Florio v. Commissioner of Social Security

Filing 22

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, and close the file. Signed by Magistrate Judge Carol Mirando on 1/24/2017. (LS)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MICHAEL FLORIO,
Plaintiff,
v.

Case No: 2:15-cv-548-FtM-CM

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
ORDER
Plaintiff Michael Florio seeks judicial review of the denial of his claim for
Supplemental Security Income (“SSI”) by the Commissioner of the Social Security
Administration (“Commissioner”). The Court has reviewed the record, the briefs,
and the applicable law.

For the reasons discussed herein, the decision of the

Commissioner is AFFIRMED.
I.

Issues on Appeal 1

Plaintiff raises three issues on appeal: (1) whether substantial evidence
supports the determination of the Administrative Law Judge (“ALJ”) concerning
Plaintiff’s Residual Functional Capacity (“RFC”) and in doing so whether the ALJ
properly evaluated the opinions of Plaintiff’s treating physician; (2) whether the
ALJ’s credibility assessment of Plaintiff is supported by substantial evidence, and (3)
Any issue not raised by Plaintiff on appeal is deemed to be waived. Access Now, Inc. v.
Southwest Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004) (holding “a legal claim or
1

argument that has not been briefed before the court is deemed abandoned and its merits will
not be addressed.”)

whether the ALJ’s finding that Plaintiff is capable of performing other work that
exists in substantial numbers in the national economy is supported by substantial
evidence.
II.

Procedural History and Summary of the ALJ’s Decision

On July 8, 2011, Plaintiff filed an application for SSI alleging a disability onset
date of November 29, 2010. Tr. 13, 146-55. Plaintiff alleged disability due to back
and right knee injuries, a fractured toe, attention deficit disorder, anxiety and a
mental condition. Tr. 180.

The application was denied initially and upon

reconsideration. Tr. 66, 76. Plaintiff requested and received a hearing, which was
held in Ft. Myers, Florida before ALJ M. Dwight Evans on November 13, 2013. Tr.
13-23. Plaintiff was represented by counsel during the hearing; and Plaintiff and a
vocational expert (“VE”) testified at the hearing. Tr. 13, 29-65.
On April 18, 2014, the ALJ issued a decision finding Plaintiff not disabled from
May 10, 2011 through the date of the decision. Tr. 13-23. At step one, the ALJ
determined that Plaintiff had not engaged in substantial gainful activity since July
8, 2011, the application date. Tr. 15. At step two, the ALJ determined that Plaintiff
has the following severe impairments: degenerative disc disease of the lumbar spine,
low back pain, bilateral knee joint pain, great right toe pain, status post right great
toe fracture and anxiety disorder.

Id.

At step three, the ALJ concluded that

Plaintiff “does not have an impairment or combination of impairments that meets or
medically equals the severity of one of the listed impairments in 20 CFR Part 404,

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Subpart P, Appendix 1” Id. The ALJ then determined that Plaintiff has the RFC
to perform light work 2 with the following exertional and nonexertional limitations:
[Plaintiff] is able to occasionally lift/carry 20 pounds, frequently
lift/carry 10 pounds, stand/walk about 4 hours in an 8-hour workday,
sit about 6 hours in an 8-hour workday, and has unlimited ability to
push and pull including operation of hand and/or foot controls.
[Plaintiff] can frequently balance with the use of his cane. [Plaintiff]
can frequently reach overhead with both arms. [Plaintiff] can
occasionally climb ramps, stairs, ladders, ropes, and scaffolds.
[Plaintiff] can occasionally stoop and kneel. [Plaintiff] has unlimited
ability to handle (gross manipulation), finger (fine manipulation), and
feel. [Plaintiff] can tolerate occasional[] exposure to extreme cold,
vibration, humidity, proximity to moving, mechanical parts, and
working in high, exposed places. [Plaintiff] can tolerate unlimited
exposure to extreme heat, wetness, noise intensity, and atmospheric
conditions such as fumes, odors, dusts, and gases. [Plaintiff] is able to
understand, remember, and carry out simple instructions.

Id. at 17 (emphasis in original). Next, the ALJ found Plaintiff is unable to perform
any past relevant work as a tile finisher, handy man or carpet cutter/fork lift
operator. 3 Tr. 19. Considering Plaintiff’s age, education, work experience, RFC,

2

The regulations define “light work” as follows:
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(b).
The tile finisher job is classified as skilled work at the very heavy exertional level;
however, the VE testified that Plaintiff performed this job at the heavy level. Tr. 56. The
handy man job also is classified as skilled work at the medium exertional level; however
Plaintiff performed this job at the very heavy level. Id. And the combination carpet
cutter/fork lift operation job that Plaintiff performed is classified as semi-skilled work at the
3

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and the testimony of the VE, the ALJ determined there are jobs that exist in
significant numbers in the national economy that Plaintiff can perform and therefore
concluded he has not been under a disability from July 8, 2011 through the date of
the decision. Tr. 23.
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 which 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. §416.920.

The Eleventh Circuit has summarized the five steps as follows:
(1) whether the claimant is engaged in substantial gainful activity; (2)
if not, whether the claimant has a severe impairment or combination of
impairments; (3) if so, whether these impairments meet or equal an
impairment listed in the Listing of Impairments; (4) if not, whether the
claimant has the residual functional capacity (“RFC”) to perform his
past relevant work; and (5) if not, whether, in light of his age, education,
and work experience, the claimant can perform other work that exists
in “significant numbers in the national economy.”

Atha v. Comm’r, Soc. Sec. Admin., 616 F. App’x 931, 933 (11th Cir. 2015) (citing 20
C.F.R. §§ 416.920(a)(4), (c)-(g), 416.960(c)(2); Winschel v. Comm’r of Soc. Sec., 631

medium exertional level. Tr. 56-57. Using the skill level definitions for specific vocational
preparation (“SVP”) time in 20 C.F.R. §§ 404.1568 and 416.968, skilled work corresponds to
an SVP of 5-9, and semi-skilled work corresponds to an SVP of 3-4. SSR 00–4p, 2000 WL
1898704 at *3. The tile finisher position has an SVP of 5, the handy man position an SVP
of 7 and the carpet cutter/fork lift operator position an SVP of 3-4. Tr. 56-57.

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F.3d 1176, 1178 (11th Cir. 2011)). The claimant bears the burden of persuasion
through step four; and, at step five, the burden shifts to the Commissioner. Id.;

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) (internal citations omitted); 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).
The Eleventh Circuit recently has restated that “[i]n determining whether
substantial evidence supports a decision, we give great deference to the ALJ’s fact
findings.” Hunter v. Soc. Sec. Admin., Comm’r, 808 F.3d 818, 822 (11th Cir. 2015)
(citing Black Diamond Coal Min. Co. v. Dir., OWCP, 95 F.3d 1079, 1082 (11th Cir.
1996)). 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

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(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). It is the
function of the Commissioner, and not the courts, to resolve conflicts in the evidence
and to assess the credibility of the witnesses. Lacina v. Commissioner, 2015 WL
1453364, at *2 (11th Cir. 2015) (citing Grant v. Richardson, 445 F.2d 656 (5th
Cir.1971)).
IV.

Discussion

a. Whether the RFC is supported by substantial evidence
Plaintiff first argues that the ALJ’s RFC determination is erroneous because
the ALJ improperly “rejected” the opinions of Plaintiff’s treating physician, Kenneth
Berdick, M.D., specifically Dr. Berdick’s opinion concerning Plaintiff’s RFC. Doc. 20
at 4. The Commissioner responds that substantial evidence supports the ALJ’s
finding that Plaintiff has the RFC to perform a modified ranged of light work, and
the ALJ properly considered Dr. Berdick’s opinions and declined to give them
controlling weight.

Doc. 21 at 6-8.

Having reviewed the record and controlling

authority, the Court finds substantial evidence supports the ALJ’s determination.
The RFC is the most that a claimant can do despite his limitations. See 20
C.F.R. § 404.1545(a).

At the hearing level, the ALJ has the responsibility of

assessing a claimant’s RFC. See 20 C.F.R. § 404.1546(c). The ALJ is required to

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assess a claimant’s RFC based on all of the relevant evidence in the record, including
any medical history, daily activities, lay evidence and medical source statements. 20
C.F.R. § 404.1545(a). The claimant’s age, education, work experience, and whether
she can return to her past relevant work are considered in determining her RFC,

Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997) (citing 20 C.F.R. §
404.1520(f)), and the RFC assessment is based upon all relevant evidence of a
claimant’s 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)).
When determining how much weight to afford a medical opinion, the ALJ
considers whether there is an examining or treatment relationship and the nature
and extent thereof; whether the source offers relevant medical evidence to support
the opinion; consistency with the record as a whole; the specialization of the source,
if any; and any other factors that tend to support or contradict the opinion. 20 C.F.R.
§ 404.1527(c)(1)-(6). Under the regulations, opinions of treating sources usually are
given more weight because treating physicians are the most likely to be able to offer
detailed opinions of the claimant’s impairments as they progressed over time and
“may bring a unique perspective to the medical evidence that cannot be obtained from
the objective medical findings alone or from reports of individual examinations . . . .”
20 C.F.R. § 404.1527(c)(2). Medical source opinions may be discounted, however,
when the opinion is not well-supported by medically acceptable clinical and
laboratory diagnostic techniques or if the opinion is inconsistent with the record as a
whole. SSR 96-2p; Crawford v. Comm’r, 363 F.3d 1155, 1159-60 (11th Cir. 2004).

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Accordingly, “[a]n ALJ must give a treating physician’s opinion substantial weight,
unless good cause is shown.” Castle v. Colvin, 557 F. App’x 849, 854 (11th Cir. 2014)
(citing Phillips, 357 F.3d at 1240); Lewis, 125 F.3d at 1440; Sabo v. Chater, 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 physician’s opinion was conclusory or inconsistent
with the doctor’s own medical records.’”

Winschel, 631 F.3d at 1179 (quoting

Phillips, 357 F.3d at 1241). Findings of fact made by state agency medical and
psychological consultants as to the nature and severity of a claimant’s impairments
must be treated as expert opinion evidence of nonexamining sources by the ALJ, but
the ultimate opinions as to whether a claimant is disabled, the severity of a claimant’s
impairments, the claimant’s RFC and the application of vocational factors are
exclusively reserved to the Commissioner. SSR 96-6p; 20 C.F.R. § 404.1527(d)(1)(2). Unless a treating source’s opinion is given controlling weight, the ALJ must
explain the weight given to the opinions of other consultants, doctors or medical
specialists. 20 C.F.R. § 404.1527(e)(2)(ii); Vuxta v. Comm’r of Soc. Sec., 194 F. App’x
874, 877 (11th Cir. 2006).
The opinions at issue were given by Plaintiff’s primary care physician, Kenneth
Berdick, M.D., on August 9, 2011 and November 12, 2013. Tr. 270, 725-26. The
August 2011 opinion was a one-page two-question supplemental mental impairment
questionnaire in which Dr. Berdick checked “no” in answer to the question whether
Plaintiff suffers from a mental impairment that significantly interferes with daily

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functioning. Tr. 270. With respect to this opinion, the ALJ accorded the opinion
little weight, because Dr. Berdick did not provide any explanation for his opinion,
thus it was not supported. Tr. 21. In addition, the ALJ noted that Dr. Berdick is
Plaintiff’s primary care practitioner, and giving an opinion on Plaintiff’s mental
impairments is “outside of his expertise.”

Id.

As noted, the ALJ found that

Plaintiff’s anxiety disorder was a severe impairment at step two of the evaluation
process, finding that Plaintiff has moderate difficulties with regard to concentration,
persistence or pace, and cannot pay attention for long and needs help following
written instructions. Tr. 15-16.
When considering Plaintiff’s mental RFC, the ALJ noted that the record shows
Plaintiff was treated conservatively with psychotropic medications prescribed by Dr.
Berdick, and he never sought or received treatment from a specialist. Tr. 20. The
ALJ found that, provided Plaintiff complies with treatment recommendations and
takes medication as prescribed, his mental health condition is not disabling such that
he cannot work. Id. The ALJ further explained that Plaintiff’s limitations have
been accounted for in the RFC, which limits Plaintiff to work in which Plaintiff can
understand, remember and carry out simple instructions, representative positions of
which have SVPs only of 1 or 2. Tr. 17, 23. The Court finds substantial evidence
supports the ALJ’s decision concerning Plaintiff’s mental RFC, and he adequately
explained the reasons for discounting Dr. Berdick’s opinion concerning Plaintiff’s
mental impairment, and he had good cause for doing so. Winschel, 631 F.3d at 1179.

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The second opinion at issue is another “check-the-box” questionnaire dated
November 12, 2013, in which Dr. Berdick opined without any discussion or
explanation about Plaintiff’s physical capacity to work. Tr. 725-26. Dr. Berdick
concluded that in an eight-hour workday, Plaintiff could stand/walk only one hour at
a time and only two hours total, and sit five hours at one time and 7 hours total;
Plaintiff could not do any lifting, pushing or pulling, but he was able to do simple
grasping and fine manipulation; Plaintiff could not use his feet for repetitive
movements as in operating foot controls nor could he at all bend, squat, crawl or
climb; and he could reach above shoulder level.

Id.

The ALJ considered this

opinion and, noting that Dr. Berdick opined that Plaintiff could not perform even
sedentary work, accorded the opinion little weight because it is not supported by or
consistent with either the medical records as a whole or Dr. Berdick’s own treatment
records. Tr. 21. In fact, as the ALJ noted, Dr. Berdick’s treatment records at the
time indicated that Plaintiff was doing very well and ambulating better, and the
objective diagnostic testing results also did not support Dr. Berdick’s opinion. Id.
After reviewing the record, the Court finds substantial evidence supports the
ALJ’s decision to reject Dr. Berdick’s opinion, as there was good cause to do so because
the opinion was inconsistent not only with the record evidence but with the
physician’s own treatment notes within that time frame.

Winschel, 631 F.3d at

1179. Moreover, as noted by the ALJ and discussed in the Commissioner’s brief, the
type of form questionnaire or so-called “checklist” opinion that Dr. Berdick used,
without providing any explanation or context concerning the reasons for his opinion,

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generally is disfavored as it does not provide the ALJ nor the Court with any basis on
which to rely upon the opinion. Tr. 21; Doc. 21 at 9 n.8. See Foster v. Astrue, 410
F. App’x 831, 833 (5th Cir. 2011) (physician’s use of “questionnaire” format typifies
“brief or conclusory” testimony); Mason v. Shalala, 994 F.2d 1058, 1065 (3d Cir. 1993)
(noting “[f]orm reports in which a physician’s obligation is only to check a box or fill
in a blank are weak evidence at best”); Hammersley v. Astrue, No. 5:08-cv-245-Oc10GRJ, 2009 WL 3053707, *6 (M.D. Fla. Sept. 18, 2009) (stating “courts have found
that check-off forms . . . have limited probative value because they are conclusory and
provide little narrative or insight into the reasons behind the conclusions”).
Plaintiff’s medical records, including treatment notes of Dr. Berdick, also
support the ALJ’s decision. In December 2010, Plaintiff sought treatment in the
emergency room complaining of pain in his right big toe after a fall. Tr. 268. An xray revealed a slight fracture of the distal phalanx, and Plaintiff’s foot was placed in
a postop shoe. Id. Following this incident, Plaintiff was treated by Dr. Berdick
primarily with pain injections and medications; however, as noted by the ALJ, many
of the physician’s handwritten treatment notes are for the most part illegible. Tr.
18; see, e.g., Tr. 251-61. See also Tr. 352 (chiropractic notes of Anthony Inglese, with
reports from Plaintiff that Dr. Berdick gave him shots in his lower back); Tr. 497
(orthopedic consultation in which Plaintiff stated he received multiple injections to
his low back region).
The next legible medical record shows that Plaintiff returned to the emergency
room in June 2011, complaining of right knee pain that had been ongoing for a few

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weeks. Tr. 262-63. During that visit, Plaintiff reported he had not followed up with
orthopedics as recommended after his toe fracture and that he was taking medication
for his pain, which he said was controlling it.

Tr. 262.

Plaintiff’s physical

examination showed that he was moving all extremities with no bony deformities, he
was neurologically intact and he was diagnosed with right knee pain/sprain. Tr.
262-63. Although he was scheduled for an x-ray during the visit, because of the wait
time Plaintiff decided instead to take an orthopedic referral and leave. Tr. 262.
From September to October 2011, treatment records show that Plaintiff began
massage therapy, chiropractic treatment and physical therapy to address pain in his
right foot, lower back and both knees following his fall in December 2010.

See

generally, Tr. 284-355. In addition during that time period, Plaintiff had multiple
x-rays and MRIs performed of his lumbar spine, right root and knees.

Id.

In

general, the results of these diagnostic tests were unremarkable, or in the case of the
MRI of his right knee, grossly unremarkable, with some exceptions, showing, for
example, possible bone spurs in his right foot (but negative for fracture) and left knee
(Tr. 329, 349), a tiny tear of the posterior horn of his medial meniscus of his left knee
(Tr. 349), and a possible bone cyst with no fracture and questionable tear versus agerelated change in his right knee (Tr. 346-47).

See also Tr. 498-99 (summary of

diagnostic testing).
As noted by the ALJ, most of Plaintiff’s complaints following his fall concerned
his right knee, which he reported felt unstable and weak. Tr. 18. In October 2011,
an arthroscopy of his right knee was performed.

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Tr. 356.

An examination by

consultative physician Fatemeh Mousavi, M.D., on October 31, 2011, revealed that
Plaintiff appeared to be in “no acute distress;” however, he was using a cane for
balance, his gait was abnormal, he had difficulty getting on and off the examination
table and arising from a chair and he was limping on his left side. Tr. 362. Plaintiff
was unable to squat or walk on heels and toes. Id. The ALJ discussed this opinion,
specifically Dr. Mousavi’s opinion that Plaintiff needed a cane to keep his balance;
and the ALJ accepted the opinion and accounted for Plaintiff’s limitation in his RFC.
Tr. 19.
In February 2012, Plaintiff returned to Dr. Berdick, who noted Plaintiff’s major
complaint was chronic low back pain and degenerative joint disease exacerbated by
his obesity. Tr. 376. On examination, Plaintiff had no joint swelling, a minor paralumbar muscle spasm, tenderness in his sacroiliac and mild restriction to his lumbar
spine flexion. Id. Rotation and extension were normal, and there were no motor,
sensory or reflex abnormalities. Id. In March 2012, Dr. Berdick noted that postarthroscopy Plaintiff was ambulating without an assistive device and had only mild
restriction to his right knee flexion, no joint swelling, erythema or warmth, and no
motor, sensory or reflex abnormalities. Tr. 374. Similarly, Plaintiff’s May, July
and September 2012 examinations by Dr. Berdick showed some sacroiliac tenderness
and mild restriction in movement in Plaintiff’s lumbar spine, but full range of motion
in all other joints; negative straight leg raising bilaterally; and no motor, sensory, or
reflex abnormalities. Tr. 372-73; 568. Dr. Berdick noted in the September visit
that Plaintiff was “relatively stable,” had returned for his bimonthly diazepam refill,

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was receiving Vicodin from pain management, and told the physician that his “only
problem” is that he “needs a job.” Tr. 568.
The ALJ discussed all these and other medical records and concluded:
Overall, the medical records in evidence reflect the claimant underwent
treatment to some degree for his severe impairments. However, the
record lacks the type of clinical and laboratory abnormalities one would
expect to find of a completely disabled individual and the claimant has
not generally received the type of medical treatment one would expect
for a totally disabled individual. Although the claimant has received
various forms of treatment for the allegedly disabling symptoms, which
would normally weigh somewhat in the claimant’s favor, the record also
reveals that the treatment has been generally successful in controlling
those symptoms. The claimant participated in numerous therapeutic
modalities including physical therapy exercises, massage therapy, and
chiropractic therapy. In addition, he underwent pain management
services for his back, knee, and toe pain. Treatment records indicate that
the claimant had improvement in his symptoms and pain relief with
pain injection therapy and prescribed pain medications. He reported
50% or higher overall improvement and improvement with pain
medication (Ex. 15F).
Tr. 19.

The ALJ further discussed that Plaintiff’s pain management records

indicated he was doing well with his regimen; however, Plaintiff was discharged from
pain management at some point for poor compliance and behavior. Moreover, in
March 2013 Plaintiff was noted as displaying narcotic-seeking behavior when he no
longer had access to pain management services. Tr. 19-20, 712. In a visit to the ER
for reasons unrelated to the conditions at issue here, Plaintiff was diagnosed with
“chronic narcotic use” and was noted to be “very upset at the fact that we would not
be prescribing for him additional narcotics.” Tr. 712.
Accordingly, for these reasons, the Court concludes the ALJ’s decision is
supported by substantial evidence, he applied the proper legal standards, and he

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properly discounted Dr. Berdick’s form opinion that was inconsistent with the
physician’s own treatment records.

b. Whether the ALJ’s credibility assessment of Plaintiff is supported by
substantial evidence
Plaintiff next contends that the ALJ erred in drawing an adverse inference
regarding Plaintiff’s credibility based on his receiving unemployment benefits in 2011
and 2012. Tr. 20. The Commissioner asserts that substantial evidence supports
the ALJ’s credibility determination. Doc. 21 at 10.
The regulations require the ALJ to consider specific factors when making
credibility determinations. Those factors include the claimant’s daily activities; the
location, duration, frequency and intensity of pain and other symptoms; precipitating
and aggravating factors; the type, dosage, effectiveness and side effects of any
medications; treatment other than medication; and any other measures to reduce
pain or other symptoms. 20 C.F.R. § 404.1529(c)(3).
SSR 96-7p further explains the process by which a claimant’s credibility must
be evaluated:
In determining the credibility of the individual’s
statements, the adjudicator must consider the entire case
record, including the objective medical evidence, the
individual’s own statements about symptoms, statements
and other information provided by treating or examining
physicians or psychologists and other persons about the
symptoms and how they affect the individual, and any
other relevant evidence in the case record.

Id. A claimant’s statements as to the intensity and persistence of pain or other
symptoms, or how they affect his ability to work, may not be disregarded simply
because they are not supported by objective medical evidence; instead, the ALJ must
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state specific reasons for his credibility determination and the weight given to
subjective statements, which must be supported by the record.

20 C.F.R. §

404.1529(c)(4) (subjective complaints are evaluated in relation to other evidence);
SSR 96-7p; Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002) (“If the ALJ
discredits subjective testimony, he must articulate explicit and adequate reasons for
doing so.”).
Here, the ALJ opined that while he was “persuaded” that Plaintiff’s treatment
history provided a “reasonable basis” for some of the symptoms he alleged and that
Plaintiff’s impairments would impose some restrictions on his ability to work, the
“totality of his statements regarding his limitations are inconsistent with the
objective evidence that does not demonstrate the existence of limitations of such
severity as to preclude [Plaintiff] from performing any work on a continuing basis.”
Tr. 20-21. The ALJ also discussed Plaintiff’s records that he received unemployment
benefits in 2011 and 2012, noting that Florida law requires that when a person draws
unemployment benefits he is certifying he is ready, willing and able to work. Tr. 20.
The ALJ noted this certification is inconsistent with the allegation that Plaintiff is
disabled and unable to work, and thus diminishes his credibility. Id.
The Court finds substantial evidence supports the ALJ’s decision. As noted
by the Commissioner, the ALJ based his credibility decision on several factors, only
one of which was that Plaintiff was receiving unemployment benefits, such as
Plaintiff’s narcotic-seeking behavior, as previously discussed; Plaintiff’s conservative
treatment; Plaintiff’s self-reports as late as September 2012 that he was doing well;

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and the objective clinical findings of x-rays and MRI reports. Doc. 21 at 11-12; Tr.
19-20.

Furthermore, with respect to any alleged error in discounting Plaintiff’s

credibility for receiving unemployment benefits, the authority cited by Plaintiff does
not foreclose the ALJ considering this issue among others when looking at the totality
of the circumstances, as the ALJ did here. 4 The Eleventh Circuit and courts in this
district repeatedly have held that a claimant’s receipt of unemployment benefits
properly is considered when determining whether he is capable of working. See, e.g.,

Ricker v. Comm’r of Soc. Sec., No. 5:13-cv-479-Oc-18PRL, 2014 WL 6610849, at *10
(M.D. Fla. Nov. 21, 2014) (“Courts in the Eleventh Circuit, in addition to several
circuit courts, have found a claimant’s receipt of unemployment benefits inconsistent
with a claim of disability during the same period.”) (citing cases); see also Butler v.

Comm’r of Soc. Sec., No. 3:11-cv-110-J-MCR, 2012 WL 628489, at *7 (M.D. Fla. Feb.
27, 2012) (“Plaintiff’s allegations of total disability are inconsistent with his receipt
of unemployment benefits where he held himself out as being able to work.”). The
ALJ therefore could, and properly did, consider Plaintiff’s receipt of benefits during
the period he claims he was disabled and unable to work as one factor in concluding
that his testimony and reports were less than fully credible.
Therefore, upon a review of the full record, the Court finds that substantial
evidence supports the ALJ’s credibility determination.

“The question is not . . .

Plaintiff's reliance on the memorandum of the Chief Administrative Law Judge for
the Social Security Administration is unavailing. Doc. 20 at 8-9. Although the memo
clarifies that “receipt of unemployment does not preclude the receipt of Social Security
disability benefits,” here as noted, the ALJ did not discredit Plaintiff's subjective complaints
solely due to his receipt of unemployment benefits.
4

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whether the ALJ could have reasonably credited [a claimant’s] testimony, but
whether the ALJ was clearly wrong to discredit it.” Werner v. Comm’r of Soc. Sec.,
421 F. App’x 935, 939 (11th Cir. 2011). “A clearly articulated credibility finding with
supporting evidence in the record will not be disturbed by a reviewing court.” Foote,
67 F.3d at 1562. The Court declines to do so here.

c. Whether the ALJ’ properly relied on VE testimony to determine that
Plaintiff is capable of performing other work that exists in
substantial numbers in the national economy
Plaintiff argues finally that the ALJ committed error in his finding that
Plaintiff is capable of performing other work that exists in substantial numbers in
the national economy, such as automatic grinding machine operator, design
applicator and ampoule sealer. Doc. 20 at 9; Tr. 23. Plaintiff asserts that these
positions exceed the RFC determined by the ALJ. Doc. 20 at 10. For example,
Plaintiff asserts that the automatic grinding machine operator requires a medium
exertional level at a specific vocational preparation (“SVP”) level of 3, semi-skilled
work at a level above Plaintiff’s light exertional level and assessed mental RFC, and
that position and the ampoule sealer position each require reasoning levels of 2. Id.
Plaintiff also argues that the design applicator position requires frequent standing,
which exceeds the ALJ’s RFC of standing four hours in an eight-hour workday and
frequent balancing using an assistive device. Doc. 20 at 10; Tr. 17.
The Commissioner responds that the positions identified by the VE adequately
account for Plaintiff’s RFC limitation of understanding, remembering and carrying
out simple instructions. Doc. 21 at 15; Tr. 17. The Commissioner further argues

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that there is no evidence in the record suggesting that Plaintiff is limited in his ability
to reason, and no physicians have opined that Plaintiff has such limitations. Id.,
citing Tr. 17-21. Furthermore, a reasoning level of 2 is not inconsistent with the
mental RFC here, particularly with respect to the ampoule sealer position, which is
“unskilled.” Id. at 15-16. Moreover, the design applicator position is a sedentary,
unskilled position with a reasoning level of only 1, and the Commissioner correctly
points out that the VE identified that this job exists in substantial numbers in the
national economy. Id. at 16, Tr. 59. Finally, with respect to Plaintiff’s use of a cane,
the Commissioner states that Plaintiff misapprehends the ALJ’s RFC determination,
pointing out that the ALJ did not conclude, as Plaintiff suggests, that Plaintiff
requires an assistive device to stand. Doc. 21 at 16.
With respect to Plaintiff’s mental RFC, there is no error.

All three jobs

identified by the VE have reasoning levels or SVP time of either 1 or 2 5 (Tr. 59-60),
which corresponds to unskilled work.

SSR 00–4p, 2000 WL 1898704 at *3.

Unskilled work required “little or no judgment to do simple duties.”

20 C.F.R.

416.968(a). Clearly, these positions do not exceed Plaintiff’s mental limitation in the
RFC to understand, remember and carry out simple instructions. Tr. 17. The case

Plaintiff erroneously cited in the record to a completely different position, counter
cutter, which has an SVP of 3. Tr. 237, http://www.occupationalinfo.org/69/690685094.html,
Doc. 20 at 10. The error most likely was made because the ALJ erroneously identified the
automatic grinding machine operator position as Dictionary of Occupational Titles (“DOT”)
690.685-094, which is the counter cutter position, instead of 690.685-194.
http://www.occupationalinfo.org/69/690685194.html. Thus, Plaintiff incorrectly notes that
the automatic grinding machine operation position is semi-skilled with an SVP of 3 (Doc. 20
at 10). The VE’s testimony and the DOT description, however, belie this claim, as this
position has an SVP of 2 (Tr. 59), and the VE further testified that her testimony was
consistent with the DOT. Tr. 60; http://www.occupationalinfo.org/69/690685194.html.
5

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of Marchitto v. Astrue cited by Plaintiff is inapposite, as there the position at issue
had a reasoning level of 3, and the claimant in that case was limited to occupations
that would involve only one to two step processes. 2:08-CV-148-FTM-DNF, 2009 WL
804620, at *10 (M.D. Fla. March 27, 2009).
In terms of Plaintiff’s physical ability to perform the jobs identified by the VE,
the automatic grinding machine operator, design applier and ampoule sealer
positions each are classified under the DOT as sedentary jobs. “Sedentary work” is
defined in the regulations at 20 C.F.R. § 404.1567(a) as work which involves:
lifting no more than 10 pounds at a time and occasionally lifting or
carrying articles like docket files, ledgers, and small tools. Although a
sedentary job is defined as one which involves sitting, a certain amount
of walking and standing is often necessary in carrying out job duties.
Jobs are sedentary if walking and standing are required occasionally
and other sedentary criteria are met.

Id.

As noted, the ALJ found that Plaintiff could stand and/or walk for 4 hours in

an 8-hour workday. Tr. 17. He also found that with the use of his cane Plaintiff
can “frequently balance.”

Id.

The ALJ presented the VE with a hypothetical

including these limitations, and the VE identified the above three positions. Tr. 5859.

As noted, the VE also confirmed there were no inconsistencies between her

testimony and the DOT. Tr. 60. Although Plaintiff appears to contend that the
design applicator job requires standing in excess of the RFC determination (Doc. 20
at 10), as noted by the Commissioner, the DOT description of this position identifies
it as a sedentary job that requires sitting “most of the time” and may involve walking
and standing “for brief periods of time.” DOT, 690.686-056, 1991 WL 678634; Doc.
21 at 17 n.13.

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Concerning Plaintiff’s contention that there is some conflict between the ALJ’s
RFC with respect to Plaintiff frequently balancing with the use of his cane and the
positions identified by the VE, which the Court finds there is not because the ALJ
addressed the use of a cane with the VE (Tr. 62), the ALJ confirmed with the VE that
her testimony was consistent with the DOT. Tr. 60. It was not error for the ALJ to
rely on the VE’s opinion, and the Court will not remand this case on that basis. See

Leigh v. Comm'r of Soc. Sec., 496 F. App'x 973, 975 (11th Cir. 2012).

The ALJ fully

complied with his obligation under SSR 00-4p and was not under an independent
obligation to identify and resolve any inconsistency aside from any presented by the
VE. Additionally, there was no apparent inconsistency between the DOT and VE
testimony.
V.

Conclusion

Upon review of the record, the undersigned concludes that the ALJ applied the
proper legal standards, and his determination that Plaintiff is not disabled is
supported by substantial evidence.
ACCORDINGLY, it is hereby
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, and close the file.

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DONE and ORDERED in Fort Myers, Florida on this 24th day of January,
2017.

Copies:
Counsel of record

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