Nancy Maffia v. Commissioner of Social Security , 291 F. App'x 261 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
Aug. 28, 2008
No. 07-15593 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00053-CV-OC-10-GRJ
NANCY MAFFIA,
Plaintiff-Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(August 28, 2008)
Before WILSON, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
Nancy Maffia, proceeding pro se, appeals the Social Security
Commissioner’s (“Commissioner”) denial of disability insurance benefits, 42
U.S.C. § 405(g). For the reasons that follow, we vacate and remand.
Maffia filed for disability benefits in 2003, alleging disability due to female
and intestinal problems. At a hearing before an Administrative Law Judge
(“ALJ”), she testified that pain was her primary symptom, and she relied on pain
medications Percocet, Lupron, and Vicodin. She described the pain as a seven or
eight on a scale of one-to-ten, but admitted that she could do household chores and
general grooming activities with periods of rest.
The medical records established that Maffia was diagnosed with severe
pelvic adhesions, chronic pelvic pain, and a small bowel obstruction. She also
experienced ovarian cysts and lower abdominal pain. Her treating physician, Dr.
Goldman, recommended a total hysterectomy. Maffia continued to experience
chronic pain, as noted by Dr. Goldman. After treating Maffia for over four years,
Dr. Goldman concluded that Maffia suffered from a serious inoperable condition.
In addition, Maffia suffered numerous foot ailments and deformities, resulting in
pain that required Darvocet. However, a 2004 doctor’s report by Dr. Jasjit Pawha
indicated that Maffia’s gait and stance were normal, she was able to squat and
ambulate without assistance, and she had full range of motion in her cervical spine
and extremities. Dr. Pawha did, however, indicate that these findings were subject
to restriction when Maffia experienced pain. Despite treatment for her ailments,
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Maffia continued to complain of pain, although a subsequent medical report from
Dr. U.S. Mishra indicated that the pain was controlled with medications.
In 2005, Maffia received additional treatment for foot ailments and was
instructed to limit excessive ambulation. Nevertheless, Dr. Mishra indicated in a
2005 medical source statement that, although lifting and carrying were affected by
Maffia’s impairment, Maffia could lift and carry up to twenty pounds frequently,
climb, balance, and kneel frequently, and could crawl and crouch occasionally.
Maffia also experienced limitations in reaching and fine manipulation. The same
report expressed that Maffia could stand and/or walk for less than two hours, and
would need to alternate sitting and standing to relieve discomfort, although it is
unclear whether the physician placed limitations on Maffia’s ability to sit for long
periods of time.
The ALJ found that Maffia was not disabled, noting Maffia’s testimony
regarding pain but concluding Maffia was not entirely credible. Specifically, the
ALJ found that the medical evidence did not support the level of pain reported, and
that there was no disabling pain present that was not treatable with medications.
The ALJ concluded that, although Maffia suffered severe and non-severe
impairments, Maffia could perform a full range of sedentary work and relied on the
Medical-Vocational Grids (“the Grids”) to deny benefits. The Appeals
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Commission denied the request for review, and Maffia, with assistance of counsel,
filed her complaint in the district court arguing that the ALJ failed to consider
Dr. Goldman’s opinion and failed to properly apply the pain standard. The district
court upheld the denial of benefits. Maffia now appeals. Liberally construing her
pro se argument, Haines v. Kerner, 404 U.S.519, 520, 92 S.Ct. 594, 596, 30
L.Ed.2d 652 (1972), she contends that the ALJ failed to consider all the medical
evidence in the record.
Where a challenge to the denial of benefits is properly preserved on appeal,
which we will assume it is here due to Maffia’s pro se status, we will deem the
Commissioner’s factual findings conclusive if supported by substantial evidence,
although review of legal conclusions is de novo. Lewis v. Barnhart, 285 F.3d
1329, 1330 (11th Cir. 2002). The Commissioner’s decision will be affirmed if it is
supported by substantial evidence and the Commissioner applied the correct legal
standards. Kelley v. Apfel, 185 F.3d 1211, 1213 (11th Cir. 1999). “Substantial
evidence is defined as more than a scintilla, i.e., evidence that must do more than
create a suspicion of the existence of the fact to be established, and such relevant
evidence as a reasonable person would accept as adequate to support the
conclusion.” Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995) (internal
citation omitted); see also Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir.
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2005) (substantial evidence is less than a preponderance). We may not decide facts
anew, make credibility determinations, or reweigh the evidence. Moore, 405 F.3d
at 1211.
In determining whether a claimant is disabled, the ALJ must consider the
evidence in its entirety, including: (1) objective medical facts or clinical findings;
(2) diagnoses of examining physicians; (3) subjective evidence of pain and
disability as testified to by the claimant . . . and (4) the claimant’s age, education,
and work history. DePaepe v. Richardson, 464 F.2d 92, 94 (5th Cir. 1972).1 A
claimant has the burden of proving that she is disabled and of producing evidence
in support of her claim. 42 U.S.C. § 423(d)(5)(A); Ellison v. Barnhart, 355 F.3d
1272, 1276 (11th Cir. 2003).
An ALJ must follow a five-step process in making a social security
disability determination. Phillips v. Barnhart, 357 F.3d 1232, 1237 (11th Cir.
2004). The claimant bears the burden of proof for the first four steps: (1) whether
she is currently performing a substantial gainful activity; (2) whether she has a
severe impairment; (3) whether that severe impairment meets or exceeds an
impairment in the listings; and (4) whether she can perform her past relevant work.
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Decisions of the Fifth Circuit, handed down prior to close of business on September 30,
1981, are binding precedent. Bonner v. City of Prichard, 661 F.2d 1206, 1209-10 (11th Cir.
1981) (en banc).
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Id. at 1237-39, 1241 n.10. Only at the fifth step does the burden shift to the
Commissioner, who must demonstrate the existence of a significant number of jobs
in the national economy that the claimant can perform. Id. at 1237, 1239, 1241
n.10.
In order to perform the fourth and fifth steps, the ALJ must determine the
claimant’s residual functional capacity, or RFC, which is an assessment, based
upon all relevant medical and other evidence, of a claimants’ remaining ability to
do work despite her impairments. Id. at 1238-39; Lewis v. Callahan, 125 F.3d
1436, 1440 (11th Cir. 1997) (citing 20 C.F.R. § 404.1545(a)). RFCs may contain
both exertional and nonexertional limitations. Phillips, 357 F.3d at 1242-43.
These limitations generally include a restriction to a particular physical exertion
level. 20 C.F.R. §§ 404.1567-.1568. A job is sedentary if periods of standing or
walking total no more than two hours of an eight-hour workday and sitting totals
approximately six hours. Kelley, 185 F.3d at 1214 n.2.
In assessing RFC, the ALJ must state with particularity the weight given
different medical opinions and the reasons for doing so. Sharfarz v. Bowen, 825
F.2d 278, 279 (11th Cir. 1987). An ALJ must consider the combined effects of a
claimant’s impairments in determining whether she is disabled and make specific
and well-articulated findings as to the effect of the impairments and whether, when
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combined, they cause the claimant to be disabled. Walker v. Bowen, 826 F.2d 996,
1001 (11th Cir. 1987). The opinion of a treating physician must be given
substantial weight unless “good cause” is shown to the contrary. Lewis, 125 F.3d
at 1440. We have found “good cause” where the evidence supported a contrary
finding. Id. 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, no reversible error occurs. Moore, 405 F.3d at 1212.
“[T]he ‘severity’ of a medically ascertained disability must be measured in
terms of its effect upon ability to work, and not simply in terms of deviation from
purely medical standards of bodily perfection or normality.” McCruter v. Bowen,
791 F.2d 1544, 1547 (11th Cir. 1986). Opinions on some issues, such as whether a
claimant is disabled, the assessment of a claimant’s RFC, and the application of
vocational factors, are “opinions on issues reserved to the Commissioner because
they are administrative findings that are dispositive of a case . . . .” 20 C.F.R.
§ 404.1527(e).
At the fifth step, the ALJ uses the claimant’s RFC, age, education, and work
experience to determine if other work is available in significant numbers in the
national economy that the claimant can perform. Phillips, 357 F.3d at 1239. In
order to do this, the ALJ can either use the Grids or call a vocational expert
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(“VE”). Id. at 1239-40. Exclusive reliance on the Grids is not appropriate,
however, either “when the claimant is unable to perform a full range of work at a
given residual functional level or when [she] has non-exertional impairments that
significantly limit basic work skills.” Id. at 1242 (quotation marks, alterations, and
emphasis omitted). If the claimant cannot clearly do unlimited types of work at the
exertional level in question, a VE must be called. See Marbury, 957 F.2d at 839
(reversing and remanding after holding that claimant could not do unlimited light
work and, therefore, ALJ erred by relying exclusively on the Grids).
“[We have] interpreted ‘significantly limit basic work skills’ as limitations
that prohibit a claimant from performing ‘a wide range’ of work at a given work
level.” Phillips, 357 F.3d at 1243 (emphasis in original). “The ALJ must make a
specific finding as to whether the nonexertional limitations are severe enough to
preclude a wide range of employment at the given work capacity level indicated by
the exertional limitations.” Foote, 67 F.3d at 1559 (internal quotation omitted).
Here, the ALJ failed to make specific findings in support of his conclusion
that Maffia could perform the full range of sedentary work. The ALJ also failed to
state with particularity the weight given to the different medical opinions presented
by the parties, and the reasons for doing so. See Sharfarz, 825 F.2d at 279. The
ALJ further mischaracterized Dr. Pawha’s medical opinion that Maffia was not
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restricted for sitting, standing, and walking, by not considering Pawha’s statement
that the opinion was subject to restriction when Maffia was in pain. Similarly, the
ALJ mischaracterized Dr. Mishra’s statement, finding that none of Maffia’s
impairments would have any significant impact on her ability to sit for prolonged
periods, even though Dr. Mishra indicated that sitting was affected by the
impairment and Maffia would need to periodically alternate sitting and standing to
relieve pain or discomfort, and Maffia was limited in her abilities of fine
manipulation. Furthermore, the ALJ ignored the real possibility that Dr. Mishra
indicated that Maffia could sit for less than six hours in an eight-hour day, where a
sedentary job involves sitting for six hours a day. See Kelley, 185 F.3d at 1214
n.2.
Additionally, the ALJ merely stated that Maffia could perform substantially
all of the seven primary strength demands required by work at the sedentary level,
without specifically analyzing how this could be in light of the medical opinions in
the record. See Phillips, 357 F.3d at 1242. Finally, the ALJ’s suggestion that only
a government employer would permit her to miss three days of work per month
because of her medical problems was made without any basis in the record and
without consulting a VE. If this were, in fact, true, it would severely restrict
Maffia’s access to the open market. See McRoberts v. Brown, 841 F.2d 1077,
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1081 n.2 (11th Cir. 1988) (noting VE’s testimony that a claimant who could not sit
or stand for more than four hours in a work day had severely restricted access to
the open market).
In sum, because of the insufficient findings regarding (i) the weight afforded
Maffia’s medical evidence, (ii) whether her ability to sit was impaired and, if so,
(iii) how long she could sit in an eight-hour day, it is not possible to conduct
meaningful appellate review of the ALJ’s conclusion as to the level of work which
Maffia could perform and whether application of the Grids was appropriate.
Therefore, we vacate the judgement and remand to the district court with
instructions to remand to the Commissioner for more specific findings.
VACATED AND REMANDED.
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