Denise M. Womble v. Commissioner of Social Security , 705 F. App'x 923 ( 2017 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-17116
Non-Argument Calendar
________________________
D.C. Docket No. 8:15-cv-01328-DNF
DENISE M. WOMBLE,
Plaintiff-Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(August 30, 2017)
Before MARTIN, JULIE CARNES, and ANDERSON, Circuit Judges.
PER CURIAM:
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Appellant Denise Womble appeals the magistrate judge’s order affirming the
Commissioner of Social Security’s (“the Commissioner”) decision denying her
application for a period of disability and disability insurance benefits. On appeal,
she argues that substantial evidence did not support the Administrative Law
Judge’s (“ALJ”) decision to assign minimal weight to the opinions of her treating
physicians. She also asserts that the ALJ failed to properly consider her irritable
bowel syndrome (“IBS”) and hand tremors. After careful review, we affirm.
I. BACKGROUND
In 2011, Womble filed an application for a period of disability and disability
insurance benefits with the Social Security Administration. Alleging a disability
onset date of July 23, 2008, she represented that she was disabled and unable to
work due to a back injury, lupus, hypertension, asthma, IBS, and thyroid problems.
The Commissioner denied Womble’s application for benefits upon initial review
and reconsideration.
At a subsequent hearing before the ALJ, Womble testified that she stopped
working as a glass installer in 2008 because the job required her to lift, bend, and
twist. Her back pain was the main reason she had stopped working. She had tried
physical therapy and surgery was not an option, as she would not survive an
operation due to her underlying problems. She had also developed a tremor in her
right hand which causes her to spill things. She testified that her IBS flares up two
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to three times per week, and when she has an episode, she needs to use the
bathroom every 15 to 20 minutes for about an hour.
The ALJ also heard testimony from a vocational expert. The vocational
expert opined that Womble would not be able to perform her past relevant work as
a glass installer if she were limited to light work with minimal exposure to irritants
such as perfumes, odors, and gases. However, the jobs of a merchandise marker or
an inspector met the requirements of light work with limited exposure to
environmental irritants. The vocational expert further opined that if a hypothetical
person were limited to sedentary work with the same environmental restrictions,
the person could work in clerical support, as an inspector, or as an assembler. If
the person required semiskilled to unskilled work with a sit/stand option, the
vocational expert stated that the person could perform work as an office helper, an
inspector, or a general clerk.
Following the hearing, the ALJ issued a decision, concluding that Womble
was not disabled for purposes of establishing eligibility for a period of disability or
disability insurance benefits. Upon review of the record evidence, the ALJ
determined that Womble’s back disorder was a severe impairment. The ALJ noted
that although Womble had alleged several other impairments and ailments, the
medical evidence did not establish that her complaints pertaining to lupus,
hypertension, asthma, or IBS were medically determinable and/or severe
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impairments. The ALJ next determined that Womble did not have an impairment
or combination of impairments that met or equaled any of the listed impairments in
the Social Security Administration regulations.
The ALJ further concluded that Womble had the residual functional capacity
to perform light work with the additional restriction of avoiding excessive
exposure to fumes, gases, chemicals, and perfumes. The ALJ reviewed the
medical evidence, including the opinions of Womble’s treating physicians Dr.
Andrew Fine and Dr. Rickey Wiseman, who both opined that Womble was
disabled—as well as the opinion of the state agency medical consultant who
determined that Womble could perform light work. The ALJ assigned little weight
to the opinions of Drs. Fine and Wiseman, concluding that the opinions were not
supported by the medical record and were based primarily on Womble’s subjective
complaints.
In light of Womble’s assessed residual functional capacity, the ALJ
determined that Womble could not perform her past relevant work installing glass.
Nevertheless, based on her residual functional capacity, in conjunction with the
vocational expert’s testimony that Womble could perform work as an office helper,
merchandise marker, or inspector, the ALJ concluded that work existed in the
national economy that Womble could perform. Accordingly, the ALJ concluded
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that Womble was not disabled. The Appeals Council denied Womble’s request for
review.
In 2015, Womble, represented by counsel, filed a complaint in district court
challenging the ALJ’s denial of benefits. She argued in relevant part that the ALJ
failed to articulate good cause for assigning less weight to the opinions of her
treating physicians. She also argued that the ALJ erred by minimizing the severity
of her IBS and hand tremors.
Based on the consent of the parties, the case was assigned to a magistrate
judge. The magistrate judge affirmed the Commissioner’s denial of a period of
disability and disability insurance benefits and this appeal followed.
II. DISCUSSION
A. General Principles
We review the ALJ’s decision for substantial evidence, but its application of
legal principles de novo. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir.
2005). “Substantial evidence is more than a scintilla and is such relevant evidence
as a reasonable person would accept as adequate to support a conclusion.”
Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004)
(quotations omitted). We may not reweigh the evidence and decide the facts anew,
and must defer to the ALJ’s decision if it is supported by substantial evidence. See
Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005).
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To determine whether a claimant is disabled, the ALJ must complete a five-
step sequential evaluation process. Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir.
1999). The claimant has the burden to prove that (1) she “has not engaged in
substantial gainful activity,” (2) she “has a severe impairment or combination of
impairments,” and (3) her “impairment or combination of impairments meets or
equals a listed impairment” such that she is entitled to an automatic finding of
disability. Id. If the claimant is not able to meet or equal the criteria for a listed
impairment, she must proceed to the fourth step, which requires showing that she is
unable to do her past relevant work. Id. “At the fifth step, the burden shifts to the
Commissioner to determine if there is other work available in significant numbers
in the national economy that the claimant is able to perform.” Id. If the
Commissioner demonstrates that there are jobs that the claimant can perform, the
claimant must show that she is unable to perform those jobs in order to establish
that she is disabled. Id.B. Weight Assigned to Opinions of Womble’s Treating Physicians
Womble argues that the ALJ failed to articulate good cause for discrediting
the opinions of her treating physicians, Drs. Fine and Wiseman, who opined that
she was unable to work due to the severity of her back impairment.
When evaluating the medical opinion evidence, the ALJ must give the
opinion of a treating physician “substantial or considerable weight” unless there is
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good cause not to do so. Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1179
(11th Cir. 2011) (quotations omitted); 20 C.F.R. § 404.1527(c)(2) (stating that the
opinion of a treating physician will be given controlling weight if it is supported by
medically acceptable and laboratory diagnostic techniques and is not inconsistent
with the other substantial evidence in the record). A treating source is defined as
“[the claimant’s] own acceptable medical source who provides [the claimant] . . .
with medical treatment or evaluation and who has, or has had, an ongoing
treatment relationship with [the claimant].” 20 C.F.R. § 404.1527(a)(2).
We have nevertheless concluded that good cause exists for affording less
weight to a treating physician’s opinion when: “(1) [that] opinion was not bolstered
by the evidence; (2) evidence supported a contrary finding; or (3) [the] treating
physician’s opinion was conclusory or inconsistent with the doctor’s own medical
records.” Phillips v. Barnhart, 357 F.3d 1232, 1241 (11th Cir. 2004). If the ALJ
chooses to assign less weight to a treating physician’s opinion, however, he must
clearly articulate his reasons for doing so. Id.Womble’s medical record includes a treatment note from Dr. Fine, a
neurosurgeon, dated April 27, 2012, in which he stated that Womble was not able
to sit or stand for more than 15 minutes at a time without changing positions,
“mak[ing] her a poor candidate for pursuit of a new job.” On the same day, Dr.
Fine completed a medical source statement, in which he noted Womble’s lumbar
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spondylolisthesis and drop foot diagnoses and opined that she could only sit one
hour per eight-hour day and stand/walk one hour per eight-hour day. Womble’s
internist, Dr. Wiseman, completed a medical source statement on December 17,
2012, in which he opined that Womble could only sit for one hour per day and
stand/walk one hour per day. Further, she needed to lie down for six hours per
day. In a letter dated November 6, 2013, Dr. Wiseman stated that several
conditions, including Womble’s degenerative back disease and IBS “cause severe
disability and preclude her ability to work in any meaningful way.” The ALJ
discredited the opinions of Drs. Fine and Wiseman because the opinions were not
supported by the objective medical evidence, were rendered after significant gaps
in treatment, and contradicted the doctors own treatment notes.
Neither party contests that Dr. Fine and Dr. Wiseman are Womble’s treating
physicians. Therefore, their opinions are entitled to controlling weight unless good
cause exists for not assigning the opinions considerable weight. See Winschel, 631
F.3d at 1179. We conclude that substantial evidence supports the ALJ’s
articulation of good cause for discrediting these opinions because they were not
supported by the doctors’ own treatment notes, the objective medical evidence, and
appear to have been based primarily on Womble’s subjective complaints.
Specifically, Dr. Fine’s opinion was not supported by his own treatment
notes given Womble’s conservative and relatively infrequent treatment. Prior to
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rendering his opinion regarding Womble’s limitations in April 2012, Dr. Fine had
treated Womble for her back disorder only two times in 2008, once in January
2012, and once in April 2012. In fact, in a treatment note dated January 24, 2012,
Dr. Fine stated that he was seeing Womble for the first time in three-and-a-half
years. On the same day that Dr. Fine completed the medical source statement
opining that Womble was so disabled that she could not even perform sedentary
work, he did not schedule a follow-up appointment for another ten weeks.
Dr. Wiseman’s opinion regarding Womble’s limitations is likewise not
supported by his own treatment notes. Although Dr. Wiseman saw Womble for a
variety of ailments, including rosacea, IBS, and drop foot, he never treated her
back pain. Therefore, his opinion that Womble was disabled due to her
degenerative back disease appears to have been based on Womble’s subjective
complaints, which the ALJ found not credible. See Crawford, 363 F.3d at 1159(concluding that substantial evidence supported the ALJ’s decision to discount
treating physician’s opinion in part because it was based primarily on the
claimant’s subjective complaints).
Womble’s argument that the ALJ improperly focused on the lack of
treatment records is unavailing. The record clearly shows that Womble had a
three-and-a-half year gap in treatment by Dr. Fine, and that Dr. Wiseman did not
treat Womble for her back pain. Further, although the record shows that Womble
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saw Dr. Robert Kuskin, a chiropractor, between 2009 and 2011, Dr. Kushkin’s
treatment notes do not support Dr. Wiseman’s opinion that Womble needed to rest
or lay down for six hours per day.
The ALJ’s decision to give little weight to Dr. Fine’s and Dr. Wiseman’s
opinions is also supported by other evidence in the record. Despite concluding that
Womble was disabled and could sit for only one hour and stand/walk for only one
hour per eight-hour day, Womble was routinely prescribed physical therapy rather
than surgery. Moreover, the records showed that physical therapy, at times, had
improved Womble’s function and reduced her pain.
Further, Womble’s MRI in December 2011 showed grade I
spondylolisthesis and disc bulges. Yet, an examination that same month revealed
that her lumbar spine range of motion was mostly within normal limits, she scored
5/5 on almost all of the lower extremity muscle testing, and her straight leg raise
testing came back positive only on the right. In June 2012, Womble continued to
exhibit full muscle strength and was able to heel or toe walk and tandem walk
without difficulty. Additionally, Dr. Fine based his opinion regarding Womble’s
limitations in part on her drop foot diagnosis. However, Dr. Kyle Ruffing, a
neurologist, concluded in June 2012 that Womble’s complaint of drop foot was
“not clinically evident.”
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Womble argues that the ALJ’s failure to recognize her spondylolisthesis
diagnosis led to the improper discrediting of Dr. Fine’s opinion. We disagree.
Although the ALJ did not explicitly refer to the spondylolisthesis diagnosis, the
ALJ’s finding that Womble had a severe back impairment accounted for that
diagnosis. Moreover, the ALJ considered both Dr. Fine’s and Dr. Wiseman’s
opinions, which referred to the spondylolisthesis diagnosis. In short, the ALJ did
not discredit those opinions based on her failure to recognize Womble’s diagnosis.
Instead, she discredited them because the record did not support the degree of
limitation opined by those doctors.
Because good cause existed for discounting the opinions of Drs. Fine and
Wiseman, substantial evidence supports the ALJ’s decision to assign those
opinions less weight. See Hunter v. Soc. Sec. Admin., Comm’r, 808 F.3d 818, 823
(2015) (“We will not second guess the ALJ about the weight the treating
physician’s opinion deserves so long as he articulates a special justification for
it.”).
C. The ALJ’s Analysis of Womble’s IBS and Hand Tremors
Finally, Womble argues that the ALJ failed to properly analyze the severity
of her IBS and hand tremors. Though somewhat unclear, we interpret Womble to
argue that the ALJ erred (1) by finding that her IBS was not a medically
determinable impairment, and (2) by failing to account for her IBS and hand
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tremors in the residual functional capacity determination. Steps two and four of
the sequential evaluation process for determining whether a claimant is disabled
are relevant to Womble’s arguments.
At step two, the ALJ must consider the severity of the claimant’s
impairments. 20 C.F.R. § 404.1520(a)(4)(ii). An impairment is severe if it
“significantly limits [a claimant’s] physical or mental ability to do basic work
activities.” Id. § 404.1520(c). At step four, the ALJ considers whether the
claimant can do her past relevant work based on the ALJ’s assessment of her
residual functional capacity. 20 C.F.R. § 404.1520(a)(4)(iv). “[R]esidual
functional capacity is an assessment, based upon all of the relevant evidence, of a
claimant’s remaining ability to do work despite [her] impairments.” Lewis v.
Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997). In determining a claimant’s
residual functional capacity, the ALJ considers all of a claimant’s medically
determinable impairments, even those that are not considered severe. 20 C.F.R.
§ 404.1545(a).
Womble first argues that the ALJ erred at step two by determining that her
IBS was not a medically determinable impairment. We read the record differently,
however. In her decision, the ALJ stated that Womble had alleged that she
frequently needed to use the bathroom, but although the record contained an
assessment of IBS, it did not contain any treatment or resulting limitations. The
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ALJ then explained that an impairment is not severe “when medical and other
evidence establish only a slight abnormality or a combination of slight
abnormalities that would have no more than a minimal effect on an individual’s
ability to work.” Contrary to Womble’s contentions, we interpret the ALJ’s
statements to mean that she found Womble’s IBS not to be a severe impairment,
and not that the impairment was not medically determinable.
We are also unpersuaded by Womble’s argument that the ALJ failed to
consider her IBS and hand tremors in the residual functional capacity
determination. In making that determination, the ALJ noted Womble’s testimony
pertaining to the effects of her IBS and stated that she had considered the entire
record. Moreover, nothing in the record suggests that Womble’s IBS caused any
functional limitations in her ability to work apart from some abdominal cramping,
bloating, and “on-and-off diarrhea” with constipation. Cf. Moore, 405 F.3d at1213 n.6 (“[T]he mere existence of . . . impairments does not reveal the extent to
which they limit [a claimant’s] ability to work or undermine the ALJ’s
determination in that regard.”).
Finally, Womble takes issue with the ALJ’s failure to mention her hand
tremors. However, the ALJ is not required to refer to every piece of evidence in
her decision, so long as the record shows that the ALJ considered the claimant’s
condition as a whole. See Mitchell v. Comm’r of Soc. Sec. Admin., 771 F.3d 780,
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782 (11th Cir. 2014); Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005)
(“[T]here is no rigid requirement that the ALJ specifically refer to every piece of
evidence. . . .”). Further, the record did not contain any evidence showing that the
hand tremors caused any limitations in Womble’s ability to work. In fact, in a
March 2013 treatment note, Dr. Wiseman concluded that the hand tremor
presented no “major problem.” Thus, Womble cannot show that the ALJ
committed reversible error by failing to mention her hand tremors. Ellison v.
Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003) (“[T]he claimant bears the burden
of proving that [she] is disabled.”).
III. CONCLUSION
For all of the above reasons, we affirm the magistrate judge’s order
affirming the Commissioner’s denial of Womble’s application for a period of
disability and disability insurance benefits.
AFFIRMED.
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