Turner v. Kijakazi (CONSENT)

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

SOUTHERN DIVISION

PATRICIA TURNER, )

)

Plaintiff, )

)

v. ) CASE NO. 1:19-CV-774-KFP

)

KILOLO KIJAKAZI,1 )

Acting Commissioner of Social Security, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

Plaintiff Patricia Turner filed a Title II application for a period of disability and

disability insurance benefits on September 27, 2016, alleging disability beginning on April

17, 2016. R. 222. The claim was denied at the initial administrative level on December 19,

2016. R. 167. Plaintiff then filed a written request for hearing before an Administrative

Law Judge on January 3, 2017. R. 173. A hearing was held on June 4, 2018. R. 114.

Following the hearing, the ALJ issued an unfavorable decision, and the Appeals Council

denied Plaintiff’s request for review on October 17, 2019. R. 1–7. The ALJ’s decision

consequently became the final decision of the Commissioner of Social Security. See

Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). This case is now before the Court

for judicial review of that decision under 42 U.S.C. § 405(g). After careful scrutiny of the

1 Kilolo Kijakazi is now the Acting Commission of Social Security and is automatically substituted as a

party under Rule 25(d) of the Federal Rules of Civil Procedure. See also 42 U.S.C. § 405(g) (providing that

an action survives regardless of any change in the person occupying the office of Commissioner of Social

Security).

record and the parties’ briefs, the Court AFFIRMS the Commissioner’s decision for the

reasons set forth below.

I. STANDARD OF REVIEW

The Court’s review of the Commissioner’s decision is a limited one. The Court’s

sole function is to determine whether the ALJ’s opinion is supported by substantial

evidence and whether the proper legal standards were applied. See Jones v. Apfel, 190 F.3d

1224, 1228 (11th Cir. 1999); Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir.

1983). “The Social Security Act mandates that ‘findings of the Secretary as to any fact, if

supported by substantial evidence, shall be conclusive.’” Foote v. Chater, 67 F.3d 1553,

1560 (11th Cir. 1995) (quoting 42 U.S.C. §405(g)). Thus, this Court must find the

Commissioner’s decision conclusive if it is supported by substantial evidence. Graham v.

Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997). Substantial evidence is more than a scintilla—

the evidence must do more than merely create a suspicion of the existence of a fact and

must include relevant evidence that a reasonable person would accept as adequate to

support the conclusion. Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997) (citing

Richardson v. Perales, 402 U.S. 389 (1971)); Foote, 67 F.3d at 1560 (citing Walden v.

Schweiker, 672 F.2d 835, 838 (11th Cir. 1982)).

If the Commissioner’s decision is supported by substantial evidence, the district

court will affirm, even if the court would have reached a contrary result as finder of fact

and even if the evidence preponderates against the Commissioner’s findings. Ellison v.

Barnhart, 355 F.3d 1272, 1275 (11th Cir. 2003); Edwards v. Sullivan, 937 F.2d 580, 584

n.3 (11th Cir. 1991) (quoting MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986)).

The Court must view the evidence as a whole, taking into account evidence favorable as

well as unfavorable to the decision. Foote, 67 F.3d at 1560 (citing Chester, 792 F.2d at

131). The Court “may not decide facts anew, reweigh the evidence, or substitute [its]

judgment for that of the [Commissioner],” but rather it “must defer to the Commissioner’s

decision if it is supported by substantial evidence.” Miles v. Chater, 84 F.3d 1397, 1400

(11th Cir. 1996) (quoting Bloodsworth, 703 F.2d at 1239).

The Court will also reverse a Commissioner’s decision on plenary review if the

decision applies incorrect law or if the decision fails to provide the Court with sufficient

reasoning to determine that the Commissioner properly applied the law. Keeton v. Dep’t of

Health and Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994) (citing Cornelius v.

Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991)). There is no presumption that the

Commissioner’s conclusions of law are valid. Id.; Brown v. Sullivan, 921 F.2d 1233, 1236

(11th Cir. 1991) (quoting MacGregor, 786 F.2d at 1053).

II. STATUTORY AND REGULATORY FRAMEWORK

The Social Security Act’s general Disability Insurance Benefits (“DIB”) program

provides income to individuals who are forced into involuntary, premature retirement,

provided they are both insured and disabled, regardless of indigence. See 42 U.S.C. §

423(a). The Social Security Act’s Supplemental Security Income (“SSI”) is a separate and

distinct program. SSI is a general public assistance measure providing an additional

resource to the aged, blind, and disabled to assure that their income does not fall below the

poverty line. Eligibility for SSI is based on proof of indigence and disability. See 42 U.S.C.

§§ 1382(a), 1382c(a)(3)(A)–(C). However, despite the fact that they are separate programs,

the law and regulations governing a claim for DIB and a claim for SSI are identical;

therefore, claims for DIB and SSI are treated identically for the purpose of determining

whether a claimant is disabled. Patterson v. Bowen, 799 F.2d 1455, 1456 n.1 (11th Cir.

1986).

Applicants under DIB and SSI must prove “disability” within the meaning of the

Social Security Act, which defines disability in virtually identical language for both

programs. See 42 U.S.C. §§ 423(d), 1382c(a)(3), 1382c(a)(3)(G); 20 C.F.R. §§

404.1505(a), 416.905(a). A person is entitled to disability benefits when the person is

unable to do the following:

[E]ngage in any substantial gainful activity by reason of any medically

determinable physical or mental impairment which can be expected to result

in death or which has lasted or can be expected to last for a continuous period

of not less than 12 months.

42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A “physical or mental impairment” is one

resulting from anatomical, physiological, or psychological abnormalities that are

demonstrable by medically acceptable clinical and laboratory diagnostic techniques. 42

U.S.C. §§ 423(d)(3), 1382c(a)(3)(D).

The Commissioner of Social Security employs a five-step, sequential evaluation

process to determine if a claimant is entitled to benefits:

(1) Is the person currently unemployed?

(2) Is the person’s impairment(s) severe?

(3) Does the person’s impairment(s) meet or equal one of the specific

impairments set forth in Listing of Impairments in Appendix I of 20

C.F.R. Pt. 404, Subpt. P?

(4) Is the person unable to perform his or her former occupation?

(5) Is the person unable to perform any other work within the economy?

McDaniel v. Bowen, a (11th Cir. 1986); 20 C.F.R. §§ 404.1520, 416.920 (2010). An

affirmative answer to any of the above questions leads either to the next question or, on

Steps 3 and 5, to a finding of disability. A negative answer to any question except Step

Three leads to a determination of “not disabled.” McDaniel, 800 F.2d at 1030; 20 C.F.R. §

416.920(a)–(f).

The claimant carries the burden of proof through Step Four. See Phillips v.

Barnhart, 357 F.3d 1232, 1237–39 (11th Cir. 2004). Claimants establish a prima facie case

of qualifying for disability once they meet their burden of proof from Step One through

Step Four. At Step Five, the burden shifts to the Commissioner, who must then show there

are a significant number of jobs in the national economy the claimant can perform. Id.

To complete Steps 4 and 5, the ALJ must first determine the claimant’s Residual

Functional Capacity (“RFC”). Id. at 1238–39. RFC is what the claimant is still able to do

despite his impairments and is based on all relevant medical and other evidence. Id. It also

can contain both exertional and non-exertional limitations. Id. at 1242–43. At Step Five,

the ALJ considers the claimant’s RFC, age, education, and work experience to determine

if there are jobs available in the national economy the claimant can perform. Id. at 1239.

To do this, the ALJ can either use the Medical Vocational Guidelines (“grids”) or hear

testimony from a vocational expert (“VE”). Id. at 1239–40.

The grids allow the ALJ to consider factors such as age, confinement to sedentary

or light work, inability to speak English, educational deficiencies, and lack of job

experience. Each factor can independently limit the number of jobs realistically available

to an individual. Id. at 1240. Combinations of these factors yield a statutorily required

finding of “disabled” or “not disabled.” Id.

III. ADMINISTRATIVE PROCEEDINGS

Plaintiff was 46 years old at the time of the ALJ’s decision. R. 225. She lives in

Ozark, Alabama, with her 27-year-old daughter and is unmarried. R. 118. She completed

eighth grade, but she had no further schooling. R. 241. She claims she has been unable to

work since April 17, 2016, due to multiple conditions, including vitamin B1 deficiency,

ataxia, sleep apnea, dizziness, and chronic fatigue. R. 240. Plaintiff previously worked as

a mental health aide, home health aide, retail sales clerk, and stock clerk. R. 142–43, 241.

Following an administrative hearing and employing the five-step process, the ALJ

found at Step One that Plaintiff had not engaged in substantial gainful activity since April

17, 2016, the alleged onset date. R. 98. At Step 2, the ALJ found that Plaintiff suffers from

the following severe impairments under 20 C.F.R. § 416.920(c): degenerative disc disease,

fibromyalgia, central sensitization syndrome, Sjogren’s syndrome, and obesity. R. 98. At

Step Three, the ALJ determined that none of Plaintiff’s impairments or combination of

impairments meets or medically equals the severity of an impairment listed in the

applicable regulations. R. 100. The ALJ then articulated Plaintiff’s RFC as follows:

[T]he claimant has the residual functional capacity to perform light work as

defined in 20 CFR 404.1567(b) except: never climbing ladders, ropes,

scaffolds; occasionally climbing ramps/stairs, balancing, stooping, kneeling,

crouching, crawling; frequently pushing, pulling, reaching, handling,

fingering, and feeling; occasional exposure to extreme cold, wetness,

humidity, dust, fumes, odors, and gases; no exposure to unprotected heights,

hazardous machinery or vibration.

R. 100–101. The ALJ stated that she considered all symptoms and the extent to which those

symptoms could reasonably be accepted as consistent with the objective medical evidence

and other evidence based on 20 C.F.R. 404.1529 and SSR 16-3p. R. 101. The ALJ stated

that she also considered opinion evidence in accordance with 20 C.F.R. 404.1527. R. 101.

At Step Four, having consulted with a VE, the ALJ concluded that Plaintiff has engaged in

past relevant work as a retail salesclerk and that Plaintiff is capable of performing this past

relevant work as actually or generally performed. R. 104. At Step Five, after considering

Plaintiff’s age, education, work experience, and RFC, the ALJ also found that there are

other jobs that exist in significant numbers in the national economy that Plaintiff can

perform. R. 105. Based upon the VE’s testimony, the ALJ determined that Plaintiff could

perform the jobs of production assembler, cafeteria attendant, and garment bagger. R. 105.

Accordingly, the ALJ concluded that Plaintiff “has not been under a disability . . . from

April 17, 2016, through the date of this decision” and denied her claim. R. 93, 105.

IV. DISCUSSION

Plaintiff raises four issues on appeal: (1) whether the ALJ erred by failing to

properly develop the record pursuant to 20 C.F.R. § 404.1512; (2) whether the ALJ failed

to identify or resolve an apparent conflict between the VE’s testimony and the manipulative

demands of a retail sales clerk; (3) whether the ALJ applied an incorrect standard of law in

evaluating Plaintiff’s conditions at Step 2; and (4) whether the ALJ erred as a matter of law

when she failed to properly evaluate Plaintiff’s testimony of pain or other subjective

symptoms in light of her severe fibromyalgia and central sensitization syndrome. Doc. 17

at 1.

A. The ALJ’s Development of the Record

Plaintiff’s first argument on appeal is that the ALJ erred by failing to properly

develop the record pursuant to 20 C.F.R. § 404.1512. Citing 20 C.F.R. § 404.1512(b),

Plaintiff argues that the ALJ has a duty to develop the complete medical history of a

claimant from at least twelve months prior to the filing of an application. Doc. 17 at 8.

Plaintiff asserts that the ALJ committed legal error by failing to obtain all of Plaintiff’s

medical records “from at least the period of September 28, 2015 through September 28,

2016.”2 Id. Specifically, Plaintiff points to the absence of records regarding Plaintiff’s

treatment by Dr. Gregory Gibson of the Southern Clinic from January 2016 through August

2016, and Plaintiff contends this absence prevented the ALJ from considering the full

record. Id.

“Social Security proceedings are inquisitorial rather than adversarial,” and the ALJ

has a duty to “investigate the facts and develop the arguments both for and against granting

benefits.” Sims v. Apfel, 530 U.S. 103, 110–111 (2000) (citing Richardson v. Perales, 402

U.S. 389 (1971)). In this investigation, the ALJ has a basic duty to develop a full and fair

record. Ellison, 355 F.3d at 1276. This basic duty exists even if the claimant is represented

by counsel. Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir. 1981). “Nevertheless, the

claimant bears the burden of proving that he is disabled, and, consequently, he is

responsible for producing evidence in support of his claim.” Ellison, 355 F.3d at 1276.

2 It appears that Plaintiff filed her application on September 27, 2016, rather than September 28, 2016. See

R. 222. However, the precise filing date is inconsequential to the Court’s analysis and decision.

Necessity for remand is determined by “whether the record reveals evidentiary gaps

which result in unfairness or clear prejudice.” Brown v. Shalala, 44 F.3d 931, 935 (11th

Cir. 1995) (per curiam) (internal quotations omitted). There must be a showing of clear

prejudice before a case will be remanded to the ALJ for further development of the record.

Id. Plaintiff bears the burden of demonstrating clear prejudice. See Huffman v. Colvin, 2013

WL 1282311, at *4 (N.D. Ala. Mar. 21, 2013) (“Not only is the ultimate evidentiary burden

placed on Plaintiff, but Plaintiff must also make a ‘clear showing of prejudice before it is

found that the claimant’s right to due process has been violated to such a degree that the

case must be remanded.’”). Where clear prejudice is not present, the failure of an ALJ to

develop the record amounts to harmless error. Bellew v. Acting Comm’r of Soc. Sec., 605

F. App’x 917, 932 (11th Cir. 2015).

Plaintiff correctly notes that this case is distinguishable from the likes of Ellison,

355 F.3d 1272, 1276; Cowart, 662 F.2d 731, 735; Graham, 129 F.3d 1420, 1423; and

Brown, 44 F.3d 931, 935, as the current issue does not involve medical records outside the

twelve-month window, third party testimony, or Plaintiff’s representation. Doc. 22 at 2.

The absent records fall within the relevant twelve-month period before Plaintiff filed her

application on September 27, 2016 (R. 225), and Plaintiff was represented by a non-

attorney at the time of hearing (R. 166). Moreover, Plaintiff notified the ALJ that she was

treated by Dr. Gibson at the Southern Clinic. R. 242. The transcript contained pharmacy

records confirming Dr. Gibson’s prescription of medication for Plaintiff, records listing Dr.

Gibson as Plaintiff’s primary care physician, and evidence that the Southern Clinic records

were requested and “received” on November 17, 2016. R. 295, 304, 250. Despite this, the

Southern Clinic records remain absent from the transcript even after the Commissioner

filed the Supplemental Record.

However, even if the Court were to assume this absence amounts to a failure of the

ALJ’s duty to develop the record, whether the error requires remand is another question.

This case is similar to Bellew, cited above, because the absence of the Southern Clinic

records amounts, at most, to harmless error. There was sufficient medical evidence in the

existing record for the ALJ to make an informed decision, and Plaintiff has alleged no facts

demonstrating clear prejudice. As in Bellew, Plaintiff never contends the additional records

provide evidence establishing that her impairments meet or equal listing-level severity. In

her initial brief, Plaintiff alleged only that the ALJ did not have a full record to consider.

Doc. 17 at 8. In her reply brief, Plaintiff contends that prejudice arises from the absence of

previously submitted evidence and that the Southern Clinic records support Plaintiff’s

credibility regarding her subjective experiences. Doc. 22 at 3. These contentions fail to

demonstrate clear prejudice in light of what the record already contained, as the Southern

Clinic records provide little additional evidence for consideration.

Although Plaintiff contends that these records would bolster her credibility by

supporting her testimony and complaints as well as reflect that she had sought treatment

that was ineffective in alleviating her symptoms, the inclusion of the Southern Clinic

records does not provide clinical, diagnostic, or objective findings demonstrating

additional functional limitations. Rather, the Southern Clinic records show that Dr.

Gibson’s only abnormal findings were obesity and mild to moderate sleep apnea. Doc. 17-

1 at 8, 13, 15–18, 20, 23, 27, 29–31, 35, 38, 43. Like Bellew, the record in this case already

contains significant evidence of Plaintiff’s subjective experiences and complaints,

including records from February 2016 to April 2018, well beyond the twelve-month period

prior to the application. The record also already contains the Southeast Alabama Medical

Center records in which Dr. Gibson treated Plaintiff from January 15 through April 27,

2016, as well as the CNC Neurology records from April 4 through May 25, 2016, which

provide records of Plaintiff’s test results and treatment overlapping the period covered by

the absent Southern Clinic records. R. 302–353. The inclusion of these records provides

ample evidence of the early history of Plaintiff’s treatment.

Further, despite Plaintiff’s contention that the Southern Clinic records justify her

rehab no-show the ALJ used to discredit Plaintiff, these records instead reflect that, after

undergoing a single round of Epley’s maneuver at vestibular rehab, Plaintiff did not return

because she experienced no impact. Doc. 17-1 at 21. These records contain no discussion

with the care provider regarding Plaintiff’s decision to discontinue rehab—it only displays

Plaintiff’s subjective experience and subsequent choice. Therefore, because there was

substantial medical evidence in the existing record to allow the ALJ to make an informed

decision without the gap evidence, Plaintiff has not shown that the ALJ’s alleged failure to

develop the record resulted in unfairness or clear prejudice. Accordingly, remand is not

warranted on this issue.

B. Conflict with The Vocational Expert’s Testimony

Plaintiff’s second argument is that the ALJ failed to identify and resolve an apparent

conflict between the testimony of the VE and the information in the Dictionary of

Occupational Titles (“DOT”) during Step Four of the sequential evaluation. The VE

testified at the hearing, in response to a hypothetical question that included functional

limitations consistent with Plaintiff’s RFC, that the job of a retail sales clerk would be

available to an individual with Plaintiff’s limitations. R. 143. The DOT lists the job of a

retail sales clerk as requiring the ability to “constantly” reach, handle, and finger. DOT §

211.462-014. The ALJ found that Plaintiff is limited to “frequently” “reaching, handling,

fingering, and feeling.” R. 100. The ALJ then found that Plaintiff could return to her past

work as a retail sales clerk based on the VE’s testimony. R. 104. Plaintiff contends that the

ALJ failed to comply with an affirmative obligation to identify and resolve the apparent

conflict between the VE’s testimony and the DOT listing regarding whether a retail sales

clerk must “constantly” or “frequently” reach, handle, finger, and feel. Doc. 17 at 10.

Plaintiff argues that this failure requires remand. Id. Notably, however, Plaintiff does not

contest the ALJ’s Step Five finding that there are other jobs existing in significant numbers

in the national economy that Plaintiff can perform.

“In order for a vocational expert’s testimony to constitute substantial evidence, the

ALJ must pose a hypothetical question which comprises all of the claimant’s impairments.”

Wilson v. Barnhart, 284 F.3d 1219, 1227 (11th Cir. 2002). SSR 00-4p explains that, before

relying on VE testimony, ALJs must address any conflicts “between occupational evidence

provided by VEs . . . and information in the [DOT] . . . and [e]xplain in the determination

or decision how any conflict that has been identified was resolved.” SSR 00-4p (2000). In

Washington v. Comm’r of Soc. Sec., 906 F.3d 1353 (11th Cir. 2018), the Eleventh Circuit

concluded that, pursuant to SSR 00-4p and the overall regulatory scheme governing

disability claims:

ALJs within the SSA have an affirmative duty to identify apparent conflicts

between the testimony of a [VE] and the DOT and resolve them. This duty

requires more of the ALJ than simply asking the VE whether his testimony

is consistent with the DOT. Once the conflict has been identified, the Ruling

requires the ALJ to offer a reasonable explanation for the discrepancy, and

detail in his decision how he has resolved the conflict. The failure to

discharge this duty means that the ALJ’s decision, when based on the

contradicted VE testimony, is not supported by substantial evidence.

906 F.3d at 1356. In that case, the Eleventh Circuit concluded that the ALJ failed to comply

with its SSR 00-4p duty because it did not notice or resolve a “glaring conflict” between

the VE’s testimony and the DOT. Id. at 1366. It ruled that the ALJ erred in that respect

because, in failing to address the conflict, there was no record upon which to conclude that

the ALJ adequately resolved the conflict. Id. Accordingly, the panel reversed and remanded

for further development of the record. Id. at 1366–67.

In the present case, Plaintiff is correct that the VE’s testimony that a hypothetical

person with Plaintiff’s limitations could perform work as a retail sales clerk conflicted with

the DOT description of that job. Plaintiff is also correct that the ALJ failed to explicitly

address or resolve this conflict in her decision. However, here, unlike in Washington, the

ALJ’s failure to explicitly address and resolve this conflict was harmless because the ALJ

subsequently asked the VE a follow-up hypothetical question regarding whether an

individual with Plaintiff’s limitations, which included frequent instead of constant hand

movements, could perform other work in the national economy. R. 143. In response, the

VE testified that an individual with those limitations could perform the work of production

assembler, cafeteria attendant, and garment bagger and that more than 490,000 of these

positions exist in the national economy. R. 143–44. Thus, the ALJ remedied any Step Four

error by pursuing a second hypothetical and obtaining substantial evidence, in the form of

VE testimony, for her Step Five finding. See Zoslow v. Comm’r of Soc. Sec., 778 F. App’x

762, 765–66 (11th Cir. 2019); Bristol v. Colvin, No. 1:11cv959, 2013 WL 2147476, at *3

(M.D. Ala. May 15, 2013) (“[T]he ALJ did error at Step 4, in that he determined that

Plaintiff’s RFC would limit her to unskilled light work . . . and then determined that

Plaintiff could perform past work as a cashier [which is semi-skilled work]. However, the

error is harmless because the ALJ went on to Step 5 and identified light, unskilled jobs

within the national economy that Plaintiff could perform.”) (citing Delia v. Comm’r of Soc.

Sec., 433 F. App’x 885, 887 (11th Cir. 2011) (finding harmless error where ALJ considered

limitations at later stages of analysis)).

As noted above, Plaintiff does not contest the ALJ’s Step Five finding regarding

Plaintiff’s ability to perform other jobs in the national economy. Therefore, while the ALJ

may have erred at Step Four, this error was rendered harmless when the ALJ identified

other jobs in the national economy consistent with Plaintiff’s RFC that Plaintiff can

perform. Accordingly, remand is not warranted on this issue.

C. The ALJ’s Step Two Analysis

Plaintiff’s third contention is that the ALJ held Plaintiff to a higher standard than

the law requires for the duration requirement at Step 2 of the sequential evaluation. Plaintiff

argues that the ALJ required Plaintiff to show that her impairments had already lasted a

continuous twelve-month period and did not consider whether these impairments were

expected to last for a twelve-month period. Doc. 17 at 11. This argument seems to hinge

entirely on the ALJ’s phrasing of her Step Two findings, which stated: “[Plaintiff’s]

conditions did not represent, either singly or in combination, more than a minimal

limitation in the ability to perform basic work activities for a continuous period of 12

months. Therefore, they are non-severe.” R. 99. This sentence is found at the end of a

paragraph in which the ALJ discusses the objective medical evidence of Plaintiff’s chronic

pain syndrome, sleep apnea, spinal cord disease, memory impairment, vision problems,

and tremor. R. 99. In the preceding paragraphs, the ALJ found that Plaintiff had the severe

impairments of degenerative disc disease, fibromyalgia, central sensitization syndrome,

Sjogren’s syndrome, and obesity. R. 98–99.

It is Plaintiff’s responsibility to prove that she has a severe impairment. See Bowen

v. Yuckert, 482 U.S. 137, 146 n.5 (1987). An impairment is severe if it significantly affects

a claimant’s ability to perform work-related activities, irrespective of age, education, and

work experience. See 20 C.F.R. §§ 404.1520(c), 404.1521(a); Bridges v. Bowen, 815 F.2d

622, 625 (11th Cir. 1987). Work-related activities include physical functions such as

standing, walking, lifting, and sitting, as well as capacities for hearing and seeing, use of

judgment, and understanding, remembering, and carrying out instructions. See 20 C.F.R. §

404.1521(b).

The finding of any severe impairment, based on either a single impairment or a

combination of impairments, is enough to satisfy Step 2 because, once the ALJ proceeds

beyond Step 2, he is required to consider the claimant’s entire medical condition, including

impairments the ALJ determined were not severe. Jamison v. Bowen, 814 F.2d 585, 588

(11th Cir. 1987); see also Phillips v. Barnhart, 357 F.3d 1232, 1238 (11th Cir. 2004). The

ALJ must make specific and well-articulated findings as to the effect of the combination

of all the claimant’s impairments. Bowen v. Heckler, 748 F.2d 629, 635 (11th Cir. 1984).

However, a clear statement that the ALJ considered the combined effects of Plaintiff’s

impairments is adequate. See Jones v. Dep’t of Health & Human Servs., 941 F.2d 1529,

1533 (11th Cir. 1991).

Here, substantial evidence supports the ALJ’s finding that Plaintiff’s chronic pain

syndrome, sleep apnea, spinal cord disease, memory impairment, vision problems, and

tremor were not severe. Specifically, the ALJ discussed the records of Dr. Hassan

Kesserwani, Neurology Associates, and Pulmonary Associates, as well as the results of a

sleep test and spine imaging, all of which indicate only minimal or mild limitations. R. 99.

While Plaintiff contends the results of the ALJ’s analysis implicate only the period

preceding the hearing, it is clear that the ALJ did not find significant concern in any of

Plaintiff’s records concerning her chronic pain syndrome, sleep apnea, spinal cord disease,

memory impairment, vision problems, or tremor. A de novo review of the legal principles

guiding the ALJ’s decision still requires a review of the resulting decision only to

determine whether it is supported by substantial evidence. Moore v. Barnhart, 405 F.3d

1208, 1211 (11th Cir. 2005). Upon review here, the Court finds that, regardless of how the

ALJ phrased her findings, she applied the correct legal standard. She determined that

Plaintiff’s conditions did not and do not inhibit her ability to perform basic work activities

for a continuous period of 12 months (in either the past or the future), and substantial

evidence supports that determination.

Furthermore, because the ALJ found that Plaintiff had other impairments that were

severe at Step 2 of her analysis, she subsequently had to consider Plaintiff’s entire medical

condition, including non-severe impairments, in the following steps. Jamison, 814 F.2d at

588. The ALJ stated that she considered the combination effect of Plaintiff’s impairments

in each of her Step Three and Four analyses. R. 100–101. Therefore, any error in the ALJ’s

determination of Plaintiff’s chronic pain syndrome, sleep apnea, spinal cord disease,

memory impairment, vision problems, and tremor was harmless. Burgin v. Comm’r of Soc.

Sec., 420 F. App’x 901, 903 (11th Cir. 2011) (“Even assuming the ALJ erred when he

concluded [plaintiff’s] edema, sleep apnea, and obesity were not severe impairments, that

error was harmless because the ALJ considered all of his impairments in combination at

later steps in the evaluation process.”) (citation omitted).

Additionally, in her initial brief, Plaintiff neither argues nor provides evidence that

her chronic pain syndrome, sleep apnea, spinal cord disease, memory impairment, vision

problems, or tremor has lasted or could be expected to last at least 12 months or is severe.

See generally Doc. 17. This absence undermines Plaintiff’s argument that she has a severe

impairment, a responsibility she carries. Bowen, 482 U.S. at 146 n.5. Plaintiff attempts to

partially remedy this void in her reply brief by pointing to the potential severity of her sleep

apnea.3 Doc. 22 at 4, 6. However, the sleep study Plaintiff cites for her SaO2 levels resulted

in a diagnosis of mild to moderate obstructive sleep apnea that only mildly decreased

Plaintiff’s sleep efficiency. R. 552. This diagnosis serves as additional substantial evidence

3 Plaintiff asserts that the ALJ erred in failing to consider listing 3.02(C)(3) regarding Plaintiff’s SaO2

levels. Doc. 22 at 6. While that listing does allow for consideration of sleep-related breathing disorder

complications, listing 3.02(C)(3) requires numerous other findings that Plaintiff fails to address in her

briefing. See 20 C.F.R Part 404, Subpart P, Appendix 1, Sec. 3.02(C)(3). By not addressing the numerous

other elements of listing 3.02(C)(3), Plaintiff has failed to make an argument that her condition meets or

equals the full criteria of the listing. See Teresa S. v. Saul, No. 1:20cv3053, 2021 U.S. Dist. LEXIS 74968,

at *26, n.1 (E.D. Wash. Apr. 19, 2021).

supporting the ALJ’s finding. Therefore, because the ALJ properly considered all of

Plaintiff’s conditions in subsequent steps of her analysis despite finding certain conditions

were not severe, and because Plaintiff failed to prove or even argue that these conditions

were severe, remand is not warranted on this issue.

D. The ALJ’s Evaluation of Plaintiff’s Testimony of Pain

Finally, Plaintiff argues that the ALJ applied improper selectivity when considering

the evidence and failed to provide explicit reasons for this selectivity. Specifically, Plaintiff

argues the ALJ erred as a matter of law in her Step Four and Five analyses by finding that

Plaintiff’s statements were not consistent with the medical evidence and other evidence in

the record. Doc. 17 at 12. Plaintiff argues that this finding is not supported by substantial

evidence and that the ALJ did not give Plaintiff’s testimony of pain proper consideration.

Id. at 13–14.

To establish a disability based on testimony of pain and other symptoms, Plaintiff

must demonstrate: (1) evidence of an underlying medical condition and (2) either (a)

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

objectively determined medical condition can reasonably be expected to give rise to the

claimed pain. Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002); 20 C.F.R. §

404.1529(a). Once the ALJ identifies an underlying impairment that could reasonably be

expected to produce the claimant’s pain or symptoms, the ALJ must evaluate the intensity,

persistence, and functionally limiting effects of the symptoms to determine the extent to

which they affect the claimant’s capacity for work. 20 C.F.R. § 404.1529(c)(1).

Whether a medical condition can reasonably be expected to give rise to the pain

allegations is a question of fact subject to the substantial evidence standard of review. Lamb

v. Bowen, 847 F.2d 698, 702 (11th Cir. 1988). A claimant’s subjective testimony supported

by medical evidence that satisfies the pain standard is itself sufficient to support a finding

of disability. Foote v. Chater, 67 F.3d 1553, 1561 (11th Cir. 1995). It is within the province

of the ALJ to evaluate a Plaintiff’s subjective complaint of symptoms. Id. at 1562.

Importantly, an ALJ is not required to accept a claimant’s subjective allegations of pain or

symptoms. Wilson, 284 F.3d at 1225–26. If the ALJ rejects a claimant’s testimony

concerning pain or other symptoms, the ALJ must “articulate explicit and adequate

reasons” for discrediting the allegations. Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir.

2005). “Failure to articulate the reasons for discrediting subjective testimony requires, as a

matter of law, that the testimony be accepted as true.” Wilson, 284 F.3d at 1225 (citing

Cannon v. Bowen, 858 F.2d 1541, 1545 (11th Cir. 1988)). “A clearly articulated credibility

finding with substantial supporting evidence in the record will not be disturbed by a

reviewing court.” Foote, 67 F.3d at 1562.

In this case, the ALJ’s decision demonstrates that she properly applied the correct

pain standard, and substantial evidence supports her decision. The ALJ found that

Plaintiff’s medically determinable impairments could reasonably be expected to cause her

alleged symptoms but that her statements concerning the intensity, persistence, and limiting

effects of her symptoms were not entirely consistent with the medical evidence of record,

and the ALJ provided specific reasons in support of this finding. R. 101–04. Specifically,

the ALJ found that a plethora of diagnostic testing did not support Plaintiff’s complaints

of disabling symptoms. R. 104. MRIs of Plaintiff’s brain, thoracic spine, and cervical spine

from April 2016, the month she alleges she became disabled, found nothing abnormal. R.

101, 304, 308. A February 2016 CT scan of Plaintiff’s head was unremarkable, as was a

second CT scan from August 2016, although the second scan showed a partially empty

sella and question of prominence of the optic nerve sheaths. R. 101–02, 325, 360–61. An

autonomic reflex test and EMG in November 2016 found nothing abnormal. R. 102, 375–

80. X-rays of Plaintiff’s lumbar spine from November 2016 showed mild multilevel disc

spacing, slight retrolisthesis, and lower lumbar facet arthrosis. R. 102, 381. A nerve

conduction study in November 2016 found nothing abnormal. R. 379–80. In August 2017,

another nerve conduction study, MRI of the brain, and autonomic reflex testing were all

normal. R 102, 402.

The ALJ also considered the physical examination findings by Plaintiff’s doctors.

R. 101–04. Plaintiff sought treatment at CNC Neurology in April 2016 for dizziness,

numbness, and unsteadiness. R. 345. Dr. Kesserwani found no abnormalities as to

Plaintiff’s cranial nerves, her gait was ataxic and unsteady, she had minimal postural tremor

at most, her motor strength was 5/5, and her sensation was intact. R. 345. A physical

examination by Dr. Han at UAB Medicine in August 2016 for Plaintiff’s complaints of

vertigo and gait difficulty found Plaintiff was not in acute distress, had normal range of

motion with no musculoskeletal tenderness, had normal sensation, and had a cautious and

unsteady gait but no ataxia, normal muscle tone, normal muscle strength throughout, and

neurologically intact cranial nerves. R. 357.

Plaintiff’s initial November 2016 physical examination by Dr. Villamizar at the

Mayo Clinic Jacksonville found she was not in acute distress; she had normal range of

motion with multiple tender points; she had normal strength, motor function, gait, and

sensation; and she had no focal deficits. R. 373–74. She returned the following day, and,

after a comprehensive head and neck examination, Dr. Young reported no abnormal

findings. R. 371. In January 2018, Plaintiff was seen at Neurology Associates for

complaints of balance, vision, and walking problems, stiffness, and numbness. R. 369. On

examination, Dr. Malik found Plaintiff could ambulate independently, her recent and

remote memory were intact, her cranial nerves were normal, she had increased muscle tone

with normal bulk and strength, her motor strength was 5/5 bilaterally in upper and lower

extremities, her coordination was normal with no tremors, her sensation was intact, and her

gait and stance were normal. R. 398–99.

The ALJ then noted that Plaintiff’s treatment primarily consisted of medication,

physical therapy, and a recommendation for an assistive device for ambulation. R. 101–04.

The ALJ found that Plaintiff refused an assistive device in the form of a cane for her gait.

R. 101, 103, 317, 320. See Brown v. Comm’r of Soc. Sec., 440 F. App’x 863, 865 (11th Cir.

2011) (ALJ properly considered plaintiff’s decision not to take prescribed medication when

assessing severity of alleged pain). Finally, the ALJ observed that Plaintiff was discharged

from physical therapy after she failed to show up for several appointments. R. 104, 313–

15, 328–29. Id.; see also Ogranaja v. Comm’r of Soc. Sec., 186 F. App’x 848, 851 (11th

Cir. 2006) (gaps in treatment history supported the ALJ’s denial of benefits).

Plaintiff contends the ALJ improperly selected evidence on which to rely. Doc. 17

at 13–14. However, the ALJ stated that she considered the entire record in her evaluations

of Steps 3–5, and Plaintiff has failed to identify evidence that undermines the ALJ’s

conclusion. R. 100. Plaintiff’s contention that the ALJ stated evidence from Neurology

Associates was dated February 2016 when it was actually from 2018 is, at most, harmless

error, as the evidence was still from the relevant period—that is, after Plaintiff’s alleged

disability onset date and before the ALJ issued her decision—and would warrant

consideration in the ALJ’s analysis. Doc. 17 at 14; R. 391–400. In these records, Plaintiff’s

subjective complaints fail to outweigh the objective medical evidence that a review of her

systems was unremarkable. 20 C.F.R. § 404.1529(c)(4). Further, Plaintiff’s contention that

the result of the neurological exam was “remarkable for difficulty in balance, muscle ache,

vision” is undermined by the rest of the exams returning normal results and the results of

other exams regarding Plaintiff’s gait. R. 393, 357, 373–74, 420, 402, 398–99. As noted

above, where it is clear the ALJ considered the record evidence, the Court will not reweigh

that evidence or substitute its judgment for that of the Commissioner. See Miles, 84 F.3d

at 1400.

Plaintiff next contends that the CT scan of her brain from February 2016, which had

no abnormal findings, occurred prior to her alleged onset date in April 2016. Doc. 17 at 14.

In comparison, Plaintiff states that a CT scan from August 2016 shows “partially empty

sella and question of prominence of the optic nerve sheaths.” Id. This argument is

unavailing because the ALJ’s decision indicates she knew the first CT scan was from

February 2016, and the ALJ also considered and discussed the August 2016 CT scan. R.

101–02. The ALJ’s consideration of the first CT scan was proper despite its occurrence

before the onset date. See 20 C.F.R. §§ 404.1512, 416.912(a). The ALJ also did not err in

her evaluation of the August 2016 CT scan because Dr. Singhal found that the scan was

unremarkable despite showing the partially empty sella and question of prominence of the

optic nerve sheaths. R. 360–61. This finding serves as substantial evidence in support of

the ALJ’s determination.

Plaintiff also contends that the ALJ improperly omitted evidence that she had ataxic

and unsteady gait in April 2016. Doc. 17 at 14. However, an ALJ does not have a rigid

requirement to specifically refer to every piece of evidence in the record. Dyer, 395 F.3d

at 1211. Here, there was substantial evidence weighing against finding an impairment as

to Plaintiff’s gait. For instance, Dr. Han’s August 2016 examination found a cautious and

unsteady gait but no ataxia on physical examination. R. 357. Dr. Villamizar did not record

ataxia or any other gait problems after a November 2016 physical examination. R. 373–74.

Dr. Villamizar then reported Plaintiff had a normal gait in January 2017. R. 420. In August

2017, Dr. Rubin stated Plaintiff was somewhat hesitant when walking but walked with a

normal base. R. 402. Dr. Malik again found Plaintiff had normal gait and stance in a

January 2018 physical examination. R. 398–99. The results of each of these examinations

are inconsistent with and weigh against Dr. Kesserwani’s April 2016 evaluation.

Finally, Plaintiff contests the ALJ’s decision regarding inconsistencies between her

allegations and the medical evidence with respect to her use of a cane. Doc. 17 at 14–15.

However, Plaintiff fails to provide any medical evidence demonstrating that she ever used

a cane, and it remains her burden to produce evidence in support of her claim. See 20 C.F.R.

§ 416.912(a); Ellison, 355 F.3d at 1276. It is the duty of the Commissioner to evaluate not

only Plaintiff’s subjective complaints, but all the types of evidence included in 20 C.F.R.

§ 404.1529(c), and then resolve conflicts and inconsistencies in the evidence. Here, there

was a sole mention of Plaintiff using a cane for balance (R. 273–74), compared to a sole

refusal to use a cane (R. 317) and substantial evidence in the form of diagnostic testing and

physical examinations weighing against Plaintiff’s alleged gait problems. Accordingly, the

ALJ’s finding that Plaintiff’s subjective complaints of disabling symptoms were not

entirely consistent with the other evidence of record was not improper.

Because the ALJ provided explicit and adequate reasons for discrediting Plaintiff’s

allegations, neither reversal nor remand is warranted as to the ALJ’s credibility finding.

See Foote, 67 F.3d at 1562. Further, because the ALJ applied the correct legal standards,

and because there is substantial evidence in support of the RFC as well as the finding that

Plaintiff is not entitled to disability benefits, the Court may not reevaluate the evidence or

override the ALJ’s judgment. See Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158–

59 (11th Cir. 2004). This is true “[e]ven if the evidence preponderates against the

Commissioner’s findings.” Id. (citation omitted).

V. CONCLUSION

For the reasons set forth above, the Court concludes that the Commissioner’s

decision is based on the proper legal standards and supported by substantial evidence.

Accordingly, the decision of the Commissioner is AFFIRMED.

A final judgment will be entered separately.

DONE this 30th day of July, 2021.

/s/ Kelly Fitzgerald Pate

KELLY FITZGERALD PATE

UNITED STATES MAGISTRATE JUDGE