Crane v. Commissioner of Social Security

Filing 32

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 2/10/2017. (HJ)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
DOTTIE CRANE,
Plaintiff,
v.

Case No: 2:15-cv-678-FtM-CM

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
ORDER
Plaintiff Dottie Crane seeks judicial review of the denial of her claim for
disability insurance benefits (“DIB”) and supplemental security income (“SSI”) by the
Commissioner of the Social Security Administration (“Commissioner”).
has reviewed the record, the briefs, and the applicable law.

The Court

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 Administrative Law Judge’s (ALJ) assessment of Plaintiff’s Residual
Functional Capacity (“RFC”); (2) whether the ALJ properly did not consider Plaintiff’s
obesity; and (3) whether the ALJ properly evaluated Plaintiff’s tobacco use.

Any issue not raised by Plaintiff on appeal is deemed to be waived. Access Now, Inc. v. Sw.
Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004) (holding that “a legal claim or argument
1

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

II.

Procedural History and Summary of the ALJ’s Decision

On August 3, 2011, Plaintiff filed applications for a period of DIB and SSI
alleging that she became disabled and unable to work on March 5, 2007.
79.

Tr. 65, 163-

Plaintiff alleged disability due to osteoarthritis, chronic asthma, hepatitis C,

bursitis, and growth between sciatic nerve and spine.

Tr. 65.

The applications

initially were denied on October 5, 2011 and upon reconsideration on November 30,
2011.

Tr. 104, 123.

Plaintiff requested and received a hearing before ALJ M.

Dwight Evans on March 14, 2014, during which she was represented by an attorney.
Tr. 27-64.
hearing.

Plaintiff and a vocational expert (“VE”), Jeff Barrett, testified at the

Id.

On July 21, 2014, the ALJ issued a decision finding Plaintiff not disabled from
March 5, 2007 through the date of the decision.

Tr. 11-21. At step one, the ALJ

determined that Plaintiff had not engaged in substantial gainful activity since March
5, 2007.

Tr. 13.

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

severe impairments: degenerative disc disease and asthma.

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, Subpart P, Appendix 1.”

Tr. 15.

The ALJ then

determined that Plaintiff had the RFC to perform the full range of medium work as
defined in 20 CFR 404.1567(c) and 416.967(c). 2 Id.

Further, the ALJ found

The regulations define medium work as work that involves “lifting no more than 50 pounds
at a time with frequent lifting or carrying of objects weighing up to 25 pounds. If someone
can do medium work, [it is determined] that he or she can also do sedentary and light work.”
20 C.F.R. 404.1567(c), 416.967(c).
2

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[Plaintiff] can frequently lift and/or carry up to 25 pounds and
occasionally life and/or up to 50 pounds. In a total 8-hour workday,
[Plaintiff] can sit for 6 hours, stand for 6 hours and walk for 6 hours.
[Plaintiff] is unlimited in the use of [her] hands for pushing and pulling,
including the operation of hand and/or foot controls other than as shown
for life and/or carry. [Plaintiff] can frequently climb ladders, ropes and
scaffold, stoop and crouch and is unlimited in her ability to balance,
kneel and crawl. [Plaintiff] can occasionally be exposed to atmospheric
conditions such as fumes, odors, dust, gases and pollutant irritants but
must always be in a thermostat controlled environment.

Id. Next, the ALJ found that Plaintiff is capable of performing past relevant work
as a laborer.

Tr. 20. Considering Plaintiff’s age, education, work experience, and

RFC for the full range of medium work, the ALJ concluded that Plaintiff can adjust
successfully to other work that exists in significant numbers in the national economy.
Tr. 21.

As a result, the ALJ found that Plaintiff is not disabled.

Id.

Following the ALJ’s decision, Plaintiff filed a request for review by the Appeals
Council, which was denied on October 5, 2015. Tr. 1-4.
2014 decision is the final decision of the Commissioner.
this Court on October 30, 2015.

Doc. 1.

Accordingly, the July 21,
Plaintiff filed an appeal in

Both parties have consented to the

jurisdiction of the United States Magistrate Judge, and this matter is now ripe for
review.

Docs. 15, 17.

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.
423(d)(1)(A); 20 C.F.R. § 404.1505(a).

42 U.S.C. §§ 416(i)(1),

The Commissioner has established a five-step

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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
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.
616 F. App’x at 933; Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987).

Atha,

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

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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 (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. Comm’r, 2015 WL

1453364, at *2 (11th Cir. 2015) (citing Grant v. Richardson, 445 F.2d 656 (5th
Cir.1971)).
IV.

Discussion

a. Whether substantial evidence supports the ALJ’s assessment of
Plaintiff’s RFC
On November 28, 2011, a state agency physician, Violet Acero Stone, M.D.,

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examined Plaintiff and assessed Plaintiff’s RFC.

Tr. 87-89.

Dr. Stone opined that

Plaintiff has four medically determinable impairments: disorders of back-discogenic
and degenerative, asthma, hepatitis, and other and unspecified arthropathies.
86.

Tr.

Dr. Stone also considered Listings 1.04 for spine disorders and 3.03 for asthma.

Id. Dr. Stone concluded that Plaintiff has exertional limitations of lifting and/or
carrying occasionally twenty pounds and frequently ten pounds, standing and/or
walking for a total of six hours in an eight-hour workday, sitting for a total of six
hours in an eight-hour workday, and pushing and/or pulling unlimitedly.

Tr. 87.

Dr. Stone also noted that Plaintiff has postural limitations of frequently climbing
ladders/ropes/scaffolds, stooping, and couching.
Plaintiff is not disabled.

Tr. 88.

Dr. Stone concluded that

Tr. 90.

In assessing Plaintiff’s RFC, although the ALJ considered Dr. Stone’s opinion,
he assigned only some weight to Dr. Stone’s opinion because “Dr. Stone found
[Plaintiff’s] Hepatitis C a severe impairment, and new evidence from [Plaintiff’s]
treating source warrants a less restrictive RFC due to [Plaintiff’s] good physical
examinations and in light of her extensive activities of daily living.”

Tr. 19.

Plaintiff argues that her medical records do not support the ALJ’s assessment
of Plaintiff’s RFC.

Doc. 25 at 11.

Specifically, Plaintiff asserts that the ALJ’s

findings are inconsistent with Dr. Stone’s opinion. 3 Id. at 11, 15. Plaintiff argues
that although Dr. Stone opined that Plaintiff is capable of doing light work, 4 the ALJ

Plaintiff contradicts her own argument by arguing in her reply that “it was error for
the ALJ to rely on Dr. Stone’s remote 2011 opinion.” Doc. 31 at 3.
3

4

The regulations define “light work” as follows:

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determined that Plaintiff can perform the full range of medium work.

Id. at 12.

Plaintiff first claims that her medical records dated after Dr. Stone’s
examination show Plaintiff’s worsening conditions as her pain radiated into right and
left legs, neck, shoulders, and arms.

Id. at 12; Doc. 31 at 2. Plaintiff’s respiratory

problems including breathing difficulties and coughing also continued, for which
Plaintiff received regular treatment.

Doc. 25 at 13. Plaintiff also argues that since

Dr. Stone examined her, she has incurred additional impairments such as insomnia,
headaches, and left shoulder pain.

Id. at 13.

Furthermore, Plaintiff asserts that the ALJ did not specify what daily
activities he relied upon in assigning only some weight to Dr. Stone’s opinion.
14.

Id. at

Plaintiff argues that the ALJ’s reliance on Plaintiff’s “extensive activities of

daily living” does not provide a sufficient explanation for appellate review.

Id. at 15.

As a result, Plaintiff claims that substantial evidence does not support the ALJ’s RFC
finding.

Id.

The Commissioner responds that the ALJ properly considered and assessed
the relevant evidence. Doc. 28 at 4, 6.

The Commissioner argues that the relevant

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).

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medical records do not support Plaintiff’s limited ability to perform only light work.

Id. at 6-9. Furthermore, the Commissioner asserts that the ALJ declined to give full
weight to Dr. Stone’s opinion because Dr. Stone reviewed evidence of record until
November 2011 and other medical records support a less restrict RFC than one
opined by Dr. Stone. Id. at 7; Tr. 19.
The RFC is the most that a claimant can do despite her 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
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). In determining the claimant’s RFC, the ALJ considers not only
the claimant’s age, education, work experience, and whether she can return to her
past relevant work, Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997)(citing 20
C.F.R. § 404.1520(f)), but also all relevant evidence of the claimant’s ability to do work
despite her 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)). That means that 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), 416.945(a)(2); SSR

96-8p; Gibson v. Heckler, 779 F.2d 619, 623 (11th Cir. 1986).

The ALJ is also

required to consider the combined effects of the 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).

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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 the 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)(2)-(6). When determining how much weight to

afford an 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). 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
SSR 96-2p; Crawford v. Comm’r of Soc. Sec.,

inconsistent with the record as a whole.
363 F.3d 1155, 1159-60 (11th Cir. 2004).

The Court finds that the ALJ properly assigned some weight to Dr. Stone’s
opinion because Dr. Stone’s opinion is inconsistent with the record as a whole and is
not well supported by other medical records.
60.

Tr. 19; see Crawford, 363 F.3d at 1159-

Plaintiff’s medical records start on February 23, 2004 when she visited Michigan

Allergy & Asthma Specialists, PC due to her asthma.

Tr. 424, 428.

She reported

that she had one episode of asthma at age of sixteen and was fine until the fall of
2001 when she had a sudden flare up.

Id. Plaintiff noted during this visit that

because of the flare up, she went to the emergency room, but was discharged because

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she felt better.

Id. The notes show that Plaintiff had another flare up in June 2003

for which she went to the emergency room and received a nebulizer treatment.

Id.

Plaintiff reported that she was fine again until January 2004 when she was admitted
to hospital for two days.

Id. She also noted that she went to the emergency room

on February 21, 2004. Tr. 425.
During this visit, Plaintiff complained of having respiratory problems such as
coughing and wheezing, and a spirometric test revealed that Plaintiff’s lung age is 98
years with mild restrictions.

Tr. 423-24.

The examination during this visit

showed, however, that Plaintiff had no musculoskeletal issues.

Tr. 425. The doctor

from this visit prescribed a number of medications to Plaintiff, but Plaintiff admitted
that she smokes and poorly complies with medication.

Tr. 427.

The doctor

emphasized that bronchial asthma could be fatal, and Plaintiff must comply with
medication.

Tr. 427. The doctor also wrote that Plaintiff “must quit smoking.”

Id.

In assessing Plaintiff’s RFC, the ALJ discussed and considered the records from this
visit. Tr. 16-17.
Plaintiff made two visits to the emergency department in the year 2007.

On

April 28, 2007, Plaintiff went to the emergency room due to her lower back pain.

Tr.

282.

She reported that she felt a “pop” in her mid-back when she was going to lift

something, and the pain became worse.

Id. Plaintiff, however, stated that she has

had no paresthesia or lower extremity weakness.

Id. On April 29, 2007, Jeffrey R.

Sonn, M.D., examined Plaintiff’s thoracic spine and opined that Plaintiff’s
intervertebral body heights appear well maintained, although Plaintiff has multilevel

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degenerative disc change with spondylosis.

Tr. 281.

Otherwise, Plaintiff’s

respiratory system was normal: she had no chest pain, shortness of breath, or cough.
Tr. 282.

Plaintiff’s lungs were clear without crackles, wheezes, or rhonchi.

Her chest x-ray was normal.

Tr. 283.

Id.

Plaintiff’s musculoskeletal examination also

was normal as it revealed normal muscle strength and no signs of acute illness.

Id.

Christopher A. Ham, M.D., who examined Plaintiff during this visit, recorded,
“[e]xcept as noted in the review of systems or history of present illness[,] all other
review of systems is negative.”

Tr. 282. Although the ALJ did not explicitly discuss

the medical records from this visit, the records support the ALJ’s RFC finding.

Tr.

17.
On September 4, 2007, Plaintiff returned to the emergency room because of
her asthma exacerbation.
coughing.

Tr. 276.

Tr. 274. Plaintiff complained of shortness breath and

Plaintiff also reported that she had a fainting spell while

coughing that morning.

Tr. 276.

Plaintiff noted that she experienced increased

wheezing with her decreased use of an albuterol inhaler.

Tr. 274. Plaintiff also

noted that she has had increased difficulty breathing, which caused her to go to Cape
Coral Hospital the previous night.

Tr. 275.

Plaintiff stated, however, that she felt

better the previous night after receiving IV steroids and breathing medication at
Cape Coral Hospital. Id.

Plaintiff was discharged, but returned to the emergency

room because of “failure to respond to therapy.”

Tr. 277.

Daniel P. Kennedy, M.D., who examined Plaintiff, recorded that Plaintiff was
coughing then and reportedly had a syncopal episode lasting several seconds.

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Tr.

276. Dr. Kennedy also noted that this had happened in the past with coughing. Id.
Plaintiff’s physical examination revealed that her lungs had diffuse inspiratory and
expiratory wheezes throughout all lung fields.

Id. Dr. Kenney diagnosed Plaintiff

with acute dyspnea, syncope, and asthma exacerbation. Tr. 277.
Despite her complaints of respiratory issues, however, Plaintiff continued to
smoke about one and a half to two packs of cigarettes per day and even was smoking
during the morning of this visit.

Tr. 274, 276.

Plaintiff’s chest x-ray also was

normal, which showed clear lung fields with no cardiac or pulmonary abnormalities.
Tr. 276-77.

Although Plaintiff complained of shortness of breath and cough, she also

reported having no shortness of breath during the same visit. Tr. 274, 276.

The

ALJ considered and discussed the records from this visit in assessing Plaintiff’s RFC.
Tr. 17.
On May 11, 2011, Plaintiff saw Alphonsus Zohlandt, M.D., for asthma.

Tr.

300. Plaintiff stated to Dr. Zohlandt that she has been out of medication for three
months.

Id. Dr. Zohlandt noted that Plaintiff smokes one pack of cigarettes per

day and diagnosed her with nicotine dependence, mild persistent asthma, chronic
obstructive pulmonary, hepatitis C, obesity, and acute sinusitis. Id.

Nonetheless,

Plaintiff’s physical examination during this visit was normal: Plaintiff’s respiratory
excursion was not diminished, her lungs were clear to auscultation, and her
musculoskeletal system was normal.

Tr. 300-301.

Although the ALJ did not

explicitly discuss this opinion, the records from this visit support the ALJ’s RFC
finding.

Tr. 15.

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On July 4, 2011, Plaintiff visited Gulf Coast Medical Center due to her rightsided flank pain radiating into the upper leg.

Tr. 290.

Plaintiff had a lumbar spine

x-ray that showed mild diffuse degenerative changes of the lumbar spine with
minimal retrolisthesis of L4 on L5, straightening, and a prominent osteophyte along
the anterior aspect superior end place of L3.

Id.

The x-ray also revealed

disproportionate degenerative joint disease along the inferior aspect of the right
sacroiliac joint where a prominent osteophyte was seen.

Id.

Dwight Stephen

Phelps, M.D., diagnosed Plaintiff with right sided sciatica and degenerative joint
diseases of pelvis and lumbar spine.

Tr. 288.

Plaintiff, however, reported that her

pain suddenly was resolved while she was in triage.

Tr. 289.

In assessing

Plaintiff’s RFC, the ALJ considered and discussed the medical records from this visit.
Tr. 18.
On September 27, 2011, Dr. Zohlandt examined Plaintiff again. Tr. 349.

He

noted that Plaintiff had a disc x-ray during her previous visit to the emergency room
and was given 10 mg Percocet. 5 Id.

Dr. Zohlandt diagnosed Plaintiff with acute

sinusitis, mild persistent asthma, chronic obstructive pulmonary disease, hepatitis
C, obesity, and nicotine dependence.

Tr. 351.

Nonetheless, he noted that the

review of system was negative, and Plaintiff still smokes one to one and a half pack
of cigarettes per day.

Tr. 349.

Plaintiff’s physical examination during this visit

also was normal: Plaintiff’s respiratory excursion was not diminished, Plaintiff’s

Percocet is an opioid pain medication used to relieve moderate to severe pain.
Drugs.com, http://www.drugs.com/percocet.html (last visited Feb. 9, 2017).
5

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lungs were clear to auscultation, and her musculoskeletal system was normal.
350.

Tr.

Based on his examination, Dr. Zohlandt maintained his diagnoses of her from

the previous visit on May 11, 2011 and recommended Plaintiff to exercise regularly,
lose weight, return to the clinic or go to the emergency if conditions worsen, and
abstain from smoking.

Tr. 301, 352.

On October 12, 2011, Plaintiff saw Dr. Zohlandt for the third time.

Tr. 346.

Dr. Zohlandt noted that Plaintiff has a spur close to her sciatic nerve, which was not
seen before.

Id. Dr. Zohlandt recorded that Plaintiff’s x-ray showed degenerative

joint disease, but Plaintiff never had a MRI or tried treatment for hepatitis C.

Id.

Plaintiff, however, reported having a bad pain attack only once and not having it
again since.

Id. Dr. Zohlandt recommended Plaintiff to see a pain specialist, and

Plaintiff expressed her desire to see a pain specialist and gastroenterologist as well.

Id. As a result, Dr. Zohlandt referred Plaintiff to gastroenterology and a MRI. Tr.
348.

During this visit, the review of Plaintiff’s system still was negative, and

Plaintiff continued to smoke one pack of cigarettes per day.

Id. Plaintiff’s physical

examination during this visit did not show any abnormalities in her lungs or
musculoskeletal system.

Tr. 347.

not change from the previous visit.

Dr. Zohlandt’s recommendations to Plaintiff did
Tr. 348.

On October 21, 2011, Plaintiff’s MRI revealed that although Plaintiff has a
Schmorl’s node formation at the superior end plate of L3, her vertebra otherwise has
normal alignment and marrow signal without fracture or spondylolisthesis.

Tr. 345.

David H. Turkel, M.D., who analyzed Plaintiff’s MRI, opined that Plaintiff has L5-S1

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disc degeneration with mild central left-sided disc protrusion, and minor
degenerative changes/bulging of the L2-3 and L3-4 discs of “doubtful” clinical
significance then.

Id.

Although the ALJ did not discuss Plaintiff’s visits to Dr.

Zohlandt on May 11, 2011 and September 27, 2011, he considered and noted Dr.
Zohlandt’s notes from October 12, 2011 and the October 2011 MRI in assessing
Plaintiff’s RFC.

Tr. 18-19.

During the years 2011 and 2012, Plaintiff regularly sought medical attention.
Tr. 300-73.

Including the visits noted, Plaintiff’s physical examinations during this

time period consistently showed no abnormalities with her respiratory or
musculoskeletal systems on May 11, 2011, September 27, 2011, October 12, 2011,
October 17, 2011, 6 October 27, 2011, 7 November 3, 2011, 8 November 16, 2011,
December 1, 2011, 9 March 20, 2012, 10 September 20, 2012, 11 and September 13,

Plaintiff’s back was nontender without any swelling, and she had no shortness of
breath or cough. Her lung also was clear to auscultation although diminished. Tr. 305-06.
6

Plaintiff had no shortness of breath and cough, and her lung was clear to
auscultation. Tr. 320-21. Her musculoskeletal system was normal, and she had no
localized joint swelling and no localized joint stiffness. Id. Plaintiff’s back also had no
costovertebral angle tenderness. Tr. 321.
7

Plaintiff had no dyspnea and cough, and her back was normal. Tr. 340-41.
Plaintiff’s respiratory excursion was not diminished, and her lung was clear to auscultation.
Tr. 340.
8

Plaintiff had no shortness of breath, chronic cough, or localized joint swelling or
stiffness. Tr. 312. Her lung was clear to auscultation. Id.
9

Plaintiff had no pulmonary symptoms, and her lung was clear to auscultation. Tr.
330-31. Plaintiff’s back had no costovertebral angle tenderness, and her musculoskeletal
system was normal. Tr. 331. Plaintiff also reported that she is not enrolled in smoking
cessation classes. Tr. 329.
10

Plaintiff had no pulmonary symptoms, and her lung was clear to auscultation. Tr.
325-26. Plaintiff’s respiratory excursion was not diminished. Tr. 326. Plaintiff’s back
had no costovertebral angle tenderness. Id.
11

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2013.

Tr. 301, 305-06, 312, 320-21, 325-26, 330-31, 336, 340-41, 347, 350, 360-61;

Doc. 28 at 8-9.
Plaintiff’s medical records during the years 2012 and 2013 also do not support
that Plaintiff could only perform light work.

Tr. 87.

After Dr. Stone examined

Plaintiff on November 28, 2011, Plaintiff visited Gulf Coast Medical Center on May
4 and 31, 2012. Tr. 410-17. On May 4, 2012, Plaintiff sought medical attention due
to her cough, facial pressure, congestion, and runny nose.

Tr. 410.

Plaintiff

complained of having a cough productive of thick brown mucous for two weeks.

Tr.

410. Plaintiff, however, admitted that she smokes one and a half packs of cigarettes
per day, and her cough has improved markedly over the past few days.

Id. She

also stated that although her symptoms are constant and moderate to severe, they
are improving without specifying what is causing the improvement.

Id. Walter

Ray Simmons, D.O., who examined Plaintiff, diagnosed Plaintiff with asthmatic
bronchitis and sinusitis.

Tr. 411.

Dr. Simmons, however, noted that Plaintiff’s neck was supple and nontender,
her back was nontender without any swelling, and her bilateral lung field wheezed
occasionally but had good air flow and no restrictions or respiratory distress.

Tr.

410-411.

Tr.

Plaintiff’s extremities showed no clubbing, cyanosis, or tenderness.

411. Plaintiff’s chest x-ray also was clear.
treatment, which Plaintiff declined.

Id.

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Id. Dr. Simmons offered a nebulizer
Plaintiff was given a prescription of

Zithromax, 12 Medrol Dosepak, 13 and Albuterol inhaler. 14 Id.
and discussed this visit in assessing Plaintiff’s RFC.

The ALJ considered

Tr. 17.

On May 31, 2012, Plaintiff visited the emergency department of Gulf Coast
Medical Center because moving heavy boxes caused her back pain.

Tr. 414.

She

complained of the increasing chronic, predominately right lower back pain radiating
through the gluteus down to the right leg, but denied any sign of weakness.

Id.

Plaintiff stated that she was diagnosed with a bone spur in 2011 and had daily chronic
pain since then.

Id. She also reported occasionally having numbness in her right

toes, which she did not have during this visit.

Id. Thomas Lee Schaar, M.D., who

examined Plaintiff, diagnosed her with acute exacerbation of chronic lower back pain
with radiculopathy down the leg.

Tr. 416.

On the other hand, Plaintiff admitted that she has a prescription for Percocet,
but tries her best not to take it and had not taken it at least over one week.

Tr. 414.

Despite her reluctance to take the medication, Plaintiff stated that she took one
Percocet one and a half hours before going to the hospital, which reduced her pain
down from eight to four on a scale of ten. Id.

Plaintiff reported that her lower back

pain improved significantly with her pain management treatment and Percocet, and

Zithromax
is
an
antibiotic
that
fights
bacteria.
https://www.drugs.com/zithromax.html (last visited Feb. 10, 2017).
12

Drugs.com,

Medrol Dosepak is a steroid that prevents the release of inflammatory substances
in the body. Drugs.com, https://www.drugs.com/mtm/medrol-dosepak.html (last visited
Feb. 10, 2017).
13

Albuterol inhalation is a bronchodilator that relaxes muscles in the airways and
increases air flow to the lungs. Drugs.com, https://www.drugs.com/albuterol.html (last
visited Feb. 10, 2017).
14

- 17 -

she has been pleased with Percocet.

Tr. 416.

As a result, during this visit, Plaintiff

declined treatment and only sought educational information on how she could help
her back without resorting to any medications.

Tr. 414, 416.

Furthermore, Plaintiff during this visit did not have any cough, hemoptysis,
wheezing, shortness of breath, or dyspnea.

Tr. 415.

She also had no other

musculoskeletal issues and denied any cramping pain, stiffness, joints or redness.

Id. Her chest had a symmetrical rise and fall with good tidal volume heard without
any wheezes, rales, or rhonchi.

Id. The examination of her musculoskeletal system

was otherwise normal because she had a full range of motion with 5/5 muscular
strength and intact appropriate bilateral great toes and plantar dorsiflexion, and was
negative for Homans sign. 15

Tr. 416.

Id.

erythema, edema or tenderness.
assessing Plaintiff’s RFC.

She also showed no other joint muscle
The ALJ discussed and noted this visit in

Tr. 18.

On September 5, 2012, Plaintiff again returned to the emergency department
due to sore throat and laryngitis.

Tr. 420.

Plaintiff stated that she had

intermittent fever, dough, sore throat, and laryngitis for three weeks, but denied any
chest pain or shortness of breath.
produces white phlegm.

Id.

Id.

Plaintiff reported having a cough that

During this visit, Plaintiff’s chest x-ray showed

possibly an early right basilar infiltrate.

Tr. 421.

Dr. Schaar who examined

Plaintiff, however, noted that Plaintiff continues to smoke.

Tr. 420.

Plaintiff’s

Homans sign is discomfort behind the knees on forced dorsiflexion of the foot. The
Free Dictionary by Farlex, http://medical-dictionary.thefreedictionary.com/Homan+sign (last
visited Feb. 9, 2017).
15

- 18 -

lungs also were clear to auscultation bilaterally, although they had a minimal amount

Id.

of rhonchi at the right base.
respirations were non-labored.
distress.

Id.

Her chest movement was symmetric, and her

Id. Plaintiff appeared alert, appropriate, and in no

After diagnosing Plaintiff with right lower lobe pneumonia, acute

pharyngitis, laryngitis, tobacco abuse, and chronic obstructive pulmonary disease,
Dr. Schaar gave some antibiotics to Plaintiff and counseled her regarding her need to
cease smoking.
Plaintiff’s RFC.

Tr. 421.

The ALJ fully considered this opinion in assessing

Tr. 17.

After this visit, Plaintiff followed up with Ronald Ramirez, M.D., on September
20, 2012. Tr. 324. Plaintiff reported that she has lived in a house with “Chinese
dry wall” for three years and also is an everyday smoker.

Id. During this visit, she

denied having any fever, chills, headaches, or chest pain.

Id.

Her physical

examination from this visit did not reveal any abnormalities with her lungs or back.
Tr. 326.

Although the ALJ did not explicitly discuss this opinion, the records from

this visit support the ALJ’s RFC finding. Tr. 17-19.
On January 18, 2013, Plaintiff visited Dr. Ramirez because she had a cough
with phlegm and chest congestion for five or six days.

Tr. 363.

Her pulmonary

auscultation revealed abnormalities along with mild chest congestion with mild
wheezing.

Tr. 364. Dr. Ramirez diagnosed Plaintiff with chronic bronchitis with

acute exacerbation and morbid obesity.

Id.

Otherwise, she denied having any

chest pain, shortness of breath, back pain, fever, or chills.
and musculoskeletal system were normal. Tr. 364.

- 19 -

Tr. 363.

Plaintiff’s back

Plaintiff also reported that she

still is an everyday smoker.

Tr. 363.

Dr. Ramirez provided education and

counseling on the proper use of medications and the importance of taking the
medications strictly as directed.

Tr. 365. The ALJ considered and discussed this

opinion in assessing Plaintiff’s RFC.

Tr. 17.

On August 17, 2013, Plaintiff visited Lehigh Regional Medical Center due to
cough and breathing difficulties.

Tr. 370. Plaintiff reported, however, that at their

worst, these symptoms were moderate, although they are alleviated by nothing and
aggravated by exertion.

Id.

Plaintiff also stated that she had similar episodes

chronically in the past and has been to the emergency room one month ago, where
she was diagnosed with pneumonia.
pneumonia again.

Id. Plaintiff reportedly believed that she has

Id. The physical examination revealed that she had a cough

with yellow sputum, shortness of breath, and wheezing.

Tr. 371.

Mary Sullivan,

D.O., who examined Plaintiff, opined that Plaintiff had mild respiratory distress,
moderate shallow respirations, moderate tachypnea, mild and scattered rhonchi, and
moderate wheezing that was heard diffusely.

Tr. 372.

Plaintiff, however, continued to smoke one pack of cigarettes per day.

Tr. 370.

Plaintiff also denied having any fever or flu like symptoms including headaches and
appeared awake, alert, and oriented to person, place, time and situation.
71.

Tr. 370-

Plaintiff had a normal back with a full range of motion and motor strength 5/5

and a normal range of motion in all extremities.

Tr. 371.

At the end of this visit,

Dr. Sullivan noted that Plaintiff’s symptoms markedly improved after treatments,

- 20 -

and discharged her with antibiotics, Zithromax.
opinion in evaluating Plaintiff’s RFC.

Tr. 372.

The ALJ noted this

Tr. 18.

On September 13, 2013, Plaintiff followed up with Dr. Ramirez after being to
the hospital for a COPD 16 exacerbation. Tr. 358. Dr. Ramirez noted, Plaintiff “has
been noncompliant” and has been “not taking medications as prescribed” as well as
“not taking medications this morning”.

Id. Dr. Ramirez recorded that Plaintiff was

in a stable condition and in no acute distress, and Plaintiff denied any chest pain,
shortness of breath, or back pain.

Id. He also indicated that her musculoskeletal

system was normal, and her lungs were clear to auscultation. Tr. 360-61.

Based

on his examination, Dr. Ramirez diagnosed Plaintiff with chronic obstructive
pulmonary disease and nicotine related disorders.

Tr. 361.

He prescribed Advair

Diskus, 17 Ventolin HFA, 18 and Ipratropium, 19 and recommended Plaintiff to begin
regular exercise and a low salt diet.

Tr. 362.

In addition, Dr. Ramirez warned her

of morbidity and mortality that could follow if she does not take medications as
directed.

Tr. 362. The ALJ discussed this visit in evaluating Plaintiff’ RFC.

Tr.

COPD stands for Chronic Obstructive Pulmonary Disease, an umbrella term for
progressive lung diseases. COPD Foundation, http://www.copdfoundation.org/What-isCOPD/Understanding-COPD/What-is-COPD.aspx (last visited Feb. 9, 2017).
16

Advair contains a steroid that prevents the release of inflammatory substances in
the body and a bronchodilator. Drugs.com, https://www.drugs.com/advair.html (last visited
Feb. 10, 2017).
17

Ventolin
HFA
is
albuterol
inhalation.
https://www.drugs.com/mtm/ventolin-hfa.html (last visited Feb. 10, 2017).
18

Drugs.com,

Ipratropium is a bronchodilator that relaxes muscles in the airway and increases
air flow to the lungs. Drugs.com, https://www.drugs.com/mtm/ipratropium-inhalation.html
(last visited Feb. 10, 2017).
19

- 21 -

18.

As noted by the ALJ, no further treatments records regarding Plaintiff’s asthma

after this visit exist. Id.
On December 6, 2013, Plaintiff saw Vellmir A. Micovic, M.D., for her mid and
lower back pain with radicular pain to both legs.

Tr. 398. Plaintiff reported having

pain of level seven and associated tingling in lower and mid-back, tail bone, head,
neck, shoulder, and bilateral arms, joints, and legs.

Id.

She stated that her pain

is aching, constant, shooting, and throbbing, and radiates into the spine, hips, and

Id.

both legs.

Plaintiff noted that although her pain interrupts her sleep and

affects daily activities, her pain medication alleviates her pain and does not give her
side effects.

Id. In fact, Plaintiff’s physical examination showed that Plaintiff was

positive for myalgias, back pain, and arthralgias.

Tr. 399.

Dr. Micovic also noted

that Plaintiff’s right shoulder and lumbar back exhibited a decreased range of motion,
tenderness, pain, and spasm.

Id.

Her cervical and thoracic back, however, was normal.

Id.

Dr. Micovic also

indicated that Plaintiff’s neck had a normal range of motion and was supple.

Id.

Plaintiff had no cyanosis, clubbing, or edema, and her writs, shoulders, hips, knees,
and bilateral ankles had a full range of motion.

Tr. 400.

Her muscle tones were

normal, and Plaintiff had normal gait and 5/5 motor strength.

Id. In addition,

Plaintiff’s chest was normal, and she had normal breathing sound and no respiratory
distress.
breath.

Tr. 399.

Plaintiff was positive for cough, but negative for shortness of

Id. Plaintiff also was oriented to person, place, and time, and appeared

well-developed, well-nourished, and in no distress.

- 22 -

Id. Based on his examination,

Dr. Micovic opined that Plaintiff is stable on the current analgesic regimen without
any significant side effects, and “is able to function well on the current regimen.”
401.

Tr.

At the end, he diagnosed Plaintiff with pain in back and prescribed

hydrocodone 20-acetaminophen and citalopram. 21 Tr. 401.
discussed this visit in evaluating Plaintiff’s RFC.

The ALJ considered and

Tr. 19.

Based on the review of the record and the ALJ’s decision, the Court finds that
the ALJ properly discussed Plaintiff’s alleged impairments “as a whole,” and assigned
only some weight to Dr. Stone’s opinion because as the ALJ noted, Plaintiff’s medical
records as a whole support a less restrictive RFC.

Tr. 16-19; Crawford, 363 F.3d at

1159-60; see Hunter, 609 F. App’x at 558. The Court finds that Dr. Stone’s opinion
is inconsistent with the record as a whole, and other records contrast Dr. Stone’s
opinion.
Although Plaintiff complained of chronic back pain and respiratory issues, her
back pain and respiratory problems were not continuous or consistent.

For example,

Plaintiff complained of having cough and breathing difficulty and was found to have
mild respiratory distress on August 17, 2013.

Tr. 370, 372.

One month later, on

September 13, 2013, Plaintiff was in a stable condition and no acute distress and
denied having any shortness of breath, back pain, or chest pain. Tr. 358.
did Plaintiff exhibit any respiratory distress on December 6, 2013.

Neither

Tr. 399.

Hydrocodone
is
an
opioid
pain
medication.
https://www.drugs.com/hydrocodone.html (last visited Feb. 9, 2017).

Drugs.com,

Citalopram
is
an
antidepressant.
https://www.drugs.com/citalopram.html (last visited Feb. 9, 2017).

Drugs.com,

20

21

- 23 -

In fact, although Plaintiff complained of back pain or respiratory problems, a
number of Plaintiff’s physical examinations showed little or no abnormalities with
her back and lungs.

Tr. 301, 305-06, 312, 320-21, 325-26, 330-31, 336, 340-41, 347,

350, 360-61, 398-401, 410-411, 415-16, 420.

Plaintiff also admitted that receiving

treatments and taking medications significantly improved her conditions.
372, 398, 416.

Tr. 275,

As a result, on December 6, 2013, Dr. Micovic explicitly opined that

Plaintiff is in a stable condition with her current medications and “is able to function
well on the current regimen.”

Tr. 401.

Even if the ALJ committed an error by not discussing some of Plaintiff’s
medical records in evaluating Plaintiff’s RFC and identifying what daily activities in
assigning some weight to Dr. Stone’s opinion, this error was harmless because “it did
not affect the judge’s ultimate decision.” Hunter, 609 F. App’x at 557.

The court

has no rigid requirement “that the [ALJ] specifically refer to every piece of evidence
in his or her decision, so long as the decision is not a broad rejection that leaves the
district court [] with insufficient information to conclude whether the [ALJ]
considered the claimant’s medical condition as a whole.”

Id. (internal quotation

marks omitted).
With regard to Plaintiff’s impairments of headache, insomnia, and left
shoulder pain that the ALJ did not consider, Plaintiff “has the burden to present
evidence of her impairments and their severity.” Jones v. Apfel, 190 F.3d 1224, 1228
(11th Cir. 1999).

The Eleventh Circuit has held that “[a]lthough the ALJ must

consider all the impairments the claimant alleges in determining whether the

- 24 -

claimant is disabled, the ALJ need not scour the medical record searching for other
impairments that might be disabling, either individually or in combination, that have
not been identified by the claimant”

East v. Barnhart, 197 F. App’x 899, 902 (11th

Cir. 2006) (internal citations omitted); Adams v. Comm'r, Soc. Sec. Admin., 586 F.
App'x 531, 534 (11th Cir. 2014).
Here, Plaintiff has presented no legal authority that requires an ALJ to
consider every single symptom alleged by a claimant when Plaintiff’s alleged
impairments did not include headache, insomnia, and left shoulder pain on her
paperwork and during the hearing before the ALJ. 22

Tr. 43, 65, 83.

In fact,

according to Plaintiff’s paperwork, migraine headaches are symptoms of Plaintiff’s
asthma, and insomnia is her medication’s side effect.

Tr. 206-07.

Furthermore, Plaintiff’s medical records clearly show that Plaintiff has had
left shoulder pain for many years, and yet did not allege it as her disability.

On

October 17, 2011, Plaintiff visited the emergency room at Gulf Coast Medical Center
due to her left shoulder pain, and Dr. Simmons, examined her.

Tr. 305.

Dr.

Simmons noted in the history of present illnesses that Plaintiff had this pain for many
years, and her primary doctor diagnosed Plaintiff with bursitis in the past.

Id.

Plaintiff rated her left shoulder pain as eight on a scale of ten, which reportedly got
worse with movement or touch.
had a “workup for this.”

Id. Plaintiff, however, admitted that she had not

Id. Plaintiff also reported that although she has Percocet

During the hearing, Plaintiff testified that her back, breathing, and mental state
stop her from being able to work. Tr. 43.
22

- 25 -

at home, she has not been taking it.

Id. Plaintiff’s physical examination revealed

that although she had tenderness and pain in her left shoulder, she had a full range
of motion and no clubbing or cyanosis.
in her left hand.

Tr. 306.

Plaintiff also had good sensation

Id. Dr. Simmons discharged her after diagnosing her with chronic

left shoulder pain with rheumatoid arthritis.

Id. He noted that Plaintiff with a

sling is in a “good and stable condition” and recommended Plaintiff to follow up within
one day.

Tr. 306-07.

On November 3, 2011, Plaintiff also saw Marcia K. Gilkes, ARNP, due to her
left shoulder pain and chronic back pain.

Tr. 339.

During this visit, Plaintiff’s

musculoskeletal system was normal, and she had no localized joint pain.
41.

Tr. 340-

Ms. Gilkes referred Plaintiff to an orthopedist and prescribed Cortisporin 23 3.5-

1000-1 solution and Amoxicillin24 500 mg caps.

Tr. 342. Otherwise, she made the

same recommendation as Dr. Zohlandt, including exercising regularly, losing weight,
and abstaining from smoking.

Id. The records show that both Dr. Simmons and

Ms. Gilkes, who examined Plaintiff for her left shoulder pain, did not opine any
functional limitations on Plaintiff’s ability to perform basic activities.

Tr. 306, 342.

Lastly, the ALJ considered the records from December 6, 2013 when Plaintiff
complained of pain in both shoulders.

Tr. 19.

During this visit, Dr. Micovic did not

note any specific problem with her left shoulder.

Tr. 398-401. Dr. Micovic found

Cortisporin is a sterile antibacterial and anti-inflammatory solution for otic use.
Drugs.com, https://www.drugs.com/pro/cortisporin-otic-suspension.html (last visited Feb. 9,
2017).
23

Amoxicillin is a penicillin antibiotic that fights
https://www.drugs.com/amoxicillin.html (last visited Feb. 9, 2017).
24

- 26 -

bacteria.

Drugs.com,

that her left shoulder tone was normal and the shoulder had a full range of motion
and full muscular strength.

Tr. 400.

Although the ALJ did not explicitly mention

Plaintiff’s left shoulder pain in his decision, the ALJ’s discussion of these medical
notes from December 6, 2013 implies his consideration of Plaintiff’s left shoulder
pain.

Tr. 19.

Based on the reasons above, the Court finds that the ALJ did not err

in failing to specifically discuss Plaintiff’s headache, insomnia, and left shoulder pain.

Atha, 616 F. App’x at 933; Jones, 190 F.3d at 1228; East, 197 F. App’x at 902.
b. Whether the ALJ probably did not consider Plaintiff’s obesity
Plaintiff argues that although her medical records show her diagnosis of
morbid obesity, the ALJ did not determine whether her obesity significantly limited
her ability to perform basic work activities.

Doc. 25 at 17.

The Commissioner

responds that Plaintiff did not allege obesity as her impairment or prove her weight
was a severe impairment.

Doc. 28 at 10-14.

The Commissioner asserts that

Plaintiff’s treatment notes do not show Plaintiff’s obesity caused work-related
functional limitations or significantly limited her daily activities. Id. at 12-13. The
Commissioner claims at most Plaintiff was advised to lose weight and watch her diet.

Id. at 12. Even then, the Commissioner argues that Plaintiff did not follow these
recommendations. Id.
As noted, contrary to Plaintiff’s assertion that the ALJ has a burden to
determine whether Plaintiff’s obesity affects her ability to perform basic work
activities, it is Plaintiff’s burden to establish that her obesity affected her ability to
perform basic work activities.

Wind v. Barnhart, 133 F. App’x 684, 690 (11th Cir.

- 27 -

2005) (“[A] diagnosis or a mere showing of a ‘deviation from purely medical standards
of bodily perfection or normality’ is insufficient; instead, the claimant must show the
effect of the impairment on her ability to work.”).
Here, Plaintiff did not meet her burden.

First, the ALJ did not need to

consider Plaintiff’s obesity because Plaintiff did not identify obesity as an impairment
on her paperwork and during the hearing. Tr. 36-37, 43, 206-9; see East, 197 F.
App’x at 902 (“Although the ALJ must consider all the impairments the claimant
alleges in determining whether the claimant is disabled, the ALJ need not scour the
medical record searching for other impairments that might be disabling, either
individually or in combination, that have not been identified by the claimant.”).
Plaintiff admits that she did not assert obesity as a disabling impairment on her
initial paperwork.

Doc. 31 at 4.

During the hearing, Plaintiff did not establish or

discuss at all how obesity impaired her functioning.

Tr. 36-37. Instead, Plaintiff

testified that she had lost over twenty pounds, which helped her back and gave her
more energy, because her doctor “told [her] that it could help [her] breathing and [her]
back.”

Tr. 36-37. This testimony contradicts Plaintiff’s expressed belief that she

explained during the hearing, “the excessive weight caused [] her respiratory and
lumbar problems.” Doc. 31 at 4.
Because Plaintiff does not allege obesity as her impairment or clearly establish
how her obesity affects her ability to perform work, this case is distinguishable from

Andrades v. Astrue, which Plaintiff argues is similar to this case. No. 2:09-cv-580FtM-DNF, 2010 WL 4823838, at *8 (M.D. Fla., Nov. 12, 2010); Doc. 31 at 5.

- 28 -

In

Andrades, the court found that the ALJ erred by not considering the plaintiff’s obesity
because the plaintiff was diagnosed with “exogenous obesity,” and had a BMI in
excess of forty, which is “clinically considered the most severe level of obesity.”
WL 4823838, at *8.

2010

Plaintiff here not only was not diagnosed with “exogenous

obesity,” but also testified that she has lost over twenty pounds, which helped her
back problems.

See id.; Tr. 36-37. As a result, similar to Mathis v. Colvin, Plaintiff

neither alleged obesity as a cause of her disability nor testified at the hearing that
obesity impairs her functioning.

No. 8:12-CIV-2072-T-EAK-EAJ, 2013 WL 6498453,

at *4-5 (M.D. Fla. Dec. 11, 2013); Doc. 31 at 4-5.

c. Whether the ALJ properly applied the correct legal standards in
assessing Plaintiff’s tobacco use
The ALJ found that Plaintiff’s allegations of impairments:
are not fully credible to the extent that all work. [Plaintiff] made
relatively infrequent trips to the doctor for her back pain, and resisted
narcotic pain medication even though she stated, and the doctor noted,
had improved her significantly. . . . Moreover, [Plaintiff] has been
instructed for over a decade form her treatment providers to cease
smoking which, if [Plaintiff] did, would no doubt improve her condition
significantly.
Tr. 19.
Here, Plaintiff admits that she is a cigarette smoker.

Doc. 25 at 19.

Plaintiff, however, claims that the ALJ erred for not citing to any evidence supporting
his conclusion that Plaintiff’s cessation of smoking would help improve Plaintiff’s
condition.

Id. Plaintiff argues that the ALJ’s assessment of Plaintiff’s smoking

habit does not comply with SSR 82-59, which provides a criteria for evaluating failure
to follow prescribed treatment.

Docs. 25 at 19, 31 at 6-7.

- 29 -

According to Plaintiff,

SSR 82-59 requires (1) a prescribed treatment to be documented by a treating source
and (2) the treatment to be clearly expected to restore capacity to engage in any
gainful activity.

Doc. 25 at 19; SSR 82-59.

Plaintiff asserts that the doctors’

recommendation to cease from smoking was counseling and an expression of their
concerns, not a prescribed treatment under SSR 82-59. Doc. 25 at 19-21.
The Commissioner argues that the ALJ considered Plaintiff’s medical records
and poor compliance with medications in addition to her failure to cease smoking.
Doc. 28 at 15.

Furthermore, the Commissioner asserts that Plaintiff’s smoking habit

undermines Plaintiff’s credibility.

Id. at 16. In addition, the Commissioner argues

that SSR 82-59 does not apply to this case because the ALJ did not base his decision
on Plaintiff’s failure to follow treatment.

Id.

As noted by the Commissioner, the Court finds that Plaintiff’s reliance on SSR
82-59 is misplaced.

“[T]he procedures mandated in SSR 82-59 only apply to

claimants who would otherwise . . . be found to be under a disability, but who fail
without justifiable cause to follow treatment prescribed by a treating source.”

Mack

v. Comm’r of Soc. Sec., 420 F. App’x 881, 883 (11th Cir. 2011) (internal quotation
marks omitted); SSR 82-59. Under this circumstance, “the Commissioner can deny
benefits on the basis that the claimant has failed to follow prescribed treatment.”

Mack v. Comm’r of Soc. Sec., 420 F. App’x at 883. Accordingly, the court does not
examine whether the ALJ complied with SSR 82-59 if the ALJ’s determination that
the claimant is not disabled is not significantly based on the claimant’s
noncompliance with prescribed treatment.

See id.

- 30 -

Here, the ALJ denied benefits to Plaintiff based on Plaintiff’s medical records,
such as opinions from treating or examining physicians, not based on Plaintiff’s
failure to follow treatment.

Tr. 19-20.

Instead, the ALJ used Plaintiff’s failure to

cease smoking in assessing Plaintiff’s subjective allegations of pain and impairments.
Tr. 19.

As a result, Plaintiff’s argument that the ALJ did not follow SSR 82-59 is

not persuasive here.

See Mack, 420 F. App’x at 883.

When assessing the credibility of subjective complaints, an ALJ considers: (1)
evidence of an underlying medical condition; and (2) objective medical evidence either
(a) confirming the severity of alleged symptoms, or (b) indicating that the medical
condition could be reasonably expected to cause symptoms as severe as alleged. See
20 C.F.R. §§ 404.1529, 416.929; Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir.
2002); Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991).
The Eleventh Circuit has long recognized that “credibility determinations are
the province of the ALJ.” Moore v. Barnhart, 405 F.3d 1208, 1212 (11th Cir. 2005),
citing Wilson v. Heckler, 734 F.2d 513, 517 (11th Cir. 1984). If the objective medical
evidence does not confirm the severity of the alleged symptoms but indicates that the
claimant’s impairments could reasonably be expected to produce some degree of pain
and other symptoms, the ALJ must evaluate the intensity and persistence of the
claimant’s alleged symptoms and their effect on his ability to work. See 20 C.F.R. §§
404.1529(c)(1); Wilson, 284 F.3d at 1225-26; Foote, 67 F.3d at 1561.

The ALJ

compares the claimant’s statements with the objective medical evidence, the
claimant’s daily activities, treatment and medications received, and other factors

- 31 -

concerning limitations and restrictions the symptoms cause.

See 20 C.F.R. §§

404.1529(c)(1), 416.929(c)(1). “If the ALJ discredits subjective testimony, he must
articulate explicit and adequate reasons for doing so.

Failure to articulate the

reasons for discrediting subjective testimony requires, as a matter of law, that the
testimony be accepted as true.”

Wilson, 284 F.3d at 1225 (internal citations

omitted).
Here, based on the requirements of 20 C.F.R. § 404.1529, the ALJ considered
Plaintiff’s symptoms and the extent to which the symptoms can reasonably be
accepted as consistent with the objective medical and other evidence.

Tr. 16.

Properly discussing the standard, Plaintiff’s testimony and the medical evidence, the
ALJ found that Plaintiff’s “medically determinable impairments could reasonably be
expected to cause the alleged symptoms; however, [Plaintiff’]s statements concerning
the intensity, persistence and limiting effects of these symptoms are not entirely
credible for the reasons explained in this decision.” Id. After discussing Plaintiff’s
treatment history, opinion evidence and her daily activities (Tr. 16-19), the ALJ
determined that the record does not support the claimant’s allegations to the extent
that all work is precluded. Tr. 19. As a result, the Court finds that substantial
evidence supports the ALJ’s assessment of Plaintiff’s credibility, and the ALJ used
the correct legal standards. Tr. 16; see 20 C.F.R. §§ 404.1529(c)(1), 416.929(c)(1).

- 32 -

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.
DONE and ORDERED in Fort Myers, Florida on this 10th day of February,
2017.

Copies:
Counsel of record

- 33 -