Diane Poellnitz v. Michael J. Astrue , 349 F. App'x 500 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-11862 ELEVENTH CIRCUIT
OCTOBER 21, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 07-00141-CV-RD-B
DIANE POELLNITZ,
Plaintiff-Appellant,
versus
MICHAEL J. ASTRUE,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(October 21, 2009)
Before TJOFLAT, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Diane Poellnitz appeals the district court’s order affirming the
Commissioner’s denial of her applications for disability insurance benefits, 42
U.S.C. § 405(g), and Supplemental Security Income (“SSI”), 42 U.S.C. §
1383(c)(3). On appeal, Poellnitz argues that: (1) the Administrative Law Judge
(“ALJ”) erred by discounting the opinions of treating and examining mental health
professionals in favor of non-examining sources in determining that she possessed
the residual functional capacity to perform her past work; and (2) the district court
erred in refusing to remand her case to the Commissioner based on additional
evidence that she first presented to the Appeals Council (“AC”). After thorough
review, we affirm.
When the ALJ denies benefits and the AC denies review, we generally
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
decision to determine whether it is supported by substantial evidence and whether
the correct legal standards were applied. Moore v. Barnhart, 405 F.3d 1208, 1211
(11th Cir. 2005). Substantial evidence is more than a mere scintilla, but less than a
preponderance, and is “such relevant evidence as a reasonable person would accept
as adequate to support a conclusion.” Id.; Falge v. Apfel, 150 F.3d 1320, 1322
(11th Cir. 1998). We will not reweigh the evidence, decide the facts anew, or
make credibility determinations. Moore, 405 F.3d at 1211. Moreover, when a
claimant challenges both the ALJ’s decision to deny benefits and the decision of
the AC to deny review based on new evidence, “a reviewing court must consider
2
whether that new evidence renders the denial of benefits erroneous.” Ingram v.
Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1262, 1265-66 (11th Cir. 2007).
Although we generally do not review a district court’s decision in social security
cases, we review a district court’s determination of whether remand is necessary
based on new evidence de novo. See Vega v. Comm’r of Soc. Sec., 265 F.3d
1214, 1218 (11th Cir. 2001).
First, we find no merit in Poellnitz’s argument that the ALJ erred by
discounting the opinions of treating and examining mental health professionals in
favor of non-examining sources in determining that she possessed the residual
functional capacity to perform her past work. An individual claiming disability
and SSI benefits carries the burden of demonstrating that she is disabled. Moore,
405 F.3d at 1211. The social security regulations outline a five-step, sequential
evaluation process to determine disability for both SSI and disability benefits
claims. Crayton v. Callahan, 120 F.3d 1217, 1219 (11th Cir. 1997). The ALJ must
evaluate: (1) whether the claimant engaged in substantial gainful employment; (2)
whether the claimant has a severe impairment; (3) whether the severe impairment
meets or equals an impairment in the Listing of Impairments; (4) whether the
claimant has the residual functional capacity to perform her past relevant work; and
(5) whether, in light of the claimant’s residual functional capacity, age, education,
3
and work experience, there are other jobs the claimant can perform. Phillips v.
Barnhart, 357 F.3d 1232, 1237 (11th Cir. 2004); 20 C.F.R. §§ 404.1520(a)(4),
416.920(a)(4).
In evaluating medical opinions, the ALJ is directed to consider many factors,
including the examining relationship, the treatment relationship, whether an
opinion is amply supported, whether an opinion is consistent with the record, and a
doctor’s specialization. 20 C.F.R. § 404.1527(d). Generally, the opinions of
examining or treating physicians are given more weight than non-examining or
non-treating physicians unless “good cause” is shown. See id. § 404.1527(d)(1),
(2), (5); Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997). Good cause
exists to discredit a physician’s testimony when it is contrary to or unsupported by
the evidence of record, or it is inconsistent with the physician’s own medical
records. Phillips, 357 F.3d at 1240-41. Accordingly, the ALJ may reject the
opinion of any physician when the evidence supports a contrary conclusion.
Sryock v. Heckler, 764 F.2d 834, 835 (11th Cir. 1985). Where an ALJ articulates
specific reasons for failing to accord the opinion of a treating or examining
physician controlling weight and those reasons are supported by substantial
evidence, there is no reversible error. Moore, 405 F.3d at 1212.
4
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 a consulting physician’s opinion
where it was consistent with the 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 and ALJ will place on that opinion. 20 C.F.R. §
404.1527(d)(4). Thus, 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, however, a non-examining
physician’s assessment does not contradict the examining physician’s report, the
ALJ does not err in relying on the non-examining physician’s report. 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.
In determining that Poellnitz could perform unskilled work in a setting
involving infrequent public contact, the ALJ did not err in discounting the opinion
of the examining physician, Dr. Nina Tocci, and relying on the opinion of the non-
5
examining physicians. First, the ALJ articulated specific and legitimate reasons for
rejecting Dr. Tocci’s assessment of marked and extreme mental limitations. As
noted by the ALJ, Dr. Tocci’s opinion was called into question by her own reports
and by Poellnitz’s statements regarding her activities of daily living. Further, Dr.
Tocci’s opinion not only conflicted with the mild to moderate limitations described
by the three non-examining physicians -- Drs. Eno, Simpson, and Gardner -- but
also with the medical records first submitted to the AC from West Alabama Mental
Health Center, which had examined and/or treated Poellnitz for depression.
In addition, the opinions of the non-examining physicians were consistent
with the medical evidence in the record, including information contained in Dr.
Tocci’s examination report, which assigned Poellnitz a Global Assessment of
Functioning (“GAF”) score of 55, as well as Poellnitz’s reports regarding her daily
functioning. So, while the overall assessments of the non-examining physicians
conflict with Dr. Tocci’s ultimate conclusion of severe limitations, they are
actually supported by Dr. Tocci’s more specific findings. Their opinions therefore
are not necessarily entitled to little weight, and may constitute substantial evidence
to support the ALJ’s determination. See id.; Edwards, 937 F.2d at 584-85.
Moreover, the additional evidence submitted to the AC did not provide a
basis for disturbing the ALJ’s decision. This evidence generally showed treatment
6
for abdominal pain and complaints of depression and anxiety, which were already
reflected in the evidence submitted to the ALJ. And while the medical records
from the West Alabama Mental Health Center indicated that Poellnitz had major
problems with her ability to work, they noted that she exhibited only moderate
difficulties with attention, concentration, and memory, which simultaneously
conflicts with Dr. Tocci’s assessment and comports with the non-examining
physicians’ opinions that, at most, Poellnitz evinced moderate limitations in
maintaining concentration, persistence, and attention. Accordingly, even in the
light of the additional evidence submitted to the AC, substantial evidence supports
the ALJ’s decision to discount the opinion of Dr. Tocci in favor of those of the
non-examining physicians.1
Next, we are unpersuaded by Poellnitz’s claim that the district court erred in
refusing to remand her case to the Commissioner based on additional evidence that
she first presented to the AC. Generally, a claimant is allowed to present new
evidence at each stage of the administrative process. See 20 C.F.R. § 404.900(b);
Ingram, 496 F.3d at 1260-61. The AC must consider new, material, and
chronologically relevant evidence and must review the case if the ALJ’s “action,
1
Notably, contrary to Poellnitz’s suggestion, the district court did not ignore her history
of depression. Rather, it determined that Dr. Tocci’s assessment of the severity of Poellnitz’s
symptoms and impairments was not entirely credible in light of the objective medical evidence.
7
findings, or conclusion is contrary to the weight of the evidence currently of
record.” 20 C.F.R. 404.970(b).
Section 405(g) permits a district court to remand an application for benefits
to the Commissioner by two methods: (1) under sentence four of the statutory
provision, the court may enter “a judgment affirming, modifying, or reversing the
decision of the Commissioner of Social Security, with or without remanding the
cause for a rehearing”; or (2) under sentence six, the court may “order additional
evidence to be taken before the Commissioner of Social Security, but only upon a
showing that there is new evidence which is material and that there is good cause
for the failure to incorporate such evidence into the record in a prior proceeding.”
42 U.S.C. § 405(g).
Sentence-six and sentence-four remands are designed to remedy separate
problems. Ingram, 496 F.3d at 1261. Sentence-six remands are “available when
evidence not presented to the Commissioner at any stage of the administrative
process requires further review.” Id. at 1267. Sentence six “does not grant a
district court the power to remand for reconsideration of evidence previously
considered by the [AC].” Id. at 1269. Thus, remand to the Commissioner is
warranted under sentence six when (1) new, noncumulative evidence exists, (2) the
evidence is material, and (3) good cause exists for the claimant’s failure to submit
8
the evidence at the administrative level. See Vega, 265 F.3d at 1218; Ingram, 496
F.3d at 1267 (noting that remand is “proper under sentence six when new material
evidence that was not incorporated into the administrative record for good cause
comes to the attention of the district court”).
In contrast, a sentence-four remand is appropriate when the evidence was
properly before the Commissioner, but “the [AC] did not adequately consider the
additional evidence.” Ingram, 496 F.3d at 1268 (quotation omitted). Under
sentence four of § 405(g), the district court must generally “consider evidence not
submitted to the administrative law judge but considered by the [AC] when that
court reviews the Commissioner’s final decision denying Social Security benefits.”
Id. at 1257-58. Generally speaking, to warrant a sentence-four remand, the court
must either find that the decision is not supported by substantial evidence, or that
the Commissioner incorrectly applied the law relevant to the disability claim.
Jackson v. Chater, 99 F.3d 1086, 1091-92 (11th Cir. 1996). Nevertheless, our
precedent has not firmly established whether a claimant who first presents
additional evidence to the AC is required to demonstrate good cause in order to
warrant remand. Compare Vega, 265 F.3d at 1218-20 (applying the good-cause
standard to evidence that the claimant first submitted to the AC), with Ingram, 496
F.3d at 1265-69 (criticizing Vega’s application of “the standard that governs the
9
introduction of new evidence to a federal court under sentence six” and suggesting
that the good-cause standard is immaterial to sentence-four situations where
evidence is submitted to the AC and incorporated into the administrative record).
Contrary to Poellnitz’s contention, review of the record indicates that the
district court properly considered the additional evidence submitted to the AC in
reviewing the Commissioner’s final decision, as is required under Ingram.
Although the magistrate judge did not specifically discuss the additional evidence
in analyzing whether substantial evidence supported the ALJ’s unfavorable
decision, she expressly noted that she considered all the medical evidence
contained in the record, which would include the additional evidence incorporated
into the record by the AC, and explicitly considered the evidence in reviewing
whether the AC erred in denying review. Thus, the district court did not err in
refusing to consider the evidence first submitted to the AC.
Moreover, although we have not firmly established whether a claimant who
first presents additional evidence to the AC is required to demonstrate good cause
to warrant remand, Poellnitz’s case would not merit remand under either possible
standard. If a showing of good cause were required in sentence-four circumstances,
Poellnitz would fail because the evidence was available before the ALJ’s decision
was rendered, and she had not proffered any reason for not presenting it at that
10
stage of the administrative process. Alternatively, if good cause is immaterial to
the question of remand, Poellnitz has not demonstrated that the ALJ’s decision was
not supported by substantial evidence, or that the Commissioner incorrectly
applied the relevant law. See Jackson, 99 F.3d at 1091-92. Thus, even without a
good-cause requirement, Poellnitz would not merit remand to the Commissioner
pursuant to sentence four of § 405(g). Accordingly, we affirm the district court’s
determination that remand was not warranted.
AFFIRMED.
11