Opinion

Fernandes v. Commissioner of Social Security

Court
District Court, M.D. Florida
Filed
Jul 28, 2022
Cited by
0 cases
Authority
More cited than 19.9%

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

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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