GOODWIN v. BERRYHILL

Filing 21

MEMORANDUM AND OPINION - Accordingly, the decision of the Acting Commissioner to deny Plaintiff's application for DIB is AFFIRMED and Judgment shall be entered for Defendant. Signed by MAGISTRATE JUDGE CHARLES A STAMPELOS on 3/29/2017. (vkm)

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION
LEISHA A. GOODWIN,
Plaintiff,
vs.

Case No. 5:16cv261-CAS

NANCY A. BERRYHILL, Acting
Commissioner of Social
Security, 1
Defendant.
/
MEMORANDUM OPINION AND ORDER
This is a Social Security case referred to the undersigned upon
consent of the parties, ECF No. 9, and reference by District Judge Mark E.
Walker. ECF No. 10. The decision of the Acting Commissioner is affirmed.
I. Procedural History
On August 2, 2012, Plaintiff, Leisha A. Goodwin, filed an application
for a period of disability and disability income benefits (DIB) and alleged
disability beginning May 26, 2011, based on four bulging discs in her back,
two bone spurs and pinched nerve in her left side, and a learning disability.
Tr. 13, 158-59, 216. (Citations to the record (transcript/administrative

1

On January 23, 2017, Nancy A. Berryhill, became the Acting Commissioner of
Social Security.
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record), ECF No. 15, shall be by the symbol “Tr.” followed by a page
number that appears in the lower right corner.)
The application was initially denied on August 5, 2012, and upon
reconsideration on March 8, 2013. Tr. 13, 91-95, 104-08. On March 26,
2013, Plaintiff requested a hearing. Tr. 13, 109-10. On August 12, 2014,
Administrative Law Judge (ALJ) Claire R. Strong, held a video hearing in
Tallahassee, Florida, and Plaintiff appeared in Panama City, Florida.
Tr. 13, 37-38. Plaintiff testified. Tr. 41-60. Vicky H. Pratton, an impartial
vocational expert, testified. Tr. 13, 57-61, 150-51 (Resume). Michael
R. Reiter, an attorney, represented Plaintiff at the hearing. Tr. 13, 35-37,
39, 119-20.
During the hearing, the ALJ stated that the only assessments that
were completed were from March 7, 2013, Exhibit 5A, Tr. 76-89, and a
consultative examination of October 8, 2012, Exhibit 7F, Tr. 424-30. Both
assessments showed the “individual would be able to do some work.”
Tr. 56. The latest medical records were from St. Andrews Community
Medical. Id.; see Tr. 485-91 (Exhibit 12F). The ALJ stated that a statement
was needed from a doctor regarding “what they believe that she is capable
of doing at this time” and the ALJ also needed a post-hearing consultative

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examination (CE) or MSS. Tr. 57. Counsel advised that he would obtain a
doctor statement from St. Andrew’s. Id.
The vocational expert described Plaintiff’s past relevant work.
Tr. 54-56. The ALJ asked the vocational expert a hypothetical question
based on Exhibit 5A.
Q Ms. Pratt, we have a younger individual at onset who is currently
closely approaching advanced age, with an eighth grade education.
Work experience as you’ve described. This first hypothetical is based
on [Exhibit] 5A, Dr. Harris [phonetic] completed this on March the 7th,
2013 based on what was in the record at the time. Okay. He said
the individual could occasionally lift and carry up to 50 pounds,
frequently lift and carry up to 25 pounds, stand and/or walk with
normal breaks about six hours, sit with normal breaks about six
hours, push and/or pull unlimited, all posturals were -- there were no
limitations in posturals. Environmental limitations, avoid concentrated
exposure to fumes, odors, dusts, gases, and poorly ventilated areas.
Could this individual do the claimant’s past relevant work?
A Let me check one thing, your honor.
Q Okay.
A Yes, your Honor, for all the jobs except for stock clerk, not per DOT
but as performed both before and after her injury.
Tr. 57-58; see infra at 9, ¶ 6 (Plaintiff’s past relevant work).
The ALJ asked the next hypothetical questions and responses
ensued.
Q Okay. All right. Next hypothetical is based on 7F, a consultative
examination completed by Dr. Oakenson [phonetic] on October the
8th, 2012. Okay. What is -Case No. 5:16cv261-CAS

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ALJ: Counselor, what is TOC?
ATTY: I don’t know.
ALJ: There was a TOC assessment. Let’s see.
ATTY: That’s in 7F?
ALJ: Uh-huh.
ATTY: Okay.
ALJ: Talks about -- there’s a note, a TOC note dated January 17th of
‘12 where a six percent impairment rating was given with continued
capability for doing full-time, medium duty work.
ATTY: Okay, that would -- they’re referring to Tallahassee
Neurological in [Exhibit] 6F. There was on 6F6, Tallahassee
Neurological -- the doctor said that she was welcome to go back to
work at a medium duty level. That maximum medical improvement
with a six percent integration.
ALJ: Okay. All right, thank you. Okay. So Dr. Oakenson did a full
range of motion study and then he said, as a comment in closing, that
he would agree with the TOC assessment that she could do at least
moderate work. “She is doing that at home now. She appears to
have no difficulty with sitting, standing, walking, lifting, carrying,
handling objects, hearing, speaking, or traveling. I don’t even see
any significant psychological issues here. There is no physical
contra-indication to work here.” So if you would -- you would have to
give a functional definition to what he means of moderate work.
Moderate work was certainly more than likely be medium work, would
you agree, Ms. Pratt –
ATTY: Well -VE: Yes, your honor.
ALJ: Okay.
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Examination of Vocational Expert by Administrative Law
Judge
Q It -- so if we say the -- since he said he agreed with the TOC
and the TOC said that she could continue capability for doing fulltime medium duty work, that we would -- it would be reasonable
to assume that moderate means medium since he said he
agreed with the TOC.
A Yes, your honor.
Q So if the individual could do medium work, would that
individual be able to do any of the claimant’s past relevant work?
A Yes, your honor, all of the past work, with the stock clerk as
performed not per DOT. And stock clerk does vary quite a bit
from position to position. Many retail stockers report anywhere
from light to heavy. It just depends on the setting.
Q Okay. All right. Thank you.
ALJ: All right, counselor, you want to do a hypothetical or you want
to wait and see if you can get an MSS or what?
ATTY: Well, I’ll go – we’ll do a hypothetical.
ALJ: Okay.
Examination of Vocational Expert by Claimant’s
Attorney
Q On [Exhibit] 6F12, where it is noted by Tallahassee
Neurological that -- they opined that it was reasonable to do
work lifting up to 20 pounds, but they also noted that she
needed a functional capacity evaluation there. If this person
could occasionally lift 20 pounds, frequently only lift 10
pounds, and then could stand or walk for six hours, sit for six
hours with no postural limitations, would the person be able
to do the past relevant work?
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A The part salesperson per DOT but not as performed, the cleaner,
housekeeping, companion, deli manager, both DOT and as
performed.
Q Okay.
ATTY: That’s all I have, your honor, then I would of course ask that
we keep the record open to get a physical capacity from St.
Andrew’s Clinic.
ALJ: Okay. All right, we’ll do that. Ms. Goodwin, thank you for
coming in and good luck to you. As soon as I get a -- something else
that your attorney’s going to try to get for me, when I get that I’ll be
able to make a better decision in your case and it will be mailed to
you to your home address with a copy to your attorney.
Tr. 58-61. The hearing closed.
On February 5, 2015, the ALJ informed Plaintiff’s counsel by letter
that she had secured additional evidence “proffered to the claimant’s
representative (Exhibit 17E),” which would be placed in the record: a
Consultative Examination with assessment and a Physical Functional
Capacity Form dated January 28, 2015, and a Radiology Report
(lumbosacral spine) dated January 14, 2015. Tr. 13, 268-69. These
documents appear in the record at pages 492 through 505 (Exhibits 13F
and 14F), Tr. 492-505, and were considered by the ALJ. Tr. 13, 24-27.
Counsel requested additional time “to secure a medical source statement,”
but no additional information was received by the ALJ. Tr. 13. The ALJ

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also noted: “Evidence discussed prior to the claimant’s alleged onset date
is provided for historical purposes.” Tr. 13.
On March 6, 2015, the ALJ entered her decision and denied Plaintiff’s
application for DIB concluding that Plaintiff was not disabled from May 26,
2011, through the date of her decision. Tr. 13-30.
On April 6, 2015, Plaintiff requested review of the ALJ’s decision.
Tr. 6-9. On July 22, 2016, the Appeals Council denied Plaintiff’s request for
review, Tr. 1-5, stating, in part, that it had considered a Radiology Report
from Bay Medical Center dated September 2, 2015, consisting of three
pages. Regarding the latter information, the Appeals Council concluded:
“This new information is about a later time. Therefore, it does not affect the
decision about whether you were disabled beginning on or before March 6,
2015,” the date of the ALJ’s decision. Tr. 2. (This information is not
included in the record. Tr. 15.) The ALJ’s decision stands as the final
decision of the Commissioner. See 20 C.F.R. § 404.981.
On September 19, 2016, Plaintiff filed a Complaint with this Court
seeking review of the ALJ’s decision. ECF No. 1. The parties filed
memoranda of law, ECF Nos. 19 and 20, which have been considered.

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II. Findings of the ALJ
1. “The claimant meets the insured status requirements [for DIB] of
the Social Security Act through December 31, 2017.” Tr. 15.
2. “The claimant has not engaged in substantial gainful activity since
May 26, 2011, the alleged onset date.” Id.
3. “The claimant has the following severe impairments: osteoarthritis;
lumbar spondylosis of L2-L3; lumbar herniated disc; thoracic
herniated disc; myofascial pain; and essential tremors.” Tr. 16.
The ALJ also considered other impairments of obesity,
hypertension, gastroesophageal reflux disease (GERD), migraine
headaches, and asthma, and concluded that the medical record
did not support any significant functional limitations. Id. The ALJ
also considered Plaintiff’s “subjective complaints of breast cancer”
and determined that the “longitudinal medical record does not
support a finding of a medically determinable impairment.” Id.
4. “[T]he claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of
the listed impairments in 20 CFR Part 404, Subpart P, Appendix
1.” Tr. 16.
5. “[T]he claimant has the residual functional capacity [RFC] to
perform medium work as defined in 20 CFR 404.1567(c) except
she can occasionally lift and carry up to 50 pounds and frequently
lift and carry up to 25 pounds. She can stand and/or walk with
normal breaks for six hours in an eight-hour workday. She can sit
with normal breaks for six hours in an eight-hour workday. She
does not have postural limitations (climbing, balancing, stooping,
kneeling, crouching and crawling), and her ability to push and/or
pull is unlimited. She must avoid concentrated exposure to fumes,
odors, dust, gas or ventilated areas.”2 Tr. 17.
2

“Occasionally” means: “activity or condition exists up to 1/3 of the time.”
Dictionary of Occupational Titles (DOT) (4th ed., rev. 1991), Appendix C: Components
of the Definition Trailer, § IV Physical Demands-Strength Rating. “Frequently” means:
“activity or condition exists from 1/3 to 2/3 of the time.” Id. Medium work means, in
part, “lifting no more than 50 pounds at a time with frequent lifting or carrying of objects
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6. The claimant is capable of performing past relevant work as a
salesperson, auto parts, with a Specific Vocational Preparation
(SVP) level of 5, light, skilled job performed at medium exertional
level; stock clerk (actually performed), with an SVP level of 4,
heavy, semi-skilled job, performed at the medium and light
exertional levels; home attendant, a medium, semi-skilled job, with
an SVP of 3; cleaner/housekeeper, a light, unskilled job with an
SVP of 2; companion, a light, unskilled job, with an SVP of 2; and
deli manager, food services, a light, skilled job, with an SVP of 5.
This work does not require the performance of work-related
activities precluded by the claimant’s RFC. Tr. 28; see Tr. 54-55.
The ALJ made alternative findings at step five that are not
contested. Tr. 29-30.
7. “The claimant has not been under a disability, as defined in the
Social Security Act, from May 26, 2011, through the date of [the
ALJ’s] decision.” Tr. 30.
III. Legal Standards Guiding Judicial Review
This Court must determine whether the Commissioner’s decision is
supported by substantial evidence in the record and premised upon correct
legal principles. 42 U.S.C. § 405(g); Chester v. Bowen, 792 F.2d 129, 131
(11th Cir. 1986). “Substantial evidence is more than a scintilla, but less
than a preponderance. It is such relevant evidence as a reasonable person
would accept as adequate to support a conclusion.” Bloodsworth v.
Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983) (citations omitted); accord
Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). “The

weighing up to 25 pounds. If someone can do medium work, we determine that he or
she can also do sedentary and light work.” 20 C.F.R. § 404.1567(c).
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Commissioner’s factual findings are conclusive if supported by substantial
evidence.” Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002)
(citations omitted). The court may not 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. Moore, 405 F.3d at 1211. 3
The burden is on the claimant to prove that she is disabled. Bell v.
Bowen, 796 F.2d 1350, 1352 (11th Cir. 1986) (citing 20 C.F.R. §§
404.1525, 404.1526); Wilkinson v. Bowen, 847 F.2d 660, 663 (11th Cir.
1987). “In making an initial determination of disability, the examiner must
consider four factors: ‘(1) objective medical facts or clinical findings; (2)
diagnosis of examining physicians; (3) subjective evidence of pain and
disability as testified to by the claimant and corroborated by [other
observers, including family members], and (4) the claimant’s age,

3

“If the Commissioner’s decision is supported by substantial evidence we must
affirm, even if the proof preponderates against it.” Phillips v. Barnhart, 357 F.3d 1232,
1240, n.8 (11th Cir. 2004) (citations omitted). “A ‘substantial evidence’ standard,
however, does not permit a court to uphold the Secretary’s decision by referring only to
those parts of the record which support the ALJ. A reviewing court must view the entire
record and take account of evidence in the record which detracts from the evidence
relied on by the ALJ.” Tieniber v. Heckler, 720 F.2d 1251, 1253 (11th Cir. 1983).
“Unless the Secretary has analyzed all evidence and has sufficiently explained the
weight he has given to obviously probative exhibits, to say that his decision is supported
by substantial evidence approaches an abdication of the court’s ‘duty to scrutinize the
record as a whole to determine whether the conclusions reached are rational.’” Cowart
v. Schweiker, 662 F.2d 731, 735 (11th Cir. 1981) (citations omitted).
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education, and work history.’” Bloodsworth, 703 F.2d at 1240 (citations
omitted).
A disability is defined as a physical or mental impairment of such
severity that the claimant is not only unable to do past relevant work, “but
cannot, considering his age, education, and work experience, engage in
any other kind of substantial gainful work which exists in the national
economy.” 42 U.S.C. § 423(d)(2)(A). A disability is an “inability to engage
in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or
which has lasted or can be expected to last for a continuous period of not
less than 12 months.” 42 U.S.C. § 423(d)(1)(A); see 20 C.F.R. § 404.1509
(duration requirement). Both the “impairment” and the “inability” must be
expected to last not less than 12 months. Barnhart v. Walton, 535 U.S. 212
(2002). In addition, an individual is entitled to DIB if she is under a
disability prior to the expiration of her insured status. See 42 U.S.C.
§ 423(a)(1)(A); Moore v. Barnhart, 405 F.3d at 1211; Torres v. Sec’y of
Health & Human Servs., 845 F.2d 1136, 1137-38 (1st Cir. 1988); Cruz
Rivera v. Sec’y of Health & Human Servs., 818 F.2d 96, 97 (1st Cir. 1986).
The Commissioner analyzes a claim in five steps. 20 C.F.R.
§ 404.1520(a)(4)(i)-(v).
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1. Is the individual currently engaged in substantial gainful
activity?
2. Does the individual have any severe impairments?
3. Does the individual have any severe impairments that meet
or equal those listed in Appendix 1 of 20 C.F.R. Part 404,
Subpart P?
4. Does the individual have the residual functional capacity
(RFC) to perform work despite limitations and are any
impairments which prevent past relevant work?4
5. Do the individual’s impairments prevent other work?
A positive finding at step one or a negative finding at step two results in
disapproval of the application for benefits. A positive finding at step three
results in approval of the application for benefits. At step four, the claimant
bears the burden of establishing a severe impairment that precludes the
performance of past relevant work. Consideration is given to the
assessment of the claimant’s RFC and the claimant’s past relevant work. If

4

An RFC is the most a claimant can still do despite limitations. 20 C.F.R.
§ 404.1545(a)(1). It is an assessment based upon all of the relevant evidence including
the claimant’s description of her limitations, observations by treating and examining
physicians or other persons, and medical records. Id. The responsibility for
determining claimant’s RFC lies with the ALJ. 20 C.F.R. § 404.1546(c); see SSR 96-5p,
1996 SSR LEXIS 2, at *12 (July 2, 1996) (“The term “residual functional capacity
assessment” describes an adjudicator’s finding about the ability of an individual to
perform work-related activities. The assessment is based upon consideration of all
relevant evidence in the case record, including medical evidence and relevant
nonmedical evidence, such as observations of lay witnesses of an individual’s apparent
symptomatology, an individual’s own statement of what he or she is able or unable to
do, and many other factors that could help the adjudicator determine the most
reasonable findings in light of all the evidence.”).
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the claimant can still do past relevant work, there will be a finding that the
claimant is not disabled. If the claimant carries this burden, however, the
burden shifts to the Commissioner at step five to establish that despite the
claimant’s impairments, the claimant is able to perform other work in the
national economy in light of the claimant’s RFC, age, education, and work
experience. Phillips, 357 F.3d at 1237; Jones v. Apfel, 190 F.3d 1224,
1229 (11th Cir. 1999); Chester, 792 F.2d at 131; MacGregor v. Bowen, 786
F.2d 1050, 1052 (11th Cir. 1986); 20 C.F.R. § 404.1520(a)(4)(v), (e) & (g).
If the Commissioner carries this burden, the claimant must prove that he or
she cannot perform the work suggested by the Commissioner. Hale v.
Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987).
As the finder of fact, the ALJ is charged with the duty to evaluate all
of the medical opinions of the record resolving conflicts that might appear.
20 C.F.R. § 404.1527. When considering medical opinions, the following
factors apply for determining the weight to give to any medical opinion: (1)
the frequency of examination and the length, nature, extent of the treatment
relationship; (2) the evidence in support of the opinion, as “[t]he more a
medical source presents relevant evidence to support an opinion,
particularly medical signs and laboratory findings, the more weight” that
opinion is given; (3) the opinion’s consistency with the record as a whole;
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(4) whether the opinion is from a specialist and, if it is, it will be accorded
greater weight; and (5) other relevant but unspecified factors. 20 C.F.R.
§ 404.1527(b) & (c).
The opinion of the claimant’s treating physician must be accorded
considerable weight by the Commissioner unless good cause is shown to
the contrary. Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997).
This is so because treating physicians “are likely to be the medical
professionals most able to provide a detailed, longitudinal picture of your
medical impairment(s) and may bring a unique perspective to the medical
evidence that cannot be obtained from the objective medical findings alone
or from reports of individual examinations, such as consultative
examinations or brief hospitalizations.” 20 C.F.R. § 404.1527(c)(2). “This
requires a relationship of both duration and frequency.” Doyal v. Barnhart,
331 F.3d 758, 762 (10th Cir. 2003). “‘The treating physician doctrine is
based on the assumption that a medical professional who has dealt with a
claimant and his maladies over a long period of time will have a deeper
insight into the medical condition of the claimant than will a person who has
examined a claimant but once, or who has only seen the claimant’s medical
records.’ Barker v. Shalala, 40 F.3d 789, 794 (6th Cir. 1994) (emphasis
added).” Id.
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The reasons for giving little weight to the opinion of the treating
physician must be supported by substantial evidence, Marbury v. Sullivan,
957 F.2d 837, 841 (11th Cir. 1992), and must be clearly articulated.
Phillips, 357 F.3d at 1241. “The Secretary must specify what weight is
given to a treating physician’s opinion and any reason for giving it no
weight, and failure to do so is reversible error.” MacGregor, 786 F.2d at
1053.
The ALJ may discount a treating physician’s opinion report regarding
an inability to work if it is unsupported by objective medical evidence and is
wholly conclusory. Edwards v. Sullivan, 937 F.2d 580, 583-84 (11th Cir.
1991). Stated somewhat differently, the ALJ may discount the treating
physician’s opinion if good cause exists to do so. Hillsman v. Bowen, 804
F. 2d 1179, 1181 (11th Cir. 1986). Good cause may be found when the
opinion is “not bolstered by the evidence,” the evidence “supports a
contrary finding,” the opinion is “conclusory” or “so brief and conclusory that
it lacks persuasive weight,” the opinion is “inconsistent with [the treating
physician’s own medical records,” the statement “contains no [supporting]
clinical data or information,” the opinion “is unsubstantiated by any clinical
or laboratory findings,” or the opinion “is not accompanied by objective
medical evidence.” Lewis, 125 F.3d at 1440; Edwards, 937 F.2d at 583
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(citing Schnorr v. Bowen, 816 F.2d 578, 582 (11th Cir. 1987)). Further,
where a treating physician has merely made conclusory statements, the
ALJ may afford them such weight to the extent they are supported by
clinical or laboratory findings and are consistent with other evidence as to a
claimant’s impairments. Wheeler v. Heckler, 784 F.2d 1073, 1075 (11th
Cir. 1986).
Plaintiff bears the burden of proving that she is disabled, and
consequently, is responsible for producing evidence in support of her claim.
See 20 C.F.R. § 404.1512(a); Moore, 405 F.3d at 1211.
IV. Legal Analysis
The ALJ did not err when denying Plaintiff’s application for
Social Security benefits.
Plaintiff raises three issues for consideration: First, Plaintiff argues
the ALJ failed to follow Social Security rules when evaluating Plaintiff’s
credibility; second, the ALJ failed to follow Social Security rules when
evaluating the weight of treating source medical opinions; and third, the
ALJ failed to incorporate a proper hypothetical question when the
vocational expert was questioned during the hearing. ECF No. 19 at 9-13.
1.
The second issue will be discussed first. Plaintiff argues that the ALJ
erred when she did not properly credit the opinions of her treating physician
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Karin Maddox, M.D., whose opinion was consistent with the medical
opinion of James Talkington, M.D., Tr. 19, 281-84, 314-21, see infra at 19,
who provided a consultative examination assessment regarding Plaintiff’s
Workers’ Compensation claim, and Anthony Posca, M.D., 5 and when giving
greater weight to other opinions that were not supported by the record.
ECF No. 20 at 4-6, 11-12.
The ALJ began her discussion of the medical evidence when Plaintiff
presented at Bay Medical Center on November 1, 2010, due to back pain.
Tr. 18, 271-72. Plaintiff testified that she sustained a back injury at work.
Id. Plaintiff was anxious and had muscle spasms but, otherwise, the
physical examination was normal. She was diagnosed with acute low back
pain; her condition improved with conservative treatment. Id. Plaintiff
received follow-up care at Bay Walk-In Clinic on November 2, 2010,
complaining of lower back pain and diagnosed with lumbago myofascitis.
Tr. 19, 305.
Her muscle strength was five out of five and she had full range of
motion, but was prescribed narcotic pain medication. Plaintiff exhibited
symptoms associated with back pain two days later, but her muscle

5

Dr. Posca treated Plaintiff at the Bay Walk-In Clinic. See Tr. 18-19, 285-93,
297-307.
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strength and range of motion in all extremities remained the same. Tr. 19,
297.
On November 4, 2010, Dr. Posca completed a Florida Workers’
Compensation Uniform Medical Treatment form and “indicated the
claimant’s functional limitations and restrictions were of such severity that
she cannot perform activities in a sedentary level as of October 23, 2010
(Exhibit 2F/19).”6 Tr. 19, 299. The ALJ noted, however, that “this opinion
addresses a period well before the claimant’s alleged onset date and the
context of this assessment suggests only a temporary restriction pending
contemplated medical improvement, and as such, I afford little weight to
this opinion.” Tr. 19.
Plaintiff underwent an MRI of the lumbar spine on November 5, 2010,
and “the study showed moderate disk degeneration with wide disk
protrusion of moderate size that causes some deformity at L2-3, left
posterior disk herniation of moderate size at T11-12, moderate disk
degeneration at T12-L1, and small posterior disk protrusions at L4-5 and
L5-S1. (Exhibits 2F/14-15; 3F).” Tr. 19, 294-95, 312-13.

6

On November 9, 2010, Dr. Posca opined Plaintiff was unable to perform many
functional activities, but could return to “light duty only.” Tr. 288. She had not reached
MMI. Id.
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Dr. Posca referred Plaintiff to Dr. Talkington “for a consultation
regarding her Workman’s Compensation claim.” Tr. 19. The ALJ
discussed Dr. Talkington’s examination results and findings of November
17, 2010, but determined that his “findings are not consistent with his
physical examination. As previously mentioned, her musculoskeletal
examination was unremarkable. Her gait was normal. Her straight legraising test was normal. She had ‘mild’ muscle spasm on both sides. She
was well nourished and in good health.” Tr. 19, 281-84, 319-21. The ALJ
also discussed the results of a follow-up appointment with Dr. Talkington on
December 8, 2010, Tr. 317-18, and noted, in part, that “[t]he physical
examination was normal. Her straight leg raise testing was normal. She
had ‘mild’ muscle spasm on both sides. The claimant was diagnosed with
acute left and acute right low back pain.” Tr. 19, 318; see Tr. 315-16 (Apr.
4, 2011, for similar results and related to light-duty with present restrictions;
treatment included physical therapy and therapeutic injections/blocks.). On
May 16, 2011, Dr. Talkington noted Plaintiff missed her appointment and
no follow-up was necessary. Tr. 314.

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At this point, the ALJ began a lengthy discussion of Plaintiff’s
treatment at Brain and Spine Center, LLC (BSC), which began in January
and February 2011. 7 Tr. 19-20.
From January 2011 through February 2011, she received treatment
for myofascial pain, back pain, and muscle spasms at Brain and
Spine Center, LLC (Exhibit 4F). She also stated that physical
therapy did not help and that she was limited to light work. Her blood
pressure during this time was 121/91 and 118/82. Although the
examiner noted that her gait was antalgic, that Romberg was
negative, and that she had multiple trigger points in the lumbar
region, the claimant denied numbness, tingling and weakness of the
legs. Additionally, her muscle strength was 5 out of 5 in all
extremities and there was evidence of atrophy. In these records, she
was diagnosed with lumbar radiculopathy, thoracic pain, and
myofascial pain. In terms of treatment, she was prescribed narcotic
pain medication and she received therapeutic injections/blocks.
Although the claimant has received treatment for the allegedly
disabling impairment(s), that treatment has been essentially routine
and/or conservative in nature (Exhibit 4F).
The claimant returned to Dr. Talkington’s office on April 4, 2011
(Exhibit 3F). The claimant continued to report, “The pain is
somewhat better since its onset” (Exhibit 3F) [Tr. 315]. She stated
her treatment included epidural therapeutic injection/blocks.
Dr. Talkington noted, “In general, the current spine problem is
basically stable and unchanged since its onset” (Exhibit 3F/8)
[Tr. 315, 317 (same on Dec. 8, 2010)]. The physical examination
was normal. Her straight leg raise testing was normal. She had
7

Before referring to this discussion, Plaintiff appears to argue that the ALJ erred
in her consideration of “treatment notes and test results” from Dr. Karin Maddox, ECF
No. 19 at 4-5, 11-12. The notes are from Douglas L. Stringer, M.D., of BSC. See
Tr. 341-58, 387-97. Plaintiff was also seen by Merle P. Stringer, M.D., of BSC from
January through July 2011. See Tr. 359-84, 398-405. (Among other statements, on
August 1, 2011, Dr. Douglas Stringer released Plaintiff to “return to work at light duty
with maximum lifting of 20 lbs.” Tr. 353, 358.) Dr. Maddox also works at BSC and saw
Plaintiff from January and February 2011. Tr. 323-35. The ALJ referred to
Dr. Maddox’s patient notes and the patient notes from Drs. Stringer. Tr. 19-20 (Exhibits
4F and 5F, respectively).
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“mild” muscle spasm on both sides. The claimant was diagnosed
with acute left and acute right low back pain [Tr. 316 (Apr. 4, 2011,
patient to return in six weeks)].
She underwent an MRI of the thoracic spine on May 10, 2011,
which revealed disk degeneration of moderate degree at T11-12
and T 12-11, mild facet degeneration at T9-10 and T 10-11; and
“potentially significant disease in the cervical region, primarily at C56 and C6-7 (Exhibit 5F/46-47).
From April 2011 through August 2011, she received treatment at
Brain and Spine Center, LLC for myofascial pain, back pain, neck
pain, pain in her thoracolumbar area with some numbness
involving her feet, difficulty with urinary hesitance and urinary
frequency, some numbness involving her leg legs, some difficulty
ambulating due to back pain, elevated blood pressure, an muscle
spasms (Exhibit 5F). Her treating physicians were Merle Stringer,
M.D., and Douglas Stringer, M.D. Drs. Stringer noted that she had
a limping gait, decreased upper and lower extremity strength,
marked muscle spasm, myofascitis with trigger point tenderness,
and straight leg raise testing was positive, but there was no
evidence of edema and she had full range of motion of all joints
(Exhibit 5F/2-4, 8-9, 1 5 -16, 22-23, 27-28, 34-35, 41-42, 50-51, 5556, 61). In fact, the claimant routinely denied joint pain, joint
swelling, muscle pain, muscle weakness, unsteadiness, neck pain,
neck stiffness, headaches, numbness, difficulty breathing on
exertion, shortness of breath, gastrointestinal issues, trouble
walking or easy fatigability (Exhibit 5F/5, 10, 17-18, 29, 36-38, 4345, 52, 57, 62). In these records, she was diagnosed with mid to
lower thoracic pain; lumbar disc disease; low back pain; bilateral
leg pain (but no evidence of nerve root compression); bulging disc
at T11-T12 and T12-L1 without significant cord compression;
bulging disc of L1 to S1, without significant nerve root compression
or spinal stenosis; S1 joint tenderness; and L3-L4, L4-L5, L5-S1
bilateral lumbar facet irritation. In terms of treatment, she was
prescribed narcotic pain medication because physical therapy did
not relieve her pain. Although the claimant has received treatment
for the allegedly disabling impairment(s), the previously discussed
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records show that treatment has been essentially routine and/or
conservative in nature (Exhibit 5F).
Tr. 19-20.
Plaintiff’s argument that Dr. Douglas Stringer’s notes should have
been given controlling weight is rejected. ECF No. 19 at 11-12 (referring to
Dr. Maddox). The notes cited by Plaintiff include her subjective statements
to her physicians and a few clinical findings and diagnoses. ECF No. 19 at
4-6; Tr. 341-43, 347, 351. 8
Assuming for the sake of argument that the notes are interpreted as
“medical opinions,” see 20 C.F.R. § 404.1527(a)(2), Plaintiff did not show
that the opinions undermine the ALJ’s assessment of her RFC. The ALJ
considered the relevant medical records, and “there is no rigid requirement

8

As of August 29, 2011, Dr. Douglas Stringer noted that Plaintiff “is still
complaining of thoracic and lumbar pain. She has no radicular pain. She has been
referred to Shand’s regarding a herniated thoracic disk. Apparently she was sent to
Tallahassee by her insurance company rather than Gainesville. She is not working and
last worked on 05/23/2011.” Tr. 345 (Exhibit 5F at 1-6 of 71). A review of systems
indicated joint pain and swelling, muscle pain, and muscle weakness were not present.
Tr. 344. She had a “limping gait.” Tr. 343. Her upper extremity inspection indicated
good pulses, no evidence of edema, full range of motion of her shoulders, elbows and
wrists, bilaterally. Her lower extremity inspection indicated no evidence of edema, full
range of motion of her hips, knees and ankles bilaterally. Tr. 342. The upper and lower
extremities indicated a 4/5 and 3.5/5 in all muscle groups, respectively, and her upper
and lower extremity reflexes were 3/5. Id. Thoracic flexion and extension was 50% and
lateral bending and extension was 70% of normal. Tr. 341. Plaintiff was prescribed
Lortab for 30 days starting August 29, 2011, with no refill, because of failed
conservative treatment, etc. Tr. 340-41. It is also noted that Plaintiff “indicates
appropriately that opioid analgesics have decreased patient’s pain and improved
patient’s function with no significant side effects.” Tr. 340. “Analgesic relief is good,
activity level is good.” Id. Plaintiff was to follow-up in one month. Id.
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that the ALJ specifically refer to every piece of evidence in his decision”
provided the ALJ’s decision is sufficient to enable the court to conclude that
the ALJ properly consider the claimant’s condition as a whole. Dyer v.
Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005).
The ALJ assessed Plaintiff’s RFC during the relevant period from her
alleged onset date of May 26, 2011, to the date of the ALJ decision, March
6, 2015. Tr. 17-28. In weighing a medical source’s opinion, the ALJ
considers factors such as the evidence to support the opinion, the
consistency of the opinion with the record as a whole, and other factors.
See 20 C.F.R § 404.1527(c)(2), (4). Generally, a treating physician’s
opinion is entitled to more weight and the ALJ must “give good reasons” for
rejecting it. See 20 C.F.R § 404.1527(c)(2). An ALJ may discount the
opinion of a physician, including a treating physician, when not supported
by objective medical signs and diagnostic testing or inconsistent with the
record as a whole. Id.; Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155,
1159-69 (11th Cir. 2004).
Prior to considering the medical evidence, the ALJ summarized
Plaintiff’s reported (prior to and during the hearing) physical and mental
impairments and the manner in which they adversely affected her ability to

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carry out her daily activities and ability to work. 9 Tr. 17-18; see Tr. 25-26.
The ALJ found Plaintiff statements “not entirely credible.” Tr. 18.
Thereafter, the ALJ stated:
I incorporated appropriate restrictions into the claimant’s [RFC] to
account for any limitations associated with her medically
determinable impairments. Review of the evidence reveals she has
not been hospitalized recently for treatment. Yet the whole of the
evidence shows that consistent conservative, treatment is relatively
effective in controlling her symptoms.
Tr. 18.
The ALJ noted that in September 2011, Plaintiff indicated that despite
being released to do light duty work with a maximum lifting of 20 pounds,
see Tr. 353 (Aug. 1, 2011), she was not able to go back to her job because
they did not have any light duty jobs. Tr. 422 (Sept. 13, 2011).
Christopher S. Rumana, M.D., from Tallahassee Neurological Clinic,
noted that as of September 2011, Plaintiff had reached maximum medical
improvement with a six percent impairment rating. Tr. 412, 422.
Dr. Rumana noted after a January 17, 2012, office visit: “She ultimately had
a function capacity evaluation test performed September 20, 2011[,] which
said that she could do medium duty work, 8 hours per day, 40 hours per
9

Although not dispositive, the claimant’s activities may show that her symptoms
are not as limiting as alleged. See Macia v. Bowen, 829 F.2d 1009, 1012 (11th Cir.
1987); 20 C.F.R. §§ 404.1527(c)(4), 404.1529(c)(3)(i). But see Lewis v. Callahan, 125
F.3d at 1441 (“participation in everyday activities of short duration, such as housework
or fishing” does not disqualify a claimant from disability).
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week. She reports that she has not been back to work as of yet. She
presents for recheck. She reports some continuing back pain.” Tr. 412.
His impression included: “From my standpoint she is welcome to go back to
work, doing medium duty work.” Tr. 20-21, 416, 422. The ALJ gave
Dr. Rumana’s assessment from January 17, 2012, “significant weight
because it is consistent with the whole of the evidence. For instance, in
January 2015, the consultative examiner [Krzysztof Lewandowski, M.D.]
noted the claimant was able to perform medium work (Exhibit 14F) [Tr.
495-505].” Tr. 21; see Tr. 24. (Dr. Lewandowski noted, however, that
“heavy lifting will aggravate [Plaintiff’s] back problem.” Tr. 500.)
On March 7, 2013, Walter Harris, M.D., a non-examining state
agency physician, reviewed the available evidence and opined that Plaintiff
could lift and/or carry up to 50 pounds occasionally and 25 pounds
frequently; she could stand/walk for about six hours in an 8-hour workday;
sit (with normal breaks) for about six hours in an 8-hour workday; she was
unlimited in her ability to push and pull; she had no postural limitations; and
she should avoid concentrated exposure to fumes, odors, dusts, gases,
and poor ventilation. Tr. 27, 85-87. (The ALJ referred to these findings
during the hearing. Tr. 56.) The ALJ noted that Dr. Harris’s “opinions
generally do not carry the same weight as examining or treating
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physicians,” but further stated that his “assessment similarly supports a
finding of ‘not disabled’ and is due significant weight in that regard.”
Tr. 27. The ALJ gave his opinions “great weight,” including the conclusion
that Plaintiff “was capable of performing reduced medium work.” Id.; see
20 C.F.R. § 404.1527(e)(2)(i).
On October 8, 2012, Plaintiff was examined by Owen Oksanen, M.D.
Tr. 22, 424-29. (The ALJ referred to these notes during the hearing.
Tr. 56-58.) Plaintiff reported she did all the cooking, cleaning, and
shopping; 10% of the yard work; and she last worked in February 2012.
Tr. 22, 427. Plaintiff reported that she applied for a number of jobs.
Tr. 427. Dr. Oksanen noted on examination that Plaintiff had no difficulty
walking or moving around the office and she had full strength and range of
motion of the upper and lower extremities. Tr. 428-29. Dr. Oksanen noted
that Plaintiff had a “[t]otally inappropriate” straight leg raise examination
because, although she described lower back pain during the movements,
she could easily sit with her legs out front of her and she sat on the table
with her legs out in front of her. She had full range of motion to all major
joints and muscle strength was 5/5 throughout. Tr. 429. Plaintiff had a
normal gait without use of an assistive device, normal heel, toe, and
tandem walking and she walked easily of her tip toes. Id. Dr. Oksanen
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opined Plaintiff could perform at least moderate work, as she was doing at
home already, and she had no difficulty with sitting, standing, walking,
lifting, carrying, handling objects, hearing, speaking, or traveling. Tr. 22,
429. The ALJ gave Dr. Oksanen’s “medical assessments” “significant
weight.” 10 Tr. 22; see Tr. 25-26.
On September 22, 2013, Plaintiff presented to the emergency room
at Bay Medical Center with “lower extremity problems.” Tr. 457. A Doppler
showed no lower extremity deep venous thrombosis, but thrombosed
superficial varicosities within the left calf. Tr. 22, 468. On examination,
[d]espite the edema, the claimant had full range of motion in her
upper extremities, she had normal muscle strength in her upper and
lower extremities, she had good shoulder movement, her spine
appeared normal, and there was no evidence of rhonchi or wheezing
(Exhibit 9F/4). She reported that her condition improved after
receiving routine treatment (Exhibit 9F/7). The claimant was
prescribed medication.
10

Dr. Oksanen was aware of a patient note from TOC that Plaintiff had a 6%
impairment rating, “with continued capability for doing full time, medium duty work.”
Tr. 22, 427; see Tr. 58-60. Dr. Oksanen “diagnosed the claimant with thoracic spine,
lumbar spine, and left shoulder pain. He also noted, ‘It was notable that she was ready
to find something wrong with her, in a setting where husband is already on disability’
(Exhibit 7F/5).” Tr. 22, 428. The ALJ referred to Dr. Oksanen’s notes on two occasions
in her decision and reiterated her understanding of his findings, including that Plaintiff
“difficulty walking or moving around the office; she had normal range of motion in her
neck; her straight leg raise test was negative; she had full range of motion in all joints;
muscle strength was 5 out of 5 throughout; there was no evidence of warmth or
swelling; the exam was normal; her gait was normal; her thoracolumar [sic] spine range
of motion was intact; her cardiovascular, gastrointestinal, and respiratory examinations
were normal; and there was no shoulder issue observed (Exhibit 7F).” Tr. 25-26; see
Tr. 427-29. Plaintiff argues that she is prejudiced by comments made by
Dr. Oksanen and that his opinion should be discounted, Tr. 424, 429. ECF No. 19 at 5,
12. The ALJ did not mention the offending remarks.
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Tr. 22, 460.
On April 1, 2014, Plaintiff went to St. Andrew Community Medical
Center to establish care with Beverly Bond, ARNP-C. Tr. 478-82.
Plaintiff’s examination was normal with full range of motion and strength 5/5
bilateral. Tr. 480. In April 2014, an x-ray of the lumbar spine showed
diffuse lumbar spine spondylosis L2-L3 and an x-ray of the left knee
showed a possible fracture of the corner of the left knee. Tr. 23, 475.
On May 5, 2014, Plaintiff reported (to Nurse Bond) feeling well overall
except for continual left knee pain with some swelling. Tr. 474. On
examination, she had full range of motion, with slight weakness in the left
knee with some swelling. Id.
A January 14, 2015, x-ray of Plaintiff’s lumbar spine revealed mild
disk space narrowing and marginal osteophyte formation most prominent at
L1-2, L2-3, T12-L1, and to a lesser degree L5-S1. Tr. 24, 493. 11

On

January 28, 2015, at the request of the Social Security Administration,
Plaintiff was seen by Dr. Lewandowski for a consultative medical
examination. Tr. 24, 495-505. The ALJ discusses
Dr. Lewandowski’s examination results in detail. Tr. 24-25.

11

Toward the close of the hearing, the ALJ left the record open for Plaintiff’s
counsel to obtain a physical capacity assessment from St. Andrews Clinic. Tr. 61. No
follow-up assessment was provided to the ALJ. Tr. 13.
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Plaintiff complained “[m]y back hurts.” Tr. 495. Dr. Lewandowski
noted Plaintiff’s upper and lower extremities were normal with full range of
motion. Tr. 496. Plaintiff also had negative straight leg raises, normal gait,
and normal tip-toe and heel walk. Id. Dr. Lewandowski noted that despite
claims of back and knee pain, her physical examination did not reveal
musculoskeletal or neurological impairment. Id. Plaintiff’s spine exam was
normal, there was no paraspinal muscle spasms or neurological deficit. “At
this moment,” notwithstanding MRI results showing disk disease at multiple
levels, she did not have any visible functional impairment, she walked
without a limp and did not need an assisted device, and she had a mild
tremor in both hands, which did not impair her grip or fine manipulation. Id.
Dr. Lewandowski opined Plaintiff could lift and carry up to 50 pounds
occasionally and 20 pounds frequently, she could sit, stand, walk for eight
hours without interruption; she did not require a cane to ambulate; she had
no limitations with the use of her hands and feet; and there were no
postural and environmental limitations. Tr. 500-05. Plaintiff was able to
perform all daily activities listed. Tr. 505. The ALJ gave Dr. Lewandowski’s
opinion “significant weight” as it was supported by his own examination and
generally consistent with the record as a whole. Tr. 24.

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Substantial evidence supports the ALJ’s consideration of the opinions
of Drs. Oksanen and Lewandowski. As noted herein, an ALJ considers
numerous factors when evaluating a doctor’s opinion, see supra at 13-16,
23. See 20 C.F.R. § 404.1527(c). The ALJ considered the opinions of
Plaintiff’s treating physicians as well as the opinion of non-treating
physicians. The ALJ explained the weight she gave to these opinions with
sufficient specificity to withstand judicial scrutiny. No error has been
shown.
2.
Plaintiff argues that the ALJ erred when she determined that
Plaintiff’s statements about her symptoms were not entirely credible. ECF
No. 19 at 9-11. Plaintiff argues that “[t]he ALJ failed to follow the guidelines
outlined in [Social Security Ruling (SSR)] 16-3p, by ignoring the longitudinal
record of treatment and other relevant medical indications of the Plaintiff’s
back injury and resulting impairments are sufficient to adjudicate a
favorable decision at step two of the process outlined in SSR-16-3p.” ECF
No.19 at 9. Substantial evidence supports the ALJ’s credibility
determinations of Plaintiff that were interspersed among the ALJ’s
discussion of the medical evidence. See Tr. 17-28.

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The credibility of the claimant’s testimony must be considered in
determining if the underlying medical condition is of a severity which can
reasonably be expected to produce the alleged pain. Lamb v. Bowen, 847
F.2d 698, 702 (11th Cir. 1988); see Moore v. Barnhart, 405 F.3d at 1212
(“credibility determinations are the province of the ALJ”). If an ALJ refuses
to credit subjective pain testimony where such testimony is critical, the ALJ
must articulate specific reasons for questioning the claimant’s credibility.
See Wilson, 284 F.3d at 1225. Failure to articulate the reasons for
discrediting subjective testimony requires, as a matter of law, that the
testimony be accepted as true. Id. On the other hand, “[a] clearly
articulated finding with substantial supporting evidence in the record will not
be disturbed by a reviewing court.” Foote v. Chater, 67 F.3d 1553, 1562
(11th Cir. 1995).
As a threshold issue, SSR 96-7p was subsequently superseded by
SSR 16-3p on March 16, 2016, approximately one year after the ALJ
entered her decision on March 6, 2015. Tr. 30; see SSR 16-p, 20016 SSR
LEXIS 4 (Mar. 16, 2016). Plaintiff does not address whether this ruling is
retroactive. ECF No. 19 at 9-11.
“The Social Security Administration did not explicitly deem this ruling
retroactive, and neither the Eleventh Circuit nor any district court within it
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has addressed the ruling’s retroactivity.” Wilson v. Berryhill, Civil Action
No. 1:15-CV-01311-KOB, 2017 U.S. Dist. LEXIS 27697, at *25 (N.D. Ala.
Feb. 28, 2017) (citations omitted); see Bagliere v. Colvin, 1:16CV109, 2017
U.S. Dist. LEXIS 8779, at *9-18 (M.D.N.C. Jan. 23, 2017), for a detailed
discussion of the retroactivity of this SSR. The Commissioner argues that
Plaintiff does not argue that SSR 16-3p should be applied retroactively,
ECF No. 19 at 9-11, therefore the issue is waived. See Outlaw v. Barnhart,
197 F. App’x 825, 828 n.3 (11th Cir. 2006) (unpublished). ECF No. 20 at
12-13 and n.2. The Commissioner’s argument is persuasive.
As part of her RFC findings, the ALJ referred to SSR 96-7p and made
specific findings regarding Plaintiff’s credibility. Tr. 17, 25-27. The ALJ
considered Plaintiff’s and her husband’s statements (and her hearing
testimony) about her symptoms and the limitations they allegedly caused.12
Tr. 17-18, 28. In part, regarding her credibility, the ALJ noted:
After careful consideration of the evidence, I find that the
claimant’s medically determinable impairments could reasonably
be expected to cause the alleged symptoms; however, the
claimant’s statements concerning the intensity, persistence and
limiting effects of these symptoms are not entirely credible for
the reasons explained in this decision.

12

The ALJ considered her husband’s statements in accordance with SSR 06-3p,
2006 SSR LEXIS 5 (Aug. 9, 2006). See Tr. 18, 28. SSR 06-3p, cited by the ALJ,
clarified how SSA considers opinions from sources who are not what the agency terms
“acceptable medical sources.”
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I incorporated appropriate restrictions into the claimant’s residual
functional capacity to account for any limitations associated with
her medically determinable impairments. Review of the evidence
reveals she has not been hospitalized recently for treatment. Yet
the whole of the evidence shows that consistent conservative,
treatment is relatively effective in controlling her symptoms.
****
In addition to the objective medical evidence, other factors have
also been considered regarding the claimant’s allegations in
assessing her credibility as required by Social Security Ruling 967p. In August 2012 and 2013, the claimant reported that she was
not able to complete household chores due to back pain, lower
extremity pain, and tremors (Exhibits 4E; 10E). She provided
conflicting information at the hearing. Specifically, she testified that
she could make the bed, sweep the floor, vacuum, wash dishes,
cook, shop in stores with her husband, clean the bathroom, do
laundry, and mow the lawn, but only a “small portion.”13
****
Inconsistent reports and testimony from the claimant, and the fact
that the record contains observations of generally stable
examination findings without significant change in her condition,
detracts from the credibility of the claimant’s statements as to her
functional limitations and the severity of her alleged symptoms.
While the above inconsistencies may not have been the product of
a conscious attempt to mislead on the part of the claimant, they
nonetheless undermine the credibility of her statements in reporting
activities of daily living and functional abilities. Accordingly, I find
the claimant’s statements are not entirely credible pursuant to Social
Security Ruling 96-7p.
Tr. 18, 25, 27.

13

At this point, the ALJ provided a detailed discussion of Plaintiff’s reported daily
activities, interspersed with examination reports. Tr. 25-26. Also, Plaintiff denied
medication side effects, but stated that the medication was not effective. Tr. 26.
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As determined by the ALJ, the objective evidence from the record is
not consistent with Plaintiff’s subjective complaints of disabling pain.
Plaintiff did not establish additional functional limitations that preclude her
from the RFC found by the ALJ. Tr. 18-28. Rather, the ALJ considered
Plaintiff’s physical impairments and properly accounted for her functional
limitations in the RFC.
As noted above, the ALJ noted that Plaintiff was generally treated
with routine and conservative treatment, which impacted Plaintiff’s
credibility and allegations of disabling limitations. Tr. 25-27; see 20 C.F.R.
§ 404.1529(c)(3)(iv)-(v); Wolfe v. Chater, 86 F.3d 1072, 1078 (11th Cir.
1996). The ALJ also noted that Plaintiff looked for work after the alleged
onset date, which is inconsistent with her allegations of not being able to
work. 20 C.F.R. § 416.971. In addition, Plaintiff’s application for receipt of
unemployment, see Tr. 16, provides additional evidence that her condition
was not as disabling as she alleged. See 20 C.F.R. § 404.1529(c)(3)(vii).
The ALJ also considered Plaintiff’s other daily activities in evaluating
her subjective complaints of disabling symptoms. Tr. 25-26. Although not
dispositive, the claimant’s activities show the claimant symptoms are not as
limiting as alleged. See 20 C.F.R § 404.1529(c)(3)(i); see also supra at
n.9.
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Given the record as a whole, substantial evidence supports the ALJ’s
determination that Plaintiff’s subjective complaints of disabling symptoms
were not entirely credible.
3.
Plaintiff argues, in part that “[t]he ALJ did not take into consideration
the Plaintiff’s ability to do sustained work-related physical and mental
activity on a regular and continuing basis” and, as a result, erred in finding
that Plaintiff could perform past relevant work at step four of the sequential
evaluation process, Tr. 28-29. ECF No. 19 at 13. Plaintiff argues that the
ALJ reached this conclusion based on an erroneous or incomplete
hypothetical question posed to the vocational expert. Id.
After assessing Plaintiff’s RFC, the ALJ determined, at step four of
the sequential evaluation process, whether Plaintiff could perform her past
relevant work. Tr. 28. A claimant bears the burden of proving that she
could not perform her past relevant work. See Barnes v. Sullivan, 932 F.2d
1356, 1359 (11th Cir. 1991). Here, the ALJ obtained testimony from a
vocational expert to assist in the determination of whether Plaintiff could
perform her past relevant work. Tr. 57-61. The ALJ asked the vocational
expert if an individual with Plaintiff’s RFC could perform her previous work.
The vocational expert testified that the individual could perform Plaintiff’s
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past relevant work as a salesperson, auto parts; home attendant,
cleaner/housekeeper, companion, deli manager, and stock clerk as actually
performed. Tr. 28, 54-55.
Plaintiff argues that the ALJ’s hypothetical question was incomplete.
See supra at 3-6 for the hypothetical questions and responses. Plaintiff did
not prove that she had additional limitations regarding her ability to work as
determined by the ALJ and the ALJ’s determination is supported by
substantial evidence. The ALJ considered the relevant evidence in
assessing Plaintiff’s RFC and this evidence was included in her
hypothetical question to the vocational expert. The ALJ was not required to
include Plaintiff’s subjective complaints or other unsupported limitations in
her hypothetical to the vocational expert or accept the vocational expert’s
testimony in response to a hypothetical question that included, what the
ALJ found to be, unsupported limitations. See Crawford, 363 F.3d at 1161.
Plaintiff did not prove that her condition imposed limitations beyond the
limitations in the ALJ’s RFC findings in the hypothetical question posed to
the vocational expert. The vocational expert’s testimony supports the ALJ’s
finding that Plaintiff could perform her past relevant work at step four. 14

14

The ALJ also made alternative findings at step five, which are not at issue.
Tr. 29-30; see ECF No. 20 at 19 n.3.
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VI. Conclusion
Considering the record as a whole, the findings of the ALJ are based
upon substantial evidence in the record and the ALJ correctly applied the
law. Accordingly, the decision of the Acting Commissioner to deny
Plaintiff’s application for DIB is AFFIRMED and Judgment shall be entered
for Defendant.
IN CHAMBERS at Tallahassee, Florida, on March 29, 2017.
s/ Charles A. Stampelos
CHARLES A. STAMPELOS
UNITED STATES MAGISTRATE JUDGE

Case No. 5:16cv261-CAS