Antonio N. Adamo v. Commissioner Social Security ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-13775 ELEVENTH CIRCUIT
FEBRUARY 12, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 07-00750-CV-FTM-34DNF
ANTONIO N. ADAMO,
Plaintiff-Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(February 12, 2010)
Before CARNES, BARKETT and MARCUS, Circuit Judges.
PER CURIAM:
Antonio N. Adamo appeals the Commissioner’s denial of his application for
disability insurance benefits, 42 U.S.C. § 405. Adamo’s application was based on
chronic leg and lower-back pain caused by herniated disks in his lumbar spine. He
raises three issues on appeal.1 First, Adamo contends that the Administrative Law
Judge (ALJ) improperly rejected the opinions of Dr. Miller, his treating pain
specialist, and Dr. Buonanno, his consulting orthopedist. Second, Adamo argues
that his past relevant work as owner/superintendent of a construction company
included some tasks involving very heavy labor, so the ALJ erred in concluding
that his past relevant work was best classified as a “construction superintendent”
job involving only light exertion. Finally, he argues that the ALJ incorrectly found
incredible his subjective complaints about the intensity, pervasiveness, and limiting
effects of his symptoms.
I.
Where the ALJ denies benefits and the Appeals Council denies review of
that decision, we review the decision of the ALJ as the Commissioner’s final
decision. Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001). We do not
reweigh evidence, decide facts anew, or make credibility findings. Moore v.
Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). Instead, we review the entire
1
Adamo also raises a fourth issue pertaining solely to the ALJ’s alternative finding
regarding Adamo’s ability to perform other, sedentary work. Because we affirm the ALJ’s
primary ruling, we decline to address this issue.
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record to determine whether the decision was supported by substantial evidence.
Id. Substantial evidence is more than a scintilla, Lewis v. Callahan, 125 F.3d 1436,
1440 (11th Cir. 1997), but less than a preponderance, and is “such relevant
evidence as a reasonable person would accept as adequate to support a
conclusion,” Moore, 405 F.3d at 1211. A disability insurance claimant must prove
that he was disabled on or before the last date for which he was insured. Id.II.
The ALJ must state with particularity the weight given different medical
opinions. Sharfarz v. Bowen, 825 F.2d 278, 279 (11th Cir. 1987). The ALJ may
reject any medical opinion if the evidence supports a contrary finding. Id.Nevertheless, a treating physician’s opinion about the nature and severity of a
claimant’s impairment is generally given controlling weight if it is well supported
and is not inconsistent with the other substantial evidence. 20 C.F.R.
§ 404.1527(d)(2). An opinion about whether the claimant is “disabled” or “unable
to work,” the claimant’s residual functional capacity, or the application of
vocational factors can never be given controlling weight, even if offered by a
treating source, but must be taken into consideration. See § 404.1527(e)(1)-(2);
Caulder v. Bowen, 791 F.2d 872, 878 (11th Cir. 1986).
The ALJ must show good cause for failing to accord considerable weight to
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the treating physician’s opinion, Sharfarz, 825 F.2d at 279-80, or for crediting the
opinion of an examining consulting physician over that of a treating physician, see
Lewis, 125 F.3d at 1440-41. This requires the ALJ to articulate clearly his specific
reasons for according less weight to the treating physician’s opinion. Id. at 1440.
If a treating physician is unsure of the accuracy of his findings and statements, the
ALJ is not obliged to defer to his report. Edwards v. Sullivan, 937 F.2d 580, 584
(11th Cir. 1991). An ALJ may show good cause for rejecting a treating physician’s
opinion when that opinion was, for example, conclusory, inconsistent with the
physician’s own records, or not bolstered by the evidence. Lewis, 125 F.3d at
1440.
In this case the ALJ did not reject the entirety of Dr. Miller’s findings and
testimony. Rather, he explicitly considered Dr. Miller’s treatment notes, but
declined to give controlling weight to his sworn oral statement. In particular, the
ALJ noted that his statement regarding the start date of Adamo’s treatment was
ambiguous; his treatment notes, which repeatedly indicated that Adamo’s pain was
managed adequately by medication, conflicted with his statements about the
limiting effects of Adamo’s pain; he had been unable to say whether the pain
would prevent Adamo from performing sedentary work or whether the impairment
would require Adamo to lie down for substantial periods of time during the work
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day; and he had been unclear about whether he had told Adamo that he
recommended use of a cane. The ambiguities in the oral statement and its
inconsistencies with the treatment notes constituted good cause for the ALJ to rely
more heavily on the treatment notes while declining to give controlling weight to
the oral statement.
As to Dr. Buonanno, Adamo did not consult with him until July 2006,
approximately seven months after Adamo’s date last insured. Although the
doctor’s findings were based in part on a September 2004 MRI, they also relied
upon Adamo’s own description of his symptoms and of the side effects of his pain
medications, apparently as of the time of the examination. Dr. Buonanno’s opinion
that Adamo suffered from a total disability and his notes on the severity of
Adamo’s symptoms and side effects conflicted with both Dr. Miller’s notes from
late 2005 and the notes of a third doctor who examined Adamo days before his
date last insured. Thus, substantial evidence supports the ALJ’s decision to reject
Dr. Buonanno’s report in its entirety.
III.
To support a finding that the claimant is able to return to his past relevant
work, the ALJ must consider all the duties of that work and evaluate the claimant’s
ability to perform them in spite of his impairments. Lucas v. Sullivan, 918 F.2d
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1567, 1574 n.3 (11th Cir. 1990). The claimant bears the burden of demonstrating
that he cannot return to his past relevant work. Id. at 1571. If the ALJ finds that
the claimant cannot perform the functional demands and duties of his past job as he
actually performed it, he will consider whether the claimant can perform the
functional demands and duties of the occupation as generally required by
employers throughout the national economy. See Soc. Sec. Ruling 82-61,
available at 1982 WL 31387.
The claimant’s specific prior job might have involved functional demands
and duties significantly in excess of those generally required for such work by
employers in the national economy. See Ruling 82-61. Accordingly, the claimant
must demonstrate an inability to return to his previous kind of work, not simply an
inability to perform a specific prior job. Jackson v. Bowen, 801 F.2d 1291, 1293
(11th Cir. 1986) (discussing 20 C.F.R. §§ 404.1520(e), 416.920(e)); see Ruling 82-
61.
Here, the vocational expert considered all of the record evidence before
testifying that Adamo had worked as a “construction superintendent” and that such
work involves light exertion. Adamo indicated that he had also performed various
laborer tasks, but that he did so because he was also the owner of the business, not
because those tasks generally are required in construction-superintendent jobs.
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Thus, he did not meet his burden of demonstrating that he would be unable to
return to the occupation of “construction superintendent” as it generally is
performed in the national economy. Substantial evidence supports the ALJ’s
finding that Adamo’s past relevant work involved light exertion.
IV.
When a claimant seeks to establish his disability through his testimony of
pain or other symptoms, the ALJ must apply the “pain standard.” Wilson v.
Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002). The pain standard states that
subjective testimony must be supported by two showings: “(1) evidence of an
underlying medical condition; and (2) either (a) objective medical evidence
confirming the severity of the alleged pain; or (b) that the objectively determined
medical condition can reasonably be expected to give rise to the claimed pain.” Id.If the record shows that the claimant has “a medically determinable
impairment[] that could reasonably be expected to produce [his] symptoms, such as
pain, [the ALJ] must then evaluate the intensity and persistence of [the] symptoms
so that [he] can determine how [the] symptoms limit [the claimant’s] capacity for
work.” 20 C.F.R. § 404.1529(c)(1). In making this evaluation, the ALJ considers
all of the record evidence, including the objective medical evidence, the claimant’s
history, and statements by the claimant and his doctors. See id. The ALJ also
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considers factors such as the claimant’s daily activities, the effectiveness and side
effects of his medications, precipitating and aggravating factors, and other
treatments and measures taken to relieve the symptoms. § 404.1529(c)(3).
If the ALJ decides not to credit a claimant’s subjective testimony about his
pain, “he must articulate explicit and adequate reasons for doing so.” Foote v.
Chater, 67 F.3d 1553, 1561-62 (11th Cir. 1995). Here, the ALJ found that Adamo
had impairments that reasonably could have been expected to produce his alleged
symptoms, but that his statements about the intensity, persistence, and limiting
effects of those symptoms were not credible. In particular, he noted that Adamo’s
claim of debilitating side effects of the medication conflicted with Dr. Miller’s note
that he was experiencing no side effects, and that Dr. Miller found the pain to have
been managed adequately by medication. He also correctly noted that one of Dr.
Miller’s treatment notes had identified driving as an aggravating factor, yet Adamo
testified that the still drove short distances on occasion and that the only reason he
refrained from driving long distances was because he worried that his medication
would cause drowsiness. The ALJ’s finding that Adamo was able to “assess[] and
look[] at properties” for his various real estate investments is supported by
Adamo’s own testimony that he travels to Rhode Island “to see [his] family once in
a while, and to look at different properties.” Finally, Adamo had taken a four to
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five day trip to Rhode Island by himself in the past year, despite his allegation that
he was completely dependent upon his wife for help with daily activities.
The ALJ’s decision indicates that he considered the relevant factors, see
§ 404.1529(c)(1), (3), and had explicit and adequate reasons for discrediting
Adamo’s testimony about the intensity and limiting nature of his symptoms, see
Foote, 67 F.3d at 1561-62. The record as a whole contains substantial evidence
supporting the ALJ’s credibility determination. See Moore, 405 F.3d at 1211.
Upon careful review of the record and consideration of the parties’ briefs,
we affirm the Commissioner’s decision to deny Adamo’s application for benefits.
AFFIRMED.
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