Reyno v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

JOSEPH REYNO,

Plaintiff,

v. Case No.: 6:21-cv-310-MCR

ACTING COMMISSIONER OF

THE SOCIAL SECURITY

ADMINISTRATION,

Defendant.

/

MEMORANDUM OPINION AND ORDER1

THIS CAUSE is before the Court on Plaintiff’s appeal of an

administrative decision denying his applications for a period of disability,

disability insurance benefits (“DIB”), and supplemental security income

(“SSI”). Following an administrative hearing held on July 21, 2020, the

assigned Administrative Law Judge (“ALJ”) issued a decision, finding

Plaintiff not disabled from September 27, 2017, the alleged disability onset

date, to August 20, 2020, the date of the decision. (Tr. 10.) The Court has

reviewed the record, briefs, and the applicable law. For the reasons stated

herein, the Commissioner’s decision is AFFIRMED.

1 The parties consented to the exercise of jurisdiction by a United States

Magistrate Judge. (Doc. 24.)

I. Standard of Review

The scope of this Court’s review is limited to determining whether the

Commissioner applied the correct legal standards, McRoberts v. Bowen, 841

F.2d 1077, 1080 (11th Cir. 1988), and whether the Commissioner’s findings

are supported by substantial evidence, Richardson v. Perales, 402 U.S. 389,

390 (1971). “Substantial evidence is more than a scintilla and is such

relevant evidence as a reasonable person would accept as adequate to support

a conclusion.” Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th

Cir. 2004). 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 consider both evidence

that is favorable and evidence that is unfavorable to the decision. Foote v.

Chater, 67 F.3d 1553, 1560 (11th Cir. 1995); accord Lowery v. Sullivan, 979

F.2d 835, 837 (11th Cir. 1992) (stating the court must scrutinize the entire

record to determine the reasonableness of the Commissioner’s factual

findings).

II. Discussion

A. Issues on Appeal

Plaintiff raises two issues on appeal. First, Plaintiff argues that the

ALJ failed to apply the correct legal standards to his testimony regarding

pain and limitations. (Doc. 29 at 9.) Plaintiff argues that while the ALJ cited

to the objective medical evidence, the ALJ failed to discuss or weigh any of

the relevant factors listed in 20 C.F.R. § 404.1529(c)(3)(i)-(vii) when

evaluating Plaintiff’s testimony regarding his pain and limitations. (Id. at

11.) Second, Plaintiff argues that he is entitled to a legitimate valid hearing

before an ALJ who has lawful authority to hear and decide his claim based on

valid legal authority. (Id.) Plaintiff argues that on July 21, 2020, the date of

his hearing, there was no validly appointed Commissioner of Social Security

because SSA’s leadership by a single individual removable only for

inefficiency, neglect, or malfeasance violates the United States Constitution.

(Id.)

As to Plaintiff’s first issue, Defendant argues that the ALJ properly

considered the regulatory factors in evaluating the consistency of Plaintiff’s

subjective complaints. (Doc. 32 at 18.) Defendant further argues that

Plaintiff’s treatment history and objective medical evidence show that his

symptoms were not disabling. (Id. at 20.) Defendant asserts that:

In January 2019, he was still having some pain, but he was able

to work out at the gym for 30 to 45 minutes. His doctor advised

him to avoid high impact activities and to continue using some

type of padding when walking and standing. This evidence

substantially supports the ALJ’s finding that Plaintiff was not

totally disabled, as he alleged.

((Id. at 21 (internal citations omitted.).)

As to Plaintiff’s second issue, Defendant argues:

The Parties agree that 42 U.S.C. §902(a)(3) violates the

separation of powers to the extent it is construed as limiting the

President’s authority to remove the Commissioner without cause.

But without more, that conclusion does not support setting aside

an unfavorable SSA disability benefits determination. As the

Supreme Court explained in the past in Collins v. Yellen, 141 S.

Ct. 1761, 1787-89 (2021), even where an unconstitutional

statutory removal restriction exists, a plaintiff seeking relief on

that basis must show that the restriction actually caused him

harm. Plaintiff cannot make such a showing.

(Id. at 4.)

Defendant further argues that Plaintiff’s rehearing request should be

denied under the harmless error doctrine, the de facto officer doctrine, the

rule of necessity, and broad prudential considerations. (Id. at 13.)

B. Standard for Evaluating Opinion Evidence and Subjective

Symptoms

The ALJ is required to consider all the evidence in the record when

making a disability determination. See C.F.R. §§ 404.1520(a)(3),

416.920(a)(3). With regard to medical opinions, the rules in 20 C.F.R. §§

404.1520c, 416.920c apply to claims filed on or after March 27, 2017.2 See

Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 F.R.

2 The rules in 20 C.F.R. § 404.1527, 416.927 apply to claims filed before

March 27, 2017.

5844-01, 2017 WL 168819 (Jan. 18, 2017). Because Plaintiff’s claim was filed

after March 17, 2017, the Court applies the revised rules and regulations in

effect at the time of the ALJ’s decision.

Under the revised rules and regulations, the ALJ need “not defer or

give any specific evidentiary weight, including controlling weight, to any

medical opinion(s) . . . , including those from [the claimant’s] medical

sources.” 20 C.F.R. §§ 404.1520c(a), 416.920c(a). The ALJ will articulate in

the administrative decision how persuasive all of the medical opinions are in

the case record, 20 C.F.R. § 404.1520c(b), 416.920c(b), but need not articulate

how evidence from non-medical sources has been considered, 20 C.F.R. §

404.1520c(d), 416.920c(d).

“When a medical source provides one or more medical opinions,” those

opinions will be considered “together in a single analysis,” using the factors

listed in 20 C.F.R. §§ 404.1520c(c)(1), (c)(5), 416.920c(c)(a), (b)(1) through

(c)(5) as appropriate. The ALJ is “not required to articulate how [he/she]

considered each medical opinion . . . from one medical source individually.”

20 C.F.R. §§ 404.1520c(b)(1), 416.920c(b)(1).

When evaluating the persuasiveness of medical opinions, the most

important factors are supportability3 and consistency4. 20 C.F.R. §§

404.1520c(a), (b)(2), 416.920c(a), (b)(2). Thus, the ALJ “will explain how

[he/she] considered the supportability and consistency factors for a medical

source’s medical opinions” in the determination or decision but is not

required to explain how he/she considered the rest of the factors listed in 20

C.F.R. §§ 404.1520c(c), 416.920c(c). 20 C.F.R. § 404.1520c(b)(2),

416.920c(b)(2). As explained recently by another court in this District:

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. In

other words, the ALJ’s analysis is directed to whether the

medical source’s opinion supported by the source’s own records

and consistent with the other evidence of record—familiar

concepts within the framework of social security litigation.

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

*3 (M.D. Fla. Apr. 6, 2021) (emphasis in original) (report and

recommendation adopted by 2021 WL 1565162 (M.D. Fla. Apr. 21, 2021)).

When “two or more medical opinions . . . about the same issue are both

equally well-supported . . . and consistent with the record . . . but are not

3 The more relevant the objective medical evidence and supporting

explanations presented by a medical source are to support his or her medical

opinion(s) . . . , the more persuasive the medical opinions . . . will be.” 20 C.F.R. §

404.1520c(c)(1).

4 “The more consistent a medical opinion(s) . . . is with the evidence from

other medical sources and nonmedical sources in the claim, the more persuasive the

medical opinion(s) . . . will be.” 20 C.F.R. § 404.1520c(c)(2).

exactly the same,” the ALJ will articulate how he/she considered the other

most persuasive factors listed in 20 C.F.R. §§ 404.1520c(c)(3) through (c)(5),

416.920c(c)(3) through (c)(5), which include a medical source’s relationship

with the claimant,5 specialization, and other factors.6 20 C.F.R. §§

404.1520c(b)(3), 416.920c(b)(3).

When a claimant seeks to establish disability through his own

testimony of pain or other subjective symptoms, the Eleventh Circuit’s three-

part “pain standard” applies. Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir.

1991) (per curiam). “If the ALJ decides not to credit such testimony, he [or

she] must articulate explicit and adequate reasons for doing so.” Id.

The pain standard requires (1) evidence of an underlying

medical condition and either (2) objective medical evidence that

confirms severity of the alleged pain arising from that 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.

5 The relationship with the claimant factor combines consideration of the

following issues: the length of the treatment relationship, the frequency of the

examinations, the purpose of the treatment relationship, the extent of the

treatment relationship, and the examining relationship. 20 C.F.R. §§

404.1520c(c)(3)(i)-(v), 416.920c(c)(3)(i)-(v).

6 The other factors may include: the medical source’s familiarity with the

other evidence in the claim; the medical source’s understanding of the disability

program’s policies and evidentiary requirements; and the availability of new

evidence that may render a previously issued medical opinion more or less

persuasive. 20 C.F.R. §§ 404.1520c(c)(5), 416.920c(c)(5).

Once a claimant established that his subjective symptom is disabling

through “objective medical evidence from an acceptable medical source that

shows . . . a medical impairment(s) which could reasonably be expected to

produce the pain or other symptoms,” pursuant to 20 C.F.R. §§ 404.1529(a),

416.929(a), “all evidence about the intensity, persistence, and functionally

limiting effects of pain or other symptoms must be considered in addition to

the medical signs and laboratory finding in deciding the issue of disability,”

Foote, 67 F.3d at 1561. See also SSR 16-3p7 (stating that after the ALJ finds

a medically determinable impairment exists, the ALJ must analyze ‘the

intensity, persistence, and limiting factors of the individual’s symptoms” to

determine “the extent to which an individual’s symptoms limit his or her

ability to perform work-related activities”).

As stated in SSR 16-3p:

In considering the intensity, persistence, and limiting effects of

an individual’s symptoms, [the ALJ must] examine the entire

case record, including the objective medical evidence; an

individual’s statements about the intensity, persistence, and

limiting effects of symptoms; statements and other information

provided by medical sources and other persons; and any other

relevant evidence in the individual’s case record.

. . .

In evaluating an individual’s symptoms, it is not sufficient for our

adjudicators to make a single, conclusory statement that “the

individual’s statements about his or her symptoms have been

7 SSR 16-3p rescinded and superseded SSR 96-7p, effective March 28, 2016,

eliminating the use of the term “credibility,” and clarifying that “subjective

symptom evaluation is not an examination of an individual’s character.” SSR 16-3p.

considered” or that “the statements about the individual’s

symptoms are (or are not) supported or consistent.” It is also not

enough for our adjudicators simply to recite the factors described

in the regulations for evaluating symptoms.8 The determination

or decision must contain specific reasons for the weight given to

the individual’s symptoms, be consistent with and supported by

the evidence, and be clearly articulated so the individual and any

subsequent reviewer can assess how the adjudicator evaluated

the individual’s symptoms.

. . .

In evaluating an individual’s symptoms, our adjudicators will not

assess an individual’s overall character or truthfulness in the

manner typically used during an adversarial court litigation. The

focus of the evaluation of an individual’s symptoms should not be

to determine whether he or she is a truthful person. Rather, our

adjudicators will focus on whether the evidence establishes a

medically determinable impairment that could reasonably be

expected to produce the individual’s symptoms and given the

adjudicator’s evaluation of the individual’s symptoms, whether

the intensity and persistence of the symptoms limit the

individual’s ability to perform work-related activities[.]

SSR 16-p.

“[A]n individual’s attempts to seek medical treatment for symptoms

and to follow treatment once it is prescribed” will also be considered “when

evaluating whether symptom intensity and persistence affect the ability to

8 These factors include: (1) a 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 any medication taken to alleviate the claimant’s pain or other symptoms;

(5) any treatment, other than medication, received by the claimant to relieve the

pain or other symptoms; (6) any measures (other than treatment) used to relieve the

pain or other symptoms (e.g., lying flat on his or her back, standing for 15 to 20

minutes every hour, or sleeping on a board); and (7) any other factors concerning

the claimant’s functional limitations and restrictions due to pain or other

symptoms. 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3); SSR 16-3p.

perform work-related activities.” Id. “[I]f the frequency or extent of the

treatment sought by an individual is not comparable with the degree of the

individual’s subjective complaints, or if the individual fails to follow

prescribed treatment that might improve symptoms, [the adjudicator] may

find the alleged intensity and persistence of an individual’s symptoms are

inconsistent with the overall evidence of record.” Id. However, the

adjudicator “will not find an individual’s symptoms inconsistent with the

evidence in the record on this basis without considering possible reasons he

or she may not comply with treatment or seek treatment consistent with the

degree of his or her complaints.” Id. In considering an individual’s treatment

history, the adjudicator may consider, inter alia, one or more of the following:

• That the individual may have structured his or her activities

to minimize symptoms to a tolerable level by avoiding physical

activities or mental stressors that aggravate his or her

symptoms;

• That the individual may receive periodic treatment or

evaluation for refills of medications because his or her

symptoms have reached a plateau;

• That the individual may not agree to take prescription

medications because the side effects are less tolerable than the

symptoms;

• That the individual may not be able to afford treatment and

may not have access to free or low-cost medical services;

• That a medical source may have advised the individual that

there is no further effective treatment to prescribe or

recommend that would benefit the individual;

• That due to various limitations (such as language or mental

limitations), the individual may not understand the

appropriate treatment for or the need for consistent

treatment.

Id.

C. Relevant Evidence and Administrative Findings

1. Halifax Health

Plaintiff was involved in a motor vehicle accident and was

hospitalized from September 27, 2017, to October 19, 2017. (Tr. 352.)

Hospital records provide that Plaintiff was the restrained driver in a head-on

collision with a vehicle that did not have its head lights on. (Tr. 355.) At the

time of admission, Plaintiff had deformity to his right thigh, and an open

wound on his right ankle with deformity in that region. (Tr. 360.) X-ray of

the right leg revealed a right femur fracture and X-ray of the right tib-fib

revealed a comminuted fracture of the medial malleolus. (Id.) At the time of

discharge, Plaintiff had undergone two orthopedic surgeries, and was waiting

for swelling to subside in his right lower extremity/ankle area. (Tr. 355.)

Upon review of the X-rays, the recommended treatment plan was

“reduction and intramedullary nail fixation of right femur with irrigation and

debridement and possible open reduction, internal fixation of right ankle and

foot.” (Tr. 363.) On October 3, 2017, Plaintiff underwent an “[i]rrigation and

debridement of open right calcaneus fracture, irrigation, debridement of right

distal tibia fracture, open reduction and internal fixation medial malleolus

fracture.” (Tr. 367.) Upon discharge, Plaintiff was instructed to not get out

of bed or chairs independently, and it was recommended that he use a

wheeled walker. (Tr. 472.)

On October 19, 2017, Plaintiff underwent irrigation and debridement of

his right foot, open reduction internal fixation of his right calcaneus, and

application of wound VAC dressing. (Tr. 592.) On October 26, 2017, Plaintiff

underwent irrigation debridement and split-thickness skin graft of his right

foot. (Tr. 594.) As of October 27, 2017, Plaintiff was performing with less

than half of his locomotion effort and required assistance of at least one

person when walking. (Tr. 644.) As of November 25, 2019, Plaintiff’s doctor

noted:

Overall, [Plaintiff] is doing very well with his right ankle

subtalar arthrodesis. He does have slight evidence of posterior

medical osteoarthritis [in] the tibiotalar joint. However, this

subtalar arthrodesis appears to be completely consolidated . . . I

advised [Plaintiff] that there is a chance that he developed

fulminant arthritis of the remainder of his ankle. However, as

long as he is doing well and not having any significant

discomfort, [he] will continue proceeding forward with normal

activity.

(Tr. 896.) Plaintiff also reported doing well and being happy with his overall

progress. (Id.)

2. Orthopedic Clinic of Daytona

On April 23, 2018, Plaintiff underwent additional surgery for removal

of deep hardware, right subtalar arthrodesis with iliac crest bone graft and

lateral wall ostectomy of calcaneus. (Tr. 665.) At Plaintiff’s post-operative

follow-up on May 8, 2018, the surgical incisions were well-healed, there was

no evidence of erythema or drainage, and there was minimal swelling with

full sensation in his right ankle. (Tr. 679.) Plaintiff was instructed to remain

non-weightbearing and was placed into a short leg fiberglass cast. (Id.) At

Plaintiff’s post-operative follow-up appointment, on June 4, 2018, Plaintiff

ambulated with a knee scooter and wore a short leg cast on his right leg. (Tr.

674.) Plaintiff also complained of frequent mild to moderate pain, and, at

that time, was taking Hydrocodone 10-325[]mg for pain relief. (Id.)

Plaintiff’s cast fit well, and he reported slow improvement. (Id.)

3. Psychological Assessment

On July 5, 2019, Plaintiff underwent a psychological evaluation with

Dr. Diane Ramirez at Flagler Psychological Services. (Tr. 850.) In that

evaluation, Plaintiff was diagnosed with “major depressive disorder, single

episode, moderate.” (Tr. 853.) Dr. Ramirez’s summary of the evaluation is as

follows:

Mr. Reyno is a 44-year-old male who was evaluated at the

request of the Social Security Administration’s Division of

Disability Determination. He presented with depressed feelings

including sadness, crying spells, lack of motivation to do much,

including sometimes not wanting to complete hygiene rituals,

anhedonia and lack of energy. He was in a serious motor vehicle

accident in 2017 and since he is anxious about what might

happen to him or his family. He reports feeling paranoid like

someone would hurt them. He doesn’t want to be around people

and often isolates himself. His sleep is backwards and he sleeps

most of the day and is up all night. No psychotic symptoms are

reported. He feels hopeless because of the prognosis the doctors

gave him and the extreme pain he is in. He doesn’t want pain

medications and doesn’t want to be addicted to anything, but he

does drink a fair amount of alcohol to help him deal with the pain

and depression.

Mr. Reyno appears to meet the criteria for Major Depressive

Disorder, single episode, moderate and Alcohol Use Disorder.

The presented symptom picture is consistent with the reported

conditions. The severity of the symptoms based on observation

and client report appears to be moderate. Prognosis is considered

to be fair.

(Id.)

4. Stand-Up MRI & Diagnostic Center

On March 7, 2019, an MRI of Plaintiff’s lumbar spine revealed:

At L1-2, there is no evidence of ventral extradural defect or disc

herniation present. There is no central canal stenosis or

neuroforaminal narrowing present.

At L2-3, there is no evidence of ventral extradural defect or disc

herniation present. There is no central stenosis or

neuroforaminal narrowing present.

At L3-4, there is no evidence of ventral extradural defect or disc

herniation present. There is no central stenosis or

neuroforaminal narrowing present

At L4-5, there is broad-based posterior central and left

paracentral disc herniation with annular tearing. Disc herniation

extends approximately 6.5 mm beyond the disc margin with mild

central canal stenosis. The bilateral neuroforamina are within

normal limits.

At L5-S1, there is no evidence of ventral extradural defect or disc

herniation present. There is no central canal stenosis or

neuroforaminal narrowing present.

(Tr. 889.)

On March 14, 2019, an MRI of Plaintiff’s cervical spine revealed:

At C2-C3, there is no evidence of ventral extradural defect or disc

herniation present. There is no central canal stenosis or

neuroforaminal narrowing present.

At C3-C4, there is no evidence of ventral extradural defect or disc

herniation present. There is no central canal stenosis or

neuroforaminal narrowing present.

At C4-C5, there is posteroventral disc herniation with annular

tear. There is thecal sac and cord impingement. Disc herniation

extends approximately 2[]mm beyond the disc margin. There is

mild foraminal stenosis bilaterally.

At C5-C6, there is a bulging annulus which abuts the ventral

thecal sac. There is no central canal stenosis or neuroforaminal

narrowing present.

At C6-C7, there is no evidence of ventral extradural defect or disc

herniation present. There is no central canal stenosis or

neuroforaminal narrowing present.

At C7-T1, there is no evidence of ventral extradural defect or disc

herniation present. There is no central canal stenosis or

neuroforaminal narrowing present.

(Tr. 935.)

5. Plaintiff’s Hearing Testimony

Plaintiff appeared at the July 21, 2020 hearing before the ALJ. (Tr.

48.) He testified about his limitations, in relevant part, as follows:

Q Okay, and you were originally in the hospital for

about how long?

A It was months off and on, five separate surgeries that

went up I believe a two-month period.

Q Okay and what was your major [injury]? I know you

had a lot of different injuries but what was the main injury that

they were focusing on originally?

A Main, want to say probably ankle and heel along with

edema. All the bones in my heel and my ankle are basically

shattered.

. . .

Q . . . Okay. You said constant pain. Is that mostly in

the right foot or is it your entire right leg?

A . . . Well, my entire right leg and especially my heel

and my ankle when I’m up and moving around. Without even

concentrating all my joints, except for my elbows basically, I’m in

pain on a constant basis and it just gets worse as I do more or up

my routine.

. . .

Q So how long can you be on your feet? Like how long

can you or how far can you walk at one time?

A I’ve got about a three-hour window of activities, so if

I’m at the gym for 30 minutes, on my stretching or my biking, I

mean I can go to Walmart for 30 to 40 minutes and I want to take

the kids out for an activity, I’m limited to about an hour or so.

But like I say I have about a three-hour window where I can

actually get out and do things and after that I’m experiencing

pain in the leg and the foot more extreme than normal. The lower

back issues like that keep me fatigued and I’m kind of locked

down to the social.

Q Okay, and when you say that you have a three-hour

window, just to be clear, do you mean that you can be on your feet

walking for three hours or that all together with three hours of

activity?

A Yeah, I would say three hours of activity. Like

definitely could not walk for three hours. Just locked in the truck

drive . . . to the gym. Drive to the grocery store, maybe walk

around there for a little bit. My life right now basically consists of

going to the gym, doing a few errands, maybe going to the pool to

get my exercise in and I’m—I’m not really—I’m unsocial

basically.

Q Okay, what type of activities and/or what kind of

exercise are you able to do at the gym?

A I do biking. I do a lot of stretching and a lot of the

stretching exercises that I learned in physical therapy too.

. . .

Q Okay, you said you’re laying down a lot. Is that like

throughout the day or—

A I basically have my bedroom set up in my living room

now and its an easy access point for me to get around the house

and I’m basically on my bed lying down when I’m at home.

Q Okay. Are you taking any medications for your pain?

A I’m not taking any pain medication, far from . . .

Ibuprofen.

Q Okay. Are you having symptoms like anxiety or

depression—or [?]

A Yeah, I do have a lot of anxiety and the depression, at

first I thought I was just, you know the results of the accident

and that’s not out of it, but the energy levels and depression seem

to keep me, yeah, keep me pretty low since onset.

Q Okay. Any difficulty dealing with people like being

around other people or interacting with people?

A Yeah, that’s also a problem. Social gatherings and

things are just well, not for me anymore.

Q Okay. Any difficulties with like concentration or

memory?

A Absolutely. I remember short-term things and

focusing on different tasks. . .

Q Okay. Are you having difficulty doing like basic

dressing, bathing, things like that?

A As far as dressing myself, I can do that. The bathing

is a whole different thing. Used to be able to hop in the shower,

get cleaned up out the door and now it’s a pretty big ordeal. I

guess – I don’t know if it’s my leg or my foot but at the end of the

day I lost about a quarter of an inch of my right side so

everything is a hassle now trying to get in and out of a tub. It’s a

lot. It’s a lot of work—trying to do basic things that used to be

pretty easy.

. . .

A I wear a flip flop on my shorter leg and that kind of

balances for the left so when I do get it in the shower I can just,

you know grab a hold of the bar and lift the flip flop on one leg. It

kind of balances me out but I wouldn’t—I couldn’t get in the tub

without the flip flop. I can’t even walk around my house on the

hardwood floor at all without a shoe or something underneath my

foot. . . .

Q Okay. And difficulty doing basic chores like cooking,

cleaning, things like that?

A No, I don’t really do them. My wife and kids do a lot.

They really help out.

(Tr. 52-58.)

D. The ALJ’s Decision

The ALJ issued his decision on August 20, 2020. (Tr. 10.) At step one

of the sequential evaluation process, the ALJ found that Plaintiff had not

engaged in substantial gainful activity since his alleged disability onset date.

(Tr. 12.) At step two, he found that Plaintiff’s severe impairment was major

dysfunction of a joint. (Id.) At step three, the ALJ found that Plaintiff did

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

equaled the severity of one of the listed impairments. (Tr. 14.) Before step

four, the ALJ determined that Plaintiff had the RFC to perform sedentary

work as defined in 20 C.F.R. 404.1567(a) and 416.967(a) except he can lift

and/or carry 10 pounds occasionally, and less than 10 pounds frequently. The

ALJ determined that Plaintiff can sit, with normal breaks, for a total of 6

hours per 8-hour workday, but can only stand and/or walk, even with normal

breaks, for a total of just 2 hours in an 8-hour workday. (Id.)

The ALJ summarized some of the pertinent hearing testimony and

Plaintiff’s allegations as follows:

The claimant alleges he is disabled and unable to work due to

hip, leg, ankle, and heel pain. He further alleges that his sleep is

interrupted and limited to 4 to 6 hours of broken sleep. He is

able to care for his personal ADLs, but it is slower and more

difficult than it used to be. He indicates his medications are

aspirin and fish oil. He is able to drive a car and can go out

alone. He is able to regularly go to the pool, gym, and

chiropractor. The claimant alleges he has difficulty lifting,

squatting, bending, standing, reaching, walking, kneeling. He

has trouble getting into and out of a bathtub and trouble with

balance. He wears flip-flops on his shorter leg to balance out

their lengths.

(Tr. 15.)

The ALJ found that Plaintiff’s impairments could reasonably be

expected to cause the alleged symptoms, but his statements concerning the

intensity, persistence, and limiting effects of these symptoms were “not

entirely consistent with the medical evidence and other evidence in the

record.” (Id.) The ALJ explained:

Concerning the medical evidence, the claimant was involved in a

motor vehicle accident in September 2017, which resulted in

fractures to his right hip, thigh, calf, ankle, and heel. He

underwent an open reduction internal fixation of the right ankle

and irrigation and debridement of the tibia and calcaneus

fractures. Afterwards, he was waiting for the swelling to recede

in his right lower extremity and right ankle before a third

surgery could take place, he was discharged in October 2017 (Ex.

3F/6-11). A CT angiogram was negative for vascular injury (Ex.

3F/16). An examination of the bilateral upper extremities

revealed no significant pain with shoulder, elbow, or wrist

motion. His sensation was intact in all fingers. The left leg

revealed no obvious pain or deformity with hip, knee, or ankle

motion. His skin and sensation were intact. At follow-up after

his discharge, it was discovered that the claimant displayed

significant necrosis of his skin at the right calcaneus fracture.

Split-thickness skin graft was applied and intravenous

antibiotics were administered. A PICC line was given and the

claimant was discharged home on IV antibiotics (Ex. 3F/231).

. . .

Over time, he has progressed from being unable to bear weight to

weight bearing activities as tolerated, with the use of crutches, a

walking roller, a knee scooter, a fracture boot, and finally normal

shoe apparel. During the period, he participated in physical

therapy, chiropractic therapy, and a home exercising program.

His progress has been good overall, but he is limited in the length

of time he can stand without reprieve. Accordingly, I find that the

claimant can lift and/or carry 10 pounds occasionally and less

than 10 pounds frequently. The claimant can sit, with normal

breaks for a total of 6 hours per 8-hour workday, but can only

stand and/or walk, even with normal breaks for a total of just 2

hours per 8-hour workday. Although not a severe impairment,

because of his complaints of back and neck pain, I find that he

can never climb ladders, ropes, or scaffolds, but he can

occasionally climb ramps and stairs, balance, kneel, stoop,

crouch, and crawl.

At step four, the ALJ found that Plaintiff was unable to perform his

past relevant work as a gambling dealer. (Tr. 20.) The ALJ then considered

claimant’s residual functional capacity, age, education, work experience, and

the vocational expert’s testimony, and determined at step five that Plaintiff

could perform the requirements of general production worker, machine

tender, and assembler. (Tr. 21-22.)

E. Analysis

1. Plaintiff’s Challenge to the ALJ’s Application of the

Correct Legal Standards to Plaintiff’s Testimony of

His Pain and Limitations

When a claimant attempts to establish a disability through his own

testimony about pain or other subjective symptoms, the ALJ must apply a

three-part pain standard. Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir.

2002). Under that standard, the claimant must present: “(1) evidence of an

underlying medical condition; and (2) either (a) objective medical evidence

confirming the severity of the alleged pain; or (b) evidence that the objectively

determined medical condition can reasonably be expected to give rise to the

claimed pain.” Id.

Here, the ALJ properly applied that standard. Although the ALJ did

not cite to Wilson, he explicitly mentioned the pain standard and discussed

evidence of Plaintiff’s underlying medical conditions. The ALJ also discussed

the objective medical evidence that Plaintiff presented as to the severity of

the pain, but ultimately concluded that evidence did not support a finding

that the pain was as severe as Plaintiff claimed. Contrary to Plaintiff’s

argument that “[t]he ALJ failed to discuss or weigh any of the relevant

factors listed in 20 C.F.R. § 404.1529(c)(3)(i)-(vii) when evaluating [Plaintiff’s]

testimony regarding his pain and limitations,” the ALJ did in fact discuss and

weigh “at least some” of the factors listed in 20 C.F.R. § 404.1529(c)(3)(i)-(vii).

First, the ALJ properly stated the standards governing his evaluation

of Plaintiff’s subjective pain testimony. (Tr. 15.) Then, the ALJ discussed

Plaintiff’s alleged ankle, foot, back, and cognitive symptoms, but concluded

that Plaintiff’s statements concerning the intensity, persistence and limiting

effects of those symptoms were “not entirely consistent with the medical

evidence and other evidence in the record.” (Id.) The ALJ also discussed

Plaintiff’s independent daily activities such as showering, dressing, toilet use,

getting out of bed, walking, eating, and exercising. (Tr. 18.) Moreover, in a

clear and chronological order, the ALJ discussed the location, duration, and

intensity of Plaintiff’s pain. (See generally Tr. 10-22.) Throughout his

decision, the ALJ accounted for Plaintiff’s allegations of continued foot and

ankle pain, but also cited to Plaintiff’s reports of satisfaction with his

progress and objective medical evidence that demonstrated effective

treatment. (Id.) In one section, the ALJ summarized Plaintiff’s surgeries

and overall progression as follows:

He underwent orthopedic surgeries to repair the fractures and

debride the wounds. Over time, he has progressed from being

unable to bear weight to weight bearing activities as tolerated,

with use of crutches, a walking roller, a knee scooter, a fracture

boot, and finally normal shoe apparel. During the period, he

participated in physical therapy, chiropractic therapy, and a

home exercising program. His progress has been good overall,

but he is limited in the length of time he can stand without

reprieve.

(Id. at 18.)

Thus, the ALJ found that Plaintiff passed through the threshold of the

“pain standard,” but rather his testimony about his limitations was not fully

supported by the record. To that end, there is substantial evidence in the

record that shows Plaintiff’s progressive improvement, supporting the ALJ’s

decision that Plaintiff was not totally disabled precluding alternative work as

he alleged. (See, e.g., Tr. 815 (stating, on November 9, 2017, that plaintiff

was ambulating with a walker and was told to continue to be non-

weightbearing on the lower right extremity); Tr. 809 (stating, on November

16, 2017, that Plaintiff’s pain level was about a “7” and that he reported no

anxiety or depression); Tr. 804 (reporting, on November 27, 2017, that his

ankle/foot pain was worsening, but he was taking Percocet for pain relief,

which was helping to alleviate the pain); Tr. 779 (stating, on May 8, 2018,

that Plaintiff’s surgical incisions were well healed with no evidence of

erythema or drainage, and that he had full sensation); Tr. 769 (stating, on

July 5, 2018, examination of right lower extremity reveals no pain with hip or

knee range of motion and that surgical incisions of his ankle were completely

healed); Tr. 765 (stating, on August 16, 2018, that Plaintiff’s right ankle was

healing well and that he was encouraged to continue weightbearing as

tolerated and progress to regular shoes or work boots as needed); Tr. 263

(writing in his March 26, 2019 Supplemental Pain Questionnaire that his

condition does not affect sitting); Tr 265 (writing in his June 19, 2019

Supplemental Pain Questionnaire that sitting is not painful); Tr. 276

(Plaintiff writing, on June 19, 2019, that swimming, physical therapy, and

stretching helped to alleviate some of his pain for a few hours); Tr. 896

(advising, on November 25, 2019, that Plaintiff may develop arthritis in his

right ankle but he could proceed with normal activity as long as he was doing

well); Tr. 895 (noting, as of November 25, 2019, the only medications Plaintiff

was taking were aspirin and fish oil); Tr. 54 (stating during the July 21, 2020

hearing that his life “basically consists of going to the gym, doing a few

errands, [and] maybe going to the pool.”).)

Other than the assertion that Plaintiff’s treatment was not

conservative (Doc. 29 at 11), he has not demonstrated that the ALJ’s decision

was not supported by substantial evidence. It is undisputed that Plaintiff

underwent multiple life-altering surgeries, but this fact alone does not negate

the substantial evidence in the record. While Plaintiff does have some

limitations in maneuvering throughout his day, the ALJ found, and Plaintiff

himself admitted, that his limitations do not affect sitting, and that certain

exercises helped to alleviate his pain for a few hours at a time. The ALJ

credited Plaintiff’s testimony regarding his inability to stand for extended

periods of time and adjusted his RFC accordingly. (See Tr. 19 (ALJ

disagreeing with state agency medical consultant’s opinion that Plaintiff

could perform work at the light exertional level, and, in light of Plaintiff’s

pain allegations, reducing his RFC to sedentary); Tr. 21 (ALJ stating that

“[Plaintiff’s] ability to perform all or substantially all of the requirements of

[the full range of sedentary work] has been impeded by additional

limitations.).)

Moreover, the effectiveness of Plaintiff’s treatment, as outlined above,

is evident. Records from various orthopedic visits show significant

improvement in Plaintiff’s post-operative ankle symptoms, as he went from

ambulating with assistive devices to independently ambulating with the use

of padding and the doctor encouraging him to wear regular shoes or work

boots. In light of these considerations, the Court finds that ALJ’s decision

was supported by substantial evidence, and he employed the proper legal

standards.

2. Plaintiff’s Challenge to the ALJ’s Lawful Authority

and Actions

Plaintiff argues that his case should be remanded because the removal

provision application to the Commissioner, 42 U.S.C. § 902(a)(3), is

constitutionally invalid under Seila Law LLC v. Consumer Fin. Prot. Bureau,

140 S. Ct. 2183 (2020). (Doc. 29 at 12-17.) For her part, the Commissioner

“agree[s] that the relevant removal provision violates the separation of

powers to the extent it is construed as limiting the President’s authority to

remove the Commissioner without cause.” (Doc. 32 at 4 (internal citations

omitted.).) However, citing a subsequent Supreme Court ruling—Collins v.

Yellen, 141 S. Ct. 1761 (2021)—the Commissioner contends that Plaintiff is

not entitled to a remand because he cannot show that the unconstitutional

removal restriction actually caused him harm. (Id.)

In Seila Law, the Supreme Court held that the Consumer Financial

Protection Bureau’s (“CFPB”) “leadership by a single individual removable

only for inefficiency, neglect, or malfeasance violate[d]” the constitutional

separation of powers doctrine. 140 S. Ct. at 2197. In Collins, the Supreme

Court considered whether the “for cause” removal provision applicable to the

head of the Federal Housing Finance Agency (“FHFA”) was constitutional.

141 S. Ct. at 1770. Like Sheila Law, the Supreme Court in Collins held that

the removal provision violated constitutional separation of powers principles

and was therefore unconstitutional. Id. at 1787. The Supreme Court did not

resolve whether the party challenging the removal provision was entitled to

relief, but observed that:

Although an unconstitutional provision is never really part of the

body of governing law (because the Constitution automatically

displaces any conflicting statutory provision from the moment of

the provision's enactment), it is still possible for an

unconstitutional provision to inflict compensable harm. And the

possibility that the unconstitutional restriction on the President's

power to remove a Director of the FHFA could have such an effect

cannot be ruled out. Suppose, for example, that the President had

attempted to remove a Director but was prevented from doing so

by a lower court decision holding that he did not have “cause” for

removal. Or suppose that the President had made a public

statement expressing displeasure with actions taken by a

Director and had asserted that he would remove the Director if

the statute did not stand in the way. In those situations, the

statutory provision would clearly cause harm.

Id. at 1788-89.

In a concurring opinion, Justice Kagan offered a particularly relevant

observation:

[T]he majority's approach should help protect agency decisions

that would never have risen to the President's notice. Consider

the hundreds of thousands of decisions that the Social Security

Administration (SSA) makes each year. The SSA has a single

head with for-cause removal protection; so a betting person might

wager that the agency's removal provision is next on the

chopping block. . .but given the majority's remedial analysis, I

doubt the mass of SSA decisions—which would not concern the

President at all—would need to be undone. . .When an agency

decision would not capture a President's attention, his removal

authority could not make a difference—and so no injunction

should issue.

Id. at 1802 (Kagan, J., concurring in part).

To no surprise, the Commissioner—undoubtedly driven by the need to

avoid an institutional quagmire caused by the potential reversal of countless

SSA decisions—has listed 29 district court decisions apparently agreeing

with Justice Kagan’s assessment. (See Doc. 32 at 11 n.2.) As the Eleventh

Circuit has not yet ruled on this precise constitutional challenge, the Court

looks to decisions in this District for guidance.

In Herring v. Comm’r of Soc. Sec., the court ruled that the removal

provision does not necessitate remand or a rehearing of the plaintiff’s claim

because (1) the removal provision is severable from the remainder of the

Social Security Act, and (2) the plaintiff failed to show how the

unconstitutional removal provision harmed him. Herring v. Comm’r of Soc.

Sec., Defendant., No. 2:21-CV-322-MRM, 2022 WL 2128801, at *6 (M.D. Fla.

June 14, 2022); Perez-Kocher v. Comm’r of Soc. Sec., No. 6:20-cv-2357-GKS-

EJK, 2021 WL 6334838, at *4 (M.D. Fla. Nov. 23, 2021) (finding that a

plaintiff had failed to state a claim upon which relief could be granted

because the plaintiff could not establish that the Acting Commissioner’s

unconstitutional tenure protection caused compensable harm).

Here, like the plaintiff in Herring, Mr. Reyno has failed to show the

removal provision harmed him. The Court is left guessing which, if any, of

the former Commissioner’s actions and/or inactions are traced to the ALJ’s

decision to deny Plaintiff disability benefits. For example, Plaintiff has not

shown that the President was unable to remove Mr. Saul as a result of the

alleged unconstitutional tenure, undermining the existence of the nexus

between the provision and the unfavorable decision. Additionally, Plaintiff

“fails to show that absent the alleged unconstitutional provision, [Plaintiff's]

claim would have been decided differently at either the ALJ or the Appeals

Council level.” Herring, at *5. Instead, Mr. Reyno simply relies on President

Biden’s statement made during the former Commissioner’s termination.9

The Court is not at liberty to consider accusations made by the President the

regarding the former Commissioner’s actions in determining whether

Plaintiff is entitled to a new hearing before a different ALJ.

Additionally, Plaintiff attempts to distinguish the plaintiffs in Collins

9 Plaintiff quotes from President Biden’s declaration in relevant part: “[s]ince

taking office, Commissioner Saul has undermined and politicized Social Security

disability benefits, . . . reduced due process protections for benefits appeals

hearings, and taken other actions that run contrary to the mission of the agency

and the President’s policy agenda.” (Doc. 29 at 16.)

from this case because, as Plaintiff argues, “[this case] does in fact involve

government actors exercising power which those government actors did not

lawfully possess.” (Doc. 29 at 15.) But that argument is flawed. At the time

of this decision, the ALJ was properly appointed because “on July 16, 2018,

the Acting Commissioner of Social Security ratified the appointments of [the

Social Security Administration’s] ALJs and approved those appointments as

her own.” See 84 Fed. Reg. 9583 (2019.). Lastly, in a single sentence citing to

Lucia v. S.E.C., 138 S. Ct. 2044 (2018), Plaintiff suggests that he is entitled

to a “de novo hearing before a new ALJ who does not suffer from the

unconstitutional taint of having previously heard and decided this case when

the ALJ had no lawful authority to do so.” (Doc. 29 at 17.) Plaintiff

improperly conflates the Supreme Court’s ruling in Lucia with the decisions

in Collins and Seila Law. The Court in Lucia “held that the appropriate

remedy for an adjudication tainted with an appointments violation is a new

hearing before a properly appointed official.” Lucia, 138 S. Ct. at 2055.

However, neither Seila Law, Collins, or the case at hand involved issues with

the manner of appointment of the Commissioner or the ALJ that denied

Plaintiff’s claim. See Vergara v. Kijakazi, No. 20-22964-CIV, 2022 WL

769704, at *8 (S.D. Fla. Feb. 23, 2022), report and recommendation adopted

sub nom. Vergara v. Comm'r of Soc. Sec., No. 20-22964-CIV, 2022 WL 767125

(S.D. Fla. Mar. 14, 2022), citing Collins, 141 S. Ct. at 1788 (explaining that

“[a]ll the officers who headed the FHFA during the time in question were

properly appointed[,]” whereas Lucia “involved a Government actor's exercise

of power that the actor did not lawfully possess).

Thus, because “[t]he Plaintiff failed to demonstrate that the removal

provision had any actual or possible impact on the unfavorable decision he

received,” Plaintiff is not entitled to a new hearing on this issue. Tucker v.

Kijakazi, No. 21-60943-CIV, 2022 WL 750559, at *13 (S.D. Fla. Feb. 8,

2022), report and recommendation adopted, No. 21-60943, 2022 WL 742744

(S.D. Fla. Mar. 11, 2022); see Tibbets v. Comm’r of Soc. Sec., Case No. 2:20-

CV-872-SPC-MRM, 2021 WL 6297530, at *6 (M.D. Fla. Dec. 21, 2021)

(concluding that the removal provision does not necessitate remand or a

rehearing of the plaintiff’s claim).)

III. Conclusion

The Court does not make independent factual determinations, re-weigh

the evidence, or substitute its decision for that of the ALJ. Thus, the

question is not whether the Court would have arrived at the same decision on

de novo review; rather, the Court’s review is limited to determining whether

the ALJ’s findings are based on correct legal standards and supported by

substantial evidence. Based on this standard of review, the Court concludes

that the ALJ’s decision that Plaintiff was not disabled within the meaning of

the Social Security Act for the time period in question is due to be affirmed.

Accordingly, itis ORDERED:

1. The Commissioner’s Decision is AFFRIMED.

2. The Clerk of Court is directed to enter judgment consistent with this

Order, terminate any pending motions, and close the file.

DONE AND ORDERED at Jacksonville, Florida, on July 11, 2022.

: MONTE C. RICHARDSON

UNITED STATES MAGISTRATE JUDGE

Copies to:

Counsel of Record

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