Nereida Vesy v. Michael J. Astrue , 353 F. App'x 219 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 09-11240 NOVEMBER 17, 2009
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 08-00016-CV-FTM-SPC
NEREIDA VESY,
Plaintiff-Appellant,
versus
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(November 17, 2009)
Before TJOFLAT, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Nereida Vesy appeals the district court’s order affirming the Commissioner
of Social Security’s denial of her application for disability insurance benefits,
pursuant to 42 U.S.C. § 405(g). On appeal, Vesy argues that: (1) the
Administrative Law Judge’s (“ALJ”) assessment of her residual functional
capacity (“RFC”) is not supported by substantial evidence; (2) substantial evidence
does not support the ALJ’s decision not to credit her subjective testimony
concerning her symptoms; (3) the ALJ failed to adequately develop the
administrative record; and (4) the ALJ’s hypothetical questions to a vocational
expert (“VE”) failed to include all of her impairments. After careful review, we
affirm.
In a social security case, we review the Commissioner’s factual findings to
determine whether they are supported by substantial evidence. Ingram v. Comm’r
of Soc. Sec. Admin., 496 F.3d 1253, 1260 (11th Cir. 2007). Substantial evidence
is defined as “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). We do not “decide the facts anew, reweigh the evidence, or
substitute our judgment for that of the [Commissioner].” Id. “If the
Commissioner’s decision is supported by substantial evidence we must affirm,
even if the proof preponderates against it.” Miles v. Chater, 84 F.3d 1397, 1400
(11th Cir. 1996). We review the Commissioner’s legal conclusions de novo.
Ingram, 496 F.3d at 1260.
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I.
First, we disagree with Vesy’s argument that the ALJ’s RFC assessment is
not supported by substantial evidence. The Social Security regulations establish a
five-step sequential process for determining whether a claimant is disabled. 20
C.F.R. § 416.920. Under the first two steps, the ALJ must determine whether the
claimant is currently engaged in substantial gainful activity, and whether the
claimant has a severe impairment. Id. § 416.920(b) and (c). Under the third step,
the ALJ must decide whether the claimant’s impairments meet or medically equal a
listed impairment. Id. § 416.920(d). If the claimant has a severe impairment that
does not meet or equal a listed impairment, the ALJ must then determine whether
the claimant has the residual functional capacity to perform her past relevant work.
Id. § 416.920(e) and (f). “[R]esidual functional capacity is an assessment, based
upon all of the relevant evidence, of a claimant’s remaining ability to do work
despite his impairments.” Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir.
1997); 20 C.F.R. § 404.1545. If the claimant cannot perform her past relevant
work, the ALJ must then determine whether the claimant may perform other work
that exists in the national economy. 20 C.F.R. § 416.920(g).
Generally, the opinion of a treating physician “must be given substantial or
considerable weight unless ‘good cause’ is shown to the contrary.” Lewis, 125
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F.3d at 1440. “When electing to disregard the opinion of a treating physician, the
ALJ must clearly articulate [his] reasons.” Phillips v. Barnhart, 357 F.3d 1232,
1241 (11th Cir. 2004) (quotation omitted). We have found good cause for
disregarding a treating physician’s opinion 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 conclusory or inconsistent
with the doctor’s own medical records.” Id.In this case, the ALJ conducted a review of all of the medical evidence in the
record, and his RFC assessment is supported by the medical evidence. As an initial
matter, in determining Vesy’s exertional impairments, the ALJ relied primarily on
the opinions of Drs. Johnson and Seo. Dr. Johnson reported that Vesy was limited
by fatigue and arthralgia, but could sit or stand for up to 6 hours in an 8-hour
workday, and could lift and carry up to 15 pounds. Similarly, Dr. Seo found that
Vesy could sit or stand for 30 minutes without interruption, was able to walk for a
few blocks, and could lift and carry up to 20 pounds. Because Dr. Johnson was a
long-term treating rheumatologist, the ALJ properly gave significant weight to her
opinion. See Lewis, 125 F.3d at 1440. Moreover, Dr. Johnson’s and Dr. Seo’s
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assessments were consistent with the medical evidence in the record, which
suggested that Vesy retained the ability to perform a limited range of light work.1
We also find no support for Vesy’s argument that Dr. Pollack’s report --
which concluded that her examination of Vesy was “essentially unremarkable,”
and that Vesy did not have any exertional limitations -- failed to properly consider
her fibromyalgia and IBS symptoms, and, therefore, should not have been
considered by the ALJ. Indeed, Dr. Pollack did note that Vesy had a history of
IBS, Lyme Disease, and knee and back pain. She simply concluded that those
conditions did not cause any exertional impairments. And in any event, it does not
appear that the ALJ placed great reliance on Dr. Pollack’s assessment, as the ALJ
found that Vesy did, in fact, have exertional impairments that restricted her to a
limited range of light work.
As for Vesy’s claim that the ALJ should not have relied upon the functional
capacity evaluation of Dr. Ilkay, the ALJ’s written opinion noted that Dr. Ilkay’s
1
As the record shows, in 1996, before the alleged disability onset date, Dr. Ekstrom
placed Vesy off of work for approximately three months due to her Irritable Bowel Syndrome
(“IBS”) symptoms, but he later allowed her to return to light duty work, with no excessive
bending or lifting. Drs. Bernstein, Dadrat, and Vogtland did not identify any functional
impairments caused by Vesy’s IBS. The state agency physician who reviewed Vesy’s
application concluded that she retained the capacity to perform light work. In 2001, Dr.
Fernando reported that Vesy’s fibromyalgia was “controlled,” and that Vesy was able to
occasionally exercise by walking or by riding a bike. Dr. Rodgers did not list any specific
limitations on Vesy’s ability to work in his treatment notes or medical evaluation forms.
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opinion was “obviously limited to a urological standpoint only.” Thus, it does not
appear that the ALJ gave significant weight to Dr. Ilkay’s opinion.
Vesy also argues that the ALJ should have given more weight to the opinion
of Dr. Sell, a treating physician, who concluded that she: (1) could not sit or stand
for more than 1 hour in an 8-hour work day; (2) could occasionally or never lift or
carry items weighing less than ten pounds; (3) could not push or pull with either
arm; (4) could occasionally reach above shoulder level, but could never bend,
squat, kneel, or crawl. However, Dr. Sell’s assessment was inconsistent with the
opinions of Drs. Johnson and Seo. In addition, although Dr. Sell’s treatment notes
indicated that he treated Vesy for lower back pain, fibromyalgia, and IBS, they did
not suggest that Vesy was limited to the extent found by Dr. Sell in his functional
capacity evaluation. Therefore, the ALJ was not required to give significant
weight to Dr. Sell’s opinion. See Phillips, 357 F.3d at 1241.
Further, although Vesy argues that the ALJ’s RFC assessment should have
included non-exertional limitations, the medical evidence does not reveal any non-
exertional impairments that affected Vesy’s ability to work. Vesy testified that her
IBS caused diarrhea and vomiting, which required her to take frequent bathroom
breaks. But Drs. Bernstein, Vogtland, and Sell reported that Vesy’s IBS was
controlled when she was taking FiberCon. And while Vesy suffered from pain,
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fatigue, and stiffness caused by arthralgia and fibromyalgia, Dr. Johnson concluded
that those symptoms did not affect her ability to perform light duty work. As a
result, the ALJ did not have to include any non-exertional symptoms in his RFC
assessment. For all of these reasons, the ALJ’s RFC assessment is supported by
substantial evidence.
II.
We likewise find no merit in Vesy’s claim that the ALJ erred by declining to
credit her subjective testimony concerning her symptoms. In a case where a
claimant attempts to establish disability through his or her own testimony
concerning pain or other subjective systems, we apply a three-part “pain standard.”
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 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.” Id.If the ALJ decides not to credit a claimant’s subjective testimony, “he must
articulate explicit and adequate reasons for doing so.” Id. If the ALJ fails to
articulate reasons for discrediting the claimant’s testimony, then that testimony
must be accepted as true. Id. In evaluating a claimant’s credibility, the ALJ may
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consider, among other things, the claimant’s daily activities and the “type, dosage,
effectiveness, and side effects” of any medication that the claimant uses to relieve
her symptoms. 20 C.F.R. § 404.1529(c)(3)(i), (iv).
Here, the ALJ found that Vesy’s subjective testimony regarding the
frequency and intensity of her symptoms could not be fully credited because it was
inconsistent with Vesy’s daily activities and with the medical evidence. Thus, the
ALJ’s reasoning is consistent with the evidence in the record, and as a result, his
credibility determination is supported by substantial evidence. Further, because
Vesy’s subjective testimony was inconsistent with the record, the ALJ’s error in
noting that Vesy had not requested any bathroom breaks during the hearing when
she had in fact requested and received one break was harmless. See Diorio v.
Heckler, 721 F.2d 726, 728 (11th Cir. 1983) (holding that an ALJ’s factual error is
harmless if it does not affect the ALJ’s conclusion).
III.
Next, we reject Vesy’s argument that the ALJ failed to properly develop the
administrative record by ordering additional consultative examinations, re-
contacting Drs. Seo and Sell for clarification of their functional capacity
assessments, and making an inquiry into whether side effects from her medications
contributed to her disability. In a social security case, the ALJ has an affirmative
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duty to develop a full and fair record. Brown v. Shalala, 44 F.3d 931, 934 (11th
Cir. 1995). This obligation applies regardless of whether the claimant is
represented by counsel, but it rises to the level of a special duty when the claimant
is unrepresented. Id. at 934-35. Nevertheless, the ALJ’s obligation to develop the
record does not relieve the claimant of the burden of proving that she is disabled.
Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003). Consequently, it is the
claimant’s responsibility to introduce evidence in support of her application for
benefits. Id. In determining whether it is necessary to remand a case for
development of the record, we consider “whether the record reveals evidentiary
gaps which result in unfairness of clear prejudice.” Brown, 44 F.3d at 935(quotations omitted).
In Cowart v. Schweiker, the claimant, who was unrepresented at the hearing
but had not waived her right to counsel, testified that she was taking a number of
medications which caused her to be “kind of zonked most of the time.” 662 F.2d
731, 737 (11th Cir. 1981). Based on those facts, we held that the ALJ had a duty to
investigate the side effects of the claimant’s medications and to determine whether
those side effects had an impact on her ability to work. Id. Yet, we have also held
that the ALJ need not inquire into the side effects of a claimant’s medications
where the claimant was represented at the hearing, and did not assert that side
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effects from her medications contributed to her disability. Cherry v. Heckler, 760
F.2d 1186, 1191 n.7 (11th Cir. 1985).
Under the Social Security regulations, the ALJ may order additional
consultative examinations if the medical evidence submitted by the claimant does
not provide enough information about an impairment to determine whether the
claimant is disabled. 20 C.F.R. § 416.917. But the ALJ is not required to order
additional examinations if the evidence in the record is sufficient to allow for an
informed decision. Ingram, 496 F.3d at 1269. In general, the ALJ should re-
contact a medical source when the evidence received from that source is
inadequate to determine whether the claimant is disabled. 20 C.F.R. § 416.912(e).
Under Social Security Ruling 96-5p, the ALJ must make “every reasonable effort”
to re-contact a medical source when the medical evidence does not support the
source’s opinion, and the ALJ cannot ascertain the basis for that opinion from the
case record. S.S.R. 96-5p (Cum. Ed. 1996).
In this case, the ALJ developed a full and fair record. Although there was
some evidence that Vesy suffered from side effects caused by her medications, she
did not allege that those side effects contributed to her disability and notably, was
represented by counsel. As a result, the ALJ did not have a special duty to make a
further inquiry into the effects of Vesy’s medications. See Cherry, 760 F.2d at
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1191 n.7. Moreover, the ALJ was not required to re-contact Drs. Seo and Sell or to
order additional consultative examinations because the record already contained
sufficient evidence for the ALJ to made an informed decision regarding whether
Vesy was disabled. Ingram, 496 F.3d at 1269. Vesy therefore has not shown any
error with respect to the ALJ’s duty to develop the record.
IV.
Finally, we are unpersuaded by Vesy’s claim that the ALJ’s hypothetical
question to the VE failed to include her non-exertional impairments. As noted
above, under step five of the sequential evaluation process, the ALJ must
determine whether the claimant is able to perform other work that exists in the
national economy. 20 C.F.R. § 404.1520(g). If the ALJ finds that the claimant is
able to perform other work, he “must articulate specific jobs that the claimant is
able to perform, and this finding must be supported by substantial evidence, not
mere intuition or conjecture.” Wilson v. Barnhart, 284 F.3d 1219, 1227 (11th Cir.
2002). One way in which the ALJ may determine whether the claimant is able to
perform other jobs is by posing a hypothetical question to a VE. Id. “In order for
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. However, the ALJ’s hypothetical need not include a claimant’s asserted
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impairments that are not supported by the medical evidence, or that are controlled
or alleviated by medication. Ingram, 496 F.3d at 1270.
As the record shows, the ALJ’s first hypothetical to the VE included all of
the impairments which the ALJ found to be supported by the record. Further, the
ALJ did not have to include any symptoms related to IBS because the medical
evidence indicated that Vesy’s IBS was being controlled through the use of
FiberCon. Id. Thus, the ALJ properly relied upon the VE’s testimony as
substantial evidence to support his conclusion that Vesy could perform other work
that existed in the national economy. See Wilson, 284 F.3d at 1227.
AFFIRMED.
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