Anderson v. Commissioner of Social Security ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 24, 2011
No. 10-12488 JOHN LEY
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 1:08-cv-02765-LTW
PAMELA ANDERSON,
lllllllllllllllllllll Plaintiff-Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
lllllllllllllllllllll Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(May 24, 2011)
Before HULL, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
Pamela Anderson appeals the district court’s order affirming the
Commissioner’s termination of disability insurance benefits under 42 U.S.C.
§ 405(g). First, she argues that the administrative law judge (“ALJ”) erred by
discounting a consulting psychologist’s assessment that Anderson may suffer
concentration lapses due to chronic pain. Second, she argues that the ALJ erred by
adding additional prongs to the pain standard and determining that Anderson’s
complaints of pain were not entirely credible.
We review a decision by the Commissioner of Social Security “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
consists of “such relevant evidence as a reasonable person would accept as
adequate to support a conclusion.” Id. The burden rests with the claimant to
prove that she is disabled and entitled to Social Security benefits. See 20 C.F.R.
§ 404.1512(a).
An ALJ may terminate a claimant’s benefits upon finding that there has
been medical improvement in the claimant’s impairment or combination of
impairments related to the claimant’s ability to work and the claimant is now able
to engage in substantial gainful activity. 42 U.S.C. § 423(f)(1). To determine
whether disability benefits should be terminated, the ALJ must conduct a
multi-step evaluation process and determine:
(1) Whether the claimant is engaging in substantial gainful
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activity;
(2) If not gainfully employed, whether the claimant has an
impairment or combination of impairments which meets or
equals a listing;
(3) If impairments do not meet a listing, whether there has been
medical improvement;
(4) If there has been improvement, whether the improvement is
related to the claimant’s ability to do work;
(5) If there is improvement related to claimant’s ability to do work,
whether an exception to medical improvement applies;
(6) If medical improvement is related to the claimant’s ability to do
work or if one of the first groups of exceptions to medical
improvement applies, whether the claimant has a severe
impairment;
(7) If the claimant has a severe impairment, whether the claimant
can perform past relevant work;
(8) If the claimant cannot perform past relevant work, whether the
claimant can perform other work.
See 20 C.F.R. § 404.1594(f). To determine if there has been medical
improvement, the ALJ must compare the medical evidence supporting the most
recent final decision holding that the claimant is disabled with new medical
evidence. McAulay v. Heckler, 749 F.2d 1500, 1500 (11th Cir. 1985); see 20
C.F.R. § 404.1594(c)(1).
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I. ALJ Discounted Psychologist’s Opinion
Generally, the Commissioner “give[s] more weight to opinions from treating
sources.” 20 C.F.R. § 404.1527(d)(2). With regard to specialists, the
Commissioner “generally give[s] more weight to the opinion of a specialist about
medical issues related to his or her area of specialty than to the opinion of a source
who is not a specialist.” 20 C.F.R. § 404.1527(d)(5).
The ALJ may reject the opinion of any physician when the evidence
supports a contrary conclusion. Bloodsworth v. Heckler, 703 F.2d 1233, 1240
(11th Cir. 1983). We have found good cause to reject the opinions of treating
physicians “where the doctors’ opinions were conclusory or inconsistent with their
own medical records.” Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997).
To determine whether a claimant has the ability to perform work other than
her past relevant work, the ALJ can pose a hypothetical question to a vocational
expert (“VE”) to determine whether someone with the same limitations as the
claimant will be able to secure employment in the national economy. Phillips v.
Barnhart, 357 F.3d 1232, 1240 (11th Cir. 2004). “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.” Jones v. Apfel, 190 F.3d 1224, 1229
(11th Cir. 1999) (citation omitted).
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The psychologist, Dr. Turzo, was not a treating physician of Anderson’s.
Therefore, the ALJ was not required to give her assessment more weight.
Furthermore, pain assessment was not her specialty, and her report was
inconsistent and equivocal. She reported that Anderson’s memory and
concentration were good during the interview and that her concentration during
the testing was adequate. However, without explaining the source of her
speculation, Dr. Turzo stated that Anderson may suffer from concentration lapses,
which contradicted her earlier observations. Additionally, the ALJ need not have
included the concentration lapses in his hypothetical to the VE because Anderson
did not provide sufficient evidence that she suffered from concentration lapses.
Accordingly, the ALJ did not err in discounting the psychologist’s report of
possible concentration lapses and not including them in the hypothetical.
II. The Pain Standard and the Claimant’s Credibility as to Pain
When a claimant seeks to establish disability through her own testimony
regarding pain or other subjective symptoms, we apply a three-part pain standard.
Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991). The pain standard
requires:
(1) evidence of an underlying medical condition and either (2)
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objective medical evidence that confirms the severity of the alleged
pain arising from that condition or (3) that the objectively determined
medical condition is of such a severity that it can be reasonably
expected to give rise to the alleged pain.
Id. “A claimant’s subjective testimony supported by medical evidence that
satisfies the pain standard is itself sufficient to support a finding of disability.”
Foote v. Chater, 67 F.3d 1553, 1561 (11th Cir. 1995). In certain situations, pain
alone can be disabling, even when its existence is unsupported by objective
evidence. Id.“If the ALJ decides not to credit a claimant’s testimony as to her pain, he
must articulate explicit and adequate reasons for doing so.” Id. at 1561-62. “A
clearly articulated credibility finding with substantial supporting evidence in the
record will not be disturbed by a reviewing court.” Id. at 1562.
The ALJ did not create additional hurdles to the pain standard that required
Anderson to objectively prove her limited daily activity; rather, the ALJ merely
indicated that Anderson’s testimony about her allegedly limited activities was
insufficient to prove that she suffered from disabling pain. The ALJ pointed out
that (1) Anderson’s statements about limited daily activities were hard to
objectively verify, and (2) the limited nature of her activities could have been due
to reasons other than pain given the weak medical evidence and other factors
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indicating that Anderson did not suffer from disabling pain.
Additionally, the ALJ did not conclude that Anderson satisfied the pain
standard. The ALJ found “that the claimant’s medically determinable impairment
could have reasonably been expected to produce the alleged symptoms, but that
the claimant’s statements concerning the intensity, persistence and limiting effects
of these symptoms [were] not entirely credible.” The ALJ concluded that
Anderson met the first step of the pain standard – that she had an underlying
medical condition that could give rise to disabling pain – but the evidence did not
show that her condition was severe enough to produce disabling pain. See Holt,
921 F.2d at 1223.
In Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir. 1986), this Court upheld
the rejection of a claimant’s testimony regarding his pain because the testimony
“was not credible to the extent alleged given the medical evidence in the record.”
810 F.2d at 1004. Similarly, here the ALJ found that Anderson’s testimony was
not entirely credible given the weak medical evidence that she suffered from
disabling pain. The ALJ discounted Dr. Elliott’s report because Dr. Elliott seemed
to rely heavily on Anderson’s subjective complaints. The ALJ noted the following
reports from consulting physicians. Dr. Wallace reported that Anderson’s
condition had improved since she was first found disabled, she could stand, walk,
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and sit for 6 hours out of an 8-hour workday, she could lift up to 25 pounds
frequently and 50 pounds occasionally, and she could occasionally crawl. Dr.
Gertier reported the same conclusions as Dr. Wallace with the exception of
manipulative limitations of frequent reaching in all directions, including overhead.
Dr. Gennet found that Anderson did not have any mental impairments. The ALJ
discounted Dr. Turzo’s assessment of concentration deficits as based on
Anderson’s subjective complaints and outside Dr. Turzo’s area of expertise, and
then listed Anderson’s assets conducive to successful employment from Dr.
Turzo’s report: “positive appearance, friendly, cooperative demeanor, intelligence
level, educational experience, work experience to date, voiced motivation and
family support.” Further, the ALJ stated that he was skeptical of the extent of
Anderson’s pain, given that she did not take any prescribed medication. Although
Anderson argues that the ALJ ignored her testimony that she could not afford to
buy pain medication, the ALJ acknowledged but discounted Anderson’s reasoning
when he stated that “[s]he says the cost and she is afraid of getting addicted, and
she has a daughter to raise (12 year old). I find that her overall physical condition
is stable.” Because the ALJ articulated explicit and adequate reasons,
substantially supported by evidence in the record, he did not err in deciding not to
credit Anderson’s testimony as to the extent of her pain. See Foote, 67 F.3d at
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1561-62.
Accordingly, upon review of the record and consideration of the parties’
briefs, we affirm the termination of Anderson’s benefits.
AFFIRMED.
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