing, it ORDERED that: 1. Mr. Medwit’s objections to the Magistrate Judge’s R&R (Doc. 25) are

OVERRULED.

2. The R&R (Doc. 24) is ADOPTED and made part of this Order. 3. The final decision of the Commissioner is AFFIRMED. 4. The Clerk is DIRECTED to terminate any pending deadlines and close the file. ORDERED at Fort Myers, Florida, on March 25, 2021.

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JOHN L. BADALAMENTI

UNITED STATES DISTRICT JUDGE work, if I add to that occasionally interaction [sic] with public, coworkers, and supervisor.” (Tr. at 118-19 (emphasis added).) In response to this RFC which included certain limitations for mental impairments (e.g., occasional interaction), the VE testified that Mr. Medwit could perform the job of cleaner/housekeeper which is light-level work with an SVP of² and of which there are 700,000 jobs in the national economy. (Id. at 118.) While the ALJ did not identify the cleaner/housekeeper job as an alternative finding, given the VE’s unchallenged testimony, any remand would be futile. See McLain v. Astrue, No. 8:06-cv-2156-T- TBM, 2008 WL 616094, at *7 (M.D. Fla. Mar.³, 2008) (“The error, however, in and of itself, does not warrant a remand given that the VE identified three other jobs [plaintiff ostensibly could perform in response to the [] hypothetical question.”). Accordingly, any remand would be an exercise in futility as substantial evidence supports the ALJ’s conclusion that Mr. Medwit is not disabled, as set forth in the applicable standard. See generally Wright v. Barnhart, 153 F. App’x 678, 684 (11th Cir. 2005) (“[W]hen an incorrect application of the regulations results in harmless error because the correct application would not contradict the ALJ’s ultimate findings, the ALJ’s decision will stand”); see also Diorio v. Heckler, 721 F. 2d 726, 728 (11th Cir. 1983).