McCormick v. Kijakazi (CONSENT)

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

EASTERN DIVISION

TERRY WILSON MCCORMICK, )

)

Plaintiff, )

)

v. ) CASE NO. 3:19-cv-600-JTA

)

KILOLO KIJAKAZI, ) (WO)

Acting Commissioner of Social Security,1 )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

Pursuant to 42 U.S.C. § 405(g), the claimant, Terry McCormick (“McCormick”),

brings this action to review a final decision by the Commissioner of Social Security

(“Commissioner”). (Doc. No. 1.) 2 The Commissioner denied McCormick’s claim for a

period of disability, Disability Insurance Benefits (“DIB”), and Supplemental Security

Income (“SSI”). (R. 93.) The parties have consented to the exercise of dispositive

jurisdiction by a magistrate judge pursuant to 28 U.S.C. § 636(c). (Docs. No. 21, 22.)

After careful scrutiny of the record and the briefs submitted by the parties, the Court

finds that the decision of the Commissioner is due to be AFFIRMED.

1 Under Federal Rule of Civil Procedure 25(d), the Court substitutes Kilolo Kijakazi, the acting

Commissioner of the Social Security Administration, for Andrew Saul, the former Commissioner.

2 Document numbers, as they appear on the docket sheet, are designated as “Doc. No.”

I. PROCEDURAL HISTORY AND FACTS

McCormick was born on June 24, 1971, and was 45 years old at the time of the

administrative hearing held on June 2, 2017. (R. 278, 285.) He completed the ninth grade

and previously worked as a welder. (R. 105-06.) He alleged a disability onset date of

March 8, 2012, due to back problems, hypertension and chronic obstructive pulmonary

disorder (COPD). (R. 278, 285, 316.)

On August 26, 2015, McCormick applied for a period of disability, DIB and SSI

under Title II (42 U.S.C. §§ 401, et seq.) and Title XVI of the Social Security Act (42

U.S.C. §§ 1389, et seq.). (R. 278, 285.) Both applications were denied on November 13,

2015 (R. 169, 178) and McCormick requested an administrative hearing (R. 184-85).

Following an administrative hearing, the Administrative Law Judge (“ALJ”) denied

McCormick’s request for benefits in a decision dated October 4, 2017. (R. 80-93.)

McCormick requested review by the Appeals Council. (R. 254.) The Appeals Council

granted review (R. 257) and on September 24, 2018 issued a decision finding that

McCormick is not disabled (R. 34-38).

On February 12, 2019, McCormick requested additional time to seek judicial review

of the decision by the Appeals Council. (R. 13.) On June 19, 2019, the Appeals Council

granted the request and allowed McCormick 30 (thirty) days from his receipt of the

extension to file a civil action. (R. 2.) On July 3, 2019, McCormick filed the instant action

appealing the decision of the Commissioner. (Doc. No. 1.)

II. STANDARD OF REVIEW

Judicial review of disability claims is limited to whether the Commissioner's

decision is supported by substantial evidence and whether the correct legal standards were

applied. 42 U.S.C. § 405(g); Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005).

“The Commissioner's factual findings are conclusive” when “supported by substantial

evidence.” Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001). “Substantial

evidence” is more than a mere scintilla 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) (quoting Lewis v. Callahan, 125 F.3d 1346,

1349 (11th Cir. 1997)). Even if the Commissioner's decision is not supported by a

preponderance of the evidence, the findings must be affirmed if they are supported by

substantial evidence. Id. at 1158-59; see also Martin v. Sullivan, 894 F.2d 1520, 1529

(11th Cir. 1990). The court may not find new facts, reweigh evidence, or substitute its own

judgment for that of the Commissioner. Bailey v. Soc. Sec. Admin., Comm’r, 791 F. App’x

136, 139 (11th Cir. 2019); Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir. 2004);

Dyer, 395 F.3d at 1210. However, the Commissioner's conclusions of law are not entitled

to the same deference as findings of fact and are reviewed de novo. Ingram v. Comm'r of

Soc. Sec. Admin., 496 F.3d 1253, 1260 (11th Cir. 2007).

III. STANDARD FOR DETERMINING DISABILITY

An individual who files an application for Social Security DIB and SSI must prove

that he is disabled. See 20 C.F.R. § 404.1505; 20 C.F.R. § 416.920.3 The Act defines

“disability” as the “inability to engage in any substantial gainful activity by reason of any

medically determinable physical or mental impairment which can be expected to result in

death or which has lasted or can be expected to last for a continuous period of not less than

12 months.” 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. § 404.1505(a).

Disability under the Act is determined under a five-step sequential evaluation

process. See 20 C.F.R. § 404.1520. The evaluation is made at the hearing conducted by

the ALJ. See Washington v. Comm’r of Soc. Sec., 906 F.3d 1353, 1359 (11th Cir. 2018).

First, the ALJ must determine whether the claimant is currently engaged in substantial

gainful activity. 20 C.F.R. § 404.1520(b). “Substantial gainful activity” is a work activity

that involves significant physical or mental activities. 20 C.F.R. § 404.1572(a). If the ALJ

finds that the claimant is engaged in substantial gainful activity, the claimant cannot claim

disability. 20 C.F.R. § 404.1520(b). Second, the ALJ must determine whether the claimant

has a medically determinable impairment or a combination of impairments that

significantly limit the claimant's ability to perform basic work activities. 20 C.F.R. §

404.1520(c). Absent such impairment, the claimant may not claim disability. Id. Third,

the ALJ must determine whether the claimant meets or medically equals the criteria of an

3 Although DIB and SSI are separate programs, the law and regulations governing claims under

the respective programs are identical; therefore, claims for DIB and SSI are treated identically for

the purpose of determining disability. See Patterson v. Bowen, 799 F.2d 1455, 1456 n.1 (11th Cir.

1986).

impairment listed in 20 C.F.R. § 404, Subpart P, Appendix 1. 20 C.F.R. §§ 404.1520(d),

404.1525, and 404.1526. If such criteria are met, then the claimant is declared disabled.

20 C.F.R. § 404.1520(d). If the claimant has failed to establish that he is disabled at the

third step, the ALJ may still find disability under the next two steps of the analysis. At the

fourth step, the ALJ must determine the claimant's residual functional capacity (“RFC”),

which refers to the claimant's ability to work despite his impairments. 20 C.F.R. §

404.1520(e). The ALJ must determine whether the claimant has the RFC to perform past

relevant work. 20 C.F.R. § 404.1520(f). If it is determined that the claimant is capable of

performing past relevant work, then the claimant is not disabled. 20 C.F.R. §

404.1560(b)(3). If the ALJ finds that the claimant is unable to perform past relevant work,

then the analysis proceeds to the fifth and final step. 20 C.F.R. § 404.1520(g)(1). In this

final analytical step, the ALJ must decide whether the claimant can perform any other

relevant work corresponding with his RFC, age, education, and work experience. 20

C.F.R. § 404.1560(c). Here, the burden of proof shifts from the claimant to the ALJ in

proving the existence of a significant number of jobs in the national economy that the

claimant can perform given his RFC, age, education, and work experience. 20 C.F.R. §§

404.1520(g), 404.1560(c).

IV. ADMINISTRATIVE DECISION

Within the structure of the sequential evaluation process the ALJ found that

McCormick has not engaged in substantial gainful activity since August 5, 2015, the

amended onset date of disability,4 and that he suffers from the following severe

impairments that significantly limit his ability to perform basic work activities:

degenerative disc disease, hypertension, COPD/asthma, obesity, affective disorder/bipolar

disorder, and coronary artery disease. (R. 83.) The ALJ found non-severe impairments of

arthritis in various joints and sleep apnea. (Id.) The ALJ concluded that McCormick’s

severe impairments do not meet or medically equal the severity of one of the listed

impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 83-86.)

After consideration of the entire record, the ALJ determined that McCormick retains

the RFC to perform light work5 as defined in 20 C.F.R. § 404.1567(b). (R. 86.) The ALJ

found the following workplace limitations applicable to McCormick:

Function by function, the claimant is able to lift and carry 20 pounds

occasionally and 10 pounds frequently. The claimant is able to stand and/or

walk no more than 4 hours (total) of the workday. The claimant will be

allowed a sit/stand option. The claimant will frequently balance and stoop.

The claimant can occasionally crouch. The claimant will never climb

ramps/stairs, kneel, crawl, or climb ladders, ropes, and scaffolds. The

claimant will avoid concentrated exposure to extreme cold/extreme heat,

wetness and humidity. The claimant will avoid concentrated exposure to

fumes, odors, dusts, gases and poor ventilation. He will avoid all exposure

to hazards including dangerous machinery and unprotected heights. He will

never drive a commercial vehicle. He will perform simple routine tasks and

will be provided short simple instructions. He will be provided reminders

every 2 hours to help keep him on task. He will have occasional interaction

with the general public and co-workers.

4 During his administrative hearing, McCormick made an oral motion to amend his onset date

from March 8, 2012 to August 5, 2015. (R. 103.) The ALJ granted the motion. (R. 80.)

5 “Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying

of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in

this category when it requires a good deal of walking or standing, or when it involves sitting most

of the time with some pushing and pulling of arm or leg controls. To be considered capable of

performing a full or wide range of light work, you must have the ability to do substantially all of

these activities . . . .” 20 C.F.R. § 404.1567(b).

(Id.)

Based upon the testimony of a vocational expert (“VE”), the ALJ determined that

McCormick was precluded from performing any past relevant work. (R. 91.) The ALJ

also found that based upon McCormick’s age, education, work experience and RFC, there

are jobs that exist in “significant numbers in the national economy” that he can perform,

and therefore he was not disabled as defined by the Act. (R. 91-92.) The ALJ further

found that McCormick could work as a paper pattern folder, garment folder or factory

inspector.6 (R. 92.) The ALJ concluded that McCormick had not been under a disability

from August 5, 2015, through October 4, 2017, the date of the ALJ’s decision. (R. 93.)

McCormick requested review of the ALJ’s decision by the Appeals Council. (R.

254.) The Appeals Council granted his request and informed him that, based upon the

written record before the ALJ and hearing testimony, the ALJ’s decision was not supported

by substantial evidence. (R. 257-58.) The Appeals Council agreed with the findings of the

ALJ under steps one through four of the sequential evaluation process, but found at the

fifth step that the ALJ’s decision was “incorrect in its listing of other jobs that [McCormick]

can still do in spite of [his] impairments; therefore [the Appeals Council stated it planned]

to issue a new decision correcting the other jobs.” (R. 258-59.) The Appeals Council

adopted the VE’s hearing testimony7 as to the jobs that McCormick could perform and

6 The ALJ found that McCormick can perform work as a factory inspector. This was inconsistent

with the VE’s hearing testimony. The VE testified that three jobs McCormick could perform in

the light work category are information clerk, office helper, and garment sorter. (R. 128.)

7 The Appeals Council decision changed the list of possible jobs to information clerk, office helper,

and garment sorter. (R. 260.)

stated its intent to issue a decision that he was not disabled from August 5, 2015 through

October 4, 2017. (R. 258-60.) The Appeals Council invited McCormick to submit a

“statement about the facts and the law in [his] case or additional evidence within 30 days.”

(R. 260.) The Appeals Council advised McCormick it would consider the additional

evidence if he

show[s] [that it] is new, material, and relates to the period on or before the

date of the hearing decision. [McCormick] must also show there is a

reasonable probability that the additional evidence would change the

outcome of the decision. [He] must show good cause why [he] missed

informing [the Appeals Council] about or submitting it earlier.

(R. 257, 260.)

On September 24, 2018, the Appeals Council issued a decision. (R. 34-38.) It

acknowledged McCormick’s submission of additional medical records were relevant to

2018 and explained that because the ALJ decision was issued on October 4, 2017, the

records did not relate to the period at issue. (R. 34.) The Appeals Council then adopted

the ALJ’s decision on the issue of disability and noted its earlier correction of jobs that

McCormick can perform. (R. 34.) In so doing, the Appeals Council adopted the ALJ’s

sequential analysis findings, with the additional finding that McCormick’s “alleged

symptoms are not consistent with and supported by the evidence of record for the reasons

identified in the body of this decision.” (R. at 36-37.) The Appeals Council’s decision

became the final decision of the Commissioner.

V. DISCUSSION

McCormick presents four discernible arguments on appeal.8 First, McCormick

argues the Appeals Council did not adequately evaluate the new evidence he submitted so

remand is warranted. (Doc. No. 14 at 24.) Second, he argues the ALJ did not give proper

weight to his work history. (Id. at 29.) Third, he argues the ALJ did not properly consider

his obesity. (Id. at 31.) Fourth, he argues the ALJ improperly applied the Eleventh

Circuit’s three-part pain standard. (Id. at 32.)

The Court evaluates each of McCormick’s arguments below.

A. The Appeals Council was not required to consider the new evidence.

A claimant is allowed to present new evidence at each stage of the administrative

process, including before the Appeals Council. 20 C.F.R. § 404.900(b). If the claimant

submits new evidence after the ALJ's decision, the Appeals Council must consider the

evidence if it is new, material, and chronologically relevant. See Washington v. Soc. Sec.

Admin., Comm’r., 806 F.3d 1317, 1320 (11th Cir. 2015); 20 C.F.R. § 404.970(b). The

evidence is material if “there is a reasonable possibility that [the new evidence] would

change the administrative result.” Hyde v. Bowen, 823 F.2d 456, 459 (11th Cir. 1987); see

8 McCormick raises five arguments in his brief. (Doc. No. 14.) In his fifth argument, McCormick

references records he submitted, but he discusses disability for a female claimant identified as

“Howard.” (See Doc. No. 14 at 40-41) (“Prior counsel filed an appeal and submitted the records

of Dave Harvey . . . and Quality of Life . . . . Importantly, all submissions describe physical and

psychological symptoms manifested by Howard that . . . could bear on her condition during the

relevant period between 7/1/05 the alleged onset date 3/11/11 and 1/25/13, the date of the

decision.”). Because the argument in this section is substantially similar to McCormick’s first

issue, i.e., whether new evidence submitted to the Appeals Council was improperly excluded from

review under 20 C.F.R. § 404.970(b), the Court addresses this argument to the extent that it is

applicable to McCormick as part of his first argument.

20 C.F.R. § 404.970(a)(5). “New evidence is chronologically relevant if it ‘relates to the

period on or before the date of the [ALJ’s] hearing decision.’ ” Hargress v. Soc. Sec.

Admin., 883 F.3d 1302, 1309 (11th Cir. 2018) (quoting 20 C.F.R. § 404.970(b)); see also

McClain v. Soc. Sec. Admin., 760 F. App’x 728, 731 (11th Cir. 2019).

Here, McCormick’s argument that his new records were inadequately considered is

unavailing. The record before the Court establishes that the Appeals Council did not

consider McCormick’s new evidence because it was not chronologically relevant. The

Notice of Appeals Council Action issued on June 24, 2018, informed McCormick that it

would consider additional evidence that is “new, material, and relates to the period on or

before the date of the hearing decision.” (R. 257, 260.) The Appeals Council decision

noted that the additional medical records submitted by McCormick covered the time

between January 2, 2018 and August 21, 2018, while the provider statements from Dave

A. Harvey (“Harvey”), social worker, covered the time between February 1, 2018 and

August 23, 2018. (R. 34.) The Appeals Council explained that the timeframe of the records

did not relate to McCormick’s disability claim because the date of the ALJ hearing decision

was October 4, 2017. (Id.) The Appeals Council found that the additional evidence did

“not relate to the period at issue” and therefore did not “affect the decision about whether

[McCormick] was disabled beginning on or before October 4, 2017.” (Id.) The Appeals

Council was not required to give a more detailed explanation. See Hargress, 883 F.3d at

1309 (citation omitted).

Moreover, the Court agrees with the Appeals Council’s finding that the new

evidence was not chronologically relevant. The medical records consisted of progress

notes from McCormick’s individual psychotherapy counseling with Harvey and a letter

from Harvey wherein he stated his disagreement with the disability determination. (R. 42-

76.) These records discussed only 2018. Nothing in these medical records show Harvey

treated McCormick during the relevant period, Harvey had considered past medical records

of McCormick in forming his disability opinion or that the information in these records

relate to the period of disability before the ALJ. See Washington v. Soc. Sec. Admin., 806

F.3d 1317, 1322-23 (11th Cir. 2015) (recognizing that medical opinions based on treatment

occurring after the date of the ALJ’s decision may be chronologically relevant when, in

part, a doctor reviewed the claimant’s treatment records from that period when forming his

opinion). Because the new evidence was not chronologically relevant, the Appeals Council

was not required to consider it. Accordingly, the Appeals Council did not err in its decision

not to consider the new evidence submitted by McCormick and remand is not warranted

on that basis.

B. The ALJ did not err in her consideration of McCormick’s work history.

McCormick argues the ALJ and Appeals Council failed to give proper weight to his

excellent work history in determining whether he was credible. (Doc. No. 14 at 1, 29.)

Although McCormick does not directly attack the credibility determinations of the Appeals

Council and ALJ, he appears to argue that the failure to give proper weight to his work

history warrants remand.9 (Id. at 29.) McCormick acknowledges that the Eleventh Circuit

9 Notably, McCormick does not cite to any provision in the Social Security Act, the Regulations,

or agency’s sub-regulatory policies supporting his position that the ALJ must discuss or even

consider work history as a favorable factor. (See Docs. No. 14, 17.)

Court of Appeals has not adopted a rule on whether the claimant’s work history must be

considered when determining a claimant’s credibility (id. at 30), thus he cites a case from

the Seventh Circuit Court of Appeals to argue that a “claimant with a good work record is

entitled to substantial credibility when claiming an inability to work because of a disability”

(id. at 29) (quoting Hill v. Colvin, 807 F.3d 862, 868 (7th Cir. 2015)).

McCormick’s argument is without merit. “While a claimant’s ‘prior work record’

is a consideration in evaluating a claimant’s credibility, 20 C.F.R. § 404.1529(c)(3), ‘the

Eleventh Circuit has not [ruled that] an ALJ’s failure to consider a claimant’s ‘lengthy and

consistent work record’ in evaluating a claimant’s credibility is erroneous.” Mahon v.

Comm'r of Soc. Sec., No. 8:16-cv-1462-T-JSS, 2017 WL 3381714, at *10 (M.D. Fla. Aug.

7, 2017) (citing Lafond v. Comm'r of Soc. Sec., No. 6:14-CV-1001-ORL-DAB, 2015 WL

4076943, at *9 (M.D. Fla. July 2, 2015)). This court is not inclined to follow the law of a

non-binding circuit on this issue.10 Rather, this court is persuaded by other district courts

10 Notably, in Edwards v. Sullivan, 937 F.2d 580, 584 (11th Cir. 1991), the Eleventh Circit rejected

the argument that “the ALJ should have accepted [a claimant’s] testimony about her pain because

she had a good work history.” The Circuit stated,

. . . Congress has set forth the conditions under which a claimant's complaints of

pain may establish the existence of a disability. 42 U.S.C. § 423(d)(5)(A). This

court has previously examined this section and ruled that a claimant must produce

“evidence of an underlying medical condition and (1) objective medical evidence

that confirms the severity of the alleged pain arising from that condition or (2) that

the objectively determined medical condition is of such a severity that it can be

reasonably expected to give rise to the alleged pain.” Landry v. Heckler, 782 F.2d

1551, 1553 (11th Cir. 1986).

Id. The Circuit held that substantial evidence supported the ALJ's conclusion because the claimant

“failed to meet either of the two conditions that would satisfy the second part of this test, and the

ALJ was thus not required to grant [the claimant] benefits based on her complaints of pain. Id.

from within the Eleventh Circuit which have found no reversible error where the ALJ did

not specifically discuss the claimant’s work history in the credibility analysis. See, e.g.,

Brothers v. Berryhill, No. 4:18-cv-01557-JEO, 2019 WL 3555064, at *4 (N.D. Ala. Aug.

5, 2019) (holding ALJ did not err “in determining Plaintiff’s credibility without reference

to his prior work ethic”); Wilson v. Soc. Sec. Admin., Comm’r, No. 4:18-cv-00407-JHE,

2020 WL 1285927, at *6 (N.D. Ala. Mar. 16, 2020) (finding claimant’s “argument that the

ALJ erred by failing to consider [his] work history is unpersuasive”); Neff v. Saul, No.

8:18-cv-3040-T-SPF, 2020 WL 1181952, at *5-6 (M.D. Fla. Mar. 12, 2020) (finding no

reversible error where ALJ did not specifically discuss plaintiff's work history in his

credibility analysis); Henley v. Comm'r of Soc. Sec., No. 8:19-cv-3011-T-MAP, 2021 WL

321503, at *6 (M.D. Fla. Feb. 1, 2021) (finding no error in ALJ's credibility analysis despite

not explicitly discussing plaintiff's work history); Sickmiller v. Saul, No. 8:19-cv-3087-

SPF, 2021 WL 1186846, at *7 (M.D. Fla. Mar. 30, 2021) (“in reaching his credibility

determination, the ALJ applied the correct legal standards and his findings are supported

by substantial evidence. . . . although the ALJ did not specifically discuss Plaintiff's work

history in his credibility analysis”); Coleman v. Astrue, No. 8:11-CV-1783-T-TGW, 2012

WL 3231074, at *5 (M.D. Fla. Aug. 6, 2012) (finding the “the law judge's credibility

determination is not deficient because she did not discuss the plaintiff's work record in the

course of that determination”).

Hence, the Circuit did not hold that a claimant’s good work history must be considered in relation

to a claimant’s complaints of pain.

Further, the record shows the Appeals Council and the ALJ considered

McCormick’s work history as a production welder. (R. 25, 37, 91.) The ALJ elicited

testimony from McCormick during the administrative hearing as to why he stopped

working (R. 107) and as to his work as a welder (R. 107-108). In addition, McCormick’s

earnings record was a part of the administrative record (R. 298-309) and the ALJ

considered it (R. 81). Further, both the Appeals Council and ALJ considered testimony

from the VE regarding McCormick’s work experience. (R. 36, 118.) In short, the record

establishes that the Appeals Council and ALJ were aware of McCormick’s strong work

history throughout the evaluation process. Accordingly, the Court finds no reversible error

exists on this issue to warrant remand.

C. McCormick’s obesity was properly considered by the ALJ.

McCormick asserts the ALJ failed to give his obesity proper consideration under

SSR 02-01p. (Doc. No. 14 at 31.) McCormick recognizes the ALJ found his obesity was

a severe impairment and contends the ALJ “does not explain how his gross weight would

affect his ability to function in a work setting.” (Id.) McCormick then includes a block

quote from Early v. Astrue, 481 F. Supp. 2d 1233, 1239 (N.D. Ala. 2007), but makes no

argument pertaining to its relevance in or application to this case.11 (Id.)

11 Early is clearly distinguishable from the case at hand as the ALJ in Early did not find the

claimant’s obesity to be a severe impairment. 481 F. Supp. 2d at 1239.

The record belies McCormick’s claim that SSR 02-01p12 was not properly

considered by the ALJ. Social Security Ruling 02-01p “ ‘does not mandate a particular

mode of analysis’ but merely directs an ALJ to consider the claimant’s obesity in

combination with other impairments.” Williams v. Astrue, No. 2:11-cv-888-TFM, 2011

WL 6412224, at * 8 (M.D. Ala. Dec. 21, 2011). Albeit the ALJ did not specifically

reference Ruling 02-01p in the hearing decision, nonetheless the ALJ properly considered

McCormick’s obesity in assessing his RFC. The record reflects the ALJ found that

McCormick’s obesity was one of his severe impairments (R. 83) and that he had a body

mass index (BMI) greater than 30 (R. 88). The ALJ noted “although [McCormick] has

alleged some general complaints generally [sic] associated with obesity, there is no

documented evidence [he] suffers from any severe physical limitation to his weight or that

his weight restricts his ability to ambulate or perform other postural activities.” (R. 88.)

12 As stated in Castel v. Comm'r of Soc. Sec., 355 F. App’x 260, 264 (11th Cir. 2009), the relevant

portions of Ruling 02-01p provide:

“An assessment should also be made of the effect obesity has upon the

individual's ability to perform routine movement and necessary physical activity

within the work environment ... As explained in SSR 96–8p ... our RFC

assessments must consider an individual's maximum remaining ability to do

sustained work activities in an ordinary work setting on a regular and continuing

basis....

....

The combined effects of obesity with other impairments may be greater than

might be expected without obesity....

....

... When we identify obesity as a medically determinable impairment ..., we will

consider any functional limitations resulting from the obesity in the RFC

assessment, in addition to any limitations resulting from any other physical or

mental impairments we identify.”

(citing 67 Fed. Reg. 57859, 57862–63 (Sept. 12, 2002)). However, Ruling 02-01p was rescinded,

effective May 20, 2019, and replaced with Ruling 19-2p.

Absent such evidence, the ALJ acknowledged that while McCormick’s “obesity may

exacerbate his pain or other symptoms, there is no indication it would preclude him from

performing the modified light exertional residual functional capacity assessed herein.”

(Id.) Thus, contrary to McCormick’s assertion, the ALJ properly considered his obesity as

required under Ruling 02-01p in assessing his RFC and remand is not warranted on this

issue.

D. The ALJ properly applied the pain standard.

McCormick argues the ALJ erred in finding his severe conditions do not cause the

disabling symptoms he alleges and that the ALJ’s deficient analysis resulted in the

misapplication of the Eleventh Circuit pain standard. (Doc. No. 14 at 32, 39.) The

Commissioner responds that substantial evidence supports the ALJ’s determination. (Doc.

No. 15 at 14.)

“In order to establish a disability based on testimony of pain and other symptoms,

[McCormick] must satisfy two parts of a three-part test showing: (1) evidence of an

underlying medical condition; and (2) either (a) objective medical evidence confirming the

severity of the alleged pain; or (b) that the objectively determined medical condition can

reasonably be expected to give rise to the claimed pain.” Wilson v. Barnhart, 284 F.3d

1219, 1225 (11th Cir. 2002) (citation omitted). A claimant's subjective testimony

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

finding of disability. Foote v. Charter, 67 F.3d 1553, 1561 (11th Cir. 1995).

“If an ALJ discredits subjective testimony, he must articulate explicit and adequate

reasons for doing so.” Wilson, 284 F.3d at 1225. Failure to articulate adequate reasons for

discrediting the claimant's subjective complaints of pain requires that the testimony be

accepted as true. Brown v. Sullivan, 921 F.2d 1233, 1236 (11th Cir. 1991). Yet, “[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 (internal citations omitted).

“The credibility determination does not need to cite ‘particular phrases or formulations’

but it cannot merely be a broad rejection which is ‘not enough to enable [the district court]

to conclude that [the ALJ] considered [a claimant’s] medical condition as a whole.’ ” Dyer,

395 F.3d at 1210 (citing Foote, 67 F.3d at 1562).

McCormick did not provide extensive testimony regarding his pain. When the ALJ

asked McCormick why he thought he was unable to work, McCormick stated “because I

can’t breathe to hold out long for any kind of meaningful work. I can’t concentrate on the

work. I can’t, you know, stand in one place for very long, or sit down for very long.” (R.

108.) When the ALJ asked the cause of his breathing problems, McCormick responded “I

have COPD. It’s a combination between the breathing and the joints and the back and

everything like that.” (R. 108.) The ALJ next asked McCormick if he had pain and he

answered affirmatively, stating that the pain “[r]ang[es] anywhere from my ankles all the

way up to my knees, to my hips, to the small of my back, to up my back, elbows,

shoulders.” (R. 108-09.) McCormick rated his pain as 5½ to 6 on any given day, and from

7 to 7½ during the hearing. (R. 109.) McCormick further testified that if he is active, his

pain level ranges between 9 and 10, his whole body twitches, and he “just starts feeling

like it’s literally a knife stuck in [him].” (R. 116-17.) McCormick also testified that he

starts to hurt if he stands in one place too long while washing dishes or cooking. (R 113.)

He stated that he cannot bend far because his knees begin to tingle and pain goes to his

hips. (R. 114.) He reported that nitroglycerine successfully relieves his chest pain two to

three times a week within minutes. (R. 115-16.) He estimated that he could sit or stand in

one place for four or five minutes and lies down for four hours a day. (R. 116, 117.)

The ALJ found that McCormick’s complaints regarding the intensity, persistence

and limiting effects of his symptoms were not consistent with the medical evidence and

other evidence in the record. (R. 87, 89.) While the ALJ did not explicitly state that she

discredited McCormick’s subjective complaints of pain, she cited 20 C.F.R. § 404.1529 –

the pain standard – in her discussion (R. 86), she set forth the analysis for subjective pain

testimony (R. 86),13 and she found that McCormick’s “medically determinable

impairments could reasonably be expected to cause the alleged symptoms, however, [his]

13 Specifically, the ALJ noted in her decision the following:

In considering the claimant's symptoms, the undersigned must 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 the claimant's pain

or other symptoms.

Second, once an underlying physical or mental impairment(s) that could reasonably

be expected to produce the claimant's pain or other symptoms has been shown, the

undersigned must evaluate the intensity, persistence, and limiting effects of the

claimant's symptoms to determine the extent to which they limit the claimant's

functional limitations. 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, the undersigned must consider other

evidence in the record to determine if the claimant's symptoms limit the ability to

do work-related activities.

(R. 86.)

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.” (R. 87). The ALJ noted “the medical evidence of

record supports the presence of conditions that could reasonably be expected to cause the

types of symptoms [McCormick] alleges, but not the full extent to which he alleges them.”

(R. 89.) The ALJ also noted that “[d]espite [McCormick’s] allegations his impairments

cause debilitating functional limitaitons, to the contrary, he has reported being able to

engage in numerous daily tasks . . . such as being able to perform household chores, care

for his personal needs, prepare simple meals, mow the lawn, and engage in tasks/activities

that require bending and walking.” (R. 87, 90.)

The ALJ specifically addressed McCormick’s back pain, stating

The claimant has a longitudinal history of back pain that began after a motor

vehicle accident in 2004, but in 2012, he realized his pain was progressively

getting worse . . . . In an effort to manage his lower back pain, the claimant

underwent right and left-sided medial branch blocks which provided between

50% to 90% pain relief (more pain relief was achieved on the left side) . . . .

. However, because he was still in pain, he subsequently underwent a

radiofrequency ablation of the lumbar medial branch nerves to the left L3-4

L4-5 and LS-SI facet joints . . . . . With such treatment modalities, the results

of numerous examinations have indicated he has normal range of motion,

muscle strength, and stability in all extremities with no pain on inspection . .

. . . However, there have been instances during which some tenderness in

the spine and moderate pain with motion have been detected, as well as

limited range of motion and right thigh parathesias . . . . Nevertheless, the

claimant has retained the ability to move about freely and his motor strength

in the lower extremities is noted as a 5/5 . . . . In conjunction with the block

and ablation procedures, the claimant has also been prescribed pain

medication to manage his pain symptoms . . . . With proper management of

his pain symptoms, in July 2014, the claimant endorsed being able to bend,

walk and mow the lawn . . . . But at the same time, tenderness has also been

noted and moderate pain with motion, and . . . he was full weightbearing with

use of a cane . . . . In January 2017, and during subsequent exams he had

normal gait and normal muscle strength, muscle tone, and station . . . .

(R. 87.)

As to McCormick’s COPD, the ALJ noted that McCormick’s “symptoms have been

managed with medication in the form of inhalers, oral steroids and nebulizer treatments.”

(R. 88). The ALJ noted McCormick reported “his asthma symptoms were under good

control with duo nebs and his dyspenea was improved” in July 2015. (R. 88.) The ALJ

also noted that “[m]ore recent treatment records[] illustrate the examinations of the lungs

have been clear to auscultation and no serious abnormalities have been noted[,]” and in

“March 2016, imaging of the chest was taken and no acute cardiopulmonary process [was]

suspected within the examination parameters.” (Id.)

The AL correspondingly addressed McCormick’s “cardiac impairments, such as

hypertension and coronary artery disease,” stating

While the claimant has been diagnosed with hypertension, he has denied

percordial pain and substernal pain during routine exams, and this condition

is generally stable with treatment. . . .[T]reatment records from 2016 and

2017 continue to document his hypertension is stable. . . . The claimant also

suffers from coronary artery disease, but this impairment is stable with

treatment. . . . in March 2015, he denied chest discomfort with daily

activities, and at that time did not need Nitroglycerin. . . . in April 2016, a

basic or routine cardiac examination yielded unremarkable findings, but a

cardiovascular stress test was abnormal. . . . The following year in April

2017, he reported chest discomfort while performing household chores and

yard work, and it was becoming clear that his symptoms were getting

progressively worse. . . . [B]ased on the claimant’s chest discomfort

complaints, an echocardiogram was performed and confirmed his ejection

fraction was normal at 55 to 60% . . . [S]everal months later the claimant still

reported some chest discomfort with daily activities, but these symptoms

were also noted as “improving.”

(R. 88-89.)

After considering McCormick’s subjective complaints of pain and the entire record,

the ALJ found his “subjective complaints to be partially consistent with the evidence of

record,” and concluded “his allegations concerning his symptoms are accorded little weight

in determining his residual functional capacity assessment.” (R. 89.) Although

McCormick “indicated his musculoskeletal pain affects him on a daily basis, and has

compromised his functioning,” the ALJ found his “treatment records illustrate . . . the

results of numerous routine examinations fail to identify any serious abnormalities that

would lead to debilitating functional limitaitons.” (R. 89-90.) The ALJ considered

McCormick’s ability to ambulate and noted “the results of several routine examinations

are significant and consistent with being able to engage in various activities . . [which are]

indicative of being able to engage in exertional activities such as lifting and carrying, as

well, as standing and sitting and other postural activities.” (R. 90.) The ALJ also noted

McCormick’s “conditions have been generally well-controlled with treatment during the

relevant period.” (Id.) The ALJ emphasized that the RFC assessment of light work would

accommodate McCormick’s “postural and environmental limitations to address discomfort

and ensure his safety” in conjunction with his ability to manage his symptoms “relatively

well,” as evidenced in the record. (R. 90.)

The objective medical evidence supports the ALJ’s conclusion.14 The ALJ

reviewed procedure reports related to McCormick’s back pain from 2014 and 2015. Dr.

Hans Miller (“Dr. Miller”) noted that the right and left-sided medial branch blocks he

14 The Court notes McCormick does not identify a specific failure on the ALJ’s part beyond his

general claim that the pain standard was improperly applied.

performed were helpful after McCormick reported over fifty percent relief from pain on

the right side and up to ninety percent on the left. (R. 372, 376.) McCormick also reported

being able to bend, walk and mow grass after Dr. Miller performed the procedures in July

2014. (R. 471.) The records also show that McCormick’s motor strength in the lower

extremities was 5/5 in October 2015, two months after the alleged onset date of disability.

(R. 448.) Dr. Miller explained to McCormick that his MRI did not show “any serious

unusual findings.” (R. 392.) Additionally, McCormick’s primary caregivers at Quality of

Life Health Services noted that McCormick had a normal gait in April 2017. (R. 635.) He

also had normal muscle strength, muscle tone and station (R. 597, 627-28, 635),

notwitstanding tenderness in the thoracic and lumbar spine and moderate pain with motion

(R. 627-28, 635).

Records from McCormick’s cardiologist show that he reported chest pain in April

2017, but did not have chest pressure, lightheadedness, fatigue, palpitations, or

cough/sneezing. (R. 548.) On separate occasions in 2015 and 2016, McCormick reported

improved symptoms, no chest discomfort with daily activities, and no need to use

Nitroglycerin. (R. 550, 564.) This is consistent with his earlier reports in 2016 that his

chest pain was triggered by exertion. (R. 552, 555.) An ultrasound performed on January

15, 2015 revealed no significant cerebrovascular disease. (R. 574.) A stress

echocardiogram performed on the same date showed typical angina and severe dyspnea

with exercise and no malignant arrhythmias. (R. 575.) Further, McCormick’s lungs were

consistently clear during visits to his cardiologist. (R. 548, 550, 553, 555, 558, 560.) A

pulmonary function test from April 2015 showed moderate restrictive lung disease with a

moderate reduction in total lung capacity. (R. 572.)

Upon reviewing the objective medical evidence in the record, the Court concludes

that substantial evidence exists to support the ALJ’s conclusion regarding McCormick’s

subjective complaints of pain. This conclusion is based upon the absence of objective

medical evidence supporting the extent of McCormick’s complaints of pain and the

conservative treatment for his pain employed by his treating physicians. There is no

evidence in the medical records of aggressive treatments for McCormick’s pain. In the

Eleventh Circuit, “ALJs are permitted to consider the type of treatment a claimant received

in assessing the credibility of his subjective complaints.” Pennington v. Comm’r of Soc.

Sec., 652 F. App’x 862, 873 (11th Cir. 2016) (claimant’s statement that pain was reduced

by medication indicates conservative treatment); see also Chatham v. Comm’r of Soc. Sec.,

764 F. App’x 864, 869 (11th Cir. 2019) (citing Wolfe v. Chater, 86 F.3d 1072, 1078 (11th

Cir. 1996)) to support holding that treatment is a relevant consideration in the

Commissioner’s assessment of pain under 20 C.F.R. § 404.1529(c)(3)(v)). Further, the

ALJ sufficiently contrasted McCormick’s testimony with treating records which indicated

that his pain was not debilitating (R. 87-89, 89-90), and it is obvious to this Court that the

ALJ considered McCormick’s medical condition as a whole in discounting his testimony

of disabling pain. Dyer, 395 F.3d at 1210. Therefore, the Court finds that the ALJ’s

determination that McCormick’s testimony of disabling pain was not credible is supported

by substantial evidence and is in accordance with the Eleventh Circuit’s pain standard.

VI. CONCLUSION

After review of the administrative record, and considering all of McCormick’s

arguments, the Court finds the Commissioner’s decision to deny him disability is supported

by substantial evidence and is in accordance with applicable law. Accordingly, it is hereby

ORDERED that the decision of the Commissioner is AFFIRMED.

A separate judgment will be issued.

DONE this 22nd day of September, 2021.

fer J. hha

JERUSHA T. ADAMS

ITED STATES MAGISTRATE JUDGE

24