Braid v. Commissioner of Social Security
Filing
15
MEMORANDUM OF DECISION: The final decision of the Commissioner is AFFIRMED. The Clerk is directed to enter judgment for the Commissioner and close the case. Signed by Magistrate Judge Gregory J. Kelly on 3/18/2014. (MDH)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
DOUGLAS SAMUEL BRAID,
Plaintiff,
v.
Case No: 6:13-cv-230-Orl-GJK
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
MEMORANDUM OF DECISION
Douglas Samuel Braid (the “Claimant”), appeals to the District Court from a final decision
of the Commissioner of Social Security (the “Commissioner”) denying his application for benefits.
Doc. No. 1. Claimant argues that the Administrative Law Judge (“ALJ”) erred by: 1) not giving
substantial weight to Dr. Estampador-Tan’s medical opinions; and 2) failing to incorporate all of
Claimant’s impairments in the hypothetical to the Vocational Expert (“VE”). Doc. No. 13 at 1320. For the reasons set forth below, the Commissioner’s final decision is AFFIRMED.
I.
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 — 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. Foote v.
Chater, 67 F.3d 1553, 1560 (11th Cir. 1995) (citing Walden v. Schweiker, 672 F.2d 835, 838 (11th
Cir. 1982) and Richardson v. Perales, 402 U.S. 389, 401 (1971)); accord Edwards v. Sullivan, 937
F.2d 580, 584 n.3 (11th Cir. 1991).
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, 937 F.2d at 584 n.3; 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); Parker v. Bowen, 793 F.2d 1177, 1180 (11th Cir. 1986) (court also must consider
evidence detracting from evidence on which Commissioner relied). The District Court “‘may not
decide the facts anew, reweigh the evidence, or substitute [its] judgment for that of the
[Commissioner].’” See Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir. 2004) (quoting
Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983)).
II.
ANALYSIS.
A. Dr. Estampador-Tan.
At the center of this dispute is whether the ALJ failed to provide good cause for rejecting
Dr. Estampador-Tan’s opinions. Doc. Nos. 13 at 13-18; 14 at 5-8. Weighing the opinions and
findings of treating, examining, and non-examining physicians is an integral part of steps four and
five of the ALJ’s sequential evaluation process for determining disability. The Eleventh Circuit
recently clarified the standard the Commissioner is required to utilize when considering medical
opinion evidence. In Winschel v. Commissioner of Social Security, 631 F.3d 1176, 1178-79
(11th Cir. 2011), the Eleventh Circuit 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
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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. Id. (citing 20 C.F.R. §§
404.1527(a)(2), 416.927(a)(2); Sharfarz v. Bowen, 825 F.2d 278, 279 (11th Cir. 1987)). “‘In the
absence of 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.’”
Winschel, 631 F.3d at 1179 (quoting Cowart v. Schwieker, 662 F.2d 731, 735 (11th Cir. 1981)).
Absent good cause, the opinion of a treating physician must be accorded substantial or
considerable weight. Lamb v. Bowen, 847 F.2d 698, 703 (11th Cir. 1988).
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.”
Johnson v. Barnhart, 138 F. App’x 266, 269 (11th Cir. 2005) (quoting Phillips, 357 F.3d at 124041). Thus, good cause exists to give a treating physician’s opinion less than substantial weight
when the opinion is not bolstered by the evidence, evidence supports a contrary finding, or the
opinion is conclusory or inconsistent with the physician’s medical records.
Claimant began treatment with Dr. Estampador-Tan on August 18, 2008. R. 833. During
that initial visit, Claimant reported experiencing severe neck and back pain. R. 833. Based on
Claimant’s medical history, reported pain, and a physical examination, Dr. Estampador-Tan
assessed Claimant with cervicobrachial pain, R/O radiculopathy, right adhesive capsulitis, low
back pain syndrome, and chronic intractable pain. R. 833. Dr. Estampador-Tan prescribed
Claimant Methadone, Ibuprofen, and Zanaflex. R. 833.
Claimant continued to receive treatment from Dr. Estampador-Tan through April 14, 2011.
R. 833-47, 926-36.
Throughout Claimant’s course of treatment with Dr. Estampador-Tan,
Claimant consistently reported trouble with sleeping and neck and back pain, which ranged
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between 6 and 10, with 10 being the worst. R. 834-47, 926-36. Likewise, many aspects of Dr.
Estampador-Tan’s treatment notes remained consistent throughout Claimant’s treatment:
Claimant’s shoulder abduction was 110 degrees on the left and 70 degrees on the right (R. 834-47,
926-36); Claimant’s level of pain varied depending on the activity he performed (R. 834-47, 92636); 1 Claimant’s “medications [were] effective without adverse or intolerable side effects” (R.
834-47, 926-36); and, Claimant was assessed with cervicobrachial pain, R/O radiculopathy, right
adhesive capsulitis, insomnia, and low back pain syndrome (R. 834-47, 926-36). In addition to
these consistent observations and assessments, many of the treatment notes indicate that Claimant
is doing well on the prescribed medication (R. 834-36, 39, 47, 926, 28, 31-32), or that his pain
level is “fair to good” (R. 840, 934-5) or “stable” (R. 841-6).
On March 3, 2010, Dr. Estampador-Tan completed a physical RFC assessment. R. 90911. In it, Dr. Estampador-Tan opined that Claimant can occasionally lift less than ten (10) pounds,
stand and walk at least two (2) hours in an eight (8) hour workday, sit less than six (6) hours in an
eight (8) hour workday, and has a limited ability to push and pull. R. 909-10. 2 With respect to
postural limitations, Dr. Estampador-Tan opined that Claimant can occasionally kneel and stoop,
but never climb, balance, crouch, or crawl. R. 910. With respect to manipulative limitations, Dr.
Estampador-Tan opined that Claimant can frequently finger and feel, but occasionally reach and
handle. R. 910. 3 With respect to environmental limitations, Dr. Estampador-Tan opined that
Claimant’s exposure to temperature extremes, dust, vibration, humidity, hazards, and fumes should
1
Dr. Estampador-Tan’s treatment records do not explain what activities cause Claimant the most pain. See R. 83447, 926-36.
2
Despite being prompted to do so, Dr. Estampador-Tan did not opine about the nature and degree of Claimant’s
ability to push and pull. See R. 910.
3
Despite being prompted to do so, Dr. Estampador-Tan did not provide any explanation concerning Claimant’s
manipulative limitations. See R. 910.
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be limited. R. 911. 4 Dr. Estampador-Tan further opined that Claimant is unable to complete an
eight (8) hour workday with normal breaks, and that he finds Claimant’s allegations of pain,
fatigue, and medication side effects to be credible. R. 911.
At step four of the sequential evaluation, the ALJ found that Claimant has an RFC to
“perform sedentary work as defined in 20 CFR 404.1567(a) with the additional restrictions that
[he] could climb occasionally . . . and frequent[ly reach overhead].” R. 22. In reaching this RFC,
the ALJ provided a thorough and accurate discussion of Dr. Estampador-Tan’s treatment notes.
R. 24-5. 5 The ALJ recognized that Dr. Estampador-Tan was a treating physician, and therefore
her opinions should be accorded controlling weight if they are well supported. R. 25. The ALJ,
however, found that Dr. Estampador-Tan’s opinions were not well supported, and assigned “little
weight” to her opinions. R. 25. In doing so, the ALJ explained:
During the relevant period, physical examinations have shown only
chronic neck and back pain, tenderness with diffuse moderate
spasms and decreased range of motion in the bilateral shoulders with
abduction. A pulmonary function test demonstrated only mild
obstructive ventilatory impairment. There was no significant
response to bronchodilators or restrictive ventilatory impairment.
His static lung volumes were unremarkable. Diffusion capacity
was normal. His impairment was reasonably controlled with
medications. In addition, treatment has been conservative and nonaggressive. Medication dosages were low and did not increase,
suggesting symptoms are not particularly serious.
R. 25.
Claimant argues that the ALJ’s decision to assign little weight to Dr. Estampador-Tan’s
opinions is not supported by substantial evidence because she mischaracterized Dr. Estampador-
4
Despite being prompted to do so, Dr. Estampador-Tan does not explain what medical or clinical findings support
his conclusions regarding Claimant’s environmental limitations. See R. 911.
5
Claimant does not challenge the accuracy of the ALJ’s discussion of Dr. Estampador-Tan’s treatment notes. See
Doc. No. 13 at 13-18.
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Tan’s treatment records as only indicating chronic neck and back pain. Doc. No. 13 at 15-16.
Claimant maintains that Dr. Estampador-Tan’s treatment records reveal that he suffered from
chronic and intractable neck and back pain. Doc. No. 13 at 15-16 (citing R. 833). As such,
Claimant argues that the ALJ erred when she indicated that Claimant only suffered from chronic
neck and pain, and consequently failed to articulate good cause to assign little weight to Dr.
Estampador-Tan’s opinions. Doc. No. 13 at 15-16. While Dr. Estampador-Tan initially assessed
Claimant with “Chronic Intractable Pain” (R. 833), every subsequent treatment note is devoid of
such an assessment. See R. 834-47, 926-36. Instead, each subsequent treatment note assessed
Claimant with cervicobrachial pain, R/O radiculopathy, right adhesive capsulitis, insomnia, and
low back pain syndrome. R. 834-47, 926-36. These treatment notes contain no mention or
indication that Claimant’s neck and back pain were intractable.
R. 834-47, 926-36.
Accordingly, the Court finds that the ALJ did not mischaracterize Dr. Estampador-Tan’s treatment
notes.
Next, Claimant argues that the ALJ’s decision to assign little weight to Dr. EstampadorTan’s opinions is not supported by substantial evidence because Dr. Estampador-Tan’s opinions
are supported by Dr. Avila’s treatment records, as well as his testimony. Doc. No. 13 at 17-18.
Dr. Avila treated Claimant on eight (8) occasions between July 25, 2007 and May 15, 2008. R.
775-91.
Dr. Avila’s treatment notes are essentially consistent with Dr. Estampador-Tan’s
treatment notes, indicating that Claimant suffers from chronic neck and back pain, which is
reasonably controlled with medication. Compare R. 775-91 with R. 834-47, 926-36. In light of
this consistency and the ALJ’s well-supported determination that Dr. Estampador-Tan’s treatment
notes contradict his opinions concerning Claimant’s RFC, the Court finds that Dr. Avila’s
treatment notes do not support Dr. Estampador-Tan’s RFC opinion. Likewise, the Court finds
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Claimant’s bald assertion that his testimony supports Dr. Estampador-Tan’s opinions unavailing
(See Doc. No. 13 at 17-18), since he does not challenge the ALJ’s determination that his testimony
concerning the intensity, persistence, and limiting effects of his symptoms was not credible (R.
24-6).
Having found Claimant’s arguments unavailing, the Court finds that the ALJ provided
good cause to assign little weight to Dr. Estampador-Tan’s opinions. Dr. Estampador-Tan’s
opinions concerning Claimant’s RFC primarily stem from Claimant’s troubled sleep and neck and
back pain.
See R. 909-11.
The ALJ, however, articulated numerous reasons why Dr.
Estampador-Tan’s opinions deserve little weight. R. 25. With respect to Claimant’s troubled
sleep, the ALJ found that the severity of that impairment did not rise to the level assessed by Dr.
Estampador-Tan because: 1) a pulmonary function test demonstrated only mild obstructive
ventilator impairment; 2) there was no significant response to bronchodilators or restrictive
ventilatory impairment; 3) Claimant’s static lung volumes were unremarkable; and 4) his diffusion
capacity was normal. R. 25. With respect to Claimant’s neck and back pain, the ALJ found that
the severity of that impairment did not rise to the level assessed by Dr. Estampador-Tan because:
1) physical examinations revealed only chronic neck and back pain, moderate spasms, and
decreased range of motion in the bilateral shoulders; 2) the pain was reasonably controlled with
medication; 3) treatment for the pain was conservative; and 4) medication dosages were low and
did not increase, suggesting Claimant’s symptoms were not particularly serious.
R. 25.
Claimant does not challenge many of these reasons, and the Court finds that these reasons are
supported by substantial evidence. See R. 828, 834-47, 926-36. Further, the Court finds that
these reasons provide good cause to assign Dr. Estampador-Tan’s opinions little weight. See, e.g.,
Rosario v. Comm’r of Soc. Sec., 490 F. App’x 192, 195 (11th Cir. 2012) (finding that inconsistency
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of treating physician’s opinions with his own findings and the overall medical evidence qualifies
as good cause to assign little weight to physician’s opinions). 6 Accordingly, the Court finds that
the ALJ’s decision to assign little weight to Dr. Estampador-Tan’s opinions is supported by
substantial evidence.
B. Step Two.
Claimant argues that the ALJ erred at step two of the sequential evaluation process because
she failed to explain why his depression, including his disabling Global Assessment of Functioning
(“GAF”) scores, did not constitute a severe impairment. Doc. No. 13 at 18. Claimant was treated
for depression at Park Place Behavioral Health Care between March 26, 2007 and May 11, 2009.
R. 806-22. Claimant was subsequently treated for depression by Dr. Makkena between February
19, 2010 and April 12, 2011. R. 912-22. During Claimant’s treatment for depression, he was
assessed with GAF scores ranging between 48 and 60. R. 806-15, 17-18, 22, 918, 20. 7
Claimant’s argument is unavailing for two principle reasons. First, the ALJ did not err at
step two because she found that Claimant suffers from severe impairments of degenerative disc
diseases, obesity, and right shoulder strain, and then proceeded to the next three steps of the
sequential evaluation process. R. 17-27. In Farrington v. Astrue, Case No. 3:09-CV-94-J-TEM,
2010 WL 1252684, at *4 (M.D. Fla. Mar. 29, 2010), the Court explained:
Articulation of the specific impairments included in the Step 2
finding, while preferable, however, is not essential for an adequate
finding under the Regulations. As the Eleventh Circuit has stated,
6
In this circuit, “[u]npublished opinions are not considered binding precedent, but they may be cited as persuasive
authority.” 11th Cir. R. 36-2.
7
GAF scores are used to report an individual’s overall level of functioning. Am. Psychiatric Ass’n, Diagnostic and
Statistical Manual of Mental Disorders 32 (4th ed. Text Revision, 2000). A GAF of 41-50 indicates: “Serious symptoms
(e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social,
occupational, or school functioning (e.g., no friends, unable to keep a job).” Id. at 34 (emphasis in original). A GAF
score of 51-60 reflects: “Moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR
moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers).”
Id. (emphasis in original).
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“the ALJ could not have committed any error at step two because he
found that [the claimant] had a severe impairment or combination of
impairments and moved on to the next step in the evaluation, which
is all that is required at step two.” Council v. Barnhart, 127 F.
App’x 473 (Table), No. 04–13128, at 4 (11th Cir. Dec. 28, 2004);
see also Jamison v. Bowen, 814 F.2d 585, 588 (11th Cir. 1987)
(stating that the finding of any severe impairment is enough to
satisfy the requirement of step two).
Id. Therefore, as long as an ALJ’s decision demonstrates consideration of the combined effect of
all of a claimant’s impairments, and if the ALJ finds a severe impairment at step two, the ALJ
satisfies the requirements of the regulations. Id. Here, the ALJ found severe impairments at step
two, proceeded to the remaining steps, and, in determining the Claimant’s residual functional
capacity, stated that she “has considered all symptoms and the extent to which these symptoms
can reasonably be accepted as consistent with the objective medical evidence and other
evidence[.]” R. 22. Accordingly, the ALJ satisfied the requirements of the regulations.
Second, the ALJ provided a detailed and accurate discussion as to why Claimant’s
depression does not constitute a severe impairment. R. 17-21. Specifically, the ALJ discussed
Claimant’s treatment records from Park Place Behavioral Health Care and Dr. Makkena, as well
as opinion evidence from Dr. Makkena (R. 920-22) and two non-examining state agency
psychologists, Dr. Butler (R. 878-90) and Dr. Prickett (R. 895-907). R. 17-19. Ultimately, the
ALJ assigned little weight to the opinions of Dr. Butler, Dr. Prickett, and Dr. Makkena. R. 1920. 8 Claimant does not challenge any aspect of the ALJ’s discussion of the medical evidence
regarding his depression or the weight assigned to the foregoing opinions. See Doc. No. 13 at 1819. Accordingly, the Court finds that the ALJ did adequately explain why Claimant’s depression
did not constitute a severe impairment.
8
Dr. Butler and Dr. Prickett both opined that there was insufficient evidence to assess Claimant’s impairments and
the effects of his impairments on his ability to function. R. 890, 907.
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As for Claimant’s GAF scores, the Court recognizes that the ALJ did not expressly address
those scores when considering whether Claimant’s depression is a severe impairment. See R. 1721. Courts in this district, however, recognize that GAF scores are of “questionable value in
determining an individual’s mental functional capacity.” Wilson v. Astrue, 653 F.Supp.2d 1282,
1293 (M.D. Fla. 2009) (quoting Gasaway v. Astrue, Case No. 8:06-CV-1869-T-TGW, 2008 WL
585113, at *4 (M.D. Fla. Mar. 3, 2008)). 9 Given their questionable value, courts have generally
declined to find reversible error where an ALJ does not expressly discuss a claimant’s GAF scores.
See, e.g., Bailey v. Astrue, Case No. 3:09-cv-383-J-JRK, 2010 WL 3220302, at *8-9 (M.D. Fla.
Aug. 13, 2010) (finding the ALJ’s failure to mention Plaintiff’s GAF scores did not require
remand); Smith v. Comm’r of Soc. Sec., Case No. 6:10-cv-1478-Orl-31KRS, 2011 WL 6217110,
at *6-7 (M.D. Fla. Nov. 1, 2011) report and recommendation adopted, 2011 WL 6217124 (M.D.
Fla. Dec. 14, 2011), aff’d, 486 F. App’x 874 (11th Cir. 2012) (stating “[b]ecause the ALJ indicated
that he carefully reviewed the records before him, and there is no indication that he overlooked or
misconstrued any GAF score, I recommend that the Court find that the ALJ did not err by failing
to include the GAF scores in his decision or by failing to state the weight he gave to each score.”);
see also Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005) (there is no rigid requirement that
an ALJ specifically refer to every piece of evidence in the record). In light of the ALJ’s thorough
discussion of the medical evidence pertaining to Claimant’s treatment of his depression, there is
no indication that she overlooked or misconstrued any of Claimant’s GAF scores. See R. 17-21.
Accordingly, consistent with the cases cited above, the Court finds that the ALJ did not error by
failing to expressly address Claimant’s GAF scores in her decision.
9
The Court notes that the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders does not
utilize the GAF scale, noting that it was recommended “the GAF be dropped . . . for several reasons, including its
conceptual lack of clarity . . . and questionable psychometrics in routine practice.” Am. Psychiatric Ass’n, Diagnostic
and Statistical Manual of Mental Disorders 16 (5th ed. 2013).
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In sum, the Court finds that the ALJ complied with the regulations, adequately explained
why Claimant’s depression did not constitute a severe impairment, and did not error by failing to
expressly address Claimant’s GAF scores in her decision. Accordingly, the Court finds that the
ALJ’s determination that Claimant’s depression is a non-severe impairment is supported by
substantial evidence. R. 17-21.
C. Hypothetical to the VE.
Claimant contends the ALJ’s hypothetical questions to the VE failed to contain all of
Claimant’s functional impairments. Doc. No. 13 at 18-20. Once a claimant proves that he or she
can no longer perform his or her past relevant work, as is the case here (R. 26), the burden shifts
to the Commissioner “to show the existence of other jobs in the national economy which, given
the claimant’s impairments, the claimant can perform.” Jones v. Apfel, 190 F.3d 1224, 1228-30
(11th Cir. 1999) (quoting Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987)). One of the
methods used to show that the claimant can perform other jobs is through the testimony of a VE.
Id. at 1229. In the Eleventh Circuit, the ALJ is required to pose hypothetical questions which are
accurate and which include all of a claimant’s limitations. Pendley v. Heckler, 767 F.2d 1561,
1563 (11th Cir. 1985). Where the ALJ relies significantly on the testimony of a VE to find that
other jobs exist in the national economy that a claimant can perform, but fails to include all the
claimant’s limitations in the hypothetical question, the Eleventh Circuit has held that the final
decision is not supported by substantial evidence. Id. at 1562 (quoting Brenem v. Harris, 621
F.2d 688, 690 (5th Cir. 1980)). 10 Once the Commissioner, by and through the ALJ, demonstrates
the existence of other work in the economy that the claimant can perform, the burden shifts back
10
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding
precedent all the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981.
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to the claimant to prove that he or she is unable to perform the jobs identified by the VE. Jones,
190 F.3d at 1228 (citing 20 C.F.R. § 416.920).
1. Depression.
Claimant argues that the ALJ erred by not including his depression in her hypothetical to
the VE. Doc. No. 13 at 19. Claimant, however, cites no medical or opinion evidence indicating
that his depression results in functional limitations. See Doc. No. 13 at 19. The Court, however,
notes that Dr. Makkena did complete a mental RFC assessment, in which he opined that Claimant
has poor concentration, hallucinations, poor sleep, talks to himself, is forgetful, and feels sad,
hopeless, and helpless. R. 922. The ALJ, however, assigned little weight to Dr. Makkena’s
opinions. R. 19. The ALJ explained in detail the basis for doing so. R. 19-20. Claimant does
not challenge any of the reasons the ALJ gave for assigning little weight to Dr. Makkena’s
opinions. See Doc. No. 13. Accordingly, the Court finds that the ALJ articulated good cause for
assigning little weight to Dr. Makkena’s opinions.
Since the ALJ properly rejected Dr.
Makkena’s opinions and the record contains no other evidence concerning functional limitations
stemming from Claimant’s depression, the Court finds that the ALJ did not error by omitting
Claimant’s depression from her hypothetical to the VE. See Crawford v. Comm’r of Soc. Sec.,
363 F.3d 1155, 1161 (11th Cir. 2004). (An ALJ is “not required to include findings in the
hypothetical that the ALJ ha[s] properly rejected as unsupported.”).
2. Overhead Reaching.
Claimant argues that the ALJ failed to explain why he was limited to frequent overhead
reaching, and that such a limitation is not supported by the record. Doc. No. 13 at 19. In light
of Dr. Estampador-Tan’s opinion that Claimant is limited to occasional reaching (R. 910), the
Court construes Claimant’s argument as suggesting that the ALJ should have limited him to
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occasional reaching. However, as discussed above, the ALJ properly assigned little weight to Dr.
Estampador-Tan’s opinions, and therefore was not required to include any of Dr. EstampadorTan’s opinions in her hypothetical to the VE. Crawford, 363 F.3d at 1161. Further, Claimant
cites no other medical or opinion evidence demonstrating that he is incapable of frequently
reaching overhead. See Doc. No. 13 at 19. Absent such a showing, the Court finds that the ALJ
did not error by limiting Claimant to frequent overhead reaching and including that limitation in
her hypothetical to the VE. See Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003) (“[T]he
claimant bears the burden of proving that he is disabled, and, consequently, he is responsible for
producing evidence in support of his claim.”) (citing 20 C.F.R. § 416.912(a), (c)).
3. Side Effects.
Claimant argues that the ALJ erred by not including the side effects of his medications in
her hypothetical to the VE.
Doc. No. 13 at 19-20.
In determining whether a claimant’s
impairment(s) limit his or her ability to work, the ALJ considers, among other things, the
claimant’s subjective symptoms, which include, the “type, dosage, effectiveness, and side effects
of any medication . . . taken to alleviate . . . pain or other symptoms[.]”
404.1529(c)(3)(iv), 416.929(c)(3)(iv).
20 C.F.R. §§
Claimant bears the burden of introducing evidence
supporting a claim that his symptoms, including any medication side effects, render him or her
disabled. Walker v. Comm’r of Soc. Sec., 404 F. App’x 362, 366 (11th Cir. 2010) (citing Ellison,
355 F.3d at 1276).
At the hearing, Claimant, who was represented, testified that his medications caused him
to be short tempered, dizzy, incoherent, shake, nauseous, and forgetful. R. 47-9. Claimant also
reported similar symptoms to Dr. Avila on several occasions, as well as addition side effects,
including fatigue, anxiety, hearing and vision problems, numbness, tingling, and weakness. R.
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779, 81, 84, 88. Aside from Claimant’s reports of side effects, Claimant cites no medical or
opinion evidence indicating that the side effects alone, or in combination with his other
impairments, are severe enough to be disabling. See Doc. No. 13 at 19-20; Walker, 404 F. App’x
at 366. Further, the ALJ found that Claimant’s subjective complaints “concerning the intensity,
persistence and limiting effects of [his] symptoms,” which encompass Claimant’s testimony about
his side effects, “are not credible to the extent they are inconsistent with the above [RFC]
assessment.” R. 24-6. In support of this finding, the ALJ indicated that some treatment records
contained no mention of side effects (R. 20) while others indicated that Claimant’s medications do
not cause any adverse or intolerable side effects (R. 24-5 (citing R. 834-47, 926-36)). Claimant
does not challenge the ALJ’s credibility determination (See Doc. No. 13), and the Court finds that
the ALJ articulated good cause for discrediting Claimant’s testimony and that her reasons for doing
so are supported by substantial evidence. See Foote, 67 F.3d at 1561-62 (reviewing court will not
disturb credibility finding with sufficient evidentiary support). Accordingly, the Court finds that
the ALJ did not error by omitting Claimant’s medication side effects from her hypothetical to the
VE. Crawford, 363 F.3d at 1161.
4. Fatigue.
Claimant argues that the ALJ erred by not including his fatigue in her hypothetical to the
VE. Doc. No. 13 at 19-20. At the hearing, Claimant testified that he is only capable of two or
three hours of sleep, which results in daytime fatigue. R. 53. Claimant also reported fatigue as
a result of trouble sleeping to Dr. Avila (R. 775) and Dr. Estampador-Tan (R. 834-47, 926-36).
Aside from Claimant’s reports of fatigue, Claimant cites no medical or opinion evidence indicating
that his fatigue alone, or in combination with his other impairments, results in any functional
limitations. See Doc. No. 13 at 19-20. Once again, the ALJ found that Claimant’s subjective
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complaints “concerning the intensity, persistence and limiting effects of [his] symptoms,” which
encompass Claimant’s testimony about his fatigue, “are not credible to the extent they are
inconsistent with the above [RFC] assessment.” R. 24-6. In support of this finding, the ALJ
noted that Claimant underwent an examination at the Central Florida Sleep Center, and that a
pulmonary function test demonstrated mild obstructive ventilatory impairment, no significant
response to bronchodilators or restrictive ventilatory impairment, unremarkable static lung
volumes, and a normal diffusion capacity. R. 24 (citing R. 828). Claimant does not challenge
the ALJ’s credibility determination (See Doc. No. 13), and the undersigned finds that the ALJ
articulated good cause for discrediting Claimant’s testimony and that her reasons for doing so are
supported by substantial evidence. See Foote, 67 F.3d at 1561-62. Accordingly, the Court finds
that the ALJ did not error by omitting Claimant’s fatigue from her hypothetical to the VE.
Crawford, 363 F.3d at 1161.
III.
CONCLUSION.
For the reasons stated above, it is ORDERED that:
1.
The final decision of the Commissioner is AFFIRMED;
2.
The Clerk is directed to enter judgment in favor of the Commissioner and to close
the case.
DONE and ORDERED in Orlando, Florida on March 18, 2014.
Copies to:
Counsel of Record
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The Court Requests that the Clerk
Mail or Deliver Copies of this order to:
The Honorable Janet Mahon
Administrative Law Judge
c/o Office of Disability Adjudication and Review
3505 lake Lynda Dr.
Suite 300
Orlando, FL 32817-9801
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