Chestang v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

DONATA ROMELLE CHESTANG,

Plaintiff,

v. Case No.: 8:21-cv-482-MRM

COMMISSIONER OF SOCIAL

SECURITY,

Defendant.

/

OPINION AND ORDER

Plaintiff Donata Romelle Chestang filed a Complaint on March 1, 2021.

(Doc. 1). Plaintiff 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. The Commissioner filed the transcript of

the administrative proceedings (hereinafter referred to as “Tr.” followed by the

appropriate page number), and the parties filed separate memoranda detailing their

respective positions. (Docs. 16, 20, 25). For the reasons set forth herein, the

decision of the Commissioner is AFFIRMED pursuant to § 205(g) of the Social

Security Act, 42 U.S.C. § 405(g).

I. Social Security Act Eligibility

The law defines disability as the inability to do any substantial gainful activity

by reason of any medically determinable physical or mental impairment that can be

expected to result in death or that 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. The impairment must be severe, making the

claimant unable to do her previous work or any other substantial gainful activity that

exists in the national economy. 42 U.S.C. §§ 423(d)(2), 1382c(a)(3); 20 C.F.R. §§

404.1505 - 404.1511. Plaintiff bears the burden of persuasion through step four,

while the burden shifts to the Commissioner at step five. Bowen v. Yuckert, 482 U.S.

137, 146 n.5 (1987).

II. Procedural History

Plaintiff filed an application for a period of disability and disability insurance

benefits on July 17, 2018, alleging a disability onset date of May 31, 2018. (Tr. at

19).1 Plaintiff’s claim was denied initially on March 13, 2019, and upon

reconsideration on May 8, 2019. (Id.). Thereafter, Plaintiff requested a hearing

before an Administrative Law Judge (“ALJ”), and ALJ Carl C. McGhee held a

hearing on February 13, 2020. (Id. at 41-48; see also Tr. at 19). The ALJ issued an

unfavorable decision on July 14, 2020. (See id. at 19-29). The Appeals Council

subsequently denied Plaintiff’s request for review on January 6, 2021. (Id. at 1-3).

Plaintiff then filed her Complaint with this Court on March 1, 2021, (Doc. 1), and

1 The SSA revised the rules regarding the evaluation of medical evidence and

symptoms for claims filed on or after March 27, 2017. See Revisions to Rules

Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 5844-01, 5844 (Jan. 18,

2017). The new regulations apply in Plaintiff’s case because Plaintiff filed her claim

after March 27, 2017.

the parties consented to proceed before a United States Magistrate Judge for all

purposes, (Docs. 11, 13). The matter is, therefore, ripe for the Court’s review.

III. Summary of the Administrative Law Judge’s Decision

An ALJ must follow a five-step sequential evaluation process to determine if a

claimant has proven that she is disabled. Packer v. Comm’r of Soc. Sec., 542 F. App’x

890, 891 (11th Cir. 2013) (citing Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999)).

An ALJ must determine whether the claimant: (1) is performing substantial gainful

activity; (2) has a severe impairment; (3) has a severe impairment that meets or

equals an impairment specifically listed in 20 C.F.R. Part 404, Subpart P, Appendix

1; (4) can perform her past relevant work; and (5) can perform other work of the sort

found in the national economy. Phillips v. Barnhart, 357 F.3d 1232, 1237-40 (11th

Cir. 2004). The claimant has the burden of proof through step four and then the

burden shifts to the Commissioner at step five. Hines-Sharp v. Comm’r of Soc. Sec., 511

F. App’x 913, 915 n.2 (11th Cir. 2013).

The ALJ determined that Plaintiff meets the insured status requirements of the

Social Security Act through September 30, 2021. (Tr. at 21). At step one of the

sequential evaluation, the ALJ found that Plaintiff has not engaged in substantial

gainful activity since May 31, 2018, the alleged onset date. (Id.). At step two, the

ALJ determined that Plaintiff has the following severe impairments: “obesity;

multiple sclerosis/other specified disorders involving the immune mechanism;

osteopenia; transverse myelitis; spondylosis; chronic pain syndrome; myalgia;

lumbago; and degenerative changes of the cervical spine (20 [C.F.R. §]

404.1520(c)).” (Id.).

At step three, the ALJ determined that Plaintiff “does not have an impairment

or combination of impairments that meets or medically equals the severity of one of

the listed impairments in 20 [C.F.R.] Part 404, Subpart P, Appendix 1 (20 [C.F.R.

§§] 404.1520(d), 404.1525[,] and 404.1526).” (Id. at 23).

At step four, the ALJ found that Plaintiff has the residual functional capacity

(“RFC”):

[T]o lift and/or carry 20 pounds occasionally and 10

pounds frequently; sit for 6 hours in an 8-hour day; and

stand and/or walk for 6 hours in an 8-hour day. The

claimant requires a sit/stand option with an alternating

interval of one to two hours. She can occasionally reach

above shoulder level with the right arm, and frequently

reach above shoulder level with the left arm. She can

constantly reach waist to chest with both arms, push and/or

pull with the upper extremities, and handle, finger, and feel

with both hands. The claimant cannot climb ladders and

scaffolds, balance, kneel, crouch, or crawl. She can

occasionally stoop and climb ramps and stairs. The

claimant cannot work around high, exposed places;

moving, mechanical parts; humidity and wetness;

pulmonary irritants; extreme cold; extreme heat; or

vibrations.

(Id. at 25). The ALJ also determined that Plaintiff “is capable of performing past

relevant work as a Medical Clerk, Sales Agent, Financial, and Administrative Clerk.

This work does not require the performance of work-related activities precluded by

the claimant’s [RFC] (20 [C.F.R. §] 404.1565).” (Id. at 28).

For those reasons, the ALJ held that Plaintiff “has not been under a disability,

as defined in the Social Security Act, from May 31, 2018, through the date of this

decision (20 [C.F.R. §] 404.1520(f)).” (Id. at 29).

IV. Standard of Review

The scope of this Court’s review is limited to determining whether the ALJ

applied the correct legal standard, McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir.

1988), and whether the findings are supported by substantial evidence, Richardson v.

Perales, 402 U.S. 389, 390 (1971). The Commissioner’s findings of fact are

conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial

evidence is more than a scintilla—i.e., the evidence must do more than merely create

a suspicion of the existence of a fact, and must include such relevant evidence as a

reasonable person would accept as adequate to support the conclusion. Foote v.

Chater, 67 F.3d 1553, 1560 (11th Cir. 1995) (citing Walden v. Schweiker, 672 F.2d 835,

838 (11th Cir. 1982); Richardson, 402 U.S. at 401).

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, 67 F.3d at 1560; accord Lowery v. Sullivan,

979 F.2d 835, 837 (11th Cir. 1992) (a court must scrutinize the entire record to

determine reasonableness of factual findings).

V. Analysis

On appeal, Plaintiff raises three issues. As stated by Plaintiff, the issues are:

1. The ALJ’s analysis of the medical opinion is contrary to Agency

authority and Eleventh Circuit precedent;

2. The ALJ’s credibility assessment is generally defective because of

the above error and specifically so because of his failure to consider

Plaintiff’s strong work history in his assessment; and

3. The decision in this case, by an ALJ and Appeals Council AAJ

deriving their authority from the Commissioner who was not

constitutionally appointed, is constitutionally defective, requiring

remand.

(Doc. 16 at 3, 17, 19). The Court finds it appropriate to address the issues in a more

logical order. Accordingly, the Court first addresses Plaintiff’s third issue – whether

the decision here is constitutionally defective, requiring remand. Next, the Court

considers Plaintiff’s first issue – whether the ALJ erred in his assessment of the

medical opinion evidence. Finally, the Court will consider Plaintiff’s second issue –

whether the ALJ erred in completing a subjective symptom determination.

A. Whether 42 U.S.C. § 902(a)(3) Necessitates a Rehearing.

Removal of the Commissioner of Social Security is governed by 42 U.S.C.

§ 902(a)(3), (the “removal provision”). Under § 902(a)(3), the SSA’s Commissioner

is appointed to a six-year term and may not be removed from office by the President

without a showing of cause. See 42 U.S.C. § 902(a)(3).

Plaintiff essentially argues that the § 902(a)(3) removal provision provides

unconstitutional tenure protection to the Commissioner of the SSA, violates the

separation of powers, and, therefore, the SSA’s structure is constitutionally invalid.

(See Doc. 16 at 19-21 (citing 42 U.S.C. § 902(a)(3); Seila L. LLC v. Consumer Fin. Prot.

Bureau, 140 S. Ct. 2183 (2020))). To that end, Plaintiff impliedly asserts that

Commissioner Andrew Saul was subject to the removal provision’s allegedly

unconstitutional tenure protection and, thus, any actions taken by him or pursuant to

his authority were unconstitutional. (See id.). For example, Plaintiff argues that,

because Commissioner Saul delegated his authority to the ALJ who issued a decision

in Plaintiff’s case and to the Appeals Council Judges, Plaintiff’s claim was

adjudicated by individuals who “had no lawful authority to do so.” (See id. at 20-21

(citations omitted)). Plaintiff also asserts that her claim was decided under “a

presumptively inaccurate legal standard” because Commissioner Saul issued

regulations under which Plaintiff’s application was decided. (Id. at 20).

The Commissioner “agree[s] that 42 U.S.C. § 902(a)(3) violates the separation

of powers to the extent it is construed as limiting the President’s authority to remove

the Commissioner without cause,” (Doc. 20 at 13 (emphasis added) (citing

Constitutionality of the Commissioner of Social Security’s Tenure Protection, 45 Op.

O.L.C. ----, 2021 WL 2981542 (July 8, 2021))), but disagrees that the removal

provision necessitates a remand of Plaintiff’s case, (id. at 14 (citation omitted)).

Specifically, the Commissioner contends that Plaintiff cannot show a nexus between

42 U.S.C. § 902(a)(3)’s removal provision and any alleged harm suffered by Plaintiff.

(See id. at 15-26 (citing Collins v. Yellen, 141 S. Ct. 1761 (2021); Lucia v. S.E.C., 138 S.

Ct. 2044 (2018); Decker Coal Co. v. Pehringer, 8 F.4th 1123 (9th Cir. 2021))).

The Commissioner raises two arguments in support of this contention. First,

the Commissioner argues that because ALJ McGhee served under a ratification of

his appointment by former Acting Commissioner Nancy Berryhill, there was no

connection between ALJ McGhee’s decision and the removal provision. (See id. at

16-18 (citations omitted)). Because Acting Commissioner Berryhill was not subject

to any tenure protection under 42 U.S.C. § 902(a)(3), the Commissioner asserts that

any potential nexus between the removal provision and the decision in Plaintiff’s

case was severed. (See id.). Second, even if Plaintiff’s case were decided under the

authority of a Commissioner subject to the removal provision, the Commissioner

argues that Plaintiff “cannot show that the removal restriction ‘inflict[ed]

compensable harm’ on her.” (Id. at 18-22 (alteration in original) (citing Collins, 141

S. Ct. at 1789)).

The Commissioner next argues that Plaintiff’s rehearing request should be

denied under the harmless error doctrine, (id. at 23 (citations omitted)), the de facto

officer doctrine, (id. at 24 (citations omitted)), the rule of necessity (id. at 24-25

(citations omitted)), and broad prudential considerations, (id. at 25-26 (citations

omitted)).

By way of reply, Plaintiff addresses several arguments posited by Defendant.

(See Doc. 25 at 1-10). First, Plaintiff asserts that she “has standing to bring this

action” because she “sustained a sufficient injury [when she] receive[d] an adverse

determination on his [sic] disability claim from both the Commissioner’s ALJ and

the [Appeals Council],” despite that the ALJ and Appeals Council “had no valid

delegation of authority to issue rulings.” (Id. at 2-3). Second, Plaintiff reiterates her

argument that under Collins v. Yellen, 141 S. Ct. 1761, 1778-89 (2021), the removal

restriction at issue is unconstitutional and implicates separations of powers. (Id. at 3-

4 (citations omitted)). Third, Plaintiff argues that the Commissioner “fail[ed] to

respond to h[er] assertions on the illicit actions of the [Appeals Council],” and,

therefore, the Court should remand by finding that the Commissioner abandoned the

issue. (See id. at 4-6 (citations omitted)). Fourth, Plaintiff argues that the

Commissioner cannot rely on the fact that the ALJ “was properly appointed by an

Acting Commissioner,” because “[t]he ALJs [sic] or [Appeals Council] judge’s

appointment is entirely distinct from their exercise of authority.” (Id. at 6). Fifth,

Plaintiff argues that she need not show either causation or harm because when

“government actors exercis[e] power they d[o] not lawfully possess, . . . causation

and harm should be presumed.” (Id. at 6-7 (citations omitted)). Sixth, Plaintiff

contends that harmless error cannot apply in this case. (Id. at 8). Seventh, Plaintiff

argues that the de facto officer doctrine does not apply to basic constitutional

protections. (Id. (citations omitted)). Eighth, Plaintiff asserts that the rule of

necessity should not apply because any necessity was caused by the government’s

own unconstitutional behavior. (Id. at 9). Finally, Plaintiff argues that the

Commissioner’s “broad prudential concerns” argument lacks merit and “is merely

SSA’s invitation to this Court to make up law where none exists.” (See id. (citations

omitted)).

On June 29, 2020, in Seila Law LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct.

2183 (2020), the United States Supreme Court held that a “for-cause” removal

restriction on the President’s executive power to remove the Consumer Financial

Protection Bureau’s (“CFPB”) director violated constitutional separation of powers,

but that the removal provision was severable such that the other provisions relating

to the CFPB’s structure and duties “remained fully operative without the offending

tenure restriction.” Seila L. LLC, 140 S. Ct. at 2209 (citing Free Enter. Fund v. Pub. Co.

Acct. Oversight Bd., 561 U.S. 477, 509 (2010)).

Thereafter, on June 23, 2021, in Collins v. Yellen, 141 S. Ct. 1761 (2021), the

United States Supreme Court held that the Federal Housing Finance Agency

(“FHFA”) director’s statutory for-cause removal protection was similarly

unconstitutional. Collins, 141 S. Ct. at 1783. The Court also distinguished the

unconstitutional removal provision in Collins from similar appointment provisions,

see, e.g., Lucia v. S.E.C., 138 S. Ct. 2044 (2018), noting that:

All the officers who headed the FHFA during the time in

question were properly appointed. Although the statute

unconstitutionally limited the President’s authority to

remove the confirmed Directors, there was no constitutional

defect in the statutorily prescribed method of appointment

to that office. As a result, there is no reason to regard any

of the actions taken by the FHFA [challenged on appeal] as

void.

Id. at 1787 (emphasis in original). The Court did not, however, rule out the potential

that an unconstitutional removal provision could “inflict compensable harm.” Id. at

1788-89. To that point, the Collins Court listed examples of how compensable harms

might be identified, stating:

Suppose, for example, that the President had attempted to

remove a Director but was prevented from doing so by a

lower court decision holding that he did not have “cause”

for removal. Or suppose that the President had made a

public statement expressing displeasure with actions taken

by a Director and had asserted that he would remove the

Director if the statute did not stand in the way. In those

situations, the statutory provision would clearly cause

harm.

Id.

In this matter, the Commissioner agrees with Plaintiff that 42 U.S.C.

§ 902(a)(3) is unconstitutional because it violates the separation of powers. (Doc. 20

at 13 (citing Constitutionality of the Commissioner of Social Security’s Tenure

Protection, 45 Op. O.L.C. ----, 2021 WL 2981542 (July 8, 2021))). However, despite

the parties’ agreement, the Court need not determine the constitutionality of 42

U.S.C. § 902(a)(3)’s removal provision. In short, even assuming arguendo that the

removal provision is unconstitutional, it would not necessitate a rehearing of

Plaintiff’s claim because the provision is severable and there is no evidence to suggest

a nexus between the removal provision and a compensable harm to Plaintiff.

Accordingly, the Court assesses whether the removal provision necessitates a

rehearing of Plaintiff’s claim, assuming arguendo that the provision is

unconstitutional.

Plaintiff essentially contends that the allegedly unconstitutional nature of

section 902(a)(3) automatically voids the Social Security Administration’s decision in

this case. (See Docs. 16 at 19-21; 25 at 1-10). On the other hand, the Commissioner

raises a host of arguments as to why Plaintiff’s rehearing request should be denied.

(See Doc. 20 at 13-26).

Here, the Court agrees with the Commissioner’s arguments and finds a

rehearing is not required based solely on the allegedly unconstitutional removal

provision for two reasons: (1) the removal provision is severable from the remainder

of the Social Security Act; and (2) Plaintiff has failed to show how the allegedly

unconstitutional removal provision harmed her.

In the first place, the Court finds that the Commissioner did not abandon or

waive her argument as to the Appeal Council’s decision. In her motion, Plaintiff

includes a singular reference to the constitutionality of the Appeals Council’s

decision by perfunctorily stating, “[a]ll this is just as true with respect to SSA’s

Appeals Council judges.” (Doc. 16 at 20; see generally Doc. 16). Notably, this

statement is neither supported by citations to relevant authority nor persuasive

argument. (See Doc. 16). Thus, if anything, Plaintiff failed to sufficiently raise a

challenge to the constitutionality of the Appeals Council’s decision, such that her is

waived. See N.L.R.B. v. McClain of Georgia, Inc., 138 F.3d 1418, 1422 (11th Cir. 1998)

(“Issues raised in a perfunctory manner, without supporting arguments and citation

to authorities, are generally deemed to be waived.”); Jacobus v. Comm’r of Soc. Sec.,

664 F. App’x 774, 777 n.2 (11th Cir. 2016) (finding that a plaintiff’s perfunctory

argument was abandoned). In any event, the Court considers Plaintiff’s arguments

as to both the ALJ and the Appeals Council below.

The Court in Seila Law noted that “one section of a statute may be repugnant

to the Constitution without rendering the whole act void.” See Seila L. LLC, 140 S.

Ct. at 2208. Based on this principle, the Court is not persuaded by Plaintiff’s broad

argument that 42 U.S.C. § 902(a)(3)’s removal provision divests the Commissioner of

all authority under the Social Security Act or renders all of the Commissioner’s

actions “presumptively inaccurate.” (See Doc. 16 at 19-21). Rather, like the

offending provision in Seila Law, the Court finds that 42 U.S.C. § 902(a)(3) can be

severed from the remainder of the Act because the SSA can continue to fully

function without the presence of the allegedly unconstitutional provision. See Seila L.

LLC, 140 S. Ct. at 2209; see also Tibbetts v. Comm’r of Soc. Sec., No. 2:20-cv-872-SPC-

MRM, 2021 WL 6297530, at *5 (M.D. Fla. Dec. 21, 2021), report and recommendation

adopted, 2022 WL 61217 (M.D. Fla. Jan. 6, 2022) (citations omitted) (finding that

remand based on the allegedly unconstitutional nature of 42 U.S.C. § 902(a)(3) is

unwarranted based, in part, on its severability from the remainder of the Act). Thus,

the Court finds that remand for a rehearing on this issue is not warranted.

Moreover, while the Collins Court recognized the potential that an

unconstitutional removal provision could “inflict compensable harm,” see Collins, 141

S. Ct. at 1788-89, the Court has found no evidence suggesting that there is a

connection between the removal provision and any possible harm to Plaintiff. For

example, Plaintiff has not shown that the President could not remove Mr. Saul as a

result of the alleged unconstitutional tenure, undermining the existence of a nexus

between the provision and the unfavorable decision. Plaintiff fails to show that

absent the alleged unconstitutional provision, Plaintiff’s claim would have been

decided differently at either the ALJ or the Appeals Council level. Indeed, Plaintiff

has pointed to no portion of either the ALJ’s decision or the decision of the Appeals

Council that she contends would have been decided differently but for the alleged

unconstitutional provision. Finally, Plaintiff’s claim was adjudicated by an ALJ

whose tenure was ratified by former Acting Commissioner Berryhill. Because former

Acting Commissioner Berryhill was not subject to 42 U.S.C. § 902(a)(3)’s tenure

protection, any argument that a nexus exists between § 902(a)(3) and a compensable

harm to Plaintiff is further strained.

Furthermore, while the United States Supreme Court has not addressed this

issue directly, Justice Kagan forecasted its outcome in Collins:

[T]he majority’s approach should help protect agency

decisions that would never have risen to the President’s

notice. Consider the hundreds of thousands of decisions

that the [SSA] makes each year. The SSA has a single head

with for-cause removal protection; so a betting person might

wager that the agency’s removal provision is next on the

chopping block . . . [b]ut given the majority’s remedial

analysis, I doubt the mass of SSA decisions—which would

not concern the President at all—would need to be undone.

That makes sense. . . . When an agency decision would not

capture a President’s attention, his removal authority could

not make a difference—and so no injunction should issue.

See id. at 1802 (Kagan, J., concurring). Justice Kagan’s reasoning supports the

Court’s conclusion that there is no evidence in the instant case to suggest that a

nexus exists between § 902(a)(3) and any compensable harm to Plaintiff.

For these reasons, even assuming arguendo that 42 U.S.C. § 902(a)(3)’s

removal provision is unconstitutional, the Court finds that the removal provision

does not necessitate remand or a rehearing of Plaintiff’s claim. See Seila L. LLC, 140

S. Ct. 2183; Collins, 141 S. Ct. 1761; see also Tibbetts, 2021 WL 6297530, at *5, report

and recommendation adopted, 2022 WL 61217 (holding that remand based on the

allegedly unconstitutional nature of 42 U.S.C. § 902(a)(3) is unwarranted); Perez-

Kocher v. Comm’r of Soc. Sec., No. 6:20-cv-2357-GKS-EJK, 2021 WL 6334838, at *4

(M.D. Fla. Nov. 23, 2021) (finding that a plaintiff had failed to state a claim upon

which relief could be granted because the plaintiff could not establish that the Acting

Commissioner’s unconstitutional tenure protection caused compensable harm).

B. Whether the ALJ Properly Considered the Evidence in

Determining Plaintiff’s RFC.

Plaintiff argues that the ALJ erred in his assessment of the medical evidence of

record. (See Doc. 16 at 3-16). Plaintiff contends that the ALJ erred in his assessment

of the RFC in two ways: first, he failed to properly consider the limitations imposed

by Plaintiff’s mental impairments and, second, he failed to appropriately determine

the persuasiveness of Dr. Weisman’s medical opinion. (See id.). More precisely,

Plaintiff argues that the ALJ erred by (1) failing to include any mental limitations in

the RFC when “every medical source concluded that [Plaintiff exhibited] some level

of compromised mental ability,” (see id. at 7-8 (citing Tr. at 58-61, 783, 787, 789)),

(2) failing to consider Plaintiff’s “mental limitations related to pain,” (see id. at 8-9

(citing Tr. at 783)), (3) failing to include mental limitations in the RFC despite

finding that Plaintiff exhibited “mild” limitations in three paragraph B mental

functioning areas, (id. at 8-11 (citing Tr. at 22, 58-61, 787, 789)), and (4) improperly

considering the consistency and supportability of Dr. Weisman’s medical opinion,

(id. at 11-16 (citations omitted)).

In response, the Commissioner contends that substantial evidence supports the

ALJ’s RFC finding and his consideration of the medical evidence. (See Doc. 20 at 5-

10). Accordingly, Defendant argues that substantial evidence supports the ALJ’s

decision. (See id.).

Because Plaintiff essentially raises two distinct issues, the Court considers each

of Plaintiff’s arguments in turn below and finds: (1) the ALJ properly considered

Plaintiff’s mental impairments; and (2) the ALJ properly assessed the persuasiveness

of Dr. Weisman’s medical opinion.

1. The ALJ Properly Considered Plaintiff’s Mental Impairments.

Where a claimant has a “colorable claim of mental impairment,” the ALJ

must complete a Psychiatric Review Technique Form, (“PRTF”). Moore v. Barnhart,

405 F.3d 1208, 1213 (11th Cir. 2005). In completing the PRTF, the ALJ must

evaluate how a claimant’s mental impairment impacts four broad functional areas,

(the “paragraph B criteria”): “Understand, remember, or apply information; interact

with others; concentrate, persist, or maintain pace; and adapt or manage oneself.”

20 C.F.R. § 404.1520a(c)(3). The ALJ will rate the degree of limitation in each of

these areas using the following five-point scale: “None, mild, moderate, marked,

and extreme.” 20 C.F.R. § 404.1520a(c)(4). If the ALJ finds the degree of limitation

in each of the functional areas as “none” or “mild,” then the ALJ will generally

conclude that the mental impairment is not severe and causes no more than a

minimal limitation in the claimant’s ability to do basic work activities. 20 C.F.R.

§ 404.1520a(d)(1).

The limitations identified in the paragraph B criteria are used to rate the

severity of mental impairments at step two and step three of the sequential evaluation

process for the purpose of determining whether mental impairments are severe. See

20 C.F.R. § 404.1520a. The evaluation of the paragraph B criteria is not a

determination of the claimant’s mental residual functional capacity, as that

determination “requires a more detailed assessment.” Schink v. Comm’r of Soc. Sec.,

935 F.3d 1245, 1269 (11th Cir. 2019).

A claimant’s RFC reflects what the claimant can still do in a work setting

despite her impairments. 20 C.F.R. § 404.1545(a). It consists of a claimant’s

“impairment(s), and any related symptoms, such as pain, [that] may cause physical

and mental limitations that affect what [a claimant] can do in a work setting.” 20

C.F.R. § 404.1545(a). An ALJ will “assess and make a finding about [the claimant’s

RFC] based on all the relevant medical and other evidence.” 20 C.F.R.

§§ 404.1520(e), 404.1545(a)(1), (3). Put differently, the ALJ must consider all of a

claimant’s medically determinable impairments, including those that are non-severe.

20 C.F.R. § 404.1545(a)(2); Schink, 935 F.3d at 1268. “The ALJ makes this

determination by considering a claimant’s physical, mental, and other abilities

affected by the impairment.” Schink, 935 F.3d at 1268 (citing 20 C.F.R.

§ 404.1545(b)-(d)). If a claimant has a limited ability to carry out certain mental

actions, such limitations may reduce a claimant’s ability to do work. Id. “If an ALJ

fails to address the degree of impairment caused by the combination of physical and

mental medical problems, the decision that the claimant is not disabled cannot be

upheld.” Id. at 1269 (citation omitted).

Here, the Court is not persuaded that the ALJ erred by failing to include

mental limitations in the RFC.

At step two of the sequential evaluation, the ALJ found that Plaintiff’s

medically determinable mental impairments of anxiety and depression were non-

severe as they “do not cause more than minimal limitation in [Plaintiff’s] ability to

perform basic mental work activities.” (Tr. at 22). In reaching this conclusion, the

ALJ found “mild” limitations in three of the four paragraph B criteria –

understanding, remembering, or applying information, concentrating, persisting, or

maintaining pace, and adapting or managing oneself – and “no limitation” in the

remaining paragraph B criterion – interacting with others. (Id.). Despite finding

mild limitations at step two, the ALJ included no mental limitations in the RFC. (Id.

at 25).

Plaintiff argues that the failure to include mental functional limitations in the

RFC constituted error because the “mild” limitations in the paragraph B criteria

required the ALJ to include mental limitations in the RFC. (See Doc. 16 at 8-11).

The Court disagrees. Rather, it appears that Plaintiff conflates (1) limitations in the

paragraph B criteria, see 20 C.F.R. § 404.1520a, with (2) limitations in a claimant’s

RFC, see 20 C.F.R. § 404.1545. The limitations in the paragraph B criteria help the

ALJ determine the severity of a claimant’s mental impairments or whether a

claimant meets a listing, while limitations in the RFC help the ALJ determine the

level of work that a claimant can perform. Compare 20 C.F.R. § 404.1520a, with 20

C.F.R. § 404.1545. Plaintiff has provided no authority suggesting that the two are

the same or that an ALJ must include mental limitations in the RFC on finding

“mild” limitations in the paragraph B criteria.

To the contrary, the persuasive precedent demonstrates that ALJs are not

obligated to include mental limitations in the RFC even when they find “mild”

limitations while completing a PRTF. See Williams v. Soc. Sec. Admin., 661 F. App’x

977, 979-80 (11th Cir. 2016) (finding that the ALJ did not err by failing to include

limitations in the RFC related to the plaintiff’s non-severe mental impairment when

the ALJ found that the plaintiff had only “mild” limitations in the paragraph B

criteria); Medwit v. Comm’r of Soc. Sec., No. 2:20-cv-143-JLB-NPM, 2021 WL

1341390, at *5 (M.D. Fla. Feb. 22, 2021) (“Since the ALJ only assessed ‘mild’

limitations in the four areas of mental functioning, the ALJ did not err by not

providing a mental RFC.”), report and recommendation adopted, 2021 WL 1138179

(M.D. Fla. Mar. 25, 2021); Bryant v. Comm’r of Soc. Sec., No. 2:20-cv-294-JLB-NPM,

2021 WL 4067464, at *11 (M.D. Fla. July 29, 2021) (“[T]he ALJ found mild

limitations in all four functional areas[, but] did not err in failing to include

[functional] limitations in the RFC related to [the plaintiff’s] depression, anxiety,

bipolar disorder, or insomnia.”), report and recommendation adopted, 2021 WL 3855941

(M.D. Fla. Aug. 30, 2021); Sprague v. Colvin, No. 8:13-cv-576-T-TGW, 2014 WL

2579629, at *6 (M.D. Fla. June 9, 2014) (“[T]he plaintiff’s assertion that the ‘mild’

findings meant he had some mental functional limitation is unpersuasive.”); Eutsay v.

Kijakazi, No. 21-21164-CV, 2022 WL 1609088, at *9 (S.D. Fla. May 4, 2022)

(finding that the ALJ was not required to include mental RFC limitations despite

finding “mild” limitations in the paragraph B criteria), report and recommendation

adopted, 2022 WL 1605318 (S.D. Fla. May 20, 2022).

Additionally, the Court finds that the ALJ expressly considered the evidence

identified by Plaintiff in support of her mental impairments. (Compare Tr. at 27-28

(citing Tr. at 51-63, 782-83, 786-88), with Doc. 16 at 6-8 (citing Tr. at 58-61, 783, 787,

789)).

Specifically, Plaintiff first highlights Dr. Weisman’s January 21, 2020 Medical

Source Statement in which Dr. Weisman marked “Yes” under the question: “would

you expect the increase in pain to be to such an extent that it would cause serious

distraction from job tasks and/or result in a failure to complete job tasks in a timely

manner . . . ?” (Doc. 16 at 6, 8-9 (citing Tr. at 782-83)). However, the ALJ

specifically considered this opinion and found it unpersuasive, noting that “the

extreme limitations provided by Dr. Weisman are not consistent with or supported

by the record as a whole.” (Tr. at 28 (citing Tr. at 782-83)). In support of his

finding, the ALJ highlighted that “the record shows [Plaintiff] regularly presented at

her office visits as alert and oriented with normal mood and affect, and in no acute

distress.” (Id. (citing Tr. at 363, 368, 396-97, 399, 421, 440, 448-49, 499, 504-05, 510,

516-17, 520, 526, 537-38, 541-43, 786-88)). Indeed, upon an independent review of

the record, the Court notes that Plaintiff was routinely reported as alert and in no

acute distress, oriented to time, place, and person, and having a normal mood and

affect in her physical exams, mental status exams, and neurological exams. (See id.

at 363, 368, 396, 399, 421, 442, 448-49, 499, 504-05, 510, 516-17, 520, 537, 541-42,

787). Accordingly, the Court is not persuaded that the ALJ erred in his

consideration of Dr. Weisman’s medical opinion as it related to Plaintiff’s mental

impairments.2

Similarly, the Court finds that the ALJ appropriately considered the State

agency medical consultants’ and Dr. Higdon’s findings on Plaintiff’s mental

impairments. (See id. at 28 (citing Tr. at 51-63, 66-80, 785-89)). As to the State

agency medical consultants’ findings, the ALJ found the opinions only partially

persuasive as the consultants did not have a chance to review the entire record. (Id.).

In fact, the ALJ assessed greater mental limitations in the paragraph B criteria than

those proposed by the State agency consultants. (Compare id. at 22, with id. at 58, 74).

2 To the extent that Plaintiff argues the ALJ overlooked functional limitations

caused by Plaintiff’s pain, as addressed below, the Court finds that the ALJ’s findings

that (1) Dr. Weisman’s medical opinion on Plaintiff’s pain was not persuasive and

(2) Plaintiff’s subjective complaints of pain were not entirely consistent with the

medical evidence of record are supported by substantial evidence.

Moreover, as to mental limitations in Plaintiff’s RFC, State agency psychologist Dr.

Culpepper noted that Plaintiff’s functional limitations appeared to be due to her

physical impairments rather than her mental impairments. (See id. at 58). As for Dr.

Higdon’s findings, the ALJ specifically considered that Plaintiff “was slow to follow

instructions and required repetition,” but also “was alert, with good eye contact and

fluent speech, . . . and was cooperative, but gave inconsistent effort during the

examination.” (Id. at 27 (citing Tr. at 785-89)).

Accordingly, Plaintiff has failed to identify any relevant evidence that the ALJ

failed to sufficiently address in the RFC determination. Thus, Plaintiff fails to meet

her burden to prove that her mental impairments, whether severe or not severe,

would have caused additional limitations in her ability to work or prevented her from

performing her past relevant work. See Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th

Cir. 2003).

Moreover, upon a review of the ALJ’s decision, the Court finds that

substantial evidence supports the ALJ’s determination that Plaintiff’s mental health

impairments did not cause any work-related RFC limitations. For example, during

the RFC assessment, the ALJ considered Plaintiff’s own testimony, in which she

attested to the pain that she experiences and its effects. (Tr. at 25-26). The ALJ also

considered the objective medical evidence of record in which Plaintiff was routinely

reported as alert and in no acute distress, oriented to time, place, and person, and

having a normal mood and affect in her physical exams, mental status exams, and

neurological exams. (See id. at 26-28 (citing Tr. at 363, 368, 396, 399, 421, 442, 448-

49, 499, 504-05, 510, 516-17, 520, 537, 541-42, 787)). Moreover, the ALJ found the

State agency consultants’ opinions – that Plaintiff’s mental impairment was non-

severe and she only exhibited mild limitations in the paragraph B criteria – partially

persuasive. (Id. at 28 (citing Tr. at 51-63, 66-80)).

The ALJ found that Plaintiff had medically determinable impairments of

anxiety and depression; however, the ALJ also noted that they “do not cause more

than minimal limitation in [Plaintiff’s] ability to perform basic mental work

activities.” (Id. at 22). The ALJ based this finding on several factors, including:

(1) the objective evidence of record showing that Plaintiff exhibited normal mental

status findings; (2) Dr. Higdon’s consultative examination stating that Plaintiff was

alert, had good eye contact and fluent speech, had clear thought processes, had

normal memory and good concentration, and was oriented to time, place, and

person, but that Plaintiff also gave inconsistent effort during the examination; (3) Dr.

Weisman’s records showing that Plaintiff regularly presented at office visits as alert

and oriented, with normal mood and affect, and in no acute distress; and (4) the

State agency medical consultants’ findings that Plaintiff’s functional limitations

appeared to be due to her physical impairments rather than her mental impairments.

(See id. at 22-28 (citing Tr. at 51-63, 66-80, 363, 368, 396, 399, 421, 442, 448-49, 499,

504-05, 510, 516-17, 520, 537, 541-42, 785-89)). Further, upon an independent

review of the record, the Court has found no other evidence supporting Plaintiff’s

argument that she experiences functional limitations based on her mental

impairments.

In sum, because the ALJ properly determined the severity of the Plaintiff’s

mental impairments and the record supports the ALJ’s finding that Plaintiff’s mental

conditions did not limit her ability to perform work related activities, the ALJ’s

decision is supported by substantial evidence. Thus, the Court finds that the ALJ did

not err in determining Plaintiff’s RFC. Accordingly, the ALJ’s decision is due to be

affirmed as to this sub-issue.

2. The ALJ Properly Assessed the Persuasiveness of

Dr. Weisman’s Medical Opinion.

The Social Security Administration revised its regulations regarding the

consideration of medical evidence, with those revisions applicable to all claims filed

after March 27, 2017. See 82 Fed. Reg. 5844-01, 2017 WL 168819 (Jan. 18, 2017).

Because Plaintiff filed her claim on July 17, 2018, (Tr. at 19), the revised regulations

apply, see 20 C.F.R. § 404.1520c. The regulations require that an ALJ apply the

same factors in considering opinions from all medical sources, rather than afford

specific evidentiary weight to certain sources’ opinions. 20 C.F.R.

§ 404.1520c(a). In contrast, under Eleventh Circuit precedent, the “treating source

rule” requires the ALJ to afford “[t]he opinion of a treating physician . . . substantial

or considerable weight unless ‘good cause’ is shown to the contrary.” Phillips, 357

F.3d at 1240 (citing Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997)).

However, the Eleventh Circuit recently held in a published opinion that the Social

Security Administration’s 2017 revised regulations abrogate the Eleventh Circuit’s

treating source rule. See Harner v. Soc. Sec. Admin., Comm’r, No. 21-12148, 2022 WL

2298528, at *2 (11th Cir. June 27, 2022). Accordingly, the revised regulations, rather

than the Eleventh Circuit’s treating source rule, apply in this action. See id.

Under the revised regulations, 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).

Supportability and consistency constitute the most important factors in any

evaluation, and the ALJ must explain how those two factors are considered. See 20

C.F.R. § 404.1520c(b)(2). 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

themselves do not require the ALJ to explain the consideration of each opinion from

the same source. 20 C.F.R. § 404.1520c(b)(1). The regulations state:

[W]hen a medical source provides multiple medical

opinion(s) or prior administrative medical finding(s), we

will articulate how we considered the medical opinions or

prior administrative medical findings from that medical

source together in a single analysis using the factors listed

in paragraphs (c)(1) through (c)(5) of this section, as

appropriate. We are not required to articulate how we

considered each medical opinion or prior administrative

medical finding from one medical source individually.

20 C.F.R. § 404.1520c(b)(1).

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. See 20 C.F.R. § 404.1520c(c)(1)-(2). Put differently, the ALJ’s analysis

considers 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 (M.D. Fla. Apr. 21,

2021).

When the Commissioner’s decision is supported by substantial evidence, the

Court will affirm, even if the Court would have reached a contrary result as the ALJ

and even if the Court finds that “the evidence preponderates against” the

Commissioner’s decision. See Edwards, 937 F.2d at 584 n.3.

Here, Plaintiff argues that the ALJ erred in his evaluation of persuasiveness of

Dr. Weisman’s opinion. (See Doc. 16 at 11-16). In response, the Commissioner

contends that the ALJ properly found that Dr. Weisman’s opinion is neither

supported by his own findings nor consistent that the other evidence of record. (See

Doc. 20 at 8-10).

Dr. Weisman’s medical opinion, a Medical Source Statement signed on

January 21, 2020, explains that: (1) Dr. Weisman has treated Plaintiff since

February 19, 2019; (2) Plaintiff suffers from “Chronic Low Back Pain, thoracic pain,

[and] Chronic Neck Pain;” and (3) Plaintiff can only perform work at a less than

sedentary level, will struggle to focus at work because of her pain, and will miss more

than two days of work per month. (See Tr. at 782-83). In considering the

persuasiveness of Dr. Weisman’s opinion, the ALJ found that “the extreme

limitations provided by Dr. Weisman are not consistent with or supported by the

record as a whole, including his own treatment notes.” (Id. at 28). The ALJ then

provided examples of evidence inconsistent with and unsupportive of Dr. Weisman’s

opinion. (Id.).

In assessing the supportability of the opinion, the ALJ found the opinion to be

unsupported by Dr. Weisman’s objective findings, including: (1) Dr. Weisman’s

record from the first office visit with Plaintiff on February 19, 2019, which notes that

Plaintiff presented as alert and oriented with normal mood and affect, in no acute

distress, and a current pain level of seven out of ten, but also reported that Plaintiff

“is receiving greater than 50% analgesic benefit with significant improvement in both

pain and function with the use of the medication,” (id. (citing Tr. at 419-23)); (2) a

March 19, 2019 record noting that Plaintiff experienced pain relief of over 50% with

current medications, presented as alert and oriented with normal mood and affect,

and in no acute distress, and, while not considered by the ALJ, reported that she

started physical therapy and “plann[ed] to go to a trip to LA on April 3,” (id. (citing

Tr. at 446-49); Tr. at 446); (3) an April 22, 2019 record noting that Plaintiff

“report[ed] approximately 90% [temporary] improvement of her prior pain

complaints for over one week following [initial medial branch nerve block

injections],” experienced pain relief of over 50% with current medications, and

presented as alert and oriented with normal mood and affect, and in no acute

distress, (id. (citing Tr. at 440-43)); (4) a May 13, 2019 record noting that Plaintiff

reported “greater than 85% relief,” the ability to be active and “participate in her

daughter’s recent wedding,” the ability to do light housework at home,” and

presented as alert and oriented with normal mood and affect, and in no acute

distress, (id. (citing Tr. at 518-21)); (5) a July 16, 2019 record noting that Plaintiff

reported greater than 80% symptomatic improvement with a “gradual return of prior

right and left lumbar pain,” and presented as alert and oriented with normal mood

and affect, and in no acute distress, (id. (citing Tr. at 514-17)); (6) an August 8, 2019

record noting that Plaintiff received temporary relief from a July 26, 2019 treatment,

reported “greater than 50% analgesic benefit with significant improvement in both

pain and function with the use of medication,” conveyed an interest “in more

definitive treatment . . . in the form of RFA,” and presented as alert and oriented

with normal mood and affect, and in no acute distress, (id. (citing Tr. at 508-11));

(7) a September 12, 2019 record noting that Plaintiff received treatment on August

29, 2019, and “report[ed] greater than 80% improvement . . . [with] some residual

pain[, despite being] pleased with the perceived benefit from the [August 29, 2019

treatment],” and presented as alert and oriented with normal mood and affect, and in

no acute distress, (id. (citing Tr. at 502-05)); and (8) an October 31, 2019 record

noting that Plaintiff “report[ed] almost 100% relief of her prior lower back pain, with

improved function[ following a September 20, 2019 Radiofrequency ablation],”

stated that “she is better able to perform her regular exercise program[ and] is also

able to travel for long distances in the car without any significant discomfort,” and

presented as alert and oriented with normal mood and affect, and in no acute

distress, (id. (citing Tr. at 497-99)). The Court notes that the ALJ discussed these

findings before conducting a persuasiveness determination. (See id. at 27).

As to consistency, the ALJ found the opinion inconsistent with records

showing that Plaintiff (1) “regularly presented at her office visits as alert and

oriented, with normal mood and affect, and in no acute distress,” (2) showed mostly

unremarkable findings on physical examinations, (3) did not have any severe

abnormalities in spine imaging, and (4) reported relief with treatment and

medication. (Id. at 28 (citing Tr. at 363, 368, 396-97, 399, 465-66, 472-73, 526, 537-

38, 541-43, 786-88)).

Upon review of the record, the Court finds that the evidence cited by the ALJ

constitutes substantial evidence to support his finding that Dr. Weisman’s opinion is

unsupported by his own objective findings and inconsistent with the other evidence

of record. (See id. at 363, 368, 396-97, 399, 419-23, 440-43, 446-49, 465-66, 472-73,

497-99, 502-05, 508-11, 514-17, 518-21, 526, 537-38, 541-43, 786-88). Specifically,

the Court finds that the ALJ considered the limitations imposed by Dr. Weisman’s

opinion and determined that the opined limitations were neither consistent with nor

supported by the record as a whole. (See id. at 28).

In light of this, the Court finds unavailing Plaintiff’s argument that the ALJ

failed to appropriately consider the evidence of record in reaching his conclusion.

This is not an instance in which the ALJ broadly found the opinion inconsistent with

stable or normal findings. Rather, the ALJ here listed specific evidence that he found

inconsistent with and unsupportive of the opinion. (See Tr. at 28). Ultimately, the

Court finds that the ALJ fully addressed the basis for finding Dr. Weisman’s opinion

unpersuasive. (Id.).

To the extent Plaintiff asserts that certain of Dr. Weisman’s objective findings

support his opinion or that some evidence of record is consistent with and bolsters

Dr. Weisman’s opinion, the Court finds the argument unpersuasive. The mere fact

that other evidence of record supports a different conclusion does not require

remand. Rather, it is the ALJ’s job to evaluate and weigh evidence and to resolve

any conflicts in the record. “In reviewing an ALJ’s decision, [the Court] may not

decide the facts anew, make credibility determination[s], or re-weigh the evidence,

and [the Court] must affirm the ALJ’s findings if they are supported by substantial

evidence, even if the evidence preponderates against them.” Jones v. Soc. Sec. Admin.,

Comm’r, 695 F. App’x 507, 508 (11th Cir. 2017) (citing Mitchell v. Comm’r, Soc. Sec.

Admin., 771 F.3d 780, 782 (11th Cir. 2014); Winschel v. Comm’r, Soc. Sec. Admin., 631

F.3d 1176, 1178 (11th Cir. 2011)).

In sum, the Court finds that the ALJ comprehensively analyzed the

supportability and consistency of Dr. Weisman’s opinion while assessing its

persuasiveness as required by 20 C.F.R. § 404.1520c. Additionally, the Court finds

that the ALJ’s determination of the persuasiveness of Dr. Weisman’s opinion is

supported by substantial evidence within the record. Accordingly, the ALJ’s

decision is due to be affirmed as to this sub-issue.

C. Whether the ALJ Properly Conducted a

Subjective Symptom Determination.

Plaintiff argues that the ALJ erred by failing to acknowledge or discuss

Plaintiff’s “strong work history” in evaluating Plaintiff’s “credibility.” (See Doc. 16

at 17-19 (citations omitted)). While Plaintiff acknowledges that “the credibility

factor of work history [does not] automatically carr[y] more weight than the other

factors . . . fundamental fairness requires [its] consideration.” (Id. at 18-19 (citations

omitted)).

In response, the Commissioner argues that the ALJ properly evaluated

Plaintiff’s subjective complaints under the regulations and Eleventh Circuit case law.

(Doc. 20 at 10-13 (citations omitted)).

To establish disability based on testimony of pain and other symptoms, a

plaintiff must satisfy two prongs of the following three-part test: “(1) evidence of an

underlying medical condition; and (2) either (a) objective medical evidence

confirming the severity of the alleged pain; or (b) that the objectively determined

medical condition can reasonably be expected to give rise to the claimed pain.”

Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002) (citing Holt v. Sullivan, 921

F.3d 1221, 1223 (11th Cir. 1991)). After an ALJ has considered a plaintiff’s

complaints of pain, the ALJ may reject them, and that determination will be

reviewed to determine whether it is based on substantial evidence. Moreno v. Astrue,

366 F. App’x 23, 28 (11th Cir. 2010) (citing Marbury v. Sullivan, 957 F.2d 837, 839

(11th Cir. 1992)). If an ALJ discredits the subjective testimony of a plaintiff, then the

ALJ must “articulate explicit and adequate reasons for doing so. Failure to articulate

the reasons for discrediting subjective testimony requires, as a matter of law, that the

testimony be accepted as true.” Wilson, 284 F.3d at 1225 (citations omitted). “A

clearly articulated [subjective symptom determination] with substantial supporting

evidence in the record will not be disturbed by a reviewing court.” Foote, 67 F.3d at

1562.

The factors an ALJ must consider in evaluating a plaintiff’s subjective

symptoms are: “(1) the claimant’s daily activities; (2) the nature and intensity of pain

and other symptoms; (3) precipitating and aggravating factors; (4) effects of

medications; (5) treatment or measures taken by the claimant for relief of symptoms;

and other factors concerning functional limitations.” Moreno, 366 F. App’x at 28

(citing 20 C.F.R. § 404.1529(c)(3)).

The Court finds that the ALJ’s subjective symptom evaluation is supported by

substantial evidence and the ALJ did not err by failing to expressly analyze Plaintiff’s

work history in the context of the subjective symptom evaluation.

As an initial matter, while Plaintiff refers to the ALJ’s subjective symptom

evaluation as a “credibility analysis,” SSR 16-3p eliminated the use of the term

“credibility” in the sub-regulatory policy. SSR 16-3p, 81 Fed. Reg. 14166, 14171.3

3 Plaintiff does note this, stating, “Plaintiff will continue to use the word credibility

in this section of the brief, since it is in common usage, but only means by using it

the Agency’s required analysis of consistency and supportability.” (Doc. 16 at 17

n.12).

SSR 16-3p stressed that, when evaluating a claimant’s symptoms, the adjudicator

will “not assess an individual’s overall character or truthfulness” but instead “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.” Id. SSR 16-3p clarifies that adjudicators will consider whether the

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

symptoms are consistent with the objective medical evidence and other evidence of

record.” Id. at 14170. The ALJ’s opinion, read in context, did not assess Plaintiff’s

“character or truthfulness,” but rather, consistent with the two-step process for

evaluating symptoms, it assessed Plaintiff’s subjective complaints and found that

they conflicted with the other evidence in the record. (See Tr. at 26-28 (citations

omitted)); see also SSR 16-3p, 81 Fed. Reg. 14166, 14170-71; Hargress v. Soc. Sec.

Admin., Comm’r, 883 F.3d 1302, 1308 n.3 (11th Cir. 2018).4

Here, the ALJ found that Plaintiff’s medically determinable impairments

could reasonably be expected to cause Plaintiff’s alleged symptoms but her

4 “Social Security Rulings are agency rulings published under the Commissioner’s

authority and are binding on all components of the Administration.” Klawinski v.

Comm’r of Soc. Sec., 391 F. App’x 772, 775 (11th Cir. 2010) (citing Sullivan v. Zebley,

493 U.S. 521, 531 n.9 (1990)). While Social Security Rulings are not binding on the

Court, they are still afforded “great respect and deference, if the underlying statute is

unclear and the legislative history offers no guidance.” Id. (citing B. ex rel. B. v.

Schweiker, 643 F.2d 1069, 1071 (5th Cir. 1981)).

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

symptoms were not entirely consistent with the medical and other evidence of

record. (Tr. at 26-28).

The ALJ discussed Plaintiff’s allegations of pain and symptoms related to

Plaintiff’s chronic pain syndrome, obesity, multiple sclerosis, osteopenia, transverse

myelitis, spondylosis, myalgia, lumbago, and degenerative changes of the cervical

spine, but contrasted these allegations with: (1) Plaintiff’s objective physical

examinations throughout the record documenting normal strength and sensation,

intact reflexes, normal gait, and negative straight leg raise testing; (2) Plaintiff’s

ability to ambulate without an assistive device; (3) medical records noting that

Plaintiff’s pain related medications and treatments were effective in relieving her

pain; (4) medical records noting that Plaintiff reported “near complete resolution of

her prior lower back pain,” the ability to “perform her regular exercise program,”

and the ability “to travel for long distances in the car without any significant

discomfort;” and (5) a March 7, 2020 consultative examination in which Dr. Higdon

noted that Plaintiff was cooperative, but gave inconsistent effort during the

examination and displayed a steady gait, normal strength, intact sensation, and a

negative straight leg raising test. (See id. at 23-28 (citing Tr. at 46, 363, 368, 396-97,

399, 421, 440, 448-49, 499, 504-05, 510, 516-17, 520, 526, 537-38, 541-43, 649-50,

673, 696-97, 732, 766-67, 785-789)). After considering Plaintiff’s subjective

symptoms and providing an in-depth discussion and summary of Plaintiff’s

associated medical evidence, the ALJ concluded that Plaintiff can perform a limited

range of work activity, consistent with the RFC finding, such that she could return to

her sedentary past relevant work. (See id. at 25-29). Upon a review of the record, the

Court finds that the ALJ’s subjective symptom evaluation is supported by substantial

evidence in the record. (See id. at 46, 363, 368, 396-97, 399, 421, 440, 448-49, 499,

504-05, 510, 516-17, 520, 526, 537-38, 541-43, 649-50, 673, 696-97, 732, 766-67, 785-

789).

The Court also finds that the ALJ did not err by failing to explicitly discuss

Plaintiff’s work history in the context of the subjective symptom determination.

Plaintiff argues that “her strong work history” enhances her credibility, but as stated

above, the ALJ’s determination assesses the consistency and supportability of

Plaintiff’s subjective allegations, not Plaintiff’s credibility. See SSR 16-3p, 81 Fed.

Reg. 14166, 14170-71; Hargress, 883 at 1308 n.3. The subjective symptom evaluation

is the province of the ALJ and this Court declines to disturb it considering the

substantial supporting evidence in the record cited by the ALJ. See Foote, 67 F.3d at

1562. Moreover, when an ALJ conducts a subjective symptom evaluation, “there is

no rigid requirement that the ALJ specifically refer to every piece of evidence in his

decision, so long as the ALJ’s decision enables the district court to conclude that the

ALJ considered [the claimant’s] medical condition as a whole.” Adams v. Comm’r of

Soc. Sec., 586 F. App’x 531, 533 (11th Cir. 2014) (quotations omitted). Put another

way, the ALJ was required to consider all of the evidence presented, including

Plaintiff’s work history, see 20 C.F.R. § 404.1529(c)(3), however, he was not required

to expressly discuss it, see Mahon v. Comm’r of Soc. Sec., No. 8:16-cv-1462-T-JSS, 2017

WL 3381714, at *10 (M.D. Fla. Aug. 7, 2017) (finding that the ALJ did not err by

failing to discuss a plaintiff’s work history in the context of the credibility

assessment). Moreover, the ALJ noted Plaintiff’s past relevant work in his

determination and specifically cited Plaintiff’s Work History Report. (Tr. at 28-29

(citing Tr. at 199-205 and finding that Plaintiff can perform her past relevant work as

a Medical Clerk, Sales Agent, Financial, and Administrative Clerk)).

In sum, the Court finds that the ALJ considered the entire record of evidence

and appropriately found it inconsistent with Plaintiff’s subjective complaints of pain.

(See id. at 18-28); see also Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005)

(“[T]here is no rigid requirement that the ALJ specifically refer to every piece of

evidence in his decision, so long as the ALJ’s decision . . . is not a broad rejection

which is not enough to enable [the Court] to conclude that [the ALJ] considered

[Plaintiff’s] medical condition as a whole.”) (quotations omitted and citing Foote, 67

F.3d at 1561). Accordingly, the ALJ’s subjective symptom determination is

supported by substantial evidence and the ALJ’s decision is due to be affirmed as to

this issue.

VI. Conclusion

Upon consideration of the parties’ submissions and the administrative record,

the Court finds that the ALJ’s decision is supported by substantial evidence.

Accordingly, the Court ORDERS that:

1. The decision of the Commissioner is AFFIRMED pursuant to sentence

four of 42 U.S.C. § 405(g).

2. The Clerk of Court is directed to enter judgment accordingly, to

terminate any pending motions and deadlines, and to close the case.

DONE AND ORDERED tn Tampa, Florida on September 20, 2022.

Mac R. MA

United States Magistrate Judge

Copies furnished to:

Counsel of Record

Unrepresented Parties