# Swistara v. Commissioner of Social Security

> District Court, M.D. Florida · December 28, 2022

URL: https://www.frixlaw.com/law-library/cases/10111694

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** December 28, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10111694

## How later opinions describe it (automated extraction)

- stating that the “ALJ must consider the applicant’s medical condition taken as a whole”
- noting that the regulations provide that an ALJ may rely upon a VE’s knowledge or expertise

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

THEA SWISTARA,

Plaintiff,

v. Case No. 8:21-cv-2767-MAP

COMMISSIONER OF SOCIAL SECURITY

Defendant.
/

ORDER

Plaintiff seeks judicial review of the denial of her claim for a period of disability
and disability insurance benefits (DIB).1 Plaintiff argues that the Administrative Law
Judge (ALJ) committed reversible error in (1) determining Plaintiff’s past relevant
work and (2) setting forth the residual functional capacity (RFC) and the
corresponding hypothetical to the vocational expert (VE). As the ALJ’s decision was
based on substantial evidence and employed proper legal standards, the
Commissioner’s decision is affirmed.
I. Background

Plaintiff, who was born in 1962, claimed disability beginning October 21, 2019
(Tr. 194). She was 57 years old on the alleged onset date. Plaintiff obtained a high
school education, and her past relevant work experience included work as a security

1 The parties have consented to my jurisdiction. See 28 U.S.C. § 636(c).
guard supervisor (Tr. 49, 59, 214-15). Plaintiff alleged disability due to arthritis,
depression, insomnia, sleep apnea with use of a CPAP machine, anxiety, nerve
damage in her right eye, back spasms, melanoma in remission, and arthritis in her hip,

back, and shoulder (Tr. 213).
Given her alleged disability, Plaintiff filed an application for a period of
disability and DIB (Tr. 194-95). The Social Security Administration (SSA) denied
Plaintiff’s claims both initially and upon reconsideration (Tr. 73-106, 109-19, 132-48).
Plaintiff then requested an administrative hearing (Tr. 164-65). Per Plaintiff’s request,

the ALJ held a telephonic hearing at which Plaintiff appeared and testified (Tr. 31-72).
Following the hearing, the ALJ issued an unfavorable decision finding Plaintiff not
disabled and accordingly denied Plaintiff’s claims for benefits (Tr. 12-30).
In rendering the administrative decision, the ALJ concluded that Plaintiff met
the insured status requirements through September 30, 2020, and had not engaged in

substantial gainful activity during the period from her alleged onset date of October
21, 2019, through her date last insured of September 30, 2020 (Tr. 17-18). After
conducting a hearing and reviewing the evidence of record, the ALJ determined that
Plaintiff had the following severe impairments: lumbar degenerative disc disease, left
shoulder osteoarthritis, obstructive airway disease/asthma, and obesity (Tr. 18).

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. 20). The
ALJ then concluded that, through the date last insured, Plaintiff retained the RFC to
perform light work,2 except Plaintiff could occasionally lift and/or carry 20 pounds;
could frequently lift and/or carry 10 pounds; could push/pull as much as she could
lift/carry; could sit for a period of six hours, stand for a period of six hours, and walk

for a period of six hours; was limited to frequent left overhead reach; could frequently
balance; could occasionally stoop, kneel, crouch, crawl, and climb ramps, stairs,
ladders, ropes, and scaffolds; was limited to frequent exposure to unprotected heights,
moving mechanical parts, and vibration; and was limited to frequent exposure to dust,
odors,3 fumes, pulmonary irritants, and extreme cold (Tr. 20). 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 her symptoms were not entirely
consistent with the medical evidence and other evidence (Tr. 22). Considering

Plaintiff’s noted impairments and the assessment of a VE, the ALJ determined that
Plaintiff could perform her past relevant work as a security guard, both as the job was

2 “Light work involves lifting no more than 20 pounds at a time with frequent lifting or
carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little,
a job is in this category when it requires a good deal of walking or standing, or when it involves
sitting most of the time with some pushing and pulling of arm or leg controls. To be
considered capable of performing a full or wide range of light work, you must have the ability
to do substantially all of these activities. If someone can do light work, we determine that he
or she can also do sedentary work, unless there are additional limiting factors such as loss of
fine dexterity or inability to sit for long periods of time.” 20 C.F.R. § 404.1567(b).
3 In the decision, the ALJ limited Plaintiff to frequent exposure to “orders” rather than
“odors” (Tr. 20). As the term “orders” appears in a list of identified environmental
limitations, it seems that the ALJ made a scrivener’s error and intended to limit Plaintiff’s
exposure to odors not orders.
generally performed in the national economy and as Plaintiff actually performed it (Tr.
24, 57-71). Accordingly, based on Plaintiff’s age, education, work experience, RFC,
and the testimony of the VE, the ALJ found Plaintiff not disabled at any time from

October 21, 2019, the alleged onset date, through September 30, 2020, the date last
insured (Tr. 25). Given the ALJ’s finding, Plaintiff requested review from the Appeals
Council, which the Appeals Council denied (Tr. 1-11, 187-90). Plaintiff then timely
filed a complaint with this Court (Doc. 1). The case is now ripe for review under 42
U.S.C. § 405(g).

II. Standard of Review
To be entitled to benefits, a claimant must be disabled, meaning the claimant
must be unable “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 twelve months.” 42 U.S.C. § 423(d)(1)(A). A “physical or mental
impairment” is an “impairment that results from anatomical, physiological, or
psychological abnormalities, which are demonstrable by medically acceptable clinical
and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3).
To regularize the adjudicative process, the SSA 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. § 404.1520. If an
individual is found disabled at any point in the sequential review, further inquiry is
unnecessary. 20 C.F.R. § 404.1520(a). Under this process, the ALJ must determine,
in sequence, the following: whether the claimant is currently engaged in substantial
gainful activity; whether the claimant has a severe impairment, i.e., one that
significantly limits the ability to perform work-related functions; whether the severe

impairment meets or equals the medical criteria of 20 C.F.R. Part 404, Subpart P,
Appendix 1; and whether the claimant can perform his or her past relevant work. 20
C.F.R. § 404.1520(a)(4). 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 his or her age, education, and

work experience. 20 C.F.R. § 404.1520(a)(4)(v). 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. § 404.1520(g)(1).
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 more than a scintilla and
is such relevant evidence as a reasonable person would accept as adequate to support
a conclusion.” Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011)
(citation and internal quotation marks omitted). While the court reviews the

Commissioner’s decision with deference to the factual findings, no such deference is
given to the legal conclusions. Ingram v. Comm’r of Soc. Sec., 496 F.3d 1253, 1260 (11th
Cir. 2007) (citations omitted).
In reviewing the Commissioner’s decision, 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. Mitchell v. Comm’r of Soc. Sec., 771
F.3d 780, 782 (11th Cir. 2014); Winschel, 631 F.3d at 1178 (citations omitted);
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, mandates reversal.
Ingram, 496 F.3d at 1260 (citation omitted). 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) (per curiam) (citations omitted).
III. Discussion
A. Past Relevant Work
Plaintiff first argues that the ALJ erred in determining Plaintiff’s past relevant

work as a security guard. Plaintiff contends that an apparent conflict exists between
the VE’s testimony and the job description set forth in the Dictionary of Occupational
Titles (DOT). Specifically, Plaintiff asserts that the tasks Plaintiff performed in her
past work is inconsistent with the job description of a security guard and instead more
closely aligns with the job description of an airline security representative. Compare

DOT § 372.667-034 (security guard) with DOT § 372.667-010 (airline security
representative).
At step four of the sequential evaluation process, the ALJ assesses the claimant’s
RFC and ability to perform past relevant work. See 20 C.F.R. §§ 404.1520(a)(4)(iv),
404.1545. A claimant bears the burden of proving that his or her impairments prevent
him or her from performing past relevant work. Doughty v. Apfel, 245 F.3d 1274, 1278
(11th Cir. 2001). To determine a claimant’s past relevant work experience, the ALJ
considers work done within the last 15 years that lasted long enough for the claimant

to learn to do it and that qualified as substantial gainful activity. 20 C.F.R. §§
404.1560(b)(1), 404.1565(a); Social Security Ruling (SSR) 82-62, 1982 WL 31386, at
*1 (1982). In considering a claimant’s past relevant work, “[t]he regulations require
that the claimant not be able to perform his past kind of work, not that he merely be
unable to perform a specific job he held in the past.” Jackson v. Bowen, 801 F.2d 1291,

1293 (11th Cir. 1986) (emphasis in original; citations omitted). Accordingly, a
claimant needs to demonstrate that he or she cannot return to his or her former type of
work rather than to a specific prior job. Id. (citations omitted).
To assist in determining a claimant’s ability to perform her past relevant work,

the ALJ may use the services of a VE or other resources, such as the DOT and its
companion volumes and supplements. 20 C.F.R. § 404.1560(b)(2). The VE may offer
relevant evidence within his or her expertise or knowledge regarding the physical and
mental demands of a claimant’s past relevant work, either as actually performed by
the claimant or as generally performed in the national economy, which may prove

helpful in supplementing or evaluating the accuracy of the claimant’s description of
the past relevant work. 20 C.F.R. § 404.1560(b)(2); cf. Bryant v. Comm’r of Soc. Sec., 451
F. App’x 838, 839 (11th Cir. 2012) (noting that the regulations provide that an ALJ
may rely upon a VE’s knowledge or expertise).4 The VE may also provide expert
opinion testimony in response to a hypothetical question posed by the ALJ about
whether a person with the physical and mental limitations imposed by the claimant’s

limitations can meet the demands of the claimant’s previous work, either as actually
or generally performed. 20 C.F.R. § 404.1560(b)(2).
Here, in her application, Plaintiff identified her only past job title in the prior 15
years as that of a “Security guard supervisor” at a cruise ship security check-in (Tr.
215). She described the position as scanning bags and people before they entered the

cruise ship (Tr. 215). According to Plaintiff, the job required her to use machines,
tools, or equipment; use technical knowledge or skills; and write, complete reports,
and perform other similar duties (Tr. 215). Regarding the tasks required to perform
the job, Plaintiff indicated that she would walk for one hour, stand for four hours, sit
for four hours, stoop for one hour, kneel for one hour, crouch for two hours, reach for

30 minutes, and write, type, or handle small objects for 30 minutes (Tr. 215). The job
did not require any crawling or handling of large objects but did require Plaintiff to
move luggage on a belt and frequently lift less than 10 pounds (Tr. 215). Lastly, in
performing the job, Plaintiff operated as a lead worker, supervising 15 people all day
(Tr. 215).

Subsequently, both Plaintiff’s counsel and the ALJ addressed Plaintiff’s past
work during the administrative hearing. Initially, Plaintiff’s counsel presented an

4 Unpublished opinions are not considered binding precedent but may be cited as persuasive
authority. 11th Cir. R. 36-2.
opening statement, during which he explicitly stated: “So, it appears her past relevant
work that she did, you know, security guard work, that appears to be a light
occupation” (Tr. 38-39). Following counsel’s opening statement, Plaintiff’s counsel

questioned Plaintiff regarding the job requirements of her security guard position and
inquired as to whether Plaintiff performed any other work “besides the security guard
work,” to which Plaintiff responded that she had not (Tr. 41-43). Plaintiff stated that
she worked as a supervisor for her last four years and worked as a normal security
screener screening luggage prior to that (Tr. 57). In describing her job requirements,

Plaintiff indicated that she was a supervisor walking around and making sure that all
the other employees under her supervision “were doing what they should be doing,”
but she also moved suitcases around and searched suitcases if a screener found
something suspicious, which happened about three to four times per day, and then
relieved people from their post if they needed a break and performed “pat-downs and

wanding of people” (Tr. 41-43, 56-57). Her typical workday lasted 11 hours, with
approximately nine hours spent walking around checking on other posts, although she
could sit and rest and then walk around if needed (Tr. 42-43). Additionally, along
with her supervisor, she would hire and fire people and perform scheduling for
everyone (Tr. 41-42).

Later in the administrative hearing, the ALJ asked the VE to describe Plaintiff’s
past work (Tr. 59). In response, the VE stated that Plaintiff’s job appeared to be that
of a working supervisor but that the DOT codes for the security supervisor and security
guard positions were the same, so the VE classified Plaintiff’s past work as that of a
security guard, DOT § 372.667-034 (Tr. 59). The ALJ then posed hypotheticals to the
VE, asking only whether such hypothetical individuals could perform Plaintiff’s past
work, given Plaintiff’s advanced age (Tr. 60-70). In response to the first hypothetical,

which incorporated the noted RFC limitations, the VE testified in the affirmative,
stating that Plaintiff could perform her past work with those limitations (Tr. 59-60).
Against that backdrop, Plaintiff now argues that an apparent conflict exists
between (1) the tasks Plaintiff performed in her past work and the VE’s testimony
regarding Plaintiff’s past work and (2) the DOT’s job description of a security guard.

See DOT § 372.667-034 (security guard). As noted, Plaintiff believes that her prior
work more closely aligns with the job description of an airline security representative.
See DOT § 372.667-010 (airline security representative). Based on this purported
misclassification of her past relevant work, she contends that the matter should be

remanded to the ALJ to resolve any potential conflicts between the VE’s testimony
and the DOT to address whether Plaintiff’s past relevant work was that of a security
representative or that of a security guard and, once that issue is resolved, to determine
whether Plaintiff could perform her past relevant work.
In Washington v. Comm’r of Soc. Sec., 906 F.3d 1353 (11th Cir. 2018), the Eleventh

Circuit discussed the ALJ’s duty under SSR 00-4p, 2000 WL 1898704 (Dec. 4, 2000),
to resolve conflicts between the DOT and VE evidence. In doing so, the Eleventh
Circuit indicated:
After careful review, we conclude that, pursuant to the terms of the
Ruling, and in light of the overall regulatory scheme that governs
disability claims, the ALJs within the SSA have an affirmative duty to
identify apparent conflicts between the testimony of a Vocational Expert
and the DOT and resolve them. This duty requires more of the ALJ than
simply asking the VE whether his testimony is consistent with the DOT.
Once the conflict has been identified, the Ruling requires the ALJ to offer
a reasonable explanation for the discrepancy, and detail in his decision
how he has resolved the conflict. The failure to discharge this duty means
that the ALJ’s decision, when based on the contradicted VE testimony,
is not supported by substantial evidence.

Washington, 906 F.3d at 1356. An “apparent conflict” means a conflict “reasonably
ascertainable or evident from a review of the DOT and the VE’s testimony.” Id. at
1365. “At a minimum, a conflict is apparent if a reasonable comparison of the DOT
with the VE’s testimony suggests that there is a discrepancy, even if, after further
investigation, that turns out to not be the case.” Id.
Review of the DOT job descriptions at issue in this case reveals that no apparent
conflict exists which would warrant remand. As an initial matter, the DOT indicates
that the industry designation for the airline security representative is the “air
transportation industry” and describes the job of an airline security representative as
follows:
Screens passengers and visitors for weapons, explosives, or other
forbidden articles to prevent articles from being carried into restricted
area of air terminal, performing any combination of following tasks:
Greets individuals desiring to enter restricted area and informs them that
they must be screened prior to entry. Asks individual to empty contents
of pockets into tray. Examines contents of tray for forbidden articles and
directs individual to pass through metal-detecting device. Asks individual
to remove metal articles from person if metal detector signals presence of
metal, or uses hand[-]held metal detector to locate metal item on person.
Places carry-on baggage or other containers onto x-ray device, actuates
device controls, and monitors screen to detect forbidden articles.
Requests owner to open baggage or containers when x[-]ray shows
questionable contents. Returns baggage and tray contents to individual if
no forbidden articles are detected. Notifies GUARD, SECURITY (any
industry) if forbidden articles are discovered or detector equipment
indicates further search is needed. May turn on power and make
adjustments to equipment. May perform duties of GUARD, SECURITY
(any industry). May screen boarding passengers against Federal Aviation
Administration approved profile of aircraft hijackers. May make reports.

DOT § 372.667-010, 1991 WL 673094. Regarding the security guard, the DOT
indicates that the security guard can operate in “any industry” and describes the job as
follows:
Guards industrial or commercial property against fire, theft, vandalism,
and illegal entry, performing any combination of following duties:
Patrols, periodically, buildings and grounds of industrial plant or
commercial establishment, docks, logging camp area, or work site.
Examines doors, windows, and gates to determine that they are secure.
Warns violators of rule infractions, such as loitering, smoking, or
carrying forbidden articles, and apprehends or expels miscreants.
Inspects equipment and machinery to ascertain if tampering has
occurred. Watches for and reports irregularities, such as fire hazards,
leaking water pipes, and security doors left unlocked. Observes departing
personnel to guard against theft of company property. Sounds alarm or
calls police or fire department by telephone in case of fire or presence of
unauthorized persons. Permits authorized persons to enter property.
May register at watch stations to record time of inspection trips. May
record data, such as property damage, unusual occurrences, and
malfunctioning of machinery or equipment, for use of supervisory staff.
May perform janitorial duties and set thermostatic controls to maintain
specified temperature in buildings or cold storage rooms. May tend
furnace or boiler. May be deputized to arrest trespassers. May regulate
vehicle and pedestrian traffic at plant entrance to maintain orderly flow.
May patrol site with guard dog on leash. May watch for fires and be
designated Fire Patroller (logging). May be designated according to shift
worked as Day Guard (any industry); area guarded as Dock Guard (any
industry); Warehouse Guard (any industry); or property guarded as
Powder Guard (construction). May be designated according to
establishment guarded as Grounds Guard, Arboretum (any industry);
Guard, Museum (museums); Watchguard, Racetrack (amuse. & rec.); or
duty station as Coin-Vault Guard (any industry). May be designated
Guard, Convoy (any industry) when accompanying or leading truck
convoy carrying valuable shipments. May be designated: Armed Guard
(r.r. trans.); Camp Guard (any industry); Deck Guard (fishing & hunt.;
water trans.); Night Guard (any industry); Park Guard (amuse. & rec.).

DOT § 372.667-034, 1991 WL 673100. As the job descriptions indicate, the security
representative notifies the security guard if forbidden articles are discovered or detector
equipment indicates further search is needed, meaning that in her supervisory position,
as she described it, Plaintiff’s job duties more closely resembled that of the security
guard than the security representative with respect to the screening and review of
forbidden articles. The security guard job duties also encompass several of the tasks
Plaintiff described, including patrolling and guarding buildings and docks; warning
violators of rule infractions, including carrying forbidden articles; permitting
authorized persons to enter property; and recording data. Given these descriptions,

no apparent conflict existed between the DOT and the VE’s testimony as to Plaintiff’s
past relevant work as a security guard, which falls under the same classification as a
security guard supervisor.
Indeed, as the record reflects, Plaintiff identified her past relevant work as a
security guard supervisor in her application (Tr. 215). Later, during the administrative

hearing, Plaintiff’s counsel stated, unprompted, that Plaintiff’s past work constituted
“security guard work” (Tr. 38-39). During the same administrative hearing, the ALJ
asked the VE to identify Plaintiff’s past relevant work, and the VE explained that
Plaintiff’s past relevant work appeared to be as a working supervisor but that the DOT
codes for the security supervisor and security guard positions were the same and thus

classified Plaintiff’s past work as security guard (Tr. 59). Importantly, as the
Commissioner notes, though afforded an opportunity during the administrative
hearing to question the VE regarding Plaintiff’s past relevant work, Plaintiff’s counsel
did not inquire as to any other classifications of past relevant work nor challenged the

VE’s testimony regarding the classification of Plaintiff’s past relevant work (Tr. 63-71).
Regardless, the ALJ did not need to resolve any apparent conflict between the
VE’s testimony and the DOT, as none existed. Rather, the ALJ properly relied upon
the VE’s testimony regarding Plaintiff’s past relevant work as a security guard and, as
discussed more fully below, Plaintiff’s ability to perform such past relevant work, both

as generally and actually performed. Remand therefore is not warranted on that issue.
B. RFC and Hypothetical
Plaintiff’s second point of contention involves the ALJ’s RFC determination
and corresponding hypothetical posed to the VE. Namely, Plaintiff contends that the
standing and walking limitations set forth in the RFC and the hypothetical to the VE

did not fully account for Plaintiff’s limitations as they did not address how long
Plaintiff could stand or walk at one time. Given such alleged deficiency, Plaintiff
argues that the ALJ posed an incomplete hypothetical to the VE, and thus the VE’s
testimony does not constitute substantial evidence, thereby warranting remand.
As indicated above, at step four of the sequential evaluation process, the ALJ

assesses the claimant’s RFC and ability to perform past relevant work. See 20 C.F.R.
§§ 404.1520(a)(4)(iv), 404.1545. To determine a claimant’s RFC, an ALJ makes an
assessment based on all the relevant evidence of record as to what a claimant can do
in a work setting despite any physical or mental limitations caused by the claimant’s
impairments and related symptoms. 20 C.F.R. § 404.1545(a)(1). In rendering the
RFC, therefore, the ALJ must consider the medical opinions in conjunction with all
the other evidence of record and will consider all the medically determinable

impairments, including impairments that are not severe, and the total limiting effects
of each. 20 C.F.R. §§ 404.1520(e), 404.1545(a)(2) & (e); see Jamison v. Bowen, 814 F.2d
585, 588 (11th Cir. 1987) (stating that the “ALJ must consider the applicant’s medical
condition taken as a whole”). In doing so, the ALJ considers evidence such as the
claimant’s medical history; medical signs and laboratory findings; medical source

statements; daily activities; evidence from attempts to work; lay evidence; recorded
observations; the location, duration, frequency, and intensity of the claimant’s pain or
other symptoms; the type, dosage, effectiveness, and side effects of any medication or
other treatment the claimant takes or has taken to alleviate pain or other symptoms;
treatment, other than medication, the claimant receives or has received for relief of

pain or other symptoms; any measures the claimant uses or has used to relieve pain or
symptoms; and any other factors concerning the claimant’s functional limitations and
restrictions. 20 C.F.R. §§ 404.1529(c)(3)(i)-(vii), 404.1545(a)(3); SSR 96-8p, 1996 WL
374184 (July 2, 1996); SSR 16-3p, 2017 WL 5180304 (Oct. 25, 2017).
Thereafter, at step five, the Commissioner must consider the assessment of the

RFC combined with the claimant’s age, education, and work experience to determine
whether the claimant can make an adjustment to other work. Phillips v. Barnhart, 357
F.3d 1232, 1239 (11th Cir. 2004), superseded by regulation on other grounds, 20 C.F.R. §
404.1520c, as stated in Jones v. Soc. Sec. Admin., No. 22-10507, 2022 WL 3448090, at *1
(11th Cir. Aug. 17, 2022); 20 C.F.R. § 404.1520(a)(4)(v). If the claimant can make an
adjustment to other work, a finding of not disabled is warranted. Phillips, 357 F.3d at
1239. Conversely, if the claimant cannot make an adjustment to other work, a finding

of disabled is warranted. Id. At this step, the burden temporarily shifts to the
Commissioner to show other jobs exist in significant numbers in the national economy
which, given the claimant’s impairments, the claimant can perform. See Washington,
906 F.3d at 1359 (citation omitted); see Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir.

1995); 20 C.F.R. § 404.1520(a)(4)(v). “The ALJ must articulate specific jobs that the
claimant is able to perform, and this finding must be supported by substantial evidence,
not mere intuition or conjecture.” Wilson, 284 F.3d at 1227 (citation omitted). There
are two avenues by which an ALJ may determine a claimant’s ability to adjust to other
work in the national economy; namely, by applying the Medical Vocational

Guidelines (“Grids”) and by using a VE. Phillips, 357 F.3d at 1239-40. Typically,
where the claimant cannot perform a full range of work at a given level of exertion or
where the claimant has non-exertional impairments that significantly limit basic work
skills, the ALJ should consult a VE. Id. at 1242. For a VE’s testimony to constitute
substantial evidence, however, the ALJ must pose a hypothetical question which

comprises all of the claimant’s impairments. Wilson, 284 F.3d at 1227. As the
Commissioner contends, the ALJ may rely upon a VE’s knowledge or expertise.
Bryant, 451 F. App’x at 839; see 20 C.F.R. § 404.1560(b)(2).
In this instance, the ALJ determined that Plaintiff retained the RFC to perform
a reduced range of light work – including limitations to sit for a period of six hours,
stand for a period of six hours, and walk for a period of six hours – and posed a
hypothetical to the VE with the corresponding limitations (Tr. 20-24, 59-63). Plaintiff
contends that the ALJ should have accounted for her inability to remain on her feet,

either walking or standing, for long periods of time and her need to sit periodically
during shifts. In support of her contention, Plaintiff points to her testimony and
statements to her medical practitioners, where she reported that she experienced
extreme pain and difficulties standing or walking for long periods (Tr. 42-45, 557, 579-
80). Namely, during the administrative hearing, Plaintiff testified that her typical

workday lasted 11 hours and that she would have to walk around and check posts for
approximately nine hours of each day (Tr. 43). At the same time, she indicated that,
in performing her duties, she “got away with sitting a while” such that she could sit
and rest and then walk around (Tr. 42). Then, in describing her ability to walk in
general, she stated that she could only walk for about five minutes before requiring rest

due to shooting pain from her back down her leg and could only sit for about 15
minutes at a time (Tr. 44-45). In the decision, the ALJ acknowledged Plaintiff’s
testimony regarding her symptoms and limitations but found, based on review of the
evidence of record, that, although Plaintiff had medically determinable impairments
that could reasonably be expected to cause her alleged symptoms, Plaintiff’s

statements concerning the intensity, persistence, and limiting effects of her symptoms
were not entirely consistent with the medical evidence and other evidence in the record
(Tr. 22).
Indeed, as discussed by the ALJ, the evidence of record showed that Plaintiff
suffered from several impairments, but the record simply did not support Plaintiff’s
extreme limitations regarding her ability to sit, stand, and walk (Tr. 15-24). For

example, plaintiff presented to Dr. Tien Le, a neurological spine surgeon, in May 2020
upon referral from Dr. Richard Cain (Tr. 554-56). Plaintiff presented to Dr. Le with
buttock pain and bilateral leg pain, with the pain starting at the sacrum and radiating
into her buttock and hips bilaterally and extending through the lateral legs (Tr. 554).
Plaintiff reported that her pain was aggravated when standing, she found relief when

lying down, her pain registered as a six out of 10 that day, and her pain was sharp,
dull, and aching, although she denied any back pain, focal weakness, or numbness (Tr.
554). Upon examination, however, Dr. Le noted that Plaintiff showed full range of
motion with active flexion, extension, lateral rotation, and lateral bending of the
cervical spine; normal range of motion and no thoracic kyphosis, scoliosis, or

deformity of the thoracic spine; normal lordosis and range of motion with no scoliosis
or deformity of the lumbar spine; muscle tone and bulk within normal limits; normal
gait and station; ambulation without an assistive device; hips, knees, and ankles with
full range of motion without tenderness to palpation of those joints; intact sensation to
light touch and pinprick; and normal coordination in the upper and lower extremities

(Tr. 555). Dr. Le did not recommend acute neurosurgical intervention at that time but
ordered a pelvic MRI to determine the cause of her coccygeal pain (Tr. 556). The next
month, despite reporting sharp, dull, and aching pain across her sacral region with
radiation into her buttocks, hips, and legs that worsened upon standing and rating her
pain as an eight out of 10 to Dr. Le, Plaintiff showed no focal deficits on examination,
Plaintiff’s MRI of the pelvis was unremarkable, and Plaintiff was initiated on non-
operative management with physical therapy for core and back strengthening and

given a referral for consideration of epidural steroid injections (Tr. 22-23, 557).5
At the same time, Plaintiff sought treatment from Dr. Cain for her back, hip,
shoulder, and right knee (Tr. 22-23, 329-42, 590-604). As the ALJ indicated, Plaintiff
expressed that she was experiencing severe back pain, but she showed only lumbar
tenderness and a negative straight leg raise in December 2019, so Dr. Cain provided

Plaintiff with a Medrol Dosepak and a prescription for physical therapy (Tr. 594-95).
Similarly, as the ALJ discussed, diagnostic testing and treatment notes from February
2020 further supported the ALJ’s finding that, while Plaintiff demonstrated
impairments, such impairments were not as limiting as alleged. Initially, a February
2020 lumbar spine X-ray showed that Plaintiff suffered from mild diffuse changes of

lumbar degenerative spondylosis, moderate disc height loss at L5-S1, mild disc height
loss at L3-4 and L4-5, and minimal retrolisthesis on L4 and L5 (Tr. 23, 438-39). Later
that month, Plaintiff presented for a consultative examination with Dr. Sheyar Amin,
reporting arthritis in her shoulder, hip, back, and leg and problems with her back and
neck (Tr. 23, 456-65). Plaintiff described her issues as stemming from a prior car

5 Dr. Le noted that Plaintiff’s April 2020 MRI demonstrated left paracentral disc herniation
at L5-S1 (Tr. 557). Review of the MRI indicates that Plaintiff showed bilateral facet
arthropathy with resultant bilateral foraminal stenosis but no evidence of disc herniation or
central stenosis at L5-S1 (Tr. 558). The MRI also revealed bilateral foraminal stenosis at L4-
5 (Tr. 558).
accident with symptoms worsening over the years and including current symptoms of
constant pain, trouble walking, immobility, weakness, swelling, sharp pains, and back
spasms and reported that all her symptoms were better with medication but that her

symptoms worsened with sitting and standing any length of time (Tr. 456, 459-60).
She reported that she could only sit for 20 minutes, stand for 20 minutes, and walk 25
yards due to back pain (Tr. 457). Notwithstanding Plaintiff’s statements, Dr. Amin
documented almost completely unremarkable findings, including a symmetric, steady
gait; no use of an assistive device; no palpable muscle spasms; full muscle strength in

the upper and lower extremities bilaterally; intact sensation throughout; negative
bilateral straight leg test; no joint swelling, erythema, effusion, tenderness, or
deformity; an ability to lift, carry, and handle objects; an ability to perform fine motor
skills; an ability to squat and rise from that position with moderate difficulty; an ability
to rise from a sitting position without assistance; no difficulty getting up and down

from the exam table; an ability to walk on heels and toes; normal tandem walking; an
ability to stand but not hop on one foot bilaterally; and full range of motion within
normal limits except for hip flexion and abduction on the left side (Tr. 458-64).
Following the examination, Dr. Amin made the following observations:
The patient reports that her main complaint is left hip pain with walking.
The patient reports that this has been progressively getting worse over the
past 4 years. She reports that her issues initially started after a car
accident that happened 30 years ago and then subsided; however, over
the years and more recently, her pain symptoms are starting to flare up.
She reports that around 5 years ago while walking at work, she noticed
severe left hip pain and her leg gave way and she fell. She was unable to
walk. She has since then follow[ed] with doctors and was diagnosed with
osteoarthritis, which she has been manag[ing] conservatively and she has
not had any arthroplasty. The patient reports constant pain that causes
her trouble walking; however, on my examination, the patient was sitting
up in bed and appeared very comfortable with her legs crossed under her.
Both hips and knees flexed and sitting with her legs underneath her and
did not appear uncomfortable or having any pain, so I am not entirely
sure how severe her hip condition is, but she does appear normal on my
examination. Her range of motion is normal[,] and her strength exam is
normal. Additionally, she reports that for the past 5 years, she has had
worsening of her lower back pain and she reports that she has
degenerative disc disease, there are no supporting records. She reports
sharp pain in her lower back[,] and she feels muscle spasms occasionally
in her back. This pain does not radiate to her lower extremities[,] and
she is currently taking OxyContin for hip and back pain and reports that
it gets rid of the pain. The patient’s main issue is that she feels that her
pain is limiting her from working and being outside the house as she has
difficulty walking[,] and this has caused worsening of her depression and
she feels she is homebound from this. On my examination, there is no
objective finding to suggest significant pathology[,] and she appeared
comfortable with stating that she has pain; however, she was able to
move her hips within the full range of motion without any signs of pain.
I did not feel that this is disabling for her.

(Tr. 459-60).
Plaintiff then returned to Dr. Cain in April 2020, complaining of worsening low
back pain that led to her quitting her job due to the pain, which she indicated was
worse when she stood but was also present at rest, localized with only occasional
radiation, and did not include numbness or tingling (Tr. 22-23, 597). Plaintiff stated
that physical therapy did not help but that she took Tylenol and Oxycodone she had
“laying around” that helped with her pain (Tr. 597). Upon examination, Dr. Cain
noted that Plaintiff ambulated without an assistive device and that her lumbar spine
demonstrated no outward deformity even though she showed paraspinal muscular
tenderness to palpation, limited lumbar extension, pain with lateral flexion bilaterally,
and positive straight leg raise test (Tr. 597-98). Given the perceived progression of
pain and lack of alleviation of symptoms through physical therapy and other
conservative treatments, Dr. Cain ordered the April MRI of the lumbar spine and
referred Plaintiff to Dr. Le (Tr. 598). As indicated, the only abnormal findings on the

April MRI were bilateral foraminal stenosis at L4-5 and L5-S1 and bilateral facet
arthropathy at L5-S1 (Tr. 603-04).
Later, in August 2020, Plaintiff presented to Dr. Neil Weisman for diagnostic
bilateral lumbosacral facet joint medial branch nerve block injection for medial branch
nerves L2-L5 (Tr. 23, 500-05). Plaintiff indicated 100% relief of axial lower back pain

following the procedure, which was sustained, but also reported a return of some of
the left radicular pain that had previously been relieved (Tr. 500). Plaintiff had been
utilizing Gabapentin with good tolerability and some additional analgesic effect (Tr.
500). At that time, Plaintiff reported only sharp, intermittent pain radiating to the left
leg that was improving but reported no muscle aches, no muscle weakness, no

arthralgias or joint pain, and no swelling in the extremities (Tr. 502).
Based on the foregoing and the other evidence of record cited, the ALJ properly
concluded that Plaintiff could perform the reduced range of light work with the
corresponding standing, sitting, and walking limitations. While Plaintiff points to a
couple records to support her position, such as the notes and opinion from Dr. Joey

Ancheta following an independent medical evaluation (Tr. 579-83), the issue before
the Court is whether substantial evidence supports the ALJ’s decision, even if the
evidence preponderates against the decision, not whether some evidence may support
Plaintiff’s claim. See Mitchell, 771 F.3d at 782; Winschel, 631 F.3d at 1178 (citations
omitted); Bloodsworth, 703 F.2d at 1239. Here, the ALJ relied upon substantial
evidence in correctly determining that Plaintiff maintained the ability to perform the
reduced range of light work set forth in the RFC assessment (Tr. 20-24). Accordingly,

in setting forth the hypothetical to the VE, the ALJ appropriately incorporated the
limitations set forth in that RFC assessment. As the hypothetical to the VE comprised
all of Plaintiff’s impairments and limitations, the VE’s testimony constituted
substantial evidence upon which the ALJ could rely in determining that Plaintiff
maintained the ability to perform her past relevant work as a security guard as both

actually and generally performed. See Wilson, 284 F.3d at 1227. For the foregoing
reasons, therefore, the ALJ applied the correct legal standards, and the ALJ’s decision
is supported by substantial evidence.
IV. Conclusion
After consideration, it is hereby

ORDERED:
1. The decision of the Commissioner is affirmed.
2. The Clerk is directed to enter final judgment in favor of the
Commissioner and close the case.
DONE AND ORDERED in Tampa, Florida, on this 28th day of December,
2022.

MARK A. PIZZO
UNITED STATES MAGISTRATE JUDGE

cc: Counsel of Record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10111694. Public record. Not legal advice.