Mae Dorothy Eyre v. Commissioner, Social Security Administration , 586 F. App'x 521 ( 2014 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-11136
Non-Argument Calendar
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D.C. Docket No. 3:13-cv-00289-JBT
MAE DOROTHY EYRE,
Plaintiff-Appellant,
versus
COMMISSIONER, SOCIAL SECURITY ADMINISTRATION,
Defendant-Appellee.
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Appeal from the United States District Court
for the Middle District of Florida
________________________
(September 30, 2014)
Before MARCUS, ANDERSON, and EDMONDSON, Circuit Judges.
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PER CURIAM:
Mae Dorothy Eyre appeals the district court’s order affirming the
administrative law judge’s (“ALJ”) denial of her application for disability
insurance benefits and supplemental security income, pursuant to 42 U.S.C.
§§ 405(g) and 1383(c)(3). Briefly stated, Eyre argues that the ALJ erred by giving
“significant weight” to the opinion of Dr. Olin Hamrick, a non-examining
physician, and by giving “no weight” to the opinion of Dr. Felix Toro, whom Eyre
asserts is her treating psychiatrist. Eyre also argues that substantial evidence did
not support the ALJ’s finding that she performed her past jobs as a kitchen helper
and a hotel housekeeper at the level of substantial gainful activity, as determined
by the average monthly wages she earned over the time she was employed as a
kitchen helper and a hotel housekeeper.
I.
We review the ALJ’s decision when the ALJ denies benefits and, as is the
case here, the Appeals Council denies review of the ALJ’s decision. Doughty v.
Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001). We review the ALJ’s legal
conclusions de novo and “we review the resulting decision only to determine
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whether it is supported by substantial evidence.” Moore v. Barnhart, 405 F.3d
1208, 1211 (11th Cir. 2005). Substantial evidence requires more than a scintilla of
evidence and is such relevant evidence as a reasonable person would accept as
sufficient to support a conclusion. Winschel v. Comm’r of Soc. Sec., 631 F.3d
1176, 1178 (11th Cir. 2011). We do “not decide the facts anew, reweigh the
evidence, or substitute our judgment for that of the [ALJ].” Id. As long as the
decision is supported by substantial evidence, we will defer to the ALJ’s decision,
even if the evidence may preponderate against it. Crawford v. Comm’r of Soc.
Sec., 363 F.3d 1155, 1158-59 (11th Cir. 2004).
Eligibility for disability insurance benefits and supplemental security income
requires that the claimant is under a disability. 42 U.S.C. §§ 423(a)(1)(E),
1382(a)(1). In relevant part, a claimant is under a disability if she is unable to
engage in substantial gainful activity because of a medically determinable
impairment that can be expected to result in death or which has lasted or can be
expected to last continuously for at least 12 months. Id. §§ 423(d)(1)(A),
1382c(a)(3)(A). The claimant bears the burden of proving her disability.
Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003).
To determine whether a claimant is disabled, the ALJ applies a “five-step
sequential evaluation.” 20 C.F.R. §§ 404.1520(a), 416.920(a). This process
includes an analysis of whether the claimant (1) is currently engaged in substantial
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gainful activity; (2) has a severe and medically-determinable impairment; (3) has
such an impairment that meets or equals a Listing, and meets the duration
requirements; (4) can perform her past relevant work, in the light of her residual
functional capacity (“RFC”); and (5) can make an adjustment to other work, in the
light of her RFC, age, education, and work experience. Id. §§ 404.1520(a)(4),
416.920(a)(4).
In assessing medical opinions, the ALJ must consider a number of factors in
determining how much weight to give to each medical opinion, including
(1) whether the physician has examined the claimant; (2) the length, nature, and
extent of a treating physician’s relationship with the claimant; (3) the medical
evidence and explanation supporting the physician’s opinion; (4) how consistent
the physician’s “opinion is with the record as a whole”; and (5) the physician’s
specialization. Id. §§ 404.1527(c), 416.927(c). These factors apply to both
examining and non-examining physicians. Id. §§ 404.1527(e), 416.927(e). A
treating physician’s opinion must be given “substantial or considerable weight,”
unless “good cause” is shown to the contrary. Winschel, 631 F.3d at 1179; see also
20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2) (giving controlling weight to the
treating physician’s opinion unless it is inconsistent with other substantial
evidence). “Good cause exists when the (1) treating physician’s opinion was not
bolstered by the evidence; (2) evidence supported a contrary finding; or (3) treating
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physician’s opinion was conclusory or inconsistent with the doctor’s own medical
records.” Winschel, 631 F.3d at 1179 (quotations omitted). The ALJ owes no
deference to the opinion of a physician who conducted a single examination: as
such a physician is not a treating physician. McSwain v. Bowen, 814 F.2d 617, 619
(11th Cir. 1987).
In addition, the ALJ, not a claimant’s physician, is responsible for
determining 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 ALJ] will
determine that [the claimant is] disabled.” Id.
Upon considering medical opinions, “the ALJ must state with particularity
the weight given to different medical opinions and the reasons therefor.”
Winschel, 631 F.3d at 1179.
Here, Dr. Toro was unentitled to the status of a “treating physician,” because
he did not treat Eyre on a regular basis before the ALJ’s decision. See McSwain,
814 F.2d at 619. Moreover, Dr. Toro’s opinion on Eyre’s mental impairments was
not consistent with the record as a whole. See 20 C.F.R. §§ 404.1527(c),
416.927(c). Accordingly, we affirm the ALJ’s decision to give “no weight” to his
opinion. Further, the ALJ’s decision to give “significant” weight to Dr. Hamrick’s
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opinion is supported by substantial evidence contained in Eyre’s medical records.
See Winschel, 631 F.3d at 1178.
II.
A claimant will be found not disabled if she can return to her past relevant
work. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). A “claimant has the
burden of showing that certain work experience is not past relevant work.” Barnes
v. Sullivan, 932 F.2d 1356, 1359 (11th Cir. 1991). “Past relevant work is work that
[a claimant has] done within the past 15 years, that was substantial gainful activity,
and that lasted long enough for [the claimant] to learn to do it.” 20 C.F.R.
§§ 404.1560(b)(1), 416.960(b)(1).
The federal regulations define “substantial gainful activity” as “work activity
that is both substantial and gainful.” Id. §§ 404.1572, 416.972. “Substantial work
activity” is work “that involves doing significant physical or mental activities,”
even if on a part-time basis. Id. §§ 404.1572(a), 416.972(a). “Gainful work
activity,” in turn, is work activity done for pay or profit. Id. §§ 404.1572(b),
416.972(b). If the claimant is an employee, the ALJ will rely on certain guides to
determine if the claimant is substantially gainfully active. Important criteria in this
regard include the nature of the claimant’s work, how well she performed, how
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much time she spent at work, and whether her work was done under special
conditions. Id. §§ 404.1573, 416.973.
In evaluating work activity for substantial gainful activity purposes where
the claimant was an employee in the past, the chief consideration is the claimant’s
earnings from the work activity. Id. §§ 404.1574(a)(1), 416.974(a)(1). The ALJ
ordinarily will consider that the claimant either was or was not engaged in
substantial gainful activity if her average monthly earnings are above or below a
certain amount established by the Social Security Administration’s earnings
guidelines. Id. §§ 404.1574(b)(2)-(3), 416.974(b)(2)-(3); see also Johnson v.
Sullivan, 929 F.2d 596, 598 (11th Cir. 1991) (noting that earnings on income tax
returns create a rebuttable presumption that the taxpayer was gainfully employed).
Earnings, however, are not dispositive. Even where the claimant’s average
monthly earnings were below the amount established by the earnings guidelines, if
other evidence indicates that the claimant was engaged in substantial gainful
activity or that the claimant was in the position to control the amount of wages she
was paid, the ALJ can consider other information, including whether the work
performed was “comparable to that of unimpaired people in [the claimant’s]
community who [were] doing the same or similar occupations as their means of
livelihood, taking into account the time, energy, skill, and responsibility involved
in the work.” 20 C.F.R. §§ 404.1574(a)(1), (b)(3)(ii)(A), 416.974(a)(1),
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(b)(3)(ii)(A).
Here, the record did not indicate that Eyre earned enough money as a
kitchen helper and a hotel housekeeper for the work to be ordinarily considered
substantial gainful activity. See 20 C.F.R. §§ 404.1574(b)(2), 416.974(b)(2). But
other evidence on the energy, skill, and physical activity of her past work showed
that Eyre engaged in substantial gainful activity as a kitchen helper and a hotel
housekeeper. See id. §§ 404.1572(a), 404.1574(a)(1), (b)(3)(ii), 416.972(a),
416.974(a)(1), (b)(3)(ii). Furthermore, Eyre offered no evidence to rebut the ALJ’s
reasonable determination that she had engaged in substantial gainful activity as a
kitchen helper and a hotel housekeeper. See Barnes, 932 F.2d at 1359.
Substantial evidence supports the ALJ’s determination. The ALJ properly
found that Eyre’s kitchen helper and hotel housekeeping jobs were past relevant
work. See Moore, 405 F.3d at 1211; see also 20 C.F.R. §§ 404.1520(a)(4)(iv),
404.1560(b)(1), 416.920(a)(4)(iv), 416.960(b)(1).
AFFIRMED.
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