Vega v. Commissioner of Social Security

Filing 23

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 Mac R. McCoy on 9/16/2016. (JTM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
YAMILA VEGA,
Plaintiff,
v.

Case No: 2:15-cv-280-FtM-MRM

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
/
OPINION AND ORDER
This cause is before the Court on Plaintiff Yamila Vega’s Complaint (Doc. 1) filed on
May 1, 2015. Plaintiff seeks judicial review of the final decision of the Commissioner of the
Social Security Administration (“SSA”) denying her 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’s 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 that can be expected to result in
death or that 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), 1382c(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 that exists in the national economy. 42 U.S.C. §§ 423(d)(2),
1382c(a)(3)(B); 20 C.F.R. §§ 404.1505 - 404.1511, 416.905 - 416.911.
B. Procedural History
On September 22, 2011, Plaintiff filed applications for disability insurance benefits and
supplemental security income asserting an onset date of May 1, 2009. (Tr. at 140, 148).
Plaintiff’s applications were denied initially on December 14, 2011, and on reconsideration on
February 2, 2012. (Tr. at 64, 75-76, 79, 89). A hearing was held before Administrative Law
Judge (“ALJ”) Hortensia Haaversen on July 19, 2013. (Tr. at 30-49). The ALJ issued an
unfavorable decision on September 4, 2013. (Tr. at 12-29). The ALJ found Plaintiff not to be
under a disability since September 22, 2011, the date her application for supplemental security
income was filed. (Tr. at 24).
On March 12, 2015, the Appeals Council denied Plaintiff’s request for review. (Tr. at 18). Plaintiff filed a Complaint (Doc. 1) in the United States District Court on May 1, 2015.
Defendant filed an Answer (Doc. 14) on July 23, 2015. Both parties filed memoranda in support
of their positions. (Docs. 19, 22). The parties consented to proceed before a United States
Magistrate Judge for all proceedings. (See Doc. 18). This case is ripe for review.
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 she is disabled. Packer v. Comm’r of Social Security, 542 F. App’x 890, 891
(11th Cir. 2013) (citing Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999)). 1 An ALJ must

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 31.1, Fed. R. App. P. Unpublished opinions may be
cited as persuasive authority pursuant to the Eleventh Circuit Rules. 11th Cir. R. 36-2.

2

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 past relevant work; and (5) can
perform other work of the sort found in the national economy. Packer, 542 F. App’x at 891
(citing 20 C.F.R. § 404.1520; 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).
In this case, the ALJ made no finding that Plaintiff met the insured status requirements
and, thus, only evaluated Plaintiff’s claim for supplemental security income. (See Tr. at 18). At
step one of the sequential evaluation, the ALJ found that Plaintiff had not engaged in substantial
gainful activity since September 22, 2011, the date of Plaintiff’s application for supplemental
security income. (Tr. at 20). At step two, the ALJ found that Plaintiff suffered from the
following severe impairment: degenerative disc disease. (Tr. at 20). 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 one of the listed impairments in 20 C.F.R. Part 404, Subpart
P, Appendix 1 (20 C.F.R. §§ 416.920(d), 416.925 and 416.926). (Tr. at 21).
Based on the evidence, the ALJ determined that Plaintiff had the residual functional
capacity (“RFC”) to perform “the full range of medium work as defined in 20 C.F.R. §
416.967(c).” (Tr. at 21). The ALJ specifically stated that Plaintiff “can lift and carry up to 50
pounds occasionally and 25 pounds frequently; and she can sit, stand, or walk for six hours in an
eight-hour workday.” (Tr. at 21-22). The ALJ based her opinion on the State agency (DDS)
medical consultant Sunita Patel, M.D. dated February 1, 2012. (Tr. at 22 (citing Tr. at 72)).

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At step four, the ALJ determined that Plaintiff is able to perform her past relevant work
as a Housekeeper, DOT code 323.687-014, light exertion, and unskilled with specific vocational
preparation (SVP) of 2. (Tr. at 24). 2 The ALJ stated that even though she found Plaintiff’s
mental impairment to be non-severe, the vocational expert (“VE”) testified that “an additional
limitation of simple and unskilled work would not preclude performance of these duty jobs.”
(Tr. at 24). The ALJ stated that “[i]n comparing [Plaintiff’s] residual functional capacity with
the physical and mental demands of this work, the undersigned finds that the [Plaintiff] is able to
perform it as actually and generally performed.” (Tr. at 24). The ALJ further determined that
the VE’s testimony was consistent with the information contained in the Dictionary of
Occupational Titles. (Tr. at 24). Because the ALJ determined that Plaintiff could perform her
past relevant work, the ALJ did not make any findings for step five. (See Tr. at 24). The ALJ
concluded that Plaintiff was not under a disability since September 22, 2011, the date her
application for supplemental security income was filed. (Tr. at 24).
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.

2

“DOT” refers to the Dictionary of Occupational Titles.

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Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995) (citing Richardson, 402 U.S. at 401;
Walden v. Schweiker, 672 F.2d 835, 838 (11th Cir. 1982)).
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 the 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 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) (holding the court must scrutinize
the entire record to determine reasonableness of factual findings).
II.

Analysis
Plaintiff argues three issues on appeal:
1. The ALJ erred by finding that Vega does not have a severe mental
impairment within the meaning of the Act because substantial evidence
does not support the conclusion that the impairments are only a “slight
abnormality” with a minimal effect of Vega’s ability to work.
2. The ALJ erred by failing to consider, or even mention Plaintiff’s medically
determinable knee impairment and failed to consider the side effects from
her medications in assessing Plaintiff’s work capacity, in violation of SSR
96-8p.
3. The ALJ erred by failing to obtain testimony from a vocational expert and,
instead, relying on a mechanical application of the Medical-Vocational
Guidelines.

(Doc. 19 at 5-15). The Court addresses each issue in turn.
A. Plaintiff’s Mental Impairments
Plaintiff first argues that the ALJ erred in finding that she does not have severe mental
impairments. (Doc. 19 at 5). Specifically, Plaintiff argues that her medically determinable

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impairments of affective disorder and anxiety are clearly reflected in the record. (See id. at 7).
Plaintiff also states that the ALJ erred by relying on the opinion of the non-examining State
agency medical consultant Dr. B. Lee Hudson to support her finding that Plaintiff’s mental
impairments are non-severe because the opinion was rendered “prior to the vast majority of the
evidence of record and more than 19 months prior to the ALJ decision.” (Id. at 9 (citing Tr. at
70). Additionally, Plaintiff argues that the ALJ erred by giving little weight to Plaintiff’s treating
physicians and also her Global Assessment of Functioning (“GAF”) score. (Id. at 10). Thus,
Plaintiff argues that “the ALJ’s finding that [Plaintiff] does not have a severe medically
determinable mental impairment is not supported by substantial evidence and reversal of the
Commissioner’s decision is appropriate.” (Id.).
Defendant, however, argues that substantial evidence supports the ALJ’s findings. (Doc.
22 at 5). Defendant specifically points to Plaintiff’s testimony and the medical records in
support of the ALJ’s findings. (See id. at 5-6). Additionally, although Defendant acknowledges
that there were subsequent records after Dr. Hudson’s opinion, Defendant argues that those
subsequent records showed that “Plaintiff’s symptoms improved when she was compliant with
medication.” (Id. at 6 (citing Tr. at 23, 256, 281, 283, 285, 312)). Defendant further argues that
Plaintiff’s treatment notes after the consultants’ opinions included similar findings. (Id. at 7
(citing Tr. at 300-02, 304-05, 308-09, 312-17, 373-75)). Defendant argues, therefore, that
Plaintiff “fails to show her mental condition significantly deteriorated after the consultants gave
their opinions.” (Id.). Additionally, Defendant argues that the ALJ was correct to reject the
GAF scores because the Commissioner has determined that GAF scores are unreliable. (Id. at 89). Thus, Defendant argues that substantial evidence supports the ALJ’s finding that Plaintiff’s
mental impairments were not severe. (Id. at 10). Defendant contends, moreover, that the ALJ

6

did not err by giving greater weight to the State agency consultant rather than Plaintiff’s treating
physicians. (See id. at 9-10).
Finally, Defendant argues that “the finding of any severe impairment, whether or not it
qualifies as a disability and whether or not it results from a single severe impairment or a
combination of impairments that together qualify as severe, is enough to satisfy the requirement
of step two.” (Id. at 10 (citing Jamison v. Bowen, 814 F.2d 585, 588 (11th Cir. 1987)).
Defendant states that “[t]his is because, once the ALJ proceeds beyond step two, she is required
to consider the claimant’s entire medical condition, including impairments she determined were
not severe.” (Id. (citing Burgin v. Comm’r of Soc. Sec., 420 F. App’x 901, 902 (11th Cir. 2011)).
Defendant states that the ALJ “credited Plaintiff with a severe impairment at step two, which is
all she was required to do.” (Id.). Thus, because the ALJ considered Plaintiff’s severe and nonsevere impairments together with the “‘entire record’ and ‘all symptoms’ to the extent they were
consistent with the record evidence,” Defendant argues that the ALJ did not err. (Id. at 10-11).
The Court notes that, at step two, “[a]n impairment is not severe only if the abnormality
is so slight and its effect so minimal that it would clearly not be expected to interfere with the
individual’s ability to work, irrespective of age, education or work experience.” McDaniel v.
Bowen, 800 F.2d 1026, 1031 (11th Cir. 1986). A severe impairment must bring about at least
more than a minimal reduction in a claimant’s ability to work, and must last continuously for at
least twelve months. See 20 C.F.R. §§ 404.1505(a). This inquiry “acts as a filter” so that
insubstantial impairments will not be given much weight. Jamison, 814 F.2d at 588. While the
standard for severity is low, the severity of an impairment “must be measured in terms of its
effect upon ability to work, and not simply in terms of deviation from purely medical standards
of bodily perfection or normality.” McCruter v. Bowen, 791 F.2d 1544, 1547 (11th Cir. 1986).

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According to the Eleventh Circuit, however, “[n]othing requires that the ALJ must
identify, at step two, all of the impairments that should be considered severe.” Heatly v. Comm’r
of Soc. Sec., 382 F. App’x 823, 825 (11th Cir. 2010). Rather, the ALJ must only consider the
claimant’s impairments in combination, whether severe or not. Id. If any impairment or
combination of impairments qualifies as “severe,” step two is satisfied and the claim advances to
step three. Gray v. Comm’r of Soc. Sec., 550 F. App’x 850, 852 (11th Cir. 2013) (citing
Jamison, 814 F.2d at 588).
In this case, the ALJ made a determination that Plaintiff suffered from the following
severe impairment: degenerative disc disease. (Tr. at 20). Because the ALJ made a
determination that Plaintiff suffered from at least one severe impairment, the ALJ was not
required to list every impairment that may be classified as severe. See Heatly, 382 F. App’x at
825. The only requirement is that the ALJ considered Plaintiff’s impairments in combination,
whether severe or non-severe. See id.
Here, the record demonstrates that the ALJ evaluated all of Plaintiff’s impairments in
combination, whether severe or non-severe. Specifically, in making her RFC determination, the
ALJ stated that:
the undersigned has considered all symptoms and the extent to which these
symptoms can reasonably be accepted as consistent with the objective medical
evidence and other evidence, based on the requirements of 20 CFR 416.929 and
SSRs 96-4p and 96-7p. The undersigned has also considered opinion evidence in
accordance with the requirements of 20 CFR 416.927 and SSRs 96-2p, 96-5p, 966p and 06-3p.
(Tr. at 22) (emphasis added).
Moreover, the Court notes that the ALJ specifically found that Plaintiff’s medically
determinable mental impairments of affective disorder and anxiety were not severe. (Tr. at 20).
In doing so, the ALJ specifically considered the medical evidence of record regarding Plaintiff’s

8

symptoms. Additionally, the Court notes that the ALJ specifically discussed the effects of
Plaintiff’s mental impairments on her ability to work in the RFC assessment. (Tr. at 22-24).
Based on these statements, the Court concludes that the ALJ considered all of Plaintiff’s
impairments, whether severe or not, when she considered the evidence of record.
In this case, regardless of whether the ALJ erred in her conclusion that Plaintiff’s mental
impairments were non-severe, the record demonstrates that the ALJ considered Plaintiff’s mental
impairments in combination with Plaintiff’s other impairments. Therefore, the ALJ applied the
correct legal standard and did not err in failing to find Plaintiff’s mental impairments are severe,
or if she did err, the error was harmless. See Heatly, 382 F. App’x at 825.
Additionally, to the extent that Plaintiff argues that the ALJ erred by failing to give
controlling weight to Plaintiff’s treating physicians or the GAF score regarding Plaintiff’s mental
impairment, as will be explained in greater detail Part D infra, the Court finds that the ALJ’s
assessments regarding Plaintiff’s mental impairments are supported by other substantial medical
evidence of record. Accordingly, good cause exists to give less weight to the opinions of
Plaintiff’s treating physicians and the GAF score. See Phillips, 357 F.3d at 1240-41.
B. Plaintiff’s Knee Impairment
Plaintiff next argues that the ALJ erred by failing to consider, or even mention Plaintiff’s
medically determinable knee impairment in assessing Plaintiff’s work capacity. (Doc. 19 at 10).
Plaintiff argues that the testimonial and medical evidence demonstrates that Plaintiff has severe
knee impairments. (Id. at 11-12). Despite this evidence, Plaintiff argues that “the ALJ
completely ignored the condition at ‘step two’ of the sequential evaluation process,” and, thus,
Plaintiff’s knee impairments were “not considered at subsequent steps nor in formulating the
RFC assessment.” (Id. at 12). Accordingly, Plaintiff argues that “[t]he ALJ’s failure to properly

9

consider this condition renders the RFC and credibility assessments fatally flawed and
unsupported by substantial evidence.” (Id.).
Defendant, however, argues that “[t]he ALJ’s decision shows she explicitly considered
Plaintiff’s testimony she had knee pain” in her RFC analysis. (Doc. 22 at 11). Additionally, as
with Plaintiff’s mental impairments, Defendant argues that “the finding of any severe
impairment is enough to satisfy step two.” (Id. at 11 n.2 (citing Heatly, 382 F. App’x at 824-25;
Jamison, 814 F.2d at 588)). Defendant argues that because “the ALJ credited Plaintiff with a
severe impairment and moved on in the sequential evaluation process, the ALJ did not err at step
two.” (Id.). Defendant further argues that “Plaintiff fails to show her knee impairment caused
greater limitations than the ALJ’s RFC finding.” (Id.). Thus, Defendant argues that the ALJ’s
RFC findings were “explicit and supported by citation to specific evidence” and that substantial
evidence supports the ALJ’s RFC findings that Plaintiff could perform medium work. (See id. at
14).
As stated above, the ALJ made a determination that Plaintiff suffered from the following
severe impairment: degenerative disc disease. (Tr. at 20). Because the ALJ made a
determination that Plaintiff suffered from at least one severe impairment at step two, the ALJ
was not required to list every impairment that may be classified as severe. See Heatly, 382 F.
App’x at 825. The only requirement is that the ALJ considered Plaintiff’s impairments in
combination, whether severe or non-severe. See id.
Here, the record demonstrates that the ALJ evaluated all of Plaintiff’s impairments in
combination, whether severe or non-severe. (See discussion supra; Tr. at 22). The Court notes
that the ALJ specifically considered the medical and testimonial evidence of record regarding
Plaintiff’s history of knee pain. (Tr. at 22-24). Further, the record shows that the ALJ

10

specifically considered Plaintiff’s knee impairments when making her RFC determination that
Plaintiff could perform medium work. (See Tr. at 22-24).
Based on these statements, the Court concludes that the ALJ considered all of Plaintiff’s
impairments, whether severe or not, when she considered the evidence of record. Thus,
regardless of whether the ALJ erred in her conclusion that Plaintiff’s knee impairment was nonsevere, the record demonstrates that the ALJ considered Plaintiff’s knee impairment in
combination with Plaintiff’s other impairments. Therefore, the ALJ applied the correct legal
standard and did not err in failing to find Plaintiff’s knee impairments are severe, or if she did
err, the error was harmless. See Heatly, 382 F. App’x at 825.
C. Side Effects from Plaintiff’s Medication
Plaintiff also argues that “[t]he ALJ is required to consider side effects from medications
in formulating the RFC and determining a claimant’s ability to work.” (Doc. 19 at 12). Plaintiff
argues that the “side effects of medication alone can render a claimant disabled or at least
contribute to disability.” (Id. at (citing Cowart v. Schweiker, 662 F.2d 731, 737 (11th Cir.
1981))). Here, Plaintiff argues that she “indicated that various medications cause her to be dizzy
and drowsy.” (Id. (citing Tr. at 183)). Thus, “the ALJ’s failure to properly consider side effects
from medications renders the RFC and credibility assessments unsupported by substantial
evidence.” (Id.).
Defendant disagrees, arguing that substantial evidence supports the ALJ’s RFC and
credibility assessments. (Doc. 22 at 14). Specifically, Defendant argues that Plaintiff did not
show that her alleged side effects from her medication caused greater limitations than the ALJ’s
RFC finding that Plaintiff could perform medium work. (See id. at 13). Defendant argues that
“[i]n determining whether a claimant’s impairments limit a claimant’s ability to work, the ALJ

11

considers the claimant’s subjective symptoms, which includes the effectiveness and side effects
of any medications taken for those symptoms.” (Id. (citing 20 C.F.R. § 416.929(c)(3)(iv))).
In this case, Defendant states that while Plaintiff stated that her medication caused
dizziness and drowsiness, Plaintiff was not able “to identify any side effects at her hearing when
asked what side effects she had, if any.” (Id. (citing Tr. at 39)). Defendant further argues that
“[i]t is not enough for Plaintiff simply to allege side effects, she must introduce evidence
supporting her claim that her medications cause side effects.” (Id. (citing Walker v. Comm’r of
Soc. Sec., 404 F. App’x 362, 366 (11th Cir. 2010)). Moreover, Defendant states that the ALJ
“appropriately noted that the overall medical evidence showed Plaintiff had no side effects from
her medication.” (Id. at 14 (citing Tr. at 23)). Thus, Defendant argues that “[t]he ALJ properly
considered the relevant medical and other evidence in determining Plaintiff’s RFC, including
evidence regarding . . . if there were any side effects from her medication.” (Id.). Thus,
Defendant argues that the ALJ’s “credibility and RFC findings were both explicit and supported
by citation to specific evidence” and that “[s]ubstantial evidence supports the ALJ’s RFC and
credibility findings.” (Id.).
On this issue, Plaintiff cites Cowart v. Schweiker, 662 F.2d 731, 737 (11th Cir. 1981) for
the proposition that the “side effects of medication alone can render a claimant disabled or at
least contribute to disability.” (Doc. 19 at 12). The Court finds here, however, that Plaintiff’s
reliance on Cowart is misplaced. See Foreman v. Astrue, No. 8:09-cv-932-T-24AEP, 2010 WL
3292810, at *4 (M.D. Fla. Aug. 3, 2010), report and recommendation adopted, No. 8:09-cv-932T-24-AE, 2010 WL 3292815 (M.D. Fla. Aug. 19, 2010) (explaining that Cowart is about the
ALJ’s duty to fully develop the record, not for determining if a claimant is disabled due to the
side effects of medication). In Cowart, the Eleventh Circuit found that the ALJ failed to fully

12

develop the record because he did not elicit testimony or make findings regarding the effect of
the claimant’s prescribed medications on her ability to work when the claimant was not
represented by counsel. Cowart, 662 F.2d at 737. When, as in this case, a claimant is
represented by counsel, the Eleventh Circuit has refused to find that failure to inquire further into
possible side effects of medication deprived a claimant of a meaningful opportunity to be heard.
See Cherry v. Heckler, 760 F.2d 1186, 1190-91 (11th Cir. 1985).
Regardless, the Eleventh Circuit has held that “the ALJ’s obligation to develop the record
does not relieve the claimant of the burden of proving she is disabled.” Walker v. Comm’r of
Soc. Sec., 404 F. App’x 362, 366 (11th Cir. 2010) (citing Ellison v. Barnhart, 355 F.3d 1272,
1276 (11th Cir. 2003)). Rather, a claimant “must introduce evidence supporting her claim that
her symptoms (including any medication side effects) make her unable to work.” Id.
For instance, in Walker, the Eleventh Circuit held that “the ALJ applied the correct legal
standards and adequately developed the record regarding the effect of [the claimant’s]
symptoms, including medication side effects, on her ability to work.” Id. There, the Eleventh
Circuit noted that “[d]uring the hearing, [the claimant] was asked about her medications and any
side effects.” Id. The claimant responded that “the only side effects she experienced were
dizziness and headaches.” Id. In that case, the Court noted that the ALJ found the claimant’s
statements concerning the intensity, persistence and limiting effects of her symptoms not entirely
credible. Id. at 367. Furthermore, the Court noted that nothing in the claimant’s “testimony
suggested that her headaches and dizziness were severe enough to be disabling either alone or in
combination with her other impairments.” Id. Thus, based on those factors, the Court held that
“the ALJ was not under a duty to elicit further information about [the claimant’s] medication
side effects.” Id.

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In this case, the record shows that the ALJ considered the effects of Plaintiff’s
medication. The ALJ specifically stated that “[t]he overall evidence of record shows the
claimant has no side effects from her medication.” (Tr. at 23). In making this finding, the ALJ
specifically cited Exhibits 7F and 10F. (Tr. at 23). Exhibit 7F, dated December 14, 2011, shows
that no side effects were reported for Plaintiff’s medications. (Tr. at 279). Additionally, Exhibit
10F, dated February 21, 2012 and April 19, 2012, states in two separate places that Plaintiff does
not have side effects with her current medication. (Tr. at 312, 315). Moreover, in two other
places, Exhibit 10F also states that Plaintiff remained stable on her therapeutic regimen. (Tr. at
314, 317). Thus, the ALJ’s finding that [t]he overall evidence of record shows the claimant has
no side effects from her medication” is based upon substantial medical evidence of record. (See
Tr. at 23).
Furthermore, as in Walker, Plaintiff was represented by counsel, and the ALJ asked
Plaintiff at the hearing whether the medications resulted in any side effects. (Tr. at 39). Plaintiff
responded that she did not know if she had any side effects from her medications. (Tr. at 39).
Like Walker, the ALJ here also found that Plaintiff’s statements concerning the intensity,
persistence, and limiting effects of her symptoms were not entirely credible because they were
not supported by the medical evidence of record. (See Tr. at 23). Moreover, like Walker,
nothing in Plaintiff’s testimony here suggests that the side effects from her medication –
dizziness and/or drowsiness – were severe enough to be disabling either alone or in combination
with her other impairments. See Walker, 404 F. App’x at 366. Thus, the ALJ was not under a
duty to elicit further information about Plaintiff’s medication side effects. Id.
While the Court notes that Plaintiff stated in a pre-hearing Function Report that that her
medication caused dizziness and drowsiness (Tr. at 184), Plaintiff has not provided any evidence

14

that the side effects from her medications preclude her from working. Moreover, Defendant is
also correct that Plaintiff has not provided any evidence that Plaintiff cannot perform medium
work. (See Doc. 22 at 14). Thus, the Court finds that (1) Plaintiff has failed to meet her burden
of proving she is disabled, and (2) Plaintiff has failed to “introduce evidence supporting her
claim that her symptoms (including any medication side effects) make her unable to work.” See
Walker, 404 F. App’x at 366. Therefore, upon consideration, the Court finds that the ALJ’s RFC
assessment and credibility assessment regarding the side effects of Plaintiff’s medication is
supported by substantial evidence. Accordingly, the ALJ’s RFC assessment and credibility
assessment regarding the side effects of Plaintiff’s medication are affirmed, and remand is not
warranted on this ground.
D. Vocational Expert Testimony
The final issue raised by Plaintiff is that the ALJ erred by failing to obtain testimony from
a vocational expert (“VE”) and, instead, relied on a mechanical application of the MedicalVocational Guidelines, known as the Grids. (Doc. 19 at 13-16). Plaintiff argues that “‘exclusive
reliance on the grids is not appropriate either when the claimant is unable to perform a full range
of work at a given residual functional level or when a claimant has a nonexertional impairment
that significantly limits basic work skills.’” (Id. at 13 (citing Foote 67 F.3d at 1558)). Plaintiff
argues that “once the finding is made that a claimant cannot return to prior work, the burden of
proof shifts to the Secretary to show other work the claimant can do.” (Id. (citing Foote 67 F.3d
at 1559)). Plaintiff argues that “[t]he preferred method of demonstrating that the claimant can
perform specific work is through the testimony of a vocational expert.” (Id. (citing Foote 67
F.3d at 1559)).

15

In this case, Plaintiff notes that the ALJ found that Plaintiff can perform a full range of
medium work. (Id. at 14 (citing Tr. at 21)). Nevertheless, Plaintiff argues that “the evidence
from treating providers demonstrates that [Plaintiff] has nonexertional limitations that would
erode the range of work she can perform at any given level.” (Id.). Plaintiff points to her knee
problems and mental impairments as creating limitations that are not expressed in the ALJ’s RFC
assessment. (See id.). Plaintiff argues that “[w]hen nonexertional limitations ‘significantly limit
basic work skills’ that preclude a claimant from performing ‘a wide range’ of work at a given
work level, the ALJ must consult a vocational expert.” (Id. (citing Phillips, 357 F.3d at 1243)).
Plaintiff argues that the ALJ “failed to adequately consider [Plaintiff’s] nonexertional limitations
in formulating the residual functional capacity assessment” and that “the ALJ erred by
mechanically applying the vocational-medical guidelines despite overwhelming medical
evidence that [Plaintiff’s] impairments preclude her from performing ‘a wide range’ of work at
the medium level.” (Id. at 14-15). Thus, Plaintiff argues that “the ALJ’s finding that Vega could
perform the full range of work at the medium level of exertion is not supported by substantial
evidence and constitutes harmful error.” (Id. at 15).
Defendant disagrees. Defendant argues that at step four, Plaintiff “bears the burden of
demonstrating that she cannot return to her past relevant work.” (Doc. 22 at 15 (citing Lucas v.
Sullivan, 918 F.2d 1567, 1571 (11th Cir. 1990))). Defendant states that “[a]n ALJ determines
whether a claimant can perform past relevant work by comparing the claimant’s RFC with the
physical and mental demands of a claimant’s past relevant work.” (Id. (citing 20 C.F.R. §
416.960(b); Crayton v. Callahan, 120 F.3d 1217, 1219 (11th Cir. 1997))).
Defendant further argues that although not required, an ALJ may use a vocational expert
at step four to establish a claimant’s ability to perform her past relevant work. (Id. (citing 20

16

C.F.R. § 416.960(b)(2))). On this point, Defendant notes that “this is not a case where the ALJ
relied on the Medical Vocational Guidelines (Grids) to find she was not disabled.” (Id.). Rather,
Defendant notes that “the ALJ asked a VE whether a hypothetical claimant with Plaintiff’s age,
past relevant work, and RFC could perform Plaintiff’s past relevant work as a
housekeeper/cleaner.” (Id. (citing Tr. at 47)). Defendant states that “[t]he ALJ asked the VE to
limit the hypothetical claimant to occasionally lifting/carrying 50 pounds and frequently
lifting/carrying 25 pounds; standing/walking and sitting six hours each in an eight-hour workday;
and a job that does not require her to communicate in English.” (Id. (citing Tr. at 47)).
Defendant further notes that “[w]hile not included in the ALJ’s RFC finding, the ALJ also asked
the VE to limit the hypothetical claimant to simple and routine tasks.” (Id. (citing Tr. at 48)).
Defendant notes that, even with those additional limitations, “the VE testified the hypothetical
claimant could perform Plaintiff’s past relevant work as a housekeeper/cleaner.” (Id. (citing Tr.
at 47-48)). Further, Defendant notes that “[t]he VE also testified Plaintiff’s past work as a
housekeeper/cleaner was light and unskilled.” (Id. (citing Tr. at 47)). Thus, Defendant reasons
that “[i]f someone can do medium work, then he or she can also do sedentary and light work.”
(Id.).
In this case, Defendant argues that “[w]hile Plaintiff continues to argue that she had
greater limitations than the ALJ’s RFC finding due to her knee pain and mental impairments, . . .
the ALJ’s RFC finding is supported by substantial evidence.” (Id. at 16). Thus, Defendant
argues that “the ALJ is not required to include limitations in a hypothetical question that she does
not find supported by the record.” (Id. (citing Crawford, 363 F.3d at 1161)).
As an initial matter, the Court notes that Plaintiff argues that “once the finding is made
that a claimant cannot return to prior work, the burden of proof shifts to the Secretary to show

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other work the claimant can do.” (Id. (citing Foote 67 F.3d at 1559)). The record here is clear,
however, that the ALJ found that Plaintiff could return to her past work as a housekeeper. (Tr. at
24). Thus, the burden did not shift back to the Commissioner to show what other work that
Plaintiff can do. See Hines-Sharp, 511 F. App’x at 915 n.2.
Moreover, Defendant is also correct that although not required to do so, an ALJ may use
a VE at step four to establish a claimant’s ability to perform her past relevant work. (Doc. 22 at
15 (citing 20 C.F.R. § 416.960(b)(2))). The regulations state, in pertinent part:
We may use the services of vocational experts or vocational specialists, or other
resources, such as the “Dictionary of Occupational Titles” and its companion
volumes and supplements, published by the Department of Labor, to obtain
evidence we need to help us determine whether you can do your past relevant work,
given your residual functional capacity. A vocational expert or specialist may offer
relevant evidence within his or her expertise or knowledge concerning the physical
and mental demands of a claimant's past relevant work, either as the claimant
actually performed it or as generally performed in the national economy. Such
evidence may be helpful in supplementing or evaluating the accuracy of the
claimant's description of his past work. In addition, a vocational expert or specialist
may offer expert opinion testimony in response to a hypothetical question about
whether a person with the physical and mental limitations imposed by the claimant's
medical impairment(s) can meet the demands of the claimant’s previous work,
either as the claimant actually performed it or as generally performed in the national
economy.
20 C.F.R. § 416.960(b)(2) (emphasis added). Nothing in this regulation requires the use of a
vocational expert. Rather, the use of a vocational expert at step four is discretionary. See Colon
ex rel. Colon v. Astrue, No. 808-cv-1191-T-17TEM, 2009 WL 2997187, at *5 (M.D. Fla. Sept.
18, 2009) (“The use of a vocational expert at step 4 of the sequential analysis is discretionary.”),
aff’d sub nom. Colon ex rel. Colon v. Comm’r of Soc. Sec., 411 F. App’x 236 (11th Cir. 2011).
Further, as stated above, the scope of the Court’s review is limited to determining
whether the ALJ applied the correct legal standard, McRoberts, 841 F.2d at 1080, and whether
the findings are supported by substantial evidence, Richardson, 402 U.S. at 390. When

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supported by substantial evidence, the district court will affirm. See Edwards, 937 F.2d at 584
n.3; Barnes, 932 F.2d at 1358. Moreover, when an ALJ’s findings are supported by substantial
evidence, an ALJ is not required to include additional non-exertional limitations. See Vesy v.
Astrue, 353 F. App’x 219, 223 (11th Cir. 2009) (finding no error when the medical records did
not show that the claimant’s symptoms affected her ability to perform light work).
Upon consideration of Plaintiff’s testimony and the medical records, the Court finds that
the ALJ’s RFC assessment of Plaintiff is supported by substantial evidence. The Court
specifically addresses Plaintiff’s contentions regarding her knee impairments and mental
impairments below.
First, as to Plaintiff’s knee impairments, the ALJ specifically noted that while Plaintiff
had a history of right knee pain along with buckling and giving way, Dr. Robert Martinez, M.D.
noted that bracing markedly improved Plaintiff’s ability to walk with minimal discomfort. (Tr.
at 22). Additionally, the ALJ cited medical records showing that Plaintiff had “no deformities,
no acute distress, has a normal gait and posture” and has “no motor deficits.” (Tr. at 23 (citing
Tr. at 333)). The ALJ also cited Plaintiff’s testimony that she only has pain in her knee “[o]nce
in a while.” (Tr. at 22 (citing Tr. at 41)). Moreover, the ALJ relied on the opinion the State
agency consultant, Sunita Patel, M.D., who considered records pertaining to Plaintiff’s knee pain
in assessing Plaintiff’s RFC and opined that Plaintiff could perform medium work. (Tr. at 23
(citing Tr. at 71-73)). Upon consideration, these medical records and opinions are substantial
evidence supporting the ALJ’s RFC finding regarding Plaintiff’s knee impairments and, thus, do
not contradict the finding that Plaintiff can perform medium work.
Additionally, as to Plaintiff’s mental impairments, the ALJ cited treatment records from
Lee Mental Health Center stating that Plaintiff had “adequate cognitive ability and fair judgment

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and insight.” (Tr. at 23 (citing Tr. at 283)). The ALJ further noted that medication appears to
help Plaintiff’s depression and anxiety. (Tr. at 23 (citing Tr. at 283)). Moreover, as the ALJ
noted, even though Plaintiff at one point had reported worsening depression symptoms, Plaintiff
admitted that she had ran out of medication at the time of that visit. (Tr. at 23 (citing Tr. at
373)).
Furthermore, the ALJ credited the opinion of Dr. Hudson, Ph.D., who indicated that
Plaintiff’s mental limitations are not severe. (Tr. at 23 (citing Tr. at 70)). In fact, the ALJ cited
Plaintiff’s testimony as supporting Dr. Hudson’s opinion. (Tr. at 23). For instance, the ALJ
cited Plaintiff’s testimony at the hearing that indicated that Plaintiff “is able to drive, complete
household chores, care for her 12 year-old son, manage money and follow directions” in support.
(Tr. at 23). Additionally, the ALJ noted that Plaintiff stated that her panic attacks had decreased
to only every three months or so. (Tr. at 23).
Upon consideration, the Court finds that the above-cited medical records and Plaintiff’s
testimony are substantial evidence that support the ALJ’s RFC assessment regarding Plaintiff’s
mental impairments and, thus, do not contradict the ALJ’s finding that Plaintiff could perform
medium work.
In this case, even if the Court would have reached a contrary result and even if the Court
found that “the evidence preponderates against” the Commissioner’s decision, the Court is still
bound to the Commissioner’s decision when it is supported by substantial evidence. Edwards,
937 F.2d at 584 n.3; Barnes, 932 F.2d at 1358. Here, the ALJ cited specific medical records and
Plaintiff’s testimony to support her RFC assessment and finding that Plaintiff can perform
medium work. (See Tr. at 21-24). Thus, the Court finds that the ALJ’s RFC assessment is
supported by substantial evidence. (See Doc. 22 at 16). Because the ALJ’s RFC findings are

20

supported by substantial evidence, the ALJ did not err by failing to include non-exertional
limitations in the RFC assessment. See Vesy, 353 F. App’x at 223.
Further, as noted above, nothing in the regulations requires the use of a vocational expert
when the ALJ finds that Plaintiff could return to her past relevant work. See 20 C.F.R. §
416.960(b)(2). In this case, however, it appears the ALJ chose to do so. In fact, the ALJ’s
hypotheticals posed additional limitations. (Tr. at 47-48). Even with those additional
limitations, however, “the VE testified the hypothetical claimant could perform Plaintiff’s past
relevant work as a housekeeper/cleaner.” (Tr. at 47-48). Moreover, the ALJ found that the VE’s
testimony was consistent with the information contained in the DOT. (Tr. at 24). Thus, it
appears that the ALJ properly relied on the VE in her decision. Regardless, because the ALJ’s
RFC assessment is supported by substantial evidence, remand is not warranted for any failure by
the ALJ to obtain testimony from a vocational expert.
III.

Conclusion

Upon consideration of the submissions of the parties and the administrative record, the
Court finds that the decision of the ALJ is supported by substantial evidence and decided upon
proper legal standards.
Accordingly, IT IS HEREBY ORDERED:
The decision of the Commissioner is hereby 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.

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DONE AND ORDERED in Fort Myers, Florida on September 16, 2016.

Copies furnished to:
Counsel of Record
Unrepresented Parties

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