The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
HIRAM V. RODRIGUEZ,
Plaintiff,
v. Case No.: 8:23-cv-2085-DNF
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
OPINION AND ORDER
Plaintiff Hiram V. Rodriguez seeks judicial review of the final decision of the
Commissioner of the Social Security Administration (“SSA”) denying his claim for
a period of disability and disability insurance benefits. The Commissioner filed the
Transcript of the proceedings (“Tr.” followed by the appropriate page number), and
the parties filed legal memoranda setting forth their positions. Plaintiff also filed a
reply. As explained below, the decision of the Commissioner is AFFIRMED under
§ 205(g) of the Social Security Act, 42 U.S.C. § 405(g).
I. Social Security Act Eligibility, Standard of Review, Procedural
History, and the Commissioner’s Decision
A. Social Security Eligibility
The law defines disability as the inability to do 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. §§ 416(i), 423(d)(1)(A),
1382c(a)(3)(A); 20 C.F.R. §§ 404.1505(a), 416.905(a). The impairment must be
severe, making the claimant unable to do his previous work, or any other substantial
gainful activity which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A),
1382c(a)(3)(A); 20 C.F.R. §§ 404.1505–404.1511, 416.905–416.911.
B. Standard of Review
The Commissioner’s findings of fact are conclusive if supported by
substantial evidence. 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. Even if the evidence preponderated against the
Commissioner’s findings, we must affirm if the decision reached is supported by
substantial evidence.” Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th
Cir. 2004). In conducting this review, this Court may not reweigh the evidence or
substitute its judgment for that of the administrative law judge, but must consider
the evidence as a whole, taking into account evidence favorable as well as
unfavorable to the decision. Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178
(11th Cir. 2011) (citation omitted); Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir.
1995); Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990). Unlike findings of
fact, the Commissioner’s conclusions of law are not presumed valid and are
reviewed under a de novo standard. Keeton v. Dep’t of Health & Hum. Servs., 21
F.3d 1064, 1066 (11th Cir. 1994); Maldonado v. Comm’r of Soc. Sec., No. 20-14331,
2021 WL 2838362, at *2 (11th Cir. July 8, 2021); Martin, 894 F.2d at 1529. “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.” Keeton, 21 F.3d at 1066.
The Commissioner must follow five steps in evaluating a claim of disability.
20 C.F.R. §§ 404.1520, 416.920. At the first step, the Commissioner must determine
whether the claimant is currently engaged in substantial gainful employment. 20
C.F.R. § 404.1520(a)(4)(i), (b); 20 C.F.R. § 416.920(a)(4)(i), (b). At step two, the
Commissioner must determine whether the impairment or combination of
impairments from which the claimant allegedly suffers is “severe.” 20 C.F.R. §
404.1520(a)(4)(ii), (c); 20 C.F.R. § 416.920(a)(4)(ii), (c). At step three, the
Commissioner must decide whether the claimant’s severe impairments meet or
medically equal a listed impairment. 20 C.F.R. § 404.1520(a)(4)(iii), (d); 20 C.F.R.
§ 416.920(a)(4)(iii), (d). If the Commissioner finds the claimant’s severe
impairments do not meet or medically equal a listed impairment, then the
Commissioner must determine whether the claimant has the residual functional
capacity (“RFC”) to perform his past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv),
(e)–(f); 20 C.F.R. § 416.920(a)(4)(iv), (e)–(f).
If the claimant cannot perform his past relevant work, the Commissioner must
determine at step five whether the claimant’s RFC permits him to perform other
work that exists in the national economy. 20 C.F.R. §§ 404.1520(a)(4)(v), (g),
416.920(a)(4)(v), (g). At the fifth step, there are two ways in which the ALJ may
establish whether the claimant is capable of performing other work available in the
national economy. The first is by applying the Medical Vocational Guidelines, and
the second is by the use of a vocational expert. Phillips v. Barnhart, 357 F.3d 1232,
1239-40 (11th Cir. 2004); Atha v. Comm’r, Soc. Sec. Admin., 616 F. App’x 931, 933
(11th Cir. 2015).
The claimant bears the burden of proof through step four. Atha, 616 F. App’x
at 933. If the claimant meets this burden, then the burden temporarily shifts to the
Commissioner to establish the fifth step. Id.; 20 C.F.R. § 404.1520(a)(4)(v), (g); 20
C.F.R. § 416.920(a)(4)(v), (g). If the Commissioner presents evidence of other work
that exists in significant numbers in the national economy that the claimant is able
to perform, only then does the burden shift back to the claimant to prove he is unable
to perform these jobs. Atha, 616 F. App’x at 993.
C. Procedural History
Plaintiff applied for a period of disability and disability insurance benefits on
October 28, 2019, alleging disability beginning July 30, 2016. (Tr. 60, 252-53). The
application was denied initially and on reconsideration. (Tr. 60, 85). Plaintiff
requested a hearing and on July 6, 2022, a hearing was held before Administrative
Law Judge Anne Sprague (“ALJ”). (Tr. 33-59). On February 13, 2023, the ALJ
entered a decision finding Plaintiff had not been disabled from July 30, 2016,
through the date of the decision. (Tr. 17-26). On July 25, 2023, the Appeals Council
denied Plaintiff’s request for review. (Tr. 1-5). Plaintiff began this action by
Complaint (Doc. 1) filed September 14, 2023, and the case is ripe for review. The
parties consented to proceed before a United States Magistrate Judge for all
proceedings. (Doc. 18).
D. Summary of ALJ’s Decision
In this matter, the ALJ found Plaintiff meets the insured status requirements
of the Social Security Act through June 30, 2025. (Tr. 19). At step one of the
sequential evaluation, the ALJ found that Plaintiff had not engaged in substantial
gainful activity since July 30, 2016, the alleged onset date. (Tr. 19). The ALJ noted
that Plaintiff worked after the alleged disability onset date, but this work activity did
not rise to the level of substantial gainful activity. (Tr. 19). At step two, the ALJ
found that Plaintiff had the following severe impairments: “degenerative disc
disease; obesity; depressive disorder, anxiety disorder; history of substance abuse.”
(Tr. 19). At step three, the ALJ found that Plaintiff did not have an impairment or
combination of impairments that meets or medically equals the severity of any of
the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R.
§§ 404.1520(d), 404.1525, 404.1526). (Tr. 20).
Before proceeding to step four, the ALJ found that Plaintiff had the following
RFC:
After careful consideration of the entire record, I find that the
claimant has the residual functional capacity to perform
medium work as defined in 20 [C.F.R.] § 404.1567(c) except
he is limited to frequent climbing of ramps or stairs, but must
never climb ladders, ropes, or scaffolds. The claimant is
limited to frequent exposure to unprotected heights, dangerous
equipment, extreme cold, and vibrations. He can concentrate,
persist, and maintain pace to perform simple, routine tasks with
occasional interaction with the public.
(Tr. 21).
At step four, the ALJ determined that Plaintiff was not capable of performing
his past relevant work as a nurse. (Tr. 24). At step five, the ALJ found that
considering Plaintiff’s age (52 years old on the alleged disability onset date),
education (limited), work experience, and RFC, there were jobs that existed in
significant numbers in the national economy that Plaintiff could have performed.
(Tr. 24-25). Specifically, the vocational expert testified that a person with Plaintiff’s
limitations could have performed such occupations as:
(1) Warehouse worker, DOT1 921.667-026, medium, SVP 2
(2) Roll coverer, DOT 929.687-042, medium, SVP 2
1 DOT refers to the Dictionary of Occupational Titles.
(3) Fish egg packer, DOT 529.687-086, medium, SVP 2
(Tr. 25). The ALJ concluded that Plaintiff had not been under a disability from July
30, 2016, through the date of the decision. (Tr. 26).
II. Analysis
On appeal, Plaintiff generally raises the issue that the ALJ erred in the RFC
assessment by not accounting for the full limiting effect of Plaintiff’s impairments,
in particular his degenerative disc disease. (Doc. 14, p. 1). In the brief, Plaintiff
specifically raises these two issues that relate to this general issue:
(1) The ALJ did not reasonably rely on the State agency’s administrative
findings on reconsideration that Plaintiff can perform medium work;
and
(2) The ALJ did not properly consider Plaintiff’s subjective complaints and
statements.
(Doc. 14, p. 10, 14). The Court will address these two specific issues.
A. Opinions of State Agency Medical Consultants
Plaintiff argues that the ALJ improperly considered the State agency medical
consultants’ opinions by failing to comply with the regulations. (Doc. 14, p. 10-14).
On February 27, 2020, consultative State agency medical consultant Navjeet Singh,
M.D. initially considered the medical and other evidence of record and completed a
residual functional capacity assessment. (Tr. 73-75). Dr. Singh determined, among
other things, that Plaintiff was limited to light work, and only able to occasionally
lift 20 pounds and frequently lift 10 pounds. (Tr. 73).
On November 29, 2021, State agency medical consultant Sharmishtha Desai,
M.D. on reconsideration considered the medical and other evidence of record and
completed a physical residual functional capacity assessment. (Tr. 90-93). Dr. Desai
found, among other things, that Plaintiff was capable of medium work and could lift
50 pounds occasionally and 25 pounds frequently. (Tr. 90).
The regulations for disability cases filed after March 27, 2017 – such as this
one – changed and an ALJ no longer defers or gives any specific evidentiary weight
to a medical opinion. 20 C.F.R. § 404.1520c(a), 20 C.F.R. § 416.920c(a). Thus, an
ALJ no longer uses the term “treating source” and does not defer or give specific
evidentiary weight, including controlling weight, to any medical opinion or prior
administrative medical finding. Torres v. Comm’r of Soc. Sec., No. 6:19-cv-1662-
ORL-PDB, 2020 WL 5810273, at *2 (M.D. Fla. Sept. 30, 2020) (citing 20 C.F.R.
§ 404.1520c(a)).
Instead, an ALJ assesses the persuasiveness of a medical source’s opinions
given these five factors, with the first two being the most important: (1)
supportability; (2) consistency; (3) relationship with the claimant, including the
length, frequency, and purpose of the examining and any treatment relationship; (4)
specialization; and (5) other factors, such as the source’s familiarity with other
evidence concerning the claim, that tend to support or contradict the medical
opinion. 20 C.F.R. § 404.1520c(a)-(c); 20 C.F.R. § 416.920c(a)-(c). An ALJ may
but is not required to explain how he considers factors other than supportability and
consistency, unless two or more opinions are equally persuasive on the same issue.
20 C.F.R. § 404.1520c(b)(2); 20 C.F.R. § 416.920c(b)(2).
For supportability, the revised rules provide: “The more relevant the objective
medical evidence and supporting explanations presented by a medical source are to
support his or her medical opinion(s) or prior administrative medical finding(s), the
more persuasive the medical opinions or prior administrative medical finding(s) will
be.” 20 C.F.R. § 404.1520c(c)(1); 20 C.F.R. § 416.920c(c)(1). For consistency, the
revised rules provide: “The more consistent a medical opinion(s) or prior
administrative medical finding(s) is with the evidence from other medical sources
and nonmedical sources in the claim, the more persuasive the medical opinion(s) or
prior administrative medical finding(s) will be.” 20 C.F.R. § 404.1520c(c)(2); 20
C.F.R. § 416.920c(c)(2).
The new regulations also differentiate between medical opinions and “other
medical evidence.” 20 C.F.R. §§ 404.1513(a)(2)-(3), 416.913(a)(2)-(3). “A medical
opinion is a statement from a medical source about what you can still do despite your
impairment(s) and whether you have one or more impairment-related limitations or
restrictions” in the abilities listed in paragraphs (a)(2)(i) through (iv). 20 C.F.R.
§§ 404.1513(a)(2), 416.913(a)(2). “Other medical evidence is evidence from a
medical source that is not objective medical evidence or a medical opinion, including
judgments about the nature and severity of your impairments, your medical history,
clinical findings, diagnosis, treatment prescribed with response, or prognosis.” 20
C.F.R. §§ 404.1513(a)(3), 416.913(a)(3).
In the decision, the ALJ considered the persuasiveness of the opinions of both
Dr. Singh and Dr. Desai:
The State agency medical [Dr. Singh] and psychological
consultant’s [sic] at the initial level were overly generous
regarding the claimant’s limitations (Ex. 3A). Their opinions
came some time ago. Thus, they did not review the longitudinal
medical evidence. In fact, they gave controlling weight to the
consultative examiner’s [sic]. Accordingly, I find the opinions
of the consultant’s [sic] at the initial level to be unpersuasive.
On the other hand, the opinions of the State agency medical
[Dr. Desai] and psychological consultant’s [sic] at the
reconsideration level are highly persuasive. They had the
benefit of reviewing the claimant’s medical records in addition
to the consultative examination reports. The medical
consultant’s opinion is consistent with the mild findings shown
in the lumbar x-rays (Ex. 2F; 5F). The psychological
consultant’s opinion is persuasive as it is consistent with the
claimant’s minimal treatment as well as his refusal to take
prescribed medication.
(Tr. 23-24).
Starting with Dr. Singh’s opinion – limiting Plaintiff to jobs at the light
exertional level – the ALJ found this opinion “overly generous regarding” Plaintiff’s
limitations, and thus unpersuasive. (Tr. 23-24). The ALJ reasoned that the opinion
was unsupported by relevant evidence and inconsistent with other medical sources
because it was completed in February 2020, about three years before the decision,
and Dr. Singh did not have the benefit of more recent medical evidence. (Tr. 23-24).
The ALJ also found that Dr. Singh relied almost exclusively on the consultative
exam performed by Sohail Shariff, M.D. on February 12, 2020, with almost no other
medical evidence mentioned. (Tr. 24, 75).
The ALJ then compared Dr. Singh’s opinion with Dr. Desai’s opinion on
reconsideration – which limited Plaintiff to jobs at the medium exertional level. (Tr.
24). In finding this opinion “highly persuasive,” the ALJ reasoned that the opinion
was supported by Dr. Desai having the benefit of more recent medical records in
addition to the 2020 consultative exam, as reflected in Dr. Desai’s November 2021
summary of the medical evidence. (Tr. 24, 92-93). The ALJ found Dr. Desai’s
opinion consistent with these records that included x-rays, showing mild findings in
the lumbar region. (Tr. 24).
Plaintiff argues that the ALJ improperly found Dr. Singh’s opinion
unpersuasive. (Doc. 14, p. 11). Plaintiff claims that the ALJ should have found it
persuasive, and then conducted a more detailed analysis under the regulations. (Doc.
14, p. 11). Under the regulations, if SSA finds two medical or prior administrative
medical findings equally persuasive, then the ALJ must not only consider
supportability and consistency, but must also consider the other factors listed in 20
C.F.R. § 404.1520c(b)(3)-(c).
Plaintiff argues that Dr. Singh had the benefit of medical records other than
just the consultative examination. (Doc. 14, p. 10). Even so, as the ALJ noted, to
assess Plaintiff’s RFC, Dr. Singh relied almost exclusively on the consultative
examination findings. (Tr. 75). And while both Dr. Singh and Dr. Desai reviewed
some of the same records, Dr. Desai also reviewed more recent medical records and
determined that even though Plaintiff had functional limitations based on back pain,
he was “able to do light work/activities, driving, shopping, etc.” and take [over the
counter] ibuprofen for pain. (T. 93). Dr. Desai found that based on the totality of
evidence in the file, there was no listing level impairment, no evidence of severe or
profound functional loss, and the level of severity of Plaintiff’s stated functional
limitations was disproportionate to his current objective exam in the file. (Tr. 93).
The ALJ properly considered these opinions under the applicable regulations.
In essence, Plaintiff invites the Court to reweigh the evidence, which it cannot
do. A court may not decide the facts anew, reweigh the evidence, or substitute its
judgment for that of the Commissioner. Mitchell v. Comm’r, Soc. Sec. Admin., 771
F.3d 780, 782 (11th Cir. 2014). “The ALJ need not refer to every piece of evidence
in his decision, so long as a reviewing court can conclude that the ALJ considered
the claimant’s medical condition as a whole.” Id. Even if the evidence preponderates
against the Commissioner’s decision, the Court must affirm if substantial evidence
supports the Commissioner’s decision. Buckwalter v. Acting Comm’r of Soc. Sec., 5
F.4th 1315, 1320 (11th Cir. 2021). Taking the record and the decision as a whole,
the ALJ did not err, and substantial evidence supports the ALJ’s findings on the
persuasiveness of the opinions of Dr. Singh and Dr. Desai. Based on the ALJ not
finding both opinions persuasive, the ALJ was not required to conduct a more
detailed analysis into the other factors.
B. Subjective Complaints
Plaintiff argues that the ALJ improperly rejected Plaintiff’s complaints of
pain. (Doc. 14, p. 16). Plaintiff first argues that the ALJ used the wrong standard to
evaluate Plaintiff’s subjective statements. (Doc. 14, p. 16). Second, Plaintiff argues
that the ALJ only referenced benign findings and inconsistent statements rather than
abnormal findings and consistent statements. (Doc. 14, p. 17). Third, Plaintiff argues
that the ALJ improperly considered that Plaintiff could not afford treatment. (Doc.
14, p. 17). Finally, Plaintiff argues that the ALJ should have considered Plaintiff’s
work history in considering his subjective statements. Each argument is considered
in turn.
1. Standard for Subjective Complaints
Plaintiff argues that the ALJ used the wrong standard in evaluating Plaintiff’s
subjective complaints. (Doc. 14, p. 16). As to Plaintiff’s subjective statements, the
ALJ generally found:
After careful consideration of the evidence, I find that the
claimant’s medically determinable impairments could
reasonably be expected to cause the alleged symptoms;
however, the claimant’s statements concerning the intensity,
persistence and limiting effects of these symptoms are not
entirely consistent with the medical evidence and other
evidence in the record for the reasons explained in this
decision.
(Tr. 22). Plaintiff argues that the term, “not entirely consistent” with the record is an
improper standard. (Doc. 14, p. 16). Instead, Plaintiff argues that the ALJ should
have considered Plaintiff’s subjective statements based on a preponderance of
evidence and requests remand. (Doc. 14, p. 16).
The Commissioner cites a Seventh Circuit case, Gedatus v. Saul, 994 F.3d
893 (7th Cir. 2021), that addressed the same argument as here. In Gedatus, the
plaintiff appealed the denial of an application for social security benefits. 994 F.3d
893 (7th Cir. 2021). The District Court affirmed the decision and the plaintiff
appealed to the Seventh Circuit. Id. As in this case, the ALJ in Gedatus found the
plaintiff’s statements “‘not entirely consistent with the medical evidence and other
evidence for the reasons explained in the decision.’” Id. As Plaintiff argues here, the
plaintiff in Gedatus criticized the ALJ for using the wrong standard and argued that
the correct standard was a preponderance-of-the-evidence standard. Id. The Court
found, “[b]ut we do not read the ALJ’s language that way. It is clear to us, given the
context, that the ALJ merely used a polite way to say the weight of the evidence did
not support all [of the plaintiff’s] claims.” Id. This reasoning is persuasive and the
Court adopts it for this case. Thus, the ALJ applied the correct legal standard to
analyze Plaintiff’s subjective statements.
2. Subjective Statements
Plaintiff argues that the ALJ selectively referenced only benign findings and
did not discuss Plaintiff’s abnormal findings. (Doc. 14, p. 17-18). Similarly, Plaintiff
argues that the ALJ did not consider Plaintiff’s statements that were consistent with
his subjective complaints. (Doc. 14, p. 17-18).
Generally, a claimant may establish that he is disabled through his own
testimony of pain or other subjective symptoms. Ross v. Comm’r of Soc. Sec., 794
F. App’x 858, 867 (11th Cir. 2019) (citing Dyer v. Barnhart, 395 F.3d 1206, 1210
(11th Cir. 2005)). In such a case, a claimant must establish:
“(1) evidence of an underlying medical condition and either (2)
objective medical evidence that confirms the severity of the
alleged pain arising from that condition or (3) that the
objectively determined medical condition is of such a severity
that it can be reasonably expected to give rise to the alleged
pain.”
Id. (quoting Dyer, 395 F.3d at 1210).
When evaluating a claimant’s testimony, the ALJ should consider: (1) the
claimant’s daily activities; (2) the location, duration, frequency, and intensity of the
claimant’s pain or other symptoms; (3) precipitating and aggravating factors; (4) the
type, dosage, effectiveness, and side effects of any medication to alleviate pain or
other symptoms; (5) treatment other than medication for relief of pain or other
symptoms; (6) any measures a claimant uses to relieve pain or other symptoms; and
(7) other factors concerning a claimant’s functional limitations and restrictions due
to pain or other symptoms. 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3); Ross v.
Comm’r of Soc. Sec., 794 F. App’x 858, 867 (11th Cir. 2019).
The ALJ should consider these factors along with all the evidence of record.
Ross, 794 F. App’x 867. If the ALJ discredits this testimony, then the ALJ “‘must
clearly articulate explicit and adequate reasons for’ doing so.” Id. (quoting Dyer, 395
F.3d at 1210). The ALJ may consider the consistency of the claimant’s statements
along with the rest of the record to reach this determination. Id. Such findings “‘are
the province of the ALJ,’ and we will ‘not disturb a clearly articulated credibility
finding supported by substantial evidence.’” Id. (quoting Mitchell v. Comm’r of Soc.
Sec., 771 F.3d 780, 782 (11th Cir. 2014)). A decision will be affirmed as long as the
decision is not a “broad rejection which is not enough to enable [a reviewing court]
to conclude that the ALJ considered [the claimant’s] medical condition as a whole.”
Dyer, 395 F.3d at 1211 (quotation and brackets omitted).
As stated above, after carefully considering the evidence, the ALJ found that
Plaintiff’s subjective statements on the intensity, persistence, and limiting effects of
his symptoms were not entirely consistent with the medical and other evidence of
record. (Tr. 22). Prior to this statement, the ALJ considered Plaintiff’s subjective
statements from the hearing and from other documents of record. (Tr. 21-22). The
ALJ acknowledged that Plaintiff alleged disability based on a back disorder,
depression, and anxiety. (Tr. 21). The ALJ noted that Plaintiff claimed he could not
bend, lift, remember tasks, and be around others. (Tr. 21). The ALJ also noted that
Plaintiff stated he could go out alone, follow instructions, handle stress, and handle
changes in routine. (Tr. 22). In some reports, Plaintiff claimed he experienced pain
every minute of every day. (Tr. 21-22). In others, Plaintiff reported that his pain
lasted two hours, and in others, it lasted for weeks or months. (Tr. 22). The ALJ
found these statement inconsistent. (Tr. 22). In contrast to these severe allegations
of pain, the ALJ noted that Plaintiff only took over-the-counter pain relievers and
also noted that Plaintiff admitted to normally intact activities of daily living, such as
shopping, driving, handling personal finances, going out to eat, performing light
household tasks, and talking and texting on a phone. (Tr. 22).
As to abnormal findings, the ALJ noted that at a February 2020 consultative
examination, Plaintiff displayed a slow gait with normal stability, was slow to rise
from a seated to standing position secondary to pain, and could not squat, kneel, or
walk on heels and toes. (Tr. 22). The examiner found tenderness to palpation as well
as a limited range of motion in the lower back, with positive straight leg tests
bilaterally. (Tr. 22). The ALJ contrasted these findings with Plaintiff having 5/5
strength in his upper and lower extremities, no neurological deficits, no other
tenderness in the back, and a lumbar spine x-ray showing only mild diffuse
degenerative changes but otherwise unremarkable. (Tr. 22). At a July 2021
emergency room visit, the ALJ noted that a lumbar x-ray revealed only mild lumbar
spine spondylosis. (Tr. 22). Also worth noting, early in the decision, the ALJ
commented that Plaintiff worked after the alleged disability onset date, and even
though the work activity did not rise to the level of substantial gainful activity, the
ALJ “cannot ignore the fact that the claimant had been able to attain employment
during the period at issue.” (Tr. 19).
The ALJ then summarized her findings:
The claimant has severe mental and physical impairments, but
they are not disabling, not even in combination. Diagnostic
imaging of the claimant’s lumbar spine showed no more than
mild abnormalities (Ex. 2F; 5F). Nonetheless, the claimant had
positive objective findings and appeared to be in pain at the
consultative examination in February 2020 (Ex. 2F). Thus, I
limit the claimant to medium work with certain postural
restrictions and environmental precautions.
(Tr. 23).
Here, when reviewing Plaintiff’s subjective statements, the ALJ considered:
Plaintiff’s daily activities; the location, duration, frequency, and intensity of his pain;
the precipitating and aggravating factors; the over-the-counter medications he took
for pain; the treatment; and any measures he used to relieve pain or other symptoms.
Substantial evidence supports the ALJ’s subjective complaint analysis.
3. Ability to Afford Treatment
Third, Plaintiff argues that the ALJ improperly discounted Plaintiff’s
subjective statements because he could not afford emergent treatment or seek
treatment with low-cost or no-cost providers. (Doc. 14, p. 17). Plaintiff claims that
he did seek treatment through BayCare at an emergency room visit in July 2021.
(Doc. 14, p. 17).
In the decision, the ALJ did mention that Plaintiff had not sought regular
medical treatment for his physical condition. (Tr. 22). The ALJ also recognized that
Plaintiff presented to the emergency room in July 2021. (Tr. 22). The ALJ
acknowledged that “healthcare comes at a cost, but the claimant has not required
repeated emergent treatment, nor has he sought healthcare with no-cost or low-cost
healthcare providers.” (Tr. 22).
In evaluating a plaintiff’s symptoms and their functional effect, “the ALJ may
not draw any inferences about an individual’s symptoms and their functional effects
from a failure to seek or pursue medical treatment without first considering any
explanations that might explain the failure to seek or pursue treatment.” Beegle v.
Soc. Sec. Admin., Comm’r, 482 F. App’x 483, 487 (11th Cir. 2012). An ALJ must
consider evidence showing a plaintiff is unable to afford medical care before denying
benefits based on non-compliance with care. Id. (citing Ellison v. Barnhart, 355 F.3d
1272, 1275 (11th Cir. 2003)). When an ALJ relies on noncompliance with prescribed
medical treatment as the “sole ground for the denial of disability benefits,” and the
record contains evidence that a plaintiff was unable to afford the prescribed medical
treatment, then the ALJ must determine whether a plaintiff could afford the
prescribed medical treatment. Ellison, 355 F.3d at 1275. If a court determines the
failure to follow prescribed medical treatment is not one of the “principal factors in
the ALJ’s decision,” then the ALJ need not delve into a plaintiff’s ability to pay, and
this failure is not reversible error. Brown v. Comm’r of Soc. Sec., 425 F. App’x 813,
817 (11th Cir. 2011).
While the ALJ noted that healthcare may be expensive, the ALJ found
Plaintiff had not generally searched for no-cost or low-cost healthcare. Even so, the
ALJ did not deny benefits solely based on Plaintiff’s inability to afford treatment.
Nor did the ALJ solely find Plaintiff’s subjective statements not entirely consistent
with the medical and other evidence of record based on Plaintiff’s inability to afford
medication. The Court finds no error.
4. Work History
Plaintiff argues that the ALJ ignored the fact that prior to his claim being filed
he worked for 37 years, first as a nurse and then after a stroke, switching to jobs as
a cashier, stock clerk, and sanitation worker. (Doc. 14, p. 18). Plaintiff argues that
this work history supports his subjective statements about his limitations. (Doc. 14,
p. 18-19).
While prior work history is a consideration in evaluating a claimant’s
subjective complaints, the Eleventh Circuit has not had an occasion to determine
whether an ALJ’s failure to consider a claimant’s long work history in evaluating a
claimant’s subjective symptoms is erroneous. Mahon v. Comm’r of Soc. Sec., No.
8:16-cv-1462-T-JSS, 2017 WL 3381714, at *10 (M.D. Fla. Aug. 7, 2017); Wilson v.
Soc. Sec. Admin., Comm’r, No. 4:18-CV-00407-JHE, 2020 WL 1285927, at *6
(N.D. Ala. Mar. 16, 2020). At the hearing, the ALJ discussed Plaintiff’s long work
history as a nurse as well as his jobs of cashier, dishwasher, stock clerk, and
sanitation worker. (Tr. 38-39). And in the decision, the ALJ stated that Plaintiff had
past relevant work as a nurse, and noted that Plaintiff worked at other jobs during
the relevant period. (Tt. 19, 24). The Court finds that although the ALJ may have
not expressly discussed Plaintiff’s work history in assessing Plaintiff’s subjective
complaints, the ALJ did review Plaintiff’s work history. Thus, the Court finds no
error.
III. Conclusion
For the reasons discussed above, the Court finds that the decision of the
Commissioner is supported by substantial evidence and the Commissioner applied
the correct legal standard. The decision of the Commissioner is AFFIRMED. The
Clerk of Court is directed to enter judgment consistent with this opinion, terminate
all deadlines, and close the case.
DONE ad ORDERED in Fort Myers, Florida on September 10, 2024.
nou ILAS N. RATER
UNITED STATES MAGISTRATE JUDGE
Copies furnished to:
Counsel of Record
Unrepresented Parties