Patricia C. Coley v. Commissioner of Social Security ( 2019 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-11954
Non-Argument Calendar
________________________
D.C. Docket No. 4:17-cv-00040-CDL-MSH
PATRICIA C. COLEY,
Plaintiff-Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
________________________
(May 3, 2019)
Before TJOFLAT, JORDAN, and ANDERSON, Circuit Judges.
PER CURIAM:
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Patricia Coley appeals the district court’s order affirming the administrative
law judge’s (“ALJ”) denial of disability insurance benefits, pursuant to 42 U.S.C.
§ 405(g). On appeal, Coley first argues that the ALJ’s conclusion that her
impairments did not meet or medically equal a listed impairment was not
supported by substantial evidence because the ALJ ignored that she required
oxygen on a constant basis and that her sleep apnea led to extreme drowsiness and
narcolepsy. Second, Coley argues that substantial evidence did not support the
ALJ’s conclusion that she had the residual functional capacity (“RFC”) for
sedentary work because the ALJ improperly: (1) determined that her testimony was
not credible; (2) failed to consider all of her medical conditions; (3) considered her
conservative treatment; and (4) gave only limited weight to the opinions of
Dr. Alphonza Vester and Dr. Curtis Clark. Finally, Coley argues that the ALJ was
biased against her based on a disagreement with counsel about the untimely filing
of evidence on the morning of the hearing.
I.
In social security appeals, we review the decision of an ALJ as the
Commissioner of Social Security’s (“the Commissioner”) final decision when the
ALJ denies benefits and the Appeals Council denies review of the ALJ’s decision.
Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001). We review de novo the
legal principles upon which the ALJ’s decision is based, but the ALJ’s factual
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findings are conclusive if supported by substantial evidence. Ingram v. Comm’r of
Soc. Sec., 496 F.3d 1253, 1260 (11th Cir. 2007). “Substantial evidence is more
than a scintilla and is such relevant evidence as a reasonable person would accept
as adequate to support a conclusion.” Crawford v. Comm’r of Soc. Sec., 363 F.3d
1155, 1158 (11th Cir. 2004) (quotation marks omitted). Even if the evidence
preponderates against the factual findings made by the Commissioner, we must
affirm if the decision reached is supported by substantial evidence. Ingram, 496
F.3d at 1260. We will not decide facts anew, reweigh the evidence, or substitute
our judgment for that of the Commissioner. Dyer v. Barnhart, 395 F.3d 1206,
1210 (11th Cir. 2005).
There is a five-step process for determining whether a claimant has met the
burden of proving her disability. Doughty, 245 F.3d at 1278. To receive disability
benefits, the claimant must establish at the first step that she is not undertaking
substantial gainful activity. Id. At step two, the claimant must establish that she
has a severe impairment or combination of impairments. Id. At step three, a
claimant will be considered disabled without consideration of age, education, and
work experience if she establishes that her impairment meets one of the listed
impairments found in the regulations. Id. At step four, if the claimant could not
establish the existence of a listed impairment, she must establish that her
impairment prevents her from performing her past relevant work. Id. Finally, at
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step five, the ALJ assesses the claimant’s residual functional capacity (“RFC”),
age, education, and past work experience to determine whether she can perform
work other than her past relevant work. Id.
The Listing of Impairments describes, for each of the major body systems,
impairments that are considered severe enough to prevent a person from doing any
gainful activity. 20 C.F.R. § 404.1525(a). To “meet” a listing, a claimant must
have a diagnosis included in the listings and must provide medical reports
documenting that the conditions meet the specific criteria of the listings and the
duration requirement. Id. § 404.1525(a)-(d). To “equal” a listing, the medical
findings must be “at least equal in severity and duration to the criteria of any listed
impairment.” Id. § 404.1526(a). If a claimant has more than one impairment, and
none meets or equals a listed impairment, then the Commissioner reviews the
impairment’s symptoms, signs, and laboratory findings to determine whether the
combination is medically equal to any listed impairment. Id. §§ 404.1526(b)(3),
404.1529(d)(3). The claimant has the burden of proving that an impairment meets
or equals a listed impairment. Barron v. Sullivan, 924 F.2d 227, 229 (11th Cir.
1991).
“A passing reference to an issue in a brief is not enough, and the failure to
make arguments and cite authorities in support of an issue waives it.” Hamilton v.
Southland Christian Sch., Inc., 680 F.3d 1316, 1319 (11th Cir. 2012).
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Here, Coley has waived her argument that her sleep apnea and use of oxygen
met or medically equaled a listed impairment because she has not cited any
authority or evidence to support such a conclusion. See Hamilton, 680 F.3d at
1319. In any event, the ALJ did consider both her breathing problems and her
sleep apnea in determining that her impairments did not meet a listed impairment.
First, although the ALJ did not discuss Coley’ s use of oxygen directly, he did
address her respiratory problems and concluded she had not met the listings for
either asthma or COPD. Second, the ALJ explicitly addressed Coley’s
sleep apnea and concluded that it did not meet the listing for sleep apnea. Thus,
Coley’s claim that the ALJ did not consider these impairments is belied by the
record. Further, although the ALJ did not explicitly state or explain why Coley
also failed to show that her medical impairments did not medically equal a listed
impairment, Coley has made no argument about this issue on appeal or indicated
how her medical impairments medically equal a listed impairment.
II.
If the claimant has a severe impairment that does not meet or equal the
severity of a listed impairment, the ALJ proceeds to the fourth step and assesses
the claimant’s RFC, which measures whether a claimant can perform past relevant
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work, despite her impairments. See 20 C.F.R. § 404.1520(e)-(f). Jobs are
classified as sedentary, light, medium, heavy, and very heavy, depending on the
physical exertion requirements of the work. Id. § 404.1567. Sedentary work can
require lifting up to ten pounds at a time and occasionally lifting or carrying light
items, such as small tools. Id. § 404.1567(a). A certain amount of walking and
standing may also be necessary, even though sedentary jobs are defined as jobs
involving sitting. Id.
“To support a conclusion that [the claimant] is able to return to her past
work, the ALJ must consider all the duties of that work and evaluate her ability to
perform them in spite of her impairments.” Lucas v. Sullivan, 918 F.2d 1567, 1574
n.3 (11th Cir. 1990). Generally, vocational expert testimony is not necessary to
determine whether a claimant can perform her past relevant work. Id. at 1573 n.2.
The claimant bears the burden of demonstrating that she cannot return to her past
relevant work. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005).
The ALJ must state with particularity the weight given to different medical
opinions and the reasons for doing so. Winschel v. Comm’r of Soc. Sec., 631 F.3d
1176, 1179 (11th Cir. 2011). However, the ALJ is not required to specifically
address every aspect of an opinion or every piece of evidence in the record. See
Dyer, 395 F.3d at 1211. The ALJ is not required to use particular phrases or
formulations, or cite to particular regulations or cases, as long as the court can
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determine what statutory and regulatory requirements he applied. Jamison v.
Bowen, 814 F.2d 585, 588-89 (11th Cir. 1987).
The opinion of a treating physician must be given substantial or considerable
weight unless good cause is shown to the contrary. Winschel, 631 F.3d at 1179.
Good cause exists where the treating physician’s opinion was not supported by the
evidence, was conclusory, was inconsistent with the physician’s own medical
records, or where the evidence supported a contrary finding. Id. The ALJ may
discount a medical opinion that appears to be based primarily on the claimant’s
subjective complaints. See Crawford, 363 F.3d at 1159. The ALJ may consider
personal observations of a claimant’s appearance and demeanor when evaluating
symptoms. Norris v. Heckler, 760 F.2d 1154, 1157-58 (11th Cir. 1985). When the
ALJ states specific reasons for declining to give the opinion of a treating physician
controlling weight and those reasons are supported by substantial evidence, there is
no reversible error. Moore, 405 F.3d at 1212.
The opinion of an examining physician is generally entitled to more weight
than the opinion of a non-examining physician. Broughton v. Heckler, 776 F.2d
960, 961-62 (11th Cir. 1985). The opinion of a non-examining physician does not
constitute the good cause needed to reject a treating physician’s opinion. Id.
Opinions on issues such as whether the claimant is disabled and the claimant’s
RFC are not medical opinions and are reserved to the Commissioner. 20 C.F.R.
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§ 416.927(d). Opinions on issues reserved to the Commissioner, even when
offered by a treating source, are not entitled to any special significance. Id.
§ 416.927(d)(3).
A three-part “pain standard” applies when a claimant attempts to establish
disability through her own testimony of pain or other subjective symptoms. Wilson
v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002). The pain standard requires
evidence of an underlying medical condition and either (1) objective medical
evidence that confirms the severity of the alleged pain arising from that condition
or (2) that the objectively determined medical condition is of such a severity that it
can be reasonably expected to give rise to the alleged pain. Id. If the medically
determinable impairments reasonably could be expected to cause the alleged
symptoms, the ALJ must evaluate the intensity and persistence of the symptoms to
determine whether the subjective complaints are credible. 20 C.F.R.
§ 416.929(c)(1). A claimant’s daily activities may be considered in evaluating and
discrediting complaints of disabling pain. Harwell v. Heckler, 735 F.2d 1292,
1293 (11th Cir. 1984).
If the ALJ decides not to credit the disability claimant’s testimony as to her
pain, the ALJ must articulate explicit and adequate reasons for that decision. Foote
v. Chater, 67 F.3d 1553, 1561-62 (11th Cir. 1995). An ALJ’s clearly articulated
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credibility finding supported by substantial evidence in the record will not be
disturbed by a reviewing court. Id. at 1562.
Although credibility determinations are reserved to the ALJ, we have
rejected the use of “sit and squirm” jurisprudence, where the ALJ creates his own
criteria for measuring pain and considers only objective medical evidence to
evaluate a claimant’s testimony about pain. Johns v. Bowen, 821 F.2d 551, 557
(11th Cir. 1987). Moreover, the ALJ cannot substitute his opinion for that of a
physician or vocational expert. Freeman v. Schweiker, 681 F.2d 727, 731 (11th
Cir. 1982). “[A] claimant’s failure to adhere to prescribed treatment cannot be
grounds for denial of [social security] benefits when the reason for such failure is
beyond the claimant’s control.” Lucas, 918 F.2d at 1574.
If the claimant cannot do her past relevant work, the ALJ proceeds to the
fifth step of the evaluation to determine whether, given her RFC, age, education,
and work experience, she can complete other work. Wilson, 284 F.3d at 1227.
The testimony of a vocational expert is only required to determine whether the
claimant’s RFC permits her to do other work after she has met her initial burden of
showing that she cannot do past work. Schnorr v. Bowen, 816 F.2d 578, 582 (11th
Cir. 1987). “In order for a vocational expert’s testimony to constitute substantial
evidence, the ALJ must pose a hypothetical question that comprises all of the
claimant’s impairments.” Winschel, 631 F.3d at 1180 (quotation marks omitted).
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Here, substantial evidence supports the ALJ’s conclusion that Coley retained
the RFC to do sedentary work because the ALJ articulated specific and adequate
reasons for his credibility determination, considered all of her medical
impairments, did not misuse the vocational expert’s testimony, and properly
reduced the weight given to the opinions of Dr. Clark and Dr. Vester.
As to her argument that the AU failed to apply the proper pain standard after
concluding that her testimony was not entirely credible, the ALJ articulated
specific and adequate reasons for his credibility determination. See Foote, 67 F.3d
at 156 1-62. First, the ALJ correctly noted that the record contained no medically
significant events that corresponded with Coley’s alleged onset date of December
2011. The only medical evidence that Coley submitted from December 2011 was
a follow-up appointment with Dr. DeClue, where no complaint was recorded, her
vitals were not taken, and the notes indicated only that the appointment was for
“unspecified procedures and aftercare.” Second, substantial evidence supported
the ALJ’s conclusion that Coley’s claim that she needed a cane was unpersuasive
because her medical records did not mention the need for a cane. Prior to Dr.
Vester’s examination in October 2015, the only mention of a cane in the record
was by Dr. DeClue in October 2010. Coley’s other records consistently indicated
that she had a normal gait and never mentioned a cane. Although Coley told Dr.
Vester that she had used a cane since 2006 and that it was prescribed by a doctor,
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there is no evidence in the record supporting that statement. Crawford, 363 F.3d at
1159 (stating that the ALJ may discount a medical opinion that appears to be based
primarily on the claimant’s subjective complaints).
Third, substantial evidence supported the ALJ’s conclusion that Coley’s
claim of difficulty sleeping was unpersuasive because the sleep study conducted
after Coley began her BiPAP regimen showed acceptable sleep efficiency and
Coley reported in April 2015 that she slept all night without difficulty and was
rested and well-refreshed. Fourth, substantial evidence supported the ALJ’ s
conclusion that Coley’s claim that she needed 24-hour care from her husband was
unpersuasive because Coley also testified that her husband worked 16 hours a
week and was not with her every day. Fifth, substantial evidence supported the
ALJ’s conclusion that Coley’s testimony that she was only comfortable when lying
in bed with a heating pad was unpersuasive because Coley also testified that she
often went with her husband to work, where she sat in a chair and read magazines,
watched TV, or fell asleep. Harwell, 735 F.2d at 1293 (stating that claimant’s
daily activities may be considered in evaluating and discrediting complaints of
disabling pain). Finally, substantial evidence supported the ALJ’ s conclusion that
Coley’s testimony regarding extreme fatigue was unpersuasive because, with a
couple of exceptions, Coley consistently denied over-sedation or side effects from
her medications in the medical records. Moreover, the ALJ properly considered
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that Coley stayed awake at the hearing and had no difficulties answering the
questions. Norris, 760 F.2d at 1157-58 (stating that the ALJ may consider personal
observations of a claimant when evaluating symptoms). Accordingly, the
ALJ provided a clearly articulated credibility finding with substantial supporting
evidence. See Foote, 67 F.3d at 1562.
As to Coley’s argument that the ALJ improperly failed to consider her
history of pulmonary emboli, edema, hypertension, and deep vein thrombosis in
his RFC, the ALJ did explicitly consider some of those medical issues. The ALJ
specifically concluded that an RFC for sedentary work accommodated Coley’s
hypertension and history of pulmonary emboli. Although the ALJ did not
specifically mention edema and deep vein thrombosis in his RFC analysis, he
included these in the list of Coley’s impairments during step two of the sequential
evaluation. Substantial evidence supported the ALJ’s failure to include these in his
RFC analysis because there was no evidence in the record indicating that Coley
was limited by either edema in her legs or her history of deep vein thrombosis.
Although the medical records routinely indicated that Coley had edema in her
lower extremities, they never expanded on any effects the edema had on Coley.
Similarly, all medical tests for deep vein thrombosis in the record were negative,
leaving only a single 2007 occurrence. As for Coley’s argument that the ALJ
misused testimony from the vocational expert because his initial hypothetical at the
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hearing did not include symptoms of drowsiness and extreme fatigue, the
testimony of a vocational expert was only required at step five of the sequential
evaluation, after she had met her initial burden of showing that she could not do
past work at step four. Schnorr, 816 F.2d at 582. The ALJ concluded that Coley
could do past work and never reached step five of the analysis. Thus, the
vocational expert’s testimony regarding the ALJ’s hypothetical was not relevant to
the RFC determination.
Finally, as to Coley’s argument that the ALJ improperly reduced the weight
given to the opinions of Dr. Clark and Dr. Vester, the ALJs decision to do so was
supported by substantial evidence. First, substantial evidence supported the ALJ’s
decision to give only some weight to Dr. Clark’s opinion that Coley could not
work due to shortness of breath, a history of pulmonary emboli, and osteoarthritis
because the medical tests in the record relating to those issues were largely
unremarkable or denoted as “mild.” Winschel, 631 F.3d at 1179 (stating that good
cause exists to give less than substantial weight to a treating physician’s opinion
when it was not supported by the evidence). Second, substantial evidence
supported the ALJ’s decision to give little weight to Dr. Vester’s opinion regarding
Coley’s limitations because it was not supported by the evidence, which instead
supported a contrary finding. Winschel, 631 F.3d at 1179. Although Dr. Vester
applied extensive limitations to Coley, the medical records indicated that she
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usually had a normal gait, had only minimal back treatment and mild MRJ
findings, and had full hand grip strength and upper extremity range of motion.
To the extent that Coley argues that the ALJ improperly considered her
conservative treatment history because her doctors recommended against more
aggressive treatment, given her history of pulmonary emboli, the medical records
did not indicate that Coley had such a limitation. Similarly, to the extent that
Coley argues that the ALJ improperly considered her conservative treatment
history because she could not afford more aggressive treatment, the medical
records did not indicate that more aggressive treatment was necessary.
Specifically, once beginning her BiPAP regimen for her sleep apnea, she reported
that she slept through the night and was rested and well-refreshed. After beginning
to take pain medication for her back, Coley reported that she was feeling better.
Thus, the ALJ did not inappropriately consider Coley’s conservative treatment
history.
III.
The Social Security Act requires that a claimant’s hearing be both full and
fair. Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996). The ALJ plays a
crucial role in the disability review process and must both develop a full and fair
record and carefully weigh the evidence, giving individualized consideration to
each claim. Id. at 1401. Because the ALJ’s decision will typically be the final
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word, given the standard of review, the ALJ’s impartiality is “integral to the
integrity of the system.” Id. Thus, the ALJ must not conduct a hearing if he is
prejudiced or partial with respect to any party. Id. at 1400 (quoting 20 C.F.R.
§ 404.940). A presumption exists that judicial and quasi-judicial officers such as
ALJs are unbiased. See Schweiker v. McClure, 456 U.S. 188, 195 (1982). The
claimant may rebut this presumption by a showing of conflict of interest or some
other specific reason for disqualification, but generalized assumptions are
insufficient. Id. at 195-96. The party asserting a disqualifying interest bears the
ultimate burden of establishing that interest. Id. at 196.
Here, Coley has failed to demonstrate that the ALJ was biased in handling
her case. Coley has not demonstrated that the ALJ failed to develop a full and fair
record or carefully weigh the evidence. Miles, 84 F.3d at 1401. Coley argues that
the ALJ failed to properly weigh the medical opinions in the record, but, as noted
above, the ALJ did not err in the weight assigned to the Dr. Vester’s medical
opinion. Further, although the ALJ showed some annoyance at counsel's late filing
of medical records at the hearing, he assured Coley that he would consider
everything that was in the record. Coley points to no other specific instance
of bias in her case, and generalized assumptions that the ALJ must have been
biased because he found that she was not disabled are not enough to overcome the
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presumption that the ALJ was unbiased. Schweiker, 456 U.S. at 195-96.
Accordingly, she has not established that the ALJ was biased against her.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
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