Torres v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

MINERVA TORRES,

Plaintiff,

v. Case No. 8:21-cv-177-AAS

KILOLO KIJAKAZI,

Acting Commissioner of

Social Security Administration,1

Defendant.

______________________________________/

ORDER

Plaintiff Minerva Torres requests judicial review of a decision by the

Commissioner of Social Security (Commissioner) denying her claim for Social

Security Disability benefits under the Social Security Act, 42 U.S.C. Section

405(g). After reviewing the record, including a transcript of the proceedings

before the Administrative Law Judge (ALJ), the administrative record, the

pleadings, and the parties’ joint memorandum, the Commissioner’s decision is

AFFIRMED.

1 Kilolo Kijakazi became the Acting Commissioner of Social Security on July 9, 2021.

Under to Rule 25(d) of the Federal Rules of Civil Procedure, Kilolo Kijakazi should be

substituted, therefore, for Andrew Saul as the defendant in this suit. No further

action need be taken to continue this suit by reason of the last sentence of section

205(g) of the Social Security Act, 42 U.S.C. § 405(g).

I. PROCEDURAL HISTORY

Ms. Torres applied for Disability Insurance Benefits (DIB) on April 21,

2018, alleging a disability onset date of February 26, 2017. (Tr. 95, 232–33).

Ms. Torres’ claim was denied initially and after reconsideration. (Tr. 83–94,

96–115). A hearing was held before the ALJ on June 10, 2020. (Tr. 38–51). On

August 28, 2020, the ALJ found Ms. Torres not disabled. (Tr. 20–29).

The Appeals Council denied Ms. Torres’ request for review on December

18, 2020, making the ALJ’s decision the Commissioner’s final decision. (Tr. 7–

10). Ms. Torres now requests judicial review of the Commissioner’s final

decision. (Doc. 1).

II. NATURE OF DISABILITY CLAIM

A. Background

Ms. Torres was fifty years old at the time of her alleged disability onset

date. (Tr. 260, 267). Ms. Torres has a high school education and past relevant

work as an office clerk. (Tr. 260).

B. Summary of the ALJ’s Decision

The ALJ must follow five steps when evaluating a claim for disability.2

20 C.F.R. § 404.1520(a). First, if a claimant is engaged in substantial gainful

2 If the ALJ determines the claimant is disabled at any step of the sequential analysis,

the analysis ends. 20 C.F.R. § 404.1520(a)(4).

activity,3 she is not disabled. 20 C.F.R. § 404.1520(b). Second, if a claimant has

no impairment or combination of impairments that significantly limit her

physical or mental ability to perform basic work activities, she has no severe

impairment and is not disabled. 20 C.F.R. § 404.1520(c); see McDaniel v.

Bowen, 800 F.2d 1026, 1031 (11th Cir. 1986) (stating that step two acts as a

filter and “allows only claims based on the most trivial impairments to be

rejected”). Third, if a claimant’s impairments fail to meet or equal an

impairment in the Listings, she is not disabled. 20 C.F.R. § 404.1520(d).

Fourth, if a claimant’s impairments do not prevent her from doing past

relevant work, she is not disabled. 20 C.F.R. § 404.1520(e). At this fourth step,

the ALJ determines the claimant’s residual functional capacity (RFC).4 Id.

Fifth, if a claimant’s impairments (considering her RFC, age, education, and

past work) do not prevent her from performing work that exists in the national

economy, she is not disabled. 20 C.F.R. § 404.1520(g).

The ALJ here determined Ms. Torres met the insured status

requirements of the Social Security Act through March 31, 2022. (Tr. 22). The

ALJ found Ms. Torres did not engage in substantial gainful activity since

3 Substantial gainful activity is paid work that requires significant physical or mental

activity. 20 C.F.R. § 404.1572(a).

4 A claimant’s RFC is the level of physical and mental work she can consistently

perform despite her limitations. 20 C.F.R. § 404.1545(a)(1).

February 26, 2017, the alleged onset date. (Id.). The ALJ found Ms. Torres had

these severe impairments: fibromyalgia, anxiety disorder, and obsessive

compulsive disorder. (Id.). However, the ALJ found Ms. Torres’ impairment or

combination of impairments failed to meet or medically equal the severity of

an impairment in the Listings. (Tr. 23).

The ALJ found Ms. Torres could perform light work as defined in 20

C.F.R. § 404.1567(b),5 except:

[Ms. Torres] can lift and/or carry 20 pounds occasionally; lift and/or

carry 10 pounds frequently; stand and/or walk 6 hours in an 8-hour

workday; sit 6 hours in an 8-hour workday. [Ms. Torres] may

occasionally climb ladders/ropes/scaffolds, and frequently climb

ramps/stairs, stoop, kneel, crouch, and crawl. [Ms. Torres] must

avoid concentrated exposure to extreme cold, extreme heat,

vibrations, noise, and hazards. [Ms. Torres] is able to understand,

carry out, and remember simple, routine tasks; involving only

simple, work-related decisions with the ability to adapt to routine

work place changes. [Ms. Torres] could tolerate frequent

interaction with the general public.

(Tr. 24).

5 “Light work involves lifting no more than 20 pounds at a time with frequent lifting

or carrying of objects weighing up to 10 pounds. Even though the weight lifted may

be very little, a job is in this category when it requires a good deal of walking or

standing, or when it involves sitting most of the time with some pushing and pulling

of arm or leg controls. To be considered capable of performing a full or wide range of

light work, you must have the ability to do substantially all of these activities. If

someone can do light work, we determine that he or she can also do sedentary work,

unless there are additional limiting factors such as loss of fine dexterity or inability

to sit for long periods of time.” 20 C.F.R. § 404.1567(b).

Based on Ms. Torres’ testimony at the administrative hearing, Ms.

Torres’ RFC, and the vocational expert’s testimony, the ALJ determined Ms.

Torres could not perform her past relevant work. (Tr. 27). The ALJ then

determined Ms. Torres could perform other jobs that exist in significant

numbers in the national economy, specifically as a hotel housekeeper, price

marker, and a routing clerk. (Tr. 28). Thus, the ALJ found Ms. Torres not

disabled from February 26, 2017, through the date of the decision. (Tr. 29).

III. ANALYSIS

A. Standard of Review

Review of the ALJ’s decision is limited to determining whether the ALJ

applied correct legal standards and whether substantial evidence supports her

findings. McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir. 1988);

Richardson v. Perales, 402 U.S. 389, 390 (1971). Substantial evidence is more

than a mere scintilla but less than a preponderance. Dyer v. Barnhart, 395

F.3d 1206, 1210 (11th Cir. 2005) (citation omitted). In other words, there must

be sufficient evidence for a reasonable person to accept as enough to support

the conclusion. Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995) (citations

omitted).

A reviewing court must affirm a decision supported by substantial

evidence “even if the proof preponderates against it.” Phillips v. Barnhart, 357

F.3d 1232, 1240 n.8 (11th Cir. 2004) (citations omitted). The court must not

make new factual determinations, reweigh evidence, or substitute its judgment

for the Commissioner’s decision. Id. (citation omitted). Instead, the court must

view the whole record, considering evidence favorable and unfavorable to the

Commissioner’s decision. Foote, 67 F.3d at 1560; see also Lowery v. Sullivan,

979 F.2d 835, 837 (11th Cir. 1992) (citation omitted) (stating that the reviewing

court must scrutinize the entire record to determine the reasonableness of the

Commissioner’s factual determinations).

B. Issues on Appeal

Ms. Torres raises two issues on appeal: (1) whether the ALJ properly

evaluated her subjective complaints of pain; and (2) whether substantial

evidence supports the ALJ’s RFC assessment regarding her shoulder pain.

(Doc. 24, pp. 4–8, 14–15).

1. Whether the ALJ properly evaluated Ms. Torres’

subjective complaints of pain.

First, Ms. Torres contends the ALJ did not properly evaluate her

subjective complaints. (Doc. 24, pp. 4–8). Specifically, Ms. Torres claims the

ALJ failed to properly consider her fibromyalgia, and that, despite finding that

Ms. Torres had the severe impairment of fibromyalgia, the ALJ “rejected the

diagnosis of fibromyalgia in another part of the decision,” when the ALJ noted

that Ms. Torres’ examination revealed inconsistencies with such a diagnosis.

(Id.). In response, the Commissioner argues Ms. Torres’ argument is “pure

speculation” and the ALJ properly considered Ms. Torres’ treatment and

medication, examination findings, reported symptoms, and prior

administrative medical findings when addressing her subjective statements.

(Doc. 24, pp. 8–14).

[F]ibromyalgia [is] a chronic disorder “characterized primarily by

widespread pain in the joints, muscles, tendons, or nearby soft

tissues that has persisted for at least 3 months.” SSR 12-2p, 77

Fed. Reg. 43,640, 43,641 (July 25, 2012).6 The symptoms of

fibromyalgia “can wax and wane so that a person may have bad

days and good days.” Id. at 43,644 (quotation marks omitted). For

this reason, “longitudinal records reflecting ongoing medical

evaluation and treatment from acceptable medical sources are

especially helpful in establishing both the existence and severity

of [fibromyalgia].” Id. at 43,642. “If objective medical evidence does

not substantiate the person's statements about the intensity,

persistence, and functionally limiting effects” of the fibromyalgia

symptoms, the ALJ will “consider all of the evidence in the case

record, including the person’s daily activities, medications or other

treatments the person uses, or has used, to alleviate symptoms;

the nature and frequency of the person's attempts to obtain

medical treatment for symptoms; and statements by other people

about the person’s symptoms.” Id. at 43,643.

Bailey v. Soc. Sec. Admin., Comm’r, 791 F. App’x 136, 142–43 (11th Cir. 2019).

6 “Social Security Rulings are agency rulings published under the authority of the

Commissioner of Social Security and are binding on all components of the

Administration.” Sullivan v. Zebley, 493 U.S. 521, 530 n.9 (1990). “Even though the

rulings are not binding on [federal courts], [they are] nonetheless accord[ed] great

respect and deference, if the underlying statute is unclear and the legislative history

offers no guidance.” Klawinski v. Comm’r of Soc. Sec., 391 F. App’x 772, 775 (11th Cir.

2010) (per curiam) (citing B. ex rel. B. v. Schweiker, 643 F.2d 1069, 1071 (5th Cir.

1981)). Courts also “require the agency to follow its regulations where failure to

enforce such regulations would adversely affect substantive rights of

individuals.” Washington v. Comm’r of Soc. Sec., 906 F.3d 1353, 1361 (11th Cir.

2018) (quotations omitted).

Even before the issuance of SSR 12-2p, the Eleventh Circuit recognized

that fibromyalgia’s “hallmark is ... a lack of objective evidence,” as it “often

lacks medical or laboratory signs and is generally diagnosed mostly on a [sic]

individual’s described symptoms.” Moore v. Barnhart, 405 F.3d 1208, 1211

(11th Cir. 2005) (citing Stewart v. Apfel, No. 99-6132, 245 F.3d 793 (11th Cir.

Dec. 20, 2000)); accord Somogy v. Comm’r of Soc. Sec., 366 F. App’x 56, 63 (11th

Cir. 2010) (“We, along with several other courts, have recognized that

fibromyalgia ‘often lacks medical or laboratory signs, and is generally

diagnosed mostly on an individual's described symptoms,’ and that the

‘hallmark’ of fibromyalgia is therefore ‘a lack of objective evidence.’”).

SSR 12-2p clarifies that a claimant’s subjective statements about the

effects of fibromyalgia are evaluated under the same standard as other

subjective complaints of disabling symptoms,7 which states:

7 See SSR 12-2p, 2012 WL 3104869, at *5 & n.17 (in evaluating a person’s statements

about his or her symptoms and functional limitations from fibromyalgia, the

Commissioner follows “the two-step process set forth” in 20 C.F.R § 404.1529(b)-(c),

and SSR 96-7p); Sorter v. Soc. Sec. Admin., Comm’r, 773 F. App’x 1070, 1073 (11th

Cir. 2019) (“Social Security Ruling 12-2p provides guidance on how the SSA develops

evidence that a person has a medically determinable impairment of fibromyalgia and

how it evaluates fibromyalgia in disability claims. See generally SSR 12-2p, 2012 WL

3104869 (July 25, 2012). It sets out a two-step process for evaluating symptoms,

which involves (1) determining whether medical signs and findings show that the

person has a medically determinable impairment, and (2) once a medically

determinable impairment is established, evaluating the ‘intensity and persistence of

the person’s pain or any other symptoms’ and determining ‘the extent to which the

symptoms limit the person’s capacity for work.’ Id. Then, to decide whether a person

is disabled based on a medically determinable impairment of fibromyalgia, the SSA

If the record shows that the claimant has a medically-

determinable impairment that could reasonably be expected to

produce her symptoms, the ALJ must evaluate the intensity and

persistence of the symptoms in determining how they limit the

claimant's capacity for work. 20 C.F.R. § 404.1529(c)(1). In doing

so, the ALJ considers all of the record, including the objective

medical evidence, the claimant’s history, and statements of the

claimant and her doctors. Id. § 404.1529(c)(1)-(2). The ALJ may

consider other factors, such as: (1) the claimant’s daily activities;

(2) the location, duration, frequency, and intensity of the

claimant’s pain or other symptoms; (3) any precipitating and

aggravating factors; (4) the type, dosage, effectiveness, and side

effects of the claimant’s medication; (5) any treatment other than

medication; (6) any measures the claimant used to relieve her pain

or symptoms; and (7) other factors concerning the claimant’s

functional limitations and restrictions due to her pain or

symptoms. Id. § 404.1529(c)(3). The ALJ then will examine the

claimant’s statements regarding her symptoms in relation to all

other evidence and consider whether there are any inconsistencies

or conflicts between those statements and the record. Id. §

404.1529(c)(4).

Strickland v. Comm’r of Soc. Sec., 516 F. App’x 829, 831–32 (11th Cir. 2013).

While objective evidence is not required to substantiate a claimant’s

subjective claims as to fibromyalgia, the lack of such evidence is still a valid

consideration under both SSR 12-2p and the symptom-evaluation regulations,

20 C.F.R § 404.1529(b)–(c). It is not reversible error for an ALJ to note a lack

of objective evidence, so long as the decision does not indicate the ALJ gave

undue weight to this lack of evidence and that the ALJ considered both the

medical and non-medical evidence in the record in evaluating the claimant’s

considers the regular five-step sequential evaluation process used for any adult claim

for disability benefits. Id.”).

statements. See Lorenzi v. Comm’r, Soc. Sec. Admin., 550 F. App’x 855, 857

(11th Cir. 2013) (“Although we have indicated that the ‘hallmark’ of

fibromyalgia is a ‘lack of objective evidence,’ . . ., the ALJ did not rely on the

absence of objective evidence of [the claimant’s] hand pain. Rather, the ALJ

relied on the inconsistencies between [the claimant’s] descriptions of her daily

activities, the objective medical evidence, and her claims of pain. The ALJ thus

articulated explicit and adequate reasons for choosing to discredit [the

claimant’s] testimony”).

While Ms. Torres concedes that the ALJ has the discretion to determine

whether a claimant’s alleged symptoms are consistent with the record, Ms.

Torres argues that the ALJ here “does not believe” that Ms. Torres has

fibromyalgia, and therefore cannot adequately evaluate Ms. Torres’ subjective

complaints of pain. (Doc. 24, pp. 7). The undersigned disagrees. The ALJ gave

reasons for determining that Ms. Torres’ subjective complaints about the

intensity, persistence, and limiting effects of her symptoms are not entirely

consistent with the medical evidence and other evidence in the record. (Tr. 25–

27). The ALJ explained:

After careful consideration of the evidence, [the undersigned]

find[s] that the claimant’s medically determinable impairments

could reasonably be expected to cause the alleged symptoms;

however, the claimant’s statements concerning the intensity,

persistence and limiting effects of these symptoms are not entirely

consistent with the medical evidence and other evidence in the

record for the reasons explained in this decision.

As for the claimant’s statements about the intensity, persistence,

and limiting effects of her symptoms, they are inconsistent because

they are not fully supported by objective8 evidence. Although the

claimant reported that she is unable to work, her course of

treatment has been conservative and routine. The claimant

alleged being severely limited by fibromyalgia but the record

shows only mild clinical findings often with no signs of muscle or

joint tenderness. Indeed, upon examination, the claimant was

found to have only one positive trigger point which is inconsistent

with a diagnosis of fibromyalgia. The record shows that the

claimant required routine, non-emergency care for her physical

impairments with the exception of her shoulder surgery. . . . Based

on the overall medical evidence of record, I limited the claimant to

a range of simple, unskilled light work. The record does not

support a more restrictive functional capacity.

(Tr. 26–27).

The ALJ reviewed the medical evidence, noting that “the claimant is not

nearly as impaired as she alleged.” (Tr. 25). The ALJ reviewed Ms. Torres’

treatment notes just prior to her alleged onset date, from December 2016, and

underscored that Ms. Torres reported that she was independent without

difficulty and able to work full time. (Tr. 25, 386). Notes from the same physical

therapy sessions state that “[o]verall rehabilitation potential is good.” (Tr.

388). Rheumatology treatment records from November 2016 through March

2017 note that Ms. Torres diagnosed herself with fibromyalgia in 2013 and has

8 Although the ALJ explicitly stated that Ms. Torres’ symptoms were not fully

supported by the objective evidence, the ALJ went on to discuss the other evidence of

record, including Ms. Torres’ reported complaints during treatment and her

conservative treatment history.

“multiple non-defining features of fibromyalgia syndrome including sleep

disorder, fatigue, headaches, myofascial pain syndrome, short term memory

problems, mental fog, et cetera.” (Tr. 420–442). Rheumatology records further

note that Ms. Torres “gets around the room without use of adaptive devices”

but exhibited “typical fibromyalgia trigger points throughout.” (Tr. 421, 423).

Ms. Torres’ treating rheumatologist counseled Ms. Torres on an incremental

exercise routine, providing that Ms. Torres’ “goal should be 30 to 40 mins. 4 or

5 days weekly” of aerobic exercise, including walking, swimming, or exercise

bike. (Tr. 25, 424). On examination, Ms. Torres displayed joint tenderness in

one or two of twenty-eight joints. (Tr. 25, 428, 433). By March 2017, Ms. Torres’

rheumatologist noted that Ms. Torres “is doing better with her fibromyalgia

symptoms,” but that Ms. Torres “decided to quit her job” and experienced a

significant improvement in symptoms. (Tr. 25, 438). Beyond tenderness on

palpation of the right index finger and cervical spine pain at extreme limits of

range of motion, Ms. Torres’ musculoskeletal system review was otherwise

unremarkable. (Tr. 25, 439–40).

Beyond treatment for a urinary tract infection in December 2017, Ms.

Torres did not seek additional treatment for approximately eleven months,

when she reported abdominal pain with nausea. (Tr. 25, 471, 521–22).

Following an esophagogastroduodenoscopy, Ms. Torres was diagnosed with

GERD and dyspepsia, and prescribed anti-reflux medication. (Tr. 25, 531–37).

After experiencing a return of joint pain, Ms. Torres underwent imaging

of her lumbar spine, which revealed mild levoconvex curvature of the lumbar

spine, minimal endplate spurring at multiple levels, mild facet hypertrophy

with no fracture. (Tr. 25, 647–48). In August 2018, Ms. Torres returned to

treatment with complaints of muscle aches. (Tr. 748). On examination, Ms.

Torres showed normal curvature of spine, a negative straight leg test, and

normal extremities. (Tr. 25, 749).

In March 2019, Ms. Torres returned to treatment to establish care with

a new provider. (Tr. 789). Treatment records show normal range of motion, no

edema or tenderness, and note that Ms. Torres’ fibromyalgia is being managed.

(Tr. 789–92). At a May 2019 follow up, Ms. Torres’ musculoskeletal review

notes arthralgias and myalgias, but negative for back and neck pain, with no

edema or tenderness, and normal range of motion. (Tr. 796–97). In March

2020, Ms. Torres reported her pain as a 2/10, with her worst discomfort level

at a 6/10. (Tr. 846–47). Ms. Torres’ reported pain, however, appears to be

related to her shoulder surgery recovery. (Id.). Nevertheless, treatment notes

from April 2020 suggest that Ms. Torres still suffered from “fibromyalgia pain,”

though Ms. Torres reported that she was “trying [the] best she can to stay

active and busy.” (Tr. 867–69).

The ALJ also considered Ms. Torres’ treatment, noting that “her course

of treatment has been conservative and routine,” and that Ms. Torres “required

routine, non-emergency care for her physical impairments with the exception

of shoulder surgery to repair a rotator cuff tear.” (Tr. 26–27). The Regulations

provide an ALJ will consider “[t]he type, dosage, effectiveness, and side effects

of any medication” when evaluating a claimant's testimony about her

symptoms. See 20 C.F.R. § 404.1529(c)(3)(iv); see also SSR 16-3p. The record

here shows Ms. Torres was generally treated with medication and did not

require more aggressive treatment, such as emergency room visits for

fibromyalgia pain or trigger point injections. See Harrison v. Comm’r of Soc.

Sec., 569 F. App’x 874, 877 (11th Cir. 2014) (comparing “more aggressive”

fibromyalgia treatments to more conservative, routine methods).

Ms. Torres’ argument that the ALJ did not believe that Ms. Torres had

fibromyalgia is misplaced. The ALJ acknowledged Ms. Torres’ fibromyalgia

diagnosis, made a finding that it constituted a severe impairment, and

repeatedly noted Ms. Torres’ fibromyalgia symptoms and treatment course

throughout his decision. (See Tr. 22–27). After properly comparing the evidence

of mild symptoms and conservative treatment against Ms. Torres’ subjective

complaints about the intensity, persistence, and limiting effects of her

symptoms, the ALJ concluded that Ms. Torres’ subjective complaints were not

entirely consistent with the medical evidence and other evidence in the record.

(See Tr. 25–27). The ALJ did not discredit Ms. Torres’ diagnosis.

While Ms. Torres had a history of medical treatment, the evidence of

record did not fully support Ms. Torres’ allegations of disability. See SSR 12-

2p, 2012 WL 3104869, at *5 (“If objective medical evidence does not

substantiate the person’s statements about the intensity, persistence, and

functionally limiting effects of symptoms, we consider all of the evidence in the

case record, including . . . medications or other treatments the person uses, or

has used, to alleviate symptoms . . . ”). The ALJ’s decision adequately indicates

he properly evaluated Ms. Torres’ subjective complaints, including symptoms

related to her fibromyalgia and Ms. Torres’ treatment history, in reaching his

disability determination. (See Tr. 25–27).

Thus, the record provides substantial evidence to support the ALJ’s

finding that Ms. Torres’ subjective statements about her symptoms and

limitations were inconsistent with the medical and other evidence.

Accordingly, the ALJ did not err.

2. Whether substantial evidence supports the ALJ’s RFC

assessment regarding Ms. Torres’ shoulder pain.

Ms. Torres argues that the ALJ’s formulated RFC should have included

specific limitations related to Ms. Torres’ shoulder injury, surgery, and

recovery. (Doc. 24, pp. 14–15). The Commissioner responds that the ALJ

properly considered Ms. Torres’ shoulder pain, and that Ms. Torres failed to

show that her shoulder pain was a severe impairment for twelve months. (Id.

at 17). The Commissioner further argues that Ms. Torres failed to show that

any limitations caused by her shoulder impairments exceed the RFC or are not

otherwise accounted for in the RFC. (Id.).

A claimant’s RFC is the most work a claimant can do despite any

limitations caused by her impairments. 20 C.F.R. § 404.1545(a)(1). In

formulating a claimant’s RFC, the ALJ must consider all impairments and the

extent to which they are consistent with medical evidence. 20 C.F.R. §

404.1545(a)(2). An ALJ may not arbitrarily reject or ignore uncontroverted

medical evidence. McCruter v. Bowen, 791 F.2d 1544, 1548 (11th Cir. 1986)

(administrative review must be of the entire record; accordingly, ALJ cannot

point to evidence that supports the decision but disregard other contrary

evidence). A claimant’s RFC is a formulation reserved for the ALJ, who must

support his findings with substantial evidence. See 20 C.F.R. § 404.1546(c);

Beegle v. Comm’r of Soc. Sec. Admin., 482 F. App’x 483, 486 (11th Cir. 2012)

(“A claimant’s residual functional capacity is a matter reserved for the ALJ’s

determination, and while a physician’s opinion on the matter will be

considered, it is not dispositive.”); Cooper v. Astrue, 373 F. App’x 961, 962 (11th

Cir. 2010) (the assessment of a claimant’s RFC and corresponding limitations

are “within the province of the ALJ, not a doctor.”). The scope of review is thus

limited to determining whether the findings of the Commissioner are

supported by substantial evidence and whether the correct legal standards

were applied. 42 U.S.C. § 405(g); Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th

Cir. 2002). Substantial evidence is “more than a mere scintilla” and requires

only “such relevant evidence as a reasonable mind might accept as adequate to

support a conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019).

Here, to support the RFC for light work, the ALJ relied on Ms. Torres’

testimony and the objective medical record, including medical imaging, Ms.

Torres’ treatment notes, treatment history, and the opinions of agency medical

consultants. (Tr. 25–27). As discussed above, the ALJ also considered Ms.

Torres’ subjective complaints of pain in assessing the RFC. (Id.).

In assessing Ms. Torres’ medical record, the ALJ chronologically

reviewed Ms. Torres’ treatment history, beginning in 2016. (Tr. 25, 386). While

the ALJ’s medical record review focused primarily on Ms. Torres’ symptoms

and associated treatment related to her fibromyalgia, the ALJ also discussed

Ms. Torres’ treatment of a urinary tract infection (Tr. 25, 471, 521–22),

complaints of abdominal pain and a GERD diagnosis (Tr. 25, 531–37, 652),

shoulder pain and subsequent surgery associated with a rotator cuff injury (Tr.

26, 678–696, 845–48, 850, 852, 854, 856–57), as well as mental impairments

including anxiety and memory loss (Tr. 26, 670–77). Related to Ms. Torres’

shoulder injury, the ALJ cites Ms. Torres’ September 2019 rotator cuff surgery

to repair a partial thickness tear (Tr. 26, 678–696, 845–48, 850, 852, 854, 856–

57), noting that Ms. Torres “reported that following physical therapy her

shoulder pain was minimal.” (Tr. 26). The ALJ continued to discuss Ms. Torres’

shoulder issues, citing follow up examinations and physical therapy treatment

notes from March 2020 where Ms. Torres had improvements in both range of

motion and strength (Tr. 26, 848).

Despite Ms. Torres’ contention that the ALJ was required to include a

limitation related to Ms. Torres’ shoulder in the RFC, the record, including Ms.

Torres’ treatment notes, do not support Ms. Torres’ alleged severity. Moreover,

substantial evidence, as evidenced above, supports the ALJ’s finding that Ms.

Torres can perform light work.

While Ms. Torres argues that her shoulder pain caused a severe

impairment for a period of at least twelve months, Ms. Torres has not shown

evidence to support her contention. To be entitled to benefits, a claimant must

be disabled, meaning she must be unable to engage in 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. §§ 423(d)(1)(A), 1382c(a)(3)(A). Further, the claimant bears the

burden of providing medical evidence showing she is disabled and the ALJ is

charged with developing a full and fair record. Ellison v. Barnhart, 355 F.3d

1272, 1276 (11th Cir. 2003). If the claimant demonstrates that the record

reveals evidentiary gaps which result in unfairness or “clear prejudice,”

remand is warranted. Brown v. Shalala, 44 F.3d 931, 935 (11th Cir. 1995);

Henry v. Comm’r of Soc. Sec., 802 F.3d 1264, 1267 (11th Cir. 2015) (“Remand

for further factual development of the record before the ALJ is appropriate

where the record reveals evidentiary gaps which result in unfairness or clear

prejudice”) (internal quotation and citation omitted).

Here, Ms. Torres has failed to demonstrate that her shoulder pain was a

severe impairment for at least twelve months. While Ms. Torres may have

experienced shoulder pain for a period longer than twelve months, Ms. Torres

has not demonstrated that such pain constituted a severe impairment and

rendered her unable to engage in any substantial gainful activity for that

entire period. Prior to formulating a claimant’s RFC, the ALJ considers the

medical severity of a claimant’s impairments. 20 C.F.R. § 404.1520(a)(4)(ii). An

impairment or combination of impairments is not considered severe where it

does not significantly limit the claimant’s physical or mental ability to perform

basic work activities. Turner v. Comm’r of Soc. Sec., 182 F. App’x 946, 948 (11th

Cir. 2006) (per curiam) (citations omitted); 20 C.F.R. § 404.1521. While an ALJ

need not determine that every impairment is severe, an ALJ must consider all

the record evidence, including evidence of non-severe impairments, in making

the RFC determination. Phillips, 357 F.3d at 1238.

Here, the ALJ determined that Ms. Torres’ shoulder impairments,

considered singly and in combination, did not cause more than minimal

limitation in Ms. Torres’ ability to perform basic mental work activities. (Tr.

22). In making this determination, the ALJ reviewed Ms. Torres’ ability to

perform basic work activities. (/d). Despite finding that Ms. Torres’ shoulder

impairments were non-severe, the ALJ reviewed Ms. Torres’ medical history

related to shoulder pain, treatment, surgery, and recovery, in the ALJ’s RFC

formulation. (Tr. 25-27). Based on the ALJ’s acknowledgment and review of

Ms. Torres’ shoulder impairment history and medical record, substantial

evidence supports the ALJ’s decision to not include explicit limitations in the

RFC related to Ms. Torres’ shoulder impairments.

For all these reasons, the court finds no error in the ALJ’s decision and

finds that it is supported by substantial evidence.

IV. CONCLUSION

For the reasons stated, the Commissioner’s decision is AFFIRMED, and

the Clerk is directed to enter judgment in favor of the Commissioner.

ORDERED in Tampa, Florida on April 19, 2022.

Aranda. Are he Sarma.

AMANDA ARNOLD SANSONE

United States Magistrate Judge

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