McDonald v. Kijakazi

Filing 18

MEMORANDUM OPINION AND ORDER The Court construes McDonald's 10 brief in support of his Complaint as a motion for summary judgment and the Commissioner's 15 brief in opposition to the Complaint as a motion for summary judgment; it is ORDERED as follows: 1. McDonald's 10 motion for summary judgment is DENIED; 2. The Commissioner's 15 motion for summary judgment is GRANTED; 3. The decision of the Commissioner is AFFIRMED; A separate judgment will issue. Signed by Magistrate Judge Jerusha T. Adams on 9/26/2024. (AM)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
WILLIE MCDONALD,
Plaintiff,
v.
MARTIN J. O’MALLEY,
Commissioner of Social Security,
Defendant.

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CASE NO. 1:23-cv-381-JTA
(WO)

MEMORANDUM OPINION AND ORDER
Pursuant to 42 U.S.C. § 405(g), the claimant, Willie McDonald, brings this action
to review a final decision by the Commissioner of Social Security (“Commissioner”). (Doc.
No. 1.) 1 The Commissioner denied McDonald’s claim for a Period of Disability and
Disability Insurance Benefits (“DIB”). The Court construes McDonald’s brief in support
of his Complaint (Doc. No. 10) as a motion for summary judgment and the Commissioner’s
brief in opposition to the Complaint (Doc. No. 15) as a motion for summary judgment. The
parties have consented to the exercise of dispositive jurisdiction by a magistrate judge
pursuant to 28 U.S.C. § 636(c). (Docs. No. 11, 12.)
After careful scrutiny of the record and the motions submitted by the parties, the
Court finds that McDonald’s motion for summary judgment is due to be DENIED, the

1

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

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 FACTS

McDonald is an adult male with a high school education and prior work experience
as a store laborer, fast food cook, and warehouse worker. (R. 52–55, 290, 310.) 2 He alleged
a disability onset date of October 1, 2019, due to learning disability, chronic back issues,
chronic carpal tunnel, leg pain, spinal cord deterioration, and failed back surgery. (R. 264,
289.)
On April 1, 2021, McDonald filed a Title II application (42 U.S.C. §§ 401, et seq.)
for a period of disability and DIB. (R. 264.) McDonald’s claim was denied initially and
upon reconsideration. (R. 136, 142.) McDonald requested an administrative hearing on
April 21, 2022. (R. 146.) Following an administrative hearing, the Administrative Law
Judge (“ALJ”) denied McDonald’s request for a period of disability and DIB in a decision
dated November 2, 2022. (R. 36.)
McDonald requested review by the Appeals Council, and it denied review. (R. 17.)
Then, McDonald requested the Appeals Council reopen the decision to reconsider in light
of new evidence. (R. 8.) The Appeals Council denied reopening the case. (R. 10.)
Consequently, the hearing decision became the final decision of the Commissioner. See 42
U.S.C. § 405(g); Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001) (citation omitted)

Citations to the administrative record are consistent with the transcript of administrative
proceedings filed in this case. (See Doc. No. 9.)
2

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(“When as in this case, the ALJ denies benefits and the [Appeals Council] denies review,
[the court] reviews[s] the ALJ’s decision as the Commissioner’s final decision.”).
On June 14, 2023, McDonald filed this action seeking review of the Commissioner’s
final decision. (Doc. No. 1.) The parties have briefed their respective positions. (Docs. No.
10, 15, 16.) This matter is ripe for review.
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
court “must scrutinize the record as a whole to determine if the decision reached is
reasonable and supported by substantial evidence.” Schink v. Comm’r of Soc. Sec., 935
F.3d 1245, 1257 (11th Cir. 2019) (citations omitted). “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
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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 DIB must prove that he is
disabled. See 20 C.F.R. § 404.1505. The Act defines “disability” 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 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. § 405.1505(a).
Disability under the Act is determined under a five-step sequential evaluation
process. 20 C.F.R. § 404.1520. The evaluation is made at the hearing conducted by the
ALJ. See Washington v. Comm’r of Soc. Sec., 906 F.3d 1353, 1359 (11th Cir. 2018). First,
the ALJ must determine whether the claimant is currently engaged in substantial gainful
activity. 20 C.F.R. § 404.1520(b). “Substantial gainful activity” is work activity that
involves significant physical or mental activities. 20 C.F.R. § 404.1572(a). If the ALJ finds
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that the claimant is engaged in substantial gainful activity, the claimant cannot claim
disability. 20 C.F.R. § 404.1520(b). Second, the ALJ must determine whether the claimant
has a medically determinable impairment or a combination of impairments that
significantly limit the claimant’s ability to perform basic work activities. 20 C.F.R. §
404.1520(c). Absent such impairment, the claimant may not claim disability. Id. Third, the
ALJ must determine whether the claimant meets or medically equals the criteria of an
impairment listed in 20 C.F.R. § 404, Subpart P, Appendix 1 (20 C.F.R. §§
404.1520(d), 404.1525, and 404.1526). If such criteria are met, then the claimant is
declared disabled. 20 C.F.R. § 404.1520(d).
If the claimant has failed to establish that he is disabled at the third step, the ALJ
may still find disability under the next two steps of the analysis. At the fourth step, the ALJ
must determine the claimant’s residual functional capacity (“RFC”), which refers to the
claimant’s ability to work despite his impairments. 20 C.F.R. § 404.1520(e). The ALJ must
determine whether the claimant has the RFC to perform past relevant work. 20 C.F.R. §
404.1520(f). If it is determined that the claimant is capable of performing past relevant
work, then the claimant is not disabled. 20 C.F.R. § 404.1560(b)(3). If the ALJ finds that
the claimant is unable to perform past relevant work, then the analysis proceeds to the fifth
and final step. 20 C.F.R. § 404.1520(g)(1).
In this final analytical step, the ALJ must decide whether the claimant is able to
perform any other relevant work corresponding with his RFC, age, education, and work
experience. 20 C.F.R. § 404.1560(c). Here, the burden of proof shifts from the claimant to
the ALJ in proving the existence of a significant number of jobs in the national economy
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that the claimant can perform given his RFC, age, education, and work experience. 20
C.F.R. §§ 404.1520(g), 404.1560(c). See Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir.
1987) (“The burden then shifts to the Secretary to show the existence of other jobs in the
national economy which, given the claimant’s impairments, the claimant can perform.”).
To determine the existence of other jobs which the claimant can perform, the ALJ may rely
on the testimony of a vocational expert (“VE”). Winschel v. Comm’r of Soc. Sec., 631 F.3d
1176, 1180 (11th Cir. 2011).
IV.

ADMINISTRATIVE DECISION

Within the structure of the sequential evaluation process, the ALJ found that
McDonald had not engaged in substantial gainful activity since the alleged onset date. (R.
28.) The ALJ determined that McDonald suffers from the following severe impairments
that significantly limit his ability to perform basic work activities: back and neck disorder,
neuropathy, obesity, depression, anxiety, and learning disorder. (R. 28–29.) Nevertheless,
the ALJ concluded that McDonald does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the listed impairments in
20 C.F.R. § 404, Subpart P, Appendix 1. (R. 29.)
After consideration of the record, the ALJ determined that McDonald has the RFC
to perform sedentary work as defined in 20 C.F.R. § 404.1467(a), except
[McDonald] is limited to occasionally climbing ramps and stairs, and never
climbing ladders, ropes, or scaffolds. He is able to occasionally balance,
stoop, kneel, crouch, and crawl, and needs a handheld assistive device for all
ambulation. He can never be exposed to unprotected heights or moving
mechanical parts. [McDonald]’s ability to understand, remember, and apply
information and concentrate, persist, and maintain pace would be limited to
performing simple and routine and some detailed but not complex tasks. He
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can frequently interact with supervisors and coworkers, and occasionally
with the public, and handle occasional changes in a routine work setting.
(R. 31.) In determining the RFC, the ALJ found that McDonald’s statements regarding the
intensity, persistence, and limiting effects of his symptoms are “not entirely consistent with
the medical evidence and other evidence of record.” (R. 32.)
Nevertheless, the ALJ concluded, considering McDonald’s age, education, work
experience, and RFC, he is not capable of performing his past work as a store laborer, fast
food cook, or warehouse worker. (R. 35.) However, the ALJ determined that there are a
significant number of jobs in the national economy that McDonald can perform. (R. 35.)
Based on the testimony of a VE during the hearing, the ALJ determined that McDonald
could perform the requirements of three representative occupations, including laminator,
hand mounter, and document preparer. (R. 36.)
The ALJ further concluded that McDonald had not been under a disability from
September 29, 2020, to November 2, 2022, the date of the ALJ decision. (R. 36.) The ALJ
found that based on the application for a period of disability and DIB, McDonald is not
disabled under sections 216(i) and 223(d) of the Social Security Act. (R. 36.)
V.

DISCUSSION

McDonald presents four arguments in this appeal. (Doc. No. 10 at 1.) First, he argues
the ALJ failed to meet the fifth-step burden because of flawed testimony by the VE and
reliance on an obsolete job. (Id. at 8, 10–11.) Second, McDonald argues the ALJ failed to
properly analyze any upper extremity limitation or the combination of all impairments
when determining his RFC. (Id. at 12.) Third, he argues the ALJ failed to comply with 20
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C.F.R. § 404.1520c because the ALJ did not address a medical opinion from Robert
Hannahan, M.D. (Id. at 14.) Fourth, McDonald argues the ALJ failed to properly apply the
pain standard. (Id.) The Court addresses each argument in turn.
A.

Fifth-Step Finding

During the fifth step of the evaluation process, the ALJ must show “‘the existence
of ... jobs in the national economy which, given the claimant’s impairments, the claimant
can perform.’” Goode v. Comm’r of Soc. Sec., 966 F.3d 1277, 1279 (11th Cir. 2020)
(quoting Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987)). “[T]he critical inquiry at
step five is whether jobs exist in the national economy in significant numbers that the
claimant could perform in spite of his impairments, and the ALJ can consider both job data
drawn from the [Dictionary of Occupational Titles (“DOT”)] as well as from the testimony
of the VE in making this determination.” Washington, 906 F.3d at 1360. “‘Whether there
are a significant number of jobs a claimant is able to perform with his limitations is a
question of fact to be determined by a judicial officer [i.e., the ALJ].’” Viverette v. Comm’r
of Soc. Sec., 13 F.4th 1309, 1318 (11th Cir. 2021) (citation omitted). See also Brooks v.
Barnhart, 133 F. App’x 669, 670 (11th Cir. 2005) (“The ALJ, relying on the VE’s
testimony, and not the VE, determines whether a specific number of jobs constitutes a
significant number.”). “The ALJ must articulate specific jobs that the claimant is able to
perform, and this finding must be supported by substantial evidence[.]” Wilson v. Barnhart,
284 F.3d 1219, 1227 (11th Cir. 2002). Most importantly, “[t]he question … is not whether
the [VE’s] testimony is supported by substantial evidence. It is whether the ALJ’s decision

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is supported by substantial evidence.” Pace v. Comm’r of Soc. Sec., 760 F. App’x 779, 781
(11th Cir. 2019) (emphasis in original).
Once the ALJ makes the required showing, the burden shifts back to the claimant to
show that he is unable to perform the jobs suggested by the ALJ. Washington, 906 F.3d at
1359. “Although the burden temporarily shifts at step five, the overall burden of
demonstrating the existence of a disability as defined by the Social Security Act
unquestionably rests with the claimant.” Id. (quoting Doughty v. Apfel, 245 F.3d 1274, 1280
(11th Cir. 2001) (internal quotations omitted)).
Here, the ALJ relied on the testimony of a VE. During the hearing, the ALJ asked
the VE whether there is any work in the national economy that a claimant with McDonald’s
RFC, age, education, and work experience could perform. (R. 75.) The VE responded with
three jobs: (1) laminator, (2) hand mounter, and (3) document preparer. (R. 76.) The VE
testified there are 66,100 jobs in the national economy for the job of laminator; 21,100
national jobs for the job of hand mounter; and 46,000 national jobs for the job of document
preparer. (R. 76.) The VE cited specific DOT codes for each job presented. (Id.)
1.

VE’s Testimony

When determining national job numbers, the VE may consult the DOT to determine
the type of job a claimant can perform. See Goode, 966 F.3d at 1281. The DOT does not
contain job number estimates, so the VE must then consult other sources, like the
Occupational Employment Quarterly, which is compiled by a private organization called
U.S. Publishing. Id. However, many of these sources use Standard Occupational
Classification (“SOC”) codes to organize their data. Id. There is not a one-to-one match
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between the DOT codes and the SOC codes. Id. Because of this, the SOC codes may
encompass multiple DOT codes. Id. Therefore, after figuring out the total number of jobs
for a given SOC code, the VE must take “an additional step to approximate how many of
those are the specific job or jobs that the claimant could perform.” Id. at 1283.
McDonald argues the VE’s job number estimates are overinflated because the VE
cited numbers from the SOC codes and failed to estimate how many of the jobs align with
the DOT codes identified. (Doc. No. 10 at 9.) The Commissioner responds that even if the
VE gave flawed testimony, McDonald, or his representative, did not alert the ALJ to the
flawed testimony either during the hearing or after the hearing concluded. (Doc. No. 15 at
8–9.) As such, the Commissioner avers, the ALJ properly relied on the uncontroverted VE
testimony and therefore his decision is supported by substantial evidence. (Id. at 8.)
In the Eleventh Circuit, courts are limited to reviewing “the evidence actually
presented to the ALJ in determining whether the ALJ’s decision is supported by substantial
evidence.” Falge v. Apfel, 150 F.3d 1320, 1323 (11th Cir. 1998). “Under the substantialevidence standard, a court looks to an existing administrative record and asks whether it
contains ‘sufficien[t] evidence’ to support the agency’s factual determinations.” Biestek v.
Berryhill, 587 U.S. 97, 103 (2019) (citation omitted) (emphasis added).
And when the Appeals Council denies review, as here, [the district court’s]
review is limited to deciding whether the ALJ’s decision was supported by
substantial evidence and may not decide the facts anew. See Winschel, 631
F.3d at 1178. Thus, [the district court] must look only to the evidence that
was presented to the ALJ, and not evidence that was subsequently presented
to the district court …. See Falge, 150 F.3d at 1323.

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Bacon v. Comm’r of Soc. Sec., 861 F. App’x 315, 320 (11th Cir. 2021). Furthermore, district
courts do not have jurisdiction over the Commissioner’s refusal to reopen a claim because
it is not a final decision within the meaning of § 405(g). Cash v. Barnhart, 327 F.3d 1252,
1256 (11th Cir. 2003); see also 20 C.F.R. § 404.903(l).
Here, McDonald contends that other evidence, which was not presented to the ALJ
or Appeals Council or included in the administrative record, shows that the VE’s testimony
overstated job estimates. During the hearing, McDonald did not present this evidence to
the ALJ, nor object to the VE’s testimony, nor even inquire into the VE’s methodology. (R.
73-77.) In fact, McDonald’s non-attorney representative stipulated to the VE’s
qualifications to testify and did not object to him testifying as the VE. (R. 73.) Nor did
McDonald submit any new evidence about incorrect job numbers to the ALJ after the
hearing, even though the ALJ extended the deadline to submit new evidence. (R. 77-78.)
Further, McDonald did not submit any evidence about incorrect job numbers to the Appeals
Council before the Council rendered its decision. 3 (R. 11, 259, 381.) Thus, the only
evidence before the ALJ and Appeals Council, i.e., the only evidence in the existing
administrative record, about job numbers was the uncontroverted testimony of the VE.
Because the VE’s testimony is the only evidence regarding the number of jobs available in
the national economy in the existing administrative record, the Court is foreclosed from

Although McDonald did eventually alert the Appeals Council to the potentially flawed job
number estimates, the new evidence was presented in a request to reopen the case after the Appeals
Council denied review. (R. 3–9.) Because the decision to deny McDonald’s request was not a final
decision within the meaning of § 405(g), this Court does not have jurisdiction over the Appeal
Council’s refusal to reopen a claim. See Cash, 327 F.3d at 1256.
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considering the other evidence presented by McDonald. See Valdez v. Comm’r of Soc. Sec.,
808 F. App’x 1005, 1010 (11th Cir. 2020) (finding the court was foreclosed from
considering the data in the occupational employment statistics on appeal and was left with
the VE’s testimony when the claimant did not present occupational employment statistics
to the ALJ or object to the VE’s testimony and stipulated that the VE was qualified to
testify); Bacon, 861 F. App’x at 320 (“Furthermore, because the VE’s testimony is the only
evidence regarding the number of jobs available in the record, this Court is foreclosed from
considering other evidence suggested by Bacon in the district court and on appeal.”) (citing
Falge, 150 F.3d at 1323).
Bearing in mind the Court must only consider the evidence in the existing
administrative record and the only evidence in the record concerning jobs existing in the
national economy is the uncontroverted VE testimony, the Court concludes the VE’s
testimony established that jobs existed in significant numbers in the national economy, and
such testimony constituted substantial evidence to support the ALJ’s fifth-step finding. See
Leigh v. Comm’r of Soc. Sec., 496 F. App’x 973, 975 (11th Cir. 2012) (finding the ALJ’s
decision, which relied on VE testimony, was supported by substantial evidence when
claimant “did not offer any evidence controverting the VE’s opinion, nor did she object to
the opinion”).
Lastly, 4 in arguing that this case should be remanded due to overstated job estimates
by the VE, McDonald implausibly relies on the Eleventh Circuit’s decision in Goode. (Doc.

In his reply brief, McDonald argues for the first time that the Supreme Court’s decision in Sims
v. Apfel, 530 U.S. 103, 112 (2000) precludes waiver of issues that are not brought administratively,
4

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No. 10 at 7-10.) In Goode, the Eleventh Circuit reversed and remanded the ALJ’s decision,
in part, because it found the VE’s testimony about available jobs lacked reliability. Goode,
966 F.3d at 1285. Specifically, the Circuit noted the VE gave overinflated job numbers that
the claimant could perform because he used the wrong SOC group code and failed to “take
an additional step to approximate how many of those are the specific job or jobs the
claimant could perform.” Id. at 1283. Particularly, in Goode, the Circuit noted “[t]his is not
a case in which the claimant failed to challenge or question the [VE’s] methodology or job
numbers” as the record showed that the claimant’s “attorney repeatedly questioned the
[VE] regarding his flawed testimony, expressing multiple times to the ALJ that he did not
find the testimony persuasive or credible ….” Id. at 1284, n.3. Unlike Goode, neither
McDonald nor his representative challenged or questioned the VE regarding his testimony
during the hearing in this case. (R. 77.) Nor did McDonald or his representative inquire of
the VE as to the methodology used to calculate the job numbers. Consequently, Goode is
factually distinguishable from this case. See Bacon, 861 F. App’x at 320 (finding the VE’s
testimony “was neither clearly and unmistakably wrong on its face, nor was it internally
inconsistent and incomplete” because “unlike Goode, this was a case in which the claimant
failed to challenge or question the VE’s methodology or job numbers.”) (citation omitted).

that the court should consider the new job number estimates because he was not represented by an
attorney during the administrative proceedings, and 20 C.F.R. § 404.1566(d) requires an ALJ take
administrative notice of publicly available data when making his fifth step determination. (Doc.
No. 16 at 4, 6-9.) However, “[a]rguments raised for the first time in a reply brief are not properly
before a reviewing court.” Riechmann v. Fla. Dep’t of Corr., 940 F.3d 559, 579 (11th Cir. 2019)
(citations omitted). Accordingly, the Court does not address these arguments.
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2.

Obsolete Job

McDonald next argues the ALJ’s decision was not supported by substantial evidence
because the job of document preparer is obsolete. (Doc. No. 10 at 12.) According to the
DOT code, a document preparer readies documents “for microfilming, using paper cutter,
photocopying machine, rubber stamps, and other work devices.” 249.587-018 Document
Preparer, Microfiliming, United States Department of Labor, Office of Administrative Law
Judges, Dictionary of Occupational Titles, https://www.dol.gov/agencies/oalj/PUBLIC
/DOT/REFERENCES/DOT02C (last accessed Sept. 17, 2024). Although McDonald cites
persuasive authority from outside this circuit to support his argument, the Eleventh Circuit
has recognized that “[a]lthough the DOT is outdated—some would say obsolete—it
remains one of the vocational expert’s primary tools.” Goode, 966 F.3d at 1281. Moreover,
declaring the job of document preparer obsolete would require the Court to “decide the
facts anew, reweigh the evidence, [and] substitute our judgment for that of the ALJ.”
Goode, 966 F.3d at 1280, which the Court cannot do.
Even if the Court had the ability to declare the job of document preparer obsolete,
it would not render the ALJ’s opinion unsupported by substantial evidence. The ALJ
determined there were 66,100 jobs in the national economy for the job of laminator and
21,100 jobs in the national economy for the job of hand mounter. (R. 36.) The Eleventh
Circuit has held that as few as 80,000 jobs nationally constituted a sufficient number of
jobs. See Allen v. Bowen, 816 F.2d 600, 602 (11th Cir. 1987). Even without the position of

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document preparer, the total number of jobs cited by the ALJ is well over 80,000. 5
Therefore, regardless of whether this Court declares the role of document preparer
obsolete, the ALJ’s fifth-step finding is supported by substantial evidence.
B.

ALJ’s RFC Determination

McDonald avers that the ALJ failed to analyze all of the relevant evidence. (Doc.
No. 10 at 13.) McDonald claims that (1) the ALJ failed to account for upper extremity
limitations due to his neck disorder that would affect his ability to reach, handle, finger, or
feel; and (2) the ALJ failed to mention his chronic pain syndrome, post-laminectomy
syndrome, sleep apnea, fatigue, or chronic carpal tunnel. (Id.)
The RFC assesses the claimant’s remaining ability to do work despite his
impairments and any related symptoms. 20 C.F.R. § 404.1545(a)(1). When assessing a
claimant’s RFC, the ALJ must consider “all impairments, severe and non-severe.” Schink
v. Comm’r of Soc. Sec., 935 F.3d 1245, 1268 (11th Cir. 2019) (citing Bowen v. Heckler, 748

Notably, the “Eleventh Circuit has ‘never held that a minimum numerical count of jobs must be
identified in order to constitute work that exists in significant numbers under the statute and
regulations.” B.S. v. Comm’r of Soc. Sec., No. 1:20-CV-77, 2021 WL 1598210 at *3 (M.D. Ga.
Apr. 23, 2021) (quoting Atha v. Comm’r of Soc. Sec., 616 F. App’x 931, 934 (11th Cir. 2015)
(internal quotation marks omitted)) (finding 23,800 jobs in national economy constituted a
“significant number”); see Valdez, 808 F. App’x at 1010 (noting that the Eleventh Circuit has held
that 78,000 jobs and other jobs with similar numbers amounted to “substantial evidence to support
the ALJ’s finding on step five”); Webster v. Comm’r of Soc. Sec., 773 F. App’x 553, 555 (11th
Cir. 2019) (“The ALJ, relying on the VE’s testimony, determines whether a specific number of
jobs constitutes a significant number.... We have upheld an ALJ’s finding that 174 small appliance
repairman positions in the area in which the claimant resided, 1,600 general appliance repair jobs
in Georgia, and 80,000 jobs nationwide established the existence of work in significant numbers.”).
The Court here is not finding that 80,000 jobs is the threshold; it is merely using that number as
an example and finding that the number of jobs identified by the VE in this case are sufficient to
constitute a significant number.
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F.2d 629, 634–35 (11th Cir. 1984)). The ALJ determines RFC “based on all of the relevant
medical and other evidence.” 20 C.F.R. § 404.1545(a)(3). 6
First, the ALJ’s opinion considered upper extremity limitations. The ALJ found that
although McDonald had a documented history of neck disorder, the treatment record
indicated that he has “normal motor strength and tone, normal sensation, and normal
movement of all extremities.” (R. 32 (emphasis added).) This conclusion is supported by
substantial evidence in the record. As the ALJ pointed out, multiple medical providers
noted normal strength, sensation, and range of motion in his upper extremities. (R. 623,
629, 635, 641, 647, 654, 660, 706, 711, 716, 720, 724, 729, 872-873, 1070-1071, 1077.)
Although the record does show that McDonald complained that using his arm caused
thoracic pain (R. 1059), McDonald cites no evidence for his contention that his neck
disorder would affect his ability to reach, handle, finger, or feel. (Doc. No. 10 at 13.)
Therefore, the ALJ properly considered McDonald’s upper extremity limitations.
Second, the ALJ sufficiently addressed McDonald’s chronic pain syndrome and
post-laminectomy syndrome. 7 Although the ALJ did not call McDonald’s conditions by
their names, he did note after McDonald underwent a transforaminal interbody fusion (a
type of back surgery), he still reported “chronic left lower extremity pain.” (R. 32.) The
ALJ discussed McDonald’s decision not to have a spinal cord stimulator implanted because
Although the ALJ does not need to discuss every piece of evidence, he must consider the
claimant’s “medical condition as a whole.” Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir.
2005); see also 20 C.F.R. § 404.1523(c) and Social Security Ruling 96-8p.
6

Post-laminectomy syndrome is when a person experiences pain after undergoing a spinal surgery.
Seth A. Waldman, MD, Post-Laminectomy Syndrome, Hospital for Special Surgery (March 7,
2024), https://www.hss.edu/conditions_post-laminectomy-syndrome.asp.
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it had provided minimal relief of his symptoms in the past. (Id.) The ALJ then recited all
of the other procedures McDonald underwent to relieve his pain, including “trigger point
injections, bilateral sacroiliac joint injections, epidural steroid injections, and thoracic
medial branch blocks.” (Id.) Nonetheless, the ALJ concluded that McDonald has the ability
to perform less than a full range of sedentary work because he has been treated with
medication and injections that showed some indication of effectiveness and had not been
recommended for additional surgical intervention. (R. 32–33.) While the ALJ may not have
called McDonald’s impairments by their medical names, the record indicates that the ALJ
fully considered McDonald’s chronic pain syndrome and post-laminectomy syndrome.
Although the ALJ did not mention McDonald’s sleep apnea, fatigue, or alleged
carpal tunnel syndrome, the burden is on McDonald to prove he is disabled. See Moore v.
Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005) (“An individual claiming Social Security
disability benefits must prove that [he] is disabled.”). A claimant cannot merely cite the
existence of impairments, but must also “reveal the extent to which [the impairments] limit
[his] ability to work.” Id. at 1213, n.6; see also 42 U.S.C. § 423(d)(1)(A) (“‘disability’
means inability to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment”); Davis v. Barnhart, 153 F. App’x 569, 572
(11th Cir. 2005) (“[d]isability is determined by the effect an impairment has on the
claimant’s ability to work, rather than the diagnosis of an impairment itself”); Wind v.
Barnhart, 133 F. App’x 684, 690 (11th Cir. 2005) (“the claimant must show the effect of
the impairment on her ability to work”).

17

While there is some evidence in the medical record that McDonald suffered from
sleep apnea and fatigue (see R. 452, 739, 743), McDonald did not mention either on his
application for benefits (R. 289) or during the hearing (R. 50–78). Though McDonald
mentioned chronic carpal tunnel in his application (R. 289), there is no medical evidence
in the record that supports such a claim. McDonald cites to an affidavit signed by a friend
and a brief filed by his representative to support his claim of carpal tunnel syndrome. (Doc.
No. 10 at 13.) 8 Neither document constitutes medical evidence. Furthermore, McDonald
does not cite any evidence in the record that explains how his sleep apnea, fatigue, or
alleged carpal tunnel syndrome would impact his ability to do work. (Doc. No. 10 at 13.)
Without evidence that these impairments impact his ability to do work, the Court cannot
say the ALJ’s RFC determination was not supported by substantial evidence.
C.

20 C.F.R. § 404.1520c

McDonald contends the ALJ failed to consider a medical opinion from Dr.
Hannahan during his RFC determination in violation of 20 C.F.R. § 404.1520(c). (Doc. No.
10 at 14.) The Commissioner avers that the medical record written by Dr. Hannahan is not
a medical opinion as defined by 20 C.F.R. § 404.1513(a)(2). (Doc. No. 15 at 12.) 9
Even if the Court were to determine that the record written by Dr. Hannahan
constituted a medical opinion, the ALJ’s failure to discuss the opinion would be harmless
McDonald does cite a mention of “ulnar nerve entrapment” in the medical record to support his
claim. (Doc. No. 10 at 14.) However, the ulnar nerve is near the elbow and its entrapment is also
known as cubital tunnel syndrome, which is distinct from carpal tunnel syndrome. (Compare
cubital tunnel syndrome, Stedmans Medical Dictionary 878760 with carpal tunnel syndrome,
Stedmans Medical Dictionary 877830.)
8

9

Neither party cites any authority, outside of the regulations, for their positions.
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error. “Remand is unwarranted unless an error creates fundamental unfairness or
prejudice.” Raper v. Comm’r of Soc. Sec., 89 F.4th 1261, 1274, n. 11 (11th Cir. 2024).
McDonald bears the burden to show that the ALJ’s failure to consider the medical record
is harmful. See Viverette, 13 F.4th at 1317–18 (“[T]he burden of showing that an error is
harmful normally falls upon the party attacking the agency’s determination”). McDonald
has not met his burden.
The record at issue advises McDonald to “[l]imit heavy lifting, repetitive
movements, sudden movements.” (R. 624.) The record continues and advises McDonald
to engage in low impact exercise such as yoga, Pilates, Tai Chi, walking, stationary biking,
and swimming. (Id.) This record from Dr. Hannahan is consistent with the ALJ’s
determination that McDonald can perform a reduced range of sedentary work, which is
defined as “lifting no more than 10 pounds at a time and occasionally lifting or carrying
articles like docket files, ledger, and small tools.” 20 C.F.R. § 404.1567(a). McDonald’s
ability to engage in yoga, Pilates, Tai Chi, walking, stationary biking, and swimming does
not contradict the ALJ’s RFC finding and McDonald has not shown how he was prejudiced
or harmed by the ALJ’s failure to discuss the record. Consequently, the Court finds no
reversible error.
D.

Pain Standard

Finally, McDonald argues the ALJ’s conclusion that his subjective complaints of
pain are not entirely consistent with the medical record is not supported by substantial
evidence. (Doc. No. 10 at 15.) The Commissioner avers that the ALJ properly evaluated

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McDonald’s alleged pain and cited substantial evidence to support his conclusion that
McDonald could perform a reduced range of sedentary work. (Doc. No. 15 at 15.)
When a claimant alleges disability due to subjective complaints of pain, the claimant
must show “(1) evidence of an underlying medical condition; and (2) either (a) objective
medical evidence confirming the severity of the alleged pain; or (b) that the objectively
determined medical condition can reasonably be expected to give rise to the claimed pain.”
Raper, 89 F.4th at 1277. If a claimant meets this standard, and the ALJ decides not to credit
a claimant’s testimony as to his pain, the ALJ “must articulate explicit and adequate reasons
for doing so.” Foote v. Chater, 67 F.3d 1553, 1561–62 (11th Cir. 1995) (per curiam). The
Eleventh Circuit has “held that credibility determinations are the province of the ALJ,
Moore v. Barnhart, 405 F.3d 1208, 1212 (11th Cir. 2005), and [the Court] will not disturb
a clearly articulated credibility finding supported by substantial evidence, Foote v. Chater,
67 F.3d 1553, 1562 (11th Cir. 1995).” Mitchell v. Comm’r, Soc. Sec. Admin., 771 F.3d 780,
782 (11th Cir. 2014). When determining whether a claimant’s statements about his pain are
credible, the ALJ considers: (1) the claimant’s daily activities; (2) the location, duration,
frequency, and intensity of pain; (3) precipitating and aggravating factors; (4) the type,
dosage, effectiveness, and side effects of any medication taken to alleviate pain; (5)
treatment, other than medication, used to relieve pain; and (6) any measures used to relieve
pain. 20 C.F.R. § 404.1529(c)(3)(i)–(vi).
Here, the ALJ’s assessment of McDonald’s pain and other symptoms is supported
by substantial evidence. The ALJ determined that “[McDonald’s] medically determinable
impairments could reasonably be expected to cause some of the alleged symptoms.” (R.
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32.) However, the ALJ found that McDonald’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.” (Id.) The ALJ referenced objective
medical evidence, hearing testimony, and McDonald’s testimony about his daily activities.
Specifically, the ALJ noted that treatment records show normal movement and strength for
all extremities (R. 623, 629, 635, 641, 647, 654, 660, 706, 711, 716, 720, 724, 729, 872873, 1070-1071, 1077); no evidence of compressive discopathy (R. 975); treatment with
medication and injection that shows some indication of effectiveness (R. 891, 894, 915,
924, 931, 933, 945, 957, 999, 1001, 1019); and no evidence of muscular atrophy (R. 32–
33). The ALJ specifically highlighted that no treating physician recommended additional
surgical intervention or opined that McDonald had disabling limitations or was unable to
work. (R. 33.) Further, the ALJ referenced McDonald’s function report where McDonald
reported that he was able to prepare his own meals and drive. (R. 33, 324–325.) Finally,
the ALJ discussed why he found McDonald able to perform a reduced range of sedentary
work when two State agency consultants found he could do reduced range of light work.
(R. 34.)
The Court is unpersuaded by McDonald’s argument. McDonald cites his subjective
complaints of pain, his diagnosis of chronic pain syndrome, and post-laminectomy
syndrome as evidence that the ALJ’s credibility finding is not supported by substantial
evidence. (Doc. No. 10 at 15.) Nonetheless, “[u]nder a substantial evidence standard of
review, [the claimant] must do more than point to evidence in the record that supports [his]
position; [he] must show the absence of substantial evidence supporting the ALJ’s
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conclusion.” Sims v. Comm’r of Soc. Sec., 706 F. App’x 595, 604 (11th Cir. 2017).
McDonald has failed to satisfy his burden. Here, the ALJ properly evaluated McDonald’s
subjective complaints in light of the evidence of record, and the ALJ sufficiently cited
evidence in the record for finding that McDonald’s statements were not entirely consistent
with the record as a whole. McDonald has not shown the absence of substantial evidence
supporting the ALJ’s conclusion. See Werner v. Comm’r of Soc. Sec., 421 F. App’x 935,
939 (11th Cir. 2011) (explaining that the appropriate question for a reviewing court “is not
... whether [the] ALJ could have reasonably credited [the claimant’s] testimony, but
whether the ALJ was clearly wrong to discredit it.”). McDonald’s mere “disagreement with
the interpretation of the evidence” by the ALJ “does not warrant a remand of [his] case.”
Sarria v. Comm’r of Soc. Sec., 579 F. App’x 722, 724 (11th Cir. 2014). Accordingly, the
Court finds no reversible error.
VI.

CONCLUSION

For the reasons stated, the Court finds the decision of the Commissioner is supported
by substantial evidence and is in accordance with applicable law. Therefore, it is
ORDERED as follows:
1.

McDonald’s motion for summary judgment (Doc. No. 10) 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 26th day of September, 2024.
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JERUSHA T. ADAMS
UNITED STATES MAGISTRATE JUDGE

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