Weaver v. Commissioner of Social Security

Filing 18

OPINION AND ORDER. The decision of the Commissioner is AFFIRMED. The Clerk of the Court is directed to enter judgment consistent with this opinion and, thereafter, to close the file. Signed by Magistrate Judge Douglas N. Frazier on 2/21/2017. (CAS)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
LUTRICIA VONCELE WEAVER,
Plaintiff,
v.

Case No: 6:15-cv-1486-Orl-DNF

CAROLYN COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
_____________________________
OPINION AND ORDER
Plaintiff, Lutricia Voncele Weaver, seeks judicial review of the final decision of the
Commissioner of the Social Security Administration (“SSA”) denying her claim for Disability
Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). The Commissioner filed
the Transcript of the proceedings (hereinafter referred to as “Tr.” followed by the appropriate page
number), and the parties filed a joint legal memorandum setting forth their respective positions.
For the reasons set out herein, the decision of the Commissioner is AFFIRMED pursuant to §
205(g) of the Social Security Act, 42 U.S.C. § 405(g).
I.

Social Security Act Eligibility, Standard of Review, Procedural History, and the
ALJ’s Decision

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

impairment must be severe, making the claimant unable to do her previous work, or any other
substantial gainful activity which exists in the national economy. 42 U.S.C. §§ 423(d)(2),
1382(a)(3); 20 C.F.R. §§ 404.1505-404.1511, 416.905-416.911.
B. Standard of Review
The Commissioner’s findings of fact are conclusive if supported by substantial evidence.
42 U.S.C. § 405 (g). “Substantial evidence is more than a scintilla and is such relevant evidence
as a reasonable person would accept as adequate support to a conclusion. Even if the evidence
preponderated against the Commissioner’s findings, we must affirm if the decision reached is
supported by substantial evidence.” Crawford v. Comm’r, 363 F.3d 1155, 1158 (11th Cir. 2004)
(citing Lewis v. Callahan, 125 F.3d 1436, 1439 (11th Cir. 1997)); Martin v. Sullivan, 894 F.2d
1520, 1529 (11th Cir. 1990). In conducting this review, this Court may not reweigh the evidence
or substitute its judgment for that of the ALJ, but must consider the evidence as a whole, taking
into account evidence favorable as well as unfavorable to the decision. Martin v. Sullivan, 894
F.2d 1329, 1330 (11th Cir. 2002); Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995). However,
the District Court will reverse the Commissioner’s decision on plenary review if the decision
applied incorrect law, or if the decision fails to provide sufficient reasoning to determine that the
Commissioner properly applied the law. Keeton v. Dep’t of Health & Human Servs., 21 F.3d 1064,
1066 (11th Cir. 1994).

The Court reviews de novo the conclusions of law made by the

Commissioner of Social Security in a disability benefits case. Social Security Act, § 205(g), 42
U.S.C. § 405(g).
The ALJ must follow five steps in evaluating a claim of disability. 20 C.F.R. §§ 404.1520,
416.920. At step one, the claimant must prove that she is not undertaking substantial gainful
employment.

Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001), see 20 C.F.R. §

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404.1520(a)(4)(i). If a claimant is engaging in any substantial gainful activity, she will be found
not disabled. 20 C.F.R. § 404.1520(a)(4)(i).
At step two, the claimant must prove that she is suffering from a severe impairment or
combination of impairments. Doughty, 245 F.3d at 1278, 20 C.F.R. § 1520(a)(4)(ii). If the
claimant’s impairment or combination of impairments does not significantly limit her physical or
mental ability to do basic work activities, the ALJ will find that the impairment is not severe, and
the claimant will be found not disabled. 20 C.F.R. § 1520(c).
At step three, the claimant must prove that her impairment meets or equals one of
impairments listed in 20 C.F.R. Pt. 404, Subpt. P. App. 1; Doughty, 245 F.3d at 1278; 20 C.F.R. §
1520(a)(4)(iii). If she meets this burden, she will be considered disabled without consideration of
age, education and work experience. Doughty, 245 F.3d at 1278.
At step four, if the claimant cannot prove that her impairment meets or equals one of the
impairments listed in Appendix 1, she must prove that her impairment prevents her from
performing her past relevant work. Id. At this step, the ALJ will consider the claimant’s RFC and
compare it with the physical and mental demands of her past relevant work. 20 C.F.R. §
1520(a)(4)(iv), 20 C.F.R. § 1520(f). If the claimant can still perform her past relevant work, then
she will not be found disabled. Id.
At step five, the burden shifts to the Commissioner to prove that the claimant is capable of
performing other work available in the national economy, considering the claimant’s RFC, age,
education, and past work experience. Doughty, 245 F.3d at 1278; 20 C.F.R. § 1520(a)(4)(v). If
the claimant is capable of performing other work, she will be found not disabled. Id.

In

determining whether the Commissioner has met this burden, the ALJ must develop a full and fair
record regarding the vocational opportunities available to the claimant. Allen v. Sullivan, 880 F.2d

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1200, 1201 (11th Cir. 1989). There are two ways in which the ALJ may make this determination.
The first is by applying the Medical Vocational Guidelines (“the Grids”), and the second is by the
use of a vocational expert (“VE”). Phillips v. Barnhart, 357 F.3d 1232, 1239 (11th Cir. 2004).
Only after the Commissioner meets this burden does the burden shift back to the claimant to show
that she is not capable of performing the “other work” as set forth by the Commissioner. Doughty
v. Apfel, 245 F.3d 1274, 1278 n.2 (11th Cir. 2001).
C. Procedural History
Plaintiff protectively filed applications for DIB and SSI on November 21, 2011, alleging a
disability onset date of January 19, 2012. (Tr. 209-22, 238). Plaintiff’s claims were denied initially
and upon reconsideration. (Tr. 121-31, 137-47). Plaintiff requested a hearing and on January 7,
2014, a hearing was held before Administrative Law Judge (“ALJ”) Stephen C. Calvarese. (Tr.
31-70, 148-49). On January 31, 2014, the ALJ entered a decision finding that Plaintiff was not
disabled. (Doc. 9-25). Plaintiff filed a request for review of the decision and, on July 20, 2015,
the Appeals Council denied Plaintiff’s request for review. (Tr. 1-7, 8). Plaintiff initiated this case
by Complaint (Doc. 1) on September 11, 2015. The parties having filed a joint memorandum
setting forth their respective positions, this case is ripe for review.
D. Summary of the ALJ’s Decision
At step one of the sequential evaluation, the ALJ found that Plaintiff has not engaged in
substantial gainful activity since January 19, 2012, the alleged onset date. (Tr. 14). At step two,
the ALJ found that Plaintiff had the following severe impairments: degenerative disc disease,
degenerative joint disease, morbid obesity, dysfunction major joint, hypertension, congestive heart
failure, diabetes mellitus, asthma and hernia. (Tr. 14). At step three, the ALJ found that Plaintiff

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did not have an impairment or combination of impairments that meets or medically equals the
severity of any of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 15).
Before proceeding to step four, the ALJ found that, through the date last insured, Plaintiff
had the residual functional capacity (“RFC”) to “perform medium work as defined in 20 CFR
404.1567(c) and 416.967(c) except [s]he can frequently climb, balance, stoop, kneel, crouch and
crawl.” (Tr. 15). At step four, the ALJ relied on the testimony of a vocational expert to find that
Plaintiff was capable of performing her past relevant work as a “nurse assistant,” “teacher aide II,”
“bus driver, school” and “correctional specialist.” (Tr. 24). The ALJ concluded that Plaintiff had
not been under a disability from January 19, 2012, through the date of the decision, January 31,
2014. (Tr. 25).
II.

Analysis
Plaintiff raises four issues on appeal: (1) whether the ALJ applied the correct legal

standards to the opinion of Dr. Goll; (2) whether the ALJ applied the correct legal standards to the
opinion of Dr. Hatch; (3) whether the ALJ applied the correct legal standards to the opinion of Dr.
Thomson; and (4) whether the ALJ applied the correct legal standards to Plaintiff’s medication
side effects. The Court will address each issue in turn.
a) Whether the ALJ applied the correct legal standards to the opinion of Dr. Goll.
Plaintiff argues that the ALJ erred in according treating physician Stephen R. Goll’s
opinion dated May 16, 2012, no weight because the ALJ “improperly played doctor” and
arbitrarily substituted his own hunch or intuition for that of Dr. Goll’s opinion. (Doc. 16 p. 13-14).
Specifically, Plaintiff contends that the ALJ erred by noting that “additional testing subsequent to
Dr. Goll’s opinion does not support his limitations.” (Doc. 16 p. 13). In addition, Plaintiff

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contends that the ALJ’s reliance on the opinion of Dr. Gillespy, who examined Plaintiff
approximately four months before Dr. Goll, was improper. (Doc. 16 p. 14).
In response, Defendant argues that the ALJ properly weighed the opinion from Dr. Goll
and that substantial evidence supports his assessment of the opinion. (Doc. 16 p. 14). In addition,
Defendant argues that even if the ALJ had accorded great weight to Dr. Goll’s opinion, the ALJ’s
ultimate finding would not be changed, as the ALJ posed a hypothetical to the vocational expert
that reflected Dr. Goll’s opinion findings and the vocational expert testified that such an individual
could perform Plaintiff’s past work as a teacher’s aide. (Doc. 16 p. 19).
The record reflects that Plaintiff presented to Dr. Goll on April 4, 2012, for evaluation of
her neck pain with bilateral arm, pain, thoracic spine pain, and lower back pain with bilateral leg
pain. (Tr. 446). Dr. Goll’s impression was:
1. Cervical strain with bilateral upper extremity neuropathy/radiculopathy.
2. Thoracic strain.
3. Wedge compression deformity, probably chronic, T7.
4. Lumbar strain with bilateral lower extremity neuropathy.
5. Transitional L5-S1 level.
(Tr. 451). Dr. Goll opined that Plaintiff could not lift more than fifteen pounds and that she could
not perform repetitive bending. (Tr. 452).
On May 16, 2012, Dr. Goll opined that Ms. Weaver had achieved maximum medical
improvement and assigned permanent light duty restrictions with no lifting over twenty pounds
(Tr. 489). He assigned Ms. Weaver a three-percent impairment rating for her body as a whole (Tr.
489).
In his decision, the ALJ explained his reasoning for giving no weight to Dr. Goll’s May
2012 opinion as follows:

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Dr. Burkhart noted the claimant had a zero percent permanent impairment
rating in relation to her reported bilateral knee pain and he related to her
knees (Exhibit 7F/14, 9F/3-4). Additionally, in May 2012, Dr. Goll said
the claimant had a permanent impairment rating of three percent and
restricted her to light duty, specifically he said she could not lift greater
than 20 pounds (Exhibit 9F). However, Dr. Goll’s restriction of lifting no
greater than 20 pounds is not supported by the benign testing noted above
and is therefore given no weight. Furthermore, additional testing
subsequent to Dr. Goll’s opinion also does not support his limitations. In
August 2012, the claimant had an MRI of her cervical spine that showed
reversal of the upper cervical lordosis, disc bulge indents the anterior
thecal sac at C3-4, broad-based disc bulge indents the anterior thecal sac
at C4-6 and C6-7 and broad-based disc bulge indents the anterior thecal
sac at C7-T1. Neural foramina were narrowed bilaterally. She also had
NCV and EMG studies in August 2012 that were within normal limits and
showed no evidence of a left upper extremity peripheral nerve lesion or
left cervical radiculopathy (Exhibit 16F/50-56). Even though she
consistently complained of numbness/tingling and neck and back pain, the
claimant denied any of the symptoms during several emergency room
visits (Exhibit 3F/20-40, 41-50). Additionally, the two nerve conduction
studies she underwent were essentially normal and did not show evidence
of severe radiculopathy or neuropathy. Furthermore, Dr. Gillespy
examined the claimant prior to Dr. Goll and found that she could return to
a full-range of work with no limitations. (Exhibit 5F/1-2).
(Tr. 22).
“The Secretary must specify what weight is given to a treating physician’s opinion and any
reason for giving it no weight, and failure to do so is reversible error.” MacGregor v. Bowen, 786
F.2d 1050, 1053 (11th Cir. 1986) (citation omitted). The Eleventh Circuit has held that whenever
a physician offers a statement reflecting judgments about the nature and severity of a claimant’s
impairments, including symptoms, diagnosis, and prognosis, what the claimant can still do despite
his or her impairments, and the claimant’s physical and mental restrictions, the statement is an
opinion requiring the ALJ to state with particularity the weight given to it and the reasons therefor.
Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178-79 (11th Cir. 2011). Without such a
statement, “it is impossible for a reviewing court to determine whether the ultimate decision on

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the merits of the claim is rational and supported by substantial evidence.” Id. (citing Cowart v.
Shweiker, 662 F.2d 731, 735 (11th Cir. 1981)).
The opinions of treating physicians are entitled to substantial or considerable weight unless
good cause is shown to the contrary. Phillips v. Barnhart, 357 F.3d 1232, 1240 (11th Cir. 2004).
The Eleventh Circuit has concluded that good cause exists when the: “treating physician’s opinion
was not bolstered by the evidence; (2) evidence supported a contrary finding; or (3) treating
physician’s opinion was conclusory or inconsistent with the doctor’s own medical records. Id.
In this case, the Court finds that the ALJ showed good cause for giving Dr. Goll’s May 16,
2012 opinion “no weight.” With specific citations to the record, the ALJ explained that he
accorded “no weight” to Dr. Goll’s opinion because test results in the record did not support Dr.
Goll’s limitation findings, because Dr. Goll’s opinion was inconsistent with the record, particularly
with the opinions of other physicians, and because despite Plaintiff’s complaints of
numbness/tingling in her neck and back, Plaintiff denied those symptoms during multiple
emergency room visits. (Tr. 22). While Plaintiff alleges that the ALJ “improperly played doctor,”
the Court finds that the ALJ’s analysis shows a thorough analysis of the record and sound reasoning
for rejecting Dr. Goll’s opinion.
In any event, as Defendant notes, even if the ALJ were to have given great weight to Dr.
Goll’s opinion and adopted his limitation finding that Plaintiff was incapable of lifting over twenty
pounds, the ALJ’s decision would not be disturbed. At the administrative hearing, the ALJ posed
a hypothetical question to the vocational expert that contained greater limitations than contained
in Dr. Goll’s May 2012 opinion. (Tr. 66). Specifically, the ALJ asked the vocational expert to
consider an individual limited to only occasional or frequent lifting of 15 pounds and no repetitive
bending. (Tr. 66). The vocational expert testified that such an individual would still be able to

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perform Plaintiff’s past relevant work as a teacher aide. (Tr. 66). The Court finds no error in the
ALJ’s treatment of Dr. Goll’s opinion and affirms his decision to accord the opinion no weight.
b) Whether the ALJ applied the correct legal standards to the opinion of Dr. Hatch.
Plaintiff argues that the ALJ distorted the opinion of Robert S. Hatch, M.D., by pretending
that Dr. Hatch’s opinion did not support limitations and somehow supported the ALJ’s RFC
finding. (Doc. 16 p. 21). Plaintiff contends that Dr. Hatch’s opinion “strongly did support
significant limitations and conflicted with the ALJ’s findings.” (Doc. 16 p. 21). Defendant
contends that the ALJ properly considered Dr. Hatch’s opinion. (Doc. 16 p. 23).
The record shows that Plaintiff presented to Dr. Hatch on August 7, 2012, for an evaluation
after a motor vehicle accident from May 12, 2012. (Tr. 550-551). Dr. Hatch diagnosed Plaintiff
with left shoulder rotator cuff tendinopathy aggravated by the motor vehicle accident, cervical
strain after the motor vehicle accident, and left periscapular strain after the motor vehicle accident.
(Tr. 550).
On September 11, 2012, Plaintiff returned to Dr. Hatch and reported ongoing left shoulder
pain (Tr. 546). She reported that she had thought about her treatment options, but she did not want
surgery or another injection. (Tr. 546). Plaintiff acknowledged that her “left shoulder was
dramatically improved after one injection” but stated she wanted to hold off on any invasive
treatments as her shoulder seemed to show mild improvement. (Tr. 546).
On August 15, 2012, Plaintiff returned to Dr. Hatch with continued complaints of severe
left shoulder pain. (Tr. 549). Dr. Hatch noted that range of motion testing produced severe pain.
(Tr. 549). Dr. Hatch performed an ultrasound-guided injection in the left subacromial region. (Tr.
549). Several minutes after the injection, Ms. Weaver reported a significant decrease in her left
shoulder pain. (Tr. 549).

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On August 20, 2012, Plaintiff returned to Dr. Hatch. (Tr. 548). Plaintiff reported
improvement after left subacromial injection at her last clinic visit. (Tr. 548). Dr. Hatch noted
that Plaintiff described debilitating pain but that she was able to sleep through the night. (Tr. 548).
Dr. Hatch noted that physical exam showed Plaintiff demonstrating forward flexion of the left
shoulder to 120/130 degrees and abduction to about 80 degrees. (Tr. 548). Dr. Hatch noted left
upper extremity is grossly intact and that there was still global deltoid/rotator cuff tenderness. (Tr.
548).
On November 21, 2012, Dr. Hatch wrote a statement on Plaintiff’s treatment history and
impairments. (Tr. 543). He stated that she had a permanent shoulder injury related to her motor
vehicle accident with a 4% permanent injury rating according to the American Medical
Association (AMA) Guidelines. (Tr. 543). Dr. Hatch noted that Plaintiff’s left shoulder had
improved, but she “continued to complain of significant left shoulder symptoms as expected, i.e.
expectations due to the degree of tenderness, swelling and impingement with possible associated
rotator cuff tear.” (Tr. 543).
In his decision, addressed the evidence from Dr. Hatch as follows:
The claimant received conservative treatment for her allegedly severe
shoulder pain. She did undergo injections with Dr. Hatch, which she
reported to relieve her symptoms. However, in September 2012, she
refused any surgical or injection therapy to help relieve her reported
symptoms. She also reported, later in September 2012, that she was seeing
gradual improvements and that she was performing shoulder exercises at
home. In November 2012, Dr. Hatch said the claimant had reached
maximum medical improvement and that she had a 4% PPI (Exhibit 15F).
The claimant’s refusal of treatment indicates that her reported shoulder
pain is not as severe as she alleged. Although the claimant testified that
she can lift up to 15 pounds with her right arm and nothing with her left,
Dr. Hatch did not place any work-related limitations on the claimant even
though he found her at MMI with a 4% PPI rating. As such, the
undersigned finds that the claimant’s reported lifting restrictions are not
supported by the objective medical evidence and that she is able to
perform within the residual functional capacity as assessed herein.
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(Tr. 22-23).
Here, the Court finds that the ALJ’s treatment of the record as it pertains to Dr. Hatch does
not warrant remand. Despite her argument that Dr. Hatch’s treatment notes strongly support
significant limitations, Plaintiff does not identify any particular work-related limitation contained
in Dr. Hatch’s opinion that undermines the ALJ’s RFC finding. As Defendant notes, the American
Medical Association Guides is a method of assessing impairment and disability completely
different than the approach set forth in the SSA’s regulations. For example, while the AMA Guides
define disability as “activity limitations and/or participation restrictions in an individual with a
health condition, disorder, or disease,” the Social Security Act defines disability as the “inability
to engage in any substantia gainful activity by reason of any medically determinable physical or
mental impairment . . .” 42 U.S.C. § 423(d)(1)(A). A diagnosis or a showing of a deviation from
purely medical standards of bodily perfection or normality is insufficient to establish disability;
“instead, the claimant must show the effects of the impairment on her ability to work.” Wind v.
Barnhart, 133 F.App’x 684, 690 (11th Cir. 2005). Thus, although Dr. Hatch found Plaintiff to
have a permanent injury rating of 4%, it does not follow that the ALJ was required to include
additional limitations in his RFC finding. The ALJ was not incorrect in stating that “Dr. Hatch did
not place any work-related limitations on the claimant.”
c) Whether the ALJ applied the correct legal standards to the opinion of Dr.
Thomson.
Plaintiff argues that the ALJ erred by only giving “limited weight” to the opinion of nonexamining state agency physician Thomas O. Thomson, M.D., who opined that Plaintiff was
capable of performing a limited range of light work. (Doc.16 p. 25). Plaintiff contends that the
ALJ was not qualified to determine that Dr. Thomson’s opinion was not supported by the

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radiological testing evidence in the record because the ALJ is not a medical doctor. (Doc. 16 p.
26). Defendant contends that the ALJ properly weighed Dr. Thomson’s opinion and substantial
evidence supports his finding that the opinion should be accorded little weight. (Doc. 16 p. 26).
The record shows that Dr. Thomas reviewed Plaintiff’s record on August 17, 2012. Dr.
Thomas opined that Plaintiff was capable of performing light work. (Tr. 515). He opined that she
“[m]ay require cane for ambulating long distances or on uneven terrain.” (Tr. 515). Dr. Thomson
opined that she could occasionally climb, stoop, kneel, crouch, or crawl, but frequently balance.
(Tr. 517).
In his decision, the ALJ considered the opinion of Dr. Thomson as follows:
As for the opinion evidence, on August 17, 2012, Thomas O. Thomson, a
State agency consultant, reviewed the records available found the claimant
capable of a range of light work. The undersigned gives limited weigh tot
Dr. Thomson’s opinion as the totality of the evidence available at the
hearing level shows the claimant is capable of a wider range of work than
determined by Dr. Thomson (Exhibits 11F, 12F). Dr. Thomson appears
to base his assessment of the claimant’s functional capacity on that opined
by Dr. Goll, indicating the claimant could not lift greater than 20 pounds
(Exhibit 9F). However, the radiological testing of the claimant’s bilateral
knees and her cervical, thoracic and lumbar spine show only mild
degenerative changes and do not support a finding that the claimant is
capable of only a light range of work (Exhibits 7F, 9F, 10F). For example,
the claimant reported to Dr. Goll that she has tingling/numbness in her
arms and legs, bilaterally. However, nerve studies were all within normal
limits, except for a noted probable left tibial neuropathy at the left leg
(Exhibit 7F/26). Dr. Thomason also opined the claimant was limited to
occasional postural activities and indicated that she may need to use a cane
for ambulation over long distances or uneven terrain (Exhibit 12F).
However, Dr. Jacobsen noted in August 2012 that the claimant did not
require an assistive device for ambulation and that her gait and station
were within normal limits (Exhibit 16F/44). The objective medical
evidences does not support Dr. Thomson’s opinion or the claimant’s
allegations.
(Tr. 23).

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Here, the Court finds no error in the ALJ’s finding that Dr. Thomson’s opinion was entitled
to little weight. As a non-examining, reviewing physician, Dr. Thomson’s opinion was not entitled
to any deference. See McSwain v. Bowen, 814 F.2d 617, 619 (11th Cir. 1987). Nevertheless, the
ALJ addressed Dr. Thomson’s findings at length and provided good cause, supported by
substantial evidence, for discounting Dr. Thomson’s opinion. The ALJ appropriately considered
whether Dr. Thomson’s opinion was consistent with the record as a whole. See 20 C.F.R. §
404.1527(c). The ALJ explained that he rejected Dr. Thomson’s finding that Plaintiff may need a
cane for ambulation over long distance or uneven terrain because later records showed a cane was
not necessary. Specifically, the ALJ noted that Dr. Jacobsen noted in July 2012 that Plaintiff’s
gait and station were within normal limits and that Plaintiff was “able to ambulate without the use
of orthopedic supports or supplies.” (Tr. 598).
While Plaintiff may disagree with the ALJ’s findings, she has failed to show that the ALJ’s
opinion is not supported by such relevant evidence as a reasonable person would accept as
adequate support to a conclusion. Accordingly, the Court affirms the ALJ’s finding that Dr.
Thomson’s opinion was entitled to little weight.
d) Whether the ALJ applied the correct legal standards to Plaintiff’s medication side
effects.
Plaintiff contends that although the medical record shows that she has side effects from her
medications that impact her ability to perform work activities, the ALJ failed to make a finding as
to how these side effects impact her ability to work. (Doc. 16 p. 29-30). Plaintiff contends that
the evidence of record shows additional limitations due to these side effects but that the ALJ did
not account for them in his RFC finding. (Doc. 16 p. 30).
Defendant argues that the ALJ properly considered her subjective allegations regarding
side effects from her medication. (Doc. 16 p. 31). Defendant contends that the ALJ provided a
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detailed discussion of Plaintiff’s allegations regarding the side effects from her medications and
found that Plaintiff’s statements were not entirely credible. (Doc. 16 p. 31). Defendant argues
that the ALJ therefore implicitly found Plaintiff’s subjective complaints about her side effects as
not entirely credible. (Doc. 16 p. 31).
The record shows that Plaintiff was represented at the administrative hearing and both the
ALJ and her attorney asked her about the side effects of her medication. (Tr. 43-44, 53). The ALJ
asked Plaintiff which medications caused her to be sleepy and tired, how often she takes the
medications, and how long the side effects lasted. (Tr. 53-55). In his decision, the ALJ noted that
Plaintiff testified that her medications make her tired and sleepy, that she can only drive up to 15
miles because of the side effects, and that she naps during the afternoon due to the tiredness caused
by her medication, Lortab. (Tr. 16).
The ALJ has a duty to inquire into possible side effects of medications taken by a claimant
and to consider those side effects when determining the claimant’s RFC. Lipscomb v. Comm’r of
Soc. Sec., 199 F.App’x 903, 906 (11th Cir. 2006). The ALJ, however, is not required to inquire
into detail about side effects when a claimant is represented by counsel at a hearing. Cherry v.
Heckler, 760 F.2d 1186, 1191 n. 7 (11th Cir. 1985).
In this case, the Court finds that the ALJ committed no error in his treatment of Plaintiff’s
alleged side effects. The ALJ inquired into the side effects caused by Plaintiff’s medications and
discussed the evidence pertaining to Plaintiff’s side effects in his decision. As Defendant notes,
the ALJ found Plaintiff’s statements were not entirely credible, implicitly finding that her
complaints about the extent of her side effects not entirely credible. Thus, contrary to Plaintiff’s
claim that the ALJ failed to account for side effects caused by Plaintiff’s medications, the ALJ
properly considered the alleged limitations and determined not to include them in his RFC finding.

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While the ALJ did not specifically cite to every instance in the record showing Plaintiff’s
complaints of side effects, the ALJ’s decision shows that he examined the record as a whole,
including Plaintiff’s subjective complaints. The Court affirms the ALJ’s treatment of Plaintiff’s
alleged side effects due to medication.
III.

Conclusion

The decision of the Commissioner is AFFIRMED. The Clerk of the Court is directed to
enter judgment consistent with this opinion and, thereafter, to close the file.
DONE and ORDERED in Fort Myers, Florida on February 21, 2017.

Copies furnished to:
Counsel of Record
Unrepresented Parties

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