Susan H. Brown v. Commissioner of Social Security , 680 F. App'x 822 ( 2017 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-11340
Non-Argument Calendar
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D.C. Docket No. 8:15-cv-00453-EAK-TBM
SUSAN H. BROWN,
Plaintiff-Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(February 22, 2017)
Before TJOFLAT, MARCUS and WILLIAM PRYOR, Circuit Judges.
PER CURIAM:
Susan Brown appeals the district court’s order affirming the decision of an
administrative law judge (“ALJ”) to deny her application for disability insurance
benefits (“DIB”), pursuant to 42 U.S.C. § 405(g). She argues that the ALJ erred
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by: (1) not specifying the weight assigned to the opinions of her treating
physicians; (2) not fully developing the record and not crediting her subjective
complaints of side effects from her medications and disabling pain caused by her
fibromyalgia; (3) failing to properly address her diagnoses for irritable bowel
syndrome (“IBS”) and gastroesophageal reflux disease (“GERD”) in his opinion
and when making his residual functional capacity (“RFC”) determination; and (4)
not adopting the vocational expert’s (“VE”) response to a hypothetical question
about a person who frequently missed work. After thorough review, we affirm.
When the Appeals Council denies review of the ALJ’s decision, we review
the ALJ’s decision as the Commissioner’s final decision. Doughty v. Apfel, 245
F.3d 1274, 1278 (11th Cir. 2001). We review the ALJ’s decision for substantial
evidence, and the application of legal principles de novo. Moore v. Barnhart, 405
F.3d 1208, 1211 (11th Cir. 2005). Substantial evidence is less than a
preponderance and is relevant evidence that a reasonable person would accept as
adequate to support a conclusion. Id. We, therefore, will not decide the facts
anew, reweigh the evidence, or make credibility determinations. Id.
First, we disagree with Brown’s claim that the ALJ committed reversible
error by not specifying the weight assigned to her treating physicians’ opinions.
Federal regulations define “medical opinions” as “statements from physicians . . .
or other acceptable medical sources that reflect judgments about the nature and
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severity of [a patient’s] impairment(s), including [her] symptoms, diagnosis and
prognosis, what [she] can still do despite impairment(s), and [her] physical or
mental restrictions.” 20 C.F.R. § 404.1527(a)(2). The opinion of a treating
physician must be given substantial or considerable weight unless “good cause” is
shown to the contrary. Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1179
(11th Cir. 2011). We’ve found “good cause” to exist when: (1) the opinion was
not bolstered by the evidence; (2) the evidence supported a contrary finding; or (3)
the opinion was conclusory or inconsistent with the doctor’s own medical records.
Id. The ALJ must specify the weight given to medical opinions and state the
reasons for giving such weight. Id. Failure to “specify what weight is given to a
treating physician’s opinion and any reason for giving it no weight” is reversible
error. MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986). An ALJ may
rely on opinions of non-examining sources that do not conflict with those of
examining sources. Edwards v. Sullivan, 937 F.2d 580, 584-85 (11th Cir. 1991).
Here, Brown’s treating physicians -- Drs. Lipson, Bala, Vargas, Clement,
and Lubin -- all produced records that described Brown’s symptoms, reported test
results, and made diagnoses and assessments of her medical conditions. To the
extent these reports qualified as medical opinions, the ALJ erred by failing to
specify the weight assigned to them. See 20 C.F.R. § 404.1527(a)(2); Winschel,
631 F.3d at 1179. Nonetheless, any error by the ALJ in failing to specify weight
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was harmless. See, e.g., Bass v. McMahon, 499 F.3d 506, 510 (6th Cir. 2007)
(“[The] failure to explicitly state how much weight the ALJ was providing such
observations is harmless . . . because the ALJ’s opinion is completely consistent
with such observations”); Schomas v. Colvin, 732 F.3d 702, 707 (7th Cir. 2013)
(applying harmless error review to an ALJ’s failure to specify why controlling
weight was given to one opinion); Keyes-Zachary v. Astrue, 695 F.3d 1156, 1165
(10th Cir. 2012) (“Any error in failing to specify the weight given to the opinion
was harmless”). As the ALJ’s decision makes clear, Brown’s treating physicians’
opinions were considered in detail. For example, the ALJ noted the physicians’
findings of muscle tenderness and joint pain; their diagnoses of fibromyalgia, IBS,
and GERD; their abnormal findings in at least one range of motion and straight leg
raise test; and their prescription of medications, physical therapy, and epidural
shots. He added that the physicians’ objective findings were otherwise mostly
normal; conservative treatments usually were recommended; and epidurals and
medications provided relief. The ALJ also observed that no treating physician had
provided any specific limitations or restrictions that conflicted with his finding.
Rather, Brown’s physicians’ opinions simply constituted objective findings,
diagnoses, assessments, and treatment plans.
As for Brown’s claim that the ALJ erred in assigning great weight to the
opinion of Dr. Bancks, who was not a treating physician, we are unpersuaded. As
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the record shows, the ALJ determined that Dr. Bancks’s RFC determination was
consistent with Brown’s medical records overall. See Edwards, 937 F.2d at 584-
85. Nor can we say that the ALJ “rejected the findings and opinions” of Brown’s
treating physicians about her fibromyalgia. The record reveals that the ALJ made
the explicit finding that she suffered from fibromyalgia and that it constituted a
severe impairment. Accordingly, the ALJ did not commit reversible error by
failing to specify the weight given to any opinions.
We also find no merit to Brown’s claim that the ALJ failed to develop the
record and credit her complaints. Under federal regulations, if the record shows
that a claimant has a medically determinable impairment that could reasonably be
expected to produce her symptoms, the ALJ must evaluate the intensity and
persistence of the symptoms in determining how they limit the claimant’s capacity
for work. 20 C.F.R. § 404.1529(c)(1). In doing so, the ALJ considers all of the
record, including the objective medical evidence, the claimant’s history, and
statements of the claimant and her doctors. Id. § 404.1529(c)(1)-(2). The ALJ
may consider other factors, such as: (1) the claimant’s daily activities; (2) the
location, duration, frequency, and intensity of the pain or other symptoms; (3) any
precipitating and aggravating factors; (4) the type, dosage, effectiveness, and side
effects of the claimant’s medication; (5) any treatment other than medication; (6)
any measures the claimant used to relieve her pain or symptoms; and (7) other
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factors concerning the claimant’s functional limitations and restrictions due to her
pain or symptoms. Id. § 404.1529(c)(3). The ALJ then examines the claimant’s
statements regarding her symptoms in relation to all other evidence, and considers
whether there are any inconsistencies or conflicts between those statements and the
record. Id. § 404.1529(c)(4). “After considering a claimant’s complaints of pain,
the ALJ may reject them as not creditable, and that determination will be reviewed
for substantial evidence.” Marbury v. Sullivan, 957 F.2d 837, 839 (11th Cir.
1992). The ALJ must explicitly and adequately articulate his reasons if he
discredits subjective testimony. Id.
The ALJ has the basic obligation to develop the record fully and fairly, but
the claimant has the burden of proving that she is disabled and the responsibility of
producing evidence in support. Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir.
2003). We’ve said that the side effects of medications could render a claimant
disabled or contribute to her disability, and the ALJ has a duty to investigate these
side effects. Cowart v. Schweiker, 662 F.2d 731, 737 (11th Cir. 1981). An ALJ’s
determination that medication side effects do not present a significant problem is
supported by substantial evidence if the claimant made only an isolated complaint
about the side effects and the record does not suggest her doctors were concerned
about the side effects. Swindle v. Sullivan, 914 F.2d 222, 226 (11th Cir. 1990).
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Here, the ALJ did not err in finding Brown’s subjective complaints only
partially credible. For starters, the record does not support her assertion that the
ALJ failed to properly consider her side effects. In his discussion of her RFC, the
ALJ noted her testimony that her medications caused drowsiness and constipation.
The ALJ also recognized that Brown complained to Dr. Clements of blurry vision
caused by one medication and that she complained to Dr. Lubin of constipation.
Thus, the ALJ did not fail in his duty to consider her side effects in determining her
RFC. Compare with Cowart, 662 F.2d at 737.
Nor does the record support Brown’s assertion that the ALJ failed to
articulate his reasons for only partially crediting her testimony. As we’ve already
discussed, the ALJ conducted a detailed review of Brown’s medical history, noted
the activities she was still capable of performing, compared the evidence with Dr.
Bancks’s RFC determination, and concluded that her impairments were not as
intense, severe, or limiting as she claimed. See 20 C.F.R. § 404.1529(c)(1)-(4).
Moreover, substantial evidence supports the ALJ’s determination that Brown
was only partially credible. As the record reveals, no physician suggested that
Brown was unable to work or perform daily activities due to her conditions. In
addition, despite her complaints of pain, her doctors reported mostly normal
observations. For example, Dr. Lipson stated that Brown’s MRI revealed mild
vertebral spurs, but was otherwise essentially normal. Over the course of several
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visits, Dr. Bala noted once that Brown was having difficulty standing and walking,
but otherwise reported few abnormal findings. Dr. Chappel analyzed her MRIs
and determined that her brain and lumbar spine were normal. Dr. Clement
assessed her fibromyalgia, but reported normal findings otherwise. And although
she was diagnosed as having a goiter, Dr. Miller did not believe the goiter was
causing her symptoms. Indeed, with the exception of surgery for her carpal tunnel
syndrome, her doctors primarily recommended conservative treatments -- like
prescription medications, physical therapy, and diet and exercise. What’s more,
her treatments in 2013 -- including epidural shots, medications, ice, heat, and
immobilization -- appeared to provide her with relief, and her doctors adjusted her
prescriptions during that time to address their side effects. Finally, Brown herself
said in her evaluation at Hope Counseling Center and at her hearing that she was
still able to engage in a range of activities, despite the pain her conditions caused.
On this record, the ALJ’s determination that Brown’s symptoms did not limit her
capacity for work to the extent she claimed was supported by substantial evidence.
See 20 C.F.R. § 404.1529(c)(1)-(4); Moore, 405 F.3d at 1211.
We are also unpersuaded by Brown’s claim that the ALJ failed to properly
address her diagnoses for IBS and GERD in his opinion and when making his RFC
determination. The social security regulations outline a five-step, sequential
evaluation process to determine whether a claimant is disabled. See 20 C.F.R. §
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404.1520(a)(4). The ALJ must evaluate whether: (1) the claimant engaged in
substantial gainful activity; (2) the claimant has a severe impairment; (3) the severe
impairment meets or equals an impairment in the Listing of Impairments; (4) the
claimant has the RFC to perform past relevant work; and (5) in light of the
claimant’s RFC, age, education, and work experience, there are other jobs the
claimant can perform. Phillips v. Barnhart, 357 F.3d 1232, 1237 (11th Cir. 2004);
20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). If the ALJ determines that the
claimant is not disabled at any step of the evaluation process, the inquiry ends. 20
C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
If a claimant alleges several impairments, the Commissioner must consider
the impairments in combination to decide whether the combined impairments
render her disabled. Jones v. Dep’t of Health & Human Servs., 941 F.2d 1529,
1533 (11th Cir. 1991). This duty applies even when the impairments considered
separately are not severe. Hudson v. Heckler, 755 F.2d 781, 785 n.2 (11th Cir.
1985). An ALJ’s statement that the claimant did not have an impairment or
combination of impairments that rendered her disabled constitutes evidence that he
considered the combined effects of her impairments. Wilson v. Barnhart, 284 F.3d
1219, 1224 (11th Cir. 2002).
When performing the five-step sequential evaluation process in this case, the
ALJ did not err in failing to assign a specific level of severity to Brown’s IBS and
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GERD. Under the regulations, once the ALJ proceeded beyond Step Two of the
sequential evaluation, he did not need to specify the severity of each of Brown’s
individual impairments. See 20 C.F.R § 404.1520(a)(4). Rather, the ALJ was
required to consider all her impairments -- severe or non-severe -- in combination.
See Hudson, 755 F.2d at 785 n.2. In making his RFC determination, the ALJ
noted that Brown testified to having IBS and GERD; she visited a gastrointestinal
specialist with reports of abdominal pain; the specialist diagnosed her with GERD,
IBS, and gastritis; and she was prescribed antibiotics and a high fiber diet. Thus,
as the record indicates, the ALJ sufficiently addressed Brown’s medical records
and the ultimate RFC determination was supported by substantial evidence.
Moreover, nothing in the record suggested that Brown’s IBS or GERD had any
significant limiting effects on her functional capacity beyond causing some
abdominal discomfort. Thus, the ALJ properly assessed Brown’s IBS and GERD
diagnoses, and did not err in making his RFC determination.
Finally, we reject Brown’s claim that the ALJ erred in his evaluation process
by not adopting the vocational expert’s response to a hypothetical question
describing a person who would be frequently off task and absent from work. In
performing the five-step, sequential evaluation process, an examiner who
concludes that a claimant is unable to do past relevant work must then proceed to
the “final step of the evaluation process to determine whether in light of ‘residual
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functional capacity,’ age, education, and work experience the claimant can perform
other work.” Wilson, 284 F.3d at 1227. The ALJ may determine whether the
claimant has the ability to adjust to other work in the national economy by use of a
vocational expert. Winschel, 631 F.3d at 1180. “[F]or a vocational expert’s
testimony to constitute substantial evidence, the ALJ must pose a hypothetical
question which comprises all of the claimant’s impairments.” Id. (quotation
omitted). “The hypothetical need only include the claimant’s impairments, not
each and every symptom of the claimant.” Ingram v. Comm’r of Soc. Sec., 496
F.3d 1253, 1270 (11th Cir. 2007) (quotation and citation omitted). The ALJ need
not include findings in the hypothetical that the ALJ found to be unsupported.
Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1161 (11th Cir. 2004).
Here, after determining that she could not perform her past relevant work,
the ALJ, as required, moved to the fifth step of the sequential evaluation to
determine whether other jobs existed for her. In the hearing, the ALJ’s first
hypothetical to the VE described an individual who performed light work except
with frequent pushing and pulling using the upper extremities and occasional
postural movements. Based on a review of Brown’s medical records, the ALJ
determined that Brown’s RFC was the same as the individual described in the first
hypothetical, and as we’ve said, that RFC was supported by substantial evidence.
In addition, the VE’s response to the first hypothetical constituted substantial
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evidence of Brown’s ability to work. See Winschel, 631 F.3d at 1180. As for
Brown’s claim that her impairments would cause her to be absent and off task in
excess of employer tolerances, there is no support in the record for this claim. As a
result, the ALJ was not required to rely on the VE’s response to the fourth
hypothetical. See Crawford, 363 F.3d at 1161. In short, the ALJ did not err in
determining that jobs existed in the national economy that Brown could perform.
AFFIRMED.
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