Heppell-Libsansky v. Commissioner of Social Security , 170 F. App'x 693 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-14791
March 14, 2006
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 04-00416-CV-T-17-EAJ
YVONNE HEPPELL-LIBSANSKY,
Plaintiff-Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(March 14, 2006)
Before DUBINA, HULL and MARCUS, Circuit Judges.
PER CURIAM:
Yvonne Heppell-Libsansky appeals the district court’s order affirming the
Social Security Commissioner’s denial of her application for disability insurance
benefits, filed pursuant to 42 U.S.C. §§ 405(g). On appeal, Heppell-Libsansky
argues that the Administrative Law Judge (ALJ) erred by: (1) erroneously
evaluating the findings of her treating neuropsychologist and two treating
physicians; (2) improperly evaluating her pain, fatigue, and medication side-effects
and discrediting her subjective complaints; and (3) providing the vocational expert
(VE) with an incomplete hypothetical that did not include all her impairments.
After careful review, we affirm.
Our review of the Commissioner’s decision is limited to an inquiry into
whether there is substantial evidence to support the findings of the Commissioner,
and whether the correct legal standards were applied. See 42 U.S.C. § 405(g);
Crawford v. Comm’r of Soc.Sec., 363 F.3d 1155, 1158 (11th Cir. 2004);
McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir. 1988). Thus, “[e]ven if the
evidence preponderates against the Commissioner’s findings, we must affirm if the
decision reached is supported by substantial evidence.” Crawford, 363 F.3d at
1158-59 (citation omitted). Substantial evidence is “such relevant evidence as a
reasonable person would accept as adequate to support a conclusion.” Id. at 1155;
see also McRoberts, 841 F.2d at 1080 (holding that substantial evidence “must do
more than create a suspicion of the existence of the fact to be established”). The
Commissioner’s factual findings are conclusive if supported by substantial
evidence. Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990); Allen v.
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Brown, 816 F.2d 600, 602 (11th Cir. 1987). We “review de novo the legal
principles upon which the Commissioner’s decision is based.” Moore v. Barnhart,
405 F.3d 1208, 1211 (11th Cir. 2005).
The relevant facts are straightforward. On October 31, 1996, Heppell-
Libsansky filed the present application for disability insurance benefits, alleging a
disability onset date of April 10, 1995 and claiming to be disabled as a result of
fibromyalgia, depression, and hypothyroidism. Her application was denied
initially and on reconsideration. Heppell-Libsansky requested and was granted a
hearing before an ALJ. After the ALJ denied benefits, the district court reversed
and remanded for further proceedings.
In 2002, on remand from the district court, the ALJ conducted a second
hearing. At the time of the hearing, Heppell-Libsansky was 52 years old, had a
bachelor’s degree in elementary education, and had previously worked as a
pharmacy technician and substitute teacher. She testified that her problems began
in 1991 when she was hospitalized for two weeks for depression. She stopped
working in April 1995 because she was experiencing pain “all over” which
affected her connective tissue and joints and her primary care physician told her
that she should stop working. On a scale of 1 to 10, her pain when she stopped
working was a 10 and remained between an 8 and 10 since she had stopped
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working. She stated that she had not returned to work since 1995 due to
fibromyalgia,1 chronic pain, and depression, and that her condition had continually
worsened from 1995 to 2000.2
In addition to Heppell-Libsanky’s testimony, the ALJ considered extensive
medical evidence. The ALJ reviewed three residual functional capacity (RFC)
evaluations conducted in May 1995, January 1997, and April 1997, and two
psychiatric assessments completed in 1997. He also considered the records,
including exam reports and progress notes, of the following treating physicians: (1)
Dr. Luis Herrero, a neuropsychologist who began treating Heppell-Libsansky in
1991 for depressive symptoms and who, in June 1995, noted that Heppell-
Libsansky was “still unable to work and . . . [I] doubt she [would] ever be able to
1
Fibromyalgia is a condition characterized by widespread pain in joints, muscles, tendons
and soft tissues.
2
During this period, she reported having: (1) pain in her neck, low back and all joints;
(2) stomach problems stemming from the medications she took; (3) problems with gripping and
holding onto things stemming from arthritis; (4) to lie down at least one and a half hours a day as
a result of fatigue and having to recline for two to three hours a day because of pain; (5) trouble
bending and stooping because it caused tremendous pain in her back, legs, and neck; (6) problems
with memory loss due to medication and pain; (7) problems with depression and anxiety; and (8)
difficulty sleeping.
As for her daily activities, she reported that she: (1) would not have been able to sit for 6
out of 8 hours a day because it would put pressure on her lower lumbar, neck, legs, and joints, and
she could sit comfortably only for 10 minutes; (2) could comfortably have stood for 10 minutes and
walked for 10 to 15 minutes; (3) could not repetitively lift things because she did not have the
strength and it aggravated her cervical problems; (4) did light chores, such as dusting, with the help
of her husband, and prepared light meals; and (5) had difficulty driving because she could not sit
for long periods of time and was on several medications.
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return to gainful employment”; (2) Dr. Mark Smitherman, who began treating
Heppell-Libsansky in 1990 for multiple ailments, including fibromyalgia; (3) the
report of rheumatologist Dr. Adam Rosen, who treated Heppell-Libsansky in
March 1997; (4) the report of Dr. Susan Fraser, another rheumatologist, who began
treating Heppell-Libsansky in May 1998 and saw Heppell-Libsansky 6 times over
a period of 16 months, with between 2 and 4 months between visits; and (5) the
initial evaluation and exams performed by board-certified rheumatologist Dr.
Leslie Goodman in 2000. Finally, the ALJ considered the evaluations, performed
in connection with Heppell-Libsansky’s disability application, of Dr. Gerald
Hodan, Ph.D. (July 10, 1995 evaluation); Dr. Firdaus Dastoor (December 31, 1996
evaluation); and Dr. Peter Bursten, Ph.D. (January 7, 1997 evaluation).
At the administrative hearing, a vocational expert (VE) testified that
Heppell-Libsansky’s work history as a pharmacy assistant and substitute teacher
was semi-skilled to light-skilled work. The ALJ asked the VE to explain the
implications of the follow ing hypothetical concerning what work
Heppell-Libsansky could perform: disregarding the transferability of acquired
skills, but considering her age, education and past work activity and assuming that
she was limited to occasionally lifting a maximum of 20 pounds and frequently
lifting less than 20 pounds further restricted by the need to alternate sitting and
5
standing and moderate concentration deficit, precluding complex jobs, but
permitting simple routine repetitive tasks of an unskilled and low-end, semi-skilled
variety. The VE replied that these conditions would preclude past work activity,
but opined that Heppell-Libsansky was able to perform the jobs of file clerk, mail
clerk, and general office clerk.
In his order denying benefits, the ALJ found that Heppell-Libsansky had not
engaged in substantial gainful activity since the onset of her disability in April
1995. The ALJ gave the opinion of treating neuropsychologist Dr. Herrero some
weight to the extent that Heppell-Libsansky’s fibromyalgia symptoms resulted in
physical and mental limitations, but not controlling weight because Dr. Herrero last
provided treatment for only two months after the alleged disability onset date, and
additional evidence showed periods of improvement in Heppell-Libsansky’s
condition since the onset date. The ALJ accorded great weight to the findings of
treating physicians Dr. Rosen and Dr. Goodman because they were consistent with
other medical evidence. The ALJ gave great, but not controlling, weight to the
findings of Drs. Dastoor and Bursten because their findings were consistent with
other record evidence, but the physicians did not have a treating relationship with
Heppell-Libsansky. Finally, the ALJ gave Dr. Hodan’s findings some, but not
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controlling, weight because he did not have a treating relationship with Heppell-
Libsansky.
In his order, the ALJ reviewed treating physician Dr. Smitherman’s progress
notes from 1995-2000 in great detail. The ALJ noted that Dr. Smitherman left it to
Heppell-Libsansky’s discretion whether or not to continue working. The ALJ also
fully articulated the physical findings made by Dr. Fraser during her treatment of
Heppell-Libsansky, including all the diagnoses made in May 1998 and the course
of treatment. However, the ALJ did not explicitly state the weight given to the
findings of Drs. Smitherman or Fraser.
After considering all of the medical evidence, the ALJ stated that “[t]he
medical evidence . . . indicate[d] that [Heppell-Libsansky]” had the severe
impairments of fibromyalgia and depression. The ALJ found that she did not,
however, have an impairment or combination of impairments equal to any
impairments in the Listing of Impairments.
The ALJ next determined Heppell-Libsansky’s RFC. In doing so, he
considered her testimony about her symptoms and functional limitations and
articulated the standard to be used and factors to consider in evaluating these
symptoms, noting that subjective symptoms alone cannot establish disability.
After summarizing Heppell-Libsansky’s testimony, including her 1991
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hospitalization for depression, her testimony regarding her medication side-effects,
and fatigue, the ALJ found that her subjective descriptions of her symptoms were
not entirely credible because her description was “considerably more limited and
restricted than [was] established by the medical evidence, her own
contemporaneous statements to treating sources, and medical source opinions.”
The ALJ referenced Dr. Smitherman’s physical findings during fibromyalgia flare-
ups and noted that they did not corroborate the extent of Heppell-Libsansky’s
alleged pain.
The ALJ found that Heppell-Libsansky retained the RFC “to occasionally
lift and carry up to twenty pounds and frequently lift and carry up to ten pounds
with the additional requirement of a sit/stand option.” He noted that she did not
appear to have any limitations of functioning with respect to daily activities and the
record reflected that she could perform most daily chores with help from her
husband, and could care for her finances and personal needs. The ALJ further
found that she was limited to “simple repetitive tasks” of unskilled and low-end
semiskilled positions, but allowed for a “sit/stand option” given Heppell-
Libsansky’s subjective reports of difficulty sitting for prolonged periods of time.
Relying on the VE’s testimony, the ALJ concluded that Heppell-Libsansky
could not return to her past relevant work, but could perform a restricted range of
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light work, including the jobs of file clerk, mail clerk, and general office clerk, all
jobs which existed in significant number in the national economy, thus precluding
a finding of disability.
The Appeals Council reviewed the ALJ’s decision, but found that the
evidence of record supported his findings. After adopting the report and
recommendations of the magistrate judge, the district court affirmed. This appeal
followed.
First, Heppell-Libsansky argues that the ALJ did not give sufficient reasons
for not giving controlling weight to the findings of her treating psychiatrist, Dr.
Herrero. She contends that Dr. Herrero’s opinion should have been given more
weight because of his longstanding relationship with her and his opinion about her
inability to work. Social Security regulations provide guidelines for the ALJ to use
when evaluating medical opinion evidence. See 20 C.F.R. § 404.1527. The ALJ
considers many factors when weighing medical opinions, including the examining
relationship, the treatment relationship, how supported an opinion is, whether an
opinion is consistent with the record, and a doctor’s specialization. See 20 C.F.R.
§ 404.1527(d)(1)-(6). Moreover, opinions on some issues are not medical opinions
because they are dispositive administrative findings reserved to the Commissioner,
including the ultimate determination of whether a claimant is disabled. 20 C.F.R.
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§ 404.1527(e)(1). In social security disability benefits cases, generally, the
opinions of examining or treating physicians are given more weight than non-
examining or non-treating physicians. See 20 C.F.R. § 404.1527(d)(1), (2), (5).
A treating physician’s testimony “must be given substantial or considerable
weight unless good cause is shown to the contrary.” Crawford, 363 F.3d at 1159(citation omitted). “This Court has concluded ‘good 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).
Here, the ALJ did not err by failing to accord Dr. Herrero’s opinion
controlling weight. Dr. Herrero’s statement that he doubted Heppell-Libsansky
would “ever be able to return to gainful employment” is not a medical opinion
under the Social Security regulations, but rather, is a dispositive finding left to the
ALJ. See 20 C.F.R. § 404.1527(e)(1). Moreover, though Dr. Herrero was a
treating physician, he saw Heppell-Libsansky only twice after the alleged onset
date. So, during the relevant coverage period, Dr. Herrero and Heppell-Libsansky
did not have a longstanding relationship nor did he provide lengthy or frequent
treatment. See 20 C.F.R. § 404.1527(d)(2)(i)-(ii). Also, other medical evidence,
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which was obtained during the relevant coverage period, showed periods of
improvement in Heppell-Libsansky’s symptoms.3 Accordingly, the ALJ did not
err by refusing to accord controlling weight to Dr. Herrero’s opinion.4
Next, Heppell-Libsansky argues that the ALJ did not properly consider her
pain, fatigue, and medication side-effects as separate, non-exertional impairments
and improperly applied the pain standard in discrediting her subjective testimony
by basing his decision only on her reported activities. Again, we disagree.
When a claimant attempts to establish disability through her own testimony
of pain or other subjective symptoms, she must show: (1) evidence of an
underlying medical condition; and (2) either (a) objective medical evidence that
3
For example, in 1997, Heppell-Libsansky reported to Dr. Smitherman relief from her pain
on Prednisone while her exams revealed no warmth or swelling in the hands or joints. In 1998, she
told Dr. Smitherman that she felt “significantly improved” on Plaquenil and Dr. Smitherman noted
that she was overall doing “fairly well.” She remained “reasonably stable” in 2000, and she reported
she felt quite well.
4
We also are unpersuaded by Heppell-Libsansky’s argument that it was reversible error for
the ALJ not to assign weights to the opinions of treating physicians, Drs. Smitherman and Fraser.
The ALJ explicitly stated that he was following the five-step sequential evaluation process required
by § 404.1520 and also described the controlling Eleventh Circuit law that he followed, including
the weight to be afforded to treating physicians. Although the ALJ did not explicitly assign a weight
to Drs. Smitherman’s or Fraser’s opinions, it is clear from the ALJ’s decision that he accorded
controlling, or at least great, weight to those opinions. After thoroughly discussing the medical
evidence presented by both physicians, the ALJ found fibromyalgia to be a severe impairment. It
was Drs. Smitherman and Fraser who treated Heppell-Libsansky most extensively and regularly for
this condition. Moreover, when he gave several physicians’ opinions some, or even great, weight,
but not controlling weight, the ALJ reasoned that these other doctors did not have an ongoing,
treating relationship with Heppell-Libsansky. By explicitly not giving controlling weight to the
opinions of non-treating physicians and finding fibromyalgia to be a severe impairment, the ALJ
necessarily found the opinions of physicians who treated Heppell-Libsansky for fibromyalgia, such
as Drs. Smitherman and Fraser, controlling.
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confirms the severity of the alleged pain arising from that condition, or (b) that the
objectively determined medical condition is of such a severity that it can be
reasonably expected to give rise to the alleged pain. Holt v. Sullivan, 921 F.2d
1221, 1223 (11th Cir. 1991). If the ALJ discredits subjective testimony on
credibility grounds, he must articulate explicit and adequate reasons for doing so,
and failure to articulate reasons for discrediting subjective testimony requires, as a
matter of law, that the testimony be accepted as true. Id.Here, the ALJ properly articulated the pain standard and the factors to
consider when evaluating Heppell-Libsansky’s pain and other subjective
symptoms. After considering the medical findings of over 10 doctors and Heppell-
Libsansky’s own testimony, the ALJ found that Heppell-Libsansky’s description
of her symptoms was “considerably more limited and restricted than [was]
established by the medical evidence, her own contemporaneous statements to
treating sources, and medical source opinions.” This finding is explicit and
adequate to discredit Heppell-Libsansky’s testimony and supported by substantial
evidence.
Finally, Heppell-Libsansky argues that the hypothetical question to the VE
was improper because it did not include all of her impairments and that it
improperly included a sit/stand option, even though this option typically applies to
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professional or managerial positions. In order for a VE’s testimony to constitute
substantial evidence, the ALJ must pose a hypothetical question that includes all of
the claimant’s impairments. See Wilson v. Barnhart, 284 F.3d 1219, 1227 (11th
Cir. 2002). Simply put, from our thorough review of the record, the hypothetical
posed to the VE, which included weight limitations and an option to alternate
between sitting and standing, encompassed all relevant limitations the ALJ found
in his RFC assessment. As we noted above, the ALJ expressly discredited
Heppell-Libsansky’s subjective testimony to the extent it did not conform to
objective medical evidence. We found no error in the ALJ’s reasoning for
discrediting the subjective complaints and, accordingly, the limitations described
by Heppell-Libsansky but not supported by objective medical evidence did not
need to be included in the hypothetical to the VE.5
5
Heppell-Libsansky also attacks the ALJ’s use of the sit/stand option because the jobs
identified by the VE were not professional or managerial. Social Security Regulation 83-12, in
pertinent part, provides:
There are some jobs in the national economy--typically professional and
managerial ones--in which a person can sit or stand with a degree of choice. If an
individual had such a job and is still capable of performing it, or is capable of
transferrng work skills to such jobs, he or she would not be found disabled.
However, most jobs have ongoing work processes which demand that a worker be
in a certain place or posture for at least a certain length of time to accomplish a
certain task. Unskilled types of jobs are particularly structured so that a person
cannot ordinarily sit or stand at will. In cases of unusual limitation of ability to sit or
stand, a VS should be consulted to clarify the implications for the occupational base.
Social Security Regulation 83-12 (emphasis added). In this case, the VE clarified that the jobs she
identified, although not professional or managerial in nature, did provide for a sit/stand option.
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Based on the foregoing, substantial evidence supports the ALJ’s decisions
with respect to weighing the evidence, evaluating Heppell-Libsansky’s
impairments, and posing a hypothetical question to the VE. Accordingly, we
affirm.
AFFIRMED.
Accordingly, the ALJ’s hypothetical to the VE was proper and the VE testimony constituted
substantial evidence to support the Commissioner’s decision.
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