# BRINSON v. KIJAKAZI

> District Court, N.D. Florida · January 17, 2024

URL: https://www.frixlaw.com/law-library/cases/10116828

## Case

- **Court:** District Court, N.D. Florida
- **Decided:** January 17, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10116828

## How later opinions describe it (automated extraction)

- discussing SVP Levels 1 and 2

## Opinion text

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION

CHRISTOPHER B. BRINSON,

Plaintiff,

vs. Case No. 5:23cv108-CAS

KILOLO KIJAKAZI,
Acting Commissioner,
Social Security Administration,

Defendant.
/

MEMORANDUM OPINION AND ORDER
This is a Social Security case referred to the undersigned magistrate
judge upon consent of the parties. ECF No. 17. It is now before the Court
pursuant to 42 U.S.C. § 405(g) for review of the final determination of the
Acting Commissioner (Commissioner) of the Social Security Administration
(SSA) denying Plaintiff’s application for a period of disability and Disability
Insurance Benefits (DIB) pursuant to Title II of the Social Security Act (Act).
After consideration of the entire record, the decision of the Commissioner is
affirmed.
I. Procedural History
On February 2, 2021, Plaintiff, Christopher B. Brinson, filed an
application for a period of disability and DIB and alleged disability beginning
May 1, 2018, and March 15, 2021, as amended during the hearing.1 Tr.
10, 58. (Citations to the record (transcript/administrative record), ECF No.

11, shall be by the symbol “Tr.” followed by a page number that appears in
the lower right corner.) Plaintiff’s last day insured for DIB is December 31,
2023. Tr. 253. Disability is based, in part, on back injury/surgery, diabetes,

diabetic neuropathy, anxiety/depression, veritable bowel syndrome, acute
sinus, tinnitus, sleep apnea, and severe knee pains.2 Tr. 17, 56-58, 67-68,
71-72, 246.
The application was initially denied on August 25, 2021, and upon

reconsideration on March 28, 2022. Tr. 10, 85-103. On September 7,
2022, Administrative Law Judge (ALJ) Janet McCamley held a telephone
hearing due to the extraordinary circumstance presented by the COVID-19

pandemic. Tr. 10, 50-84. Plaintiff testified. Tr. 59-78. April Rosenblatt, an
impartial vocational expert, testified. Tr. 10, 78-84, 345-48 (Resume).
Quinn E. Brock, an attorney, primarily represented Plaintiff, although

1 Plaintiff previously filed a DIB application and a supplemental security income
(SSI) application on May 2, 2018. Tr. 52, 107. The case proceeded to hearing; and, on
April 24, 2020, ALJ Andrew Dixon, III, entered a decision denying Plaintiff benefits from
December 18, 2017, through the date of the decision. Tr. 117. Based on Plaintiff’s
voluntary decision to allege disability beginning in March of 2021, and the Appeals
Council denial of his request for review of his prior April 21, 2020, decision, ALJ
McCamley expressly found no “basis for reopening the claimant’s prior Title II
application.” Tr. 10.

2 The ALJ discussed Plaintiff’s allegations of disabling impairments and inability
to work made in the claim forms, initial reconsideration, and hearing level. Tr. 17-18.
Joseph Campbell, an attorney of the same firm, appeared at the hearing.
Tr. 10, 37-42, 50, 133.

On September 21, 2022, the ALJ entered a decision and denied
Plaintiff’s application for disability from March 15, 2021, the amended
alleged onset date, through the date of the decision. Tr. 30-31.

Thereafter, Plaintiff requested the Appeals Council to review the
ALJ’s decision; the Appeals Council denied Plaintiff’s request for review on
March 27, 2023. Tr. 1-6, 228-30. The ALJ’s decision stands as the final
decision of the Commissioner. See 20 C.F.R. § 404.981.

On April 21, 2023, Plaintiff filed a Complaint with this Court seeking
review of the ALJ’s decision. ECF No. 1. The parties consented to have a
United States Magistrate Judge conduct all proceedings. ECF No. 17. The

parties filed memoranda of law, ECF Nos. 13, 15, which have been
considered.
II. Findings of the ALJ
The ALJ made several findings relative to the issues raised in this

appeal:
1. “The claimant meets the insured status requirements of the Social
Security Act through December 31, 2023.” Tr. 12.

2. “The claimant has not engaged in substantial gainful activity since
March 15, 2021, the amended alleged onset date.” Id.
3. “The claimant has the following severe impairments: Type II
diabetes mellitus with peripheral neuropathy; lumbar degenerative
disease; irritable bowel syndrome; hypertension, and right knee
chrondromalacia.” Id. The ALJ determined that these
impairments “significantly limit the ability to perform basic work
activities as required by SSR 85-28.” Tr. 12-13. The ALJ also
noted that Plaintiff “has other medically determinable impairments
than recognized above, such as mild obstructive sleep apnea or
non-proliferative diabetic retinopathy, as well as various acute
ailments.” Tr. 13 (citations to exhibits omitted). The ALJ further
noted that Plaintiff “has also alleged depression, most recently
during the hearing,” but found it “was not a medically determinable
impairment.” Id.

4. “The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of
the listed impairments in 20 CFR Part 404, Subpart P, Appendix
1.”3 Tr. 14. In part, the ALJ considered the applicability of Listing
1.15 which “discusses disorders of the skeletal spine that results in
compromise of a nerve root(s).” Id. Referring to Finding 5 in the
decision, Tr. 16, the ALJ determined “that the record fails to show
the required symptom severity, functional limitations, or enough
objective medical findings to qualify under Listing 1.15.” Tr. 14.
Again, referring to Finding 5 in the decision, the ALJ determined
that the claimant did not meet Listing 1.16 related to lumbar spinal
stenosis resulting in compromise of the cauda equina. Tr. 14-15.
Additionally, and again referring to Finding 5, the ALJ considered
the criteria of Listing 1.18 which “addresses abnormality of a major
joint (s) in any extremity” and determined the record “simply has
not demonstrated the required symptom severity or functional
limitations set out in this listing.” Tr. 15. Further, the ALJ
considered other listings under sections 4.00 (cardiovascular
system) and 5.00 (digestive system) and Listing 11.14 (peripheral
neuropathy) and determined that the record did not evidence
findings of the required severity in each category. Id.

3 The ALJ is not required to identify all impairments that should be considered
severe. See Heatly v. Comm’r of Soc. Sec., 382 F. App’x 823, 825 (11th Cir. 2010)
(unpublished); see also Mariarz v. Sec’y of Health & Human Servs., 837 F.2d 240, 244
(6th Cir. 1987). Plaintiff does not claim the ALJ omitted a severe impairment. ECF No.
13.
5. “[T]he claimant had the residual functional capacity [RFC] to
perform light work as defined in 20 CFR 404.1567(b), except that
the claimant is further limited to never climbing ladders, ropes, or
scaffolds; no more than occasional climbing of ramps or stairs; no
more than occasional balancing, stooping, or crouching; and may
never kneel or crawl. In addition, the claimant can have no more
than occasional exposure to workplace hazards such as moving
machinery or unprotected heights. Additionally, the claimant is
precluded from performing outside work away from indoor
bathroom facilities.” Tr. 16-17; see also Tr. 80 (hypothetical
posed to the vocational expert (VE).4

6. “The claimant is unable to perform past relevant work” as a
Cleaner, SVP 2; Parts Order/Stock Clerk, SVP 5; and Teacher
Aide II, SVP 3, all with light exertion per the Dictionary of
Occupational Titles (DOT) and as performed. Tr. 28, 80-81. To
this end, the ALJ found “that except for his Teacher Aide II
position, these jobs were performed within 15 years prior to the
adjudication of this claim, and otherwise qualify as past relevant
work.” Tr. 28. The ALJ noted that the vocational expert testified a
person with the claimant’s background “would be unable to
perform the identified past relevant work,” except for the
“substitute teacher position” which the ALJ did not include. Tr. 29,
78-80. The ALJ agreed. Id.

7. The claimant was born in 1972 and “was 49 years old, which is
defined as a younger individual age 18-49, on the amended
alleged disability onset date. The claimant subsequently changed
age category to “closely approaching advanced age.” Tr. 29.
Plaintiff has at least a high school education and Plaintiff
completed four or more years of college. Tr. 17, 247.
Transferability of jobs is not material in this case. Tr. 29.

8. “Considering the claimant’s age, education, work experience, and
[RFC], there are jobs that exist in significant numbers in the

4 “Occasionally” means: “activity or condition exists up to 1/3 of the time.”
Dictionary of Occupational Titles (DOT) (4th ed., rev. 1991), Appendix C: Components
of the Definition Trailer, § IV Physical Demands-Strength Rating. “Frequently” means:
“activity or condition exists from 1/3 to 2/3 of the time.” Id.
national economy that the claimant can perform” such as Marker,
Cashier II, and Mail Clerk, all unskilled (SVP 2) and light exertion.5
Tr. 30, 80-81. (The VE testified that adding a limitation to the first
two hypotheticals posed during the hearing that requires use of an
assistive device for ambulation and uneven surfaces would place
such a person at sedentary precluding all light work. Tr. 83-84.)
Plaintiff objects to the ALJ’s RFC determination based on the
evidence, but does not object to the VE’s conclusion that Plaintiff
can perform several jobs based on the hypothetical questions
posed by the ALJ.

9. “The claimant has not been under a disability, as defined in the
Social Security Act, from March 15, 2021, through the date of this
decision, September 21, 2022.” Tr. 11, 30.

III. Legal Standards Guiding Judicial Review
This Court must determine whether the Commissioner’s decision is
supported by substantial evidence in the record and premised upon correct
legal principles. 42 U.S.C. § 405(g); Chester v. Bowen, 792 F.2d 129, 131
(11th Cir. 1986); see also Biestek v. Berryhill, __U.S.__, 139 S. Ct. 1148,
1154, 203 L. Ed. 2d 504 (2019) (Substantial evidence “means-and means
only-such relevant evidence as a reasonable mind might accept as

5 “Unskilled work is work which needs little or no judgment to do simple duties
that can be learned on the job in a short period of time.” 20 C.F.R. § 404.1568(a). A
Specific Vocational Preparation (SVP) of 2 means “[a]nything beyond short
demonstration up to and including one month.” Dictionary of Occupational Titles (DOT)
(4th ed., rev. 1981), App. C: Components of the Definition Trailer, § II, SVP. “[SVP] it is
defined as the amount of elapsed time required by a typical worker to learn the
techniques, acquire the information, and develop the facility needed for average
performance in a specific job-worker situation.” Id. Unskilled work corresponds to an
SVP of 1 and 2. SSR 00-4p, 2000 SSR LEXIS 8, at *8 (Dec. 4, 2000). See Buckwalter
v. Comm’r of Soc. Sec., 5 F.4th 1315 (11th Cir. 2021) (discussing SVP Levels 1 and 2).
Light work involves, in part, “lifting no more than 20 pounds at a time with frequent lifting
or carrying of objects weighing up to 10 pounds.” 20 C.F.R. § 404.1567(b).
adequate to support a conclusion.” (citations and internal quotation marks
omitted)). “Substantial evidence is more than a scintilla, but less than a

preponderance.” Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir.
1983) (citations omitted); accord Moore v. Barnhart, 405 F.3d 1208, 1211
(11th Cir. 2005) (per curiam). “The Commissioner’s factual findings are

conclusive if supported by substantial evidence.” Wilson v. Barnhart, 284
F.3d 1219, 1221 (11th Cir. 2002) (citations omitted).6
“In making an initial determination of disability, the examiner must
consider four factors: ‘(1) objective medical facts or clinical findings; (2)

diagnosis of examining physicians; (3) subjective evidence of pain and
disability as testified to by the claimant and corroborated by [other
observers, including family members], and (4) the claimant’s age,

education, and work history.’” Bloodsworth, 703 F.2d at 1240 (citations
omitted). A disability is defined as a physical or mental impairment of such
severity that the claimant is not only unable to do past relevant work, “but
cannot, considering his age, education, and work experience, engage in

any other kind of substantial gainful work which exists in the national

6 Stated otherwise, this Court may not reweigh the evidence or substitute its own
judgment for that of the Commissioner. Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8
(11th Cir. 2004). “If the Commissioner’s decision is supported by substantial evidence
we must affirm, even if the proof preponderates against it.” Id.; see also Viverette v.
Comm’r of Soc. Sec., 13 F.4th 1309, 1314 (11th Cir. 2021). This nuance in Social
Security disability cases is applicable here.
economy.” 42 U.S.C. § 423(d)(2)(A). A disability is 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); see 20 C.F.R. § 404.1509

(duration requirement). Both the “impairment” and the “inability” must be
expected to last not less than 12 months. Barnhart v. Walton, 535 U.S.
212, 224 (2002). In addition, an individual is entitled to DIB if he or she is
under a disability prior to the expiration of his or her insured status. See 42

U.S.C. § 423(a)(1)(A); Moore v. Barnhart, 405 F.3d at 1211; Torres v. Sec’y
of Health & Human Servs., 845 F.2d 1136, 1137-38 (1st Cir. 1988); Cruz
Rivera v. Sec’y of Health & Human Servs., 818 F.2d 96, 97 (1st Cir. 1986).

Plaintiff had to prove that he became disabled on or before December 31,
2023, his date last insured. Tr. 11. A showing that an impairment became
disabling after the expiration of the claimant’s insured status is insufficient
to establish eligibility for DIB. See Mason v. Comm’r of Soc. Sec., 430 F.

App’x 830, 831 (11th Cir. 2011) (unpublished).
The Commissioner analyzes a claim in five steps. 20 C.F.R.
§ 404.1520(a)(4)(i)-(v):

1. Is the individual currently engaged in substantial gainful
activity [SGA]?
2. Does the individual have any severe impairments?

3. Does the individual have any severe impairments that meet
or equal the criteria listed in Appendix 1 of 20 C.F.R. Part
404, Subpart P?

4. Does the individual have the RFC to perform work despite
limitations and are there any impairments which prevent past
relevant work?7

5. Do the individual’s impairments prevent other work?

A positive finding at step one or a negative finding at step two results
in disapproval of the application for benefits. A positive finding at step
three results in approval of the application for benefits. At step four, the
claimant bears the burden of establishing a severe impairment that
precludes the performance of past relevant work. Consideration is given to
the assessment of the claimant’s RFC and the claimant’s past relevant
work. If the claimant can still do past relevant work, there will be a finding

7 An RFC is the most a claimant can still do despite limitations. 20 C.F.R.
§ 404.1545(a)(1). It is an assessment based upon all of the relevant evidence including
the claimant’s description of limitations, observations by treating and examining
physicians or other persons, and medical records. Id.; see SSR 96-8p (July 2, 1996);
see also Schink v. Comm’r of Soc. Sec., 935 F.3d 1245, 1268 (11th Cir. 2019) (per
curiam) (“Consideration of all impairments, severe and non-severe, is required when
assessing a claimant’s RFC.”). The responsibility for determining a claimant’s RFC lies
with the ALJ. 20 C.F.R. § 404.1546(c); see Cooper v. Astrue, 373 F. App’x 961, 962
(11th Cir. 2010) (unpublished) (explaining claimant’s RFC determination “is within the
province of the ALJ, not a doctor”). Relevant medical and other evidence includes,
among other things, medical history, medical signs, and laboratory findings, (i.e., side
effects of medication), daily activities, lay evidence, recorded observations, and ethical
source statements. SSR 96-8p (July 2, 1996).
that the claimant is not disabled. If the claimant carries this burden,
however, the burden shifts to the Commissioner at step five to establish

that despite the claimant’s impairments, the claimant is able to perform
other work in the national economy in light of the claimant’s RFC, age,
education, and work experience. Phillips, 357 F.3d at 1237; Jones v. Apfel,

190 F.3d 1224, 1229 (11th Cir. 1999); Chester, 792 F.2d at 131;
MacGregor v. Bowen, 786 F.2d 1050, 1052 (11th Cir. 1986); 20 C.F.R.
§ 404.1520(a)(4)(v). If the Commissioner carries this burden, the claimant
must prove that he or she cannot perform the work suggested by the

Commissioner. Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987).
A claimant bears the burden of proving he or she is disabled and is
responsible for producing evidence in support of the claim. See 20 C.F.R.

§ 404.1512(a); Moore, 405 F.3d at 1211.
An ALJ was required to weigh a medical opinion under prior
regulations applicable to claims filed before March 27, 2017. See 20
C.F.R. § 404.1520c, abrogating the “’treating-physician rule.’” Harner v.

Soc. Sec. Admin., Comm’r, 38 F.4th 892, 896 (11th Cir. 2022). However,
the regulations applicable to this case remove the treating source rule and
state an ALJ “will not defer or give any specific evidentiary weight, including
controlling weight, to any medical opinion(s). See 20 C.F.R. §
404.1520c(a).8

Stated otherwise, “ALJs are no longer required to give controlling
weight to a treating physician’s opinion, as was mandated by federal
regulations and our prior caselaw in the past.” Webster v. Kijakazi, 19

F.4th 715, 718-19 (5th Cir 2021) (citing “82 Fed. Reg. 5853 (Jan. 18, 2017)
(commenting that the rule change would enable courts to focus on ‘the
content of the evidence [rather] than on the source.’”)).
The relatively new regulations control consideration of the proper

weight given to medical opinions. See 20 C.F.R. § 404.1520c(a)-(c); see
also 20 C.F.R. § 404.1513(a)(2) (defining medical opinion). The

8 Here, the ALJ expressly stated:

As for the medical opinions and prior administrative medical
findings, pursuant to agency policy, I will not defer or give any
specific evidentiary weight, including controlling weight, to any prior
administrative medical findings or medical opinions, including those
from medical sources. I have fully considered the applicable
medical opinions and prior administrative medical findings.
Pursuant to 20 CFR 404.1520c and SSR 17-2p, the above finding
is supported by reports from treating and examining physicians, as
documented in the medical evidence of record. I have considered
these medical source reports, along with opinions from non-
examining Disability Determination Service medical consultants and
addressed them above and below accordingly in evaluating the
claimant’s functional limitations.

Tr. 25. The ALJ considered the medical opinion evidence of record, including the
opinion of Plaintiff’s long-term treating physician, Dr. Ramirez. Tr. 26-27; see also
Tr. 17 (referring to 20 C.F.R. § 404.1529 and SSR 16-3p).
regulations contain a source-level articulation requirement, i.e., the ALJ
considers multiple medical opinions from a source in a single analysis.

20 C.F.R. § 404.1520c(b)(1). The ALJ is not required to address every
limitation identified by a medical source. Id.
Under the regulations applicable to this case, an ALJ must consider

and assess medical opinions based on the following factors: (1)
supportability; (2) consistency; (3) relationship with the claimant; (4) the
specialization of the medical source; and (5) other factors that tend to
support or contradict a medical opinion, including the source’s familiarity

with other evidence in the claim, or understanding of SSA policies and
evidentiary requirements. 20 C.F.R. § 404.1520c(c)(1)-(5). “The most
important factors we consider when we evaluative the persuasiveness of

medical opinions and prior administrative medical findings are
supportability (paragraph (c)(1) of this section) and consistency (paragraph
(c)(2) of this section).” 20 C.F.R. § 404.1520c(a); see also Webster v.
Kijakazi, supra. “Therefore, we will explain how we considered the

supportability and consistency factors for a medical source’s medical
opinions or prior administrative medical findings in your determination or
decision.” 20 C.F.R. § 404.1520c(b)(2).
Regarding “supportability,” “[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) or prior administrative medical
finding(s), the more persuasive the medical opinions or prior
administrative finding(s) will be.” 20 C.F.R. § 404.1520c(c)(1). Regarding

“consistency,” “[t]he more consistent a prior 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). “A medical source may have a better
understanding of your impairment(s) if he or she examines you than if the
medical source only reviews evidence in your folder.” 20 C.F.R.

§ 404.1520c(c)(3)(v). “When we consider the medical source’s familiarity
with the other evidence in a claim, we will also consider whether new
evidence we receive after the medical source made his or her medical
opinion or prior administrative medical finding makes the medical opinion

or prior administrative medical finding more or less persuasive.” 20 C.F.R.
§ 404.1520c(c)(5). “[ALJs] are not required to adopt any prior
administrative medical findings, but they must consider this evidence
according to §§ 404.1520b, 404.1520c, and 404.1527, as appropriate.”
20 C.F.R. § 404.1513a(b)(1).

When a claimant attempts to establish a disability based on his
subjective complaints, he must provide evidence of an underlying medical
condition in either objective medical evidence confirming the severity of the

alleged symptoms or that the medical condition reasonably could be
expected to give rise to the alleged symptoms. See 20 C.F.R.
§ 404.1529(a) and (b); Wilson, 284 F.3d at 1225-26.
Furthermore, pain is subjectively experienced by the claimant, but

that does not mean that only a mental health professional may express an
opinion as to the effects of pain. One begins with the familiar way that
subjective complaints of pain are to be evaluated:

In order to establish a disability based on testimony of
pain and other symptoms, the claimant must satisfy two
parts of a three-part test showing: (1) evidence of an
underlying medical condition; and (2) either (a) objective
medical evidence confirming the severity of the alleged
pain; or (b) that the objectively determined medical
condition can reasonably be expected to give rise to the
claimed pain.

Wilson, 284 F.3d at 1225. See 20 C.F.R §§ 404.1529 (explaining how
symptoms and pain are evaluated); 20 C.F.R. § 404.1545(e) (regarding
RFC, total limiting effects).9 This is guidance for the way the ALJ is to
evaluate the claimant’s subjective pain testimony because it is the medical

model, a template for a treating physician’s evaluation of the patient’s
experience of pain.
To analyze a claimant subjective complaints, the ALJ considers the

entire record, including the medical records; third-party and Plaintiff’s
statements; the claimant’s daily activities; the location, duration, frequency,
and intensity of pain or other symptoms; the type and dosage,
effectiveness, and side effects of medication; precipitating and aggravating

factors; treatment, other than medication, received for pain or other
symptoms; and other factors concerning functional limitations and
restrictions. 20 C.F.R § 404.1529(c)(1), (3)(i-vii). The Eleventh Circuit has

stated: “credibility determinations are the province of the ALJ.” Moore, 405
F.3d at 1212 (“The ALJ may discount subjective complaints of pain if
inconsistencies are apparent in the evidence as a whole.”).
The credibility of the claimant’s testimony must be considered in

determining if the underlying medical condition is of a severity which can
reasonably be expected to produce the alleged pain. Lamb v. Bowen, 847

9 Although the ALJ did not expressly refer to the three-part standard, based on
the ALJ’s findings, discussion, and citation to 20 C.F.R. §§ 404.1529 and Social
Security Ruling 16-3p, Tr. 17, see also Tr. 28, it is clear the pain standard was applied.
Wilson, 284 F.3d at 1226.
F.2d 698, 702 (11th Cir. 1988); see Moore v. Barnhart, 405 F.3d at 1212
(“credibility determinations are the province of the ALJ”). If an ALJ refuses

to credit subjective pain testimony where such testimony is critical, the ALJ
must articulate specific reasons for questioning the claimant’s credibility.
See Wilson v. Barnhart, 284 F.3d at 1225. Failure to articulate the reasons

for discrediting subjective testimony requires, as a matter of law, that the
testimony be accepted as true. Id. On the other hand, “[a] clearly
articulated finding with substantial supporting evidence in the record will not
be disturbed by a reviewing court.” Foote v. Chater, 67 F.3d 1553, 1562

(11th Cir. 1995).
IV. Legal Analysis
The ALJ did not err when denying Plaintiff’s application for DIB
benefits.

Plaintiff argues the Commissioner’s decision should be reversed
because the ALJ’s findings regarding the three-part pain standard
established by the Eleventh Circuit are unsupported by substantial
evidence. ECF No. 13 at 4.
1.

Plaintiff argues that he satisfied the first requirement of the pain
standard, Wilson, 284 F.3d at 1225, in light of his underlying medical
conditions, including peripheral neuropathy, lumbar degenerative disc
disease, etc., as evidenced “in the form of objective imaging of [his] lumbar
spine and knees (Tr. 406-05, 722, 1109-10, 1154, 1297).” ECF No. 13 at 6

(citations omitted). Plaintiff further argues that he satisfied the third
requirement of the pain standard because “his objectively determined
medical conditions are of such a severity that they can reasonably be

expected to cause the alleged pain. Their intensity and persistence is
documented by the objective evidence of record such as numerous clinical
signs and symptoms…such as tenderness to palpation, limited and painful
ranges of motion, positive patellar grind tests, positive straight leg raising

(Tr. 1182), presence of spasms, lower back tightness, reduced muscle and
grip strength, and guarding (Tr. 349, 717-18, 1148, 1156, 1168, 1182,
1193, 1195, 1398, 1403, 1408, 1412-13, 1419-20, 1439, 1444, 1449, 1453-

54, 1458-59, 1466-67, 1471, 1475).” ECF No. 13 at 6-7. Noted treatments
further documented his continued complaints along with the opinion of a
nurse practitioner who noted Plaintiff “would benefit from the assistance of
a walking cane to help with ambulation (Tr. 1409, 1455)” which he was later

prescribed.10 ECF No.13 at 7.

10 Plaintiff describes his use of a cane for ambulation and “that he had difficulty
with ambulation due to pain to his knee and neuropathy (Tr. 65-67)” and further
“testified that he was unable to go back to work as a substitute teacher due to a
combination of neuropathy, back pain, and irritable bowel syndrome (Tr. 71).” ECF No.
13 at 7.
The bulk of Plaintiff’s argument pertains to the observations that the
ALJ either failed to consider relevant evidence supporting disability or

misstated the evidence. Plaintiff argues this Court should reverse the
ALJ’s decision because there is also evidence of record that supports his
own assessment of the evidence. However, even assuming arguendo that

a preponderance of the evidence might support Plaintiff’s interpretation,
where substantial evidence also supports the Commissioner’s decision
below, here the ALJ’s decision, this Court will affirm. Viverette, 13 F.4th at
1314. See supra at 7, n. 6. Plaintiff proceeds as follows.

Plaintiff refers to findings by the ALJ that Plaintiff could perform basic
tasks including but not limited to cooking, reading, watching television,
performing household chores such as cleaning, washing dishes, ironing

with encouragement, handling stress or changes in routine, performing
part-time substitute teacher work, and other functions. ECF No. 13 at 7-8,
citing to Tr. 18. Plaintiff notes that the ALJ referred to a function report and
a third-party function report completed by Brandi Porter, but omitted

“significant details” from the same report. Id. See also Tr. 289, 291, 297.
Plaintiff takes issue with the ALJ citing a number of records from
2018 through 2020 which, according to Plaintiff, “is odd given [Plaintiff]

specifically amended his onset date to March 15, 2021, which [according to
Plaintiff] would render those records effectively irrelevant for the purposes
of assessing consistency with [Plaintiff’s] claims (Tr. 19, 58) [Tr. 21].”

ECF No. 13 at 8. (Plaintiff’s original disability onset date was May 1, 2018,
claiming his impairments prevented him from working prior to his amended
onset date of March 15, 2021. Tr. 10. The ALJ’s consideration of medical

records prior to March 15, 2021, was not unreasonable.)
Plaintiff further claims that the ALJ “overlook[ed] key details” when
referencing evidence in the record. ECF No. 13 at 9. Plaintiff refers to
physical examinations of June 23, 2021, and in October 2021, and notes

the ALJ did not refer to evidence which could be construed to be favorable
to him. Id. For example, Plaintiff notes that the ALJ described Plaintiff’s
straight leg raising as negative, but did not refer to other notes of record

which indicated that his straight leg raise was measured at 50° to the right
and 45° to the left, which is far short of negative at 90°. Id.; see Tr. 1085.11
Plaintiff refers to the ALJ’s characterization of his October 2021 treatment
as “‘conservative’ and consisting of ‘physical therapy, knee sleeve, and

mobic (Tr. 22).’” ECF No. 13 at 9. Plaintiff points to other therapies of

11 That same record indicated that Plaintiff’s gait was steady with no device, with
good foot clearance. Right and left strength were all measured at 5/5. Tr. 1085.
Physical therapy evaluation was suggestive of chronic back pain and skilled physical
therapy was recommended. Plaintiff’s rehabilitation potential was rated as fair. Barriers
to rehabilitation were noted as adherence to home exercise program, chronic condition,
and obesity. Id.
“[Plaintiff’s] knee while referencing a paragraph specifically explaining that
a repeat knee injection would be performed in six weeks if pain persisted,”

and also that Plaintiff “might be a candidate for a total knee replacement
(Tr. 1129).” ECF No. 13 at 9; see also discussion of the December 2021
evaluation, claiming that the ALJ “dismissed” critical information. ECF No.

13 at 9; Tr. 22.
Plaintiff refers to Dr. Sam Banner’s consultative examination
referencing “the plethora of positive clinical signs from the examination, but
offered no explanation as to how they are inconsistent with [Plaintiff’s] pain

complaints Tr. 23.” ECF No. 13 at 9. Another inconsistency is noted. Id.
Finally, Plaintiff takes issue with the ALJ’s consideration of the
opinions of Joshua Ramirez, M.D., Plaintiff’s treating neck and back doctor,

and Dr. Sam Banner, D.O., a physical consultative examiner. ECF No. 13
at 10 (referring to Tr. 27, 719, 1328-29). Dr. Ramirez’ opinion was most
favorable to Plaintiff; he opined that Plaintiff was limited to less than a
sedentary RFC with multiple absences, hence disabled. Tr. 1329.

According to Plaintiff, the ALJ rejected Dr. Ramirez’s opinion as it “was
unsupported by the detailed objective evidence and clinical findings,”
without citing supporting evidence. ECF No. 13 at 10; Tr. 27.
Plaintiff vigorously complains that the record supports his “complaints
of pain, attempts at pain management, and objective documentation of pain

causing impairments” and the ALJ “failed to properly apply the standard
and failed to articulate specific reasons to discredit [Plaintiff’s] pain
complaints” all contrary to the Eleventh Circuit pain standard. ECF No. 13

at 11.
Although there is concrete evidence supporting Plaintiff’s claim of
disability, overall, there is reported objective evidence from the record
which is not consistent with Plaintiff’s subjective complaints of disabling

pain. To accept Plaintiff’s argument, requires this Court to substitute the
Court’s view and analysis of the evidence for that of the ALJ. Although a
close call, Plaintiff did not establish additional functional limitations that

precluded activity within the RFC found by the ALJ. Rather, the ALJ
considered Plaintiff’s physical (and mental impairments) and properly
accounted for Plaintiff’s functional limitations in the RFC. See Tr.16-28.
2.

Turning to the ALJ’s decision, the ALJ’s conclusions related to
Plaintiff’s RFC are noted herein. See supra at 5. As a preliminary factual
matter, the ALJ considered Plaintiff’s background having attained the age
of 50 years. Tr. 17. The ALJ recounted Plaintiff’s comments made in
claim forms and reports, alleging numerous impairments. Id.

The claimant reported these symptoms caused him
difficulty with sleeping, balancing, concentrating,
remember[ing] his medications, wearing shoes, lifting
over 5-10 pounds, squatting, bending, kneeling, climbing
stairs, seeing without corrective lenses, completing tasks,
using hands, and sitting, standing, or walking long
distances (B7E, B8E, B9E, B20E). The claimant also
reported that his impairments did not stop him from
working part time (B1E). In addition, though his
medications caused low blood sugar, confusion,
constipation, diarrhea, stomach pain, sleeplessness, and
unsteadiness, the claimant reported that they were able to
successfully alleviate his back pain and sometimes
relieve his other symptoms (B7E, B8E, B9E, B14E).
Third-party reports further corroborated his symptoms that
he had difficulty remembering his grooming and
medications, but it noted that he also did part-time work
as a substitute teacher on his good days (B8E).

Tr. 17-18.

The ALJ also recounted Plaintiff’s hearing testimony in some detail,
including that
he was primarily disabled due to Type II diabetes mellitus
with neuropathy in the toes, irritable bowel syndrome, and
back pain. He also testified to having a right knee injury
and disabling depression, and that he was currently living
in Florida with family. However, he also confirmed that he
had been living independently up until 2021.

Tr. 18. Frequent bowel movements, prior to taking Metformin, and his A1c
sugar levels are noted. Id.
There is some uncertainty regarding his last A1c level test “as he had
been frequently driving/flying back and forth between Texas and Florida,

living with a friend in Texas, visiting family, and getting care in the area.”
Id.
He further testified that he has been using a single prong
cane “pretty much every day” since his slip and fall
accident, for his persistent knee pain, back pain, and the
numbness in his toes. He characterized his pain as sharp
and shooting. He also estimated that he could not walk
far without his cane, possibly only between 205-50 yards
since his slip and fall. Prior to that he was generally able
to walk around a quarter of a mile. The claimant also
stated that he was unsure why he did not report his slip
and fall to his VA providers, had been noncompliant with
his CPAP machine use, and confirmed that he has not
had any treatment or prescription medication for his
depression. The claimant’s remaining testimony at the
hearing was otherwise generally consistent with the
information provided on his claim forms (Hearing
Testimony).

Tr. 18.
The ALJ determined that Plaintiff’s “statements about the disabling
intensity, persistence, and limiting effects of his symptoms” were “internally
inconsistent and somewhat unsupported by the reported information[,]” and
stated:
Though the claimant alleged disabling exertional,
postural, manipulation, and mental limitations, he also
reportedly could still cook, read, watch television, perform
household chores such as cleaning, washing dishes, and
ironing with encouragement, handle stress or changes in
routine, perform part time substitute teacher work, follow
instruction, walk short distances, drive, ride in a car, go
outside daily without accompaniment, shop over the
internet, handle his own finances, and perform personal
care with no problems (B8E, B9E).[12] The claimant also
allegedly could still spend time with others in person and
over the phone daily, make medical appointments, and
had no problems getting along with family, friends,
neighbors, or authority figures (B8E)[13]

Moreover, the claimant’s statements about the disabling
intensity, persistence, and limiting effects of his symptoms
are also not fully supported by the medical record. For
example, turning to the medical evidence, the record
shows the claimant has established the medically
determinable impairments of Type II diabetes mellitus
with peripheral neuropathy; lumbar degenerative disc
disease; irritable bowel syndrome; hypertension; and right
knee chondromalacia. However, the medical record does
not support the intensity, persistence, or limiting effects of
the claimant’s related symptoms, to the disabling extent
alleged.
Id.
Thereafter, the ALJ discussed Plaintiff’s extensive physical
complaints, diagnoses, and treatments. Tr. 19-25. The ALJ recounts
Plaintiff’s presentations to VA facilities in Tallahassee and Gainesville

12 Plaintiff was able to work part-time after his alleged onset date. Tr. 17, 67-68,
270-71, 296. See 20 C.F.R. § 404.1529(c)(vii); see also 20 C.F.R. § 404.1571
(work…that you have done during any period in which you believe you are disabled may
show that you are able to work at the substantial gainful activity level).
13 Although not dispositive, the claimant’s activities may show that his symptoms
are not as limiting as alleged and as reflected in the ALJ’s RFC. See Macia v. Bowen,
829 F.2d 1009, 1012 (11th Cir. 1987); 20 C.F.R. §§ 404.1527(c)(4), 404.1529(c)(3)(i);
SSR 16-3p. But see Lewis v. Callahan, 125 F.3d at 1441 (“participation in everyday
activities of short duration, such as housework or fishing” does not disqualify a claimant
from disability).
between July of 2016 and August of 2022. Tr. 19. Plaintiff had a history of
reporting obstructive sleep apnea, knee pain, Type II diabetes mellitus,

hypertension, hyperlipidemia, migraines, obesity, and allergic rhinitis. Id.
Continuing gastrointestinal symptoms are recorded in February and March
of 2021. Id.

In June 2021, Plaintiff “presented with complaints of persistent low
back pain (B4F/360).” See Tr. 1084. “He reported pain around 6 out of a
maximum 10 in intensity despite TENS unit use and over the counter
medication. He also reported an exacerbating accident fall two months

prior, and that he could only walk around ¼ of a mile twice a week due to
his waxing and waning right knee pain. Upon examination, the claimant
appeared alert, oriented in all three spheres, with a steady gait, negative

straight leg raise testing and normal motor strength. The claimant was
treated with therapy, gait training, exercise, and gait training.” Tr. 19.
Continued bowel irregularity was reported in July 2021. Id.
In August 2021, Plaintiff had a gastroenterology consultation when he

“was diagnosed with mixed irritable bowel syndrome, and he was treated
with adjustments to his conservative medications.” He reported no pain.
Tr. 20. In September 2021, Plaintiff followed up “on his hypertension with

complaints of allergy fare up” with pain reported around “a 7 out of a
maximum 10 in intensity, noncompliance with his hypertension
medications, and difficulty using his CPAP machine.” Id.

In October 2021, Plaintiff had a “follow up on his diabetes mellitus
and non-proliferative diabetic retinopathy with bilateral macular edema
(B7F/23-26).” Id.

He continued to complain of obstructive sleep apnea and
allergic rhinitis. Upon examination, he demonstrated
bilateral 20/25 vision. He was diagnosed with diabetes
with mild diabetic retinopathy, a right chorioretinal scar,
and bilateral refractive error with presbyopia. The
claimant was generally treated with adjustment to his
conservative medications and monitoring.

Id. Further,
[i]n August and November of 2021, claimant missed
outpatient physical therapy services and was marked as
homeless due to relinquishing his voucher to move to
Marianna to take care of his elderly mother (B2F/184,
B4F/29, B7F/12-20, 42). However, it was noted that he
demonstrated normal mental signs, and was living
independently and effectively managing his personal and
financial affairs. In December 2021, the claimant
continued to report worsening stomach pains and
accidental bowel movements and requested a doctor’s
letter to establish the condition for his disability application
(B7F/11).

Id.
Plaintiff irregularly presented for follow-up on his diabetes mellitus
and other reported conditions from September 2021 through March 2022
(B8F/16-20). Id.
However, he denied chest pain, shortness of breath,
nausea, vomiting, abdominal pain, polyuria, and
polydipsia. Upon examination, the claimant was around
74 inches tall and weighed around 254 pounds. He
appeared awake, alert, oriented, and with normal speech
and nonlabor breathing. Routine laboratory workups
were unremarkable. He was diagnosed with Type 2
diabetes mellitus, dyslipidemia, diabetic neuropathy,
obesity, vitamin D deficiency, obstructive sleep apnea,
and irritable bowel syndrome. He was treated with CPAP
machines, adjustment to his conservative insulin
medications, and referrals for eye examinations. The
claimant periodically presented for follow-up laboratory
workups of medication management through April of 2022
(B8F).

Id.
In October 2016, Plaintiff had a motor vehicle accident and presented
to the Bone and Joint Clinic for treatment from October 2016 until March
2022. Tr. 20. Complaints, treatments, and MRI results are noted. Id.
He reported around 50% improvement, but only
temporarily, as well as not working since June 2018. By
October 2018, the claimant’s provider was still writing him
doctors notes stating that he was unable to work due to
ongoing treatments over 2-3 months for his persistent
residual neck and back pain (B1F/12).

Tr. 21.
“From October 2018 to April 2019, the claimant regularly presented
for follow up medication management for his persistent low back and right
hip pain. He denied any medication side effects but reported pain around
a 6-7 out of a maximum 10 in intensity.” Id.
[I]n December of 2019 the claimant requested a doctor’s
note for an additional 90 days off of work from the post
office, but his provider noted it was not medically
warranted (B1F/5). In March of 2020, the claimant
returned with reports of worsening symptoms of bilateral
hip and low back pain, with shooting right leg pain and
numbness and tingling in the feet (B1F/1). He endorsed
exacerbation from sitting more than standing, he denied
any medication side effects.
Id.

Upon examination [at the Bone and Joint Clinic], the
claimant was 6 feet 2 inches tall, weighed around 227-
260 pounds, and had blood pressure around 139/91
(B1F). He appeared alert, oriented in all three spheres,
and in no acute distress. He exhibited no difficulty
moving the extremities, regular heart rate and rhythm,
unlabored respiration, a soft/nontender abdomen, and no
edema or significant tenderness to palpation. He
demonstrated normal motor strength, intact sensation,
normal reflexes, negative straight leg raise testing, and no
clonus. However, he exhibited an antalgic gait and
reduced 1+ pedal pulses, as well as intermittent
tenderness over the right greater trochanter. The
claimant was diagnosed with lumbar degenerative disc
disease, lumbar facet syndrome, mild L4-L5 left foraminal
stenosis, L4-L5 annular tear with fissure, right sacroiliac
joint pain, status-post motor vehicle accident, and a
history of lumbar radiofrequency ablation. The claimant
was treated with unsuccessful rounds of injection therapy,
physical therapy, and conservative medication, and he
was recommended for a lumbar medial branch
block/rhizotomy. Though it was noted the claimant was
prescribed Tylenol #3, it was discontinued after he
refused follow up drug screens (B1F/7).

Tr. 21
“From June to November of 2021, the claimant also periodically
presented to North Florida Sports Medicine Clinic for diagnoses and

treatment (B5F).” Tr. 21. Plaintiff had a slip and fall at a restaurant in June
2021 resulting in complaints of persistent right knee and low back pain.
Plaintiff reported Intermittent back issues since the 2016 motor vehicle

accident “as well as a long break [and] right knee pain treatment prior to
this exacerbation (B5F/22, 39).” Id. By July 2021, Plaintiff “was still
exhibiting an antalgic gait” and “MRIs showed micro tearing of the right
distal quad tendons and proximal patellar tendon, as well as

chondromalacia changes in the medial compartment of the right knee (B5
F/18, 23-26). The diagnostic imaging also showed a L4-L5 disc bulge with
mild to moderate spinal canal stenosis.” Id.

In August 2021, Plaintiff “presented with complaints of intermittent
residual back pain around an 8 out of a 10 maximum in intensity, and
persistent right knee pain around a 7 out of a maximum 10 (B5 F/28). He
characterized his pain as achy, sleepy, weak, and sore, and he exhibited

[an] abnormal guarded gait.” Tr. 21-22.
In October of 2021, Plaintiff returned [to the North Florida
Sports Clinic] with complaints of persistent right knee pain
since his slip and fall, characterized at a 6 out of a
maximum 10 in intensity (B5F/20-22). He endorsed
decreased right knee strength and difficulty walking. He
exhibited some mild right knee swelling, tenderness to
palpation in the medial joint, and a slight limp. He was
treated with right knee cortizone shots, which reportedly
brought significant improvement. However, by November
2021, the claimant returned with complaints of continued
right knee pain (B5F/1). Upon serial examination, the
claimant was generally 6 feet 2 inches tall, weighed
around 255-262 pounds, had blood pressure around
100/70, and had a BMI of 33.5. He showed no tenderness
to palpation and ambulated without difficulty, but he also
showed pain with full range of motion. His other physical
findings were generally benign. The claimant was
diagnosed with right knee pain with degenerative
changes, as well as lumbar intervertebral disc
displacement, muscle spasm and sprains of the thoracic
and lumbar spine, sacral somatic dysfunction of the sacral
region, and neuropathic pain. The claimant’s
conservative treatments, physical therapy, knee sleeve,
and Mobic were continued. He was also recommended
to avoid sports, domestic work, and heavy lifting during
treatment (B5F/31).

From July to December of 2021, the claimant also
periodically presented to Magnolia Chiropractic Clinic for
consultation and treatment (B6F). The claimant initially
presented following a slit and fall with complaints of
residual acute low back pain and inner right knee pain.
He endorsed intermittent pain around 6-9 out of a
maximum 10 in intensity, characterized as non-radiating,
achy, tight, sore, and stiff. He reported exacerbation by
bending, carrying, lifting, pushing, pulling, reaching,
sitting, or squatting. In December of 2021, the claimant
again returned with complaints of residual intermittent
back pain around 7 out of a maximum 10 in intensity.
Upon examination, the claimant was…, weighed around
235-255 pounds, and had blood pressure around 115/80–
130/95. He demonstrated an abnormal guarded gait,
lumbosacral muscle spasms, pain with lumbar range of
motion, decreased 4/5 lower extremity strength bilaterally,
pain with right knee motion, and somewhat diminished
patellar and Achilles reflexes. By December of 2021, he
was exhibiting two lumbar paraspinal trigger point
tenderness, antalgic gait, decreased bilateral L5-S1
sensation, slightly reduced right knee range of motion,
reduced lumbar range of motion, reduced 3-4/5 hip
strength, and reduced 4/5 ankle and to strength, but
otherwise showed negative straight leg raise testing,
normal sensation, normal lower extremity strength, and
otherwise benign physical signs. The claimant was
diagnosed with lumbar sprain and right knee effusion, as
well as lumbar intervertebral disc displacement,
segmental and somatic sacral dysfunction, and
neuropathic pain. He was treated with adjustments,
trigger point injections, and conservative therapies for
which it was noted he responded well to treatment.

Tr. 22.
In July 2021, an independent consultative examiner, Dr. Banner,
conducted a physical exam of Plaintiff, (B3F). Tr. 22-23. Plaintiff’s
reported medical history and examination are discussed. Id. “Dr. Banner
diagnosed the claimant with severe constant irritable bowel syndrome,
Type 2 diabetes mellitus, bilateral foot pain, chronic lower back pain,
bilateral knee pain, sleep apnea, and a history of untreated hypertension.”
Tr. 23.
From January to July of 2022, the claimant also
periodically presented to Texas Healthcare Neck and
Back Clinics for consultation and treatment of his
persistent low back and right knee pain (B11F). In
January of 2022, the claimant presented for follow up on
a slip and fall accident with residual low back and right
knee pain (B11F/2-10). He endorsed moderate dull pain
radiating to the right leg on a frequent basis. He reported
a history of low back injury in 2016 from a motor vehicle
accident, with residual pain around a 3 out of a maximum
10 in intensity, and exacerbated pain to around a 7 out of
a maximum 10 since his slip and fall. He also reported
missing seven months of work since the slip and fall.
Upon serial examination, the claimant demonstrated a
normal gait, normal L1-S1 myotomes, normal balance
and neurological signs, normal reflexes, stable Apley’s
Compression Test, no joint effusion, and normal
sensation. However, he also showed pain with right knee
motion, tenderness to palpation over the right knee
medical joint line, a restricted thoracolumbar range of
motion in all planes, and tenderness to palpation on
thoracic, lumbar, and gluteal trigger points. Follow up
lumbar imaging showed lumbar intervertebral disc
displacement (B11F/12). The claimant was initially
diagnosed with lumbar and lower extremity segmental
and somatic dysfunction, low back strain, thorax wall
strain, right knee sprain, and muscle spasm. During his
regular follow ups, he received diagnoses of right knee
chondromalacia and right knee pain aggravated by a fall,
as well as L4-L5 disc herniation and lumbar
facet/ligament injury. The claimant was treated with
conservative and chiropractic care. It was noted that his
low back pain was slowly improving with continued
activity related flare ups, but he continued to report
persistent right knee pain despite injection therapy
(B11F/19). The claimant was released from care in July
of 2022.

From March to August of 2022, the claimant also
periodically presented to the Comprehensive Spine
Center of Dallas for consultation and treatment of his
persistent lumbar and right knee pain (B9F, B13F, B14).
Review of the record shows a history of hernioplasty in
2021, anxiety, and low back injury in 2016 with a
subsequent lumbar medical branch block in 2017. It was
noted that he reported improved symptoms until his
exacerbating slip and fall in June of 2021 (B9F/2-13,
B13F/1-12). In March and April of 2022, the claimant
presented with complaints of residual right knee and low
back pain from a slip and fall in June of 2021. Prior to his
fall he alleged his osteoarthritic right knee pain was
tolerable, and he reported no current relief from over-the-
counter treatments or biweekly chiropractic care. He
reported ongoing trigger point injections and conservative
medication. He endorsed peripheral neuropathy,
diabetes mellitus, insomnia, hemorrhoids, diarrhea,
constipation, abdominal pain, medial right knee pain, and
lumbar pain with exacerbation from twisting, lifting, and
prolonged sitting. He also reported difficulty bending,
squatting, and running. However, he also denied
radicular symptoms and repeatedly denied any bowel or
bladder dysfunction. By his recent visit in May of 2022,
he was reporting through telemedicine that he was having
increased difficulty walking and requested a prescription
cane. His treating physician continued his conservative
treatments after further injection therapies were declined
(B9F/21, B13/22). The record also shows that in May of
2022, the claimant’s request for a walking cane was
approved by a Dr. Arash Bidgoli, who certified the
assistive device was medically necessary (B14F).
However, the available record showed no accompanying
medical exam was performed and no related medical
impairment was checked off on the approval form. By
June of 2022, he was reporting moderate relief from right
knee injections, and he underwent an L3-L5 medical
branch block with a reported a temporary 70% reduction
in symptoms (B9F/27-30). He continued to report achy,
constant, and throbbing lumbar pain, right knee popping,
and exacerbation with prolonged weightbearing activities.
By August of 2022, the claimant was presenting for follow
up via telehealth with reports of improvement in his knee
pain, with good progress and only intermittent exertion
related flare ups (B13F/44). He also requested only
conservative treatments for his lumbar pain, denying
further injections due to some improvement here as well.
The claimant further requested to be released from his
therapy program.
Upon serial examination, the claimant was…, weighed
around 245 pounds (B9F, B13F). He appeared well-
groomed, well developed, pleasant, cooperative, alert,
oriented in all three spheres, and with a normal mood and
affect, and with appropriate insight. He exhibited normal
heel-toe and tandem walking, no edema, normal
sensation, negative straight leg raise testing, a stable
right knee, and full motor strength. However, he showed
right knee tenderness to palpation on the medical femoral
epicondyle and medical joint line, a positive patellar grind
test, L3-L5 tenderness to palpation, and reduced lumbar
and right knee range of motion. Follow up MRIs showed
L4-L5 disc bulging with mild to moderate spinal canal
stenosis, and right knee chondromalacia with joint
effusion but no meniscal tearing. The claimant was
diagnosed with right knee chondromalacia aggravated by
a fall, lumbar facet and ligament injury, and lumbar L4-L5
disc herniation. The claimant was treated with tramadol,
a series of right knee and L4-S1 injections, low impact
exercise, and stretching. He generally reported some
post injection and medial branch block improvement, but
some continued symptoms.

Tr. 23-24.
After referring to Plaintiff’s medical records which are substantially
reported above, the ALJ concludes that “the medical record does not
support the intensity, persistence, or limiting effects of the claimant’s
impairment related symptoms to the extent alleged. However, taking into
consideration the intensity and pervasiveness of his symptoms as
consistent with the detailed record,” the ALJ found “that the exertional,
postural, environmental, and restroom related limitations in the above
[RFC] adequately address the claimant’s combined medically determinable
impairments.” Tr. 24-25.

The ALJ continued:
Addressing his reportedly worsening knee pain, the
record shows only evidence of micro tears. Furthermore,
a few weeks after the fall he sustained in 2021, he
reported to the VA that he was walking ¼ mile twice a
week (B4F/32). The claimant also testified that he
frequently traveled back and forth from Florida to Texas
and admitted to driving to and from there on at least one
occasion (Hearing Testimony). Though the claimant’s
doctor opined use of a cane was medically necessary,
and the claimant requested a prescription cane during a
telehealth visit early in May of 2022, later that month he
was able to perform tandem and heel-toe walking, and it
was noted that his knee was stable (B9F/24, 25). Prior
examinations in March and April of 2022 showed full
motor strength. Later exams after his slip and fall do
show some gait disturbance; however, the available
record shows no significant objective evidence regarding
his knee and back to support more than temporary
restriction here. The included exertional, postural, and
environmental limitations adequately address these
concerns. As far as his irritable bowel syndrome, there
the available record showed no objective evidence of a
significant gastrointestinal disorder, and his symptoms are
adequately addressed with the included outdoor
work/restroom access limitation.

Tr. 25
3.
At this point in the decision, the ALJ considered “the physician
opinion evidence” of the Disability Determination Service reviewing
physicians, Dr. Prianka Gerrish, M.D., (reconsideration-March 28, 2022,
(B3A) Tr. 95-102), and Dr. Steven Arkin, M.D., (initial-August 25, 2021,
(B1A) Tr. 85-93) and concluded they were both “persuasive overall.”

Tr. 25-26.14 The ALJ found Dr. Gerrish’s assessment persuasive overall
(B3A).
Dr. Gerrish reviewed the record and completed a residual
functional capacity assessment in March of 2022. Dr.
Gerrish diagnosed the claimant with severe unspecified
arthropathies. She recommended light exertional
limitations, and up to six hours of sitting, six hours of
standing, and six hours of walking. In addition, she
recommended the claimant was limited to occasional
climbing of ramps, stairs, ladders, ropes, or scaffolds;
frequent balancing or stooping; and occasional kneeling,
crouching, or crawling. She additionally recommended the
claimant avoid concentrated exposure to workplace
hazards such as moving machinery or unprotected
heights. She noted consistent allegations of pain and
limitations on activities of daily living, with confirming
diagnoses and imaging, as well as examination reports
showing improvement with cortisone injections, normal
ambulation, no tenderness to palpation, pain with full
range of motion, and continued conservative medication.
However, later evidence appearing in the record at the
hearing level supported slightly stricter climbing,
balancing, stooping, kneeling, crawling, and bathroom
access limitations (e.g., B8F-B14F, Hearing Testimony).
As her opinions were generally supported by and
consistent with the detailed longitudinal record, I find them
persuasive overall.

Similarly, the ALJ also found the physical assessment of Dr. Arkin
persuasive overall (B1A).

14 Plaintiff’s amended disability onset date is March 15, 2021. Tr. 10, 58.
Dr. Arkin reviewed the record and completed a residual
functional capacity assessment in August of 2021. Dr.
Arkin diagnosed the claimant with severe disorders of the
skeletal spine. He recommended light exertional
limitations, and up to six hours of sitting, six hours of
standing, and six hours of walking. In addition, he
recommended the claimant was limited to frequent
climbing of ramps and stairs; occasional climbing of
ladders, ropes, or scaffolds; and occasional balancing,
stooping, kneeling, crouching, or crawling. He
additionally recommended the claimant avoid all exposure
to extreme heat, and even moderate exposure to extreme
cold, wetness, humidity, noise, vibration, poor ventilation
and pulmonary irritants, or workplace hazards such as
moving machinery or unprotected heights. He noted
consistent allegations of pain and limitations on activities
of daily living, with confirming diagnoses and imaging, as
well as examination reports showing normal reflexes,
intact fine/gross manipulation, normal gaits, normal upper
extremity strength, intact sensation, normal muscle tone,
negative straight leg raise testing, and no atrophy or
paraspinal muscle spasms, but also abnormal
colonoscopy, decreased 4+/5 bilateral grip strength,
decreased 4+/5 bilateral lower extremity strength,
unsuccessful steroid injection therapy, high BMIs,
difficulty squatting, decreased range of motion, Romberg
ataxia, slow steps, difficulty transferring on and off the
exam table, and provider notes that lifelong medical,
orthopedic, and pain management care is required.
However, later evidence appearing in the record at the
hearing level supported slightly stricter climbing,
balancing, stooping, kneeling, crawling, and bathroom
access limitations. As his opinions were generally
supported by and consistent with the detailed longitudinal
record, I find them persuasive overall.
Tr. 25-26 (emphasis added).15
On July 21, 2021, Dr. Banner conducted a physical assessment of

Plaintiff.16 Tr. 26, 714-24. The ALJ found the independent consultant’s
assessment
only somewhat persuasive (B3F). Dr. Banner reviewed
the record, examined the claimant, and completed a
medial source statement in July of 2021. Dr. Banner
diagnosed the claimant with severe constant irritable
bowel syndrome, Type 2 diabetes mellitus, bilateral foot
pain, chronic lower back pain, bilateral knee pain, sleep
apnea, and a history of untreated hypertension. Although
he did not recommend specific limitations, his objective
findings generally supported the above residual functional
capacity. However, he further opined that the claimant
could need lifelong medical care, orthopedic care, and
pain management, but also that it would be very difficult
for him to sustain gainful employment until some/all of his
medical conditions were resolved (e.g. B4F-B14F,
Hearing Testimony). As later evidence showed, the
claimant was able to receive regular medical care and his
injury related symptoms improved and resolved. As his
opinions were generally supported by the evidence
available at the time, as well as his own notes, I find them

15 The findings of a State agency medical consultant may provide additional
evidence to support the ALJ’s findings. See Jones v. Bowen, 810 F.2d 1001, 1005
(11th Cir. 1986). See also Kemp v. Astrue, 308 F. App'x 423, 427 (11th Cir. 2009)
(unpublished) (“the weight to be given [to] a non-examining physician's opinion,
depends, among other things, on the extent on which it is supported by clinical findings
and is consistent with other evidence.”). Here, the ALJ, contrary to the agency
consultants, determined Plaintiff has “slightly stricter climbing, balancing, stooping,
kneeling, crawling, and bathroom access limitations.” Tr. 25-26.

16 Dr. Banner is not a treating physician, so his opinion was not entitled to
deference or special consideration. See Crawford v. Comm’r of Soc. Sec., 363 F.3d
1155, 1160 (11th Cir. 2004) (citing McSwain v. Bowen, 814 F.2d 617, 619 (11th Cir.
1987) (explaining that one-time medical examiners are not "treating physicians” and
thus “their opinions are not entitled to deference”) (citation omitted).
persuasive where consistent with the above residual
functional capacity.

Tr. 26 (emphasis added).
4.
The ALJ next considered the physical assessment by Plaintiff’s
treating physician, Dr. Joshua Ramirez, D.O., which included a two-page
clinical assessment of pain and physical capacities evaluation (RFC
assessment) (B10F),17 Tr. 1328-29, and found it “unpersuasive overall” and
noted:
Dr. Ramirez had a long-term treating relationship with the
claimant and completed a medical source statement in
July of 2022. Dr. Ramirez noted the claimant had
intractable and virtually incapacitating pain, had greatly
increased pain with physical activity that would cause task
distraction or abandonment, and had severe medication
side effect that cause distraction or drowsiness. He
opined the claimant could lift up to 5 pounds occasionally
and 1 pound frequently, and could sit for up to 1 hour,

17 Notwithstanding Plaintiff’s “long-term treating relationship with” Dr. Ramirez,
generally, courts have found checkbox notations are “not particularly informative” and
are “weak evidence at best.” See Teague v. Astrue, 638 F.3d 611, 615 (8th Cir. 2011)
(“Given that the ‘check-off form’ did not cite any clinical test results or findings and Dr.
Lowder’s previous treatment notes did not report any significant limitations due to back
pain, the ALJ found that the MSS was entitled to ‘little evidentiary weight.’”); Dixon v.
Astrue, No. 5:09-cv-320/RS/EMT, 2010 U.S. Dist. LEXIS 125831, at *46-48 (N.D. Fla.
Oct. 26, 2010) (explaining that ALJ properly rejected opinions expressed by treating
physician on “check-off” type forms where treating physician’s own treatment notes did
not support opinions expressed on those forms); Jones v. Comm’r of Soc. Sec., 478 F.
App’x 610, 612 (11th Cir. 2012) (unpublished) (holding that the boxes checked by the
doctors did not constitute their actual RFC assessment because checking boxes did not
indicate the degree and extent of the claimant’s limitations); see also Foster v. Astrue,
410 F. App’x 831, 833 (5th Cir. 2011) (unpublished) (physicians use of “questionnaire”
format typifies “brief or conclusory” testimony).
stand for up to 1 hour, or walk for up to 1 hour out of an 8-
hour workday. He could rarely push or pull arm or leg
controls, could never balance or climb stairs or ladders,
could occasionally perform gross manipulation, could
frequently perform fine manipulation, could never bend or
stoop, could rarely reach, could occasionally have
exposure to environmental allergens, could never operate
a motor vehicle, and could never work around hazardous
machinery. He further opined the claimant required a
cane for ambulation due to his low back and knee pain,
and he would be absent for more than four workdays per
month.[18] However, his opinion is unsupported by the
detailed objective evidence and clinical findings. The
detailed record shows the claimant’s neuropathy only
affects his toes, he only asked for a cane for ambulation
around four months ago, a restriction that is likely
temporary, and he was able to drive to Texas from Florida
and back (e.g. B9F/24, 25, B13F). As his opinions were
generally unsupported by and inconsistent with the
detailed longitudinal record, I find them unpersuasive
overall.

Tr. 26-27.19
As noted herein, the regulations do not preclude an ALJ from
referring to evidence discussed elsewhere in the decision when evaluating
medical opinions. See generally Rice v. Barnhart, 384 F.3d 363, 370 n.5
(7th Cir. 2004). Further, the ALJ’s decision should be considered as an

18 Dr. Ramirez’s RFC determination is quite at odds with the ALJ’s RFC
determination. Compare Tr. 16-17 and supra at 5 with Tr. 26-27 stated above.

19 Although the ALJ determined Plaintiff’s mental condition, such as depression,
was non-severe, Tr.13, the ALJ considered the mental health opinion evidence of two
Agency reviewing psychologists. Tr. 27.
“entire opinion.” Bradford v. Sec’y of Dep’t of Health & Human Servs., 803
F.2d 871, 873 (6th Cir. 1986).

The ALJ did not err when finding the opinion of Dr. Ramirez
“generally unsupported by and inconsistent with the detailed longitudinal
record” and “unpersuasive overall.” Tr. 27. See Serrano v. Comm’r of Soc.

Sec., No. 4:19cv241-AW-HTC, 2020 WL 5550505, at *7 (N.D. Fla. Aug. 7,
2020) (“The ALJ’s explanation that Dr. Dickens’ opinions are not supported
by the objective examinations is also not conclusory. To the contrary, the
ALJ states that he is referencing the objective examinations discussed

elsewhere in this opinion.”) Stated otherwise, in reading the ALJ’s
decision, it is evident that the ALJ’s consideration of Dr. Ramirez’s opinion
was not erroneous.

Pursuant to the new regulatory framework, the ALJ properly
discussed the supportability and consistency of Dr. Ramirez’s opinion.
Tr. 26-27. The ALJ noted that in July 2022, Dr. Ramirez opined Plaintiff
was limited to lifting 5 pounds; sitting, standing, and walking to 1 hour;

rarely or never engage in most postural activities; only occasionally perform
manipulation; and required a cane for ambulation. Tr. 26-27, 1328-29. The
ALJ determined that Dr. Ramirez’s opinion was unpersuasive. Tr. 27.
Applying the supportability factor, the ALJ explained Dr. Ramirez’s
clinical findings did not support his opinion. Tr. 27. See 20 C.F.R. §

404.1520c(c)(1). Early in the decision, the ALJ explained that
Dr. Ramirez’s objective examinations revealed only mild abnormalities that
he treated with conservative care. Tr. 23, 1331-39, 1341, 1348-49.

Addressing the consistency factor, the ALJ further explained that
Dr. Ramirez’s extreme opinion was inconsistent with Plaintiff’s objective
clinical evidence that showed minimal neuropathy in his admitted evidence
activities including his ability to drive to Texas. Tr. 27, 1316-17, 1436-81.

See 20 C.F.R. § 404.1520c(c)(2). It appears driving to Texas directly
conflicts with Dr. Ramirez’s limitations that Plaintiff could only sit for 1 hour
in an 8-hour day because it required him to drive 12 hours with only 1 stop.

Tr. 60.
The ALJ addressed Dr. Ramirez’s opinion in light of her previous
discussion of the medical evidence thereby incorporating her prior
discussion of the medical evidence and prior administrative medical

findings and her consideration of the opinion evidence. Tr. 26-27. It is not
necessary to recap all of the evidence. See Moore, 405 F.3d at 1212 (“The
ALJ may discount subjective complaints of pain if inconsistencies are

apparent in the evidence as a whole.”).
5.
The ALJ concluded the RFC assessment as follows.

Based on the foregoing, I find the claimant has the above
residual functional capacity assessment, which is
supported by the overall record. The above residual
functional capacity is a reflection of the most work-related
functions that the claimant can do on a regular and
continuous basis since the amended alleged onset date.
As detailed in this decision, a preponderance of the
evidence shows the claimant’s impairments and related
limitations are adequately accommodated by the residual
functional capacity. For example, though the claimant
asked for an assistive device during a May 2022
telehealth appointment, examination findings both before
and after the request do not support the need for a cane.
The claimant has full strength in his lower extremities, his
lumbar MRIs did not show any nerve involvement, and he
only complains of neuropathy in his toes. In his August
2022 visit with Dr. Bigoli, the claimant declined additional
knee injection and asked to be released from treatment
(B13F/44).

Despite his subjective complaints, the available evidence
shows that the claimant’s symptoms are adequately
controlled with both conservative and over the counter
medication, that he is able to ambulate effectively at a
reduced level of exertion without an assistive device, and
that he is able to function adequately in routine activities
of daily living with occasional and/or little assistance. As
detailed in this decision, this is inconsistent with the
claimant’s allegations of disabling limitations, when
considered under the requirements of SSR 16-3p. Based
on the detailed evidence, I find that, though the claimant
had good days and bad days, he can perform work within
the above residual functional capacity on a sustained
basis. Although it is reasonable to find that the claimant
has some limitations in work-related functions resulting
from his impairments, for the reasons explained herein
and in Finding 10, [see Tr. 29-30] the available evidence
does not establish functional limitations that would
preclude all regular and continuous work-related activity
within the bounds of the above residual functional
capacity.

Tr. 28.
6.
The ALJ evaluated Plaintiff’s subjective allegations of pain and
limitations under the proper legal standard and provided reasons for
discounting his subjective complaints of disabling pain, notwithstanding
evidence to the contrary as noted by Plaintiff. The ALJ considered
objective evidence of Plaintiff’s impairments and there is substantial
evidence to support her conclusion that the evidence did not support the
extent of Plaintiff’s complaints or limitations.

As noted herein, the ALJ considered, but rejected, the opinion of
Dr. Ramirez that Plaintiff is disabled in light of his long-term treatment
records and the other medical records of record. No error has been shown.
V. Conclusion

Considering the record as a whole, the findings of the ALJ are based
upon substantial evidence in the record. The decision of the Commissioner
to deny Plaintiff’s application for DIB is AFFIRMED. The Clerk shall enter

Judgment for Defendant.
IN CHAMBERS at Tallahassee, Florida, on January 17, 2024.
s/ Charles A. Stampelos
CHARLES A. STAMPELOS
UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10116828. Public record. Not legal advice.