Bush v. Commissioner of Social Security

Filing 21

OPINION AND ORDER affirming the Commissioner's final decision; directing the Clerk to enter judgment accordingly and to close the file. Signed by Magistrate Judge James R. Klindt on 3/5/2013. (JLD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
MARTHA BUSH,
Plaintiff,
Case No. 3:11-cv-1004-J-JRK
vs.
CAROLYN W. COLVIN,1
Acting Commissioner of Social Security,
Defendant.
_____________________________________/
OPINION AND ORDER2
I. Status
Martha Bush (“Plaintiff”) is appealing the Commissioner of the Social Security
Administration’s final decision denying her claim for disability insurance benefits (“DIB”).
Plaintiff’s alleged inability to work is a result of “chronic lymphocytic colitis, depression,
glaucoma, anxiety, [and] insomnia.” Transcript of Administrative Proceedings (Doc. No. 14;
“Tr.” or “administrative transcript”), filed April 27, 2012, at 81. On March 31, 2009, Plaintiff
filed an application for DIB, Tr. at 79-80, alleging an onset date of January 1, 2009, Tr. at

1
Carolyn W. Colvin became the Acting Commissioner of Social Security on February 14,
2013. Pursuant to Rule 25(d)(1), Federal Rules of Civil Procedure, Carolyn W. Colvin should be
substituted for Michael J. Astrue as Defendant in this suit. No further action need be taken to continue
this suit by reason of the last sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).
2
The parties consented to the exercise of jurisdiction by a United States Magistrate
Judge. See Notice, Consent, and Reference of a Civil Action to a Magistrate Judge (Doc. No. 15), filed
April 27, 2012; Reference Order (Doc. No. 17), entered May 3, 2012.

179-80, 182-83.3 Plaintiff’s application was denied initially, see Tr. at 91-92, and was denied
upon reconsideration, see Tr. at 140-41.
On April 27, 2011, an Administrative Law Judge (“ALJ”) held a hearing at which
Plaintiff and a vocational expert (“VE”) testified. Tr. at 26-78. At the time of the hearing,
Plaintiff was fifty (50) years old. See Tr. at 31. The ALJ issued a Decision on May 19, 2011,
finding Plaintiff not disabled since January 1, 2009, the alleged onset date. Tr. at 11-20. On
August 26, 2011, the Appeals Council denied Plaintiff’s request for review, Tr. at 1-3, thereby
making the ALJ’s Decision the final decision of the Commissioner. On October 11, 2011,
Plaintiff commenced this action under 42 U.S.C. § 405(g) by timely filing a Complaint (Doc.
No. 1), seeking judicial review of the Commissioner’s final decision.
Plaintiff raises two (2) issues on appeal. See Memorandum in Support of Complaint
(Doc. No. 18; “Pl.’s Mem.”), filed May 18, 2012. Generally, those issues are as follows: 1)
Plaintiff assigns error to the ALJ’s step two finding and argues that Plaintiff’s mental health
impairments should have been found to be severe, Pl.’s Mem. at 6; and 2) Plaintiff asserts
that the ALJ “erred by not properly evaluating the Plaintiff’s colitis impairments,” id. at 8
(emphasis and capitalization omitted).
In response to Plaintiff’s first issue, Defendant argues that “if Plaintiff has any ‘severe’
impairment or combination of impairments, it is not legally relevant that one of her specific
impairments was not severe” because the ALJ completed the sequential inquiry and made
specific findings at each step. Memorandum in Support of the Commissioner’s Decision

3
The summaries of Plaintiff’s application are dated April 25, 2009 and July 13, 2009. See
Tr. at 179-80, 182-83.
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(Doc. No. 20; “Def.’s Mem.”), filed August 14, 2012, at 4. As to Plaintiff’s second issue,
Defendant argues that “[t]he ALJ reviewed the record as a whole” and “fully accommodated”
Plaintiff’s limitations regarding her colitis issues and her need to use a restroom. Id. at 8, 9.
After careful consideration of the parties’ respective memoranda, the undersigned
determines that this matter is due to be affirmed for the reasons explained herein.
II. The ALJ’s Decision
When determining whether an individual is disabled,4 an ALJ must follow the five-step
sequential inquiry set forth in the Code of Federal Regulations (“Regulations”), determining
as appropriate whether the claimant (1) is currently employed or engaging in substantial
gainful activity; (2) has a severe impairment; (3) has an impairment or combination of
impairments that meets or medically equals one listed in the Regulations; (4) can perform
past relevant work; and (5) retains the ability to perform any work in the national economy.
20 C.F.R. §§ 404.1520, 416.920; see also Phillips v. Barnhart, 357 F.3d 1232, 1237 (11th Cir.
2004). The claimant bears the burden of persuasion through step four and, at step five, the
burden shifts to the Commissioner. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987).
Here, the ALJ followed the five-step sequential inquiry. See Tr. at 13-21. At step one,
the ALJ determined that Plaintiff “has not engaged in substantial gainful activity since January
1, 2009, the alleged onset date.” Tr. at 13 (emphasis and citation omitted). At step two, the
ALJ found Plaintiff “exhibits the signs and symptoms of the following severe impairment:

4
“Disability” is defined in the Social Security Act as the “inability to engage in 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 12 months[.]” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A).
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chronic lymphocytic colitis.” Tr. at 13 (emphasis and citation omitted). At step three, the ALJ
ascertained Plaintiff “does not have an impairment or combination of impairments that meets
or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix
1.” Tr. at 17 (emphasis and citations omitted).
The ALJ determined Plaintiff has the following residual functional capacity (“RFC”):
[Plaintiff can] perform a full range of work at all exertional levels. It is necessary
for her to avoid driving at night, however, due to the symptoms of
preglaucoma. [Plaintiff’s] digestive impairment requires her to be given the
opportunity to take up to two unscheduled breaks per day and to work in a nonproduction-pace work setting, near a bathroom.
Tr. at 17 (emphasis omitted). At step four, the ALJ found that Plaintiff’s “current impairments
do not preclude the performance of her past relevant work as a social services worker or
reception clerk.” Tr. at 19 (emphasis omitted). Although not required to do so because of
the step four finding, the ALJ proceeded to step five and made the following alternative
finding. Tr. at 19-20. The ALJ determined that “considering [Plaintiff’s] age, education, work
experience, and [RFC], there are other jobs existing in the national economy that [Plaintiff]
retains the ability to perform[,]” including office helper, gate attendant, parking-lot attendant,
table worker, stuffer, and telephone order clerk. Tr. at 19-20 (emphasis and citation omitted).
The ALJ concluded that Plaintiff “has not been under a disability . . . since January 1, 2009,
through the date of th[e D]ecision.” Tr. at 20 (emphasis and citation omitted).
III. Standard of Review
This Court reviews the Commissioner’s final decision as to disability pursuant to 42
U.S.C. §§ 405(g) and 1383(c)(3). Although no deference is given to the ALJ’s conclusions
of law, findings of fact “are conclusive if . . . supported by ‘substantial evidence’ . . . .”

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Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001) (citing Falge v. Apfel, 150 F.3d 1320,
1322 (11th Cir. 1998)). “Substantial evidence is something ‘more than a mere scintilla, but
less than a preponderance.’” Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005)
(quoting Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987)). The substantial evidence
standard is met when there is “‘such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.’” Falge, 150 F.3d at 1322 (quoting Richardson v.
Perales, 402 U.S. 389, 401 (1971)). It is not for this Court to reweigh the evidence; rather,
the entire record is reviewed to determine whether “the decision reached is reasonable and
supported by substantial evidence.” Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th Cir.
1991) (internal quotation and citations omitted); see also McRoberts v. Bowen, 841 F.2d
1077, 1080 (11th Cir. 1988); Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987). The
decision reached by the Commissioner must be affirmed if it is supported by substantial
evidence–even if the evidence preponderates against the Commissioner’s findings. Crawford
v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158-59 (11th Cir. 2004) (per curiam).
IV. Discussion
As noted above, Plaintiff raises two issues on appeal. Each is discussed in turn.
A. Plaintiff’s First Issue
Although Plaintiff generally frames the first issue as an attack on the ALJ’s step two
finding, Plaintiff advances two main arguments within this issue: 1) the ALJ erred in finding
Plaintiff’s mental health impairments are not severe; and 2) the ALJ erred by not including
limitations stemming from Plaintiff’s mental health impairments in the hypothetical question
presented to the VE. See Pl.’s Mem. at 8.

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1. Severity of Plaintiff’s Mental Health Impairments
Plaintiff argues the ALJ erred in finding that Plaintiff’s “major depressive disorder and
obsessive compulsive disorder” are not severe. Pl.’s Mem. at 6. In responding, Defendant
basically contends that this argument is a non-issue because the ALJ completed the
sequential inquiry after finding at least one impairment (chronic lymphocytic colitis) to be
severe. Def.’s Mem. at 4-5.
At step two of the sequential evaluation process, the ALJ must determine if a claimant
suffers from a severe impairment. See 20 C.F.R. § 404.1520(a)(4)(ii). At this step, “[a]n
impairment can be considered as not severe only if it is a slight abnormality which has such
a minimal effect on the individual that it would not be expected to interfere with the
individual’s ability to work[.]” Brady v. Heckler, 724 F.2d 914, 920 (11th Cir. 1984). “[T]he
‘severity’ of a medically ascertained disability 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
context of a Social Security disability benefits case, a condition is severe if it affects a
claimant’s ability to maintain employment. See id.; see also Hale v. Bowen, 831 F.2d 1007,
1011 (11th Cir. 1987) (stating “[a] claimant bears a heavy burden of establishing the
existence of a disability [by first showing] that her impairment prevents her from performing
her previous work”). Further, “[t]he severe impairment either must have lasted or must be
expected to last for at least 12 months.” Davis v. Barnhart, No. 06-11021, 186 F. App’x 965,
967 (11th Cir. 2006) (unpublished) (citing Barnhart v. Walton, 535 U.S. 212, 216 (2002)).

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A severe impairment interferes with a claimant’s ability to perform “basic work
activities.” See Bowen v. Yuckert, 482 U.S. 137, 148 (1987). The Regulations provide six
examples of “basic work activities”: (1) Physical functions such as walking, standing, sitting,
lifting, pushing, pulling, reaching, carrying, or handling; (2) Capacities for seeing, hearing, and
speaking; (3) Understanding, carrying out, and remembering simple instructions; (4) Use of
judgment; (5) Responding appropriately to supervision, co-workers, and unusual work
situations; and (6) Dealing with changes in a routine work setting. 20 C.F.R. § 404.1521(b);
see also Davis, 186 F. App’x at 966-67.
With regard to mental limitations, an ALJ is required to rate degrees of limitation in four
broad functional areas: “Activities of daily living; social functioning; concentration,
persistence, or pace; and episodes of decompensation.” 20 C.F.R. § 404.1520a(c)(3). The
Regulations provide, “If we rate the degree of your limitation in the first three functional areas
as ‘none’ or ‘mild’ and ‘none’ in the fourth area, we will generally conclude that your
impairment(s) is not severe, unless the evidence otherwise indicates that there is more than
a minimal limitation in your ability to do basic work activities.” 20 C.F.R. § 404.1520a(d)(1);
see also 20 C.F.R. § 404.1521.
Here, at step two, the ALJ found Plaintiff had one severe impairment: “chronic
lymphocytic colitis.” Tr. at 13 (emphasis omitted). The ALJ explained in detail why Plaintiff’s
“major depressive disorder and obsessive compulsive disorder, considered singly and in
combination, do not cause more than a minimal limitation in [Plaintiff’s] ability to perform
basic mental work activities.” Tr. at 14. As far as the four broad functional areas for
evaluating mental disorders, the ALJ found as follows. Plaintiff has no limitation in activities

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of daily living, Tr. at 15 (citing Tr. at 31-70, 206, 264-75); Plaintiff has mild limitation in social
functioning, Tr. at 15 (citing 204, 264-75, 472-83, 495); see Tr. at 443; Plaintiff has mild
limitation in concentration, persistence, or pace, Tr. at 16 (citing Tr. at 33-34, 49, 55-57, 205,
223, 264, 274, 275); and Plaintiff has experienced no episodes of decompensation of
extended duration, Tr. at 14-15; see Tr. at 274. The ALJ, therefore, found Plaintiff’s mental
impairments “not severe.” See Tr. at 13; see also 20 C.F.R. § 404.1520a(d)(1); 20 C.F.R.
§ 404.1521. These findings are supported by substantial evidence.
It appears that Plaintiff is largely concerned with the ALJ’s treatment of Plaintiff’s
Global Assessment of Functioning (“GAF”) scores. Pl.’s Br. at 7-8. Plaintiff contends that
“[b]ased on the GAF scores from 2010 the [P]laintiff had moderate and not mild limitations.”
Pl.’s Br. at 7. Such a contention standing alone is generally insufficient to warrant reversal,
because “the Commissioner has declined to endorse the GAF scale for ‘use in the Social
Security and [Supplemental Security Income] disability programs,’ and has indicated that
GAF scores have no ‘direct correlation to the severity requirements of the mental disorders
listings.’” Wind v. Barnhart, 133 F. App’x 684, 692 n.5 (11th Cir. 2005) (unpublished) (quoting
Revised Medical Criteria for Evaluating Mental Disorders and Traumatic Brain Injury, 65 FR
50746-01, 2000 WL 1173632 (Aug. 21, 2000)); see also Wilson v. Astrue, 653 F. Supp. 2d
1282, 1293 (M.D. Fla. 2009).

The undersigned recognizes that as a result of the

Commissioner’s refusal to endorse the GAF scale, and due to the subjectivity of the
clinician’s determination involved in assigning the GAF score, courts appropriately assign
GAF scores limited weight in reviewing an ALJ’s determination regarding a plaintiff’s
functional capacity. Indeed, as this Court previously noted, “Reliance upon a GAF score is

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of questionable value in determining an individual’s mental functional capacity.” Gasaway
v. Astrue, No. 8:06-cv-1869-T-TGW, 2008 WL 585113, at *4 (M.D. Fla. Mar. 3, 2008)
(unpublished) (citing Deboard v. Comm’r Soc. Sec., 211 F. App’x 411, 415-16 (6th Cir.
2006)).
The ALJ afforded “little weight to the assignment of [GAF] scores in the moderate
range after November 2009.” Tr. at 16 (internal quotations omitted); see Tr. at 474, 477, 482,
484, 486. The ALJ reasoned as follows: “Even overlooking the fact that the majority of these
scores did not come from an acceptable medical source, . . . it is clear that there appears to
be little consistency for the assignment of a particular score at any time.” Tr. at 16 (internal
quotations and citation omitted); see Tr. at 474, 477, 482, 484, 486. The ALJ also stated that
“[t]he results of the most recent mental status examination – including the reference to ‘mild’
depression and to an abatement of intrusive thoughts – do not appear consistent with a GAF
score in the 50s either.” Tr. at 16 (citing Tr. at 473-74). The undersigned has reviewed the
ALJ’s reasoning and finds it to be supported by substantial evidence.
Assuming merely for purposes of argument that the ALJ erred by finding Plaintiff’s
mental health impairments are not severe, any error would be harmless. “Nothing 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)

(unpublished); see Jamison v. Bowen, 814 F.2d 585, 588 (11th Cir. 1987) (recognizing that
“the finding of any severe impairment . . . whether or not it results from a single severe
impairment or a combination of impairments that together qualify as severe” is sufficient to
satisfy step two). Even if an ALJ’s finding that an impairment is not severe at step two is

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considered error, such error is harmless if “the ALJ considered all of [the] impairments in
combination at later steps in the evaluation process.” Burgin v. Comm’r of Soc. Sec., 420 F.
App’x 901, 903 (11th Cir. 2011) (unpublished); see Heatly, 382 F. App’x at 825 (stating that
an “ALJ is required to demonstrate that [he or she] has considered all of the claimant’s
impairments, whether severe or not, in combination”); Bowen v. Heckler, 748 F.2d 629, 635
(11th Cir. 1984) (finding that an ALJ must make “specific and well-articulated findings as to
the effect of the combination of impairments”).
When considering Plaintiff’s mental health impairments, although found to be not
severe, the ALJ considered the impairments “singly and in combination.” Tr. at 14. The ALJ
further found that Plaintiff “does not have an impairment or combination of impairments that
meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P,
Appendix 1.” Tr. at 17 (emphasis and citation omitted). Then, the ALJ proceeded through
the sequential evaluation process and noted that she carefully considered the “entire record”
in determining Plaintiff’s RFC. Tr. at 17; see Burgin v. Comm’r of Soc. Sec., 420 F. App’x at
903; Heatly, 382 F. App’x at 825; see also Jones v. Dept. of Health & Human Servs., 941
F.2d 1529, 1533 (11th Cir. 1991) (recognizing that a simple expression that the ALJ
considered a claimant’s impairments in combination constitutes a sufficient statement of such
findings). Therefore, even if an error could be identified, the error would be harmless.
2. Hypothetical to VE
Plaintiff contends that “some consideration of the limitations with regard to [Plaintiff’s]
mental health issues should have been included in the hypothetical to the [VE].” Pl.’s Br. at
8. Plaintiff fails, however, to allege any limitations that should have been included in the

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hypothetical. See id. Plaintiff then recognizes, “Although the ALJ erred by not appropriately
including the effects of any mental health impairments, it does not ultimately mean that the
[P]laintiff will be successful in her disability claim.” Id. Responding, Defendant contends that
“the ALJ reasonably found Plaintiff had no limitations resulting from her mental impairments,
and Plaintiff has failed to show that the record established limitations.” Def.’s Mem. at 5.
As discussed above, the ALJ properly considered Plaintiff’s mental health impairments
and determined that the limitations “cause [no] more than a minimal limitation in [Plaintiff’s]
ability to perform basic mental work activities.” Tr. at 14. The ALJ’s findings and reasoning
are supported by substantial evidence. The ALJ, therefore, was not required to include any
alleged mental limitation in the hypothetical to the VE.
B. Plaintiff’s Second Issue
The second issue is whether the ALJ “erred by not properly evaluating the Plaintiff’s
colitis impairments.” Pl.’s Mem. at 8 (emphasis and capitalization omitted). Although not a
model of clarity, Plaintiff’s contentions in relation to her second issue can be interpreted in
two ways: 1) as an attack on the ALJ’s RFC finding that Plaintiff needs only two unscheduled
bathroom breaks per day; and 2) as an attack on the reasoning the ALJ provided for
discrediting Plaintiff’s testimony. See id. at 8-11. Given that the analysis for these two
interpretations largely overlaps, the undersigned first sets out the applicable law for analyzing
an RFC finding and a credibility finding, then provides a combined analysis.
In determining an individual’s RFC, the ALJ “must consider limitations and restrictions
imposed by all of an individual’s impairments . . . .” SSR 96-8P, 1996 WL 374184, at *5; see
also 20 C.F.R. § 404.1545(a)(2); Swindle v. Sullivan, 914 F.2d 222, 226 (11th Cir. 1990)

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(stating “the ALJ must consider a claimant’s impairments in combination”) (citing 20 C.F.R.
§ 404.1545; Reeves v. Heckler, 734 F.2d 519, 525 (11th Cir. 1984)); Hudson v. Heckler, 755
F.2d 781, 785 (11th Cir. 1985) (stating that “[w]here a claimant has alleged a multitude of
impairments, a claim . . . may lie even though none of the impairments, considered
individually, is disabling”) (internal quotation and citation omitted).
“[C]redibility determinations are the province of the ALJ.” Moore, 405 F.3d at 1212.
The ALJ “must articulate explicit and adequate reasons” for finding a claimant “not credible.”
Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002). “When evaluating a claimant’s
subjective symptoms, the ALJ must consider such things as: (1) the claimant’s daily activities;
(2) the nature, location, onset, duration, frequency, radiation, and intensity of pain and other
symptoms; (3) precipitating and aggravating factors; (4) adverse side-effects of medications;
and (5) treatment or measures taken by the claimant for relief of symptoms.” Davis v. Astrue,
287 F. App’x 748, 760 (11th Cir. 2008) (unpublished) (citing 20 C.F.R. § 404.1529(c)(3)(i)(vi)). After considering the claimant’s subjective complaints, “the ALJ may reject them as not
creditable, and that determination will be reviewed for substantial evidence.” Marbury v.
Sullivan, 957 F.2d 837, 839 (11th Cir. 1992) (citing Wilson v. Heckler, 734 F.2d 513, 517
(11th Cir. 1984)).
Here, after summarizing Plaintiff’s testimony given at the hearing, the ALJ found that
Plaintiff’s “medically determinable impairments could reasonably be expected to cause the
alleged symptoms”; however, according to the ALJ, “The evidence of record . . . does not fully
support the functional limitations ascribed to them by [Plaintiff].” Tr. at 18. The ALJ provided,
in substance, the following reasons for discrediting Plaintiff’s testimony regarding her

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symptoms relating to her chronic lymphocytic colitis. The ALJ pointed out that although
Plaintiff asserted “that she quit working due to the limiting effects of her daily symptoms or
treatment, . . . the mental health treatment notes refer to a complete absence of colitis
symptoms between November 2008 and February 2009.” Tr. at 18 (citing Tr. at 328). The
ALJ noted that Plaintiff “did not attempt to file for [DIB], or to maintain an [inflammatory bowel
disease] log, until the failure to sell the home and to find a new job began to sap her financial
resources.” Tr. at 18 (citing Tr. at 497); see also Tr. at 328, 481. The ALJ relied on the lack
of treatment between November 2008 to October 2009, reasoning that “[t]his gap in treatment
does not support in any way the allegations of ten to fourteen bowel movements per day in
[Plaintiff’s] initial disability report.” Tr. at 18 (citing Tr. at 213). Further, the ALJ recognized
that “[e]ven at the next follow-up visit [(in October 2009)], [Plaintiff] did not allege weight loss
or poor appetite.” Tr. at 18 (citing Tr. at 503); see also Tr. at 502. Medication seemed to
help Plaintiff. See Tr. at 18; see also Tr. at 470-71, 507-09. According to the ALJ, Plaintiff
asserted “at the hearing that it is possible for her to avoid accidents with the use of Pepto
Bismol chewables or Imodium.” Tr. at 19; see Tr. at 51. The ALJ observed that Plaintiff’s
“symptoms did not cause her to quit performing her harp in public, to quit doing puppet shows
in an elderly home, or to stop officiating at weddings.” Tr. at 19; see Tr. at 196-202 (Plaintiff’s
self employment earnings from 2009-2011). The ALJ noted that Plaintiff “continue[d] to go
to social functions” and “to escort her mother to Wal-Mart on a regular basis.” Tr. at 19; see
Tr. at 56-57. Finally, the ALJ “add[ed] that (1) [Plaintiff’s] pain and diarrhea do not limit her
ability to do her laundry and to wash dishes [see Tr. at 55, 206]; (2) it is unlikely [Plaintiff’s]
mother does the majority of the household chores, given the earlier reference to her disabling

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arthritic back [see Tr. at 206, 334, 497]; and (3) the treatment notes do not support [Plaintiff’s]
allegations of persistent and severe disability fatigue with the use of medication [see Tr. at
468, 473, 485, 487, 489, 491, 497].” Tr. at 19 (internal quotations and citations omitted).
The ALJ considered the appropriate factors in assessing Plaintiff’s credibility, and the
ALJ listed numerous explicit and adequate reasons for discrediting Plaintiff’s testimony.5 The
ALJ also appropriately analyzed the medical evidence of record and found that Plaintiff
needed no more than two unscheduled restroom breaks per day. The ALJ’s reasons, on the
whole, are supported by substantial evidence. The undersigned, therefore, finds no error in
the ALJ’s credibility determination of Plaintiff or in the ALJ’s RFC analysis.6
V. Conclusion
After thoroughly reviewing the parties’ filings, the administrative transcript, and the
remainder of the file, the undersigned finds that the ALJ’s Decision is supported by
substantial evidence. Accordingly, it is

5
The ALJ accounted for Plaintiff’s need to use the restroom in the RFC by limiting her to
work that would allow her “to take up to two unscheduled breaks per day and to work in a non-productionpace work setting, near a bathroom.” Tr. at 17 (emphasis omitted). These limitations are the limitations
that the ALJ found reasonable and further found to be supported by the record. The undersigned agrees.
6
Plaintiff has one sentence at the end of the discussion of her second issue that requests
an “additional assessment . . . by an independent medical consultant to determine the severity of the
condition.” Pl.’s Mem. at 11. The Scheduling Order (Doc. No. 16), entered April 30, 2012, advises that
any argument “not supported by citation to the record of the pertinent facts and by citations of the
governing legal standards . . . is subject to being disregarded for insufficient development.” The request
for an additional examination is not developed and therefore, need not be considered. See, e.g.,
Hutchinson v. Astrue, 408 F. App’x 324, 326 n.1 (11th Cir. 2011) (unpublished) (deeming an issue waived
when a claimant made “passing reference” to an impairment without supporting it with argument) (citing
Davis v. Jones, 506 F.3d 1325, 1330 n.8 (11th Cir. 2007)). Regardless, the administrative transcript
contains sufficient evidence on which the ALJ based her Decision, so an independent examination was
unnecessary. See Ingram v. Comm’r of Soc. Sec., 496 F.3d 1253, 1269 (11th Cir. 2007) (recognizing
that while “[t]he [ALJ] has a duty to develop the record where appropriate[,]” the ALJ “is not required to
order a consultative examination as long as the record contains sufficient evidence for the [ALJ] to make
an informed decision”) (citation omitted).
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ORDERED:
1.

The Clerk of Court is directed to enter judgment pursuant to sentence four of

42 U.S.C. § 405(g) AFFIRMING the Commissioner’s final decision.
2.

The Clerk of Court is further directed to close the file.

DONE AND ORDERED at Jacksonville, Florida on March 5, 2013.

jlk
Copies to:
Counsel of Record

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