Stefanski v. Commissioner of Social Security

Filing 24

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 7/19/2016. (MDH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
KAREN LESLIEANN STEFANSKI,
Plaintiff,
v.

Case No: 6:15-cv-594-Orl-GJK

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

MEMORANDUM OF DECISION
Karen Leslieann Stefanski (the “Claimant”), appeals to the District Court from a final
decision of the Commissioner of Social Security (the “Commissioner”) denying her applications
for disability insurance benefits (“DIB”) and supplemental security income (“SSI”). Doc. No. 1.
Claimant argues the Administrative Law Judge (the “ALJ”) erred by: 1) assigning little weight to
Dr. Stephane Lavoie’s opinion; 2) failing to weigh all the medical opinions of record; 3) finding
her testimony concerning her pain and limitations not credible; and 4) relying on the vocational
expert’s (“VE”) testimony in finding she can perform other jobs in the national economy. Doc.
No. 22 at 21-26, 33-34, 36-39. Claimant argues the matter should be reversed for an award of
benefits or, in the alternative, remanded for further proceedings. Id. at 43. 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)). 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 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. 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. Lavoie’s Opinion.
On January 2, 2012, prior to Claimant’s alleged disability onset date of July 1, 2012, Dr.

Lavoie, an orthopedic surgeon, completed a “Medical Source Statement – Physical” (the
“Opinion”) essentially opining Claimant is unable to perform sedentary work. R. 309-11. The
ALJ assigned the Opinion little weight, primarily due to the improvement Claimant experienced
after back surgery performed by Dr. Lavoie on March 12, 2013. R. 21. Claimant argues the ALJ
“did not provide enough reasoning” to assign the Opinion little weight. Doc. No. 22 at 24.
Further, Claimant argues treatment records post-dating her surgery demonstrate she “continued to
have problems with her back[.]” Id. at 24-25 (citing R. 971-73, 1,082). The Commissioner
argues the ALJ articulated good cause supported by substantial evidence to assign the Opinion

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little weight. Id. at 29-32.
At step four of the sequential evaluation process, the ALJ assesses the claimant’s residual
functional capacity (“RFC”) and ability to perform past relevant work. Phillips, 357 F.3d at 1238
(citing 20 C.F.R. § 404.1520(a)(4)(iv)); see also 20 C.F.R. § 416.920(a)(4)(iv). “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). The ALJ is responsible for determining the claimant’s RFC. 20 C.F.R. §§
404.1546(c); 416.946(c). In doing so, the ALJ must consider all relevant evidence, including, but
not limited to, the medical opinions of treating, examining and non-examining medical sources.
20 C.F.R. §§ 404.1545(a)(1), (3); 416.945(a)(1), (3); Rosario v. Comm’r of Soc. Sec., 877 F. Supp.
2d 1254, 1265 (M.D. Fla. 2012).
In assessing medical opinions, the ALJ must consider a number of factors in determining
how much weight to give to each medical opinion, including: 1) whether the physician has
examined the claimant; 2) the length, nature, and extent of the physician’s relationship with the
claimant; 3) the medical evidence and explanation supporting the physician’s opinion; 4) how
consistent the physician’s opinion is with the record as a whole; and 5) the physician’s
specialization. 20 C.F.R. §§ 404.1527(c); 416.927(c). A treating physician’s opinion must be
given substantial or considerable weight, unless good cause is shown to the contrary. Winschel
v. Comm’r of Soc. Sec., 631 F.3d 1176, 1179 (11th Cir. 2011); see also 20 C.F.R. §§
404.1527(c)(2); 416.927(c)(2) (giving controlling weight to the treating physician’s opinion unless
it is inconsistent with other substantial evidence). “Good cause exists when the: (1) treating
physician’s opinion was not bolstered by the evidence; (2) evidence supported a contrary finding;

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or (3) treating physician’s opinion was conclusory or inconsistent with the doctor’s own medical
records.” Winschel, 631 F.3d at 1179 (quotation marks omitted).
On November 28, 2011, Claimant began treating with Dr. Lavoie complaining of back
pain. R. 321-22. 1 On examination, Claimant had full range of motion in her neck, diffuse
tenderness and pain in her lower back, negative straight leg raises, and no complaints of numbness
or tingling in her lower extremities.

Id. at 322.

The initial impression was spinal

spondylolisthesis at L4-5. Id. at 321.
On January 2, 2012, Dr. Lavoie issued his Opinion.

R. 309-11.

In it, Dr. Lavoie

indicated Claimant suffers from spinal stenosis and spinal spondylolisthesis at L4-5, and the pain
associated with those impairments is aggravated by daily activities, including walking and
standing. R. 309. Dr. Lavoie opined Claimant can sit for two (2) hours in an eight-hour work
day, and stand/walk for two (2) hours in an eight-hour workday. R. 310. Dr. Lavoie opined
Claimant requires a job that permits her to shift positions at will. Id. Dr. Lavoie opined Claimant
can occasionally lift/carry less than ten (10) pounds, and rarely lift/carry ten (10) pounds. Id. Dr.
Lavoie opined Claimant can occasionally twist, and rarely stoop, crouch/squat, climb ladders, and
climb stairs. Id. Dr. Lavoie opined Claimant also experiences depression and anxiety, and, as a
result, is only capable of low stress jobs. R. 311. Dr. Lavoie opined Claimant would be absent
from work for more than four (4) days each month due to her impairments. Id.
Claimant treated with Dr. Lavoie on several occasions following his Opinion, but before
her back surgery. On January 5, 2012, Claimant appeared for a follow-up. R. 317-18. Dr.
Lavoie reviewed Claimant’s MRI, which revealed moderate spinal stenosis at L4-5. R. 317. The
impression was spinal stenosis L4-5, spinal spondylosis, and facet arthritis. Id. Thereafter,

1

Claimant also complained of knee pain, but was treated by Dr. Mark Hollmann for her knee pain. See generally R.
315-22.

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Claimant underwent a series of epidural injections with some initial success. R. 315. On
February 1, 2013, Claimant complained that the injections were no longer effective, and that her
pain was aggravated by daily activities, such as standing and walking. R. 899. On examination,
Claimant had normal gait, no edema, negative straight leg raises, and some reduced range of
motion. R. 900-01. The impression was lumbosacral spondylosis and spondylolisthesis. R.
901. Claimant treated with Dr. Lavoie on several more occasions between February 1, 2013 and
March 12, 2013, the date of her back surgery. R. 889-95. The treatment notes from that period
demonstrate a gradual worsening of her back impairments leading to reports of worsening pain.
Id.
On March 12, 2013, approximately nine (9) months after the alleged disability onset date,
Dr. Lavoie performed a MIS decompression and fusion with percutaneous pedicle screw
instrumentation, interbody fusion with cage, allograft and local autograft at L4-5. R. 885, 892.
On March 27, 2013, Claimant reported she was “doing very well,” she was experiencing
minimal back pain and no leg pain, and she was able to increase her walking. R. 881. On
examination, Claimant was in mild distress, but had not gross motor deficits, and an x-ray revealed
good positioning of the hardware at L4-5. Id. On April 15, 2013, Claimant reported she
aggravated her back while bending over. R. 879. On examination, Claimant was in mild
distress, but had not gross motor deficits, and an x-ray revealed good positioning of the hardware
at L4-5. Id. Claimant saw Dr. Lavoie on three (3) more occasions between June of 2013 and
December of 2013. R. 867-70, 877-78. During these visits, Claimant reported she was “doing
very well,” she was experiencing minimal back pain and no leg pain, and she was able to increase
her walking. R. 867, 870, 877. In December of 2013, Claimant also reported that she was
experiencing minimal back pain while standing for long periods of time. R. 867. During this

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period, Claimant’s examinations revealed she was in mild distress, but had not gross motor deficits,
and x-rays revealed good positioning of the hardware at L4-5. R. 867, 870, 877.
On July 24, 2014, Claimant presented to Dr. Lavoie complaining of a constant “boring
pain” in her lumbar spine. R. 971. Claimant reported the pain is aggravated by daily activities.
Id. 2 On examination, Claimant had tenderness in the paraspinous, mild muscle spasms, left and
right lateral flexion was limited to twenty-five (25) degrees, and pain with forward flexion past
forty (40) degrees. R. 972-73. The examination also revealed a normal gait, no edema, negative
straight leg raises, and good positioning of the hardware at L4-5. Id. The impression was
lumbosacral spondylosis, back pain, lumbago, and thoracic pain. R. 973. Dr. Lavoie noted that
they will continue to treat the thoracic muscular pain conservatively, referred Claimant to physical
therapy, and encouraged her to increase activities as tolerated. R. 974. 3
At step two of the sequential evaluation process, the ALJ found Claimant suffers from the
following severe impairments: anxiety; depression; cervical/lumbar degenerative disc disease; and
spindle lesion of the left knee. R 13. At step four of the sequential evaluation process, the ALJ
found Claimant is capable of performing light work as defined by 20 C.F.R. §§ 404.1567(b) and
416.967(b), with the following additional limitations:
[A] 30 minute sit/stand option; no climbing of ladder, ropes, and
scaffolds; no more than occasional climbing of ramps and stairs,
stooping, crouching, crawling, bending, or kneeling; is limited to
simple tasks with little variation that take a short period of time to
learn (up to and including 30 days); is able to relate adequately to
co-workers and supervisors, but only occasional contact with the
general public; and is able to deal with changes in a routine work
setting.
R. 15. In reaching this RFC determination, the ALJ considered and discussed the medical

2

There is no indication what Claimant’s daily activities were as of July 24, 2014. R. 971.

3

This is the last treatment note from Dr. Lavoie in the record.

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evidence of record, including Dr. Lavoie’s treatment notes.

R. 16-21.

Further, the ALJ

considered Dr. Lavoie’s Opinion, assigning it little weight because:
[H]is opined severity is not supported by his own treatment records,
which document an improvement in symptoms following surgery
with no gross motor deficits and good position of the hardware and
interbody craft, or with the other medical evidence of record.
R. 21. Accordingly, the ALJ assigned Dr. Lavoie’s Opinion little weight for two reasons: 1) it
was inconsistent with his treatment notes following Claimant’s back surgery; and 2) it was
inconsistent with other medical evidence of record. Id. Claimant argues these reasons are “not .
. . enough” to assign Dr. Lavoie’s Opinion little weight. Doc. No. 22 at 24-25.
As an initial matter, the Court finds the second reason articulated by the ALJ is conclusory,
because the ALJ does not explain what other medical evidence of record is inconsistent with Dr.
Lavoie’s Opinion. R. 21. The Commissioner attempts to provide the explanation lacking from
the ALJ’s decision by highlighting portions of the medical record she (not the ALJ) maintains are
inconsistent with Dr. Lavoie’s Opinion. Doc. No. 22 at 30-31. However, the Court will not
affirm the Commissioner’s decision based on such post hoc rationalization. See, e.g., Dempsey
v. Comm’r of Soc. Sec., 454 F. App’x 729, 733 (11th Cir. 2011) (A court will not affirm based on
a post hoc rationale that “might have supported the ALJ’s conclusion.”) (quoting Owens v.
Heckler, 748 F.2d 1511, 1516 (11th Cir. 1984)). It was incumbent on the ALJ to identify the
other medical evidence of record that does not support Dr. Lavoie’s Opinion. See, e.g., Poplardo
v. Astrue, Case No. 3:06-cv-1101-J-MCR, 2008 WL 68593, at *11 (M.D. Fla. Jan. 4, 2008). That
did not occur with respect to the second reason articulated by the ALJ. Therefore, the Court finds
that reason does not support the ALJ’s decision to assign little weight to Dr. Lavoie’s Opinion.
In spite of the foregoing, the Court finds the ALJ’s determination that the Opinion is
inconsistent with Dr. Lavoie’s treatment records post-dating Claimant’s back surgery is good cause

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to assign little weight to Dr. Lavoie’s Opinion. To establish his or her eligibility for benefits, a
claimant must show “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
has lasted or can be expected to last for a continuous period of not less than 12 months[.]” 42
U.S.C. §§ 416(i)(1)(A), 423(d)(1)(A); 20 C.F.R. §§ 404.1505(a), 416.905(a).

Dr. Lavoie’s

Opinion was offered six (6) months prior to the alleged disability onset date of July 1, 2012. R.
309-11. On March 12, 2013, approximately nine (9) months after the alleged disability onset
date, Dr. Lavoie performed surgery on Claimant’s back. R. 885. The ALJ did not address
whether Dr. Lavoie’s treatment records preceding the surgery were inconsistent with his Opinion.
See R. 21. Instead, the ALJ found Dr. Lavoie’s treatment records following Claimant’s back
surgery were inconsistent with his Opinion, because those records demonstrate “an improvement
in symptoms following surgery with no gross motor deficits and good position of hardware and
interbody craft[.]” Id. This finding is supported by substantial evidence, as the treatment records
following Claimant’s back surgery demonstrate a consistent reduction in pain and improvement in
the ability to walk and stand. R. 867-70, 877-78, 881-82. The fact Claimant continued to
experience some issues with her back after surgery does not undermine the ALJ’s finding,
especially given Dr. Lavoie’s recommendations that she receive conservative treatment for her
back pain, she undergo physical therapy, and she increase her activities. R. 974. In light of the
foregoing, the Court finds the ALJ articulated good cause to assigned Dr. Lavoie’s Opinion little
weight, because Claimant failed to demonstrate the limitations in Dr. Lavoie’s Opinion lasted or
could be expected to last for a continuous period of not less than twelve (12) months.
B. Weighing Other Medical Opinions.
Claimant argues the ALJ failed to weigh the opinions of Drs. Kala Haynes, Mark

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Hollmann, Evans Amune, Mohamad Masri, Craig Jones, Shemin Saferall, and Nader Sawiris
(collectively, the “Physicians”). Doc. No. 22 at 25-26. Claimant maintains the Physicians’
“records/opinions” are “extremely important,” because they “clearly document that [she]
continued to experience significant problems, even after the surgery, including problems [with]
other conditions besides her back.” Id. at 26. The Commissioner argues the ALJ’s decision
reveals he considered the treatment records from the Physicians, and that none of the Physicians
offered any opinions concerning Claimant’s functional limitations.

Id. at 32.

Further, the

Commissioner argues Claimant has failed to demonstrate how the Physicians’ treatment records
undermine the ALJ’s RFC determination. Id.
Weighing the opinions and findings of treating, examining, and non-examining physicians
is an integral part of steps four and five of the sequential evaluation process for determining
disability. Rosario, 877 F. Supp. 2d at 1265.

In Winschel, 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 claimant’s physical and mental restrictions, the
statement is an opinion requiring the ALJ to state with particularity the weight given to it and the
reasons therefor.

Winschel, 631 F.3d at 1178-79 (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)).
The record does not contain any opinions from the Physicians. Indeed, Claimant fails to
cite a single document from any of the Physicians that would constitute an opinion under Winschel.

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Doc. No. 22 at 26. Thus, there were no opinions from the Physicians for the ALJ to weigh.
Further, Claimant baldly argues the Physicians’ “records/opinions” are “extremely important”
because they demonstrate she continued to “experience significant problems” after her back
surgery. Id. However, Claimant provides no explanation how the Physicians’ treatment records
undermine the ALJ’s RFC determination. Id. In light of the foregoing, the Court finds the ALJ
committed no error with respect to the Physicians.
C. Credibility.
Claimant maintains the record demonstrates she continually complained of pain during the
relevant period, and the ALJ failed to sufficiently consider those complaints in finding her
testimony “not entirely credible[.]” Doc. No. 22 at 36-38. The Commissioner argues the ALJ
articulated several specific reasons in support of his credibility determination, which are supported
by substantial evidence. Id. at 40-43.
In the Eleventh Circuit, subjective complaints of pain are governed by a three-part “pain
standard” that applies when a claimant attempts to establish disability through subjective
symptoms. By this standard, there must be: 1) evidence of an underlying medical condition and
either 2) objective medical evidence that confirms the severity of the alleged symptom arising from
the condition or 3) evidence that the objectively determined medical condition is of such severity
that it can be reasonably expected to give rise to the alleged pain. Holt v. Sullivan, 921 F.2d 1221,
1223 (11th Cir. 1991) (citing Landry v. Heckler, 782 F.2d 1551, 1553 (11th Cir. 1986)). “20
C.F.R. § 404.1529 provides that once such an impairment is established, all evidence about the
intensity, persistence, and functionally limiting effects of pain or other symptoms must be
considered in addition to the medical signs and laboratory findings in deciding the issue of

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disability.” Foote, 67 F.3d at 1561; 20 C.F.R. § 404.1529. 4

Thus, once the pain standard is

satisfied, the issue becomes one of credibility.
A claimant’s subjective testimony supported by medical evidence that satisfies the standard
is itself sufficient to support a finding of disability. Foote, 67 F.3d at 1561. “If the ALJ decides
not to credit a claimant’s testimony as to her pain, he must articulate explicit and adequate reasons
for doing so.” Id. at 1561-62; see also SSR 96-7p, 1996 WL 374186, at *2 (“It is not sufficient
for the adjudicator to make a single, conclusory statement that ‘the individual’s allegations have
been considered’ or that ‘the allegations are (or are not) credible.’”). A reviewing court will not
disturb a clearly articulated credibility finding with substantial supporting evidence in the record.
Foote, 67 F.3d at 1562. The lack of a sufficiently explicit credibility finding may give grounds
for a remand if the credibility is critical to the outcome of the case. Id.
Claimant contends that the ALJ’s credibility determination is encompassed in the following
paragraph:
After careful consideration of the evidence, I find that the claimant’s
medically determinable impairments could reasonably be expected
to cause the alleged symptoms; however, the claimant’s statements
4

Social Security Ruling 96-7p provides: “2. When the existence of a medically determinable physical or mental
impairment(s) that could reasonably be expected to produce the symptoms has been established, the intensity,
persistence, and functionally limiting effects of the symptoms must be evaluated to determine the extent to which the
symptoms affect the individual’s ability to do basic work activities. This requires the adjudicator to make a finding
about the credibility of the individual’s statements about the symptom(s) and its functional effects.

3. Because symptoms, such as pain, sometimes suggest a greater severity of impairment than can be shown by
objective medical evidence alone, the adjudicator must carefully consider the individual’s statements about symptoms
with the rest of the relevant evidence in the case record in reaching a conclusion about the credibility of the individual’s
statements if a disability determination or decision that is fully favorable to the individual cannot be made solely on
the basis of objective medical evidence.
4. In determining the credibility of the individual’s statements, the adjudicator 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. An individual’s statements about
the intensity and persistence of pain or other symptoms or about the effect the symptoms have on his or her ability to
work may not be disregarded solely because they are not substantiated by objective medical evidence.” SSR 96-7p,
1996 WL 374186, at *1 (July 2, 1996).

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concerning the intensity, persistence and limiting effects of these
symptoms are not entirely credible for the reasons explained in this
decision.
Doc. No. 22 at 38 (citing R. 16). Claimant argues that credibility determination “does not offer
enough reasoning to support the ALJ’s determination that [she] is not credible.” Id. at 38-39.
The ALJ’s credibility finding was not limited to the above paragraph. Following that
paragraph, the ALJ provided a more detailed explanation as to why he found Claimant’s testimony
not entirely credible. The ALJ explained:
In terms of the claimant’s alleged impairments, the evidence of
record documents symptoms and limitations; however, the objective
medical evidence, course and frequency of treatment, and noted
[activities of daily living] do not establish disabling medical
determinable impairments and symptoms.
R. 16. The ALJ subsequently provided more detail in his decision, explaining:
In sum, the above residual functional capacity assessment is
supported by the following. First, the claimant has described daily
activities, which are not entirely limited and are consistent with the
[RFC] established in this decision. At one point or another in the
record, the claimant has reported the following activities: taking care
of personal needs, preparing simple meals, doing household chores
with breaks, driving, shopping, being able to manage finances,
washing dishes, visiting with family/friends, watching television,
and reading.
Second, although the claimant has received various forms of
treatment for the allegedly disabling symptoms (orthopedic,
surgery, pain management, injections, physical therapy, primary
care, medication management), which would normally weigh
somewhat in the claimant’s favor, the record also reveals that the
treatment has been generally successful/relatively effective in
controlling those symptoms.
Furthermore, consultative
examinations do not document any objective medical findings that
would prevent the claimant from performing work activity within
the established RFC.
Another factor influencing the conclusions reached in this decision
is the claimant’s generally unpersuasive appearance and demeanor
while testifying at the hearing. It is emphasized that this

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observation is only one among many being relied on in reaching a
conclusion regarding the credibility of the claimant’s allegations and
the claimant’s [RFC]. I note the claimant portrayed no evidence of
pain or discomfort while testifying at the hearing. While the
hearing was short-lived and cannot be considered a conclusive
indicator of the claimant’s overall level of pain on a day-to-day
basis, the apparent lack of discomfort during the hearing is given
some slight weight in reaching the conclusion regarding the
credibility of the claimant’s allegations and the claimant’s [RFC].
R. 21-22 (citations omitted). Accordingly, the ALJ found Claimant’s testimony not entirely
credible due to her activities of daily living, the relative success of her treatments (e.g., her back
surgery), the findings on examination, and Claimant’s appearance and demeanor at the hearing.
R. 16, 21-22. Accordingly, the ALJ articulated specific reasons in support of his credibility
determination. Claimant does not directly challenge the reasons the ALJ articulated as support
for his credibility finding. See Doc. No. 22 at 36-39. 5 The foregoing reasons are supported by
substantial evidence, and support the ALJ’s credibility determination. See Foote, 67 F.3d at 156162 (reviewing court will not disturb credibility finding with sufficient evidentiary support).
Accordingly, the Court finds the ALJ’s credibility determination is supported by substantial
evidence.
D. Hypothetical Question to VE.
Claimant argues that the ALJ’s hypothetical question to the VE did not properly account
for the limitations in the medical opinions the ALJ failed to weigh, or those in Dr. Lavoie’s opinion.
Doc. No. 22 at 33-34. Consequently, Claimant argues the ALJ’s determination at step five of the
sequential evaluation process is not supported by substantial evidence. Id. The Commissioner
argues the ALJ’s hypothetical was consistent with his RFC determination, which was supported

5

Claimant does generally argue participation in daily activities of short duration, such as housework and light
cooking, does not undermine an individual’s claim of disability. Doc. No. 22 at 39. However, Claimant does not
specifically argue that each of the daily activities identified by the ALJ are insufficient to undermine her testimony
concerning the intensity, persistence, and functionally limiting effects of her impairments. See Id. at 36-39.

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by substantial evidence, and thus the ALJ did not error by relying on the VE’s testimony in
determining Claimant can perform other work in the national economy. Id. at 34-36.
In order for a VE’s testimony to constitute substantial evidence, the ALJ must pose a
hypothetical question which is accurate and includes all of a claimant’s limitations. Jones v.
Apfel, 190 F.3d 1224, 1229 (11th Cir. 1999). However, the ALJ need not include “each and every
symptom” of the claimant’s impairments, Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253,
1270 (11th Cir. 2007), or medical “findings . . . that the ALJ . . . properly rejected as unsupported”
in the hypothetical question, Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1161 (11th Cir.
2004).
At the hearing, the ALJ posed a hypothetical question to the VE that was consistent with
the ALJ’s RFC determination. Compare R. 15 with R. 45-46. In response, the VE testified
Claimant would not be able to perform her past relevant work, but would be capable for performing
other jobs in the national economy, such as mail clerk, routing clerk, and marker. R. 46. At step
five of the sequential evaluation process, the ALJ found the VE’s testimony to be consistent with
the Dictionary of Occupational Titles, and relied on the VE’s testimony in determining Claimant
can perform other work in the national economy. R. 23.
The success of Claimant’s final argument is contingent upon the success of Claimant’s first
and second arguments. As discussed above, the ALJ committed no error with respect to the
weight he assigned Dr. Lavoie’s opinion, nor his consideration of the Physician’s records. See
supra at pp. 2-10. Therefore, the ALJ’s hypothetical question to the VE, which is consistent with
the ALJ’s RFC determination, properly accounted for Claimant’s functional limitations.
Compare R. 15 with R. 45-46. Accordingly, the VE’s testimony provided substantial evidence

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that Claimant could perform other work in the national economy, and thus the ALJ did not err by
relying on the VE’s testimony.
III.

CONCLUSION.
For the reasons stated above, it is ORDERED that:
1.

The final decision of the Commissioner is AFFIRMED; and

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 July 19, 2016.

Copies to:
Counsel of Record
The Court Requests that the Clerk
Mail or Deliver Copies of this order to:
The Honorable Gregory J. Froehlich
Administrative Law Judge
c/o Office of Disability Adjudication and Review
SSA ODAR Hearing Office
Desoto Building #400
8880 Freedom Crossing
Jacksonville, FL 32256-1224

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