The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
JAMIE RENEE JOHNSON,
Plaintiff,
v. Case No.: 8:21-cv-164-DNF
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
OPINION AND ORDER
Plaintiff Janie Renee Johnson seeks judicial review of the final decision of the
Commissioner of the Social Security Administration (“SSA”) denying her claim for
a period of disability and disability insurance benefits and for supplemental security
income benefits. The Commissioner filed the Transcript of the proceedings (“Tr.”
followed by the appropriate page number), and the parties filed a joint legal
memorandum setting forth their respective positions. As explained below, the
decision of the Commissioner is AFFIRMED under § 205(g) of the Social Security
Act, 42 U.S.C. § 405(g).
I. Social Security Act Eligibility, Standard of Review, Procedural
History, and the ALJ’s Decision
A. Social Security Eligibility
The law defines disability as the inability to do 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. §§ 416(i), 423(d)(1)(A),
1382c(a)(3)(A); 20 C.F.R. §§ 404.1505(a), 416.905(a). The impairment must be
severe, making the claimant unable to do her previous work, or any other substantial
gainful activity which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A),
1382c(a)(3)(A); 20 C.F.R. §§ 404.1505–404.1511, 416.905–416.911.
B. 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 and is such relevant evidence as a reasonable person would accept as
adequate to support a conclusion. Even if the evidence preponderated against the
Commissioner’s findings, we must affirm if the decision reached is supported by
substantial evidence.” Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th
Cir. 2004). In conducting this review, this Court may not reweigh the evidence or
substitute its judgment for that of the ALJ, but must consider the evidence as a whole,
taking into account evidence favorable as well as unfavorable to the decision.
Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (citation
omitted); Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995); Martin v. Sullivan,
894 F.2d 1520, 1529 (11th Cir. 1990). Unlike findings of fact, the Commissioner’s
conclusions of law are not presumed valid and are reviewed under a de novo
standard. Keeton v. Dep’t of Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir.
1994); Maldonado v. Comm’r of Soc. Sec., No. 20-14331, 2021 WL 2838362, at *2
(11th Cir. July 8, 2021); Martin, 894 F.2d at 1529. “The [Commissioner’s] failure
to apply the correct law or to provide the reviewing court with sufficient reasoning
for determining that the proper legal analysis has been conducted mandates
reversal.” Keeton, 21 F.3d at 1066.
The ALJ must follow five steps in evaluating a claim of disability. 20 C.F.R.
§§ 404.1520, 416.920. At the first step, the ALJ must determine whether the claimant
is currently engaged in substantial gainful employment. 20 C.F.R.
§ 404.1520(a)(4)(i), (b); 20 C.F.R. § 416.920(a)(4)(i), (b). At step two, the ALJ must
determine whether the impairment or combination of impairments from which the
claimant allegedly suffers is “severe.” 20 C.F.R. § 404.1520(a)(4)(ii), (c); 20 C.F.R.
§ 416.920(a)(4)(ii), (c). At step three, the ALJ must decide whether the claimant’s
severe impairments meet or medically equal a listed impairment. 20 C.F.R.
§ 404.1520(a)(4)(iii), (d); 20 C.F.R. § 416.920(a)(4)(iii), (d). If the ALJ finds the
claimant’s severe impairments do not meet or medically equal a listed impairment,
then the ALJ must determine whether the claimant has the residual functional
capacity (“RFC”) to perform her past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv),
(e)–(f); 20 C.F.R. § 416.920(a)(4)(iv), (e)–(f).
If the claimant cannot perform her past relevant work, the ALJ must determine
at step five whether the claimant’s RFC permits her to perform other work that exists
in the national economy. 20 C.F.R. § 404.1520(a)(4)(v), (g); 20 C.F.R.
§ 416.920(a)(4)(v), (g). At the fifth step, there are two ways in which the ALJ may
establish whether the claimant is capable of performing other work available in the
national economy. The first is by applying the Medical Vocational Guidelines, and
the second is by the use of a vocational expert. Phillips v. Barnhart, 357 F.3d 1232,
1239-40 (11th Cir. 2004); Atha v. Comm’r, Soc. Sec. Admin., 616 F. App’x 931, 933
(11th Cir. 2015).
The claimant bears the burden of proof through step four. Atha, 616 F. App’x
at 933. If the claimant meets this burden, then the burden temporarily shifts to the
Commissioner to establish the fifth step. Id.; 20 C.F.R. § 404.1520(a)(4)(v), (g); 20
C.F.R. § 416.920(a)(4)(v), (g). If the Commissioner presents evidence of other work
that exists in significant numbers in the national economy that the claimant is able
to perform, only then does the burden shift back to the claimant to prove she is unable
to perform these jobs. Atha, 616 F. App’x at 993.
C. Procedural History
Plaintiff filed an application for a period of disability and disability insurance
benefits, and for supplemental security income benefits on December 28, 2017,
alleging disability beginning August 30, 2016. (Tr. 107, 123, 287-299). The
applications were denied initially and on reconsideration. (Tr. 107, 123, 141, 157).
Plaintiff requested a hearing, and on July 31, 2020, a hearing was held before
Administrative Law Judge Alisa Tapia. (Tr. 40-106). On August 13, 2020, the ALJ
entered a decision finding Plaintiff not under a disability from August 30, 2016,
through the date of the decision. (Tr. 32-33).
Plaintiff requested review of the decision, but the Appeals Council denied
Plaintiff’s request on November 18, 2020. (Tr. 1-5). Plaintiff initiated the instant
action by Complaint (Doc. 1) filed on January 22, 2021, and the case is ripe for
review. The parties consented to proceed before a United States Magistrate Judge
for all proceedings. (Doc. 18).
D. Summary of ALJ’s Decision
In this matter, the ALJ found Plaintiff met the insured status requirements of
the Social Security Act through December 31, 2019. (Tr. 17). At step one of the
sequential evaluation, the ALJ found that Plaintiff had not engaged in substantial
gainful activity since August 30, 2016, the alleged onset date. (Tr. 17). At step two,
the ALJ found that Plaintiff had the following severe impairments: “degenerative
disc disease and headaches.” (Tr. 17-18). At step three, the ALJ found that Plaintiff
did not have an impairment or combination of impairments that meets or medically
equals the severity of any of the listed impairments in 20 C.F.R. Part 404, Subpart
P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d),
416.925, and 416.926). (Tr. 20).
Before proceeding to step four, the ALJ found that Plaintiff had the following
RFC:
After careful consideration of the entire record, the
undersigned finds that the claimant has the residual functional
capacity to perform light work as defined in 20 [C.F.R. §§]
404.1567(b) and 416.967(b) except she can never climb
ladders, ropes, or scaffolds. She can occasionally climb ramps
and stairs, balance, stoop, kneel, crouch, and crawl. She can
tolerate no more than moderate level of noise. She should avoid
work outdoors in bright sunshine. She cannot work with bright
or flickering lights such as would be experienced in welding or
cutting metals (fluorescent lights are not considered
flickering). She will have a sit and stand option that allows her
to alternate from sitting to standing after sitting for two hours
such that she could stretch, stand or walk for two minutes. The
sit and stand option will also include the option to reposition.
(Tr. 20).
At step four, the ALJ relied on the vocational expert’s testimony to find
Plaintiff was capable of performing her past relevant work as a receptionist,
marketing sales manager, loan clerk, appointment clerk, and telemarketer. (Tr. 30).
The ALJ found this work did not require the performance of work-related activities
that were precluded by Plaintiff’s RFC. (Tr. 30). Alternatively, at step five the ALJ
considered Plaintiff’s age (53 years old on the alleged disability onset date),
education (at least a high school education), work experience, and RFC, and found
there were jobs that existed in significant numbers in the national economy that
Plaintiff could perform. (Tr. 31-32). The vocational expert testified that Plaintiff’s
past relevant work was all semi-skilled or skilled, and required the following skills:
sales skills, record keeping skills, computer usage skills, keyboarding skills, people
skills, and supervisory skills. (Tr. 31). Specifically, the ALJ found that with the skills
she acquired from her past relevant work, Plaintiff could perform such occupations
as:
(1) shipping order clerk, DOT 219.367-030,1 light, semi-skilled, SVP 4
(2) medical records clerk, DOT 245.362-010, light, semi-skilled, SVP 4
(3) personnel clerk, DOT 209.362-026, light semi-skilled, SVP 4.
(Tr. 32). In addition, the ALJ listed occupations that Plaintiff could perform that are
unskilled:
(1) ticket seller, DOT 211.467-030, light, unskilled, SVP 2
(2) routing clerk, DOT 222.687-022, light, unskilled, SVP 2
(3) router, DOT 222.587-038, light unskilled, SVP 2
(Tr. 32). The ALJ concluded that Plaintiff had not been under a disability from
August 30, 2016, through the date of the decision. (Tr. 32).
1 DOT refers to the Dictionary of Occupational Titles.
II. Analysis
On appeal, Plaintiff raises three issues: (1) whether the ALJ erred in failing to
consider all of Plaintiff’s medically determinable impairments; (2) whether the ALJ
properly evaluated Plaintiff’s symptoms; and (3) whether the ALJ sufficiently
evaluated the medical opinion evidence from Plaintiff’s treating physician. (Doc. 21,
p. 15, 21, 31).
A. Consideration of All Plaintiff’s Medically Determinable
Impairments
Plaintiff claims that she was diagnosed by at least two of her treating
physicians with chronic pain syndrome. (Doc. 21, p. 16). Plaintiff also claims that
she repeatedly reported symptoms consistent with this diagnosis, including pain, loss
of sleep, and fatigue. (Doc. 21, p. 16). Plaintiff argues that the ALJ did not list
chronic pain syndrome as a severe impairment or discuss it at step two of the
sequential evaluation or later when determining Plaintiff’s RFC. (Doc. 21, p. 16).
By failing to consider this impairment, Plaintiff argues that the ALJ committed error.
(Doc. 21, p. 17).
At step two, an ALJ considers the severity of a claimant’s impairments. 20
C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An impairment or combination of
impairments is not severe “if it does not significantly limit [a claimant’s] physical or
mental ability to do basic work activities” 20 C.F.R. §§ 404.1522(a), 416.922(a). In
other words, a severe impairment is an impairment or combination thereof that
significantly limits a claimant’s abilities to perform basic work activities. See SSR
85-28, 1985 WL 56856, *4 n.1; 20 C.F.R. §§ 404.1520(c), 404.1522(a), 416.920(c),
416.922(a).
The severity of an impairment “must be measured in terms of its effect upon
ability to work, and not simply in terms of deviation from purely medical standards
of bodily perfection or normality.” McCruter v. Bowen, 791 F.2d 1544, 1547 (11th
Cir. 1986). The impairment must also last or be expected to last for a continuous
period of at least 12 months. 20 C.F.R. §§ 404.1520(a)(4)(ii), 404.1509,
416.920(a)(4)(ii), 416.909. The claimant bears the burden at step two of proving that
she has a severe impairment or combination of impairments. O’Bier v. Comm’r of
Soc. Sec. Admin., 338 F. App’x 796, 798 (11th Cir. 2009).
This inquiry “acts as a filter in that the finding of any severe impairment ... is
enough to satisfy the requirement of step two and allow the ALJ to proceed to step
three.” Ball v. Comm’r of Soc. Sec. Admin., 714 F. App’x 991, 993 (11th Cir. 2018)
(internal quotations omitted). “Nothing requires that the ALJ must identify, at step
two, all of the impairments that should be considered severe.” Heatly v. Comm’r of
Soc. Sec., 382 F. App’x 823, 825 (11th Cir. 2010). 2 If any impairment or
2 Plaintiff cites a case from the Northern District of Texas for the proposition that failure to
consider a severe impairment at step two and in determining a claimant’s RFC may be grounds for
reversal. (Doc. 21, p. 15, (citing Mahoney v. Astrue, 2009 WL 3097334 (N.D. Tex. Sept. 25,
2009)). This case is not binding on this Court and conflicts in part with persuasive Eleventh Circuit
case law.
combination of impairments qualifies as “severe,” step two is satisfied and the claim
advances to step three. Gray v. Comm’r of Soc. Sec., 550 F. App’x 850, 852 (11th
Cir. 2013) (citing Jamison v. Bowen, 814 F.2d 585, 588 (11th Cir. 1987)). “[B]eyond
the second step, the ALJ must consider the entirety of the claimant’s limitations,
regardless of whether they are individually disabling.” Griffin v. Comm’r of Soc.
Sec., 560 F. App’x 837, 841-842 (11th Cir. 2014) (internal citations omitted).
With this standard in mind, even if the ALJ should have characterized
Plaintiff’s chronic pain syndrome as a severe impairment, any error is harmless
because the ALJ characterized other impairments – degenerative disc disease and
headaches – as severe. (Tr. 13). The ALJ then advanced to step three of the
sequential evaluation. See Ball, 714 F. App’x at 993. With step two satisfied, the
issue then becomes whether the ALJ considered all of Plaintiff’s impairments,
including her chronic pain syndrome, in assessing the RFC.
Plaintiff argues that she repeatedly reported symptoms consistent with a
diagnosis of chronic pain syndrome, including pain, loss of sleep, and fatigue. (Doc.
21, p. 16). In the decision, after determining the RFC, the ALJ stated that she “has
considered all symptoms and the extent to which these symptoms can reasonably be
accepted as consistent with the objective medical evidence and other evidence.” (Tr.
21). And throughout the decision, the ALJ noted when Plaintiff complained of pain,
loss of sleep, and fatigue, (Tr. 21-21-26), including the below references:
• June 2017 – Before Plaintiff stopped working, she had complaints of low
back pain, neck pain, left shoulder pain, left leg pain, right leg pain, left knee
pain, and right knee pain. The pain started 18 years ago. Plaintiff went to the
Florida Spine Institute with moderate to severe pain, and reported her pain
increased with sitting, standing, walking, bending, and twisting. She was
prescribed muscle relaxers and hydrocodone without any side effects. (Tr.
22).
• August 2017 – Plaintiff reported an 80% overall improvement with
medications and overall pain relief of 90 %, with a pain level of 2. (Tr. 23).
• October 2017 – Plaintiff reported 70% pain relief with medication regimen.
(Tr. 23)
• November 2017 – Plaintiff reported chronic pain and unable to sleep. She
also reported an 80% pain relief with medication. (Tr. 21, 23).
• December 2017 – Plaintiff reported her pain was adequately controlled with
current medication. (Tr. 23).
• January 2018, Plaintiff reported 80% pain relief with current medications.
(Tr. 23).
• February 2018 – Plaintiff reported pain every day, all day, and needing to
stay in bed all day, and her condition affected her lifting squatting, bending,
standing, reaching, walking, sitting, kneeling, stair climbing, completing
tasks, concentration, and using hands. Plaintiff also reported pain was
maintained at 80% pain relief with current medications. (Tr. 21, 23).
• July 2018 – Plaintiff reported her pain level as an 8, and complained of
localized bilateral shoulder pain, low back pain, right hand pain, and rib cage
pain. (Tr. 24).
• November 2018 – Plaintiff reported she experienced constant back pain and
headaches and she could not squat, bend, reach, or kneel. (Tr. 21).
• December 2018 – Plaintiff’s son described Plaintiff’s pain as extreme, and
she had anxiety and sadness. He also indicated that her conditions affected
lifting, squatting, bending, standing reaching walking, sitting, kneeling,
talking, stair climbing, completing tasks, and concentration. (Tr. 21).
• January through December 2019 – Plaintiff reported back pain levels of 7 to
9. Plaintiff complained of poor sleep. (Tr. 24).
• July 31, 2020 – Plaintiff testified at the hearing that she cannot work due to
her back and neck pain that radiates to her extremities, and she cannot sit or
walk very well. She has difficulty getting out of bed in the morning and may
stay in bed until 1:00 p.m. She has different types of headaches most days.
She reported she does not sleep much at night due to insomnia, is able to
make coffee, prepare simple meals, watch television, read, look at Facebook,
walk her dog with her husband, and uses a cane. (Tr. 21-22).
While the ALJ may not have mentioned a diagnosis of chronic pain syndrome,
she thoroughly considered Plaintiff’s reported symptoms and alleged limitations
from her subjective complaints of pain, inability to sleep, and fatigue in determining
Plaintiff’s RFC. Based on Plaintiff’s stable pain management treatment as well as
some other factors, the ALJ formed an RFC that accommodated Plaintiff’s spinal
impairment with exertional and postural limitations, and accommodated her
headaches with environmental limitations. (Tr. 29-30). Thus, even if the ALJ erred
in failing to mention Plaintiff’s chronic pain syndrome, any error is harmless because
the ALJ considered all of Plaintiff’s impairments, both severe and non-severe and
her subjective complaints when determining the RFC. Substantial evidence supports
the ALJ’s findings.
B. Subjective Complaints
Without specifying which factors, Plaintiff argues that the ALJ failed to
examine some factors in the regulations when assessing Plaintiff’s subjective
complaints. (Doc. 21, p. 23). Plaintiff also argues that the ALJ erred in summarizing
the objective medical evidence, the opinion evidence, and then concluding that such
evidence did not establish Plaintiff’s impairments were of a disabling nature. (Doc.
21, p. 23-24).
A claimant may establish that she is disabled through her own testimony of
pain or other subjective symptoms. Ross v. Comm’r of Soc. Sec., 794 F. App’x 858,
867 (11th Cir. 2019) (citing Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005)).
In such a case, a claimant must establish:
“(1) evidence of an underlying medical condition and either (2)
objective medical evidence that confirms the severity of the
alleged pain arising from that condition or (3) that the
objectively determined medical condition is of such a severity
that it can be reasonably expected to give rise to the alleged
pain.”
Id. (quoting Dyer, 395 F.3d at 1210).
When evaluating a claimant’s testimony, the ALJ should consider: (1) the
claimant’s daily activities; (2) the location, duration, frequency, and intensity of the
claimant’s pain or other symptoms; (3) precipitating and aggravating factors; (4) the
type, dosage, effectiveness, and side effects of any medication to alleviate pain or
other symptoms; (5) treatment other than medication for relief of pain or other
symptoms; (6) any measures a claimant uses to relieve pain or other symptoms; and
(7) other factors concerning a claimant’s functional limitations and restrictions due
to pain or other symptoms. 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3); Ross v.
Comm’r of Soc. Sec., 794 F. App’x 858, 867 (11th Cir. 2019).
The ALJ should consider these factors along with all of the evidence of record.
Ross, 794 F. App’x 867. If the ALJ discredits this testimony, then the ALJ “‘must
clearly articulate explicit and adequate reasons for’ doing so.” Id. (quoting Dyer, 395
F.3d at 1210). The ALJ may consider the consistency of the claimant’s statements
along with the rest of the record to reach this determination. Id. Such findings “‘are
the province of the ALJ,’ and we will ‘not disturb a clearly articulated credibility
finding supported by substantial evidence.’” Id. (quoting Mitchell v. Comm’r of Soc.
Sec., 771 F.3d 780, 782 (11th Cir. 2014)). A decision will be affirmed as long as the
decision is not a “broad rejection which is not enough to enable [a reviewing court]
to conclude that the ALJ considered [the claimant’s] medical condition as a whole.”
Dyer, 395 F.3d at 1211 (quotation and brackets omitted).
In the decision, the ALJ made these general findings on Plaintiff’s subjective
complaints:
After careful consideration of the evidence, the undersigned
finds 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.
(Tr. 22). The ALJ considered Plaintiff’s daily activities. (Tr. 21-22). The ALJ also
summarized Plaintiff’s reported complaints at medical visits, her hearing testimony,
her medication regimen, and objective medical testing. (Tr. 22-24).
The ALJ determined that the examination findings had not been consistent
with the degree of limitations that Plaintiff alleged, particularly with regard to
weakness, inability to use her right hand, and limited ability to walk. (Tr. 24). The
ALJ also found that later records actually reflect fewer clinical abnormalities. (Tr.
24). The ALJ then cited treatment notes and testing that do not support Plaintiff’s
complaints. (Tr. 24-25). The ALJ concluded that objective findings at medical visits
lack support for her complaints – such as no abnormalities noted in a physical exam
at Advanced Pain Care, no trigger points observed in her back or extremities, her
neurological exam was grossly intact, and her gait was intact. (Doc. 25).
The ALJ also found Plaintiff’s pain management treatment had been
inconsistent with reports of uncontrolled severe pain and cites records of Plaintiff’s
medication management. (Tr. 25). The ALJ discussed both types of Plaintiff’s
headaches, their treatment, and the improvement or resolution of both. (Tr. 25-26).
The ALJ also cited more recent records that do not reflect complaints or
abnormalities related to Plaintiff’s allegedly disabling condition, including
emergency room visits and a primary care visit, which showed full range of motion
in the upper and lower extremities, no motor or sensory deficits, and normal gait.
(Tr. 26). The ALJ concluded that “[t]he complaints and objective findings were
inconsistent with her treatment records.” (Tr. 26).
The ALJ considered the factors in the regulations as well as the medical and
other evidence of record as a whole in reaching her decision as to Plaintiff’s
subjective complaints. The ALJ clearly articulated explicit, adequate reasons in
finding Plaintiff’s representations of intensity, persistence, and limiting effects of
her symptoms were not entirely consistent with the record and supported these
findings with substantial evidence found in the record. Further, even if the evidence
preponderates against the Commissioner’s decision, the Court must affirm if
substantial evidence supports the Commissioner’s decision. Buckwalter v. Acting
Comm’r of Soc. Sec., 5 F.4th 1315, 1320 (11th Cir. 2021). Plus, the Court may not
decide the facts anew, reweigh the evidence, or substitute its judgment for that of the
Commissioner. Mitchell v. Comm’r, Soc. Sec. Admin., 771 F.3d 780, 782 (11th Cir.
2014). Thus, the ALJ did not err in considering Plaintiff’s subjective complaints.
C. Medical Opinion Evidence
Plaintiff argues that the ALJ erred in not assigning weight to the opinion of
Geoffrey Jones, M.D. (Doc. 21, p. 32). Plaintiff concedes that the ALJ discussed Dr.
Jones’s opinions and indicated that she did not find them persuasive because they
were inconsistent with Dr. Jones’s treatment notes and other evidence of record.
(Doc. 21, p. 32). Under the new regulations, the ALJ properly considered Dr. Jones’s
opinions.3
3 Plaintiff argues that the ALJ must state the particular weight of a given physician’s opinion and
The regulations for disability cases filed after March 27, 2017 – such as this
one – changed and an ALJ no longer defers or gives any specific evidentiary weight
to a medical opinion. 20 C.F.R. § 404.1520c(a), 20 C.F.R. § 416.920c(a). Thus, an
ALJ no longer uses the term “treating source” and does not defer or give specific
evidentiary weight, including controlling weight, to any medical opinion or prior
administrative medical finding. Torres v. Comm’r of Soc. Sec., No. 6:19-cv-1662-
ORL-PDB, 2020 WL 5810273, at *2 (M.D. Fla. Sept. 30, 2020) (citing 20 C.F.R.
§ 404.1520c(a)).
Instead, an ALJ assesses the persuasiveness of a medical source’s opinions
given the following five factors, with the first two being the most important: (1)
supportability; (2) consistency; (3) relationship with the claimant, including the
the reasons for it. (Doc. 22, p. 31-32). Recently, the Eleventh Circuit decided that the new
regulations, specifically 20 C.F.R. § 404.1520c, apply to cases filed after March 27, 2017. See
Harner v. Soc. Sec. Admin., Comm’r, No. 21-12148, 2022 WL 2298528, at *4 (11th Cir. June 27,
2022).
Section 404.1520c falls within the express delegation to the Commissioner to
“adopt reasonable and proper rules and regulations to regulate and provide for the
nature and extent of the proofs and evidence and the method of taking and
furnishing the same” for adjudicating disability claims. See 42 U.S.C. § 405(a). And
although the Act instructs administrative law judges to “make every reasonable
effort to obtain from the individual’s treating physician ... all medical evidence ...
necessary” to make a proper disability determination, 42 U.S.C. § 423(d)(5)(B), the
Act does not specify how this evidence is to be weighed. Because section 404.152c
falls within the express delegation and is not “manifestly contrary to the statute,”
see Chevron, 467 U.S. at 844, 104 S.Ct. 2778, the regulation did not “exceed the
[Commissioner’s] statutory authority.” See Heckler, 461 U.S. at 466, 103 S.Ct.
1952.
Id. at *3. Thus, the Court will consider the medical source opinion under the rubric of the new
regulations.
length, frequency, and purpose of the examining and any treatment relationship; (4)
specialization; and (5) other factors, such as the source’s familiarity with other
evidence concerning the claim, that tend to support or contradict the medical
opinion. 20 C.F.R. § 404.1520c(a)-(c); 20 C.F.R. § 404.920c(a)-(c). An ALJ may
but is not required to explain how he considers factors other than supportability and
consistency, unless two or more opinions are equally persuasive on the same issue.
20 C.F.R. § 404.1520c(b)(2); 20 C.F.R. § 416.920c(b)(2).
For supportability, the revised rules provide: “The more relevant the objective
medical evidence and supporting explanations presented by a medical source are to
support his or her medical opinion(s) or prior administrative medical finding(s), the
more persuasive the medical opinions or prior administrative medical finding(s) will
be.” 20 C.F.R. § 404.1520c(c)(1); 20 C.F.R. § 416.920c(c)(1). For consistency, the
revised rules provide: “The more consistent a medical opinion(s) or prior
administrative medical finding(s) is with the evidence from other medical sources
and nonmedical sources in the claim, the more persuasive the medical opinion(s) or
prior administrative medical finding(s) will be.” 20 C.F.R. § 404.1520c(c)(2); 20
C.F.R. § 416.920c(c)(2).
The new regulations also differentiate between medical opinions and “other
medical evidence.” 20 C.F.R. § 404.1513(a)(2)-(3). “A medical opinion is a
statement from a medical source about what you can still do despite your
impairment(s) and whether you have one or more impairment-related limitations or
restrictions” in the abilities listed in paragraphs (a)(2)(i) through (iv). 20 C.F.R.
§ 404.1513(a)(2). “Other medical evidence is evidence from a medical source that
is not objective medical evidence or a medical opinion, including judgments about
the nature and severity of your impairments, your medical history, clinical findings,
diagnosis, treatment prescribed with response, or prognosis.” 20 C.F.R.
§ 404.1513(a)(3).
The ALJ summarized Dr. Jones’s opinion that included limitations for
Plaintiff:
[Dr. Jones] reported he had begun treating the claimant in April
2018 and that she was diagnosed with lumbar spondylosis and
radiculopathy. He reported she experienced constant, sharp
pain. He noted her pain included localized bilateral shoulder
pain, localized right[-]hand pain, bilateral rib cage pain, and
low back pain radiating to the bilateral feet. He reported her
medication side effects included dizziness, drowsiness, nausea,
vomiting, and blurred vision. He opined the claimant can walk
one city block without rest or severe pain, sit for 20 minutes at
one time and a total of less than two hours total, stand one hour
at one time, and stand or walk about two hours total in an eight-
hour day. He indicated she would need a job that permits
shifting positions at will and periods of walking around. He
indicated she would not need unscheduled breaks. He indicated
she could lift and carry up to ten pounds occasionally, 20
pounds rarely, and never 50 pounds. He indicated she could
occasionally twist, stoop, crouch or squat, climb stairs, and
climb ladders. He indicated her abilities to reach, handle,
finger, feel, and push or pull were not affected by her
impairment. He estimated her symptoms would not likely be
severe enough to interfere with the attention and concentration
needed to perform even simple work and that she was capable
of low stress work. (Exhibit 21F).
(Tr. 28-29).
As Plaintiff conceded, the ALJ considered Dr. Jones’s treatment records and
opinions. (Tr. 28-29). The ALJ found Dr. Jones’s opinions unpersuasive because
they were inconsistent with his own treatment notes as well as the record as a whole.
(Tr. 29). The ALJ provides examples, such as treatment notes through December
2019 that reflected normal objective findings with neurological exam grossly intact
and gait intact, no weakness or decreased range of motion, or the need for an assistive
device. (Tr. 29). While Plaintiff complained of severe pain, the ALJ noted that her
medications remained stable with some doses decreasing. (Tr. 29). And exams by
Plaintiff’s primary care provider and neurologist did not contain findings of
abnormal gait or neurological deficits. (Tr. 29). The ALJ also cited a consultative
exam in August 2018, at which Plaintiff exhibited full motor strength and normal
grip strength. (Tr. 29). The ALJ challenged Dr. Jones’s finding that an assistive
device was medically necessary and cited medical records reflecting Plaintiff had a
normal gait and was ambulating independently. (Tr. 29).
In applying the correct legal standard, the ALJ considered Dr. Jones’s
treatment records and opinions and provided valid reasons in finding Dr. Jones’s
opinions were unsupported by his own treatment notes and inconsistent with the
record as a whole and thus unpersuasive. These reasons are supported by substantial
evidence and the Court finds no error .
II. Conclusion
For the reasons discussed above, the Court finds that the decision of the
Commissioner is supported by substantial evidence and the Commissioner applied
the correct legal standard. The decision of the Commissioner is AFFIRMED. The
Clerk of Court is directed to enter judgment consistent with this opinion, terminate
all deadlines, and close the case.
DONE and ORDERED in Fort Myers, Florida on August 18, 2022.
UNITED STATES MAGISTRATE JUDGE
Copies furnished to:
Counsel of Record
Unrepresented Parties