Brenda A. Wind v. Jo Anne B. Barnhart , 133 F. App'x 684 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-16371 JUNE 2, 2005
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D.C. Docket No. 03-00329-CV-3-RV-MD
BRENDA A. WIND,
Plaintiff-Appellant,
versus
JO ANNE B. BARNHART,
Commissioner of Social Security,
Defendant-Appellee.
__________________________
Appeals from the United States District Court
for the Northern District of Florida
_________________________
(June 2, 2005)
Before BLACK, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Plaintiff-Appellant Brenda A. Wind appeals through counsel the district
court’s order affirming the administrative law judge’s (“ALJ’s”) denial of Wind’s
applications for supplemental security income benefits (“SSI”), filed pursuant to
42 U.S.C. § 1383(c), and for disability insurance benefits (“DIB”), filed pursuant
to 42 U.S.C. § 405(g). Wind argues on appeal that the ALJ’s decision not to grant
benefits to her was not supported by substantial evidence because the ALJ
(1) erroneously failed to determine that Wind suffered from the “severe”
impairment of obesity, (2) failed to properly evaluate and weigh medical evidence,
(3) failed to recontact Wind’s treating physician, and (4) posed an improper
hypothetical question to the vocational expert (“VE”). For the reasons set forth
more fully below, we affirm the district court’s order.
In February 2000, Wind filed an application for DIB and a report, alleging
disability commencing February 1, 1997, based on depression and anxiety attacks,
and an application for SSI, based on an anxiety-related disorder. Both of her
applications were denied through the reconsideration level. Wind then requested a
hearing before an ALJ.
On December 18, 2001, at the time of the hearing, Wind was 46 years old;
weighed 245 pounds; and had a high school diploma, training to be a certified
nursing assistant, and some business school. Her past employment experience
2
included working as a nursing assistant and as a home attendant. Wind stated that
her doctor recommended that she stop working as a nursing aid in 1997, because
of her depression. Wind also stated that she was taking Zoloft to treat her
depression and her “bad panic attacks.”
Wind described her daily activities as including living in a house with her
15-year-old son, getting up at approximately 10 a.m., and going to bed at
approximately 11 p.m., although she had difficulty sleeping. She stated that she
“sometimes” did housework, cooking, washing dishes, and visiting with friends or
relatives. She also drove her vehicle occasionally, enjoyed reading fiction and
watching television, and sometimes went to church and walked for a few blocks.
On her counsel’s questioning, Wind stated that she occasionally had crying spells
from her nervousness. Wind also stated that she had high blood pressure, but that
she managed this condition with medication.
The medical evidence before the ALJ revealed that, in May 1999, Dr.
Cynthia Javellana, M.D., a psychiatrist, examined Wind on referral from Wind’s
primary care physician, Dr. Carmen DeLaRosa, M.D. As part of this examination,
Dr. Javellana observed that Wind (1) was neat and well-groomed; (2) appeared of
average intellect; and (3) had fair insight, judgment, and coping abilities; and
(4) had no acute physical distress. Dr. Javellana also found that, although Wind
3
was pleasant and cooperative, she appeared sad and tearful and acknowledged
feeling anxious, depressed, and helpless at times. Dr. Javellana diagnosed Wind
as suffering from dysthymic disorder (a chronic disturbance of mood characterized
by mild depression or loss of interest in usual activities) with anxiety symptoms.
In June 1999, the Commissioner directed Dr. A. Mitch Cooper, Ph.D, a
psychologist, to examine Wind. Wind informed Dr. Cooper that she had been
depressed and anxious “on and off all [her] life.” Wind also stated that, although
she had two to three panic attacks per day, these attacks recently had decreased in
frequency and intensity. Wind believed that this improvement, along with her
improved sleeping, was attributable to her taking Zoloft. Wind told Dr. Cooper
that, on a typical day, she preferred to stay at home alone, straightened her house
and did household chores, enjoyed making crafts and doing handiwork, sometimes
painted or visited yard sales, liked to read and watch television, and volunteered at
her church.
After completing his examination, Dr. Cooper determined that Wind was
alert and oriented, her recent and remote memory were intact, her thoughts were
logical and coherent with no indication of delusional material or bizarre content,
her mood appeared depressed and somewhat anxious, her affect was consistent
with her mood, she denied any suicidal ideation, and her capacity for insight and
4
judgment for daily living were fair. Dr. Cooper diagnosed Wind with depressive
disorder and panic disorder with mild agoraphobia; stated that her prognosis was
“guarded”; and recommended that she receive individual psychotherapy to
supplement her medication.
From July 1999 through April 2000, Dr. Javellana met briefly with Wind on
five occasions, during which meetings Dr. Javellana noted that Wind’s mental
status remained generally unchanged, assigned her a Global Assessment
Functioning (“GAF”) score of 551, and continued prescribing her Zoloft. In April
2000, the last time Wind met with Dr. Javellana, Wind complained of increased
episodes of anxiety and depression. Dr. Javellana, however, noted that Wind was
pleasant and cooperative, remained verbal and logical, denied delusions or
paranoia, was mildly anxious and depressed, and was competent to give informed
consent for treatment. Dr. Javellana again diagnosed Wind with dysthymic
disorder and mood disorder, secondary to chronic pain; assessed a GAF of 55; and
informed Wind that she would be transferring Wind’s case to a colleague for
future follow-up care.
1
GAF scores between 51 and 60 reflect moderate symptoms, including moderate
difficulty in social, occupational, or school settings. GAF scores between 61 and 70 reflect mild
symptoms, with some difficulty in social and occupational functioning. See American
Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders 34 (4th ed. 2000).
5
On June 20, 2000, Dr. Javellana completed a Residual Functional Capacities
(“RFC”) Form, opining that Wind suffered from moderate2 restrictions in her
(1) activities of daily living; (2) concentration, persistence, and pace; (3) ability to
understand, carry out, and remember instructions in a work setting; (4) ability to
respond to coworkers and supervision in a work setting; and (5) her ability to
perform simple and repetitive tasks. Dr. Javellana also determined that Wind had
a moderate to marked restriction in maintaining social functioning. In addition,
Dr. Javelanna indicated that Wind had not had episodes of deterioration or
decompensation at work.
On the other hand, in an identical form Dr. Javellana completed on
September 11, 2000, Dr. Javellana opined that Wind only suffered from moderate
restrictions in maintaining her social functioning, along with her concentration,
persistence, and pace. Also contrary to her June 2000 assessment, Dr. Javellana
determined that Wind suffered from marked restrictions in her activities of daily
living, her ability to respond to supervision in a work setting, and her ability to
perform repetitive tasks in a work setting. Moreover, Dr. Javellana opined that
2
The applicable form defines a “moderate” restriction as “an impairment which affects
but does not preclude the ability to function.” A “marked” restriction is “an impairment which
seriously affects ability to function.”
6
Wind had a GAF of 50 to 55, and that she was “unable to maintain work without
further stabilization and rehabilitation.”
In addition to the admission of this medical evidence, a VE testified at
Wind’s administrative hearing, stating that Wind’s past relevant work was as a
nursing assistant and a home attendant, both of which were medium, semi-skilled
work. The ALJ then asked the VE the following hypothetical question:
Assume I was to limit [Wind] to medium-type work . . . physically,
but I’m going to take into account that she has psychological and
emotional problems that will bring her to a limited but satisfactory, a
mild to moderate description of her ability to perform repetitive tasks
in a work setting, interact with supervisors, deal with work stresses,
maintaining attention and concentration; [inaudible] remember and
carry out instructions; and to relate predictably in social situations.
[Inaudible]. With those restrictions, would there be jobs in the job
[market]?
The VE replied that, although Wind could not perform her past relevant work, she
could perform the works of positions such as a laundry worker or a hand packager.
Moreover, when the ALJ asked the VE if this conclusion would change if he
assumed that Wind had a marked limitation in her ability to perform repetitive
tasks in a work setting and in interacting with supervisors, the VE responded that
these conditions “would preclude any work activity.”
The ALJ initially determined that Wind previously filed applications for
DIB and SSI, with a protective filing date of May 13, 1998, which were denied on
7
August 20, 1998, and applications for DIB and SSI, with a protective filing date of
December 14, 1998, which were denied on August 12, 1999. The ALJ noted that,
although these applications were eligible for reopening with a showing of good
cause and cause respectively, reopening was not warranted. The ALJ also
determined that, because Wind’s last applications were denied on August 12,
1999, the earliest date that she could be found disabled was August 13, 1999.
Thus, because Wind only was insured up to December 31, 1998, she was
precluded from obtaining DIB benefits.3
The ALJ next determined that Wind had severe impairments primarily due
to hypertension, depression, anxiety, and panic disorder, but that these severe
impairments, singly or in combination, did not meet or equal any of the listings.
After discussing Wind’s alleged limitations and medications, the ALJ found that
Wind had made a number of conflicting statements about her daily activities and
the severity of her limitations. The ALJ also determined that Wind’s subjective
complaints “far exceed[ed] what could reasonably be expected in light of the
objective findings.” In discussing this last point, the ALJ explained that (1) there
3
Wind has not challenged this determination on appeal. We, therefore, conclude that
any arguments on it are abandoned. See Access Now, Inc. v. Southwest Airlines Co., 385 F.3d
1324, 1330 (11th Cir. 2004) (issues not argued in initial brief are deemed abandoned).
Regardless, as the ALJ determined, a claimant only is eligible for DIB benefits if she
demonstrates disability on or before the last date for which she was insured. See 42 U.S.C.
§ 423(a)(1)(A).
8
were no objective findings supporting her complaints of chronic pain; and
(2) although Wind was obese and had hypertension, “there [was] no indication that
these impairments limit[ed] her to less than medium exertion,” and “[h]er primary
limitations [were] mental.”
The ALJ discussed that Dr. Cooper, as a consulting physician, had
examined Wind in August 1999, and that Wind had informed him that she was
having two or three panic attacks per day. Nevertheless, the ALJ determined that
this statement was in “sharp contrast” with a statement Wind had made three days
later that Zoloft was effective in treating her panic attacks, and with her statements
to Dr. Cooper that her panic attacks had become less frequent and less intense than
“previously when she was not taking medications.” The ALJ noted, as well, that
Wind’s credibility was at issue because, although Wind told Dr. Javellana in
January 2000, that she was suffering chronic back pain, Dr. DeLaRosa’s records
from that period did not show any reference to such pain complaints or to relevant
medications. Moreover, the ALJ generally discussed that Dr. Cooper had
determined that Wind had symptoms relating to her mental health limitations, but
he believed that Wind was responding well to treatment.
The ALJ then examined the two mental health assessments completed by
Dr. Javellana. The ALJ concluded that, although Dr. Javellana’s determination
9
that Wind was “unable to maintain work without further stabilization and
rehabilitation” was, in effect, a finding of “disability,” this finding was not binding
on the ALJ, pursuant to 20 C.F.R. §§ 404.1527(e), 416.927(e). The ALJ further
determined that, because Dr. Javellana’s last examination of Wind was in April
2000, and because Dr. Javellana’s notes from that meeting were generally
consistent with the June assessment, there was neither evidence to support the
September assessment, nor to explain the “dramatic difference in the two
assessments.” Thus, the ALJ concluded:
[T]here is no reason to believe that the September evaluation was
anything other than an aberration, based on a temporary exacerbation
of symptoms. They are not expected to continue at that level for more
than a short period of time. Therefore, the September assessment is
given little weight. The June assessment appears to provide a more
accurate evaluation of the claimant’s limitations.
The ALJ also stated that the opinions of the state agency physicians were
consistent with and lent further support to the June assessment.
Based on these credibility findings, the ALJ determined that Wind could not
return to her past relevant work as a nursing assistant or as a home attendant.
However, relying on the VE’s testimony that someone with Wind’s same
restrictions could perform such work as a laundry worker and a hand packager, the
ALJ determined that Wind could perform jobs that existed in significant numbers
10
in the national economy. Thus, the ALJ concluded that Wind was not disabled.
Wind appealed to the Appeals Council, which issued a denial of request for
review. Wind subsequently filed a civil action in the district court and a
supporting brief, raising the same issues as on appeal. The magistrate judge issued
a report, recommending that the ALJ’s decision be affirmed. Over Wind’s
objections, the district court adopted this recommendation.
Wind generally argues that the ALJ’s decision not to grant benefits was not
supported by substantial evidence. The social security regulations establish a five-
step evaluation process, which is used to determine both DIB and SSI claims. See
Phillips v. Barnhart, 357 F.3d 1232, 1237 (11th Cir. 2004). Under this evaluation
process, the ALJ must determine: (1) is the individual performing substantial
gainful activity; (2) does she have a severe impairment; (3) does she have a severe
impairment that meets or equals a [listed impairment]; (4) if not, can she perform
her past relevant work; and (5) based on her age, education, and work experience,
can she perform other work of the sort found in the national economy. Id.Our review in a Social Security case is the same as that of the district court.
Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996). We have explained that
[We] must review the agency’s decision and determine whether [the
agency’s] conclusion, as a whole, was supported by substantial
evidence in the record. Substantial evidence is something more than
11
a mere scintilla, but less than a preponderance. If the Commissioner’s
decision is supported by substantial evidence, this Court must affirm,
even if the proof preponderates against it. We may 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) (internal quotations and
marks omitted).
a. Whether the AlJ erred in failing to determine that Wind suffered
from the severe impairment of obesity
As a preliminary matter, Wind argues that the ALJ erred in not finding that
Wind established that she suffered from the severe impairment of obesity. Wind
asserts that, at a height of 5'5, her lowest weight, 223 pounds, constituted Level II
obesity, and her weight at the administrative hearing, 245 pounds, constituted
morbid obesity.
At the second step of the sequential-disability determination, the ALJ must
“consider the medical severity of [the claimant’s] impairments.” Phillips, 357
F.3d at 1237 (quoting 20 C.F.R. § 404.1520(a)(4)(ii)). In doing so, the ALJ must
determine whether the impairments, alone or in combination, “significantly limit”
the claimant’s “physical or mental ability to do basic work skills.” Phillips, 357
F.3d at 1237 (citing 20 C.F.R. § 404.1520(c)).4 An impairment should be
4
Although Phillips cites to § 404.1520(c), the regulation applicable for DIB benefits, and
this appeal involves 20 C.F.R. § 404.920(c), the regulation applicable for SSI benefits, we have
12
considered “not severe” only if “it is a slight abnormality which has such a
minimal effect on the individual that it would not be expected to interfere with the
individual’s ability to work, irrespective of age, education or work experience.”
Bridges v. Bowen, 815 F.2d 622, 625 (11th Cir. 1987) (citation omitted); see also
McDaniel, 800 F.2d at 1031 (defining claimant’s burden as mild). However, a
diagnosis or a mere showing of “a deviation from purely medical standards of
bodily perfection or normality” is insufficient; instead, the claimant must show the
effect of the impairment on her ability to work. McCruter v. Bowen, 791 F.2d
1544, 1547 (11th Cir. 1986).
In the instant case, Wind is arguing that the ALJ erred in not including
obesity in its list of her severe impairments. Assuming that Wind’s weight fell
within the applicable definition, obesity should be considered, among other
impairments, because it can cause further degradation of a claimant’s physical
capacity, especially in the presence of certain impairments. See Social Security
Ruling 02-1p. However, as the ALJ explained in his decision, the record contains
no evidence showing that Wind’s obesity affected her ability to perform medium
work-related activities. Thus, the ALJ did not err in concluding that this
concluded that these regulations involve the same sequential evaluation process and, thus, should
be analyzed in the same way. See McDaniel v. Bowen, 800 F.2d 1026, 1031 n.4 (11th Cir.
1986).
13
impairment was “severe.” See McCruter, 791 F.2d at 1547; see also Wilson v.
Apfel, 179 F.3d 1276, 1278 (11th Cir. 1999) (concluding that substantial evidence
supported the ALJ’s finding that the claimant’s occasional episodes of
hospitalization for sickle cell anemia did not demonstrate a “severe” impairment).
b. Whether the ALJ erred in failing to properly evaluate and weigh
evidence
Wind also argues that the ALJ erred in failing to give appropriate weight to
Dr. Javellana’s September 2000 assessment, which showed that she could not
engage in any substantial gainful employment. Wind contends that, in rejecting
the September 2000 assessment, the ALJ “clearly exceed[ed] his expertise and
act[ed] as a medical expert as well as a judge.” Wind argues that, because it is
difficult to evaluate mental impairments, the ALJ should have deferred to the
opinions of Dr. Javellana, who was both a psychiatrist and the only treating
physician who completed mental RFC assessments. Moreover, Wind asserts that
Dr. Javellana’s September 2000 findings were corroborated by Dr. Cooper’s
report, and that the ALJ erred in failing to state what weight he had assigned Dr.
Cooper’s opinion.
To the extent Wind is challenging the ALJ’s evaluation of Dr. Javellana’s
September 2000 assessment, in determining whether an individual is disabled, “the
14
testimony of a treating physician must be given substantial or considerable weight
unless ‘good cause’ is shown to the contrary.” Crawford v. Comm’r of Social
Security, 363 F.3d 1155, 1159 (11th Cir. 2004) (quotation omitted). Moreover,
the ALJ commits error if he substitutes his own uninformed medical evaluations
for those of a claimant’s treating physicians absent good cause, Graham v. Bowen,
786 F.2d 1113, 1115 (11th Cir. 1986), or if he fails to articulate clearly his reason
for according this evidence less weight, MacGregor v. Bowen, 786 F.2d 1050,
1053 (11th Cir. 1986).
Nevertheless, good cause to discredit a treating physician’s opinion on
disability or inability to work exists where the doctor’s opinion is not supported by
the evidence, is inconsistent with the physician’s own medical records, or merely
is conclusory. Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997).
“[C]hoosing between conflicting evidence is a task particularly suited to the fact
finder.” Landry v. Heckler, 782 F.2d 1551, 1554 (11th Cir. 1986). Indeed, “[t]he
commissioner may reject the opinion of any physician when the evidence supports
a contrary conclusion.” Bloodsworth v. Heckler, 703 F.2d 1233, 1240 (11th Cir.
1983).
Here, in a mental RFC assessment Dr. Javellana completed on September
11, 2000, Dr. Javellana opined that Wind only suffered from a moderate limitation
15
in her social functioning, concentration, persistence, and pace. Moreover, Dr.
Javellana determined that Wind suffered from marked restrictions in her activities
of daily living, her ability to respond to supervision in a work setting, and her
ability to perform repetitive tasks in a work setting. Dr. Javellana also opined that
Wind’s current GAD was 50 to 55, and that Wind was “unable to maintain work
without further stabilization and rehabilitation.”
However, in Dr. Javellana’s June 2000 assessment, she concluded that Wind
had only moderate restrictions in: her activities of daily living; her concentration,
persistence, and pace; her ability to understand, carry out, and remember
instructions in a work setting; and her ability to respond to coworkers in a work
setting and perform simple and repetitive tasks. Dr. Javellana’s conclusion in her
September 2000 assessment that Wind only suffered a moderate limitation in her
social functioning also inexplicably was contradicted by her determination in June
2000, that Wind had a marked limitation in this area. In addition, Dr. Javellana’s
treatment notes, from May 1999 through April 2000, reflected that, although Wind
was suffering from dysthymic disorder, depression, and from anxiety, she was
being treated with Zoloft and her mental status remained generally unchanged. In
fact, in April 2000, Dr. Javellana noted that Wind was pleasant and cooperative,
remained verbal and logical, denied delusions or paranoia, only was mildly
16
anxious and depressed, was competent to give informed consent for treatment, and
had a GAF score reflecting moderate symptoms.5
Furthermore, Dr. Javellana’s September 2000 assessment was contradicted
by Wind’s own statements to the examining physicians that she volunteered at her
church, straightened the house, performed household chores, made handicrafts,
painted, visited yard sales, read, and watched television. See Macia v. Bowen,
829 F.2d 1009, 1012 (11th Cir. 1987) (the ALJ may consider a claimant’s daily
activities when evaluating her subjective complaints and determining the issue of
RFC). Because Dr. Javellana’s conclusions in her September 2000 assessment
were inconsistent and not supported fully by her own treatment notes, the ALJ’s
determination that this assessment—which was completed approximately five
months after her last visit with Wind—was not entitled to significant weight was
supported by substantial evidence. See Lewis, 125 F.3d at 1440.
To the extent Wind also is arguing that the ALJ erred in failing to state what
weight he gave to Dr. Cooper’s opinion as a consulting physician, the ALJ
discussed that Dr. Cooper, as a consulting physician, had examined Wind in
5
We note, however, that, as the Commissioner concedes, the Commissioner has declined
to endorse the GAF scale for “use in the Social Security and SSI disability programs,” and has
indicated that GAF scores have no “direct correlation to the severity requirements of the mental
disorders listings.” See 65 Fed. Reg. 50746, 50764-65 (Aug. 21, 2000).
17
August 1999, and had believed that Wind was responding well to treatment but
continued to have some symptoms. The ALJ also discussed that Wind had told
Dr. Cooper that her panic attacks had become less frequent and less intense than
“previously when she was not taking medications.” Although the ALJ did not
explicitly state that he was finding credible Dr. Cooper’s assessment, this
determination was implicit from his reliance on Dr. Cooper’s opinion in
concluding both that Wind’s subjective complaints were not fully credible and that
Dr. Javellana’s June 2000 assessment was more accurate than her September 2000
assessment. See Dyer, 395 F.3d at 1210 (although a credibility determination
“must be obvious to the reviewing court,” we do not require “an explicit finding as
to credibility”).
In addition, although Dr. Cooper noted that Wind’s mental condition was
“guarded,” and that she would benefit from receiving individual psychotherapy to
supplement her medication, his findings as to her mental status were similar to
those contained in Dr. Javellana’s April 2000 report and her June 2000
assessment. Indeed, in finding that Dr. Javellana’s June 2000 assessment was
more credible, the ALJ noted, albeit in a conclusory fashion, that this finding was
supported by the opinion of the state agency consulting physicians. Thus, the ALJ
outlined his reasons for making credibility determination, including giving weight
18
to Dr. Cooper’s assessment and finding not credible Dr. Javellana’s September
2000 assessment, and because these reasons were based on objective evidence, the
ALJ’s decision was supported by substantial evidence in the record. See Lewis,
125 F.3d at 1440.
c. Whether the ALJ erred in failing to recontact Dr. Javellana
Wind argues that, instead of guessing why Dr. Javellana’s September 2000
assessment differed from her previous assessment, the ALJ had the duty to
recontact this expert for clarification. “It is well-established that the ALJ has a
basic duty to develop a full and fair record.” Ellison v. Barnhart, 355 F.3d 1272,
1276 (11th Cir. 2003) (citing 20 C.F.R. § 416.912(d)); see also Graham v. Apfel,
129 F.3d 1420, 1422 (11th Cir. 1997) (explaining that a hearing before an ALJ is
not an adversarial proceeding). Indeed, the ALJ must develop the facts fully and
fairly and probe conscientiously for all the relevant information, even where a
claimant is represented by counsel. Cowart v. Schweiker, 662 F.2d 731, 735 (11th
Cir. 1981).
Moreover, it is reversible error for an ALJ not to order a consultative
examination when such an evaluation is necessary to make an informed decision.
Reeves v. Heckler, 734 F.2d 519, 522 n.1 (11th Cir. 1984). An ALJ, however, is
not required to seek additional independent expert medical testimony before
19
making a disability determination if the record is sufficient and additional expert
testimony is unnecessary. See Wilson, 179 F.3d at 1278.
As discussed above, Wind generally contends that, instead of guessing at a
reason for the inconsistencies in Dr. Javellana’s two assessments, the ALJ should
have recontacted Dr. Javellana to clarify which of her findings gave rise to this
inconsistency. However, the record does not reflect that Dr. Javellana examined,
much less made any additional findings, between her assessments in June and
September 2000. Moreover, Wind failed to produce evidence showing that it was
necessary for the ALJ to order another evaluation before making his decision. See
Ellison, 355 F.3d at 1276 (“the claimant bears the burden of proving that [s]he is
disabled, and, consequently, [s]he is responsible for producing evidence in support
of [her] claim”). Thus, the court did not err in not recontacting Dr. Javellana.
d. Whether the ALJ posed a proper hypothetical question to the
vocational expert
Last, Wind argues that the ALJ erred in relying on the VE’s opinion in
determining her RFC because the ALJ failed to ask the VE a hypothetical question
that comprehensively described her vocational situation. Wind specifically
contends that, in posing this hypothetical question, the ALJ’s wording (1) was
confusing; (2) did not reflect the severity of Wind’s impairments, even as the ALJ
20
found them to exist; and (3) was not supported by the medical evidence. Wind
also asserts that, this error was not harmless because, had the VE been informed
that Wind had “moderate” limitations, instead of “mild to moderate” or a “limited
but satisfactory” ability to work, the VE may have responded differently.
If a claimant is unable to do past relevant work, as was the case here, “the
examiner proceeds to the fifth and final step of the evaluation process to determine
whether in light of the [RFC], age, education, and work experience the claimant
can perform other work.” Wilson v. Barnhart, 284 F.3d 1219, 1227 (11th Cir.
2002). We further explained in Wilson:
The ALJ must articulate specific jobs that the claimant is able to
perform, and this finding must be supported by substantial evidence,
nor mere intuition or conjecture. If non-exertional impairments exist,
the ALJ may use Medical-Vocational Guidelines as a framework to
evaluate vocational factors, but must also introduce independent
evidence, preferably through a [VE’s] testimony, of existence of jobs
in the national economy that the claimant can perform.
Id. (internal citations omitted). Moreover, as both parties agree, “for a [VE’s]
testimony to constitute substantial evidence, the ALJ must pose a hypothetical
question which comprises all of the claimant’s impairments.” Id.In arguing that the ALJ posed improper hypothetical questions, Wind cites
to Pendley v. Heckler, 767 F.2d 1561 (11th Cir. 1985). In Pendley, we examined a
case involving a hypothetical question in which the ALJ described the claimant’s
21
physical impairment, but did not ask the expert to assume the claimant’s anxiety or
depression, both of which the ALJ found to be “severe impairments limiting the
claimant’s ability to work.” Pendley, 767 F.2d at 1562. We reversed and
remanded, based on our determination that we could not assume that the VE
would have given the same answer had the ALJ instructed him to consider all of
the appellant’s severe impairments. Id. at 1563.
In the instant case, the ALJ similarly determined that the claimant suffered
from, among other severe impairments, depression and anxiety. However, unlike
the facts in Pendley, the ALJ instructed the VE in his first hypothetical question to
assume that Wind had “psychological and emotional problems that [would] bring
her to a limited but satisfactory, a mild to moderate description of her ability to
perform [certain work tasks].” Moreover, despite that the ALJ found that Wind’s
relevant mental limitations were “moderate,” his use of the words “limited but
satisfactory” and “mild to moderate” did not mis-characterize the degree of Wind’s
mental limitations. As discussed above, the June 2000 assessment on which the
ALJ relied in determining that Wind had “moderate” restrictions specifically
defined “moderate” restrictions as “an impairment which affects but does not
preclude the ability to function.”
22
Furthermore, in posing his second hypothetical question, the ALJ explicitly
distinguished between “moderate” and “marked” limitations and established that,
if Wind’s mental limitations were “marked,” she would not have been able to
perform any job in the national economy. The ALJ, therefore, posed a
hypothetical question that accurately comprised all of Wind’s impairments. Thus,
the ALJ properly relied on the VE’s testimony as substantial evidence. See
Wilson, 284 F.3d at 1227
In sum, the ALJ did not err in (1) failing to determine that Wind’s obesity
was a “severe impairment,” (2) evaluating the opinions of Dr. Javellana and Dr.
Cooper, (3) not recontacting Dr. Javellana, and (4) posing hypothetical questions
to the VE. Accordingly, we conclude that the district court properly determined
that the ALJ’s decision not to grant benefits to Wind was supported by substantial
evidence. We, therefore, affirm the district court’s order affirming the ALJ’s
decision.
AFFIRMED.
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