Gorham v. Commissioner of Social Security
Filing
27
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 8/1/2022. (brh)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
TERRY S. GORHAM,
Plaintiff,
v.
Case No.: 8:21-cv-1783-DNF
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
OPINION AND ORDER
Plaintiff Terry S. Gorham seeks judicial review of the final decision of the
Commissioner of the Social Security Administration (“SSA”) denying his claim for
a period of disability and disability insurance benefits and 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. For the reasons
set out herein, the decision of the Commissioner is AFFIRMED pursuant to §
205(g) of the Social Security Act, 42 U.S.C. § 405(g).
I.
Social Security Act Eligibility, Standard of Review, Procedural
History, and the ALJ’s Decision
A.
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
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 his 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.
B.
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 of Soc. Sec., 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.
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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. 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 1066.
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
is
currently
engaged
in
substantial
gainful
employment.
20
C.F.R.
§ 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,
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then the ALJ must determine whether the claimant has the residual functional
capacity (“RFC”) to perform his 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).
If the claimant cannot perform his past relevant work, the ALJ must determine
at step five whether the claimant’s RFC permits him 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 he is unable
to perform these jobs. Atha, 616 F. App’x at 993.
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C.
Procedural History
On April 5, 2018, Plaintiff filed an application for a period of disability and
disability insurance benefits and for supplemental security income, alleging
disability beginning January 1, 2015. (Tr. 202, 203, 359-71). The applications were
denied initially and on reconsideration. (Tr. 202, 203, 242, 243). Plaintiff requested
a hearing and on September 3, 2020, a hearing was held before Administrative Law
Judge Kurt Ehrman (“ALJ”). (Tr. 125-69). On October 23, 2020, the ALJ entered a
decision finding Plaintiff not under a disability from January 1, 2015, through the
date of the decision. (Tr. 106-118).
Plaintiff requested review of the decision, but the Appeals Council denied
Plaintiff’s request on May 19, 2021. (Tr. 1-5). Plaintiff initiated the instant action by
Complaint (Doc. 1) filed on July 22, 2021, and the case is ripe for review. The parties
consented to proceed before a United States Magistrate Judge for all proceedings.
(Doc. 20).
D.
Summary of ALJ’s Decision
In this matter, the ALJ found Plaintiff met the insured status requirements of
the Social Security Act through September 30, 2019. (Tr. 109). At step one of the
sequential evaluation, the ALJ found that Plaintiff had not engaged in substantial
gainful activity since January 1, 2015, alleged onset date. (Tr. 109). At step two, the
ALJ found that Plaintiff had the following severe impairments: “degenerative disc
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disease, substance abuse, bipolar disorder, anxiety disorder, post traumatic stress
disorder (PTSD), and personality disorder.” (Tr. 109). 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. §§ 404.1520(d), 404.1525, 404.1526,
416.920(d), 416.925, and 416.926). (Tr. 110).
Before proceeding to step four, the ALJ found that Plaintiff had the following
RFC:
After careful consideration of the entire record, the
undersigned finds that the claimant has the residual functional
capacity to perform light work as defined in 20 [C.F.R.
§§ 404.1567(b) and 416.967(b) except the claimant can lift and
carry up to 20 pounds occasionally and up to 10 pounds
frequently; can stand and walk for up to 6 hours each, and sit
for up to 6 hours, in an 8-hour workday, with normal and
customary breaks; can never climb ropes, scaffolds, or ladders;
can occasionally climb ramps, stairs and stools, stoop, kneel,
crouch and crawl; can frequently balance; and can perform
simple, routine tasks and instructions in a work environment
with no more than occasional interaction with the public and
coworkers, in a lower-stress work environment without fast
paced and strictly enforced production quotas.
(Tr. 112).
At step four, the ALJ found Plaintiff was unable to perform any past relevant
work. (Tr. 116-17). At step five, the ALJ relied on the testimony of a vocational
expert to find that considering Plaintiff’s age (38 years old on the alleged onset date),
education (limited), work experience, and RFC, there are jobs that existed in
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significant numbers in the national economy that Plaintiff could perform. (Tr. 11718). Specifically, the ALJ found that Plaintiff could perform such occupations as:
(1) garment bagger, DOT 920.687-018,1 light, unskilled
(2) sorter, DOT 361.687-014, light, unskilled
(3) palletizer, DOT 929.687-054, light, unskilled
(Tr. 117-18). The ALJ concluded that Plaintiff had not been under a disability from
January 1, 2015, through the date of the decision. (Tr. 118).
Analysis
II.
On appeal, Plaintiff raises one issue: whether the ALJ erred in the evaluation
of medical opinions. (Doc. 22, p. 2). Specifically, Plaintiff claims that the ALJ erred
in evaluating the opinions of Dr. Koehler, Dr. Greenberg, and Dr. Bird. (Doc. 22, p.
6-17).
A.
Medical Opinions
The same legal standard applies to all of the medical sources’ opinions.2 The
regulations for disability cases filed after March 27, 2017 – such as this one –
1
DOT refers to the Dictionary of Occupational Titles.
2
At times, Plaintiff argues that the ALJ must state the particular weight of a given physician’s
opinion and the reasons for it. (Doc. 22, p. 5). Recently, the Eleventh Circuit decided that the new
regulations, specifically 20 C.F.R. § 404.1520c, apply to cases filed after March 27, 2017. See
Harner v. Soc. Sec. Admin., Comm’r, No. 21-12148, 2022 WL 2298528, at *4 (11th Cir. June 27,
2022).
Section 404.1520c falls within the express delegation to the Commissioner to
“adopt reasonable and proper rules and regulations to regulate and provide for the
nature and extent of the proofs and evidence and the method of taking and
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changed and an ALJ no longer defers or give any specific evidentiary weight to a
medical opinion. 20 C.F.R. § 404.1520c(a), 20 C.F.R. § 416.920c(a). Thus, an ALJ
no longer uses the term “treating source” and does not defer or give specific
evidentiary weight, including controlling weight, to any medical opinion or prior
administrative medical finding. Torres v. Comm’r of Soc. Sec., No. 6:19-cv-1662ORL-PDB, 2020 WL 5810273, at *2 (M.D. Fla. Sept. 30, 2020) (citing 20 C.F.R. §
404.1520c(a)).
Instead, an ALJ assesses the persuasiveness of a medical source’s opinions
given the following five factors, with the first two being the most important: (1)
supportability; (2) consistency; (3) relationship with the claimant, including the
length, frequency, and purpose of the examining and any treatment relationship; (4)
specialization; and (5) other factors, such as the source’s familiarity with other
evidence concerning the claim, that tend to support or contradict the medical
opinion. 20 C.F.R. § 404.1520c(a)-(c); 20 C.F.R. § 404.920c(a)-(c). An ALJ may
furnishing the same” for adjudicating disability claims. See 42 U.S.C. § 405(a). And
although the Act instructs administrative law judges to “make every reasonable
effort to obtain from the individual’s treating physician ... all medical evidence ...
necessary” to make a proper disability determination, 42 U.S.C. § 423(d)(5)(B), the
Act does not specify how this evidence is to be weighed. Because section 404.152c
falls within the express delegation and is not “manifestly contrary to the statute,”
see Chevron, 467 U.S. at 844, 104 S. Ct. 2778, the regulation did not “exceed the
[Commissioner’s] statutory authority.” See Heckler, 461 U.S. at 466, 103 S. Ct.
1952.
Id. at *3. Thus, the Court will consider the medical source opinion under the rubric of the new
regulations.
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but is not required to explain how he considers factors other than supportability and
consistency, unless two or more opinions are equally persuasive on the same issue.
20 C.F.R. § 404.1520c(b)(2); 20 C.F.R. § 416.920c(b)(2).
For supportability, the revised rules provide: “The more relevant the objective
medical evidence and supporting explanations presented by a medical source are to
support his or her medical opinion(s) or prior administrative medical finding(s), the
more persuasive the medical opinions or prior administrative medical finding(s) will
be.” 20 C.F.R. § 404.1520c(c)(1); 20 C.F.R. § 416.920c(c)(1). For consistency, the
revised rules provide: “The more consistent a medical opinion(s) or prior
administrative medical finding(s) is with the evidence from other medical sources
and nonmedical sources in the claim, the more persuasive the medical opinion(s) or
prior administrative medical finding(s) will be.” 20 C.F.R. § 404.1520c(c)(2); 20
C.F.R. § 416.920c(c)(2).
The new regulations also differentiate between medical opinions and “other
medical evidence.” 20 C.F.R. § 404.1513(a)(2)-(3). “A medical opinion is a
statement from a medical source about what you can still do despite your
impairment(s) and whether you have one or more impairment-related limitations or
restrictions” in the abilities listed in paragraphs (a)(2)(i) through (iv). 20 C.F.R.
§ 404.1513(a)(2). “Other medical evidence is evidence from a medical source that
is not objective medical evidence or a medical opinion, including judgments about
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the nature and severity of your impairments, your medical history, clinical findings,
diagnosis, treatment prescribed with response, or prognosis.” 20 C.F.R.
§ 404.1513(a)(3).
B.
Nicholas Koehler, M.D.’s Opinion
On August 13, 2020, Dr. Koehler evaluated Plaintiff. (Tr. 924-28). The ALJ
summarized Dr. Koehler’s evaluation:
In the report from his examination, Dr. Koehler noted that his
examination of the claimant showed decreased strength in his
left foot, and his left shoulder/biceps/triceps, decreased range
of motion in his left shoulder, tenderness in lumbar spine, and
pain on flexion, extension, and toe pivoting in left knee. Dr.
Koehler opined that the claimant’s injuries and medical
diagnoses impair his ability to have meaningful gainful
employment. In a separate medical source statement, Dr.
Koehler opined that the claimant can lift and carry 15 pounds
occasionally and 10 pounds frequently, stand and walk for up
to 2 hours, and sit for up to 4 hours in an 8[-]hour workday,
and had additional postural, manipulative, and environmental
restrictions (Exhibit 21F).
(Tr. 115).
The ALJ found Dr. Koehler’s opinion unpersuasive because it was
inconsistent with the opinions of Dr. Bird and Dr. Legrande and “purport[ed] to limit
the claimant to extreme levels that are not consistent with the overall medical
evidence or in the case of Dr. Bird and Dr. Legrande, their own treatment notes.”
(Tr. 115). The ALJ did not stop there. He then observed that Dr. Bird reported
Plaintiff walked with a completely normal gait, with no evidence of painful
movement both before and after the date he entered his opinion, but then Dr. Bird
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opined extreme limitations for Plaintiff. (Tr. 115). 3 And Dr. Legrande reported in
an August 2018 examination no abnormality in the cervical and lumbar spine, full
range of motion, and negative straight leg testing, but opined Plaintiff had extreme
limitations in a September 2018 opinion. (Tr. 115). The ALJ also noted that Dr.
Koehler only met Plaintiff one time and determined that Dr. Koehler found
limitations out of proportion to all of the objective evidence. (Tr. 115-16).
While the ALJ correctly noted that Plaintiff saw Dr. Koehler only one time,
Plaintiff claims that this reason has no merit. (Doc. 22, p. 7). Plaintiff argues that the
ALJ found State agency medical consultant, Thomas Bixler, M.D.’s opinion
persuasive, but Dr. Bixler never met Plaintiff in person. (Doc. 22, p. 7; Tr. 115). This
argument is unavailing. The regulations specifically provide that an ALJ may
consider the relationship with Plaintiff, including the length, frequency, and purpose
of the examining and any treatment relationship. See 20 C.F.R. § 404.1520c(a)-(c);
20 C.F.R. § 404.920c(a)-(c).
Plaintiff also argues that the ALJ’s finding that Dr. Koehler’s opinion was
inconsistent with Dr. Bird’s and Dr Legrande’s opinions, which the ALJ also found
unpersuasive, is not a valid reason to find Dr. Koehler’s opinion unpersuasive. (Doc.
22, p. 8). This argument also lacks merit. Just because Dr. Koehler’s opinion was
3
The Court recognizes that Plaintiff also argues the ALJ erred in evaluating Dr. Bird’s opinion.
The Court will address those arguments later.
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inconsistent with other medical sources’ opinion, whose opinions the ALJ found
unpersuasive, does not render Dr. Koehler’s opinion persuasive.4
Plaintiff then argues that the ALJ never explained his reasoning that Dr.
Koehler’s opinion was “out of proportion to all of the objective of the objective
evidence” and “not consistent with the overall medical evidence.” (Doc. 22, p. 8-9).
Plaintiff proceeded to summarize the objective medical evidence that Dr. Koehler
reviewed and summarized his neurologic examination. (Doc. 22, p. 8-10).
In the decision, the ALJ included an explanation and reasons to support his
statements as to Dr. Koehler’s opinion. He noted that Dr. Bird found Plaintiff
“walked with a completely normal gait, with no evidence of painful movement in
the reports from the claimant’s monthly visits immediately before and after the date
he rendered his opinion,” and similarly Dr. Legrande reported that in August 2018
examination, Plaintiff “revealed no abnormality in the cervical or lumbar spine, full
range of motion, and negative straight leg testing.” (Tr. 115). As the ALJ explained,
these findings are inconsistent with Dr. Koehler’s opinion that Plaintiff limitations
impair his ability to have meaningful gainful employment and are inconsistent with
Dr. Koehler’s opinion that Plaintiff stand and walk for up to 2 hours, and sit for up
to 4 hours in an 8-hour workday.
4
Plaintiff raises the same argument as to Dr. Bird’s opinion. (Doc. 22, p. 15). For the same reasons,
the Court finds this argument lacks merit as it applies to Dr. Bird’s opinion.
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The ALJ provided valid reasons to find Dr. Koehler’s opinion unpersuasive
and these reasons are supported by substantial evidence.
C.
Michael S. Greenberg, Ph.D.’s Opinion
Plaintiff argues that the ALJ erred in not adopting Dr. Greenberg’s opinion
that Plaintiff was severely limited in his ability to cope with stress and co-workers.
(Doc. 22, p. 12-13). The State agency Office of Disability Determinations referred
Plaintiff to Dr. Greenberg, who saw Plaintiff on December 22, 2016 for an
evaluation. (Tr. 629-32).
In the decision, the ALJ summarized Dr. Greenberg’s evaluation, finding –
among other things – that Plaintiff’s ability to cope with stress and co-workers was
severely impaired. (Tr. 114). The ALJ then contrasted this report with Dr. Bird’s
reports from Plaintiff’s monthly visits to him. (Tr. 114). In Dr. Bird’s reports from
October 2014 to May 2018, he found no symptoms of any mental disorder and
Plaintiff presented with a normal mood and affect. (Tr. 114). The ALJ later
concluded that “[t]he opinion of Dr. Greenberg that the symptoms from the
claimant’s mental impairments severely limit his ability to cope with stress and
coworkers is persuasive to the extent that it is consistent with the moderate
limitations found above (Exhibit 5F).” (Tr. 116). The ALJ then included in the RFC,
some limitations related to Plaintiff’s ability to deal with stress and coworkers, such
as “can perform simple, routine tasks and instructions in a work environment with
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no more than occasional interaction with the public and coworkers, in a lower-stress
work environment without fast paced and strictly enforced production quotas.” (Tr.
112). The ALJ explained why he included moderate limitations as to work stress and
interactions with co-workers but did not adopt in full Dr. Greenberg’s limitations as
to both. These reasons are supported by substantial evidence and the Court finds no
error.
D.
Zachary Bird, M.D.’s Opinion
Dr. Bird treated Plaintiff for pain management from early 2014 through most
of 2018. (Tr. 530-628, 634-656, 705-771). The ALJ summarized Dr. Bird’s records
noting MRI studies and the results from them. (Tr. 113). The ALJ paid particular
attention to the most recent report from April 17, 2018. (Tr. 113). The ALJ noted
that in this treatment note:
Dr. Bird reported his examination of the claimant objectively
showed that the claimant’s spine was normal to inspection with
no scoliosis or other deformities, no cervical tenderness or
spasm, no palpable abnormalities, lumbar range of motion was
70 flexion, and 20 extension, lordosis was normal, tenderness
to pressure in the low back without spasm, negative Patrick’s
test, positive sitting straight leg test, intact reflexes, and a
limited positive Spurling’s test on the right (Exhibit 11F).
Although the objective observations were similarly benign and
mild in the reports from the claimant’s follow up visits in
January and March 2018 (Exhibit 9F), Dr. Bird completed a
medical source statement on February 20, 2018 in which he
opined that the claimant was limited to lifting a maximum of 8
pounds for one third of a workday; standing and walking for 1
hour, and sitting for 1 hour in an 8 hour workday; along with
additional postural, manipulative, and environmental
restrictions (Exhibits 17F and 23F).
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(Tr. 113-14).
The ALJ found Dr. Bird’s opinion unpersuasive for some of the same reasons
he found Dr. Koehler’s opinion unpersuasive. (Tr. 115). The ALJ found Dr. Bird’s
opinions inconsistent with Dr. Legrande’s and Dr. Koehler’s opinions that “purport
to limit the claimant to extreme levels that are not consistent with the overall medical
evidence, or in the case of Dr. Bird and Dr. Legrande, their own treatment notes.”
(Tr. 115). Specifically as to Dr. Bird, the ALJ found,
Dr. Bird reported that the claimant walked with a completely
normal gait, with no evidence of painful movement in the
reports from the claimant’s monthly visits immediately before
and after the date he rendered his opinion, but then opined that
the claimant could only stand and walk for 1 hour in an 8[-]
hour workday (Exhibits 9F, 17F, and 18F).
(Tr. 115).
Plaintiff argues that Dr. Bird “never mentioned gait, and therefore, never
reported gait, in his records” and offered no evidence of lack of painful movement.
(Doc. 22, p. 16). Plaintiff then argues that the ALJ’s assertion that Dr. Bird reported
a normal gait and no evidence of painful movement cannot be sustained by the record
“because it never happened.” (Doc. 22, p. 16). Plaintiff cites many pages in support
of this argument. Plaintiff is incorrect. Dr. Bird reported many times that Plaintiff’s
gait was normal with no evidence of painful movement. (See e.g., Tr. 543, 557, 561,
564, 570, 574, 583, 589, 597, 600, 603, 607, 621, 624). Further, as the ALJ noted,
Dr. Bird’s treatment notes before and after his opinion showed a normal gait with no
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evidence of painful movement, normal range of motion, and full strength in the upper
and lower extremities. (Tr. 113-114, 744, 748, 751). Substantial evidence supports
the ALJ’s decision to find Dr. Bird’s opinions unpersuasive.
As with all of the medical opinions at issue, the Court may not decide the facts
anew, reweigh the evidence, or substitute its judgment for that of the Commissioner.
Mitchell v. Comm’r, Soc. Sec. Admin., 771 F.3d 780, 782 (11th Cir. 2014). While
Plaintiff cites some evidence that may support finding any or all of these opinions
persuasive, Plaintiff must do more than point to evidence in the record that supports
his allegations. Sims v. Comm’r of Soc. Sec., 706 F. App’x 595, 604 (11th Cir. 2017).
He must show the absence of substantial evidence supporting the ALJ’s conclusion.
Id. Here, when applying the correct legal standard, the ALJ listed many reasons to
support his decision in finding each of these medical sources’ opinions unpersuasive
or partially persuasive. These reasons constitute substantial evidence in support of
the ALJ’s determination. Thus, the Court finds no error.
III.
Conclusion
For the reasons discussed above, the Court finds that the decision of the
Commissioner is supported by substantial evidence and the Commissioner applied
the correct legal standard. The decision of the Commissioner is AFFIRMED. The
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Clerk of Court is directed to enter judgment consistent with this opinion, terminate
all deadlines, and close the case.
DONE and ORDERED in Fort Myers, Florida on August 1, 2022.
Copies furnished to:
Counsel of Record
Unrepresented Parties
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