Carson v. Commissioner of Social Security Administration , 300 F. App'x 741 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOV 21, 2008
No. 08-13217 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-00060-CV-J-32-TEM
RICHARD CARSON,
Plaintiff-Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(November 21, 2008)
Before TJOFLAT, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Richard Carson appeals the district court’s order affirming the decision of
the Commissioner of the Social Security Administration’s denying his application
for disability insurance benefits, 42 U.S.C. § 405(g). Carson applied for disability
insurance benefits based on pain and impairment of his right knee, which stemmed
from an injury he suffered in 1995.1
In his brief on appeal, Carson argues that the district court’s judgment
should be reversed, and the case remanded to the Commissioner with instructions
that he be afforded benefits, because the evidence clearly established that he was
disabled because he could not work eight hours per day performing light or
sedentary work. Alternatively, he argues that the case should be remanded to the
Commissioner because the ALJ improperly discounted the opinion of his treating
physician, Dr. John McCaulie, regarding his physical capacities and level of pain.2
A claimant is eligible for disability benefits when he demonstrates disability
on or before the last date for which he was insured. 42 U.S.C. § 423(a)(1)(A).
Here, because Carson was last insured on June 30, 1999, he needed to establish
disability on or prior to that date. See id.
We review de novo the legal principles that underlie the Commissioner’s
1
He also presented some evidence regarding vision impairment and mental health
problems. His brief on appeal does not mention those matters; hence, we do not consider them.
See Timson v. Sampson, 518 F.3d 870, 874 (11th Cir.), cert. denied, __ S.Ct. __ (U.S. Oct. 6,
2008) (No. 07-10871).
2
We have rephrased this argument as an alternative argument for relief.
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decision in Social Security cases. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th
Cir. 2005). The question we must answer is whether the Commissioner’s decision
is supported by substantial evidence. Id. The substantial evidence test requires
that the decision be based on “such relevant evidence as a reasonable person would
accept as adequate to support a conclusion.” Id. “This limited review precludes
deciding the facts anew, making credibility determinations, or re-weighing the
evidence.” Id. (citing Bloodworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir.
1983)). With these principles in mind, we turn to Carson’s arguments – in reverse
order.
I.
The ALJ must give the opinion of a treating physician “substantial or
considerable weight unless ‘good cause’ is shown to the contrary.” Lewis v.
Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997); see also 20 C.F.R.
§ 404.1527(d)(2). “‘[G]ood cause’ exists when the: (1) treating physician’s
opinion was not bolstered by the evidence; (2) evidence supported a contrary
finding; or (3) treating physician’s opinion was conclusory or inconsistent with the
doctor’s own medical records.” Phillips v. Barnhart, 357 F.3d 1232, 1240-41 (11th
Cir. 2004). “The ALJ must clearly articulate the reasons for giving less weight to
the opinion of a treating physician, and the failure to do so is reversible error.”
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Lewis, 125 F.3d at 1440. Where the ALJ articulated specific reasons for failing to
give the opinion of a treating physician controlling weight, and those reasons are
supported by substantial evidence, we do not disturb the ALJ’s refusal to give the
opinion controlling weight. Moore, 405 F.3d at 1212. While statements from
treating physicians regarding the level of work a claimant can perform are
important, they are not determinative because the ALJ has the ultimate
responsibility to assess a claimant’s residual functional capacity (“RFC”). See 20
C.F.R. §§ 404.1513(c), 404.1527, 404.1545, 404.1546(c).
In this case we conclude that substantial evidence supported the ALJ’s
decision to discount the opinion of Dr. McCaulie regarding Carson’s RFC because
the evidence, taken as a whole, did not bolster his opinion; rather, it supported a
contrary finding. Dr. McCaulie opined that Carson: (1) could sit and work no
more than one hour during a workday; (2) could stand no more than one hour
during a workday; and (3) experienced “marked pain,” about six or seven on a ten
point scale, which would prevent him from completing tasks at work without
frequent breaks or interruptions. Other evidence, however, including opinions
from other treating physicians, state agency medical consultant reports, and
Carson’s own statements, contradicted Dr. McCaulie’s opinion. Because the
evidence failed to support Dr. McCaulie’s opinion, and, indeed, supported a
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contrary finding, the ALJ had good cause to discount his opinion.3
II.
A disability insurance benefits (“DIB”) claimant must demonstrate disability
on or before the date for which he was last insured. Moore, 405 F.3d at 1211; 42
U.S.C. § 423(a)(1)(A). Social Security regulations establish a five-step evaluation
process, used to determine disability for DIB claims, that “place[s] a very heavy
burden on the claimant to demonstrate both a qualifying disability and an inability
to perform past relevant work.” Moore, 405 F.3d at 1211; 20 C.F.R. § 404.1520.
Under the five-stop process, even if a claimant’s impairment is severe and
prevents him from doing his past relevant work, he is not considered disabled if he
retains the RFC to make an adjustment to other work. 20 C.F.R. § 404.1520(a)(4).
An RFC assessment is based upon all of the relevant evidence and measures a
claimant’s ability to do work despite his impairments. See Lewis, 125 F.3d at
1440. The ALJ makes this determination by considering the claimant’s ability to
lift weight, sit, stand, push, pull, etc. See C.F.R. § 404.1545(b). Relevant evidence
regarding a claimant’s RFC may include medical reports and assessments by state
3
Although the ALJ incorrectly stated that Dr. McCaulie saw Carson only twice, that
error was harmless because the record does not indicate that it affected the ALJ’s decision. See
Diorio v. Heckler, 721 F.2d 726, 728 (11th Cir. 1983) (applying the harmless error analysis in
the Social Security case context).
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agency medical consultants. 20 C.F.R. § 404.1513(a), (c).
To determine the physical exertion requirements of work in the national
economy, jobs are classified as sedentary, light, medium, heavy, and very heavy.
See 20 C.F.R. § 404.1567. Sedentary work involves lifting no more than ten
pounds at a time, with periods of standing or walking generally totaling no more
than two hours in an eight hour workday, and sitting totaling approximately six
hours in an eight hour workday. See Kelley v. Apfel, 185 F.3d 1211, 1213 n.2
(11th Cir. 1999). Light work involves lifting no more than 20 pounds at a time and
frequently lifting objects weighing up to 10 pounds, as well as a good deal or
walking or standing, or sitting with some pushing and pulling of arm or leg
controls. See Walker v. Bowen, 826 F.2d 996, 1000 (11th Cir. 1987); 20 C.F.R.
§ 416.967(b).
The Commissioner has found that a claimant retains the RFC to adjust to
other work only if he can do so on a “regular and continuing basis,” which means
“8 hours a day, for 5 days a week, or an equivalent work schedule.” Kelley, 185
F.3d at 1214 (quoting Social Security Ruling 96-8p).
Here, substantial evidence supported the ALJ’s denial of Carson’s disability
benefits claim. First, as discussed in part I, substantial evidence supported the
ALJ’s decision to discount Dr. McCaulie’s opinion because it was inconsistent
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with other evidence in the record. Also, substantial evidence specifically
supported the ALJ’s RFC determination that Carson could sit or stand for up to
one and a half hours at a time and up to four hours in an eight-hour workday and
perform other limited physical activities. Carson does not challenge the testimony
of the vocational expert that a person with the RFC found by the ALJ with
Carson’s age, education, and skills could perform a range of light and sedentary
work as found in jobs such as an estimator or a purchasing agent.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
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