Patterson v. Commissioner of Social Security
OPINION AND ORDER re: Plaintiff's Complaint (Doc. 1) and the parties' Joint Memorandum (Doc. 26). For the reasons stated in the attached Order, the Commissioner's decision is affirmed. The Clerk is directed to enter final judgment for Defendant and close the case. Signed by Magistrate Judge Sean P. Flynn on 8/1/2022. (ACS)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
Case No. 8:21-cv-359-SPF
Commissioner of the Social
Security Administration, 1
Plaintiff seeks judicial review of the denial of her claim for a period of disability,
disability insurance benefits (“DIB”), and supplemental security income (“SSI”). As the
Administrative Law Judge’s (“ALJ”) decision was based on substantial evidence and
employed proper legal standards, the Commissioner’s decision is affirmed.
Plaintiff filed applications for a period of disability, DIB, and SSI (Tr. 15). The
Commissioner denied Plaintiff’s claims both initially and upon reconsideration (Tr. 14348, 151-76). Plaintiff then requested an administrative hearing (Tr. 177-78). Per Plaintiff’s
request, the ALJ held a hearing at which Plaintiff appeared and testified (Tr. 47-71).
Following the hearing, the ALJ issued an unfavorable decision finding Plaintiff not
Kilolo Kijakazi became the Acting Commissioner of Social Security on July 9, 2021, and
is substituted as Defendant in this suit pursuant to Rule 25(d) of the Federal Rules of Civil
disabled and accordingly denied Plaintiff’s claims for benefits (Tr. 12-28). Subsequently,
Plaintiff requested review from the Appeals Council, which the Appeals Council denied
(Tr. 1-6). Plaintiff then timely filed a complaint with this Court (Doc. 1). The case is now
ripe for review under 42 U.S.C. §§ 405(g), 1383(c)(3).
Factual Background and the ALJ’s Decision
Plaintiff, who was born in 1973 (Tr. 117), claimed disability beginning December
22, 2017 (Tr. 15). Plaintiff has an eleventh-grade education (Tr. 52) and past relevant
work as a security guard (Tr. 22). Plaintiff alleged disability due to a previous Killian
operation (a sinus operation); neuropathy in her hands, feet, and legs; vertigo; irritable
bowel syndrome (“IBS”); arthritis; and tendonitis (Tr. 85).
In rendering the administrative decision, the ALJ concluded that Plaintiff meets
the insured status requirements through December 31, 2023, and, despite having engaged
in substantial gainful activity during the period January 2019 through October 2019, had
not engaged in substantial gainful activity during a continuous twelve-month period
following her alleged onset date of December 22, 2017 (Tr. 17-18). After conducting a
hearing and reviewing the evidence of record, the ALJ determined Plaintiff had the
following severe impairments: diabetes mellitus with neuropathy and vertigo,
degenerative joint disease and status post-repair of the right knee, and degenerative disc
disease (Tr. 18). Notwithstanding the noted impairments, the ALJ determined Plaintiff
did not have an impairment or combination of impairments that met or medically equaled
one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (Tr. 19). The
ALJ then concluded that Plaintiff retained a residual functional capacity (“RFC”) to
perform light work as defined in 20 C.F.R.§§ 404.1567(b) and 416.967(b), with these
[She has] the ability to lift and/or carry 20 pounds occasionally and 10 pounds
frequently; sit for 6 hours; and stand and/or walk for 6 hours. She can
frequently climb ramps and stairs but can never climb ladders, ropes, or
scaffolds. She can never work at unprotected heights or around moving,
mechanical parts. She must avoid concentrated exposure to extreme cold and
working in or around vibration. She must avoid hazards in the workplace, such
as heights and heavy moving machinery.
In formulating Plaintiff’s RFC, the ALJ considered Plaintiff’s subjective
complaints and determined that, although the evidence established the presence of
underlying impairments that reasonably could be expected to produce the symptoms
alleged, Plaintiff’s statements as to the intensity, persistence, and limiting effects of her
symptoms were not entirely consistent with the medical evidence and other evidence (Tr.
Considering Plaintiff’s noted impairments and the assessment of a vocational
expert (“VE”), the ALJ determined Plaintiff could perform her past relevant work as a
security guard (Tr. 22). Accordingly, based on Plaintiff’s age, education, work experience,
RFC, and the testimony of the VE, the ALJ found Plaintiff not disabled (Id.).
To be entitled to benefits, a claimant must be disabled, meaning he or she must be
unable to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can 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. §§ 423(d)(1)(A), 1382c(a)(3)(A). A “physical or mental impairment”
is an impairment that results from anatomical, physiological, or psychological
abnormalities, which are demonstrable by medically acceptable clinical and laboratory
diagnostic techniques. 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D).
The Social Security Administration, to regularize the adjudicative process,
promulgated the detailed regulations currently in effect. These regulations establish a
“sequential evaluation process” to determine whether a claimant is disabled. 20 C.F.R.
§§ 404.1520, 416.920. If an individual is found disabled at any point in the sequential
review, further inquiry is unnecessary. 20 C.F.R. §§ 404.1520(a), 416.920(a). Under this
process, the ALJ must determine, in sequence, the following: whether the claimant is
currently engaged in substantial gainful activity; whether the claimant has a severe
impairment, i.e., one that significantly limits the ability to perform work-related functions;
whether the severe impairment meets or equals the medical criteria of 20 C.F.R. Part 404
Subpart P, Appendix 1; and whether the claimant can perform his or her past relevant
work. If the claimant cannot perform the tasks required of his or her prior work, step five
of the evaluation requires the ALJ to decide if the claimant can do other work in the
national economy in view of his or her age, education, and work experience. 20 C.F.R.
§§ 404.1520(a), 416.920(a). A claimant is entitled to benefits only if unable to perform
other work. Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987); 20 C.F.R. §§ 404.1520(g),
A determination by the Commissioner that a claimant is not disabled must be
upheld if it is supported by substantial evidence and comports with applicable legal
standards. See 42 U.S.C. §§ 405(g), 1383(c)(3). Substantial evidence is “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305
U.S. 197, 229 (1938) (internal quotation marks omitted)); Miles v. Chater, 84 F.3d 1397,
1400 (11th Cir. 1996).
While the court reviews the Commissioner’s decision with
deference to the factual findings, no such deference is given to the legal conclusions.
Keeton v. Dep’t of Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994) (citations
In reviewing the Commissioner’s decision, the court may not re-weigh the evidence
or substitute its own judgment for that of the ALJ even if it finds that the evidence
preponderates against the ALJ’s decision. Bloodsworth v. Heckler, 703 F.2d 1233, 1239
(11th Cir. 1983). The Commissioner’s failure to apply the correct law, or to give the
reviewing court sufficient reasoning for determining that he or she has conducted the
proper legal analysis, mandates reversal. Keeton, 21 F.3d at 1066. The scope of review is
thus limited to determining whether the findings of the Commissioner are supported by
substantial evidence and whether the correct legal standards were applied. 42 U.S.C. §
405(g); Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002).
Plaintiff argues the ALJ erred in assessing her complaint that she must frequently
use the restroom due to IBS.2 The Commissioner responds that substantial evidence
supports the ALJ’s consideration of Plaintiff’s subjective symptoms and limitations.
At step two, the ALJ did not list IBS as one of Plaintiff’s severe impairments (Tr. 18), a
finding Plaintiff does not challenge.
The Eleventh Circuit has crafted a pain standard to apply to claimants who
attempt to establish disability through their own testimony of subjective complaints. The
standard requires evidence of an underlying medical condition and either (1) objective
medical evidence that confirms the severity of the alleged pain arising from that condition,
or (2) that the objectively determined medical condition is of such a severity that it can
reasonably be expected to give rise to the alleged pain. See Holt v. Sullivan, 921 F.2d 1221
(11th Cir. 1991). When the ALJ decides not to credit a claimant's testimony as to his pain,
he must articulate explicit and adequate reasons. Foote v. Chater, 67 F.3d 1553, 1561-62
(11th Cir. 1995).
“Failure to articulate the reasons for discrediting subjective pain
testimony requires, as a matter of law, that the testimony be accepted as true.” Id. at 1562.
Social Security Ruling 16-3p cautions that “subjective symptom evaluation is not
an examination of an individual’s character.” Id. Adjudicators, as the regulations dictate,
are to consider all the claimant’s symptoms, including pain, and the extent to which these
symptoms can reasonably be accepted as consistent with the objective medical evidence
and other evidence in the record. Id. The regulations define “objective evidence” to
include medical signs shown by medically acceptable clinical diagnostic techniques or
laboratory findings. 20 C.F.R. §§ 404.1529, 416.929. “Other evidence,” again as the
regulations define, includes evidence from medical sources, medical history, and
statements about treatment the claimant has received. See 20 C.F.R. §§ 404.1513, 416.913.
Subjective complaint evaluations are the province of the ALJ. Mitchell v. Comm’r of Soc.
Sec., 771 F.3d 780, 782 (11th Cir. 2014).
In this matter, the ALJ relied on largely boilerplate language in assessing Plaintiff’s
subjective pain complaints:
After careful consideration of the evidence, the undersigned finds that the
claimant’s medically determinable impairments could reasonably be
expected to cause the alleged symptoms; however, the claimant’s
statements concerning the intensity, persistence and limiting effects of these
symptoms are not entirely consistent with the medical evidence and other
evidence in the record for the reasons explained in this decision. As for the
claimant’s statements about the intensity, persistence, and limiting effects
of her symptoms, they are inconsistent because they fail to comport with
the objective medical evidence of record.
(Tr. 21). This language directly addresses the Eleventh Circuit’s pain standard and is not
improper if supported by substantial evidence. See Danan v. Colvin, 8:12-cv-7-T-27TGW,
2013 WL 1694856, at * 3 (M.D. Fla. Mar. 15, 2013).
Here, Plaintiff testified:
I have IBS. . . . And that is a condition where I can’t control my bowels.
And if I’m working somewhere and I – there’s no way that I – I have to go
on a[n] instant. I don’t know when it’s going to happen. I could be fine,
and all of a sudden, you know, [I] think I have to pass gas but it’s not gas.
I have, you know, bowel movements. And at night I can’t control my bowel
movements. I have to wear Depends. And I can’t control my bowels at all,
you know, so I have accidents at night in my sleep, you know. Yes, that’s
IBS. It’s terrible.
(Tr. 55). The ALJ acknowledged Plaintiff’s testimony: “[T]he claimant testified that she
cannot control her bowels and must go instantly. However, primary care notes suggest
that she has not experienced incontinence as a result of irritable bowel syndrome. (Exhibits
9F and 12F).” (Tr. 21). The substantial evidence summarized below supports this finding.
In August 2018, Plaintiff asked nurse practitioner Joseph Ofei of Tampa Family
Health Center for a referral to a gastroenterologist for what she said was a recent onset of
IBS symptoms (Tr. 987-88). 3 She reported no abdominal pain, nausea, or constipation
(Tr. 987). Next, in January 2019, Plaintiff had a follow up with Tampa Family Health
Center nurse practitioner Taneisha Battles for medication refills (Tr. 964). Plaintiff had
gained three pounds, but “continu[ed] to have diarrhea given her IBS history.” (Tr. 968).
She had “frequent diarrhea, but reports no abdominal pain, no nausea, no vomiting, and
no constipation. . . . She reports no incontinence and no difficulty urinating.” (Id.). Her
bowel sounds were normal with no abdominal bruit (a vascular sound associated with
turbulent blood flow) (Id.). In June 2019, Donia Dobson, D.O. of Tampa Family Health
Center examined Plaintiff (Tr. 1068). Plaintiff did not complain of diarrhea. Dr. Dobson
noted Plaintiff had “no abdominal pain, no nausea, no vomiting, and no constipation.
She reports no incontinence and no difficulty urinating.” (Tr. 1072). Her assessment was
IBS without diarrhea. She referred Plaintiff to a gastroenterologist, but there is no record
of Plaintiff following up (Tr. 1072-73).
Next, on October 1, 2019, Eniola Owi, M.D. performed a consultative
examination of Plaintiff at the agency’s request (Tr. 1030-32). Dr. Owi reviewed the
treatment records from Ms. Battles and Tampa Family Health Center and wrote:
“[Plaintiff] reports she was diagnosed with IBS in 2017 by a GI specialist and placed on
Flexeril, Baclofen, and Omeprazole. [She has s]ome bottles of medication from 2017 or
later with most of [the] pills still present even though she states she is taking as prescribed.
She states medications are not helpful. She complains of abdominal rumbling, inability
Plaintiff had an appointment with Mr. Ofei the week before, on August 13, 2018 (Tr.
991). She did not mention IBS symptoms at that appointment (Id.).
to pass gas, and fecal incontinence.” (Tr. 1030). He noted Plaintiff’s “history of IBS,” but
made no specific observations or findings regarding the impairment other than to note
Plaintiff’s abdomen was “soft, nontender, nondistended, no masses palpable.” (Tr. 1031).
Plaintiff visited Ms. Battles again in February 2020 for a blood pressure check (Tr.
1050). The nurse practitioner’s treatment notes list IBS as one of Plaintiff’s “Reviewed
Problems,” with an onset date of August 2018 (Tr. 1053). Plaintiff reported no weight
loss or increased urination but complained of “IBS and having nausea and vomiting since
December.” (Tr. 1055).
She had frequent diarrhea but no abdominal pain, no
constipation, no difficulty urinating, and no incontinence (Id.). Ms. Battles noted Plaintiff
had undergone an upper GI endoscopy the previous day (Id.). 4 Finally, in June 2020, Ms.
Battles saw Plaintiff for a follow-up appointment and diabetes check. Although Plaintiff
complained of frequent diarrhea, she had gained 11 pounds since her last visit and still
had not followed up on the clinic’s referral to a gastroenterologist. (Tr. 1048-49).
According to Plaintiff, the repeated mention in her Tampa Family Health Center
treatment records of “no incontinence” means she had no urinary incontinence (Doc. 26
at 13-15). She emphasizes that the phrase “no incontinence” is always followed by “and
no difficulty urinating” (Id.; see Tr. 968, 979, 1048, 1055, 1066, 1072, 1082). Considering
that these same records include a separate sentence pertaining to her gastrointestinal
symptoms (see, e.g., Tr. 968 (“Patient reports frequent diarrhea but reports no abdominal
pain, no nausea, no vomiting, and no constipation.”)), Plaintiff makes a point. However,
Plaintiff also argues she is not completely incontinent; she just needs quick access to a
The results of this are not in the record and neither party mentions this test.
restroom to avoid accidents (Doc. 26 at 15). This is not her testimony. Instead, she
testified she cannot control her bowels and must wear Depends. She described her IBS as
“a condition to where [she] can’t control [her] bowels . . . [she] can’t control [her] bowels
at all.” (Tr. 55).
Additionally, although Plaintiff complained of frequent diarrhea to her treatment
providers, she never mentioned uncontrollable accidents. In fact, the only reference to
“fecal incontinence” in the medical evidence is Plaintiff’s comment to consultative
examiner Dr. Owi in October 2019, almost two years after her alleged onset date (Tr.
1030). During the examination, Dr. Owi observed that Plaintiff was not taking her IBS
medications as prescribed. And on three occasions treatment providers assessed Plaintiff
as suffering from IBS without diarrhea (Tr. 988, 1049, 1072). Finally, Plaintiff worked as
a part-time security guard during some of the relevant period (January 2019 through
October 2019), a fact that undermines her testimony she had uncontrollable bowel
movements and required quick access to a bathroom. Indeed, Plaintiff testified she left
her security guard job because of her blurred vision, not her IBS symptoms (Tr. 59).
Substantial evidence supports the ALJ’s finding that the medical evidence
“suggest[s] that [Plaintiff] has not experienced incontinence as a result of irritable bowel
syndrome.” (Tr. 21). The undersigned reiterates that, when reviewing an ALJ’s decision,
the Court’s job is to determine whether the administrative record contains substantial
evidence to support the ALJ’s factual findings. See 42 U.S.C. § 405(g); Biestek v. Berryhill,
139 S.Ct. 1148, 1154 (2019). “And whatever the meaning of ‘substantial’ in other
contexts, the threshold for such evidentiary sufficiency is not high.” Id. In other words,
the Court is not permitted to reweigh the evidence or substitute its own judgment for that
of the ALJ even if the Court finds the evidence preponderates against the ALJ’s decision.
See Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). On this record, the ALJ
did not err in assessing Plaintiff’s subjective complaints of irritable bowel syndrome.
Accordingly, after consideration, it is hereby
1. The decision of the Commissioner is affirmed.
2. The Clerk is directed to enter final judgment in favor of the
Defendant and close the case.
ORDERED in Tampa, Florida, on August 1, 2022.
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