McKenzie v. Kijakazi (CONSENT)

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

SOUTHERN DIVISION

WILLIE MCKENZIE, )

)

Plaintiff )

)

v. ) NO. 1:20-cv-00118-SRW

)

KILOLO KIJAKAZI,1 )

Acting Commissioner of )

Social Security, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

Plaintiff Willie McKenzie commenced this action on February 20, 2020, pursuant to 42

U.S.C. §§ 405(g), 1383(c)(3), seeking judicial review of a final adverse decision of the

Commissioner of Social Security (“the Commissioner”) denying his applications for a period of

benefits, social security disability (“SSD”), and supplemental security income (“SSI”) benefits

under Titles II and XVI of the Social Security Act (“the Act”). See Doc. 1. Plaintiff filed his

applications on December 8, 2016 and December 7, 2016, respectively, alleging that he became

disabled on October 1, 2014. (Tr. 15, 166, 180, 182, 196).2 Plaintiff’s applications were denied at

the initial administrative level. (Tr. 15, 166-79, 182-95, 217). Plaintiff then requested and received

a hearing before an Administrative Law Judge (“ALJ”), in which he appeared with an attorney.

(Tr. 15, 36-55, 226). On January 30, 2019, the ALJ issued an unfavorable decision. (Tr. 15-29).

1Kilolo Kijakazi became acting Commissioner for the Social Security Administration on July 9,

2021, and is automatically substituted as a party pursuant to Fed. R. Civ. P. 25(d).

2 References to transcript pages are denoted by the abbreviation “Tr.”

Plaintiff appealed that decision, and the Appeals Council denied Plaintiff’s request for review on

January 13, 2020. (Tr. 1-5). The ALJ’s decision therefore became the final decision of the

Commissioner. Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986).

In the instant appeal, Plaintiff asks the court to reverse the Commissioner’s decision and

remand this cause to the Commissioner for a new hearing and further consideration under sentence

four of 42 U.S.C. § 405(g). See Doc. 1; Doc. 12, at 15. The case is ripe for review pursuant to 42

U.S.C. §§ 405(g) and 1383(c)(3). Under 28 U.S.C. § 636(c) and Rule 73 of the Federal Rules of

Civil Procedure, the parties have consented to the conduct of all proceedings and entry of a final

judgment by the undersigned United States Magistrate Judge. See Docs. 6, 7. Based on its review

of the parties’ submissions, the relevant law, and the record as a whole, the court concludes that

the Commissioner’s decision is due to be AFFIRMED.

II. STANDARD OF REVIEW AND REGULATORY FRAMEWORK3

The court’s review of the Commissioner’s decision is a limited one. This court must find

the Commissioner’s decision conclusive if it is supported by substantial evidence. 42 U.S.C. §

405(g); Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997). “Substantial evidence is more

than a scintilla,” but less than a preponderance, “and is such relevant evidence as a reasonable

person would accept as adequate to support a conclusion.” Crawford v. Comm’r of Soc. Sec., 363

F.3d 1155, 1158 (11th Cir. 2004) (“Even if the evidence preponderates against the Commissioner’s

findings, [a reviewing court] must affirm if the decision reached is supported by substantial

evidence”) (citations omitted). The court will reverse the Commissioner’s decision if it is

convinced that the decision was not supported by substantial evidence or that the proper legal

3 For purposes of this appeal, the court uses the Code of Federal Regulations (“C.F.R.”) that was

effective until March 27, 2017, because that was the version of the C.F.R. in effect at the time

Plaintiff filed a claim for benefits. See 20 C.F.R. Part 404 and 416, effective March 27, 2017; see

also https://www.ssa.gov/disability/professionals/bluebook/revisions-rules.html Q.3.

2

standards were not applied. Carnes v. Sullivan, 936 F.2d 1215, 1218 (11th Cir. 1991). However,

reversal is not warranted even if the court itself would have reached a result contrary to that of the

factfinder. See Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991). A reviewing court

may not look only to those parts of the record which support the decision of the ALJ, but instead

must view the record in its entirety and take account of evidence which detracts from the evidence

relied on by the ALJ. Hillsman v. Bowen, 804 F.2d 1179, 1180 (11th Cir. 1986).

[The court must] . . . scrutinize the record in its entirety to determine the

reasonableness of the [Commissioner’s] . . . factual findings. . . . No similar

presumption of validity attaches to the [Commissioner’s] legal conclusions,

including determination of the proper standards to be applied in evaluating claims.

Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987) (citations omitted and bracketed material

added).

To qualify for disability benefits and establish his or her entitlement for a period of

disability, a person must be unable 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).4 To make this determination, the Commissioner employs a five-step,

sequential evaluation process. See 20 C.F.R. §§ 404.1520; 416.920.

(1) Is the person presently unemployed?

(2) Is the person’s impairment severe?

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

forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1 [the Listing of Impairments]?

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

4 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).

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

An affirmative answer to any of the above questions leads either to the next

question, or, on steps three and five, to a finding of disability. A negative answer

to any question, other than step three, leads to a determination of “not disabled.”

McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).5

The burden of proof rests on the claimant through step four. See Phillips v. Barnhart, 357

F.3d 1232, 1237-39 (11th Cir. 2004); see also Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir.

2003). A claimant establishes a prima facie case of qualifying disability once he or she has carried

the burden of proof from step one through step four. At step five, the burden shifts to the

Commissioner, who must then show that there are a significant number of jobs in the national

economy that the claimant can perform. Id.

To evaluate the fourth and fifth steps, the ALJ must determine the claimant’s Residual

Functional Capacity (“RFC”). Phillips, 357 F.3d at 1238-39. The RFC is what the claimant is still

able to do despite the claimant’s impairments and is based on all relevant medical and other

evidence. Id. It may contain both exertional and nonexertional limitations. Id. at 1242-43. At the

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

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

do this, the ALJ can use either the Medical Vocational Guidelines (“grids”), see 20 C.F.R. pt. 404

subpt. P, app. 2, or call 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

5 McDaniel is a supplemental security income (SSI) case. The same sequence applies to disability

insurance benefits brought under Title II of the Social Security Act. Supplemental security income

cases arising under Title XVI of the Social Security Act are appropriately cited as authority in Title

II cases, and vice versa. See, e.g., Ware v. Schweiker, 651 F.2d 408, 412 (5th Cir. 1981); Smith v.

Comm’r of Soc. Sec., 486 F. App’x 874, 876 n.* (11th Cir. 2012) (“The definition of disability and

the test used to determine whether a person has a disability is the same for claims seeking disability

insurance benefits or supplemental security income.”).

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can independently limit the number of jobs realistically available to an individual. Id. 1240.

Combinations of these factors yield a statutorily-required finding of “Disabled” or “Not Disabled.”

Id.

III. ADMINISTRATIVE PROCEEDINGS

Plaintiff was 42 years old at the time he filed his applications for benefits and 44 years old

at the time of the ALJ’s decision. (Tr. 15, 29, 40, 166, 180, 182, 196, 361). Plaintiff is a resident

of Headland, Alabama, and lives in a mobile home with his fiancée.6 (Doc. 1; Tr. 49, 277). Plaintiff

has an eighth-grade education. (Tr. 41).

Plaintiff claims that his ability to work is limited by bipolar disorder, a pinched nerve in

lower back, rheumatoid arthritis, carpal tunnel syndrome, neuropathy in his right leg, hypertension,

anxiety, panic attacks, mania, and moderate hearing loss. (Tr. 368). Plaintiff previously worked as

a truck driver. (Tr. 27, 50, 397, 400-01).

Following the administrative hearing, at which Plaintiff and a vocational expert testified,

and employing the five-step process, the ALJ made the following enumerated findings:

1. The claimant meets the insured status requirements of the Social Security

Act through March 31, 2017.

2. The claimant has not engaged in substantial gainful activity since October 1,

2014, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).

3. The claimant has the following severe impairments: osteoarthritis, cervical

spine degenerative disc disease, morbid obesity, sleep apnea, bipolar

disorder, and panic disorder (20 CFR 404.1520(c) and 416.920(c)).

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, 404.1526, 416.920(d), 416.925 and 416.926).

6 At the ALJ’s hearing, Plaintiff referred to his significant other, Jennifer Riley, as both his fiancée

and wife. (Tr. 45, 48, 49, 54). In his brief, Plaintiff refers to Riley as his fiancée. (Doc. 12, at 8).

The ALJ refers to Riley as Plaintiff’s fiancée. (Tr. 27). Accordingly, the court also refers to Riley

as Plaintiff’s fiancée.

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5. The claimant has the residual functional capacity to perform sedentary work

as defined in 20 CFR 404.1567(a) and 416.967(a) except occasionally

stoop, kneel, crouch, and climb ramps and stairs, but never crawl. He should

avoid all exposure to hazards. He can understand, remember, and apply

short, simple instructions and attend for two-hour periods. He can tolerate

occasional interaction with the public and co-workers. Changes in the work

setting should be introduced slowly and occur no more than occasionally.

6. The claimant is unable to perform any past relevant work (20 CFR 404.1565

and 416.965).

7. The claimant was born on September 24, 1974 and was 40 years old, which

is defined as a younger individual age 18-44, on the alleged disability onset

date. The claimant subsequently changed age category to a younger

individual age 45-49 (20 CFR 404.1563 and 416.963).

8. The claimant has a marginal education and is able to communicate in

English (20 CFR 404.1564 and 416.964).

9. Transferability of job skills is not material to the determination of disability

because using the Medical-Vocational Rules as a framework supports a

finding that the claimant is “not disabled,” whether or not the claimant has

transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P,

Appendix 2).

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 404.1569,

404.1569a, 416.969, and 416.969a).

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

Security Act, from October 1, 2014, through the date of this decision (20

CFR 404.1520(g) and 416.920(g)).

(Tr. 17, 18, 21, 27, 28, 29).

IV. ISSUES ON APPEAL

On appeal, Plaintiff essentially argues that the ALJ failed to consider properly his bilateral

hearing loss at step two and beyond in the sequential evaluation process, and that the ALJ’s RFC

determination was not based upon substantial evidence as the ALJ mischaracterized the medical

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record. (Doc. 12, at 1). The Commissioner maintains that Plaintiff failed to establish that his

hearing loss caused work-related limitations, that substantial evidence supports the ALJ’s RFC

determination, and that Plaintiff maintained the functional ability to perform sedentary work. (Doc.

13, at 5, 7).

V. DISCUSSION

A. Failure to Consider Bilateral Hearing Loss

Plaintiff argues that, although the ALJ acknowledged Plaintiff’s “moderate hearing loss,”

the ALJ neither mentioned the hearing loss at step two or found it non-severe, nor did the ALJ

account for it (or explain why it was not accounted for) in determining Plaintiff’s RFC. (Doc. 12,

at 8). The Commissioner contends that the ALJ was not required to identify every severe

impairment at step two and that Plaintiff has not met his burden to show that his moderate hearing

loss was a severe impairment or that it resulted in functional limitations to his ability to work.

(Doc. 13, at 6).

An impairment or combination of impairments is “severe” if it “significantly limits [the

plaintiff’s] physical or mental ability to do basic work activities”7 and persists for at least twelve

consecutive months. 20 C.F.R. §§ 404.1520(c) and 416.920(c); 404.1505(a) and 416.905(a).

Plaintiff bears the burden to prove that an impairment is severe. See Doughty v. Apfel, 245 F.3d

1274, 1278 (11th Cir. 2001). “Step two is a threshold inquiry,” McDaniel, 800 F.2d at 1031, which

acts as a “filter” to eliminate claims involving no substantial impairment, Jamison v. Bowen, 814

F.2d 585, 588 (11th Cir. 1987). “If the ALJ finds a claimant does not have a ‘severe’ impairment

or combination of impairments, she should conclude the claimant does not have a disability.”

7 Basic work activities are “the abilities and aptitudes necessary to do most jobs,” such as “walking,

standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling; [c]apacities for seeing,

hearing, and speaking; [u]nderstanding, carrying out, and remembering simple instructions; [u]se

of judgment; [r]esponding appropriately to supervision, co-workers and usual work situations; and

[d]ealing with changes in a routine work setting.” 20 CFR § 404.1521(b) (2016).

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Vangile v. Comm’r, Soc. Sec. Admin., 695 F. App’x 510, 513 (11th Cir. 2017). In the Eleventh

Circuit, “the finding of any severe impairment, whether or not it qualifies as a disability and

whether or not it results from a single severe impairment or a combination of impairments that

together qualify as severe, is enough to satisfy the requirement of step two.” Id. When an ALJ

recognizes at least one severe impairment, the ALJ is not required to identify additional

impairments at step two if the decision demonstrates that the ALJ properly considered all

impairments at subsequent steps. Tuggerson-Brown v. Comm’r of Soc. Sec., 572 F. App’x 949,

951 (11th Cir. 2014). At the fourth step of the sequential evaluation process, an ALJ must consider

all medically determinable impairments, not just the “severe” impairments identified at step two.

Id.; 20 C.F.R. §§ 404.1545(a)(2); 416.945(a)(2). The ALJ’s responsibility is met when she

considers all medical evidence in the record by referencing the claimant’s “combination of

impairments” at step three and stating that she considered “all symptoms” in assessing the RFC.

Tuggerson-Brown, 572 F. App’x at 951-52. Importantly, the “mere existence” of an impairment

does not reveal its effect on a claimant’s ability to work or undermine RFC findings. Moore v.

Barnhart, 405 F.3d 1208, 1213 n.6 (11th Cir. 2005).

At step two in this case, the ALJ satisfied the requirements of the threshold inquiry by

finding that Plaintiff has severe impairments, namely osteoarthritis, cervical spine degenerative

disc disease, morbid obesity, sleep apnea, bipolar disorder, and panic disorder. (Tr. 18); see

Jamison, 814 F.2d at 588. Because the ALJ found that Plaintiff has at least one severe impairment,

the ALJ was not required to identify all of Plaintiff’s severe impairments before moving to step

three of the sequential evaluation process. See Tuggerson-Brown, 572 F. App’x at 951-52; see

Packer v. Comm’r, Soc. Sec. Admin., 542 F. A’ppx 890, 892 (11th Cir. 2013) (“[S]ince the ALJ

proceeded beyond step two, any error in failing to find that [the claimant] suffers from the

additional severe impairments of degenerative joint disease of the right knee or varicose veins

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would be rendered harmless.”).

Although the ALJ did not err at step two, the court must still review whether or not the

ALJ considered all of Plaintiff’s impairments, regardless of severity, in performing the next steps

of the sequential evaluation process. Plaintiff argues that, while the ALJ acknowledged his

“moderate hearing loss” and used boilerplate language stating that all evidence was considered,

the ALJ’s decision is devoid of any analysis of Plaintiff’s hearing loss. (Doc. 12, at 8).

An RFC determination is an assessment of what a claimant is still able to do despite the

claimant’s impairments and is based on all relevant medical and other evidence. Phillips, 357 F.3d

at 1238-39; Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir.1997); 20 C.F.R. §§ 404.1545(a),

416.945(a). “There is no rigid requirement that the ALJ specifically refer to every piece of

evidence, so long as the ALJ’s decision is not a broad rejection, i.e., where the ALJ does not

provide enough reasoning for a reviewing court to conclude that the ALJ considered the claimant’s

medical condition as a whole.” Packer, 542 F. App’x at 891-92. “[I]t is the duty of the

administrative law judge to make specific and well-articulated findings as to the effect of the

combination of impairments and to decide whether the combined impairments cause the claimant

to be disabled.” Bowen v. Heckler, 748 F.2d 629, 635 (11th Cir. 1984). “A statement by the ALJ

that [the ALJ] considered the combination of impairments constitutes an adequate expression of

such findings.” Kelly v. Berryhill, No. 1:17-CV-35, 2018 WL 3430679, at *4 (M.D. Ala. July 16,

2018). See Heatly v. Comm’r of Soc. Sec., 382 F. App’x 823, 825 (11th Cir. 2010) (citing Jones v.

HHS, 941 F.2d 1529, 1533 (11th Cir. 1991) for the proposition that “a simple expression of the

ALJ’s consideration of the combination of impairments constitutes a sufficient statement of such

findings”); see id. at 825 n.3 (“The record also does not support Heatly’s argument that the ALJ’s

alleged error at step two prevented the ALJ from considering all of his impairments in combination

in the rest of the sequential evaluation. At step four, the ALJ explicitly stated that it considered

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‘the entire record’ and ‘all symptoms.’”). Under Eleventh Circuit precedent, where “the ALJ stated

that he evaluated whether [the claimant] had an ‘impairment or combination of impairments’ that

met a listing and that he considered ‘all symptoms’ in determining [the claimant’s] RFC,” “those

statements are enough to demonstrate that the ALJ considered all necessary evidence.” Tuggerson-

Brown, 572 F. App’x at 951-52 (citing Wilson v. Barnhart, 284 F.3d 1219, 1224-25 (11th Cir.

2002)); Hamby v. Soc. Sec. Admin., Com’r, 480 F. App’x 548, 550 (11th Cir. 2012).

Here, the ALJ found that “the undersigned has considered the functional limitations

resulting from all of the claimant’s medically determinable impairments, including those that are

non-severe (20 CFR 404.1545 and 416.945),” and concluded that “[t]he 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.” (Tr. 18). Additionally, the

ALJ’s opinion stated that the ALJ considered “the entire record” as well as “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 404.1529 and 416.929

and SSR 16-3p.” (Tr. 21). In assessing Plaintiff’s RFC, the ALJ noted Plaintiff’s alleged

impairments, including “moderate hearing loss.” (Tr. 22). The ALJ concluded:

After careful consideration of the evidence, the undersigned finds that the

claimant’s medically determinable impairments could reasonably be expected to

cause the alleged symptoms; however, the claimant’s statements concerning the

intensity, persistence and limiting effects of these symptoms are not entirely

consistent with the medical evidence and other evidence in the record for the

reasons explained in this decision.

(Tr. 22).

Based on Eleventh Circuit precedent, the court concludes that the ALJ’s statements

demonstrate that the ALJ sufficiently considered all of Plaintiff’s impairments in combination in

the rest of the sequential evaluation. See Tuggerson-Brown, 572 F. App’x at 951-52; Heatly, 382

F. App’x at 825 n.3; Vangile, 695 F. App’x at 514 n.2 (“[A]lthough the ALJ did not explicitly

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mention Vangile’s chronic mastoiditis at step three, she did note Vangile ‘had alleged disability

because of chronic mastoiditis’ at step four of her analysis.”); Chavis v. Colvin, No. 1:14-CV-

01147, 2016 WL 2764713, at *6 (M.D. Ala. Apr. 21, 2016), report and recommendation adopted,

No. 1:14-CV-1147, 2016 WL 2637799 (M.D. Ala. May 9, 2016) (“While the ALJ could have

discussed the medical evidence regarding Chavis' headaches in more detail, the ALJ’s analysis

was sufficient to discharge his duty that he consider all the impairments, severe and nonsevere, in

combination.”).

Plaintiff’s reliance on Williams v. Barnhart, 186 F. Supp.2d 1192, 1197-98 (M.D. Ala.

2002), and Cook v. Barnhart, 347 F.Supp.2d 1125, 1132 (M.D. Ala. 2004), in support of his

argument that—other than adding boilerplate language stating that all evidence was considered—

the ALJ did not analyze Plaintiff’s hearing loss (Doc. 12, at 8; Doc. 17, at 2), is misplaced. In

Williams, 186 F.Supp.2d at 1197-98, unlike here, the ALJ did not even mention several of the

impairments alleged. See Chavis, 2016 WL 2764713, at *6 and L. v. Colvin, No. 4:14-CV-2238,

2016 WL 627710, at *10-11 (N.D. Ala. Feb. 17, 2016). Cook is also distinguishable, as the ALJ

found that the claimant had severe impairments in that case, but the ALJ’s decision did not specify

what those impairments were. See 347 F. Supp. 2d at 1129. As stated previously, in the case before

this court, the ALJ properly used the language that the Eleventh Circuit has previously found

sufficient, which satisfies the ALJ’s obligation of considering Plaintiff’s impairments in

combination beyond the second step of the evaluation process.

Plaintiff, however, argues that the ALJ failed to consider his moderate hearing loss at step

four of the sequential evaluation, despite that fact that Dr. Sam Banner, whose opinion the ALJ

accorded great weight, diagnosed Plaintiff with “bilateral hearing loss” and the fact that Plaintiff

was prescribed hearing aids. (Doc. 12, at 8; Doc. 17, at 4). Plaintiff contends that, although his

hearing loss causes functional limitations, including the need for hearing aids, that affect his ability

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to work, the ALJ neither allowed for the use of any assistive device such as hearing aids in

formulating Plaintiff’s RFC nor addressed the noise level of the work environment. (Doc. 17, at

4).

“[T]he mere diagnosis of [a condition] says nothing about the severity of the condition.”

Crans v. Berryhill, No. 3:16-CV-914-GMB, 2017 WL 4683933, at *5 (M.D. Ala. Oct. 18, 2017)

(quoting Higgs v. Bowen, 880 F.2d 860, 863 (6th Cir. 1988)). “[A] diagnosis or a mere showing

of ‘a deviation from purely medical standards of bodily perfection or normality’ is insufficient;

instead, the claimant must show the effect of the impairment on her ability to work.” Wind v.

Barnhart, 133 F. App’x 684, 690 (11th Cir. 2005) (quoting McCruter v. Bowen, 791 F.2d 1544,

1547 (11th Cir. 1986)); Moore v. Barnhart, 405 F.3d 1208, 1213 n.6 (11th Cir. 2005) (“[T]he mere

existence of these impairments does not reveal the extent to which they limit her ability to work

or undermine the ALJ’s determination in that regard.”); accord Hutchinson v. Astrue, 408 F. App’x

324, 325 (11th Cir. 2011) (stating “proof of the mere existence of impairments does not prove the

extent to which they limit a claimant’s ability to work.”).

Here, Plaintiff has failed to show that his hearing loss constituted a severe impairment that

affected his ability to work. Dr. Banner diagnosed Plaintiff with “bilateral hearing loss” and noted

that he wore hearing aids. (Tr. 872, 875). However, Dr. Banner also found that Plaintiff was able

to pass the whisper test at five feet bilaterally with his hearing aids in place. (Tr. 872). Plaintiff

does not cite to any medical records that show that he has any functional limitations with or without

hearing aids. Moreover, at the administrative hearing, Plaintiff did not mention wearing hearing

aids, any problems associated with his hearing loss, or how such hearing loss prevented him from

working or affected his ability to work. Nor did Plaintiff’s attorney ask him about his hearing loss

during counsel’s examination of Plaintiff or mention anything about hearing loss to the VE. See

Foy v. Berryhill, No. CV CBD-17-2743, 2018 WL 3707837, at *4 (D. Md. Aug. 3, 2018) (finding

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that the ALJ’s failure to discuss plaintiff’s hearing loss and tinnitus did not constitute reversible

error where plaintiff was unable to point to any subsequent evidence that his hearing loss or tinnitus

bothered him even slightly, and at the administrative hearing, plaintiff failed to mention suffering

from either hearing loss or tinnitus and his attorney likewise never asked plaintiff about his hearing

loss or tinnitus during counsel’s examination of plaintiff); Lenowsky v. Kijakazi, No. 8:20-CV-

1004, 2021 WL 3879047, at *7 (M.D. Fla. Aug. 31, 2021) (“Regardless of this issue, the Plaintiff's

conjecture that his hearing loss prevents him from engaging in medium work—without more—is

not a basis for reversal in any event.”).

Further, any failure by the ALJ to address the use of any assistive device such as hearing

aids in formulating Plaintiff’s RFC or discuss the noise level of the work environment is harmless

error, because the inclusion of these limitations would not have changed the result. Based upon

the VE’s testimony, the ALJ found that Plaintiff had the RFC to perform jobs existing in significant

numbers in the national economy. (Tr. 28). The jobs of assembler, DICOT 713.687-018, 1991 WL

679271; weight checker, DICOT 737.687-026, 1991 WL 680047; and document preparer, DICOT

249.587-018, 1991 WL 672349 all indicate that the requirement of “hearing” is “Not Present -

Activity or condition does not exist.” Thus, because the limitations that Plaintiff raises would not

affect his ability to perform one of the jobs determined to be appropriate for Plaintiff that exists in

significant numbers in the national economy, the ALJ’s failure to include limitations involving

hearing aids is harmless. See Caldwell v. Barnhart, 261 F. App’x 188, 190 (11th Cir. 2008) (finding

harmless error where an alleged limitation that was not included in the ALJ’s hypothetical (or in

the RFC) was not necessary to perform one or more of the jobs identified by the VE, according to

the DOT).

Accordingly, for these reasons, the court concludes that Plaintiff has not met his burden to

show that his moderate hearing loss was a severe impairment or that it resulted in functional

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limitations to his ability to work.

B. Mischaracterization of Medical Record and RFC Determination

Plaintiff argues that the ALJ mischaracterized Dr. Banner’s objective findings regarding

Plaintiff’s range of motion and strength in his extremities, and that—based upon this

mischaracterization—the ALJ failed to include any limitations with respect to handling, fingering,

or feeling in Plaintiff’s RFC. (Doc. 12, at 9-10, 13-14).

On February 15, 2017, Dr. Banner conducted a consultative examination of Plaintiff on

behalf of the agency. (Tr. 871-75). The examination showed that Plaintiff was able to flex and

extend his neck 30 degrees, laterally flex his neck 40 degrees, and rotate his neck bilaterally 90

degrees; no spasms were observed. (Tr. 872). Dr. Banner found that Plaintiff had sensation changes

with positive Phalen’s signs in all of his fingers. (Tr. 873). Dr. Banner also noted that Plaintiff had

crepitance in his left knee with range of motion. (Tr. 873). Examination revealed that Plaintiff had

“Hip extension 0 degrees bilaterally,” “Hip flexion 60 degrees bilaterally,” and “Knee flexion 90

degrees bilaterally.” (Tr. 873-74). Plaintiff had no back spasms, and he was able to bend forward

45 degrees, bend backward 10 degrees, laterally flex 15 degrees, and rotate his back 20 degrees

bilaterally. (Tr. 874).

Dr. Banner found that Plaintiff had no pain or difficulty getting on or off the examination

table; he was able to “walk normal step, height and length without deviation from straight line”;

Plaintiff’s station was normal, although he was unable to squat during the examination; and he was

able to tandem walk and heel-to-toe walk. (Tr. 874). Dr. Banner’s findings as to “Motor Report

Weakness” was “4+/5 left extremities after five repetitions” and “4/5 lower extremities after five

repetitions.” (Tr. 874). Dr. Banner also found that Plaintiff’s sensation to pinprick, which was

tested in the face and in his upper and lower extremities, was intact. (Tr. 874). Plaintiff’s

examination also reflected that Plaintiff’s grip strength was 4/5 bilaterally, there was no atrophy

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of any muscle group in the upper or lower extremities, his muscle tone was normal, his fine and

gross motions in both hands were satisfactory, and Plaintiff was able to button and unbutton

clothing without difficulty. (Tr. 875).

Summarizing the findings of Dr. Banner, to whose opinion the ALJ gave great weight, the

ALJ stated as follows:

Findings from a physical consultative examination performed by Sam R. Banner,

M.D., in February 2017 show that the claimant had decreased range of motion of

the lumbar spine, left knee crepitance, and sensation changes of all fingers with

Phalen's testing, but otherwise, had full range of motion of all other joints, full

strength of all extremities, intact sensation to pinprick in the face and all

extremities, normal gait, no evidence of ataxia, intact fine and gross manipulation,

and satisfactory tandem heel to toe walk.

(Tr. 23, 26).

However, the ALJ’s summary that Plaintiff “had full range of motion of all other joints”

and “full strength of all extremities” is inaccurate, as Dr. Banner’s examination showed that

Plaintiff had decreased range of motion in some joints and less than full strength in his extremities.

Dr. Banner found that Plaintiff had “Hip extension 0 degrees bilaterally,” “Hip flexion 60 degrees

bilaterally,” and “Knee flexion 90 degrees bilaterally,” while the normal range of motion as to

these is 30, 100, and 150, respectively. See Doc. 12, at 10 n.1; Doc.12-1. Similarly, instead of

Plaintiff’s having “full strength of all extremities,” Dr. Banner’s examination showed that Plaintiff

had “4+/5 left extremities after five repetitions” and “4/5 lower extremities after five repetitions.”

(Tr. 874).

Although the ALJ inaccurately summarized Dr. Banner’s medical findings, any

misstatements were at most harmless error, as the ALJ’s opinion as whole reflects that the ALJ

considered entire record in determining Plaintiff’s RFC. “[T]he task of determining a claimant’s

[RFC] and ability to work rests with the [ALJ], not a doctor.” Moore v. Soc. Sec. Admin., Comm’r,

649 F. App’x 941, 945 (11th Cir. 2016). “To find that an ALJ’s RFC determination is supported

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by substantial evidence, it must be shown that the ALJ has ‘provide[d] a sufficient rationale to

link’ substantial record evidence ‘to the legal conclusions reached.’” Eaton v. Colvin, 180 F. Supp.

3d 1037, 1055 (S.D. Ala. 2016) (citations omitted). “[T]o find that the ALJ’s RFC assessment is

supported by substantial evidence, it is not necessary for the ALJ’s assessment to be supported by

the assessment of an examining or treating physician.” Id. at 1055-56.

Here, Dr. Banner’s findings were not the only evidence on which the ALJ relied in

determining Plaintiff’s RFC. (Tr. 21-27). The ALJ cited to records from Dothan Family Health

Center through December 2016 in which physical examination findings indicated that Plaintiff had

“mild paraspinal, lower back, and hand tenderness, but otherwise, had normal findings, including

normal lungs and cardiovascular findings, no sensory abnormalities, no motor dysfunction, normal

gait and stance, and normal coordination and reflexes.” (Tr. 23, 441-42, 445, 448, 452). The ALJ

also cited to emergency department examination records from April and December 2016 showing

that Plaintiff had “left mid to low back muscular tenderness, but had normal range of motion and

strength, and no neurological deficits.” (Tr. 23, 698, 863, 942). Emergency department records

from August 12, 2017 reflected that, on examination, Plaintiff had “painful range of motion of the

neck, but had strong and equal grip strength, no crepitus, normal strength, no tenderness, intact

sensation, and intact cranial nerves.” (Tr. 23-24, 917). Also, “X-rays of the cervical spine showed

mild degenerative changes.” (Tr. 24, 917). The ALJ also considered medical records from January

through February 2018 from Myers Chiropractic Clinic with neck, back, and upper and lower

extremity pain and examination findings that showed that Plaintiff had tenderness, spasms,

and decreased range of motion of the cervical, thoracic, and lumbar spine, and pain with

straight leg raise testing. (Tr. 24, 976-77). However, the records reflected that Plaintiff “had

negative craniocervical functional maneuver, normal reflexes, negative Tinel test bilaterally

for carpal tunnel syndrome, and normal compression test.” (Tr. 24, 976-77).

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The ALJ further considered the February 22, 2017 opinion of State agency medical

consultant, E. Russell March Jr., M.D. (Tr. 26, 166-175). Dr. March reviewed the medical

evidence, including the medical examination by Dr. Banner, and found that Plaintiff could

“perform work at a light exertional level as defined by the regulations except frequently

balance; occasionally stoop, kneel, crouch, and climb ramps and stairs, but never climb

ladders, ropes, or scaffolds, or crawl; and avoid all exposure to unprotected heights.” (Tr. 26,

170, 173-75). The ALJ afforded partial weight to Dr. March’s opinion, given recent

chiropractic treatment records from January 30, 2018 that showed that Plaintiff “had

decreased range of motion and tenderness of the cervical, thoracic, and lumbar spine, but had

negative craniocervical functional maneuver, normal reflexes, negative Tinel test bilaterally

for carpal tunnel syndrome, and normal compression test.” (Tr. 26, 976-77). Additionally, the

ALJ considered recent imaging studies of the cervical spine that “showed normal disc heights,

osteophyte, degenerative joint disease anterior C4, C5, and C6 levels, and abnormal alignment

at Cl-C2,” as well as X-rays of the lumbar spine that “showed symmetrical and equal facet joints,

no evidence of osteoarthritis or degenerative joint disease, moderate disc narrowing at L5-S1, and

mild to spinous rotation.” (Tr. 26-27, 979).

In viewing the evidence in the light most favorable to Plaintiff and considering

Plaintiff’s subjective complaints, the ALJ concluded that Plaintiff could perform work at a

sedentary exertional level. (Tr. 27). The ALJ noted that Plaintiff worked in 2015 and 2016 as

a pizza delivery driver and that he did not indicate during the administrative hearing that he

was not able to continue doing so due to impairment related symptoms. (Tr. 25, 40, 305, 352).

The ALJ concluded that “[w]hile the earnings did not rise to substantial gainful activity level,

it suggest[ed] that he would be able to work within the residual functional capacity.” (Tr. 25).

The Commissioner may consider a claimant’s work activity in evaluating a plaintiff’s claims and

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in fashioning the plaintiff’s RFC. See 20 C.F.R. §§ 404.1571, 416.971 (“Even if the work you have

done was not substantial gainful activity, it may show that you are able to do more work than you

actually did.”); Cooper v. Comm’r of Soc. Sec., 521 F. App’x 803, 808 (11th Cir. 2013); see Miller

v. Comm’r of Soc. Sec., 524 F. App’x 191, 194 (6th Cir. 2013) (“Further, the ALJ did not err by

considering [the plaintiff’s] ability to maintain part-time employment as one factor relevant to the

determination of whether he was disabled.”).

Based on the record, the court concludes that he ALJ did not rely solely on Dr. Banner’s

examination findings in determining Plaintiff’s RFC. The ALJ considered the record as a whole,

including evidence such as Dr. March’s opinion and the chiropractic treatment records, which

postdated Dr. Banner’s examination findings. Dr. March, a State agency consultant, reviewed Dr.

Banner’s examination findings. State agency medical or psychological consultants are considered

experts in Social Security disability evaluation. Hanisee v. Comm’r of Soc. Sec., 797 F. App’x 449,

450 (11th Cir. 2019); 20 C.F.R. §§ 404.1527(e)(2), 416.927(e)(2). Although Dr. March found that

Plaintiff could perform work at a light exertional level, the ALJ’s RFC determination was even

more restrictive after the ALJ also considered the more recent chiropractor records that showed a

decreased range of motion. Plaintiff does not cite to any medical source who offered the opinion

that Plaintiff was more limited than the RFC finding of the ALJ or that he was disabled by his

impairments.

Plaintiff also argues that the ALJ erred in concluding that his rheumatoid arthritis was

non-severe as the ALJ found that “Dothan Family Health Center records indicate that the

claimant has diagnoses of rheumatoid arthritis and bilateral carpal tunnel syndrome, based on

the claimant’s complaints of right hand pain. . . . There is no evidence of additional treatment

or laboratory findings for rheumatoid arthritis or carpal tunnel syndrome.” (Doc. 12, at 10-11;

Tr. 18). Plaintiff contends that the ALJ mischaracterized the record because Dothan Family

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Health records do not indicate that the diagnosis was based solely on his complaints, and that

there is evidence of laboratory findings in support of the diagnosis, although the lab results

are not included in the record due to a “catastrophic loss of medical records” from November

2011 through August 26, 2016 by Dothan Family Health Center. (Doc. 12, at 11; Tr. 684). In

support of his argument, Plaintiff also cites medical records from Dr. Joseph Sewell who

stated that Plaintiff’s condition included “Rheumatoid arthritis of hand,” (Tr. 446, 45), and

Dr. Banner’s diagnosing Plaintiff with rheumatoid arthritis (Tr. 875). (Doc. 12, at 11-12).

As discussed previously, because the ALJ found at least one severe impairment and

moved beyond step two of the sequential evaluation, the mere fact that the ALJ did not find

Plaintiff’s rheumatoid arthritis severe was not error. Vangile, 695 F. App’x at 513; Tuggerson-

Brown, 572 F. App’x at 951. Nor does Plaintiff’s diagnosis of rheumatoid arthritis establish that

the impairment was severe or caused limitations in his ability to work. Moore, 405 F.3d at 1213

n.6; Wind, 133 F. App’x at 690. The ALJ specifically considered all of Plaintiff’s medically

determinable impairments, including his rheumatoid arthritis, as well as the entire record in

assessing his RFC. (Tr. 18, 21, 22). Plaintiff contends that the sensation changes, numbness, motor

weakness with repetition, and decreased grip strength documented during Dr. Banner’s

examination support a finding that Plaintiff was limited in his ability to feel. (Doc. 12 at 14; Tr.

873-75). However, the ALJ found that Dr. Banner’s examination showed that, although Plaintiff

“had numbness of all fingers” and “had sensation changes in all fingers with Phalen’s,” Plaintiff

“had satisfactory fine and gross manipulation and was able to button and unbutton clothing without

difficulty.” (Tr. 18, 875). Further, Dr. March, who gave the only functional opinion as to Plaintiff’s

physical limitations and who also considered Dr. Banner’s examination findings, determined that

Plaintiff had no manipulative limitations. (Tr. 26, 170, 173-75, 186, 190). Additionally, the ALJ

noted that emergency department records from August 12, 2017 reflected that on examination

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Plaintiff had “strong and equal grip.” (Tr. 23, 917).

Accordingly, based upon the foregoing, the court concludes that the ALJ properly

considered the entire record in determining Plaintiff’s RFC and that the ALJ’s decision is

supported by substantial evidence. Crawford, 363 F.3d at 1158 (“Even if the evidence

preponderates against the Commissioner’s findings, [a reviewing court] must affirm if the decision

reached is supported by substantial evidence”); Edwards, 937 F.2d at 584 n.3 (“Under th[e]

[substantial evidence] standard, [a reviewing court] do[es] not reverse the Secretary even if th[e]

court, sitting as a finder of fact, would have reached a contrary result.”); Ulman v. Comm’r of Soc.

Sec., 693 F.3d 709, 714 (6th Cir. 2012) (“As long as the ALJ cited substantial, legitimate evidence

to support his factual conclusions, we are not to second-guess: ‘If the ALJ’s decision is supported

by substantial evidence, then reversal would not be warranted even if substantial evidence would

support the opposite conclusion.’”) (citation omitted).

VI. CONCLUSION

The court has carefully and independently reviewed the record and it concludes that, for

the reasons given above, the Commissioner’s decision is due to be AFFIRMED. A separate

judgment will issue.

DONE, on this the 14th day of September, 2021.

/s/ Susan Russ Walker

Susan Russ Walker

United States Magistrate Judge

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