Hantzis v. Commissioner of Social Security

Filing 24

ORDER adopting 21 REPORT AND RECOMMENDATIONS re 1 Complaint filed by Kanella Karen Hantzis, overruling Objections, affirming decision of the Commissioner, and directing Clerk of Court to enter a final judgment in favor of Defendant Colvin, Acting Commissioner of Social Security and close this case. Signed by Judge Elizabeth A. Kovachevich on 7/22/2014. (JM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
KANELLA KAREN HANTZIS,
Plaintiff,
v.

CASE NO. 8:13-CV-1711 -T-17MAP

CAROLYN W. COLVIN,
ACTING COMMISSIONER
OF SOCIAL SECURITY,
Defendant.
/

ORDER
This cause is before the Court on:
Dkt. 21
Dkt. 22
Dkt. 23

Report and Recommendation
Objections
Response to Objections

In the Complaint, Plaintiff Kanella Karen Hantzis seeks review of the decision of
Defendant Commissioner of Social Security denying Plaintiff’s claim for disability
insurance benefits, pursuant to 42 U.S.C. Sec. 405(g). The assigned Magistrate Judge
has entered a Report and Recommendation (Dkt. 21), in which it is recommended that
the decision of the Commissioner be affirmed.
The alleged onset date of Plaintiff’s disability is July 1,1993, and the date of last
insurability is December 31,1998.
The Court has independently reviewed the pleadings and the record. Plaintiff
Hantzis has filed objections to the Report and Recommendation, and Defendant
Commissioner of Social Security has responded to Plaintiff’s objections.

Case No. 8:13-CV-1711-T-17MAP
I. Standard of Review
A. Report and Recommendation
The District Court reviews de novo the portions of the Report and
Recommendation or specified proposed findings to which an objection is made. The
District Court may accept, reject, or modify in whole or in part the report and
recommendation of a magistrate judge, or may receive further evidence, or may
recommit the matter to the Magistrate Judge with instructions.
B. Social Security Claim
This Court's role in reviewing claims brought under the Social Security Act is a
narrow one. The scope of its review is limited to determining: (1) whether there is
substantial evidence in the record as a whole to support the findings of the
Commissioner, and (2) whether the correct legal standards were applied. Richardson
v. Perales. 402 U.S. 389, 390, 401 91 S.Ct. 1420, 28 L. Ed. 2d 842 (1971); Lamb v.
Bowen. 847 F.2d 698, 701 (11th Cir. 1988). The Court may not decide facts, reweigh
evidence, or substitute its judgment for that of the Commissioner. See Bloodsworth v.
Heckler. 703 F.2d 1233,1239 (11th Cir. 1983). However, this limited scope does not
render affirmance automatic, for "despite [this] deferential standard for review of claims
. . . [the] Court must scrutinize [the] record in its entirety to determine reasonableness of
the decision reached." Bridges v. Bowen. 815 F.2d 622 (11th Cir. 1987); Lamb. 847
F.2d at 701. Moreover, failure to apply the correct legal standards is grounds for
reversal. Bowen v. Heckler. 748 F.2d 629, 634 (11th Cir. 1984).
With respect to the sequential analysis, the burden rests with the claimant
through the first four steps of the analysis, and shifts to the Commissioner at step five.
See Audler v. Astrue. 501 F.3d 446, 448 (5th Cir. 2007).
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II. Discussion
Plaintiff objects to the Report and Recommendation as follows:
1.

The ALJ did not apply correct legal standards to the opinions
of Plaintiffs treating physicians, Dr. Brennan and Dr. Ho;

2.

The ALJ did not consider the retrospective opinion of
Plaintiffs treating physician, Dr. Malhotra;

3.

The ALJ did not account for Plaintiffs functional limitations
resulting from her vertigo and migraine headaches in the
residual functional capacity assessment and hypothetical
questions to the vocational expert.

A. Weight Accorded to Opinions of Treating Physicians Brennan and Ho
Plaintiff objects that the assigned Magistrate Judge improperly reweighed the
evidence, and relies on inconsistencies he found to support the conclusion of the ALJ.
Plaintiff contends that the opinions of Plaintiffs treating physicians should have been
accorded substantial weight, the ALJ did not apply correct legal standards to those
opinions, and made findings not supported by substantial evidence. Plaintiff argues
that the ALJ ignored the fact that Dr. Brennan kept Plaintiff Hantzis in a no-work status
from September, 1994 through August, 1995, and that Dr. Brennan recommended “an
aggressive physical therapy program,” as conservative care had not proven helpful in
alleviating Plaintiff's symptomology. Plaintiff points out that, at Plaintiffs physical
therapy discharge on October 21,1997, Dr. Brennan notes that Plaintiff Hantzis made
some progress in terms of improved flexibility and range of motion but there was no
significant improvement in terms of “decreased or centralized subjective complaints or
improved function.” (Dkt. 14-14, p. 5). Plaintiff further argues that Dr. Brennan’s
opinion is consistent with Dr. Ho’s opinion.

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The Government responds that the assigned Magistrate Judge did not alter any
of the ALJ’s findings in the Report and Recommendation, and the assigned Magistrate
Judge did not rely on improper post hoc rationalization. The Government argues that
the Court should affirm the Commissioner’s decision, reviewing the entire record to
determine whether the Commissioner’s decision was supported by substantial
evidence.
In the Report and Recommendation, the assigned Magistrate Judge summarizes
the course of Plaintiffs treatment with Dr. Brennan and Dr. Ho, and the ALJ’s
evaluation of the medical opinions of Dr. Brennan and Dr. Ho as to Plaintiffs functional
losses, including inconsistencies between the opinions and the doctors’ own records,
and between the opinions and other evidence in the record. The “other evidence”
includes evidence that Plaintiff had subjective and objective improvement with physical
therapy, that extensive diagnostic tests revealed mostly negative findings and normal
results, that Plaintiff continued to work after her fall, although with reduced hours, and
Plaintiff had fair relief of her symptoms with over-the-counter medicine and prescription
medicine. The assigned Magistrate Judge notes other inconsistencies, such as findings
that Plaintiff had normal strength in her lower extremities, that Plaintiff was able to bend
as close as one or two feet from the floor, that Plaintiffs forward, backward and side
bending was within normal limits, and that upon examination at Bon Secours Hospital in
1997 Plaintiffs back and extremities were without tenderness, Plaintiff had 5/5 motor
strength, and normal gait. The assigned Magistrate Judge found that the ALJ had good
cause to discredit the opinions of Dr. Brennan and Dr. Ho.
The Court notes that, at Step Two, the ALJ determined that Plaintiff Hantzis had
the following severe impairments: 1) right L5 radiculopathy with bilateral lumbar
paraspinal myofascial pain syndrome; 2) degenerative disc disease at C5-6 with
resulting cervical spine pain; 3) tibia fracture; 4) vertigo and 5) migraine headaches. At
Step Three, the ALJ determined that, through the date last insured, Plaintiff did not
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have an impairment or combination of impairments that met or medically equaled one
of the listing impairments in 20 CFR Part 404, Subpart P, Appendix 1. The ALJ then
determined Plaintiffs residual functional capacity (“RFC”). After consideration of the
entire record, the ALJ found that Plaintiff Hantzis had the residual functional capacity to
perform the full range of light work as defined in 20 CFR 404.1567(b). The ALJ
considered all symptoms, and the extent to which Plaintiffs symptoms could reasonably
be accepted as consistent with the objective medical evidence and other evidence,
based on 20 CFR 404.1529 and SSRS 96-4p and 96-7p. The ALJ also considered
opinion evidence in accordance with 20 CFR 404.1527, and SSRs 96-2p, 96-5p, 96-6p
and 06-3p. At Step Four, the ALJ determined that Plaintiff has the residual functional
capacity to perform the requirements of her past relevant work.
The Court notes that, according to Dr. Brennan’s record of September 27,1994,
Plaintiff had not worked for a year prior to Dr. Brennan’s evaluation, and Dr. Brennan
suggested that Plaintiff refrain from work until further evaluation after termination of the
therapy program Dr. Brennan prescribed. (Dkt. 14-12, p. 30). Dr. Brennan continued
to suggest that Plaintiff refrain from work until termination of Plaintiffs therapy program.
By January 11,1995, based on a myelogram, it was determined that Plaintiff was not a
surgical candidate. (Dkt. 14-12, pp. 26-27). In general, conservative treatment for back
pain includes any treatment option that does not involve surgery. Dr. Brennan
consistently recommended conservative treatment, including exercise, weight loss and
pain management for Plaintiffs symptoms. When Dr. Brennan’s recommended an
aggressive physical therapy program, the recommendation remained a
recommendation for conservative treatment, albeit at a more intense level.

A course

of conservative treatment may be used to discount a doctor’s assessment of a plaintiff
as disabled. Wolfe v. Chater. 86 F.3d 1072,1078 (11th Cir. 1996).
On August 16,1995, Dr. Brennan opined that Plaintiff could use the services of a
rehab counselor, and imposed work restrictions of no lifting greater than 20 lbs., no
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Case No. 8:13-CV-1711-T-17MAP
frequent bending and twisting at the back, and one minute rest periods to perform
exercises when symptoms increase. On October 21,1997, at the conclusion of a
physical therapy program, Dr. Brennan opined that there was no significant
improvement in Plaintiffs subjective complaints or improved function. (Dkt. 14-14, pp.
4-5).
At Step Two of the analytical process, Plaintiff has the mild burden of showing
that Plaintiff has an impairment which has more than a minimal impact on Plaintiffs
ability to perform basic work activities. See Flvnn v. Heckler. 768 F.2d 1273 (11th Cir.
1985)(citing 20 C.F.R. Sec. 404.1521 and Bradvv. Heckler. 724 F.2d 914 (11th Cir.
1984)). As noted above, the ALJ identified Plaintiffs impairments which the ALJ
determined to be severe. Plaintiffs RFC is the most that Plaintiff can do despite
Plaintiffs severe impairments, which is assessed based on all relevant evidence in the
record. At Step Four, Plaintiff has the burden of showing Plaintiff cannot perform work
within the RFC.
In this case, in determining Plaintiffs RFC, the ALJ considered Plaintiffs selfreported symptoms, applying the two-step “pain standard,” first determining whether
there was an underlying medically determinable physical or mental impairment that
could reasonably be expected to produce Plaintiffs pain or other symptoms, and then
making a finding as to the credibility of Plaintiffs assertions as to the limiting effects of
pain or other symptoms, based on consideration of the entire record. The ALJ noted
Plaintiffs testimony as to the severity of Plaintiffs back pain, neck pain, numbness and
tingling her arms, severe dizziness and spinning, constant nausea, severe migraines,
depression, and difficulty in concentrating and focusing. The ALJ further noted
Plaintiffs testimony regarding Plaintiffs functional limitations and activities of daily
living. (Dkt. 14-2, pp. 23-24).

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The ALJ found that Plaintiffs medically determinable impairments could
reasonably be expected to cause the alleged symptoms, but Plaintiffs statements
concerning the intensity, persistence and limiting effects of her symptoms were not
credible to the extent they were inconsistent with the ALJ’s functional capacity
assessment that Plaintiff can perform the full range of light work.
In evaluating Plaintiffs alleged low back pain, the ALJ considered Plaintiffs
treatment from November, 1989 through June, 1997. The ALJ noted Plaintiffs
improvement after physical therapy, that many of the diagnostic tests had normal
results, that Plaintiff returned to work with reduced hours after the falls in 1989, and
that Plaintiff obtained some relief from her symptoms with over-the-counter and
prescription medications.
In reaching his conclusion as to Plaintiffs residual functional capacity to perform
a full range of light work, the ALJ reduced Plaintiffs residual functional capacity based
on the fact that Plaintiff has residual complaints and symptoms which make it difficult
for Plaintiff to perform certain exertional activities. After considering the objective and
subjective evidence, the ALJ reduced Plaintiffs residual functional capacity to
accommodate Plaintiffs impairments and associated symptoms that were medically
determined.
In accordance with SSR 96-2p, the ALJ considered but did not give controlling
weight to the opinions of Drs. Brennan and Ho. A treating physician's opinion will be
granted controlling weight if it is consistent with other medical evidence and is wellsupported by acceptable clinical and diagnostic techniques. 20 C.F.R. §
404.1527(d)(2). Where some medical evidence is found to be inconsistent with the
treating physician's opinion, the ALJ should give that opinion “substantial or
considerable” weight unless “good cause” is shown to the contrary. Lewis v. Callahan.
125 F.3d 1436,1140 (11th Cir. 1997). The Eleventh Circuit has found “good cause” to
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Case No. 8:13-CV-1711-T-17MAP
exist where: (1) the opinion was not bolstered by the evidence; (2) the evidence
supported a contrary finding; or (3) the opinion was conclusory or inconsistent with the
doctor's own medical records. Wriaht v. Barnhart. 153 Fed. Appx. 678, 684 (11th Cir.
2005). If the ALJ grants less than substantial or considerable weight to a treating
physician, the ALJ must clearly articulate the reasons for doing so. MacGregor v.
Bowen. 786 F.2d 1050,1053 (11th Cir. 1986).
In this case, the ALJ gave significant weight to the lifting restriction of Dr.
Brennan, specifically limited to 20 pounds at one point, and has factored this into the
RFC. The ALJ accorded little weight to the opinions of Drs. Brennan and Ho as they
pertained to restrictions on Plaintiff’s ability to sit, stand, bend and twist. In determining
the amount of weight to accord the opinions, the ALJ considered the examining
relationship, the treating relationship, supportability, consistency and specialization.
The ALJ found the opinions were not supported by the doctors’ own internal notes,
whereby improvement was documented in Plaintiff’s condition with continued
conservative management. The ALJ found the limitations were inconsistent with the
record when considered in its entirety. The ALJ further noted that the ultimate issue of
disability is a finding of fact reserved to the Commissioner.
The assigned Magistrate Judge found that the ALJ articulated his reasons for
affording the opinions of Dr. Brennan and Dr. Ho little weight, and that the ALJ’s
conclusions are supported by substantial evidence. The assigned Magistrate Judge
further found that the inconsistencies identified by the ALJ, along with other
inconsistencies, show that the medical record does not support the opinions of Dr.
Brennan and Dr. Ho as to Plaintiff’s functional loss, and that the ALJ had good cause to
discredit their opinions.
In this case, the ALJ identified the specific inconsistencies which underlie the
ALJ’s determination of Plaintiff’s RFC. The ALJ made an explicit finding as to Plaintiff’s
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Case No. 8:13-CV-1711-T-17MAP
credibility. The ALJ considered Plaintiffs testimony about pain and other non-exertional
limitations and linked his conclusion to substantial evidence. It is the role of the ALJ to
resolve conflicts in the evidence. The Court finds that substantial evidence supports
the findings of the Commissioner. After consideration, the Court overrules Plaintiffs
Objection as to this issue.
B. Weight Accorded to Retrospective Opinion of Dr. Malhotra
Plaintiff Hantzis was treated by Guarav Malhotra, M.D. in June and July, 2009,
ten years, more or less, after the date of last insurability, December 31,1998. During
that time, tests were conducted at Brooksville Regional Hospital. On July 24, 2009, Dr.
Malhotra provided a report dated July 24, 2009, which includes a summary of Plaintiffs
health conditions since 1989. Dr. Malhotra states:
I have been recently treating her and she has started developing more
conditions which are severe pain under both feet, the vertigo has
worsened and the patient developed chronic neck pain from degenerative
disc disease in C5-C6. The above mentioned conditions starting in 1989
are still present and with the new developed conditions are causing the
patient to be out of work for many years.
(Dkt. 14-7, p 15). The ALJ did not mention the opinion of Dr. Malhotra in his decision.
In the Report and Recommendation, the assigned Magistrate Judge found that the
ALJ’s failure to mention Dr. Malhotra’s opinion was harmless error:
“Other than opining that Plaintiffs conditions disabled her from working for
many years, a decision ultimately reserved to the Commissioner, Dr.
Malhotra offers no opinion as to what functional limitations, if any, were
caused by Plaintiffs injuries or which years he references that Plaintiff
was unable to work.”
(Dkt. 21, p. 10).
In the Objection, Plaintiff argues that 20 C.F.R. Sec. 404.1512(e)(1)(2010) and
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Case No. 8:13-CV-1711-T-17MAP
SSR 96-5p require the ALJ to recontact the medical source when the report from a
medical source contains a conflict or ambiguity, the report does not contain all the
necessary information, or does not appear to be based on medically acceptable clinical
and laboratory techniques. Plaintiff argues that the ALJ’s failure to state with
particularity the weight given to Dr. Malhotra’s opinion was not harmless error, as Dr.
Malhotra was the third treating physician to render an opinion that supported a finding
of disability. Plaintiff requests that this case be remanded for further proceedings.
The Government responds that new regulations went into effect on March 26,
2012; under the new regulations, recontacting a treating source is not required, but is a
matter within the ALJ’s discretion. The Government further argues that the change is in
a procedural rule, not substantive law, and the new regulations will apply on remand.
See Landaraf v. USI Film Prods.. 511 U.S. 244, 275 (1994)(changes in procedural rules
usually applied to matters arising before the enactment of changes without raising
concerns about retroactivity). The Government argues that, where the ALJ will not be
required to recontact Plaintiffs treating physician upon remand, a remand based on the
application of the old regulations would be a useless formality, and the Court should
affirm the Commissioner’s final decision.
A physician’s retrospective diagnosis is a medical opinion of a claimant’s
impairments that relates back to the covered period. Mason v. Commissioner of Social
Security. 430 Fed. Appx. 830, 834 (11th Cir. 2011)(citing Estok v. Apfel. 152 F.3d 636,
640 (7th Cir. 1998); Garvev v. Astrue. 2007 WL 4403525 *7 (N.D. Fla. Dec. 12,
2007)(citing Estok v Apfel. 152 F.3d 636, 639 (7,h Cir. 1998)). A retrospective diagnosis
may be considered only if it is corroborated by evidence contemporaneous with the
eligible period. Estok. at 640 (citations omitted).
Dr. Ho and Dr. Brennan treated Plaintiff for low back pain from 1992 through
1997. Dr. Ho and Dr. Brennan opined that Plaintiff has functional limitations due to
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Case No. 8:13-CV-1711-T-17MAP
Plaintiffs chronic low back pain. In July, 2009, Dr. Malhotra noted the following
conditions which started in 1989: chronic back pain, back spasms, ambulatory
problems, chronic pain in both legs. (Dkt. 14-8, p. 2). Dr. Malhotra treated Plaintiff in
June and July 2009 for newly developed problems of severe pain in both feet,
worsening vertigo and chronic neck pain from degenerative disc disease at C5-C6. Dr.
Malhotra opined that “the chronic conditions present since 1989 and the newly
developed problems are causing Plaintiff to be out of work for many years.” (Dkt. 14-8,
p. 2).
The Court notes the opinions of Dr. Ho and Dr. Brennan are consistent with each
other. Dr. Malhotra’s opinion is consistent with those opinions to the extent that, based
on the continuing presence of the chronic conditions since 1989, Dr. Malhotra opines
that Plaintiffs health conditions impair Plaintiffs ability to work. The Court has already
found that the ALJ had good cause to discount the opinions of Dr. Ho and Dr. Brennan,
based on inconsistencies between the opinions and the doctors’ own records, and the
record when considered in its entirety, such that the ALJ properly rejected the opinions
of Plaintiffs treating physicians as to some of the restrictions imposed, and as to the
opinion that Plaintiff was unable to work during the relevant time period. To the extent
that Dr. Malhotra’s opinion looks back to the time when Dr. Ho and Dr. Brennan treated
Plaintiff, good cause exists to discount the opinion of Dr. Malhotra, since it is not
supported by evidence within the relevant time period. The Court also notes that Dr.
Malhotra did not express an opinion as to Plaintiffs functional loss at a past specific
point in time. To the extent that Dr. Malhotra opined that Plaintiffs conditions disabled
her from working for many years, that opinion is not a medical opinion, but is a finding
of fact reserved to the Commissioner. “A statement by a medical source that [Plaintiff]
is ‘disabled’ or ‘unable to work’ does not mean that the [ALJ] will determine [Plaintiff] is
disabled.” See 20 C.F.R. Sec. 404.1527(d); Lewis v. Callahan. 125 F.3d 1436,1440
(11th Cir. 1997).

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An ALJ’s failure to strictly comply with the requirement to articulate substantial
evidence in the record to discount the opinion of a treating physician may be
considered harmless error. “When an incorrect application of the regulations results in
harmless error because the correct application would not contradict the ALJ’s ultimate
findings, the ALJ’s decision will stand.” Caldwell v. Barnhart. 261 Fed. Appx. 188,190
(11th Cir. 2008)(citations omitted).
In evaluating the necessity of a remand, the Court considers whether the record
reveals evidentiary gaps which result in unfairness or clear prejudice. Brown v. Shalala.
44 F.3d 931, 935 (11th Cir. 1995). The likelihood of unfair prejudice may arise if there
is an evidentiary gap that the claimant contends supports her allegations of disability.
14 at 936.
Dr. Malhotra’s opinion was intended to support Plaintiffs claim that Plaintiff
suffered from severe chronic low back pain that continued throughout the period of
insurability to 2009. The Court has determined that there was good cause to discount
the weight accorded to the opinions of Dr. Brennan and Dr. Ho, and the ALJ determined
that Plaintiffs claim of continuous pain and other non-exertional impairments was not
entirely credible. In this case, there is no evidentiary gap to be filled by Dr. Malhotra’s
opinion; the omission of any evaluation of Dr. Malhotra’s opinion did not prejudice
Plaintiff.

The Court finds that the omission of Dr. Malhotra’s from the decision of the

ALJ is harmless error, and overrules Plaintiffs objection as to this issue.
C. Functional Limitations of Vertigo and Headaches in RFC and
Hypothetical Posed to VE
1. RFC
At Step Two, the ALJ included vertigo and headaches in the impairments he
determined to be severe. In determining Plaintiffs RFC, after considering Plaintiffs
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testimony as to Plaintiffs functional limitations and activities of daily living, and after
considering the opinion evidence, the ALJ found that Plaintiffs medically determinable
impairments could reasonably be expected to cause the alleged symptoms, but
Plaintiffs statements concerning the intensity, persistence and limiting effects of the
symptoms were not credible to the extent that Plaintiffs statements were inconsistent
with the ALJ’s residual functional capacity assessment that Plaintiff has the residual
functional capacity to perform a full range of light work. The ALJ further noted Plaintiffs
low back pain improved with physical therapy, that the results of various diagnostic tests
were normal, and that prescription medicine was prescribed which afforded Plaintiff fair
relief.
As to vertigo and migraine headaches, the ALJ states:
In terms of the claimant alleged vertigo and migraine headaches, the
medical records reveal evidence of an impairment which would
reasonably be expected to result in some limitation. However, the record
fails to reveal evidence of medically documented objective findings
consistent with the alleged severity of [Plaintiffs] symptoms and
limitations.
The ALJ considered Plaintiffs treatment for headaches and dizziness: 1) treatment at
Beaumont Hospital in March, 1995 for a headache; an analgesia was prescribed; a CT
scan was normal; 2) Dr. Ho’s (neurologist) opinion in May, 1995 that Plaintiffs
headaches were likely stress-related; 3) treatment in March, 1997 in the emergency
room (Bon Secours) for complaints of headache and vertigo; no evidence of
abnormality upon examination; an EKG and CT scan were normal; noted that Plaintiff
had multiple vague complaints and sometimes contradicted her own history 5) Dr.
Policherla’s (neurologist) examination and diagnosis of vascular complicated
headaches of June, 1997, for which Inderal was prescribed; and 6) Dr. Wetzel’s (family
practice) treatment in June, 1997; multiple somatic complaints noted; Plaintiffs habit of
contradicting herself noted.
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The Court notes that Plaintiff was seen in the Emergency Room of Bon Secours
Hospital by Dr. Jennilyn Wetzel on March 26,1997, and was seen by Dr. Wetzel at an
office visit in June, 1997. (Dkt. 14-14, Ex. 16-F). In the records of the office visit of
June 24,1997, Dr. Wetzel notes it was difficult to obtain a chronological history and
establish a timeline, and Plaintiff had a habit of contradicting herself. (Dkt. 14-14, pp.
22-27). Plaintiff returned to the Emergency Room of Bon Secours Hospital on March
27,1997, complaining of dizziness, for which Antivert was prescribed (Dkt. 14-11, Ex. 9F). At that time Plaintiff reported intermittent headaches once a month, for which
Plaintiff took Tylenol, which started after Plaintiff was given epidural injections for back
pain. (Dkt. 14-10, Ex. 7F, diagnosing tension headaches). Dr. Wetzel referred Plaintiff
to Dr. Policherla, a neurologist, for further evaluation. Dr. Policherla prescribed Inderal
for vascular complicated migraines. (Dkt. 14-11, Ex. 10F). The Court also notes that
Plaintiff has described her multiple complaints, and explained why it is hard for doctors
to treat Plaintiff, in correspondence to the Social Security Administration dated 3/26/12
(Dkt. 14-6, Ex. 16E).
When a claimant attempts to establish disability through her own testimony of
subjective pain, the “pain standard” applies. Dver v. Barnhart. 395 F.3d 1206,1210
(11th Cir. 2005). The pain standard requires: 1) evidence of an underlying medical
condition and 2) objective medical evidence that confirms the severity of the alleged
pain arising from that condition or 3) that the objectively determined medical condition is
of such a severity that it can be reasonably expected to give rise to the alleged pain.
The “pain standard” applies to complaints of subjective conditions other than pain. Holt
v. Sullivan. 921 F.2d 1221 (11th Cir. 1991). When coupled with medical evidence which
satisfies the pain standard, a claimant’s testimony of subjective pain is, in and of itself,
sufficient to sustain a disability determination. Hale v. Bowen. 831 F.2d 1007,1011
(11th Cir. 1987).

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The ALJ determined that medical records showed evidence of an impairment
which would reasonably be expected to result in some limitation, but did not reveal
evidence of medically documented objective findings consistent with the alleged
severity of Plaintiffs symptoms and limitations. In the absence of objective medical
evidence which confirms the severity of Plaintiffs impairment, the ALJ was required to
evaluate the intensity and persistence of Plaintiffs symptoms, in light of all available
evidence, to determine how Plaintiffs symptoms limited her capacity for work, and then
to determine the extent to which Plaintiffs symptoms limited Plaintiffs capacity for work.
Pursuant to 20 C.F.R. Sec. 404.1529(c)(4), the ALJ properly weighed the
inconsistencies in the evidence, including the extent of conflicts between Plaintiffs
testimony and the rest of the evidence. The ALJ credited Plaintiffs testimony as to the
presence of back pain, and accounted for this by reducing Plaintiffs RFC to a full range
of light work. The ALJ did not credit Plaintiffs testimony as to the severity Plaintiffs
headaches and dizziness, and alleged resultant inability to engage in any work activity
on a sustained basis. The inconsistencies between Plaintiffs testimony and other
evidence are obvious.
The existence of Plaintiffs headaches and dizziness is not at issue, given that at
Step Two, the ALJ found these impairments to be severe. This case does not involve
reliance on objective medical evidence of pain or other subjective complaints, but on
the credibility of Plaintiffs testimony about the intensity and persistence of Plaintiffs
symptoms, in light of inconsistencies with medical evidence and other evidence. After
consideration, the Court finds that the ALJ properly determined Plaintiffs RFC, and
overrules Plaintiffs objection as to this issue.
2. Hypothetical
In order for a vocational expert’s testimony to constitute substantial evidence, the
ALJ must pose a hypothetical question which comprises all of a claimant’s impairments.
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Wilson v. Barnhart. 284 F.3d 1219,1227 (11th Cir. 2002). However an ALJ is “not
required to include findings in the hypothetical that the ALJ has properly rejected as
unsupported.” Crawford v. Commissioner of Social Security. 363 F.3d 1155,1161 (11th
Cir. 2004). The ALJ is not required to include in his hypothetical any medical conditions
which are controlled by medication. McSwain v. Bowen. 814 F.2d 617, 619-20 (11th
Cir. 1987).
In this case, the VE classified Plaintiff’s past work as “light” work. (Dkt. 14-2, p.
67). The VE testified as to the number of jobs of that type in the national economy, and
identified other jobs in that category. The VE further testified as to the number of jobs
in the “sedentary” category in the national economy, and identified other jobs in the
“sedentary” category. (Dkt. 14-2, p. 68). In the hypothetical posed to the VE, the ALJ
asked the VE to assume that the ALJ found Plaintiffs testimony to be fully credible, the
impairments alleged were supported by substantial medical evidence, that Plaintiff in
fact has all the limitations described in her testimony, and asked what impact those
assumptions have on jobs Plaintiff has performed in the past, and what impact those
assumptions would have on Plaintiffs ability to perform a range of light work and a
range of sedentary work. The VE testified that Plaintiffs impairments would preclude
Plaintiff from performing light work or sedentary work. (Dkt. 14-2, p. 68).
In this case, the ALJ did not fully credit Plaintiffs testimony as to pain and other
non-exertional limitations. The ALJ did credit Plaintiff’s testimony as to some functional
limitation due to back pain, and accounted for this by reducing Plaintiffs RFC to a full
range of light work. The only testimony of the VE on which the ALJ relied was the VE’s
classification of Plaintiffs past work as “light” work.
The ALJ stated his RFC assessment is supported by the longitudinal medical
record and the effectiveness of Plaintiffs conservative treatment, physical therapy and
medication regimen. The Court found that the ALJ properly determined Plaintiff’s RFC.
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The ALJ only partially credited Plaintiffs testimony as to the severity of pain and the
limitations described in Plaintiffs testimony. The ALJ determined that Plaintiff had the
residual functional capacity to perform a full range of light work, and the requirements of
Plaintiffs past jobs do not exceed Plaintiffs RFC for the full range of light work.
Therefore, at Step Four, the ALJ found that Plaintiff can return to her past relevant work
and is not disabled within the meaning of the Social Security Act and regulations. The
ALJ’s “Step Five” determinations are alternative findings.
After consideration, the Court overrules Plaintiffs Objection as to this issue.
Accordingly, it is
ORDERED that Plaintiffs Objections are overruled, and the Report and
Recommendation (Dkt. 21) is adopted and incorporated by reference. The decision
of the Commissioner is affirmed. The Clerk of Court shall enter a final judgment in
favor of Defendant Carolyn W. Colvin, Acting Commissioner of Social Security and
against Plaintiff Kanella Karen Hantzis, and, and close this case.
DONE and ORDERED in Chambers, in Tampa, Florida on this
x ^ fr tfs ^ o f July, 2014.

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