MCGUIRE v. O'MALLEY

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

LINDA D. McGUIRE1,

Plaintiff,

vs. Case No. 1:23CV106-AW-MAF

MARTIN J. O’MALLEY,

Commissioner of Social Security2,

Defendant.

___________________ ________/

REPORT AND RECOMMENDATION

This cause is before the Court pursuant to 42 U.S.C. § 405(g) for

review of the final determination of the Commissioner of the Social Security

Administration (Commissioner) denying Plaintiff’s application for Period of

Disability and Disability Insurance Benefits (DIB) and for Supplemental

Security Income (SSI). After careful consideration of the record, for the

reasons stated below, the undersigned recommends that the decision of the

Commissioner be AFFIRMED.

1 Plaintiff divorced and remarried during the pendency of her proceedings.

Her surname is as reflected above.

2 Martin O’Malley was nominated by President Biden to be Commissioner of

the Social Security Administration and, following confirmation by the U.S.

Senate, was sworn into office December 20, 2023. The Clerk of Court is

directed to correct the docket to reflect Defendant’s name.

1

I. Procedural History

Plaintiff’s underlying claim has been pending for nearly eight years and

was subjected to several layers of review at the district court and

administrative level.

Plaintiff filed an application for Period of Disability and Disability

Insurance Benefits on August 23, 2016, alleging she became disabled

beginning July 27, 2016. Tr. 192-98.3 That application was denied initially

and on reconsideration. Tr. 113-17; 119-21. Plaintiff requested a hearing

before an Administrative Law Judge (ALJ) (Tr. 122-23), which hearing was

held on June 19, 2018, before ALJ James Grimes. Tr. 46-86. ALJ Grimes

issued an unfavorable decision on November 20, 2018 (Tr. 10-20), and the

Appeals Council denied review. Tr. 1-3. Plaintiff appealed, and the District

Court reversed and remanded the proceedings, finding that Plaintiff’s

moderate limitation in the area of concentration, persistence, and

maintaining pace was not adequately accounted for in the residual functional

capacity (RFC), nor was Plaintiff’s allegation regarding difficulty paying

attention. Tr. 899. Ultimately, the Court concluded that ALJ Grimes failed

to properly explain how the evidence supports the conclusion that Plaintiff

3 References to the record in this case will be to “Tr.” followed by the relevant

page number.

2

can sustain work for a full eight-hour day. Tr. 1013. On remand, the

Appeals Council ordered a new hearing, Tr. 1017-19, also noting that Plaintiff

had subsequently applied for Supplemental Security Income, and ordered

the new ALJ to consolidate Plaintiff’s two claims. Tr. 1019; 1265-75.

Thereafter, a telephonic hearing was held on March 16, 2022, by

agreement because of the COVID 19 pandemic. Tr. 936-67. A different

ALJ, Joseph T. Scruton, presided. Tr. 938. Plaintiff appeared through

counsel, Amy Hansen Geddes, and testified on her own behalf. Tr. 940;

950-61. Diana Sims, an impartial vocational expert (VE) also testified by

telephone. Tr. 962-66. ALJ Scruton issued a partially favorable decision on

June 2, 2022, finding that Plaintiff became disabled on November 19, 2020,

but she was not disabled prior to that date (from July 27, 2016 through

November 18, 2020). Tr. 899-920. The Appeals Council denied Plaintiff’s

request for review on March 8, 2023. Tr. 885-89.

Through counsel, Plaintiff filed her complaint with this Court on May 3,

2023. ECF No. 1. Plaintiff filed a Motion for Summary Judgment and

memorandum in support of her position on September 29, 2023. ECF Nos.

16, 17. The Commissioner filed a responsive memorandum in support of

the Commissioner’s position on November 29, 2023. ECF No. 20. This

matter is ripe for review.

3

II. Issues Presented

Plaintiff’s Complaint and Motion and Brief in Support of Summary

Judgment, Plaintiff presents the following issues for review:

(1) The ALJ’s assessment of Plaintiff’s mental impairments under SSR

96-8p is not supported by substantial evidence.

(2) The ALJ’s assessment of Plaintiff’s impairments and physical

findings are not supported by substantial evidence.

(3) The ALJ’s assessment of Plaintiff’s allegations is not supported

by substantial evidence.

ECF No. 17, pp. 13, 20, 23. As these are the only issues presented, the

Court will limit its review of the ALJ opinion and record to these matters.

III. Legal Standards Guiding Judicial Review

Review of the Commissioner’s decision is limited. Bloodsworth v.

Heckler, 703 F.2d 1233, 1239 (11th Cir. 1986). This Court must affirm the

decision if it is supported by substantial evidence in the record and premised

upon correct legal principles. 42 U.S.C. § 405(g); Wilson v. Barnhart, 284

F.3d 1219, 1221 (11th Cir. 2002); Chester v. Bowen, 792 F.2d 129, 131 (11th

Cir. 1986). “Substantial evidence is more than a scintilla, but less than a

preponderance. It is such relevant evidence as a reasonable person would

accept as adequate to support a conclusion.” Bloodsworth, 703 at 1239

(citations omitted); accord Moore v. Barnhart, 405 F.3d 1208, 1211 (11th

4

Cir. 2005).

The Court may not decide the facts anew, reweigh the evidence, or

substitute its judgment for that of the Commissioner, Bloodsworth, 703 F.2d

at 1239, although the Court must scrutinize the entire record, consider

evidence detracting from the evidence on which the Commissioner relied,

and determine the reasonableness of the factual findings. Lowery v. Sullivan,

979 F.2d 835, 837 (11th Cir. 1992). Review is deferential, but the reviewing

court conducts “an independent review of the record.” Flynn v. Heckler, 768

F.2d 1273, 1273 (11th Cir. 1985).

A disability is defined as a physical or mental impairment of such

severity that the claimant is not only unable to do past relevant work, “but

cannot, considering [her] age, education, and work experience, engage in

any other kind of substantial gainful work which exists in the national

economy.” 42 U.S.C. § 423(d)(2)(A). A disability is an “inability to engage in

4 “If the Commissioner’s decision is supported by substantial evidence we

must affirm, even if the proof preponderates against it.” Phillips v. Barnhart,

357 F.3d 1232, 1240, n.8 (11th Cir. 2004) (citations omitted). “A ‘substantial

evidence’ standard, however, does not permit a court to uphold the

Secretary’s decision by referring only to those parts of the record which

support the ALJ. “Unless the Secretary has analyzed all evidence and has

sufficiently explained the weight he has given to obviously probative exhibits,

to say that his decision is supported by substantial evidence approaches an

abdication of the court’s ‘duty to scrutinize the record as a whole to determine

whether the conclusions reached are rational.’” Cowart v. Schweiker, 662

F.2d 731, 735 (11th Cir. 1981) (citations omitted).

5

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); see 20 C.F.R. § 404.1509

(duration requirement); Barnhart v. Walton, 535 U.S. 212, 223-24 (2002).

The Commissioner analyzes a claim in five steps, pursuant to 20

C.F.R. § 404.1520(a)(4)(i)-(v):

1. Is the individual currently engaged in substantial gainful activity?

2. Does the individual have any severe impairments?

3. Does the individual have any severe impairments that meet or

equal those listed in Appendix 1 of 20 C.F.R. Part 404, Subpart

P?

4. Does the individual have the residual functional capacity (RFC)

to perform work despite limitations and are there any

impairments which prevent past relevant work?5

5 An RFC is the most a claimant can still do despite her limitations.

20 C.F.R. § 404.1545(a)(1). It is an assessment based upon all of the

relevant evidence including the claimant’s description of her limitations,

observations by treating and examining physicians or other persons, and

medical records. Id. The responsibility for determining claimant’s RFC lies

with the ALJ. 20 C.F.R. § 404.1546(c); see Social Security Ruling (SSR) 96-

5p, 1996 SSR LEXIS 2, at *12 (July 2, 1996) (“The term ‘residual functional

capacity assessment’ describes an adjudicator’s finding about the ability of

an individual to perform work-related activities. The assessment is based

upon consideration of all relevant evidence in the case record, including

medical evidence and relevant nonmedical evidence, such as observations

of lay witnesses of an individual’s apparent symptomatology, an individual’s

own statement of what she is able or unable to do, and many other factors

that could help the adjudicator determine the most reasonable findings in

6

5. Do the individual’s impairments prevent other work?

A positive finding at step one or a negative finding at step two results

in disapproval of the application for benefits. A positive finding at step three

results in approval of the application for benefits. At step four, the claimant

bears the burden of establishing a severe impairment that precludes the

performance of past relevant work. Consideration is given to the assessment

of the claimant’s RFC and the claimant’s past relevant work. If the claimant

can still do past relevant work, there will be a finding that the claimant is not

disabled. If the claimant satisfies this burden of demonstrating he cannot do

prior work, the burden shifts to the Commissioner at step five to establish

that despite the claimant’s impairments, the claimant is able to perform other

work in the national economy in light of the claimant’s RFC, age, education,

and work experience. Phillips v. Barnhart, 357 F.3d 1232, 1237-39 (11th

Cir. 2004) (citing 20 C.F.R. § 404.1520(a)(4)(v), (e) & (g)). If the

Commissioner carries this burden, the claimant must prove that she cannot

perform the work suggested by the Commissioner. Hale v. Bowen, 831 F.2d

1007, 1011 (11th Cir. 1987).

light of all the evidence.”). The Court will apply the SSR in effect when the

ALJ rendered his decision. See generally, Bagliere v. Colvin, No. 1:16-CV-

109, 2017 U.S. Dist. LEXIS 8779, at *10-18, (M.D. N.C. Jan. 23, 2017),

adopted, 2017 U.S. Dist. LEXIS 51917 (M.D. N.C. Feb. 23, 2017).

7

Plaintiff bears the burden of proving that she is disabled, and

consequently, is responsible for producing evidence in support of her claim.

See 20 C.F.R. § 404.1512(a); Moore, 405 F.3d at 1211. As the finder of fact,

pursuant to 20 C.F.R. §§ 404.1502(a) and 404.1513(a)(2), the ALJ considers

medical opinions from licensed physicians and psychologists and acceptable

medical sources. The ALJ must evaluate all the medical opinions of record

and resolve conflicts that might appear. 20 C.F.R. § 404.1527.

The Regulations set forth three tiers of sources for medical opinions:

(1) treating physicians; (2) non-treating, examining physicians; and (3) non-

treating, non-examining physicians. Himes v. Comm'r of Soc. Sec., 585 F.

App'x 758, 762 (11th Cir. 2014) (citing 20 C.F.R. §§ 404.1527(c)(1)-(2),

416.927(c)(1)-(2)). While an ALJ must usually give substantial or

considerable weight to a treating physician's opinion, the opinion of a one-

time examining doctor—such as a doctor who performs a consultative

examination— merits no such deference. Crawford v. Comm'r of Soc. Sec.,

363 F.3d 1155, 1160 (11th Cir. 2004) (citing McSwain v. Bowen, 814 F.2d

617, 619 (11th Cir. 1987) ). This is so because treating physicians “are likely

to be the medical professionals most able to provide a detailed, longitudinal

picture of your medical impairment(s) and may bring a unique perspective to

the medical evidence that cannot be obtained from the objective medical

8

findings alone or from reports of individual examinations, such as

consultative examinations or brief hospitalizations.” 20 C.F.R. §

404.1527(c)(2). “This requires a relationship of both duration and frequency.”

Doyal v. Barnhart, 331 F.3d 758, 762 (10th Cir. 2003). “Because much of

the rationale underlying the treating physician rule involves the physician's

familiarity with his patient, it does not apply to a physician who bases his

opinion of a claimant's limitations upon a single visit” or mere review of

records. See Swann v. Astrue, No. 3:07cv129/LAC/EMT, 2008 WL 818500,

at *8 (N.D. Fla. March 26, 2008) (citing Gibson v. Heckler, 779 F.2d 619, 623

(11th Cir.1986)). An examining doctor's opinion, however, is usually

accorded greater weight than that of a non-examining physician. Huntley v.

Soc. Sec. Admin., Comm'r, 683 F. App'x 830, 832 (11th Cir. 2017) (citing

Sryock v. Heckler, 764 F.2d 834, 835 (11th Cir. 1985)).

Because Plaintiff filed her application for benefits before March 27,

2017, the treating physician rule applies in this case.6 An ALJ is required to

give the treating physician’s opinion “substantial or considerable weight

unless ‘good cause’ was shown to the contrary.” Phillips, 357 F.3d at 1240-

6 In 2017, the Commissioner issued a new regulation, 20 C.F.R. 1520c,

which abrogated the “treating physician rule.” Harner v. SSA, Comm’r, 38

F.4th 892, 896 (11th Cir. 2022). But this new rule only applies to SSI and

disability insurance applications filed after March 27, 2017.

9

41 (citing Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997). “Good

cause exists when (1) the treating physician’s opinion was not bolstered by

the evidence, (2) the evidence supported a contrary finding, or (3) the

treating physician’s opinion was conclusory or inconsistent with his or her

own medical records.” Schink v. Comm’r of Soc. Sec., 935 F.3d 1245, 1259

(11th Cir. 2019). If the decision of the ALJ is explained and relies on evidence

in the record it should be upheld. “We will not second guess the ALJ about

the weight the treating physician’s opinion deserves so long as he articulates

a specific justification for it.” Hunter v. SSA Comm’r, 808 F.3d 818, 823 (11th

Cir. 2015). Further, where a treating physician has merely made conclusory

statements, the ALJ may afford them greater weight only to the extent they

are supported by clinical or laboratory findings and are consistent with other

evidence as to a claimant’s impairments. Wheeler v. Heckler, 784 F.2d 1073,

1075 (11th Cir. 1986).

Moreover, opinions on issues such as whether the claimant is unable

to work, the claimant’s RFC, and the application of vocational factors, “are

not medical opinions, . . . but are, instead, opinions on issues reserved to the

Commissioner because they are administrative findings that are dispositive

of the case; i.e., that would direct the determination or decision of disability.”

20 C.F.R. § 404.1527(d); see Bell v. Bowen, 796 F.2d 1350, 1353-54 (11th

10

Cir. 1986); “[T]reating source opinions on issues reserved to the

Commissioner are never entitled to controlling weight or special

significance.” SSR 96-5p, 1996 SSR LEXIS 2, at *6 (July 2, 1996; rescinded

eff. Mar. 27, 2017). Although physician’s opinions about what a claimant

can still do or the claimant’s restrictions are relevant evidence, such opinions

are not determinative because the ALJ has the responsibility of assessing

the claimant’s RFC.

Additionally, to establish disability based on testimony of pain and

other symptoms, a plaintiff must satisfy two prongs of the following three-part

test: “(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, 284 F.3d at 1225 (citing

Holt v. Sullivan, 921 F.3d 1221, 1223 (11th Cir.1991)).

An ALJ may reject complaints of pain as not credible, but that finding

will be reviewed to determine if it is based on substantial evidence. Moreno

v. Astrue, 366 F. App'x 23, 28 (11th Cir. 2010) (citing Marbury v. Sullivan,

957 F.2d 837, 839 (11th Cir.1992). If an ALJ discredits the subjective

testimony of a plaintiff, he must “articulate explicit and adequate reasons for

doing so. [citations omitted]. Failure to articulate the reasons for discrediting

11

subjective testimony requires, as a matter of law, that the testimony be

accepted as true.” Wilson, 284 F.3d at 1225. “A clearly articulated credibility

finding with substantial supporting evidence in the record will not be

disturbed by a reviewing court.” Foote v. Chater, 67 F.3d 1553, 1562 (11th

Cir.1995)). The court can rely on discrepancies in claimant's descriptions of

daily life and claims of infirmity to evaluate the claimant's credibility. Moore,

405 F.3d at 1212 (ALJ's negative credibility determination because Plaintiff

could drive, provide childcare, bathe, and take care of herself, and do

housework).

IV. ALJ Scruton’s Findings

In his order, ALJ Scruton properly articulates and follows the five-step

sequential evaluation process for determining whether an individual is

disabled. Tr. 900-01. See 20 CFR § 404.1520(a) and 416.920(a). In

doing so, ALJ Scruton made the following findings (finding in bold):

1. The claimant meets the insured status requirements of the

Social Security Act through December 31, 2021. This fact is not in dispute.

2. The claimant has not engaged in substantial gainful activity

since July 27, 2016, the alleged onset date (20 CFR 404.1571 et seq. and

416.971 et seq.). This fact is not in dispute.

12

3. Since the alleged onset date of disability, July 27, 2016, the

claimant has had the following severe impairments: fibromyalgia,

degenerative disc disease with radiculopathy, obesity, and depression

(20 CFR 404.1520(c) and 416.920(c)). This fact is not in dispute.

4. Since July 27, 2016, the claimant has not had an impairment

or combination of impairments that meets or medically equals the

severity of one of the listed impairments in 20 CFR Part 404, Subpart P,

Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d),

416.925 and 416.926). Tr. 904. This fact is in dispute.

While ALJ Scruton found that Plaintiff suffers from severe impairments,

he concluded that none of them met the criteria of any listed impairment.

With respect to Plaintiff’s degenerative disc disease, ALJ Scruton confirmed

that Plaintiff’s condition did not meet the requirements of Listing 1.15

(compromise of a nerve root) because Plaintiff regularly had a normal gait,

and the record did not show that Plaintiff required any assistive device. Tr.

904. Similarly, as required by Ruling 19-2p, ALJ Scruton contends he

considered Plaintiff’s obesity in reaching his RFC conclusions. Id.

With respect to Plaintiff’s claimed fibromyalgia, ALJ Scruton found that

Plaintiff’s longitudinal records do not impose the limitations described in

listings 1.15, 1.16, 1.18 or 1.21. Tr. 905. First, Plaintiff does not have

13

extreme limitations in the ability to perform fine and gross movements or in

her ambulation. Id. Second, Plaintiff’s fibromyalgia does not have the

features of a connective disorder as referenced in 14.02 (systemic lupus

erythematosus), 14.04 (systemic sclerosis and scleroderma) or 14.06

(undifferentiated and mixed connective tissue disease), which are the

Listings considering the signs and symptoms discussed in SSR 12-2p.

Third, Plaintiff’s fibromyalgia is not of listing level severity even when

considered together with Plaintiff’s other medically determinable

impairments.

ALJ Scruton also concluded that Plaintiff’s mental impairments also do

not meet or medically equal the criteria of listings 12.04 and 12.06 when

considered singly and in combination. Tr. 905. In reaching that

conclusion, ALJ Scruton considered whether Plaintiff had one extreme or two

marked limitations in designated broad areas of functioning.

Plaintiff had only moderate limitations with respect to understanding,

remembering, or applying information. Plaintiff does not require reminders

to care for her personal needs, but she relies on her husband, who provided

her with a pill box, to remind her to take her medication. Tr. 234. Plaintiff

reported she has difficulty remembering spoken instructions, but was able to

follow written instructions. Tr. 237; 1368. Plaintiff reported she had some

14

difficulty understanding information, but she was able to pay her bills, count

change, handle a savings account and use a checkbook (Tr. 235-36; 1366-

67), suggesting no more than a moderate limitation. While Plaintiff’s

providers did not report significant examination abnormalities regarding

Plaintiff’s memory, they did note mild to moderately impaired insight and

judgment between 2017 and 2018. Tr. 906. Based on Plaintiff’s reported

symptoms and variable mood and affect, ALJ Scruton found that Plaintiff had

a moderate limitation in her ability to understand, remember and apply

information, concluding that she should be limited to simple, routine tasks

and short, simple instructions. Id.

ALJ Scruton also concluded that Plaintiff had mild limitations with

respect to her ability to interact with others. Plaintiff was pleasant,

cooperative and in no distress when interacting with her practitioners. Tr.

462; 776; 807-12; 839-41; 187; 1873-74. He notes that while Plaintiff

reported some difficulty being around others, she also spent time with others,

talked on the phone with her mother daily, shopped in stores, and went

outside a few times a day. Tr. 232-39; 1362-70. Because Plaintiff reports

that she keeps to herself and has variable mood and affect, ALJ Scruton

limited Plaintiff to work environments where only occasional interaction with

the public, coworkers and supervisors might be required. Tr. 906.

15

ALJ Scruton found that Plaintiff faced moderate limitations with regard

to concentrating, persisting, and maintaining pace. Id. Plaintiff reported

she watched television and read – suggesting she had some capabilities in

these areas – but she also reported that she was only able to pay attention

for a short period of time and had difficulty finishing what she started. Tr.

236 (enjoys reading and watching television); 237 (can pay attention for 20

minutes; trouble finishing what she starts); 1367 (reads and watches

television); 1368 (pays attention for 5 minutes; can finish what she starts but

takes a long time because she loses focus). Plaintiff was able to focus and

participate during both of her disability hearings. Tr. 907. ALJ Scruton

concluded that Plaintiff’s difficulty concentrating and variable mood and

affect would limit Plaintiff to simple, routine tasks and short, simple

instructions (non-complex tasks and instructions) with ordinary scheduled

breaks, while also allowing her to fall off task for up to 5% of the workday.

Despite her moderate limitation, ALJ Scruton concluded Plaintiff could

complete a normal 8-hour workday and 40-hour workweek consistent with

her RFC. Id.

ALJ Scruton found that Plaintiff was only mildly limited with respect to

self-care needs. Id. While she relies on her husband for assistance, and

she has experienced some muscle pain, numbness and balance issues, she

16

also reported being able to perform household chores (folding clothes,

cleaning up after pets) even with pain and fatigue. Tr. 234-237; 1364-68.

Restricting Plaintiff to work environments that present routine situations and

routine changes would provide for her mild limitation in adaptation, and

restricting her interaction with others would accommodate for her mild

limitation in managing herself. Tr. 907-08.

Because ALJ Scruton did not find that Plaintiff’s mental impairments

caused at least two “marked” limitations or one “extreme” limitation, the

Paragraph “B” criteria were not satisfied here. Tr. 908. Similarly, the

Paragraph “C” criteria were not satisfied because Plaintiff has the minimal

capacity to adapt to changes in her environment or changes that are not

already part of her daily life. There was no evidence that changes or

increased demands led to a deterioration of Plaintiff’s functioning; and

Plaintiff was able to function outside the home or a more restrictive setting

without substantial psychosocial supports. Id.

5. After careful consideration of the entire record, [ALJ

Scruton] finds that since July 27, 2016, the claimant has the residual

functional capacity to perform sedentary work as defined in 20 CFR

404.1567(a) and 416.967(a) except the claimant cannot crawl or climb

ladders or scaffolds. She can occasionally climb steps or stairs,

17

kneel, crouch, or stoop. She can frequently, but not constantly, reach,

handle and finger bilaterally. She can have no exposure to vibratory

surfaces. The claimant’s concentration, persistence, and maintaining

of pace is adequate for performing simple, routine tasks and

completing short, simple instructions (non-complex tasks and

instructions). She requires ordinary scheduled breaks at

approximately two-hour intervals, but may fall off task up to 5% of the

workday apart from ordinarily scheduled breaks. She can have

occasional interactions with others (public, coworkers, and

supervisors). She must work in a setting presenting routine situations

and routine changes. This fact is in dispute.

According to ALJ Scruton, Plaintiff alleged she was unable to work

primarily because of her fibromyalgia, resulting in Musculoskeletal pain,

accompanied by fatigue and low back pain. Tr. 909. Plaintiff reported back

pain radiating into her feet; numbness in her hands, arms, and feet; that she

experiences back pain after standing for 5 minutes; and, migraines, cognitive

issues, memory loss and depression. Id.; Tr. 1363; 1368 According to

Plaintiff, she last worked in 2016, and was sleeping on her breaks due to

fatigue, resulting in recurring absences. Tr. 63; 241-242. She had crying

spells once per week, along with panic attacks, which worsened with stress.

18

Tr. 78; 1369 She gained 50 pounds since she stopped working (she was

5’2” and weighed 200 pounds at the time of the first hearing). Tr. 77.

Plaintiff was evaluated for multiple sclerosis, but it was ultimately

determined by her neurologists that Plaintiff was continuing to suffer from

fibromyalgia. Tr. 64; 950-51. Plaintiff testified at hearing that she:

continued to have headaches, back pain, and difficulty holding items with

one hand; had hand shaking, and trouble typing and writing; avoided

people and mostly stayed at home; and had pain and fatigue that limited her

ability to perform household chores, requiring her to lie down for up to an

hour a day. Tr. 65-74; 958-59.

According to ALJ Scruton, Plaintiff’s medical records documented

evidence of fibromyalgia – severe musculoskeletal pain (including back pain

radiating to the lower extremities); chronic back pain; muscle weakness; and

difficultly in walking, sitting, or standing for prolonged periods of time.

Records from the Chiropractic Care Center from August 2017 confirm that

Plaintiff reported that she had fibromyalgia with constant body pain, difficulty

walking after standing or sitting too long. Tr. 826. However, the objective

portion of that same report states that at the time of the examination, Plaintiff

was within normal limits, except she experienced some pain at end range

with respect to flexion, extension, and right lateral bend. Tr. 826-27.

19

Reports from Lewis Gale Medical Center from October 12, 2017, noted

Plaintiff’s complaints of low back pain radiating to her lower extremities,

accompanied by numbness, tingling and weakness. Tr. 780. Plaintiff was

assessed with lumbar radiculopathy, with physical examination reflecting

evidence of tenderness to the lumbar spine. Tr. 781. However, Plaintiff

maintained normal range of motion in the pelvis/hips bilaterally, and 5/5

motor functioning in the bilateral extremities, except right plantar flexion 5-/5,

2/4 patellar reflect, and 2/4 ankle reflex, with steady sensory deficit on the

right S1.

Reports from 2017 and 2018 confirm that Plaintiff continued to

complain about back pain radiating to her lower extremities. Tr. 842.

However, according to ALJ Scruton, Plaintiff’s physical examinations

continued to be unremarkable, with her treatment remaining conservative,

consisting of no more than physical therapy. Tr. 910. Plaintiff’s records as

of January 2, 2018, reveal no clubbing, cyanosis, or edema. Tr. 768.

Additionally, while the records document back and lower extremity pain

which was aggravated by movement, reports from 2018 reflect improvement

to Plaintiff’s condition. Tr. 858-60; 864.

After a motor vehicle accident in May 2020, Plaintiff went to an urgent

care provider, complaining of neck pain, headache, and back pain. Tr.

20

1547. While Plaintiff reported she had 10/10 pain on a daily basis because

of her fibromyalgia, she somehow reported her pain was worse after the

accident. Id. Plaintiff had tenderness and spasm along the spine, but x-

rays of her lumbar spine were normal. Id. She was prescribed Toradol and

Flexeril. Tr. 1551.

Plaintiff also visited her neurologist following her motor vehicle

accident in May 2020. Tr. 1685-87. Her CT scan showed only mild

anterolisthesis at C4-C5, and an MRI of her cervical spine showed no

significant stenosis. Tr. 1685. Plaintiff had normal motor strength, sensation,

and reflexes. Tr. 1686. Plaintiff received trigger point injections and a

prescription for physical therapy. Id. At her six-week follow-up, Plaintiff

reported the trigger point injections only held for a couple of days, but she

felt physical therapy was helping, as was the use of muscle relaxers at night.

Tr. 1682. Physical examination showed normal strength, sensation, and

reflexes, with full range of motion with some spasms and pain in the

cervical/thoracic spine. Tr. 1683.

Plaintiff followed up with a neurologist at Wake Forest in June 2020

regarding ongoing headaches and migraines. Tr. 1828. Plaintiff reported

mild headaches “every so often” and migraines 1-2 times in the last 6

months. Id. Plaintiff reported an improved mood after talking with a

21

psychologist, and denied any side effects from the medication she was taking

for her headaches. Tr. 1833. Her headaches were under “excellent

control.” Tr. 1842.

Plaintiff established a new primary care physician for her chronic

conditions in September 2020. Tr. 1587-92. Plaintiff recounted her history of

headaches and migraines and reported her medications (Topamax and

Aimovig) helped, limiting her migraines to once per month. Tr. 1587. Plaintiff

also reported her Cymbalta and muscle relaxers helped with her

fibromyalgia. Id. Plaintiff’s physical examination was unremarkable. Tr.

1589-90. At her three-month follow-up Plaintiff reported that colder weather

and her car accident aggravated her fibromyalgia. Tr. 1583. Plaintiff had

some tenderness to palpation in her upper back, and her physician increased

her muscle relaxer in response. Tr. 1585. Plaintiff continued with her primary

care physician for treatment of her chronic conditions. Tr. 1745-85.

ALJ Scruton concluded that Plaintiff was able to perform the physical

demands of sedentary work, while she could never climb ladders or

scaffolds; never crawl; occasionally climb ramps or stairs, stoop, kneel or

crouch; and can have occasional exposure to hazards or vibration. Tr. 912.

Plaintiff reported symptoms related to major depression along with

panic attacks which she contends caused difficulty in interacting with others

22

and handling complex tasks. Id. However, ALJ Scruton does not believe

the records support the level of mental health limitations alleged by Plaintiff.

From 2017 through 2018, Plaintiff sought care from Klaire T. Mundy, Psy.D,

and expressed feelings of depression and lack of self-worth, with crying

spells, panic attacks and difficulty with interpersonal communication. Tr.

776; Tr. 807-12; 840; 1871. Despite these complaints, Plaintiff’s mental

health evaluations were all within normal limits, except for a mild or moderate

difficulty with her judgment or insight. Plaintiff’s symptoms were apparently

due to her relationship issues with her husband or her physical condition as

opposed to a long-standing mental health condition. Id.; Tr. 1830.

Even so, Plaintiff reported moderate to good progress in improving her

mental health conditions as a result of supportive counseling. There was

no evidence of a deterioration of her mental condition, with claimant reporting

throughout 2018 that her communication with her husband was improving.

Tr. 840; 1871. There was no further recommendation for treatment outside

of supportive counseling and engagement in mindful practice and breathing,

suggesting her condition was not as severe as reported. She generally

reported normal findings when treating with others, including her primary

care provider and neurologist. Tr. 1433; 1436; 1443; 1475; 1585; 1587;

1596; 1683; 1745; 1753; 1830.

23

ALJ Scruton limited Plaintiff to occasional interaction with others

because of Plaintiff’s mental impairment, including her difficulty with social

interaction, handling complex tasks, and mild to moderate difficulty with her

insight and judgment referenced in 2017/18. Tr. 912. Plaintiff’s

concentration, persistence, and maintaining pace is adequate for following

short, simple instructions and completing simple, routine tasks. Id. Plaintiff

will also be provided with ordinarily scheduled breaks, and be expected to

fall off task 5% of the workday. ALJ Scruton also found that Plaintiff should

be limited to work environments presenting routine situations and changes.

As required by SSR 12-2P, ALJ Scruton considered the treatment of

Plaintiff’s fibromyalgia, recognizing that Plaintiff experiences some pain and

discomfort. Id. However, ALJ Scruton did not believe her conditions

precluded the performance of sustained work activity. “Mild to moderate

pain or discomfort is not, by itself, incompatible with the performance of

sustained work activity.” Tr. 913. ALJ Scruton concluded that while

Plaintiff has impairments which are reasonably expected to produce the pain

and discomfort, he did not believe the medical evidence supported the

severity alleged by Plaintiff. Id.

According to ALJ Scruton, in considering Plaintiff’s longitudinal

treatment records the evidence does not document repeated manifestations

24

or reports of fatigue or other symptoms. Plaintiff reported feeling well at office

visits; described participating in activities suggestive of greater abilities than

now contended; and reported her symptoms were controlled with Cymbalta

and muscle relaxers. ALJ Scruton believes the restrictions reflected in the

RFC would accommodate Plaintiff’s impairments. Tr. 913-14.

Supporting that decision are the medical opinions offered by Plaintiff’s

treating professionals and state agency consultants. The state agency

consultants included the following professionals:

1. Nicholas Tulou, M.D. – after reviewing Plaintiff’s medical

evidence of record, Dr. Tulou opined that Plaintiff could perform light

exertion work with frequent postural activities, only occasional climbing

of ramps and stairs, no climbing of ladders, ropes or scaffolds, and no

concentrated exposure to vibration or hazards. Tr. 94-96.

2. James Buston, M.D. – after conducting his own review of

Plaintiff’s medical record he reached a similar conclusion. Tr. 107-08.

3. Joseph Duckwall, MD. – in reviewing Plaintiff’s consolidated Title

II and Title XVI claims, Dr. Duckwall opined that Plaintiff could perform

light exertional work with occasional postural activities, including

frequent stooping and climbing ramps or stairs and occasional climbing

of ladders, ropes or scaffolds. Tr. 1053-55; 1072-74.

4. Daniel Walter, Psy.D – state agency psychologist examined

Plaintiff’s medical evidence of record and opined that Plaintiff had mild

restrictions or limitations with respect to activities of daily living; social

functioning; and, concentration, persistence and pace. Tr. 93.

5. Streeja Kadakkal, M.D. – with respect to the consolidated claims,

Dr. Kadakkal opined that Plaintiff had mild restrictions in all areas. Tr.

1051; 1070-71.

25

ALJ Scruton recognizes that agency consultants are non-examining

witnesses whose opinions are not entitled to the same weight as treating or

examining physicians. Tr. 915. Nonetheless, such opinions are entitled to

some weight, especially in light of the consultant’s high level of

understanding of the SSD program and the broad scope of the review

provided. Id. ALJ Scruton found that the record confirms Plaintiff had

routine and conservative treatment for her mental and physical impairments,

consisting generally of medications and routine follow-ups. There was

noted tenderness or spasm, but Plaintiff’s gait, strength and sensation were

intact. Similarly, her mental health examinations reflected some mood and

affect issues, but most of those mental health findings were within normal

limits. ALJ Scruton afforded the opinions of the agency consultants some

weight because they relied on cited relevant portions of Plaintiff’s record and

were somewhat consistent with the overall record. Id. However, because

those consultants had no treating or examining relationship with Plaintiff,

they were not afforded more weight. Plaintiff’s testimony and regular

complaints of pain to her treating physicians led ALJ Scruton to restrict

Plaintiff to sedentary exertion with the restrictions reflected in the RFC.

An examining professional, Kathleen Fuchs, Ph.D opined that Plaintiff

had the ability to drive and manage her activities of daily living, and had the

26

“cognitive capacity to function in the workforce” but her “mood issues or

fatigue could compromise her ability to do so.” Tr. 465. ALJ Scruton afforded

some weight to Dr. Fuchs’ opinion because while she was not a treating

professional, Dr. Fuchs was a specialist and had an opportunity to thoroughly

examine Plaintiff. Tr. 915. According to Dr. Fuchs, Plaintiff: was of average

baseline intellectual abilities; struggled with consistency on a measure of

attention; showed good sustained and selective attention on an alternate

task; Plaintiff’s processing speed was within normal limits, and she

demonstrated intact abilities and language, visual construction, problem-

solving, learning, and memory; struggled with visual material, but was able

to retain and recognize what she had learned. Dr. Fuchs recognized that

Plaintiff’s mood indicated at least a mild level of depression as well as

concern about her physical symptoms. Tr. 916. ALJ Scruton believed that

Dr. Fuchs’ opinion was generally consistent with the record and was

therefore entitled to some weight. However, because ALJ Scruton found the

opinion was vague with respect to specific functional limitations, and relied

on Plaintiff’s subjective reports relating to physical impairments and

limitations (as opposed to her mental impairments and limitations), the

opinion was beyond the scope of Dr. Fuchs’ specialty. The opinion was

therefore not entitled to greater weight. Id.

27

ALJ Scruton also considered the opinion of Plaintiff’s treating

psychologist, Klaire Mundy, Psy.D. Dr. Mundy opined:

[Plaintiff] appears to be physically and psychologically

compromised to the point that at times, she is unable to

leave her home in order to attend medical/therapy

appointments. Given her ongoing struggles with her

neurological and spinal pain, it is likely that her physical

and emotional statues (sic) will be further impacted and the

likelihood of her engaging in consistent pattern of

employment is highly unlikely at this time.”

Tr. 776. ALJ Scruton afforded this opinion with little weight. Tr. 916.

While Plaintiff agreed to biweekly treatment, she only attended six

sessions over the course of six months, often cancelling her appointments

because of physical ailments and depression. Id.; 776. When she

commenced her treatment in October 2017 with Dr. Mundy, Plaintiff

identified her relational problems with her husband as an area of concern.

Tr. 812. At that time, Plaintiff was well groomed and cooperative; had a

tense motor activity; had a depressed and anxious mood, and an expansive

affect; had pressured speech, and her thought process was tangential; her

thought content was appropriate, and she was fully oriented; and she had

moderately impaired judgment and insight, but her memory was intact. Id.

At her next visit, Plaintiff’s mental health findings improved. Tr. 811.

While she had an anxious mood, she had appropriate affect and her speech

and thought process were normal; her insight and judgment also improved

28

to minimal impairment. Id. By her fourth visit, Plaintiff had a euthymic

mood and her only objective examination abnormality was a minimal

impairment in insight and judgment; she even reported positive improvement

in her relationship with her husband. Tr. 809.

ALJ Scruton concluded that Dr. Mundy’s opinion was not supported by

her examination findings and treatment, and was inconsistent with Plaintiff’s

overall record which shows minimal mental health treatment. Tr. 916-17.

Further Dr. Mundy stopped treating Plaintiff in the summer of 2018, one year

after commencement, and it does not appear that Plaintiff established care

with any other specialized mental health provider thereafter. Id. Ultimately,

he concluded that the proposed RFC is supported by the objective medical

evidence of record, Plaintiff’s daily activities, and the opinions of Dr. Fuchs

and the state agency physicians and psychologists. Tr. 917.

6. Since July 27, 2016, the claimant has been unable to perform

past relevant work (20 CFR 404.1565 and 416.965). This fact is not in

dispute.

7. Prior to the established disability onset date, the claimant

was a younger individual age 45-49. On November 19, 2020, the

claimant’s category changed to an individual closely approaching

advanced age (20 CFR 404.1563 and 416.963). This fact is not in dispute.

29

8. The Claimant has at least a high school education (20 CFR

404.1564 and 416.964). This fact is not in dispute.

9. Prior to November 19, 2020, transferability of job skills is not

material to the determination of disability because using the Medical-

Vocational Rules as a framework supports a finding that the claimant

is “not disabled” whether or not the claimant has transferable job skills.

Beginning on November 20, 2020, the claimant has not been able to

transfer job skills to other occupations (See SSR 82-41 and 20 CFR Part

404, Subpart P. This fact is not in dispute.

Because Plaintiff would be limited to unskilled work there would be no

transferrable job skills required to perform such jobs.

10. Prior to November 19, 2020, the date the claimant’s age

category changed, considering the claimant’s age, education, work

experience, and residual functional capacity, there were jobs that

existed in significant numbers in the national economy that the

claimant could have performed (20 CFR 404.1569, 404.1569a, 416.969,

and 416969a). This fact is in dispute.

Because ALJ Scruton found that Plaintiff’s ability to perform all of the

requirements of this level of work was impeded by her impairments, he had

to then determine whether jobs existed in the national economy for an

30

individual with Plaintiff’s age, education, work experience and residual

functional capacity. Tr. 918. Diana Sims, the impartial vocational expert

testified that persons with Plaintiff’s limitations and restrictions would be able

to perform the requirements of representative occupations, including:

Dictionary

Of Number

Occupational Exertional Of Jobs

Job Title Titles No. Skill Level Level Nationally

Final 713.687- Unskilled Sedentary 70,000

Assembler 018 SVP2

Finisher 631.687- Unskilled Sedentary 65,000

014 SVP2

Addresser 209.587- Unskilled Sedentary 95,000

014 SVP2

Id.; Tr. 963. ALJ Scruton found that the VE’s testimony was consistent with

the Dictionary of Occupational Titles (DOT), and that the VE’s testimony

regarding off task rates and interaction did not conflict with the DOT and that

such testimony was based on the VE’s education and expertise and was

credible. TR. 918-19. As a result, ALJ Scruton concluded that considering

Plaintiff’s age, education, work experience, and residual functional capacity,

she was capable of making a successful adjustment to other work that

existed in significant numbers in the national economy, and was therefore

not disabled prior to November 19, 2020. Tr. 919.

31

11. Beginning on November 19, 2020, the date the claimant’s

age category changed, considering the claimant’s age, education, work

experience, and residual functional capacity, there are no jobs that

exist in significant numbers in the national economy that the claimant

could perform (20 CFR 404.1560(c), 404.1566, 416.960(c), and 416.966).

This fact is not in dispute.

As required by application of Medical-Vocational Rule 201.14, a finding

of disabled was required beginning on the date of Plaintiff’s age category

change.

12. The claimant was not disabled prior to November 19, 2020,

but became disabled on that date and has continued to be disabled

through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).

The parties dispute whether Plaintiff was disabled prior to November 19,

2020.

ALJ Scruton ultimately concluded that, pursuant to sections 216(i) and

223(d) of the Social Security Act that based on Plaintiff’s application for a

period of disability and disability insurance benefits protectively tiled on

August 23, 2016, the Plaintiff was disabled beginning on November 19, 2020.

Additionally, ALJ Scruton concluded that based on Plaintiff’s application for

supplemental security income protectively filed on January 28, 2020, Plaintiff

32

was disabled under section 1614(a)(3)(A) of the Social Security Act

beginning on November 19, 2020.

V. PLAINTIFF’S CLAIMS

ALJ SCRUTON ERRED IN THE ASSESSMENT

OF PLAINTIFF’S MENTAL IMPAIRMENTS

Plaintiff contends that ALJ Scruton erred in his determination that

Plaintiff’s disability did not commence until November 19, 2020. ECF No.

17, p. 13. Plaintiff believes the substantial evidence of record establishes

plaintiff’s disability commenced as of her alleged onset date of disability, July

27, 2016. Id., Tr. 919.

Plaintiff contends that ALJ Scruton failed to properly assess the impact

of these limitations on Plaintiff’s RFC. ECF No. 17, p. 14. In fact, ALJ

Scruton failed to discuss in his decision how Plaintiff’s moderate limitations

are actually addressed or accommodated by the proposed RFC. ALJ

Scruton was required to consider Plaintiff’s medical evidence as a whole,

Dyer v. Barnhart, 395. F.3d, 1206, 1211 (11th Cir. 2005), and was required

to perform a function-by-function analysis in determining Plaintiff’s RFC,

providing a narrative discussion describing how the evidence supports each

conclusion in his decision. See SSR 96-8p. ALJ Scruton did not consider

Plaintiff’s medical evidence as a whole, and did not provide a function-by-

function analysis or a proper narrative discussion regarding his conclusion

33

that his findings account for Plaintiff’s moderate limitations. ECF No. 17, 16;

Tr. 905-08. Plaintiff argues that ALJ Scruton was required to build a logical

bridge between the evidence and his findings; instead, he recites evidence

and then states his conclusions without explaining how he arrived at his

conclusions. Id.

As a result, Plaintiff believes the Court is left to guess at how ALJ

Scruton reached his conclusion that Plaintiff’s moderate limitations are

accommodated by simple, routine tasks and short, simple instructions in a

setting with routine situations and routine changes. ALJ Scruton found

Plaintiff has severe mental impairments that result in moderate limitations,

but then does not explain how those limitations are accommodated by the

RFC findings or provide a definition as to what he means by “routine

situations” and “routine changes.” Tr. 908.

Plaintiff also contends that ALJ Scruton’s decision to only afford some

weight to the opinions of Dr. Fuchs is not supported by substantial evidence.

Dr. Fuchs opined Plaintiff’s mood issues or fatigue could interfere with

Plaintiff’s ability to sustain work activity. ALJ Scruton improperly rejected this

opinion, finding that it was based on Plaintiff’s subjective reports as opposed

to objective findings. Tr. 915-16. Plaintiff disagrees, arguing that Dr. Fuchs

tested Plaintiff and clearly stated she based her opinions upon the objective

34

testing she performed. Tr. 463.

Plaintiff also challenges ALJ Scruton’s decision to give little weight to

the opinions of Plaintiff’s treating psychologist, Klaire Mundy. Tr. 916-17.

Before the ALJ may reject a treating physician’s opinions as inconsistent with

other medical findings in the record, the ALJ is required to give specific

reasons for rejecting a treating provider’s opinion and must identify a

“genuine inconsistency.” Plaintiff claims that ALJ Scruton failed to identify

genuine inconsistencies between the opinions of Dr. Fuchs and Dr. Mundy

and the other medical findings in the record. Tr. 915-17.

In her letter of February 15, 2018, Dr. Mundy noted that Plaintiff

canceled many of her sessions due to her physical ailments in combination

with debilitating depression that left Plaintiff without the strength to leave her

home and attend her therapy sessions. Tr. 776. Dr. Mundy stated that

Plaintiff was engaged and motivated during the treatment period but opined

that Plaintiff “appears to be physically and psychologically compromised to

the point that at times, she is unable to leave her home in order to attend her

medical/therapy appointments.” Tr. 776. Dr. Mundy also opined that due to

Plaintiff’s “ongoing struggles” with her neurological and spinal pain, “it is likely

that her physical and emotional statues (sic) will be further impacted and the

likelihood of her engaging in a consistent pattern of employment is highly

35

unlikely at this time.” Tr. 776. In her treatment notes, Dr. Mundy documents

Plaintiff’s depressed/anxious mood at her therapy sessions. Tr.807; 811-12.

Plaintiff contends she had a history of mental health treatment

including counseling and medications. ECF No. 17, p. 20. ALJ Scruton also

ignores the fact that Dr. Mundy opined Plaintiff is both physically and

psychologically compromised to the point that at times, she is unable to even

leave her home to attend her medical or therapy appointments. Tr. 916-17.

Dr. Mundy clearly states that Plaintiff’s physical impairments in combination

with her debilitating depression leave her without the strength to leave her

home. Tr. 776. As was done with Dr. Fuchs’ opinion, ALJ Scruton ignores

the parts of Dr. Mundy’s opinion that contradict his findings and misstates

her opinions. ECF No. 17, p. 20; Tr. 916-917.

Simply limiting Plaintiff to simple, routine tasks and instructions with

routine situations and changes and occasional interaction with others without

further detailed explanation does not meet the requirements of SSR 96-8p

and does not adequately address Plaintiff’s moderate limitations in

understanding, remembering, or applying information, or her moderate

limitations in concentrating, persisting, or maintaining pace. According to

Plaintiff, ALJ Scruton failed to build a logical bridge between the evidence

and his RFC, and, consequently, his assessment of Plaintiff’s mental

36

impairments is not supported by substantial evidence.

ALJ SCRUTON ERRED IN THE ASSESSMENT

OF PLAINTIFF’S FIBROMYALGIA PAIN

Plaintiff contends her fibromyalgia pain and migraines affect her ability

to sit, stand, use her arms and hands, as well as her need to lie down during

the day, are subjective complaints governed by the “pain standard” outlined

in Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). ECF No. 17, p.

21. Plaintiff must show evidence of an underlying medical condition and

either objective medical evidence confirming the severity of the alleged pain

arising from that condition or that the objectively determined medical

condition is of such severity that it can be reasonably expected to give rise

to the alleged pain. Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991).

Under 20 C.F.R. §§404.1529(c), 416.929(c), once Plaintiff satisfies this pain

standard the Regulations require ALJ Scruton to then evaluate the intensity

and persistence of the symptoms to determine how they limit Plaintiff’s ability

to work. Plaintiff argues that ALJ Scruton discounted Plaintiff’s subjective

complaints of pain and fatigue based largely on the lack of objective medical

evidence substantiating her statements. Id.

Because fibromyalgia “often lacks medical or laboratory signs and is

generally diagnosed mostly on an individual’s described symptoms, the

hallmark of this condition is a lack of objective evidence.” Moore, 405 F.3d

37

at 1211. Given the subjective nature of fibromyalgia, physical examinations

typically yield normal results and any undue emphasis on the lack of

objective findings conflicts with the “well-established case law of this Circuit

and constitutes error.” Witherell v. Berryhill, 2019 WL 1397927, *4 (M.D.Fla.

Mar. 28, 2010).

Plaintiff agrees with ALJ Scruton’s finding that Plaintiff’s “medically

determinable impairments could reasonably be expected to cause the

alleged symptoms” and satisfied the first step of the symptom evaluation

framework. Tr. 913. However, Plaintiff contends ALJ Scruton improperly

discredited Plaintiff’s statements about the severity, persistence, and limiting

effects of her symptoms because he did not find them to be consistent with

the objective evidence. Tr. 909-11. By doing so, Plaintiff believes ALJ

Scruton improperly increased Plaintiff’s burden of proof by requiring her

subjective descriptions of her symptoms to be supported by objective

medical evidence and failed to consider fibromyalgia’s unique characteristics

when reviewing plaintiff’s medical records, which conflicts with the well-

established case law of this Circuit and constitutes error. Id.

Plaintiff contends that ALJ Scruton was required to make specific

findings under SSR 96-8p and conduct a function-by-function analysis. ECF

No. 17, p. 22. ALJ Scruton’s RFC assessment is very cursory and does not

38

comply with SSR 96-8p. The RFC findings placing Plaintiff at a sedentary

exertional level prior to November 19, 2020, are deficient and not supported

by substantial evidence. ALJ Scruton failed to build a logical bridge

between the evidence and his RFC findings, and his decision lacks an

explanation as to how he arrived at his conclusion Plaintiff could perform

work at the sedentary exertional level with frequent reaching, handling,

fingering, and feeling prior to November 19, 2020. Id. at 23; Tr. 908. Plaintiff

contends that the evidence of record establishes Plaintiff has been at a less

than sedentary exertional level since her alleged onset date of disability of

July 27, 2016, due to her ability to only occasionally use her arms and hands,

her inability to maintain a static work posture, her need for excessive breaks,

and her excessive rate of absenteeism.

ALJ Scruton found Plaintiff has multiple severe physical impairments

and that her “medically determinable impairments could reasonably be

expected to cause the alleged symptoms” but never made specific findings

regarding whether Plaintiff’s impairments would cause her to experience

episodes of pain necessitating breaks or absences from work and how often

these would occur and the impact on her ability to perform work related

activities. Plaintiff contends that ALJ Scruton was required to make such

specific findings under SSR 96-8p and conduct a function-by-function

39

analysis. The evidence establishes Plaintiff’s impairments cause her to

experience episodes of pain that will take her off task at an unacceptable

rate and prevent her from performing work at a substantial gainful level. ALJ

Scruton failed to properly evaluate Plaintiff’s fibromyalgia and its resulting

symptoms and used an erroneous standard to evaluate her pain.

PLAINTIFF’S ALLEGATIONS ARE SUPPORTED

BY SUBSTANTIAL EVIDENCE

Plaintiff contends that ALJ Scruton’s determination that Plaintiff’s

allegations are inconsistent with the evidence of record is itself not supported

by substantial evidence. ECF No. 17, p. 23; Tr. 913. Plaintiff believes that

ALJ Scruton failed to build a logical bridge between the evidence and his

conclusion that Plaintiff’s allegations are not fully supported.

ALJ Scruton found that because Plaintiff is able to use a checkbook,

bathe and dress herself, read and watch television, and perform a variety of

chores, including folding clothes and cleaning the litter box, plaintiff’s

allegations of disability are not fully supported. Id. at 24; Tr. 906-907; 913;

917. In making this assessment, Plaintiff suggests ALJ Scruton “cherry-

picks” the evidence and ignores evidence contradictory to his assessment.

In an October 12, 2016, function report, Plaintiff stated that when her

husband is home, he takes care of her pets so she can rest, and that she

tries to help with household chores by folding some laundry and cleaning the

40

litter box, but that her husband does all of the other household chores. Tr.

234. In a May 16, 2020, function report, Plaintiff stated she had to lie down

during the day due to pain and fatigue (Tr. 1363), that when she tries to do

any household chores she has to stop and take breaks, and that she requires

encouragement and physical help to complete the chores. Tr. 1365. Plaintiff

also stated she cannot sit or stand very long due to pain and fatigue. Tr.

1363. Plaintiff testified she has difficulty sitting or standing, has to lie down

during the day due to pain or fatigue, and has difficulty using her arms and

hands. Tr. 67; 69; 71-74; 951-52; 954-56; 957-59. Plaintiff believes the

evidence confirms that Plaintiff receives assistance from others and only

engages in limited activities on an intermittent basis. Tr. 233-34; 236; 1365.

ALJ Scruton failed to acknowledge the limited extent to which Plaintiff

performed the referenced activities and failed to explain how these limited,

intermittent activities establish Plaintiff can engage in substantial, gainful

activity on a sustained basis. Tr. 906-07; 913; 917. An ALJ’s assessment of

a claimant’s allegations is not to be given deferential weight if it is not

supported by substantial evidence. In this case, ALJ Scruton’s decision

regarding Plaintiff’s allegations is not supported by substantial evidence and

should be rejected as insufficient as he failed to identify specific portions of

the record that undermine Plaintiff’s allegations. Simon v. Comm’r, 7 F.4th

41

1094, 1110 (11th Cir. 2021). ALJ Scruton does not provide an explanation

as to how the evidence he cited actually supports his determination that the

RFC is an accurate portrayal of the most Plaintiff can do on a regular and

continuing basis. Plaintiff reiterates that the activities referenced by ALJ

Scruton are not performed on a sustained basis commiserate with

substantial gainful work activity, and, consequently, do not establish Plaintiff

can sustain a typical 40-hour workweek. In addition, the activities are either

performed intermittently and at Plaintiff’s own pace or with assistance from

others.

ALJ Scruton failed to qualify the extent to which Plaintiff performed the

activities. “Participation in everyday activities with short duration, such as

housework or fishing, disqualifies a claimant from disability.” Delgado v.

Comm’r Soc. Sec., 2021 WL 4099237, *6 (S.D. Fla. September 9, 2021)

citing Lewis, 125 F.3d at 1441; see also Flynn v. Heckler, 768 F.2d 1273,

1275 (11th Cir. 1985). The ability to cook meals, visit with family, and attend

appointments does not provide good cause to discount a claimant’s

allegations of disability. Delgado, 2021 WL 4099237 at *6.

Plaintiff argues that the limited, intermittent activities cited by ALJ

Scruton are not comparable to having the ability to perform work activities

full time and the ALJ does not explain how these activities establish Plaintiff

42

can perform substantial gainful work activities on a sustained basis over the

course of an eight-hour workday. Id. 26; Tr. 906-07; 913; 917.

VI. COMMISSIONER’S RESPONSE

SUBSTANTIAL EVIDENCE SUPPORTS THE RFC

The Commissioner contends that ALJ Scruton properly evaluated

Plaintiff’s mental health and physical impairments and properly

accommodated for them in the RFC.

1. Plaintiff’s Physical Impairments In articulating Plaintiff’s RFC

with respect to her physical impairments, ALJ Scruton analyzed the records

relating to her severe impairments of fibromyalgia, obesity, and degenerative

disc disease with radiculopathy. Tr. 903; 909-12. ALJ Scruton noted that

Plaintiff consistently complained of pain, but during an August 1, 2017,

chiropractic visit, her physical examination was largely within normal limits.

Tr. 909-10; 826-27. Similarly, although Plaintiff was assessed in October

2017 as having radiculopathy, and an examination noted tenderness on her

lumbar spine, she had a mostly normal range of motion and 5/5 motor

functioning in her extremities but some sensory deficits. Tr. 910; 781.

ALJ Scruton added that Plaintiff continued to complain of pain

throughout 2017 and 2018. Tr. 910. However, her physical examination

reports remained generally unremarkable, and her treatment remained

43

conservative and limited to chiropractic care following her November 2017

microdiscectomy in which Plaintiff was noted to be doing great afterward.

Tr. 910; 822-36; 847-49; 851-53; 858-64. Indeed, the chiropractic reports

indicated improvement on several occasions (Tr. 910; 828-32; 858-59), and

Plaintiff’s examinations remained largely normal through January 2018. Tr.

909-10; 768.

Plaintiff had a car accident in May 2020 (Tr. 910; 1547); following the

accident Plaintiff went to a neurologist with complaints of neck pain. Tr. 910;

1685. Imaging, however, showed mostly mild results, and the examination

revealed Plaintiff had normal motor strength, sensation, and reflexes, but

some reduced range of motion in the neck and spasms. Tr. 910; 1543; 1545;

1686. Subsequent examinations also routinely showed normal strength,

sensation, and reflexes and full range of motion but some spasm and pain in

Plaintiff’s spine. Tr. 910; 1683. Finally, ALJ Scruton noted that during a

June 2020 neurology visit, Plaintiff reported she was doing well with her

headaches, and she had an improved mood. Tr. 911; 1828. She likewise

reported in September 2020 that she was doing well on her medication, and

her physical examination was unremarkable. Tr. 911; 1587; 1589-90.

ALJ Scruton also discussed the opinion evidence relating to Plaintiff’s

physical impairments. Tr. 914. Dr. Tulou and Dr. Buston assessed Plaintiff

44

could perform a range of light work with frequent postural activities but only

occasional climbing of ramps and stairs and no climbing of ladders, ropes,

or scaffolds. Tr. 914; 95-96; 107-08. Likewise, Dr. Duckwall also assessed

Plaintiff could perform a range of light work. Tr. 914; 1503-05; 1072-74. ALJ

Scruton gave these opinions some weight. Tr. 915.

After discussing this evidence in detail, ALJ Scruton explained that

given the “documented evidence of back and lower extremity pain,” which

Plaintiff’s obesity exacerbated, Plaintiff could perform at most sedentary

work, with the further limitations that she could never climb ramps, stairs,

stoop, kneel, or crouch; and further limited her only to occasional exposure

to hazards and vibration. Tr. 911-12. This was sufficient to comply with SSR

96-8p. See Castel, 355 F. App’x at 263; Freeman, 220 F. App’x at 960.

2. Plaintiff’s Mental Health Plaintiff complained of depression,

panic attacks, and difficulties in interacting with others and in handling

complex tasks (Tr. 912), and ALJ Scruton found at step two that Plaintiff had

the severe impairment of depression. ECF No. 20, p. 8.; Tr. 903. However,

despite that recognition, ALJ Scruton found that the record did not support

the severe limitations she alleged. Id. Plaintiff’s treatment records with Dr.

Mundy confirm that Plaintiff’s mental status evaluation reports were largely

within normal limits. Tr. 912; 807-12; 840-41; 1871-74. In fact, the notes

45

further indicated that Plaintiff’s mental symptoms stemmed largely from

marital problems with her then husband and her physical issues, rather than

a long-standing mental health condition. Id. Plaintiff’s records documented

improvement with treatment because of counseling, and there was no

evidence of any deterioration. Tr. 912. Indeed, ALJ Scruton noted that on

January 23, 2018, and April 11, 2018, Plaintiff reported improved

communication with her husband and an improved desire to accomplish

household tasks. Tr. 912; 808; 840. There was no recommendation for

alternative treatment other than counseling and engagement in mindful

practice and relaxation breathing, which suggested her condition was not as

severe as alleged. Tr. 912; 776; 808-12; 840-41; 1871-74. These findings

were supported by Plaintiff’s other providers, who also routinely recorded

normal mental status findings. Tr. 912; 1433; 1436; 1443; 1448; 1475; 1585;

1596; 1686; 1753; 1841.

ALJ Scruton separately analyzed the opinion evidence, including the

opinions of Drs. Fuchs and Mundy (Tr. 915-17), and gave some weight to

the opinions of the state agency medical consultants, Dr. Walter and Dr.

Kadakkal, who assessed that Plaintiff had, at most, mild mental limitations.

Tr. 93; 914-15; 1051; 1070-71.

46

The Commissioner notes that even though the evidence suggested

Plaintiff’s mental impairments were not as severe as she alleged, ALJ

Scruton explained he was still giving Plaintiff the benefit of the doubt and

incorporating mental limitations into the RFC finding. ECF No. 20, p. 9; Tr.

912. ALJ Scruton stated that “considering the cumulative effects of

[Plaintiff’s] mental impairment, including her difficulty with social interaction,

handling complex tasks, and mild to moderate difficulty with her insight and

judgment in 2017/2018, the undersigned limits [Plaintiff] to occasional

interaction with others.” Id. ALJ Scruton added that restriction to

accommodate Plaintiff’s limitations with concentration, persistence, and

pace. Plaintiff would also be restricted to following short, simple instructions

and completing simple, routine tasks; would also require ordinarily scheduled

breaks, while being expected to fall off-task up to five percent of the workday;

and, would be limited to work environments presenting only routine situations

and changes Id.

Despite this extensive discussion of the evidence relating to Plaintiff’s

mental impairments and the explanation of why ALJ Scruton included

several mental limitations into the RFC finding, Plaintiff argues the ALJ failed

to comply with SSR 96-8p. ECF No. 17, pp. 14-17). Plaintiff claims that SSR

96-8p requires an even more detailed and explicit function-by-function

47

analysis of her mental impairments. Id. But the Eleventh Circuit has not

applied the demanding standard Plaintiff proposes. For instance, even where

an “ALJ could have been more specific and explicit in his findings,” the Court

found no error so long as the ALJ considered all the evidence and found it

did not support the level of disability alleged by the claimant. Freeman v.

Barnhart, 220 F. App’x 957, 960 (11th Cir. 2007). SSR 96-8p does not

independently require an ALJ to refer to every piece of evidence. See Castel

v. Comm’r of Soc. Sec., 355 F. App’x 260, 263 (11th Cir. 2009) (rejecting

claimant’s argument that ALJ did not perform a function-by-function

analysis). Here, SSR 96-8p did not require the ALJ to do anything more. ALJ

Scruton analyzed in detail the evidence relating to Plaintiff’s mental

impairments, and his careful analysis reflects he explicitly included several

limitations to account for them. See Freeman, 220 F. App’x at 960; see also

Carson v. Comm’r of Soc. Sec., 440 F. App’x 863, 864 (11th Cir. 2011)

(holding that simply because an ALJ chose not to adopt further limitations

does not mean the ALJ failed to comply with SSR 96-8p). Plaintiff’s reliance

of SSR 96-8p is thus misplaced.

Plaintiff also suggests ALJ Scruton was required to build a “logical

bridge” between the evidence and the RFC finding. ECF No. 17, 16-17; 22-

23. Once again, the law does not support this burden proposed by Plaintiff.

48

The “logical bridge” is just another way to describe the substantial evidence

standard. The Seventh Circuit held “the ‘logical bridge’ language in our

caselaw is descriptive but does not alter the applicable substantial-evidence

standard.’” See Brumbaugh v. Saul, 850 F. App’x 973, 977 (7th Cir. 2021).

Moreover, the Eleventh Circuit recently rejected an argument that an ALJ

needed to link evidence to the RFC finding and explained it only requires the

ALJ state with some clarity the reasons for the decision. Sturdivant v. Soc.

Sec. Admin., Comm’r, No. 22-13952, 2023 WL 3526609, *4 (11th Cir. May

18, 2023). Thus, all the ALJ needed to do was to support his finding with

substantial evidence, and he met that burden.

3. Opinion Evidence

The Commissioner also details how ALJ Scruton reviewed and

considered the opinion evidence offered by Plaintiff’s mental health providers

(Drs. Fuchs and Mundy). ECF No. 20, pp. 14-24. The Commissioner

contends that ALJ Scruton afforded appropriate weight to these opinions in

light of the entirety of the record of the treatment by these professionals and

the record as a whole.

Dr. Fuchs: The Commissioner discusses, in detail, Dr. Fuchs’ opinion

as reflected in a five page “Neuropsychological Evaluation” provided

following a June 27, 2017, visit. Tr. 461-65. Dr. Fuchs noted Plaintiff

49

complained of memory issues and reported shaking in her hands, a recent

fall, sometimes blurry vision, and pain behind her left eye and in her hands,

arms, and legs. Tr. 461. Plaintiff added reports of depression and poor sleep

quality. Tr. 462. Plaintiff told Dr. Fuchs that she drove herself to the

appointment; that her problems with driving were more physical than

cognitive; that she cleaned her home and took care of her own self-care; and

she enjoyed reading and spending time with her pets. Id.

Ultimately, Dr. Fuchs opined that Plaintiff’s test results suggested she

had average baseline intellectual abilities, and she exhibited no significant

cognitive deficits during the evaluation. Tr. 464. Dr. Fuchs noted that

although Plaintiff struggled somewhat with consistency on a measure of

attention, she showed good sustained and selective attention on an

alternative task. Id. Her processing speed was within normal limits, and

she demonstrated intact abilities in language, visual construction, problem-

solving, and learning and memorizing verbal materials. Id. She struggled

somewhat with visual materials, but she was able to retain and recognize

what she learned. Id. She assessed at least a mild level of depression, but

Dr. Fuchs expressed no concerns regarding her ability to drive or manage

her activities of daily living. Tr. 464-65. Dr. Fuchs ultimately concluded that

“[i]n terms of her ability to return to work, it appears that she has the cognitive

50

capacity to function in the work force. However, other factors such as mood

issues or fatigue could compromise her ability to do so.” Tr. 465.

ALJ Scruton gave Dr. Fuchs’ opinion some weight. Tr. 915-16.

Although Dr. Fuchs was not a treating physician, she was a specialist in the

area of her opinion and had the opportunity to perform a thorough

examination of Plaintiff. Tr. 915. ALJ Scruton accurately summarized Dr.

Fuchs’ findings and concluded “her opinion is well supported and is generally

consistent with the overall record” Tr. 916. The ALJ, however, explained he

did not afford more weight to the opinion because it was vague with respect

to specific functional limitations, and also relied somewhat on Plaintiff’s

physical impairments and limitations, which were beyond the scope of her

specialty. Id. Portions of her opinions were also based on Plaintiff’s

subjective complaints rather than any objective findings. Id.

The Commissioner contends that substantial evidence supports ALJ

Scruton’s finding. As a one-time examiner, Dr. Fuchs’ opinion was not

entitled to great weight. Tr. 915. See Crawford, 363 F.3d at 1160 (holding

that the opinion of a one-time examiner was not entitled to great weight);

McSwain v. Bowen, 814 F.2d 617, 619 (11th Cir. 1987) (same). Moreover,

Dr. Fuchs’ opinion that factors such as mood or fatigue could compromise

Plaintiff’s ability to work was vague in that it lacked details explaining any

51

actual functional limitations Plaintiff’s impairments might cause. Tr. 916; 464-

65. This was an appropriate reason to afford the opinion only some weight.

See, e.g., Sanders v. Soc. Sec. Admin., Comm’r, 854 F. App’x 311, 314 (11th

Cir. 2021) (holding a vague opinion is an appropriate reason to discount even

a treating physician’s opinion). Finally, Dr. Fuchs relied upon Plaintiff’s

representations of her physical limitations and depression. Id. Indeed, Dr.

Fuchs noted she allowed Plaintiff to self-report her symptoms of depression

Tr. 464. This aspect of the opinion deserved less weight because it was not

based on the record or Dr. Fuchs’ own observations. Tr. 916. See, e.g.,

Tredik v. Comm’r of Soc. Sec. Admin., 826 F. App’x 840, 847 (11th Cir. 2020)

(holding ALJ properly discounted opinion that was based primarily on the

claimant’s subjective complaints). Regardless, ALJ Scruton recognized that

because Dr. Fuchs was a specialist and provided a detailed report, the

opinion was otherwise still entitled to some weight. Tr. 915-16. See 20

C.F.R. §§ 404.1527(c)(3), (5), 416.927(c)(3), (5).

Plaintiff argues that ALJ Scruton did not address every single aspect

of Dr. Fuchs’ opinion. ECF No. 17, p. 18. Once again, however, that is not

the law. “[T]here is no rigid requirement that the ALJ specifically refer to every

piece of evidence in his decision.” Dyer v. Barnhart, 395 F.3d 1206, 1211

(11th Cir. 2005); see also Newberry v. Comm’r, Soc. Sec. Admin., 572 F.

52

App’x 671, 672 (11th Cir. 2014) (relying on Dyer in declining to fault ALJ for

not discussing a physician’s finding that claimant would need to lie down at

times throughout the workday). Furthermore, to the extent Dr. Fuchs’ opinion

was consistent with Dr. Mundy’s opinion, that consistency shows no lack of

substantial evidence because, as explained below, ALJ Scruton properly

discounted Dr. Mundy’s opinion. Accordingly, the Commissioner argues that

Plaintiff’s arguments are unavailing.

Dr. Mundy: Dr. Mundy began treating Plaintiff on August 31, 2017.

Tr. 776. Plaintiff attended six sessions with Dr. Mundy, but also canceled

several times. Plaintiff had established multiple goals she sought to achieve

through biweekly treatment. Id. Dr. Mundy noted Plaintiff was engaged,

motivated, and invested in her treatment related to depression and anxiety

when she did appear. Id.

Dr. Mundy summarized that Plaintiff experienced ongoing medical and

psychological concerns throughout her treatment that negatively impacted

her psychological status, and that she appeared to be physically and

psychologically compromised to the point that, at times, she was unable to

leave her home. Id. She added that “[g]iven her ongoing struggles with her

neurological and spinal pain, it is likely that her physical and emotional

statuses will be further impacted and the likelihood of her engaging in a

53

consistent pattern of employment is highly unlikely at this time.” Id.

ALJ Scruton gave little weight to Dr. Mundy’s opinion. Tr. 916. First,

Dr. Mundy failed to support her opinion with reference to the examination

findings and treatment notes. Tr. 916. Additionally, the opinion was

inconsistent with the overall record, which showed minimal mental health

treatment. Tr. 917. Although Plaintiff received a prescription for Cymbalta, it

appears the prescription was intended to target her fibromyalgia more than

her mental health. Id. Also, Plaintiff did not require any emergency care or

inpatient hospitalization for mental impairments, and it did not appear as if

Plaintiff established care with any providers after she stopped seeing Dr.

Mundy in the summer of 2018. Tr. 916-17.

The Commissioner contends that substantial evidence supports the

ALJ’s finding. First, Dr. Mundy’s opinion conflicted with her own records Tr.

916. See Hargress, 883 F.3d at 1305 (noting there is good cause to discount

a treating physician’s opinion when her opinion conflicts with her own

records). Before writing the February 25, 2018, letter, Dr. Mundy had only

conducted a few sessions with Plaintiff over the course of six months. Tr.

916; 776; 807-08; 810-12. Furthermore, in those sessions, ALJ Scruton

emphasized that Dr. Mundy recorded Plaintiff’s improvement. Tr. 916. For

instance, ALJ Scruton noted that in Plaintiff’s first session, Dr. Mundy

54

observed she was tense and had expansive affect, pressured speech,

tangential thought process, and a depressed and anxious mood. Tr. 916;

812. However, in her meeting the next month, Dr. Mundy recorded that

Plaintiff improved. Tr. 916; 811. Although she observed Plaintiff was anxious,

she was no longer depressed, her speech was normal, and she had an

appropriate affect. Tr. 916; 811. By Plaintiff’s fourth visit, Dr. Mundy observed

Plaintiff was in a euthymic mood and the only abnormality she noted was

that Plaintiff had minimal insight and judgment Tr. 916; 808. Plaintiff also

reported improvements in her relationship with her husband. Tr. 916; 808.

Accordingly, as the ALJ emphasized, Dr. Mundy’s records documenting

improvement after a few sessions conflicted with her opinion of severe

limitations Tr. 916-17.

Additionally, ALJ Scruton also reasonably discounted Dr. Mundy’s

opinion because it conflicted with other portions of her record. Tr. 916-17.

See Hargress, 883 F.3d at 1302 (noting that the evidence supporting a

contrary finding provides a good reason to discount even a treating

physician’s opinion). Plaintiff did not have any records documenting

longstanding treatment for mental health issues, let alone any evidence that

she required emergency care or inpatient treatment. Id. Likewise, Dr. Mundy

treated Plaintiff through counseling and techniques such as mindful practice

55

and relaxation breathing rather than more aggressive means. Tr. 776; 807-

12. While the record indicated Plaintiff took Cymbalta, it was primarily for

her fibromyalgia. Tr. 916-17; 1496-97. Plaintiff’s infrequent and conservative

treatment conflicted with Dr. Mundy’s opinion of severe limitations. See, e.g.,

Peters v. Astrue, 232 F. App’x 866, 871 (11th Cir. 2007) (providing that a

claimant’s history of conservative treatment is a valid reason to discount the

opinion of a treating physician); see also Horowitz v. Comm’r of Soc. Sec.,

688 F. App’x 855, 861-62 (11th Cir. 2017) (providing that a physician’s own

conservative treatment of the claimant can undermine any opinion by that

physician that the claimant had debilitating impairments).

Despite the effort by ALJ Scruton to explain there was good cause to

give Dr. Mundy’s opinion little weight, Plaintiff suggests the evidence

supports giving the opinion more weight. ECF No. 17, 19-20. Plaintiff’s

argument in that regard is simply an invitation to reweigh the evidence, which

would not be appropriate. See Sims v. Comm’r of Soc. Sec., 706 F. App’x

595, 604 (11th Cir. 2017) (“Under a substantial evidence standard of review,

[the claimant] 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.”). Accordingly, according to the Commissioner,

Plaintiff’s arguments show no lack of substantial evidence to support ALJ

56

Scruton’s review of the opinion testimony. Furthermore, Plaintiff has not

shown any harm by the inclusion of further limitations in the RFC finding, and

thus, her argument fails for an additional reason. See Santos v. Soc. Sec.

Admin., Comm’r, 731 F. App’x 848, 852 (11th Cir. 2018) (noting claimants

have the burden of proving their RFC); Pearsall v. Massanari, 274 F.3d 1211,

1217 (8th Cir. 2001) (“It is the claimant’s burden, and not the Social Security

Commissioner’s burden, to prove the claimant’s RFC.”).

SUBSTANTIAL EVIDENCE SUPPORTS ALJ SCRUTON’S

EVALUATION OF SUBJECTIVE COMPLAINTS

Symptom assessments are the province of the ALJ. ECF No. 20, p. 25;

Moore, 405 F.3d at 1212. If the claimant establishes she has an impairment

that could reasonably be expected to produce her alleged symptoms, then

the intensity and persistence of her symptoms and their effect on her ability

to work must be evaluated. See 20 C.F.R. §§ 404.1529(c)(1), 416.929(c)(1);

see also SSR 16-3p, 2017 WL 5180304, at *3-8 (Oct. 25, 2017) (describing

the two-step process).

According to the Commissioner, when evaluating a claimant’s

statements regarding the intensity, persistence, or limiting effects of her

symptoms, ALJs consider all the evidence, objective and subjective. ECF

No. 20, p. 25; 20 C.F.R. §§ 404.1529, 416.929. ALJs may consider the

nature of a claimant’s symptoms, the effectiveness of medication, a

57

claimant’s treatment, a claimant’s daily activities, measures a claimant takes

to relieve symptoms, and any conflicts between a claimant’s statements and

other evidence. See id. §§ 404.1529(c)(3), (4), 416.929(c)(3), (4).

Here, ALJ Scruton properly considered Plaintiff’s subjective complaints

and explained his reasoning for finding Plaintiff’s statements not wholly

supportive of a finding of disability. Tr. 908-17. Specifically, ALJ Scruton

found Plaintiff’s medically determinable impairments could reasonably be

expected to cause the alleged symptoms, but her statements concerning the

intensity, persistence, and limiting effects were not entirely consistent with

the evidence. Tr. 913. In doing so, ALJ Scruton reviewed Plaintiff’s

complaints in comparison to the evidence and highlighted the

inconsistencies Tr. 909-14. See 20 C.F.R. §§ 404.1529(c)(4), 416.929(c)(4)

(“We will consider whether there are any inconsistencies in the evidence”).

First, ALJ Scruton summarized Plaintiff’s statements. Tr. 909; §§

404.1529(a), 416.929(a) (“We will consider all your statements about your

symptoms”). ALJ Scruton detailed that Plaintiff testified she was unable to

work due to fibromyalgia and she had back pain, fatigue, and numbness in

her hands, arms, and feet. Id. She also alleged she experienced migraines,

depression, and memory and cognitive issues; had crying spells and panic

attacks; and, she reported recent weight gain. Id. ALJ Scruton noted that at

58

the second hearing Plaintiff testified to continued pain and difficulties with

using her hands. Id. She said she avoided people and mostly stayed at

home. Id.

Juxtaposed to this, ALJ Scruton detailed the medical evidence, noting

Plaintiff’s statements about the intensity, persistence, and limiting effects of

her symptoms are inconsistent with the medical evidence. Tr. 909-13. See

20 C.F.R. §§ 404.1529(c)(1), 416.929(c)(1) (noting the Commissioner will

consider all the available evidence from medical providers). As detailed

above, ALJ Scruton analyzed the evidence relating to Plaintiff’s physical

impairments and noted that even though Plaintiff consistently complained of

pain, her providers routinely observed mostly normal examination findings.

Tr. 909-10; 781; 826-27. Although Plaintiff underwent a microdiscectomy in

November 2017, her records indicated she did great afterward. Tr. 910; 847-

49; 851-53. The chiropractic reports further indicated improvement on

several occasions. Tr. 910; 828-32; 858-59. Plaintiff’s examinations

remained largely normal through January 2018. Tr. 909-10; Tr. 768.

ALJ Scruton also referenced that Plaintiff was involved in a motor

vehicle accident in May 2020. Tr. 910; 1547. Imaging, however, showed

mostly mild results, and the examination revealed Plaintiff had normal motor

strength, sensation, and reflexes, but some reduced range of motion in the

59

neck and spasms. Tr. 910; 1543; 1545; 1686. Subsequent examinations also

routinely showed normal strength, sensation, and reflexes and full range of

motion, but some spasms and pain in Plaintiff’s spine. Tr. 910; 1683. Finally,

ALJ Scruton noted Plaintiff reported in September 2020 that she was doing

well on her fibromyalgia medication, and her physical examination was

unremarkable. Tr. 911; 1587; 1589-90. Thus, in discounting Plaintiff’s

allegations of severe physical limitations, ALJ Scruton properly relied upon

the evidence in her treatment records that conflicted with her subjective

complaints. See 20 C.F.R. §§ 404.1529(c)(1), 416.929(c)(1).

ALJ Scruton also discussed the opinion evidence, including the

opinions from Drs. Tulou, Buston, and Duckwall, all of whom assessed

Plaintiff could perform a range of light work. Tr. 914; 95-96; 107-08; 1503-

05; 1072-74. See 20 C.F.R. §§ 404.1529(c)(1), 416.929(c)(1) (“We also

consider the medical opinions”); see also §§ 404.1513a(b)(1),

416.913a(b)(1) (noting the federal and state agency consultants are highly

qualified and experts in Social Security disability evaluation). These opinions

that Plaintiff could work directly conflicted with her allegations of severe

impairments. See Laurey v. Comm’r of Soc. Sec., 632 F. App’x 978, 983-84,

989 (11th Cir. 2015) (observing that state agency physician assessments

supported ALJ’s subjective complaint evaluation).

60

ALJ Scruton also considered the effectiveness of Plaintiff’s treatment,

including her reports that medication controlled her fibromyalgia symptoms.

Tr. 913; 1587-90. See 20 C.F.R. §§ 404.1529(c)(3)(iv), 416.929(c)(3)(iv)

(providing for the consideration of type, dosage, and effectiveness of

medication). Moreover, ALJ Scruton appropriately noted that Plaintiff’s

treatment was largely conservative in that it consisted mostly of medication,

chiropractic care, and physical therapy. Tr. 910; See 20 C.F.R. §§

404.1529(c)(3)(v), 416.929(c)(3)(v) (providing that a relevant factor to

consider includes the treatment the claimant receives); see also Wolfe v.

Chater, 86 F.3d 1072, 1078 (11th Cir. 1996) (holding a claimant’s

conservative treatment supported decision to discount subjective

complaints).

The Commissioner notes that despite all of this conflicting evidence,

ALJ Scruton still partially credited Plaintiff’s statements by limiting her to a

reduced range of sedentary work (with several postural and environmental

limitations), rather than light, medium, heavy, or very heavy work. ECF No.

20, p. 30; Tr. 21; 20 C.F.R. §§ 404.1567(b), 416.967(b) (listing the physical

exertional requirements); Robinson v. Acting Comm’r of Soc. Sec., 766 F.

App’x 811, 816 (11th Cir. 2019) (affirming conclusion to credit partially the

plaintiff’s testimony). ALJ Scruton explained that Plaintiff “may experience

61

some degree of pain and discomfort. However, mild to moderate pain or

discomfort is not, in itself, incompatible with the performance of sustained

work activity.” ECF No. 20, p. 30; Tr. 913. ALJ Scruton added that even

though Plaintiff “has impairments[] that are reasonably expected to produce

the type of pain or discomfort she alleges, her complaints suggest a greater

severity of symptoms than can be shown by the medical evidence.” Tr. 913.

Plaintiff suggests the ALJ erred in evaluating her subjective complaints

relating to fibromyalgia, arguing ALJ Scruton increased her burden of proof

by requiring she present evidence beyond her subjective complaints Tr. 21-

22. The Commissioner agrees that ALJ Scruton found fibromyalgia was a

severe impairment (Tr. 903, Finding No. 3), but contends that subjective

complaints of pain resulting from fibromyalgia, are not “special” and that the

regular rules for evaluating subjective complaints of pain still apply. ECF

No. 20, p. 31.

“The mere fact that the ALJ determined that [Plaintiff’s] fibromyalgia

was a ‘severe impairment,’ . . . does not mean that the ALJ was required to

attribute severe pain to her fibromyalgia.” Laurey, 632 F. App’x at 988 n.5;

see also Klaes v. Comm’r of Soc. Sec., 719 F. App’x 893, 897 (11th Cir.

2017) (stating “even if fibromyalgia explained Klaes’s pain, that alone does

not compel a finding of disability”). Thus, pursuant to SSR 12-2p, ALJ

62

Scruton correctly evaluated the intensity and persistence of the alleged pain.

Tr. 912-13; SSR 12-2p, 2012 WL 3104869, at *5 (2012) (“Evaluation of

Fibromyalgia”). Pursuant to that Ruling, if the objective medical evidence

does not substantiate a claimant’s statements, the Commissioner will

consider all the evidence in the case record, including daily activities,

medications or other treatments, the nature and frequency of attempts to

obtain treatment, and statements by other people about the symptoms. Id.

at *5. Thus, despite Plaintiff’s argument to the contrary, a claimant’s

subjective complaints regarding fibromyalgia are not simply accepted as true

automatically. Id. Moreover, ALJ Scruton explicitly stated in the decision that

“failure of the objective evidence to support the fibromyalgia symptoms is not

outcome determinative.” Tr. 913. ALJ Scruton provided substantial evidence

to support the finding that Plaintiff’s impairments were not as severe as she

alleged.

Finally, Plaintiff argues the ALJ inappropriately relied on her activities

of daily living to discount her subjective complaints of pain. ECF No. 17, pp.

24-26. ALJ Scruton made no such finding. Plaintiff may be is referencing the

ALJ’s step-two analysis of the Paragraph B criteria in making this argument

Tr. 905-08; 20 C.F.R. §§ 404.1520a(a), 416.920a(a). That analysis,

however, is separate from the later finding of her RFC and evaluation of her

63

subjective complaints. §§ 404.1520(a)(4), 416.920(a)(4) (listing the steps of

the disability evaluation process). Regardless, even if the ALJ did consider

her activities of daily living as part of the subjective complaints analysis, it

still would show no error. §§ 404.1529(c)(3)(i), 416.929(c)(3)(i) (providing for

the consideration of daily activities); Majkut v. Comm’r of Soc. Sec., 394 F.

App’x 660, 663 (11th Cir. 2010).

According to the Commissioner, “[t]he question is not . . . whether [the]

ALJ could have reasonably credited [Plaintiff’s] testimony, but whether the

ALJ was clearly wrong to discredit it.” Werner v. Comm’r of Soc. Sec., 421

F. App’x 935, 939 (11th Cir. 2011). Because ALJ Scruton clearly articulated

the several inconsistencies between Plaintiff’s testimony and the record,

substantial evidence supports his findings. See Mitchell, 771 F.3d at 782

(noting courts will not disturb a clearly articulated finding supported by

substantial evidence). ECF No. 20, pp. 32-33.

VII. Legal Analysis

ALJ Scruton provided an exhaustive and comprehensive review of

Plaintiff’s medical record. This review demonstrates that he considered the

entire record. The question for this Court is whether ALJ Scruton’s decision

is supported by substantial evidence. Because this Court finds substantial

evidence does support that decision, the Order should be affirmed.

64

ALJ SCRUTON PROPERLY EVALUATED PLAINTIFF’S

MENTAL HEALTH IMPAIRMENTS AND ACCOUNTED

FOR THEM IN THE RFC

ALJ Scruton acknowledged that Plaintiff suffers from depression, a

severe mental health impairment. Tr. 903. Neither party contests that

finding. The dispute here is whether the ALJ properly considered the impact

of that impairment in crafting Plaintiff’s RFC for the period between July 27,

2016, and November 18, 2020.

ALJ Scruton properly considered Plaintiff’s entire longitudinal record,

ultimately concluding that while Plaintiff suffered from depression, the

evidence here confirms that Plaintiff’s symptoms were not as bad as alleged

by Plaintiff, that her condition was treatable, and that she improved with care

when she sought and received the same. Supra, pp. 45-47; Tr. 916-17; 776;

807-12; 840; 1871; 1873-74. It is likely, under those circumstances, that her

mental health condition may have improved or resolved itself had she

consistently participated in her own care.

Arguably, Dr. Mundy’s opinion regarding Plaintiff’s ability to engage in

a “consistent pattern of employment,” and Dr. Fuchs’ opinion that Plaintiff’s

“mood issues or fatigue could compromise her ability” to work were not

proper opinions by a treating or examining physician which would be entitled

to controlling weight. An administrative law judge is not required to agree

65

with the statement of a medical source that a claimant is “disabled” or “unable

to work.” Walker v. Comm’r of Soc. Sec., 987 F.3d 1333, 1338-39 (11th Cir.

2021); 20 C.F.R. § 404.1527(d)(1). Whether a claimant meets the statutory

definition of disability is an administrative finding, not a medical opinion. That

administrative finding is “reserved to the Commissioner.” Id. § 404.1527(d).

And because the Commissioner has delegated his authority to make the

finding at the hearing level to an ALJ, the finding is effectively reserved to

the ALJ. Id. § 404.1546(c); see also S.S.R. 96-5p (July 2, 1996) (giving such

opinions controlling weight would "confer upon the treating source the

authority to make" disability determinations). Accordingly, Dr. Mundy’s and

Dr. Fuchs’ opinions in that regard were not entitled to be afforded any weight.

But even if such opinions were proper, ALJ Scruton had just cause for

conferring less or no weight to them because of the inconsistencies he noted

within Drs. Mundy’s and Fuchs’ own records, as well as the inconsistency

with the remainder of Plaintiff’s mental health reports from other providers.

ALJ Scruton described, in detail, the inconsistencies between Dr. Mundy’s

vague conclusion regarding Plaintiff’s inability to work – including the lack of

any noted objective abnormality in Dr. Mundy’s own records, the lack of a

history of treatment for mental health conditions, the improvements resulting

from her limited counseling, and the lack of care beyond the limited

66

counseling services provided by Dr. Mundy. Tr. 916-917; supra, pp. 45-47,

54-56. Plaintiff’s condition was treated with conservative methods and

there was improvement in that condition while she was being treated,

suggesting that Plaintiff’s condition was not disabling. See Peters, 232 F.

App’x at 871 (claimant’s history of conservative treatment is a valid reason

to discount the opinion of a treating physician); Horowitz, 688 F. App’x at

861-62 (physician’s own conservative treatment of the claimant can

undermine any opinion by that physician that the claimant had debilitating

impairments). The most striking example of this inconsistency is Plaintiff’s

contention that she was unable to pay attention for more than a minimal

amount of time – somewhere between 5 minutes and 20 minutes. Tr. 237

(can pay attention for 20 minutes; trouble finishing what she starts); 1368

(pays attention for 5 minutes). Yet, Plaintiff was able to focus and

participate during both of her disability hearings. Tr. 907. (which were

approximately 40 minutes and 60 minutes long). Those facts are

inconsistent. ALJ Scruton’s conclusion that the impacts of Plaintiff’s mental

health impairments – including her ability to concentrate and stay engaged

during the workday – were not as great as proposed by Plaintiff or as

suggested by Drs. Mundy and Fuchs. His finding in that regard is supported

by substantial evidence and should be affirmed.

67

Moreover, Plaintiff’s depression and mental health challenges

resulted, at least in part, from her situation – a challenging relationship with

her husband, financial problems, an inability to work, weight issues, and the

death of a pet – rather than from a long-standing mental health condition.

Tr. 840; 1871; 1873-74. Being sad because of a situation or circumstance is

not the same as having a disabling condition. Circumstances change, and

moods do as well. Plaintiff’s weight went up and down. Tr. 823; 911. She

divorced and remarried. Tr. 960-61. She lost and obtained new pets. Tr.

1831 (6 cats and 2 dogs). Plaintiff’s condition may have been debilitating at

times, but Plaintiff’s work-related challenges were exacerbated by matters

other than a disabling mental health condition. Merely being periodically

sad is not enough to sustain a finding of disability, especially where the

sources of that sadness were temporary issues.

Plaintiff’s records confirm that her mental health challenges were

alleviated, or at least improved, when her challenging situations changed.

Situational depression is not disabling. See Dunahoo v. Apfel, 241 F.3d

1033, 1039–40 (8th Cir. 2001) (holding that depression was situational and

not disabling because it was due to denial of food stamps and workers

compensation and because there was no evidence that it resulted in

significant functional limitations). Additionally, the failure to attend counseling

68

and a claimant's daily activities can support a conclusion that depression is

situational due to temporary circumstances. Id. at 1039. ALJ Scruton

properly considered the source of Plaintiff's depression and his decision in

this regard is supported by substantial evidence.

In any event, the RFC developed by ALJ Scruton actually gives

Plaintiff the benefit of the doubt and credits Plaintiff’s alleged mental health

restraints beyond the restrictions suggested by the state consultants. Tr.

93; 1051; 1070-71. ALJ Scruton actually increased the protections afforded

to her beyond those which would have been afforded under the diagnoses

of the state consultants who reviewed her case. Supra, pp. 14-17, 22-27.

Plaintiff’s RFC accounted for the impact of Plaintiff’s mental health

impairments, providing her with sufficient protections so that she could still

be gainfully employed at any of the identified positions despite her

complained of mental health impairments. Id. The decision of ALJ Scruton

that Plaintiff was not disabled prior to November 19, 2020 because of her

mental health impairments should be affirmed.

ALJ SCRUTON PROPERLY CONSIDERED AND ACCOUNTED

FOR PLAINTIFF’S FIBROMYALGIA IN THE RFC

At the outset, the Court notes that the Eleventh Circuit has recognized

fibromyalgia is a unique condition that is often characterized by a lack of

objective findings. See Moore, 405 F.3d at 1211 (“[Fibromyalgia]’s hallmark

69

is…a lack of objective evidence”); Horowitz, 688 F. App'x at 863) (alteration

in original) (“Fibromyalgia ‘often lacks medical or laboratory signs, and is

generally diagnosed mostly on a[n] individual's described symptoms.’ ”)

(quoting Moore, 405 F.3d at 1211). The American College of Rheumatology

has stated that fibromyalgia is both real and difficult to confirm. See generally

Frederick Wolfe, et al., The American College of Rheumatology Preliminary

Diagnostic Criteria for Fibromyalgia and Measurement of Symptom Severity,

62 Arthritis Care & Research 600 (May 2010). An extensive body of case law

pre-dates the effective date of SSR 12-2p relating to courts’ treatment of

social security disability claims based on fibromyalgia. See Johnson v.

Colvin, No. 1:14cv149-WS/CAS, 2015 U.S. Dist. LEXIS 55388, at *31-38

(N.D. Fla. Mar. 25, 2015), adopted, 2015 U.S. Dist. LEXIS 55381 (N.D. Fla.

Apr. 27, 2015), for a discussion of the legal standards in fibromyalgia cases

pre-dating SSR 12-2p and a discussion of SSR 12-2p. The following is a brief

explanation of SSR 12-2p derived from Johnson.

The Social Security Administration issued SSR 12-2p to assist

factfinders in the evaluation of fibromyalgia. SSR 12-2p, 2012 SSR LEXIS 1

at *1. Social Security Ruling 12-2p “provides that once a person is

determined to have fibromyalgia her statements about symptoms and

functional limitations are to be evaluated according to the two-step process

70

set forth in SSR 96-7p, 1996 SSR LEXIS 4.” Tully v. Colvin, 943 F. Supp. 2d

1157, 1165 (E.D. Wash. 2013); SSR 12-2p, 2012 SSR LEXIS 1 at *14.

“These policies provide that ‘[i]f 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.’” Id. (quoting SSR 12-2P, 2012 SSR LEXIS 1); see

Evaluation of Fibromyalgia, 77 Fed. Reg. 43,640 (July 25, 2012).

Even in the case of fibromyalgia, an ALJ does not err in rejecting a

medical opinion where the ALJ “adequately articulate[s] specific justification”

for discounting the opinion. Moore, 405 F.3d at 1212; see also Peters, 232

F. App'x at 872 (11th Cir. 2007) (finding that substantial evidence supported

ALJ's decision that claimant's fibromyalgia was not disabling where the ALJ

gave “specific, cogent, and credible reasons for discounting the conclusions

of [claimant's] treating physicians”). And where the ALJ's decision to discount

a medical opinion is not based on the lack of objective evidence in support

thereof, but rather on inconsistencies in the evidence, the ALJ has not erred.

See Riley v. Astrue, No. 6:11-cv-1437-ORL-JRK, 2012 WL 3522640, at *6

(M.D. Fla. Aug. 14, 2012) (rejecting claimant's argument relying on a

diagnosis of fibromyalgia and noting that fibromyalgia typically does not

result in any objective findings, where the ALJ's decision to discount the

71

treatment physician's opinion was not based on either a lack of objective

findings or on the basis of claimant's subjective complaints of pain, but rather

on the inconsistency with the other evidence of record).

ALJ Scruton was not required to merely accept the subjective

complaints from Plaintiff that she was plagued by debilitating pain and other

symptoms, which could preclude her from performing the jobs identified by

the VE. A finding that a claimant suffers from fibromyalgia does not dictate

that subjective complaints regarding the scope and existence of disabling

pain must be excepted without further inquiry. Instead, ALJ Scruton was

required to consider those complaints in light of other evidence of record and

determine whether such subjective complaints were consistent with the other

evidence of record.

In his Order, ALJ Scruton discussed the subjective complaints offered

by Plaintiff and compared them with the objective evidence. Tr. 908-14;

pages 59-61 supra. The Eleventh Circuit has stated: “credibility

determinations are the province of the ALJ.” Moore, 405 F.3d at 1212 (“The

ALJ may discount subjective complaints of pain if inconsistencies are

apparent in the evidence as a whole”). The credibility of the claimant’s

testimony must be considered in determining if the underlying medical

condition is of a severity, which can reasonably be expected to produce the

72

alleged pain. Lamb v. Bowen, 847 F.2d 698, 702 (11th Cir. 1988). Because

ALJ Scruton did not credit subjective pain testimony where such testimony

is critical, he was required to articulate specific reasons for questioning the

claimant’s credibility. See Wilson, 284 F.3d at 1225. There could be no

argument here that ALJ Scruton failed to consider the entire record. Plaintiff

does not point to any portion of the record that was ignored by ALJ Scruton.

Having reviewed that record and considered whether there was a

consistency between the record and Plaintiff’s subjective complaints, ALJ

Scruton completed the task assigned to him in this case. Pages 19-23,

supra. This Court will not – indeed cannot – merely substitute its opinion for

that of ALJ Scruton and reach a contrary decision. “A clearly articulated

finding with substantial supporting evidence in the record will not be

disturbed by a reviewing court.” Foote, 67 F.3d at 1562.

Because ALJ Scruton reviewed the entire record, and that review is

not inaccurate, Plaintiff cannot contend that the evidence at issue should be

read differently or given different weight to justify a different decision. The

question is not whether this Court would reach a different decision on the

same evidence, or whether the evidence here actually preponderates a

different result, but rather whether there is sufficient evidence here to confirm

that substantial evidence supports ALJ Scruton’s decision. Phillips, 357

73

F.3d at 1240 n.8 (“[i]f the Commissioner’s decision is supported by

substantial evidence we must affirm, even if the proof preponderates against

it”); see also Viverette v. Comm’r of Soc. Sec., 13 F.4th 1309, 1314 (11th Cir.

2021) There is no doubt that ALJ Scruton’s decision is so supported.

As a result, ALJ Scruton’s RFC conditions based on Plaintiff’s physical

impairments are supported by substantial evidence and should be affirmed.

Consistent with that RFC, there were jobs in the national economy which

Plaintiff could perform even with her severe impairments. ALJ Scruton’s

decision that Plaintiff was not disabled because of her physical impairments

before November 19, 2020, should be affirmed.

74

VII. CONCLUSION

For the reasons stated above, considering the record as a whole, the

findings of the ALJ are based upon substantial evidence and the ALJ

correctly applied the law. Accordingly, the undersigned RECOMMENDS that

the decision of the Commissioner that Plaintiff has been disabled under

sections 216(i), 223 (d) and 1614(a)(3)(A) of the Social Security Act, since

November 19, 2020, but was not disabled prior to that date, should be

AFFIRMED. Plaintiff’s Motion for Summary Judgment in Support of the

Complaint should be DENIED. The Clerk should be directed to close the file.

DONE AND ORDERED on August 12, 2024.

S/ Martin A. Fitzpatrick

MARTIN A. FITZPATRICK

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Within fourteen (14) days after being served with a copy of this

Report and Recommendation, a party may serve and file specific

written objections to these proposed findings and recommendations.

Fed. R. Civ. P. 72(b)(2). A copy of the objections shall be served upon

all other parties. A party may respond to another party’s objections

within fourteen (14) days after being served with a copy thereof. Fed.

R. Civ. P. 72(b)(2). Any different deadline that may appear on the

electronic docket is for the Court’s internal use only and does not

control. If a party fails to object to the magistrate judge’s findings or

recommendations as to any particular claim or issue contained in a

Report and Recommendation, that party waives the right to challenge

on appeal the district court’s order based on the unobjected-to factual

and legal conclusions. See 11th Cir. R. 3-1; 28 U.S.C. § 636.

75