Fries v. Commissioner of Social Security Administration , 196 F. App'x 827 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPT 14, 2006
No. 06-11627 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-61314-CV-KAM
BARBARA FRIES,
Plaintiff-Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION,
Jo Anne Barnhart, Commissioner,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(September 14, 2006)
Before BLACK, BARKETT and FAY, Circuit Judges.
PER CURIAM:
Barbara Fries appeals pro se from the district court’s judgment affirming the
denial of her application for disability benefits pursuant to 42 U.S.C. § 405(g). On
appeal, Fries argues that the Administrative Law Judge (“ALJ”): (1) abused his
power and deprived her of a fair hearing by sending her a prehearing
correspondence stating that he would dismiss her case unless she provided a letter
stating that the record was complete; (2) failed to take reasonable measures to
fairly and fully develop the medical evidence of record; (3) failed to obtain
supplemental testimony from a vocational expert (“VE”), in violation of the
Appeals Council’s remand order; and (4) did not give proper weight to the
opinions of her treating physicians. For the reasons set forth more fully below, we
affirm the ALJ’s decision.
Fries applied for a period of disability and disability insurance benefits in
1989. Before she was injured at work, she worked as a receptionist. The Appeals
Council remanded Fries’s case twice for rehearing so that the ALJ could recontact
her physicians and consult an orthopedic medical expert. At Fries’s administrative
hearings, she testified that she was able to go shopping, watch television, visit
friends, do household chores such as cooking and cleaning, drive, and travel from
New York to Florida twice a year. She further testified that she was unable to sit
or stand for more than 10 minutes, could walk one block, and could lift less than
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one-half gallon of milk. Also, a VE had testified at an earlier 1997 hearing that
Fries could perform her relevant past work as a receptionist because the work was
sedentary.
The medical evidence in the record showed that Fries suffered from lumbar
degenerative disc disease, osteoarthritic changes at L4-5, and osteoarthritis of the
right knee. Salvatore F. Pisciotto, M.D., first opined that she was totally disabled,
but later, he determined that she was not disabled from all work. Michael V.
Marrone, M.D., found that she could perform work that did not involve excessive
standing, bending, or lifting. Leonard Langman, M.D., Helen Heiman, M.D., and
Barbary Colon, M.D., concluded that she was disabled. Morris Funk, M.D.,
concluded that she walked normally and had no limitation on the movement of her
joints, and K. Seo, M.D. found that she had difficulty standing or walking for
prolonged periods.
Our review of the Commissioner’s decision is limited to whether substantial
evidence supports the decision and whether correct legal standards were applied.
Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002). “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. Commissioner of Social
Security, 363 F.3d 1155, 1158-1159 (11th Cir. 2004). “Even if the evidence
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preponderates against the Commissioner’s findings, we must affirm if the decision
reached is supported by substantial evidence.” Id.To establish disability, a claimant must first show that she became disabled
during the time for which she was insured by Social Security. 20 C.F.R.
§ 404.131(a). Here, because Fries was last insured on March 31, 1995, she must
show that she was disabled on or before that date.
“The Social Security regulations provide a five-step sequential evaluation
process for determining if a claimant has proven that she is disabled.” Jones v.
Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999). The examiner must determine:
(1) whether the claimant is not engaged in substantial gainful activity; if so,
(2) whether the claimant has a severe impairment; if yes, (3) whether the claimant
has any impairment which meets or equals those contained in a list of impairments;
if not, (4) whether the claimant is unable to perform her past relevant work; if so
(5) whether the claimant can perform other work. Id. At step five, the burden is on
the Commissioner to show that there is other work the claimant can perform. Id.I. Abuse of Power Claim
Fries argues that the ALJ abused his power by threatening to dismiss her
case if she did not send him a letter stating that the record was complete.
The Social Security Act requires that a claimant's hearing be both full and
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fair. Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996). “An [ALJ] shall 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.” 20 C.F.R. § 404.940. “The
impartiality of the ALJ is thus integral to the integrity of the system.” Miles, 84
F.3d at 1401. If a claimant fears that a particular ALJ will not provide a fair
hearing, he must notify the ALJ at the earliest opportunity. 20 C.F.R. § 404.940.
The ALJ provided Fries with a full and fair hearing because, on remand,
Fries was allowed to submit additional evidence and testimony in support of her
claim. Further, Fries never requested that the ALJ recuse himself before the
hearing. Finally, as discussed below, the ALJ based his opinion on the evidence in
the record, and there is no evidence that his prehearing correspondence affected his
decision. Accordingly, we conclude that the ALJ accorded Fries a full and fair
hearing.
II. Development of the Medical Record
Fries argues that the ALJ erred by not following the Appeals Council’s order
directing him to contact (1) Jeffrey Minkoff, M.D., and Marc Hammerman, M.D.,
who treated her knee condition; (2) Drs. Marrone and Seo; and (3) an orthopedic
medical specialist.
“A hearing before an ALJ is not an adversarial proceeding” and “the ALJ
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has a basic obligation to develop a full and fair record.” Graham v. Apfel, 129
F.3d 1420, 1422 (11th Cir. 1997). Medical sources should be recontacted when the
evidence received from that source is inadequate to determine whether the claimant
is disabled. 20 C.F.R. §§ 404.1512(e); 416.912(e). If the medical sources do not
provide sufficient medical evidence, the ALJ may order a physical or mental
consultive examination at the government’s expense. 20 C.F.R. § 404.1517.
However, the ALJ is not required to order an examination if such an examination is
not necessary in order to enable the ALJ to make a disability determination. See
Wilson v. Apfel, 179 F.3d 1276, 1278 (11th Cir. 1999) (holding that additional
medical testimony was unnecessary where the record was sufficient for a decision).
In evaluating whether it is necessary to remand, we are guided by “whether
the record reveals evidentiary gaps which result in unfairness or clear prejudice.”
Brown v. Shalala, 44 F.3d 931, 935 (11th Cir. 1995) (quotations and citations
omitted). “[T]here must be a showing of prejudice before it is found that the
claimant’s right to due process has been violated to such a degree that the case
must be remanded to the [Commissioner] for further development of the record.”
Graham, 129 F.3d at 1423.
The ALJ’s failure to recontact Drs. Minkoff and Hammerman did not
prevent the development of a full and fair record because there is medical evidence
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in the record regarding Fries’s knee condition subsequent to her treatment by Drs.
Minkoff and Hammerman. Dr. Seo noted that Fries walked normally into the
examining room and had no difficulty standing up from the sitting position or
getting on and off the examining table. Dr. Seo found that Fries suffered
from chronic inflammation of the right knee, and she had difficulty standing and
walking for prolonged periods because of the pain in her right knee joint. In
addition, Dr. Funk found that Fries walked normally, and she had no obvious joint
deformities or limitation on movements of her joints. Finally, the ALJ
acknowledged Fries’s knee condition when he found that she suffered from
osteoarthritis of the right knee.
The ALJ’s failure to recontact Drs. Marrone and Seo did not prevent the
development of a full and fair record because their opinions were not vague, as
they noted that Fries was capable of performing work that did not involve
excessive standing, bending, or heavy lifting, but she would have difficulty
standing or walking for prolonged periods. Further, the ALJ did not err in relying
on their opinions because Fries’s testimony was consistent with their findings, as
she testified that she went shopping, watched television, walked a block or two,
spent time with friends, played cards, went to movies, listened to music, and did
household chores such as cooking and cleaning.
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The ALJ’s failure to consult an orthopedic medical expert did not prevent
the development of a full and fair record because Fries presented the ALJ with
sufficient and detailed medical records, including records from Drs. Seo, Funk,
Marrone, Langman, Heiman, Lee, and Colon. Accordingly, the medical evidence
in the record was sufficient for the ALJ to determine whether Fries was disabled.
III. Supplemental VE Testimony
Fries argues that the ALJ improperly became his own VE when he did not
obtain supplemental evidence from a VE at her last hearing. In addition, the VE’s
testimony at her 1997 hearing was incomplete because (1) it did not refer to Fries’s
past work as a clerk/typist; (2) it did not indicate whether the job of receptionist as
Fries actually performed it was sedentary; and (3) the Dictionary of Occupational
Titles (“DOT”) section upon which the ALJ relied only related to the position of
receptionist.
The claimant bears the burden of showing that she cannot return to her past
relevant work. Lucas v. Sullivan, 918 F.2d 1567, 1571 (11th Cir. 1990). The
claimant also has the burden to provide evidence about her work experience. 20
C.F.R. § 404.1512(c)(3). To support a conclusion that the claimant is able to
return to her past relevant work, the ALJ must consider all the duties of that work
and evaluate the claimant’s ability to perform them in spite of her impairments.
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Lucas, 918 F.2d at 1574. Generally, if the IJ concludes that the claimant can
perform her past relevant work, VE testimony is not necessary to determine
whether a claimant can perform her past relevant work. Id. at 1573 n.2. A
claimant is not disabled if she is able to perform her past work either as she
actually performed it or as it is generally performed in the national economy. 20
C.F.R. § 404.1560(b).
Sedentary work
involves lifting no more than 10 pounds at a time and
occasionally lifting or carrying articles like docket files,
ledgers, and small tools. Although a sedentary job is
defined as one which involves sitting, a certain amount of
walking and standing is often necessary in carrying out
job duties. Jobs are sedentary if walking and standing are
required occasionally and other sedentary criteria are
met.”
20 C.F.R. § 404.1567(a).
In determining whether the claimant can work, the Commissioner can take
administrative notice of job information from reliable sources such as the DOT. 20
C.F.R. §§ 404.1566(d)(1), 416.966(d)(1). The DOT uses the same classifications
to describe the exertional requirements of work, such as “light” or “sedentary,” as
does the Commissioner when determining the claimant’s RFC. Gibson v. Heckler,
762 F.2d 1516, 1519 n.2 (11th Cir. 1985). According to DOT § 237.367-038, a
“receptionist (clerical)” or “reception clerk”
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[r]eceives callers at establishment, determines nature of business, and
directs callers to destination: Obtains caller's name and arranges for
appointment with person called upon. Directs caller to destination
and records name, time of call, nature of business, and person called
upon. May operate PBX telephone console to receive incoming
messages. May type memos, correspondence, reports, and other
documents...May perform variety of clerical duties
[ADMINISTRATIVE CLERK (clerical) 219.362-010] and other
duties pertinent to type of establishment. May collect and distribute
mail and messages.
The DOT identifies the position of receptionist as sedentary. Id.
The ALJ did not err in concluding that Fries’s past relevant work was as a
receptionist, and her description of her work experience met the DOT definition of
“receptionist (clerical)” because Fries testified that she worked as a receptionist
before she was injured. Further, the ALJ did not act as his own VE because he
properly considered the VE’s opinion from the 1997 hearing that Fries’s past work
was semi-skilled and sedentary, and she could perform sedentary work as a
receptionist. The ALJ also referred to the DOT and properly found that the VE’s
description of Fries’s past work as semi-skilled and sedentary was consistent with
the DOT’s description of how receptionist jobs are generally performed in the
national economy. The fact that the VE did not testify whether Fries could
perform the job of receptionist as she actually performed it is not determinative
because a claimant is not disabled if she is able to perform her past work either as
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she actually performed it or as it is generally performed in the national economy.
See 20 C.F.R. § 404.1560. Finally, the ALJ properly concluded that he did not
need to consider whether Fries could perform the position of clerk/typist because
substantial evidence supports his determination that she could have worked as a
receptionist before her insured status expired.
IV. Weight Given to Medical Evidence
Fries argues that the ALJ did not properly weigh the medical evidence
because (1) the ALJ discounted Dr. Pisciotto’s original opinion that she was totally
disabled; (2) did not give enough weight to the opinions of Drs. Langman and Lee,
who found that she was disabled; and (3) gave too much weight to the opinions of
Drs. Marrone and Seo, as they only examined her once, and their opinions were
vague.
In determining whether a claimant is disabled for purposes of the Social
Security Act, the ALJ is required to make several findings under a five-step
sequential evaluation process, including an assessment of the claimant’s “residual
functional capacity” (“RFC”) to determine whether the claimant can do her past
relevant work or can make an adjustment to other work. 20 C.F.R. § 404.1520(e).
The RFC assessment is based on all the relevant medical and other evidence in the
case record. Id. The ALJ must state with particularity the weight given different
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medical opinions and the reasons for the weight given, and failure to do so is
reversible error. See Sharfarz v. Bowen, 825 F.2d 278, 279 (11th Cir. 1987).
The ALJ must make credibility determinations regarding a claimant’s claims
of pain. Wiggins v. Schweiker, 679 F.2d 1387, 1390 (11th Cir. 1982). We apply a
three-part “pain standard” test when a claimant attempts to prove disability through
her own testimony of subjective symptoms such as pain. Holt v. Sullivan, 921
F.2d 1221, 1223 (11th Cir. 1991). “The pain standard requires (1) evidence of an
underlying medical condition and either (2) objective medical evidence that
confirms the severity of the alleged pain [or other symptom] arising from that
condition or (3) that the objectively determined medical condition is of such a
severity that it can be reasonably expected to give rise to the alleged pain [or other
symptom].” Id. A claimant’s subjective testimony of pain or other symptoms,
when supported by objective medical evidence satisfying the requirements of the
“pain standard” test, is sufficient to support a finding of disability. Id. If an ALJ
decides to discredit such testimony, he must give “explicit and adequate reasons
for doing so,” and failure to provide such reasons requires that the testimony be
accepted as true. Id.Testimony or an opinion of a treating physician must be given substantial or
considerable weight unless “good cause” is shown to the contrary. Lewis v.
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Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997). We have found “good cause” to
exist where the (1) opinion was not bolstered by the evidence, (2) evidence
supported a contrary finding, or (3) opinion was conclusory or inconsistent with
the doctor’s own medical records. Id. (internal citations omitted). The 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. Id.Applying the pain standard, the ALJ properly considered Fries’s assessment
of her pain level and found that it was not credible to the degree alleged because
the objective evidence, as discussed above, did not confirm the severity of Fries’s
alleged limitations. See Holt, 921 F.2d at 1223.
The ALJ had good cause for giving minimal weight to Dr. Pisciotto’s
original opinion that Fries was totally disabled because Piscotto’s original opinion
was inconsistent with other evidence in the record, including the opinions of Drs.
Seo, Funk, and Marrone, and Fries’s own description of her daily activities.
Finally, the ALJ had good cause to rely on the opinions of Drs. Seo and Marrone
even though they only examined Fries once because, as discussed above, Dr.
Funk’s findings, Fries’s testimony about her daily activities, and the lack of
extensive medical treatment, were consistent with their findings. Accordingly, the
ALJ’s findings are supported by substantial evidence, and we discern no reversible
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error.
AFFIRMED.
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