Fulton v. Kijakazi (CONSENT)

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

EASTERN DIVISION

KATHY FULTON, )

)

Plaintiff, )

)

v. ) Case No. 3:20-cv-782-CWB

)

KILOLO KIJAKAZI,1 )

Acting Commissioner of )

Social Security, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

I. Introduction and Administrative Proceedings

Kathy Fulton (“Plaintiff”) filed an application for Disability Insurance Benefits under

Title II on April 10, 2018, wherein she alleged a disability onset of December 1, 2016 due to

bipolar disorder and generalized anxiety disorder. (Tr. 14, 63-64, 70).2 The claim was denied at

the initial level on June 5, 2018, and Plaintiff requested de novo review by an administrative law

judge (“ALJ”). (Tr. 14, 70, 76, 82-84). The ALJ heard the case on November 13, 2019, at which

time testimony was given by Plaintiff (Tr. 14, 30-56) and by a vocational expert (Tr. 56-62).

The ALJ took the matter under advisement and issued a written decision on January 3, 2020 that

found Plaintiff not disabled. (Tr. 14-24). The ALJ’s written decision contained the following

enumerated findings:

1 Kilolo Kijakazi became Acting Commissioner for the Social Security Administration on

July 9, 2021 and is automatically substituted as a party pursuant to Fed. R. Civ. P. 25(d).

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

1. Ms. Fulton last met the insured status requirements of the Social Security Act

on September 30, 2017 (Exhibit C5D/1).

2. Ms. Fulton did not engage in substantial gainful activity during the period from

her alleged onset date of December 1, 2016 through her date last insured of

September 30, 2017 (20 CFR 404.1571 et seq.).

3. Through the date last insured, the claimant had the following severe

impairments: Bipolar disorder and generalized anxiety disorder (GAD) (20

CFR 404.1520(c)).

4. Through the date last insured, the claimant did not have an impairment or

combination of impairments that met or medically equaled the severity of one

of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR

404.1520(d), 404.1525, 404.1526).

5. After careful consideration of the entire record, I found that, through the date

last insured, Ms. Fulton retained the residual functional capacity (RFC) to

perform a full range of work at all exertional levels. Ms. Fulton had significant

nonexertional limitations. Ms. Fulton could perform simple, routine, and

repetitive tasks, but not at a production-rate pace as would be found in

assembly-line work. She could use judgment for making and dealing with

changes in work setting by making simple work-related decisions. She could

occasionally interact with supervisors, co-workers, and the public. She could

deal with occasional changes in work setting, again via simple decision-making.

She could occasionally climb ramps and stairs. She could not climb ladders,

ropes, or scaffolds. Ms. Fulton could not operate a motor vehicle as part of job

duties. She could not work around moving mechanical parts or at unprotected

heights.

6. Through the date last insured, the claimant was unable to perform any past

relevant work (20 CFR 404.1565).

7. The Act identified Ms. Fulton, born on May 15, 1968, as a younger individual

age 45-49, on her date last insured (20 CFR 404.1563).

8. Ms. Fulton has at least a high school education and is able to communicate in

English (20 CFR 404.1564).

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

because the RFC finding limited Ms. Fulton to unskilled work.

10. Through the date last insured, considering Ms. Fulton’s age, education, work

experience, and residual functional capacity, jobs that existed in significant

numbers in the national economy that she could have performed (20 CFR

404.1569 and 404.1569(a)).

11. I found Ms. Fulton not disabled, as defined in the Social Security Act, at any

time from December 1, 2016, her alleged onset date, through September 30,

2017, her date last insured (20 CFR 404.1520(g)).

(Tr. 17, 18, 19, 20, 22, 23).

On August 24, 2020, the Appeals Council denied Plaintiff’s request for review (Tr. 1-5),

thereby rendering the ALJ’s decision the final decision of the Commissioner. See, e.g., Chester v.

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

On appeal, Plaintiff asks the court to reverse the final decision and to award benefits or,

alternatively, to remand the case for a new hearing and further consideration. (Doc. 1 at pp. 1-2;

Doc. 18 at p. 17). As contemplated by 28 U.S.C. § 636(c) and Rule 73 of the Federal Rules of

Civil Procedure, the parties have consented to entry of final judgment by a United States Magistrate

Judge (Docs. 8 & 9), and the undersigned finds that the case is now ripe for review pursuant to

42 U.S.C. § 405(g). Upon consideration of the parties’ submissions, the relevant law, and the

record as a whole, the court concludes that the final 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. Assuming the proper

legal standards were applied by the ALJ, the court is required to treat the ALJ’s findings of fact as

conclusive so long as they are 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 thus may reverse the ALJ’s decision only if it is convinced that the

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

applied. See 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). Despite the deferential nature of its

review, the court must look beyond those parts of the record that support the decision, must view

the record in its entirety, and must take account of evidence that detracts from the evidence relied

on in the decision. See Hillsman v. Bowen, 804 F.2d 1179, 1180 (11th Cir. 1986); see also Walker

v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).

To qualify for disability benefits and establish entitlement for a period of disability, a

person must be unable to:

engage in any substantial gainful activity by reason of any medically determinable

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

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

months.

42 U.S.C. § 423(d)(1)(A).3 To make such a determination, the ALJ 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

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. § 423(d)(3).

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

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

McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).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); Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003).

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

burden of proof from step one through step four. Id. 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.

In order to assess 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 so, 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

4 McDaniel is a Supplemental Security Income case. Nonetheless, the same sequence applies to

claims for disability insurance benefits brought under Title II. SSI cases arising under Title XVI

therefore 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.”).

the number of jobs realistically available to an individual, and combinations of these factors yield

a statutorily-required finding of “Disabled” or “Not Disabled.” Id. at 1240.

III. Issues on Appeal

Plaintiff raises two issues on appeal: (1) whether the ALJ properly evaluated the medical

opinions of Shawn Harvey, M.D., in assessing Plaintiff’s mental RFC; and (2) whether the ALJ

properly evaluated the subjective statements of Plaintiff and Plaintiff’s mother. (Doc. 18 at p. 2).

IV. Discussion

A. Failure to Properly Evaluate the Medical Opinion of Dr. Shawn Harvey

Plaintiff contends that the ALJ’s decision does not properly articulate how the ALJ

considered the consistency and supportability of the medical opinion of Dr. Harvey, the treating

board-certified psychiatrist, along with the other factors under 20 C.F.R. § 404.1520c(a), (c), in

determining the persuasiveness of that opinion. (Doc. 18 at p. 10). In response, the Commissioner

contends that Plaintiff failed to meet her burden of proving that she was disabled, as Plaintiff fails

to cite evidence during the relevant period of December 1, 2016 to September 20, 2017 that

supports and is consistent with Dr. Harvey’s opinion from August 19, 2019. (Doc. 21 at pp. 6-8).

Because Plaintiff’s claim was filed on April 10, 2018 (Tr. 14), review must be guided by

the revised regulations applicable to claims filed on or after March 27, 2017. See 82 FR 5844-01,

2017 WL 168819 (Jan. 18, 2017); 20 C.F.R. § 404.1520c. The revised regulations no longer use

the phrase “treating source,” but instead use “your medical source(s).” See 20 C.F.R. § 404.1520c;

Nix v. Saul, No. 4:20-CV-00790, 2021 WL 3089309, at *5 (N.D. Ala. July 22, 2021). For claims

governed by the revised regulations, the agency thus “will not defer or give any specific evidentiary

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

finding(s), including those from [the claimant’s own] medical sources.” 20 C.F.R. § 404.1520c(a);

Harner v. Soc. Sec. Admin., Comm’r, 38 F.4th 892, 898 (11th Cir. 2022). “Further, the regulations

governing claims filed on or after March 27, 2017, no longer mandate particularized procedures

that the adjudicator must follow in considering opinions from treating sources (e.g., requirement

that adjudicators must ‘give good reasons’ for the weight given a treating source opinion).” Nix,

2021 WL 3089309, at *6 (citing 20 C.F.R. § 404.1520c(b)). Instead, the “new regulations require

an ALJ to apply the same factors when considering the opinions from all medical sources.” Simon

v. Kijakazi, No. 8:20-CV-1650, 2021 WL 4237618, at *3 (M.D. Fla. Sept. 17, 2021) (emphasis in

original) (citing 20 C.F.R. § 404.1520c(a)).

Stated differently, in evaluating the persuasiveness of the medical opinion(s) or prior

administrative medical finding(s), “[the agency] will consider those medical opinions or prior

administrative medical findings from that medical source together” using the following factors:

(1) supportability; (2) consistency; (3) relationship with the claimant; (4) specialization; and (5)

other factors that “tend to support or contradict a medical opinion or prior administrative medical

finding.” 20 C.F.R. § 404.1520c(a), (c). “The most important factors … [used to] evaluate the

persuasiveness of medical opinions and prior administrative medical findings are supportability ...

and consistency.” 20 C.F.R. § 404.1520c(a), (b)(2); Simon, 2021 WL 4237618, at *3. Therefore,

“the ALJ must explain how he or she considered the supportability and consistency factors.” Wynn

v. Kijakazi, No. 8:20-CV-2862, 2022 WL 1115296, at *4 (M.D. Fla. Apr. 14, 2022). “The ALJ

must explain in his decision how persuasive he finds a medical opinion and/or a prior

administrative medical finding based on these two factors.” Nix, 2021 WL 3089309, at *6 (citing

20 C.F.R. § 404.1520c(a)-(c)). “However, the ALJ need not use any magic words in discussing

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

the opinion is consistent with other evidence of record.” Thaxton v. Kijakazi, No. 1:20-CV-00616,

2022 WL 983156, at *8 (M.D. Ala. Mar. 30, 2022); Williamson v. Kijakazi, No. 2:20-CV-772,

2022 WL 2257050, at *3 (M.D. Ala. June 23, 2022). Moreover, “‘[t]he ALJ may but is not

required to explain how he considered the other remaining factors.’” Id. at *4 (citation omitted);

20 C.F.R. § 404.1520c(b)(2). And the ALJ is “not required to articulate how [he] considered

evidence from nonmedical sources.” 20 C.F.R. § 404.1520c(d). Further, “[t]he ALJ is under no

obligation to ‘bridge’ every piece of evidence he finds inconsistent with a specific opinion. ...

Nothing requires the ALJ to discuss every piece of evidence so long as the decision does not

broadly reject evidence in a way that prevents meaningful judicial review.” Gogel v. Comm’r of

Soc. Sec., No. 2:20-CV-366, 2021 WL 4261218, at *9 (M.D. Fla. Sept. 20, 2021) (citations

omitted).

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)

(“Your residual functional capacity is the most you can still do despite your limitations.”). “[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); Hollingsworth v.

Comm’r of Soc. Sec., 846 F. App’x 749, 753 (11th Cir. 2021) (“A claimant’s RFC is a matter

reserved for the ALJ’s determination, and while a physician’s opinion on the matter is considered,

it is not dispositive.”); Frank v. Comm’r of Soc. Sec., No. 2:20-CV-962, 2022 WL 598036, at *8

(M.D. Fla. Feb. 10, 2022), report and recommendation adopted, No. 2:20-CV-962, 2022 WL

596833 (M.D. Fla. Feb. 25, 2022) (“[T]here is no requirement that an ALJ base the RFC finding

on a medical source’s opinion.”); Tolbert v. Kijakazi, No. 3:21-CV-33, 2022 WL 4591646, at *2

(M.D. Ala. Sept. 29, 2022) (“An ALJ may ‘distill a claimant’s RFC from an amalgamation of the

record as a whole, without requiring a specific medical opinion to articulate a specific functional

limitation.’”) (citation omitted).

“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). Although an RFC determination must be supported by substantial evidence,

the ALJ “is not required to specifically address every aspect of an opinion or every piece of

evidence in the record” in order for the determination to be affirmed. 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). Moreover, “to find that the ALJ’s RFC assessment is

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

the assessment of an examining or treating physician.” Smoke v. Kijakazi, No. CV 21-0206,

2022 WL 721532, at *4 (S.D. Ala. Mar. 9, 2022).

“A claimant must have insured status based on employment earnings in order to qualify for

disability and DIB.” Thomas-Joseph v. Comm’r of Soc. Sec., No. 21-11020, 2022 WL 1769134,

at *1 (11th Cir. June 1, 2022). To be eligible for disability insurance benefits, “a claimant must

demonstrate a disability on or before the last date on which he was insured.” Caces v. Comm’r,

Soc. Sec. Admin., 560 F. App’x 936, 939 (11th Cir. 2014) (citing Moore v. Barnhart, 405 F.3d

1208, 1211 (11th Cir. 2005)); 42 U.S.C. § 423(a)(1)(A), (c)(1); 20 C.F.R. § 404.131 (“To establish

a period of disability, you must have disability insured status[.]”). Because Plaintiff’s date last

insured was September 30, 2017 (Tr. 17), his appeal requires a showing of disability on or before

that date. See Moore, 405 F.3d at 1211. “A claimant who becomes disabled after [he] loses insured

status must be denied disability insurance benefits despite h[is] disability. Thomas-Joseph,

2022 WL 1769134, at *1 (citing Demandre v. Califano, 591 F.2d 1088, 1090 (5th Cir. 1979)).5

Thus, Plaintiff must have shown that she was disabled from the date of alleged onset, December

1, 2016, through her date last insured, September 30, 2017.

Here, the record shows that the ALJ properly applied the regulations in considering the

persuasiveness of Dr. Harvey’s opinion in conjunction with the record as a whole. The ALJ

ultimately found that Plaintiff’s allegations concerning the intensity, persistence, and limiting

effects of her symptoms were “not fully supported in light of her positive response to mental health

treatment and generally normal mental status examination findings,” and that the RFC and other

findings were “consistent with the medical record as a whole and address[ed] the substantiated

allegations of [Plaintiff.]” (Tr. 21, 22). In discussing the objective medical evidence during the

relevant period, the ALJ stated:

Ms. Fulton’s medical record included diagnoses of bipolar disorder and generalized

anxiety disorder (GAD) between her alleged onset date on December 1, 2016 and

her date last insured. Her treatment history for those impairments included both

inpatient and outpatient treatment, but she only required outpatient psychiatric

medication management and therapy between December 2016 and September

2017. The psychiatric treatment notes showed that medications effectively

managed the effects of Ms. Fulton’s bipolar disorder and GAD. Other than a single

instance of presenting with preoccupied thought content, mental status

examinations produced generally normal results with consistent findings of intact

attention, concentration and memory. Ms. Fulton had at least fair judgment and

insight, and no signs of consistent or persistent behavioral or cognitive

abnormalities between December 2016 and September 2017. She also did not

demonstrate or report any significant side effects from her psychiatric medications

during that period. Those findings revealed that medical professionals provided

5 See Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1209 (11th Cir. 1981) (holding that decisions

of the former Fifth Circuit handed down prior to the close of business on September 30, 1981, are

binding in the Eleventh Circuit).

Ms. Fulton with appropriate and effective mental health treatment through her date

last insured.

(Tr. 18, 21, 662-67).

The ALJ also considered an October 2019 treatment history and narrative statement by

therapist William B. Cole, a licensed professional counselor. (Tr. 18). The ALJ noted the

following:

[Dr. Cole] largely discussed Ms. Fulton’s self-reported functioning and symptoms.

Mr. Cole’s statement did not directly contain objective medical evidence or address

Ms. Fulton’s response to therapy through her date last insured. However, Dr. Cole’s

statement did show that Ms. Fulton required outpatient psychiatric medication

management and therapy between December 2016 and September 2017.

(Tr. 18, 699-702).

As to the opinion evidence, the ALJ stated:

I considered the State Disability Determination Service’s (DDS) psychiatric

consultant’s prior administrative findings. In June 2018, Robert Estock, M.D.,

assessed Ms. Fulton’s mental condition and determined that she had severe

attention deficit disorder (ADD), bipolar disorder, and GAD. Yet, Dr. Estock also

found that the record did not contain sufficient evidence for him to set out a mental

RFC finding. Thus, other than finding a severe mental impairment, Dr. Estock did

not present me with an opinion that I could assess. The lack of evidence during the

period at issue caused me to keep the record open and to admit additional evidence.

Unfortunately, for Ms. Fulton, it is difficult to prove disability between 2016 and

2017 in 2019. Exhibits C8F-C12F all related to treatment in 2018 and 2019.

(Tr. 22, 66-69).

With respect to Dr. Harvey’s opinion, the ALJ stated:

Although well after the period under review here, I considered the opinion that

Shawn Harvey, M.D., prepared in August 2019. Dr. Harvey indicated that

Ms. Fulton had experienced multiple extreme and marked mental limitations since

December 1, 2016. He conveyed that opinion by circling answers on a form. Yet,

Dr. Harvey did not explain his conclusions. Thus, I found this opinion

unpersuasive. I also questioned how relevant an opinion expressed in August 2019,

could be relevant to a case that concerned Ms. Fulton’s condition prior to

September 30, 2017. (Exhibit C9F/2-4.) Dr. Harvey did not indicate when he started

treating Ms. Fulton.

(Tr. 22, 696-98).

Contrary to Plaintiff’s assertions, the ALJ, consistent with the revised regulations,

sufficiently evaluated the persuasiveness of Dr. Harvey’s opinion, which was prepared on

August 19, 2019. In a multiple-choice form, Dr. Harvey opined that Plaintiff had marked or

extreme mental limitations in various areas of function. (Tr. 696-97). Dr. Harvey did not cite any

objective evidence from the relevant period in support of his opinion. Although there was no room

on the form for the doctor to explain how the medical evidence supported each of his individual

responses, there was a section at the end of the form that provided room for “additional comments,”

to which Dr. Harvey did not provide any. (Tr. 698). Dr. Harvey marked “yes” that the limitations

identified in the form related back to December 1, 2016 to the present. (Tr. 698).

Plaintiff asserts that Dr. Harvey’s 2019 opinion is supported by objective evidence gleaned

through treatment of Plaintiff during the relevant period. (Doc. 18 at p. 6). Plaintiff cites

Dr. Harvey’s medical record from February 28, 2017 when Plaintiff reported persistent trouble

concentrating and symptoms of irritability, anxiety, and problems focusing. (Doc. 18 at pp. 3, 6,

citing Tr. 664). Dr. Harvey’s mental status examination revealed: a depressed and apathetic mood;

a restricted and blunt affect; a preoccupation with obsessions, compulsions, and phobias; and fair

insight and judgment. (Tr. 665). Dr. Harvey diagnosed her with bipolar disorder and generalized

anxiety disorder (“GAD”) and made no changes to her prescribed medications: Ambien,6 Celexa,7

6 Ambien (Zolpidem) is used to treat insomnia.

See https://medlineplus.gov/druginfo/meds/a693025.html

7 Celexa (Citalopram) is an antidepressant.

See https://medlineplus.gov/druginfo/meds/a699001.html

Depakote,8 and Buspar.9 (Tr. 665). Plaintiff argues that the ALJ erred by not comparing the

opinion of Dr. Harvey against abnormal findings in treatment records from the period at issue and

that the ALJ impermissibly relied on the ALJ’s own lay opinion in reaching a determination that

Plaintiff was not as limited as described by Dr. Harvey as her treating psychiatrist. (Doc. 18 at

p. 8).

However, in the ALJ’s decision, the ALJ cited Dr. Harvey’s medical findings from

February 28, 2017. (Tr. 18, 662-67). Dr. Harvey’s February 28, 2017 record also showed that

Plaintiff was cooperative, was well-groomed, had normal speech and appropriate thought content,

was alert and oriented, had intact memory and attention/concentration, and exhibited fair insight

and judgment. (Tr. 665). In light of such normal findings, Dr. Harvey’s opinion that Plaintiff had

marked or extreme limitations was unsupported by Dr. Harvey’s treatment record and the ALJ

therefore properly found the opinion unpersuasive.

Also, Dr. Harvey’s medical record from November 8, 2016, predating the alleged onset

date, showed that Plaintiff was cooperative, was well-groomed, had normal speech, had euthymic

mood, had appropriate affect and thought content, had logical thought process, was alert and

oriented, had intact memory and attention/concentration, and exhibited fair insight and judgment.

(Tr. 667). Dr. Harvey’s medical record from November 2017, postdating Plaintiff’s date last

insured, showed that Plaintiff’s mood was stable and that she was cooperative, was well-groomed,

had normal speech, had euthymic mood, had appropriate affect and thought content, had logical

thought process, was alert and oriented, had intact memory and attention/concentration, and

8 Depakote (Divalproex) is used to treat mania in people with bipolar disorder and is also used to

prevent migraine headaches. See https://medlineplus.gov/druginfo/meds/a682412.html

9 Buspar (Buspirone) is used to treat anxiety.

See https://medlineplus.gov/druginfo/meds/a688005.html

exhibited good insight and judgment. (Tr. 662-63). The ALJ also found that psychiatric

medication management and therapy effectively controlled Plaintiff’s mental health symptoms as

demonstrated by Dr. Harvey’s mental status examinations, which generally showed normal results

that included consistent observations of intact attention and concentration and memory, at least

fair judgment and insight, and no signs of consistent or persistent behavioral or cognitive

abnormalities. (Tr. 18, 21, 663, 665, 667).

Although the ALJ did not use any “magic words” in evaluating Dr. Harvey’s opinion, the

record reflects that the ALJ met the articulation requirement of 20 C.F.R. § 404.1520c(b)(2) in

determining the supportability and consistency of Dr. Harvey’s opinion, regardless of the specific

language used. See Cook v. Comm’r of Soc. Sec., No. 6:20-cv-1197, 2021 WL 1565832, at *5

(M.D. Fla. Apr. 6, 2021), report and recommendation adopted, No. 6:20-cv-1197, 2021 WL

1565162 (M.D. Fla. Apr. 21, 2021) (“While he may not have used the words ‘supportability’ and

‘consistency,’ the ALJ’s discussion of Dr. Birkmire’s opinions and findings regarding the record

was based on those factors.”).

Plaintiff argues that the opinion and findings of Dr. Harvey are also supported by and

consistent with a report from Plaintiff’s treating therapist, William B. Cole. (Doc. 18 at p. 8).

However, the ALJ found that Dr. Cole’s report did not directly contain objective medical evidence

or address Plaintiff’s response to therapy through her date last insured and that the report largely

consisted of Plaintiff’s self-reported functioning and symptoms. (Tr. 18, 699-702). The ALJ noted

that Dr. Cole’s statement showed that Plaintiff required outpatient psychiatric medication

management and therapy between December 2016 and September 2017. (Tr. 18, 699-702).

Plaintiff does not cite to anything specific in Dr. Cole’s report in which the ALJ failed to consider

or that undermines the ALJ’s findings.

Plaintiff also argues that the ALJ erred to the extent that the ALJ solely rejected

Dr. Harvey’s opinion because it was prepared in August 2019 when Plaintiff’s date last insured

was September 30, 2017. (Doc. 18 at p. 9). The Eleventh Circuit has adopted the position that “a

treating physician’s opinion is still entitled to significant weight notwithstanding that he did not

treat the claimant until after the relevant determination date.” Boyd v. Heckler, 704 F.2d 1207,

1211 (11th Cir. 1983) (superseded by statute on other grounds). However, “in the absence of

corroborating medical evidence,” an ALJ may discount a treating physician’s opinion that the

plaintiff suffered a disability during the relevant disability period. Mason v. Comm’r of Soc. Sec.,

430 F. App’x 830, 832 (11th Cir. 2011); see id. (“Where the medical record contained a

retrospective diagnosis, that is, a physician’s post-insured-date opinion that the claimant suffered

a disabling condition prior to the insured date, we affirm only when that opinion was consistent

with pre-insured-date medical evidence.”); Garvey v. Astrue, No. 1:07-cv-00021, 2007 WL

4403525, at *7 (N.D. Fla. Dec. 12, 2007) (“In this circuit, especially, the ALJ must point to

substantial evidence in the record to discount the opinion of a treating physician, whether

retrospective, contemporary, or prospective.”); Yoder v. Colvin, No. 8:14-CV-440, 2015 WL

769931, at *3 (M.D. Fla. Feb. 23, 2015) (“The plaintiff is correct that the remoteness of the opinion

is, by itself, an insufficient basis to discount the opinion of a treating physician. Thus, a treating

physician’s opinion, even when it is retrospective, is entitled to substantial weight in the absence

of good cause to discount it.”).10

10 The court notes that the SSA abrogated the treating-physician rule, and thus, the agency “will

not defer or give any specific evidentiary weight, including controlling weight, to any medical

opinion(s) or prior administrative medical finding(s), including those from [the claimant’s own]

medical sources.” 20 C.F.R. § 404.1520c(a); Harner, 38 F.4th at 894 (“The new regulation

instructs administrative law judges to give a treating physician’s opinion no deference and instead

to weigh medical opinions based on their persuasiveness.”).

The ALJ considered Dr. Harvey’s opinion under 20 C.F.R. § 404.1520c and found that

Dr. Harvey’s multiple-choice form was unpersuasive as Dr. Harvey did not explain his

conclusions. (Tr. 22). The ALJ considered the relevancy of Dr. Harvey’s opinion that was given

almost two years after the date last insured, but the ALJ did not rely on that as a sole factor in

considering the opinion. (Tr. 22). The ALJ also considered the medical treatment records during

the relevant period, which did not support Dr. Harvey’s findings of extreme and marked limitations

since December 1, 2016. (Tr. 18, 22). While Dr. Harvey opined that Plaintiff had extreme

impairment of her ability to maintain attention and concentration for extended periods, he observed

that Plaintiff had intact attention/concentration (Tr. 18, 21, 665, 697). Moreover, despite observing

that Plaintiff had intact memory, average fund of knowledge, fair insight and judgment, and

appropriate thought content, Dr. Harvey opined that Plaintiff had extreme impairment of her ability

to understand, remember and carry out simple instructions. (Tr. 18, 21, 665, 696). Thus, the ALJ’s

decision to find that Dr. Harvey’s opinion was unpersuasive was supported by substantial

evidence.

Plaintiff argues that the ALJ failed to examine all of the relevant factors and articulate how

persuasive he found the opinion of Dr. Harvey, a treating specialist, based on a meaningful

application of all of the factors in 20 C.F.R. § 404.1520c(c)(3)-(5). (Doc. 18 at pp. 10-11). Plaintiff

further argues that because the ALJ failed to cite to any specific medical facts or even persuasive

non-medical evidence in the record that supports Plaintiff’s mental RFC determination, that the

ALJ’s decision was impermissibly based on the ALJ’s lay interpretation of the clinical and

objective medical evidence. (Id. at p. 11).

As stated above, “the task of determining a claimant’s [RFC] and ability to work rests with

the [ALJ], not a doctor,” Moore, 649 F. App’x at 945, and “[a]n ALJ may ‘distill a claimant’s RFC

from an amalgamation of the record as a whole, without requiring a specific medical opinion to

articulate a specific functional limitation.’” Tolbert, 2022 WL 4591646, at *2 (citation omitted);

20 C.F.R. §§ 404.1545(a)(3), 404.1546(c). While an ALJ must consider the supportability and

consistency factors when determining the persuasiveness of a medical source’s medical opinions

or prior administrative medical findings, the ALJ may but is not required to explain how he

considered the other factors under 20 C.F.R. § 404.1520c(c)(3)-(5). See 20 C.F.R.

§ 404.1520c(b)(2). Further, the ALJ is “not required to articulate how [he] considered evidence

from nonmedical sources.” 20 C.F.R. § 404.1520c(d). Nor is an ALJ “required to specifically

address every aspect of an opinion or every piece of evidence in the record” in order for the

determination to be affirmed. Coley, 771 F. App’x at 917.

Here, the ALJ considered Plaintiff’s treatment history during the relevant period and noted:

that she only required outpatient psychiatric medication management and therapy between

December 2016 and September 2017; that medications effectively managed the effects of her

bipolar disorder and GAD; that other than a single instance of presenting with preoccupied thought

content, mental status examinations produced generally normal results with consistent findings of

intact attention, concentration and memory; that she had at least fair judgment and insight, with no

signs of consistent or persistent behavioral or cognitive abnormalities between December 2016

and September 2017; and that she did not demonstrate or report any significant side effects from

her psychiatric medications during that period. (Tr. 18, 21, 662-667). Thus, the ALJ explained

that the entire treatment history during the relevant period demonstrated conservative care and

normal to mild objective findings.

In sum, the ALJ sufficiently considered the supportability and consistency of Dr. Harvey’s

opinion under 20 C.F.R. § 404.1520c and considered the record as a whole in determining

Plaintiff’s RFC. Plaintiff had the burden of proving that she was disabled but failed to provide

evidence to support her claim that she was disabled during the relevant period. See Cooper v.

Comm’r of Soc. Sec., 521 F. App’x 803, 808 (11th Cir. 2013) (citing Ellison, 355 F.3d at 1276)

(“The claimant bears the burden of proving that she is disabled, and, thus, is responsible for

producing evidence to support her claim.”). Plaintiff “‘must do more than point to evidence in the

record that supports her position; she must show the absence of substantial evidence supporting

the ALJ’s conclusion.’” Thompkins v. Kijakazi, No. 2:21-CV-216, 2022 WL 2517185, at *7

(M.D. Ala. July 6, 2022) (quoting Sims v. Comm’r of Soc. Sec., 706 F. App’x 595, 604

(11th Cir. 2017) (per curiam)); 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). Put most

simply, “[t]o 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, 2021 WL 3023679,

at *5 (M.D. Fla. June 28, 2021), report and recommendation adopted, No. 2:20-CV-181,

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)); Mitchell v. Comm’r, Soc. Sec. Admin., 771 F.3d 780,

782 (11th Cir. 2014) (“‘We may not decide the facts anew, reweigh the evidence, or substitute our

judgment for that of the Commissioner.’ ‘If the Commissioner’s decision is supported by

substantial evidence, this Court must affirm, even if the proof preponderates against it.’”)

(citations omitted).

B. Failure to Properly Evaluate Plaintiff’s Subjective Statements

Plaintiff contends that the ALJ grossly mischaracterized the record by describing mental

status examinations from the relevant period as “generally normal” and that the ALJ failed to cite

to substantial evidence that Plaintiff had significant or sustained improvement to a degree that

conflicted with her subjective statements. (Doc. 18 at p. 14). Plaintiff also contends that the ALJ

failed to properly evaluate the statements from Plaintiff’s mother, Gloria Griggs, who completed

a written statement regarding Plaintiff on May 31, 2018. (Id. at pp. 15-16). Plaintiff further argues

that the ALJ failed to consider her “honorable” work history in evaluating her subjective

statements. (Id. at p. 16).

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). The Commissioner will consider a claimant’s

statements about his or her symptoms and any description that claimant’s medical sources or

nonmedical sources may provide about how the symptoms affect the claimant’s activities of daily

living and ability to work. Id. 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); Turner v. Kijakazi, No. 1:19-CV-

774, 2021 WL 3276596, at *9 (M.D. Ala. July 30, 2021) (“[A]n ALJ is not required to accept a

claimant’s subjective allegations of pain or symptoms.”). The regulations set out a two-step

process for the evaluation of subjective complaints. Id.; SSR 16-3p, 2017 WL 5180304, at *3.

To establish a disability based on testimony of 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 (2) evidence establishing that the objectively determined medical

condition could be reasonably expected to give rise to the alleged symptoms. Carroll v. Soc. Sec.

Admin., Comm’r, No. 6:21-CV-00014, 2022 WL 3718503, at *12 (N.D. Ala. Aug. 29, 2022)

(citing 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 therefore involves a two-step process, wherein

the SSA 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.” Mixon v. Kijakazi, No. 8:20-CV-2991, 2022 WL 2816964, at *3 (M.D. Fla. July 19, 2022);

20 C.F.R. §§ 404.1529(a)-(b), 416.929(a)-(b); SSR 16-3p, 2017 WL 5180304, at *2-3. Once an

underlying physical or mental impairment that could reasonably be expected to produce the

claimant’s symptoms 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)-(c), 416.929(a)-(c); Stromgren v. Kijakazi, No. 3:21-CV-908, 2022 WL

1205347, at *5 (N.D. Fla. Mar. 11, 2022), report and recommendation adopted, No. 3:21-CV-908,

2022 WL 1204519 (N.D. Fla. Apr. 22, 2022). 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; 20 C.F.R. § 404.1529(c)(3).

The ALJ will also consider whether there are any inconsistencies in the evidence and the

extent to which there are any conflicts between claimant’s statements and the rest of the evidence,

including the history, signs and laboratory findings, and statements by treating and non-treating

sources or other persons about how the symptoms affect the claimant. 20 C.F.R. § 404.1529(c)(4).

“However, Eleventh Circuit case law does not require an ALJ to enumerate every factor in every

decision.” Alexander v. Comm’r of Soc. Sec. Admin., No. 6:20-CV-01862, 2022 WL 4291335, at

*5 (N.D. Ala. Sept. 16, 2022) (citing Foote v. Chater, 67 F.3d 1553, 1561 (11th Cir. 1995)

(concluding that the ALJ need not cite to “particular phrases or formulations,” but must provide

reasons that would enable a reviewing court to conclude that the ALJ considered the claimant’s

medical condition as a whole). If the ALJ discredits a claimant’s subjective statements, the ALJ

“must articulate explicit and adequate reasons for doing so.” Foote, 67 F.3d at 1561-62; Patterson

v. Kijakazi, No. 8:21-CV-359, 2022 WL 3028058, at *3 (M.D. Fla. Aug. 1, 2022). That is,

“[w]here proof of a disability is based upon subjective evidence and a credibility determination is

a critical factor in the decision, if the ALJ discredits the claimant’s testimony as to his subjective

symptoms, the ALJ must either explicitly discredit such testimony or the implication from the

ALJ’s opinion must be so clear as to amount to a specific credibility finding.” Martinez v. Comm’r

of Soc. Sec., No. 21-12116, 2022 WL 1531582, at *2 (11th Cir. May 16, 2022) (citing Foote,

67 F.3d at 1562). “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,

771 F.3d at 782).

Here, the record reflects that the ALJ sufficiently addressed Plaintiff’s subjective

statements in accordance with the regulations. The ALJ first considered Plaintiff’s Function

Report, in which she wrote that she had problems with her memory, with understanding and

following instructions, with concentrating, with completing tasks, and that she had social

interaction problems, which included getting along with others and managing stress or changes in

routine. (Tr. 20, 193-94). The ALJ also considered the 2018 Function Report and third-party

questionnaire prepared by Plaintiff’s mother, Gloria Griggs, which the ALJ found “largely echoed”

Plaintiff’s allegations. (Tr. 20, 174-184). The ALJ then discussed Plaintiff’s hearing testimony:

Ms. Fulton testified about her mental condition at the November 13, 2019 hearing.

She emphasiz[ed] that the effects of her bipolar disorder and GAD rendered her

unable to work. She described having problems with her mood, poor memory and

concentration, isolating herself, getting along with others and managing stress. She

described hallucinations. Ms. Fulton alleged that she had difficulties performing

even simple activities of daily living, such as tending to her personal care. She also

recounted incidents where she had experienced conflict with co-workers and other

incidents where she had gotten angry with a supervisor and lost her job. She

reviewed her mental health treatment history, noting that her psychiatric

medications helped but also contributed to her memory problems and interfered

with her sleep.

(Tr. 21).

The ALJ, evaluating Plaintiff’s testimony and her mother’s statements with the factors

outlined in SSR 16-3p, “found both inconsistent with the record as a whole” and “contrasted the

statements regarding the alleged severity of [Plaintiff’s] symptoms with her positive response to

mental health treatment and generally normal mental status examination findings.” (Tr. 21). The

ALJ explained that Plaintiff’s medical records showed that she did not require inpatient psychiatric

treatment during the period at issue and that psychiatric medication management and therapy

effectively controlled her mental health symptoms as demonstrated by findings of intact attention,

concentration, and memory, with fair to good judgment and insight, and no signs of persistent

behavioral or cognitive abnormalities. (Tr. 18, 21, 663, 665, 667). The ALJ noted that Plaintiff

did not report significant side effects from her psychiatric medications, although in her testimony,

she alleged that her medications caused memory problems and interfered with her sleep. (Tr. 21,

55, 662-67, 699-701).

Based upon the evidence in the record, the ALJ concluded:

After careful consideration of the evidence, I found that Ms. Fulton’s medically

determinable impairments could reasonably be expected to cause the alleged

symptoms. However, I found her allegations concerning the intensity, persistence,

and limiting effects of those symptoms not fully supported in light of her positive

response to mental health treatment and generally normal mental status

examination findings. ...

The residual functional capacity set forth above addressed Ms. Fulton’s alleged

symptoms to the extent that the medical record substantiated them. The mental,

postural, and environmental limitations accommodated Ms. Fulton’s moderate

limitations caused by her bipolar disorder and GAD. I set out the postural and

environmental limitations to accommodate the possible medication side effects.

(Tr. 21).

The record shows that the ALJ properly considered the entire administrative record in

evaluating the consistency of Plaintiff’s statements and adequately articulated reasons for finding

Plaintiff’s statements to be inconsistent with the record. While Plaintiff may cite to some evidence

that the ALJ did not specifically discuss, nothing requires the ALJ to discuss every piece of

evidence so long as substantial evidence supports the ALJ’s decision. Coley, 771 F. App’x at 917;

Dyer, 395 F.3d at 1211; Gogel, 2021 WL 4261218, at *9. Further, while Plaintiff cites evidence

that she believes supports her subjective complaints or contradicts the ALJ’s assessment (Doc. 18

at pp. 12-17), that is not enough to obtain a remand when, as here, substantial evidence supports

the ALJ’s decision. Crawford, 363 F.3d at 1158-59; Mitchell, 771 F.3d at 782.

Further, contrary to Plaintiff’s assertions, the ALJ considered Plaintiff’s mother’s

statements, finding that her statements were cumulative of Plaintiff’s statements and testimony.

Plaintiff does not cite any statements by Plaintiff’s mother that provided any significant

information that the ALJ failed to consider. Further, the ALJ is “not required to articulate how

[he] considered evidence from nonmedical sources.” 20 C.F.R. § 404.1520c(d). “‘Evidence from

nonmedical sources is any information or statement(s) from a nonmedical source,’ including

testimony from the claimant and the claimant’s family, ‘about any issue in [the disability] claim.’”

Deerman v. Soc. Sec. Admin., Comm’r, No. 4:20-CV-00943, 2022 WL 907179, at *6 (N.D. Ala.

Mar. 28, 2022) (quoting 20 C.F.R. § 404.1513(a)(4)); SSR 16-3p, 2017 WL 5180304, at *7

(“Other sources may provide information from which [the agency] may draw inferences and

conclusions about an individual’s statements that would be helpful to [the agency] in assessing the

intensity, persistence, and limiting effects of symptoms.”).

As to Plaintiff’s contention that the ALJ failed to consider her “honorable” work history as

a favorable factor in the subjective symptom assessment, there is no authority requiring the ALJ

to consider work history for purposes of a credibility determination. Glover v. Saul, No. 3:20-CV-

05625, 2021 WL 5033974, at *10 (N.D. Fla. Oct. 18, 2021) (citing Edwards, 937 F.2d at 584)

(rejecting plaintiff's argument that ALJ erred in failing to consider her good work history in

determining her credibility where substantial evidence supported the ALJ’s credibility

determination); Sickmiller v. Saul, No. 8:19-CV-3087, 2021 WL 1186846, at *8 (M.D. Fla.

Mar. 30, 2021); Shelton v. Kijakazi, No. CV 121-154, 2022 WL 3334454, at *8 (S.D. Ga.

July 22, 2022), report and recommendation adopted, No. CV 121-154, 2022 WL 3330148

(S.D. Ga. Aug. 11, 2022) (“[N]othing in the regulations nor in binding precedent instructs that the

ALJ must articulate how he considers a Plaintiff’s work history for the purposes of his

evaluation.”).

“[A]n ALJ is not required to accept a claimant’s subjective allegations of pain or

symptoms.” Turner, 2021 WL 3276596, at *9; 20 C.F.R. § 404.1529(a) (“[S]tatements about [a

claimant’s] pain or other symptoms will not alone establish that [a claimant is] disabled.”). As

explained above, the court finds that the ALJ properly evaluated Plaintiff's subjective complaints

in light of the evidence of record and formulated appropriate RFC restrictions to accommodate the

limitations arising from her mental impairments. Credibility determinations are the province of

the ALJ, Mitchell, 771 F.3d at 782, and the ALJ sufficiently cited evidence in the record for finding

that Plaintiff's statements were not entirely consistent with the record as a whole. See Werner v.

Comm ’r of Soc. Sec., 421 F. App’x 935, 939 (11th Cir. 2011) (footnote omitted) (The appropriate

question for a reviewing court “is not . . . whether [the] ALJ could have reasonably credited [the

claimant’s] testimony, but whether the ALJ was clearly wrong to discredit it.”).

V. Conclusion

After carefully and independently reviewing the record, and for the reasons stated above,

the court concludes that the Commissioner’s decision is due to be AFFIRMED. A separate

judgment will issue.

DONE this the 30th day of March 2023.

(LAr

CHA . BRYAN

UNITED STATES MAGISTRATE JUDGE

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