Garrett Petteway v. Commission of Social Security , 353 F. App'x 287 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOVEMBER 18, 2009
No. 09-12364 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-00845-CV-J-TEM
GARRETT PETTEWAY,
Plaintiff-Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(November 18, 2009)
Before TJOFLAT, BLACK and WILSON, Circuit Judges.
PER CURIAM:
Garrett Petteway appeals the district court’s order affirming the
Commissioner of Social Security’s denial of his application for disability insurance
benefits, pursuant to 42 U.S.C. § 405(g). Petteway asserts the Administrative Law
Judge (ALJ) erred by (1) determining Petteway’s subjective complaints of pain
were not entirely credible, (2) discounting the medical assessments of Petteway’s
treating physician, Dr. Christopher Leber, in arriving at his residual functional
capacity (RFC), and (3) posing improper hypothetical questions to the vocational
expert (VE). We address each issue in turn, and affirm.1
I.
Petteway asserts the ALJ erred by rejecting his complaints of pain because
he did not articulate an evidentiary basis for doing so and the medical evidence
corroborated his testimony. “[A] claimant’s subjective complaints of pain cannot
in and of themselves serve as conclusive evidence of disability. The record must
document by medically acceptable clinical or laboratory diagnostic techniques the
existence of a medical impairment which could reasonably be expected to produce
the disabling pain.” Chester v. Bowen, 792 F.2d 129, 132 (11th Cir. 1986). A
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When “the ALJ denies benefits and the [Appeals Council] denies review, we review
the ALJ’s decision as the Commissioner’s final decision.” Doughty v. Apfel, 245 F.3d 1274,
1278 (11th Cir. 2001). We review the Commissioner’s factual findings with deference, and the
“factual findings are conclusive if they are supported by substantial evidence, consisting of such
relevant evidence as a reasonable person would accept as adequate to support a conclusion.” Id.(quotation omitted). However, we review the Commissioner’s legal conclusions de novo.
Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005).
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three-part “pain standard” applies when a claimant attempts to establish disability
through his own testimony of pain or other subjective symptoms. Wilson v.
Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002). The pain standard requires:
(1) evidence of an underlying medical condition, and either (2) objective medical
evidence confirming the severity of the alleged pain arising from that condition, or
(3) the objectively determined medical condition is of such a severity it can be
reasonably expected to give rise to the alleged pain. Id.When a claimant testifies to subjective complaints of pain, the ALJ must
clearly articulate adequate reasons for discrediting the claimant’s allegations of
disabling symptoms. Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). In
articulating his reasons, the ALJ need not specifically refer to every piece of
evidence, so long as the decision “is not a broad rejection which is not enough to
enable the district court or this Court to conclude that the ALJ considered [the]
medical condition as a whole.” Id. at 1210-11 (quotation omitted). A clearly
articulated credibility determination supported by substantial evidence will not be
disturbed. Foote v. Chater, 67 F.3d 1553, 1562 (11th Cir. 1995).
The ALJ found Petteway’s medically determinable impairments could
reasonably be expected to produce the symptoms alleged, but the objective medical
evidence did not support the severity of the alleged limitations. In making his
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credibility determination, the ALJ explicitly considered Petteway’s testimony
about his daily activities, his medication, and his course of treatment. Examination
of the record shows that, despite Petteway’s numerous visits for back pain,
Petteway regularly stopped taking his pain medication for months at a time.
Additionally, although Petteway testified the epidural injections were not helpful,
he took several injections during the relevant period, and the medical evidence
showed improvement after the injections. Further, contrary to Petteway’s
allegations of extreme pain, Dr. Fernandez, the medical expert, testified the
medical evidence and the treating physician’s assessment of Petteway’s RFC did
not support a pain level of eight. Specifically, Dr. Leber and Dr. Lipnick, both
treating physicians during the insured period, indicated Petteway could perform
light work and recommended Petteway begin a walking regimen. Similarly, the
medical records show the two reviewing physicians found Petteway reported a
higher level of pain than expected or supported by the medical evidence. Given
this medical evidence, the ALJ’s determination Petteway did not credibly testify
regarding the intensity, persistence, and limiting effects of his symptoms was
supported by substantial evidence. Because the ALJ offered clear and cogent
reasons for his credibility determination, he did not commit reversible error in
discounting Petteway’s subjective complaints of pain. See Dyer, 395 F.3d at 1210.
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II.
Petteway contends the ALJ erred by discounting the medical opinion of his
treating physician, Dr. Leber,2 because good cause did not exist to reject the
opinion and the ALJ failed to provided adequate reasons for rejecting the opinion.
The ALJ may reject any medical opinion if the evidence supports a contrary
finding. Sryock v. Heckler, 764 F.2d 834, 835 (11th Cir. 1985). Absent the
existence of “good cause” to the contrary, however, the ALJ must give the treating
physician’s testimony substantial weight. Phillips v. Barnhart, 357 F.3d 1232,
1240 (11th Cir. 2004). “‘[G]ood cause’ exists when the: (1) treating physician’s
opinion was not bolstered by the evidence; (2) evidence supported a contrary
finding; or (3) treating physician’s opinion was conclusory or inconsistent with the
doctor’s own medical records.” Id. at 1240-41.
If the ALJ disregards the opinion of a treating physician, the ALJ must
clearly articulate his reasons. Id. at 1241. We have found no reversible error
“[w]here our limited review precludes re-weighing the evidence anew, and [where]
the ALJ articulated specific reasons for failing to give [the treating physician’s]
2
Although Petteway references Dr. Robert Greenberg’s RFC evaluation in support of
Dr. Leber’s assessment, Petteway never contests the ALJ’s finding Dr. Greenberg’s opinion was
due little weight. Accordingly, Petteway has waived any claim regarding the ALJ’s treatment of
Dr. Greenberg’s opinion. See Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n.6
(11th Cir. 1989) (holding issues not argued on appeal are deemed waived, and a passing
reference to an issue in a brief is insufficient to properly raise that issue).
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opinion controlling weight” and these findings are supported by substantial
evidence. Moore v. Barnhart, 405 F.3d 1208, 1212 (11th Cir. 2005). When the
ALJ does not give the treating physician’s opinion controlling weight, the ALJ
applies other factors such as the length of treatment, the frequency of examination,
the nature and extent of the relationship, the supportability of the opinion, its
consistency with other evidence, and the specialization of the physician. See
20 C.F.R. § 416.927(d)(2)-(6).
Because “good cause” existed to reject the opinion of Petteway’s treating
physician, and the ALJ provided specific reasons for assigning less weight to the
opinion, substantial evidence supported the ALJ’s rejection of the opinion. See
Phillips, 357 F.3d at 1240-41. The ALJ rejected Dr. Leber’s conclusion Petteway
would be absent from work four days a month. First, good cause existed to reject
the opinion because Dr. Leber’s conclusion was inconsistent with Petteway’s
medical records, which showed infrequent medical visits at intervals of two or
more months. Additionally, Dr. Leber adopted the findings of the April 2003
functional capacity evaluation, which concluded Petteway could perform light-duty
work. In fact, Dr. Leber told Petteway to look for a different type of employment
consistent with the limitations of light work and refused to sign a form indicating
Petteway was unable to work. Because the ALJ’s conclusion Dr. Leber’s opinion
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was contrary to the medical evidence is supported by substantial evidence, the ALJ
did not commit reversible error by rejecting his opinion. See Phillips, 357 F.3d at
1240-41.
III.
Petteway contends the hypothetical posed to the VE was improper because it
did not account for his subjective complaints of pain and did not include the proper
restrictions. When a claimant cannot perform a full range of work at a given level
of exertion or has non-exertional impairments that significantly limit basic work
skills, the ALJ can determine whether a claimant can perform other jobs through
the testimony of a VE. Phillips, 357 F.3d at 1240. “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.” Ingram
v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1270 (11th Cir. 2007) (quotation
omitted). The ALJ is not required to include findings in the hypothetical that he
properly finds are unsupported. See Crawford v. Comm’r of Soc. Sec., 363 F.3d
1155, 1161 (11th Cir. 2004).
Because the ALJ properly found Petteway’s testimony as to his subjective
experience of pain was not entirely credible, Petteway has failed to show the
hypothetical was deficient. Rather, the ALJ determined Petteway’s restrictions
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based on the physical limitations caused by the pain level supported by the
objective medial evidence. In addition, the ALJ’s hypothetical included all of
Petteway’s physical impairments supported by the record. The ALJ presented a
hypothetical individual who (1) was Petteway’s age and education level; (2) could
lift and/or carry up to 10 lbs. freqeuntly and 20 lbs. occasionally; (3) could stand
and/or walk and sit for about 6 hours each in an 8-hour workday; (4) should avoid
bending, torso lifting, and climbing of ladders, although he could climb stairs
occasionally; and (5) should avoid concentrated exposure to extreme cold, heat,
wetness, humidity, noise, vibration, fumes, odors, dusts, gases, poor ventilation
and avoid even moderate exposure to hazards. These limitations were consistent
with the medical evidence and with Petteway’s own testimony. Therefore, the
hypothetical posed to the VE was proper because it contained all of Petteway’s
credible impairments, including the physical limitations caused by the medically-
supported level of pain. In response to the hypothetical, the VE testified there were
a significant number of jobs in the national economy that an individual with those
limitations could perform. Because the ALJ posed a proper hypothetical, the VE’s
testimony constitutes substantial evidence to support the denial of benefits. See
Ingram, 496 F.3d at 1270. Accordingly, we affirm.
AFFIRMED.
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