James v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

KIZZIE JAMES,

Plaintiff,

v. Case No.: 2:19-cv-869-FtM-MRM

COMMISSIONER OF SOCIAL

SECURITY,

Defendant.

/

OPINION AND ORDER

Plaintiff Kizzie James filed a Complaint on December 6, 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,

disability insurance benefits, and supplemental security income. 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. 24). 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 7, 2016. (Tr. at 18).1 Plaintiff alleged an amended disability onset date of

April 22, 2016. (Id. at 46). Plaintiff’s claim was denied at the initial level on March

17, 2017 and upon reconsideration on March 18, 2017. (Id. at 246, 249, 254, 259).

Plaintiff requested an administrative hearing before an Administrative Law Judge

(“ALJ”) and ALJ Eric Anschuetz held that hearing on April 19, 2018. (Id. at 37-

114). The ALJ issued an unfavorable decision on October 24, 2018. (Id. at 15). On

October 8, 2019, the Appeals Council denied Plaintiff’s request for review. (Id. at 1).

Plaintiff then filed her Complaint with this Court on December 6, 2019, and the

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, however, do not apply in Plaintiff’s case because

Plaintiff filed her claim before March 27, 2017.

parties consented to proceed before a United States Magistrate Judge for all

purposes. (Docs. 1, 13, 16). The matter is, therefore, ripe for the Court’s review.

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 Plaintiff met the insured status requirements of the Social

Security Act through December 31, 2017. (Tr. at 21). At step one, the ALJ found

that Plaintiff “has not engaged in substantial gainful activity since April 22, 2016, the

amended alleged onset date (20 [C.F.R. §§] 404.1571 et seq., and 416.971 et seq.).”

(Id.). The ALJ, at step two, found that Plaintiff has the following severe

impairments: “morbid obesity, degenerative joint disease of the bilateral knees,

degenerative joint disease of the right ankle with minimum to mild pain,

degenerative disc disease of the lumbar spine, hypertension, and lymphoma-nodular

lymphocyte, predominate Hodgkin lymphoma (20 [C.F.R. §] 404.1520(c) and

416.920(c)).” (Id.). At step three, the ALJ determined that Plaintiff “does not have

an impairment or combination of impairments that meets or medically equals the

severity of one of the listed impairments in 20 [C.F.R. §] Part 404, Subpart P,

Appendix 1 (20 [C.F.R. §§] 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925

and 416.926).” (Id. at 22).

The ALJ found that Plaintiff has the residual functional capacity (“RFC”):

[T]o perform light work as defined in 20 [C.F.R. §§]

404.1567(b) and 416.967(b) except the claimant is limited to

lift and carrying 10 pounds; standing and/or walking for

two hours in an eight hour day; sitting for six hours in an

eight hour day; never climbing ladders, ropes, or scaffolds,

but occasionally climbing ramps and stairs; occasional

balancing, stooping, kneeling, and crawling. She can only

squat up to 30 percent of the [d]ay. She has no fingering or

manipulative limitations. She should avoid concentrated

exposure to environmental extremes of heat, cold,

vibrations, and humidity. She must avoid workplace

hazards such as unprotected heights and unshielded rotary

machines. She is also limited to performing simple, routine,

and repetitive tasks. She can have frequent interaction with

supervisors, coworkers, and the public. She must be

permitted to alternate between sitting and standing while

remaining at her workstation.

(Id. at 23). At step four, the ALJ determined Plaintiff “is unable to perform any past

relevant work (20 [C.F.R. §§] 404.1565 and 416.965).” (Id. at 27).

At step five, considering Plaintiff’s age, education, work experience, and RFC,

the ALJ determined that “there are jobs that exist in significant numbers in the

national economy that the [Plaintiff] can perform. (20 [C.F.R. §§] 404.1569,

404.1569(a), 416.969, and 416.969(a)).” (Id. at 28). Specifically, the ALJ, relying on

Vocational Expert (“VE”) testimony, found that Plaintiff could perform the

following jobs that exist in significant numbers in the national economy: Addressing

Clerk (DOT# 209.587-010); Call Out Operator (DOT# 237.367-014); and Document

Preparer (DOT# 249.587-018). (Id. at 29). For these reasons, the ALJ held that

Plaintiff “has not been under a disability, as defined in the Social Security Act, from

April 22, 2016, through the date of this decision (20 [C.F.R. §§] 404.1520(g) and

416.920(g)).” (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 six issues. As stated by the parties, the issues are:

1. Whether the ALJ properly relied on a medical opinion not

included in the Administrative Record and which related to a

different time period and different impairments;

2. Whether the ALJ’s [RFC] finding was supported by substantial

evidence;

3. Whether remand is merited due to an apparent conflict between

the mental [RFC] limitations and the reasoning level requirements

of the jobs cited;

4. Whether the ALJ properly determined the mental [RFC]

limitations without following the special technique mandated by

20 C.F.R. § 404.1520a or otherwise providing a sufficient

explanation in support of the findings;

5. Whether the ALJ’s finding that Plaintiff’s Hodgkin Lymphoma

did not meet or medically equal criteria of Listing 13.05(B) is

supported by substantial evidence; and

6. Whether the ALJ’s rejection of Plaintiff’s alleged symptoms and

limitations is supported by substantial evidence.

(Doc. 26 at 19, 24, 30-31, 39, 48, 57).2 The Court will address each issue separately

below by first summarizing the parties’ arguments, then reciting the applicable legal

standards, before addressing the ALJ’s opinion.

A. The ALJ did not err in relying on a medical opinion not included in

the Administrative Record, relating to a different time period and

different impairments.

1. The Parties’ Arguments

Plaintiff broadly argues that the ALJ erroneously relied on the opinion of the

state agency medical consultant in a prior decision that predates the current alleged

disability onset date. (See Doc. 24 at 19). Plaintiff contends her cancer was not an

issue during the time of this medical opinion, and that substantially relying on

evidence not included in the record warrants remand. (Id. at 19-20).

Defendant responds that even if the ALJ erred by relying on this opinion, it

was a harmless error. (Id. at 20). Defendant argues that the ALJ’s RFC finding was

either consistent with or more limiting than the prior medical opinion. (Id. (citing

Tr. at 23, 160)). Further, Defendant contends that the ALJ did not need to rely on a

doctor’s opinion for an RFC finding at all, and that this Court should affirm as long

as substantial evidence supports that RFC finding even when the medical

consultant’s opinion is not considered. (Id. (citations omitted)). Additionally,

2 Defendant objects to the framing of the fourth and fifth issues. (See Doc. 24 at 39

n.22, 48 n.24). As noted below, the Court agrees with Defendant’s argument against

the framing of the fifth issue.

Defendant asserts that substantial evidence supports the ALJ’s decision and provides

the record evidence in support of its argument. (Id. at 22-24).

In her reply, Plaintiff reiterates that Defendant does not deny that the ALJ

relied on a medical opinion not included in the administrative record. (Id. at 24). As

a result, Plaintiff argues that the Court would be unable to determine whether the

RFC’s finding is consistent with or more limiting than the physician’s opinion. (Id.).

Thus, Plaintiff requests that the Court remand for the provision of a complete record

to Plaintiff, encompassing all the evidence relied on by the ALJ, including the

medical opinion at issue. (Id.).

2. Applicable Legal Standards

An RFC is the most a claimant can still do despite the physical and mental

limitations of her impairments. See 20 C.F.R. § 416.945(a); Phillips v. Barnhart, 357

F.3d 1232, 1238 (11th Cir. 2004). The ALJ is responsible for determining the

claimant’s RFC, and he must consider the claimant’s ability to “meet the physical,

mental, sensory, and other requirements of work.” 20 C.F.R. § 416.946(c). The ALJ

must consider all the claimant’s medically determinable impairments, even those not

designated as severe. 20 C.F.R. § 416.945(a)(2).

The Social Security regulations define medical opinions as statements from

physicians, psychologists, or other acceptable medical sources that reflect judgments

about the nature and severity of impairments, including symptoms, diagnosis, and

prognosis, what a claimant can still do despite impairments, and physical or mental

restrictions. 20 C.F.R. § 404.1527(a)(2). While an ALJ must give a treating

physician special deference, there is no such requirement for non-treating sources.

Barnhart, 357 F.3d at 1240-41. Instead, the ALJ’s RFC determination must merely

be supported by substantial evidence. 42 U.S.C. § 405(g). An incorrect application

of the regulations will result in harmless error if a correct application of the

regulations would not contradict the ALJ’s ultimate findings. Denomme v. Comm’r,

Soc. Sec. Admin., 518 F. App’x 875, 877 (11th Cir. 2013) (citing Diorio v. Heckler, 721

F.2d 726, 728 (11th Cir. 1983)); see also Edwards v. Sullivan, 937 F.2d 580, 586 (11th

Cir. 1991) (holding that remand is not warranted unless an error shows “unfairness”

or “clear prejudice”).

3. Analysis

Here, the Court finds that, to the extent the ALJ may have relied on the past

medical opinion not part of the current record, the error is harmless. As an initial

matter, it is unclear whether the ALJ himself had the medical opinion at the time he

rendered his decision. The ALJ merely states—word for word—the single sentence

summarizing the medical opinion in the prior decision and cites the prior decision as

the source of this information, not the medical opinion itself. (Compare Tr. at 26 with

Tr. at 160). The ALJ followed that by stating, “[w]hile the evidence of record

supports greater standing limitations and the State agency consultant was a non-

examining source, the [2012] opinion is consistent with the claimant’s good response

to treatment and medication.” (Id.).

Moreover, if the ALJ truly gave considerable weight to the 2012 medical

opinion, he would have stated that the Plaintiff could stand/walk for four hours a

day as the medical opinion recommended. (See id. at 160). Nevertheless, the ALJ

found that the plaintiff could stand/walk for two hours a day, consistent with the

recommendation of the state medical consultant in 2017. (Id. at 23, 189).

The reference to the medical opinion aside, the ALJ listed substantial evidence

contained in the record to support his findings. The ALJ detailed the 2017

examination with Dr. Michael Rosenberg, which found Plaintiff has “mild to

moderate left knee pain, minimal to mild right ankle pain, and mild back pain” and

that Plaintiff “reported she was doing well with pain medication.” (Id. at 26). The

ALJ gave significant weight to Dr. Rosenberg’s opinion, which showed Plaintiff had

“limited range of motion of the lumbar spine, hips, and knees bilaterally, pain with

range of motion of the left knee, right ankle, and lumbosacral spine, and swelling in

the right ankle.” (Id. at 26-27). The Plaintiff reported using a walker, but it was not

prescribed by a doctor and neither used at the examination with Dr. Rosenberg nor

the hearing. (Id. at 25). The ALJ further discussed that Plaintiff had “stable joints,

negative straight leg raising bilaterally, full strength in the upper and lower

extremities, and no sensory deficits” and that medical imaging showed “mild and

minimal degenerative changes.” (Id. at 27).

The ALJ followed that by describing the evidence from Plaintiff’s treating

physician, Dr. Jason Nemitz. (Id.). The ALJ gave great weight to this evidence

because Dr. Nemitz “was a treating physician and his opinion is substantiated by his

own treatment notes and is not inconsistent with the other medical evidence of

record.” (Id.). Dr. Neimitz’s reports showed that Plaintiff had degenerative changes

of the midfoot and ankle, but normal range of motion, full motor strength in all

extremities, intact sensation, negative straight leg raising, and normal gait. (Id.).

The ALJ also noted Plaintiff’s self-reporting of daily living, which included the

ability to manage her personal care with occasional help, cooking once a week,

cleaning counters, grocery shopping twice a month, and driving her daughter to the

bus stop weekly. (Id.).

For these reasons, the Court finds the ALJ’s findings of fact were supported by

substantial evidence. See Richardson, 402 U.S. at 390; 42 U.S.C. § 405(g). Thus, even

if the ALJ erred in relying on the 2012 medical opinion not contained in the record,

the detailed evidence supporting the ALJ’s findings and his decision to substantially

follow the recommended limitations contained in the 2017 medical opinion’s make

this, if anything, a harmless error. (Tr. at 23, 189). Thus, remand is not appropriate.

See Denomme, 518 F. App’x at 877.

B. The ALJ’s RFC was supported by substantial evidence.

1. The Parties’ Arguments

Plaintiff next argues that the ALJ’s RFC determination is not supported by the

medical opinion evidence contained in the record. (Doc. 24 at 24). Specifically,

Plaintiff contends that assigning the medical opinions of Drs. Minal Krishnamurthy

and Thomas Bixler only “partial weight” was not enough to constitutes substantial

support for the findings.3 (Id. at 25). Plaintiff also argues that the ALJ improperly

3 Plaintiff contends that Drs. Krishnamurthy and Bixler did not examine the

complete record because they did not review “significant evidence, relating to the

determined Plaintiff had additional limitations not supported by the medical

opinions in his RFC finding. (Id.). Plaintiff asserts that the “significant weight”

given to Dr. Rosenberg’s “opinion” and the “great weight” given to Dr. Nemitz’s

“opinion” is improper since both were treating physicians who did not provide true

opinions regarding functional limitation. (Id. at 26).

In response, Defendant argues that the ALJ did not have to rely on a

physician’s opinion to determine the RFC finding. (Id. at 27-28 (citations omitted)).

Defendant contends that the ALJ considered whether the opinions of Drs.

Krishnamurthy and Bixler were “consistent with the record as a whole” and

discussed them in context with evidence in the record from before and after their

evaluations. (Id. at 28 (citing Tr. at 26)). To any extent that the ALJ referred to the

medical records from Drs. Rosenberg and Nemitz as “medical opinions,” Defendant

argues that this was harmless error. (Id. at 29).

Plaintiff replies by asserting that “[a]lthough there is no regulatory

requirement that an ALJ adopt a medical opinion as the basis of an RFC finding,

courts have questioned the practice of ALJs interpreting raw medical evidence” in

complex cases to render an RFC finding. (Id. at 30 (citing Hernandez v. Barnhart, 203

F. Supp. 2d 1341, 1355 (S.D. Fla. 2002))). Additionally, Plaintiff contends that the

ALJ erred in relying on statements from Drs. Nemitz and Rosenberg that predate the

recurrence of Plaintiff’s lymphoma – or the inability to rule out recurrence – in 2017

and 2018.” (Doc. 24 at 25). For reasons explained later in this Opinion – i.e., that

the evidence did not definitively show recurrence – the Court finds this argument

unpersuasive.

relevant time period and are not medical opinions because it leaves the RFC

insufficiently explained or supported. (Id.).

2. Applicable Legal Standards

As noted above, an RFC is the most a claimant can still do despite the

physical and mental limitations of her impairments. See 20 C.F.R. § 416.945(a);

Phillips, 357 F.3d at 1238. The ALJ is responsible for determining the claimant’s

RFC, and he must consider the claimant’s ability to meet the physical, mental,

sensory, and other requirements of work. 20 C.F.R. § 416.946(c). The ALJ must

consider all the claimant’s medically determinable impairments, even those not

designated as severe. 20 C.F.R. § 416.945(a)(2).

The Social Security regulations define medical opinions as statements from

physicians, psychologists, or other acceptable medical sources that reflect judgments

about the nature and severity of impairments, including symptoms, diagnosis, and

prognosis, what a claimant can still do despite impairments, and physical or mental

restrictions. 20 C.F.R. § 404.1527(a)(2). An ALJ must state with particularity the

weight given to different medical opinions and the reasons therefor. Winschel v.

Comm’r of Soc. Sec., 631 F.3d 1176, 1179 (11th Cir. 2011). While an ALJ must give a

treating physician special deference, there is no such requirement for non-treating

sources. Phillips, 357 F.3d at 1240-41. Additionally, an “ALJ may reject any

medical opinion if the evidence supports a contrary finding.” Lacina v. Comm’r, Soc.

Sec. Admin., 606 F. App’x 520, 526 (11th Cir. 2015) (quoting Sharfarz v. Bowen, 825

F.2d 278, 280 (11th Cir. 1987)).

3. Analysis

While the ALJ stated that he gave the opinions of Drs. Krishnamurthy and

Bixler partial weight, he noted that “[a]lthough they are not treating or examining

sources, they are licensed with extensive experience evaluating and treating persons

who have physical impairments and their opinion is consistent with the record as a

whole.” (Tr. at 26). The ALJ then appears to summarize the evidence consistent

with Drs. Krshnamurthy and Bixler:

As of June 29, 2017, the claimant’s Hodgkin’s Lymphoma

was noted as in remission. As for her degenerative disease

of the right ankle, knees, and lumbar spine, physical

examinations showed tenderness of right ankle and lumbar

spine and limited lumbar range of motion, but otherwise

were generally unremarkable. Likewise, a consultative

examination showed she had stable joints, negative straight

leg raising bilaterally, full strength in the upper and lower

extremities, and no sensory deficits. In addition, the

claimant reported she was doing well with pain medication.

Medical imaging of the right ankle, knees, and lumbar spine

showed mild and minimal degenerative changes. Further,

the claimant’s hypertension was noted as controlled.

(Id. (internal citations omitted)).

Despite giving the opinions only partial weight, the ALJ followed their

medical opinions almost entirely for the RFC. (Compare Tr. at 23 with Tr. at 203,

2019). Specifically, both Drs. Krishnamurthy and Bixler opined that Plaintiff could

occasionally lift and/or carry twenty pounds, frequently lift and/or carry ten pounds,

stand and/or walk for two hours a day, sit for six hours a day, never climb ladders,

ropes, or scaffolds, but occasionally climb ramps and stairs, balance, stoop, kneel,

crouch, or crawl. (Tr. at 203, 219). They stated that she should avoid concentrated

exposure to extreme heat and vibrations, moderate exposure to hazards, but could

have unlimited exposure to extreme cold, wetness, humidity, noise, fumes, odors,

dusts, gases, and poor ventilation. (Id. at 204, 220). Further, both doctors’ opinions

stated they found the Plaintiff not disabled. (Id. at 207, 224).

These opinions are either identical to or less limiting with the ALJ’s

determination that the Plaintiff could:

[P]erform light work as defined in 20 [C.F.R. §§]

404.1567(b) and 416.967(b) except the claimant is limited to

lift and carrying 10 pounds; standing and/or walking for

two hours in an eight hour day; sitting for six hours in an

eight hour day; never climbing ladders, ropes, or scaffolds,

but occasionally climbing ramps and stairs; occasional

balancing, stooping, kneeling, and crawling. She can only

squat up to 30 percent of the [d]ay . . . . She should avoid

concentrated exposure to environmental extremes of heat,

cold, vibrations, and humidity. She must avoid workplace

hazards such as unprotected heights and unshielded rotary

machines . . . . She must be permitted to alternate between

sitting and standing while remaining at her workstation.

(Id. at 23).

Moreover, the ALJ appeared to assign significant weight to the consultative

examiner, Dr. Rosenberg, because “he personally examined the claimant.” (Id. at

26). But, as both parties note, Dr. Rosenberg did not give a true medical opinion,

merely observations and medical findings from examining Plaintiff. (See id. at 820-

26). Thus, while the ALJ referred to Dr. Rosenberg’s observations as opinions, none

of the statements that the ALJ discusses were, in fact, opinions. (See id. at 26-27).

Additionally, not all of the medical records discussed in this paragraph were solely

Dr. Rosenberg’s treatment notes. (See id.). The ALJ cites radiology records from

both 2015 and 2017 to explain that “medical imaging of the left knee, right ankle,

and lumbar spine showed mild and minimal degenerative changes.” (Id. at 27 (citing

Tr. at 469, 897-900)).

The same is true of Dr. Nemitz. (Id. at 27). While the ALJ acknowledged

that the treatment notes were from 2015, he detailed the other later evidence on the

record that supported Dr. Nemitz’s observations during treatment. (Id.). The ALJ

does not mention the later-in-time treating physician, Dr. Alexander Nash, by name,

but details his 2016 and 2017 reports on medical treatments as consistent with Dr.

Nemitz’s 2015 reports and cites Dr. Nash’s reports as evidence. (Id. (citing Tr. at

831, 847)). The ALJ then discussed Plaintiff’s own testimony from her application

and hearing that supported the medical evidence on record. (Id.).

Ultimately, while the ALJ labelled Drs. Nemitz and Rosenberg’s information

as “opinions,” in the context of the whole decision, it is clear to the Court that the

ALJ is recounting the medical evidence that shows Drs. Krishnamurthy and Bixler’s

opinions were consistent with the evidence and treatment notes in the record.

Further, it is clear from the context of the entire decision that the ALJ is not relying

on medical records from before the alleged disability to determine his RFC. Rather,

the ALJ was comparing records from before the alleged date of disability and records

from after to determine whether there was a noted difference between the records.

(See id. at 26-27). This is not the ALJ making his own medical opinions, as Plaintiff

suggests. (See Doc. 24 at 30). Rather, the ALJ was considering both the

recommendations of Drs. Krishnamurthy and Bixler and citing the medical records

that supported their opinions. (See Tr. at 23-27). Thus, the ALJ sufficiently

considered all the medical evidence of record, made explicit findings related to the

evidence, and determined an RFC. In so doing, the ALJ determined an RFC

supported by substantial evidence. The fact that the ALJ decided to add additional

limitations after reviewing the medical treatment records from Plaintiff’s physicians

does not render the finding invalid.

C. Remand is not required for any apparent conflict between the mental

RFC limitations and the reasoning level requirements of the jobs

cited.

1. The Parties’ Arguments

Next, Plaintiff argues that the RFC “limitations are in apparent conflict with

two of the three jobs” that the ALJ found Plaintiff could perform that “[t]he conflict

was not identified by the vocational witness,” or otherwise addressed or resolved by

the ALJ. (Doc. 24 at 31).

In support, Plaintiff relies on Johnson v. Commissioner of Social Security, in which

the Eleventh Circuit remanded the decision “because ‘there is at least “apparently” a

conflict between an employee limited to “simple, routine tasks” and one able to

“deal with problems involving several concrete variables.”’” (Id. (quoting Johnson v.

Comm’r of Soc. Sec., 782 F. App’x. 875, 878 (11th Cir. 2019))). Plaintiff contends that

the limitation here is more restrictive than Johnson because it includes a limitation of

“repetitive” tasks. (Id.). Additionally, Plaintiff argues that both the call out operator

and document preparer jobs require a reasoning level of three, which Plaintiff notes

requires the individual to “[d]eal with problems involving several concrete variables

in or from standardized situations.” (Id. at 31-32 (quoting Doc. 24-1 at 5, 9)). Thus,

Plaintiff appears to argue that the ALJ erred in finding that Plaintiff could perform

these actions without otherwise addressing the apparent conflict. (See id. at 31-32).

Additionally, Plaintiff maintains that this error is not harmless because

although there is one job remaining with a reasoning level of two – i.e., addressing

clerk – and the ALJ adopted the vocation expert’s testimony that there are 10,000

jobs available in the national economy, the ALJ considered the cumulative total of

all three jobs when determining that the jobs that Plaintiff could perform existed in

significant numbers in the national economy. (Id. at 32). Moreover, Plaintiff argues

that while the Eleventh Circuit has “held that 78,000 jobs nationally constituted

substantial evidence to support the ALJ’s finding at step five,” the error cannot be

harmless because the 10,000 remaining jobs is a fraction of the Eleventh Circuit’s

holding. (Id. at 32-33 (citing Valdez v. Comm’r of Soc. Sec., 808 F. App’x 1005, 1010

(11th Cir. 2020))).

In response, Defendant contends that it need not address Plaintiff’s argument

as it relates to the reasoning level three jobs because “Plaintiff fails to argue that she

is unable to perform the remaining reasoning level 2 occupation, Addressing Clerk,

so that issue is not before this Court.” (Id. (citing Access Now, Inc. v. Sw. Airlines, 385

F.3d 1324, 1330 (11th Cir. 2004))). Additionally, Defendant argues that “[t]he

Eleventh Circuit has held the inclusion of an occupation that is not consistent with

the RFC is harmless error when at least one remaining occupation is consistent and

represents a significant number of jobs in the national economy.” (Id (citing Wooten

v. Comm’r of Soc. Sec., 787 F. App’x 671, 674 (11th Cir. 2019); Valdez, 808 F. App’x at

1009)). Thus, Defendant maintains that because the vocational expert testified that

an individual could perform the work of an addressing clerk, which has 10,000 jobs

available in the national economy, “the number of jobs for the remaining occupation

Plaintiff can undisputedly perform represents a significant number of jobs.” (Id. at

33-34 (citations omitted)). Furthermore, Defendant argues that Eleventh Circuit

precedent supports a finding that significant number of jobs can be based on one

occupation and that other jurists have determined that a lower number of jobs

constituted significant number of jobs. (Id. at 34-35 (collecting cases)). Thus,

Defendant contends that the Court should affirm the decision. (Id. (citing Wooten,

787 F. App’x at 674; Valdez, 808 F. App’x at 1009)).

Furthermore, although Defendant maintains that Plaintiff abandoned the

argument, Defendant, nonetheless, argues that “there is no apparent conflict between

a limitation to simple, routine, and repetitive tasks and reasoning level 2.” (Id.). In

support, Defendant cites Valdez v. Commissioner of Social Security, and argues that the

Eleventh Circuit concluded that “a limitation to simple, routine, and repetitive tasks

is not inconsistent with a reasoning level 2 job.” (Id. (citing Valdez, 808 F. App’x at

1009)).

In her reply, Plaintiff maintains that she did not abandon the argument

whether the reasoning level two job was inconsistent with the RFC and DOT

because she “argued remand was merited even if one of the three cited occupations

remained.” (Id. at 37-38 (emphasis in original)). Additionally, Plaintiff argues that

since the initial briefing, the Eleventh Circuit has found “that a limitation to

‘understand, remember, and carry out short, simple instructions . . . seems to

correspond to a GED reasoning level of one.’” (Id. at 38 (quoting Albra v. Acting

Comm’r of Soc. Sec., 825 F. App’x 704, 708 (11th Cir. 2020))). Plaintiff maintains that

because the limitation in Alba is analogous to the limitation here, the decision in Alba

undermines Defendant’s harmless error argument. (Id.).

2. Applicable Legal Standards

At step five of the sequential evaluation, the ALJ must determine whether jobs

exist in significant numbers in the national economy that a plaintiff can perform.

Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1180 (11th Cir. 2011). “The general

rule is that after determining the claimant’s RFC and ability or inability to return to

past relevant work, the ALJ may use the grids to determine whether other jobs exist

in the national economy that a claimant is able to perform.” Phillips, 357 F.3d at

1242. An ALJ may use the Medical Vocational Guidelines or may obtain the

testimony of a vocational expert to determine whether there are jobs that exist in the

national economy that a claimant can perform. Winschel, 631 F.3d at 1180. If the

ALJ decides to use a vocational expert, for the vocational expert’s opinion to

constitute substantial evidence, “the ALJ must pose a hypothetical question which

comprises all of the claimant’s impairments.” Id. (citing Wilson v. Barnhart, 284 F.3d

1219, 1227 (11th Cir. 2002)).

In addition, “the ALJ has an affirmative obligation to identify any ‘apparent’

conflict and to resolve it. The failure to properly discharge this duty means the ALJ’s

decision is not supported by substantial evidence.” Washington v. Comm’r of Soc. Sec.,

906 F.3d 1353, 1362 (11th Cir. 2018). Thus, an ALJ must ask the vocational expert

whether a conflict between his or her testimony and the DOT exists and must ask for

an explanation if there appears to be a conflict. Id. at 1363. Moreover, whenever a

conflict is apparent, the ALJ must ask the vocational expert about it. Id. An

apparent conflict is a “conflict that is reasonably ascertainable or evident from a

review of the DOT and the VE’s testimony. At a minimum, a conflict is apparent if

a reasonable comparison of the DOT with the VE’s testimony suggests that there is a

discrepancy, even if, after further investigation, that turns out not to be the case.” Id.

at 1365. “During or after the hearing, the ALJ is expected to take notice of apparent

conflicts, even when they are not identified by a party, and resolve them.” Id. at

1363. This is an independent obligation of the hearing examiner. Id.

3. Analysis

As an initial matter, the Court finds that there is no apparent conflict between

the limitation to “simple, routine, and repetitive tasks” and an occupation with a

reasoning level two. The Eleventh Circuit specifically addressed this contention in

Valdez v. Commissioner of Social Security and determined that the two are not

inconsistent. Valdez, 808 F. App’x at 1009 (concluding that jobs with a reasoning

level of two are not inconsistent with a limitation to “simple, routine, and repetitive

tasks”). Although Plaintiff argues that at least one jurist in this Court has found that

this statement is dicta and that the Court should, therefore, follow the more recent

decision in Alba v. Commissioner of Social Security, the Court need not consider

whether the Eleventh Circuit’s statement in Valdez was dicta. Rather, as this Court

has previously noted, because both Valdez and Alba are unpublished, neither decision

is binding on this Court. Peterson v. Comm’r of Soc. Sec., No. 2:19-CV-566-FTM-

29NPM, 2020 WL 6708022, at *3 (M.D. Fla. Nov. 16, 2020), appeal docketed No.

21-10086 (11th Cir. January 11, 2021). Thus, both opinions are persuasive “only

insofar as their legal analysis warrants.” Id. (quoting United States v. Rodriquez-Lopez,

363 F.3d 1134, 1138 n.4 (11th Cir. 2004)).

Despite the lack of binding precedent on this issue within this Circuit, other

Circuits have also found that no apparent conflict exists between a limitation to

simple, routine, and repetitive tasks and an occupation requiring level two reasoning.

See Lawrence v. Saul, 941 F.3d 140, 144 (4th Cir. 2019) (collecting cases and noting

that “[i]n finding no apparent conflict between ‘simple, routine, repetitive’ and Level

2 reasoning, [it] join[s] every other circuit to consider the issue”). Without binding

authority, the Court finds the Fourth Circuit’s decision in Lawrence v. Saul persuasive.

See Peterson, 2020 WL 6708022, at *3 (finding Lawrence, 941 F.3d at 144, persuasive

and concluding that no conflict exists). Thus, insofar as Lawrence is consistent with

the Eleventh Circuit’s statement in Valdez, the Court joins the jurists of this district

who have relied on Valdez to find no apparent conflict exists between “simple,

routine, and repetitive” and a reasoning level two occupation. See, e.g., Rae v. Saul,

No. 8:19-CV-2987-T-TGW, 2021 WL 211269, at *7 (M.D. Fla. Jan. 21, 2021);

Korstanje v. Comm’r of Soc. Sec., No. 8:19-CV-3003-T-MAP, 2021 WL 129822, at *4

(M.D. Fla. Jan. 14, 2021); Green v. Saul, 8:19-cv-2021-T-TGW, 2020 WL 5743185, at

*10 (M.D. Fla. Sept. 25, 2020); Fletcher v. Saul, 8:19-cv-1476-T-23AAS, 2020 WL

4188210, at *1 (M.D. Fla. July 21, 2020).

Because the Court determines that no apparent conflict exists between

“simple, routine, and repetitive” and a reasoning level two occupation, the Court

finds that Plaintiff could perform the work as an addressing clerk. Thus, the Court

turns to the issue of whether the occupation of addressing clerk exists in the national

economy, such that the ALJ’s error in finding that Plaintiff could perform the work

of either a call out operator or a document preparer is harmless.

To the extent that Plaintiff attempts to argue that the ALJ did not find that the

job of addressing clerk alone existed in significant numbers and the Court cannot

make such a determination itself, (see Doc. 24 at 32), the Court finds the argument

lacks merit. Rather, the Eleventh Circuit in Valdez concluded that even without the

level three reasoning occupations, the ALJ determined that the remaining jobs

existed in significant in the national economy. Valdez, 808 F. App’x at 1009.

Likewise, the Court finds that the ALJ determined that the 10,000 jobs in addressing

clerk existed in significant numbers. Specifically, the ALJ found that jobs – i.e.,

multiple jobs – existed in significant numbers in the national economy. (Tr. at 28).

In listing out the three positions of addressing clerk, call out operator, and document

preparer, the ALJ inherently found each of those as a job that existed in significant

numbers in the national economy. (See id.). The Eleventh Circuit has “never held

that a minimum numerical count of jobs must be identified in order to constitute

work that ‘exists in significant numbers’ under the statute and regulations.” Atha v.

Comm’r, Soc. Sec. Admin., 616 F. App’x 931, 934 (11th Cir. 2015). Nonetheless, this

Court has found a lower number of jobs significant. See Blackmon v. Saul, No. 8:19-

CV-3040-T-AEP, 2021 WL 222777, at *4 (M.D. Fla. Jan. 22, 2021) (finding 7,000

jobs significant).

For these reasons, the Court finds that the ALJ’s error in not addressing the

apparent conflict between the level three reasoning positions and the limitation to

simple, routine, and repetitive tasks harmless because the ALJ found that Plaintiff

can perform a job as an addressing clerk, which exists in significant numbers in the

national economy. Thus, notwithstanding the ALJ’s error, the Court affirms on this

issue because the error is harmless. See Denomme, 518 F. App’x at 877.

D. The ALJ did not err in determining mental RFC limitations without

performing a Psychiatric Review Technique (“PRT”).

1. The Parties’ Arguments

Plaintiff next argues “[t]he ALJ erred by making a determination about

Plaintiff’s mental limitations resulting from her impairments without issuing the

underlying findings mandated by the special technique for the evaluation of mental

impairments under 20 C.F.R. § 404.1520a” and “otherwise failed to provide

sufficient explanation for the specific mental limitations resulting from physical

impairments under SSR 96-8p.” (Doc. 24 at 40). Thus, Plaintiff contends that

because the ALJ imposed mental functional limitations without making findings

related to Plaintiff’s mental impairments, the ALJ committed legal error that requires

remand. (Id. at 41).

Plaintiff maintains that if she has a medically determinable mental

impairment, her limitations based on the mental impairment must be rated on her

ability to function in the following categories: “understand[ing], remember[ing], or

apply[ing] information; interact[ing] with others; concentrate[ing], persist[ing], or

maintain[ing] pace; and adapt[ing] or manag[ing] oneself.” (Id. (alterations in

original) (quoting 20 C.F.R. § 404.1520a(c))). Plaintiff continues that the ALJ must

assess the severity of the mental impairment after considering the categories and the

written decision must incorporate the information and make a specific finding as to

the limitations of each category. (Id. at 40-41 (citing 20 C.F.R. §§ 404.1520a(d);

404.1520a(e)(4))). Plaintiff contends, however, that the ALJ did not perform the

requisite evaluation or make the requisite findings. (Id. at 41 (collecting cases)).

Plaintiff further argues that the ALJ’s failure is not harmless because his decision to

find the limitation and then explain the basis “contravene[d] the mandate and steps

specified in 20 C.F.R. § 404.1520a.” (Id. at 41). Moreover, Plaintiff contends that

any argument by the ALJ that compliance with 20 C.F.R. § 404.1520a was not

required lacks merit because “the proper analysis necessarily would have involved a

finding specifically addressing the presence or absence of mental impairments with

the requisite findings. Here, no underlying findings were made, and the decision is

silent on this issue.” (Id. at 42 (citing Armata v.Berryhill, No. 3:17-CV-30054-KAR,

2018 U.S. Dist. LEXIS 171804, at *42 (D. Mass. Oct. 4, 2018))).

Finally, Plaintiff argues that even if the ALJ’s noncompliance with 20 C.F.R.

§ 404.1520a is deemed harmless, remand is necessary because “the lack of rationale

supporting the ALJ’s findings fails to comply with the mandates of SSR 96-8p.”

(Id.). In support, Plaintiff maintains that the ALJ’s decision failed to “explain how

physically based medically determinable impairments were determined to result in

non-exertional or mental functional impairments.” (Id. at 42-43).

In response, Defendant argues that the ALJ did not have to address any

mental impairment in the decision because “Plaintiff never alleged a disability based

on a mental impairment” and “Plaintiff failed to present evidence establishing a

colorable claim of mental impairment.” (Id. at 43 (citing Tr. at 39-95, 352, 271; Street

v. Barnhart, 133 F. App’x 621, 627 (11th Cir. 2005))). In support, Defendant notes

that the ALJ found that “Plaintiff ‘did not have any mental health therapy’” but

included the non-physical limitations due to “chemotherapy-related issues of fatigue,

dizziness, and anxiety.” (Id. (emphasis in original) (citing Tr. at 27, 452-1054)).

Additionally, Defendant maintains that “[e]ven if records reflects a reference to

something like a report of anxiety, a diagnosis of a mental condition, or treatment for

a mental condition, that does not demonstrate [that] a claimant made a colorable

claim of a mental impairment that required application of the PRT.” (Id. at 43-44

(collecting cases)). Nevertheless, Defendant contends that Plaintiff failed to cite to a

diagnosis of mental impairment or any objective evidence indicating she had a

mental impairment and that the evidence reflects normal psychiatric findings. (Id.

(citing Tr. at 567, 615, 760, 771, 1051)). Thus, Defendant argues that Plaintiff did

not establish a colorable claim of mental impairment and the ALJ, therefore, was not

required to apply the PRT. (Id.).

Nevertheless, Defendant argues that even assuming arguendo the ALJ erred in

failing to conduct a PRT, the error is harmless. (Id.). In support, Defendant notes

that the PRT is used to evaluate the severity of a mental impairment at steps two and

three. (Id. (citing 20 C.F.R. § 404.1520a.)). Defendant maintains that any error at

step two would have been harmless because the ALJ would not have found the

impairment severe, given the normal psychiatric findings, and because the ALJ

otherwise found that Plaintiff had at least one severe impairment. (Id. at 44-45

(citing Dixon v. Astrue, No. 5:09-cv-320, 2010 WL 4942141, at *10 (N.D. Fla. Oct. 26,

2010); Ball v. Comm’r of Soc. Sec. Admin., 714 F. App’x 991, 993 (11th Cir. 2018))).

Finally, Defendant argues that Plaintiff’s contention that the ALJ erred in

determining Plaintiff’s RFC by failing to comply with SSR 96-8p lacks merit. (Id. at

46). Rather, Defendant contends that “an ALJ satisfies the specificity obligations of

SSR 96-8p by discussing a claimant’s impairments and thereafter expressing a

claimant’s RFC in vocationally relevant terms.” (Id. (citing Carson v. Comm’r of Soc.

Sec., 440 F. App’x 863, 864 (11th Cir. 2011))). Defendant maintains that the ALJ

properly considered and evaluated all of the medical evidence and Plaintiff’s

testimony and ultimately concluded that “despite Plaintiff’s ‘lack of mental health

therapy,’” the ALJ included mental limitations “because of the ‘residual effects of

chemotherapy including, fatigue, dizziness, and anxiety.’” (Id. (quoting Tr. at 27)).

Thus, Defendant argues that the ALJ complied with SSR 96-8p. (Id. at 46-47 (citing

Carson, 440 F. App’x at 864; Freeman, 220 F. App’x at 959; Hawkins v. Berryhill, No.

4:17-cv-2136-CLS, 2018 WL 5807524, at *5-6 (N.D. Ala. Nov. 7, 2018))).

In her reply, Plaintiff argues that Defendant’s “reformulation of regulatory

requirements to allow noncompliance merely because the mental limitations did not

originate from an impairment classified as having a mental genesis should be

rejected.” (Id.). In support, Plaintiff contends that because the ALJ found mental

functional limitations, the ALJ was required to engage in a PRT regardless of

whether Plaintiff had treatment or a diagnosis. (Id.). Plaintiff maintains that the

purpose of the PRT is “to outline the rationale required of decisions when

determining mental limitations” and the ALJ’s decision does contain a rationale, in

violations of 20 C.F.R. § 404.1520a and SSR 96-8p. (Id. at 47-48).

2. Applicable Legal Standards

“The residual functional capacity is an assessment, based upon all of the

relevant evidence, of a claimant’s remaining ability to do work despite his

impairments.” Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997); see also Barrio

v. Comm’r of Soc. Sec., 394 F. App’x 635, 637 (11th Cir. 2010). “An individual’s RFC

is his ability to do physical and mental work activities on a sustained basis despite

limitations secondary to his established impairments.” Delker v. Comm’r of Soc. Sec.,

658 F. Supp. 2d 1340, 1364 (M.D. Fla. 2009).

When considering a claimant with a mental impairment, “[a]gency

regulations require the ALJ to use the ‘special technique’ dictated by the [Psychiatric

Review Technique Form] for evaluating mental impairments.” Moore v. Barnhart,

405 F.3d 1208, 1213 (11th Cir. 2005) (quoting 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

PRT 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.

3. Analysis

The Court finds that the ALJ did not err in failing to complete a PRT to assess

Plaintiff’s mental impairment because Plaintiff did not raise a colorable claim of

mental impairment. The Eleventh Circuit has held that the ALJ did not err in failing

to “consider undisputed evidence of [the plaintiff’s] mental impairments and

intellectual functioning” because the plaintiff neither listed a mental or intellectual

impairment on his application or testified that he suffered from such an impairment.

Street v. Barnhart, 133 F. App’x 621, 627 (11th Cir. 2005). Rather, the Court noted

that an ALJ has no “obligation to investigate a claim not presented at the time of the

application for benefits and not offered at the hearing as a basis for disability.” (Id.

(quoting Pena v. Chater, 76 F.3d 906, 909 (8th Cir.1996))). Similarly, the Eleventh

Circuit has held that when a plaintiff failed to allege a mental disability in the

disability report, the ALJ did not need to order a consultative examination. Hethcox

v. Comm’r of Soc. Sec., 638 F. App’x 833, 835 (11th Cir. 2015). Although neither

address the ALJ’s failure to perform a PRT, the Court finds the Eleventh Circuit’s

holdings in these cases analogous to the instant case. Thus, because Plaintiff did not

allege a mental impairment in either her application for disability or her testimony at

the hearing, (see Tr. at 78, 352, 372), the Court finds that she did not raise a colorable

claim of mental impairment. To conclude otherwise would impose a burden on the

ALJ contrary to Eleventh Circuit precedent. See Street, 133 F. App’x at 627.

Notwithstanding this finding, the Court notes that Plaintiff has still failed to

establish a colorable claim of a mental disability. Specifically, Plaintiff has neither

been diagnosed with nor treated for a mental impairment. Rather, as the ALJ noted,

Plaintiff’s treatment notes from Florida Cancer Specialists note that Plaintiff

“complained of fatigue, tiredness, muscle cramps, insomnia, and anxiety.” (Tr. at 24

(citing Tr. at 749, 787, 791)). In at least one of the cited reports, however, Plaintiff

was found to have no depression or anxiety despite her subjective complaint. (Id. at

787). Additionally, treatment notes from Florida Cancer Specialists during the same

time period equally reflect that she did not complain of anxiety. (See id. at 738, 746,

789, 800, 901, 912, 914).

In light of the conflicting subjective complaints and lack of diagnosis, the

Court finds that Plaintiff failed to establish a colorable claim of mental impairment.

Rather, it is clear to the Court that the ALJ acknowledged Plaintiff’s subjective

complaints of anxiety as they relate to the chemotherapy but found that she did not

suffer from a mental impairment itself. (See id. at 27). Thus, the ALJ did not err

when he chose not to complete a PRT to assess a mental impairment.

As to Plaintiff’s argument that the ALJ failed to provide a rationale for how

the physical impairments resulted in mental limitations, (see Doc. 24 at 42-43), the

Court finds the argument is likewise without merit. Social Security Ruling 96-8p

requires the RFC assessment to “include a narrative discussion describing how the

evidence supports each conclusion, citing specific medical facts (e.g., laboratory

findings) and nonmedical evidence (e.g., daily activities, observations).” SSR 96-8p,

1996 WL 374184, at *7 (1996). Here, the ALJ did just that. Specifically, the ALJ

went through all the medical evidence of record, evaluated the credibility of

Plaintiff’s complaints, addressed inconsistencies, and assigned weights to the medical

opinions and provided reasons thereto. (Tr. at 23-27). The ALJ then summarized

his findings in a final paragraph at step three:

In sum, the above residual functional capacity assessment

is supported by the claimant[’s] degenerative joint disease

of the knees and right ankle, degenerative disc disease of the

lumbar spine, history lymphoma with residual effects from

chemotherapy, and obesity. Physical examinations showed

tenderness of right ankle and lumbar spine and limited

lumbar range of motion, but otherwise were generally

unremarkable. Likewise, a consultative examination

showed she had stable joints, negative straight leg raising

bilaterally, full strength in the upper and lower extremities,

and no sensory deficits. In addition, the claimant reported

she was doing well with pain medication. Medical imaging

of the right ankle, knees, and lumbar spine showed mild and

minimal degenerative changes. Further, the residual

functional capacity is consistent with the opinion of the

State agency medical consultants who also opined that

claimant could perform a reduced range of light work.

While the claimant did not have any mental health therapy,

the mental limitations are supported by the claimant’s pain

symptoms, limited education, and residual effects of

chemotherapy including fatigue, dizziness, and anxiety.

(Id. at 27 (internal citations omitted)). The ALJ’s thorough and detailed analysis of

the pertinent medical history and the summation at the end of the step three analysis,

satisfies the ALJ’s duties under SSR 96-8p. Additionally, the last sentence of the

ALJ’s summary clarifies precisely what evidence the ALJ relied on to determine the

mental limitations. (See id.). To the extent Plaintiff disagrees with the ALJ’s

findings, it does not warrant remand.

In sum, the Court finds that the ALJ did not err in failing to conduct a PRT

because Plaintiff failed to establish a colorable claim of mental impairment.

Additionally, the Court finds that the ALJ satisfied his obligations under SSR 96-8p

in fully addressing the medical evidence of record and determining Plaintiff’s RFC.

Thus, the Court affirms on this issue.

E. The ALJ did not err in finding that Plaintiff did not meet the criteria

of Listing 13.05(B) and the Appeals Council did not err in refusing to

consider the new evidence.4

1. The ALJ did not err in finding that Plaintiff did not meet the

criteria of listing 13.05(B).

a. The Parties’ Arguments

Next, Plaintiff argues that “[t]he ALJ failed to properly evaluate Plaintiff’s

Hodgkin lymphoma at step three, resulting in an unsupported finding that her

impairments did not meet or medically equal the criteria of Listing 13.05(B),” which

requires a finding of disability if Plaintiff has “Hodgkin lymphoma with failure to

achieve clinically complete remission, or recurrent lymphoma within 12 months of

completing initial anticancer therapy.” (Doc. 24 at 48 (quoting 20 C.F.R. § 404,

Subpart P, Appendix 1, Listing 13.05(B))). Specifically, Plaintiff argues that “the

evidence showed probable recurrence of lymphoma by October 2017 – within 12

months of Plaintiff’s last chemotherapy treatment of November 2016 – or,

alternatively, a very brief remission that should have been considered under medical

equivalency.” (Id. at 49). In support, Plaintiff summarizes the relevant medical

history, stating that in November 2016 Plaintiff finished chemotherapy and “the

November 25, 2016 PET scan indicated stable mesenteric adenopathy with no

significant interval change since in the associated low grade FDG activity” but that

“residual malignancy could not be excluded” and that a mass was still present. (Id.

4 The Court agrees with Defendant’s argument that Plaintiff makes two distinct

arguments in this section. Accordingly, the Court will consider each argument

separately.

(citing Tr. at 809, 912)). Plaintiff argues that she was not in remission until the

January 31, 2017 CT scan, which indicated that the mass was no longer visible. (Id.

(citing Tr. at 914)). Plaintiff maintains, however, that on October 10, 2017, her “CT

scan was deemed suboptimal” but that it “noted a treated mesenteric

lymphadenopathy in the abdomen and pelvis, without new lymph nodes, and two

probably benign lymph nodes, but without specific evidence of recurrent neoplastic

disease.” (Id. (citing Tr. at 1022)). Additionally, Plaintiff contends that the January

19, 2018 “CT scan noted that soft tissue nodules at the root of the mesentery in the

mid abdomen were difficult to distinguish from adjacent unopacified bowel loops,

but appeared to be stable to decreased size when compared with prior

examinations.” (Id. at 50 (citing Tr. at 997)). Moreover, Plaintiff notes that although

a PET scan was ordered at that time, Plaintiff’s insurance denied it. (Id. (citing Tr. at

992)). Nevertheless, Plaintiff maintains that the March 3, 2018 PET scan showed

interval increase in metabolism in remnant central abdominal mass, suggesting

recurrent Hodgkin disease, without evidence for active lymphoma. (Id. (citing Tr. at

1045)). Accordingly, Plaintiff argues that “the ALJ’s finding, that no physician ‘has

mentioned findings equivalent in severity to the criteria of any listed impairment,’ is

unsupported by the substantial evidence of record,” because the record “indicates

likely recurrence or a lack of meaningful remission.” (Id. (quoting Tr. at 23)).

Additionally, Plaintiff argues that the ALJ’s supplemental rationale – that

Plaintiff’s “representative did not indicate that [Plaintiff’s] impairments met or

equaled the requirements of any listing” – is meritless because the Hodgkin

lymphoma was alleged as a disability and discussed at the hearing. (Id. at 52).

In response, Defendant argues that “the ALJ properly found Plaintiff did not

met or equal any Listing, including Listing 13.05(B).” (Id. at 53 (citing Tr. at 22)).

In support, Defendant notes that Plaintiff was diagnosed in early 2016, underwent

six chemotherapy sessions, with the last one being in November 2016, a PET/CT

scan in February 2017 showed no evidence of recurrence, and while a PET/CT scan

in March 2018 suggested recurrence, “there was no additional metabolic or other

evidence of active lymphoma.” (Id. (citing Tr. at 22, 580-81, 787, 973, 1045)).

Additionally, Defendant notes that Plaintiff’s representative did not mention the

Listings at the hearing and “acknowledged records showed no recurrence of cancer

and that Plaintiff was in remission.” (Id. (citing Tr. at 27-114, 49-50)). Similarly,

Defendant maintains that Plaintiff testified that the cancer was in remission. (Id. at

53-54 (citing Tr. at 55, 81)). Moreover, Defendant argues that in making his

determination, the ALJ noted that “no treating or examining physician ha[d]

mentioned findings equivalent in severity to the criteria of any listed impairment”

and that he relied on the State agency consultant’s opinions from March 2017 and

May 2017, who opined that Plaintiff did not meet the Listing criteria. (Id. at 54

(citing Tr. at 23, 190-91, 221-22)). Thus, Defendant contends that the ALJ’s finding

is supported by substantial evidence. (Id.).

Furthermore, Defendant essentially asserts that Plaintiff’s argument

contradicts her own testimony and amounts to a request that the Court reweigh the

evidence. (See id. at 54 (citations omitted)). Defendant maintains that even if

Plaintiff believes that the records show recurrence, no record “include[s] definitive

evidence” to show she was no longer in remission. (Id. at 54-55 (citing Tr. at 901,

1020, 2045)). Defendant maintains that “Plaintiff’s speculative interpretations of the

evidence do not undermine the ALJ’s decision.” (Id. at 55 (citing Moore, 405 F.3d at

1213)). Rather, Defendant maintains that the ALJ interpreted the evidence, and the

Court cannot weigh the facts anew but must affirm where the decision, as it is here,

is supported by substantial evidence. (Id. at 55-56 (citing Mitchell, 771 F.3d at 782)).

In her reply, Plaintiff merely notes that Defendant did not address the

evidence cited by Plaintiff, which indicated a likely recurrence or lack of sustained

remission. (Id.).

b. Applicable Legal Standards

At step three, to meet the requirements of a Listing, a plaintiff must “have a

medically determinable impairment(s) that satisfies all of the criteria in the listing.”

20 C.F.R. § 404.1525(d). The Listings of Impairments in the Social Security

Regulations identify impairments that are considered severe enough to prevent a

person from engaging in gainful activity. See 20 C.F.R. Pt. 404, Subpt. P, App. 1. If

a plaintiff can meet a listed impairment or otherwise establish an equivalence, then a

plaintiff is presumptively determined to be disabled and the ALJ’s sequential

evaluation of a claim ends. Edwards v. Heckler, 736 F.2d 625, 626 (11th Cir. 1984).

The burden is on Plaintiff to show that she meets the Listings. Wilkinson on Behalf of

Wilkinson v. Bowen, 847 F.2d 660, 662 (11th Cir. 1987). If an impairment manifests

only some of the criteria, then it does not qualify, no matter how severe the

impairment. Sullivan v. Zebley, 493 U.S. 521, 530 (1990).

To meet a Listing, a plaintiff must have a diagnosis included in the Listings,

and “must provide medical reports documenting that the conditions meet the specific

criteria of the Listings and the duration requirement.” Wilson v. Barnhart, 284 F.3d

1219, 1224 (11th Cir. 2002) (citing 20 C.F.R. § 1525(a)-(d)). “If a claimant has more

than one impairment, and none meets or equals a listed impairment, the

Commissioner reviews the impairments, symptoms, signs, and laboratory findings to

determine whether the combination is medically equal to any listed impairment.” Id.

(citing 20 C.F.R. § 404.1526(a)).

The pertinent listing at issue here, 13.05(B), requires a finding of disability if

the plaintiff has “Hodgkin lymphoma with failure to achieve clinically complete

remission, or recurrent lymphoma within 12 months of completing initial anticancer

therapy.” 20 C.F.R. § Pt. 404, Subpt. P, App’x 1, § 13.05(B).

c. Analysis

The Court finds that the substantial evidence supports the ALJ’s finding that

Plaintiff did not meet the criteria of Listing 13.05(B). (See Tr. at 22). The ALJ noted

that Plaintiff was diagnosed with lymphoma in early 2016, and underwent six rounds

of chemotherapy, the last in November 2016. (Id. (citing Tr. at 787)). The ALJ

continued, noting that in February 2017, a CT scan “showed no evidence of

recurrence disease,” and that “[a]s of June 29, 2017, [Plaintiff’s] Hodgkin’s

Lymphoma was noted as in remission and she was finished with chemotherapy.”

(Id. (citing Tr. at 828, 973)). Additionally, the ALJ cited the PET/CT Scan in March

2018, which indicated “interval increase in metabolism in remnant central

abdominal mass suggesting recurrent Hodgkin’s disease but there was no additional

metabolic or other evidence of active lymphoma.” (Id. (citing Tr. at 1045)). Having

summarized the pertinent evidence, the ALJ then noted that Plaintiff’s representative

did not indicate that Plaintiff met any Listing and that “no treating or examining

physician has mentioned findings equivalent in severity to the criteria of any listed

impairment.” (Id. at 23).

As noted above, Plaintiff had the burden to “provide medical reports

documenting that the conditions meet the specific criteria of the Listings and the

duration requirement,” and here, Plaintiff has failed to meet her burden. See Wilson,

284 F.3d at 1224 (citing 20 C.F.R. § 1525(a)-(d)). Plaintiff provided medical reports

that indicated the possibility that her lymphoma had recurred. (See Tr. at 992, 997,

1020, 1022, 1045). But, none of the records cited by Plaintiff demonstrate that the

lymphoma had in fact recurred. (See id.). The ALJ found as much when he cited

one of the records but noted that although the records “suggest[ed] recurrent

Hodgkin’s disease,” there was “no additional metabolic or other evidence of active

lymphoma.” (Id. at 22 (citing Tr. at 1045)). Moreover, as the ALJ correctly noted

that “no treating or examining physician has mentioned findings equivalent in

severity to the criteria of any listed impairment.” (Id. at 23). Based in part on this

lack of evidence, the ALJ concluded that Plaintiff did not meet the criteria of the

Listings. (Id. at 22-23). Now, Plaintiff has failed again to provide any

documentation that the lymphoma had actually recurred. To meet her burden,

Plaintiff needed to provide “corroborative medical evidence supported by clinical

and laboratory findings.” Kirchner v. Comm’r of Soc. Sec., No. 5:17-CV-197-OC-

18PRL, 2018 WL 3639918, at *3 (M.D. Fla. June 25, 2018), report and

recommendation adopted, No. 5:17-CV-197-OC-18PRL, 2018 WL 3637520 (M.D. Fla.

July 31, 2018) (citing Carnes v. Sullivan, 936 F.2d 1215, 1218 (11th Cir. 199)1).

Nevertheless, Plaintiff points only to other evidence that she believes together with

the evidence cited by the ALJ suggests – even strongly suggests – the recurrence of

the disease. This, however, does not require remand because the mere suggestion or

possibility of recurrence is not corroborative evidence supported by clinical and

laboratory findings. See id. Rather, the evidence cited by Plaintiff in her brief is

speculative at best.

The Court cannot reweigh evidence. Rather, the Court must affirm if

substantial evidence supports the Commissioner’s findings. See Edwards, 937 F.2d at

584 n.3. Here, the ALJ found that Plaintiff did not meet the criteria of Listing

13.05(B) notwithstanding at least one report, less than 12 months after her date of

remission, that suggested but did not establish or even opine that the disease had

definitively recurred. Plaintiff has offered no evidence to contradict this finding or to

otherwise show that the ALJ did not consider the evidence of record. (See Doc. 24 at

48-50). Rather, the ALJ explicitly noted that there was a suggestion of recurrence

but determined that the evidence did not support the requisite finding to establish the

Listing. (See Tr. at 22-23). Thus, without more, the Court finds that substantial

evidence supports the ALJ’s decision and, therefore, affirms on this issue.

2. The Appeals Council did not err refusing to consider the new

evidence.

a. The Parties’ Arguments

Here, Plaintiff notes that she provided additional evidence to the Appeals

Council to support the prior suspicion that the lymphoma had recurred. (Doc. 24 at

50). Specifically, Plaintiff argues that in light of the May 2018 PET and CT scans,

Plaintiff had an exploratory laparoscopy in June 2018, which found no masses, but

Plaintiff, nonetheless, had “mild fatigue, tiredness, and weakness.” (Id. at 50 (citing

Tr. at 133, 135-36)). Additionally, Plaintiff maintains that a CT scan in August 2018

scan was suboptimal but indicated that the possibility of recurrent lymphoma could

not be excluded because the lymph nodes appeared larger than previous exams. (Id.

at 51 (citing Tr. at 131-32)). Finally, Plaintiff notes in September 2018 another

exploratory laparoscopy was ordered along with a bone marrow biopsy. (Id. (citing

Tr. at 116-18, 126-27)). Thus, Plaintiff argues that the evidence submitted to the

Appeals Council “showed that a recurrence of the lymphoma was possible and was

still being investigated.” (Id.).

In its decision, Plaintiff maintains that the Appeals Council did not dispute

that the evidence was new or that there was good cause for the timing of providing it

to the Appeals Council, but found only that the evidence “d[id] not show a

reasonable probability that it would change the outcome of the decision.” (Id. at 51-

52 (quoting Tr. at 2)). Plaintiff argues that in so finding, the Appeals Council erred

because the evidence supports the prior suspicions of recurrence, which relate to the

Listing 13.05(B) criteria. (Id.).

In response, Defendant argues that the Appeals Council properly determined

that the evidence did not show a reasonable probability that the outcome of the

ALJ’s decision would change because, rather than showing that Plaintiff’s

lymphoma had recurred, the evidence describes “equivocal evidence” or discusses

the “possibility” of the disease. (Id. at 56-57). Thus, Defendant contends that

“[t]here is no reasonable probability that the inconclusive evidence, considered with

all the evidence in the record before the ALJ, would change the ALJ’s step three

finding.” (Id. at 57).

In her reply, Plaintiff argues that Defendant’s argument lacks merit because

the ALJ was tasked with resolving whether there was sustained remission long

enough to render Listing 13.05(B) and, therefore, the evidence of the possible

recurrence was material. (Id.).

b. Applicable Legal Standards

Generally, the administrative process permits a claimant to present new

evidence at each stage of the administrative process. Ashley v. Comm’r, Soc. Sec.

Admin., 707 F. App’x 939, 943 (11th Cir. 2017); Ingram v. Comm’r of Soc. Sec., 496

F.3d 1253, 1261 (11th Cir. 2007); 20 C.F.R. § 404.900(b). Evidence submitted for

the first time to the Appeals Counsel is determined under a Sentence Four analysis.

Ingram, 496 F.3d at 1253. The Appeals Council must consider new and material

evidence that relates to the period on or before the date of the ALJ’s decision and

“must review the case if ‘the administrative law judge’s action, findings, or

conclusion is contrary to the weight of the evidence currently of record.’” Id. (citing

20 C.F.R. §§ 404.970(b), 416.1470(b)); Ashley, 496 F.3d at 943 (citing Washington v.

Comm’r Soc. Sec., 806 F.3d 1317, 1320 (11th Cir. 2015)). New evidence is considered

material and thereby warranting a remand if “there is a reasonable possibility that the

new evidence would change the administrative outcome.” Hyde v. Bowen, 823 F.2d

456, 459 (11th Cir. 1987). In addition, the new evidence must not be cumulative of

other evidence of record. Ashley, 496 F.3d at 943-44. “[W]hen the Appeals Council

erroneously refuses to consider evidence, it commits legal error and remand is

appropriate.” Washington, 806 F.3d at 1321.

Thus, courts employ a two-prong analysis to determine if the Appeals Council

erred when not remanding an action. The first prong is whether the evidence is

“new,” and the second prong is whether the new evidence is “material.” Ingram, 496

F.3d at 1253.

c. Analysis

The parties focus their arguments on the second prong of whether the new

evidence is “material.” Before addressing that issue, the Court must consider

whether the evidence is “new.”

To be considered new, the evidence must relate to the period on or before the

date of the administrative law judge hearing decision. Id. In this case, the ALJ

rendered his decision on October 24, 2018. (Tr. at 15). The evidence submitted to

the Appeals Council constituted medical records from Florida Cancer Specialists

dated March 5, 2018 through September 26, 2018, which was before the ALJ

rendered his decision. (Id. at 115-49). Thus, the evidence submitted to the Appeals

Council constitutes new evidence. The Court now turns to the second prong,

whether the evidence is material.

For evidence to be material, the evidence must demonstrate that the ALJ’s

action, finding, or conclusion is contrary to the weight of the evidence currently of

record. Ingram, 496 F.3d at 1253.

The Appeals Council denied Plaintiff’s request for review. (Tr. at 1).

Regarding the new evidence, the Appeals Council concluded that the “evidence does

not show a reasonable probability that it would change the outcome of the decision.”

(Tr. at 2).

As noted above, the ALJ considered evidence that supported the possibility of

recurrence but found the evidence did not show that recurrence had occurred. (Id. at

27). Although the evidence submitted to the Appeals Council suggested the

possibility of recurrence, the evidence again does not show that the lymphoma has in

fact recurred. (See id. at 115-49). Thus, the Appeals Council properly concluded that

the information was not material. (Id. at 2). Specifically, the ALJ had reviewed

reports suggesting the possibility recurrence and determined it insufficient to

establish that Plaintiff met the criteria of a Listing. (Id. at 22). Thus, because the

new evidence again provided no evidence that the lymphoma had definitively

recurred, the evidence did not provide a reasonable probability that the new evidence

would change the administrative outcome. Accordingly, the Court finds that the

Appeals Council did not err in refusing to consider the new evidence. (See id. at 2).

F. The ALJ’s rejection of Plaintiff’s alleged symptoms and limitations is

supported by substantial evidence.

1. The Parties’ Arguments

In her final argument, Plaintiff contends that “[t]he ALJ erred in finding that

Plaintiff’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.’” (Doc. 24 at 58

(quoting Tr. at 24)). In support, Plaintiff notes that although the ALJ found that

Plaintiff’s “medically determinable impairments could reasonably be expected to

produce the alleged symptoms,” he did not explain why Plaintiff’s impairments did

not support her allegations. (Id. (quoting Tr. at 27)). Plaintiff maintains that the ALJ

imposed mental limitations due to the residual effects of chemotherapy but that “it is

unclear how the ALJ determined that such effects . . . would only limit Plaintiff to

‘simple, routine, and repetitive tasks’ and frequent interaction with others.” (Id.

(citing Tr. at 23)).

Additionally, Plaintiff argues that the ALJ did not address the effect of

Plaintiff’s “musculoskeletal impairments, including her multilevel degenerative

lumbar spondylosis with multilevel neural foraminal stenosis, and small disc bulge at

L4-L5, . . . her moderate to severe facet arthropathy of the lumbosacral spine, . . . or

her right knee osteoarthritis.” (Id. at 58-59 (citing Tr. at 469, 489, 522, 897-900,

1038)). Plaintiff contends that the combination of these impairments required

“significant opioid medications,” and that any reduced pain resulted from high dose

opioid medications. (Id. (citing Tr. at 466-85, 492-504, 506, 510-13, 516-17, 844-45,

847-48, 852-53, 856-57, 1005-08, 1047-49)).

Similarly, Plaintiff asserts that the ALJ did not “properly consider Plaintiff’s

allegations of pain and limitations due to carpal tunnel syndrome.” (Id.). Plaintiff

maintains that the ALJ found it was a non-severe impairment despite treatment notes

indicating that she was symptomatic in January 2015 and October 2015 through

May 2017 and was referred to a surgeon. (Id. (citing Tr. at 21, 468, 471, 703-05, 725-

26, 934-44)). Thus, Plaintiff argues that “given the longstanding positive clinical

findings, the ALJ erred by wholly rejecting Plaintiff’s allegations of hand

limitations.” (Id.).

Finally, Plaintiff contends that the ALJ’s reliance on Plaintiff’s daily activities

does not provide substantial evidence for the ALJ’s decision because Plaintiff’s

ability to “cook once a week, clean counters, and shop twice a month” as well as her

need for assistance in personal care support rather than contradict her allegations.

(Id. at 59-60 (citations omitted)). Thus, Plaintiff argues that the ALJ’s decision is not

supported by substantial evidence and remand is warranted.

In response, Defendant argues that “the ALJ properly found Plaintiff’s

subjective complaints unsupported for the reasons explained throughout the

decision” and that the Court should not disturb such findings if they are supported by

substantial evidence. (Id. at 60 (citations omitted)). In support, Defendant cites the

ALJ’s finding that the treatment notes show “an absence of cancer; imaging scans of

the ankle, knees, or back showing mild and minimal degenerative findings; normal

examination findings related to strength, range of motion, sensation, gait, and

neurovascular functioning; non-tender abdomen; no joint tenderness or swelling; no

muscle tenderness or edema of the extremities; and a negative straight leg raise test.”

(Id. (citing Tr. at 24-26, 508, 511, 515, 519, 522-23, 535, 614, 618, 740, 746, 787, 789,

791, 800, 809, 821-22, 828, 831, 847, 882, 898, 901, 973, 992, 1045, 1050, 1051)).

Additionally, Defendant asserts that the ALJ properly found the subjective

complaints “inconsistent with Plaintiff’s improvement with treatment.” (Id. 60-61

(citing Tr. at 24-26)). Moreover, Defendant contends that the ALJ found the

complaints inconsistent with Plaintiff’s own reports. (Id. at 61 (citing Tr. at 24-26,

614, 740, 746, 787, 789, 791, 800, 566, 616, 992, 1050, 823, 901)). Finally,

Defendant maintains that the ALJ properly found the complaints inconsistent with

Plaintiff’s daily activity and work history. (Id. at 61-62 (citing Tr. at 27, 492, 496,

500, 504, 514, 273-751, 821)). Thus, Defendant argues that the ALJ’s decision is

supported by substantial evidence and the decision should, therefore, be affirmed.

(Id. at 62).

Insofar as Plaintiff argues that the ALJ did not consider the combination of

impairments, Defendant appears to argue that the contention is without merit. (See

id. at 62). Specifically, Defendant notes that the ALJ found that Plaintiff had several

severe and non-severe impairments at step two and at step three considered “an

impairment or combination of impairments” when determining Plaintiff did not

meet the a Listing and noted that he considered “all symptoms” in determine the

RFC. (Id. (citing Tr. at 21-23)). Defendant contends that these statements

demonstrate that the ALJ considered all impairments in combination. (Id. (citing

Wilson, 284 F.3d at 1224-25; Tuggerson-Brown v. Comm’r of Soc. Sec., 572 F. App’x

949, 952 (11th Cir. 2014))). Additionally, Defendant notes that the ALJ discussed

the testimony and medical imaging related to the musculoskeletal symptoms and

discussed normal and abnormal findings related to symptoms. (Id. at 62-62 (citing

Tr. at 21, 23-27)). Thus, Defendant argues that the ALJ considered the conditions.

(Id.).

Ultimately, Defendant argues that Plaintiff merely suggests that the ALJ could

have made a different finding but that the Court does not reweigh the evidence. (Id.

at 62 (citations omitted)). Accordingly, Defendant maintains that because

substantial evidence supports the ALJ’s decision, the decision should be affirmed.

(Id.).

In reply, Plaintiff first argues that she is not asking the Court to reweigh

evidence but rather indicating specific evidence not considered by the ALJ that the

Court may consider in determining whether the ALJ’s decision is supported by

substantial evidence. (Id. (citations omitted)). Additionally, Plaintiff argues that

although Defendant relied on Plaintiff’s work activity to support its argument that

Plaintiff’s complaints are unsupported, the work history is unreliable because it

appears work history carried over information prior to the alleged onset date and that

there is no indication that Plaintiff worked after the alleged onset date. (Id. at 63-64

(citing Tr. at 470, 473, 476, 479, 482, 485, 488, 492, 496, 500)). Additionally,

Plaintiff contends that Defendant’s argument “that impairments present prior to the

alleged onset date could not contribute to Plaintiff’s work-related limitations

thereafter . . . is contrary to the mandate that a claimant’s impairments be considered

in combination for cumulative effect,” that Plaintiff reported a worsen of her

musculoskeletal pain in the months leading up to her alleged onset date, and that the

record documents “a decline in functionality even in a clinical setting.” (Id. (citing

Tr. at 762, 821-22)). Accordingly, Plaintiff argues that Defendant’s argument should

be rejected. (Id.).

2. Applicable Legal Standards

To establish disability based on testimony of pain and other symptoms, a

plaintiff must satisfy two prongs of the following three-part test: “(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, 284 F.3d at 1225 (citing Holt v. Sullivan, 921 F.3d 1221, 1223 (11th Cir.

1991)). After an ALJ has considered a plaintiff’s complaints of pain, the ALJ may

reject them, and that determination will be reviewed to determine if it is based on

substantial evidence. Moreno v. Astrue, 366 F. App’x 23, 28 (11th Cir. 2010) (citing

Marbury v. Sullivan, 957 F.2d 837, 839 (11th Cir. 1992)). If an ALJ discredits the

subjective testimony of a plaintiff, then he must “articulate explicit and adequate

reasons for doing so. Failure to articulate the reasons for discrediting subjective

testimony requires, as a matter of law, that the testimony be accepted as true.”

Wilson, 284 F.3d at 1225 (internal citations omitted). Nevertheless, the Eleventh

Circuit has stated that “[t]he question is not . . . whether [the] ALJ could have

reasonably credited [the claimant’s] testimony, but whether the ALJ was clearly

wrong to discredit it.” Werner v. Comm’r of Soc. Sec., 421 F. App’x 935, 939 (11th Cir.

2011).

The factors an ALJ considers in evaluating a plaintiff’s subjective symptoms

include:

1. The individual’s daily activities;

2. The location, duration, frequency, and intensity of pain or

other symptoms;

3. Factors that precipitate and aggravate the symptoms;

4. The type, dosage, effectiveness, and side effects of any

medication an individual takes or has taken to alleviate pain

or other symptoms;

5. Treatment, other than medication, an individual receives or

has received for relief of pain or other symptoms;

6. Any measures other than treatment an individual uses or

has used to relieve pain or other symptoms (e.g., lying flat

on his or her back, standing for 15 to 20 minutes every hour,

or sleeping on a board); and

7. Any other factors concerning an individual’s functional

limitations and restrictions due to pain or other symptoms.

SSR 96-7p, 1996 WL 374186, at *3 (1996); see also SSR 16-3p, 2016 WL 1119029, at

*7 (2016) (factors nearly identical to SSR 96-7p); Moreno, 366 F. App’x at 28 (citing

20 C.F.R. § 404.1529(c)(3)). “A clearly articulated credibility finding with

substantial supporting evidence in the record will not be disturbed by a reviewing

court.” Foote, 67 F.3d at 1562.

3. Analysis

Here, the ALJ found that Plaintiff’s medically determinable impairments

could reasonably be expected to cause Plaintiff’s alleged symptoms, but her

statements concerning intensity, persistence, and the limiting effects of those

symptoms was not entirely consistent with the medical and other evidence of record

for the reasons he stated in his decision. (Tr. at 24).

In so finding, the ALJ considered Plaintiff’s history of lymphoma and noted

that “[s]he denied any fever, night sweats, abdominal pain, or gastrointestinal

symptoms.” (Id. (citing Tr. at 614)). Additionally, the ALJ noted that while

undergoing chemotherapy, Plaintiff “complained of fatigue, tiredness, muscle

cramps, insomnia, and anxiety, but her tolerability of treatment was well otherwise

and she showed significant interval improvement in disease status consistent with

good response to treatment” and ultimately went into remission in June 29, 2017.

(Id. (citing Tr. at 746, 787, 791, 793)).

As for Plaintiff’s degenerative joint disease of the bilateral knees and right

ankle and degenerative disc disease of the lumbar spine, the ALJ noted that

Plaintiff’s symptoms improved with the use of cold packs and her “examination[s]

showed normal range of motion, full motor strength in all extremities, intact

sensation, negative straight leg raising, and normal gait.” (Id. at (citing Tr. at 551-56;

618, 708, 877, 882, 1051)). The ALJ also noted the medical imaging evidence,

which he summarized:

Medical imaging showed mild and minimal degenerative

changes. An MRI of the knees and right ankle in April 2013

showed knee joint effusion, tissue edema, possible rupture

baker’s cyst versus sprain of the semimembranus tendon,

and mild prepatellar bursitis. Medical imaging of the left

knee in 2012 showed medial meniscus tear [Tr. at 469]

Medical imaging of the right ankle showed an old healed

medial and lateral malleolar fractures, mild posterior tibialis

tendinosis and tenosynovitis, and plantar fasciitis [Tr. at

469]. Medical imaging of the right knee showed marginal

osteophytic spurring and minimal medial joint space

narrowing with no effusion and no fracture [Tr. at 889].

Medical imaging of the lumbar spine in 2014 showed L3-4,

L4-5, and L5-Sl facet arthropathy, and transitional vertebra

at Sl [Tr. at 469]. Medical imaging of the lumbar spine in

September 2015 showed no significant change in multilevel

degenerative lumbar spondylosis, and multilevel mild

neural foraminal stenosis worst on the right at L5-Sl [Tr. at

497, 522-23].

(Id. at 25).

The ALJ continued, noting that Plaintiff was “diagnosed with mild to

moderate left knee pain, minimal to mild right ankle pain, and mild back pain,” and

that while her examination showed a slow, deliberate gate with a slight limp, she did

not use an assistive devise and had no balance disturbance. (Id. (citing Tr. at 820-

26)). Additionally, the ALJ noted that although Plaintiff “had limited range of

motion of the lumbar spine, hips, and knees bilaterally, pain with range of motion of

the left knee, right ankle, and lumbosacral spine, and swelling in the right ankle,” she

had “stable joints, negative straight leg raising bilaterally, full strength in the upper

and lower extremities, and no sensory deficits.” (Id.).

As it relates to Plaintiff’s pain in general, the ALJ also pointed out that

Plaintiff had relief from medication and that on medication she labeled her pain as a

three out of ten. (Id. at 25 (citing Tr. at 954)). Additionally, he noted that “[a]

physical examination showed no joint tenderness or swelling, no muscle tenderness,

and no edema of the extremities.” (Id. (citing Tr. at 992)). Similarly, the ALJ cited

Plaintiff’s denial of “back pain, bone pain, arthralgias, and joint swelling.” (Id.

(citing Tr. at 566, 992, 1050)).

Finally, the ALJ noted Plaintiff’s obesity and considered the cumulative

effects of the obesity in line with the Listings. (Id. at 25). In so doing, the ALJ cited

Plaintiff’s testimony that “her weight did not affect her ability to lift and carry.” (Id.

at 25). Further, the ALJ noted the treatment records indicating that Plaintiff

generally denied shortness of breath or dyspnea on exertion. (Id. at 26 (citing Tr. at

787, 789, 791, 800, 823, 901)).

The ALJ then considered the medical opinions, summarized the findings, and

assigned weights to each. (Id. at 25-27).

Finally, the ALJ considered Plaintiff’s daily activities and determined that

they do not support her subjective complaints. Specifically, the ALJ noted that

Plaintiff “reported she was able to manage her own personal care with help

occasionally, cook once a week, clean counters, and shop twice a month,” that

Plaintiff worked in 2015 despite her musculoskeletal impairments, and that Plaintiff

drove her daughter to the bus station once a week. (Id. at 27).5

Having completed that, the ALJ again summarized his step three findings:

In sum, the above residual functional capacity assessment

is supported by the claimant[’s] degenerative joint disease

of the knees and right ankle, degenerative disc disease of the

lumbar spine, history lymphoma with residual effects from

chemotherapy, and obesity. Physical examinations showed

tenderness of right ankle and lumbar spine and limited

lumbar range of motion, but otherwise were generally

unremarkable. Likewise, a consultative examination

showed she had stable joints, negative straight leg raising

bilaterally, full strength in the upper and lower extremities,

and no sensory deficits. In addition, the claimant reported

she was doing well with pain medication. Medical imaging

of the right ankle, knees, and lumbar spine showed mild and

minimal degenerative changes. Further, the residual

functional capacity is consistent with the opinion of the

State agency medical consultants who also opined that

claimant could perform a reduced range of light work.

While the claimant did not have any mental health therapy,

the mental limitations are supported by the claimant’s pain

symptoms, limited education, and residual effects of

chemotherapy including fatigue, dizziness, and anxiety.

(Id. at 27 (citations omitted)).

The Court finds that the ALJ provided an in-depth analysis of Plaintiff’s

subjective symptoms and considered them thoroughly in the decision. (See id. at 23-

27). The ALJ considered Plaintiff’s daily activities, the nature and intensity of

Plaintiff’s pain and other symptoms, any precipitating and aggravating factors, the

5 To the extent Plaintiff argues in her reply that the work reports are erroneous

because she did not work in 2016, (Doc. 24 at 64), the Court finds the argument

irrelevant. The ALJ relied only on the records that pre-dated the alleged onset date.

(Tr. at 27). It does not appear that Plaintiff denies that she worked in 2015.

effects of Plaintiff’s medications, her treatment for her conditions, and the medical

record as a whole. The ALJ credited some of Plaintiff’s subjective symptoms as

evinced by the limitations in the RFC and provided clearly articulated reasons

supported by substantial evidence of record to reject some of Plaintiff’s other

subjective symptoms.

To the extent Plaintiff attempts to argue that the ALJ did not fully consider

her carpal tunnel, the Court finds this argument meritless. Specifically, the ALJ

noted several times in which the objective medical evidence noted that she had “full

strength in the upper and lower extremities.” (Id. 25-27 (citing Tr. at 522-23, 820-26,

952, 955, 958, 979-80)). Moreover, even assuming arguendo that the ALJ erred in not

specifically addressing the carpal tunnel in step three, it is clear he considered the

complaints when he analyzed the carpel tunnel in steps two and steps four. At step

two, the ALJ concluded that:

With regard to her carpal tunnel syndrome, the claimant

was referred to a hand surgeon but she has yet to see a

specialist ([Tr. at 926-51;] Testimony). Neurological

examinations were normal [Tr. at 877, 941]. A consultative

examination showed no cyanosis, clubbing, or edema of the

extremities, normal range of motion of the wrist and hand

joints, intact hand and finger dexterity, and full grip strength

bilaterally [Tr. at 820-26]. In addition, the claimant

reported she was able to cook, clean counters, shop in stores

and by computer for personal items and groceries, manage

her personal care, care for pets, play scramble every day,

and drive ([Tr. at 371-80, 821]; Testimony).

(Id. at 21). Similarly, the ALJ considered it again in rejecting Plaintiff’s

representative’s objection to the vocational expert’s testimony. (See id. at 29).

Specifically, the ALJ noted that while significant manipulative limitations would

have eroded the occupational base, the ALJ did not impose such limitations for the

same reasons he found Plaintiff’s carpal tunnel was not severe. (Id.). Thus, any error

in not addressing it at step three is harmless because it was fully addressed, and,

therefore, fully considered, throughout the opinion.

In sum, the Court finds that the ALJ did not err in his subjective symptom

determination and this determination is supported by substantial evidence.

Specifically, the ALJ properly considered all the symptoms Plaintiff alleged and

supported his decision not to credit the severity and persistence of such symptoms

with ample and explicit reasons, supported by record citations. Accordingly, the

Court affirms on this issue.

VI. Conclusion

Upon consideration of the parties’ submissions and the administrative record,

the Court finds that substantial evidence supports the ALJ’s decision. Accordingly,

the Court ORDERS that:

1. The decision of the Commissioner is AFFIRMED pursuant to sentence

four of 42 U.S.C. § 405(g).

2. The Clerk of Court is directed to enter judgment accordingly, to

terminate any pending motions and deadlines, and to close the case.

DONE AND ORDERED in Fort Myers, Florida on March 16, 2021.

Mac R. MA

United States Magistrate Judge

Copies furnished to:

Counsel of Record

Unrepresented Parties