Tate v. Commissioner of Social Security
OPINION AND ORDER affirming the decision of the Commissioner. The Clerk of Court is directed to enter judgment consistent with this opinion, terminate all deadlines, and close the case. Signed by Magistrate Judge Douglas N. Frazier on 9/7/2021. (brh)
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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
Case No.: 3:20-cv-662-DNF
COMMISSIONER OF SOCIAL
OPINION AND ORDER
Plaintiff Chandary Tate seeks judicial review of the final decision of the
Commissioner of the Social Security Administration (“SSA”) denying her claim for
supplemental security income benefits. The Commissioner filed the Transcript of
the proceedings (hereinafter referred to as “Tr.” followed by the appropriate page
number), and the parties filed legal memoranda setting forth their respective
positions. As explained below, the decision of the Commissioner is AFFIRMED
pursuant to § 205(g) of the Social Security Act, 42 U.S.C. § 405(g).
Social Security Act Eligibility, Standard of Review, Procedural
History, and the ALJ’s Decision
Social Security Eligibility
The law defines disability as the inability to do any substantial gainful activity
by reason of any medically determinable physical or mental impairment which can
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be expected to result in death, or which has lasted or can be expected to last for a
continuous period of not less than twelve months. 42 U.S.C. §§ 416(i), 423(d)(1)(A),
1382c(a)(3)(A); 20 C.F.R. §§ 404.1505(a), 416.905(a). The impairment must be
severe, making the claimant unable to do her previous work, or any other substantial
gainful activity which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A),
1382c(a)(3)(A); 20 C.F.R. §§ 404.1505–404.1511, 416.905–416.911.
Standard of Review
The Commissioner’s findings of fact are conclusive if supported by
substantial evidence. 42 U.S.C. § 405(g). “Substantial evidence is more than a
scintilla and is such relevant evidence as a reasonable person would accept as
adequate to support a conclusion. Even if the evidence preponderated against the
Commissioner’s findings, we must affirm if the decision reached is supported by
substantial evidence.” Crawford v. Comm’r, 363 F.3d 1155, 1158 (11th Cir. 2004).
In conducting this review, this Court may not reweigh the evidence or substitute its
judgment for that of the ALJ, but must consider the evidence as a whole, taking into
account evidence favorable as well as unfavorable to the decision. Winschel v.
Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (citation omitted); Foote
v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995); Martin v. Sullivan, 894 F.2d 1520,
1529 (11th Cir. 1990). Unlike findings of fact, the Commissioner’s conclusions of
law are not presumed valid and are reviewed under a de novo standard. Keeton v.
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Dep’t of Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994); Maldonado
v. Comm’r of Soc. Sec., No. 20-14331, 2021 WL 2838362, at *2 (11th Cir. July 8,
2021); Martin, 894 F.2d at 1529. “The [Commissioner’s] failure to apply the correct
law or to provide the reviewing court with sufficient reasoning for determining that
the proper legal analysis has been conducted mandates reversal.” Keeton, 21 F.3d at
The ALJ must follow five steps in evaluating a claim of disability. 20 C.F.R.
§§ 404.1520, 416.920. At the first step, the ALJ must determine whether the claimant
§ 404.1520(a)(4)(i), (b); 20 C.F.R. § 416.920(a)(4)(i), (b). At step two, the ALJ must
determine whether the impairment or combination of impairments from which the
claimant allegedly suffers is “severe.” 20 C.F.R. § 404.1520(a)(4)(ii), (c); 20 C.F.R.
§ 416.920(a)(4)(ii), (c). At step three, the ALJ must decide whether the claimant’s
severe impairments meet or medically equal a listed impairment. 20 C.F.R.
§ 404.1520(a)(4)(iii), (d); 20 C.F.R. § 416.920(a)(4)(iii), (d). If the ALJ finds the
claimant’s severe impairments do not meet or medically equal a listed impairment,
then the ALJ must determine whether the claimant has the residual functional
capacity (“RFC”) to perform her past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv),
(e)–(f); 20 C.F.R. § 416.920(a)(4)(iv), (e)–(f).
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If the claimant cannot perform her past relevant work, the ALJ must determine
at step five whether the claimant’s RFC permits her to perform other work that exists
in the national economy. 20 C.F.R. § 404.1520(a)(4)(v), (g); 20 C.F.R.
§ 416.920(a)(4)(v), (g). At the fifth step, there are two ways in which the ALJ may
establish whether the claimant is capable of performing other work available in the
national economy. The first is by applying the Medical Vocational Guidelines, and
the second is by the use of a vocational expert. Phillips v. Barnhart, 357 F.3d 1232,
1239-40 (11th Cir. 2004); Atha v. Comm’r, Soc. Sec. Admin., 616 F. App’x 931, 933
(11th Cir. 2015).
The claimant bears the burden of proof through step four. Atha, 616 F. App’x
at 933. If the claimant meets this burden, then the burden temporarily shifts to the
Commissioner to establish the fifth step. Id.; 20 C.F.R. § 404.1520(a)(4)(v), (g); 20
C.F.R. § 416.920(a)(4)(v), (g). If the Commissioner presents evidence of other work
that exists in significant numbers in the national economy that the claimant is able
to perform, only then does the burden shift back to the claimant to prove she is unable
to perform these jobs. Atha, 616 F. App’x at 993.
Plaintiff filed an application for supplemental security income benefits on July
21, 2017, alleging disability beginning March 1, 2013. (Tr. 68, 172-181). The
application was denied initially on October 18, 2017, and upon reconsideration on
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December 11, 2017. (Tr. 68, 81). Plaintiff requested a hearing and on June 13, 2019,
a hearing was held before Administrative Law Judge (“ALJ”) James Cumbie. (Tr.
25-63). On July 19, 2019, the ALJ entered a decision finding Plaintiff not under a
disability since July 21, 2017, the date the application was filed. (Tr. 11-20).
Plaintiff requested review of the hearing decision, but the Appeals Council
denied Plaintiff’s request on April 28, 2020. (Tr. 1-5). Plaintiff initiated the instant
action by Complaint (Doc. 1) filed on June 26, 2020, and the case is ripe for review.
The parties consented to proceed before a United States Magistrate Judge for all
proceedings. (Doc. 14).
Summary of ALJ’s Decision
At step one of the sequential evaluation, the ALJ found that Plaintiff had not
engaged in substantial gainful activity since July 21, 2017, the application date. (Tr.
13). At step two, the ALJ found that Plaintiff had the following severe impairment:
“hip dysfunction.” (Tr. 13). At step three, the ALJ found that Plaintiff did not have
an impairment or combination of impairments that meets or medically equals the
severity of any of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix
1 (20 C.F.R. §§ 416.920(d), 416.925, and 416.926). (Tr. 15).
Before proceeding to step four, the ALJ found that Plaintiff had the following
After careful consideration of the entire record, the
undersigned finds that the claimant has the residual functional
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capacity to perform light work as defined in 20 [C.F.R.
§] 416.967(b) except the claimant must be permitted to
alternate sitting and standing positions every thirty minutes;
and never climb ladders, ropes, and scaffolds.
At step four, the ALJ found Plaintiff was capable of performing her past
relevant work as an assembler and soldering machine operator. (Tr. 18). The ALJ
further found this work did not require the performance of work-related activities
precluded by Plaintiff’s RFC. (Tr. 18).
Alternatively, at step five, the ALJ relied on the testimony of a vocational
expert to find that considering Plaintiff’s age, education, work experience, and RFC,
there are jobs that existed in significant numbers in the national economy that
Plaintiff could perform. (Tr. 19). Specifically, the ALJ found that Plaintiff could
perform such occupations as:
(1) marker, DOT 209.587-034, light, unskilled, SVP 2
(2) mail clerk, non-postal, DOT 209.687-026, light, unskilled SVP 2
(3) router, DOT 222.587-038, light unskilled, SVP 2
(Tr. 19). The ALJ concluded that Plaintiff had not been under a disability since July
21, 2017, the date the application was filed. (Tr. 20).
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On appeal, Plaintiff raises three issues: 1 (1) whether the ALJ erred in not
finding Plaintiff’s psychological impairment severe or including any limitations in
the RFC for this impairment; (2) whether the ALJ failed to properly consider
Plaintiff’s subjective complaints; and (3) whether the ALJ considered all of
Plaintiff’s impairments singly and in combination in assessing her RFC. (Doc. 21,
p. 5).2 The Court will address each issue in turn.
Whether the ALJ erred in not finding Plaintiff’s psychological
impairments severe or including any limitations in the RFC for this
Plaintiff argues the ALJ erred in finding Plaintiff’s mental impairments nonsevere. (Doc. 21, p. 8). She claims the reasons the ALJ afforded for finding
Plaintiff’s mental impairments non-severe were not supported by substantial
evidence. (Doc. 21, p. 8).
At step two, the ALJ found Plaintiff had mild limitations in the four
“paragraph B” functional areas in: understanding, remembering, or applying
information; interacting with others; concentrating, persisting, or maintaining pace;
While Plaintiff lists four issues in her Memorandum, she does not separate her arguments in the
Memorandum by issue. (Doc. 21, p. 5-15). In reviewing the issues, the Court finds the last two
issues both raise arguments concerning the assessment of Plaintiff’s RFC. (Doc. 21, p. 5). The
Court will address them together.
Plaintiff’s Memorandum does not include page numbers. The Court will refer to the CM/ECF
page numbers for this document.
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and adapting or managing oneself. (Tr. 14-15; see also 20 C.F.R. § 416.920a(b)(2),
(c)(3)). Because the ALJ found that Plaintiff’s medically determinable mental
impairment caused no more than mild limitations in any of these functional areas,
the ALJ found Plaintiff’s mental impairment non-severe. (Tr. 15). The ALJ also
reasoned that Plaintiff had no history of inpatient psychiatric admission, she was
treated for anxiety with prescribed medication, even with reports of depression and
anxious mood her evaluations were otherwise within normal limits, her treatment
reports did not depict her as psychiatrically disturbed or cognitively impaired, and
she did not report on disability reports nor did she testify that her mental functioning
or ability to work was significantly compromised by psychological symptoms. (Tr.
At step two, an ALJ considers the severity of a claimant’s impairments. 20
C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An impairment or combination of
impairments is not severe “if it does not significantly limit [a claimant’s] physical or
mental ability to do basic work activities” 20 C.F.R. §§ 404.1522(a), 416.922(a). In
other words, a severe impairment is an impairment or combination thereof that
significantly limits a claimant’s abilities to perform basic work activities. See SSR
85-28, 1985 WL 56856, *4 n.1; 20 C.F.R. §§ 404.1520(c), 404.1522(a), 416.920(c),
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The severity of an impairment “must be measured in terms of its effect upon
ability to work, and not simply in terms of deviation from purely medical standards
of bodily perfection or normality.” McCruter v. Bowen, 791 F.2d 1544, 1547 (11th
Cir. 1986). The impairment must also last or be expected to last for a continuous
period of at least 12 months. 20 C.F.R. §§ 404.1520(a)(4)(ii), 404.1509,
416.920(a)(4)(ii), 416.909. The claimant bears the burden at step two of proving that
he has a severe impairment or combination of impairments. O’Bier v. Comm’r of
Soc. Sec. Admin., 338 F. App’x 796, 798 (11th Cir. 2009).
This inquiry “acts as a filter in that the finding of any severe impairment ... is
enough to satisfy the requirement of step two and allow the ALJ to proceed to step
three.” Ball v. Comm’r of Soc. Sec. Admin., 714 F. App’x 991, 993 (11th Cir. 2018)
(internal quotations omitted). “Nothing requires that the ALJ must identify, at step
two, all of the impairments that should be considered severe.” Heatly v. Comm’r of
Soc. Sec., 382 F. App’x 823, 825 (11th Cir. 2010). If any impairment or combination
of impairments qualifies as “severe,” step two is satisfied and the claim advances to
step three. Gray v. Comm’r of Soc. Sec., 550 F. App’x 850, 852 (11th Cir. 2013)
(citing Jamison v. Bowen, 814 F.2d 585, 588 (11th Cir. 1987)). “[B]eyond the second
step, the ALJ must consider the entirety of the claimant’s limitations, regardless of
whether they are individually disabling.” Griffin v. Comm’r of Soc. Sec., 560 F.
App’x 837, 841-842 (11th Cir. 2014) (internal citations omitted).
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With this standard in mind, even if the ALJ should have characterized
Plaintiff’s mental impairments as severe impairments, any error is harmless because
the ALJ characterized another impairment – hip dysfunction – as severe. (Tr. 13).
The ALJ then advanced to step three of the sequential evaluation. See Ball, 714 F.
App’x at 993. With step two satisfied, the issue then becomes whether the ALJ
considered all of Plaintiff’s mental limitations in assessing the RFC.
The ALJ found consultative examiner Donald S. Freedman, M.D.’s October
2, 2017 assessment persuasive. (Tr. 18). Dr. Freedman found Plaintiff: cooperative;
awake; alert; oriented to place, person and time; had an appropriate mood and affect;
was interactive and responsive; had clear speech; was able to understand and follow
instructions; had adequate social skills; had good eye contact; and had an appropriate
appearance. (Tr. 406). While his impressions included depression, he included no
work-related limitations due to Plaintiff’s mental abilities. (Tr. 406).
The ALJ also relied on the state agency psychological consultants findings.
(Tr. 18). In a September 13, 2017 Psychiatric Review Technique evaluation, Kevin
Ragsdale, Ph.D. found mild limitations in the paragraph B criteria. (Tr. 74). Dr.
Ragsdale noted at Plaintiff’s initial appointment, her mental status evaluation
showed depressed/anxious mood, but was otherwise within normal limits. (Tr. 74).
He also noted that her treatment in 2017 did not depict her as psychiatrically
disturbed or cognitively impaired, and Plaintiff did not report that her mental
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functioning or ability to work was significantly compromised by psychological
symptoms. (Tr. 74). Dr. Ragsdale found no evidence that “supports the presence of
a severely limiting mental disorder.” (Tr. 74). In December 2017 on reconsideration,
state agency psychological consultant James Mendelson, Ph.D. concurred with Dr.
Ragsdale’s findings. (Tr. 87).
The ALJ did consider Plaintiff’s mental impairments and found no associated
work-related mental limitations when assessing her RFC. The ALJ considered the
medical records in evidence related to her mental impairments at step two and
determined Plaintiff had only mild limitations in the four functional areas. Then, in
formulating the RFC, the ALJ relied on Dr. Freedman’s, Dr. Ragsdale’s, and Dr.
Mendelson’s opinions, which he found persuasive, that Plaintiff did not have
additional work-related limitations based on her mental impairments. The Court
finds substantial evidence supports the ALJ’s findings at step two and in assessing
Plaintiff’s RFC concerning her alleged mental impairments.
Whether the ALJ failed to properly consider Plaintiff’s subjective
Plaintiff argues the ALJ did not properly evaluate Plaintiff’s subjective
symptoms of pain. (Doc. 21, p. 9). Plaintiff claims the ALJ’s statement that
Plaintiff’s pain is “well managed with medication compliance” contradicts a
treatment note showing that Plaintiff’s pain was “poorly controlled.” (Doc. 21, p. 9;
Tr. 13, 645). Plaintiff also contests the ALJ’s characterization from Dr. Freedman
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that she was putting forth “questionable effort” in his evaluation. (Doc. 21, p. 10; Tr.
407-408). Plaintiff contends that the ALJ did not understand her type of pain that it
is not caused by a musculoskeletal abnormality. (Doc. 21, p. 11).
A claimant may establish that she is disabled through her own testimony of
pain or other subjective symptoms. Ross v. Comm’r of Soc. Sec., 794 F. App’x 858,
867 (11th Cir. 2019) (citing Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005)).
In such a case, a claimant must establish:
“(1) evidence of an underlying medical condition and either (2)
objective medical evidence that confirms the severity of the
alleged pain arising from that condition or (3) that the
objectively determined medical condition is of such a severity
that it can be reasonably expected to give rise to the alleged
Id. (quoting Dyer, 395 F.3d at 1210). When evaluating a claimant’s testimony, the
ALJ should consider: “(1) the claimant’s daily activities; (2) the ‘duration,
frequency, and intensity’ of the claimant’s symptoms; (3) ‘[p]recipitating and
aggravating factors’; (4) the effectiveness and side effects of any medications; and
(5) treatment or other measures taken by the claimant to alleviate symptoms.” Id.
(quoting 20 C.F.R. §§ 404.1529(c), 416.929(c)(3)). The ALJ must consider these
factors given all of the evidence of record. Id. And if the ALJ discredits this
testimony, then the ALJ “‘must clearly articulate explicit and adequate reasons for’
doing so.” Id. (quoting Dyer, 395 F.3d at 1210). The ALJ may consider the
consistency of the claimant’s statements along with the rest of the record to reach
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this determination. Id. Such findings “‘are the province of the ALJ,’ and we will ‘not
disturb a clearly articulated credibility finding supported by substantial evidence.’”
Id. (quoting Mitchell v. Comm’r of Soc. Sec., 771 F.3d 780, 782 (11th Cir. 2014)).
A decision will be affirmed as long as the decision is not a “broad rejection which is
not enough to enable [a reviewing court] to conclude that the ALJ considered [the
claimant’s] medical condition as a whole.” Dyer, 395 F.3d at 1211 (quotation and
The ALJ found that even though Plaintiff’s medically determinable
impairments could be expected to cause the alleged symptoms, her statements
concerning the intensity, persistence and limiting effects of these symptoms were
not entirely consistent with the medical evidence and other evidence in the record.
(Tr. 16). In support, the ALJ acknowledged that Plaintiff experienced chronic pain,
secondary to chronic right hip pain, low back pain, and abdominal pain. (Tr. 16, 17).
But the ALJ noted that the medical records show Plaintiff to have a steady gait with
no abnormal, involuntary movements and no difficulties with maintaining balance.
(Tr. 16, 17).
The ALJ also noted that there is no imaging report to document severe
derangement of hip or back. (Tr. 17). Plaintiff does not claim there are imaging
reports, but claims that her type of pain would not appear on imaging reports. (Doc.
21, p. 12). Even if the Court accepts Plaintiff’s contention that her “neuropathic
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pain” would not appear on imaging reports, the ALJ articulated many other reasons
to find Plaintiff’s subjective statements inconsistent with the medical and other
evidence of record.
The ALJ specifically referred to Dr. Freedman’s evaluation and
acknowledged Plaintiff’s reported chronic right hip and low back pain. (Tr. 16). But
the ALJ also noted that Dr. Freedman’s physical evaluation was unremarkable in
that he noted normal range of motion in the upper extremities, 5/5 muscle strength
in the lower extremities, and normal range of motion in the cervical spine. (Tr. 1617). The ALJ also pointed out that Dr. Freedman observed no manipulative
limitations, no weakness, and no gait abnormalities. (Tr. 16). The ALJ noted that Dr.
Freedman found a decreased range of motion in the right hip and reduced range of
motion in the lumbar spine, but found Plaintiff was putting forth questionable effort
on the lumbar and right hip range of motion test. (Tr. 17). Plaintiff argues that her
efforts were not questionable, rather she was “guarding” her lumbar spine to avoid
pain. (Doc. 21, p. 10). While this argument may be plausible, it is undisputed that
Dr. Freedman noted that Plaintiff’s efforts on some portions of the evaluation were
questionable and the ALJ properly cited Dr. Freedman’s comments and could rely
on them. (Tr. 17, 407-408).
The ALJ also found that Plaintiff’s pain was reduced with treatment,
specifically by taking the medication, Tramadol. (Tr. 16). The ALJ explained that
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reports show that the Tramadol medication helped a lot to reduce her pain. (Tr. 17).
Plaintiff argues that in a September 26, 2017 progress note, Adrienne Deberry,
PharmD noted that Plaintiff’s pain was “[p]oorly controlled.” (Doc. 21, p. 9). The
Court agrees that in this one progress note of September 2017, Plaintiff reported that
Tramadol “helps her a lot to reduce pain,” and that Dr. Deberry noted that Plaintiff’s
pain was “[p]oorly controlled” and “[n]europathic pain continues to predominate.”
(Tr. 645). But as the ALJ recognized, other records from March and December 2018,
and February 2019 show that Plaintiff continued to report that Tramadol helped “a
lot to reduce her pain” and that her pain was “[f]airly controlled.” (Tr. 16-17, 601,
626, 638). Plus, the ALJ found in a progress note from November 2018, Plaintiff
denied joint pain, and joint stiffness. (Tr. 17, 666).
Finally, the ALJ also discussed that Plaintiff was able to care for her own
needs. (Tr. 17). The ALJ found Plaintiff’s daily activities showed a greater
functional capacity than alleged in her subjective statements. (Tr. 17). He cited
Plaintiff’s testimony that she is able to wash dishes, mop and sweep floors, go
grocery shopping, though she rides a motorized cart, and drives when necessary. (Tr.
17). The ALJ found the ability to participate in these activities was not consistent
with her allegations of disabling functional limitations. (Tr. 17).
For these reasons, the Court finds that the ALJ considered all of the evidence
of record and clearly articulated reasons to find Plaintiff’s statements concerning the
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intensity, persistence and limiting effects of her alleged symptoms were not entirely
consistent with the medical and other evidence of record. The ALJ’s decision on this
issue is supported by substantial evidence.
Whether the ALJ considered all of Plaintiff’s impairments singly
and in combination in assessing her RFC
Plaintiff argues that by the ALJ finding only one severe impairment, hip
dysfunction, he did not consider the combined effects of all of Plaintiff’s physical
and mental impairments. (Doc. 21, p. 12-13). Plaintiff argues limitations from her
chronic pain and anxiety limit her functionality. (Doc. 21, p. 13).
Prior to step four, the ALJ must assess Plaintiff’s RFC, which is the most she
can do despite her limitations. 20 C.F.R. § 404.1545(a). It consists of a claimant’s
“impairment(s), and any related symptoms, such as pain, [that] may cause physical
and mental limitations that affect what [a claimant] can do in a work setting.” 20
C.F.R. § 404.1545(a). An ALJ will “assess and make a finding about [the claimant’s]
residual functional capacity based on all the relevant medical and other evidence” in
the action. 20 C.F.R. §§ 404.1520(e), 404.1545(a)(1), (3). So, the ALJ must consider
all of a claimant’s medically determinable impairments, including those that are not
“severe.” 20 C.F.R. § 404.1545(a)(2); Schink v. Comm’r of Soc. Sec., 935 F.3d 1245,
1268 (11th Cir. 2019). “The ALJ makes this determination by considering a
claimant’s physical, mental, and other abilities affected by the impairment.” Id.
(citing 20 C.F.R. § 404.1545(b)-(d)).
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As discussed above, the ALJ thoroughly considered Plaintiff’s chronic pain
and mental impairments in combination with all of her alleged impairments. The
ALJ found Plaintiff’s statements concerning the limiting effects of her symptoms
were not entirely consistent with the medical records and other evidence of record
and the Court finds this determination is supported by substantial evidence. And
relying on the medical records, the ALJ found Plaintiff has no limitations from her
alleged mental impairments, which the Court finds is supported by substantial
evidence. The ALJ considered Plaintiff’s impairments whether severe or non-severe
in combination when assessing Plaintiff’s RFC. (See Tr. 15-16 (“In making this
finding, the undersigned has considered all symptoms and the extent to which these
symptoms can reasonably be accepted as consistent with the objective medical
evidence and other evidence based on the requirements of 20 [C.F.R. §] 416.929 and
SSR 16-3p.”)). The Court finds the ALJ’s RFC assessment is supported by
The decision of the Commissioner is AFFIRMED. The Clerk of Court is
directed to enter judgment consistent with this opinion, terminate all deadlines, and
close the case.
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DONE and ORDERED in Fort Myers, Florida on September 7, 2021.
Copies furnished to:
Counsel of Record
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