Tina Music Gordon v. Michael J. Astrue ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCTOBER 4, 2007
No. 07-11320 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00008-CV-5
TINA MUSIC GORDON,
Plaintiff-Appellant,
versus
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(October 4, 2007)
Before BLACK, BARKETT and MARCUS, Circuit Judges.
PER CURIAM:
Tina Music Gordon appeals the district court’s order affirming the
Administrative Law Judge’s (“ALJ”) denial of her application for supplemental
security income, 42 U.S.C. § 1383(c)(3). Gordon argues that the ALJ erred in not
reviewing her physical and mental impairments in combination, and therefore his
findings are not supported by substantial evidence. Specifically, she asserts that
the ALJ did not correctly articulate his findings regarding why he discredited the
opinions of Dr. Eaton and another psychologist. Gordon also argues that the ALJ
erred by failing to ask a complete hypothetical question of the vocational expert
(“VE”) that encompassed all of the “uncontradicted limitations” on her ability to
perform work. She further contends that her due process rights were violated
because her counsel was denied the opportunity to pose her desired hypothetical to
the VE.
We review the ALJ’s decision “to determine if it is supported by substantial
evidence and based on proper legal standards.” Crawford v. Comm’r, 363 F.3d
1155, 1158 (11th Cir. 2004). “Substantial evidence is more than a scintilla, but less
than a preponderance. It is such relevant evidence as a reasonable person would
accept as adequate to support a conclusion.” Martin v. Sullivan, 894 F.2d 1520,
1529 (11th Cir. 1990) (citations omitted).
The ALJ uses a five-step evaluation process to determine whether a claimant
is disabled: (1) the disability examiner determines whether the claimant is engaged
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in “substantial gainful activity;” (2) if not, the examiner decides whether the
claimant’s condition or impairment is “severe,” i.e., whether it significantly limits
claimant’s physical or mental ability to do basic work activities; (3) if so, the
examiner decides whether the claimant’s impairment meets or equals the severity
of the specified impairments in the Listing of Impairments, thereby precluding any
gainful work activity; (4) if the claimant has a severe impairment that does not
meet or equal the severity of an impairment in the Listing of Impairments, the
examiner assesses a claimant’s residual functional capacity (“RFC”), which
measures whether a claimant can perform past relevant work despite the
impairment; and (5) if the claimant is unable to do past relevant work, the
examiner determines whether in light of RFC, age, education, and work
experience, the claimant can perform other work in the national economy. See
Phillips v. Barnhart, 357 F.3d 1232, 1237 (11th Cir. 2004).
I. Reviewing Physical and Mental Impairments in Combination
We have stated that “there is no rigid requirement that the ALJ specifically refer to
every piece of evidence in his decision . . .” so long as the decision is sufficient to
allow this Court to conclude that the ALJ considered the claimant’s medical
condition as a whole. Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005).
Where a claimant has alleged several impairments, the ALJ has a duty to consider
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the impairments in combination and to determine whether the combined
impairments render the claimant disabled. Jones v. HHS, 941 F.2d 1529, 1533
(11th Cir. 1991).
The ALJ considers many factors when weighing medical opinions, including
the examining relationship, the treatment relationship, how supported an opinion
is, whether an opinion is consistent with the record, and a doctor’s specialization.
See 20 C.F.R. §§ 404.1527(d)(1)-(6); 416.927(d)(2-6). The ALJ is free to reject
the opinion of any physician when the evidence supports a contrary conclusion.
Sryock v. Heckler, 764 F.2d 834, 835 (11th Cir. 1985). The ALJ must state with
particularity the weight given the different medical opinions and the reasons
therefore, and failure to do so is reversible error. Sharfarz v. Bowen, 825 F.2d 278,
279 (11th Cir. 1987).
Here, the ALJ considered the totality and severity of Gordon’s physical and
psychological limitations by taking into account all symptoms, medical opinions,
and Gordon’s own subjective allegations, which he found to be only partially
credible. Moreover, the ALJ properly noted the evidence on which his conclusion
was based and stated that he gave great weight to the findings and opinions
reflected in Dr. Eaton’s evaluation, which “provided objective proof and a
diagnosis of severe dissimilation on the part of the claimant.” The ALJ concluded
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that the opinion of Dr. Petzelt regarding the four areas of functioning–activities of
daily living, social functioning, concentration, and repeated episodes of
decompensation–was “consistent with the totality of the evidence in this case,” and
was therefore afforded great evidentiary weight as well.
II. Hypothetical Question Posed to Vocational Expert
In order for a vocational expert’s testimony to constitute substantial
evidence, the ALJ must pose a hypothetical question which comprises all of the
claimant's impairments. Vega v. Comm. of Social Security, 265 F.3d 1214, 1220
(11 th Cir. 2001). Importantly, the ALJ is not required to include findings in the
hypothetical that the ALJ has found to be unsupported. Crawford v. Comm. of
Social Security, 363 F.3d 1155, 1161 (11 th Cir. 2004). Thus, the hypothetical need
only include limitations supported by the record. Jones v. Apfel, 190 F.3d 1224,
1229 (11th Cir. 1999).
The fundamental requirement of due process is the opportunity to be heard
“at a meaningful time and in a meaningful manner.” Mathews v. Eldridge, 424
U.S. 319, 333, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976) (quoting Armstrong v. Manzo,
380 U.S. 545, 552, 85 S. Ct. 1187, 1191, 14 L. Ed. 2d 62 (1965)). Regardless of
whether a claimant is represented by counsel, the ALJ “has a duty to develop a full
and fair record.” Brown v. Shalala, 44 F.3d 931, 934 (11th Cir. 1995). We
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previously held that it violates a claimant's right to procedural due process for the
Secretary to deny a claimant benefits based upon post-hearing medical reports
without giving the claimant an opportunity to subpoena and cross-examine the
authors of such reports. Hudson v. Heckler, 755 F.2d 781, 784 (11th Cir.1985).
However, we have indicated that “there must be a showing of prejudice before we
will find that the claimant’s right to due process has been violated to such a degree
that the case must be remanded to the Secretary for further development of the
record.” Brown, 44 F.3d at 935.
The hypothetical questions posed to the vocational expert by the ALJ were
consistent with the medical evidence and other evidence on the record that the ALJ
found to be credible. The hypothetical was a comprehensive summary of the
combination of Gordon’s physical and mental impairments. Moreover, although
the ALJ restricted the phrasing of Gordon’s hypothetical question on cross-
examination of the vocational expert so that the raw medical data would be
expressed in terms of a mental residual functioning capacity, her due process rights
were not violated because she still had a meaningful opportunity for cross-
examination.
Upon careful review of the record on appeal and consideration of the parties’
briefs, we discern no error. Because ALJ properly considered Gordon’s
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combination of impairments and Drs. Eaton and Petzelt’s medical opinions, and
the ALJ posed a complete and accurate hypothetical to the vocational expert
without depriving Gordon of her due process rights, we affirm.
AFFIRMED.
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