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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-13697
Non-Argument Calendar
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D.C. Docket No. 4:17-cv-00029-JEO
MARTHA EVERETT,
Plaintiff-Appellant,
versus
SOCIAL SECURITY ADMINISTRATION,
COMMISSIONER,
Defendant-Appellee.
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Appeal from the United States District Court
for the Northern District of Alabama
________________________
(June 19, 2019)
Before MARCUS, ROSENBAUM, and ANDERSON, Circuit Judges.
PER CURIAM:
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Martha Everett appeals the order of the district court affirming the Social
Security Administration’s (“SSA”) denial of her application for disability insurance
benefits. On appeal, she argues that the administrative law judge (“ALJ”) erred in
giving partial weight to the opinion of her treating neurologist, Dr. Richard
Diethelm, and discounting his opinions regarding her functional capabilities and
the side effects of her medication. Everett contends that the ALJ also improperly
substituted his opinion regarding Everett’s functional capacity for the opinions of
psychologist Dr. David Wilson, who examined her on one occasion, and social
worker Dave Harvey. Finally, she argues that the ALJ’s decision was not supported
by substantial evidence because it was based on the testimony of a vocational
expert (“VE”), which was itself based on a hypothetical that did not include all of
Everett’s limitations.
I.
In Social Security appeals, we review the decision of an ALJ as the
Commissioner’s final decision when the ALJ denies benefits and the Appeals
Council denies review of the ALJ’s decision. Doughty v. Apfel,
245 F.3d 1274,
1278 (11th Cir. 2001). We review the Commissioner’s legal conclusions de novo
and consider whether the Commissioner’s factual findings are supported by
substantial evidence. Lewis v. Barnhart,
285 F.3d 1329, 1330 (11th Cir. 2002)
(per curiam). “Substantial evidence is more than a scintilla and is such relevant
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evidence as a reasonable person would accept as adequate to support a
conclusion.” Lewis v. Callahan,
125 F.3d 1436, 1440 (11th Cir. 1997). We do not
reweigh the evidence, make credibility determinations, or substitute our judgment
for that of the ALJ. Moore v. Barnhart,
405 F.3d 1208, 1211, 1213 (11th Cir. 2005)
(per curiam).
Eligibility for disability insurance benefits requires that the claimant is under
a disability.
42 U.S.C. § 423(a)(1)(E). In order to determine whether a claimant is
disabled, the Commissioner applies a five-step sequential evaluation.
20 C.F.R.
§ 404.1520(a)(4). This process includes an analysis of whether the claimant: (1) is
unable to engage in substantial gainful activity; (2) has a severe medically
determinable physical or mental impairment; (3) has such an impairment that
meets or equals a listed impairment and meets the duration requirements; (4) is
unable to perform her past relevant work, in light of her residual functional
capacity (“RFC”); and (5) cannot make an adjustment to other work, in light of her
RFC, age, education, and work experience.
Id.
When evaluating an applicant’s claim for social security disability benefits,
the ALJ must give “substantial weight” to the opinion of the applicant’s treating
physician “unless good cause exists for not heeding the treating physician’s
diagnosis.” Edwards v. Sullivan,
937 F.2d 580, 583 (11th Cir. 1991). This is
particularly true where treatment has been over a considerable period of time.
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Broughton v. Heckler,
776 F.2d 960, 962 (11th Cir. 1985) (per curiam). However,
the length of the relationship is only one factor used to determine the weight given
to a medical opinion. See
20 C.F.R. § 404.1527(c).
“‘Good cause’ [to discount a physician’s opinion] 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.” Phillips v. Barnhart,
357 F.3d 1232, 1240-41 (11th Cir. 2004). If the ALJ disregards or accords less
weight to the opinion of a treating physician, the ALJ must clearly articulate his
reasons, and the failure to do so is reversible error. Callahan,
125 F.3d at 1440.
The Commissioner, not a physician, is responsible for determining a
claimant’s RFC and whether a claimant is statutorily disabled.
20 C.F.R.
§§ 404.1527(d)(1), 416.927(d)(1). “A statement by a medical source that [a
claimant is] ‘disabled’ or ‘unable to work’ does not mean that [the Commissioner]
will determine that [the claimant is] disabled.”
Id. §§ 404.1527(d)(1),
416.927(d)(1).
Issues not briefed on appeal are deemed abandoned. Carmichael v. Kellogg,
Brown & Root Serv., Inc.,
572 F.3d 1271, 1293 (11th Cir. 2009).
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Here, the ALJ did not err in giving partial weight to Dr. Diethelm’s opinion.
First, the ALJ gave good cause for giving only partial weight to Dr. Diethelm’s
opinion, and Everett does not argue that the ALJ’s proffered “good cause” was not
supported by the record, so she has abandoned any argument to that point. In any
event, nothing in Dr. Diethelm’s records supports his conclusions about Everett’s
functional capabilities. His records show that on the two occasions that Everett
complained of side effects, he adjusted her medication, and she did not continue to
complain of those side effects at future visits. Moreover, the portions of
Dr. Diethelm’s records that mention Everett’s function capabilities were merely
describing Everett’s self-reported limitations, and the ALJ determined that Everett
was not credible as to her reporting the frequency or severity of her symptoms.
Finally, the remainder of the record belies the functional limitations mentioned in
the opinion, including the fact that Everett was the caretaker for her mother and
daughter, was dating, and was taking trips with friends and family. Accordingly,
the record supports the ALJ’s articulated good cause such that he did not err in
assigning partial weight to Dr. Diethelm’s opinion.
II.
“[T]he ALJ must state with particularity the weight given to different
medical opinions and the reasons therefor.” Winschel v. Comm’r of Soc. Sec.,
631 F.3d 1176, 1179 (11th Cir. 2011). The Commissioner may reject any medical
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opinion if the evidence supports a contrary finding. Sryock v. Heckler,
764 F.2d
834, 835 (11th Cir. 1985) (per curiam).
Opinions by one-time examiners are not entitled to deference or special
consideration. McSwain v. Bowen,
814 F.2d 617, 619 (11th Cir. 1987)
(per curiam). Similarly, opinions from individuals who are not acceptable medical
sources are not entitled to deference or special consideration.
20 C.F.R.
§§ 416.902(j), 416.913(a)(4), 416.927(f). Social workers are not “acceptable
medical sources.” See
20 C.F.R. § 416.902(a) (listing acceptable medical sources);
SSR 06-03p,
2006 WL 2329939 at *2 (S.S.A. Aug. 9, 2006) (stating that licensed
clinical social workers are not acceptable medical sources).
Here, the ALJ’s determination of Everett’s functional capacity was an
appropriate role in determining an issue that was reserved for the Commissioner; it
was not a substitution of his opinion for Harvey’s and Dr. Wilson’s. Neither
Harvey’s nor Dr. Wilson’s opinions were entitled to special consideration or
deference, because Harvey was a social worker and not an “acceptable medical
source,” and Dr. Wilson only saw Everett once and was not a “treating physician.”
Additionally, both Harvey’s and Dr. Wilson’s notes and objective findings
contradict their opinions. Finally, the other objective medical evidence in the
record contradict those opinions. For these reasons, the ALJ did not err in
assigning only partial weight to those opinions.
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III.
At the fifth step of the disability inquiry, the ALJ determines whether the
claimant can perform other work in light of the claimant’s RFC, age, education,
and work experience. Wilson v. Barnhart,
284 F.3d 1219, 1227 (11th Cir. 2002)
(per curiam). As part of this determination, the ALJ must consider the effect of the
claimant’s medications on her ability to work. See Cowart v. Schweiker,
662 F.2d
731, 737 (11th Cir. 1981) (concluding that the ALJ “failed in his duty to develop
the record fully because he neither elicited testimony nor made any findings
regarding the effect of [the claimant’s] prescribed medication on her ability to
work”). For a VE’s testimony to constitute substantial evidence, the ALJ must
pose a hypothetical question that comprises all of the claimant’s impairments.
Winschel,
631 F.3d at 1180. “The hypothetical need only include the claimant’s
impairments, not each and every symptom of the claimant.” Ingram v. Comm’r of
Soc. Sec.,
496 F.3d 1253, 1270 (11th Cir. 2007) (quotation marks and citation
omitted). The ALJ is not required to include findings in the hypothetical that the
ALJ properly has found to be unsupported. Crawford v. Comm’r of Soc. Sec.,
363 F.3d 1155, 1161 (11th Cir. 2004) (per curiam).
Here, the ALJ did not err in relying on the VE’s testimony. The hypothetical
posed to the VE encompassed all of the impairments that the ALJ found in
determining Everett’s RFC. Everett does not challenge the RFC determination on
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appeal, so she has abandoned any argument that the determination was
unsupported by the record. In any event, the only evidence that she points to as
indicating any limits beyond those stated in the hypothetical are the opinions of
Harvey, Dr. Diethelm, and Dr. Wilson, which were properly discounted by the ALJ
as contrary to the record. Because the hypothetical to the VE included all
impairments supported by the record, the ALJ properly relied on that testimony, so
we affirm.
AFFIRMED.
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