Wheatley v. Social Security Administration, Commissioner

Filing 21

MEMORANDUM DECISION. Signed by Judge R David Proctor on 08/30/2024. (CLD)

FILED
2024 Aug-30 PM 03:02
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION

SELINA RENEE WHEATLEY,
Plaintiff,
v.
MARTIN O’MALLEY,
COMMISSIONER, SOCIAL SECURITY
ADMINISTRATION,
Defendant.

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Case No.: 5:23-cv-475-RDP

MEMORANDUM OF DECISION
Plaintiff Selina Renee Wheatley brings this action pursuant to Section 205(g) of the Social
Security Act (the “Act”), seeking review of the decision of the Commissioner of Social Security
(“Commissioner”) denying her claims for a period of disability and disability insurance benefits
(“DIB”). See also 42 U.S.C. § 405(g). Based on the court’s review of the record and the briefs
submitted by the parties, the court finds that the decision of the Commissioner is due to be
affirmed.
I.

Proceedings Below
Plaintiff filed her application for a period of disability and DIB on July 5, 2019 (Tr. 120),

alleging a disability onset date of November 25, 2018. (Tr. 104). The application was denied
initially on May 22, 2020, and upon reconsideration on September 25, 2020. (Tr. 120, 140). After
a hearing held in May 2021 (Tr. 69-102), Administrative Law Judge Shannon H. Heath (“ALJ”)
issued a decision on June 3, 2021, finding Plaintiff was not disabled. (Tr. 144-154). On February
25, 2022, the Appeals Council remanded the case to the ALJ for further proceedings. (162-64).

The ALJ held a second hearing in September 2022. (Tr. 46-68). In her second decision, dated
September 26, 2022, the ALJ determined that Plaintiff had not been disabled within the meanings
of §§ 216(i) and 223(d) since November 25, 2018. (Tr. 10-20). After the Appeals Council denied
Plaintiff’s request for review of the ALJ’s second decision on February 7, 2023 (Tr. 1), that
decision became the final determination of the Commissioner, and therefore a proper subject of
this court’s appellate review.
At the time of the September 2022 hearing, Plaintiff testified that she was fifty-four years
old and had an associate’s degree. (Tr. 51, 75). Plaintiff previously worked as a medical office
receptionist, an insurance clerk, a charting clerk, an administrative support assistant, and an
administrative clerk. (Tr. 82-83). Plaintiff alleges that she suffers from diabetes, obstructive sleep
apnea, bulging and herniated discs, chronic renal insufficiency, abdominal wall hernias, a history
of pulmonary embolism and deep vein thrombosis, early Barrett’s Syndrome, sciatica, and chronic
headaches. (Tr. 121). According to Plaintiff, she has been unable to work since November 2018.
(Tr. 75).
Plaintiff has had three hernia repairs, which cause ongoing abdominal pain and limit her
from lifting objects heavier than ten pounds. (Tr. 55, 85). She complains of back pain extending
into her legs causing her to have difficulty sitting, standing, and walking. (Tr. 58, 85-86). She
suffers from osteoarthritis in her knees that makes it difficult for her to squat, climb stairs, stand,
and walk. (Tr. 87-88). Plaintiff has diabetes and suffers from daily blood sugar swings. (Tr. 89).
She complains of pain in her hands due to fibromyalgia and prior surgeries and reports this pain
causes her difficulty gripping or manipulating objects for more than 15-20 minutes. (Tr. 90-91).
According to Plaintiff, her fibromyalgia also causes joint pain, as well as concentration and
memory issues. (Tr. 54, 95-96). Additionally, Plaintiff alleges that her diabetes and sleep apnea

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cause her severe fatigue, and that she suffers from migraines that are unpredictable in length. (Tr.
91-93).
In February 2014, Plaintiff reported to Dr. Philip Maddox with a metacarpal fracture in one
of her left fingers. (Tr. 611). Dr. Maddox placed three screws in Plaintiff’s finger. (Tr. 611). A few
months later, Plaintiff reported back to Dr. Maddox with a different fracture through one of her
drill holes and screws. (Tr. 609). Dr. Maddox inserted a dorsal plate in Plaintiff’s finger; at
subsequent appointments he noted that Plaintiff was healing well. (Tr. 597, 601, 603, 605).
In June 2017, after a CT scan of Plaintiff’s abdomen showed multiple hernias and a large
mass, Plaintiff underwent her first hernia repair, which was performed by Dr. Paul Noel. (Tr.
1607). At a follow-up appointment, Plaintiff stated that she was doing well, that her soreness was
improving. (Tr. 1465). Although she complained of right lower leg pain, denied any swelling,
fever, or redness to the leg. (Id.). A doppler ultrasound of Plaintiff’s right leg revealed deep venous
thrombosis within the right posterior tibial vein. (Tr. 1521). Dr. Noel recorded that Plaintiff’s
cranial nerves, motor and sensory function, reflexes, gait, and coordination were all intact. (Tr.
1466). Since then, Plaintiff has had two additional hernia surgeries done by Dr. Noel. (Tr. 1044,
1058-59, 1345). After each surgery, Dr. Noel noted that Plaintiff was nontender and nondistended,
and that her cranial nerves, motor and sensory function, reflexes, gait, and coordination were all
intact. (Tr. 1046, 1690, 1697). After the most recent surgery, Plaintiff stated that she was able “to
perform all instrumental activities of daily living independently.” (Tr. 1114).
In February 2018, Plaintiff began going to physical therapy for pain in her left shoulder.
(Tr. 816). Physical Therapist Tyler Hudgins recorded that Plaintiff exhibited limitations in her left
shoulder range of motion and that affected her strength and stability. (Tr. 818). At subsequent
physical therapy sessions, Plaintiff showed good progress. (Tr. 791-809). After ten sessions,

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Plaintiff had improved cervical and left shoulder range of motion. (Tr. 788). However, Plaintiff
continued to report pain when lifting her arms to her sides and, in March 2018, reported feeling a
pop in her left shoulder that caused pain and limited her range of motion. (Tr. 775, 780).
In August 2018, Plaintiff underwent an arthroscopic surgery with Dr. Joseph Patrick Boyett
to repair a partial rotator cuff tear in her left shoulder. (Tr. 665, 668). Upon discharge, Plaintiff
was able to sit and rise from a chair normally, stand still momentarily, and walk a short distance.
(Tr. 1257). Physical therapy records after the surgery showed she improved at each session. (Tr.
752-73). In October 2018, Plaintiff was noted to be “doing better” and “making good progress,”
although she told Dr. Boyett that she did not think she was ready to return to work. (Tr. 661-62).
In November 2018, Plaintiff had good rotator cuff strength, could abduct her shoulder to 130
degrees, and flex her shoulder to 160 degrees; therefore, Dr. Boyett released her to return to full
activity. (Tr. 658).
In November 2018, Plaintiff reported to Dr. Christopher E. Edwards with abdominal pain.
(Tr. 1226). A CT scan of Plaintiff’s abdomen revealed a fat stranding adjacent to the tail and distal
body of the pancreas. (Tr. 1227). Dr. Eduardo Bazan-Lavanda diagnosed Plaintiff with druginduced pancreatis but noted that her symptoms were improving. (Tr. 1251). In addition, Dr.
Bazan-Lavanda conducted a sleep study on Plaintiff and diagnosed her with severe obstructive
sleep apnea and restless leg syndrome but noted that she showed no symptoms of Periodic Limb
Movement Disorder. (Tr. 1639). During a second sleep study, in March 2019, Plaintiff reported
that her CPAP machine had improved her fatigue and sleepiness, but that she still felt drowsy
during the day. (Tr. 1658). However, in May 2019, Plaintiff noted improvement in her fatigue and
sleepiness since she was placed on BiPAP therapy. (Tr. 1665).

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In March 2019, Plaintiff reported to Athens Limestone Hospital with complaints of knee
pain. (Tr. 1181). An x-ray of Plaintiff’s left knee showed no fracture or dislocation, no significant
abnormalities in Plaintiff’s soft tissue, and maintained joint spaces, but osteoarthritis without acute
osseus abnormality. (Tr. 1181).
In May 2019, Plaintiff reported to Dr. Bobby N. Johnson related to her diabetes. (Tr. 182224). Dr. Johnson noted that Plaintiff had normal range of motion and strength, as well 5/5 strength
throughout her motor and neurological exam. (Tr. 1824). Dr. Johnson advised Plaintiff to stick to
a low-calorie meal plan and starting an exercise program. (Tr. 1824). At a follow-up in September
2019, Plaintiff denied any new problems and stated that she felt well, although she admitted that
she “has not had good control” with diet and exercise. (Tr. 1819). In December 2019, Dr. Johnson
noted that Plaintiff had not been compliant with her health regiment and had gained weight. (Tr.
1816). But, in September 2020, Plaintiff’s weight had declined, and she reported feeling well. (Tr.
1916). In April 2021, Dr. Johnson recorded that Plaintiff had normal range of motion and strength,
and a normal nonfocal exam. (Tr. 1914-15).
In October 2019, Plaintiff reported to the emergency room with chest pain. (Tr. 1149). Dr.
Jon D. Turner conducted a cardiovascular evaluation of Plaintiff, and an echocardiogram showed
she had a structurally normal heart and normal systolic pressure. (Tr. 1040-41). Plaintiff passed a
graded exercise test without any chest discomfort. (Tr. 1041). Dr. Turner opined that Plaintiff’s
chest pain was gastroesophageal in origin and attributed it to her diabetes and obesity. (Tr. 104142). An MRI of Plaintiff’s lumbar spine showed normal alignment and no significant
abnormalities, but also revealed a few bulging and herniated discs. (Tr. 1163).
In February 2020, Plaintiff again reported to Dr. Turner with complaints of chest pain and
high blood pressure. (Tr. 861). Plaintiff had normal range of motion, no limitations on mobility,

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and denied any numbness, weakness, confusion, memory problems, or muscle aches/weakness.
(Tr. 866). That same month, Plaintiff returned to Dr. Johnson for a checkup and reported having
no new problems with her glucose. (Tr. 1813). Dr. Johnson recorded that Plaintiff presented as
alert and oriented, and normal in mood and affect with fluent speech. (Tr. 1811).
In May 2020, Dr. Robert Estock conducted a psychiatric consultative examination of
Plaintiff and opined that her file did not suggest any noted symptoms or functional limitations of
an ongoing mental impairment. (Tr. 113). Dr. Estock opined that Plaintiff’s history of anxiety was
non-severe and did not affect her functioning. (Tr. 113).
In September 2020, Plaintiff underwent a psychological examination with Dr. Erin M.
Smith. (Tr. 1829-32). Plaintiff reported performing daily activities around the house, such as
cooking meals for her family, doing light chores and laundry, driving, running errands, and paying
bills. (Tr. 1830). Dr. Smith noted that Plaintiff’s gait and fine motor skills were unimpaired, that
her thought content and processes were within normal limits, that her attention and concentration
were fair, and that her recent and remote memory were intact. (Tr. 1831). Plaintiff could repeat six
digits forward, four digits backward, four digits in sequence, and perform simple arithmetic
calculations. (Tr. 1831). Dr. Smith opined that Plaintiff’s overall level of social functioning and
her ability to maintain gainful full-time employment were only moderately impaired by her
ailments, and her ability to manage funds is adequate. (Tr. 1831-32).
In September 2020, Dr. E. Russell March, Jr. conducted a consultative examination of
Plaintiff. (Tr. 138). Although Dr. March opined that Plaintiff’s medically determinable
impairments could reasonably be expected to cause some of her alleged symptoms, he believed
Plaintiff’s statements concerning the intensity, persistence, and limiting effects of her symptoms

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were not consistent with all of her reported ailments. (Tr. 133). Dr. March concluded that Plaintiff
was not disabled and could perform light work. (Tr. 138).
Plaintiff also reported to Dr. John H. Lary, Jr. for a physical examination in September
2020. (Tr. 1834-39). An x-ray of Plaintiff’s lumbar spine showed mild to moderate degenerative
facet arthritis. (Tr. 1835). Plaintiff’s back musculature appeared normal, although Plaintiff
exhibited typical behavior for a patient with back pain. (Tr. 1837). Plaintiff did not have any
enlarged, swollen, red, or tender joints; she could walk normally, although she was unable to walk
on her toes or assume a kneeling/squatting position; and she had normal 5/5 muscle strength. (Tr.
1838-39). Dr. Lary opined that Plaintiff was somewhat impaired in her ability to sit, stand, walk,
lift, carry, bend, squat, and kneel; that Plaintiff’s ability to reach her non-dominant left arm was
somewhat restricted by her range of motion; and that her ability to see, hear, speak, understand,
and manipulate objects was unimpaired. (Tr. 1839).
In November 2020, Nurse Practitioner Lisa Weaver -- Plaintiff’s personal care provider
since 1997 -- opined that Plaintiff is unable to obtain or maintain gainful employment, would be
off task for at least one hour in a typical workday, and would miss at least 25-30 days a year. (Tr.
1851, 1855). Further, Weaver opined that Plaintiff could only sit for three hours and stand or walk
for two hours in an eight-hour workday. (Tr. 1858). But, Weaver’s examination notes show that
Plaintiff had normal gait and station, as well as intact recent and remote memory. (Tr. 1924, 2142).
In December 2020, Tsianinia Pruitt, one of Plaintiff’s physical therapist’s assistants from
2016-18, opined that Plaintiff’s inability to tolerate pain medication, her core muscle weakness,
and her weight gain each contribute to constant hip and back pain that make everyday chores and
exercises difficult to perform. (Tr. 1853).

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Plaintiff began seeing chiropractor Dr. J. Rodney Bailey in 2009. (Tr. 1021). In 2020, Dr.
Bailey recorded that Plaintiff’s symptoms were worsening almost each visit. (Tr. 1872-86).
However, Dr. Bailey also recorded that Plaintiff had normal gait, normal posture, and that her
muscle strength and her neurological DTR were without limitations. (Tr. 1887). In January 2021,
Dr. Bailey opined that Plaintiff can occasionally bend, climb, and reach above her shoulder, but
never squat or crawl. (Tr. 1871).
In March 2021, Dr. William J. Shergy examined Plaintiff and noted that her back was
without spasm, that she was neurologically intact with good strength and sensation, and that her
joints moved well without any synovitis. (Tr. 1900). Dr. Shergy opined that Plaintiff had
fibromyalgia and needed to treat her sleep apnea if she wanted to see any improvement in her
symptoms. (Tr. 1900). In April 2021, Dr. Shergy conducted another physical exam with the same
results. (Tr. 2133).
In August 2021, Plaintiff complained of lower back pain and was referred to Dr. Boyett for
bilateral L5-S1 TF injections. (Tr. 1970-71). Although Plaintiff reported mild relief from the
injections, she continued to complain of pain. (Tr. 1949). An MRI of Plaintiff’s spine showed
lower lumbar degenerative changes in L5-S1. (Tr. 2052). Dr. Boyett noted that Plaintiff’s cranial
nerves were grossly intact, that her gait was stable and balanced, and that she was able to walk
heel to toe without difficulty. (Tr. 1951). Dr. Boyett recommended Plaintiff have back surgery.
(Tr. 1952).
In September 2021, Dr. Noel noted that Plaintiff’s cranial nerves, motor and sensory
function, reflexes, gait, and coordination were all intact. (Tr. 1942). A CT scan of her abdomen
showed no evidence of a recurrent ventral hernia. (Tr. 1943, 1947). But, in December 2021,
Plaintiff fractured three ribs while hugging her spouse. (Tr. 2046-47, 2091).

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In May 2022, Dr. Shergy noted that Plaintiff had not reported in over a year. (Tr. 2148).
Although Plaintiff stated that she did not feel like her current medication was working, Dr. Shergy
observed that Plaintiff’s back was without spasm; that her extremities showed no cyanosis,
clubbing or edema; that she had good strength, sensation, and reflexes; and that her joints all moved
without any synovitis; but that her Vitamin D levels were low. (Tr. 2148, 2154).
In July 2022, Plaintiff complained of pain in her lower back; Dr. Boyett again
recommended surgery. (Tr. 2185, 2188). Dr. Boyett noted that Plaintiff’s cranial nerves were
intact; that she was stable, balanced, and could walk heel to toe without difficulty; and that she had
5/5 strength and flexion. (Tr. 2187). An ultrasound of Plaintiff’s right lower extremity did not
reveal any evidence of deep venous thrombosis. (Tr. 2202). In August 2022, Dr. Boyett performed
a L5-S1 TLIF with 360-degree fusion on Plaintiff. (Tr. 2266). At her six-week follow-up, Plaintiff
was doing well and only reported 4/10 pain. (Tr. 38). Dr. Boyett instructed Plaintiff to discontinue
using her brace, stop any restrictions, and return to bending, lifting, and twisting as tolerated. (Tr.
39).
In October 2022, Plaintiff saw Nurse Practitioner Jennifer Smith for fibromyalgia. (Tr. 4142). Smith recorded that Plaintiff was tearful because she was denied disability benefits, and
opined that Plaintiff had limited range of motion, was unable to walk long distances, and was
unable to do household chores. (Tr. 42).
At the September 12, 2022 hearing, the ALJ asked a vocational expert (“VE”) to consider
an individual with the same age, education level, and prior work history as Plaintiff with the
following limitations: the hypothetical individual can perform no more than light exertion; only
occasionally push and pull with the bilateral lower extremities; never climb ladders, ropes, or
scaffolds but occasionally may climb ramps or stairs, balance, stoop, kneel, crouch, or crawl;

9

occasionally may reach in all directions with the upper left extremity; and must avoid concentrated
exposure to temperature extremes, unprotected heights, and moving machinery. (Tr. 64). The VE
testified that such a hypothetical individual would be able to perform all of Plaintiff’s past work,
although the positions would be available in lower occurrence rates due to the limitation of
occasionally reaching with the left upper extremity. (Tr. 64-65).
The ALJ then asked the VE if the same jobs would be available for a hypothetical
individual with the same limitations who could not lift more than ten pounds. (Tr. 65). The VE
testified that all of the sedentary positions that Plaintiff had previously worked would be available
for such a hypothetical individual, although again in reduced numbers. (Tr. 65).
Next, the ALJ asked the VE to consider a hypothetical individual with the same limitations
in the previous hypotheticals, but who would also need to alternate between sitting and standing
every fifteen minutes while remaining on task. (Tr. 65). The VE testified that such a hypothetical
individual would be precluded from all employment. (Tr. 65-66).
Finally, the ALJ asked the VE to consider a hypothetical individual with the same
limitations as the first two hypothetical individuals but who would be expected to be absent at least
one day every two weeks. (Tr. 66). The VE testified that such an individual, too, would be
precluded from all employment. (Tr. 66).
II.

ALJ Decision
Disability under the Act is determined under a five-step test. 20 C.F.R. § 404.1520. First,

the ALJ must determine whether the claimant is engaging in substantial gainful activity. Id. §
404.1520(a)(4)(i). “Substantial gainful activity” is defined as activity that is both “substantial” and
“gainful.” Id. § 1572. “Substantial” work activity is work that involves doing significant physical
or mental activities. Id. § 404.1572(a). “Gainful” work activity is work that is done for pay or

10

profit. Id. § 404.1572(b). If the ALJ finds that the claimant engages in activity that meets both of
these criteria, then the claimant cannot claim disability. Id. § 404.1520(b). Second, the ALJ must
determine whether the claimant has a medically determinable impairment or a combination of
medical impairments that significantly limits the claimant’s ability to perform basic work
activities. Id. § 404.1520(a)(4)(ii). Absent such impairment, the claimant may not claim disability.
Id. Third, the ALJ must determine whether the claimant’s impairment meets or medically equals
the criteria of an impairment listed in 20 C.F.R. § 404, Subpart P, Appendix 1. See id. §§
404.1520(d), 404.1525, and 404.1526. If such criteria are met, the claimant is declared disabled.
Id. § 404.1520(a)(4)(iii).
If the claimant does not fulfill the requirements necessary to be declared disabled under the
third step, the ALJ may still find disability under the next two steps of the analysis. The ALJ must
first determine the claimant’s residual functional capacity (“RFC”), which refers to the claimant’s
ability to work despite her impairments. 20 C.F.R. § 404.1520(e). In the fourth step, the ALJ
determines whether the claimant has the RFC to perform past relevant work.

Id. §

404.1520(a)(4)(iv). If the claimant is determined to be capable of performing past relevant work,
then the claimant is deemed not disabled. Id. If the ALJ finds the claimant unable to perform past
relevant work, then the analysis proceeds to the fifth and final step. Id. § 404.1520(a)(4)(v). In
the last part of the analysis, the ALJ must determine whether the claimant is able to perform any
other work commensurate with her RFC, age, education, and work experience. Id. § 404.1520(g).
Here, the burden of proof shifts from the claimant to the ALJ to prove the existence, in significant
numbers, of jobs in the national economy that the claimant can do given her RFC, age, education,
and work experience. Id. §§ 404.1520(g), 404.1560(c).

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The ALJ found that Plaintiff had not engaged in substantial gainful activity since
November 25, 2018, and that she met the insured status requirements of the Act through December
31, 2023. (Tr. 13). Based upon the medical evidence presented, the ALJ concluded that Plaintiff
has the followings severe impairments: abdominal hernias; lumbar degenerative disc disease;
obesity; osteoarthritis; fibromyalgia; and diabetes mellitus. (Tr. 13). Nevertheless, the ALJ
determined that Plaintiff 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. Part 404, Subpart P,
Appendix 1. (Tr. 15).
Next, the ALJ evaluated Plaintiff’s testimony and found that Plaintiff’s descriptions of the
intensity, persistence, and limiting effects of her symptoms were inconsistent with the medical
evidence and other evidence in the record. (Tr. 16). After consideration of the entire record, the
ALJ determined that Plaintiff has the RFC to perform light work as defined in 20 C.F.R. §
404.1567(b) with the following limitations: she can occasionally push/pull with the bilateral lower
extremities; she can never climb ladders, ropes or scaffolds; occasionally climb ramps/stairs,
balance, stoop, kneel, crouch, and crawl; she can occasionally reach in all directions with the left
upper extremity; and she must avoid concentrated exposure to extreme temperatures, unprotected
heights, and moving machinery. (Tr. 15).
Based on this RFC, the ALJ concluded that Plaintiff is capable of performing her past
relevant work. (Tr. 19). Therefore, the ALJ ruled that Plaintiff had not been under a disability, as
defined in the Act, since November 25, 2018, and she is not entitled to a period of disability or
DIB.

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III.

Plaintiff’s Argument for Remand
Plaintiff presents two arguments for remand. First, Plaintiff argues that the ALJ did not

properly evaluate some of the medical opinions. Second, Plaintiff argues that the ALJ’s decision
is not supported by substantial evidence. Neither argument has merit.
IV.

Standard of Review
The only issues before this court are whether the record reveals substantial evidence to

sustain the ALJ’s decision, see 42 U.S.C. § 405(g); Walden v. Schweiker, 672 F.2d 835, 838 (11th
Cir. 1982), and whether the correct legal standards were applied. See Lamb v. Bowen, 847 F.2d
698, 701 (11th Cir. 1988); Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). Title 42 U.S.C.
§ 405(g) mandates that the Commissioner’s findings are conclusive if supported by “substantial
evidence.” Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990). The district court may not
reconsider the facts, reevaluate the evidence, or substitute its judgment for that of the
Commissioner; instead, it must review the final decision as a whole and determine if the decision
is reasonable and supported by substantial evidence. See id. (citing Bloodsworth v. Heckler, 703
F.2d 1233, 1239 (11th Cir. 1983)).
Substantial evidence falls somewhere between a scintilla and a preponderance of evidence;
“[i]t is such relevant evidence as a reasonable person would accept as adequate to support a
conclusion.” Martin, 894 F.2d at 1529 (quoting Bloodsworth, 703 F.2d at 1239) (other citations
omitted). If supported by substantial evidence, the Commissioner’s factual findings must be
affirmed even if the evidence preponderates against the Commissioner’s findings. See Martin, 894
F.2d at 1529. While the court acknowledges that judicial review of the ALJ’s findings is limited
in scope, the court also notes that review “does not yield automatic affirmance.” Lamb, 847 F.2d
at 701.

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V.

Discussion
After careful review, the court concludes that the ALJ’s decision is supported by substantial

evidence and that she applied the law correctly.
A.

The ALJ properly evaluated the medical opinions

The regulatory framework for reviewing medical evidence has changed for claims filed
after March 17, 2017. See 20 C.F.R. § 404.1520c. Because Plaintiff filed her application on July
5, 2019, the new regulations apply to her. Id.; see Glover v. Comm’r, Soc. Sec. Admin., 2022 WL
17826364, at *3 (11th Cir. 2022). Under the new regulations, an ALJ “will not defer or give any
specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior
administrative finding(s), including those from [Plaintiff’s] medical sources. Id. at § 404.1520c(a).
Rather, an ALJ must evaluate each medical opinion using five factors: (1) supportability; (2)
consistency; (3) relationship with the claimant; (4) specialization; and (5) other factors. Id. at §
404.1520c(c). Further, an ALJ must state in the written decision the extent to which it is determined
that the medical opinions and the prior administrative medical findings in the record are persuasive.
Id. at § 404.1520c(b).
Because supportability and consistency are the most important factors, an ALJ is required
to explain how these two factors were considered in determining a medical source’s
persuasiveness. Id. at § 404.1520c(b)(2). However, the ALJ need not address supportability and
consistency through separate analyses so long as the substance of both factors is assessed. 20
C.F.R. § 404.1520c(b)(2); see also Thaxton v. Kijakazi, 2022 WL 983156, at *8 (M.D. Ala. 2022)
(“[T]he ALJ need not use any magic words in discussing whether a medical opinion is supported
by evidence from the medical source himself and whether the opinion is consistent with over
evidence of record.”). The ALJ may consider multiple medical opinions from the same source

14

together using the above factors, and the ALJ is not required to articulate how each opinion or
finding was considered. 20 C.F.R. § 404.1520c(a).
Plaintiff asserts that the ALJ either did not properly evaluate or failed to articulate the
reasons for discrediting eight medical opinions. The court examines each opinion, in turn, below.
1.

The Weaver Opinion

The ALJ analyzed the multiple opinions from Nurse Practitioner Lisa Weaver and
concluded as follows:
Exhibit 23F is a medical opinion form, it is assumed completed by Ms. Lisa
Weaver, APN…She opined [Plaintiff] could sit three hours, stand two hours, and
walk two hours. This opinion is not persuasive because it is not a completed
functional assessment. Rather, it only fills out the section on sit, stand, walk without
any of the other exertional or nonexertional limitation questions/sections being
completed. Further, it is not consistent with the objective records from this provider
or other providers during the period in question, including reports of [Plaintiff]
taking care of family members. The only positive exam findings from this provider
were vague and included “spinal tenderness and pain” in the lumbar region.
Treatment notes from other providers, however, were within normal limits
including normal gait, strength and sensation and full range of motion. It is also
inconsistent with Ms. Weaver’s repeated recommendation of regular exercise
including four times a week or more of walking or other light activity. (See e.g.,
Exhibit 39F). Lastly, Ms. Weaver did not provide any support for her opinion.
Exhibits 21F is a statement from Lisa Weaver … indicating [Plaintiff] would be
expected to miss 25-30 days of work per year and would be distracted from job
tasks one or more hours in a workday. This opinion is not consistent with the
objective medical records of this provider or other providers and presumably is
based on the subjective reports of [Plaintiff]. It is not fully consistent with the
admitted daily activities of [Plaintiff] including caring for family members and Ms.
Weaver does not provide any support for her opinion. As such, it is not persuasive.
Exhibit 22F is a pain statement from Lisa Weaver, APN. Pain is, as the form states,
“highly subjective” and necessarily has to be based on the subjective reports of
[Plaintiff] with respect to pain. Further, it is not consistent with the objective
treatment records of this provider or other providers and is not fully consistent with
[Plaintiff’s] admitted activities including caring for family members and there is no
evidence that [Plaintiff] experiences debilitating pain. She testified she takes very
little pain medication and she does not go to a pain clinic. Further, there are
significant gaps in treatment. Lastly, it does not offer a functional assessment of

15

[Plaintiff’s] limitations and provides no support for the opinion. As such, it is not
persuasive. …
Exhibit 19F is a narrative treating source statement [from] Ms. Weaver. This
opinion is not persuasive because it is not a functional assessment of limitations
and proffers an opinion on [Plaintiff’s] ability to work that is reserved for the
commissioner.
(Tr. 18-19). Plaintiff argues that the ALJ’s analysis of Weaver’s opinion was erroneous for a host
of reasons. But, substantial evidence supports the ALJ’s conclusion that Weaver’s opinions are not
persuasive.
Although Weaver opined that Plaintiff could only sit for three hours and stand/walk for
two hours in an eight-hour workday (Tr. 1858), Weaver’s own examination notes conflict with
these limitations. Weaver repeatedly recorded that Plaintiff had normal gait and station, and she
even encouraged Plaintiff to exercise four times or more a week. (Tr. 1924, 2086, 2096-97, 2142).
Numerous other physicians agreed and opined that Plaintiff had full range of motion and normal
gait and station. (Tr. 866, 1046, 1824, 1887, 1914, 2133, 2187). And, both Dr. March and Dr.
Hogan opined that Plaintiff could perform light work. (Tr. 118, 138). See 20 C.F.R. §
404.1520c(c)(2) (explaining that a medical opinion is more persuasive the more consistent it is
with the evidence from other sources); see also Revisions to Rules Regarding the Evaluation of
Medical Evidence, 82 FR 5844-01 (Jan. 18, 2017) (“A medical opinion without supporting
evidence, or one that is inconsistent with evidence from other sources, will not be persuasive
regardless of who made the medical opinion.”).
Similarly, Weaver’s medical opinion is at odds with Plaintiff’s own testimony. Although
Weaver opined that Plaintiff’s pain would be distracting to adequate performance of daily activities
or work (Tr. 1856), Plaintiff herself admitted that she prepares meals for her family, takes care of
light cleaning around the house, shops for groceries, and helps care for the family’s pets. (Tr. 487-

16

89). She enjoys watching TV, baking and cooking, reading, shopping, and helping her husband
around the house and yard. (Tr. 490). She admitted that she does not take a lot of pain medication.
(Tr. 62). And, throughout physical therapy, Plaintiff repeatedly stated that she did not think her
pain would bother her when she returned to work. (Tr. 672-700). This record evidence supports
the ALJ’s finding that Weaver’s opinions were inconsistent with the overall record. See Matos v.
Comm’r of Soc. Sec., 2022 WL 97144, at *4 (11th Cir. 2022) (holding substantial evidence
supported the ALJ’s finding that an opinion was inconsistent and not persuasive in part because it
conflicted with the plaintiff’s testimony of her daily activities).
Finally, Weaver opined that Plaintiff is unable to obtain or maintain gainful employment,
would be off task for at least one hour in a typical workday, and would miss in excess of 25-30
days a year. (Tr. 1851, 1855). But, “[a] medical source’s opinion that a [plaintiff] is ‘disabled’ or
‘unable to work’ is not dispositive of a disability claim because the determination is reserved to
the [ALJ] acting on behalf of the Commissioner.” Walker v. Comm’r, 987 F.3d 1333, 1339 (11th
Cir. 2021); 20 C.F.R. § 404.1527(d)(1). Therefore, the ALJ was not required to take this statement
into account and did not err by declining to do so.
The ALJ considered each of Weaver’s opinions and articulated adequately the reasons for
finding them unpersuasive. Because the ALJ’s finding are supported by substantial evidence, the
ALJ did not err in assessing Weaver’s opinions.
2.

The Lary and Smith Opinions

Dr. Erin Smith conducted a psychological evaluation of Plaintiff in September 2020 and
opined as follows:
[Plaintiff’s] overall level of social and adaptive functioning, based upon cognitive
or mental health issues, appears to be moderately impaired. She has been able to
function at an age-appropriate level in the past. Her ability to maintain gainful full-

17

time employment, based upon cognitive or mental health issues, is moderately
impaired. Her ability to manage any funds she may receive is adequate.
(Tr. 1831). Likewise, Dr. John Lary conducted a physical evaluation of Plaintiff that same month
and opined the following:
In my opinion, [Plaintiff’s] ability to sit, stand, walk, life, carry, bend, squat, and
kneel is somewhat impaired by chronic back and knee pain compounded by obesity.
Her ability to reach using non-dominant left arm is impaired somewhat by restricted
range of motion. Her ability to see (may need glasses), hear, speak, understand, and
manipulate small objects is unimpaired.
(Tr. 1839). The ALJ analyzed Dr. Smith and Dr. Lary’s examination findings in her opinion:
Erin Smith, Psy.D. opined [Plaintiff’s] “ability to maintain gainful employment,
based on cognitive or mental health issues, is moderately impaired.” (Exhibit 17F).
This opinion is not persuasive, as it does not proffer functional mental assessments
in that “moderately” is not a functionally appropriate term per the regulations. …
Dr. Lary opined [Plaintiff’s] ability to sit, stand, walk, lift, carry, bend, squat and
kneel is somewhat impaired by chronic back and knee pain compounded by her
obesity. (Exhibit 18F). This opinion is not persuasive because it is not a specific
functional assessment of limitations. “Somewhat impaired” is not a specific enough
or vocationally appropriate term/assessment of limitations under the regulations.
(Tr. 14, 19). Plaintiff argues that the ALJ erred by not engaging in any assessment of the
consistency or supportability of either Dr. Smith or Dr. Lary’s opinions. In response, the
Commissioner contends that the ALJ did not have to evaluate the supportability or consistency of
either statement because neither of them qualified as a medical opinion. The court agrees with the
Commissioner.
A “medical opinion” is a “statement from a medical source about what [a plaintiff] can still
do despite [her] impairment(s) and whether [she has] one or more impairment-related limitations
or restrictions” in performing the physical and mental demands of work activities, the other
demands of work, and the ability to adapt to environmental conditions. 20 C.F.R. §
404.1513(a)(2)(i)-(iv). Accordingly, a medical assessment that diagnoses and observes a patient,

18

but does not opine on what the patient can do, is not a “medical opinion.” See Tina W. v. Comm’r
of Soc. Sec., 2021 WL 1523906, at *4 (N.D. Tex. 2021) (citing Winston v. Berryhill, 755 F. App’x
395, 402 (11th Cir. 2018) (concluding that “a ‘medical opinion’ requires both an evaluation of
symptoms and an expression of judgment regarding a claimant’s capabilities and restrictions”)
(emphasis added)). Although Dr. Smith and Dr. Lary both focused on Plaintiff’s limitations,
neither opined on her abilities. Therefore, the ALJ was not required to evaluate the supportability
or consistency of either statement.
Even if the court were to find that the statements did constitute medical opinions (and to
be clear, the court finds that they do not), substantial evidence supports the ALJ’s conclusion that
the opinions are unpersuasive because they are inconsistent with the other evidence in the record.
Although Dr. Smith opined that Plaintiff’s ability to maintain gainful, full-time employment was
moderately impaired by her cognitive or mental health issues (Tr. 1831), her own observations
contradict this finding. Notably, Dr. Smith recorded that Plaintiff’s cognition was average; that she
provided age appropriate similarities and adequate interpretations to proverbs; that she was able to
register three objects immediately and recall one object after a five minute delay; that she could
repeat six digits forward, four digits backward, and four digits in sequence; that she could perform
arithmetic and serial-3 subtraction; that Plaintiff’s attention and concentration were fair; and that
her recent and remote memory was intact. (Tr. 1831). Other evidence in the record also supports a
finding that Plaintiff does not suffer from cognitive limitations. Dr. Estock opined that Plaintiff’s
file did not suggest any symptoms or functional limitations of an ongoing mental impairment, and
that Plaintiff’s history of anxiety is non-severe and does not affect her functioning. (Tr. 113). In
2020, Plaintiff denied any confusion or memory problems. (Tr. 866). And, in her function report,
Plaintiff stated that she usually has no problem paying attention or following spoken instructions,

19

has no problem following written instructions or getting along with authority figures, and typically
finishes any task that she starts. (Tr. 491).
Similarly, substantial evidence supports the ALJ’s conclusion that Dr. Lary’s opinion is
unpersuasive because it is inconsistent with other medical findings throughout the record.
Although Dr. Lary opined that Plaintiff’s ability to sit, stand, walk, lift, carry, bend, squat, and
kneel is somewhat impaired by chronic back and knee pain (Tr. 1839), both Dr. Johnson and Dr.
Turner repeatedly noted that Plaintiff had normal range of motion, normal strength, and no
limitations on mobility. (Tr. 866, 1824, 1914). And, after Plaintiff’s back surgery in 2022, Dr.
Boyett instructed Plaintiff to stop any restrictions and return to bending, lifting, and twisting. (Tr.
39).
Therefore, the court finds that the ALJ did not err in assessing the statements of Dr. Smith
and Dr. Lary because neither qualified as a medical opinion. However, even if it could be said they
did, substantial evidence supports the ALJ’s conclusion that the opinions are unpersuasive.
3.

The Bailey Opinion

The ALJ reviewed Dr. Bailey’s statements regarding Plaintiff’s abilities and opined as
follows:
Rodney Bailey, D.C. opined [Plaintiff] can lift/carry up to 10 pounds occasionally;
not use the left hand for repetitive grasping or pushing/pulling; occasionally bend,
climb and reach above the shoulder; never squat or crawl; has moderate restriction
against working around moving machinery, temperature changes and pulmonary
irritants. (Exhibit 25F). This opinion is not persuasive because it is not consistent
with the record as a whole and Dr. Bailey is a chiropractor, not an acceptable
medical source. Further, he provides no support for his opinion.
(Tr. 19). Plaintiff argues that the ALJ erred in her conclusory dismissal of Dr. Bailey’s opinion as
inconsistent and in focusing on the fact that the Dr. Bailey was not an acceptable medical source.

20

As an initial matter, the court notes that the ALJ’s decision that Dr. Bailey’s statements are
unpersuasive simply because he is not an acceptable medical source is problematic. Although
chiropractors are excluded from the list of medical sources who meet the definition of an
“acceptable medical source,” Dr. Bailey is nonetheless a “medical source” under 20 C.F.R. §
404.1502(a), (d). Under the new regulations that apply to evaluating medical opinion evidence, the
ALJ must analyze the persuasiveness of “all of the medical opinions” in the record, not just
opinions from acceptable medical sources. See 20 C.F.R. § 404.1520c(b) (emphasis added).
Therefore, Dr. Bailey’s status as a “medical source,” rather than an “acceptable medical source,”
does not automatically render his opinion unpersuasive. See Nicole R. v. Comm’r of Soc. Sec.,
2022 WL 3040084, at *4 (S.D. Ohio 2022) (finding that a chiropractor was a medical source).
Nonetheless, the ALJ’s conclusion that Dr. Bailey is not a medical source is irrelevant
because the ALJ still evaluated the persuasiveness of Dr. Bailey’s opinion. The ALJ stated that
Dr. Bailey’s opinion was not persuasive because it was inconsistent with the record as a whole and
because he provided no support for his opinion. (Tr. 19). Substantial evidence supports this
finding. Dr. Bailey opined that Plaintiff could occasionally lift/carry up to 10 pounds, never use
her left hand for repetitive grasping or pushing/pulling, never squat or crawl, and could only
occasionally bend, climb, and reach above the shoulder. (Tr. 1871). But, Dr. Bailey did not supply
any facts to support this view, and the records from his examination do not lend any such support.
In fact, Dr. Bailey recorded that Plaintiff had normal gait, normal posture, and that her muscle
strength and her neurological DTR were without limitations. (Tr. 1887).
Dr. Bailey’s opinion is also inconsistent with the other medical opinions in the record.
Although Dr. Bailey opined that Plaintiff could never squat or crawl and could only occasionally
bend, climb and reach above her shoulder, Dr. Boyett opined that Plaintiff was stable, balanced,

21

and could walk heel to toe without difficulty, had 5/5 strength and flexion in her musculoskeletal
examination, and had no limitations bending, lifting, and twisting (Tr. 39, 2187). Further, whereas
Dr. Bailey opined that Plaintiff could not use her left hand for repetitive grasping or
pushing/pulling, Dr. Shergy recorded that Plaintiff had good strength, sensation, and reflexes, that
her joints moved without any synovitis, and that her grip was good. (Tr. 2133).
In light of the ALJ’s evaluation of the entire record, and after careful review, the court finds
that substantial evidence supports the ALJ’s finding of Dr. Bailey’s opinion as unpersuasive.
4.

The Pruitt Opinion

Tsianinia Pruitt, one of Plaintiff’s physical therapist’s assistants from 2016-18, opined that
Plaintiff’s inability to tolerate pain medication, core muscle weakness, and weight gain contributed
to her constant hip and back pain and made everyday chores and exercises difficult for her to
perform. (Tr. 1853). Further, Pruitt opined that Plaintiff continued to suffer from shoulder pain
and decreased range of motion, even after completing physical therapy. (Tr. 1853). The ALJ
evaluated Pruitt’s statement and concluded as follows:
Exhibit 20F is a narrative statement of Tsianinia Pruitt. This opinion is not
persuasive as she is not a licensed physical therapist; rather she is a physical
therapist assistant. Further, it is not a formal functional assessment of limitations
and there are no physical therapy records to corroborate treatment.
(Tr. 19). Plaintiff argues that the ALJ erred because (1) the ALJ mistakenly concluded that Pruitt’s
opinion was not medical evidence; (2) a formal functional assessment of limitations is not required;
and (3) there are physical therapy records in the record. The court agrees with all three of these
arguments.
First, as addressed above, even though a physical therapist’s assistant does not meet the
definition of an “acceptable medical source,” it still qualifies as a “medical source” that an ALJ
must analyze. See 20 C.F.R. §§ 404.1520c(b); 404.1502(a), (d). Second, although the ALJ focused
22

on the fact that Pruitt’s opinion was not a formal functional assessment, this was irrelevant. The
regulations do not require a medical opinion be in a certain format. See Schinck v. Comm’r of Soc.
Sec., 935 F.3d 1245, 1261 (11th Cir. 2019); Glover v. Comm’r of Soc. Sec., 2022 WL 17826364,
*3 n.3 (11th Cir. 2022) (“It is well-established that an ALJ cannot reject a medical opinion because
it is not in a particular format.”). Finally, contrary to the ALJ’s conclusion otherwise, the record
consists of physical therapy records from Plaintiff’s time at Drayer Physical Therapy. (See Ex.
4F).
However, even though the ALJ did not address the supportability and consistency of
Pruitt’s opinion as required by 20 C.F.R. § 416.920c, the physical therapy records, medical
evidence, and Plaintiff’s own testimony indicate that Pruitt’s opinion regarding Plaintiff’s physical
capabilities is not supported by substantial evidence in the record. Indeed, it is readily apparent
from the record that the ALJ would have reached the same conclusion regarding Pruitt’s opinion
had the ALJ explained how she considered the supportability and consistency factors. Thus, any
error is harmless. See Mills v. Astrue, 226 F. App’x 926, 931 (11th Cir. 2007) (“[W]hen an
incorrect application of the regulation results in harmless error because the correct application
would not contradict the ALJ’s ultimate findings, the ALJ’s decision will stand.”) (citing Diorio
v. Heckler, 721 F.2d 726, 728 (11th Cir. 1983)); see also Pons v. Comm’r of Soc. Sec., 2022 WL
1214133, at *3 (11th Cir. 2022) (holding than ALJ’s failure to address a physician’s opinion was
harmless because “the [ALJ’s] good cause for rejecting [the opinion] is plainly evident on the face
of the record, rendering remand futile.”).
Pruitt opined that Plaintiff’s core muscle weakness, weight gain, and inability to tolerate
pain medication made everyday chores and exercises difficult to perform and caused her to suffer
from shoulder pain and decreased range of motion even after completing physical therapy. (Tr.

23

1853). But, the physical therapy records from this same period do not support that opinion.
Throughout sixteen visits, Plaintiff reported an average pain level of 2/10 and showed continuous
improvement in range of motion. (Tr. 672-720). At one of these visits, Pruitt even opined that
Plaintiff’s rehab potential and discharge prognosis were “good.” (Tr. 700). And, Plaintiff
repeatedly told Pruitt and the other staff that although she had yet to return to work, she did not
think her pain would bother her when she eventually did. (Tr. 672-700).
Nor is Pruitt’s opinion supported by other evidence in the record. After shoulder surgery
in 2018, Plaintiff could abduct her shoulder to 130 degrees and flex her shoulder to 160 degrees,
and, as a result, was released to full activity. (Tr. 658). Dr. Johnson noted on several occasions that
Plaintiff had normal range of motion and strength. (Tr. 1824, 1914-15). And, Plaintiff herself
admitted that she had little difficulty cooking, moving a kitchen chair, doing light chores, and
dressing/grooming herself and only mild difficulty washing dishes, grocery shopping, unpacking
and shelving groceries, and driving. (Tr. 487-89, 1843-44).
Therefore, although the court agrees with Plaintiff that the ALJ erred in some of her
analysis of Pruitt’s opinion, that error is harmless. It is readily apparent that the ALJ would have
reached the same conclusion regarding Pruitt’s opinion regardless of these errors and, as a result,
remand would be futile. See Mills, 226 F. App’x at 931; Pons, 2022 WL 1214133, at *3.
Substantial evidence supports the ALJ’s decision that Pruitt’s opinion about Plaintiff’s abilities is
not persuasive.
5.

The Hogan/Hinton Opinions

Next, Plaintiff asserts that the ALJ erred by not considering the opinions of Dr. Hogan or
Dr. Hinton. Before the court dives into this argument, some deciphering of the medical record and
the ALJ’s opinion is necessary.

24

Dr. Hogan provided a medical opinion about Plaintiff’s physical abilities at the initial stage
of Plaintiff’s disability application process and opined that Plaintiff had relatively mild limitations.
(Tr. 114-17). At the reconsideration stage, Dr. March provided a second medical opinion finding
Plaintiff was only slightly more limited. (Tr. 133-37). Although the ALJ did not evaluate the
persuasiveness of Dr. Hogan’s examination findings at the initial stage, the ALJ did evaluate Dr.
March’s opinion:
Dr. March opined [Plaintiff] could perform light work except occasionally
push/pull with the bilateral lower extremities; occasionally climb ramps/stairs,
balance, stoop, kneel, crouch and crawl; never climb ladders, ropes, or scaffolds;
occasionally reach overhead and laterally with the left upper extremity; and avoid
concentrated exposure to temperature extremes and workplace hazards. (Exhibit
3A). This opinion is persuasive because it is consistent with the record as a whole
including evidence received at the hearing level, which does not show any
worsening of [Plaintiff’s] conditions. Further, his opinion is supported by
appropriate reference to the record.
(Tr. 18).
Similarly, Dr. Estock provided a medical opinion about Plaintiff’s mental abilities at the
initial stage of the application process and opined that Plaintiff’s anxiety is non-severe and does
not restrict her functioning. (Tr. 112-13). At the reconsideration stage, Dr. Hinton provided a
second opinion finding that Plaintiff’s mental impairments only had a mild effect on her ability to
understand, remember, or apply information; her ability to interact with others; her ability to
concentrate, persist, or maintain pace; and her ability to adapt or manage herself. (Tr. 131-32).
Similarly, Dr. Hinton’s view was Plaintiff’s cognitive ability moderately impaired her ability to
maintain employment. Once again, the ALJ addressed only one opinion – Dr. Estock’s:
Dr. Estock opined that [Plaintiff] could perform light work except occasionally
push/pull with the bilateral lower extremities; frequently climb ramp/stairs,
balance, stoop, kneel, crouch, and crawl; never climb ladders, ropes, or scaffolds;
and avoid concentrated exposure to temperature extremes and all exposure to
workplace hazards. (Exhibit 1A). This opinion is partially persuasive because it is
consistent with the record at the initial level.
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(Tr. 18).
After review, it appears that the ALJ mistook the opinion of Dr. Hogan as the opinion of
Dr. Estock. As mentioned above, Dr. Hogan opined on Plaintiff’s physical abilities at the initial
stage, whereas Dr. Estock opined on Plaintiff’s mental abilities. Yet, when evaluating Plaintiff’s
physical capabilities, the ALJ referenced Dr. Estock. (Tr. 18). The court concludes that although
the ALJ described the findings of Dr. Hogan’s physical assessment (see Tr. 113-19), the ALJ
mistakenly labeled them as the findings of Dr. Estock. Indeed, the Commissioner admits this error.
(See Def.’s Br., Doc. # 15 at 19 n.5) (“The ALJ’s decision references Dr. Estock, but she appears
to have been actually considering the prior administrative medical findings of Victoria Hogan,
M.D., which assessed Plaintiff’s physical functioning.”). Having said that, this error is of no help
to Plaintiff. Although Plaintiff argues that the ALJ erred by not considering the opinions of Dr.
Hogan and Dr. Hinton, it is readily apparent that the ALJ actually did consider the opinion of Dr.
Hogan. Instead, the ALJ did not consider Dr. Hinton and Dr. Estock’s opinions about Plaintiff’s
psychological functioning.
An ALJ’s failure to evaluate one opinion is not reversible error when it and another opinion
were consistent with and supported the ALJ’s findings. See Sarria v. Comm’r of Soc. Sec., 579 F.
App’x 722, 724 (11th Cir. 2014) (concluding although the ALJ failed to analyze two medical
opinions, the error was harmless because the opinions were consistent with the ALJ’s findings)
(citing Dioro, 721 F.2d at 728). Dr. Estock opined that Plaintiff’s anxiety is non-severe and does
not hinder her functioning. (Tr. 113). And, Dr. Hinton opined that Plaintiff’s mental impairments
only mildly affect her ability to understand, remember, or apply information, her ability to interact
with others, her ability to concentrate, persist, or maintain pace, and her ability to adapt or manage
herself. (Tr. 131-32). This observation fits squarely within the ALJ’s findings.
26

Although Plaintiff has alleged that she had occasional lapses in concentration, the ALJ
noted that during Plaintiff’s mental status examination, she recalled three of three items
immediately, one of three items after five minutes, had fair attention and concentration, and had
intact recent and remote memory. (Tr. 14). Similarly, although Plaintiff complained of problems
understanding or remembering information, the ALJ noted that Plaintiff prepares meals, pays bills,
remembers to take all medications, and drives. (Tr. 14). Ultimately, the ALJ concluded that
Plaintiff is only mildly limited in her ability to understand, remember, or apply information;
interact with others; concentrate, persist, or maintain pace; and adapt or manage herself. (Tr. 14).
As a result, the ALJ did not account for any limitations in Plaintiff’s RFC based on her cognitive
or psychological abilities. The opinions of Dr. Estock and Dr. Hinton are consistent with this
conclusion. Thus, as substantial evidence supports the ALJ’s findings, the ALJ’s failure to evaluate
either opinion was harmless.
6.

The Schumacher Opinion

In August 2021, Plaintiff was referred to Physical Therapist Seth Shumacher for an
evaluation for lower back pain. After his assessment of Plaintiff, Shumacher stated as follows:
Pt is a 53 yo female referred to PT by Blake Boyett for evaluation of low back
p(ain). Pt presents to therapy with S&S of low back p(ain) with radiculopathy into
Bilateral LE secondary to the following findings: decreased lumbar ROM and
p(ain) with all motions, decreased LE strength with L worse than R, pos LSR and
FABER bilaterally, mild decrease with traction, hypomobility and severe p(ain) to
palpation over lumbar spine with worse p(ain) over L5-S1. Functionally pt has
limitations with walking (20 min), standing (20 min), sitting (20-30 min),
transitional movements like getting out of bed or getting in/out of car, home ADLs,
sweeping, mopping, vacuuming, squatting, bending, lifting. Pt scores 25/50 on
Oswestry LBP indicating moderate functional loss due to p(ain). Pt has a fair rehab
potential due to extensive past medical hx. Pt will benefit from skilled physical
therapy to improve on the above-mentioned deficits and improvements to improve
function and QOL.
(Tr. 2039).

27

The ALJ did not address Schumacher’s assessment. Plaintiff argues that the ALJ erred in
failing to consider Shumacher’s opinion or include his limitations when formulating Plaintiff’s
RFC. In response, the Commissioner contends that the ALJ was not required to address or consider
Shumacher’s limitations because they were not a medical opinion, but only recapped Plaintiff’s
subjective complaints.
Subjective complaints by a plaintiff, even when recorded by a medical source, simply are
not medical opinions. See 20 C.F.R. § 404.1513(a)(4) (defining evidence from a plaintiff as
evidence from a nonmedical source); see also Wood v. Comm’r of Soc. Sec., 2021 WL 2634325,
at *6 (M.D. Fla. 2021) (stating that a plaintiff’s own subjective complaints written down by a
physician do not constitute medical opinions). The Commissioner argues that the ALJ was not
required to analyze Shumacher’s physical therapy evaluation because it was only a recap of
Plaintiff’s subjective reports of pain. To some extent, the court agrees. For example, Shumacher’s
statements regarding the amount of time Plaintiff can walk, stand, and sit, as well as Plaintiff’s
reported difficulty getting out of bed, getting in/out of a car, home ADLs, sweeping, mopping,
vacuuming, squatting, bending and lifting are not findings from Schumacher’s examination of
Plaintiff, but instead taken directly from Plaintiff’s subjective complaints during her report of her
medical history. (See Tr. 2038). As a result, these statements do not qualify as a medical opinion,
and the ALJ was not required to consider them.
Having said that, portions of Schumacher’s evaluation notes are objective findings from
his examination of Plaintiff. Schumacher recorded that Plaintiff had decreased lumbar range of
motion, as well as decreased LE strength. (Tr. 2039). This clearly qualifies as medical evidence
under § 404.1513(a). Yet, even though this is so, the ALJ did not err in failing to explicitly discuss
this medical evidence in her analysis because there is no rigid requirement that an ALJ specifically

28

refer to every piece of evidence in a decision. Callahan v. Comm’r of Soc. Sec., 2023 WL 3736042,
at *1 (11th Cir. 2023). Rather, an ALJ’s opinion is proper -- even if it does not refer to a piece of
evidence -- so long as the decision considers a plaintiff’s medical condition as a whole. Dyer v.
Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005). Here, the ALJ clearly stated that she considered
all of Plaintiff’s symptoms, the medical opinions, and the prior administrative medical findings.
(Tr. 15). Her findings easily clear this hurdle. See Spears v. Saul, 2023 WL 2563728, at *13 (N.D.
Ala. 2023) (finding that an ALJ’s statement that he “considered the medical opinions and prior
administrative medical findings” show that he considered the plaintiff’s medical condition as a
whole); see also Thornton v. Comm’r of Soc. Sec., 597 F. App’x 604, 614 (11th Cir. 2015) (per
curiam) (holding than an ALJ’s failure to discuss certain record evidence was harmless because
the ALJ’s RFC assessment was supported by substantial evidence). Therefore, the ALJ did not err
in failing to explicitly evaluate Schumacher’s opinion.
B.

Substantial evidence supports the ALJ’s decision that Plaintiff is not disabled

After consideration of the entire record, the ALJ concluded as follows:
[Plaintiff] has the [RFC] to perform light work as defined in 20 CFR 404.1567(b)
except occasionally push/pull with the bilateral lower extremities; never climb
ladders, ropes, or scaffolds; occasionally climb ramps/stairs, balance, stoop, kneel,
crouch and crawl; occasionally reach in all directions with the left upper extremity;
and avoid concentrated exposure to temperature extremes, unprotected heights, and
moving machinery.
(Tr. 15). Based on this RFC, the ALJ determined that Plaintiff is capable of performing her past
work. (Tr. 19).
Plaintiff argues that the ALJ’s finding that she is not disabled is not supported by
substantial evidence. In making this argument, Plaintiff points to MRIs, physical therapy notes,
and her own subjective complaints that she believes support a finding of disability. But, “[u]nder
a substantial evidence standard of review, [Plaintiff] must do more than point to evidence in the
29

record that supports her position; she must show the absence of substantial evidence supporting
the ALJ’s conclusion.” Sims v. Comm’r of Soc. Sec., 706 F. App’x 595, 604 (11th Cir. 2017)
(emphasis added). Plaintiff has not done that.
Substantial medical evidence supports the ALJ’s determination that Plaintiff can perform
light work. Indeed, both Dr. March and Dr. Hogan opined that Plaintiff could perform light work.
(Tr. 118, 138). Numerous physicians recorded that Plaintiff’s cranial nerves, motor and sensory
function, reflexes, and coordination were all intact. (Tr. 1046, 1466, 1690, 1697, 1942, 1951,
2187). Plaintiff repeatedly had normal range of motion, as well as 5/5 strength throughout her
motor and neurological exams. (Tr. 866, 1824, 1838, 1887, 2187). It was often recorded that
Plaintiff had normal gait and station, and Nurse Practitioner Weaver even encouraged Plaintiff to
exercise four times a week or more. (Tr. 1924-25, 2086, 2096-97, 2142-43). Although Plaintiff
complained of shoulder pain, she showed improved cervical and left shoulder range of motion
after ten physical therapy sessions and, in November 2018, was released to full activity after Dr.
Boyett noted that she was able to abduct her shoulder to 130 degrees and flex her shoulder to 160
degrees. (Tr. 658, 788). Further, the ALJ accounted for Plaintiff’s shoulder pain when she limited
her to light work with only occasional reaching of the upper left extremity.
There is more. Plaintiff’s own testimony supports a finding that she can perform light work.
Plaintiff admitted to having little difficulty cooking, moving a kitchen chair, doing light chores,
and dressing/grooming herself, and only mild difficulty washing dishes, grocery shopping,
unpacking and shelving groceries, and driving. (Tr. 487-89, 1843-44). She spends her days
watching TV, baking and cooking, reading, shopping, and helping her husband around the house
and yard. (Tr. 490). She takes little pain medication. (Tr. 62). In her function report, Plaintiff stated
that she usually has no problem paying attention or following spoken instructions, she has no

30

problem following written instructions or getting along with authority figures, and she typically
finishes any task that she starts. (Tr. 491). And, throughout physical therapy, Plaintiff repeatedly
stated that although she had not at that point returned to work, she did not think her pain would
bother her when she did. (Tr. 673-700). All of this supports a finding that Plaintiff can perform
light work.
At this stage of review, the relevant inquiry is not whether some evidence might support a
finding of greater limitations than those provided in the RFC; rather, the question is whether
substantial evidence supports the ALJ’s decision. Undoubtedly, Plaintiff suffers from a number of
ailments that limit her daily activities. However, each of these limitations are reflected in the ALJ’s
findings and her determination of Plaintiff’s RFC. The ALJ’s findings are supported by substantial
evidence.
VI.

Conclusion
The court concludes that the ALJ’s determination that Plaintiff is not disabled is supported

by substantial evidence and the proper legal standards were applied in reaching this determination.
The Commissioner’s final decision is therefore due to be affirmed. A separate order in accordance
with this memorandum of decision will be entered.
DONE and ORDERED this August 30, 2024.

_________________________________
R. DAVID PROCTOR
CHIEF U.S. DISTRICT JUDGE

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