Thomas v. Commissioner of Social Security

Filing 23

ORDER re 1 Complaint filed by Thomas Harmon Thomas. The decision of the Commissioner is affirmed. The Clerk of Court is directed to enter final judgment in favor of the Commissioner and close the case. Signed by Magistrate Judge Julie S. Sneed on 12/11/2017. (SMC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
THOMAS HARMON THOMAS,
Plaintiff,
v.

Case No: 8:16-cv-3129-T-JSS

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
___________________________________/
ORDER
Plaintiff, Thomas Harmon Thomas seeks judicial review of the denial of his claim for a
period of disability, disability insurance benefits, and supplemental security income. As the
Administrative Law Judge’s (“ALJ”) decision was based on substantial evidence and employed
proper legal standards, the decision is affirmed.
BACKGROUND
A.

Procedural Background

Plaintiff filed an application for a period of disability, disability insurance benefits, and
supplemental security income on September 24, 2012. (Tr. 33, 99.) The Commissioner denied
Plaintiff’s claims both initially and upon reconsideration. (Tr. 43, 518.) Upon Plaintiff’s request,
the ALJ held a hearing at which Plaintiff appeared and testified. (Tr. 605–643.) Following the
hearing, the ALJ issued an unfavorable decision finding Plaintiff not disabled and accordingly
denied Plaintiff’s claims for benefits. (Tr. 21–32.) Subsequently, Plaintiff requested review from
the Appeals Council, which the Appeals Council denied. (Tr. 8–17.) Plaintiff then timely filed a

complaint with this Court. (Dkt. 1). The case is now ripe for review under 42 U.S.C. § 405(g)
and 42 U.S.C. § 1383(c)(3).
B.

Factual Background and the ALJ’s Decision

Plaintiff, who was born in 1962, claimed disability beginning on September 20, 2010,
which was subsequently amended to April 7, 2012. (Tr. 21, 99–112, 195, 609.) Plaintiff has a
limited education. (Tr. 26.) Plaintiff's past relevant work experience included work as a terra cotta
mason, marble installer, and a mason supervisor. (Tr. 30, 134.) Plaintiff alleged disability due to
diabetes, neuropathy, tendonitis, retinopathy, and cardiac issues. (Tr. 125.)
In rendering the decision, the ALJ concluded that Plaintiff had not performed substantial
gainful activity since April 7, 2012, the alleged onset date. (Tr. 23.) After conducting a hearing
and reviewing the evidence of record, the ALJ determined that Plaintiff had the following severe
impairments: obesity, diabetes mellitus, type one with nephropathy, peripheral neuropathy and
retinopathy, essential hypertension, and status post myocardial infarction with stent placement (Tr.
24.) Notwithstanding the noted impairments, the ALJ determined that Plaintiff did not have an
impairment or combination of impairments that met or medically equaled one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 25.) The ALJ then concluded that
Plaintiff retained a residual functional capacity (“RFC”) to perform light work with the following
additional limitations:
occasional balancing and climbing of ramps or stairs; no balancing on uneven
terrain; no climbing of ladders, ropes, or scaffolds; no exposure to unprotected
heights; limited to standing and walking in two hour segments for a total of 6 hours
in an 8-hour workday; sitting unlimited; must avoid exposure to extreme hot
temperatures; must avoid exposure to extreme industrial vibrations to all four
extremities; near and far visual acuity limited to frequent; limited to frequent, as
opposed to constant, field of vision; must avoid operating dangerous machinery or
tools; no work involving tiny items such as screws or reading small print unless a
magnifying glass is allowed; fine and gross manipulation is limited to frequent;

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feeling limited to frequent with the right hand; left upper extremity unlimited; and
no driving motor vehicles at night.
(Tr. 25–26.) In formulating Plaintiff’s RFC, the ALJ considered Plaintiff’s subjective complaints
and determined that, although the evidence established the presence of underlying impairments
that reasonably could be expected to produce the symptoms alleged, Plaintiff’s statements as to
the intensity, persistence, and limiting effects of his symptoms were not fully credible. (Tr. 30.)
Considering Plaintiff's noted impairments and the assessment of a vocational expert
(“VE”), however, the ALJ determined that Plaintiff could not perform his past relevant work. (Tr.
30.) Given Plaintiff’s background and RFC, the VE testified that Plaintiff could perform other
jobs existing in significant numbers in the national economy, such as a cafeteria attendant, an
usher, and a ticket taker. (Tr. 31.) Accordingly, based on Plaintiff’s age, education, work
experience, RFC, and the testimony of the VE, the ALJ found Plaintiff not disabled. (Tr. 31.)
APPLICABLE STANDARDS
To be entitled to benefits, a claimant must be disabled, meaning that the claimant must be
unable to engage in 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. §§ 423(d)(1)(A),
1382c(a)(3)(A). A “physical or mental impairment” is an impairment that results from anatomical,
physiological, or psychological abnormalities that are demonstrable by medically acceptable
clinical and laboratory diagnostic techniques. 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D).
The Social Security Administration, in order to regularize the adjudicative process,
promulgated the detailed regulations currently in effect. These regulations establish a “sequential
evaluation process” to determine whether a claimant is disabled. 20 C.F.R. § 416.920. If an
individual is found disabled at any point in the sequential review, further inquiry is unnecessary.
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20 C.F.R. § 416.920(a). Under this process, the ALJ must determine, in sequence, the following:
(1) whether the claimant is currently engaged in substantial gainful activity; (2) whether the
claimant has a severe impairment, i.e., one that significantly limits the ability to perform workrelated functions; (3) whether the severe impairment meets or equals the medical criteria of 20
C.F.R. Part 404, Subpart P, Appendix 1; and, (4) whether the claimant can perform his or her past
relevant work. If the claimant cannot perform the tasks required of his or her prior work, step five
of the evaluation requires the ALJ to decide if the claimant can do other work in the national
economy in view of the claimant’s age, education, and work experience. 20 C.F.R. § 416.920(a).
A claimant is entitled to benefits only if unable to perform other work. Bowen v. Yuckert, 482 U.S.
137, 140–42 (1987); 20 C.F.R. § 416.920(g).
A determination by the Commissioner that a claimant is not disabled must be upheld if it
is supported by substantial evidence and comports with applicable legal standards. See 42 U.S.C.
§ 405(g). Substantial evidence is “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting
Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); Miles v. Chater, 84 F.3d 1397, 1400
(11th Cir. 1996). While the court reviews the Commissioner’s decision with deference to the
factual findings, no such deference is given to the legal conclusions. Keeton v. Dep’t of Health &
Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994).
In reviewing the Commissioner’s decision, the court may not decide the facts anew, reweigh the evidence, or substitute its own judgment for that of the ALJ, even if it finds that the
evidence preponderates against the ALJ’s decision. Bloodsworth v. Heckler, 703 F.2d 1233, 1239
(11th Cir. 1983). The Commissioner’s failure to apply the correct law, or to give the reviewing
court sufficient reasoning for determining that he or she has conducted the proper legal analysis,

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mandates reversal. Keeton, 21 F.3d at 1066. The scope of review is thus limited to determining
whether the findings of the Commissioner are supported by substantial evidence and whether the
correct legal standards were applied. 42 U.S.C. § 405(g); Wilson v. Barnhart, 284 F.3d 1219, 1221
(11th Cir. 2002).
ANALYSIS
Plaintiff challenges the ALJ’s decision on the following grounds: (1) the ALJ erred in
posing a hypothetical to the VE that did not include all of Plaintiff’s limitations; (2) the ALJ
violated Plaintiff’s due process and administrative rights by failing to consider a report by Dr.
Robert Shefsky; (3) the ALJ failed to resolve inconsistencies between the testimony of the VE and
the Dictionary of Occupational Titles (“DOT”); and (4) the ALJ erred in the evaluation of
Plaintiff’s RFC. For the reasons that follow, none of these contentions warrant reversal.
A.

The ALJ’s Hypothetical to the VE

Plaintiff’s first contention is that the ALJ’s hypothetical to the VE did not include a
prohibition on balancing on uneven terrain, did not contain a limitation to occasional balancing in
general, and arguably did not include a limitation to frequent left hand fine and gross manipulation.
(Dkt. 19 at 12.) As part of his RFC determination, the ALJ limited Plaintiff to jobs requiring
occasional balancing, no balancing on uneven terrain, and frequent fine and gross manipulation.
(Tr. 25–26.) During the hearing, the ALJ posed the following hypothetical to the VE:
Assume a hypothetical, closely approaching advanced age, individual with a
limited education and past relevant work experience as the claimant had. Assuming
he’s limited to a wide range of light level of exertion, with limitations. As far as
occasional climbing, balancing, and that’s balancing on uneven terrain. . . .
Assuming that fine and gross manipulation is limited to frequently, and the same
with feeling, particularly with the right hand.
(Tr. 637–638.) The VE testified that an individual with Plaintiff’s limitations could perform work
as a cafeteria attendant, an usher, and a ticket taker. (Tr. 638–639.)
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A claimant’s RFC is “the most [claimant] can still do despite [claimant’s] limitations” and
is assessed “based on all the relevant evidence in [claimant’s] case record.”

20 C.F.R. §

404.1545(a)(1); Phillips v. Barnhart, 357 F.3d 1232, 1238 (11th Cir. 2004). When the ALJ
determines that a claimant cannot perform past relevant work, then the Commissioner must
produce evidence that claimant is able to do other jobs existing in significant numbers in the
national economy given the claimant’s RFC, age, education, and work experience. 20 C.F.R. §
404.1560(c). The burden then shifts to the claimant to show that the claimant “is unable to perform
the jobs that the Commissioner lists.” Doughty v. Apfel, 245 F.3d 1274, 1278, n.2 (11th Cir. 2001).
“[T]he Commissioner’s preferred method of demonstrating that the claimant can perform
other jobs is through the testimony of a [vocational expert].” Jones v. Apfel, 190 F.3d 1224, 1229
(11th Cir. 1999). The ALJ must “introduce independent evidence, preferably through a vocational
expert’s testimony, of existence of jobs in the national economy that the claimant can perform”
and a vocational expert’s testimony constitutes substantial evidence when the ALJ poses a
hypothetical question to the vocational expert “which comprises all of the claimant’s
impairments.” Wilson, 284 F.3d at 1227. The ALJ is “not required to include findings in the
hypothetical that the ALJ had properly rejected as unsupported.” Crawford, 363 F.3d at 1161.
Further, an ALJ’s hypothetical needs to include the claimant’s impairments, “not each and every
symptom of the claimant.” Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1270 (11th Cir.
2007).
Plaintiff argues that the ALJ could not properly rely on the VE’s testimony because the
ALJ’s hypothetical question did not include Plaintiff’s impairments related to balancing and
manipulation of his left hand. Plaintiff contends that the only reference to balancing in the ALJ’s
hypothetical appears “to be a limitation to occasional balancing on uneven terrain, and no limit to

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other balancing.” (Dkt. 19 at 13.) Thus, Plaintiff argues that this does not include his limitations
of occasional balancing in general and no balancing on uneven terrain. (Dkt. 19 at 14.) Upon
review of the transcript, the hypothetical includes limitations in “balancing, and that’s balancing
on uneven terrain.” (Tr. 637–638.) It is unclear from the VE’s hypothetical whether the ALJ was
referring to occasional balancing in general or occasional balancing on uneven terrain.

The

Commissioner argues that Plaintiff’s representative explored the limitation of balancing on uneven
surfaces with the vocational expert, who testified that with regard to performing a job as an usher,
she did not consider the slanted surface in a theater an “uneven surface.” (Tr. 640.) However, this
does not address occasional balancing. Nonetheless, none of the three jobs testified to by the VE
require balancing. According to the Dictionary of Occupational Titles (“DOT”), balancing is “not
present” in performing a job as a cafeteria attendant, an usher, or a ticket taker. DICOT § 311.677010, 1991 WL 672694; DICOT § 344.667-014, 1991 WL 672865; DICOT § 344.667-010, 1991
WL 672863. Thus, any error in the ALJ’s hypothetical to the VE is harmless and does not warrant
remand as whether Plaintiff is able to balance is not relevant to his performance of the jobs the VE
testified Plaintiff can perform. See Diorio v. Heckler, 721 F.2d 726, 728 (11th Cir. 1983) (finding
ALJ error harmless where the error did not affect the decision).
Plaintiff next argues that the ALJ’s hypothetical to the VE was deficient because the ALJ
stated that Plaintiff’s use of his left hand was unlimited. (Dkt. 19 at 14.) Plaintiff argues that this
does not include the ALJ’s RFC assessment that Plaintiff’s “fine and gross manipulation is limited
to frequent” as to Plaintiff’s left hand. (Dkt. 19 at 14.) However, this argument is without merit.
In the hypothetical, the ALJ asked the VE to assume “that fine and gross manipulation is limited
to frequently, and the same with feeling, particularly with the right hand.” (Tr. 638.) The ALJ
then confirms with Plaintiff that he is right-handed, and states “the right hand is the dominant

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extremity. The left upper extremity, unlimited.” (Tr. 638.) The ALJ’s reference to “left upper
extremity, unlimited” refers to feeling, not fine and gross manipulation. Moreover, the ALJ’s
hypothetical reflects the limitations in Plaintiff’s RFC. The ALJ’s RFC assessment specifically
states “fine and gross manipulation is limited to frequent; feeling limited to frequent with the right
hand; left upper extremity unlimited.” (Tr. 26.) Therefore, Plaintiff’s argument that the ALJ’s
hypothetical to the VE did not include all the limitations within Plaintiff’s RFC does not warrant
remand.
B.

Dr. Shefsky’s 2011 Report and Plaintiff’s Due Process

Plaintiff next argues that the ALJ erred in failing to admit into evidence and consider the
June 16, 2011 report of consultative examiner Dr. Robert Shefsky. (Dkt. 19 at 15.) Plaintiff argues
that the ALJ was initially confused about whether the report was included in the record, then
compared it to a subsequent report by Dr. Shefsky, but did not ultimately admit the 2011 report
into evidence. (Dkt. 19 at 16–17.) Plaintiff submitted the report to the Appeals Council on
November 17, 2015. (Tr. 557, 577.) Plaintiff argues that the report must be considered by the
Court in reviewing the ALJ’s decision. (Dkt. 19 at 17.) Plaintiff further contends that he had a
right to submit evidence for the ALJ to consider, and in failing to admit the 2011 report into
evidence, the ALJ violated Plaintiff’s due process rights. (Dkt. 19 at 18.)
As stated by the Eleventh Circuit, “there must be a showing of prejudice before we will
find that the claimant’s right to due process has been violated to such a degree that the case must
be remanded to the Secretary for further development of the record.” Brown v. Shalala, 44 F.3d
931, 934–35 (11th Cir. 1995); Kelley v. Heckler, 761 F.2d 1538, 1540 n.2 (11th Cir. 1985).
Because a hearing before an ALJ is not an adversary proceeding, the ALJ has a basic obligation to
develop a full and fair record. See Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir. 1981). The

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court should be guided by whether the record reveals evidentiary gaps which result in unfairness
or “clear prejudice.” See Brown, 44 F.3d at 934–35. Prejudice “at least requires a showing that the
ALJ did not have all of the relevant evidence before him in the record (which would include
relevant testimony from claimant), or that the ALJ did not consider all of the evidence in the record
in reaching his decision.” Kelley, 761 F.2d at 1540. Nevertheless, the plaintiff bears the burden of
proving that he or she is disabled and is responsible for producing evidence to support his or her
claim. Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003) (citing 20 C.F.R. § 416.912(a),
(c)).
Here, the ALJ admitted Dr. Shefsky’s September 2013 report, but not the 2011 report. In
the physical examination of his 2011 report, Dr. Shefsky stated that Plaintiff had a “shortened
stride length,” could not fully squat, and “[c]ould not walk on heels and toes without difficulty.”
(Tr. 567.) Dr. Shefsky further reported that Plaintiff’s stance was normal and Plaintiff did not use
an assistive device and “[n]eeded no help getting off [the] exam table.” (Tr. 576.) Plaintiff asserts
that this report is significant because Dr. Andrea Brand cited the report in her August 24, 2015
opinion that Plaintiff was not capable of standing and walking six to eight hours a day, five days
a week, on or before June 12, 2015. (Tr. 583.) Dr. Brand cited Plaintiff’s intermittent pain and
burning in his feet as the reason for his inability to stand and walk. (Tr. 583.) However, Dr. Brand
also cited to Dr. Shefsky’s 2013 report. (Tr. 583.) The ALJ addressed Dr. Shefsky’s 2013 report
extensively and assigned it significant weight. (Tr. 27–29.) In reviewing Dr. Shefsky’s 2013
report, Dr. Shefsky makes findings that are almost identical to those in his 2011 report. For
example, in the 2013 report, Dr. Shefsky again noted Plaintiff’s shortened stride length and that
he could not fully squat and had difficulty walking on his heels and toes. (Tr. 423.) Dr. Shefsky
also reported that Plaintiff’s stance was normal, he did not use an assistive device, and he did not

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need help getting off the exam table. (Tr. 423.) The ALJ specifically noted all of these
observations in his decision. (Tr. 29.) Given the similarity in Dr. Shefsky’s reports, it is unclear
how any evidentiary gaps caused by the 2011 report’s absence from the record resulted in clear
prejudice that would warrant remand. See Brown, 44 F.3d at 934–35.
Further, as noted by the Commissioner, the Appeals Council considered Dr. Shefsky’s
2011 report in its review of the ALJ’s decision. In denying Plaintiff’s request for review, the
Appeals Council specifically considered the additional evidence and whether the ALJ’s findings
were contrary to the weight of the evidence. (Tr. 11–12.) The ALJ found that the “information
does not provide a basis” for changing the ALJ’s decision. (Tr. 12.) Additionally, as explained
further below, the ALJ’s decision was supported by substantial evidence. Therefore, Plaintiff fails
to show prejudice warranting remand.
C.

The VE’s Testimony and the DOT

Plaintiff next contends that the ALJ erred in failing to identify and resolve inconsistencies
between the VE’s testimony and the DOT. (Dkt. 19 at 18.) Specifically, Plaintiff argues that the
ALJ’s hypothetical includes a limitation to “no work involving . . . reading very small print without
– unless magnifying glass is allowed.” (Tr. 638.) Plaintiff contends that this limitation is
inconsistent with performing a job as a ticket taker, whose job includes examining tickets to verify
authenticity. (Dkt. 19 at 19.) Plaintiff asserts that tickets “are inherently small, and the size of the
print identifying such elements as date issued is necessarily correspondingly small.” (Dkt. 19 at
19.) Plaintiff makes a similar argument concerning the usher’s responsibilities of reading tickets
for seat locations. (Dkt. 19 at 19.) Plaintiff also argues that the VE did not explain how a cafeteria
attendant can sit for two hours a day considering his or her primary duties include carrying trays
and dishes and wiping and setting tables. (Dkt. 19 at 19.) Plaintiff asserts that pursuant to Social

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Security Ruling (“SSR”) 00-4p, “when conflict exists between a VE’s testimony and the DOT, an
ALJ must elicit a reasonable explanation for the conflict and his or her failure to do so can
constitute reversible error.” (Dkt. 19 at 20.)
In response, the Commissioner argues that Plaintiff is speculating and that Plaintiff’s
argument does not show a conflict between the VE’s testimony and the DOT. (Dkt. 21 at 12.) The
Court agrees. The DOT descriptions for the jobs of a ticket taker and an usher do not include a
limitation that the jobs cannot be performed with the use of a magnifying glass. See DICOT §
344.667-014, 1991 WL 672865; DICOT § 344.667-010, 1991 WL 672863. Likewise, the DOT
description for a cafeteria attendant does not include a limitation that he or she cannot sit for two
hours a day. See DICOT § 311.677-010, 1991 WL 672694. Rather, the DOT description for a
cafeteria attendant indicates that the physical demands are those of light work, meaning it requires
(1) walking or standing to a significant degree or (2) sitting most of the time but entails pushing
and/or pulling of arm or leg controls and/or (3) working at a production rate pace entailing the
constant pushing and/or pulling of materials even though the weight of those materials is
negligible. Id. This description does not conflict with the ALJ’s hypothetical and RFC limitation
that Plaintiff is restricted to standing and walking in two hour segments for a total of six hours in
an eight-hour workday.
The Court further notes that Plaintiff does not argue that the ALJ did not include Plaintiff’s
limitations regarding reading small print or sitting for two hours a day within the hypothetical to
the VE. During the hearing, the ALJ clearly included these restrictions in the hypothetical. (Tr.
637–638.) The ALJ then inquired as to whether the VE’s testimony was consistent with the DOT,
and the VE confirmed that it was. (Tr. 639.) The ALJ relied on this testimony in determining the
jobs Plaintiff is able to perform. (Tr. 31.) Thus, Plaintiff’s contention does not warrant reversal.

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See Miller v. Comm’r of Soc. Sec., 246 Fed. App’x 660, 662 (11th Cir. 2007) (“even assuming
that an inconsistency existed between the testimony of the vocational expert and the DOT, the ALJ
did not err when, without first resolving the alleged conflict, he relied on the testimony of the
vocational expert.”); Hobbs v. Colvin, No. 8:13-CV-3233-T-24, 2015 WL 628763, at *5 (M.D.
Fla. Feb. 12, 2015) (finding the “ALJ was permitted to base his findings about [jobs the plaintiff
is able to perform] on the VE’s testimony”); Brijbag v. Astrue, No. 8:06-CV-2356-T-MAP, 2008
WL 276038, at *2 (M.D. Fla. Jan. 31, 2008) (“[T]he ALJ need not independently corroborate the
VE’s testimony and should be able to rely on such testimony where no apparent conflict exists
with the DOT.”).
D.

Residual Functional Capacity

Plaintiff’s final contention is that the ALJ’s RFC assessment is not supported by substantial
evidence. (Dkt. 19 at 21.) Specifically, Plaintiff argues that the ALJ erred in assessing Plaintiff’s
fine and gross manipulation, driving, and standing and walking. (Dkt. 19 at 21.)
At step four of the sequential evaluation process, the ALJ assesses the claimant’s RFC and
ability to perform past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). As
discussed previously, the RFC is defined as the most a claimant “can still do despite [his or her]
limitations.” 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). To determine a claimant’s RFC, an ALJ
makes an assessment based on all of the relevant evidence of record as to what a claimant can do
in a work setting despite any physical, mental, or environmental limitations caused by the
claimant’s impairments and related symptoms. 20 C.F.R. §§ 404.1545(a)(1), (3), 416.945(a)(1),
(3). Therefore, the ALJ’s RFC assessment need not be identical to a particular assessment of
record or incorporate precise limitations set forth by a physician. See 20 C.F.R. § 416.945(a)(3)
(stating that all of the record evidence is considered in the RFC assessment). Further, while the

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ALJ should consider medical opinions regarding a claimant’s ability to work in forming the RFC,
the medical opinions are distinct from the RFC assessment.

Id. §§ 404.1527, 404.1545,

416.913(a), 416.927, 416.945.1 Specifically, a claimant’s RFC is a matter reserved for the ALJ’s
determination, and while a physician’s opinion on the matter will be considered, it is not
dispositive. 20 C.F.R. §§ 404.1527(d)(1), 416.927(d)(1).
1.

Plaintiff’s Fine and Gross Manipulation

Plaintiff contends that the ALJ did not consider all of his limitations when determining
Plaintiff’s fine and gross manipulation. Plaintiff cites to Dr. Shefsky’s 2013 report and Dr.
Shefsky’s comments that Plaintiff reported a decreased sensation to light touch on the fingertips
of both hands, as well as Dr. Shefsky’s findings that Plaintiff’s right hand dexterity was not intact
and he had difficulty with zippers, buttons, and tying. (Dkt. 19 at 22.) In the decision, the ALJ
limited Plaintiff’s RFC to frequent fine and gross manipulation. (Tr. 26.) The ALJ specifically
addressed Dr. Shefsky’s report, noting that while Dr. Shefsky found Plaintiff’s dexterity was not
intact on the right hand, his left hand dexterity remains intact. (Tr. 28, 425.) Further, as noted by
the ALJ, Dr. Shefsky found no reduction in grip strength on the left hand and noted Plaintiff’s grip
strength as a four out of five on the right hand. (Tr. 28, 425.) The ALJ also relied on the opinion
of Dr. Edmund Molis. (Tr. 29.) In November 2013, Dr. Molis opined that Plaintiff is limited to
frequent handling, fingering, and feeling with the right hand, but is unlimited in the use of his left
hand. (Tr. 29, 450.) The ALJ afforded Dr. Molis’ opinion significant weight in forming Plaintiff’s
RFC. (Tr. 29.) Therefore, the ALJ’s findings are supported by substantial evidence.
Plaintiff also cites to the September 2015 opinion of Dr. Grindal, who noted that Plaintiff’s
hands were “somewhat contracted” and “[h]e has very limited movement and weakness of all

1

For claims filed before March 27, 2017, including Plaintiff’s claim, the rules in 20 C.F.R. §§ 404.1527, 416.927
apply.

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intrinsic muscles.” (Tr. 599.) Plaintiff further notes his diagnosis of right hand tendonitis and a
referral to an orthopedist in April 2013. (Tr. 387.) The orthopedist found that Plaintiff has
stenosing tenostynovitis and recommended surgery. (Tr. 347.) Plaintiff argues that the ALJ did
not consider this impairment and the effect it has on “Plaintiff’s ability to grip in combination with
his peripheral neuropathy.” (Dkt. 19 at 23.) However, to the extent that Plaintiff points to other
evidence which would undermine the ALJ’s RFC determination, his contentions misinterpret the
narrowly circumscribed nature of the court’s appellate review, which precludes us from “reweigh[ing] the evidence or substitut[ing] our judgment for that [of the Commissioner]…even if
the evidence preponderates against” the decision. Moore v. Barnhart, 405 F.3d 1208, 1213 (11th
Cir. 2005) (quoting Bloodsworth, 703 F.2d at 1239). This court may not reweigh the evidence and
decide facts anew and must defer to the ALJ’s decision if it is supported by substantial evidence
even if the evidence may preponderate against it. See Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th
Cir. 2005).
Plaintiff also addresses the ALJ’s statement that Plaintiff helps with the laundry, which
Plaintiff believes is inconsistent with his testimony. (Dkt. 19 at 22.) In the decision, the ALJ
wrote that during the hearing, Plaintiff testified “he throws laundry into the washing machine” and
“that he helps with the laundry.” (Tr. 24, 26.) Plaintiff argues that he testified to serious limitations
when doing the laundry, including that while he can throw laundry in, “it’s like a scavenger hunt
trying to get it into the dryer” because he lacks sensitivity in his hands. (Tr. 627.) The ALJ’s
statement that Plaintiff helps with the laundry does not conflict with Plaintiff’s testimony. Further,
the ALJ found Plaintiff’s testimony regarding his manipulative limitations “partially credible.”
(Tr. 28.) Plaintiff does not contend that the ALJ erred in the credibility determination, and Plaintiff
offers no arguments concerning how this issue pertains to his issues on appeal. As such, to the

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extent Plaintiff is attempting to challenge the ALJ’s credibility determination, Plaintiff’s statement
is insufficient to raise this issue for appeal. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d
678, 681 (11th Cir. 2014) (“[A]n appellant abandons a claim when he either makes only passing
references to it or raises it in a perfunctory manner without supporting arguments and authority.”);
Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316, 1319 (11th Cir. 2012) (“A passing
reference to an issue in a brief is not enough, and the failure to make arguments and cite authorities
in support of an issue waives it.”).
2.

Plaintiff’s Ability to Drive

Plaintiff next contends that the RFC assessment fails to properly address his inability to
drive because the ALJ only restricted Plaintiff to driving during the day. (Dkt. 19 at 24.) In support
of his argument, Plaintiff relies on his testimony during the hearing. Specifically, Plaintiff testified
that he “got in a couple of car accidents, and in company trucks” because his eyes are too sensitive
to the sun, “the light sensitivity is unbearable sometimes,” and he does not drive at night. (Tr. 617,
623, 628.) Plaintiff further testified that he cannot grip the wheel anymore, nor drive manual
vehicles as he is unable to feel the gas pedal, clutch, and brake accurately. (Tr. 628.) Plaintiff
does not cite to any medical record or opinion in support of his argument.
In the ALJ’s opinion, the ALJ noted Plaintiff’s alleged limitations in driving, but also cited
Plaintiff’s testimony that he drives himself to doctor appointments and is able to drive
approximately seven miles. (Tr. 24, 27, 612.) As noted above, the ALJ’s assessment of Plaintiff’s
ability to grip is supported by substantial evidence. See supra Section D(1). In assessing Plaintiff’s
visual limitations, the ALJ viewed Plaintiff’s testimony as “generally credible” as it aligns with
the medical evidence. (Tr. 28.) The ALJ cited to Dr. Shefsky’s 2013 report and his findings that
Plaintiff had 20/70 vision without corrective lenses. (Tr. 28, 423.) In November 2013, Dr. Molis

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opined that Plaintiff had a limited field of vision, but unlimited near acuity, far acuity, depth
perception, accommodation, and color vision. (Tr. 450.) Thus, the record supports the ALJ’s
conclusion that Plaintiff is able to drive during the day.
Further, none of the three jobs that the ALJ found Plaintiff is able to perform require
driving. See DICOT § 311.677-010, 1991 WL 672694; DICOT § 344.667-014, 1991 WL 672865;
DICOT § 344.667-010, 1991 WL 672863. Accordingly, any error in the ALJ’s assessment that
Plaintiff is able to drive during the day is harmless and does not warrant remand as Plaintiff’s
ability to drive is immaterial. See Diorio, 721 F.2d at 728 (11th Cir. 1983) (finding ALJ error
harmless where the error did not affect the decision).
3.

Plaintiff’s Ability to Stand and Walk

In his last argument, Plaintiff contends that the ALJ’s RFC assessment fails to properly
address his inability to stand and walk. Plaintiff argues that the ALJ erred as “Plaintiff’s capacity
for standing and walking is more severely limited than assigned by the ALJ based on Plaintiff’s
combined severe impairments.” (Dkt. 19 at 24.) Plaintiff relies on physicians Dr. Myron Bernstein
and Dr. Andrea Brand, both of whom concluded that Plaintiff’s limitations in standing and walking
existed prior to the ALJ’s decision. (Dkt. 19 at 25.) In their reports, Dr. Bernstein and Dr. Brand
opined that Plaintiff was not able to stand and walk six to eight hours per day, five days per week.
(Tr. 582–583.) Dr. Bernstein specified that he believed Plaintiff’s disability was due to his
advanced neuropathy and a history of plantar ulcerations, and Dr. Brand cited to Plaintiff’s
intermittent pain and burning in his feet. (Tr. 582–583.) Plaintiff also relies on a May 2015 record
from Dr. Clayton Bredlau. (Dkt. 19 at 25.) Dr. Bredlau noted that Plaintiff could not walk on a
treadmill due to pain. (Tr. 585.)

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In the RFC determination, the ALJ limited Plaintiff to standing and walking in two hour
segments for a total of six hours in an eight-hour workday. (Tr. 25.) In reaching this decision, the
ALJ noted Plaintiff’s testimony that he could stand for approximately one hour at a time and walk
a distance of “a couple city blocks at one time.” (Tr. 27.) The ALJ also referenced Plaintiff’s
treatment notes, which contain “extensive complaints of peripheral neuropathy afflicting the
claimant’s lower extremities.” (Tr. 27.) However, the ALJ found that Plaintiff’s treatment notes
do not contain specific findings regarding his ability to stand and walk that reflect his subject
complaints. (Tr. 27.) The ALJ noted that after the hearing, Plaintiff stood up and walked out of
the hearing room without an assistive device and only a slight limp. (Tr. 27.) The ALJ also relied
on the reports of Dr. Shefsky and Dr. Molis in making his RFC determination. (Tr. 27, 29.)
As previously mentioned, in his 2013 report, Dr. Shefsky noted that Plaintiff is able to walk
with a shortened stride length and that he could not fully squat and had difficulty walking on his
heels and toes. (Tr. 423.) Dr. Shefsky also reported that Plaintiff’s stance was normal, he did not
use an assistive device, and he did not need help getting off the exam table.

(Tr. 423.)

Additionally, Dr. Molis opined that Plaintiff is able to stand and/or walk (with normal breaks) for
six hours in an eight-hour workday, an opinion which the ALJ assigned significant weight. (Tr.
29, 448.) Thus, the ALJ’s findings were supported by the record.
Further, Plaintiff again appears to be requesting the Court to re-weigh the evidence.
However, the Court is precluded from re-weighing the evidence and must defer to the ALJ’s
decision if it is supported by substantial evidence. Moore, 405 F.3d at 1213; Dyer, 395 F.3d at
1210. “Substantial evidence is less than a preponderance, but rather such relevant evidence as a
reasonable person would accept as adequate to support a conclusion.” Moore, 405 F.3d at 1211.
Here, Dr. Shefsky’s and Dr. Molis’ reports adequately support the ALJ’s conclusion. Therefore,

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the ALJ’s RFC assessment for Plaintiff’s ability to stand and walk is supported by substantial
evidence, and Plaintiff’s final contention does not warrant remand.
CONCLUSION
Accordingly, after due consideration and for the foregoing reasons, it is
ORDERED:
1. The decision of the Commissioner is AFFIRMED.
2. The Clerk of Court is directed to enter final judgment in favor of the Commissioner
and close the case.
DONE and ORDERED in Tampa, Florida, on December 11, 2017.

Copies furnished to:
Counsel of Record

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