ROBERTS v. DUDEK

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

LYRIC O. ROBERTS,

Plaintiff,

vs. Case No. 4:24-cv-366-MAF

FRANK BISIGNANO,1

Commissioner of Social Security,

Defendant.

______________________________/

MEMORANDUM OPINION AND ORDER

This Social Security case was referred to the undersigned upon

consent of the parties, ECF No. 8, by United States District Judge Mark E.

Walker. ECF No. 10. This cause is before the Court pursuant to 42 U.S.C. §

405(g) for review of the final determination of the Defendant, 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

consideration of the record, for the reasons stated below, the decision of the

Commissioner is AFFIRMED.

1 Martin J. O’Malley was the originally named Defendant as he was the Commissioner at

the time of filing. Commissioner Bisignano is automatically substituted as Defendant

pursuant to Rule 25(d).

I. Procedural History

Plaintiff filed an application for Period of Disability and DIB, and a Title

XVI application for SSI, on December 4, 2021, alleging a date of disability

beginning on October 21, 2021. Tr. 112; 232-38. Those applications were

denied initially on January 10, 2023 (Tr. 101-10), and on reconsideration on

May 3, 2023. Tr. 118-33. Plaintiff requested a hearing before an

Administrative Law Judge (ALJ) on May 18, 2023. Tr. 144-45. With the

consent of the Plaintiff, a telephonic hearing was held on January 16, 2024,

before ALJ Joshua R. Heller. Tr. 39-60. Plaintiff; her attorney, Diane

Cassaro, Esq.; and a Vocational Expert (VE), Joyce Courtright, appeared

and participated. Plaintiff (Tr. 44-55) and VE Courtright (Tr. 55-60) testified

during that hearing. See also Tr. 384-86 (VE Curriculum Vitae). ALJ Heller

entered his decision on February 20, 2024, concluding that Plaintiff was not

disabled as defined by the Social Security Act from October 21, 2021,

through the date of the decision. Tr. 11-24. The Appeals Council denied

review on July 11, 2024, rendering ALJ Heller’s decision the final decision of

the Commissioner. Tr. 1-7. That decision is ripe for review under 42 U.S.C.

§ 405(g) and 42 U.S.C. § 1383(c)(3).

2 References to the record in this case, ECF No. 7, will be to “Tr.” followed by the relevant

page number.

Through counsel, Plaintiff filed her complaint with this Court on

September 12, 2024. ECF No. 1. The Commissioner filed the administrative

record on November 8, 2024. ECF No. 7. Plaintiff filed a Memorandum in

Support of her Complaint on December 23, 2024. ECF No. 14. The

Commissioner filed a responsive memorandum in support of the

Commissioner’s position on March 17, 2025. ECF No. 19.

II. Issue Presented

In her Complaint and Memorandum in Support, Plaintiff raises the

following issues:

1. Whether the ALJ properly evaluated the medical opinions when

assessing Plaintiff’s residual functional capacity (RFC).

2. Whether the RFC is supported by substantial evidence.

3. Whether the ALJ failed to identify and resolve the apparent

conflict between the VE’s testimony and the Dictionary of

Occupational Titles (DOT), resulting in an occupation provided at

step 5 that is contrary to Plaintiff’s RFC.

ECF No. 14, p. 9. As these are the only issues presented, the Court will limit

its review of ALJ Heller’s decision 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). Affirmance is required if the

decision 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 F.2d at 1239;

accord Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005).3

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

substitute its judgment for that of the Commissioner, Id., 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).

3 “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).

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). It is an “inability to engage in any

substantial gainful activity by reason of any medically determinable physical

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

lasted or can be expected to last for a continuous period of not less than 12

months.” 42 U.S.C. § 423(d)(1)(A); 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?4

4 An RFC is the most a claimant can still do despite his or her limitations.

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

including the claimant’s description of his limitations, observations by treating and

examining physicians or other persons, and medical records. Id. The responsibility for

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 she 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

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 ‘[RFC]

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 he is able or unable to do, and

many other factors that could help the adjudicator determine the most reasonable findings

in 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).

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).

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 is charged with the duty to evaluate all the medical

opinions of record and resolve conflicts that might appear. 20 C.F.R.

§ 404.1527.

Pursuant to the revised regulations applicable to claims filed on or after

March 27, 2017, an ALJ will not “defer or give any specific evidentiary weight,

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

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

sources.” 20 CFR § 416.920c(a) (2017). The removal of the treating source

rule is intended to “eliminate confusion about a hierarchy of medical sources

and instead focus adjudication” on the evidence, as well as ensure that

courts are not reweighing the evidence under the substantial evidence

standard of review, which is intended to be a highly deferential standard.

Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed.

Reg. 5844, 5853 (Jan. 18, 2017). The Eleventh Circuit has recognized that

the “new regulatory scheme no longer requires the ALJ to either assign more

weight to medical opinions from a claimant’s treating source or explain why

good cause exists to disregard the treating source’s opinion.” Matos v.

Comm’r of Soc. Sec., No. 21-11764, 2022 WL 97144, at *4 (11th Cir. Jan.

10, 2022).

The ALJ must now determine the persuasiveness of medical opinions

by considering supportability, consistency, treatment relationship,

specialization, and other factors. 20 CFR § 416.920c(c)(1)-(c)(5) (2017).

Because supportability and consistency are the “most important” factors, the

ALJ must articulate how these factors were considered for a medical

source's opinions or prior administrative medical findings, but an ALJ is not

required to articulate how the remaining factors were considered unless

there are equally persuasive medical opinions or prior administrative medical

findings as explained in 20 CFR § 416.920c(b)(2)-(b)(3). The ALJ will

consider one or more medical opinions or prior administrative medical

findings from the same medical source together using the above factors; and

the ALJ is not required to articulate how he or she considered each opinion

or finding. 20 CFR § 416.920c(b)(1) (2017).

The Commissioner’s regulations do not require the ALJ to use any

“magic language” or follow a particular formula when addressing the

supportability and consistency factors. See 20 CFR § 416.920c(b)(2);

Thaxton v. Kijakazi, No. 1:20-cv-00616-SRW, 2022 WL 983156, at *8 (M.D.

Ala. Mar. 30, 2022) (“[T]he ALJ need not use any magic words in discussing

whether a medical opinion is supported by evidence from the medical source

himself and whether the opinion is consistent with other evidence of record.”)

(internal citations omitted). Accordingly, the ALJ does not have to address

the supportability and consistency factors through separate analyses if the

analysis addresses the substance of both factors. See Alvarez v. Comm’r of

Soc. Sec., No. 20-cv-24711-Bloom/Otazo-Reyes, 2022 WL 2092886, at *2

(S.D. Fla. June 10, 2022) (finding that the ALJ’s simultaneous consideration

of supportability and consistency factors was not improper) (citing, inter alia,

Thaxton, 2022 WL 983156, at *8); Rivera v. Kijakazi, No. 6:21-cv-93-AAS,

2022 WL 2965883, at *4 (M.D. Fla. July 27, 2022) (“The articulation

requirement is met so long as the evaluation addresses the substance of the

factors, regardless of the specific language used in the evaluation.”) (citing

Cook v. Comm’r of Soc. Sec., No. 6:20-cv-1197-RBD-DCI, 2021 WL

1565832, at *5 (M.D. Fla. Apr. 6, 2021)).

When a vocational expert is utilized at the fifth step in the sequential

evaluation process, the hypothetical questions posed must include all

impairments of the particular claimant/plaintiff. Pendley v. Heckler, 767 F.2d

1561, 1562 (11th Cir.1985). Therefore, this Court must determine whether

the ALJ failed to include any limitations resulting from Plaintiff's severe

impairments in the hypothetical question that formed the basis of the

vocational expert's testimony, and if so, whether such failure constitutes

grounds for reversal. “Hypothetical questions adequately account for a

claimant's limitations ... when the questions otherwise implicitly account for

them.” Forrester v. Comm'r of Soc. Sec., 455 F. App'x 899, 903 (11th Cir.

2012) (emphasis added). The Court may affirm the ALJ's opinion when “the

ALJ's hypothetical to the VE properly comprised, expressly or by implication,

all of [the Plaintiff's] impairments, and the VE's answer constituted

substantial evidence that [the Plaintiff] could perform work in the national

economy.” Id. If the ALJ “asked the vocational expert a hypothetical question

that failed to include or otherwise implicitly account for all of [the Plaintiff's]

impairments, the vocational expert's testimony,” would not be substantial

evidence for a disability determination. Winschel v. Comm'r of Soc. Sec., 631

F.3d 1176, 1181 (11th Cir. 2011).

IV. ALJ Heller’s Findings

ALJ Heller properly articulated and followed the five-step sequential

evaluation process for determining disability. See 20 CFR § 416.1520(a). In

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

1. The claimant meets the insured status requirements of the

Social Security Act through March 31, 2026.

This finding is not in dispute.

2. The claimant has not engaged in substantial gainful activity

since October 21, 2021, the alleged onset date (20 CFR 404.1571 et. seq.

and 416.971 et. seq).

This finding is not in dispute.

3. The claimant has the following severe impairments:

acoustic neuroma status post craniotomy with residuals (20 CFR

404.1520(c) and 416.920(c)).

This finding is not in dispute. There is no question that the above

medically determinable impairments significantly limit the ability to perform

basic work activities as required by SSR 85-28. Tr. 14.

However, ALJ Heller concluded that with respect to Plaintiff’s medically

determinable mental impairments of PTSD, depression, anxiety, and

substance abuse disorder (cannabis), those conditions, considered

singularly and collectively, do not cause more than a minimal limitation in

Plaintiff’s ability to perform basic work activities and are therefore nonsevere.

ALJ Heller stated that in each of the Paragraph B functional areas, that

Plaintiff had at most a mild limitation. Tr. 14-15. Other than alleged “memory”

issues, Plaintiff does not contend that Plaintiff’s mental health conditions

impacted her ability to perform basic mental work activities and are therefore

nonsevere.

With respect to Plaintiff’s memory issues, ALJ Heller determined that

Plaintiff could “understand, remember, and execute simple and complex

instructions, and that she could make judgments on simple and complex

work-related tasks.” Tr. 14; 456; 738. Both of her consultative psychological

examinations confirmed that Plaintiff had intact memory, including the ability

to repeat digits forward and backward, spelling words forward and backward,

and repeating the months of the year in reverse order. Tr. 14.

4. The claimant does not have 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 and 404.1526, 416.920(d), 416.925 and

416.926).

This finding is not in dispute.

5. After careful consideration of the entire record, the

undersigned finds that the claimant has the residual functional

capacity to perform sedentary work as defined in 20 CFR 404.1567(a)

and 416.967(a) except that the claimant can lift, carry, push, and pull

ten pounds occasionally and five pounds frequently. The claimant can

sit for six hours, stand for two hours, and walk for two hours. The

claimant can climb ramps and stairs occasionally. The claimant can

never climb ladders, ropes or scaffolds. The claimant can occasionally

balance, stoop, kneel, and crouch. The claimant can never crawl. The

claimant can never work at unprotected heights. The claimant can

never work around moving mechanical parts. The claimant can work

operating a motor vehicle occasionally. The claimant can perform

simple, routine tasks and engage in simple, work-related decisions,

defined as reasoning level 3 in the Dictionary of Occupational Titles.

The claimant can work only in indoor environment. The claimant

requires the use of a cane in the right, dominant hand while standing

or walking, but can still carry small objects in the left, non-dominant

hand while standing or walking.

This finding is disputed.

ALJ Heller confirmed that he considered all symptoms and the extent

to which these symptoms can reasonably be accepted as consistent with the

objective medical evidence and other evidence, based on the requirements

of 20 CFR 416.1529, 416.929, and SSR 16-3p. Tr. 22. ALJ Heller considered

the medical opinion(s) and prior administrative medical finding(s) in

accordance with the requirements of 20 CFR 416.1520c and 416.920c. Tr.

15-16.

In considering Plaintiff’s symptoms, ALJ Heller was required to follow

a two-step process in which it must first be determined whether there is an

underlying medically determinable physical or mental impairment(s) – i.e.,

an impairment(s) that can be shown by medically acceptable clinical or

laboratory diagnostic techniques – that could reasonably be expected to

produce Plaintiff’s pain or other symptoms. Tr. 16.

Second, once ALJ Heller identified an underlying physical or mental

impairment(s) that could reasonably be expected to produce Plaintiff’s pain

or other symptoms, he was required to evaluate the intensity, persistence,

and limiting effects of Plaintiff’s symptoms to determine the extent to which

they limit Plaintiff’s work-related activities. For this purpose, whenever

statements about the intensity, persistence, or functionally limiting effects of

pain or other symptoms are not substantiated by objective medical evidence,

ALJ Heller was required to consider other evidence in the record to

determine if Plaintiff’s symptoms limit the ability to do work-related activities.

Tr. 16.

According to ALJ Heller, Plaintiff has asserted multiple disabling

conditions affecting her ability to tend to personal care, particularly because

of dizzy spells. Tr. 277. While Plaintiff could prepare simple meals, shop in

stores and by phone, pay bills and handle a savings account, she had limited

ability to bend, walk, talk, hear and see. Tr. 16. In his Order, ALJ Heller noted

that at the hearing, Plaintiff primarily asserted neurofibromatosis type 2 (NF-

2), left sided facial paralysis, memory loss, vertigo, primary gland lesions,

PTSD, depression, and anxiety as disabling conditions. Id. Tr. 43-44.

Plaintiff’s unpredictable dizziness and balance issues were the reasons for

her alleged disability. Tr. 16; 46-47. Plaintiff contends she can’t do much

because of balance, dizziness, and light sensitivity issues – she can’t walk

or stand for more than fifteen to thirty minutes, can’t bend or squat, and can’t

otherwise engage. Tr. 16, 50-51. She’s limited to caring for her young child.

Id. Plaintiff does sparingly use a cane for ambulation, and takes medication

for her mental health issues (anxiety and depression), which gives her some

relief, but the medication does cause her some sleep issues. Id.; Tr. 16.

Plaintiff also contends that her memory, concentration and task completion

are also challenges on a daily basis. Tr. 52-53. She also suffers from partial

paralysis on the left side of her face, her left eye does not blink normally, and

she has deafness in her left ear. Tr. 54-55. Plaintiff uses cannabis, but does

not have a medical marijuana card. Tr. 55. ALJ Heller found that Plaintiff has

the severe impairment of acoustic neuroma status post craniotomy with

residuals. Tr. 16.

ALJ Heller specifically references all of Plaintiff’s interactions with

health care providers beginning in March 2020. Tr. 17-21. Plaintiff does not

challenge most of this analysis, so repeating it here would add little to the

discussion. Instead, Plaintiff concentrates on the examinations and reports

of David Keen, M.D., and F. Donald Kelly, Ph.D. ECF No. 14, p. 11-14. The

Court will focus its attention on ALJ Heller’s consideration of these opinions.

With respect to Dr. Keen, ALJ Heller recounted how Plaintiff had a

consultative physical examination on November 7, 2022. Tr. 19; 728-733.

During that examination, Plaintiff reported balance and disorientation issues,

troubles with concentration and memory, and that she was using a cane.

Tr. 19; 732. Dr. Keen reported that upon examination, Plaintiff’s balance and

ability to tandem walk were fair; that her grip strength was 5/5 bilaterally; she

had hearing loss in her left ear; and that the examination of her head, eyes,

neck, chest, lungs, hearing, abdomen, and back were unremarkable. Tr. 19.

Plaintiff was diagnosed with balance disorder, memory loss, deafness, tumor

of brain and dizziness/giddiness. ALJ Heller found Dr. Keen’s opinion to be

largely persuasive and contends that he incorporated those findings into the

RFC, but did not give weight to Plaintiff’s statement of her history as those

had less value than the objective findings. Tr. 22.

ALJ Heller recounted two separate encounters between Plaintiff and

Dr. Kelly. Tr. 18-19. Plaintiff had a consultative psychological examination

with Dr. Kelly on October 31, 2020. Tr. 18; 452-57. At that examination,

Plaintiff complained of anxiety and depression. She stated that she was no

longer using alcohol, but that she continued to use cannabis. Tr. 18; 455.

Plaintiff was able to repeat 6 digits forward and backward; correctly recited

the months of the year in reverse order; correctly spelled “water” and

“memory” backward; recalled 3-4 words after a delay; responded

satisfactorily to five hypothetical situations requiring the use of judgment and

problem-solving abilities; and she denied auditory or visual hallucinations.

Tr. 18; 456. Plaintiff was diagnosed with unspecified depressive disorder,

unspecified anxiety disorder, and cannabis use disorder. Tr. 18; 457.

Ultimately, Dr. Kelly concluded that Plaintiff’s symptoms were not severe

enough to prevent employment or engagement with friends for leisure

activities, and Plaintiff would understand, remember, and execute simple and

complex instructions and make judgments on simple and complex work-

related tasks. Id. Additionally, Plaintiff’s communication and social skills were

adequate for work and social environments. Id.

After her surgery, Plaintiff returned to Dr. Kelly for another consultative

psychological examination on December 4, 2022. Tr. 19; 734-40. Again,

Plaintiff repeated six digits forward and backward; recited the twelve months

in reverse order; correctly spelled “water” and “memory” backward; recalled

four words after a time delay; and responded satisfactorily to five hypothetical

situations requiring the use of judgment and problem-solving. Tr. 19; 737-38.

Plaintiff denied auditory and visual hallucinations and no DSM diagnosis was

given. Tr. 19; 738. Again, Dr. Kelly concluded that Plaintiff’s symptoms were

not sufficiently severe to prevent employment or leisure activities; that

Plaintiff could understand, remember, and execute simple and complex

instructions and make judgments on simple and complex work-related tasks.

Tr. 19; 739. Plaintiff’s communication and social skills were adequate for

effective functioning in social and work environments. Id. ALJ Heller found

Dr. Kelly’s opinions to be largely persuasive and consistent with the other

state agency mental health reviewers. Tr. 21; 63-82; 85-100.

ALJ Heller contended that he considered all the medical and mental

health evidence, subjective complaints, and treatments, and incorporated

those opinions into his RFC assessment. Tr. 22. There were limitations on

climbing, the avoidance of hazards, and limitations to a sedentary exertional

level, time limits on standing and walking, and postural limitations. Id. ALJ

Heller believed Plaintiff could perform positions subject to the articulated

RFC. Id.

6. The claimant has no past relevant work (20 CFR 416.1565

and 416.965).

This finding is not in dispute.

7. The claimant was born on June 4, 1999 and was 22 years

old, which is defined as a younger individual age 18-44, on the alleged

disability onset date (20 CFR 404.1563 and 416.963).

This finding is not in dispute.

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

404.1564 and 416.964).

This finding is not in dispute.

9. Transferability of job skills is not an issue because the

claimant does not have past relevant work (20 CFR 404.1568 and

416.968).

This finding is not in dispute.

10. Considering the claimant’s age, education, work

experience, and residual functional capacity, there are jobs that exist

in significant numbers in the national economy that the claimant can

perform (20 CFR 416.1569 and 416.1569a, 416.969, and 416.969a).

This finding is disputed.

Because ALJ Heller found that Plaintiff had limitations which eroded

Plaintiff’s ability to work, he asked the VE whether jobs existed in the national

economy for an individual with Plaintiff’s age, education, work experience,

and RFC. The VE testified that given all these factors, the individual would

still be able to perform the requirements of the following representative

occupations:

Representative DOT Strength/Skills Jobs in

Occupations National

Economy

Lens Inserter 713.687-026 Sedentary/Unskilled 27,000

Lens Block 716.687-030 Sedentary/Unskilled 23,000

Gauger

Stone Setter 735.687-034 Sedentary/Unskilled 12,000

Tr. 23; 58.

ALJ Heller found the VE testimony to be consistent with the DOT or is

within the VE’s knowledge, education, training and experience. Tr. 23.

Because positions exist in the national economy which Plaintiff could perform

even with the limitations contained in the RFC, ALJ Heller concluded that a

finding of “not disabled” was appropriate. Id.

11. The claimant has not been under a disability, as defined in

the Social Security Act, from October 21, 2021, through the date of the

decision (20 CFR 416.1520(g) and 416.920(g)).

This finding is disputed.

ALJ Heller concluded that, based on the application for Period of

Disability and DIB, and SSI protectively filed on December 4, 2021, Plaintiff

is not disabled under sections 216(i) and 223(d) and 1614(a)(3)(A) of the

Social Security Act. Id.

V. Plaintiff’s Claims

Whether the ALJ Properly Evaluated the Medical Opinions

When Assessing Plaintiff’s RFC

Plaintiff argues that ALJ Heller erred, and his Order was not supported

by substantial evidence, because it failed to acknowledge the entirety of Dr.

Keen’s report and failed to incorporate his opinions into key findings in the

RFC. ECF No. 14, p. 11. According to Plaintiff, Dr. Keen identified two

specific issues which required further evaluation and treatment: “vertigo and

instability with balance” and “issues with memory.” Id.; Tr. 733. Despite ALJ

Heller’s finding that Dr. Keen’s opinion was persuasive, ALJ Heller failed to

recognize Plaintiff’s balance issues, her trouble with reasoning, and the need

for noise limitations. ECF No. 14, p. 11. Plaintiff contends that the RFC

should have limited Plaintiff to “never” balancing; should have considered

Plaintiff’s “devastating” memory issues; should have limited Plaintiff to

unskilled work (with an SVP level 1 or 2); and should have included noise

restrictions. Id., p. 11-12. Plaintiff suggests that Dr. Keen adopted Plaintiff’s

reported symptoms of vertigo, dizzy spells, and noise sensitivity as findings

which should have impacted the RFC assessed by ALJ Heller. Plaintiff

ultimately argues that had ALJ Heller properly incorporated Dr. Keen’s

opinion into the RFC, it would have been much more restrictive. Id. at 13.

Plaintiff also contends that ALJ Heller erred in placing excessive weight

on the consultive examination of Dr. Kelly. Id. One of Dr. Kelly’s examinations

occurred over a year before Plaintiff’s craniotomy and application. Tr. 453-

457. Plaintiff believes it was wholly inappropriate to give any weight to that

opinion since it was conducted prior to Plaintiff’s surgery, which only

exacerbated her condition. ECF No. 14, p. 14. The fact that this opinion was

consistent with other medical evidence only compounded ALJ Heller’s error.

Because of these errors – not relying on Dr. Keen’s opinion regarding

balance, vertigo, memory, and noise limitations, but instead relying on Dr.

Kelly’s untimely examination – Plaintiff contends the resulting RFC was in

error and was not supported by substantial evidence. Plaintiff requests a

reversal and a remand on this issue. Id.

Whether the RFC is Supported by the Substantial Evidence

Plaintiff next contends that because of the errors discussed above, ALJ

Heller assessed an RFC that was incomplete and unsupported by

substantial evidence. ECF No. 14, p. 14. Plaintiff should have been limited

to balancing “never” as opposed to “occasionally”; her memory issues should

have limited her to unskilled work; and the ALJ should have included noise

limitations. Id. at 15. Additionally, Plaintiff believes ALJ Heller committed

further error by failing to account for Plaintiff’s vision and reaching limitations.

Id.

According to Plaintiff, her vision issues were well documented in her

medical record: she had paralysis of the left side of her face which limited

her ability to fully close her left eye; she had chronic dry and blurry eyes that

required hourly eye drops (Tr. 514; 655; 665; 691); she had spotting in her

vision caused by “punctuate epithelial erosions” (Tr. 664; 691); and she had

blepharitis, inflammation of the eye, and nystagmus in both eyes (Tr. 691-

92). Despite these documented problems, there were no restrictions in the

RFC relating to her blurry and spotty vision and chronic dry eye. ECF No.

14, p. 15. This error was only exacerbated when ALJ Heller found that

Plaintiff could perform three occupations – Stone Setter, Lens Inserter, and

Lens Block Gauger – which require extensive visual requirements. Plaintiff

contends that the RFC assessed by ALJ Heller was not supported by

substantial evidence, and as a result, none of the listed occupations were

suitable for Plaintiff because they require visual acuity that far exceeds

Plaintiff’s abilities due to her documented conditions. Id. at 16.

Plaintiff also argues that ALJ Heller failed to account for reaching

limitations in his RFC. Id. at 17. Plaintiff’s therapy notes confirm that Plaintiff

is unable to independently ambulate, shower, or reach overhead cabinets

repeatedly. Id.; Tr. 749-763. Moreover, Plaintiff’s use of a cane would

necessarily restrict her ability to simultaneously reach for items. Plaintiff

believes a remand is necessary so that such limitations can be included in

Plaintiff’s RFC.

Whether the ALJ Failed to Identify and Resolve the Apparent

Conflict Between the VE’s Testimony and the DOT, Resulting in an

Occupation Provided at Step 5 that is Contrary to Plaintiff’s RFC

Plaintiff next contends that ALJ Heller and the VE utilized an

occupation which was inconsistent with the limitations included in the RFC.

Specifically, the occupation of Lens Inserter requires the employee to “fit

lenses into plastic sunglass frames and place frames on [a] conveyor belt

that passes under heat lamps.” ECF No. 14, p. 18. Plaintiff argues that such

a moving conveyor belt would not be consistent with the restriction that

Plaintiff never work around “mechanical parts,” Tr. 15, and would be a danger

to Plaintiff given her dizziness, balance, and gait issues. Tr. 21. Thus, that

position should not have been included among the VE’s suggested

occupations, undermining the conclusion that sufficient positions existed in

the national economy to render Plaintiff not disabled. Plaintiff argues that

remand would be necessary to correct this issue.

VI. Commissioner’s Response

Substantial Evidence Supports the ALJ’s Evaluation of

the Medical Opinion Evidence

According to the Commissioner, the ALJ properly evaluated the

consultative examination report provided by Dr. Keen because Dr. Keen did

not offer a “medical opinion” as that term is understood under the applicable

regulations. Dr. Keen’s report primarily consisted of recitations of Plaintiff’s

subjective complaints and the objective results of the examination. Tr. 728-

33. While Dr. Keen5 did confirm that Plaintiff has memory loss and balance

5 The Commissioner erroneously refers to “Dr. Kelly” on pages 7-8. Based on context and

citations, the Commissioner intended to refer to Dr. Keen in those portions of the Brief.

issues, he did not provide a medical opinion regarding the impact of such

conditions on Plaintiff’s ability to work. ECF No. 19, p. 7. Instead, Dr. Keen

suggested that Plaintiff be “evaluated by a balance clinic so they can further

evaluate what is going on and possibly treat [her],” and that Plaintiff needed

a “counselor to evaluate” her memory issues. Tr. 733. The Commissioner

argues that because Dr. Keen did not address what Plaintiff could do despite

her impairments, or detail what limitations or restrictions should be placed on

her ability to work, his statements did not constitute a medical opinion, and

such statements did not need to be incorporated into the RFC. See 20 CFR

§ 404.1513(a)(2).

With respect to Plaintiff’s claim that ALJ Heller gave too much weight

to the opinion offered by Dr. Kelly, the Commissioner responds that ALJ

Heller properly considered Dr. Kelly’s two reports – one which pre-dated

Plaintiff’s craniotomy and onset date and one which occurred after that date

– in assessing Plaintiff’s RFC. ECF No. 19, p. 9; Tr. 452-57; 734-40. As found

by Dr. Kelly and ultimately concluded by ALJ Heller, (1) Plaintiff could

understand, remember, and execute simple and complex instructions; (2)

Plaintiff could make judgments on simple and complex work-related tasks;

and (3) Plaintiff’s communication skills and social skills were adequate for

effective functioning in social and work environments. Tr. 18-19; 457; 739.

ALJ Heller properly considered Dr. Kelly’s multiple opinions and incorporated

them into the RFC. See 20 CFR § 1520c(b)(1) (“when a medical source

provides multiple medical opinion(s) or prior administrative medical

finding(s), we will articulate how we considered the medical opinions . . . from

that medical source together in a single analysis”). Dr. Kelly’s prior opinion

was rendered in close proximity to Plaintiff’s onset date, was consistent with

his second opinion, and was clearly relevant to Plaintiff’s current condition.

ECF No. 19, p. 10.

The Commissioner concludes that Plaintiff is merely requesting that

this Court reweigh the evidence and shift the weight that should be given to

each of the consulting experts. The Commissioner argues that since this

Court is precluded from deciding the facts anew, reweighing the evidence,

or substituting its judgment for that of the Commissioner, such action would

be error; and because there is substantial evidence to support the ALJ’s

decision, it must be affirmed.

Substantial Evidence Supports the ALJ’s Decision Not to

Include Vision and Reaching Limitations in Plaintiff’s RFC

The Commissioner contends that ALJ Heller properly considered the

medical evidence and concluded that no vision limitations were required in

Plaintiff’s RFC. Id. at 11. According to the Commissioner, while the medical

evidence does show that Plaintiff had vision issues manifesting in “spotty

vision, blurry vision, chronic inflammation and dry eye” (ECF No. 14, p. 15),

the evidence also contains Plaintiff’s subjective reports of no eye or vision

issues (Tr. 718), as well as numerous objective examination results

confirming no eye or vision issues. Tr. 431; 440-42; 492; 495; 499; 512; 521;

522; 543; 548; 558; 643; 660; 665; 690; 718; 720; 732. The Commissioner

thus concludes that ALJ Heller’s decision not to include restrictions relating

to vision in the RFC was supported by substantial evidence, even if the

evidence may preponderate against it.

Similarly, the Commissioner argues that while there may have been

evidence supporting a reaching limitation in the RFC, there was also

evidence that supported the opposite conclusion not to include that limitation

in the RFC. ECF No. 19, p. 12. Plaintiff subjectively reported she is unable

to independently reach into overhead cabinets (Tr. 749-63; ECF No. 14, p.

17), but the objective evidence confirmed that she had a full range of motion

to reach overhead and had 5/5 strength in her upper extremities. Tr. 19; 21-

22; 512; 522; 543; 643; 651; 660; 664; 720; 729; 732. Thus, the evidence

was at best conflicting. As a result, the Commissioner argues ALJ Heller’s

decision not to include reaching limitations in the RFC was supported by

substantial evidence.

Substantial Evidence Supports the ALJ’s Step Five Analysis

The Commissioner concedes that one of the occupations – Lens

Inserter – would require Plaintiff to work around moving mechanical parts.

ECF No. 19, p. 13. Nonetheless, because the VE proposed two other

positions – Stone Setter and Lens Block Gauger – which had a combined

35,000 available positions in the national economy, any error here was

harmless. Id., p. 13-14. The Commissioner asserts that because there were

two other available positions which existed in substantial numbers in the

national economy which Plaintiff could perform despite the restrictions

contained in the RFC, Plaintiff is not disabled and ALJ Heller’s decision

should be affirmed.

VII. Legal Analysis

ALJ Heller Properly Evaluated the Medical and Mental

Health Evidence When Assessing Plaintiff’s RFC

Plaintiff contends that ALJ Heller failed to give appropriate weight to

the report provided by Dr. Keen and provided too much weight to the opinion

of Dr. Kelly. Both contentions are wrong.

First, with respect to Dr. Keen, a review of his report in fact confirms

that it did little more than provide a recitation of Plaintiff’s subjective

complaints and provide a suggestion regarding issues which should be

further examined, evaluated, or treated. Tr. 733. Noting that Plaintiff has

complained of a condition and suggesting that the matter should be the

subject of further inquiry is not the same thing as opining that a person has

a condition which requires consideration in the assessment of an RFC. As

noted by the Commissioner, such a suggestion is not a “medical opinion”

which must be considered or incorporated into an RFC. ECF No. 19 p. 7-8;

20 CFR § 404.1513(a)(2) (“a medical opinion is a statement from a medical

source about what you can still do despite your impairment(s) and whether

you have one or more impairment-related limitations or restrictions”).

Frankly, Dr. Keen offered nothing which would be relevant to the assessment

of an RFC. ALJ Heller did not error in that regard.

Plaintiff also contends that ALJ Heller gave too much weight to the

opinion of Dr. Kelly which she contends predated her craniotomy and the

onset of her disability. ECF No. 14, p. 13. While it is true that Dr. Kelly’s

October 2020 examination (Tr. 453-457) predated Plaintiff’s craniotomy and

application, his second examination in December 2022 was after Plaintiff’s

craniotomy and onset date. Tr. 734-40. This second examination and report

was consistent with the prior report and found that: (1) Plaintiff could

understand, remember, and execute simple and complex instructions; (2)

Plaintiff could make judgments on simple and complex work-related tasks;

and (3) Plaintiff’s communication skills and social skills were adequate for

effective functioning in social and work environments. Tr. 18-19; 457; 739.

ALJ Heller properly considered both opinions as part of his assessment of

Plaintiff’s RFC, and ALJ Heller did not error in that regard. There was

substantial evidence to support his findings.

Substantial Evidence Supports ALJ Heller’s

Decision Regarding Plaintiff’s RFC

Plaintiff next contends that ALJ Heller failed to include vision and

reaching limitations in the RFC because of evidence in the medical record

which would support such limitations. Despite the existence of such

evidence, substantial evidence and proper legal analysis still supports ALJ

Heller’s decision that Plaintiff was not disabled.

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 whether there is sufficient evidence here to confirm that

substantial evidence supports ALJ Heller’s decision. Phillips, 357 F.3d at

1240 n.8 (“If 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 Heller’s decision is so supported. Even if this

Court disagrees with ALJ Heller’s resolution of the factual issues and would

resolve those disputed factual issues differently, ALJ Heller’s decision must

be affirmed where, as here, it is supported by substantial evidence in the

record as a whole. See Baker o/b/o Baker v. Sullivan, 880 F.2d 319, 321

(11th Cir. 1989).

Regarding Plaintiff’s contention that ALJ Heller erred by failing to

include vision limitations in Plaintiff’s RFC, there was evidence in the medical

record to support such a limitation. ECF No. 14, p. 15. However, there was

also evidence in the record demonstrating that Plaintiff’s eye or vision issues

had improved. Tr. 431 (“extraocular muscles intact. No spontaneous or gaze-

evoked nystagmus”); 440 (“reliability was good. Automated visual field

device used was Zeiss. Threshold was 24-2. Findings include non-specific

defects, normal observations”); 495 (“normal”); 514 (Plaintiff “is not having

major issues with eye pain, dry eye, excess tearing, or visual loss.

Occasionally the vision is blurry in the left eye. She does not have to use

drops or ointment very often. She does not have a significant balance

complaint”); 522 (“pupils are equal, round and reactive to light”); 543 (“pupils

are equal, round and reactive to light”); 548 (“extraocular muscles intact. No

spontaneous or gaze-evoked nystagmus”); 643 (Plaintiff “states that her left

eye closure is 99% back to normal”); 647 (“there has been ongoing

improvement – now able to close her eye without any intervention”); 660

(“extraocular movements intact”); 718 (“no eye pain, no blurred vision”); 732

(“Vision (without glasses): OU:20/13; OD 20/15; OS 20/20-1”). Plaintiff’s

vision was improving over time, and by September 2022, Plaintiff’s left eye

had improved and she was reporting “no eye pain or blurred vision.” Tr. 718.

In fact, by November 2022 her vision was noted as 20/20. Tr. 732. Thus,

there was evidence in the record which would support ALJ Heller’s decision

not to include a vision limitation in the RFC.

Similarly, while Plaintiff is correct in pointing out that there was

subjective evidence in the record to support a “reaching” limitation (ECF No.

14, p. 17), there is ample objective evidence to the contrary which would

weigh against including such a limitation. As noted by the Commissioner,

Plaintiff had a full range of motion to reach overhead and 5/5 strength in her

upper extremities. Tr. 19; 21-22; 512 (5/5 strength, flexion, abduction and

extension); 522 (“normal range of motion”); 543 (“normal range of motion”);

643 (5/5 strength, flexion, abduction and extension); 651 (5/5 strength,

flexion, abduction and extension); 720 (range of motion, stability, and muscle

strength normal). While Plaintiff may have reported limitations in reaching,

those were not confirmed by the objective medical evidence. Moreover, the

fact that Plaintiff was using a cane to ambulate would only impact her ability

to reach while she ambulates – not once she reaches her destination and is

called on to work. At best, there was a conflict in the evidence regarding

Plaintiff’s ability to reach. Under such circumstances, there would be

substantial evidence to support ALJ Heller’s decision to exclude any such

limitation in Plaintiff’s RFC. There was no error in that regard.

Plaintiff Can Perform Jobs Which Exist in Significant

Numbers in the National Economy

The Commissioner concedes that one of the positions identified by the

VE and ALJ Heller – Lens Inserter – would not be appropriate because it

would involve a moving conveyor belt, and Plaintiff was specifically

prohibited by her RFC from working around “moving mechanical parts.” Tr.

15. As a result, 27,000 out of the 62,000 identified jobs would be eliminated.

“Whether there are a significant number of jobs a claimant is able to

perform with [her] limitations is a question of fact to be determined by a

judicial officer [i.e., the ALJ].” Viverette, 13 F. 4th at 1318 (quoting Martinez

v. Heckler, 807 F.2d 771, 775 (9th Cir. 1986)). “It is not appropriate for [this]

court to decide, in the first instance, whether a relatively low number qualifies

as a ‘significant number’ of jobs.” Kimes v. Comm'r, SSA, 817 F. App’x 654,

659 (10th Cir. 2020) (emphasis added). Generally, “judicial line-drawing in

this context is inappropriate, [because] the issue of numerical significance

entails many fact-specific considerations requiring individualized evaluation”

and because “the evaluation ‘should ultimately be left to the ALJ’s common

sense in weighing the statutory language as applied to a particular claimant’s

factual situation.’” Viverette, 13 F.4th 1309 at 1318 (quoting Allen v. Barnhart,

357 F.3d 1140, 1146 (10th Cir. 2004)).

“That is not to say that under no circumstances would a specific

number of jobs be considered per se significant for step five purposes.”

Ledford v. Comm'r of Soc. Sec., No. 8:20-CV-2516-JSM-SPF, 2022 WL

2195001, at *4 (M.D. Fla. June 1, 2022), report and recommendation

adopted, No. 8:20-CV-2516-JSM-SPF, 2022 WL 2193158 (M.D. Fla. June

17, 2022); see also Allen, 357 F.3d at 1146 (noting that harmless error “might

have been open to us here had the number of available jobs identified by the

VE not been one hundred but considerably greater”). The Eleventh Circuit

has “never held that a minimum numerical count of jobs must be identified in

order to constitute work that ‘exists in significant numbers’ under the statute

and regulations.” Atha v. Comm'r, Soc. Sec. Admin., 616 F. App’x 931, 934

(11th Cir. 2015). Indeed, some courts have concluded that remand is

unnecessary when the number of non-conflicted jobs in the national

economy is greater than 100,000, because any such error would be

harmless. Denmark v. Kijakazi, 2022 WL 831903, at *7 (M.D. Fla. March 21,

2022) (finding harmless error when ALJ’s decision was still supported by the

availability of 551,000 non-conflicted jobs in the national economy);

Rodriguez v. Comm'r Soc. Sec. Admin., 2022 WL 4364506, at *5 (M.D. Fla.

Sept. 21, 2022) (finding harmless error when ALJ's decision was still

supported by the availability of 220,000 non-conflicted jobs in the national

economy); accord Anderson v. Colvin, 514 F. App’x 756, 764 (10th Cir. 2013)

(finding harmless error because there were approximately 650,000 non-

conflicted jobs available in the national economy); Carpenter v. Acting

Comm’r of Soc. Sec., No. 5:23-CV-00037-KDB, 2023 WL 7726706, at *5

(W.D.N.C. Nov. 15, 2023) (concluding that it was harmless error when

134,000 non-conflicted positions existed in the national economy).

In this case, 43.5% of the jobs identified by the VE were affected by

the conflict. This left approximately 35,000 jobs in the national economy that

Plaintiff could perform. Tr. 23. This uncontested figure is less than the

number of jobs in Denmark, Rodriguez, Anderson, and Carpenter, but more

than the jobs in Altha (23,800). Other courts have considered an even lower

number of jobs in the national economy to be a significant number. See

Brooks v. Barnhart, 133 F. App’x 669, 671 (11th Cir. 2005) (holding that 840

jobs was significant). As the Atha court held, although the ALJ bears the

burden to identify jobs in the national economy that a plaintiff can perform,

“the ALJ need not identify a certain number of jobs for its decision to be

supported by substantial evidence.” Id. at 934. Indeed, ALJ Heller specifically

ruled that “[e]ach of the jobs, considered singularly or collectively, would be

a substantial number within the national economy.” Tr. 23. ALJ Heller thus

considered whether there would be sufficient positions in the national

economy if less than all the proposed positions were available and concluded

that there would be a significant number of jobs in the national economy even

if only one of the positions remained.

The question that remains is whether eliminating 43.5% of the

identified jobs in the national economy is a sufficient reason to require a

remand. None of the cases reviewing the issue identified in Viverette focus

on what percentage of the identified jobs was eliminated by the alleged error.

Thus, this Court will not focus on that issue. Instead, as has been determined

by the courts who have examined this issue, this Court concludes that the

existence of 35,000 available jobs in the national economy is sufficient,

substantial evidence to support ALJ Heller’s decision, rendering any error

made by including the 27,000 Lens Setter jobs in the step five analysis

harmless. There is no basis for a remand on this issue. The remaining two

positions provide sufficient jobs in which Plaintiff could serve despite the

limitations of her RFC.

VIII. Conclusion

Considering the record as a whole, the findings of the ALJ are based

upon substantial evidence in the record and the ALJ correctly applied the

law. Accordingly, the decision of the Commissioner to deny Plaintiff’s

application for Social Security Disability Benefits is AFFIRMED. The Clerk is

DIRECTED to enter judgment for the Commissioner.

DONE AND ORDERED on September 29, 2025.

s/ Martin A. Fitzpatrick

MARTIN A. FITZPATRICK

UNITED STATES MAGISTRATE JUDGE