ERMINY

v.

ACTING COMMISSIONER OF SOCIAL SECURITY

THIS MATTER came before the Court upon Plaintiff’s Motion for Summary Judgment/Initial Brief (“Plaintiff’s Motion”) [DE 22] and Defendant’s Motion for Summary Judgment (“Defendant’s Motion”) [DE²⁶]. I have reviewed both motions, Plaintiff’s Reply Brief [DE 28], the administrative record [DE 11], and all other filings in this case. For the reasons discussed herein, Plaintiff’s Motion [DE 22] will be DENIED and Defendant’s Motion [DE²⁶] will be GRANTED.

I. BACKGROUND & PROCEDURAL HISTORY

Plaintiff applied for disability insurance benefits (“DIB”) on August 28, 2019, alleging a disability onset date of December¹⁸, 2018 (“Alleged Onset Date”).

Tr. 15, 150, 390-95. She also applied for supplemental security income (“SSI”) on September¹⁹, 2019. Tr. 15, 151, 398-403. Plaintiff, who was born in 1968, was 50 years old on the Alleged Onset Date. Her DIB and SSI claims were denied initially and upon reconsideration. Tr. 15, 150-51, 190-91. Thereafter, Plaintiff appeared with counsel at two telephonic hearings before an Administrative Law Judge (“ALJ”), first on October 20, 2020, and again on October 7, 2021. Tr. 36-117. At the first hearing, Plaintiff, a medical expert (“ME”), and a vocational expert (“VE”) provided testimony. Tr. 36-80. At the second hearing, the same ME, an additional ME, and a different VE provided testimony. Tr. 81-117.

On November 8, 2021, the ALJ issued his decision, finding that Plaintiff was not disabled under the Social Security Act (from the Alleged Onset Date through the date of the ALJ’s decision). Tr. 15-28.

On May 13, 2022, the Appeals Council denied Plaintiff’s request for review, thereby leaving the ALJ’s decision as the final decision of the Commissioner. Tr. 1-3.

Consequently, on June 8, 2022, Plaintiff filed this action seeking judicial review of the Commissioner’s decision.

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) (citation omitted). “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 the facts anew, reweigh the evidence, or substitute [their] judgment for that of the [Commissioner].” Id. (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 and 416.920. 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), 416.920(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), 416.920(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), 416.920(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), 416.920(d).

If so, the ALJ will find the claimant disabled without considering age, education, and work experience. 20 C.F.R. §§ 404.1520(d), 416.920(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), 416.920(e). The Regulations define RFC as “the most you can still do despite your limitations.” 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). This determination takes into account “all of the relevant medical and other evidence,” including the claimant’s own testimony and the observations of others. 20 C.F.R. §§ 404.1545(a)(3), 416.945(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), 416.920(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 v. Bowen, 831 F. 2d 1007, 1011 (11th Cir. 1987)).

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), 416.920(g), 416.960(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, 416.969. 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, 416.969.

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 (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 that Plaintiff was not disabled between the Alleged Onset Date and the date of the ALJ’s decision. See Tr. 15-28. 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 found that Plaintiff had not engaged in substantial gainful activity since the Alleged Onset Date. Tr.

17.

At step two, the ALJ found that Plaintiff had the severe impairment of status post traumatic brain injury, causing diplopia and migraine headaches. Tr.

18. The ALJ also discussed nonsevere impairments at step two, including Plaintiff’s mental impairments, which the ALJ found were nonsevere. Tr. 18-21. As to Plaintiff’s mental impairments, the ALJ found (at step two) that Plaintiff’s “medically determinable mental impairments of mild neurocognitive disorder and generalized anxiety disorder, considered singly and in combination, do not cause more than minimal limitation in [Plaintiff’s] ability to perform basic mental work activities and are therefore non-severe.” Tr.

18. The ALJ noted that he considered the “paragraph B” criteria – the four broad areas of mental functioning – in making the foregoing finding. Tr.

18. He assessed a “mild” limitation in all four areas (understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; and adapting or managing oneself). Tr. 18- 19. Next, at step three, the ALJ found that 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.

21.

The ALJ next assessed Plaintiff’s RFC, determining based on his consideration of the entire record that Plaintiff has the RFC to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except as follows. [Plaintiff] can lift and or carry twenty pounds occasionally, ten pounds frequently. [Plaintiff] can stand and walk for a total of six hours in an eight-hour workday. [Plaintiff] can sit for a total of six hours in an eight-hour workday. [Plaintiff] should never climb ladders, ropes, or scaffolds, but she can frequently climb up stairs, stoop, kneel, crouch, and crawl, occasionally walk downstairs with a handrail, and occasionally balance. [Plaintiff] should not walk on uneven surface. [Plaintiff] should avoid all exposure to unprotected heights, and she should not be exposed to loud machinery.

Tr. 21-22. After assessing Plaintiff’s RFC, the ALJ found that – based on Plaintiff’s RFC – Plaintiff is capable of performing her past relevant work as an artist. Tr.

26.

Although – by finding that Plaintiff could perform her past relevant work – the ALJ effectively found that Plaintiff was not disabled at step four, the ALJ made alternative step five findings. Tr. 27-28. Specifically, relying on the VE’s testimony, and taking into account Plaintiff’s age, education, work experience, and RFC, the ALJ found that Plaintiff is capable of making a successful adjustment to other work existing in significant numbers in the national economy – in other words, the ALJ found that Plaintiff is capable of performing such work in addition to Plaintiff’s past relevant work. Tr. 27-28.

Therefore, the ALJ concluded that Plaintiff was not disabled at any time between the Alleged Onset Date and the date of the ALJ’s decision. Tr.

28.

C.

ANALYSIS

In her motion, Plaintiff raises two arguments.

First, Plaintiff contends that the ALJ erred by failing to include any mental limitations in Plaintiff’s RFC.

Second, Plaintiff contends that the ALJ erred by failing to adequately account for Plaintiff’s headaches in formulating Plaintiff’s RFC. As discussed herein, both arguments fail.

1. Mental Limitations

Plaintiff has failed to establish error with respect to the ALJ’s decision to omit mental limitations from Plaintiff’s RFC. In evaluating Plaintiff’s mental impairments, the ALJ evaluated the paragraph B criteria in connection with steps two and three of the sequential evaluation, and he also conducted a more detailed assessment of the relevant evidence regarding Plaintiff’s mental impairments. See Tr. 20 (recognizing that the mental RFC assessment requires a more detailed assessment than the paragraph B criteria evaluation at steps two and three); see also Buckwalter v. Acting Comm’r of Soc. Sec.,⁵ F. 4th 1315, 1325 (11th Cir. 2021) (“The ALJ’s analysis as to the Paragraph B criteria is part of steps two and three of the sequential analysis; it is distinct from the more detailed inquiry as to a claimant’s RFC at step four.” (citing Winschel v. Comm’r of Soc. Sec., 631 F. 3d 1176, 1180 (11th Cir. 2011)).

Such evidence included relevant opinion evidence and prior administrative medical findings, other medical evidence, Plaintiff’s testimony, and other evidence such as evidence regarding Plaintiff’s activities of daily living. See Tr. 18-22, 24. As indicated above, an ALJ must consider the medical severity a claimant’s impairments at step two of the sequential evaluation. Schink v. Comm’r of Soc. Sec., 935 F. 3d 1245, 1264-65 (11th Cir. 2019).

But step two only involves a “threshold” inquiry. Id. at 1265.

It simply “‘acts as a filter’ to weed out claims where there are no severe impairments at all.” Bullard v. Comm’r,

Soc. Sec. Admin., 752 F. App’x 753, 755 (11th Cir. 2018) (quoting and citing Jamison v. Bowen, 814 F. 2d 585, 588 (11th Cir. 1987)). Here, because the ALJ found severe impairments at step two – albeit no severe mental impairments – he did not “weed out” Plaintiff’s claims at step two. Rather, he denied her claims at step four (with an alternative finding at step five). Regarding Plaintiff’s mental impairments, the ALJ found at step two that Plaintiff’s “impairments of mild neurocognitive disorder and generalized anxiety disorder, considered singly and in combination, do not cause more than minimal limitation in the claimant’s ability to perform basic mental work activities and are therefore non-severe.” Tr.

18. Again, in making this finding,

the ALJ considered the four broad functional areas (the paragraph B criteria). See Buckwalter,⁵ F. 4th at 1324 (citing Schink, 935 F. 3d at 1269) (“In evaluating the severity of a claimant’s mental impairment at steps two and three of the sequential analysis, the ALJ makes determinations as to the claimant’s abilities in four broad functional areas known as ‘Paragraph B’ criteria.” (citing Schink, 935 F. 3d at 1269)). “The four areas consider the claimant’s ability to (1) understand,

remember, or apply information; (2) interact with others; (3) concentrate, persist, or maintain pace; and (4) adapt or manage herself.” Id. at 1324-25 (citing 20 C.F.R. § 404.1520a(c)(3)). “The ALJ must assign a rating of none, mild, moderate, marked, or extreme to a claimant’s limitation in each area of functioning.” Id. at 1325 (citing 20 C.F.R. § 404.1520a(c)(4)). Here, as noted above, the ALJ assigned a “mild” rating in all four areas. Because the ALJ did not find more than a mild limitation in any area, and because he found the evidence did “not otherwise indicate that there is more than a minimal limitation in [Plaintiff’s] ability to do basic work activities,” he concluded her mental impairments were not severe. Tr.

20.

Notably, “persuasive precedent demonstrates that ALJs are not obligated to include mental limitations in the RFC even when they find ‘mild’ limitations while” assessing the paragraph B criteria. E.g., Alvarado v. Kijakazi, No. 22-CV-60416, 2023 WL 2548424, at *13 (S.D. Fla. Mar. 17, 2023) (quoting Chestang v. Comm’r of Soc. Sec., No. 8:21-CV-482-MRM, 2022 WL 4354849, at *8 (M.D. Fla. Sept. 20, 2022)).¹ Now, that does not relieve ALJs of the obligation to consider all relevant evidence, all impairments (both severe and non-severe), and a claimant’s condition as a whole when assessing a claimant’s RFC. See Buckwalter,⁵ F. 4th at 1320; Schink, 935 F. 3d at 1268-69. But here, the ALJ’s decision shows that he fulfilled that obligation.

Rather, 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. 21-12732, 2022 WL

1022730, at *2 (11th Cir. Apr.⁵, 2022) (citing 20 C.F.R. § 404.1520c(c)(1)-(5)).

Supportability and consistency are the most important factors. 20 C.F.R. §§ 404.1520c(a), 416.920c(a).

Although an ALJ is no longer required to provide a specific weight to medical opinions – a requirement under the prior regulation, see 20 C.F.R. §§ 404.1527, 416.927 – the ALJ still needs to articulate how persuasive the ALJ finds medical opinions and prior administrative medical findings to be. 20 C.F.R. §§ 404.1520c(b), 416.920c(b).

In doing so, the ALJ must explain how he considered the factors of supportability and consistency, but the ALJ is generally not required to explain how he considered the other three factors. 20 C.F.R. §§ 404.1520c(b)(2)-(3), 416.920c(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), 416.920c(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), 416.920c(c)(2).

Here, in addition to the prior administrative medical findings at the initial and reconsideration levels (Tr. 118-49, 152-89), medical opinions regarding Plaintiff’s mental limitations were provided by Aaron Williams, Psy.D. (Tr. 1263-70) and Colette Valette, Ph.D. (Tr. 105-11).

The state agency psychological consultants assessed a moderate limitation in the area of concentrating, persisting, or maintain pace, and they assessed a mild limitation in the other three areas. Tr. 125, 141, 161, 180. Dr. Williams assessed no limitation in interacting with others, a mild-to-moderate limitation in understanding, remembering, or applying information, and moderate limitations in concentrating, persisting, or maintaining pace and in adapting or managing oneself. Tr.

1267.

Finally, Dr. Valette, who appeared at the October 2021 hearing, testified that Plaintiff does not have severe mental health issues, and Dr. Valette opined that Plaintiff has a mild limitation in all four functional areas. Tr. 106-08.

Plaintiff contends that the ALJ erred by assessing mild limitations in all four functional areas when, according to Plaintiff, all of the opinion evidence existing prior to Dr. Valette’s testimony revealed a higher degree of impairment, at least in the area of concentrating, persisting, or maintaining pace. Plaintiff points out that unlike Dr. Valette, both Dr. Williams and the state agency psychological consultants assessed moderate limitations in the area of concentrating, persisting, or maintaining pace. But what Plaintiff fails to do is to show that (1) the ALJ did not evaluate the opinion evidence in accordance with the applicable regulations, or (2) that the ALJ’s evaluation of the opinion evidence is not supported by substantial evidence. Significantly, the ALJ followed the regulations and pointed to evidence that reasonably supports his evaluation.

First, the ALJ summarized the prior administrative medical findings, finding them to be “somewhat persuasive.” Tr.

19. He explained: As for supportability, the State agency medical consultants are experienced in evaluating Social Security disability claims and they cited objective medical and other evidence at that time in support of their opinions, but they did not have the opportunity to review updated medical evidence. As for consistency, their opinions are somewhat consistent with the record, which shows a diagnosis for mild neurocognitive disorder and generalized anxiety disorder, but the claimant is capable of a wide array of activities of daily living (Exhibit 7F, p. 1; Exhibit 9F, p. 3).

Further, treatment records routinely indicated appropriate mood and affect (Exhibit 5F, p. 12; Exhibit 32F, p. 4; Exhibit 33F, pp. 3, 53; Exhibit 36F, pp. 3, 15; Exhibit 38F, p. 3).

Treatment records also indicated that the claimant is generally cooperative with intact attention and concentration, logical thought processes, and normal thought content (Exhibit 31F, pp. 2, 5, 8, 12, 14, 20, and so on; Exhibit 33F, pp. 30, 53; Exhibit 35F, pp. 2, 5, 14, 20).

Tr.

19. As the foregoing demonstrates, the ALJ addressed persuasiveness, supportability, and consistency in accordance with 20 C.F.R. §§ 404.1520c and 416.920c, and he pointed to evidence to support his evaluation.

Second, the ALJ summarized interrogatory responses provided by Dr. Williams, finding his opinion to be “not entirely persuasive.” Tr.

20. The ALJ explained: As for supportability, the examiner had an overview of some of the medical evidence in the file, and he was able to evaluate the data and opinions provided by treating and consulting medical sources at that time to support his opinion, but he did not have the opportunity to review updated medical records. As for consistency, this opinion is not entirely consistent with the record, including updated medical records, which show the claimant is generally cooperative with intact attention and concentration, logical thought processes, and normal thought content (Exhibit 31F, pp. 2, 5, 8, 12, 14, 20, and so on; Exhibit 33F, pp. 30, 53; Exhibit 35F, pp. 2, 5, 14, 20). Tr.

20. Again, the ALJ complied with the regulations and supported his evaluation with record evidence. Next, the ALJ summarized Dr. Valette’s hearing testimony and found her opinion to be “persuasive.” Tr.

20. The ALJ explained:

As for supportability, the medical expert studied and reviewed the entire medical record. Thus, she had a comprehensive overview of all medical evidence in the file and was able to evaluate the data and opinions provided by treating and consulting medical sources. As such, her opinions and conclusions are reasonable, supportable, and convincing. As for consistency, this opinion is generally consistent with the record, which shows the claimant is generally cooperative with appropriate attention abilities, logical thought processes, and normal thought content (Exhibit 31F, pp. 2, 5, 8, 12, 14, 20, and so on; Exhibit 33F, pp. 30, 53; Exhibit 35F, pp. 2, 5, 14, 20).

Tr. 20. Thus, the ALJ once again addressed persuasiveness, supportability, and consistency as required.² While Plaintiff contends that the opinion evidence overwhelmingly demonstrated more than mild limitations in the area of concentrating, persisting, or maintaining pace, the fact is that only two opinions and the prior administrative findings opined on the degree of Plaintiff’s mental impairments.³ On one hand, the state agency consultants and one opinion (Dr. Williams) assessed

However, the cases Plaintiff cites in support of this contention (which are not binding) do not mandate the result Plaintiff seeks, and Plaintiff has failed to show (or argue) that Dr. Valette was not qualified to testify as a medical expert in this matter. In fact, at the October 2021 hearing, Plaintiff’s counsel stipulated that Dr. Valette was qualified to testify as a medical expert. Tr.