The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
ALQUIYAMAH GHAFUR FAIZ,
Plaintiff,
v. Case No.: 6:22-cv-1978-DNF
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
OPINION AND ORDER
Plaintiff Alquiyamah Ghafur Faiz 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 proceedings (“Tr.” followed by the appropriate page
number), and the parties filed legal memoranda setting forth their positions. As
explained below, the decision of the Commissioner is AFFIRMED under § 205(g)
of the Social Security Act, 42 U.S.C. § 405(g).
I. Social Security Act Eligibility, Standard of Review, Procedural
History, and the ALJ’s Decision
A. Social Security Eligibility
The law defines disability as the inability to do 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. §§ 416(i), 423(d)(1)(A),
1382c(a)(3)(A); 20 C.F.R. §§ 404.1505(a), 416.905(a). The impairment must be
severe, making the claimant unable to do her previous work, or any other substantial
gainful activity which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A),
1382c(a)(3)(A); 20 C.F.R. §§ 404.1505–404.1511, 416.905–416.911.
B. Standard of Review
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 and is such relevant evidence as a reasonable person would accept as
adequate to support a conclusion. Even if the evidence preponderated against the
Commissioner’s findings, we must affirm if the decision reached is supported by
substantial evidence.” Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th
Cir. 2004). In conducting this review, this Court may not reweigh the evidence or
substitute its judgment for that of the ALJ, but must consider the evidence as a whole,
taking into account evidence favorable as well as unfavorable to the decision.
Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (citation
omitted); Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995); Martin v. Sullivan,
894 F.2d 1520, 1529 (11th Cir. 1990). Unlike findings of fact, the Commissioner’s
conclusions of law are not presumed valid and are reviewed under a de novo
standard. Keeton v. Dep’t of Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir.
1994); Maldonado v. Comm’r of Soc. Sec., No. 20-14331, 2021 WL 2838362, at *2
(11th Cir. July 8, 2021); Martin, 894 F.2d at 1529. “The [Commissioner’s] failure
to apply the correct law or to provide the reviewing court with sufficient reasoning
for determining that the proper legal analysis has been conducted mandates
reversal.” Keeton, 21 F.3d at 1066.
The ALJ must follow five steps in evaluating a claim of disability. 20 C.F.R.
§§ 404.1520, 416.920. At the first step, the ALJ must determine whether the claimant
is currently engaged in substantial gainful employment. 20 C.F.R.
§ 404.1520(a)(4)(i), (b); 20 C.F.R. § 416.920(a)(4)(i), (b). At step two, the ALJ must
determine whether the impairment or combination of impairments from which the
claimant allegedly suffers is “severe.” 20 C.F.R. § 404.1520(a)(4)(ii), (c); 20 C.F.R.
§ 416.920(a)(4)(ii), (c). At step three, the ALJ must decide whether the claimant’s
severe impairments meet or medically equal a listed impairment. 20 C.F.R.
§ 404.1520(a)(4)(iii), (d); 20 C.F.R. § 416.920(a)(4)(iii), (d). If the ALJ finds the
claimant’s severe impairments do not meet or medically equal a listed impairment,
then the ALJ must determine whether the claimant has the residual functional
capacity (“RFC”) to perform her past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv),
(e)–(f); 20 C.F.R. § 416.920(a)(4)(iv), (e)–(f).
If the claimant cannot perform past relevant work, the ALJ must determine at
step five whether the claimant’s RFC permits her to perform other work that exists
in the national economy. 20 C.F.R. §§ 404.1520(a)(4)(v), (g), 416.920(a)(4)(v), (g).
At the fifth step, there are two ways in which the ALJ may establish whether the
claimant is capable of performing other work available in the national economy. The
first is by applying the Medical Vocational Guidelines, and the second is by the use
of a vocational expert. Phillips v. Barnhart, 357 F.3d 1232, 1239-40 (11th Cir.
2004); Atha v. Comm’r, Soc. Sec. Admin., 616 F. App’x 931, 933 (11th Cir. 2015).
The claimant bears the burden of proof through step four. Atha, 616 F. App’x
at 933. If the claimant meets this burden, then the burden temporarily shifts to the
Commissioner to establish the fifth step. Id.; 20 C.F.R. § 404.1520(a)(4)(v), (g); 20
C.F.R. § 416.920(a)(4)(v), (g). If the Commissioner presents evidence of other work
that exists in significant numbers in the national economy that the claimant is able
to perform, only then does the burden shift back to the claimant to prove she is unable
to perform these jobs. Atha, 616 F. App’x at 993.
C. Procedural History
Plaintiff applied for a period of disability and disability insurance benefits on
March 12, 2020, alleging disability beginning on March 12, 2020. (Tr. 108, 262-63).
The application was denied initially and on reconsideration. (Tr. 108, 123). Plaintiff
requested a hearing, and on November 19, 2021, a hearing was held before
Administrative Law Judge Sylvia Alonso (“ALJ”).1 (Tr. 63-105). On January 19,
2022, the ALJ entered a decision finding Plaintiff not under a disability from March
12, 2020, through the date of the decision. (Tr. 11-22).
Plaintiff requested review of the decision, but the Appeals Council denied
Plaintiff’s request on August 8, 2022. (Tr. 1-6). Plaintiff filed a Complaint (Doc. 1)
on October 27, 2022, and the case is ripe for review. The parties consented to
proceed before a United States Magistrate Judge for all proceedings. (Doc. 9).
D. Summary of ALJ’s Decision
In this matter, the ALJ found Plaintiff met the insured status requirements of
the Social Security Act through September 30, 2022. (Tr. 13). At step one of the
sequential evaluation, the ALJ found that Plaintiff had not engaged in substantial
gainful activity since March 12, 2020, the alleged onset date. (Tr. 13). At step two,
the ALJ found that Plaintiff had the following severe impairments: “degenerative
disc disease, fibromyalgia, migraines, and obesity.” (Tr. 13). At step three, the ALJ
found that Plaintiff did not have an impairment or combination of impairments that
meets or medically equals the severity of any 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). (Tr. 16).
1 A prior hearing was held on July 23, 2021, but the hearing was not recorded, so a subsequent
hearing was held on November 19, 2021. (Tr. 11).
Before proceeding to step four, the ALJ found that Plaintiff had the following
RFC:
After careful consideration of the entire record, the
undersigned finds that the claimant has the residual functional
capacity to perform light work as defined in 20 [C.F.R.
§] 404.1567(b) except the individual can stand and/or walk for
six hours in an eight-hour workday; can sit for six hours in an
eight-hour workday; can occasionally climb ramps, stairs,
ladders, ropes, and scaffolds; can occasionally stoop, kneel,
crouch, and crawl; can frequently balance on level surfaces and
can occasionally balance on uneven terrain; can tolerate
occasional exposure to wetness; and can have no exposure to
vibration or hazards.
(Tr. 16-17).
At step four, the ALJ determined that Plaintiff was capable of performing her
past relevant work as: (1) a Family Case Worker; and (2) a Case Manager, as actually
and generally performed. (Tr. 21). The ALJ also found that this work does not
require the performance of work-related activities precluded by Plaintiff’s RFC. (Tr.
21).
Alternatively, the ALJ proceeded to step five of the sequential evaluation
process and found that considering Plaintiff’s age (44 years old on the alleged
disability onset date), education (at least high school), work experience, and RFC,
there were jobs that existed in significant numbers in the national economy that
Plaintiff could perform. (Tr. 21). Specifically, the vocational expert testified that a
person with Plaintiff’s limitations could perform such occupations as:
(1) Merchandise marker, DOT 209.587-034, light, SVP 2
(2) Mail sorter, DOT 222.687-022,2 light, SVP 2
(3) Routing clerk, DOT 222.587-038, light, SVP 2
(Tr. 22). The ALJ concluded that Plaintiff had not been under a disability from
March 12, 2020, through the date of the decision. (Tr. 22).
II. Analysis
On appeal, Plaintiff raises four issues:
(1) Whether the ALJ erred in failing to find Plaintiff’s mental impairments
severe and in failing to include relevant limitations in the RFC;
(2) Whether the ALJ erred in failing to include limitations in the RFC for
Plaintiff’s migraines, subjective complaints of pain, and use of a cane;
(3) Whether the ALJ erred in finding Plaintiff could perform work with an
SVP levels of 2 and 7 and past work, given that the SSA informed
Plaintiff that she may not be able to perform her past work but could
perform work requiring only a very short on-the-job training period;
and
(4) Whether the ALJ erred in assessing the opinions of Scott Kaplan,
Psy.D.
(Doc. 16, p. 1).
A. Mental Impairments
Plaintiff argues that the ALJ erred in not finding Plaintiff’s mental
impairments severe. (Doc. 16, p, 12-13). Plaintiff claims that her multiple mild
limitations reflect a severe impairment. (Doc. 16, p. 13). Plaintiff also claims that
2 DOT refers to the Dictionary of Occupational Titles.
even if the ALJ’s error was harmless, the failure to include additional limitations in
the RFC was not. (Doc. 16, p. 15).
At step two, an ALJ considers the severity of a claimant’s impairments. 20
C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An impairment or combination of
impairments is not severe “if it does not significantly limit [a claimant’s] physical or
mental ability to do basic work activities” 20 C.F.R. §§ 404.1522(a), 416.922(a). In
other words, a severe impairment is an impairment or combination thereof that
significantly limits a claimant’s abilities to perform basic work activities. See SSR
85-28, 1985 WL 56856, *4 n.1; 20 C.F.R. §§ 404.1520(c), 404.1522(a), 416.920(c),
416.922(a).
The severity of an impairment “must be measured in terms of its effect upon
ability to work, and not simply in terms of deviation from purely medical standards
of bodily perfection or normality.” McCruter v. Bowen, 791 F.2d 1544, 1547 (11th
Cir. 1986). The impairment must also last or be expected to last for a continuous
period of at least 12 months. 20 C.F.R. §§ 404.1520(a)(4)(ii), 404.1509,
416.920(a)(4)(ii), 416.909. The claimant bears the burden at step two of proving that
she has a severe impairment or combination of impairments. O’Bier v. Comm’r of
Soc. Sec. Admin., 338 F. App’x 796, 798 (11th Cir. 2009).
This inquiry “acts as a filter in that the finding of any severe impairment ... is
enough to satisfy the requirement of step two and allow the ALJ to proceed to step
three.” Ball v. Comm’r of Soc. Sec. Admin., 714 F. App’x 991, 993 (11th Cir. 2018)
(internal quotations omitted). “Nothing requires that the ALJ must identify, at step
two, all of the impairments that should be considered severe.” Heatly v. Comm’r of
Soc. Sec., 382 F. App’x 823, 825 (11th Cir. 2010). If any impairment or combination
of impairments qualifies as “severe,” step two is satisfied and the claim advances to
step three. Gray v. Comm’r of Soc. Sec., 550 F. App’x 850, 852 (11th Cir. 2013)
(citing Jamison v. Bowen, 814 F.2d 585, 588 (11th Cir. 1987)). “[B]eyond the second
step, the ALJ must consider the entirety of the claimant’s limitations, regardless of
whether they are individually disabling.” Griffin v. Comm’r of Soc. Sec., 560 F.
App’x 837, 841-842 (11th Cir. 2014) (internal citations omitted).
With this standard in mind, even if the ALJ should have characterized
Plaintiff’s mental impairments as severe, any error is harmless because the ALJ
characterized other impairments – degenerative disc disease, fibromyalgia,
migraines, and obesity – as severe. (Tr. 13). The ALJ then advanced to step three of
the sequential evaluation. See Ball, 714 F. App’x at 993. With step two satisfied, the
issue then becomes whether the ALJ considered all of Plaintiff’s impairments in
assessing the RFC. She did.
In the decision, the ALJ thoroughly discussed Plaintiff’s mental impairments
when assessing the RFC. The ALJ noted that Plaintiff’s mental impairments were
effectively managed with treatment and medication adjustments. (Tr. 19, 20). The
ALJ also noted that Plaintiff had not been hospitalized for mental impairments, and
the objective medical evidence did not support mental or social limitations. (Tr. 19).
In assessing opinion evidence from medical providers, the ALJ noted that Plaintiff
interacted appropriately, communicated effectively, was capable of many normal
activities of daily living, and was capable of caring for her young grandchild. (Tr.
20). The ALJ also noted that mental status exams performed by Plaintiff’s treating
medical providers were generally unremarkable. (Tr. 20). Further, her treating
mental health provider found Plaintiff’s functioning at work was normal, her self-
care was normal, and her socialization with others was normal. (Tr. 20). The ALJ
also discussed the state agency medical consultants opinions that support the RFC
assessment. (Tr. 20). The ALJ thoroughly considered Plaintiff’s mental impairments
when assessing Plaintiff’s RFC.
Plaintiff also claims that the ALJ did not sufficiently explain why limitations
for Plaintiff’s mental impairment were not included in the RFC relying on Schink v.
Comm’r of Soc. Sec., 935 F.3d 1245, 1251 (11th Cir. 2019). (Doc. 19, p. 6). Schink
is easily distinguishable from this case. In Schink, Plaintiff appealed the denial of his
application for disability benefits. Id. The District Court affirmed the decision. Id.
The Eleventh Circuit reversed, finding good cause did not exist to discount two
treating physicians’ opinions, and substantial evidence did not support a finding that
Plaintiff’s mental impairments were non-severe. Id. Plaintiff claims that the Eleventh
Circuit remanded Schink in part because whether severe or not, the administrative
law judge was required to consider a plaintiff’s mental impairments in the RFC
assessment, but failed to do so. (Doc. 16, p. 16). In Schink – while using superseded
regulations – the Court found that the administrative law judge erred in the RFC
assessment by discussing Schink’s physical impairments and only mentioning his
bipolar disorder with no real discussion of how this mental condition affected the
plaintiff’s RFC. Id. at 1269.
Unlike in Shink, the ALJ here thoroughly discussed Plaintiff’s mental
impairments in assessing the RFC and found that the medical evidence did not
support mental or social limitations. (Tr. 19, 20). Substantial evidence supports the
ALJ’s assessment of Plaintiff’s mental impairments and the RFC assessment.
B. Migraines, Pain, and Use of a Cane
Plaintiff argues that the ALJ failed to include limitations for Plaintiff’s use of
a cane, the effects of her migraine headaches, and her subjective complaints of pain
in the RFC. An individual’s RFC is her ability to do physical and mental work
activities on a sustained basis despite limitations secondary to her established
impairments. Delker v. Comm’r of Soc. Sec., 658 F. Supp. 2d 1340, 1364 (M.D. Fla.
2009). In determining a claimant’s RFC, the ALJ must consider all relevant evidence
including non-severe impairments. Barrio v. Comm’r of Soc. Sec., 394 F. App’x 635,
637 (11th Cir. 2010). Furthermore, the ALJ must “‘scrupulously and conscientiously
probe into, inquire of, and explore for all relevant facts.’” Henry v. Comm’r of Soc.
Sec., 802 F.3d 1264, 1267 (11th Cir. 2015) (quoting Cowart v. Schweiker, 662 F.2d
731, 735 (11th Cir.1981)). At step four, the task of determining a claimant’s RFC
and ability to work rests with the administrative law judge and not with a doctor.
Moore v. Comm’r of Soc. Sec., 649 F. App’x 941, 945 (11th Cir. 2016); see also
Castle v. Colvin, 557 F. App’x 849, 853-54 (11th Cir. 2014), Green v. Soc. Sec.
Admin., 223 F. App’x 915, 924 (11th Cir. 2007).
1. Cane
Plaintiff contends that the use of a cane limits a person’s ability to ambulate
quickly, lift or carry significant weight, and perform postural movements. (Doc. 16,
p. 20). Plaintiff testified that she uses a cane daily, inside the house, going down
stairs, and sometimes outside the house. (Doc. 16, p. 20). And while the ALJ found
Plaintiff’s balance somewhat impaired, Plaintiff argues the ALJ did not include the
use of a cane in the RFC and found Plaintiff’s use of a cane or wheelchair
inconsistent with treatment notes showing Plaintiff’s gait was normal. (Doc. 16, p,
20).3
3 Plaintiff cites one case, Powell v. Astrue, 250 F. App’x 960, 964-65 (11th Cir. 2007), in support
of the proposition that remand is warranted for an ALJ to consider “among other things, the impact
of the claimant’s use of a cane on his RFC.” (Doc. 16, p. 20). This case, however, dealt with an
impairment for incontinence and never mentioned the use of a cane. See Powell, 250 F. App’x at
964-65. The Court also notes that the Commissioner cited SSR 96-9p for the proposition that
Plaintiff did not meet the requirements of this Ruling as it relates to the use of a cane. (Doc. 21, p.
22). SSR 96-9p applies when a plaintiff is limited to less than a full range of sedentary work. See
SSR 96-9p, 1996 WL 374185. By contrast, here, Plaintiff is limited to light (not sedentary) work
In the decision, the ALJ discussed Plaintiff’s allegation that she used a cane
and a wheelchair. (Tr. 17). The ALJ found these allegations inconsistent with the
treatment notes that repeatedly showed Plaintiff’s gait as normal, she had full
strength, and her neurological examinations were unremarkable. (Tr. 19). Thus, the
ALJ considered Plaintiff’s allegations regarding the use of a cane, but found that the
record does not support such use. In essence, Plaintiff invites the Court to reweigh
the evidence, which it cannot do. A court may not decide the facts anew, reweigh
the evidence, or substitute its judgment for that of the Commissioner. Mitchell v.
Comm’r, Soc. Sec. Admin., 771 F.3d 780, 782 (11th Cir. 2014). Even if the evidence
preponderates against the Commissioner’s decision, the Court must affirm if
substantial evidence supports the Commissioner’s decision. Buckwalter v. Acting
Comm’r of Soc. Sec., 5 F.4th 1315, 1320 (11th Cir. 2021).
Here, the ALJ properly considered Plaintiff’s use of a cane and wheelchair,
included sufficient reasons to discount such allegations, and was not required to
include limitations for assistive devices in the RFC. As a result, substantial evidence
supports the ALJ’s RFC assessment.
with some exceptions. (Tr. 16). Thus, SSR 96-9p is inapplicable here. See Ecker v. Comm’r of Soc.
Sec., No. 6:21-cv-352-EJK, 2022 WL 10622380, at *3 (M.D. Fla. Apr. 21, 2022) (collecting
cases).
2. Migraine Headaches
Plaintiff argues that even though the ALJ found Plaintiff’s migraine
headaches to be a severe impairment, he included no relevant limitations for this
impairment in the RFC assessment. (Doc. 16, p. 21). Plaintiff testified that she has
photophobia, a sensitivity to light, associated with her migraines, which occur four
to five time per week. (Doc. 16, p. 21). Plaintiff argues that the ALJ erred in failing
to consider her photophobia and how that affects her ability to sustain attention and
concentration. (Doc. 16, p. 21).
In the decision at step two, the ALJ found Plaintiff’s migraine headaches a
severe impairment, and that migraine headaches cause more than minimal
limitations in her ability to perform work-related activities. (Tr. 13). The ALJ also
found that the limitations from these severe impairments do not preclude all work
activity. (Tr. 13-14). The ALJ recounted that Plaintiff testified that she experienced
four to five migraine headaches a week. (Tr. 19). Still, the ALJ found that the
frequency of her alleged migraine headaches was not supported by the record,
“which contains little evidence of actual treatment for migraines.” (Tr. 19). Other
than Plaintiff’s testimony about migraines – which the ALJ found inconsistent with
the medical evidence – Plaintiff did not cite any medical evidence during the relevant
period that shows actual treatment for migraine headaches. Thus, substantial
evidence supports the ALJ’s reasoning not to include additional limitations in the
RFC for migraine headaches.
3. Subjective Complaints of Pain
Plaintiff argues that the ALJ did not fully account for Plaintiff’s pain in the
RFC. (Doc. 16, p. 22). Generally, a claimant may establish that she is disabled
through her own testimony of pain or other subjective symptoms. Ross v. Comm’r
of Soc. Sec., 794 F. App’x 858, 867 (11th Cir. 2019) (citing Dyer v. Barnhart, 395
F.3d 1206, 1210 (11th Cir. 2005)). In such a case, a claimant must establish:
“(1) evidence of an underlying medical condition and either (2)
objective medical evidence that confirms the severity of the
alleged pain arising from that condition or (3) that the
objectively determined medical condition is of such a severity
that it can be reasonably expected to give rise to the alleged
pain.”
Id. (quoting Dyer, 395 F.3d at 1210).
When evaluating a claimant’s testimony, the ALJ should consider: (1) the
claimant’s daily activities; (2) the location, duration, frequency, and intensity of the
claimant’s pain or other symptoms; (3) precipitating and aggravating factors; (4) the
type, dosage, effectiveness, and side effects of any medication to alleviate pain or
other symptoms; (5) treatment other than medication for relief of pain or other
symptoms; (6) any measures a claimant uses to relieve pain or other symptoms; and
(7) other factors concerning a claimant’s functional limitations and restrictions due
to pain or other symptoms. 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3); Ross v.
Comm’r of Soc. Sec., 794 F. App’x 858, 867 (11th Cir. 2019).
The ALJ should consider these factors along with all the evidence of record.
Ross, 794 F. App’x 867. If the ALJ discredits this testimony, then the ALJ “‘must
clearly articulate explicit and adequate reasons for’ doing so.” Id. (quoting Dyer, 395
F.3d at 1210). The ALJ may consider the consistency of the claimant’s statements
along with the rest of the record to reach this determination. Id. Such findings “‘are
the province of the ALJ,’ and we will ‘not disturb a clearly articulated credibility
finding supported by substantial evidence.’” Id. (quoting Mitchell v. Comm’r of Soc.
Sec., 771 F.3d 780, 782 (11th Cir. 2014)). A decision will be affirmed as long as the
decision is not a “broad rejection which is not enough to enable [a reviewing court]
to conclude that the ALJ considered [the claimant’s] medical condition as a whole.”
Dyer, 395 F.3d at 1211 (quotation and brackets omitted).
In the decision, the ALJ summarized Plaintiff’s allegations of pain. (Tr. 17).
The ALJ recounted that Plaintiff alleged back pain, neck pain, headaches, light
sensitivity, tender points in her back and legs, and right-hand cramping. (Tr. 17).
The ALJ noted that Plaintiff testified that she used medical marijuana and a TENS
unit to manage her pain. (Tr. 17). The ALJ also summarized Plaintiff’s pain
management visits, beginning before the alleged onset date. (Tr. 18). The ALJ noted
that Plaintiff sought treatment for back pain in March 2020 and was prescribed
medication to relieve the pain. (Tr. 18, 697-98).
The ALJ also noted that in February 2021, Plaintiff sought emergency room
treatment for body pain. (Tr. 18, 852). Plaintiff reported that she stopped going to
pain management because the medical provider was reducing her pain medicine
dosage. (Tr. 18, 852). She tried using over-the-counter pain medicines, but they were
not effective. (Tr. 18, 852). Plaintiff characterized the degree of pain at the
emergency room as minimal. (Tr. 852). At the hospital, Plaintiff received pain
medication, her pain improved with medication, and she denied any complaints on
discharge. (Tr. 856).
As to Plaintiff’s subjective complaints, the ALJ found Plaintiff’s medically
determinable impairments could reasonably be expected to cause the alleged
symptoms, but her statements concerning the intensity, persistence, and limiting
effects of these symptoms was not entirely consistent with the medical and other
evidence in the record for the reasons explained in the decision. (Tr. 19). The ALJ
then elaborated:
As for the claimant’s statements about the intensity,
persistence, and limiting effects of her symptoms, they are
inconsistent because the objective medical evidence indicates
the claimant’s pain levels have been effectively managed by
her treating medical providers with routine follow up and
medication. Her BMI is now below 30. The frequency of her
alleged migraines is not supported by the record, which
contains little evidence of actual treatment for migraines. Her
allegation of use of a cane or a wheelchair is inconsistent with
treatment notes that repeatedly described the claimant’s gait as
normal. She has full strength and neurological examinations
have been unremarkable. The symptoms of the claimant’s
mental impairments have been effectively managed with
treatment and medication adjustments. The claimant has not
been hospitalized for a mental impairment. The objective
medical evidence does not support mental or social limitations.
The claimant’s limitations would not preclude the performance
of light work or her past relevant sedentary work.
(Tr. 17).
The ALJ supported her findings by stating that Plaintiff statements are
inconsistent with the objective medical evidence. The ALJ did not stop there. The
ALJ continued that Plaintiff’s pain levels have been effectively managed by her
treating medical providers with routine follow-ups for medication. The ALJ clearly
articulated reasons in assessing Plaintiff’s subjective complaints of pain, and this
assessment is supported by the medical records in evidence. Thus, substantial
evidence supports the ALJ’s assessment of Plaintiff’s subjective complaints.
C. Explanation of Determination
Plaintiff contends that the SSA repeatedly advised her that her condition may
limit her ability to perform her past work, but she could perform work which required
only a very short, on-the-job training period. (Doc. 16, p. 26 (citing Tr. 149, 170,
172)). Plaintiff argues that these types of jobs equate to an SVP 1, not an SVP 2 or
7 job, such as her past relevant work or other jobs listed by the ALJ. (Doc. 16, p. 26-
27).
Explanations of Determination are prepared by disability examiners. Martinez
v. Kijakazi, No. 8:20-cv-1025-TPB-AEP, 2021 WL 4482616, at *14 (M.D. Fla. Aug.
23, 2021), report and recommendation adopted, No. 8:20-cv-1025-TPB-AEP, 2021
WL 4478248 (M.D. Fla. Sept. 30, 2021) (citing SSA Program Operations Manual
System (“POMS”) DI 24501.001B(1)(d)(1)-(2)). “Notably, the SSA considers
findings made by a state agency disability examiner at a previous level of
adjudication about a medical issue, vocational issue, or the ultimate determination
about whether a claimant is disabled to constitute evidence that is ‘inherently neither
valuable nor persuasive.’” Id. (citing 20 C.F.R. § 404.1520b(c)(2)). And under the
regulations, an ALJ need not provide any analysis about how she considered such
evidence in rendering a decision. Id. (citing 20 C.F.R. § 404.1520b(c)). Thus, the
ALJ was not required to consider the Explanations of Determination in rendering the
decision.
D. Scott Kaplan, Psy.D.’s Opinions
Plaintiff argues that the ALJ failed to properly consider the supportability and
consistency factors when finding Dr. Kaplan’s opinions mainly unpersuasive. (Doc.
16, p. 31-32). Dr. Kaplan evaluated Plaintiff twice. The first evaluation occurred on
September 24, 2020, and was based on a referral to assist in a determination of
eligibility for Social Security Disability benefits. (Tr. 789-91). The second
evaluation occurred on April 21, 2021, and was based on a referral to conduct a
General Personality Evaluation to see if she was fit psychologically and emotionally
to adequately care for her grandchild, over whom she was attempting to gain custody
and eventually adopt. (Doc. 16, p. 29; Tr. 77, 988-99).
The regulations for disability cases filed after March 27, 2017 – such as this
one – changed and an ALJ no longer defers or gives any specific evidentiary weight
to a medical opinion. 20 C.F.R. § 404.1520c(a), 20 C.F.R. § 416.920c(a). Thus, an
ALJ no longer uses the term “treating source” and does not defer or give specific
evidentiary weight, including controlling weight, to any medical opinion or prior
administrative medical finding. Torres v. Comm’r of Soc. Sec., No. 6:19-cv-1662-
ORL-PDB, 2020 WL 5810273, at *2 (M.D. Fla. Sept. 30, 2020) (citing 20 C.F.R.
§ 404.1520c(a)).
Instead, an ALJ assesses the persuasiveness of a medical source’s opinions
given these five factors, with the first two being the most important: (1)
supportability; (2) consistency; (3) relationship with the claimant, including the
length, frequency, and purpose of the examining and any treatment relationship; (4)
specialization; and (5) other factors, such as the source’s familiarity with other
evidence concerning the claim, that tend to support or contradict the medical
opinion. 20 C.F.R. § 404.1520c(a)-(c); 20 C.F.R. § 416.920c(a)-(c). An ALJ may
but is not required to explain how he considers factors other than supportability and
consistency, unless two or more opinions are equally persuasive on the same issue.
20 C.F.R. § 404.1520c(b)(2); 20 C.F.R. § 416.920c(b)(2).
For supportability, the revised rules provide: “The more relevant the objective
medical evidence and supporting explanations presented by a medical source are to
support his or her medical opinion(s) or prior administrative medical finding(s), the
more persuasive the medical opinions or prior administrative medical finding(s) will
be.” 20 C.F.R. § 404.1520c(c)(1); 20 C.F.R. § 416.920c(c)(1). For consistency, the
revised rules provide: “The more consistent a medical opinion(s) or prior
administrative medical finding(s) is with the evidence from other medical sources
and nonmedical sources in the claim, the more persuasive the medical opinion(s) or
prior administrative medical finding(s) will be.” 20 C.F.R. § 404.1520c(c)(2); 20
C.F.R. § 416.920c(c)(2).
The new regulations also differentiate between medical opinions and “other
medical evidence.” 20 C.F.R. §§ 404.1513(a)(2)-(3), 416.913(a)(2)-(3). “A medical
opinion 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 limitations or
restrictions” in the abilities listed in paragraphs (a)(2)(i) through (iv). 20 C.F.R.
§§ 404.1513(a)(2), 416.913(a)(2). “Other medical evidence is evidence from a
medical source that is not objective medical evidence or a medical opinion, including
judgments about the nature and severity of your impairments, your medical history,
clinical findings, diagnosis, treatment prescribed with response, or prognosis.” 20
C.F.R. §§ 404.1513(a)(3), 416.913(a)(3).
In the decision, the ALJ summarized Dr. Kaplan’s two opinions. (Tr. 19-20).
Scott Kaplan, Psy.D., opined the claimant is likely to
experience mild impairment understanding one- and two-step
tasks, moderate impairment understanding complex tasks, and
moderate to marked impairment with getting along in social
settings and with adapting (Ex. 11F). The claimant went to see
Dr. Kaplan a second time in connection of her obtaining
custody of her grandson. At this examination, Dr. Kaplan noted
the claimant interacted appropriately and communicated
effectively. He opined the claimant is capable of many normal
activities of daily living and she is capable of caring for her
grandchild.
(Tr. 19-20).
In evaluating Dr. Kaplan’s opinions, the ALJ found:
Dr. Kaplan’s opinion that the claimant is capable of activities
of daily living and of caring for her grandchild is persuasive
because it is consistent with and supported by the objective
medical evidence, which indicates the symptoms of the
claimant’s mental impairments have been effectively managed
with treatment and medication adjustments. The remainder of
Dr. Kaplan’s opinion is unpersuasive because it is inconsistent
with and not supported by the objective medical evidence.
Mental status exams performed by the claimant’s treating
medical providers have been generally unremarkable. Dr.
Kaplan’s opinion appears to be based more on the claimant’s
subjective reports than objective findings. The claimant has not
been hospitalized for a mental impairment. The claimant’s
mental impairments do not cause moderate or marked
limitations. The objective medical evidence does not support
mental or social limitations.
(Tr. 20).
Plaintiff first argues that in finding Dr. Kaplan’s opinions mainly
unpersuasive, the ALJ only found them unsupported because they appear to be based
mainly on Plaintiff’s subjective reports rather than objective findings. (Doc. 16, p.
31). At the first evaluation, Plaintiff contends Dr. Kaplan conducted a general
clinical evaluation with a mental status exam that included a digit span test. (Doc.
16, p. 31). At the second evaluation, Plaintiff contends Dr. Kaplan conducted a
clinical interview, mental status examination, and an incomplete sentence blank test.
(Doc. 16, p. 31). Plaintiff argues that Dr. Kaplan based his opinions, at least in part,
on these objective tests.
In both evaluations, as the ALJ noted, Dr. Kaplan relied a great deal on
Plaintiff’s subjective statements and complaints especially when determining
whether Plaintiff had limitations. At the first evaluation, Dr. Kaplan conducted a
mental status examination, and found Plaintiff: oriented to person, place, time, and
situation; had clear and logical speech and thought processes; had no evidence of
any hallucinations, delusions, or illusions; had adequately developed gross and fine
motor coordination; was cooperative; had variable concentration and memory
functions based on a Digit Span test; and had a depressed and anxious mood and
affect. (Tr. 790). He determined that Plaintiff was competent to manage her own
funds. (Tr. 791). He then relied on Plaintiff’s subjective statements for much of the
remaining evaluation, such as Plaintiff presenting with sleep and appetite
disturbance, reduced energy level, crying spells, hopelessness, helplessness, and
anhedonia. (Tr. 790). In his discussion, he started with “[b]ased on the present test
results,” but then mainly discussed Plaintiff’s statements as to her mental health
history, such as her mental health treatment, prior diagnoses, and psychotropic
medications, rather than relying on any objective testing. (Tr. 791).
In the second evaluation, Dr. Kaplan listed three tests: a clinical interview;
mental status examination; and Incomplete Sentence Bank Test – Adult Form. (Tr.
988). While he had a section on test results, Dr. Kaplan basically summarized
Plaintiff’s statements as to her history of mental illness and her symptoms, as he did
in the first evaluation. (Tr. 988). His evaluation findings mainly mirrored his first
evaluation. (Tr. 988). He found Plaintiff capable of many normal age-appropriate
activities of daily living, could interact appropriately and communicate effectively,
found her concentration and task persistence were somewhat variable, and found she
experienced depression and anxiety. (Tr. 989). Importantly, he repeatedly found
Plaintiff able to care for her grandchild. (Tr. 989).
For both examinations, Dr. Kaplan performed some testing, but Dr. Kaplan
also relied heavily on Plaintiff’s subjective statements for a history of her mental
impairments and for her reports on sleep, appetite, energy level, crying spells,
hopelessness, helplessness, and anhedonia. Substantial evidence supports the ALJ’s
supportability finding that Dr. Kaplan’s opinion relies more on Plaintiff’s subjective
reports rather than on objective testing.
Plaintiff next argues that the ALJ erred in finding Dr. Kaplan’s opinion
inconsistent with and not supported by mental status exams performed by Plaintiff’s
treating medical providers. (Doc. 16, p. 32). As to the consistency of Dr. Kaplan’s
opinion, the ALJ found it inconsistent with the generally unremarkable metal status
exams performed by Plaintiff’s treating medical providers. (Tr. 20). In the next
paragraph, the ALJ cited Dr. Mirsajadi’s treating records, which showed among
other things, Plaintiff was cooperative, pleasant, attentive, with normal affect, and
had clear thought processes, oriented times 4, intact memory, normal judgment,
good insight, and good concentration, or in other words, a generally unremarkable
mental status examination. (Tr. 20, 825). As the ALJ noted, Dr. Mirsajadi found
Plaintiff had both a normal ability to function at work, and a normal ability to take
care of herself. (Tr. 20, 107, 793, 795, 797, 825, 827, 991).
Plaintiff claims that Abdol-Amir Mirsajadi, M.D. diagnosed at times that
Plaintiff was anxious, depressed, overwhelmed, labile, apprehensive, panicky,
worried, and stressed. (Doc. 16 p. 32).4 Plaintiff also claims that Ahmad Jingo, M.D.
assessed Plaintiff with chronic post-traumatic stress disorder (“PTSD”) as did Dr.
4 In support of her argument, Plaintiff cited a record for an exam performed by Dr. Mirsajadi dated
after the ALJ’s decision. (See (Doc. 16, p, 32 (citing Tr. 61)).
Mirsajadi. (Doc. 16, p. 32). Finally, Plaintiff claims that Dr. Pierce Arnold diagnosed
Plaintiff with an abnormal mental status. (Doc. 16, p. 32). But these diagnoses alone
are insufficient and instead a plaintiff must show the effect of the impairment on her
ability to work. See Wind v. Barnhart, 133 F. App’x 684, 690 (11th Cir. 2005) (citing
McCruter v. Bowen, 791 F.2d 1544, 1547 (11th Cir.1986)). Plaintiff has not done so
here. Plus, the ALJ noted many instances of generally unremarkable examinations
even with these diagnoses.
The ALJ properly considered the supportability and consistency of Dr.
Kaplan’s opinion when finding them persuasive as to Plaintiff’s activities of daily
living and taking care of her grandchild, and in finding them unpersuasive as to the
rest of the opinions because they were unsupported by and inconsistent with the
medical evidence of record. Substantial evidence supports the ALJ’s assessment of
Dr. Kaplan’s opinions.
III. Conclusion
For the reasons discussed above, the Court finds that the decision of the
Commissioner is supported by substantial evidence and the Commissioner applied
the correct legal standard. The decision of the Commissioner is AFFIRMED. The
Clerk of Court is directed to enter judgment consistent with this opinion, terminate
all deadlines, and close the case.
DONE and ORDERED in Fort Myers, Florida on March 11, 2024.
sou TLAS N. ce
UNITED STATES MAGISTRATE JUDGE
Copies furnished to:
Counsel of Record
Unrepresented Parties