Christina M. Sanchez v. Commissioner of Social Security , 507 F. App'x 855 ( 2013 )


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  •            Case: 12-11762   Date Filed: 02/08/2013   Page: 1 of 10
    [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 12-11762
    Non-Argument Calendar
    ________________________
    D.C. Docket No. 2:11-cv-00118-CSC
    CHRISTINA M. SANCHEZ,
    Plaintiff - Appellant,
    versus
    COMMISSIONER OF SOCIAL SECURITY,
    Defendant - Appellee.
    ________________________
    Appeal from the United States District Court
    for the Middle District of Alabama
    ________________________
    (February 8, 2013)
    Before HULL, WILSON and JORDAN, Circuit Judges.
    PER CURIAM:
    Case: 12-11762       Date Filed: 02/08/2013       Page: 2 of 10
    Christina M. Sanchez, through counsel, appeals from the district court’s
    order affirming the Administrative Law Judge’s (ALJ) denial of disability
    insurance benefits (DIB), 
    42 U.S.C. §§ 401
    –434, and supplemental security
    income (SSI), 
    42 U.S.C. §§ 1381
    –1383f, pursuant to 
    42 U.S.C. §§ 405
    (g) and
    1383(c)(3). On appeal, Sanchez argues that the ALJ erroneously failed to consider
    her diagnosis of Borderline Personality Disorder (BPD) in the analysis and, in
    particular, failed to identify BPD as a severe impairment at step two of the
    sequential evaluation. 1
    In Social Security appeals, we review the Commissioner’s decision to
    determine if it is supported by substantial evidence and based on proper legal
    standards. Crawford v. Comm’r of Soc. Sec., 
    363 F.3d 1155
    , 1158 (11th Cir. 2004)
    (per curiam) (citing Lewis v. Callahan, 
    125 F.3d 1436
    , 1439 (11th Cir. 1997)).
    “Substantial evidence is more than a scintilla and is such relevant evidence as a
    reasonable person would accept as adequate to support a conclusion.” Winschel v.
    Comm’r of Soc. Sec., 
    631 F.3d 1176
    , 1178 (11th Cir. 2011) (citation and internal
    1
    Notably, Sanchez has not explicitly challenged the weight given to the medical opinions
    by the ALJ, nor the ALJ’s credibility determination. Sanchez also has not expressly challenged
    the ALJ’s ultimate decision that, because Sanchez would not be disabled if she stopped her
    substance use, her substance use disorder was a contributing factor material to the disability
    determination. See 
    42 U.S.C. §§ 423
    (d)(2)(C), 1382c(a)(3)(J); 
    20 C.F.R. §§ 404.1535
    , 416.935;
    see also Doughty v. Apfel, 
    245 F.3d 1274
    , 1281 (11th Cir. 2001) (“[T]he claimant bears the
    burden of proving that the substance abuse is not a contributing factor material to the disability
    determination.”). As a result, Sanchez has effectively abandoned any challenge to these
    decisions. See Access Now, Inc. v. Sw. Airlines Co., 
    385 F.3d 1324
    , 1330 (11th Cir. 2004) (“[A]
    legal claim or argument that has not been briefed before the court is deemed abandoned and its
    merits will not be addressed.”).
    2
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    quotation marks omitted). “We may not decide the facts anew, reweigh the
    evidence, or substitute our judgment for that of the Commissioner.” 
    Id.
     (citation
    omitted). Even if a preponderance of the evidence weighs against the
    Commissioner’s decision, we must affirm if substantial evidence supports it.
    Sewell v. Bowen, 
    792 F.2d 1065
    , 1067 (11th Cir. 1986).
    We have also declined to remand for express findings when doing so would
    be a “wasteful corrective exercise” in light of the evidence of record and when no
    further findings could be made that would alter the ALJ’s decision. Ware v.
    Schweiker, 
    651 F.2d 408
    , 412–13 (5th Cir. Unit A 1981); see also Diorio v.
    Heckler, 
    721 F.2d 726
    , 728 (11th Cir. 1983) (applying the harmless error doctrine
    to erroneous statements of fact made by the ALJ). On the other hand, the ALJ’s
    “failure to apply the correct law or to provide the reviewing court with sufficient
    reasoning for determining that the proper legal analysis has been conducted
    mandates reversal.” Ingram v. Comm’r of Soc. Sec., 
    496 F.3d 1253
    , 1260 (11th
    Cir. 2007). When the ALJ “fails to ‘state with at least some measure of clarity the
    grounds for his decision,’ we will decline to affirm ‘simply because some rationale
    might have supported the ALJ’s conclusion.’” Winschel, 
    631 F.3d at 1179
    (quoting Owens v. Heckler, 
    748 F.2d 1511
    , 1516 (11th Cir. 1984) (per curiam)).
    “The burden is primarily on the claimant to prove that [s]he is disabled, and
    therefore entitled to receive [social security and disability insurance] benefits.”
    3
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    Doughty v. Apfel, 
    245 F.3d 1274
    , 1278 (11th Cir. 2001). In determining whether a
    claimant has proven that she is disabled, the ALJ must complete a five-step
    sequential evaluation process and determine:
    (1) whether the claimant is currently engaged in substantial gainful
    activity; (2) whether the claimant has a severe impairment or
    combination of impairments; (3) whether the impairment meets or
    equals the severity of the specified impairments in the Listing of
    Impairments; (4) based on a residual functional capacity (“RFC”)
    assessment, whether the claimant can perform any of his or her past
    relevant work despite the impairment; and (5) whether there are
    significant numbers of jobs in the national economy that the claimant
    can perform given the claimant’s RFC, age, education, and work
    experience.
    Winschel, 
    631 F.3d at
    1178 (citing Phillips v. Barnhart, 
    357 F.3d 1232
    , 1237–39
    (11th Cir. 2004)); 
    20 C.F.R. §§404.1520
    (a)(4)(i)–(v), 416.920(a)(4)(i)–(v).
    At step two, the ALJ must make a “threshold inquiry” as to the medical
    severity of the claimant’s impairments. McDaniel v. Bowen, 
    800 F.2d 1026
    , 1031
    (11th Cir. 1986); see 
    20 C.F.R. §§ 404.1520
    (a)(4)(ii), (c), 404.1520a(a), 404.1523,
    416.920(a)(4)(ii), (c), 416.920a(a), 416.923. “[T]he finding of any severe
    impairment, whether or not it qualifies as a disability and whether or not it results
    from a single severe impairment or a combination of impairments that together
    qualify as severe, is enough to satisfy the requirement of step two.” Jamison v.
    Bowen, 
    814 F.2d 585
    , 588 (11th Cir. 1987). An impairment or combination of
    impairments is not severe if it does not significantly limit the claimant’s physical
    or mental ability to do basic work activities, such as the abilities and aptitudes
    4
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    necessary to do most jobs. 
    20 C.F.R. §§ 404.1521
    (a)–(b), 416.921(a)–(b). In other
    words, “[a]n impairment is not severe only if the abnormality is so slight and its
    effect so minimal that it would clearly not be expected to interfere with the
    individual’s ability to work, irrespective of age, education or work experience.”
    McDaniel, 
    800 F.2d at 1031
    ; see Moore v. Barnhart, 
    405 F.3d 1208
    , 1213 n.6
    (11th Cir. 2005) (per curiam) (noting that the mere existence of impairments does
    not reveal the extent to which they limit the claimant’s ability to work). Pertinent
    examples of “basic work activities” include understanding, carrying out, and
    remembering simple instructions; use of judgment; responding appropriately to
    supervision, co-workers, and usual work situations; and dealing with changes in a
    routine work setting. 
    20 C.F.R. §§ 404.1521
    (b), 416.921(b).
    During steps three through five, the ALJ must consider the claimant’s
    medical condition as a whole. Jamison, 
    814 F.2d at 588
    . At step three, if the ALJ
    determines that a claimant is disabled but also makes a finding that substance
    abuse is involved, the ALJ “must determine whether [the claimant’s] drug
    addiction or alcoholism is a contributing factor material to the determination of
    disability.” 
    20 C.F.R. §§ 404.1535
    (a), 416.935(a). The key factor in this inquiry is
    whether the claimant would still qualify as disabled if she stopped using drugs or
    alcohol. 
    20 C.F.R. §§ 404.1535
    (b)(1), 416.935(b)(1). The ALJ must evaluate
    which of the claimant’s physical and mental limitations that supported the original
    5
    Case: 12-11762   Date Filed: 02/08/2013   Page: 6 of 10
    disability determination would remain absent drug or alcohol use. 
    20 C.F.R. §§ 404.1535
    (b)(2), 416.935(b)(2). If a claimant would no longer be disabled if she
    stopped using drugs or alcohol, then the claimant’s substance abuse is considered
    to be a “contributing factor material to the determination of [her] disability,” and
    she has therefore failed to meet her burden and prove that she is disabled. 
    20 C.F.R. §§ 404.1535
    (b)(2)(i), 416.935(b)(2)(i); 
    42 U.S.C. §§ 423
    (d)(2)(C),
    1382c(a)(3)(J).
    Before reaching step four, the ALJ must assess the claimant’s RFC—which
    is the most work the claimant can do despite her physical and mental limitations—
    by considering all of the relevant medical and medically determinable
    impairments, including any such impairments that are not “severe.” 
    20 C.F.R. §§ 404.1520
    (e), 404.1545(a)(1)–(3), 416.920(e), 416.945(a)(1)–(3). In assessing
    the RFC, the ALJ must consider the claimant’s ability to meet the physical, mental,
    sensory, and other requirements of work. 
    20 C.F.R. §§ 404.1545
    (a)(4),
    416.945(a)(4). At step five, the ALJ must pose hypothetical questions, including
    all of the claimant’s impairments and resulting limitations, to a Vocational Expert
    (VE). See Winschel, 
    631 F.3d at 1180
    . If the VE opines that there are jobs in the
    national economy that the claimant can perform, the claimant must prove that she
    is unable to perform those jobs in order to be found disabled. See Phillips, 
    357 F.3d at 1239
    .
    6
    Case: 12-11762       Date Filed: 02/08/2013       Page: 7 of 10
    First and foremost, the ALJ’s determination that Sanchez’s substance abuse
    was a contributing factor material to the determination of her disability—which is
    supported by substantial evidence in the record—was alone sufficient to foreclose
    her disability claim. See 
    42 U.S.C. § 423
    (d)(2)(C), 1382c(a)(3)(J). Although the
    mental health records at Montgomery Mental Health made no mention of
    substance abuse, and Sanchez denied her substance abuse to Dr. Karl Kirkland,
    Sanchez tested positive for opiates, cannabis, cocaine, and benzodiazepine while
    undergoing treatment at Baptist Medical Center South. Sanchez also admitted to
    Dr. Phillip Golomb that she had engaged in daily marijuana use since the age of
    15, and admitted to Dr. Kirkland that she had a cocaine problem in her teen years. 2
    Sanchez even testified that she had smoked marijuana daily since the age of 17,
    and that she used marijuana ten times in the interim period between the initial and
    supplemental ALJ hearings. Moreover, Dr. Doug McKeown opined that if
    Sanchez refrained from the use of illicit drugs, she would have no more than mild
    limitations in her daily functioning.
    Second, even absent the conclusion that Sanchez’s substance abuse was a
    contributing factor material to the determination of her disability, the ALJ’s failure
    to classify Sanchez’s alleged BPD as a severe impairment at step two was a
    2
    Sanchez’s cocaine-positive urinalysis at Baptist Medical Center South suggests that she
    used cocaine as recently as 2007. Sanchez maintains that her cocaine use was not intentional,
    and that the marijuana she smoked prior to the urinalysis must have come into contact with
    cocaine.
    7
    Case: 12-11762       Date Filed: 02/08/2013       Page: 8 of 10
    determination supported by substantial evidence. Sanchez, to the contrary,
    vehemently argues that even if she abstained from substance use, she would still be
    disabled due to the severity of her BPD diagnosis, and therefore the ALJ erred by
    failing to consider this impairment. However, only Dr. Kirkland—out of
    numerous doctors at multiple institutions who examined Sanchez over the course
    of 17 years, since her first hospitalization at the age of 13—ever diagnosed
    Sanchez with BPD.3 All of Sanchez’s other doctors diagnosed her with some
    combination of mood disorder, polysubstance abuse, or bipolar disorder, and all of
    these diagnoses were consistent with the ALJ’s findings.
    Moreover, the Diagnostic and Statistical Manual of Mental Disorders—on
    which Sanchez heavily relies in support of her BPD diagnosis—specifically states
    that BPD “often co-occurs with Mood Disorders,” and warns that “[b]ecause the . .
    . presentation of Borderline Personality Disorder can be mimicked by an episode of
    Mood Disorder, [medical professionals] should avoid giving an additional
    diagnosis of Borderline Personality Disorder . . . without having documented that
    the pattern of behavior has an early onset and a long-standing course.” Am.
    Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders 653 (4th
    ed. text rev. 2000) [hereinafter DSM-IV]. The DSM-IV also specifically states that
    3
    Although Allen Downs, a Mental Health Therapist, diagnosed Sanchez with
    “personality disorder, not otherwise specified, with borderline and dependent features,” he did
    not render an official diagnosis of BPD. Downs is also not a medical doctor.
    8
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    BPD “must also be distinguished from symptoms that may develop in
    association with chronic substance use.” 
    Id. at 654
     (emphasis in original).
    Ultimately, the ALJ’s determination that BPD was not a severe impairment was
    supported by substantial evidence in the record, based on (1) the limited evidence
    of BPD in Sanchez’s medical history, (2) the evidence that any BPD symptoms
    may have actually been caused by mood disorders or substance abuse, and (3)
    evidence that Sanchez “misled [Dr. Kirkland] concerning her substance abuse.”
    Finally, even if the ALJ erred by failing to identify BPD as a severe
    limitation at step two, the ALJ properly considered the symptoms and limitations
    that would result from BPD at the latter stages of the five-step disability
    evaluation. Specifically, after the ALJ listed numerous other severe mental
    impairments at step two, the ALJ acknowledged that Dr. Kirkland diagnosed
    Sanchez with BPD. Moreover, both the ALJ’s RFC assessment and the
    hypothetical questions posed to the VE accounted for all of Sanchez’s mental
    limitations, including any limitations and symptoms that might have been caused
    by or were consistent with BPD. See DSM-IV at 650–52 (listing the diagnostic
    criteria and diagnostic features of BPD). Sanchez has failed to show what
    additional limitations her BPD may have caused, above and beyond the limitations
    manifested by her other severe mental disorders, and how any such limitations
    were independent of her substance abuse. For the foregoing reasons, the ALJ’s
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    Case: 12-11762    Date Filed: 02/08/2013   Page: 10 of 10
    decision that Sanchez was not disabled is supported by substantial evidence in the
    record.
    AFFIRMED.
    10