Sherry Smith v. Social Security Administration , 272 F. App'x 789 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
April 3, 2008
No. 07-13022 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-04659-CV-IPJ
SHERRY SMITH,
Plaintiff-Appellant,
versus
SOCIAL SECURITY ADMINISTRATION,
Commissioner, Michael J. Astrue,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(April 3, 2008)
Before BIRCH, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
Sherry Smith appeals the district court’s order affirming the Commissioner’s
denial of her application for disability insurance benefits, pursuant to 42 U.S.C.
§ 405(g). On appeal, Smith first argues that the Vocational Expert’s (“VE”)
testimony did not constitute substantial evidence because the Administrative Law
Judge’s (“ALJ”) hypothetical question to the VE assumed that Smith could
perform sedentary work and did not account for any level of pain or her other
limitations. Smith also contends that the ALJ improperly disregarded the opinion
of Dr. Jose Oblena, a consulting physician, who reported that her constant pain
would diminish her capacity to work, and that the ALJ improperly substituted his
own opinion in place of Dr. Oblena’s opinion. Second, Smith maintains that the
Appeals Council (“AC”) failed to consider the new evidence she submitted to it
because, if it had considered the new evidence, it would have granted review
because the evidence would likely change the ALJ’s decision. Third, Smith
argues that the district court erred by requiring her to show good cause to submit
new evidence to the AC. Fourth, Smith argues that, because the new evidence she
submitted showed she was eligible for benefits under certain listings, the district
court erred by failing to consider the new evidence, by not remanding the case to
the AC, and by failing to consider the new evidence in determining whether the
ALJ’s decision was based on substantial evidence. After review, we AFFIRM.
2
I. BACKGROUND
Smith applied for a period of disability and disability insurance benefits,
alleging a disability onset date of 17 July 2001. Her application was denied, and
she requested further administrative review. A hearing was held before an ALJ,
who denied benefits to Smith. Smith filed a request for review with the Appeals
Council (“AC”) and submitted additional evidence. The AC denied Smith’s
request for review. Smith then filed suit in the district court, and the court affirmed
the ALJ’s decision. Smith also filed a motion to remand on 5 September 2007,
which we held in abeyance to allow her to file a Rule 60(b) motion, which was
denied on 14 November 2007. We denied Smith’s motion to remand on 3
December 2007.
At the hearing before the ALJ, Smith testified that she was 43 years old, had
completed high school, and had received a clerk-typist certificate from a technical
college. She claimed to be unable to work because she could not sit, stand, or lift
things, and she needed to lay in bed during the day. These limitations resulted
from a back injury and back surgery related to that injury. She complained that her
back pain and leg problems did not improve after her surgery, that her range of
motion was limited, and that bending over increased her pain. She also
complained of pain spasms in her back and foot, burning in her left leg, and
3
numbness in her left foot. She stated she had constant pain, and intermittent
stabbing pain, but that a transcutaneous electrical nerve stimulator (“TENS”) unit
helped some. She stated that on a good day her pain would be a four or five out of
ten, and on a bad day, which were about four out of every seven days, her pain
would be nine and a half to ten out of ten. In addition, she described a broken
ankle and knee pain. Smith also testified that she was depressed and that she did
not want to get out of bed, had a fear of facing people, and experienced panic
attacks. She had problems with insomnia and slept an average of four hours a
night, a problem that she attributed to her back pain and depression, but she stated
that Trazodone helped her. She claimed that her pain and depression had worsened
since January 2004.
Regarding her limitations, Smith testified that she could walk up one aisle at
the grocery store before needing to stop and sit down and could only stand for
three minutes before experiencing severe pain. She could only sit for about ten
minutes before having to shift around. She could only lift a can of soda, and lifting
a gallon of milk induced pain. She could wash up to three dishes at a time before
needing to sit down, and she could fold clothes but had to move around after
folding three or four items. She needed to lay down during the day for an average
of 20 minutes of rest, 8 times a day. She was able to drive a little bit. The side-
4
effects of her medications had a significant negative impact on her daily life. Her
typical day involved taking pain medication, doing stretches in bed, doing chores
like folding towels and washing a couple of dishes, sitting down, and watching
some television.
The medical records before the ALJ showed that Smith injured her back
when lifting oxygen tanks in July 2001. This injury resulted in pain in her left hip
and calf extending into her foot. She was seen by Dr. C. H. McCrimmon of
Anniston Orthopaedic Associates, P.A. for her pain. A July 2001 MRI showed she
had an “[a]symmetric L4-5 left lateral disc protrusion extending into caudal left
L4-5 neural foramen[,]” “[d]esiccation of the L5-S1 disc without evidence of
spondylosis[,]” and “L4-5 and L5-S1 facet osteoarthritic changes.” R2 at 381. Dr.
McCrimmon referred her to a neurosurgeon because of her continued complaints
of pain.
Dr. Charles Clark of Neurosurgical Associates, P.C., became Smith’s
treating neurologist in October 2001. On 28 November 2001, Dr. Clark performed
a lumbar diskectomy (surgical removal of an intervertebral disk in the part of the
spine between the ribs and pelvis) for a herniated L4-5 lumbar disc. After a
follow-up examination on 20 December 2001, Dr. Clark concluded that she was
doing reasonably well and recommended exercises and a return to light duty in
5
several weeks with a 20-pound weight lifting restriction. On 15 January 2002,
Smith had returned to desk work and was doing extremely well with no complaints
and she was tolerating physical therapy. Dr. Clark found that she had occasional
paresthesias (a sensation of pricking, tingling, or creeping on the skin usually
associated with injury or irritation of a sensory nerve or nerve root) in her left foot,
but that it was improving. He anticipated maximum medical improvement within
four months and indicated that Smith could return to work provided she did not
engage in excessive bending, stooping, or lifting of over 25 pounds.
Smith began physical therapy in January 2002. The progress notes indicate
that she had good and bad days, continued pain, and some difficulty sleeping. An
April 2002, discharge summary indicated that she partially achieved her initial
goals, had a significant increase in strength and range of motion, but continued to
complain of high levels of pain. A 30 April 2002 report from Dr. Clark indicated
that Smith complained of persistent lower back pain extending into her left hip and
leg, which had been present for six weeks. She had good strength in both legs, but
experienced some left hip pain when raising her leg. An MRI in May 2002 showed
“no evidence of disc herniation, central canal or neural foraminal stenosis” at L3-4,
“[d]egenerative changes at L5-S1 with an annular tear in the posterior midline of
the disc space and a mild associated annular bulge” and enhancing scar tissue at
6
L4-5, but no evidence of recurrent or residual disc herniation. Id. at 122. As of 24
June 2002, Dr. Clark stated that Smith could not return to work. On 30 October
2002, Dr. Clark indicated that Smith had not returned to work, that epidural blocks
and physical therapy did not provide lasting relief, and that he could offer her
nothing else from a surgical standpoint.
Between June and October 2002, Smith received treatment at Quality of Life
Health Services, Inc. (“Quality of Life”) for a variety of problems including
chronic low back pain, hypothyroidism (deficient activity of the thyroid gland),
allergies, lumbar disc disease, and high blood pressure. On her medical history
form, Smith indicated that she could dress herself, make her own meals, and do her
own shopping. Smith had a consultive examination with Dr. Jose Oblena on 3
December 2002. She reported constant hip and leg pain, which was worse on her
left side, and which she rated at a six out of ten on the pain scale. She further
indicated that she could not sit or stand for a long time, but that her medications,
Flexeril and Lortab, had eased her pain a little. She was in no acute distress and
the strength of her major muscle groups was five out of five with no atrophy. Dr.
Oblena commented that Smith “will have difficulty finding and keeping a job due
to her constant pain.” Id. at 242.
On 9 January 2003, a DDS physician performed a physical residual
7
functional capacity (“RFC”) assessment of Smith. The assessment found that she
could occasionally lift or carry 20 pounds and could frequently lift or carry 10
pounds. The assessment indicated that she could stand, walk, or sit for
approximately six hours in an eight-hour workday, and she could push or pull with
unlimited frequency. The report further indicated that she could balance, stoop,
kneel, crouch, and crawl occasionally. The report provided that Smith reported
severe pain in her back, but concluded that “claimant[’]s symptoms are deemed
partially credible.” Id. at 252.
Dr. Vance Moore and the Oxford Family Practice provided Smith’s primary
care from 1981 to April 2003. Their records primarily contain lab results and x-ray
requests and results. Her listed diagnoses as of April 2003 included pharyngitis
(inflammation of the part of the digestive and respiratory tracts situated between
the cavity of the mouth and the esophagus), history of allergic rhinitis
(inflammation of the mucous membrane of the nose), sinusitis, and arthritis with
arthralgias (pain in one or more joints).
Smith received treatment at the Calhoun-Cleburne Mental Health Board, Inc.
(“Calhoun-Cleburne”), for depressive features and mood disorders relating to her
back injury from April 2003 to September 2003. In April 2003, she reported that
Zoloft afforded her some relief. By May 2003, Smith had made progress in all
8
areas except insomnia. Upon her discharge in September 2003, she had a stable
mood, she had no tearfulness, she took pleasure in various activities, her insomnia
was more related to her pain than her mood, and her overall progress was good.
On 21 January 2004, Smith was examined by Laura Kezar, M.D., a physical
medicine and rehabilitation specialist. Smith reported that her medication provided
some relief, but she experienced constant low back pain with pain radiating across
her hips and intermittently down her leg. She also reported an ankle fracture for
which she was receiving conservative treatment. Dr. Kezar observed that Smith
appeared uncomfortable, her affect was constricted, and her mood was depressed,
but that she was alert, oriented, cheerful at times, had good eye contact, and was
neatly groomed. Smith had a guarded range of motion and tenderness to deep
palpation in her lower lumbar region, the sacroiliac joints, and throughout her
paravertebral muscles and in the buttock muscles, with scattered trigger points.
Smith was able to drive short distances and ate a regular diet. The motor
examination showed normal tone and generally normal sensation to light touch
pinprick. Dr. Kezar opined that Smith suffered from (1) chronic low back pain,
left lower extremity radiculopathy (any pathological condition of the nerve roots),
failed back syndrome with nociceptive and neuropathic pain components “which
should be amenable to treatment;” (2) a recent ankle fracture; (3) prolonged sleep
9
disturbance, depressed mood, financial stress, and litigation; (4) hypertension; and
(5) hypercholesterolemia. Dr. Kezar assigned a ten percent impairment to Smith as
a whole. Id. at 396.
Dr. Kezar indicated in her “Plan” that Ultram was reasonable for pain
management, Flexeril had benefitted Smith in the past for acute muscle spasms and
would be restarted, and Desyrel would have a positive impact on Smith’s
perception of pain and potentially could help her sleep. She stated that she
believed Smith had reached Maximum Medical Improvement and that her
condition was static and well-stabilized. With respect to Smith working at a
sedentary level, Dr. Kezar stated “I certainly think this is reasonable. I do not see
that [Dr. Clark] gave her specific work restrictions.” Id. at 397. She advised Smith
to contact Vocational Rehabilitation Services for job retraining or education and
referred Smith to a chronic pain management physician.
Smith saw Dr. David W. Cosgrove, a pain management specialist, beginning
in September 2004. Her legs showed no unusual atrophy, impingement, or
pseudomotor change, and she had good internal and external rotation at the hips
with no crepitus in the knees. Lateral bending of Smith’s back produced localized
back pain but no radicular (involving a nerve root) complaints, and rotational
movement was normal. Dr. Cosgrove assessed Smith as having chronic
10
pain, failed back surgery syndrome, radiculopathy in her lower left leg, mild
treated depression, hypertension, hyperthyroidism, and seasonal rhinitis. He
suggested continuing with the medications given the benefit they provided in the
past.
In a 4 October 2004, follow up note, Dr. Cosgrove reported that Smith was
alert, oriented, pleasant, and appeared to be in no apparent distress. Smith reported
that her pain was a four or five out of ten, she derived significant benefit from her
medications, and she received good benefit from her TENS unit. Dr. Cosgrove
noted that Smith exhibited no excessive pain behaviors. She pointed out a tender
spot on her right foot, but Dr. Cosgrove found no palpable or visible abnormality.
Dr. Cosgrove recommended continuing Smith’s medications unchanged and a
follow-up in three months.
At the 7 March 2005 hearing, the ALJ posed a hypothetical to a Vocational
Expert, asking the VE to consider:
a younger individual who has a high school education plus [] at least
15 months of technical college, who has the restrictions of, for
occasional bending, stooping, squatting, climbing, no push-pull
movement involving the left lower extremities, no driving, no
unprotected height. She should work in a temperature controlled
environment and given an option to sit or stand at will. And for
purposes of our scenario, she has a mild to moderate level of pain
and/or depression.
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Id. at 770. The VE testified that Smith would not be able to return to her past work
activity. Upon being asked if there were sedentary work opportunities for someone
as described, the VE testified that approximately 1,500 cashier jobs, 3,000 to 4,000
clerical jobs, 2,000 automatic machine tenders, and 1,000 to 1,500 security monitor
jobs existed in the north central Alabama area alone. The ALJ returned to the
original hypothetical and added the limitation of having to lie down four times
during work hours for 30 minutes each time. The VE responded that no work
would be available at either the light or sedentary level. The ALJ then removed the
restriction of needing to lie down and added the restriction of a moderately severe
to severe pain level, and alternatively, moderately severe to severe levels of
depression, and the VE responded that she would not be able to work at all. The
ALJ then changed to hypothetical to include medication side-effects that imposed
moderately severe to severe limitations, and the VE stated that no work could be
done.
The ALJ denied benefits on 8 December 2005. The ALJ found that Smith
was not currently engaged in substantial gainful activity. He found that she had
severe impairments, which were failed back surgery syndrome, left lower
extremity radiculopathy, mild depression, hypertension, and hypothyroidism. The
ALJ found that none of her impairments met the criteria of the disability listings in
12
20 C.F.R. § 404, appendix 1, subpart P, and specifically did not meet the criteria of
listing § 1.04 (disorders of the spine), because there was no evidence that Smith
had a compromise of a nerve root of the spinal cord with evidence of nerve root
compression. The ALJ then calculated her RFC to determine whether she could
perform her past relevant work, and in so doing, he considered various factors
including Smith’s daily activities, precipitating and aggravating factors, the side-
effects of her medication, other treatments, and Smith’s subjective complaints of
pain.
Regarding the medical evidence of her pain, the ALJ found that, in early
2002, Dr. Clark found no clear evidence of disk herniation and did not report that
she had disabling pain or limitations due to her back impairment. The ALJ noted
that Dr. Kezar, a rehabilitation specialist, stated, in the January 2004 evaluation,
that it was reasonable for Smith to perform a sedentary level job, and that Dr.
Kezar recommended that Smith see vocational rehabilitation services for job
retraining or education. Based on this, the ALJ found that Dr. Kezar did not
believe that Smith had disabling pain or limitations due to her back problems.
Next, the ALJ considered that Dr. Cosgrove, as Smith’s pain management
specialist, reported that her pain level in October 2004 was no more than four to
five out of ten, which did not rise to the level of disabling pain. The ALJ noted
13
that Dr. Cosgrove did not indicate that she had disabling pain, and he reported that
she received significant benefits from her medication and her TENS unit and did
not appear to be in distress. The ALJ concluded that of Smith’s treating
physicians, the specialists who treated her back, the physicians at Quality of Life,
and Dr. Moore, no one ever reported that Smith had disabling pain or limitations.
Regarding her subjective complaints of pain, the ALJ found inconsistencies
between her testimony and the medical records. The ALJ noted that Smith testified
at the hearing that her pain was nine to ten out of ten four days a week, which was
inconsistent with Dr. Cosgrove’s October 2004 report that her pain was four to five
out of ten. Dr. Cosgrove further indicated that Smith received significant benefit
from her medications, and he did not indicate that she experienced more severe
pain. The ALJ also found that Smith’s testimony that she had significant problems
with the side-effects of her medications was inconsistent with the treating medical
records because Dr. Cosgrove, as the physician who treated her pain, never
indicated that Smith reported side-effects from her medications. The ALJ then
found that Smith’s testimony regarding her physical limitations were
unsubstantiated by the medical records. The ALJ noted that none of her treating
physicians ever reported physical restrictions as severe as what Smith claimed in
her testimony, and Dr. Kezar stated that Smith could perform sedentary work, even
14
without a fully healed ankle. Furthermore, the ALJ found that three separate
doctors recommended that Smith exercise, indicating that she was not as limited as
she alleged. The ALJ found no evidence of disabling limitations relating to her
hypothyroidism or hypertension, and she had not been diagnosed with arthritis of
the knees. The ALJ specifically addressed Dr. Oblena’s December 2002 report and
concluded that it was based on Smith’s subjective complaints, which were not
supported by the other medical records. The ALJ found that, other than some
decreased range of motion in her lumbar spine, Smith’s examination by Dr. Oblena
was within normal limits.
The ALJ then concluded that Smith’s testimony regarding her depression
and anxiety was unsupported by the medical records. He noted that she was
diagnosed with depression and anxiety at Quality of Life in February 2003, and
that in May 2003, Quality of Life reported that she had a good response to Zoloft.
Although Dr. Kezar noted that Smith’s mood was depressed in January 2004, Dr.
Kezar did not diagnose Smith with depression or any other mental impairment. In
September 2004, Dr. Cosgrove noted that Smith had mild depression, which was
treated. The ALJ found that no treating or examining physician ever reported that
Smith had disabling depression or any disabling limitations relating to mental
impairments.
15
The ALJ concluded that Smith had the “residual functional capacity to
perform sedentary work which allows for no more than occasional bending,
stooping, squatting, or climbing; no pushing or pulling movements of the left lower
extremity; no driving; no work at unprotected heights; a temperature controlled
environment and a sit/stand option,” and that “[a]ny testimony or allegations
otherwise are not credible.” Id. at 34. The ALJ then found, based on the VE’s
testimony, that Smith was capable of performing a significant number of sedentary
jobs given her age, education, work experience, and residual functional capacity,
and therefore, she was not disabled.
On 17 April 2006, after the ALJ’s decision, Dr. Daniel Prince performed a
consultive examination of Smith. Dr. Prince concluded that Smith was completely
impaired, and she appeared to be a chronic pain patient with fibromyalgia (a
chronic disorder characterized by widespread pain, tenderness, and stiffness of
muscles and associated connective tissue structures) and multiple problems with
mental and nervous disorders. Also after the ALJ’s decision, on 20 June 2006, Dr.
David Wilson performed a psychological evaluation in which he diagnosed Smith
with, among other things, major, severe depression with possible psychotic
features and a Global Assessment of Functioning (“GAF”) of 45, which indicated
serious mental symptoms or impairments. Dr. Wilson opined that her level of
16
impairment “would prevent her from functioning in any type of work setting.” Id.
at 416.
Smith appealed to the AC and submitted additional evidence, most of which
duplicated evidence already before the ALJ. A 21 December 2005 report from
Quality of Life, which was prepared after the ALJ’s decision, showed that Smith
reported her back pain was worse, her depression was worse, and her pain scale
score was an eight out of ten. The AC denied Smith’s request for review. The AC
“considered the reasons [Smith] disagree[d] with the decision and the additional
evidence listed on the enclosed Order of Appeals Council,” and found that the
additional evidence did not provide a reason to change the ALJ’s decision. Id. at
7-8.
The district court affirmed the Commissioner’s decision. In making its
decision, the district court considered Smith’s argument that the AC should have
granted review or remanded her case based on the new evidence she submitted.
The district court cited case law for the proposition that good cause is required
when a claimant fails to submit evidence at the administrative level. The district
court then considered the new evidence that Smith submitted to the AC, and
concluded that “the majority of the evidence so submitted is either duplicative of
records already submitted, or does not relate to the relevant time period.” R1-12 at
17
20-21. The district court noted that while the Dr. Prince record may establish that
Smith was disabled as of 17 April 2006, this was not in the relevant time period.
The district court found no basis to remand “[b]ecause the medical records which
could establish disability all post-date the ALJ’s decision.” Id. at 21. Therefore,
the district court affirmed the Commissioner’s decision. This appeal followed.
II. DISCUSSION
1. The ALJ’s Decision Was Based Upon Substantial Evidence
We review a Commissioner’s decision to determine whether it is supported
by substantial evidence and whether the proper legal standards were applied.
Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004) (per
curiam). “Substantial evidence is more than a scintilla and is such relevant
evidence as a reasonable person would accept as adequate to support a
conclusion.” Id. (quotation omitted). “Even if the evidence preponderates against
the Commissioner’s findings, we must affirm if the decision reached is supported
by substantial evidence.” Id. at 1158-59 (quotation omitted). “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) (per
curiam) (quotation omitted).
A. Subjective Complaints of Pain
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When a claimant attempts to establish disability through her own testimony
concerning pain or other subjective symptoms, we apply a three-part “pain
standard,” which requires “(1) evidence of an underlying medical condition; and
(2) either (a) objective medical evidence confirming the severity of the alleged pain
stemming from that condition; or (b) that the objectively determined medical
condition can reasonably be expected to give rise to the claimed pain. Wilson v.
Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002) (per curiam). The ALJ must
explicitly and adequately articulate his reasons if he discredits subjective
testimony. Id. “A clearly articulated credibility finding with substantial
supporting evidence in the record will not be disturbed by a reviewing court.”
Foote v. Chater, 67 F.3d 1553, 1562 (11th Cir. 1995) (per curiam).
The ALJ found that the medical records did not support Smith’s subjective
claims of pain. The ALJ based his decision upon medical records establishing that
Dr. Clark released Smith to light duty work in early 2002 following her back
surgery in 2001, and that Dr. Clark performed additional tests following her
complaints of pain, but, as of 30 October 2002, the tests did not reveal any
evidence of disk herniation. Further, Dr. Clark never reported that Smith
experienced disabling pain or limitations. Dr. Kezar, a specialist in physical
medicine and rehabilitation, specifically stated in January 2004 that it was
19
reasonable for Smith to return to sedentary level work. Further, Dr. Kezar
recommended that Smith seek vocational rehabilitation services for job retraining
or education, implying that Dr. Kezar did not think Smith was experiencing
disabling pain or limitations relating to her back impairment. Dr. Cosgrove,
Smith’s pain management specialist, reported in October 2004 that Smith was
experiencing moderate, not disabling, pain, as she reported pain at no more than
four or five out of ten. Dr. Cosgrove also indicated that Smith received significant
benefits from her medication, her TENS unit, and she did not appear to be in
distress. Dr. Cosgrove never reported that Smith experienced disabling pain or
limitations relating to her back impairment.
We conclude that the ALJ properly found that Smith’s testimony was not
supported by the medical evidence and was inconsistent with Dr. Cosgrove’s report
that her pain was only four to five out of ten. In addition, Smith’s treating
physicians, the specialists who treated her back impairment, and the physicians at
Quality of Life, never reported that she had disabling pain or limitations. See
Wilson, 284 F.3d at 1225. The record does not show that Smith had a medical
condition that was so severe that it could reasonably be expected to cause the levels
of pain that Smith alleged. Therefore, substantial evidence supports the ALJ’s
rejection of Smith’s subjective complaints of pain, and the ALJ did not err in
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concluding that Smith’s pain level was mild to moderate.
B. Physical Assessment
The ALJ concluded that Smith had a residual functional capacity to perform
sedentary work that allowed for “no more than occasional bending, stooping,
squatting, or climbing; no pushing or pulling movements of the left lower
extremity; no driving; no work at unprotected heights; a temperature controlled
environment and a sit/stand option. R2 at. 32.
Sedentary work involves lifting no more than 10 pounds at a time and
occasionally lifting or carrying articles like docket files, ledgers, and
small tools. Although a sedentary job is defined as one which
involves sitting, a certain amount of walking and standing is often
necessary in carrying out job duties. Jobs are sedentary if walking
and standing are required occasionally and other sedentary criteria are
met.
20 C.F.R. § 404.1567(a); 20 C.F.R. § 416.967(a). Social Security Ruling 83-10
elaborates on the definition of sedentary by providing that “‘[o]ccasionally’ means
occurring from very little up to one-third of the time, and that periods of standing
or walking should generally total no more than about 2 hours of an 8-hour
workday, and sitting should generally total approximately 6 hours of an 8-hour
workday.” Kelley v. Apfel, 185 F.3d 1211, 1213 n.2 (11th Cir. 1999) (per curiam)
(quotation omitted).
Substantial evidence supported the ALJ’s determination of Smith’s physical
21
limitations. As of 29 May 2002, Dr. Clark found no evidence of recurrent or
residual disc herniation. On 3 December 2002, Dr. Oblena found that her major
muscle groups had a graded strength of five out of five with no muscle atrophy.
Smith’s 9 January 2003 physical RFC indicated that she could occasionally lift and
carry 20 pounds, and could frequently lift or carry 10 pounds. The assessment
stated that she could stand, walk, or sit about six hours in an eight-hour workday,
and could push or pull with unlimited frequency. The report further indicated that
she could balance, stoop, kneel, crouch, and crawl occasionally. Therefore,
according to the report, Smith was capable of performing sedentary work. See 20
C.F.R. § 404.1567(a); 20 C.F.R. § 416.967(a). In addition, none of Smith’s
treating physicians ever indicated she was as limited as she claimed to be, and no
medical evidence substantiated Smith’s claim that she needed to lie down
periodically throughout the day. In fact, Dr. Kezar reported that she was capable
of sedentary work in January 2004, despite her ankle fracture. Dr. Cosgrove, a
pain management specialist, found that Smith’s legs showed no unusual atrophy,
impingement, or pseudomotor change, and she had good internal and external
rotation at the hips with no crepitus at the knees.
The record supports the finding that Smith was capable of performing
sedentary work, and none of Smith’s treating physicians ever indicated she was as
22
limited as she claimed to be. Given that a reasonable person could find this
evidence supports the ALJ’s assessment of her physical limitations, the ALJ’s did
not err in determining Smith’s physical limitations, because his assessment is
supported by substantial evidence. See Crawford, 363 F.3d at 1158.
C. Mental Assessment
The ALJ found that Smith's medical records did not support a finding that
she suffered from disabling depression or anxiety as she testified at the hearing.
The record shows that she was diagnosed with mood disorder with depressive
features at Calhoun-Cleburne in April 2003, but reported having some relief from
Zoloft. By September 2003, her mood was stable, her insomnia was related more
to her pain than her mood, she had no tearfulness, and she was finding pleasure in
various activities. In January 2004, Dr. Kezar noted that Smith had a depressed
mood, but she diagnosed no other mental impairment. Dr. Cosgrove diagnosed
Smith with mild, treated depression, but found that, as of 4 October 2004, she
received significant benefits from her medications and appeared to be in no
apparent distress. Smith points to no evidence indicating she suffered disabling
depression or anxiety, and no documents before the ALJ indicated that she was
experiencing severe depression. Therefore, substantial evidence supported the
ALJ’s conclusion that Smith suffered no more than mild to moderate depression.
23
See id.D. Dr. Oblena’s Report
The opinions of examining or treating physicians generally are given more
weight than non-examining or non-treating physicians unless “good cause” is
shown. See 20 C.F.R. § 404.1527(d)(1), (2), (5); Lewis v. Callahan, 125 F.3d
1436, 1440 (11th Cir. 1997). Good cause exists to discredit a physician’s
testimony when a physician’s opinion is contrary to the evidence contained in the
record. Lewis, 125 F.3d at 1440. Additionally, the Commissioner may reject any
medical opinion if the evidence supports a contrary finding. Sryock v. Heckler,
764 F.2d 834, 835 (11th Cir. 1985) (per curiam).
Given all the evidence tending to show that Smith was not in disabling pain,
substantial evidence justified the ALJ’s decision not to accord much weight to Dr.
Oblena’s December 2002 report, which stated that Smith would have difficulty
working due to her constant pain. The ALJ found that Dr. Oblena’s opinion was
apparently based on Smith’s subjective complaints, which the ALJ appropriately
found were not substantiated by the record, and that the remaining portions of Dr.
Oblena’s report were essentially within normal limits, because the report indicated
that Smith was in no acute distress, her pain was a six out of ten but was reduced
by her medications, she had no muscle atrophy, and there was no evidence of
24
recurrent or residual disc herniation. Furthermore, Smith reported to both Dr.
Kezar and Dr. Cosgrove that her medication improved her pain, and Dr. Kezar
specifically indicated that it was reasonable for Smith to perform sedentary work as
of January 2004. The ALJ was entitled to weigh the evidence, and his decision to
disregard Dr. Oblena’s conclusion was supported by substantial evidence.1
Graham v. Bowen, 790 F.2d 1572, 1575 (11th Cir. 1986)
E. The ALJ Posed a Proper Hypothetical Posed to the VE
When a claimant cannot perform a full range of work at a given level of
exertion or has non-exertional impairments that significantly limit basic work
skills, the preferred method of demonstrating that a claimant can perform other
jobs is through the testimony of a VE. Jones v. Apfel, 190 F.3d 1224, 1229 (11th
Cir. 1999). “[T]o constitute substantial evidence, the VE’s testimony must be
based on a hypothetical posed by an ALJ which encompasses all of the claimant’s
impairments.” Id. The ALJ is not required to include findings in the hypothetical
that he finds are unsupported. Crawford, 363 F.3d at 1161. The resolution of
conflicting evidence is the function of the ALJ. See Graham, 790 F.2d at 1575.
The hypothetical posed to the VE was consistent with the medical evidence
1
This Court need not address Smith’s allegation that the ALJ previously has been found
to have substituted his own opinion for that of medical experts, because, in this case, the ALJ’s
decision is supported by substantial evidence.
25
and other evidence on the record that the ALJ found to be credible. Given that
substantial evidence supported the ALJ’s finding that Smith experienced no more
than mild to moderate levels of pain and depression, as described above, the
hypothetical properly included these limitations. Substantial evidence supported
that ALJ’s conclusion that Smith’s testimony concerning (1) her need to lie down
throughout the day, (2) her moderately severe to severe pain or depression, and
(3) the disabling side-effects from her medication, was not credible in light of the
medical records. Consequently, the hypothetical relied on by the ALJ properly did
not include these limitations. Crawford, 363 F.3d at 1161; see also Ingram v.
Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1270 (11th Cir. 2007) (concluding
that the ALJ properly omitted a claimant’s alleged fatigue, insomnia, anxiety, and
depression because they were either not supported by the medical records or were
alleviated by medication). Accordingly, the hypothetical posed to the VE was
proper because it included all of Smith’s impairments. Since the ALJ posed a
proper hypothetical, the VE’s testimony constitutes substantial evidence that
supports the denial of benefits. See Jones, 190 F.3d at 1229.
2. The AC’s Decision Not to Review
Smith argues that the AC failed to consider the new evidence that she
submitted to it because, if it had considered the new evidence, it would have
26
granted review because the evidence would likely change the ALJ’s decision and
demonstrates that she is physically and mentally disabled. Smith emphasizes that
the reports of Dr. Wilson and Dr. Prince show that she is eligible for benefits under
listing § 12.04 (depression). Specifically, she notes that (1) Dr. Wilson evaluated
her and concluded that she had major depression-recurrent and a GAF of 45, which
would qualify her under listing § 12.04, and (2) Dr. Prince, based on his evaluation
on April 17, 2006, concluded that Smith was disabled and completely impaired.
The Commissioner responds that the AC properly denied review because it
considered her new evidence and properly concluded that the evidence did not
establish a basis on which to overturn the ALJ’s decision.
If a claimant submits new noncumulative and material evidence to the AC
after the ALJ’s decision, the AC shall consider such evidence, but only where it
relates to the period on or before the date of the ALJ’s hearing decision. 20 C.F.R.
§ 404.970(b). “Material” evidence is evidence that is “relevant and probative so
that there is a reasonable possibility that it would change the administrative result.”
Milano v. Bowen, 809 F.2d 763, 766 (11th Cir. 1987) (quotation omitted). When
evidence is submitted for the first time to the AC, that new evidence becomes part
of the administrative record. Keeton v. Dep’t of Health and Human Servs., 21 F.3d
1064, 1067 (11th Cir. 1994). The AC considers the entire record, including the
27
new, material, and chronologically relevant evidence, and will review the ALJ’s
decision if the ALJ’s “action, findings, or conclusion is contrary to the weight of
the evidence currently of record.” 20 C.F.R. § 404.970(b). We review “whether
the new evidence renders the denial of benefits erroneous.” Ingram, 496 F.3d at
1262. “When the Appeals Council refuses to consider new evidence submitted to
it and denies review, that decision is also subject to judicial review because it
amounts to an error of law.” Keeton, 21 F.3d at 1066.
In this case, the AC considered Smith’s newly submitted evidence but found
no basis to review the ALJ’s decision. The AC specifically stated that it
“considered the reasons [Smith] disagree[d] with the decision and the additional
evidence listed on the enclosed Order of Appeals Council,” thus it did not err by
failing to consider the new evidence. R2 at 7; see Keeton, 21 F.3d at 1066. In
addition, the AC properly declined to review the ALJ’s decision in light of the
evidence submitted because the evidence was either not new or material. With
respect to her physical condition, the evidence shows that Smith fractured her left
ankle, and that she was doing “fairly well” with “residual aching pain and
swelling.” R2 at 538-72, 653-54. Records from 9 October 2003 to 6 January
2005, show that Smith was being treated for sinus and ear pressure,
hypothyroidism, reflux, a broken ankle, back pain, and foot pain. The physical
28
therapy documents show that, by 10 March 2004, Smith was able to walk at least
15 minutes before experiencing pain, she was able to stand for more than 10
minutes in one sitting, her ankle strength had improved, her gait pattern was
significantly better, and her function was progressing well. Treatment notes from
April 2005 show that Smith indicated that all of her medications were helping, she
was exercising, and she felt her strength had increased. She exhibited no excessive
pain behaviors, and, although she had a slightly antalgic gait, she had good
mobility overall. She also had been walking around the block three times a day
using ankle weights to build her leg strength, and her lower extremities were
normal for power and tone. In September 2005, Smith reported “good benefit”
from her medications, and she was still walking around the block about three times
a day and doing stretches. Id. at 433, 588. Other records dating from 15 March
2005 to 21 December 2005, id. at 424-29, 580-86, show that she was doing well at
a follow-up in April 2005, when she reported a pain level of five out of ten, and, in
July 2005, she denied pain and was exercising every day. None of these reports
indicated that Smith was experiencing severe or disabling pain or physical
limitations, and they appear to show that her medications were helping and she was
improving. Thus, these records are not material, as they do not create a
“reasonable possibility” of a different result. See Milano, 809 F.2d at 766.
29
With respect to Smith’s mental condition, a mental status exam from
Calhoun-Cleburne dated 5 August 2004, indicated a tentative diagnosis of
depression. In June 2005, Dr. Cosgrove reported that Smith had some insomnia
and depression but indicated that Trazodone was helping her, and in September
2005 he diagnosed her with treated mild depression. None of these reports
indicated that she was suffering from severe or disabling depression, and therefore,
do not conflict with the ALJ’s decision.
Among the other new evidence Smith submitted was (1) a 20 June 2006
report from Dr. Wilson concluding that her impairments would prevent her from
working; (2) a 17 April 2006 report from Dr. Prince concluding that she was
completely impaired; and (3) a 21 December 2005 Quality of Life report, which
indicated that Smith reported her back pain was worse, her depression was worse,
and her pain scale score was an eight out of ten. While these three reports would
strengthen Smith’s contention that the new evidence showed she was disabled,
these reports came after the ALJ’s decision and, therefore, the AC does not
consider them in determining whether to review the ALJ’s decision. See 20 C.F.R.
§ 404.970(b).
Therefore, because none of the reports in the relevant time period indicated
that Smith was experiencing severe or disabling pain or depression, and the reports
30
concluding that she was experiencing severe pain and depression took place after
the ALJ’s decision, the evidence did not establish a likelihood that the ALJ would
have reached a different result, and the AC did not err by concluding that the
weight of the evidence was not contrary to the ALJ’s decision.
3. The District Court’s Decision Not to Remand Was Correct
We review de novo a district court’s determination of whether newly
submitted evidence necessitates a remand to the Commissioner. Vega v. Comm’r
of Soc. Sec., 265 F.3d 1214, 1218 (11th Cir. 2001). When a claimant submits new
evidence to the AC, the district court must consider the entire record, including the
evidence submitted to the AC, to determine whether the denial of benefits was
erroneous. Ingram, 496 F.3d at 1262. Remand is appropriate when a district court
fails to consider the record as a whole, including evidence submitted for the first
time to the AC, in determining whether the Commissioner’s final decision is
supported by substantial evidence. Id. at 1266-67. The new evidence must relate
back to the time period on or before the date of the ALJ’s decision. 20 C.F.R.
§ 404.970(b).
“Section 405(g) [of the Social Security Act] permits a district court to
remand an application for benefits to the Commissioner . . . by two methods, which
are commonly denominated ‘sentence four remands’ and ‘sentence six remands.’”
31
Ingram, 496 F.3d at 1261. A sentence four remand, as opposed to a sentence six
remand, is appropriate when “evidence properly presented to the Appeals Council
has been considered by the Commissioner and is part of the administrative record.”
Ingram, 496 F.3d at 1269. Under a sentence four remand, when a claimant has
submitted evidence for the first time to the AC, the claimant is not required to
show good cause. See Melkonyan v. Sullivan, 501 U.S. 89, 99-100, 111 S.Ct.
2157, 2164 (1991) (recognizing “Congress’ explicit delineation in § 405(g)”
between sentence four and sentence six remands and noting that a court may
remand under sentence six “only if the claimant shows good cause for failing to
present the evidence earlier”); see also Ingram, 496 F.3d at 1258 (recognizing that
we have previously “mistakenly stated that evidence first presented to the Appeals
Council could be considered by the court only if the applicant had good cause for
not presenting it earlier to the administrative law judge.”).
Because Smith submitted new evidence for the first time to the AC, which
the AC considered, it became part of the administrative record and the only basis
for remanding her case would be a sentence four remand, not a sentence six
remand. Because this is a sentence four remand situation, Smith was not required
to show good cause. Here, the district court did not require Smith to show good
cause and did in fact consider the additional evidence Smith submitted to the AC,
32
as Ingram requires. Because the district court considered the evidence Smith
submitted for the first time to the AC, a remand for failing to consider the evidence
under Ingram is unnecessary. See Ingram, 496 F.3d at 1266-67. Additionally, the
evidence that Smith submitted after the ALJ’s decision, which the district court
properly considered, was either cumulative or immaterial, and therefore, the
district court did not err in finding that the evidence did not establish a basis for
remanding the case.
III. CONCLUSION
Sherry Smith appeals the district court’s order affirming the Commissioner’s
denial of her application for disability insurance benefits, pursuant to 42 U.S.C.
§ 405(g). Upon review of the administrative and district court records and the
parties’ briefs, we find no error. The ALJ posed a proper hypothetical posed to the
Vocational Expert, the Appeals Council properly declined to review the additional
evidence Smith submitted to it on appeal of the ALJ’s adverse decision, and the
district court correctly found that the ALJ’s decision is supported by substantial
evidence and followed the proper legal standards. Accordingly, the district court’s
order is AFFIRMED.
33