Yates v. Social Security Administration, Commissioner

Filing 12

MEMORANDUM OF DECISION. Signed by Judge R David Proctor on 8/24/2016. (AVC)

FILED
2016 Aug-24 AM 09:17
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION

HEATHER ANN YATES,
Plaintiff
v.
CAROLYN W.COLVIN, Acting
Commissioner of Social Security
Defendant

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Case No.: 4:15-CV-2234-RDP

MEMORANDUM OF DECISION
Plaintiff Heather Ann Yates brings this action pursuant to Sections 205(g) and 1631(c)(3)
of the Social Security Act (the “Act”), seeking review of the decision of the Commissioner of
Social Security (“Commissioner”) denying her claims for a period of disability, disability
insurance benefits (“DIB”), and Supplemental Security Income (“SSI”). See 42 U.S.C. §§
405(g) and 1383(c). Based on the court’s review of the record and the briefs submitted by the
parties, the court finds that the decision of the Commissioner is due to be affirmed.
I.

Proceedings Below
Plaintiff filed her application for DIB and SSI on June 7, 2012 in which she alleged that

disability began on April 1, 2009. (Tr. 173-77). She later moved to amend her alleged onset
date to October 9, 2009. (Tr. 197). On October 2, 2012, the Social Security Administration
found Plaintiff was not disabled and denied her claim. (Tr. 77). Plaintiff requested a hearing
before an Administrative Law Judge. (Tr. 108). Her request was granted on November 30, 2012.
(Tr. 110). Administrative Law Judge Renita Barnet-Jefferson conducted a hearing. (Tr. 117-22).
In her decision, dated May 2, 2014, the ALJ determined that Yates had not been under a

disability within the meaning of sections 216(i), 223 (d) or 1614(a)(3)(A) of the Social Security
Act since April 1, 2009. (Tr. 63). On May 13, 2014, Plaintiff requested review from the
Appeals Council but her request was denied.

(Tr. 30, 48).

That denial rendered the

Commissioner’s decision final, and therefore, a proper subject of this court’s appellate review.
II.

Facts
Plaintiff was twenty-eight years old at the time of her ALJ hearing. (Tr. 6). She alleges

she is disabled because of the following impairments: depression, vision loss, back pain, and
cysts. (Tr. 68). She is a single parent of three children. (Tr. 6). Plaintiff has worked various
jobs throughout her life, including a material handler, stocker, hostess, fast food cashier, and
janitor. (Tr. 9-13). She is able to drive, but has family or friends drive her around because she
suffers from blackouts and is afraid to drive. (Tr. 7).
Plaintiff testified that she has a cyst on her brain and she is currently under the care of a
neurologist for this condition. (Tr. 13). She is currently taking medication for the cyst, but her
doctors are looking into surgery. (Id.). She would like to see a neurologist in Birmingham about
this condition, but she has not had any transportation to travel there. (Tr. 14). At the hearing,
Plaintiff also claimed she suffers from a bulging disc in her back that causes pain in her left hip
down to her leg and it is difficult for her to sit or stand for long periods of time. (Tr. 14-15).
Plaintiff reports getting headaches two to three times a week and says they last for three
to four hours. (Tr. 15). She takes medications (Gabapentin and Tramdol) for her headaches, but
the medication makes her sleepy and she has to take a nap. (Tr. 16). Plaintiff rates the pain from
her headaches as an eight and the pain from her back between six and seven out of ten. (Tr. 19).
In addition, she suffers from anxiety attacks once or twice a week which she says are easily

2

triggered. (Tr. 18). She has been to the emergency room for both headaches and the anxiety
attacks. (Tr. 18-19).
During the day, Plaintiff takes care of her youngest child and gets her middle child ready
for daycare. (Tr. 20). She does basic chores, such as washing dishes, and has a neighbor who
comes over to help with chores she cannot do. (Tr. 19). She goes to the grocery store with a
friend or family member who provides transportation and she goes to church two or three times a
month. (Tr. 21).
Plaintiff was diagnosed with a porencephalic cyst on her brain based on a CT scan
conducted at Gadsden Regional Medical Center on September 10, 2005. (Tr. 362). Her primary
care group is Quality of Life Health Care. (Tr. 19). She first visited Quality of Life in December
2005 and her chief complaints were severe headaches and blackouts every few days. (Tr. 29294). She continued to see doctors at Quality of Life during the relevant time period of October
2009 through May 2014. (Tr. 313-56). Her first visit (after her alleged onset date) was on
November 30, 2009 (Tr. 313). Her complaints at that time were anxiety and back pain caused by
a fall at work. (Id.). She was prescribed Voltaren, Ultram, and Flexeril for her back pain, and
Hydroxyzine for her anxiety attacks. (Tr. 315).
Plaintiff did not return to Quality of Life until August 1, 2011. (Tr. 316). At that time,
her chief complaint was depression and cold symptoms. (Id.). She was diagnosed with acute
sinusitis and depression, and given medication for both conditions. (Tr. 318). Plaintiff was
treated at Quality of Life four more times in 2011. (Tr. 320-30). Each time, her main complaint
was depression and occasional knee and back pain. (Id.). She was given a variety of different
medications to treat her depression during this time period. (Id.). She continued to visit Quality

3

of Life throughout 2012. (Tr. 331-53, 490-502). She also had an MRI in February 2012 that
showed a 4cm arachnoid cyst. (Tr. 336).
On May 15, 2012, Plaintiff was treated at Quality of Life for depression and arthalgias
(aching and dull pain in her hip that was aggravated by bending and moving). (Tr. 347). She
was advised to take Arthritis Strength Tylenol along with Tramadol and to use ice/heat packs for
the pain. (Tr. 350). On July 19, 2012, she went to Quality of Life complaining of headaches and
depression. (Tr. 492). She was not suffering from blurred vision, phonophobia, or photophobia.
(Tr. 493). She was diagnosed with both chronic headaches and depression, and prescribed
medications for both. (Tr. 494). From July 2012 through October 2013, she continued to seek
treatment from Quality of Life for migraines, chronic headaches, chronic depression, and
anxiety. (Tr. 496-515). Most of her treatment throughout this period consisted of a variety of
medications for both pain and psychological issues. (Id.). On January 16, 2014, Plaintiff’s
treating physician at Quality of Life, Dr. Towles-Moore, filled out a physical capacities form
stating that Plaintiff can sit for an hour at a time, stand or walk for less than thirty minutes at a
time, would need to be lying down for three hours in an eight-hour work day, maintain
concentration for three to four hours, perform a task for two hours at a time, and her condition
would last for at least twelve months. (Tr. 688).
Plaintiff was also treated at the Gadsden Regional Medical Center Emergency Room
numerous times during the relevant time period between her alleged onset date and the ALJ
decision. (Tr. 371-484). Her first admission to the ER that is relevant here was on November 12,
2009 and related to a panic attack. (Tr. 466). She was diagnosed with acute anxiety, acute
depression, and chronic back pain and prescribed Ketorolac and Clonazepam. (Tr. 469). On
November 13, 2009, she visited the ER again for back pain. (Tr. 458). On May 17, 2011, she

4

presented to the ER complaining of a headache. (Tr. 446). She was diagnosed with an acute
non-specific headache and a urinary tract infection. (Tr. 449). She was prescribed Lortab and
Ibuprofen for the headache and medication for the infection. (Id.). In the first six months of
2012, she visited the emergency room at Gadsden Regional on five occasions complaining of
headaches.

(Tr. 366-97).

Each time, she was given pain medication, such as Lortab or

acetaminophen, and discharged. (Id.). On a few occasions, her headaches were accompanied by
nausea/vomiting and photophobia. (Tr. 371-91).
In 2013 and 2014, Plaintiff was treated at Neurological Specialists, P.C. (Tr. 37-39, 68389). Her first visit was on August 15, 2013 and she complained of chronic light sensitivity,
nausea, vomiting, and headaches. (Tr. 683). She was diagnosed with cerebral cysts, common
migraine, and Bipolar I Disorder. (Tr. 684-85). On January 14, 2014, she had a follow-up visit
with Dr. Olga Bogdanova, reporting that the headaches had led to depression and crying
episodes. (Tr. 689). She also reported her medication was causing nausea and she was sleeping
poorly. (Id.). Dr. Bogdanova diagnosed her with chronic intractable headaches, persistent
anxiety, and depression symptoms. (Id.). Plaintiff visited Dr. Bogdanova a second time in
October 14, 2014, after the ALJ decision. (Tr. 37-39). Again, Plaintiff complained of headaches
and indicated they had been worsening for two weeks. (Tr. 38). She worried the cyst was
growing, and complained of poor sleep and uncontrolled depression symptoms. (Id.). Dr.
Bogdanova diagnosed her with common migraines, Bipolar I Disorder, cerebral cysts, and
insomnia. (Tr. 39).
On August 25, 2012, Plaintiff was examined by a consultative examiner, Dr. Jack
Bentley. (Tr. 486-89). Dr. Bentley diagnosed her with depressive disorder, chronic anxiety,
probable borderline intellectual functioning, cysts on brain, migraine headaches, and chronic low

5

back pain. (Tr. 488). He found that her mood was “moderately dysphoric and her affect was
restricted.” (Tr. 487). Dr. Bentley estimated that her cognitive functioning fell within the “upper
end of the borderline range to low average range,” and determined that she would be able to
handle funds on her own if they were awarded. (Id.). He also opined that she appears to
experience “little impairment in her ability to perform simple tasks of a non-stressful manner.”
(Tr. 488-89).

In addition, he said there should “be little impairment in her ability to

communicate effectively with fellow co-workers and supervisors.” (Tr. 489).
III.

ALJ Decision
Disability under the Act is determined under a five-step test. 20 C.F.R. § 404.1520.

First, the ALJ must determine whether the claimant is engaging in substantial gainful activity.
20 C.F.R. § 404.1520(a)(4)(i). “Substantial work activity” is work activity that involves doing
significant physical or mental activities. 20 C.F.R. § 404.1572(a). “Gainful work activity” is
work that is done for pay or profit. 20 C.F.R. § 404.1572(b). If the ALJ finds that the claimant
engages in substantial gainful activity, then the claimant cannot claim disability. 20 C.F.R. §
404.1520(b).

Second, the ALJ must determine whether the claimant has a medically

determinable impairment or a combination of medical impairments that significantly limits the
claimant’s ability to perform basic work activities. 20 C.F.R. § 404.1520(a)(4)(ii). Absent such
impairment, the claimant may not claim disability. Id. Third, the ALJ must determine whether
the claimant’s impairment meets or medically equals the criteria of an impairment listed in 20
C.F.R. § 404, Subpart P, Appendix 1. See 20 C.F.R. §§ 404.1520(d), 404.1525, and 404.1526.
If such criteria are met, the claimant is declared disabled. 20 C.F.R. § 404.1520(a)(4)(iii).
If the claimant does not fulfill the requirements necessary to be declared disabled under
the third step, the ALJ may still find disability under the next two steps of the analysis. The ALJ

6

must first determine the claimant’s residual functional capacity (“RFC”), which refers to the
claimant’s ability to work despite her impairments. 20 C.F.R. § 404.1520(e). In the fourth step,
the ALJ determines whether the claimant has the RFC to perform past relevant work. 20 C.F.R.
§ 404.1520(a)(4)(iv). If the claimant is determined to be capable of performing past relevant
work, then the claimant is deemed not disabled. Id. If the ALJ finds the claimant unable to
perform past relevant work, then the analysis proceeds to the fifth and final step. 20 C.F.R. §
404.1520(a)(4)(v). In the last part of the analysis, the ALJ must determine whether the claimant
is able to perform any other work commensurate with her RFC, age, education, and work
experience. 20 C.F.R. § 404.1520(g). Here, the burden of proof shifts from the claimant to the
ALJ to prove the existence, in significant numbers, of jobs in the national economy that the
claimant can do given her RFC, age, education, and work experience. 20 C.F.R. §§ 404.1520(g),
404.1560(c).
Here, the ALJ determined that Plaintiff had not engaged in substantial gainful activity
since April 1, 2009.1 (Tr. 55). Although she had worked since that date, Plaintiff had not earned
enough money for it to be considered substantial gainful activity. (Id.). She found that plaintiff
did suffer from a variety of severe impairments, including “mild lumbar disc bulging, a cerebral
cyst, headaches, a depressive disorder with anxiety, and borderline intellectual functioning.”
(Id.). The ALJ held that none of Plaintiff’s severe impairments met any of the listed impairments
in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 56). Her physical impairments did not meet
the criteria for the spinal disorder listings or neurological impairments. (Id.). In addition, her
mental impairments were also not sufficiently severe as she does not have any “marked
restriction of activities in daily living” or “marked difficulties in maintaining social functioning
1

The ALJ incorrectly stated Plaintiff’s alleged onset date as April 1, 2009. (Tr. 55). This is the date
Plaintiff initially alleged in her application for DIB and SSI (Tr. 173-77), but she later amended her application to
allege an onset date of October 9, 2009 (Tr. 197).

7

[or] concentration, persistence, or pace” or repeated episodes of decompensation. (Id.). After
careful consideration, the ALJ found that Plaintiff had the following residual functional capacity:
[she could] perform light work as defined in 20 C.F.R. §§ 404.1567(b) and
416.967(b), except the claimant is limited to performing simple tasks, and is
frequently able to interact with co-workers/supervisors. The [ALJ] also
determines the claimant is unable to climb ladders/ropes/scaffolds, and
occasionally able to climb ramps/stairs, balance, stoop, kneel, crouch, or crawl.
The [ALJ] further concludes the claimant should not be exposed to unprotected
heights/moving mechanical parts, and should avoid concentrated exposure to
temperature extremes.
(Tr. 58). Based upon her residual functional capacity, Plaintiff is no longer able to perform her
past relevant work as a material handler which is classified as semi-skilled and medium
exertional level. (Tr. 62). However, after hearing testimony of a vocational expert, the ALJ
determined that there are jobs that exist in significant numbers in the national economy that
Plaintiff is capable of performing based on her age, experience, education, and capabilities. (Id.).
For example, the ALJ determined that Plaintiff could work as a garment sorter, hand finisher, or
cashier. (Tr. 62-63). Based on this determination, the ALJ found that Plaintiff has not been
under a disability for purposes of the Act since October 9, 2009. (Tr. 63).
IV.

Plaintiff’s Argument for Reversal
Plaintiff makes four arguments on appeal: (1) the ALJ failed to accord proper weight to

her treating physician’s opinion (Pl.’s Mem. 22); (2) the ALJ did not consider all of claimant’s
impairments (Pl.’s Mem. 30); (3) the Appeals Council improperly refused to consider new
evidence (Pl.’s Mem. 33); and (4) the decision was not based on substantial evidence because the
ALJ’s hypothetical was incomplete. (Pl.’s Mem. 36).
V.

Standard of Review
The only issues before this court are whether the record reveals substantial evidence to

sustain the ALJ’s decision, see 42 U.S.C. § 405(g); Walden v. Schweiker, 672 F.2d 835, 838
8

(11th Cir. 1982), and whether the correct legal standards were applied. See Lamb v. Bowen, 847
F.2d 698, 701 (11th Cir. 1988); Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). Title 42
U.S.C. § 405(g) mandates that the Commissioner’s findings are conclusive if supported by
“substantial evidence.” Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990). The district
court may not reconsider the facts, reevaluate the evidence, or substitute its judgment for that of
the Commissioner; instead, it must review the final decision as a whole and determine if the
decision is reasonable and supported by substantial evidence. See Id. (citing Bloodsworth v.
Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983)).
Substantial evidence falls somewhere between a scintilla and a preponderance of
evidence; “[i]t is such relevant evidence as a reasonable person would accept as adequate to
support a conclusion.” Martin, 894 F.2d at 1529 (quoting Bloodsworth, 703 F.2d at 1239) (other
citations omitted). If supported by substantial evidence, the Commissioner’s factual findings
must be affirmed even if the evidence preponderates against the Commissioner’s findings. See
Martin, 894 F.2d at 1529. While the court acknowledges that judicial review of the ALJ’s
findings is limited in scope, the court also notes that review “does not yield automatic
affirmance.” Lamb, 847 F.2d at 701.
VI.

Discussion
After careful review, the court concludes that the ALJ’s findings are supported by

substantial evidence and her decision is due to be affirmed.
A.

The ALJ Accorded Proper Weight to the Treating Physician’s Opinion

As the Eleventh Circuit has instructed, “the testimony of a treating physician must be
given substantial or considerable weigh unless ‘good cause’ is shown to the contrary.”
Crawford, 383 F.3d at 1159 (quoting Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997)).

9

Good cause exists “when 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, 1240
(11th Cir. 2004). The treating physician’s opinion may be properly discounted “when it is not
accompanied by objective medical evidence or is wholly conclusory.” Crawford, 363 F.3d at
1159. In order to properly discredit the treating physician’s opinion, the ALJ must “clearly
articulate [her] reasons” for doing so. Phillips, 357 F.3d at 1240.
In the present case, Plaintiff argues the ALJ erred in discrediting Dr. Towles-Moore’s
Physical Capacities Form that stated Plaintiff would need to “lie down, sleep, or elevate her legs
three hours in an eight-hour day.” (Pl.’s Mem. 23). Dr. Towles-Moore also believed that
Plaintiff’s condition would last more than twelve months and that she was not sure whether the
condition existed back to the alleged onset date in 2009. (Tr. 688). The ALJ properly stated her
reasons for discrediting the treating physician’s in her opinion as she stated she was assigning
little weight to her opinions, “since they are inconsistent with the majority of the medical
evidence and with the medical records from Quality of Life, which indicated the claimant was
able to function.” (Tr. 60).
The ALJ clearly articulated her reasons for discrediting the treating physician’s
testimony, and had good cause for doing so. Plaintiff’s visits with Dr. Towles-Moore in 2012
and 2013 are inconsistent with the doctor’s opinion as they do not indicate such extreme
limitations on Plaintiff’s functional capacities. (Tr. 498-510). She reported moderate pain with
motion in her spine and no deformity, swelling and a full range of motion in her hip on August
24, 2012. (Tr. 501). In June 2013, she presented with complaints of a migraine, but reported her
pain as a zero out of ten on the pain scale. (Tr. 505). On September 19, 2013, she visited Dr.

10

Towles-Moore complaining of a headache and seeking a medication refill. (Tr. 507). She had a
normal range of motion, normal muscle strength, and stability in all extremities with no pain on
inspection. (Tr. 509). Both Dr. Towles-Moore’s own records and Plaintiff’s medical records
from other physicians are inconsistent with the extreme limitations set forth in the Physical
Capacities Form from 2014. (Tr. 367-68, 486-89, 494-97, 578-88, 614-17, 635-44, 653, 670-86).
Therefore, the ALJ’s determination that Dr. Towles-Moore’s opinion was inconsistent with the
medical record is supported by substantial evidence. When a treating physician’s opinion is
inconsistent with her own medical records and by other medical evidence, that constitutes good
cause for an ALJ to discredit that treating physician’s opinion. Phillips, 357 F.3d at 1240.
B.

The ALJ Properly Considered All of Plaintiff’s Impairments

The burden is on the plaintiff to prove that she has a severe impairment. Bowen v.
Yuckart, 482 U.S. 137, 146 n.5 (1987). A severe impairment is one that “significantly limits [a
person’s] physical or mental ability to do basic work activities” without taking that person’s age,
education, or work experience into consideration. 20 C.F.R. § 404.1520(c) (2016). A severe
impairment must be proven by medical evidence. 20 C.F.R. § 404.1508 (2016). Of course, it is
only necessary to find a single severe impairment for a claimant’s case to proceed past the
second step of the analysis. Burgin v. Comm’r Soc. Sec., 420 F. Appx. 901, 902 (11th Cir.
2011).
Plaintiff contends that the ALJ erred by not finding Plaintiff’s migraines to be a severe
impairment. (Pl.’s Mem. 30-33). But that argument is flawed. The ALJ considered Plaintiff’s
headaches in general to be a severe impairment, and this encompasses her migraines. (Tr. 55).
Of course, even if the ALJ did err in not considering Plaintiff’s migraines (in particular) a
separate severe impairment, that error would be harmless. The ALJ need only find a claimant to

11

have one severe impairment to progress past the second step in the multi-step analysis. Burgin,
420 F. Appx. at 902. Here, the ALJ found that Plaintiff had five severe impairments. (Id.).
Thus, the ALJ proceeded past the second step of the analysis and considered whether, based
upon all the medical evidence, the migraines were themselves a severe impairment. As the ALJ
correctly noted, once the analysis moves past Step Two, an ALJ is required to consider “the
claimant’s entire medical condition, including impairments the ALJ determined were not
severe.” Burgin, 420 F. Appx. at 902. Because of this, the ALJ was required to consider
Plaintiff’s migraines in her analysis even though she did not specifically find them to be a severe
impairment, there was no reversible error. The record indicates she did so.
C.

The Appeals Council Properly Considered and Discounted the New Evidence
Plaintiff Submitted.

The claimant is generally allowed to introduce new evidence at each stage of the process
and the Appeals Council must consider the evidence if it is new, material, and chronologically
relevant. Ingram v. Comm’r of Soc. Sec., 496 F.3d 1253, 1261 (11th. Cir. 2007).

Evidence is

material under this standard if “there is a reasonable possibility that the new evidence would
change the administrative outcome.” Hyde v. Bowen, 823 F.2d 456, 459 (11th Cir. 1987).

In

order to be chronologically relevant, the new evidence must “relate to the period on or before the
date of the [ALJ] hearing decision.” 20 C.F.R. § 404.970(b) (2016).

Evidence is not

chronologically irrelevant solely because it is dated after the ALJ decision if it still relates back
to the relevant period of time. See Washington v. SSA, 806 F.3d 1317, 1322 (11th Cir. 2015)
(holding that treating physician’s opinion give after ALJ decision was still chronologically
relevant because Plaintiff told the doctor he had experienced hallucinations before and the doctor
examined medical records from the relevant period). When the claimant presents new evidence,

12

the Appeals Council must grant review when the ALJ’s decision is against the weight of the
current record. Harrison v. Comm’r of Soc. Sec., 569 F.Appx. 874, 881 (11th Cir. 2014).
Plaintiff argues that the Appeals Council erred in refusing to review new evidence
submitted to them from Dr. Bogdanova of Neurological Specialists. (Pl.’s Mem. 33). The
evidence at issue is the record from Plaintiff’s visit to Dr. Bogdanova on October 14, 2014 in
which Plaintiff complained of a worsening headache for the past two weeks and was also
concerned that her cyst had increased to 5 cm. (Tr. 37-39). Plaintiff also claimed she had
uncontrolled depression. (Id.). Obviously, this evidence is from a period after the ALJ decision
of May 2, 2014, so the Appeals Council was only required to consider the evidence if it was new,
material, and chronologically relevant. Ingram, 496 F.3d at 1261.
Plaintiff argues that this evidence, just like that in the Washington case, is
chronologically relevant despite the fact that it is dated after the ALJ’s decision. (Pl.’s Mem. 3336). However, Washington is distinguishable from Plaintiff’s situation here because, there, the
evidence related back to a relevant time period.

Washington, 806 F.3d at 1322 (noting that a

doctor relied on medical records and the plaintiff’s complaints from the relevant time to make his
determination that the condition was the same before the date of decision). In Plaintiff’s case,
there is no indication that Dr. Bogdanova relied on medical records from the relevant period of
time. In fact, he actually relied on a new CT scan that indicated her cyst had increased in size.
(Tr. 37-39). Thus, there is simply no indication that Plaintiff’s condition was the same before the
date of the ALJ’s decision.
In addition, even if the evidence were chronologically relevant, it is not material as there
is not a reasonable possibility that it would change the administrative outcome. Hyde, 823 F.2d
at 459. The medical record from the October 2014 visit almost precisely mirrors Plaintiff’s visits

13

to Dr. Bogdanova in August 2013 and January 2014, dates which are within the relevant time
period. (Tr. 37-39, 683-87, 689). During all three visits, she complained of frequent headaches
and of depression symptoms. (Id.). She was prescribed Lyrica in January and Dr. Bogdanova
continued her on this prescription along with a Medrol dose pack in October. (Tr. 689). Other
than the 1 cm increase in the size of the cyst, there is no appreciable difference in Plaintiff’s
condition at her October 2014 visit with Dr. Bogdanova, and her previous two visits that were
considered as part of the Appeals Council decision. (Tr. 37-39, 683-87, 689). Further, although
Plaintiff contends that the Appeals Council failed to consider the new evidence, that is simply
not the case. (Pl.’s Mem. 33). The Appeals Council considered the evidence in its decision, but
concluded that the evidence was irrelevant because it was “about a later time.” (Tr. 31). That
determination was not in error.
D.

The ALJ’s Decision is Supported by Substantial Evidence Because the
Hypothetical Posed to the Vocational Expert Included All of Plaintiff’s
Functional Limitations

In order for a vocational expert’s testimony to qualify as substantial evidence, the ALJ
“must pose a hypothetical question which comprises all of the claimant’s impairments.” Jones v.
Apfel, 190 F.3d 1224, 1229 (11th Cir. 1999). However, this does not mean that the ALJ must
include every diagnosis and impairment in the hypothetical, so long as the functional limitations
that are a result of a claimant’s impairments are included. See id.; Phillips, 357 F.2d at 1240.
Plaintiff argues that the hypothetical the ALJ posed to the vocational expert was
inaccurate because it did not include Plaintiff’s severe headaches, and, therefore, the ALJ
decision was not based on substantial evidence. (Pl.’s Mem. 36). However, the ALJ included all
of the functional limitations in the hypothetical based on Plaintiff’s residual functional capacity,
and that is all she was required to do by law. (Tr. 24-25, 58). She did not include the functional
limitations set forth in Dr. Towles-Moore’s Physical Capacities Form because the ALJ properly
14

discredited that opinion. See infra, 9-11; (Tr. 60). Nor was she required to include Plaintiff’s
headaches because there is no evidence in Plaintiff’s medical record that her headaches, outside
of her subjective hearing testimony, substantially limited her. (Tr. 4-22, 59).2

The ALJ’s

hypothetical included all of Plaintiff’s functional limitations that were supported by the record
evidence, and the hypothetical was accurate; therefore, the ALJ’s decision is based on substantial
evidence. Jones, 190 F.3d at 1229.
VII.

Conclusion
The court concludes that the ALJ’s determination that Plaintiff is not disabled is

supported by substantial evidence and the proper legal standards were applied in reaching this
determination. The Commissioner’s final decision is therefore due to be affirmed. A separate
order in accordance with this memorandum of decision will be entered.
DONE and ORDERED this August 24, 2016.

_________________________________
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE

2

Plaintiff stated in her Brief in Support of Disability that newly admitted evidence reaffirms her credibility
and this should have been included in the hypothetical to the vocational expert. (Pl.’s Mem. 38). However, Plaintiff
did not raise this argument on appeal and she has therefore, waived the issue. See Access Now, Inc. v. Southwest
Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004).

15