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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

RHONDA DUBLAK,

Plaintiff, 

v. Case No. 5:10cv14/RH/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 disability insurance benefits and supplemental security

income (“SSI”) benefits under Titles II and XVI of the Act, 42 U.S.C. §§ 1381-83.

Upon review ofthe 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 March 10, 2006, plaintiff, Rhonda Dublak, protectively filed applications

for disability insurance benefits and SSI benefits, alleging disability beginning

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August 1, 2005. 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 through the date of the decision. On

December 8, 2009, the Appeals Council denied plaintiff’s request for review. 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.

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 activitysince August 1, 2005,

the date she alleges she became disabled.

2) Plaintiff has the following severe impairments: history of right rotator cuff

injury with repair, bilateral carpal tunnel syndrome, hemangioma of liver, history of

asthma, and lumbar spondylosis.

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.

4) Plaintiff has the residual functional capacity to lift and carry ten pounds

occasionally and frequently with the dominant right upper extremity; lift and carry

20 pounds occasionally and ten poundsfrequently with the left upper extremity; stand

and walk six hours in an eight-hour workday and sit up to six hours; climb, balance,

stoop, kneel, crouch, and crawl occasionally; frequently perform right and left fine

and gross manipulation; reach overhead occasionally with the right upper extremity. 

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Plaintiff cannot be exposed to heights or hazards, and cannot withstand concentrated

exposure to pulmonary irritants or vibration.

5) Plaintiff is able to perform her past relevant work as an office manager,

administrative clerk, and motel desk clerk. This work does not require the

performance of work-related activities precluded by plaintiff’s residual functional

capacity. Plaintiff, therefore, has not been under a disability, as defined in the Social

Security Act, since August 1, 2005.

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

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

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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.

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

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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.

FACT BACKGROUND AND MEDICAL HISTORY

Plaintiff was born on November 4, 1962, making her 42 years old at the alleged

onset date. Plaintiff has an eleventh grade education, but has not obtained a GED. 

(Doc. 17-2, pp. 28-29, 31). She has past relevant work as an office manager,

administrative clerk, motel desk clerk, radio dispatcher, and assembler. (Doc. 17-2,

pp. 32-48). In her last employment, shortly before she filed the application for

benefits, plaintiff was office manager for The Carpet Center in Nevada. She did

payroll, had supervisory responsibility for a number of other employees, and was

proficient with Excel and QuickBooks. Plaintiff described the job as “sit-down” with

occasional lifting of ten pounds or less. (Doc. 17-2, p. 34). 

On September 13, 2005, plaintiff saw Dr. M. Dean Smith, D.O., complaining

of migraine headaches, neck stiffness, right shoulder pain, and sleeping problems. 

She also told the doctor she had fibromyalgia. Dr. Smith, noting muscle spasms and

tenderness, referred plaintiff for physical therapy and to a neurologist, and prescribed

Lortab, a pain medication. (Doc. 17-9, p. 559). Plaintiff returned to Dr. Smith’s

office on October 18, 2005, reporting that she had seen a neurologist, who believed

she had a rotator cuff problem. Dr. Smith, noting that plaintiff had reduced range of

motion in the right shoulder and inability to reach her hand to her head, referred

plaintiff to an orthopedist and requested an x-ray of the troublesome shoulder. (Doc.

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17-9, p. 556). The x-ray of plaintiff’s right shoulder showed no evidence of fracture

or dislocation and was generally “unremarkable.” (Doc. 17-7, p. 301).

On March 8, 2006, plaintiff followed up with Dr. Smith regarding her

fibromyalgia. Dr. Smith observed significant trigger point spasms in plaintiff’s right

upper trapezius and supraspinatus muscles, as well as a tremor in plaintiff’s right arm

and hand. In light of these symptoms, Dr. Smith referred plaintiff to a neurologist. 

(Doc. 17-9, p. 543) Plaintiff returned to Dr. Smith’s office two days later, at which

time the doctor noted weakness, tenderness, and spasms in plaintiff’s right arm. On

that March 10 visit, plaintiff asked Dr. Smith if she could get disability for her “right

arm pain and weakness and spasms.” (Doc. 17-9, p. 593). Dr. Smith requested an

MRI of plaintiff’s cervical spine and again referred plaintiff to a neurologist. (Doc.

17-9, p. 541). Again the MRI returned “unremarkable.” (Doc. 17-7, p. 289).

When plaintiff returned to see Dr. Smith on August 8, 2006, she reported that

she had been seen by Dr. John Freeman, D.O., who told plaintiff she suffered from

carpal tunnel syndrome, placed her in splints, and recommended that she visit a hand

surgeon. (Doc. 17-9, p. 529). Dr. Smith assessed her condition as allergies, carpal

tunnel syndrom, and neck pain. (Doc. 17-9, p. 581). Plaintiff complained of left hip

pain when she next saw Dr. Smith on September 18, 2006, stating that her hip had

bothered her “for a long time.” Dr. Smith noted reduced range of motion in the hip

joint and that plaintiff sometimes walked with a limp. Dr. Smith assessed hip strain

and recommended physical therapy and, after a subsequent visit, trigger point

injections. (Doc. 17-9, pp. 521, 525). 

Plaintiff saw another doctor, Dr. Salvatore G. LaCognata, for shoulder pain. 

Dr. LaCognata examined plaintiff on December 8, 2005, for complaints of right

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shoulder pain, noting tender points in the trapezius, biceps, and triceps, in addition

to weakness and reduced range of motion in the right shoulder. (Doc. 17-9, p. 569). 

A January 2006 MRI of the shoulder showed, inter alia, a tear of the supraspinatus

tendon and a posterior paralabral cyst. (Doc. 17-7, p. 299). On February 1, 2006, Dr.

LaCognata performed a repair on plaintiff’s right rotator cuff at Arizona Orthopedic

Hospital. (Doc. 17-9, pp. 570-71). Plaintiff returned to Dr. LaCognata’s office

several times in the following months, including on September 7, 2006, when she

complained of rightshoulder, neck, and thoracic back pain. Dr. LaCognata observed

spasms in the muscles of the neck and trapezius. (Doc. 17-9, pp. 564-66).

Dr. Ashok Narayan, a neurologist, examined plaintiff on October 10, 2005,

when plaintiff complained of headaches, rightshoulder pain, and neck pain. Plaintiff

reported that she had been in two motor vehicle accidents (one in February 2004 and

the other in June 2005) and that she experienced headaches at least twice per month

that caused her to see bright-colored lights. Dr. Narayan noted that plaintiff’s neck

movements were restricted and painful. Following a cortisone injection in her right

shoulder in December 2005, plaintiff again saw Dr. Narayan and reported hand

tremors. Dr. Narayan started plaintiff on Neurontin, which he prescribed for relief

of postural tremors. (Doc. 17-8, pp. 431-35). Dr. Narayan’s assessments over his

treatment period focused upon headaches and the right rotator cuff syndrome,

ultimately repaired by Dr. LaCognata. 

Dr. Freeman, a specialist in physical medicine, saw plaintiff for the first time

on July 3, 2006, on referral from Dr. Smith, when plaintiff presented with neck and

shoulder pain, tremors, and weakness in the right upper extremity. Dr. Freeman

recommended that plaintiff return after undergoing an EMG and nerve conduction

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study. (Doc. 17-7, pp. 320-21). The results of that procedure, which was done to

evaluate the patient for radiculopathy, plexopathy, and peripheral neuropathy,showed

that plaintiff suffers from carpal tunnel syndrome bilaterally. (Doc. 17-7, pp. 315-

18). 

Having moved from Arizona to Florida, plaintiff came under the care of Dr.

Mark Akerson on December 12, 2006. Upon examination, Dr. Akerson noted mild

lumbar discomfort with some spasms. Dr. Akerson gave plaintiff a prescription for

Flexeril, a muscle relaxant, and increased plaintiff’s dosage of Lortab from 5 mg to

7.5 mg. (Doc. 17-8, pp. 504-05). Plaintiff returned to see Dr. Akerson in January

2007, citing pain across her neck and shoulders, asthma attacks, and right leg

numbness. Dr. Akerson observed sacroiliac joint bursitis, spinalspasms, and limited

range of motion. In consequence, Dr. Akerson administered to plaintiff a cortisone

injection to the sacroiliac joint and the right hip. (Doc. 17-8, p. 507). Thereafter,

plaintiff continued to receive injections from Dr. Akerson for her lower back and hip

pain. (Doc. 17-8, pp. 501, 511-12). In September 2007, Dr. Akerson ordered an MRI

of plaintiff’s lumbar spine, which showed mild to moderate protrusion at L4-5 and

L5-S1, possible nerve root compression, and lumbar spondylosis. (Doc. 17-8, pp.

429-30). 

At the request of the state (Arizona) agency, plaintiff attended physical and

psychological evaluations conducted by Drs. Wayne Broky and David Young,

respectively. Dr. Broky examined plaintiff on September 5, 2006, at which time

plaintiff reported pain in her neck and right shoulder, tremors in her right hand, and

bilateral carpal tunnel syndrome. Plaintiff alleged that the pain originated from a

February 2004 motor vehicle accident. Plaintiff also complained of neck and

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shoulder spasms, tingling and numbness in the scapular region, and weakness in her

hands. Dr. Broky observed decreased motion in plaintiff’s right shoulder and in the

cervical spine, as well the tremor plaintiff described in her right hand. (Doc. 17-7,

pp. 328-35). 

Dr. Young saw plaintiff for a psychological evaluation, during which plaintiff

complained of feelings of depression and anxiety. Plaintiff also reported having

nightmares, but Dr. Young observed only moderate limitations in plaintiff’s ability

to interact with the general public, accept instructions, and respond appropriately to

criticism from supervisors. (Doc. 17-8, pp. 373-74). Noting that plaintiff attempted

suicide at the age of 16, Dr. Young ultimately diagnosed mild anxiety disorder and

major depression, single episode. As of the time of the evaluation, Dr. Young

characterized plaintiff’s condition as “mild symptoms of depression and anxiety.” 

(Doc. 17-8, p. 376).

Represented by counsel, plaintiff testified at the July 15, 2008, hearing that her

most severe pain is in her hips, low back, neck, and hands. (Doc. 17-2, pp. 60-66). 

Plaintiff explained that her hands “fall asleep” or go numb when she engages in

routine activities like driving or reading a book. (Doc. 17-2, pp. 49, 74, 76). Plaintiff

reported thatshe had been taking Lortab for pain since 2004 and that her fibromyalgia

causes general soreness. (Doc. 17-2, pp. 52-57). Regarding her physical limitations,

plaintiff asserted that she can sit for 30 minutes before having to stand, but can stand

only for 30-45 minutes at a time. Plaintiff alleged that she can walk for about 30

minutes and can on occasion lift/carry a half gallon of milk. (Doc. 17-2, pp. 66-67). 

According to plaintiff, she does the dishes and laundry, makes her bed, feeds her pet

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cats, sweeps the floors, and cooks and grocery shops to a limited degree. (Doc. 17-2,

pp. 68-69).

After plaintiff testified, the ALJ reviewed with the vocational expert, Robert

Bradley, plaintiff’s employment history for 15 years before her disability application. 

The ALJ then posed two hypothetical questions to the vocational expert. First, the

ALJ asked if Mr. Bradley could identify any of plaintiff’s past occupations in which

a person with the same age, education, and physical limitations as plaintiff could

engage. The ALJ modified the second hypothetical, adding the caveat that the person

would need to alternate between sitting and standing every 15-30 minutes. (Doc. 17-

1

1

 Given plaintiff’s contention with the hypotheticals, I have set out verbatim

the questions utilized by the ALJ:

Q I want you to assume we have a hypothetical individual with the

same age and education as the Claimant which is eleven years and

almost a GED, one point away, right?

A Yes.

Q And such a person would have a similar vocational background as

what you've testified to, any work activity this person would be able to

do besides the following conditions and limitations. For the upper

extremities, as far as lifting goes, on the right hand side, she could lift

ten pounds with her left upper extremity lift twenty on an occasional

basis. And in addition with both extremities she could lift ten pounds

on a frequent basis. This person is right hand dominant. In addition, the

person could engage in occasional postural maneuvers, climb, balance,

stoop, kneel, crouch and crawl. The person should not be exposed to

heights or hazards at all. No continuous exposure to pulmonary irritants

or vibration. Occasional overhead reaching with the right upper

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2, pp. 81-82). Bradley responded that a person operating under the limitations

described in the first hypothetical could perform all past work except dispatcher and

assembler. Such a person could work as a motel clerk with the sit/stand option. 

(Doc. 17-2, p. 83). Bradley testified that a person missing 1-1 1⁄2 hours of work per

day after using all accrued leave time could not be competitively employed in the

national economy. Bradley ventured the same assessment for a person who for any

reason had to miss 3-4 days of work per month after using accrued leave time. 

Finally, Bradley opined that a lack of fine dexterity or inability to grasp would not

preclude work. (Doc. 17-2, pp. 82-87).

DISCUSSION

Plaintiff argues first that the ALJ failed to pose a complete hypothetical

question to the vocational expert, making his testimony unsubstantial evidence. 

Specifically, plaintiff cites the ALJ’s failure to delineate how long the hypothetical

person can sit, stand, or walk. At the administrative hearing, plaintiff posed no 2

extremity, frequent gross and fine manipulation on the right and left and

this person isright hand dominant. The second hypothetical isidentical

to the first other than this person could need a sit/stand option

alternating every 30 minutes, 15 to 30 minutes. Okay?

 Plaintiff’s entire argument on this point reads as follows: 2

When the ALJ posed the hypothetical questions to the Vocational

Expert, Robert Bradley, he failed to mention anything about how long

the person could sit, stand or walk. (Tr. 82). He added a sit/stand

option to the second hypothetical question but still didn’t mention

anything about limitations on walking. (Id.). In the ALJ’s decision he

states that Ms. Dublak can, “stand and walk 6 hours in an 8-hour

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objection to either of the hypotheticals used by the ALJ. Plaintiff is correct that the

ALJ did not expressly identify plaintiff’s sitting and standing limitations when posing

the aforesaid hypotheticals to Bradley, the vocational expert. Under some

circumstances, such an omission might prove fatal to the legal substantiality of

Bradley’s testimony. See Russell v. Astrue, 331 F. App’x 678, 683 n.4 (11th Cir.

2009) (“We note that for vocational expert testimony to constitute substantial

evidence, the ALJ must pose a hypothetical question which includes all of the

claimant’s impairments.”). Here, however, Bradley by implication accounted for

plaintiff’s sitting and standing limitations, which are consistent with the requirements

of the sort of “light work” for which Bradley assessed her. See Hutchison v. Bowen,

787 F.2d 1461 (11th Cir. (1986) (finding substantial evidence to support ALJ’s

finding that disability claimant was capable of performing full range of light work,

workday and sit up to 6 hours.” (Tr. 18). Further, the ALJ did not

consider the effects of Ms. Dublak’s fibromyalgia when posing his

hypothetical questions to the VE. According to the Arthritis

Foundation, fibromyalgia causes pain, tenderness, fatigue, sleep

disturbance, frequent headaches, and cognitive difficulties (poor

attention span, short-term memory problems, and inability to think

clearly). See “Fibromyalgia-What are the effects?”Arthritis Foundation.

2 0 1 0 . W e b . 1 9 N o v . 2 0 1 0 .

http://www.arthritis.org/diseasecenter.php?disease_id=10&df=effects.

Applicable Law. In Grimes v. Barnhart the court held that for

vocational expert testimony to be substantial, it must be based on

complete hypotheticals. See Grimes v. Barnhart, Case No. 04-G-3065-

S, 2006 WL 1075253 (N.D. Ala. Apr. 6, 2006).

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where claimant could stand for 30 minutes and could sit, stand, and walk for period

of at least four hours).

As a general rule, moreover, the ALJ need not rely solely upon vocational

expert testimony in determining whether a claimant can perform past relevant work. 

See Russell, 331 F. App’x at 683 n.3 (11th Cir. 2009) (“Generally, the testimony of

a vocational expert is not necessary to determine whether a claimant can perform her

past relevant work.”). “The claimant is the primary source for vocational

documentation, and statements by the claimant regarding past work are generally

sufficient for determining the skill level; exertional demands and nonexertional

demands of such work.” SSR 82-62, 1982 WL 31386, at *3 (1982). “The testimony

of a vocational expert is necessary, however, if the record is inconclusive as to the

claimant’s residual functional capacity.” Russell, 331 F. App’x at 683 n.3. 

The ALJ in this matter devoted considerable attention in his questioning of

plaintiff toward documenting the skill level, exertional, and non-exertional demands

required by plaintiff’s past relevant work. (Doc. 17-2, pp. 32-48). Having reviewed

the administrative hearing transcript and documentary evidence, the undersigned

finds that the record is determinative of plaintiff’s residual functional capacity. 

Accordingly, any error in the ALJ’s reliance on Bradley’s testimony was harmless.

On the same point, plaintiff further contends the ALJ erred by not considering

the effects of fibromyalgia when posing hypothetical questions to the vocational

expert. Again, plaintiff concludes that the ALJ constructed incomplete hypotheticals

and therefore could not properly rely on the resulting answersin determining whether

plaintiff could perform her past relevant work. Despite advancing this contention,

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plaintiff has not provided, or even suggested, the additional information concerning

her fibromyalgia, as opposed to some generalized characterization of that condition,

that the ALJ should have included.

Fibromyalgia is a diagnosis of exclusion. See Somogy v. Comm’r of Soc. Sec.,

366 F. App’x 56, 63 (11th Cir. 2010) (“[F]ibromyalgia ‘often lacks medical or

laboratory signs, and is generally diagnosed mostly on an individual’s described

symptoms,’ and . . . the ‘hallmark’ of fibromyalgia is therefore ‘a lack of objective

evidence.’” (quoting Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005) (per

curiam))). In other words, fibromyalgia is a syndrome, complex, condition, or disease

defined by its symptoms.

In reaching a conclusion as to plaintiff’s residual functional capacity, the ALJ

expressly considered those symptoms presented by plaintiff and generally associated

with fibromyalgia:

Upon questioning by the Administrative Law Judge, the

claimant’s testimony revealed the following: She has pain in her low

back and hips and she cannot sit down. Her hands go numb. She gets

tired from her medication and feels like she is in a fog. She gets sore all

over and sometimes in her neck and shoulders. She gets occasional

migraines. If she turns her head wrong she hurts everyday. She wears

braces on her hands. She has arthritis. She has depression . . . .

(Doc. 17-2, p. 19). The finding as to plaintiff’s residual functional capacity, which

formed the basis ofthe ALJ’s hypothetical questions, wastherefore properly informed

by the pain and complications experienced by plaintiff and associated with

fibromyalgia. Mere insertion of the term “fibromyalgia” would have lent little or

nothing to the ALJ’s analysis. Significantly, for this review, the extensive medical

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record is virtually devoid of any reference to, or discussion of, fibromyalgia, other

than occasional mention by plaintiff herself in her various medical histories. In a

light most favorable to plaintiff, the medical records do not provide data or

information helpful in assessing the effect of her fibromyalgia. For this reason, the

undersigned finds no deficiency in the questions posed to the vocational expert,

whose answers the ALJ could have relied upon as substantial evidence.

Plaintiff contends next that the ALJ erred by failing to adhere to the applicable

pain standard when considering her subjective complaints of pain and the effects of

that pain on plaintiff’s ability to work. Plaintiff notes her history of “constant pain”

and suggests that the ALJ failed to articulate his reasons for discounting plaintiff’s

subjective testimony. As a result, plaintiff argues, that testimony must be accepted

as true. See Cannon v. Bowen, 858 F.2d 1541, 1545 (11th Cir. 1988) (“Failure to 3

 Plaintiff’s entire argument on this point reads as follows: 3

Ms. Dublak suffers from fibromyalgia, bilateral carpal tunnel

syndrome, lumbar spondylosis, neck pain, right shoulder pain despite a

rotator cuff repair, headaches, and hip pain. (Tr. 267, 315, 429, 320,

564, 559, 506). An EMG/NCS done on July 12, 2006 revealed that Ms.

Dublak suffers from bilateral carpal tunnel syndrome. (Tr. 315- 318). 

An MRI of the lumbar spine done on September 27, 2007 showed

lumbar spondylosis and mild to moderate disc protrusions at L4-5 and

L5-S1. (Tr. 429, 430). The fact that Ms. Dublak has been on pain

medication since 2004 and has received injection after injection from

multiple doctors affirms that she is in constant pain.

Applicable Law. The Eleventh Circuit holds that 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)

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articulate the reasons for discrediting subjective pain testimony, mandates that the

testimony, as a matter of law, be accepted as true.”). 

“The Secretary must consider a claimant’s subjective testimony of pain if she

finds evidence of an underlying medical condition” (part one of the “three part pain

standard” previously enunciated in Holt v. Sullivan, 921 F. 2d 1221, 1223 (11th

Circuit 1991)), “and either (1) objective medical evidence to confirm the severity of

the alleged pain arising from that condition, or (2) that the objectively determined

medical condition is of a severity that can reasonably be expected to give rise to the

alleged pain.” Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995). “A claimant’s

subjective testimony supported by medical evidence that satisfies the pain standard

is itself sufficient to support a finding of disability.” Id. at 1561. Failure to cite or

refer to the language of the three-part test is not reversible error, however, where the

ALJ cites to 20 C.F.R. § 404.1529, “which contains the same language regarding the

subjective pain testimony that [the Eleventh Circuit] interpreted when initially

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. See Wilson v Barnhart, 284

F.3d 1219, 1225 (11th Cir. 2002).

Further,failure to articulate the reasons for discrediting subjective

testimony requires, as a matter of law, that the testimony be accepted as

true. See Cannon v. Bowen, 858 F.2d 1541, 1545 (11th Cir. 1988).

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establishing its three-part pain standard.” See Wilson v. Barnhart, 284 F.3d 1219,

1226 (11th Cir. 2002). 

Here, after considering plaintiff’s testimony in accordance with 20 C.F.R. §§

404.1529 and 416.929, the ALJ found reason to discredit plaintiff’s complaints of

subjective pain. For instance, plaintiff alleged thatshe experienced pain in her hands

24 hours per day, frequently dropped things, had difficultywriting, and could lift only

a half gallon of milk. (Doc. 17-2, pp. 64, 67, 75). In the face of such subjective

complaints, however, the ALJ noted a July 2006 nerve conduction study and

electromyogram produced no diagnostic evidence of radiculopathy. (Doc. 17-7, p.

315). Dr. Freeman, a treating physician, opined that plaintiff’s carpal tunnel

syndrome would not impose any lifting or carrying limitations. (Doc. 17-7, p. 324). 

A consultative examination in September 2006 with Dr. Broky revealed an “intention

tremor” when plaintiff extended her right hand, but no significant tremor with other

maneuvers. Tremors notwithstanding, plaintiff exhibited 27 pounds of grip in her

right hand and 24 pounds in her left during the examination. (Doc. 17-7, p. 300).

Plaintiff’s complaints of disabling back, neck, and hip limitations were

similarly contradicted by the medical evidence. An MRI of the cervical spine

performed in May 2006 showed no abnormalities. (Doc. 17-7, p. 289). Plaintiff

contended that regularly occurring back spasms allowed her to sit and walk only 30

minutes at a time, and stand approximately 45 minutes. (Doc. 17-2, pp. 66-67). From

an objective perspective, though, magnetic resonance imaging of the lumbar spine

in September 2007 showed only mild lumbar spondylosis and no evidence of

spondylolisthesis. (Doc. 17-8, pp. 429-30). Though plaintiff testified that her hip

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pain was the worst of her pain, an MRI scan of the left hip performed in September

2007 revealed no significant abnormality. (Doc. 17-8, pp. 429-30). In September

2006, Dr. Broky observed that plaintiff exhibited full cervical flexion, 80 degrees of

lumbar flexion, normal gait, tandem walking, lower extremity strength, and range of

motion in her hips. (Doc. 17-7, pp. 329-30). 

Thesemedicalfindings are consistent with the wide range of activities in which

plaintiff engages on a daily basis. By her own admission, plaintiff performs light

housework, prepares meals, doesthe dishes and laundry, feeds her cats, goes grocery

shopping, drives a car, reads, visits with friends, lifts weights, volunteers at the

Salvation Army, attends church and Bible school, pays bills, and cares for her

grandchildren. (Docs. 17-2, pp. 29-30, 68-70; 17-8, pp. 375-76). Such activities, as

the ALJ concluded, “auger against [plaintiff’s] allegations of incapacitating pain, or

significant fatigue and lack of alertness, and are consistent with the conclusion that

she can perform some work activities.” (Doc. 17-2, pp. 20-21). The ALJ, as here,

may consider daily activities. See Moore, 405 F.3d at 1212 (“[T]he ALJ here relied

on the inconsistencies between Moore’s descriptions of her diverse daily activities

and her claims of infirmity.”). Moreover, the ALJ “may discount subjective

complaints of pain if inconsistencies are apparent in the evidence as a whole.” See

Small v. Astrue, No. 3:08cv44/MCR/MD, 2009 WL 559517, at *13 (N.D. Fla. Mar.

4, 2009) (citing Moore, 405 F.3d at 1212). In short, the undersigned finds “that the

ALJ made a reasonable decision to reject [plaintiff’s] subjective testimony,

articulating, in detail, the contrary evidence as his reasons for doing so.” See Wilson

v. Barnhart, 284 F.3d 1219, 1226 (11th Cir. 2002). With regard to the pain issue, the

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undersigned, of course, is not charged with making independent fact conclusions, but

only with reviewing the substantiality of the evidence underlying the conclusions

reached by the ALJ. See Moore, 405 F.3d at 1211 (11th Cir. 2005).

As her third point, plaintiff alleges that the ALJ failed to consider her

fibromyalgia as a “severe” impairment and therefore failed to comply with the

Commissioner’s policies in evaluating the severity of that disease. Plaintiff cites the

ALJ’s omission of any reference to fibromyalgia in his decision as evidence that he

did not account for that impairment. As already explained, fibromyalgia is a

4

 Plaintiff’s entire argument on this point reads as follows: 4

Ms. Dublak has a long history of fibromyalgia as can be seen by

the fact that every new doctor she goes to notes that she has a history of

fibromyalgia. (Tr. 504, 559). The ALJ makes no mention of Ms.

Dublak’s fibromyalgia in his decision, he does not list it as a “severe”

impairment nor does he list it as a “non-severe” impairment. (Tr. 17). 

However, the ALJ listed depression and anxiety as “non-severe”

impairments. (Id.). The ALJ explained his rationale for considering

depression and anxiety as “non-severe” impairments due to the fact that

Ms. Dublak has no ongoing mental health treatment for these besides

being prescribed antidepressant medication by a general practioner [sic].

(Tr. 20).

Applicable Law. The Eleventh Circuit contends that

fibromyalgia, “if properly diagnosed” satisfies the pain standard. See

Reliford v. Barnhart, 444 F. Supp. 2d 1182, 1187 (N.D. Ala. 2006). In

Dutil v. Barnhart, 457 F. Supp. 2d 1321, 1327 (M.D. Fla. 2005) a

Florida court contended that the ALJ failed to properly evaluate all of

the claimant’s complaints of pain and diagnosis of fibromyalgia at step

two of the sequential evaluation process. The court noted that several

circuits have recognized that fibromyalgia is capable of causing severe,

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diagnosis of exclusion, identified by excluding other impairments that could cause

symptoms similar to those produced by or associated with fibromyalgia. In general,

courts have noted that symptoms associated with fibromyalgia include severe,

widespread musculoskeletal pain, stiffness, numbness, fatigue, sleep disturbances,

depression, and trigger points. See, e.g., Dutil v. Barnhart, 457 F. Supp. 2d 1321

(M.D. Fla. 2005).

In the instant matter, the ALJ took note of all plaintiff’s symptoms, including

numbness in the hands, fatigue and disorientation, general soreness in the neck and

shoulders, depression, and joint pain in the hip and shoulder, any or all of which may

have been caused by fibromyalgia. Having undertaken a thorough review of the

record evidence, the undersigned is unable to determine that any medical expert

identified fibromyalgia as the direct or sole cause of the foregoing symptoms. 

Because the ALJ considered the symptoms traditionally associated with fibromyalgia

(although not tied to that condition by the actual medical evidence in this case), the

undersigned cannot conclude that the ALJ failed to credit the existence or severity of

the impairment. The ALJ agreed, in fact, that plaintiff’s “medically determinable

disabling pain and that pursuant to the Eleventh Circuit’s pain standard[]

the claimant’s subjective complaints of pain must be considered. Id.

In Sum. The ALJ not only failed to consider Ms. Dublak’s

fibromyalgia a “severe” impairment, he did not mention it at all in his

decision. As held in Ashford v. Barnhart, 347 F. Supp. 2d 1189 (M.D.

Ala. 2004) an ALJ commits reversible error in failing to explain how

and why evidence failed to support a finding that an impairment is

severe or not, especially if that particular impairment is referenced by

multiple physicians.

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impairments could reasonably be expected to produce the alleged symptoms[.]” (Doc.

17-2, p. 19). The ALJ disagreed, however, with plaintiff’s allegations regarding the

“intensity, persistence and limiting effects of these symptoms,” which he found “not

credible to the extent they are inconsistent with the residual functional capacity

assessment . . . .” (Doc. 17-2, p. 19). As detailed above, this ultimate determination

is supported by substantial record evidence. See Carnes, 936 F.2d at 1218 (“[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.”).

The persuasiveness of plaintiff’s argument on this point is further diminished

by the ALJ’s finding of multiple severe impairments at step two of the sequential

evaluation process. Because step two requires only that the ALJ find at least one

severe impairment to proceed to the next evaluative step, any additional consideration

given to plaintiff’s fibromyalgia as a severe impairment, standing alone, would have

been superfluous in this instance. See 20 C.F.R. §§ 404.1520(a)(4)(ii),

416.920(a)(4)(ii); Heatly v. Comm’r of Soc. Sec., 382 F. App’x 823, 825 (11th Cir.

June 11, 2010) (“‘[T]he finding of any severe impairment . . . whether or not it results

from a single severe impairment or a combination of impairments that together

qualify as severe’ is enough to satisfy step two.”) (quoting Jamison v. Bowen, 814

F.2d 585, 588 (11th Cir. 1987)). Plaintiff responds that fibromyalgia, in conjunction

with her other impairments, so diminishes her residual functional capacity asto make

her incapable of performing her past work. Here, having reached the fifth step in the

sequential evaluation, the ALJ recorded and considered the symptoms of which

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plaintiff complains. (Doc 17-2, pp. 19-20). The undersigned cannot find that the

residual functional capacity calculus would have been materially altered by the mere

mention of fibromyalgia as a severe impairment where, as here, the ALJ has given at

least some credence to all of plaintiff’s complaints of disabling pain.

The decision of the Commissioner is supported by substantial evidence. The

decision is similarly in compliance with the proper legal standards. Accordingly, it

is respectfully RECOMMENDED:

The application for disability insurance benefits and supplemental security

income benefits be DENIED. 

At Pensacola, Florida, this 22nd day of June, 2011.

/s/Charles J. Kahn, Jr.

CHARLES J. KAHN, JR.

UNITEDSTATESMAGISTRATEJUDGE

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