Dorothy Markuske v. Commissioner of Social Secuirty , 572 F. App'x 762 ( 2014 )


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  •            Case: 13-15769   Date Filed: 07/17/2014   Page: 1 of 11
    [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 13-15769
    Non-Argument Calendar
    ________________________
    D.C. Docket No. 9:12-cv-80941-FJL
    DOROTHY MARKUSKE,
    Plaintiff-Appellant,
    versus
    COMMISSIONER of SOCIAL SECURITY,
    Defendant-Appellee.
    ________________________
    Appeal from the United States District Court
    for the Southern District of Florida
    ________________________
    (July 17, 2014)
    Before CARNES, Chief Judge, TJOFLAT and JORDAN, Circuit Judges.
    PER CURIAM:
    Case: 13-15769     Date Filed: 07/17/2014    Page: 2 of 11
    Dorothy Markuske appeals the district court’s decision affirming the denial
    of her application for disability insurance benefits. She contends that the
    Administrative Law Judge (ALJ) erred by failing to: (1) give proper deference to
    her treating physician’s opinion, (2) credit her subjective complaints about her
    pain, and (3) provide substantial evidence that there were significant jobs in the
    national economy available to someone in her position.
    I.
    Markuske filed an application in July 2009 for disability insurance benefits
    under the Social Security Act. See 
    42 U.S.C. § 423
    . Markuske had worked as a
    computer programmer from 1984 to 2004, but quit because pain and numbness in
    her hands and arms prevented her from concentrating on her coding. She claimed
    that, beginning in January 2009, she was disabled due to carpal tunnel syndrome in
    both hands, ulnar nerve neuritis, cubital tunnel syndrome, median neuropathy,
    tendonopathy of the distal triceps tendon, a cervical disc protrusion, osteoarthritis,
    and muscle spasms. The Social Security Administration denied her initial
    application and her request for reconsideration. Markuske then sought a hearing
    before an ALJ, which was held on May 18, 2011.
    The ALJ applied the established five-step analysis for determining eligibility
    for disability insurance benefits. See Winschel v. Comm’r of Soc. Sec., 
    631 F.3d 1176
    , 1178 (11th Cir. 2011); 
    20 C.F.R. § 404.1520
     (2013). The ALJ found as
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    follows: (1) Markuske had not engaged in substantial gainful activity from her
    alleged onset date of January 21, 2009, through December 31, 2009, which was her
    date last insured. 1 (2) Markuske had severe impairments consisting of depression,
    anxiety, specific phobia (situational), fibromyalgia, and carpal tunnel syndrome.
    (3) Those impairments did not meet or equal one of the Commissioner’s listings of
    impairment, whether considered singly or in combination. (4) Markuske retained
    the residual functional capacity (RFC) to perform a reduced range of light work but
    was unable to perform her past relevant work.
    In the fifth and final step, the burden of proof shifts to the Commissioner to
    prove that there is a significant number of jobs in the national economy that the
    claimant is capable of performing. Doughty v. Apfel, 
    245 F.3d 1274
    , 1278 & n.2
    (11th Cir. 2001). The ALJ therefore elicited testimony from a vocational expert
    (VE). In her first hypothetical question, the ALJ asked the VE if a person of
    Markuske’s age, education, and work experience could perform certain jobs
    existing in the national economy if she were limited to: (1) performing light work;
    (2) never climbing ladders, ropes, or scaffolds; (3) occasionally climbing stairs and
    ramps; (4) occasionally balancing, stooping, kneeling, crouching, and crawling; (5)
    frequently performing fine and gross manipulations with her dominant hand; and
    1
    The ALJ determined that Markuske had “acquired sufficient quarters of coverage to remain
    insured through December 31, 2009” but no further. See generally 
    20 C.F.R. § 404.101
     (2013).
    Markuske does not dispute that determination.
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    (6) receiving only simple instructions and procedures. The VE answered that there
    was sufficient work available to such a person, including as a housekeeper and a
    sales attendant. The ALJ then asked a second hypothetical question that further
    limited the hypothetical individual to only occasional fine and gross manipulation
    with her dominant hand. The VE responded that there would still be sufficient
    work available, including as a furniture rental consultant and a children’s attendant.
    Finally, the ALJ changed the limitation on the hypothetical individual’s dominant
    hand one more time, asking what jobs would be available if the individual had
    “limited right-hand dominant fingering.” The VE answered that “[a]ll light jobs”
    would be available to such an individual, including housekeeper, sales attendant,
    furniture rental consultant, and children’s attendant. Based on the VE’s testimony,
    the ALJ determined that Markuske had sufficient work opportunities and therefore
    was not entitled to disability insurance benefits.
    Markuske requested review by the Social Security Appeals Council and had
    her request denied in July 2012. She then filed suit in district court, seeking
    judicial review of the Commissioner’s decision under 
    42 U.S.C. § 405
    (g). The
    district court granted summary judgment in favor of the Commissioner in
    November 2013. This is Markuske’s appeal.
    II.
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    We review de novo the district court’s decision in a Social Security case,
    applying the same standards as the district court. Ingram v. Comm’r of Soc. Sec.
    Admin., 
    496 F.3d 1253
    , 1260 (11th Cir. 2007); Miles v. Chater, 
    84 F.3d 1397
    ,
    1400 (11th Cir. 1996). That means we review de novo the Commissioner’s legal
    conclusions, but review factual findings only to determine if “substantial evidence”
    supports them. Ingram v, 
    496 F.3d at 1260
     (quotation marks omitted). On the
    evidentiary continuum, substantial evidence falls in between a scintilla of evidence
    and a preponderance of the evidence. Miles, 
    84 F.3d at 1400
    . Evidence is
    “substantial” if a reasonable person could accept that it adequately supports a
    conclusion. 
    Id.
    A.
    Markuske contends that the ALJ’s RFC assessment should have included the
    limitations identified by her treating neurologist, Dr. Qin Gu, in a medical source
    statement form. 2 The opinion of a treating physician “is entitled to substantial
    weight unless good cause exists for not heeding the treating physician’s diagnosis.”
    Edwards v. Sullivan, 
    937 F.2d 580
    , 583 (11th Cir. 1991). Good cause exists if,
    among other things, the ALJ “clearly articulates” why the “evidence supported a
    contrary finding.” Phillips v. Barnhart, 
    357 F.3d 1232
    , 1241 (11th Cir. 2004).
    2
    The medical source statement form is a standardized questionnaire used to ascertain a
    physician’s opinion on the claimant’s physical or mental limitations. See, e.g., Cox v. Barnhart,
    
    345 F.3d 606
    , 610 (8th Cir. 2003); 
    20 C.F.R. § 404.1513
    (b)(6) (2013).
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    In filling out the form, Dr. Gu gave answers that placed severe limitations on
    Markuske’s ability to work. For example, he indicated that Markuske’s
    impairments would prevent her from: lifting objects on more than an occasional
    basis, standing or walking for more than two hours each workday, and sitting for
    more than two hours each workday. Dr. Gu also estimated that Markuske’s
    impairments would cause her to miss more than four workdays per month. Every
    time the form asked Dr. Gu to identify the medical findings supporting his opinion,
    he answered that he based his opinion on the “chief complaints” he heard from
    Markuske.
    The ALJ gave Dr. Gu’s assessment “little weight” because it was “not
    supported by evidence in the record.” First, the ALJ cited Dr. Gu’s own treatment
    notes, which indicated that an MRI showed that Markuske had “only a minimal
    disc protrusion and mild degenerative disc disease of the cervical spine” and that
    medication had “stabilized” her neck pain. Second, the ALJ cited Markuske’s
    “self-report that her medications were effective in relieving her pain symptoms.”
    For example, her chiropractor’s treatment notes show that, after two months of
    chiropractic treatment and taking Aleve, Markuske reported a dramatic
    improvement in her back and neck pain. Her neck pain went from a seven on a
    ten-point scale to a four, and her back pain went from a four to a two. And in the
    “Pain Report” that Markuske included with her disability application, she
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    acknowledged that Zanaflex helped relieve her pain symptoms. Finally, the ALJ
    noted that the doctors who examined Markuske’s back reported only “minimal
    findings of tenderness of the lumbar and sacral regions.”
    The ALJ provided a clear articulation of why the evidence undermined Dr.
    Gu’s opinion on the medical source statement form and thus established good
    cause. See Edwards, 
    937 F.2d at 583
    . The contradictory treatment notes from Dr.
    Gu, statements from Markuske, and clinical observations all supported the ALJ’s
    finding that Dr. Gu’s answers on the medical source statement form were
    exaggerations of Markuske’s limitations. See Phillip, 
    357 F.3d at 1241
     (holding
    that the evidence supported the ALJ’s contrary finding where the treating physician
    was contradicted by his previous treatment notes and the claimant’s admissions
    about her activities). The ALJ therefore did not err by giving the form little
    weight.
    3 B. 3
    We also note that the record provides an additional ground for the ALJ’s decision. “A
    treating physician’s report may be discounted when it is not accompanied by objective medical
    evidence or is wholly conclusory.” Crawford v. Comm’r of Soc. Sec., 
    363 F.3d 1155
    , 1159
    (11th Cir. 2004) (quotation marks omitted). Thus, an ALJ may discount a treating physician’s
    opinion where it “appears to be based primarily on [the claimant’s] subjective complaints of
    pain.” 
    Id.
     That is the case with Dr. Gu’s opinion. On the medical source statement form, Dr.
    Gu confirmed that all of his opinions on Markuske’s limitations were based on her “chief
    complaints.” Chief complaint is a medical term of art for the patient’s subjective description of
    the ailment for which she is seeking medical treatment. So Dr. Gu’s answers on the form were
    based on Markuske’s subjective complaints, not objective medical evidence that Dr. Gu gleaned
    through observation or testing.
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    Markuske also contends that the ALJ failed to properly credit her subjective
    complaints of pain and limitations. A claimant can establish a disability through
    personal testimony about pain or other symptoms. But the claimant must support
    that testimony by also meeting two parts of a three-part showing: “(1) evidence of
    an underlying medical condition; and (2) either (a) objective medical evidence
    confirming the severity of the alleged pain; or (b) that the objectively determined
    medical condition can reasonably be expected to give rise to the claimed pain.”
    Wilson v. Barnhart, 
    284 F.3d 1219
    , 1225 (11th Cir. 2002). If the claimant satisfies
    that three-part test, the ALJ cannot discredit the claimant’s testimony unless the
    ALJ “articulate[s] explicit and adequate reasons for doing so.” 
    Id.
    At the hearing before the ALJ, Markuske testified that she had “constant
    pain” in her hands and neck. She also described experiencing a “shooting pain . . .
    that goes from my neck down my arms.” She explained that the neck pain also led
    to the headaches that prevented her from continuing to work as a computer
    programmer. Finally, she said that she suffered pain in her lower back and hips if
    she sat or stood too long.
    The ALJ concluded that Markuske’s subjective complaints of pain were not
    credible to the extent that they were inconsistent with the RFC determination that
    the ALJ had made. The ALJ justified that conclusion based on her finding that
    “the medical evidence reflects only minimal to mild medical findings for
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    impairments of the back, neck and elbow.” First, the ALJ addressed Markuske’s
    neck pain, noting that the same grounds for discounting Dr. Gu’s medical source
    statement form applied to Markuske’s complaints. Next, the ALJ addressed
    Markuske’s back pain. The ALJ pointed out that examining physicians noted only
    “minimal findings of tenderness of the lumbar and sacral regions” and “observed
    [her] sitting comfortably and having no difficulty getting out of a seated position.”
    Finally, the ALJ addressed Markuske’s carpal tunnel syndrome. The ALJ noted
    that nerve conduction studies showed that Markuske’s elbow pain had improved,
    culminating in Dr. Gu’s March 2009 study concluding that she had “[b]asically
    normal nerve conduction.” The ALJ also cited Dr. Gu’s January 2009 examination
    notes, in which he found that Markuske’s arms had “5/5 muscle strength, normal
    muscle tone, and normal range of motion of the shoulders despite tenderness and
    decreased strength of the right elbow and hand.”
    The objective medical evidence cited by the ALJ provided “adequate
    reasons” for her decision to partially discredit Markuske’s subjective complaints.
    See Wilson, 
    284 F.3d at 1225
    ; see also, e.g., Tucker v. Barnhart, 
    363 F.3d 781
    , 783
    (8th Cir. 2004).
    C.
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    Finally, Markuske contends that the ALJ’s hypothetical questions to the VE
    were fatally flawed because they did not include: (1) her moderate limitations in
    concentration, persistence, or pace; and (2) her phobia of the germs in hospitals.
    As for the concentration, persistence, or pace limitations, the ALJ found that
    Markuske had “moderate difficulties” in maintaining attention. The ALJ qualified
    that finding by pointing out that Markuske reported that she had “a ‘fine’ ability to
    follow written instructions,” and that a non-examining state agency consultant, Dr.
    Ronald Chase, had determined that she “could perform simple tasks at an
    acceptable pace.”4 The ALJ then incorporated those limitations in her hypothetical
    questions to the VE by specifying that the hypothetical individual “could
    understand, remember, and carry out simple instructions and procedures, . . . may
    show occasional difficulty with more complex tasks, [and] could sustain task and
    perform an acceptable pace.” The ALJ’s hypothetical question thus included the
    limitations supported by the medical evidence, which is all that is necessary. See
    Meredith v. Bowen, 
    833 F.2d 650
    , 654 (7th Cir. 1987) (“All that is required is that
    the hypothetical question be supported by the medical evidence in the record.”); cf.
    Winschel, 
    631 F.3d at
    1180–81 (indicating that an ALJ’s hypothetical question is
    proper if it matches the limitations specified by the medical evidence). Markuske
    4
    In full, Dr. Chase determined that Markuske “has the capacity to understand, remember and
    carry out simple instructions and procedures, and make appropriate decisions. [She] may show
    occasional difficulty with more complex tasks as a result of symptoms. [She] is able to sustain
    simple tasks and perform at an acceptable pace.”
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    does not identify any other limitations in concentration, persistence, or pace that
    were supported by medical evidence and omitted by the ALJ.
    As for Markuske’s phobia about germs in hospitals, none of the jobs
    identified by the VE were limited to hospitals. Most of them — housekeeper,
    furniture rental consultant, and children’s attendant — by definition involve work
    outside of a hospital setting. So even if we assume that the ALJ erred by omitting
    a limitation that addressed Markuske’s phobia of hospitals, that limitation would
    not have changed the VE’s answer or the ALJ’s legal conclusion. The alleged
    error was therefore harmless. See Diorio v. Heckler, 
    721 F.2d 726
    , 728 (11th Cir.
    1983) (holding that a mistake by the ALJ that does not affect her ultimate
    conclusion is harmless error).
    AFFIRMED.
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