Opinion

Cornett v. Commissioner of Social Security

Court: District Court, M.D. Florida
Filed: Mar 8, 2022
Cited by: 0 cases
Authority: More cited than 19.9%

a court must scrutinize the entire record to determine reasonableness of factual findings

How later courts described this case

a court must scrutinize the entire record to determine reasonableness of factual findings
“[T]he task of determining a claimant’s [RFC] and ability to work is within the province of the ALJ, not of doctors.”
concluding that while the ALJ erred in finding the plaintiff’s mental impairments non-severe, the error was harmless because the ALJ found other severe impairments and considered the mental impairments at later steps

Written by the judges who cited it.

The opinion

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

WALTER ALLEN CORNETT, III,

Plaintiff,

v. Case No.: 2:20-cv-518-MRM

COMMISSIONER OF SOCIAL

SECURITY,

Defendant.

OPINION AND ORDER

Plaintiff Walter Allen Cornett, III filed a Complaint on July 20, 2020. (Doc.

1). Plaintiff 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. 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. 22). 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. The impairment must be severe, making the

claimant unable to do his 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. 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 an application for a period of disability and disability insurance

benefits on May 23, 2017, alleging a disability onset date of April 22, 2016. (Tr. at

15).1 Plaintiff’s claim was denied initially on November 2, 2017, and upon

reconsideration on March 29, 2018. (Id.). Thereafter, Plaintiff requested a hearing

before an Administrative Law Judge (“ALJ”), and ALJ Joseph F. Dent held a

hearing on July 24, 2019. (Id. at 35-78). The ALJ issued an unfavorable decision on

September 18, 2019. (Id. at 15-29). The Appeals Council subsequently denied

Plaintiff’s request for review on May 27, 2020. (Id. at 1-6). Plaintiff then filed his

Complaint with this Court on July 20, 2020, (Doc. 1), and the parties consented to

1 The SSA revised the rules regarding the evaluation of medical evidence and

symptoms for claims filed on or after March 27, 2017. See Revisions to Rules

Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 5844-01, 5844 (Jan. 18,

2017). The new regulations apply in Plaintiff’s case because Plaintiff filed his claim

after March 27, 2017.

proceed before a United States Magistrate Judge for all purposes. (Docs. 16, 19).

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 he 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 his past relevant work (“PRW”); and (5) can perform other work

of the sort found in the national economy. Phillips v. Barnhart, 357 F.3d 1232, 1237-

40 (11th Cir. 2004). The claimant has the burden of proof through step four and then

the burden shifts to the Commissioner at step five. Hines-Sharp v. Comm’r of Soc. Sec.,

511 F. App’x 913, 915 n.2 (11th Cir. 2013).

The ALJ determined that Plaintiff met the insured status requirements of the

Social Security Act through March 31, 2018. (Tr. at 17). At step one of the

sequential evaluation, the ALJ found that Plaintiff had not engaged in substantial

gainful activity from April 22, 2016, the alleged onset date, through March 31, 2018,

the date last insured. (Id.). At step two, the ALJ determined that Plaintiff had the

following severe impairments: “obesity; right-sided hemiparesis, status post the

surgical removal of neoplasm; chronic cough with periodic syncope from vasovagal

reflex; hearing loss in the right ear and diplopia (20 [C.F.R. §] 404.1520(c)).” (Id.).

At step three, the ALJ determined that, through the date last insured, Plaintiff did

“not have an impairment or combination of impairments that met or medically

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

P, Appendix 1 (20 [C.F.R. §§] 404.1520(d), 404.1525[,] and 404.1526).” (Id. at 20).

At step four, the ALJ found that, through the date last insured, Plaintiff had

the residual functional capacity (“RFC”):

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

404.1567(b) except the claimant can only frequently push

and pull with the right upper extremity and frequently

operate foot controls with his right lower extremity; he can

occasionally climb ramps and stairs, stoop, kneel, crouch

and crawl, but never climb ladders, ropes and scaffolds or

balance; he can frequently reach, handle and finger with his

right upper extremity; he should avoid moderate exposure

to extreme cold, hazardous machinery and unprotected

heights; he should avoid concentrated exposure to excessive

noise and irritants such as fumes, odors, dust, gases and

poorly ventilated areas; he should avoid all work in

completely dark spaces; he can occasionally look straight

overhead; he is limited to occupations that do not require

binocular hearing.

(Id. at 20-21). The ALJ also determined that “[t]hrough the date last insured,

[Plaintiff] was capable of performing past relevant work as a police officer instructor

and security guard. This work did not require the performance of work-related

activities precluded by the claimant’s [RFC] (20 [C.F.R. §] 404.1565).” (Id. at 26).

Alternatively, the ALJ found at step five that considering Plaintiff’s age,

education, work experience, and RFC, the ALJ determined that “there were other

jobs that existed in significant numbers in the national economy that the claimant

also could have performed (20 [C.F.R. §§] 404.1569 and 404.1569a).” (Id. at 27).

Specifically, the ALJ, relying on Vocational Expert (“VE”) testimony, found that

Plaintiff “could perform work that exists in significant number[s] nationwide at both

the light and the sedentary levels of exertion,” including: Usher (DOT# 344.677-

014); Non-checking Cashier (DOT# 211.462-010); Ticket Taker (DOT# 344.677-

010); Telephone Order Clerk (DOT# 209.567-014); Charge Account Clerk (DOT#

205.367-014); and Clerical Assistant (DOT# 209.587-010). (Id. at 27-28). For these

reasons, the ALJ held that Plaintiff “was not under a disability, as defined in the

Social Security Act, at any time from April 22, 2016, the alleged onset date, through

March 31, 2018, the date last insured (20 [C.F.R. §] 404.1520(f)).” (Id. at 29).

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) (a court must scrutinize the entire record to

determine reasonableness of factual findings).

V. Analysis

On appeal, Plaintiff raises three issues. As stated by the parties, the issues are:

1. Whether the Commissioner properly evaluated Mr. Cornett’s

vision impairment;

2. Whether the Commissioner’s finding that Mr. Cornett could

perform the standing and walking requirements of light work is

supported by substantial evidence and whether the

Commissioner’s failure to make detailed findings as to Mr.

Cornett’s inability to balance requires remand; and

3. Whether the Appeals Council properly considered the new

evidence submitted after the Commissioner denied Mr. Cornett’s

claim.

(Doc. 22 at 15, 31, 40). The Court addresses each issue in turn below.

A. The ALJ Properly Assessed Plaintiff’s Visual Impairments.

Plaintiff first argues that the ALJ erred in his assessment of Plaintiff’s visual

limitations. (See Doc. 22 at 15-22). Specifically, Plaintiff claims that the ALJ erred

by failing to: (1) consider Plaintiff’s nystagmus; and (2) include any visual

limitations in Plaintiff’s RFC. (Id. at 15-16).

Plaintiff contends that the ALJ failed to address his nystagmus diagnosis

because, while the ALJ found Plaintiff’s diplopia as a severe impairment at step two

of the sequential evaluation, the ALJ did not find Plaintiff’s nystagmus severe. (Id. at

16-17). In support of this assertion, Plaintiff highlights the differences between

diplopia and nystagmus, (see id. at 17 (“Diplopia is double vision[ and n]ystagmus[]

refers to involuntary [eye] movements.” (citation omitted))), summarizes his

testimony on the symptoms he allegedly experiences because of the nystagmus, (see

id. at 18-19 (citing Tr. at 41, 43, 44, 51, 56)), and summarizes the medical records

related to his vision diagnoses, (see id. at 18-20 (citing Tr. at 186, 193, 231, 248-49,

274-75, 277-80, 292-98); see also id. at 21 (citing Tr. at 219, 243, 359)). In sum,

Plaintiff essentially contends that the ALJ erred by overlooking Plaintiff’s nystagmus

in the decision. (See id. at 16-22).

Plaintiff also contends that the ALJ “ultimately failed to include any visual

limitations in the [RFC] assessment or in the [his questions to the VE],” asserting

that “although the ALJ stated he was incorporating visual limitations in the RFC

assessment, he failed to do so.” (Id. at 16-17). Plaintiff argues that the ALJ’s

decision reveals that the ALJ intended to include visual limitations in Plaintiff’s

RFC, but “forgot to.” (Compare Doc. 22 at 17 (“the ALJ said that the ability to safely

drive ‘strongly suggests’ that the vision limitations are accommodated in the RFC

assessment but then does not include any visual limitations.”), with Tr. at 25 (“[t]he

ability to safely drive to and from the state of Virginia by himself strongly suggests

that [Plaintiff’s] vision (and hearing) limitations are adequately addressed in the

residual functional capacity.”)). Moreover, Plaintiff asserts that the RFC limitations

to “[(1)] avoid all work in completely dark spaces; [and (2) only] occasionally look

straight overhead,” (Tr. at 21), were not visual limitations, but rather limitations on

Plaintiff’s ability to move his head and balance, (see Doc. 22 at 20). Finally, Plaintiff

challenges the ALJ’s reliance on Plaintiff’s ability to drive from Florida to Virginia

because “[t]he ALJ failed to understand that [Plaintiff’s visual] issue pertains more to

head movements and body movements as opposed to looking straight ahead with a

head that is not moving (such as for a vision test).” (Id. at 21).

In sum, Plaintiff’s argument can essentially be condensed into two points.

First, that “[t]he ALJ [erred when he] failed to include any limitations regarding far

or near acuity or limitations relative to the nystagmus or the double vision [in the

RFC].” (See id. at 21). Second, that the ALJ misunderstood the impact of Plaintiff’s

visual impairments and did not consider the effect of Plaintiff’s “body movements”

on Plaintiff’s vision impairments. (See id.).

In response, the Commissioner contends that the ALJ did not commit a

harmful error by failing to identify Plaintiff’s nystagmus as a severe impairment

because he identified other severe impairments and continued past step two of the

sequential evaluation. (See id. at 23-24).

Additionally, the Commissioner argues that the ALJ accounted for Plaintiff’s

diplopia and nystagmus and their resulting symptoms in the RFC. (Id. at 25). In

support, the Commissioner essentially asserts that the ALJ did not separately assess

each of Plaintiff’s visual impairments because “Plaintiff’s complaints related to

nystagmus and diplopia were substantially similar in substance and nature.” (Id. at

24 (citing Tr. at 41-44, 48, 51, 56)). Moreover, the Commissioner argues that the

RFC limitations finding that Plaintiff could (1) never balance, (2) never work in

completely dark spaces, and (3) only occasionally look straight overhead, were all

included by the ALJ to account for Plaintiff’s nystagmus and diplopia because

Plaintiff alleged that the visual conditions impacted his balance and coordination.

(Id. at 24-25 (citing Tr. at 20-26, 41-44, 48, 51, 56)).

In addition, as to visual acuity, the Commissioner asserts that (1) the record

evidence relied on by the ALJ establishes that “Plaintiff’s visual acuity was not as

limited as alleged,” (see id. at 29 (citing Tr. at 22-25, 57-59, 64-65, 182, 193, 219, 248,

293)), and (2) “the majority of the jobs identified by the VE at step five did not

require constant acuity at a near or far range,” (id. at 29 n.17 (citations omitted)).

The Commissioner also supports the ALJ’s decision not to add additional

visual RFC limitations by highlighting the ALJ’s finding that Plaintiff’s subjective

symptom complaints “were not as limiting as alleged.” (Id. at 25, 27 (citing Tr. at

21-26)). The Commissioner also notes that the ALJ considered that Plaintiff (1) “did

not seek specialized treatment for any vision complaints until January 2018,” (2)

“continued driving daily throughout the relevant period,” and (3) maintained the

abilities to shop independently, watch television, prepare simple meals, handle

personal care, and manage finances. (Id. at 28 (citing Tr. at 22-26, 55-59, 63, 182,

193, 248-49)).

At step two, “[a]n impairment is not severe only if the abnormality is so slight

and its effect so minimal that it would clearly not be expected to interfere with the

individual’s ability to work, irrespective of age, education or work experience.”

McDaniel v. Bowen, 800 F.2d 1026, 1031 (11th Cir. 1986). A severe impairment must

bring about at least more than a minimal reduction in a claimant’s ability to work

and must last continuously for at least twelve months. See 20 C.F.R. § 404.1505(a).

This inquiry “acts as a filter” so that insubstantial impairments will not be given

much weight. Jamison v. Bowen, 814 F.2d 585, 588 (11th Cir. 1987). Yet, “[a]

claimant’s burden to establish a severe impairment at step two is only ‘mild.’” See

Schink v. Comm’r of Soc. Sec., 935 F.3d 1245, 1265 (11th Cir. 2019) (quoting McDaniel

v. Bowen, 800 F.2d 1026, 1031 (11th Cir. 1986)). While the standard for severity is

low, 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).

In the Eleventh Circuit, however, “[n]othing 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). Instead, the ALJ need

only consider a claimant’s impairments in combination, whether severe or not. Id. 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)). Thus, the finding that any impairment is severe satisfies step two, and

any failure to identify all impairments that should be severe is harmless. Jamison,

814 F.2d at 588; see also Delia v. Comm’r of Soc. Sec., 433 F. App’x 885, 887 (11th Cir.

2011) (concluding that while the ALJ erred in finding the plaintiff’s mental

impairments non-severe, the error was harmless because the ALJ found other severe

impairments and considered the mental impairments at later steps). “[B]eyond the

second step, [however,] 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, 842 (11th Cir. 2014) (internal citations omitted).

Additionally, the RFC is “the most” Plaintiff can do despite his physical and

mental limitations. 20 C.F.R. § 404.1545(a)(1). To determine a plaintiff’s RFC, the

ALJ must use all relevant medical and other evidence in the record. Phillips, 357

F.3d at 1238; 20 C.F.R. § 404.1545(e). When the Commissioner’s decision is

supported by substantial evidence, however, the Court will affirm, even if the Court

would have reached a contrary result as the ALJ and even if the Court finds that “the

evidence preponderates against” the Commissioner’s decision. See Edwards v.

Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991).

First, the Court finds that the ALJ committed a harmless error by failing to

include nystagmus in the list of Plaintiff’s severe impairments at step two. See

Jamison, 814 F.2d at 588. Because the ALJ identified other severe impairments,

including the related diplopia visual impairment, he continued beyond the second

step of the sequential evaluation. (See Tr. at 17-29).

Additionally, the ALJ specifically evaluated Plaintiff’s alleged visual

limitations and impairments within the RFC determination. For example, the ALJ

noted that: (1) Plaintiff had “some residual problems” associated with his brain

surgery, (see id. at 17 (citing Tr. at 217-26, which specifically discusses, inter alia,

Plaintiff’s diplopia and latent hyperopia)); (2) Plaintiff alleges “vision problems in his

right eye,” (id. at 21 (citing Tr. at 231, which states “impaired lateral movement on R

eye”)); (3) Plaintiff inconsistently reported the amount of time that he spends driving,

drove alone to Virginia in 2018 and West Virginia in 2019, and obtained “his

concealed carry permit for the state of Florida and . . . carries a handgun while at

church” as part of a “‘safety plan’ at his church,” (id. at 23-24 (noting that Plaintiff’s

testimony about these activities was inconsistent “with the physical and vision issues

that the claimant alleges”)); and (4) Plaintiff was found to have “diplopia” and

“extraocular movements” in early 2018, (id. at 25 (finding the alleged severity of

Plaintiff’s visual allegations inconsistent with the other evidence of record and noting

that the allegations were sufficiently addressed in the RFC)). Moreover, during the

hearing, the ALJ specifically asked Plaintiff: “being a former policeman you

understand the horizontal gaze nystagmus . . . so your eyes jiggle when they get off

to the side . . . [?]” To which Plaintiff responded: “Yes[.]” (Id. at 56). Furthermore,

the ALJ included RFC limitations meant to accommodate Plaintiff’s visual

impairments. (See id. at 21 (“[Plaintiff] should avoid all work in completely dark

spaces; he can occasionally look straight overhead[.]”); see also id. at 42-43 (in the

context of questions regarding his “pulsat[ing]” and “jiggl[ing]” vision, Plaintiff

testified that he will “blank out” if he looks straight overhead)).

Accordingly, because the ALJ identified other severe impairments at step two

and because the ALJ sufficiently considered Plaintiff’s nystagmus in combination

with Plaintiff’s other visual impairments, the Court finds that the ALJ’s step two

omission constitutes a harmless error. Jamison, 814 F.2d at 588.

Second, the Court finds that the ALJ (1) sufficiently evaluated Plaintiff’s

visual impairments, (2) incorporated supported visual limitations into the RFC, and

(3) asked the VE hypothetical questions that included those limitations.

Accordingly, the Court finds that the ALJ’s decision and RFC determination are

supported by substantial evidence.

To begin, as explained in detail above, the ALJ sufficiently evaluated all of

Plaintiff’s visual impairments, including Plaintiff’s diplopia, nystagmus, and visual

acuity, in combination. (See Tr. at 17, 21, 23-25, 42-34, 56 (citing Tr. at 217-26,

231)). The Court’s finding that the ALJ’s evaluation is supported by substantial

evidence is bolstered by the emphasis that the ALJ placed on the inconsistency

between Plaintiff’s reported activities, interstate driving trips, and involvement in his

church’s “safety plan,” (see id. at 23-25; see also Tr. at 58-59, 64-65), and Plaintiff’s

alleged visual limitations.

Additionally, the ALJ incorporated supported visual limitations into Plaintiff’s

RFC. (See id. at 20-21). Specifically, the ALJ found that Plaintiff could (1) never

balance, (2) never work in completely dark spaces, and (3) only occasionally look

straight overhead. (Id.). Moreover, upon a review of these RFC limitations in the

context of Plaintiff’s testimony during the hearing, (see id. at 41, 43-44), the Court

finds Plaintiff’s argument––that the ALJ “forgot to include visual limitations in the

RFC,” (Doc. 22 at 17)––unpersuasive. Rather, because Plaintiff specifically testified

that his visual conditions impacted his balance, coordination, and head movement,

the RFC limitations are directly relevant to accommodating Plaintiff’s visual

impairment allegations. In fact, while Plaintiff contends that his balance is a distinct

consideration from his visual limitations, (see Doc. 22 at 20), the Court considers his

directly conflicting testimony during the hearing:

I was fatigued [be]cause my eyes help me, kind[ of] balance

myself because my balance is so bad that my eyes kind[ of]

– and if you put me in a dark room you[ will] know

[be]cause you[ wi]ll hear me hit the wall . . . like Walmart,

[be]cause their lighting[ is] funny, I have a hard time

walking through Walmart.

(Id. at 41). Similarly, in the context of questions regarding his “pulsat[ing]” and

“jiggl[ing]” vision, Plaintiff testified that he will “blank out” if he looks straight

overhead, which belies his argument that the RFC limitation of only occasionally

looking straight overhead was unrelated to Plaintiff’s visual impairments. Finally,

Plaintiff’s own arguments contradict themselves as Plaintiff states both that (1) the

ALJ’s limitations on head movement are unrelated to Plaintiff’s visual impairments,

(see Doc. 22 at 20), and (2) “[t]he ALJ failed to understand that [Plaintiff’s visual]

issue pertains more to head movements and body movements,” (see id. at 21).

Because Plaintiff alleged specific symptoms stemming from his visual

impairments––poor balance from bad vision and “blank[ing] out” from looking

overhead––the Court finds that the ALJ accounted for Plaintiff’s visual impairments

in the RFC with specifically tailored RFC limitations. Additionally, because the

limitations assessed by the ALJ are directly related to the evidence of record, the

Court finds that the ALJ’s RFC determination is supported by substantial evidence.

Finally, a review of the hearing transcript shows that the ALJ included

limitations that Plaintiff could (1) never balance, (2) never work in completely dark

spaces, and (3) only occasionally look straight overhead in the ALJ’s hypothetical

questions to the VE. (See Tr. at 67-68). Additionally, the VE determined that a

hypothetical individual with all three of those limitations could complete Plaintiff’s

PRW as actually or generally performed. (Id.).

Accordingly, the Court finds that the ALJ’s decision is supported by

substantial evidence and remand is not required as to this issue.

B. The ALJ Properly Assessed Plaintiff’s Ability to Stand, Walk, and

Balance.

Second, Plaintiff argues that the ALJ erred by finding that Plaintiff (1)

maintained the ability to stand or walk for six hours during an eight-hour workday

and (2) only had to avoid moderate exposure to unprotected heights, rather than all

exposure. (See Doc. 22 at 31-35). In support, Plaintiff contends that the limitation to

standing and walking for six hours is unsupported by substantial evidence of record

and inconsistent with (1) two state agency medical opinions and (2) the RFC

limitation that Plaintiff can never balance. (Id. at 32-35 (citing SSR 96-9p; (Tr. at 20,

84, 100))). Plaintiff also argues that the limitation to avoid moderate exposure to

unprotected heights conflicts with the RFC limitation that Plaintiff can never

balance. (Id. at 32, 35 (citing SSR 96-9p; (Tr. at 20))). Plaintiff concludes that these

inconsistencies should not be considered harmless errors because the inability to

engage in light work, combined with “the additional visual limitations [advanced in

the first issue] would directly impact [the] sedentary occupation[s identified by the

ALJ in his alternative finding].” (Id. at 34; see also Tr. at 28).

The Commissioner responds that the ALJ’s RFC determination is supported

by substantial evidence. (See Doc. 22 at 35-40). Specifically, the Commissioner

argues that because the task of determining a claimant’s RFC is within the province

of the ALJ, the ALJ’s determination is not “unsupported” merely because the record

does not contain a medical opinion advancing the same work-related limitations

delineated in the RFC. (Id. at 36 (citations omitted)). Additionally, the

Commissioner asserts that substantial evidence within the record supports the ALJ’s

determination that Plaintiff is capable of completing the standing and walking

requirements of light work. (Id. at 36-38 (citations omitted)). Moreover, the

Commissioner contends that Plaintiff fails to overcome his step four burden to show

that he cannot complete his past relevant work as a police officer instructor and

security guard because, in part, “[Plaintiff] does not identify any objective findings of

record to support his claim that he is more limited than found by the ALJ.” (Id. at

37-38 (citations omitted)).

The Commissioner also highlights the evidence relied on by the ALJ in his

decision: (1) that Plaintiff continued to perform the standing and walking

requirements of his PRW following his 2014 brain surgery until April 2016; (2) that

Plaintiff was regularly found to have a normal gait and stance in the medical records

generated before the March 2018 expiration of Plaintiff’s insured status; (3) that

Plaintiff did not need an assistive device for walking; and (4) that the ALJ accounted

for Plaintiff’s alleged right-side weakness by incorporating lower right extremity

limitations in the RFC. (Id. at 36-37 (citing Tr. at 21-26, 40-41, 231, 262, 264-65,

275, 279, 351)).

Finally, the Commissioner contends that, even if the ALJ erred by finding that

Plaintiff maintained the RFC to perform light work, the error was harmless because

the ALJ identified sedentary work that existed in significant numbers in the national

economy that Plaintiff could still perform. (See id. at 38-40 (citations omitted)).

The RFC is “the most” Plaintiff can do despite his physical and mental

limitations. 20 C.F.R. § 404.1545(a)(1). To determine a plaintiff’s RFC, the ALJ

must use all relevant medical and other evidence in the record. Phillips, 357 F.3d at

1238; 20 C.F.R. § 404.1545(e). When the Commissioner’s decision is supported by

substantial evidence, however, the Court will affirm, even if the Court would have

reached a contrary result as the ALJ and even if the Court finds that “the evidence

preponderates against” the Commissioner’s decision. See Edwards v. Sullivan, 937

F.2d 580, 584 n.3 (11th Cir. 1991).

The Court finds that the ALJ adequately considered the evidence of record in

determining that Plaintiff maintained the RFC to perform light work with additional

limitations. To begin, the ALJ considered: (1) Plaintiff’s alleged fatigue, right side

weakness, and inability to stand for forty-five minutes (see Tr. at 21-22 (citing Tr. at

40, 171-78, 186-92)); (2) the medical records showing that Plaintiff had an “antalgic

gait, with some limping on the right side,” “a normal gait, but with some limping on

his right leg,” lower extremities with “5/5 strength on the left side, but 4/5 strength

on [the] right side,” lower extremity strength reduced to “2/5,” and that he did not

need an assistive walking device, (see id. at 22-24 (citing Tr. at 262-67, 292-99, 275,

360)); (3) Plaintiff’s self-reported activities of daily living including driving for

extended distances, completing yard work, and being able to shop independently, (id.

at 23-24 (citing Tr. at 182)); (4) the twenty-month gap in treatment records from

Plaintiff’s alleged onset date to January 2018, (see id. at 22 (citations omitted)); and

(5) the state medical experts’ opinions that Plaintiff was limited to standing and

walking for only two hours out of an eight-hour workday, (id. at 26 (citing Tr. at 79-

89, 92-105)). Additionally, Plaintiff has failed to identify any additional evidence

related to his ability to walk and stand that he contends that ALJ failed to consider or

address. (See Doc. 22 at 31-35).

Upon a review of the evidence and the ALJ’s decision, the Court finds that

substantial evidence supports the ALJ’s finding that Plaintiff can perform six hours

of walking or standing during an eight-hour workday. It is the ALJ’s job to evaluate

and weigh evidence and to resolve any conflicts in the record. “In reviewing an

ALJ’s decision, [the Court] may not decide the facts anew, make credibility

determination[s], or re-weigh the evidence, and [the Court] must affirm the ALJ’s

findings if they are supported by substantial evidence, even if the evidence

preponderates against them.” Jones v. Soc. Sec. Admin., Comm’r, 695 F. App’x 507,

508 (11th Cir. 2017) (citing Mitchell v. Comm’r, Soc. Sec. Admin., 771 F.3d 780, 782

(11th Cir. 2014); Winschel v. Comm’r., Soc. Sec. Admin., 631 F.3d 1176, 1178 (11th Cir.

2011)). Here, the ALJ’s findings are supported by substantial evidence in the form of

medical records related to Plaintiff’s lower extremity strength and Plaintiff’s

testimony about his activities of daily living. (See Tr. at 182, 292-99, 275).

Moreover, the Court finds that the ALJ properly accounted for Plaintiff’s

lower extremity limitations by limiting Plaintiff to (1) no more than light work and

(2) no more than frequent use of the lower right extremity to operate foot controls.

(Id. at 20-21).

Insofar as Plaintiff contends that the ALJ’s decision to find the state agency

medical opinions partially unpersuasive was an error, the Court disagrees.

Because Plaintiff filed his claim after March 27, 2017, revised Social Security

Administration regulations regarding the consideration of medical opinion evidence

apply. See 20 C.F.R. § 404.1520c. The regulations require that an ALJ apply the

same factors in the consideration of opinions from all medical sources, rather than

afford specific evidentiary weight to certain sources’ opinions. 20 C.F.R. §

404.1520c(a); see also Marilyn Matos v. Comm’r of Soc. Sec., No. 21-11764, 2022 WL

97144, at *4 (11th Cir. Jan. 10, 2022) (applying the SSA’s revised regulations).

Under the revised regulations, as to each medical source, the ALJ must

consider: (1) supportability; (2) consistency; (3) relationship with the claimant; (4)

specialization; and (5) “other factors that tend to support or contradict a medical

opinion or prior administrative medical finding.” 20 C.F.R. § 404.1520c(c).

Supportability and consistency constitute the most important factors in any

evaluation, and the ALJ must explain how those two factors are considered. See 20

C.F.R. § 404.1520c(b)(2). Overall, supportability relates to the extent to which a

medical source has articulated support for the medical source’s own opinion, while

consistency relates to the relationship between a medical source’s opinion and other

evidence within the record. See 20 C.F.R. § 404.1520c(c)(1)-(2). Stated differently,

the ALJ’s analysis considers whether the medical source’s opinion is (1) supported

by the source’s own records and (2) consistent with the other evidence of record. See

Cook v. Comm’r of Soc. Sec., No. 6:20-cv-1197-RBD-DCI, 2021 WL 1565832, at *3

(M.D. Fla. Apr. 6, 2021), report and recommendation adopted, No. 6:20-cv-1197-RBD-

DCI, 2021 WL 1565162 (M.D. Fla. Apr. 21, 2021).

Here, in assessing Dr. Guttman’s and Dr. Junejo’s opinions, the ALJ found

that the opinions were not supported in that they found Plaintiff limited to standing

or walking for two hours out of an eight-hour workday. (Tr. at 26 (citing Tr. at 79-

89, 92-105)). Despite finding that the opinions were unsupported, the ALJ did not

delineate the reasons that he found the opinions unsupported in the same paragraph.

Rather, the Court finds that the ALJ addressed and explained the supportability and

consistency of the medical record throughout all of the ALJ’s RFC determination––

the same record on which Dr. Guttman’s and Dr. Junejo’s opinions are based.

Stated differently, the ALJ’s step four determination, in which he assessed Plaintiff’s

subjective symptoms, reported activities of daily living, relevant medical records, and

additional factors, (see Tr. at 21-24 (citing Tr. at 40, 171-78, 186-92, 262-67, 292-99,

275, 360, 182)), and then explained the inconsistencies between the pieces of

evidence and his findings, (see id. at 23-25), is essentially a supportability and

consistency determination for the state medical experts’ opinions.

Upon review, the Court finds that the evidence cited by the ALJ supports his

finding that the state agency medical consultants’ opinions were unsupported by and

inconsistent with the other evidence of record. (See id. at 40, 171-78, 186-92, 262-67,

292-99, 275, 360, 182). Additionally, the Court finds that the ALJ’s determination of

the persuasiveness of the state medical experts’ opinions is supported by substantial

evidence within the record.

Next, to the extent Plaintiff implies the ALJ’s decision is unsupported because

“no physician concluded that [Plaintiff] could stand/walk for six hour [sic] of eight

hours a day,” (Doc. 22 at 32), the Court finds the argument unpersuasive.

Significantly, Plaintiff fails to cite to a regulation or case requiring that an RFC be

based on a medical opinion. (See id. at 32-35). Rather, the RFC determination is a

task for the ALJ, not doctors. See Robinson v. Astrue, 365 F. App’x 993, 999 (11th Cir.

2010) (“[T]he task of determining a claimant’s [RFC] and ability to work is within

the province of the ALJ, not of doctors.”). In fact, under the regulations,

“[s]tatements about what your residual functional capacity is using our

programmatic terms,” constitute “[e]vidence that is inherently neither valuable nor

persuasive.” 20 C.F.R. § 404.1520b. Accordingly, the Court disagrees with

Plaintiff’s implied assertion that the ALJ can only find Plaintiff capable of standing

and walking for six hours out of an eight-hour workday if the ALJ has access to a

medical opinion in the record assessing the same.

Finally, to the extent Plaintiff argues that the RFC limitations are internally

inconsistent because they permit Plaintiff to simultaneously (1) stand or walk for six

hours out of an eight-hour workday, but (2) never balance, (see Doc. 22 at 32-35

(citations omitted)), the Court disagrees.

Social Security Ruling 96-9p2 states that the Selected Characteristics of

Occupations (“SCO”) defines “balance” as “maintaining body equilibrium to

prevent falling when walking, standing, crouching, or running on narrow, slippery,

or erratically moving surfaces.” SSR 96-9p, 1996 WL 374185, at *7.

2 “Social Security Rulings are agency rulings published under the Commissioner’s

authority and are binding on all components of the Administration.” Klawinski v.

Comm’r of Soc. Sec., 391 F. App’x 772, 775 (11th Cir. 2010) (citing Sullivan v. Zebley,

493 U.S. 521, 531 n.9 (1990)). While Social Security Rulings are not binding on the

Court, they are still afforded “great respect and deference, if the underlying statute is

unclear and the legislative history offers no guidance.” Id. (citing B. ex rel. B. v.

Schweiker, 643 F.2d 1069, 1071 (5th Cir. 1981)).

Plaintiff has not alleged, and nothing in the record suggests, that Plaintiff’s

PRW, as actually performed, required “walking, standing, crouching, or running on

narrow, slippery, or erratically moving surfaces.” Further, the Dictionary of

Occupational Titles (“DOT”) states that Plaintiff’s PRW as generally performed in the

national economy does not require any “walking, standing, crouching, or running on

narrow, slippery, or erratically moving surfaces.” DOT § 375.227-010, Police-

academy Instructor, 1991 WL 673142 (“Balancing: Not Present – Activity or

condition does not exist.”); DOT § 372.667-038 Merchant Patroller, 1991 WL

673101 (same).

Moreover, as Plaintiff has provided no evidence to suggest that a limitation to

avoid moderate exposure to unprotected heights conflicts with an inability to walk,

stand, crouch, or run on narrow, slippery, or erratically moving surfaces, the Court is

not persuaded by Plaintiff’s argument as to that issue. See SSR 96-9p, 1996 WL

374185, at *7. Thus, Plaintiff has not identified any internal inconsistencies within

the RFC limitations imposed by the ALJ.

In sum, the Court finds that substantial evidence supports the ALJ’s

determination that Plaintiff can complete the standing and walking requirements of

light work and return to her past relevant work. Accordingly, remand is not

necessitated as to this issue.

C. The Appeals Council Properly Found that Plaintiff’s New Evidence

Did Not Show a Reasonable Probability that It Would Change the

Outcome of the ALJ’s Decision.

Finally, Plaintiff contends that the Appeals Council failed to evaluate properly

the additional evidence that Plaintiff submitted in his appeal of the ALJ’s decision.

(See Doc. 22 at 40-42). Specifically, Plaintiff notes that he submitted new treatment

records from Johns Hopkins Hospital dated between May 2014 and April 2015,

(“Additional Evidence”), and argues that “the Appeals Council erroneously denied

review and improperly concluded that the evidence was not material.” (Id. at 40-44;