Raymond Lamar Burgin vs Commissioner of Social Security , 420 F. App'x 901 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-13394 ELEVENTH CIRCUIT
Non-Argument Calendar MARCH 30, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 6:09-cv-01233-DAB
RAYMOND LAMAR BURGIN,
lllllllllllllllllllllPlaintiff-Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
lllllllllllllllllllllDefendant-Appellee.
_______________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(March 30, 2011)
Before HULL, MARTIN and BLACK, Circuit Judges.
PER CURIAM:
Raymond Burgin appeals from the district court’s order affirming the
Commissioner’s denial of disability insurance benefits, 42 U.S.C. § 405(g), and
supplemental security income, 42 U.S.C. § 1383(c)(3). Burgin asserts several
issues on appeal, which we address in turn. After review, we affirm the
Commissioner’s denial of benefits.1
I.
Burgin first asserts the ALJ erred when he determined Burgin’s edema,
sleep apnea, and morbid obesity were not severe impairments because they did not
impose vocationally-restrictive limitations for a period of 12 consecutive months.
To obtain Social Security disability benefits, a claimant must show: (1) he is
not performing substantial gainful activity; (2) he has a severe impairment; (3) the
impairment or combination of impairments meets or equals an impairment listed in
the regulations; or (4) he cannot return to past work; and (5) he cannot perform
other work based on his age, education, and experience. Phillips v. Barnhart, 357
F.3d 1232, 1237 (11th Cir. 2004); 20 C.F.R. §§ 404.1520 and 416.920.
The finding of any severe impairment, based on either a single impairment
or a combination of impairments, is enough to satisfy step two because once the
ALJ proceeds beyond step two, he is required to consider the claimant’s entire
1
We conduct a limited review of the ALJ’s decision to determine whether it is supported
by substantial evidence and whether it is based on proper legal standards. Crawford v. Comm’r,
363 F.3d 1155, 1158 (11th Cir. 2004). Under the substantial evidence standard, “[e]ven if the
evidence preponderates against the Commissioner’s findings, we must affirm if the decision
reached is supported by substantial evidence.” Id. at 1158-59 (citation omitted).
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medical condition, including impairments the ALJ determined were not severe.
Jamison v. Bowen, 814 F.2d 585, 588 (11th Cir.1987); see also Phillips, 357 F.3d
at 1238. The ALJ must make specific and well-articulated findings as to the effect
of the combination of all of the claimant’s impairments. Bowen v. Heckler, 748
F.2d 629, 635 (11th Cir.1984). However, a clear statement that the ALJ
considered the combination of impairments constitutes an adequate expression of
such findings. See Jones v. Dep’t of Health & Human Servs., 941 F.2d 1529, 1533
(11th Cir. 1991).
Substantial evidence supports the ALJ’s finding that Burgin’s sleep apnea,
obesity, and edema were not severe because they did not impose vocationally-
restrictive limitations for a period of 12 continuous months.2 Specifically, the ALJ
discussed in detail Burgin’s medical records and testimony, which included all of
his diagnosed ailments as well as his claimed limitations stemming from those
ailments. Even assuming the ALJ erred when he concluded Burgin’s edema, sleep
apnea, and obesity were not severe impairments, that error was harmless because
the ALJ considered all of his impairments in combination at later steps in the
2
Additionally, Burgin cites Ryan v. Heckler, 762 F.2d 939 (11th Cir. 1985), for the
proposition that the ALJ did not comply with his obligation to state the legal rules applied or the
weight he accorded to the evidence and failed to consider the evidence Burgin submitted
establishing that his edema, sleep apnea, and obesity caused additional functional limitations.
This case is distinguishable from Ryan, however, because a limited and meaningful review is
possible based on the information contained in the ALJ’s report.
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evaluation process.3 See Diorio v. Heckler, 721 F.2d 726, 728 (11th Cir.1991)
(applying the harmless error doctrine to social security cases).
II.
Burgin next claims the AC inadequately explained its decision to deny
review because it gave no indication of the weight it gave to the newly submitted
evidence4 or the legal standards it applied. Further, Burgin argues the AC did not
consider or discuss the impact of this evidence on his claims.
The AC must consider new, material, and chronologically relevant evidence
and must review the case if the ALJ’s decision is contrary to the weight of the
record evidence. 20 C.F.R. § 404.970(b); Ingram v. Comm’r, 496 F.3d 1253, 1261
(11th Cir. 2007). When a claimant properly presents new evidence to the AC and
it denies review, we essentially consider the claimant’s evidence anew to
determine whether “that new evidence renders the denial of benefits erroneous.”
Id. at 1262. Thus, because a reviewing court must evaluate the claimant’s
evidence anew, the AC is not required to provide a thorough explanation when
denying review. Id.3
The ALJ proceeded further in the sequential evaluation process because he determined
that Burgin had a severe impairment due to his obstructive pulmonary disease.
4
Burgin submitted medical questionnaires completed by three of his health care providers,
pharmacy information sheets, in which he had circled the side effects he experienced, and pages
from the Physicians Desk Reference.
4
The AC considered and incorporated the additional evidence submitted by
Burgin into the record. Contrary to Burgin’s argument, the AC was not required
to explain its denial of review. See Ingram, 496 F.3d at 1261.
Further, the AC did not err in refusing to remand to the ALJ based on the
new evidence Burgin submitted because the probative value of that evidence was
slight and did not render the denial of benefits erroneous. Id. at 1262.
Specifically, the AC was free to give little weight to the conclusory assertions
contained in the questionnaires because they merely consisted of items checked on
a survey, with no supporting explanations. See Lewis v. Callahan, 125 F.3d 1436,
1440 (11th Cir. 1997) (determining that the opinions, diagnosis, and medical
evidence of a treating physician must be given substantial or considerable weight
unless they are conclusory).
III.
Burgin further contends the ALJ has a duty to consider the side effects of
his medications and to elicit testimony and make findings regarding the effect of
those medications upon his ability to work.
Where a represented claimant raises a question as to the side effects of
medications, but does not otherwise allege the side effects contribute to the
alleged disability, we have determined the ALJ does not err in failing “to inquire
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further into possible side effects.” Cherry v. Heckler, 760 F.2d 1186, 1191 n.7
(11th Cir. 1985). Further, if there is no evidence before the ALJ that a claimant is
taking medication that cause side effects, the ALJ is not required to elicit
testimony or make findings regarding the medications and their side effects.
Passopulos v. Sullivan, 976 F.2d 642, 648 (11th Cir. 1992); see also Swindle v.
Sullivan, 914 F.2d 222, 226 (11th Cir. 1990) (holding that where the claimant did
not complain about the side effects from her prescription medications, other than
an isolated mention that they might be responsible for causing her headaches, and
where the record did not disclose any concerns from her doctors about side effects,
substantial evidence supported the determination that the side effects did not
present a significant problem).
The record establishes the ALJ did not err by failing to consider the alleged
side effects of Burgin’s medications. Because Burgin was represented by counsel
at his hearing, the ALJ was not required to inquire in detail about his alleged side
effects. See Cherry, 760 F.2d at 1191 n.7. Moreover, because there was no
evidence Burgin was experiencing side effects from his medication, the ALJ was
not required to make findings regarding his side effects when assessing his
subjective complaints. See Passopulos, 976 F.2d at 648. Accordingly, we affirm
the district court’s order affirming the Commissioner’s denial of disability
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insurance benefits and supplemental security income.
AFFIRMED.
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