Warren v. Astrue (CONSENT)

Filing 14

MEMORANDUM OPINION. Signed by Honorable Judge Charles S. Coody on 3/21/14. (scn, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
ELAINE WARREN,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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CIVIL ACTION NO.1:12-cv-830-CSC
(WO)

MEMORANDUM OPINION
I. Introduction
On October 2, 2006, Elaine Warren filed an application for a period of disability and
disability insurance benefits, alleging disability beginning September 28, 2006. (R. 9). After
the claim was initially denied, Warren filed a timely written request for a hearing before an
administrative law judge (“ALJ”), who, after a hearing on July 28, 2008, denied the claim.
(R. 9, 21). Following Warren’s appeal of an affirmance by the Appeals Council, this court
remanded the case on the motion of the Commissioner, and the Appeals Council remanded
the case to the ALJ. M.D. Ala. Case No. 1:09-cv-897 (R. 613, 617-620). Because another
ALJ had found, on a subsequent application, that Warren was disabled as of August 27,
2008, the sole issue before the ALJ on remand of this case was whether Warren was disabled
from September 28, 2006 until August 27, 2008. (R. 520, 619). Following a hearing on
February 26, 2011, the ALJ issued an opinion on March 2, 2011, finding that Warren was not
disabled during the time period at issue. (R. 530). On July 17, 2011, the Appeals Council

denied Warren’s request for administrative review.

(R. 652).

The ALJ’s decision

consequently became the final decision of the Commissioner of Social Security
(“Commissioner”). See Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986).1 The case
is now before the court for review pursuant to 42 U.S.C. §§ 405 (g) and 1383(c)(3). Pursuant
to 28 U.S.C. § 636(c), the parties have consented to entry of final judgment by the United
States Magistrate Judge. Based on the court’s review of the record in this case and the briefs
of the parties, the court concludes that the decision of the Commissioner should be affirmed.
II. Standard of Review
Under 42 U.S.C. § 423(d)(1)(A) a person is entitled to disability benefits when the
person is unable 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 . . .
To make this determination2 the Commissioner employs a five-step, sequential
evaluation process. See 20 C.F.R. §§ 404.1520, 416.920.
(1) Is the claimant presently unemployed?
(2) Is the claimant’s impairment severe?
(3) Does the claimant’s impairment meet or equal one of the specific
impairments set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1?
1

Pursuant to the Social Security Independence and Program Improvements Act of 1994, Pub.L. No.
103-296, 108 Stat. 1464, the functions of the Secretary of Health and Human Services with respect to Social
Security matters were transferred to the Commissioner of Social Security.
2

A “physical or mental impairment” is one resulting from anatomical, physiological, or psychological
abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.
20 CFR §§ 404.1508; 20 CFR § 416.908.

2

(4) Is the claimant unable to perform his or her former occupation?
(5) Is the claimant unable to perform any other work within the economy?
An affirmative answer to any of the above questions leads either to the next
question, or, on steps three and five, to a finding of disability. A negative
answer to any question, other than step three, leads to a determination of “not
disabled.”
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).3
The standard of review of the Commissioner’s decision is a limited one. This court
must find the Commissioner’s decision conclusive if it is supported by substantial evidence.
Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997); 42 U.S.C. § 405(g). “Substantial
evidence is more than a scintilla, but less than a preponderance. It is such relevant evidence
as a reasonable person would accept as adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 401 (1971). A reviewing court may not look only to those parts of
the record which supports the decision of the ALJ, but instead must view the record in its
entirety and take account of evidence which detracts from the evidence relied on by the ALJ.
Hillsman v. Bowen, 804 F.2d 1179 (11th Cir. 1986).
[The court must] . . . scrutinize the record in its entirety to determine the
reasonableness of the [Commissioner’s] . . . factual findings . . . No similar
presumption of validity attaches to the [Commissioner’s] . . . legal conclusions,
including determination of the proper standards to be applied in evaluating
claims.
Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).

3

McDaniel v. Bowen, 800 F.2d 1026 (11th Cir. 1986) is a supplemental security income case (SSI).
The same sequence applies to disability insurance benefits. See Sullivan v. Zebley, 493 U.S. 521, 525 n.3
(1990). Cases arising under Title II are appropriately cited as authority in Title XVI cases. See, e.g., Sullivan,
493 U.S. at 525 n.3; Ware v. Schweiker, 651 F.2d 408 (5th Cir. 1981) (Unit A).

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III. The Issues
A. Introduction. Warren was born on January 31, 1956, and was 50 years old on the
alleged date of disability onset. (R. 31). She has a 12th grade education. (R. 542). Her past
employment history includes work as a garment inspector and door assembler. (R. 46).
Warren alleges that she is disabled due to the following medical conditions: breast cancer in
remission following bilateral mastectomies and reconstructions, osteoarthritis, hypertension,
gastroesophageal reflux disease, degenerative disc disease, degenerative joint disease,
chronic tendonitis and bursitis in her right shoulder, lymphedema, arthritis in her knee,
depression, anxiety, posttraumatic stress disorder, and paranoid personality disorder. (R. 522,
554).
B.

The Findings of the ALJ
The ALJ found that Warren met the insured status requirements of the Social Security

Act through December 31, 2010. (R. 522). Further, the ALJ found that Warren had the
following severe impairments:
breast cancer in remission status post bilateral mastectomies and
reconstructions, osteoarthritis, hypertension, gastro[]esophageal reflux disease,
degenerative disc disease cervical spine, degenerative joint disease, chronic
tendonitis/bursitis right shoulder, depression, anxiety, posttraumatic stress
disorder, and paranoid personality disorder.
(R. 522).
The ALJ concluded that Warren did not have an impairment or combination of
impairments that met or medically equals any of the listed impairments in 20 C.F.R. Part 404,
4

Subpart P, Appendix 1. (R. 523).
The ALJ found that, through August 26, 2008, Warren
had the residual functional capacity to perform light work as defined in 20
CFR 404.1567(b) except that [Warren] cannot push against resistance with her
right upper extremity or bilateral lower extremities. [Warren] cannot reach
overhead with her right upper extremity but she is not precluded from reaching
with her right upper extremity. [Warren] cannot climb ladders, ropes, or
scaffolds. [Warren] can rarely, i.e., no more than 10% of the workday, climb
ramps, stairs, crouch, kneel, or crawl. [Warren] may alternate between sitting
and standing at the workstation throughout the workday. [Warren] can write
for no more than 10% of the workday. [Warren] can perform simple, routine,
tasks. [Warren] may be off task or work at a nonproductive pace up to 5% of
the workday due to deficits in concentration, persistence or pace caused by
pain and psychological factors.
(R. 524-25).
The ALJ also found that, “[t]hrough August 26, 2008, considering [Warren’s] age,
education, work experience, and residual functional capacity, there were jobs that existed in
significant numbers in the national economy that [Warren] could have performed.” (R. 529).
Specifically, the ALJ found that, during the relevant time period, Warren had the residual
functional capacity to perform the jobs of
ticket taker/seller, DOT Code 211.467-030 (approximately 450,000 jobs in the
national economy, 1,250 in the state); medical supplies packer, DOT Code
920.686-038 (approximately 325,000 jobs in the national economy, 800 in the
state); and car wash attendant, DOT Code, 915.667-010 (approximately
300,000 jobs in the national economy, 1,200 in the state).
(R. 530).
Therefore, the ALJ found that Warren was not disabled from the alleged onset date
of September 28, 2006, through August 26, 2008. (R. 530).
5

C.

Issues.
As stated by Warren, the issues for review are as follows:
1.

Whether the ALJ committed reversible error in failing to acknowledge
and provide good cause to reject the treating physicians’ opinions;

2.

Whether the ALJ erred by failing to base her finding on substantial
evidence;

3.

Whether the ALJ erred in [im]properly evaluating the claimant’s
residual functional capacity (in finding that the claimant is capable of
performing light work on a full time basis); and

4.

Whether the ALJ sustained her burden of establishing that the re is
other work in the national economy that the claimant is capable of
performing in accordance with the Appeals Council’s remand order.

(Doc. 11 p. 1).
IV. Discussion
A.

The ALJ did not err in rejecting medical opinions of treating medical sources
that were unsupported by the medical evidence or that were on issues reserved
to the Commissioner.

1.

Warren’s Mental State and the Psychotherapist’s Opinion
On January 24, 2006, Dr. Douglas H. Jones noted that Warren stated “she is under a

great deal of stress recently.” (R. 375). Dr. Jones diagnosed Warren with fatigue, insomnia,
and anxiety, but did not prescribe medications for those conditions. (R 375). Dr. Jones
directed Warren to return in two months “for follow-up and health maintenance issue review,
earlier of course” if needed. (R. 376)
On January 23, 2006, Warren’s oncologist made the following treatment notes and

6

observations:
Elaine is doing well. She is in a delightful mood today. She is complaining
of getting older. Her 50th birthday is next week. She is in good spirits. . . .
Assessment: Stage II-B, estrogen receptor negative breast cancer; status post
TAC chemotherapy, now 3 ½ years since diagnosis without evidence of
recurrence . . . She normally feels somewhat anxious when here in the
oncology office.
(R. 299).
On March 21, 2006, during a follow-up visit, Dr. Jones noted “no mental status
change. No sleep problems except for some fatigue and only occasional mild insomnia, but
nothing profound.” (R. 374).
On October 31, 2007, during a routine examination, a nurse practitioner noted that
Warren did not appear to be uncomfortable and exhibited no psychological symptoms. (R.
448).
During routine examinations, on November 8, 2007, November 29, 2007, April 11,
2008, and May 9, 2008, nurse practitioner Candace M. Hobbs noted “no psychological
symptoms.” (R. 450, 454, 463, 466).
On June 2, 2008, Warren referred herself to psychotherapist Dr. Theron Covin, Ed.D.,
for evaluation and treatment. (R. 424). Covin is not a licenced physician or psychologist.
After evaluating Warren, Dr. Covin issued a report in which he concluded as follows:
Diagnostic Impressions:

Axis 1: Post Traumatic Stress Disorder
Axis II: Paranoid Personality Disorder
Axis III: See medical history
Axis IV: Status post breast cancer;
personal health issues; chronic
7

health problems of husband.
Axis V: 45
Prognosis is poor. Her conditions seem chronic. She is totally and permanently
disable[d].
(R. 424-30).
On June 3, 2008, Warren complained of depression and anxiety to Nurse Practitioner
Hobbs. Nurse Hobbs made the following findings:
History of present illness: The Patient is a 52 year old female. Source of
patient information was patient. . . . Anxiety and depression. No stated intent
to commit suicide and no previous suicide attempt. No homicidal thoughts pt
states she has been having depression, sadness, anxiety, panic attacks off and
on x 1 year, getting worse and states she has not felt like talking with me
(PCM) about theses issues. Says she lost sister to cancer, dad died last year to
cancer, brother was shot, and another sister also deceased. Pt talked to Dr. TM
Covin yesterday and he suggested that she come here for medication and he
would consider to counsel. Assured both pt and husband that referral is not
needed. Checked and Dr. Covin in not network provider - pt and husband
aware.
....
Psychological symptoms: Insomnia.
....
Mental Status Findings: • Mood was depressed. • Mental status was normal.
• Appearance was normal. • Clothing was not dishevelled. • Mood was not
anxious. • Affect was not inappropriate.
(R. 473).
Nurse Hobbs diagnosed depression and anxiety, instructed Warren to “continue
counseling as planned” and return “for any concerns otherwise [follow up] in one month to

8

discuss treatment.” (R. 473). Nurse Hobbs prescribed Aprazolam and Fluoxetine for
depression and anxiety. (R. 473).
On July 7, 2008, when Warren returned for a follow-up visit, Nurse Hobbs noted that
Warren “continues with therapy for depression issues. Doing well.” (R. 477).
On October 1, 2008, Nurse Hobbs noted: “Depression med refilled. [Warren] feels
the current medication(s) are working well. [Warren] has no complaints or problems with the
medications.” (R. 493).
On October 14, 2008, Nurse Hobbs noted: “Depression med refilled. [Warren] feels
the current medications are working well. [Warren] has no problems with the medications.”
(R. 488).
If Dr. Covin’s opinion constituted the opinion of an acceptable medical source, 20
C.F.R. § 404.1513, the ALJ would have been obliged to give substantial weight to that
opinion. Phillips v. Barnhart, 357 F.3d 1232, 1241 (11th Cir. 2004). But Dr. Covin is not
an acceptable medical source within the meaning of the regulations; thus, the ALJ cannot be
faulted for not giving Covin’s opinion weight.
Moreover, an ALJ is entitled to disregard the opinion of a treating physician or an
acceptable medical source when the record substantially supports the conclusion that “the (1)
treating physician’s opinion was not bolstered by the evidence; (2) evidence supported a
contrary finding; or (3) treating physician’s opinion was conclusory or inconsistent with the
doctor’s own medical records.” Phillips v. Barnhart, 357 F.3d 1232, 1241 (11th Cir. 2004).

9

To begin with, Dr. Covin’s statement that Warren “is totally and permanently disable[d],”
(R. 430), R. 430, is an opinion on an issue that is reserved to the Commissioner and is not
a medical opinion entitled to any special weight. 20 C.F.R. § 404.1527(d)(1).4 And, in this
case, the ALJ rejected Dr. Covin’s opinion about the severity and disabling effects of
posttraumatic stress disorder, anxiety, and depression, on the following grounds:
As for the claimant’s alleged depression, anxiety and hallucinations, the
undersigned notes that the events which reportedly triggered her symptoms
occurred mostly in the remote past. There is no longitudinal history of
treatment. The claimant has never made any such complaints to any of her
primary care physicians, and none of them reported observing any symptoms
of anxiety or depression. In particular her oncologist, Dr. Dunn, paid specific
attention to her mood and commented on it, but never described any significant
depression or anxiety (Exhibits 18F, 29F). The claimant’s primary care
physicians, none of whom are mental health specialists, diagnosed the claimant
with depression and anxiety in June 2008 (Exhibit 30F) apparently after she
had seen Mr. Covin the previous day and was referred for medications. Even
then, the claimant did not report any hallucinations or paranoia to her primary
care physician. The diagnoses of anxiety and depression were made based
entirely on the claimant’s subjective complaints, as no clinical findings are
recorded. In general, in spite of her extensive medical treatment, the claimant
seems to have remained quite well-adjusted, and she never complained of any
mental or emotional symptoms at all until just before the initial hearing. The
claimant worked for many years despite her alleged depression and anxiety.
The claimant’s recent complaints of psychotic symptoms are not considered
credible. The claimant may have some symptoms of anxiety and depression,
but there is no credible evidence that any such symptoms have an appreciable
effect on her functioning. The undersigned has nonetheless given the claimant
4

“Medical source opinions on issues reserved to the Commissioner. Opinions on some issues, such
as the examples that follow, are not medical opinions . . . but are, instead, opinions on issues reserved to the
Commissioner because they are administrative findings that are dispositive of a case; i.e., that would direct
the determination or decision of disability. [] Opinions that you are disabled. We are responsible for making
the determination or decision about whether you meet the statutory definition of disability. In so doing, we
review all of the medical findings and other evidence that support a medical source’s statement that you are
disabled. A statement by a medical source that you are ‘disabled’ or ‘unable to work’ does not mean that we
will determine that you are disabled.” 20 C.F.R. § 404.1527(d)(1).

10

the benefit of the doubt and limited her to simple, routine tasks with
nonproductive pace work permitted up to 5% of the workday.
....
Given the utter lack of any other objective or anecdotal evidence suggesting
any significant emotional disturbance, the undersigned gives little weight to
Mr. Covin’s report or conclusions. According to the Diagnostic and Statistical
Manual of Mental Disorders (4th edition) (DSM-IV), in light of a medicolegal
context of presentation and the motive of obtaining financial compensation,
the possibility of false or exaggerated symptoms must be considered. Instead,
subjective complaints and test results were taken at face value. Mr. Covin’s
diagnoses of posttraumatic stress disorder and paranoid personality disorder
and his conclusion are not supported by credible objective findings or by the
balance of the medical evidence of record. Moreover, Mr. Covin’s conclusion
that the claimant is disabled addresses an issue reserved to the Commissioner.
In sum, the above residual functional capacity assessment is supported by a
preponderance of the most credible objective evidence of record, including
treatment notes, minimal objective diagnostic findings, and a dearth of mental
health treatment.
(R. 527-28).
The ALJ’s stated reasons for rejecting Dr. Covin’s opinion are supported by the
record. The court notes that, prior to referring herself to Dr. Covin (who noted that Warren
had “applied for Social Security benefits due to her past and current health problems”), the
extensive medical record contains only limited instances of treatment for mild anxiety,
notably during times of stress (R. 299, 375), and “mild insomnia, but nothing profound.” (R.
374).

As the ALJ indicated in her opinion (R. 527), Warren’s complaints of severe

psychological symptoms occurred in June 2008 (R. 424-30, 473) and the first administrative
hearing in this case occurred on July 28, 2008 (R. 621). Thereafter, contrary to Dr. Covin’s

11

opinion that Warren’s prognosis was so poor that she was totally and permanently disabled
due to mental impairments, the medical record establishes that, after consulting Dr. Covin
and Nurse Hobbs, Warren reported that she was “doing well” on medications for anxiety and
depression, and that the medications were working well. (R. 477, 488, 493). Accordingly,
the ALJ’s clearly-articulated reasons for rejecting Dr. Covin’s opinion are supported by the
evidence and constitute “good cause” for disregarding that opinion. Phillips, 357 F.3d at
1241.
2.

Dr. Dunn’s January 16, 2009 Letter
On January 16, 2009, Dr. Dunn wrote a letter “to whom it may concern” stating that

Warren suffered “some limitation in her activities due to surgery and chemotherapy and
breast reconstruction surgery in 2002 and 2003” and that “more recently she has been limited
in terms of her right upper extremity weakness and swelling and decreased range of motion.”
(R. 720). Dr. Dunn further stated: “Due to the chronicity of these complaints and the original
diagnosis of breast cancer that necessitated the chemotherapy, surgery, and reconstruction,
it is my opinion that [Warren] is totally disabled and will not have a recovery of the right
upper extremity function that will allow her to maintain or obtain gainful employment.” (R.
720).
Warren contends that the ALJ erred in not acknowledging Dr. Dunn’s January, 16,
2009 letter in her opinion. However, Dr. Dunn’s letter, which includes statements about
“recent” right upper extremity limitations, postdates the relevant time period, which is from

12

September 28, 2006 until August 27, 2008. (R. 720). The Commissioner has already
determined that Warren was disabled after August 27, 2008.
Further, to the extent that Dr. Dunn opined in 2009 that in 2002 and 2003, Warren
suffered from breast cancer, mastectomy, and breast reconstruction surgery, and that, “more
recently,” she had suffered from severe limitations in her right upper extremity, the ALJ
clearly did not discount these limitations and, in fact, found them to be “severe impairments.”
(R. 522).

However, an opinion from a medical provider on issues reserved to the

Commissioner, such as opinions regarding the claimant’s residual functional capacity and
opinions that a claimant is “totally disabled,” is not a medical opinion and is not due any
significant weight. 20 CFR § 404.1527(d). Thus, the ALJ was not required to articulate
specific reasons constituting “good cause” for failing to accord substantial weight to Dr.
Dunn’s opinion that, due to a history of breast cancer and right upper extremity limitations,
Warren was “totally disabled” and would not recover sufficient right upper extremity
function to allow her to maintain or obtain gainful employment. Id.; Lewis v. Callahan, 125
F.3d 1436, 1440 (11th Cir. 1997) (holding that, in requiring the ALJ to afford substantial
weight to a physician’s opinion absent “good cause” to the contrary, “we are concerned . .
. with the doctors’ evaluations of [the claimant’s] condition and the medical consequences
thereof, not their opinions of the legal consequences of [the claimant’s] condition. Our focus
is on the objective medical findings made by each doctor and their analysis based on those
medical findings.”).

13

Further, the court has reviewed the record and finds that the evidence substantially
supports the ALJ’s stated reasons for her determination regarding the functional limitations
caused by Warren’s breast cancer, mastectomy, breast reconstruction surgery, and pain in her
right shoulder. Accordingly, the ALJ did not commit reversible error by failing to state
reasons for affording no special weight to Dr. Dunn’s opinion that Warren was “ totally
disabled and will not have a recovery of the right upper extremity function that will allow her
to maintain or obtain gainful employment.” (R. 720). 20 CFR § 404.1527(d).
B.

The ALJ Did Not Err by Partially Crediting Warren’s Subjective Complaints
of Pain.
Warren argues that the ALJ erred in discounting her subjective complaints of pain.

Warren does not specifically identify the subjective pain testimony to which she refers;
however, she claims that “medical records and testimony offer evidence of underlying
medical conditions including [d]egenerative [j]oint [d]isease, arthritis, [and] severe disc
deterioration of her back as well as post breast cancer difficulties.” (Doc. 11 p. 10).
“[A] three part ‘pain standard’ . . . applies when a claimant attempts to establish
disability through his or her own testimony of pain or other subjective symptoms. The pain
standard requires (1) evidence of an underlying medical condition and either (2) objective
medical evidence that confirms the severity of the alleged pain arising from that condition
or (3) that the objectively determined medical condition is of such a severity that it can be
reasonably expected to give rise to the alleged pain.” Holt v. Sullivan, 921 F.2d 1221, 1223
(11th Cir. 1991). When a claimant presents subjective testimony that meets this standard,
14

the ALJ has the discretion to determine whether that testimony is credible; however, “[i]f the
ALJ decides not to credit such testimony, he must articulate explicit and adequate reasons
for doing so.” Id.
In this case, the ALJ found that Warren had submitted subjective testimony of pain
accompanied by evidence of underlying medical conditions that could reasonably be
expected to cause her alleged symptoms. (R. 525). However, the ALJ stated the following
reasons for concluding that Warren’s testimony was not credible to the extent that it
conflicted with the ALJ’s residual functional capacity determination:
As for the claimant’s subjective allegations of pain, the claimant’ s allegations
are not fully credible. Although the claimant has degenerative joint disease
with a history of treatment for mild osteoarthritis, tendonitis and bursitis, the
clinical findings have been minimal (Exhibits 21F, 27F, 30F), as have the
results of x-rays and other diagnostic work-up (Exhibits 13F, 20F, 21F, 23F).
Treatment modalities have been limited to analgesic medication, a knee
injection administered in September 2006 (Exhibit 21F), and physical therapy
during November 2006 (Exhibit 22F). Treatment notes generally show normal
range of movement in all extremities (Exhibit 30F). Although the claimant
occasionally reported flare-ups of moderate pain, treatment notes also show
that the claimant regularly reported no pain or only mild pain, was in no acute
distress and released with no limitations (Exhibit 30F). The undersigned
acknowledges that the claimant may have some problems using her right arm
and shoulder, but in light of the minimal objective findings, her complaints of
severe pain appear to be somewhat exaggerated. The undersigned has
nonetheless given the claimant the benefit of the doubt and limited her to light
work with no overhead reaching, no pushing against resistance with her right
upper extremity and writing no more than 10% of the workday. The
undersigned has likewise restricted the claimant from pushing against
resistance with her bilateral lower extremities, climbing ladder, ropes, and
scaffolds, and rarely climbing ramps, stairs, crouching, kneeling, and crawling
to accommodate her back and knee pain. The undersigned also notes that the
limitation to simple, routine tasks with nonproductive pace work permitted up
to 5% of the workday would also accommodate the claimant’s pain and any
15

associated difficulties concentrating.
Additionally, at the initial hearing, the claimant testified that her shoulder
problems originated with her cancer-related surgeries but treatment notes show
that the claimant tolerated the surgeries well (Exhibits 5F-12F, 17F) and did
not complain of any significant shoulder problems to her oncologist. Rather,
follow-up records from her gynecologist (Exhibits 17F and 28F), her
oncologist (Exhibits 18F and 29F), and her surgeon (Exhibit 19F) reflect a
good response to treatment without any complications. The claimant continued
to work in spite of breast cancer, only quitting when the plant where she
worked closed in May 2006. Although there is scant evidence to support her
allegations, the undersigned has given the claimant some benefit of the doubt
in including appropriate functional limitations in the residual functional
capacity finding.
With respect to the claimant’s alleged difficulties sitting, standing, and
walking for prolonged periods, although the record documents occasional
complaints of back and knee pain, there is no evidence of specific complaints
related to sitting, standing, or walking or evidence of treatment for these
difficulties. Rather, treatment notes show a normal gait, stance, and balance
(Exhibit 30F).
(R. 525-26).
The medical record substantially supports the findings of the ALJ with regard to the
credibility of Warren’s subjective testimony. In February, 2005, a routine yearly exam was
unremarkable and Warren was noted to be “doing well without any complaints.” (R. 247).
On January 24, 2006, Dr. Jones noted “[n]o gait or balance trouble. No knee joint or ankle
joint instability.” (R. 375).
On February 23, 2006, Dr. Sherry L. Roach noted
Elaine is in today for a recheck of her breasts. . . . No problems with her
breasts. PHYSICAL EXAM: Essentially unremarkable.
(R. 334).
16

On July 24, 2006, Dr. Dunn noted:
Elaine is doing well. She describes no bone pain or anorexia. She is not
bothered by lymphedema in either extremity. She has good results from her
bilateral breast reconstruction. . . . [F]or the most part, her bilateral breast
reconstruction . . . [has] heald nicely. . . . Extremities without edema.
(R. 298).
On September 28, 2006, the alleged onset date, Dr. Veneziano noted that Warren
is complaining of left swollen knee for three days, having a lot of discomfort.
Aleve bid helps some. She is also having some right knee pain as well as right
shoulder discomfort mostly in the morning some lymphedema. . . . . She is on
her knees a fair bit due to her job. She is not wearing any knee protection.
This is the likely source of her difficulties. Patient is instructed to use knee
protection consistently. She is also wearing shoes that have high, thin heel[s]
with no arch support or padding. When she demonstrated walking, she was not
able to keep her ankles straight. . . . Patient [had] good range of motion to the
right shoulder with some tenderness over the bursa and bicepital tendon.
There is an effusion with pain on range of motion to the left knee with a little
crepitus. The right knee has good motion, nearly no pain without motion. No
effusion.
(R. 372).
Dr. Veneziano diagnosed Warren with degenerative joint disease of the knees with
effusion on the left and bursitis and tendinitis in the right shoulder. He prescribed pain
medications and knee pads for work and appropriate foot wear at all times. (R. 372).
On October 5, 2006, Dr. Roach made the following treatment notes:
Elaine is in today for a recheck. She’s complaining of just generally not feeling
well. She states all of her joints are hurting. She’s actually now filed for
disability. No specific aches and pains, just generally feeling bad.
PHYSICAL EXAM: Reveals trace edema in her right upper extremity.
Mastectomy site looks good. Left breast is normal. There is no axillary
supraclavicular adenopathy. Abdominal exam is within normal limits.
17

....
PLAN: I am going to go ahead and set her up for a bone scan just to be sure
that she doesn’t have any significant metastatic disease, and then we will have
her return as needed.
(R. 333).
On October 19, 2006, Dr. Veneziano made the following observations:
Patient is complaining of left leg and back pain. She had a bone scan done
about 10 days ago, was negative . . . . Lodine and Ultram helped her but she
never got the knee pads. “I’m filing for disability.” She was told years ago
she had some kind of rotator cuff problem. She claims that she has cervical
disc disease, C5-C6-C7 level. She was seen by Dr. Becker. Conservative
treatment was contemplated and planned. Her knee improved a little after the
injection but then she claims it got worse.
....
She does have some tenderness about the left low back at about the L5 level.
Straight leg raise is questionable bilaterally. She is having more knee pain on
flexion and extension. Leg strength is symmetric and normal. . . .
IMPRESSION
1. Cervical and lumbosacral pain with history of cervical disk disease.
2. [Degenerative joint disease] of the lumbosacral spine.
3. Bursitis.
4. Tendinitits right shoulder.
5. DJD.
6. Questionable radicular symptoms.
7. History of breast cancer with negative bone scan.
(R. 369).
On November 14, 2006, Dr. Veneziano made the following notes:
Seen by ortho, getting physical therapy. Patient has gone there three times and
she said she is having some soreness. I have asked her to persist, that probably
doing some range of motion exercises [is] improving her endurance and she
is just getting some muscle fatigue. . . . Dr. Brooks offered no surgery or x18

rays. He did inject her shoulder. Letter from Dr. Brooks dated 10/31/06
reveals his impression to be right shoulder inflammation along with chronic
neck, back pain and mild knee arthritis. . . . MRI of the cervical spine with no
significant changes. No herniated disc.
....
IMPRESSION:
1. Hypertension . . . .
2. Joint pain, probably early osteoarthritis.
3. Bursitis.
4. Tendonitis.
(R. 369).
On December 6, 2006, Dr. Veneziano noted that Warren’s tendinitis was stable and
an “MRI of the shoulder last week was good. No rotator cuff tear. She is not getting
surgery.” (R. 434).

A December 20, 2006 radiology report indicated only “mild”

osteoarthritis in Warren’s left knee. (R. 399). On January 29, 2007, Dr. Dunn noted that
Warren had complained of “some bone pain this year for which she has been on a pain
medicine and as been seen by Dr. Brooks and Dr. Veneziano in Enterprise.” (R. 443). On
April 4, 2007, Dr. Veneziano noted that Warren’s bursitis and tendinitis were “stable with
medications.” (R. 433).
On July 30, 2007, Dr. Dunn noted:
Elaine has gotten married since her last visit. She is doing well and has no
health complaints. She is not having significant pain for arthritis but still is
concerned about discomfort in the right shoulder and back. . . . Range of
motion is adequate, but she still has referred to pain in the right shoulder.
History of arthritis evaluated with MRI and bone scans that are consistent with
arthritis and no evidence of bone metastasis. She still has referred pain that is
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frightening, and she often needs an anti-inflammatory for this but tries to avoid
narcotics.
(R. 442).
On September 18, 2007, Nurse Hobbs noted that Warren had “normal movement of
all extremities.” (R. 446). On October 31, 2007, Nurse Hobbs noted that Warren exhibited
“no muskuloskeletal symptoms.” (R. 448).
On October 31, 2007, Dr. Dunn noted, “Eliane is doing very well. She has no
complaints of right upper quadrant pain or nausea.” (R. 441).
On November 8, 2007, Nurse Hobbs noted that Warren complained of “left knee
tenderness for several days states ‘it’s just arthritis[.]’ She is ambulatory without difficulty[.]
Knee joint stiffness on the left. The knee did not suddenly ‘lock up,’ the kneecap does not
feel ‘out of place’ and no bone pain in the knee. No breast symptoms patient has history of
breast cancer, last chemo treatment in Dec[ember] 200[2]. Dr. Dunn is her oncologist. She
is doing well. . . . Normal movement of all extremities.” (R. 449-50, R. 503).
On November 29, 2007, Nurse Hobbs noted Warren had “is doing well - no
complaints . . . . normal movement of all extremities.” (R. 454). On December 26, 2007,
April 11, 2008, and May 9, 2008, Nurse Hobbs noted Warren had “normal movement of all
extremities.” (R. 459, 463).
On July 7, 2008, Nurse Hobbs noted that Warren was “[d]oing well. Says Motrin
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helps arthritis better than Etodolac. . . . Normal movement of all extremities.” (R. 477).
In sum, the extensive medical record substantially supports the ALJ’s determination
that, despite subjective complaints of severe limitations, Warren was functionally limited but
not totally disabled by pain due to degenerative joint disease, osteoarthritis, tendonitis,
bursitis, and her history of breast cancer treatment. (R. 525-26). Accordingly, the ALJ did
not err in discounting Warren’s subjective complaints of pain because, as the ALJ explained,
the medical record does not support the severity of those complaints. Holt, 921 F.2d at 1223
(holding that an ALJ has discretion to discredit a plaintiff’s subjective complaints as long as
he provides “explicit and adequate reasons for his decision”).
C.

The ALJ’s Residual Functional Capacity Determination is Supported by
Substantial Evidence.
The ALJ determined that, through August 26, 2008, Warren had the residual

functional capacity
to perform light work as defined in 20 CFR 404.1567(b) except that [Warren]
cannot push against resistance with her right upper extremity or bilateral lower
extremities. [Warren] cannot reach overhead with her right upper extremity but
she is not precluded from reaching with her right upper extremity. [Warren]
cannot climb ladders, ropes, or scaffolds. [Warren] can rarely, i.e., no more
than 10% of the workday, climb ramps, stairs, crouch, kneel, or crawl.
[Warren] may alternate between sitting and standing at the workstation
throughout the workday. [Warren] can write for no more than 10% of the
workday. [Warren] can perform simple, routine, tasks. [Warren] may be off
task or work at a nonproductive pace up to 5% of the workday due to deficits
in concentration, persistence or pace caused by pain and psychological factors.
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(R. 524-25).
“Light work involves lifting no more than 20 pounds at a time with frequent lifting
or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very
little, a job is in this category when it requires a good deal of walking or standing, or when
it involves sitting most of the time with some pushing and pulling of arm or leg controls. To
be considered capable of performing a full or wide range of light work, [the claimant] must
have the ability to do substantially all of these activities.” 20 CFR § 404.1567 (b).
Warren argues that she cannot perform light work because she cannot “sit, stand or
stand [sic] to a significant degree based on testimony and medical records that indicate that
she experiences severe pain in her should[er] when walking.” (Doc. 11 p. 12). The evidence
cited by Warren does not support the proposition that shoulder pain affects Warren’s ability
to sit, stand, or walk at any time, and particularly during the time period at issue. (R. 38-39,
125, 302).
Warren also argues that she cannot perform light work because “[m]edical records .
. . indicate that she cannot sit for most of the time and push and pull using arm and leg
control[s] due to arthritis, degenerative joint disease, tendinitis, and general pain.” (Doc. 11
p. 12). The evidence cited by Warren in support of this proposition, as well as the record as
a whole, does not indicate that Warren will be unable to alternate sitting and standing as
determined by the ALJ. Further, although the cited evidence indicates that Warren has pain
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that limits motion in her left knee, right hand, right shoulder, back, and neck (R. 39, 377, 398,
4595), the ALJ found that these limitations did limit Warren’s ability to push and pull leg
controls. (R. 524-25). The reasons stated by the ALJ, as well as the record as a whole,
substantially support the ALJ’s residual functional capacity determination.
Warren also argues that she cannot perform light work because she cannot “work at
a production rate described as physically demanding, which entails constant pushing or
pulling of materials [even though the weight of those materials is negligible] since she is
right-handed and using her left hand is awkward (R. 126) along with the ALJ finding that the
claimant cannot push against resistance with her right upper extremity or bilateral lower
extremities.” (Doc. 11 pp. 12-13) (sic). However, the ALJ credited Warren with limitations
in the ability to push against resistance with her right upper and bilateral lower extremities.
The evidence cited by Warren, which is not medical evidence, does not support the
proposition that Warren’s alleged awkwardness in using her left hand would prevent her
from performing a limited range of light work involving pushing or pulling of materials of
negligible weight at a production pace. (R. 126).
Warren argues that, because she allegedly cannot perform the full range of light work,
she can only perform sedentary work, and, therefore, the ALJ erred in concluding that she

5

Warren cites a medical record at R. 459 in support of her argument; this medical record indicates
only that, on December 26, 2007, Warren exhibited “normal movement of all extremities.” (R. 459).

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can perform a limited range of light work. (Doc. 11 pp. 11-13). However, Warren cites no
authority, and the court is aware of none, which supports the proposition that a claimant who
can perform less than a full range of light work is automatically limited to performing only
sedentary work. Cf. 20 CFR § 404.1545(a)(1) (“Your impairment(s), and any related
symptoms, such as pain, may cause physical and mental limitations that affect what you can
do in a work setting. Your residual functional capacity is the most you can still do despite
your limitations. We will assess your residual functional capacity based on all the relevant
evidence in your case record.” (emphasis added)).
The ALJ fully accounted for the limitations on Warren’s ability to perform the full
range of light work, and the reasons stated in the ALJ’s opinion, as well as the record as a
whole, substantially support that determination. Therefore, the ALJ did not err in finding that
Warren had the residual functional capacity to perform less than a full range of light work.

D.

The ALJ Did Not Err in Relying on the Testimony of the Vocational Expert
The ALJ determined that Warren was unable to perform her past relevant work.

Therefore, the ALJ proceeded to the next step of the sequential analysis, at which a finding
of disability is required unless the ALJ “articulate[s] specific jobs that the claimant is able
to perform,” in light of the claimant’s residual functional capacity, age, education, and work
experience. Wilson v. Barnhart, 284 F.3d 1219, 1227 (11th Cir. 2002). “[T]his finding must
24

be supported by substantial evidence, not mere intuition or conjecture.” Id.
In this case, the ALJ determined that, through August 26, 2008, Warren had the
residual functional capacity to perform light work with some limitations, including the
limitation that she “cannot reach overhead with her right upper extremity but she is not
precluded from reaching with her right upper extremity.” (R. 524-25). Therefore, in order
to rely on the testimony of the vocational expert (“VE”) in determining whether a significant
number of jobs existed in the national economy that Warren could have performed, the ALJ
was required to include in her hypothetical questions to the VE the limitation that Warren
cannot reach overhead but was not precluded from reaching with her right upper extremity.
See Wilson v. Barnhart, 284 F.3d 1219, 1227 (11th Cir. 2002) (“In order for a vocational
expert’s testimony to constitute substantial evidence, the ALJ must pose a hypothetical
question which comprises all of the claimant’s impairments.”).
In this case, the ALJ asked the VE to assume the limitations of the ALJ’s residual
functional capacity determination. This hypothetical included the limitation that Warren
“should not perform overhead reaching with the right dominant upper extremity” although
the ALJ specified that Warren was otherwise “not preclude[d] [from] reaching . . . with the
right upper extremity.” (R. 561-62, 566). The VE testified that, given those restrictions,
Warren could perform the jobs of ticket taker/seller, medical supplies packer, and car wash
attendant. (R. 567). The VE confirmed that his testimony in this regard was “consistent with
25

the Dictionary of Occupational Titles” (“DOT”). (R. 567).
Warren argues, however, that the DOT specifies only that the jobs of ticket
taker/seller, medical supplies packer, and car wash attendant require “reaching.” As the VE
testified, the word “reaching” is used throughout the DOT to refer to extending the arms
away from the body in any direction; the DOT does not distinguish between overhead
reaching and reaching in any other direction. (R. 564). According to Warren, because the
DOT is not more specific about the directional reaching requirements of the jobs of ticket
taker/seller, medical supplies packer, and car wash attendant, the VE could not reasonably
have testified that these particular jobs require no overhead reaching with the right arm.
The law does not support Warren’s theory that a VE cannot provide more specific
information about the reaching requirements of a job than is contained within the DOT. “The
DOT ‘is not the sole source of admissible information concerning jobs,’” and “the SSA itself
does not consider the DOT dispositive,” Jones v. Apfel, 190 F.3d 1224, 1230 (11th Cir. 1999)
(quoting Barker v. Shalala, 40 F.3d 789, 795 (6th Cir.1994)). One “vital” function of a VE
is to “supplement the DOT data” where the DOT provides insufficient detail regarding job
requirements. Jones, 190 F.3d at 1230.
Here, the VE specifically stated that his testimony was consistent with the DOT (R.
567), and there is simply no basis to conclude that, contrary to the testimony of the VE, the
“reaching” requirement referenced in the DOT necessarily refers to overhead reaching with
26

the right upper extremity. Moreover, the Eleventh Circuit has held that reliance on the DOT
is strictly within the discretion of the ALJ and “an ALJ may rely solely on the VE’s
testimony,” even where the VE’s testimony conflicts with the DOT. Id. Further, the court
notes that the VE specifically stated that he had personally “performed at least one, if not
more, ergonomic job studies” on the job of ticket taker/seller “in the past ten years.” (R.
564). The VE’s testimony supplements the information contained in the DOT and constitutes
substantial evidence that the jobs of ticket taker/seller, medical supplies packer, and car wash
attendant require no overhead reaching with the right upper extremity. Jones, 190 F.3d at
1230 (quoting Dictionary of Occupational Titles, Special Notice at xiii (4th ed.1991)) (“The
DOT itself states that it is not comprehensive. It provides occupational information on jobs
in the national economy, and it instructs ‘DOT users demanding specific job requirements
[to] supplement th[e] data with local information detailing jobs within their community.’”).
Accordingly, the ALJ did not err in relying on the testimony of the VE to supplement
the information available in the DOT regarding the overhead reaching requirements of the
jobs of ticket taker/seller, medical supplies packer, and car wash attendant. Jones, 190 F.3d
at 1230 (“[T]he ALJ should supplement the DOT data with local information detailing jobs
in the regional community. The VE provides this vital information.” (emphasis added)); see
also Wilson, 284 F.3d at 1227-28 (“The ALJ properly utilized the . . . testimony of the VE
in finding that a significant number of jobs exist in the economy that [the claimant] could
27

perform. Also, the record is devoid of any objective medical evidence to support [the
claimant’s] subjective assertions of [shoulder] pain and extreme limitations. . . . [T]he ALJ’s
decision was supported by substantial evidence.”).
V. Conclusion
For the reasons as stated, the court concludes that the decision of the Commissioner
denying benefits to Warren should be affirmed. See Landry v. Heckler, 782 F.2d 1551,
1551-52 (11th Cir. 1986) (“Because the factual findings made by the [ALJ] . . . are supported
by substantial evidence in the record and because these findings do not entitle [the claimant]
to disability benefits under the appropriate legal standard, we affirm.”).
The Court will enter a separate final judgment.
Done this 21st day of March, 2014.

/s/Charles S. Coody
CHARLES S. COODY
UNITED STATES MAGISTRATE JUDGE

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