Oliveira v. Commissioner of Social Security
MEMORANDUM OF DECISION. The final decision of the Commissioner is AFFIRMED. The Clerk of Court is DIRECTED to enter judgment in favor of the Commissioner and thereafter to CLOSE the case. Signed by Magistrate Judge Leslie Hoffman Price on 9/19/2022. (MKH)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
MELISSA MARIE OLIVEIRA,
Case No: 6:21-cv-131-LHP
COMMISSIONER OF SOCIAL
MEMORANDUM OF DECISION1
Melissa Marie Oliveira (“Claimant”) appeals the final decision of the
Commissioner of Social Security (“the Commissioner”) denying her application for
disability insurance benefits.
Doc. No. 1.
Claimant raises three arguments
challenging the Commissioner’s final decision, and, based on those arguments,
requests that the matter be reversed for an award of benefits, or alternatively,
remanded to the Commissioner for further consideration. Doc. No. 34, at 11, 26,
30, 39. The Commissioner asserts that the decision of the Administrative Law
Judge (“ALJ”) is supported by substantial evidence and that the final decision of the
The parties have consented to the exercise of jurisdiction by a United States
Magistrate Judge. See Doc. Nos. 24–26.
Commissioner should be affirmed. Id. at 39. For the reasons discussed herein, the
Commissioner’s final decision is AFFIRMED.
On April 23, 2019, 2 Claimant filed an application for disability insurance
benefits; she alleges a disability onset date of July 25, 2018. R. 228–36. Claimant’s
application was denied initially and on reconsideration, and Claimant requested a
hearing before an ALJ. R. 158–61, 165–77, 181. The ALJ held an administrative
hearing on August 10, 2020. R. 32–69.
After the hearing, the ALJ issued an unfavorable decision finding that
Claimant was not disabled.
Claimant sought review of the ALJ’s
decision by the Appeals Council. R. 225–27. On November 24, 2020, the Appeals
Council denied the request for review. R. 1–6. Claimant now seeks review of the
final decision of the Commissioner by this Court. Doc. No. 1.
The “Application Summary for Disability Benefits” and the Joint Memorandum
state that Claimant filed the application on April 23, 2019, but according to the ALJ’s
decision, Claimant filed the application on December 18, 2018. Compare R. 15, with R. 230
and Doc. No. 34, at 1. For consistency, and because the application date is not dispositive
of this appeal, the Court utilizes the application date stated by the parties.
THE ALJ’S DECISION. 3
After careful consideration of the entire record, the ALJ performed the five-
step evaluation process as set forth in 20 C.F.R. § 404.1520(a). R. 15–25. 4 The ALJ
first found that Claimant meets the insured status requirements of the Social
Security Act (SSA) through December 31, 2023. R. 17. The ALJ also found that
Claimant had engaged in substantial gainful activity after the July 25, 2018 alleged
disability onset date. Id. 5 The ALJ further concluded that Claimant suffered from
the following severe impairments: morbid obesity, lumbar degenerative disc
Upon a review of the record, counsel for the parties have adequately stated the
pertinent facts of record in the Joint Memorandum. Doc. No. 34. Accordingly, the Court
adopts those facts include in the body of the Joint Memorandum by reference without
restating them in entirety herein.
An individual claiming Social Security disability benefits must prove that he or
she is disabled. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005) (citing Jones v. Apfel,
190 F.3d 1224, 1228 (11th Cir. 1999)). “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 (‘RFC’) 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 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) (citing Phillips v. Barnhart, 357 F.3d
1232, 1237 (11th Cir. 2004); 20 C.F.R. §§ 404.1520(a)(i)–(v), 416.920(a)(i)–(v)).
The ALJ noted that Claimant worked after the alleged disability onset date at the
level of substantial gainful activity, but the ALJ still proceeded with the full sequential
evaluation process. See R. 17. Claimant raises no issues in this appeal regarding the
ALJ’s substantial gainful activity findings.
disease/spondylosis status post laminectomy and fusion; cervical/thoracic
spondylosis; depression; and anxiety disorder, but that Claimant did not have an
impairment of combination of impairments that met or equaled a listed impairment
in 20 C.F.R. Part, Subpart P, Appendix 1. R. 17–19.
Based on a review of the record, the ALJ found that Claimant had the residual
functional capacity (“RFC”) to perform light work as defined in the Social Security
regulations, 6 except:
she can frequently handle, finger, push, pull and/or reach overhead with
both upper extremities, can occasionally push, pull and/or operate foot
controls with both lower extremities, can occasionally balance on uneven
surfaces, can occasionally stoop, kneel, crouch, and crawl, can
occasionally climb stairs and ramps, can never climb ladders, ropes and
scaffolds and can occasionally be exposed to vibrations, unprotected
heights and moving machinery parts. The claimant requires a moderate
noise work environment as defined in the DOT and SCO and is able to
understand and remember simple instructions, make simple work
related decisions, carry-out simple instructions, can occasionally deal
with changes in a routine work setting, and can occasionally deal with
coworkers and the public.
The social security regulations define light work to include:
lifting no more than 20 pounds at a time with frequent lifting or carrying of
objects weighing up to 10 pounds. Even though the weight lifted may be
very little, a job is in this category when it requires a good deal of walking or
standing, or when it involves sitting most of the time with some pushing and
pulling of arm or leg controls. To be considered capable of performing a full
or wide range of light work, you must have the ability to do substantially all
of these activities. If someone can do light work, we determine that he or
she can also do sedentary work, unless there are additional limiting factors
such as loss of fine dexterity or inability to sit for long periods of time.
20 C.F.R. § 404.1567(b).
After considering the record evidence, Claimant’s RFC, and the testimony of
the VE, the ALJ found that Claimant was unable to perform any past relevant work,
including work as an office manager, commercial sales representative, or office
helper. R. 23. However, considering Claimant’s age, education, work experience,
and RFC, as well as the testimony of the VE, the ALJ concluded that there were jobs
existing in significant numbers in the national economy that Claimant could
perform, representative occupations to include marker, non-postal mail clerk, and
router. R. 24. Accordingly, the ALJ concluded that Claimant was not disabled
from the July 25, 2018 alleged disability onset date through the date of the decision.
STANDARD OF REVIEW.
Because Claimant has exhausted her administrative remedies, the Court has
jurisdiction to review the decision of the Commissioner pursuant to 42 U.S.C. §
405(g), as adopted by reference in 42 U.S.C. § 1383(c)(3). The scope of the Court’s
review is limited to determining whether the Commissioner applied the correct
legal standards and whether the Commissioner’s findings of fact are supported by
substantial evidence. Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir.
2011). The Commissioner’s findings of fact are conclusive if they are supported by
substantial evidence which is defined as “more than a scintilla and is such relevant
evidence as a reasonable person would accept as adequate to support a conclusion.”
Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997).
The Court must view the evidence as a whole, taking into account evidence
favorable as well as unfavorable to the Commissioner’s decision, when determining
whether the decision is supported by substantial evidence. Foote v. Chater, 67 F.3d
1553, 1560 (11th Cir. 1995). The Court may not reweigh 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).
In the Joint Memorandum, which the Court has reviewed, Claimant raises
three assignments of error: (1) the ALJ’s RFC determination is not supported by
substantial evidence because the ALJ failed to adequately weigh the medical
opinions of Dr. Paul Keller and his physician’s assistant Michael Teepe, PA-C; (2)
the ALJ erred in relying on testimony of the VE after posing and relying on a
hypothetical question that did not adequately reflect Claimant’s limitations; and (3)
the ALJ failed to properly consider Claimant’s subjective complaints. Doc. No. 34,
at 11, 26, 30. Each assignment of error will be discussed in turn.
Medical Opinions of Dr. Keller and PA-C Teepe.
The ALJ is tasked with assessing a claimant’s RFC and ability to perform past
relevant work. Phillips v. Barnhart, 357 F.3d 1232, 1238 (11th Cir. 2004), superseded
by regulation on other grounds as stated in Jones v. Soc. Sec. Admin., No. 22-10507, 2022
WL 3448090, at *1 (11th Cir. Aug. 17, 2022) (citing Harner v. Soc. Sec. Admin., Comm'r,
38 F.4th 892 (11th Cir. 2022)). The RFC “is an assessment, based upon all of the
relevant evidence, of a claimant’s remaining ability to do work despite his
impairments.” Lewis, 125 F.3d at 1440. In determining a claimant’s RFC, the ALJ
must consider all relevant evidence, including the opinions of medical and nonmedical sources. 20 C.F.R. § 404.1545(a)(3).
Claimant filed her application for disability insurance benefits on April 23,
Effective March 27, 2017, the Social Security Administration
implemented new regulations related to the evaluation of medical opinions, which
provide, in pertinent part, as follows:
(a) How we consider medical opinions and prior administrative
We will not defer or give any specific
evidentiary weight, including controlling weight, to any medical
opinion(s) or prior administrative medical finding(s), including
those from your medical sources. When a medical source
provides one or more medical opinions or prior administrative
medical findings, we will consider those medical opinions or prior
administrative medical findings from that medical source together
using the factors listed in paragraphs (c)(1) through (c)(5) of this
section, as appropriate. The most important factors we consider
Subparagraph (c) provides that the factors to be considered include: (1)
when we evaluate the persuasiveness of medical opinions and
prior administrative medical findings are supportability
(paragraph (c)(1) of this section) and consistency (paragraph (c)(2)
of this section). We will articulate how we considered the medical
opinions and prior administrative medical findings in your claim
according to paragraph (b) of this section.
20 C.F.R. § 404.1520c(a). The regulations further state that because supportability
and consistency are the most important factors under consideration, the
Commissioner “will explain how [she] considered the supportability and
consistency factors for a medical source’s medical opinions or prior administrative
medical findings in [the] determination or decision.” Id. § 404.1520c(b)(2). 8
Pursuant to the new regulations, the Commissioner is not required to
articulate how she “considered each medical opinion or prior administrative
medical finding from one medical source individually.”
Id. § 404.1520c(b)(1).
“Courts have found that ‘[o]ther than articulating [her] consideration of the
supportability and consistency factors, the Commissioner is not required to discuss
supportability; (2) consistency; (3) relationship with the claimant (which includes
consideration of the length of treatment relationship; frequency of examination; purpose
of treatment relationship; extent of treatment relationship; and examining relationship); (4)
specialization; and (5) other factors that tend to support or contradict a medical opinion or
prior administrative medical finding. 20 C.F.R. § 404.1520c(c).
“Supportability relates to the extent to which a medical source has articulated
support for the medical source’s own opinion, while consistency relates to the relationship
between a medical source’s opinion and other evidence within the record.” Welch v.
Comm’r of Soc. Sec., No. 6:20-cv-1256-DCI, 2021 WL 5163228, at *2 (M.D. Fla. Nov. 5, 2021)
(footnote omitted) (citing 20 C.F.R. §§ 404.1520c(c)(1)–(2), 416.920c(c)(1)–(2)).
or explain how [she] considered any other factor in determining persuasiveness.’”
Bell v. Comm’r of Soc. Sec., No. 6:20-cv-1923-DCI, 2021 WL 5163222, at *2 (M.D. Fla.
Nov. 5, 2021) (quoting Freyhagen v. Comm’r of Soc. Sec. Admin., No. 3:18-cv-1108MCR, 2019 WL 4686800, at *2 (M.D. Fla. Sept. 26, 2019)). See also Delaney v. Comm'r
of Soc. Sec., No. 6:20-cv-2398-DCI, 2022 WL 61178, at *2 (M.D. Fla. Jan. 6, 2022)
(noting that the ALJ may, but is not required to, explain how he or she considered
the remaining factors besides supportability and consistency).
Here, Claimant argues that the ALJ erred in the RFC determination by failing
to state the weight assigned to the medical opinions of Dr. Keller and his physician’s
assistant, Michael Teepe, PA-C. Doc. No. 34, at 11–16.
On July 25, 2018, Claimant underwent corrective spinal surgery, which was
performed by Dr. Keller.
On August 9, 2018, Claimant had a post-
operative evaluation with Dr. Keller.
On August 29, 2018, Claimant
returned to Dr. Keller for screening for possible deep vein thrombosis. R. 471. On
September 14, 2018, Claimant again visited Dr. Keller, at which point Dr. Keller
stated that Claimant was “doing very well,” with “no lower extremity pain,” and
although her back pain was not completely gone, it was “different.”
According to the September 14, 2018 treatment note, Dr. Keller:
returned [Claimant] to work 4 hours per day with the restrictions of no
heavy lifting, no lifting over 10 pounds, no prolonged sitting, standing
or walking without breaks, and no pushing or pulling. These are
temporary and she will call us in the interim if she would like to go
back to full duty prior to my seeing her at the next visit.
Claimant returned to Dr. Keller’s office with some concerns on October 3,
2018, and was seen by PA-C Teepe. R. 469. Claimant’s pain level was 4/10, which
worsened with activity.
PA-C Teepe recommended continued physical
therapy and noted that “a work note was provided.” Id. The record indicates that
Claimant could return to work at that time with partial limitations, which were the
“functional imitations or restrictions as listed previously.” See R. 848.
On November 14, 2018, Claimant had a three-month follow up visit with PAC Teepe.
At the appointment, Claimant appeared distressed, and
complained of back pain. Id. PA-C Teepe noted that Claimant had quit her job
due to her pain. Id. PA-C Teepe scheduled an MRI. Id. 9
Approximately six months post-surgery, Claimant saw Dr. Keller on January
8, 2019. R. 467. Claimant continued to complain of pain, and although she was
initially better after surgery appeared to have a recurrence of pain. Id. Dr. Keller
stated that there was no need for surgical intervention and that Claimant would
Although the Joint Memorandum states that PA-C Teepe indicated on November
14, 2018 that Claimant “may return to work so long as she follows the functional limitations
or restrictions as listed previously,” see Doc. No. 34, at 4, that note appears to be a recitation
of the restrictions determined at the prior visit. See R. 468. See also R. 845–46.
- 10 -
benefit from physical therapy and pain management. Id. No work restrictions
were noted. See id.
On February 27, 2019, Claimant returned to Dr. Keller’s office following a
motor vehicle accident. R. 841. PA-C Teepe’s examination findings were overall
unremarkable, and he recommended physical therapy.
restrictions were noted. See id.
In the decision, the ALJ discusses the records pertinent to Claimant’s
corrective spinal surgery, the treatment notes from her post-operative visits, and
the results of her post-surgery MRI:
An MRI of the claimant’s lumbar spine in July 2018 showed
moderate central disc herniations at L4-5 and L5-S1, and multilevel
degenerative disc disease, central stenosis, facet arthropathy and
neural foraminal encroachment. (Exhibits B2F/7; B10F/11). The
claimant underwent corrective surgery on her back, including revision
bilateral L5-S1 decompression with bilateral S1 nerve root
foraminotomies, primary decompression L4-L5 with bilateral L5 nerve
root foraminotomies, posterior spinal fusion L4 through the sacrum,
posterior lumbar interbody fusion L5-S1, implantation of PEEK cage at
L5-S1, segmental instrumentation L4 through the sacrum using
instrumentation system, local bone autograft from laminar bone, and
discectomy L4-L5. (Exhibits B5F/3; B17F/2).
In August 2018, the claimant was six weeks post lumbar
decompression and fusion L4 to the sacrum. She was “doing very
well” with no lower extremity pain, and improved preoperative back
pain. (Exhibit B2F/34). Motor strength testing was 5/5 normal in
the bilateral lower extremities and gait was within normal limits.
(Exhibit B2F/37). Range of motion (ROM) of the back was normal.
- 11 -
MRI of the claimant’s lumbar spine in January 2019 showed
interval discectomies L4 through S1, and bilateral pedicle screw fusion
and laminectomies L4 through S1. (Exhibits B10F/10; B19F/2). The
claimant was noted to have back pain, but left leg pain had improved
since surgery. On physical exam, the claimant had a positive left
Patrick maneuver and pain to palpation of the left sacroiliac joint.
There were no findings to suggest further back surgery would be
beneficial. She was “improving and healing from her back surgery.”
Motor exam was 5/5 throughout all areas tested. Memory was
normal. Gait was normal and she was able to stand without difficulty.
(Exhibit B14F/1, 4). The claimant denied memory difficulties, balance
problems, or chronic headaches. She reported anxiety. (Exhibit
B18F/8). . . .
But in the decision, the ALJ does not specifically address the post-operative
temporary work restrictions given by Dr. Keller. See id.
In the Joint Memorandum, Claimant argues that the ALJ erred in failing to
“weigh” the opinions from Dr. Keller and PA-C Teepe regarding the temporary
work restrictions imposed. Doc. No. 34, at 14–15. According to Claimant, these
temporary restrictions are “clearly at odds with the [RFC] determination” regarding
her ability to perform light work. Id. at 15. Claimant contends that the ALJ’s
alleged error in failing to weigh the opinions is not harmless because the ALJ’s
hypothetical questions to the VE did not include the limitations noted by Dr. Keller
and PA-C Teepe. Id. So, Claimant requests reversal. Id. at 15–16.
In response, the Commissioner provides a lengthy recitation of the new Social
Security regulations, and notes that the ALJ was under no obligation to “weigh” the
- 12 -
medical opinions at issue. Id. at 16–23. 10 However, the Commissioner concedes
that the ALJ erred by not evaluating these medical opinions in the decision. Id. at
23. Nonetheless, the Commissioner argues that any error was harmless on the facts
of this case because the post-surgical work restrictions Dr. Keller and PA-C Keepe
recommended were merely temporary. Id. at 24.
On review, the Court agrees with the Commissioner, and the persuasive
authority she cites in support. For example, in Cymek v. Comm’r of Soc. Sec., No.
5:20-cv-00122-PRL, Doc. No. 22 (M.D. Fla. Aug. 27, 2021), the claimant sought
reversal where the ALJ did not address post-surgical lifting restrictions by the
surgeon and the surgeon’s physician’s assistant. Those restrictions were reflected
in post-surgery follow-up notes by physician’s assistants, but were not included in
later treatment notes. Id. at 9–10. The court addressed the argument under the
new Social Security regulations, and determined that because the record contained
numerous indications that the lifting restrictions were temporary, and because the
record implicitly indicated that the restrictions were lifted, any error by the ALJ in
Given the Eleventh Circuit’s recent opinion in Harner v. Soc. Sec. Admin., Comm'r,
38 F.4th 892 (11th Cir. 2022), which the Commissioner has filed as supplemental authority,
see Doc. No. 35, the Commissioner is correct that case law applicable to medical opinions
under the older version of the Social Security regulations has no application here. See
Harner, 38 F.4th at 896 (“[S]ection 404.1520c . . . abrogates our earlier precedents applying
the treating-physician rule.”).
- 13 -
failing to properly evaluate the temporary work restrictions was harmless. Id. at
Similarly, in Kirkpatrick v. Berryhill, No. 2:17-CV-502-GMB, 2018 WL 6070343
(M.D. Ala. Nov. 20, 2018), the court addressed the claimant’s contention that the
ALJ erred (under the older Social Security regulations) in failing to weigh the
opinion of a treating surgeon.
The court found any error harmless, however,
because although in a post-operative plan the surgeon recommended that the
claimant avoid lifting more than 1 pound, the ALJ fully discussed the surgeon’s
progress notes, there was no evidence that the claimant was not expected to resume
function following the surgery, and the context indicated that the lifting restriction
was a temporary post-operative recommendation rather than a permanent
limitation. Id. at *8–9. See also Saffioti v. Comm'r of Soc. Sec., No. 2:17-cv-143-FtM99CM, 2019 WL 298473, at *4 (M.D. Fla. Jan. 7, 2019), report and recommendation
adopted, 2019 WL 293324 (M.D. Fla. Jan. 23, 2019), adhered to, 2019 WL 1513354 (M.D.
Fla. Apr. 8, 2019) (reversing on other grounds but determining that the failure to
state weight given to medical opinion was harmless error because Plaintiff's
disability was temporary); Whitted v. Berryhill, No. 7:17-CV-124-FL, 2018 WL
5291861, at *7 (E.D.N.C. May 17, 2018), report and recommendation adopted, 2018 WL
4664124 (E.D.N.C. Sept. 28, 2018) (“While there is no explicit record that states the
neurosurgeon cleared Claimant of the limitations contained in the discharge
- 14 -
instructions, such instructions are not reiterated in the record and it is clear to the
court those instructions were discharge instructions aimed at helping Claimant
recover properly from her surgery. Accordingly, to the extent the ALJ erred in
failing to weigh the discharge instructions, the court finds any such error is
harmless given Dr. Davis did not treat Claimant and the additional limitations
contained in the discharge instructions were typical of any post-surgical
Here, the work restrictions imposed by Dr. Keller and PA-C Teepe followed
Claimant’s corrective spinal surgery and specifically state that such restrictions are
temporary. See R. 470. And notably, subsequent treatment notes do not reiterate
the temporary work restrictions. See R. 467, 840–42. Given that the overall context
indicates that the post-surgery restrictions were temporary, the Court agrees with
the Commissioner that any failure by the ALJ to evaluate the temporary work
restriction opinions of Dr. Keller and PA-C Teepe in this case was harmless. See
Cymek, No. 5:20-cv-00122-PRL, Doc. No. 22, at 10–11; Kirkpatrick, 2018 WL 6070343,
Accordingly, the Court rejects Claimant’s first assignment of error.
Vocational Expert’s Testimony.
An ALJ may consider the testimony of a VE at step five of the sequential
evaluation process when determining whether the claimant can perform other jobs
- 15 -
in the national economy. Phillips, 357 F.3d at 1240, superseded by regulation on other
grounds as stated in Jones, 2022 WL 3448090, at *1. The ALJ must pose hypothetical
questions that are accurate and that include all of the claimant’s functional
limitations. See Pendley v. Heckler, 767 F.2d 1561, 1563 (11th Cir. 1985). However,
the ALJ is not required to include in the hypothetical question “each and every
symptom” of the claimant’s impairments, Ingram v. Comm’r of Soc. Sec. Admin., 496
F.3d 1253, 1270 (11th Cir. 2007), or “findings . . . that the ALJ . . . properly rejected
as unsupported,” Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1161 (11th Cir. 2004).
Claimant argues that the hypothetical posed by the ALJ to the VE in this case
“does not accurately account for all the limitations of the claimant as outlined in the
evidence” based on the ALJ’s failure to evaluate the opinions of Dr. Keller and PAC Teepe. Doc. No. 34, at 28. 11
As discussed above, the Court finds that any error in the ALJ’s failure to
evaluate the temporary work restrictions by Dr. Keller and PA-C Teepe was
harmless on the facts of this case. Consequently, because “the ALJ’s hypothetical
question to the VE, which is consistent with the ALJ’s RFC determination, properly
accounted for Claimant’s functional limitations,” Claimant’s second assignment of
Claimant also includes one sentence regarding Claimant’s use of a cane, see Doc.
No. 34, at 26, which appears to be a scrivener’s error, given that, as the Commissioner
points out, neither Dr. Keller nor PA-C Teepe opined regarding Claimant’s use of a cane,
nor does the record contain other evidence suggesting that Claimant requires a cane to
- 16 -
error is unpersuasive. See Straka-Acton v. Comm’r of Soc. Sec., No. 6:14-cv-630-OrlGJK, 2015 WL 5734936, at *4 (M.D. Fla. Sept. 29, 2015). See also Ybarra v. Comm’r of
Soc. Sec., 658 F. App’x 538, 543 (11th Cir. 2016) (rejecting argument that the ALJ’s
hypothetical to the VE was defective “because the criticisms that [the claimant] aims
at the hypothetical question are identical to those leveled at the ALJ’s RFC, and, as
discussed above, the RFC is supported by substantial evidence”).
Claimant’s Subjective Complaints of Pain.
A claimant may establish disability through his or her own testimony of pain
or other subjective symptoms.
Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir.
2005). A claimant seeking to establish disability through his or her own testimony
(1) evidence of an underlying medical condition; and (2) either (a)
objective medical evidence confirming the severity of the alleged pain;
or (b) that the objectively determined medical condition can reasonably
be expected to give rise to the claimed pain.
Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002). “If the ALJ decides not to
credit a claimant’s testimony as to her pain, he must articulate explicit and adequate
reasons for doing so.” Foote, 67 F.3d at 1561–62. The Court will not disturb a
clearly articulated finding that is supported by substantial evidence. Id. at 1562.
If the ALJ determines that the claimant has a medically determinable
impairment that could reasonably produce the claimant’s alleged pain or other
symptoms, the ALJ must then evaluate the extent to which the intensity and
- 17 -
persistence of those symptoms limit the claimant’s ability to work. 20 C.F.R. §
404.1529(c)(1). In doing so, the ALJ considers a variety of evidence, including, but
not limited to, the claimant’s history, the medical signs and laboratory findings, the
claimant’s statements, medical source opinions, and other evidence of how the pain
affects the claimant’s daily activities and ability to work. Id. § 404.1529(c)(1)–(3).
Factors relevant to the ALJ’s consideration regarding a claimant’s allegations of
(1) daily activities; (2) the location, duration, frequency, and
intensity of pain and other symptoms; (3) precipitating and aggravating factors; (4)
the type, dosage, effectiveness, and side effects of medication; (5) treatment, other
than medication, the claimant receives for pain; (6) measures used for pain relief;
and (7) other factors pertaining to functional limitations and restrictions to pain.
Id. § 404.1529(c)(3)(i)–(vii).
Here, in the decision, the ALJ states that he considered Claimant’s symptoms,
the objective medical evidence and other evidence, and the medical opinions of
record. R. 20. The ALJ followed the well-known two-step process in considering
Claimant’s symptoms, as outlined above.
The ALJ concluded that, after
careful consideration of the evidence, “[C]laimant’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
- 18 -
evidence and other evidence in the record for the reasons explained in this
The ALJ then provided a thorough discussion of Claimant’s
hearing testimony, the objective medical evidence of record, Claimant’s self-reports,
and the opinions of the state agency psychiatric and medical consultants. R. 20–
The ALJ compared and contrasted the medical evidence of record with
Claimant’s subjective complaints, in concluding that she was capable of performing
light work with limitations. Id. The ALJ also stated that he specifically included
physical limitations in the RFC above and beyond those found by the state agency
consultants, due to Claimant’s subjective complaints of limitations with
manipulating and reaching.
The ALJ also found that Claimant’s
depression and anxiety were severe in order to account for Claimant’s subjective
complaints and hearing testimony, despite contrary conclusions by the state agency
psychiatric consultants. Id.
In the joint memorandum, Claimant argues that the ALJ’s determinations
regarding Claimant’s subjective complaints were “nothing more than boiler plate
type language commonly found in Social Security decisions,” and that the ALJ
failed to provide specific reasons for rejecting her testimony regarding her
subjective complaints. Doc. No. 34, at 31–32.
Upon review, the undersigned disagrees. This is not a case where the ALJ
wholesale rejected Claimant’s subjective complaints of pain; instead, the ALJ found
- 19 -
the subjective complaints only partially credible in limiting Claimant to light work,
subject to the additional limitations set forth in the RFC determination. See R. 20–
23. As demonstrated by the prior discussion, the ALJ compared and contrasted
the medical evidence and the medical opinions of record with Claimant’s subjective
complaints, in concluding that Claimant was capable of performing light work
subject to certain limitations.
And the ALJ specifically credited portions of
Claimant’s testimony and subjective complaints in fashioning the RFC. Claimant
addresses none of the ALJ’s findings in detail, however, merely stating that the
ALJ’s credibility determination was boilerplate.
See Doc. No. 34, at 30–33.
Accordingly, the Court could construe any arguments in this regard waived. Cf.
Crawford, 363 F.3d at 1161 (refusing to consider an argument that the claimant failed
to raise before the district court).
To the extent not waived, however, the Court also finds the ALJ’s discussion
sufficient to support the decision to only partially credit Claimant’s testimony and
subjective complaints of total disability. See, e.g., Markuske v. Comm’r of Soc. Sec.,
572 F. App’x 762, 766–67 (11th Cir. 2014) (finding ALJ’s discussion of objective
medical evidence of record provided “adequate reasons” for ALJ’s decision to
partially discredit the claimant’s subjective complaints of pain); Signorello v. Comm'r
of Soc. Sec., No. 6:19-cv-1470-Orl-18PDB, 2020 WL 4905401, at *5 (M.D. Fla. July 31,
2020), report and recommendation adopted, 2020 WL 4904642 (M.D. Fla. Aug. 20, 2020)
- 20 -
(“Boilerplate language is not necessarily objectionable—lawyers and judges alike
‘cut and paste’ language rather than ‘reinventing the wheel’ and saying the same
thing in different ways.
What matters is whether the ALJ went beyond the
boilerplate language, analyzed the record, and made individualized findings.”);
Heinrichs-Walters v. Astrue, No. 8:11-cv-01662-T-27AEP, 2012 WL 3893572, at *3
(M.D. Fla. Aug. 20, 2012), report and recommendation adopted, 2012 WL 3929886 (M.D.
Fla. Sept. 7, 2012) (rejecting similar argument that the ALJ’s credibility finding was
boilerplate because after such language “the ALJ engaged in a two-page, thorough
analysis of the Plaintiff’s complaints of pain in comparison with the objective
medical evidence on record” and the ALJ’s conclusions were supported by
The relevant inquiry “is not . . . whether ALJ could have reasonably credited
[the claimant’s] testimony, but whether the ALJ was clearly wrong to discredit it.”
Werner v. Comm’r of Soc. Sec., 421 F. App’x 935, 939 (11th Cir. 2011). Because the
ALJ provided adequate reasons for not fully crediting Claimant’s subjective
complaints of pain, Claimant’s third assignment of error is unavailing.
Based on the foregoing it is ORDERED that:
1. The final decision of the Commissioner is AFFIRMED.
- 21 -
2. The Clerk of Court is DIRECTED to enter judgment in favor of the
Commissioner and thereafter to CLOSE the case.
DONE and ORDERED in Orlando, Florida on September 19, 2022.
Copies furnished to:
Counsel of Record
- 22 -
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?