Moye v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 19-CV-60332-VALLE

CONSENT CASE

DEMETRIA YOLANDA MOYE,

Plaintiff,

v.

ANDREW M. SAUL,1

Commissioner of the

Social Security Administration,

Defendant.

______________________________________/

ORDER ON MOTIONS FOR SUMMARY JUDGMENT

THIS MATTER is before the Court on Plaintiff Demetria Yolanda Moye’s (“Plaintiff”)

Motion for Summary Judgment and Defendant Andrew M. Saul, Commissioner of Social Security

Administration’s (“Defendant”) Motion for Summary Judgment (ECF Nos. 20, 22, respectively)

(together “the Motions”). Pursuant to the parties’ consent, this case is before the undersigned for

all proceedings, including trial and entry of final judgment. (ECF Nos. 15, 16); see also 28 U.S.C.

§ 636(c).

Accordingly, after due consideration of the record, the Motions, Defendant’s Response

(ECF No. 23), Plaintiff’s Reply (ECF No. 25), and being otherwise fully advised on the matter,

Plaintiff’s Motion is DENIED, Defendant’s Motion is GRANTED, and the Administrative Law

Judge’s Decision (“ALJ’s Decision”) is AFFIRMED for the reasons set forth below.

1 After the commencement of this case, Andrew M. Saul became the Commissioner of the Social

Security Administration. Accordingly, pursuant to Federal Rule of Civil Procedure 25(d), the

Clerk is DIRECTED to substitute Andrew M. Saul, Commissioner of Social Security, as

Defendant in this case. See (ECF No. 22 at 1 n. 1).

I. PROCEDURAL HISTORY

This suit initially involved applications for disability insurance benefits (“DIB”) and

supplemental security income (“SSI”) benefits under Titles II and XVI, respectively, of the Social

Security Act, 42 U.S.C. § 401 et seq. (the “Act”). Plaintiff alleged a disability onset date of July

2, 2015. (R. 204).2 Plaintiff’s claims were denied initially and again upon reconsideration.

(R. 88-111, 112-37). Thereafter, Plaintiff requested a hearing, which was held on January 3, 2018

before ALJ Rosanna D’Alessio. (R. 67-87, 159). Plaintiff, who was represented by counsel, and

a Vocational Expert both testified at the hearing. On April 20, 2018, the ALJ issued a decision

denying Plaintiff’s application and finding that Plaintiff was not disabled within the meaning of

the Act.3 (R. 11-26).

Subsequently, the Appeals Council denied Plaintiff’s request for review, rendering the

ALJ’s Decision the Commissioner’s “final decision.” (R. 1-7); see Chester v. Bowen, 792 F.2d

129, 131 (11th Cir. 1986). Plaintiff now seeks judicial review of the ALJ’s Decision. (ECF No. 1);

see also 42 U.S.C. § 405(g). Both parties have moved for summary judgment, and the Motions

are ripe for adjudication.

II. STANDARD OF REVIEW

Judicial review of the ALJ’s Decision is limited to whether there is substantial evidence in

the record as a whole to support the ALJ’s finding and whether the ALJ applied the correct legal

standards in making her determination. Carson v. Comm’r of Soc. Sec., 440 F. App’x 863, 864

2 All references are to the record of the administrative proceeding, which was filed as part of the

Defendant’s Answer. See (ECF Nos. 13 and 14).

3 At the hearing, Plaintiff denied certain wages listed on her 2010 earnings statement. (R. 74, 75).

The elimination of those wages changed Plaintiff’s date last insured for DIB purposes to June 30,

2015, predating her alleged onset date of July 2, 2015. See (R. 12); see also (R. 75-76).

Accordingly, Plaintiff’s DIB application was precluded. (R. 14, 76); see also (ECF No. 20 at 2).

Plaintiff does not challenge this determination.

(11th Cir. 2011) (citations omitted); see also 42 U.S.C. § 405(g). “Substantial evidence is more

than a scintilla and is such relevant evidence as a reasonable person would accept as adequate to

support a conclusion.” Carson, 440 F. App’x at 864 (quoting Crawford v. Comm’r of Soc. Sec.,

363 F.3d 1155, 1158 (11th Cir. 2004)); accord Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir.

1987) (substantial evidence is “more than a scintilla, but less than a preponderance”) (quoting

Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983)). A court, however, “may not

decide the facts anew, reweigh the evidence, or substitute [its] judgment for that of the [ALJ].”

Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011)

(quoting Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir. 2004)). Even if evidence

preponderates against the ALJ’s Decision, a court must affirm “if the decision is supported by

substantial evidence.” Bloodsworth, 703 F.2d at 1239 (citing 42 U.S.C. § 405(g)). Within this

narrow role, however, courts “do not act as automatons.” MacGregor v. Bowen, 786 F.2d 1050,

1053 (11th Cir. 1986); Brightmon v. Soc. Sec. Admin., Comm’r, 743 F. App’x 347, 351 (11th Cir.

2018). Rather, courts “must scrutinize the record as a whole to determine if the decision reached

is reasonable and supported by substantial evidence.” MacGregor, 786 F.2d at 1053 (citing

Bloodsworth, 703 F.2d at 1239); Brightmon, 743 F. App’x at 351 (citation omitted).

To qualify for benefits, a claimant must be disabled within the meaning of the Act. See 42

U.S.C. §§ 423 (standard for DIB), 1382 (standard for SSI). A claimant is disabled if she is unable

“to engage in any substantial gainful activity by reason of any medically determinable physical or

mental impairment which can be expected to result in death or which has lasted or can be expected

to last for a continuous period of not less than twelve months.” 42 U.S.C. §§ 423(d)(1)(A),

1382c(a)(3)(A). A “physical or mental impairment” is one that “results from anatomical,

physiological or psychological abnormalities which are demonstrable by medically acceptable

clinical and laboratory diagnostic techniques.” 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D).

To determine eligibility, the ALJ employs a five-step sequential evaluation:

(1) Is the person presently unemployed?

(2) Is the person’s impairment severe?

(3) Does the person’s impairment meet or equal one of the specific impairments

set forth in 20 C.F.R. Part 404, Subpart. P, Appendix 1 (the “Listings”)?

(4) Is the person unable to perform his or her former occupation?

(5) Is the person unable to perform any other work within the economy?

20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). An affirmative answer to any of the above questions

leads either to the next question or, on Steps 3 and 5, to a finding of disability. McDaniel v. Bowen,

800 F.2d 1026, 1030 (11th Cir. 1986). A negative answer to any question, other than Step 3, leads

to a determination of “not disabled.” Id.

Importantly, the burden of proof rests on the claimant through Step 4. Phillips, 357 F.3d

at 1241 n.10. At Step 4, the ALJ must consider: (i) the claimant’s residual functional capacity

(“RFC”); and (ii) the claimant’s ability to return to her past relevant work. 20 C.F.R.

§§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). The regulations define RFC as that which an individual

is still able to do despite the limitations caused by her impairments. 20 C.F.R. §§ 404.1545(a),

416.945(a). The ALJ will “assess and make a finding about [the claimant’s RFC] on all the

relevant medical and other evidence” in the case. 20 C.F.R. §§ 404.1520(e), 416.920(e). The RFC

assessment is used to determine whether the claimant can return to her past relevant work under

Step 4, and if so, “the ALJ will conclude that the claimant is not disabled.” Phillips, 357 F.3d at

1238 (citations omitted). If a claimant cannot return to her past relevant work, then the ALJ

proceeds to Step 5. Id.

At Step 5, the ALJ considers the claimant’s RFC, age, education, and work experience to

determine whether the claimant “can make an adjustment to other work.” 20 C.F.R.

§§ 404.1520(a)(4)(v), 416.920(a)(4)(v); Phillips, 357 F.3d at 1239 (citation omitted). The ALJ

must determine if there is other work available in significant numbers in the national economy that

the claimant can perform. Phillips, 357 F.3d at 1239. If the claimant can make the adjustment to

other work, the ALJ will determine that the claimant is not disabled. Id. Conversely, if the

claimant cannot make the adjustment to other work, the ALJ will determine that the claimant is

disabled. Id. The ALJ may determine whether the claimant can adjust to other work in the national

economy by either: (1) applying the Medical Vocational Guidelines (contained within 20 C.F.R.

Part 404, Subpart P, Appendix 2); or (2) using a Vocational Expert, who can opine on whether

someone with the claimant’s limitations can obtain employment in the national economy. Id. at

1239-40.

III. THE ADMINISTRATIVE RECORD

A. Claimant’s Background and Hearing Testimony

Plaintiff, born in July 1969, was 48 years old at the time of the administrative hearing.

(R. 67, 201). She has a twelfth-grade education and lives with her daughter, niece, and nephews.

(R. 71-72). Plaintiff worked as a telemarketer, cashier, and cook. (R. 73-75, 85).

Plaintiff testified about her impairments. Plaintiff testified that in December 2014, she was

hit by a car and injured her left ankle. (R. 76). As a result, Plaintiff’s left foot swells, but she has

not received any treatment for this. (R. 76-77). Plaintiff also suffers from multiple sclerosis

(“MS”), which has affected her ability to speak and walk. (R. 77-78). Plaintiff uses a cane, which

was not prescribed by a doctor, to help with her MS. (R. 77, 84). Plaintiff uses the cane every day

and can walk for about five minutes before having to stop due to left leg pain. (R. 78-79). Plaintiff

testified that she can stand for approximately five minutes, sit for 30-45 minutes, and lift five to

ten pounds. (R. 79-80). Plaintiff’s MS affects her ability to dress herself, bathe, and grasp objects.

(R. 78). Plaintiff’s MS is treated with an injection, but she could not recall the name of the

medication. (R. 86).

Plaintiff testified that she has chest pain every day, and she must sit down when she is in

pain. (R. 81-82). Other than her chest pain, Plaintiff does not have any other pain in her body.

(R. 82). Furthermore, Plaintiff’s diabetes is asymptomatic and under control. (R. 81).

Plaintiff’s daily activities include eating, taking her medicines, and watching television.

(R. 80). Plaintiff sleeps about five hours in a typical night. (R. 80-81). Plaintiff cannot sweep or

mop the floor for more than five minutes because she tires quickly. (R. 81). Plaintiff testified that

she has trouble with her concentration and memory, and has no hobbies or social activities.

(R. 82-83).

During the hearing, the ALJ noted Plaintiff’s counsel’s request that the ALJ subpoena

records from Broward Health. (R. 83). The ALJ indicated that she would try to obtain these

records without a subpoena. (R. 83-84). Plaintiff’s counsel advised the ALJ that the Broward

Health records dealt with a two or three-night inpatient stay for breathing trouble. (R. 83, 86).

B. Vocational Expert’s Testimony

A Vocational Expert (“VE”) testified at the hearing and categorized Plaintiff’s past relevant

work as a cashier II (an unskilled, light job with an SVP of 2) and cashier-checker (a semi-skilled,

light job with an SVP of 3). (R. 85).

The ALJ did not pose any hypothetical questions to the VE, as Plaintiff could perform a

full range of sedentary work. In response to a hypothetical from Plaintiff’s counsel, the VE

testified that an individual who missed work four or more days a month could not perform

Plaintiff’s past relevant work. (R. 85). The VE added that if the individual needed a 30-minute

break every three to four hours in addition to normal breaks, that individual would not be able to

work. (R. 86).

C. Medical Records

Between December 2014 and March 2018, Plaintiff saw various doctors for treatment of

multiple sclerosis, hypertension, diabetes mellitus, and obesity. Among these, Plaintiff was treated

by doctors at Path Medical Center, Pompano Adult Primary Care Center (later known as The Annie

L. Weaver Health Center), Northwest Medical Center, and JFK Medical Center. These records

are discussed below as they pertain to Plaintiff’s arguments.

IV. THE ALJ’S DECISION

After reviewing the evidence and conducting the requisite five-step analysis, the ALJ

concluded that Plaintiff “has not been under a disability within the meaning of the Social Security

Act from July 2, 2015 through the date of this decision.” (R. 12, 21).

At Step 1, the ALJ determined that Plaintiff has not engaged in substantial gainful activity

since July 2, 2015, the alleged onset. (R. 14).

At Step 2, the ALJ found that Plaintiff had the following severe impairments: multiple

sclerosis; hypertension; hyperlipidemia; diabetes mellitus; obesity; and cardiomyopathy. Id.

At Step 3, the ALJ concluded that Plaintiff did not have an impairment or combination of

impairments that meets or medically equals the severity of one of the Listings. Id.

Next, the ALJ determined that Plaintiff had the RFC to perform the full range of sedentary

work.4 (R. 15).

4 Sedentary work includes the ability to: (i) lift and/or carry up to 10 pounds occasionally and 5

pounds frequently; (ii) stand/walk for 2 hours in an 8-hour workday; and (iii) sit for 6 hours in an

8-hour workday. See 20 C.F.R. §§ 404.1567(a), 416.967(a); see also Soc. Sec. Ruling 83-10, 1983

WL 31251, at *5 (S.S.A. Jan. 1, 1983).

At Step 4, after considering the VE’s testimony and Plaintiff’s RFC, the ALJ determined

that Plaintiff was unable to perform her past relevant work as a cashier. (R. 20). While Plaintiff’s

RFC limited Plaintiff to a full range of sedentary work, Plaintiff’s cashier job required performance

at the light exertional level. (R. 20). Accordingly, the ALJ proceeded to Step 5 of the evaluation

process. (R. 20).

At Step 5, relying on the Medical-Vocational Guidelines, the ALJ concluded that

considering Plaintiff’s age, education, work experience, and RFC, there are other jobs that exist in

significant numbers in the national economy that Plaintiff can perform despite her limitations.

(R. 21). Accordingly, the ALJ concluded that Plaintiff was not disabled.

V. DISCUSSION

Plaintiff raises five arguments on appeal. First, Plaintiff argues that the ALJ erred in

assigning “no weight” to the opinion of Dr. Bashir Shaikh, whom Plaintiff labels a treating source.

(ECF No. 20 at 10-13). Second, Plaintiff argues that the ALJ failed to “fully and fairly” develop

the administrative record. Id. at 13-15. Third, Plaintiff argues that the ALJ did not properly

consider whether Plaintiff’s heart condition met or equaled Listing 4.04. Id. at 15-16. Next,

Plaintiff argues that the ALJ erred in assessing Plaintiff’s credibility. Id. at 16-17. Lastly, Plaintiff

challenges the constitutionality of the ALJ’s appointment. Id. at 17-18.

For the reasons discussed below, the undersigned finds that the ALJ applied the proper

legal standards and that her Decision is supported by substantial evidence. The undersigned also

finds that Plaintiff’s Appointments Clause challenge fails as untimely. Because the Appointments

Clause challenge is a legal and procedural argument, the undersigned will address it first.

A. Plaintiff’s Appointments Clause Challenge is Untimely

Relying on the Supreme Court case Lucia v. SEC, 138 S. Ct. 2044 (2018), Plaintiff asserts

that Social Security Administration (“SSA”) ALJs are unconstitutionally appointed under the

Appointments Clause, and the Court must therefore remand her case to be heard by a different and

constitutionally appointed ALJ. See (ECF Nos. 20 at 17, 25 at 10). Pursuant to the Appointments

Clause of the United States Constitution, “Officers of the United States” may be appointed only

by the President, “Courts of Law,” or “Heads of Departments.” U.S. CONST. Art. II., § 2, cl. 2.

In Lucia, the Supreme Court addressed an Appointments Clause challenge to an ALJ

appointed by the Securities and Exchange Commission (an “SEC ALJ”). Lucia, 138 S. Ct. at

2049-50. Lucia faced charges of misleading investors in connection with the sale of retirement

products. Id. at 2050. During the hearing that followed, the SEC ALJ found that Lucia’s products

were, in fact, misleading, required Lucia to pay substantial fines, and permanently banned Lucia

from working in the investment industry. Id. Lucia appealed the ALJ’s unfavorable decision to

the SEC, arguing that the ALJ had not been properly appointed under the Appointments Clause.

Id. After losing that appeal, Lucia sued in federal court, challenging the penalties imposed by the

SEC ALJ and reiterating his earlier Appointments Clause argument. Id. The D.C. Circuit Court

of Appeals denied the challenge. Thereafter, the Supreme Court heard the case, reversed the

decision, and remanded the case so that Lucia’s agency appeal could be heard by a different ALJ

who had been properly appointed under the Appointments Clause. Id. at 2055.

The Supreme Court in Lucia did not specifically address the constitutionality of the

appointment of ALJs working for other federal agencies, including the SSA. Nonetheless,

following Lucia, Social Security claimants have challenged the status of SSA ALJs under the

Appointments Clause. See, e.g., Gagliardi v. Social Security Administration, No. 0:18-CV-62106,

at ECF No. 35 (S.D. Fla. Jan. 17, 2020), report and recommendation adopted, No. 0:18-CV-62106,

at ECF No. 38 (S.D. Fla. Feb. 28, 2020) (appeal filed Feb. 28, 2020). Similarly, Plaintiff here

argues that Lucia applies to SSA ALJs, requiring this Court to vacate the current ALJ’s Decision

and remand the case to a different ALJ appointed in accordance with the Appointments Clause.

See (ECF Nos. 20 at 17, 25 at 10).

In response, the Commissioner argues that Plaintiff’s argument is untimely in that she

failed to raise her Appointments Clause challenge during the administrative process, thereby

forfeiting this argument. See (ECF No. 22 at 17-24). Plaintiff asserts, however, that “this is the

first opportunity Plaintiff had to challenge the appointment of the ALJ” because Lucia was decided

after Plaintiff had sought review by the Appeals Council. (ECF No. 20 at 18). According to

Plaintiff, she “presented her Appointments Clause challenge at the first opportunity, which was in

her opening brief [to the undersigned] and after SSA acknowledged the faulty appointment of its

ALJs and properly appointed them.”5 (ECF No. 25 at 10). The undersigned finds this argument

unpersuasive.

Long before Lucia, well-settled case law required that Appointments Clause challenges be

made timely. Indeed, in Ryder v. United States, the Supreme Court noted that “one who makes a

timely challenge to the constitutional validity of the appointment of an officer who adjudicates

[her] case is entitled to a decision on the merits . . . . Any other rule would create a disincentive to

raise Appointments Clause challenges with respect to questionable judicial appointments.” 515

U.S. 177, 182-83 (1995). Moreover, “regularly permitting unsuccessful claimants to raise

5 In July 16, 2018, the SSA issued a Ruling in which the Acting Commissioner ratified the

appointment of all SSA ALJs and approved those appointments as her own. That ratification,

however, does not apply retroactively. SSR 19-1p; see also Social Security Ruling 19-1p; Titles

II and XVI: Effect of the Decision in Lucia v. Securities and Exchange Commission (SEC) on

Cases Pending at the Appeals Council, 84 Fed. Reg. 9582-02, 2019 WL 1203026 (Mar. 15, 2019).

[Appointments Clause] challenges for the first time on judicial review would encourage the

practice of ‘sandbagging:’ suggesting or permitting, for strategic reasons, that the [adjudicative

entity] pursue a certain course, and later—if the outcome is unfavorable—claiming that the course

followed was reversible error.” Muhammad v. Berryhill, 381 F. Supp. 3d 462, 469-70 (E.D. Pa.

2019) (quoting Freytag v. Comm’r, 501 U.S. 868, 895 (1991)); see also Gutierrez v. Berryhill,

No. CV-17-129-GF-BMM, 2019 WL 2240602, at *4 (D. Mont. May 24, 2019) (concluding that

failure to raise an Appointments Clause objection during claimant’s administrative proceedings

precludes claimant from raising the issue on judicial review).

Against this backdrop, and having considered the facts of this case and the authorities cited

in the competing Motions, see (ECF Nos. 22 at 17-24 and 25 at 3-11), the undersigned finds that

Plaintiff has forfeited her Appointments Clause challenge by not having argued the issue during

the administrative proceedings.6 Federal courts in Florida routinely have interpreted Lucia to mean

that, in the context of social security proceedings, an Appointments Clause challenge must be

raised before the ALJ’s Decision becomes final at the administrative level.7

See, e.g., Perez v. Berryhill, No. 18-CV-20760, 2019 WL 1405642, at *4 (S.D. Fla. Mar. 28, 2019)

(rejecting as untimely claimant’s Appointments Clause argument raised for the first time before

the district court) (relying on Lucia, 138 S. Ct. at 2055 and Ryder, 515 U.S. at 182-83); Parker v.

Berryhill, No. 18-CIV-14349, 2019 WL 3097511, at *10-11 (S.D. Fla. July 15, 2019) (rejecting

same argument, explaining that “[a]lthough the Eleventh Circuit has yet to decide this issue, the

6 In reaching this conclusion, the undersigned need not determine whether SSA ALJs are “Officers

of the United States” subject to the Appointments Clause.

7 The undersigned notes, however, that two of the decisions from other courts in this district are

currently pending appeal before the Eleventh Circuit. See Perez v. Comm’r of Soc. Sec.,

No. 19-11660 (appeal filed Apr. 29, 2019) and Lopez v. Acting Comm’r of the Soc. Sec. Admin.,

No. 19-11747 (appeal filed May 3, 2019).

courts within this circuit have held that an Appointments Clause challenge, in the context of social

security disability proceedings, is nonjurisdictional and must be raised at the administrative level,”

and noting that Sims8 “does not stand for Plaintiff’s argument that an SSA claimant may raise

issues for the first time in federal court”); Lopez v. Berryhill, No. 18-20626-CV-TORRES,

2019 WL 1429632, at *5-7 (S.D. Fla. Mar. 29, 2019) (explaining that if plaintiff “truly wished to

raise an Appointments Clause challenge, Lucia and Ryder require[d] her to have done so either

during the proceedings before [the] ALJ . . . or to the Appeals’ Council after the ALJ issued his

decision”). See also Jones v. Berryhill, No. 4:18-CV-503-CAS, 2019 WL 2583157, at *7-8 (N.D.

Fla. June 21, 2019) (finding that claimant forfeited her Appointments Clause challenge by failing

to raise it at any point during the administrative process, and commenting that “post-Sims cases

have found that although Sims held that a Plaintiff need not exhaust an issue before the Appeals

Council, the Court ‘specifically left open the question of whether an issue is waived if it is not

raised in the administrative hearing’”); Valle-Roman v. Comm’r of Soc. Sec.,

No. 6:18-CV-1158-ORL-TBS, 2019 WL 1281171, at *2 (M.D. Fla. Mar. 20, 2019) (holding that

plaintiff’s failure to raise Appointments Clause issue at the administrative level is “fatal” to her

claim because “[a]ny challenge to the constitutional validity of the ALJ’s appointment that was

not first raised at the administrative level is rejected as untimely”). “These cases agree with the

‘vast majority of courts that have considered this issue’ and have concluded the Appointments

clause issue is forfeited if not raised in the administrative proceedings.” Jones, 2019 WL 2583157,

at *7 (collecting cases). The undersigned finds these cases persuasive.9

8 Sims v. Apfel, 508 U.S. 103 (2000)

9 In addition, as the Commissioner points out, “in the wake of Lucia, 42 out of 44 district courts

that have decided [this] issue have rejected attacks on the validity of an SSA ALJ’s appointment

where the claimant failed to make the constitutional challenge at the administrative level (although

Alternatively, Plaintiff asks the Court to “excuse” her forfeiture of this argument.

(ECF No. 25 at 10). In the absence of “rare” and “exceptional” circumstances, the undersigned

declines to undertake this discretionary review. Cf. Freytag, 501 U.S. at 879 (concluding that the

case before the court was “one of those rare cases” where the court should exercise its discretion

to hear a challenge to the constitutional authority of the trial judge that was not raised below)). In

Freytag, the court exercised its discretion to review an Appointments Clause challenge that had

not been raised before the Tax Court because the issues raised “important questions” “about the

Constitution’s structural separation of powers.” See Id. at 872. In that case, the court was tasked

with deciding whether the authority that Congress has granted the Chief Judge of the United States

Tax Court to appoint special trial judges violated separation of powers. Id. at 871. The Court

explained that it faced a constitutional challenge that was “neither frivolous nor disingenuous” and

which went directly “to the validity of the Tax Court proceedings,” such that it was a “rare case[]”

for which the court should exercise discretion to hear issues not raised below. Id. at 877-79. The

present case is not such a “rare” or “exceptional” circumstance that warrants discretionary review

of issues not raised below. “Appointments Clause claims, and other structural constitutional

claims, have no special entitlement to review. A party forfeits the right to advance on appeal a

nonjurisdictional claim, structural or otherwise, that he fails to raise at trial.” Id. at 893-94 (Scalia,

J., concurring in part and concurring in judgment).

Having rejected Plaintiff’s Appointments Clause challenge, the undersigned next addresses

Plaintiff’s substantive arguments.

there is a split in two of the districts—the Eastern District of North Carolina and Eastern District

of Pennsylvania).” (ECF No. 22 at 20, n.8, n.9) (collecting cases)

B. The ALJ Properly Evaluated Dr. Shaikh’s Medical Opinion

Between December 2015 and May 2016, Plaintiff was treated at Pompano Adult Primary

Care Center, now known as The Annie L. Weaver Health Center, located in Pompano Beach.10

During this period, Plaintiff was seen three times: twice by Dr. Shawnette Saddler (in December

2015 and May 2016) (R. 343-52, 367-76, 503-12), and once by Dr. Bashir Shaikh (in January

2016) (R. 334-42). Relevant here, at the January 2016 visit, Dr. Shaikh examined Plaintiff and

completed a Physical Assessment Form in which he opined that Plaintiff was severely limited.

(R. 360-61). The ALJ gave “no weight” to Dr. Shaikh’s Physical Assessment Form. (R. 19).

Plaintiff argues that the ALJ erred in assigning “no weight” to Dr. Shaikh’s opinion

because Dr. Shaikh was a “treating source” whose opinion was entitled to great or controlling

weight. See generally (ECF No. 20 at 10-13). For the reasons discussed below, however, the

undersigned finds that the ALJ applied the proper legal standards in evaluating Dr. Shaikh’s

opinion and that substantial evidence supports her Decision.

1. Legal Standards Regarding Medical Opinion Evidence

Under applicable Social Security regulations, an ALJ must consider and evaluate every

medical opinion received in determining whether a claimant is disabled. See 20 C.F.R.

§ 404.1527(c) (“Regardless of its source, we will evaluate every medical opinion we receive.”).

“Medical opinions are statements from physicians and psychologists or other acceptable medical

sources that reflect judgments about the nature and severity of your impairment(s), including your

symptoms, diagnosis and prognosis, what you can still do despite impairment(s), and your physical

or mental restrictions.” 20 C.F.R. § 404.1527(a)(1). In weighing medical opinions, an ALJ is

10 See Annie L. Weaver Health Center, https://www.browardhealth.org/locations/annie-l-weaver-

health-center (last visited Mar. 23, 2020) (confirming name change).

required to consider certain factors, including: (i) whether the claimant has an examining or

treating relationship with the medical source; (ii) the medical source’s area of specialization;

(iii) whether the medical source’s opinion is well-supported; and (iv) whether the opinion is

consistent with the record. See 20 C.F.R. § 404.1527(c). Moreover, an ALJ must generally give

controlling weight to the opinion of a treating source about the nature and severity of a claimant’s

impairments if it “is well-supported by medically acceptable clinical and laboratory diagnostic

techniques and is not inconsistent with the other substantial evidence in [the] case record.”

20 C.F.R. § 404.1527(c)(2).

When an ALJ does not give controlling weight to a treating source’s opinion, the ALJ must

clearly articulate “good cause” for discounting it. Winschel, 631 F.3d at 1179 (citing Phillips, 357

F.3d at 1240-41). “Good cause exists ‘when the: (1) treating physician’s opinion was not bolstered

by the evidence; (2) evidence supported a contrary finding; or (3) treating physician’s opinion was

conclusory or inconsistent with the doctor’s own medical records.’” Winschel, 631 F.3d at 1179

(quoting Phillips, 357 F.3d at 1241). Ultimately, the ALJ can discount even the opinion of a

treating physician, as long as the ALJ articulates her reasons, and failure to do so is reversible

error. Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997) (citation omitted); see also Sryock

v. Heckler, 764 F.2d 834, 835 (11th Cir. 1985) (“The law is clear that . . . the ALJ is free to reject

the opinion of any physician when the evidence supports a contrary conclusion.”) (quoting Oldham

v. Schweiker, 660 F.2d 1078, 1084 (5th Cir. Unit B 1981)). Regardless of what weight is ultimately

given, “the ALJ must state with particularity the weight given to different medical opinions and

the reasons therefor” so that a reviewing court may “determine whether the ultimate decision on

the merits of the claim is rational and supported by substantial evidence.” Winschel, 631 F.3d at

1179 (citation omitted).

2. Dr. Shaikh is not a Treating Source

Plaintiff argues that, although Dr. Shaikh saw Plaintiff only once, Dr. Shaikh works at the

“same clinic” as Plaintiff’s other doctors, and that Dr. Shaikh and “each of those [other doctors at

the clinic] should be [considered] treating sources.” (ECF No. 20 at 12-13). Plaintiff explains

that “while Dr. Shaikh only saw [Plaintiff] one time, he worked in the same clinic where [Plaintiff]

had been seen for her chiropractic care, her orthopedic care, and [primary] care by Dr. Saddler,

i.e., the Path Medical Center-Margate.” (ECF No. 20 at 12). Thus, Plaintiff argues that “Dr.

Shaikh had the benefit of Dr. Saddler’s notes . . . [and] also had access to the other doctors at Path

Medical Center, as noted above.” (ECF No. 20 at 13). Plaintiff further argues that “the records

available to [Dr. Shaikh] from doctors at [Path Medical Center] included orthopedist, Dr. Lorello’s

records,” so that Dr. Shaikh had “considerable information available to him when he made his

assessment of [Plaintiff’s] work abilities on January 21, 2016, and not just the one time visit that

the ALJ refers to.” (ECF No. 20 at 12). Plaintiff’s argument fails for several reasons.

First, Dr. Shaikh practices at Pompano Adult Primary Care Center, not Path

Medical-Margate, where Plaintiff’s chiropractors and orthopedic doctors worked. Even a cursory

review of the record confirms that Path Medical Center-Margate and Pompano Adult Primary Care

are distinct medical facilities, at different locations, and with different doctors. For example, while

Pompano Adult Primary Care Center is in Pompano, Path Medical is a chiropractic and orthopedic

center on State Road 7 in Margate. Plaintiff visited Path Medical on four occasions: December

22, 2014 (Dr. Jillian Duquette) (R. 322-25); January 24, 2015 (Dr. Kieron Parchment) (R. 331);

March 10, 2015 (Dr. Robert Lorello) (R. 326-28); and March 25, 2015 (Dr. Parchment)

(R. 329-30). Consequently, Plaintiff’s argument that Dr. Shaikh had full access to all of Path

Medical Center’s records is factually incorrect.11 Rather, as the ALJ correctly noted, Dr. Shaikh

treated Plaintiff only once (on January 16, 2016) before completing the Physical Assessment Form.

(R. 19). One visit does not qualify Dr. Shaikh as a treating source. See 20 C.F.R. § 404.1527(a)(2)

(a treating source must have an ongoing treatment relationship with claimant); Crawford, 363 F.3d

at 1160 (physician examining claimant once was not treating source)

(citing McSwain v. Bowen, 814 F.2d 617, 619 (11th Cir.1987)); Wimberley v. Berryhill,

No. 17-00558-B, 2019 WL 1418056, at *7 (S.D. Ala. Mar. 29, 2019). Moreover, even considering

Plaintiff’s previous visit to Pompano Adult Primary Care Center in December 2015 (when she saw

Dr. Saddler), this additional visit does not alter the undersigned’s conclusion.

Second, the ALJ properly discounted Dr. Shaikh’s opinion as inconsistent with his

one-time same-day examination of Plaintiff. (R. 19). Plaintiff, who had visited Pompano Adult

Primary Care Center only once before in December 2015, saw Dr. Shaikh in January 2016 for

a“scheduled follow-up” and “general exam.” (R. 334). At this visit, Plaintiff reported to

Dr. Shaikh that her health “was good,” her diet was “balanced,” and that she sometimes exercised.

(R. 334). Notably, Dr. Shaikh found no abnormalities in Plaintiff’s systems (including her

respiratory, cardiovascular, genitourinary, endocrine, immunologic, musculoskeletal,

integumentary, neurologic, and psychiatric systems). (R. 334-35). More specifically, Plaintiff’s

lungs were clear, and her heart rate and rhythm, musculoskeletal range of motion, gait, and

extremity strength were all normal. (R. 337). Only her blood pressure was high, at 154/89.

(R. 336, 340). In addition, Dr. Shaikh’s treatment notes indicated that Plaintiff’s high blood

pressure, MS, hyperlipidemia, and diabetes had “resolved.” (R. 335).

11 The Commissioner similarly misstated Dr. Shaikh’s affiliation with Path Medical Center. See

(ECF No. 22 at 3).

Despite these mostly normal findings, Dr. Shaikh completed a Physical Assessment Form,

in which he opined that Plaintiff was severely limited. (R. 360-61). In the Physical Assessment

Form, Dr. Shaikh noted Plaintiff’s previous diagnoses of MS, diabetes mellitus, high blood

pressure, and high lipids. (R. 360). Dr. Shaikh opined that Plaintiff’s symptoms would frequently

interfere with her attention and concentration to perform simple work-related tasks, and that her

medications made her drowsy. (R. 360). He further opined that in an 8-hour day, Plaintiff could

only: (i) sit for 4 hours; (ii) walk for 2 blocks without significant pain; (iii) stand/walk for 30

minutes; and (iv) never lift or carry even less than 10 pounds. (R. 360). Dr. Shaikh also opined

that Plaintiff would need 30 minute-breaks every 3-4 hours, and could use her hands, fingers and

arms only 50% of the time to grasp or twist objects, reach, and for fine manipulation. (R. 360).

Lastly, Dr. Shaikh concluded that Plaintiff would be absent from work more than four times each

month. (R. 361).

As the ALJ correctly noted, Dr. Shaikh’s examination findings were inconsistent with “the

severity of limitations that he opined” in the Physical Assessment Form. (R. 19). The ALJ noted:

[Dr. Shaikh’s] physical examination of [Plaintiff] . . . was grossly normal.

[Plaintiff] did not appear to be in acute distress. Examination of her chest revealed

regular rate and rhythm with good pulses, normal peripheral perfusion, and no

edema. Examination of [Plaintiff’s] musculoskeletal system showed that [Plaintiff]

had normal range of motion and normal strength without tenderness, swelling, or

deformity. Her gait was even normal. Neurological examination revelated that

[Plaintiff] was alert and oriented with intact sensation, motor function, cranial

nerves, and deep tendon reflexes. [Plaintiff’s] A1C and lipids were even normal.

Significantly, one of the only abnormalities noted at this appointment was elevated

systolic blood pressure.

(R. 19-20).

Against this backdrop, the undersigned finds that the ALJ clearly articulated her reasons

for discounting Dr. Shaikh’s opinion and that substantial evidence supports her Decision.

C. The ALJ Satisfied Her Duty to Develop a Full and Fair Record

Next, Plaintiff argues that the ALJ erred in failing to “fully and fairly” develop the record

by failing to obtain additional medical records from: (i) Broward Health; (ii) her alleged primary

care provider Dr. Andy Weaver; (iii) Path Medical Center; (iv) hospital records confirming her

May 2015 diagnoses of MS; and (v) an unidentified neurologist purportedly treating Plaintiff’s

MS. (ECF No. 20 at 14-15).

Because a hearing before an ALJ is not an adversary proceeding, the ALJ has a basic

obligation to develop a full and fair record. Cowart v. Schweiker, 662 F.2d 731, 735

(11th Cir. 1981). This obligation exists even when a claimant is represented by counsel and

requires the ALJ to “scrupulously and conscientiously probe into, inquire of, and explore for all

the relevant facts.” Id. (citations and quotations omitted); Jones v. Astrue, 863 F. Supp. 2d 1142,

1154 (S.D. Ala. 2012) (“[T]he ALJ must probe into all relevant facts, even where a claimant is

represented by counsel.”) (citing Cowart, 662 F.2d at 735). Further, the ALJ must be “especially

diligent in ensuring that favorable as well as unfavorable facts and circumstances are elicited.”

Cowart, 662 F.2d at 735; see also Fontanez v. Barnhart, 195 F. Supp. 2d 1333, 1357

(M.D. Fla. 2002) (remanding the case where the ALJ failed to determine the significance of

claimant’s limited test scores). Nonetheless, a claimant must show prejudice before a court can

find that her due process rights have been violated to such a degree that the case must be remanded

to the Commissioner for further development of the record. Brown v. Shalala, 44 F.3d 931, 935

(11th Cir. 1995) (citations omitted).

Ultimately, a claimant bears the burden of proving that she is disabled and is responsible

for producing evidence in support of her claim. Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th

Cir. 2003); see also 20 C.F.R. § 416.912(a)(1) (a claimant must furnish medical and other evidence

that the Commissioner can use to reach conclusions about her medical impairment(s)); 20 C.F.R.

§ 416.912(a)(2) (a claimant must provide medical evidence showing that she has an impairment(s)

and how severe they are). In evaluating whether a case should be remanded for an ALJ’s purported

failure to fully develop the record, courts consider whether there are evidentiary gaps in the record

that result in unfairness or “clear prejudice” to the claimant. Brown, 44 F.3d at 935; see also

Graham v. Apfel, 129 F.3d 1420, 1423 (11th Cir. 1997). Such prejudice is absent here.

1. The ALJ Did not Err in Failing to Subpoena Records from Broward Health

Plaintiff argues that the ALJ’s failure to subpoena additional medical records from

Broward Health was error. (ECF No. 20 at 13-14). On December 20, 2017, Plaintiff’s counsel

sent a letter requesting that the ALJ subpoena medical records from Broward Health from January

to December 2015, and from January 2016 to December 2017. (R. 280-81). In the letter, Plaintiff

acknowledged that she did not know what these records contained, but “believ[ed] that these

records [were] necessary for a complete disability determination.” (R. 280). Notably, the letter

did not request that the ALJ obtain records from any other provider.

At the January 2018 administrative hearing, the ALJ and counsel discussed Plaintiff’s

request to subpoena records from Broward Health. (R. 83-84, 86). Counsel explained that these

records related to “two or three nights [at the hospital] for breathing trouble.” (R. 83, 86). Counsel

added that Plaintiff’s primary care doctor was Andy Weaver, but made no request for his records.

(R. 83). Rather, as in the letter, Plaintiff requested that the ALJ subpoena additional records only

from Broward Health. (R. 84).

The undersigned is unpersuaded by Plaintiff’s argument that the ALJ erred in not

subpoenaing additional records from Broward Health. First, a remand is appropriate only when

the ALJ’s failure to develop the record results in prejudice to the Plaintiff. Graham, 129 F.3d at

1423 (remand for failure to develop record requires showing of prejudice); Mitchell v. Astrue,

No. 1:09-CV-02026-AJB, 2010 WL 3749201, at *9-10 (N.D. Ga. Sept. 20, 2010) (claimant must

show prejudice in ALJ’s failure to subpoena medical records)

(citing Robinson v. Astrue, No. 09-12472, 2010 WL 582617, *2 (11th Cir. Feb.19, 2010);

Washington v. Astrue, 558 F. Supp. 2d 1287, 1298 (N.D. Ga. 2008) (same). Here, Plaintiff

concededly did “not know what medical conclusions were reached in these records.” (R. 280).

Thus, Plaintiff does not argue, nor can she show, that anything in those records would have affected

the ALJ’s decision. Rather, the requested subpoena was a vague and general request for two years’

worth of records, which may not even have existed. Indeed, on September 27, 2017, Broward

Health had advised Plaintiff’s counsel that it had “no dates of service for dates requested.”

(R. 281).

Second, even assuming that Plaintiff may have been hospitalized for a few days due to

breathing problems, such evidence would simply be cumulative of other instances in the record

where Plaintiff reported difficulty breathing. See (R. 326) (reporting shortness of breath to

Dr. Lorello in March 2015); (R. 298) (reporting shortness of breath during a hospital stay in June

2015); (R. 461, 468) (reporting chest pain and shortness of breath during hospital stay in January

2017). Moreover, Plaintiff has not explained how the purportedly missing evidence affected the

ALJ’s disability determination or her ability to make an informed decision. See Rivera v. Comm’r

of Soc. Sec. Admin., No. 6:12-CV-232-ORL-GJK, 2013 WL 557214, at *7 (M.D. Fla. Feb. 14,

2013) (to establish prejudice, the claimant must explain how the missing medical evidence

prevented the ALJ from making an informed decision or affected the ALJ’s overall disability

determination). Although Plaintiff speculates that the absence of Broward Health’s records “raise

questions about whether the ALJ fulfilled her duty to fully and fairly develop the record,”

Plaintiff’s claims are mere speculation, and “speculation about the contents of those records does

not justify a remand.” Echevarria v. Colvin, No. 8:12-CV-1801-T-TGW, 2013 WL 4518212, at

*5 (M.D. Fla. Aug. 23, 2013).

Lastly, the ALJ’s basic obligation to develop a full and fair record requires only that she

develop a medical record for the 12 months preceding the filing of the claimant’s application for

benefits. 20 C.F.R. §§ 404.1512(d), 416.912(d) (“Before we make a determination that you are

not disabled, we will develop your complete medical history for at least the 12 months preceding

the month in which you file your application. . . .”). Here, Plaintiff filed for benefits on January

12, 2016, so the ALJ’s duty to develop the record goes back to January 2015. Thus, the ALJ had

no duty to obtain records from January 2016 to December 2017, more than a year after Plaintiff

applied for benefits. See Ellison, 355 F.3d at 1276 (ALJ not bound to develop medical record for

the two years after claimant applied for benefits); Smith v. Comm’r of Soc. Sec. Admin.,

501 F. App’x 875, 878-79 (11th Cir. 2012) (ALJ was only obligated to develop medical record for

the twelve months preceding the filing of claimant’s application for benefits).

2. Plaintiff’s Arguments Regarding Other Missing Medical Records Lack Merit

Plaintiff summarily argues that the ALJ erred by not obtaining additional unspecified

records from Plaintiff’s primary care provider “Andy Weaver,” Path Medical Center, and an

unidentified neurologist that Plaintiff claims to have visited. (ECF No. 20 at 14-15). Plaintiff

also suggests that the ALJ should have obtained additional hospital records confirming her May

2015 MS diagnosis. Id. at 14.

Arguments made in such a perfunctory manner are generally deemed waived.

N.L.R.B. v. McClain of Georgia, Inc., 138 F.3d 1418, 1422 (11th Cir. 1998) (citation omitted).

Moreover, Plaintiff’s argument also fails on the merits. For example, nothing in the record,

including Plaintiff’s testimony at the hearing, indicates that Plaintiff’s primary care provider was

a doctor named Andy Weaver. Rather, the record reflects that Plaintiff saw various doctors at

Pompano Adult Primary Care Center and that Pompano Adult Primary Care later changed its name

to The Annie L. Weaver Health Center. See supra note 9. The record contains treatment notes

from this clinic both before and after the name change. See (R. 334-42, 343-52, 367-76, 503-12).

Thus, Plaintiff’s argument regarding purportedly missing records from an “Andy Weaver,”

without further explanation, is speculative.

Next, Plaintiff claims that the ALJ should have obtained additional records from Path

Medical Center regarding Plaintiff’s complaints of headaches, vision loss, and memory problems,

the initial May 2015 hospital records of her MS diagnosis, and records from an unidentified

neurologist that Plaintiff told Dr. Saddler she saw once. (ECF No. 20 at 14); see also (R. 503)

(Plaintiff reported seeing a neurologist who prescribed medication); (R. 518) (Plaintiff reported to

nurse that she was prescribed betaseron injections for her MS). These arguments, in addition to

being cursory, are also without merit. First, it is Plaintiff’s responsibility, not the ALJ’s, to produce

evidence to support her claim. See Ellison, 355 F.3d at 1276. Second, the evidence to which

Plaintiff refers, if it exists, would be cumulative of evidence already in the record and considered

by the ALJ, such as the results of Plaintiff’s January 2015 MRI and her diagnosis of MS, neither

of which are contested. See (R. 17-18, 293-94). Lastly and importantly, Plaintiff fails to show

that she was prejudiced by the absence of these records or explain how these might have affected

the ALJ’s decision. See Rivera, 2013 WL 557214, at *7.

D. The ALJ Properly Determined that Claimant Did Not Meet or Equal a Listing

At Step 3 of the sequential evaluation, the ALJ concluded that Plaintiff did not have an

impairment or combination of impairments that meets or equals any one of the Listings. (R. 14).

In making this determination, the ALJ specifically discussed Listing 4.02 (chronic heart failure),

Listing 11.09 (MS), and several Listings related to diabetes, including Listing 1.00 (gangrene

and/or amputation of an extremity), Listing 2.00 (diabetic neuropathy), Listing 4.00 (coronary

artery disease), and Listing 11.00 (peripheral and sensorial neuropathies). As well, the ALJ

discussed Plaintiff’s obesity. (R. 15). Nonetheless, Plaintiff alleges error in that the “[ALJ] does

not state that she ever considered the listing found at 4.04 for ischemic heart disease.”

(ECF No. 20 at 15). Plaintiff’s argument is without merit.

First, an ALJ is not required to discuss a particular Listing by name. See Prince v. Comm’r

of Soc. Sec. Admin., 551 F. App’x 967, 971 (11th Cir. 2014) (ALJ’s finding regarding Listing may

be implicit); Hutchison v. Bowen, 787 F.2d 1461, 1463 (11th Cir. 1986) (ALJ’s implicit finding

that claimant did not meet a Listing was clear where ALJ considered relevant law and evidence

ALJ). Second, an ALJ does not have to “mechanically recite the evidence leading to her

determination.” Hutchison, 787 F.2d at 1463. Third, it is Plaintiff who bears the burden of

demonstrating that her impairment meets or equals a listed impairment. Barron v. Sullivan, 924

F.2d 227, 229 (11th Cir. 1991). Moreover, to meet a Listing, a claimant must have a diagnosis

included in the Listings and must provide medical reports documenting that the conditions meet

the specific criteria of the Listings and the duration requirement. 20 C.F.R. § 416.925(c)(3);

Wilson v. Barnhart, 284 F.3d 1219, 1224 (11th Cir. 2002). Plaintiff has not done so here. An

impairment that meets only some of the Listing requirements, no matter how severe, does not

qualify. Prince, 551 F. App’x at 969; Sullivan v. Zebley, 493 U.S. 521, 530 (1990).

In relevant part, Listing 4.04 provides:

Ischemic heart disease, with symptoms due to myocardial ischemia, as described

in 4.00E3-4.00E7, while on a regimen of prescribed treatment (see 4.00B3 if there

is no regimen of prescribed treatment), with one of the following:

C. Coronary artery disease, demonstrated by angiography (obtained independent

of Social Security disability evaluation) or other appropriate medically acceptable

imaging, and in the absence of a timely exercise tolerance test or a timely normal

drug-induced stress test, an MC, preferably one experienced in the care of patients

with cardiovascular disease, has concluded that performance of exercise tolerance

testing would present a significant risk to the individual, with both 1 and 2:

1. Angiographic evidence showing:

a. 50 percent or more narrowing of a nonbypassed left main coronary artery;

or

b. 70 percent or more narrowing of another nonbypassed coronary artery;

or

c. 50 percent or more narrowing involving a long (greater than 1 cm)

segment of a nonbypassed coronary artery; or

d. 50 percent or more narrowing of at least two nonbypassed coronary

arteries; or

e. 70 percent or more narrowing of a bypass graft vessel; and

2. Resulting in very serious limitations in the ability to independently initiate,

sustain, or complete activities of daily living.

20 C.F.R. Pt 404, Subpt. P, Appendix 1 § 4.04.

Plaintiff has failed to establish that she met or equaled the specific requirements of Listing

4.04. For example, Plaintiff failed to show that her impairments satisfied the introductory

paragraph of Listing 4.04, which required symptoms due to myocardial ischemia “while on a

regimen of prescribed treatment.” As the ALJ found, however, Plaintiff’s “myocardial infarction

stabilized quickly upon admission to the hospital.” (R. 18); see (R. 462) (noting Plaintiff’s

NSTEMI (heart attack) was “stable, with no pain currently”). Indeed, after a successful

catherization and stent placement, Plaintiff was discharged from the hospital as stable. (R. 438,

440, 442). In addition, Plaintiff failed to provide evidence of an angiography or a timely exercise

tolerance test or a statement from a medical source explaining that such an exercise test could not

be done without posing a risk to Plaintiff. Furthermore, Plaintiff did not produce angiographic

evidence showing the degree of arterial narrowing required in 4.04C(1). Lastly, the ALJ’s

Decision reflects that the ALJ fully considered the existing evidence regarding Plaintiff’s heart

condition in determining whether Plaintiff met any of the Listings. See, e.g., (R. 14-15, 16-17)

(ALJ’s fulsome discussion of Plaintiff’s cardiac history). Plaintiff’s diagnosis of a heart attack,

without more, does not meet the requirements of Listing 4.04.

E. The ALJ Properly Evaluated Plaintiff’s Testimony

Plaintiff argues that the ALJ erred in discounting Plaintiff’s statements about the intensity

and limiting effects of her symptoms as “not entirely consistent with the medical evidence and

other evidence in the record.” (R. 16); (ECF No. 20 at 16-17).

In considering a claimant’s symptoms, the ALJ must follow a two-step process: “Step one

is to determine whether the individual has a medically determinable impairment that could

reasonably be expected to produce the alleged symptoms.” Contreras-Zambrano v. Soc. Sec.

Admin., Comm’r, 724 F. App’x 700, 703 (11th Cir. 2018) (citing SSR 16-3p, 82 Fed. Reg.

49462-03, 49463-65 (Oct. 25, 2017)). “Step two is to evaluate the intensity and persistence of an

individual’s symptoms, such as pain, and determine the extent to which an individual’s symptoms

limit her ability to perform work-related activities.” Id. (citing SSR 16-3p,

82 Fed. Reg. at 49464-66). An ALJ considers “whether there are any inconsistencies in the

evidence and the extent to which there are any conflicts between [a claimant’s] statements and the

rest of the evidence, including [claimant’s] history, the signs and laboratory findings, and

statements by [the claimant’s] medical sources or other persons about how [her] symptoms affect

[her].” 20 C.F.R. § 416.929(c)(4).

Here, the ALJ concluded that Plaintiff’s medically determinable impairments could

reasonably be expected to cause her alleged symptoms, but that Plaintiff’s statements concerning

the intensity, persistence, and limiting effects of her symptoms were “not entirely consistent with

the medical evidence and other evidence in the record.” (R. 16). The ALJ articulated more than

a dozen reasons why she discounted Plaintiff’s statements. The ALJ stated:

[1] . . . Notably the claimant’s primary care physician noted that the claimant’s

hypertension, multiple sclerosis, hyperlipidemia, and diabetes mellitus were all

resolved, suggesting symptom control with medications.

[2] Additionally, examinations of her heart have shown regular rate and rhythm.

Examination of the claimant generally revealed no edema. The claimant’s

myocardial infarction stabilized quickly upon admission to the hospital.

[3] The claimant’s hypertension was diagnosed as benign essential hypertension.

[4] The claimant’s lipids have been within normal limits at times.

[5] The claimant’s A1C levels and glucose have also been grossly normal on

occasion. Her diabetes was even noted to be stable during her hospitalization in

early 2017; indeed, the claimant even testified that her diabetes mellitus is stable

with medication.

[6] Although a month prior to the alleged onset date, range of motion testing at the

claimant’s June 2015 consultative examination was grossly normal with some

limitation to the inversion and eversion of her right ankle; musculoskeletal

examinations since the claimant’s alleged onset date have shown grossly normal

range of motion and strength without tenderness, swelling or deformity. She has

had normal examination of her back with full range of motion. While the claimant

alleged that she has difficulty walking and needs to use a cane, physical

examinations of the claimant have generally indicated that she had normal gait and

steady ambulation. The claimant had full range of motion and sensation in her left

leg.

[7] Despite her allegations of blurred vision, the claimant had grossly normal eye

examinations.

[8] Her speech has also been normal.

[9] The claimant has had normal neurological examinations with intact sensation,

motor function, and deep tendon reflexes.

[10] The claimant has also been alert and oriented with normal mental status

examinations. There are no noted or observed impairments to concentration or

memory in the record.

(R. 18-19) (numbers added and internal record citations omitted).

In addition to the mostly normal examination findings quoted above, the ALJ noted “other

inconsistencies” between claimant’s allegations and the record. (R. 19). The ALJ added:

[W]hile the claimant alleges that she has been disabled since July 2, 2015, she

described her overall health status as good in late 2015 and early 2016. The

claimant was counseled on taking her medication as prescribed; it was also noted

that the claimant’s lack of insurance caused her to see a doctor infrequently and

intermittently use medications for management of her hypertension and diabetes

mellitus. However, the claimant was also counseled on healthy eating, daily

activity, and exercise for management of her diabetes mellitus. She reported that

she sometimes exercises, which is inconsistent with the degree of debility the

claimant alleged.

(R. 19) (internal record citations omitted).

In the Motion, Plaintiff challenges only the first of the many reasons the ALJ articulated

for discounting Plaintiff’s statements, i.e., that Plaintiff’s impairments were all “resolved,

suggesting symptom control with medication.” (ECF No. 20 at 16-17). Plaintiff argues that the

“ALJ’s use of this as an inconsistency to reject [Plaintiff’s] severity of symptoms must fail.” Id.

at 17. Unfortunately for Plaintiff, that leaves more than ten other valid reasons for why the ALJ

discounted Plaintiff’s statements.

Against this backdrop, the undersigned finds that the ALJ properly evaluated Plaintiff’s

credibility. See, e.g., Vason v. Astrue, No. 2:09-CV-912-TFM, 2010 WL 2629444, at *5 (M.D.

Ala. June 30, 2010) (concluding that ALJ did not err in discounting claimant’s testimony where

conflicts existed within her testimony and between her testimony and the record). In addition,

credibility determinations are the province of the ALJ, and a clearly articulated credibility finding

with substantial supporting record evidence will not be disturbed. Moore v. Barnhart, 405 F.3d

1208, 1212 (11th Cir. 2005); Foote v. Chater, 67 F.3d 1553, 1562 (11th Cir. 1995); May v. Comm’r

of Soc. Sec. Admin., 226 F. App’x 955, 958 (11th Cir. 2007) (noting that the ALJ provided

sufficiently explicit and adequate to reasons to partially discredit claimant);

see also, Pettaway vy. Astrue, 376 F. App’x 889, 891 (11th Cir. 2010) (finding no reversible error

where ALJ provided specific reasons for discrediting claimant’s testimony); Dyer v. Barnhart, 395

F.3d 1206, 1212 (1th Cir 2005) (finding reversible error where court disturbed an ALJ’s

adequately explained determination regarding claimant’s subjective complaints).

VI. CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED that:

1. Plaintiff's Motion for Summary Judgment (ECF No. 20) is DENIED, Defendant’

Motion for Summary Judgment (ECF No. 22) is GRANTED, and the ALJ’s Decision is

AFFIRMED.

2. The Clerk is directed to enter judgment in favor of Defendant, to terminate all

pending motions, and to CLOSE the case.

DONE AND ORDERED at Chambers in Fort Lauderdale, Florida on March 24, 2020.

Clee L Vee

ALICIA O. VALLE ee

UNITED STATES MAGISTRATE JUDGE

Copies furnished to:

All Counsel of Record

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