Goodman v. Commissioner of Social Security

Filing 22

OPINION AND ORDER affirming the decision of the Commissioner. The Clerk of Court is directed to enter judgment accordingly, terminate any pending motions and deadlines, and close the case. Signed by Magistrate Judge Mac R. McCoy on 8/14/2018. (brh)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
CAROLYN GOODMAN,
Plaintiff,
v.

Case No: 2:17-cv-457-FtM-MRM

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
/
OPINION AND ORDER
Before the Court is Plaintiff Carolyn Goodman’s Complaint, filed on August 9, 2017.
(Doc. 1). Plaintiff seeks judicial review of the final decision of the Commissioner of the Social
Security Administration (“SSA”) denying her claim for a period of disability and disability
insurance benefits and supplemental security income. The Commissioner filed the Transcript of
the proceedings (hereinafter referred to as “Tr.” followed by the appropriate page number), and
the parties filed a joint legal memorandum detailing 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, the ALJ Decision, and Standard of Review
A.

Eligibility

The law defines disability as the inability to do any substantial gainful activity by reason
of any medically determinable physical or mental impairment that can be expected to result in
death or that has lasted or can be expected to last for a continuous period of not less than twelve
months. 42 U.S.C. §§ 416(i), 423(d)(1)(A), 1382c(a)(3)(A); 20 C.F.R. §§ 404.1505, 416.905.
The impairment must be severe, making the claimant unable to do her previous work or any

other substantial gainful activity that exists in the national economy. 42 U.S.C. §§ 423(d)(2),
1382c(a)(3); 20 C.F.R. §§ 404.1505 - 404.1511, 416.905 - 416.911. Plaintiff bears the burden of
persuasion through step four, while the burden shifts to the Commissioner at step five. Bowen v.
Yuckert, 482 U.S. 137, 146 n.5 (1987).
B.

Procedural History

On March 27, 2012, Plaintiff filed applications for disability insurance benefits and
supplemental security income. (Tr. at 99, 107, 238-39, 240-50). Plaintiff asserted an onset date
of June 29, 2004, but later amended it to April 10, 2011. (Id. at 41, 62, 238). Plaintiff’s
applications were denied initially on April 23, 2012 and on reconsideration on July 16, 2012.
(Id. at 99, 107,116, 129). A hearing was held before Administrative Law Judge (“ALJ”) James
G. Myles on January 9, 2015. (Id. at 57-89). The ALJ issued an unfavorable decision on
February 20, 2015. (Id. at 41-51). The ALJ found Plaintiff not to be under a disability from
April 10, 2011, through the date of the decision. (Id. at 51).
On July 29, 2016, the Appeals Council denied Plaintiff’s request for review. (Id. at 1-6).
Plaintiff requested and received an extension of time to file a civil action. (Id. at 9, 12). Plaintiff
filed a Complaint in the United States District Court on August 9, 2017. (Doc. 1). This case is
ripe for review. The parties consented to proceed before a United States Magistrate Judge for all
proceedings. (See Doc. 16).
C.

Summary of the ALJ’s Decision

An ALJ must follow a five-step sequential evaluation process to determine if a claimant
has proven that she is disabled. Packer v. Comm’r of Soc. Sec., 542 F. App’x 890, 891 (11th Cir.

2

2013) (citing Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999)). 1 An ALJ must determine
whether the claimant: (1) is performing substantial gainful activity; (2) has a severe impairment;
(3) has a severe impairment that meets or equals an impairment specifically listed in 20 C.F.R.
Part 404, Subpart P, Appendix 1; (4) can perform her past relevant work; and (5) can perform
other work of the sort found in the national economy. Phillips v. Barnhart, 357 F.3d 1232, 123740 (11th Cir. 2004). The claimant has the burden of proof through step four and then the burden
shifts to the Commissioner at step five. Hines-Sharp v. Comm’r of Soc. Sec., 511 F. App’x 913,
915 n.2 (11th Cir. 2013).
The ALJ found that Plaintiff met the insured status requirements through December 31,
2011. (Tr. at 43). At step one of the sequential evaluation, the ALJ found that Plaintiff had not
engaged in substantial gainful activity since April 10, 2011, the alleged amended onset date.
(Id.). At step two, the ALJ determined that Plaintiff suffered from the following severe
impairments: “coronary artery disease, plantar fasciitis, and obesity (20 [C.F.R §§] 404.1520(c)
and 416.920(c)).” (Id.). At step three, the ALJ determined 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 C.F.R. pt. 404, subpt. P, app. 1 (20 C.F.R. §§ 404.1520(d),
404.1525, 404.1526, 416.920(d), 416.925, and 416.926). (Id. at 45).
At step four, the ALJ found the following:
After careful consideration of the entire record, I find that the claimant has the
residual functional capacity to perform light work as defined in 20 [C.F.R. §§]
404.1567(b) and 416.967(b) except that the claimant is limited to standing/walking
for 30 minutes at a time, and after 30 minutes, she should be given the opportunity
to sit and rest for two minutes, or given the option to work seated. Additionally,
1

Unpublished opinions may be cited as persuasive on a particular point. The Court does not
rely on unpublished opinions as precedent. Citation to unpublished opinions on or after January
1, 2007 is expressly permitted under Rule 31.1, Fed. R. App. P. Unpublished opinions may be
cited as persuasive authority pursuant to the Eleventh Circuit Rules. 11th Cir. R. 36-2.

3

the claimant should only occasionally climb ladders, ropes[,] or scaffolds, but she
may frequently perform other postural activities. Moreover, the claimant is further
limited to mostly oral or low-level written instructions, and she should have no
concentrated exposure to pulmonary irritants or hazards.
(Tr. at 45-46).
The ALJ determined that Plaintiff was capable of performing her past relevant work as a
cleaner/housekeeper as Plaintiff actually performed it and as it is generally performed in the
national economy. (Id. at 49-50). Alternatively, the ALJ also considered Plaintiff’s age,
education, work experience, and residual functional capacity, and found that there were jobs that
existed in significant numbers in the national economy that Plaintiff could perform. (Id. at 50).
The ALJ noted that the vocational expert identified the following representative occupations that
Plaintiff was able to perform: (1) assembler arranger, DOT # 739.687-010, light, unskilled, SVP
2; (2) folder, DOT # 369.687-018, unskilled, light, SVP 2; and (3) inspector/hand packager, DOT
# 559.687-074, light, SVP 2. (Id. at 51). 2 The ALJ concluded that Plaintiff was not under a
disability from April 10, 2011, through the date of the decision. (Id.).
D.

Standard of Review

The scope of this Court’s review is limited to determining whether the ALJ applied the
correct legal standard, McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir. 1988), and whether
the findings are supported by substantial evidence, Richardson v. Perales, 402 U.S. 389, 390
(1971). The Commissioner’s findings of fact are conclusive if supported by substantial
evidence. 42 U.S.C. § 405(g). Substantial evidence is more than a scintilla—i.e., the evidence
must do more than merely create a suspicion of the existence of a fact, and must include such
relevant evidence as a reasonable person would accept as adequate to support the conclusion.

2

“DOT” refers to the Dictionary of Occupational Titles.

4

Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995) (citing Walden v. Schweiker, 672 F.2d 835,
838 (11th Cir. 1982); Richardson, 402 U.S. at 401).
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 evidence preponderates against” the Commissioner’s
decision. Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991); Barnes v. Sullivan, 932
F.2d 1356, 1358 (11th Cir. 1991). The district court must view the evidence as a whole, taking
into account evidence favorable as well as unfavorable to the decision. Foote, 67 F.3d at 1560;
accord Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (court must scrutinize the entire
record to determine reasonableness of factual findings).
II.

Analysis
On appeal, Plaintiff raises three issues. As stated by the parties, they are:
(1)

Whether substantial evidence supports the RFC finding.

(2)

Whether substantial evidence supports the ALJ’s evaluation of Plaintiff’s mental
impairments.

(3)

Whether the ALJ’s assessment of Plaintiff’s credibility is supported by substantial
evidence, as required by 20 C.F.R. §§ 404.1529(c), 416.929(c); SSR 96-7p.

(Doc. 21 at 13, 21, 25). The Court addresses these issues in turn.
A.

Whether Substantial Evidence Supports the RFC Finding

Plaintiff argues that the RFC assessment fails to adequately consider Plaintiff’s need for a
handheld assistive device. (Doc. 21 at 14). Further, Plaintiff contends that the ALJ erred by
finding Plaintiff’s hypertension to be a non-severe impairment and, as a consequence, did not
include any limitations related to this impairment in the RFC. (Id. at 15). Plaintiff also argues
that the ALJ should have considered Plaintiff’s hypertension whether or not Plaintiff complied

5

with taking her medications for her hypertension, especially in light of Plaintiff’s occasional
inability to afford her medications. (Id. at 15-16).
The Commissioner argues that the ALJ properly determined Plaintiff’s RFC after
considering the entire record and properly determined that the use of a cane was not medically
necessary. (Id. at 17, 20). The Commissioner also argues that the ALJ correctly noted that
Plaintiff was noncompliant with her medical treatment. (Id. at 18-19). Further, the
Commissioner contends that the record does not show that Plaintiff’s hypertension caused workrelated limitations. (Id.).
1.

Legal Standard

“The residual functional capacity is an assessment, based upon all of the relevant
evidence, of a claimant’s remaining ability to do work despite his impairments.” Lewis v.
Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997). An individual’s RFC is her ability to do
physical and mental work activities on a sustained basis despite limitations secondary to her
established impairments. Delker v. Comm’r of Soc. Sec., 658 F. Supp. 2d 1340, 1364 (M.D. Fla.
2009). In determining a claimant’s RFC, the ALJ must consider all of the relevant evidence of
record. Barrio v. Comm’r of Soc. Sec., 394 F. App’x 635, 637 (11th Cir. 2010). However, the
Eleventh Circuit has consistently held that “the claimant bears the burden of proving that [she] is
disabled, and consequently, [she] is responsible for producing evidence in support of her claim.”
Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003).
The Court addresses the issue concerning the use of an assistive device to ambulate and
then turns to the issues concerning hypertension.

6

2.

Use of an Assistive Device to Ambulate

Plaintiff claims that the RFC assessment fails to adequately consider Plaintiff’s need to
use a handheld assistive device, which in this case is a cane. (Doc. 21 at 14). Plaintiff cites to
instances where she was in the hospital or was present at medical appointments using a cane.
(Id. at 21 (citing Tr. at 945-46, 947-51, 997-98, 1020)). Plaintiff asserts that the “ALJ
acknowledged in the decision that Plaintiff needed to use a cane at various medical
appointments,” and Plaintiff argues that the ALJ erred in failing to include a limitation in the
RFC regarding the use of a cane. (Doc. 21 at 14-15 (citing Tr. at 47, 48)).
The medical records do indicate that Plaintiff occasionally arrived at the hospital or for
medical appointments using a cane, but during these visits, the medical records do not indicate a
prescription for use of a cane, nor does Plaintiff cite to any medical provider who prescribed the
use of a cane for Plaintiff. (See Tr. at 945-46, 947-51, 997-98, 1020). On October 20, 2012,
Plaintiff arrived at the hospital complaining of knee pain and the notes state, “[a]t times,
[Plaintiff] uses her boyfriend’s cane to ambulate.” (Tr. at 945). Upon examination, the medical
provider found tenderness at the knee with increased pain with flexion, but no instability. (Id.).
The medical provider wrapped her knee in an Ace wrap and prescribed anti-inflammatories. (Id.
at 946).
Again, on November 30, 2012, at the hospital, Plaintiff complained of left knee pain and
she said she had been using a cane due to difficulty walking. (Id. at 951). On examination,
Plaintiff had tenderness, but had full range of motion, no pain with varus or valgus range of
motion or flexion and extension, and no appreciable edema or effusion. (Id. at 951-52). The
nurse discharged Plaintiff with a change in prescriptions for her knee. (Id. at 952). On April 4,

7

2014, Plaintiff visited her physician and the physician noted that Plaintiff “[u]ses a cane for
ambulation.” (Id. at 997). Upon exam, the doctor found Plaintiff in no distress. (Id.).
On November 13, 2014, Plaintiff visited her doctor complaining of new onset intermittent
edema of the right foot. (Id. at 1020). Plaintiff reported to her doctor that “she needs to
ambulate with a cane or pushes a cart when walking distances, due to feelings of imbalance.”
(Id. at 1020-1021). Upon examination, the medical provider found no edema in either foot, and
normal range of motion. (Id. at 1021).
These medical records show that Plaintiff occasionally used a cane. However, Plaintiff
failed to cite to any medical records that show a cane was prescribed or required for Plaintiff to
ambulate. Thus, the objective medical records do not support a need for a cane.
Even though the ALJ did not include a limitation for use of an ambulatory device, he
mentioned that Plaintiff was observed using a cane due to her reported difficulty walking. (Id. at
47). The ALJ also noted that Plaintiff reported using a cane to help with balance, but an
examination showed no balance disturbance. (Id. at 48). More importantly, when questioning
the vocational expert, the ALJ included an additional limitation in the hypothetical that this
individual would need a short rest break or an option to work seated. (Id. at 85). For jobs other
than Plaintiff’s past relevant work – namely assembler arranger, folder, inspector/hand packager
– the vocational expert testified that these jobs “entail basically standing or sitting at a
workstation. And I don’t believe as long as she remains at the work station working, it would
make any difference as to whether she was standing or sitting back on a stool while at the work
station.” (Id.). The ALJ then included these jobs in an alternate finding. Thus, even if the ALJ
erred in failing to include a limitation concerning the use of an ambulatory device in the RFC,

8

the Court finds the error is harmless because the ALJ included jobs that allow for an individual
to be seated while performing them.
Plaintiff also briefly asserts that the ALJ erred in failing to develop the record as to
Plaintiff’s use of an assistive device. (Doc. 21 at 14-15). In completing the five-step sequential
process, the ALJ has a duty to develop a full and fair record, whether the claimant is represented
by counsel or not. Mosley v. Acting Comm’r of Soc. Sec. Admin., 633 F. App’x 739, 741 (11th
Cir. 2015) (citing Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir. 1981)). Nevertheless, the
claimant bears the burden of proving that she is disabled and, accordingly, is responsible for
producing evidence to support her claim. Id. Moreover, remand is required only when:
“[T]he record reveals evidentiary gaps which result in unfairness or clear
prejudice.” Brown v. Shalala, 44 F.3d 931, 935 (11th Cir. 2015). In other words,
“there must be a showing of prejudice before we will find that the claimant’s right
to due process has been violated to such a degree that the case must be remanded
to the [ALJ] for further development of the record.” Id. Prejudice requires a
showing that “the ALJ did not have all of the relevant evidence before him in the
record (which would include relevant testimony from claimant), or that the ALJ did
not consider all of the evidence in the record in reaching his decision.” Kelley v.
Heckler, 761 F.2d 1538, 1540 (11th Cir. 1985).
Id. at 742. Here, Plaintiff did not demonstrate any evidentiary gaps in the record. Further,
Plaintiff did not show that any of Plaintiff’s medical providers prescribed the use of a cane or
required Plaintiff to use an assistive device to ambulate. Nor can the Court find that the ALJ did
not have all of the relevant evidence before him or that he failed to consider the evidence as a
whole. Thus, the Court finds that the ALJ did not err in failing to develop the record further.
3.

Hypertension

Plaintiff argues that the ALJ erred in finding Plaintiff’s hypertension a non-severe
impairment and further erred in not including any limitations in Plaintiff’s RFC related to her
hypertension. (Doc. 21 at 15). Plaintiff asserts that the medical records are “replete” with

9

Plaintiff’s many hospitalizations caused by extreme high blood pressure. (Id. (citing Tr. at 489,
518, 540, 573, 633, 642, 828-33, 872, 914, 927, 970, 1030)).
The Commissioner argues that substantial evidence supports the ALJ’s finding that
Plaintiff’s hypertension was not a severe impairment and, further, the ALJ considered Plaintiff’s
non-severe impairments when formulating the RFC. (Doc. 21 at 19).
At step two of the sequential evaluation, the ALJ analyzes the severity of a claimant’s
impairments. At this step, “[a]n impairment is not severe only if the abnormality is so slight
and its effect so minimal that it would clearly not be expected to interfere with the individual’s
ability to work, irrespective of age, education or work experience.” McDaniel v. Bowen, 800
F.2d 1026, 1031 (11th Cir. 1986). A severe impairment must bring about at least more than a
minimal reduction in a claimant’s ability to work and must last continuously for at least twelve
months. See 20 C.F.R. § 404.1505(a). This inquiry “acts as a filter” so that insubstantial
impairments will not be given much weight. Jamison 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).
In the Eleventh Circuit, “[n]othing requires that the ALJ must identify, at step two, all
of the impairments that should be considered severe.” Heatly v. Comm’r of Soc. Sec., 382 F.
App’x 823, 825 (11th Cir. 2010). Rather, the ALJ is required to consider a claimant’s
impairments in combination, whether severe or not. Id.
A severe impairment is an impairment or combination thereof that significantly
limits the claimant’s physical or mental ability to do basic work activities. . . . The
determination of whether the claimant suffers from a severe impairment acts as a
filter. Jamison v. Bowen, 814 F.2d 585, 588 (11th Cir. 1987). Thus, while a claim

10

is denied if the claimant does not suffer from a severe impairment, the finding of
any severe impairment, regardless of whether it qualifies as a disability or results
from a single impairment or combination thereof, is sufficient to satisfy the second
step of the SSA’s sequential analysis. Id. Nonetheless, beyond the second step, the
ALJ must consider the entirety of the claimant’s limitations, regardless of whether
they are individually disabling.
Griffin v. Comm’r of Soc. Sec., 560 F. App’x 837, 841-42 (11th Cir. 2014). If any impairment
or combination of impairments qualifies as “severe,” step two is satisfied and the claim
advances to step three. Gray v. Comm’r of Soc. Sec., 550 F. App’x 850, 852 (11th Cir. 2013)
(citing Jamison, 814 F.2d at 588).
Here, the ALJ found Plaintiff to have the severe impairments of coronary artery disease,
plantar fasciitis, and obesity. (Tr. at 43). Further, the ALJ specifically found:
In addition to the above-listed severe impairments, the claimant was diagnosed with
hypertension, diabetes mellitus and a history of CVA. After considering the
evidence, I find that these impairments, either alone or in concert with her other
impairments, cause no more than a minimal effect on her ability to engage in basic
work activity. According to the record, the claimant has a history of medication
noncompliance as it relates to her hypertension (3F, 10F, 12F, 13F and 14F). The
claimant reportedly fails to check her blood pressure, and she does not consistently
take her medications.
(Tr. at 44). Thus, even if the ALJ erred in finding Plaintiff’s hypertension a non-severe
impairment, the Court finds that the error is harmless because the ALJ considered Plaintiff’s
severe impairments in combination with her non-severe impairments – including her
hypertension – when determining Plaintiff’s RFC.
Plaintiff also argues that the ALJ found Plaintiff non-compliant with her treatment by not
taking her medications. (Tr. at 15). Plaintiff claims that the ALJ erred in disregarding Plaintiff’s
limitations stemming from her hypertension impairment “simply because the claimant has not
complied with treatment to the ALJ’s satisfaction.” (Doc. 21 at 16).

11

The Commission asserts that Plaintiff did not list any limitations Plaintiff has related to
her hypertension, nor did Plaintiff point to any medical records that support limitations in her
ability to work due to her hypertension. The Court agrees. No doubt Plaintiff’s hypertension is a
serious condition. However, Plaintiff has not provided any limitations in her ability to work due
to this condition, nor has Plaintiff cited to any medical records that support a limitation caused
by Plaintiff’s hypertension. See Hubbard v. Comm’r of Soc. Sec., 618 F. App’x 643, 650 (11th
Cir. 2015) (finding that even though Plaintiff had certain serious medical conditions, the ALJ did
not err when not including limitations as to these conditions because the medical records “did not
indicate any functional limitations related to those conditions”). Further, this Court has held:
As in all Social Security disability cases, Plaintiff bears the ultimate burden of
proving disability, and is responsible for furnishing or identifying medical and other
evidence regarding his or her impairments. . . . It is a plaintiff’s burden to provide
the relevant medical and other evidence that he or she believes will prove disabling
physical or mental functional limitations. 20 C.F.R. §§ 404.1512(c); 416.912(c).
Bear v. Astrue, 838 F. Supp. 2d 1267, 1273 (M.D. Fla. 2011) (citations omitted). Here, Plaintiff
failed to meet her burden of proving limitations in her ability to work due to her hypertension.
Accordingly, the Court finds that ALJ did not err by failing to include any limitations in
Plaintiff’s RFC related to her hypertension.
Finally, Plaintiff claims that the ALJ simply disregarded Plaintiff’s limitations stemming
from her hypertension impairment because Plaintiff had not complied with her treatment to the
ALJ’s satisfaction. (Doc. 21 at 15-16). Plaintiff claims that some of her non-compliance was
due to her inability to afford her medication. (Id. at 16).
The Eleventh Circuit has held that “refusal to follow prescribed medical treatment
without a good reason will preclude a finding of disability, but poverty excuses noncompliance.”
Ellison v. Barnhart, 355 F.3d 1272, 1275 (11th Cir. 2003) (citation and quotation omitted). If a

12

plaintiff fails to comply with prescribed treatment, then the ability to afford medication is a
factor that should be considered in the administrative process. SSR 16-3P, 2016 WL 1119029, at
*9 (Mar. 16, 2016). When an ALJ relies on noncompliance with prescribed medical treatment as
the “sole ground for the denial of disability benefits,” and the record contains evidence that a
plaintiff was unable to afford the prescribed medical treatment, then the ALJ must determine
whether a plaintiff could afford the prescribed medical treatment. Ellison, 355 F.3d at 1275.
In this case, the ALJ noted Plaintiff’s non-compliance with medications and treatment
throughout the decision. (See Tr. at 44, 48). But as stated above, even if the ALJ noted this noncompliance, the Court finds Plaintiff failed to indicate any limitations in her ability to work that
she experienced due to her hypertension. Thus, the Court finds substantial evidence supports the
ALJ’s determination as to Plaintiff’s RFC.
B.

Whether Substantial Evidence Supports the ALJ’s Evaluation of Plaintiff’s
Mental Impairments

Plaintiff asserts that the ALJ found Plaintiff had a learning disability that was not a
medically determinable impairment, but nonetheless found Plaintiff had mild limitations in
functioning due to her non-medically determinable mental impairment. (Doc. 21 at 22-23).
Plaintiff claims that the ALJ “is prohibited from considering symptoms and limitations arising
from” non-medically determinable mental impairments. (Id. at 23). Plaintiff then argues that the
ALJ “suspected” Plaintiff had a learning disability, but admitted there was no available medical
evidence and, thus, should have ordered a consultative examination. (Id.).
The Commissioner argues that while the ALJ is not required to consider non-medically
determinable impairments after step two, Plaintiff did not cite to any authority that forecloses an
ALJ from considering these impairments. (Id. at 24). Further, the Commissioner contends that

13

even if the ALJ erred in considering Plaintiff’s non-medically determinable impairments and
included additional limitations in the RFC due to these limitations, the error is harmless. (Id.).
At step three, to meet the requirements of a listing, a plaintiff must “have a medically
determinable impairment(s) that satisfies all of the criteria in the listing.” 20 C.F.R. §
404.1525(d). The Listings of Impairments in the Social Security Regulations identifies
impairments that are considered severe enough to prevent a person from engaging in gainful
activity. See 20 C.F.R. Pt. 404, subpt. P, app. 1.
At the hearing, Plaintiff testified that she was in special education classes while in school.
(Tr. at 68). She also testified that she can read and write, “[j]ust a little bit.” (Id. at 61). The
ALJ cited to Plaintiff’s testimony that she suffers from a learning disability, but determined that
there was “little evidence to show that this is a medically determined impairment.” (Id. at 44).
The ALJ noted that Plaintiff left school for reasons other than her learning disability. (Id.).
Nonetheless, the ALJ included a limitation in Plaintiff’s RFC that she “is further limited to
mostly oral or low-level written instructions.” (Id. at 46).
Here, even though the ALJ found Plaintiff’s learning disabilities were not a medically
determined impairment, the ALJ included limitations in Plaintiff’s RFC based upon Plaintiff’s
testimony that she has learning disabilities. Stated another way, the ALJ included additional
limitations in Plaintiff’s RFC. Plaintiff appears to be arguing the ALJ erred by including these
additional limitations. Even if the ALJ erred, Plaintiff has not shown she was harmed by the
inclusion of these additional limitations. Accordingly, the Court finds that even if the ALJ erred
– which the Court does not find here – the error was harmless.
Plaintiff also argues that the ALJ erred by not ordering a consultative examination as to
Plaintiff’s learning disability. (Doc. 21 at 23). Plaintiff claims that the ALJ was required to

14

order a consultative examination to make an informed decision concerning Plaintiff’s learning
disability. (Id.).
The Commissioner responds that the ALJ considered the medical evidence as a whole,
including psychological examinations and, based on this review, the ALJ was under no
obligation to order a consultative examination. (Id. at 24-25).
An ALJ is not required to order a consultative examination “as long as the record
contains sufficient evidence for the administrative law judge to make an informed decision.”
Ingram v. Comm’r of Soc. Sec., 496 F.3d 1253, 1269 (11th Cir. 2007). In addition, a plaintiff
must show prejudice before a court will find that a plaintiff’s “‘right to due process has been
violated to such a degree that the case must be remanded to the Secretary for further
development of the record.’” Brown, 44 F.3d at 934-35 (citing Kelley v. Heckler, 761 F.2d 1538,
1540 (11th Cir. 1985)). To determine if prejudice exists, the Court must determine if the record
contains evidentiary gaps that will result in unfairness or clear prejudice. Id. at 935 (citing Smith
v. Schweiker, 677 F.2d 826, 830 (11th Cir. 1982)).
Here, Plaintiff bears the burden of producing relevant medical evidence to show that she
has functional limitations. Bear, 838 F. Supp. 2d at 1273. Plaintiff testified as to a learning
disability, but did not cite to any medical records that mention this alleged disability or that this
disability caused Plaintiff any limitations in her ability to work. (Tr. at 61, 68). In fact, some of
the medical records showed that upon a psychological evaluation, Plaintiff was alert, oriented x3,
and had normal effect and normal mood. (Id. at 643, 928). The Court finds that Plaintiff did not
meet her burden and did not demonstrate that the ALJ had insufficient evidence of record to
make an informed decision concerning Plaintiff’s alleged learning disability. See Good v.
Astrue, 240 F. App’x 399, 404 (11th Cir. 2007) (“As this court has explained, the ALJ need not

15

order an additional consultative examination where the record was sufficient for a decision.”).
Accordingly, the Court finds that the ALJ did not err when he did not order a consultative
examination.
C.

Whether the ALJ’s Assessment of Plaintiff’s Credibility Is Supported by
Substantial Evidence

Plaintiff asserts that the ALJ found Plaintiff to be generally honest and credible. (Doc. 21
at 27). Plaintiff then asserts that the ALJ found Plaintiff capable of performing light work
because she lives alone and performs routine and mundane daily activities. (Id.). Plaintiff
argues that these activities are not sufficient to discredit her testimony. (Id.). Finally, Plaintiff
argues that even through the ALJ acknowledged Plaintiff’s heart problems, he erroneously
discredited her testimony by finding that objective testing showed negative results. (Id.). 3
The Commissioner asserts that when evaluating Plaintiff’s RFC, the ALJ considered
Plaintiff’s statements about her symptoms and the limitations they caused. (Id. at 28). The
Commissioner argues that the ALJ properly found Plaintiff’s statements were not entirely
credible, noting that Plaintiff’s daily activities did not demonstrate that “she was incapable of
performing a reduced range of light work.” (Id. at 29). Lastly, the Commissioner asserts that the
ALJ noted that the objective findings do not support Plaintiff’s statements, Plaintiff received
“relatively conservative treatment for her impairments,” and Plaintiff was stable when she took
her medications. (Id. at 29-30).
To establish disability based on testimony of pain and other symptoms, a plaintiff must
satisfy two prongs of the following three-part test: “(1) evidence of an underlying medical
3

Plaintiff also raises the issue of Plaintiff’s medication non-compliance as an insufficient reason
to discredit Plaintiff. (Tr. at 27). As explained in above and in section II.A.2, supra, , the Court
finds that the ALJ did not rely on noncompliance with prescribed medical treatment as the sole
ground for denial of benefits. See Ellison, 355 F. 3d at 1275.

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condition; and (2) either (a) objective medical evidence confirming the severity of the alleged
pain; or (b) that the objectively determined medical condition can reasonably be expected to give
rise to the claimed pain.” Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002) (citing Holt
v. Sullivan, 921 F.3d 1221, 1223 (11th Cir. 1991)). After an ALJ has considered a plaintiff’s
complaints of pain, the ALJ may reject them as not credible, and that determination will be
reviewed to determine if it is based on substantial evidence. Moreno v. Astrue, 366 F. App’x 23,
28 (11th Cir. 2010) (citing Marbury v. Sullivan, 957 F.2d 837, 839 (11th Cir. 1992)). If an ALJ
discredits the subjective testimony of a plaintiff, then 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
(citations omitted). “A clearly articulated credibility finding with substantial supporting
evidence in the record will not be disturbed by a reviewing court.” Foote v. Chater, 67 F.3d
1553, 1562 (11th Cir. 1995). 4
The factors an ALJ must consider in evaluating a plaintiff’s subjective symptoms are:
“(1) the claimant’s daily activities; (2) the nature and intensity of pain and other symptoms; (3)
precipitating and aggravating factors; (4) effects of medications; (5) treatment or measures taken
by the claimant for relief of symptoms; and other factors concerning functional limitations.”
Moreno, 366 F. App’x at 28 (citing 20 C.F.R. § 404.1529(c)(3)).

4

Effective March 28, 2016, SSR 16-3p superseded SSR 96-7p. See SSR 16-3p, 2016 WL
1119029 (March 16, 2016). SSR 16-3p explains that “we are eliminating the use of the term
‘credibility’ from our sub-regulatory policy, as our regulations do not use this term. In doing so,
we clarify that subjective symptom evaluation is not an examination of an individual’s
character.” Id. Here, the ALJ rendered his decision on February 20, 2015. (Tr. at 51). Thus the
new regulations were not in effect at that time.

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Here, the ALJ found that the medical evidence shows that Plaintiff’s physical
impairments are severe, but the evidence failed to show that these impairments create limitations
that prevent Plaintiff from working at a light level. (Tr. at 48). The ALJ assessed Plaintiff’s
statements and testimony regarding the limiting effects of her impairments in great detail as
follows:
I have also assessed the claimant’s statements and testimony regarding the
limiting effects of her impairments, and I find them to be generally honest and
credible; however, the record does not provide that she is so impaired that she
would be incapable of performing work at the light level. In determining the
credibility of the individual’s statements, I must consider the entire case record,
including the objective medical evidence, the individual’s own statements about
symptoms, statements and other information provided by treating or examining
physicians or psychologists and other persons about the symptoms and how they
affect the individual, and any other relevant evidence in the case record (SSR 967p). Understandably, the claimant has concerns regarding the effects of her
impairments; however, her reported activities and hearing demeanor belie a finding
of disability. The claimant’s testimony did not reflect the findings contained in
objective medical records. During the hearing, the claimant presented as
responsive, honest and generally credible; however, the claimant’s testimony and
general activities do not corroborate her allegations. According to the claimant, she
lives alone and has little difficulty managing her daily activities. Moreover, the
claimant testified to memory problems and symptoms that were beyond those
suggested by the medical records, and her own estimates were beyond the residual
functional capacity. The evidence does show that that the claimant has health
problems; however, objective testing showed negative findings (Ex. 5F).
Furthermore, the claimant has a history of medication noncompliance, even as she
reported certain side effects. However, the evidence also shows that when she is
compliant, her symptoms are generally stable.
The evidence shows that the claimant’s symptoms limit her functional
abilities. This is borne by the opinions, treatment notes and testimony. However,
in any application for benefits before the Social Security Administration, the
claimant ultimately bears the burden of proof to provide evidence that supports his
or her assertions regarding the limiting effects of their impairments (SSR 88-3c).
Given the evidence presented in this case, as well as the claimant’s age and
vocational factors, I find that there is simply not enough evidence to suggest a
greater level of restriction than could be shown by objective medical findings. The
claimant’s testimony at the hearing provides some context to her treatment, as well
as the symptoms associated with her impairments; however, her testimony does
little to suggest a greater limitation than that shown by the objective medical
evidence, and the allowances provided by the residual functional capacity.

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(Id.).
The Court finds that the ALJ provided an in-depth analysis of Plaintiff’s subjective
symptoms and considered them thoroughly in the decision. The ALJ considered Plaintiff’s daily
activities, the nature and intensity of Plaintiff’s symptoms, any precipitating and aggravating
factors, the effects of Plaintiff’s medications, her treatment for her conditions, and the medical
record as a whole. (Id. at 46-49). The ALJ acknowledged that Plaintiff’s symptoms limited her
functional abilities and supported this statement by a review of the opinions, treatment notes, and
testimony. (Id. at 48). Further, the ALJ explained that Plaintiff bears the burden of proof to
produce evidence to support her assertions of the limited effects of her impairments and, in this
case, the ALJ found, “there is simply not enough evidence to suggest a greater level of restriction
than could be shown by objective medical findings.” (Id. at 49).
Further, the ALJ found that Plaintiff’s testimony at the hearing provided context to her
treatment, but did “little to suggest a greater limitation than that shown by the objective medical
evidence.” (Id.). The ALJ credited some of Plaintiff’s subjective symptoms as evinced by the
limitations in the RFC and provided clearly articulated reasons supported by substantial evidence
of record to reject some of Plaintiff’s other subjective symptoms. Accordingly, the Court finds
that the ALJ did not err in his subjective symptom determination and this determination is
supported by substantial evidence.
Plaintiff specifically takes issue with the ALJ’s statement that “[t]he evidence does show
that [sic] the claimant has heart problems; however, objective testing showed negative findings.”
(Doc. 21 at 27-28 (citing (Tr. at 48)). Plaintiff claims that the record established that Plaintiff
has significant right coronary artery stenosis. (Doc. 21 at 28).

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The Commissioner asserts that the evidence showed that while Plaintiff had heart disease,
this impairment did not limit her ability to work as alleged. (Id. at 30). Further, the
Commissioner argues that because the evidence does not fully support Plaintiff’s complaints
concerning her symptoms, the ALJ properly found those complaints not credible. (Id.).
The Court finds that the ALJ properly considered the record and noted that Plaintiff had
coronary problems. (See id. at 47). The ALJ did not determine, as Plaintiff alleges, that
Plaintiff’s coronary issues were normal. (Doc. 21 at 28). Rather, the ALJ acknowledged that
Plaintiff has heart problems, but noted that objective testing showed negative findings. (Tr. at
48). For example, the results of Plaintiff’s cardiac catheterization showed moderate right
coronary artery disease, but the results were “not significant functionally,” and left renal artery
stenosis, but will need “intervention later on.” (Tr. at 47, 791). Plaintiff also underwent a
nuclear stress test and the findings were “essentially negative.” (Id. at 970). Further, Plaintiff
was asymptomatic. (Id.). Thus, the Court finds that the ALJ did not err in finding Plaintiff had
heart problems, but objective testing showed negative findings. (Id. at 48).
Accordingly, the Court finds that the ALJ did not err in considering Plaintiff’s subjective
symptoms and substantial evidence supports the ALJ’s decision.
III.

Conclusion
Upon consideration of the submissions of the parties and the administrative record, the

Court finds that substantial evidence supports the ALJ’s decision and the decision was decided
upon proper legal standards.
Accordingly, it is hereby ORDERED:

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The decision of the Commissioner is hereby AFFIRMED pursuant to sentence four of 42
U.S.C. § 405(g). The Clerk of Court is directed to enter judgment accordingly, terminate any
pending motions and deadlines, and close the case.
DONE AND ORDERED in Fort Myers, Florida on August 14, 2018.

Copies furnished to:
Counsel of Record
Unrepresented Parties

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