The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
FRANK JOSEPH BASILE,
Plaintiff,
v. Case No.: 2:20-cv-651-DNF
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
OPINION AND ORDER
Plaintiff Frank Joseph Basile seeks judicial review of the final decision of the
Commissioner of the Social Security Administration (“SSA”) denying his claim for
a period of disability and disability insurance benefits and for supplemental security
income benefits. The Commissioner filed the Transcript of the proceedings
(hereinafter referred to as “Tr.” followed by the appropriate page number), and the
parties filed a joint legal memorandum setting forth their respective positions. For
the reasons set out 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, Standard of Review, Procedural
History, and the ALJ’s Decision
A. Social Security Eligibility
The law defines disability as the inability to do any substantial gainful activity
by reason of any medically determinable physical or mental impairment which can
be expected to result in death, or which 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(a), 416.905(a). The impairment must be
severe, making the claimant unable to do his previous work, or any other substantial
gainful activity which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A),
1382c(a)(3)(A); 20 C.F.R. §§ 404.1505–404.1511, 416.905–416.911.
B. Standard of Review
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 and is such relevant evidence as a reasonable person would accept as
adequate to support a conclusion. Even if the evidence preponderated against the
Commissioner’s findings, we must affirm if the decision reached is supported by
substantial evidence.” Crawford v. Comm’r, 363 F.3d 1155, 1158 (11th Cir. 2004).
In conducting this review, this Court may not reweigh the evidence or substitute its
judgment for that of the ALJ, but must consider the evidence as a whole, taking into
account evidence favorable as well as unfavorable to the decision. Winschel v.
Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (citation omitted); Foote
v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995); Martin v. Sullivan, 894 F.2d 1520,
1529 (11th Cir. 1990). Unlike findings of fact, the Commissioner’s conclusions of
law are not presumed valid and are reviewed under a de novo standard. Keeton v.
Dep’t of Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994); Maldonado
v. Comm’r of Soc. Sec., No. 20-14331, 2021 WL 2838362, at *2 (11th Cir. July 8,
2021); Martin, 894 F.2d at 1529. “The [Commissioner’s] failure to apply the correct
law or to provide the reviewing court with sufficient reasoning for determining that
the proper legal analysis has been conducted mandates reversal.” Keeton, 21 F.3d at
1066.
The ALJ must follow five steps in evaluating a claim of disability. 20 C.F.R.
§§ 404.1520, 416.920. At the first step, the ALJ must determine whether the claimant
is currently engaged in substantial gainful employment. 20 C.F.R.
§ 404.1520(a)(4)(i), (b); 20 C.F.R. § 416.920(a)(4)(i), (b). At step two, the ALJ must
determine whether the impairment or combination of impairments from which the
claimant allegedly suffers is “severe.” 20 C.F.R. § 404.1520(a)(4)(ii), (c); 20 C.F.R.
§ 416.920(a)(4)(ii), (c). At step three, the ALJ must decide whether the claimant’s
severe impairments meet or medically equal a listed impairment. 20 C.F.R.
§ 404.1520(a)(4)(iii), (d); 20 C.F.R. § 416.920(a)(4)(iii), (d). If the ALJ finds the
claimant’s severe impairments do not meet or medically equal a listed impairment,
then the ALJ must determine whether the claimant has the residual functional
capacity (“RFC”) to perform his past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv),
(e)–(f); 20 C.F.R. § 416.920(a)(4)(iv), (e)–(f).
If the claimant cannot perform his past relevant work, the ALJ must determine
at step five whether the claimant’s RFC permits him to perform other work that
exists in the national economy. 20 C.F.R. § 404.1520(a)(4)(v), (g); 20 C.F.R.
§ 416.920(a)(4)(v), (g). At the fifth step, there are two ways in which the ALJ may
establish whether the claimant is capable of performing other work available in the
national economy. The first is by applying the Medical Vocational Guidelines, and
the second is by the use of a vocational expert. Phillips v. Barnhart, 357 F.3d 1232,
1239-40 (11th Cir. 2004); Atha v. Comm’r, Soc. Sec. Admin., 616 F. App’x 931, 933
(11th Cir. 2015).
The claimant bears the burden of proof through step four. Atha, 616 F. App’x
at 933. If the claimant meets this burden, then the burden temporarily shifts to the
Commissioner to establish the fifth step. Id.; 20 C.F.R. § 404.1520(a)(4)(v), (g); 20
C.F.R. § 416.920(a)(4)(v), (g). If the Commissioner presents evidence of other work
that exists in significant numbers in the national economy that the claimant is able
to perform, only then does the burden shift back to the claimant to prove he is unable
to perform these jobs. Atha, 616 F. App’x at 993.
C. Procedural History
Plaintiff filed an application for a period of disability and disability insurance
benefits on April 10, 2015 and for supplemental security income benefits on
September 14, 2015, alleging disability beginning December 26, 2014. (Tr. 124,
329-349). Plaintiff later amended the alleged onset date to September 14, 2015. (Tr.
36). The applications were denied initially on July 28, 2015, and upon
reconsideration on October 5, 2015. (Tr. 124, 151, 152). Plaintiff requested a hearing
and on November 8, 2016, a hearing was held before Administrative Law Judge
David Begley. (Tr. 82-108). On April 14, 2017, ALJ Begley entered a decision
finding Plaintiff not disabled from September 14, 2015, the amended alleged onset
date, through the date of the decision. (Tr. 156-66).
Plaintiff requested review of the hearing decision, the Appeals Council
granted review, and remanded the case to an Administrative Law Judge. (Tr. 172-
174). The Appeals Council determined ALJ Begley erred in not holding a
supplemental hearing after Plaintiff’s representative requested such a hearing. (Tr.
173).
On remand the case was assigned to Administrative Law Judge Eric
Anscheutz (“ALJ”). The ALJ held another hearing on September 5, 2018. (Tr. 32-
76). On April 17, 2019, the ALJ entered a decision finding Plaintiff not disabled
from September 14, 2015, through the date of the decision. (Tr. 16-24).
Plaintiff again requested review of the decision, but the Appeals Council
denied Plaintiff’s request on July 2, 2020. (Tr. 1-5). Plaintiff initiated the instant
action by Complaint (Doc. 1) filed on August 25, 2020, and the case is ripe for
review. The parties consented to proceed before a United States Magistrate Judge
for all proceedings. (Doc. 21).
D. Summary of ALJ’s Decision
In this matter, the ALJ found Plaintiff met the insured status requirements of
the Social Security Act through December 31, 2019. (Tr. 18). At step one of the
sequential evaluation, the ALJ found that Plaintiff had not engaged in substantial
gainful activity since September 14, 2015, the alleged onset date. (Tr. 18). At step
two, the ALJ found that Plaintiff had the following severe impairments:
“fibromyalgia and migraine headaches.” (Tr. 18). At step three, the ALJ found that
Plaintiff did not have an impairment or combination of impairments that meets or
medically equals the severity of any 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). (Tr. 20).
Before proceeding to step four, the ALJ found that Plaintiff had the following
RFC:
After careful consideration of the entire record, I find that the
claimant has the residual functional capacity to perform light
work as defined in 20 [C.F.R. §§] 404.1567(b) and 416.967(b)
except he can only occasionally climb ladders, ropes, and
scaffolds, but frequently climb ramps and stairs. He can
frequently balance, stoop, kneel, crouch, and crawl. He should
avoid concentrated exposure to workplace hazards, such as
unprotected heights and unshielded rotating machinery, as well
as working with heavily vibrating machinery. He must be
permitted to alternate sitting and standing while remaining at
his workstation.
(Tr. 20-21). At step four, the ALJ found Plaintiff was capable of performing his past
relevant work as a sales manager and a department manager. (Tr. 23). The ALJ also
found this work does not require the performance of work-related activities
precluded by Plaintiff’s RFC. (Tr. 23-24). The ALJ concluded that Plaintiff had not
been under a disability from September 14, 2015, through the date of the decision.
(Tr. 24).
II. Analysis
On appeal, Plaintiff raises two issues: (1) whether the ALJ erred in his step
two and RFC findings; and (2) whether Plaintiff’s work history undermines the
ALJ’s finding with respect to whether his symptoms are consistent with the objective
medical and other evidence in his record. (Doc. 23, p. 21, 33). The Court will address
each issue in turn.
A. Whether the ALJ erred in his step two and RFC findings
Plaintiff contends the ALJ failed to review or discuss the medical evidence
contained in Exhibits 13F through 17F. (Doc. 23, p. 21). By failing to review these
records, Plaintiff claims the ALJ offered no analysis or discussion at step two or in
the RFC of Plaintiff’s multiple medically determinable impairments, such as
bilateral shoulder pain, cervical spinal stenosis, back pain, and tachycardia. (Doc.
23, p. 21).
At step two, an ALJ considers the severity of a claimant’s impairments. 20
C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An impairment or combination of
impairments is not severe “if it does not significantly limit [a claimant’s] physical or
mental ability to do basic work activities” 20 C.F.R. §§ 404.1522(a), 416.922(a). In
other words, a severe impairment is an impairment or combination thereof that
significantly limits a claimant’s abilities to perform basic work activities. See SSR
85-28, 1985 WL 56856, *4 n.1; 20 C.F.R. §§ 404.1520(c), 404.1522(a), 416.920(c),
416.922(a).
The severity of an impairment “must be measured in terms of its effect upon
ability to work, and not simply in terms of deviation from purely medical standards
of bodily perfection or normality.” McCruter v. Bowen, 791 F.2d 1544, 1547 (11th
Cir. 1986). The impairment must also last or be expected to last for a continuous
period of at least 12 months. 20 C.F.R. §§ 404.1520(a)(4)(ii), 404.1509,
416.920(a)(4)(ii), 416.909. The claimant bears the burden at step two of proving that
he has a severe impairment or combination of impairments. O’Bier v. Comm’r of
Soc. Sec. Admin., 338 F. App’x 796, 798 (11th Cir. 2009).
This inquiry “acts as a filter in that the finding of any severe impairment ... is
enough to satisfy the requirement of step two and allow the ALJ to proceed to step
three.” Ball v. Comm’r of Soc. Sec. Admin., 714 F. App’x 991, 993 (11th Cir. 2018)
(internal quotations omitted). “Nothing requires that the ALJ must identify, at step
two, all of the impairments that should be considered severe.” Heatly v. Comm’r of
Soc. Sec., 382 F. App’x 823, 825 (11th Cir. 2010). If any impairment or combination
of impairments qualifies as “severe,” step two is satisfied and the claim advances to
step three. Gray v. Comm’r of Soc. Sec., 550 F. App’x 850, 852 (11th Cir. 2013)
(citing Jamison v. Bowen, 814 F.2d 585, 588 (11th Cir. 1987)). “[B]eyond the second
step, the ALJ must consider the entirety of the claimant’s limitations, regardless of
whether they are individually disabling.” Griffin v. Comm’r of Soc. Sec., 560 F.
App’x 837, 841-842 (11th Cir. 2014) (internal citations omitted).
With this standard in mind, even if the ALJ should have characterized
Plaintiff’s cervical spinal stenosis, bilateral shoulder pain, thoracic spine pain, and
tachycardia/carotid bruit as severe impairments, any error is harmless because the
ALJ characterized other impairments – fibromyalgia and migraine headaches – as
severe. (Tr. 18). The ALJ then advanced to step three of the sequential evaluation.
See Ball, 714 F. App’x at 993. With step two satisfied, the issue then becomes
whether the ALJ considered all of Plaintiff’s limitations in assessing the RFC.
The ALJ reviewed Plaintiff’s testimony concerning his impairments. The ALJ
noted that Plaintiff complained of headaches, migraines, shoulder issues, depression,
anxiety with increased heart rate, trouble sleeping, neck pain, and fibromyalgia. (Tr.
21). He discussed Plaintiff’s multiple tender trigger points, but noted Plaintiff
generally had normal motor strength, muscle tone, gait, station, ambulation, deep
tendon reflexes, coordination, sensation, and generally normal range of motion with
reduced range of motion on occasion. (Tr. 22). The ALJ also considered Plaintiff’s
acupuncture care, which helped with his pain level. (Tr. 22).1
A state agency medical consultant listed Plaintiff’s severe impairments as
spine disorders, fibromyalgia, and dysfunction of the major joints, and non-severe
impairments as obesity, disorders of gastrointestinal system, central nervous system,
recurrent arrhythmias, affective disorders, and anxiety disorders. (Tr. 130). Even
though the ALJ gave partial weight to this opinion, he adopted all the medical
consultant’s limitations including: a limitation to light work; lifting 20 pounds
occasionally and 10 pounds frequently; standing/walking about 6 hours in an 8-hour
workday; sitting about 6 hours in and 8-hour workday; frequently climbing ramps,
stairs; occasionally climbing ladders, ropes, and scaffolds; frequently balancing,
stooping, kneeling crouching, and crawling;2 and avoiding concentrated exposure to
vibration and workplace hazards. (Compare Tr. 20-21, with Tr. 133-34). The ALJ
1 The records for acupuncture care are located in Exhibit 17F. The Court finds the ALJ did review
records beyond Exhibit 12F.
2 The state agency medical consultant explained that the postural limitations related to Plaintiff’s
cardiac issue of infrequent palpitations, which remain under control with strict abstinence from
any alcohol use. (Tr. 134)
even added an additional limitation of allowing for a sit/stand option while
remaining at a workstation. (Tr. 21).
In the decision, the ALJ discussed Plaintiff’s impairments whether severe or
not and, in the RFC, he adopted the limitations of the state agency medical consultant
who listed all the impairments even the impairments Plaintiff claims the ALJ
ignored. The ALJ also added an additional limitation to allow for a sit/stand option.
Plaintiff has not alleged or cited evidence of record that supports including any
additional limitations in the RFC from these or any of Plaintiff’s alleged
impairments. For these reasons, even if the ALJ erred at step two by not including
additional severe impairments, the error was harmless because the ALJ discussed
additional impairments in the decision and included limitations in the RFC for all of
Plaintiff’s impairments.
B. Whether Plaintiff’s work history undermines the ALJ’s finding
with respect to whether Plaintiff’s symptoms are consistent with
the objective medical and other evidence in his record
Plaintiff argues the ALJ erred by not discussing Plaintiff’s exemplary work
history when finding Plaintiff’s subjective statements not entirely consistent with the
evidence of record. (Doc. 23, p. 33-35; Tr. 21). A claimant may establish that he is
disabled through his own testimony of pain or other subjective symptoms. Ross v.
Comm’r of Soc. Sec., 794 F. App’x 858, 867 (11th Cir. 2019) (citing Dyer v.
Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005)). In such a case, a claimant must
establish:
“(1) evidence of an underlying medical condition and either (2)
objective medical evidence that confirms the severity of the
alleged pain arising from that condition or (3) that the
objectively determined medical condition is of such a severity
that it can be reasonably expected to give rise to the alleged
pain.”
Id. (quoting Dyer, 395 F.3d at 1210). When evaluating a claimant’s testimony, the
ALJ should consider: “(1) the claimant’s daily activities; (2) the ‘duration,
frequency, and intensity’ of the claimant’s symptoms; (3) ‘[p]recipitating and
aggravating factors’; (4) the effectiveness and side effects of any medications; and
(5) treatment or other measures taken by the claimant to alleviate symptoms.” Id.
(quoting 20 C.F.R. §§ 404.1529(c), 416.929(c)(3)). The ALJ must consider these
factors given all of the evidence of record. Id. And if the ALJ discredits this
testimony, then the ALJ “‘must clearly articulate explicit and adequate reasons for’
doing so.” Id. (quoting Dyer, 395 F.3d at 1210).
The ALJ may consider the consistency of the claimant’s statements along with
the rest of the record to reach this determination. Id. “A clearly articulated credibility
finding with substantial supporting evidence in the record will not be disturbed by a
reviewing court.” Foote v. Chater, 67 F.3d 1553, 1562 (11th Cir. 1995)); see also
Mitchell v. Comm’r of Soc. Sec., 771 F.3d 780, 782 (11th Cir. 2014). And an ALJ’s
decision will be affirmed as long as the decision is not a “broad rejection which is
not enough to enable [a reviewing court] to conclude that the ALJ considered [the
claimant’s] medical condition as a whole.” Dyer, 395 F.3d at 1211 (quotation and
backets omitted).
Here, Plaintiff does not directly challenge the ALJ’s subjective symptoms
findings, but rather argues that the ALJ should have considered his exemplary work
history and this omission warrants remand. (Doc. 23, p. 33-35). At the hearing, the
ALJ asked Plaintiff extensively about his work history. (Tr. 36-41). The ALJ asked
about the job requirements for his position as jewelry salesman, assistant store
manager, and counter manager. (Tr. 36-41). The ALJ was therefore aware of
Plaintiff’s work history. While Plaintiff cites 20 C.F.R. § 404.1529(c)(3), and SSRs
96-8p3 and 16-3p, claiming these regulations require an ALJ to consider a claimant’s
willingness to work as part of assessing subjective symptoms, these provisions do
not require the ALJ to consider work history as a favorable factor. See 20 C.F.R. §
1529(c)(3) (“We will consider all of the evidence presented, including information
about your prior work record, your statements about your symptoms, evidence
submitted by your medical sources, and observations by our employees and other
persons.”).
3 SSR 96-7p was superseded by SSR 16-3p effective March 28, 2016.
As a district court observed, “‘the Eleventh Circuit has not had occasion to
rule on the issue’ of whether an ALJ’s failure to consider a claimant’s ‘lengthy and
consistent work record’ in evaluating a claimant’s credibility is erroneous.” Mahon
v. Comm’r of Soc. Sec., No. 8:16-cv-1462-T-JSS, 2017 WL 3381714, at *10 (M.D.
Fla. Aug. 7, 2017) (citing Lafond v. Comm’r of Soc. Sec., No. 6:14-CV-1001-ORL-
DAB, 2015 WL 4076943, at *9 (M.D. Fla. July 2, 2015)). Here, the ALJ clearly
articulated a rationale with substantial supporting evidence for his finding that
Plaintiff’s subjective symptoms are not entirely consistent with the evidence of
record. (Tr. 21). The ALJ found Plaintiff’s migraine headaches do not support
additional limitations because Plaintiff had not been referred to a neurologist and
had no imaging of the brain. (Tr. 21). As discussed above, the ALJ acknowledged
Plaintiff had multiple tender trigger points, but the examination findings were
generally normal. (Tr. 22). And a medical record indicated that Plaintiff’s
fibromyalgia was stable under his medication regimen. (Tr. 22). The ALJ considered
Plaintiff’s medical condition as a whole and therefore the Court must affirm the
decision. See Dyer, 395 F.3d at 1211. Thus, remand for the Commissioner to
reconsider Plaintiff’s work history is unwarranted.
II. Conclusion
The decision of the Commissioner is AFFIRMED. The Clerk of Court is
directed to enter judgment consistent with this opinion, terminate all deadlines, and
close the case.
DONE and ORDERED in Fort Myers, Florida on September 3, 2021.
UNITED STATES MAGISTRATE JUDGE
Copies furnished to:
Counsel of Record
Unrepresented Parties