Corelli v. Commissioner of Social Security

Filing 23

OPINION AND ORDER re: 1 Complaint. The decision of the Commissioner is AFFIRMED. The Clerk of Court is directed to enter judgment pursuant to sentence four of 42 U.S.C. § 405(g) in favor of the Commissioner. The Clerk is further directed to close the file. Signed by Magistrate Judge Carol Mirando on 3/13/2015. (BLW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JAMES CORELLI,
Plaintiff,
v.

Case No: 2:14-cv-24-FtM-CM

CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.
OPINION AND ORDER
Plaintiff, James Corelli, appeals the final decision of the Commissioner of
Social Security Administration (“Commissioner”) denying his claim for disability,
disability insurance benefits (“DIB”), and Supplemental Security Income (“SSI”). As
the decision of the Administrative Law Judge (“ALJ”) was based on substantial
evidence and employed proper legal standards, the Commissioner’s decision is
affirmed.
I.

Issues on Appeal

Plaintiff argues three issues on appeal: (1) whether the ALJ properly evaluated
the severity of Plaintiff’s alleged mental impairments of adjustment and panic
disorders; (2) whether the ALJ improperly discounted Plaintiff’s treating
psychiatrist; and (3) whether the ALJ properly considered limitations caused by
Plaintiff’s use of a cane when determining his residual functional capacity (“RFC”)
for light work. Plaintiff asserts this his use of a cane precludes him from being able
to perform light or even sedentary work.

II.

Procedural History and Summary of the ALJ’s Decision

Plaintiff filed an application for disability and DIB on April 22, 2010, alleging
he became disabled and unable to work on December 1, 2005, due to bulging
herniated cervical/lumbar discs caused by a car accident.

Tr. 96-105, 123.

The

Social Security Administration (“SSA”) denied his claim initially and upon
reconsideration. Tr. 65-68. Plaintiff then requested and received a hearing before
an ALJ on June 8, 2012, during which he was represented by an attorney. Tr. 3156. Plaintiff and a vocational expert (“VE”) testified at the hearing.
On September 7, 2012, the ALJ issued a decision, finding Plaintiff not disabled
and denying his claim. Tr. 13-23. At step one, the ALJ found Plaintiff had not
engaged in substantial gainful activity since December 1, 2005, the alleged onset
date.

Tr. 15.

At step two, the ALJ determined that Plaintiff had the following

severe impairments: degenerative disc disease of the cervical and lumbar spine and
chronic pain. Id. At step three, the ALJ concluded that Plaintiff did “not have an
impairment or combination of impairments that meets or medically equals the
severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix
1.” 1

Tr. 19.

In making these findings, the ALJ considered the “paragraph B”

criteria, and found that the criteria were not satisfied. Id.

Appendix 1 is the listing of impairments (“Listing”) that “describes for each of the
major body systems impairments that we consider to be severe enough to prevent an
individual from doing any gainful activity, regardless of his or her age, education, or work
experience.” 20 C.F.R. § 405.1525(a).
1

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Taking into account the effects from all of Plaintiff’s symptoms and considering
the opinion evidence, the ALJ then determined that Plaintiff had the RFC to perform
light work, as defined in 20 C.F.R. § 416.967(b), 2 and that he may occasionally
require the use of a cane. Tr. 19. The ALJ also found that Plaintiff’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 credible to the extent they are
inconsistent with the above residual functional capacity assessment.” Tr. 21. In
making this finding, the ALJ considered Plaintiff’s allegations of chronic pain and
back problems. Tr. 20-22. The ALJ determined that Plaintiff was able to perform
his past relevant work as a restaurant manager. Tr. 22. Taking into consideration
his RFC determination, and supported by the VE’s testimony, the ALJ found that the
work does not require the performance of work-related activities precluded by
Plaintiff’s RFC.

Id.

In doing so, the ALJ noted that the VE testified that the

occasional use of a cane is not a problem for the restaurant manager position. Id.
Following the ALJ’s decision, Plaintiff filed a Request for Review by the
Appeals Council. After considering the ALJ’s decision, the Appeals Counsel denied

2

The regulations define “light work” as follows:

(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. . . .
20 C.F.R. § 404.1567(b).

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the request on November 22, 2013. Tr. 1-4. Accordingly, the ALJ’s September 7,
2012 decision is the final decision of the Commissioner.

On January 13, 2014,

Plaintiff timely filed his Complaint with this Court under 42 U.S.C. §§ 405(g),
1383(c)(3). Doc. 1.
III.

Social Security Act Eligibility and Standard of Review

A claimant is entitled to disability benefits when he is unable to engage in any
substantial gainful activity by reason of any medically determinable physical or
mental impairment that can be expected to either result in death or last for a
continuous period of not less than twelve months.

42 U.S.C. §§ 416(i)(1),

423(d)(1)(A); 20 C.F.R. § 404.1505(a). The Commissioner has established a five-step
sequential analysis for evaluating a claim of disability. See 20 C.F.R. § 404.1520.
The claimant bears the burden of persuasion through step four, and, at step five, the
burden shifts to the Commissioner. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987).
The scope of this Court’s review is limited to determining whether the ALJ
applied the correct legal standards and whether the findings are supported by
substantial evidence. McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir. 1988)
(citing 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., evidence that must do
more than create a suspicion of the existence of the fact to be established, and 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) (citations omitted);

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see also Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005) (finding that
“[s]ubstantial evidence is something more than a mere scintilla, but less than a
preponderance”) (internal citation omitted).
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 preponderance of the evidence
is 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 record as a whole, taking into account evidence favorable
as well as unfavorable to the decision.” Foote, 67 F.3d at 1560; see also Lowery v.

Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (stating that the court must scrutinize
the entire record to determine the reasonableness of the factual findings).
IV.

Discussion

A.

Mental Impairments

Plaintiff first argues on appeal that the ALJ erred in his determination that
Plaintiff’s mental impairments of adjustment and panic disorders were non-severe.
Tr. 18. Plaintiff asserts that these disorders are well documented in the record.
Specifically, Plaintiff states that he was diagnosed with anxiety and depression. Tr.
214-28; 239-51; 276-79. Further, a psychological evaluation prepared by David B.
Rawlings, Ph.D., diagnosed adjustment disorder with anxious mood and chronic and
probable panic disorder. Tr. 354. Plaintiff also points to the records of his treating
psychiatrist, Jeffrey Fabacher, M.D., which include diagnoses of panic and

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generalized anxiety disorder. Tr. 539-42. Dr. Fabacher completed a Questionnaire
as to Mental Residual Functional Capacity Assessment (“Questionnaire”), wherein
he opined that Plaintiff had marked limitations in his ability to complete work tasks
in a normal day and perform at adequate production levels.

Tr. 385-88.

Dr.

Fabacher noted that Plaintiff’s condition was likely to deteriorate if he is placed under
the stress of a job. Tr. 388. Defendant acknowledges that Plaintiff was diagnosed
with adjustment and panic disorders (Tr. 354), but argues the mere diagnosis of a
condition does not establish that Plaintiff’s mental condition would interfere with his
ability to perform basic work activities. Defendant further argues, as the ALJ found,
that Plaintiff’s medical records do not include objective medical findings or other
evidence establishing that his mental condition would have affected his ability to
work. The Court agrees with the Commissioner.
At the second step in the sequential evaluation process, the ALJ determines
whether the claimant has a severe impairment.

20 C.F.R. § 404.1520(a)(4)(ii).

Plaintiff bears the burden of establishing that his impairments are severe. Bowen,
482 U.S. at 146 n.5.

A severe impairment is an impairment or combination of

impairments that significantly limits a claimant’s physical or mental ability to do
basic work activities. 20 C.F.R. § 404.1520(c). “A non-severe impairment is a slight
abnormality which has such a minimal effect on the individual that it could not be
expected to interfere with the individual’s ability to work, irrespective of age,
education, or work experience.”

Brady v. Heckler, 724 F.2d 914, 920 (11th Cir.

1984). “The ALJ must consider every impairment alleged.” Gibson v. Heckler, 779

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F.2d 619, 623 (11th Cir. 1986). When determining a claimant’s RFC, the ALJ “must
consider all allegations of physical and mental limitations or restrictions,” not just
those determined to be severe. 20 C.F.R. § 404.1545(a)(2); SSR 96-8p. The ALJ is
required to consider the combined effects of a claimant’s alleged impairments and
make specific, well-articulated findings as to the effect of the impairments and
whether they result in disability. Walker v. Bowen, 826 F.2d 996, 1001 (11th Cir.
1987).
Here, at step two, after determining that Plaintiff had severe impairments of
degenerative disc disease of the cervical and lumbar spine and chronic pain, the ALJ
stated: “The claimant’s medically determinable mental impairment of adjustment
disorder/panic disorder does not cause more than minimal limitation in the claimant’s
ability to perform basic mental work activities and is therefore nonsevere.” Tr. 18.
In so finding, the ALJ followed the special technique or paragraph B criteria, wherein
he rated the degree of functional limitation resulting from Plaintiff’s alleged mental
impairments and found that the criteria were not satisfied. Tr. 19.
Contrary to Plaintiff’s assertions, the ALJ thoroughly considered Plaintiff’s
mental impairments in his analysis of whether they qualified as severe impairments
by examining both the medical records and opinion evidence. The ALJ noted that
Plaintiff was evaluated by David B. Rawlings, Ph.D, in October 2010. Tr. 16-17, 35155.

During the evaluation, Plaintiff denied feeling apathy, guilt, remorse,

diminished energy levels, or hopelessness.

Tr. 16, 353.

In addition, the Beck

Depression Inventory was within the normal limits and the Beck Anxiety Inventory

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suggested only mild levels of anxiety. Tr. 16-17, 354. Despite these requests, Dr.
Rawlings diagnosed Plaintiff with Adjustment Disorder with Anxious Mood and
Probably Panic Disorder.

Tr. 17, 354.

Yet, a diagnosis does not automatically

establish that a mental condition interferes with a plaintiff’s ability to perform basic
work activities. The Court must examine the extent to which the impairments limit
Plaintiff’s ability to work, which is Plaintiff’s burden to show.

See Moore v.

Barnhart, 405 F.3d 1208, 1213 n.6 (11th Cir. 2011).
As discussed by the ALJ, Plaintiff did not receive regular mental health
treatment, undermining his allegations of disabling mental limitations.

Tr. 18.

See 20 C.F.R. §§ 404.1527(c)(4), 404.1529(c)(3)(v), 416.927(c)(4), 416.929(c)(3)(v);
Manzo v. Comm’r of Soc. Sec., 408 F. App’x 265, 269 (11th Cir. 2011) (noting fact that
claimant had never been referred for mental health treatment supported ALJ’s
finding that claimant’s anxiety was not severe). The ALJ also noted that Maxine
Ruddock, Ph.D., a state agency psychological consultant, reviewed the evidence in
January 2011 and opined Plaintiff did not have a severe mental impairment. Tr. 18,
370. State agency consultants are highly qualified specialists who also are experts
in the Social Security disability programs, and their opinions may be entitled to great
weight if the evidence supports their opinions. See 20 C.F.R. §§ 404.1527(e)(2)(i),
416.927(e)(2)(i); SSR 96-6p. The Court finds that it was proper for the ALJ to give
Dr. Ruddock’s opinion significant weight, as it was consistent with the rest of the
record. Tr. 18. Plaintiff also denied any psychiatric symptoms to Eshan Kibria,
M.D., a consultative examiner, in February 2011. Tr. 17, 371.

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In addition, as noted by the ALJ, Plaintiff’s activities support a finding that he
does not have a severe mental impairment.

Tr. 18.

Plaintiff’s father indicated

Plaintiff reads, watches television, takes care of his own personal care, makes
sandwiches and frozen dinners, helps with house and yard work when he can, drives,
grocery shops, and occasionally participates in social activities.

Tr. 18, 134-38.

Plaintiff also indicated he stops by friends’ houses for visits, friends stop by his house
on a daily basis, and he talks on the phone. Tr. 142, 146. Plaintiff also noted he
could follow written and spoken instructions fairly well and he could get along with
authority figures very well.

Tr. 147-48.

Although not dispositive, a claimant’s

activities may show that the claimant’s pain and other symptoms are not as limiting
as he alleged. See 20 C.F.R. §§ 404.1529(c)(3)(i), 416.929(c)(3)(i); SSR 96-7p; Macia

v. Bowen, 829 F.2d 1009, 1012 (11th Cir. 1987).
Thus, the Court finds that the ALJ’s decision that Plaintiff’s panic and
adjustment disorders were non-severe is supported by substantial evidence in the
record. Although the record reveals diagnoses of adjustment and panic disorder (Tr.
354), there is no evidence in the record that demonstrates these conditions would
significantly limit Plaintiff’s ability to do basic work activities. Rather, the record
shows that Plaintiff’s doctors placed no restrictions on his activities or limitations
because of these conditions, nor that any treatment or therapy has been
recommended for these conditions, as noted by the ALJ.
Finally, although the ALJ found that Plaintiff’s mental conditions were nonsevere, the ALJ did find that Plaintiff suffered from severe impairments and

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continued through the sequential evaluation to step five. The Eleventh Circuit has
noted that the finding of any severe impairment is enough to satisfy step two,
“because once the ALJ proceeds beyond step two, he is required to consider the
claimant’s entire medical condition, including impairments the ALJ determined were
not severe.” Burgin v. Comm’r of Soc. Sec., 420 F. App’x 901, 902 (11th Cir. Mar. 30,
2011).

Thus, even assuming the ALJ erred when he concluded that Plaintiff’s

mental conditions were not severe impairments, that error was harmless, because
the ALJ considered all of his impairments, including those he deemed non-severe,
when determining Plaintiff’s RFC.

B.

Treating Psychiatrist

Plaintiff next argues on appeal that the ALJ failed to properly follow the
treating physician rule when he considered the opinion of his treating physician, Dr.
Fabacher, and improperly assigned his opinion little weight.

Tr. 18.

Plaintiff

asserts that it was error when the ALJ instead gave significant weight to the opinion
of non-treating, non-examining, State agency psychologist, Dr. Ruddock.

Dr.

Fabacher, completed a Questionnaire, wherein he opined that Plaintiff had marked
limitations in his ability to complete work tasks in a normal day and perform at
adequate production levels. Tr. 385-88. The ALJ assigned the opinion little weight
because it he found was not supported by the treatment records and was inconsistent
with the doctor’s own treatment notes, which showed that claimant’s symptoms are
well controlled with medication. Tr. 30, 539-42.

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The ALJ is required to review all of the medical findings and other evidence
that supports a medical source’s statement that a claimant is disabled. Moreover,
opinions on some issues, such as the claimant’s RFC and whether the claimant is
disabled or unable to work, “are not medical opinions, . . . but are, instead, opinions
on issues reserved to the Commissioner, because they are administrative findings
that are dispositive of a case; i.e., that would direct the determination or decision of
disability.” 20 C.F.R. §§ 404.1527(d), 416.927(d); SSR 96-5p. The ALJ, therefore, is
responsible for making the ultimate determination about whether a claimant meets
the statutory definition of disability. 20 C.F.R. § 404.1527(d)(1). The ALJ is not
required to give any special significance to the status of a physician as treating or
non-treating in weighing an opinion of whether the claimant meets a listed
impairment, a claimant’s RFC (20 C.F.R. §§ 404.1545, 404.1546) or the application of
vocational factors, because that ultimate determination is the sole province of the
Commissioner. 20 C.F.R. § 404.1527(e).
Here, the ALJ properly considered and analyzed Plaintiff’s alleged
impairments in assessing his RFC. Generally, when determining a plaintiff’s RFC
“[a]n ALJ must give a treating physician’s opinion substantial weight, unless good
cause is shown.” Castle v. Colvin, ––– F. App’x ––––, 2014 WL 595284 (11th Cir.
Feb. 18, 2014) (citing Phillips, 357 F.3d at 1240); 20 C.F.R. § 404.1527(c)(2); Lewis,
125 F.3d at 1440; Sabo v. Comm’r of Soc. Sec., 955 F. Supp. 1456, 1462 (M.D. Fla.
1996).

“Good cause exists when the ‘(1) treating physician’s opinion was not

bolstered by the evidence; (2) evidence supported a contrary finding; or (3) treating

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physician’s opinion was conclusory or inconsistent with the doctor’s own medical
records.’” Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1179 (11th Cir. 2011)
(quoting Phillips, 357 F.3d at 1240). Under the regulations, the ALJ must weigh any
medical opinion based on the treating relationship with the claimant, the length of
the treatment relationship, the evidence the medical source presents to support his
opinion, how consistent the opinion is with the record as a whole, the specialty of the
medical source and other factors. See 20 C.F.R. §§ 404.1527(c), (c)(2)(i)-(ii), (c)(3)-(6);

Edwards, 937 F.2d at 580 (ALJ properly discounted treating physician’s report where
the physician was unsure of the accuracy of his findings and statements); Lewis, 125
F.3d at 1440. Where a treating physician merely has made conclusory statements,
the ALJ may afford them such weight as is supported by clinical or laboratory
findings and other consistent evidence of a claimant’s impairments.

Schnor v.

Bowen, 816 F.2d 578, 582 (11th Cir. 1987); Wheeler v. Heckler, 784 F.2d 1073, 1075
(11th Cir. 1986); SSR 96-2p.
The Court finds that the ALJ properly considered Dr. Fabacher’s opinion in
the Questionnaire and assigned it little weight because there was no objective
evidence to bolster his opinion, and the opinion is not compelled by the overall record.
As the ALJ correctly noted in his decision, while Plaintiff suffers from some mental
impairments, the treatment notes during the alleged disability period were not
consistent with disabling mental limitations. On the contrary, most of his records
reflect that Plaintiff did not report any mental limitations or that his condition was
controlled with medication. Tr. 371, 540. Dr. Fabacher’s own treatment records, as

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noted by the ALJ, did not show significant symptoms, and his treatment notes do not
contain clinical observations to support his opinion. Tr. 18. Dr. Fabacher noted in
the treatment notes that Plaintiff’s condition is pretty much “status quo” and his
anxiety controlled with Xanax. 3

Tr. 17, 18, 540.

Further, David Clay, Ph.D.,

completed a Psychiatric Review Technique in October 2010, opining that Plaintiff’s
impairments do not affect his activities of daily living, and his limitations appear to
be primarily related to physical impairments, not mental limitations. Tr. 356-68.
Thus, the ALJ correctly found Dr. Fabacher’s opinion inconsistent with other
evidence in the record, his own treatment notes, and the objective medical findings of
other doctors who treated Plaintiff, all of which provides substantial evidence to
support the ALJ’s assessment of Plaintiff’s RFC. The ALJ supported his decision
and showed good cause for assigning little weight to Dr. Fabacher’s opinion, in
compliance with the applicable rules and regulations, by citing to specific evidence in
the record demonstrating that Dr. Fabacher’s opinion was inconsistent with the
record as a whole, were conclusory or inconsistent with the medical records, and made
no reference to any clinical or laboratory diagnostic techniques to support the
opinions. See Winschel, 631 F.3d at 1179. Consequently, the ALJ properly followed
the treating physician rule and had good cause to discount Dr. Fabacher’s opinion
and not give it controlling weight, which the Court finds is supported by substantial
evidence.

Further, and notably, the record contains only six pages of records from Dr.
Fabacher, dated January 24, 2011 to May 2, 2012, wherein Plaintiff saw him only six times
during this time period.
3

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C.

Exertional Demands of Light and Sedentary Work

Lastly, Plaintiff argues on appeal that he cannot perform light or even
sedentary work because he was prescribed a cane. Plaintiff asserts that because
light work requires an individual to be able to stand or walk, off and on, for
approximately six hours in an eight-hour workday, an individual who uses a cane
cannot perform these functions.

SSR 83-10.

Defendant responds that the

argument is without merit because the medical records do not establish Plaintiff
requires the cane to walk, nor does the record support a finding that Plaintiff needs
to use a cane to the extent it would preclude him from performing the full range of
light work. The Court agrees with the Commissioner that the RFC is supported by
substantial evidence.
When an impairment does not meet or equal a listed impairment at step 3, the
ALJ will proceed to step 4 to assess and make a finding regarding the claimant’s RFC
based upon all of the relevant medical and other evidence in the record. 20 C.F.R. §
404.1520(e). In this case, the ALJ found Plaintiff “did not have an impairment or
combination of impairments that meets or medically equals one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.” Tr. 25. The ALJ then
proceeded to assess and make a finding regarding the claimant’s RFC. The RFC is
the most that a claimant can do despite her limitations. See 20 C.F.R. § 404.1545(a).
As noted, the ALJ is required to assess a claimant’s RFC based on all of the relevant
evidence in the record, including any medical history, medical signs and laboratory
findings, the effects of treatment, daily activities, lay evidence, and medical source

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statements. Id. The determination of RFC is within the authority of the ALJ; and
the claimant’s age, education, and work experience is considered in determining the
claimant’s RFC and whether he can return to his past relevant work.

Lewis v.

Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997) (citing 20 C.F.R. § 404.1520(f)). The
RFC assessment is based upon all the relevant evidence of a claimant’s remaining
ability to do work despite his impairments. Phillips v. Barnhart, 357 F.3d 1232,
1238 (11th Cir. 2004); Lewis, 125 F.3d at 1440 (citing 20 C.F.R. § 404.1545(a)).
Here, as noted by the ALJ throughout his opinion, Plaintiff has been
ambulatory without assistance at his doctor’s visits and testified that he is on no
specific restrictions and can do whatever he can do. Tr. 16, 17, 20, 21. Plaintiff
argues that because Social Security Ruling 96-6p recognizes that the ability to
perform sedentary work may be impacted by the use of a cane, light work, which
entails frequent lifting up to 20 pounds, must be impacted. However, Social Security
Ruling 96-6p also states that to determine if an assistive device is medically required,
there must be medical documentation establishing the need for a hand-held assistive
device to aid in walking or standing, and describing the circumstances for which it is
needed (i.e., whether all the time, periodically, or only in certain situations; distance
and terrain; and any other relevant information).

Plaintiff’s March 2012

prescription for a cane, written by Zdenko Korunda, M.D., does not state under what
circumstances the cane is required, simply stating “dx: gait instability.” Tr. 406. In
addition, the record does not support a finding that Plaintiff needed to use a cane to

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the extent that it would preclude him from performing a range of light work, as found
by the ALJ.
Specifically, as discussed by the ALJ, Plaintiff was involved in a motor vehicle
accident in March 2005.

Tr. 304.

In October 2005, Plaintiff’s neck, back, and

extremities were normal, he had negative straight leg tests, and his gait and station
were normal. Tr. 16, 227, 229. In addition, the doctor noted that Plaintiff was
giving a poor effort. Tr. 16, 228. In November 2005, an MRI of Plaintiff’s cervical
spine showed posterior disc protrusion at C5-6 causing mild central canal stenosis
and no lateral neural foraminal narrowing, and mild posterior disc bulges at C3-4
and C6-7 without neural structure compromise. Tr. 16, 235. An MRI of the lumbar
spine showed mild posterior disc bulge at L4-5 and left paracentral disc protrusion at
L5-S1, not causing any neural structure compromise. Tr. 16, 236.
In May and June 2006, Plaintiff reported he had been able to work and perform
his activities of daily living independently. Tr. 16, 244, 246, 248. Plaintiff also
reported in June 2006 that he had been looking for a job because his previous business
had been sold. Tr. 16, 242. Plaintiff’s work activities and the fact that he applied
for work is further evidence he was not disabled. See 20 C.F.R. §§ 404.1571, 416.971
As noted by the ALJ, in March 2007, Plaintiff also had a negative straight leg
test. Tr. 16, 274. In April 2007, an MRI of the cervical spine showed mild disc space
desiccation at C3-4, and degenerative disc changes at C5-6 with no central canal
stenosis.

Tr. 16, 269.

An MRI of the lumbar spine showed only minimal

abnormalities. Tr. 16, 270. The ALJ also discussed the September 2010 evaluation

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by Douglas Salvage, M.D., where Plaintiff had a slow but otherwise normal gait and
negative straight leg testing. Tr. 17, 397. Dr. Rawlings also noted Plaintiff was
ambulatory without assistance. Tr. 353.
As discussed by the ALJ, Dr. Korunda reviewed recent MRIs of Plaintiff’s spine
in October 2010 and noted that Plaintiff’s pain complaints did not correlate with
diagnostic testing or his physical examination.

Tr. 17, 533.

In addition, while

Plaintiff reported spending most of his days watching television, Dr. Korunda noted
Plaintiff would benefit from significant lifestyle modifications. Tr. 533. In January
2011, Plaintiff also reported to Dr. Korunda that he went on a shooting trip with a
friend 100 miles away. Tr. 17, 496. Notably, although Dr. Korunda prescribed the
cane to Plaintiff, he placed no restrictions on his ability to perform work.
Further, when the ALJ asked the VE if Plaintiff could perform his past
relevant work given his RFC, including the occasional use of a cane, the VE testified
Plaintiff could perform the job of restaurant manager.

Tr. 52-53.

The ALJ’s

hypothetical question to the VE encompassed all the limitations the ALJ included in
his assessment of Plaintiff’s RFC. Tr. 19, 52-53. The ALJ, therefore, properly relied
on the VE’s testimony to find Plaintiff could perform his past relevant work as a
restaurant manager, even with the occasional use of a cane. Tr. 22. See 20 C.F.R.
§§ 404.1560(b)(2), 416.960(b)(2); Waldrop v. Comm’r of Soc. Sec., 379 F. App'x 948,
952-53 (11th Cir. 2010). Plaintiff has failed to show that his use of a cane affected
his ability to perform a range of light work as found by the ALJ, whose RFC
determination is supported by substantial evidence.

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V.

Conclusion

After a thorough review of the entire record, the undersigned finds that the
ALJ’s decision is supported by substantial evidence.
Accordingly, it is
ORDERED:
1.

The decision of the Commissioner is AFFIRMED.

2.

The Clerk of Court is directed to enter judgment pursuant to sentence

four of 42 U.S.C. § 405(g) in favor of the Commissioner.
3.

The Clerk is further directed to close the file.

DONE and ORDERED in Fort Myers, Florida on this 13th day of March, 2015.

Copies:
Counsel of record

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