Pantella v. Commissioner of Social Security

Filing 23

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 3/27/2024. (KAW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
CRISTINA PANTELLA,
Plaintiff,
v.

Case No. 8:22-cv-2883-JRK

MARTIN J. O’MALLEY,
1
Commissioner of Social Security,
Defendant.
OPINION AND ORDER 2
I.

Status

Cristina Pantella (“Plaintiff”) is appealing the Commissioner of the Social
Security Administration’s (“SSA(’s)”) final decision denying her claim for
disability insurance benefits (“DIB”). Plaintiff’s alleged inability to work is the
result of bulging discs and pain in her spine, fibromyalgia, arthritis of the knees
and spine, high blood pressure, asthma, depression, and anxiety. Transcript of
Administrative Proceedings (Doc. No. 6; “Tr.” or “administrative transcript”),

1

Mr. O’Malley was sworn in as Commissioner of the Social Security
Administration on December 20, 2023. Pursuant to Rule 25(d)(1), Federal Rules of Civil
Procedure, Mr. O’Malley should be substituted for Kilolo Kijakazi as Defendant in this suit.
No further action need be taken to continue this suit by reason of the last sentence of section
205(g) of the Social Security Act, 42 U.S.C. ' 405(g).
2
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. 7), filed February 16, 2023; Reference Order (Doc. No. 9), entered February 24, 2023.

filed February 16, 2023, at 65-66, 88, 267. Plaintiff protectively filed an
application for DIB on January 24, 2020, alleging a disability onset date of
November 11, 2018. 3 Tr. at 234-25. The application was denied initially, Tr. at
65-82, 83, 84, 86, 120-26, and upon reconsideration, Tr. at 87-110, 111, 112, 114,
128-40. 4
On November 23, 2021, an Administrative Law Judge (“ALJ”) held a
hearing,

5

during which she heard testimony from Plaintiff, who was

represented by counsel, and a vocational expert (“VE”). See Tr. at 40-64. At the
time of the hearing, Plaintiff was forty-six (46) years old. Tr. at 45. On February
10, 2022, the ALJ issued a Decision finding Plaintiff not disabled through the
date of the Decision. See Tr. at 22-34.
Thereafter, Plaintiff sought review of the Decision by the Appeals Council
and submitted a brief authored by her counsel. See Tr. at 11-12 (Appeals
Council exhibit list and order), 220-22 (request for review), 347-48 (brief). On
October 21, 2022, the Appeals Council denied Plaintiff’s request for review, Tr.
at 8-10, thereby making the ALJ’s Decision the final decision of the

3

Although actually completed on January 27, 2020, see Tr. at 234, the protective
filing date for the DIB application is listed elsewhere in the administrative transcript as
January 24, 2020, see, e.g., Tr. at 65, 88.
4

5

Some of these cited documents are duplicates.

The hearing was held via telephone with Plaintiff’s consent because of
extraordinary circumstances caused by the early stages of the COVID-19 pandemic. Tr. at 4243, 144-57, 204, 206, 218-19.
-2-

Commissioner. On December 19, 2022, Plaintiff commenced this action under
42 U.S.C. § 405(g) by timely filing a Complaint (Doc. No. 1), seeking judicial
review of the Commissioner’s final decision.
On appeal, Plaintiff contends the ALJ: 1) “failed to properly consider the
persuasiveness of [Thomas C.] Tolli[, M.D.]’s opinion”; 2) “failed to properly
consider [Plaintiff’s] subjective complaints”; and 3) “failed to properly consider
[Plaintiff’s] mental limitations and her symptoms stemming from fibromyalgia
in combination.” Memorandum in Opposition to the Commissioner’s Decision
(Doc. No. 18; “Pl.’s Mem.”), filed July 20, 2023, at 3, 15, 20 (emphasis and
capitalization

omitted).

On

September

18,

2023,

Defendant

filed

a

Memorandum in Support of the Commissioner’s Decision (Doc. No. 21; “Def.’s
Mem.”) addressing the issues. After a thorough review of the entire record and
consideration of the parties’ respective 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, 6 an ALJ must
follow the five-step sequential inquiry set forth in the Code of Federal

6

“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).
-3-

Regulations (“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; 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).
Here, the ALJ followed the five-step inquiry. See Tr. at 24-33. At step one,
the ALJ determined that Plaintiff “has not engaged in substantial gainful
activity since November 11, 2018, the alleged onset date.” Tr. at 24 (emphasis
and citation omitted). At step two, the ALJ found that Plaintiff “has the
following severe impairments: fibromyalgia; degenerative disc disease; bilateral
knee degenerative joint disease; and asthma.” Tr. at 24 (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 26 (emphasis and citation omitted).

-4-

The ALJ determined that Plaintiff has the following residual functional
capacity (“RFC”):
[Plaintiff can] perform sedentary work as defined in 20
CFR [§] 404.1567(a), except [Plaintiff] can occasionally
push and pull with the bilateral lower extremities.
[Plaintiff] can occasionally perform postural activity
but never climb ladders, ropes, or scaffolds and never
crouch. [Plaintiff] can frequently handle and finger
bilaterally. [Plaintiff] cannot have more than
occasional exposure to extreme cold, atmospheric
irritants such as dust, odors, fumes, and gasses and
workplace hazards such as unprotected heights and
moving machinery.
Tr. at 27-28 (emphasis omitted).
At step four, the ALJ found that Plaintiff “is capable of performing past
relevant work as a Customer Service Representative.” Tr. at 32 (emphasis and
citation omitted). The ALJ then made alterative findings at the fifth and final
step of the sequential inquiry. Tr. at 32-33. After considering Plaintiff’s age (“43
years old, which is defined as a younger individual age 18-44, on the alleged
disability onset date” but “subsequently changed age category to a younger
individual age 45-49”), education (“at least a high school education”), work
experience, and RFC, the ALJ relied on the VE’s testimony and found that
“there are jobs that exist in significant numbers in the national economy that
[Plaintiff] can perform,” Tr. at 32 (some emphasis and citations omitted), such
as “Lens Inserter,” “Document Scanner,” and “Final Assembler,” Tr. at 33
(emphasis and some capitalization omitted). The ALJ concluded Plaintiff “has
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not been under a disability . . . from November 11, 2018, through the date of
th[e D]ecision.” Tr. at 33 (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). 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.
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
-6-

the Commissioner’s findings. Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155,
1158-59 (11th Cir. 2004) (per curiam).
IV.

Discussion

For ease of discussion, the undersigned first addresses the issue about Dr.
Tolli’s opinion (Plaintiff’s treating orthopedic surgeon). Second, the undersigned
addresses together the issues about subjective symptoms generally (Plaintiff’s
issue two) and alleged mental and fibromyalgia limitations and symptoms
(Plaintiff’s issue three).
A. Treating Physician’s Opinion
Plaintiff argues the ALJ erred in evaluating the opinion of Dr. Tolli. Pl.’s
Mem. at 5-15. According to Plaintiff, the ALJ “fails to cite specifically to any
medical evidence” in support of the finding that Dr. Tolli’s opinion is not
supportable or consistent with the evidence. Id. at 7. Moreover, Plaintiff alleges
the ALJ failed to accurately and logically state reasons for finding the opinion
not supported. Id. at 11-12. Responding, Defendant contends the ALJ correctly
analyzed Dr. Tolli’s opinion, and the ALJ’s reasons for finding it not supported
or consistent are supported by substantial evidence. Def.’s Mem. at 5-10.
The SSA revised the rules regarding the evaluation of medical evidence
for claims filed on or after March 27, 2017. See Revisions to Rules Regarding
the Evaluation of Medical Evidence, 82 Fed. Reg. 5844, 5844 (January 18,
2017); see also 82 Fed. Reg. 15,132 (March 27, 2017) (amending and correcting
-7-

the final Rules published at 82 Fed. Reg. 5,844). Under the new rules and
Regulations, “A medical opinion is a statement from a medical source about
what [the claimant] can still do despite [his or her] impairment(s) and whether
[the claimant] ha[s] one or more impairment-related limitations or restrictions
in the following abilities:” 1) the “ability to perform physical demands of work
activities”; 2) the “ability to perform mental demands of work activities”; 3) the
“ability to perform other demands of work, such as seeing, hearing, or using
other senses”; and 4) the “ability to adapt to environmental conditions.” 20
C.F.R. § 404.1513(a)(2); see also 20 C.F.R. § 404.1502 (defining “[a]cceptable
medical sources”). “Other medical evidence is evidence from a medical source
that is not objective medical evidence or a medical condition, including
judgments about the nature and severity of [a claimant’s] impairments, [a
claimant’s] medical history, clinical findings, diagnosis, treatment prescribed
with response, or prognosis.” 20 C.F.R. § 404.1513(a)(3).
An ALJ need 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 [the claimant’s] medical sources.” 20 C.F.R.
§ 404.1520c(a). 7 “Because section 404.1520c falls within the scope of the
Commissioner’s authority and was not arbitrary and capricious, it abrogates

7

Plaintiff filed her DIB application after the effective date of section 404.1520c,
so the undersigned applies the revised rules and Regulations.
-8-

[the United States Court of Appeals for the Eleventh Circuit’s] prior precedents
applying the treating-physician rule.” Harner v. Soc. Sec. Admin., Comm’r, 38
F.4th 892, 896 (11th Cir. 2022).
The following factors are relevant in an ALJ’s consideration of a medical
opinion or a prior administrative medical finding: (1) “[s]upportability”; (2)
“[c]onsistency”; (3) “[r]elationship with the claimant”; (4) “[s]pecialization”; and
(5) other factors, such as “evidence showing a medical source has familiarity
with the other evidence in the claim or an understanding of [the SSA’s]
disability program’s policies and evidentiary requirements.” 20 C.F.R.
§ 404.1520c(c). Supportability and consistency are the most important factors,
and the ALJ must explain how these factors were considered. 20 C.F.R.
§ 404.1520c(b)(2). Generally, the ALJ is not required to explain how he or she
evaluated the remaining factors. 20 C.F.R. § 404.1520c(b)(2). However, if the
ALJ “find[s] that two or more medical opinions . . . about the same issue are
both equally well-supported . . . and consistent with the record . . . but are not
exactly the same, [the ALJ must] articulate how [he or she] considered the other
most persuasive factors . . . .” 20 C.F.R. § 404.1520c(b)(3). 8

8

When a medical source provides multiple opinions, the ALJ is also not required
to articulate how he or she evaluated each medical opinion individually. 20 C.F.R.
§§ 404.1520c(b)(1), 416.920c(b)(1). Instead, the ALJ must “articulate how [he or she]
considered the medical opinions . . . from that medical source together in a single analysis
using the factors listed [above], as appropriate.” 20 C.F.R. § 404.1520c(b)(1).
-9-

Here, Dr. Tolli authored a Physical Medical Source Statement on
December 2, 2020, Tr. at 482-85, and filled out an Onset Date Questionnaire on
December 1, 2020, Tr. at 486. Listing Plaintiff’s diagnoses and an “unknown”
prognosis, Dr. Tolli wrote that Plaintiff has “low back pain.” Tr. at 482. Asked
to “[i]dentify the clinical findings and objective signs,” Dr. Tolli wrote, “see
attached notes.” Tr. at 482. According to Dr. Tolli, Plaintiff’s pain would
frequently interfere with her attention and concentration. Tr. at 482. Dr. Tolli
opined Plaintiff can only walk one city block, can sit and stand thirty minutes
at a time and two hours total, will need unscheduled breaks twice a day lasting
fifteen minutes, and can rarely lift and carry less than ten pounds. Tr. at 483.
Dr. Tolli stated Plaintiff would need to lie down for four hours per eight-hour
day. Tr. at 484. Dr. Tolli indicated that Plaintiff would be expected to miss four
days per month of work. Tr. at 484. According to Dr. Tolli, the assigned
limitations have been present since October 14, 2020 (significantly after
Plaintiff’s alleged onset date of November 11, 2018). Tr. at 486.
The ALJ, in analyzing Dr. Tolli’s opinion, wrote the following:
The opinion of Thomas Tolli, M.D. is not persuasive. Dr.
Tolli has opined a number of limitations that would
preclude even a narrow range of sedentary exertion. Dr.
Tolli assessed the ability to rarely lift less than 10
pounds and the ability to sit for only 2 hours total per
8-hour workday. The opinion is not supportable or
consistent with the evidence. In support of his opinion,
Dr. Tolli only generally cited a basis including the
physical examination, imaging studies, surgical
- 10 -

findings, etc, and Dr. Tolli did not provide any specific
information as a basis. Additionally, the extreme
limitations such as sitting for only 2 hours per day is
inconsistent with the overall evidence including
[Plaintiff’s] work activity during the period in which
disability is alleged and also the lack of reports of any
obvious discomfort while sitting during office visits.
Tr. at 31-32 (citation omitted).
The ALJ’s findings are adequate and supported by substantial evidence.
First, Plaintiff readily admits she worked part-time at a golf club after the
9
alleged onset date. See Pl.’s Mem. at 12-13. Second, the ALJ’s observation that

Dr. Tolli did not provide any specifics to support his assigned limitations is
accurate. See Tr. at 482. In fact, Dr. Tolli refers the reader to his attached notes,
see Tr. at 482, which generally are not supportive of the gross limitations he
assigns, see, e.g., Tr. at 612 (post-surgery August 23, 2021 record from Dr. Tolli
indicating Plaintiff reported “improvement in her symptoms” and “is satisfied
with her current level of pain and measures taken for relief”). Nor are other
records supportive of Dr. Tolli’s assigned limitations. See, e.g., Tr. at 606
(primary care notation that Plaintiff reported being able to “walk several blocks
without getting short of breath”). Third and finally, the ALJ’s finding about no
obvious discomfort during office visits is supported both in Dr. Tolli’s notes, and

9

Plaintiff quarrels with a finding the ALJ made elsewhere in the Decision—that
her work was without accommodation. See Pl.’s Mem. at 13. This is resolved infra in the
discussion regarding the ALJ’s findings on Plaintiff’s subjective complaints.
- 11 -

in notes from her primary care provider. See Tr. at 614, 618 (Dr. Tolli’s notes
indicating no distress), 594, 598, 601, 604, 607 (primary care notes indicating
no acute distress). The ALJ’s findings are supported by substantial evidence.
B. Subjective Symptom Evaluation
Fibromyalgia Allegations)

(Including

Mental

and

Plaintiff argues the ALJ erred in evaluating her subjective complaints of
pain and other symptoms. Pl.’s Mem. at 15-20. According to Plaintiff, the ALJ
did not provide solid reasons to discount her allegations, and the ALJ erred in
determining she was working part-time without accommodation. See id. at 1720. As for her alleged mental limitations, Plaintiff indicates she has anxiety
with panic attacks, and the ALJ failed to account for the condition in the RFC.
Id. at 20-23. Regarding fibromyalgia, Plaintiff alleges the ALJ improperly
evaluated the condition and erroneously relied on objective evidence to discount
her allegations. Id. at 21-23. Responding, Defendant asserts the ALJ evaluated
all of the subjective complaints in accordance with the governing standards, and
the ALJ’s findings are supported by substantial evidence. See Def.’s Mem. at
11-20.
“[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
medical evidence confirming the severity of the alleged pain; or (b) that the
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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.
The Regulations provide that an ALJ “will” consider the following factors
related to symptoms such as pain:
(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.
20 C.F.R. § 404.1529(c)(3)(i)-(vii); see Raper v. Comm’r of Soc. Sec., 89 F.4th
1261, 1277 (11th Cir. 2024). The factors must be considered “in relation to other
evidence in the record and whether the claimant’s statements conflict with
other evidence.” Raper, 89 F.4th at 1277 (citation omitted); see 20 C.F.R. §
404.1529(c)(4). To reject the claimant’s assertions of subjective symptoms,
“explicit and adequate reasons” must be articulated by the ALJ. Wilson, 284

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F.3d at 1225; see also Dyer, 395 F.3d at 1210; Marbury v. Sullivan, 957 F.2d
837, 839 (11th Cir. 1992).
Fibromyalgia “is a complex medical condition characterized primarily by
widespread pain in the joints, muscles, tendons, or nearby soft tissues that has
persisted for at least 3 months.” Social Security Ruling (“SSR”) 12-2p, 2012 WL
3104869. 10 Particularly related to fibromyalgia, SSR 12-2p “provides guidance
on how the [Administration] develops evidence that a person has a medically
determinable impairment of fibromyalgia and how it evaluates fibromyalgia in
disability claims.” Sorter v. Soc. Sec. Admin., Comm’r, 773 F. App’x 1070, 1073
(11th Cir. 2019) (citing SSR 12-2p, 2012 WL 3104869).
There are two main ways set forth in SSR 12-2p for evaluating whether
fibromyalgia is a medically determinable impairment. The first way requires a
claimant to have “[a] history of widespread pain” that “may fluctuate in
intensity and may not always be present,” as well as “[a]t least 11 positive
tender points on physical examination” with various requirements; and finally,
“[e]vidence that other disorders that could cause the symptoms or signs were
excluded.” SSR 12-2p. The second way requires “[a] history of widespread pain”;
“[r]epeated manifestations of six or more [fibromyalgia] symptoms, signs, or co-

10

Social Security Rulings “are binding on all components of the Social Security
Administration” and “represent precedent final opinions and orders and statements of policy
and interpretations that [the Administration has] adopted.” 20 C.F.R. § 402.35(b)(1).
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occurring conditions, especially manifestations of fatigue, cognitive or memory
problems (‘fibro fog’), waking unrefreshed, depression, anxiety disorder, or
irritable bowel syndrome”; and “[e]vidence that other disorders that could cause
these repeated manifestations of symptoms, signs, or co-occurring conditions
were excluded.” Id.
Once an ALJ determines that a claimant has the medically-determinable
impairment of fibromyalgia, the ALJ proceeds with a symptom-evaluation
process. Id. “If objective medical evidence does not substantiate the [claimant’s]
statements about the intensity, persistence, and functionally limiting effects of
symptoms, [the Administration is to] consider all of the evidence in the case
record, including the [claimant’s] daily activities, medications or other
treatments the [claimant] uses, or has used, to alleviate symptoms; the nature
and frequency of the [claimant’s] attempts to obtain medical treatment for
symptoms; and statements by other people about the [claimant’s] symptoms.”
Id.
Then, the fibromyalgia impairment is included in the five-step sequential
evaluation process as with other impairments. Id. When an ALJ is considering
the RFC, SSR 12-2p directs that “for a person with [fibromyalgia,] we will
consider a longitudinal record whenever possible because the symptoms of
[fibromyalgia] can wax and wane so that a person may have ‘good days and bad
days.’” Id.
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When evaluating mental impairments, the Regulations direct the use of
a “special technique.” 20 C.F.R. §§ 404.1520a(a), (b) and 416.920a(a), (b). In the
first step of the psychiatric review technique, it is determined whether a
claimant has a medically determinable mental impairment. 20 C.F.R. §§
404.1520a(b)(1) and 416.920a(b)(1). Next, if there is a medically determinable
mental impairment, the degree of functional limitation resulting from such
impairment is ascertained. 20 C.F.R. §§ 404.1520a(b)(2), (c) and 416.920a(b)(2),
(c). The degree of functional limitation resulting from a medically determinable
mental impairment is ascertained by rating four “broad functional areas” in the
listings: “Understand, remember, or apply information; interact with others;
concentrate, persist, or maintain pace; and adapt or manage oneself.” 20 C.F.R.
§§ 404.1520a(c)(3) and 416.920a(c)(3); 20 C.F.R. Part 404, Subpart P, Appendix
1 § 12.00E. These broad functional areas are rated using a five-point scale: none,
mild, moderate, marked, and extreme. 20 C.F.R. §§ 404.1520a(c)(4) and
416.920a(c)(4). After the degree of functional limitation resulting from the
claimant’s medically determinable mental impairment is rated, the severity of
the mental impairment is established. 20 C.F.R. §§ 404.1520a(d) and
416.920a(d).
The RFC assessment “is the most [a claimant] can still do despite [his or
her] limitations.” 20 C.F.R. § 404.1545(a)(1). It is used at step four to determine
whether a claimant can return to his or her past relevant work, and if necessary,
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it is also used at step five to determine whether the claimant can perform any
other work that exists in significant numbers in the national economy. 20 C.F.R.
§ 404.1545(a)(5). In assessing a claimant’s RFC, the ALJ “must consider
limitations and restrictions imposed by all of an individual’s impairments, even
those that are not ‘severe.’” SSR 96-8P, 1996 WL 374184 at *5; see also Pupo v.
Comm’r, Soc. Sec. Admin., 17 F.4th 1054, 1064 (11th Cir. 2021) (citing Schink,
935 F.3d at 1268); Swindle v. Sullivan, 914 F.2d 222, 226 (11th Cir. 1990)
(stating that “the ALJ must consider a claimant’s impairments in combination”)
(citing 20 C.F.R. § 404.1545; Reeves v. Heckler, 734 F.2d 519, 525 (11th Cir.
1984)).
The special technique for mental impairments used in earlier steps is
distinct from the analysis of a claimant’s RFC. See 20 C.F.R. §§ 404.1520a(d)(3)
and 416.920a(d)(3); see also Winschel v. Comm’r, 631 F.3d 1176, 1180 (11th Cir.
2011). Nevertheless, the ALJ in assessing an RFC and later posing a
hypothetical to a VE should take into account the special technique findings
and either “implicitly account for [any] limitation[s]” or “indicate that medical
evidence suggest[s a claimant’s] ability to work [is] unaffected by th[e]
limitation[s].” Winschel, 631 F.3d at 1180.
Here, the ALJ, addressing at step two Plaintiff’s “mental impairments of
affective disorder and anxiety disorder,” found they “do not cause more than
minimal limitation in [Plaintiff’s ability to perform basic mental work activities
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and are therefore nonsevere.” Tr. at 25. The ALJ then found as to the four broad
functional areas that Plaintiff has “no limitation” in “understanding,
remembering, or applying information”; “no limitation” in “interacting with
others”; “mild limitation” in “concentrating, persisting or maintaining pace”;
and “no limitation” in “adapting or managing oneself.” Tr. at 25-26.
Plaintiff does not challenge any of these findings, instead arguing that
the ALJ should have included limitations for Plaintiff’s anxiety in the RFC. See
Pl.’s Mem. at 20-23. The ALJ, however, determined that given the lack of
severity of mental limitation, the RFC did not need to incorporate mental
limitations. See Tr. at 26 (discussion of non-severity), 27-28 (RFC), 31
(observation that “state agency psychological consultants determined that there
was insufficient evidence to make a finding regarding the mental
impairments”). This finding is supported by substantial evidence even though
the record does document diagnosis and treatment for the disorders. See, e.g.,
Tr. at 603 (primary care note dated June 2, 2021 stating, “Patient states that
overall she is doing very well,” and “Patient states that her mood disorder is
[under] good control”), 600 (February 3, 2021 note with similar observations).
As for the fibromyalgia allegations, the ALJ specifically recognized
binding Eleventh Circuit authority stating that “the ‘hallmark’ of fibromyalgia
is ‘a lack of objective evidence.’’ Tr. at 31 (citing Moore v. Barnhart, 405 F.3d
1208, 1211 (11th Cir. 2005)). The ALJ credited much of Plaintiff’s subjective
- 18 -

allegations about the fibromyalgia, stating she had “taken [Eleventh Circuit
authority] into account and reduced the [RFC] to sedentary exertion with
postural and manipulative limitations due to the subjective complaints.” Tr. at
31.
The ALJ then reasoned that Plaintiff’s ability to perform some work,
together with her testimony that she could stand for at least two hours at a time
before stretching out her legs, showed the ability to perform sedentary work.
Tr. at 31; see Tr. at 53 (Plaintiff testifying her current job requires standing
about five hours, “[b]ut within two hours, [she] start[s] to get the muscle spasms
and cramping down the leg”). The ALJ did not err in addressing Plaintiff’s
complaints relating to her fibromyalgia, and the ALJ’s assigned RFC in that
regard is supported by substantial evidence. See, e.g., Tr. at 56 (Plaintiff
testifying she gets fibromyalgia symptoms if she does not take her medication,
which includes “feelings of pins and needles and just bruising feeling of [her]
skin,” but medication relieves the symptoms).
Regarding Plaintiff’s subjective complaints overall, the ALJ found
Plaintiff’s “medically determinable impairments could reasonably be expected
to cause the alleged symptoms” but that 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.” Tr. at
28. The ALJ detailed the medical evidence which showed “a number of objective
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examination findings that are largely normal and in marked contrast to the
very severe limitations alleged.” Tr. at 28.
The ALJ also found Plaintiff’s work activity after the alleged onset date
was “inconsistent with the severe limitations alleged.” Tr. at 28-29. Plaintiff
quarrels with the ALJ’s finding in one place in the Decision that Plaintiff’s
“testimony did not indicate any special accommodations,” Tr. at 29, but this
finding is largely supported as to Plaintiff’s then-current position, see Tr. at 54
(Plaintiff testifying she does not receive accommodations at work, no “breaks or
anything, no,” and “[n]o ramps”), 55 (Plaintiff testifying she temporarily leaves
her computer to “stretch out [her] legs” when she gets a muscle spasm).
The ALJ further noted that there was a lack of evidence of treatment for
anything noteworthy around the November 11, 2018 alleged onset date. Tr. at
29. In arriving at the RFC, the ALJ relied in part on Plaintiff’s own “testimony
that she can stand for 2 hours before she experiences leg [c]ramps.” Tr. at 32.
In sum, the ALJ did not reversibly err in evaluating Plaintiff’s subjective
complaints, and the ALJ’s findings are supported by substantial evidence.
V.

Conclusion

The ALJ’s Decision is supported by substantial evidence. In light of the
foregoing, it is
ORDERED:

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1.

The Clerk of Court is directed to enter judgment pursuant to

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

The Clerk is further directed to close the file.

DONE AND ORDERED in Jacksonville, Florida on March 27, 2024.

kaw
Copies to:
Counsel of Record

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