Judylee C. Jarrett v. Commissioner of Social Security , 422 F. App'x 869 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-13911 ELEVENTH CIRCUIT
Non-Argument Calendar APRIL 11, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 6:09-cv-00793-GAP-DAB
JUDYLEE C. JARRETT,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(April 11, 2011)
Before EDMONDSON, PRYOR, and MARTIN, Circuit Judges.
PER CURIAM:
Judylee C. Jarrett appeals the district court’s order affirming the
administrative law judge’s (“ALJ”) denial of her application for Social Security
Disability Insurance benefits (“DIB”), 42 U.S.C. § 405(g), and Supplemental
Security Income (“SSI”) benefits, 42 U.S.C. § 1383(c)(3). In her application,
Jarrett alleged that she was disabled because of chronic depression, stress-related
anxiety, and bulimia. Jarrett argues (1) that the ALJ’s hypothetical questions to a
vocational expert did not adequately account for her difficulty in maintaining
concentration, persistence, and pace; (2) that good cause did not support the ALJ’s
decision not to give controlling weight to her treating physician’s responses to a
March 2007 questionnaire, and that the ALJ erred by giving great weight to the
opinions of non-examining state consultants; and (3) that the Appeals Council
erred by denying her request to recuse the ALJ on the basis of bias and unfair
treatment, and by failing to investigate her claim adequately as required by SSA
Publication No. 05-10071. After thorough review of the record and the parties’
briefs, we affirm.
I.
Jarrett first argues that the ALJ’s hypothetical questions to a vocational
expert did not adequately account for her difficulty in maintaining concentration,
persistence, and pace. In Social Security appeals, we review the decision of an
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ALJ as the Commissioner’s final decision when the ALJ denies benefits and the
Appeals Council denies review of the ALJ’s decision. Doughty v. Apfel, 245 F.3d
1274, 1278 (11th Cir. 2001). We review the Commissioner’s legal conclusions de
novo and consider whether the Commissioner’s factual findings are supported by
substantial evidence. Lewis v. Barnhart, 285 F.3d 1329, 1330 (11th Cir. 2002).
“Substantial evidence is less than a preponderance, but rather such relevant
evidence as a reasonable person would accept as adequate to support a
conclusion.” Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). We are
precluded from “deciding the facts anew, making credibility determinations, or
re-weighing the evidence.” Id.“The social security regulations establish a five-step evaluation process,
which is used to determine disability for both SSI and DIB claims.” Id.In order to receive disability benefits, the claimant must prove at step
one that he is not undertaking substantial gainful activity. At step two,
the claimant must prove that he is suffering from a severe impairment or
combination of impairments. At step three, if the claimant proves that
his impairment meets one of the listed impairments found in Appendix
1, he will be considered disabled without consideration of age,
education, and work experience. If the claimant cannot prove the
existence of a listed impairment, he must prove at step four that his
impairment prevents him from performing his past relevant work. At the
fifth step, the regulations direct the Commissioner to consider the
claimant’s residual functional capacity, age, education, and past work
experience to determine whether the claimant can perform other work
besides his past relevant work.
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Doughty, 245 F.3d at 1278 (citations omitted).
At step five of the evaluation process, the burden shifts to the Commissioner
to prove that other jobs exist in the national economy that the claimant can
perform. Wolfe v. Chater, 86 F.3d 1072, 1077 (11th Cir. 1996). “The ALJ must
articulate specific jobs that the claimant is able to perform, and this finding must
be supported by substantial evidence, not mere intuition or conjecture.” Wilson v.
Barnhart, 284 F.3d 1219, 1227 (11th Cir. 2002). One manner of determining
whether the claimant is able to perform other work is for the ALJ to ask a VE
hypothetical questions “to establish whether someone with the limitations that the
ALJ has previously determined that the claimant has will be able to secure
employment in the national economy.” Phillips v. Barnhart, 357 F.3d 1232, 1240
(11th Cir. 2004). “In order for a [VE’s] testimony to constitute substantial
evidence, the ALJ must pose a hypothetical question which comprises all of the
claimant’s impairments.” Winschel v. Comm’r of Soc. Sec., No. 10-10620, ---
F.3d ----, 2011 WL 198372, at *3 (11th Cir. Jan. 24, 2011) (quotation marks
omitted).
In this case, the ALJ’s hypothetical questions adequately accounted for
Jarrett’s impairment in concentration, persistence, and pace. In one of the
hypotheticals, the ALJ asked the VE to assume an individual with Jarrett’s age,
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education, and work experience who could only “understand, remember, [and]
carry-out simple . . . tasks and concentrate for brief periods of time.” By including
that Jarrett had limitations in her ability to concentrate, this hypothetical question
adequately accounted for the ALJ’s finding that Jarrett had moderate difficulties in
concentration, persistence, and pace. See White v. Comm’r of Soc. Sec., 572 F.3d
272, 288 (6th Cir. 2009) (holding that a hypothetical adequately accounted for
limitations in concentration, persistence, and pace where ALJ expressly referenced
the claimant’s inability to maintain attention and concentration). Jarrett claims
that the ALJ failed to include in the hypothetical a specific time limitation on her
ability to concentrate. The medical evidence in the record, however, did not
support the use of a specific time period for which Jarrett could concentrate
because the physician opinions addressing the issue referred only to “variable
concentration” and Jarrett’s ability to concentrate for only “briefer time periods.”
Furthermore, an ALJ’s hypothetical restricting the claimant to simple and
routine tasks adequately accounts for restrictions related to concentration,
persistence and pace where the medical evidence demonstrates that the claimant
retains the ability to perform the tasks despite concentration deficiencies. See
Winschel, --- F.3d at ----, 2011 WL 198372, at *3 (“[W]hen medical evidence
demonstrates that a claimant can engage in simple, routine tasks or unskilled work
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despite limitations in concentration, persistence, and pace, courts have concluded
that limiting the hypothetical to include only unskilled work sufficiently accounts
for such limitations.”). In this case, the ALJ’s first hypothetical stated that the
individual “could follow simple instructions” and “complete simple tasks,” but
“may have difficulty dealing with stress and detailed tasks.” Notably, Dr. Eeltink,
one of the non-examining consultants, concluded that despite a moderate degree of
limitation in maintaining concentration, persistence, and pace, Jarrett was “able to
follow simple instructions, complete simple tasks, make decisions, avoid hazards,
and relate adequately to function in the workplace.” Similarly, Dr. Adams,
another non-examining consultant, found that Jarrett was “able to understand,
remember, and carry out simple tasks,” despite her moderate limitation in her
ability to maintain attention and concentration for an extended period. Thus, the
ALJ’s restriction to simple instructions and simple tasks in the first hypothetical
question sufficiently accounted for Jarrett’s limitations in concentration,
persistence and pace because, despite these limitations, the medical evidence in
the record demonstrated that Jarrett retained the ability to follow simple
instructions and complete simple tasks.
On these facts, we conclude that the ALJ’s hypothetical questions both
explicitly and implicitly accounted for Jarrett’s impairment in concentration,
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persistence, and pace.1 Substantial evidence therefore supports the ALJ’s finding
that there were a significant number of jobs that Jarrett could perform in the
national economy.
II.
Jarrett next argues that good cause did not support the ALJ’s decision not to
give controlling weight to the responses that her treating physician, Dr. Mian,
provided to a March 2007 questionnaire. She further contends that the ALJ erred
by giving great weight to the opinions of non-examining state consultants. In
determining whether a claimant is disabled, “[t]he 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.” Lewis v. Callahan, 125 F.3d 1436, 1440 (11th
Cir. 1997); see Winschel, --- F.3d at ----, 2011 WL 198372, at *2. But where the
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Our decisions in Richter v. Comm'r of Soc. Sec., 379 F. App’x 959 (11th Cir. 2010)
(unpublished), and Winschel, --- F.3d at ----, 2011 WL 198372, are not to the contrary. In those
cases, we held that an ALJ’s hypothetical question that restricted the VE’s inquiry to simple,
routine tasks or unskilled work did not adequately account for the claimant’s limitation in
concentration, persistence, and pace. Richter, 379 F. App’x at 959, 961; Winschel, --- F.3d at ---
-, 2011 WL 198372, at *3. But here, unlike in Richter and Winschel, the ALJ stated explicitly in
the hypothetical question that Jarrett had a limitation in her ability to concentrate for more than
brief periods of time. We also recognized in Richter and Winschel that a hypothetical question
could sufficiently account for such an impairment by including a restriction to simple or routine
tasks if the medical evidence demonstrates that the claimant has the ability to perform those tasks
despite a limitation in concentration, persistence, and pace. Richter, 379 F. App’x at 961;
Winschel, --- F.3d at ----, 2011 WL 198372, at *3. We found no such medical evidence in
Richter, 379 F. App’x at 961, and Winschel, --- F.3d at ----, 2011 WL 198372, at *4, but as noted
above, the record here supports such a finding in this case.
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ALJ articulates specific reasons for failing to give the opinion of a treating
physician controlling weight, and those reasons are supported by substantial
evidence, there is no reversible error. Moore, 405 F.3d at 1212.
The ALJ must give the opinion of a treating physician “substantial or
considerable weight unless good cause is shown to the contrary.” Phillips, 357
F.3d at 1240 (quotation marks omitted); see Winschel, --- F.3d at ----, 2011 WL
198372, at *2. “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.’” Winschel, --- F.3d at ----, 2011 WL 198372, at *2 (quoting
Phillips, 357 F.3d at 1240–41). We have held that an ALJ does not need to give a
treating physician’s opinion considerable weight if evidence of the claimant’s
daily activities contradicts the opinion. See Phillips, 357 F.3d at 1241.
Regulations require that an ALJ consider the opinions of non-examining
physicians, including state agency psychological consultants. 20 C.F.R.
§ 404.1527(f). The weight due to a non-examining physician’s opinion depends,
among other things, on the extent to which it is supported by clinical findings and
is consistent with other evidence. See id. § 404.1527(d)(3)-(4); see also Crawford
v. Comm’r of Soc. Sec., 363 F.3d. 1155, 1158, 1160 (11th Cir. 2004) (holding that
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the ALJ did not err in relying on a consulting physician’s opinion where it was
consistent with the medical evidence and findings of the examining physician).
Generally, the more consistent a physician’s opinion is with the record as a whole,
the more weight an ALJ should place on that opinion. 20 C.F.R. § 404.1527(d)(4).
The opinion of a non-examining physician is therefore entitled to little weight
when it contradicts the opinion of an examining physician. Lamb v. Bowen, 847
F.2d 698, 703 (11th Cir. 1988). But where a non-examining physician’s
assessment does not contradict the examining physician’s report, the ALJ does not
err in relying on the non-examining physician’s report. See Edwards v. Sullivan,
937 F.2d 580, 584–85 (11th Cir. 1991).
Here, good cause supported the ALJ’s decision not to give controlling
weight to Dr. Mian’s opinion, as expressed in the March 2007 questionnaire, that
Jarrett had marked difficulties in several mental abilities and was unable to
perform any type of work on a sustained basis. The ALJ articulated specific
reasons for not giving Dr. Mian’s opinion controlling weight, noting that the
opinion was inconsistent with Jarrett’s treatment records and her ability to perform
work between 1999 and 2004. Indeed, Dr. Mian’s treatment records show
numerous instances in which he indicated that Jarrett’s medications were working,
she was satisfied with the medications, her condition had improved, and she was
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stable. Additionally, Dr. Jacobs reported Jarrett’s global assessment of
functioning (“GAF”) score in the range of 61 to 70, which reflected mild
symptoms with some difficulty in social and occupational functioning. American
Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders 34 (4th
ed. 2000) (noting that GAF scores between 61 and 70 reflect mild symptoms, with
some difficulty in social and occupational functioning). Dr. Porcincula also
reported that Jarrett’s GAF was 60 to 65 when she was discharged after being
involuntarily committed and that her concentration and attention were adequate.
The evidence in the record regarding Jarrett’s daily activities also
contradicts Dr. Mian’s March 2007 opinion. Jarrett worked part time at a number
of jobs since she quit her job as a front desk concierge in 1998, she volunteered
two days a week for four hours at a hospital, and she was able to help care for her
elderly father by performing household chores. See Phillips, 357 F.3d at 1241(holding that an ALJ does not need to give a treating physician’s opinion
considerable weight if evidence of the claimant’s daily activities contradicts the
opinion). For these reasons, the ALJ had good cause to not give Dr. Mian’s March
2007 opinion substantial or considerable weight.
The ALJ also did not err in giving significant weight to the opinions of the
state agency medical consultants, Dr. Adams and Dr. Eeltink, regarding Jarrett’s
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functional limitations. Dr. Adams’s and Dr. Eeltink’s opinions were consistent
with Dr. Mian’s treatment records showing that Jarrett’s condition was stable and
with the GAF scores as determined by Dr. Jacobs and Dr. Porcincula. See
Crawford, 363 F.3d at 1158, 1160. Notably, the only opinion that Jarrett claims
contradicts Dr. Adams’s and Dr. Eeltink’s assessments is Dr. Mian’s responses in
the March 2007 questionnaire. However, as discussed above, the ALJ
appropriately concluded that Dr. Mian’s March 2007 opinion should be given little
weight because it was contradicted by his and Dr. Jacob’s treatment records.
Because Dr. Adams’s and Dr. Eeltink’s opinions did not otherwise contradict Dr.
Mian’s or any other doctor’s treatment records, the ALJ did not err in relying on
the reports of these non-examining physicians. See Edwards, 937 F.2d at 584–85.
For all these reasons, we conclude that the ALJ did not err in giving Dr.
Mian’s opinion little weight and instead crediting the opinions of the state agency
consultants, because their opinions were supported by the record.
III.
Finally, Jarrett contends that the Appeals Council erred by (1) denying her
request to recuse the ALJ on the basis of bias and unfair treatment and (2) failing
to investigate her claim adequately, as required by SSA Publication No. 05-10071.
Jarrett asserts that the ALJ was biased against her because her counsel had filed
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misconduct complaints against the ALJ in unrelated cases. The Social Security
Act requires that a claimant’s hearing be both full and fair. Miles v. Chater, 84
F.3d 1397, 1400 (11th Cir. 1996) (per curiam). The ALJ plays a “crucial role in
the disability review process” and has a duty to “develop a full and fair record”
and to “carefully weigh the evidence, giving individualized consideration to each
claim.” Id. at 1401. Because the ALJ’s decision will typically be the final word
given our standard of review, the ALJ’s impartiality is “integral to the integrity of
the system.” Id. The ALJ thus must “not conduct a hearing if he or she is
prejudiced or partial with respect to any party or has any interest in the matter
pending for decision.” Id. at 1400 (quoting 20 C.F.R. § 404.940).
If a claimant fears that a particular ALJ will not provide a fair hearing, she
must notify the ALJ at the “earliest opportunity.” 20 C.F.R. § 404.940. If the ALJ
then declines to recuse herself, the claimant may seek reconsideration by raising
the issue before the Appeals Council. Id. The current version of SSA Publication
No. 05-10071 provides:
If you think any ALJ treated you unfairly, you should tell us about it
and ask us to look into it. You can ask even while we are deciding
your claim for benefits.
...
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Someone who has not been handling your claim before will look into
the information you gave us in the complaint. You will be advised
when the matter is closed.
If you also appealed the decision on your claim and included
information about your complaint, the Appeals Council will address
your complaint when responding to your appeal.
SSA Pub. No. 05-10071 (2010).
Contrary to Jarrett’s assertion, the Appeals Council correctly followed these
procedures for handling claims of bias on appeal and found that there was no
evidence of bias or unfair treatment by the ALJ. Jarrett presented her claim to the
Appeals Council that she did not receive a full and fair hearing before the ALJ
presiding over the case. 20 C.F.R. § 404.940. The Appeals Council addressed her
complaint of bias in its notice of action. The Appeals Council noted that it had
reviewed Jarrett’s allegations and studied the entire record, including the hearing
decision and hearing testimony. The Appeals Council also informed Jarrett of the
results of its review, stating that it found no evidence that the ALJ was biased or
that the hearing was unfair. See SSA Pub. No. 05-10071 (2010). Furthermore,
Jarrett has failed to allege any specific instances of the ALJ’s bias in her case. We
therefore conclude that Jarrett has failed to show either that her disability hearing
was not full and fair or that the Appeals Council did not follow its procedures in
reviewing her bias claim.
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IV.
The ALJ did not commit any legal error in determining that Jarrett was not
disabled, and substantial evidence supports that conclusion. Further, Jarrett has
failed to establish that the Appeals Council erred in reviewing and adjudicating
her bias claim. For all of these reasons, we affirm.
AFFIRMED.
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