# Moye v. Commissioner of Social Security

> District Court, S.D. Florida · March 24, 2020

URL: https://www.frixlaw.com/law-library/cases/10117526

## Case

- **Court:** District Court, S.D. Florida
- **Decided:** March 24, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10117526

## How later opinions describe it (automated extraction)

- concluding that failure to raise an Appointments Clause objection during claimant’s administrative proceedings precludes claimant from raising the issue on judicial review
- finding no reversible error where ALJ provided specific reasons for discrediting claimant’s testimony

## Opinion text

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

29

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10117526. Public record. Not legal advice.