Robert Bouie v. Michael J. Astrue , 226 F. App'x 892 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MARCH 19, 2007
No. 06-15575 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00092-CV-1-MP-EMT
ROBERT BOUIE,
Plaintiff-Appellant,
versus
MICHAEL J. ASTRUE,
Commissioner of the Social Security
Administration,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(March 19, 2007)
Before ANDERSON, BARKETT and FAY, Circuit Judges.
PER CURIAM:
Robert Bouie appeals the district court’s order affirming the Social Security
Administration’s denial of his application for disability insurance benefits,
42 U.S.C. § 405(g). First, Bouie argues that the Administrative Law Judge
(“ALJ”) erred by posing hypotheticals to the Vocational Expert (“VE”) that did not
accurately depict all of his impairments. Second, Bouie argues that the ALJ erred
by finding that Bouie could work eight hours a day for five days.
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 and is
such relevant evidence as a reasonable person would accept as adequate to support
a conclusion . . . . Even if the evidence preponderates against the [ALJ’s] findings,
we must affirm if the decision reached is supported by substantial evidence.” Id. at
1158-59 (quotation omitted). In conducting this review, we do not reweigh the
evidence or substitute our judgment for that of the ALJ. Martin v. Sullivan,
894 F.2d 1520, 1529 (11th Cir. 1990). “With respect to the [ALJ’s] legal
conclusions, however, our review is de novo. Lewis v. Barnhart, 285 F.3d 1329,
1330 (11th Cir. 2002).
First, Bouie argues that the ALJ erred in posing hypotheticals to the VE
because they did not accurately depict all of Bouie’s impairments. Specifically,
Bouie argues that the hypotheticals did not include the findings of Dr. Russell
Clifton that Bouie had (1) “marked inability to maintain attention and
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concentration for extended periods,” (2) “inability to complete a normal workday
and workweek without interruptions from psychologically based symptoms,” and
(3) “inability to perform at a consistent pace without an unreasonable number and
length of rest periods.” Additionally, Bouie alleges that the hypotheticals failed to
include physical limitations as described by Dr. Bette Boysen and Dr. Jesse
Lipnick.
An ALJ must evaluate the following five criteria in deciding whether a
claimant is entitled to social security disability: (1) “[i]s the individual performing
gainful activity;” (2) “[d]oes [he] have a serious impairment;” (3) “[d]oes [he] have
a serious impairment that meets or equals an impairment specifically listed in
20 C.F.R. part 404, subpart P, appendix 1;” (4) “[c]an [he] perform [his] past
relevant work;” and (5) “[b]ased on [his] age, education, and work experience can
[he] perform work of the sort found in the national economy.” Phillips v.
Barnhart, 357 F.3d 1232, 1237 (11th Cir. 2004). In step 5, the Commissioner has
the burden of proving “there is other work in the national economy the claimant
can perform.” Wolfe v. Chater, 86 F.3d 1072, 1077 (11th Cir. 1996). “Essentially,
the ALJ must determine if there is other work available in significant numbers in
the national economy that the claimant has the ability to perform. If the claimant
can make the adjustment to other work, the ALJ will determine that the claimant is
not disabled. If the claimant cannot make the adjustment to other work, the ALJ
will determine that the claimant is disabled.” Phillips, 357 F.3d at 1239.
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There are two avenues by which the ALJ may determine whether a claimant
has the ability to adjust to other work in the national economy, (1) by applying the
Medical Vocational Guidelines and (2) by using a VE. Phillips, 357 F.3d at 1239-
1240. VE testimony is the preferred method for introducing independent evidence
of the existence of jobs in the national economy that the claimant can perform.
Wilson v. Barnhart, 284 F.3d 1219, 1227 (11th Cir. 2002). “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.” Id.Furthermore, the ALJ must instruct the VE to consider all “severe” impairments
when eliciting testimony. Pendley v. Heckler, 767 F.2d 1561, 1563 (11th Cir.
1985). An ALJ is “not required to include findings in the hypothetical that the ALJ
[has] properly rejected as unsupported.” Crawford, 363 F.3d at 1161. An ALJ
may reject the opinion of any physician when the record supports a contrary
conclusion. Syrock v. Heckler, 764 F.2d 834, 835 (11th Cir. 1985). The resolution
of conflicting evidence is the function of the ALJ, not the Court. Graham v.
Bowen, 790 F.2d 1572, 1575 (11th Cir. 1986).
The record reveals that the ALJ reviewed in detail the extensive medical
records regarding Bouie from the time of his hip replacement in June of 1996 up
through the hearing on August 15, 2001. In questioning Ms. Dee Dee Locascio,
the vocational expert, the ALJ carefully included the limitations described by
Bouie and those of the numerous doctors found to be credible. The hypotheticals
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posed to the VE were complete and probative.
Substantial evidence supports the ALJ’s discrediting Dr. Clifton’s
assessment because the assessment was not supported by his examination report or
Bouie’s testimony. Furthermore, the findings of Dr. Michael Amiel were contrary
to Dr. Clifton’s assessment. Therefore, the ALJ did not need to include
Dr. Clifton’s findings in the hypotheticals.
Furthermore, in formulating Bouie’s residual functioning capacity (“RFC”),
the ALJ’s findings were consistent with the only limitation recommended by
Dr. Boysen, which was that Bouie could perform light duty work. To the extent
that the RFC conflicted with the findings of Dr. Lipnick, the ALJ’s findings were
supported by the reports of other doctors as well as by Bouie’s performance on a
functional capacity evaluation. Because the ALJ posed hypotheticals consistent
with the RFC, which was supported by substantial evidence, the ALJ did not err in
posing the hypotheticals.
Next, Bouie argues that the ALJ erred in finding that he could work eight
hours a day for five days. As discussed above, we review the ALJ’s decision “to
determine if it is supported by substantial evidence and based on proper legal
standards.” Crawford, 363 F.3d at 1158.
The ALJ based this conclusion on the testimony of Doctors Collins, Lipnick
and Lopez. The only doctor who indicated that Bouie could not work an eight hour
day was Dr. Huey. The ALJ specifically explained that she did not give Dr.
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Huey’s testimony much weight because he did not explain his reasons for his
conclusions.
With at least three doctors specifically finding that Bouie was able to work
an eight-hour day, substantial evidence supports the ALJ’s finding.
Upon careful review of the administrative proceedings, the medical record,
the proceedings in the district court, and upon consideration of the parties’ briefs,
we find no error. Substantial evidence supports the ALJ’s formulation of the
hypotheticals and the ALJ’s finding that Bouie could work an eight-hour day.
AFFIRMED.
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