IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

SHARON E. ADKINS,

Plaintiff,

vs. CASE NO. 1:11-cv-09-MP-GRJ

MICHAEL J. ASTRUE,

Commissioner of Social Security

Defendant.

 /

REPORT AND RECOMMENDATION

Plaintiff appeals to this Court from a final decision of the Commissioner of Social

Security (the “Commissioner”) denying Plaintiff’s applications for a period of disability

and disability insurance benefits and supplemental income benefits pursuant to Title II

and XVI of the Social Security Act. (Doc. 1.) The Commissioner has answered (Doc.

9), and both parties have filed briefs outlining their respective positions. (Docs. 16 &

17.) For the reasons discussed below, it is recommended that the Commissioner’s

decision be AFFIRMED.

I. PROCEDURAL HISTORY

Plaintiff protectively filed concurrent applications for a period of disability,

disability insurance benefits, and supplemental security income under Title II and Title

XVI on March 10, 2005, alleging a disability onset date of March 9, 2005 due to mental

problems and pain in her heel. (R. 57-61, 269-71.) These applications were denied

initially and upon reconsideration. (R. 33, 271-74.) Following a hearing, an

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administrative law judge (ALJ) issued a decision unfavorable to Plaintiff on January 31,

2007. (R. 16-26.) The Appeals Council denied Plaintiff’s request for review on August

10, 2007. (R. 5-7.) Plaintiff sought review in this Court, and on March 17, 2009, the

Court issued an Order affirming the Commissioner’s decision. Adkins v. Astrue, Doc.

20, Case No. 1:07-cv-209-MP-AK (N.D. Fla., March 17, 2009) (vacated). Plaintiff

sought review in the U.S. Court of Appeals for the Eleventh Circuit, and at Defendant’s

request, the case was remanded to this Court with instructions to vacate its Order and

further remand the case to the Appeals Council for further proceedings. (R. 538-42.) 

On remand, the ALJ conducted a second hearing on July 13, 2010. The ALJ

had been directed by the Appeals Council to consider the Plaintiff’s mental impairment

plus her asthmatic limitations as well as to receive evidence from a vocational expert. 

Following the hearing, the ALJ rendered a decision on September 20, 2010, finding that

Plaintiff was not eligible for disability or SSI benefits. (R.300-10.) On January 18,

2011, Plaintiff filed the instant appeal to this Court. (Doc. 1.)

II. FINDINGS OF THE ALJ

The ALJ determined that Plaintiff met the insured status requirements of the

Social Security Act through March 31, 2010. He further determined that Plaintiff had

not engaged in substantial gainful activity since March 9, 2005. (R. 302.) The ALJ

found that Plaintiff had the following severe impairments: insulin dependent diabetes

mellitus, affective disorder, obesity, asthma, and kidney disease. The ALJ went on to

find at step three of the sequential evaluation that Plaintiff did not have an impairment

or combination of impairments that met or medically equaled one of the listed

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impairments. (R. 303-04.) 

With respect to Plaintiff’s residual functional capacity at step four of the

sequential evaluation, the ALJ determined that Plaintiff retained the residual functional

capacity (RFC) to perform light work as defined in 20 C.F.R. § § 404.1567(b) and

416.967(b) with the following specifications: she should avoid moderate exposure to

fumes, odors, and dust; she can only perform simple, routine, repetitive tasks; and she

can only occasionally interact with the public. (R. 304-05.) The ALJ concluded that

Plaintiff’s medically determinable impairments could reasonably be expected to produce

some of Plaintiff’s alleged symptoms but that Plaintiff’s statements concerning the

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

extent they conflicted with the ALJ’s RFC assessment. (R. 308.) The ALJ noted that

Plaintiff’s statements were inconsistent with her own prior statements and with the

medical evidence in the record. (R. 308.) The ALJ concluded at step four that Plaintiff

was capable of performing her past relevant work as a cleaner/housekeeper. A 1

vocational expert testified that an individual of the same age, education, and residual

functional capacity as Plaintiff could perform her past relevant work. The VE testified

that such an individual would be able to work as a cleaner/housekeeper (R. 309.) The

ALJ thus concluded that Plaintiff had not been under a disability at any time from March

On page 10 of the ALJ’s written decision the ALJ wrote “the claimant is unable to perform the

1

claimant’s past relevant work.” R. 309. The Court assumes this was a typographical error because in the

next sentence the ALJ stated he concurred with the VE – who had concluded the claimant could perform

her past work as a cleaner/housekeeper. Further, in the last sentence the ALJ wrote “the undersigned

finds that the claimant is able to perform it [past relevant work] as actually performed.” Lastly, in the

heading for section 6. of the written decision the ALJ stated “[T]he claimant is capable of performing past

relevant work as a cleaner/housekeeper,” thus leaving little doubt that the ALJ concluded Plaintiff could

perform her past relevant work.

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9, 2005, through the date of his decision.

III. ISSUES PRESENTED

Plaintiff argues that the ALJ did not properly assess her RFC, did not consider

her severe impairments in combination, and failed to include all of Plaintiff’s limitations

in the hypotheticals to the VE. (Doc. 1.) Stated another way, the issues are whether

the ALJ’s evaluation of Plaintiff’s subjective complaints comports with the Eleventh

Circuit pain standard; whether the ALJ’s assessment of her RFC is supported by

substantial evidence; and whether the ALJ’s determination that Plaintiff can perform her

past relevant work is supported by substantial evidence.

IV. STANDARD OF REVIEW

The Commissioner's findings of fact are conclusive if supported by substantial

evidence. Substantial evidence is more than a scintilla, i.e., the evidence must do more 2

than merely create a suspicion of the existence of a fact, and must include such

relevant evidence as a reasonable person would accept as adequate to support the

conclusion.3

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, and even if the reviewer finds that the evidence preponderates against

See 42 U.S.C. § 405(g) (2000).

2

Foote v. Chater, 67 F.3d 1553, 1560 (11 Cir. 1995) (citing W alden v. Schweiker, 672 F.2d 835,

3 th

838 (11 Cir. 1982) and Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 842

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(1971)); accord, Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11 Cir. 1991).

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the Commissioner's decision. The district court must view the evidence as a whole,

4

taking into account evidence favorable as well as unfavorable to the decision.5

However, the district court will reverse the Commissioner's decision on plenary review if

the decision applies incorrect law, or if the decision fails to provide the district court with

sufficient reasoning to determine that the Commissioner properly applied the law.6

The law defines disability as the inability to do any substantial gainful activity by

reason of any medically determinable physical or mental impairment that can be

expected to result in death, or has lasted or can be expected to last for a continuous

period of not less than twelve months. The impairment must be severe, making 7

Plaintiff unable to do his previous work, or any other substantial gainful activity which

exists in the national economy.

8

The ALJ must follow five steps in evaluating a claim of disability. First, if a 9

claimant is working at a substantial gainful activity, he is not disabled. Second, if a 10

Edwards, 937 F.2d at 584 n.3; Barnes v. Sullivan, 932 F.2d 1356, 1358 (11 Cir. 1991).

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Foote, 67 F.3d at 1560; accord, Lowery v. Sullivan, 979 F.2d 835, 837 (11 Cir. 1992) (holding

5 th

that the court must scrutinize the entire record to determine reasonableness of factual findings); Parker v.

Bowen, 793 F.2d 1177 (11 Cir. 1986) (finding that the court also must consider evidence detracting from

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evidence on which the Commissioner relied).

Keeton v. Dep’t Health and Human Servs., 21 F.3d 1064, 1066 (11 Cir. 1994).

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42 U.S.C. §§ 416(i), 423(d)(1); 20 C.F.R. § 404.1505 (2005) (All further references to 20 C.F.R.

7

will be to the 2005 version unless otherwise specified.).

42 U.S.C. § 423(d)(2); 20 C.F.R. §§ 404.1505-404.1511.

8

20 C.F.R. §§ 404.1520, 416.920. The claimant has the burden of proving the existence of a

9

disability as defined by the Social Security Act. Carnes v. Sullivan, 936 F.2d 1215, 1218 (11 Cir. 1991).

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20 C.F.R. § 404.1520(b).

10

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claimant does not have any impairment or combination of impairments which

significantly limit his physical or mental ability to do basic work activities, then he does

not have a severe impairment and is not disabled. Third, if a claimant's impairments

11

meet or equal an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, he is

disabled. Fourth, if a claimant's impairments do not prevent him from doing past 12

relevant work, he is not disabled. Fifth, if a claimant's impairments (considering his 13

residual functional capacity (“RFC”), age, education, and past work) prevent him from

doing other work that exists in the national economy, then he is disabled.14

The burden of proof regarding the plaintiff’s inability to perform past relevant

work initially lies with the plaintiff. The burden then temporarily shifts to the 15

Commissioner to demonstrate that “other work” which the claimant can perform

currently exists in the national economy. The Commissioner may satisfy this burden

16

by pointing to the Medical-Vocational Guidelines (the “Grids”) for a conclusive

20 C.F.R. § 404.1520(c).

11

20 C.F.R. § 404.1520(d).

12

20 C.F.R. § 404.1520(e).

13

20 C.F.R. § 404.1520(f).

14

Walker v. Bowen, 826 F.2d 996, 1002 (11 Cir. 1987); see also Doughty v. Apfel, 245 F.

15 th

3d 1274, 1278 (11 Cir. 2001).

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Doughty, 245 F.3d at 1278 n.2. In Doughty the court explained this burden shifting as follows:

16

In practice, the burden temporarily shifts at step five to the Commissioner. The

Commissioner must produce evidence that there is other work available in significant

numbers in the national economy that the claimant has the capacity to perform. In order

to be considered disabled, the claimant must then prove that he is unable to perform the

jobs that the Commissioner lists. The temporary shifting of the burden to the Commissioner

was initiated by the courts, and is not specifically provided for in the statutes or

regulations.) (Internal citations omitted).

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determination that a claimant is disabled or not disabled. 

17

However, the ALJ should not exclusively rely on the Grids when “the claimant

has a non-exertional impairment which significantly limits his or her basic work skills or

when the claimant cannot perform a full range of employment at the appropriate level of

exertion.” In a situation where both exertional and non-exertional impairments are 18

found, the ALJ is obligated to make specific findings as to whether they preclude a wide

range of employment.19

The ALJ may use the Grids as a framework to evaluate vocational factors so

long as he introduces independent evidence of the existence of jobs in the national

economy that the claimant can perform. Such independent evidence may be 20

introduced by a Vocational Expert’s (“VE”) testimony, but this is not the exclusive

means of introducing such evidence. Only after the Commissioner meets this burden

21

does the burden shift back to the claimant to show that he or she is not capable of

performing the “other work” as set forth by the Commissioner.

Walker, 826 F.2d at 1002 (“[T]he grids may come into play once the burden has shifted to the

17

Commissioner to show that the claimant can perform other work.”).

Wolfe v. Chater, 86 F.3d 1072, 1077 ( 11 Cir. 1996). See Jones v. Apfel, 190 F.3d 1224, 1229

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(11 Cir. 1999); W alker, 826 F.2d at 1003 (“The grids may be used only when each variable on the

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appropriate grid accurately describes the claimant’s situation.”).

W alker, 826 F.2d at 1003.

19

W olfe, 86 F.3d at 1077-78.

20

See id.

21

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V. SUMMARY OF THE RECORD

A. Medical History

Plaintiff saw Dr. Christina Medina at the Shands at UF Clinic on March 1, 2005.

She complained of pain in her left heel for the past few months. Plaintiff stated that she

wore an ankle band that seemed to help but had not tried any pain medication. Plaintiff

admitted that she had been somewhat non-compliant with her diabetes treatment; her

glucometer broke and she had not been checking her sugars on a daily basis. Dr.

Medina observed that Plaintiff was “a pleasant female” with some tenderness upon

palpation on the bottom of her heel. An x-ray revealed a possible bone spur. Dr.

Medina recommended Ibuprofen. (R. 157-58.)

Psychologist Andres Nazario, Jr., Ph.D., evaluated Plaintiff on May 13, 2005. 

Plaintiff presented casually dressed and well-groomed. She walked without difficulty

and was cooperative throughout the interview. Plaintiff complained that she applied for

disability benefits due to bipolar disorder, depression, asthma, and pain on the bottom

of her foot when she walks. She told Dr. Nazario that she was Baker Acted the

previous year after cutting her arm with a piece of glass. Plaintiff stated that she did not

like to socialize or do much, and that she was fired in February 2005 because she

couldn’t get along with others. Her activities included grocery shopping 2-3 times per

week, cooking, cleaning, laundry, watching TV, and playing computer games. Plaintiff

said she sometimes visits a friend. During the interview, Plaintiff was alert and

cooperative with a somewhat depressed mood. Dr. Nazario diagnosed Plaintiff with

anxiety disorder and bipolar disorder. Dr. Nazario opined that Plaintiff would be able to

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concentrate, understand, and follow directions but might experience difficulty interacting

appropriately with others. (R. 213-215.)

State agency psychiatrist Alejandro F. Vergara, M.D., completed a psychiatric

review technique form and a mental RFC assessment form on May 19, 2005. Dr.

Vergara opined that Plaintiff had moderate limitations in carrying out detailed

instructions, maintaining concentration, completing a normal workday without

interruptions from psychological symptoms, and goal setting. He also noted that “taking

into consideration all information in the file, including current ADL, she appears to be

capable of doing simple, repetitive type tasks and assignments. (R. 217-234.)

Endocrinologist and internal medicine specialist Eric C. Puestow, M.D.,

completed a physical RFC assessment on June 13, 2005. Dr. Puestow opined that

Plaintiff could lift and carry 50 pounds occasionally and 25 pounds frequently; sit, stand,

and/or walk for about 6 hours in an 8-hour workday; and should avoid concentrated

exposure to fumes, odors, dusts, gases, and poor ventilation. (R. 235-242.)

State agency psychologist Michael A. Zelenka, Ph.D. completed a psychiatric

review technique and mental RFC assessment form on August 17, 2005. Dr. Zelenka

determined that Plaintiff had mild restrictions on activities of daily living and moderate

difficulties in maintaining social functioning and maintaining concentration, persistence,

or pace. Dr. Zelenka’s assessment of Plaintiff’s mental RFC was that she had

moderate limitations in the following areas: understanding and remembering detailed

instructions; carrying out detailed instructions; maintaining attention and concentration

for extended periods; working in coordination with or proximity to others without being

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distracted by them; completing a normal workday without interruptions from

psychologically based symptoms and performing at a consistent pace without an

unreasonable number and length of rest periods; interacting appropriately with the

general public; and setting realistic goals or making plan independently of others. (R.

243-260.)

On August 23, 2005, state agency physician Terry T. Rees, M.D., a board

certified general and thoracic surgeon, completed a physical RFC assessment. Dr.

Rees opined that Plaintiff could lift and carry 50 pounds occasionally and 25 pounds

frequently; sit, stand, and/or walk for about 6 hours in an 8-hour workday; and should

avoid concentrated exposure to fumes, odors, dusts, gases, and poor ventilation. (R.

261-268.)

Plaintiff had received mental health treatment at Meridian Behavioral Healthcare

since 2004. Plaintiff frequently treated with Paula Stowell, ARNP, at Meridian. Ms.

Stowell consistently noted that Plaintiff was making good progress and was doing well;

Plaintiff generally reported that her symptoms were managed with medication but often

reported difficulty sleeping. (R. 171-212, 393-411, 597-666.) In February 2006, Plaintiff

reported some auditory hallucinations and her progress was rated as fair. In December

2006, Plaintiff reported that she sometimes heard voices. (R. 606.) Edgar A. Walker,

M.D., saw Plaintiff several times in 2008 and 2009, and noted that her progress was

“good,” often 10 out of a 10-point scale. On October 2, 2009, Plaintiff reported

management of her symptoms with medication, occasional difficulty sleeping, and that

she enjoyed volunteering. (R. 337-385.) 

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Records from the Alachua County Health Department from 2005 to 2009 indicate

that Plaintiff’s diabetes was often uncontrolled and she often did not comply with her

recommended medication regimen June and September 2006 Plaintiff had not refilled

her prescriptions in several months. Health Department records also indicate that

Plaintiff’s hypertension was often uncontrolled, and she was encouraged to make

lifestyle changes to help control her conditions. (R. 411-527, 667-736.)

Plaintiff was evaluated by nephrologist Sathish K. George, M.D. on June 30,

2009 for her chronic kidney disease. Plaintiff reported a chronic rash on her arms and

thighs for 20 years. Dr. George diagnosed Plaintiff with Stage III chronic kidney

disease secondary to age-associated loss of GFR, diabetes mellitus, and hypertension. 

Dr. George noted that due her petechial rash, he could not rule out other causes, such

as a prior globulinemia-mediated renal disease. He ordered additional tests and

suggested medications. A subsequent renal ultrasound on July 13, 2009 revealed a

dromedary hump on Plaintiff’s left kidney, although he couldn’t rule out a left renal

mass. Treatment notes from September 10, 2009 indicated Plaintiff was “doing well”

and would continue with her medication regimen. A March 11, 2010 follow up note

indicated that Plaintiff continued to do well and would continue controlling her condition

with medication. (R. 386-392.)

Dr. Linda Abeles, Ph.D., performed a consultative examination of Plaintiff on

January 30, 2008. Plaintiff reported that she suffered from bipolar disorder, asthma,

diabetes, and hypertension. She reporting that she was fired from her job at a donut

shop because of “attitude problems.” Plaintiff described her activities of daily living as

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including going to the library. Plaintiff reported some feelings of depression with sleep

disturbances; she reported a previous history of auditory hallucinations. Dr. Abeles

diagnosed Plaintiff with bipolar disorder and personality disorder traits and assessed a

GAF of 65. Dr. Abeles opined that Plaintiff’s “current level of psychological functioning

would not necessarily preclude her from obtaining employment” but that her personality

disorder traits could make maintaining employment difficult. Dr. Abeles noted that

Plaintiff’s prognosis for future success in the workplace, given her time out of work,

would be fair at best. (R. 737-739.)

On February 26, 2008, state agency physician Angeles Alvarez-Mullin, M.D.,

completed a psychiatric review technique. Dr. Alvarez-Mullin opined that Plaintiff had

mild difficulties in activities of daily living, maintaining social functioning, and

maintaining concentration, persistence, or pace. (R. 74-753) 

B. Hearing Testimony

Plaintiff was 55 years old at the time of the July 13, 2010 hearing. She testified

that she lived by herself in an apartment and was a high school graduate. Plaintiff is

right-handed and has never had a driver’s license. (R. 758.) She traveled to the

hearing with her parents. Plaintiff testified that from 1990 to 2005, she worked as a

cashier in two different places–a grocery store and a doughnut shop. The tasks were

about the same in each job, and she was standing on her feet most of the time. (R.

759.) She testified that she had to lift about 10 pounds at her cashier jobs. Plaintiff

was also a custodian at the University of Florida, where she cleaned offices, bathrooms,

hallways, and classrooms. She was on her feet all day with that job and also had to lift

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about 10 pounds. 

Plaintiff testified that she has not done any work since March 9, 2005. (R. 760.) 

She testified that she has not really looked for work and that her parents help and she

receives food stamps. Plaintiff was fired from her cashier job at the doughnut shop

because she was being rude to a customer. She testified that had been rude before,

but at Meridian they put her on medication that seemed to help. (R. 761.) Plaintiff

testified that in 2004 she was Baker Acted because she was trying to hurt herself by

cutting her arms and legs. When she was working in 2005, she could not get along with

anybody at work although she didn’t experience the same problems at home. She

testified that she had difficulty getting along with some of her supervisors and coworkers as well–they did not want to have anything to do with her because she was

talking to them loudly. (R. 762.) 

Plaintiff testified that she continued to get treatment at Meridian because she

“needed the medication to get by.” She testified she was afraid to get a job because of

how she was acting and now she is having problems with her legs. If she stands too

long, they start hurting, but the pain stops when she sits down. Plaintiff told the ALJ

that “too long” means about an hour. Her problems with her legs started about four

years prior to the hearing. She didn’t recall the doctor telling her anything regarding her

legs and he did not prescribe her any medications. (R. 763.) Plaintiff testified that she

was not sure if it was a muscle ache but the pain did not move and stayed in the top of

legs in her hip and thigh area. The pain in her thigh and hip area bothered her mostly

when she was walking, as did her lower back. (R. 764.) She testified that she can walk

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a few blocks before her legs start bothering her. She does not receive treatment for her

legs or back and has not received any treatment for pain. The health department

provides treatment for her diabetes, high blood pressure, asthma, kidneys, and liver. 

(R. 765.) 

Plaintiff testified that since March 2005, her energy level as not been as good as

it was before. She is only able to be productive for a few hours before her legs bother

her, at which time she finds a place to sit down or goes home. She only takes over-thecounter medicine for her legs. (R. 766.) Plaintiff testified that her biggest problem in

being able to work is getting along with people. Her medications help as long as she’s

at home and not working, and she thought that even with the medications she would

have problems working. (R. 768.) She stated that she was often intimidated by others

at work. She lives by herself in an apartment and does not like visiting other people’s

apartments. She sees her parents a couple of times a year. (R. 769.) 

Plaintiff testified that she has a cart that she pushes to a grocery store about four

blocks away and she does not have any difficulty doing that or actually shopping. She

prefers to shop early in the morning before it gets too hot. (R. 770.) She gets along

“pretty good” with the employees at the store. At home, she does her own cleaning and

laundry and her personal needs such as bathing and dressing. Plaintiff testified that

her hobbies include watching TV and playing computer games. Mahjong is her favorite,

and she spends 3-4 hours per day playing it on the computer. Sometimes she will sit

and play for a couple of hours, get up, and then sit down again. (R. 771.) When she

watches TV, she might watch for four hours at a time.

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Plaintiff testified that she goes to Meridian every three months for her bipolar

condition. She thinks it is just staying the same, but doctors have told her it is getting a

little better. For her diabetes, Plaintiff takes insulin and has since 2006. (R. 772.) She

testified that she has been compliant with taking her diabetes medication. Plaintiff also

stated that she gotten better about controlling her diet and cooking for herself. She said

that other than grocery shopping, she leaves her apartment to go to doctor

appointments and sometimes to a restaurant. She rides the city bus and has no

problems with that. (R. 773.) Plaintiff testified that she goes to Meridian every three

months and to the health department every 2-3 months. (R. 774.)

A vocational expert (VE), V. David Pigue, also testified at the hearing. Mr. Pigue

testified that Plaintiff’s primary work experience was as a cashier/checker and as a

cleaner/housekeeping. (R. 776.) The cleaner position was light work with an SVP of 2

and is unskilled unemployment. Mr. Pigue testified that based on Plaintiff’s work

history, unskilled employment is appropriate. The ALJ posed a hypothetical to the VE

assuming a 55-year-old individual with a disability onset at 49 years of age, with same

education and past relevant work as Plaintiff. The ALJ asked the VE to further assume

that the individual had a RFC for light work with limitations of avoiding moderate

exposure to fumes, odors, and dust; and only performing simple, routine, repetitive

tasks. (R. 776.) Based on the hypothetical, the VE testified that the individual would be

able to perform past relevant work as a cashier/checker or cleaner/housekeeping. The

VE noted that the fumes and odors associated with mild housecleaning agents would

not be limiting, especially with the move to more “green” products. The VE also testified

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that there were no conflicts between his testimony and the Dictionary of Occupational

Titles or its companion publication. The ALJ then asked the VE what the outcome

would be if he added to the hypothetical that the individual could only have occasional

interaction with the public. (R. 777.) The VE testified that the additional restriction

would rule out cashiering. 

Plaintiff’s representative asked the VE to consider the hypothetical if the person

had a marked or severe ability to interact with the public, co-workers, or supervisors,

and who had a GAF of 50 due to depression and anxiety at a severe level. The VE

testified that it would be a serious issue from a non-exertional standpoint but that the

housekeeping job does not require interacting with people. (R. 778.) The VE testified

that the DOT distinguishes between residential and commercial housekeeping, but the

closest to Plaintiff’s past work would be cleaner, housekeeping. (R. 779-780.) 

Plaintiff’s representative asked the VE to consider the hypothetical where the marked

impairment interrupted the normal workday. The VE testified that the main problem

with severe limitation in that regard would be with attendance issues. (R. 780-781.)

VI. DISCUSSION

Plaintiff argues that the ALJ’s evaluation of Plaintiff’s subjective complaints did

not comport with the Eleventh Circuit pain standard and that the ALJ’s assessment of

Plaintiff’s RFC and determination that Plaintiff can perform her past relevant work are

not supported by substantial evidence.

A. The ALJ properly assessed Plaintiff’s credibility

As part of his credibility finding, the ALJ concluded that Plaintiff’s impairments

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could reasonably be expected to produce some of the alleged symptoms, but that her

statements concerning the intensity, persistence, and limiting effects of these

symptoms are not credible to the extent they are inconsistent with the ALJ’s

determination of Plaintiff’s residual functional capacity assessment. 

In Hand v. Heckler, 761 F.2d 1545, 1549 (11th Cir. 1986), the Eleventh Circuit

adopted the following pain standard:

There must be evidence of an underlying medical condition and (1) there

must be objective medical evidence to confirm the severity of the alleged

pain arising from the condition or (2) the objectively determined medical

condition must be of a severity which can reasonably be expected to give

rise to the alleged pain.

If the Commissioner rejects a claimant's allegations of pain, he must articulate explicit

and adequate reasons, and these reasons must be based on substantial evidence. 

Hale v. Bowen, 831 F.2d 1007, 1012 (11th Cir. 1987). A clearly articulated credibility

finding with substantial supporting evidence in the record should not be disturbed by a

reviewing court. Foote v. Chater, 67 F.3d 1553, 1562 (11 Cir. 1995); MacGregor v.

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Bowen, 786 F.2d 1050, 1054 (11 Cir. 1986). th

The ALJ reviewed the evidence in the record and determined that it did not fully

support Plaintiff’s subjective complaints. The ALJ noted that Plaintiff’s subjective

complaints were inconsistent with her own prior statements as well as the record as a

whole. As the ALJ pointed out, though Plaintiff testified that she could not work, she

also testified that she played a computer game for several hours a day. Plaintiff also

testified that even when taking her medication—which the Plaintiff consistently reported

to mental health providers was effective in managing her bipolar disorder–she had

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problems dealing with people. However, Plaintiff also testified that she worked as a

cashier while taking no medication. (R. 308.)

The ALJ’s determination that Plaintiff’s subjective complaints were not credible is

further supported by Plaintiff’s testimony regarding her activities of daily living. Plaintiff

testified that she enjoyed visiting with friends and shopping, activities not consistent

with a severe inability to get along with others. In addition, although she testified that

she had daily, severe pain and could only walk a few blocks without pain, Plaintiff

testified that she walked to a grocery store four blocks away to go shopping and did not

require assistance shopping. A plaintiff’s daily activities may be considered in

assessing pain. Harwell v. Heckler, 735 F.2d 1292, 1293 (11 Cir. 1984). Despite th

Plaintiff’s portrayal of her pain as daily and severe, there is no evidence in the record

that she received treatment for pain and only occasionally took over the counter

medication for pain. See id. 

Another inconsistency between Plaintiff’s testimony and the record is her

representation that she had been compliant with taking her medication; yet medical

records show persistent problems of noncompliance with taking medications and

following advice regarding lifestyle changes, resulting in uncontrolled diabetes and

hypertension. 

Finally, to the extent Plaintiff contends that her primary barrier to finding

employment is her inability to get along with others, there is no indication that Plaintiff

had any issues with the numerous healthcare providers she interacted with over the

years. The medical evidence indicates that Plaintiff behaved appropriately and was

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often described as “pleasant” and “cooperative” by her providers.

The Court concludes that the ALJ’s rejection of Plaintiff’s subjective complaints

of pain was supported by substantial evidence and that the ALJ articulated specific

reasons for his credibility finding. 

B. The ALJ’s RFC is supported by substantial evidence

The ALJ determined that Plaintiff retained the RFC to perform light work as

defined in 20 C.F.R. § § 404.1567(b) and 416.967(b) (lifting no more than 20 pounds at

a time and 10 pounds frequently) with the following specifications: she should avoid

moderate exposure to fumes, odors, and dust; she can only perform simple, routine,

repetitive tasks; and she can only occasionally interact with the public. (R. 304-05.) 

The ALJ assigned great weight to the opinions of Dr. Vergara and Dr. Zelenka. 

Dr. Vergara, a state agency reviewing psychiatrist, opined that Plaintiff had moderate

limitations in carrying out detailed instructions, maintaining concentration, completing a

normal workday without interruptions from psychological symptoms, and goal setting. 

He also noted that “taking into consideration all information in the file, including current

ADL, she appears to be capable of doing simple, repetitive type tasks and assignments. 

(R. 217-234.) Dr. Zelenka, a state agency psychologist, opined that Plaintiff had

moderate limitations in the following areas: understanding and remembering detailed

instructions; carrying out detailed instructions; maintaining attention and concentration

for extended periods; working in coordination with or proximity to others without being

distracted by them; completing a normal workday without interruptions from

psychologically based symptoms and performing at a consistent pace without an

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unreasonable number and length of rest periods; interacting appropriately with the

general public; and setting realistic goals or making plan independently of others. (R.

243-260.)

The ALJ also assigned great weight to two of Plaintiff’s providers at

Meridian–psychiatrist Dr. Walker and nurse practitioner Stowell. Both opined that

Plaintiff was making good progress, was compliant in taking her medications, and that

her symptoms were managed by medication with no reported side effects. Dr.

Nazario’s clinical evaluation of Plaintiff–wherein he opined that she appeared to be able

to concentrate and understand and follow directions–was assigned some weight by the

ALJ. The ALJ assigned partial weight to the opinion of Dr. Abeles, noting that her

opinion that Plaintiff’s personality disorder traits might cause difficulties in maintaining

employment was not consistent with the medical evidence of record.

The Court notes that state agency physician Dr. Alvarez-Mullin opined that

Plaintiff had mild difficulties in activities of daily living, maintaining social functioning,

and maintaining concentration, persistence, or pace. (R. 74-753.) 

With regard to Plaintiff’s exertional limitations, the ALJ noted that although two

state agency physicians–Dr. Puestow and Dr. Rees–had opined that Plaintiff could work

at the medium exertional level, their opinions were given little weight because the

record showed that Plaintiff’s exertional abilities were more restricted.

The ALJ adequately considered the combined effects of Plaintiff’s mental and

physical impairments in determining her RFC. The Court concludes that the ALJ’s

assessment of Plaintiff’s residual functional capacity is supported by substantial

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evidence.

C. The ALJ’s finding that Plaintiff could perform past relevant work is supported

by substantial evidence

After determining Plaintiff’s RFC in light of her limitations, medical evidence, and

her credibility, the ALJ included these limitations in a hypothetical question to a VE.

The VE confirmed that Plaintiff could perform her past relevant work as a housekeeper

or cleaner. The ALJ specifically addressed Plaintiff’s social limitations and limits on

exposure to fumes, odors, and dust. The VE testified that Plaintiff’s limitations did not

preclude her from performing past relevant work. For the reasons discussed above, the

ALJ’s RFC as included in the hypothetical is supported by substantial evidence. 

Accordingly, the ALJ did not err in finding that Plaintiff was not disabled because his

determination at step four that Plaintiff could perform past relevant work is supported by

substantial evidence. 

VII. RECOMMENDATION

In view of the foregoing, it is respectfully RECOMMENDED that the decision of

the Commissioner should be AFFIRMED. 

IN CHAMBERS in Gainesville, Florida, on the 9 day of January 2012. th

s/ Gary R. Jones

GARY R. JONES

United States Magistrate Judge

NOTICE TO THE PARTIES

Pursuant to Fed. R. Civ. P. 72(b)(2), a party may file specific, written objections to

the proposed findings and recommendations within 14 days after being served with a

copy of this report and recommendation. A party may respond to another party’s

objections within 14 days after being served with a copy thereof. Failure to file specific

objections limits the scope of review of proposed factual findings and

recommendations.

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