REPORT AND RECOMMENDATION
CHARLES A. STAMPELOS, Magistrate Judge.
This is a Social Security case referred to the undersigned magistrate judge for a report and recommendation pursuant to 28 U.S.C. § 636(b) and Local Rule 72.2(D). It is now before the Court pursuant to 42 U.S.C. § 405(g) for review of the final determination of the Acting Commissioner (Commissioner) of the Social Security Administration (SSA) denying Plaintiff's application for Supplemental Security Income (SSI) filed pursuant to Title XVI of the Act and an application for a period of disability and Disability Income Benefits (DIB) filed pursuant to Title II of the Social Security Act. After consideration of the entire record, it is recommended that the decision of the Commissioner be affirmed.
I. Procedural History
On August 9 and 13, 2013, Plaintiff, Sharone E. Berry, filed applications for DIB and SSI, respectively, alleging disability beginning June 29, 2013, based on neuropathy in her right leg and left hand; arthritis in the legs and back; degenerative disc disease; depression, fractured ankle; high blood pressure; and chronic sinusitis. Tr. 29, 107, 117, 246-56, 277, 282, 287.1 Plaintiff last met the insured status requirements for DIB on June 30, 2016. Tr. 29.
Plaintiff's applications were denied initially on October 28, 2013, and upon reconsideration on January 14, 2014. Tr. 29, 24-46, 127-30, 153-56. On February 21, 2014, Plaintiff requested a hearing. Tr. 29, 180-81. On March 22, 2016, ALJ Robert Droker conducted a video hearing from Jacksonville, Florida, and Plaintiff appeared in Gainesville, Florida.2 Tr. 22, 47-87. Plaintiff was represented by N. Albert Bacharach, Jr., an attorney, but Pamela C. Dunmore, an attorney and appointed co-representative from the same firm, appeared at the hearing. Tr. 29, 47, 49, 177-79, 212. Plaintiff testified during the hearing. Tr. 29, 56-76. Paul R. Dolan, M.A., CRC, an impartial vocational expert, testified during the hearing. Tr. 29, 78-86, 332-33 (Resume). During the hearing, Exhibits B1A through B13A, B1B through B21B, B1D through B11D, B1E through B16E, and B1F through B6F were received into evidence. Tr. 55, 42-46; see ECF No. 10-1.
On April 14, 2016, the ALJ issued a decision and denied Plaintiff's applications for benefits concluding that Plaintiff was not disabled from July 8, 2013, to the date of the decision. Tr. 29-41.
On June 1, 2016, Plaintiff requested review of the ALJ's decision, Tr. 15-17, and provided the Appeals Council with medical records (eight pages) dated April 18, 2016, from UF Health Shands Hospital (Shands). Tr. 18-25. The record also contains an April 12, 2016, letter from Shands stating: "Sharone Elaine Berry has been using a cane to ambulate. Per patient report this has improved ambulation and reduced falls." Tr. 6, 336 (Exhibit B17E). On April 14, 2017, the Appeals Council noted that it had considered the April 12th letter and the April 18th records and denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner. Tr. 1-7; see 20 C.F.R. § 404.981. As part of its decision, the Appeals Council stated, in part:
We considered the borderline age situation in this case and we found that the factors in the record did not support application of the higher age category.
We also looked at medical records from UF Health, dated April 18, 2016 (8 pages). The Administrative Law Judge decided your case through April 14, 2016. This new information is about a later time.
Therefore, does not affect the decision about whether you were disabled beginning on or before April 14, 2016.
If you want us to consider whether you were disabled after April 14, 2016, you need to apply again. The new information you submitted is available in your electronic file for you to use in your new claim. . . . .
Tr. 2 (emphasis added).3 The ALJ did not mention consideration of "the borderline age situation," Tr. 29-41, although he was aware of Plaintiff's age of 54 at the time of the hearing, Tr. 56-80.
On June 13, 2017, Plaintiff, by counsel, filed a Complaint with this Court seeking review of the ALJ's decision. ECF No. 1. The parties filed memoranda of law, ECF Nos. 16 and 17, which have been considered.
II. Findings of the ALJ
The ALJ made several findings:
1. "The claimant meets the insured status requirements of the Social Security Act through June 30, 2016." Tr. 31.
2. "The claimant has not engaged in substantial gainful activity since July 8, 2013, the amended alleged onset date." Id.
3. "The claimant has the following severe impairments: osteoarthritis of the right ankle and first MTP joint; degenerative disc disease with lumbar radiculopathy; obesity; affective disorder; and peripheral neuropathy." Id. The ALJ also noted that Plaintiff "has sought treatment for and/or been diagnosed with hypertension, gastroesophageal reflux disease (GERD), and history of substance use disorder (in full remission); however, the evidence does not show that these impairments have imposed vocationally restrictive limitations for a period of 12 continuous months. . . .
Nevertheless, the undersigned has considered the combined impact of both the severe and non-severe impairments in formulating the residual functional capacity [RFC] below." Tr. 32.
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." Tr. 32. The ALJ considered the effects of Plaintiff's "obesity when assessing the claimant under the listings and other steps of the sequential evaluation process, including the assessment of her [RFC]." Id. The ALJ also considered the severity of Plaintiff's depression and determined that it did not meet or medically equal the criteria of Listing 12.04. Nevertheless, the ALJ considered the "paragraph B" criteria and determined that Plaintiff had mild limitation in activities of daily living and social functioning; mild to moderate limitation in maintaining concentration, persistence, or pace; and had no episodes of decompensation of extended duration. Tr. 32-33.
5. "[T]he claimant has the [RFC] to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except she needs to be afforded the opportunity to alternate between sitting and standing at her option; she needs to avoid ladders or unprotected heights; she needs to avoid the operation of heavy moving machinery; she needs simple tasks with low stress and no production line; she is limited to occasional bending, kneeling and stooping; she needs to avoid crouching, squatting and crawling; she needs to avoid the push and pull of arm controls; she needs to avoid the operation of foot controls; she needs to avoid extreme cold; and she needs to be allowed to use a mono-cane for ambulation." Tr. 34; see infra at n.4.
6. The claimant is unable to perform any past relevant work." Tr. 39. The ALJ noted the vocational expert testified that Plaintiff's past relevant work is classified in the Dictionary of Occupational Titles (DOT) as fast food worker, light exertion; cleaner/hospital, medium exertion; and cleaner/commercial, heavy exertion (but performed at a lighter exertion). Each of these jobs are unskilled with an SVP of 2. Id.; see infra at n.4.
7. The claimant was 51 years old, which is defined as an individual closely approaching advanced age (age 50 to 54), on the alleged disability onset date. Tr. 39; see 20 C.F.R. § 404.1563(d). A person of advanced age is age 55 or older. 20 C.F.R. § 404.1563(e). Plaintiff was approximately 54 ½ years old as of the date of the ALJ's decision. Tr. 56. ECF No. 16 at 17. The ALJ did not mention consideration of "the borderline age situation," although he was aware of Plaintiff's age of 54 at the time of the hearing, Tr. 56-80. Tr. 29-41. The Appeals Council considered this issue. Tr. 2; see supra at 4.
8. "The claimant has a high school education (with special education classes) and is able to communicate in English." Tr. 39. "Transferability of job skills is not an issue in this case because the claimant's past relevant work is unskilled." Id.
9. "Considering the claimant's age, education, work experience, and [RFC], there are jobs that exist in significant numbers in the national economy that the claimant can perform." Tr. 39. As noted above, at 51 years old as of the alleged disability onset date, the ALJ considered Plaintiff to be an individual closely approaching advanced age. Having determined that Plaintiff had the RFC to perform a full range of light work, the Medical-Vocational Rules (the Grids) would direct a finding of "not disabled" pursuant to Rules 202.10 and 202.13. Tr. 40; see 20 C.F.R. pt.404, subpt. P, app.2, table no.1, §§ 202.10 and 202.13. The ALJ determined, however, Plaintiff's ability to perform all or substantially all the requirements of this level of work has been impeded by additional limitations. Tr. 40. As a result, the ALJ asked the vocational expert whether jobs exist in the national economy for an individual with the Plaintiff's age, education, work experience and RFC. Id. The vocational expert testified that such an individual could perform several representative occupations such as ticket seller, ticket taker, and house sitter, all light exertion, unskilled, with an SVP of 2. Id.; see Tr. 80-86.4 Plaintiff argues herein that at best, Plaintiff has the RFC to perform sedentary work, and, given Plaintiff's age, Plaintiff should have been considered disabled pursuant to Rule. ECF No. 16 at 17. Plaintiff also argues the Appeals Council should have remanded this matter for payment of benefits, pursuant to Rule 202.04 because, as of October 22, 2016, Plaintiff turned 55 and was a person of advanced age and a decision of disabled is provided under this Rule. Id. at 18. During the hearing, Plaintiff's counsel argued the ALJ should consider Rule 201.14 (limited to sedentary work), which would indicate the decision should be Plaintiff is disabled. Tr. 66.
10. "The claimant has not been under a disability, as defined in the Social Security Act, from July 8, 2013, through the date of the date of [the ALJ's] decision." Tr. 40.
III. Legal Standards Guiding Judicial Review
This Court must determine whether the Commissioner's decision is supported by substantial evidence in the record and premised upon correct legal principles. 42 U.S.C. § 405(g); Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). "Substantial evidence is more than a scintilla, but less than a preponderance. It is such relevant evidence as a reasonable person would accept as adequate to support a conclusion." Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983) (citations omitted); accord Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). "The Commissioner's factual findings are conclusive if supported by substantial evidence." Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002) (citations omitted).5
"In making an initial determination of disability, the examiner must consider four factors: `(1) objective medical facts or clinical findings; (2) diagnosis of examining physicians; (3) subjective evidence of pain and disability as testified to by the claimant and corroborated by [other observers, including family members], and (4) the claimant's age, education, and work history.'" Bloodsworth, 703 F.2d at 1240 (citations omitted). A disability is defined as a physical or mental impairment of such severity that the claimant is not only unable to do past relevant work, "but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d)(2)(A). A disability is an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A); see 20 C.F.R. §§ 404.1505(a), 404.1509 (duration requirement).6
Both the "impairment" and the "inability" must be expected to last not less than 12 months. Barnhart v. Walton, 535 U.S. 212 (2002). In addition, an individual is entitled to DIB if she is under a disability prior to the expiration of her insured status. See 42 U.S.C. § 423(a)(1)(A); Moore v. Barnhart, 405 F.3d at 1211; Torres v. Sec'y of Health & Human Servs., 845 F.2d 1136, 1137-38 (1st Cir. 1988); Cruz Rivera v. Sec'y of Health & Human Servs., 818 F.2d 96, 97 (1st Cir. 1986).
The Commissioner analyzes a claim in five steps. 20 C.F.R. § 404.1520(a)(4)(i)-(v).
1. Is the individual currently engaged in substantial gainful activity?
2. Does the individual have any severe impairments?
3. Does the individual have any severe impairments that meet or equal those listed in Appendix 1 of 20 C.F.R. Part 404, Subpart P?
4. Does the individual have the RFC to perform work despite limitations and are there any impairments which prevent past relevant work?7
5. Do the individual's impairments prevent other work?
A positive finding at step one or a negative finding at step two results in disapproval of the application for benefits. A positive finding at step three results in approval of the application for benefits. At step four, the claimant bears the burden of establishing a severe impairment that precludes the performance of past relevant work. Consideration is given to the assessment of the claimant's RFC and the claimant's past relevant work. If the claimant can still do past relevant work, there will be a finding that the claimant is not disabled. If the claimant carries this burden, however, the burden shifts to the Commissioner at step five to establish that despite the claimant's impairments, the claimant is able to perform other work in the national economy in light of the claimant's RFC, age, education, and work experience. Phillips, 357 F.3d at 1237; Jones v. Apfel, 190 F.3d 1224, 1229 (11th Cir. 1999); Chester, 792 F.2d at 131; MacGregor v. Bowen, 786 F.2d 1050, 1052 (11th Cir. 1986); 20 C.F.R. § 404.1520(a)(4)(v), (e) & (g). An ALJ may make this determination either by applying the grids or by obtaining the testimony of a vocational expert. Phillips, 357 F.3d at 1239-40; see 20 C.F.R. pt. 404, subpt. p, app. 2. If the Commissioner carries this burden, the claimant must prove that he or she cannot perform the work suggested by the Commissioner. Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987).
Plaintiff bears the burden of proving that he is disabled, and consequently, is responsible for producing evidence in support of his claim. See 20 C.F.R. § 404.1512(a); Moore, 405 F.3d at 1211.
IV. Legal Analysis
Substantial evidence supports the ALJ's evaluation of Plaintiff's report of pain, the medical evidence, Plaintiff's RFC, and determination that she can perform representative jobs in the national economy.
A.
Plaintiff argues the Appeals Council should have remanded this matter for payment of benefits, pursuant to Rule 202.04 of the Medical-Vocational Guidelines (the Grids), "as of October 22, 2016, Plaintiff's 55th birthday."8 ECF No. 16 at 18.
The regulations divide claimants into several age categories: "younger person" (under age 50); "person closely approaching advanced age" (age 50 to 54); and "person of advanced age" (age 55 or older). 20 C.F.R. § 404.1563(c)-(e). The classification of a person's age can be important because, in general, the higher the age category, the more lenient the standard for proving a disability. For example, the Medical-Vocational Guidelines consider "advanced age."
However, for individuals of advanced age who can no longer perform vocationally relevant past work and who have a history of unskilled work experience, or who have only skills that are not readily transferable to a significant range of semi-skilled or skilled work that is within the individual's functional capacity, or who have no work experience, the limitations in vocational adaptability represented by functional restriction to light work warrant a finding of disabled.
20 C.F.R. pt. 404, subpt. p, app. 2, table no. 2, § 202.00(c). In other words, the Commissioner should "consider that at advanced age (age 55 or older), age significantly affects a person's ability to adjust to other work" even if the claimant would otherwise have the RFC to perform that work. 20 C.F.R. § 404.1563(e).
Plaintiff was 51 years old as of the date of her amended alleged disability, July 8, 2013. Tr. 29, 39-40. Plaintiff's age should be considered as of the date of the ALJ's decision, see Tr. 40, which makes her 54 years old and just shy of six months from her 55th birthday. There are many cases discussing what is or is not a "borderline age situation." See generally Pettway v. Astrue, No. CA 10-127-C, 2010 U.S. Dist. LEXIS 101693, at *11-13 (S.D. Ala. Sept. 27, 2010) (canvassing cases from across the nation which address when an age should be considered borderline). In Bowman, the Court
agree[d] with the Magistrate Judge and our sister courts in the Middle District of Florida that the ALJ is required (1) to provide claimant an opportunity to be heard on this borderline situation issue, (2) to make an individualized determination of the age factor, and (3) to expressly articulate his or her consideration of the claimant borderline situation.
2015 U.S. Dist. LEXIS 138175, at *4 (citations omitted). In Bowman, the Court agreed it was unable to determine from the record whether the ALJ considered the borderline situation, implicitly or otherwise, and, without this explanation, could not conclude that the ALJ's decision is supported by substantial evidence. The case was remanded under sentence four of 42 U.S.C. § 405(g). Id. at *5.9
Here, the ALJ stated that Plaintiff was 51 years old, which is defined as an individual closely approaching advanced age (age 50 to 54), on the alleged disability onset date. Tr. 39; see 20 C.F.R. § 404.1563(d). A person of advanced age is age 55 or older. 20 C.F.R. § 404.1563(e). Plaintiff was approximately 54 ½ years old as of the date of the ALJ's decision, Tr. 56. ECF No. 16 at 17.
Like the situation in Bowman, the ALJ did not mention consideration of "the borderline age situation," although he was aware of Plaintiff's age of 54 at the time of the hearing, Tr. 56-80.10 Tr. 29-41. But, unlike the situation in Bowman, the Appeals Council considered this issue stating: "We considered the borderline age situation in this case, and we found that the factors in the record do not support application of the higher age category." Tr. 2; see supra at 4.
The Court in Pettway discussed several scenarios resolved by the courts. The Court distinguished the facts presented from other cases and stated:
Here, by contrast, the Appeals Council provided this Court "some record of their thought process regarding the requirements of § 404.1563(b)." Bowie, 539 F.3d at 403 (Moore, J., dissenting) (citing Daniels with approval); see also Russell, 20 F. Supp. 2d at 1135-36 ("when a borderline situation is presented a factual determination must be made as to the appropriate age category . . . [and that] the ALJ's failure to explain his choice of age category in a borderline situation . . . impedes judicial review"); Pickard, 224 F. Supp. 2d at 1169 (adopting Daniels and recommending that the case be remanded because "[t]he ALJ's failure to address the borderline issue and to explain his choice of age category . . . impede this court's ability to review his application of § 404.1563(a)"). As stated previously, the Appeals Council recognized that a borderline age situation existed, "considered the overall impact of all factors in the case," and then found "no additional vocational adversities that would have warranted using the next higher age category" (R. 8.)—as opposed to finding that claimant failed to meet his burden to show vocational adversities justifying the use of the higher age category. See Bowie, 539 F.3d at 401 (Court of Appeals affirming Magistrate Judge's explanation that "there [was] simply no evidence in the record that Bowie suffered from any `additional vocational adversities' that might justify placing her in the higher age category").
2010 U.S. Dist. LEXIS 101693, at *18-19 (bold in original). Here, like Pettway, but without an extended discussion, the Appeals Council stated that it "considered the borderline age situation in this case, and we found that the factors in the record do not support application of the higher age category." Tr. 2. Thus, unlike Bowman where neither the ALJ nor the Appeals Council considered the borderline age situation, the Appeals Council did so here.
In addition, the ALJ advised the vocational expert of Plaintiff's age ("54-years old," Tr. 80) along with other factors when posing a hypothetical question. Tr. 80; see Tr. 81 ("Let's go down to entry level, assume the claimant has no skills or semi-skills at all, that she's the age I previously described, has the work experience and the education previously stated. . . .") (emphasis added). The ALJ did not mention Plaintiff's borderline age situation or transferability of skills per se in the hypothetical question, although he mentioned that she had no skills and ultimately determined that "[t]ransferability of job skills is not an issue in this case because the claimant's past relevant work is unskilled." Tr. 39. See generally McShane v. Comm'r of Soc. Sec., No. 8:15-cv-677-T-JSS, 2016 U.S. Dist. LEXIS 27855, at *16-18 (M.D. Fla. Mar. 4, 2016).
The ALJ determined that Plaintiff did not have the RFC to perform the full range of light work due to additional limitations, and, therefore, the ALJ properly used the Grids only as a framework for the decision and considered the testimony of a vocational expert to determine there was other representative work that Plaintiff could perform given her age, experience, and RFC. Tr. 40.
In the Eleventh Circuit, a claimant can rebut an ALJ's age findings of fact by proffering substantial credible evidence that his or her ability to adapt to other work is less than the level established by the Grids for persons of the claimant's age. Reeves v. Heckler, 734 F.2d 519 (11th Cir. 1984). As discussed below, Plaintiff does not persuasively prove that her ability to adapt was less than that of persons of her age category, and, therefore, she has not shown that the ALJ's finding was erroneous. Reeves, 734 F.2d at 525.
Moreover, the question of whether the claimant should have been treated as a person of advanced age or closely approaching advanced age is not dispositive where the ALJ does not rely exclusively on the Grids and substantial evidence supports the ALJ's determination that the claimant was not disabled. Miller v. Comm'r of Soc. Sec. Admin., 241 F. App'x 631, 636 (11th Cir. 2007) (unpublished) (issue whether ALJ erred in treating 54-year-old as "person of advanced age" or "closely approaching advanced age" under Grids was "essentially theoretical" because ALJ did not rely exclusively on Grids in making disability determination and utilized testimony of VE). Here, the ALJ utilized the testimony of the vocational expert, based on a hypothetical that assumed a person of Plaintiff's age, education, experience, and RFC, in finding that Plaintiff was not disabled. No error has been shown.
B.
Plaintiff argues that the ALJ erred when he determined that Plaintiff had the RFC to perform light work with additional postural and mental limitations and makes several arguments.11 ECF No. 16 at 17-25. To this end, Plaintiff alleges the ALJ's RFC assessment was inconsistent with evidence that she has an IQ of 71, attended special education classes throughout school, and has a history of legal, social, and drug problems. ECF No. 16 at 18.
At step 3 of the sequential evaluation process, the ALJ considered whether Plaintiff's depression met or medically equaled the criteria of Listing 12.04. Tr. 32. The ALJ considered the "paragraph B" criteria and determined that Plaintiff had mild limitation in activities of daily living and social functioning, mild to moderate limitation in her ability to maintain concentration, persistence, or pace, and no evidence that Plaintiff has experienced episodes of decompensation of extended duration. Tr. 32-33. The ALJ also considered the "paragraph C" criteria of Listing 12.04 and determined "that there is no medically documented history of a chronic affective disorder of at least two years' duration that has caused more than a minimal limitation of ability to do basic work activities."
Tr. 33-34. Nevertheless, the ALJ noted that the limitations identified in the "paragraph B" criteria are not an RFC assessment. Tr. 34.
As part of the RFC assessment, the ALJ considered the evaluation performed by consultative psychologist Diana M. Benton, Psy.D., on October 16, 2013. Tr. 35.
On October 16, 2013, the claimant underwent a consultative psychological examination performed by Diana Benton, PsyD, in connection with this claim. The claimant endorsed depression, a remote history of cocaine abuse, and a history of special education classes. On mental status examination, she had some trouble with calculations and one of the concentration tasks, but the findings were otherwise fairly unremarkable. Dr. Benton diagnosed major depressive disorder and cocaine dependence in full remission, as well as possible borderline intellectual functioning (this was a "rule out" diagnosis and, as such, is not included as a medically determinable impairment for purposes of this decision). She opined that, "[r]egarding [the claimant's] ability to perform various work related mental activities, she appears to have adequate capacity in the areas of understanding and memory, concentration, persistence, social interaction and adaptation to perform work for which she is suited" (Exhibit B3F) [Tr. 417-21].[12]
Tr. 35, 39, 420. Dr. Benton also stated that Plaintiff "may benefit from mental health counseling" and that she "would be able to manage her funds, should benefits be awarded." Tr. 420. No error has been shown. See Comm'r., Soc. Sec. Admin., 593 F. App'x 911, 915 (11th Cir. 2014) (unpublished) (affirming ALJ's reliance on his consultative examiner's opinion in assessing the claimant's RFC).
C.
Plaintiff argues the RFC assessment does not account for her medical imaging and diagnoses of chronic lower back pain and lumbar radiculopathy. ECF No. 16 at 19-20. Although the ALJ found that Plaintiff had a severe impairment of degenerative disc disease with lumbar radiculopathy, Tr. 31, 35, he noted substantial medical evidence showing her conditions caused limitations no greater than those included in the RFC assessment. Tr. 35-36.
The claimant then presented to the emergency department with the same complaints, but testing was unremarkable for any acute abnormalities. She was diagnosed with gastroesophageal reflux disease (GERD) and discharged with advice to quit smoking and follow up with her primary care physician (Exhibit B2F). She followed up at the primary care office a couple weeks later and again in August 2013. On both occasions, she was referred for gastrointestinal consultation and an EGD (this was undertaken in September). At the later appointment, she was also advised to do physical therapy exercises for her back pain and a history of right ankle fracture with continued issues of pain and swelling was noted (Exhibit B1F). The EGD resulted in a finding of esophagitis in October 2013 (Exhibits B2F [Tr. 414-16] and B5F [Tr. 426]).
* * * *
The claimant returned to her primary care office later in October 2013 for medication management of her back pain and GERD. She exhibited a depressed affect and lower back tenderness. The following month, she reported right leg numbness and continued back pain. A notation was made of a 2011 MRI of her lumbar spine that showed "multilevel osteochondrotic changes in the lumbar spine, most pronounced at the L3-L4 level where there is severe degenerative disc disease and a small left foraminal disc extrusion narrowing the left L3 neuroforamen. A small right paracentral L4-L5 disc extrusion in combination with the bilateral moderate facet arthrosis causes mild to moderate narrowing of the right L4 neural foramen." Her dose of Gabapentin was increased and she was referred to an orthopedist. She also complained of shortness of breath and was referred for a chest x-ray and CT scan. In December 2013, she reported worsening of the right ankle pain and said she had started using a cane to ambulate due to unsteadiness. An x-ray showed trace osteoarthritis of the first MTP joint and a small bone fragment (Exhibit B4F) [Tr. 429-34].
Throughout early and mid-2014, the claimant followed up with her primary care office with continuing complaints of back and ankle pain. She was encouraged to take her medications and wear the right ankle brace. Referrals were provided to We Care and an orthopedist, but the claimant had some difficulty in obtaining this care and in affording her medications (though she also had compliance problems, as well as issues with confusion about what the medications were for and how she should take them). On physical examinations, the claimant generally showed tightness and tenderness of the lumbar spine and occasional swelling and tenderness of the right ankle (Exhibit B6F) [Tr. 491-92]. In August 2014, the claimant presented to the emergency department with a back and ankle pain exacerbation after a fall on the right side. X-rays of the lumbar spine showed diffuse facet osteoarthritis and sclerotic changes in the spinous processes. An x-ray of the right ankle confirmed the previously noted old fracture and the mild osteoarthritis of the first MTP joint. She was given pain medication and discharged the same day (Exhibit B5F) [Tr. 445-58].
The claimant's chronic pain complaints continued through the remainder of 2014 and she also complained of right wrist pain (for which she was given a splint) and depression. It was noted that she had had poor compliance with her Cymbalta prescription and she had added stress due to a death in the family. She was advised on mental health and grief resources in the community and restarted on Cymbalta with an increased dose [Tr. 476-77]. In February 2015, it was noted on follow up that "it is unclear what medications [the claimant] is taking." Intramuscular injections of Toradol were administered to the back and right leg for acute pain and she was given updated prescriptions for her medications. Medication compliance was emphasized and she was advised (as she had been on numerous other occasions) to bring her medication bottles in to the next appointment for reconciliation [Tr. 471-73, 482]. Despite this admonition, she again forgot to bring the bottles to her March 2015 appointment; however, she reported improvement in her pain with medication and less depression with counseling. She indicated performing more household duties and having an improved mood. Continued compliance issues were noted and she was again counseled regarding her medication regimen (this recurred throughout 2015) [Tr. 469-71]. In July 2015, the claimant reported continued pain and worsening depression, but admitted to medication noncompliance and failure to follow up with the community resources that had been provided [Tr. 461]. In September 2015, she reported running out of her medications prior to her appointment and having symptom exacerbations. She was given medication refills and referred to an orthopedist for evaluation and imaging (Exhibit B6F) [Tr. 459-61].
Throughout 2014 and 2015, it was noted that the claimant was using a cane when ambulating to assist with balance, but it does not appear to have been prescribed. Nonetheless, it was noted that she did not have issues with balance or with falls while using the cane, so the undersigned has included the use of a cane in the residual functional capacity (Exhibit B6F) [see, e.g., Tr. 467, 489, 491, 493].
Tr. 35-36.
Thereafter, the ALJ considered Plaintiff's hearing testimony, Tr. 36-37, and stated, in part, Plaintiff's "statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the evidence for the reasons explained below." Tr. 37. The ALJ analyzed Plaintiff's subjective complaints in light of her ability to perform daily activities and concluded that Plaintiff "is able to perform a fairly wide range of activities of daily living, which is not entirely consistent with the allegations of an inability to perform work activity."13 Id.
The ALJ further determined that Plaintiff has severe impairments that result in functional limitations, but not to such a degree that would be debilitating or preclude work within the RFC. Tr. 38. The ALJ considered Plaintiff's consistent reported complaints of pain during the relevant period and noted that her physical examinations have shown tenderness and tightness in the back and some tenderness and swelling in the right lower extremity and wrist. Tr. 38. The ALJ noted that he considered these factors in the RFC. Id.
Plaintiff alleges the ALJ's RFC assessment does not account for her obesity in combination with her other symptoms. ECF No. 16 at 21-23. The ALJ identified obesity as a severe impairment and expressly referred to SSR 02-01p, 2002 SSR LEXIS 1 (2002) and one of Plaintiff's "precipitating and aggravating factors." Tr. 31-32, 38. In particular, the ALJ noted Plaintiff's obesity precipitated and/or aggravated her back pain, hypertension, and GERD and he accounted for those in his RFC assessment. Tr. 38. The ALJ considered Plaintiff's obesity and no error has been shown. See Lewis v. Comm'r of Soc. Sec., 487 F. App'x 481, 483 (11th Cir. 2012) (unpublished).
D.
Plaintiff challenges the ALJ's observation that her cane was not prescribed, alleging that a cane is a nonprescription item. ECF No. 16 at 20. Although it is possible to obtain a cane without a prescription, doctors may still prescribe a cane when it is medically necessary. Notwithstanding, the ALJ accounted for Plaintiff's use of a cane by including it in the RFC assessment. Tr. 34 ("she needs to be allowed to use a mono-cane for ambulation"); see Tr. 36 ("it was noted that she did not have issues with balance or with falls while using the cane, so the undersigned has included the use of a cane in the [RFC] (Exhibit B6F)")
E.
ALJ also considered the evaluations performed by State agency medical consultant, Thomas Peele, M.D., Tr. 137-41, 149-52 (Jan. 9, 2014, Reconsideration), who provided a physical RFC conclusion stating that Plaintiff could perform light exertional work with some limitations. Tr. 38. He also considered the evaluations of State agency psychological consultants, Sharon Ames-Dennard, Ph.D., Tr. 110-12, 116, 120-22, 126 (Oct. 26, 2013, Initial), and David Clay, Ph.D., Tr. 131-37, 146-48 (Dec. 31, 2013, Reconsideration), who provided separate mental RFC conclusions stated that Plaintiff had only mild limitations in activities of daily living, social functioning, and in concentration, persistence, and pace. Id. The ALJ noted the general proposition that they were non-examining physicians "and therefore their opinions do not as a general matter deserve as much weight as that of examining or treating physicians," but "do deserve substantial weight in a case like this in which the conclusions are largely consistent with the evidence.[14 ] Nonetheless, the [ALJ] . . . assessed a slightly more restrictive [RFC] out of an abundance of caution in light of the evidence received at the hearing level." Tr. 38-39.
Substantial evidence supports the ALJ's RFC assessment. The ALJ properly performed his responsibility of evaluating the relevant evidence in assessing Plaintiff's RFC. Tr. 16-19; see Ybarra v. Comm'r of Soc. Sec., 658 F. App'x 538, 543 (11th Cir. 2016) (unpublished).
F.
Plaintiff alleges she should have been found disabled at step 5 of the sequential evaluation process pursuant to the application of the Grids. ECF No. 17 at 17-18. Substantial evidence supports the ALJ's reliance on the vocational expert's testimony that supported the ALJ's finding that Plaintiff could perform other jobs in the national economy.
At step 4, the ALJ found that Plaintiff could not perform her past relevant work. See supra at 5-6. The ALJ was required to determine if Plaintiff could perform other work at step 5. Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999). The ALJ utilized the testimony of the vocational expert within the framework of Rules 202.10 and 202.13 of the Grids—the rules that most closely corresponded to Plaintiff's vocational characteristics—to conclude that a significant number of jobs exist in the national economy that Plaintiff could perform given her RFC and other vocational factors. Tr. 39-40.
During the hearing, the ALJ posed a hypothetical question to the vocational expert that included Plaintiff's age of 54 years old, that she had no skills or semi-skills, and other factors including the need for a mono-cane for ambulation. Tr. 80-81. The vocational expert believed the hypothetical individual would not be able to return to any of the described past relevant work as defined or as performed. Tr. 81. The vocational expert, however, identified other work in three representative occupations, e.g., ticket seller, ticket taker, and house sitter, all with light exertion, unskilled, with an SVP of 2. Tr. 40, 81-82; see supra at n.4. The vocational expert also considered the types of breaks that would be allowed to maintain this level of competitive employment. Tr. 82. The vocational expert mentioned one caveat to reduce "ticket taker positions by half to reflect what [he believed] would be within the limitations of the hypothetical.[15] Other than that everything is the same." Tr. 82; see Tr. 83-84. The vocational expert further explained that his reduction was based on his "personal experience and observation and market surveys and job analysis." Tr. 83-84.
The vocational expert's testimony was based upon the ALJ's hypothetical question(s) that fairly set out Plaintiff's reasonable limitations. Tr. 80-85. The ALJ relied on the vocational expert's testimony to find that Plaintiff could perform other work. See Wilson, 284 F.3d at 1227. No error has been shown.
V. Conclusion
Considering the record as a whole, the ALJ's findings are based upon substantial evidence in the record and the ALJ correctly applied the law. Accordingly, it is respectfully recommended that the decision of the Commissioner to deny Plaintiff's applications for Social Security benefits be AFFIRMED and Judgment entered for Defendant.
