ROBERTS

v.

KIJAKAZI

Plaintiff applied for disability insurance benefits (“DIB”) on December 8, 2020, alleging a disability onset date of July¹, 2020 (“Alleged Onset Date”). Tr. 15, 120–22. Plaintiff was born in 1961 and was 58 years old on the Alleged Onset Date. Tr.

120. Her DIB claim was denied initially and upon reconsideration. Tr. 15, 66–69, 73–76. Thereafter, Plaintiff requested a hearing pursuant to 20 C.F.R. § 404.929 which occurred on July 14, 2022, before an Administrative Law Judge (“ALJ”). Tr. 28–50. Plaintiff appeared telephonically and was not represented. Tr.

30. At the hearing, only Plaintiff and a vocational expert (“VE”) provided testimony. Tr. 33, 43. The ALJ issued her decision on August 24, 2022, finding Plaintiff not disabled under the Social Security Act from the Alleged Onset Date through the date of the ALJ’s decision. Tr. 12–27. On January 26, 2023, the Appeals Council denied Plaintiff’s request for review, thereby leaving the ALJ’s conclusion as the final decision of the Commissioner. Tr. 1–6. Plaintiff subsequently filed this action seeking judicial review of the Commissioner’s verdict. [DE¹].

II. STANDARD OF REVIEW

In reviewing claims brought under the Social Security Act, a court’s role is limited. Bloodsworth v. Heckler, 703 F. 2d 1233, 1239 (11th Cir. 1983). The Commissioner’s findings of fact must be affirmed if they are based upon “substantial evidence.” See 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971); Moore v. Barnhart, 405 F. 3d 1208, 1211 (11th Cir. 2005). “Substantial evidence is . . . such relevant evidence as a reasonable person would accept as adequate to support a conclusion.” Moore, 405 F. 3d at 1211 (citing Crawford v. Comm’r of Soc. Sec., 363 F. 3d 1155, 1158 (11th Cir. 2004)). It “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)). “If the Commissioner’s decision is supported by substantial evidence, this Court must affirm, even if the proof preponderates against it.” Id. (quoting Phillips v. Barnhart, 357 F. 3d 1232, 1240 n.8 (11th Cir. 2004)). Courts “may not decide facts anew, reweigh the evidence, or substitute [their] judgment for that of the [Commissioner].” Id. (second alteration in original) (quoting Phillips, 357 F. 3d at 1240 n.8); Bloodsworth, 703 F. 2d at 1239. In addition to determining whether the Commissioner’s factual findings are supported by substantial evidence, courts must determine whether the ALJ applied the correct legal standards. Wilson v. Barnhart, 284 F. 3d 1219, 1221 (11th Cir. 2002).

III. DISCUSSION

A. THE SEQUENTIAL EVALUATION

A “disability” is defined as an 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 twelve months.” 42 U.S.C. § 1382c(a)(3)(A).

In making a disability determination, “the ALJ must consider the evidence in its entirety, including: (1) objective medical facts or clinical findings; (2) diagnoses of examining physicians; (3) subjective evidence of pain and disability as testified to by the claimant . . . and (4) the claimant’s age, education, and work history.” Maffia v. Comm’r of Soc. Sec., 291 F. App’x 261, 262–63 (11th Cir. 2008) (quoting DePaepe v. Richardson, 464 F. 2d 92, 94 (5th Cir.1972)); see also Walden v. Schweiker, 672 F. 2d 835, 839 (11th Cir. 1982).

To arrive at a determination as to disability, the ALJ must undertake the sequential evaluation embodied in 20 C.F.R. § 404.1520. This process requires that the ALJ first determine whether the claimant is presently engaged in substantial gainful activity. 20 C.F.R. § 404.1520(b).

If so, a finding of “no disability” is made. If the claimant is not engaged in such work, then the ALJ must proceed to the second step and determine whether the claimant suffers from a “severe impairment.” An impairment is severe if it significantly limits the claimant’s physical or mental ability to perform basic work activities. 20 C.F.R. § 404.1520(c).

If no severe impairment is found, then the ALJ will conclude that there is no disability; if a severe impairment is found, then the ALJ will proceed to the next step of the analysis. See 20 C.F.R. § 404.1520(c).

The third step requires the ALJ to determine whether the claimant’s impairment meets or equals those listed in Appendix¹ of the Regulations. 20 C.F.R. § 404.1520(d).

If so, the ALJ will find the claimant disabled without considering age, education, and work experience. 20 C.F.R. § 404.1520(d).

If not, the inquiry will proceed to the next stage. Step four requires the ALJ to determine whether the claimant has the residual functional capacity (“RFC”) to perform past relevant work. 20 C.F.R. § 404.1520(e).

The Regulations define RFC as “the most you can still do despite your limitations.” 20 C.F.R. § 404.1545(a)(1).

This determination takes into account “all of the relevant medical and other evidence,” including the claimant’s testimony and the observations of others. 20 C.F.R. § 404.1545(a)(3).

The ALJ must then compare the RFC with the physical and mental demands of the claimant’s past relevant work to determine whether the claimant is still capable of performing that kind of work. If so, the claimant is found not disabled. 20 C.F.R. § 404.1520(f).

If the claimant establishes an inability to return to past relevant work, the inquiry turns to step five. “At step five the burden of going forward shifts to the [Commissioner] ‘to show the existence of other jobs in the national economy which, given the claimant’s impairments, the claimant can perform.’” Washington v. Comm’r of Soc. Sec., 906 F. 3d 1353, 1359 (11th Cir. 2018) (quoting Hale, 831 F. 2d at 1011). If the Commissioner points to possible alternative employment, then the burden returns to the claimant to prove an inability to perform those jobs. Id. At this fifth and final step, the ALJ must resolve whether the claimant is actually capable of performing other work. See 20 C.F.R. §§ 404.1520(g), 404.1560(c). To help evaluate whether sufficient jobs exist that can be performed given the claimant’s age, education, and physical limitations, the Commissioner has promulgated Medical Vocational Guidelines. See 20 C.F.R. pt. 404, subpt. P, app.

2. The guidelines may apply “where a person is not doing substantial gainful activity and is prevented by a severe medically determinable impairment from doing vocationally relevant past work.” 20 C.F.R. § 404.1569. The guidelines are composed of detailed grids and rules, which direct a finding of disabled or not disabled based on a claimant’s RFC, age, education, and previous work experience. Walker v. Bowen, 826 F. 2d 996, 1002 (11th Cir. 1987). Yet, the guidelines “do not cover all possible variations of factors” and are inapplicable “if one of the findings of fact about the person’s vocational factors and [RFC] is not the same as the corresponding criterion of a rule.” 20 C.F.R. § 404.1569.

Therefore, “[e]xclusive reliance on the grids is not appropriate either when [the] claimant is unable to perform a full range of work at a given residual functional level or when a claimant has non-exertional impairments that significantly limit basic work skills.” Phillips, 357 F. 3d at 1242 (alterations in original) (citation omitted); see also Walker, 826 F. 2d at 1002–03; Hargis v. Sullivan, 945 F. 2d 1482, 1490 (10th Cir. 1991).

Nevertheless, in such situations, the guidelines may serve as a framework to determine whether sufficient jobs exist within a claimant’s range of RFC. Hargis, 945 F. 2d at 1490.

However, the Commissioner may carry his or her burden through the use of a VE when exclusive reliance on the guidelines is not appropriate. Chaney-Everett v. Astrue, 839 F. Supp. 2d 1291,

1299 (S.D. Fla. 2012) (citing Walker v. Bowen, 889 F. 2d 47, 50 (4th Cir. 1989); Walker, 826 F. 2d at 1003). A VE provides the ALJ with a realistic appraisal of the work that a claimant is capable of performing. Id. (citing Walker, 889 F. 2d at 50).

B. ALJ’S APPLICATION OF THE SEQUENTIAL EVALUATION After considering the evidence, the ALJ found Plaintiff not disabled between the Alleged Onset Date and the date of the ALJ’s decision. See Tr. 12–27. Initially, the ALJ addressed certain preliminary issues and outlined in detail the five steps of the sequential evaluation. Tr. 15–17. Then, addressing the first step in the sequential evaluation, the ALJ concluded Plaintiff had not engaged in substantial gainful activity since the Alleged Onset Date. Tr.

17.

At step two, the ALJ found Plaintiff had the severe impairment of degenerative disc disease of the lumbar spine. Tr.

18. The ALJ also discussed Plaintiff’s non-severe impairments at step two which included: an altered mental status due to narcotic overuse before the Alleged Onset Date; sciatica on an ER visit prior to the alleged onset date; lumbar spine radiculopathy; spurring of the greater trochanters of both hips, without other abnormalities noted on x-rays; benign arrhythmia with negative workup; psoriasis; nicotine dependence; and decreased visual acuity at 20/25 in the left and 20/40 in the right without corrective lenses. Tr. 18. The ALJ concluded that these impairments did not significantly limit Plaintiff’s physical or mental ability to do basic work activities. Tr. 18. Next, at step three, the ALJ determined Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of any of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. Tr. 18. While conducting step four of the analysis, the ALJ assessed Plaintiff’s RFC, determining based on her consideration of the entire record that Plaintiff has the RFC to perform “light work as defined in 20 CFR 404.1567(b) except: no climbing ladders, ropes, and scaffolds; occasional climbing of ramps and stairs and stooping; frequent balancing, kneeling, crouching, and crawling.” Tr.

19. After assessing Plaintiff’s RFC, the ALJ found Plaintiff could perform her past relevant work as an administrative clerk and secretary. Tr.

23.

Thus, the ALJ concluded Plaintiff was not disabled and did not proceed to step five. Tr.

23.

C.

ANALYSIS

In her motion, Plaintiff raises three arguments.

First, Plaintiff contends the ALJ erred in evaluating the severity of Plaintiff’s back symptoms.

Second, Plaintiff argues the ALJ erred when she classified Plaintiff’s psoriasis as non-severe.

Finally, Plaintiff posits the ALJ erred in finding Plaintiff’s part-time work was inconsistent with a claim for disability. For the following reasons, the evidence does not support Plaintiff’s contentions.

1. Severity of Plaintiff’s Symptoms Plaintiff fails to establish error in the ALJ’s decision that Plaintiff’s symptoms were inconsistent with the evidence in the record. In coming to her conclusion, the ALJ considered numerous pieces of evidence.

First, the ALJ considered Plaintiff’s testimony. Plaintiff admitted she has a part-time job that she can do fully remotely from home, and a typical day for her consists of doing things around the home such as the laundry, dishes, and generally straightening up. Tr. 19, 39. Plaintiff further testified that she drives herself to the grocery store but is careful not to purchase or lift anything heavy. She stated she prepares meals for herself, but if she cooked, would lean against the counter to help alleviate the back pain. Tr. 19, 39–41. She was unable to sit and watch a movie for more than half an hour, at which time, she had to get up. Plaintiff averred she was “not a big medication taker,” and did not follow through with her doctor’s recommendation of certain steroid injections because of the reaction she perceived they would cause. Tr. 19, 40.

Next, the ALJ reviewed Plaintiff’s medical evidence. That evidence revealed the emergency department at Memorial Hospital admitted Plaintiff for lower back pain in December 2019. Tr.

252. The hospital provided Plaintiff with one tablet of NORCO and one tablet of NORFLEX, and prescribed NORCO, LIORESAL, and DELTASONE on discharge for left-sided sciatic pain. Tr. 254–56. Plaintiff returned to Memorial Hospital’s emergency department around a month later due to being in an altered mental state. Tr.

232. The treating physician diagnosed Plaintiff with an altered mental state which was secondary to the use of narcotics and possibly with psychosis associated to steroids. Tr. 245–46. Notably, while in the emergency room for her altered mental state, Plaintiff’s records indicate the hospital provided Plaintiff with steroids, which helped her, but withheld narcotics. Tr.

245.

Additionally, Plaintiff’s physical exam and CT exam discovered nothing out of the ordinary. Tr. 244–45. The ALJ noted that the emergency room visits were months prior to Plaintiff’s Alleged Onset Date. Tr.

20. Since her Alleged Onset Date, Plaintiff has not returned to the emergency room for back pain or had any chiropractic treatment. Tr. 20, 166, 175. Plaintiff underwent an

MRI which revealed multi-level disc bulges, again, prior to Plaintiff’s Alleged Onset Date. Tr.

337. In 2021, Plaintiff visited Dr. Christopher Foth, a consultive examiner, who performed her physical. Tr. 366–69. Dr. Foth assessed Plaintiff suffered from psoriasis and sciatic nerve pain and anticipated Plaintiff would have difficulties performing work-related activities such as sitting, standing, walking, lifting, carrying, and handling objects. Tr. 368–69. Notably, Dr. Foth’s exam found “[n]o significant range of motion deficits at the cervical or lumbar spine,” no “paravertebral muscle spasm,” “[n]o significant range of motion deficits at bilateral upper extremities or lower extremities,” and Plaintiff’s “[s]itting and supine straight leg raises [were] negative bilaterally.” Tr. 368.

Plaintiff underwent another orthopedic evaluation in 2022 with Dr. Richard Linn. Tr. 392– 94. Dr. Linn concluded Plaintiff had normal alignment of the lumber spine, moderate restriction of motion with associated discomfort, and moderate lumbar muscular spasm with associated tenderness. Tr.

393. As was the case in 2021, straight leg raise testing was negative bilaterally. Tr.

393. For treatment, Dr. Linn recommended Plaintiff use Medrol Dosepak to reduce the inflammation or consider taking a lumbar epidural steroid injection. Tr.

394. Plaintiff refused both recommendations. Tr. 41–42. Last, the ALJ reviewed the state agency medical consultants and prior administrative medical findings. Tr.

22. The ALJ noted that the medical consultants opined that Plaintiff could perform medium-level work with unlimited ability to perform postural activities except occasionally climb ladders, ropes, scaffolds, and frequently stoop. Tr. 22, 54–55, 58–63, 389. “An individual’s statement as to pain or other symptoms shall not alone be conclusive evidence of disability . . . .” 42 U.S.C. § 423(d)(5)(A); see also 20 C.F.R. § 404.1529(a). Instead, the ALJ must examine all the evidence – especially the objective medical evidence – when determining whether an individual is disabled. See 20 C.F.R. § 404.1529(a).

A claimant seeking to establish a disability based on testimony of pain and other symptoms must satisfy two parts of a three-part test 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 objectively determined medical condition can reasonably be expected to give rise to the claimed pain.” Wilson, 284 F. 3d at 1225. If the medical evidence shows a claimant has a medically determinable impairment that “could reasonably be expected to produce [a claimant’s] symptoms, such as pain,” then the ALJ must evaluate the intensity and persistence of a claimant’s symptoms to determine how those symptoms affect a claimant’s capacity for work. 20 C.F.R. § 404.1529(c)(1).

Here, Plaintiff testified she could not sit for more than half an hour before needing to get up due to her back pain, and, when she worked full time, Plaintiff had difficulty preparing meals and cooking because of the pain which required her to lean against the counter as standing straight up was too painful. Tr. 40–41.

In contrast with these statements, Plaintiff’s medical records indicate she suffered from sciatic nerve pain – which Dr. Foth opined would lead to difficulties performing work-related activities – but otherwise had “[n]o significant range of motion deficits at the cervical or lumbar spine,” no “paravertebral muscle spasm,” and “[n]o significant range of motion deficits at bilateral upper extremities or lower extremities.” Tr. 368–69.

Additionally, Plaintiff’s most recent orthopedic evaluation reveled she had normal alignment of the lumber spine, moderate restriction of motion with associated discomfort, and moderate lumbar muscular spasm with associated tenderness. Considering this evidence, the ALJ concluded Plaintiff showed evidence of an underlying medical condition and the medical condition could have reasonably been expected to give rise to the claimed pain. Tr.

20.

The ALJ then evaluated the intensity and persistence of Plaintiff’s symptoms to determine how those symptoms affected Plaintiff’s capacity for work. An ALJ should not reject a claimant’s statements about “the intensity and persistence of [their] pain or other symptoms or about the effect [their] symptoms have on [their] ability to work solely because the available objective medical evidence does not substantiate [their] statements.” 20 C.F.R. § 404.1529(c)(2).

Nevertheless, an ALJ should consider the objective medical evidence, as well as other evidence such as (1) the claimant’s daily activities, (2) the location, duration, frequency, and intensity of a claimant’s pain or other symptoms, (3) the type, dosage, effectiveness, and side effects of any medication claimant takes or has taken to alleviate their pain or other symptoms, (4) treatment they received or have received for pain relief, (5) and any measures they have used to relieve their pain or other symptoms. 20 C.F.R. § 404.1529(c)(2)–(3). In finding that the Plaintiff’s complaints about her subjective pain symptoms were overstated, the ALJ pointed to several pieces of evidence. The ALJ noted Plaintiff’s testimony that she could still perform daily activities around the home such as the laundry, dishes, and generally straightening up.¹ Tr. 39. Plaintiff could also drive herself to the grocery store and go

The ALJ, however, considered several other factors in coming to her conclusion. shopping but was careful not to lift anything heavy. Tr. 39–40. Plaintiff stated her pain was along her back, would act up after thirty minutes of sitting straight, and last until she changed positions or did her recommended exercises. Tr. 41–43. Yet, Plaintiff suggested she could work full-time if the job was remote. Tr. 36–37. The ALJ also found the fact that Plaintiff had not sought any treatment for her back pain since the Alleged Onset Date (with her visits to the emergency room pre-dating the Alleged Onset Date), as well the fact that Dr. Finn’s notes recommended only conservative treatment, to be inconsistent with Plaintiff’s subjective pain symptoms. Tr. 21-22. The ALJ similarly considered the fact that Plaintiff has declined to take medication as inconsistent with her subjective symptoms. In terms of the type, effectiveness, and side effects of the medication Plaintiff takes or has taken, Plaintiff declared she was “not a big medication taker.” Tr.

40. Plaintiff’s physician recommended she use Medrol Dosepak to reduce the inflammation or consider taking a lumbar epidural steroid injection receive. Tr.

394.

However, Plaintiff stated that was not an option due to her belief that steroids caused her to experience a severe reaction in 2020. Tr. 41–42. All of these facts amount to substantial evidence supporting the ALJ’s findings. Plaintiff finds error with the ALJ’s interpretation of Plaintiff’s refusal to receive steroid injections, contending that the ALJ did not account for Plaintiff’s fear of suffering an adverse reaction like the one that sent her to the emergency room in January 2020. Specifically, Plaintiff argues that the ALJ improperly substituted her opinion for that of the medical professionals in stating that NORCO (the narcotic) had been the medication that had caused Plaintiff’s altered mental status and not steroids. [DE 6 at 10]; Tr.

20. The ALJ, however, did not formulate this statement solely on her own suspicion and did not simply substitute her opinion for that of a medical professional. On the contrary, the objective medical evidence suggested Plaintiff’s altered mental state was secondary to the use of narcotics and possibly with psychosis associated to steroids. Tr. 245–46.

Moreover, while in the emergency room for her altered mental state, Plaintiff’s records indicate the hospital provided Plaintiff with steroids, which helped her, but withheld narcotics. Tr.

245. While it is true different physicians at different times during Plaintiff’s stay in the emergency room for altered mental state were unsure of the cause of her health troubles,² “[u]nder a substantial evidence standard of review, [Plaintiff] must do more than point to evidence in the record that supports her position; she must show the absence of substantial evidence supporting the ALJ’s conclusion.” Sims v. Comm’r of Soc. Sec., 706 F. App’x 595, 604 (11th Cir. 2017).

In this scenario, Plaintiff has not shown there was an absence of substantial evidence supporting the ALJ’s conclusion that narcotics, rather than steroids, caused Plaintiff’s altered mental state. Plaintiff further alleges the ALJ incorrectly dismissed the severity of Plaintiff’s 2020 MRI report, and Dr. Foth’s opinion relying on that MRI, and relied too heavily on her lumbar x-rays taken in 2022. [DE 6 at 11]. But the ALJ’s conclusions are supported by substantial evidence.

Because Plaintiff filed her claim after March 27, 2017, the ALJ must consider but does “not defer or give any specific evidentiary weight, including controlling weight,” to any medical opinions. 20 C.F.R. § 404.1520c(a); see also Planas on behalf of A.P. v. Comm’r of Soc. Sec., 842 F. App’x 495, 498 (11th Cir. 2021) (noting the requirement to assign weight to medical opinions has been omitted from the revised regulation). Instead, the ALJ must evaluate the persuasiveness of medical opinions and prior administrative medical findings based upon five factors: “(1) supportability; (2) consistency; (3) relationship with the claimant; (4) specialization; and (5) ‘other factors that tend to support or contradict’ the opinion” or finding. Walker v. Soc. Sec. Admin., Comm’r, No. 21-

404.1520c(b). The ALJ must explain how they considered the factors of supportability and consistency, but the ALJ is generally not required to explain how they considered the other three factors. 20 C.F.R. § 404.1520c(b)(2)-(3). Under the supportability factor, “[t]he 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). Under the consistency factor, “[t]he 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). Here, the medical evidence presented to the ALJ contained reports on Plaintiff’s back pain from several doctors over the span of two years. Two of those doctors diagnosed Plaintiff with sciatica. See Tr. 368, 393–94. The ALJ reasonably found Dr. Foth’s opinion unpersuasive because “it was overly broad and vague” and inconsistent with his own physical exam findings of Plaintiff. Tr.

22. Further, the ALJ observed that Dr. Finn only recommended “conservative treatment measures” which further buttressed the ALJ’s conclusion regarding Dr. Foth’s opinion. Tr.