Curlee v. Commissioner of Social Security
Filing
28
OPINION AND ORDER. The decision of the Commissioner is AFFIRMED. The Clerk of the Court is directed to enter judgment consistent with this opinion and, thereafter, to close the file. Signed by Magistrate Judge Douglas N. Frazier on 9/21/2018. (CAS)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JESSE R. CURLEE,
Plaintiff,
v.
Case No: 2:17-cv-164-FtM-DNF
NANCY A. BERRYHILL, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
_____________________________
OPINION AND ORDER
Plaintiff, Jesse R. Curlee, seeks judicial review of the final decision of the Commissioner
of the Social Security Administration (“SSA”) denying his claim for a period of disability,
Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”).
The
Commissioner filed the Transcript of the proceedings (hereinafter referred to as “Tr.” followed by
the appropriate page number), and the parties filed a joint legal memorandum setting forth their
respective positions.
For the reasons set out herein, the decision of the Commissioner is
AFFIRMED pursuant to § 205(g) of the Social Security Act, 42 U.S.C. § 405(g).
I.
Social Security Act Eligibility, Standard of Review, Procedural History, and the
ALJ’s Decision
A. Social Security Act Eligibility
The law defines disability as the inability to do any substantial gainful activity by reason
of any medically determinable physical or mental impairment which can be expected to result in
death or which has lasted or can be expected to last for a continuous period of not less than twelve
months. 42 U.S.C. §§ 416(i), 423(d)(1)(A), 1382(a)(3)(A); 20 C.F.R. §§ 404.1505, 416.905. The
impairment must be severe, making the claimant unable to do his previous work, or any other
substantial gainful activity which exists in the national economy. 42 U.S.C. §§ 423(d)(2),
1382(a)(3); 20 C.F.R. §§ 404.1505-404.1511, 416.905-416.911.
B. Standard of Review
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 and is such relevant evidence
as a reasonable person would accept as adequate support to a conclusion. Even if the evidence
preponderated against the Commissioner’s findings, we must affirm if the decision reached is
supported by substantial evidence.” Crawford v. Comm’r, 363 F.3d 1155, 1158 (11th Cir. 2004)
(citing Lewis v. Callahan, 125 F.3d 1436, 1439 (11th Cir. 1997)); Martin v. Sullivan, 894 F.2d
1520, 1529 (11th Cir. 1990). In conducting this review, this Court may not reweigh the evidence
or substitute its judgment for that of the ALJ, but must consider the evidence as a whole, taking
into account evidence favorable as well as unfavorable to the decision. Martin v. Sullivan, 894
F.2d 1329, 1330 (11th Cir. 2002); Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995). However,
the District Court will reverse the Commissioner’s decision on plenary review if the decision
applied incorrect law, or if the decision fails to provide sufficient reasoning to determine that the
Commissioner properly applied the law. Keeton v. Dep’t of Health & Human Servs., 21 F.3d 1064,
1066 (11th Cir. 1994).
The Court reviews de novo the conclusions of law made by the
Commissioner of Social Security in a disability benefits case. Social Security Act, § 205(g), 42
U.S.C. § 405(g).
The ALJ must follow five steps in evaluating a claim of disability. 20 C.F.R. §§ 404.1520,
416.920. At step one, the claimant must prove that he is not undertaking substantial gainful
employment.
Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001), see 20 C.F.R. §
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404.1520(a)(4)(i). If a claimant is engaging in any substantial gainful activity, he will be found
not disabled. 20 C.F.R. § 404.1520(a)(4)(i).
At step two, the claimant must prove that he is suffering from a severe impairment or
combination of impairments. Doughty, 245 F.3d at 1278, 20 C.F.R. § 1520(a)(4)(ii). If the
claimant’s impairment or combination of impairments does not significantly limit his physical or
mental ability to do basic work activities, the ALJ will find that the impairment is not severe, and
the claimant will be found not disabled. 20 C.F.R. § 1520(c).
At step three, the claimant must prove that his impairment meets or equals one of
impairments listed in 20 C.F.R. Pt. 404, Subpt. P. App. 1; Doughty, 245 F.3d at 1278; 20 C.F.R. §
1520(a)(4)(iii). If he meets this burden, he will be considered disabled without consideration of
age, education and work experience. Doughty, 245 F.3d at 1278.
At step four, if the claimant cannot prove that his impairment meets or equals one of the
impairments listed in Appendix 1, he must prove that his impairment prevents him from
performing his past relevant work. Id. At this step, the ALJ will consider the claimant’s RFC and
compare it with the physical and mental demands of his past relevant work. 20 C.F.R. §
1520(a)(4)(iv), 20 C.F.R. § 1520(f). If the claimant can still perform his past relevant work, then
he will not be found disabled. Id.
At step five, the burden shifts to the Commissioner to prove that the claimant is capable of
performing other work available in the national economy, considering the claimant’s RFC, age,
education, and past work experience. Doughty, 245 F.3d at 1278; 20 C.F.R. § 1520(a)(4)(v). If
the claimant is capable of performing other work, he will be found not disabled. Id. In determining
whether the Commissioner has met this burden, the ALJ must develop a full and fair record
regarding the vocational opportunities available to the claimant. Allen v. Sullivan, 880 F.2d 1200,
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1201 (11th Cir. 1989). There are two ways in which the ALJ may make this determination. The
first is by applying the Medical Vocational Guidelines (“the Grids”), and the second is by the use
of a vocational expert. Phillips v. Barnhart, 357 F.3d 1232, 1239 (11th Cir. 2004). Only after the
Commissioner meets this burden does the burden shift back to the claimant to show that he is not
capable of performing the “other work” as set forth by the Commissioner. Doughty v. Apfel, 245
F.3d 1274, 1278 n.2 (11th Cir. 2001).
C. Procedural History
Plaintiff protectively filed an application for a period of disability and DIB on May 14,
2013. (Tr. 219-20). Plaintiff protectively filed an application for SSI on the same date. (Tr. 22129). In both applications, Plaintiff alleged a disability onset date of March 3, 2011. (Tr. 219-20,
221-29). Plaintiff’s applications were denied initially on July 24, 2013, and upon reconsideration
on October 31, 2013. (Tr. 165-69, 172-76). Plaintiff requested a hearing and, on October 29, 2015,
an administrative hearing was held before Administrative Law Judge William G. Reamon (“the
ALJ”). (Tr. 55-90). On January 8, 2016, the ALJ entered a decision finding that Plaintiff was not
disabled. (Tr. 37-48). Plaintiff filed a request for review which the Appeals Council denied on
February 9, 2017. (Tr. 1-6). Plaintiff initiated this action by filing a Complaint (Doc. 1) on March
23, 2017.
D. Summary of the ALJ’s Decision
At step one of the sequential evaluation, the ALJ found that Plaintiff had not engaged in
substantial gainful activity since March 3, 2011, the alleged onset date. (Tr. 40). At step two, the
ALJ found that Plaintiff had the following severe impairments: lumbar spine stenosis with
multilevel disc protrusions, lumbago, and sacroiliitis. (Tr. 40). At step three, the ALJ found that
Plaintiff did not have an impairment or combination of impairments that meets or medically equals
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the severity of any of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr.
42).
Before proceeding to step four, the ALJ found that Plaintiff had the residual functional
capacity (“RFC”) to
light work as defined in 20 CFR 404.1567(b) and 416.967(b) with the
following limitations: he can frequently climb ramps and stairs, but must
never climb ladders, ropes, or scaffolds. He can frequently balance, but
only occasionally stoop, kneel, crouch, and crawl. Finally, he must avoid
exposure to unprotected heights or dangerous moving machinery.
(Tr. 42). At step four, the ALJ found that Plaintiff is capable of performing his past relevant work
as a crew-truck driver as such work does not require the performance of work-related activities
precluded by the claimant’s RFC. (Tr. 46).
The ALJ continued to step five and made the alternative finding that considering Plaintiff’s
age, education, work experience, and residual functional capacity, there are jobs that exist in
significant numbers in the national economy that Plaintiff can perform. (Tr. 46). Relying on the
testimony of a vocational expert, the ALJ found that Plaintiff could perform such jobs as outside
deliverer, cashier II, and ticket seller. (Tr. 47). The ALJ concluded that Plaintiff had not been
under a disability from March 3, 2011, the alleged onset date, through the date of the decision,
January 8, 2016. (Tr. 48).
II.
Analysis
Plaintiff raises seven issues on appeal: (1) whether the ALJ erred by failing to find that
Plaintiff’s mental impairments were severe; (2) whether the ALJ erred by failing to properly weigh
the opinion of treating physician Dr. Hughes; (3) whether the ALJ erred by relying on the
testimony of the vocational expert regarding job numbers; (4) whether the ALJ erred by failing to
properly evaluate Plaintiff’s capacity for work on a regular and continuing basis; (5) whether the
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ALJ erred by finding that Plaintiff had past relevant work as a crew-truck driver; (6) whether the
ALJ erred by posing a hypothetical question that did not reflect Plaintiff’s ADHD; and (7) whether
the ALJ erred by failing to evaluate the degree to which Plaintiff would be expected to be off-task.
The Court will address each issue in turn.
a) Whether the ALJ erred by failing to find that Plaintiff’s mental impairments were
severe.
Plaintiff argues that the ALJ erred by failing to recognize Plaintiff’s mental impairments
as severe given that consultative examiner, Lori Chang, Psy.D., diagnosed attention deficit
disorder and treating physician Douglas Hughes, D.O. assessed depressive disorder, generalized
anxiety disorder, and ADHD. (Doc. 26 p. 10). Plaintiff notes that Dr. Hughes identified limitations
on Plaintiff’s ability to perform work functions resulting from mental impairments. (Doc. 26 p.
10). Plaintiff contends that the ALJ’s failure to recognize Plaintiff’s mental impairments as severe
led to his failure to include restrictions related to these conditions in the RFC, resulting in a
decision unsupported by substantial evidence. (Doc. 26 p. 13).
In response, Defendant argues that the ALJ found that Plaintiff had some severe
impairments, thus satisfying the requirements of step two. (Doc. 26 p. 15). Further, Defendant
argues that substantial evidence supports the ALJ’s determination that Plaintiff’s mental
impairments were not severe. (Doc. 26 p. 15-18).
At step two, “[a]n impairment is not severe only if the abnormality is so slight and its
effect so minimal that it would clearly not be expected to interfere with the individual's ability to
work, irrespective of age, education or work experience.” McDaniel v. Bowen, 800 F.2d 1026,
1031 (11th Cir. 1986). A severe impairment must bring about at least more than a minimal
reduction in a claimant’s ability to work, and must last continuously for at least twelve months.
See 20 C.F.R. §§ 404.1505(a). This inquiry “acts as a filter” so that insubstantial impairments
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will not be given much weight. Jamison v. Bowen, 814 F.2d 585, 588 (11th Cir. 1987). While the
standard for severity is low, the severity of an impairment “must be measured in terms of its
effect upon ability to work, and not simply in terms of deviation from purely medical standards
of bodily perfection or normality.” McCruter v. Bowen, 791 F.2d 1544, 1547 (11th Cir. 1986).
According to the Eleventh Circuit, “[n]othing requires that the ALJ must identify, at step
two, all of the impairments that should be considered severe,” but only that the ALJ considered
the claimant’s impairments in combination, whether severe or not. Heatly v. Comm’r of Soc. Sec.,
382 F.App’x 823, 825 (11th Cir. 2010). If any impairment or combination of impairments
qualifies as “severe,” step two is satisfied and the claim advances to step three. Gray v. Comm’r
of Soc. Sec., 550 F. App’x 850, 852 (11th Cir. 2013) (citing Jamison v. Bowen, 814 F.2d 585,
588 (11th Cir. 1987)).
In this case, despite not finding that Plaintiff had any severe mental impairments, the ALJ
did find that Plaintiff’s lumbar spine stenosis with multilevel disc protrusions, lumbago, and
sacroiliitis were severe impairments. Thus, the ALJ satisfied the threshold requirement of step
two and committed no error by failing to find that Plaintiff’s mental impairments were severe.
b) Whether the ALJ erred by failing to properly weigh the opinion of treating
physician Dr. Hughes.
Plaintiff argues that the ALJ erred by giving little weigh to the opinion of treating
physician Dr. Hughes. (Doc. 26 p. 18). Plaintiff contends that the ALJ failed to provide good
cause for rejecting Dr. Hughes’ opinion. (Doc. 26 p. 18-22). Specifically, Plaintiff argues that
the ALJ erred by failing to address Plaintiff’s impairment in color vision and Plaintiff’s limitation
on the use of his fingers. (Doc. 26 p. 21). In response, Defendant contends that the ALJ provided
good cause for assigning little weight to Dr. Hughes’ opinion. (Doc. 26 p. 22).
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The record shows that Dr. Hughes completed a Medical Source Statement (“MSS”) on
Plaintiff’s behalf on October 5, 2015. (Tr. 611-12). Dr. Hughes opined that Plaintiff could lift less
than 10 pounds occasionally and frequently; could stand and walk for a total of 15 minutes in an
8-hour workday; could sit for a total of 45 minutes in an 8-hour workday; could climb, stoop, bend,
and crouch less than 1/3 of the workday; could crawl 1/3 of the workday; could balance and kneel
2/3 of the workday; could finger and feel 1/3 of the workday; could reach in all directions 2/3 of
the workday; must for medical reasons take a 30-minute break every 20 minutes; is moderately
impaired in color vision of the left eye; has limitations due to pain; would be expected to lie down
2 hours in the morning and 3 hours in the afternoon; suffers from depression and ADHD; could
concentrate, follow simple instructions, remember simple instructions, and deal with changes in a
routine work setting less than 1/3 of the workday; could understand simple instructions and
respond to supervision, coworkers, and usual work situations 1/3 of the workday; could carry out
simple instructions 2/3 of the workday; would be expected to be off-task 50% to 60% of the time;
and would be expected to miss 3 days of work a month for doctors’ appointments or medical
impairments. (Tr. 611). Dr. Hughes stated that his opinions were provided within a reasonable
degree of medical certainty, Plaintiff’s condition had existed since March 3, 2011, and he had read
the medical records before and after the onset date of disability. (Tr. 612).
In his decision, the ALJ addressed Dr. Hughes’ opinion as follows:
Douglas S. Hughes, D.O., the claimant’s treating physician, completed a
medical source statement on October 5, 2015. Dr. Hughes opined that the
claimant can lift and/or carry less than ten pounds, stand and/or walk for
a total of 15 minutes, and sit for a total of 45 minutes with additional
postural and manipulative restrictions. Dr. Hughes further opined that the
claimant must take a break every 20 minutes for 30 minutes and lie down
for two hours in the morning and 3 hours in the afternoon to relieve pain.
Finally, Dr. Hughes opined that the claimant has mental restrictions and
would be off task 50 to 60 percent of the day and be absent from work
three days a month (18F). The undersigned gives little weight to Dr.
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Hughes opinion as the medical evidence of record, including repeatedly
unremarkable physical examinations completed by Dr. Hughes, do not
demonstrate limitation as restrictive as Dr. Hughes contends (5F/5-6;
9F/5; 10F/2; 14F/7, 10, 11, 14, 22; 16F/2, 7; 17F/4, 9, 11-12).
(Tr. 45).
“The Secretary must specify what weight is given to a treating physician’s opinion and
any reason for giving it no weight, and failure to do so is reversible error.” MacGregor v. Bowen,
786 F.2d 1050, 1053 (11th Cir. 1986) (citation omitted). The Eleventh Circuit has held that
whenever a physician offers a statement reflecting judgments about the nature and severity of a
claimant’s impairments, including symptoms, diagnosis, and prognosis, what the claimant can
still do despite his or her impairments, and the claimant’s physical and mental restrictions, the
statement is an opinion requiring the ALJ to state with particularity the weight given to it and the
reasons therefor. Winschel v. Comm’r of Social Security, 631 F3d 1176, 1178-79 (11th Cir. 2011).
Without such a statement, “it is impossible for a reviewing court to determine whether the
ultimate decision on the merits of the claim is rational and supported by substantial evidence.”
Id. (citing Cowart v. Shweiker, 662 F.2d 731, 735 (11th Cir. 1981)).
The opinions of treating physicians are entitled to substantial or considerable weight
unless good cause is shown to the contrary. Phillips v. Barnhart, 357 F.3d 1232, 1240 (11th Cir.
2004). The Eleventh Circuit has held that good cause exists when the: “(1) treating physician’s
opinion was not bolstered by the evidence; (2) evidence supported a contrary finding; or (3)
treating physician’s opinion was conclusory or inconsistent with the doctor’s own medical
records.” Id. Where an ALJ articulates specific reasons for failing to accord the opinion of a
treating or examining physician controlling weight and those reasons are supported by substantial
evidence, there is no reversible error. Moore v. Barnhart, 405 F.3d 1208, 1212 (11th Cir. 2005).
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In this case, the Court finds that the ALJ provided good cause for according only little
weight to Dr. Hughes’ opinion. Substantial evidence supports the ALJ’s determination that Dr.
Hughes’ treatment notes did not support the physical limitations outlined in his MSS. Dr.
Hughes’ notes included pain and other symptoms as “reported by patient,” and some exam
findings of neck or back pain or spasm. (Tr. 549, 552-53, 556, 559-60). However, his physical
examinations notes consistently showed Plaintiff appeared healthy; was well-developed,
ambulating normally, and in no acute distress; demonstrated a full range of motion in his neck,
normal musculoskeletal strength and tone, and had no contractures, malalignment, or bony
abnormalities. (Tr., 549, 553, 556, 560). The ALJ found Dr. Hughes’ generally normal physical
exam findings were inconsistent with the severe limitations suggested in his MSS.
Further, substantial evidence also supported the ALJ’s determination that the MSS
limitations were not supported by the record as a whole. When Dr. Jacobs assessed “unspecified”
backache in December 2010, he concluded on physical examination that “virtually everything
looks normal on the back” and appeared to suggest symptom magnification by noting “when I
touch his paraspinal muscles he says they hurt, [but] I can feel no masses.” (Tr. 582). Dr. Kennedy
examined Plaintiff in September 2012 and noted Plaintiff was well developed and well nourished,
was in no acute distress; and demonstrated a full range of motion of all joints. (Tr. 428). Dr.
Kennedy reviewed x-rays the next day and described them as “unremarkable.” (Tr. 429, 467).
Dr. Cuberos-Orozco examined Plaintiff in October 2012, and described him as well-developed
and in no acute distress. (Tr. 441). Although she noted some rib tenderness, she also his strength
was normal and his musculoskeletal system was normal. (Tr. 441-42). Dr. Gomeringer examined
Plaintiff in April 2013 and noted Plaintiff’s “complaints seem[ed] to wax and wane throughout
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the visit” and his physical examination revealed no weakness, muscles wasting, or twitching in
the extremities, and full range of motion in all major joints without pain or limitation. (Tr. 446).
In June 2013, Dr. Davis reviewed Plaintiff’s May 2013 MRIs as showing “no significant
pathology whatsoever.” (Tr. 449, 453-54). Dr. Boudreaux examined Plaintiff in June 2013,
shortly after a motor vehicle accident, and noted Plaintiff exhibited some tenderness at that time,
but Plaintiff also demonstrated a full range of musculoskeletal motion, all senses intact, and
normal reflexes, muscle tone, and coordination. (Tr. 459). Dr. Boudreau also noted x-ray results
showed “no acute abnormality.” (Tr. 461). Dr. Rathur interpreted Plaintiff’s June 2013 lumbar
MRI to show a disc protrusion at L5-S1 that only “mildly” displaced the left S1 nerve root
“without compression.” (Tr. 486). Dr. Berdick examined Plaintiff in September 2013, noting
“mild” back tenderness, but also a full range of motion in all planes, other joints moved in a full
range of motion without difficulty, straight leg raising was negative bilaterally, Plaintiff’s gait
was normal, and Plaintiff had no motor, sensory, or reflex abnormalities (Tr. 507). Dr. Berdick
examined Plaintiff again in August 2014, noting some sacroiliac tenderness and mild restriction
in lumber flexion and rotation, but also noting no problems with Plaintiff’s extremities, no joint
swelling or edema, normal gait, negative straight leg raising bilaterally, and no motor, sensory,
or reflex abnormalities. (Tr. 505). Dr. Shah interpreted Plaintiff’s MRI in May 2015 to show only
“shallow” protrusion T5-T6, with no cord compression. Other disc levels [were] unremarkable.”
(Tr. 566).
The Court rejects Plaintiff’s argument that the ALJ erred by failing to address the ALJ’s
failure to explicitly address Dr. Hughes’ finding that Plaintiff had an abnormality of color vision
in the left eye. (Tr. 612). As Defendant notes, nothing in Dr. Hughes’ exam findings identifies
any color vision problems. Similarly, Plaintiff complains that the MSS limiting Plaintiff’s
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fingering to one-third of the work day, based on hand tremor and numbness. (Tr. 611). However,
while Dr. Hughes’ noted Plaintiff’s inclusion of “passive tremor” in his list of problems (Tr. 547,
551, 554), the doctor’s physical exam findings consistently show “no tremor” (Tr. 553, 560).
Moreover, Dr. Hughes’ notes do not indicate any reports by Plaintiff or exam findings by Dr.
Hughes of hand numbness. (Tr. 545-576). While Plaintiff notes, above, that Plaintiff testified at
the October 2015 hearing that he took propanolol for his hand tremors (Tr. 74), Dr. Davis
reported in June 2013 that treatment with propranolol had fully resolved Plaintiff’s tremor (Tr.
480).
c) Whether the ALJ erred by relying on the testimony of the vocational expert
regarding job numbers.
Plaintiff argues that the ALJ erred by relying on the testimony of the vocational expert
because the vocational expert based her testimony concerning jobs numbers on data contained in
Job Browser Pro. (Doc. 26 p. 26-28). The Court finds that any error the ALJ may have committed
by relying on the vocational expert’s testimony at step five is harmless. As will be discussed
below, substantial evidence supports the ALJ’s determination that Plaintiff can return to his past
relevant work and is, thus, not disabled. For this reason, the Court will not address Plaintiff’s
contention that the ALJ erred in his alternative step five finding.
d) Whether the ALJ erred by failing to properly evaluate Plaintiff’s capacity for
work on a regular and continuing basis.
Plaintiff argues that the ALJ erred by neglecting to address Plaintiff’s ability to maintain
a regular work schedule and the RFC lacks any limitations related to work schedule even though
Dr. Hughes opined that Plaintiff would be absent from work either due to doctor appointments
or medical impairments three days a month, for medical reasons would need a 30-minute break
every 20 minutes, and would be expected to rest 2 hours in the morning and 3 hours in the
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afternoon. (Doc. 26 p. 32). In response, Defendant argues that substantial evidence supported
the ALJ’s RFC determination and the ALJ appropriately excluded from the RFC limitations Dr.
Hughes included in his October 2015 MSS. (Doc. 26 p. 33).
As explained at length above, substantial evidence supports the ALJ’s determination that
Dr. Hughes’ opinion was entitled to little weight. Accordingly, the Court finds no error in the
ALJ’s decision not to include Dr. Hughes’ findings concerning Plaintiff’s ability to maintain a
regular work schedule.
e) Whether the ALJ erred by finding that Plaintiff had past relevant work as a
crew-truck driver.
Plaintiff argues that the ALJ erred in determining that Plaintiff had past relevant work as
a crew-truck driver given that no such job appears in the work history reports. (Doc. 26 p. 34).
Plaintiff argues that the past relevant work referred to by the ALJ was performed in 2007-2008
while working for Sports Boats Marine. (Doc. 26 p. 34). Plaintiff argues that his work there was
a composite job requiring the ability to perform medium exertional level activities such as
mechanic maintenance and detailing. (Doc. 26 p. 35).
In response, Defendant argues that the ALJ properly relied upon the vocational expert’s
testimony that Plaintiff had past relevant work as a “truck driver, light” and that he was capable
of performing such work. (Doc. 26 p. 36-37). Defendant argues that Plaintiff testified that his
job consisted solely of driving to transport boats for 10 months and that his position was not a
composite job. (Doc. 26 p. 37).
A plaintiff bears the burden of showing that she can no longer perform her past relevant
work as she actually performed it, or as it is performed in the general economy. Waldrop v.
Comm’r. of Soc. Sec., 379 F. App’x. 948, 953 (11th Cir. 2010) (citing Jackson v. Bowen, 801
F.2d 1291, 1293-94 (11th Cir. 1986). Even though a plaintiff has the burden of showing she can
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no longer perform her past relevant work, the Commissioner has the obligation to develop a full
and fair record. Schnorr v. Bowen, 816 F.2d 578, 581 (11th Cir. 1987) (citations omitted). To
develop a full and fair record, an ALJ must consider all of the duties of that past relevant work
and evaluate a plaintiff’s ability to perform the past relevant work in spite of the impairments.
Levie v. Comm’r of Soc. Sec., 514 F. App’x. 829, 831 (11th Cir. 2013).
In this case, the Court finds no error in the ALJ’s determination that Plaintiff had past
relevant work as a crew-truck driver and that Plaintiff was capable of performing this work. At
the administrative hearing, Plaintiff testified that his job consisted solely of driving to transport
boats for 10 months. When the ALJ asked Plaintiff about the job he had in 2008, Plaintiff replied
that he had tried to go back to detailing boats, but “they had me driving again, transporting boats.”
(Tr. 66). Plaintiff testified that he did this job for 10 months and that as a truck driver he had no
other duties besides driving. (Tr. 67-68). Plaintiff further testified that even if a strap came off a
boat being transported he was told not even to touch the boats. (Tr. 68). When asked by the ALJ
if there was any other physical act to the job besides driving, Plaintiff replied that there wasn’t
and that “[i]t was basically just destination and pull up, and let the marina do their work, and I
would drive home.”
A composite job is “one that has significant elements of two or more occupations and, as
such, has no counterpart in the DOT. Paxton v. Colvin, 2013 WL 1909609, *4 (M.D. Fla. May
8, 2013). Plaintiff’s description of his work as a driver shows that it did not require significant
elements of two or more occupations. Plaintiff’s testimony shows that his work as a truck driver
was a separate job from his work as a detailer. Plaintiff has failed to carry his burden of
demonstrating he could not return to his work as a truck driver.
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f) Whether the ALJ erred by posing a hypothetical question that did not reflect
Plaintiff’s ADHD.
Plaintiff argues that the ALJ erred in posing a hypothetical question to the vocational
expert that did not reflect Plaintiff’s ADHD, even though Dr. Chang and Dr. Hughes identified
limitations imposed by Plaintiff’s ADHD and depression. (Doc. 26 p. 38).
In response,
Defendant argues that the ALJ properly determined that Plaintiff’s ADHD was not a severe
impairment and committed no error by not including additional limitations in the RFC. (Doc. 26
p. 41).
In this case, the Court finds no error in the hypothetical question posed to the vocational
expert. In his decision, the ALJ determined that Plaintiff’s ADHD was not a severe impairment,
noting that his mental conditions imposed no limitation of daily activities and only mild limitations
related to social functioning and concentration, persistence or pace. (Tr. 41). The ALJ explained in
his decision that he gave great weigh to the opinions of the state agency psychological consultant’s
mental assessments and opinions that Plaintiff’s mental impairments were non-severe. (Tr. 45). As
explained above, the ALJ provided good cause for providing little weight to Dr. Hughes’ opinion
concerning Plaintiff’s limitations.
In order for a VE’s testimony to constitute substantial evidence, the ALJ’s hypothetical
question must comprise all of the claimant’s impairments. Jones v. Apfel, 190 F.3d 1224, 1229
(11th Cir. 1999). Plaintiff has failed to demonstrate that the ALJ’s RFC determination and the
hypothetical question reflecting the RFC failed to comprise all of Plaintiff’s impairments.
g) Whether the ALJ erred by failing to evaluate the degree to which Plaintiff would
be expected to be off-task.
Plaintiff argues that the ALJ failed to properly evaluate Plaintiff’s likelihood of being off
task, as Dr. Hughes predicted Plaintiff would be off-task from 50% to 60% of the time. (Doc. 26
p. 42). Plaintiff contends that given Dr. Hughes opinion, it was erroneous for the ALJ to not
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reference Plaintiff’s off-task behavior in the hypothetical question to the vocational expert. (Doc.
26 p. 42). In response, Defendant argues that the ALJ properly gave little weight to Dr. Hughes’
opinion and the ALJ did not err by failing to include Dr. Hughes’ limitation findings in the
hypothetical question. (Doc. 26 p. 44).
In his decision, the ALJ acknowledged that Dr. Hughes checked a box on a form
indicating that Plaintiff would be off task for 50 to 60 percent of the workday, but determined
that such a limitation was unsupported by Dr. Hughes’ treatment notes or the record as a whole.
As explained above, substantial evidence supports the ALJ’s decision to accord little weight to
Dr. Hughes’ opinion. Accordingly, the Court finds no error in the ALJ’s decision to not include
Dr. Hughes’ limitation findings concerning Plaintiff’s ability to stay on task.
III.
Conclusion
The decision of the Commissioner is AFFIRMED. The Clerk of the Court is directed to
enter judgment consistent with this opinion and, thereafter, to close the file.
DONE and ORDERED in Fort Myers, Florida on September 21, 2018.
Copies furnished to:
Counsel of Record
Unrepresented Parties
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