The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
SHARON MARIE FERNANDES,
Plaintiff,
v. Case No: 6:21-cv-1829-DAB
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
MEMORANDUM OF DECISION
Sharon Fernandes (“Claimant”) appeals from a final decision of the
Commissioner of Social Security (the “Commissioner”) denying her application
for disability and disability insurance benefits protectively filed on December 19,
2019, and alleging a disability onset date of July 15, 2019. Doc. No. 1; R. 18.
Claimant argues that the Administrative Law Judge (“ALJ”) insufficiently
considered her credibility and subjective complaints. Doc. No. 22 at 10-15. Because
Claimant did not demonstrate reversible error by the ALJ, the final decision of the
Commissioner is AFFIRMED.
I. STANDARD OF REVIEW.
The Commissioner’s findings of fact are conclusive if supported by
substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is more than a
scintilla–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. Biestek v. Berryhill, 139 S. Ct.
1148, 1154 (2019) (“Under the substantial-evidence standard, a court looks to an
existing administrative record and asks whether it contains ‘sufficien[t] evidence’
to support the agency’s factual determinations.” (alteration in original)); Foote v.
Chater, 67 F.3d 1553, 1560 (11th Cir. 1995) (per curiam) (citing Walden v. Schweiker,
672 F.2d 835, 838 (11th Cir. 1982); Richardson v. Perales, 402 U.S. 389, 401 (1971)).
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)
(per curiam). The Court must view the evidence as a whole, considering evidence
that is favorable as well as unfavorable to the decision. Foote, 67 F.3d at 1560. The
District Court “may not decide the facts anew, reweigh the evidence, or substitute
[its] judgment for that of the [Commissioner].” Bloodsworth v. Heckler, 703 F.2d
1233, 1239 (11th Cir. 1983).
II. ANALYSIS.
On January 13, 2021, an ALJ held a telephonic hearing where Claimant and
a vocational expert (“VE”) testified. R. 37-77. On February 22, 2021, the ALJ found
that Claimant had the following severe impairments: (1) lumbar spine
degenerative disc disease status post laminectomy at L4 with fusion at L4-5
bilaterally; (2) disc herniations at C3-4, C5-6, and C6-7 with annular fissure;
(3) right hip arthrosis; and (4) partial avulsion fracture of the right hamstring
tendon. R. 20. Despite these impairments, the ALJ found that Claimant had the
residual functional capacity (“RFC”)
to lift and carry up to 10 pounds occasionally and less than 10
pounds frequently, can stand and/or walk for 6 hours of an
8-hour workday, and can sit for 6 hours of an 8-hour
workday. The claimant can occasionally climb ramps and
stairs, never climb ladders, ropes, or scaffolds, occasionally
stoop, kneel, crouch, and crawl, and frequently balance on
level surfaces and occasionally balance on uneven surfaces.
The claimant can tolerate occasional exposure to extreme cold
and humidity and should have no exposure to hazards.
R. 23. Claimant was born in 1968 and 50 years old on the alleged disability onset
date. R. 27.
Relying on the VE’s testimony, the ALJ found that, although Claimant could
not perform her past relevant work as an emergency medical technician and
medical assistant, she could perform other work in the national economy, such as
a hospital admitting clerk. R. 27-28. After considering all of the evidence, the ALJ
found that Claimant was not disabled from July 15, 2019, through February 22,
2021, the date of the ALJ’s decision. R. 28.
In so finding, the ALJ reviewed Claimant’s allegations in her decision:
In her initial disability report, the claimant alleged she
is unable to work due to a back fusion nerve damage,
laminectomy, anemia, avulsion tendon, sciatic nerve pain,
sleep apnea, depression, ADHD, and asthma. The claimant
later alleged her pain was worse after her surgery; walking,
sitting, and laying [sic] down cause severe pain to the lower
back and left leg; she is unable to lift more than 15 to 20
pounds; she has numbness in her bilateral thumbs; and her
mental capacity has declined. At the hearing, the claimant
testified she lives with her boyfriend, and she drives a few
times a month. The claimant testified she has an active
nursing license. The claimant testified she stopped working
when her back surgery was initially scheduled and she was
unable to return to work after four months, so they asked her
to resign. The claimant testified she had trouble with balance,
she drops things, she has weakness, and she has no strength
in her hand. She testified she can stand less than ½ hour, she
cannot sit back against anything, she can lift 10 to 15 pounds,
and she has limited range of motion in her neck.
R. at 24 (citations omitted) (citing R. 228-36, 269-77); see R. 45-62.
The ALJ found that “[t]he claimant’s allegations of additional limitations are
not consistent with the record.” R. 25-26. “First, the record reflects the claimant’s
condition and functioning improved with physical therapy after her surgery.” R.
26 (citing R. 351-63). “On January 9, 2020, the claimant had no focal deficits, normal
sensation in her extremities, and a normal gait.” R. 26 (citing R. 364-408).
“Moreover, the claimant relies on over-the-counter pain medication with an
occasional muscle relaxer to treat her symptoms.” R. 26 (citing R. 529-35). “Finally,
the undersigned acknowledges the claimant has been unable to work in her former
occupations, but the claimant’s daily activities, to wit: drive, cook, do crafts, and
live alone, suggest she is capable of performing within the above residual
functional capacity.” R. 26 (citing R. 242-48, 425-28). The ALJ found that Claimant’s
“medically determinable impairments could reasonably be expected to cause some
of 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.” R. 24.
Claimant argues that “[t]he ALJ’s reasons for rejecting [her] testimony
regarding her pain and limitations are not based on the correct legal standards or
supported by substantial evidence.” Doc. No. 22 at 12. In response, the
Commissioner contends that the ALJ properly evaluated Claimant’s subjective
complaints under the regulations and Eleventh Circuit case law. Id. at 15-19.
In the Eleventh Circuit, subjective complaints of pain are governed by a
three-part “pain standard” that applies when a claimant attempts to establish
disability through subjective symptoms. By this standard, there must be
(1) evidence of an underlying medical condition and either (2) objective medical
evidence that confirms the severity of the alleged symptom arising from the
condition or (3) evidence that the objectively determined medical condition is of
such severity that it can reasonably be expected to give rise to the alleged pain.
Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991) (per curiam) (citing Landry v.
Heckler, 782 F.2d 1551, 1553 (11th Cir. 1986) (per curiam)). The ALJ must consider
“all of the record, including the objective medical evidence, the claimant’s history,
and statements of the claimant and her doctors.” Costigan v. Comm’r, Soc. Sec.
Admin., 603 F. App’x 783, 786 (11th Cir. 2015) (per curiam) (citing 20 C.F.R.
§ 404.1529(c)(1)-(2)). “After considering a claimant’s complaints of pain, the ALJ
may reject them as not creditable, and that determination will be reviewed for
substantial evidence.” Marbury v. Sullivan, 957 F.2d 837, 839 (11th Cir. 1992) (per
curiam) (citing Wilson v. Heckler, 734 F.2d 513, 517 (11th Cir. 1984) (per curiam)). If
an ALJ discredits the subjective testimony of a claimant, then he must “articulate
explicit and adequate reasons for doing so. Failure to articulate the reasons for
discrediting subjective testimony requires, as a matter of law, that the testimony
be accepted as true.” Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002) (per
curiam) (citation omitted). The Court “will not disturb a clearly articulated
credibility finding supported by substantial evidence.” Mitchell v. Comm’r, Soc. Sec.
Admin., 771 F.3d 780, 782 (11th Cir. 2014) (citing Foote, 67 F.3d at 1562).
In evaluating a claimant’s testimony, the ALJ should consider: (1) the
claimant’s daily activities; (2) the duration, frequency, and intensity of the
claimant’s symptoms; (3) precipitating and aggravating factors; (4) the
effectiveness and side effects of any medications; and (5) treatment or other
measures taken by the claimant to alleviate symptoms. Sarli v. Berryhill, 817 F.
App’x 916, 918 (11th Cir. 2020) (per curiam) (citing 20 C.F.R. §§ 404.1529(c)(3),
416.929(c)(3)). “The ALJ is to consider these factors in light of the other evidence
in the record.” Id. (citing §§ 404.1529(c)(4), 416.929(c)(4)). “The claimant’s
subjective testimony supported by medical evidence that satisfies the standard is
itself sufficient to support a finding of disability.” Holt, 921 F.2d at 1223.
“Effective March 28, 2016, SSR 16-3p rescinded a previous SSR on credibility
of a claimant.” Amburgey v. Acting Comm’r of Soc. Sec., No. 3:20-cv-627-PDB, 2022
WL 950643, at *5 (M.D. Fla. Mar. 30, 2022) (citing SSR 16-3p, 2017 WL 5180304 (Oct.
25, 2017) (republished)). “The SSR removed ‘credibility’ from policy because the
regulations do not use that term.” Id. (citing SSR 16-3p, 2017 WL 5180304, at *2).
“The SSR clarified that ‘subjective symptom evaluation is not an examination of
an individual’s character.’” Id. (quoting same). “Instead of assessing credibility, an
ALJ must consider ‘the extent to which the symptoms can reasonably be accepted
as consistent with the objective medical and other evidence in the individual’s
record.’” Id. (quoting same).
Claimant contends that “[t]he ALJ’s finding that [her] ‘condition and
functioning improved with physical therapy after her surgery’ is belied by the
medical evidence of record. Doc. No. 22 at 13; see R. 26. “The ALJ’s finding ignores
significant medical evidence that reveals [Claimant’s] condition in fact worsened
after her surgery.” Doc. No. 22 at 12. Although Claimant “cites portions of the
record favorable to [her] argument,” the Court’s “standard of review does not
allow [it] to reweigh evidence in the manner [Claimant] would like.” Raymond v.
Soc. Sec. Admin., Comm’r, 778 F. App’x 766, 778 (11th Cir. 2019) (per curiam). The
Court’s “inquiry is whether the ALJ pointed to sufficient relevant evidence such
that a reasonable person would accept the ALJ adequately supported her
conclusion.” Id. (citing Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997)).
“Here, even if a reasonable person might find [Claimant] has marshaled enough
evidence to support [her] position, a reasonable person—maybe even the same
reasonable person—could still find the ALJ adequately supported her conclusion.”
Id. The ALJ thus did not commit reversible error. See id.
Claimant next argues that the ALJ’s additional reason for rejecting her
testimony (that she “relies on over-the-counter pain medication with an occasional
muscle relaxer to treat her symptoms”) is not based on the correct legal standards
or supported by substantial evidence. She contends that the ALJ did not consider
“possible reasons [she] may not comply with treatment or seek treatment
consistent with the degree of [her] complaints” and so the ALJ failed to comply
with SSR 16-3p. Doc. No. 22 at 13 (quoting SSR 16-3p, 2017 WL 5180304, at *9)).
First, Claimant maintains that the ALJ did not consider her testimony that
“she did not like taking prescription pain medication due to the way it made her
feel but would take Neurontin once in a while when her pain got bad.” Id. (citing
R. 59-60). However, “the ALJ addressed the matter of medication side effects
specifically with [Claimant] at the hearing” (R. 59-60) and “stated in her decision
that she considered all of [Claimant’s] symptoms and the extent to which those
symptoms could reasonably be accepted as consistent with the objective medical
evidence and other portions of the record.” Morrison v. Kijakazi, No. 8:20-cv-1827-
CPT, 2022 WL 970201, at *7 (M.D. Fla. Mar. 31, 2022); see R. 23 (citing 20 C.F.R.
§ 404.1529; SSR 16-3p)). “These findings are sufficient to show that the ALJ
properly evaluated [Claimant’s] medication side effects.” Morrison, 2022 WL
970201, at *7 (citing Robinson v. Comm’r of Soc. Sec., 649 F. App’x 799, 802 (11th Cir.
2016) (per curiam)).
Second, Claimant argues that the ALJ failed to consider that she did not have
health insurance and that “poverty excuses noncompliance.” Doc. No. 22 at 14
(quoting Dawkins v. Bowen, 848 F.2d 1211, 1213 (11th Cir. 1988)). “The Eleventh
Circuit has held that ‘refusal to follow prescribed medical treatment without a
good reason will preclude a finding of disability, but poverty excuses
noncompliance.’” Aldoph v. Comm’r of Soc. Sec., No. 2:17-cv-425-FtM-MRM, 2018
WL 3853962, at *8 (M.D. Fla. Aug. 14, 2018) (quoting Ellison v. Barnhart, 355 F.3d
1272, 1275 (11th Cir. 2003) (per curiam)). “If a plaintiff fails to comply with
prescribed treatment, then the ability to afford medication is a factor that should
be considered in the administrative process.” Id.; see SSR 16-3p, 2017 WL 5180304,
at *9-10. When “an ALJ relies on noncompliance with prescribed medical
treatment as the ‘sole ground for the denial of disability benefits,’ and the record
contains evidence that a plaintiff was unable to afford the prescribed medical
treatment, then the ALJ must determine whether a plaintiff could afford the
prescribed medical treatment.” Aldoph, 2018 WL 3853962, at *8 (quoting Ellison, 355
F.3d at 1275). “If a court determines that the failure to follow prescribed medical
treatment is not one of the ‘principal factors in the ALJ’s decision,’ then the ALJ is
not required to delve into a plaintiff’s ability to pay, and this failure is not
reversible error.” Id. (quoting Brown v. Comm’r of Soc. Sec., 425 F. App’x 813, 817
(11th Cir. 2011) (per curiam)). “If the failure to follow prescribed medical treatment
is a substantial factor in an administrative law judge’s decision to discredit a
plaintiff’s credibility, then the ALJ should inquire further as to whether a plaintiff
was able to afford the prescribed medical treatment before holding noncompliance
against a plaintiff.” Id. (citing Moffatt v. Comm’r of Soc. Sec., No. 8:13-cv-2853-T-
36EAJ, 2015 WL 1038014, at *4 (M.D. Fla. Mar. 10, 2015)).
Here, “unlike in Dawkins, the ALJ’s determination that [Claimant] was not
disabled was not significantly based on a finding of noncompliance.” Ellison, 355
F.3d at 1275; see Aldoph, 2018 WL 3853962, at *8. Rather, the ALJ focused on the
medical evidence of record, Claimant’s daily living activities, and the prior
administrative medical findings of the state agency medical consultants (R. 24-27).
See Aldoph, 2018 WL 3853962, at *9. “Moreover, as the ALJ expressly stated, [she]
based [her] finding of ‘not disabled’ on testimony of a VE and [Claimant’s] RFC,
age, educational background, and work experience” (R. 27-28). Ellison, 355 F.3d at
1275. “Accordingly, [Claimant’s] reliance on Dawkins is misplaced, and the ALJ’s
failure to consider [Claimant’s] ability to afford [treatment] does not constitute
reversible error.” Id. (citing Dawkins, 848 F.2d at 1212-14).
Claimant finally argues to no avail that the ALJ erred in relying on her daily
living activities to discount her subjective allegations (Doc. No. 22 at 14-15). See
Lynn v. Comm’r of Soc. Sec., 791 F. App’x 888, 889 (11th Cir. 2020) (per curiam)
(determining that substantial evidence supported ALJ’s finding that claimant’s
subjective complaints were inconsistent with objective medical evidence and other
aspects of claimant’s testimony, including her activities of operating a motor
vehicle, preparing meals, performing household chores, doing laundry, and
grooming herself); Moore v. Barnhart, 405 F.3d 1208. 1212 (11th Cir. 2005) (per
curiam) (upholding ALJ’s credibility determination, which relied on
inconsistencies between claimant’s “descriptions of her diverse daily activities and
her claims of infirmity”). And Claimant does not argue that the ALJ failed to
consider the extent to which she could perform her activities of daily living. Cf.
Parker v. Bowen, 793 F.2d 1177, 1180 (11th Cir. 1986) (per curiam).
Substantial evidence supports the ALJ’s finding that Claimant’s “statements
concerning the intensity, persistence and limiting effects of [her] symptoms are not
entirely consistent with the medical evidence and other evidence in the record.”
R. 24.
Again, even if the Court finds that the evidence preponderates against the
Commissioner’s decision, the Court must affirm if the decision is supported by
substantial evidence. See MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986).
Because substantial evidence supports the decision of the ALJ, who applied the
correct legal standards in this case, the Court affirms the Commissioner’s final
decision.
III. CONCLUSION.
From the record, it is apparent that Claimant suffers from various conditions
that negatively affect her enjoyment of life and, to some degree, her daily activities.
The presence of Claimant’s adverse circumstances, however, is not the issue before
the Court. Rather, the issue is whether, under the standards applicable to review
of ALJ decisions applying the provisions of the social security statutes and
regulations, there has been reversible error.
For the reasons stated above, it is ORDERED that:
1. The final decision of the Commissioner is AFFIRMED; and
2. The Clerk is directed to enter judgment for the Commissioner and
close the case.
DONE and ORDERED in Orlando, Florida, on July 28, 2022.
DAVID A. BAKER
UNITED STATES MAGISTRATE JUDGE
Copies furnished to:
Richard A. Culbertson, Esq.
Suite E
3200 Corrine Drive
Orlando, FL 32803
Roger B. Handberg
United States Attorney
John F. Rudy, III
Assistant United States Attorney
400 N. Tampa St.
Suite 3200
Tampa, FL 33602
John C. Stoner, Acting Regional Chief Counsel
Megan Gideon, Branch Chief
Jennifer L. Patel, Assistant Regional Counsel
Nadine Elder
Social Security Administration
Office of the General Counsel, Region IV
Atlanta Federal Center
61 Forsyth Street, S.W., Suite 20T45
Atlanta, GA 30303
The Honorable Sylvia H. Alonso
Administrative Law Judge
Office of Hearings Operations
Suite 1000, 10th Floor
500 East Broward Blvd.
Ft. Lauderdale, FL 33394-9978