# Fleck v. Social Security Administration, Commissioner

> District Court, N.D. Alabama · May 29, 2020

URL: https://www.frixlaw.com/law-library/cases/9989486

## Case

- **Court:** District Court, N.D. Alabama
- **Decided:** May 29, 2020
- **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/9989486

## How later opinions describe it (automated extraction)

- noting that the ALJ went beyond the required statements that show consideration of combination of impairments by discussing specific evidence
- noting evidence could not establish the existence of a medical impairment because source was “not a physician.”

## Opinion text

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION

KIMBERLY D. FLECK, }
}
Plaintiff, }
}
v. } Case No.: 5:19-cv-00878-ACA
}
ANDREW SAUL, }
COMMISSIONER OF SOCIAL }
SECURITY ADMINISTRATION, }
}
Defendant. }

MEMORANDUM OPINION

Plaintiff Kimberly Fleck appeals the decision of the Commissioner of Social
Security terminating her disability benefits. Based on the court’s review of the
administrative record and the parties’ briefs, the court AFFIRMS the Commissioner’s
decision.
I. PROCEDURAL HISTORY
In 2004, Plaintiff Kimberly Fleck (“Ms. Fleck”) applied for a period of
disability and disability insurance benefits. (R. 204-07). An Administrative Law
Judge (“ALJ”) issued a fully favorable decision in September 2006, finding Ms.
Fleck disabled beginning on November 1, 2003 due to breast cancer. (Id. at 86-92).
The ALJ awarded Ms. Fleck disability benefits. (Id.).

In 2010, the Social Security Administration (“SSA”) conducted a continuing
disability review to determine whether Ms. Fleck had experienced medical
improvement. (R. 102-06). After review, the Commissioner found that the “medical

evidence shows that [Ms. Fleck’s] condition has improved since [her] last favorable
decision.” (Id.). The Commissioner determined that Ms. Fleck’s disability ended
on December 1, 2010. (R. 102-06). In making that determination, the Commissioner
considered impairments Ms. Fleck suffered from that were unrelated to breast

cancer, and diagnosed subsequent to her initial determination of benefits.1 (Id.).
Ms. Fleck requested a hearing before an ALJ, who in 2014, determined that
Ms. Fleck’s disability had, in fact, ceased on December 1, 2010 because Ms. Fleck

remained “cancer free.” (Id. at 12-35). Although the ALJ noted that Ms. Fleck had
several additional impairments as of December 1, 2010,2 the ALJ concluded that Ms.
Fleck was not disabled. (Id.). Ms. Fleck then sought review by the Appeals Council,
which denied Ms. Fleck’s request for review. (R. 1-6). Thereafter, Ms. Fleck

1 In fact, the review incorrectly stated that Ms. Fleck was found disabled in 2003 due to
“lymphedema in the right arm, right shoulder pain, finger joint [sic] pain, autoimmune disorder,
scleroderma and lupus.” (R. at 103).
2 The ALJ found that Ms. Fleck had the following medically determinable impairments:
degenerative disc disease of the cervical spine, systemic lupus erythematosus (SLE), dry eye,
gastroesophageal reflux disease (GERD), hypothyroidism, hyperlipoproteinemia, obstructive
sleep apnea (OSA), and anxiety. (R. 17).
appealed to this court, where she raised the issue that the ALJ failed to properly
account for malaise. (R. 1862-75). This court reversed and remanded the case to

the Commissioner to determine whether Ms. Fleck’s complaints of malaise qualified
her as disabled under Listing 14.02. (Id.; see Fleck v. Comm’r of Soc. Sec., No. 5:15-
cv-1293-MHH, 2016 WL 8671769, at *4 (N.D. Ala. Sept. 30, 2016) (Haikala, J.)).

On remand, the Appeals Council vacated the Commissioner’s final decision
terminating Ms. Fleck’s benefits, and remanded the case to an ALJ for further
proceedings consistent with the district court’s order. (Id. at 1876-80). Following a
hearing, the ALJ issued a decision on October 26, 2017, finding that Ms. Fleck was

not disabled as of December 1, 2010. (Id. at 1790-1817). In April 2019, the Appeals
Council denied Ms. Fleck’s request for review, making the ALJ’s October 26, 2017
decision the final decision of the Commissioner. (R. 1783-89). The decision is now

ripe for the court’s judicial review. See 42 U.S.C. § 405(g).

II. STANDARD OF REVIEW
The court’s role in reviewing claims brought under the Social Security Act is
a narrow one. The court “must determine whether the Commissioner’s decision is
supported by substantial evidence and based on proper legal standards.” Winschel

v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (quotation marks and
citation omitted). “Under the substantial evidence standard, this court will affirm
the ALJ’s decision if there is ‘such relevant evidence as a reasonable person would
accept as adequate to support a conclusion.’” Henry v. Comm’r of Soc. Sec., 802
F.3d 1264, 1267 (11th Cir. 2015) (quoting Winschel, 631 F.3d at 1178). The court

may not “decide the facts anew, reweigh the evidence,” or substitute its judgment
for that of the ALJ. Winschel, 631 F.3d at 1178 (quotation marks and citation
omitted). The court must affirm “[e]ven if the evidence preponderates against the

Commissioner’s findings.” Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158-
59 (11th Cir. 2004) (quotation marks and citation omitted).
Despite the deferential standard for review of claims, the court must
“scrutinize the record as a whole to determine if the decision reached is reasonable

and supported by substantial evidence.” Henry, 802 F.3d at 1267 (quoting
MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986)). The court must
reverse the Commissioner’s decision if the ALJ does not apply the correct legal

standards. Cornelius v. Sullivan, 936 F.2d 1143, 1145-46 (11th Cir. 1991).
III. THE ALJ’S OCTOBER 26, 2017 DECISION
To determine whether a claimant continues to be disabled, an ALJ follows an
eight-step sequential evaluation process. The ALJ considers:
(1) whether the claimant is engaging in substantial gainful activity; (2)
if not, whether the claimant has an impairment or combination of
impairments that meet or equal a listed impairment; (3) if not, whether
there has been medical improvement; (4) if so, whether the
improvement is related to the claimant’s ability to work; (5) if there is
no medical improvement or if medical improvement is not related to
the claimant’s ability to work, whether an exception to medical
improvement applies; (6) if there is medical improvement related to the
claimant’s ability to work or if an exception applies, whether the
claimant has a severe impairment; (7) if so, whether the claimant can
perform his past relevant work; and (8) if not, whether the claimant can
perform other work.

Klaes v. Comm’r Soc. Sec., 499 F. App’x 895, 896 (11th Cir. 2012) (citing 20 C.F.R.
§ 404.1594(f)(1)-(8)).
At step one, the ALJ determined that Ms. Fleck had not engaged in substantial
gainful activity. (R. at 1795). At step two, the ALJ found that since December 1,
2010, Ms. Fleck suffered from the following medically determinable impairments:
degenerative disc disease of the cervical spine, degenerative joint disease, and
systemic lupus erythematosus. (Id.). The ALJ concluded that these impairments did
not meet or medically equal the severity of any listed impairment in 20 C.F.R. Part

404, Subpart P, Appendix 1. (Id. at 1796).
At step three, the ALJ determined that Ms. Fleck experienced medical
improvement as of December 1, 2010 because she is cancer-free. (R. at 1796). At

step four, the ALJ found that Ms. Fleck’s medical improvement related to her ability
to work. (Id. at 1797). Because the ALJ found that Ms. Fleck’s medical
improvement is related to her ability to work, the ALJ skipped step five and found
at step six that Ms. Fleck continued to have a severe impairment or combination of

impairments. (Id.). Specifically, the ALJ concluded that Ms. Fleck suffers from the
following severe impairments: degenerative disc disease of the cervical spine;
degenerative joint disease with a history of rotator cuff surgery; and systematic lupus
erythematosus. (Id.). The ALJ also concluded that Ms. Fleck suffers from the
following non-severe impairments: dry eye, gastroesophageal reflux disease,

hypothyroidism, hyperlipoproteinemia, obstructive sleep apnea, and anxiety. (Id.).
Based on these impairments, the ALJ found that Ms. Fleck has the residual
functional capacity to perform light work with a number of postural and

environmental limitations. (Id. at 1801).
At step seven, the ALJ determined that Ms. Fleck has no past relevant work.
(Id. at 1805). At step eight, the ALJ found that Ms. Fleck can perform a significant
number of jobs in the national economy, including cashier, furniture rental clerk, and

information clerk. (R. at 1805-06). Accordingly, the ALJ determined that Ms.
Fleck’s disability ended as of December 1, 2010, and that Ms. Fleck had not become
disabled again since that date. (Id. at 1806).

IV. DISCUSSION

On appeal, Ms. Fleck presents three arguments: that the ALJ (1) failed to
consider the combination of Ms. Fleck’s impairments; (2) improperly discounted
both Ms. Fleck’s subjective testimony and credibility; and, (3) improperly relied on
testimony that a vocational expert gave in response to a hypothetical question that

did not include all her limitations. (Doc. 13 at 7-9, 11, 12, 16, 19, 22-24, 27). The
court addresses each issue in turn.
1. Combination of Impairments
Ms. Fleck argues that the ALJ failed to evaluate Ms. Fleck as a “whole person”

in assessing her impairment of lupus. (Doc. 13 at 7 (citing Davis v. Shalala, 985
F.2d 528, 534 (11th Cir. 1993)). Ms. Fleck argues that “lupus affects many different
body systems sometimes at once but also at different times for different body

systems.” (Doc. 13 at 6). Ms. Fleck contends that the ALJ did not “acknowledge
the body system causing the symptoms suffered by [Ms. Fleck],” and therefore,
contends that the ALJ “violated the rule of viewing the body as a whole” as set forth
in Davis. (Id. at 7). The court disagrees.

Contrary to Ms. Fleck’s argument, the ALJ properly evaluated Ms. Fleck as a
“whole person” in assessing Ms. Fleck’s combination of impairments. An ALJ has
a duty to make “specific and well-articulated findings as to the effect of the

combination of impairments when determining whether an individual is disabled.”
Davis, 985 F.2d at 534 (citing Walker v. Bowen, 826 F.2d 996, 1001 (11th
Cir.1987)); see also Jones v. Bowen, 810 F.2d 1001, 1006 (11th Cir.1986). Notably,
an ALJ must evaluate the “whole person,” rather than “evaluate claimants as persons

with mere hypothetical and isolated illnesses.” Id.
Upon review, the ALJ stated that Ms. Fleck “has not had an impairment or
combination of impairments that met or medically equal any listing in 20 C.F.R. Pt.

404, Subpt. P, App’x 1.” (R. 1796). The ALJ also stated that she assessed Ms.
Fleck’s residual functional capacity (“RFC”) “based on all the evidence with
consideration of the limitations and restrictions imposed by the combined effects of

all the claimant’s medically determinable impairments.” (R. 1801). These
statements, coupled with the ALJ’s finding that she considered “all symptoms” when
determining Ms. Fleck’s RFC, sufficiently evidence that the ALJ considered the

combined effect of Ms. Fleck’s impairments, and thus, properly evaluated Ms. Fleck
as a “whole person.” (Id.; see Jones v. Dep’t of Health & Human Servs., 941 F.2d
1529, 1533 (11th Cir. 1991)).
Moreover, Ms. Fleck’s argument that the ALJ failed to “acknowledge the

body system causing the symptoms suffered” is inaccurate. (Doc. 20 at 7). As a
factual matter, the ALJ discussed many of the symptoms, organs, and body systems
that Ms. Fleck asserted were overlooked. See 20 C.F.R. Pt. 404, Subpt. P, App’x 1,

§ 14.00(D). See also Tuggerson-Brown v. Comm’r of Soc. Sec., 572 F. App’x 949,
952 (11th Cir. 2014) (noting that the ALJ went beyond the required statements that
show consideration of combination of impairments by discussing specific evidence).
As to Ms. Fleck’s respiratory system, the ALJ noted that Ms. Fleck reported

trouble breathing and tightness in her chest. (R. 1800). Laboratory findings,
however, were “normal.” (Id.). Records from September 2012 indicated that Ms.
Fleck had no respiratory distress, and was “stable.” (Id. at 1801). As to Ms. Fleck’s

cardiovascular system, the ALJ discussed records from Dr. Jampala, noting that Ms.
Fleck’s recent heart and pulmonary examinations were normal, along with records
where she reported no chest pain or palpitations. (Id. at 1800).

While Ms. Fleck alleged a neuropathy disorder, the ALJ found that nerve
conduction/electromyography testing was normal, and there simply was “no
evidence of record to support” Ms. Fleck’s complaints. (R. 1797). The ALJ

extensively discussed allegations of mental impairments. Notably, the ALJ
considered the severity of Ms. Fleck’s mental impairments, including whether
“paragraph B” and “paragraph C” criteria were satisfied; the record did not support
a finding that Plaintiff satisfied the criteria. (Id. at 1797-99). The ALJ also discussed

mood, skin, and immune system disorders (inflammatory arthritis). (Id. at 1800).
For example, ALJ noted that Dr. Jampala initially reported active inflammatory
arthritis, yet after her medications were adjusted, there was no suggestion that Ms.

Fleck’s impairments were significantly limiting her functioning. (Id.).
Ms. Fleck generally discusses medical records indicating that Ms. Fleck
suffered from fatigue and malaise, presumably continuing the argument that the ALJ
did not consider the entirety of Ms. Fleck’s symptoms. (Doc. 13 at 25-27). The

court notes that the district court previously remanded the case for further
consideration of Ms. Fleck’s impairment of malaise, see Fleck, No. 5:15-cv-1293-
MHH, 2016 WL 8671769, at *4, but Ms. Fleck does not raise the issue presently.

See Access Now, Inc. v. Sw. Airlines Co., 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.”); accord Singh v. U.S. Atty. Gen.,

561 F.3d 1275, 1278 (11th Cir. 2009) (quotation marks omitted) (“[A]n appellant’s
brief must include an argument containing appellant’s contentions and the reasons
for them, with citations to the authorities and parts of the record on which the

appellant relies.”).3 Thus, the record demonstrates that the ALJ properly considered
the entirety of Ms. Fleck’s symptoms, in light of the reasonable, objective medical
evidence.
2. Subjective Testimony and Credibility

Ms. Fleck contends that the ALJ erred in applying the Eleventh Circuit’s pain
standard because her testimony about the numerous instances of pain she suffers is
consistent with and supported by objective medical evidence. (Doc. 13 at 7-9, 11,

12, 16, 19, 22-24). Under Eleventh Circuit precedent, a claimant attempting to
establish disability through testimony of pain or other subjective symptoms must
show evidence of an underlying medical condition and either (1) “objective medical
evidence that confirms the severity of the alleged pain arising from that condition”

3 Even assuming, arguendo, that Ms. Fleck raised the issue pertaining to malaise, the court
finds the ALJ properly considered the entirety of lupus symptoms. In the 2016 opinion, District
Judge Madeline Hughes Haikala found that court could not determine whether the ALJ’s decision
was supported by substantial evidence because the ALJ failed to “account for certain diagnoses
and reported symptoms that support Ms. Fleck’s arguments concerning her impairment of lupus.”
(R. 1865.) Here, no such error is present. Because the ALJ considered the symptoms, organs, and
body systems relating to Ms. Fleck’s impairment of lupus, substantial evidence supports the ALJ’s
decision.
or (2) “that the objectively determined medical condition is of such a severity that it
can be reasonably expected to give rise to the alleged pain.” Dyer v. Barnhart, 395

F.3d 1206, 1210 (11th Cir. 2005) (quotation marks omitted). The Commissioner
acknowledges that Ms. Fleck established impairments that could reasonably be
expected to produce her alleged symptoms. (Doc. 17 at 16). Thus, the only question

before the court is whether substantial evidence supports the ALJ’s determination
that Ms. Fleck’s “statements concerning the intensity, persistence and limiting
effects of [her] symptoms are not entirely consistent with the medical evidence and
other evidence in the record.” (R. at 14-15).

The ALJ notes that Ms. Fleck alleges she cannot work due to chronic,
debilitating pain, fatigue, and dysfunction with dizziness and headaches. (R. 1802).
The ALJ highlighted, however, that in 2016, Dr. Elisa Haley of Whiteside Family

Medicine encouraged Ms. Fleck to work, specifically urging that she “attempt sitting
jobs, such as a call center . . .” (Id. at 1803). Notably, Dr. Haley referenced Dr.
Jampala’s treatment notes from 2014, indicating that Ms. Fleck “appeared overall
stable.” (Id.). The ALJ also considered a letter prepared by Dr. Haley in 2011,

noting that Ms. Fleck was doing well on her medications. (Id.). The ALJ noted that
Ms. Fleck stopped medications for lupus in April 2012, and in June 2017, Dr.
Jampala found “no active lupus.”4 (Id. at 1801).

Ms. Fleck testified that she is not able to use her hands by bending her fingers
for up to 12 hours a day. (Doc. 13 at 8; R. 1835). The ALJ, however, considered
records from Dr. Myers at Vanderbilt University Medical Center Rheumatology

Clinic that found Ms. Fleck’s muscle strength was 5/5 in all extremities, and that she
had full fist closure. (R. 1800). Rheumatology records from 2012 also reported no
swelling in her shoulders, elbows, wrists, or fingers. (Id. at 1801). Similarly, Ms.
Fleck takes issue with the ALJ’s findings regarding Ms. Fleck’s shoulder and arm

complaints. (Doc. 13 at 10-11). However, the ALJ’s analysis considered records
from Dr. Jampala showing that Ms. Fleck’s musculoskeletal examination showed no
swelling, no loss of motion, and normal motor function. (R. 1796).

Ms. Fleck further testified that she must stay on a couch for eight hours a day,
suffers from diarrhea five days a week, gets dizzy eight times a day, and has a
headache 12 to 14 hours a day every day. (Id. at 1802). In direct contrast to Ms.
Fleck’s complaints, the ALJ listed the wide range of daily activities Ms. Fleck

4 Ms. Fleck appears to fault the ALJ for considering Dr. Jampala’s office notes from 2016
and 2017, as opposed to the records closer to the date of termination of benefits in December 2010.
(Doc. 13 at 6). Records from 2016 and 2017, however, are certainly relevant in determining that
Ms. Fleck was not disabled as of September 2017. See Solomon v. Comm’r, Soc. Sec. Admin., 532
F. App’x 837, 838 (11th Cir. 2013) (to terminate benefits, the Commissioner must “evaluate the
medical evidence upon which [the claimant] was originally found to be disabled,” but also may
focus on current evidence of disability).
engaged in. (Id. at 1804). A consultative physical examination performed by Dr.
Marlin Gill in 2010 showed that Ms. Fleck engaged light house cleaning, laundry,

cooking, and washing dishes. (Id.). She drove and went to the grocery store, and
also reported that she rode her bicycle 5 miles daily for exercise. (Id.). While her
shoulder was tender, she could raise it in forward and backward directions to 100

degrees. (Id.). She had a full range of motion in the joints, and was neurovascularly
intact. (Id.). Moreover, Dr. Gill provided she could sit, stand, and walk with no
specific limitations. (Id.).
The ALJ properly found that Ms. Fleck’s statements concerning the intensity,

persistence, and limiting effects of her symptoms were inconsistent with the medical
evidence and other evidence in the record. (R. 1802). In making that determination,
the ALJ reviewed and summarized all of the medical evidence that had been

submitted, none of which confirmed Ms. Fleck’s level of alleged pain. (Id.). In
making the credibility determination, the ALJ’s extensive discussion of the medical
evidence was sufficient to enable the court “to conclude that [the ALJ] considered
[the claimant’s] medical condition as a whole.” Dyer v. Barnhart, 395 F.3d 1206,

1211 (11th Cir. 2005). Given that credibility determination, substantial evidence
supports the ALJ’s conclusion that Ms. Fleck’s subjective testimony did not satisfy
the “pain standard.” Accordingly, Ms. Fleck’s subjective descriptions of pain and

other symptoms, absent objective medical evidence, is not enough to establish
disability. See 42 U.S.C. Section 423(d)(5)(A); see also Social Security Ruling
(SSR) 16-3p, 2016 WL 1119029, at *2.

Contrary to Ms. Fleck’s assertion, the ALJ properly considered the statements
of Ms. Fleck’s daughter, Candice Rea. (Doc. 13 at 24; R. 118). Ms. Rea testified
that Ms. Fleck was easily fatigued, lacked energy to do daily tasks, was unable to

handle stress, and could not drive. (R. 118). While the ALJ may consider evidence
from sources “other” than acceptable medical sources to show the severity of a
claimant’s impairments, Ms. Rea’s statements were not due any special significance
or consideration. See 20 C.F.R. §§ 404.1502, 404.1513(a); see also Szilvasi v.

Comm’r of Soc. Sec., 555 F. App’x 898, 901 (11th Cir. 2014) (noting evidence could
not establish the existence of a medical impairment because source was “not a
physician.”). The ALJ is not generally required to articulate specific reasons for

discounting opinions from other sources. See 20 C.F.R. § 404.1527(f)(2).
Additionally, Ms. Fleck cites Tieniber v. Heckler for the proposition that the
ALJ was required to determine whether Ms. Rea’s statements were credible. (Doc.
13 at 24 (citing Tieniber, 720 F.2d 1251, 1255 (11th Cir. 1983)). The Commissioner

correctly points out that Ms. Rea’s statements are distinguishable from the testimony
in Tieniber. (Doc. 17 at 18). Here, unlike in Tieniber, testimony from Ms. Rea and
Ms. Fleck were not the only pieces of evidence produced from the disabling period.

See Tieniber, 720 F.2d at 1254. The ALJ considered other evidence, including the
third-party function report of Ms. Fleck’s father-in-law, Ms. Fleck’s own testimony,
and medical records from Drs. Kumar, Fambrough, Beck, Jampala, Myers, and

Haley. (R. 1797-1805). Because other evidence supports the ALJ’s determination,
the ALJ’s failure to make any credibility determination with respect to third-party
testimony was not reversible error. See Taylor v. Comm’r of Soc. Sec., 213 F. App’x

778, 779-80 (11th Cir. 2006). Thus, the ALJ did not err by assigning specific weight
to Ms. Rea’s testimony.
3. Vocational Expert Hypothetical
Ms. Fleck appears to argue that the ALJ improperly relied on testimony that

a vocational expert gave in response to a hypothetical question that did not include
all her limitations associated with her dry eye condition, particularly the need to
apply warm compresses during the workday. (Doc. 13 at 14-15; 27-28). The court

disagrees.
“When the ALJ uses a vocational expert, the ALJ will pose hypothetical
question(s) to the vocational expert to establish whether someone with the
limitations that the ALJ has previously determined that the claimant has will be able

to secure employment in the national economy.” Phillips, 357 F.3d at 1240. “In
order for a [vocational expert’s] testimony to constitute substantial evidence, the
ALJ must pose a hypothetical question which comprises all of the claimant’s

impairments.” Jones v. Apfel, 190 F.3d 1224, 1229 (11th Cir. 1999). But an ALJ is
not required to include findings in a hypothetical question that the ALJ properly
rejects as unsupported. Crawford, 363 F.3d at 1161. When questioning the

vocational expert during the administrative hearing, the ALJ posed the following
hypothetical:
Let's assume we have a hypothetical individual with claimant’s
education, training and work expert. He will be Mr. Alpha. He would
be limited to a full range of light work as that term is defined under the
regulations. Limited to frequent postural maneuvers, except only
occasional crawling, no climbing of ropes, ladders or scaffolds,
occasional overhead reaching with the right upper extremity, would
need to avoid concentrated cold temperature extremes or extreme
vibration, avoid more than occasional exposure to direct sunlight and
avoid dangerous moving unguarded machinery or unprotected heights.

. . .

Are there any jobs in the national economy that a person with those
limitations could perform?

(R. 1854). In response, the vocational expert testified that the hypothetical person
could perform counter clerk, cashier, and furniture rental clerk jobs. (Id.).
The ALJ asked the vocational expert a second hypothetical:
Let's assume that we have a second hypothetical individual with the
claimant’s education, training and work experience, who will be Mr.
Beta. He would have the same limitations as Mr. Alpha except that he
must be afforded the option to sit or stand during the workday one or
two minutes every hour or so just to change position. Are there any
jobs in the national economy that a person with those limitations could
perform?
(R. 1855). The vocational expert testified that the cashier and rental clerk jobs would
remain, but would reduce the numbers of jobs available. (Id.). The vocational expert

added that the hypothetical person could perform work as an information clerk. (Id.).
In her decision, the ALJ adopted the vocational expert’s testimony with
respect to the first hypothetical question and concluded that based on Ms. Fleck’s

RFC, jobs exist in the national economy that she can perform. (R. 1801). Contrary
to Ms. Fleck’s assertion, the ALJ’s hypothetical to the vocational expert accounted
for limitations on Ms. Fleck’s ability to work due to her dry eye condition.
Specifically, the ALJ found, in relevant part:

Ms. Fleck had the “residual functional capacity to perform light work
as defined in 20 CFR 404.1567(b) except . . . she must be afforded the
option to sit or stand during the workday one or two minutes every hour
or so just to change position [and] . . . must avoid more than occasional
exposure to direct sunlight.

(R. 1801). The option to sit or stand provides Ms. Fleck an opportunity to place
warm compresses on her eyes as directed by Dr. Estopinal, while the avoidance of
sunlight is compatible with Dr. Estopinal’s recommendation to wear sunglasses. (R.
1700-07, 1728).
Moreover, with respect to Ms. Fleck’s allegation that the nature of dry eye
impairment was more severe than the ALJ found, the ALJ previously considered the
relevant medical evidence, and determined the dry eye to be a non-severe
impairment.5 (R. 1797). Ms. Fleck testified at the 2017 hearing that she had to apply
warm compresses four to six times per day for twenty minutes each. Records from

Dr. Estopinal, however, show that she recommended warm compresses for “3-5
minutes,” along with the use prescription lenses to correct vision problems. (R.
1728; R. 1797). Thus, the ALJ properly determined that Ms. Fleck’s testimony was

not consistent with the record evidence. Therefore, the ALJ was not required to
include findings in the hypothetical that the ALJ had rejected as unsupported. See
Crawford, 363 F.3d at 1161.

5 To the extent Ms. Fleck takes issue with the ALJ’s finding of Ms. Fleck’s dry eye as a non-
severe impairment, (see doc. 13 at 12-15), the ALJ could not have committed error at this step of
the sequential evaluation because the ALJ found Ms. Fleck had severe impairments and continued
to the subsequent steps of the sequential evaluation. (R. 1797). See Council v. Barnhart, 127 F.
App’x 473, No. 04-13128, at *4 (11th Cir. Dec. 2004) (stating that “the ALJ could not have
committed any error at step two because he found that [the claimant] had a severe impairment or
combination of impairments and moved on to the next step in the evaluation, which is all that is
required at step two.”).
CONCLUSION
For the reasons explained above, the court concludes that the Commissioner’s
decision is supported by substantial evidence, and the Commissioner applied proper
legal standards in reaching the determination. Therefore, the Court AFFIRMS the
Commissioner’s final decision. The Court will enter a separate order consistent with
this memorandum opinion.
DONE and ORDERED this May 29, 2020.
UNITED STATES DISTRICT JUDGE

19

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9989486. Public record. Not legal advice.