Newsome v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

TERRILL THOMAS NEWSOME,

Plaintiff,

v. CASE NO. 3:21-cv-35-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 regarding his applications for a period of disability,

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

(“SSI”). Following an administrative hearing held on March 3, 2020, the

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

Plaintiff not disabled from April 2, 2017, the alleged disability onset date,

through March 18, 2020, the date of the ALJ’s decision.2 (Tr. 19-27, 34-67.)

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

Magistrate Judge. (Doc. 21.)

2 Plaintiff had to establish disability on or before December 31, 2021, his date

last insured, in order to be entitled to a period of disability and DIB. (Tr. 19.) The

earliest time that SSI benefits are payable is the month following the month in

Based on a review of the record, the briefs, and the applicable law, the

Commissioner’s decision is AFFIRMED.

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 view the evidence as a

whole, taking into account evidence favorable as well as unfavorable to the

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

which the application was filed. See 20 C.F.R. § 416.335. Plaintiff’s SSI application

was filed on July 16, 2018. (Tr. 19.)

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, he argues that the ALJ’s

Residual Functional Capacity (“RFC”) assessment is not supported by

substantial evidence, because the ALJ failed to properly evaluate the treating

opinions of Stephen Izeiyamu, M.D. by using the factors of supportability and

consistency according to the new Social Security Administration (“SSA”) rules

and regulations, or, alternatively, according to Eleventh Circuit precedent for

evaluating treating opinions.3 (Doc. 26 at 9-17.) Plaintiff explains:

3 Plaintiff’s alternative argument is that the ALJ erred in failing to provide

good cause for assigning little weight to Dr. Izeiyamu’s opinions. (Doc. 26 at 15-17.)

Plaintiff also points out that “the ALJ failed to analyze Dr. Izeiyamu’s opinions in

light of the length of the treatment relationship with Mr. Newsome and the

frequency of their examinations.” (Id. at 16.) However, the Eleventh Circuit

opinion on which Plaintiff relies to support his alternative argument, Simon v.

Commissioner, Social Security Administration, 1 F.4th 908 (11th Cir. 2021) (Simon

I), was subsequently withdrawn on the Commissioner’s petition for panel rehearing

and replaced with a new opinion by the Eleventh Circuit, namely, Simon v.

Commissioner, Social Security Administration, 7 F.4th 1094 (11th Cir. 2021) (Simon

II). Importantly, Simon II was factually distinguishable from the present case

because “Simon filed his claim in March of 2015,” so the Eleventh Circuit did not

need to consider how the new regulations, which apply to Mr. Newsome’s case,

affected “our precedents requiring an ALJ to give substantial or considerable weight

to a treating physician’s opinions absent good cause to do otherwise.” 7 F.4th at

1104 n.4. Moreover, the Eleventh Circuit has since clarified in an unpublished

decision that the new regulatory scheme, which applies to claims like Mr.

It is evident from the decision that the ALJ failed to provide a

reasonable explanation regarding the supportability and

consistency factors of Dr. Izeiyamu’s opinions. The statement

that Dr. Izeiyamu’s opinions were unsupported by other evidence

in the record is too vague and overbroad to substantiate the ALJ’s

decision.

Further, the ALJ failed to adequately address the supportability

of Dr. Izeiyamu’s opinions. The only thing the ALJ was arguing

was inconsistency with the other objective medical evidence of the

record. Moreover, it appears that Dr. Izeiyamu’s opinions were

well-supported by his treatment notes. . . .

Further, Dr. Izeiyamu’s opinions were consistent with the other

evidence in the record. . . . In 2018, [Plaintiff] was examined by

consultative examiner Dr. Sadat, whose findings were fairly

consistent with Dr. Izeiyamu’s. . . .

Dr. Sadat’s opinion was too vague to meaningfully contradict

[the] opinions of Dr. Izeiyamu. However, Dr. Sadat’s findings

themselves support [the] findings of Dr. Izeiyamu.

(Id. at 11-14 (emphasis in original) (internal citations omitted).)

Second, Plaintiff argues that the ALJ failed to explain why Plaintiff’s

activities of daily living were inconsistent with his alleged inability to

perform competitive work and the medical opinions of record. (Id. at 17.)

Plaintiff contends that the ability to do a few simple household chores is not

Newsome’s filed on or after March 27, 2017, “no longer requires the ALJ to either

assign more weight to medical opinions from a claimant’s treating source or explain

why good cause exists to disregard the treating source’s opinion,” but, instead, “an

ALJ should focus on the persuasiveness of medical opinions and prior

administrative medical findings by looking at five factors.” Matos v. Comm’r of Soc.

Sec., No. 21-11764, 2022 WL 97144, *4 (11th Cir. Jan. 10, 2022) (per curiam). As

such, this Court will not separately address Plaintiff’s alternative argument

regarding Dr. Izeiyamu’s opinions.

inconsistent with disability and adds that the opinions of both Dr. Izeiyamu

and Dr. Sadat assessed severe functional limitations. (Id. at 18-19.)

Defendant responds that the ALJ properly evaluated the medical

opinions of record and his decision is supported by substantial evidence.

(Doc. 27 at 5-9.) Defendant explains:

Plaintiff convolutes old medical evidence case law and

regulations with new medical evidence regulations and case law.

Contrary to Plaintiff’s assertion[,] there is no requirement to

state the weight afforded to a medical opinion and treating

physicians are not afforded any deference under the new

regulations. Moreover, under the facts of this case, the ALJ was

only required to discuss the supportability and consistency

factors . . . .

. . . Contrary to Plaintiff’s assertions, the ALJ is not required to

explain how he or she considered the other factors, like treating

relationship and specialization, unless he or she finds two or

more opinions or findings about the same issue are both equally

well-supported and consistent with the record, but not identical.

20 C.F.R. § 404.1520c(b)(3) (2017). Recently, the Eleventh

Circuit recognized that the “new regulatory scheme no longer

requires the ALJ to either assign more weight to medical

opinions from a claimant’s treating source or explain why good

cause exists to disregard the treating source’s opinion” and

affirmed when an ALJ properly evaluated a treating source

opinion under the new regulations. Matos v. Comm’r of Soc. Sec.,

__ F. App’x __, 2022 WL 97144, at *4 (11th Cir. Jan. 10, 2022).

This decision confirms the analysis of medical opinions under the

new regulations is not similar to the treating physician rule.

(Doc. 27 at 5-7 (emphasis in original).)

Defendant also argues that the ALJ properly considered Plaintiff’s

subjective complaints and his assessment is supported by substantial

evidence. (Id. at 11-14.) According to Defendant, the ALJ properly

considered Plaintiff’s daily activities and “did not unduly rely on Plaintiff’s

activities in deciding his claim, nor did the ALJ find Plaintiff’s activities to be

dispositive evidence of his ability to work,” but rather considered them

“together with the other evidence in accordance with the regulations, SSR 16-

3p, and Eleventh Circuit case law.” (Id. at 13-14.)

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 20 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, 2017.4 See

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

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

after March 27, 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

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

March 27, 2017.

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) through (c)(5), 416.920c(c)(1) through

(c)(5), as appropriate. 20 C.F.R. §§ 404.1520c(a), (b)(1), 416.920c(a), (b)(1).

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 supportability5 and consistency.6 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

5 “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), 416.920c(c)(1).

6 “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), 416.920c(c)(2).

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 is 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

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,7 specialization, and other factors.8 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 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.

Once a claimant establishes 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

7 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).

8 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).

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 findings in deciding the issue of disability,”

Foote, 67 F.3d at 1561. See also SSR 16-3p9 (stating that after the ALJ finds

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

intensity, persistence, and limiting effects 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 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.10 The determination

9 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.

10 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

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 16-3p.

“[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

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

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.

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. Medical Opinion Evidence

1. Stephen Izeiyamu, M.D.’s Treating Opinions

On May 3, 2018, Dr. Izeiyamu completed a Physical Impairment

Questionnaire about Plaintiff’s functioning. (Tr. 341-42.) In the

Questionnaire, he listed the following diagnoses: severe obstructive sleep

apnea (“OSA”), morbid obesity, and gouty arthritis. (Tr. 341.) Dr. Izeiyamu

opined that Plaintiff’s symptoms were severe enough to frequently interfere

with the attention and concentration required to perform simple work-related

tasks. (Id.) He also opined that Plaintiff needed to recline or lie down in

excess of the typical breaks during an eight-hour workday. (Id.) Plaintiff’s

five or six unscheduled breaks during the workday would last for 30 minutes

each. (Id.) Further, Dr. Izeiyamu opined that Plaintiff could walk five blocks

without rest, sit for 15 minutes and stand/walk for 10 minutes at one time,

sit for one hour total, and stand/walk for zero hours total in an eight-hour

workday. (Id.) In addition, Plaintiff could lift and carry less than 10 pounds

frequently and 20 pounds occasionally. (Tr. 342.) Finally, Dr. Izeiyamu

opined that Plaintiff would likely be absent from work more than four times a

month as a result of his impairments and that he was not physically capable

of working eight hours a day, five days a week on a sustained basis. (Id.)

On December 27, 2019, Dr. Izeiyamu completed a Physical Assessment

of Plaintiff’s functional abilities. (Tr. 494-95.) His diagnoses were severe

OSA and chronic gouty arthritis. (Tr. 494.) Dr. Izeiyamu again opined that

Plaintiff’s symptoms were severe enough to frequently interfere with the

attention and concentration required to perform simple work-related tasks.

(Id.) He also opined that Plaintiff needed to recline or lie down in excess of

the typical breaks during an eight-hour workday. (Id.) Plaintiff’s five or six

unscheduled breaks during the workday would last for 15-30 minutes each.

(Id.) Further, Dr. Izeiyamu opined that Plaintiff could walk two city blocks

without rest, sit for one hour, and stand/walk for one hour total in an eight-

hour workday. (Id.) In addition, Plaintiff could lift and carry 10 pounds

frequently and 20 pounds occasionally. (Id.) Dr. Izeiyamu again opined that

Plaintiff would likely be absent from work more than four times a month as a

result of his impairments. (Tr. 495.)

2. Mir Ali Sadat, M.D.’s Examining Opinion

On September 29, 2018, Dr. Sadat examined Plaintiff at the request of

the Florida Division of Disability Determination.11 (Tr. 380-86.) Dr. Sadat

recorded the following functional status:

-Sitting: Cannot for long hours, back hurts

-Standing: Can stand for 10 minute[s], left toe hurts

-Walking: Able to walk half a block

-Cooking/Meal Prep: Himself

-Personal Care (Bathe/dressing): himself

-Housekeeping and Laundry: himself

-Shopping/Banking: mother helps

11 Dr. Sadat noted: “I have reviewed the patient’s medical history and

radiological studies, if any, given to me to the best of my ability. I have performed a

thorough history and physical examination of the patient to the best of my ability.

The information in this document is based on the information given to me from the

patient.” (Tr. 386.)

-Driving: no issues

-Hobbies: football games

(Tr. 380.)

Plaintiff’s physical examination was unremarkable except for the

following: morbid obesity; mild swelling, tenderness with palpation, and

limited range of motion of the left big toe; inability to walk on heels and toes

due to left toe pain; and inability to squat and rise due to morbid obesity. (Tr.

381-83; see also Tr. 385 (noting reduced range of motion in the great toe).)

Plaintiff was diagnosed with gout in the left big toe, hypertension, diabetes

mellitus type II, morbid obesity, and OSA on continuous positive airway

pressure (“CPAP”). (Tr. 385.)

In the Medical Source Statement (“MSS”), Dr. Sadat opined as follows:

-Abilities: Claimant is unable to perform work related physical

activities[,] such as sitting, standing, walking, lifting/carrying/

handling objects for long times, as well as work related mental

activities[,] such as understanding[] [and] sustained

concentration. [The] mental impairment statement is based on

claimant[’s] testimony. Claimant states that he falls asleep

easily during the day and has difficulties concentrating.

He mentioned that he has obstructive sleep apnea, he uses CPAP

during nights but his sleep is still disrupted by multiple apneas.

He mentioned that when he watches TV at home he just fall[s]

asleep after few minutes even during very important games.

-Limitations: Morbid obesity, Gout disease. States [sic] he feels

sleepy and has difficulties concentrating during days due to OSA.

(Id. (emphasis in original).) Based on the physical examination performed,

Dr. Sadat recommended a follow-up with a primary care provider and weight

loss. (Id.)

3. State Agency Non-Examining Consultants’

Opinions

On October 3, 2018, after reviewing the records available as of that

date, Jolita Burns, M.D. completed a Physical RFC Assessment of Plaintiff’s

functional abilities. (Tr. 74-76.) Dr. Burns opined, inter alia, that Plaintiff

could lift and/or carry 20 pounds occasionally and ten pounds frequently;

could stand and/or walk for about six hours and sit for about six hours in an

eight-hour workday; could occasionally balance and climb ramps, stairs,

ladders, ropes, and scaffolds; and should avoid concentrated exposure to

extreme heat, humidity, and hazards. (Id.)

On January 30, 2019, Max Kattner, M.D. completed a Physical RFC

Assessment of Plaintiff’s functional abilities. (Tr. 96-99.) He opined, inter

alia, that Plaintiff could lift and/or carry 20 pounds occasionally and ten

pounds frequently; could stand and/or walk for about six hours and sit for

about six hours in an eight-hour workday; could frequently climb ramps and

stairs; could occasionally balance and climb ladders, ropes, and scaffolds; and

should avoid concentrated exposure to extreme heat, humidity, and hazards.

(Tr. 96-98.)

D. The ALJ’s Decision

At step two of the sequential evaluation process,12 the ALJ found that

Plaintiff had the following severe impairments: morbid obesity, OSA,

diabetes mellitus, hypertension, gouty arthritis, and sciatica. (Tr. 21.) 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. 22.)

Then, before proceeding to step four, the ALJ determined that Plaintiff

had the RFC to perform light work with limitations, as follows:

The claimant can climb ramps and stairs no more than

frequently. The claimant can balance and climb ladders, ropes,

and scaffolds no more than occasionally. The claimant must

avoid concentrated exposure to heat, humidity, and hazards such

as unprotected heights and moving machinery. The claimant

requires the ability to alternate between sitting and standing at

will.

(Id.) The ALJ stated that he had “considered all symptoms and the extent to

which these symptoms [could] reasonably be accepted as consistent with the

objective medical evidence and other evidence.” (Id.) The ALJ determined

that although Plaintiff’s medically determinable impairments could

reasonably be expected to cause his alleged symptoms, his statements

12 The Commissioner employs a five-step process in determining disability.

See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).

concerning the intensity, persistence, and limiting effects of those symptoms

were “not entirely consistent with the medical evidence and other evidence in

the record for the reasons explained in [the] decision.” (Tr. 23.)

The ALJ then summarized Plaintiff’s testimony as follows:

At the hearing, the claimant testified that he is currently 39

years old and he has a high school education. He has not worked

since April 2017. He has previously worked in landscaping. He

experiences gout attacks two or three times a month, and these

can last for four days. His foot stays swollen because of gout, and

he has not been able to wear a shoe for 7 months. He can stand

for 10 minutes and walk for 10 minutes. He uses a cane about 3

times a month when he has gout attacks. He can sit for 30

minutes. He gets 6 hours of sleep at night with a CPAP machine

and 2 or 3 hours without a CPAP machine. He drives about once

a month. He fell asleep at a stoplight when he was driving about

a year ago. His blood pressure is borderline high, and was

recently 160/94. He has gone to the emergency room for high

blood pressure twice in the past year. He can dress and bathe

himself independently and prepare simple meals. He is able to

wash dishes and do laundry unless he has a gout flare-up. He is

able to go grocery shopping independently. He enjoys playing

cards and he attends church occasionally. He can lift about 20

pounds and carry it about 10 to 15 feet. He can climb a flight of

stairs slowly. He can reach overhead. He can hold a hammer but

he would have trouble using it during a gout attack. He can pick

up small objects. Stooping and squatting is painful.

(Id.)

The ALJ also addressed the medical evidence and opinions of record,

including the physical impairment assessments completed by Dr. Izeiyamu in

May 2018 and December 2019, the consultative examination findings by Dr.

Sadat, and the State agency reviewing doctors’ opinions. (Tr. 23-24.) The

ALJ noted that Dr. Izeiyamu’s opined limitations on both occasions were

similar, but his opinions were found to be “not persuasive,” because they were

“not supported by the other objective medical evidence and medical findings

of record.” (Tr. 23.) In contrast, Dr. Sadat’s opinion was found to be

“persuasive” because it was “generally consistent with other medical findings

of record.” (Tr. 24.) The State agency doctors’ opinions from October 2018

and January 2019 were found to be “persuasive,” because they were

“consistent with the limited findings contained in the rest of the objective

medical evidence of record.” (Id.)

After addressing the relevant medical evidence, the ALJ made the

following findings:

[The medical] evidence does not establish that the claimant’s

impairments are disabling in nature or prevent him from

performing work in accordance with the [RFC] assessment set

forth above. The record shows several severe impairments, but

does not establish that any of these conditions are productive [sic]

of work-preclusive limitations. He has acute flare-ups of gouty

arthritis that primarily affect his legs, but the objective medical

evidence does not demonstrate significant ongoing gait

abnormalities or the need for an assistive device to ambulate.

These flare-ups are not shown to be experienced at a level of

frequency and/or intensity that would preclude the performance

of all work. He has also been diagnosed with type II diabetes

mellitus, but this condition is described as being without

complications and has not been associated with substantial

health conditions such as diabetic neuropathy or diabetic

retinopathy. He has been assessed with obstructive sleep apnea

and hypertension, but these conditions do not cause a level of

functional limitation that would prevent the performance of all

basic work activities. He was also treated for sciatica in October

2019, but examination findings were normal apart from lumbar

area muscle spasms. He is not shown to have significant deficits

in strength or sensation, significant limitation of motion, or gait

abnormalities. Diagnostic imaging has not established the

presence of any condition that would be expected to prevent all

work, and he is not shown to have significant limitations in using

his hands and fingers to perform fine and gross manipulative

tasks.

Additionally, he is able to perform a variety of activities when he

is not having a gout flare-up. He testified at the hearing that he

is able to bathe and dress himself independently, prepare simple

meals, wash dishes, do laundry, go grocery shopping

independently, and attend church. Such activities and abilities

are consistent with an ability to perform competitive work.

Significantly, the weight of the medical opinions of record is also

contrary to a finding that the claimant is disabled and unable to

perform all work. The record also indicates a history of

medication noncompliance, and Social Security Regulations

provide that a claimant will not be found disabled if prescribed

treatment is not followed without good reason . . . . Taken as a

whole, his impairments are not shown to be productive [sic] of a

level of functional limitation that precludes the performance of

all basic work activities, as is required for a finding of disability.

Finally, the [ALJ] has considered the combined effect of the

claimant’s impairments and the possibility that the combined

effect can be greater than each of the impairments considered

separately. The claimant’s impairments have been considered

when assessing the claim under the listings and during the other

steps of the sequential evaluation process, including when

assessing the claimant’s [RFC].

(Tr. 24-25.) The ALJ concluded that the RFC assessment was “supported by

the objective medical evidence, including the claimant’s treatment records

and the credible medical opinions of record, and also by the claimant’s own

testimony and actions.” (Tr. 25.)

Then, at step four, the ALJ determined that Plaintiff was unable to

perform his past relevant work of lawn service worker. (Tr. 25-26.) At the

fifth and final step of the sequential evaluation process, considering

Plaintiff’s age, education, work experience, RFC, and the testimony of the

vocational expert (“VE”), the ALJ determined that there were jobs existing in

significant numbers in the national economy that Plaintiff could perform,

such as cashier II (DOT No. 211.462-010), ticket taker (DOT No. 344.667-

010), marker (DOT No. 209.587-034), and router (DOT No. 222.587-038). (Tr.

26-27.) Therefore, the ALJ concluded that Plaintiff was not disabled from

April 2, 2017 through March 18, 2020. (Tr. 27.)

E. Analysis

The Court finds that the ALJ’s decision is based on correct legal

standards and is supported by substantial evidence in the record. First, the

ALJ properly evaluated Dr. Izeiyamu’s opinions under the new SSA rules and

regulations and his findings are supported by substantial evidence. “While

the ALJ may not have used the words ‘supportability’ and ‘consistency,’ the

ALJ’s discussion of [Dr. Izeiyamu’s] opinions and findings regarding the

record was based on those factors.” Cook, 2021 WL 1565832 at *5; see also

Thaxton v. Kijakazi, No. 1:20-cv-616-SRW, 2022 WL 983156, *8 (M.D. Ala.

Mar. 30, 2022) (stating that “the ALJ need not use any magic words in

discussing whether a medical opinion is supported by evidence from the

medical source himself and whether the opinion is consistent with other

evidence of record”); cf. Cueva v. Kijakazi, No. 1:20-cv-407, 2021 WL 4192872,

*5 (E.D. Cal. Sept. 15, 2021) (“An ALJ need not recite any magic words to

reject a physician’s opinion where the record reveals specific, legitimate

inferences that may be drawn from the ALJ’s opinion justifying the decision

not to adopt a physician’s opinion.”).

Here, after setting forth the specific opinions rendered by Dr. Izeiyamu

in 2018 and 2019, the ALJ found those opinions to be “not persuasive”

because they were “not supported by the other objective medical evidence and

medical findings of record.” (Tr. 23; see also Tr. 25 (noting that in

determining the RFC, the ALJ considered the objective medical evidence,

including treatment records and credible medical opinions, as well as

Plaintiff’s testimony and actions).) In doing so, the ALJ fairly addressed both

the supportability and consistency factors. While the ALJ could have been

more explicit, his findings are nevertheless supported by substantial

evidence.

In his discussion of the opinion evidence, the ALJ noted the limited

findings in the objective medical evidence of record. (Tr. 24; see also Tr. 419,

428, 432, 435, 439, 453-55, 457-59, 461, 464, 467-68, 471-72, 475, 500-01 &

503-04 (showing limited findings in the objective medical evidence and that

Plaintiff was treated conservatively with medications for his conditions).)

Specifically, despite noting some gout flare-ups, the objective medical

evidence did not demonstrate significant ongoing gait abnormalities or the

need for an assistive device. (Tr. 24; see also Tr. 453-54, 500 & 503-04 (noting

“gout symptoms [were] improving” despite limited range of motion of the left

ankle); Tr. 357-58 (noting that Plaintiff was discharged from the emergency

room on November 4, 2017 after complaining of right ankle pain); cf. Tr. 464,

467, 471 & 475 (noting “hypertonicity and poor tone”); Tr. 468 & 474 (noting

“uric acid elevation[] [and] gout exacerbation”).) Further, as the ALJ stated,

Plaintiff’s diabetes was not “associated with substantial health conditions

such as diabetic neuropathy or diabetic retinopathy.” (Tr. 24; see also Tr.

352-53 (noting that Plaintiff was discharged from the emergency room on

June 24, 2018 in stable condition after complaining of weakness and fatigue

due to hyperglycemia).)

Similarly, Plaintiff’s OSA and hypertension did “not cause a level of

functional limitation that would prevent the performance of all basic work

activities.” (Tr. 24; see also Tr. 467, 471 & 474 (noting that Plaintiff was

doing better with CPAP); Tr. 349-50 (noting that Plaintiff was discharged

from the emergency room on July 17, 2018 in stable condition after being

admitted for elevated blood pressure).) In addition, while Plaintiff was

treated for sciatica in October 2019, his “examination findings were normal

apart from lumbar area muscle spasms.” (Tr. 25; see also Tr. 444-47, 517-27,

533.) Also, as the ALJ stated, “[d]iagnostic imaging has not established the

presence of any condition that would be expected to prevent all work.” (Tr.

25; see also Tr. 369 (noting that X-rays of the right ankle showed mild soft

tissue swelling).) Further, the ALJ properly noted that the record

“indicate[d] a history of medication noncompliance.” (Tr. 25; see also Tr. 432

& 468 (noting history of non-compliance and “[b]lood pressure regimen

compliance [was] strongly advised”), 453, 457, 459, 463-64, 467, 470, 474, 500,

503.)

In addition, the ALJ’s extensive discussion of the evidence as part of his

RFC determination and elsewhere in the decision further supports his

evaluation of Dr. Izeiyamu’s opinions. See Thaxton, 2022 WL 983156 at *8

(“An ALJ may refer to evidence discussed elsewhere in the decision when

evaluating medical opinions or prior administrative medical findings.”).

Based on the foregoing, the ALJ’s consideration of Dr. Izeiyamu’s opinions

was supported by substantial evidence and “comported with the requirements

of the new Social Security Regulations because the ALJ articulated the

evidence affecting the supportability and consistency of the opinion[s].” Cook,

2021 WL 1565832 at *5.

Turning to the second argument on appeal, the ALJ’s consideration of

Plaintiff’s subjective complaints and daily activities was adequate and

supported by substantial evidence. The ALJ found that while Plaintiff’s

medically determinable impairments could reasonably be expected to cause

the alleged symptoms, his 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.” (Tr. 23.) The ALJ then

summarized Plaintiff’s testimony, the objective medical evidence, and the

opinions of record in determining the RFC. (Tr. 23-25.) The ALJ noted that

Plaintiff was “able to perform a variety of activities when he [was] not having

a gout flare-up.” (Tr. 25, 52-53.) Specifically, the ALJ recited Plaintiff’s

testimony that “he [was] able to bathe and dress himself independently,

prepare simple meals, wash dishes, do laundry, go grocery shopping

independently, and attend church,” and found such activities and abilities to

be “consistent with an ability to perform competitive work.” (Tr. 25, 52-53,

55.) The ALJ concluded that Plaintiff’s testimony and actions, along with the

objective medical evidence and the credible medical opinions, supported his

RFC assessment. (Tr. 25.)

The Court finds that the ALJ provided explicit and adequate reasons,

supported by substantial evidence, for his evaluation of Plaintiff’s subjective

complaints. The ALJ also properly considered Plaintiff’s daily activities as

one among several factors in determining that Plaintiff was not disabled.

See, e.g., Matos, 2022 WL 97144 at *7 (stating that “the ALJ reasonably

relied on Matos’s statements that she engaged in a variety of daily living

activities such as independent dressing and grooming, cooking, cleaning,

shopping, driving, going on family vacations, and taking care of her family”).

To the extent Plaintiff argues that the ALJ should have assessed greater

limitations in light of his reported daily activities, subjective complaints

alone are insufficient to establish work-related limitation or disability. See

42 U.S.C. § 423(d)(5)(A) (“An individual’s statement as to pain or other

symptoms shall not alone be conclusive evidence of disability . . . .”). Also, to

the extent Plaintiff argues that greater limitations should have been assessed

in light of the opinions of Dr. Izeiyamu and Dr. Sadat, the Court has already

determined that the ALJ properly evaluated the medical opinion evidence.13

Here, the ALJ’s RFC assessment accounted for Plaintiff’s impairments and

any resulting limitations to the extent they were supported by credible

evidence.

In sum, the ALJ properly considered Plaintiff’s subjective complaints,

including reported daily activities, and his assessment was supported by

13 While Plaintiff states that “Dr. Sadat’s opinion was too vague to

meaningfully contradict [the] opinions of Dr. Izeiyamu,” he argues that “Dr. Sadat’s

findings themselves support [the] findings of Dr. Izeiyamu.” (Doc. 26 at 14.) The

ALJ found that Dr. Sadat’s opinion was persuasive because it was “generally

consistent with other medical findings of record.” (Tr. 24.) The ALJ similarly found

that the State agency doctors’ opinions were persuasive because they were

“consistent with the limited findings contained in the rest of the objective medical

evidence of record.” (Id.) As shown earlier, the ALJ properly observed that the

objective medical record included limited findings and his evaluation of the medical

opinions is supported by substantial evidence.

substantial evidence. The ALJ’s evaluation of the medical opinions was also

based on correct legal standards and was supported by substantial evidence.

Ill. 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 ALJ’s decision

that Plaintiff was not disabled within the meaning of the Social Security Act

for the time period in question should be affirmed.

Accordingly, it is ORDERED:

1. The Commissioner’s decision is AFFIRMED.

2. The Clerk of Court shall enter judgment accordingly, terminate

any pending motions, and close the file.

DONE AND ORDERED at Jacksonville, Florida, on September 18,

2022.

; MONTE C. RICHARDSON

UNITED STATES MAGISTRATE JUDGE

27

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