# Viator v. Social Security Administration, Commissioner

> District Court, N.D. Alabama · May 6, 2024

URL: https://www.frixlaw.com/law-library/cases/9992159

## Case

- **Court:** District Court, N.D. Alabama
- **Decided:** May 6, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9992159

## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
JASPER DIVISION

TRACY VIATOR, )
)
Plaintiff, )
)
vs. ) Case No. 6:22-cv-01518-HNJ
)
SOCIAL SECURITY )
ADMINISTRATION, COMMISSIONER, )
)
Defendant. )

MEMORANDUM OPINION

Plaintiff Tracy Viator seeks judicial review pursuant to 42 U.S.C. § 405(g) of an
adverse, final decision of the Commissioner of the Social Security Administration
(“Commissioner”), regarding her claim for a period of disability and disability insurance
benefits. The undersigned carefully considered the record, and for the reasons
expressed herein, AFFIRMS the Commissioner’s decision.1
LAW AND STANDARD OF REVIEW
To qualify for benefits, the claimant must be disabled as defined by the Social
Security Act and the Regulations promulgated thereunder. The Regulations define
“disabled” as the “inability to do any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected to result

1 In accordance with the provisions of 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73, the
parties have voluntarily consented to have a United States Magistrate Judge conduct any and all
proceedings, including the entry of final judgment. (Doc. 10).
in death or which has lasted or can be expected to last for a continuous period of not
less than 12 months.” 20 C.F.R. § 404.1505(a). To establish an entitlement to disability

benefits, a claimant must provide evidence of a “physical or mental impairment” which
“results from anatomical, physiological, or psychological abnormalities which are
demonstrable by medically acceptable clinical and laboratory diagnostic techniques.”
42 U.S.C. § 423(d)(3).

In determining whether a claimant suffers a disability, the Commissioner,
through an Administrative Law Judge (ALJ), works through a five-step sequential
evaluation process. See 20 C.F.R. § 404.1520(a)(4). The burden rests upon the claimant
at the first four steps of this five-step process; the Commissioner sustains the burden

at step five, if the evaluation proceeds that far. Washington v. Comm’r of Soc. Sec., 906 F.3d
1353, 1359 (11th Cir. 2018).
In the first step, the claimant cannot be currently engaged in substantial gainful
activity. 20 C.F.R. § 404.1520(b). Second, the claimant must prove the impairment is

“severe” in that it “significantly limits [the] physical or mental ability to do basic work
activities . . . .” Id. at § 404.1520(c).
At step three, the evaluator must conclude the claimant is disabled if the

impairments meet or medically equal one of the impairments listed at 20 C.F.R. Part
404, Subpart P, App. 1, §§ 1.00-114.02. Id. at § 404.1520(d). If a claimant’s impairment
meets the applicable criteria at this step, that claimant’s impairment would prevent any
person from performing substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(iii),
404.1525. That is, a claimant who satisfies steps one and two qualifies automatically for
disability benefits if the claimant suffers a listed impairment. See Williams v. Astrue, 416

F. App’x 861, 862 (11th Cir. 2011) (“If, at the third step, [the claimant] proves that [an]
impairment or combination of impairments meets or equals a listed impairment, [the
claimant] is automatically found disabled regardless of age, education, or work
experience.” (citing 20 C.F.R. §§ 404.1520, 416.920; Crayton v. Callahan, 120 F.3d 1217,

1219 (11th Cir. 1997)).
If the claimant’s impairment or combination of impairments does not meet or
medically equal a listed impairment, the evaluation proceeds to the fourth step, where
the claimant demonstrates an incapacity to meet the physical and mental demands of

past relevant work. 20 C.F.R. § 404.1520(e). At this step, the evaluator must determine
whether the claimant has the residual functional capacity (“RFC”) to perform the
requirements of past relevant work. See id. § 404.1520(a)(4)(iv). If the claimant’s
impairment or combination of impairments does not prevent performance of past

relevant work, the evaluator will determine the claimant is not disabled. See id.
If the claimant succeeds at the preceding step, the fifth step shifts the burden to
the Commissioner to provide evidence, considering the claimant’s RFC, age, education

and past work experience, that the claimant is capable of performing other work. Id.
§ 404.1512(b)(3), 404.1520(g). If the claimant can perform other work, the evaluator
will not find the claimant disabled. See id. § 404.1520(a)(4)(v); see also id. § 404.1520(g).
If the claimant cannot perform other work, the evaluator will find the claimant disabled.
20 C.F.R. §§ 404.1520(a)(4)(v), 404.1520(g).

The court must determine whether substantial evidence supports the
Commissioner’s decision and whether the Commissioner applied the proper legal
standards. Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011). The court
reviews the ALJ’s “‘decision with deference to the factual findings and close scrutiny of

the legal conclusions.’” Parks ex rel. D.P. v. Comm’r, Social Sec. Admin., 783 F.3d 847, 850
(11th Cir. 2015) (quoting Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991)).
Indeed, “an ALJ’s factual findings . . . ‘shall be conclusive’ if supported by ‘substantial
evidence.’” Biestek v. Berryhill, 587 U.S. – , 139 S. Ct. 1148, 1153 (2019) (citing 42 U.S.C.

§ 405(g)). Although the court must “scrutinize the record as a whole . . . to determine
if the decision reached is reasonable . . . and supported by substantial evidence,” the
court “may not decide the facts anew, reweigh the evidence, or substitute [its]
judgment” for that of the ALJ. Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir.

1983) (citations omitted). “[W]hatever the meaning of ‘substantial’ in other contexts,
the threshold for such evidentiary sufficiency is not high. Substantial evidence . . . . is
‘more than a mere scintilla,’ . . . [and] means – and means only – such relevant evidence

as a reasonable mind might accept as adequate to support a conclusion.’” Biestek, 139
S. Ct. at 1154 (citations omitted). Therefore, substantial evidence exists even if the
evidence preponderates against the Commissioner’s decision. Moore v. Barnhart, 405
F.3d 1208, 1211 (11th Cir. 2005).
FACTUAL AND PROCEDURAL HISTORY
Viator protectively filed an application for a period of disability and disability

insurance benefits on October 20, 2020, alleging disability as of October 7, 2019. (Tr.
219). On February 5, 2021, the Commissioner denied her claims. (Tr. 114-17). On
March 3, 2021, Viator requested reconsideration of the Commissioner’s decision (Tr.
125). The Commissioner reviewed Viator’s claim yet determined the previous denial

was proper under the law. (Tr. 126-35). On May 4, 2021, Viator filed a request for a
hearing. (Tr. 136). On December 1, 2021, the ALJ held a hearing. (Tr. 42-76). On
March 11, 2022, the ALJ issued an opinion denying Viator’s claims. (Tr. 19-37).
Applying the five-step sequential process, the ALJ found at step one that Viator

did not engage in substantial gainful activity after October 7, 2019, her alleged disability
onset date. (Tr. 25). At step two, the ALJ found Viator manifested the severe
impairments of cervical spinal stenosis, status post anterior cervical discectomy and
fusion (ACDF), left knee degenerative joint disease, left shoulder supraspinatus

tendinopathy and impingement, fibromyalgia, and obesity. (Id.). At step three, the ALJ
found that Viator’s impairments, or combination of impairments, did not meet or
medically equal any impairment for presumptive disability listed in 20 C.F.R. Part 404,

Subpart P, Appendix 1. (Tr. 29).
Next, the ALJ found that Viator exhibited the residual functional capacity
(“RFC”) to perform light work, with the following additional limitations: “she can
frequently climb ramps and stairs. She can occasionally balance, stoop, kneel, crouch,
and crawl. She should avoid ladders, ropes, scaffolds, unprotected heights, commercial
driving, and hazardous machines. She can occasionally reach overhead. She can have

occasional exposure to extreme temperatures, humidity, and vibration.” (Id.).
At step four, the ALJ determined Viator retained the ability to perform her past
relevant work as a retail shift manager. (Tr. 35). At step five, the ALJ alternatively
determined, considering Viator’s age, education, work experience, and RFC, she could

perform a significant number of other jobs in the national economy, including cashier
II, ticket taker, and ticket seller. (Tr. 35-36). Accordingly, the ALJ determined Viator
has not suffered a disability, as defined by the Social Security Act, since October 7,
2019. (Tr. 37).

On March 30, 2022, Viator filed a request for review of the ALJ’s opinion before
the Appeals Council. (Tr. 214). On October 11, 2022, the Appeals Council denied
Viator’s request for review, making the ALJ’s decision the Commissioner’s final
decision. (Tr. 1-3). Viator filed her complaint with this court on December 1, 2022.

(Doc. 1).
ANALYSIS
In this appeal, Viator argues the ALJ improperly evaluated her subjective

complaints of pain, resulting in an RFC finding that lacks substantial evidentiary
support. For the reasons discussed below, the undersigned concludes Viator’s
contentions do not warrant reversal.
As previously discussed, at step four of the sequential analysis the ALJ formulates
a claimant’s RFC by assessing his or her “ability to meet the physical, mental, sensory,

and other requirements of work.” 20 C.F.R. § 404.1545(a)(4). The claimant’s RFC
represents “the most [he or she] can still do despite [their] limitations.” Id. at §
404.1545(a)(1). Assessing a claimant’s RFC lies within the exclusive province of the
ALJ. See id. at § 404.1527(d)(2) (“[T]he final responsibility for deciding [a claimant’s

RFC] is reserved to the Commissioner.”); id. at § 404.1546(c) (“[T]he administrative law
judge . . . is responsible for assessing [a claimant’s] residual functional capacity.”); Oates
v. Berryhill, No. 17-0130-MU, 2018 WL 1579475, at *8 (S.D. Ala. Mar. 30, 2018) (“The
responsibility for making the residual functional capacity determination rests with the

ALJ.”); Del Rio v. Berryhill, No. 3:16-CV-00489-RFC, 2017 WL 2656273, at *8 (W.D.
Tex. June 20, 2017) (“The ALJ has the sole responsibility of determining Plaintiff’s
RFC . . . .”).
Viator argues the ALJ improperly found she possessed the residual functional

capacity to perform a limited range of light work.
Light work involves lifting no more than 20 pounds at a time with
frequent lifting or carrying of objects weighing up to 10 pounds. Even
though the weight lifted may be very little, a job is in this category when
it requires a good deal of walking or standing, or when it involves sitting
most of the time with some pushing and pulling of arm or leg controls.
To be considered capable of performing a full or wide range of light work,
you must have the ability to do substantially all of these activities. 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).
Viator contends her subjective symptoms prevent her from performing light

work.
A three-part “pain standard” applies when a claimant attempts to establish
disability through her own testimony of pain or other subjective
symptoms. Wilson[ v. Barnhart], 284 F.3d [1219,] 1225[ (11th Cir. 2002)].
The pain standard requires evidence of an underlying medical condition
and either objective medical evidence that confirms the severity of the
alleged pain arising from that condition or a showing that the objectively
determined medical condition is of such severity that it can be reasonably
expected to give rise to the alleged pain. Id.

Porto v. Acting Comm’r of Soc. Sec. Admin., 851 F. App’x 142, 148 (11th Cir. 2021). A
claimant’s testimony coupled with evidence that meets this standard suffice “to support
a finding of disability.” Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991) (citation
omitted).
Social Security Ruling (“SSR”) 16-3p mandates the ALJ “will consider any
personal observations of the individual in terms of how consistent those observations
are with the individual’s statements about his or her symptoms as well as with all of the
evidence in the file.” SSR 16-3p, *7 (Mar. 16, 2016). An ALJ rendering findings
regarding a claimant’s subjective symptoms may consider a variety of factors, including:
the claimant’s daily activities; symptom location, duration, frequency, and intensity;
precipitating and aggravating factors; type, dosage, effectiveness, and side effects of
medication taken to alleviate the symptoms; and other factors concerning functional
limitations and restrictions due to symptoms. See 20 C.F.R. §§ 404.1529(c)(3), (4); see
also Bailey v. Soc. Sec. Admin., Comm’r, 791 F. App’x 136, 143 (11th Cir. 2019) (“‘If objective
medical evidence does not substantiate the person’s statements about the intensity,

persistence, and functionally limiting effects’ of the fibromyalgia symptoms, the ALJ
will ‘consider all of the evidence in the case record, including the person’s daily activities,
medications or other treatments the person uses, or has used, to alleviate symptoms;
the nature and frequency of the person’s attempts to obtain medical treatment for

symptoms; and statements by other people about the person’s symptoms.’” (citing SSR
12-2p, 77 Fed. Reg. 43643 (July 25, 2012))).
SSR 16-3p further explains that the ALJ’s decision “must contain specific reasons
for the weight given to the individual’s symptoms, be consistent with and supported by

the evidence, and be clearly articulated so the individual and any subsequent review can
assess how the adjudicator evaluated the individual’s symptoms.” SSR 16-3p, at *10; see
also Wilson, 284 F.3d at 1225 (If an ALJ discredits a claimant’s subjective testimony, the
ALJ “must articulate explicit and adequate reasons for doing so.”).2

2 As noted, Viator suffers from fibromyalgia, among other conditions. “[F]ibromyalgia . . . is
‘characterized primarily by widespread pain in the joints, muscles, tendons, or nearby soft tissues that
has persisted for at least 3 months.’” Laurey v. Comm’r of Soc. Sec., 632 F. App’x 978, 987-88 (11th Cir.
2015) (citing SSR 12-2p, 77 Fed. Reg. 43640, 43641 (July 25, 2012)). “The symptoms of fibromyalgia
‘can wax and wane so that a person may have bad days and good days.’” Bailey v. Soc. Sec. Admin.,
Comm’r, 791 F. App’x 136, 142 (11th Cir. 2019) (citing SSR 12-2p, 77 Fed. Reg. 43644 (July 25, 2012)).
“For this reason, ‘longitudinal records reflecting ongoing medical evaluation and treatment from
acceptable medical sources are especially helpful in establishing both the existence and severity of
[fibromyalgia].’” Id. at 142-43 (alteration in original) (citing SSR 12-2p, 77 Fed. Reg. 43642 (July 25,
2012)).
However, it remains settled in the Eleventh Circuit that “a lack of objective evidence”
constitutes the “hallmark” of fibromyalgia. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005);
accord Horowitz v. Comm’r of Soc. Sec., 688 F. App’x. 855, 863 (11th Cir. 2017) (per curiam); Brown-Gaudet-
Evans v. Comm’r of Soc. Sec., 673 F. App’x. 902, 906 (11th Cir. 2016) (per curiam); Hernandez v. Comm’r of
Viator testified during the December 1, 2021, administrative hearing that she
underwent cervical spine fusion surgery in early November, and she had not yet fully

recovered. Before the surgery, she experienced level 7-8 pain in her cervical spine that
radiated into her arms, leaving her arms feeling numb and causing her to drop items.
(Tr. 48-49). Osteoarthritis and fibromyalgia in her hips also caused problems with her
ability to work. The pain medications she received after surgery helped some with her

other pain symptoms. (Tr. 50-51).
She also experienced depression and anxiety, which have increased as her
physical symptoms worsened. When she worked, she would sometimes cry for no
reason. She needed to take extra work breaks or miss days of work because she could

not cope with everyday life. She feels uncomfortable at family gatherings or any other
situations with a large number of people. An activity like grocery shopping may trigger
a panic attack. (Tr. 51-53).
Viator does not sleep well because of her neck, shoulder, and hip pian. She can

prepare a sandwich or microwave meal, but she does not do any other cooking because

Soc. Sec., 523 F. App’x. 655, 657 (11th Cir. 2013) (per curiam); Somogy v. Comm’r of Soc. Sec., 366 F. App’x.
56, 63 (11th Cir. 2010) (per curiam). Fibromyalgia “often lacks medical or laboratory signs, and is
generally diagnosed mostly on a[n] individual’s described symptoms.” Moore, 405 F.3d at 1211. Thus,
“a claimant’s subjective complaints of pain are often the only means of determining the severity of a
patient’s condition and the functional limitations caused thereby[,] . . . ‘render[ing] . . . over-emphasis
upon objective findings inappropriate.’” Somogy, 366 F. App’x at 64 (fourth alteration in original)
(quoting Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 248 (11th Cir. 2007)).

Therefore, “[t]he pain standard also guides the ALJ’s evaluation when a claimed disability is
fibromyalgia.” Bailey, 791 F. App’x at 142; see also Laurey, 632 F. App’x at 987 (“The ALJ uses these
same standards to evaluate a claimant’s fibromyalgia.”).
she fears she will forget she is cooking. She needs help washing her hair because she
cannot reach up or bend over. She also needs help tying her shoes and putting on

pants. She can sit for ten to 15 minutes, then she needs to stand for ten to 15 minutes.
She reads the Bible and watches television, but she cannot focus on those activities long
because of the pain.
Her post-surgical pain medication makes her sleepy, so she needs to take naps

during the day. However, prior to the surgery, she did not take any prescription
medication. She cannot bend her neck to look upward, downward, or to the side. She
cannot focus on any task for more than approximately ten minutes. In addition to
addressing her daytime sleepiness, lying down on pillows temporarily alleviates her neck

pain. She needs to lie down for a total of several hours every day. (Tr. 54-62). If she
could not lie down, she would experience “burning and just horrific tingling” neck pain.
(Tr. 62). Viator’s partner performs most household tasks, as Viator can do no more
than fold a few towels and prepare sandwiches and microwave meals. Even before her

surgery, Viator did not drive because she experienced numbness and tingling in her
arms, particularly her left arm, and she could not adequately turn her head. (Tr. 62-66).
Viator also submitted a November 19, 2020, Function Report as part of her

disability application. She reported constant pain in her neck, shoulder, and knee. She
does not sleep well because of her neck and shoulder pain. She cannot sit for very long
before her neck starts hurting, and she cannot stand for very long before her knee starts
hurting. She has trouble dressing because she cannot raise her left shoulder to put on
a shirt, and her knee buckles when she attempts to put on pants. She cannot shave
because her knee buckles, and reaching overhead causes shoulder and neck pain.

She can prepare simple meals that require only heating up. Beyond that, she
cannot cook because her shoulder pain causes her to drop items, she cannot stand long
enough to complete the task, and she cannot lift a skillet or bottle of water. She does
not do any chores because of pain and an inability to stand. She goes outside only to

sit on her porch. She drives only when she must attend a doctor’s appointment, but
doing so wears her out. She shops infrequently, and only for necessary items. Her
partner does most of the household shopping.
She can perform financial tasks like paying bills, counting change, handling a

savings account, and using a checkbook. She has no hobbies or interests other than
watching television, but she cannot do that for very long at a time because she falls
asleep and cannot sit still. She speaks to others on the telephone, yet she does not
otherwise socialize due to pain, bipolar disorder, social phobia, and anxiety.

Her condition affects her abilities to lift, squat, bend, stand, reach, walk, sit, kneel,
climb stairs, use her hands, and get along with others. She cannot walk for long without
needing to rest for at least a few minutes. She cannot concentrate for long, and she

does not finish tasks because she does not begin them. She does “ok” with written and
spoken instructions. She tries to respect authority figures, but she sometimes loses her
temper and feels others are acting mean. However, she has not lost a job due to
problems getting along with others. She does not adequately manage stress or change,
and she feels stress about the world ending. She uses a brace or splint every day. Her
medications include ibuprofen and a muscle relaxer. (Tr. 278-89).

The ALJ acknowledged Viator’s Function Report and hearing testimony. After
weighing that testimony and the medical evidence, the ALJ found Viator’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. 30).
Despite Viator’s severe impairments, the ALJ concluded she could perform a limited
range of light work. (Tr. 30, 33). In so finding, the ALJ properly applied the Eleventh

Circuit pain standard. Moreover, the ALJ adequately articulated the reasons for his
finding, and the finding enjoyed substantial evidentiary support.
First, the record medical evidence supports the ALJ’s conclusion. Primary care
records from Whatley Health Services between January 23, 2018, and March 18, 2020,

depict Viator primarily appeared for treatment of acute medical conditions, and clinical
examinations produced findings related only to those conditions. (Tr. 333-377). On
one occasion, January 23, 2018, Viator complained of left knee pain, and the clinical

examination revealed mild pain with range of motion in the left knee. (Tr. 339-41).
Viator received treatment from the Clinic for Rheumatic Disease between
October 11, 2018, and May 4, 2019. (Tr. 378-415). On October 11, 2018, Viator
reported constant aching joints, dropping items with her right hand, occasional
numbness in her toes when she awakens, severe fatigue, hand and ankle swelling,
anxiety, depression, migraines, poor sleep, and restless legs. The clinical examination

revealed mild pain and tenderness with range of motion in the cervical spine; soft tissue
discomfort in the right posterior shoulder, upper back, low back, and right lateral
epicondyle; and six out of 18 total tender points. Viator displayed tenderness in 40
joints, including her right shoulder, right elbow, right wrist, left wrist, right hand, left

hand, left knee, right knee, left ankle, right foot, and left foot. (Tr. 380-86). The
treatment record contains two different pain scale scores on this date: 3 and 7.5. (Tr.
380, 386).
On October 22, 2018, a right elbow x-ray revealed a small marginal osteophyte

of the olecranon process. (Tr. 388). X-rays of both feet revealed small marginal
osteophytes of the inferior calcaneal tuberosity, but no other bony or soft tissue
abnormalities. (Tr. 389). X-rays of both hands produced normal findings. (Tr. 390).
A sacroiliac x-ray revealed sclerosis in both SI joints, and erosion of the left SI joint

could not be excluded. (Tr. 391). Viator received a positive antinuclear antibody (ANA)
test, indicating a possible autoimmune disorder. (Tr. 392-99).
On November 1, 2018, Viator returned to receive her laboratory and x-ray

results, but the doctor did not conduct a clinical examination. Viator reported level-
nine pain. (Tr. 399-402).
On January 9, 2019, Viator reported hurting everywhere, but primarily in her
neck, wrists, hands, knees, and right elbow. The pain heightens in the morning and
after extended sitting. She sleeps well but nonetheless wakes feeling very unrested. She
rated her typical pain level at seven of ten, and she rated her typical fatigue level at eight

of ten. She needed to leave work early two days before the appointment due to pain.
Taking ibuprofen helps with the pain. She also experiences numbness in her left second
toe, mostly in the early morning. Her fingers sometimes appear blue when she takes a
warm shower. She reported headaches, memory difficulty, anxiety, and depression.

The physical examination produced tenderness at the cervical, thoracic, and lumbar
spine; normal gait; soft tissue discomfort in 17 out of 18 tender points; normal memory;
full orientation; appropriate mood and affect; and tenderness in 72 joints. Dr. Donna
Maneice prescribed Cymbalta. (Tr. 403-07).

On May 3, 2019, Viator reported her overall pain improved after starting
Cymbalta, but she still experienced aches and pains all over, particularly after waking in
the morning. She continued to experience fatigue, and she believed Cymbalta may have
caused restless leg sensations when she sleeps. She feels tired every day, and she often

experiences headaches. She also reported anxiety and depression. The physical
examination produced tenderness of the cervical, thoracic, and lumbar spine; normal
gait; normal deformity or diminished joint range of motion; soft tissue discomfort in

eleven out of 18 tender points; and 72 tender joints. Nurse practitioner Mary Beth
Loomis added Celebrex to Viator’s medications and referred her for a sleep study. (Tr.
408-13).3
Viator suffered a workplace accident on August 26, 2019. She slipped and fell,

using her left arm to break her fall. (Tr. 417, 669).
On September 19, 2019, Viator saw Dr. John Miller at Norwood Clinic for a
worker’s compensation evaluation of her left neck and shoulder. She displayed fullness
in the left trapezius supraspinatus area with palpatory tenderness over the

supraspinatus, and decreased range of motion in the left upper extremity. Dr. Miller
opined Viator experienced a muscle spasm, prescribed physical therapy and anti-
inflammatories, and imposed a 15-pound lifting restriction. (Tr. 693-95). On October
10, 2019, Viator reported to Dr. Miller that the treatment did not help. Dr. Miller

continued to assess a muscle strain. He changed Viator’s medications, and he continued
her physical therapy. (Tr. 696-98).
Viator received treatment from Honeycutt Chiropractic between October 11,
2019, and April 9, 2020. (Tr. 416-50). During her initial examination, Viator stated she

suffered a work accident on August 26, 2019, which resulted in level-nine pain in her
neck, left shoulder, and left knee, in addition to headaches and difficulty sleeping. She
also experiences constant stiffness and swelling. The pain interferes with her abilities

to perform all activities. The clinical examination revealed positive bilateral foramina
compression, indicating possible cervical disc lesion or misalignment; positive shoulder

3 The record does not contain any sleep study results.
depressor test on the left, indicating cervical or brachial nerve root irritation; positive
dynamometer test on the left, indicating the interplay of muscle and nerve in the upper

extremity; positive Kemp test bilaterally, indicating possible lumbar disc and root lesion;
and muscle spasms in the cervical, thoracic, and lumbar spine, indicating possible
interference with the function of a muscle or group resulting in possible restricted range
of motion. She displayed some pain with the heel and toe walk, and she produced an

antalgic gait. She displayed decreased range of motion in the cervical spine with
moderate pain. (Tr. 417-18).
Viator underwent three MRI’s on October 17, 2019. The cervical spine MRI
revealed normal alignment of the cervical vertebrae with no listhesis, fracture, focus,

osseous lesion, infection, or acute ligamentous injury. At C3-4 through C5-6, Viator
experienced spinal stenosis with flattening of the spinal cord due to disc bulges and disc
herniations. She also experienced left C4-5 neural foramen narrowing that may affect
the left C5 nerve root. (Tr. 421-22). The left shoulder MRI revealed supraspinatus

tendinopathy without a rotator cuff tear, but otherwise unremarkable results. (Tr. 423).
The left knee MRI revealed a horizontal tear of the medial meniscus and
chondromalacia patella. (Tr. 424).

Throughout her treatment with Honeycutt Chiropractic, Viator reported pain in
her neck, back, shoulder, and knee; headaches; stiffness; difficulty sleeping; difficulty
turning her neck; and antalgic gait. However, toward the end of the treatment period,
her gait and sleep improved, and she could more easily sit down and arise from a seat.
(Tr. 425-450).
Viator received treatment for left shoulder and neck pain from Dr. Jeffrey Davis

at Andrews Sports Medicine and Orthopaedic Center on March 11, 2021. Her
symptoms related to her August 2019 work injury. She reported constant pain ranging
from level six to level ten, with the typical score at approximately level eight. She had
received no relief from her symptoms so far. The clinical examination revealed full

alertness and orientation, emotional affect, and intact sensation in bilateral upper and
lower extremities. In the cervical vertebrae, Viator experienced normal flexion,
extension, and lateral rotation without pain; satisfactory range of motion; negative
Spurling’s test; and significant tenderness to palpation at the left neck. In her left

shoulder, Viator displayed no deformity, atrophy, or crepitation, and she experienced
moderate tenderness to palpation. She displayed good range of motion, negative
impingement signs, full muscle strength, negative cross-arm test, negative Speed’s test,
negative apprehension, no scapular winging, and satisfactory bicep and tricep strength.

Viator displayed guarded behavior throughout the examination. The right shoulder
examination was normal. (Tr. 669-70).
On April 6, 2021, after reviewing Viator’s past imaging results, Dr. Davis

recommended physical therapy for her left shoulder, and he referred her to a cervical
spine specialist for evaluation of her neck issues. (Tr. 662).
On April 21, 2021, Viator commenced physical therapy at Renew Rehab &
Wellness. She reported shoulder pain at an average level of eight of ten, along with
numbness and tingling down into her left hand, causing problems with grip. She can
lift her arm only to shoulder height and lift only light to moderate objects, but

performing both of those movements causes pain. During the session, Viator held her
left arm and neck in a very stiff posture. She displayed decreased range of motion,
widespread tenderness surrounding the shoulder, and intact sensation and reflexes. (Tr.
657-58).

On May 12, 2021, a physical therapist noted Viator had not progressed much
after seven sessions. She continued to experience significant numbness in her left hand
and fingers at times. (Tr. 649).
Also on May 12, 2021, Viator informed Dr. J. Todd Smith at St. Vincent’s

Orthopedics that she fell on her left arm at work, resulting in persistent pain in her neck
down into her left shoulder and arm, with numbness and tingling in her left hand. She
cannot turn her head fully, and attempting to do so causes pain and numbness. She did
not experience neck or shoulder problems prior to the fall. During the clinical

examination, Viator displayed full muscle strength in the right deltoid and very slight
weakness in the left deltoid. She possessed full strength in the biceps and triceps
bilaterally. She experienced very slight weakness in the left intrinsics compared to the

right. She displayed normal gait and station. Upon reviewing Viator’s past x-ray and
MRI results, Dr. Smith concluded she experienced left upper extremity radicular
symptoms, with possible peripheral entrapment neuropathy, related to her August 2019
work injury. (Tr. 534-35).
On May 19, 2021, a physical therapist stated Viator had experienced minimal
progress. Her shoulder strain had improved, but the radicular symptoms continued.

(Tr. 643).
On May 21, 2021, Dr. Davis opined Viator reached maximum medical
improvement for her left shoulder. He released her to full work duty vis-à-vis her
shoulder, and he recommended she follow up with Dr. Smith for her cervical spine.

(Tr. 635-36, 641, 645-46).
Dr. Smith obtained a cervical spine MRI on June 2, 2021. The imaging revealed
mild-to-moderate left foraminal narrowing with patent right foramen at C3-C4, left
uncinate spurring and facet hypertrophy producing severe left foraminal stenosis with

patent right foramen at C4-C5, annular bulge with moderately severe left and severe
right foraminal stenosis at C5-C6, and minimal central disc protrusion without cord
compression and only mild foraminal narrowing at C6-C7. (Tr. 529, 533).
Dr. Smith referred Viator to Southlake Orthopaedics for additional treatment of

her neck between June 7 and July 7, 2021. (Tr. 485-517). Her June 7, 2021, intake form
stated she experienced headaches, heartburn, muscular weakness, tingling, numbness,
loss of balance, anxiety, depression, and pain and numbness in her neck and shoulder.

Her problems resulted from an August 26, 2019, work injury. She reported level-seven
pain in her neck, shoulder, and knee, but the pain sometimes exceeded level seven.
Sleeping, sitting, and turning her head exacerbated her symptoms. Heat improved her
symptoms, but only for a short time. Her pain disrupted her sleep and interfered with
physical activities. Physical therapy did not help her symptoms in the past. She reported
a history of arthritis, depression, anxiety, and osteoporosis. Her medications consisted

of 800 milligrams of ibuprofen. (Tr. 502-05).
On July 7, 2021, Dr. Michael Ellerbusch administered a left upper extremity
needle electromyogram. The procedure produced extremely limited results due to
Viator’s inability to tolerate the needle insertion. Dr. Ellerbusch detected possible

mildly enlarged motor amplitudes in the left deltoid and biceps, possibly consistent with
a chronic radiculopathic process at C5, but he could not correlate the study with the
cervical paraspinals or rhomboids. He also detected radiating pain and paresthesias in
the left upper trapezius and left periscapular muscles, possibly consistent with

myofascial issues with localized trigger points that could contribute to Viator’s left
upper extremity complaints. (Tr. 510).
Dr. Ellerbusch’s July 7, 2021, clinical examination revealed fairly rigid flattening
of Viator’s cervical lordosis, limited range of motion on the left side, positive left-sided

Spurling’s maneuver, and generalized weakness of the left shoulder at 4/5 with the
examination causing pain in the left shoulder and upper trapezius. The left shoulder
also demonstrated some signs of impingement. Viator displayed mild generalized

weakness of the left bicep and tricep at 4+/5. She demonstrated normal strength in
the remainder of the upper extremity. She also demonstrated full orientation, normal
mood and affect, intact judgment and insight, normal mental status examination, intact
cranial nerves, and normal movements. (Tr. 514-16).
On July 21, 2021, Viator returned to Dr. Smith, continuing to complain of left
neck and shoulder pain, numbness and tingling going down into her left hand, and left

hand weakness. During the physical examination, Viator displayed full alertness and
orientation and pleasant mood. She produced a positive Spurling’s to the left upper
extremity. She experienced pain with neck extension and rotation to the left, along with
paresthesias all the way down to her left hand. She displayed 4+/5 muscle strength in

her left shoulder abduction, 5-/5 left tricep strength, 4+/5 left intrinsics, and full bicep
strength. She displayed slightly decreased sensation to light touch on her left lateral
deltoid region. Based upon the MRI results, nerve conduction studies, clinical history,
and physical examination, Dr. Smith concluded Viator experienced left upper extremity

radiculopathy. He recommended surgery to fuse the C4-5 and C5-6 vertebrae, and
Viator agreed to undergo the surgery. Dr. Smith stated Viator could return to work
with a 30-pound lifting restriction. (Tr. 531-32).
On October 26, 2021, Dr. Smith completed an Abilities Form stating Viator

could constantly lift up to ten pounds, frequently lift up to 20 pounds, occasionally lift
up to 35 pounds, and never lift more than 35 pounds. She could constantly sit, stand,
walk, bend, kneel, drive, finger, handle, and operate foot controls, but she could never

climb or reach above her shoulder. (Tr. 530).
On November 8, 2021, Dr. Smith performed a surgical fusion of the C4-C5 and
C5-C6 vertebrae. (Tr. 710-12).
The record does not contain records from Dr. Smith or any other physician after
Viator’s cervical spine surgery. Viator commenced post-operative physical therapy for
her neck on December 14, 2021. She reported level-four pain at her best and level-

seven pain at her worst. (Tr. 781-85). On December 15, 17, 20, and 22, 2021, she
reported the same range of pain scores. (Tr. 769-79). On December 24, 27, and 28,
2021, she reported level-four pain. (Tr. 760-68). On December 29, 2021, she reported
she still hurt, but she appeared to be feeling better and retaining some range of motion

in her neck. (Tr. 757). On January 4 and 6, 2022, she again reported pain ranging from
level four to level seven. (Tr. 749-56).
Viator discharged from physical therapy on January 7, 2022. During her final
session, she reported pain ranging from level four to level seven. She displayed

moderate tenderness to palpation in the paraspinal and upper trapezius areas. The
therapist provided the following discharge summary:
The patient is able to perform exercises correctly. The patient’s
progress towards goals is good and her tolerance to treatment is good.
Patient consents to treatment plan and goals and gives verbal informed
consent. The patient’s discharge prognosis is good. [Patient] has now
completed [plan of care] and will [discharge]. She remains slightly limited
in [left upper extremity] shoulder [active range of motion] along [with]
cervical [range of motion] although [each] have improved well along with
her [pain].

(Tr. 748).
Though Viator made progress, she did not meet all of her physical therapy goals.
She did not decrease her pain to a level zero to three. She fully met only two of her
range of motion goals, but she nonetheless significantly increased her range of motion
from the beginning of her therapy sessions. Similarly, she improved her muscle strength
in all areas, though she met only some of her strength goals. She improved her ability

to look up, down, and over her shoulder, but she continued to experience pain when
performing those movements. She obtained limited improvement in her ability to reach
overhead, and she continued to experience pain when doing so. She did not achieve
centralization of her radicular symptoms by 25-50%, and she did not decrease the

frequency of her headaches by 50%. (Tr. 745-48).
The record also contains consultative and administrative medical opinions about
Viator’s condition and abilities. Social Security regulations state that the ALJ “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] medical sources.” 20 C.F.R. § 404.1520c(a). The ALJ must apply the same
factors in the consideration of all medical opinions and administrative medical findings,
rather than affording specific evidentiary weight to any particular provider’s opinion.

Id.
Supportability and consistency constitute the most important factors in any
evaluation, and the ALJ must explain the consideration of those factors. Id. §

404.1520c(b)(2). Thus, “[t]he more relevant the objective medical evidence and
supporting explanations presented by a medical source are to support his or her medical
opinion(s) or prior administrative medical finding(s),” and “[t]he more consistent a
medical opinion(s) or prior administrative medical finding(s) is with the evidence from
other medical sources and nonmedical sources[,] the more persuasive the medical
opinions or prior administrative medical finding(s) will be.” Id. § 404.1520c(c)(1)-(2).

The ALJ also may consider the medical source’s specialty and the relationship
between the claimant and the medical source, including the length, purpose, and extent
of the treatment relationship, and the frequency of examinations. Id. § 404.1520c(c)(3)-
(5). The ALJ “may” conclude that an examining medical source will understand the

claimant’s impairments better than a medical source who only reviews evidence in the
claimant’s file. Id. § 404.1520c(c)(3)(v). The ALJ also “will consider other factors that
tend to support or contradict a medical opinion or prior administrative medical
finding,” including, but not limited to, “evidence showing a medical source has

familiarity with the other evidence in the claim or an understanding of our disability
program’s policies and evidentiary requirements.” Id. § 404.1520c(c)(5).
In addition, “[t]he opinions of agency [medical or] psychological consultants may
be considered medical opinions, and their findings and evidence are treated similarly to

the medical opinion of any other source.” Gordon v. Saul, No. 8:18-CV-829-T-SPF, 2019
WL 4254470, at *5 (M.D. Fla. Sept. 9, 2019) (citing 20 C.F.R. § 404.1513a(b)).4
Robert Kline, Ph.D., conducted a consultative psychological examination on

4 “A medical consultant is a member of a team that makes disability determinations in a State agency .
. . , or who is a member of a team that makes disability determinations for [the SSA] when [the SSA]
make[s] disability determinations.” 20 C.F.R. § 404.1616(a). “The medical consultant completes the
medical portion of the case review and any applicable residual functional capacity assessment about
all physical impairment(s) in a claim.” Id.
January 15, 2021. Viator reported her sleep fluctuates between four and nine hours a
night. Her energy level generally rests at about two out of ten, but she experienced

level-five energy on the day of the examination. She could not identify any pleasures in
life, and she experiences crying spells twice a week. She reported terrible memory and
concentration. She experienced a manic episode a week before the evaluation, meaning
she felt good, wanted to do a lot of things, and spent money she did not have. She

reported social anxiety prevents her from leaving home. She believed her constant pain,
fatigue, and inability to get along with others would prevent her from holding a job.
Dr. Kline observed normal appearance, speech, mood, and affect, with no overt
signs of anxiety. During the examination, Viator displayed full orientation; good

concentration and attention; good immediate and remote memory; good fund of
information; good abstracting abilities; no loose associations or tangential thinking; no
confusion; normal speech; good judgment and insight; and no hallucinations, delusions,
ideas of reference, phobias, obsessions, compulsions, indecision, grandiosity,

helplessness, hopelessness, or suicidal or homicidal ideation.
Viator reported her daily activities included watching a little television, lying on
the sofa and bed, moving around for a few minutes, and repeating the pattern. She

does not perform any inside or outside chores or activities. She leaves the house only
about twice a month to shop. She greatly fears the Covid virus. She talks with family
and friends daily, and she believes she gets along well with those people. She
experienced no major interpersonal conflicts in the six months preceding the interview.
Dr. Kline assessed depression in remission, social anxiety in fair remission, and
some possible hypomanic episodes from time to time. He did not believe Viator met

the criteria for bipolar disorder, and he suspected she was malingering about her daily
activities. Dr. Kline characterized Viator’s mental health prognosis as unknown, as she
provided questionable effort and motivation. Viator also had unknown restriction of
activities, unknown constriction of interests, and at worst a mild restriction in her ability

to relate to others. Dr. Kline believed she could manage benefits, though she did have
a history of mental “slowness.” She had adequate ability to function independently and
adequate abilities to understand, carry out, and remember instructions and respond
appropriately to supervision, coworkers, and work pressures in a work setting from a

mental health perspective. (Tr. 452-55).
The ALJ found Dr. Kline’s opinion somewhat persuasive, as Dr. Kline’s
examination findings and other medical evidence supported the opinion. Specifically,
the record included no psychological or psychiatric treatment records, and examination

findings from other providers throughout the administrative record reflected
appropriate mood and affect and normal orientation, memory, insight, and judgment.
Even so, the ALJ chose to give Viator “the benefit of the doubt regarding daily activities

based on her physical symptoms to improve with conservative treatment resulting in
surgical intervention and additional limitations.” (Tr. 34).
Dr. Julia Boothe conducted a consultative physical examination on February 1,
2021. Viator reported pain in her back, foot, hand, hip, leg, knee, neck, and shoulder.
She also experienced stiffness, joint swelling, and muscle spasms throughout her neck
and hips; bilateral foot numbness; left hand weakness and tingling; and left shoulder

tingling. She did not report any psychological symptoms.
During the clinical examination, Viator displayed limited range of motion in
almost all areas of her cervical and lumbar spine, hip, knee, and shoulder. She
experienced mildly impaired dexterity and mildly impaired grip strength. Her right grip

strength was four out of five, and her left grip strength was three out of five. She
displayed tibial tubercle prominence in the left knee with mild swelling and trigger
points in her knees, left shoulder, and upper back. She displayed normal reflexes in the
upper and lower extremities, full orientation, and appropriate mood and affect. Dr.

Boothe assessed cervical degenerative disc disease, fibromyalgia, bipolar disorder that
waxes and wanes, and left knee degenerative joint disease with bursitis. Viator displayed
stiffness on standing, and she required the support of a chair to push up. She limps
with left knee pain and buckling, but she does not use a walker. She could not get onto

the examination table, stand on her heels or toes, or squat. (Tr. 480-83).
Because Dr. Boothe did not provide a statement about the actions Viator could
still perform despite her impairments, the ALJ rightfully concluded Dr. Boothe did not

offer a medical opinion that required administrative consideration pursuant to Social
Security regulations. (Tr. 34); see 20 C.F.R. § 404.1513(a)(2) (defining a “medical
opinion” as “a statement from a medical source about what you can still do despite your
impairment(s) and whether you have one or more impairment-related limitations or
restrictions . . . .”).
On February 4, 2021, Dr. Victoria Hogan, a state agency consultant, conducted

a Physical Residual Functional Capacity evaluation at the administrative level. She
opined Viator could occasionally lift and/or carry up to 20 pounds, and she could
frequently lift and/or carry up to ten pounds. She could perform unlimited pushing
and pulling movements with her upper and lower extremities, within the confines of

her lifting and carrying limitations. She could stand and/or walk for a total of six hours
in an eight-hour workday, and she could sit for a total of six hours in an eight-hour
workday. She could never climb ladders, ropes, or scaffolds, but she could occasionally
climb ramps or stairs, balance, stoop, kneel, crouch, and crawl. She experienced no

manipulative, visual, or communicative limitations. She should avoid concentrated
exposure to extreme cold and heat, but she could tolerate unlimited wetness, humidity,
noise, vibration, fumes, odors, dusts, gases, and poor ventilation. She should avoid all
exposure to hazards such as machinery, heights, and uneven terrain. Dr. Hogan relied

on x-ray and MRI results and clinical findings such as minor limitation of range of
motion, mild grip strength reductions, mild swelling, trigger points in the left shoulder
and back, normal cranial nerve and reflexes, use of a chair to push up from sitting

position, limping and buckling of knee, inability to get on examination table or stand
on heels toes, inability to squat, and no use of cane or walker. (Tr. 101-02).
On April 5, Dr. Andre Fontana, a state agency consultant, conducted a Physical
Residual Functional Capacity evaluation upon reconsideration at the administrative
level. Dr. Fontana opined Viator could occasionally lift and/or carry up to 20 pounds,
and she could frequently lift and/or carry up to ten pounds. She could perform

unlimited pushing and pulling movements with her upper and lower extremities, within
the confines of her lifting and carrying limitations. She could stand and/or walk for a
total of six hours in an eight-hour workday, and she could also sit for a total of six hours
in an eight-hour workday. She could frequently balance and climb ramps and stairs.

She could occasionally crawl, crouch, kneel, stoop, and climb ladders, ropes, and
scaffolds. She had unlimited ability to reach in front or laterally, handle, finger, and
feel. She could frequently reach overhead with her left upper extremity. She had no
visual, communicative, or environmental limitations. (Tr. 109-10).

The ALJ found Dr. Hogan’s and Dr. Fontana’s opinions somewhat persuasive,
as “they [were] supported by their findings based on the evidence available at the time
they were rendered.” (Tr. 33). However, he rejected Dr. Fontana’s finding that Viator
could frequently reach overhead with her left upper extremity. The ALJ acknowledged

both that the previous x-ray, MRI, and nerve conduction findings warranted imposing
limitations related to Viator’s cervical spine and left shoulder, and that Viator
experienced improved strength and range of motion in the cervical spine and left

shoulder after her cervical spinal surgery. Therefore, the ALJ found Viator could
occasionally, not frequently, lift overhead. (Tr. 34).
On February 5, 2021, Virginia Bare, Ph.D., a state agency consultant, assessed
Viator’s mental health condition. She concluded Viator experienced mild limitation of
her abilities to interact with others; concentrate, persist, or maintain pace; and adapt or
manage herself. She experienced no limitation of her abilities to understand, remember,

or apply information. She concluded Viator experienced some mental health
symptoms, yet the medical evidence as a whole did not support the extent of mental
health impairment she alleged. (Tr. 99-100).
On April 21, 2021, Joanna Koulianos, Ph.D., a state agency consultant,

evaluated Viator’s mental health condition on reconsideration at the administrative
level. She imposed the same mental limitations as Dr. Bare. (Tr. 107-08).
The ALJ found the opinions of Drs. Bare and Koulianos persuasive, “as they are
supported by the claimant’s lack of treatment and her history of normal mental status

exams,” as well as by normal findings during Dr. Kline’s consultative examination. (Tr.
34).
The ALJ concluded this record medical evidence did not fully support Viator’s
allegations of disabling symptoms. Though the record included some abnormal

physical findings such as tenderness and decreased range of motion in the cervical spine,
Viator’s range of motion and strength improved with postoperative physical therapy.
The ALJ also observed that Viator “had abnormal physical findings such as multiple

soft tissue tender points and joint tenderness prior to the alleged onset date and it did
not prevent her from working.” (Tr. 32). Regarding Viator’s reported mental
impairment symptoms, the ALJ noted she did not receive mental health medication or
other treatment from a mental health professional. Dr. Kline reported normal mental
health findings during his examination, and records from office visits also reported
normal findings. (Id.).

As summarized above, the record clearly supports the ALJ’s conclusion that
Viator did not experience disabling mental health symptoms. Viator reported subjective
mental health symptoms like depression, social anxiety, and occasional manic episodes,
but she never received any mental health treatment, and the mental health evaluations

from Dr. Kline and the stage agency consultants did not report any disabling functional
impairments.
The ALJ also accurately noted Viator continued working until October 7, 2019,
despite consistently reporting pain symptoms, including up to 72 tender joints during a

single assessment. Her ability to work despite her impairments supports the ALJ’s
finding that Viator did not experience disabling physical symptoms during that time
period. See Ellison v. Barnhart, 355 F.3d 1272, 1275-76 (11th Cir. 2003) (considering that
the claimant “worked for several years in spite of his seizure disorder”). In addition,

the medical records from that time period reflect that though Viator consistently
reported significant pain and fatigue, she also reported over-the-counter medications
helped her pain, and she displayed normal gait.

After Viator fell at work on August 26, 2019, she reported additional symptoms
related to her neck and shoulder, and imaging tests revealed degenerative changes in
her cervical spine. However, neither Viator’s subjective complaints nor the mere
presence of degenerative spinal changes necessitates a finding of disability. See Moore,
405 F.3d at 1213 n.6 (citing McCruter v. Bowen, 791 F.2d 1544, 1547 (11th Cir. 1986)) (“To
a large extent, Moore questions the ALJ’s RFC determination based solely on the fact

that she has varus leg instability and shoulder separation. However, the mere existence
of these impairments does not reveal the extent to which they limit her ability to work
or undermine the ALJ’s determination in that regard.”) (emphasis in original); Mansfield
v. Astrue, 395 F. App’x 528, 531 (11th Cir. 2010) (diagnosis insufficient to establish

disability); Osborn v. Barnhart, 194 F. App’x 654, 667 (11th Cir. 2006) (While a doctor’s
letter reflected diagnoses, “it does not indicate in any way the limitations these diagnoses
placed on [the claimant’s] ability to work, a requisite to a finding of disability.”).
Moreover, the court must assess not whether some evidence supports Viator’s

contentions that she experiences disabling limitations, but whether substantial evidence
supports the ALJ’s decision to find the opinions unpersuasive. Moore, 405 F.3d at 1213
(quoting Bloodsworth, 703 F.2d at 1239) (“To the extent that Moore points to other
evidence which would undermine the ALJ’s RFC determination, her contentions

misinterpret the narrowly circumscribed nature of our appellate review, which precludes
us from ‘re-weigh[ing] the evidence or substitut[ing] our judgment for that [of the
Commissioner] . . . even if the evidence preponderates against’ the decision.”)
(alterations in original). It does.

Viator’s condition improved with repeated treatment from Honeycutt
Chiropractic. Most clinical examinations revealed only fairly mild reduction of muscle
strength, grip strength, and range of motion, and Viator typically displayed normal gait.
Though she continued to experience problems with her neck, Dr. Davis released her to
full work duty vis-à-vis her shoulder on May 21, 2021. On July 21, 2021, Dr. Smith

imposed a 30-pound lifting restriction, and on October 26, 2021, he stated she could
constantly lift up to ten pounds, frequently lift up to 20 pounds, and occasionally lift up
to 35 pounds. Her only other limitations included climbing and reaching above her
shoulder. Those restrictions comport with the ability to perform light work, within the

additional limitations the ALJ imposed. In addition, Viator’s condition appeared to
improve after her November 8, 2021, surgery. Though she did not meet all the goals
her physical therapist set for her, and she continued to report pain between level four
and level seven throughout physical therapy, she significantly improved her strength

and range of motion. Her physical therapist characterized her progress as good and the
limitations on her upper extremity range of motion as slight.
The consultative and state agency assessments also provide substantial
evidentiary support for the ALJ’s opinion about the extent of Viator’s limitations. Dr.

Boothe did not provide a function-specific assessment, and her clinical evaluation
contains mixed results. Most of the functional limitations Dr. Boothe described –
including stiffness on standing, using a chair to push up, limping with knee pain and

buckling, and inability to get onto the examination table, stand on heels or toes, and
squat – related to Viator’s lower extremities, and the remainder of the medical evidence
does not support disabling limitations in the lower extremities. Dr. Boothe also
detected some upper extremity impairments, but those fell within the mild to moderate
range. Drs. Hogan and Fontana, the state agency consultants, assessed limitations
generally consistent with the ALJ’s RFC finding.

The ALJ also found Viator’s
activities of daily living further diminish the persuasiveness of her
allegations. The claimant . . . reported that she can follow written and
spoken instructions, manage her personal care with some limitations, take
medications without needing reminders, prepare meals with assistance,
drive and leave home, sporadically shop in stores, manage her finances,
and talk with others on the phone . . . . At the psychological consultative
examination, the claimant reported that she watches television, talks with
family and friends, shops in stores twice a month, and fee[l]s that she gets
along well with people . . . . These activities of daily living are consistent
with the ability to perform a range of light work and are directly
contradictory to the claimant’s allegation that she is unable to work in any
capacity.

(Tr. 33).
Viator argues the ALJ misconstrued the evidence regarding her activities. Social
Security regulations permit an ALJ to consider a claimant’s daily activities when
assessing the effect of her subjective symptoms on her ability to work. See 20 C.F.R. §
404.1529(c)(3)(i). But, as numerous courts have cautioned, “‘participation in everyday
activities of short duration’ does not disqualify a claimant from disability,” as “[i]t is the
ability to engage in gainful employment that is the key, not whether a plaintiff can
perform minor household chores or drive short distances.” Love v. Colvin, No. 6:15-
CV-338-WMA, 2016 WL 741974, at *5 (N.D. Ala. Feb. 24, 2016) (quoting Lewis v.
Callahan, 125 F.3d 1436, 1441 (11th Cir. 1997)) (internal quotation marks and citations
omitted). Rather, an ALJ should rely upon evidence of a claimant’s daily activities as a
“basis to discredit a claimant’s testimony when [his or] her daily activities demonstrate
a higher level of functioning than her alleged disabling symptoms would allow.” Id.

Though the ALJ’s statement that Viator’s daily activities “are directly
contradictory to [her] allegation that she is unable to work in any capacity” follows this
legal framework, his statement that Viator’s daily activities “are consistent with the
ability to perform a range of light work” does not. The minimal activities Viator

described do not add up to the ability to perform the functional requirements of light
work, including lifting up to 20 pounds, walking, standing, and/or pulling arm and leg
controls.
However, even if the ALJ erred in his statements about Viator’s daily activities,

that error caused no harm. While Viator’s daily activities would not in and of
themselves equate to the ability to perform full-time work, the ALJ did not rely solely
on those activities as a basis for his RFC finding. He also found that when combined
with the other evidence of record, Viator’s activities undermined her subjective

complaints. That determination found support both in applicable law and in the record
evidence. Moreover, as discussed previously, the medical and other record evidence
provides substantial evidentiary support for the ALJ’s RFC finding.

In summary, taken as a whole, the medical and other record evidence provides
substantial evidentiary support for the ALJ’s RFC finding, and the ALJ applied proper
legal standards. Accordingly, the ALJ did not err in assessing Viator’s residual
functional capacity or finding Viator did not suffer a disability.°
CONCLUSION
For the foregoing reasons, the court AFFIRMS the Commissioner’s decision.
The court will enter a separate final judgment.
DONE this 6" day of May, 2024.
4 Chane
UNITED STATES MAGISTRATE JUDGE

° Viator argues the ALJ “cherry-picked” only the facts that supported his decision and ignored other
facts that would support a disability finding. (Doc. 15, at 15-16). However, as set forth herein, the
court finds the record evidence as a whole provides substantial evidentiary support for the AL]’s
decision.
37

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9992159. Public record. Not legal advice.