Taylor v. Kijakazi(CONSENT)

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

TINA VICTORIA TAYLOR, )

)

Plaintiff )

)

v. ) NO. 2:20-cv-00611-SRW

)

KILOLO KIJAKAZI,1 )

Acting Commissioner of )

Social Security, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

Plaintiff Tina Victoria Taylor commenced this action on August 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 her application for supplemental

security income (“SSI”) benefits under Title XVI of the Social Security Act (“the Act”). See Doc.

1. Plaintiff filed her application on October 23, 2018, initially alleging that she became disabled

on November 14, 2017, but later amendng the onset date of disability to May 15, 2018, and then

again to October 23, 2018. (Tr. 23, 78-79, 262-63, 403-13, 426, 520).2 Plaintiff’s application was

denied at the initial administrative level. (Tr. 23, 362). Plaintiff then requested and received a

hearing before an Administrative Law Judge (“ALJ”), at which she appeared with an attorney. (Tr.

23, 67-102, 370-72). On November 27, 2019, the ALJ issued an unfavorable decision. (Tr. 23-38).

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 the actual transcript pages are denoted by the abbreviation “Tr.”

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

July 24, 2020. (Tr. 1-6). 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 14. 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. 9, 10. 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 FRAMEWORK

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

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

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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 be entitled to supplemental security income, 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 twelve

months.

42 U.S.C. § 1382c(a)(3(A).3 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?

(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.”

3 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. § 1382c(a)(3)(D).

3

McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).4

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

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.

4 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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III. ADMINISTRATIVE PROCEEDINGS

Plaintiff was 44 years old at the time she filed her applications for benefits and 45 years

old at the time of the ALJ’s decision. (Tr. 37, 551). Plaintiff is a resident of Andalusia, Alabama,

and lives in a house with her sister, brother, and her 21-year-old son. (Doc. 1; Tr. 74, 76). Plaintiff

has a high school education. (Tr. 37, 77).

Plaintiff claims that her ability to work is limited by headaches, memory loss, frustration,

nerve damage, degenerative joint disease, carpal tunnel, neuropathy, sleep apnea, mini strokes, and

panic attacks. (Tr. 262-63). Plaintiff previously worked as a fast-food restaurant worker, a

housekeeper, and a soil sorter. (Tr. 79-82, 532).

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 has not engaged in substantial gainful activity since October

23, 2018, the application date (20 CFR 416.971 et seq.).

2. The claimant has the following severe impairments: degenerative disc

disease of the cervical and lumbar spine, polyneuropathy, bilateral carpal

tunnel syndrome, migraines, hallux valgus of the bilateral feet, chronic renal

disease, transient ischemic attack, obesity, borderline intellectual

functioning, generalized anxiety disorder (“GAD”) and major depressive

disorder (“MDD”) (20 CFR 416.920(c)).

3. 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 416.920(d), 416.925

and 416.926).

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

as defined in 20 CFR 416.967(a) except after 30 minutes of sitting; the

claimant would need to stand for a minute or two, without going off-task or

leaving the workstation. The claimant can only frequently reach overhead

and in all other directions, and frequently handle and finger. The claimant

can occasionally climb ramps and stairs, but cannot climb ladders, ropes or

scaffolds. The claimant can occasionally balance, stoop, kneel, crouch or

crawl. The claimant cannot work at unprotected heights, and cannot be

exposed to dangerous, moving, mechanical parts. The claimant can only

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have occasional exposure to vibration and bright light, such as sunlight. The

claimant is limited to simple, routine and repetitive tasks, and simple work-

related decisions, and occasional changes in the work setting. The claimant

can have only occasional interaction with supervisors, coworkers and the

public. The claimant would be off-task 10 percent of the time, in addition

to normal breaks, in an eight-hour workday.

5. The claimant is unable to perform any past relevant work (20 CFR 416.965).

6. The claimant was born on March 10, 1974 and was 44 years old, which is

defined as a younger individual age 18-44, on the date the application was

filed (20 CFR 416.963).

7. The claimant has at least a high school education and is able to communicate

in English (20 CFR 416.964).

8. 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).

9. Considering the claimant’s age, education, work experience, and residual

functional capacity, there are jobs that exist in significant numbers in the

national economy that the claimant can perform (20 CFR 416.969 and

416.969a).

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

Security Act, since October 23, 2018, the date the application was filed (20

CFR 416.920(g)).

(Tr. 26, 29-30, 36, 37, 38).

IV. ISSUES ON APPEAL

On appeal, Plaintiff argues that the ALJ failed to evaluate properly the medical opinion

evidence and failed to develop fully and fairly the medical record in determining her RFC, and

that the ALJ failed to evaluate properly her subjective statements. (Doc. 12, at 2). The

Commissioner maintains that the ALJ properly evaluated Plaintiff’s RFC, that substantial evidence

supports the ALJ’s RFC determination, and that substantial evidence supports the ALJ’s

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determination that Plaintiff’s statements regarding her symptoms were not entirely consistent with

the evidence of record. (Doc. 13, at 6, 13).

V. DISCUSSION

A. Failure to Evaluate Properly Medical Opinion Evidence and Determine RFC

Plaintiff argues that the ALJ’s RFC determination was not supported by any medical

evidence from the relevant period at issue—i.e., her most recent SSI application on October 23,

2018—and that res judicata precluded the ALJ from reconsidering her disability claims on the

merits prior to November 14, 2017.5 (Doc. 12, at 3). Specifically, Plaintiff argues that the ALJ

erred by relying on the medical opinions of Dr. Millard McWhorter from 2013 and Dr. Amy Kayl

from 2015, given that her current claim concerns the issue of Plaintiff’s disability since October

2018, with res judicata precluding adjudication of the period before November 15, 2017. Id.

Plaintiff further argues that, because the ALJ rejected the only medical opinions on Plaintiff’s

functioning that related to the period at issue—leaving a gap in the record concerning Plaintiff’s

ability to engage in exertional activities—the ALJ impermissibly relied on the ALJ’s own lay

interpretation of the clinical evidence instead of requesting a new evaluation from an examining

consultant or taking medical expert testimony from an appropriate specialist regarding Plaintiff’s

functioning. Id. at 4-6. Lastly, Plaintiff argues that the ALJ failed to determine properly Plaintiff’s

mental RFC (1) by considering medical opinions that were provided in 2011, 2013, and 2015, (2)

5 SSI benefits are limited to the date the claim is filed. 20 C.F.R. § 416.335 (“When you file an

application in the month that you meet all the other requirements for eligibility, the earliest month

for which we can pay you benefits is the month following the month you filed the application.”);

20 C.F.R. § 416.501 (“Payment of benefits may not be made for any period that precedes the first

month following the date on which an application is filed or, if later, the first month following the

date all conditions for eligibility are met.”). Thus, the relevant period for Plaintiff's SSI claim

began on October 23, 2018, when she filed her application. Russell v. Astrue, 742 F. Supp. 2d

1355, 1358 n.2 (N.D. Ga. 2010). Plaintiff previously filed applications for SSI benefits on April 4,

2012 and again on August 21, 2015, both of which were denied on October 18, 2013 and November

13, 2017, respectively. (Tr. 146-59, 217-32).

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by relying on the non-examining state agency psychologist who reviewed a limited medical record

when subsequent records documented deterioration of Plaintiff’s functioning, and (3) by not

requesting a psychological consultative examination or at least testimony from a relevant medical

expert on her mental functioning during the period at issue. Id. at 6-9.

The Commissioner contends that Plaintiff fails to show that she met her burden of

providing evidence that she was disabled, that the record contained evidentiary gaps that resulted

in unfairness or clear prejudice, and that the ALJ needed additional information to make an

informed decision. (Doc. 13, at 6).

As an initial matter, the ALJ did not err in considering opinions pre-dating the filing of

Plaintiff’s SSI application in this action. There is no blanket prohibition against an ALJ’s

considering medical evidence that predates the alleged onset date. “As a general matter, ‘[m]edical

opinions that predate the alleged onset of disability are of limited relevance.’ However, they may

be of some relevance in some cases: for example, when they relate to the conditions a claimant

claims are disabling.” Jones v. Comm’r of Soc. Sec., No. 3:16-CV-00671, 2017 WL 4125757, at

*6 (N.D. Ala. Sept. 18, 2017) (quotations omitted) (emphasis in original); see id. (“In this case,

Jones offers no authority for the proposition that considering such evidence automatically requires

reversal, nor would it be appropriate in this case to do so given the evidence considered by the ALJ

tracked the progress of Jones’s diabetes and relationship with Dr. Fabianke.”); Hamlin v. Astrue,

No. 3:07-CV-507, 2008 WL 4371326, at *4 (M.D. Fla. Sept. 19, 2008) (“Although here the

medical records covered a period of time prior to Plaintiff’s alleged onset date, the records do

concern many of the same impairments Plaintiff claims as a basis for disability.”); Ulee v. Kijakazi,

No. 4:20CV137, 2021 WL 4480620, at *3 (N.D. Fla. Sept. 30, 2021). An ALJ must consider “all

evidence in [a claimant’s] case record when [the Commissioner] make[s] a determination or

decision” as to whether the claimant is disabled. 20 C.F.R. § 416.920(a)(3). “Such evidence

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includes evidence that pre- or post-dates the relevant time period.” Rodriguez v. Comm’r of Soc.

Sec., No. 6:20-CV-1368, 2022 WL 35306, at *4 (M.D. Fla. Jan. 4, 2022) (citation omitted); Hearn

v. Berryhill, No. 4:15-CV-2001, 2017 WL 4354888, at *5 (N.D. Ala. Sept. 30, 2017) (“[T]he ALJ

erred in concluding that he could not consider a medical opinion or medical records that predate

an application date (or protective filing date). . . . [O]pinion evidence that predates an alleged onset

date may be relevant to a determination of disability.”) (citations omitted) (citing Douglas v.

Comm’r of Soc. Sec., 486 F. App’x 72, 75 (11th Cir. 2012) (where the Eleventh Circuit found that

the ALJ properly “considered evidence from before and after the relevant period that would have

bearing on [the claimant’s] disability during the relevant time” in determining that the claimant

was not disabled.)).

“Courts within the Eleventh Circuit have found pre-onset date evidence to be significant

so long as such evidence is: 1) within close proximity to the onset date; and 2) relevant to a

claimant’s impairments.” Garrett v. Comm’r of Soc. Sec., 6:16-cv-1516, 2017 WL 1460733, at *3

(M.D. Fla. Mar. 15, 2017), report and recommendation adopted, 2017 WL 1438321 (Apr. 24,

2017). “Moreover, even when an opinion significantly predates a claimant’s alleged onset date

such that the opinion is of limited relevance, courts in this Circuit have required the ALJ to weigh

the opinion.” Nichols v. Comm’r of Soc. Sec., No. 6:16-CV-1819, 2018 WL 746940, at *3 (M.D.

Fla. Feb. 7, 2018) (citing Simpson v. Colvin, No. 2:14-CV-00946, 2015 WL 139329, at *4 (N.D.

Ala. Jan. 12, 2015) (finding that the ALJ's failure to weigh an opinion that predated the alleged

onset date by two-and-a-half years was not harmless because finding that the error was harmless

would have required the court to reweigh the evidence)); Proulx v. Saul, No. 3:19-CV-1302, 2021

WL 941371, at *7 (M.D. Fla. Mar. 12, 2021). Further, “[w]hen evaluating a pending claim for

benefits, an ALJ may consider evidence that was part of the administrative record for a prior

application without reopening the prior decision and running afoul of the concept of administrative

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res judicata.” Hearn, 2017 WL 4354888, at *5. “Administrative res judicata applies when the

agency has made a ‘previous determination or decision . . . about [a claimant’s] rights on the same

facts and on the same issue or issues, and this previous determination or decision [had] become

final by either administrative or judicial action.’” McKinzie v. Comm’r of Soc. Sec., 362 F. App’x

71, 73 (11th Cir. 2010) (citation omitted). “[T]he Eleventh Circuit has held that res judicata does

not attach to cases where ‘the factual time period for [the claimant’s] current application is

different from [the] previous application.’” Griffin v. Astrue, No. 8:11-CV-1524, 2012 WL

3151569, at *8 (M.D. Fla. Aug. 2, 2012), aff’d sub nom. Griffin v. Comm’r of Soc. Sec., 560 F.

App’x 837 (11th Cir. 2014) (citation omitted); Powell v. Astrue, No. 1:12CV02, 2012 WL

5467534, at *3 (M.D. Ala. Nov. 9, 2012) (“In the context of a Social Security application,

administrative res judicata only applies when the time periods at issue have been adjudicated.

When an application for benefits involves an unadjudicated time period, res judicata will not

apply, and the ALJ is not required to give preclusive effect to a prior RFC finding.”); Hearn, 2017

WL 4354888, at *5 (“An ALJ may use evidence contained in a prior administrative record to

identify ‘preliminary facts required to assess rationally the question at issue, i.e., whether [the

claimant] was disabled at the time of the second application.’”) (citation omitted).

Additionally, “[d]icta from an unpublished Eleventh Circuit opinion indicates that an ALJ

is not required to consider evidence that was part of the administrative record for a previous

disability application.” Caudle v. Berryhill, No. 5:16-CV-0472, 2017 WL 4340445, at *4 (N.D.

Ala. Sept. 29, 2017) (citing Luckey v. Astrue, 331 F. A’ppx 634, 640 n. 1 (11th Cir. 2007) (“We

recognize the force of the argument that the ALJ was not required to consider [Dr.] Oatley’s

diagnoses because they pertained only to Luckey’s previous disability application.”).

Consequently, “[u]nder the Luckey dicta, an ALJ seems to have discretion to decide whether to

consider medical evidence that was part of a prior administrative record.” Id. at *4.

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As to the medical opinions of Dr. McWhorter from 2013 and Dr. Kayl from 2015 regarding

Plaintiff’s physical functioning, the ALJ found the following:

However, the undersigned finds the opinion of Dr. Milliard McWhorter somewhat

persuasive. In February 2013, Dr. Milliard McWhorter III found the claimant can

occasionally lift up to ten pounds, walk for ten to 15 minutes in an eight-hour

workday, can occasionally reach, handle, finger, feel, push and pull; can operate

foot controls and balance, but can never climb ramps and stairs, ladders ropes or

scaffolds, stoop, kneel, crouch or crawl, and should have no exposure to

environmental limitations. (C13F) The opinion that the claimant can only

occasionally lift up to ten pounds is supported by the clinical finding that the

claimant has joint pain in multiple sits of her body, chronic back pain, migraine

headaches, carpal tunnel syndrome, and peripheral neuropathy. (C13F/1) It is

consistent with the October 2015 physical exam noting the claimant’s range of

motion was decreased in her cervical and lumbar spines and shoulders. (C24F/6-7)

However, the opinion that the claimant needs a cane to walk is not supported by the

consultative exam in June 2011 noting the claimant ambulated with a normal gait

upon leaving the office, or the February 2019 exam noting the claimant walked with

only a slight limp, and could perform squatting. (C39F/3)

Similarly, the opinion of Dr. Amy Kayl is persuasive. In October 2015, the physical

consultative examiner Dr. Amy Kayl determined that the claimant has a limitation

in standing, and being able to stand continuously in an eight-hour workday; has

limitations in her ability to bend or stoop; that the claimant can only lift and carry

five to ten pounds on a continuous basis. (C24F/8) This opinion is supported by the

exam showing the claimant had difficulty bending over and touching her toes, and

the claimant wore a neck brace, made from a towel at home, and a back brace.

(C24F/6) It is supported by the claimant’s decreased range of motion in the cervical

and lumbar spine. (C24F/5) It is consistent with nerve conduction studies in July

2013 noting sensory motor polyneuropathy. (C15F/2)

(Tr. 34-35).

As to the medical opinions on Plaintiff’s physical functioning that post-date her October

23, 2018 SSI application, the ALJ found the following:

[I]n February 2019, the opinion of the physical consultative Dr. Caleb Yongkuma

changed to less restrictive limitations. In February 2019, Dr. Yongkuma found no

specific restrictions or limitations for sitting, standing, lifting, handling objects,

reading, speaking, writing or hearing. (C39F/4) This opinion is not supported by

the exam showing decreased strength in the hands bilaterally and a decreased range

of motion of the back. (C39F/4) It is not supported by the exam showing the

claimant was walking with a slight limp. (C39F/3) It is not consistent with the nerve

conduction studies in June 2012 showing sensory neuropathy of the legs. (C39F/4)

Because of these inconsistences, the opinion of Dr. Caleb Yongkuma is less

persuasive.

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. . . .

[T]he undersigned finds the opinion of the state agency physical consultant less

persuasive. In February 2019, the state agency physical consultant Dr. Alton James

opined that the claimant can occasionally lift 20 pounds, and frequently lift or carry

10 pounds; that the claimant can sit, stand or walk for six hours in an eight-hour

workday; has limited push or pulling in the upper and lower extremities bilaterally;

can occasionally climb ramps and stairs, and climb ladders, ropes or scaffolds; can

occasionally stoop, kneel, crouch but cannot crawl; can frequently handle and

finger in both arms; and should avoid even moderate exposure to hazards such as

unprotected heights, free standing water and commercial driving. (C10A/12-14)

The opinion that the claimant can lift up to 20 pounds occasionally is not consistent

with the record in May 2015 of a whole body scan finding degenerative activity

involving mostly large joints in the shoulders and the spine. (C23F/26) It is not

consistent with nerve conductions studies in August 2012 reporting bilateral carpal

tunnel syndrome, right worse than left. (C10F/9)

(Tr.34, 35).

As to the mental health opinions, the ALJ found the following:

In terms of mental health opinions, the opinion of the mental consultative examiner

Dr. Randall Green is somewhat persuasive. In June 2011, the psychological

consultative examiner Dr. Randall Green determined that the claimant’s ability to

carry out and remember instructions of a simple, one-step nature is not

compromised, though multi-steps tasks require some degree of supervision.

(C1F/4) He found the claimant’s ability to respond well to coworkers, supervision,

and everyday work pressures is compromised mildly. (C1F/4) The opinion that the

claimant’s ability to carry out and remember instructions of a simple and one-step

nature is supported by the exam indicating that the claimant could do serial 3s, and

spell the word “gold” backwards. (C1F/3) However, the opinion that the claimant’s

ability to respond well to work pressures is only mildly compromised is not

consistent with the claimant’s record that she was arrested in the past, but is evasive

on the timeline or the reason. (C1F/3) Her affect was somewhat restricted, and her

fund of information was below average. (C1F/3)

The opinion of the state agency mental consultants is persuasive, however. In June

2012 and February 2019, the state agency mental consultants Dr. Donald Hinton

and Dr. Harold Veits indicated that the claimant can attend and concentrate for two-

hour periods, and has the ability to understand, remember, and carry out short and

simple instructions. (C1A/7-9; C10A/13-16) This opinion is consistent with the

claimant’s limited fund of information, and being unable to interpret abstract

phrases. (C26F/3) It is consistent with the exam showing the claimant’s level of

functioning to be at the borderline range of intelligence, with poor insight and

judgment. (C26F/3)

The opinion of Dr. Milliard McWhorter is somewhat persuasive as well. In

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February 2013, Dr. Milliard McWhorter found the claimant had marked limitations

in interacting appropriately with the public or supervisors, and carrying out

complex instructions. (C12F) Marked limitations in interacting appropriately is not

consistent with the November 2015 exam noting that the claimant was motivated

and cooperative with the examiner. (C26F/4) She appeared normal and appropriate

for her age. (C26F/3) However, the claimant also appeared restless with standing

and pacing, and she reported feeling depressed with a restricted affect. (C26F/3) A

physical exam in October 2015 also noted the claimant was evasive and did not

cooperate. (C26F/7)

The opinion of the consultative psychologist Dr. Fernelle Warren is persuasive. In

November 2015, the consultative psychologist Dr. Fernelle Warren opined that the

claimant’s ability to function independently is moderately to markedly impaired;

her ability to remember and carry out instructions is mildly to moderately impaired,

and her ability to respond appropriately to supervisors, coworkers, and work

pressures in a work setting is moderately to markedly impaired. (C26F/4) This is

supported by the exam showing the claimant’s motor activity was restless, with a

tense gait, restricted affect and depressed mood. (C26F/3) It is supported by the

exam noting the claimant was unable to recall three objects after a minute delay

with interference. (C26F/3) It is consistent with the June 2011 exam noting her

intelligence was estimated to be in the low average range. (C1F/3)

Finally, the opinion of the state agency mental consultant is less persuasive. In

November 2015, the state agency mental consultant Dr. Peter Sims determined that

the claimant’s final mental impairments were less than severe. (C7A/22) It is not

consistent with the exam showing the claimant’s level of functioning to be at the

borderline range of intelligence, with poor insight and judgment. (C26F/3) It is not

consistent with the November 2015 record indicating the claimant’s responses to

mathematical and serial tasks, memory functions, fund of information, and ability

to think in abstract terms appeared to be consistent with a level of functioning

estimated to be in the borderline range of intelligence. (C26F/3)

(Tr. 35-36).

Plaintiff complains that the ALJ rejected the “only” medical opinions on Plaintiff’s

physical and mental functioning that related to the period from Plaintiff’s application date through

the date of the ALJ’s decision, which left “a significant gap in the record concerning Plaintiff’s

ability to engage in exertional activities that she could not fill based on [the ALJ’s] own lay

interpretation of the evidence, and argues that the “ALJ should have further developed the record

by requesting medical opinion(s) on Ms. Taylor’s physical [and mental] functioning, there being

none available concerning Plaintiff’s ability to work since October 2018 that the ALJ found

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credible.” (Doc. 12, at 4, 6-7).

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 v. Comm’r, Soc. Sec. Admin., 542 F. App’x 890, 891-92

(11th Cir. 2013).

“[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). An ALJ

“is under no obligation to obtain or adopt a medical source statement’s findings as [the ALJ’s]

RFC finding.” Smith v. Comm’r, Soc. Sec. Admin., No. 2:15-CV-00964, 2017 WL 167322, at *6

(N.D. Ala. Jan. 17, 2017); Rodriguez v. Comm’r of Soc. Sec., No. 618CV503, 2018 WL 7113871,

at *2 (M.D. Fla. Dec. 27, 2018), report and recommendation adopted, No. 618CV503, 2019 WL

316051 (M.D. Fla. Jan. 24, 2019) (“[T]here is no requirement that an ALJ base an RFC finding on

a medical source’s opinion.”). “To find that an ALJ’s RFC determination is supported 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); Green v. Soc. Sec. Admin., 223 F. App’x 915, 924

(11th Cir. 2007) (“The ALJ did not substitute his judgment for that of Dr. Bryant; rather, he

determined that Dr. Bryant's opinion was inconsistent with objective medical evidence in the

record.”). “[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

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physician.” Id. at 1055-56. An ALJ “is not required to specifically address every aspect of an

opinion or every piece of evidence in the record.” Coley v. Comm’r of Soc. Sec., 771 F. App’x 913,

917 (11th Cir. 2019); Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005) (“[T]here is no rigid

requirement that the ALJ specifically refer to every piece of evidence in his decision, so long as

the ALJ’s decision . . . is not a broad rejection which is ‘not enough to enable [the district court . .

.] to conclude that [the ALJ] considered [the claimant’s] medical condition as a whole.’”) (citation

omitted).

“[A] hearing before an ALJ is not an adversary proceeding,” and “the ALJ has a basic

obligation to develop a full and fair record.” Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir.

1997).6 “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 v.

Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003); see 20 C.F.R. § 416.912(a) (stating that “you

have to prove to us that you are . . . disabled. You must inform us about or submit all evidence

known to you that relates to whether or not you are . . . disabled . . . . This duty is ongoing and

requires you to disclose any additional related evidence about which you become aware.”). “There

must be a showing that the ALJ’s failure to develop the record led to evidentiary gaps in the record,

which resulted in unfairness or clear prejudice, before the court will remand a case for further

development of the record.” Rodriguez-Torres v. Saul, No. 8:18-CV-1982, 2019 WL 4267955, at

*4 (M.D. Fla. Sept. 10, 2019), aff’d sub nom. Torres v. Comm’r of Soc. Sec., 819 F. App’x 886

(11th Cir. 2020). “At a minimum, clear prejudice ‘requires a showing that the ALJ did not have

6 “The basic duty to develop the record rises to a ‘special duty’ where the claimant has not waived

his or her right to representation and is not represented during the administrative proceedings.”

Rivera Perez v. Comm’r of Soc. Sec., No. 6:20-CV-79, 2021 WL 289052, at *2 n.3 (M.D. Fla. Jan.

28, 2021) (citing Brown v. Shalala, 44 F.3d 931, 934-35 (11th Cir. 1995)). Here, Plaintiff was

represented during the administrative proceedings. (Tr. 67-102). Thus, the ALJ had only a basic

duty to develop the record.

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all of the relevant evidence before him in the record . . . or that the ALJ did not consider all of the

evidence in the record in reaching his decision.’” Rivera Perez v. Comm’r of Soc. Sec., No. 6:20-

CV-79, 2021 WL 289052, at *3 (M.D. Fla. Jan. 28, 2021) (quoting Kelly v. Heckler, 761 F.2d

1538, 1540 (11th Cir. 1985)).

Here, the evidence before the ALJ was sufficient for the ALJ to assess Plaintiff’s RFC. The

ALJ properly considered and weighed the medical opinions that pre- and post-dated Plaintiff’s

application, and such consideration did not create an evidentiary gap that caused prejudice.

Plaintiff does not assert any specific challenges to the medical opinions themselves or cite to any

inconsistencies between the opinions and any other medical evidence. Nor does Plaintiff allege

that any other medical records existed that the ALJ could have obtained that would have made any

difference in the outcome of her case. “To the extent Plaintiff disagrees with the ALJ’s

interpretation of that evidence, that is not a ground for remand.” Horne v. Comm’r of Soc. Sec.,

No. 2:20-CV-181-JLB-MRM, 2021 WL 3023679, at *5 (M.D. Fla. June 28, 2021), report and

recommendation adopted, No. 2:20-CV-181-JLB-MRM, 2021 WL 3022727 (M.D. Fla. July 16,

2021) (citing Sarria v. Comm’r of Soc. Sec., 579 F. App’x 722, 724 (11th Cir. 2014)); Lanier v.

Colvin, No. CV414-004, 2015 WL 3622619, at *1 (S.D. Ga. June 9, 2015) (“The fact that Plaintiff

disagrees with the ALJ’s decision, or that there is other evidence in the record that weighs against

the ALJ’s decision, does not mean that the decision is unsupported by substantial evidence.”)

(citing Crawford, 363 F.3d at 1158-59).

Plaintiff attempts to demonstrate prejudice by arguing that the ALJ should have sought

additional medical opinion evidence or ordered another consultative examination, despite

Plaintiff’s undergoing a physical consultative examination in February 2019 (Tr. 1346-1349). As

stated previously, an ALJ’s RFC determination is not required to be based upon a doctor’s opinion.

Moore, 649 F. App’x at 945; Smith, 2017 WL 167322, at *6; Rodriguez, 2018 WL 7113871, at *2;

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Eaton, 180 F. Supp. 3d at 1055-56. The “[o]rdering [of] a consultative examination is a

discretionary matter for the ALJ and would be sought ‘to try to resolve an inconsistency in the

evidence or when the evidence as a whole is insufficient to support a determination or decision’

on the claim.” Banks for Hunter v. Comm’r, Soc. Sec. Admin., 686 F. App'x 706, 713 (11th Cir.

2017) (quoting 20 C.F.R. § 416.919a(b)). Here, the ALJ did, in fact, order a physical consultative

examination, which Plaintiff underwent in February 2019. (Tr. 1346-1349). Dr. Caleb Yongkuma

found that Plaintiff’s physical examination and range of motion evaluation were unremarkable,

and concluded that Plaintiff had no specific restrictions or limitations, including sitting, standing,

lifting, handling objects, reading, speaking, writing or hearing. (Tr. 1349). The ALJ found Dr.

Yongkuma’s opinion was “less persuasive,” stating the following:

This opinion is not supported by the exam showing decreased strength in the hands

bilaterally and a decreased range of motion of the back. (C39F/4) It is not supported

by the exam showing the claimant was walking with a slight limp. (C39F/3) It is

not consistent with the nerve conduction studies in June 2012 showing sensory

neuropathy of the legs. (C39F/4) Because of these inconsistences, the opinion of

Dr. Caleb Yongkuma is less persuasive.

(Tr. 34).

Although Plaintiff may disagree with the consultative examiner’s opinion, she is not

entitled to a “do-over” until she gets one that she likes. “A claimant cannot show prejudice by

speculating that she would have benefitted from a more comprehensive hearing.” McCabe v.

Comm'r of Soc. Sec., 661 F. App’x 596, 599 (11th Cir. 2016). At the hearing, Plaintiff had the

burden to prove that she was disabled and entitled to receive Social Security benefits. Doughty v.

Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001). “The ALJ ‘has a duty to develop the record where

appropriate but is not required to order a consultative examination as long as the record contains

sufficient evidence for the [ALJ] to make an informed decision.’” Castle v. Colvin, 557 F. App’x

849, 853 (11th Cir. 2014) (citation omitted).

The medical record before the ALJ included updated treatment records for both Plaintiff’s

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mental and physical conditions (Tr. 1271-1430); the consultative examination report and opinion

from Dr. Yongkuma (Tr. 1346-1349); the prior administrative medical findings of the State agency

medical and psychiatric consultants (Tr. 262-280); Plaintiff’s disability reports (Tr. 519-559, 588-

595); and Plaintiff’s hearing testimony (Tr. 74-92). Although the ALJ declined to find some of the

prior administrative medical findings or Dr. Yongkuma’s opinion to be fully persuasive, Plaintiff

does not cite to specific findings or opinions demonstrating that Plaintiff had additional limitations

beyond those the ALJ assessed. In fact, the ALJ’s determination that this evidence was not

completely persuasive benefited Plaintiff, as the ALJ assessed more limitations than others did.

(Tr. 29-30, 33-34). The ALJ also considered that the new evidence demonstrated that Plaintiff’s

condition had “worsened in the elapsed time from the date of the unfavorable decisions to the filing

date of the subsequent application for disability,” and, as a result, imposed additional limitations.

(Tr. 29-30, 33-34, 151-52, 226).

Plaintiff next argues that, in determining Plaintiff’s mental RFC, the ALJ improperly relied

on the opinion of a non-examining state agency psychologist, Harold Veits, M.D., who only

considered approximately three months of records—from October 2018 to January 29, 2019—but

did not review the treatment records produced after he issued his opinion. (Doc. 12, at 7). Plaintiff

also maintains that the ALJ did not evaluate Dr. Veits’s prior administrative medical findings in

light of the updated treatment notes. Id. at 7-8. Plaintiff contends that because the record does not

contain any opinions from an examining source regarding Plaintiff’s mental functioning during

the period at issue, the ALJ should have requested a psychological consultative examination or at

least testimony from a relevant medical expert on the subject. Id. at 8. Plaintiff asserts that the

record shows that mental examinations from February 12, 2019 to October 2019 reflect that

Plaintiff experienced sleep disturbances, easy distractibility, fair insight and judgment, fair

appetite, irritability, lethargy, and depressed mood. Id. at 7-8; Tr. 1361, 1363-65, 1369, 1372-73,

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1378, 1428-30.

However, the ALJ was not confined to considering only Dr. Veits’ opinion. The ALJ also

considered the medical records post-dating Dr. Veits’ opinion. The ALJ considered Plaintiff’s

testimony at the hearing that she had “difficulty understanding, remembering and reading

information”; that she felt “overwhelmed and angry, and socially isolated”; that her pain affected

“her ability to concentrate and focus” and that she “reported a history of seeking treatment for an

altered mental status and confusion”; and that a case worker “takes her shopping for groceries once

a month.” (Tr. 28-29). Elsewhere in the ALJ’s decision, the ALJ noted that “[i]n December 2018,

the claimant reported symptoms of tearfulness, sadness, depression and having no interests”; that

“[s]he was diagnosed with Major Depressive Disorder”; and that “[i]n February 2019, the claimant

sought treatment for depression, having no interests and deriving no pleasure from any activities”

and “she reported trauma from sexual abuse as a child.” (Tr. 32, 1336-37). The ALJ concluded,

“Because of the claimant’s severe mental health impairments, she is limited to simple and routine

tasks, simple work-related decisions, and occasional changes in the work setting.” (Tr. 32). The

ALJ also considered medical records, stating that “[i]n September 2019, the claimant reported

doing well on current psychotropic medications, denying any side effects, and reporting improved

symptoms, rating her depression a three out of ten in severity, and endorsed adequate energy

levels.” (Tr. 32-33, 1352). The ALJ further considered that “[i]n October 2019, the claimant

reported confusion, stating she did not know where she was or who any of the people around her

were; however, when questioned about her medications, she angrily reminded the provider the last

time she was in the hospital that she was out of her medications.” (Tr. 33, 1403).

Here, the record as a whole is neither incomplete nor inadequate. Instead, the record was

sufficient for the ALJ to evaluate Plaintiff’s impairments and functional ability, and it does not

show the kind of gaps in the evidence necessary to demonstrate prejudice. Dyer v. Barnhart, 395

19

F.3d 1206, 1210 (11th Cir. 2005) (“‘If the Commissioner’s decision is supported by substantial

evidence, this Court must affirm, even if the proof preponderates against it.’ ‘We may not decide

facts anew, reweigh the evidence, or substitute our judgment for that of the [Commissioner.]’”

(citation omitted).

B. Failure to Evaluate Properly Plaintiff’s Subjective Statements

Plaintiff contends that the ALJ’s evaluation of Plaintiff’s subjective statements largely

focused on records that predated October 23, 2018 and that, other than the ALJ’s conclusory or

“boilerplate” finding that Plaintiff’s allegations were not supported by the evidence, the ALJ made

no findings regarding her subjective statements relating to her physical impairments. (Doc. 12, at

12). Plaintiff also argues that Plaintiff gave insufficient reasons for discounting Plaintiff’s

statements regarding her mental impairments from the relevant period. Id. at 13. The

Commissioner argues that, consistent with the regulations, the ALJ properly determined that

Plaintiff’s statements regarding the intensity, persistence, and the functionally limiting effects of

her alleged symptoms were not entirely consistent with the medical evidence and other evidence

in the record for the reasons explained in the ALJ’s decision, and that substantial evidence supports

this determination. (Doc. 13, at 13).

In determining whether a claimant is disabled, the claimant’s symptoms, including pain,

are considered to the extent that they are reasonably consistent with objective medical evidence

and other evidence. 20 C.F.R. §§ 404.1529(a), 416.929(a). However, a claimant’s statements about

pain or symptoms alone are not enough to establish the existence of a physical or mental

impairment or disability. Id.; SSR 16-3p, 2017 WL 5180304, at *2 (S.S.A. Oct. 25, 2017);

Wimberley v. Berryhill, No. CV 17-00558, 2019 WL 1418056, at *13 (S.D. Ala. Mar. 29, 2019)

(“The ALJ is not required to accept a claimant’s allegations of pain or other symptoms.”). The

regulations set out a two-step process for the evaluation of subjective complaints, such as pain. Id.;

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SSR 16-3p, 2017 WL 5180304, at *3. To establish a disability based on testimony of pain and

other symptoms, the claimant must provide evidence of an underlying medical condition and either

(1) objective medical evidence confirming the severity of the alleged symptoms or pain, or (2)

evidence establishing that the objectively determined medical condition could be reasonably

expected to give rise to the alleged symptoms or pain. Wilson v. Barnhart, 284 F.3d 1219, 1225

(11th Cir. 2002); 20 C.F.R. §§ 404.1529(a)-(b), 416.929(a)-(b); SSR 16-3p, 2017 WL 5180304, at

*3. “Consideration of a claimant’s symptoms thus involves a two-step process, wherein the

Commissioner first considers whether an underlying medically determinable physical or mental

impairment exists that could reasonably be expected to produce the claimant's symptoms, such as

pain.” Denny v. Kijakazi, No. 8:20-CV-1573, 2022 WL 831901, at *7 (M.D. Fla. Mar. 21, 2022);

20 C.F.R. §§ 404.1529(a)-(b), 416.929(a)-(b); SSR 16-3p, 2017 WL 5180304, at *3.

Once an underlying physical or mental impairment that could reasonably be expected to

produce the claimant’s symptoms, such as pain, is established, the ALJ must then consider all of

the evidence in the record to evaluate the intensity and persistence of those symptoms to determine

the extent to which the symptoms limit the claimant’s capacity for work. SSR 16-3p, 2017 WL

5180304, at *3-4; 20 C.F.R. §§ 404.1529(a)-(b), 416.929(a)-(b); Lopez v. Comm’r of Soc. Sec.

Admin., No. 6:19-CV-00986, 2020 WL 6203876, at *6 (N.D. Ala. Oct. 22, 2020). In doing so,

SSR 16-3p and the regulations require an ALJ to consider certain factors, including: (1) daily

activities; (2) location, duration, frequency, and intensity of pain or other symptoms; (3)

precipitating and aggravating factors; (4) the type, dosage, effectiveness, and side effects of any

medication taken; (5) treatment, other than medication, to relieve pain or other symptoms; (6) any

measures used to relieve pain or other symptoms; and (7) any other factors concerning functional

limitations and restrictions due to pain or other symptoms. SSR 16-3p, 2017 WL 5180304, at *8-

9. If the ALJ discredits Plaintiff’s subjective statements, the ALJ “must articulate explicit and

21

adequate reasons for doing so.” Foote v. Chater, 67 F.3d 1553, 1561-62 (11th Cir. 1995).

“Subjective complaint credibility is the province of the ALJ.” Williams v. Kijakazi, No. 2:20-CV-

277, 2022 WL 736260, at *2 (M.D. Ala. Mar. 10, 2022) (citing Mitchell v. Comm’r, Soc. Sec.

Admin., 771 F.3d 780, 782 (11th Cir. 2014)).7

The ALJ provided a detailed summary of Plaintiff’s subjective complaints, as follows:

The claimant alleged disability based on a number of physical and mental

impairments. (C2E/2) At the hearing, the claimant testified to suffering from

multiple neuropathy in both legs, and bilateral carpal tunnel syndrome, with the

right arm worse than the left. She has degenerative activity in the large joints

including the shoulder and spine. She also alleged generalized anxiety disorder,

major depression disorder and borderline intellectual functioning. She described

7 In Huigens v. Soc. Sec. Admin., Comm’r, 718 F. App’x 841 (11th Cir. 2017) the Eleventh Circuit

stated:

SSR 16-3p rescinded the Social Security Administrations prior rule for subjective

symptom evaluation, SSR 96-7p, to the extent that it “eliminated the use of the term

‘credibility’ in the sub-regulatory policy and stressed that when evaluating a

claimant's symptoms the adjudicator will ‘not assess an individual's overall

character or truthfulness’ but instead ‘focus on whether the evidence establishes a

medically determinable impairment that could reasonably be expected to produce

the individual's symptoms and given the adjudicator's evaluation of the individual's

symptoms, whether the intensity and persistence of the symptoms limit the

individual's ability to perform work-related activities....’”

Id. at 848; Hartley v. Kijakazi, No. 3:20-CV-1266, 2021 WL 5881671, at *3 (M.D. Fla. Dec. 13,

2021) (“‘The change in wording is meant to clarify that [ALJs] aren’t in the business of impeaching

claimants’ character; obviously [ALJs] will continue to assess the credibility of pain assertions by

applicants, especially as such assertions often cannot be either credited or rejected on the basis of

medical evidence.’”) (quoting Cole v. Colvin, 831 F.3d 411, 412 (7th Cir. 2016) (emphasis in

original)); Pettigrew v. Berryhill, No. 1:17-CV-01118, 2018 WL 3104229, at *14 n.14 (N.D. Ohio

June 4, 2018), report and recommendation adopted, No. 1:17CV1118, 2018 WL 3093696 (N.D.

Ohio June 22, 2018) (“While the court applies the new SSR, it declines to engage in verbal

gymnastics to avoid the term credibility where usage of the term is most logical. Furthermore,

there is no indication that the voluminous case law discussing and applying the credibility or

symptom analysis governed by SSR 96-7p has been invalidated by SSR 16-3p.”); Cook v. Comm’r

of Soc. Sec., No. 1:19-CV-1068, 2020 WL 7253307, at *7 (S.D. Ohio Dec. 10, 2020), report and

recommendation adopted, No. 1:19-CV-1068, 2021 WL 22522 (S.D. Ohio Jan. 4, 2021) (“The

elimination of the word ‘credibility’ from SSR 16-3p is semantically awkward in applying prior

case law, insofar as virtually all of the case law interpreting the former SSR 96-7p uses the

catchphrase ‘credibility determination.’ Nevertheless, the essence of the regulatory framework

remains unchanged. Therefore, courts agree that the prior case law remains fully applicable to the

renamed ‘consistency determination’ under SSR 16-3p, with few exceptions.”).

22

symptoms of everyday depression, feeling overwhelmed and easily agitated. She

has a case worker who assists her with driving her for shopping. According to the

claimant, her medical problems began after slipping on the job and injuring her

lower back and head; the claimant was also involved in two motor vehicle incidents.

(C27F/2)

(Tr. 30). In evaluating Plaintiff’s subjective statements, 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. 32).

Although Plaintiff contends that boilerplate language was used in the ALJ’s evaluation of

Plaintiff’s subjective statements, “this is standard language,” which “directly addresses the

Eleventh Circuit’s pain standard; it is not improper on its face if supported by substantial

evidence.” Martinez v. Comm’r of Soc. Sec., No. 6:18-CV-1339, 2019 WL 13072396, at *4 (M.D.

Fla. July 22, 2019). “[T]here is no requirement that the ALJ explicitly discuss each of the seven

factors.” Majkut v. Astrue, No. 8:07-CV-1828, 2009 WL 860623, at *14 (M.D. Fla. Mar. 30, 2009),

aff’d sub nom. Majkut v. Comm’r of Soc. Sec., 394 F. App’x 660 (11th Cir. 2010)8; Tibbetts v.

Comm’r of Soc. Sec., No. 2:20-CV-872, 2021 WL 6297530, at *15 (M.D. Fla. Dec. 21, 2021),

report and recommendation adopted, No. 2:20-CV-872, 2022 WL 61217 (M.D. Fla. Jan. 6, 2022)

(“[W]hen the ALJ conducts the subjective symptom evaluation ‘there is no rigid requirement that

the ALJ specifically refer to every piece of evidence in his decision, so long as the ALJ’s decision

enables the district court to conclude that the ALJ considered [the claimant’s] medical condition

as a whole.’ To be sure, the ALJ was required to consider all of the evidence presented, including

8 Although the court there was referring to the seven factors in SSR 96-7p, those factors are

identical to the seven listed in SSR 16-3p. See SSR 96-7P, 1996 WL 374186, at *3 (S.S.A. July 2,

1996).

23

Plaintiff's own description of her daily activities, see 20 C.F.R. § 404.1529(c)(3)[;] however, the

ALJ was not required to expressly discuss it.”) (citations omitted).

In finding Plaintiff’s subjective statements not entirely consistent with the other evidence

in the record, the ALJ properly considered the objective clinical findings in physical and mental

treatment notes and consultative examinations from both before and after the alleged onset date;

the medical opinion evidence and prior administrative medical findings from both before and after

the alleged onset date; adult function reports; medical treatment history; the fact that in April 2017

Plaintiff stopped attending mental health treatment because she did not like that providers asked

her “the same questions” each time; and that in September 2019 Plaintiff “reported doing well on

current psychotropic medications, denying any side effects, and reporting improved symptoms,

rating her depression a three out of ten in severity, and endorsed adequate energy levels.” (Tr. 28-

36, 1352). The ALJ also noted that “[i]n October 2019, the claimant reported confusion, stating

she did not know where she was or who any of the people around her were; however, when

questioned about her medications, she angrily reminded the provider the last time she was in the

hospital that she was out of her medications.” (Tr. 33, 1403).

Accordingly, based upon the foregoing, substantial evidence supports the ALJ’s

determination that Plaintiff's statements regarding her pain and other symptoms were not entirely

consistent with the evidence of record. Further, the ALJ adequately articulated reasons for not fully

crediting Plaintiff's statements about her pain and other symptoms, which specifically included a

discussion of the objective medical evidence that was inconsistent with Plaintiff's testimony about

the severity of her alleged symptoms. Thus, the ALJ did not err in evaluating Plaintiff's allegations

of pain and other subjective symptoms, and Plaintiff's claim fails. Glover v. Saul, No. 3:20-CV-

05625, 2021 WL 5033974, at *9-10 (N.D. Fla. Oct. 18, 2021) (citing the ALJ’s discussion of the

medical record, the court found that the ALJ articulated explicit and adequate reasons for

24

discrediting plaintiff’s testimony); Wimberley, 2019 WL 1418056, at *13-14 (same).

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 25th day of March, 2022.

/s/ Susan Russ Walker

Susan Russ Walker

United States Magistrate Judge

25