Tommie Kemp, Jr. v. Michael J. Astrue ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-12805 ELEVENTH CIRCUIT
JANUARY 26, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 06-00098-CV-5
TOMMIE KEMP, JR.,
Plaintiff-Appellant,
versus
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(January 26, 2009)
Before ANDERSON, BIRCH and HULL, Circuit Judges.
PER CURIAM:
Tommie Kemp (“Kemp”) appeals the district court’s order affirming the
Social Security Administration’s (“SSA”) denial of disability insurance benefits.
Kemp argues that the Administrative Law Judge (“ALJ”) erred by (1) finding that
his post-traumatic stress disorder (“PTSD”) did not constitute a severe impairment;
(2) failing to place great weight on the disability percentages that the Veterans’
Administration (“VA”) assigned to Kemp; (3) relying on the reports of non-
examining physicians to determine that Kemp had the residual functional capacity
to perform medium work; (4) finding that Kemp was literate; and (5) discrediting
Kemp’s testimony regarding the nature, intensity, and duration of his symptoms
solely because the ALJ found that Kemp had testified incredibly regarding his
literacy. For the reasons set forth, we affirm.
I. BACKGROUND
Kemp filed an application for disability benefits, claiming that he was
unable to work because of a disabling condition since November 1, 2000. Kemp
later amended the date of the onset of his disability to January 1, 2002. Kemp
identified back injuries, PTSD, high blood pressure, diabetes, shortness of breath,
and a heart condition. After the Commissioner denied his application, Kemp
obtained a hearing from an ALJ. The ALJ determined that Kemp’s PTSD was not
a severe impairment and that his other conditions did not meet or equal the listed
impairments to receive benefits. The ALJ determined that Kemp maintained the
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residual functional capacity to perform medium work. The ALJ denied benefits.
A magistrate judge recommended that Kemp’s case should be remanded for further
proceedings; however, the district court was not persuaded and entered judgment
affirming the Commissioner and dismissing the case.
II. STANDARD OF REVIEW
We review a social security case de novo when reviewing the legal
principles underlying the ALJ’s decision, but review “the resulting decision only to
determine whether it is supported by substantial evidence.” Moore v. Barnhart,
405 F.3d 1208, 1211 (11th Cir. 2005). “Substantial evidence is defined as more
than a scintilla, i.e., evidence that must do more than create a suspicion of the
existence of the fact to be established, and such relevant evidence as a reasonable
person would accept as adequate to support the conclusion.” Foote v. Chater, 67
F.3d 1553, 1560 (11th Cir. 1995) (citation omitted). We may not reweigh the
evidence or substitute our own judgment for that of the ALJ, even if we find that
the evidence preponderates against the ALJ’s decision. Martin v. Sullivan, 894
F.2d 1520, 1529 (11th Cir. 1990). Where an ALJ makes a factual error, the error
will be considered harmless if it is clear that the error did not affect the ALJ’s
ultimate determination. See Diorio v. Heckler, 721 F.2d 726, 728 (11th Cir. 1983).
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III. DISCUSSION
The Social Security regulations set forth the following five-step “sequential
evaluation” process to determine whether a claimant is disabled: (1) the disability
examiner determines whether the claimant is engaged in “substantial gainful
activity”; (2) if not, the examiner decides whether the claimant’s condition or
impairment is “severe,” i.e., whether it significantly limits claimant’s physical or
mental ability to do basic work activities; (3) if so, the examiner decides whether
the claimant’s impairment meets or equals the severity of the specified
impairments in the Listing of Impairments (“Listing”), thereby precluding any
gainful work activity; (4) if the claimant has a severe impairment that does not
meet or equal the severity of an impairment in the Listing, the examiner assesses a
claimant’s “residual functional capacity,” which measures whether a claimant can
perform past relevant work despite the impairment; and (5) if the claimant is
unable to do past relevant work, the examiner determines whether, in light of
residual functioning capacity, age, education, and work experience, the claimant
can perform other work. Crayton v. Callahan, 120 F.3d 1217, 1219 (11th Cir.
1997); 20 C.F.R. §§ 404.1520 (c)-(f), 416.920(c)-(f).
A. Whether the ALJ erred in determining that Kemp’s PTSD did not
constitute a severe impairment
Kemp argues that the ALJ erred in finding that his PTSD did not constitute a
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severe impairment because the ALJ’s determination was not supported by
substantial evidence, the ALJ discredited the opinions of the VA and Kemp’s
physicians, and the ALJ erroneously asserted that Kemp never reported mental
health symptoms to the VA.
The claimant bears the burden of showing that he has a severe impairment or
combination of impairments. Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir.
1999). An impairment is not severe if it does not significantly limit one’s physical
or mental ability to do basic work activities. 20 C.F.R. § 404.1521(a); see also
Davis v. Shalala, 985 F.2d 528, 532 (11th Cir. 1993) (stating that an impairment is
severe if it “causes more than a minimal limitation on a claimant’s ability to
function”). Examples of basic work activities include: (1) physical functions such
as walking, standing, sitting, lifting, reaching, and carrying; (2) the capacity to see,
hear, and speak; (3) understanding, carrying out, and remembering simple
instructions; (4) use of judgment; (5) responding appropriately to supervision, co-
workers, and usual work situations; and (6) dealing with changes in a routine work
setting. 20 C.F.R. § 404.1521(b).
In assessing Kemp’s PTSD, the ALJ acknowledged that the VA rated Kemp
as 30% disabled. However, the ALJ determined that the available evidence did not
support treating Kemp’s PTSD as a severe impairment under the SSA guidelines.
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The ALJ relied on the report from a treating physician, Jack Gibbs, M.D., stating
that Kemp was doing well with his medication to control the symptoms. The
physician noted that Kemp was able to follow complex instruction, that his
memory was good, and that his intellect appeared normal. These findings were all
made with the understanding that Kemp had PTSD; however, the reports suggest
that the medication kept Kemp’s symptoms manageable. Furthermore, Kemp
repeatedly reported that he was not depressed. The ALJ also considered Dr.
Acker’s report finding that Kemp could carry out simple instructions, but would
have some difficulty getting along with others due to back pain and depression.
The ALJ assigned less value to Dr. Acker’s report due to discrepancies in his
opinion. The ALJ weighed the evidence and determined that Kemp failed to meet
his burden at step two of the evaluation process because Kemp was unable to
establish that PTSD was a severe impairment.
The evidence provides a substantial basis to support the ALJ’s
determination that Kemp’s PTSD was not a severe impairment, as well as a
sufficient basis for the ALJ to give less weight to the opinions of the VA and
Kemp’s physicians regarding his PTSD. Additionally, as to whether the ALJ erred
in asserting that Kemp never reported mental health symptoms to the VA, any
factual mistake the ALJ made is harmless in light of the rest of the evidence.
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B. Whether the ALJ failed to give great weight to the disability ratings the
VA assigned to Kemp
Kemp asserts that the ALJ failed to give the disability ratings that the VA
assigned to Kemp great weight. “A VA rating is certainly not binding on the
Secretary, but it is evidence that should be considered and is entitled to great
weight.” Rodriguez v. Schweiker, 640 F.2d 682, 686 (5th Cir. 1981). The SSA
regulations specify that a decision by any non-governmental or governmental
agency about whether an individual is disabled is based on its own rules and does
not constitute a SSA decision about whether an individual is disabled. 20 C.F.R.
§ 404.1504.
The ALJ must “state specifically the weight accorded to each item of
evidence and why he reached that decision.” Cowart v. Schweiker, 662 F.2d 731,
735 (11th Cir. 1981). We have recognized, however, that the ALJ may implicitly
make a determination. See Hutchison v. Bowen, 787 F.2d 1461, 1463 (11th Cir.
1986) (recognizing that the ALJ may make an implied finding that a claimant did
not meet a listed impairment).
In this case, the ALJ did not specifically state that he gave great weight to
the VA’s disability ratings. However, the ALJ continuously refers to the VA’s
evaluations and disability rating throughout the evaluation process. The ALJ gave
specific reasons for why the VA’s 30% disability rating based on PTSD did not
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qualify the condition as a severe impairment under the SSA guidelines. The ALJ
relied on the VA’s diabetes determination in finding that the diabetes was a severe
impairment. Furthermore, the ALJ relied on VA records to determine that Kemp
had cervical spondylosis, that Kemp had mild carpal tunnel syndrome, and that
Kemp could walk up to a mile and climb two flights of stairs.
The ALJ relied on the VA records and referenced the disability ratings, in
addition to rest of the relevant evidence, throughout his decision. As a result, he
implicitly found that the VA disability ratings were entitled to great weight.
C. Whether the ALJ erred in adopting and relying on non-examining
physicians in determining Kemp’s residual functional capacity
Kemp argues that the ALJ erred in adopting and relying on the findings of
non-examining physicians in order to determine that Kemp had sufficient residual
functional capacity to perform medium work. The residual functional capacity
determination is based on all of the evidence in the record. Lewis v. Callahan, 125
F.3d 1436, 1440 (11th Cir. 1997); 20 C.F.R. § 404.1545(a)(1). The opinion of a
non-examining physician is entitled to little weight when it contradicts the opinion
of an examining physician. Lamb v. Bowen, 847 F.2d 698, 703 (11th Cir. 1988).
Where a non-examining physician’s report includes information that is not
contained in the examining physicians’ reports, but does not contradict the
examining physicians’ reports, the ALJ does not err in relying on the non-
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examining physician’s report to the extent it contains non-contradictory
information. See Edwards v. Sullivan, 937 F.2d 580, 584-85 (11th Cir. 1991).
Nevertheless, the opinion of a non-examining physician, standing alone, does not
constitute substantial evidence. Lamb, 847 F.2d at 703.
The weight to be given a non-examining physician’s opinion depends,
among other things, on the extent to which it is supported by clinical findings and
is consistent with other evidence. See 20 C.F.R. § 404.1527(d)(3)-(4); see also
Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158, 1160 (11th Cir. 2004)
(holding that the ALJ did not err in relying on consulting physician’s opinion
where it was consistent with medical evidence and findings of the examining
physician). Generally, the more consistent a physician’s opinion is with the record
as a whole, the more weight an ALJ will place on that opinion. 20 C.F.R. §
404.1527(d)(4).
The ALJ relied on a non-examining physician’s opinion in determining that
Kemp’s residual functional capacity was medium in part because no treating
physician ever determined Kemp’s residual functional capacity. Furthermore, Dr.
Gertler’s opinion (the non-examining physician) was based on his review of the
medical records including reports from one of the examining physicians. Dr.
Gertler relied on Dr. Wallace’s opinion (an examining physician) that Kemp had a
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normal gait, normal reflexes, and a full range of motion in all of his joints with the
exception of the cervical and lumbar spine. Dr. Gertler determined that Kemp
could lift up to 50 pounds, frequently lift 25 pounds, stand or walk for about 6
hours in a workday, balance, crawl, and occasionally stoop. Evidence from the VA
medical records also indicated that Kemp had good strength and range of motion
and that many of his symptoms were not severe.
In determining that Kemp could perform medium work, the ALJ did not err
in relying on the opinions of non-examining physicians because these opinions
were consistent with the opinion of examining physicians as well as with the other
medical evidence in the record.
D. Whether the ALJ’s determination that Kemp was literate is
supported by substantial evidence
Kemp argues that the ALJ’s determination that Kemp was literate is not
supported by substantial evidence, and that the ALJ erred by discrediting evidence
that Kemp was illiterate. The ALJ must state with particularity the weight given to
different medical opinions and the reasons therefore. Sharfarz v. Bowen, 825 F.2d
278, 279 (11th Cir. 1987). The ALJ should consider a physician’s opinion in
accordance with the factors set forth in the guidelines: (1) the examining
relationship; (2) the treatment relationship; (3) supportability; (4) consistency; (5)
specialization; and (6) other factors. 20 C.F.R. § 404.1527(d). The Commissioner
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may reject any medical opinion if the evidence supports a contrary finding. Syrock
v. Heckler, 764 F.2d 834, 835 (11th Cir. 1985). Where an ALJ discredits a
claimant’s subjective testimony, he must articulate explicit reasons, supported by
substantial evidence, for doing so. See Wilson v. Barnhart, 284 F.3d 1219, 1225-
26 (11th Cir. 2002).
There is some dispute as to the level of education attained by Kemp. Some
records indicate that Kemp only completed sixth grade while others indicate that he
graduated from high school. The ALJ did not solely base his conclusion that
Kemp was literate on the reports stating that Kemp graduated high school. The
ALJ determined that Kemp’s promotions in the military, his expert rating on
operating weapons, and his previous employment as a dry feeder that required him
to read and write reports all pointed to Kemp being literate. The ALJ determined
that Kemp’s subjective testimony was not credible based on the fact that Kemp’s
records had so many discrepancies regarding his educational history and that his
employment and military history contradicted his direct testimony that he was
illiterate. The ALJ gave specific reasons why Kemp’s testimony lacked credibility
and provided specific reasons for the determination that Kemp is literate.
Although there is some evidence in the record suggesting that Kemp might
be illiterate, the evidence provided a substantial basis to support the ALJ’s
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determination that Kemp was literate as well as a sufficient basis for the ALJ to
discredit evidence that Kemp was illiterate.
E. Whether the ALJ erred by determining that Kemp’s testimony
regarding his symptoms was not credible
Kemp argues that the ALJ erred in finding that his testimony regarding the
intensity, effect, and duration of his symptoms was not credible solely because he
found that Kemp had not credibly testified regarding his literacy.
Where an ALJ decides not to credit a claimant’s testimony, the ALJ must
articulate specific and adequate reasons for doing so. Wilson, 284 F.3d at 1225. A
reviewing court should not disturb a clearly articulated credibility finding with
substantial supporting evidence in the record. Foote, 67 F.3d at 1561-62.
Despite Kemp’s contention, the ALJ did not solely base his determination
that Kemp’s testimony regarding his symptoms was not credible on the ALJ’s
determination that Kemp had lied about being illiterate. A reading of the ALJ’s
decision reveals that the ALJ relied on objective medical evidence and evidence of
Kemp’s daily activities to determine Kemp’s disability status. The ALJ looked at
the reports from the VA and examining physicians along with Kemp’s daily
activity reports. Furthermore, the ALJ noted that Kemp stopped working because
the plant shut down, not due to any physical incapacitation. The medical evidence
in the record, together with the ALJ’s finding that Kemp had not credibly testified
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regarding his literacy, provided a substantial basis to support the ALJ’s
determination that Kemp did not credibly testify regarding the nature, intensity,
and duration of his symptoms.
IV. CONCLUSION
Based on the foregoing, the opinion of the district court is affirmed.
AFFIRMED.
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