Ignacio Ybarra v. Commissioner of Social Security , 658 F. App'x 538 ( 2016 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-14793
Non-Argument Calendar
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D.C. Docket No. 1:14-cv-22224-MGC
IGNACIO YBARRA,
Plaintiff-Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(September 29, 2016)
Before HULL, MARCUS, and ANDERSON, Circuit Judges.
PER CURIAM:
Plaintiff Ignacio Ybarra (“Ybarra”) appeals the district court order affirming the
Commissioner of Social Security’s denial of his application for disability benefits.
For the reasons set forth below, we affirm the district court.
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I. Background
Plaintiff Ybarra applied for disability insurance benefits and supplemental security
income benefits under Titles II and XVI of the Social Security Act. See 42 U.S.C.
§§ 401–34 (2012); id. §§ 1381–1383f. Ybarra alleged disability as a result of back
pain, issues with his right shoulder, hypertension, and depression. After Ybarra’s
administrative claims were twice denied, he requested a hearing before an
Administrative Law Judge (“ALJ”).
After conducting the Social Security Administration’s five-step sequential
review process, see 20 C.F.R. § 404.1520(a)–(f) (2012), the ALJ found that Ybarra
was not disabled. Ybarra’s shoulder and back issues, hypertension, and depression
were “severe” impairments (step two), but these impairments did not meet or equal
the SSA’s listed criteria for disability (step three). The ALJ assessed Ybarra’s
residual functional capacity (“RFC”) and found that he could perform a range of
unskilled, medium work, but that he was unable to perform his past work as a
janitor, delivery driver, or warehouse-material handler (step four). The ALJ
determined, however, based in part on testimony by a vocational expert (“VE”),
that there existed jobs in the national economy, such as kitchen helper, industrial or
laboratory cleaner, or industrial cleaner and sweeper, that Ybarra could perform
(step five).
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The Appeals Council denied Ybarra’s request for review, and the district
court affirmed the agency’s decision. Ybarra timely appealed.
II. Discussion
In Social Security appeals, we review de novo the determination of a district court
that the ALJ’s decision is supported by substantial evidence. Wilson v. Barnhart,
284 F.3d 1219, 1221 (11th Cir. 2002) (per curiam) (citing Falge v. Apfel, 150 F.3d
1320, 1322 (11th Cir. 1998)). We also review de novo the legal principles on
which the ALJ’s decision is based. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th
Cir. 2005) (per curiam) (citing Chester v. Bowen, 792 F.2d 129, 131 (11th Cir.
1986) (per curiam)).
“Substantial evidence is more than a scintilla, but less than a preponderance.
It is such relevant evidence as a reasonable person would accept as adequate to
support a conclusion.” Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir.
1983) (citing Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427
(1971)). In deciding whether substantial evidence supports the Commissioner’s
decision, we may not “decide facts anew, reweigh the evidence, or substitute our
judgment for that of the [Commissioner.]” Dyer v. Barnhart, 395 F.3d 1206, 1210
(11th Cir. 2005) (per curiam) (alteration in original) (quoting Phillips v. Barnhart,
357 F.3d 1232, 1240 n.8 (11th Cir. 2004)). If the Commissioner’s decision is
supported by substantial evidence, it is conclusive, even if the evidence
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preponderates against it. 42 U.S.C. § 405(g) (2012); Crawford v. Comm’r of Soc.
Sec., 363 F.3d 1155, 1158–59 (11th Cir. 2004) (per curiam) (citing Martin v.
Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)).
Ybarra argues that the ALJ improperly determined that he was not fully
credible. Credibility determinations are the province of the ALJ, and will not be
overturned unless not supported by substantial evidence. Moore, 405 F.3d at 1212.
Here, the ALJ’s finding was supported by substantial evidence. Ybarra’s
testimony was inconsistent with his medical records in several places. He testified
that he had not worked after March 2010, but according to his medical records, he
was employed after this date. He testified that physical therapy did not help, but
his medical records detail improvement in his symptoms. He testified that his
physician recommended surgery, but this is not substantiated by the record.1 The
ALJ’s finding that Ybarra was not fully credible was supported by substantial
evidence.2
1
Plaintiff cites a Social Security Ruling, SSR 96-7p, 1996 WL 374186 at *1 (July 2, 1996), for
the proposition that “[a]n individual’s statements about the intensity and persistence of pain or
other symptoms or about the effect the symptoms have on his or her ability to work may not be
disregarded solely because they are not substantiated by medical evidence.” Id. at *1 (emphasis
added). But here, as discussed, the ALJ articulated other grounds for not crediting Ybarra’s
testimony supported by evidence in the record, as required by SSR96-7p. See id. at *2.
2
Plaintiff is correct that the ALJ relied on Ybarra’s deferral of steroid injections without
considering whether Ybarra might have deferred the injections because he could not afford them.
This was inappropriate. See Henry v. Comm’r of Soc. Sec., 802 F.3d 1264, 1269 (holding that
ALJ committed reversible error in failing to consider whether a claimant’s failure to seek
treatment was due to his financial circumstances); SSR 96-7p, 1996 WL 374186 at *7–8 (“[T]he
adjudicator must not draw any inferences about an individual's symptoms and their functional
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Ybarra next argues that the ALJ erred in discounting the opinion of Ybarra’s
treating physician, Dr. Hamlet Hassan (“Dr. Hassan”). In determining the weight
to give a physician’s opinion, the ALJ should consider the relationship between the
physician and the claimant (treating and examining physicians being given more
weight); the extent to which medical evidence supports the opinion; the opinion’s
consistency with the record as a whole; the physician’s specialization; and other
relevant factors. See 20 C.F.R. §§ 404.1527(c), 416.927(c) (2012). An ALJ may
not discount a treating physician’s opinion without articulating good cause for
doing so. See Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1179 (11th Cir.
2011). Acceptable reasons for discounting the opinion of a treating physician are
that it is conclusory; it is unsupported by medical evidence; it is inconsistent with
the record as a whole; or other evidence supports a contrary finding. See
Crawford, 363 F.3d at 1159 (holding that treating physician’s testimony was
properly discounted when it was inconsistent with physician’s own treatment
reports and the record as a whole and appeared to be based on patient’s subjective
effects from a failure to seek or pursue regular medical treatment without first considering any
explanations that the individual may provide, or other information in the case record, that may
explain infrequent or irregular medical visits or failure to seek medical treatment. . . . For
example: . . . The individual may be unable to afford treatment . . . .”). While Ybarra did not
offer this explanation, it was clear from the record that he was uninsured when he deferred
steroid injections. However, the ALJ’s determination as to Ybarra’s credibility was amply
supported by other substantial evidence, unlike in Henry, where it appears that the sole reason
for discounting the claimant’s credibility was his failure to seek treatment. See 802 F.3d at 1269.
Accordingly, we will not disturb the ALJ’s credibility determination because it was supported by
substantial evidence.
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complaints); Phillips, 357 F.3d at 1241 (holding that treating physician’s testimony
was properly discounted when it was inconsistent with physician’s treating notes
and claimant’s testimony). Here, the ALJ pointed to inconsistencies between Dr.
Hassan’s opinion and his treatment notes and inconsistencies between the opinion
and the notes of other treating physicians. Accordingly, the ALJ’s decision to
discount Dr. Hassan’s opinion was supported by substantial evidence.
Ybarra argues that the ALJ’s RFC was not supported by substantial evidence
because there were inconsistencies between the ALJ’s own conclusions at different
stages of the sequential evaluation. Ybarra first argues that that the RFC did not
take into account the ALJ’s step-two finding that Ybarra’s severe right-shoulder
pain constitutes a severe impairment. This argument is without merit. A
conclusion that an impairment is “severe” for the purposes of step two of the
enquiry does not dictate the outcome at step four.3 See Moore, 405 F.3d at 1213
n.6 (“[T]he mere existence of [severe] impairments does not reveal the extent to
which they limit [the] ability to work or undermine the ALJ's determination . . . .”).
Here, the ALJ relied on evidence from Ybarra’s medical reports that Ybarra’s
shoulder impairment did not significantly affect his activities of daily living, could
be managed with pain medication, and had only a limited effect on his range of
3
At step two, the ALJ must determine whether the claimant has severe impairments. See 20
C.F.R. § 404.1520(a)(4)(ii). At step four, the ALJ is required to determine the claimant’s RFC.
See 20 C.F.R. § 404.1520(a)(4)(iv).
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movement. The ALJ took the impairment into account by limiting Ybarra to
medium work. With regard to Ybarra’s shoulder impairment, the RFC was
supported by substantial evidence.
Ybarra also alleges that the RFC did not take into account the findings of the
ALJ (at step three4) that Ybarra had “moderate” limitations in both social
functioning and ability to maintain concentration, pace, and persistence. Ybarra
further alleges that the ALJ credited, but the RFC did not take into account, the
findings of the state’s psychological expert, Dr. Sally Rowley (“Dr. Rowley”), that
he had “moderate” limitations in his ability to take criticism from supervisors and
to make plans independently. These arguments are meritless. The RFC limited
Ybarra to sustaining concentration for two-hour periods on “short, simple
instructions” and to an occupation “with only occasional contact with co-workers
and the general public on routine matters.” There is substantial record evidence to
support this determination. Notably, Dr. Rowley reported that Ybarra could “attent
[sic] for 2 hour intervals” and “c[ould] do [simple, routine repetitive tasks] with
reduced social contact.” The RFC adequately accounted for both the ALJ’s and
Dr. Rowley’s findings of mental limitations.5
4
At step three, the ALJ must determine whether the claimant meets or equals the listed criteria
for qualifying as disabled. See 20 C.F.R. § 404.1520(a)(4)(iii); id. § 404.1520(d) app. 1.
5
This conclusion is entirely consistent with our holding in Winschel. In Winschel, we held that
the VE’s answer to the ALJ’s hypothetical question did not constitute substantial evidence at step
five when that question omitted the moderate limitations regarding concentration, persistence,
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Ybarra’s allegation that hypothetical question posed by the ALJ to the VE
was defective also fails. At step five, the burden is on the Commissioner to prove
that other jobs that the claimant is able to perform exist in the national economy.
Wolfe v. Chater, 86 F.3d 1072 (11th Cir. 1996) (citing Francis v. Heckler, 749
F.2d 1562, 1566 (11th Cir. 1985)). “In order for a [VE’s] statement to constitute
substantial evidence, the ALJ must pose a hypothetical question which comprises
all of the claimant’s impairments.” Winschel, 631 F.3d at 1180 (quoting Wilson,
284 F.3d at 1227). Here, Ybarra does not dispute that the hypothetical question
took into account all the limitations found in the RFC. Consequently, Ybarra’s
contention fails because the criticisms that he aims at the hypothetical question are
identical to those leveled at the ALJ’s RFC, and, as discussed above, the RFC is
supported by substantial evidence.
Ybarra also accuses the ALJ of “playing doctor” in discounting Dr. Hassan’s
opinion. The ALJ may not make medical findings herself, see Marbury v.
and pace that the ALJ had found. 631 F.3d at 1180. However, here (as discussed) the RFC and
hypothetical question accounted for the limitations that the ALJ had previously found, even if
they did not use precisely the same language. Cf. Brothers v. Comm’r of Soc. Sec., — F. App’x
—, 2016 WL 1637955 at *1 (11th Cir. 2016) (“The [ALJ] was not required to refer to
supervisors when the residual functional capacity assessment and the hypothetical question
included a restriction on [the claimant’s] social interaction in the workplace.”). And Dr.
Rowley’s opinion supports the ALJ’s conclusion that the RFC and hypothetical question were
consistent with Ybarra’s limitations. Cf. Jarrett v. Comm’r of Soc. Sec., 422 F App’x 869, 872
(11th Cir. 2011) (“[A]n 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.”) (citing Winschel, 631 F.3d at 1181).
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Sullivan, 957 F.2d 837, 840 (11th Cir. 1992) (per curiam), but it is her
responsibility to resolve conflicting medical opinions. See Watson v. Heckler, 738
F.2d 1169, 1172 (11th Cir. 1984) (per curiam). Here, the ALJ did not usurp the
role of a physician. Rather, she weighed the credibility of Dr. Hassan’s opinion in
light of other record evidence, and she used the reports of Ybarra’s physicians and
Dr. Rowley’s opinion in coming to a determination.
Ybarra also contends that the ALJ erred in failing to develop a full and fair
record by not ordering a consultative examination. The ALJ has an obligation to
develop a full and fair record. Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir.
2003) (per curiam). However, the ALJ is not obliged to order a consultative
examination when the record contains sufficient evidence to support a
determination. See Doughty v. Apfel, 245 F.3d 1274, 1281 (11th Cir. 2001); see
also 20 C.F.R. § 404.1519a (2012). Here, as discussed above, even after the ALJ
discounted Dr. Hassan’s opinion, there was sufficient evidence in the record to
support the ALJ’s finding and the ALJ was not required to order a consultative
examination.
Because the ALJ applied the correct legal standard and her findings are
supported by substantial evidence, the decision of the district court must be
affirmed.
AFFIRMED.
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