Barreto Quinones v. Commissioner of Social Security
MEMORANDUM OF DECISION: The final decision of the Commissioner is AFFIRMED pursuant to sentence four of 42 U.S.C. § 405(g); and the Clerk is directed to enter judgment for Commissioner and close the case. Signed by Magistrate Judge Daniel C. Irick on 2/12/2018. (RN)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
INGRID YESENIA BARRETO
Case No: 6:16-cv-1518-Orl-DCI
COMMISSIONER OF SOCIAL
MEMORANDUM OF DECISION
Ingrid Yesenia Barreto Quinones (Claimant) appeals the Commissioner of Social
Security’s final decision denying her applications for a period of disability, Social Security
Disability Insurance (SSDI), and Supplemental Security Income (SSI) payments.
Claimant argues that the Administrative Law Judge (ALJ) erred by: 1) failing to comply with
Social Security Ruling 00-4p; and 2) finding Claimant’s testimony concerning her limitations not
Doc. 22 at 17-30.
Claimant requests that the matter be remanded for further
administrative proceedings. Id. at 30. For the reasons set forth below, the Commissioner’s final
decision is AFFIRMED.
This case stems from Claimant’s applications for a period of disability, SSDI, and SSI
payments, protectively filed on March 19, 2013. Doc. 22 at 1. Claimant alleged a disability onset
date of May 15, 2011. Id. On April 6, 2015, the ALJ entered a decision finding that Claimant was
capable of performing a limited range of sedentary work, although she could not perform her past
relevant work as a nurse. R. 26-34. Thus, the ALJ concluded that Claimant was not disabled. R.
34. On June 22, 2016, the Commissioner’s Appeals Council denied Claimant’s request for review.
Doc. 22 at 2. On August 25, 2016, the Complaint was filed timely in this Court requesting that
this Court remand the case for further administrative proceedings. Doc. 1. This action is therefore
ripe for judicial review under 42 U.S.C. § 405(g).
THE ALJ’S DECISION.
The ALJ issued the operative decision on April 6, 2015. R. 22-34. The ALJ found that
Claimant had the following severe impairments: asthma, congenital hip dysplasia, chronic pain,
congenital foot deformity, and chronic leg length discrepancy. R. 26. The ALJ found that
Claimant did not have an impairment or combination of impairments that meets or medically
equals any listed impairment. Id.
The ALJ found that “claimant has the residual functional capacity [(RFC)] to perform less
than the full range of sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a).” Id.
Specifically, the ALJ imposed the following additional limitations within the RFC:
[Claimant] can lift and/or carry no more than 10 pounds. She can stand and/or walk
with normal breaks for a total of two hours in an eight-hour workday. She can sit
with normal breaks for a total of six hours in an eight-hour workday. She would
require a sit/stand option while remaining at the workstation on an at will basis (this
option means that the claimant could alternate sitting/standing while perform her
assigned duties). The claimant should avoid the frequent ascending and descending
of stairs. She should avoid frequent pushing and pulling motions with her lower
extremities within the aforementioned weight restrictions. The claimant, due to
mild to moderate pain and medication side effects, should avoid hazards in the
workplace such as unprotected areas of moving machinery, heights, ramps, ladders,
scaffolding, and on the ground unprotected areas of holes and pits. She can perform
each of the following postural activities occasionally: balancing, stooping,
crouching, kneeling, and crawling. The claimant should avoid the climbing of
ropes, scaffolds, and of ladders exceeding six feet. She should be allowed to elevate
either lower extremity to foot stool level at will.
R. 26-27.1 The ALJ, in light of this RFC, found that Claimant was not able to perform her past
relevant work as a nurse. R. 32. However, based upon the vocational expert’s testimony, the ALJ
found that Claimant was able to perform the following jobs existing in the national economy: food
and beverage clerk; addresser; and document preparer. R. 33. Thus, the ALJ found that Claimant
was not disabled from her alleged onset date, May 15, 2011, through the date of the decision, April
6, 2015. R. 33-34.
STANDARD OF REVIEW.
“In Social Security appeals, [the court] must determine whether the Commissioner’s
decision is supported by substantial evidence and based on proper legal standards.” Winschel v.
Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (quotations omitted).
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
Sedentary work is defined as “lifting no more than 10 pounds at a time and occasionally lifting
or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined
as one which involves sitting, a certain amount of walking and standing is often necessary in
carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and
other sedentary criteria are met.” 20 C.F.R. §§ 404.1567(a); 416.967(a).
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].’” Phillips v. Barnhart, 357
F.3d 1232, 1240 n.8 (11th Cir. 2004) (quoting Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th
A. Social Security Ruling 00-4p.
Claimant asserts that the ALJ failed to comply with Social Security Ruling (SSR) 00-4p.2
Doc. 22 at 17-18.
According to Claimant, conflicts existed between the testimony of the
Vocational Expert (VE) and the Dictionary of Occupational Titles (DOT), and the ALJ failed to
obtain a reasonable explanation for these conflicts. Id. However, Claimant failed to argue
explicitly either that the ALJ applied an incorrect legal standard or that the ALJ’s decision was not
based upon substantial evidence, and failed also to cite any legal authority supporting her request
of remand on the basis of the alleged violation identified by Claimant. See id. In response, the
Commissioner makes a three prong argument: (1) there was no conflict between the VE’s
testimony and the DOT; (2) even assuming a conflict, the VE provided a reasonable explanation;
and (3) even if there were a violation of SSR 00-4p, remand would not be appropriate because
Claimant has failed to establish prejudice. Doc. 22 at 18-21.
The Eleventh Circuit has stated that “Social Security Rulings are agency rulings published under
the Commissioner’s authority and are binding on all components of the Administration. Even
though the rulings are not binding on us, we should nonetheless accord the rulings great respect
and deference[.]” Klawinski v. Comm’r of Soc. Sec., 391 F. App’x 772, 775 (11th Cir. 2010)
At step four of the sequential evaluation process, the ALJ must determine a claimant’s RFC
and ability to do past relevant work. Phillips, 357 F.3d at 1238 (citing 20 C.F.R. §
404.1520(a)(4)(iv)). The ALJ may rely on a VE’s testimony in determining whether a claimant
can perform his or her past relevant work. Hennes v. Comm’r of Soc. Sec. Admin., 130 F. App’x
343, 346 (11th Cir. 2005) (citing 20 C.F.R. § 404.1560(b)(2)).3 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). The
ALJ, however, is not required to 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, Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155,
1161 (11th Cir. 2004), in the hypothetical question.
Further, the Eleventh Circuit has explained that “[i]f there is a conflict between the DOT
and the jobs identified by a VE in response to the hypothetical question, the testimony of the
vocational expert ‘trumps’ the DOT because ‘the DOT is not the sole source of admissible
information concerning jobs.’” Leigh v. Comm'r of Soc. Sec., 496 F. App'x 973, 975 (11th Cir.
2012) (quoting Jones v. Apfel, 190 F.3d 1224, 1229-30 (11th Cir. 1999)). Indeed, “[t]he DOT is
not comprehensive, . . . the SSA does not consider it to be dispositive [, and] a VE is ‘an expert on
the kinds of jobs an individual can perform based on his or her capacity and impairments.’” Id.
(quoting Phillips, 357 F.3d at 1240). Specifically, as to the SSR at issue here, the Circuit explained
SSR 00-4p states that when a VE provides evidence about the requirements of a job
or occupation, the ALJ has an affirmative responsibility to ask about any possible
conflict between that VE's testimony and the DOT. SSR 00-4p. When the VE's
In the Eleventh Circuit, “[u]npublished opinions are not considered binding precedent, but they
may be cited as persuasive authority.” 11th Cir. R. 36-2.
testimony is inconsistent with the DOT, the ALJ must resolve this conflict before
relying on the VE to determine whether the individual is or is not disabled.
Id. In Leigh, the VE did not alert the ALJ to any conflict between the DOT and the VE’s testimony,
and the Circuit found that, even if there were a conflict between the DOT and the VE’s testimony,
the ALJ did not err in simply relying upon the VE’s testimony. Id. (citing Jones, 190 F.3d at 122930 (explaining that the testimony of a VE trumps the DOT where there is an inconsistency)); see
also Hurtado v. Comm’r of Soc. Sec., 425 F. App’x 793, 795-96 (11th Cir. 2011) (even assuming
that an inconsistency existed, no error in relying on VE testimony because it trumps any
inconsistent provision of the DOT); Peeler v. Comm’r of Soc. Sec., 400 F. App’x 492, 496 (11th
Cir. 2010) (“The ALJ did not err in relying on Dr. Feldman's testimony even if it conflicted with
information in the DOT because under our precedent Dr. Feldman's testimony trumps the DOT.”);
Sollars-D'Annunzio v. Astrue, No. 5:08-CV-80-OC-GRJ, 2009 WL 302170, at *9-10 (M.D. Fla.
Feb. 6, 2009) (finding that “the law of the Circuit provides that where there is a conflict between
the testimony of the VE and the description in the DOT the testimony of the VE trumps the DOT”).
In addition, pursuant to SSR 00-4p, the ALJ is only required to resolve a conflict between
the DOT and the VE’s testimony if the ALJ is aware of that conflict. See Sollars-D'Annunzio,
2009 WL 302170, at *9 (“SSR 00–4p only requires the VE to resolve the conflict when he is made
aware of the conflict”). As the court in Sollars-D'Annunzio explained:
The ALJ has two obligations under SSR 00–4p with regard to reconciling any
conflict between the testimony of the VE and the DOT. First, “[w]hen a VE ...
provides evidence about the requirements of a job or occupation, the adjudicator
has an affirmative responsibility to ask about any possible conflicts between that
VE ... evidence and information provided in the DOT.” This means the ALJ must
ask if there is a conflict. The second requirement under SSR 00–4p provides that
“when there is an apparent unresolved conflict between VE ... evidence and the
DOT, the adjudicator must elicit a reasonable explanation for the conflict before
relying on the VE ... evidence to support a determination or decision about whether
the claimant is disabled.” This means that where the ALJ learns of a conflict he is
required to discuss and resolve the conflict.
Id. (internal citations omitted). In that case, the court found that “the ALJ complied with this
obligation by directing the VE to point out any conflicts,” based on the following colloquy:
ALJ: Let me request from you at the outset that if there are any conflicts with the
information that you provide with the Dictionary of Occupational Titles including
its companion publication, The Selected Characteristics of Occupations defined in
the revised Dictionary of Occupational Titles, that you advise me. Otherwise, I will
assume there are no such conflicts. Is that fair?
Yes, Your Honor.
Thus, the court found that “by expressly directing the VE to advise the ALJ of any
inconsistencies, the ALJ satisfied the first requirement of SSR 00-4p.” Id. If the VE does not
advise the ALJ of a conflict, and the ALJ is not otherwise aware of a conflict, there is no violation
of SSR 00-4p. See id.; see also Wright v. Comm'r of Soc. Sec., No. 6:12-CV-1640-ORL-31, 2014
WL 982626, at *9 (M.D. Fla. Mar. 12, 2014) (“The plain language of the SSR provides that the
ALJ should inquire on the record as to whether the testimony is consistent with the DOT and, when
there is an apparent unresolved conflict, the adjudicator must elicit a reasonable explanation for
the conflict before relying on the VE evidence.”) (emphasis in original).
Here, the ALJ expressly directed the VE to advise the ALJ of any conflict between the
VE’s testimony and the DOT, and the VE failed to make the ALJ aware of any such conflict.
Let me request from you at the outset that if there are any conflicts
with the information that you provide with the Dictionary of
Occupational Titles, that you so advise us.
R. 774-75. Thus, as in Sollars-D'Annunzio, the ALJ fulfilled his first obligation under SSR 00-4p.
But before moving on to consider whether the ALJ complied with his second obligation as
described in Sollars-D'Annunzio (i.e., “where the ALJ learns of a conflict he is required to discuss
and resolve the conflict”), the Court must necessarily find that there is a conflict for the ALJ to
resolve, and, if there is, that the ALJ was aware of such a conflict and discussed and resolved it.
As described in the following paragraphs, the Court finds that Claimant has not established that
there was a conflict between the VE’s testimony and the DOT that would give rise to the ALJ’s
obligation to discuss and resolve such a conflict. Nevertheless, if there were a conflict, the ALJ
sufficiently discussed that conflict and resolved it. And regardless, the ALJ did not err in relying
upon the VE’s testimony.
During the course of VE’s testimony, the ALJ asked hypothetical questions, including a
hypothetical question that involved a limited range of sedentary work, which resulted in the VE
testifying that a hypothetical claimant could perform the jobs of food and beverage clerk,
addresser, and document preparer. R. 774-804. The VE also testified that a hypothetical claimant
could perform those jobs with additional limitations, including a requirement that a hypothetical
claimant be permitted to sit and stand at will and a further requirement that a hypothetical claimant
be permitted to elevate the claimant’s feet to foot-stool level at will. Id. Claimant’s representative,
an attorney, attempted to cross-examine the VE at length about the VE’s basis for concluding that
a hypothetical claimant could perform those jobs with those additional restrictions. Id. In
particular, during the VE’s testimony about the sit/stand-at-will restriction, Claimant’s
representative questioned the expert in an attempt to establish that the VE had not actually
observed someone performing the identified occupations sitting and standing at will – the apparent
point being that: if the VE had not seen a particular class of employee performing the job with the
identified restrictions, then how could the VE opine that the hypothetical claimant could perform
those occupations with the listed restrictions. Id. Thus, the following exchange occurred, which
is cited to by Claimant in her brief:
Have you actually observed, with the food and beverage order clerk,
people being -- employees being able to switch from sitting to
standing at will?
I don't need to observe it. It's quite obvious.
Okay. If you haven't observed it and it's not delineated in the Bureau
of Occupational --
Okay. Well, I think -- I think I understand your point -- is that if a
hypothetical is posed to a vocational expert and the vocational
expert gives an opinion but hasn't specifically seen that event, that
becomes a basis, in your opinion, to challenge the vocational expert
because it's not may or may not be specifically addressed in the
Correct. And –
Okay. Well, at that point, the vocational expert is giving an opinion
-- based on his experience and hypotheticals. And your position is,
well, how do you know if it's not in the DOT, and the vocational
expert says, well, that's just my opinion, based on my 36 years of
experience in the field.
So then where do you go?
Then I'm wondering if she hasn't observed it and it's not in the DOT,
how she knows.
Okay. Well, that becomes an argument for weight, I think.
Now, the job of addresser that you gave, when is the last time that
you observed that job?
Probably about three years ago.
Okay. And have you observed employees having to alternate at will
between sitting and standing as an addresser?
Yes. Because they need to sometimes -- [inaudible] and go wait for
something or go get something –
They don't just sit there. They go and get something. They go - they
can stand and work. So yes, they're not sitting for eight hours.
What does an addresser do?
They're putting labels on envelopes, packages, all that stuff.
Okay. So you've actually observed -- how many employees have
you observed being able to alternate at will between sitting and
standing as an addresser?
One employee in your 36 years of experience?
No. We're talking about the last -- three years ago.
Okay. So --
You're asking her to go back 36 years --
Okay. So next is the document preparer. When is the last time that
you observed an employee performing that job?
That one would be about five years ago.
Okay. And have you observed any employee -- did you observe any
employees working as a document preparer being able to alternate
at will between sitting and standing?
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Okay. Okay. Thank you. No further questions.
R. 789-92. Just prior to that exchange, the VE, in another context, had explained that she relied
upon her “vocational rehab experience of 36 years” in testifying. R. 787.
Just after that exchange, the ALJ asked the VE to consider the same hypothetical, but with
the additional restriction of a hypothetical claimant being allowed to elevate the hypothetical
claimant’s lower extremities to foot-stool height at will. R. 793. The VE testified that a
hypothetical claimant could perform the three jobs at issue, and Claimant’s counsel then proceeded
to question the VE, and confirm that the VE had not personally observed a person performing
those three jobs while elevating their lower extremities to foot-stool height at will. R. 793-94. The
ALJ then questioned the VE as follows:
Do you have an opinion whether it's a requirement for a vocational
expert to personally observe all 12,000 of those positions [within the
DOT] as to whether it will accommodate a foot elevation?
I don't think it's necessary.
Okay. Do you know if it's a requirement of vocational experts in
No, it is not.
In the ALJ’s decision, the ALJ made the following findings in relation to SSR 00-4p when
making the determination that there are jobs that exist in significant numbers in the national
economy that Claimant can perform (i.e., the jobs of food and beverage clerk, addresser, and
Pursuant to SSR 00-4p, the vocational expert's testimony is consistent with the
information contained in the D.O.T., except for the consideration of the claimant's
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need for a sit/stand option and the need to elevate either leg to stool level at will,
which is not addressed in the D.O.T. That testimony is based on the vocational
expert's education and field experience, and is thus a reliable source of occupational
information appropriate for consideration under SSR 00-4p.
R. 33 (emphasis added). 5
Looking at the VE’s testimony as a whole and the ALJ’s findings in his decision, it appears
that the DOT simply does not contain any information as to whether the jobs at issue can be
performed with a sit/stand option or with a foot-stool elevation option. Certainly, the VE did not
advise the ALJ of any such conflict. Thus, it is not clear to the Court that there was, in fact, any
conflict between the VE’s testimony and the DOT. And Claimant cites no authority suggesting
that the lack of an explicit specification with the DOT is akin to a conflict, which seems to be the
argument Claimant is necessarily making here.
Regardless, even assuming a conflict, the VE provided a reasonable explanation and
complied with SSR 00-4p. During the course of the VE’s testimony, the VE made clear that she
relied upon her 36 years of vocational rehabilitation experience. Further, the VE testified that she
had seen at least one employee performing each of the three jobs at issue while alternating at will
between a sitting and a standing position. Thus, in his decision, the ALJ explained that the VE’s
opinion concerning the at-will restrictions “is based on the vocational expert's education and field
experience, and is thus a reliable source of occupational information appropriate for consideration
under SSR 00-4p.” R. 33. While Claimant’s attorney engaged in substantial cross-exanimation
concerning the VE’s personal observation of employees performing the jobs at issue with the atwill restrictions posed in the ALJ’s hypotheticals, the VE opined that it was not necessary for a
The ALJ made the identical findings when he determined that Claimant could not perform her
past relevant work, but those are not the findings that Claimant is challenging. See Doc. 22 at 18
(quoting the ALJ’s findings, with citation to R. 33).
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VE to personally observe employees performing jobs subject to specific limitations in order to
opine that the job could be performed with those limitations. The ALJ, taking that testimony into
consideration, relied upon the VE’s opinions. Thus, Court finds that the ALJ’s reliance upon the
VE’s testimony was reasonable and complied with SSR 00-4p.
Finally, even if there were a violation of SSR 00-4p, remand would not be appropriate
because Claimant has failed to argue – let alone establish – prejudice. Indeed, the VE’s testimony
trumps the DOT when there is a conflict. See Leigh, 496 F. App'x at 975. Thus, the ALJ did not
err in relying upon the testimony of the VE. Therefore, the ALJ did not err at step four of the
sequential process by purportedly failing to comply with SSR 00-4p.
Claimant argues that in considering her testimony concerning her pain and limitations, the
ALJ failed to apply the correct legal standards and made findings not supported by substantial
evidence. Doc. 22 at 21-25. The Commissioner essentially argues that the ALJ applied the correct
legal standard in making his credibility determination, which, the Commissioner asserts, is
supported by substantial evidence. Doc. 22 at 25-30.
A claimant may establish “disability through his own testimony of pain or other subjective
symptoms.” Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). A claimant seeking to
establish disability through his or her own testimony must show:
(1) evidence of an underlying medical condition; and (2) either (a)
objective medical evidence confirming the severity of the alleged
pain; or (b) that the objectively determined medical condition can
reasonably be expected to give rise to the claimed pain.
Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002). If the ALJ determines that the claimant
has a medically determinable impairment that could reasonably produce the claimant’s alleged
pain or other symptoms, the ALJ must then evaluate the extent to which the intensity and
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persistence of those symptoms limit the claimant’s ability to work. 20 C.F.R. §§ 404.1529(c)(1),
416.929(c)(1). In doing so, the ALJ considers a variety of evidence, including, but not limited to,
the claimant’s history, the medical signs and laboratory findings, the claimant’s statements,
medical source opinions, and other evidence of how the pain affects the claimant’s daily activities
and ability to work. Id. at §§ 404.1529(c)(1)-(4), 416.929(c)(1)-(4). “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.” Foote, 67 F.3d at 1561-62. “Credibility determinations are the province of the ALJ.”
Moore v. Barnhart, 405 F.3d 1208, 1212 (11th Cir.2005). The Court will not disturb a clearly
articulated credibility finding that is supported by substantial evidence. Foote, 67 F.3d at 1562.
The ALJ held a hearing in this case on January 14, 2015. R. 746-813. At the hearing,
Claimant, who was represented by counsel, testified that she worked as a licensed practical nurse
in a nursing home from 2007 to 2009. R. 762. As to her limitations, according to Claimant: she
was enrolled in a nursing program through 2014, but she dropped out because she could not sit for
four hours, as required (R. 763-64); there was a seven-inch discrepancy in the length of her legs,
which caused pain6 (R. 768); she did not wear an orthotic because Medicaid did not cover it (R.
777); she could sit for only 30 to 35 minutes, stand for 10 minutes, and lift no more than five
pounds (R. 765, 770); and she had to elevate her legs three times during the day for an hour each
time (R. 769). Further, Claimant testified that she had two children, ages 2 and 13, who lived with
her. R. 766. Both children had special needs, as one child was autistic and the other was bipolar.
R. 810. Claimant explained that although she had separated from her husband, he would still help
with the children, and Claimant’s friend also came over two to three times a week to help with the
The medical evidence of record does not support a seven-inch leg length discrepancy. According
to the record evidence, the discrepancy is generally described as 4-6 centimeters. See R. 451 (5
cm); 496 (1/2 in.); 512 (2 cm); 585 (5 cm); 598 (2-3 in.); 602 (5 cm); but see 449 (5 in.).
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children and cleaning. R. 769. Claimant testified that she could cook, but it took her longer than
normal because she needed to switch positions between sitting, standing, and lying down. R. 769.
In addition to the testimony at the hearing, Claimant completed two supplemental questionnaires.
R. 253-55; 267.
In his decision, the ALJ found that Claimant’s medically determinable impairments could
reasonably be expected to cause her alleged symptoms, but concluded that her statements
concerning the intensity, persistence, and limiting effects of her symptoms “are not entirely
credible for the reasons explained in this decision.” R. 27. First, the ALJ explained:
In terms of the claimant's alleged impairments, treatment records,
findings on physical examinations, and imaging reports do not show
the degree of ongoing abnormality that would preclude a wide range
of sedentary work.
Id. The ALJ then discussed the medical record evidence in detail.7 At the conclusion of that
discussion, the ALJ turned again to Claimant’s testimony, and explained his credibility
determination as follows in relation to that medical evidence:
While the claimant reported severe limitations due to asthma, congenital hip
dysplasia, chronic pain, congenital foot deformity, and chronic leg length
discrepancy, the medical evidence viewed in its entirety fails to show a disabling
level of impairment. Imaging revealed that her right leg was 4-6 centimeters shorter
than her left leg, a congenital deformity of her right foot, and there was moderate
dysplasia in her left hip (Exhibits 1F/19, 3F, and 16F). Yet, the record reflects
significant gaps in the claimant's history of treatment. Specifically, there is no
evidence of treatment from February 2013 to August 2014. In addition, the
claimant did not use an assistive device for ambulation, straight leg raises were
negative bilaterally, her strength was full at 5/5, and her sensation was intact on
physical examinations (Exhibits 3F, 7F, 11F, 16F, 17F, 20F, and 21F). There is also
no evidence that the claimant has undergone surgery or prolonged physical therapy
for the pain in her back, hips, legs, right foot, or right ankle during the period at
issue. Specifically, the record reflects that she last underwent left hip surgery in
The Court notes that Claimant has not challenged the ALJ’s consideration of the medical
evidence or the weight ascribed to any particular medical opinion. See Crawford v. Comm’r of
Soc. Sec., 363 F.3d 1155, 1161 (11th Cir. 2004) (per curiam) (refusing to consider an argument
that the claimant failed to raise before the district court).
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1993 (Exhibit 16F/8) and only attended physical therapy for approximately four
months in 2014 (Exhibit 14F). Moreover, the treatment record does not refer to
significant medication side effects in support of the claimant's allegations.
R. 29. After a brief discussion of Claimant’s asthma, the ALJ again turned to Claimant’s
testimony, this time discussing her activities of daily living and exertional limitations:
The undersigned also finds the claimant's reported daily activities are not strongly
consistent with complaints of disabling symptoms and limitations. For example,
the claimant reported she cared for her 13-year-old daughter and 2-year-old son,
drove a vehicle, bathed and dressed independently, prepared meals, did laundry,
and shopped (Exhibits 7E, 10E, 13E, 22E, and Hearing Testimony).
Overall, the claimant's allegations are not supported by the evidence to the extent
that she would be precluded from all work activity. While the claimant would
require work at the sedentary exertional level with a sit/stand option, limitations in
postural and environmental activities, and the need to elevate either leg to stool
level at will, those restrictions would reasonably accommodate the claimant's
R. 30. The ALJ then discussed the medical opinions contained within the record at length, and
weighed each opinion. Thereafter, the ALJ turned yet again to Claimant’s testimony, and made
the following observations:
The claimant is a very pleasant individual. At the hearing, she was well represented
by an experienced representative. By way of background, this fine individual
obtained a degree in nursing. Whether the degree was a LPN or RN cannot be
precisely determined. Nonetheless, the claimant worked for several years with
some success in the medical field, which is very commendable on her part but
which underscores the soundness of the residual functional capacity herein. The
claimant is further raising two small children, which again is very commendable
and wholesome. Childbirth was apparently normal and pregnancy issues were in
part a factor in leaving employment and moving to Florida to raise her new family.
Altogether (the arduous nature of being a student, the employment in the difficult
medical field, and childbirth issues), the claimant's history is remarkable,
commendable, and quite wholesome but detracts somewhat from overall credibility
within the context of disability. This outstanding claimant does face physical
challenges and the undersigned is not unsympathetic with her difficulties.
Nonetheless, this fine individual has significant potential.
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In asserting that the ALJ’s credibility determination was not supported by substantial
evidence, Claimant made four arguments.8 Doc. 22 at 22-24. The Court will discuss those
arguments seriatim in the following paragraphs, but, as an initial matter, the Court notes that only
with regards to the fourth argument does Claimant even reference her testimony. In other words,
with one exception, Claimant provides the Court with no indication of which testimony the ALJ
allegedly improperly deemed lacked sufficient credibility. It is axiomatic that the claimant bears
the burden of demonstrating that he or she is disabled. Ellison v. Barnhart, 355 F.3d 1272, 1276
(11th Cir. 2003).
The failure of Claimant to identify which testimony the ALJ allegedly
improperly discredited frustrates the Court’s review of Claimant’s arguments. As such, the Court
finds that Claimant’s first three arguments attacking the ALJ’s credibility determination – the
arguments that are divorced from any references to the portions of Claimant’s testimony that was
allegedly improperly discredited by the ALJ – do not provide a proper basis for the Court to reverse
the ALJ’s credibility determination. Regardless, the Court will discuss and consider each of
First, Claimant took issue with the ALJ’s comment that the record reflects significant gaps
in Claimant’s treatment history, asserting that gaps in treatment are not a proper basis to discredit
Claimant because it is “unclear” if Claimant had medical insurance during that period. Doc. 22 at
22 (citing to R. 29). Without citation to authority, Claimant asserts that the ALJ should have asked
In the heading of this section of her argument, and in the conclusion sentence of this section,
Claimant states that the ALJ failed to apply the correct legal standards. Doc. 22 at 22; 25.
However, besides those conclusory assertions, Claimant never actually made an argument that the
ALJ failed to apply the correct legal standards. Accordingly, the Court finds that Claimant waived
that argument. See Singh v. U.S. Att’y Gen., 561 F.3d 1275, 1278-79 (11th Cir. 2009) (explaining
that simply stating an issue exists, without further argument or discussion, constitutes
abandonment of that issue). Regardless, the Court has considered each of the four arguments made
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at the hearing whether Claimant had insurance during the periods of gaps in treatment. Id. In
response, the Commissioner explained that the ALJ properly noted a significant gap in treatment
from February 2013 to August 2014, and that the record evidenced another gap in treatment from
November 2011 to November 2012. Doc. 22 at 26. The Court agrees with the Commissioner that
significant gaps in treatment are properly considered in weighing Claimant’s credibility, and there
is precedent within this Circuit for the consideration of exactly that kind of record evidence. See
See Jarrell v. Comm’r of Soc. Sec., 433 F. App’x 812, 814 (11th Cir. 2011) (finding a gap in
medical treatment to be one of several factors that weighed against claimant’s credibility that pain
was debilitating). Further, there is no merit to Claimant’s assertion that the ALJ should have
inquired into the reasons for Claimant’s gaps in treatment. See, e.g., Pennington v. Comm'r of Soc.
Sec., 652 F. App'x 862, 871-72 (11th Cir. 2016) (finding that the claimant failed to demonstrate
that the ALJ erred by not inquiring about the gap in the claimant’s medical records). Indeed,
Claimant does not even affirmatively allege – let alone point to record evidence – that the reason
for the gaps in treatment was a lack of medical insurance or an ability to pay for treatment during
the gaps in treatment. As such, Claimant’s argument is supposition and does not provide a basis
to reverse the ALJ’s decision.
Second, Claimant takes issue with the ALJ’s determination that Claimant’s testimony was
not credible, in part, because she “did not use an assistive device for ambulation, straight leg raises
were negative bilaterally, her strength was full at 5/5, and her sensation was intact on physical
examinations.” Doc. 22 at 23 (quoting R. 29). Claimant asserts that the ALJ “cherry-picked”
evidence in the medical record, because the ALJ focused on certain evidence and disregarded
contrary evidence. Id. In support, Claimant points to three medical records: (1) a physical
examination that showed moderate paraspinal tenderness and significant tenderness over her
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buttocks (R. 451); (2) a physical examination that revealed mild to moderate paraspinal tenderness
(R. 449); and (3) a physical examination that stated, without further explanation, that Claimant’s
“subjective complaints are consistent with the objective medical findings (R. 514). Doc. 22 at 23.
In response, the Commissioner asserts that the record is replete with evidence supporting the ALJ’s
determination. Doc. 22 at 28 (citing R. 449, 451, 475, 586, 593, 610, 630, 636, 688). Of course,
the issue before the Court is not whether there is evidence to support Claimant’s testimony, but
whether there is substantial evidence to support the ALJ’s credibility determination. See Barnes
v. Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991) (“Even if we find that the evidence preponderates
against the Secretary’s decision, we must affirm if the decision is supported by substantial
evidence.”). Having reviewed the record evidence, the Court agrees with the Commissioner – the
ALJ’s determination in this regard is supported by substantial evidence, including the evidence
cited by the Commissioner. Further, what Claimant is asking the Court to do here is reweigh the
evidence, and the Court declines to do so. Moreover, the record evidence cited by Claimant is not
even inconsistent with the ALJ’s determination. Indeed, Claimant identifies no evidence that
actually contradicts the ALJ’s statement that Claimant “did not use an assistive device for
ambulation, straight leg raises were negative bilaterally, her strength was full at 5/5, and her
sensation was intact on physical examinations.” Doc. 22 at 23 (quoting R. 29). Thus, Claimant’s
argument is without merit.
Third, Claimant takes issue with the ALJ’s determination that Claimant’s testimony was
not credible, in part, because she had not undergone surgery or prolonged physical therapy during
the period at issue. Id. at 23-24. Without citation to legal authority, Claimant asserts that the ALJ
erred because Claimant wanted to undergo surgery (R. 689) and because she participated in
physical therapy for four months in 2014. Claimant also argues in a conclusory manner that the
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ALJ erred when he discredited her testimony “because the treatment record did not refer to
significant medication side effects in support of her claims.” Doc. 22 at 24 (citing R. 29). In
response, the Commissioner points out that Claimant declined surgery in 2013, as too invasive (R.
464), and that Claimant only completed four of 12 months of physical therapy (R. 539, 542-70).
Doc. 22 at 28-29. The Commissioner also argues that the lack of any further physical therapy
indicates conservative treatment and that Claimant chose not to take opioid medications because
she was caring for her young children. Id. at 29. Having reviewed the record evidence, the Court
agrees with the Commissioner – the ALJ’s determination in this regard is supported by substantial
evidence, including the evidence cited by the Commissioner. Further, what Claimant is again
asking the Court to do here is reweigh the evidence, and the Court declines to do so.
Fourth, and finally, Claimant takes issue with the ALJ’s determination that Claimant’s
testimony was not credible, in part, because of her daily activities. Doc. 22 at 24 (citing R. 30;
32). Citing to Lewis v. Callahan, 125 F.3d 1436, 1441 (11th Cir. 1997) (explaining that the court
did not believe that “participation in everyday activities of short duration, such as housework or
fishing, disqualifies a claimant from disability . . .”), Claimant notes that she testified at the hearing
that (a) “she had difficulty taking care of her children and received help from her son’s father and
a friend”; (b) “she was able to cook, but a meal that a person could cook in thirty minutes would
take her an hour and twenty minutes to complete”; and (c) it took so long for her to cook a meal
“because she needed to switch positions between sitting, standing, and lying down.” Doc. 22 at
24 (citing R. 768-69). Although this fourth argument represents the only time Claimant identified
the testimony the ALJ allegedly improperly discredited, there is no argument as to how, exactly,
the ALJ erred. In response, the Commissioner contends that the ALJ properly considered
Claimant’s activities of daily living, and that there is substantial evidence in support of the ALJ’s
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determination that those activities were not consistent with Claimant’s complaints of disabling
limitations. Id. at 29 (citing 20 C.F.R. §§ 404.1529(c)(3)(i), 416.929(c)(3)(i) (explaining daily
activities are a relevant factor when evaluating a claimant’s symptoms); Conner v. Astrue, 415 F.
App’x 992, 995 (11th Cir. 2011) (“A claimant’s daily activities may be considered in evaluating
and discrediting a claimant’s subjective complaints.”) (citation omitted).
In considering Claimant’s activities of daily living, the ALJ stated that those “activities are
not strongly consistent with complaints of disabling symptoms and limitations. For example, the
claimant reported she cared for her 13-year-old daughter and 2-year-old son, drove a vehicle,
bathed and dressed independently, prepared meals, did laundry, and shopped” R. 30 (citing
Exhibits 7E, 10E, 13E, 22E, and Hearing Testimony). The ALJ’s conclusions are supported by
substantial evidence, including by the evidence cited by the ALJ. Indeed, the record includes
evidence not only of Claimant’s activities related to domestic responsibilities, but also of other
strenuous physical activities, including walking distances (R. 365, 470, 513, 535), joining a gym
and doing walking and yoga for exercise (R. 470, 487), working out for one hour and doing
“cardio” six days a week (R. 483), obtaining a doctor’s recommendation to decrease cardio to 2030 minutes per day, start weight training, and try “short burst high intensity training” (R. 484), and
walking all day shopping (R. 634). Further, even if there was error, it is harmless, because
Claimant’s assertions that she had difficulty caring for her children, obtained help from the
children’s father and a friend to care for the children, and took a long time to cook meals because
she had to alternate between sitting and standing are not inconsistent with the RFC. See Wright v.
Barnhart, 153 F. App’x 678, 684 (11th Cir. 2005) (per curiam) (failure to weigh a medical opinion
is harmless error if the opinion does not directly contradict the ALJ’s RFC determination). Indeed,
the RFC provided for less than the full range of sedentary work activity and allowed for a plethora
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of exertional restrictions. The only possible restriction identified by Claimant not contained within
the RFC is Claimant’s testimony that she has to alternately lie down while cooking. And although
that restriction is not supported directly by any evidence of record, nonetheless, to the extent there
is any support for such a restriction, it is dealt with in the RFC’s allowance that Claimant be able
to elevate her feet at will.
In addition, the Court notes that the ALJ engaged in a lengthy discussion of Claimant’s
testimony throughout his decision. But Claimant did not attack all of the reasons the ALJ gave for
discrediting Claimant’s testimony: such as the ALJ’s determination that “the medical evidence
viewed in its entirety fails to show a disabling level of impairment” (R. 29) and the ALJ’s
determination that “[a]ltogether (the arduous nature of being a student, the employment in the
difficult medical field, and childbirth issues), the claimant's history is remarkable, commendable,
and quite wholesome but detracts somewhat from overall credibility within the context of
disability.” R. 32. The Court finds that both of those reasons cited by the ALJ were supported by
substantial evidence. And, even if some of the reasons cited by the ALJ were not supported by
substantial evidence, the fact that substantial evidence supports the decision as a whole is cause to
affirm that decision. See Wilson v. Comm’r of Soc. Sec., 500 F. App’x 857, 859-60 (11th Cir.
2012) (noting that remand was unwarranted even if the ALJ cited an improper finding to support
his adverse credibility determination because there was sufficient evidence within the record to
support the ALJ’s other reasoning for his adverse credibility determination); Ellison v. Barnhart,
355 F.3d 1272, 1275 (11th Cir. 2003) (holding that an ALJ's failure to consider a claimant’s
inability to afford treatment did not constitute reversible error when the ALJ did not rely primarily
on a lack of treatment to find that the claimant was not disabled); see also D’Andrea v. Comm’r of
Soc. Sec. Admin., 389 F. App’x 944, 948 (11th Cir. 2010) (per curiam) (rejecting argument that
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ALJ failed to accord proper weight to treating physician’s opinion “because the ALJ articulated at
least one specific reason for disregarding the opinion and the record supports it.”); see also Gilmore
v. Astrue, 2010 WL 989635, at *14-18 (N.D. Fla. Feb. 18, 2010) (finding that the ALJ’s decision
to discount a treating physician’s opinion was supported by substantial evidence, even though two
of the many reasons articulated by the ALJ were not supported by substantial evidence).
Most of Claimant’s assertions, though, are simply requests that this Court weigh the
evidence and find that it preponderates against the ALJ’s decision. However, this Court “‘may not
decide the facts anew, reweigh the evidence, or substitute [its] judgment for that of the
[Commissioner].’” Phillips, 357 F.3d at 1240 n.8 (quoting Bloodsworth, 703 F.2d at 1239). Here,
as set forth in the foregoing paragraphs, the Commissioner’s decision is supported by substantial
evidence. Thus, the Court must affirm even if the Court found that the evidence preponderates
against the Commissioner’s decision. Edwards, 937 F.2d at 584 n.3 (11th Cir. 1991). The Court
has reviewed the evidence of record and the ALJ’s decision concerning Claimant’s credibility, a
decision uniquely within the province of the ALJ, and the Court finds that the decision is supported
by substantial evidence.
For the reasons stated above, it is ORDERED that:
1. The final decision of the Commissioner is AFFIRMED pursuant to sentence four of
42 U.S.C. § 405(g); and
2. The Clerk is directed to enter judgment for Commissioner and close the case.
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DONE and ORDERED in Orlando, Florida on February 12, 2018.
Copies furnished to:
Counsel of Record
The Court Requests that the Clerk
Mail or Deliver Copies of this order to:
The Honorable Douglas A. Walker
Administrative Law Judge
c/o Office of Disability Adjudication and Review
SSA ODAR Hearing Ofc.
3505 Lake Lynda Dr
Orlando, FL 32817-9801
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