Corrente v. Berryhill

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 19-61482-CIV-ALTMAN/Hunt

CYNTHIA CORRENTE,

Plaintiff,

v.

NANCY A. BERRYHILL,

Acting Commissioner of the Social Security

Administration,

Defendant.

____________________________/

ORDER

Before the Hon. Roy K. Altman:

The Plaintiff, Cynthia Corrente, appeals the Defendant’s denial of her application for

Social Security Disability Benefits. In a nutshell, she says that the Administrative Law Judge

(“ALJ”) erred by failing to evaluate her fibromyalgia under the correct legal standard.

The parties have filed cross-motions for summary judgment—see Plaintiff’s Motion for

Summary Judgment (“Pl. MSJ”) [ECF No. 23]; Defendant’s Motion for Summary Judgment

(“Def. MSJ”) [ECF No. 26]—which this Court referred to United States Magistrate Judge Patrick

M. Hunt for a Report and Recommendation (the “Report”). See Clerk’s Notice of Assignment

[ECF No. 2]. In his Report [ECF No. 30], the Magistrate Judge recommended that the Plaintiff’s

Motion be denied and that the Defendant’s Motion be granted. See Report at 1. The Plaintiff timely

objected. See Objections [ECF No. 31]. The Court has conducted a de novo review of those

portions of the Report to which the Plaintiff has objected1 and, for the following reasons, now

1 See FED. R. CIV. P. 72(b)(3) (“Resolving Objections. The district judge must determine de novo

any part of the magistrate judge’s disposition that has been properly objected to. The district judge

may accept, reject, or modify the recommended disposition; receive further evidence; or return the

ADOPTS the Report in full.

Background

Corrente sought Disability Insurance Benefits under the Social Security Act, 42 U.S.C. §

401, et seq. See generally Complaint [ECF No. 1]. After the Defendant2 denied her claim, she

appealed, first, to an ALJ—who affirmed the Defendant’s decision—and then to the Appeals

Council, which denied review of her case. See id. at 1. On June 14, 2019, Corrente filed her

Complaint, in which she asks this Court to overturn the ALJ’s decision. See generally id.

The ALJ concluded that Corrente suffered from both a degenerative disc disease, which

the ALJ characterized as “a severe impairment,” and depression, which the ALJ determined was

“not severe.” Administrative Law Judge Decision (“ALJ Decision”) [ECF No. 14] at 16–17. The

parties quarrel over whether, in fact, the ALJ found that Corrente suffers from fibromyalgia. See

Report at 3. Either way, the ALJ determined that Corrente’s impairments—taken together—do not

“meet or medically equal” the severity of one of the impairments set out in the Listing of

Impairments in appendix 1, subpart P of 20 C.F.R. Part 404. See ALJ Decision at 18–19. The ALJ

also held that Corrente had the “residual functional capacity” (“RFC”) to “lift and/or carry 20

pounds occasionally and 10 pounds frequently; sit for 6 hours in an 8-hour workday; and stand

/walk for 6 hours in an 8-hour workday, with a sit stand option every 2 hours.” Id. at 19. Finally,

the ALJ concluded that “the claimant is capable of performing past relevant work as a credit

manager and accounting clerk”—and that, therefore, “the claimant is not disabled[.]” Id. at 22.

matter to the magistrate judge with instructions.”). The Court has also reviewed the unobjected-to

portions of the Report for clear error and, finding none, adopts those portions as well. See Thomas

v. Arn, 474 U.S. 140, 150 (1985) (“It does not appear that Congress intended to require district

court review of a magistrate [judge]’s factual or legal conclusions, under a de novo or any other

standard, when neither party objects to those findings.”).

2 The Defendant is the Commissioner of the Social Security Administration.

Standard of Review

The Court’s review of an ALJ’s decision is “limited to an inquiry into whether there is

substantial evidence to support the findings of the [ALJ], and whether the correct legal standards

were applied.” Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002). This determination—

whether the ALJ applied the correct legal standard—is a legal one subject to de novo review.

Graham v. Bowen, 90 F.2d 1572, 1575 (11th Cir. 1986) (citation omitted). “Substantial evidence

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

adequate to support a conclusion.” Lewis v. Callahan, 12 F.3d 1436, 1439 (11th Cir. 1997). The

Court may not, however, “reweigh the evidence, or substitute [its] judgment” for the ALJ’s—even

if the “evidence preponderates against the [ALJ’s] decision.” Bloodsworth v. Heckler, 703 F.2d

1233, 1239 (11th Cir. 1983) (citation omitted).

The Law

Because Corrente’s objections (primarily) concern the application of Social Security

Ruling 12-2p (“SSR 12-2p”), this Court begins with a short overview of how that provision

operates.

SSR 12-2p provides “guidance on how the SSA [Social Security Administration] develops

evidence that a person has a medically determinable impairment [referred to in SSR 12-2p as an

MDI] of fibromyalgia [or FM] and how it evaluates fibromyalgia in disability claims.” Sorter v.

Comm’r of Soc. Sec., 773 F. App’x 1070, 1073 (11th Cir. 2019). SSR 12-2p “sets out a two-step

process for evaluating symptoms, which involves (1) determining whether medical signs and

findings show that the person has a medically determinable impairment, and (2) once a medically

determinable impairment is established, evaluating the ‘intensity and persistence of the person’s

pain or any other symptoms’ and determining ‘the extent to which the symptoms limit the person’s

capacity for work.’” Id. (quoting SSR 12-2p, 77 Fed. Reg. 43640, 43643 (July 25, 2012)

(describing Section IV)). And, “in order to decide whether a person is disabled based on a

medically determinable impairment of fibromyalgia, the SSA considers the regular five-step

sequential evaluation process used for any adult claim for disability benefits.” Id.

In the first step—which asks whether a claimant has fibromyalgia—SSR 12-2p requires

the ALJ to “find that a person has an MDI of FM if [a] physician diagnosed FM and provides the

evidence we describe in section II.A. or section II.B., and the physician’s diagnosis is not

inconsistent with the other evidence in the person’s case record.” SSR 12-2p, 77 Fed. Reg. at 43641

(Section II) (emphasis added). Sections II.A and II.B list different criteria for diagnosing

fibromyalgia: specifically, the 1990 American College of Rheumatology (“ACR”) Criteria for the

Classification of Fibromyalgia and the 2010 ACR Preliminary Diagnostic Criteria. Id.3

Under SSR 12-2p, “[a]s in all claims for disability benefits, we need objective medical

evidence to establish the presence of an MDI. When a person alleges FM, longitudinal records

reflecting ongoing medical evaluation and treatment from acceptable medical sources are

especially helpful in establishing both the existence and severity of the impairment.” Id. at 43642–

43 (Section III.A). But SSR 12-2p also instructs ALJs that, “[i]n addition to obtaining evidence

from a physician, we may request evidence from other acceptable medical sources, such as

psychologists, both to determine whether the person has another MDI(s) and to evaluate the

3 The first set of criteria (1990) requires that the claimant demonstrate: “(1) a history of widespread

pain”; “(2) at least 11 positive tender points on physical examination”; and “(3) evidence that other

disorders which could cause the symptoms or signs were excluded.” SSR 12-2p, 77 Fed. Reg. at

43641–42 (Section II.A.1–3). The second set of criteria (2010) requires that the claimant show:

“(1) a history of widespread pain”; “(2) repeated manifestations of six or more fibromyalgia

symptoms, signs, or co-occurring conditions”; and “(3) evidence that other disorders that could

cause these repeated manifestations of symptoms, signs, or co-occurring conditions were

excluded.” Id. at 43642 (Section II.B.1–3).

severity and functional effects of FM or any of the person’s other impairments. We also may

consider evidence from medical sources who are not ‘acceptable medical sources’ to evaluate the

severity and functional effects of the impairment(s).” Id. at 43643 (Section III.B.1). ALJs may also

consider evidence from “nonmedical sources,” including (1) “[n]eighbors, friends, relatives, and

clergy”; (2) “[p]ast employers, rehabilitation counselors, and teachers”; and (3) “[s]tatements from

SSA personnel who interviewed the person.” Id. (Section III.B.2).

SSR 12-2p’s second step assesses the intensity of a claimant’s fibromyalgia. Id. (Section

IV.B). In applying this second step, ALJs should “evaluate the intensity and persistence of the

person’s pain or any other symptoms and determine the extent to which the symptoms limit the

person’s capacity for work.” Id. “If objective medical evidence does not substantiate the person’s

statements about the intensity, persistence, and functionally limiting effects of symptoms, we

consider all of the evidence in the case record, including the person’s daily activities, medications

or other treatments the person uses, or has used, to alleviate symptoms; the nature and frequency

of the person’s attempts to obtain medical treatment for symptoms; and statements by other people

about the person’s symptoms.” Id.

After determining both that a claimant has fibromyalgia and that the fibromyalgia is of a

certain (debilitating) intensity, ALJs “will consider [the claimant’s fibromyalgia] in the sequential

evaluation process to determine whether the person is disabled. As we explain in section VI. below,

we consider the severity of the impairment, whether the impairment medically equals the

requirements of a listed impairment, and whether the impairment prevents the person from doing

his or her past relevant work or other work that exists in significant numbers in the national

economy.” Id. (Section V).

“As with any adult claim for disability benefits,” ALJs use a five-step sequential evaluation

process “to determine whether an adult with an MDI of FM is disabled.” Id. (Section VI). First,

ALJs should consider whether the claimant is doing “substantial gainful activity”; if the claimant

is, then “he or she is not disabled.” Id. (Section VI.A). Second, ALJs should determine “whether

the person has a ‘severe’ MDI.” Id. (Section VI.B). If not, they are not disabled. See Tuggerson-

Brown v. Comm’r of Soc. Sec., 572 F. App’x 949, 950–51 (11th Cir. 2014) (“We have described

step two as a ‘filter’ requiring the denial of any disability claim where no severe impairment or

combination of impairments is present. . . . To proceed to step three of the evaluation process, an

ALJ need only conclude that an applicant had ‘at least one’ severe impairment.”). Third, ALJs

must decide “whether the person’s impairment(s) meets or medically equals the criteria of any of

the listings in the Listing of Impairments in appendix 1, subpart P of 20 C.F.R. part 404.” Id.

(Section VI.C). “[I]f the impairment meets or equals a listed impairment, disability

is automatically established.” Wilbon v. Comm’r of Soc. Sec., 181 F. App’x 826, 827 (11th Cir.

2006).

But “FM is not a listed impairment.” SSR 12-2p, 77 Fed. Reg. at 43644. As a result, when

presented with a claim of fibromyalgia, the ALJ must calculate the claimant’s RFC. Id. (Section

VI.D). An ALJ bases an RFC computation “on all relevant evidence in the case record. We

consider the effects of all of the person’s medically determinable impairments, including

impairments that are ‘not severe.’ For a person with FM, we will consider a longitudinal record

whenever possible because the symptoms of FM can wax and wane so that a person may have ‘bad

days and good days.’” Id. (Section VI.D). With the RFC in hand, “[a]t steps 4 and 5, we use our

RFC assessment to determine whether the person is capable of doing any past relevant work (step

4) or any other work that exists in significant numbers in the national economy (step 5).” Id.

(Section VI.E). The burden of proof remains on the claimant until Step Five, where it “shifts to the

Commissioner to show significant numbers of jobs exist in the national economy that the claimant

can perform.” Ostborg v. Comm’r of Soc. Sec., 610 F. App’x 907, 915 (11th Cir. 2015).

The Facts

As relevant here, the ALJ described Corrente’s fibromyalgia as follows:

I find that the claimant’s impairment of fibromyalgia is not severe. An impairment

or combination of impairments is found ‘not severe’ when medical evidence

establishes only a slight abnormality or a combination of slight abnormalities,

which would have no more than a minimal effect on an individual’s ability to work

even if the individual’s age, education, or work experience were specifically

considered (i.e., the person’s impairment(s) has no more than a minimal effect on

his or her physical or mental ability(ies) to perform basic work activities). See

Social Security Ruling (SSR) 96-3p.

A review of the medical evidence indicates that the claimant has a history of

fibromyalgia, which was treated by a rheumatologist, Aviva Hopkins, M.D. (Exs.

5F, 8F, and 18F). However, the objective medical evidence does not support the

pain or symptoms alleged by the claimant. In fact, the claimant reported to Dr.

Hopkins on November 2, 2015 that she was planning her daughter’s wedding and

she walked her dog for exercise (Ex. F5/25-26). A musculoskeletal examination on

the same day indicated that the claimant had tenderness to palpation over the left

greater trochanter, entire back, occiput, trapezius, and left chest wall, but no joint

swelling was seen (Ex. 5F/26). Subsequent physical examinations indicated the

same clinical findings (Exs. 5F/29; 8F/29, 31, and 34). However, the claimant

reported to Dr. Hopkins on February 22, 2016 that she was swimming three days a

week for about fifteen minutes, and she indicated on August 22, 2016 that she was

exercising in the pool about two times per week (Exs. 5F/28 and 8F/28). Dr.

Hopkins encouraged daily exercise for the claimant (Ex. 8F/29). Subsequently, the

claimant indicated on January 9, 2017 that her pain had been better and she was

doing yoga a few times a week (Ex. 8F/32). Dr. Hopkins encouraged a more

rigorous exercise regimen than yoga (Ex. 8F/32). Finally, the claimant indicated on

July 10, 2017 that she was still doing yoga and exercising in the pool (Ex. 8F/33).

Based on the foregoing, I find that there is no persuasive evidence in the record to

establish that fibromyalgia or any symptoms arising thereof continuously cause

significant limitations. Thus, while the claimant has been diagnosed with

fibromyalgia in the past, I find that it does not affect the claimant’s ability to

perform basic work-related functions, and is therefore considered non-severe.

ALJ Decision at 16–17.

The Report and Corrente’s Objections

In her motion for summary judgment, Corrente made three arguments. First, she said that

the ALJ “committed legal error by failing to evaluate fibromyalgia under SSR 12-2p” and by

“inaccurately conclude[ing] that Corrente’s fibromyalgia was not a medically determinable

impairment.” Pl. MSJ at 3, 11. Second, she contended that the ALJ “committed legal error by

failing to consider non-exertional impairments when formulating the residual functional capacity

assessment (RFC). Thus, the RFC is not based on substantial evidence.” Id. at 12. Third, she argued

that the ALJ “erred by assigning little weight to the medical opinions given by the long-time

treating physicians, Dr. Hopkins, M.D. and Dr. Celestin, M.D.” Id. at 18.

The Magistrate Judge found none of these arguments persuasive and, for three reasons,

recommended that Corrente’s motion for summary judgment be denied. See Report at 1. First, he

determined that “a reasonable reading of the ALJ’s decision indicates that he found Plaintiff’s

fibromyalgia to be a medically determinable impairment that was non-severe. Although Plaintiff

may take issue with that finding, the process by which the ALJ arrived at that finding is not

inconsistent with SSR 12-2p.” Id. at 4. Second, he rejected Corrente’s argument that the ALJ had

improperly formulated her RFC by omitting “non-exertional impairments” because “the ALJ

instead found that the Plaintiff failed to demonstrate that the impairments actually caused the

limitations alleged by Plaintiff.” Id. at 8. Third, he found that the ALJ had justifiably ignored the

“Treating Source Statements” of Corrente’s treating physicians because “Hopkins’ assessment,

ECF No. 14 at 466–471, is indeed largely blank,” and because there were “internal inconsistencies

in Celestin’s own evaluation.” Id. at 6.4

4 Dr. Aviva Hopkins, Corrente’s rheumatologist, assessed Corrente’s fibromyalgia as part of

Corrente’s application for Social Security Disability Benefits. See Hopkins Treating Source

Corrente advances a smorgasbord of (unnumbered and undifferentiated) objections to these

conclusions. As best as the Court can tell, Corrente objects to the Report’s first conclusion—that

the ALJ found her fibromyalgia to be a “medically determinable impairment.” Obj. at 2, 8–9. She

also objects to the Report’s second conclusion—that, in calculating her RFC, the ALJ accounted

for her “non-exertional limitations.” Id. at 7, 11. But Corrente does not object to the Report’s third

conclusion—that the ALJ justifiably disregarded her treating physicians’ opinions. See generally

id. And so, reviewing this last conclusion for clear error—and seeing none—the Court now adopts

it here.

In her Objections, Corrente also raises a new argument: that the ALJ erred at Step Three

by failing to consider whether her fibromyalgia “equaled a listing, or equaled a listing in

combination with at least one other medically determinable impairment.” Id. at 11–12. But,

because she never made this argument to the Magistrate Judge, he never had a chance to consider

it in writing his Report. This Court will not consider an argument Corrente never submitted to the

Magistrate Judge in the first instance. Cf. Williams v. McNeil, 557 F.3d 1287, 1292 (11th Cir.

2009) (“The district court in this case had the discretion whether to consider Williams’s argument

regarding timeliness of his habeas petition when he did not raise the argument in the first instance

to the magistrate judge.”); United States v. Howell, 231 F.3d 615, 622 (9th Cir. 2000) (“To require

a district court to consider evidence not previously presented to the magistrate judge would

effectively nullify the magistrate judge’s consideration of the matter and would not help to relieve

the workload of the district court.”).5 This new argument, in short, has been waived.

Statement [ECF No. 14] at 466–71. Dr. Serge Celestin, Corrente’s psychiatrist, did the same for

Corrente’s depression. See Celestin Treating Source Statement [ECF No. 14] at 454–65.

5 The Court here disregards both Corrente’s regurgitation of arguments she already made at

summary judgment and her conclusory (and unsupported) claims of Magistrate Judge error

because they are procedurally improper. See Holland v. Colvin, No. 4:14-CV-194-VEH, 2015 WL

This, then, leaves two questions. First, did the ALJ determine that Corrente suffered from

fibromyalgia? And, second, did the ALJ err in failing to include Corrente’s “non-exertional

limitations” in calculating her RFC? We address each in turn.

Analysis

I. Fibromyalgia

According to the Magistrate Judge, “a reasonable reading of the ALJ’s decision indicates

that he found Plaintiff’s fibromyalgia to be a medically determinable impairment that was non-

severe.” Report at 4. And this conclusion finds ample support in the record. The ALJ, after all,

made clear—on no fewer than three occasions—that, in his estimation, Corrente does suffer from

fibromyalgia. See ALJ Decision at 16 (“I find that the claimant’s impairment of fibromyalgia is

not severe[.]”); id. (“A review of the medical evidence indicates that the claimant has a history of

fibromyalgia, which was treated by a rheumatologist, Aviva Hopkins, M.D. (Exs. 5F, 8F, and

18F).”); id. at 17 (“I find that there is no persuasive evidence in the record to establish that

fibromyalgia or any symptoms arising thereof continuously cause significant limitations. Thus,

while the claimant has been diagnosed with fibromyalgia in the past, I find that it does not affect

the claimant’s ability to perform basic work-related functions, and is therefore considered non-

severe.”). The ALJ, in sum, concluded that Corrente suffers from fibromyalgia.

In support of her contrary view—that the ALJ found she does not have fibromyalgia—

Corrente advances three arguments. All are unavailing.

1245189, at *3 (N.D. Ala. Mar. 18, 2015) (in objecting to an R&R, a party may not simply restate

the arguments it presented to the magistrate judge); see also VanDiver v. Martin, 304 F.Supp.2d

934, 937–938 (E.D. Mich. 2004) (“A general objection, or one that merely restates the arguments

previously presented[,] is not sufficient to alert the court to alleged errors on the part of the

magistrate judge. An objection that does nothing more than state a disagreement with a

magistrate’s suggested resolution, or simply summarizes what has been presented before, is not an

‘objection’ as that term is used in this context.”).

First, she contends that the ALJ’s use of the word “impairment” to refer to her

fibromyalgia—rather than the phrase “medically determinable impairment,” which he used to

describe her disc disease and depression—establishes that, while he believed she suffers from the

latter two, he specifically found she did not have the former. See Obj. at 8–9 (arguing that these

“operative statutory terms” are mandatory and that “the ALJ actually knew the precise ‘magic

words’ of ‘medically determinable impairment’ because the ALJ explicitly used those words to

describe the Plaintiff’s depression condition”). But the text of SSR 12-2p belies Corrente’s

position. Under Section III.A of that ruling, “[w]hen a person alleges FM, longitudinal records

reflecting ongoing medical evaluation and treatment from acceptable medical sources are

especially helpful in establishing both the existence and severity of the impairment.” SSR 12-2p,

77 Fed. Reg. at 43643 (emphasis added). Even the portion of SSR 12-2p on which Corrente relies,

in other words, refers to the same unadorned “impairment” that Corrente spends so much time

maligning.

And this makes sense. “The ALJ,” after all, “is not required to use particular phrases or

formulations as long as it can be determined what statutory and regulatory requirements the ALJ

applied.” Schneidmiller v. Comm’r of Soc. Sec., 2016 WL 4578315, at *2 (M.D. Fla. Sept. 2, 2016);

Jamison v. Bowen, 814 F.2d 585, 588–89 (11th Cir. 1987) (“We do not require the ALJs

necessarily cite to particular regulations or cases,” but “in order to make our review meaningful,

we must be able to determine what statutory and regulatory requirements the ALJ did in fact

apply[.]”). As noted, the ALJ three times expressed his view that Corrente suffers from

fibromyalgia. His omission of the magic words “medically determinable” from his description of

Corrente’s “impairment” thus establishes nothing at all.

Second, Corrente says that “the ALJ did not contest the Plaintiff’s legitimacy [sic] of her

alleged depression; rather, the ALJ merely found it did not rise to the level of a ‘severe’

impairment. In contrast, the ALJ did contest the credibility and the legitimacy of the Plaintiff’s

alleged fibromyalgia symptoms[.]” Obj. at 9. Again, Corrente insists, this disparity in the ALJ’s

treatment of her fibromyalgia and depression suggests that he did not believe she suffers from the

former. In fact, however, the ALJ “contested” not the presence of Corrente’s fibromyalgia, but

only the extent of its severity. As he explained: “I find there is no persuasive evidence in the record

to establish that fibromyalgia or any symptoms arising thereof continuously cause significant

limitations.” ALJ Decision at 17 (emphasis added). There is, indeed, no other way to construe the

following statement: “Thus, while the claimant has been diagnosed with fibromyalgia in the past,

I find that it does not affect the claimant’s ability to perform basic work-related functions, and is

therefore considered non-severe.” Id. (emphasis added). In short, again, the ALJ was pellucid:

Corrente has fibromyalgia; it just doesn’t affect her ability to work.

Third, Corrente claims that “the ALJ did not follow the instructions as set forth in [SSR

12-2p]. The instructions require the ALJ to consider the entire record of evidence under the two

tests [referring to Sections II.A and II.B]” and, “[t]hus, by not following the ruling’s instructions,

and by failing to analyze the evidence under both criteria tests, the ALJ inaccurately found the

Plaintiff’s fibromyalgia was not even a medically determinable impairment.” Obj. at 2. Here,

Corrente would be right if the ALJ had—as she submits—concluded that she does not have

fibromyalgia. See Janeda v. Comm’r of Soc. Sec., 2018 WL 1282313, at *6 (M.D. Fla. Mar. 13,

2018) (“[T]he Court finds that the ALJ erred in failing to consider Plaintiff’s fibromyalgia under

Section II.B. of SSR 12-2p and, consequently, may have erred in failing to consider Plaintiff’s

symptoms that arise from her fibromyalgia in determining Plaintiff’s RFC.”); Catalan v. Berryhill,

2018 WL 4055340, at *4 (M.D. Fla. Aug. 9, 2018) (“I am unable to determine whether the ALJ’s

ultimate disability determination is supported by substantial evidence because he failed to consider

Plaintiff’s fibromyalgia according to the criterion set forth in SSR 12-2p.”). But, again, the ALJ

found that she does suffer from fibromyalgia. Corrente cites no case for the proposition that an

ALJ must reference SSR 12-2p when—as here—he concludes that a claimant has fibromyalgia.

And, given the ALJ’s finding, his omission of any reference to SSR 12-2p could only have

redounded to Corrente’s benefit because it resulted in her getting (at least at this step) precisely

what she had asked for: a finding that she suffers from fibromyalgia. In other words, even if the

ALJ’s failure to reference SSR 12-2p were error—and it was not—that error would be harmless.

See Hunter v. Comm’r of Soc. Sec., 609 F. App’x 555, 558 (11th Cir. 2015) (“To the extent that

an administrative law judge commits an error, the error is harmless if it did not affect the judge’s

ultimate determination.”).

It may be, of course, that the ALJ did nothing more than assume the presence of a condition

precedent (that Corrente has fibromyalgia) because that assumption did not alter his ultimate

decision (that Corrente’s ability to work is not significantly impaired). But, even if this is what the

ALJ did—and there’s no evidence to suggest that it was6—this is something courts do all the time.

See, e.g., Conn. Dep’t of Pub. Safety v. Doe, 538 U.S. 1, 7 (2003) (“We find it unnecessary to reach

this question, however, because even assuming, arguendo, that respondent has been deprived of a

liberty interest, due process does not entitle him to a hearing to establish a fact that is not material

under the Connecticut statute.”); Brophy v. Jiangbo Pharm. Inc., 781 F.3d 1296, 1302 (11th Cir.

2015) (“Even assuming arguendo that the investors have sufficiently pled their allegations of

misrepresentations and omissions, we find that significant ambiguities in those allegations make

6 He never, for example, uses the kinds of words and phrases (e.g. “assume,” “assuming arguendo,”

“assuming without deciding”) that are the hallmarks of this methodology.

an inference of scienter more difficult to draw.”). And Corrente cites no case or rule for the

proposition that entertaining such an assumption would be improper.

Because the ALJ found that Corrente suffers from fibromyalgia, Corrente’s first objection

is OVERRULED.

II. Corrente’s RFC

Corrente also objects to the ALJ’s RFC computation. See Obj. at 7. Again, in the Social

Security Disability evaluation process, after an ALJ concludes that the claimant is not gainfully

employed (Step One), that he or she has at least one “severe medically determinable impairment”

(Step Two), and that the combination of impairments “meets or medically equals the criteria of

any of the listings in the Listing of Impairments in appendix 1” (Step Three), he must then

formulate the claimant’s RFC. See SSR 12-2p, 77 Fed. Reg. at 43643–44 (Sections VI.A–C). In

doing so, an ALJ should “consider the effects of all of the person’s medically determinable

impairments, including impairments that are ‘not severe.’ For a person with FM, we will consider

a longitudinal record whenever possible because the symptoms of FM can wax and wane so that a

person may have ‘bad days and good days.’” SSR 12-2p, 77 Fed. Reg. at 43644 (Section VI.D).

In challenging the ALJ’s RFC computation—and, by extension, the Report’s endorsement

of that computation—Corrente marshals two objections.

First, she posits that “it is internally inconsistent to accept the Defendant’s contention that

the ALJ intended to find that the Plaintiff’s fibromyalgia condition was a ‘medically determinable

impairment’. . . but then simultaneously accept the ALJ’s finding that ‘no persuasive evidence in

the record [exists] to establish that fibromyalgia or any symptoms of fibromyalgia continuously

cause significant limitations.’” Obj. at 11. But it’s perfectly consistent to conclude—as both the

ALJ and Magistrate Judge did—that, while Corrente suffers from fibromyalgia, her fibromyalgia

is non-severe, which is to say it does not significantly limit her ability to work. Corrente’s argument

to the contrary presumes that the presence of fibromyalgia—in and of itself—entails significant

limitation. But SSR 12-2p contemplates that not every fibromyalgia is disabling. Only listed

impairments, after all, automatically establish limitation (and, by extension, disability). See Wilbon

v. Comm’r of Soc. Sec., 181 F. App’x 826, 827 (11th Cir. 2006) (“[I]f the impairment meets or

equals a listed impairment, disability is automatically established.”). And fibromyalgia is not a

listed impairment. See SSR 12-2p, 77 Fed. Reg. at 43644 (Section VI.C) (“FM cannot meet a

listing in appendix 1 because FM is not a listed impairment.”).

SSR 12-2p thus implements a two-step process for evaluating whether a claimant’s

fibromyalgia constitutes a qualifying disability: first, the ALJ must determine whether a person

has fibromyalgia, see id. at 43642 (Section IV.A); second, the ALJ must assess the “intensity and

persistence of the person’s pain and other symptoms and determine the extent to which the

symptoms limit the person’s capacity for work,” id. at 43642–43 (Section IV.B). If (as Corrente

seems to suggest) fibromyalgia were always disabling, then SSR 12-2p’s second step would be

superfluous because a finding of fibromyalgia would always establish disability. But this is not the

law. See Frazier v. Berryhill, 2019 WL 3220025, at *3 (N.D. Ala. July 17, 2019) (“To the extent

that Plaintiff cites to multiple diagnoses of fibromyalgia in her medical records, those alone does

[sic] not establish work-related limitations impacting her RFC determination.”); see id. (“To the

extent that Plaintiff argues that the ALJ did not reference, SSR 12-2p, that is harmless.”); Figueroa

v. Comm’r of Soc. Sec., 2017 WL 4992021, at *7 (M.D. Fla. Nov. 2, 2017) (affirming denial of

disability where “the ALJ acknowledged the diagnosis of fibromyalgia, but did not find it

disabling”). Corrente’s claimed inconsistency, therefore, does not exist.

Second, Corrente argues that the ALJ “committed legal error by failing to properly account

for [her] fibromyalgia physical, mental, and non-exertional symptoms of fatigue and pain.” Obj.

at 11. But the ALJ specifically considered all the “medical and non-medical evidence, including

statements by the claimant, objective medical findings, observations regarding the claimant’s

activities of daily living, and the totality of the medical evidence.” ALJ Decision at 22. Corrente’s

suggestion that the ALJ did not consider these “non-exertional symptoms” is thus belied by the

record.

What Corrente really seems to be saying, then—though admittedly she does not make this

point—is that she disagrees with the way in which the ALJ discounted the evidence she submitted

about these “non-exertional symptoms.” Corrente, in other words, appears to suggest that the

ALJ’s RFC is not supported by substantial evidence. As a preliminary matter, although Corrente

advanced this argument in her motion for summary judgment, she neither developed any

arguments for it nor included any citations in support of it. See Pl. MSJ. at 12 (“The ALJ committed

legal error by failing to consider non-exertional impairments when formulating the residual

function capacity assessment (RFC). Thus, the RFC is not based on substantial evidence.”). She

then presented a similar position—again, without argument or citation—in her Objections. See

Obj. at 11 (“Moreover, when formulating the RFC assessment, the ALJ committed legal error by

failing to properly account for the Plaintiff’s fibromyalgia physical, mental, and non-exertional

symptoms of fatigue and pain. The ALJ’s error was harmful, and violated section ‘VI.D.’ of Social

Security Ruling 12-2p.”). Even construing the latter as advancing a “substantial evidence”

objection—admittedly a stretch given that the words “substantial evidence” never appear—

Corrente has waived any such “substantial evidence” claim. Cf. Hamilton v. Southland Christian

Sch., Inc., 680 F.3d 1316, 1319 (11th Cir. 2012) (“[T]he failure to make arguments and cite

authorities in support of an issue waives it.”); In re Egidi, 571 F.3d 1156, 1163 (11th Cir. 2009)

(“Arguments not properly presented . . . are deemed waived.”); Case v. Eslinger, 555 F.3d 1317,

1329 (11th Cir. 2009) (“A party cannot readily complain about the entry of a summary judgment

order that did not consider an argument they chose not to develop for the district court at the time

of the summary judgment motions.”).

In any event, the ALJ’s decision to discount her evidence on “non-exertional symptoms”

is supported by substantial evidence. “Substantial evidence is more than a scintilla and is such

relevant evidence as a reasonable person would accept as adequate to support a conclusion.” Lewis,

12 F.3d at 1439. To begin with, the ALJ properly discounted the Treating Source Statements of

Corrente’s treating physicians—Drs. Celestin and Hopkins—because of errors and omissions in

their opinions. See ALJ Decision. at 21 (“I give [Dr. Celestin’s opinion] little weight because it is

internally inconsistent.”); id. (“I give [Dr. Hopkins’ opinion] little weight because it is mostly

blank.”). And there was plenty of evidence in the record to support this finding. To give but a few

obvious examples: Dr. Hopkins’ Treating Source Statement consisted of responses to a four-page

form that asked thirteen questions (with many subparts). See Hopkins Treating Source Statement

at 467–70. But, rather than take the form (even somewhat) seriously, Dr. Hopkins answered only

the seven questions that required the perfunctory act of checking a box for “yes” or “no” and left

blank the six remaining questions—each of which required either a narrative response or else

included multiple subparts. Id. This Court cannot fault the ALJ for disregarding such faulty—not

to mention careless and lazy—work.

Dr. Celestin’s report, for its part, was internally inconsistent. In response to Question 8, for

instance, Dr. Celestin declared that Corrente was only “mildly limited” in her “ability to

concentrate.” Celestin Treating Statement at 463. And yet, in answering Question 12, Dr. Celestin

wrote that Corrente’s period of concentration—that is, the amount of time Corrente can dedicate

to a task before needing a break—was less than five minutes (hardly a “mild” limitation). Id. at

464. Likewise, in responding to Question 10, Dr. Celestin said that Corrente was “not limited” in

her “ability to adapt or manage oneself.” But, in the space provided under Question 15, Dr. Celestin

insisted that Corrente was likely to be “off task” at work more than 25% of the time. Id. The ALJ

was not wrong to discount these flatly inconsistent assertions.

And the ALJ appropriately discounted Corrente’s self-reported evidence—that, for

instance, she suffered from “pain, fatigue, time off task, difficulties with concentration, persistence

or pace, and depression,” see Pl. MSJ at 13—because it was inconsistent with her day-to-day life.

See Report at 8. So, for example, the ALJ found—and Corrente has not contested—that Corrente

“was planning her daughter’s wedding,” “walk[ing] her dog for exercise,” “swimming three days

a week for about fifteen minutes,” and “doing yoga a few times per week[.]” ALJ Decision at 17.

“Based on the foregoing,” the ALJ concluded “that there is no persuasive evidence in the record

to establish that fibromyalgia or any symptoms arising thereof continuously cause significant

limitations. Thus, while the claimant has been diagnosed with fibromyalgia in the past, I find that

it does not affect the claimant’s ability to perform basic work-related functions, and is therefore

considered non-severe.” Id.

Courts regularly discount a claimant’s self-reported symptoms when, as here, the testimony

about those symptoms is belied by the claimant’s own account of her daily routine. See Hennes v.

Comm’r of Soc. Sec., 130 F. App’x 343, 349–50 (11th Cir. 2005) (“And, as the ALJ noted, the

degree of Hennes’s complaints also were belied by her testimony that she could shop for groceries

and cook meals with her husband, put clothing in the washing machine, fold and hang clothing,

and crochet.”); Chambers v. Saul, 2020 WL 4757336, at *8 (S.D. Fla. Apr. 29, 2020) (“In her

discussion of Plaintiff’s daily activities, the ALJ noted that Plaintiff performed chores, prepared

her meals, shopped, managed her own personal hygiene, and walked her dog up to an hour each

day. These inconsistencies in Plaintiff’s daily actives versus her allegations of pain provides a

factual basis for the ALJ’s credibility determination regarding Plaintiff's subjective complaints of

pain.”’); Steele v. Comm’r of Soc. Sec., 2015 WL 5517283, at *3 (N.D. Ala. Sept. 18, 2015) (ALJ's

determination was supported by substantial evidence because “the ALJ found that Steele’s daily

activities were inconsistent with disabling levels of pain”). The ALJ’s conclusion that Corrente’ □

description of her “non-exertional symptoms” was inconsistent with her daily routine was thus not

even remotely erroneous. Either way, this Court may not “reweigh the evidence, or substitute [its]

judgment” for the ALJ’s—even if the “evidence preponderates against the [ALJ’s] decision.”

Bloodsworth, 703 F.2d at 1239 (11th Cir. 1983) (citation omitted).

TK

After careful consideration of the entire record, the Court hereby

ORDERS AND ADJUDGES as follows:

1. The Report [ECF No. 30] is ADOPTED in full.

2. The Plaintiff's MSJ [ECF No. 23] is DENIED.

3. The Defendant’s MSJ [ECF No. 26] is GRANTED.

4. The Clerk is directed to CLOSE this case.

5. The Court will enter an order of final judgment separately.

6. All other pending motions are DENIED as moot, all hearings are CANCELLED, and

any deadlines are TERMINATED.

DONE AND ORDERED in Fort Lauderdale, hop 2020.

ROYK.ALTMAN —————~—w

UNITED STATES DISTRICT JUDGE

cc: counsel of record

19