# Hines v. Commissioner of Social Security

> District Court, M.D. Florida · August 30, 2021

URL: https://www.frixlaw.com/law-library/cases/10108297

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** August 30, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10108297

## How later opinions describe it (automated extraction)

- noting that, even if “the record . . . contain[s] some evidence that is contrary to the ALJ’s determination, [the court] is not permitted to weigh the importance attributed to the medical evidence”

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

RICHARD HINES,

Plaintiff,

v. Case No. 8:20-cv-605-CPT

KILOLO KJAKAZ,
Acting Commissioner of Social Security,1

Defendant.
___________________________________/

O R D E R

The Plaintiff seeks judicial review of the Commissioner’s denial of his claim for
Supplemental Security Income (SSI). For the reasons discussed below, the
Commissioner’s decision is affirmed.
I.
The Plaintiff was born in 1970, has a high school education, and has no past
relevant work experience. (R. 22, 33–34). In February 2017, the Plaintiff applied for
SSI, alleging disability as of February 1, 2017, due to hypertension, cardiomyopathy,
cardiac catheterization, parotid gland tumor, and acute congestive heart failure. (R.

1 Kilolo Kijakazi became the Acting Commissioner of Social Security on July 9, 2021. Pursuant to
Federal Rule of Civil Procedure 25(d), Ms. Kijakazi is substituted for Commissioner Andrew M. Saul
as the Defendant in this suit.
164–72, 188). The Social Security Administration (SSA) denied the Plaintiff’s
application both initially and on reconsideration. (R. 63, 77).
At the Plaintiff’s request, an Administrative Law Judge (ALJ) conducted a

hearing on the matter in January 2019. (R. 30–53). The Plaintiff was accompanied
by a non-attorney representative at that hearing and testified on his own behalf. (R.
32–45). A vocational expert (VE) also testified. (R. 45–51).
In a decision issued in April 2019, the ALJ found that the Plaintiff: (1) had not
engaged in any substantial gainful activity since February 24, 2017; (2) had the severe

impairments of hypertension, cardiomyopathy, and congestive heart failure; (3) did
not, however, have an impairment or combination of impairments that met or
medically equaled the severity of any of the listed impairments; (4) had the residual
functional capacity (RFC) to perform a restricted range of sedentary work; and (5)
based on the VE’s testimony, could not engage in his past relevant work but was

capable of making a successful adjustment to other jobs that exist in significant
numbers in the national economy. (R. 17–23). In light of these findings, the ALJ
concluded the Plaintiff was not disabled. (R. 23).
The Appeals Council denied the Plaintiff’s subsequent request for review. (R.
1–3). Accordingly, the ALJ’s decision became the final decision of the Commissioner.

II.
The Social Security Act defines disability as the “inability to engage in any
substantial gainful activity by reason of any medically determinable physical or mental
impairment . . . which has lasted or can be expected to last for a continuous period of
not less than 12 months.” 42 U.S.C. § 423(d)(1)(A); see also 20 C.F.R. § 416.905(a).2
A physical or mental impairment under the Act “results from anatomical,
physiological, or psychological abnormalities which are demonstrable by medically

acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3).
To determine whether a claimant is disabled, the Social Security Regulations
(Regulations) prescribe “a five-step, sequential evaluation process.” Carter v. Comm’r
of Soc. Sec., 726 F. App’x 737, 739 (11th Cir. 2018) (per curiam) (citing 20 C.F.R.
§ 404.1520(a)(4)).3 Under this process, an ALJ must assess 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) has the RFC to engage in his past relevant work; and
(5) can perform other jobs in the national economy given his RFC, age, education, and

work experience. Id. (citing Phillips v. Barnhart, 357 F.3d 1232, 1237 (11th Cir. 2004);
20 C.F.R. § 416.920(a)(4)). Although the claimant has the burden of proof through
step four, the burden temporarily shifts to the Commissioner at step five. Goode v.
Comm’r of Soc. Sec., 966 F.3d 1277, 1279 (11th Cir. 2020) (quoting Hale v. Bowen, 831
F.2d 1007, 1011 (11th Cir. 1987)); Sampson v. Comm’r of Soc. Sec., 694 F. App’x 727,

734 (11th Cir. 2017) (per curiam) (citing Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir.
1999)). If the Commissioner carries that burden, the claimant must then prove that he

2 Unless otherwise indicated, citations to the Code of Federal Regulations are to the version in effect
at the time of the ALJ’s decision.
3 Unpublished opinions are not considered binding precedent but may be cited as persuasive authority.
11th Cir. R. 36-2.
cannot engage in the work identified by the Commissioner. Goode, 966 F.3d at 1279.
In the end, “the overall burden of demonstrating the existence of a disability . . . rests
with the claimant.” Washington v. Comm’r of Soc. Sec., 906 F.3d 1353, 1359 (11th Cir.

2018) (quoting Doughty v. Apfel, 245 F.3d 1274, 1280 (11th Cir. 2001)).
A claimant who does not prevail at the administrative level may seek judicial
review in federal court provided the Commissioner has issued a final decision on the
matter after a hearing. 42 U.S.C. § 405(g). Judicial review is limited to determining

whether the Commissioner applied the correct legal standards and whether the
decision is supported by substantial evidence. Id.; Hargress v. Soc. Sec. Admin., Comm’r,
883 F.3d 1302, 1305 n.2 (11th Cir. 2018) (per curiam) (citation omitted). Substantial
evidence is “more than a mere scintilla” and is “such relevant evidence as a reasonable
person would accept as adequate to support a conclusion.” Biestek v. Berryhill, 587 U.S.

___, 139 S. Ct. 1148, 1154 (2019) (citations and quotations omitted). In evaluating
whether substantial evidence supports the Commissioner’s decision, the Court “may
not decide the facts anew, make credibility determinations, or re-weigh the evidence.”
Carter, 726 F. App’x at 739 (citing Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir.
2005)). “[W]hile the court [accords] deference to the [Commissioner’s] factual

findings, no such deference is given to [his] legal conclusions.” Keel-Desensi v. Berryhill,
2019 WL 1417326, at *2 (M.D. Fla. Mar. 29, 2019) (citing Keeton v. Dep’t of Health &
Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994)).
III.
The Plaintiff raises four challenges on appeal: (1) the ALJ improperly
discounted the Plaintiff’s subjective complaints; (2) the ALJ did not appropriately

weigh the opinions of the Plaintiff’s treating cardiologist; (3) the ALJ’s hypothetical
question to the VE did not include all of the Plaintiff’s limitations; and (4) the ALJ
failed to develop the record regarding whether the Plaintiff met the applicable listing.4
(Doc. 26 at 12–19, 24–26, 28–31, 33–36). Each of these challenges will be addressed
in turn.

A.
The evaluation of a claimant’s subjective complaints is governed by the “pain
standard.” Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005) (per curiam). Under
this standard, a claimant must show “(1) evidence of an underlying medical condition
and either (2) objective medical evidence that confirms the severity of the alleged pain

arising from the condition or (3) that the objectively determined medical condition is
of such severity that it can be reasonably expected to give rise to the alleged pain.” Id.
(quoting Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991) (per curiam)).
If a claimant meets the pain standard, the ALJ must then assess the intensity

and persistence of the claimant’s symptoms to determine how they restrict his capacity
to work. 20 C.F.R. § 416.929(c)(3). The considerations relevant to this analysis
include: (1) the claimant’s daily activities; (2) the location, duration, frequency, and

4 The Court has reordered the Plaintiff’s arguments for purposes of its analysis.
intensity of the claimant’s pain or other symptoms; (3) precipitating and aggravating
factors; (4) the type, dosage, effectiveness, and side effects of any medication the
claimant takes or has taken to alleviate his pain or other symptoms; (5) treatment

(other than medication) the claimant receives or has received for relief of his pain or
other symptoms; (6) any measures the claimant uses or has used to relieve his pain or
other symptoms; and (7) other factors concerning the claimant’s functional limitations
due to pain or other symptoms. Id.
After evaluating “a claimant’s complaints of pain, the ALJ may reject them as

not creditable, and that determination will be reviewed [on appeal] for substantial
evidence.” Marbury v. Sullivan, 957 F.2d 837, 839 (11th Cir. 1992) (per curiam) (citing
Wilson v. Heckler, 734 F.2d 513, 517 (11th Cir. 1984)). The ALJ, however, “need not
cite particular phrases or formulations” in performing this assessment, so long as the

reviewing court can be satisfied that the ALJ “considered [the claimant’s] medical
condition as a whole.” Chatham v. Comm’r of Soc. Sec., 764 F. App’x 864, 868 (11th
Cir. 2019) (per curiam) (internal quotation marks and citation omitted); see also Stowe
v. Soc. Sec. Admin., Comm’r, ___ F. App’x ___, 2021 WL 2912477, at *4 (11th Cir. July
12, 2021) (per curiam) (explaining that if an ALJ does not identify specific and

adequate reasons for rejecting a claimant’s pain testimony, “the record must be
obvious as to the [ALJ’s] credibility finding”) (citing Foote v. Chater, 67 F.3d 1553,
1561–62 (11th Cir. 1995) (per curiam)). A reviewing court will not disturb a clearly
articulated credibility finding made by an ALJ that is buttressed by substantial
evidence. Foote, 67 F.3d at 1562 (citation omitted).
Here, the Plaintiff testified at the hearing that he experienced a variety of
symptoms as a result of his cardiac impairments and the medications he took for those
issues, including dizziness, blurred vision, fatigue, and frequent bouts of diarrhea. (R.

38). In fact, the Plaintiff stated that after he takes one particular medication in the
morning, “basically every 20 minutes I’m going to the bathroom [to urinate].” (R. 42).
The Plaintiff also complained to the ALJ about heart problems and chest palpitations.
(R. 19).
The ALJ referenced these complaints in his decision, as well as the Eleventh

Circuit’s pain standard and his duty to account for “all symptoms and the extent to
which th[o]se symptoms [could] reasonably be accepted as consistent with the
objective medical evidence and other evidence, based on the [applicable legal
requirements].” (R. 19) (citing of 20 C.F.R. § 416.929; Social Security Ruling (SSR)
16-3p). The ALJ also rendered an express credibility determination regarding the

Plaintiff’s reported symptoms, finding:
the [Plaintiff’s] medically determinable impairments could reasonably be
expected to cause the alleged symptoms; however, the [Plaintiff’s]
statements concerning the intensity, persistence and limiting effects of
[his] symptoms [were] not entirely consistent with the medical evidence
and other evidence in the record for the reasons explained in this
decision.

(R. 19–20).
In support of this assessment, the ALJ summarized medical records showing
that, although the Plaintiff was diagnosed in February 2017 with—among other
conditions—severe left ventricular dysfunction with an ejection fraction of under 30%,
he was prescribed a wearable defibrillator and was shortly thereafter described by his
treating cardiologist, Dr. Lingappa Amarchand, as having a regular heart rate and
rhythm with no murmurs, normal motor strength, and no edema. R. 20. The ALJ

also noted that, while the Plaintiff suffered from hypertension, treatment notes
indicated this condition was controlled with medication, his chest pain was stable, and
his shortness of breath and palpitations were improved with treatment. Id. The ALJ
additionally recounted “similar physical examinations [by Dr. Amarchand] for the
remainder of the period at issue,” stating:

Dr. Amarchand reported the [Plaintiff] had regular heart rate and rhythm
with no murmur, rubs, or gallops, 5/5 muscle strength against resistance,
no edema, normal peripheral pulses, and he moved all of his extremities
well. Dr. Amarchand also consistently noted that the [Plaintiff’s]
shortness of breath and congestive heart failure were improving,
hypertension was controlled, and dilated cardiomyopathy was stable. In
late 2017, the [Plaintiff] reported his palpitations were controlled, chest
pain was stable, and shortness of breath was mild. As the [Plaintiff’s]
treatment progressed, he stated that his palpitations were off and on,
occasional, improved, and/or less frequent, his chest pain was stable, and
he either denied shortness of breath or described it as mild.

Id. (citing exhibits 4F, 8F, and 9F).
The Plaintiff concedes that Dr. Amarchand’s records reflect that his “condition
was stable[,] and [that] his symptoms had improved” since he was prescribed the
wearable defibrillator. (Doc. 26 at 16). The Plaintiff also admits that Dr. Amarchand’s
treatment notes conflict with the Plaintiff’s own allegations during the claims process.
Id. The Plaintiff nonetheless asserts, however, that the ALJ erred in relying on the
inconsistencies between Dr. Amarchand’s documentation and the Plaintiff’s
subjective complaints—particularly those relating the side effects from his
medications—in discounting the Plaintiff’s testimony. Id. This contention fails.
At the hearing, the ALJ questioned the Plaintiff regarding the symptoms caused

by his medications (R. 38, 42) and reviewed that testimony in his decision in
connection with his credibility finding. See (R. 19) (describing the Plaintiff’s
allegations that “he was unable to work because he was chronically fatigued and had
shortness of breath, dizziness, blurred vision, and diarrhea secondary to his heart
problems and medication”). The ALJ also stated, as noted, that he considered the

medical evidence and other evidence of record in accordance with the applicable law
and found that it did not wholly conform to the Plaintiff’s subjective complaints for
the reasons set forth in his decision. Id. at 19–20 (citing 20 C.F.R. § 416.929 and SSR
16-3p). These findings are adequate to show that the ALJ properly considered the

Plaintiff’s subjective complaints, including those stemming from his medication side
effects. See Robinson v. Comm’r of Soc. Sec., 649 F. App’x 799, 802 (11th Cir. 2016)
(holding that the ALJ satisfied her duty to consider alleged medication side effects,
even though she did not specifically mention those side effects in her decision, in part,
by stating that she considered all the claimant’s symptoms based on the requirements

of the applicable regulation and SSR).
Notably, the Plaintiff does not cite to any record evidence demonstrating that
he complained of his medication side effects to Dr. Amarchand. Walker v. Comm’r of
Soc. Sec., 404 F. App’x 362, 366–367 (11th Cir. 2010) (per curiam) (holding that an
ALJ did not have a duty to elicit further testimony regarding a claimant’s medication
side effects, in part, because she did not report those side effects to her treating
physicians). To the contrary, the Plaintiff routinely denied symptoms like fatigue, light
headedness, and dizziness, see e.g., (R. 341, 344, 373, 376, 379, 382, 385, 389), and Dr.

Amarchand did not identify any side effect symptoms when asked to describe same in
an RFC questionnaire he completed in October 2017 (R. 367). See Werner v. Comm’r
of Soc. Sec., 421 F. App’x 935, 939 (11th Cir. 2011) (per curiam) (“[A] claimant’s failure
to report side effects to his physicians is an appropriate factor for the ALJ to consider

in evaluating whether a claimant’s alleged symptoms are consistent with the record.”).
Although the Plaintiff now argues that his medications cause “the exact side
effects that [he] complained of,” including frequent urination and fatigue (Doc. 26 at
18), the Plaintiff does not reference any parts of the record to buttress those statements.
Regardless, even accepting the Plaintiff’s representations as true, he fails to point to

any evidence relating to medication side effects that contradicts the ALJ’s finding as
to his credibility. See Werner, 421 F. App’x at 938 (“Mere lists of potential side effects
do not establish that a claimant in fact experienced such side effects.”); Walker, 404 F.
App’x at 367 (holding that the claimant’s submission to the Appeals Council of
pharmacological information revealed “only that the symptoms [the claimant] testified

she experienced were known sometimes to be caused by the medications she was
taking [but] did not contradict the ALJ’s finding that [the claimant’s] testimony as to
the severity of her symptoms (including her side effects) was not entirely credible”).
The Plaintiff also avers that the ALJ erred by failing to discount his subjective
complaints on the grounds that Dr. Amarchand’s treatment notes did not reference
any work-related restrictions. (Doc. 26 at 16–17). In support of this argument, the
Plaintiff cites Sampson v. Comm’r of Soc. Sec., 694 F. App’x 727 (11th Cir. 2017) (per
curiam). In that case, the Eleventh Circuit observed:

[t]he primary function of medical records is to promote communication
and recordkeeping for health care personnel. It is not to provide evidence
for disability determinations. The mere fact that a doctor’s judgments
about a claimant’s work-related limitations are not expressly reflected in
treatment notes does not necessarily mean that the judgments are
inconsistent with the treatment notes.

Sampson, 694 F. App’x at 735–36 (citations and quotations omitted).
Based on this reasoning, the court in Sampson found that the ALJ improperly
assigned little weight to a treating physician’s opinion regarding the claimant’s ability
to stand and walk during a workday solely because the doctor did not advise the
claimant to curb those activities in his treatment notes. 694 F. App’x at 735. The
court additionally pointed to the fact that the ALJ did not otherwise explain, nor could
the court discern, why the treating physician’s findings did not support the physician’s
opinion. Id. at 736.
Sampson does not help the Plaintiff here. Unlike in Sampson, the ALJ did not
infer that the Plaintiff’s reported symptoms were not credible because Dr.
Amarchand’s notes did not include an opinion regarding the Plaintiff’s ability to work.
Instead, the ALJ determined that Dr. Amarchand’s records, which reflected that the
Plaintiff’s condition was stable, were inconsistent with the severity of the Plaintiff’s
subjective complaints. (R. 20).
In addition to the above arguments, the Plaintiff contends that because Dr.
Amarchand’s “treatment notes are almost exactly the same [for] each visit,” the
discrepancies between those records and the Plaintiff’s complaints “could have been

due to the fact that Dr. Amarchand was not documenting from visit to visit [the
Plaintiff’s] subjective reports.” (Doc. 26 at 16). The problem with this argument is
that it relies on speculation and lacks any factual support in the record, particularly
since Dr. Amarchand’s records consistently reflect updated notations at each
appointment. In October 2017, for example, Dr. Amarchand described the Plaintiff’s

palpitations as “off and on” and his shortness of breath as both improving and—in the
Plaintiff’s words—“mild.” (R. 378–79). Similarly, at the next appointment in January
2018, Dr. Amarchand characterized the Plaintiff’s palpitations as “less frequent,” and
stated that the Plaintiff denied shortness of breath. (R. 375–76).
The Plaintiff’s final argument relative to the ALJ’s evaluation of his subjective

complaints is that the ALJ failed to consider whether the limited nature of the
Plaintiff’s daily activities—such as resting, elevating his legs, and light housework—
impacted the severity of the symptoms he reported to Dr. Amarchand. Doc. 26 at 17–
18. The contention rests on the assumption that an increase in the Plaintiff’s activities
would have exacerbated his symptoms. Without more, however, such conjecture

cannot serve as a basis for reversal. See Manzo v. Comm’r of Soc. Sec., 408 F. App’x 265,
269 (11th Cir. 2011) (per curiam) (declining the claimant’s invitation to guess—
without a basis in the record—as to why her impairment imposed greater limitations
than the ALJ assessed); see also Thomas v. Berryhill, 2018 WL 4558193, at *3 (N.D. Fla.
Sept. 21, 2018) (“[A claimant] cannot establish reversible error through his
speculation, or unsupported conclusions, regarding limitations that might be caused
by his impairments.”).5

In sum, notwithstanding the Plaintiff’s arguments to the contrary, the ALJ
sufficiently addressed his subjective complaints and provided “specific and adequate
reasons” supported by substantial evidence for rejecting the Plaintiff’s testimony.
Stowe, 2021 WL 2912477, at *4. Remand on this basis is therefore not warranted. See
Werner, 421 F. App’x at 939 (“The question is not . . . whether [the] ALJ could have

reasonably credited [the claimant’s] testimony, but whether the ALJ was clearly wrong
to discredit it.”).
B.
The Plaintiff second challenge is that the ALJ improperly rejected Dr.

Amarchand’s medical opinions based on a conflict between those opinions and Dr.
Amarchand’s own records. This challenge likewise fails.
It is well established that, in rendering a disability determination, an ALJ “must
consider all medical opinions in a claimant’s case record, together with other relevant
evidence.” McClurkin v. Soc. Sec. Admin., 625 F. App’x 960, 962 (11th Cir. 2015) (per

curiam) (citing 20 C.F.R. § 404.1527(b)). Medical opinions are statements from
physicians or other acceptable medical sources “‘that reflect judgments about the

5 The Plaintiff’s theory is also contradicted by Dr. Amarchand’s August 2018 note that he “discussed
[with the Plaintiff] the benefits of at least a few hours each week of moderate aerobic exercise.” (R.
388–90).
nature and severity of [the claimant’s] impairment(s), including [the claimant’s]
symptoms, diagnosis and prognosis, what [the claimant] can still do despite [his]
impairment(s), and [the claimant’s] physical or mental restrictions.’” Winschel v.

Comm’r of Soc. Sec., 631 F.3d 1176, 1178–79 (11th Cir. 2011) (quoting 20 C.F.R.
§ 404.1527(a)(2), 416.927(a)(2)). An ALJ must state with particularity the weight
given to a medical opinion and the reasons therefor. Lawton v. Comm’r of Soc. Sec., 431
F. App’x 830, 833 (11th Cir. 2011) (per curiam) (citing Sharfarz v. Bowen, 825 F.2d 278,

279 (11th Cir. 1987)).
The Regulations set forth three tiers of medical opinions: (1) treating physicians;
(2) non-treating, examining physicians; and (3) non-treating, non-examining
physicians. Himes v. Comm’r of Soc. Sec., 585 F. App’x 758, 762 (11th Cir. 2014) (per
curiam) (citing 20 C.F.R. §§ 404.1527(a)(c)(1)–(2); id. at § 416.927(c)(1)-(2)). Treating

physicians’ opinions are accorded the most deference because there is a greater
likelihood that these healthcare providers will “be able to give a more complete picture
of the [claimant’s] health history.” Schink v. Comm’r of Soc. Sec., 935 F.3d 1245, 1259
(11th Cir. 2019) (per curiam) (citing 20 C.F.R. § 404.1527(c)(2)). As a result, the ALJ
must give the opinion of a treating physician substantial or considerable weight unless

the ALJ clearly articulates reasons—buttressed by substantial evidence—that establish
“good cause” for discounting that opinion. Hargress, 883 F.3d at 1305–06; Phillips, 357
F.3d at 1241. “Good cause exists when (1) the treating physician’s opinion was not
bolstered by the evidence, (2) the evidence supported a contrary finding, or (3) the
treating physician’s opinion was conclusory or inconsistent with his or her own
medical records.” Schink, 935 F.3d at 1259 (citations omitted). In the end, irrespective
of the nature of a physician’s relationship with a claimant, an ALJ “is free to reject the
opinion of any physician when the evidence supports a contrary conclusion.” Huntley

v. Soc. Sec. Admin., Comm’r, 683 F. App’x 830, 832 (11th Cir. 2017) (per curiam) (citing
Sryock v. Heckler, 764 F.2d 834, 835 (11th Cir. 1985)).
In this case, Dr. Amarchand submitted a medical source statement in July 2017
and—as alluded to previously—an RFC questionnaire in October 2017. (R. 352–55,

365–70). The ALJ assigned “little weight” to both, describing them as “completely
inconsistent with Dr. [Amarchand’s] treatment records.” (R. 21). In support of this
assessment, the ALJ stated:
Dr. [Amarchand] treated the [Plaintiff] throughout the period at issue
and consistently documented normal physical examinations with regular
heart rate and rhythm with no murmur, rubs, or gallops, 5/5 muscle
strength against resistance, no edema, normal peripheral pulses, and he
moved all of his extremities well. In addition, Dr. [Amarchand] regularly
reported that the [Plaintiff’s] shortness of breath and congestive heart
failure were improving, hypertension was controlled, and dilated
cardiomyopathy was stable.

Id. (citations omitted).
The Plaintiff admits the ALJ correctly identified a disconnect between Dr.
Amarchand’s opinions and the doctor’s own records. The Plaintiff nonetheless
surmises again that it is “very likely” the reason Dr. Amarchand’s notes do not reflect
the severity of the Plaintiff’s symptoms is because the Plaintiff “spent all of his time
resting and avoiding any physical activity that would bring on symptoms. . .” Doc. 26
at 28–29. For the reasons set forth above, such unsupported speculation does not
provide grounds for remand. See Manzo, 408 F. App’x at 269; Thomas, 2018 WL
4558193, at *3.

The Court is also not persuaded by the Plaintiff’s contention that Dr.
Amarchand’s treatment notes do not “conclusively counter” his opinions. (Doc. 26 at
30). As an initial matter, this argument appears inconsistent with the Plaintiff’s own
acknowledgement that Dr. Amarchand’s treatment notes and opinions are
contradictory. Id. at 28–29. Even were that not the case, the Plaintiff fails to identify

any evidence in the record that demonstrates the ALJ’s finding of a conflict between
Dr. Amarchand’s notes and his opinions is insufficiently supported. Lawton, 431 F.
App’x at 833 (noting that, even if “the record . . . contain[s] some evidence that is
contrary to the ALJ’s determination, [the court] is not permitted to weigh the

importance attributed to the medical evidence”).
The Plaintiff’s final argument relative to the ALJ’s evaluation of Dr.
Amarchand’s assessments is that “the ALJ should have given great weight to [those]
opinions in light of the severity of [the Plaintiff’s] heart disease.” (Doc. 26 at 29). The
Plaintiff, however, does not cite any legal authority that such an argument serves as a

basis for remand here. In any event, the ALJ explicitly recognized the seriousness of
the Plaintiff’s heart condition, stating that testing “revealed that the [Plaintiff] has
congestive heart failure and cardiomyopathy with a low ejection fraction” and that the
Plaintiff has used a wearable defibrillator. (R. 21–22). As a result, this argument is
unavailing as well.
C.
The Plaintiff’s third challenge is that the ALJ’s RFC determination did not
include all his limitations and that the ALJ improperly relied on the VE’s answer to a

hypothetical question based on that inaccurate RFC determination. (Doc. 26 at 33–
35). In support of this contention, the Plaintiff claims that the ALJ neglected to
account for his need to take unscheduled breaks, to elevate his legs, and to use the
restroom every twenty minutes, as well as the likelihood that he would have “good
days and bad days” or be absent from work. (Doc. 26 at 34). This challenge does not

survive scrutiny.
At step four of the sequential evaluation process, the ALJ must determine the
claimant’s RFC, as well as his ability to perform his past relevant work. See 20 C.F.R.
§§ 404.1520(a)(4)(iv), 404.1545. To make these findings, an ALJ must decide based
on all the relevant evidence of record what a claimant can do in a work setting despite

any physical or mental limitations caused by the claimant’s impairments and related
symptoms. Id. § 404.1545(a)(1).
At step five, the ALJ must then consider the claimant’s RFC in combination
with his age, education, and work experience to determine whether he can make an

adjustment to other work. Phillips, 357 F.3d at 1239 (citing 20 C.F.R.
§ 404.1520(a)(4)(v)). If the claimant can make such an adjustment, a finding of no
disability is warranted. Phillips, 357 F.3d at 1239.
One of avenues by which an ALJ may determine a claimant’s capacity to adjust
to other work in the national economy is through the use of a VE. Id. at 1239-40. “A
[VE] is an expert on the kinds of jobs an individual can perform based on [the
claimant’s] . . . capacity and impairments.” Phillips, 357 F.3d at 1240. “If the ALJ
utilizes the testimony of a VE, the ALJ must pose an accurate hypothetical to the VE

that accounts for all of the claimant’s impairments and restrictions. Ingram v. Comm’r
of Soc. Sec., 496 F.3d 1253, 1270 (11th Cir. 2007) (citation omitted). When the ALJ
properly rejects purported impairments or limitations, however, the ALJ need not
include those impairments or limitations in the hypothetical presented to the VE.

Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1161 (11th Cir. 2004) (per curiam)
(“[T]he ALJ was not required to include findings in the hypothetical that the ALJ had
properly rejected as unsupported.”).
As discussed above, in arriving at his RFC determination here, the ALJ properly
discounted the Plaintiff’s subjective complaints of chronic fatigue, shortness of breath,

dizziness, blurred vision, and diarrhea as inconsistent with the medical documentation
of record. (R. 19–20). Likewise, the ALJ assigned little weight to Dr. Amarchand’s
opinions, which included recommendations regarding the Plaintiff’s potential
absenteeism (R. 354) and the need for time off from work (R. 368). While it is true
that the ALJ did not explicitly address all the Plaintiff’s alleged restrictions in his

decision, he was not required to do so. Crawford, 363 F.3d at 1161. Because the
Plaintiff does not demonstrate error with respect to the ALJ’s RFC findings, he cannot
show that the RFC assessment was improper or that—by extension—the hypothetical
he posed to the VE was flawed.
D.
The Plaintiff’s remaining challenge is that the ALJ did not adequately develop
the record with respect to whether the Plaintiff met Listing 4.02, which defines the

impairment of chronic heart failure.6 To meet that listing, a claimant must satisfy the
criteria set forth in both paragraphs of the listing. See 20 C.F.R. pt. 404, subpt. P, app.
1, § 4.02. The first paragraph—known as Paragraph A—requires the “[m]edically
documented presence” of either systolic failure or diastolic failure. Id. Of relevance
here, systolic failure is defined, in part, as requiring “left ventricular end diastolic

dimensions greater than 6.0 cm or ejection fraction of 30 percent or less during a period
of stability (not during an episode of acute heart failure).” Id. The second paragraph—
known as Paragraph B—necessitates that the systolic failure result in certain
consequences, including, inter alia, the inability to perform on an exercise tolerance

test under certain conditions or, alternatively, three or more separate episodes of acute
congestive heart failure within a consecutive 12–month period that meet various
criteria, such as hospitalization or emergency room treatment for 12 hours or more,
separated by periods of stabilization. Id.
At the hearing, the ALJ questioned the Plaintiff as to whether he had undergone

a “stress test.” (R. 43). After the Plaintiff responded in the affirmative, the ALJ

6 The Listings are found at 20 C.F.R. Part 404, Subpart P, Appendix 1, and catalog those impairments
that the SSA considers serious enough to prevent a person from performing any gainful activity. 20
C.F.R. § 404.1520(a)(iii). When a claimant’s affliction(s) match an impairment on the list, the
claimant is automatically entitled to disability benefits. Id.; Edwards v. Heckler, 736 F.2d 625, 628 (11th
Cir.1984).
speculated that a chemical stress test—as opposed to an exercise tolerance test—was
conducted. (R. 43–44). The ALJ observed:
[q]uite honestly . . . I think we’re at the listing level. I mean we have
4.02A(1) and we have - - we need also [subsections] B(1), (2) or (3). And
I think [subsection three] is the inability to perform an exercise tolerance
test at a workload equivalents of five [METs] or less. But I don’t have
evidence to show that they did one, but I imagine that because they did
the chemical stress test, they did that because they didn’t [think] they
could do one.

(R. 44–45).
The ALJ further inquired of the Plaintiff’s representative as to whether the
Plaintiff had three separate episodes of hospitalization for congestive heart failure, and
the representative stated that the Plaintiff did not. (R. 45). The ALJ then concluded
that “[m]aybe we’re not quite there at the listing.” Id.
In his decision, the ALJ determined that the Plaintiff did not meet either
Paragraphs A or B of Listing 4.02 because:
there [was] no evidence of systolic failure with left ventricular end
diastolic dimensions greater than 6.0 cm or ejection fraction of 30% of
less during a period of stability (not during an episode of acute heart
failure) resulting in persistent symptoms of heart failure, three or more
separate episodes of acute congestive heart failures, or an inability to
perform on an exercise tolerance test at a workload equivalent to five
METs or less.

(R. 18).
Based on the ALJ’s queries about the “stress test” and his remark that the
Plaintiff may have met Listing 4.02, the Plaintiff now argues that the ALJ “had a duty
to either re-contact Dr. Amarchand or have [the Plaintiff’s] representative re-contact
Dr. Amarchand” to determine whether the Plaintiff could perform an exercise
tolerance test as required by Paragraph B of Listing 4.02. (Doc. 26 at 25). This

argument is without merit.
While it is well-established that “Social Security proceedings are inquisitorial
rather than adversarial” and that the ALJ has a “duty to investigate the facts and
develop the arguments both for and against granting benefits,” Sims v. Apfel, 530 U.S.
103, 110–11 (2000) (citation omitted), it is equally true that “[a] claimant bears the

burden of showing his impairments meet or equal a listing,” Yanes v. Comm’r, Soc. Sec.
Admin., ___ F. App’x ___, 2021 WL 2982084, at *3 n.6 (11th Cir. July 15, 2021) (per
curiam) (citing Barron v. Sullivan, 924 F.2d 227, 229 (11th Cir. 1991)). Ultimately, “[i]n
evaluating the necessity for a remand, [the court is] guided by whether the record

reveals evidentiary gaps which result in unfairness or clear prejudice.” Brown v.
Shalala, 44 F.3d 931, 935 (11th Cir. 1995) (citation and quotations omitted).
In this case, the Plaintiff’s contention regrading whether he could perform an
exercise tolerance test turns on his assertion that—by his reading of the hearing
transcript—the “ALJ acknowledged that [the Plaintiff] met subsection A of Listing

4.02.” (Doc. 26 at 25). This is not a fair interpretation of what the ALJ said at the
hearing. As noted above, the ALJ retreated from his initial perception that the Plaintiff
satisfied Paragraph A (R. 45) and later made clear in his decision that the Plaintiff did
not, concluding that there was no evidence of an “ejection fraction of 30% of less
during a period of stability (not during an episode of acute heart failure).” (R. 18).
The Plaintiff does not challenge the ALJ’s findings with respect to Paragraph
A. Asa result, even if he could meet the Paragraph B criteria, he cannot demonstrate
a likelihood of unfair prejudice. See Robinson v. Astrue, 365 F. App’x 993, 999 (11th
Cir. 2010) (per curiam) (holding that the claimant “ha[d] not shown that she suffered
prejudice as a result of any failure of the ALJ to perform further factfinding, because
there [wa]s no evidence [the] ALJ’s decision would have changed in light of any
additional information”).’
IV.
For the foregoing reasons, it is hereby ORDERED:
1. The Commissioner’s decision is affirmed.
2. The Clerk is directed to enter Judgment in the Defendant’s favor and to
close the case.
SO ORDERED in Tampa, Florida, this 30th day of August 2021.

Onna FP Aint
HONORABLE CHRISTOPHER P. TUITE
United States Magistrate Judge
Copies to:
Counsel of record

7 The Commissioner argues that the plain language of SSR 96-5p does not support the Plaintiff's
argument that the ALJ should have recontacted Dr. Amarchand because Dr. Amarchand did not
render an opinion as to whether the Plaintiff met Listing 4.02. According to SSR 96-5p, in cases where
“treating source evidence” is important but the “evidence does not support a treating source’s opinion
on any issue reserved to the Commissioner and the adjudicator cannot ascertain the basis of the
opinion from the case record, the adjudicator must make ‘every reasonable effort’ to recontact the
source for clarification of the reasons for the opinion.” SSR 96-5p, 1996 WL 374183, at *6 (July 2,
1996). The Court need not resolve this argument, however, because the Plaintiff does not rely on SSR
96-5p.
22

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10108297. Public record. Not legal advice.