Wright v. Colvin
Filing
20
MEMORANDUM OPINION AND ORDER entered that the decision of the Commissioner of Social Security denying the Plaintiff benefits be affirmed. Signed by Magistrate Judge William E. Cassady on 4/13/2016. (eec)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JESUSA GARCIA WRIGHT,
Plaintiff,
:
:
vs.
:
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
:
Defendant.
CA 14-00575-C
:
MEMORANDUM OPINION AND ORDER
Plaintiff brings this action, pursuant to 42 U.S.C. §§ 405(g), seeking judicial
review of a final decision of the Commissioner of Social Security denying him claims for
period of disability and disability insurance benefits. The parties have consented to the
exercise of jurisdiction by the Magistrate Judge, pursuant to 28 U.S.C. § 636(c), for all
proceedings in this Court. (Docs. 17 & 19 (“In accordance with the provisions of 28
U.S.C. 636(c) and Fed.R.Civ.P. 73, the parties in this case consent to have a United States
Magistrate Judge conduct any and all proceedings in this case, . . . order the entry of a
final judgment, and conduct all post-judgment proceedings.”)). Upon consideration of
the administrative record, the Plaintiff’s brief, the Commissioner’s brief, and the
arguments of counsel for the Parties at the October 29, 2015 hearing before the Court, it
is determined that the Commissioner’s decision denying benefits should be affirmed.1
1
Any appeal taken from this memorandum opinion and order and
judgment shall be made to the Eleventh Circuit Court of Appeals. (See Docs. 17 & 19
(“An appeal from a judgment entered by a Magistrate Judge shall be taken directly to
the United States Court of Appeals for this judicial circuit in the same manner as an
appeal from any other judgment of this district court.”)).
Plaintiff
alleges
disability
due
to
mild
degenerative
disc
disease,
tembromandibular joint disease (“TMJ”), insomnia, anxiety, and depression.
Administrative Law Judge (“ALJ”) made the following relevant findings:
1.
The claimant meets the insured status requirements of the Social
Security Act through December 31, 2014.
2.
The claimant has not engaged in substantial gainful activity since
February 26, 2011, the alleged onset date (20 CFR 404.1571 et seq.).
3.
The claimant has the following severe impairments: mild
degenerative disc disease, tembromandibular joint disease (TMJ),
insomnia, anxiety, and depression (20 CFR 404.120(c)).
These impairments have caused more than a minimal limitation in the
claimant's ability to perform work activity.
4.
The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the
listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
404.1520(d), 404.1525 and 404.1526).
*
*
*
5.
After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to perform
medium work as defined in 20 CFR 404.1567(c) except the claimant
can frequently climb ramps or stairs; frequently climb ladders, ropes,
or scaffolds; frequently balance, stoop, crouch, and crawl. She must
avoid concentrated exposure to work around unprotected machinery or
work around unprotected heights. The claimant can perform simple,
routine tasks with simple workplace decisions and few workplace
changes. The claimant can have occasional interaction with the public
or coworkers.
In making this finding, 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 based
on the requirements of 20 CFR 404.1529 and SSRs 96-4p and 96-7p. The
undersigned has also considered opinion evidence in accordance with the
requirements of 20 CFR 404.1527 and SSRs 96-2p, 96-5p, 96-6p and 063p.
In considering the claimant's symptoms, the undersigned must follow a
two-step process in which it must first be determined whether there is
an underlying medically determinable physical or mental impairment(s)2
The
-i.e., an impairment(s) that can be shown by medically acceptable
clinical and laboratory diagnostic techniques--that could reasonably be
expected to produce the claimant's pain or other symptoms.
Second, once an underlying physical or mental impairment(s) that could
reasonably be expected to produce the claimant's pain or other
symptoms has been shown, the undersigned must evaluate the
intensity, persistence, and limiting effects of the claimant's symptoms to
determine the extent to which they limit the claimant's functioning. For
this purpose, whenever statements about the intensity, persistence, or
functionally limiting effects of pain or other symptoms are not
substantiated by objective medical evidence, the undersigned must make
a finding on the credibility of the statements based on a consideration of
the entire case record.
The claimant alleges that she cannot work due to her anxiety, depression,
insomnia, neck pain, back pain, and arthritis (Exhibit B2E). The claimant
alleges that she cannot sleep at night and cannot be out in the public or
even carry a conversation. She stated that she left her last job due to
increased stress while working in a bank. She testified that she has panic
attacks four to five times a week. She stated that these are associated with
becoming nervous; however, she stated that she has never gone to the
hospital due to a panic attack.
After careful consideration of the evidence, the undersigned finds that the
claimant's medically determinable impairments could reasonably be
expected to cause the alleged symptoms; however, the claimant's
statements concerning the intensity, persistence and limiting effects of
these symptoms are not entirely credible for the reasons explained in this
decision.
In terms of the claimant's physical impairment, her alleged limitations are
not supported by the evidence. She only established care with Lourdes
Virtusio, M.D. in June 2012. However, the claimant was examined by
Henrietta Kovacs, M.D. in July 2011. She complained of trouble with a
headache and back ache. However, the MRI of the claimant's spine
showed only a "normal variant" and "minimal spurring along the superior
endplate of Ll. However, the claimant had no flank tenderness or
abnormal findings on the lower extremities. She had no swelling or
tenderness. Likewise, she was able to squat, walk on her heels, and walk
on her toes. She had a normal gait. Likewise, she confirmed that the only
problem arising from her TMJ was a recurrent headache. Dr. Kovacs
observed that she had normal range of motion and considered her back
impairment only mild (Exhibit B4F).
However, the claimant has sought treatment for her back pain but the
3
degree of irregularity as well as the other evidence of the treatment itself
fail to support the severity she alleges. Even most recently, the claimant’s
treatment notes showed no motor weakness, abnormal gait, or abnormal
neurological signs. The claimant’s only clinical sign was tenderness
“across the lumbar area.” Furthermore, she had only two examinations
total in 2013 (Exhibit B16F).
Even prior to that time, there was virtually no treatment for her back, and
the only positive clinical finding remained this general tenderness across
her lumbar spine area. She was never prescribed any ongoing narcotic
mediations. More importantly than the minimal, limited evidence that is
present, the treatment notes are virtually absence any recommendation for
treatment other than the medications prescribed.
There was no
suggestion for any orthopedic referral by her current physician or any
consideration to her complaint that she did not have the resources to see a
specialist (Exhibit B14F). Likewise, the extensive absence of significant
treatment or other clinical signs or diagnostic testing is far more consistent
with the indication that she does not require specialist treatment. Her
minimal back impairment was being treated adequately with the limited,
conservative treatment she has obtained.
In December 2012, the last examination with Dr. Virtusio, the claimant did
obtain one single psychiatric referral. However, He noted that she has
pain everywhere as well, despite a normal gait. He stated that she did
report having back pain at that time. However, his treatment notes also
largely fail to indicate any problems with her back or other significant
physical complaints.
His treatment also consists of solely three
examinations (Exhibit B13F). The claimant testified that she has Tricare,
and, ultimately, there is no reason that she has sought so little treatment.
Her limited follow-up over time and the conservative nature of her
treatment only serves to refute her allegations of symptoms from any
physical impairment to the degree that she has alleged.
Furthermore, the claimant was examined by William Crotwell, M.D. in
January 2013. Despite this being nearly the most recent examination in
the medical evidence, she confirmed that she had no surgery, no epidural
injections, no nerve conduction studies, and no MRI scans. Dr. Crotwell
described the claimant's treatment as conservative treatment with
medications, which the treatment notes clearly have shown. However, Dr.
Crotwell did perform x-rays of her cervical, thoracic and lumbar spine.
However, he stated that there was no objective evidence of any reason for
pain. He noted that she had no real treatment with a specialist or a
neurosurgeon. Even during his examination, the claimant only reported
pain with bending, twisting, or torqueing in the mid back. She reported
that her neck and right arm pain was persistent all day. She reported that
4
her lower back pain was persistent as a 9/10 all day. However, he
immediately noted that the claimant was able to move and twist. She also
denied any numbness or tingling despite the complaint that her lumbar
pain extended down the right posterior thigh. He also noted that she got
up and down from the examination table without any difficulty. He
stated that she used no assistive device and reported cooking, cleaning,
driving locally, and walking two to three blocks. She also was able to flex
past ninety degrees while sitting and bending. She removed her socks
with "no difficulty at all." He stated that she did only forward flex for
approximately thirty or forty degrees, but he noted that this was a poor
attempt based on the bending she had done already in the office. He
stated that she had no spasms in the thoracic or lumbar area. He stated
that her straight leg raising test was questionable on the left and suspect
also on the right. He stated that she did this activity on her own without
pain, but the testing appeared painful with even passive movements. He
noted that she had no scoliosis or other deformity. Ultimately, he
concluded that she would be able to carry out medium, light, or sedentary
work. [H]e stated that she would definitely be able to work for an eight
hour workday. He explicitly stated that he found no major orthopedic
problems with the claimant at all. He completed a form that, based on the
limitations, places the claimant at the very heavy exertional level.
However, he stated that she can only frequently bend, squat, crawl, or
climb (Exhibit B16F).
Still, the claimant reported that she has been prescribed a number of
medications for pain, anxiety, and to sleep over time. She reported only
dizziness and drowsiness as reported side effects of her medications in
Exhibit 2E and she has not identified any other recurrent symptom
according to the treatment notes. Although it is obvious that drowsiness
is not a side effect of a medication taken to sleep, the risk of over-sedation
is possible. Therefore, extensive consideration has been given to the side
effects or direct effects of the claimant's medications in the claimant's
overall limitations (Exhibit B2E). However, the effects of these complaints
would be more than adequately accommodated with the limitations
regarding work around unprotected machinery or work around
unprotected heights.
Therefore, the claimant is given the benefit of the doubt that she cannot
lift and carry heavy weight. She should lift and carry no more than
twenty-five pounds frequently or fifty pounds occasionally due to her
back impairment, despite its mild nature. Similarly, due to her physical
complaints and the possible side effects of her medications that were
reported, the claimant can only frequently climb ladders, ropes, or
scaffolds, even ramps or stairs. She also must avoid concentrated
exposure to work around unprotected machinery or work around
5
unprotected heights. Furthermore, due to her back impairment the
claimant can no more than frequently crouch and crawl or even balance
and stoop.
In terms of her mental impairments, the claimant's alleged limitations also
are not fully supported by the evidence. Although the claimant reports
difficulty with interpersonal interaction, she has also suggested some
problems in concentration. Still, the claimant reported that she has no
problems with her personal care. She even reported that she can prepare
simple meals, clean, and do the laundry despite her limited assertions of
any concentration problem. The claimant even confirmed that she does
these activities without encouragement from others that she needs to do
them. She stated that she does go outside daily. She stated that she can
drive short distances in town. She stated that she even shops weekly for
forty-five minutes to one hour at each time. Even if that were time spent
with her husband in the store, her own interaction with others to
undertake that activity is inconsistent with her allegations.
She
acknowledged that she even can pay bills and handle bank accounts. She
stated that she can drop bills off at the post office that need to be mailed.
Still, she claims that she has no interest in any conversation or activities
with others at all. On the other hand, she denied having any problems
getting along with authority figures or ever being laid off for problems
getting along with others. It is acknowledged that she may have
experienced difficulty in her last banking job; however, she acknowledged
herself that this was a high stress situation caused by a particular
manager. She reported not handling stress well; nevertheless, she stated
that changes to her routine are not a problem. She even reported that she
visits others and talks on the phone or the computer to other people. She
even confirmed that she attends church regularly. She ultimately stated
that she only "sometimes cannot face people." Nonetheless, in that same
answer, she suggests that she "cannot carry [on] a conversation" (Exhibit
B4E, emphasis added). Nevertheless, the degree of her allegations is
inconsistent with her reports that she shops because, while limited, she
must interact in that situation. She also must interact, to some degree,
even to drive.
With regard to concentration or memory complaints, the claimant even
acknowledged that she can pay attention for fifteen to twenty minutes and
follow either written or spoken instructions adequately. She even stated
that she can remind herself to take medications appropriately by keeping
a note pad. Most recently, following her examination of the claimant, Dr.
LaCostay [sic] noted that she was inconsistent in her ability to perform
simple one and two digit addition, subtraction, multiplication, and,
division problems without the use of paper and pencil while not being
6
able to perform even serial threes. The claimant made numerous errors
and took an excessive amount of time to respond. Still, she could count
backward from 20 to one, spell the word "world." backward, and, name
the months of the year in reverse order without error. Dr. LaConsay
stated that the claimant can understand, carry out, and remember simple
instructions. She stated only that tasks that are more complex in nature
and that require multiple steps might be more challenging for her (Exhibit
B15F).
Nevertheless, the most significant inconsistency with the claimant's
complaints of debilitating panic attacks is that she has extensively failed to
obtain any treatment with a mental health specialist. She confirmed
repeatedly through the treatment notes and at the hearing that she has
Tricare insurance. Even beyond that coverage, she confirmed that she
obtains a military pension of some type that provides her $3800.00 a
month. She could be excused for not obtaining extensive treatment;
however, she has chosen to obtain no treatment with any specialist
whatsoever, even from a free or reduced cost source. Beyond the issue of
her unwillingness to obtain treatment, the infrequency and conservative
nature of treatment even from her general practitioners, particularly
regarding the issue of mental health, but also regarding all of her
impairments, provides the claimant no support in the extent of her
allegations. With regard to mental health, she has never required
inpatient treatment, emergency treatment, specialist treatment, or even
individual therapy. There is no evidence that she even sought out a
counselor, community program, or church program of any type. The
claimant has virtually no attempts to change medications or even
suggestions that her medications are ineffective during treatment. A
single indication during treatment that they "will do a psychiatric referral"
in December 2012 has not occurred. In fact, she stopped even obtaining
treatment from Dr. Virtusio following that recommendation (Exhibits
B13F, B14F, and B17F). The claimant testified that she has never been
treated by a psychiatrist or psychologist.
The claimant testified that she only takes medications to treat her panic
attacks. She testified that she stays in the bed at those times. However,
she testified that she does not even perform housework for herself. She
stated that her husband performs these duties. Although she reported this
same caveat in Exhibit B4F, she ultimately still concluded that there were
a large number of activities that she did perform herself that are
inconsistent with her allegations that the panic attacks or depression are
debilitating to the degree she suggests.
The claimant did complain of “stress” during treatment for other
7
complaints in May 2009. Nevertheless, at that time, she denied all anxiety,
depression, and difficulty sleeping, specifically. She was provided a brief
course of Lexapro. However, there was virtually no other treatment
(Exhibit B1F). She was obtaining treatment for her physical complaints as
well as routine testing for other conditions; however, she simply began to
be prescribed Pristiq, which has never changed in dosage or frequency,
and briefly amitriptyline, which as also never been adjusted with regard
to frequency or amount taken. The claimant was advised only to take
amitriptyline at night. Likewise, she has always taken extended release
Pristiq (Exhibits B13F, B14F, and B17F).
Most recently, during treatment with Dr. Ndolo, the review of symptoms
indicates that she "denies mood, sleep, and ETOH problems" during her
examinations in both February and April 2013. She clearly indicated her
history of problems. Nonetheless, his examination report failed to even
include any consideration of mental health problems except for her
medical history. Moreover, those two examinations make up the entirety
of her 2013 treatment (Exhibit B17F).
Even prior to that time, the claimant only began treatment at all with
amitriptyline in December 2012. However, obviously, given the
recommendation to take the medication at bedtime, it was also related to
complaints of insomnia. Although the claimant was diagnosed with
"depressive disorder other" at that time, there was no evidence of any
clinical findings of depression in the examination report. She even still
"denies mood, sleep and ETOH problems" according to that very
examination report. Regardless of [t]his inconsistency, the claimant did
state that she had "severe stress and depression" this time. She stated that
her medications were not working. On the other hand, she never reported
panic attacks, her nearly sole complaint at the hearing. Although the 2013
treatment notes completely fail to provide the claimant any support, she
did have some treatment in 2012. However, even at that point, it was still
infrequent and exceptionally conservative.
She had medication
adjustments and changes for insomnia symptoms. However, there was no
change for the treatment of her depression or anxiety (Exhibit Bl4F). In
fact, at the hearing, she testified that she stays in bed all day. This is
directly contradictory to the repeated complaints of insomnia during
treatment. Even most recently, she was still taking at least one sleeping
pill, if amitriptyline were to be attributed to only other conditions (Exhibit
B17F).
Moreover, longitudinally, the treatment notes themselves document
inconsistency in even the claimant's own reports. She had no interest in
doing anything in December 2012 due to her mental impairments (Exhibit
Bl3F). Then, after virtually no change in treatment, and almost no
treatment at all for months, she reports fatigue, but also trouble falling
asleep. There was no mention of depression or anxiety during that
8
examination. The follow-up examination indicates that she is "not getting
enough sleep." Now, she testified that she sleeps all day. Furthermore,
Dr. Ndolo repeatedly documented that she was not complaining of mood
or sleep problems in his review of symptoms. The claimant never
reported "panic attacks" (Exhibits B14F and B17F). Now, the claimant
testified that she has panic attacks several times a week that would
prevent her from working. Even if these panic attacks included and
accompanied general anxiety symptoms also, Dr. Ndolo's treatment notes
are, at best, conservatively treating her condition, and, at worst for the
claimant, documenting that this minimal degree of treatment is effective.
There is only one single report that medications were not working, and
that examination led him to add a medication (Exhibit 14F).
Given those conditions, Dr. Kravitz's endorsement of the state agency
decision and the opinion by Dr. Koulianos that the claimant can
understand, remember, and carry out short, simple instructions; have
infrequent contact with the public; and have minimal changes in the work
setting are the most consistent opinions with the entirety of the evidence
(Exhibits B3F and B10F). Furthermore, more recently, Dr. LaConsay also
stated that she can understand, carry out, and remember simple
instructions. She also stated that the claimant . . . could be expected to
respond appropriately to supervision, co-workers, and, work, pressures in
a work setting (Exhibit B15F).
Therefore, despite her combination of impairments, the claimant can still
perform simple, routine tasks with simple workplace decisions and few
workplace changes. However, I give her full benefit of the doubt that she
should have only occasional interaction with the public or coworkers.
As for the opinion evidence, great weight must be given to the opinion
evidence in Exhibit B1F reiterating the limitations documented on Exhibit
B7F. These opinions are provided by an "acceptable medical source."
Likewise, they are the largely consistent opinions with the remainder of
the evidence.
However, greatest weight is given to the opinion of William A Crotwell,
M.D. His specialization in orthopedic medicine provides his opinion
greatest weight. His opinions are extensively consistent with the medical
evidence and the most consistent opinions regarding the specific function
by function limitations. Moreover, his examination report and the
findings provide his opinion vast support.
Great weight is given to the opinion of Dr. Kravitz and Dr. Koulianos.
Their conclusions are the most consistent with the remainder of the
evidence. Their specializations in mental health treatment provide their
9
opinions added weight. Furthermore, they are largely consistent with the
observations throughout the treatment notes regarding the limited nature
of symptoms and the effectiveness of treatment over time.
However, I cannot give any significant weight to the opinion evidence
expressed on the form in Exhibit 15F. It is not consistent with the
narrative examination report, the GAF score of 55 she provides, or the
notation that the claimant is noncompliant with large portions of the
examination. These conclusions are even directly inconsistent with the
claimant's own self reports in Exhibit B4E or the moderate, limited nature
of the treatment advised or obtained through Dr. Ndolo or any other
source. I also note that the claimant denied having taken any medications
the day of Dr. LaConsay's examination. I give far greater weight to Dr.
LaConsay's narrative opinion and the GAF of 55.
I also give no weight to the opinion expressed on the form in Exhibit B12F.
Although this is completed by Dr. Ndolo, a treating physician, he is not a
mental health specialist. His responses on this form are inconsistent with
any of his treatment notes. Likewise, his failure to ever have referred the
claimant to a specialist or even significantly change his limited treatment
of the claimant is inconsistent with the degree of limitations arising from
her mental impairment that he or the claimant have alleged. The
infrequency of Dr. Ndolo's treatment and the moderate nature of his
treatment both provide his opinion in Exhibit B12F no significant weight.
In sum, the above residual functional capacity assessment is supported by
the inconsistency of the claimant's symptoms over time, the effectiveness
of medications suggested by their consistency over time, the observed
willingness of her treating physician to change medication less than fully
effective, the activities of daily living inconsistent with the claimant's
allegations, the lack of consistency in the diagnostic testing or clinical
signs evident over time, the narrative opinion of Dr. LaConsay, the
opinion of Dr. Koulianos as reinforced by Dr. Kravitz, the opinion
evidence in Exhibit B11F, and the opinion of Dr. Crotwell.
6.
The claimant is unable to perform any past relevant work (20
CFR 404.1565).
*
*
*
7.
The claimant was born on December 24, 1956 and was 54 years
old, which is defined as an individual closely approaching advanced
age, on the alleged disability onset date. The claimant subsequently
changed age category to advanced age (20 CFR 404.1563).
8.
The claimant has at least a high school education and is able to
10
communicate in English (20 CFR 404.1564).
9.
Transferability of job skills is not material to the determination
of disability because using the Medical-Vocational Rules as a
framework supports a finding that the claimant is "not disabled,"
whether or· not the claimant has transferable job skills (See SSR 82-41
and 20 CFR Part 404, Subpart P, Appendix 2).
10. Considering the claimant's age, education, work experience, and
residual functional capacity, there are jobs that exist in significant
numbers in the national economy that the claimant can perform (20 CFR
404.1569 and 404.1569(a)).
In determining whether a successful adjustment to other work can be
made, the undersigned must consider the claimant's residual functional
capacity, age, education, and work experience in conjunction with the
Medical-Vocational Guidelines, 20 CFR Part 1404, Subpart P. Appendix 2.
If the claimant can perform all or substantially all of the exertional
demands at a given level of exertion, the medical-vocational rules direct a
conclusion of either "disabled" or "not disabled" depending upon the
claimant's specific vocational profile (SSR 83-11). When the claimant
cannot perform substantially all of the exertional demands of work at a
given level of exertion and/or has nonexertional limitations, the medicalvocational rules are used as a framework for decisionmaking unless there
is a rule that directs a conclusion of "disabled" without considering the
additional exertional and/or nonexertional limitations (SSRs 83-12 and
83-14). If the claimant has solely nonexertional limitations, section 204.00
in the Medical-Vocational Guidelines provides a framework for
decisionmaking (SSR 85-15).
If the claimant had the residual functional capacity to perform the full
range of medium work, a finding of "not disabled" would be directed by
Medical-Vocational Rule 203.22 and Rule 203.15. However, the claimant's
ability to perform all or substantially all of the requirements of this level of
work has been impeded by additional limitations. To determine the
extent to which these limitations erode the unskilled medium
occupational base, the Administrative Law Judge asked the vocational
expert whether jobs exist in the national economy for an individual with
the claimant's age, education, work experience, and residual functional
capacity. The vocational expert testified that given all of these factors the
individual would be able to perform the requirements of representative
occupations such as packager, DOT Code 920.587-018; laundry aide, DOT
Code 323.687-010; silver wrapper, DOT Code 318.687-018; and night
cleaner, DOT Code 323.687-014. The vocational expert testified that there
are approximately 4,000 jobs as a packager; 4,000 jobs as a laundry aide;
11
1,200 jobs as a silver wrapper; and 3,700 jobs as a night cleaner in the state
of Alabama. She testified that there are approximately 330,000 jobs as a
packager; 400,000 jobs as a laundry aide; 107,000 jobs as a silver wrapper;
and 293,000 jobs as a night cleaner in the national economy.
Pursuant to SSR 00-4p, the undersigned has determined that the
vocational expert's testimony is consistent with the information contained
in the Dictionary of Occupational Titles.
Based on the testimony of the vocational expert, the undersigned
concludes that, considering the claimant's age, education, work
experience, and residual functional capacity, the claimant is capable of
making a successful adjustment to other work that exists in significant
numbers in the national economy. A finding of "not disabled" is therefore
appropriate under the framework of the above-cited rules.
11. The claimant has not been under a disability, as defined in the
Social Security Act, from February 26, 2011, through the date of this
decision (20 CFR 404.1520(g)).
(Tr. at 15 & 17-25 (emphasis in original)). The Appeals Council affirmed the ALJ’s
decision (id. at 1-3), and, thus, the hearing decision became the final decision of the
Commissioner of Social Security.
DISCUSSION
In all Social Security cases, an ALJ utilizes a five-step sequential evaluation when
determining whether a claimant is disabled, which considers
(1) whether the claimant is engaged in substantial gainful activity; (2) if
not, whether the claimant has a severe impairment; (3) if so, whether the
severe impairment meets or equals an impairment in the Listing of
Impairments in the regulations; (4) if not, whether the claimant has the
[residual functional capacity (“RFC”)] to perform her past relevant work;
and (5) if not, whether, in light of the claimant’s RFC, age, education and
work experience, there are other jobs the claimant can perform.
12
Watkins v. Comm’r of Soc. Sec., 457 Fed. App’x 868, 870 (11th Cir. 2012)2 (per curiam)
(citing 20 C.F.R. §§ 404.1520(a)(4), (c)-(f), 416.920(a)(4), (c)-(f); Phillips v. Barnhart, 357
F.3d 1232, 1237 (11th Cir. 2004)) (footnote omitted). The claimant bears the burden, at
the fourth step, of proving that he is unable to perform his previous work. Jones v.
Bowen, 810 F.2d 1001 (11th Cir. 1986). In evaluating whether the claimant has met this
burden, the examiner must consider the following four factors: (1) objective medical
facts and clinical findings; (2) diagnoses of examining physicians; (3) evidence of pain;
and (4) the claimant’s age, education and work history. Id. at 1005. Although “a
claimant bears the burden of demonstrating an inability to return to his past relevant
work, the [Commissioner of Social Security] has an obligation to develop a full and fair
record.” Schnorr v. Bowen, 816 F.2d 578, 581 (11th Cir. 1987) (citations omitted). If a
plaintiff proves that he cannot do her past relevant work, as here, it then becomes the
Commissioner’s burden—at the fifth step—to prove that the plaintiff is capable—given
his age, education, and work history—of engaging in another kind of substantial
gainful employment that exists in the national economy. Phillips, 357 F.3d at 1237; Jones
v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999), cert. denied, 529 U.S. 1089 (2000); Sryock v.
Heckler, 764 F.2d 834, 836 (11th Cir. 1985).
The task for the Magistrate Judge is to determine whether the Commissioner’s
decision to deny claimant benefits, on the basis that he can perform those jobs identified
by the vocational expert (“VE”) during the administrative hearing, is supported by
substantial evidence. Substantial evidence is defined as more than a scintilla and means
such relevant evidence as a reasonable mind might accept as adequate to support a
2
“Unpublished opinions are not considered binding precedent, but they
may be cited as persuasive authority.” 11th Cir.R. 36-2.
13
conclusion.
Richardson v. Perales, 402 U.S. 389 (1971).
“In determining whether
substantial evidence exists, we must view the record as a whole, taking into account
evidence favorable as well as unfavorable to the [Commissioner’s] decision.” Chester v.
Bowen, 792 F.2d 129, 131 (11th Cir. 1986).3
Courts are precluded, however, from
“deciding the facts anew or re-weighing the evidence.” Davison v. Astrue, 370 Fed.
App’x 995, 996 (11th Cir. 2010) (per curiam) (citing Dyer v. Barnhart, 395 F.3d 1206, 1210
(11th Cir. 2005)).
And, “’[e]ven if the evidence preponderates against the
Commissioner’s findings, [a court] must affirm if the decision reached is supported by
substantial evidence.’” Id. (quoting Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 115859 (11th Cir. 2004)).
On appeal to this Court, the Plaintiff asserts three reasons why the
Commissioner’s decision to deny her benefits is in error (i.e., not supported by
substantial evidence): (1) the ALJ erred in giving greater weight to the opinions of nonexamining, record reviewing consultants than to the opinion of the consultative
examiner, Dr. Kendra LaConsay, Psy.D.; (2) the ALJ erred in rejecting the opinions of
Dr. Joseph Ndolo, M.D., the Plaintiff’s treating physician; and (3) the ALJ erred by
identifying available jobs at the light, unskilled level for the Plaintiff as Grid Rules
202.04 and 202.06 direct a finding of disabled if she is limited to light, unskilled work.
The undersigned initially will address the first two arguments together and then
consider the remaining issue of the ALJ’s identification of jobs existing in the national
economy that the Plaintff can perform.
3
This Court’s review of the Commissioner’s application of legal principles,
however, is plenary. Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
14
I.
The ALJ’s Assessment of the Opinions of Dr. Ndolo and Dr. LaConsay
The Plaintiff contends that the ALJ erred in rejecting the opinions of Dr. Ndolo
provided in his mental RFC Questionnaire. On August 3, 2012, Dr. Ndolo completed
said questionnaire, (Tr. at 289-90), indicating that the Plaintiff has a “marked”
restriction of daily living; a “marked” degree of difficulty in maintain social
functioning; “marked” deficiencies of concentration, persistence, or pace resulting in
failure to complete tasks in a timely manner (in a work setting or elsewhere); a
“marked” limitation in ability to respond to supervision and to co-workers in a work
setting; and a “marked” limitation in ability to perform simple and repetitive tasks in a
work setting. (Id. at 289). Dr. Ndolo also stated that the Plaintiff has three episodes or
decomposition in work or work-like setting which cause her to withdraw from that
situation or to experience exacerbation of signs and symptoms (which may include
deterioration of adaptive behaviors). (Id.).
As the Plaintiff's treating psychiatrist, Dr. Ndolo’s opinions “must be given
substantial
or
considerable
weight
unless
‘good
cause’
is
shown
to
the
contrary.” Gilabert v. Comm'r of Soc. Sec., 396 F. App’x 652, 655 (11th Cir. 2010) (per
curiam) (quoting Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997)). Good cause is
shown 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.”
Id.
(quoting Phillips, 357 F.3d at 1241). “Where the ALJ articulate[s] specific reasons for
failing to give the opinion of a treating physician controlling weight, and those reasons
are supported by substantial evidence, there is no reversible error.” Id. (quoting
Moore v. Barnhart, 405 F.3d 1208, 1212 (11th Cir. 2005)).
15
Here, the ALJ gave Dr. Ndolo’s opinions set forth in his mental RFC
Questionnaire “no weight,” stating:
I also give no weight to the opinion expressed on the form in Exhibit B12F.
Although this is completed by Dr. Ndolo, a treating physician, he is not a
mental health specialist. His responses on this form are inconsistent with
any of his treatment notes. Likewise, his failure to ever have referred the
claimant to a specialist or even significantly change his limited treatment
of the claimant is inconsistent with the degree of limitations arising from
her mental impairment that he or the claimant have alleged. The
infrequency of Dr. Ndolo's treatment and the moderate nature of his
treatment both provide his opinion in Exhibit B12F no significant weight.
(Tr. at 23).
The undersigned construes the ALJ’s comments as an implicit (if not
explicit) finding that Dr. Ndolo’s opinions were conclusory and inconsistent with the
doctor’s own medical records, as well as not bolstered by other evidence of record.
Upon review of the record, the Court finds that the ALJ has shown good cause
by articulating specific reasons supported by substantial evidence for giving “no
weight” to Dr. Ndolo’s opinion. As the ALJ stated, his conclusions in the mental RFC
questionnaire are conclusory and inconsistent with his treatment notes. His treatment
notes reflect 11 visits with the Plaintiff between March 6, 2012 and April 3, 2013. (Id. at
313-41 & 356-63).
While the treatment notes show that the Plaintiff periodically
complained about sleeping issues, anxiety, and depression, none of the notes indicate
that Dr. Ndolo, who is not a psychiatrist or a psychologist, performed any mental status
examinations or otherwise evaluated her in an objective manner that would
substantiate his impressions or opinions of her psychiatric limitations.
(See id.).
Further, Dr. Ndolo’s treatment of the Plaintiff regarding these alleged mental issues was
infrequent and inconsistent, as well as conservative in light of the severity of the
Plaintiff’s mental limitations indicated in his mental RFC questionnaire. As the ALJ
carefully detailed in his decision, the treatment notes reflect that Dr. Ndolo irregularly
16
prescribed the Plaintiff medications for depression, anxiety, and insomnia and that
when the medicine was prescribed, the dosage and frequency of such prescriptions
largely remained unchanged. (See id. at 21-23, 313-41 & 356-63). In addition, despite the
supposed severity of the Plaintiff’s limitations, Dr. Ndolo never referred the Plaintiff to
a specialist or significantly altered his moderate treatment of the Plaintiff’s mental
issues.4 Contrarily, however, Dr. Ndolo’s final three treatment notes, the final two of
which make up the entirety of the Plaintiff’s 2013 treatment, reflect that the Plaintiff
“denies mood, sleep, and ETOH problems.” (See id. at 330-32 & 356-63). Accordingly,
the Court finds that the ALJ’s articulated reasons for giving no weight to the August 3,
2012 mental RFC findings of Dr. Ndolo are supported by substantial evidence and, thus,
the ALJ did not commit reversible error.
The undersigned now turns to the ALJ’s assessment of the opinions of Dr.
LaConsay. The Plaintiff contends that the ALJ erred in giving greater weight to the
opinions of Dr. Joanna Koulianos and Dr. Larry Kravitz, non-examining, recordreviewing consultants than to the opinion of the consultative examiner, Dr. LaConsay.
The law in the Eleventh Circuit is clear that while “’the opinion of an examining
physician is generally entitled to more weight than the opinion of a non-examining
physician, the ALJ is free to reject the opinion of any physician when the evidence
supports a contrary conclusion’” and the ALJ articulates his reasoning for rejecting the
4
While the Plaintiff argues that Dr. Ndolo did not refer her to a specialist
because her insurance did not cover psychological treatment, there is no evidence that
she attempted to obtain mental treatment from a specialist, even from a free or reduced
cost source. Further, Dr. Ndolo’s treatment records do not indicate that specialized
treatment was recommended or necessary. However, even assuming the Plaintiff’s
insurance argument is true, it does not explain the conservative and infrequent nature
of Dr. Ndolo’s personal treatment of the Plaintiff’s mental issues.
17
subject opinion. Sryock, 764 F.2d at 835 (quoting Oldham v. Schweiker, 660 F.2d 1078,
1084 (5th Cir. Unit B 1981)).; see also Hickel v. Comm. of Soc. Sec., 539 F. App’x 980, 985-86
(11th Cir. 2013) (unpublished).
Here, the ALJ stated that he could not give “any significant weight” to Dr.
LaConsay’s opinion in the Medical Source Statement of Ability to Do Work-Related
Activities (Mental) form (the “MSS Form”) attached to her consultative psychological
evaluation.
(Tr. at 23).
The ALJ provided several reasons for this determination,
specifically, (1) her conclusions in the MSS Form are not consistent with her narrative
examination report, the GAF score of 55 she provides, or the notation that the Plaintiff
was noncompliant with large portions of the examination; (2) her conclusions in the
MSS Form are directly inconsistent with the Plaintiff’s own statements in her function
report and the moderate, limited nature of the treatment advised or obtained through
Dr. Ndolo or any other source; and (3) the Plaintiff denied having taken any
medications the day of Dr. LaConsay’s examination. (Id.). Instead, the ALJ gave greater
weight to Dr. LaConsay’s opinion in the narrative examination report and the GAF of
55. (Id.).
The Court finds that no error was committed because the evidence of record, as
the ALJ articulated in his decision, supports his determination to not give “any
significant weight” to Dr. LaConsay’s opinions in the MSS Form. In the MSS Form, Dr.
LaConsay states, inter alia, that the Plaintiff has a “moderate” restriction in
understanding and remembering complex instructions; “moderate” restrictions in
interacting with supervisors, co-workers, and the public; “marked” restrictions in
carrying out complex instruction, making judgments on complex work-related
decisions, and responding appropriately to usual work situation and changes in a
routine work setting. (Id. at 348-49). Dr. LaConsay stated that her assessment of the
18
Plaintiff’s limitations in interacting with others and responding to work situations was
supported by the following factors: “[s]ignificant depression & anxiety lead her to avoid
people; easily overwhelmed and quickly becomes disorganized with the most minimal
of stressors.” (Id. at 349). Dr. LaConsay also stated that in light of the Plaintiff’s
performance on simple tasks administrated during her examination, she is slower to
process information and to formulate a response. (Id.).
As the ALJ stated, these conclusions are not consistent with the narrative report
in her consultative psychological evaluation. Although Dr. LaConsay did state in her
report that the Plaintiff’s overall affective expression was “dysphoric” and that she is
easily overwhelmed by the most minimal of stressors, she specifically stated that
because the Plaintiff “was non-compliant with certain aspects of this examination . . .,
[o]verall, this is not felt to be an accurate and representative assessment of her abilities.”
(Id. at 345-47).5 Further, despite being prescribed several medications, including ones
for anxiety, depression, and insomnia, the Plaintiff denied having taken any
medications the day of Dr. LaConsay’s examination. (Id. at 343-44).6
5
The Plaintiff argues that “[t]he fact that Mrs. Wright did not complete one of
several tests is quite different from being noncompliant with ‘large portions of the
examination’ as stated by the ALJ. (Doc. 12 at 12). However, Dr. LaConsay did not
state that the Plaintiff was noncompliant with only one test, but that the Plaintiff was
noncompliant with aspects of the examination with one example being the Rotter
Incomplete Sentences Blank. (Tr. at 347). Nevertheless, no matter how many aspects of
the examination with which the Plaintiff was noncompliant, the noncompliance was
enough for Dr. LaConsay to opine that “[o]verall, this is not felt to be an accurate and
representative assessment of [the Plaintiff’s] abilities.” (id. (emphasis added)).
6
Notably, Dr. LaConsay stated in the narrative report that “with both
participation in and compliance with psychological and/or psychiatric interventions to
deal with her depression and anxiety, she could re-enter the work force.” (Tr. at 347).
19
In addition, Dr. LaConsay’s opinions in the MSS Form about the Plaintiff’s
limitations in carrying out complex instructions and interacting with others are
inconsistent with the Plaintiff’s own statements in her function report that she can drop
off pay bills, follow instructions well, handle bank accounts, use a checkbook, drive a
car, spend time with others, handle changes in routine well, go to the post office to drop
off bills, go to church regularly, and shop for groceries for 45 minutes to an hour a
week. (Id. at 16 & 188-89).7 Dr. LaConsay assigned the Plaintiff a global assessment of
functioning (“GAF”) of 55, which indicates only moderate symptoms and is inconsistent
with her opinion that the Plaintiff had several “marked” restrictions. (see id. at 346-47).
Finally, as the ALJ painstakingly examined throughout his decision, Dr. LaConsay’s
conclusions in the MSS Form regarding the Plaintiff’s “significant depression &
anxiety” is contradicted by the conservative, limited nature of the treatment advised or
obtained through Dr. Ndolo or any other source. (See id. at 18-23, 291-41 & 356-63).8 For
these reasons, the Court finds that the evidence, as articulated by the ALJ, supports an
opinion regarding the Plaintiff’s mental restrictions contrary to Dr. LaConsay’s
7
The Plaintiff also denied having any problems getting along with authority
figures or ever being laid off for problems getting along with others. (Tr. at 190-91).
Although it is acknowledged that she may have experienced difficulty in her last job,
she testified that this was a high stress situation caused by a particular manager. (Id. at
34-35). She ultimately stated that she only "sometimes cannot face people." (Id. at 191).
8
As the ALJ indicated, the Plaintiff has never required inpatient treatment,
emergency treatment, specialist treatment, or even individual therapy for mental health
issues. (Tr. at 21). Also, there is no evidence that the Plaintiff even sought out a
counselor, community program, or church program of any type. (Id.). Further, there is
only one indication during treatment with a physician–Dr. Lourdes Virtusio in
December 2012–that they "will do a psychiatric referral,” but such referral never
occurred. (See id. at 291). In fact, the Plaintiff stopped obtaining treatment from Dr.
Virtusio following that recommendation, and the Plaintiff testified that she has never
been treated by a psychiatrist or psychologist. (Id. at 21 & 36-39).
20
conclusions in the MSS Form. Thus, the ALJ’s decision to not give “any significant
weight” to the opinion evidence MSS Form is supported by substantial evidence.
As for Dr. Koulianos and Dr. Kravitz, the ALJ gave their opinions “great weight”
because “[t]heir conclusions are the most consistent with the remainder of the
evidence[,] [t]heir specializations in mental health treatment provide their opinions
added weight[, and their opinions] are largely consistent with the observations
throughout the treatment notes regarding the limited nature of symptoms and the
effectiveness of treatment over time.” (Id. at 23). Dr. Koulianos provided her opinions
through a Psychiatric Review Technique (“PRT”) form and a Mental Residual
Functional Capacity Assessment, both dated June 15, 2011. (See id. at 241-58). In the
PRT form, Dr. Koulianos opined that the Plaintiff has “moderate” difficulties in
maintaining social functioning and concentration, persistence, or pace. (See id. at 251).
In the Mental RFC Assessment, Dr. Koulianos concluded that the Plaintiff is not
“markedly limited” in any area but is “moderately limited” in her ability to (a)
understand and remember detailed instructions; (b) carry out detailed instructions; (c)
maintain attention and concentration for extended periods; (d) interact appropriately
with the general public; and (e) respond appropriately to changes in the work setting.
(Id. at 255-56). On August 29, 2011, Dr. Kravitz conducted a review of Dr. Koulianos’
form and assessment indicating his agreement. (See id. at 282-86).
An ALJ is “required to consider the opinions of non-examining state agency
medical and psychological consultants because they ‘are highly qualified physicians
and psychologists who are also experts in Social Security disability evaluation.’” Square
v. Colvin, No. 15-00037-B, 2016 WL 1175274, at *3 (S.D. Ala. Mar. 25, 2016) (citing Milner
v. Barnhart, 275 F. App’x 947, 948 (11th Cir. 2008) (unpublished)); see also 20 C.F.R.
§404.1527(e)(2)(i). Further, an ALJ may rely on opinions of non-examining sources
21
when they do not conflict with those of examining sources.
Id.
As previously
discussed, the ALJ (a) articulated good cause to give “no weight” to Dr. Ndolo’s
opinion in his mental RFC questionnaire and (b) properly did not give “any significant
weight” to Dr. LaConsay’s opinion in the MSS Form. As a result, the opinions of Dr.
Koulianos and Dr. Kravitz do not conflict with any credible examining source, and,
thus, their opinions were properly considered by the ALJ. See Thomas v. Colvin, No. 1100569-B, 2015 WL 4458861, at *14 & n.8 (S.D. Ala. July 21, 2015).9 For these reasons, and
because the Plaintiff does not make any additional arguments regarding the ALJ’s
determination of her RFC,10 the Court finds that the ALJ’s RFC determination is
supported by substantial evidence in the record.
II.
The ALJ’s Identification of Jobs
At the fifth step of the Commissioner’s evaluation, the Commissioner must
establish that a significant number of jobs exist in the national economy that the Plaintiff
can perform given her RFC, age, education, and work experience. See, e.g., Bellew v.
Acting Comm’r of Soc. Sec., 605 F. App’x 917, 930 (11th Cir. 2015) (citation omitted). “An
9
The Plaintiff also argues that the ALJ erred in giving greater weight to the
opinions of Dr. Koulianos and Dr. Kravitz than the opinions of Dr. LaConsay because
the documents reviewed by Dr. Koulianos precede the Plaintiff’s alleged onset date.
(Doc. 12 at 14). However, as the Court previously discussed in more detail, the ALJ
discredited Dr. LaConsay’s opinion in her MSS Form irrespective of the opinions of Dr.
Koulianos and Dr. Kravitz. (Tr. at 23). Instead, the ALJ considered the opinions of Dr.
Koulianos and Dr. Kravitz, as he was required to do, and found that their opinions were
consistent with the rest of the evidence, namely the treatment notes regarding the
limited and conservative nature of the Plaintiff’s symptoms and treatment. (Id. at 2023).
10
At the October 29, 2015 hearing before the Court, counsel for the Plaintiff
stated that the Plaintiff is not attacking any aspect of the ALJ’s RFC determination other
than his assessment of the opinion evidence provided by Dr. Ndolo, Dr. LaConsay, Dr.
Koulianos, and Dr. Kravitz.
22
ALJ may make this determination either by applying the Medical Vocational Guidelines
or by obtaining the testimony of a vocational expert.” Winschel v. Comm’r of Soc. Sec., 631
F.3d 1176, 1180 (11th Cir. 2011) (citing Phillips, 357 F.3d at 1239-40). Here, of course, in
finding that the Plaintiff could perform other work existing in significant numbers in
the national economy (see Tr. at 24-25), “the ALJ relied exclusively on the testimony of a
vocational expert[.]” Dial v. Comm’r of Soc. Sec., 403 F. App’x 420, 421 (11th Cir. 2010).
“’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.’”
Winschel, 631 F.3d at 1180 (quoting Wilson v. Barnhart, 284 F.3d 1219, 1227 (11th Cir.
2002) (per curiam)); see also Dial, 403 F. App’x at 421 (holding that where an ALJ failed
to include all of the claimant’s “employment limitations in the hypothetical questions
posed to the VE . . ., the VE’s testimony did not constitute substantial evidence upon
which the ALJ could rely.”).
In this case, the Plaintiff contends that the ALJ erred in finding that she can
perform work existing in significant numbers in the national economy because the ALJ
identified “silver wrapper” and “night cleaner,” two jobs at the light, unskilled level, as
available jobs the Plaintiff can perform. The Plaintiff contends that the identification of
these two jobs constitutes an error because Grid Rules 202.04 and 202.06 direct a finding
of “disabled” if the Plaintiff is limited to light, unskilled work. The ALJ, however, also
identified the occupations of “packager” and “laundry aide,” two jobs at the medium,
unskilled level provided by the VE at the hearing before the ALJ as occupations the
23
Plaintiff would be able to perform, as jobs existing in significant numbers in the national
economy.11 (Id. at 24-25).
Assuming arguendo that the ALJ did err in identifying the jobs of “silver
wrapper” and “night cleaner,” such error is harmless as the ALJ also identified two jobs
at the medium, unskilled level that the Plaintiff would be able to perform and that exist
in significant numbers in the national economy. See Caldwell v. Barnhart, 261 F. App’x
188, 190 (11th Cir. 2008) (unpublished) (affirming the lower court’s determination that
the ALJ’s failure to include certain limitations in the VE hypothetical was harmless error
because the omitted limitations would not affect the claimant’s ability to perform one of
the jobs identified by the VE as appropriate for the claimant), Robinson v. Colvin, No. 1400084-N, 2015 WL 1520431 at *12-14 (S.D. Ala. Apr. 2, 2015) (rejecting the claimant’s
argument that the ALJ erred by relying on a VE’s improper identification of two
occupations when the claimant did not object to the third job identified by the VE as
appropriate for the claimant), Blake v. Colvin, No. 2:13-cv-01799-LSC, 2014 WL 5393876,
at *7 (N.D. Ala. Oct. 23, 2014) (citations omitted) (“[E]ven if this Court were to agree . . .
that the ALJ did limit [the claimant] to unskilled work, his determination of the number
of jobs available to her in the national economy that are light or sedentary and unskilled
is still ‘significant,’ as required by the regulations. Even disregarding all semi-skilled
jobs . . . about which the VE testified and that the ALJ found [the claimant] could
perform, the ALJ still found that there exist—at the unskilled level—75,000 jobs
11
Specifically, as the ALJ stated in his decision, the VE testified that there are
approximately 4,000 “packager” jobs in the state in Alabama, 330,000 “packager” jobs in
the national economy, 4,000 “laundry aide” jobs in the state of Alabama, and 400,000
“laundry aide” jobs in the national economy. The Court notes that the Plaintiff does not
argue that she is unable to perform the jobs of “packager” or “laundry aide.”
24
nationally that [the claimant] could perform. The ALJ could have found these job
numbers alone to be ‘significant in the national economy.’ Accordingly, a remand to
correct this harmless error would be unwarranted; it would amount to ‘an empty
exercise,’ as the result of the ALJ's decision would not change.”), Brown v. Astrue, No.
3:11-cv-806-J-JRK, 2012 WL 2979046, at *3-6 (M.D. Fla. July 20, 2012) (“Plaintiff and the
Commissioner recognize that the VE likely erred in citing to the food checker position,
because it appears the VE actually described the position of food and beverage checker
(DOT number 211.482–018), a light duty position. This error is harmless given that the
VE cited to two other jobs with sufficient numbers in the national economy that Plaintiff
can perform, i.e. office helper (272,000 jobs nationally; 14,000 jobs in Florida) and cashier
II (283,000 jobs nationally; 9,230 jobs in Florida).”), Moorer v. Astrue, No.
3:11cv397/LAC/EMT, 2012 WL 3537023, at *9-10 (N.D. Fla. July 16, 2012) (“[E]ven if the
ALJ erred [by including most, but not all, of a specific physician’s opinions in the RFC
or by relying on the VE’s opinion that the claimant could perform jobs with the RFC
determined by the ALJ], the error was harmless because significant numbers of jobs
remain available even taking into account all of [said physician’s] opinions.”); see also
Brooks v. Barnhart, 133 F. App’x 669, 671 (11th Cir. 2005) (unpublished) (finding that the
ALJ’s determination that 840 jobs constituted a significant number in the national
economy was supported by substantial evidence), Allen v. Bowen, 816 F.2d 600, 602 (11th
Cir. 1987) (upholding an ALJ’s finding that work existed in significant numbers where
the VE testified that there were 174 small appliance repairman positions in the area
where the claimant resided).
Consequently, the Court finds that the ALJ’s
determination at the fifth step of the sequential evaluation–that a significant number of
jobs exist in the national economy that the Plaintiff can perform given her RFC, age,
education, and work experience–is supported by substantial evidence.
25
CONCLUSION
In light of the foregoing, it is ORDERED that the decision of the Commissioner
of Social Security denying the Plaintiff benefits be affirmed.
DONE and ORDERED this the 13th day of April 2016.
s/WILLIAM E. CASSADY
UNITED STATES MAGISTRATE JUDGE
26
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