# Spires v. Commissioner of Social Security

> District Court, M.D. Florida · September 14, 2023

URL: https://www.frixlaw.com/law-library/cases/10113934

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** September 14, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10113934

## How later opinions describe it (automated extraction)

- stating that the “ALJ must consider the applicant’s medical condition taken as a whole”

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

KENNETH GEORGE SPIRES,

Plaintiff,

v. Case No. 8:22-cv-1828-AEP

KILOLO KIJAKAZI,
Acting Commissioner of Social Security,1

Defendant.
/

ORDER

Plaintiff seeks judicial review of the denial of his claim for disability insurance
benefits (“DIB”). 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.
A. Procedural Background

Plaintiff filed an application for a period of disability, DIB, and SSI (Tr. 178,
179–87, 191–92, 193–94). The Social Security Administration (“SSA”) denied
Plaintiff’s claims both initially and upon reconsideration (Tr. 54, 55–57, 76, 77–79).
Plaintiff then requested an administrative hearing (Tr. 108–09). Per Plaintiff’s

1 Dr. Kilolo Kijakazi is now the Acting Commissioner of Social Security. Pursuant to Rule
25(d) of the Federal Rules of Civil Procedure, Acting Commissioner Kilolo Kijakazi
should be substituted for Commissioner Andrew M. Saul as the defendant in this matter.
No further action needs to be taken to continue this matter by reason of the last sentence
request, the ALJ held a hearing at which Plaintiff appeared and testified (Tr. 33).
Following the hearing, the ALJ issued an unfavorable decision finding Plaintiff not
disabled and accordingly denied Plaintiff’s claims for benefits (Tr. 23).

Subsequently, Plaintiff requested review from the Appeals Council, which the
Appeals Council denied (Tr. 1). 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).
B. Factual Background and the ALJ’s Decision

Plaintiff, who was born in 1962, claimed disability beginning July 19, 2019
(Tr. 47). Plaintiff obtained a GED (Tr. 219). Plaintiff’s past relevant work
experience included work as a department supervisor and painter (Tr. 73, 220, 424,
461). Plaintiff alleged disability due to chronic post-thoracotomy pain syndrome,

nerve damage, intercostal neuralgia, keloid scar, extreme fatigue, having part of his
esophagus and stomach removed, chronic nausea, extreme weight loss, GERD, and
depression. (Tr. 47).
In rendering the administrative decision, the ALJ concluded that Plaintiff
met the insured status requirements through December 31, 2024, and had not

engaged in substantial gainful activity since July 19, 2019, the alleged onset date
(Tr. 18). After conducting a hearing and reviewing the evidence of record, the ALJ
determined Plaintiff had the following severe impairments: status post-surgical
changes at the gastroesophageal junction with severe spontaneous reflux and weight
loss (Tr. 18). Notwithstanding the noted impairments, 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. 19). The ALJ then concluded that Plaintiff retained a residual functional

capacity (“RFC”) to “perform light work as defined in 20 CFR 404.1567(b) except
the claimant can occasionally perform all postural maneuvers, including climbing,
balancing, stooping, crouching, kneeling, and crawling.” (Tr. 20). 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. 22).
Considering Plaintiff’s noted impairments and the assessment of a vocational

expert (“VE”), the ALJ determined Plaintiff could perform his past relevant work
as generally performed and described in the Dictionary of Occupational Titles (Tr.
22–23). Accordingly, based on Plaintiff’s age, education, work experience, RFC,
and the testimony of the VE, the ALJ found Plaintiff not disabled (Tr. 23).
II.

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).
To regularize the adjudicative process, the SSA 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. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). 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)(4)(v), 416.920(a)(4)(v). 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)(1), 416.920(g)(1).
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 more

than a scintilla and is such relevant evidence as a reasonable person would accept
as adequate to support a conclusion.” Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176,
1178 (11th Cir. 2011) (citation and internal quotation marks omitted). While the
court reviews the Commissioner’s decision with deference to the factual findings,
no such deference is given to the legal conclusions. Ingram v. Comm’r of Soc. Sec., 496

F.3d 1253, 1260 (11th Cir. 2007) (citations omitted).
In reviewing the Commissioner’s decision, the court may not reweigh 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. Winschel, 631 F.3d at 1178

(citations omitted); 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. Ingram, 496 F.3d at 1260 (citation omitted). 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)
(per curiam) (citations omitted).
III.
Plaintiff argues that the ALJ erred (1) by finding that Plaintiff did not meet

or equal the listing found at 20 C.F.R. part 404, subpt. P, App. 2, § 5.08; (2) by
failing to meet the requisite standard in evaluating opinion evidence; and (3) by
failing to adequately consider Plaintiff’s subjective complaints. For the following
reasons, the ALJ applied the correct legal standards, and the ALJ’s decision is
supported by substantial evidence.

A. Listing 5.08
Plaintiff argues that the ALJ erred by finding that his illnesses did not meet
or equal the listing found at 20 C.F.R. part 404, subpt. P, App. 2, § 5.08. At step
three of the sequential evaluation process, the ALJ must determine whether
Plaintiff’s impairments meet or equal an impairment listed in the Listing. See 20

C.F.R. § 404.1520(a)(4)(iii); see also 20 C.F.R. pt. 404, subpt. P, app. 1. “The Listings
of Impairments describes, for each of the major body systems, impairments which
are considered severe enough to prevent a person from doing any gainful activity.”
Wilson, 284 F.3d at 1224 (citations omitted). The Supreme Court has explained that
the level of severity required to meet or equal a Listing is higher than needed to meet

or equal the statutory standard for disability. Sullivan v. Zebley, 493 U.S. 521, 532
(1990). A diagnosis alone cannot meet the criteria required to establish that an
impairment meets a Listing. 20 C.F.R. §§ 404.1525(d), 416.925(d).
The claimant bears the burden of proving his impairments meet or equal a
Listing. See Barron v. Sullivan, 924 F.2d 227, 229 (11th Cir. 1991). “To ‘meet’ a
Listing, a claimant must have a diagnosis included in the Listings and must provide
medical reports documenting that the conditions meet the specific criteria of the
Listings and the duration requirement.” Wilson, 284 F.3d at 1224 (citing 20 C.F.R.

§ 404.1525(a)–(d)). To show that her impairment matches a listing, a claimant must
meet all of the specified medical criteria. Sullivan, 493 U.S. at 530 (emphasis in
original). “An impairment that manifests only some of those criteria, no matter how
severely, does not qualify.” Id. “To ‘equal’ a Listing, the medical findings must be

‘at least equal in severity and duration to the listed findings.’” Wilson, 284 F.3d at
1224 (citing 20 C.F.R. § 404.1526(a)). If the claimant’s impairment meets or equals
the severity of the specified impairments in the Listing, the claimant is
presumptively disabled and entitled to benefits. Carpenter v. Comm’r of Soc. Sec., 614
F. App’x 482, 486 (11th Cir. 2015); Sullivan, 493 U.S. at 532.

Here, at step three of the sequential evaluation process, the ALJ concluded
that the severity of Plaintiff’s impairment did not meet or equal any Listing,
specifically § 5.08 (Tr. 20). The ALJ found that while Plaintiff suffered from weight
loss due to gastrointestinal disorders, that impairment did not satisfy the
requirements of the listing found at § 5.08 (Tr. 19–20). That listing requires:

5.08. Weight loss due to any digestive disorder despite continuing
treatment as prescribed, with BMI of less than 17.50 calculated on at
least two evaluations at least 60 days apart within a consecutive 6-
month period.

20 C.F.R. part 404, subpt. P, App. 2, § 5.08. The ALJ acknowledged that Plaintiff
was consistently losing weight beginning in 2017 (Tr. 19). The ALJ noted that
potentially be at listing levels if the claimant were to remain below 17.5 for a period
of over six months, despite treatment efforts” (Tr. 19). However, the ALJ
recognized that Plaintiff’s July 2021 treatment records showed significant weight

gain, with an accompanying BMI over 19, indicating that Plaintiff was able to
consume necessary calories (Tr. 19, 535). From this, the ALJ reasoned that because
Plaintiff was able to consume calories to maintain and gain weight, Plaintiff’s
associated physical examinations that indicated he was “weak appearing” were
unremarkable (Tr. 19, 293–94). Although there were signs of muscle wasting, the

ALJ focused on Plaintiff’s demonstration of full upper and lower extremity strength,
walking with a normal gait, and ability to perform toe and heel walking (Tr. 19–20,
310, 435–36). The ALJ thus concluded that Plaintiff did not meet or equal the listing
in § 5.08 (Tr. 20).
Plaintiff argues that the ALJ’s decision that Plaintiff does not meet the Listing

5.08 criteria is not supported by substantial evidence. Plaintiff argues that he meets
the listing requirements because he had several BMI measurements under 17.50
over a two-year period. Specifically, Plaintiff relies on BMI measurements between
October 22, 2020, and April 22, 2021. Plaintiff’s first evaluation by agency doctors
on October 22, 2020, indicated a BMI of 17.3, based upon his self-reported weight

of 104 pounds (Tr. 46). Next, on March 17, 2021, on examination by Dr.
Hirschfield, Plaintiff’s BMI was 16.64 (Tr. 433). On April 6, 2021, at Plaintiff’s
appointment with Dr. Reid, he had a BMI of 17.3 (Tr. 466). Finally, Plaintiff had
two separate appointments with two different physicians on April 22, 2021 (Tr. 451,
464). In his appointment with Dr. Reid, Plaintiff’s BMI was 17.47 (Tr. 464). In his
appointment with Dr. Aviles on the same day, Plaintiff’s BMI was 17.80 (Tr. 451).
Plaintiff chiefly reasons that if the initial evaluation by agency doctors on

October 22, 2020, where he self-reported his weight for the BMI calculation, is
included, then he meets the listing at 20 C.F.R. part 404, subpt. P, App. 2, § 5.08.
Without a legal definition of what constitutes “an evaluation” in this context from
Social Security or the Courts, Plaintiff contends this October BMI measurement
qualifies as “an evaluation” based on its plain meaning. Further, Plaintiff notes

there is no requirement in the listing that the “evaluation” done for § 5.08 must be
based on weight measured in a doctor’s office, rather than a self-reported weight.
Even still, Plaintiff argues that if it is not found that he meets the Listing 5.08
requirements, then he should be seen as equal to the listing. The Commissioner
counters that Plaintiff has not met Listing 5.08 because his critical BMI

measurements rely on self-reporting rather than a clinical evaluation. Further, the
Commissioner argues that even if the self-reported weight used to calculate
Plaintiff’s BMI was appropriate, it originated from his application for benefits filed
in July 2020, and therefore falls outside of the consecutive six-month window
necessary to meet Listing 5.08.

The guiding principle for the ALJ’s determination at step three in the
sequential evaluation process is if Plaintiff’s impairments meet all of the specified
criteria in a listing. See Sullivan, 493 U.S. at 530. Here, the ALJ’s conclusion that
Plaintiff did not meet or equal all of the criteria in Listing 5.08 is supported by
substantial evidence, and Plaintiff’s arguments fail for a few reasons. First, strict
compliance with the language of Listing 5.08 supports the ALJ’s reasoning to factor
in Plaintiff’s weight gain recorded in July 2021. Listing 5.08 requires weight loss due

to any digestive disorder demonstrated by BMI measurements of less than 17.50 on
at least two evaluations at least 60 days apart within a consecutive 6-month period.
20 C.F.R. part 404, subpt. P, App. 2, § 5.08. During the period in 2021 where
Plaintiff’s BMI dropped below 17.5, as recognized by the ALJ, Plaintiff experienced
instances of weight gain. On March 17, 2021, Plaintiff weighed 100 pounds (Tr.

433). On April 6, 2021, Plaintiff weighed 104 pounds, gaining four pounds since his
March 17th appointment (Tr. 466). On April 22, 2021, Plaintiff weighed 105
pounds, gaining another pound since his April 6th appointment (Tr. 464). Again,
on April 22, 2021, Plaintiff weighed 107 pounds and measured a BMI of over 17.50
(Tr. 451). This pattern, eventually culminating in his July 2021 weight of 119

pounds, shows clear signs of weight gain in light of his ongoing treatment rather
than weight loss despite such treatment. Although Plaintiff’s BMI measurements
remained below 17.50 for a considerable period of time, those measurements were
not indicative of weight loss, as required by Listing 5.08.
Second, even if the ALJ did err by disregarding the October 2020 BMI

calculation, such error is harmless since the ALJ relied on Plaintiff’s weight gain
over a 6-month period. At the crux of the ALJ’s decision to disregard the October
2020 BMI calculation is whether self-reported weight data rather than clinical
measurements by a physician is sufficient under Listing 5.08. Plaintiff argues that if
his self-reported weight for the October 2020 BMI calculation is included, then he
meets the listing at 20 C.F.R. part 404, subpt. P, App. 2, § 5.08. On the other hand,
the Commissioner contends that self-reported measurements are insufficient as an

“evaluation” for the purpose of calculating Plaintiff’s BMI under Listing 5.08.
However, this Court need not decide whether self-reported weight data is sufficient
under Listing 5.08 because here, Plaintiff showed a record of weight gain, rather
than weight loss, over the designated 6-month period. Further, the final date of the
consecutive 6-month period from October 22, 2020, to April 22, 2021, consists of

two BMI measurements for Plaintiff, one of which is below 17.50 while the other is
above 17.50. Even if the BMI calculation from October 22, 2020, were to be
included as desired by Plaintiff, the inconsistency in the BMI measurements on
April 22, 2021, within the consecutive 6-month period, leaves room for failure of
the Listing 5.08 criteria.

Although Plaintiff presented some evidence demonstrating aspects of Listing
5.08, “[a]n impairment that manifests only some of those criteria, no matter how
severely, does not qualify.” Sullivan, 493 U.S. at 530. Accordingly, the ALJ’s
decision that Plaintiff’s impairments do not meet or equal a listing is supported by
substantial evidence.

B. Medical Opinion
Plaintiff argues that the ALJ’s evaluation of opinion evidence from Dr.
Aviles and Dr. Reid does not meet the requisite standard as set out by the
regulations. Dr. Aviles gave two separate opinions about Plaintiff’s limitations. In
the first opinion given on September 17, 2020, Dr. Aviles indicated that Plaintiff
was capable of low stress work but would be off task for 20% of the workday and
would likely miss about 2 days of work per month (Tr. 410–11). On April 22, 2021,

Dr. Aviles changed his evaluation of Plaintiff to reflect that he was not capable of
low stress work, would be off task for 25% or more of the workday, and would likely
miss more than 4 days per month (Tr. 448–49). Plaintiff argues that the ALJ did not
treat Dr. Aviles’ opinions separately and by not doing so, the ALJ improperly
rejected the off task and absenteeism restrictions part of Dr. Aviles’ opinions.

Plaintiff further argues that the ALJ was required to mention and evaluate Dr.
Reid’s opinion and failed to do so. Specifically, Plaintiff contends that Dr. Reid’s
statement that Plaintiff suffered from “chronic pain, chronic weakness fatigue
patient does not have the strength to work” was probative of Plaintiff’s ability to
work, and the ALJ was required sufficiently explain the weight given to it (Tr. 467).

The Commissioner counters that Dr. Reid’s statement is not an “opinion” within
the meaning of the regulations, and therefore, the ALJ was not required to mention
or evaluate it.
The ALJ found the medical opinion of Dr. Aviles to be partially persuasive
and credited his opinions as supported by a treatment history involving at least two

visits (Tr. 21). The ALJ noted that Dr. Aviles found that Plaintiff could perform a
range of light work, with occasionally postural maneuvers, and no manipulative
limitations (Tr. 21–22). The ALJ also recognized that Dr. Aviles revised his
opinions on Plaintiff’s off task and absenteeism restrictions between the first and
second evaluation (Tr. 22). In evaluating the opinion evidence of Dr. Aviles, the
ALJ concluded that “[w]hile the exertional and postural maneuver limitations are
supported by the claimant’s status post left thoracotomy and esophagogastrostomy

surgeries, with resulting weight loss and acid reflux, the off task and absenteeism
restrictions are not consistent with the weight of evidence.” (Tr. 22). The ALJ
reasoned that Plaintiff has largely benign physical examinations, was able to
maintain and gain weight, and reported regular activities of daily living including
driving, shopping for groceries, and performance of some household chores (Tr. 22,

237–38, 293–94, 310, 426, 435–36, 464–65, 535).
When assessing the medical evidence, the ALJ may reject any opinion when
the evidence supports a contrary conclusion. Sryock v. Heckler, 764 F.2d 834, 835
(11th Cir. 1985) (per curiam) (citation omitted). A reviewing court will not second
guess an ALJ’s decision regarding the weight to afford a medical opinion, so long

as the ALJ articulates a specific justification for the decision. See Hunter v. Soc. Sec.
Admin. Comm’r, 808 F.3d 818, 823 (11th Cir. 2015). Previously, an ALJ was
required to afford the testimony of a treating physician substantial or considerable
weight unless “good cause” was shown to the contrary. Winschel, 631 F.3d at 1179;

Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1159 (11th Cir. 2004) (per curiam)
(citation omitted). However, claims filed on or after March 27, 2017, are governed
by a new regulation applying a modified standard for the handling of opinions from
treating physicians. See 20 C.F.R. § 404.1520c; see also Schink v. Comm’r of Soc Sec.,
935 F.3d 1245, 1259 n.4 (11th Cir. 2019). The new regulations remove the
“controlling weight” requirement when considering the opinions of treating
physicians for applications submitted on or after March 27, 2017. See 20 C.F.R. §
404.1520c(a); Yanes v. Comm’r of Soc. Sec., No. 20-14233, 2021 WL 2982084, at *5

n.9 (11th Cir. July 15, 2021). Because Plaintiff submitted her application for benefits
on July 29, 2020 (Tr. 178), the new regulation applies.
Under 20 C.F.R. § 404.1520c, an ALJ will not defer or give any specific
evidentiary weight to any medical opinion or prior administrative finding, including
from a claimant’s medical source. 20 C.F.R. § 404.1520c(a). “When a medical

source provides one or more medical opinions,” those opinions will be considered
“together in a single analysis,” using the factors listed in 20 C.F.R. § 404.1520c(c)(1)
through (c)(5), as appropriate. 20 C.F.R. § 404.1520c(a), (b)(1). These factors are as
follows: whether an opinion is well-supported; whether an opinion is consistent

with the record; the treatment relationship between the medical source and the
claimant; the area of the medical source’s specialization; and other factors that tend
to support or contradict a medical opinion or prior administrative medical finding.
20 C.F.R. § 404.1520c(c)(1)–(5). The ALJ is “not required to articulate how
[he/she] considered each medical opinion . . . from one medical source

individually.” 20 C.F.R. § 404.1520c(b)(1). The primary factors an ALJ will
consider when evaluating the persuasiveness of a medical opinion are supportability
and consistency. 20 C.F.R. § 404.1520c(a), (b)(2). Specifically, the more a medical
source presents objective medical evidence and supporting explanations to support
the opinion, the more persuasive the medical opinion will be. 20 C.F.R. §
404.1520c(c)(1). Further, the more consistent the medical opinion is with the
evidence from other medical sources and nonmedical sources, the more persuasive
the medical opinion will be. 20 C.F.R. § 404.1520c(c)(2). Beyond supportability and

consistency, an ALJ may also consider the relationship the medical source
maintains with the claimant, including the length of the treatment relationship, the
frequency of examinations, the purpose of the treatment relationship, the extent of
the treatment relationship, and whether the medical source examined the claimant,
in addition to other factors. 20 C.F.R. § 404.1520c(c)(3)(i)–(v), (c)(5).

As an initial matter, Plaintiff’s argument that the ALJ erred by discussing the
two opinions of Dr. Aviles as one fails for a few reasons. First, the ALJ recognized
that Dr. Aviles provided two separate opinions by stating that the treatment history
between Plaintiff and Dr. Aviles “involv[ed] at least two visits” and that Dr. Aviles’
opinions about off task and absenteeism restrictions was “later revised” (Tr. 21–22).

These statements by the ALJ directly contradict Plaintiff’s claim that the ALJ
evaluated Dr. Aviles’ two separate opinions as one. Second, even if the ALJ
discussed Dr. Aviles’ two separate opinions as one, that is not an error. Even though
Dr. Aviles offered multiple opinions, the new regulations explicitly state: “when 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 finding(s) from that medical source together in a single
analysis . . . .” 20 C.F.R. § 404.1520c(b)(1). The agency is “not required to articulate
how we considered each medical opinion or prior administrative medical finding
from one medical source individually.” Id. The regulations establish the ALJ was
not required to acknowledge and separately analyze each of Dr. Aviles’ separate
opinions. See id.

As to the substance of the ALJ’s evaluation and conclusion, substantial
evidence supports of the ALJ’s consideration Dr. Aviles’ medical opinion here. The
ALJ credited Dr. Aviles’ opinion with regard to his treatment of Plaintiff on at least
two separate occasions (Tr. 21, 409). The ALJ noted that Dr. Aviles’ opinion
addressed complaints surrounding Plaintiff’s post left thoracotomy and

esophagogastrostomy surgeries, with resulting weight loss and acid reflux (Tr. 22).
However, the ALJ found that Dr. Aviles’ opinion about Plaintiff’s off task and
absenteeism restrictions to be inconsistent with the overall record (Tr. 22). The ALJ
cited to Plaintiff’s largely benign physical examinations, his ability to maintain and

gain weight, and his performance of regular activities of daily living (Tr. 22, 237–
38, 293–94, 310, 426, 435–36, 464–65, 535). Further, ALJ recognized that Plaintiff’s
examinations with other providers showed signs of normal strength and range of
motion, and a normal gait and balance, as well as no serious deficits in memory,
insight, and judgment (Tr. 21–22, 293–94, 310, 425–26, 435–36, 464–65).

Therefore, the ALJ cited substantial evidence to support his finding that Dr. Aviles’
opinion was partially persuasive as to Plaintiff’s off task and absenteeism
restrictions.
Lastly, Plaintiff’s argument that the ALJ erred by failing to evaluate Dr.
Reid’s testimony fails under the new regulations. A medical opinion under the
regulations is “a statement from a medical source about what you can still do despite
your impairment(s) and whether you have one or more impairment-related
restrictions.” 20 C.F.R. § 404.1513(a)(2). Plaintiff argues the ALJ should have

evaluated Dr. Reid’s statement that Plaintiff does not have the strength to work (Tr.
467). However, the Eleventh Circuit has held “the task of determining a claimant's
[RFC] and ability to work is within the province of the ALJ, not of doctors.”
Robinson v. Astrue, 365 F. App'x 993, 999 (11th Cir. 2010). This Court has held before
that statements by doctors regarding a claimant’s ability to work are not “medical

opinions” within the meaning of the regulations, and the ALJ is not required to
analyze or place value in such statements. See 20 C.F.R. § 404.1520b(c)(3)(i); Dye v.
Comm’r of Soc. Sec., No. 5:20-cv-459-NPM, 2022 WL 970186, at *4–5 (M.D. Fla.
Mar. 31, 2022) (finding that the ALJ was no required to provide analysis of

statements such as claimant is “unable to resume any type of gainful employment,”
“unable to work on a sustained basis,” and that the claimant’s “symptoms will
significantly and consistently interfere with work performance and attendance”);
Cianfrani v. Comm’r of Soc. Sec., No. 2:20-cv-24-FtM-MRM, 2021 WL 973494, at *4
(M.D. Fla. Mar. 16, 2021) (finding that “the ALJ was not required to place any

value in Dr. Lovett’s assertion that Plaintiff could not return to work”). Here, Dr.
Reid’s statement that Plaintiff does not have the strength to work is not a medical
opinion within the meaning of the regulations, and the ALJ was not required to
provide analysis on how the statement was considered. Accordingly, substantial
evidence supports the ALJ’s findings with respect to the medical opinions about
Plaintiff.
C. Subjective Complaints

Plaintiff argues that the ALJ’s consideration of his subjective complaints of
fatigue and weakness, muscle wasting, and cachexia is not supported by substantial
evidence. The Commissioner responds that substantial evidence supports the ALJ’s
evaluation of Plaintiff’s subjective complaints, and that Plaintiff is essentially asking

this Court to reweigh the evidence.
At step four of the sequential evaluation process, the ALJ assesses the
claimant’s RFC and ability to perform past relevant work. See 20 C.F.R. §§
404.1520(a)(4)(iv), 404.1545, 416.920(a)(4)(iv), 416.945. To determine a claimant’s
RFC, the ALJ makes an assessment based on all the relevant evidence of record as

to what a claimant can do in a work setting despite any physical or mental
limitations caused by the claimant’s impairments and related symptoms. 20 C.F.R.
§§ 404.1545(a)(1), 416.945(a)(1). In rendering the RFC, therefore, the ALJ must
consider the medical opinions in conjunction with all the other evidence of record
and will consider all the medically determinable impairments, including

impairments that are not severe, and the total limiting effects of each. 20 C.F.R. §§
404.1520(e), 404.1545(a)(2), 404.1545(e), 416.920(e), 416.945(a)(2), 416.945(e); see
Jamison v. Bowen, 814 F.2d 585, 588 (11th Cir. 1987) (stating that the “ALJ must
consider the applicant’s medical condition taken as a whole”). In doing so, the ALJ
considers evidence such as the claimant’s medical history; medical signs and
laboratory findings; medical source statements; daily activities; evidence from
attempts to work; lay evidence; recorded observations; the location, duration,
frequency, and intensity of the claimant’s pain or other symptoms; the type, dosage,

effectiveness, and side effects of any medication or other treatment the claimant
takes or has taken to alleviate pain or other symptoms; treatment, other than
medication, the claimant receives or has received for relief of pain or other
symptoms; any measures the claimant uses or has used to relieve pain or symptoms;
and any other factors concerning the claimant’s functional limitations and

restrictions. 20 C.F.R. §§ 404.1529(c)(3)(i)–(vii), 404.1545(a)(3), 416.929(c)(3)(i)–
(vii), 416.945(a)(3); Social Security Ruling (“SSR”) 96-8p, 1996 WL 374184 (July
2, 1996); SSR 16-3p, 2017 WL 5180304 (Oct. 25, 2017).
As indicated, in addition to the objective evidence of record, the ALJ must
consider all the claimant’s symptoms, including pain, and the extent to which these

symptoms can reasonably be accepted as consistent with the objective evidence and
other evidence.2 See 20 C.F.R. §§ 404.1529, 416.929; SSR 16-3p, 2017 WL 5180304,
at *2. However, a claimant’s statement as to pain or other symptoms shall not alone
be conclusive evidence of disability. 42 U.S.C. § 423(d)(5)(A). To establish a

2 The regulations define “objective evidence” to include evidence obtained from the
application of medically acceptable clinical diagnostic techniques and laboratory findings.
20 C.F.R. §§ 404.1529(c)(2), 416.929(c)(2). Additionally, the regulations define “other
evidence” to include evidence from medical sources, non-medical sources, and statements
regarding a claimant’s pain or other symptoms, including about treatment the claimant has
received. See 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3). Moreover, the regulations define
“symptoms” as a claimant’s own description of his or her physical or mental impairment.
disability based on testimony of pain and other symptoms, the claimant must show
evidence of an underlying medical condition and either (1) objective medical
evidence confirming the severity of the alleged symptoms or (2) that the objectively

determined medical condition can reasonably be expected to give rise to the alleged
symptoms. Wilson, 284 F.3d at 1225 (citing Holt v. Sullivan, 921 F.2d 1221, 1223
(11th Cir. 1991)); see 20 C.F.R. §§ 404.1529, 416.929. Consideration of a claimant’s
symptoms thus involves a two-step process, wherein the ALJ first considers whether
an underlying medically determinable physical or mental impairment exists that

could reasonably be expected to produce the claimant’s symptoms, such as pain. 20
C.F.R. §§ 404.1529(b), 416.929(b); SSR 16-3p, 2017 WL 5180304, at *3-9. If the
ALJ determines that an underlying physical or mental impairment could reasonably
be expected to produce the claimant’s symptoms, the ALJ evaluates the intensity,

persistence, and limiting effects of those symptoms to determine the extent to which
the symptoms limit the claimant’s ability to perform work-related activities. 20
C.F.R. §§ 404.1529(c), 416.929(c); SSR 16-3p, 2017 WL 5180304, at *3–9. When
the ALJ discredits the claimant’s subjective complaints, the ALJ must articulate
explicit and adequate reasons for doing so. Wilson, 284 F.3d at 1225 (citation

omitted). A reviewing court will not disturb a clearly articulated finding regarding
a claimant’s subjective complaints supported by substantial evidence in the record.
Mitchell v. Comm’r, Soc. Sec. Admin., 771 F.3d 780, 782 (11th Cir. 2014); see Foote v.
Chater, 67 F.3d 1553, 1562 (11th Cir. 1995) (per curiam) (citation omitted).
Here, Plaintiff complained that he stopped working largely due to GERD,
extreme weight loss, nerve damage, chronic post-thoracotomy pain syndrome, and
complications from his surgery in which part of his esophagus and stomach were

removed (Tr. 20, 218). Plaintiff also complained of severe nausea, stomach aches,
and regular vomiting (Tr. 20, 33–35, 41, 235). Because of these impairments,
Plaintiff alleged difficulties with eating and performing all exertional, postural, and
manipulative activities, including needing to rest after walking one block (Tr. 20,
38, 40–41, 235, 240). Plaintiff argues that the ALJ did not adequately consider all

of the medical evidence available regarding Plaintiff’s severe weight loss. Further,
Plaintiff argues that Dr. Hirschfield’s examination does not support the ALJ’s
finding that Plaintiff is capable of light work.
The ALJ found that Plaintiff had the RFC to perform “light work as defined
in 20 CFR 404.1567(b) except the claimant can occasionally perform all postural

maneuvers, including climbing, balancing, stooping, crouching, kneeling, and
crawling” (Tr. 20). The ALJ further found that Plaintiff could perform his past
relevant work as a painting department supervisor, not as he performed it, but as it
is generally performed and described in the Dictionary of Occupational Titles (Tr.
22–23). In support of this conclusion, the ALJ ultimately determined that while

Plaintiff’s medically determinable impairments could reasonably be expected to
cause the alleged symptoms, “the claimant’s statements concerning the intensity,
persistence, and limiting effects of these symptoms are not entirely consistent with
the medical evidence and other evidence in the record” (Tr. 20).
In his evaluation, the ALJ compared Plaintiff’s complaints with the evidence
in the record and noted the inconsistencies (Tr. 19–22). Contrary to Plaintiff’s
argument, the ALJ did not “cherry-pick” facts to support a finding that Plaintiff was

not disabled while ignoring evidence that points to a disability finding. Rather, the
ALJ noted the extensive medical record and recognized that although some findings
lean in favor of establishing disability, Plaintiff’s subjective complaints were not
entirely supported by the evidence (Tr. 20–21, 288–92, 293, 300, 337). The ALJ
detailed that Plaintiff had lost weight at times in 2017 and 2020, but that Plaintiff’s

recent records show that he was able to gain and maintain weight in 2021 (Tr. 21,
535). The ALJ also contrasted Plaintiff’s examinations in March and April 2021
that showed signs of weakness and muscle wasting with Plaintiff’s concurrent
demonstration of full upper and lower extremity strength, including toe and heel
walking with a normal gait, as detailed in Dr. Hirschfield’s report (Tr. 21, 310, 435–

36). Additionally, Plaintiff’s ability to perform daily activities factored into the
ALJ’s analysis of Plaintiff’s subjective complaints (Tr. 21–22). While Plaintiff
initially complained he was not able to consume enough calories to perform basic
exertional activities, Plaintiff also reported that he could drive, shop for groceries,
and complete household chores (Tr. 22, 237–38). Later, however, Plaintiff’s

examination showed that he did have difficulties with driving, shopping, and
household chores (Tr. 461). The ALJ did not err by considering these
inconsistencies when analyzing Plaintiff’s subjective complaints. See 20 C.F.R. §
404.1529(c)(4). Accordingly, the ALJ’s consideration of Plaintiff’s subjective
complaints is supported by substantial evidence.
IV.

The Court finds the ALJ’s decision that Plaintiff does not meet the Listing
5.08 criteria is supported by substantial evidence. Further, the ALJ’s evaluation of
opinion evidence and consideration of Plaintiff’s subjective complaints were
supported by substantial evidence. As outlined above, the ALJ specifically

considered whether Plaintiff met the Listing 5.08 criteria. The ALJ then supported
his reasoning with record evidence. The ALJ also adequately considered and
explained all of the appropriate medical opinion evidence and Plaintiff’s subjective
complaints. The task of this Court is not to reweigh 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. Winschel, 631 F.3d at 1178. The Court may only
consider whether the ALJ’s decision is supported by substantial evidence, which it
is here.
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 Commissioner
and close the case.
DONE AND ORDERED in Tampa, Florida, on this 14th day of September,
2023.
LY,
ANTHONY E. PORCELLI
United Sfates Magistrate Judge

cc: Counsel of Record

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10113934. Public record. Not legal advice.