# Ramallo v. Commissioner of Social Security

> District Court, M.D. Florida · March 15, 2021

URL: https://www.frixlaw.com/law-library/cases/10107099

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** March 15, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION

JANET RAMALLO,

Plaintiff,

v. Case No.: 2:19-cv-764-MRM

COMMISSIONER OF SOCIAL
SECURITY,

Defendant.
/
OPINION AND ORDER
Plaintiff Janet Ramallo filed a Complaint on October 22, 2019. (Doc. 1).
Plaintiff seeks judicial review of the final decision of the Commissioner of the Social
Security Administration (“SSA”) denying her claim for a period of disability and
disability insurance benefits. (Doc. 29 at 1-2). The Commissioner filed the transcript
of the administrative proceedings (hereinafter referred to as “Tr.” followed by the
appropriate page number), and the parties filed a joint memorandum detailing their
respective positions. (Doc. 29). For the reasons set forth herein, the decision of the
Commissioner is AFFIRMED pursuant to § 205(g) of the Social Security Act, 42
U.S.C. § 405(g).
I. Social Security Act Eligibility
The law defines disability as the inability to do any substantial gainful activity
by reason of any medically determinable physical or mental impairment that can be
expected to result in death or that has lasted or can be expected to last for a
continuous period of not less than twelve months. 42 U.S.C. §§ 416(i), 423(d)(1)(A),
1382c(a)(3)(A); 20 C.F.R. §§ 404.1505, 416.905. The impairment must be severe,
making the claimant unable to do her previous work or any other substantial gainful

activity that exists in the national economy. 42 U.S.C. §§ 423(d)(2), 1382c(a)(3); 20
C.F.R. §§ 404.1505 - 404.1511, 416.905 - 416.911. Plaintiff bears the burden of
persuasion through step four, while the burden shifts to the Commissioner at step
five. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987).

II. Procedural History
Plaintiff filed a claim for a period of disability and disability insurance benefits
on June 2, 2017. (Tr. at 15).1 Plaintiff asserted a disability onset date of January 27,
2009. (Id.). Plaintiff’s claim was denied at the initial level. (Id.). Plaintiff requested
an administrative hearing, held on September 6, 2018, before Administrative Law

Judge (“ALJ”) Ryan Johannes. (Id. at 33). The ALJ issued an unfavorable decision
on December 17, 2018. (Id. at 12). On June 13, 2019, the Appeals Council denied
Plaintiff’s request for review. (Id. at 1). Plaintiff then filed her Complaint with this
Court on October 22, 2019, and the parties consented to proceed before a United
States Magistrate Judge for all purposes. (Docs. 1, 15, 18). The matter is, therefore,

ripe.

1 The SSA revised the rules regarding the evaluation of medical evidence and
symptoms for claims filed on or after March 27, 2017. See Revisions to Rules
Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 5844-01, 5844 (Jan. 18,
2017). The new regulations apply in Plaintiff’s case because Plaintiff filed her claim
after March 27, 2017.
III. Summary of the Administrative Law Judge’s Decision
An ALJ must follow a five-step sequential evaluation process to determine if a

claimant has proven that she is disabled. Packer v. Comm’r of Soc. Sec., 542 F. App’x
890, 891 (11th Cir. 2013) (citing Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999)).
An ALJ must determine whether the claimant: (1) is performing substantial gainful
activity; (2) has a severe impairment; (3) has a severe impairment that meets or
equals an impairment specifically listed in 20 C.F.R. Part 404, Subpart P, Appendix

1; (4) can perform her past relevant work; and (5) can perform other work of the sort
found in the national economy. Phillips v. Barnhart, 357 F.3d 1232, 1237-40 (11th
Cir. 2004). The claimant has the burden of proof through step four and then the
burden shifts to the Commissioner at step five. Hines-Sharp v. Comm’r of Soc. Sec., 511
F. App’x 913, 915 n.2 (11th Cir. 2013).

The ALJ determined that Plaintiff met the insured status requirements of the
Social Security Act through December 31, 2016. (Tr. at 17). At step one of the
sequential evaluation, the ALJ found that, while Plaintiff alleges a disability onset
date of January 27, 2009, she engaged in substantial gainful activity from January 27,
2009 to June 30, 2009, and from July 1, 2011 to December 31, 2012. (Id. at 15, 17).

The ALJ also found that Plaintiff was not engaged in substantial gainful activity for
two periods of time while she was still insured: July 1, 2009 to June 30, 2011; and
January 1, 2013 to December 31, 2016. (Id. at 18). At step two, the ALJ determined
that Plaintiff has the following severe impairments: “fibromyalgia; mild cervical
degenerative disc disease and spondylosis; left sacroiliac joint arthropathy; lower
back pain; and right knee chondromalacia diagnosed in 2017 (20 CFR §
404.1520(c)).” (Id.). At step three, the ALJ determined that Plaintiff did not have an
impairment or combination of impairments that met or medically equaled the

severity of one of the listed impairments in 20 C.F.R. pt. 404, subpt. P, app. 1 (20
C.F.R. §§ 404.1520(d), 404.1525, and 404.1526). (Id.).
At step four, the ALJ found:
After careful consideration of the entire record, the
undersigned finds that, through the date last insured, the
claimant had the residual functional capacity to perform
light work as defined in 20 [C.F.R. §] 404.1567(b) except
she can occasionally climb stairs and ramps, but never climb
ladders and scaffolds. She can occasionally balance and
stoop crouch. The claimant can never kneel with her right
lower extremity. She can occasionally reach above head.
She should avoid concentrated exposure to extreme cold
and heat and vibrations, and all exposure to moving
mechanical parts and unprotected heights.

(Id. at 20). Additionally, based on the Vocational Expert’s (“VE”) testimony, the
ALJ determined that Plaintiff “was capable of performing [her] past relevant work as
a clinical counselor” stating that “[t]his work did not require the performance of
work-related activities precluded by [Plaintiff’s] residual functional capacity (20
[C.F.R. §] 404.1565).” (Id. at 25). The position of a clinical counselor (DOT
045.107-050) is sedentary in exertion and skilled with an SVP of 7. (Id.).
Because the ALJ found that Plaintiff could perform her past relevant work
through her date last insured, he did not make any findings for the fifth step of the
sequential evaluation process. Thus, the ALJ concluded that Plaintiff was not under
a disability from January 27, 2009, the alleged onset date, through December 31,
2016, the date last insured. (Id.).

IV. Standard of Review
The scope of this Court’s review is limited to determining whether the ALJ
applied the correct legal standard, McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir.
1988), and whether the findings are supported by substantial evidence, Richardson v.
Perales, 402 U.S. 389, 390 (1971). The Commissioner’s findings of fact are

conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial
evidence is more than a scintilla—i.e., the evidence must do more than merely create
a suspicion of the existence of a fact, and must include such relevant evidence as a
reasonable person would accept as adequate to support the conclusion. Foote v.
Chater, 67 F.3d 1553, 1560 (11th Cir. 1995) (citing Walden v. Schweiker, 672 F.2d 835,

838 (11th Cir. 1982); Richardson, 402 U.S. at 401).
Where the Commissioner’s decision is supported by substantial evidence, the
district court will affirm, even if the reviewer would have reached a contrary result as
finder of fact, and even if the reviewer finds that “the evidence preponderates
against” the Commissioner’s decision. Edwards v. Sullivan, 937 F.2d 580, 584 n.3

(11th Cir. 1991); Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991). The district
court must view the evidence as a whole, taking into account evidence favorable as
well as unfavorable to the decision. Foote, 67 F.3d at 1560; accord Lowery v. Sullivan,
979 F.2d 835, 837 (11th Cir. 1992) (court must scrutinize the entire record to
determine reasonableness of factual findings).
V. Analysis

On appeal, Plaintiff raises four issues. As stated by the parties, the issues are:
1. Whether the ALJ properly weighed [the] treating providers’
opinions;

2. Whether the ALJ erred in failing to conduct the special psychiatric
review technique . . . to assess Plaintiff’s memory and
concentration difficulties;

3. Whether the ALJ failed to properly develop the record; and

4. Whether the ALJ properly assessed the impact of Plaintiff’s
fibromyalgia.

(Doc. 29 at 17, 31, 37, 40). The Court separately addresses each issue below.
A. The ALJ Properly Assessed the Medical Evidence of Record.

Plaintiff first argues that the ALJ did not properly weigh the opinions of
Plaintiff’s treating providers. (Id. at 17). Specifically, Plaintiff takes issue with the
absence of ARNP Laura Holland and ANRP Souza’s opinions from the ALJ’s
decision. (Id. (citing Tr. at 831, 922)). Plaintiff argues that, under 20 C.F.R. §
404.1527, the ALJ further erred by failing to explain the precise weight that he gave
to each ARNP’s opinion. (Id. at 17-18). As explained by Plaintiff, this requirement
allows subsequent reviewers of the ALJ’s decision to follow the ALJ’s reasoning and
determine whether his decision is supported by substantial evidence. (Id. at 18).
While Plaintiff does correctly assert that this regulation only applies to disability
insurance benefits applications before March 27, 2017, she incorrectly asserts that she
filed her application before March 27, 2017. (Id. at 17).
In response, the Commissioner argues that Plaintiff’s application was filed on

June 2, 2017 – i.e., after March 27, 2017 – so the new regulations apply to her case.
(Id. at 24, 29). In arguing that the new regulations apply, the Commissioner claims
that the ALJ was not required to assign a specific weight to any of the medical
opinions issued by Plaintiff’s treating sources, including ARNP Holland and ARNP

Souza. (Id. at 24-29).
Additionally, the Commissioner asserts that, even though the ALJ is not
required to assign weight to the ARNPs’ opinions, any analysis of their opinions
regarding Plaintiff’s ability to work is irrelevant. (Id. at 30). In support, the
Commissioner states that ARNP Holland issued her opinion authorizing Plaintiff to

engage in part-time work on February 22, 2012, a date in the middle of a time period
when the ALJ determined that Plaintiff was engaged in substantial gainful activity.
(Id. at 30). The Commissioner also argues that ARNP Souza’s opinion was issued
on April 4, 2018, fifteen months after Plaintiff’s date last insured, making it irrelevant
to determining whether Plaintiff was disabled prior to December 31, 2016. (Id.).

In March 2017, the SSA implemented new regulations regarding the
evaluation of medical evidence for claims, like Plaintiff’s, filed on or after March 27,
2017. See Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed.
Reg. 5844-01, 5844 (Jan. 18, 2017); 20 C.F.R. § 404.1520c. Under these new
regulations, the Commissioner “will not defer or give any specific evidentiary
weight, including controlling weight, to any medical opinion(s) . . . including those
from [a claimant’s] medical sources.” 20 C.F.R. § 404.1520c(a).
Under the new regulations, an ALJ does not have to articulate how he

“considered each medical opinion or prior administrative medical finding from one
medical source individually.” 20 C.F.R. § 404.1520c(b)(1). “Other than articulating
his consideration of the supportability and consistency factors, the Commissioner is
not required to discuss or explain how he considered any other factor in determining
persuasiveness.” Freyhagen v. Comm’r of Soc. Sec. Admin., No. 3:18-cv-1108-J-MCR,

2019 WL 4686800, at *2 (M.D. Fla. Sep. 26, 2019) (internal citation omitted).
Furthermore, “nothing in the relevant regulations requires ALJs to apply an all-or-
nothing approach when assessing a medical source’s opinions.” Hand v. Comm’r of
Soc. Sec., 786 F. App’x 220, 225 (11th Cir. 2019). Instead, the ALJ’s RFC

determination must merely be supported by substantial evidence. 42 U.S.C. § 405(g).
Importantly, the “new regulations are not inconsistent with Eleventh Circuit
precedent holding that ‘the ALJ may reject any medical opinion if the evidence
supports a contrary finding.’” Freyhagen, 2019 WL 4686800, at *2 (citing Wainwright
v. Comm’r of Soc. Sec. Admin., No. 6-15638, 2007 WL 708971, at *2 (11th Cir. Mar. 9,

2007)). Nevertheless, the ALJ “is required to consider the opinions of non-
examining state agency medical and psychological consultants because they are
highly qualified physicians and psychologists, who are also experts in Social Security
disability evaluation.” Milner v. Barnhart, 275 F. App’x 947, 948 (11th Cir. 2008); see
also SSR 96-6p.
Accordingly, the Court agrees with the Commissioner, as Plaintiff’s
application was filed on June 21, 2017 – i.e., after March 27, 2017 – the new
regulations apply to this matter. The Court finds that under the new regulations, the

ALJ was not required to assign a specific weight to ARNP Holland and ARNP
Souza’s opinions. See 20 C.F.R. § 404.1520c(a). The ALJ’s statement that he
considered the entire medical record and his assignment of weight to the opinion of
the State Agency review consultant was sufficient to satisfy his obligations for
examining Plaintiff’s medical sources. (See Tr. at 24-25); see also Freyhagen, 2019 WL

4686800, at *2. The Court finds Plaintiff’s arguments on this issue unpersuasive as
they are based regulations and case law that are not applicable to her case. (Doc. 29
at 17-22). As such, the Court finds that the ALJ did not err by failing to assign an
exact weight or specifically discuss the opinions of ARNP Holland and ARNP

Souza. See 20 C.F.R. § 404.1520c(a).
B. The ALJ Did Not Err by Failing to Conduct the Special Psychiatric
Review Technique.

Plaintiff’s second argument is that the ALJ was required to complete a special
psychiatric review technique form (“PRTF”) to evaluate the severity of Plaintiff’s
alleged mental impairments: (1) depression; (2) memory loss; and (3) difficulty
concentrating. (Doc. 29 at 31). Plaintiff identifies multiple locations in the record
where her alleged depression is referenced. (Id. at 31-32 (citing Tr. at 65, 67-68, 80,
457, 593, 750)). Additionally, at the hearing before the ALJ, Plaintiff testified about
her difficulty concentrating. (Id. (citing Tr. at 47-48, 52, 53)). Plaintiff argues that, in
light of these references to mental impairments, the ALJ was required to complete a
PRTF and incorporate its mode of analysis into his decision. (Id. at 33-34 (citing
Moore v. Barnhart, 405 F.3d 1208, 1214 (11th Cir. 2005); Huddleston v. Astrue, No. CA

07-0757-C, 2008 WL 2225697 (S.D. Ala. 2008); Doss v. Astrue, No. CA 07-0375-C,
2007 WL 4570551 (S.D. Ala. 2007)).
Plaintiff contends that the ALJ’s failure to complete a PRTF to assess her
memory loss and concentration difficulties was a harmful error given that Plaintiff’s

past relevant work as a clinical counselor carries an SVP level of 7 and requires
application of logical and scientific thinking to define and solve complex problems.
(Id. at 34 (citing Doc. 23-1 at 5-6)). Plaintiff further claims that had her RFC been
properly limited to detailed tasks instead of complex tasks, the VE would have found
her unable to perform her past relevant work. (Id. at 35). Accordingly, Plaintiff

alleges that the ALJ’s decision was not supported by substantial evidence. (Id.).
The Commissioner argues, however, that the ALJ properly evaluated the
evidence of Plaintiff’s mental impairments and correctly concluded that there was
insufficient evidence to substantiate the presence of any mental disorders. (Id.). The
Commissioner alleges that the ALJ specifically identified that, while depression was

occasionally mentioned in the record, Plaintiff was never actually diagnosed with
depression or any other mental impairments. (Id. (citing Tr. at 18)). Moreover, the
Commissioner argues that Plaintiff’s allegations regarding the existence of her
memory loss and concentration difficulties are not sufficient to establish a medically
determinable impairment, let alone a severe impairment, because there is no medical
evidence in the record supporting Plaintiff’s claims. (Id. at 36 (citing 20 C.F.R. §
404.1529(b) (“Your symptoms . . . will not be found to affect your ability to do basic
work activities unless medical signs or laboratory findings show that a medically

determinable [impairment] is present.”))).
Mental impairments must be established by objective medical evidence from
an acceptable medical source. 20 C.F.R. § 404.1521. When evaluating mental
impairments, the regulations require an ALJ to use the “special technique” dictated
by the PRTF. Moore v. Barnhart, 405 F.3d 1208, 1213-14 (11th Cir. 2005); 20 C.F.R.

§ 404.1520a(a). This technique requires that the ALJ assess Plaintiff’s mental
impairments using the following four broad functional areas (known as the
Paragraph B criteria): (1) understanding, remembering, or applying information; (2)
interacting with others; (3) concentrating, persisting, or maintaining pace; and (4)

adapting or managing oneself. 20 C.F.R. § 404.1520a(c)(3). An ALJ is required to
incorporate the results of the PRTF into the findings and conclusions in his decision.
Moore, 405 F.3d 1208, 1213-14; 20 C.F.R. § 404.1520a(e)(4). Moreover, remand is
required when two factors are present: (1) a claimant has presented a “colorable
claim” of mental impairment; and (2) an ALJ has failed to apply the special

technique. See id. at 1214.
1. Whether the ALJ erred when he chose not to complete a PRTF to
assess Plaintiff’s memory loss and difficulty concentrating.

The Court is not persuaded by Plaintiff’s argument that she suffers from a
medically determinable impairment related to memory loss or concentration
difficulties. As evidence of her memory loss and concentration difficulties, Plaintiff
cites to her comments during the hearing before the ALJ and the notes created by
state agency decision maker Simone Williams, who recorded Plaintiff’s alleged

impairments on June 16, 2017. (Doc. 29 at 31-32 (citing Tr. at 47-48, 52-53, 65-66)).
The Court finds that unsubstantiated complaints made by a claimant roughly
six months after the date last insured are unpersuasive for determining the existence
of a mental impairment. See 20 C.F.R. § 404.1521. Rather, the ALJ was correct
when he stated that “[t]here was no actual [diagnosis] of depression or any other

mental health [diagnosis] rendered.” (Tr. at 18 (citing Tr. at 750)). Indeed, upon
reviewing the record, the Court finds that the only evidence of memory loss or
difficulty concentrating is: (1) a letter written by Plaintiff on June 14, 2017, in
response to a Supplemental Pain Questionnaire (Tr. at 382); (2) Plaintiff’s own
statements during an initial call on June 16, 2017, with Simone Williams (id. at 65-

66); and (3) Plaintiff’s testimony during the hearing before the ALJ on September 6,
2018 (id. at 47-48, 52-53). Moreover, the only mention of memory loss in Plaintiff’s
medical records occurred on July 29, 2009, roughly six months after the onset of
Plaintiff’s disability, when Dr. Jose Campoamor found that “Patient denies memory

loss, depression, insomnia, anxiety, and nervousness.” (Id. at 210, 534, 635, 1102).
In light of the complete absence of evidence from acceptable medical sources
in the record, the Court finds that the medical evidence of record does not establish
Plaintiff’s alleged mental impairment related to memory loss or difficulty
concentrating. Accordingly, the Commissioner did not err when he chose not to
complete a PRTF to assess memory loss or difficulty concentrating. 20 C.F.R. §
404.1521 (“[A] mental impairment must be established by objective medical evidence
from an acceptable medical source.”); see also Williams v. Comm’r of Soc. Sec., No.

2:16-cv-234-FtM-MRM, 2017 WL 2115985, at *7-8 (M.D. Fla. May 16, 2017).
2. Whether the ALJ erred when he chose not to complete a PRTF to
assess Plaintiff’s depression.

Next, to support her contention that the ALJ was required to complete a
PRTF to assess the severity of her depression, Plaintiff cites to state agency
consultant Byron Pack, Psy.D., who made conflicting findings while conducting a
disability determination. (Doc. 29 at 31 (citing Tr. at 80)). His first finding stated
that Plaintiff suffers from depressive, bipolar, and related disorders at a severity level
of non-severe. (Tr. at 80). Bryon Pack’s second finding, made while he completed a
Psychiatric Review Technique, stated that “[t]here is insufficient evidence to
substantiate the presence of [depressive, bipolar, and related disorders].” (Id.). He
went on to acknowledge that there is no actual diagnosis of depression anywhere in

the record and there is insufficient evidence to adjudicate Plaintiff’s claim of
depression. (Id. at 81).
The Court finds that the ALJ correctly concluded that there was insufficient
evidence in the record to support the presence of a medically determinable mental
health impairment, including depression. (See id at 18). Accordingly, given the lack

of evidence in the record, the Court finds that the record does not establish Plaintiff’s
alleged mental impairment related to depression.
In reaching this conclusion, the Court considered the relevant evidence of
depression in the record, including: (1) Dr. Hood’s notation of a “history of
depression” on May 18, 2015 (id. at 593); (2) Simone Williams’ record of Plaintiff’s

statements, which indicate that Plaintiff took medication for depression in 2001 and
is currently on Cymbalta (id. at 65); (3) several review of systems findings that note
“depression” as present (see id. at 700, 728, 750, 853, 964); and (4) Plaintiff’s
statement during the hearing that she was previously diagnosed with depression but

believes that it has been stabilized by her medication (id. at 45). Notably absent from
the record is a diagnosis of depression or analysis of the effects of Plaintiff’s alleged
depression. Furthermore, there is no history of specialized mental health treatment
during the relevant time period and no diagnostic findings of a mental impairment.
While Byron Pack found that Plaintiff suffered from a non-severe medically

determinable impairment of depression, he also found that there was insufficient
evidence to substantiate the presence of the disorder where, as here, there is no
diagnosis of depression in the record and insufficient analysis of the impairment. (Id.
at 80). Additionally, Candace Mihm, Ph.D., the second state agency mental health
review consultant, found that there was insufficient evidence in the record to analyze

the presence of a depression disorder. (Id. at 68).
At most, the evidence in the record supports the contention that Plaintiff
historically suffered from depression and currently controls it with medication. Such
a finding and its associated evidence is insufficient to establish a “colorable claim” of
mental impairment during the relevant time period. See Sesberry v. Astrue, No. 3:08-
cv-989-J-TEM, 2010 WL 653890, at *3-5 (M.D. Fla. February 18, 2010) (finding that
a plaintiff had not presented a colorable claim of mental impairment where his
medical record included two notations of depression, a referral to a psychiatrist, and

a prescription for an antidepressant); Dixon v. Astrue, No. 5:09-cv-320-RS-EMT, 2010
WL 4942141, at *8 (N.D. Fla. Oct. 26, 2010), report and recommendation adopted, No.
5:09-cv-320-RS-EMT, 2010 WL 4929045 (N.D. Fla. Nov. 30, 2010) (holding that a
plaintiff failed to present a colorable claim of mental impairment even when the
plaintiff’s treating physician diagnosed anxiety and prescribed medication for the

diagnosis).
Furthermore, the Court finds that, even if Plaintiff presented a colorable claim
of mental impairment due to depression, the ALJ’s error in failing to complete a
PRTF was harmless. See Diorio v. Heckler, 721 F.2d 726, 728 (11th Cir.1983) (finding

that the ALJ’s decision will stand when an incorrect application of the regulations
results in “harmless error,” because the correct application would not contradict the
ALJ’s ultimate findings). Rather than allege that her depression affected her ability
to do basic work activities, Plaintiff stated that her depression is “stable” and
controlled by medication. (See Tr. at 45, 65). Plaintiff’s allegations that her mental

impairments affect her ability to work all relate to her memory and concentration,
evidence of which is absent from the record.
Moreover, the Court finds that, had the ALJ applied the PRTF, Plaintiff’s
depression still would have been found to be non-severe. (Id. at 18). The ALJ
already found Plaintiff’s depression to be a non-severe impairment, noting that her
depression did not preclude her from participating in highly functional activities.
(Id.). He also noted, as the state agency mental health review consultants did, that
the record is devoid of evidence to support the existence to support the presence of a

severe mental health impairment. (Id.). Thus, had the ALJ applied the PRTF,
Plaintiff’s depression would have been found to be non-severe, which is consistent
with the finding that the ALJ already made on the record. (Id.).
Thus, the ALJ’s failure to complete a PRTF in this case is harmless. See

Diorio, 721 F.2d at 728; Dixon v. Astrue, No. 5:09-cv-320-RS-EMT, 2010 WL
4942141, at *10 (N.D. Fla. Oct. 26, 2010), report and recommendation adopted, No.
5:09-cv-320-RS-EMT, 2010 WL 4929045 (N.D. Fla. Nov. 30, 2010) (finding that an
ALJ’s failure to apply the special technique was harmless where the plaintiff had
been diagnosed with anxiety, but the ALJ would have characterized it as non-severe

at step two); see also Rabbers v. Comm’r of Soc. Sec. Admin., 582 F.3d 647, 648, 655 (6th
Cir. 2009) (harmless error found where the ALJ failed to make required findings
regarding severity of a mental impairment, as the error did not deprive the plaintiff of
a substantial procedural right; nor did it prejudice him on the merits because the
record indicated that his bipolar disorder was not severe enough to render him

disabled). Accordingly, Plaintiff is not entitled to relief on this issue.
C. The ALJ Properly Developed the Record.

Plaintiff’s third argument is that the ALJ failed to properly develop the record
when he chose not to subpoena Plaintiff’s medical records from Naples Urgent Care
and Dr. John White. (Doc. 29 at 37). On August 14, 2018, Plaintiff requested that
the ALJ issue subpoenas for the outstanding medical records from Naples Urgent
Care and Dr. John White. (Tr. at 431). Then, during the hearing, the ALJ and
Plaintiff’s counsel had the following exchange:

ALJ: Have you had an opportunity to review the record?

Counsel: I have.

ALJ: Do you have any new evidence that is related to the
claimant’s impairments?

Counsel: I don’t, Judge. The prior letter went in on the
14th of August, requesting a subpoena for a couple of
sources that are giving us some difficulty.

ALJ: Would the record remain open?

Counsel: Yes, please.

. . .

Counsel: Oh, how long are we holding the record on that,
Judge?

ALJ: We’ll start with two weeks.

(Tr. at 34, 59). Despite Plaintiff’s request that the ALJ issue a subpoena, the ALJ
chose not to and issued his opinion on December 17, 2018, finding Plaintiff not
disabled. (See Tr. at 15-29).
Plaintiff argues that her subpoena request for records was sent to the ALJ
twenty-three days before the hearing, well within the timeframe required by 20
C.F.R. § 404.332(b). (Id. (citing Tr. at 431)). As such, Plaintiff argues that the ALJ
had a duty to issue those subpoenas pursuant to a “regulatory requirement” and his
duty to develop the record. (Id. at 38). Plaintiff asserts that the ALJ’s duty to
develop a full and fair record exists even when a plaintiff is represented by counsel.
(Id. (citing Sims v. Apfel, 530 U.S. 103 (2000); Graham v. Apfel, 129 F.3d 1420, 1423
(11th Cir. 1997); Brown v. Shalala, 44 F.3d 931, 934 (11th Cir. 1995))). Specifically,

Plaintiff relies on Rease v. Barnhart, 422 F. Supp. 2d 1334 (N.D. Ga. 2006), where the
court held that the ALJ was responsible for making “every reasonable effort to
develop the complaint’s complete medical history for at least the twelve months
preceding the month in which the claimant filed her application and, if applicable,

for the twelve month period prior to the month in which he was last insured.” (Id.
(citing Rease, 422 F. Supp. 2d at 1372 (citing 20 C.F.R. § 404.1512(d) (2006)))).
For his part, the Commissioner argues that 20 C.F.R. § 404.950(d)(1) states
that an ALJ “may” issue a subpoena for evidence and, as such, the ALJ did not err
by exercising his discretion to not subpoena Plaintiff’s additional medical records.

(Doc. 29 at 39). Additionally, the Commissioner notes that the ALJ allowed the
record to stay open for two weeks to allow Plaintiff to obtain any necessary medical
records. (Id. (citing Tr. at 34)). Finally, the Commissioner asserts that Plaintiff failed
to show how she was prejudiced by the ALJ’s failure to subpoena records from
Naples Urgent Care and Dr. John White. (Id. at 40). Because the record contains

“sufficient evidence” for the ALJ to make an “informed decision,” the
Commissioner contends that Plaintiff was not prejudiced and the ALJ’s findings are
supported by substantial evidence. (Id. (citing Ingram v. Comm’r of Soc. Sec. Admin.,
496 F.3d 1253, 1269 (11th Cir. 2007); Graham, 129 F.3d at 1423)).
Even though Social Security proceedings are inquisitorial rather than
adversarial in nature, claimants have the burden of establishing their eligibility for
benefits. Ingram, 496 F.3d at 1269; 20 C.F.R. §§ 404.1512(a), 416.912(a). During

the administrative process, therefore, a claimant must inform the SSA about or
submit all evidence known to the claimant relating to whether the claimant is
disabled. 20 C.F.R. §§ 404.1512(c), 416.912(c). While the claimant must provide
medical evidence proving she is disabled, the ALJ has a basic obligation to develop a
full and fair record, an obligation that attaches even when the claimant is represented

by counsel. Brown v. Shalala, 44 F.3d 931, 934 (11th Cir. 1995).
When the plaintiff demonstrates that the record reveals evidentiary gaps which
result in unfairness or “clear prejudice,” remand is warranted. Id. at 935; Henry v.
Comm’r of Soc. Sec., 802 F.3d 1264, 1267 (11th Cir. 2015) (“Remand for further

factual development of the record before the ALJ is appropriate where the record
reveals evidentiary gaps which result in unfairness or clear prejudice.”) (quotation
and citation omitted); Graham v. Apfel, 129 F.3d 1420, 1423 (11th Cir. 1997)
(“However, there must be a showing of prejudice before it is found that the
claimant’s right to due process has been violated to such a degree that the case must

be remanded to the [Commissioner] for further development of the record.” (Citation
omitted)).
If the evidence is consistent but the Commissioner does not have sufficient
evidence to determine whether a claimant is disabled, or, if after weighing the
evidence, the Commissioner determines that a conclusion cannot be reached about
whether the claimant is disabled, the Commissioner will determine the best way to
resolve the inconsistency or insufficiency, including re-contacting a treating
physician or medical source or asking the claimant to undergo a consultative

examination. 20 C.F.R. §§ 404.1520b(c)(1), (3), 416.920b(c)(1), (3). Alternatively,
an ALJ may issue subpoenas for the production of records at the request of a party
when it is “reasonably necessary for the full presentation of the case.” 20 C.F.R. §
404.950(d)(2). The party’s written request for a subpoena must “state the important
facts that the . . . document is expected to prove and indicate why these facts could

not be proven without issuing a subpoena.” Id.
To begin, the Court finds that Plaintiff’s August 14, 2018 subpoena request did
not “state the important facts that the [documents were] expected to prove [or]
indicate why these facts could not be proven without issuing a subpoena.” 20 C.F.R.
§§ 404.950(d)(2), 416.1450(d)(2). In failing to do so, Plaintiff did not provide the

ALJ with a sufficient justification to subpoena the requested documents.
Accordingly, the decision on whether to issue the subpoenas was within the ALJ’s
discretion. See 20 C.F.R. § 404.950(d)(1).
Moreover, Plaintiff neglected to provide any argument, whether in her

subpoena request to the ALJ or in her brief to this Court, as to how the ALJ’s failure
to consider records from Naples Urgent Care and Dr. John White resulted in an
evidentiary gap or prejudice to her. See Henry, 802 F.3d at 1267 (“Remand for
further factual development of the record before the ALJ is appropriate where the
record reveals evidentiary gaps which result in unfairness or clear prejudice.”
(Quotation and citation omitted)).
Given that Plaintiff failed to establish what, if any, specific evidence from

Naples Urgent Care or Dr. John White exists and shows that she is disabled, she
failed to meet her burden of establishing an evidentiary gap or prejudice. Merely
speculating that additional development of the record will support Plaintiff does not
satisfy Plaintiff’s burden and, therefore, remand is not warranted on this issue. See
Sarria v. Comm’r of Soc. Sec., 579 F. App’x 722, 724 (11th Cir. 2014); Palencia v. Saul,

No. 8:19-cv-1062-T-AEP, 2020 WL 5742981, at *4 (M.D. Fla. Sept. 25, 2020).
Furthermore, Plaintiff fails to allege the specific impairments that the Naples
Urgent Care and Dr. John White records would support. As such, Plaintiff has not
shown the existence of an evidentiary gap and she failed to meet her burden to show

that she was prejudiced by the ALJ’s decision not to issue a subpoena. See Mosley v.
Acting Comm’r of Soc. Sec. Admin., 633 F. App’x 739, 742 (11th Cir. 2015) (quoting
Brown v. Shalala, 44 F.3d 931, 935 (11th Cir. 1995)).
Finally, the Court finds that Plaintiff’s reliance on Rease is misplaced because
the Rease court found that the records the plaintiff asked the ALJ to subpoena were

necessary to the plaintiff’s case. Rease, 422 F. Supp. 2d at 1372. Here, Plaintiff made
no such showing of “necessity” and, furthermore, she failed to make any persuasive
argument that the ALJ’s omission of the records of Naples Urgent Care and Dr.
John White prejudiced her case. (See Doc. 29 at 37-39; see also Tr. at 431-432). Thus,
the Court finds that remand is unwarranted.
D. The ALJ Properly Assessed the Impact of Plaintiff’s Fibromyalgia.

Lastly, Plaintiff argues that the ALJ failed to properly assess the effects of
Plaintiff’s fibromyalgia when he did not assess the factors listed in Social Security
Ruling (“SSR”) 12-2p, which states in relevant part:
Once an MDI is established, we then evaluate the intensity
and persistence of the person’s pain or any other symptoms
and determine the extent to which the symptoms limit the
person’s capacity for work. If objective medical evidence
does not substantiate the person’s statements about the
intensity, persistence, and functionally limiting effects of
symptoms, we consider all of the evidence in the case
record, including the person’s daily activities, medications
or other treatments the person uses, or has used, to alleviate
symptoms; the nature and frequency of the person’s
attempts to obtain medical treatment for symptoms; and
statements by other people about the person’s symptoms.

Soc. Sec. Ruling, SSR 12-2p; Titles II & XVI: Evaluation of Fibromyalgia, SSR 12-2p
(S.S.A. July 25, 2012). Specifically, Plaintiff argues that, in lieu of assessing
Plaintiff’s daily activities, Plaintiff’s medications, the nature and frequency of
Plaintiff’s attempts to obtain medical treatment for symptoms, and any statements by
other people about Plaintiff’s symptoms, the ALJ engaged in “‘sit-and-squirm’
jurisprudence, noting that Plaintiff ‘sat through the hearing without apparent
distress.’” (Doc. 29 at 42 (citing Tr. at 24)).
Plaintiff argues that if the ALJ properly limited her to a range of sedentary
work and found her unable to perform her past relevant work, she would have been
found disabled based on the Medical-Vocational Guidelines. Plaintiff cites to
Eleventh Circuit precedent for the propositions that: (1) an ALJ cannot rely on a
“lack of objective findings standing alone” to justify discounting a plaintiff’s alleged
symptoms from fibromyalgia, (id. at 43 (citing Somogy v. Comm’r of Soc. Sec., 366 F.
App’x 56, 63 (11th Cir. 2010))); and (2) an ALJ cannot rely on an absence of records

and conservative treatment to disregard a plaintiff’s described symptoms of
fibromyalgia, (id. (citing Brown-Gaudet-Evans v. Comm’r of Soc. Sec., 673 F. App’x 902,
906 (11th Cir. 2016))). In reliance on Eleventh Circuit case law, Plaintiff argues that
the ALJ did not adequately explain why he failed to credit Plaintiff’s testimony as to
her pain and, as a result, he failed to include appropriate limitations in her RFC. (Id.

at 44).
In response, the Commissioner asserts that the ALJ included fibromyalgia as
one of Plaintiff’s severe impairments at step two (id. (citing Tr. at 18)), and a
diagnosis of fibromyalgia alone does not support the argument that the ALJ should

have imposed more restrictive limitations on Plaintiff’s RFC, (id. (citing Tr. at 18-25;
Moore v. Barnhart, 405 F.3d 1208, 1213 n.6 (11th Cir. 2005))). The Commissioner
also argues that Plaintiff failed to show that her fibromyalgia supports greater
limitations than those found by the ALJ. (Id. at 45 (citing 20 C.F.R. §§ 404.1505(a),
404.1509; Barnhart v. Walton, 535 U.S. 212, 217 (2002))). To support the ALJ’s

findings, the Commissioner points to the medical records that show an improvement
in Plaintiff’s symptoms due to medication, (id. (citing Tr. at 229, 556, 591, 611,
843)), and Plaintiff’s own statements that she drives and engages in light exercise, (id.
(citing Tr. at 585, 626, 688, 749, 753; 20 C.F.R. § 404.1529(c); SSR 16-3p, 81 Fed.
Reg. 14,166 (Mar. 16, 2016); Wilson, 284 F.3d at 1225-26)). The Commissioner
asserts that substantial evidence supports the ALJ’s evaluation of Plaintiff’s
subjective statements and, in turn, the ALJ’s assessment of Plaintiff’s RFC. (Id. at

46).
1. Whether the ALJ properly assessed the effects of fibromyalgia
while determining Plaintiff’s RFC.

The Court acknowledges that fibromyalgia has been treated differently than
other diseases by the Eleventh Circuit. Fibromyalgia is a unique disease and “often
lacks medical or laboratory signs, and is generally diagnosed mostly on an
individual’s described symptoms.” Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir.
2005). The Court also acknowledges that credibility determinations are the province
of the ALJ. Id. at 1212 (citing Wilson v. Heckler, 734 F.2d 513, 517 (11th Cir. 1984)).
In this case, the ALJ considered the entire record, not just the objective
medical evidence when evaluating Plaintiff’s subjective statements. (Tr. at 20-23).
The ALJ considered Plaintiff’s subjective statements, reviewed the medical evidence

of record, and considered Plaintiff’s daily activities to determine that Plaintiff’s RFC
allowed her to perform light work. (Id. at 19-23). The Court finds that the ALJ did
not err in his consideration of Plaintiff’s subjective statements and his determination
that Plaintiff could perform light work during the relevant time period is supported
by substantial evidence.

Plaintiff’s argument that the ALJ failed to comply with SSR 12-2p is
unpersuasive. To begin, the ALJ specifically stated that he considered the ruling
when he determined that Plaintiff’s fibromyalgia was not only a medically
determinable impairment, but also a severe impairment. (Id. at 18-19). Additionally,
during the ALJ’s determination of Plaintiff’s RFC, he noted that she was diagnosed

with fibromyalgia in 2009, that it was treated with medications, that she does not use
assistive devices, that she helps with some household chores, that she grocery shops,
and that she uses the computer for over three hours a day. (Id. at 20). The ALJ also
notes that Plaintiff was seen for fibromyalgia on April 28, 2010, had labs taken on
November 20, 2009, and failed to have repeat labs taken as recommended. (Id. at 21

(citing Tr. at 605-606)). He took note of records on February 22, 2012, that indicate
Plaintiff presented for a check up on her fibromyalgia. (Id. at 22 (citing Tr. at 983)).
Additionally, the ALJ noted Plaintiff’s fibromyalgia follow up on March 10, 2016,
which describes the medications taken by Plaintiff and indicates that Plaintiff

engages in “light exercises” and “drives.” (Id. (citing Tr. at 761-763)). The evidence
of record cited by the ALJ clearly supports his RFC determination.
Moreover, the Court finds Plaintiff’s reliance on Somogy v. Comm’r of Soc. Sec.,
366 F. App’x 56, 63 (11th Cir. 2010) and Brown-Gaudet-Evans v. Comm’r of Soc. Sec.,
673 F. App’x 902, 906 (11th Cir. 2016) unpersuasive. Unlike the situation in Somogy,

where the ALJ rejected a treating physician’s opinions based on a lack of objective
findings, the ALJ here considered Plaintiff’s treatment history, the reported
effectiveness of her medications, and her functional activity levels during the relevant
time period. (Tr. at 19-24 (citing Tr. at 605-606, 761-763, 983)). Similarly, Brown-
Gaudet-Evans is inapplicable because the ALJ here did not exclusively rely on an
absence of records and evidence of conservative treatment, but on multiple different
factors to determine that Plaintiff could perform light work. (Id.). Moreover, the
ALJ here noted the inconsistencies between Plaintiff’s claims of disability and

Plaintiff’s diverse functional abilities. (Id. at 24). Specifically, the ALJ noted
Plaintiff could perform light work considering her ability to drive, grocery shop, use
the computer for approximately three hours a day, and work on completing a course
to earn her real estate license. (Id.).

Accordingly, the Court finds that the ALJ complied with SSR 12-2p and his
RFC determination is supported by substantial evidence of record.
2. Whether the ALJ improperly applied “sit and squirm”
jurisprudence.

The concept of “sit and squirm” jurisprudence denotes that an ALJ’s denial of
a claim is based on the claimant’s failure to exhibit certain traits that the ALJ has
subjectively determined would exist if the claimant were truly disabled. Wood v.
Berryhill, No. 4:15-cv-1248-LSC, 2017 WL 1196951, at *12 (N.D. Ala. Mar. 31,
2017) (citing Freeman v. Schweiker, 681 F.2d 727, at 731 (11th Cir. 1982)). Even
though “sit and squirm” jurisprudence is prohibited, an ALJ is permitted to consider
a claimant’s appearance and demeanor at a hearing. Id. (citing Macia v. Bowen, 829
F.2d 1009, 1012 (11th Cir. 1987); Norris v. Heckler, 760 F.2d 1154, 1157-58 (11th Cir.
1985)); see also 20 C.F.R. § 416.929(c)(3)(vii), (c)(4); SSR 96-7p, 1996 WL 374186, at

*5, superseded by SSR 16-3p.
In accordance with Eleventh Circuit case law and SSR 96-7p, the ALJ
properly considered Plaintiff’s demeanor and disposition at the hearing. The ALJ
observed that Plaintiff “sat through the hearing without apparent distress and she

responded well to all questions.” (Tr. at 24). The ALJ then mentioned that Plaintiff
“has performed a generally normal range of functional abilities, [including: (1)
periods of work activity; (2) managing her own medications; (3) not using an
assistive device; (4) completing meal prep and grocery shopping; and (5) driving].”
(Tr. at 24). Clearly, the ALJ’s statement that Plaintiff sat through the hearing does

not consist of improper “sit and squirm” jurisprudence. See Freeman, 681 F.2d at
731. The Court finds that the ALJ did not err in observing Plaintiff’s demeanor at
the hearing.
Accordingly, the Court finds that substantial evidence supports the ALJ’s
evaluation of Plaintiff’s subjective statements and, in turn, the ALJ’s assessment of

Plaintiff’s RFC.
VI. Conclusion
Upon consideration of the parties’ submissions and the administrative record,
the Court finds that substantial evidence supports the ALJ’s decision and the

decision was decided upon proper legal standards.
Accordingly, the Court ORDERS that the decision of the Commissioner ts
AFFIRMED pursuant to sentence four of 42 U.S.C. § 405(g). The Clerk of Court is
directed to enter judgment accordingly, terminate any pending motions and
deadlines, and close the case.
DONE AND ORDERED in Fort Myers, Florida on March 15, 2021.

Mac R. MA
United States Magistrate Judge

Copies furnished to:
Counsel of Record
Unrepresented Parties

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10107099. Public record. Not legal advice.