IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

JESUSA GARCIA WRIGHT, :

Plaintiff, :

vs. : CA 14-00575-C

CAROLYN W. COLVIN, :

Acting Commissioner of Social Security,

 :

Defendant.

MEMORANDUM OPINION AND ORDER

Plaintiff brings this action, pursuant to 42 U.S.C. §§ 405(g), seeking judicial 

review of a final decision of the Commissioner of Social Security denying him claims for

period of disability and disability insurance benefits. The parties have consented to the 

exercise of jurisdiction by the Magistrate Judge, pursuant to 28 U.S.C. § 636(c), for all 

proceedings in this Court. (Docs. 17 & 19 (“In accordance with the provisions of 28 

U.S.C. 636(c) and Fed.R.Civ.P. 73, the parties in this case consent to have a United States 

Magistrate Judge conduct any and all proceedings in this case, . . . order the entry of a 

final judgment, and conduct all post-judgment proceedings.”)). Upon consideration of 

the administrative record, the Plaintiff’s brief, the Commissioner’s brief, and the 

arguments of counsel for the Parties at the October 29, 2015 hearing before the Court, it 

is determined that the Commissioner’s decision denying benefits should be affirmed.

1

 

 1 Any appeal taken from this memorandum opinion and order and 

judgment shall be made to the Eleventh Circuit Court of Appeals. (See Docs. 17 & 19

(“An appeal from a judgment entered by a Magistrate Judge shall be taken directly to 

the United States Court of Appeals for this judicial circuit in the same manner as an 

appeal from any other judgment of this district court.”)).

Case 1:14-cv-00575-C Document 20 Filed 04/15/16 Page 1 of 26
2

Plaintiff alleges disability due to mild degenerative disc disease, 

tembromandibular joint disease (“TMJ”), insomnia, anxiety, and depression. The 

Administrative Law Judge (“ALJ”) made the following relevant findings:

1. The claimant meets the insured status requirements of the Social 

Security Act through December 31, 2014.

2. The claimant has not engaged in substantial gainful activity since 

February 26, 2011, the alleged onset date (20 CFR 404.1571 et seq.).

3. The claimant has the following severe impairments: mild 

degenerative disc disease, tembromandibular joint disease (TMJ), 

insomnia, anxiety, and depression (20 CFR 404.120(c)).

These impairments have caused more than a minimal limitation in the 

claimant's ability to perform work activity.

4. The claimant does not have an impairment or combination of 

impairments that meets or medically equals the severity of one of the 

listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 

404.1520(d), 404.1525 and 404.1526).

* * *

5. After careful consideration of the entire record, the undersigned

finds that the claimant has the residual functional capacity to perform

medium work as defined in 20 CFR 404.1567(c) except the claimant

can frequently climb ramps or stairs; frequently climb ladders, ropes,

or scaffolds; frequently balance, stoop, crouch, and crawl. She must 

avoid concentrated exposure to work around unprotected machinery or

work around unprotected heights. The claimant can perform simple,

routine tasks with simple workplace decisions and few workplace

changes. The claimant can have occasional interaction with the public

or coworkers.

In making this finding, the undersigned has considered all symptoms and 

the extent to which these symptoms can reasonably be accepted as 

consistent with the objective medical evidence and other evidence based 

on the requirements of 20 CFR 404.1529 and SSRs 96-4p and 96-7p. The 

undersigned has also considered opinion evidence in accordance with the 

requirements of 20 CFR 404.1527 and SSRs 96-2p, 96-5p, 96-6p and 06-

3p.

In considering the claimant's symptoms, the undersigned must follow a

two-step process in which it must first be determined whether there is

an underlying medically determinable physical or mental impairment(s)-

Case 1:14-cv-00575-C Document 20 Filed 04/15/16 Page 2 of 26
3

-i.e., an impairment(s) that can be shown by medically acceptable 

clinical and laboratory diagnostic techniques--that could reasonably be

expected to produce the claimant's pain or other symptoms.

Second, once an underlying physical or mental impairment(s) that could

reasonably be expected to produce the claimant's pain or other

symptoms has been shown, the undersigned must evaluate the

intensity, persistence, and limiting effects of the claimant's symptoms to

determine the extent to which they limit the claimant's functioning. For

this purpose, whenever statements about the intensity, persistence, or

functionally limiting effects of pain or other symptoms are not 

substantiated by objective medical evidence, the undersigned must make

a finding on the credibility of the statements based on a consideration of

the entire case record.

The claimant alleges that she cannot work due to her anxiety, depression, 

insomnia, neck pain, back pain, and arthritis (Exhibit B2E). The claimant 

alleges that she cannot sleep at night and cannot be out in the public or 

even carry a conversation. She stated that she left her last job due to 

increased stress while working in a bank. She testified that she has panic 

attacks four to five times a week. She stated that these are associated with 

becoming nervous; however, she stated that she has never gone to the 

hospital due to a panic attack.

After careful consideration of the evidence, the undersigned finds that the 

claimant's medically determinable impairments could reasonably be 

expected to cause the alleged symptoms; however, the claimant's 

statements concerning the intensity, persistence and limiting effects of 

these symptoms are not entirely credible for the reasons explained in this 

decision.

In terms of the claimant's physical impairment, her alleged limitations are 

not supported by the evidence. She only established care with Lourdes 

Virtusio, M.D. in June 2012. However, the claimant was examined by 

Henrietta Kovacs, M.D. in July 2011. She complained of trouble with a 

headache and back ache. However, the MRI of the claimant's spine 

showed only a "normal variant" and "minimal spurring along the superior 

endplate of Ll. However, the claimant had no flank tenderness or 

abnormal findings on the lower extremities. She had no swelling or 

tenderness. Likewise, she was able to squat, walk on her heels, and walk 

on her toes. She had a normal gait. Likewise, she confirmed that the only 

problem arising from her TMJ was a recurrent headache. Dr. Kovacs 

observed that she had normal range of motion and considered her back 

impairment only mild (Exhibit B4F).

However, the claimant has sought treatment for her back pain but the 

Case 1:14-cv-00575-C Document 20 Filed 04/15/16 Page 3 of 26
4

degree of irregularity as well as the other evidence of the treatment itself 

fail to support the severity she alleges. Even most recently, the claimant’s 

treatment notes showed no motor weakness, abnormal gait, or abnormal 

neurological signs. The claimant’s only clinical sign was tenderness 

“across the lumbar area.” Furthermore, she had only two examinations

total in 2013 (Exhibit B16F). 

Even prior to that time, there was virtually no treatment for her back, and 

the only positive clinical finding remained this general tenderness across 

her lumbar spine area. She was never prescribed any ongoing narcotic 

mediations. More importantly than the minimal, limited evidence that is 

present, the treatment notes are virtually absence any recommendation for 

treatment other than the medications prescribed. There was no 

suggestion for any orthopedic referral by her current physician or any 

consideration to her complaint that she did not have the resources to see a 

specialist (Exhibit B14F). Likewise, the extensive absence of significant 

treatment or other clinical signs or diagnostic testing is far more consistent 

with the indication that she does not require specialist treatment. Her 

minimal back impairment was being treated adequately with the limited, 

conservative treatment she has obtained.

In December 2012, the last examination with Dr. Virtusio, the claimant did 

obtain one single psychiatric referral. However, He noted that she has 

pain everywhere as well, despite a normal gait. He stated that she did 

report having back pain at that time. However, his treatment notes also 

largely fail to indicate any problems with her back or other significant 

physical complaints. His treatment also consists of solely three 

examinations (Exhibit B13F). The claimant testified that she has Tricare, 

and, ultimately, there is no reason that she has sought so little treatment. 

Her limited follow-up over time and the conservative nature of her 

treatment only serves to refute her allegations of symptoms from any 

physical impairment to the degree that she has alleged.

Furthermore, the claimant was examined by William Crotwell, M.D. in 

January 2013. Despite this being nearly the most recent examination in 

the medical evidence, she confirmed that she had no surgery, no epidural 

injections, no nerve conduction studies, and no MRI scans. Dr. Crotwell 

described the claimant's treatment as conservative treatment with 

medications, which the treatment notes clearly have shown. However, Dr. 

Crotwell did perform x-rays of her cervical, thoracic and lumbar spine. 

However, he stated that there was no objective evidence of any reason for 

pain. He noted that she had no real treatment with a specialist or a 

neurosurgeon. Even during his examination, the claimant only reported 

pain with bending, twisting, or torqueing in the mid back. She reported 

that her neck and right arm pain was persistent all day. She reported that 

Case 1:14-cv-00575-C Document 20 Filed 04/15/16 Page 4 of 26
5

her lower back pain was persistent as a 9/10 all day. However, he 

immediately noted that the claimant was able to move and twist. She also 

denied any numbness or tingling despite the complaint that her lumbar 

pain extended down the right posterior thigh. He also noted that she got 

up and down from the examination table without any difficulty. He 

stated that she used no assistive device and reported cooking, cleaning, 

driving locally, and walking two to three blocks. She also was able to flex 

past ninety degrees while sitting and bending. She removed her socks 

with "no difficulty at all." He stated that she did only forward flex for 

approximately thirty or forty degrees, but he noted that this was a poor 

attempt based on the bending she had done already in the office. He 

stated that she had no spasms in the thoracic or lumbar area. He stated 

that her straight leg raising test was questionable on the left and suspect 

also on the right. He stated that she did this activity on her own without 

pain, but the testing appeared painful with even passive movements. He 

noted that she had no scoliosis or other deformity. Ultimately, he 

concluded that she would be able to carry out medium, light, or sedentary 

work. [H]e stated that she would definitely be able to work for an eight 

hour workday. He explicitly stated that he found no major orthopedic 

problems with the claimant at all. He completed a form that, based on the 

limitations, places the claimant at the very heavy exertional level. 

However, he stated that she can only frequently bend, squat, crawl, or 

climb (Exhibit B16F).

Still, the claimant reported that she has been prescribed a number of 

medications for pain, anxiety, and to sleep over time. She reported only 

dizziness and drowsiness as reported side effects of her medications in 

Exhibit 2E and she has not identified any other recurrent symptom 

according to the treatment notes. Although it is obvious that drowsiness 

is not a side effect of a medication taken to sleep, the risk of over-sedation 

is possible. Therefore, extensive consideration has been given to the side 

effects or direct effects of the claimant's medications in the claimant's 

overall limitations (Exhibit B2E). However, the effects of these complaints 

would be more than adequately accommodated with the limitations 

regarding work around unprotected machinery or work around 

unprotected heights.

Therefore, the claimant is given the benefit of the doubt that she cannot 

lift and carry heavy weight. She should lift and carry no more than 

twenty-five pounds frequently or fifty pounds occasionally due to her 

back impairment, despite its mild nature. Similarly, due to her physical 

complaints and the possible side effects of her medications that were 

reported, the claimant can only frequently climb ladders, ropes, or 

scaffolds, even ramps or stairs. She also must avoid concentrated

exposure to work around unprotected machinery or work around 

Case 1:14-cv-00575-C Document 20 Filed 04/15/16 Page 5 of 26
6

unprotected heights. Furthermore, due to her back impairment the 

claimant can no more than frequently crouch and crawl or even balance 

and stoop.

In terms of her mental impairments, the claimant's alleged limitations also 

are not fully supported by the evidence. Although the claimant reports 

difficulty with interpersonal interaction, she has also suggested some 

problems in concentration. Still, the claimant reported that she has no 

problems with her personal care. She even reported that she can prepare 

simple meals, clean, and do the laundry despite her limited assertions of 

any concentration problem. The claimant even confirmed that she does 

these activities without encouragement from others that she needs to do 

them. She stated that she does go outside daily. She stated that she can 

drive short distances in town. She stated that she even shops weekly for 

forty-five minutes to one hour at each time. Even if that were time spent 

with her husband in the store, her own interaction with others to 

undertake that activity is inconsistent with her allegations. She 

acknowledged that she even can pay bills and handle bank accounts. She 

stated that she can drop bills off at the post office that need to be mailed. 

Still, she claims that she has no interest in any conversation or activities

with others at all. On the other hand, she denied having any problems 

getting along with authority figures or ever being laid off for problems 

getting along with others. It is acknowledged that she may have 

experienced difficulty in her last banking job; however, she acknowledged 

herself that this was a high stress situation caused by a particular 

manager. She reported not handling stress well; nevertheless, she stated 

that changes to her routine are not a problem. She even reported that she 

visits others and talks on the phone or the computer to other people. She 

even confirmed that she attends church regularly. She ultimately stated 

that she only "sometimes cannot face people." Nonetheless, in that same 

answer, she suggests that she "cannot carry [on] a conversation" (Exhibit 

B4E, emphasis added). Nevertheless, the degree of her allegations is 

inconsistent with her reports that she shops because, while limited, she 

must interact in that situation. She also must interact, to some degree, 

even to drive.

With regard to concentration or memory complaints, the claimant even 

acknowledged that she can pay attention for fifteen to twenty minutes and 

follow either written or spoken instructions adequately. She even stated 

that she can remind herself to take medications appropriately by keeping 

a note pad. Most recently, following her examination of the claimant, Dr. 

LaCostay [sic] noted that she was inconsistent in her ability to perform 

simple one and two digit addition, subtraction, multiplication, and,

division problems without the use of paper and pencil while not being 

Case 1:14-cv-00575-C Document 20 Filed 04/15/16 Page 6 of 26
7

able to perform even serial threes. The claimant made numerous errors 

and took an excessive amount of time to respond. Still, she could count 

backward from 20 to one, spell the word "world." backward, and, name 

the months of the year in reverse order without error. Dr. LaConsay 

stated that the claimant can understand, carry out, and remember simple 

instructions. She stated only that tasks that are more complex in nature 

and that require multiple steps might be more challenging for her (Exhibit 

B15F).

Nevertheless, the most significant inconsistency with the claimant's 

complaints of debilitating panic attacks is that she has extensively failed to 

obtain any treatment with a mental health specialist. She confirmed 

repeatedly through the treatment notes and at the hearing that she has 

Tricare insurance. Even beyond that coverage, she confirmed that she 

obtains a military pension of some type that provides her $3800.00 a 

month. She could be excused for not obtaining extensive treatment; 

however, she has chosen to obtain no treatment with any specialist 

whatsoever, even from a free or reduced cost source. Beyond the issue of 

her unwillingness to obtain treatment, the infrequency and conservative 

nature of treatment even from her general practitioners, particularly 

regarding the issue of mental health, but also regarding all of her 

impairments, provides the claimant no support in the extent of her 

allegations. With regard to mental health, she has never required 

inpatient treatment, emergency treatment, specialist treatment, or even 

individual therapy. There is no evidence that she even sought out a 

counselor, community program, or church program of any type. The 

claimant has virtually no attempts to change medications or even 

suggestions that her medications are ineffective during treatment. A 

single indication during treatment that they "will do a psychiatric referral" 

in December 2012 has not occurred. In fact, she stopped even obtaining 

treatment from Dr. Virtusio following that recommendation (Exhibits

B13F, B14F, and B17F). The claimant testified that she has never been 

treated by a psychiatrist or psychologist.

The claimant testified that she only takes medications to treat her panic 

attacks. She testified that she stays in the bed at those times. However, 

she testified that she does not even perform housework for herself. She 

stated that her husband performs these duties. Although she reported this 

same caveat in Exhibit B4F, she ultimately still concluded that there were 

a large number of activities that she did perform herself that are 

inconsistent with her allegations that the panic attacks or depression are 

debilitating to the degree she suggests. 

The claimant did complain of “stress” during treatment for other 

Case 1:14-cv-00575-C Document 20 Filed 04/15/16 Page 7 of 26
8

complaints in May 2009. Nevertheless, at that time, she denied all anxiety, 

depression, and difficulty sleeping, specifically. She was provided a brief 

course of Lexapro. However, there was virtually no other treatment 

(Exhibit B1F). She was obtaining treatment for her physical complaints as 

well as routine testing for other conditions; however, she simply began to 

be prescribed Pristiq, which has never changed in dosage or frequency, 

and briefly amitriptyline, which as also never been adjusted with regard 

to frequency or amount taken. The claimant was advised only to take 

amitriptyline at night. Likewise, she has always taken extended release

Pristiq (Exhibits B13F, B14F, and B17F).

Most recently, during treatment with Dr. Ndolo, the review of symptoms 

indicates that she "denies mood, sleep, and ETOH problems" during her 

examinations in both February and April 2013. She clearly indicated her 

history of problems. Nonetheless, his examination report failed to even 

include any consideration of mental health problems except for her 

medical history. Moreover, those two examinations make up the entirety 

of her 2013 treatment (Exhibit B17F).

Even prior to that time, the claimant only began treatment at all with 

amitriptyline in December 2012. However, obviously, given the 

recommendation to take the medication at bedtime, it was also related to 

complaints of insomnia. Although the claimant was diagnosed with 

"depressive disorder other" at that time, there was no evidence of any 

clinical findings of depression in the examination report. She even still 

"denies mood, sleep and ETOH problems" according to that very 

examination report. Regardless of [t]his inconsistency, the claimant did 

state that she had "severe stress and depression" this time. She stated that 

her medications were not working. On the other hand, she never reported 

panic attacks, her nearly sole complaint at the hearing. Although the 2013 

treatment notes completely fail to provide the claimant any support, she 

did have some treatment in 2012. However, even at that point, it was still 

infrequent and exceptionally conservative. She had medication 

adjustments and changes for insomnia symptoms. However, there was no 

change for the treatment of her depression or anxiety (Exhibit Bl4F). In 

fact, at the hearing, she testified that she stays in bed all day. This is 

directly contradictory to the repeated complaints of insomnia during 

treatment. Even most recently, she was still taking at least one sleeping 

pill, if amitriptyline were to be attributed to only other conditions (Exhibit 

B17F).

Moreover, longitudinally, the treatment notes themselves document 

inconsistency in even the claimant's own reports. She had no interest in 

doing anything in December 2012 due to her mental impairments (Exhibit 

Bl3F). Then, after virtually no change in treatment, and almost no 

treatment at all for months, she reports fatigue, but also trouble falling 

asleep. There was no mention of depression or anxiety during that 

Case 1:14-cv-00575-C Document 20 Filed 04/15/16 Page 8 of 26
9

examination. The follow-up examination indicates that she is "not getting 

enough sleep." Now, she testified that she sleeps all day. Furthermore, 

Dr. Ndolo repeatedly documented that she was not complaining of mood 

or sleep problems in his review of symptoms. The claimant never 

reported "panic attacks" (Exhibits B14F and B17F). Now, the claimant 

testified that she has panic attacks several times a week that would 

prevent her from working. Even if these panic attacks included and 

accompanied general anxiety symptoms also, Dr. Ndolo's treatment notes 

are, at best, conservatively treating her condition, and, at worst for the 

claimant, documenting that this minimal degree of treatment is effective. 

There is only one single report that medications were not working, and 

that examination led him to add a medication (Exhibit 14F).

Given those conditions, Dr. Kravitz's endorsement of the state agency 

decision and the opinion by Dr. Koulianos that the claimant can 

understand, remember, and carry out short, simple instructions; have 

infrequent contact with the public; and have minimal changes in the work 

setting are the most consistent opinions with the entirety of the evidence 

(Exhibits B3F and B10F). Furthermore, more recently, Dr. LaConsay also 

stated that she can understand, carry out, and remember simple 

instructions. She also stated that the claimant . . . could be expected to 

respond appropriately to supervision, co-workers, and, work, pressures in 

a work setting (Exhibit B15F).

Therefore, despite her combination of impairments, the claimant can still 

perform simple, routine tasks with simple workplace decisions and few 

workplace changes. However, I give her full benefit of the doubt that she 

should have only occasional interaction with the public or coworkers. 

As for the opinion evidence, great weight must be given to the opinion 

evidence in Exhibit B1F reiterating the limitations documented on Exhibit 

B7F. These opinions are provided by an "acceptable medical source." 

Likewise, they are the largely consistent opinions with the remainder of

the evidence.

However, greatest weight is given to the opinion of William A Crotwell, 

M.D. His specialization in orthopedic medicine provides his opinion 

greatest weight. His opinions are extensively consistent with the medical 

evidence and the most consistent opinions regarding the specific function 

by function limitations. Moreover, his examination report and the 

findings provide his opinion vast support.

Great weight is given to the opinion of Dr. Kravitz and Dr. Koulianos. 

Their conclusions are the most consistent with the remainder of the 

evidence. Their specializations in mental health treatment provide their 

Case 1:14-cv-00575-C Document 20 Filed 04/15/16 Page 9 of 26
10

opinions added weight. Furthermore, they are largely consistent with the 

observations throughout the treatment notes regarding the limited nature 

of symptoms and the effectiveness of treatment over time.

However, I cannot give any significant weight to the opinion evidence 

expressed on the form in Exhibit 15F. It is not consistent with the 

narrative examination report, the GAF score of 55 she provides, or the 

notation that the claimant is noncompliant with large portions of the 

examination. These conclusions are even directly inconsistent with the 

claimant's own self­ reports in Exhibit B4E or the moderate, limited nature 

of the treatment advised or obtained through Dr. Ndolo or any other 

source. I also note that the claimant denied having taken any medications 

the day of Dr. LaConsay's examination. I give far greater weight to Dr. 

LaConsay's narrative opinion and the GAF of 55.

I also give no weight to the opinion expressed on the form in Exhibit B12F. 

Although this is completed by Dr. Ndolo, a treating physician, he is not a 

mental health specialist. His responses on this form are inconsistent with 

any of his treatment notes. Likewise, his failure to ever have referred the 

claimant to a specialist or even significantly change his limited treatment

of the claimant is inconsistent with the degree of limitations arising from 

her mental impairment that he or the claimant have alleged. The 

infrequency of Dr. Ndolo's treatment and the moderate nature of his 

treatment both provide his opinion in Exhibit B12F no significant weight.

In sum, the above residual functional capacity assessment is supported by 

the inconsistency of the claimant's symptoms over time, the effectiveness 

of medications suggested by their consistency over time, the observed 

willingness of her treating physician to change medication less than fully 

effective, the activities of daily living inconsistent with the claimant's 

allegations, the lack of consistency in the diagnostic testing or clinical 

signs evident over time, the narrative opinion of Dr. LaConsay, the 

opinion of Dr. Koulianos as reinforced by Dr. Kravitz, the opinion 

evidence in Exhibit B11F, and the opinion of Dr. Crotwell.

6. The claimant is unable to perform any past relevant work (20 

CFR 404.1565).

* * *

7. The claimant was born on December 24, 1956 and was 54 years 

old, which is defined as an individual closely approaching advanced 

age, on the alleged disability onset date. The claimant subsequently 

changed age category to advanced age (20 CFR 404.1563).

8. The claimant has at least a high school education and is able to 

Case 1:14-cv-00575-C Document 20 Filed 04/15/16 Page 10 of 26
11

communicate in English (20 CFR 404.1564).

9. Transferability of job skills is not material to the determination 

of disability because using the Medical-Vocational Rules as a 

framework supports a finding that the claimant is "not disabled," 

whether or· not the claimant has transferable job skills (See SSR 82-41 

and 20 CFR Part 404, Subpart P, Appendix 2).

10. Considering the claimant's age, education, work experience, and 

residual functional capacity, there are jobs that exist in significant 

numbers in the national economy that the claimant can perform (20 CFR 

404.1569 and 404.1569(a)).

In determining whether a successful adjustment to other work can be 

made, the undersigned must consider the claimant's residual functional 

capacity, age, education, and work experience in conjunction with the 

Medical-Vocational Guidelines, 20 CFR Part 1404, Subpart P. Appendix 2. 

If the claimant can perform all or substantially all of the exertional 

demands at a given level of exertion, the medical-vocational rules direct a 

conclusion of either "disabled" or "not disabled" depending upon the 

claimant's specific vocational profile (SSR 83-11). When the claimant 

cannot perform substantially all of the exertional demands of work at a 

given level of exertion and/or has nonexertional limitations, the medicalvocational rules are used as a framework for decisionmaking unless there 

is a rule that directs a conclusion of "disabled" without considering the 

additional exertional and/or nonexertional limitations (SSRs 83-12 and 

83-14). If the claimant has solely nonexertional limitations, section 204.00 

in the Medical-Vocational Guidelines provides a framework for 

decisionmaking (SSR 85-15).

If the claimant had the residual functional capacity to perform the full 

range of medium work, a finding of "not disabled" would be directed by 

Medical-Vocational Rule 203.22 and Rule 203.15. However, the claimant's 

ability to perform all or substantially all of the requirements of this level of 

work has been impeded by additional limitations. To determine the 

extent to which these limitations erode the unskilled medium 

occupational base, the Administrative Law Judge asked the vocational 

expert whether jobs exist in the national economy for an individual with 

the claimant's age, education, work experience, and residual functional

capacity. The vocational expert testified that given all of these factors the 

individual would be able to perform the requirements of representative

occupations such as packager, DOT Code 920.587-018; laundry aide, DOT 

Code 323.687-010; silver wrapper, DOT Code 318.687-018; and night 

cleaner, DOT Code 323.687-014. The vocational expert testified that there 

are approximately 4,000 jobs as a packager; 4,000 jobs as a laundry aide; 

Case 1:14-cv-00575-C Document 20 Filed 04/15/16 Page 11 of 26
12

1,200 jobs as a silver wrapper; and 3,700 jobs as a night cleaner in the state 

of Alabama. She testified that there are approximately 330,000 jobs as a 

packager; 400,000 jobs as a laundry aide; 107,000 jobs as a silver wrapper; 

and 293,000 jobs as a night cleaner in the national economy.

Pursuant to SSR 00-4p, the undersigned has determined that the 

vocational expert's testimony is consistent with the information contained 

in the Dictionary of Occupational Titles.

Based on the testimony of the vocational expert, the undersigned 

concludes that, considering the claimant's age, education, work 

experience, and residual functional capacity, the claimant is capable of 

making a successful adjustment to other work that exists in significant 

numbers in the national economy. A finding of "not disabled" is therefore 

appropriate under the framework of the above-cited rules.

11. The claimant has not been under a disability, as defined in the 

Social Security Act, from February 26, 2011, through the date of this 

decision (20 CFR 404.1520(g)).

(Tr. at 15 & 17-25 (emphasis in original)). The Appeals Council affirmed the ALJ’s 

decision (id. at 1-3), and, thus, the hearing decision became the final decision of the 

Commissioner of Social Security.

DISCUSSION

In all Social Security cases, an ALJ utilizes a five-step sequential evaluation when 

determining whether a claimant is disabled, which considers

(1) whether the claimant is engaged in substantial gainful activity; (2) if 

not, whether the claimant has a severe impairment; (3) if so, whether the 

severe impairment meets or equals an impairment in the Listing of 

Impairments in the regulations; (4) if not, whether the claimant has the 

[residual functional capacity (“RFC”)] to perform her past relevant work; 

and (5) if not, whether, in light of the claimant’s RFC, age, education and 

work experience, there are other jobs the claimant can perform.

Case 1:14-cv-00575-C Document 20 Filed 04/15/16 Page 12 of 26
13

Watkins v. Comm’r of Soc. Sec., 457 Fed. App’x 868, 870 (11th Cir. 2012)2 (per curiam) 

(citing 20 C.F.R. §§ 404.1520(a)(4), (c)-(f), 416.920(a)(4), (c)-(f); Phillips v. Barnhart, 357 

F.3d 1232, 1237 (11th Cir. 2004)) (footnote omitted). The claimant bears the burden, at 

the fourth step, of proving that he is unable to perform his previous work. Jones v. 

Bowen, 810 F.2d 1001 (11th Cir. 1986). In evaluating whether the claimant has met this 

burden, the examiner must consider the following four factors: (1) objective medical 

facts and clinical findings; (2) diagnoses of examining physicians; (3) evidence of pain; 

and (4) the claimant’s age, education and work history. Id. at 1005. Although “a 

claimant bears the burden of demonstrating an inability to return to his past relevant 

work, the [Commissioner of Social Security] has an obligation to develop a full and fair 

record.” Schnorr v. Bowen, 816 F.2d 578, 581 (11th Cir. 1987) (citations omitted). If a 

plaintiff proves that he cannot do her past relevant work, as here, it then becomes the 

Commissioner’s burden—at the fifth step—to prove that the plaintiff is capable—given 

his age, education, and work history—of engaging in another kind of substantial 

gainful employment that exists in the national economy. Phillips, 357 F.3d at 1237; Jones 

v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999), cert. denied, 529 U.S. 1089 (2000); Sryock v. 

Heckler, 764 F.2d 834, 836 (11th Cir. 1985). 

The task for the Magistrate Judge is to determine whether the Commissioner’s 

decision to deny claimant benefits, on the basis that he can perform those jobs identified 

by the vocational expert (“VE”) during the administrative hearing, is supported by 

substantial evidence. Substantial evidence is defined as more than a scintilla and means 

such relevant evidence as a reasonable mind might accept as adequate to support a 

 2 “Unpublished opinions are not considered binding precedent, but they 

may be cited as persuasive authority.” 11th Cir.R. 36-2.

Case 1:14-cv-00575-C Document 20 Filed 04/15/16 Page 13 of 26
14

conclusion. Richardson v. Perales, 402 U.S. 389 (1971). “In determining whether 

substantial evidence exists, we must view the record as a whole, taking into account 

evidence favorable as well as unfavorable to the [Commissioner’s] decision.” Chester v. 

Bowen, 792 F.2d 129, 131 (11th Cir. 1986).3 Courts are precluded, however, from 

“deciding the facts anew or re-weighing the evidence.” Davison v. Astrue, 370 Fed. 

App’x 995, 996 (11th Cir. 2010) (per curiam) (citing Dyer v. Barnhart, 395 F.3d 1206, 1210 

(11th Cir. 2005)). And, “’[e]ven if the evidence preponderates against the 

Commissioner’s findings, [a court] must affirm if the decision reached is supported by 

substantial evidence.’” Id. (quoting Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158-

59 (11th Cir. 2004)).

On appeal to this Court, the Plaintiff asserts three reasons why the 

Commissioner’s decision to deny her benefits is in error (i.e., not supported by 

substantial evidence): (1) the ALJ erred in giving greater weight to the opinions of nonexamining, record reviewing consultants than to the opinion of the consultative 

examiner, Dr. Kendra LaConsay, Psy.D.; (2) the ALJ erred in rejecting the opinions of 

Dr. Joseph Ndolo, M.D., the Plaintiff’s treating physician; and (3) the ALJ erred by 

identifying available jobs at the light, unskilled level for the Plaintiff as Grid Rules 

202.04 and 202.06 direct a finding of disabled if she is limited to light, unskilled work. 

The undersigned initially will address the first two arguments together and then 

consider the remaining issue of the ALJ’s identification of jobs existing in the national 

economy that the Plaintff can perform.

 3 This Court’s review of the Commissioner’s application of legal principles, 

however, is plenary. Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).

Case 1:14-cv-00575-C Document 20 Filed 04/15/16 Page 14 of 26
15

I. The ALJ’s Assessment of the Opinions of Dr. Ndolo and Dr. LaConsay

The Plaintiff contends that the ALJ erred in rejecting the opinions of Dr. Ndolo

provided in his mental RFC Questionnaire. On August 3, 2012, Dr. Ndolo completed 

said questionnaire, (Tr. at 289-90), indicating that the Plaintiff has a “marked” 

restriction of daily living; a “marked” degree of difficulty in maintain social 

functioning; “marked” deficiencies of concentration, persistence, or pace resulting in 

failure to complete tasks in a timely manner (in a work setting or elsewhere); a 

“marked” limitation in ability to respond to supervision and to co-workers in a work 

setting; and a “marked” limitation in ability to perform simple and repetitive tasks in a 

work setting. (Id. at 289). Dr. Ndolo also stated that the Plaintiff has three episodes or 

decomposition in work or work-like setting which cause her to withdraw from that 

situation or to experience exacerbation of signs and symptoms (which may include 

deterioration of adaptive behaviors). (Id.). 

As the Plaintiff's treating psychiatrist, Dr. Ndolo’s opinions “must be given 

substantial or considerable weight unless ‘good cause’ is shown to the 

contrary.” Gilabert v. Comm'r of Soc. Sec., 396 F. App’x 652, 655 (11th Cir. 2010) (per 

curiam) (quoting Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997)). Good cause is 

shown when the: “(1) treating physician's opinion was not bolstered by the evidence; (2) 

evidence supported a contrary finding; or (3) treating physician's opinion was 

conclusory or inconsistent with the doctor's own medical records.” Id.

(quoting Phillips, 357 F.3d at 1241). “Where the ALJ articulate[s] specific reasons for 

failing to give the opinion of a treating physician controlling weight, and those reasons 

are supported by substantial evidence, there is no reversible error.” Id. (quoting 

Moore v. Barnhart, 405 F.3d 1208, 1212 (11th Cir. 2005)).

Case 1:14-cv-00575-C Document 20 Filed 04/15/16 Page 15 of 26
16

Here, the ALJ gave Dr. Ndolo’s opinions set forth in his mental RFC 

Questionnaire “no weight,” stating:

I also give no weight to the opinion expressed on the form in Exhibit B12F. 

Although this is completed by Dr. Ndolo, a treating physician, he is not a 

mental health specialist. His responses on this form are inconsistent with 

any of his treatment notes. Likewise, his failure to ever have referred the 

claimant to a specialist or even significantly change his limited treatment 

of the claimant is inconsistent with the degree of limitations arising from 

her mental impairment that he or the claimant have alleged. The 

infrequency of Dr. Ndolo's treatment and the moderate nature of his 

treatment both provide his opinion in Exhibit B12F no significant weight.

(Tr. at 23). The undersigned construes the ALJ’s comments as an implicit (if not 

explicit) finding that Dr. Ndolo’s opinions were conclusory and inconsistent with the 

doctor’s own medical records, as well as not bolstered by other evidence of record. 

Upon review of the record, the Court finds that the ALJ has shown good cause 

by articulating specific reasons supported by substantial evidence for giving “no 

weight” to Dr. Ndolo’s opinion. As the ALJ stated, his conclusions in the mental RFC 

questionnaire are conclusory and inconsistent with his treatment notes. His treatment 

notes reflect 11 visits with the Plaintiff between March 6, 2012 and April 3, 2013. (Id. at 

313-41 & 356-63). While the treatment notes show that the Plaintiff periodically 

complained about sleeping issues, anxiety, and depression, none of the notes indicate 

that Dr. Ndolo, who is not a psychiatrist or a psychologist, performed any mental status 

examinations or otherwise evaluated her in an objective manner that would 

substantiate his impressions or opinions of her psychiatric limitations. (See id.). 

Further, Dr. Ndolo’s treatment of the Plaintiff regarding these alleged mental issues was 

infrequent and inconsistent, as well as conservative in light of the severity of the 

Plaintiff’s mental limitations indicated in his mental RFC questionnaire. As the ALJ 

carefully detailed in his decision, the treatment notes reflect that Dr. Ndolo irregularly

Case 1:14-cv-00575-C Document 20 Filed 04/15/16 Page 16 of 26
17

prescribed the Plaintiff medications for depression, anxiety, and insomnia and that 

when the medicine was prescribed, the dosage and frequency of such prescriptions 

largely remained unchanged. (See id. at 21-23, 313-41 & 356-63). In addition, despite the 

supposed severity of the Plaintiff’s limitations, Dr. Ndolo never referred the Plaintiff to 

a specialist or significantly altered his moderate treatment of the Plaintiff’s mental 

issues.4 Contrarily, however, Dr. Ndolo’s final three treatment notes, the final two of 

which make up the entirety of the Plaintiff’s 2013 treatment, reflect that the Plaintiff 

“denies mood, sleep, and ETOH problems.” (See id. at 330-32 & 356-63). Accordingly, 

the Court finds that the ALJ’s articulated reasons for giving no weight to the August 3, 

2012 mental RFC findings of Dr. Ndolo are supported by substantial evidence and, thus, 

the ALJ did not commit reversible error.

The undersigned now turns to the ALJ’s assessment of the opinions of Dr. 

LaConsay. The Plaintiff contends that the ALJ erred in giving greater weight to the 

opinions of Dr. Joanna Koulianos and Dr. Larry Kravitz, non-examining, recordreviewing consultants than to the opinion of the consultative examiner, Dr. LaConsay.

The law in the Eleventh Circuit is clear that while “’the opinion of an examining 

physician is generally entitled to more weight than the opinion of a non-examining 

physician, the ALJ is free to reject the opinion of any physician when the evidence 

supports a contrary conclusion’” and the ALJ articulates his reasoning for rejecting the 

 4 While the Plaintiff argues that Dr. Ndolo did not refer her to a specialist 

because her insurance did not cover psychological treatment, there is no evidence that 

she attempted to obtain mental treatment from a specialist, even from a free or reduced 

cost source. Further, Dr. Ndolo’s treatment records do not indicate that specialized 

treatment was recommended or necessary. However, even assuming the Plaintiff’s 

insurance argument is true, it does not explain the conservative and infrequent nature 

of Dr. Ndolo’s personal treatment of the Plaintiff’s mental issues. 

Case 1:14-cv-00575-C Document 20 Filed 04/15/16 Page 17 of 26
18

subject opinion. Sryock, 764 F.2d at 835 (quoting Oldham v. Schweiker, 660 F.2d 1078, 

1084 (5th Cir. Unit B 1981)).; see also Hickel v. Comm. of Soc. Sec., 539 F. App’x 980, 985-86 

(11th Cir. 2013) (unpublished). 

Here, the ALJ stated that he could not give “any significant weight” to Dr. 

LaConsay’s opinion in the Medical Source Statement of Ability to Do Work-Related 

Activities (Mental) form (the “MSS Form”) attached to her consultative psychological 

evaluation. (Tr. at 23). The ALJ provided several reasons for this determination, 

specifically, (1) her conclusions in the MSS Form are not consistent with her narrative 

examination report, the GAF score of 55 she provides, or the notation that the Plaintiff 

was noncompliant with large portions of the examination; (2) her conclusions in the 

MSS Form are directly inconsistent with the Plaintiff’s own statements in her function 

report and the moderate, limited nature of the treatment advised or obtained through 

Dr. Ndolo or any other source; and (3) the Plaintiff denied having taken any 

medications the day of Dr. LaConsay’s examination. (Id.). Instead, the ALJ gave greater 

weight to Dr. LaConsay’s opinion in the narrative examination report and the GAF of 

55. (Id.).

The Court finds that no error was committed because the evidence of record, as 

the ALJ articulated in his decision, supports his determination to not give “any 

significant weight” to Dr. LaConsay’s opinions in the MSS Form. In the MSS Form, Dr. 

LaConsay states, inter alia, that the Plaintiff has a “moderate” restriction in 

understanding and remembering complex instructions; “moderate” restrictions in 

interacting with supervisors, co-workers, and the public; “marked” restrictions in 

carrying out complex instruction, making judgments on complex work-related 

decisions, and responding appropriately to usual work situation and changes in a 

routine work setting. (Id. at 348-49). Dr. LaConsay stated that her assessment of the 

Case 1:14-cv-00575-C Document 20 Filed 04/15/16 Page 18 of 26
19

Plaintiff’s limitations in interacting with others and responding to work situations was 

supported by the following factors: “[s]ignificant depression & anxiety lead her to avoid 

people; easily overwhelmed and quickly becomes disorganized with the most minimal 

of stressors.” (Id. at 349). Dr. LaConsay also stated that in light of the Plaintiff’s 

performance on simple tasks administrated during her examination, she is slower to 

process information and to formulate a response. (Id.). 

As the ALJ stated, these conclusions are not consistent with the narrative report 

in her consultative psychological evaluation. Although Dr. LaConsay did state in her 

report that the Plaintiff’s overall affective expression was “dysphoric” and that she is 

easily overwhelmed by the most minimal of stressors, she specifically stated that 

because the Plaintiff “was non-compliant with certain aspects of this examination . . ., 

[o]verall, this is not felt to be an accurate and representative assessment of her abilities.” 

(Id. at 345-47).5 Further, despite being prescribed several medications, including ones 

for anxiety, depression, and insomnia, the Plaintiff denied having taken any 

medications the day of Dr. LaConsay’s examination. (Id. at 343-44).6

 5 The Plaintiff argues that “[t]he fact that Mrs. Wright did not complete one of 

several tests is quite different from being noncompliant with ‘large portions of the 

examination’ as stated by the ALJ. (Doc. 12 at 12). However, Dr. LaConsay did not 

state that the Plaintiff was noncompliant with only one test, but that the Plaintiff was 

noncompliant with aspects of the examination with one example being the Rotter 

Incomplete Sentences Blank. (Tr. at 347). Nevertheless, no matter how many aspects of 

the examination with which the Plaintiff was noncompliant, the noncompliance was 

enough for Dr. LaConsay to opine that “[o]verall, this is not felt to be an accurate and 

representative assessment of [the Plaintiff’s] abilities.” (id. (emphasis added)).

6 Notably, Dr. LaConsay stated in the narrative report that “with both 

participation in and compliance with psychological and/or psychiatric interventions to 

deal with her depression and anxiety, she could re-enter the work force.” (Tr. at 347).

Case 1:14-cv-00575-C Document 20 Filed 04/15/16 Page 19 of 26
20

In addition, Dr. LaConsay’s opinions in the MSS Form about the Plaintiff’s 

limitations in carrying out complex instructions and interacting with others are 

inconsistent with the Plaintiff’s own statements in her function report that she can drop 

off pay bills, follow instructions well, handle bank accounts, use a checkbook, drive a 

car, spend time with others, handle changes in routine well, go to the post office to drop 

off bills, go to church regularly, and shop for groceries for 45 minutes to an hour a 

week. (Id. at 16 & 188-89).7 Dr. LaConsay assigned the Plaintiff a global assessment of 

functioning (“GAF”) of 55, which indicates only moderate symptoms and is inconsistent 

with her opinion that the Plaintiff had several “marked” restrictions. (see id. at 346-47). 

Finally, as the ALJ painstakingly examined throughout his decision, Dr. LaConsay’s 

conclusions in the MSS Form regarding the Plaintiff’s “significant depression & 

anxiety” is contradicted by the conservative, limited nature of the treatment advised or 

obtained through Dr. Ndolo or any other source. (See id. at 18-23, 291-41 & 356-63).8 For 

these reasons, the Court finds that the evidence, as articulated by the ALJ, supports an 

opinion regarding the Plaintiff’s mental restrictions contrary to Dr. LaConsay’s 

 7 The Plaintiff also denied having any problems getting along with authority 

figures or ever being laid off for problems getting along with others. (Tr. at 190-91). 

Although it is acknowledged that she may have experienced difficulty in her last job, 

she testified that this was a high stress situation caused by a particular manager. (Id. at 

34-35). She ultimately stated that she only "sometimes cannot face people." (Id. at 191).

8 As the ALJ indicated, the Plaintiff has never required inpatient treatment, 

emergency treatment, specialist treatment, or even individual therapy for mental health 

issues. (Tr. at 21). Also, there is no evidence that the Plaintiff even sought out a 

counselor, community program, or church program of any type. (Id.). Further, there is 

only one indication during treatment with a physician–Dr. Lourdes Virtusio in 

December 2012–that they "will do a psychiatric referral,” but such referral never 

occurred. (See id. at 291). In fact, the Plaintiff stopped obtaining treatment from Dr. 

Virtusio following that recommendation, and the Plaintiff testified that she has never 

been treated by a psychiatrist or psychologist. (Id. at 21 & 36-39).

Case 1:14-cv-00575-C Document 20 Filed 04/15/16 Page 20 of 26
21

conclusions in the MSS Form. Thus, the ALJ’s decision to not give “any significant 

weight” to the opinion evidence MSS Form is supported by substantial evidence.

As for Dr. Koulianos and Dr. Kravitz, the ALJ gave their opinions “great weight”

because “[t]heir conclusions are the most consistent with the remainder of the 

evidence[,] [t]heir specializations in mental health treatment provide their opinions 

added weight[, and their opinions] are largely consistent with the observations 

throughout the treatment notes regarding the limited nature of symptoms and the 

effectiveness of treatment over time.” (Id. at 23). Dr. Koulianos provided her opinions

through a Psychiatric Review Technique (“PRT”) form and a Mental Residual 

Functional Capacity Assessment, both dated June 15, 2011. (See id. at 241-58). In the 

PRT form, Dr. Koulianos opined that the Plaintiff has “moderate” difficulties in 

maintaining social functioning and concentration, persistence, or pace. (See id. at 251). 

In the Mental RFC Assessment, Dr. Koulianos concluded that the Plaintiff is not 

“markedly limited” in any area but is “moderately limited” in her ability to (a) 

understand and remember detailed instructions; (b) carry out detailed instructions; (c) 

maintain attention and concentration for extended periods; (d) interact appropriately 

with the general public; and (e) respond appropriately to changes in the work setting. 

(Id. at 255-56). On August 29, 2011, Dr. Kravitz conducted a review of Dr. Koulianos’ 

form and assessment indicating his agreement. (See id. at 282-86).

An ALJ is “required to consider the opinions of non-examining state agency 

medical and psychological consultants because they ‘are highly qualified physicians 

and psychologists who are also experts in Social Security disability evaluation.’” Square 

v. Colvin, No. 15-00037-B, 2016 WL 1175274, at *3 (S.D. Ala. Mar. 25, 2016) (citing Milner 

v. Barnhart, 275 F. App’x 947, 948 (11th Cir. 2008) (unpublished)); see also 20 C.F.R. 

§404.1527(e)(2)(i). Further, an ALJ may rely on opinions of non-examining sources

Case 1:14-cv-00575-C Document 20 Filed 04/15/16 Page 21 of 26
22

when they do not conflict with those of examining sources. Id. As previously 

discussed, the ALJ (a) articulated good cause to give “no weight” to Dr. Ndolo’s 

opinion in his mental RFC questionnaire and (b) properly did not give “any significant 

weight” to Dr. LaConsay’s opinion in the MSS Form. As a result, the opinions of Dr. 

Koulianos and Dr. Kravitz do not conflict with any credible examining source, and, 

thus, their opinions were properly considered by the ALJ. See Thomas v. Colvin, No. 11-

00569-B, 2015 WL 4458861, at *14 & n.8 (S.D. Ala. July 21, 2015).

9 For these reasons, and 

because the Plaintiff does not make any additional arguments regarding the ALJ’s 

determination of her RFC,10 the Court finds that the ALJ’s RFC determination is 

supported by substantial evidence in the record. 

II. The ALJ’s Identification of Jobs

At the fifth step of the Commissioner’s evaluation, the Commissioner must 

establish that a significant number of jobs exist in the national economy that the Plaintiff

can perform given her RFC, age, education, and work experience. See, e.g., Bellew v. 

Acting Comm’r of Soc. Sec., 605 F. App’x 917, 930 (11th Cir. 2015) (citation omitted). “An 

 9 The Plaintiff also argues that the ALJ erred in giving greater weight to the 

opinions of Dr. Koulianos and Dr. Kravitz than the opinions of Dr. LaConsay because 

the documents reviewed by Dr. Koulianos precede the Plaintiff’s alleged onset date. 

(Doc. 12 at 14). However, as the Court previously discussed in more detail, the ALJ 

discredited Dr. LaConsay’s opinion in her MSS Form irrespective of the opinions of Dr. 

Koulianos and Dr. Kravitz. (Tr. at 23). Instead, the ALJ considered the opinions of Dr. 

Koulianos and Dr. Kravitz, as he was required to do, and found that their opinions were 

consistent with the rest of the evidence, namely the treatment notes regarding the 

limited and conservative nature of the Plaintiff’s symptoms and treatment. (Id. at 20-

23).

10 At the October 29, 2015 hearing before the Court, counsel for the Plaintiff 

stated that the Plaintiff is not attacking any aspect of the ALJ’s RFC determination other 

than his assessment of the opinion evidence provided by Dr. Ndolo, Dr. LaConsay, Dr. 

Koulianos, and Dr. Kravitz. 

Case 1:14-cv-00575-C Document 20 Filed 04/15/16 Page 22 of 26
23

ALJ may make this determination either by applying the Medical Vocational Guidelines 

or by obtaining the testimony of a vocational expert.” Winschel v. Comm’r of Soc. Sec., 631 

F.3d 1176, 1180 (11th Cir. 2011) (citing Phillips, 357 F.3d at 1239-40). Here, of course, in 

finding that the Plaintiff could perform other work existing in significant numbers in 

the national economy (see Tr. at 24-25), “the ALJ relied exclusively on the testimony of a 

vocational expert[.]” Dial v. Comm’r of Soc. Sec., 403 F. App’x 420, 421 (11th Cir. 2010). 

“’In order for a vocational expert’s testimony to constitute substantial evidence, the ALJ 

must pose a hypothetical question which comprises all of the claimant’s impairments.’” 

Winschel, 631 F.3d at 1180 (quoting Wilson v. Barnhart, 284 F.3d 1219, 1227 (11th Cir. 

2002) (per curiam)); see also Dial, 403 F. App’x at 421 (holding that where an ALJ failed 

to include all of the claimant’s “employment limitations in the hypothetical questions 

posed to the VE . . ., the VE’s testimony did not constitute substantial evidence upon 

which the ALJ could rely.”).

In this case, the Plaintiff contends that the ALJ erred in finding that she can 

perform work existing in significant numbers in the national economy because the ALJ 

identified “silver wrapper” and “night cleaner,” two jobs at the light, unskilled level, as 

available jobs the Plaintiff can perform. The Plaintiff contends that the identification of 

these two jobs constitutes an error because Grid Rules 202.04 and 202.06 direct a finding 

of “disabled” if the Plaintiff is limited to light, unskilled work. The ALJ, however, also 

identified the occupations of “packager” and “laundry aide,” two jobs at the medium, 

unskilled level provided by the VE at the hearing before the ALJ as occupations the 

Case 1:14-cv-00575-C Document 20 Filed 04/15/16 Page 23 of 26
24

Plaintiff would be able to perform, as jobs existing in significant numbers in the national 

economy.11 (Id. at 24-25). 

Assuming arguendo that the ALJ did err in identifying the jobs of “silver 

wrapper” and “night cleaner,” such error is harmless as the ALJ also identified two jobs 

at the medium, unskilled level that the Plaintiff would be able to perform and that exist 

in significant numbers in the national economy. See Caldwell v. Barnhart, 261 F. App’x 

188, 190 (11th Cir. 2008) (unpublished) (affirming the lower court’s determination that 

the ALJ’s failure to include certain limitations in the VE hypothetical was harmless error 

because the omitted limitations would not affect the claimant’s ability to perform one of 

the jobs identified by the VE as appropriate for the claimant), Robinson v. Colvin, No. 14-

00084-N, 2015 WL 1520431 at *12-14 (S.D. Ala. Apr. 2, 2015) (rejecting the claimant’s 

argument that the ALJ erred by relying on a VE’s improper identification of two 

occupations when the claimant did not object to the third job identified by the VE as 

appropriate for the claimant), Blake v. Colvin, No. 2:13-cv-01799-LSC, 2014 WL 5393876, 

at *7 (N.D. Ala. Oct. 23, 2014) (citations omitted) (“[E]ven if this Court were to agree . . . 

that the ALJ did limit [the claimant] to unskilled work, his determination of the number 

of jobs available to her in the national economy that are light or sedentary and unskilled 

is still ‘significant,’ as required by the regulations. Even disregarding all semi-skilled 

jobs . . . about which the VE testified and that the ALJ found [the claimant] could 

perform, the ALJ still found that there exist—at the unskilled level—75,000 jobs 

 11 Specifically, as the ALJ stated in his decision, the VE testified that there are 

approximately 4,000 “packager” jobs in the state in Alabama, 330,000 “packager” jobs in 

the national economy, 4,000 “laundry aide” jobs in the state of Alabama, and 400,000 

“laundry aide” jobs in the national economy. The Court notes that the Plaintiff does not 

argue that she is unable to perform the jobs of “packager” or “laundry aide.” 

Case 1:14-cv-00575-C Document 20 Filed 04/15/16 Page 24 of 26
25

nationally that [the claimant] could perform. The ALJ could have found these job 

numbers alone to be ‘significant in the national economy.’ Accordingly, a remand to 

correct this harmless error would be unwarranted; it would amount to ‘an empty 

exercise,’ as the result of the ALJ's decision would not change.”), Brown v. Astrue, No. 

3:11-cv-806-J-JRK, 2012 WL 2979046, at *3-6 (M.D. Fla. July 20, 2012) (“Plaintiff and the 

Commissioner recognize that the VE likely erred in citing to the food checker position, 

because it appears the VE actually described the position of food and beverage checker 

(DOT number 211.482–018), a light duty position. This error is harmless given that the 

VE cited to two other jobs with sufficient numbers in the national economy that Plaintiff 

can perform, i.e. office helper (272,000 jobs nationally; 14,000 jobs in Florida) and cashier 

II (283,000 jobs nationally; 9,230 jobs in Florida).”), Moorer v. Astrue, No. 

3:11cv397/LAC/EMT, 2012 WL 3537023, at *9-10 (N.D. Fla. July 16, 2012) (“[E]ven if the 

ALJ erred [by including most, but not all, of a specific physician’s opinions in the RFC 

or by relying on the VE’s opinion that the claimant could perform jobs with the RFC 

determined by the ALJ], the error was harmless because significant numbers of jobs 

remain available even taking into account all of [said physician’s] opinions.”); see also

Brooks v. Barnhart, 133 F. App’x 669, 671 (11th Cir. 2005) (unpublished) (finding that the 

ALJ’s determination that 840 jobs constituted a significant number in the national 

economy was supported by substantial evidence), Allen v. Bowen, 816 F.2d 600, 602 (11th 

Cir. 1987) (upholding an ALJ’s finding that work existed in significant numbers where 

the VE testified that there were 174 small appliance repairman positions in the area 

where the claimant resided). Consequently, the Court finds that the ALJ’s 

determination at the fifth step of the sequential evaluation–that a significant number of 

jobs exist in the national economy that the Plaintiff can perform given her RFC, age, 

education, and work experience–is supported by substantial evidence. 

Case 1:14-cv-00575-C Document 20 Filed 04/15/16 Page 25 of 26
26

CONCLUSION

In light of the foregoing, it is ORDERED that the decision of the Commissioner 

of Social Security denying the Plaintiff benefits be affirmed.

DONE and ORDERED this the 13th day of April 2016.

s/WILLIAM E. CASSADY

UNITED STATES MAGISTRATE JUDGE

Case 1:14-cv-00575-C Document 20 Filed 04/15/16 Page 26 of 26