USCA11 Case: 21-13028 Date Filed: 04/25/2022 Page: 1 of 8
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13028
Non-Argument Calendar
____________________
KATHY ELAINE PONS,
Plaintiff-Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 5:20-cv-00016-MAF
____________________
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2 Opinion of the Court 21-13028
Before JILL PRYOR, BRANCH, and BRASHER, Circuit Judges.
PER CURIAM:
Kathy Pons appeals the district court’s order affirming the
Commissioner of Social Security’s denial of disability insurance
benefits. She argues that the administrative law judge erred in fail-
ing to weigh the medical opinion of Dr. Linda Kay Fox or provide
good cause for rejecting that opinion. The Commissioner concedes
that the administrative law judge did not discuss Dr. Fox’s opinion
but argues that the opinion was practically irrelevant because it did
not address the time period when Pons was eligible for disability
insurance benefits. After review, we hold that even if the adminis-
trative law judge erred by failing to consider Dr. Fox’s opinion, any
such error was harmless. Accordingly, we affirm.
I. BACKGROUND
Pons applied for disability insurance benefits in 2013. She al-
leged disability due to headaches and neck, shoulder, and lower
back pain, and reported that repetitive motion exacerbated her
pain. She alleged a disability onset date of June 24, 2011, and her
last insured date was December 31, 2011. She therefore had the
burden of showing that she was disabled during the roughly six-
month period between her alleged onset date and last insured date.
After a hearing, an administrative law judge issued a decision deny-
ing benefits and concluding that, during the six-month period at
issue, Pons was capable of performing work at the light exertional
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21-13028 Opinion of the Court 3
level and that jobs existed in significant numbers in the national
economy that she could perform. Pons filed an administrative ap-
peal with the Social Security Appeals Council, which denied re-
view. She then filed suit in federal district court. In September 2018,
the district court reversed and remanded for a redetermination of
Pons’s residual functional capacity.
On remand, a second hearing was held at which Pons and a
vocational expert testified. This time, Pons submitted certain treat-
ment records by Dr. Linda Kay Fox. Dr. Fox began treating Pons
in February 2015. Dr. Fox’s records included a “Fibromyalgia Med-
ical Opinion” questionnaire from June 2019—the month before the
hearing—which appears to have been prepared upon review of rec-
ords received from Pons’s previous treating physician, Dr. Hulon
Crayton. Pons submitted two versions of the form, both dated June
25, 2019. The second version contained additional notes on Pons’s
limitations related to “reaching, handling or fingering.” The sec-
ond, more detailed form stated Dr. Fox’s opinion that Pons re-
quired continuous breaks, needed to elevate her legs half of the
day, would be off task more than a quarter of the day, would miss
more than four days of work a month, and was incapable of even
low stress work, among other limitations. The form prompted Dr.
Fox to state her “Frequency and length of contact” with Pons, to
which Dr. Fox replied “2013 2011 per Dr. Crayton.” Dr. Fox’s office
was unable to provide additional records from before 2018, assert-
ing that their paper records were destroyed during Hurricane Mi-
chael.
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4 Opinion of the Court 21-13028
In September 2019, the administrative law judge issued a
second unfavorable decision, concluding that Pons was not disa-
bled during the six-month period between her alleged onset date
and her last insured date. Importantly, the decision did not weigh
the opinion statements of Dr. Fox regarding Pons’s work-related
limitations, nor did it state good cause for rejecting them. After the
Appeals Council denied review, Pons filed suit in district court,
challenging the decision on several grounds including its failure to
address Dr. Fox’s medical opinion. The district court affirmed the
decision in all respects. Relevant here, the district court concluded
that the administrative law judge’s failure to consider and credit the
opinion of Dr. Fox was, at most, harmless error. Pons filed a mo-
tion to alter or amend the judgment, which the district court de-
nied. Pons then appealed.
II. STANDARD OF REVIEW
When the Appeals Council of the Social Security Admin-
istration declines to review an administrative law judge’s decision
denying disability benefits, as occurred here, we review that admin-
istrative law judge’s decision as the final decision of the Administra-
tion’s Commissioner. Simon v. Comm’r, Soc. Sec. Admin.,
7 F.4th
1094, 1103 (11th Cir. 2021). We review the administrative law
judge’s legal conclusions de novo and his factual findings for sub-
stantial evidence.
Id. “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.
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21-13028 Opinion of the Court 5
Sec.,
363 F.3d 1155, 1158 (11th Cir.2004) (quoting Lewis v. Calla-
han,
125 F.3d 1436, 1439 (11th Cir.1997)).
III. DISCUSSION
The district court held that, even if the administrative law
judge erred by failing to expressly consider Dr. Fox’s opinion, that
failure was harmless. [Doc. 45 at 41–43] Pons argues that the ad-
ministrative law judge erred in failing to either weigh Dr. Fox’s
opinion or state good cause for rejecting it. She asserts that, though
Dr. Fox did not begin treating her until 2015, her medical opinion
was relevant because Dr. Fox stated that she relied on treatment
records from her previous treating physician which dated back to
the relevant six-month period in 2011. And Pons contends that the
error was not harmless because Dr. Fox identified limitations that,
according to the vocational expert, would have prevented Pons
from finding work in the national economy. The Commissioner
responds that, even if failing to discuss Dr. Fox’s opinion was error,
the error was harmless because Dr. Fox’s opinion was formed years
after the six-month period at issue and was inconsistent with other
evidence in the record. For the reasons given below, we affirm the
district court.
The administrative law judge must state with particularity
the weight given to different medical opinions and the supporting
reasons. Winschel v. Comm’r of Soc. Sec.,
631 F.3d 1176, 1179
(11th Cir. 2011). We have held that an administrative law judge
must give a treating physician’s conclusions “substantial or
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6 Opinion of the Court 21-13028
considerable weight” unless there is “good cause” to discount
them. Simon, 7 F.4th at 1104 (quoting Lewis,
125 F.3d at 1440).
“Good cause” exists where “(1) [the] treating physician’s opinion
was not bolstered by the evidence; (2) [the] evidence supported a
contrary finding; or (3) [the] treating physician’s opinion was con-
clusory or inconsistent with the doctor’s own medical rec-
ords.” Phillips v. Barnhart,
357 F.3d 1232, 1241 (11th Cir. 2004). The
failure to do so is reversible error. Lewis,
125 F.3d at 1440.
The Social Security regulations define a “treating source” as
a medical source, including a physician, who has provided the
claimant with medical treatment and has, or previously had, an on-
going treatment relationship with the claimant.
20 C.F.R.
§§ 404.1502, 404.1527. The regulations do not clearly distinguish
between physicians who treated the claimant during the relevant
period and those who treated her after that period ended. See
20
C.F.R. § 404.1527.
We have applied the harmless error rule to social security
appeals. See Diorio v. Heckler,
721 F.2d 726, 728 (11th Cir. 1983).
If an error is harmless, we will not remand for further findings
where doing so would be a “wasteful corrective exercise.” See
Ware v. Schweiker,
651 F.2d 408, 412 (5th Cir. Unit A July 1981).
As an initial matter, we note that the critical date for estab-
lishing entitlement to benefits is the last insured date. See Moore v.
Barnhart,
405 F.3d 1208, 1211 (11th Cir. 2005) (“For [disability in-
surance benefit] claims, a claimant is eligible for benefits where she
demonstrates disability on or before the last date for which she
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21-13028 Opinion of the Court 7
were insured.”) (citing
42 U.S.C. § 423(a)(1)(a));
20 C.F.R. § 404.131.
To be entitled to benefits, a claimant must make a showing of dis-
ability “on or before that date.”
Id. Pons was last insured on De-
cember 31, 2011. She is therefore entitled to benefits only if she can
demonstrate that she was disabled during the six-month period be-
tween June 24, 2011 (the alleged onset date) and December 31, 2011
(the last insured date).
The Commissioner argues that Dr. Fox is not a treating phy-
sician at all because she did not treat Pons during the six-month
period at issue. Dr. Fox did not begin treating Pons until 2015, and
she did not fill out the “Fibromyalgia Medical Opinion” question-
naire until 2019. She based her opinion in part on reviewing records
created by another physician, Dr. Crayton, that were already part
of the record. Insofar as her opinion was based on what was re-
flected in Dr. Crayton’s records from an earlier time, Dr. Fox’s
opinion of Pons’s limitations between June and December 2011
was more like that of a reviewing or consulting physician.
Nevertheless, even assuming arguendo that Dr. Fox’s opin-
ion is subject to the treating physician rule and that the administra-
tive law judge erred in failing to address it, any such error was
harmless. The error was harmless because the administrative law
judge’s good cause for rejecting Dr. Fox’s opinion is plainly evident
on the face of the record, rendering remand futile.
First, Dr. Fox’s opinion is based on a review of records and
her inactions with Pons after Pons’s last insured date. To the extent
her opinion “relates back” to the relevant period in 2011, that is
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8 Opinion of the Court 21-13028
because the opinion is based on a review of Dr. Crayton’s records,
which were part of the administrative record that the administra-
tive law judge addressed. Dr. Crayton’s records supported the ad-
ministrative law judge’s finding that Pons’s alleged pain stemming
from fibromyalgia was not as severe as she alleged, and Dr. Fox’s
opinion added no new information about Pons’s limitations during
the relevant six-month period in 2011.
Second, to the extent Dr. Fox’s opinion addressed the rele-
vant time period, Dr. Fox’s opinion was inconsistent with her own
medical records. Dr. Fox’s “Fibromyalgia Medical Opinion” ques-
tionnaire said that Pons suffered from, among other things, chronic
fatigue and migraines. But, Dr. Fox’s treatment notes indicate that,
before June 2019, Pons had consistently denied experiencing fa-
tigue and headaches. Dr. Fox said that Pons could not sustain even
“an easy job” for eight hours a day and five days a week, and that
she was incapable of tolerating even “low stress work.” But in her
earlier records, Dr. Fox had repeatedly reported that Pons’s condi-
tion was “stable with good response clinically to current medical
regimen.”
Accordingly, even assuming arguendo that the administra-
tive law judge erred in failing to expressly address Dr. Fox’s opin-
ion, we conclude that any error was harmless. Dr. Fox’s opinion
was formed long after the relevant six-month period in 2011 had
ended. And it was inconsistent with Pons’s own statements and her
own medical records. Therefore, we affirm the denial of benefits.
AFFIRMED.
