Tolen v. Commissioner of Social Security

Filing 20

OPINION and ORDER. It is ORDERED that the decision of the Commissioner is AFFIRMED pursuant to sentence four of 42 U.S.C. § 405(g), and the clerk is directed to enter judgment in the Commissioner's favor, terminate all scheduled events, and close the case. Signed by Magistrate Judge Nicholas P. Mizell on 3/10/2025. (TLP)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
DAWN TOLEN,
Plaintiff,
v.

2:23-cv-993-NPM

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
OPINION AND ORDER
Plaintiff Dawn Tolen seeks judicial review of a denial of Social Security
disability benefits. The Commissioner of the Social Security Administration filed
the transcript of the proceedings (Doc. 11),1 Tolen filed an opening brief (Doc. 15),
and the Commissioner responded (Doc. 16). As discussed in this opinion and order,
the decision of the Commissioner is affirmed.
I.

Eligibility for Disability Benefits and the Administration’s Decision
A.

Eligibility

The Social Security Act and related regulations define disability as the
inability to do any substantial gainful activity by reason of one or more medically
determinable physical or mental impairments that can be expected to result in death
or that have lasted or can be expected to last for a continuous period of not less than

1

Cited as “Tr.” followed by the appropriate page number.

twelve months. 2 Depending on its nature and severity, an impairment limits
exertional abilities like walking or lifting, nonexertional abilities like seeing or
hearing, tolerances for workplace conditions like noise or fumes, or aptitudes
necessary to do most jobs such as using judgment or dealing with people.3 And when
functional limitations preclude both a return to past work and doing any other work
sufficiently available in the national economy (or an impairment meets or equals the
severity criteria for a disabling impairment as defined in the regulatory “Listing of
Impairments”), the person is disabled for purposes of the Act.4
B.

Factual and procedural history

On November 6, 2019, Tolen applied for supplemental security income. (Tr.
21, 128, 413, 462). She asserted an onset date of July 13, 2019, alleging disability
due to the following: “messed up discs, referred to surgeon, left hand goes numb,
early onset dementia,” bipolar disorder, depression, anxiety, panic attacks, seizures,
diabetes, high blood pressure, mitro-valve prolapse, “fluid around heart,” pulmonary
thrombosis, and severe memory loss. (Tr. 128, 367, 369, 405, 413). As of the alleged

2

See 42 U.S.C. §§ 416(i), 423(d), 1382c(a)(3); 20 C.F.R. § 416.905.

3

See 20 C.F.R. §§ 416.913(a)(2)(i)(A)-(D) (discussing the various categories of workrelated abilities), 416.922(b) (providing examples of abilities and aptitudes necessary to do most
jobs), 416.945(b)-(d) (discussing physical, mental, and other abilities that may be affected by an
impairment).
4

See 20 C.F.R. § 416.911(a).

2

onset date, Tolen was 47 years old, with a high school education. (Tr. 34, 406, 413).
Tolen has no past relevant work, but testified she cared for her children,
grandchildren, and elderly father. (Tr. 24, 406, 430).
On behalf of the administration, a state agency5 reviewed and denied Tolen’s
application initially on September 25, 2020, and upon reconsideration on February
8, 2021. (Tr. 154). At Tolen’s request, Administrative Law Judge (ALJ) Ryan
Johannes held a hearing on July 1, 2021, and issued an unfavorable decision on
August 9, 2021. (Tr. 155, 158-71). However, the Appeals Council remanded the case
because the ALJ failed to hold a proffered supplemental hearing, an offer Tolen had
accepted. (Tr. 180).
On remand, ALJ Johannes issued another unfavorable decision finding Tolen
not disabled. (Tr. 18-36). Tolen’s timely request for review by the administration’s
Appeals Council was denied. (Tr. 1-3). Tolen then brought the matter to this court,
and the case is ripe for judicial review.
C.

The ALJ’s decision

The ALJ must perform a five-step sequential evaluation to determine if a
claimant is disabled. 20 C.F.R. § 416.920(a)(1). This five-step process determines:
(1) whether the claimant is engaged in substantial gainful activity; (2) if not,
whether the claimant has a severe impairment or combination of
impairments; (3) if so, whether these impairments meet or equal an
5

In Florida, a federally funded state agency develops evidence and makes the initial
determination whether a claimant is disabled. See 42 U.S.C. § 421(a); 20 C.F.R. § 416.903(a).

3

impairment listed in the Listing of Impairments; (4) if not, whether the
claimant has the residual functional capacity (“RFC”) to perform his past
relevant work; and (5) if not, whether, in light of his age, education, and work
experience, the claimant can perform other work that exists in significant
numbers in the national economy.

Atha v. Comm’r, Soc. Sec. Admin., 616 F. App’x 931, 933 (11th Cir. 2015) (internal
quotation omitted); see also 20 C.F.R. § 416.920(a)(4).
The governing regulations provide that the Social Security Administration
conducts this “administrative review process in an informal, non-adversarial
manner.” 20 C.F.R. § 416.1400(b). Unlike judicial proceedings, Social Security
Administration hearings “are inquisitorial rather than adversarial.” Washington v.
Comm’r of Soc. Sec., 906 F.3d 1353, 1364 (11th Cir. 2018) (quoting Sims v. Apfel,
530 U.S. 103, 111 (2000) (plurality opinion)). “Because Social Security hearings
basically are inquisitorial in nature, ‘[i]t is the ALJ’s duty to investigate the facts and
develop the arguments both for and against granting benefits.’” Id. Indeed, “at the
hearing stage, the commissioner does not have a representative that appears ‘before
the ALJ to oppose the claim for benefits.’” Id. (quoting Crawford & Co. v. Apfel,
235 F.3d 1298, 1304 (11th Cir. 2000)). “Thus, ‘the ALJ has a basic duty to develop
a full and fair record. This is an onerous task, as the ALJ must scrupulously and
conscientiously probe into, inquire of, and explore for all relevant facts.’” Id.
(quoting Henry v. Comm’r of Soc. Sec., 802 F.3d 1264, 1267 (11th Cir. 2015)).
Nonetheless, while the claimant is relieved of the burden of production during

4

step five as to whether there are enough jobs someone like the claimant can perform,
the claimant otherwise has the burdens of production and persuasion throughout the
process. See 20 C.F.R. § 416.912 (providing that the claimant must prove disability);
see also Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005) (noting the
regulations “place a very heavy burden on the claimant to demonstrate both a
qualifying disability and an inability to perform past relevant work”). In short, the
“overall burden of demonstrating the existence of a disability as defined by the
Social Security Act unquestionably rests with the claimant.” Washington, 906 F.3d
at 1359 (quoting Doughty v. Apfel, 245 F.3d 1274, 1280 (11th Cir. 2001)).
At step one of the evaluation, the ALJ found Tolen had not engaged in
substantial gainful activity since November 6, 2019, the application date. (Tr. 21).
At step two, the ALJ characterized Tolen’s severe impairments as: cervical
degenerative disc disease; lumbar degenerative disc disease; migraines; periodic
limb movement disorder; obesity; and posttraumatic stress disorder (PTSD). (Id.).
The ALJ also determined that Tolen suffered from non-severe impairments such as:
chest pain; “chronic pain NEC”; myofascial pain; opioid dependance; asthma;
snoring; “TIA NOS”; mitral-valve prolapse; pulmonary embolism; thrombosis;
seizures; mild cognitive impairment; hypertension; hyperglycemia; and occipital
neuralgia. (Tr. at 21-22). At step three, the ALJ determined Tolen did not have an

5

impairment or combination of impairments that met or medically equaled the
severity of an agency-listed impairment. (Tr. 22).
As a predicate to step four, the ALJ arrived at the following RFC:
The claimant maintains the following residual functional capacity to perform
light work as defined in 20 CFR 416.967(b) except the claimant is able to
occasionally climb stairs and ramps, but never climb ladders and scaffolds;
occasionally balance, stoop, kneel, and crouch; never crawl; occasionally
operate foot controls; frequently reach, handle, and finger with the dominant
left upper extremity; avoid concentrated exposure vibration; avoid all
moving mechanical parts and unprotected heights; face-to-face contact
needed for communication in an environment where the noise code is four as
defined by the SCO as loud; understand, remember, and carryout simple
repetitive tasks; can concentrate, attend, and persist on tasks for two-hour
periods and can adapt to change in the workplace; work that is not fast paced
with no work with assembly line/conveyor belts; and occasional interaction
with supervisors, coworkers, and the general public.

(Tr. 25). Given an absence of any past relevant work, the ALJ proceeded to step five
and found that Tolen could perform work for which a significant number of jobs
exist in the national economy. (Tr. 34-35). In support, a vocational expert opined
during the ALJ hearing that three occupations represent the kinds of jobs that an
individual of Tolen’s age, education, work experience, and RFC can perform:
• Routing Clerk, DOT #222.687-022, light; SVP 2, with 60,000 jobs in the
national economy;
• Cleaner, DOT # 323.687-014, light; SVP 2, with 235,000 jobs in the
national economy; and
• Marker, DOT # 209.587-034, light; SVP 2, with 233,000 jobs in the
national economy.6

6

The DOT numbers refer to the Dictionary of Occupational Titles and its detailed
explanations concerning each occupation’s requirements. These descriptions include exertion and

6

(Tr. 35). Thus, for purposes of the Act, the ALJ concluded Tolen was not disabled
from November 6, 2019, the application date, through February 13, 2023, the date
of decision. (Tr. 36).
II.

Analysis
Tolen’s appeal presents two issues for review:
(1) whether the ALJ committed reversible error by failing to consider
Tolen’s “chronic pain syndrome” at step two or anywhere in his
sequential analysis; and
(2) whether substantial evidence supports the ALJ’s conclusion that the
intensity, persistence, and limiting effects of Tolen’s impairments were
not as disabling as alleged, and thus, did not preclude simple, light-duty
work involving occasional interaction with others.
A.

Standard of review

The court “may not decide the facts anew, make credibility determinations, or
reweigh the evidence.” Buckwalter v. Acting Comm’r of Soc. Sec., 997 F.3d 1127,
1132 (11th Cir. 2021). While the court must account for evidence both favorable and
unfavorable to a disability finding and view the evidence as a whole, Foote v. Chater,
67 F.3d 1553, 1560 (11th Cir. 1995), the court’s review of the administration’s

skill levels. Exertion refers to the work—in a purely physical sense—that the job requires, and it
is divided into five categories: sedentary, light, medium, heavy, and very heavy. Skill refers to the
time it takes—during or before a job, such as prior experience or education—to develop necessary
abilities, and it is divided into three categories: unskilled, semiskilled, and skilled. The “SVP”
(Specific Vocational Preparation) provides further subdivision of the three skill categories into
nine levels: SVP 1 and 2 are unskilled; SVP 3 and 4 are semiskilled; and SVP 5 through 9 are
skilled.

7

decision is limited to determining whether “it is supported by substantial evidence
and based on proper legal standards.” Crawford v. Comm’r of Soc. Sec., 363 F.3d
1155, 1158 (11th Cir. 2004). “Substantial evidence is more than a scintilla and is
such relevant evidence as a reasonable person would accept as adequate to support
a conclusion.” Goode v. Comm’r of Soc. Sec., 966 F.3d 1277, 1280 (11th Cir. 2020)
(quoting Crawford, 363 F.3d at 1158)).
“[T]he threshold for such evidentiary sufficiency is not high.” Biestek v.
Berryhill, 139 S. Ct. 1148, 1154 (2019). The inquiry is “case-by-case,” and “defers
to the presiding ALJ, who has seen the hearing up close.” Id. at 1157. In other words,
a “presumption of validity attaches” to the ALJ’s factual findings. Walker v. Bowen,
826 F.2d 996, 999 (11th Cir. 1987). And if supported by substantial evidence, the
ALJ’s findings of fact are conclusive. 42 U.S.C. § 405(g). This means the district
court will affirm, even if the court would have reached a contrary result as finder of
fact, and even if the court finds that the evidence “preponderates against” the
agency’s decision. Noble v. Comm’r of Soc. Sec., 963 F.3d 1317, 1323 (11th Cir.
2020) (quoting Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991)).
B.

The ALJ did not commit reversible error by failing to consider Tolen’s
“chronic pain syndrome” in his sequential analysis.

Tolen argues that the ALJ failed to consider her “chronic pain syndrome”
(CPS), at step two or anywhere in his sequential analysis, as well as how this
syndrome compounds her pain from other impairments. (Doc. 15 at 16-17). This

8

error, according to Tolen, requires remand.
At step two of the sequential analysis, the ALJ must “consider the medical
severity of [the claimant’s] impairment(s).” 20 C.F.R. § 416.920(a)(4)(ii). A severe
impairment is one that significantly limits the claimant’s ability to do basic work
activities. Crayton v. Callahan, 120 F.3d 1217, 1219 (11th Cir. 1997). “The claimant
has the burden to establish a severe impairment or combination of impairments.”
Howard v. Commissioner, No. 23-13701, 2024 WL 4381008, *3 (11th Cir. Oct. 3,
2024). The claimant must prove the existence of a physical or mental impairment by
providing medical evidence consisting of signs, symptoms, and laboratory findings.
And unless an impairment is “expected to result in death, it must have lasted or must
be expected to last for a continuous period of at least 12 months.” 20 C.F.R.
§ 416.909. The administration calls this “the duration requirement.” Id.
“This step acts as a filter; if no severe impairment is shown the claim is denied,
but the finding of any severe impairment, whether or not it qualifies as a disability
and whether or not it results from a single severe impairment or a combination of
impairments that together qualify as severe, is enough to satisfy the requirement of
step two.” Jamison v. Bowen, 814 F.2d 585, 588 (11th Cir. 1987). Thus, the finding
of a single severe impairment satisfies step two. See id. And the failure to find
additional severe impairments is harmless error so long as the ALJ considers all of
the claimant’s impairments (severe and non-severe) in combination throughout the

9

rest of the sequential evaluation process. See, e.g., Freeman v. Comm’r Soc. Sec.
Admin., 593 F. App’x 911, 914-15 (11th Cir. 2014).
Here, at step two, the ALJ found Tolen had the following severe impairments:
cervical degenerative disc disease; lumbar degenerative disc disease; migraines;
periodic limb movement disorder; obesity; and posttraumatic stress disorder
(PTSD). (Tr. 21). And the ALJ also found that Tolen suffered from several nonsevere impairments, including “chronic pain NEC and myofascial pain,” noting that
these conditions were non-severe because Tolen had “little specific follow-up
treatment.” Id. Then, the ALJ went on to say that “[r]egardless, any limitations [with
respect to chronic and myofascial pain] are well supported in the RFC.” Id.
Even so, Tolen attacks what she perceives as the ALJ’s failure to acknowledge
her “chronic pain syndrome” anywhere throughout his sequential analysis. This
argument lacks merit because Tolen’s CPS does not meet the duration requirement,
and therefore, was not germane to the ALJ’s analysis. See Donnellan v. Comm’r of
Soc. Sec., No. 2:22-cv-542-NPM, 2024 WL 1298819, *8 (M.D. Fla. Mar. 27, 2024)
(finding that “an ALJ need not discuss an opined limitation unless it was expected
to last a year or more.”). To be sure, the record evidence shows that in October 2020,
Tolen was first diagnosed as having CPS, which was noted as “stable.” (Tr. 1204).
However, the treating provider opined that CPS “is often a diagnosis of exclusion
when other pain disorders are not identified. If appropriate lab tests and diagnostic

10

imaging is normal, Chronic Pain Syndrome may be the cause of your symptoms.
Tests may be needed to identify the source of pain.” Id. Tolen’s CPS diagnosis was
noted again in November and December 2020, and in February 2021, with Tolen’s
pain being noted as “stable” and that she was “able to function well on current
regiment.” (Tr. 1217, 1221, 1233-34). But by May 2021, approximately seven
months later, Tolen was no longer diagnosed with CPS; rather, she received a more
specific diagnosis of pain associated with lumbar and cervical radiculopathy—the
very impairments that the ALJ found qualified as “severe.” (Tr. 21, 1617-19, 162324, 1631, 1639-42, 1665-68).
Undeterred, Tolen asserts that the ALJ’s finding that her “chronic pain NEC”
was non-severe is illogical in light of his finding that her cervical and lumbar
degenerative conditions were severe. Even if true, Tolen has not shown that any error
the ALJ committed at step two was more than harmless. As discussed above, the
ALJ determined Tolen had multiple severe impairments along with non-severe
impairments (i.e., chronic pain), which the ALJ considered in combination
throughout the rest of the sequential process. Indeed, the ALJ stated that he
considered “all [of Tolen’s] medically determinable impairments, severe and nonsevere, in the formation of the residual functional capacity findings.” (Tr. 22).
Accordingly, the ALJ did not commit any reversible error.

11

C. The ALJ properly considered the effects of Tolen’s impairments, and
the RFC is supported by substantial evidence.
Tolen argues that because the ALJ discounted certain medical opinions of
record and her statements about her severe limitations, the ALJ failed to fully
appreciate the “total limiting effects” of her severe impairments. (Doc. 15 at 14-15).
According to Tolen, the RFC is based upon the ALJ’s defective analysis and is not
logically bridged to the record. (Doc. 15 at 16). Thus, Tolen asserts the RFC is not
supported by substantial evidence. (Doc. 15 at 4).
A claimant’s RFC is the most she can still do despite her limitations.
20 C.F.R. § 416.945(a). To determine a claimant’s RFC, an ALJ must “consider the
limiting effects of all [the claimant’s] impairment(s), even those that are not
severe[.]” 20 C.F.R. § 416.945(e). In other words, “[a]n RFC determination is an
assessment, based on all relevant evidence, of a claimant’s remaining ability to do
work despite h[er] impairments.” See Lewis v. Callahan, 125 F.3d 1436, 1440 (11th
Cir. 1997). “In making this holistic assessment, the ALJ considers evidence such as
the claimant’s daily activities; the location, duration, frequency, and intensity of the
claimant’s pain or other symptoms; the type, dosage, effectiveness, and side effects
of any medication or other treatment the claimant takes or has taken to alleviate pain
or other symptoms; treatment, other than medication, the claimant receives or has
received for relief of pain or other symptoms; any measures the claimant uses or has
used to relieve pain or symptoms; and any other factors concerning the claimant’s

12

functional limitations and restrictions.” Cnossen v. Comm’r of Soc. Sec., No. 2:22cv-574-KCD, 2023 WL 5013394, *4 (M.D. Fla. Aug. 7, 2023).
Contrary to Tolen’s claim, the record shows that the ALJ considered the “total
limiting effects” of her impairments and the ALJ’s findings are supported by
substantial evidence. The ALJ considered Tolen’s testimony concerning the
intensity, persistence, and limiting effects of her physical and mental impairments
that caused difficulty with sitting, standing, walking, lifting, memory, concentration,
adapting, and interacting with others. (Tr. 26, 53, 55, 426, 434, 458, 577, 606, 689,
698, 720, 723). And while the ALJ found that Tolen’s medically determinable
impairments could reasonably be expected to cause the alleged symptoms, the ALJ
concluded that Tolen’s statements about the effects of the symptoms were not
supported by the treatment history, objective medical findings, and other evidence
of record. (Tr. 26). Then the ALJ outlined the evidence that supports the RFC—
nothing more is required.
Still, Tolen argues that the medical opinion evidence and her statements
establish greater limitations than the ALJ’s RFC. Specifically, Tolen asserts that the
ALJ failed to properly consider the medical opinions from Barbara Violette, APRN,
and Drs. Paula Bowman, Dareld Morris, and Cheryl Kasprzak. (Doc. 15 at 18-22).
“A medical opinion is a statement from a medical source about what the
claimant can still do despite her impairment(s) and whether she has one or more

13

impairment-related limitations or restrictions.” 20 C.F.R. § 416.913(a)(2). When
confronted with a medical opinion, an ALJ must assess its persuasiveness based on
several factors: (1) supportability; (2) consistency; (3) relationship with the claimant,
including the length, frequency, and purpose of the examination and any treatment
relationship; (4) specialization; and (5) other factors, such as the source’s familiarity
with other evidence concerning the claim, that tend to support or contradict the
medical opinion. 20 C.F.R. § 416.920c(c). Supportability and consistency “are the
most important factors” in determining persuasiveness. 20 C.F.R. § 416.920c(b)(2).
As such, the ALJ must explain “how [he] considered the supportability and
consistency factors for [each] medical source’s medical opinions.” Id.
“Supportability” refers to whether the source’s medical opinion finds support within
the “objective medical evidence” they cite. Id. § 416.920c(c)(1). “Consistency” is a
measure of how the medical opinion aligns with evidence from other sources
(medical and nonmedical). Id. § 416.920c(c)(2).
Turning to Violette’s opinion, she completed a Mental Residual Functional
Capacity Questionnaire on June 29, 2021. (Tr. 1404-07). The questionnaire is a fourpage, check-the-box form in which Violette opined that Tolen had mild to moderate
limitations in the following domains: working in coordination with or in proximity
to others; responding appropriately to co-workers or peers; and maintaining personal
appearance and hygiene. (Tr. 1404-06). On the other hand, Violette opined that

14

Tolen had marked to extreme limitations in her ability to perform at production
levels expected by most employers; respond appropriately to changes in work
setting; remember locations, workday procedures, and instructions; maintain
attention and concentration for more than brief periods of time; process subjective
information accurately and to use appropriate judgement; be aware of normal
hazards and take necessary precautions; and behave predictably, reliably, and in an
emotionally stable manner. Id.
The ALJ found Violette’s opinion partially persuasive, noting that her opinion
as to the mild to moderate limitations were consistent with generally stable and
normal findings on examination, Tolen’s treatment history, and her activities of daily
living, such as caring for her children, grandchildren, and elderly father, and
performing personal care, shopping, and preparing simple meals. (Tr. 33). However,
the ALJ found that Violette’s opinion regarding Tolen’s marked to extreme
limitations were not supported by any written information or medical evidence of
record, and were inconsistent with Tolen’s normal exam findings, treatment history,
and activities of daily living. (Tr. 33-34). The ALJ also noted that the last treatment
record before Violette issued this June 2021 opinion, was September 2020. (Tr. 34,
1389).
Tolen argues that the ALJ’s rationale as to Violette’s opinion is not supported
by substantial evidence because he broadly rejected a portion of Violette’s opinion

15

without citation to the record. But contrary to Tolen’s assertion, the ALJ’s decision
shows he considered Tolen’s medical condition as a whole and there was no broad
rejection of Violette’s opinion. See Edgecomb v. Comm’r of Soc. Sec., 841 F. App’x
142, 144 (11th Cir. 2020) (citing Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir.
2005) (per curiam) (“[T]here is no rigid requirement that the ALJ specifically refer
to every piece of evidence in his decision, so long as the ALJ’s decision was not a
broad rejection that did not enable the court to conclude that the ALJ considered the
claimant’s medical condition as a whole.”)). Indeed, the ALJ explicitly stated that
“[a]fter careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform light work[.]” (Tr. 25)
(emphasis added); see also Id. at 26 (noting he considered all Tolen’s symptoms, as
well as medical opinions and prior administrative medical findings).
This is further evidenced by the fact that prior to assessing Violette’s opinion,
the ALJ provided a thorough, eight-page discussion of all testimonial and medical
evidence he relied upon in formulating the RFC. For instance, the ALJ found that
Tolen’s

“debilitating

allegations

of

difficulty

remembering,

interacting,

concentrating, and adapting” were inconsistent with examination findings, treatment
history with medication management, and activities of daily living. (Tr. 29). He cited
to records showing that Tolen’s memory, attention span, concentration, speech and
language—including naming, comprehension, and repetition—were intact. (Tr. 896,

16

912, 1422, 1433, 1470, 1476, 1497, 1502, 1593, 1605, 1607). While the ALJ noted
that after mini-mental status examination, Tolen was diagnosed with a mild
cognitive impairment and predominance of short-term memory impairment, he
considered Dr. Morris’s February 2020 evaluation, which demonstrated Tolen was
oriented times three; able to use decision making strategies, direct attention, read,
and interact appropriately; and had no gross deficits in cognitive function or speech
with intact short-term memory. (Tr. 30, 896, 1140-41). The ALJ noted that in July
2021, Tolen exhibited a normal mood and affect, as well as normal behavior,
judgment, and thought content. (Tr. 1481). Finally, the ALJ discussed records and
testimony showing she cared for her grandchildren, elderly father, and six dogs;
manages her medications independently; prepares simple meals; shops; drives;
attends football games and church; and uses her computer and listens to the radio on
a daily basis (for four to five hours). (Tr. 30-32, 430, 458, 460, 550, 554, 558, 561,
1392, 1400, 1422, 1676). In sum, the ALJ made clear that he considered Tolen’s
medical condition as a whole and his analysis of Violette’s medical opinion is
supported by substantial evidence.
Next, Tolen argues that even though the ALJ found Dr. Bowman’s opinion
persuasive, the RFC fails to include the full extent of the functional limitations
identified by Dr. Bowman. (Doc. 15 at 18-19). According to Tolen, nothing in the
RFC accounts for Dr. Bowman’s opinion that Tolen was mildly to moderately

17

limited in her ability to respond appropriately to usual work situations, or to regulate
emotions, control behavior, and maintain well-being. Id. at 19. As a result, Tolen
asserts there is no logical bridge between the ALJ’s findings and the RFC. Id.
But Tolen ignores the fact that “[t]he assessment of a claimant’s RFC is within
the exclusive province of the ALJ.” Wolff v. Comm’r of Soc. Sec., No. 2:22-cv-177SPC-NPM, 2023 WL 1971935, *6 (M.D. Fla. Jan. 27, 2023), report and
recommendation adopted, 2023 WL 1967586 (Feb. 13, 2023) (citing 20 C.F.R.
§ 416.946(c); accord Beegle v. Soc. Sec. Admin., Comm’r, 482 F. App’x 483, 486
(11th Cir. 2012) (“A claimant’s [RFC] is a matter reserved for the ALJ’s
determination, and while a physician’s opinion on the matter will be considered, it
is not dispositive.”)). Therefore, even where an ALJ has found a medical opinion to
be persuasive, as here, the ALJ does not have to adopt a limitation from the opinion
and incorporate into the RFC. See, e.g., Sanders v. Comm’r of Soc. Sec., No. 2:20cv-788-NPM, 2022 WL 970181, *6 (M.D. Fla. Mar. 31, 2022) (“And the regulations
do not require ALJs to adopt into an RFC every part of an opinion that they otherwise
find persuasive … Rather, the assessment of a claimant’s RFC is within the exclusive
province of the ALJ.”) (citing 20 C.F.R. § 416.920c(a)); K.T.B. v. Comm’r of Soc.
Sec., No: 3:20-cv-110-MSH, 2021 WL 5906372, *2 (M.D. Ga. Dec. 14, 2021)
(“Plaintiff provides no authority, however, for the proposition that merely because
an adjudicator finds a source persuasive, he must accept it wholly and incorporate

18

into his RFC assessment any and all limitations that source suggests. To the contrary,
the ALJ must only explain whether a source statement is persuasive considering its
supportability in, and consistency with, the medical evidence as a whole.”).
Tolen also takes issue with the ALJ’s rejection of Dr. Morris’s opinion that
she cannot stand or walk for prolonged periods or lift more than five pounds. (Doc.
15 at 19). In doing so, Tolen asserts that the ALJ did not reasonably conclude that
she can perform light-duty work because the record evidence shows ongoing
cervical pain with radicular symptoms, i.e., weakness, numbness, tingling, and pain
in both extremities, failing conservative treatments for symptoms, a left lumbar
ROM that was limited in extension, and chronic pain syndrome. (Tr. 933, 1175). In
evaluating Dr. Morris’s opinion, the ALJ concluded that it was not persuasive
because it was
inconsistent with the findings on examination of 5/5 strength in the upper and
lower extremities, 5/5 grip strength, normal and symmetric deep tendon
reflexes, no gross deficits in sensation, and the claimant was able to perform
heel/toe and squat maneuvers. In addition, the opinions are inconsistent with
longitudinal imaging, generally normal and stable findings on examination,
treatment history, and activities of daily living driving, caring for children,
caring for grandchildren, caring for her elderly father, performing personal
care, shopping, and preparing simple meals. This was a one-time evaluation
performed earlier in the month from the claimant’s cervical surgery and the
claimant had improvement after surgery.

(Tr. 33, 578, 821, 896-97, 1125, 1141, 1229-31, 1239, 1241, 1476, 1607, 1614-16,
1629-65).

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Tolen cites to evidence in the record that may tend to corroborate Dr. Morris’s
opinion. But under a substantial evidence standard, this will not suffice. A 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.”
See Sims v. Comm’r of Soc. Sec., 706 F. App’x 595, 604 (11th Cir. 2017); see also
Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004) (“[T]he mere fact that the
record may support a contrary conclusion is not enough to justify a reversal of the
administrative findings.”). Ultimately, the ALJ explained that Dr. Morris’s opinion
was unsupported and inconsistent with the record. This is all that is required. See
Cook v. Comm’r of Soc. Sec., No. 6:20-cv-1197-RBD-DCI, 2021 WL 1565832, *3
(M.D. Fla. Apr. 6, 2021) (“the ALJ’s analysis is directed to whether the medical
source’s opinion is supported by the source’s own records and consistent with the
other evidence of record[.]”). So the court must decline Tolen’s invitation to reweigh
the evidence.
Tolen’s argument regarding Dr. Kasprzak fares no better. Tolen places great
emphasis on Dr. Kasprzak’s opinion that Tolen may have been malingering during
the examination—arguing that it is considered “poor practice” for Dr. Kasprzak to
use the Structured Inventory of Malingered Symptomatology (SIMS) as it does not
differentiate malingerers from patients with legitimate concerns. (Doc. 15 at 22-23).
Citing to the Program Office Manual System (POMS) DI 22510.006(D), Tolen also

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contends that an ALJ should not include, as part of his final determination, any
findings or conclusions about potential malingering. Id. at 23. At bottom, Tolen
asserts that the ALJ’s reliance on Dr. Kasprzak’s opinion is not a reasonable basis
for his finding of no disability. Id. at 24.
However, the ALJ did not rely upon Dr. Kasprzak’s opinion about
malingering nor did he find it persuasive. Rather, the ALJ stated that he was
persuaded by Dr. Kasprzak’s opinion that Tolen “is likely to possess the requisite
skills and cognitive capacity to manage finances independently of others.” (Tr. 33,
1413). The ALJ noted that this finding was supported by Dr. Kasprzak’s examination
and was consistent with generally stable and normal findings on examination,
treatment history, and activities of daily living. (Tr. 33). And because Tolen does not
challenge this portion of the ALJ’s findings, she fails to establish any error.
Finally, Tolen claims that the ALJ’s failure to consider her chronic pain
syndrome and his mischaracterization of her activities of daily living generated
deficient reasons for discounting her subjective complaints about her mental
limitations. Tolen therefore argues that remand is necessary because her statements
about her chronic pain and mental impairments are patently consistent with the
medical record. (Doc. 15 at 20-22). This argument is unavailing.
To begin with, Tolen challenges the ALJ’s opinion that her “high level of
daily activities does not support limitations of function consistent with an inability

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to perform all work,” arguing that listening to the radio, watching television, or
possessing a driver’s license proves nothing about functioning at a “high level.”
(Doc. 15 at 21). In making this argument, however, Tolen trivializes the extent of
her activities as she does far more than just these activities. The ALJ’s analysis
reveals an expansive number of reported daily activities: caring for grandchildren,
elderly father, and six dogs; managing her medications independently; performing
personal care; preparing simple meals; driving (and has a driver’s license); shopping
for groceries; attending church and football games; and watching television and
using the computer on a daily basis (for several hours). (Tr. 430, 458, 460, 550, 554,
558, 561, 1392, 1400, 1422, 1676). The ALJ found that even if Tolen’s daily
activities were as truly limited as alleged, “it is difficult to attribute the degree of
limitation to [Tolen’s] medical conditions, as opposed to other reasons, in view of
the relatively benign medical evidence and other factors discussed.” (Tr. 32).
Although not dispositive, a claimant’s activities may show that her symptoms are
not as limiting as alleged. See 20 C.F.R. § 416.929(c)(3)(i); see also Dyer, 395 F.3d
at 1210; Stacy v. Comm’r, Soc. Sec. Admin., 654 F. App’x 1005, 1011 (11th Cir.
2016).
Furthermore, the ALJ did not unduly rely on Tolen’s activities in deciding her
claim, nor did the ALJ find her activities to be dispositive evidence of her ability to
work. Instead, the ALJ properly considered Tolen activities together with the other

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evidence in accordance with the regulations. On the whole, the ALJ’s
characterization of Tolen’s daily activities is supported by substantial evidence in
the record, even if Tolen does not believe it’s the most favorable characterization.
See Carr v. Comm’r of Soc. Sec., No. 22-12989, 2024 WL 94149, *3 (11th Cir. Jan.
9, 2024). Thus, the ALJ did not err.
The same is true for Tolen’s alleged chronic pain syndrome. As discussed
above, Tolen’s CPS does not qualify as an impairment under the regulations. See 20
C.F.R. § 416.909. Nevertheless, the ALJ still considered Tolen’s chronic pain (a
non-severe impairment) when formulating the RFC, which is supported by
substantial evidence.
III.

Conclusion
Upon consideration of the submissions of the parties and the administrative

record, substantial evidence supports the ALJ’s decision, and there was either no
error or no harmful error in the ALJ’s application of the correct legal standards.
Accordingly, the decision of the Commissioner is AFFIRMED pursuant to sentence
four of 42 U.S.C. § 405(g), and the clerk is directed to enter judgment in the
Commissioner’s favor, terminate all scheduled events, and close the case.
ORDERED on March 10, 2025

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