WARREN v. COLVIN

Filing 24

ORDER adopting 21 Report and Recommendation. Signed by William Terrell Hodges on 3/28/2017. Accordingly, the Clerk is directed to enter judgment stating the following: "The Report and Recommendation, ECF No. 21 , is accepted and incorporated herein. The decision of the Commissioner, denying benefits, is affirmed." The Clerk is directed to close the file. (kdm)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
GAINESVILLE DIVISION

DEWAYNE WARREN,
PLAINTIFF,
-vs-

Case No. 1:15-cv-00222-WTH-GRJ

CAROLYN W COLVIN,
DEFENDANT.
______________________________/
ORDER
This matter is before the Court on ECF No. 21, the Report and
Recommendation of the Magistrate Judge. The parties have been furnished a
copy of the Report and Recommendation and have been afforded an opportunity
to file objections pursuant to Title 28, United States Code, Section 636(b)(1).
The Plaintiff has filed objections at ECF No. 22. I have made a de novo review
based on those objections.
Having considered the Report and Recommendation, and the timely filed
objections, I have determined that the Report and Recommendation should be
adopted. Plaintiff raises three issues in this case: (1) whether the ALJ improperly
relied upon the vocational expert’s response to a hypothetical question because
the hypothetical did not include all limitations; (2) whether the ALJ failed to fully
and fairly develop the record by not ordering an x-ray of Plaintiff’s right knee; and

Page 2 of 3

(3) whether the Commissioner failed to properly consider the impact of Plaintiff’s
obesity on his ability to perform work. ECF No. 19.
As to the first issue, this Court agrees with the Magistrate Judge that the
hypothetical posed to the vocational expert included all limitations stated in the
ALJ’s residual functional capacity finding – including no production-based
demands. The vocational expert’s response listed three jobs that do not require
any crouching or kneeling, making the lack of inclusion of any such limitations
harmless. Therefore, Plaintiff’s argument as to this issue is contradicted by the
record.
Plaintiff’s second argument also lacks merit. The Plaintiff never asserted
knee pain as a basis for his disability, and the jobs listed by the vocational expert
did not involve crouching or kneeling. Thus, the Plaintiff has not shown the need
for an x-ray of the knee.
Finally, the Court agrees that the ALJ properly considered Plaintiff’s
obesity. The ALR found it to be a severe impairment at step two and then
expressly considered it at step four. The ALJ stated, “Social Security Ruling 021p provides that a claimant’s obesity should be considered in all steps of the
evaluation process.” Hearing Decision, ECF No. 11 ex. 2 at 26. Also, the ALJ
specifically included the Plaintiff’s body mass index of 38.4 and weight of 289.5
pounds as restrictions when determining the residual functional capacity.
Therefore, Plaintiff’s third argument is without merit.
Case No: 1:15-cv-00222-WTH-GRJ

Page 3 of 3

Accordingly, the Clerk is directed to enter judgment stating the following:
“The Report and Recommendation, ECF No. 21, is accepted and incorporated
herein. The decision of the Commissioner, denying benefits, is affirmed.” The
Clerk is directed to close the file.
IT IS SO ORDERED.
DONE and ORDERED at Gainesville, Florida this 28th day of March, 2017.

Case No: 1:15-cv-00222-WTH-GRJ