May v. Commissioner of Social Security

Filing 26

OPINION AND ORDER affirming the decision of the Commissioner. The Clerk is directed to enter judgment accordingly, terminate any pending motions and deadlines, and close the case. Signed by Magistrate Judge Douglas N. Frazier on 9/15/2014. (brh)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JOSEPH MAY,
Plaintiff,
v.

Case No: 2:13-cv-323-FtM-DNF

COMMISIONER OF SOCIAL SECURITY,
Defendant.
OPINION AND ORDER
This cause is before the Court on Plaintiff’s Complaint (Doc. 1) filed on April 26, 2013.
Plaintiff, Joseph May seeks judicial review of the final decision of the Commissioner of the Social
Security Administration (“SSA”) denying his claim for a period of disability, disability insurance
benefits and supplemental security income.

The Commissioner filed the Transcript of the

proceedings (hereinafter referred to as “Tr.” followed by the appropriate page number), and the
parties filed legal memoranda in support of their positions. For the reasons set out herein, the
decision of the Commissioner is affirmed pursuant to §205(g) of the Social Security Act, 42
U.S.C. §405(g).
I. Social Security Act Eligibility, the ALJ Decision, and Standard of Review
A. Eligibility
The law defines disability as the inability to do any substantial gainful activity by reason
of any medically determinable physical or mental impairment which can be expected to result in
death or which has lasted or can be expected to last for a continuous period of not less than twelve
months. 42 U.S.C. §§ 416(i), 423(d)(1)(A), 1382(a)(3)(A); 20 C.F.R. §§ 404.1505, 416.905.
The impairment must be severe, making the claimant unable to do her previous work, or any other

substantial gainful activity which exists in the national economy. 42 U.S.C. §§ 423(d)(2),
1382(a)(3); 20 C.F.R. §§ 404.1505 - 404.1511, 416.905 - 416.911. Plaintiff bears the burden of
persuasion through step four, while at step five the burden shifts to the Commissioner. Bowen v.
Yuckert, 482 U.S. 137, 146, n.5 (1987).
B. Procedural History
On August 13, 2009, Plaintiff filed an application for Disability Insurance Benefits and
Supplemental Security Income asserting a disability onset date of January 1, 2009. (Tr. p. 123126, 130-132). Plaintiff’s application was denied initially and upon reconsideration. (Tr. p. 83-88,
93-97). A hearing was held before Administrative Law Frederick McGrath (“ALJ) on July 28,
2011. (Tr. p. 42-53).

The ALJ issued an unfavorable decision on September 14, 2011. (Tr. p.

25-36). On March 1, 2013, the Appeals Council denied Plaintiff’s request for review. (Tr. p. 16).

The Plaintiff filed a Complaint (Doc. 1) in the United States District Court on April 26, 2013.

This case is now ripe for review. The parties consented to proceed before a United States
Magistrate Judge for all proceedings. (Doc. 15).
In his Memorandum in Opposition (Doc. 24), Plaintiff stated the following: “For the sake
of brevity and economy, the statements of the testimony and of the documentary evidence as set
forth in the ALJ’s decision (T. 22-41) are accepted by the Plaintiff and incorporated, as if fully
presented herein, except as specifically alluded to, excepted, or expanded upon, below.” (Doc.
24, p. 3). Therefore, the Court will also accept the testimony and medical evidence as set forth in
the ALJ’s Opinion unless specifically set forth otherwise.

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C. Summary of the ALJ’s Decision
An ALJ must follow a five-step sequential evaluation process to determine if a claimant
has proven that he is disabled. Packer v. Comm’r of Soc. Sec., 542 F. App’x 189 (11th Cir. 2013)
(citing Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999)). An ALJ must determine whether
the claimant (1) is performing substantial gainful activity; (2) has a severe impairment; (3) has a
severe impairment that meets or equals an impairment specifically listed in 20 C.F.R. Part 404,
Subpart P, Appendix 1; (4) can perform his past relevant work; and (5) can perform other work of
the sort found in the national economy. Phillips v. Barnhart, 357 F.3d 1232, 1237-40 (11th Cir.
2004). The claimant has the burden of proof through step four and then the burden shifts to the
Commissioner at step five. Hines-Sharp v. Comm’r of Soc. Sec., 511 F. App’x 913, 915 n.2 (11th
Cir. 2013).
The ALJ determined that Plaintiff met the Social Security Act’s insured status
requirements through December 31, 2013. (Tr. p. 27). At step one of the sequential evaluation,
the ALJ found that Plaintiff had not engaged in substantial gainful activity since January 1, 2009,
the alleged onset date. (Tr. p. 27). At step two, the ALJ found that the Plaintiff suffered from
the following severe impairments: degenerative disc disease of the lumbar spine and
hypertension citing 20 C.F.R. § 404.1520(c) and 416.920(c). (Tr. p. 27). At step three, the ALJ
determined that Plaintiff did not have an impairment or combination of impairments that meets
or medically equals the severity of any of the listed impairments in 20 C.F.R. Part 404, Subpart
P, Appendix 1 (20 C.F.R. 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, and 416.926.

1 Unpublished opinions may be cited as persuasive on a particular point. The Court does
not rely on unpublished opinions as precedent. Citation to unpublished opinions on or after January
1, 2007 is expressly permitted under Rule 32.1, Fed. R. App. P. Unpublished opinions may be
cited as persuasive authority pursuant to the Eleventh Circuit Rules. 11th Cir. R. 36-2.

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(Tr. p. 29). At step 4, the ALJ determined that the Plaintiff has the residual functional capacity
(“RFC”) to perform light work except he can lift and/or carry 20 pounds occasionally and 10
pounds frequently; sit, stand and/or walk for about six hours in an 8-hour day; and can never
climb ladders, ropes and scaffolds or work around unprotected heights and dangerous machinery.
(Tr. p. 29). The ALJ determined that Plaintiff can return to his past relevant work as a jeweler,
and that this work does not require the performance of work-related activities precluded by
Plaintiff’s RFC. (Tr. p. 35). The ALJ concluded that Plaintiff is not under a disability as defined
in the Social Security Act, from January 1, 2009 through the date of the decision. (Tr. p. 36).
D. Standard of Review
The scope of this Court’s review is limited to determining whether the ALJ applied the
correct legal standard, McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir. 1988), and whether
the findings are supported by substantial evidence, Richardson v. Perales, 402 U.S. 389, 390
(1971). The Commissioner’s findings of fact are conclusive if supported by substantial evidence.
42 U.S.C. § 405(g). Substantial evidence is more than a scintilla; i.e., the evidence must do more
than merely create a suspicion of the existence of a fact, and must include such relevant evidence
as a reasonable person would accept as adequate to support the conclusion. Foote v. Chater, 67
F.3d 1553, 1560 (11th Cir. 1995), citing Walden v. Schweiker, 672 F.2d 835, 838 (11th Cir. 1982)
and Richardson, 402 U.S. at 401.
Where the Commissioner’s decision is supported by substantial evidence, the district court
will affirm, even if the reviewer would have reached a contrary result as finder of fact, and even if
the reviewer finds that the evidence preponderates against the Commissioner’s decision.
Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991); Barnes v. Sullivan, 932 F.2d 1356,
1358 (11th Cir. 1991). The district court must view the evidence as a whole, taking into account

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evidence favorable as well as unfavorable to the decision. Foote, 67 F.3d at 1560; accord, Lowery
v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (court must scrutinize the entire record to determine
reasonableness of factual findings).
II. Analysis
Plaintiff raises three issues on appeal. As stated by Plaintiff, they are: (1) whether the
ALJ’s decision mischaracterized the evidence, and therefore, provided a flawed credibility
analysis; (2) whether the ALJ’s decision failed to properly evaluate Plaintiff’s complaints and
testimony that his past job as a jeweler required a lot of bending and that he could not perform the
bending requirements of that job; (3) and, whether ALJ failed to consider all of the physical and
mental requirements of the Plaintiff’s past relevant work as a jeweler.
A. Whether the ALJ Mischaracterized of Evidence
Plaintiff asserts that the ALJ failed to include in his RFC that the Plaintiff had limitations
in his ability to stoop or bend, and in his ability to concentrate. Plaintiff asserts that the ALJ
stated he gave great weight to the opinion of Dr. Donald Graham, but Dr. Graham did not give
an opinion as to Plaintiff’s ability to perform work-related activities; and the ALJ gave great
weight to the State Agency opinions, yet some of the opinions determined that Plaintiff could
perform less than a full range of sedentary work, and one stated that Plaintiff could only stand or
walk at least 2 hours in an 8 hour day, and sit about 6 hours in an 8 hour day. Plaintiff argues that
the ALJ’s opinion was in conflict with some of the medical opinions of record. The
Commissioner asserts that substantial evidence supports that ALJ’s findings that Plaintiff could
perform a range of light work.
At the fourth step in the evaluation process, the ALJ is required to determine a claimant’s
RFC and based on that determination, decide whether the plaintiff is able to return to his or her

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previous work. McCruter v. Bowen, 791 F.2d 1544, 1547 (11th Cir. 1986). The determination
of a claimant’s RFC is within the authority of the ALJ and along with the claimant’s age
education, and work experience, the RFC is considered in determining whether the claimant can
work. Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997). The RFC is the most a plaintiff
is able to do despite her physical and mental limitations. 20 C.F.R. § 404.1545(a)(1). In
determining whether Plaintiff can return to her past relevant work, the ALJ must determine the
Plaintiff’s RFC using all of the relevant medical and other evidence in the record. Phillips v.
Barnhart, 357 F.3d 1232, 1238-39 (11th Cir. 2004), 20 C.F.R. §404.1520(e). Weighing the
opinions and findings of treating, examining, and non-examining physicians is an integral part
of the ALJ’s RFC determination at step four. See, Rosario v. Comm’r of Soc. Sec., 877 F.Supp.2d
1254, 1265 (M.D. Fla. 2012).
The ALJ determined that Plaintiff could perform light work except that he could lift
and/or carry 20 pounds occasionally and 10 pounds frequently; sit, stand and/or walk for about
six hours in an 8-hour day; and can never climb ladders, ropes and scaffolds or work around
unprotected heights and dangerous machinery. (Tr. p. 29). The ALJ noted an MRI taken in June
3, 2008, showing only mild degenerative disc disease at L3-L4 and L4-L5 whereas the MRI
taken in November 13, 2009 indicated a discrete bulge at L1-L2 level 2, and multilevel early disc
degeneration with no other findings of spinal or neural foramina stenosis. (Tr. p. 30). The ALJ
includes an MRI taken in May 2011 and relied on Donald Graham, D.O’s determination that
overall the findings were “unimpressive.”

1.

Dr. Graham

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The medical records summarized Plaintiff’s imaging studies which showed a “multilevel
degenerative discopathy/facet joint arthropathies of the thoracic and lumbar spine. Moderate to
severe secondary left foraminal stenosis at L3-L4, bilateral foraminal stenosis at L4-L5 with
impingement on the nerve root.” (Tr. p. 454). A neurosurgeon, Dr. Graham reviewed the May
2011 MRI on June 16, 2011, and determined, “[o]verall findings are unimpressive. Mild
degenerative changes noted. No evidence of what I would consider surgical disease.
Considering his progressive deterioration I would recommend Neurology eval. May need
Neurosurgery if indicated following above.” (Tr. p. 460, 454).
The Court agrees with Plaintiff that Dr. Graham did not give an opinion as to Plaintiff’s
ability to perform work related tasks. However, the ALJ is permitted to rely on Dr. Graham’s
conclusion that the May 2011 MRI showed overall “unimpressive” findings, and that Dr. Graham
considered there to be no evidence of surgical disease. Plaintiff has failed to show that Dr.
Graham’s conclusions were contradicted or not supported by evidence of record or that his opinion
was inconsistent with the medical records. Poellnitz v. Astrue, 349 F. App’x 500, 502 (11th Cir.
2009) (citing Moore v. Barnhart, 405 F.3d 1208, 1212 (11th Cir. 2005)). Therefore, the Court
determines that the ALJ did not err in relying on Dr. Graham’s opinions as to a diagnosis.
2.

State Agency

Plaintiff argues that the ALJ gave great weight to the State Agency opinions, yet some of
the opinions determined that Plaintiff could perform less than a full range of sedentary work, and
one stated that Plaintiff could only stand or walk less than 2 hours in an 8 hour day, and sit about
6 hours in an 8 hour day. The ALJ did accord great weight to the State Agency reviewing
physicians. The ALJ asserted that their opinions were generally consistent with the substantial
evidence in the record. Plaintiff argues that the ALJ’s RFC is not consistent with the State

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Disability Determination on November 13, 2009 which opined that Plaintiff could perform less
than a full range of sedentary work activity and could only occasionally climb, balance, stoop,
kneel, crouch and crawl. 2
The Physical Residual Functional Capacity Assessment dated November 13, 2009, was not
completed by a doctor. (Tr. p. 254-260). The medical consultant, Richard Whittier determined
Plaintiff could lift less than 10 pounds occasionally or frequently, could stand less than 2 hours in
an 8-hour day, was limited in lower extremities, could occasionally climb, balance, stoop, kneel,
crouch, and crawl, could never climb a ladder, rope or scaffold, and should avoid all exposure to
hazards such as machinery or heights. (Tr. p. 254-260). The medical consultant concluded that
Plaintiff had the ability to perform work at a less than sedentary level. (Tr. p. 258).
On December 14, 2009, Murari Bijpuria, M.D. a State Agency Physician completed a Case
Analysis which found the November 13, 2009 Determination not to be supported by substantial
evidence, and amended that finding. Dr. Bijpuria found that there was no documentation showing
Plaintiff had sought and received an evaluation and treatment for persistent pain, tenderness,
spasms, and limitations of the spine that lasted 12 consecutive months, and there was no
documentation that he was prescribed a cane, received supervised physical therapy, or pain
management. (Tr. p. 261). Dr. Bijpuria also determined that Plaintiff’s alleged limitations and
the restrictions in the Physical Residual Functional Capacity Assessment dated November 13,
2009, were not supported by objective clinical findings and treatment records. (Tr. p. 261). Dr.
Bijpuria disagreed with the Physical Residual Functional Capacity Assessment finding as to

2 Plaintiff argues that the December 30, 2009 State Disability determination also showed that Plaintiff was
able to perform less than sedentary work. In the Physical Residual Functional Capacity Assessment dated December
30, 2009, the medical consultants states “sedentary given to accommodate the clmt’s allegation of severe pain.” (Tr.
p. 269). This Assessment does not indicate that Plaintiff is able to perform less than sedentary work.

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exertional limitations and substituted his findings that Plaintiff can occasionally lift 10 pounds and
frequently lift slightly less than 10 pounds, and that the obligatory use of a cane for short distances
was not established by the medical record. (Tr. p. 262). Therefore, the Court will not rely on the
November 13, 2009 Physical Residual Functional Capacity Assessment because it was modified
by Dr. Bijpuria’s Case Analysis.
A second Physical Residual Functional Capacity Assessment was completed on December
30, 2009 by a medical consultant. (Tr. p. 264-271). The medical consultant, Richard Whittier
determined that Plaintiff could lift 10 pounds occasionally, less than 10 pounds frequently, stand
and/or walk at least 2 hours in an 8-hour day, sit about 6 hours in an 8-hour day, and was limited
in lower extremities, could climb, balance, stoop, kneel, crouch, crawl occasionally but never
climb a ladder, rope or scaffold, and should avoid even moderate exposure to hazards. (Tr. p. 265268). The medical consultant concluded that Plaintiff is able to perform sedentary work. (Tr. p.
269).
A third Physical Residual Functional Capacity Assessment was completed by Bettye
Stanley, D.O. on April 26, 2010. (Tr. p. 363-370). Dr. Stanley determined that Plaintiff could lift
20 pounds occasionally, 10 pounds frequently, stand and/or walk for 2 hours in an 8-hour day, sit
about 6 hours in an 8-hour day, occasionally climb, balance, stoop, kneel, crouch, and crawl but
never climb a ladder, rope or scaffold, and should avoid concentrated exposure to hazards. (Tr.
p. (Tr. p. 363-370). Dr. Stanley determined that the objective medical records did not fully
support Plaintiff’s severity of conditions and functional restrictions, and Plaintiff appeared to be
only partially credible. (Tr. p. 368). Dr. Stanley concluded that Plaintiff should be capable of
performing at a reduced level of this RFC. (Tr. p. 368).

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Plaintiff is relying partially on the Physical Residual Functional Capacity Assessment of
November 13, 2009 in claiming that the ALJ erred in giving great weight to the State Agency
Assessments. The November 13, 2009 Physical Residual Functional Capacity Assessment did
determine Plaintiff could perform less than a full range of sedentary work and only stand or walk
less than 2 hours in an 8 hour day, however, this Assessment was amended by Dr. Bijpuria’s
Case Analysis. Dr. Bijpuria determined that Plaintiff was not as limited as found in the
November 13, 2009 Assessment. The ALJ found that the State Agency assessments are
generally consistent with the substantial evidence in the record, and he gave them great weight.
The ALJ relied generally on the State Agency Assessments in his determination of Plaintiff’s
RFC, especially the April 26, 2010 Assessment. Even though the ALJ did not adopt all of the
limitations, he did adopt most of the limitations in the April 26, 2010 Assessment, and the Court
does not find that the ALJ erred in giving great weight to the State Agency Assessments, and the
Court finds that the RFC findings are generally consistent with the State Agency Assessments.
Plaintiff next argues that the ALJ erred because he failed to include in his RFC that
Plaintiff could only occasionally climb, balance, stoop, kneel, crouch and crawl, as was provided
in the December 30, 2009 State Disability Determination and the April 26, 2010 Assessment.
Light work is defined as:
(b) Light work. Light work involves lifting no more than 20 pounds at a time with
frequent lifting or carrying of objects weighing up to 10 pounds. Even though the
weight lifted may be very little, a job is in this category when it requires a good
deal of walking or standing, or when it involves sitting most of the time with
some pushing and pulling of arm or leg controls. To be considered capable of
performing a full or wide range of light work, you must have the ability to do
substantially all of these activities. If someone can do light work, we determine
that he or she can also do sedentary work, unless there are additional limiting
factors such as loss of fine dexterity or inability to sit for long periods of time.
20 C.F.R. 404.1567, 416.967.

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Pursuant to SSR 85-133, light work may require a person to stoop (which is bending the
body downward and forward by bending the spine at the waist) occasionally in order to lift
objects, however, if stooping kneeling or crawling are required more than occasionally then these
jobs would be classified a medium, heavy or very heavy jobs. SSR 85-013 (2b). Therefore, by
definition, light work includes only occasional stooping or bending, and even though the ALJ
failed to specifically mention that Plaintiff was limited to occasional climbing, balancing,
stooping, kneeling, crouching and crawling, these postural limitations are contained within the
definition of light work. Therefore, this omission was harmless.
The ALJ determined that Plaintiff could sit, stand and/or walk for about six hours in an 8hour day. Plaintiff argues that the State Agency Assessments limited Plaintiff to stand and/or
walk for 2 hours in an 8-hour work day, and therefore the ALJ’s Decision was inconsistent with
the State Agency Assessments and the ALJ erred in giving the State Agency Assessments great
weight. The State Agency Assessments separated the stand/walk option from the sit option.
The State Agency Assessments determined Plaintiff could stand/walk for at least 2 hours, and sit
for six hours. The ALJ determined that Plaintiff could sit, stand and/or walk for about 6 hours
in and 8-hour work day. The Court does not find that the ALJ erred by not separating the
stand/walk option and by combining the sit, stand and/or walk options into 6 hours.
Plaintiff mentions that the ALJ failed to include any limitation as to Plaintiff’s ability to
concentrate. Plaintiff failed to indicate where in the Administrative Record there was mention of

3 “Social Security Rulings are agency rulings published under the Commissioner’s authority and are
binding on all components of the Administration. [citation omitted]. Even though the rulings are not binding on us,
we should nonetheless accord the rulings great respect and deference . . .” Klawinski v. Comm’r of Soc. Sec., 391 F.
App’x 772, 775 (11th Cir. 2010).

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Plaintiff’s inability to concentrate. Therefore, the Court finds that the ALJ did not err in failing
to include any limitations as to Plaintiff’s ability to concentrate as to the first issue. 4
B. Issues as to Side Effects of Medication and Requirement of Bending
Plaintiff asserts that the ALJ erred in failing to consider Plaintiff’s complaints of the side
effects from his medications and difficulty with frequent bending. Plaintiff argues that the job of
a jeweler requires frequent bending and stooping and these activities cause Plaintiff a great deal of
pain. Plaintiff also argues that the side effects of his medication include difficulty concentrating
and loss of memory. Plaintiff claims that this case should be reversed and remanded for the ALJ
to address Plaintiff’s complaints of inability to perform the bending requirements of his past
relevant work and to address the side effects of his medication. The Commissioner responds that
the ALJ considered Plaintiff’s subjective complaints of pain while bending and the side effects
from the medications such as dizziness, loss of concentration, and loss of memory and found
Plaintiff’s testimony not to be entirely credible.
The Court notes that Plaintiff only cites to the testimony of Plaintiff as to the difficulties
with the bending requirement and the difficulties with concentration and loss of memory. At the
hearing, Plaintiff testified that when he returned to his job of jewelry repair, he claimed that the
job involved a lot of bending and stooping, and he could “hardly bend over without causing myself
a lot of pain. And the one thing about the job was polishing and you have to bend over to polish,
and I just couldn’t do it.” (Tr. p. 46-47). Plaintiff argues that the State Agency Assessments
showed that Plaintiff was limited to stooping occasionally.

4 In this case, the Court notes that even though the ALJ determined that Plaintiff could perform light work,
the ALJ also determined that Plaintiff could return to his past relevant work as a jeweler which is listed in the DOT
as sedentary work. Therefore, even if the ALJ failed to specifically include certain limitations in his Decision as
argued by Plaintiff, some of the exertional and postural limitations are included within the parameters of sedentary
work.

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As stated in the above section, pursuant to SSR 85-13, light work includes only occasional
stooping or bending. Further, the parties agree that the occupation of jeweler is considered
sedentary work. The ability to stoop occasionally is required in sedentary occupations and would
not erode the occupational base, however a complete inability to stoop would be considered to
erode the unskilled sedentary occupational base to the point of finding an individual disabled.
SSR 96-09p. Therefore, stooping occasionally is included within the definitions of light and
sedentary work. In the instant case, Plaintiff’s testimony states that he can “hardly bend over” yet,
Plaintiff failed to indicate any medical support for his total inability to bend. All of the State
Agency Assessments showed that Plaintiff was able to stoop occasionally. (Tr. p. 256, 266, 365).
Plaintiff failed to cite to any medical opinion which supports his subjective testimony that he is
“hardly” able to bend.
To establish disability based on testimony of pain and other symptoms, a plaintiff must
satisfy two prongs of the following three-part test: “(1) evidence of an underlying medical
condition; and (2) either (a) objective medical evidence confirming the severity of the alleged pain;
or (b) that the objectively determined medical condition can reasonably be expected to give rise to
the claimed pain.” Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002) (citing Holt v.
Sullivan, 921 F.3d 1221, 1223 (11th Cir. 1991)). After an ALJ has considered a plaintiff’s
complaints of pain, the ALJ may reject them as not credible, and that determination will be
reviewed to determine if it is based on substantial evidence. Moreno v. Astrue, 366 F. App’x 23,
28 (11th Cir. 2010) (citing Marbury v. Sullivan, 957 F.2d 837, 839 (11th Cir. 1992). If an ALJ
discredits the subjective testimony of a plaintiff, then he must “articulate explicit and adequate
reasons for doing so. [citations omitted] Failure to articulate the reasons for discrediting subjective
testimony requires, as a matter of law, that the testimony be accepted as true.” Wilson v. Barnhart,

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284 F.3d at 1225. “A clearly articulated credibility finding with substantial supporting evidence
in the record will not be disturbed by a reviewing court.” Foote v. Chater, 67 F.3d 1553, 1562
(11th Cir. 1995)).

The factors an ALJ must consider in evaluating a plaintiff’s subjective

symptoms are: “(1) the claimant's daily activities; (2) the nature and intensity of pain and other
symptoms; (3) precipitating and aggravating factors; (4) effects of medications; (5) treatment or
measures taken by the claimant for relief of symptoms; and other factors concerning functional
limitations.” Moreno v. Astrue, 366 F. App’x at 28 (citing 20 C.F.R. § 404.1529(c)(3)).
The ALJ summarized Plaintiff’s testimony that he was working at a jewelry repair job, and
that he continued to have pain while working based on the sitting, standing, bending and stooping
required. (Tr. p. 33). The ALJ noted that the job of polishing caused pain and Plaintiff testified he
was unable to do that part of the job. (Tr. p. 33). The ALJ considered Plaintiff’s testimony that
during the day, Plaintiff had to lie flat on the ground or floor and cannot sit or stand for more than
10 to 15 minutes. (Tr. p. 33). Plaintiff testified that he could not sit in a car for a long trip. (Tr.
p. 33). The ALJ noted that Plaintiff was provided with a cane, and that he had pain from his
varicose veins. (Tr. p. 33).
The ALJ determined that Plaintiff’s medically determinable impairments could reasonably
be expected to cause the alleged symptoms, however, Plaintiff’s statements concerning the
intensity, persistence and limiting effects of these symptoms are not credible to the extent that they
are inconsistent with the RFC. (Tr. p. 34).

The ALJ found that Plaintiff’s testimony was

inconsistent and contradictory and not supported by the medical evidence of record. (Tr. p. 34).
The ALJ cited to a February 2009 examination when Plaintiff said his back pain was on “holiday”
with medications and he walked without assistance. (Tr. p. 34). The ALJ cited to Plaintiff’s pain
being under good control with medication in September 2009, and that no surgery had been

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indicated for Plaintiff, only pain management. (Tr. p. 34). The ALJ noted that a physical therapist
recommended daily exercise in April 2010 for improvement and was doubtful he could improve
without it. (Tr. p. 34). In June 2011, the ALJ noted that the neurosurgeon determined the imaging
findings were “unimpressive” and “mild” and surgery was not considered. (Tr. p. 34). The ALJ
also noted that Plaintiff continued participating in a wide range of daily activities including
personal care, meal preparation, cleaning laundry, driving, shopping and attending church while
at the same time claiming inactivity due to pain and his impairments. (Tr. p. 34). The ALJ
concluded that Plaintiff’s objective medical evidence and daily activities do not support the
severity of Plaintiff’s impairments as claimed by Plaintiff.
The ALJ thoroughly reviewed the testimony and statements of Plaintiff as well as the
medical evidence of record.

The ALJ mentioned the limitations that Plaintiff claimed and

exhaustively reviewed the medical records of Plaintiff, and compared them to determine that
Plaintiff’s statements concerning the intensity, persistence and limiting effects of these symptoms
were not credible. The ALJ considered the medical records and activities of daily living, the
Plaintiff’s testimony and statements as to the nature and intensity of the pain, and the treatment,
and determined Plaintiff was not as limited as Plaintiff claimed. Therefore, the ALJ did not err in
making a determination as to Plaintiff’s credibility.
Plaintiff also argues that his medications cause him difficulty in concentrating and loss of
memory. Although unclear, it appears that Plaintiff also asserts that because Plaintiff has
concentration problems from his medications, his ability to reach and handle, and his finger
dexterity is affected. All of the State Agency Assessments have no limitations on Plaintiff’s ability
to reach, handle or finger. (Tr. p. 254, 267, 366). The ALJ notes that Plaintiff testified that the
side effects from the medications were dizziness, loss of concentration and memory. (Tr. p. 33).

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Plaintiff failed to cite to the medical record to support Plaintiff’s subjective complaints. Even
though Plaintiff does not cite to it, Plaintiff’s Psychiatric Review Technique dated July 8, 2010
included a mild degree of limitation in maintaining concentration, persistence, or pace, and the
ALJ noted this determination in his Decision. (Tr. p. 28, 388). Although an ALJ has the duty to
develop the record, a plaintiff has the burden to prove he is disabled and must introduce evidence
to support his claim that his symptoms, including any side effects of medication make him unable
to work. Walker v. Comm’r of Soc. Sec., 404 F. App’x 362, 366 (11th Cir. 2010). As stated above,
the ALJ considered Plaintiff’s subjective complaints, the medical evidence of record, and
Plaintiff’s activities of daily living. The ALJ determined that Plaintiff’s statements concerning
the intensity, persistence and limiting effects of these symptoms were not credible. The ALJ’s
determination was supported by substantial evidence, and the Court determines that the ALJ did
not err in his assessment of Plaintiff’s ability to stoop and bend, and the side effects of Plaintiff’s
medications and their effects on Plaintiff’s ability to return to his past relevant work.
C. Physical and Mental Requirements of Past Relevant Work
Plaintiff argues that the ALJ erred in failing to consider the duties and requirements of
Plaintiff’s past relevant work as a jeweler, specifically that it requires a high level of skill and
being in a bent sitting position for prolonged periods of time. Plaintiff is asking that the Court
take judicial notice that a jeweler typically performs the job bent over a desk or bench with a
magnifying glass or a jeweler’s loop working with small tools. The Commissioner asserts that
substantial evidence supports the ALJ’s conclusion that Plaintiff could perform his past relevant
work as a jeweler.
A plaintiff bears the burden of showing that she can no longer perform her past relevant
work as she actually performed it, or as it is performed in the general economy. Waldrop v.

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Comm’r of Soc. Sec., 379 F. App’x 948, 953 (11th Cir. 2010). (citing Jackson v. Bowen, 801 F.2d
1291, 1293-94 (11th Cir. 1986). Even though a plaintiff has the burden of showing she can no
longer perform her past relevant work, the Commissioner has the obligation to develop a full and
fair record. Schnorr v. Bowen, 816 F.2d 578, 581 (11th Cir. 1987) (citations omitted). To
develop a full and fair record, an ALJ must consider all of the duties of that past relevant work and
evaluate a plaintiff’s ability to perform the past relevant work in spite of the impairments. Levie
v. Comm’r of Soc. Sec., 514 F. App’x 829, 831 (11th Cir. 2013). SSR 82-62 requires the ALJ to
make the “following specific findings of fact: 1. A finding of fact as to the individual's RFC. 2. A
finding of fact as to the physical and mental demands of the past job/occupation. 3. A finding of
fact that the individual's RFC would permit a return to his or her past job or occupation.” SSR
82-62, 1982 WL 31386 *4 (1982). A plaintiff is the primary source for vocational documents, and
“statements by the claimant regarding past work are generally sufficient for determining the skill
level; exertional demands and nonexertional demands of such work.” Id. at *3.
The ALJ summarized Plaintiff’s testimony and statements as to his past relevant work as a
jeweler. (Tr. p. 35). The ALJ noted that he walked around, stood for one hour, and sat for seven
hours in a day. (Tr. p. 35). The ALJ reported that Plaintiff lifted and carried less than 10 pounds.
The ALJ cited to the Dictionary of Occupational Titles (D.O.T.) to describe the job of jewelry
repair as a sedentary skilled job, SVP 7 – DOT #700-281-010. (Tr. p. 35). The ALJ compared
Plaintiff’s RFC to the physical and mental demands of the job of jewelry repair and concluded that
Plaintiff was able to perform this job as actually and generally performed.
In this case, the ALJ complied with SSR 82-62 and made findings of fact as to the
Plaintiff’s RFC; findings of fact as to the physical and mental demands of the job of jewelry repair;
and, findings of fact that Plaintiff’s RFC would permit him to return to his past relevant work of

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jewelry repair. Plaintiff argues that the ALJ failed to consider Plaintiff’s inability to bend or stoop
and his limitations in concentration. However, the DOT #700.281.010 for jeweler does not
contain any stooping requirements. The Court must follow the requirements set forth in the DOT
absent evidence to the contrary, and Plaintiff has failed to provide any evidence that a jeweler or
jewelry repair person is required to bend or stoop as this job is performed generally. Further, as
determined above, Plaintiff has failed to show any support in the medical records for the
proposition that Plaintiff is unable to bend or stoop occasionally.
Plaintiff also asserts that he has mild a limitation in concentration and this limitation could
impact his ability to perform work as a jeweler. Plaintiff failed to cite any evidence in the record
or provide any support for this statement. The ALJ thoroughly reviewed Plaintiff’s medical
records, and considered the duties of Plaintiff’s past relevant work. The ALJ did not find
Plaintiff’s statements concerning the intensity, persistence and limiting effects of his symptoms to
be credible. Although Plaintiff mentioned at the hearing that he has dizziness, problems with
concentration, and loss of memory, Plaintiff failed to cite to any medical records where he
mentioned these symptoms to his doctors, nor did he indicate how these symptoms affected his
daily living activities or his ability to perform his past relevant work. Plaintiff did not indicate
that he stopped working as a jeweler due to the side effects of his medication. When asked at the
hearing why he can no longer worked in jewelry repair, Plaintiff mentioned his difficulties in
bending but did not mention any difficulties with concentration or memory loss. (Tr. p. 46-47).
The Court determines that the ALJ did not err in determining that Plaintiff can return to his past
relevant work as a jeweler.
III. Conclusion
Upon consideration of the submissions of the parties and the administrative record, the

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Court finds that the decision of the Commissioner is supported by substantial evidence and decided
according to proper legal standards.
IT IS HEREBY ORDERED:
The decision of the Commissioner is AFFIRMED pursuant to sentence four of 42 U.S.C.
§405(g). The Clerk is directed to enter judgment accordingly, terminate any pending motions and
deadlines, and close the case.

DONE and ORDERED in Fort Myers, Florida on September 15, 2014.

Copies furnished to:
Counsel of Record
Unrepresented Parties

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