Wrenn v. Commissioner of Social Security

Filing 22

OPINION AND ORDER affirming the decision of the Commissioner of Social Security. The Clerk is directed to enter judgment accordingly, terminate any pending motions and deadlines, and close the case. Signed by Magistrate Judge Mac R. McCoy on 9/16/2016. (brh)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
DION WRENN,
Plaintiff,
v.

Case No: 8:15-cv-1513-T-MRM

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
/
OPINION AND ORDER
This cause is before the Court on Plaintiff, Dion Wrenn’s Complaint (Doc. 1) filed on
June 26, 2015. Plaintiff seeks judicial review of the final decision of the Commissioner of the
Social Security Administration (“SSA”) denying his claim for a period of disability and
disability insurance benefits. The Commissioner filed the Transcript of the proceedings
(hereinafter referred to as “Tr.” followed by the appropriate page number), and the parties filed
legal memoranda in support of their 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, the ALJ Decision, and Standard of Review

A.

Eligibility

The law defines disability as the inability to do any substantial gainful activity by reason
of any medically determinable physical or mental impairment that can be expected to result in
death or that 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), 1382c(a)(3)(A); 20 C.F.R. §§ 404.1505, 416.905.
The impairment must be severe, making the claimant unable to do his previous work or any other

substantial gainful activity that exists in the national economy. 42 U.S.C. §§ 423(d)(2),
1382c(a)(3)(B); 20 C.F.R. §§ 404.1505 - 404.1511, 416.905 - 416.911. Plaintiff bears the
burden of persuasion through step four, while the burden shifts to the Commissioner at step five.
Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987).
B.

Procedural History

On February 24, 2014, Plaintiff filed an application for a period of disability and
disability insurance benefits, asserting an onset date of July 31, 2009. (Tr. at 83, 170-73).
Plaintiff’s application was denied initially on May 16, 2014, and on reconsideration on July 29,
2014. (Tr. at 83, 98). A hearing was held before Administrative Law Judge (“ALJ”) Angela L.
Neel on December 22, 2014. (Tr. at 38-72). The ALJ issued an unfavorable decision on
December 31, 2014. (Tr. at 19-32). The ALJ found Plaintiff not to be under a disability from
July 31, 2009, through the date of the decision. (Tr. at 32).
On April 24, 2015, the Appeals Council denied Plaintiff’s request for review. (Tr. at 13). Plaintiff filed a Complaint (Doc. 1) in the United States District Court on June 26, 2015.
This case is ripe for review. The parties consented to proceed before a United States Magistrate
Judge for all proceedings. (See Doc. 15).
C. Summary of the ALJ’s Decision
An ALJ must follow a five-step sequential evaluation process to determine if a claimant
has proven that he is disabled. Packer v. Comm’r of Soc. Sec., 542 F. App’x 890, 891 (11th Cir.
2013) (citing Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999)). 1 An ALJ must determine

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Unpublished opinions may be cited as persuasive on a particular point. The Court does not rely
on unpublished opinions as precedent. Citation to unpublished opinions on or after January 1,
2007 is expressly permitted under Rule 31.1, Fed. R. App. P. Unpublished opinions may be
cited as persuasive authority pursuant to the Eleventh Circuit Rules. 11th Cir. R. 36-2.

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whether the claimant: (1) is performing substantial gainful activity; (2) has a severe impairment;
(3) has a severe impairment that meets or equals an impairment specifically listed in 20 C.F.R.
Part 404, Subpart P, Appendix 1; (4) can perform his past relevant work; and (5) can perform
other work of the sort found in the national economy. Phillips v. Barnhart, 357 F.3d 1232, 123740 (11th Cir. 2004). The claimant has the burden of proof through step four and then the burden
shifts to the Commissioner at step five. Hines-Sharp v. Comm’r of Soc. Sec., 511 F. App’x 913,
915 n.2 (11th Cir. 2013).
The ALJ found that Plaintiff met the insured status requirements through June 30, 2015.
(Tr. at 21). At step one of the sequential evaluation, the ALJ found that Plaintiff had not
engaged in substantial gainful activity since July 31, 2009, the alleged onset date. (Tr. at 21). At
step two, the ALJ found that Plaintiff suffered from the following severe impairments: obesity;
degenerative disk disease of the lumbar spine; peripheral neuropathy; bilateral carpal tunnel
syndrome; right cubital tunnel syndrome; degenerative joint disease of the right shoulder, status
post rotator cuff surgery; and a history of colon cancer, status post resection and chemotherapy,
current in remission. (Tr. at 21). At step three, the ALJ determined that Plaintiff did not have an
impairment or combination of impairments that meets or medically equals the severity of one of
the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d),
404.1525, and 404.1526). (Tr. at 24). At step four, the ALJ determined that Plaintiff has the
residual functional capacity (“RFC”) to perform less than the full range of light work, finding
Plaintiff: unable to perform overhead work activities with the right upper extremity; can
occasionally push or pull with the right upper extremity; cannot climb ladders or scaffolds, kneel
or crawl; can occasionally climb ramps or stairs; and cannot work around unprotected heights,
around hazardous moving mechanical parts or operating motor vehicles. (Tr. at 25).

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The ALJ determined that Plaintiff is unable to perform any past relevant work. (Tr. at
30). Considering Plaintiff’s age, education, work experience, and RFC, the ALJ found that there
are jobs that exist in significant numbers in the national economy that Plaintiff can perform. (Tr.
at 31). Specifically, the ALJ found that Plaintiff was able to perform the following jobs: (1)
ticket taker, DOT # 344.677-010, SVP 2; (2) ticket seller, DOT # 211.467-030, SVP 2; and (3)
survey worker, DOT # 205.367-054, SVP 2. 2 The ALJ concluded that Plaintiff was not under a
disability from July 31, 2009, through the date of the decision. (Tr. at 32).
D. Standard of Review
The scope of this Court’s review is limited to determining whether the ALJ applied the
correct legal standard, McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir. 1988), and whether
the findings are supported by substantial evidence, Richardson v. Perales, 402 U.S. 389, 390
(1971). The Commissioner’s findings of fact are conclusive if supported by substantial
evidence. 42 U.S.C. §405(g). Substantial evidence is more than a scintilla; i.e., the evidence
must do more than merely create a suspicion of the existence of a fact, and must include such
relevant evidence as a reasonable person would accept as adequate to support the conclusion.
Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995) (citing Walden v. Schweiker, 672 F.2d 835,
838 (11th Cir. 1982) and Richardson, 402 U.S. at 401).
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); and Barnes v. Sullivan,
932 F.2d 1356, 1358 (11th Cir. 1991). The district court must view the evidence as a whole,
2

“DOT” refers to the Dictionary of Occupational Titles.

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taking into account evidence favorable as well as unfavorable to the decision. Foote, 67 F.3d at
1560; accord Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (court must scrutinize the
entire record to determine reasonableness of factual findings).
II.

Analysis

On appeal, Plaintiff raises two issues. As stated by Plaintiff, they are:
(1) The ALJ’s decision was in error in that the ALJ did not fully comply with
Social Security Ruling 96-6p.
(2) The ALJ’s decision was in error in relying on a response by the vocational
expert to an incomplete hypothetical.
(Doc. 20 at 5, 7). The Court will discuss each issue in turn.
A. Weight of the evidence
Plaintiff argues that the ALJ erred in failing to comply with SSR 96-6p by omitting in
Plaintiff’s RFC several limitations found by Frank Walker M.D., a medical advisor to the State
Disability Determination Service. (Doc. 20 at 6). Even though the ALJ gave great weight to the
opinion of Dr. Walker, Plaintiff argues that the ALJ failed to limit Plaintiff’s ability to reach in
front or laterally on the right side, and failed to include that Plaintiff should avoid even moderate
exposure to noise, concentrated exposure to extreme cold and heat, and even moderate exposure
to fumes, odors, dusts, gases, and poor ventilation. (Doc. 20 at 6). The Commissioner responds
that the ALJ considered Dr. Walker’s opinion, determined the weight of that opinion, and then
considered it along with the other evidence of record to reach an appropriate determination of
Plaintiff’s RFC.
At the fourth step in the evaluation process, the ALJ is required to determine a
claimant’s RFC and, based on that determination, decide whether the plaintiff is able to return
to his or her previous work. McCruter v. Bowen, 791 F.2d 1544, 1547 (11th Cir. 1986).

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The determination of a claimant’s RFC is within the authority of the ALJ and, along with the
claimant’s age education, and work experience, the RFC is considered in determining whether
the claimant can work. Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997). Weighing
the opinions and findings of treating, examining, and non-examining physicians is an integral
part of the ALJ’s RFC determination at step four. See Rosario v. Comm’r of Soc. Sec., 877 F.
Supp. 2d 1254, 1265 (M.D. Fla. 2012).
The Eleventh Circuit held that whenever a physician offers a statement reflecting
judgments about the nature and severity of a claimant’s impairments, including symptoms,
diagnosis, and prognosis, what the claimant can still do despite his or her impairments, and the
claimant’s physical and mental restrictions, the statement is an opinion requiring the ALJ to
state with particularity the weight given to it and the reasons therefor. Winschel v. Comm’r of
Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011). Without such a statement, “it is impossible
for a reviewing court to determine whether the ultimate decision on the merits of the claim is
rational and supported by substantial evidence.” Id. at 1179 (citing Cowart v. Shweiker, 662
F.2d 731, 735 (11th Cir. 1981)). Even though examining doctors’ opinions are not entitled to
deference, nevertheless, an ALJ is required to consider every medical opinion. Bennett v.
Astrue, No. 3:08-CV-646-J-JRK, 2009 WL 2868924, at *2 (M.D. Fla. Sept. 2, 2009) (citing
McSwain v. Bowen, 814 F.2d 617, 619 (11th Cir. 1987)); Crawford v. Comm’r of Soc. Sec., 363
F.3d 1155, 1158-59 (11th Cir. 2004).
On July 29, 2014, Dr. Walker completed a Residual Functional Capacity form. (Tr. at
93-95). Dr. Walker was a non-examining, consultative physician. (Tr. at 93-95). After
reviewing Plaintiff’s records as to Plaintiff’s ability to use his right arm, Dr. Walker found that
Plaintiff’s ability to reach in any direction including overhead was limited on the right side. (Tr.

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at 94). Dr. Walker made a specific note that this limitation included reaching in front and/or
laterally as well as overhead on the right side. (Tr. at 94). Later in his report, Dr. Walker
explained the limitation with the right arm was due: (1) to rotator cuff surgery in 2007; and (2)
to Plaintiff’s complaints of tenderness and a decreased range of motion. (Tr. at 94). Dr. Walker
continued with his explanation by writing, “[r]eaching overhead to including [sic] overhead is
reduced to frequently.” (Tr. at 94). As to environmental limitations, Dr. Walker also found that
Plaintiff should avoid concentrated exposure to extreme cold, extreme heat, and noise; and avoid
even moderate exposure to fumes, odors, dusts, gases, and poor ventilation due to Plaintiff’s
history of migraine headaches. (Tr. at 95). Dr. Walker’s assessment concluded that Plaintiff is
capable of performing light work and is not disabled. (Tr. at 96).
In the decision, the ALJ considered Dr. Walker’s report. (Tr. at 30). The ALJ noted that
Dr. Walker concluded that Plaintiff was able to perform the requirements of light work. (Tr. at
30). The ALJ gave great weight to Dr. Walker’s opinion. (Tr. at 30). The ALJ noted that
although Dr. Walker was a non-examining physician and is not entitled to as much weight as an
examining or treating physician, the ALJ found Dr. Walker’s opinion deserved weight,
especially in light of the record as a whole. (Tr. at 30).
The ALJ carefully considered Dr. Walker’s opinion and findings. The ALJ stated the
weight she afforded Dr. Walker’s opinion and the reasons why she afforded it great weight. The
ALJ also noted that even though she gave great weight to Dr. Walker’s opinion, based on the
record as a whole, the ALJ decided not to adopt all of the limitations found by Dr. Walker. (Tr.
at 30). While the ALJ found Plaintiff not as limited in certain areas as Dr. Walker’s findings, the
ALJ also found Plaintiff to have slightly greater restrictions than Dr. Walker found in other
areas. To make these determinations, the ALJ considered the record as a whole, including the

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testimony of Plaintiff at the hearing. (Tr. at 30). After this consideration, the ALJ found that
Plaintiff was unable to perform jobs requiring overhead work activities with the right upper
extremity; and was limited to occasionally pushing or pulling with the right upper extremity.
(Tr. at 25). Clearly, the ALJ considered Plaintiff’s limitations as to his right arm when finding
Plaintiff to be unable to perform jobs requiring reaching overhead, and requiring more than
occasionally being able to push or pull.
As to environmental limitations, the ALJ found that Plaintiff had no limitations. (Tr. at
25). Dr. Walker based his finding of environmental limitations on Plaintiff’s complaints of
migraine headaches. The ALJ found that since the alleged onset date, Plaintiff’s complaints of
the frequency of the migraine headaches was not supported by the record. (Tr. at 22). The ALJ
noted that Plaintiff only complained of migraine headaches periodically, Plaintiff was not
hospitalized for this condition, and Plaintiff’s headaches did not preclude Plaintiff from
performing activities of daily living, such as attending college courses and working part-time at a
school. (Tr. at 22). Further, the ALJ indicated that Plaintiff’s military records showed that his
headaches were satisfactorily treated with medications. (Tr. at 22).
The ALJ determined Plaintiff’s RFC from reviewing the entire record. Even though the
ALJ afforded Dr. Walker’s opinion great weight, the ALJ was not required to adopt all of Dr.
Walker’s limitations. Rather, the ALJ was required to consider all of the medical and other
evidence of record, including Plaintiff’s daily activities, in formulating Plaintiff’s RFC. The
Court finds that the ALJ did not err in failing to include all of Dr. Walker’s limitations in
Plaintiff’s RFC. Therefore, the decision of the ALJ was supported by substantial evidence.

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B. Hypothetical
Plaintiff argues that in the hypothetical presented to the vocational expert, the ALJ erred
in failing to include the limitations found by Dr. Walker of being limited to reaching in front
and/or laterally, and avoiding even moderate exposure to noise. The Commissioner responds
that the ALJ provided a hypothetical that included Plaintiff’s age, education, and work
experience as well as all of the limitations found by the ALJ in the RFC.
“The general rule is that after determining the claimant’s RFC and ability or inability to
return to past relevant work, the ALJ may use the grids to determine whether other jobs exist in
the national economy that a claimant is able to perform.” Phillips v. Barnhart, 357 F.3d 1232,
1242 (11th Cir. 2004). An ALJ may use the Medical Vocational Guidelines or may obtain the
testimony of a vocational expert to determine whether there a jobs that exist in the national
economy that a claimant can perform. Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1180
(11th Cir. 2011). If the ALJ decides to use a vocational expert, for the vocational expert’s opinion
to constitute substantial evidence, “the ALJ must pose a hypothetical question which comprises all
of the claimant’s impairments.” Id. (citing Wilson v. Barnhart, 284 F.3d 1219, 1227 (11th Cir.
2002)). However, an ALJ is not required to “include the findings in the hypothetical that the ALJ
has found to be unsupported.” Forrester v. Comm’r of Soc. Sec., 455 F. App’x 899, 903 (11th Cir.
2012) (citing Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1160 (11th Cir. 2004)).
The ALJ presented a hypothetical to the vocational expert that included no overhead
work activity with the right upper extremity; occasional pushing and pulling with the right upper
extremity; and no environmental limitations. (Tr. at 69). In this case, the ALJ included the
limitations found in Plaintiff’s RFC when presenting a hypothetical to the vocational expert. The
ALJ did not find that Plaintiff was limited to reaching in front or laterally and did not find that

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Plaintiff should avoid exposure to noise. The ALJ was not required to include limitations that
were not supported by the record. The Court finds that the ALJ did not err when presenting the
hypothetical to the vocational expert. Therefore, the Court finds that the ALJ’s decision was
supported by substantial evidence.
III.

Conclusion

Upon consideration of the submissions of the parties and the administrative record, the
Court finds that the decision of the ALJ is supported by substantial evidence and decided upon
proper legal standards.
IT IS HEREBY ORDERED:
The decision of the Commissioner is hereby AFFIRMED pursuant to sentence four of 42
U.S.C. §405(g). The Clerk is directed to enter judgment accordingly, terminate any pending
motions and deadlines, and close the case.
DONE AND ORDERED in Fort Myers, Florida on September 16, 2016.

Copies furnished to:
Counsel of Record
Unrepresented Parties

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