DANIEL C. IRICK, Magistrate Judge.
Robin Star Rodriguez (Claimant) appeals to the District Court from a final decision of the Commissioner of Social Security (the Commissioner) denying her applications for disability insurance benefits and supplemental security income. Doc. 1; R. 1-8, 266-78. Claimant argued that the Administrative Law Judge (the ALJ) erred by: 1) "failing to properly evaluate [Claimant's] need for an assistive device"; 2) "incorrectly evaluating [Claimant's] credibility and giving inadequate weight to her testimony"; 3) "failing to include limitations from [Claimant's] upper extremity impairments in her residual functional capacity to reach, handle, finger, and feel"; 4) "finding that [Claimant] can perform her past work because the limitations supported by substantial evidence preclude her from performing her past work and direct that she be found disabled under the Medical Vocational Guidelines"; and 5) "failing to properly evaluate [Claimant's] impairments in light of the date last insured." Doc. 17 at 12-35. For the reasons set forth below, the Commissioner's final decision is
In 2013, Claimant filed applications for disability insurance benefits and supplemental security income. R. 15, 266-78. Claimant alleged a disability onset date of June 1, 2012. Id.
The ALJ issued his decision on October 30, 2015. R. 14-28. In the decision, the ALJ found that Claimant had the following severe impairments: cervical disc disease, obesity, gastroesophageal reflux disorder, lumbar disc disease, hypothyroidism, depressive disorder, anxiety disorder, vertigo, hypertension, peptic ulcer disease, neuropathy, migraine headaches, decreased vision, and deep vein thrombosis. R. 17. The ALJ found that Claimant had a residual functional capacity (RFC) to perform less than a full range of sedentary work as defined by 20 C.F.R. §§ 404.1567(a) and 416.967(a).
Id. The ALJ posed a hypothetical question to the vocational expert (VE) that was consistent with the foregoing RFC determination, and the VE testified that Claimant was capable of performing her past relevant work as a telephone solicitor. R. 80-82. The ALJ thus found that Claimant was capable of performing her past relevant work as a telephone solicitor. R. 27. Therefore, the ALJ found that Claimant was not disabled. R. 27-28.
"In Social Security appeals, [the court] must determine whether the Commissioner's decision is `supported by substantial evidence and based on proper legal standards.'" Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (citations omitted). The Commissioner's findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is more than a scintilla — i.e., the evidence must do more than merely create a suspicion of the existence of a fact, and must include such relevant evidence as a reasonable person would accept as adequate to support the conclusion. Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995) (citing Walden v. Schweiker, 672 F.2d 835, 838 (11th Cir. 1982) and Richardson v. Perales, 402 U.S. 389, 401 (1971)). Where the Commissioner's decision is supported by substantial evidence, the District Court will affirm, even if the reviewer would have reached a contrary result as finder of fact, and even if the reviewer finds that the evidence preponderates against the Commissioner's decision. Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991); Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991). The Court must view the evidence as a whole, taking into account evidence favorable as well as unfavorable to the decision. Foote, 67 F.3d at 1560. The District Court "`may not decide the facts anew, reweigh the evidence, or substitute [its] judgment for that of the [Commissioner].'" Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir. 2004) (quoting Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983)).
Claimant argued that the ALJ committed reversible error by failing to properly evaluate Claimant's need for an assistive device. Doc. 17 at 12-14. Specifically, Claimant argued that her need to use a cane limits her RFC to a greater extent than found by the ALJ, and, thus, that the ALJ erred by failing to include Claimant's need to use a cane in Claimant's RFC. Id. Claimant further argued that her need to use a cane would preclude her from performing her past relevant work. Id. The Commissioner argued that the ALJ's decision not to include Claimant's alleged need to use a cane was supported by substantial evidence. Id. at 14-17.
In his decision, the Commissioner stated as follows with regard to Claimant's alleged need to use a cane:
R. 26. Claimant argued that all three of the reasons provided by the ALJ are "erroneous or fail[] to overcome the impact of [Claimant's] need for a cane on her residual functional capacity." Doc. 17 at 12-13. Although the Court has concerns about the first two reasons provided by the ALJ — that Claimant requested a prescription for the cane and that the cane was not prescribed until one year after Claimant's alleged onset date — the Court need not reach those issues here, as the third reason provided by the ALJ is supported by substantial evidence and any error would be harmless.
Claimant argued that the third reason provided by the ALJ was erroneous because Social Security Ruling (SSR) 96-9p provides that "the occupational base for an individual who must use [an assistive] device for balance because of significant involvement of both lower extremities (e.g., because of a neurological impairment) may be significantly eroded." Id. at 13 (italics added). Claimant further noted that SSR 96-9p provides that "[i]n these situations, too, it may be especially useful to consult a vocational resource in order to make a judgment regarding the individual's ability to make an adjustment to work." Id. (italics added). But Claimant provided the foregoing quotes out of context. SSR 96-9p provides, in part, as follows:
SSR 96-9p (italics added). Here, Claimant failed to provide any medical documentation describing the circumstances for which she allegedly needed to use a cane, and, thus, failed to prove that her cane was medically required. Moreover, Claimant provided no record evidence to suggest that the use of a cane would prevent her from performing sedentary work. And substantial evidence otherwise supports the ALJ's determination that Claimant was capable of sedentary work despite her alleged need to use a cane. See R. 21-27, 80-83. As such, Plaintiff failed to carry her burden of establishing that she was disabled, see Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987) ("The claimant bears a heavy burden in establishing the existence of a disability."), and the ALJ's determination was supported by substantial evidence.
Further, aside from citing to a portion of SSR 96-9p and noting that Claimant's RFC includes a sit or stand option that could require Claimant to perform some work from her feet,
Regardless, any error committed by the ALJ would have been harmless. Although Claimant appears to suggest that the ALJ bears the burden of establishing that Claimant was capable of performing her past relevant work, it is Claimant that bears the burden of establishing that she is incapable of performing her past relevant work. See Hale, 831 F.2d at 1011 ("The claimant bears a heavy burden in establishing the existence of a disability. She must first show that her impairment prevents her from performing her previous work"). And Claimant has not demonstrated to the Court — or to the ALJ for that matter — that her purported need to use a cane prevented her from performing her past relevant work as a telephone solicitor. Claimant did not provide, as required by SSR 96-9p, any medical documentation describing the circumstances for which she is required to use a cane. Nor did Claimant provide any record evidence, argument, or authority to suggest that the specific manner in which she was allegedly required to use her cane somehow prevented her from performing her past relevant work.
Finally, Claimant appears to allege, in a single, unsupported sentence, that the ALJ failed to properly explore whether Claimant's past relevant work as a telephone solicitor would permit a sit or stand option as required in Claimant's RFC. R. 14. But Claimant waived this argument by raising it in a perfunctory manner. See, e.g., Jacobus, 2016 WL 6080607, at *3 n.2 (stating that claimant's perfunctory argument was arguably abandoned). Moreover, the ALJ questioned the VE regarding whether Claimant would be able to perform her past relevant work subject to a sit or stand restriction consistent with the RFC, and the VE testified that, indeed, Claimant would be able to perform her past relevant work. R. 81-82. Claimant's counsel did not elicit any testimony from the VE to suggest otherwise. R. 83-86.
A claimant may establish "disability through his own testimony of pain or other subjective symptoms." Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). A claimant seeking to establish disability through his or her own testimony must show:
Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002) (per curiam). If the ALJ determines that the claimant has a medically determinable impairment that could reasonably produce the claimant's alleged pain or other symptoms, the ALJ must then evaluate the extent to which the intensity and persistence of those symptoms limit the claimant's ability to work. 20 C.F.R. §§ 404.1529(c)(1), 416.929(c)(1). In doing so, the ALJ considers a variety of evidence, including, but not limited to, the claimant's history, the medical signs and laboratory findings, the claimant's statements, medical source opinions, and other evidence of how the pain affects the claimant's daily activities and ability to work. Id. at §§ 404.1529(c)(1)-(3), 416.929(c)(1)-(3). "If the ALJ decides not to credit a claimant's testimony as to her pain, he must articulate explicit and adequate reasons for doing so." Foote, 67 F.3d at 1561-62. But the reasons provided by the ALJ may be implicit if the implication is sufficiently clear as to amount to a specific credibility finding. See id. The Court will not disturb a clearly articulated credibility finding that is supported by substantial evidence. See id. at 1562.
Here, Claimant argued that the ALJ erred by incorrectly evaluating Claimant's credibility. Doc. 17 at 17-22. Claimant argued that the reasons given by the ALJ are incomplete mischaracterizations of the testimony and evidence. Id. Specifically, Claimant argued that it was improper for the ALJ to cite the fact that Claimant lived with her disabled husband and grandson as a reason to discount Claimant's testimony. Id. at 18-21. Claimant further argued, without explanation, that the ALJ failed to properly apply the pain standard. Id. at 21-22. In response, the Commissioner argued that the ALJ properly described and applied the pain standard, and, in the alternative, that any alleged error was harmless, as the ALJ provided sufficient justifications for discrediting Claimant's testimony that were not challenged by Claimant. Id. at 22-29. The Court agrees with the Commissioner.
Although Claimant specifically argued that it was improper for the ALJ to cite the fact that Claimant lived with her disabled husband and grandson as a reason to discount Claimant's testimony, Claimant provided no specific arguments regarding the myriad other reasons offered by the ALJ for discrediting Claimant's testimony, thus waiving the arguments.
Regardless, the Court finds upon review that the ALJ provided valid reasons, supported by substantial evidence, for discrediting Claimant's testimony. For instance, the ALJ stated, in part, as follows:
R. 24 (italics added). Given Claimant's testimony, the Court finds that the foregoing is a valid reason, supported by substantial evidence, for discrediting Claimant's testimony.
Finally, the Court notes that Claimant, in making her arguments, failed to specifically reference or identify any of her own testimony. In other words, Claimant provided the Court with no indication of which testimony the ALJ allegedly improperly deemed lacked sufficient credibility. It is axiomatic that the claimant bears the burden of demonstrating that he or she is disabled. Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003). The failure of Claimant to identify which testimony the ALJ allegedly improperly discredited frustrates the Court's review of Claimant's arguments. As such, the Court finds that Claimant's argument attacking the ALJ's credibility determination does not provide a proper basis for the Court to reverse the ALJ's credibility determination.
Claimant argued that the ALJ committed reversible error by failing to include limitations from Plaintiff's alleged upper extremity impairments in the RFC. Doc. 17 at 29-30. Claimant argued that substantial evidence supports Claimant's alleged upper extremity limitations. Id. But the issue is not whether there is substantial evidence to support a purported limitation that the ALJ failed to include in the RFC. The issue is whether substantial evidence supports the ALJ's decision not to include the purported limitation in the RFC. See Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991) ("Even if we find that the evidence preponderates against the Secretary's decision, we must affirm if the decision is supported by substantial evidence.").
Here, the ALJ's decision is supported by substantial evidence, as the record contains substantial evidence that Claimant's upper extremity limitations were not as severe as alleged. See R. 456, 471, 488, 501, 554. Moreover, Claimant provided nothing but her own testimony to support her alleged upper extremity limitations. And, as previously explained, the Court finds that the ALJ properly discredited Claimant's testimony. Claimant did not cite to any medical records to support her allegation that she suffered from severe impairments of her upper extremities. Thus, to the extent Claimant was attempting to argue that the medical record contained substantial evidence of Claimant's upper extremity impairments, Claimant waived the argument.
Claimant argued that the ALJ "committed reversible error by finding that [Claimant] can perform her past work because the limitations supported by substantial evidence preclude her from performing her past work and direct that she be found disabled under the Medical Vocational Guidelines." Doc. 17 at 33. First and foremost, as previously discussed, the ALJ did not err in finding that Claimant could perform her past work. Further, Claimant's argument is perfunctory and included no authority supporting Claimant's position; except that Claimant made a general citation to Medical Vocational Guidelines Rules 201.12 and 201.14 and stated that Claimant met those guidelines given her age, education, skill level, exertional limitations, past work, manipulative limitations, need for an assistive device, and pain levels. As such, Claimant has waived the argument. See, e.g., Jacobus, 2016 WL 6080607, at *3 n.2 (stating that claimant's perfunctory argument was arguably abandoned).
Claimant argued, in a perfunctory manner, that the ALJ "committed reversible error by failing to properly evaluate [Claimant's] impairments in light of the date last insured." Doc. 17 at 34-35. Claimant argued, without explanation or citation to authority, that the ALJ had a duty to develop the record to be able to make an inference back to Claimant's date last insured, December 31, 2012.
SSR 83-20 provides, in part, as follows:
The foregoing language clearly contemplates a situation in which the ALJ has determined that the claimant is disabled, but is unable to determine when the claimant's disability began. That is not the case here, and, as such, Claimant's argument is without merit. See, e.g., Klawinski v. Comm'r of Soc. Sec., 391 F. App'x 772, 776 (11th Cir. 2010) ("We conclude that the ALJ did not contravene SSR 83-20 because the ALJ ultimately found that Klawinski was not disabled, and SSR 83-20 only required the ALJ to obtain a medical expert in certain instances to determine a disability onset date after a finding of disability."). Regardless, Claimant waived the argument by raising it in a perfunctory manner. See, e.g., Jacobus, 2016 WL 6080607, at *3 n.2 (stating that claimant's perfunctory argument was arguably abandoned)
Accordingly, it is