Franz v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

WILLIAM JAMES FRANZ,

Plaintiff,

v. Case No: 6:19-cv-1048-Orl-LRH

COMMISSIONER OF SOCIAL

SECURITY,

Defendant.

MEMORANDUM OF DECISION1

William James Franz (“Claimant”) appeals the final decision of the Commissioner of Social

Security (“the Commissioner”) denying his application for disability insurance benefits. Doc. No.

1. Claimant raises three arguments challenging the Commissioner’s final decision, and, based on

those arguments, requests that the matter be reversed and remanded for further administrative

proceedings. Doc. No. 26, at 13, 27, 31, 38. The Commissioner asserts that the decision of the

Administrative Law Judge (“ALJ”) is supported by substantial evidence and should be affirmed.

Id. at 39. For the reasons stated herein, the Commissioner’s final decision is AFFIRMED.

I. PROCEDURAL HISTORY.

On September 28, 2015, Claimant filed an application for disability insurance benefits,

alleging a disability onset date of February 19, 2014. R. 171–76. Claimant’s application was

denied initially and on reconsideration, and he requested a hearing before an ALJ. R. 103–05, 108–

12, 114–15. On May 17, 2018, a hearing was held before the ALJ, at which Claimant was

1 The parties have consented to the exercise of jurisdiction by a United States Magistrate Judge. See

Doc. Nos. 23–25.

represented by an attorney. R. 34–70. Claimant and a vocational expert (“VE”) testified at the

hearing. Id.

After the hearing, the ALJ issued an unfavorable decision finding that Claimant was not

disabled. R. 20–29. Claimant sought review of the ALJ’s decision by the Appeals Council. R.

12–15. On April 3, 2019, the Appeals Council denied the request for review. R. 1–6. Claimant

now seeks review of the final decision of the Commissioner by this Court. Doc. No. 1.

II. THE ALJ’S DECISION.2

After careful consideration of the entire record, the ALJ performed the five-step evaluation

process as set forth in 20 C.F.R. § 404.1520(a). R. 20–29.3 The ALJ found that Claimant met the

insured status requirements of the Social Security Act through March 31, 2020. R. 22. The ALJ

concluded that Claimant had not engaged in substantial gainful activity since the alleged disability

onset date: February 19, 2014. Id. The ALJ found that Claimant suffered from the following

severe impairments: glenohumeral arthritis of the right shoulder; rotator cuff tear of the left

shoulder (status post repair with labral arthroscopy); status post L4-5 decompression and interbody

fusion due to stenosis with degenerative disease and spondylolisthesis; osteoarthritis of the right

elbow; osteoarthritis of the bilateral knees, left worse than right, with medial compartment and bone-

on-bone articulation; osteoarthritic changes of the left ankle and foot; and degenerative changes of

2 Upon a review of the record, I find that counsel for the parties have adequately stated the pertinent

facts of record in the Joint Memorandum. Doc. No. 26. Accordingly, I adopt those facts included in the

body of the Joint Memorandum by reference without restating them in entirety herein.

3 An individual claiming Social Security disability benefits must prove that he or she is disabled.

Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005) (citing Jones v. Apfel, 190 F.3d 1224, 1228 (11th

Cir. 1999)). The five steps in a disability determination include: (1) whether the claimant is performing

substantial, gainful activity; (2) whether the claimant’s impairments are severe; (3) whether the severe

impairments meet or equal an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1; (4) whether

the claimant can return to his or her past relevant work; and (5) based on the claimant’s age, education, and

work experience, whether he or she could perform other work that exists in the national economy. See

generally Phillips v. Barnhart, 357 F.3d 1232, 1237 (11th Cir. 2004) (citing 20 C.F.R. § 404.1520).

the cervical spine with posterior spurring at C5-6 and C6-7. R. 22–23. The ALJ concluded that

Claimant did not have an impairment or combination of impairments that met or equaled a listed

impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1. R. 23.

Based on a review of the record, the ALJ found that Claimant had the residual functional

capacity (“RFC”) to perform less than a full range of medium work as defined in the Social Security

regulations,4 as follows:

[T]he claimant can lift and/or carry 50 pounds occasionally and 25 pounds

frequently. The claimant can sit with normal breaks for a total of about 6 hours in

an 8-hour workday, and stand and/or walk with normal breaks for a total of about 6

hours in an 8-hour workday. The claimant can frequently engage in non-weighted

overhead reaching with the bilateral upper extremities, and frequently climb ramps

and stairs, balance, stoop, kneel, and crouch. The claimant should never climb

ladders or scaffolds, crawl, work at unprotected heights, or work with dangerous

moving mechanical parts.

R. 23.

The ALJ concluded that Claimant was unable to perform any past relevant work because the

demands of Claimant’s past work as a municipal maintenance worker and small engine mechanic

exceeded Claimant’s RFC. R. 27. However, based on Claimant’s age, education, work

experience, and RFC, as well as the testimony of the VE, the ALJ concluded that there were jobs

existing in significant numbers in the national economy that Claimant could perform, representative

occupations which would include kitchen helper; dining room attendant; and counter supply worker.

R. 28. Accordingly, the ALJ concluded that Claimant was not disabled from the alleged disability

onset date through the date of the decision. R. 29.

4 Pursuant to the Social Security regulations, “[m]edium work involves lifting no more than 50

pounds at a time with frequent lifting or carrying of objects weight up to 25 pounds. If someone can do

medium work, [the SSA] determine[s] that he or she can also do medium, light, and sedentary work.” 20

C.F.R. §§ 404.1567(c), 416.967(c).

III. STANDARD OF REVIEW.

Because Claimant has exhausted his administrative remedies, the Court has jurisdiction to

review the decision of the Commissioner pursuant to 42 U.S.C. § 405(g), as adopted by reference

in 42 U.S.C. § 1383(c)(3). The scope of the Court’s review is limited to determining whether the

Commissioner applied the correct legal standards and whether the Commissioner’s findings of fact

are supported by substantial evidence. Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th

Cir. 2011). The Commissioner’s findings of fact are conclusive if they are supported by substantial

evidence, 42 U.S.C. § 405(g), which is defined as “more than a scintilla and is such relevant evidence

as a reasonable person would accept as adequate to support a conclusion.” Lewis v. Callahan, 125

F.3d 1436, 1440 (11th Cir. 1997).

The Court must view the evidence as a whole, taking into account evidence favorable as well

as unfavorable to the Commissioner’s decision, when determining whether the decision is supported

by substantial evidence. Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995). The Court may

not reweigh evidence or substitute its judgment for that of the Commissioner, and, even if the

evidence preponderates against the Commissioner’s decision, the reviewing court must affirm if the

decision is supported by substantial evidence. Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th

Cir. 1983).

IV. ANALYSIS.

In the Joint Memorandum, which I have reviewed, Claimant raises three assignments of

error: (1) the ALJ erred in the RFC determination by failing to properly weigh medical opinions,

accurately characterize the medical evidence, and obtain all pertinent medical evidence; (2) the ALJ

erred in relying on the testimony of the VE after posing a hypothetical that failed to adequately

reflect Claimant’s limitations; and (3) the ALJ erred in evaluating Claimant’s subjective complaints

of pain. Doc. No. 26. Accordingly, these are the only issues that I address.

A. Claimant’s RFC.

Claimant argues that the ALJ erred in his determination regarding Claimant’s RFC in three

respects: (1) failing to appropriately weigh the opinions of Claimant’s treating physicians; (2)

failing to accurately characterize the medical evidence; and (3) failing to fully develop the record.

Doc. No. 26. Each of Claimant’s contentions will be addressed, in turn.

1. Medical Opinions.

In determining a claimant’s RFC, the ALJ must consider all relevant evidence, including the

medical opinions of treating, examining, and non-examining medical sources. See 20 C.F.R. §§

404.1545(a)(3), 416.945(a)(3). The ALJ must consider a number of factors when weighing

medical opinions, including: (1) whether the physician examined the claimant; (2) the length, nature,

and extent of the physician’s relationship with the claimant; (3) the medical evidence supporting the

physician’s opinion; (4) how consistent the physician’s opinion is with the record as a whole; and

(5) the physician’s specialization. Id. § 404.1527(c). “These factors apply to both examining and

non-examining physicians.” Huntley v. Soc. Sec. Admin., Comm’r, 683 F. App’x 830, 832 (11th

Cir. 2017) (citing 20 C.F.R. §§ 404.1527(e), 416.927(e)).5

A treating physician’s opinion must be given substantial or considerable weight, unless good

cause is shown to the contrary. See 20 C.F.R. § 404.1527(c)(2) (giving controlling weight to the

treating physician’s opinion unless it is inconsistent with other substantial evidence). There is good

cause to assign a treating physician’s opinion less than substantial or considerable weight, where:

5 Unpublished opinions of the Eleventh Circuit are cited as persuasive authority. See 11th Cir. R.

36–2.

(1) the treating physician’s opinion is not bolstered by the evidence; (2) the evidence supports a

contrary finding; or (3) the treating physician’s opinion is conclusory or inconsistent with the

physician’s own medical records. Winschel, 631 F.3d at 1179 (citing Phillips, 357 F.3d at 1241).

a. Dr. Friedman.

Claimant first argues that the ALJ erred in failing to explicitly weigh the opinions of Jeffrey

Friedman, D.O. Doc. No. 26, at 15–16. Dr. Friedman is Claimant’s primary care physician. Id.

at 9. On February 10, 2016, Dr. Friedman completed a Physical Residual Functional Capacity

Questionnaire regarding Claimant’s physical limitations. R. 643–47.

In the decision, the ALJ states as follows as it relates to Dr. Friedman:

[T]he undersigned has considered the physical residual functional capacity

questionnaire completed by [Dr. Friedman] (Exhibit 6F, Pg. 54). Dr. Friedman

opined that due to shoulder, back, and knee pain, the claimant would be limited to

walking 4 hours in an 8-hour day and sitting 4 hours in an 8-hour day with the need

to take unscheduled breaks as needed. Although he states the claimant would be

able to lift up to 50 pounds below waist, he would only be able to use his arms 50%

of the time. He further assessed the claimant struggled from good and bad days and

therefore would likely miss more than 4 days a month due to his impairments.

Although the undersigned accepts the claimant’s functioning is limited due to his

combined impairments, Dr. Friedman’s limitations are grossly inconsistent with the

evidence as a whole, including his own objective findings upon many examinations

that claimant presented with a normal gait, full strength in all his extremities, and

claimant’s own reported improvement in pain following procedures. Further, the

claimant admits to fairly active daily activities that further support he would be able

to perform work within the residual functional capacity above.

R. 26 (emphasis added).

Claimant is correct that an ALJ errs by failing to specify the weight afforded to the opinion

of a treating physician. See Brown v. Comm'r of Soc. Sec., 680 F. App’x 822, 824 (11th Cir. 2017).

Contrary to Claimant’s contentions, however, in this case it is clear from the ALJ’s decision that he

afforded the opinions of Dr. Friedman less than considerable weight. Thus, I do not find that the

ALJ erred in failing to state the weight afforded to Dr. Friedman’s opinions. See, e.g.,

Miltenberger v. Colvin, No. 3:15-CV-99 JVB, 2016 WL 8669521, at *2 (N.D. Ind. Sept. 30, 2016)

(finding no requirement that the ALJ “use magic words for indicating what weight he’s assigning

to a medical opinion”); Gilmore v. Comm’r of Soc. Sec., No. 4:13-CV-43, 2014 WL 2999574, at *7

(E.D. Tenn. July 2, 2014) (“The ALJ failed to explicitly state that he was not assigning Dr. Benne's

opinion controlling weight; but, it is obvious that he is not and . . . there are no magic words needed

to convey this information to the Court or Plaintiff.”).

Moreover, even assuming that the ALJ’s explanation that Dr. Friedman’s opinions were

“grossly inconsistent” was insufficient to satisfy the ALJ’s obligation to state the weight afforded

to such opinions, any error by the ALJ was, at most, harmless because the ALJ’s analysis of Dr.

Friedman’s opinions in the decision allows for meaningful review. See, e.g., Kaplowitz v. Acting

Comm’r of Soc. Sec., No. 18-12100, 2020 WL 1274509, at *5 (11th Cir. Mar. 17, 2020) (finding

harmless error in ALJ failing to explicitly state weight given to medical opinion because the ALJ

“clearly considered the opinion . . ., found that the evidence supported a contrary finding, and gave

the opinion little to no weight—even if [the ALJ] did not explicitly state how little weight. And

because the ALJ evaluated and discussed [the subject medical opinion, the Court was] able to

determine ‘whether the ultimate decision on the merits of the claim is rational and supported by

substantial evidence.’” (quoting Winschel, 631 F.3d at 1179)). Here, the ALJ provided good cause

reasons for giving Dr. Friedman’s opinions less than considerable weight. Claimant does not

challenge any of those reasons here, and thus has waived any argument in this regard. Cf. Crawford

v. Comm’r of Soc. Sec., 363 F.3d 1155, 1161 (11th Cir. 2004) (refusing to consider an argument that

the claimant failed to raise before the district court). And, I note that those reasons—that the

limitations posed by Dr. Friedman in the RFC Questionnaire were inconsistent with the medical

evidence, including Dr. Friedman’s own examination findings, as well as Claimant’s activities of

daily living—are supported by substantial evidence.

Accordingly, Claimant has not established that the ALJ reversibly erred in failing to

explicitly state the weight afforded to the opinions of Dr. Friedman.

b. Dr. Burkhart.

Claimant next argues that the ALJ erred in failing to state the weight afforded to the opinions

of Bradd G. Burkhart, M.D., who treated Claimant for his right shoulder impairment. Doc. No. 26,

at 5, 16. In his treatment notes, Dr. Burkhart opined that as of May 6, 2015, Claimant had reached

maximum medical improvement and that Claimant had permanent restrictions of no overhead lifting

or work, no lifting more than 15 pounds with the right upper extremity, and no lifting away from

center for the right upper extremity. R. 370.

In the decision, the ALJ acknowledged the permanent restrictions imposed by Dr. Burkhart,

but the ALJ found that “[a]lthough Dr. Burkhart has a treating relationship with the claimant, . . .

these restrictions are inconsistent with documented improvement and findings of essentially normal

strength following surgical procedures. Such limitations are, therefore, not persuasive because they

are not consistent with the record.” R. 25.

Claimant again argues that because the ALJ failed to explicitly state the weight assigned to

Dr. Burkhart’s opinion, it “is impossible to determine how this opinion was factored into the residual

functional capacity or whether the decision of the ALJ is supported by substantial evidence.” Doc.

No. 26, at 17.

However, I again find that any error in the ALJ failing to explicitly weigh the opinions of

Dr. Burkhart was, at most, harmless. It is clear from the decision that ALJ afforded the opinions

of Dr. Burkhart less than considerable weight because the ALJ found that the permanent limitations

opined by Dr. Burkhart were “not persuasive.” See, e.g., Kaplowitz, 2020 WL 1274509, at *5.

Moreover, the ALJ found that Dr. Burkhart’s opinions were inconsistent with the record and

documented findings of normal strength following surgical procedures. See R. 25. Claimant does

not challenge that finding here, thereby waiving any such claim to the contrary. Cf. Crawford, 363

F.3d at 1161. And, I find that the ALJ’s reason to find Dr. Burkhart’s opinions “not persuasive”

and “inconsistent with documented improvement and findings of essentially normal strength

following surgical procedures” is supported by substantial evidence. See R. 25 (citing Exhibit 2F;

4F). Thus, because the ALJ’s good cause reason for finding Dr. Burkhart’s opinions less than

persuasive is supported by substantial evidence, I find no reversible error. See, e.g., Kaplowitz,

2020 WL 1274509, at *5.

2. Medical Evidence.

Claimant next argues that the ALJ did not accurately characterize the medical evidence of

record. Doc. No. 26, at 17. Specifically, Claimant argues that the ALJ failed to cite a medical

record demonstrating that he underwent a second lumbar fusion after the alleged onset date, which

“is extremely important evidence that should have been seen by the ALJ.” Id.

The Commissioner responds that the ALJ is not required to cite to every piece of evidence

in the decision, so long as the ALJ considers the claimant’s medical condition as a whole. Id. at

23. The Commissioner also argues that the medical record to which Claimant points actually

supports the ALJ’s decision, therefore, even if the ALJ erred, any error was harmless. Id. at 23–

24.

The Commissioner’s argument is more persuasive. As an initial matter, “there is no rigid

requirement that the ALJ specifically refer to every piece of evidence in his decision, so long as the

ALJ’s decision” enables the reviewing court to conclude that the ALJ considered the claimant’s

medical condition as a whole. Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005). The ALJ’s

decision in this case satisfies this standard. In addition, on review, it is entirely unclear from

Claimant’s argument how the cited record supports his position. The record is a post-operative

note from Dr. Rohit K. Khanna, M.D. R. 275. That record states that Calamint was six weeks

post-op; his motor strength was 5/5; and he was ambulating independently. Id. The record further

states that Claimant was “walking 2 miles a day with the minimal back pain and resolved neurogenic

claudication and radicular symptoms,” and that Claimant was “pleased with the results.” Id.

Claimant fails to explain how “the residual functional capacity determination may have been

different,” based on the post-operative note. See Doc. No. 26, at 17–18. Accordingly, I find no

error.

3. Full and Complete Record.

Claimant also argues that based on a review of the medical records from her second lumbar

surgery, “it is obvious” that “there are other medical records from the doctor performing the fusion

[Dr. Khanna] that are not in the record.” Doc. No. 26, at 18. In particular, Claimant argues that

based on Dr. Khanna’s post-op treatment note from the second lumbar surgery, “there is medical

evidence from the operation that is missing from the record, and apparently other medical records

from Dr. Khanna that were missing from the record.” Id. Accordingly, Claimant suggests that

there is “no way in knowing whether the missing evidence from Dr. Khanna would support the

claimant’s allegations regarding his inability to work.” Id. at 19.

As the Commissioner argues, however, Claimant’s argument is entirely speculative. Id. at

25. Claimant does not state that any particular records from Dr. Khanna exist or identify what

information is contained in those additional records that would support his claim. See Jones v.

Astrue, 691 F.3d 730, 734–35 (5th Cir. 2012) (claimant’s bare assertion that additional records might

exist was not enough to support remand); see also Graham v. Apfel, 129 F.3d 1420, 1423 (11th Cir.

1997) (before the Court will remand a case for further development of the record, there must be a

showing that the ALJ’s failure to develop the record led to evidentiary gaps that resulted in

unfairness or clear prejudice (citing Brown v. Shalala, 44 F.3d 931, 934-35 (11th Cir. 1995))).

Moreover, “the burden is on the claimant to show that she is disabled and, therefore, she is

responsible for producing evidence to support her application.” McCloud v. Barnhart, 166 F.

App’x 410, 418 (11th Cir. 2006). At the hearing before the ALJ, the ALJ asked Claimant’s

representative whether there were any outstanding records, to which the representative responded,

“No.” R. 38. Thereafter, the ALJ left the record open for Plaintiff to submit new evidence

regarding an x-ray for his knees. R. 52–53.6 Claimant never mentioned any outstanding records

from Dr. Khanna nor asked for additional time to submit records from Dr. Khanna. Instead, he

represented that the record was otherwise complete. R. 38. Accordingly, I find Claimant’s

argument that the ALJ failed to fully develop the record unpersuasive.7

6 At the administrative hearing, Claimant testified that approximately two weeks prior, he had x-rays

of both knees and his neck. R. 53. Claimant’s attorney tried to obtain the records prior to the hearing, but

was unable to. Id. Therefore, counsel asked that the ALJ leave the record open for submission of those

records; the ALJ obliged and allowed counsel 20 days. R. 53–54.

7 It is true that the ALJ has basic obligation to develop a full and fair record. See Graham v. Apfel,

129 F.3d 1420, 1422 (11th Cir. 1997). However, Claimant argues that “[t]his duty requires that the ALJ

‘scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts,’ be ‘especially

diligent in ensuring that favorable as well as unfavorable facts and circumstances are elicited.’ [Cowart v.

Schweiker, 662 F.2d 731, 735 (11th Cir. 1981), and ‘investigate the facts and develop the arguments both for

and against granting benefits.’ Crawford & Company v. Apfel, 235 F.3d 1298, 1304 (11th Cir. 2000).” Doc.

No. 26, at 18–19. Cowart and Crawford, however, involved cases where the claimant was not represented

by counsel, and therefore the ALJ’s obligation to develop a full and fair record rose to a “special duty.” See

Graham, 129 F.3d at 1422–23. Here, however, Claimant was represented by counsel during the

administrative proceedings. See R. 34, 36–37.

B. Testimony of the VE.

An ALJ may consider the testimony of a VE at step five of the sequential evaluation process

when determining whether the claimant can perform other jobs in the national economy. Phillips,

357 F.3d at 1240. The ALJ must pose hypothetical questions that are accurate and that include all

of the claimant’s functional limitations. See Pendley v. Heckler, 767 F.2d 1561, 1563 (11th Cir.

1985). However, the ALJ is not required to include in the hypothetical question “each and every

symptom” of the claimant’s impairments, Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253,

1270 (11th Cir. 2007), or “findings . . . that the ALJ . . . properly rejected as unsupported,” Crawford,

363 F.3d at 1161.

Claimant essentially argues that based on the errors he outlines above regarding the ALJ’s

RFC determination, the ALJ’s hypothetical to the VE did not accurately account for all of

Claimant’s limitations as outlined in the evidence. Doc. No. 26, at 27–29. Thus, Claimant’s

second assignment of error is contingent on the success of his first. As discussed above, I find that

Claimant has failed to establish that the ALJ erred regarding the RFC determination. Consequently,

“the ALJ’s hypothetical question to the VE, which is consistent with the ALJ’s RFC determination,

properly accounted for Claimant’s functional limitations.” See Straka-Acton v. Comm’r of Soc.

Sec., No. 6:14-cv-630-Orl-GJK, 2015 WL 5734936, at *4 (M.D. Fla. Sept. 29, 2015); see also

Ybarra v. Comm’r of Soc. Sec., 658 F. App’x 538, 543 (11th Cir. 2016) (rejecting argument that the

ALJ’s hypothetical to the VE was defective “because the criticisms that [the claimant] aims at the

hypothetical question are identical to those leveled at the ALJ’s RFC, and, as discussed above, the

RFC is supported by substantial evidence”). Accordingly, the ALJ did not err by relying on the

testimony of the VE, see Straka-Acton, 2015 WL 5734936, at *4, and Claimant’s second assignment

of error is not well taken.8

C. Claimant’s Subjective Complaints of Pain.

A claimant may establish disability through his own testimony of pain or other subjective

symptoms. Dyer, 395 F.3d at 1210. A claimant seeking to establish disability through his or her

own testimony must show:

(1) evidence of an underlying medical condition; and (2) either (a) objective medical

evidence confirming the severity of the alleged pain; or (b) that the objectively

determined medical condition can reasonably be expected to give rise to the claimed

pain.

Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002). “If the ALJ decides not to credit a

claimant’s testimony as to her pain, he must articulate explicit and adequate reasons for doing so.”

Foote, 67 F.3d at 1561–62. The Court will not disturb a clearly articulated credibility finding that

is supported by substantial evidence. Id. at 1562.

If the ALJ determines that the claimant has a medically determinable impairment that could

reasonably produce the claimant’s alleged pain or other symptoms, the ALJ must then evaluate the

extent to which the intensity and persistence of those symptoms limit the claimant’s ability to work.

20 C.F.R. § 404.1529(c)(1). In doing so, the ALJ considers a variety of evidence, including, but

not limited to, the claimant’s history, the medical signs and laboratory findings, the claimant’s

statements, medical source opinions, and other evidence of how the pain affects the claimant’s daily

8 Claimant also appears to argue that, as it relates to Claimant’s sitting and standing limitations, the

“hypothetical posed to the [VE] did not contain the exact limitations as noted in the [RFC] determination.”

Doc. No. 26, at 28. However, as the Commissioner argues, the hypothetical to the VE and the ALJ’s RFC

determination were nearly identical in this regard. Compare R. 23 (RFC determination: “sit with normal

breaks for a total of about 6 hours in an 8-hour workday, and stand and/or walk with normal breaks for a total

of about 6 hours in an 8-hour workday), with R. 66 (hypothetical to VE: “sit with normal break for 6 out of

8 hours; stand and/or walk with normal breaks for 6 out of 8 hours”). Claimant has failed to demonstrate

that the RFC determination and the hypothetical to the VE differ in any material respects or that any error

resulted therefrom. See Doc. No. 26, at 28–29.

activities and ability to work. Id. § 404.1529(c)(1)–(3). Factors relevant to the ALJ’s

consideration regarding a claimant’s allegations of pain include: (1) daily activities; (2) the location,

duration, frequency, and intensity of pain and other symptoms; (3) precipitating and aggravating

factors; (4) the type, dosage, effectiveness, and side effects of medication; (5) treatment, other than

medication, the claimant receives for pain; (6) measures used for pain relief; and (7) other factors

pertaining to functional limitations and restrictions to pain. Id. § 404.1529(c)(3)(i)–(vii).

Here, Claimant argues that the ALJ failed to adequately assess his credibility and failed to

provide sufficient reasoning to support the determination that he was not credible. Doc. No. 26, at

33–34. Claimant points to the following credibility finding by the ALJ:

After careful consideration of the evidence, the undersigned finds that the claimant’s

medically determinable impairments could reasonably be expected to cause some of

the alleged symptoms; however, the claimant’s statements concerning the intensity,

persistence and limiting effects of these symptoms are not entirely consistent with

the medical evidence and other evidence in the record for the reasons explained in

this decision.

See R. 24.

As the Commissioner points out, however, Claimant essentially ignores the ALJ’s discussion

that follows this finding. In the decision, the ALJ details the medical evidence of record and the

findings therein, the opinions of medical professionals and state agency consultants, and Claimant’s

subjective complaints to those professionals. R. 24–26. The ALJ summarizes his findings

regarding Claimant’s credibility as follows:

Although the undersigned accepts that the claimant’s impairments would somewhat

erode his functional ability, the medical evidence of record does not support that he

is as limited as he alleges. In fact, the claimant’s significant activities of daily living,

such as ability to care for his own needs, maintain a home, engage in yardwork, and

even perform car repair, support that he would be able to perform a reduced range of

medium work. He has admittedly made improvement through treatment and admits

only using ibuprofen for his alleged pain. Objective findings throughout the

medical evidence shows that although he had some reduced range of motion in some

joints, he had a normal gait and essentially full strength in his upper and lower

bilateral extremities. Further, he does not require use of an assistive device and

admitted has no problems reading, writing, or managing finances, activities that one

would assume would likely be hindered by poor concentration caused by severe

chronic pain.....

R. 27. Thus, in the decision, the ALJ relied on several reasons to find Claimant’s subjective

complaints of pain less than fully credible, which included, among other findings: (1) lack of

support from the medical evidence of record; (2) Claimant’s activities of daily living; (3) medical

improvement; and (4) normal examination findings. See id. Claimant does not challenge any of

these findings by the ALJ, and therefore has waived that argument before this Court. Cf Crawford,

363 F.3d at 1161. Even if the argument were not waived, I find that the ALJ’s good cause reasons

to find Claimant’s subjective complaints less than credible are supported by substantial evidence.

Therefore, Claimant’s third assignment of error is unpersuasive.

V. CONCLUSION.

Based on the foregoing, it is ORDERED that:

1. The final decision of the Commissioner is AFFIRMED.

2. The Clerk of Court is DIRECTED to enter judgment in favor of the Commissioner

and CLOSE the case.

DONE and ORDERED in Orlando, Florida on July 20, 2020.

LESLIE R. HOFFMAN

UNITED STATES MAGISTRATE JUDGE

Copies furnished to:

Counsel of Record