Goree v. Colvin

Filing 25

MEMORANDUM OPINION AND ORDER that the decision of the Commissioner be AFFIRMED and that this action be DISMISSED. Signed by Magistrate Judge Katherine P. Nelson on 8/23/2017. (srr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
BETTY FULLER GOREE,
Plaintiff,
v.
NANCY A. BERRYHILL1,
Social Security Commissioner
Defendant.

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) CIVIL ACTION NO. 16-0417-N
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MEMORANDUM OPINION AND ORDER
In this action under 42 U.S.C. § 405(g) Plaintiff, Betty Goree, (“Goree”
or “Plaintiff”) seeks judicial review of an adverse social security ruling
denying supplemental security income. (Docs. 1, 18). With the consent of the
parties, the Court has designated the undersigned Magistrate Judge to
conduct all proceedings and order the entry of judgment in this civil action, in
accordance with 28 U.S.C. § 636(c), Federal Rule of Civil Procedure 73, and
S.D. Ala. GenLR 73. (See Docs. 22, 23). The parties moved to waive oral
argument and their request was granted.

(See Docs. 21, 24).

After

considering the administrative record and the memoranda of the parties, it is
ORDERED that the decision of the Commissioner be AFFIRMED and that
this action be DISMISSED.

Nancy A. Berryhill has replaced Carolyn Colvin and is now the acting Social Security
Commissioner.

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PROCEDURAL BACKGROUND
Plaintiff protectively applied for supplemental security income on May
1, 2013. (Doc. 18 at 1; Tr. 179)2. Plaintiff alleged a disability onset date of
February 15, 2012.

(Doc. 17; Fact Sheet).

Her application was initially

denied on July 24, 2013, after which she requested a hearing. (Doc. 18 at 1;
Tr. 112-115).

Plaintiff attended a hearing before an Administrative Law

Judge (“ALJ”) on July 15, 2014, and the ALJ rendered an unfavorable
decision on January 12, 2015. (Doc. 18 at 1; Tr. at 11-33, 125-51 ).
At the time of her application, Plaintiff was thirty eight years old, had
attended, but not completed, the twelfth grade, and had previous work
history as a cosmetologist.

(Doc. 17; Tr. at 57).

Plaintiff alleges she is

disabled due to depression/dysthymic disorder, high blood pressure, diabetes,
back pain (broad based protrusion at L4-5 with radiculopathy; disc bulge L5S1), hip pain, chronic keloid pain, anxiety/nervousness, obesity, side effects
from medication, and chronic pain syndrome. (Doc. 17). On January 12,
2015, an ALJ denied benefits after determining that Plaintiff was capable of
performing a limited range of light work.

(Tr. at 20). Plaintiff requested

review of the hearing decision, but the Appeals Council denied the request on
June 13, 2016. (Id. at 1-6).

This is Plaintiff’s second application for social security benefits. An ALJ denied Plaintiff’s
initial application on February 14, 2012. In May 2013, Plaintiff filed the application that is
the subject of this action, alleging that the day after she was denied, her condition
significantly worsened to the point she was no longer able to work. On March 22, 2013, the
Appeals Council upheld the denial. (Tr. at 22).

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Plaintiff asserts that the following grounds for error: (1) the ALJ erred
in failing to follow the Eleventh Circuit’s pain standard, (2) the ALJ’s
decision is not supported by substantial evidence; and (3) the ALJ failed to
include all of Ms. Goree’s limitations in the hypotheticals posed to the
vocational expert (“VE”). (Doc. 18 at 1). Defendant has responded to—and
denies—these claims. (Doc. 19, generally).
STANDARD OF REVIEW
“In Social Security appeals, [the Court] must determine whether the
Commissioner’s decision is ‘ “supported by substantial evidence and based on
proper legal standards. Substantial evidence is more than a scintilla and is
such relevant evidence as a reasonable person would accept as adequate to
support a conclusion.” ’ ” Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176,
1178 (11th Cir. 2011) (quoting Crawford v. Comm'r of Soc. Sec., 363 F.3d
1155, 1158 (11th Cir. 2004) (per curiam) (internal citation omitted) (quoting
Lewis v. Callahan, 125 F.3d 1436, 1439 (11th Cir. 1997))). However, the
Court “ ‘may not decide the facts anew, reweigh the evidence, or substitute
our judgment for that of the [Commissioner].’ ” Winschel, 631 F.3d at 1178
(quoting Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir. 2004)
(alteration in original) (quoting Bloodsworth v. Heckler, 703 F.2d 1233, 1239
(11th Cir. 1983))). “ ‘Even if the evidence preponderates against the
[Commissioner]’s factual findings, we must affirm if the decision reached is

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supported by substantial evidence.’ ”

Ingram, 496 F.3d at 1260 (quoting

Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)).
“Yet, within this narrowly circumscribed role, [courts] do not act as
automatons. [The court] must scrutinize the record as a whole to determine
if the decision reached is reasonable and supported by substantial
evidence[.]” Bloodsworth, 703 F.2d at 1239 (citations and quotation omitted).
See also Owens v. Heckler, 748 F.2d 1511, 1516 (11th Cir. 1984) (per curiam)
(“We are neither to conduct a de novo proceeding, nor to rubber stamp the
administrative decisions that come before us. Rather, our function is to
ensure that the decision was based on a reasonable and consistently applied
standard, and was carefully considered in light of all the relevant facts.”). “In
determining whether substantial evidence exists, [a court] must…tak[e] into
account evidence favorable as well as unfavorable to the [Commissioner’s]
decision.” Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986).
Although the “claimant bears the burden of demonstrating the
inability to return to [his or] her past relevant work, the Commissioner of
Social Security has an obligation to develop a full and fair record.” Shnorr v.
Bowen, 816 F.2d 578, 581 (11th Cir. 1987). See also Ellison v. Barnhart, 355
F.3d 1272, 1276 (11th Cir. 2003) (per curiam) (“It is well-established that the
ALJ has a basic duty to develop a full and fair record. Nevertheless, the
claimant bears the burden of proving that he is disabled, and, consequently,
he is responsible for producing evidence in support of his claim.” (citations

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omitted)).

“This is an onerous task, as the ALJ must scrupulously and

conscientiously probe into, inquire of, and explore for all relevant facts. In
determining whether a claimant is disabled, the ALJ must consider the
evidence as a whole.” Henry v. Comm'r of Soc. Sec., 802 F.3d 1264, 1267
(11th Cir. 2015) (per curiam) (citation and quotation omitted).
Where, as here, the ALJ denied benefits and the Appeals Council
denied review of that decision, the Court “review[s] the ALJ’s decision as the
Commissioner’s final decision.” Doughty, 245 F.3d at 1278. “[W]hen the
[Appeals Council] has denied review, [the Court] will look only to the
evidence actually presented to the ALJ in determining whether the ALJ’s
decision is supported by substantial evidence.” Falge v. Apfel, 150 F.3d 1320,
1323 (11th Cir. 1998).
DISCUSSION
At step two of the sequential process, the ALJ found that Plaintiff had
severe impairments of keloids, diabetes mellitus, hypertension, lumbar disc
disease with spondylosis/osteoarthritis, obesity, chronic pain syndrome, and
dysthymic disorder (versus major depression) (20 CFR 416.920(c)). (Tr. at
16).

At step three, the ALJ found that “[t]he claimant does not have an

impairment or combination of impairments that meets or equals the severity
of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix
1(20 CFR, 416.920(d), 416.925 and 416.926).” (Id. at 17). The ALJ then
determined Plaintiff’s RFC as follows:

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After careful consideration of the entire record, the undersigned finds
that the claimant has the residual functional capacity to perform light
work as defined in 20 CFR 416.967(b) except that on a function-byfunction basis, the claimant can occasionally push-pull with upper
extremities. She cannot climb ladders, ropes, or scaffolds. She cannot
crawl. She can occasionally climb ramps and stairs and crouch. She
can frequently reach except she can only occasionally overhead reach.
She must avoid concentrated exposure to extreme temperatures. She
must avoid all exposure to dangerous machinery and unprotected
heights. Mentally, she can perform simple, routine and repetitive
tasks. She can maintain attention and concentration to perform such
tasks for two-hour increments throughout the workday. She can have
casual contact with the general public throughout the workday.
(Tr. at 20). With the help of a vocational expert, the ALJ then determined, at
step five, that Plaintiff was capable of performing her past relevant work as a
day worker and hand packer as previously performed by the claimant. It was
additionally determined that Plaintiff was capable of performing other jobs
which existed in the national economy and that Plaintiff was not disabled.
(Id. at 27-28).
Plaintiff asserts that the following grounds for error: (1) the ALJ erred
in failing to follow the Eleventh Circuit’s pain standard, (2) the ALJ’s
decision is not supported by substantial evidence; and (3) the ALJ failed to
include all of Ms. Goree’s limitations in the hypotheticals posed to the
vocational expert. (Doc. 18 at 1). Defendant contends the ALJ’s followed the
pain standard, that his decision was based on substantial evidence, and that
there were no deficiencies with the vocational hypotheticals or the vocational
expert’s testimony. (Doc. 19, generally). The undersigned will address each
contention of error in turn.

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A.

Eleventh Circuit’s Pain Standard

Pain is not amenable to objective measurement. See 20 C.F.R.§
416.928. As a result, the Eleventh Circuit in Holt v. Sullivan, 921 F.2d 1221
(11th Cir. 1991), articulated the “pain standard,” which applies when a
disability claimant attempts to establish a disability through his own
testimony of pain or other subjective symptoms. The pain standard requires:
(1) evidence of an underlying medical condition and either (2) objective
medical evidence that confirms the severity of the alleged pain arising
from that condition or (3) that the objectively determined medical
condition is of such a severity that it can be reasonably expected to
give rise to the alleged pain.
Dyer v. Barnhart, 395 F.3d 1206, 1210-11 (11th Cir. 2005); see 42 U.S.C. §
423(d)(5)(A); 20 C.F.R. § 416.929. “A claimant’s subjective testimony
supported by medical evidence that satisfies the pain standard is itself
sufficient to support a finding of disability.” Holt, 921 F.2d at 1223. If a
claimant satisfies these criteria, an ALJ must explain the reasons for
discrediting the claimant’s allegations of subjectively disabling symptoms.
Dyer, 395 F.3d at 1210-11. “It is established in this circuit that if the [ALJ]
fails to articulate reasons for refusing to credit a claimant’s subjective pain
testimony, then the [ALJ], as a matter of law, has accepted that testimony as
true. Implicit in this rule is the requirement that such articulation of reasons
by the [ALJ] be supported by substantial evidence.” Hale v. Bowen, 831 F.2d
1007, 1012 (11th Cir. 1987).

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In assessing the credibility of an individual, the following factors
should be considered:
(1) the claimant’s daily activities; (2) the location, duration, frequency,
and intensity of pain or other symptoms; (3) precipitating and
aggravating factors; (4) type, dosage, effectiveness, and side effects of
any medications used to alleviate pain or other symptoms; (5)
treatment other than medication, received for relief of pain or other
symptoms; (6) any measures, other than treatment, used to relieve
pain or other symptoms; and (7) other factors concerning functional
limitations and restrictions due to pain or other symptoms.
20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3); see also SSR 96-7p.
Plaintiff asserts that the ALJ failed to take into consideration any of
the seven factors that an ALJ must consider in assessing the credibility of an
individual’s statements pursuant to 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3),
and SSR 96-7 and ignored multiple records which resulted in a determination
that is not supported by substantial evidence. (Doc. 18 at 2-3, 5). In support
of her position, Plaintiff states that the ALJ extensively focused on the
records of Dr. De La Torre who only treated Plaintiff’s keloids and that the
ALJ failed to cite multiple other records from Marion Clinic and Dr. Davis,
covering the same period of time that show Plaintiff’s complaints stemming
from her diabetes, hypertension, depression, low back pain, and severe
debilitating pain from the keloids. (Doc. 18 at 3). Namely, Plaintiff contends
the ALJ completely ignored the following notations in Plaintiff’s medical
records:
(1) Marion Clinic Records (Tr. 691-693) - “She has been on numerous
medications related to pain associated with the keloid scarring. She
has had injections for the pain. She has had anti-inflammatory

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medications, Tylenol with Codeine and Lortab and fentanyl patches,
none of which seemed to help keep her pain away. She is requesting
pain management physician and I am surprised that [the] UAB
physicians have not referred her that direction but apparently they
have not.” It was also noted Plaintiff was anxious, crying worried about
constantly being in pain and stated “patient is experiencing significant
left arm pain in association with her keloids.”
(2)
Marion Clinic Records (Tr. 673) - “This patient has bilateral
large keloids on each upper arm region so perhaps the wrist cuff is best
for because the keloids are incredibly painful for this patient.”
(3)
Cahaba Center for Mental Health and Mental Retardation
Records (Tr. 291-310) - Notes indicating Plaintiff had previously been
diagnosed on multiple occasions with dysthymic disorder due to
chronic pain.
(4)
UAB Medicine Records (Tr. 774) - Note indicating the following:
severity of pain 10; described as constant and stabbing.
(5)
Dr. McKeown Records (Tr. 765, 772) – Records showing that the
medications Dr. McKeown prescribed to Plaintiff were not relieving her
pain, so Dr. McKeown instructed her to discontinue them. The notes
also detail an “extensive discussion with patient regarding the limited
options we have to offer at this time while encouraging her to follow up
with her [primary care physician] to see if he might be aware of any
other pain physicians or plastic surgeons who may have interventions
to provide relief” and that the pain management physician requested a
TENS unit, and did not give refills on any medication because “the
patient assured us that she had adequate medication.” 3
(Doc. 18 at 3-5). Plaintiff also contends that both her protruding disc causing
right sided radiculopathy and chronic keloids should satisfy this Circuit’s
pain standard.

(Id. at 5).

Defendant contends that the ALJ properly

Plaintiff also asserts that this note contradicts the ALJ’s reliance on Plaintiff’s refusal of
pain medications. However, as discussed herein below, there were multiple notations of
Plaintiff’s refusal of medication/treatment and it is evident that the ALJ’s decision was not
based solely on his alleged misinterpretation of this one visit.

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assessed Plaintiff’s credibility and, as he articulated, his assessment was
based on substantial evidence. (Doc. 19 at 5-8.)
After extensively summarizing Plaintiff’s testimony and medical
records (Tr. at 21-25), the ALJ stated as follows:
After careful consideration of the evidence, the undersigned finds that
the claimant’s medically determinable impairments could reasonably
be expected to cause some of 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. Essentially, in many aspects, these
are the same allegations denied by an administrative law judge in
2012. This is a younger individual who is obese and who has keloids;
some have been excised/removed, but there are no signs of chronic
infections related to the excisions. She testified she has Medicaid, so
she has had access to medical care. Records do not document serious
crises/complications relating to hypertension or diabetes. She is obese
but has no advanced joint disease. There are back pain complaints but
2012 MRI showed only broad based protrusion at L4-5; neurosurgery
records report she retains normal lower extremity strength and
sensations with normal gait with retained ability to heel & toe walk.
There is only mild dis disease per x-ray (Ex B1F pg 5). Right leg x-rays
were normal in April 2014 per Ex B12F pg 43. Primary care records
indicate there is some pain in the upper part of the body because of the
keloid scarring, and the undersigned has assigned some restrictions to
account for that non-debilitating pain. In fact, the undersigned has
assigned some substantial exertional, postural, and environmental
limitations to account for some keloid-related pain and her medication
regimen; however, the record does not clearly demonstrate that the
medication regimen is causing chronic substantial side effects that
can reasonably be considered debilitating. Most notable, she has
nearly SGA-level income for 2012 & 2013; that seriously undercuts her
debilitating pain complaints. Also, she is raising underage children in
her home. Records describe conservatively treated depression with
varying diagnoses related to it. No psychosis is demonstrated per the
latest counselor updates. A nurse practitioner notes no signs of
depression or anxiety during checkup this summer.
To assess the claimant’s credibility, as directed by the Regulations, the
undersigned has considered all of the available evidence, including
testimony at the hearing and third party statements, and in light of

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this, the claimant is found to be less than credible. For, example, at
the hearing, when questioned about the work performed after her
alleged onset date, she testified that she did not perform the work for
which she was paid. The undersigned finds this to be suspect at best.
As a self-employed individual, it is highly unlikely that individuals
would continue to pay the claimant for work she did not perform.
Secondly, throughout the evidence, it is clear that the claimant elected
to stop taking her prescribed medications, which reflects that her
conditions were not as debilitation as alleged. Lastly, the claimant
selected the date after her previous denials as her alleged onset date.
She offers no plausible explanations why she feels that as of this date
she was no longer able to work.
(Tr. at 25-26)(emphasis in original).

The ALJ then went on to describe the

discrepancies between Plaintiff’s alleged pain and her medical records in
relationship to her complained of impairments.

In so doing, the ALJ

explained that Plaintiff’s complaints were inconsistent with the medical
evidence of record relating to Plaintiff keloids, lumbar disc disease with
spondylosis/osteoarthritis and chronic pain syndrome, diabetes mellitus,
hypertension, dysthymic disorder vs. major depression, and obesity. (Id. at
26-27).
As an initial matter, it is clear that the ALJ extensively considered
Plaintiff’s medical records.

Additionally, the ALJ’s medical summary

includes multiple references to Marion Clinic and Dr. Davis and, therefore,
Plaintiff’s allegation that the ALJ failed to cite those records is not
compelling. The record also reflects that in determining the credibility of
Plaintiff, the ALJ considered the seven factors utilized in the 11th Circuit, i.e.,

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Plaintiff’s activities of daily living4, her treatment, medication regimen, and
the side effects of her medication5, the location, duration, frequency, and
intensity of pain or other symptoms6; and measures other than treatment to
relieve pain 7 .

As a result, based on the record, it is evident that the

administrative law judge did not ignore Plaintiff’s testimony or the medical
evidence of Plaintiff’s pain.

Rather, the ALJ determined that intensity,

persistence and limiting effects of the pain she alleged was not credible when
considered in the light of all the evidence.

  Moreover, the ALJ articulated the
reasons for his determination that Plaintiff was not entirely credible.
Despite Plaintiff’s contention that the ALJ ignored the seven factors he
is required to consider when determining credibility, the ALJ’s articulated
reasoning addresses those very factors. Lastly, while Plaintiff points to
multiple records which indicate that Plaintiff complained of or suffered from
pain, there remains substantial evidence on which the ALJ relied in reaching

See (Tr. at 22) (“by her own admission her condition did not interfere with her daily
routine”); (Tr. at 25)(“she is raising underage children in her home”); (“she has nearly SGAlevel income for 2012 & 2013”).

5 See (Tr. at 22) (“she admitted she stopped taking her medication”), (“on at least two
separate visits, when she reported increased pain, she refused the recommended treatment”);
(Tr. at 23) (“she had since stopped taking any narcotic pain medication”), (“she admitted her
that prescribed treatment afforded her significant relief with [sic] any sign or complaints of
side effects from medication”), (“despite being offered a neurological consult, the claimant
denied”), (“she was repeatedly cautioned about remaining compliant with prescribed
treatment”).
6 See (Tr. at 22) (“her condition had improved, she rejected needing further treatment”), (“she
remained treatment free [from September 2012] until January 2013”), ( “she expressed
pleasure about her progress”); (Tr. at 23) (in “2012, she denied having any back, neck, joint or
muscle pain”), (in “2013, […] the claimant admitted her back pain was resolved”), (“her
complaints were treated conservatively”), (in “2012, examining physicians indicated the
claimant’s hypertension was resolved with treatment”).
7 See (Tr. at 24) (“he recommended a lifestyle change to improve her overall endocrine
systems”), (“again, he advised she modify her lifestyle to improve her symptoms”).
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his determination.

As a result, the undersigned finds Plaintiff’s first

contention of error to be without merit.
B.

Substantial Evidence

Plaintiff’s second point of error is based on the fact that several
portions of the transcript were either “inaudible” or incorrectly transcribed,
resulting in a decision that cannot be based on substantial evidence. (Doc. 18
at 5-6). Plaintiff asserts that because the entire record is not before this
Court, the Court cannot reach a decision as to whether the ALJ’s decision is
reasonable. (Id. at 6). In support of this assignment of error, Plaintiff points
to six specific instances of inaudible testimony and also asserts there were
“several other exchanges between the ALJ and the VE where portions of the
VE’s testimony were inaudible during key portions of his testimony”. (Id.)
Defendant acknowledges that the VE’s testimony contains inaudible portions,
but asserts that those inaudible portions did not diminish the record such
that it could not be determined whether substantial evidence existed to
support the ALJ’s decision. (Doc. 19 at 8-10).
When taken in a vacuum, the inaudible portions referred to by
Plaintiff appear to have an impact on the record. However, after reviewing
the VE’s testimony as a whole, the inaudible portions do not call into question
whether substantial evidence exists because either (1) the inaudible portions
do not cause confusion as to the testimony being provided or (2) because those
portions are not pertinent to the VE’s testimony and/or the ALJ’s decision.

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The first four inaudible portions cited to by Plaintiff relate to questions
regarding Plaintiff’s previous work and despite the inaudible portions, the
content of the testimony is apparent. More specifically, the first inaudible
portion is pulled from within the ALJ’s explanation that there was a VE
present at the hearing before the VE was sworn in and is not part of the VE’s
testimony. The next three portions all relate to the VE’s testimony as to
Plaintiff’s previous jobs. While there are inaudible portions, the undersigns
finds that those portions do not overcome the testimony as a whole. Further,
to the extent that there was confusion, the ALJ summarized this part of the
ALJ’s testimony in his decision at step five as follows:
The vocational expert classified the claimant’s past work as hand
packer […] which was medium unskilled work per the DOT but
performed at light; self-employed day worker (DOT # 301.687-014)
which was medium unskilled per DOT but light as performed; and selfemployed hair cosmetologist (DOT # 332.271-010) which was light
skilled with an SVP of 6 per DOT and SVP of 4 as performed. The
expert testified that claimant could do the past work as a hand packer
and a day worker as performed.
(Tr. at 27).

The fifth inaudible portion of the transcript referred to by

Plaintiff, while relating to Plaintiff’s hypothetical RFC, is much lengthier
than the excerpt cited by Plaintiff. (Doc. 18 at 5)(“I don’t see the keloids
[INAUDIBLE] but that’s going to be something she’s redoing.”). The full
testimony states as follows:
ALJ: Let’s turn to a discussion of the possible capacity findings. We
have a younger individual with an 11th grade education. She has
unskilled up to skilled work, if you use the DOT, using an SVP of 4 as
a production based on your experience and your testimony about

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cosmetology. Let’s take her vocational profile and look at light work
first. Actually, there is restaurant work, and there’s got to be some
reduction. It’s because of keloids, because of her issues with her
weight, some of the back problems. That’s going to take it to light, as
opposed to medium, heavy, but at light, let’s start, first with just
occasional pushing and pulling with upper extremities. Rather than
pushing and puling with the upper extremities, there would still be
reaching abilities in a frequent range, so frequent reaching, but only
occasionally overhead, so occasional overhead reaching, otherwise
frequent reaching. Occasional pushing and pulling with the upper
extremities, so there’s those three things. Posturally, I want you to
consider someone not able to climb ladders, ropes, or scaffolds. Part of
that is a safety precaution. Some of that is really more tied to her
actual physical limitation. I would also exclude the crawling. I don’t
see the keloids [INAUDIBLE] but that’s going to be something she’s
redoing. Let’s look at occasionally climbing ramps and stairs and
occasional balancing. I also want you to consider someone needing to
avoid concentrated exposure to extreme temperatures and all exposure
to dangerous machinery and unprotected heights. Ms. Goree is
primarily focused on physical symptoms, but she did talk about some
nervousness. There’s been some occasion of depression. She has been
mental health clinic care at time, so I was thinking about one of the
doctors from the state agency, Dr. Oestreich [phonetic] talked about
simple work, so let me ask you, in addition to the range of light work
I’m talking about in terms of physical, mentally, I want you to consider
someone who going to simple, routine, competitive tasks where
attention and concentration would be maintained for two-hour
increments during the workday, and let’s look at casual contact with
the public. One of the things that the doctor said was that the
claimant will encounter social restriction mainly when interacting with
the general public. It’s not exactly detailed and descriptive, so I’m
going to ask you to consider casual contact with the public, which
would give you something with more specificity. All right. So there’s a
lot for you to consider, but let’s go over that. Branch of light work
physically, with mentally and simple and routine tasks and casual
contact with the public. What about hand packer, day worker, and
cosmetologist?
A: {INAUDIBLE] day worker and hand packager, as she performed
them, not as generally performed [INAUDIBLE] cosmetology work.
(Tr. at 59-61). Plaintiff may be correct that “it is impossible to know based on
that statement alone [the one sentence including with the inaudible portion]

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what weight he [the ALJ] gave in his RFC to the keloids in the hypothetical
posed to the VE.” (Doc. 18 at 5).

However, it is clear that the ALJ’s

hypothetical and/or RFC were not based on that statement alone. Rather,
the record reflects that the ALJ first diminished Plaintiff’s abilities to light
work “because of keloids, because of her issues with her weight, some of the
back problems” and the provided other extensive limitations for the VE to
consider. As a result, based on the entirety of transcribed hearing, including,
the question and response above, Plaintiff’s assertion that the “inaudible”
portions rendered the record incomplete is not compelling.

Further, as

discussed above, the ALJ also summarized the VE’s testimony as to
Plaintiff’s ability to perform her previous work such that there is no gap in
the record. (See Tr. at 27)(“The expert testified that claimant could do the
past work as a hand packer and a day worker as performed.”). As a result,
the undersigned finds Plaintiff’s second contention of error to be without
merit.
C.

The Hypothetical Posed to the Vocational Expert

Plaintiff’s third assignment of error is that the ALJ’s hypothetical to
the VE did not take into account all of Plaintiff’s limitations. (Doc. 18 at 6-7).
In reality, Plaintiff does not assert that the ALJ failed to include his RFC
finding in the hypothetical posed to the VE but, rather, asserts that the RFC
did not include all of Plaintiff’s impairments and, therefore, the hypothetical
posed did not include all of Plaintiff’s impairments.

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More specifically,

Plaintiff asserts that the ALJ failed to include a portion of the opinion of Dr.
Estock, who was accorded considerable weight by the ALJ, wherein Dr.
Estock opined that Plaintiff “can adapt to occasional changes of routine for
simple situations not calling for rapid or extensive changes in work tasks or
procedures”, which was not referenced in the RFC or hypothetical posed to
the VE. (Id. at 7). Plaintiff further takes issue with the fact that there is no
“sit/stand option” in the RFC even though the ALJ found Plaintiff’s lumbar
disc disease with spondylosis/osteoarthritis to be a severe impairment and
asserts that the RFC is not sufficiently limiting because it failed to address
Plaintiff’s alleged severe pain.

Defendant argues that the impairments

allegedly omitted were not were not supported by the medical evidence of
record and, therefore, the omission of those impairments in the RFC and the
hypothetical posed to the VE was not error. (Doc. 19 at 10-11).
“The RFC assessment is a function-by-function assessment based upon
all of the relevant evidence of an individual’s ability to do work-related
activities.”

Social Security Ruling 96-8p, Titles II and XVI:

Assessing

Residual Functional Capacity in Initial Claims, 1996 WL 374184, *3. The
Court notes that the ALJ is responsible for determining a claimant’s RFC. 20
C.F.R. § 416.946 (2015). That decision cannot be based on “sit and squirm”
jurisprudence.

Wilson v. Heckler, 734 F.2d 513, 518 (11th Cir. 1984).

However, the Court also notes that the social security regulations state that

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Plaintiff is responsible for providing evidence from which the ALJ can make
an RFC determination. 20 C.F.R. § 416.945(a)(3).
Plaintiff’s assertions are not compelling. First, Dr. Estock’s opinion
was not given controlling weight due to his lack of treating relationship. (Tr.
at 27). Next, the record reflects that the ALJ in determining Plaintiff’s RFC,
considered not just Dr. Estock’s opinion, but also Plaintiff’s testimony and the
objective medical record as a whole. (Tr. at 20). Lastly, the ALJ articulated
that Dr. Estock’s assessment of mild to moderate mental health problems
were consistent with Plaintiff’s near SGA-level work income for two years,
conservative mental health care, and lack of inpatient care (Tr. at 27; See
also FN4) and Plaintiff has not pointed to any other evidence to support that
she has additional mental limitations to negate the ALJ’s RFC. Additionally,
with regard to Plaintiff’s sit/stand option, there is no medical evidence that
Plaintiff could not sit/stand, other than her own subjective testimony which,
as discussed herein above, the ALJ properly found to be less than credible.
The same holds true for Plaintiff’s subjective complaints of pain from keloids.
As a result, the undersigned finds that the record as a whole contains
substantial evidence on with the ALJ relied in determining Plaintiff’s RFC.
Accordingly, despite Plaintiff’s assertion that the RFC should have been more
restricting, the undersigned does not find that the ALJ’s RFC determination
was in error.

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The hypothetical posed to the VE was, likewise, not erroneous.

For a

vocational expert's testimony on the availability of jobs to constitute
substantial evidence, “the ALJ must pose a hypothetical that adequately
describes all the claimant's impairments and accurately reflects the
claimant's educational level, age, work skills, and experience.” Lanier v.
Commissioner of Social Security, 252 Fed. Appx. 311, 314-15 (11th Cir.
2007)(citing Jones v. Apfel, 190 F.3d 1224, 1229 (11th Cir. 1999)); see also
Dial, supra, 403 Fed.Appx. at 421 (where 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.”).. However, the hypothetical question “need only include
limitations supported by the record” and a claimant's “additional claimed
impairments that [are] not supported by objective medical evidence” need not
be included in the hypothetical. Lanier, 252 Fed. Appx. at 315.
In Plaintiff’s case, the mental impairment supported by the objective
medical evidence as stated in the RFC was as follows:
[…]Mentally, she can perform simple, routine, and repetitive tasks.
She can maintain attention and concentration to perform such tasks
for two-hour increments throughout the workday. She can have casual
contact with the general public throughout the workday.
(Tr. at 20). The hypothetical posed to the VE (typed above in full) included
mental restrictions based on “someone who going to simple, routine,
competitive tasks where attention and concentration would be maintained for
two-hour increments during the workday, and let’s look at casual contact

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with the public.”

(Tr. at 60-61).

The ALJ was not required to pose

hypotheticals to the VE with impairments that were not supported by the
record. See Lanier, 252 Fed. Appx. at 315. As a result, the ALJ did not
commit error by way of excluding Plaintiff’s additional complained of
impairments.
CONCLUSION
Plaintiff has raised three claims in bringing this action and all three
are without merit. Upon consideration of the entire record, the Court finds
"such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion."

Richardson v. Perales, 402 U.S. 389, 401 (1971).

Therefore, it is ORDERED that the Secretary's decision be AFFIRMED, see
Fortenberry v. Harris, 612 F.2d 947, 950 (5th Cir. 1980), and that this action
be DISMMISSED. Judgment will be entered by separate Order.
DONE this 23rd day of August 2017.

/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE

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