LITTLE v. COMMISSIONER OF SOCIAL SECURITY

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF GEORGIA

ALBANY DIVISION

M.L., :

:

Plaintiff, :

:

VS. : 1:21-CV-21 (TQL)

:

Commissioner of Social Security, :

:

Defendant. :

______________________________________ :

ORDER

Plaintiff filed this Social Security appeal on January 25, 2021, challenging the

Commissioner’s final decision denying her disability application, finding her not disabled within

the meaning of the Social Security Act and Regulations. (Doc. 1). Both parties consented to the

United States Magistrate Judge conducting any and all proceedings herein, including but not

limited to, ordering the entry of judgment. (Doc. 6; Clerk’s Entry, Jan. 27, 2021). The parties may

appeal from the judgment, as permitted by law, directly to the United States Court of Appeals for

the Eleventh Circuit. 28 U.S.C. § 636(c)(3). Jurisdiction arises under 42 U.S.C. §§ 405(g) and

1383(c). All administrative remedies have been exhausted.

Legal Standard

In reviewing the final decision of the Commissioner, the Court must evaluate whether

substantial evidence supports the Commissioner’s decision and whether the Commissioner applied

the correct legal standards to the evidence. Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir.

2002) (per curiam). The Commissioner’s factual findings are deemed conclusive if supported by

substantial evidence, which is defined as more than a scintilla, such that a reasonable person would

accept the evidence as adequate to support the conclusion at issue. Brito v. Comm’r, Soc. Sec.

Admin., 687 F. App’x 801, 803 (11th Cir. 2017) (per curiam) (first citing Lewis v. Barnhart, 285

F.3d 1329, 1330 (11th Cir. 2002) (per curiam); and then quoting Lewis v. Callahan, 125 F.3d 1436,

1440 (11th Cir. 1997)); Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991) (citations

omitted).

“Even if we find that the evidence preponderates against the [Commissioner’s] decision,

we must affirm if the decision is supported by substantial evidence.” Bloodsworth v. Heckler, 703

F.2d 1233, 1239 (11th Cir. 1983) (citations omitted). “In contrast, the [Commissioner’s]

conclusions of law are not presumed valid. The [Commissioner’s] failure to apply the correct law

or to provide the reviewing court with sufficient reasoning for determining that the proper legal

analysis has been conducted mandates reversal.” Cornelius, 936 F.2d at 1145-46 (citations

omitted).

Under the Regulations, the Commissioner evaluates a disability claim by means of a five-

step sequential evaluation process. 20 C.F.R. § 416.920. First, the Commissioner determines

whether the claimant is working. Second, the Commissioner determines whether the claimant

suffers from a severe impairment which significantly limits his or her ability to carry out basic

work activities. Third, the Commissioner evaluates whether the claimant’s impairments meet or

equal listed impairments in Appendix 1 of Part 404 of the Regulations. Fourth, the Commissioner

determines whether the claimant’s residual functional capacity (RFC) will allow a return to past

relevant work. Finally, the Commissioner determines whether the claimant’s RFC, age, education,

and work experience allow for an adjustment to other work.

Administrative Proceedings1

Plaintiff filed an application for Supplemental Security Income on May 31, 2018. (Tr. 16,

197). In her application, Plaintiff alleged an initial onset date of April 13, 2018. (Tr. 16, 197). The

Social Security Administration denied Plaintiff’s claim initially and upon reconsideration. (Tr. 16,

268, 274). Plaintiff requested a hearing (Tr. 280) and appeared before an Administrative Law

Judge (ALJ) on July 13, 2020 (Tr. 16, 136).

In a hearing decision dated August 28, 2020, the ALJ determined Plaintiff was not disabled.

(Tr. 16-26). The ALJ’s decision became the final decision of the Commissioner upon the Appeals

Council’s denial of review. (Tr. 1-4).

Statement of Facts and Evidence

Plaintiff was born on July 4, 1978 (Tr. 331), and she was thirty-nine (39) years old at the

time she filed her application (Tr. 25). The ALJ found that Plaintiff had no past relevant work

experience. (Tr. 24).

The ALJ determined that Plaintiff suffered from the following severe impairments: lumbar

degenerative disc disease with fusion and osteoarthritis, low vision, asthma, cardiac dysrhythmia

with pacemaker and hypertension, gastroesophageal reflux disease and gastropathy, anemia,

peripheral arterial disease, depression with anxiety, and obesity. (Tr. 19). The ALJ determined that

Plaintiff suffered from the minor impairments of restless leg syndrome, acute sprained ankle, and

vitamin D deficiency, but that none of them required anything more than basic medical care. Id.

Considering the evidence relating to all of Plaintiff’s impairments, individually and in

combination, the ALJ found no evidence that the combined clinical findings from such

impairments reached the level of severity contemplated in the listings. (Tr. 19-21).

1 Plaintiff self-reported that the instant claim is her fourth application for disability. (Tr. 1099); (see also Tr. 197).

Considering the “paragraph B” criteria, the ALJ found that Plaintiff had a mild limitation

in her ability to understand, remember, or apply information; a mild limitation in her ability to

interact with others; a moderate limitation in concentrating for complex tasks; and a mild limitation

in her ability to adapt or manage herself. (Tr. 19-20). Because the ALJ found that Plaintiff’s

medically determinable mental impairments did not cause at least two “marked” limitations or one

“extreme” limitation, the ALJ found that the “paragraph B” criteria were not satisfied. (Tr. 20).

The ALJ found that the evidence failed to establish the presence of the “paragraph C” criteria. Id.

Considering the entire record, the ALJ determined that Plaintiff had the RFC to perform

sedentary work, except that she could lift and carry ten (10) pounds occasionally and ten (10)

pounds frequently; could sit two hours/stand six hours and may alternate sitting/standing for five

minutes at thirty (30) minute intervals, which is an incidental posture shift that would not cause

significant time off task; could occasionally climb ramps, climb stairs, balance, stoop, kneel,

crouch, and crawl; could never climb ladders, ropes, and scaffolds or have similar hazard exposure;

could frequently use her upper extremities and occasionally use her lower extremities for pushing

or pulling and operating controls; could drive but could never work with vibrating hand tools or

on surfaces; and could occasionally have atmospheric exposure to dust or smoke. (Tr. 21).

Considering Plaintiff’s age, education, work experience, and RFC, the ALJ also determined

that there were jobs that existed in significant numbers in the national economy that Plaintiff could

perform. (Tr. 25-26).

Ultimately, the ALJ concluded Plaintiff was not under a disability, as defined in the Social

Security Act, at any time since May 31, 2018, the date Plaintiff’s application was filed. (Tr. 26).

DISCUSSION

Plaintiff argues that the ALJ erred because he (1) failed to find the existence of the alleged

primary severe impairment at step two, (2) failed to properly consider the opinion of the treating

physician and accordingly failed to properly evaluate Listing 4.05, and (3) failed to include a

limitation in Plaintiff’s assessed RFC which addressed Plaintiff’s low vision. (Doc. 16).

Step Two and the Primary Severe Impairment

Plaintiff argues that the ALJ erred at step two because he failed to find that Plaintiff’s

alleged sick sinus syndrome was severe. (Doc. 16, pp. 4-5).

Step two “‘acts as a filter’ in that the ‘finding of any severe impairment . . . is enough to

satisfy the requirement of step two[.]’” Ball v. Comm’r of Soc. Sec. Admin., 714 F. App’x 991, 993

(11th Cir. 2018) (per curiam) (first alteration in original) (quoting Jamison v. Bowen, 814 F.2d

585, 588 (11th Cir. 1987)). Further, no related step four-error occurs when an ALJ considers all of

a claimant’s symptoms and impairments, including those found to be non-severe, along with the

claimant’s medical records and testimony, and all opinion evidence in determining a claimant’s

RFC. Id. (citing Walker v. Bowen, 826 F.2d 996, 1001 (11th Cir. 1987)).

The ALJ determined at step two that Plaintiff had the severe impairment of cardiac

dysrhythmia with pacemaker and hypertension, among others. Having found at least one severe

impairment at step two, the ALJ continued in the sequential evaluation. This was all that was

required at step two.

Further, the ALJ expressly considered the evidence related to Listing 4.05, addressed in

more detail, infra, and in so doing, explicitly considered Plaintiff’s cardiology treatment records.

The ALJ found that Plaintiff’s cardiology treatment records established that Plaintiff’s arrhythmias

remained stable with medications following atrial tachycardia ablation, that she had a permanent

pacemaker, that her most recent cardiac stress test showed normal perfusion, that Plaintiff’s left

ventricular ejection fraction was normal at 70%, that diagnostic studies revealed normal coronary

arteries, and that Plaintiff’s cardiologist noted regular cardiac rate and rhythm with no murmurs,

rubs, gallops, or clicks and normal pulses of all extremities. (Tr. 19). After considering Plaintiff’s

non-severe impairments, in combination with Plaintiff’s severe impairments, the ALJ reduced

Plaintiff’s RFC to sedentary work with additional limitations. (Tr. 21). Having reviewed the

evidence upon which the ALJ based Plaintiff’s RFC, the Court finds that Plaintiff’s RFC is

supported by substantial evidence.

Treating Physician’s Opinion and Listing 4.05

Plaintiff asserts that the ALJ erred because he failed to consider the opinion of Plaintiff’s

treating cardiologist, and thus, failed to consider if Plaintiff’s sick sinus syndrome met or equaled

Listing 4.05. (Doc. 16, pp. 5-7). Plaintiff also alleges that the ALJ failed to consider the statement

of Dr. Oddis, which statement was submitted after Plaintiff’s hearing. Id. at 7.

At the start of Plaintiff’s hearing on July 13, 2020, the ALJ asked whether the record was

complete, and counsel confirmed that it was complete. (Tr. 137). At the conclusion of the hearing,

the ALJ again asked whether the record was complete, specifically questioning why counsel had

not requested that the evidence from a then-upcoming appointment at Emory University, relating

to Plaintiff’s cardiology issues, be added to the file. (Tr. 168-69).

Counsel clarified that the appointment was with Plaintiff’s local cardiologist to determine

whether to send Plaintiff to Emory for referral. (Tr. 169). After learning the cardiologist was Dr.

Oddis, the ALJ noted that Plaintiff had seen Dr. Oddis on April 8, 2020, and as such, the ALJ

assumed the upcoming appointment with Dr. Oddis would “for the most part” be a repeat of the

April 8 visit. (Tr. 170-71). As a result, the ALJ was not specifically following up on Dr. Oddis but

left open the possibility that “something special” might “come[ ] up.” Id.

Plaintiff subsequently submitted the post-hearing opinion of Dr. Oddis, but the ALJ found

that it did not meet the requirements of 20 C.F.R. § 404.935(3)(iv) as to timeliness or materiality,

finding that counsel did not actively and diligently seek to complete the record. (Tr. 16). Even so,

the ALJ found that a survey of the opinion revealed factual inconsistency with the existing record,

particularly Exhibit B26F at pages 6-8. Id.

Exhibit B26F shows that on April 8, 2020, Plaintiff’s heart had a regular rate and rhythm

without murmurs, rubs, gallops, or clicks; her pulses were normal in all four extremities; and the

detailed cardiovascular examination found no irregularities. (Tr. 2433-34). In regard to Plaintiff’s

sick sinus syndrome, that issue was “[r]esolved with [pacemaker] in situ” and the plan was to

“continue to monitor.” (Tr. 2434). Plaintiff was instructed to schedule a follow-up in two months,

to schedule a pacemaker appointment in two months, and to start a medication for her hypotension.

(Tr. 2435). In contrast, Dr. Oddis found in the post-hearing opinion that Plaintiff’s “POTS” was

“severe, resulting in dizziness and syncope” and that Plaintiff met Listing 4.05. (Tr. 2656). A

review of the evidence shows that, to the extent that the ALJ considered it, substantial evidence

supports the ALJ’s decision to discount Dr. Oddis’ opinion.

On March 16, 2018, a cardio catheterization found normal results. (Tr. 569). Physical

examinations of Plaintiff on April 26, 2018, May 21, 2018, and May 30, 2018 all revealed normal

cardiovascular and heart findings. (Tr. 597, 580, 592, respectively). The same findings were made

on June 6, 2018 (Tr. 638), August 27, 2018 (Tr. 1032), October 3, 2018 (Tr. 1135), and December

4, 2018 (Tr. 1388). On May 17, 2018, Plaintiff denied any chest pains or palpitations and her

physical exam revealed normal heart findings. (Tr. 722-23). On November 13, 2019, Plaintiff

reported that her palpitations were not bothersome or limiting but were only noticeable, and she

denied any chest pain, palpitations, or syncope. (Tr. 2445).

Numerous tests and evaluations also revealed normal or essentially normal results. At a

cardiovascular consultation appointment on August 15, 2018, it was noted that no acute

abnormalities were found on her EKG, that she had no problems with syncope, and that Plaintiff’s

heart catheterization in March 2018 revealed normal results. (Tr. 1381). At Plaintiff’s outpatient

evaluation for surgery on August 27, 2018, she had regular rate and rhythm and normal peripheral

perfusion. (Tr. 1032). Similar findings were made on discharge from laparoscopic hernia surgery

on September 15, 2018 (Tr. 937), and at her follow up on October 1, 2018 (Tr. 931).

Plaintiff presented with complaints of chest pain and palpitations on several occasions but

normal or near normal results were found on examination. On February 6, 2019, Plaintiff presented

with complaints of chest pain, but on examination, she had normal cardiovascular findings. (Tr.

1175, 1178). An echocardiogram performed that same day found that she had a stable chest with

no acute abnormality noted, with mild left ventricular hypertrophy and grade I diastolic

dysfunction. (Tr. 1181-82). An echocardiogram on May 15, 2019 found normal results. (Tr. 2475).

On March 11, 2019, Plaintiff presented with complaints of palpitations, but on examination

she had normal cardiovascular findings, and it was also noted that Plaintiff’s then-recent

echocardiogram found normal LVEF with no pericardial effusion. (Tr. 1168, 1171). Similar

findings were made on January 14, 2019 (Tr. 1195), June 5, 2019 (Tr. 1699), and February 12,

2020 (Tr. 1809, 1818). Finally, Plaintiff complained of palpitations on April 8, 2020, but on

examination she had normal cardiovascular findings. (Tr. 2430, 2433-34).

The ALJ rejected Dr. Oddis’ post-hearing opinion for being untimely. That decision is

consistent with the Regulations because Plaintiff made no showing that the agency’s actions misled

her; that she had a physical, mental, educational, or linguistic limitation that prevented her from

submitting the evidence earlier; or that some other unusual, unexpected, or unavoidable

circumstance beyond her control prevented her from submitting the evidence earlier. 20 C.F.R. §§

416.1435(b), (b)(3)(iv). Nor has Plaintiff attempted to make that showing in this Court. (See Doc.

16, pp. 5-7). The Court finds that the ALJ was authorized to find Dr. Oddis’ opinion untimely.

Further, the ALJ expressly discussed the completeness of the record and explained to

Plaintiff that he would consider an opinion from Dr. Oddis as duplicative unless something unusual

showed up in the examination. To the extent that the ALJ considered Dr. Oddis’ opinion and found

that it was factually inconsistent with the existing record, that finding is supported by substantial

evidence.

While Plaintiff cites to other evidence in the record to support a different conclusion than

that reached by the ALJ as to Listing 4.05, the “issue before [the Court] is whether there was

substantial evidence to support the [ALJ’s] decision, not whether there could be substantial

evidence in the record to support a different decision.” Rodriguez ex rel. R.C. v. Berryhill, 2021

WL 5023951 at *7 (11th Cir. 2021) (citing Shinn ex rel. Shinn v. Comm’r of Soc. Sec., 391 F.3d

1276, 1282 (11th Cir. 2004)). “Under a substantial evidence standard of review, [Plaintiff] must

do more than point to evidence in the record that supports her position; she must show the absence

of substantial evidence supporting the ALJ’s conclusion.” Sims v. Comm’r of Soc. Sec., 706 F.

App’x 595, 604 (11th Cir. 2017) (per curiam) (citation omitted). The Court finds that substantial

evidence supported the ALJ’s consideration and evaluation of Listing 4.05.

Low Vision and RFC

Plaintiff argues that the ALJ erred because he failed to consider Plaintiff’s low vision in

formulating her assessed RFC. (Doc. 16, pp. 8-9). Plaintiff also appears to argue without

elaboration that the ALJ failed to order a consultative examination. Id. at 8.

As an initial matter, Plaintiff asserts that the ALJ had to “accord substantial or considerable

weight to the opinions of treating physicians, absent ‘good cause’ to the contrary.” Id. (citations

omitted). However, the Regulations governing Plaintiff’s claim were amended for claims filed on

or after March 27, 2017, and the Eleventh Circuit recently held in a published opinion that the

amended Regulations validly abrogated its prior precedent for applying the treating-physician rule.

Harner v. Soc. Sec. Admin., Comm’r, 38 F.4th 892, 896 (11th Cir. 2022). Plaintiff’s claim was

filed on May 31, 2018. (Tr. 16). Accordingly, the ALJ was not required to “defer or give any

specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior

administrative medical finding(s), including those from [Plaintiff’s] medical sources.” 20 C.F.R.

§ 416.920c(a).

The ALJ discussed the evidence relating to Plaintiff’s vision, noting that her vision with

correction was 20/80 in her right eye and 20/200+ in her left, as of October 2018. (Tr. 22).

However, her vision was found to be 20/50 in her right eye, and hand motion in her left eye on

September 30, 2019, and the examining doctor found “mild changes to normal findings in the

cornea, retina, and visual fields.” (Tr. 23). The ALJ stated that it “is not SSA procedure to find that

monocular vision causes more than moderate functional limitations.” (Tr. 22). The ALJ also noted

that Plaintiff “viewed social media” and that she “enjoyed crocheting, making necklaces, and

reading[.]” (Tr. 23).

The ALJ’s findings are consistent with the evidence. Plaintiff testified at her hearing before

the ALJ that she very rarely drives, but if she does, it is to go to the grocery store, but she does not

do so often. (Tr. 142). In her function report, Plaintiff reports that she reads as a hobby and that

she watches television with her daughter daily. (Tr. 404). In a third-party function report,

Plaintiff’s friend says that Plaintiff reads and crochets. (Tr. 423). Another friend reports that

Plaintiff does “small crafts” and uses a computer for social activities with others. (Tr. 451). As to

the medical evidence, on October 5, 2018, Plaintiff’s vision was 20/80 in her right eye and 20/200+

in her left eye. (Tr. 1095). On September 30, 2019, Plaintiff had 20/50 vision in her right eye and

hand motion in her left eye, and mild to moderate findings otherwise. (Tr. 1662-63). Accordingly,

the ALJ’s findings as to the evidence relating to Plaintiff’s visual impairment are supported by

substantial evidence.

The ALJ explicitly stated that he considered all of Plaintiff’s impairments, whether severe

or not, in making his findings as to Plaintiff’s RFC. (Tr. 24). Plaintiff’s speculation that the ALJ

did not “take into account” Plaintiff’s low vision in assessing Plaintiff’s RFC is simply that:

speculation. Finally, Plaintiff does not indicate what other restrictions the ALJ could have

imposed, other than a finding that Plaintiff was disabled. (Doc. 16, p. 9). However, the issue before

the Court is whether there was substantial evidence to support the ALJ’s decision, not whether

there is substantial evidence in the record to support a different decision. Rodriguez ex rel. R.C.,

2021 WL 5023951 at *7 (citing Shinn ex rel. Shinn, 391 F.3d at 1282).

Plaintiff self-reported driving and engaging in activities which do not suggest that she had

a vision impairment beyond that which the ALJ found from the evidence. The ALJ considered the

evidence and made findings therefrom, which findings are supported by substantial evidence.

Accordingly, the ALJ’s findings as to Plaintiff’s vision impairment in assessing her RFC are

supported by substantial evidence.

To the extent that Plaintiff may argue without elaboration that the ALJ failed to develop

the record by ordering a consultative examination (Doc. 16, p. 8), an ALJ has “a duty to develop

the record where appropriate but is not required to order a consultative examination as long as the

record contains sufficient evidence for the [ALJ] to make an informed decision.” Ingram v.

Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1269 (11th Cir. 2007) (citing Doughty v. Apfel, 245

F.3d 1274, 1281 (11th Cir. 2001)). Where there are no “evidentiary gaps that result[] in unfairness

or clear prejudice[,]” an ALJ is not required to order a consultative examination. Colon v. Colvin,

660 F. App’x 867, 870 (11th Cir. 2016) (first citing Brown v. Shalala, 44 F.3d 931, 935 (11th Cir.

1995); and then citing Ingram, 496 F.3d at 1269). As discussed, supra, the Court finds that the

record contains sufficient evidence of Plaintiff’s vision and impairments related thereto such that

the ALJ made an informed decision.

Having considered the ALJ’s decision and all of the evidence in the record, the Court finds

that the ALJ’s decision is supported by substantial evidence.

CONCLUSION

As the Commissioner’s decision that Plaintiff was not disabled is supported by substantial

evidence, the Commissioner’s decision is AFFIRMED pursuant to Sentence Four of § 405(g).

SO ORDERED, this 8th day of September, 2022.

s/ THOMAS Q. LANGSTAFF

UNITED STATES MAGISTRATE JUDGE