Durborow v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

DANIEL DURBOROW,

Plaintiff,

v. Case No. 6:22-cv-2295-JRK

MARTIN J. O’MALLEY,

Commissioner of Social Security,1

Defendant.

/

OPINION AND ORDER2

I. Status

Daniel Durborow (“Plaintiff”) is appealing the Commissioner of the Social

Security Administration’s (“SSA(’s)”) final decision denying his claims for

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

Plaintiff, who filed for disability following a March 2020 car accident, alleges an

inability to work as the result of numbness in his hands, a weak grip in his right

hand, left arm tingling, a left eye fracture, a spinal cord injury, tingling in his

1 Mr. O’Malley was sworn in as Commissioner of the Social Security

Administration on December 20, 2023. Pursuant to Rule 25(d)(1), Federal Rules of Civil

Procedure, Mr. O’Malley should be substituted for Kilolo Kijakazi as Defendant in this suit.

No further action need be taken to continue this suit by reason of the last sentence of section

205(g) of the Social Security Act, 42 U.S.C. ' 405(g).

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

Magistrate Judge. See Notice, Consent, and Reference of a Civil Action to a Magistrate Judge

(Doc. No. 18), filed March 7, 2023; Reference Order (Doc. No. 20), signed March 9, 2023 and

entered March 10, 2023.

legs, problems with muscles locking up, and nerve damage in his neck.

Transcript of Administrative Proceedings (Doc. No. 19; “Tr.” or “administrative

transcript”), filed March 7, 2023, at 95, 106, 117, 133, 321.

On May 11, 2020, Plaintiff protectively filed applications for DIB and SSI,

alleging a disability onset date of March 10, 2020. Tr. at 299-305 (DIB), 289-98

(SSI); see also Tr. at 95, 117 (DIB), 106, 133 (SSI). The applications were denied

initially, Tr. at 93, 94-103, 149, 151, 152-58 (DIB); Tr. at 104, 105-14, 159, 161,

162-68 (SSI), and upon reconsideration, Tr. at 115, 116-30, 173, 175, 176-88

(DIB); Tr. at 131, 132-46, 189, 191, 192-204 (SSI).3

On July 20, 2021, an Administrative Law Judge (“ALJ”) held a hearing,

during which she heard from Plaintiff, who was represented by counsel, and a

vocational expert (“VE”). 4 Tr. at 46-77. After the hearing, on August 27, 2021,

the VE from the hearing submitted written responses to the ALJ’s vocational

interrogatories; Plaintiff provided a different VE opinion by way of written

interrogatories; and additional medical evidence was received. Tr. at 382-387,

392-95, 405-07. On March 14, 2022, the ALJ held a supplemental hearing,

3 Some of the cited documents are duplicates.

4 The hearing was held via telephone, with Plaintiff’s consent, because of

extraordinary circumstances caused by the initial stages of the COVID-19 pandemic. Tr. at

48.

during which she mainly heard from the VE.5 Tr. at 32-44. On May 19, 2022,

the ALJ issued a Decision finding Plaintiff not disabled through the date of the

Decision. See Tr. at 15-26.

Thereafter, Plaintiff requested review of the Decision by the Appeals

Council and submitted a brief authored by his counsel in support. Tr. at 4-5

(Appeals Council exhibit list and order), 286-88 (request for review), 411-17

(brief). On October 25, 2022, the Appeals Council denied Plaintiff’s request for

review, Tr. at 1-3, making the ALJ’s Decision the final decision of the

Commissioner. On December 9, 2022, Plaintiff commenced this action under 42

U.S.C. §§ 405(g) and 1383(c)(3) by timely filing a Complaint (Doc. No. 1) seeking

judicial review of the Commissioner’s final decision.

Plaintiff on appeal makes two arguments: 1) “In violation of applicable

regulations governing the analysis of medical source opinions, the [ALJ] erred

in relying on outdated nonexamining state agency physician opinions that were

inconsistent with the opinions of examining physicians, treating specialists,

and the record as a whole regarding [Plaintiff’s] upper extremity limitations”;

and 2) “The [ALJ] erroneously evaluated [Plaintiff’s] symptoms in violation of

Social Security Ruling 16-3p and erred in relying on gaps in treatment as a

5 This hearing was also held via telephone, with Plaintiff’s consent, because of

extraordinary circumstances caused by the initial stages of the COVID-19 pandemic. Tr. at

34.

basis for denial even though [Plaintiff] testified that he could not afford

treatment and had been unsuccessful in his efforts to obtain low cost medical

care.” Plaintiff’s Brief (Doc. No. 24; “Pl.’s Br.”), filed May 6, 2023, at 1 (emphasis

omitted); see id. at 8-23 (argument one), 23-25 (argument two). On July 27,

2023, Defendant filed a Memorandum in Support of the Commissioner’s

Decision (Doc. No. 29; “Def.’s Mem.”) addressing Plaintiff’s arguments. Then, as

permitted, on August 10, 2023, Plaintiff’s Reply Brief (Doc. No. 30; “Reply”),

was filed. After a thorough review of the entire record and consideration of the

parties’ respective arguments, the undersigned finds that the Commissioner’s

final decision is due to be affirmed.

II. The ALJ’s Decision

When determining whether an individual is disabled,6 an ALJ must

follow the five-step sequential inquiry set forth in the Regulations, determining

as appropriate whether the claimant (1) is currently employed or engaging in

substantial gainful activity; (2) has a severe impairment; (3) has an impairment

or combination of impairments that meets or medically equals one listed in the

Regulations; (4) can perform past relevant work; and (5) retains the ability to

6 “Disability” is defined in the Social Security Act as the “inability 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 12 months.” 42 U.S.C. §§ 423(d)(1)(A),

1382c(a)(3)(A).

perform any work in the national economy. 20 C.F.R. §§ 404.1520, 416.920; see

also Simon v. Comm’r, Soc. Sec. Admin., 7 F.4th 1094, 1101-02 (11th Cir. 2021)

(citations omitted); Phillips v. Barnhart, 357 F.3d 1232, 1237 (11th Cir. 2004).

The claimant bears the burden of persuasion through step four, and at step five,

the burden shifts to the Commissioner. Bowen v. Yuckert, 482 U.S. 137, 146 n.5

(1987).

Here, the ALJ followed the five-step inquiry through step four, where she

ended the inquiry based on her findings at that step. See Tr. at 19-26. At step

one, the ALJ determined that Plaintiff “has not engaged in substantial gainful

activity since March 10, 2020, the alleged onset date.” Tr. at 18 (emphasis and

citation omitted). At step two, the ALJ found that Plaintiff “has the following

severe impairments: acute traumatic fractures of the C6 spinous process and

left C7 transverse process and multilevel degenerative changes of the cervical

spine.” Tr. at 18 (emphasis and citation omitted). At step three, the ALJ found

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.” Tr. at 18 (emphasis and citation

omitted).

The ALJ determined that Plaintiff has the following residual functional

capacity (“RFC”):

[Plaintiff can] perform light work as defined in 20 CFR [§§]

404.1567(b) and 416.967(b) except he could lift and/or carry up to

twenty pounds occasionally and ten pounds frequently. He could sit

for six hours in an eight-hour day and stand/walk for six hours in

an eight-hour day. He could perform unlimited pushing and pulling.

He could occasionally balance, stoop, kneel, crouch, crawl; and

climb ramps, stairs, ladders, and scaffolds. He could have

occasional exposure to unprotected heights and dangerous moving

machinery.

Tr. at 19 (emphasis omitted).

At step four, the ALJ relied on the VE’s hearing testimony and found that

Plaintiff “is able to perform past relevant work as a cashier, gambling” because

the “work does not require the performance of work-related activities precluded

by [Plaintiff’s RFC].” Tr. at 25 (emphasis, some italics, and citation omitted).

The ALJ concluded Plaintiff “has not been under a disability . . . from March

10, 2020, through the date of th[e D]ecision.” Tr. at 26 (emphasis and citation

omitted).

III. Standard of Review

This Court reviews the Commissioner’s final decision as to disability

pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). Although no deference is given

to the ALJ’s conclusions of law, findings of fact “are conclusive if . . . supported

by ‘substantial evidence.’” Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir.

2001) (citing Falge v. Apfel, 150 F.3d 1320, 1322 (11th Cir. 1998)). “Substantial

evidence is something ‘more than a mere scintilla, but less than a

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

(quoting Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987)). The substantial

evidence standard is met when there is “such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.” Falge, 150 F.3d at 1322

(quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)); see also Biestek v.

Berryhill, 139 S. Ct. 1148, 1154 (2019); Samuels v. Acting Comm’r of Soc. Sec.,

959 F.3d 1042, 1045 (11th Cir. 2020) (citation omitted). It is not for this Court

to reweigh the evidence; rather, the entire record is reviewed to determine

whether “the decision reached is reasonable and supported by substantial

evidence.” Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991) (citation

omitted). The decision reached by the Commissioner must be affirmed if it is

supported by substantial evidence—even if the evidence preponderates against

the Commissioner’s findings. Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155,

1158-59 (11th Cir. 2004) (per curiam).

IV. Discussion

Plaintiff challenges the ALJ’s evaluation of the medical opinions and

Plaintiff’s subjective complaints (particularly in light of Plaintiff’s inability to

afford treatment). The issues are addressed in turn.

A. Medical Opinion Evidence

Plaintiff contends the ALJ erred in “relying on outdated state agency

nonexamining opinions from [Prianka Gerrish, M.D. and Loc Kim Le, M.D.,]

consultants who reviewed the first month of progress notes during [Plaintiff’s]

extended hospitalization and a single report from [Pedro] Betances[, M.D.].”

Pl.’s Br. at 8; see Reply at 2-3. Plaintiff also contends it is problematic that the

ALJ omitted reference to the treating neurosurgeon’s note that surgery would

be necessary in the near future. Pl.’s Br. at 8; Reply at 2-3. Finally, Plaintiff

asserts the ALJ erroneously rejected opinions of examining physician William

Choisser, M.D., and medical expert (“ME”) Jason Lin, M.D., a board certified

neurologist. Pl.’s Br. at 8-9.

Responding, Defendant argues “the ALJ considered both consistency and

supportability in evaluating the opinions, as required by the regulations

applicable to this claim.” Def.’s Mem. at 1. According to Defendant, “the ALJ

articulated substantial evidence for finding that the medical opinions were

either persuasive or unpersuasive.” Id. at 13.

The SSA revised the rules regarding the evaluation of medical evidence

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

the Evaluation of Medical Evidence, 82 Fed. Reg. 5844, 5844 (January 18,

2017); see also 82 Fed. Reg. 15,132 (March 27, 2017) (amending and correcting

the final Rules published at 82 Fed. Reg. 5,844). Under the new rules and

Regulations, “A medical opinion is a statement from a medical source about

what [the claimant] can still do despite [his or her] impairment(s) and whether

[the claimant] ha[s] one or more impairment-related limitations or restrictions

in the following abilities:” 1) the “ability to perform physical demands of work

activities”; 2) the “ability to perform mental demands of work activities”; 3) the

“ability to perform other demands of work, such as seeing, hearing, or using

other senses”; and 4) the “ability to adapt to environmental conditions.” 20

C.F.R. § 404.1513(a)(2); see also 20 C.F.R. § 404.1502 (defining “[a]cceptable

medical sources”). An ALJ need not “defer or give any specific evidentiary

weight, including controlling weight, to any medical opinion(s) or prior

administrative medical finding(s), including those from [the claimant’s] medical

sources.” 20 C.F.R. § 404.1520c(a).7 “Because section 404.1520c falls within the

scope of the Commissioner’s authority and was not arbitrary and capricious, it

abrogates [the United States Court of Appeals for the Eleventh Circuit’s] prior

precedents applying the treating-physician rule.” Harner v. Soc. Sec. Admin.,

Comm’r, 38 F.4th 892, 896 (11th Cir. 2022).

The following factors are relevant in an ALJ’s consideration of a medical

opinion or a prior administrative medical finding: (1) “[s]upportability”; (2)

“[c]onsistency”; (3) “[r]elationship with the claimant”; (4) “[s]pecialization”; and

(5) other factors, such as “evidence showing a medical source has familiarity

with the other evidence in the claim or an understanding of [the SSA’s]

disability program’s policies and evidentiary requirements.” 20 C.F.R.

§ 404.1520c(c). Supportability and consistency are the most important factors,

7 Plaintiff filed his applications after the effective date of section 404.1520c, so

the undersigned applies the revised rules and Regulations.

and the ALJ must explain how these factors were considered. 20 C.F.R.

§ 404.1520c(b)(2). Generally, the ALJ is not required to explain how he or she

evaluated the remaining factors. 20 C.F.R. § 404.1520c(b)(2). However, if the

ALJ “find[s] that two or more medical opinions . . . about the same issue are

both equally well-supported . . . and consistent with the record . . . but are not

exactly the same, [the ALJ must] articulate how [he or she] considered the other

most persuasive factors . . . .” 20 C.F.R. § 404.1520c(b)(3).8

At issue are the state agency nonexamining medical opinions of Dr.

Gerrish and Dr. Le (who both reviewed and relied in part on the examining

opinion of Dr. Betances); the examining opinion of Dr. Choisser; and the

nonexamining ME opinion of Dr. Lin. The opinions are briefly summarized.

Dr. Betances examined Plaintiff and authored a report on August 8, 2020.

Tr. at 465-71. In relevant part, Dr. Betances opined under a “Limitations”

section of the report that Plaintiff “is unable to lift more than 15 lbs” due to

“present weakness on his right [h]and (unable to hold objects)” and has

“[p]resent numbness and tingling sensation on his [r]ight [h]and.” Tr. at 470

(some emphasis omitted). Dr. Betances also wrote under the “Medical Source

8 When a medical source provides multiple opinions, the ALJ is also not required

to articulate how he or she evaluated each medical opinion individually. 20 C.F.R.

§§ 404.1520c(b)(1), 416.920c(b)(1). Instead, the ALJ must “articulate how [he or she]

considered the medical opinions . . . from that medical source together in a single analysis

using the factors listed [above], as appropriate.” 20 C.F.R. § 404.1520c(b)(1).

Statement (functional abilities and restrictions)” section that Plaintiff’s

“functional abilities are limited on his right upper extremity due to recent

trauma” and “[h]is specific restrictions include work-related activities that

required occasional standing, walking or lifting.” Tr. at 470 (some capitalization

and emphasis omitted).

Dr. Gerrish on August 17, 2020 reviewed the then-available medical

evidence and opined Plaintiff could occasionally lift and/or carry 20 pounds,

could frequently lift and/or carry 10 pounds, could stand and/or walk about 6

hours in an 8-hour day, could sit about 6 hours in an 8-hour day, and had

unlimited ability to push and pull (except as to the carrying and lifting

limitations). Tr. at 99. He could also occasionally climb ramps, stairs, ropes, and

scaffolds. Tr. at 99, 110. He could occasionally balance, stoop, kneel, crouch, and

crawl. Tr. at 99-100, 111. Plaintiff should avoid concentrated exposure to

hazards. Tr. at 100, 111. Dr. Gerrish noted, “While MSO [Dr. Betances] limits

lifting 15 lbs, I do think 20 lbs is within the range of acceptable lifting limits

based on the evidence. Grip has overall been maintained. Gait is normal and no

[assistive device] needed.” Tr. at 101, 112.

On February 22, 2021, Dr. Le reviewed the evidence and affirmed Dr.

Gerrish’s opinion. Tr. at 123-27, 139-43. In so doing, Dr. Le specifically noted

the “CE” opinion (that of Dr. Betances), that Plaintiff “is unable to lift more

than 15 lbs, present weakness on his right [h]and (unable to hold objects)” and

also that Plaintiff has “[p]resent numbness and tingling sensation on his [r]ight

[h]and” limiting his “functional abilities . . . on his right upper extremity.” Tr.

at 142. Dr. Le also noted Dr. Betance’s “restrictions include[d] work-related

activities that required occasional standing, walking or lifting.” Tr. at 126, 142.

On June 10, 2021, Dr. Choisser examined Plaintiff at his counsel’s request

and authored a report, Tr. at 535-36, and a Physical Residual Functional

Capacity Questionnaire, Tr. at 529-33. In part, Dr. Choisser opined Plaintiff

would be off task 10% of the time. Tr. at 530. Plaintiff could walk 12 city blocks,

he can sit 1 hour at a time, he could stand 1 hour at a time, and he could sit,

stand, and walk at least 6 hours in a day. Tr. at 531. Plaintiff could occasionally

lift and carry up to 10 pounds but not more. Tr. at 532. Plaintiff could

occasionally look down, turn his head right and left, look up, and hold his head

in a static position. Tr. at 532. Plaintiff could occasionally twist, stoop,

crouch/squat, and climb stairs, and he could never climb ladders. Tr. at 532.

Plaintiff had significant limitations in reaching, handling, and fingering that

included being able to use his right hand to grasp, turn and twist objects only

10% of the time and his left hand 50% of the time. Tr. at 32. Plaintiff could use

his right fingers for fine manipulation 10% of the time and his left fingers 50%

of the time. Tr. at 532. Plaintiff could not reach overhead with his right arm,

but could reach overhead 50% of the time with his left arm. Tr. at 532. Plaintiff

would miss about one day per month of work. Tr. at 532. He could not have any

exposure to cold temperatures or perfumes. Tr. at 533.

On December 29, 2021, the ALJ requested that ME Dr. Lin, a neurologist,

review the evidence and complete interrogatories about Plaintiff’s ability to

perform work. Tr. at 555. Dr. Lin completed the interrogatories on January 4,

2022. Tr. at 567-76. In part, Dr. Lin opined Plaintiff could continuously lift and

carry up to 10 pounds and occasionally up to 20 pounds. Tr. at 567. According

to Dr. Lin, Plaintiff could stand 1 hour at a time and walk 30 minutes at a time,

with the ability to sit 5 hours total, stand 2 hours total, and walk 1 hour total

in a workday. Tr. at 568. Plaintiff could reach, handle, finger, feel, and push/pull

only occasionally with the right hand and continuously with the left hand. Tr.

at 569. He could use both feet frequently for operation of foot controls. Tr. at

569. Plaintiff could occasionally balance, stoop, kneel, crouch, and crawl but

could never climb stairs, ramps, ladders or scaffolds. Tr. at 570. Plaintiff could

occasionally tolerate exposure to moving mechanical parts and operating a

motor vehicle, could never be around unprotected heights, and could

continuously tolerate all other relevant work environments. Tr. at 571. Dr. Lin

also found Plaintiff was able to do a laundry list of specific daily-type activities,

including: shopping, traveling without a companion, ambulate without

assistance, walking a block at a reasonable pace on rough or uneven surfaces,

using public transportation, climbing a few steps at a reasonable pace,

preparing simple meals, caring for his personal hygiene, and

sorting/handling/using paper and files. Tr. at 572.

Here, the ALJ was quite thorough in her evaluation of the opinion

evidence, except for her omission of a part of Dr. Betances’ opinion. The ALJ

wrote in relevant part regarding Dr. Betances:

[Plaintiff] did not have any treatment, emergent or

otherwise, until he was evaluated by consultative

examiner, Pedro Betances, MD, on August 8, 2020. At

the time, [Plaintiff’s] main concerns were the right

hand swelling and numbness causing trouble holding

things, and weakness in the same arm. The review of

systems also shows he complained of joint pain and

stiffness, present at the time in his right side of the

neck. The physical examination evidenced muscle

spasm in his neck. However, there was no deformity,

tenderness, and the straight leg raising test was

normal in both seated and supine positions. He had

swelling but it was slight, and he maintained full range

of motion in all joints in his right hand. There was

slightly reduced strength in the right extremities (4/5)

and right grip (4/5). The rest of the neuromuscular

testing was within normal limits, including dexterity,

Romberg sign, and sensory examination. [Plaintiff] had

normal gait and station, without difficulty walking,

squatting, and rising, or getting on and off the

examination table. His finger-nose test showed smooth

accurate movement, without difficulty. He had a five-

degree deficit in range of motion in all maneuvers of the

cervical spine, and full range of motion in all other

joints. Dr. Betances opined [Plaintiff] is able to lift up

to fifteen pounds with his right hand, without any other

limitations listed. The undersigned finds this opinion

to be somewhat persuasive. This evaluation was done

only five months after the accident, and it did not give

a complete or specific opinion on the most [Plaintiff]

could perform. It is also inconsistent with the rest of the

record since there is generally no indication thereafter

of swollen joints in the right hand or neck spasm.

Although the undersigned agrees that at the time, due

to the recency of the accident, he may have been limited

to lifting 15 pounds, subsequent medical evidence of

record, detailed further below, consistently found

[Plaintiff] had normal gait and grossly unremarkable

physical findings.

Tr. at 20-21 (citations omitted, emphasis added). As to the Drs. Gerrish and Le,

the nonexamining state agency physicians, the ALJ summarized their opinions

and wrote:

Dr. Gerrish noted that [Plaintiff] reported he was

independent in his activities of daily living despite his

reported symptoms. He could walk without assistance,

prepare simple meals, and do light cleaning and

laundry. He was also able to dress and bathe himself

independently, including open and close zippers and

buttons with his left hand[]. Lock Kim Le, MD,

reviewed the case at the reconsideration level and

concurred with Dr. Gerrish’s assessment. Dr. Le noted

that the exams showed mild weakness on his right arm,

and spinal examination evidenced muscle spasm on his

upper back and neck area. However, his major joints

were free of inflammation and pain, and he only had

slight swelling in his right hand. Despite his claims of

numbness and weakness, [Plaintiff’s] gait was normal.

The undersigned finds their opinions to be persuasive.

Their opinions are consistent with the evidence of the

record at the time of their review. Subsequent evidence

received at the hearing level does not support greater

limitations and further reduction of the [RFC]. Aside

from the one-time evaluation by Dr. Choissier, the

overall medical evidence of record shows [Plaintiff] has

some mild weakness in his upper extremity. The

allegations of inability to stand or walk for prolonged

periods of time are in contrast with his intact gait and

normal neurological examinations as detailed above.

Specifically, the primary care physician’s records show

[Plaintiff] had normal tone and strength, no tenderness

on palpation, and grossly intact sensation and

monofilament test. [Plaintiff] did not complain of any

pain and was not taking any medications. Although he

complained of pain and numbness during the

neurosurgical evaluation, the physical examination

showed good range of motion throughout and steady

gait. Cranial nerves and sensation were intact, and

muscle tone and strength were good throughout. Most

notably, [Plaintiff’s] gross and fine motor movements

were also intact. Therefore, the undersigned finds the

record, as a whole, is consistent with the State Agency

medical consultants’ determinations.

Tr. at 24-25 (citations omitted). Regarding the consultative examination and

opinion by Dr. Choisser, the ALJ summarized the opinion on functional

limitations and found as follows:

Dr. William Choisser saw [Plaintiff] only one time, at

his attorney’s request to support litigation. Dr.

Choisser is a family medicine physician, not a specialist

in treating orthopedic or neurological conditions.

Notably, he was not clear on whether active or passive

range of motion was required of [Plaintiff]. He was not

privy to the entire record as he reviewed only the

records from Holmes Regional covering [Plaintiff]’s

hospitalization from March to April 2020, and the

consultative examiner’s report from August 8, 2020. Dr.

Choisser selected portions of the report that supported

his diagnostic findings and omitted all the range of

motion observations referenced by the consultative

examiner. Specifically, he did not document the full

range of motion on hand flexion, extension of finger

joints; he did not record all range of motion for the right

shoulder, or for the cervical spine. It should also be

noted that there is no record of treatment or a

diagnostic impression for a frozen right shoulder prior

to his statement. He mentioned the reduced range of

motion for the back, yet [Plaintiff] has not been

consistently treating for a back impairment and did not

specifically allege it as an impairment that disabled

him. Consequently, the undersigned finds this opinion

to be minimally persuasive as it is inconsistent with

and generally not supported by the evidence of record.

Tr. at 22-23. And finally, as to Dr. Lin, the ALJ summarized the assigned

functional limitations before again making detailed findings. Tr. at 23-24. The

ALJ observed that Dr. Lin “relied almost entirely on Dr. William Choisser’s

evaluation and opinion” and wrote specific examples in support. Tr. at 23

(citation omitted). The ALJ went on:

[T]he entirety of the record does not support these

limitations. In fact, the physical examination

consistently showed [Plaintiff] had no gait disturbance

and did not require any assistive device to ambulate. In

his own report, Dr. Choisser noted [Plaintiff] had full

range of motion of the hips and lower extremities, and

negative straight leg raising test. He had slight

reduction (4/5) in lower extremity strength. Moreover,

during the consultative examination in August 2020,

[Plaintiff] had normal gait and station. He had no

difficulty walking, squatting, and rising, or getting on

and off the examination table. A year later, his primary

care physician noted [Plaintiff] denied having any

difficulty walking and he was observed ambulating

normally. The latest physical examination showed good

range of motion throughout and steady gait. Thus, the

restrictions in standing and walking, and operating

foot controls are not supported by the objective evidence

of record.

Tr. at 23 (citations omitted). The ALJ then explained why she found Dr. Lin

overstated Plaintiff’s postural limitations, ultimately finding that “these

limitations – especially the extreme limitation of never climbing even ramps or

stairs is not well supported by the record in its entirety.” Tr. at 24. The ALJ also

addressed in detail Dr. Lin’s assigned limitations regarding the use of Plaintiff’s

hands:

Dr. Lin opined [Plaintiff] could use his right hand

occasionally for reaching, handling, fingering, feeling,

pushing, and pulling, and his left hand continuously for

all maneuvers. The undersigned finds these limitations

are not supported by the objective evidence of record.

Although [Plaintiff] has reported some numbness and

tingling in his hands, there have been no objective

testing done to support his reports or a suggested

diagnosis of neuropathy. Although during one

evaluation he was found to have 3/5 strength in the

right hand, the rest of the examinations in the record

found only slightly decreased strength (4/5). Moreover,

in the latest neurologic examination was unremarkable

with grossly intact sensation and monofilament test.

Furthermore, his primary care physician noted in

February 2022 that his muscle tone and strength were

good throughout and sensation was intact, and reflexes

were physiologic throughout. [Plaintiff’s] gross and fine

motor movements were also intact. Therefore, although

he may have had an exacerbation of symptoms, this

appears to have been temporary. The undersigned has

accounted for his slightly decreased strength in

reducing his [RFC] to light. However, further reduction

is not supported, and Dr. Lin’s restrictions are

inconsistent with the record as a whole.

Tr. at 24 (citations omitted). Finally, the ALJ addressed the other limitations

assigned by Dr. Lin:

Dr. Lin opined [Plaintiff] could have occasional

exposure to moving mechanical parts and operating a

motor vehicle. However, he should never be exposed to

unprotected heights.

When asked about specific activities, however, Dr. Lin

indicated [Plaintiff] had no limitations. This included

the ability to walk a block at a reasonable pace on rough

or uneven surfaces; and, climb a few steps at a

reasonable pace with the use of a single rail. To support

these statements, he then relied on the neurologist and

primary care physician’s physical exams that were

unremarkable. Dr. Cruz noted [Plaintiff’s] position

sense was intact in the toes as was vibration sense. He

had no sensory loss to pinprick and gait was normal.

He then cited Dr. Morales’ findings of normal tone and

intact motor strength, and normal gait. Also, he first

opined [Plaintiff] could never climb, but then stated he

could climb steps at a normal pace, this is clearly

contradictory. Thus, Dr. Lin’s opinion is internally

inconsistent.

Consequently, due to the inconsistencies and

contradictions, and the citing of specific physical

examinations rather than an evaluation of the evidence

in its entirety, the undersigned finds his opinion is not

wholly persuasive.

Tr. at 24 (citations omitted).

The ALJ’s articulated reasons for the persuasiveness (or lack thereof)

regarding the various medical opinions are adequate and supported by

substantial evidence. In challenging the ALJ’s Decision, Plaintiff contends the

nonexamining opinions are “outdated” and “inconsistent” with other opinions.

Pl.’s Br. at 1; see id. at 1, 14. Of course, the nonexamining opinions occurred

earlier in the administrative process—at the initial denial and reconsideration

phases—as is typical. This timing does not, in and of itself, mean the opinions

are “outdated,” though. Moreover, the actual medical evidence (sans other

opinions) did not develop in such away after these nonexamining opinions were

rendered so as to call into question their validity. The ALJ was careful to

consider the entirety of the evidence, not just these opinions, in reaching the

ultimate conclusion.

Plaintiff indicates that the nonexamining physicians and the ALJ failed

to acknowledge part of Dr. Betances’ opinion: that is, Plaintiff is unable to hold

objects with his right hand and can only stand, walk, and lift occasionally. Pl.’s

Br. at 13. However, Dr. Le (the reconsideration physician), specifically noted

these restrictions assigned by Dr. Betances and rejected them. Tr. at 126, 142.

Although the ALJ did not specifically mention these particular limitations in

the Decision, the omission is harmless.9 Dr. Le, on whom the ALJ partially

relied, clearly took the limitations into account and rejected them. Moreover,

other opinions of similar nature were specifically rejected by the ALJ, so

sending the matter back to the ALJ to reconsider this portion would not serve

a purpose.

Plaintiff generally contends the ALJ erred because of the election not to

rely on the somewhat consistent opinions of Dr. Choisser and Dr. Lin. The ALJ,

9 They may have been overlooked because they were placed in a section of the

opinion that one would not necessarily look to when searching for work-related limitations.

See Tr. at 126, 142.

however, articulated numerous reasons for electing not to find these opinions

persuasive, including that Dr. Lin relied heavily on Dr. Choisser to the

exclusion of other medical evidence in the file. Tr. at 23-24. As well, the ALJ

pointed to internal inconsistencies in Dr. Lin’s opinion. Tr. at 24. Overall, it is

evident the ALJ adequately took into account and explained the consistency

and supportability factors, 20 C.F.R. § 404.1520c(b)(2), as well as the others, in

arriving at her conclusions. The ALJ’s findings are supported by substantial

evidence and need not be disturbed.10

B. Symptom Evaluation in Light of Inability to Afford Treatment

Plaintiff contends the ALJ erred in evaluating his subjective complaints

of pain and other symptoms, particularly in light of his inability to afford

treatment. Pl.’s Br. at 23-25. Responding, Defendant argues the ALJ adequately

addressed Plaintiff’s subjective complaints and particularly his claim about the

alleged inability to afford treatment. Def.’s Mem. at 13-14.

10 Plaintiff makes much of his treating doctor stating shortly after his accident

that surgery would be required in the near future. See, e.g., Pl.’s Br. at 3, 11, 14 (referring to

Tr. at 434). Plaintiff contends the ALJ minimized the matter by stating, “He did not require

surgical intervention at the time.” Tr. at 20 (citation omitted). The ALJ’s statement was

technically accurate: Plaintiff did not require immediate surgical intervention. The treating

doctor, however, believed it would be necessary in the future. The ALJ recognized Plaintiff’s

testimony to this effect: “He explained that he was advised he needed surgery on his neck but

had not been able to see a specialist due to lack of insurance and financial backing.” Tr. at 19.

Overall, the ALJ did not mischaracterize this point so as to call into question her overall

findings in the Decision.

“[T]o establish a disability based on testimony of pain and other

symptoms, the claimant must satisfy two parts of a three-part showing:

(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.2d 1221, 1223 (11th Cir. 1991)). “The claimant’s

subjective testimony supported by medical evidence that satisfies the standard

is itself sufficient to support a finding of disability.” Holt, 921 F.2d at 1223.

The Regulations in effect at the time of the ALJ’s Decision provided that

an ALJ “will” consider the following factors related to symptoms such as pain:

(i) [The claimant’s] daily activities; (ii) The location,

duration, frequency, and intensity of [the claimant’s]

pain or other symptoms; (iii) Precipitating and

aggravating factors; (iv) The type, dosage,

effectiveness, and side effects of any medication [the

claimant] take[s] or ha[s] taken to alleviate [his or her]

pain or other symptoms; (v) Treatment, other than

medication, [the claimant] receive[s] or ha[s] received

for relief of [his or her] pain or other symptoms; (vi) Any

measures [the claimant] use[s] or ha[s] used to relieve

[his or her] pain or other symptoms . . .; and (vii) Other

factors concerning [the claimant’s] functional

limitations and restrictions due to pain or other

symptoms.

20 C.F.R. § 404.1529(c)(3)(i)-(vii); see Raper v. Comm’r of Soc. Sec., 89 F.4th

1261, 1277 (11th Cir. 2024). The factors must be considered “in relation to other

evidence in the record and whether the claimant’s statements conflict with

other evidence.” Raper, 89 F.4th at 1277 (citation omitted); see 20 C.F.R. §

404.1529(c)(4). To reject the claimant’s assertions of subjective symptoms,

“explicit and adequate reasons” must be articulated by the ALJ. Wilson, 284

F.3d at 1225; see also Dyer, 395 F.3d at 1210; Marbury v. Sullivan, 957 F.2d

837, 839 (11th Cir. 1992).

“[B]efore denying an application based on a claimant’s failure to comply

with prescribed medical care, the ALJ must consider whether the claimant is

able to afford the medical care.” Brown v. Comm’r of Soc. Sec., 425 F. App’x 813,

817 (11th Cir. 2011) (citing Ellison v. Barnhart, 355 F.3d 1272, 1275 (11th Cir.

2003)). A claimant’s inability to afford medical care excuses his or her lack of

such care. Dawkins v. Bowen, 848 F.2d 1211, 1213 (11th Cir. 1988) (stating that

the court “agree[s] with every circuit that has considered the issue that poverty

excuses noncompliance [with prescribed medical treatment]”) (citations

omitted). “Nevertheless, if the claimant’s failure to follow medical treatment is

not one of the principal factors in the ALJ's decision, then the ALJ's failure to

consider the claimant's ability to pay will not constitute reversible error.” Id.

(citing Ellison, 355 F.3d at 1275).

Here, the ALJ relied to a degree on the large gaps in treatment in finding

Plaintiff’s symptoms are not as bad as he alleges. Tr. at 20, 21. Plaintiff did

contend he was unable to afford the care and did not have proper insurance,

which the ALJ recognized in the Decision. Tr. at 19, 57. The ALJ aptly pointed

out, however, that she asked Plaintiff about his attempts to get free or low cost

treatment, and Plaintiff admitted he only called a facility that offered such

treatment one time and did not hear back. Tr. at 19, 68-69. Among other

reasons, the ALJ found the RFC “is supported by the gaps in treatment and the

fact that [Plaintiff] maintained he attempted to obtain low-cost services, but

later admitted he only called once.” Tr. at 25. The ALJ adequately considered

this matter and her findings are supported by substantial evidence.

V. Conclusion

The ALJ’s Decision is supported by substantial evidence. In light of the

foregoing, it is

ORDERED:

1. The Clerk of Court is directed to enter judgment pursuant to

sentence four of 42 U.S.C. § 405(g) and § 18838(c)(3), AFFIRMING the

Commissioner’s final decision.

2. The Clerk is further directed to close the file.

DONE AND ORDERED in Jacksonville, Florida on February 21, 2024.

poriee, Ke KA

JAMES R. KLINDT

United States Magistrate Judge

24

kaw

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