Brady v. Social Security Administration, Commissioner
MEMORANDUM OPINION. Signed by Magistrate Judge John E Ott on 5/17/2018. (KAM, )
2018 May-17 PM 04:49
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NANCY BERRYHILL, Acting
Commissioner of Social Security,
Case No. 4:16-cv-02020-JEO
Plaintiff Daniel Brady brings this action pursuant to 42 U.S.C. § 405(g),
seeking review of the final decision of the Acting Commissioner of Social
Security (“Commissioner”) denying his application for disability insurance
benefits (“DIB”). (Doc. 1).1 The case has been assigned to the undersigned
United States Magistrate Judge pursuant to this court’s general order of reference.
The parties have consented to the jurisdiction of this court for disposition of the
matter. (See Doc. 18). See 28 U.S.C. § 636(c), FED. R. CIV. P. 73(a). Upon
review of the record and the relevant law, the undersigned finds that the
Commissioner’s decision is due to be affirmed.
References herein to “Doc(s). __” are to the document numbers assigned by the Clerk of
the Court to the pleadings, motions, and other materials in the court file, as reflected on the
docket sheet in the court’s Case Management/Electronic Case Files (CM/ECF) system.
I. PROCEDURAL HISTORY
Plaintiff protectively filed his current DIB application on November 14,
2013, alleging he became disabled on June 1, 2001. (R. 17). He amended his
disability onset date to April 1, 2014, at his administrative hearing. (R. 42). The
administrative law judge (“ALJ”) issued an unfavorable decision on January 29,
2016. (R. 17-29). Plaintiff submitted his appeal to the Appeals Council. Upon
consideration, the Appeals Council found no reason to review the ALJ’s decision.
(R. 1). The matter is now properly before this court.
Plaintiff was 61 years old at the time of the ALJ’s decision. He has a high
school education with three years of college. He also has received a diploma for
mechanical, electrical, and architectural drafting training. (R. 44-45). Plaintiff
initially alleged disability due to depression, anxiety, arthritis, post-traumatic
stress disorder, diabetes, mini strokes, and low testosterone. (R. 218).
Following a hearing, the ALJ found that Plaintiff had the following
medically determinable impairments: obesity; mild multilevel degenerative disc
and facet changes in the lumbar spine; mid-foot arthritis in both feet; arthritis in
the right (non-dominant) shoulder; posttraumatic arthritis in the right knee; type II
diabetes mellitus; hypertension; status-post rotator cuff repair of the left shoulder
(2000); kidney stones; controlled gastroesophageal reflux disease; a history of
headache disorder; cataracts; and macular degeneration. (R. 19). He also found
that Plaintiff’s impairments did not meet or equal any of the listed impairments.
See 20 C.F.R. pt. 404, subpt. P, app. 1. (R. 22). He further found Plaintiff had the
residual functional capacity (“RFC”) to perform the full range of medium work.
(R. 22-28). Next, he determined Plaintiff could perform his past work as a
maintenance mechanic and grocery clerk. (R. 28, 66). Accordingly, the ALJ
determined Plaintiff was not under a disability as defined in the Social Security
Act. (R. 29).
III. STANDARD OF REVIEW
The court’s review of the Commissioner’s decision is narrowly
circumscribed. The function of the court is to determine whether the
Commissioner’s decision is supported by substantial evidence and whether proper
legal standards were applied. Richardson v. Perales, 402 U.S. 389, 390, 91 S. Ct.
1420, 1422 (1971); Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002).
The court must “scrutinize the record as a whole to determine if the decision
reached is reasonable and supported by substantial evidence.” Bloodsworth v.
Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). Substantial evidence is “such
relevant evidence as a reasonable person would accept as adequate to support a
conclusion.” Id. It is “more than a scintilla, but less than a preponderance.” Id.
The court must uphold factual findings that are supported by substantial
evidence. However, it reviews the ALJ’s legal conclusions de novo because no
presumption of validity attaches to the ALJ’s determination of the proper legal
standards to be applied. Davis v. Shalala, 985 F.2d 528, 531 (11th Cir. 1993). If
the court finds an error in the ALJ’s application of the law, or if the ALJ fails to
provide the court with sufficient reasoning for determining that the proper legal
analysis has been conducted, it must reverse the ALJ’s decision. See Cornelius v.
Sullivan, 936 F.2d 1143, 1145-46 (11th Cir. 1991).
IV. STATUTORY AND REGULATORY FRAMEWORK
To qualify for DIB under the Social Security Act, a claimant must show the
inability to engage in “any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in
death or which has lasted or can be expected to last for a continuous period of not
less than 12 months.” 42 U.S.C. § 423(d)(1)(A). A physical or mental impairment
is “an impairment that results from anatomical, physiological, or psychological
abnormalities which are demonstrable by medically acceptable clinical and
laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3). The claimant has the
burden of producing evidence to support his disability claim. See 20 C.F.R. §
Determination of disability under the Social Security Act requires a five
step analysis. 20 C.F.R. §§ 404.1520(a)(4). Specifically, the Commissioner must
determine in sequence:
whether the claimant: (1) is unable to engage in substantial gainful
activity; (2) has a severe medically determinable physical or mental
impairment; (3) has such an impairment that meets or equals a Listing
and meets the duration requirements; (4) can perform his past relevant
work, in light of his residual functional capacity; and (5) can make an
adjustment to other work, in light of his residual functional capacity,
age, education, and work experience.
Evans v. Comm’r of Soc. Sec., 551 F. App’x 521, 524 (11th Cir. 2014)2 (citing 20
C.F.R. § 404.1520(a)(4)). The plaintiff bears the burden of proving that he was
disabled within the meaning of the Social Security Act. Moore v. Barnhart, 405
F.3d 1208, 1211 (11th Cir. 2005). The applicable “regulations place a very heavy
burden on the claimant to demonstrate both a qualifying disability and an inability
to perform past relevant work.” Id.
Plaintiff argues five grounds of error: First, the ALJ incorrectly found that
Plaintiff can perform his past work; Second, the ALJ failed to afford adequate
Unpublished opinions of the Eleventh Circuit Court of Appeals are not considered
binding precedent; however, they may be cited as persuasive authority. 11th Cir. R. 36-2.
weight to the opinion of Plaintiff’s treating urologist; Third, the ALJ failed to state
adequate reasons for finding Plaintiff not credible; Fourth, the ALJ failed to
develop the record; and Fifth, the ALJ failed to consider all of Plaintiff’s severe
impairments. (Doc. 11 at 1-2). Each argument will be addressed below.
Past Relevant Work
Plaintiff argues that the ALJ failed to perform an analysis of his past work
and make specific findings regarding the physical and mental demands of that
work. (Doc. 11 at 16-19). The Commissioner responds that the ALJ adequately
considered Plaintiff’s prior work history and substantial evidence supports the
ALJ’s determination that Plaintiff could perform his past relevant work. (Doc. 15
at 5-7). She also argues that Plaintiff has not identified any demands of his prior
positions that are inconsistent with his RFC. (Id.)
The record shows that the ALJ relied on testimony from a vocational expert
(“VE”) concerning Plaintiff’s past work experience. (R. 65-70). The VE testified
that Plaintiff’s past, relevant work as a maintenance mechanic was performed at a
medium, skilled level. The VE identified the position in the Dictionary of
Occupational Titles (“DOT”) § 638.281-014. (R. 66). See 1991 WL 685519.3
Maintenance Mechanic is defined by the DOT as follows:
Repairs and maintains, in accordance with diagrams, sketches, operation manuals,
and manufacturer's specifications, machinery and mechanical equipment, such as
The VE also testified that Plaintiff’s past, relevant work as a grocery clerk was
performed at a medium, semi-skilled level. He again identified the position in the
DOT at § 290.477-018. (R. 66). See 1991 WL 672555.4 The VE further testified
engines, motors, pneumatic tools, conveyor systems, and production machines and
equipment, using handtools, power tools, and precision-measuring and testing
instruments: Observes mechanical devices in operation and listens to their sounds
to locate causes of trouble. Dismantles devices to gain access to and remove
defective parts, using hoists, cranes, handtools, and power tools. Examines form
and texture of parts to detect imperfections. Inspects used parts to determine
changes in dimensional requirements, using rules, calipers, micrometers, and
other measuring instruments. Adjusts functional parts of devices and control
instruments, using handtools, levels, plumb bobs, and straightedges. Repairs or
replaces defective parts, using handtools and power tools. Installs special
functional and structural parts in devices, using handtools. Starts devices to test
their performance. Lubricates and cleans parts. May set up and operate lathe, drill
press, grinder, and other metalworking tools to make and repair parts. May initiate
purchase order for parts and machines. May repair electrical equipment. May be
designated according to machine repaired as Carton-Forming-Machine Adjuster
(any industry); Machine Adjuster (tobacco); Maintenance Mechanic, Record
Processing Equipment (recording).
1991 WL 685519.
The DOT defined the position as follows:
Obtains or prepares food items requested by customers in retail food store, totals
customer bill, receives payment, and makes change: Fills customer order,
performing duties such as obtaining items from shelves, freezers, coolers, bins,
tables, or containers; cleaning poultry; scaling and trimming fish; slicing meat or
cheese, using slicing machine; preparing take-out sandwiches and salads;
dispensing beverages; and warming food items in oven. Weighs items, such as
produce, meat, and poultry to determine price. Lists and totals prices, using paper
and pencil, calculator, or cash register. Informs customer of total price of
purchases. Receives payment from customer for purchases and makes change.
Bags or wraps purchases for customer. Cleans shelves, bins, tables, and coolers.
Stamps, marks, or tags price on merchandise. Sets up displays and stocks shelves,
coolers, counter, bins, tables, freezers, containers, or trays with new merchandise.
May make deliveries to customer home or place of business [DELIVERER,
MERCHANDISE (retail trade) 299.477-010]. May write orders, decorate cakes,
that a hypothetical individual with Plaintiff’s vocational profile and a limitation to
medium work could perform both jobs comprising his past, relevant work. (R.
This issue was previously raised by Plaintiff’s counsel in Holder v.
Berryhill, 2018 WL 1857061 (N.D. Ala. Apr. 18, 2018). United States District
Judge Virginia E. Hopkins stated:
Holder argues that Nelms v. Bowen and Schnorr v. Bowen control.
... (citing Nelms v. Bowen, 803 F.2d 1164, 1165 (11th Cir. 1986);
Schnorr v. Bowen, 816 F.2d 578, 581 (11th Cir. 1987)). Nelms stands
for the idea that “[i]n the absence of evidence of the physical
requirements and demands of appellant’s work the ALJ could not
properly determine that she retained the residual functional capacity
to perform it.” Nelms, 803 F.2d at 1165. Similarly, Schnorr stands for
the idea that “[w]here there is no evidence of the physical
requirements and demands of the claimant’s past work and no
detailed description of the required duties was solicited or proffered,
the Secretary cannot properly determine whether the claimant has the
residual functional capacity to perform his past relevant work.”
Schnorr, 816 F.2d at 581.
The Commissioner cites to the Eleventh Circuit in Waldrop.... (citing
Waldrop v. Comm’r of Soc. Sec., 379 Fed. Appx. 948, 953 (11th Cir.
or describe available specialty products, such as birthday cakes. May order
merchandise from warehouse or supplier. May be designated according to type of
food sold as Grocery Clerk (retail trade); Meat Counter Clerk (retail trade);
Produce Clerk (retail trade) I; Sales Clerk, Fish (retail trade).
1991 WL 275555
Footnote 2 in Judge Hopkins’s opinion provides: “Holder also cites to Lucas v. Sullivan
for essentially the same idea as Schnorr and Nelms. ... (citing Lucas v. Sullivan, 918 F.2d 1567,
1574 n. 3 (11th Cir. 1990)).” Holder, 2018 WL 1857061, *3 n.2.
2010) ). That case states, in relevant part:
Because the record demonstrates that the ALJ considered
the DOT and the VE’s testimony, Waldrop’s claim that
the ALJ failed to adequately develop the record lacks
merit. Moreover, even if the ALJ erred by failing to ask
additional questions about the physical demands posed
by Waldrop’s past work as a human resources clerk, this
error did not prejudice Waldrop, as Mancini’s expert
testimony demonstrated that Waldrop could perform this
job as it is performed in the general economy.
Waldrop, 379 Fed. Appx. at 953. This Court agrees with this logic.
The ALJ properly developed the record surrounding Holder’s
employment as she performed it because he had a work history report
..., the benefit of a hearing where Holder was represented by counsel
who could develop this record ..., the help of an impartial vocational
expert..., and he relied on the Dictionary of Occupational Titles ....
Footnote 3 in Judge Hopkins’s opinion provides: “Holder argues that ‘Waldrop is not
binding authority.’ .... She is correct, but the Court is persuaded by Waldrop none the less.
Further, the Court in Waldrop cited to the Schnorr decision. See Waldrop, 379 Fed. Appx. at
953.” Holder, 2018 WL 1857061, *4 n.3.
Footnote 4 in Judge Hopkins’s opinion provides:
The Code of Federal Regulations states that:
A vocational expert or specialist may offer relevant evidence within his or
her expertise or knowledge concerning the physical and mental demands
of a claimant’s past relevant work, either as the claimant actually
performed it or as generally performed in the national economy. Such
evidence may be helpful in supplementing or evaluating the accuracy of
the claimant’s description of his past work. In addition, a vocational
expert or specialist may offer expert opinion testimony in response to a
hypothetical question about whether a person with the physical and mental
limitations imposed by the claimant’s medical impairment(s) can meet the
demands of the claimant’s previous work, either as the claimant actually
performed it or as generally performed in the national economy.
Additionally, “[w]hile [claimant] points out that the record contains
limited information concerning her duties [in her past relevant work],
it is the claimant’s burden to demonstrate not only that she can no
longer perform her past relevant work as she actually performed it,
but also that she can no longer perform this work as it is performed in
the general economy.” See Waldrop, 379 Fed. Appx. at 953
Holder, 2018 WL 1857061, *3-4 (underlining in original).
The undersigned agrees with the reasoning of Judge Hopkins. Applying
that reasoning to this case, the court finds that Plaintiff is not entitled to any relief
on this claim for various reasons. First, the VE’s testimony, including the
references to the DOT, provides substantial evidence that Plaintiff could perform
his past relevant work. Second, Plaintiff has not demonstrated that he can no
longer preform his past relevant work either as he performed it previously or as the
work is generally performed in the national economy. Third, Plaintiff has not
shown that any demand associated with either the maintenance mechanic position
or the grocery clerk position is inconsistent with his RFC as determined by the
ALJ. Thus, the court finds that the determination of the ALJ is supported by
substantial evidence and that Plaintiff is not entitled to any relief.
20 C.F.R. § 416.960(b)(3) (emphasis added).
Holder, 2018 WL 1857061, *4 n.4.
Plaintiff next argues that the ALJ did not afford proper weight to his
treating urologist’s August 10, 2015 statement and failed to show good cause for
failing to do so. (Doc. 11 at 19). The Commissioner responds that the ALJ
“appropriately assigned ‘some, but not great weight’ to [the August] statement...”
and the ALJ adequately explained his reasoning. (Doc. 15 at 7-8).
In assessing the weight to be given the evidence provided by Plaintiff’s
urologist, Dr. Michael B. Kline, 20 C.F.R. § 404.1527(c)(2) provides guidance.
The regulation states that the ALJ is to consider the following factors in deciding
what weight he or she gives to any medical opinion: the examining relationship,
the treatment relationship, the supportability of the medical opinion, the
consistency with the record as a whole, the specialization of the medical
professional, and other factors, including the medical professional’s understanding
of the Social Security Administration’s disability programs. Id. A treating
physician “must be given substantial or considerable weight unless ‘good cause’ is
shown to the contrary.” Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir.1997).
The Eleventh Circuit Court of Appeals has stated that “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, 1240-41 (11th Cir. 2004). In rejecting a medical
opinion, the ALJ must clearly articulate his or her reasons for doing so. Id.
Dr. Kline is Plaintiff’s treating urologist. His August 10, 2015 statement
The above named patient is under my care due to his present urologic
illness. The patient undergoes treatment at our office on a weekly
basis due to his bladder cancer. Due to this treatment, the patient has
frequency and urgency of urination. The patient has incontinence of
urine. The patient is unable to control his urine and is unable to work
due to this illness.
(R. 426). In affording “some” weight to his opinion, the ALJ stated:
Dr. Kline, the claimant’s treating urologist, in a letter dated August
10, 2015 (Exhibit 17F), gave a medical source opinion that the
claimant was unable to work. The undersigned affords the claimant’s
treating urologist some, but not great weight. The undersigned notes
concerns regarding the alleged reports from this doctor concerning
the sudden assessment of bladder cancer, despite almost two years of
near perfect health and without any accompanying lab reports or
anything else, just the doctor’s statement of “disability.” Dr. Kline’s
medical notes suddenly indicate the claimant cannot control his urine,
yet as recently as four months earlier there were no problems. The
undersigned notes this as being inconsistent and of questionable
veracity, especially when noting the evidence itself at Exhibit 17F,
pages 3 and 5 and the difference in signatures. It appears the same
person did not sign those signatures. Additionally, when noticing the
letterhead. On the form with the doctor's office information, Dr.
Kline uses his middle initial “B.”, in the letterhead, in his signature,
and in his signature block. However, the other form has no letterhead
and no middle initial “B.” A third page, Exhibit 7F, page 4, has a
stamp and even the stamp has a “B.” In addition, once again, is
written on letterhead paper. The undersigned notes the letter
indicating that the claimant is “disabled,” is dated the same day as
Exhibit 7F, page 4, yet the document with the letterhead makes no
mention of cancer or bladder problems. The document dated June 22,
2015, “with letterhead,” makes no mention of any bladder issues or
cancer, making the diagnosis for bladder cancer somewhat suspect.
There is a fifth page, Exhibit 16F, page 2, that indicates the claimant
underwent chemotherapy treatment, and is on letterhead, but it is not
signed. Furthermore, Exhibit 18F, page 3, dated July 24, 2015,
regarding the claimant’s alleged cancer, oddly enough the pharmacist
reports, good luck with your upcoming biopsy and chemotherapy.
The undersigned finds it noteworthy that the claimant was talking to
the office pharmacist and not Dr. Kline. The surgical notes received
in Exhibit 21F, are for the claimant’s eyes, not his bladder or prostate.
Dr. Kline’s office notes dated October 5, 2015, indicated the claimant
had recent biopsies and fulguration of the suspected tumor and the
pathology report came back benign with no evidence of any
transitional cell carcinoma. The claimant was scheduled to return
for cystoscopy and follow-up in three months. (Exhibit 24F, page
(R. 25-26 (bold and italics in original)).
As best the court can discern from the record, Dr. Kline began treating
Plaintiff in August 2014 for kidney stones and blood in his urine. (R. 362-65).
Plaintiff’s problems with and treatment for kidney stones continued through June
2015. During a June 1, 2015 visit, Dr. Kline ordered a CT scan. The scan
revealed a soft tissue density lesion within the bladder. (R. 493-94). On June 5,
2015, Plaintiff underwent a procedure to remove tumors from his bladder. (R. 55,
On June 22, 2015, Plaintiff saw Dr. Kline for a “post op” visit. Plaintiff
denied any dysuria9 or nocturia.10 (R. 469-70). Dr. Kline’s physical examination
revealed that Plaintiff appeared “well developed, well-nourished,” and in “no
acute distress.” (R. 470). Dr. Kline noted that Plaintiff would receive BCG11
treatments when they became available. (R. 471). He did not, however, note
A billing statement from Urologic Health of Eastern AL refers to a June 5, 2015, “TUR
BT”. (R. 448). Dr. Kline also refers to Plaintiff’s “recent TUR bladder tumor” in his notes. (R.
469). It appears that the billing record reference to “TUR BT” is likely a reference to
“Transurethral Resection of Bladder Tumor,” which is a procedure where bladder tumors can be
removed from the bladder wall using a scope that is inserted through the urethra into the bladder,
generally performed as an outpatient procedure. See Kansas City Urology Care, http://www.
kcurology.com/treatments/transurethral-resection-of-bladder-tumor-turbt.html (last visited May
“Dysuria” is painful urination. See Mayo Clinic, https://www.mayoclinic.org/symptoms/
painful-urination/basics/definition/sym-20050772 (last visited May 15, 2018).
“Nocturia” is frequent urination during the night. See Mayo Clinic,
https://www.mayoclinic.org/symptoms/frequent-urination/basics/definition/ sym-20050712 (last
visited May 15, 2018).
“BCG” therapy is defined as follows:
Bacillus Calmette-Guerin therapy: Bacillus Calmette-Guerin (BCG) is the main
intravesical immunotherapy for treating early-stage bladder cancer. BCG is a germ
that is related to the one that causes tuberculosis (TB), but it doesn’t usually cause
serious disease. BCG is put directly into the bladder through a catheter. The
body’s immune system cells are attracted to the bladder and activated by BCG,
which in turn affects the bladder cancer cells. Treatment is usually started a few
weeks after a TURBT and is given once a week for 6 weeks. Sometimes
long-term maintenance BCG therapy is given.
See American Cancer Society, https://www.cancer.org/cancer/bladder-cancer/treating/
intravesical-therapy.html (last visited May 15, 2018).
any problems Plaintiff was experiencing with frequent or uncontrolled urination.
Plaintiff had six BCG treatments during August and September 2015.
Plaintiff again denied any dysuria or nocturia during these visits. Dr. Kline did
not identify any problems during Plaintiff’s treatment and/or physical
examinations. There was no indication of frequent or uncontrolled urination in his
notes. (R. 472-89). Dr. Kline performed a “bladder tumor, recheck” procedure on
August 3, 2015, that showed no tumors. (R. 474). Plaintiff’s October 5, 2015
visit notes show that Plaintiff “had recent biopsies and fulguration of suspected
tumor,” but “the pathology report came back benign [with n]o evidence of any
transitional cell carcinoma.” (R. 492, 504-05).
The court finds that the ALJ’s opinion on this matter is supported by
substantial evidence. It is evident from a review of Dr. Kline’s contemporaneous
notes that they are inconsistent with his August 2015 statement. They do not
support a conclusion that Plaintiff is “unable to control his urine and is unable to
work due to his illness.” (R. 426). Plaintiff did not report frequent or
uncontrolled urination. Additionally, Dr. Kline’s notes do not evidence disabling
impairments. To the contrary, Plaintiff’s visits demonstrate that he improved
following the GCB therapy and he received a very favorable report following his
retest.12 Additionally, Plaintiff’s activities of daily living do not support a claim
that he suffered from disabling impairments. For instance, he reported being able
to work in his wood shop.13 (See e.g. R. 405).
To the extent Plaintiff argues that the ALJ should have sought additional
information from Dr. Kline, the court disagrees. (Doc. 11 at 22). While the ALJ
has a duty to develop a full and fair record, he is not required to do so when the
record is sufficient to make an informed decision. Robinson v. Astrue 365 F.
The court does note that Plaintiff was diagnosed with BPH with urinary frequency.
BPH is defined as follows:
Benign prostatic hyperplasia (BPH) is also known as benign prostatic
hypertrophy. It is a histologic diagnosis which is characterized by proliferation of
the cellular elements of the prostate. BPH is the most common cause of lower
urinary tract symptoms (LUTS), which are divided into storage, voiding, and
symptoms which occur after urination.
Usually men develop enlargement of prostate after the age of 50. When the
prostate enlarges, it may constrict the flow of urine. Nerves within the prostate
and bladder may also play a role in causing the symptoms including urinary
frequency, urinary urgency, hesitancy that means difficulty initiating the urinary
stream, interrupted or weak stream.
See BPH ICD 9, http://www.medicalbillingcodings.org/2016/05/bph-icd-9-code-with
-obstruction.html (last visited May 15, 2018). However, there was no report of incontinence. To
the contrary, the record notes demonstrate that Plaintiff reported “no incontinence.” (See, e.g., R.
The court notes that the ALJ conducted an extensive analysis of Dr. Kline’s August 10,
2015 letter, including an evaluation of the letterhead and the signature with other notes and
documents. (See R. 25-26). The undersigned is not impacted by this analysis in resolving the
issues presented in this matter. The court finds that evidence does establish Plaintiff’s bladder
cancer and BCG therapy. However, it also clearly establishes that Plaintiff had recovered from
his surgery and there was no evidence of any additional cancer. Additionally, the record
establishes that he did not suffer from incontinence.
App’x 993, 999 (11th Cir. 2010). In determining whether a remand is appropriate,
the dispositive issue is “whether the record reveals evidentiary gaps which result
in unfairness or clear prejudice” to Plaintiff. Id. The court finds that the record in
this case is sufficient for an informed decision. Additionally, Plaintiff has failed to
demonstrate the requisite “unfairness or clear prejudice” to justify a remand.
Plaintiff next argues that the ALJ’s reasons for discounting his symptoms
and limitations are inadequate. (Doc. 11 at 28-30). The Commissioner responds
that this claim is waived due to the perfunctory manner in which it is advanced.
(Doc. 15 at 13-14). Additionally, the Commissioner argues that substantial
evidence supports the ALJ’s determination. (Id. at 16-19).
The Eleventh Circuit has stated that “simply stating that an issue exists,
without further argument or discussion, constitutes abandonment of that issue.”
Singh v. U.S. Att’y Gen., 561 F.3d 1275, 1278-79 (11th Cir. 2009). Here, Plaintiff
asserts in his initial brief that the ALJ failed to state adequate reasons for finding
him not credible, but he does not challenge any of the ALJ’s articulated reasons
for discrediting his testimony. He simply declares the ALJ’s reasons to be
inadequate without providing any analysis or discussion of why that is so.
Moreover, Plaintiff does not address the Commissioner’s waiver argument in his
reply brief. (See Doc. 16 at 9-11). Thus, the court finds he has waived or
abandoned this claim. Regardless, as will be demonstrated below, the substantive
claim is without merit.
The Substantive Claim
Plaintiff contends that the ALJ failed to state adequate reasons for finding
his testimony not credible. In addressing Plaintiff’s subjective description of pain
and symptoms, the law is clear: he must provide evidence of an underlying
medical condition and either objective medical evidence confirming the severity of
his alleged symptoms or evidence establishing that his medical condition could
reasonably be expected to give rise to his alleged symptoms. See 20 C.F.R. §
404.1529(a), (b); Social Security Ruling (SSR) 96-7p, 1996 WL 374186;14 Wilson
v Barnhart, 284 F.3d 1219, 1225-26 (11th Cir. 2013).15 In determining whether
SSR 16-3p superseded SSR 96-7p effective March 28, 2016. See SSR 16-3p, 2016 WL
1237954, at *1 (amending the effective date of SSR 16-3p to March 28, 2016); 2016 WL
1119029, at *1 (implementing SSR 16-3p). Because the ALJ decided this case before the March
28, 2016, implementation date, SSR 16-3p does not apply to a review of his analysis.
In Wilson, the court stated:
In order to establish a disability based on testimony of pain and other symptoms,
the claimant must satisfy two parts of a three-part test showing: (1) evidence of an
underlying medical condition; and (2) either (a) objective medical evidence
confirming the severity of the alleged pain; or (b) that the objectively determined
medical condition can reasonably be expected to give rise to the claimed pain.
See Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991). If the ALJ discredits
substantial evidence supports an ALJ’s credibility determination, “[t]he question is
not . . . whether the ALJ could have reasonably credited [the claimant’s]
testimony, but whether the ALJ was clearly wrong to discredit it.” Werner v.
Comm’r of Soc. Sec., 421 F. App’x 935, 939 (11th Cir. 2011). “The credibility
determination does not need to cite particular phrases or formulations but it cannot
merely be a broad rejection which is not enough to enable . . . [the court] to
conclude that the ALJ considered [the] medical condition as a whole.” Dyer v.
Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005) (quotations and alterations
In this case, the ALJ assessed Plaintiff’s subjective claims. Initially, the
ALJ noted he considered “all [Plaintiff’s] symptoms and the extent to which these
symptoms [could] reasonably be accepted as consistent with the objective medical
evidence and other evidence.” (R. 22). He then noted Plaintiff’s claims that were
listed in his application documents, including depression, anxiety, arthritis,
post-traumatic stress disorder, gastro-esophageal reflux disease, diabetes mellitus,
subjective testimony, he must articulate explicit and adequate reasons for doing
so. See Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987). Failure to
articulate the reasons for discrediting subjective testimony requires, as a matter of
law, that the testimony be accepted as true. See Cannon v. Bowen, 858 F.2d 1541,
1545 (11th Cir. 1988).
Id., 284 F.3d at 1225.
Type II, mini strokes, and low testosterone and how they limited his ability to
work. The ALJ also noted that Plaintiff stated that he had difficulties with lifting,
squatting, standing, reaching, kneeling, stair climbing, concentrating, and getting
along with others. (R. 23 (citing R. 218)). The ALJ, however, also found that
Plaintiff stated that he continued to work with those conditions and they did not
cause him to make changes in his work activity. (Id.) He further found that
Plaintiff’s daily activities included preparing simple meals; doing some household
chores, such as small household repairs and yard work; walking; driving; riding in
a car; shopping in a store or by computer thrice weekly; engaging in hobbies,
including television, woodworking, fishing, collecting rocks, old coins, and
collectible coins; caring for pets; caring for his two-year old grandson; going to
church; going out to dinner with his family; going on vacations; and visiting with
relatives. (R. 23 (citing 238-253)). Plaintiff’s ability to work, function, and be
around others was further corroborated by a third-party function report from his
wife. (R. 23, 238-45).
Premised on the foregoing, the ALJ concluded that Plaintiff’s daily
activities are “not indicative of a finding of ‘disabled.’” (R. 23). The court agrees.
Additionally, as noted by the ALJ, Plaintiff’s statements to medical providers are
inconsistent with his allegations of disabling symptoms and limitations. For
instance, his comments during examinations demonstrate that he generally
responded well to medication. (See R. 102, 343, 349, 350, 352). His medical
examinations just before and shortly after his amended onset date (April 2014) do
not evidence disabling complaints. To the contrary, they evidence no significant
limiting conditions. (See R. 366-67). Additionally, as discussed above, Plaintiff
recovered quite well from his bladder cancer and treatment related to that illness.
Side Effects of Plaintiff’s Medications
Plaintiff next argues that the ALJ did not properly develop the record
concerning the side effects of medications he was taking. In support of this
contention, he states that Lyrica made him tired and that Buspirone and Zoloft
made him sleepy. (Doc. 11 at 30 (citing R.. 49, 60). The Commissioner argues
that while the ALJ did not explicitly discuss the effects of these medications, he
implicitly discredited Plaintiff’s subjective allegations regarding the side effects of
his medications. (Doc. 15 at 20-21). The Commissioner also argues that a remand
to the ALJ on this issue would be a waste of judicial and administrative resources.
(Id. at 21).
The side effects of medication is an element the ALJ should consider when
evaluating a claimant’s subjective symptoms. See Walker v. Comm’r of Soc. Sec.,
404 F. App’x 362, 366 (11th Cir. 2010). While the ALJ has the responsibility of
fully developing the record, the claimant is not relieved of his burden of proving
he is disabled. Id.
Plaintiff’s counsel is in part correct; the ALJ did not separately discuss the
evidence related to Plaintiff’s alleged medication side effects. However, there is
no requirement that the ALJ specifically refer to every piece of evidence in the
record as long as the court can conclude that he considered Plaintiff’s medical
condition as a whole. As stated by the Commissioner, the proper standard of
review is whether the ALJ’s conclusions as a whole are supported by substantial
evidence in the record. (Doc. 15 at 19 (citing Dyer, 395 F.3d at 1211 (11th Cir.
2005); Lipscomb v. Comm’r of Soc. Sec., 199 F. App’x 903, 906 (11th Cir. 2006)
(applying that principle to the issue of side effects of medications); Jamison v.
Bowen, 814 F.2d 585, 588-89 (11th Cir. 1987) (ALJ not required to use particular
formulations or phrases as long as it can be determined that the claimant’s entire
medical condition has been considered pursuant to the proper regulatory and
The ALJ stated at least four times in his opinion that he considered all the
evidence concerning Plaintiff’s impairments and symptoms. (See R. 22 (“The
undersigned has considered all of the claimant’s impairments individually and in
combination....” and “the undersigned has considered all symptoms and the extent
to which these symptoms can reasonably be accepted as consistent with the
objective medical evidence and other evidence....”); R. 27 (“Therefore, after
careful consideration of the evidence....”); and R. 28 (“The undersigned carefully
reviewed all of the evidence....”)). It is evident that the ALJ fulfilled his
responsibility in this instance. This is especially true as to the present claim
because the ALJ specifically stated (1) that Plaintiff’s allegations of totally
disabling symptoms were not supported by the medical records and (2) that
“[w]hile the allegations regarding the nature of the symptoms are found to be
supported within the medical evidence in the file, the contentions regarding the
severity of, and the related functional restrictions, are not fully supported.” (R.
27). Thus, the court finds that the ALJ impliedly considered Plaintiff’s allegations
about his symptoms and limitations cause by the medications and correctly
To the extent Plaintiff seeks a remand, the court finds that the circumstances
do not justify a remand. While Plaintiff testified that his medications made him
tired and sleepy (R. 49), he never complained during his numerous medical visits
about these side effects. (See, e.g., R. 308, 338, 339, 340, 341, 342, 343, 344, 345,
352, 356, 361, 362, 366, 367, 369, 370, 388). The court finds that a remand would
not change the evidence or the result in this case. Thus, a remand is not
warranted. See NLRB v. Wyman-Gordon, 394 U.S. 759, 766 n.6 (1969) (plurality
opinion) (where “remand would be an idle and useless formality,” courts are not
required to “convert judicial review of agency action into a ping-pong game”);
Diorio v. Heckler, 721 F.2d 726, 728 (11th Cir. 1983) (ALJ error harmless where
correcting the error would not change the ALJ’s decision).
Evaluation of Plaintiff’s Severe Impairments
Plaintiff lastly argues that his bladder cancer and frequent urination were
severe impairments that the ALJ failed to consider. (Doc. 11 at 32-33). The
Commissioner responds that the ALJ thoroughly discussed Plaintiff’s medical
issues and any error would be harmless. (Doc. 15 at 21-23). Plaintiff does not
address the Commissioner’s argument that any error was harmless in his reply
brief. (See Doc. 16 at 12).
During the second step of the sequential evaluation process, the ALJ did not
list bladder cancer and frequent urination. They were not on the list of thirteen
severe impairments or on the list of non-severe impairments found by the ALJ.16
(See R. 19). However, because the ALJ continued in the evaluation process and,
as discussed above, fully evaluated and correctly decided the impact of Plaintiff’s
Bladder and prostate cancer were discussed, but the terse references were more fully
fleshed out in a later section of the opinion discussing Plaintiff’s RFC. (Compare R. 18 & R. 2426).
bladder cancer and urination issues, there was no error. See Tuggerson-Brown v.
Comm’r of Soc. Sec., 572 F. App’x 949, 951 (11th Cir. 2014) (“there is no need
for an ALJ to identify every severe impairment at step two”). This claim is
For the reasons set forth above, the undersigned concludes that the decision
of the Commissioner is due to be affirmed. An appropriate order will be entered
DONE, this the 18th day of May, 2018.
JOHN E. OTT
Chief United States Magistrate Judge
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