Cruz v. Commission of Social Security

Filing 30

ORDER denying 25 Plaintiff's Social Security Brief. Considering the record as a whole, the Court is satisfied the ALJ followed the applicable regulations and based his conclusions on substantial evidence. Accordingly, the Court AFFIRMS the Commissioner's decision and directs the Clerk to enter judgment for the Commissioner and close the file. Signed by Magistrate Judge Kyle C. Dudek on 11/13/2023. (CGW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
NIZANDRA CRUZ,
Plaintiff,
v.

Case No.: 2:22-cv-603-KCD

COMMISSION OF SOCIAL
SECURITY,
Defendant.
/
ORDER
Plaintiff Nizandra Cruz challenges the Commissioner of Social Security’s
decision denying her application for Social Security Disability Insurance
benefits under 42 U.S.C. § 405(g). (Doc. 25 at 9.)1 For the reasons below, the
Commissioner’s decision is affirmed.
I. Background
The procedural history, administrative record, and law are summarized
in the parties’ briefs (Doc. 25, Doc. 28, Doc. 29) and are not fully repeated here.
Cruz filed for benefits claiming she was disabled as of August 10, 2013. (Tr.
1721.) In her application, Cruz alleged her disability stemmed from
fibromyalgia, among other conditions. (Doc. 25 at 1.) Cruz’s request for benefits

Unless otherwise indicated, all internal quotation marks, citations, and alterations have
been omitted in this and later citations.
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was denied and the decision upheld on reconsideration. (Doc. 25 at 4.) Cruz
then exercised her right to a hearing before an Administrative Law Judge
(ALJ).
Cruz has appeared before two ALJs. The first issued an unfavorable
decision, which the Appeals Council vacated following an appeal. (Tr. 15-35;
Doc. 28 at 1.) Accordingly, the Appeals Council remanded Cruz’s application
and reassigned it to a second ALJ, who issued the unfavorable decision now
under review. (Tr. 1720-1753.)
The ALJ2 reached his decision by applying the standard evaluation
process. An individual claiming disability benefits must prove he is disabled.
Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). “The Social Security
Regulations outline a five-step, sequential evaluation process used to
determine whether a claimant is disabled: (1) whether the claimant is
currently engaged in substantial gainful activity; (2) whether the claimant has
a severe impairment or combination of impairments; (3) whether the
impairment meets or equals the severity of the specified impairments in the
Listing of Impairments; (4) based on a residual functional capacity assessment,
whether the claimant can perform any of his or her past relevant work despite
the impairment; and (5) whether there are significant numbers of jobs in the

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Hereafter, “the ALJ” refers solely to the second ALJ, Raymond Rogers.
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national economy that the claimant can perform given the claimant’s RFC, age,
education, and work experience.” Winschel v. Comm’r of Soc. Sec., 631 F.3d
1176, 1178 (11th Cir. 2011).
At step two, the ALJ found Cruz had several “severe” conditions, one of
which was fibromyalgia. (Tr. 1724.) That said, at step three, he determined
Cruz’s impairments did not “meet[] or medically equal[] the severity of one of
the listed impairments in 20 CFR Part 404, Subpart P[.]” (Tr. 1724, 1726.)
Thus, the ALJ had to assess Cruz’s residual functional capacity (“RFC”) before
resolving her ability to work at steps four and five.
As for Cruz’s RFC, the ALJ found she retained the ability to:
lift and carry 10 pounds occasionally and 5 pounds
frequently; sit for six hours in an eight hour workday;
stand and/or walk for two hours in an eight hour
workday; occasional climbing of ramps or stairs, but
no climbing of ladders, ropes, or scaffolds; frequent
balancing; occasional stooping, kneeling, and
crouching; no crawling; frequent forward, lateral, and
overhead reaching; frequent handling, fingering, and
feeling...
(Tr. 1729.) In assessing Cruz’s fibromyalgia, the ALJ also utilized the “pain
standard.” (Tr. 1729-30.) The pain standard applies “[w]here […] a claimant is
trying to establish a disability through her own testimony of pain and
subjective symptoms.” Bailey v. SSA, Comm’r, 791 F. App’x 136, 141 (11th Cir.
2019). This “requires the claimant show: (1) evidence of an underlying medical
condition; and (2) either (a) objective medical evidence confirming the severity
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of the alleged pain; or (b) that the objectively determined medical condition can
reasonably be expected to give rise to the claimed pain.” Id. “If a claimant
testifies as to her subjective complaints of disabling pain and other symptoms,
[…] the ALJ must clearly articulate explicit and adequate reasons for
discrediting the claimant’s allegations of completely disabling symptoms.” Id.
“This means that an ALJ’s decision must rely on a factual basis for discounting
a claimant’s testimony regarding his or her subjective symptoms related to
fibromyalgia, which can include a lack of proportionality between the
Plaintiff’s complaints of pain and the objective evidence, as well as
inconsistencies in the Plaintiff’s statements and actions.” Chambers v. Saul,
No. 18-24634-CIV, 2020 WL 4757336, at *8 (S.D. Fla. Apr. 29, 2020).
On this point, the ALJ found:
After careful consideration of the evidence, the
undersigned finds that the claimant’s medically
determinable impairments could reasonably be
expected to cause the alleged symptoms; however, the
claimant’s statements concerning the intensity,
persistence and limiting effects of these symptoms are
not entirely consistent with the medical evidence and
other evidence in the record for the reasons explained
in this decision.
(Tr. 1730.) The “medical evidence and other evidence” cited by the ALJ
included objective evidence, such as measurements of Cruz’s arm strength, and
subjective evidence, including statements Cruz made to her doctors about her
symptoms, daily activities, and pain. (Tr. 1730-40, 1745-46.)
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Based on the entire record, which included vocational expert testimony,
the ALJ concluded Cruz could not perform her past relevant work but could
perform other sedentary jobs, such as that of medical supplies assembler, final
assembler, electronics bonder, and stone setter. (Tr. 1751-52.) Because Cruz
could work, the ALJ found her not disabled as that term is defined in this
context. This appeal followed.
II. Standard of Review
“It is the ALJ’s job to evaluate and weigh evidence and to resolve any
conflicts in the record.” Gogel v. Comm’r of Soc. Sec., No. 2:20-CV-366-MRM,
2021 WL 4261218, at *9 (M.D. Fla. Sept. 20, 2021). Therefore, “[r]eview of the
Commissioner’s (and, by extension, the ALJ’s) decision denying benefits is
limited to whether substantial evidence supports the factual findings and
whether the correct legal standards were applied.” Holland v. Comm’r of Soc.
Sec., No. 2:21-CV-858-KCD, 2023 WL 2300593, at *2 (M.D. Fla. Mar. 1, 2023).
Substantial evidence means “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S.
Ct. 1148, 1154 (2019). It is more than a mere scintilla but less than a
preponderance. Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). As the
Supreme Court has explained, “whatever the meaning of substantial in other
contexts, the threshold for such evidentiary sufficiency is not high.” Biestek,
139 S. Ct. at 1154.

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When determining whether the ALJ’s decision is supported by
substantial evidence, the court must view the record as a whole, considering
evidence favorable and unfavorable to the Commissioner. Foote v. Chater, 67
F.3d 1553, 1560 (11th Cir. 1995). The Court may not reweigh the evidence or
substitute its judgment for that of the Commissioner. And even if the evidence
preponderates against the Commissioner’s decision, the reviewing court must
affirm if the decision is supported by substantial evidence. Bloodsworth v.
Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). Finally, “[u]nder a substantial
evidence standard of review, [the claimant] must do more than point to
evidence in the record that supports [her] position; [she] must show the
absence of substantial evidence supporting the ALJ’s conclusion.” Id.
III. Analysis
Cruz makes two arguments on appeal: (1) the ALJ improperly evaluated
her subjective complaints about her symptoms and resulting limitations
caused by fibromyalgia, and (2) the ALJ erred by failing to address a
discrepancy between the vocational evidence and the Dictionary of
Occupational Titles. (Doc. 25 at 10-11.) Both fail.
A. The ALJ Properly Evaluated Cruz’s Subjective Complaints
and Resulting Limitations
Cruz first argues the ALJ erred in evaluating her subjective complaints
and claimed limitations caused by fibromyalgia. According to Cruz, the ALJ
placed an undue emphasis on the objective evidence. And to compound the
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error, he also disregarded some of her limitations, including those caused by
fibromyalgia-related bad days. (Doc. 25 at 11, 16.)
When considering an application for disability resulting from
fibromyalgia, the ALJ will perform the same five-step evaluation process they
would otherwise apply. Yet, because a claimant with fibromyalgia may not
display objective symptoms, the Social Security Administration enacted SSR
12-2p, which “informs ALJs in how to consider fibromyalgia in the five-step
process.” Meza v. Comm’r of Soc. Sec., No. 6:21-CV-222-DNF, 2022 WL
3025971, at *4 (M.D. Fla. Aug. 1, 2022). “Normally, a claimant’s statements
about her pain or other symptoms will not alone establish disability; there
must also be objective medical evidence.” Marcus v. Comm’r of Soc. Sec., No.
6:21-CV-1745-KCD, 2023 WL 1860638, at *3 (M.D. Fla. Feb. 9, 2023). But
given that fibromyalgia may not present objective symptoms, an ALJ may not
reject it as an impairment based on a lack of objective evidence. Gebauer v.
Saul, 801 F. App’x 404, 410 (7th Cir. 2020). In other words, a claimant may
satisfy step two based solely on subjective evidence. Id.
However, SSR 12-2p is largely concerned with step two of the five-step
process. See Tillman v. Kijakazi, No. 1:21-CV-79-AW-MJF, 2022 WL 3594903,
at *1 (N.D. Fla. Aug. 23, 2022). The Rule “does not limit the evidence an ALJ
can consider in evaluating the severity of fibromyalgia for purposes of
determining a residual functioning capacity.” Gebauer, 801 F. App’x at 410.
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Indeed, SSR 12-2p states that objective evidence is relevant to the ALJ’s
analysis of a fibromyalgia claim:
As with any claim for disability benefits, before we find
that a person with an MDI of [fibromyalgia] is
disabled, we must ensure there is sufficient
objective evidence to support a finding that the
person’s impairment(s) so limits the person’s
functional abilities that it precludes him or her from
performing any substantial gainful activity.
[…]
As in all claims for disability benefits, we need
objective medical evidence to establish the
presence of an MDI. When a person alleges
[fibromyalgia], longitudinal records reflecting ongoing
medical evaluation and treatment from acceptable
medical sources are especially helpful in establishing
both the existence and severity of the impairment.
SSR 12-2p (emphasis added).
As noted, at step two of his analysis, the ALJ determined Cruz had
several “severe” conditions, including fibromyalgia. (Tr. 1724.) Once that was
determined, the ALJ did not err by considering objective evidence in steps
three, four, and five of his analysis. Gebauer, 801 F. App’x at 410. Any
broadside attack Cruz makes about the ALJ relying on objective evidence is
simply misplaced.
Cruz also criticizes the ALJ for placing “undue emphasis on the objective
evidence of record in evaluating [her] fibromyalgia,” and spends much of her
brief identifying facts she believes were disregarded or misinterpreted. (Doc.
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25 at 11, 16-41.) This argument impermissibly invites the Court to act as a fact
finder. Because “[i]t is solely the province of the [ALJ] to resolve conflicts in
the evidence and assess the credibility of witnesses,” the Court must refuse to
reweigh the evidence or substitute its judgment for that of the ALJ.
Bloodsworth, 703 F.2d at 1239; Lacina v. Comm’r, Soc. Sec. Admin., 606 F.
App’x 520, 525 (11th Cir. 2015). Even if the evidence preponderates against
the Commissioner, the Court must affirm if the decision is supported by
substantial evidence. Bloodsworth, 703 F.2d at 1239. The ALJ has met this low
bar. His decision contains a robust summary of the evidence and explanations
for his findings at each step of the analysis. More importantly, Cruz has failed
to show there is an “absence of substantial evidence supporting the ALJ’s
conclusion.” Id. Rather, she mostly points to evidence she believes supports
her argument. This does not warrant reversal.
The Court further finds the ALJ considered the longitudinal evidence,
accounting for Cruz’s fibromyalgia-related bad days. In his decision, the ALJ
“need not refer to every piece of evidence so long as his decision does not
broadly reject a claim for Social Security benefits.” Kyne v. Berryhill, No. 8:17CV-2272-AAS, 2018 WL 6381426, at *3 (M.D. Fla. Dec. 6, 2018). An ALJ
considering an application premised upon fibromyalgia must “consider a
longitudinal record whenever possible because the symptoms of [fibromyalgia]
can wax and wane so that a person may have bad days and good days.” SSR
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12-2p. This encompasses all the evidence, especially the applicant’s medical
records. When objective medical records reflecting ongoing medical evaluation
and treatment do not support the applicant’s claim, SSR 12-2p explains what
the ALJ should consider as part of the longitudinal record:
If objective medical evidence does not substantiate the
[claimant’s] statements about the intensity,
persistence, and functionally limiting effects of the
fibromyalgia symptoms, the ALJ will consider all of
the evidence in the case record, including the person’s
daily activities, medications or other treatments the
person uses, or has used, to alleviate the symptoms;
the nature and frequency of the person’s attempts to
obtain medical treatment for symptoms; and
statements by other people about the person’s
symptoms.
SSR 12-2p; see also Laurey v. Comm’r of Soc. Sec., 632 F. App’x 978, 988 (11th
Cir. 2015).
Here, the ALJ provided a detailed summary of the evidence, which spans
a decade, citing Cruz’s daily activities, the frequency and nature of her doctor
appointments, the notes within her medical records, and the relief she
experienced from the medications and treatments she received. (Tr. 1726-27,
1730-40). The evidence cited by the ALJ shows Cruz had both good and bad
days. (See Id.) The evidence cited also supports the ALJ’s conclusions. That
Cruz believes the ALJ should have highlighted more evidence of her bad days
in his decision does not change this. The Court is satisfied the ALJ considered

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the longitudinal evidence, in accordance with SSR 12-2p, in rendering his
decision.
Finally, Cruz asserts the ALJ’s analysis was “rote.” The Court disagrees.
Even if portions of the ALJ’s analysis were not overly robust, his decision is
sufficient considering his detailed discussion of the longitudinal evidence. See,
e.g., Roussin v. Comm’r of Soc. Sec., No. 2:20-cv-905-SPC-MRM, 2021 WL
6205948, at *10 (M.D. Fla. Dec. 16, 2021); Rice v. Barnhart, 384 F.3d 363, 370
n.5 (7th Cir. 2004) (“[I]t is proper to read the ALJ’s decision a whole, and . . . it
would be a needless formality to have the ALJ repeat substantially similar
factual analyses[.]”).
B. There Was No Error with the ALJ’s Assessment of the
Vocational Evidence
As mentioned, if the ALJ finds that a claimant cannot perform past
relevant work he must show the existence of other jobs in the national economy
that the claimant can perform. In making this determination, the ALJ may
consider both the information contained in the Dictionary of Occupational
Titles (DOT) and testimony from a vocational expert. Washington v. Comm’r of
Soc. Sec., 906 F.3d 1353, 1360 (11th Cir. 2018). An ALJ has an “affirmative
duty to identify apparent conflicts” between the vocational expert and the
DOT. Id. And once a conflict is identified, the ALJ is required “to offer a
reasonable explanation for the discrepancy, and detail in his decision how he

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has resolved the conflict.” Id. Per the Eleventh Circuit, an apparent conflict is
“a conflict that is reasonably ascertainable or evident from a review of the DOT
and the [vocational expert’s] testimony.” Id. at 1365.
To determine Cruz’s capacity to work, the ALJ posed several
hypotheticals to a vocational expert. One hypothetical asked the expert to
consider a person who could only perform sedentary work that does not involve
written instructions. (Tr. 1800-01, 1803.) The expert, in turn, identified several
jobs this hypothetical person could perform. (Tr. 1803.) He further testified
that his opinion was consistent with the DOT. (Id.)
Cruz claims the ALJ had to consider her “inability to read, write and/or
communicate in English . . . because . . . the identified jobs by the [vocational
expert] at the claimant’s hearing contemplated a hypothetical for an individual
who would require no written instructions.” (Doc. 25 at 44.) In other words, the
ALJ had to consider that Cruz doesn’t speak English. And this creates a
discrepancy with the DOT because the jobs identified by the vocational expert
(and adopted by the ALJ) have “language development levels” of either 1 or 2.
(Id. at 43.)
This argument goes nowhere. Cruz is not illiterate. She can speak
Spanish. She also reported the ability to read and understand English, as well
as the ability to understand written instructions. (Tr. 2139, 2152.) Given this
evidence, there was no apparent discrepancy between the vocational expert’s
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testimony and the DOT. See Piloto v. Saul, No. 20-21788-CV, 2021 WL
4244865, at *4 (S.D. Fla. Sept. 6, 2021). “[T]he Eleventh Circuit has held that
jobs with a language level of two do not specifically require that the claimant’s
language be English.” Id. at *5.
Cruz says this case is indistinguishable from the error identified in
Frazier v. Kijakazi, No. 8:20-CV-1736-CPT, 2022 WL 950649 (M.D. Fla. Mar.
30, 2022). Not so. The claimant in Frazier was illiterate. Thus, there was “little
question [of] at least an apparent conflict between the VE’s testimony about
the jobs [he] could perform despite his illiteracy and the language
requirements of those occupations as set forth in the DOT.” Id. at *4. Cruz is
not illiterate. She can apparently read, write, and follow directions in English.
(Tr. 2139.) Considering these reported abilities, it was not error for the ALJ to
accept the vocational expert’s testimony. See, e.g., Viotes v. Saul, No. 1:19-CV24223-JLK, 2021 WL 681892, at *10 (S.D. Fla. Jan. 19, 2021).
Finally, even if there was error, it was harmless because Cruz “is still
capable of performing the unskilled jobs identified by” the vocational expert.
Castro v. Kijakazi, No. 6:20-CV-972-SPF, 2021 WL 4452790, at *4 (M.D. Fla.
Sept. 29, 2021). The jobs in question “do not require significant English
language literacy.” Id.

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IV. Conclusion
Considering the record as a whole, the Court is satisfied the ALJ followed
the applicable regulations and based his conclusions on substantial evidence.
Accordingly, the Court AFFIRMS the Commissioner’s decision and directs the
Clerk to enter judgment for the Commissioner and close the file.
ORDERED in Fort Myers, Florida on November 13, 2023.

Copies: All Parties of Record

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