Miller v. Commissioner of Social Security

Filing 25

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 1/25/2018. (KBR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
DAVID MILLER,
Plaintiff,
v.

Case No: 2:16-cv-779-FtM-CM

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
OPINION AND ORDER
Plaintiff David Wayne Miller seeks judicial review of the denial of his claim for
disability and disability insurance benefits (“DIB”) by the Commissioner of the Social
Security Administration (“Commissioner”). The Court has reviewed the record, the
briefs, and the applicable law. For the reasons set forth herein, the decision of the
Commissioner is AFFIRMED. 1
I.

Issues on Appeal 2

Plaintiff raises three issues on appeal: (a) whether the Administrative Law
Judge (“ALJ”) properly assigned weight to the opinion of consulting neurologist,
Eshan Kibria, D.O.; (b) whether substantial evidence supports the ALJ’s assessment

Both parties have consented to the jurisdiction of the United States Magistrate
Judge. Docs. 23, 24.
1

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) (“[A] legal claim or
argument that has not been briefed before the court is deemed abandoned and its merits will
not be addressed.”).
2

of Plaintiff’s residual functional capacity (“RFC”); and (c) whether the ALJ properly
assessed Plaintiff’s credibility.
II.

Summary of the ALJ’s Decision

Plaintiff filed a claim for disability and DIB on November 21, 2011 claiming
disability beginning on January 1, 2011 3 stemming from inability to lift his left arm,
traumatic head injury, severe bulging disc in his neck, bilateral carpal tunnel and
vision impairment.

Tr. 110-121.

Plaintiff’s claim was denied initially and on

reconsideration. Tr. 121, 131, 228. Plaintiff then filed a Request for Hearing by
ALJ on June 6, 2012. Tr. 149-50. On February 23, 2015, ALJ M. Dwight Evans
issued a decision finding Plaintiff not disabled from January 1, 2011 through the date
of the decision. Tr. 51. At step one, the ALJ determined that Plaintiff met the
insured status requirements of the Social Security Act through December 31, 2016,
and had not engaged in substantial gainful activity since January 1, 2011. Tr. 41.
At step two, the ALJ determined that Plaintiff had the following severe impairments:
left shoulder degenerative joint disease and rotator cuff tear, cervical disc herniation
with radiculopathy and cognitive and depressive disorders. Id. At step three, the
ALJ concluded that Plaintiff did not have “an impairment or combination of
impairments that met or medically equaled the severity of one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1.” Tr. 42. The ALJ then
determined that Plaintiff had the RFC to perform light work 4 with the following

Plaintiff originally alleged his disability began July 14, 2009, but later amended the
onset date. Tr. 209-15, 228.
3

4

The regulations define light work as follows:

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limitations:
[Plaintiff is limited to] frequent climbing of ramps and stairs and
balancing, occasional stooping, kneeling, crouching, and crawling, and
no climbing of' ladders, ropes, or scaffolds. The [Plaintiff] can use the
left upper extremity for frequent reaching at or above shoulder level and
occasional overhead reaching. The [Plaintiff] can engage in unlimited
handling, fingering, and feeling. The [Plaintiff] can understand,
remember, and carry out simple instructions and can occasionally
interact with co-workers, supervisors, and the public. The [Plaintiff]
can concentrate and persist with regard to simple instructions, in twohour segments, and can adapt to gradual changes in the work setting.
The [Plaintiff] can meet average production demands.
Tr. 44. Next, the ALJ found that Plaintiff was unable to perform any past relevant
work. Tr. 50. Considering Plaintiff’s age, education, work experience and RFC, the
ALJ determined there are jobs that exist in significant numbers in the national
economy that Plaintiff can perform and therefore concluded he was not disabled. Tr.
50-51.
III.

Standard of Review

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)

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), 416.967(b).

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(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). 5 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).
The Eleventh Circuit 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) (citation
omitted). Where the Commissioner’s decision is supported by substantial evidence,
the district court will affirm, even if the reviewer would have reached a contrary
result as finder of fact or found 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); 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). The Court

After the ALJ issued the decision, certain Social Security rulings and regulations
were amended, such as the regulations concerning the evaluation of medical opinions and
evaluation of mental impairments. See e.g., 20 C.F.R. §§ 404.1520a, 404.1520c and 404.1527
(effective March 27, 2017); SSR 16-3p, 2016 WL 1119029 (March 16, 2016). The Court will
apply rules and regulations in effect at the time of the ALJ’s decision. Green v. Soc. Sec.
Admin., Comm’r, — F. App’x —, 2017 WL 3187048, at *4 (11th Cir. July 27, 2017) (declining
to apply SSR 16-3p retroactively to the ALJ’s decision); Bowen v. Georgetown Univ. Hosp.,
488 U.S. 204, 208 (1988); 20 C.F.R. § 404.1527 (effective March 27, 2017) (“For claims filed .
. . before March 27, 2017, the rules in this section apply.”).
5

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reviews the Commissioner’s conclusions of law under a de novo standard of review.

Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1260 (11th Cir. 2007) (citing
Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)).
IV.

Discussion

a. Weight given to the opinion of consulting neurologist, Dr. Kibria
Plaintiff first argues that the ALJ erred in assigning little or partial weight to
portions of the opinion of consulting neurologist Dr. Kibria. Doc. 17 at 7-10. The
Commissioner responds that the ALJ was not required to assign any specific weight
to Dr. Kibria’s opinion because Dr. Kibria was a one-time examiner and not a treating
source. Doc. 21 at 4-9.
Dr. Kibria performed an independent neurological evaluation of Plaintiff on
September 16, 2014. Tr. 1216. In his report, Dr. Kibria stated in pertinent part
that Plaintiff was able to lift up to twenty pounds occasionally, carry up to ten pounds
occasionally, sit for four hours without interruption, stand for one hour without
interruption, walk for one hour without interruption, sit for four hours total in a work
day, walk for two hours total in a work day and stand for two hours in a work day.
Tr. 1219-20. Dr. Kibria further opined that Plaintiff was able to use his left and
right feet for the operation of foot controls frequently; reach overhead with both arms
frequently; reach, handle, finger, feel, push and pull with his right hand frequently;
and reach, handle, finger, feel, push and pull with his left hand occasionally. Tr.
1221.
The ALJ stated that he gave partial weight to Dr. Kibria’s opinion as to
Plaintiff’s ability to lift and carry because there was no support in the record for Dr.
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Kibria’s determination that Plaintiff was able to lift a different amount of weight than
he could carry. 6

Id.

The ALJ accorded little weight to Dr. Kibria’s opinions

concerning Plaintiff’s ability to sit, stand, walk, and use foot controls because it was
inconsistent with the physician’s contemporaneous evaluation of Plaintiff, which
indicated that Plaintiff had “normal gait and station and full motor strength in the
lower extremities.” Tr. 48, 1217. As to Dr. Kibria’s opinion about Plaintiff’s ability
to use his hands and reach overhead, the ALJ actually imposed greater limitations
than those recommended by Dr. Kibria because he found that Dr. Kibria “did not
adequately account for the effect of claimant’s left shoulder impairment on his ability
for overhead reaching.”

Tr. 48.

Finally, the ALJ accorded little weight to Dr.

Kibria’s opinion about Plaintiff’s environmental limitations, because the ALJ found
that the record contained no evidence of pulmonary impairments or headaches that
would support such limitations. Tr. 48.
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

The Court notes that although the ALJ assigned partial weight to Dr. Kibria’s
opinion that Plaintiff can lift 20 pounds occasionally and carry 10 pounds occasionally,
ultimately the ALJ’s RFC stated that Plaintiff was able to perform light work, which includes
“lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing
up to 10 pounds.” 20 C.F.R. §§ 404.1567(b), 416.967(b) (emphasis added). The ALJ’s
opinion provides no explanation for this discrepancy. See Tr. 39-51. Plaintiff, however, did
not challenge this aspect of his RFC. See Doc. 17 at 10-13 (challenging the RFC only as it
relates to Plaintiff’s inflammatory polyarthritis). Accordingly, this issue is waived. See
Access Now, 385 F.3d at 1330.
6

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any other factors that tend to support or contradict the opinion.

20 C.F.R. §

404.1527(c)(1)-(6). 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); Vuxta v. Comm’r of Soc. Sec., 194 F. App’x
874, 877 (11th Cir. 2006).
Dr. Kibria is a one-time consulting examiner whose opinion is entitled to no
particular weight. See 20 C.F.R. § 404.1527(c)(2); see also Denomme v. Comm’r of

Soc. Sec., 518 F. App’x 875, 878 (11th Cir. 2013) (finding that the opinion of a nontreating physician is not entitled to any deference or special consideration).

As

noted by the Commissioner, a one-time examiner such as Dr. Kibria is not a treating
source, and thus there is no longitudinal or treatment relationship between physician
and patient. Doc. 21 at 7 (citing Eyre v. Comm’r, Soc. Sec., 586 F. App’x 521, 523
(11th Cir. 2014). Here, the ALJ carefully considered the various portions of Dr.
Kibria’s opinion when assessing Plaintiff’s RFC, and explained his reasons for
discounting the weight of certain portions of the opinion, when he did so. See Tr. 4748.

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The only inconsistency with respect to Dr. Kibria’s opinion the Court finds in
the ALJ’s opinion is in his discussion of Plaintiff’s environmental limitations. Tr.
48. The ALJ stated the record contained no evidence of impairments that would
justify such limitations, such as “pulmonary impairments or headaches.” Tr. 48.
Although there is no medical evidence in the record that Plaintiff has any pulmonary
impairments, the record does in fact contain evidence that Plaintiff suffers from
headaches and/or migraines. See, e.g., Tr. 325, 332, 356, 358, 453, 747, 1216. But
Dr. Kibria’s report notes Plaintiff’s headaches only “occur occasionally” and shows no
connection to environmental factors. Tr. 1216. Moreover, out of eight records cited
by Plaintiff discussing his migraines, five are records from before the alleged onset
date. See Tr. 325, 332, 356, 358, 507. Of the remaining three citations, one is the
report of Dr. Kibria himself. Tr. 1216. Another is the opinion of a consultative
examiner who notes “migraines” under Axis III, but makes no mention of the
frequency or severity of Plaintiff’s migraines.

Tr. 453.

The last is an undated

record that notes “migraines,” but offers no insight into the frequency or severity of
migraines.

Tr. 747.

As a result, although the ALJ may have been incorrect in

stating that there was no evidence of headaches in the record, this error was
harmless, as the records do not show Plaintiff suffered from more than occasional
migraines or that Plaintiff had any further limitations stemming from his migraines,
including environmental limitations. Tr. 48; see Wind v. Barnhart, 133 F. App’x 684,
690 (11th Cir. 2005) (finding that mere diagnosis of an impairment alone is not
sufficient, and plaintiff has the burden to show the effect of an impairment on his

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ability to work); Hunter v. Comm’r of Soc. Sec., 609 F. App’x 555, 558 (11th Cir. 2015)
(finding error harmless if it does not affect the judge’s ultimate determination).
Thus, the ALJ did not err in excluding environmental limitations for migraines
because Plaintiff provided no support for such limitations.

See Tr. 453, 747.

Moreover, the Court finds no error in the ALJ’s decision to accord limited or partial
weight to the other portions of Dr. Kibria’s opinion discussed above.

b. Plaintiff’s RFC
Plaintiff next argues that the ALJ’s RFC assessment was not supported by
substantial evidence because it did not account for Plaintiff’s inflammatory
polyarthropathy. Doc. 17 at 10-13. The Commissioner responds that Plaintiff did
not carry his burden to prove that his inflammatory polyarthropathy imposed any
additional limitations on his ability to work. Doc. 21 at 9-12. Within his argument,
Plaintiff makes several sub-arguments: (1) whether the ALJ properly included
limitations arising from plaintiff’s inflammatory polyarthropathy in Plaintiff’s RFC;
(2) whether the ALJ properly considered the compounding effects of Plaintiff’s obesity
on his pain symptoms and limitations; and (3) whether the ALJ posed a proper
hypothetical to the vocational expert (“VE”).
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
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

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C.F.R. § 404.1545(a). The claimant’s age, education, work experience, and whether
he can return to his past relevant work are considered in determining his 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)).

i. Limitations in Plaintiff’s RFC
Plaintiff first alleges that the ALJ erred by not including limitations for
plaintiff’s inflammatory polyarthropathy in Plaintiff’s RFC. Doc. 17 at 11-12. To
the contrary, as discussed below, the ALJ considered Plaintiff’s inflammatory
polyarthropathy and included limitations for it within Plaintiff’s RFC.
As an initial matter, the ALJ determined that Plaintiff’s bilateral hand
polyarthritis was non-severe. Tr. 42. In reaching this conclusion, the ALJ noted
that Plaintiff had exhibited swelling and decreased range of motion in May 2013 (Tr.
739), but by August 2013 medical records indicated that the polyarthritis was not
constant and was relieved with medication (Tr. 478). Tr. 42. A November 2013 xray showed normal findings; 7 and although Plaintiff continued to experience
symptoms through March 2014, a September 2014 consultative examination revealed
normal gross and fine finger dexterity.

Tr. 42, 459, 478, 486-89, 1217.

The

consultative examiner noted Plaintiff alleged flare-ups that occurred 2-3 times per

The Court is unable to verify this particular finding as the pages cited to by the ALJ
are illegible in the record provided to the Court. See Tr. 486-89
7

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week for 1-2 hour intervals. Tr. 1217. This evidence led the ALJ to conclude the
Plaintiff’s bilateral hand polyarthritis was non-severe.

Tr. 42.

Plaintiff did not

challenge this finding of the ALJ, thus it is deemed waived. 8 See generally Doc. 17.
Although the ALJ determined that Plaintiff’s bilateral hand polyarthiritis was
non-severe, he nonetheless considered it – along with the rest of the record – when
discussing Plaintiff’s RFC.

Tr. 44-50.

Specifically, the ALJ noted Dr. Kibria’s

opinions on Plaintiff’s postural limitations, including “no more than occasional
performance of all postural activities except climbing ladders, ropes, or scaffolds,
which [Dr. Kibria] determined that [Plaintiff] can never do,” and determined this
opinion was entitled to great weight as it was consistent with the record, particularly
concerning Plaintiff’s “impairments of the shoulder, cervical spine, and hand.” Tr.
48 (emphasis added), 1222.

Thus, despite the ALJ’s finding that Plaintiff’s

inflammatory polyarthropathy was non-severe, he nonetheless considered its effects,
albeit minimal, on Plaintiff’s ability to perform work and accounted for it in Plaintiff’s
RFC by including postural limitations consistent with Plaintiff’s medical records.

See Tr. 44, 48; 20 C.F.R. § 404.1545(a); Phillips, 357 F.3d at 1238.
Moreover, as conceded by Plaintiff, the ALJ discussed and considered the
opinions of Dr. Kibria concerning Plaintiff’s ability to perform activities with his
hands, including reaching. See Doc. 17 at 12. Specifically, the ALJ noted that “Dr.
Kibria limited the claimant to no more than frequent performance of all activities
with the right hand, and no more than occasional performance of all activities with

8

Access Now, 385 F.3d at 1330.

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the left hand, aside from overhead reaching, which . . . [Plaintiff] can do no more than
frequently.”

Tr. 48.

The ALJ accorded this opinion partial weight, and limited

plaintiff to “us[ing] the left upper extremity for frequent reaching at or above shoulder
level and occasional overhead reaching.” Tr. 44.
Plaintiff further argues that Dr. Kibria “imposed significant restrictions in
Plaintiff’s ability to use his hands, which were rejected by the ALJ,” and states that
this error is harmful because “light work generally requires the use of arms and
hands to grasp, hold, and turn objects.”

Doc. 17 at 12.

The Court already

considered and addressed at length the ALJ’s consideration of Dr. Kibria’s opinions
and found it to be without error. As has been noted by the Eleventh Circuit, “[t]he
mere existence of an impairment does not reveal the extent to which it limits a
claimant’s ability to work, nor does it ‘undermine the ALJ's determination’ regarding
[Plaintiff’s] ability to work.” Robinson v. Astrue, 365 F. App’x 993, 995 (11th Cir.
2010) (citing Moore v. Barnhart, 405 F.3d 1208, 1213 n.6 (11th Cir. 2005)). The ALJ
considered the record as a whole relating to Plaintiff’s inflammatory polyarthropathy
and determined that it imposed no more than minimal limitations in Plaintiff’s ability
to do work. See Tr. 42. By doing so, the ALJ properly exercised his discretion to
weigh conflicting evidence, because “when there is credible evidence on both sides of
an issue it is the Secretary, acting through the ALJ, and not the court, who is charged
with the duty to weigh the evidence and to determine the case accordingly.” Powers

v. Heckler, 738 F.2d 1151, 1152 (11th Cir. 1984) (citing Richardson, 402 U.S. at 389409).

Thus, the Court will not overturn the ALJ’s decision simply because, as

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Plaintiff argues, conflicting medical evidence exists, and the ALJ resolved the
conflicts in the evidence of record. Id.; Lacina v. Comm'r, Soc. Sec. Admin., 606 F.
App’x 520, 525 (11th Cir. 2015) (citing Grant v. Richardson, 445 F.2d 656, 656 (5th
Cir. 1971) (“It is ‘solely the province of the Commissioner’ to resolve conflicts in the
evidence and assess the credibility of witnesses.”).
Plaintiff’s argument relies primarily on the opinions of Dr. Kibria, which the
ALJ discussed at length. Tr. 47-48. To the extent the ALJ did not explicitly discuss
other evidence noted by Plaintiff, “there is no rigid requirement that the ALJ
specifically refer to every piece of evidence in his decision, so long as the ALJ's
decision, . . . is not a broad rejection which is not enough to enable [the Court] to
conclude that the ALJ considered [Plaintiff’s] medical condition as a whole.” Dyer v.

Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005) (alteration in the original) (citation
and internal quotation marks omitted); Tr. 47-48.

Here, as noted, the ALJ

considered Plaintiff’s medical condition as a whole.

See Tr. 42.

As long as

substantial evidence supports the ALJ’s decision, the Court must affirm, “even if the
proof preponderates against it. [The Court] may not decide facts anew, reweigh the
evidence, or substitute our judgment for that of the Commissioner.” Dyer, 395 F.3d
1210 (alteration in the original) (citations and internal quotation marks omitted).
Accordingly, the Court finds that the ALJ properly considered the opinions of Dr.
Kibria as to Plaintiff’s inflammatory polyarthropathy and appropriately incorporated
those limitations of Dr. Kibria which the ALJ found to be supported by the evidence
of record into Plaintiff’s RFC.

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ii. Plaintiff’s obesity
Plaintiff next mentions, without any elaboration, that the ALJ “failed to
consider the compounding factor Plaintiff’s obesity would have on his pain symptoms
and limitations.” Doc. 17 at 12. Plaintiff “has the burden to present evidence of
h[is] 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 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).
Although there are references within the record to Plaintiff being overweight,
certain medical records actually indicate that Plaintiff is not obese. See Tr. 566
(indicating “Y” in response to Overweight/Obesity, but “N” in response to Obesity –
BMI > 30 kg/m2); see also Tr. 662 (indicating “N” in response to Obesity – BMI > 30
kg/m2). Moreover, if Plaintiff was suffering from obesity, it was Plaintiff’s burden to
present evidence and to identify that evidence to the ALJ. See East, 197 F. App’x at
902. Plaintiff did not do so here. His initial disability application indicates the
following impairments: inability to lift his left arm, traumatic head injury, severe
bulging disc in neck, bilateral carpal tunnel, and a vision impairment.

Tr. 110.

Plaintiff’s reconsideration application lists the same impairments. Tr. 122. At the

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hearing before the ALJ, Plaintiff’s attorney asked Plaintiff his current height and
weight and Plaintiff indicated that his weight fluctuated up to 30 pounds a year, but
no questions were asked about Plaintiff’s alleged obesity, nor did Plaintiff provide
any testimony that would indicate he suffers from obesity. See Tr. 86. As such, the
ALJ did not commit error by excluding discussion of Plaintiff’s alleged obesity from
his RFC assessment.

iii. Hypothetical to the VE
Next Plaintiff argues that the ALJ did not pose a proper hypothetical to the
VE because he did not include limitations for Plaintiff’s obesity or his inflammatory
polyarthropy in his hypothetical to the VE. Doc. 17 at 12-13. “[I]n order for a VE’s
testimony to constitute substantial evidence, the ALJ must pose a hypothetical
question which comprises all of the claimant’s impairments.” Phillips, 357 F.3d at
1240 n.7 (quotation marks omitted); Jones, 190 F.3d at 1229. “The hypothetical need
only include the claimant’s impairments, not each and every symptom of the
claimant.” Ingram, 496 F.3d at 1270 (citation and quotation marks omitted). While
an ALJ’s hypothetical question must take into account all of a claimant’s
impairments, Wilson v. Barnhart, 284 F.3d 1219, 1227 (11th Cir. 2002), the question
need not include impairments that the ALJ has properly determined to be
unsupported by the evidence in the record. Crawford, 363 F.3d at 1161.
Because the Court already has found that substantial evidence supports the
ALJ’s evaluation of the medical opinions relating to Plaintiff’s inflammatory
polyartropathy, and that Plaintiff failed to carry his burden to present evidence to

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the ALJ concerning his alleged obesity, the Court finds that the ALJ’s hypothetical
to the VE was appropriate, and the RFC assessment was supported by substantial
evidence. See McGill v. Comm’r Soc. Sec., 682 F. App’x 738, 741 (11th Cir. Mar. 13,
2017) (citing Crawford, 363 F.3d at 1161 for its holding that the “ALJ was not
required to include findings in the hypothetical that the ALJ had properly rejected as
unsupported.”); Wilson 284 F.3d at 1227; Graham v. Bowen, 790 F.2d 1527, 1576
(11th Cir. 1986).

c. Plaintiff’s credibility
Plaintiff finally argues the ALJ improperly discounted Plaintiff’s testimony
about his subjective symptoms, particularly concerning pain resulting from
migraines. Doc. 17 at 13-14. The Commissioner responds that the ALJ properly
assessed Plaintiff’s subjective symptoms. Doc. 21 at 12-16.
The Eleventh Circuit has long recognized that “credibility determinations are
the province of the ALJ.” Moore, 405 F.3d at 1212 (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 a claimant’s alleged symptoms and
their effect on the claimant’s 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,

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treatment and medications received, and other factors concerning limitations and
restrictions the symptoms cause. See 20 C.F.R. §§ 404.1529(c)(1), 416.929(c)(1).
Here, the Court finds that the ALJ properly considered and evaluated
Plaintiff’s testimony regarding the effects of his alleged symptoms on his activities.
Based on the requirements of 20 C.F.R. § 404.1529, the ALJ considered Plaintiff’s
migraines and other subjective symptoms and the extent to which the symptoms
reasonably can be accepted as consistent with the objective medical and other
evidence. Tr. 44-50. Properly discussing the standard 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.” Tr. 45.
The ALJ explained:
Regarding credibility, the medical evidence does not reflect the degree
of limitation the [Plaintiff] alleges. In terms of physical impairments,
although the evidence indicates that the [Plaintiff] sought treatment for
his shoulder and cervical spine, the diagnostic imaging and physical
examination findings generally reflected minimal limitation; physical
examination findings from October 2009 through November 2012
consistently indicated full range of motion. Diagnostic imaging findings
of the shoulder in January 2011 indicated mild findings, and the
[Plaintiff] was recommended conservative treatment. The gap in
treatment regarding his shoulder also undermines the credibility of the
[Plaintiff’s] allegations; the record indicates no treatment between his
January 2012 surgery and the September 2014 consultative
examination. Furthermore, as of 2009, the [Plaintiff’s] cervical spine
appeared to function well, with little evidence of limitation in later
treatment records; October and December 2011 cervical spine
examinations indicated no muscle spasm.

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In terms of the credibility of the [Plaintiff’s] alleged mental limitations,
the record indicates greater limitation during the period immediately
after the [Plaintiff’s] brain injury. However, from the February 2012
consultative examination onward, the evidence indicates only mild
cognitive impairment; mental status examination findings from
November 2012 through September 2014 indicated normal mood, affect,
and behavior, and in September 2014, the [Plaintiff] exhibited normal
cognitive work-related abilities. Moreover, the evidence does not
indicate that the [Plaintiff] sought any mental health treatment
between January 2010 and the February 2012 consultative
examination, reflecting a significant gap in treatment.
Tr. 47 (internal citations omitted).
“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). “The question is not .
. . 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. Here, the Court finds that the ALJ clearly articulated the reasons
for his credibility findings. See Tr. 47.
When making a credibility determination, the ALJ considers:
(i)

[Plaintiff’s] daily activities;

(ii)

The location, duration, frequency, and intensity of [Plaintiff’s]
pain or other symptoms;

(iii)

Precipitating and aggravating factors;

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(iv)

The type, dosage, effectiveness, and side effects of any medication
[Plaintiff] take[s] or [has] taken to alleviate [his] pain or other
symptoms;

(v)

Treatment, other than medication, [Plaintiff] receive[s] or ha[s]
received for relief of [his] pain or other symptoms;

(vi)

Any measures [Plaintiff] use[s] or ha[s] used to relieve [his] pain
or other symptoms (e.g., lying flat on [his] back, standing for 15
to 20 minutes every hour, sleeping on a board, etc.); and

(vii)

Other factors concerning [Plaintiff’s] functional limitations and
restrictions due to pain or other symptoms.

20 C.F.R. § 404.1529(c)(3). Here, the ALJ properly considered these factors. See
Tr. 42-50.

Although not specifically discussed with respect to his credibility

assessment, the ALJ discussed Plaintiff’s daily activities in determining whether he
had an impairment that met or equaled the severity of a listed impairment in 20
C.F.R. Part 404, Subpart P, Appendix 1, and noted that Plaintiff had only mild
restriction, reporting problems with personal care activities such as dressing,
shaving, and hair care due to his limitations in reaching, but preparing his own
meals, doing laundry, driving, shopping, and handling money in spite of these
difficulties.

Tr. 43, 262, 263-64.

Moreover, the ALJ discussed in detail the

frequency and intensity of Plaintiff’s physical symptoms relating to his shoulder and
cervical spine, noting that the course of treatment had been conservative, “with little
evidence of limitation in later treatment records.” Tr. 47, 350, 413. Concerning
Plaintiff’s mental limitations, the ALJ again discussed the intensity of Plaintiff’s
symptoms, noting that while Plaintiff’s symptoms were more severe immediately
following his brain injury, from February 2012 onward the evidence of record reflects
only mild cognitive impairment. Tr. 47, 726, 731, 734, 740, 745, 749, 1217.
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Focusing specifically on Plaintiff’s migraines, which is the only subjective
symptom that Plaintiff directly discusses in his brief, Plaintiff cites to eight different
pages in the record. See Doc. 17 at 16. As was previously noted, out of the eight
record cites provided by Plaintiff concerning migraines, five are records from before
the alleged onset date. See Tr. 325, 332, 356, 358, 507.

Of the remaining three

citations, only Dr. Kibria’s report makes any indication of the frequency of Plaintiff’s
migraines, noting them as “occasional.” Tr. 1216. The other two records only note
that Plaintiff suffered from migraines, but offer no insight into the frequency or
severity of Plaintiff’s migraines, or to any limitations stemming from Plaintiff’s
migraines. See Tr. 453, 747. Thus, although the ALJ may have been incorrect in
stating that there was no evidence of headaches on the record, this error was
harmless as these records do not show additional limitations. See Hunter, 609 F.
App’x at 558 (finding error harmless if it does not affect the judge’s ultimate
determination); see also Wind, 133 F. App’x at 690 (placing burden on the plaintiff to
show effect of an impairment on his ability to work).
Plaintiff further argues that “the ALJ apparently found Plaintiff credible for
some indeterminate time period after his application was filed, noting that the
evidence on or after February 2012 reportedly shows more mild [cognitive]
impairment.” As such, Plaintiff contends that at a minimum, the ALJ should have
issued a favorable decision for the time period between January 1, 2011 and February
2012. Doc. 17 at 14. But Plaintiff fails to acknowledge that in the same paragraph
the ALJ noted that “the evidence does not indicate that the claimant sought any

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mental health treatment between January 2010 and the February 2012 consultative
examination, reflecting a significant gap in treatment.”

Tr. 47.

The ALJ’s

recognition that “the record indicates greater limitation during the period
immediately after the claimant’s brain injury,” is not a statement that the ALJ found
the Plaintiff to be totally disabled during this period, but rather an observation that
immediately following the Plaintiff’s injury, his symptoms were more pronounced
than they were by the time of the consultative examination. Accordingly, the Court
finds no error in the ALJ’s credibility determination regarding Plaintiff’s subjective
cognitive symptoms. For the above reasons, the Court finds that the ALJ properly
discounted Plaintiff’s subjective complaints and testimony.
V.

Conclusion

Upon review of the record, the Court 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 25th day of January,
2017.

Copies:
Counsel of record

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