Browne v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

DANIELLE BROWNE,

Plaintiff,

v. Case No.: 6:21-cv-1866-DNF

COMMISSIONER OF SOCIAL

SECURITY,

Defendant.

OPINION AND ORDER

Plaintiff Danielle Browne seeks judicial review of the final decision of the

Commissioner of the Social Security Administration (“SSA”) denying her claim for

a period of disability and disability insurance benefits. The Commissioner filed the

Transcript of the proceedings (hereinafter referred to as “Tr.” followed by the

appropriate page number), and the parties filed legal memoranda setting forth their

respective positions. As explained below, the decision of the Commissioner is

AFFIRMED pursuant to § 205(g) of the Social Security Act, 42 U.S.C. § 405(g).

I. Social Security Act Eligibility, Standard of Review, Procedural

History, and the ALJ’s Decision

A. Social Security Eligibility

The law defines disability as the inability to do 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 twelve months. 42 U.S.C. §§ 416(i), 423(d)(1)(A),

1382c(a)(3)(A); 20 C.F.R. §§ 404.1505(a), 416.905(a). The impairment must be

severe, making the claimant unable to do her previous work, or any other substantial

gainful activity which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A),

1382c(a)(3)(A); 20 C.F.R. §§ 404.1505–404.1511, 416.905–416.911.

B. Standard of Review

The Commissioner’s findings of fact are conclusive if supported by

substantial evidence. 42 U.S.C. § 405(g). “Substantial evidence is more than a

scintilla and is such relevant evidence as a reasonable person would accept as

adequate to support a conclusion. Even if the evidence preponderated against the

Commissioner’s findings, we must affirm if the decision reached is supported by

substantial evidence.” Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th

Cir. 2004). In conducting this review, this Court may not reweigh the evidence or

substitute its judgment for that of the ALJ, but must consider the evidence as a whole,

taking into account evidence favorable as well as unfavorable to the decision.

Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (citation

omitted); Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995); Martin v. Sullivan,

894 F.2d 1520, 1529 (11th Cir. 1990). Unlike findings of fact, the Commissioner’s

conclusions of law are not presumed valid and are reviewed under a de novo

standard. Keeton v. Dep’t of Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir.

1994); Maldonado v. Comm’r of Soc. Sec., No. 20-14331, 2021 WL 2838362, at *2

(11th Cir. July 8, 2021); Martin, 894 F.2d at 1529. “The [Commissioner’s] failure

to apply the correct law or to provide the reviewing court with sufficient reasoning

for determining that the proper legal analysis has been conducted mandates

reversal.” Keeton, 21 F.3d at 1066.

The ALJ must follow five steps in evaluating a claim of disability. 20 C.F.R.

§§ 404.1520, 416.920. At the first step, the ALJ must determine whether the claimant

is currently engaged in substantial gainful employment. 20 C.F.R.

§ 404.1520(a)(4)(i), (b); 20 C.F.R. § 416.920(a)(4)(i), (b). At step two, the ALJ must

determine whether the impairment or combination of impairments from which the

claimant allegedly suffers is “severe.” 20 C.F.R. § 404.1520(a)(4)(ii), (c); 20 C.F.R.

§ 416.920(a)(4)(ii), (c). At step three, the ALJ must decide whether the claimant’s

severe impairments meet or medically equal a listed impairment. 20 C.F.R.

§ 404.1520(a)(4)(iii), (d); 20 C.F.R. § 416.920(a)(4)(iii), (d). If the ALJ finds the

claimant’s severe impairments do not meet or medically equal a listed impairment,

then the ALJ must determine whether the claimant has the residual functional

capacity (“RFC”) to perform her past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv),

(e)–(f); 20 C.F.R. § 416.920(a)(4)(iv), (e)–(f).

If the claimant cannot perform past relevant work, the ALJ must determine at

step five whether the claimant’s RFC permits her to perform other work that exists

in the national economy. 20 C.F.R. §§ 404.1520(a)(4)(v), (g), 416.920(a)(4)(v), (g).

At the fifth step, there are two ways in which the ALJ may establish whether the

claimant is capable of performing other work available in the national economy. The

first is by applying the Medical Vocational Guidelines, and the second is by the use

of a vocational expert. Phillips v. Barnhart, 357 F.3d 1232, 1239-40 (11th Cir.

2004); Atha v. Comm’r, Soc. Sec. Admin., 616 F. App’x 931, 933 (11th Cir. 2015).

The claimant bears the burden of proof through step four. Atha, 616 F. App’x

at 933. If the claimant meets this burden, then the burden temporarily shifts to the

Commissioner to establish the fifth step. Id.; 20 C.F.R. § 404.1520(a)(4)(v), (g); 20

C.F.R. § 416.920(a)(4)(v), (g). If the Commissioner presents evidence of other work

that exists in significant numbers in the national economy that the claimant is able

to perform, only then does the burden shift back to the claimant to prove she is unable

to perform these jobs. Atha, 616 F. App’x at 993.

C. Procedural History

Plaintiff filed an application for a period of disability and disability insurance

on January 24, 2019, alleging disability beginning on November 11, 2018. (Tr. 58,

148-49). The applications were denied initially and on reconsideration. (Tr. 58, 71).

Plaintiff requested a hearing, and on October 15, 2020, a hearing was held before

Administrative Law Judge Angela Neel (“ALJ”). (Tr. 38-57). On February 2, 2021,

the ALJ entered a decision finding Plaintiff not under a disability from November

11, 2018, through the date of the decision. (Tr. 20-33).

Plaintiff requested review of the decision, but the Appeals Council denied

Plaintiff’s request on September 7, 2021. (Tr. 1-6). Plaintiff initiated the instant

action by Complaint (Doc. 1) filed on November 8, 2021, and the case is ripe for

review. The parties consented to proceed before a United States Magistrate Judge

for all proceedings. (Doc. 22).

D. Summary of ALJ’s Decision

In this matter, the ALJ found Plaintiff meets the insured status requirements

of the Social Security Act through December 31, 2024. (Tr. 22). At step one of the

sequential evaluation, the ALJ found that Plaintiff had engaged in substantial gainful

activity since November 11, 2018, the alleged onset date. (Tr. 22). The ALJ found

Plaintiff continued to work full time at the Department of Homeland Security until

May 17, 2019. (Tr. 22-23). Based on this finding, the ALJ concluded that Plaintiff

was precluded from a finding of disability from January 1, 2019 to May 31, 2019.

(Tr. 23). The ALJ also found that there was no indication that Plaintiff had worked

at substantial gainful levels since May 31, 2019. (Tr. 23). Therefore, the ALJ

proceeded with the sequential evaluation process to determine whether Plaintiff was

disabled during the remaining period at issue.

At step two, the ALJ found that Plaintiff had the following severe

impairments: “obesity; degenerative joint disease of the right knee; and degenerative

joint disease of the right foot with exostosis, status-post surgery.” (Tr. 23). At step

three, the ALJ found Plaintiff did not have an impairment or combination of

impairments that meets or medically equals the severity of any of the listed

impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R.

§§ 404.1520(d), 404.1525, and 404.1526). (Tr. 25).

Before proceeding to step four, the ALJ found that Plaintiff had the following

RFC:

After careful consideration of the entire record, the

undersigned finds that the claimant has the residual functional

capacity to perform sedentary work as defined in 20 [C.F.R.

§] 404.1567(a) except she is limited to no climbing ladders,

ropes, and scaffolds. However, the claimant can occasionally

climb ramps and stairs. The claimant can further only

occasionally crouch and crawl, but she can frequently balance,

kneel, and stoop. There should be no work at unprotected

heights and no operating a motor vehicle.

(Tr. 25).

At step four, the ALJ relied on the vocational expert’s testimony to find

Plaintiff was incapable of performing her past relevant work as a protective officer.

(Tr. 31). At step five the ALJ considered Plaintiff’s age (38 years old on the alleged

disability onset date), education (at least high school), work experience, and RFC,

and found there were jobs that existed in significant numbers in the national

economy that Plaintiff could perform. (Tr. 32-33). Specifically, the ALJ found that

Plaintiff could perform such occupations as:

(1) addresser, DOT 209.587-010,1 sedentary, unskilled, SVP 2

(2) bonder, semiconductor, DOT 726.685-066,sedentary, unskilled, SVP 2

(3) order clerk, food and beverage, DOT 209.567-014, sedentary, unskilled,

SVP 2

(Tr. 32). The ALJ concluded that Plaintiff had not been under a disability from

November 11, 2018, through the date of the decision. (Tr. 33).

II. Analysis

On appeal, Plaintiff raises the issue of whether the ALJ mistakenly failed to

credit Plaintiff’s testimony and the medical evidence that required Plaintiff to elevate

her leg based on right-foot swelling. (Doc. 25, p. 2). The Commissioner contends

that the ALJ properly considered Plaintiff’s subjective statements about her

condition and substantial evidence supports the ALJ’s findings. (Doc. 26, p. 6-7).

A claimant may establish that she is disabled through her own testimony of

pain or other subjective symptoms. Ross v. Comm’r of Soc. Sec., 794 F. App’x 858,

867 (11th Cir. 2019) (citing Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005)).

In such a case, a claimant must establish:

“(1) evidence of an underlying medical condition and either (2)

objective medical evidence that confirms the severity of the

1 DOT refers to the Dictionary of Occupational Titles.

alleged pain arising from that condition or (3) that the

objectively determined medical condition is of such a severity

that it can be reasonably expected to give rise to the alleged

pain.”

Id. (quoting Dyer, 395 F.3d at 1210).

When evaluating a claimant’s testimony, the ALJ should consider: (1) the

claimant’s daily activities; (2) the location, duration, frequency, and intensity of the

claimant’s pain or other symptoms; (3) precipitating and aggravating factors; (4) the

type, dosage, effectiveness, and side effects of any medication to alleviate pain or

other symptoms; (5) treatment other than medication for relief of pain or other

symptoms; (6) any measures a claimant uses to relieve pain or other symptoms; and

(7) other factors concerning a claimant’s functional limitations and restrictions due

to pain or other symptoms. 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3); Ross v.

Comm’r of Soc. Sec., 794 F. App’x 858, 867 (11th Cir. 2019).

The ALJ should consider these factors along with all the evidence of record.

Ross, 794 F. App’x 867. If the ALJ discredits this testimony, then the ALJ “‘must

clearly articulate explicit and adequate reasons for’ doing so.” Id. (quoting Dyer, 395

F.3d at 1210). The ALJ may consider the consistency of the claimant’s statements

along with the rest of the record to reach this determination. Id. Such findings “‘are

the province of the ALJ,’ and we will ‘not disturb a clearly articulated credibility

finding supported by substantial evidence.’” Id. (quoting Mitchell v. Comm’r of Soc.

Sec., 771 F.3d 780, 782 (11th Cir. 2014)). A decision will be affirmed as long as the

decision is not a “broad rejection which is not enough to enable [a reviewing court]

to conclude that the ALJ considered [the claimant’s] medical condition as a whole.”

Dyer, 395 F.3d at 1211 (quotation and brackets omitted).

Plaintiff limits her argument to her limitations associated with her right foot

and the Court will do the same. At the hearing, Plaintiff testified that on a “regular

day,” she tried to elevate her leg for at least four to six hours to reduce swelling. (Tr.

50). On a day when her foot, ankle, and toes were “completely swollen,” she testified

she had to lay down, elevate her foot above her heart, and take pain medication.(T.

50). The consequences of not elevating her foot, according to Plaintiff, were that

“the swelling gets so bad where my foot starts to turn black and blue.” (Tr. 51).

In the decision, the ALJ summarized Plaintiff’s subjective complaints related

to her right foot:

The claimant stated that her right foot was frequently swollen

and she required use of crutches and a medical boot. The

claimant explained she is unable to continue working because

she cannot stand more than ten minutes due to her swollen foot.

The claimant also indicated that she is unable to sit for

prolonged periods because her foot becomes numb and swollen

(See Exhibit 4E).

(Tr. 26). The ALJ then thoroughly summarized the medical evidence. (Tr. 26-28).

After the summary of medical evidence, the ALJ made these general findings on

Plaintiff’s subjective complaints:

After careful consideration of the evidence, the undersigned

finds 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 consistent with the medical evidence and other

evidence in the record for the reasons explained in this

decision.

(Tr. 28). The ALJ then specifically addressed Plaintiff’s subjective complaints that

she alleges were disabling:

The claimant alleges her symptoms are disabling. Although

some limitations were demonstrated, the overall objective

medical records demonstrate symptom presentation is

inconsistent with the medical results and findings. . . . The x-

ray of the right foot showed mild diffuse degenerative changes

without acute fractures (Exhibit 3F/3). . . . Post-surgery of the

right foot, Dr. Bornstein continually observed the claimant was

doing well without complications, including incision site

healing well. The surgery site also repeatedly only exhibited

edema at mild to moderate levels. Furthermore, Dr. Bornstein

frequently observed there was normal muscle and motor

function without signs of pain in the calf or sensory deficits.

There is only one documented observation that range of motion

was limited in the right foot and ankle with a limping antalgic

gait. The claimant also repeatedly denied any physical

problems, including calf pain (Exhibits 5F, 7F).

(Tr. 28). The ALJ then discussed other evidence of record in support of a finding

that Plaintiff was not disabled:

As discussed in detail above, the claimant testified she

continued working full-time until May 17, 2019, attempted to

start a promotions company, and even applied for

unemployment, which both strongly infer she is capable of

working (Testimony, Exhibits 4D-9D, 5F). The claimant

testified that her employer did not accommodate her for light

duty work. However, in addition to continuing to work past the

alleged onset date, the claimant’s alleged onset date coincides

with the birth of her child. In fact, the claimant testified that

she cares for two children, ages two and five. The claimant

testified that she lives with her significant other who works

full-time, and therefore, she is home alone during the day

caring for her child. The claimant testified that she is able to

shower independently and perform light household chores, and

is able to drive for short periods. These activities are

inconsistent with one who is entirely disabled.

(Tr. 29).

The ALJ also notes that there were treatment gaps that suggest Plaintiff is not

disabled. (Tr. 29). Plaintiff was treated in 2016 and there were no further records for

treatment of bodily pain until April 2017 with podiatrist Mark D. Bornstein, D.P.M.

The next visit to Dr. Bornstein was not until July 2019, over a two-year gap. (Tr.

29). The ALJ recognized that Plaintiff briefly required a cane and crutches after

right-foot surgery in July 2019, but found they were unnecessary as of the date of

the decision. (Tr. 29). The ALJ explained that after surgery, “Dr. Bornstein

repeatedly observed the surgery site exhibited edema at mild to moderate levels,”

and found normal muscle and motor function. (Tr. 30). The ALJ acknowledged that

chiropractor Anthony Harris, D.C. found tenderness with edema in the right foot and

consultative examiner Alex C. Perdomo, M.D. observed tenderness with edema in

the right foot. (Tr. 30). Based on these limitations, the ALJ found the record supports

a reduced RFC. (Tr. 30). In the RFC, the ALJ limited Plaintiff to sedentary work,

with limitations of: no climbing ladders, ropes, and scaffolds; occasionally climbing

ramps and stairs; occasionally crouching and crawling; frequently balancing,

kneeling, and stooping; and no working at unprotected heights and no operating a

motor vehicle. (Tr. 25). Thus, the ALJ clearly considered the medical records as a

whole and articulated clear and specific reasons to find Plaintiff’s statements about

the intensity, persistence and limiting effects of her symptoms were not entirely

consistent with the medical and other evidence of record.

In support of her claim, Plaintiff cites a January 28, 2020 opinion by Dr.

Bornstein in which he found Plaintiff had permanent nerve damage in her right foot

and he found Plaintiff will never be able to return to work. (Doc. 25, p. 3).2 While

Dr. Bornstein did make these findings, the ALJ found Dr. Bornstein’s post-surgery

opinions unpersuasive because they were unsupported. The ALJ noted that post

surgery, Dr. Bornstein observed Plaintiff was doing well without complications, the

incision site was healing well, her edema was at mild to moderate levels, and her

muscle and motor functions were at normal levels. (Tr. 30). The ALJ also correctly

determined Dr. Bornstein’s opinion that Plaintiff cannot return to work is outside of

Dr. Bornstein’s expertise and is a matter reserved to the Commissioner. (Tr. 31); see

Grant v. Soc. Sec. Admin., Comm’r, No. 21-12927, 2022 WL 3867559, at *2 (11th

Cir. Aug. 30, 2022) (finding that a statement that a claimant cannot work is

2 Plaintiff does not raise the issue that the ALJ erred in finding Dr. Bornstein’s opinion

unpersuasive and cites no authority on this issue. Therefore, it is waived. See Outlaw v. Barnhart,

197 F. App’x 825, 828 n.3 (11th Cir. 2006) (holding claimant waived issue because he did not

elaborate on claim or provide citation to authority on claim); Grant v. Soc. Sec. Admin., Comm’r,

No. 21-12927, 2022 WL 3867559, at *2 (11th Cir. Aug. 30, 2022).

“‘inherently neither valuable nor persuasive,” and is a matter reserved to the

Commissioner) (citing 20 C.F.R. § 1520b(c)).

Plaintiff also cites a medical record from Robert Reppy, D.O. dated February

19, 2021. (Doc. 25, p. 3). But this record is dated after the ALJ’s decision of February

2, 2021 and was not part of the record before the ALJ. Plaintiff then cites Dr.

Perdomo’s consultative examination where he found Plaintiff could lift no more than

five to ten pounds and no repetitive bending, stooping, crouching, squatting, or

kneeling, could sit for eight hours in a workday with normal breaks, and noted that

Plaintiff was instructed to be non-weightbearing with crutches “for now.” (Doc. 25,

p. 3; Tr. 244). But Plaintiff simply cites Dr. Perdomo’s findings and makes no

argument as to them. Plus, Plaintiff does not cite medical records showing that she

was directed by any medical professional to elevate her right leg for four to six hours

a day.

Finally, Plaintiff argues that the hypothetical posed to the vocational expert

did not include a limitation to elevate a leg for four to six hours a day at waist level,

and if this limitation were included, it would preclude all employment. (Doc. 25, p.

3-4). At step five of the sequential evaluation, the ALJ must determine whether jobs

exist in significant numbers in the national economy that a plaintiff can perform.

Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1180 (11th Cir. 2011). And an ALJ

may obtain the testimony of a vocational expert to determine whether there are jobs

that exist in the national economy that a claimant can perform. Id. For the vocational

expert’s opinion to constitute substantial evidence, “the ALJ must pose a

hypothetical question which comprises all of the claimant’s impairments.” Id. (citing

Wilson v. Barnhart, 284 F.3d 1219, 1227 (11th Cir. 2002)). “If the ALJ presents the

vocational expert with incomplete hypothetical questions, the vocational expert’s

testimony will not constitute substantial evidence.” Jacobs v. Comm’r of Soc. Sec.,

520 F. App’x 948, 950 (11th Cir. 2013). But an ALJ is not required to include

findings in the hypothetical that the ALJ found to be unsupported by the record. Lee

v. Comm’r of Soc. Sec., 448 F. App’x 952, 953 (11th Cir. 2011) (citing Crawford v.

Comm’r of Soc. Sec., 363 F.3d 1155, 1161 (11th Cir. 2004)). Here, the ALJ found

Plaintiff’s subjective statements not entirely consistent with the medical evidence

and, thus, was not required to include such a limitation in the hypothetical to the

vocational expert.

For these reasons, the ALJ’s decision was supported by substantial evidence

on the findings regarding Plaintiff’s subjective statements and the medical evidence

and the ALJ did not err in these findings.

III. Conclusion

For the reasons discussed above, the Court finds that the decision of the

Commissioner is supported by substantial evidence and the Commissioner applied

the correct legal standard. The decision of the Commissioner is AFFIRMED. The

Clerk of Court is directed to enter judgment consistent with this opinion, terminate

all deadlines, and close the case.

DONE and ORDERED in Fort Myers, Florida on December 22, 2022.

nou ILAS N. RATER

UNITED STATES MAGISTRATE JUDGE

Copies furnished to:

Counsel of Record

Unrepresented Parties