# Souto v. Commissioner of Social Security

> District Court, M.D. Florida · July 12, 2018

URL: https://www.frixlaw.com/law-library/cases/10741879

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** July 12, 2018
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## How later opinions describe it (automated extraction)

- stating that the court must scrutinize the entire record to determine the reasonableness of the factual findings

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FT. MYERS DIVISION

ROSE C. SOUTO,

Plaintiff,

v. Case No: 2:17-cv-124-FtM-38CM

COMMISSIONER OF SOCIAL
SECURITY,

Defendant.

REPORT AND RECOMMENDATION1
Plaintiff Rose C. Souto seeks judicial review of the denial of her claims for
disability and disability insurance benefits (“DIB”) by the Commissioner of the Social
Security Administration (“Commissioner”). The Court has reviewed the record, the
Joint Memorandum (Doc. 20),2 and the applicable law. For the reasons discussed
herein, the Court recommends the decision of the Commissioner be affirmed.

1 A party has fourteen days from this date to file written objections to the Report and
Recommendation’s factual findings and legal conclusions. A party’s failure to file written
objections waives that party’s right to challenge on appeal any unobjected-to factual finding
or legal conclusion the district judge adopts from the Report and Recommendation. 11th
Cir. R. 3-1.
2 Disclaimer: Documents filed in CM/ECF may contain hyperlinks to other
documents or Web sites. These hyperlinks are provided only for users’ convenience. Users
are cautioned that hyperlinked documents in CM/ECF are subject to PACER fees. By
allowing hyperlinks to other Web sites, this Court does not endorse, recommend, approve, or
guarantee any third parties or the services or products they provide on their Web sites.
Likewise, the Court has no agreements with any of these third parties or their Web sites.
The Court accepts no responsibility for the availability or functionality of any hyperlink.
Thus, the fact that a hyperlink ceases to work or directs the user to some other site does not
affect the opinion of the Court.
I. Issues on Appeal3
Plaintiff raises four issues on appeal: (1) whether substantial evidence
supports the administrative law judge’s (“ALJ”) finding that Plaintiff could perform

her past relevant work as generally performed; (2) whether the ALJ properly
classified Plaintiff’s past relevant work as a warehouse worker as unskilled; (3)
whether the ALJ’s finding that Plaintiff could perform past relevant work conflicts
with her finding that Plaintiff could not work around hazards; and (4) whether the
ALJ properly considered the side effects of Plaintiff’s medications and her multiple
sclerosis (“MS”).

II. Procedural History and Summary of the ALJ’s Decision
On October 21, 2013, Plaintiff filed an application for DIB, alleging her
disability began August 20, 2007, due to partial blindness in her left eye, Sjogren’s
disease, Grave’s disease, joint pain, fatigue, headaches, and numbness in her hands
and left leg. Tr. 91–92, 214–17. Plaintiff’s DIB claim was denied initially and upon
reconsideration. Tr. 120, 136, 148. On July 15, 2014, Plaintiff requested a hearing
before an ALJ. Tr. 153. ALJ Yvette N. Diamond held a hearing on September 21,

2015, during which Plaintiff and vocational expert (“VE”) Donna Bardsley testified.
Tr. 51–90. At the hearing, Plaintiff amended her onset date to January 1, 2012.

3 Any issue not raised by Plaintiff on appeal is deemed to be waived.
, 385 F.3d 1324, 1330 (11th Cir. 2004) (“[A] legal claim or
argument that has not been briefed before the court is deemed abandoned and its merits will
not be addressed.”).
Tr. 54. On December 30, 2015, the ALJ found Plaintiff not disabled from January
1, 2012 through December 31, 2014, the date last insured. Tr. 120–30.
At step one, the ALJ found Plaintiff “last met the insured status requirements

of the Social Security Act through December 31, 2014.” Tr. 122. The ALJ
determined Plaintiff did not engage in substantial gainful activity during the period
from her alleged onset date of January 1, 2012, through the date she was last insured,
December 31, 2014 Next, the ALJ found that, through the date last insured,
Plaintiff had severe impairments of Sjogren’s syndrome, MS, optic neuritis,
degenerative disc disease, and hypertension.

The ALJ then concluded Plaintiff “did not have an impairment or combination
of impairments that met or medically equaled the severity of one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1” through the date last
insured Tr. 125. The ALJ then determined that Plaintiff had the residual
functional capacity (“RFC”) to perform medium work4 with certain limitations,
including that she “has a limited left field of vision and cannot have any exposure to
hazards.” Next, the ALJ found Plaintiff was capable of performing her past

relevant work as a caregiver or a warehouse worker. Tr. 129. As a result, the ALJ
found that Plaintiff was not under a disability at any time from the alleged onset date
through the date last insured. Tr. 130.

4 The regulations define medium work as work that “involves lifting no more than 50
pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds.” 20
C.F.R. § 404.1567(c).
Following the ALJ’s decision, Plaintiff filed a request for review by the Appeals
Council, which was denied on February 2, 2017. Tr. 1. Accordingly, the December
30, 2015 decision is the final decision of the Commissioner. Plaintiff filed an appeal

with this Court on March 1, 2017. Doc. 1. The matter is now ripe for review.
III. Standard of Review
The scope of this Court’s review is limited to determining whether the ALJ
applied the correct legal standards and whether the findings are supported by
substantial evidence. , 841 F.2d 1077, 1080 (11th Cir. 1988)
(citing , 402 U.S. 389, 390, 401 (1971)). The Commissioner’s
findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. §

405(g).5 Substantial evidence is “more than a scintilla, i.e., evidence that must do
more than create a suspicion of the existence of the fact to be established, and such
relevant evidence as a reasonable person would accept as adequate to support the
conclusion.” , 67 F.3d 1553, 1560 (11th Cir. 1995) (internal citations
omitted).
The Eleventh Circuit has restated that “[i]n determining whether substantial

evidence supports a decision, we give great deference to the ALJ’s factfindings.”
808 F.3d 818, 822 (11th Cir. 2015) (citation

5 After the ALJ issued the decision, certain Social Security rulings and regulations
were amended, such as the regulations concerning the evaluation of medical opinions and
evaluation of mental impairments. , 20 C.F.R. §§ 404.1520a, 404.1520c, 404.1527
(effective March 27, 2017). The Court will apply rules and regulations in effect at the time
of the ALJ’s decision. , 883 F.3d 1302, 1308 (11th Cir.
2018); , 488 U.S. 204, 208 (1988); 20 C.F.R. § 404.1527
(effective March 27, 2017) (“For claims filed . . . before March 27, 2017, the rules in this
section apply.”).
omitted). Where the Commissioner’s decision is supported by substantial evidence,
the district court will affirm, even if the reviewer would have reached a contrary
result as finder of fact or found that the preponderance of the evidence is against the

Commissioner’s decision. , 937 F.2d 580, 584 n.3 (11th Cir.
1991); , 932 F.2d 1356, 1358 (11th Cir. 1991);
, 979 F.2d 835, 837 (11th Cir. 1992) (stating that the court must scrutinize
the entire record to determine the reasonableness of the factual findings). The Court
reviews the Commissioner’s conclusions of law under a standard of review.
, 496 F.3d 1253, 1260 (11th Cir. 2007) (citing

, 894 F.2d 1520, 1529 (11th Cir. 1990)).
IV. Discussion

Past relevant work is work a claimant has done “within the past 15 years, that
was substantial gainful activity, and that lasted long enough for [her] to learn to do
it.” 20 C.F.R. § 404.1560(b)(1). At the fourth step, the claimant bears the burden
of demonstrating that she cannot return to her past relevant work. ,
243 F. App’x 514, 522 (11th Cir. 2007) (citing 918 F.2d 1567, 1571
(11th Cir. 1990)). She must show that she can no longer perform
her past relevant work either as she actually performed it or as it is performed in
the general economy. , 379 F. App’x 948, 953 (11th
Cir. 2010) (citing 801 F.2d 1291, 1293-94 (11th Cir.1986)). Four
factors guide the Commissioner in determining whether a claimant has met this
burden: “1) objective medical facts and clinical findings; 2) diagnoses of examining
physicians; 3) subjective evidence of pain and disability, i.e. the testimony of the
claimant and his family or friends; and 4) the claimant’s age, education and work

history.” , No. 8:08-CV-1191-T-17TEM, 2009 WL
2997187, at *2 (M.D. Fla. Sept. 18, 2009),
, 411 F. App'x 236 (11th Cir. 2011) (citing 720 F.2d
1251 (11th Cir.1983)).
The ALJ assesses the claimant’s RFC to determine whether the claimant can
perform past relevant work despite her impairments. 20 C.F.R. § 404.1520(f).

The RFC is the most that a claimant can do despite her limitations. 20 C.F.R. §
404.1545(a). To support a conclusion that the claimant is able to return to her past
relevant work, the ALJ must consider all the duties of that work and evaluate the
claimant’s ability to perform them despite her impairments. 918 F.2d at
1574 n.3. An ALJ may consider a VE’s opinion when making this determination.
20 C.F.R. § 404.1560(b)(2). The regulations provide that a VE “may offer relevant
evidence within his or her expertise or knowledge concerning the physical and mental

demands of a claimant’s past relevant work, either as the claimant actually
performed it or as generally performed in the national economy.” . “In order for
a [VE’s] testimony to constitute substantial evidence, the ALJ must pose a
hypothetical question which comprises all of the claimant’s impairments.”
284 F.3d 1219, 1227 (11th Cir. 2002) (citation omitted). “The hypothetical
need only include the claimant’s impairments, not each and every symptom of the
claimant.” , 496 F.3d at 1270 (citation and quotation marks omitted). If
any impairments were omitted, the omission is harmless if it would not have altered
the VE’s testimony. , 140 F. App’x 932, 936 (11th Cir. 2005);

721 F.2d 726, 728 (11th Cir.1983).
Plaintiff testified that she worked for Raytheon in the warehouse as a stock
room operator or shipper, delivering materials from one section to another by
wheeling a cart. Tr. 60–62. This position involved standing most of the day and
loading and unloading around 30 to 40 pounds. Tr. 62. When Plaintiff moved from
Massachusetts to Florida, she got a job providing home care for a woman who spent

the winter season in Florida. Tr. 62–63. Plaintiff provided home care for her for
five months each year for two years. Tr. 63–64. In this position, Plaintiff provided
assistance bathing, dressing, going to medical appointments, going on other outings,
and otherwise getting in and out of her wheelchair. Tr. 64–66.
The VE testified Plaintiff’s work as a caregiver was semiskilled with a specific
vocational preparation (“SVP”)6 of 3 and generally performed at the medium
exertional level under the Dictionary of Occupational Titles (“DOT”) but actually

performed by Plaintiff at the heavy exertional level. Tr. 86. She identified the
warehouse worker as unskilled with an SVP of 2 and performed at the medium
exertional level both under the DOT and as actually performed. The VE
testified that an individual with Plaintiff’s age, educational background, work

6 “The DOT lists a specific vocational preparation (SVP) time for each described
occupation. Using the skill level definitions in 20 CFR 404.1568 and 416.968, unskilled work
corresponds to an SVP of 1-2.” SSR 00–4p, 2000 WL 1898704 at *3.
experience and RFC could perform Plaintiff’s past work. at 86–87. As to the
warehouse worker, the hypothetical individual could perform the job as classified by
the DOT generally and as Plaintiff performed it. at 87. Regarding the caregiver

job, the hypothetical individual could perform it as classified but not as Plaintiff
actually performed it. Relying on the VE’s testimony, the ALJ found that
Plaintiff could perform the warehouse worker job generally and as performed and the
caregiver job as it was generally performed. Tr. 129.
i.

Plaintiff went to school in Portugal until at least the fourth grade.7 Tr. 58,
238. She came to the United States at 15 and got married at 17. Tr. 58. Plaintiff
argues the jobs of warehouse worker and caregiver require the ability to write, which
Plaintiff does not have. Doc. 20 at 12. Plaintiff also argues that both jobs have
general education (GED) levels that require greater than a fourth grade education,
with a warehouse worker requiring a fourth to sixth grade education, and a caregiver
requiring a seventh to eighth grade education. at 13.

The Commissioner responds the ALJ appropriately relied on the DOT and the
VE to determine the mental and physical demands of Plaintiff’s past relevant work
and that she was still capable of performing it. Doc. 20 at 15 (citing 20 C.F.R. §

7 The record contains conflicting information, as Plaintiff appears also to have
reported that she obtained a seventh to eighth grade education and graduated high school.
Tr. 238 Tr. 916, 922. Her testimony also is unclear as to how far she went in
school as she stated, “I just went to school in Portugal. Four years.” Tr. 58. For purposes
of judicial review, the Court addresses Plaintiff’s ability to perform her past relevant work
based on the lowest level of education in the record she reported receiving.
404.1560; SSR 82-62, 1982 WL 31386). The Commissioner argues that the ALJ
asked the VE if her testimony was consistent with the DOT and was not required to
inquire further once she got an affirmative response. The Commissioner

further argues if the ALJ had asked the VE about any conflict, the DOT indicates the
warehouse worker position requires only simple writing, which is not inconsistent
with Plaintiff’s statements. at 16 (citing Tr. 58–59, 236).
The ALJ did not specifically address Plaintiff’s ability to write in her decision.
Tr. 120–130. At the hearing, however, the ALJ questioned Plaintiff:
Q: Okay. And are you able to read and write?

A: Not write. I read a little bit, but not write because I never went
to school.

Q: Can you write a grocery list?

A: Yeah. But I mean, write, write, I don’t know how. Just very
simple.

Tr. 58. Plaintiff did not testify as to any writing involved in the warehouse worker
job. Tr. 61–62. According to the DOT, the writing required for the warehouse
worker job is printing “simple sentences containing subject, verb, and object, and
series of numbers, names, and addresses.” Dictionary of Occupational Titles (U.S.
Dep’t of Labor 4th ed. 1991) 922.687-058, 1991 WL 688132, at 2. The writing
requirement for the warehouse job as generally performed is consistent with
Plaintiff’s testimony that she could do simple writing. Tr. 58.
Similarly, the warehouse worker job requires an education consistent with
Plaintiff’s level.8 The DOT explains that its GED scale:
embraces those aspects of education (formal and informal) which are
required of the worker for satisfactory job performance. This is
education of a general nature which does not have a recognized, fairly
specific occupational objective. Ordinarily, such education is obtained
in elementary school, high school, or college. However, it may be
obtained from experience and self-study.

DOT App. C § III, 1991 WL 688702. Under the regulations, a fourth grade education
is a marginal one, meaning “ability in reasoning, arithmetic, and language skills
which are needed to do simple, unskilled types of jobs.” 20 C.F.R. 404.1564(b)(2);
, 140 F. App’x at 936. The warehouse worker job is unskilled and
therefore consistent with Plaintiff’s education level. Tr. 86, 129. Moreover, the
ALJ was entitled to rely on Plaintiff’s informal education through her job experience
of roughly thirty-six years in the position to determine if Plaintiff could perform her
past relevant work. Tr. 922. Thus, the Court recommends the ALJ did not err in
finding Plaintiff could perform the warehouse worker job as generally performed.
The writing requirement for a caretaker, however, appears to be more
involved. Under the DOT, it requires the following writing ability: “Write compound
and complex sentences, using cursive style, proper end punctuation, and employing
adjectives and adverbs.” DOT 354.377-014, 1991 WL 672933, at 2. This job also is

8 The Commissioner argues there was evidence in the record that Plaintiff had a
seventh to eighth grade education, or even a high school education, and the ALJ was
responsible for resolving conflicts in the evidence. Doc. 20 at 17 (citing Tr. 916, 922).
However, the ALJ did not state Plaintiff’s level of education or otherwise resolve the conflict,
Tr. 120–30, and the Court cannot make assumptions as to the ALJ’s decision or reweigh the
evidence where the ALJ’s findings are not apparent from the record.
, 703 F.2d 1233, 1239 (11th Cir. 1983).
semiskilled as generally performed. Tr. 86, 129. Under SSR 00-4p, “[w]hen a VE .
. . provides evidence about the requirements of a job or occupation, the adjudicator
has an affirmative responsibility to ask about any possible conflict between that VE

or VS evidence and information provided in the DOT.” SSR 00-4p, 2000 WL
1898704, at *4 (Dec. 4, 2000). If there is a conflict, the ALJ is to “obtain a reasonable
explanation for the apparent conflict.” If the ALJ asks the VE whether any
conflicts exist between the DOT and the VE’s statements, and the VE responds in the
negative, “the ALJ is not required independently to identify whether there is any
inconsistency.” , No. 2:12-cv-505-FtM-29, 2013 WL 5278271, at *6

(M.D. Fla. Aug. 23, 2013), , No. 2:12-
cv-505-FtM-29DN, 2013 WL 5278483 (M.D. Fla. Sept. 18, 2013).
Here, the VE read the record and testified her testimony was consistent with
the DOT. Tr. 85–86, 88. The ALJ also made a finding that she had considered the
mental and physical demands of both jobs and found Plaintiff could perform them.
Tr. 129. The DOT description of the duties is consistent with how Plaintiff actually
performed the caretaker job.9 However, the writing requirement appears to conflict

9 The description reads:
Cares for elderly, convalescent, or handicapped persons in patient’s home,
performing any combination of following tasks: Changes bed linens, washes
and irons patient’s laundry, and cleans patient’s quarters. Purchases,
prepares, and serves food for patient and other members of family, following
special prescribed diets. Assists patients into and out of bed, automobile, or
wheelchair, to lavatory, and up and down stairs. Assists patient to dress,
bathe, and groom self. Massages patient and applies preparations and
treatments, such as liniment or alcohol rubs and heat-lamp stimulation.
Administers prescribed oral medications under written direction of physician
or as directed by home care nurse. Accompanies ambulatory patients outside
home, serving as guide, companion, and aide. Entertains patient, reads
with Plaintiff’s abilities demonstrated in the record, and neither the ALJ nor
Plaintiff’s attorney elicited any testimony from the VE in that regard. Tr. 83–89.
Regardless, any error in finding Plaintiff could perform the caretaker job as generally

performed is harmless because Plaintiff has not demonstrated she cannot perform
the warehouse worker job as actually performed. Therefore, even if the ALJ had
erred in finding Plaintiff could not perform her past relevant work as a caretaker as
generally performed, such error is harmless because it would not have changed the
ALJ’s ultimate decision. , 808 F.3d at 822. Plaintiff was not disabled so
long as she could perform her work as actually performed. , 411 F. App’x

at 239. Thus, the Court recommends the Commissioner’s decision be affirmed as to
this issue.

Plaintiff argues that her prior job as a warehouse worker must have been a
skilled one because it earned her up to $46,000 per year. Doc. 20 at 18. Plaintiff
argues the ALJ improperly classified the position as unskilled work with an SVP of

2. at 19. Plaintiff argues the ALJ failed to sufficiently develop the record as to
the actual duties of the warehouse worker job. The Commissioner responds the

aloud, and plays cards or other games with patient. Performs variety of
miscellaneous duties as requested, such as obtaining household supplies and
running errands. May maintain records of services performed and of apparent
condition of patient. May visit several households to provide daily health care
to patients.

DOT 354.377-014, 1991 WL 672933, at 2.
ALJ may rely on the DOT to determine the requirements of past relevant work, and
in any event, Plaintiff testified as to the job’s duties. at 20. The Commissioner
argues the ALJ properly classified Plaintiff’s past relevant work, which was

consistent with both the DOT and Plaintiff’s testimony. at 21.
The ALJ relied on the VE for the classification of Plaintiff’s work. Tr. 129.
After reviewing the record and listening to Plaintiff describe her past relevant work,
the VE opined the warehouse worker job was unskilled, with an SVP of 2. Tr. 86.
Plaintiff’s testimony is consistent with the duties of a warehouse worker defined
under the DOT, including performing any combination of tasks to receive, store, and

distribute material, tools, equipment and products within establishments; reading
schedules, orders or requisition forms to move items; and conveying materials from
one area to another by hand, handtruck or electric handtruck. DOT 922.687-058,
1991 WL 688132, at 1. Plaintiff cites , No. 2:13-cv-
173-FtM-DNF, 2014 WL 4809470 (M.D. Fla. Sept. 26, 2014), but that case is
distinguishable. Doc. 20 at 19. There, the plaintiff’s past relevant work conflicted
with her RFC—she was required to sit for 8 hours in an 8 hour work day for the job

but was limited in her RFC to sitting 6 hours in an 8 hour workday. , 2014
WL 4809470, at *6. Additionally, the ALJ in that case determined the plaintiff’s
past work for an insurance company processing insurance claims over the telephone
using a computer qualified as an insurance clerk, but the DOT description involved
primarily compiling records of insurance policies. .
Unlike , Plaintiff’s description of her job duties does not conflict with
the DOT for warehouse worker, nor does it conflict with Plaintiff’s RFC. Plaintiff
suggests that the ALJ should have investigated why she made so much money if the

job only had an SVP level of 2, but she does not establish how she was unable to
perform the job as she actually performed it. Thus, the Court recommends even if
the ALJ should have conducted a more in-depth inquiry into the warehouse worker
position, it would not have changed the ALJ’s determination that Plaintiff could
perform it as she had been for many years10 prior to moving to Florida. Tr. 62–63,
922.

Plaintiff argues the ALJ found that she could not work around hazards but
inconsistently concluded she could work as a caretaker, which could involve stairs or
irons, and a warehouse worker, which could involve lifting up to 50 pounds. Doc. 20
at 22–23. Plaintiff argues if she were to have vision loss from headaches and
disorientation, it would not be safe for her to hold elderly or handicapped individuals.

at 23. Plaintiff argues the ALJ’s hypothetical to the VE was incomplete because
it did not include disorientation due to headaches. (citing Tr. 86–87). The
Commissioner responds that neither job involves exposure to hazards as the DOT

10 At the hearing, the ALJ limited the questioning of Plaintiff to her role as a
warehouse worker beginning in 2000; however, Plaintiff indicated that she had worked for
Raytheon prior to that date, and the record demonstrates she had that job for 36 years. Tr.
61, 922.
defines them, and the VE testified that hazards were not an issue with either job.
at 24.
The ALJ accounted for Plaintiff’s headaches and vision loss in her RFC by

finding Plaintiff could not work around hazards. T. 125–27. Although the ALJ
omitted the hazard limitation from her first hypothetical to the VE, she specifically
asked if hazards were an issue in either job, and the VE responded that they were
not. Tr. 86–88. Under the DOT descriptions for both warehouse worker and
caretaker, vibration, atmospheric conditions, moving mechanical parts, electric
shock, high exposed places, radiation, explosives, toxic caustic chemicals or other

environmental conditions are “Not Present – Activity or condition does not exist.”
DOT 922.687-058, 1991 WL 688132, at 4, DOT 354.377-014, 1991 WL 672933, at 4.
Plaintiff does not cite any authority or evidence to support her contention that stairs
or an iron would constitute a workplace hazard around which she was precluded from
working. Doc. 20 at 22–23. Thus, the Court recommends the ALJ’s finding
Plaintiff could perform past relevant work is consistent with Plaintiff’s RFC requiring
hazard avoidance.
11

Plaintiff argues the ALJ has a duty to develop the record to investigate the side
effects of Plaintiff’s medications. Doc. 20 at 25. She argues the record contains
evidence of the side effects Plaintiff suffers, but the ALJ failed to consider them and
instead misunderstood the “relapsing-remitting nature of the MS impairment.”
at 26. Plaintiff contends the ALJ discounted the side effects because she did not
attempt physical therapy to improve neurological functioning or functional mobility,
but no physical therapy was prescribed by any doctor. Plaintiff also argues that
some of her medications made her confused and tired, but the ALJ did not address
these side effects or investigate them further. at 27.
The Commissioner responds that the ALJ considered the side effects of
Plaintiff’s medication, including her subjective complaints of malaise, when she

assessed Plaintiff’s credibility. The Commissioner points out the ALJ elicited
testimony concerning Plaintiff’s medications, including that they caused her to feel
fatigued and confused, and the ALJ noted Plaintiff’s testimony that she could not
tolerate medications and made complaints of malaise. at 28. The ALJ
discredited this testimony based on the medical record and the lack of corroboration,

11 Plaintiff also argues in passing that the ALJ’s failure to adequately consider her
side effects negates the analysis of whether Plaintiff’s impairments meet Listing 14.10. Doc.
20 at 26. The Court need not consider an issue Plaintiff did not meaningfully develop and
therefore did not preserve for appeal. , 616 F. App’x
931, 934 n.3 (11th Cir. 2015) (“[A] party fails to adequately brief an issue when he does not
plainly and prominently raise it, for instance by devoting a discrete section of his argument
to those claims.” (internal citation and quotation marks omitted)).
namely Plaintiff’s limited treatment and wide range of regular activity. . at 28–
30.
An ALJ’s duty to develop the record includes a duty to inquire into the effect

of a claimant’s prescribed medication on her ability to work because side effects
themselves can be disabling. , 662 F.2d 731, 737 (11th Cir.
1981). The Eleventh Circuit, however, also has distinguished this duty as a
heightened or special one for unrepresented claimants:
With respect to an unrepresented claimant, the ALJ’s obligation to
develop the record becomes a special duty to “scrupulously and
conscientiously probe into, inquire of, and explore all the relevant facts,”
and to ensure with diligence that favorable and unfavorable facts are
elicited. 129 F.3d 1420, 1423 (11th Cir.1997) (quoting
662 F.2d 731, 735 (11th Cir.1981)). As a result,
where an unrepresented claimant’s hearing testimony raises a question
as to the side-effects of medications, the ALJ has the special duty to elicit
further testimony or otherwise make a finding in regard to such side-
effects. 662 F.2d at 735.
.”
760 F.2d 1186, 1191 n. 7 (distinguishing ).

., No. 07-11789, 2007 WL 3122168, at *1 (11th
Cir. Oct. 26, 2007) (emphasis added).
Plaintiff testified briefly as to the side effects she suffered from her MS
medications—that at times they cause fatigue and confusion. Tr. 66–69. Plaintiff’s
attorney did not elicit any additional testimony as to the disabling nature of her side
effects. Tr. 77–83. Thus, the Court recommends the ALJ did not err in failing to
make further inquiry into the side effects of Plaintiff’s medications.
The Court also recommends the ALJ properly considered the side effects of the
medications and Plaintiff’s pain as caused by her MS. The ALJ expressly noted the
side effects of Plaintiff’s medications in Plaintiff’s medical records, but she discounted

the effect of the medications and Plaintiff’s pain on her ability to work based on other
evidence in the record. Tr. 128. The ALJ explained:
Factors outside the objective medical evidence also affect the credibility
of claimant’s allegations (SSR 96-7p). The claimant’s earnings records
identify a consistent work history for many years preceding the alleged
onset date (Exhibit 4D). The claimant’s treatment record also provides
some support for the claimant’s allegations. The medical evidence
suggests that the claimant had difficulty tolerating various neurological
medications, limiting her ability to treat her multiple sclerosis (Exhibit
19F/11–12). However, the record shows no attempts at physical
therapy to improve neurological functioning or functional mobility.
The claimant also indicated that she had no treatment for her pain aside
from over-the-counter medications and ice packs (Exhibit 9E/2).
Moreover, the claimant denied widespread joint pain in January 2014,
suggesting that she did not experience those pains as consistently as
alleged (Exhibit 20F/81). The claimant also performed outside
activities inconsistent with disability. The claimant testified that she
visited Boston on several occasions during the period at issue, and stated
that she visited Portugal for a month in 2013. Although the claimant
indicated that she could not mop the floor, she stated in February 2014
that she could do the laundry (Exhibit 9E/2). She testified that she
continued to drive short distances and take pictures with a tablet,
suggesting less visual difficulty than she alleges. Moreover, the
claimant explained that she showered and dressed independently, and
prepared simple meals during [t]his period. I thus find the claimant’s
allegations somewhat credible.

Tr. 128. Earlier in her decision, the ALJ also noted Plaintiff’s complaints of fatigue
and thus limited her to only occasional climbing of stairs or ladders. Tr. 129. The
ALJ noted the alleged symptoms of Plaintiff’s MS—“chronic muscle pain and pressure
in her head.” Tr. 126. Because Plaintiff’s headaches could cause disorientation, in
addition to limited vision in her left eye, the ALJ excluded Plaintiff from working
around hazards. Tr. 126–27. Plaintiff does not suggest how her side effects were
more disabling than recognized by the ALJ in determining her RFC, nor does she
suggest how her MS, in the absence of any treating medications, further limited her

RFC.12 Doc. 20 at 25–26.
The Court recommends substantial evidence supports the ALJ’s finding that
Plaintiff’s symptoms, including the side effects, were not as severe as she claimed.
The Eleventh Circuit long has recognized that “credibility determinations are the
province of the ALJ.” , 405 F.3d 1208, 1212 (11th Cir. 2005) (citing
, 734 F.2d 513, 517 (11th Cir. 1984)). If the objective medical

evidence does not confirm the severity of the alleged symptoms but indicates that the
claimant’s impairments could reasonably be expected to produce some degree of pain
and other symptoms, the ALJ must evaluate the intensity and persistence of a
claimant’s alleged symptoms and their effect on the claimant’s ability to work.
20 C.F.R. § 404.1529(c)(1); , 284 F.3d at 1225–26; , 67 F.3d at 1561. The
ALJ compares the claimant’s statements with the objective medical evidence, the
claimant’s daily activities, treatment and medications received, and other factors

concerning limitations and restrictions the symptoms cause. 20 C.F.R. §
404.1529(c)(1).
“If the ALJ discredits subjective testimony, he must articulate explicit and
adequate reasons for doing so. Failure to articulate the reasons for discrediting

12 Plaintiff argues that the Copaxane injections she received to treat her MS affected
her ability to stand; however, Plaintiff acknowledges she discontinued the Copaxane
injections after only 2 months. Doc. 20 at 25.
subjective testimony requires, as a matter of law, that the testimony be accepted as
true.” , 284 F.3d at 1225 (internal citations omitted). “The question is not .
. . whether the ALJ could have reasonably credited [a claimant’s] testimony, but

whether the ALJ was clearly wrong to discredit it.” ,
421 F. App’x 935, 939 (11th Cir. 2011). “A clearly articulated credibility finding with
supporting evidence in the record will not be disturbed by a reviewing court.” ,
67 F.3d at 1562.
Although Plaintiff’s records indicate that she did not tolerate the medications
prescribed for MS, as the ALJ noted, they also demonstrate conservative treatment.

Plaintiff testified she sees a doctor, Matthew J. Baker, M.D., for her MS every four
months. Tr. 68. Her medical records demonstrate regular follow up visits for her
MS every two to three months or so. Tr. 417, 420, 475, 478, 484, 490, 755, 760, 765,
771, 777, 786. Megan Rahmlow, M.D., stated in her treatment plan for Plaintiff:
She prefers to stop copaxone for now given the injection site reactions.
I think this is reasonable. We will gather further information before
deciding on an alternative MS treatment, .

Tr. 894 (emphasis added). The record indicates Dr. Rahmlow would see Plaintiff
after MRI testing within 8 weeks.
In observing Plaintiff had not sought physical therapy, the ALJ may have been
referring to Dr. Rahmlow’s opinion and inferring that the referenced alternative
treatment was physical therapy, which could have improved neurological functioning
or functional mobility. Tr. 128. However, the Court cannot make that
determination from the ALJ’s decision. Nevertheless, aside from Plaintiff’s failure
to try physical therapy, the overall conservative nature of her treatment in light of
the side effects of her medication as well as her activities supports the ALJ’s
determination that Plaintiff’s pain was not as severe or limiting as she alleges.

The ALJ also correctly noted that Plaintiff reported malaise, or feeling badly,
sometimes, but not consistently. Tr. 476, 752, 757, 772, 779 (reporting
malaise) Tr. 418, 436, 442, 447, 454, 482, 488, 493, 499, 912 (reporting no
malaise). Moreover, the records did not indicate that these feelings were related to
Plaintiff’s side effects or her MS, or the extent of her ability to work despite her
symptoms. Based on the record, it was reasonable for the ALJ to conclude that the

side effects of Plaintiff’s MS medications as well as the MS itself were not disabling.
Although there is some evidence in the record that suggests further limitations than
the ALJ found, the question for the Court is whether substantial evidence supports
the ALJ’s findings, not whether the record could support a different one.
, 783 F. 3d 847, 850 (11th Cir. 2015); , 937
F.2d at 584 n.3; , 932 F.2d at 1358.
III. Conclusion

The Court recommends that the ALJ applied the proper standards, and
substantial evidence supports her decision that Plaintiff was not disabled through
the date last insured.
ACCORDINGLY, it is respectfully
RECOMMENDED:
1. The decision of the Commissioner be AFFIRMED.
2. The Clerk of Court be directed to enter judgment pursuant to sentence
four of 42 U.S.C. § 405(g) in favor of the Commissioner and close the file.
DONE and ENTERED in Fort Myers, Florida on this 12th day of July, 2018.

CAROL oe
United States Magistrate Judge

Copies:
Counsel of record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10741879. Public record. Not legal advice.