Winchester v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

HANNAH ROSE WINCHESTER,

Plaintiff,

v. Case No. 6:23-cv-1027-JRK

MARTIN J. O’MALLEY,

Commissioner of Social Security,1

Defendant.

OPINION AND ORDER2

I. Status

Hannah Rose Winchester (“Plaintiff”) is appealing the Commissioner of

the Social Security Administration’s (“SSA(’s)”) final decision denying his3

claim for supplemental security income (“SSI”). Plaintiff’s alleged inability to

work is the result of complex regional pain syndrome, amplified pain syndrome,

depression, generalized anxiety, gastroparesis, gastroesophageal reflux

1 Mr. O’Malley was sworn in as Commissioner of the Social Security

Administration on December 20, 2023. Pursuant to Rule 25(d)(1), Federal Rules of Civil

Procedure, Mr. O’Malley should be substituted for Kilolo Kijakazi as Defendant in this suit.

No further action need be taken to continue this suit by reason of the last sentence of section

205(g) of the Social Security Act, 42 U.S.C. ' 405(g).

2 The parties consented to the exercise of jurisdiction by a United States

Magistrate Judge. See Notice, Consent, and Reference of a Civil Action to a Magistrate Judge

(Doc. No. 15), filed August 1, 2023; Reference Order (Doc. No. 17), entered August 7, 2023.

3 Plaintiff is transgender, currently goes by the name “Jak,” and uses male

pronouns. Tr. at 37-38; Plaintiff’s Amended Memorandum of Law (Doc. No. 24; “Pl.’s Mem.”),

filed September 11, 2023, at 1 n.1.

disease, irritable bowel syndrome, spastic colon, chronic constipation, post-

traumatic stress disorder, gastritis, an ulcer, a hernia, bursitis in the right hip,

and a bacterial overgrowth of the small intestine. Transcript of Administrative

Proceedings (Doc. No. 14; “Tr.” or “administrative transcript”), filed August 1,

2023, at 67-68, 82, 211.4 Plaintiff protectively filed an application for SSI on

April 15, 2018, alleging a disability onset date of June 1, 2015. Tr. at 198-202;

see Tr. at 67, 82. Later, Plaintiff amended the alleged onset disability date to

April 15, 2018. Tr. at 39, 324. The application was denied initially, Tr. at 66,

67-79, 98, 99-101, and upon reconsideration, Tr. at 80, 81-97, 105, 106-11.

On October 9, 2019, an Administrative Law Judge (“ALJ”) held a hearing,

during which Plaintiff’s mother and a vocational expert (“VE”) testified

(Plaintiff’s counsel also appeared).5 Tr. at 35-64. On October 30, 2019, the ALJ

issued a decision finding Plaintiff not disabled since the date the SSI application

was filed. See Tr. at 16-29.

Thereafter, Plaintiff sought review of the decision by the Appeals Council.

See Tr. at 5-6 (Appeals Council exhibit list and order), 194-97 (request for

review). On May 12, 2020, the Appeals Council denied Plaintiff’s request for

4 Some documents are duplicated in the administrative transcript. Citations are

to the first time a document appears.

5 Plaintiff did not appear for the hearing because of “high levels of fear and

anxiety about the process.” Tr. at 335; see Tr. at 37. He was excused, and his mother attended

on his behalf.

review, Tr. at 1-4, thereby making the ALJ’s Decision the final decision of the

Commissioner.

Plaintiff appealed the final decision to this Court. See Complaint (Doc.

No. 1), Case No. 6:20-cv-1225-DNF. On September 3, 2021, the Court entered

an Opinion and Order reversing and remanding the matter for further

administrative proceedings. Tr. at 994-1008; see Tr. at 992 (Judgment). The

Appeals Council then remanded the matter to an ALJ consistent with the

Court’s Opinion and Order. Tr. at 1011. Another ALJ held a hearing on January

25, 2023,6 taking testimony from Plaintiff (who remained represented by

counsel) and a VE. Tr. at 916-43. On February 6, 2023, the ALJ issued a

Decision finding Plaintiff not disabled since the date the SSI application was

filed. See Tr. at 898-909. The Appeals Council declined to assume jurisdiction,

making the ALJ’s Decision the final decision of the Commissioner. On June 2,

2023, Plaintiff commenced this action under 42 U.S.C. § 405(g), as incorporated

by § 1383(c)(3), by timely filing a Complaint (Doc. No. 1), seeking judicial review

of the Commissioner’s final decision.

On appeal, Plaintiff raises as issues: 1) “[w]hether the ALJ legally erred

and failed to provide an adequate rationale when evaluating the persuasiveness

or all of the medical opinions of record and in particular failed to recontact

6 This hearing was held via telephone, with Plaintiff’s consent, due to the COVID-

19 pandemic. Tr. at 918, 1019-43, 1065-66.

treating neurologist Dr. Barr”; and 2) [w]hether the ALJ failed to determine the

range of fluctuation of Plaintiff’s symptoms when determining [the] residual

functional capacity [(‘RFC’)] pursuant to SSR 96-8p.” Pl.’s Mem. at 16, 27 (some

emphasis omitted). On November 6, 2023, Defendant filed a Memorandum in

Support of the Commissioner’s Decision (Doc. No. 28; “Def.’s Mem.”) addressing

the issues. Then, on November 20, 2023, Plaintiff’s Memorandum of Law in

Reply (Doc. No. 29; “Reply”) was filed. After a thorough review of the entire

record and consideration of the parties’ respective arguments, the undersigned

finds that the Commissioner’s final decision is due to be affirmed.

II. The ALJ’s Decision

When determining whether an individual is disabled,7 an ALJ must

follow the five-step sequential inquiry set forth in the Code of Federal

Regulations (“Regulations”), determining as appropriate whether the claimant

(1) is currently employed or engaging in substantial gainful activity; (2) has a

severe impairment; (3) has an impairment or combination of impairments that

meets or medically equals one listed in the Regulations; (4) can perform past

relevant work; and (5) retains the ability to perform any work in the national

7 “Disability” is defined in the Social Security Act as the “inability to engage in

any substantial gainful activity by reason of any medically determinable physical or mental

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

to last for a continuous period of not less than 12 months.” 42 U.S.C. §§ 423(d)(1)(A),

1382c(a)(3)(A).

economy. 20 C.F.R. § 404.1520; see also Simon v. Comm’r, Soc. Sec. Admin., 7

F.4th 1094, 1101-02 (11th Cir. 2021) (citations omitted); Phillips v. Barnhart,

357 F.3d 1232, 1237 (11th Cir. 2004). The claimant bears the burden of

persuasion through step four, and at step five, the burden shifts to the

Commissioner. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987).

Here, the ALJ followed the five-step sequential inquiry. See Tr. at 900-

09. At step one, the ALJ determined Plaintiff “has not engaged in substantial

gainful activity since April 15, 2018, the application date.” Tr. at 900 (emphasis

and citation omitted). At step two, the ALJ found that Plaintiff “has the

following severe impairments: seizure disorder, complex regional pain

syndrome (CRPS), amplified pain syndrome, reflex sympathetic dystrophy,

neuropathy, depressive disorder, generalized anxiety disorder, and

posttraumatic stress disorder (PTSD).” Tr. at 900 (emphasis and citation

omitted). At step three, the ALJ ascertained that Plaintiff “does not have an

impairment or combination of impairments that meets or medically equals the

severity of one of the listed impairments in 20 [C.F.R.] Part 404, Subpart P,

Appendix 1.” Tr. at 901 (emphasis and citation omitted).

The ALJ determined that Plaintiff has the following RFC:

[Plaintiff can] perform light work as defined in 20 CFR [§]

416.967(b) except [he] can occasionally climb ramps and stairs; can

never climb ladders, ropes, or scaffolds; can occasionally stoop and

crouch; can never work at unprotected heights or with hazardous

machinery; can never operate a motor vehicle; can perform simple

tasks; can perform simple work-related decisions; can occasionally

interact with coworkers; and can never interact with the public.

Tr. at 902 (emphasis omitted).

At step four, the ALJ found that Plaintiff “has no past relevant work.” Tr.

at 908 (emphasis and citation omitted). At the fifth and final step of the

sequential inquiry, after considering Plaintiff’s age (“18 years old . . . on the

date the application was filed”), education (“limited education”), work

experience, and RFC, the ALJ relied on the VE’s testimony and found that

“there are jobs that exist in significant numbers in the national economy that

[Plaintiff] can perform,” such as “Small Parts Assembler,” “Inspector Hand

Packager,” and “Laundry Folder,” Tr. at 908-09 (some emphasis and citation

omitted). The ALJ concluded Plaintiff “has not been under a disability . . . since

April 15, 2018, the date the application was filed.” Tr. at 909 (emphasis and

citation omitted).

III. Standard of Review

This Court reviews the Commissioner’s final decision as to disability

pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). Although no deference is given

to the ALJ’s conclusions of law, findings of fact “are conclusive if . . . supported

by ‘substantial evidence.’” Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir.

2001) (citing Falge v. Apfel, 150 F.3d 1320, 1322 (11th Cir. 1998)). “Substantial

evidence is something ‘more than a mere scintilla, but less than a

preponderance.’” Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005)

(quoting Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987)). The substantial

evidence standard is met when there is “such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.” Falge, 150 F.3d at 1322

(quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)); see also Biestek v.

Berryhill, 587 U.S. 97, 103 (2019); Samuels v. Acting Comm’r of Soc. Sec., 959

F.3d 1042, 1045 (11th Cir. 2020) (citation omitted). It is not for this Court to

reweigh the evidence; rather, the entire record is reviewed to determine

whether “the decision reached is reasonable and supported by substantial

evidence.” Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991) (citation

omitted). The decision reached by the Commissioner must be affirmed if it is

supported by substantial evidence—even if the evidence preponderates against

the Commissioner’s findings. Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155,

1158-59 (11th Cir. 2004) (per curiam).

IV. Discussion

Plaintiff challenges the ALJ’s analysis of a number of medical source

opinions: treating gastroenterologist Koraly Horvath, M.D.; non-examining

state-agency physician Linda Galloway, M.D.8; and treating neurologist Carl

8 Plaintiff also briefly mentions the state agency psychologists’ opinions as being

inconsistent with that of Linda Riley, Ph.D., who was for a time Plaintiff’s treating

psychologist. Pl.’s Mem. at 23 (citing Tr. at 77, 91, 890). Plaintiff does not develop argument

about these opinions.

Barr, D.O. See Pl.’s Mem. at 16, 16-27. According to Plaintiff, the ALJ failed to

properly analyze the required factors of supportability and consistency when

evaluating these opinions. Id. at 16-27; see Reply at 2-5. Plaintiff also

challenges the ALJ’s evaluation of his subjective complaints and alleged failure

to determine the range of fluctuation in the complaints. Pl.’s Mem. at 27-30.

Responding, Defendant argues as to the opinion evidence that the ALJ

considered the required factors and made findings supported by substantial

evidence. Def.’s Mem. at 7-17. As to the alleged disregarding of fluctuating

symptoms, Defendant contends the ALJ properly considered the record as a

whole. Id. at 17-18. The issues are addressed in turn.

A. Medical Opinion Evidence

The SSA revised the rules regarding the evaluation of medical evidence

for claims filed on or after March 27, 2017. See Revisions to Rules Regarding

the Evaluation of Medical Evidence, 82 Fed. Reg. 5844, 5844 (January 18,

2017); see also 82 Fed. Reg. 15,132 (March 27, 2017) (amending and correcting

the final Rules published at 82 Fed. Reg. 5,844). Under the new rules and

Regulations, “A medical opinion is a statement from a medical source about

what [the claimant] can still do despite [his or her] impairment(s) and whether

[the claimant] ha[s] one or more impairment-related limitations or restrictions

in the following abilities:” 1) the “ability to perform physical demands of work

activities”; 2) the “ability to perform mental demands of work activities”; 3) the

“ability to perform other demands of work, such as seeing, hearing, or using

other senses”; and 4) the “ability to adapt to environmental conditions.” 20

C.F.R. § 404.1513(a)(2); see also 20 C.F.R. § 404.1502 (defining “[a]cceptable

medical sources”). An ALJ need not “defer or give any specific evidentiary

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

administrative medical finding(s), including those from [the claimant’s] medical

sources.” 20 C.F.R. § 404.1520c(a).9 “Because section 404.1520c falls within the

scope of the Commissioner’s authority and was not arbitrary and capricious, it

abrogates [the United States Court of Appeals for the Eleventh Circuit’s] prior

precedents applying the treating-physician rule.” Harner v. Soc. Sec. Admin.,

Comm’r, 38 F.4th 892, 896 (11th Cir. 2022).

The following factors are relevant in an ALJ’s consideration of a medical

opinion or a prior administrative medical finding: (1) “[s]upportability”; (2)

“[c]onsistency”; (3) “[r]elationship with the claimant”; (4) “[s]pecialization”; and

(5) other factors, such as “evidence showing a medical source has familiarity

with the other evidence in the claim or an understanding of [the SSA’s]

disability program’s policies and evidentiary requirements.” 20 C.F.R.

§ 404.1520c(c). Supportability and consistency are the most important factors,

and the ALJ must explain how these factors were considered. 20 C.F.R.

9 Plaintiff filed his application after the effective date of section 404.1520c, so the

undersigned applies the revised rules and Regulations.

§ 404.1520c(b)(2). Generally, the ALJ is not required to explain how he or she

evaluated the remaining factors. 20 C.F.R. § 404.1520c(b)(2). However, if the

ALJ “find[s] that two or more medical opinions . . . about the same issue are

both equally well-supported . . . and consistent with the record . . . but are not

exactly the same, [the ALJ must] articulate how [he or she] considered the other

most persuasive factors . . . .” 20 C.F.R. § 404.1520c(b)(3).10

1. Dr. Horvath

Dr. Horvath treated Plaintiff for gastrointestinal issues on two occasions

in 2018 prior to rendering the opinion at issue. Tr. at 758. On September 27,

2018, Dr. Horvath issued an opinion on Plaintiff’s functioning for the timeframe

of September 7, 2017 through the date of the opinion. Tr. at 758-61. Most

relevant here, Dr. Horvath indicated that Plaintiff would need unscheduled

restroom breaks one to two times per day, would be away from the work station

for twenty minutes, and would have five minutes advance notice of the need for

a break. Tr. at 759. Dr. Horvath also opined Plaintiff would be off task five

percent of the day and absent from work about once per month. Tr. at 760.

10 When a medical source provides multiple opinions, the ALJ is also not required

to articulate how he or she evaluated each medical opinion individually. 20 C.F.R.

§§ 404.1520c(b)(1), 416.920c(b)(1). Instead, the ALJ must “articulate how [he or she]

considered the medical opinions . . . from that medical source together in a single analysis

using the factors listed [above], as appropriate.” 20 C.F.R. § 404.1520c(b)(1).

Otherwise, Dr. Horvath’s opinion is relatively consistent with the ALJ’s

ultimately-assigned RFC.

The ALJ found regarding Dr. Horvath’s opinion that it is “unpersuasive

because it is inconsistent with and not supported by the objective medical

evidence.” Tr. at 906. The ALJ recognized that Plaintiff had been “hospitalized

for abdominal pain and fecal impaction in October 2016,” but found that “during

the relevant time period” (April 15, 2018 through the date of the Decision),

Plaintiff’s “gastrointestinal condition has been managed with medication.” Tr.

at 906. The ALJ specifically found that Plaintiff “would not require restroom

breaks beyond normal breaks in a workday.” Tr. at 906.

The ALJ did not err in evaluating Dr. Horvath’s opinion. The ALJ

correctly observed that during the relevant time period, the condition has been

well managed. See Tr. at 579 (note dated prior to relevant time period, June 22,

2017, stating the gastrointestinal issues “are better, actually resolved”), 762-65

(January 10, 2019 note indicating “relatively benign GI medications” in the past

and starting MiraLax), Tr. at 1156 (November 20, 2019 note documenting

denied abdominal pain and no changes in bowel habits), 1151 (January 6, 2020

note documenting denied abdominal pain and no changes in bowel habits). The

record simply does not support Dr. Horvath’s assigned limitations during the

relevant time period.

2. Dr. Galloway

On January 11, 2019, Dr. Galloway reviewed the record and provided an

opinion on physical functioning. Tr. at 92-93. Dr. Galloway noted Plaintiff

alleged “stomach problems” but did not assign any limitations in relation to

those problems (such as bathroom breaks, etc.). Tr. at 92-93. The ALJ found Dr.

Galloway’s opinion11 to be “generally persuasive” because, together with the

other non-examining opinions, it was:

[C]onsistent with and supported by the objective

medical evidence, which indicates that [Plaintiff]

experiences some postural, mental, and social

limitations due to his impairments. The objective

medical evidence also supports some exertional

limitations due to [Plaintiff’s] reports of pain. However,

[Plaintiff’s] limitations would not preclude the

performance of all competitive work activity. During

the relevant period, [Plaintiff’s] symptoms have been

stable with treatment. . . . [Plaintiff] is cooperative with

treating medical providers and his hearing demeanor

was appropriate. Exam findings indicate that

[Plaintiff] walks with a normal gait; and he has full

strength in his extremities. Findings from the

consultative exam with Dr. Pollock were

unremarkable. These factors support the above [RFC]

assessment.

Tr. at 906.

These findings are accurate and supported by substantial evidence. See,

e.g., supra at Part IV.A.1; Tr. at 731-33 (unremarkable physical examination by

11 The ALJ did not refer to Dr. Galloway by name, instead referring to Exhibit 4A,

which contains Dr. Galloway’s opinion. See Tr. at 906, 92-93.

Martha Pollock, M.D.). Plaintiff indicates that Dr. Galloway inaccurately stated

when reviewing the file that “There is no indication that there is a medical

opinion from any medical source.” Pl.’s Mem. at 22 (quoting Tr. at 92). In fact,

it appears Plaintiff is actually referring to a note written by the reviewing

psychologist, not Dr. Galloway (it is confusing because the opinions share page

92 of the administrative transcript). See Tr. at 92. In any event, even if Dr.

Galloway wrongly determined that Dr. Horvath’s opinion was not of record at

the time, the ALJ did not err because the ALJ herself recognized and discussed

Dr. Horvath’s opinion.

3. Dr. Barr

Dr. Barr’s opinion was the subject of this Court’s prior remand. See Tr. at

994-1008. On September 23, 2019, he opined on the effects of Plaintiff’s CRPS

from the period August 1, 2017 through the date of the opinion. Tr. at 891-94.

There is no real dispute that, if accepted, the opinion would result in a finding

of disability. The Court, in remanding the matter previously, explained that the

ALJ failed to follow the relevant Social Security Ruling, 03-2p, 2003 WL

22399117, at *1 (Oct. 20, 2003), in analyzing Dr. Barr’s opinions. See Tr. at

1005-08. On remand, the ALJ discussed Dr. Barr’s opinion and SSR 03-2p in

detail:

As explained in SSR 03-2p, an opinion from a medical

provider concerning the effects of CRPS [is] important

in enabling the undersigned to draw conclusions about

the severity of the impairment and [Plaintiff’s RFC].

However, Dr. Barr’s opinion is unpersuasive because it

is inconsistent with and not supported by the objective

medical evidence, including her own treatment notes.

In August 2021, Dr. Barr found that [Plaintiff’s]

coordination was normal, his gait was normal, he had

no joint tenderness, he had normal movement in his

extremities without joint swelling, and his sensation

was intact. These findings required Dr. Barr to consider

both objective evidence and [Plaintiff’s] subjective

reports. The record contains similar unremarkable

exam findings from the relevant period, such as the

findings from the consultative exam. As noted in SSR

03-2p, it is characteristic of CRPS that the degree of

pain reported is out of proportion to the severity of the

injury sustained by the individual. Even with reports

of pain, [Plaintiff] walks with a normal gait; and he has

full strength in his extremities. [Plaintiff] has reported

that he needs an assistive device to walk, but use of an

assistive device is not documented in treatment notes.

In addition, [Plaintiff] has not reported any significant

difficulties with using his hands to his treatment

providers. In general, the symptoms of [Plaintiff’s]

CRPS have been managed with medication and the

level of treatment [Plaintiff] has sought for CRPS

during the relevant period is not suggestive of an

impairment that would preclude all work activity.

[Plaintiff] experiences some limitations, but these

limitations would not preclude the performance of all

competitive work.

Tr. at 907-08 (citations omitted).

The ALJ’s findings reflect adequate consideration of SSR 03-2p and are

supported by substantial evidence. See, e.g., Tr. at 1196-98 (Dr. Barr’s August

27, 2021 note documenting report of relapse of CRPS four months ago with

muscle spasms/myoclonic jerks once per week, but improved sleep, good results

with Tramadol, and an adjustment of dosage), 731-33 (consultative examination

findings), 923 (Plaintiff’s January 25, 2023 testimony that he currently takes

only one prescription medication—Tramadol as needed); see also Tr. at 772-75

(January 23, 2019 note documenting reports of 2-7 episodes a week with aura

but normal gait, posture, muscle bulk, tone and strength; trying a different

medication).

Plaintiff argues the ALJ should have recontacted Dr. Barr. See Pl.’s Mem.

at 25-26. “It is well-established that the ALJ has a basic duty to develop a full

and fair record.” Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003)

(citing 20 C.F.R. § 416.912(d)); see Henry v. Comm’r of Soc. Sec., 802 F.3d 1264,

1267 (11th Cir. 2015) (citing Brown v. Shalala, 44 F.3d 931, 934 (11th Cir. 1995)

(per curiam)). This requires an ALJ to “scrupulously and conscientiously probe

into, inquire of, and explore for all relevant facts.” Henry, 802 F.3d at 1267

(quoting Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir. 1981)). In the case

of evaluating a claim with CRPS, if an ALJ “finds that the evidence is

inadequate to determine whether the individual is disabled, he or she must first

recontact the individual's treating or other medical source(s) to determine

whether the additional information needed is readily available, in accordance

with 20 CFR [§§] 404.1512 and 416.912.” SSR 03-2P, at *4.

Here, the ALJ was not obligated to recontact Dr. Barr, because the ALJ

did not find the evidence to be inadequate to make a determination. Rather, the

ALJ evaluated the evidence in relation to Dr. Barr’s opinion and determined

that the opinion was not supported by the evidence. The ALJ did not err. Even

if there were error, to remand for failure to develop evidence, the record must

contain “evidentiary gaps which result in unfairness or clear prejudice.” Henry,

802 F.3d at 1267 (quoting Brown, 44 F.3d at 935). No such gaps exist here.

B. Subjective Symptom Evaluation and Fluctuation of Symptoms

“[T]o establish a disability based on testimony of pain and other

symptoms, the claimant must satisfy two parts of a three-part showing:

(1) evidence of an underlying medical condition; and (2) either (a) objective

medical evidence confirming the severity of the alleged pain; or (b) that the

objectively determined medical condition can reasonably be expected to give rise

to the claimed pain.” Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002)

(citing Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991)). “The claimant’s

subjective testimony supported by medical evidence that satisfies the standard

is itself sufficient to support a finding of disability.” Holt, 921 F.2d at 1223.

The Regulations provide that an ALJ “will” consider the following factors

related to symptoms such as pain:

(i) [The claimant’s] daily activities; (ii) The location,

duration, frequency, and intensity of [the claimant’s]

pain or other symptoms; (iii) Precipitating and

aggravating factors; (iv) The type, dosage,

effectiveness, and side effects of any medication [the

claimant] take[s] or ha[s] taken to alleviate [his or her]

pain or other symptoms; (v) Treatment, other than

medication, [the claimant] receive[s] or ha[s] received

for relief of [his or her] pain or other symptoms; (vi) Any

measures [the claimant] use[s] or ha[s] used to relieve

[his or her] pain or other symptoms . . .; and (vii) Other

factors concerning [the claimant’s] functional

limitations and restrictions due to pain or other

symptoms.

20 C.F.R. § 404.1529(c)(3)(i)-(vii); see Raper v. Comm’r of Soc. Sec., 89 F.4th

1261, 1277 (11th Cir. 2024). The factors must be considered “in relation to other

evidence in the record and whether the claimant’s statements conflict with

other evidence.” Raper, 89 F.4th at 1277 (citation omitted); see 20 C.F.R. §

404.1529(c)(4). To reject the claimant’s assertions of subjective symptoms,

“explicit and adequate reasons” must be articulated by the ALJ. Wilson, 284

F.3d at 1225; see also Dyer, 395 F.3d at 1210; Marbury v. Sullivan, 957 F.2d

837, 839 (11th Cir. 1992).

The RFC assessment “is the most [a claimant] can still do despite [his or

her] limitations.” 20 C.F.R. § 404.1545(a)(1). It is used at step four to determine

whether a claimant can return to his or her past relevant work, and if necessary,

it is also used at step five to determine whether the claimant can perform any

other work that exists in significant numbers in the national economy. 20 C.F.R.

§ 404.1545(a)(5). In assessing a claimant’s RFC, the ALJ “must consider

limitations and restrictions imposed by all of an individual’s impairments, even

those that are not ‘severe.’” SSR 96-8P, 1996 WL 374184 at *5; see also Pupo v.

Comm’r, Soc. Sec. Admin., 17 F.4th 1054, 1064 (11th Cir. 2021) (citing Schink,

935 F.3d at 1268); Swindle v. Sullivan, 914 F.2d 222, 226 (11th Cir. 1990)

(stating that “the ALJ must consider a claimant’s impairments in combination”)

(citing 20 C.F.R. § 404.1545; Reeves v. Heckler, 734 F.2d 519, 525 (11th Cir.

1984)).

Here, the ALJ summarized Plaintiff’s and his mother’s contentions about

the effect of his impairments on his ability to work. Tr. at 903. The ALJ then

detailed the medical evidence, Tr. at 904-05, before finding that Plaintiff’s

“medically determinable impairments could reasonably be expected to give rise

to the alleged symptoms,” but that Plaintiff’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 th[e D]ecision.” Tr. at 905. The ALJ went on to list that

“the objective medical evidence indicates that [Plaintiff’s] symptoms have been

stable with treatment”; “[m]ental status exams from the relevant time period

have been unremarkable”; Plaintiff “has not been hospitalized for a mental

impairment”; Plaintiff “is cooperative with treating medical providers and his

hearing demeanor was appropriate”; “[e]xam findings indicate that [Plaintiff]

walks with a normal gait”; Plaintiff “has full strength in his extremities”; and

Plaintiff “experiences some limitations due to his severe impairments, but these

limitations would not preclude the performance of all competitive work.” Tr. at

905-06.

In arguing the ALJ erred in evaluating his subjective symptoms, Plaintiff

does not challenge any of the ALJ’s particular findings. Instead, Plaintiff

contends the ALJ failed to take into account the fluctuation of his symptoms

and relies on Tavarez v. Commissioner of Social Security, 638 F. App’x 841, 848

(11th Cir. 2016), Schink v. Commissioner of Social Security, 935 F.3d 1245, 1268

(11th Cir. 2019), and Simon v. Commissioner, Social Security Administration,

7 F.4th 1094, 1106 (11th Cir. 2021). See Pl.’s Mem. at 28-30.

The facts in Tavarez, Schink, and Simon differ from the facts here. First,

they are all cases that analyze the pre-2017 Regulations, which required that a

treating doctor’s opinion be given controlling weight unless there was good

cause to discount it. Here, those Regulations (giving controlling weight to

certain medical opinions) do not apply. Second, as reflected above, the ALJ’s

Decision adequately explains her reasoning with respect to the medical

opinions. Third, the ALJ did not fail to recognize the fluctuation in symptoms.

Instead, the evidence in the file simply does not support the severity of the

symptoms alleged during the relevant time period. The ALJ did not err.

V. Conclusion

The ALJ’s Decision is supported by substantial evidence. Based on the

foregoing, it is

ORDERED:

1. The Clerk of Court is directed to enter judgment pursuant to

sentence four of 42 U.S.C. § 405(g), as incorporated by § 18838(c)(8),

AFFIRMING the Commissioner’s final decision.

2. The Clerk is further directed to close the file.

DONE AND ORDERED in Jacksonville, Florida on September 23, 2024.

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JAMES R. KLINDT

United States Magistrate Judge

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Copies to:

Counsel of Record

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