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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

BARBARA POUNCY,

Plaintiff, 

v. Case No. 5:10cv184/MCR/CJK

MICHAEL J. ASTRUE,

Commissioner of Social Security,

Defendant.

REPORT AND RECOMMENDATION

This case has been referred to the undersigned magistrate judge pursuant to the

authority of 28 U.S.C. § 636(b) and Northern District of Florida Local Rules 72.1(A),

72.2(D), and 72.3, relating to review of administrative determinations under the

Social Security Act (“Act”) and related statutes, 42 U.S.C. § 401, et seq. The case is

now before the court pursuant to 42 U.S.C. § 405(g), for review of a final

determination of the Commissioner of Social Security (“Commissioner”) denying

plaintiff’s application for supplemental security income (“SSI”) under Title XVI of

the Act, 42 U.S.C. §§ 1381-83.

Upon review of the record before this court, the undersigned concludes that the

findings of fact and determinations of the Commissioner are supported by substantial

evidence. The decision of the Commissioner therefore should be affirmed.

PROCEDURAL HISTORY

On November 15, 2004, plaintiff, Barbara Jean Pouncy, protectively filed an

application for SSI benefits, alleging disability beginning November 13, 2004.

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Plaintiff’s applications were denied initially and on reconsideration. Following a

hearing, the administrative law judge (“ALJ”) issued a decision in which he found

plaintiff “not disabled” at anytime since November 13, 2004. On May 7, 2010, the

Appeals Council denied plaintiff’s request for review. T. 5-7. The ALJ’s decision

thus stands as the final decision of the Commissioner and is now subject to review in

this court pursuant to section 1383(c) of the Act. Plaintiff raises three issues:

1) The Commissioner’s decision should be reversed, because the ALJ improperly

rejected Ms. Pouncy’s testimony concerning the effects and resulting

limitations imposed by the combination of her medically determinable

impairments.

2) The Commissioner’s decision should be reversed because the ALJ failed to

properly evaluate the effects and resulting limitations caused by the

combination of Ms. Pouncy’s many severe impairments as required by

Eleventh Circuit law.

3) The Commissioner’s decision should be reversed because the ALJ failed to

pose a complete hypothetical question to the vocational expert.

FINDINGS OF THE ALJ 

In his written decision the ALJ made several findings relative to the issues

raised in this appeal:

1) Plaintiff has not engaged in substantial gainful activity since November 15,

2004, the date of her application.

2) Plaintiff has the following severe impairments: hypertension; back pain;

history of right leg pain; history of asthma; history of schizoaffective disorder; posttraumatic stress disorder; major depressive disorder; and antisocial personality

disorder.

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3) Plaintiff does not have an impairment or combination of impairments that

meets or medically equals one of the listed impairments in 20 C.F.R. Part 404,

Subpart P, Appendix 1 (20 C.F.R. §§ 416.920(d), 416.925 and 416.926).

4) Plaintiff has the residual functional capacity to sit/stand/walk up to 6 hours,

each, in an 8-hour workday; lift 20 pounds occasionally and ten pounds frequently;

and no manipulative limits. She cannot climb ladders, ropes, or scaffolds. She

cannot work at unprotected heights or around dangerous machinery. Due to her

emotional problems, she is limited to unskilled, entry-level work.

5) Plaintiff is not precluded from performing her past relevant work as a fast

food worker and presser, based upon her residual functional capacity.

6) Considering the plaintiff’s age, education, work experience, and residual

functional capacity, there are jobs that exist in significant numbers in the national

economy that she can perform.

Accordingly, the ALJ found plaintiff has not been under a disability, as defined

by the Act, since the date she filed her application. T.16-26.

STANDARD OF REVIEW

“Review of the Commissioner’s final decision is limited to determining

whether the decision is supported by substantial evidence from the record and was a

result of the application of proper legal standards.” Olds v. Astrue, No.

5:09cv319/RS/EMT, 2011 WL 691595, at *1 (N.D. Fla. Jan. 19, 2011); see also

Carnes v. Sullivan, 936 F.2d 1215, 1218 (11th Cir. 1991) (“[T]his Court may reverse

the decision of the [Commissioner] only when convinced that it is not supported by

substantial evidence or that proper legal standards were not applied.”). Substantial

evidence is “‘such relevant evidence as a reasonable person would accept as adequate

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to support a conclusion.’” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting

Consolidated Edison Co. v. NLRB, 305 U.S. 197 (1938)). The court “may not decide

the facts anew, reweigh the evidence, or substitute [its] judgment for that of the

Secretary[.]” Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990) (quoting

Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983)).

The Social Security Act defines a disability as an “inability to engage in any

substantial gainful activity by reason of any medically determinable physical or

mental impairment which can be expected to result in death or which has lasted or can

be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §

423(d)(1)(A). To qualify as a disability, the physical or mental impairment must be

so severe that the plaintiff is not only unable to do her previous work, “but cannot,

considering [her] age, education, and work experience, engage in any other kind of

substantial gainful work which exists in the national economy.” Id. § 423(d)(1)(A).

Pursuant to 20 C.F.R. § 404.1520(a)-(g), the Commissioner analyzes a

disability claim in five steps:

1. If the claimant is performing substantial gainful activity, she is not disabled.

2. If the claimant is not performing substantial gainful activity, her impairments

must be severe before she can be found disabled.

3. If the claimant is not performing substantial gainful activity and she has

severe impairments that have lasted or are expected to last for a continuous period of

at least twelve months, and if her impairments meet or medically equal the criteria of

any impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, the claimant is

presumed disabled without further inquiry.

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4. If the claimant’s impairments do not prevent her fromdoing her pastrelevant

work, she is not disabled.

5. Even if the claimant’s impairments prevent her from performing her past

relevant work, if other work exists in significant numbers in the national economy

that accommodates her residual functional capacity and vocational factors, she is not

disabled.

Claimant bears the burden of establishing a severe impairment that keeps her

from performing her past work. See 20 C.F.R. § 404.1512. “If the claimant

establishes such an impairment, the burden shifts to the Commissioner at step five to

show the existence of other jobs in the national economy which, given the claimant’s

impairments, the claimant can perform.” Olds, 2011 WL 691595, at *2. “If the

Commissioner carries this burden, the claimant must then prove [she] cannot perform

the work suggested by the Commissioner.” Id.

FACTUAL BACKGROUND AND MEDICAL HISTORY1

Plaintiff alleged she became disabled on November 13, 2004, at age 43. She

had a ninth-grade special education, and past work as a housekeeper, fast food cook,

and laundry worker. T. 156-57, 168, 360. In disability reports, plaintiff alleged an

inability to work due to emotional problems, leg and back pain, chest pain due to high

blood pressure and asthma, and sickle cell anemia. T. 149, 343-46. Plaintiff had

been incarcerated for the 14 months immediately before the alleged onset of

disability. T. 16, 360. 

Although intended to be thorough, and to provide an overview of plaintiff’s history of 1

care and treatment, this synopsis of medical evidence will be supplemented as called for in the

Analysis section.

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Because plaintiff forfeited her previously awarded SSI benefits as a result of

her incarceration, the most pertinent medical findings are those reflecting her

condition at, or around, the time of her release from custody, November 13, 2004,

which coincides with her alleged onset of disability. Nevertheless, the ALJ noted

certain medical findings dating from before the earlier period of disability. A May

29, 1999, cervical x-ray showed spondylosis at C6-C7 on the left, quite pronounced. 

T. 397. Hospital records also revealed slightly displaced fractures of the left distal

tibia and fibula dating from November 30, 2001. T. 402-405. These fractures were

treated with closed reduction and application of a long leg cast.

In August 2003, while incarcerated, plaintiff underwent a diagnostic

examination and evaluation conducted by psychiatrist Bruce Schoolcraft, D.O., who

diagnosed plaintiff with schizoaffective disorder, mild depression, a history of knee

replacement, hypertension, and asthma. T. 18, 362-64. Dr. Schoolcraft prescribed

medication for depression and schizophrenia, and scheduled a reevaluation in one

month. T. 364. The ALJ noted an absence of any record evidence to show plaintiff

returned to Dr. Schoolcraft or any other mental health professional until January 31,

2005, upon a referral by State Disability Determinations Services. At that time, Dr.

George Horvat, Ph.D., diagnosed post-traumatic stress disorder stemming from

childhood abuse, major depressive disorder, recurrent, and ruled out antisocial

personality disorder. T. 359-361.

Also in early 2005, plaintiff established care with the Calhoun County Health

Department (CHD). On January 3, 2005, plaintiff first saw providers at CHD. T.

231, 232, 244, 245, 254, 255, 313. Plaintiffsaid she took blood pressure medication

when she was incarcerated and had been without the medication since her release. 

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T. 254, 313. Plaintiff’s blood pressure measured 150/102. Tr. 254. Dorcas

Goodman, A.R.N.P, ordered laboratory tests and provided plaintiff with samples of

Diovan, a blood pressure medication. T. 254, 313-14. On January 11, 2005, plaintiff

returned to the CHD complaining of hypertension and asthma. T. 232, 244-45, 253,

312. Plaintiff said that she was supposed to be on cholesterol medication but was

unable to afford it. T. 253, 312. Plaintiff was given Zocor, used to lower blood

cholesterol, and advised to continue treatment with Diovan. T. 231, 244-45, 253,

312. Her blood pressure was recorded as 130/80. T. 312.

Also, during that time frame, plaintiffsought treatment atJackson Hospital for

headaches and low back pain. T. 309. She received medication and was instructed

to follow up with her primary care doctor. Her blood pressure measured 128/88 at

the time of the visit, January 16, 2005.

At the request of the Social Security Administration, Dr. Muhammed Naeem,

an internist, performed a consultative examination. Dr. Naeem noted medical

problems including severe depression, high blood pressure, chronic low back pain,

and high cholesterol. He also noted a recent diagnosis of sickle-cell disease and a

history of knee pain. T. 350-352. On examination, Dr. Naeem found an apparently

normal back, without muscle spasm or tenderness. Plaintiff was able to walk without

a limp, and able to sit, stand, and climb up and get down from the examination table

without difficulty. T. 352. Dr. Naeem felt plaintiff was being properly taken care of

by the CHD.

In January 2005, plaintiff underwent the aforementioned consultative

psychological examination by Dr. Horvat. T. 359-361. Dr. Horvat found no

impairment in attention, concentration, or memory. Plaintiff was cooperative, with

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depressed mood and affect. She appeared of below average intelligence and capable

of only simple decision making. The diagnosis included post-traumatic stress

disorder, major depressive disorder, borderline intellectual function, and ruled out

antisocial personality disorder. Dr. Horvat believed plaintiff would need close

supervision, if she could be motivated to work.

Plaintiff received much of her care from the CHD, T. 231-262, and from the

emergency room at Calhoun-Liberty Hospital. T. 177-229. Her complaints included

high cholesterol, high blood pressure, and headaches. Plaintiff did not report to CHD

from November 22, 2005, when she obtained samples of her cholesterol medication,

until April 18, 2007. T. 248, 236-238. In April, her complaints included back pain,

relieved somewhat with aspirin and Tylenol. She returned to CHD on May 29, 2007,

seeking help with completing her food stamp form. T. 234. Returning to the

emergency room on June, 21, 2007, plaintiff was provided with blood pressure 

medications and discharged. T. 185. On August 14, 2007, plaintiff presented at the

emergency room saying she had been assaulted. T. 182. Examination revealed no

bodily injury “anywhere,” and no bruising or abrasion. The exam also was negative

for back tenderness. T. 183.

HEARING BEFORE THE ALJ

Plaintiff testified at her administrative hearing on September 11, 2007. T. 419-

467. She recounted her past employment as a fast food cook, motel housekeeper, and

laundry presser. Her last job was on the grill at Burger King during 2005. When

asked by her lawyer why she couldn’t work, plaintiff mentioned her blood pressure,

her cholesterol, her intelligence level, her back, and her history of broken legs. T.

433. Her blood pressure was normal when she took her medication, which she had

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with her on the day of the hearing. T. 435, 437. She felt her standing would be

limited to 10 or 20 minutes, she could walk around the block, but couldn’t lift more

than maybe 10 pounds. T. 437. She often stays with friends, where she helps with

dishes, but does no other house work. She spends most of her time “trying to figure

out how to get me some money without laying on my back.” T. 439.

Also appearing at the hearing was Paul Dolan, stipulated by plaintiff as a

vocational expert. T. 447. The ALJ asked Mr. Dolan to consider plaintiff’s age, her

education, her past work experience, that in an eight-hour workday she could sit,

stand, and walk up to six hours each, could lift 20 pounds occasionally, 10 pounds

frequently, would not be able to climb any ladders, ropes, or scaffolds, could not

work at unprotected heights or around machinery, had no manipulative limitations,

and would be limited to unskilled, entry-level work. T. 453. With those limitations,

2

the hypothetical individual would be able to “go back to work as a fast food worker,

as defined and performed, and as a presser, all around, as defined.” T. 454. Such a

person could also perform a number of other jobs readily available in the national

economy. T. 454-455. With additional limitations of two hours standing, six hours

sitting, and lifting up to ten pounds occasionally, Mr. Dolan identified two jobs

present in significant numbers in the national economy. T. 456. 

ANALYSIS

Plaintiff first argues the ALJ erred by improperly rejecting her testimony

concerning the effects and resulting limitations imposed by the combination of her

medically determinable impairments. Under this point, plaintiff primarily takes issue

 The hypothetical comprises plaintiff’s ultimately determined residual functional 2

capacity. T. 20.

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with the ALJ’s determination that “claimant’s statements concerning the intensity,

persistence and limiting effects of [her] symptoms are not entirely credible.” This

point necessarily invokes the familiar “pain standard” and it’s eternal companion, the

credibility of a disability claimant.

Under well-established controlling law, pain is treated, for purposes of the

disability analysis, as a symptom of disability. Title 20 C.F.R. § 404.1529 provides

in part that the Commissioner will not find disability based on symptoms, including

pain alone, “. . . unless medical signs or findings show that there is a medical

condition that could be reasonably expected to produce these symptoms.” Accord

20 C.F.R. § 416.929. The Eleventh Circuit has articulated the three-part pain

standard, sometimes referred to as the Hand test, as follows: 3

In order to establish a disability based on testimony of pain and other

symptoms, the claimant must satisfy two parts of a three-part test

showing: (1) evidence of an underlying medical condition; and (2) either

(a) objective medical evidence confirming the severity of the alleged

pain; or (b) that the objectively determined medical condition can

reasonably be expected to give rise to the claimed pain. 

Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002) (citing Holt v. Sullivan,

921 F.2d 1221, 1223 (11th Cir. 1991)); Adamo v. Comm’r of Soc. Sec., 365 F. App’x

209, 214 (11th Cir. 2010) (quoting Wilson, 284 F.3d at 1225); Elam v. R.R. Ret. Bd.,

921 F.2d 1210, 1216 (11th Cir. 1991).

Hand v. Bowen, 793 F.2d 275, 276 (11th Cir.1986) (the case originally adopting the 3

three-part pain standard).

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The Eleventh Circuit has also approved an ALJ’s reference to and application

of the standard set out in 20 C.F.R. § 404.1529, because that regulation “contains the

same language regarding the subjective pain testimony that this court interpreted

when initially establishing its three-part standard.” Wilson, 284 F.3d at 1226. Thus,

failure to cite to an Eleventh Circuit standard is not reversible error so long as the

ALJ applies the appropriate regulation. 

But “[w]hile both the Regulations and the Hand standard require objective

medical evidence of a condition that could reasonably be expected to cause the pain

alleged, neither requires objective proof of the pain itself.” Elam, 921 F.2d at 1215. 

The Eleventh Circuit has held that “pain alone can be disabling, even when its

existence is unsupported by objective evidence.” Foote v. Chater, 67 F.3d 1553,

1561 (11th Cir. 1995) (citing Marbury v. Sullivan, 957 F.2d 837, 839 (11th Cir.

1992)); Walker v. Bowen, 826 F.2d 996, 1003 (11th Cir. 1987); Hurley v. Barnhart,

385 F. Supp. 2d 1245, 1259 (M.D. Fla. 2005). The presence or absence of evidence

to support symptoms of the severity claimed, though, remains a factor that can be

considered. Marbury, 957 F.2d at 839-40; Tieniber v. Heckler, 720 F.2d 1251, 1253

(11th Cir. 1983). 

Finally, if the Commissioner refuses to credit subjective testimony of the

plaintiff concerning pain, he must do so explicitly and give reasons for that decision. 

MacGregor v. Bowen, 786 F.2d 1050, 1054 (11th Cir. 1986). Where he fails to do

so, the Eleventh Circuit has stated that it would hold as a matter of law that the

testimony is accepted astrue. Holt, 921 F.2d at 1223; MacGregor, 786 F.2d at 1054. 

Although the Eleventh Circuit does not require an explicit finding as to a claimant’s

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credibility, the implication must be obvious to the reviewing court. Dyer v. Barnhart,

395 F.3d 1206, 1210 (11th Cir. 2005). “The credibility determination does not need

to cite particular phrases or formulations but it cannot merely be a broad rejection

which is not enough to enable the reviewing court to conclude that the ALJ

considered the claimant’s medical condition as a whole.” Id. (internal quotations and

citations omitted). And of course, the reasons articulated for disregarding the

plaintiff’s subjective pain testimony must be based upon substantial evidence. 

Wilson, 284 F.3d at 1225-26; Jones v. Dep’t of Health and Human Servs., 941 F.2d

1529, 1532 (11th Cir. 1991); Hurley, 385 F. Supp. 2d at 1259. 

Underlying the Hand standard is the need for a credibility determination

concerning a plaintiff’s complaints of pain. Those complaints are, after all,

subjective. “[T]he ascertainment of the existence of an actual disability depend[s] on

determining the truth and reliability of [a claimant’s] complaints ofsubjective pain.” 

Scharlow v. Schweiker, 655 F.2d 645, 649 (5th Cir. 1981) (holding that the ALJ must

resolve “the crucial subsidiary fact of the truthfulness of subjective symptoms and

complaints”). People with objectively identical conditions can experience 4

significantly different levels of pain, and pain is more readily treated in some than in

others. “Reasonable minds may differ as to whether objective medical impairments

could reasonably be expected to produce [the claimed] pain. This determination is

a question of fact which, like all factual findings by the [Commissioner], is subject

only to limited review in the courts . . . .” Hand v. Heckler, 761 F.2d 1545, 1548-49

 Decisions of the United States Court of Appeals for the Fifth Circuit decided prior to 4

September 30, 1981, are binding precedent in the Eleventh Circuit. Bonner v. Pritchard, 661

F.2d 1206, 1207 (11th Cir.1981) (en banc).

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(11th Cir. 1985). It is within the ALJ’s “realm of judging” to determine whether “the

quantum of pain [a claimant] allege[s] [is] credible when considered in the light of

other evidence.” Arnold v. Heckler, 732 F.2d 881, 884 (11th Cir. 1984). Thus, a

physician may be told by a patient that he or she is in pain, and the physician may

believe it, but the ALJ is not bound by that. The evidence as a whole, including the

existence of corroborating objective proof or the lack thereof, and not just a

physician’s belief or the plaintiff’s claims, is the basis for the ALJ’s credibility

determination.

Undoubtedly, plaintiff has a myriad of impairments. These include, as

recognized by the ALJ, hypertension, back pain, history of right leg pain, history of

asthma, history of left tibia fracture with knee pain, status post surgery of knee,

alcoholism, schizoaffective disorder, post-traumatic stress disorder, major depressive

disorder, and anti-social personality disorder. T. 18. Conceding that these conditions

imposed restrictions upon plaintiff, the ALJ nonetheless found her complaints less

than entirely credible. Based upon plaintiff’s psychological limitations, the ALJ

found she was limited to unskilled, entry-level work. If the ALJ has discounted

plaintiff’s subjective complaints, in a way supported by the record, this finding must

stand.

Having closely reviewed the medical records in this case, I note that nothing

in those records unfailingly supports a claim of disabling pain. Plaintiff had a history

ofleg injury, back pain and some medical disorders, such as hypertension and asthma. 

No objective evidence, however, has tied these ailments to the production of

disabling pain. Plaintiff had, in disability reports, represented she had severe pain

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“all day everyday.” Yet at the hearing she described her pain as twice a week. T.

142. She claimed that on those two days she could only lay in bed. Again, nothing

in the medical records supports a claim of such intense pain. See Foote, 67 F. 3d at

1560-1561, (“A claimant may establish that her pain is disabling through objective

medical evidence that an underlying medical condition exists that could reasonably

be expected to produce the pain.”) Here, the ALJ questioned the intensity,

persistence, and limiting effects of plaintiff’s symptoms. The question is not simply

whether plaintiff has medical conditions that could be expected to produce pain. 

Instead, the disability determination must include a quantitative assessment of the

limiting effects of such pain. The ALJ engaged is this type of analysis.

A November, 2005 knee x-ray showed stabilizing hardware in place, with no

evidence of acute hardware failure or refracture. T. 275. Plaintiff had good range of

motion, as well as normal strength and reflexes. She could walk without difficulty. 

Consultant Dr. Naeem found a normal back with no spasm or tenderness. T. 352. 

Plaintiff argued to the Appeals Council that she had an August 2007 MRI showing

cervical spondylosis, and the record confirms a 1999 study with such a finding. The

Commissioner urges that no evidence of the 2007 MRI appears of record. It is not

at all clear, in any event, how an abnormality in the neck would account for plaintiff’s

generalized complaints of pain , and plaintiff has not demonstrated that it does.

5

 Plaintiff points to no complaints of pain or limitation relating to the cervical spine. Her

5

disability application notes, “I have back pain it is the low part of my back . . . .” T. 343. 

Plaintiff may well have evidence of spondylosis, but with respect to this claim, it is a red herring. 

See “Cervical Spondylosis” Mayo Clinic,

http://www.mayoclinic.com/health/cervical-spondylosis/DS00697/DSECTION=symptoms

(Collecting as symptoms stiff, painful neck; shoulder, arm or chest pain; tingling and pinprick

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As the medical records note, and the ALJ observed, there is no abnormality of

the back. The records confirm that plaintiff could walk and stand without difficulty

during examinations. This is consistent with the absence of medical evidence

showing plaintiff sought treatment consistent with her allegations of disabling pain. 

From November 1, 2005 until April 18, 2007, coinciding with the 14 or so months

after she requested an administrative hearing, she eschewed all medical treatment. 

She did not so much as report to the CHD or the local emergency room. This was at

a time just after Dr. Naeemhad reported that the health department would be adequate

to take care of her. Even when she did go to CHD, she often sought medication for

her blood pressure and cholesterol, with only intermittent complaints of pain. T. 231-

255. When she did go to the clinic after more than a year’s absence, she complained

of headaches, but said her back had improved with aspirin and Tylenol. She declined

the recommended follow up after that April 2007 visit, returning only when she

wanted assistance to complete a food stamp application.

Plaintiff’s sporadic visits to the emergency room are equally inconclusive and

are not supportive of a claim of constant disabling pain. In May 2007, she came in

with a complaint of dental pain, but despite observation over a period of hours, made

no complaint of back pain. T. 196. In June, she had “epigastric” pain, but made no

mention of back pain. T. 191. In August of 2007, plaintiff reported “no” pain. T.

182.

sensations in arms, hands, legs, or feet; numbness and weakness in arms, hands, legs, or feet;

lack of coordination; difficulty walking; abnormal reflexes; and loss of bladder or bowel control)

(visited 8/22/2011).

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I will also note, as did the ALJ, that plaintiff’s complaints of financial inability

to seek out, and continue, treatment are not entirely convincing. Plaintiff smoked

from one-half to one pack of cigarettes a day. She testified she drank a quart of beer

a day, and other records corroborate her consumption. As the ALJ stated, “It appears

reasonable to conclude that if the claimant was serious about her health, she would

divert the funds used for alcohol for medical treatment.” T. 23. A conservative

assessment of the cost of plaintiff’s tobacco and alcohol use must be placed in the

range of $180 to $220 a month, even using the quantities to which she admits. This

is not a judgment as to lifestyle; it is merely another flaw in plaintiff’s supposed

sword of credibility, as properly assessed by the ALJ. The ALJ properly tempered

his view of plaintiff’s credibility, and I find no error in his doing so.

Plaintiff next argues that the ALJ failed to evaluate the effects and limitations

imposed by her combination ofsevere impairments. “Where a disability claimant has

alleged several severe impairments, the Secretary has a duty to consider the

impairments in combination and to determine whether the combined impairments

render the claimant disabled.” Jones v. Dep’t of Health and Human Servs., 941 F. 2d

at 1533; see also Jones v. Bowen 810 F. 2d 1001,1006 (11th Cir. 1986) (“It is now

well settled that the ALJ must consider the combined effects of a claimant’s

impairments in determining whether he is disabled.”). As applied by the Eleventh

Circuit, this rule requires the ALJ to “consider every impairment alleged.” Gibson

v. Heckler, 779 F. 2d. 619, 623 (11th Cir. 1986). A statement by the ALJ that “‘based

upon a thorough consideration of all evidence, the ALJ concludes that [claimant] is

not suffering from any impairment, or a combination of impairments of sufficient

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severity to prevent him from engaging in any substantial gainful activity for a period

of at least twelve continuous months[,]” will suffice to demonstrate that the ALJ “has

considered the combination issue.” Wheeler v. Heckler, 784 F. 2d 1073, 1077 (11th

Cir. 1986). The ALJ maintains the duty to make “findings as to the effect of the

combination of impairments and to decide whether the combined impairments cause

the claimant to be disabled.” Bowen v. Heckler, 748 F. 2d 629, 635 (11th Cir. 1984);

see also Walker v. Bowen, 826 F. 2d 996 (11th Cir. 1987).

Here, the ALJ discussed in detailsome ofthe individual impairmentssupported

by the evidence. In particular, the ALJ made findings concerning back pain, knee

pain, and high blood pressure. T. 22-23. Nevertheless, plaintiff argues the ALJ

defaulted in his obligation to make findings regarding the combined effects of all

severe impairments. Certainly, this analysis would be simpler had the ALJ availed

himself of the finding approved in Wheeler, concerning the combination of

impairments. This arguable shortcoming notwithstanding, plaintiff has not herself

articulated exactly what she has in mind concerning the combined disabling effects

of her impairments, and the same is not obvious to me. My inability to find any

prejudice to plaintiff is strengthened by the ALJ’s direct reference to plaintiff’s

“emotional problems” in his assessment of residual functional capacity. T. 20. At

thisstage the ALJ made a detailed finding concerning plaintiff’s physical limitations,

and went on to qualify that finding by noting that the psychological problems would

limit plaintiff to “unskilled entry level work.” T. 20. The ALJ went further, stating

that although plaintiff’s primary complaints concerned blood pressure and back pain,

“she had other problems.” T. 21. He then considered her history of leg fracture, her

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asthma, her dizziness, and her depression. T. 21-22. Having found that plaintiff is

not disabled by credible reports of pain, the ALJ imposed upon those findings his

comments concerning “mental limitations.” T. 23. He expressly considered the

“physical and mental demands” of those jobs that could be accommodated by

plaintiff’s residual functional capacity. T. 24. Accordingly, I find no error in the

ALJ’s evaluation of the combination of plaintiff’s severe impairments. See Wilson

v. Barnhart, 284 F. 3d 1219, 1224-1225 (11th Cir. 2002) (reversing district court’s

finding that “ALJ did not discuss the cumulative effects of Plaintiff’s impairments”

where the statements of the ALJ “evidenced consideration of the combined effects of

a claimant’s impairments”).

In plaintiff’s last point, she argues the ALJ failed to pose a complete

hypothetical question to the vocational expert. Plaintiff finds that the hypothetical

did not include all of plaintiff’s impairments. She relies upon Jones v. Apfel, 190 F.

3d 1224, 1229 (11th Cir. 1999) (requiring a hypothetical question “which comprises

all of the claimant’s impairments”). Plaintiff argues that by merely limiting her

ability to “unskilled entry level work,” the ALJ overlooked her multiple mental

impairments. Her argument is not specific, but only mentions the presence of

“multiple mental impairments.” She does not bother to link these impairments to her

claimthat the hypothetical question, and the determined residual functional capacity,

overlooked the spectrum of mental impairments.

The ALJ, however, did not err in assessing residual functional capacity (the

basis for the hypotheticals), nor did he overlook those mental impairments that

affected plaintiff’s ability to work. Residual functional capacity is based on all of the

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relevant evidence, including the objective medical evidence, the claimant’s medical

source opinions and any other evidence showing how the claimant’s impairments and

related symptoms affect her ability to work. See 20 C.F.R. § 416.929(a). 

The ALJ did not overlook the opinions of the psychological experts. Instead,

as the Commissioner argues, the ALJ properly found that despite multiple mental

impairments, plaintiff would be capable of performing simple, repetitive tasks on a

sustained basis. Dr. Conger, one of the psychologists relied upon by plaintiff, found

a number of disorders, but also found, as did the ALJ, that plaintiff did not meet the

criteria for a listed impairment. T. 294. As Dr. Conger noted, plaintiff “shows the

mental ability to perform routine [activities of daily living] . . . . [S]he remains

functional from a mental perspective. . . . She . . . displays an overall adequate Mental

Status, with no indication of significant cognitive deficits. . . . She is also able to

relate in a socially appropriate manner . . . .” T. 295. As argued by the

Commissioner, Dr. Conger supported a conclusion that plaintiff could perform

“simple, repetitive tasks on a sustained basis.” T. 299. She also has “adequate social

skills and adaptation abilities.” T. 299.

Dr. Patrick Peterson, Ph.D., also evaluated mental status. He found no

restrictions in activities of daily living, mild difficulties in maintaining social

functioning, moderate difficulties in maintaining concentration, persistence or pace,

and no episodes of decompensation. T. 335. Dr. Peterson’s Mental Functional

Capacity Assessment is not helpful to plaintiff’s argument. This instrument

concludes that plaintiff functions adequately and may be considered able to sustain

the mental demands of “appropriate concentrated task-oriented activity.” The

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findings of these consultants most certainly underlie the hypothetical inquiry made

by the ALJ. Accordingly, the hypothetical question, with its assumed residual

functional capacity, was faithful to the evidence, and plaintiff’s claim to the contrary

is without merit.

Based upon the foregoing analysis, the decision is in compliance with

appropriate legal standards. See Carnes, 936 F.2d at 1218 (“[T]hisCourt may reverse

the decision of the [Commissioner] only when convinced that it is not supported by

substantial evidence or that proper legal standards were not applied.”). It istherefore

respectfully RECOMMENDED:

The application for a period of disability and disability benefits be DENIED

and the Commissioner’s decision be AFFIRMED.

At Pensacola, Florida, this 24th day of August, 2011.

/s/Charles J. Kahn, Jr.

CHARLES J. KAHN, JR.

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed within

fourteen days after being served a copy hereof. Any different deadline that may

appear on the electronic docket is for the court’s internal use only, and does not

control. A copy of any objections shall be served upon any other parties. Failure to

object may limit the scope of appellate review of factual findings. See 28 U.S.C. §

636; United States v. Roberts, 858 F.2d 698, 701 (11th Cir. 1988).

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