Lewno v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

ARIC JAMES LEWNO,

Plaintiff,

v. Case No. 8:21-cv-1334-SPF

KILOLO KIJAKAZI,

Commissioner of the Social

Security Administration,1

Defendant.

/

ORDER

Plaintiff seeks judicial review of the denial of his claim for a period of disability,

disability insurance benefits (“DIB”), and Supplemental Security Income (“SSI”). As the

Administrative Law Judge’s (“ALJ”) decision was based on substantial evidence and

employed proper legal standards, the Commissioner’s decision is affirmed.

I. Procedural Background

Plaintiff filed an application for a period of disability, DIB, and SSI (Tr. 241–51).

The Commissioner denied Plaintiff’s claims both initially and upon reconsideration (Tr.

136–41, 144–55). Plaintiff then requested an administrative hearing (Tr. 156–57). Per

Plaintiff’s request, the ALJ held a hearing at which Plaintiff appeared and testified (Tr.

29–75). Following the hearing, the ALJ issued an unfavorable decision finding Plaintiff

1 Kilolo Kijakazi became the Acting Commissioner of Social Security on July 9, 2021, and

is substituted as Defendant in this suit pursuant to Rule 25(d) of the Federal Rules of Civil

Procedure.

not disabled and accordingly denied Plaintiff’s claims for benefits (Tr. 12–28).

Subsequently, Plaintiff requested review from the Appeals Council, which the Appeals

Council denied (Tr. 1–6). Plaintiff then timely filed a complaint with this Court (Doc. 1).

The case is now ripe for review under 42 U.S.C. §§ 405(g), 1383(c)(3).

II. Factual Background and the ALJ’s Decision

Plaintiff, who was born in 1969 (Tr. 31), claimed disability beginning August 8,

2019 (Tr. 241, 245). Plaintiff has a GED (Tr. 279) and past relevant work as an automobile

customizer, electrical appliance servicer, and a composite job including industrial trucker

operator and shipping and receiving clerk (Tr. 22). Plaintiff alleged disability due to

chronic back pain, chronic neck pain, chronic right knee pain, and work-related injury

(Tr. 76).

In rendering the administrative decision, the ALJ concluded that Plaintiff meets

the insured status requirements through December 31, 2024 and had not engaged in

substantial gainful activity since August 8, 2019, his alleged onset date (Tr. 17). After

conducting a hearing and reviewing the evidence of record, the ALJ determined Plaintiff

had the following severe impairment: degenerative disc disease of the lumbar, thoracic,

and cervical spine (Tr. 17). Notwithstanding the noted impairment, the ALJ determined

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

equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (Tr.

18). The ALJ then concluded that Plaintiff retained a residual functional capacity

(“RFC”) to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b),

“except that he can never climb ropes, ladders, or scaffolds and occasionally balance,

stoop, kneel, crouch, and crawl. He can frequently push, pull, and reach with the bilateral

upper extremities.” (Tr. 18). In formulating Plaintiff’s RFC, the ALJ considered Plaintiff’s

subjective complaints and determined that, although the evidence established the presence

of underlying impairments that reasonably could be expected to produce the symptoms

alleged, Plaintiff’s statements as to the intensity, persistence, and limiting effects of his

symptoms were not entirely consistent with the medical evidence and other evidence (Tr.

19).

Considering Plaintiff’s noted impairments and the assessment of a vocational

expert (“VE”), the ALJ determined Plaintiff could not perform his past relevant work but

could work as a marker, small parts assembler, and a laundry classifier/sorter (Tr. 23).

Accordingly, based on Plaintiff’s age, education, work experience, RFC, and the

testimony of the VE, the ALJ found Plaintiff not disabled (Id.).

III. Legal Standard

To be entitled to benefits, a claimant must be disabled, meaning he or she must be

unable to engage in 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. §§ 423(d)(1)(A), 1382c(a)(3)(A). A “physical or mental impairment”

is an impairment that results from anatomical, physiological, or psychological

abnormalities, which are demonstrable by medically acceptable clinical and laboratory

diagnostic techniques. 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D).

The Social Security Administration, in order to regularize the adjudicative process,

promulgated the detailed regulations currently in effect. These regulations establish a

“sequential evaluation process” to determine whether a claimant is disabled. 20 C.F.R.

§§ 404.1520, 416.920. If an individual is found disabled at any point in the sequential

review, further inquiry is unnecessary. 20 C.F.R. §§ 404.1520(a), 416.920(a). Under this

process, the ALJ must determine, in sequence, the following: whether the claimant is

currently engaged in substantial gainful activity; whether the claimant has a severe

impairment, i.e., one that significantly limits the ability to perform work-related functions;

whether the severe impairment meets or equals the medical criteria of 20 C.F.R. Part 404

Subpart P, Appendix 1; and whether the claimant can perform his or her past relevant

work. If the claimant cannot perform the tasks required of his or her prior work, step five

of the evaluation requires the ALJ to decide if the claimant can do other work in the

national economy in view of his or her age, education, and work experience. 20 C.F.R.

§§ 404.1520(a), 416.920(a). A claimant is entitled to benefits only if unable to perform

other work. Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987); 20 C.F.R. §§ 404.1520(g),

416.920(g).

A determination by the Commissioner that a claimant is not disabled must be

upheld if it is supported by substantial evidence and comports with applicable legal

standards. See 42 U.S.C. §§ 405(g), 1383(c)(3). Substantial evidence is “such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.”

Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305

U.S. 197, 229 (1938) (internal quotation marks omitted)); Miles v. Chater, 84 F.3d 1397,

1400 (11th Cir. 1996). While the court reviews the Commissioner’s decision with

deference to the factual findings, no such deference is given to the legal conclusions.

Keeton v. Dep’t of Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994) (citations

omitted).

In reviewing the Commissioner’s decision, the court may not re-weigh the evidence

or substitute its own judgment for that of the ALJ even if it finds that the evidence

preponderates against the ALJ’s decision. Bloodsworth v. Heckler, 703 F.2d 1233, 1239

(11th Cir. 1983). The Commissioner’s failure to apply the correct law, or to give the

reviewing court sufficient reasoning for determining that he or she has conducted the

proper legal analysis, mandates reversal. Keeton, 21 F.3d at 1066. The scope of review is

thus limited to determining whether the findings of the Commissioner are supported by

substantial evidence and whether the correct legal standards were applied. 42 U.S.C. §

405(g); Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002).

IV. Analysis

Plaintiff argues that the ALJ erred because (1) she failed to properly evaluate the

opinion of Dr. Ashraf A. Ragab, M.D., Plaintiff’s treating orthopedist; and (2) she failed

to properly evaluate Plaintiff’s subjective complaints. For the reasons that follow, the ALJ

applied the correct legal standards, and the ALJ’s decision is supported by substantial

evidence.

a. Evaluation of Dr. Ragab’s Opinion

Plaintiff’s first argument is that the ALJ did not have good cause to reject Dr.

Ragab’s opinions (Doc. 20 at 10–13). As the Commissioner points out, however, Plaintiff

relies on case law that applies Social Security Administration (“SSA”) regulations that

have since been revised (Id. at 13–19).2

Before March 27, 2017, Social Security Administration (“SSA”) regulations

codified the treating physician rule, which required the ALJ to assign controlling weight

to a treating physician’s opinion if it was well supported and not inconsistent with other

record evidence. See 20 C.F.R. § 404.1527(c). Under the treating physician rule, if an ALJ

assigned less than controlling weight to a treating physician’s opinion, he or she had to

provide good cause for doing so. See Winschel v. Comm'r of Soc. Sec, 631 F.3d 1176, 1178-

79 (11th Cir. 2011).

In this case, however, revised SSA regulations (published on January 18, 2017, and

effective on March 27, 2017) apply because Plaintiff filed his claim on August 20, 2019

(see Tr. 241). As the SSA explained, “under the old rules, courts reviewing claims tended

to focus more on whether the agency sufficiently articulated the weight we gave treating

source opinions, rather than on whether substantial evidence supports our final decision

... these courts, in reviewing final agency decisions, are reweighing evidence instead of

applying the substantial evidence standard of review, which is intended to be highly

deferential to us.” Revisions to Rules Regarding the Evaluation of Medical Evidence, 82

2 For instance, Plaintiff cites Ledford v. Commissioner of Social Security, No. 6:13-cv-166-Orl-

TBS, 2014 WL 12623685, at *2 (M.D. Fla. Mar. 24, 2014), in which the district court

remanded the plaintiff’s case because the ALJ failed to state with particularity the weight

she assigned to a treating physician’s opinion and why (Doc. 20 at 10). The revised

regulations, however, eliminate the treating physician rule. See Harner v. Comm’r of Soc.

Sec., 38 F.4th 892, 897 (11th Cir. 2022).

Fed. Reg. 5844, 5853 (Jan. 18, 2017); see also Schink v. Comm’r of Soc. Sec., 935 F.3d 1245,

1259 n.4 (11th Cir. 2019).

The new regulations require an ALJ to apply the same factors when considering

the opinions from all medical sources. 20 C.F.R. § 404.1520c(a). As to each medical

source, the ALJ must consider: (1) supportability; (2) consistency; (3) relationship with

the claimant; (4) specialization; and (5) “other factors that tend to support or contradict a

medical opinion or prior administrative medical finding.” 20 C.F.R. § 404.1520c(c). But

the first two factors are the most important: “Under the new rule, the SSA will consider

the persuasiveness of all medical opinions and evaluate them primarily on the basis of

supportability and consistency.” Mackey v. Saul, No. 2:18-cv-02379-MGL-MGB, 2020

WL 376995, at *4 n.2 (D.S.C. Jan. 6, 2020) (citing 20 C.F.R. § 404.1520c(a),(c)(1)-(2))

(while there are several factors ALJs must consider, “[t]he most important factors ... are

supportability (paragraph (c)(1) of this section) and consistency (paragraph (c)(2) of this

section).”).

“Supportability” refers to the principle that “[t]he 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). “Consistency” refers to the principle that “[t]he 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). Put differently, the ALJ must analyze whether the medical source’s

opinion is (1) supported by the source’s own records; and (2) consistent with the other

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

1565832, at *3 (M.D. Fla. Apr. 6, 2021), report and recommendation adopted, 2021 WL

1565162 (Apr. 21, 2021).

The new regulations also change the standards the ALJ applies when articulating

his or her assessment of medical source opinions. As mentioned above, an ALJ need not

assign specific evidentiary weight to medical opinions based on their source. See Tucker v.

Saul, No. 4:19-cv-759, 2020 WL 3489427, at *6 (N.D. Ala. June 26, 2020). While the

ALJ must explain how he or she considered the supportability and consistency factors,

the ALJ need not explain how he or she considered the other three factors.3 20 C.F.R. §

404.1520c(b)(2). And, in assessing the supportability and consistency of a medical

opinion, the regulations provide that the ALJ need only explain the consideration of these

factors on a source-by-source basis – the regulations do not require the ALJ to explain the

consideration of each opinion from the same source. See 20 C.F.R. § 404.1520c(b)(1).

Dr. Ragab began treating Plaintiff at Comprehensive Spine Institute in May 2019

(Tr. 406). Dr. Ragab diagnosed Plaintiff with cervicalgia, cervical disc disorder with

radiculopathy, intervertebral disc disorder with radiculopathy in the thoracic region, and

costochondritis (Tr. 408). During his initial consultation with Plaintiff, Dr. Ragab

3 The exception is when the record contains differing but equally persuasive medical

opinions or prior administrative medical findings about the same issue. See 20 C.F.R. §

404.1520c(b)(3).

recommended treatment with Mobic and steroid injections (Id.). After the initial

consultation, Dr. Ragab completed a worker’s compensation treatment status form in

which he opined that Plaintiff could lift no more than fifteen pounds (Tr. 411). At a return

visit in June 2019, Plaintiff told Dr. Ragab that the steroid injections did not help his pain

(Tr. 422). Considering this, Dr. Ragab advised Plaintiff that surgery might not be a good

idea, and Plaintiff elected not to proceed with surgery (Tr. 422–23). Plaintiff returned to

Dr. Ragab in April 2020, and Dr. Ragab noted that Plaintiff “is unable to contribute to

any gainful employment due to the extent of his pain” and provided Plaintiff a referral to

pain management (Tr. 468). Finally, Plaintiff visited Dr. Ragab in August 2020, and Dr.

Ragab stated that he believed Plaintiff “will have this chronic longstanding pain until the

annular tears have healed,” and that if they do not heal, then Plaintiff is a candidate for

multiple surgeries (Tr. 471). At each visit with Dr. Ragab, Plaintiff was found to have full

strength and a normal gait (Tr. 434–35, 456–57, 464–65, 467–68, 470–71).

After setting forth the specific medical findings by Dr. Ragab (Tr. 20–21), the ALJ

said the following regarding Dr. Ragab’s opinions:

In May of 2019, Dr. Ragab limited the claimant to lifting no more than 15

pounds (Exhibit 3F). In April of 2020, Dr. Ragab opined that the claimant

was never able to work due to pain (Exhibit 6F). These assessments are not

persuasive. The claimant has cervical disc disease but he retains full

strength. He works on motorcycles and performs all of the household chores

without difficulty. He takes Tylenol for pain and uses a TENs unit

sometimes (testimony and Exhibit 10E). He has declined surgery. He has

full strength with no atrophy, indicating that he has been able to maintain

activity and lift/carry more than 15 pounds. The claimant’s own testimony

establishes that he can work and that he is capable of performing light

exertional activity. In addition, a finding of able to work or not able to work

is a determination reserved for the Commissioner of Social Security.

(Tr. 21). Here, the ALJ’s consideration of Dr. Ragab’s opinions does not immediately

appear to track the new regulations’ requirements, as there is no reference to either

“supportability” or “consistency.” Use of these words is not required, however, as long

as the ALJ’s findings were ultimately based on these factors. See Cook v. Comm’r of Soc.

Sec., No. 6:20-cv-1197-RBD-DCI, 2021 WL 1565832, at *5 (M.D. Fla. Apr. 6, 2021)

(“While he may not have used the words ‘supportability’ and ‘consistency,’ the ALJ’s

discussion of Dr. Birkmire’s opinions and findings regarding the record was based on

those factors.”), report and recommendation adopted, 2021 WL 1565162 (Apr. 21, 2021);

Thaxton v. Kijakazi, No. 1:20-cv-616-SRW, 2022 WL 983156, at *8 (M.D. Ala. Mar. 30,

2022) (“[T]he 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 in the record.”). Here, the Court finds that they were.

As set forth above, the consistency factor refers to the relationship between a

medical source’s opinion and other evidence within the record. The ALJ’s analysis clearly

suggests that Dr. Ragab’s opinions are inconsistent with other evidence in the record. For

example, the ALJ noted that the opinion that Plaintiff is unable to work is inconsistent

with Plaintiff’s testimony that he currently works on motorcycles and performs household

chores without difficulty (Tr. 21, 37, 43). In addition, the ALJ noted that the opinion that

claimant is limited to lifting fifteen pounds is inconsistent with the medical findings that

claimant retains full strength (Tr. 21, 434–35, 456–57, 464, 467, 470).

The supportability factor deals with the extent to which a medical source has

articulated support for the source’s own opinion. The ALJ referenced Dr. Ragab’s own

findings that Plaintiff retains full strength with no atrophy, which does not support a

limitation to lifting no more than fifteen pounds (Tr. 21, 434–35, 456–57, 464–65, 467–

68, 470–71). While it is not immediately clear in the above-cited excerpt that the ALJ is

referring to Dr. Ragab’s findings, the ALJ’s extensive discussion of Dr. Ragab’s treatment

throughout the opinion clarifies this. See Womack v. Kijakazi, No. 8:21-cv-984-TPB-CPT,

2022 WL 3588275, at *7 (M.D. Fla. Aug. 5, 2022) (“Viewed in their totality, the ALJ’s

citation to and discussion of these records and other treatment notes adequately support

his determination that Dr. Kamat’s recommendations were not persuasive.”), report and

recommendation adopted, 2022 WL 3586547 (Aug. 22, 2022); 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.”); see also Lamirande v. Comm’r

of Soc. Sec., No. 21-80303-CIV, 2022 WL 1504756, at *4 (S.D. Fla. Apr. 21, 2022) (holding

that ALJ adequately explained supportability factor, despite not using the express term,

where ALJ cited to six record examples to explain why he found opinion unpersuasive,

and three of the examples came from medical source’s own records), report and

recommendation adopted, 2022 WL 1499943 (May 12, 2022); .

Plaintiff further argues that, contrary to the ALJ’s assessment, his daily activities

are not inconsistent with Dr. Ragab’s opinions. In support, Plaintiff cites to Cararra v.

Astrue, an unpublished opinion in which the Eleventh Circuit stated that the claimant’s

“somewhat minimal daily functions,” which included basic household chores, cooking,

driving, and attending church, were not “comparable to typical work activities” and

therefore did not constitute good cause to discount the opinion of the claimant’s treating

physician. 393 F. App’x 612, 614–15 (11th Cir. 2010). As set forth above, however, the

ALJ does not need to establish good cause to find the opinion of a treating physician to

be unpersuasive under the new regulations. Regardless, in appropriate circumstances,

courts in the Eleventh Circuit have found a claimant’s daily activities to qualify as good

cause to discount the opinion of a treating physician. See, e.g., Crow v. Comm’r, Soc. Sec.

Admin., 571 F. App’x 802, 806 (11th Cir. 2014) (“[E]vidence of Crow’s daily activities also

provided good cause to discount his treating physician’s opinion.”); Phillips v. Barnhart,

357 F.3d 1232, 1241 (11th Cir. 2004) (upholding ALJ’s decision to disregard the opinion

of claimant’s treating physician in part because it was inconsistent with claimant’s daily

activities). Moreover here, unlike in Cararra, Plaintiff’s daily activities are inconsistent

with the limitations in Dr. Ragab’s opinion. For example, Dr. Ragab’s opinion that

Plaintiff is completely unable to work due to pain is inconsistent with the fact that Plaintiff

works (albeit on a limited basis) in a friend’s motorcycle repair shop.4 See, e.g., Bliss v.

Comm’r of Soc. Sec., 254 F. App’x 757, 758 (11th Cir. 2007) (finding good cause existed to

discount opinion of treating physician where daily activities reported by claimant

contradicted physician’s responses on evaluation form).

Finally, as the Commissioner points out, the ALJ did not exclusively rely on

Plaintiff’s daily activities to find Dr. Ragab’s opinions unpersuasive. The ALJ also relied

on objective medical evidence, namely, the findings that Plaintiff retains full strength (Tr.

4 Moreover, as the ALJ acknowledged, this type of determination is reserved for the

Commissioner. See Cooper v. Astrue, 373 F. App’x 961, 962 (11th Cir. 2010) (stating that

the “task of determining a claimant’s ability to work is within the province of the ALJ,

not a doctor”).

21). This is clearly sufficient. See, e.g., Lineback v. Comm’r of Soc. Sec., No. 2:20-cv-947-

JLB-NPM, 2022 WL 736178, at *4 (M.D. Fla. Mar. 11, 2022) (holding that ALJ properly

found medical opinions to be unpersuasive where ALJ identified “specific, contradicting

opinions of other physicians . . . as well as Plaintiff’s ‘high functioning activities of daily

living’ to explain why [physician’s] opinions of marked limitations were inconsistent with

other record evidence”); Slanina v. Comm’r of Soc. Sec., No. 8:21-cv-37-DNF, 2022 WL

1498710, at *6 (M.D. Fla. May 12, 2022) (holding that substantial evidence supported

ALJ’s finding that medical opinion was unpersuasive where ALJ found opinion to be

inconsistent with other medical records and Plaintiff’s activities of daily living, and ALJ

cited to instances supporting these statements).

Considering the foregoing, Plaintiff has not established that the ALJ erred in her

analysis of Dr. Ragab’s opinion.

b. Subjective Complaints

Plaintiff next argues that the ALJ improperly evaluated his subjective complaints.

In determining whether a claimant is disabled, the ALJ must consider all symptoms,

including pain, and the extent to which those symptoms are reasonably consistent with

the objective medical evidence and other evidence. 20 C.F.R. §§ 404.1529(a), 416.929(a).

Once a claimant establishes that his pain or other subjective symptoms are disabling, “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.” Land v. Comm’r of Soc. Sec., 843 F. App’x 153, 155 (11th

Cir. 2021) (quoting Foote v. Chater, 67 F.3d 1553, 1561 (11th Cir. 1995)).

The Eleventh Circuit has established a three-part “pain standard” for the

Commissioner to apply in evaluating a claimant’s subjective complaints. The standard

requires: (1) evidence of an underlying medical condition; and either (2) objective medical

evidence to confirm the severity of the alleged pain arising from that condition, or (3) 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). “When evaluating a claimant's subjective symptoms, the ALJ must consider such

things as: (1) the claimant's daily activities; (2) the nature, location, onset, duration,

frequency, radiation, and intensity of pain and other symptoms; (3) precipitating and

aggravating factors; (4) adverse side-effects of medications; and (5) treatment or measures

taken by the claimant for relief of symptoms.” Davis v. Astrue, 287 F. App'x 748, 760 (11th

Cir. 2008) (citing 20 C.F.R. § 404.1529(c)(3)(i)-(vi)). If an ALJ rejects a claimant’s

subjective testimony, he must articulate explicit and adequate reasons for his decision.

Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005).

Social Security Ruling 16-3p cautions that “subjective symptom evaluation is not

an examination of an individual’s character.” Id. Adjudicators, as the regulations dictate,

are to consider all the claimant’s symptoms, including pain, and the extent to which these

symptoms can reasonably be accepted as consistent with the objective medical evidence

and other evidence in the record. Id. The regulations define “objective evidence” to

include medical signs shown by medically acceptable clinical diagnostic techniques or

laboratory findings. 20 C.F.R. §§ 404.1529, 416.929. “Other evidence,” again as the

regulations define, includes evidence from medical sources, medical history, and

statements about treatment the claimant has received. See 20 C.F.R. §§ 404.1513, 416.913.

Subjective complaint evaluations are the province of the ALJ. Mitchell v. Comm’r of Soc.

Sec., 771 F.3d 780, 782 (11th Cir. 2014).

Here, Plaintiff testified that he has severe pain in his middle chest and right side

where the ribs and spine meet (Tr. 55). He also testified that his back and neck become

stiff, and he experiences a dull, burning pain that “locks up” and makes it very hard to

move (Id.). He is prescribed Cymbalta for pain, but also takes Advil or Tylenol, and uses

ice and heat for twenty minutes twice per day (Tr. 54–57). He also uses a TENS unit every

other day (Id.). Regarding daily activities, Plaintiff testified that he helps a friend working

in his motorcycle shop for about six hours per week, he helps take care of his mother,

takes care of the house, does the grocery shopping, and takes care of his dogs (Tr. 37, 42–

43). He also testified that he is starting to try walking around his neighborhood with

walking sticks, he is taking classes online, and trains with resistance bands (Tr. 45–47).

The ALJ relied on boilerplate language in assessing Plaintiff’s subjective pain

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 statement

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. 19). This language directly addresses the Eleventh Circuit’s pain standard and is not

improper if supported by substantial evidence. See Danan v. Colvin, No. 8:12-cv-7-T-

27TGW, 2013 WL 1694856, at * 3 (M.D. Fla. Mar. 15, 2013), report and recommendation

adopted, 2013 WL 1694841 (Apr. 18, 2013). Here, the Court finds that it is. In evaluating

Plaintiff’s subjective complaints, the ALJ explained that the “objective medical evidence

of record does not support the claimant’s limitations to the debilitating extent alleged”

(Tr. 19). The ALJ then noted that Plaintiff’s testimony is supportive of an ability to work,

because Plaintiff states that he works a few hours per week in a motorcycle shop, he

performs household chores, and is in a full-time university degree program (Id.).

Plaintiff argues that the ALJ erred in this analysis because the ALJ focused

primarily on the objective medical evidence instead of analyzing all the factors outlined

in the regulations. See 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3). In support of this

argument, Plaintiff cites to SSR 16-3p, which states that the agency “will not disregard an

individual’s statements about the intensity, persistence, and limiting effects of symptoms

solely because the objective evidence does not substantiate the degree of impairment-

related symptoms alleged by the individual. A report of minimal or negative findings or

inconsistencies in the objective medical evidence is one of the many factors we must

consider . . . .” SSR 16-3p (emphasis added). The Commissioner responds that the ALJ

discussed most of the factors set forth in 20 C.F.R. §§ 404.1529(c)(3) and 416.929(c)(3),

including Plaintiff’s activities of daily living, reported symptoms, and treatment history.

The Commissioner is correct. In addition to discussing the objective medical

evidence, the ALJ discussed Plaintiff’s daily activities, explaining that Plaintiff works in a

motorcycle repair shop, performs household chores, and attends a full-time university

program (Tr. 19).5 See 20 C.F.R. §§ 404.1529(c)(3)(i), 416.929(c)(3)(i). Throughout the

5 Plaintiff also appears to suggest that the ALJ erred because she relied on the same daily

activities that she relied upon in finding Dr. Ragab’s opinions not to be persuasive (Doc.

20 at 22). Plaintiff, however, failed to cite any authority on this point or provide any

opinion, the ALJ discussed the location of Plaintiff’s pain, explaining that he has reported

pain in his back and neck and that this pain radiates to the right upper extremity (Tr. 19–

21). See 20 C.F.R. §§ 404.1529(c)(3)(ii), 416.929(c)(3)(ii). The ALJ also discussed the type

of medication Plaintiff uses, noting that he tried a muscle relaxer with no relief and now

takes Tylenol for his pain (Tr. 19–20). See 20 C.F.R. §§ 404.1529(c)(3)(iv),

416.929(c)(3)(iv). Then the ALJ discussed the treatment Plaintiff receives—other than

medication—for relief of his pain, noting that he uses a TENs unit every other day and

received an epidural steroid injection (Tr. 19–20) See 20 C.F.R. §§ 404.1529(c)(3)(v),

416.929(c)(3)(v).

Considering this, Plaintiff has not shown that the ALJ ran afoul of the Eleventh

Circuit’s pain standard. See Holt, 921 F.2d at 1221. To the extent Plaintiff asks the Court

to re-weigh the evidence or substitute its opinion for that of the ALJ, it cannot. If the

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

evidence – as they are here – the Commissioner’s decision must be affirmed even if the

undersigned would have reached a different conclusion. See Bloodsworth, 703 F.2d at 1239.

On this record, the ALJ did not err in considering Plaintiff’s subjective complaints.

explanation as to why that is improper. Accordingly, the issue is deemed abandoned. See

Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 682 (11th Cir. 2019) (“Abandonment of

an issue can also occur when passing references appear in the argument section of an

opening brief, particularly when the references are mere ‘background’ to the appellant’s

main arguments or when they are ‘buried’ within those arguments.”); see also Whitmore v.

Soc. Sec. Admin., Comm’r, 855 F. App’x 641, 644 (11th Cir. 2021) (stating that it is “proper

for an administrative law judge to consider a claimant’s daily activities when they are

related to the claimant’s subjective pain”).

V. Conclusion

Accordingly, after consideration, it is hereby

ORDERED:

1. The decision of the Commissioner is affirmed.

2. The Clerk is directed to enter final judgment in favor of the Defendant and

close the case.

ORDERED in Tampa, Florida, on this Ist day of September, 2022.

“i

SEAN P. FLYNN

UNITED STATES MAGISTRATE JUDGE

18