Cameron v. Saul, Commissioner of Social Security

Filing 28

OPINION AND ORDER affirming the Commissioner's final decision; Clerk to enter judgment accordingly and close the file. Signed by Magistrate Judge James Klindt on 9/19/2022. (KAW)

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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
KEVIN MICHAEL CAMERON,
Plaintiff,
v.

Case No. 8:21-cv-1299-JRK

KILOLO KIJAKAZI, Acting
Commissioner of Social Security,
Defendant.

/

OPINION AND ORDER 1
I.

Status

Kevin Michael Cameron (“Plaintiff”) is appealing the Commissioner of the
Social Security Administration’s (“SSA(’s)”) final decision denying his claims for
disability insurance benefits (“DIB”) and supplemental security income (“SSI”).
Plaintiff’s alleged inability to work is the result of bipolar disorder, depression,
attention

deficit/hyperactivity

disorder

(“ADHD”),

chronic

back

pain,

degenerative disc disease, injured vertebrae, chronic bronchitis, a chronic
cough, and a learning disability. Transcript of Administrative Proceedings (Doc.

The parties consented to the exercise of jurisdiction by a United States
Magistrate Judge. See Notice, Consent, and Reference of a Civil Action to a Magistrate Judge
(Doc. No. 13), filed October 19, 2021; Reference Order (Doc. No. 15), entered October 19, 2021.
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No. 14; “Tr.” or “administrative transcript”), filed October 19, 2021, at 86, 98,
110, 123, 338.
On January 18, 2017, Plaintiff protectively filed an application for DIB,
and on February 8, 2017, Plaintiff protectively filed an application for SSI. Tr.
at 313-14 (DIB), 307-12 (SSI). 2 In both applications, Plaintiff alleged a
disability onset date of August 2, 2016. Tr. at 313 (DIB), 307 (SSI). The
applications were denied initially, Tr. at 83, 85-96, 163, 164-66 (DIB); Tr. at 84,
97-108, 167-69, 170 (SSI), and upon reconsideration, Tr. at 109-21, 135, 173,
174-78 (DIB); Tr. at 122-34, 136, 179, 180-84 (SSI).
On November 29, 2018, an Administrative Law Judge (“ALJ”) held a
hearing, during which he heard from Plaintiff, who was represented by counsel,
and a vocational expert (“VE”). See Tr. at 58-82 (hearing transcript); Tr. at 160,
162, 171, 172, 185, 186 (appointment of representative documents). At the time
of the hearing, Plaintiff was forty-nine (49) years old. Tr. at 63 (stating
Plaintiff’s date of birth). On January 11, 2019, the ALJ issued a Decision finding
Plaintiff not disabled through the date of the Decision. See Tr. at 140-48.

The DIB application was actually completed on January 19, 2017, and the SSI
application was completed on February 11, 2017. Tr. at 313 (DIB), 307 (SSI). The protective
filing date for the DIB application is listed in the administrative transcript as January 18,
2017. Tr. at 86, 110. The protective filing date for the SSI application is listed as February 8,
2017. Tr. at 98, 123.
2

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Thereafter, Plaintiff sought review of the ALJ’s decision. Tr. at 244-45.
On January 8, 2020, the Appeals Council granted Plaintiff’s request for review
and remanded the matter to the ALJ with instructions. Tr. at 154-57. On
remand, the ALJ held another hearing on October 14, 2020, during which
Plaintiff (still represented by counsel) and a VE testified via telephone. 3 Tr. at
34-57. At this hearing, Plaintiff was fifty-one (51) years old. Tr. at 41 (stating
Plaintiff’s date of birth). On December 7, 2020, the ALJ issued a new Decision
again finding Plaintiff not disabled through the date of the Decision. Tr. at 1527.
Thereafter, Plaintiff requested review of the Decision by the Appeals
Council. Tr. at 4-5 (Appeals Council exhibit list and order), 304-06 (request for
review). On March 23, 2021, the Appeals Council denied Plaintiff’s request for
review, Tr. at 1-3, making the ALJ’s Decision the final decision of the
Commissioner. On May 27, 2021, Plaintiff commenced this action under 42
U.S.C. §§ 405(g) and 1383(c)(3) by timely filing a Complaint (Doc. No. 1) seeking
judicial review of the Commissioner’s final decision.
On appeal, Plaintiff argues “the ALJ failed to properly assess [Plaintiff’s]
symptoms.” Plaintiff’s Memorandum of Law in Support of Allegations of the
Complaint (Doc. No. 26; “Pl.’s Mem.”), filed March 15, 2022, at 4 (emphasis and

The hearing was held via telephone with Plaintiff’s consent because of
extraordinary circumstances presented by the COVID-19 pandemic. Tr. at 36-37, 302.
3

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some capitalization omitted). On May 4, 2022, Defendant filed a Memorandum
in Support of the Commissioner’s Decision (Doc. No. 27; “Def.’s Mem.”)
responding to Plaintiff’s argument. After a thorough review of the entire record
and consideration of the parties’ arguments, the undersigned finds that the
Commissioner’s final decision is due to be affirmed.
II.

The ALJ’s Decision

When determining whether an individual is disabled, 4 an ALJ must
follow the five-step sequential inquiry set forth in the Regulations, determining
as appropriate whether the claimant (1) is currently employed or engaging in
substantial gainful activity; (2) has a severe impairment; (3) has an impairment
or combination of impairments that meets or medically equals one listed in the
Regulations; (4) can perform past relevant work; and (5) retains the ability to
perform any work in the national economy. 20 C.F.R. §§ 404.1520, 416.920; see
also Simon v. Comm’r, Soc. Sec. Admin., 7 F.4th 1094, 1101-02 (11th Cir. 2021)
(citations omitted); Phillips v. Barnhart, 357 F.3d 1232, 1237 (11th Cir. 2004).
The claimant bears the burden of persuasion through step four, and at step five,
the burden shifts to the Commissioner. Bowen v. Yuckert, 482 U.S. 137, 146 n.5
(1987).
“Disability” is defined in the Social Security Act as the “inability 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 12 months.” 42 U.S.C. §§ 423(d)(1)(A),
1382c(a)(3)(A).
4

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Here, the ALJ followed the five-step inquiry. See Tr. at 18-27. At step one,
the ALJ determined that Plaintiff “has not engaged in substantial gainful
activity since August 2, 2016, the alleged onset date.” Tr. at 18 (emphasis and
citation omitted). At step two, the ALJ found that Plaintiff “has the following
severe impairments: degenerative disc disease, arthropathies, bronchitis,
coronary arteriosclerosis, hyperlipidemia, and hepatitis C.” Tr. at 18 (emphasis
and citation omitted). At step three, the ALJ found that Plaintiff “does not have
an impairment or combination of impairments that meets or medically equals
the severity of one of the listed impairments in 20 [C.F.R.] Part 404, Subpart P,
Appendix 1.” Tr. at 21 (emphasis and citation omitted).
The ALJ determined that Plaintiff has the following residual functional
capacity (“RFC”):
[Plaintiff can] perform sedentary work as defined in 20 [C.F.R.
§§] 404.1567(a) and 416.967(a) except [Plaintiff] can lift and carry
up to 10 pounds; can stand and walk for up to 2 hours each, and sit
for up to 6 hours per 8 hour workday; must never climb ladders,
ropes, or scaffolds; can occasionally climb ramps and stairs,
balance, stoop, kneel, crouch, and crawl; and must avoid vibration,
temperature extremes, pulmonary irritants, hazardous machinery,
and heights.
Tr. at 21-22 (emphasis omitted).
At step four, the ALJ relied on the VE’s hearing testimony and found that
Plaintiff “is capable of performing past relevant work” as a “telemarketer.” Tr.
at 25 (some emphasis and citation omitted). The ALJ then made alternative

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findings at the fifth and final step of the sequential inquiry. Tr. at 26-27. After
considering Plaintiff’s age (“47 years old . . . on the alleged disability onset
date”), education (“at least a high school education”), work experience, and RFC,
the ALJ relied on the VE’s testimony and found that “there are other jobs that
exist in significant numbers in the national economy that [Plaintiff] also can
perform,” such as “Order clerk,” “Charge account clerk,” and “Final assembler.”
Tr. at 26-27 (some emphasis omitted). The ALJ concluded Plaintiff “has not
been under a disability . . . from August 2, 2016, through the date of th[e
D]ecision.” Tr. at 27 (emphasis and citation omitted).
III.

Standard of Review

This Court reviews the Commissioner’s final decision as to disability
pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). Although no deference is given
to the ALJ’s conclusions of law, findings of fact “are conclusive if . . . supported
by ‘substantial evidence.’” Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir.
2001) (citing Falge v. Apfel, 150 F.3d 1320, 1322 (11th Cir. 1998)). “Substantial
evidence is something ‘more than a mere scintilla, but less than a
preponderance.’” Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005)
(quoting Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987)). The substantial
evidence standard is met when there is “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Falge, 150 F.3d at 1322
(quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)); see also Biestek v.
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Berryhill, 139 S. Ct. 1148, 1154 (2019); Samuels v. Acting Comm’r of Soc. Sec.,
959 F.3d 1042, 1045 (11th Cir. 2020) (citation omitted). It is not for this Court
to reweigh the evidence; rather, the entire record is reviewed to determine
whether “the decision reached is reasonable and supported by substantial
evidence.” Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991) (citation
omitted). The decision reached by the Commissioner must be affirmed if it is
supported by substantial evidence—even if the evidence preponderates against
the Commissioner’s findings. Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155,
1158-59 (11th Cir. 2004) (per curiam).
IV.

Discussion

Plaintiff contends the ALJ erred in evaluating his subjective symptoms
and complaints of pain because “the ALJ failed to examine many of the [relevant
factors] and, instead, he focused primarily, if not exclusively, on the objective
medical evidence, concluding that such evidence did not establish that
[Plaintiff’s] impairments were of a disabling nature.” Pl.’s Mem. at 8 (citing Tr.
at 22-25). Responding, Defendant argues “substantial evidence supports the
[ALJ’s] evaluation of Plaintiff’s subjective complaints of disabling pain and
other symptoms.” Def.’s Mem. at 4 (emphasis and some capitalization omitted).
“[T]o establish a disability based on testimony of pain and other
symptoms, the claimant must satisfy two parts of a three-part showing:
(1) evidence of an underlying medical condition; and (2) either (a) objective
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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)
(citing Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991)). “The claimant’s
subjective testimony supported by medical evidence that satisfies the standard
is itself sufficient to support a finding of disability.” Holt, 921 F.2d at 1223.
“In evaluating the intensity and persistence of a claimant’s symptoms,
the ALJ considers the entire record, including the objective medical evidence,
the claimant’s history, and statements of the claimant and [his or] her doctors.”
Belser v. Soc. Sec. Admin., Comm’r, No. 20-12121, 2021 WL 6116639, at *6 (11th
Cir. Dec. 27, 2021) (unpublished) (citing 20 C.F.R. §§ 404.1529(c)(1)-(2)). The
Regulations in effect at the time of the ALJ’s Decision provided that an ALJ
“will” also consider other factors related to symptoms such as pain, including:
(i) [The claimant’s] daily activities; (ii) The location,
duration, frequency, and intensity of [the claimant’s]
pain or other symptoms; (iii) Precipitating and
aggravating factors;
(iv) The
type,
dosage,
effectiveness, and side effects of any medication [the
claimant] take[s] or ha[s] taken to alleviate [his or her]
pain or other symptoms; (v) Treatment, other than
medication, [the claimant] receive[s] or ha[s] received
for relief of [his or her] pain or other symptoms; (vi) Any
measures [the claimant] use[s] or ha[s] used to relieve
[his or her] pain or other symptoms . . .; and (vii) Other
factors concerning
[the claimant’s]
functional
limitations and restrictions due to pain or other
symptoms.

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20 C.F.R. § 404.1529(c)(3)(i)-(vii). To reject the claimant’s assertions of
subjective symptoms, “explicit and adequate reasons” must be articulated by
the ALJ. Wilson, 284 F.3d at 1225; see also Dyer, 395 F.3d at 1210; Marbury v.
Sullivan, 957 F.2d 837, 839 (11th Cir. 1992). 5
Here, the ALJ initially recognized Plaintiff’s assertions of how his pain
and other impairments affect him, including allegations of “severe chronic lower
back pain that radiated to his left leg [and] limited his ability to complete
personal care and household chores, and the length of time that he could sit,
stand, and walk.” Tr. at 22 (citing Exs. 5E and 8E, located at Tr. at 366-68, 38082). The ALJ also recognized complaints of depression, as well as limitations in
“lifting, squatting, bending, standing, walking, sitting, kneeling, stair climbing,
memory,

completing

tasks,

concentration,

understanding,

following

instructions, and getting along with others.” Tr. at 22 (citing Ex. 4E, located at
Tr. at 356-63). The ALJ summarized Plaintiff’s hearing testimony that “his

In 2017, the SSA issued new guidance to ALJs about how to evaluate subjective
complaints of pain and other symptoms. The SSA has “eliminat[ed] the use of the term
‘credibility’ from [its] sub-regulatory policy, as [the R]egulations do not use this term.” SSR
16-3P, 2017 WL 5180304, at *2 (Oct. 25, 2017). “In doing so, [the SSA has] clarif[ied] that
subjective symptom evaluation is not an examination of an individual’s character.” Id.
Accordingly, ALJs are “instruct[ed] . . . to consider all of the evidence in an individual’s record
when they evaluate the intensity and persistence of symptoms after they find that the
individual has a medically determinable impairment(s) that could reasonably be expected to
produce those symptoms.” Id. “The change in wording is meant to clarify that [ALJs] aren’t in
the business of impeaching claimants’ character; obviously [ALJs] will continue to assess the
credibility of pain assertions by applicants, especially as such assertions often cannot be either
credited or rejected on the basis of medical evidence.” Cole v. Colvin, 831 F.3d 411, 412 (7th
Cir. 2016) (emphasis in original).
5

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severe back pain interfered with his everyday activities, and that he could not
sit, stand or walk for any significant period of time because of the pain.” Tr. at
22; see Tr. at 40-52, 62-77 (hearing testimony). The ALJ also recognized
Plaintiff’s assertion that, due to a spine surgery that had occurred just prior to
the last hearing, he “has had difficulty with foot drop.” Tr. at 22.
The ALJ then found that Plaintiff’s “medically determinable impairments
could reasonably be expected to cause the alleged symptoms; however,
[Plaintiff’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 th[e D]ecision.”
Tr. at 22.
The ALJ next discussed the medical evidence. Tr. at 23-25. Particularly
noteworthy are the ALJ’s observations that there were no complications from
the February 2019 spinal surgery, and at an October 2019 follow up visit,
Plaintiff “reported that he was free of pain, and a musculoskeletal examination
revealed that [Plaintiff] had full range of motion and full strength in all
extremities.” Tr. at 24 (citing Ex. 30F/28, located at Tr. at 956); see also Tr. at
959 (strength and range of motion findings). The ALJ also observed that at a
follow up visit with a cardiologist on March 2, 2020, Plaintiff did not report any
musculoskeletal pain, muscle aches, or weakness with a two-mile bicycle ride.
Tr. at 24; see Tr. at 850. The ALJ wrote that the cardiologist did not find any
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joint tenderness or swelling, and determined Plaintiff had a normal gait with
normal strength and tone. Tr. at 24; see Tr. at 851. The ALJ finally found that
the cardiologist had noted Plaintiff “felt better after his laminectomy and
fusion.” Tr. at 24; see Tr. at 849.
The ALJ recognized that at a September 2020 visit to the Health
Department, Plaintiff did report “swelling in his legs that had begun three
weeks earlier.” Tr. at 25; see Tr. at 935. The ALJ observed that Plaintiff was
“provided [with] compression stockings” for the swelling. Tr. at 25; see Tr. at
935 (noting that Plaintiff was “advised . . .to wear compression stockings and
elevate legs as much as possible”).
At the end of the day, the ALJ found Plaintiff has “greater sustained
capacity than alleged.” Tr. at 25. Plaintiff does not specifically challenge any of
the forgoing subjective complaint findings; instead, Plaintiff contends that “the
ALJ failed to heed SSR 16-3p’s cautionary instruction not to discount a
[Plaintiff’s] statements regarding the intensity, persistence, and limiting effects
of symptoms solely because the objective medical evidence does not substantiate
the degree of impairment-related symptoms.” Pl.’s Mem. at 8. But the ALJ did
not discount Plaintiff’s statements solely because the medical evidence did not
substantiate them: the ALJ reviewed the record as a whole and determined that
Plaintiff is not as limited as he alleges. The ALJ adequately considered

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Plaintiff’s subjective complaints, and the ALJ’s findings are supported by
substantial evidence.
V.

Conclusion

After a thorough review of the entire record, the undersigned finds that
the ALJ’s Decision is supported by substantial evidence. Based on the foregoing,
it is
ORDERED:
1.

The Clerk of Court is directed to enter judgment pursuant to

sentence four of 42 U.S.C. § 405(g), as well as § 1383(c)(3), AFFIRMING the
Commissioner’s final decision.
2.

The Clerk is further directed to close the file.

DONE AND ORDERED in Jacksonville, Florida on September 19, 2022.

kaw
Copies:
Counsel of Record

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