Kerwick v. Commissioner of Social Security , 154 F. App'x 863 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
NOVEMBER 17, 2005
No. 05-12724
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________
D. C. Docket No. 03-00523-CV-FTM-33-SPC
NATALIE KERWICK,
Plaintiff-Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(November 17, 2005)
Before BIRCH, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
Natalie Kerwick, a 24-year old high school graduate, appeals the district
court’s order affirming the Commissioner’s denial of her application for Childhood
Disability Benefits through deceased wage-earner John Kerwick, pursuant to 42
U.S.C. § 405(g). Kerwick asserts the Administrative Law Judge (ALJ) erred in
failing to accord controlling weight to Dr. John B. Mulliken’s opinion. We affirm.
I. DISCUSSION
We must determine whether the Commissioner’s decision 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). “‘Substantial evidence is . . .
such relevant evidence as a reasonable person would accept as adequate to support
a conclusion.’” Id. (citation omitted). “‘Even if the evidence preponderates
against the Commissioner’s findings, we must affirm if the decision reached is
supported by substantial evidence.’” Id. at 1158–59 (citation omitted). We
“review de novo the legal principles upon which the Commissioner’s decision is
based.” Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005).
A claimant bears the burden of establishing disability. Jones v. Apfel, 190
F.3d 1224, 1228 (11th Cir. 1999). Social security regulations provide a five-step
sequential process to evaluate whether a claimant has proven she is disabled. See
20 C.F.R. § 416.920(a). At the fourth step, the ALJ makes a determination of the
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claimant’s Residual Functional Capacity by considering the claimant’s ability to
sit, stand, walk, lift, carry, push, pull, reach, handle, stoop, crouch, and other work-
related physical demands. Id. § 404.1545(b).
Social security regulations also provide guidelines for the ALJ to use when
evaluating medical opinion evidence. Id. § 404.1527. The ALJ considers many
factors when weighing medical opinions, 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. Id. § 404.1527(d). In
social security disability benefits cases, generally, the opinions of examining
physicians are given more weight than non-examining physicians, the opinions of
treating physicians are given more weight than non-treating physicians, and the
opinions of specialists (on issues within their areas of expertise) are given more
weight than non-specialists. See § 404.1527(d)(1)–(2), (5).
A treating physician’s testimony “‘must be given substantial or considerable
weight unless good cause is shown to the contrary.’” Crawford, 363 F.3d at 1159(citation omitted). We have “concluded ‘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 physician’s opinion was conclusory or inconsistent
with the doctor’s own medical records.” Phillips v. Barnhart, 357 F.3d 1232,
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1240–41 (11th Cir. 2004). An ALJ does not need to give a treating physician’s
opinion considerable weight if the claimant’s own testimony regarding her daily
activities contradicts that opinion. Id. at 1241. However, the ALJ must clearly
articulate reasons for giving less weight to the treating physician’s opinion.
Phillips, 357 F.3d at 1241.
Additionally, the opinion of a specialist is generally entitled to more weight
than the opinions of other non-specialists. See 20 C.F.R. § 404.1527(d)(5).
However, the ALJ must “always consider the medical opinions in [the] case record
together with the rest of the relevant evidence . . . receive[d].” Id. § 404.1527(b).
While specialists “generally” are entitled to more weight, when there are internal
inconsistencies, the specialist’s opinion deserves less deference. See Guilliams v.
Barnhart, 393 F.3d 798, 803 (8th Cir. 2005).
The ALJ accorded little weight to the opinion of Dr. Mulliken, a treating
physician and a specialist, finding Dr. Mulliken’s opinion was inconsistent with the
weight of the record in its entirety. Substantial evidence supports this conclusion.
The ALJ noted Dr. Mulliken opined Kerwin could (1) sit for three hours; (2) stand
or walk for 2 hours; (3) occasionally lift up to 20 pounds; (4) grasp, push, and pull
with no limitation; and (5) bend and squat, but not crawl or climb or use her feet
repetitively. The ALJ pointed out Dr. Mulliken’s opinion Kerwick could not sit for
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more than three hours or stand for more than two hours is contradicted by
Kerwick’s high school attendance, where she sat for nearly seven hours a day, and
past employment, where she worked eight hours a day. In high school, Kerwick
sat in a classroom 42 minutes of every hour, 7 times a day, 5 days a week.
Kerwick was active while working in child care, sitting and standing eight hours a
day. Also, she successfully performed clerical work at her uncle’s office for a
month.
Dr. Mulliken’s opinion is also inconsistent with other medical opinions in
the record. The ALJ examined evidence from multiple medical sources—Dr.
Woletsky, a treating pediatrician who saw Kerwick about four or five times per
year; Dr Seo, a consulting physician; Dr. Smith, a consulting orthopedic surgeon;
and Dr. Buonocore, a state agency medical consultant. Evidence from these
sources support a finding Kerwick is able to sit without difficulty for up to six
hours.
Further, Dr. Mulliken’s opinion is inconsistent with Kerwick’s own
testimony. Kerwick acknowledged she could sit for a couple of hours, then stand
for an hour. Kerwick testified she could drive a car, and help cook and clean at
home. Also, in the past, Kerwick participated in a gym class and in the Special
Olympics.
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II. CONCLUSION
In sum, the ALJ articulated several reasons for giving less weight to Dr.
Mulliken’s opinion. Thus, we conclude the ALJ’s determination that Dr.
Mulliken’s opinion should be given little weight is supported by substantial
evidence.
AFFIRMED.
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