Brown v. Kijakazi (CONSENT)

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE MIDDLE DISTRICT OF ALABAMA

EASTERN DIVISION

MARIE G. BROWN, )

)

Plaintiff, )

)

v. ) CASE NO. 3:22-cv-577-JTA

) (WO)

MARTIN J. O’MALLEY,1 )

Commissioner of Social Security, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

Pursuant to 42 U.S.C. § 405(g), the claimant, Marie G. Brown (“Brown”) brings

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

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

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

Income (“SSI”). The Court construes Brown’s brief in support of her Complaint (Doc. No.

12) as a motion for summary judgment and the Commissioner’s brief in opposition to the

Complaint as a motion for summary judgment (Doc. No. 15). The parties have consented

to the exercise of dispositive jurisdiction by a magistrate judge pursuant to 28 U.S.C. §

636(c).

1 Martin J. O’Malley was appointed Commissioner for the Social Security Administration on

December 20, 2023 and is automatically substituted as the defendant. See Fed. R. Civ. P. 25(d).

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

After careful scrutiny of the record and the motions submitted by the parties, the

Court finds that Brown’s motion for summary judgment is due to be DENIED, the

Commissioner’s motion for summary judgment is due to be GRANTED, and the decision

of the Commissioner is due to be AFFIRMED.

I. PROCEDURAL HISTORY AND FACTS3

Brown is a middle-aged female4 with an eleventh-grade education who previously

worked as a toll operator, hand packager and general inspector. (R. 24, 39, 42, 47-48, 67,

290.) She alleged a disability onset date of March 15, 2018, due to hypertension,

gastroesophageal reflux disease and arthritis in her legs, back, feet and left shoulder. (R.

276, 289.) She later amended the disability onset date to March 6, 2019. (R 38.)

In April 2020, Brown protectively filed applications for a period of disability and

DIB under Title II of the Social Security Act and for SSI under Title XVI of the Social

Security Act. Following the administrative hearing, the Administrative Law Judge (“ALJ”)

returned an unfavorable decision on December 20, 2021. (R. 12-31.) Brown sought review

by the Appeals Council, and it denied her request. (R. 1-6.) Thus, the hearing decision

became the final decision of the Commissioner. See 42 U.S.C. § 405(g).

On September 27, 2022, Brown filed this civil action for judicial review of the

Commissioner’s final decision. (Doc. No. 1.) The parties have briefed their respective

positions. (Docs. No. 12, 15.) This matter is ripe for review.

3 Citations to the administrative record are consistent with the transcript of administrative

proceedings filed in this case. (See Doc. No. 16.)

4 Brown was 52 years old at the time of the administrative hearing. (R. 34, 47.)

II. STANDARD OF REVIEW

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

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

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

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

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

is more than a mere scintilla and is “such relevant evidence as a reasonable person would

accept as adequate to support a conclusion.” Crawford v. Comm’r of Soc. Sec., 363 F.3d

1155, 1158 (11th Cir. 2004) (quoting Lewis v. Callahan, 125 F.3d 1346, 1349 (11th Cir.

1997)). Even if the Commissioner’s decision is not supported by a preponderance of the

evidence, the findings must be affirmed if they are supported by substantial evidence. Id.

at 1158-59; see also Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990). The court

may not find new facts, reweigh evidence, or substitute its own judgment for that of the

Commissioner. Bailey v. Soc. Sec. Admin., Comm’r, 791 F. App’x 136, 139 (11th Cir.

2019); Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir. 2004); Dyer, 395 F.3d at

1210. However, the Commissioner’s conclusions of law are not entitled to the same

deference as findings of fact and are reviewed de novo. Ingram v. Comm’r of Soc. Sec.

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

Sentence four of 42 U.S.C. § 405(g) authorizes the district court to “enter, upon the

pleadings and transcript of the record, a judgment affirming, modifying, or reversing the

decision of the Commissioner of Social Security, with or without remanding the cause for

a rehearing.” 42 U.S.C. § 405(g). The district court may remand a case to the Commissioner

for a rehearing if the court finds “either . . . the decision is not supported by substantial

evidence, or . . . the Commissioner or the ALJ incorrectly applied the law relevant to the

disability claim.” Jackson v. Chater, 99 F.3d 1086, 1092 (11th Cir. 1996).

III. STANDARD FOR DETERMINING DISABILITY

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

that she is disabled.5 See 20 C.F.R. § 404.1505; 20 C.F.R. § 416.920. The Act defines

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

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

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

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

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

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

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

the ALJ must determine whether the claimant is currently engaged in substantial gainful

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

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

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

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

has a medically determinable impairment or a combination of impairments that

5 Although DIB and SSI are separate programs, the standards for determining disability are

identical. See Patterson v. Bowen, 799 F.2d 1455, 1456 n.1 (11th Cir. 1986); Miles v. Soc. Sec.

Admin., Comm’r, 469 F. App’x 743, 744 (11th Cir. 2012).

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

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

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

impairment listed in 20 C.F.R. § 404, Subpart P, Appendix 1. If such criteria are met, then

the claimant is declared disabled. 20 C.F.R. § 404.1520(d).

If the claimant has failed to establish that she is disabled at the third step, the ALJ

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

must determine the claimant’s residual functional capacity (“RFC”), which refers to the

claimant’s ability to work despite her impairments. 20 C.F.R. § 404.1520(e). The ALJ must

determine whether the claimant has the RFC to perform past relevant work. 20 C.F.R. §

404.1520(f). If it is determined that the claimant is capable of performing past relevant

work, then the claimant is not disabled. 20 C.F.R. § 404.1560(b)(3). If the ALJ finds that

the claimant is unable to perform past relevant work, then the analysis proceeds to the fifth

and final step. 20 C.F.R. § 404.1520(g)(1). In this final analytical step, the ALJ must decide

whether the claimant is able to perform any other relevant work corresponding with her

RFC, age, education, and work experience. 20 C.F.R. § 404.1560(c). Here, the burden of

proof shifts from the claimant to the ALJ in proving the existence of a significant number

of jobs in the national economy that the claimant can perform given her RFC, age,

education, and work experience. 20 C.F.R. §§ 404.1520(g), 404.1560(c).

IV. ADMINISTRATIVE DECISION

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

met the insured status requirements of the Social Security Act through September 30, 2023,

but had not engaged in substantial gainful activity since March 15, 2018. (R. 17.) The ALJ

determined that Brown suffers from the following severe impairments that significantly

limit her ability to perform basic work activities: obesity, osteoarthritis and allied disorders

and depressive disorder. (R. 18.) The ALJ also determined that Brown had the non-severe

impairments of gastroesophageal reflux disease and hearing loss in her right ear. (R. 18.)

The ALJ concluded that Brown’s impairments do not meet or medically equal the

severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R.

18.) The ALJ determined that “[a] review of the record reveals no evidence to support a

finding that [Brown’s] impairments meet or medically equal listing 1.18 or any other

applicable listing [and] … no opinion of an acceptable medical source designated by the

Commissioner exists in the record to support a listing being equaled as required by

regulation (20 CFR 404.1526 and 416.926).” (R. 18.) The ALJ considered Brown’s obesity

under Social Security Ruling (“SSR”) 19-2p and determined that it “does not have a

sufficient detrimental effect on [her] ability to perform routine movement and necessary

physical activity within the work environment.” (R. 18.) The ALJ further determined that

Brown’s mental impairment does not meet or medically equal the criteria of listing 12.04

because Brown has only mild or moderate limitations. (R. 18-19.)

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

RFC to perform a reduced range of light work as defined in 20 C.F.R. § 404.1567(b)6 and

20 C.F.R. § 416.967(b).

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

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

[Brown] can lift and/or carry 20 pounds occasionally, 10 pounds frequently.

She can sit, with normal breaks, for a total of 6 hours per 8-hour workday,

but can only stand and/or walk, even with normal breaks, for a total of just 4

hours per 8-hour workday. She can occasionally push and/or pull with

bilateral lower extremities. In terms of postural limits, she can never climb

ladders, ropes, or scaffolds, kneel, or crawl; but she can occasionally climb

ramps and stairs, stoop, and crouch; she can frequently balance. In terms of

manipulative limitations, [Brown] can frequently reach overhead and

frequently reach in all other directions bilaterally. In terms of environmental

limits, she must avoid more than occasional exposure to extreme cold,

extreme heat, wetness, and humidity. [Brown] must avoid all exposure

hazards, such as unprotected heights and moving mechanical parts. In terms

of mental limits and to maintain a consistent pace, she is limited to low-stress

work, which I define as requiring no greater than occasional decisions or

judgments to be made, and no greater than occasional changes in a routine

work setting. [Brown] must have no more than superficial exposure to the

general public (with superficial being defined as limited solely for the

purpose for task completion). She can work in close proximity to others, but

with no more than occasional interaction with others and no tandem job tasks

requiring cooperation with other workers to complete the task. [Brown] could

work where supervisors occasionally interact with the worker throughout the

day.

(R. 20.)

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

Brown is unable to perform any past relevant work. (R. 24.) The VE also testified that an

individual with Brown’s age, education, work experience, and RFC could work as a

marker, parts assembler, and a mail clerk. (R. 25.) In light of the testimony of the VE, the

ALJ found that based upon Brown’s age, education, work experience and RFC, she “is

capable of making a successful adjustment to other work that exists in significant numbers

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

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

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

these activities. If someone can do light work, we determine that he or she can also do sedentary

work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for

long periods of time.” 20 C.F.R. § 404.1567(b).

in the national economy” and thus she was not disabled as defined by the Act. (R. 27.)

Based on the foregoing, the ALJ concluded Brown had not been disabled from the alleged

onset date through the date of the hearing decision and thus was not disabled under the

Social Security Act. (R. 27.)

V. DISCUSSION

Brown presents two arguments in this appeal. First, she argues that substantial

evidence does not support the ALJ’s assessment of her subjective complaints. Second, she

argues that substantial evidence does not support the ALJ’s assessments of her mental

impairments and the opinion of Dr. Robert L. Bare.

The Court addresses each issue in turn.

A. Assessment of Subjective Complaints

Brown contends the ALJ’s analysis of her subjective symptoms “was based on

faulty assessments.” (Doc. No. 12 at 6.) Brown asserts the ALJ’s acknowledgment of her

prescribed medication is deficient because the ALJ ignored that she was “scraping together

whatever medications she could get” due to lack of insurance. (Id. at 7.) Brown also asserts

the ALJ failed to acknowledge all of the restrictions of her daily activities. (Id. at 8.)

SSR 16-3p “provides guidance about how [the Social Security Administration]

evaluate[s] statements regarding the intensity, persistence, and limiting effects of

symptoms in disability claims. . . .” Soc. Sec. Ruling 16-3p, 82 Fed. Reg. 49462-03, 2017

WL 5180304 (Oct. 25, 2017). This ruling eliminates the use of the term “credibility” from

the sub-regulatory policy and stresses that the ALJ “will not assess an individual’s overall

character or truthfulness” but instead will “focus on whether the evidence establishes a

medically determinable impairment that could reasonably be expected to produce the

individual’s symptoms and given the [ALJ’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 49463, 49467. “Whether before or after SSR 16–

3p, an ALJ may choose to discredit a claimant’s testimony about his or her symptoms.”

Ring v. Berryhill, 241 F. Supp. 3d 1235, 1252 (N.D. Ala. 2017), aff’d sub nom. Ring v. Soc.

Sec. Admin., Comm’r, 728 F. App’x 966 (11th Cir. 2018) (per curiam).

When evaluating a claimant’s symptoms, a two-step process must be used.

Contreras-Zambrano v. Soc. Sec. Admin., Comm’r, 724 F. App’x 700, 703 (11th Cir. 2018)

(per curiam) (citing SSR 16-3p, 82 Fed. Reg. 49462-03 at 49463). At step one, the ALJ

must determine whether the claimant has a medically determinable impairment that could

reasonably be expected to produce the alleged symptoms. SSR 16-3p, 82 Fed. Reg. 49462-

03 at 49463-64. At step two, the ALJ must evaluate the intensity and persistence of the

symptoms and determine the extent to which they limit the claimant’s ability to perform

work-related activities. Id. at 49464-66. In doing so, the ALJ must examine the entire case

record, including the objective medical evidence; the claimant’s statements about the

intensity, persistence, and limiting effects of symptoms; statements and other information

provided by medical sources and other persons; and any other relevant evidence in the case

record. Id. at 49464. The ALJ also must consider the factors set forth in 20 C.F.R. §

404.1529(c)(3), including (1) daily activities; (2) the location, duration, frequency, and

intensity of pain or other symptoms; (3) any precipitating and aggravating factors; (4) the

type, dosage, effectiveness, and side effects of the claimant’s medication; (5) any treatment

other than medication; (6) any measures the claimant used to relieve his pain or symptoms

other than treatment; and (7) any other factors concerning the claimant’s functional

limitations and restrictions due to his pain or symptoms. Id. at 49465-66; see 20 C.F.R. §

404.1529(c)(3). The ALJ must examine the claimant’s statements about the intensity,

persistence, and limiting effects of symptoms in relation to all other evidence and consider

whether they are consistent with the record as a whole. Hargress v. Soc. Sec. Admin.,

Comm’r, 883 F.3d 1302, 1308 (11th Cir. 2018)7 (per curiam) (citing SSR 16-3p, 81 Fed.

Reg. 14166, 14170 (Mar. 16, 2016)); see also 20 C.F.R. § 404.1529(c)(4).

If the ALJ discredits a claimant’s subjective testimony, she “must articulate explicit

and adequate reasons for doing so or the record must be obvious” as to the finding.

Strickland v. Comm’r of Soc. Sec., 516 F. App’x 829, 832 (11th Cir. 2013) (per curiam)

(citing Foote v. Chater, 67 F.3d 1553, 1561-62 (11th Cir. 1995)). When the ALJ’s reasons

for discrediting a claimant’s statements about pain or other symptoms are clearly

articulated and supported by substantial evidence in the record, a reviewing court will not

disturb the ALJ’s findings. Mitchell v. Comm’r, Soc. Sec. Admin., 771 F.3d 780, 782 (11th

Cir. 2014). “Where proof of a disability is based upon subjective evidence and a credibility

determination is, therefore, a critical factor to the Secretary’s decision, the ALJ must either

7 In Holt v. Sullivan, 921 F.2d 1221 (11th Cir. 1991), the Eleventh Circuit “articulated the ‘pain

standard,’ which applies when a disability claimant attempts to establish a disability through his

own testimony of pain or other subjective symptoms.” Dyer v. Barnhart, 395 F.3d 1206, 1210

(11th Cir. 2005) (per curiam). This pain standard “is consistent with the parameters that SSR 16-

3p sets forth.” Griffin v. Berryhill, No. 4:15-cv-0974-JEO, 2017 WL 1164889, at *6 n.10 (N.D.

Ala. March 29, 2017).

explicitly discredit such testimony or the implication from the ALJ’s opinion must be so

clear as to amount to a specific credibility finding.” Raper v. Comm’r of Soc. Sec., 89 F.4th

1261, 1277 (11th Cir. 2024) (quoting Foote, 67 F.3d at 1562) (internal quotations omitted).

Here, in making the RFC finding, the ALJ summarized Brown’s hearing testimony

regarding her symptoms and noted Brown’s physical restrictions self-reported on the

Function Report. (R. 21.) The ALJ determined that “the allegations were not reasonably

substantiated by the medical evidence of record to the extent to preclude all work activity

or result in a disability.” (R. 21.) In reaching this determination, the ALJ thoroughly

discussed the limited medical evidence of record which spans two months in 2019 and

three months in 2021. (R. 22-24.) The ALJ noted the 2019 and 2021 x-rays of Brown’s

knees which showed that she was assessed with bilateral osteoarthritis of the knees as well

as obesity. (R. 21, 22.) The ALJ also noted Brown’s 2021 records pertaining to her diffuse

arthritis and decreased range of motion in her spine and stated that “the objective physical

examination demonstrated evidence of tenderness to palpation in her cervical/lumbar spine

and in her AC joints as well as crepitus in both knees.” (R. 21.) The ALJ further noted that

“the records revealed [Brown] was in no acute distress, as she ambulated with a normal

gait without the use of any assistive device; sat comfortabl[y] through the exam; and spoke

with normal conversational tones.” (R. 21.) The ALJ observed that the x-rays of Brown’s

spine did not demonstrate any acute abnormalities. (R. 22.) The ALJ also observed the

“lack of aggressive medical treatment” Brown has received as she has only been prescribed

medications and has “not underwent any surgical treatment or ongoing hospitalizations due

to her condition.” (R. 21, 22.) The ALJ concluded, “[b]ased upon the evidence of record[,]

… [Brown] could reasonably expect to experience some degree of functional limitation

due [to] her weight and limit[ed] the residual functional capacity to range of light work.”

(R. 22.)

As to Brown’s mental impairments, the ALJ noted “there were few treatment

records” and observed she “received treatment for depression while she presented for

physical issues.” (R. 22.) The ALJ observed Brown’s depression screening showed that

she suffered from moderate to severe depression, but none of her treating physicians

precluded her from working. (R. 22.) The ALJ noted the records reflected Brown “did not

possess any marked or extreme limitations in her ability to function from a mental

standpoint.” (R. 22.) The ALJ also discussed a mental evaluation of Brown, stating inter

alia “[t]he mental evaluation took into account many subjective statements by [Brown],

but overall, supports that she does minimally have severe mental impairments, which is

consistent with the findings of DDS who indicated that she is mostly mild, but does have

moderate impairment in social interaction.” (R. 23.) Further, the ALJ considered Brown’s

description of her activities and lifestyle and determined that her subjective symptoms

concerning her impact on her ability to work were not entirely persuasive. (R. 23.) The

ALJ stated,

[a]fter careful consideration of the evidence, the undersigned finds that

[Brown’s] medically determinable impairments could reasonably be

expected to cause the alleged symptoms; however, [Brown’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 ….

(R. 24.) The ALJ concluded that her RFC determination “is supported by the medical

records and [Brown’s] own description of her daily activities as well as the lack of

aggressive medical treatment.” (R. 24.)

After a review of the record, the Court finds that the ALJ sufficiently explained her

reasoning for discrediting Brown’s subjective complaints and symptoms. See Herron v.

Soc. Sec. Admin., Comm’r, 649 F. App’x 781, 786 (11th Cir. 2016) (finding the ALJ

adequately explained her reasoning for discrediting the claimant’s testimony when that

testimony is not fully supported by the medical evidence, when the ALJ fully reviewed and

summarized the claimant’s medical history, and when the claimant’s treating physician

noted that the claimant’s chronic low back pain was controlled by medication, and that

claimant’s pain and range of motion was relatively normal). First, although not dispositive,

Brown’s daily activities support the ALJ’s conclusion that Brown’s symptoms are not as

limiting as alleged. See 20 C.F.R. § 416.929(c)(3). Second, the ALJ clearly articulated her

credibility finding with substantial supporting record evidence. The evidence in the

medical record shows that, despite Brown’s reported inability to walk and complaints of

severe pain all over her body,8 she had a normal gait upon examinations, did not use an

assistive device, was consistently prescribed medication for pain management, and was

urged to lose weight to reduce her knee pain. (R. 415, 418, 420, 423, 440, 441, 445-447,

451.) Indeed, in an examination on January 30, 2021, the medical source noted that Brown

8 Brown has reported complaints of pain in both shoulders, both arms, feet, lower back, hips and

knees. (R. 415, 423, 438.)

“ambulated to the examination room with normal gait, sat comfortably through the exam,

[and] spoke with normal conversational tones.” (R. 417.) The March 5, 2021, x-ray of her

spine showed “no acute radiographic abnormality[,]” and “no acute traumatic, congenital,

inflammatory or neoplastic changes.” (R. 429.) Based upon this medical evidence in the

record, the Court finds no reason to disturb the ALJ’s clearly articulated credibility finding

that is supported by substantial evidence. See Mitchell, 771 F.3d at 782. Accordingly, the

Court finds no reversible error regarding the ALJ’s assessment of Brown’s subjective

symptoms.9

B. Assessments of Mental Impairments and Opinion of Dr. Bare

Brown next contends the ALJ’s analysis of her mental impairments suffers from

“two significant flaws.” (Doc. No. 12 at 9.) She argues the ALJ improperly stated that her

depression was caused by two tubal pregnancies “without support from a health care

9 Brown’s argument that the ALJ ignored that she was “scraping together whatever medications

she could get” due to lack of insurance is unavailing. (Doc. No. 12 at 7.) “[R]efusal to follow

prescribed medical treatment without a good reason will preclude a finding of disability,” and

“poverty excuses noncompliance.” Ellison v. Barnhart, 355 F.3d 1272, 1275 (11th Cir. 2003)

(citing Dawkins v. Bowen, 848 F.2d 1211, 1213 (11th Cir. 1988)).

Nevertheless, if the claimant’s failure to follow medical treatment is not one of the

principal factors in the ALJ’s decision, then the ALJ’s failure to consider the

claimant’s ability to pay will not constitute reversible error. See id. (holding that

ALJ’s failure to consider claimant’s ability to pay was not reversible error because

the ALJ’s decision primarily was based on factors other than the claimant’s failure

to obtain medical treatment).

Brown v. Comm’r of Soc. Sec., 425 F. App’x 813, 817 (11th Cir. 2011) (citing Ellison, 355 F.3d

at 1275). Here, there is no mention or finding by the ALJ that Brown failed to follow medical

treatment or failed to obtain medical treatment, thus there is no evidence before the Court which

supports a finding that this issue “play[ed] a major role in the ALJ’s decision.” Id. (citing Ellison,

355 F.3d at 1275). The Court finds no reversible error.

professional or relevant testimony.” (Id. at 10.) She also argues that the ALJ did not make

a “reasonable effort to give effect” to Dr. Bare’s opinion that Brown would benefit from

having her own workstation and taking regular breaks. (Id.)

The regulations define medical opinions as “statements from physicians and

psychologists or other acceptable medical sources that reflect judgments about the nature

and severity of [the claimant’s] impairment(s), including [the claimant’s] symptoms,

diagnosis and prognosis, what [the claimant] can still do despite impairment(s), and [the

claimant’s] physical or mental restrictions.” 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2).

“The ALJ is required to consider the opinions of non-examining state agency medical and

psychological consultants because they ‘are highly qualified physicians and psychologists,

who are also experts in Social Security disability evaluation.’ ” Milner v. Barnhart, 275 F.

App’x 947, 948 (11th Cir. 2008) (per curiam); see also Social Security Ruling 96-6p

(stating that the ALJ must treat the findings of State agency medical consultants as expert

opinion evidence of non-examining sources). These opinions are referred to as “prior

administrative medical findings.” See 20 C.F.R. § 404.1513(a)(5).10

10 According to the regulations,

A prior administrative medical finding is a finding, other than the ultimate

determination about whether you are disabled, about a medical issue made by our

Federal and State agency medical and psychological consultants at a prior level of

review (see § 404.900) in your current claim based on their review of the evidence

in your case record, such as:

(i) The existence and severity of your impairment(s);

(ii) The existence and severity of your symptoms;

(iii) Statements about whether your impairment(s) meets or medically equals any

listing in the Listing of Impairments in Part 404, Subpart P, Appendix 1;

(iv) Your residual functional capacity;

(v) Whether your impairment(s) meets the duration requirement; and

The regulations direct the ALJ to “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] medical sources.” 20 C.F.R. §

404.1520c(a).

When a medical source provides one or more medical opinions or prior

administrative medical findings, [the ALJ] will consider those medical

opinions or prior administrative medical findings from that medical source

together using the factors listed in paragraphs (c)(1) through (c)(5) of this

section, as appropriate. The most important factors [the ALJ] considers when

… evaluat[ing] the persuasiveness of medical opinions and prior

administrative medical findings are supportability (paragraph (c)(1) of this

section) and consistency (paragraph (c)(2) of this section)….

20 C.F.R. § 404.1520c(a).11

In the hearing decision, the ALJ discussed the “few treatment records” pertaining

to Brown’s mental health and thoroughly summarized the records. (R. 22-23.) In the

(vi) How failure to follow prescribed treatment (see § 404.1530) and drug addiction

and alcoholism (see § 404.1535) relate to your claim.

20 C.F.R. § 404.1513.

11 The regulations direct the ALJ to evaluate the persuasiveness of each medical source using the

following five factors: (1) supportability, (2) consistency, (3) relationship with the claimant, (4)

specialization of the medical source, and (5) other factors. 20 C.F.R. § 404.1520c(1)(c). The ALJ

must explain in her decision how she considered the factors of supportability and consistency in

her determination of overall persuasiveness of each source.11 20 C.F.R. § 404.1520c(b)(2)

(“[S]upportability ... and consistency ... are [t]he most important factors we consider when we

determine how persuasive we find a medical source’s opinions or prior administrative medical

findings to be. Therefore, we will explain how we considered the supportability and consistency

factors for a medical source’s medical opinions or prior administrative medical findings in [the

claimant’s] determination or decision.”). “When weighing medical opinion evidence, the ALJ

considers many factors, including the examining relationship, the treatment relationship, whether

an opinion is well-supported, and whether an opinion is consistent with the record.” Wines v.

Acting Comm’r of Soc. Sec., No. 21-13606, 2022 WL 2526586, at *3 (11th Cir. July 7, 2022).

summary, the ALJ stated that the treatment records “revealed [Brown] experienced

symptoms such as feeling down, feelings of hopelessness, difficulty sleeping, having little

energy, poor appetite or overeating, and difficulty concentrating almost every day.” (R.

22.) The ALJ also noted that Brown’s “depression screening reflected that she was

moderately to severely depressed after she underwent 2 tubal pregnancies.” (R. 22.)

Brown’s challenge to the ALJ’s statement relating to her tubal pregnancies has

merit but does not justify remand. As Brown correctly contends, there is no support in the

medical record for the statement by the ALJ which implies that Brown’s depression was

caused or triggered by her tubal pregnancies. The medical evidence shows that Brown

suffered from depression during the relevant period but there is no evidence showing a

causal relation between her depression and the two tubal pregnancies she suffered many

years prior, which happened to occur in two separate relationships. (R. 425.) Nevertheless,

the Court further finds that this ostensibly inaccurate statement by the ALJ is harmless as

Brown has not shown how this statement prejudiced her in the disability determination.

See Cooper v. Astrue, 373 F. App’x 961, 962 (11th Cir. 2010) (“Errors may be harmless if

they do not prejudice the claimant.”) (citation omitted); Anderson v. Kijakazi, No 1:20-cv-

865-JTA, 2022 WL 3650619, at *4 (M.D. Ala. Aug. 24, 2022) (it is plaintiff’s burden to

show harmful error) (citation omitted). Consequently, remand is not warranted on that

issue.

Brown’s second argument suffers the same fate. Dr. Bare, a State agency

psychological consultant, found in a Mental Residual Functional Capacity that Brown was

either “not significantly limited” or “moderately limited” in all categories of mental

limitations. (R. 133-134.) When asked to explain Brown’s sustained concentration and

persistence limitations, Dr. Bare stated that Brown is able to “sustain attention and

concentration for 2 hour periods at a time to complete a normal workday at an acceptable

pace and schedule[;] [she] would benefit from her own workstation[;] [and she] may

require regular, but not excessive work breaks.” (R. 133.) In the hearing decision, the ALJ

observed that “the DDS noted that [Brown] did not possess any marked or extreme

limitations in her ability to function from a mental standpoint.” (R. 22.) The ALJ repeated

all of the findings of Dr. Bare and concluded that “[t]he opinion of the DDS pertaining [to

Brown’s] mental assessments are deemed mostly persuasive because it is consistent with

[her] objective mental status examination, which described [her as] having no more than

moderate limitations.” (R. 22-23.)

Brown unconvincingly argues that the ALJ should have included an RFC limitation

to no assembly work since Dr. Bare opined that Brown needed her own workstation and

needed to work at an acceptable pace. (Doc. No. 12 at 11.) It is worth noting that the ALJ

clearly incorporated the need for regular breaks in the RFC, but did not incorporate the

workstation limitation. Regardless, no reversible error occurred as the regulations do not

require the ALJ to adopt every part of a prior administrative medical finding in the RFC

that she finds persuasive. Rivera Misla v. Comm’r of Soc. Sec., No. 6:20-CV-1076-DCI,

2021 WL 2417084, at *2 (M.D. Fla. June 14, 2021) (“[A]n ALJ need not adopt every part

of an opinion that the ALJ finds persuasive.”) (citing 20 C.F.R. § 404.1520c(a)). Hence,

Brown’s second argument fails and remand is not warranted on that issue.

Finally, Brown has failed to satisfy her burden of demonstrating that the ALJ’s RFC

decision is not supported by substantial evidence. The ALJ’s decision indicates that she

considered the medical evidence of record regarding Brown’s impairments, singly and in

combination, in fashioning her RFC. The ALJ thoroughly summarized the medical record,

including the conservative treatment of Brown’s injuries; her complaints of ongoing pain;

how she was not precluded from working by any of her medical sources; and the limited

findings provided in her office visits. The ALJ also assessed how Brown’s reported

activities supported the RFC. Therefore, the Court concludes that substantial evidence in

the medical record supports the ALJ’s conclusion. Remand is not warranted in this case.

VI. CONCLUSION

For the reasons stated above, it is ORDERED as follows:

1. The claimant’s motion for summary judgment (Doc. No. 12) is DENIED.

2. The Commissioner’s motion for summary judgment (Doc. No. 15) is

GRANTED.

3. The decision of the Commissioner is AFFIRMED.

A separate judgment will issue.

DONE this 2nd day of February, 2024.

Chin

xara

UNITED STATES MAGISTRATE JUDGE

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