ULEE v. KIJAKAZI

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UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

ONEDA ULEE,

Plaintiff,

vs. Case No.: 4:20cv137/EMT

KILOLO KIJAKAZI,

Acting Commissioner of Social Security,1

Defendant.

__________________________________/

MEMORANDUM DECISION AND ORDER

This case has been referred to the undersigned magistrate judge for disposition

pursuant to the authority of 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73, based on the

parties’ consent to magistrate judge jurisdiction (see ECF No. 12). It is now before

the court pursuant to 42 U.S.C. § 405(g) of the Social Security Act (Act) for review

of a final determination of the Commissioner of the Social Security Administration

(Commissioner) denying Plaintiff’s applications for disability insurance benefits

(DIB) under Title II of the Act, 42 U.S.C. §§ 401–34, and supplemental security

income (SSI) under Title XVI of the Act, 42 U.S.C. §§ 1381–83. Upon review of

the record before the court, I conclude the findings of fact and determinations of the

1 Kilolo Kijakazi became the Acting Commissioner of the Social Security Administration (SSA)

on July 9, 2021. Pursuant to Fed. R. Civ. P. 25(d), Ms. Kijakazi is automatically substituted for

Andrew Saul as the Defendant in this case.

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Commissioner are supported by substantial evidence in the record and application

of proper legal standards and that the decision of the Commissioner, therefore,

should be affirmed.

ISSUES ON REVIEW

Plaintiff raises two issues on appeal, arguing the ALJ erred in (1) “accept[ing]

the non-treating, old opinion of consultative [physical] examiner Dr. Slade,” and (2)

“failing to adequately consider Dr. Kline’s opinion, which indicated that Plaintiff’s

past work was precluded” from a psychological standpoint (ECF No. 18 at 1).

PROCEDURAL HISTORY

On October 24, 2017, Plaintiff filed applications for DIB and SSI, alleging

disability beginning June 1, 2017, based on problems with her knee, back, and

hand/wrist/arm, as well as diabetes, high blood pressure, depression, and carpal

tunnel syndrome (tr. 146–47, 157–58, 169–70).2 The applications were denied

initially and on reconsideration (tr. 169–70, 201–02). Plaintiff appeared for a

hearing before an Administrative Law Judge (ALJ) on June 4, 2019 (tr. 54–91). On

July 3, 2019, the ALJ issued a decision finding Plaintiff not disabled under the Act

2 The administrative record, as filed by the Commissioner, consists of 828 consecutively

numbered pages (see ECF No. 16). References to the record will be by “tr.,” for transcript,

followed by the page number. The page numbers refer to those found on the lower right-hand

corner of each page of the transcript, as opposed to those assigned by the court’s electronic

docketing system or any other page numbers that may appear.

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(tr. 11–37). Plaintiff petitioned the Appeals Council for review of the ALJ’s

decision, and the Appeals Council denied the request (tr. 139–44). The ALJ’s

decision thus became the final determination of the Commissioner subject to review

in this court. See Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1262 (11th

Cir. 2007); see also Walker v. Soc. Sec. Admin., Comm’r, No. 19-15039, 2021 WL

503280, at *3 (11th Cir. Feb. 11, 2021) (“because the Commissioner has delegated

h[er] authority to make the finding at the hearing level to an administrative law

judge, the finding is effectively reserved to the administrative law judge”).

FINDINGS OF THE ALJ

In his written decision dated July 3, 2019 (tr. 11–36), the ALJ made the

following findings pertinent to the issues raised in this appeal:

• Plaintiff has not engaged in substantial gainful activity since June 1, 2017, the

alleged onset date (id.).

• Plaintiff has the following severe impairments: osteoarthritis and obesity (id.).

• 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. 19).

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• Plaintiff has the residual functional capacity (RFC) to perform the full range

of medium work as defined in 20 C.F.R. §§ 404.1567(c) and 416.967(c) (tr.

22).

• Plaintiff is capable of performing past relevant work as a preparation cook,

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

by Plaintiff’s RFC (tr. 33).

• Plaintiff has not been under a disability, as defined in the Act, from June 1,

2017, through July 3, 2019, the date of the decision (tr. 36–37).

STANDARD OF REVIEW

A federal court reviews the “Commissioner’s decision to determine if it is

supported by substantial evidence and based upon proper legal standards.” Lewis

v. Callahan, 125 F.3d 1436, 1439 (11th Cir. 1997); see also Carnes v. Sullivan, 936

F.2d 1215, 1218 (11th Cir. 1991) (“[T]his Court may reverse the decision of the

[Commissioner] only when convinced that it is not supported by substantial evidence

or that proper legal standards were not applied.”). Substantial evidence is “‘such

relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.’” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol.

Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). “Substantial evidence is

something ‘more than a mere scintilla, but less than a preponderance.’” Dyer v.

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Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005) (quoting Hale v. Bowen, 831 F.2d

1007, 1011 (11th Cir. 1987)). Even if the evidence preponderates against the

Commissioner’s decision, the decision must be affirmed if supported by substantial

evidence. Sewell v. Bowen, 792 F.2d 1065, 1067 (11th Cir. 1986).

When reviewing a Social Security disability case, the court “‘may not decide

the facts anew, reweigh the evidence, or substitute [its] judgment for that of the

[Commissioner.]’” Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)

(quoting Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983)); see also

Hunter v. Soc. Sec. Admin., Comm’r, 808 F.3d 818, 822 (11th Cir. 2015) (“In

determining whether substantial evidence supports a decision, we give great

deference to the ALJ’s factfindings.”) (citing Black Diamond Coal Min. Co. v. Dir.,

OWCP, 95 F.3d 1079, 1082 (11th Cir. 1996)). A reviewing court also may not look

“only to those parts of the record which support the ALJ” but, instead, “must view

the entire record and take account of evidence in the record which detracts from the

evidence relied on by the ALJ.” Tieniber v. Heckler, 720 F.2d 1251, 1253 (11th

Cir. 1983). Review is deferential to a point, but the reviewing court conducts what

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has been referred to as “an independent review of the record.” Flynn v. Heckler,

768 F.2d 1273 (11th Cir. 1985).3

The Act defines disability as an “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).

To qualify as a disability, the physical or mental impairment must be so severe that

the plaintiff not only is unable to do her previous work “but cannot, considering [her]

age, education, and work experience, engage in any other kind of substantial gainful

work which exists in the national economy[.]” 42 U.S.C. § 423(d)(2)(A). An

individual claiming Social Security disability benefits must prove she is disabled.

Adams v. Comm’r, Soc. Sec. Admin., 586 F. App’x 531, 533 (11th Cir. 2014).

Pursuant to 20 C.F.R. § 404.1520(a)(4) (2012), the Commissioner analyzes a

disability claim in five steps.4 “Throughout the process, the burden is on the

3 The Eleventh Circuit not only speaks of an independent review of the administrative record, but

it also reminds us that it conducts a de novo review of the district court’s decision on whether

substantial evidence supports the ALJ’s decision. See Ingram, 496 F.3d at 1260; Wilson v.

Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002).

4 In general, the legal standards applied are the same whether a claimant seeks DIB or SSI, but

separate, parallel statutes and regulations exist for DIB and SSI claims (see 20 C.F.R. §§ 404.1520,

416.920 (2012)). Citations in this Memorandum Decision and Order thus should be considered

to incorporate the appropriate parallel provisions. The same applies to citations of statutes or

regulations found in quoted court decisions.

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claimant to introduce evidence in support of her application for benefits.” Adams,

586 F. App’x at 533. The five steps are as follows:

1. If the claimant is performing substantial gainful activity, she is not

disabled.

2. If the claimant is not performing substantial gainful activity, her

impairments must be severe before she can be found disabled.

3. If the claimant is not performing substantial gainful activity and she has

severe impairments that have lasted or are expected to last for a continuous period

of at least twelve months, and if her impairments meet or medically equal the criteria

of any impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, the claimant

is presumed disabled without further inquiry.

4. If the claimant’s impairments do not prevent her from performing past

relevant work, she is not disabled.

5. Even if the claimant’s impairments prevent her from performing past

relevant work, if other work exists in significant numbers in the national economy

that accommodates the claimant’s RFC and vocational factors, she is not disabled.5

5 If the claimant meets her burden at step four, the burden shifts to the Commissioner at step five

to show the existence of other jobs in the national economy which, given the claimant=s

impairments, the claimant can perform. MacGregor v. Bowen, 786 F.2d 1050, 1052 (11th Cir.

1986).

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At step five (or step four in cases in which the ALJ decides a claimant can

perform past work), the ALJ formulates an RFC through interpretation of the

medical evidence and the claimant’s subjective complaints, based on the

impairments identified at step two. See 20 C.F.R. §§ 404.1520(a)(4),

416.920(a)(4) (2012). “[R]esidual functional capacity is the most [a claimant] can

still do despite [the claimant’s] limitations.” 20 C.F.R. §§ 404.1545(a)(1),

416.945(a)(1) (2012). The ALJ relies on the RFC to make the ultimate vocational

determination required by step five.

FACT BACKGROUND6

Plaintiff was fifty-five years old on the alleged onset date (tr. 146). She had

a tenth grade education and past work as a preparation cook (tr. 66, 86). At the

initial level, Plaintiff alleged disability due to problems with her knee, back, and

6 The recitation of facts set forth below is derived from the administrative record and testimony at

the hearing before the ALJ. Moreover, although the timeframe relevant to Plaintiff’s claim for

DIB is June 1, 2017 (date of alleged onset), through July 3, 2019 (date of the ALJ’s decision), and

the timeframe relevant to Plaintiff’s claim for SSI is October 24, 2017 (date she applied for SSI),

through July 3, 2019, the undersigned addresses evidence predating the alleged onset date,

recognizing it is of limited relevance. While it is true that in some cases records predating the

alleged disability onset date are not relevant to the ALJ’s analysis, in other cases, such records

may be. Here, the ALJ considered evidence predating the alleged onset date. See Carmickle v.

Astrue, 533 F.3d 1155, 1165 (9th Cir. 2008) (evidence which predates the alleged period of

disability may be of limited relevance); Lackey v. Barnhart, 127 F. App’x 455, 458 (10th Cir.

2005) (ALJ should not ignore medical reports simply because they predate the alleged onset of

disability); Hamlin v. Barnhart, 365 F.3d 1208, 1223 n.15 (10th Cir. 2004) (evidence that predates

the alleged onset date may be relevant to claimant’s medical history).

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hand/wrist/arm, including carpal tunnel syndrome, as well as diabetes, high blood

pressure, and depression (tr. 23). At the reconsideration level, Plaintiff asserted

increasing back pain (id.). Plaintiff alleged the impairments were causing finger

cramps and constant knee and low back pain, radiating into the right hip, along with

bilateral arm pain that was worse in the right hand (id.).

On February 24, 2015, Plaintiff saw Susan Horton, A.R.N.P. at Jefferson

Health Department, for a routine, follow-up examination (tr. 679–81).7 The

treatment notes reflect tenderness to the knees bilaterally and pain in the lower

posterior leg (tr. 679). Plaintiff was in no apparent distress and had an appropriate

mood and affect with no gross motor dysfunction (tr. 679–80). Plaintiff refused

prescriptions and imaging, and Horton provided Plaintiff with information regarding

national health insurance (tr. 680).

One month later, on March 24, 2015, Plaintiff returned to Jefferson Health

Department complaining of pain in both knees and the left hand (tr. 676). She said

she had experienced worsening bilateral knee pain for several years and could not

7 Although the record contains medical records pre-dating February 24, 2015, Plaintiff does not

rely on treatment records prior to that date. The court thus will begin its recitation of Plaintiff’s

medical history with treatment notes from the February 24, 2015, visit. See ECF No. 17 (advising

the parties they “must file and serve a memorandum setting forth concisely the basis for affirming

or reversing the final decision of the Commissioner and a detailed analysis of the administrative

record, with citation of authorities in support of the party’s position and to the administrative

record”) (emphasis in original).

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afford x-rays (tr. 677). She reported that over-the-counter medications did not

provide relief, but she again refused prescriptions (tr. 678). Plaintiff’s mood and

affect were appropriate, and there was no gross motor dysfunction (id.). On

examination, Horton observed bilateral knee tenderness with crepitus and left hand

tenderness (id.). She noted a history of left thumb trigger finger (id.). Horton

initiated a We Care Referral for x-rays (id.).

Plaintiff next saw Horton on April 29, 2015, again complaining of left hand

and bilateral knee pain (tr. 672–73). Plaintiff apparently did not respond when

asked to rate the severity of her pain (tr. 672). Notes reflect tenderness to the left

hand and knees but a steady gait (tr. 673). Horton ordered lab work due to

complaints of pain in the left hand (tr. 674). Plaintiff complained of worsening

depression despite taking Celexa (id.). She was in no apparent distress, however,

and had an appropriate mood and affect with no gross motor dysfunction (tr. 673).

Horton switched Plaintiff from Celexa to Paxil to treat depression (tr. 674).

When Plaintiff saw Horton on May 27, 2015, for a routine follow-up

examination, she rated her pain a zero out of ten (tr. 669–70). She nevertheless

complained of pain in the left hand and knees, and Horton observed tenderness in

those locations (id.). Horton advised Plaintiff that We Care required further

documentation before it would perform imaging and encouraged Plaintiff to provide

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the information and also to obtain health insurance (tr. 670–71). Plaintiff requested

pain medication (tr. 671). She denied depression, was in no apparent distress, and

again had an appropriate mood and affect with no gross motor dysfunction (tr. 669–

70).

Plaintiff saw Horton on June 17, 2015, for dental problems (tr. 667–68).

Plaintiff’s pain level was still a zero (tr. 667). The notes reflect no joint

abnormalities or swelling and full range of motion with 5/5 muscle strength in all

extremities (id.). Plaintiff was in no apparent distress and exhibited an appropriate

mood and affect with no gross motor dysfunction (tr. 668).

Left hand x-rays from June 22, 2015, revealed scattered, relatively mild

degenerative changes with findings most pronounced at the distal interphalangeal

joints, especially the fifth finger (tr. 732). Bilateral knee x-rays performed the same

day revealed medial lateral joint space loss with similar, but less pronounced,

findings at each retro patellar joint space but no fracture dislocation or suprapatellar

joint effusion (tr. 733). The impression was degenerative changes (id.).

On August 6, 2015, Plaintiff saw Horton for right jaw pain (tr. 664–65). She

reported pain at a level four (tr. 664). As usual, she was in no apparent distress and

had a normal mood and affect with no gross motor dysfunction (tr. 665).

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On September 18, 2015, George Slade, M.D., conducted a consultative

physical examination of Plaintiff (tr. 553–64). Plaintiff reported low back pain

radiating down the right leg following a 2006 motor vehicle accident (tr. 553). She

also reported bilateral knee and hand pain with a tingling and shocking sensation in

the hands (id.). She had a straight leg raise of eighty-five degrees in both the sitting

and supine positions (tr. 554). She complained of depression with past thoughts of

suicide, for which she took citalopram (tr. 553).

Dr. Slade indicated it was “difficult to obtain” information from Plaintiff

because of severe pain in Plaintiff’s left eye at the time of the examination, which

distracted Plaintiff (id.). Dr. Slade assessed acute corneal ulcer or abrasion with

conjunctivitis, which he characterized as an “ocular emergency” to be resolved on

September 23; back pain without objective abnormality; bilateral carpal tunnel

syndrome without motor involvement; bilateral knee pain with equivocal effusion

of the left knee without ligamentous laxity or abnormal knee exam; diabetes mellitus

for the past twenty years; tingling paresthesia of extremities without objective

sensory changes (including hypoactive Achilles reflexes suggesting an evolving

neuropathy); controlled hypertension; and obesity (tr. 554).

On September 21, 2015, Robert Kline, III, Psy.D., conducted a consultative

psychological examination of Plaintiff (tr. 569). Dr. Kline noted Plaintiff did not

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maintain friendships outside of family but enjoyed fishing and going to church (tr.

570). Plaintiff indicated she had difficulty sleeping—both falling asleep and

staying asleep (id.). She tended to her own hygiene, but her grandchildren

performed household chores and maintenance (id.). Plaintiff reported that

citalopram was helpful in controlling symptoms of depression but that she still had

breakthrough depression and anxiety (tr. 571).

Dr. Kline noted that during the course of the interview, Plaintiff generally

maintained fair to minimally adequate eye contact (id.). He described Plaintiff as

sullen and disinterested, presenting with a flat and dysthymic affect, but not overly

defiant or defensive (id.). Dr. Kline indicated the conversation consisted of Plaintiff

responding to direct questions and stated there were no instances of spontaneous

speech (id.). According to Dr. Kline, Plaintiff’s speech was “slow but normal in

rate and tone, poorly articulated, but readily understood” (id.).

Dr. Kline found Plaintiff’s thought expression generally rational and logical,

although simple and concrete (id.). He observed no loosening of associations,

rambling speech, or delusional thinking, and Plaintiff’s verbal structure was logical

and relevant (id.). Plaintiff was fully oriented, able to attend to the interview

without distraction, and showed no significant decline in attention during the course

of the interview (id.). She was easily able to identify four common items, although

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she was unable to spell the word “world” forward or backward (tr. 571). Plaintiff

“denied significant or bothersome memory problems” and was able to remember

three simple words after latency periods of one, five, and fifteen minutes without

difficulty (id.). Dr. Kline noted no deficits with regard to posture or gait, no unusual

mannerisms or repetitive gestures, and appropriate motor activity (id.). Dr. Kline

assessed recurrent, moderate major depressive disorder but opined Plaintiff did not

“appear to have an emotional or psychiatric issue that would preclude her from

performing simple, repetitive tasks, remembering and following directions, or

interacting appropriately with coworkers, supervisors, and the public” (tr. 571–72).

Dr. Kline completed a Medical Source Statement of Ability to Do Work-

Related Activities (Mental) on September 28, 2015 (tr. 575–77). Dr. Kline

indicated Plaintiff had marked limitation in understanding, remembering, and

carrying out complex instructions; making judgments on complex work-related

decisions; and responding appropriately to usual work situations and changes in

routine work setting (tr. 575–76). He indicated moderate limitation in carrying out

simple instructions; making judgments on simple work-related decisions; and

interacting appropriately with the public, supervisors, and coworkers (id.).

In response to an inquiry from the SSA, Dr. Kline later clarified, by letter

dated November 24, 2015, that he intended to indicate that Plaintiff was

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“experiencing depressive symptoms that will likely have a noticeable negative

impact on her functioning” (tr. 583). He explained he intended to “indicate that

[Plaintiff’s] mood issues [would] interfere with her functioning” in the areas of

“mental flexibility, focus, concentration, memory and completion of rote behaviors,

as well as motivation” but not that “her mood symptoms [would] preclude her

capabilities in these areas” (id.). Dr. Kline noted he “did not indicate her issues are

‘extreme’ in any of the areas” but felt “her impairment [was] more significant than

would be indicated by a finding of ‘moderate’ which is defined on the form as ‘able

to function satisfactorily’” (id.). Dr. Kline opined Plaintiff’s “functioning in a

competitive occupational capacity [would] be limited [because Plaintiff] may not be

able to meet the limitations set forth by some employers” but that Plaintiff “is NOT

incapable of being successful in her occupational pursuits” (id.) (emphasis in

original).

On May 28, 2016, Plaintiff visited the emergency room, complaining of pain

in the back, knee, and upper right leg that was “Mild (-moderate)” (tr. 593).

Bending, moving, twisting, and walking exacerbated the pain (id.). Plaintiff

reported that a burning pain in her upper right leg had recently worsened (tr. 594).

The provider, Dr. Warren R. Blount, observed mild lumbar paraspinal tenderness

and lumbar spasm (tr. 597). Imaging of the lumbar spine showed normal vertebral

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heights and alignment at all levels and no fracture or malalignment (tr. 602). Dr.

Blount assessed chronic low back pain with right-sided sciatica and bilateral chronic

knee pain, for which he prescribed Ultram, Robaxin, and meloxicam (tr. 599).

Plaintiff saw Dannette Turner, A.R.N.P. at Jefferson Health Department, on

June 9, 2016, for follow-up and to review lab results (tr. 655, 658). Plaintiff

complained of back and knee pain but reported relief “at intervals” since presenting

to the emergency room (tr. 655). She rated the pain, which treatment notes indicate

caused slow movement, an eight out of ten (tr. 655, 658). Plaintiff also reported

muscle/joint problems for the past year and pain and stiffness for the past three

weeks (tr. 655). Turner indicated there was abnormal curvature—kyphosis—of the

spine but no joint abnormalities or swelling (tr. 657). Plaintiff denied depression,

was in no apparent distress, and had an appropriate mood and affect, good eye

contact, logical thought process, appropriate thought content, and intact short- and

long-term memory (tr. 656–58). She was able to follow directions and

demonstrated no gross motor dysfunction and an appropriate gait (tr. 658). With

regard to depression, Turner noted paroxetine seemed to be helping; she also noted

meloxicam “help[ed] a little” for pain (tr. 659). Turner encouraged Plaintiff to

purchase knee supports, which Plaintiff could “find at [a] dollar store or Walmart,”

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and use warm compresses, as needed; she assessed uncontrolled diabetes,

osteoarthritis of multiple joints, and depressive disorder (tr. 658–59).

Plaintiff saw Turner again on September 8, 2016, for a follow-up examination

and medication refills (tr. 646, 649). Plaintiff reported nerve pain in the hands and

feet, which she rated an eight out of ten (tr. 646). Treatment notes indicate a history

of depression and arthritis (id.). Plaintiff apparently reported muscle/joint problems

and stiffness for the past year but denied muscle pain (id.). The notes reference

back and knee pain but indicate no joint abnormalities and full range of motion with

5/5 muscle strength in all extremities (tr. 648). Plaintiff was in no apparent distress,

denied depression, and had an appropriate mood with normal speech, logical thought

process, appropriate thought content, and intact short-term memory (tr. 647–49).

Turner noted Plaintiff was taking paroxetine for depression, which seemed to be

helping (tr. 649). Turner assessed depressive disorder, osteoarthritis of multiple

joints, hypertension, uncontrolled diabetes, peripheral neuropathy, and vitamin D

deficiency but found no functional impairment (tr. 649–50).

Plaintiff next saw Turner on January 5, 2017, to review lab results and for

medication refills (tr. 637, 640). Turner recorded a history of depression, arthritis,

back pain, vitamin D deficiency, and hyperlipidemia (tr. 637). Plaintiff reported

muscle/joint pain and stiffness, including in her back; nerve pain/tingling and

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numbness to the hands and feet; and depression (tr. 637–38, 640). She complained

of back pain, which she rated an eight, and said she had constant knee pain (tr. 638).

She had no joint abnormalities and full range of motion with 5/5 muscle strength in

all extremities (tr. 637, 639). Plaintiff requested pain medication (tr. 642). Turner

decided to try Plaintiff on Neurontin and increase the dose of meloxicam (tr. 640).

Plaintiff again was in no apparent distress and had an appropriate mood and affect

with no gross motor dysfunction (tr. 638, 640). Turner again assessed no functional

impairment (tr. 640).

When Plaintiff saw Turner on May 11, 2017, to review lab results and for

mediation refills, she had “[n]o new problems” but the “[s]ame aches and pains” (tr.

628, 631). Plaintiff indicated she had back pain, pain and stiffness in the muscles

and joints, and tenderness in the knee, which was “[l]imited with pain” (tr. 628, 630).

She reported tingling and numbness in the hands and feet, although she was taking

Neurontin and the condition was improving (tr. 631). Plaintiff also was taking

meloxicam and Robaxin “with some relief” (tr. 632). Plaintiff rated the pain a six

out of ten and requested mediation (tr. 628). Turner encouraged Plaintiff to wear a

knee brace daily for support (tr. 632). Plaintiff denied depression (tr. 629).

According to the treatment notes, paroxetine “seem[ed] to be helping” in that regard

(tr. 632). Plaintiff exhibited appropriate mood and affect, good eye contact, logical

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thought process, appropriate thought content, and intact short- and long-term

memory; she also was able to follow directions (tr. 630). Plaintiff was in no

apparent distress and had no functional impairment (tr. 629, 631).

Plaintiff saw Turner again on August 31, 2017, for a follow-up examination,

test results, and medication refills (tr. 619, 621). Plaintiff had knee and back pain

but no joint abnormalities or swelling (tr. 621). She rated the pain a one out of ten

(tr. 619). As usual, Plaintiff denied depression, was in no apparent distress, and had

an appropriate mood and affect with no gross motor dysfunction (tr. 620–21).

Turner again assessed no functional impairment (tr. 621).

Plaintiff returned to Turner for another follow-up visit on November 9, 2017,

on which date she reported pain at a level five (tr. 604–05). Again, Plaintiff was in

no apparent distress and denied muscle/joint pain and swelling (tr. 610–11). She

had full range of motion with 5/5 muscle strength in all extremities, although she

complained of back pain and stiffness and requested pain medication (tr. 612–13).

Plaintiff denied depression and demonstrated an appropriate mood and affect with

no gross motor dysfunction (tr. 611–12). Turner assessed no functional impairment

(tr. 612).

It appears Plaintiff’s next follow-up visit with Turner was on February 22,

2018, when Plaintiff went for lab results and rated her pain a 6 out of 10 (tr. 737).

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With regard to depression, Turner indicated Plaintiff’s score on the PHQ, a

questionnaire that helps medical professionals assess the degree of depression, was

a two, indicating minimal depression (tr. 738).8

X-rays of the right knee performed on April 9, 2018, revealed no fracture or

dislocation (tr. 731). The bony structures appeared intact (id.). There were no

acute findings and no significant changes from the last radiographs on June 22, 2015

(id.). Lumbar x-rays performed the same day likewise were unremarkable (tr. 730).

The vertebral body heights appeared normal (id.). The alignment appeared good

(id.). There was no indication of fracture or dislocation, “either recent or old,” and

no pars inter articularis defects or spondylolisthesis (id.). There was no significant

change from the last lumbar spine x-ray performed on October 8, 2013 (id.).

When Plaintiff saw Turner on April 19, 2018, for a breast exam and

mammogram, she apparently did not respond when asked to rate the severity of her

pain (tr. 747–48). She again denied musculoskeletal problems, although Turner

noted arthritis; she also again denied depression, was in no apparent distress, and

had no functional impairment, with full range of motion and muscle strength in all

8 See https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1495268/.

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extremities (tr. 754–56). Turner assessed a PHQ score of two and noted Plaintiff

had an appropriate mood and affect and no gross motor dysfunction (tr. 748, 756).

On May 3, 2018, during another follow-up visit to review lab results and

obtain medication refills, Plaintiff reported pain at a level zero; she also “[d]enie[d]

any new problems” (tr. 814). Once again, Plaintiff was in no apparent distress,

denied musculoskeletal problems, and had no abnormalities or functional

impairment, with full range of motion and 5/5 muscle strength in all extremities (tr.

821–23). Plaintiff denied depression, and Turner noted an appropriate mood and

affect with no gross motor dysfunction (tr. 821, 823). Turner once again assessed

a PHQ score of two (tr. 815).

On May 17 and June 6, 2018, Plaintiff saw Turner to review mammogram and

ultrasound results (tr. 796–97, 803–04). During both visits, Plaintiff reported pain

at a level zero (tr. 796, 803). Although notes from the June 6 visit are less detailed,

notes from the May 17 visit indicate Plaintiff was in no apparent distress, denied

musculoskeletal problems, and had no musculoskeletal abnormalities, with full

range of motion and 5/5 muscle strength in all extremities (tr. 803, 810–11).

Plaintiff also denied depression on May 17 and had an appropriate mood and affect

with no gross motor dysfunction and no functional impairment (tr. 810, 812). On

both occasions, Turner assigned a PHQ score of two (tr. 797, 804)

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Plaintiff saw Turner on June 14, 2018, to discuss a breast biopsy (tr. 786–87).

Plaintiff again did not respond when asked to rate the severity of her pain (id.). She

was in no apparent distress, however, and denied musculoskeletal problems and

depression (tr. 793–94). Plaintiff likewise declined to rate her pain during an

August 23 follow-up visit for review of lab work and medication refills, when Turner

again noted a PHQ score of two (tr. 774–75).

During a December 6, 2018, visit, Plaintiff reported pain at a level zero (tr.

758). Treatment notes nevertheless reflect pain and stiffness in the muscles/joints,

along with “achy bones knees, back pain” (tr. 766, 768). Plaintiff denied

depression, was in no apparent distress, and demonstrated an appropriate mood and

affect, with no gross motor dysfunction and no functional impairment (id.). Turner

once again assigned a PHQ score of two (tr. 760).

Plaintiff testified to her alleged limitations at the hearing before the ALJ. At

the time of the hearing, Plaintiff was fifty-seven years old, stood 5’1” tall, and

weighed 195 pounds (tr. 65). Plaintiff testified she completed the tenth grade and

had past work as a preparatory cook, which was a “standing job” (tr. 66–67). When

asked what “impairment or physical condition” prevented her from working,

Plaintiff responded “I get hurt all the time. My whole body hurt[s] . . . .” (tr. 67–

68). The ALJ questioned Plaintiff as to the cause of the pain, and Plaintiff said she

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did not know because she had not “been going to the doctor like [she] should”

because she did not have Medicaid (tr. 68). Plaintiff said she did not “know what’s

going on, but [she] kn[e]w a normal body don’t hurt like [hers]” (id.). The ALJ

explained that Plaintiff had to establish a medically determinable impairment for

which there was a cause (id.). In response, Plaintiff testified “I can’t work” (id.).

When asked what the doctors said was wrong with her, Plaintiff responded

that she told people at “the health department about [her] back and stuff” and that

they said her sugar was “out of whack” (id.). Plaintiff confirmed she had been

diagnosed with diabetes and explained that when she saw her provider and her “sugar

[was] down,” the provider would tell her that she did not know why she was hurting

and prescribe medication, which did not work but did “ease [the pain] a little bit”

(id.). Plaintiff testified her doctors diagnosed carpal tunnel syndrome and advised

“[t] hat’s why it hurt[s]” (id.). Plaintiff also testified she had arthritis (tr. 69).

The ALJ asked Plaintiff if she had any pain associated with her alleged

conditions, and Plaintiff responded in the affirmative (id.). The ALJ asked Plaintiff

to describe the pain (id.). Plaintiff responded, “[i]t just feel[s]—in my back, it

feel[s] like something be stabbing me in my back, and my knees, too. That’s how

my knees is, too. My right one—left one” (id.). When asked about the severity of

the pain, Plaintiff said at night, it’s “real strong” and in the day it hurts, “but [not as]

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bad as at night” (tr. 69). Plaintiff said she was unable to sleep in a bed and had to

sleep in a chair instead (id.). The ALJ asked Plaintiff to rate the pain, as

experienced during the day time (id.). Plaintiff said it was “about a five” all day

(id.). The ALJ then asked Plaintiff whether her current medications relieved the

pain (tr. 70). Plaintiff said they did not (id.).

When asked how long she could stand, Plaintiff said “[a]bout 30 minutes” (tr.

72). The ALJ asked Plaintiff how many hours she thought she could stand in an

eight-hour day, assuming she could get up, move around, take breaks, and sit down,

and Plaintiff responded, “[a]bout two” (tr. 72–73). Plaintiff said she could sit down

“probably for an hour” at a time and “about three, four” hours in an eight-hour day,

again assuming she could get up, move around, and take breaks (tr. 73). She could

bend “a little bit, but not all the way down” (id.). When questioned as to how long

she could walk at any one time, Plaintiff responded, “I walk[ed] one day from my

house to my sister[’s] house, but I had to keep sitting down. That was probably

about a[n] hour” (id.). She said she could walk “[a]bout a block” at a time (id.).

When pressed as to the length of time she could walk without a break, Plaintiff

initially said she did not know and then said “[p]robably about 30 minutes” (tr. 73–

74). Assuming she could get up, move around, take breaks, and sit down, Plaintiff

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said she thought she could walk for a total of about two hours in an eight-hour day

(tr. 74). And she could carry a maximum of “about 20” pounds (id.).

The ALJ turned to Plaintiff’s activities of daily living. Plaintiff testified she

got up around 9:00 in the morning and went to bed around midnight (id.). She ate

breakfast around 10:00 or 11:00 and then watched television until around noon (tr.

74–75). She ate lunch around 1:00 or 2:00, although she did not “really have a set

time” (tr. 75). Between the time she ate lunch until around 5:00 or 6:00, she mostly

watched television (id.). Plaintiff said she ate dinner around 5:00 and would then

watch television until she went to bed (id.). She sat in a recliner while watching

television—for approximately eight hours a day (tr. 75–76).

The ALJ asked Plaintiff what chores she performed on a regular basis (tr. 75).

Plaintiff responded that she did not “really have to do too much, because [her]

children mostly [did] it” (id.). She said she did not cook but “sometimes” washed

dishes (id.). She did not iron, sweep, or mop—her children did “that kind of stuff

for [her]” (id.). She also did not vacuum or wash clothes, the latter of which her

sister did for her (tr. 76). She shopped once a month (id.). Plaintiff testified she

did not go to church, visit people, attend sporting events, or work in the yard or

garden (id.). She said she had problems being around a lot of people—ten or more

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(tr. 72). She said she could not deal with anyone but was able to handle some stress

and pressure (id.).

The ALJ asked Plaintiff whether she had been treated for a mental problem

(id.). Plaintiff said she had and that it had “been about—some years ago” (id.).

She could not recall the doctor’s name (id.). In response to questioning from her

counsel regarding symptoms of depression, Plaintiff testified she “just ha[d] panic

attacks and stuff like that” and “told her [doctor] [she] used to drive” (tr. 83).

Plaintiff explained she “used to drive everywhere,” but as of the time of the hearing,

she could not “drive like [she] used to” and did not “drive that far” anymore due to

panic attacks (id.).

A vocational expert, Regina Kitzmiller, also testified at the hearing (tr. 83–

84). Ms. Kitzmiller identified Plaintiff’s past work as preparation cook, which Ms.

Kitzmiller characterized as “SVP 2, unskilled, with a medium physical demand

level, per the DOT, and performed at the light physical demand level, as reported by

the Claimant” (tr. 86). The ALJ asked Ms. Kitzmiller if the record and Plaintiff’s

testimony indicated Plaintiff performed the job of preparation cook as the job is

generally performed in the national economy and consistent with the DOT (id.).

Ms. Kitzmiller testified Plaintiff performed the job at a lighter basis than the job

generally is performed (id.).

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The ALJ then posed a hypothetical question to Ms. Kitzmiller, asking Ms.

Kitzmiller to assume an individual of Plaintiff’s age, education, and past relevant

work experience who could perform medium work (tr. 86–87). The ALJ asked Ms.

Kitzmiller whether such an individual could perform Plaintiff’s past work (tr. 87).

Ms. Kitzmiller testified such an individual could work as a preparation cook, “both

per the DOT and as performed by the Claimant” (id.). The ALJ then asked whether

such an individual could perform other work that existed in the national economy

(id.). Ms. Kitzmiller responded in the affirmative and testified such an individual

could work as a linen room attendant, day worker, and hand packager, all of which

are medium, unskilled jobs with SVP levels of two (id.).

DISCUSSION

I. Opinion of Dr. Slade, a Non-treating Physician

As indicated above, Plaintiff first argues the ALJ erred in his “decision to

accept the non-treating, old opinion of consultative examiner Dr. Slade” (ECF No.

18 at 11). On January 18, 2017, the SSA revised its medical evidence regulations,

including by

redefining several key terms related to evidence, revising . . . rules

about acceptable medical sources (AMS), revising how [the SSA]

consider[s] and articulate[s] . . . consideration of medical opinions and

prior administrative medical findings, revising . . . rules about medical

consultants (MC) and psychological consultants (PC), revising . . . rules

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about treating sources, and reorganizing [its] evidence regulations for

ease of use.

Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed. Reg.

5844 (Jan. 18, 2017) (technical errors corrected by 82 Fed. Reg. 15,132 (Mar. 27,

2017)).9 The revised regulations went into effect on March 27, 2017, before

Plaintiff filed her applications for DBI and SSI, and thus apply to Plaintiff’s claims.

See id.

Among other changes, the revised regulations redefine how evidence is

categorized, specifying five categories of evidence: (1) objective medical evidence,

(2) medical opinion, (3) other medical evidence, (4) evidence from nonmedical

sources, and (5) prior administrative medical finding. See 20 C.F.R. § 416.913(a)

(2017).10 Pertinent for purposes of this matter, the revised regulations define

“medical opinion” as follows:

9 As the SSA explained,

[t]hese revisions conform our rules to the requirements of the Bipartisan Budget

Act of 2015 (BBA), reflect changes in the national healthcare workforce and in the

manner that individuals receive medical care, and emphasize the need for objective

medical evidence in disability and blindness claims. We expect that these changes

will simplify our rules to make them easier to understand and apply[] and allow us

to continue to make accurate and consistent disability determinations and decisions.

Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 5844 (Jan. 18,

2017) (technical errors corrected by 82 Fed. Reg. 15,132 (Mar. 27, 2017)).

10 Compare with 20 C.F.R. § 416.912(b)(1) (2016).

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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 following

abilities: . . .

(A) Your ability to perform physical demands of work activities,

such as sitting, standing, walking, lifting, carrying, pushing,

pulling, or other physical functions (including manipulative or

postural functions, such as reaching, handling, stooping, or

crouching)

(B) Your ability to perform mental demands of work activities, such

as understanding; remembering; maintaining concentration,

persistence, or pace; carrying out instructions; or responding

appropriately to supervision, co-workers, or work pressures in a

work setting;

(C) Your ability to perform other demands of work, such as seeing,

hearing, or using other senses; and

(D) Your ability to adapt to environmental conditions, such as

temperature extremes or fumes.

20 C.F.R. § 416.913(a)(2) (2017). In revising the definition of “medical opinion,”

the SSA recognized that “[d]iagnoses and prognoses do not describe how an

individual functions” and that although the SSA considers a claimant’s statements

about his or her symptoms, “[a] more appropriate focus of medical opinions would

be perspectives from medical sources about claimants’ functional abilities and

limitations.” 81 Fed. Reg. at 62,562; see also 20 C.F.R. § 416.913(a)(2), (3)

(2017).11

11 By contrast, the prior regulations provided that statements from an acceptable medical source

reflecting judgments about the nature and severity of a claimant’s impairment(s), including the

claimant’s symptoms, diagnosis, and prognosis, were considered “medical opinions.” 20 C.F.R.

§ 416.927(a)(2) (2016); id. at § 416.927(a)(1) (2017).

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“Other medical evidence” includes “evidence from a medical source that is

not objective medical evidence or a medical opinion, including judgments about the

nature and severity of [the claimant’s] impairments, [the claimant’s] medical history,

clinical findings, diagnosis, treatment prescribed with response, or prognosis.” 20

C.F.R. § 416.913(a)(3) (2017). “Evidence from nonmedical sources” includes “any

information or statement(s) from a nonmedical source (including [the claimant])

about any issue in [the] claim.” 20 C.F.R. § 416.913(a)(4) (2017). The SSA “may

receive evidence from nonmedical sources either directly from the nonmedical

source or indirectly, such as from forms [the SSA] receive[s] and [its] administrative

records.” Id.

A prior administrative medical finding is a finding, other than the

ultimate determination about whether [the claimant is] disabled, about

a medical issue made by [a] Federal [or] State agency medical [or]

psychological consultant[] at a prior level of review (see § 416.1400) in

[the] current claim based on . . . review of the evidence in [the] case

record, such as:

(i) The existence and severity of [the claimant’s] impairment(s);

(ii) The existence and severity of [the claimant’s] symptoms;

(iii) Statements about whether [the claimant’s] impairment(s)

meets or medically equals any listing in the Listing of Impairments in

Part 404, Subpart P, Appendix 1;

(iv) If [the claimant is] a child, statements about whether [the

claimant’s] impairment(s) functionally equals the listings in Part 404,

Subpart P, Appendix 1;

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(v) If [the claimant is] an adult, [the claimant’s] residual

functional capacity;

(vi) Whether [the claimant’s] impairment(s) meets the duration

requirement; and

(vii) How failure to follow prescribed treatment (see § 416.930)

and drug addiction and alcoholism (see § 416.935) relate to [the] claim.

20 C.F.R. § 416.913(a)(5) (2017).

The revised regulations also significantly alter the manner in which an ALJ is

to consider and articulate findings regarding medical opinions. See 20 C.F.R.

§ 416.920c (2017). Under the revised regulations, the ALJ “will not defer or give

any specific evidentiary weight, including controlling weight, to any medical

opinion(s) . . ., including those from [a claimant’s] medical sources.” 20 C.F.R.

§ 416.920c(a) (2017). “When a medical source provides one or more medical

opinions . . . , [the ALJ] will consider those medical opinions . . . from that medical

source together using the factors listed in paragraphs (c)(1) through (c)(5) of

[§ 416.920c], as appropriate.” Id. Those factors include the following:

(1) supportability;

(2) consistency;

(3) relationship with the claimant, which includes

(i) length of the treatment relationship

(ii) frequency of examinations

(iii) purpose of the treatment relationship

(iv) extent of the treatment relationship

(v) examining relationship;

(4) specialization; and

(5) other factors.

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20 C.F.R. § 416.920c(a)–(c) (2017).

Under the revised regulations, supportability and consistency “are the most

important factors” the ALJ considers when determining the persuasiveness of a

medical source’s medical opinions. 20 C.F.R. § 416.920c(b)(2) (2017). As the

SSA recognized, “[t]he more relevant the objective medical evidence and supporting

explanations presented by a medical source are to support his or her medical

opinion(s) . . . , the more persuasive the medical opinions . . . will be” and, similarly,

“[t]he more consistent a medical opinion(s) . . . is with the evidence from other

medical sources and nonmedical sources in the claim, the more persuasive the

medical opinion(s) . . . will be.” 20 C.F.R. § 416.920c(c)(1) and (2) (2017).

Accordingly, the ALJ now must “explain how [he] considered the supportability and

consistency factors for a medical source’s medical opinions . . . in [the] . . . decision.”

20 C.F.R. § 416.920c(b)(2) (2017).

The ALJ “may, but [is] not required to, explain how he considered the factors

in paragraphs (c)(3) through (c)(5) . . . , as appropriate, when . . . articulat[ing] how

[he] consider[ed] medical opinions . . . in [the] case record.” 20 C.F.R.

§ 416.920c(b)(2) (2017). When 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]

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considered the other most persuasive factors . . . for those medical opinions. . . .”

20 C.F.R. § 416.920c(b)(3) (2017). The revised regulations deem statements on

issues reserved to the Commissioner, including statements that a claimant is or is not

disabled, “inherently neither valuable nor persuasive to the issue of whether [a

claimant is] disabled . . . .” 20 C.F.R. § 416.920b(c)(1)–(3) (2017). In fact, the

regulations dispense with any analysis of the consideration of such evidence. See

20 C.F.R. § 416.920b(c) (2017).

Turning to the medical opinion at issue in this case, as set forth above, the

ALJ found “Dr. Slade’s assessment that reflects the claimant can perform medium

exertion” to be “very persuasive overall,” noting “Dr. Slade was an examining

neurologist, and while his opinions [were] four years old, [they were] consistent with

the current medical records” and “also well supported by his own clinical

examinations and testing, as discussed above, and . . . generally consistent with the

record as a whole” (tr. 31). As the ALJ observed, when Plaintiff saw Dr. Slade on

September 18, 2015, for a consultative neurological examination, she had been

experiencing severe left eye pain for two days, as a result of which it was difficult

for Dr. Slade to obtain information from her (tr. 29). Dr. Slade noted, however, that

Plaintiff reported back and knee pain that rendered her unable to bend, stand, or walk

for significant periods of time (id.). Specifically, Plaintiff complained of constant,

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sharp pain, including chronic low back pain with a burning sensation from the waist

down the right leg since a 2006 motor vehicle accident (tr. 29). She also

complained of bilateral knee pain and hand pain with tingling paresthesia and an

electric shock sensation in both hands (id.). Plaintiff indicated she quit working in

2012 because she could no longer stand long enough to perform the duties of her job

(id.).

Upon examining Plaintiff, Dr. Slade found the spine to be within normal

limits, with no tenderness or paraspinal muscle spasm; he also found active range of

motion within normal limits in the extremities (tr. 29). Plaintiff’s joints were within

normal limits as well, with no atrophy or edema, and her “gait revealed a synergistic

swing, which [likewise] was within normal limits, and no antalgia” (id.). Plaintiff

refused to attempt tandem, tiptoe, and heel walking (id.).

At the time of the examination, Plaintiff’s grip strength was 3/3 bilaterally;

during a June 15 visit with her primary care physician—only a little more than three

months before Dr. Slade’s examination—however, Plaintiff’s grip strength was 5/5

(tr. 29). Plaintiff’s straight leg raise was eighty-five degrees in both the sitting and

supine positions, and Plaintiff had normal motor strength and sensory abilities (id.).

Plaintiff’s deep tendon reflexes were 2+ throughout, except for the Achilles, which

was 1+ (id.). Plaintiff’s Babinski responses were normal, and Plaintiff had normal

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range of motion of the cervical spine, lumbar spine, shoulders, elbows, wrists, hands,

hips, knees, ankles, and feet (tr. 29).

As set forth above, Dr. Slade diagnosed acute corneal ulcer or abrasion with

conjunctivitis, back pain without objective abnormality, bilateral carpal tunnel

syndrome without motor involvement, bilateral knee pain with equivocal effusion of

the left knee without ligamentous laxity or abnormal knee examination, diabetes

mellitus, tingling paresthesia of the extremities without objective sensory changes,

controlled hypertension, and obesity (tr. 29). Dr. Slade found no significant

impairment of physical function and opined Plaintiff had no limitation of functional

capacity other than in the left eye, which resolved within five days of Dr. Slade’s

examination (id.).

Dr. Slade opined Plaintiff could continuously lift or carry up to twenty pounds

and occasionally lift or carry up to fifty pounds; sit for five hours at a time and up to

eight hours during an eight-hour day; and stand and walk for four hours at a time

and up to eight hours in an eight-hour day (tr. 30). Dr. Slade concluded Plaintiff

did not require the use of a cane to ambulate and could continuously use her hands

for handling, fingering, feeling, pushing and pulling, and reaching in all directions

and continuously use her feet for pushing and pulling leg controls (id.). Dr. Slade

further opined Plaintiff could continuously climb, balance, stoop, kneel, crouch, and

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crawl; work around unprotected heights; be around moving machinery and operate

motor vehicles; and work around humidity, wetness, extreme heat and cold, dust,

odors, fumes, pulmonary irritants, and loud noise (tr. 30).

Prior to Dr. Slade’s examination, on October 8, 2013, Dr. Wayne Sampson of

Cross Creek Medical performed the first consultative examination of Plaintiff (tr.

28). Dr. Sampson noted Plaintiff reported constant low back pain since her

automobile accident, which she described as non-radiating and an eight out of ten

“most of the time” (id.). The pain intensified upon walking half a mile, standing

for half an hour, sitting in one position for more than twenty to twenty-five minutes,

bending over, stooping, squatting, and carrying anything over fifteen to twenty

pounds for more than ten to fifteen feet (id.). Plaintiff reported she had been

experiencing persistent pain in the knees for several years, but she denied swelling

and instability (id.). Plaintiff indicated the pain worsened with all weight bearing

activities lasting more than ten to fifteen minutes, but she stated she got mild back

and knee pain relief from over-the-counter non-steroidal anti-inflammatory drugs

(id.). Lumbar x-rays performed the day Dr. Sampson examined Plaintiff were

unremarkable (tr. 730).

Neurological examination revealed that Plaintiff’s reflexes were 1+ in the

biceps and 2+ in the patellar (tr. 730). Plaintiff’s motor strength was 5/5

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throughout, including hand grip, and she had dexterity of the hands (tr. 730).

Sensory examination revealed that light touch, stereognosis, and proprioception

were within normal limits (id.). Plaintiff had a normal gait and was able to stand

and walk on her heels and toes (id.).

Dr. Sampson’s musculoskeletal examination revealed that Plaintiff was able

to get up from a seated position, as well as on and off the examination table, without

difficulty (tr. 730). There was no tenderness or spasm in the neck or paraspinal

muscles and no pain with range of motion (id.). Dr. Sampson observed no

appreciable spinal deformity, and there was no pain with flexion or extension and

no tenderness or spasm (id.). Straight leg raises were negative in the sitting and

supine positions (id.). There was no heat, swelling, effusion, or ligament laxity in

the knees and no tenderness or pain with range of motion (id.). Range of motion of

the cervical spine, lumbar spine, and all joints was within normal limits (id.). Dr.

Sampson diagnosed chronic pain in the low back and knees, Type II diabetes

mellitus, and “depression that was improved with treatment” (id.).

The ALJ found “[t]hese consistent reports [i.e., of Drs. Slade and Sampson],

clinical observations, and objective findings provide strong support for the medium

exertion level found in the [assigned RFC]” (tr. 30). Substantial evidence supports

the ALJ’s finding in that regard. Indeed, as set forth above, there simply is no

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objective medical evidence in the record to substantiate Plaintiff’s claim of disabling

impairments. In fact, as the ALJ stated, “[t]he medical record reflects improvement

in [Plaintiff’s] medical condition” after Dr. Slade conducted his examination on

September 18, 2015 (tr. 32).

As the ALJ observed, “[t]hroughout 2016, 2017, and 2018, examinations at

the Jefferson County Health Department reflect[ed] . . . no abnormalities or

swelling” (tr. 32). Plaintiff “had full range of motion [in] all [four] joints[,] and

muscle strength was 5/5 in all extremities” (id.). “In September 2016, January

2017, May 2017, August 2017, November 2017, and April 2018, [Plaintiff] was

assessed with no functional impairment” (id.). “In 2015, x-rays of [Plaintiff’s]

knees revealed some bilateral medial lateral joint space loss but no fracture,

dislocation, or super patella joint effusion,” which “initially [was] interpreted as

degenerative changes” (tr. 32–33). Subsequent x-rays of Plaintiff’s right knee

showed no fracture or dislocation, intact bony structures, and no acute findings (tr.

33). “[I]n 2018, x-rays of the lumbar spine appeared normal”; alignment also

“appeared good with no fracture or dislocation” (id.). And “[t]here was no

spondylolisthesis” (id.). Hence, “[t]here are no diagnostic studies to show

abnormalities that could reasonably be expected to produce symptoms near the

disabling level of severity” (id.).

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Put simply, as the ALJ found, “the objective findings in this case do not

provide strong support for the claimant’s allegations of disabling symptoms and

limitations” (tr. 24). The ALJ’s finding that “[t]he record does not reveal the

existence of any severe, underlying impairment generally associated with the

intractable, unrelenting, and totally disabling pain, which the claimant alleges,” thus

is supported by substantial evidence in the record (tr. 33). Accordingly, the

undersigned finds the ALJ did not err in finding Dr. Slade’s opinion “very persuasive

overall” (tr. 31).

II. Dr. Kline’s Opinions

Substantial evidence also supports the ALJ’s finding that depression was not

a severe impairment (tr. 15).12 In his decision, the ALJ recognized that Plaintiff

“ha[d] the medically determinable mental impairment of a depressive disorder” (id.).

The ALJ found, however, that such disorder did “not cause more than minimal

limitation in [Plaintiff’s] ability to perform basic mental work-related activities” and

thus was non-severe (id.). As the Commissioner explains, an impairment is not

severe if it does not significantly limit the claimant’s physical or mental ability to do

basic work activities. See 20 C.F.R.§§ 404.1522(a), 416.922(a) (2017). Here, as

12 As the Commissioner points out, under the revised regulations, opinions of state agency medical

and psychological consultants are now deemed prior administrative medical findings rather than

medical opinions.

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the ALJ noted, “the record [does] not show any consistent and severe mental

restrictions, psychological findings, or medical source statements that equated to

significant limitations” resulting from Plaintiff’s non-severe mental impairment

(id.).

As set forth above, in May 2017, Turner observed appropriate mood and

affect, good eye contact, logical thought process, intact long- and short-term

memory, and intact insight and judgment (tr. 630). Turner continued to observe

appropriate mood and affect, and Plaintiff repeatedly denied depression (tr. 611–12,

620–21, 629, 754, 756, 793, 810, 812, 821, 823). In December 2018, Plaintiff’s

score on the PHQ was a two—which, as stated above, indicated minimal depression

(tr. 760).

The prior administrative medical findings of two state agency psychological

consultants also support the ALJ’s finding that depression did not constitute a severe

impairment (tr. 15). Dr. Adrine McKenzie and Dr. Alan Harris, state agency

psychological consultants, reviewed the record in 2018 and opined that Plaintiff’s

mental impairment was not severe (tr. 154–55, 196–99). The ALJ found the

opinions of Dr. McKenzie and Dr. Harris “well supported by, and consistent with,

the overall record” and thus “extremely persuasive” (tr. 15, 31).

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The revised regulations recognize that state agency medical and psychological

consultants are highly qualified and experts in Social Security disability evaluation.

20 C.F.R. §§ 404.1513a(b)(1), 416.913a(b)(1) (2017) (citing §§ 404.1520b,

404.1520c, 404.1527, 416.920b, 416.920c, 416.927). Under the revised

regulations, ALJs are not required to adopt prior administrative medical findings,

but they must consider such evidence in accordance with the Commissioner’s

regulations, as appropriate. See 20 C.F.R. §§ 404.1513a(b)(1), 416.913a(b)(1)

(2017). As with other opinions of record, the ALJ must consider the factors of

consistency and supportability in evaluating the persuasiveness of such findings.

See 20 C.F.R. §§ 404.1520c(a), 416.920c(a) (2017). Here, the ALJ considered the

consultants’ findings, explained he found them persuasive, and considered the

required factors in assessing their persuasiveness (tr. 15, 31). As the ALJ explained,

while Dr. McKenzie and Dr. Harris were not treating sources, their opinions were

well-supported by citations to the record and consistent with the record as a whole

(tr. 31, 154–55, 196–99).

The only evidence that even arguably supports Plaintiff’s claim of a severe

mental impairment is Dr. Kline’s consultative opinions rendered between September

and November 2015, which the ALJ characterized, correctly, as “varying,” and

found “only somewhat persuasive” (tr. 15). Dr. Kline offered “multiple medical

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opinions, with follow-up clarification, after completing a psychological examination

of Plaintiff” (tr. 15). “During her exam on September 21, 2015, [Plaintiff] reported

that her depression began long before the onset of her physical symptoms from the

automobile accident”; she also reported a history of panic attacks (id.). Dr. Kline

noted that although Plaintiff was “not receiving therapeutic services,” she was

“being maintained on a regimen of psychotropic medication that include[d] the

antidepressant Citalopram” (id.). Dr. Kline further noted that Plaintiff took the

medication as prescribed and reported that it was helpful in controlling her

symptoms, although she had breakthrough depression and anxiety (id.). Plaintiff

had never received inpatient psychiatric treatment, and there was no indication she

failed any grade or was placed in special education classes (id.).

Plaintiff described her mood to Dr. Kline as “all right” (tr. 16). She presented

as flat and dysthymic, “sullen and rather disinterested in the interview session” (id.).

Her thoughts, however, were “generally rational and logical, [although] simple and

concrete” (id.). “There was no loosening of associations, rambling speech, or

delusional thinking evidence, and [she] expressed verbal structure and was logical

and relevant” (id.). “With regard to concentration and orientation, she was able to

attend to the interview without distraction, and no significant decline in attention

was noted as the interview progressed” (id.). She was “fully oriented and easily

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able to identify four common items, [although] she could not spell ‘world’ forward

or backward” (tr. 16). “With regard to memory, she denied significant or

bothersome memory problems and . . . was able to remember three simple words

after latency periods of 1, 5, and 15 minutes without difficulty” (id.). There was no

indication of past or present hallucinations (id.). As the ALJ observed, “Dr. Kline

diagnosed [Plaintiff] with a moderate recurrent major depressive disorder and opined

that, based on the immediate evaluation, she d[id] not appear to have an emotional

or psychiatric issue that would preclude her from performing simple, repetitive tasks,

remembering and following directions, or interacting appropriately with coworkers,

supervisors, and the public” (id.).

On September 28, 2015, Dr. Kline completed a Mental Residual Functional

Capacity evaluation in which he indicated Plaintiff had a mild inability to understand

and remember simple instructions; a moderate inability to carry out simple

instructions, use judgment in simple one- or two-step work-related decisions, and

respond appropriately to customers, the general public, supervisors, and coworkers;

and a marked inability to understand, remember, and carry out complex instructions,

use judgment in complex work-related decisions, and deal with changes in a routine

work setting (tr. 16, 575–76).

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A couple of months later, on November 24, 2015, Dr. Kline provided a

response to an inquiry by an ALJ, clarifying that, in his opinion, Plaintiff’s

impairment was more significant than would be indicated by a finding of

“‘moderate,’” which Dr. Kline noted was defined on the form as “‘able to function

satisfactorily’” (tr. 16–17, 583). As previously noted, Dr. Kline opined that

Plaintiff’s “‘functioning in a competitive occupational capacity [would] be limited,

and she may not be able to meet the limitations set forth by some employers, but she

is NOT incapable of being successful in her occupational pursuits’” (tr. 17)

(emphasis in original).

The ALJ found Dr. Kline’s opinions unsupported by Dr. Kline’s examination

notes, which indicated Plaintiff’s symptoms were managed with psychotropic

medication (tr. 15, 569). See 20 C.F.R. §§ 404.1520c(c)(1), 416.920c(c)(1) (2017))

(“The more relevant the objective medical evidence and supporting explanations

presented by a medical source are to support his or her medical opinion(s) . . . , the

more persuasive the medical opinions . . . will be.”). The ALJ also found Dr.

Kline’s opinions inconsistent with Dr. Kline’s notes regarding Plaintiff’s memory,

attention, and concentration, all of which Dr. Kline found to be intact (tr. 18, 571).

See id. The ALJ further found Dr. Kline’s opinions inconsistent with the treatment

records of Plaintiff’s primary care provider, A.R.N.P. Turner, which showed

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Plaintiff routinely denied depression in 2017 and 2018 and exhibited appropriate

mood and affect (tr. 17–18, 611–12, 620–21, 629, 754, 756, 793, 810, 812, 821,

823). See 20 C.F.R. §§ 404.1520c(c)(2), 416.920c(c)(2) (2017) (“The more

consistent a medical opinion(s) . . . is with the evidence from other medical sources

and nonmedical sources in the claim, the more persuasive the medical opinion(s) . .

. will be.”). In fact, as the ALJ observed, “[w]hile Dr. Kline found a major

depressive disorder when [he] examined [Plaintiff] in 2015, [Plaintiff] . . . had no

follow-up psychological treatment after being diagnosed with depression” (tr. 17).

And again, in May, August, and December 2018, Plaintiff’s PHQ score was a two,

indicating minimal depression (tr. 17). Lastly, the ALJ found Dr. Kline’s opinions

inconsistent with Plaintiff’s presentation at the hearing and reports of receiving no

inpatient psychiatric treatment, frequently spending time with family, watching

television daily, and performing household chores (tr. 15, 17–18, 72, 75–76, 378–

79, 381, 386–89, 570).

Plainly, as required under the revised regulations, the ALJ articulated his

consideration of Dr. Kline’s opinions according to the regulatory factors—most

importantly, consistency and supportability. See 20 C.F.R. §§ 404.1520c(b)(2),

416.920c(b)(2) (2017). The undersigned finds that the ALJ’s determination that Dr.

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Kline’s opinions were only “somewhat persuasive” is supported by substantial

evidence in the record and application of proper legal standards.

Finally, Plaintiff argues the ALJ should have ordered a consultative

psychological examination during the relevant period (ECF No. 18 at 19–21).13

Plaintiff’s argument is unpersuasive. As set forth above, Plaintiff “bears the burden

of proving that [s]he is disabled, and, consequently, . . . is responsible for producing

evidence in support of h[er] claim.” See Ellison v. Barnhart, 355 F.3d 1272, 1276

(11th Cir. 2003); see also 20 C.F.R. §§ 404.1512, 416.912 (2017). Moreover, the

ALJ had sufficient evidence to render a decision, as a result of which a consultative

examination was unnecessary. See 20 C.F.R. §§ 404.1519a(b), 416.919a(b) (2012)

(stating an ALJ may order a consultative examination if the record as a whole is

insufficient to allow him to make a decision); see also Doughty v. Apfel, 245 F.3d

1274, 1281 (11th Cir. 2001) (“The regulations ‘normally require’ a consultative

examination only when necessary information is not in the record and cannot be

obtained from the claimant’s treating medical sources or other medical sources”)

(quoting 20 C.F.R. § 404.1519a(b) (2012)). And there are no evidentiary

inconsistencies in the record necessitating a consultative examination. See 20

13 As the Commissioner points out, in so arguing, Plaintiff relies on the regulations prior to their

revision.

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C.F.R. §§ 404.1519a(b), 416.919a(b) (2012) (stating an ALJ may order a

consultative exam to try to resolve an inconsistency in the evidence). Finally, the

Eleventh Circuit has held there must be a showing of prejudice for the reviewing

court to remand the case to the Commissioner for further development of the record.

See Brown v. Shalala, 44 F.3d 931, 935 (11th Cir. 1995). A showing of prejudice

requires a showing the ALJ did not have all of the relevant evidence of record before

him or did not consider all of the evidence of record in reaching his decision. See

Kelley v. Heckler, 761 F.2d 1538, 1540–41 (11th Cir. 1985). Plaintiff has made no

such showing.

CONCLUSION

For the reasons set forth above, the undersigned finds the Commissioner’s

decision supported by substantial evidence in the record and application of proper

legal standards and, hence, that the decision should affirmed.14 See Carnes v.

Sullivan, 936 F.2d 1215, 1218 (11th Cir. 1991) (“[T]his Court may reverse the

decision of the [Commissioner] only when convinced that it is not supported by

substantial evidence or that proper legal standards were not applied.”).

14 The court notes that, to the extent it reviewed the legal principles upon which the ALJ’s decision

is based, it conducted a de novo review. See Moore, 405 F.3d at 1208.

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Accordingly, it is ORDERED:

1. The clerk of court is directed to substitute Kilolo Kijakazi for Andrew

Saul as Defendant in this case.

2. The decision of the Commissioner is AFFIRMED, and this action is

DISMISSED.

3. The clerk of court is directed to enter JUDGMENT pursuant to

sentence four of 42 U.S.C. § 405(g) AFFIRMING the decision of the Commissioner

and close the file.

At Pensacola, Florida this 30th day of September 2021.

/s/ Elizabeth M. Timothy

ELIZABETH M. TIMOTHY

CHIEF UNITED STATES MAGISTRATE JUDGE

Case No.: 4:20cv137/EMT