Angela Moreno v. Comm. Michael J. Astrue , 366 F. App'x 23 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-13221 ELEVENTH CIRCUIT
FEBRUARY 12, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 08-60179-CV-WJZ
ANGELA MORENO,
Plaintiff-Appellant,
versus
COMMISSIONER MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(February 12, 2010)
Before CARNES, BARKETT and ANDERSON, Circuit Judges.
PER CURIAM:
Angela Moreno appeals the district court’s order affirming the
Administrative Law Judge’s (“ALJ”) denial of her 2003 application for disability
insurance benefits (“DIB”), 42 U.S.C. § 405(g), due to, inter alia, diabetes and
vision problems.
Notably, Moreno filed a prior application for a period of disability and DIB
on May 18, 1998. This application was denied on November 21, 2001, after a
hearing before an ALJ. In his 2001 decision, the ALJ found that Moreno had
severe impairments including diabetes mellitus, generalized arthritis, peripheral
vascular disease, varicose veins, and hypertension. He further determined that she
retained a residual functional capacity (“RFC”) (1) to lift and/or carry and push
and/or pull 20 pounds occasionally and 10 pounds frequently; (2) to stand a total of
2 hours, walk a total of 2 hours, and sit a total of 6 hours in an 8-hour work day,
with a sit-stand option at 30 minute intervals; (4) to occasionally climb stairs, bend,
kneel, crouch, and stoop; and (5) that required her to avoid hazardous machinery
and extreme temperatures. The ALJ concluded that Moreno retained the ability to
perform her past relevant work as an office clerk and, thus, was not disabled under
the Social Security Act (“Act”).
Moreno filed her current application for a period of disability and DIB on
February 13, 2003, and she alleged a disability onset date of November 2, 2001.
On June 8, 2004, after a hearing, the ALJ denied Moreno’s application. In doing
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so, he found Moreno was not disabled within the meaning of the Act for the period
of November 2, 2001, through December 31, 2001, the date Moreno’s insured
status expired. More specifically, the ALJ found that Moreno had no impairment
or combination of impairments that were severe on or before December 31, 2001,
and, thus, could return to her past relevant work. The Appeals Council vacated the
ALJ’s 2004 order and remanded the case because the period from November 2,
2001, through November 21, 2001, had been adjudicated in the 2001 decision and,
although the 2001 and 2004 hearings concerned essentially the same time period,
the conclusions reached in the hearings lacked conformity. On remand, the
Appeals Council instructed the ALJ to consider the period commencing November
22, 2001, and any pertinent information from the 1998 application. There is no
dispute that the period at issue in Moreno’s 2003 application is November 21,
2001, through December 31, 2001.
After a supplemental hearing, the ALJ denied Moreno’s 2003 application.
The ALJ found that Moreno’s diabetes mellitus with retinopathy and status post
cataracts were severe impairments, which caused significant vocationally relevant
limitations, but did not preclude her from performing her past relevant work. In
addition, he found that she retained an RFC that differed from the 2001 RFC in
three respects: Moreno (1) had unlimited ability to perform pushing or pulling;
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(2) could stand or walk for six hours of an eight-hour work day; but (3) required a
sit-stand option at one-hour alternating intervals. The ALJ concluded that,
notwithstanding her limitations, Moreno retained the capacity to perform her past
relevant work and, thus, was not disabled under the Act.
On appeal, Moreno argues that ALJ erred in failing to apply the doctrine of
administrative res judicata to the first assessment of her RFC. She further argues
that the district court erred in affirming the ALJ’s decision based on reasons
independent of those the ALJ relied on to deny her DIB application and in failing
to describe the purpose of administrative res judicata accurately. Finally, she
argues that substantial evidence does not support the ALJ’s finding that she could
perform her past relevant work. To this end, she challenges the (A) the ALJ’s
evaluation of her subjective complaints of vision impairments caused by her
uncontrolled diabetes mellitus; (B) the ALJ’s finding that her severe impairments
of diabetes mellitus with retinopathy and status post cataracts did not preclude her
from performing her past relevant work as an office clerk; and (C) the sufficiency
of a hypothetical posed to the vocational expert (“VE”).1
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While Moreno also argues that we should apply a more exacting standard of review
with respect to this claim, we decline to consider her argument in this regard because she raises
it for the first time in her reply brief. Access Now, Inc. v. Southwest Airlines Co., 385 F.3d
1324, 1330 (11th Cir. 2004)
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I.
Moreno argues that the ALJ should have given preclusive effect to her 2001
RFC assessment. 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). The Commissioner’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.” Keeton v. Dep’t of
Health and Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994).
The Social Security Act directs that “[t]he findings and decision of the
Commissioner . . . after a hearing shall be binding upon all individuals who were
parties to such hearing.” 42 U.S.C. § 405(h). However, the Act also gives the
Commissioner the authority to
make rules and regulations and to establish procedures, not
inconsistent with the provisions of this subchapter, which are
necessary or appropriate to carry out such provisions, and shall adopt
reasonable and proper rules and regulations to regulate and provide
for the nature and extent of the proofs and evidence and the method of
taking and furnishing the same in order to establish the right to
benefits hereunder.
42 U.S.C. § 405(a). In accordance with the Act, the Commissioner’s regulations
direct that administrative res judicata applies when the agency has made a previous
final decision “about [a claimant’s] rights on the same facts and on the same issue
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or issues.” 20 C.F.R. § 404.957(c)(1); see also Cash v. Barnhart, 327 F.3d 1252,
1255 (11th Cir. 2003).
Here, however, Moreno’s instant application concerned an unadjudicated
time period. Thus, the ALJ did not err in declining to give preclusive effect to the
2001 RFC assessment. Accordingly, we affirm as to this issue.
II.
Moreno next challenges the magistrate’s rationale, adopted by the district
court, for affirming the ALJ’s denial of her 2003 application. In Social Security
appeals, we review only the decision of an ALJ as the Commissioner’s final
decision when the ALJ denies benefits and the Appeals Council denies review of
the ALJ’s decision. Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001).
Thus, we find no merit to this argument.
III.
Moreno argues that substantial evidence does not support the ALJ’s finding
that her severe impairments did not preclude her from performing her past relevant
work . To this end, Moreno argues that (A) the ALJ erred in failing to apply this
Circuit’s pain standard to her subjective assessment of the limiting effects of her
impairments; (B) substantial evidence demonstrates her entitlement to DIB; and
(C) the ALJ erred in relying on the VE’s response to a hypothetical question that
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did not include her subjective complaints.
We review a Commissioner’s decision to determine whether it is supported
by substantial evidence and whether the proper legal standards were applied.
Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004); 42 U.S.C.
§ 405(g). “Substantial evidence is less than a preponderance, but rather such
relevant evidence as a reasonable person would accept as adequate to support a
conclusion.” Moore, 405 F.3d at 1211. We are precluded from “deciding the facts
anew, making credibility determinations, or re-weighing the evidence.” Id.A. Subjective Complaints of Limitations
When a claimant attempts to establish disability through her own testimony
concerning pain or other subjective symptoms, we apply a three-part “pain
standard,” which requires (1) evidence of an underlying medical condition, and
either (A) objective medical evidence that confirms the severity of the alleged pain
stemming from that condition, or (B) that the objectively determined medical
condition is so severe that it can reasonably be expected to cause the alleged pain.
Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002). “The claimant’s
subjective testimony supported by medical evidence that satisfies the standard is
itself sufficient to support a finding of disability.” Holt v. Sullivan, 921 F.2d 1221,
1223 (11th Cir. 1991).
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“After considering a claimant’s complaints of pain, the ALJ may reject them
as not creditable, and that determination will be reviewed for substantial evidence.”
Marbury v. Sullivan, 957 F.2d 837, 839 (11th Cir. 1992). The ALJ must explicitly
and adequately articulate his reasons if he discredits subjective testimony. Id. “A
clearly articulated credibility finding with substantial supporting evidence in the
record will not be disturbed by a reviewing court.” Foote v. Charter, 67 F.3d
1553, 1562 (11th Cir. 1995); see also Moore, 405 F.3d at 1212 (noting that we
“recognize that credibility determinations are the province of the ALJ”). “The
credibility determination does not need to cite particular phrases or formulations
but it cannot merely be a broad rejection which is not enough to enable . . . this
Court to conclude that the ALJ considered her medical condition as a whole.”
Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005) (quotations and alterations
omitted). When evaluating a claimant’s subjective symptoms, the ALJ must
consider such things as: (1) the claimant’s daily activities; (2) the nature and
intensity of pain and other symptoms; (3) precipitating and aggravating factors;
(4) effects of medications; (5) treatment or measures taken by the claimant for
relief of symptoms; and other factors concerning functional limitations. See 20
C.F.R. § 404.1529(c)(3).
Because the ALJ made a clearly articulated finding that Moreno’s subjective
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complaints were not credible to the degree that she would have been precluded
from all work-related activity during the relevant period and this finding is
supported by substantial evidence, we affirm as to this issue.
B. Ability to Perform Past Relevant Work
The Social Security Regulations outline a five-step process used to
determine whether a claimant is disabled. 20 C.F.R. § 404.1520(a)(4). Under the
first step, the claimant has the burden to show that she is not currently engaged in
substantial gainful activity. Id. § 404.1520(a)(4)(i). Next, the claimant must show
that she has a severe impairment. Id. § 404.1520(a)(4)(ii). She then must attempt
to show that the impairment meets or equals the criteria contained in one of the
Listings of Impairments. Id. § 404.1520(a)(4)(iii). If the claimant cannot meet or
equal the criteria, she must show that she has an impairment which prevents her
from performing her past relevant work. Id. § 404.1520(a)(4)(iv). Once a claimant
establishes that she cannot perform her past relevant work due to some severe
impairment, the burden shifts to the Commissioner to show that significant
numbers of jobs exist in the national economy which the claimant can perform. Id.
§ 404.1520(a)(4)(v); Phillips v. Barnhart, 357 F.3d 1232, 1239 (11th Cir. 2004).
The present inquiry concerns the fourth step of the sequential evaluation
process – whether the substantial evidence supports the ALJ’s finding that Moreno
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could perform her past relevant work. At step four of the sequential evaluation
process, the ALJ assesses the claimant’s RFC and a claimant’s ability to do past
relevant work. See 20 C.F.R. § 404.1520(a)(4)(iv). The RFC is an assessment
based upon all of the relevant evidence of a claimant’s remaining ability to do
work despite her impairments. Lewis, 125 F.3d at 1440 (11th Cir. 1997) (citing 20
C.F.R. § 404.1545(a)). In determining whether a claimant can work, the ALJ
considers the claimant’s RFC, age, education, and work experience. Further, “the
testimony of a treating physician must be given substantial or considerable weight
unless good cause is shown to the contrary.” Id. (quotation omitted). A severe
impairment causes more than “a minimal limitation on a claimant’s ability to
function.” Davis v. Shalala, 985 F.2d 528, 532 (11th Cir. 1993); 20 C.F.R.
§ 416.920(c) (stating a severe impairment “significantly limits [one’s] physical or
mental ability to do basic work activities”). If the evidence is inconsistent, the ALJ
weighs the evidence to reach his decision. 20 C.F.R. § 404.1527(c).
Because substantial evidence supports the ALJ’s finding that Moreno’s
severe impairments of diabetes mellitus with retinopathy and status post cataracts
did not preclude her from performing her past relevant work during the relevant
time period, we affirm as to this issue.
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C. Hypothetical to VE
In order for a VE’s testimony to constitute substantial evidence, the ALJ
must pose a hypothetical question which comprises all of the claimant’s
impairments. Vega v. Comm’r of Social Security, 265 F.3d 1214, 1220 (11th Cir.
2001). However, the ALJ is not required to include findings in the hypothetical
that the ALJ has found to be unsupported. Crawford, 363 F.3d. at 1161.
The ALJ did not err by failing to include Moreno’s subjective symptoms in
his hypothetical to the VE because the ALJ was not required to include limitations
that it found to be unsupported. Accordingly, we affirm in this regard.
Conclusion
Upon review of the record and the parties’ briefs, we find no error.
AFFIRMED.
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