Marcal Fay Harrison v. Commissioner of Social Security

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-15508
Non-Argument Calendar
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D.C. Docket No. 5:12-cv-00348-WTH-PRL
MARCEL FAY HARRISON,
Plaintiff-Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(June 24, 2014)
Before TJOFLAT, MARTIN, and FAY, Circuit Judges.
PER CURIAM:
Marcel Fay Harrison appeals the district court’s order affirming the Social
Security Administration’s (SSA) denial of her application for disability insurance
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benefits. Harrison argues that: (1) the Administrative Law Judge (ALJ) failed to
give proper weight to the opinions of her treating physicians; (2) the ALJ assessed
her residual functional capacity without considering her chronic fatigue syndrome
and fibromyalgia; (3) the ALJ erred in finding that her testimony was not credible;
and (4) the Appeals Council failed to consider new and material evidence that she
submitted. After careful review, we affirm.
I.
We first consider Harrison’s argument that the ALJ erred by choosing not to
give substantial weight to the opinions of Dr. Eleanor Davina-Brown and Dr.
Joseph DeLuca, her treating physicians. Dr. Davina-Brown reported that Harrison
suffered a number of physical limitations relating to her chronic fatigue syndrome,
fibromyalgia, and immunoglobulin G (IgG) deficiency. For example, Dr. Davina-
Brown believed that Harrison was incapable of sitting for more than 15 minutes at
a time and could not lift any objects weighing more than 10 pounds. Dr. Davina-
Brown also predicted that Harrison would need to miss work more than 3 times
each month as a result of her medical impairments. In the same way, Dr. DeLuca
reported that Harrison suffered from bipolar disorder with psychotic features and
delusions. Based on this diagnosis, Dr. DeLuca stated that Harrison was “totally
and permanently disabled and unable to [do] any work-related activities.” The
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ALJ considered both of these opinions but found that they were entitled to little
weight.
“We review the Commissioner’s decision to determine if it is supported by
substantial evidence and based on proper legal standards.” Crawford v. Comm’r of
Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004) (per curiam) (quotation marks
omitted). “Substantial evidence is more than a scintilla and is such relevant
evidence as a reasonable person would accept as adequate to support a
conclusion.” Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997). “If the
Commissioner’s decision is supported by substantial evidence, this Court must
affirm, even if the proof preponderates against it.” Dyer v. Barnhart, 395 F.3d
1206, 1210 (11th Cir. 2005) (per curiam) (quotation marks omitted). We may not
decide facts anew, reweigh the evidence, or substitute our judgment for that of the
Commissioner. Id.
The ALJ must give “substantial weight” to the opinion of a treating
physician “unless good cause exists for not heeding the treating physician’s
diagnosis.” Edwards v. Sullivan, 937 F.2d 580, 583 (11th Cir. 1991). We have
held that good cause exists when: (1) the treating physician’s opinion was not
bolstered by the evidence; (2) the evidence supported a contrary finding; or (3) the
treating physician’s opinion was conclusory or inconsistent with the doctor’s own
medical records. Phillips v. Barnhart, 357 F.3d 1232, 1241 (11th Cir. 2004); see
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also 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2) (providing that the medical
opinion of a treating source is entitled to controlling weight if it “is well-supported
by medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence” in the record). Also, an ALJ does
not need to give a treating physician’s opinion considerable weight if the
claimant’s own testimony regarding her daily activities contradicts that opinion.
See Phillips, 357 F.3d at 1241. Generally, the more consistent a physician’s
opinion is with the record as a whole, the more weight an ALJ can place on that
opinion. 20 C.F.R. §§ 404.1527(c)(4), 416.927(c)(4). “[T]he ALJ may reject any
medical opinion if the evidence supports a contrary finding.” Sharfarz v. Bowen,
825 F.2d 278, 280 (11th Cir. 1987) (per curiam).
A.
With these principles in mind, we conclude that substantial evidence
supported the ALJ’s decision to give diminished weight to Dr. Davina-Brown’s
opinions regarding the severity of Harrison’s physical limitations. Indeed, the ALJ
highlighted a number of ways that Dr. Davina-Brown’s opinions were inconsistent
with the record as a whole.
First, the ALJ found that Dr. Davina-Brown’s opinions were unsupported by
her own medical records. It is true that this doctor described Harrison as “totally
and permanently disabled” and consistently diagnosed Harrison with fibromyalgia,
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chronic fatigue syndrome, and IgG deficiency, among other ailments. But her
records contain no indication that Harrison’s ailments were so severe that they
prevented her from maintaining a job. To the contrary, Dr. Davina-Brown’s
physical examinations of Harrison were consistently unremarkable, and she never
found that Harrison suffered from any of the paradigmatic symptoms frequently
associated with the most severe cases of fibromyalgia, such as joint swelling,
synovitis, or tender trigger points. For example, Dr. Davina- Brown prescribed
medications for Harrison’s chronic pain but never recommended more aggressive
treatment, such as visits to the emergency room for pain or trigger point injections.
The conservative and routine nature of Dr. Davina-Brown’s treatment plan
suggests that Harrison’s impairments–while significant–were not so severe that
Harrison could not perform any job duties.
Second, the ALJ also found that Dr. Davina-Brown’s opinions were contrary
to Harrison’s own statements and testimony. For example, Harrison reported that
she lived by herself and generally handled her own personal care, prepared her
own meals, performed household chores, went shopping, drove a vehicle, and took
care of her pets. Harrison also testified at the hearing before the ALJ that she fed
her dogs on a daily basis, did household chores with assistance from neighbors,
and regularly used her computer to play computer games and communicate with
friends. In light of Harrison’s ability to engage in these daily life activities, the
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ALJ was justified in concluding that Harrison would also be able to perform daily
job activities.
Finally, the ALJ found that Dr. Davina-Brown’s opinions could not be
reconciled with the remainder of the clinical and diagnostic evidence in the record.
Dr. James Green and Dr. Efren Baltazar, two state agency physicians, observed
that Harrison had full range of motion in her musculoskeletal system, and her
current physical exams came within normal limits. These doctors also observed
that Harrison was generally well-nourished and well-developed, with a normal gait
and no clubbing, cyanosis, or edema in her extremities. Given these facts, both
doctors estimated that Harrison would be able to sit with normal breaks for a total
of about 6 hours in an 8-hour workday with minimal postural, manipulative, visual,
communicative, or environmental limitations. They also estimated that Harrison
could frequently lift objects up to 25 pounds and occasionally lift weights up to 50
pounds. Based on this record and our deferential standard of review, we cannot
say that the ALJ’s decision was unsupported by substantial evidence.
B.
We also conclude that adequate evidence supported the ALJ’s decision to
give minimal weight to the opinions of Dr. DeLuca, Harrison’s psychiatrist. Like
Dr. Davina-Brown, Dr. DeLuca described Harrison as “totally and permanently
disabled” because she suffered from bipolar disorder with psychotic features such
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as delusions. He did not explain, however, why this diagnosis prevented her from
performing any job-related activities. Additionally, Dr. DeLuca’s records did not
contain any objective findings regarding Harrison’s limitations or examination
results supporting his conclusions. Because of this lack of evidentiary support, the
ALJ was not required to give great weight to Dr. DeLuca’s conclusory statements
regarding Harrison’s ability to work. See Phillips, 357 F.3d at 1241 (noting that
good cause exists for not heeding a treating physician’s opinions when they are
conclusory).
Beyond that, Dr. DeLuca’s opinions were not entitled to great weight in light
of the other diagnostic and clinical evidence in the record regarding Harrison’s
mental capabilities and limitations. For example, state agency psychologist Dr.
Steven Abraham drafted a detailed report after conducting a consultative
evaluation of Harrison. In his report, Dr. Abraham found that Harrison suffered
from Dysthymic Disorder and Panic Disorder without Agoraphobia. But he also
stated that Harrison did not suffer from any manic episodes, psychotic symptoms,
or hallucinations, and he generally found that Harrison was able to understand
questions, follow commands, and access her short-term and long-term memory.
Based on these observations, Dr. Arthur Hamlin and Dr. James Mendelson both
predicted that Harrison would only have mild limitations in her ability to maintain
social functioning, concentration, persistence, or pace in a workplace setting. As a
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result, substantial evidence supported the ALJ’s decision to give Dr. DeLuca’s
opinions minimal weight.
C.
Harrison responds that the ALJ had a duty to contact Dr. DeLuca to obtain
further clarification because his treatment notes were scarce and largely illegible.
In support of this argument, Harrison points to 20 C.F.R. § 404.1512(e) (eff. Aug.
1, 2006, to June 12, 2011), which required the ALJ to obtain additional information
“[w]hen the evidence . . . from [the] treating physician . . . is inadequate for us to
determine whether [the claimant is] disabled.” See also 61 Fed. Reg. 34471-01,
34474 (July 2, 1996) (“[I]f the evidence does not support a treating source’s
opinion on any issue reserved to the Commissioner and the adjudicator cannot
ascertain the basis of the opinion from the case record, the adjudicator must make
‘every reasonable effort’ to recontact the source for clarification of the reasons for
the opinion.”).
“It is well-established that the ALJ has a basic duty to develop a full and fair
record.” Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003) (per curiam).
“This special duty requires the ALJ to scrupulously and conscientiously probe into,
inquire of, and explore for all the relevant facts and to be especially diligent in
ensuring that favorable as well as unfavorable facts and circumstances are
elicited.” Graham v. Apfel, 129 F.3d 1420, 1423 (11th Cir. 1997) (per curiam)
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(quotation marks omitted). “However, there must be a showing of prejudice before
it is found 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.” Id. “The court should be guided by whether the record reveals
evidentiary gaps which result in unfairness or clear prejudice.” Id. (quotation
marks omitted).
Harrison’s argument misses the mark because she does not show how the
ALJ’s failure to contact Dr. DeLuca resulted in an unfair proceeding or clear
prejudice. The ALJ did not find evidentiary gaps in the record that thwarted its
ability to make a conclusive determination regarding Harrison’s disability status.
To the contrary, the record reflects that the ALJ analyzed more than 500 pages of
records, including Dr. DeLuca’s progress reports, a mental health examination
report from Dr. Abraham, and two psychiatric review reports from Dr. Hamlin and
Dr. Mendelson. Further, the ALJ gave no indication of any difficulties
ascertaining the basis for Dr. DeLuca’s opinions because his records were illegible
or for any other reason. In fact, Dr. DeLuca issued a typed statement indicating
that his opinions were based on a diagnosis that Harrison suffered from bipolar
disorder with psychotic features, as manifest by delusions. The ALJ, however,
found that this conclusory opinion could not be reconciled with the remainder of
the evidence in the record. Without any demonstration that the record was
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inadequate or led to unfairness or clear prejudice, we cannot say that the ALJ
committed reversible error by choosing not to contact Dr. DeLuca for additional
information.
II.
We next consider Harrison’s argument that the ALJ failed to properly
consider how her fibromyalgia and chronic fatigue syndrome affected her residual
functional capacity. Harrison emphasizes that her treating physicians consistently
diagnosed her with fibromyalgia and chronic fatigue syndrome, and she regularly
told her doctors that she felt tired, fatigued, rundown, and lousy overall. Harrison
also points to her testimony before the ALJ, where she stated that she could not sit,
walk, or concentrate for an extended period of time due to her daily fatigue, pain,
nausea, numbness, and fogginess. Because these facts all weigh in favor of a
finding that Harrison is disabled, she argues that the ALJ did not meaningfully
account for the severity of her fibromyalgia and chronic fatigue syndrome in
arriving at the opposite conclusion.
Harrison’s argument must overcome a deferential standard of review in
order to succeed at this stage in the proceedings. As we have said, 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 (quotation marks omitted).
“If the Commissioner’s decision is supported by substantial evidence, this Court
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must affirm, even if the proof preponderates against it.” Dyer, 395 F.3d at 1210.
At this stage, we cannot reweigh the evidence, find facts anew, or substitute our
judgment for the ALJ’s conclusions. Id.
Given this deferential standard of review, we cannot say that the ALJ’s
decision was unsupported by substantial evidence. The ALJ accepted Harrison’s
diagnosis of fibromyalgia and chronic fatigue syndrome, and also found that these
impairments affected Harrison’s ability to work. After carefully reviewing the
entirety of the record, however, the ALJ concluded that the medical evidence did
not support Harrison’s claims that her ailments prevented her from working
altogether. For example, the ALJ found that Harrison had not sought or required
any hospital visits or emergency medical care in the previous year, suggesting that
her symptoms could be managed with essentially routine and conservative medical
treatment. The ALJ further observed that Harrison continued to handle her
personal care, prepare meals, perform household chores, go shopping, drive a
vehicle, care for two dogs and a cat, watch television, use a personal computer, and
visit with friends and neighbors, even after the onset date of her ailments. As a
result, we conclude that the ALJ’s disability determination was supported by
substantial evidence, even though there certainly was ample evidence supporting a
contrary conclusion.
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III.
Harrison next argues that the ALJ failed to articulate specific and adequate
reasons explaining its decision not to credit her testimony. For example, the ALJ’s
order set out that Harrison’s testimony regarding her alleged pain and functional
limitations was not wholly credible. Harrison contends that this conclusion was
not supported by substantial evidence in the record.
“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) (per curiam).
The ALJ must explicitly and adequately articulate his reasons if he discredits
subjective testimony. Id. When evaluating a claimant’s subjective symptoms, the
ALJ must consider: (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; and (5) treatment or measures taken by the claimant for relief of
symptoms. See 20 C.F.R. § 404.1529(c)(3).
Against this legal backdrop, we conclude that the ALJ committed no error in
finding that Harrison’s testimony was not credible. As we have said, the ALJ
found substantial evidence in the record suggesting that Harrison’s functional
limitations were not as severe as she or her treating physicians alleged. See supra,
sections I, II. Given this substantial evidence, the ALJ was justified in not
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crediting Harrison’s testimony regarding the severity of her symptoms and
limitations. Beyond that, the ALJ also found numerous inconsistencies between
Harrison’s subjective complaints and the objective findings in the record. For
example, Harrison testified that her IgG deficiency meant that she had the immune
system of a two or three year-old and was prone to get sick frequently. Yet the
ALJ found no records of hospital visits in the previous year based on these sudden
bouts of illness. Also, Harrison first testified that she spent the vast majority of her
time laying down or napping. She later testified, however, that she used her
computer nearly every day to communicate with friends and play computer games,
and the ALJ found that these activities likely took much longer than the 5 or 10
minutes a day that she estimated. Finally, the ALJ also found that Harrison’s
financial situation was likely not dire if she could maintain cable television and
internet service. Based on these inconsistencies between her testimony and the
other evidence in the record, the ALJ did not err in finding that Harrison’s
testimony was not credible.
IV.
Finally, Harrison argues that the Appeals Council erred when it denied her
request for review without properly considering the new and material evidence that
she submitted to the Council. After the ALJ denied her application for disability
benefits, Harrison sought review from the Appeals Council. She also submitted a
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Mental Impairment Questionnaire completed by Dr. DeLuca, along with additional
treatment notes. The Appeals Council, however, denied review after considering
the additional evidence. According to Harrison, the Appeals Council should have
granted review of the ALJ’s decision because there is a reasonable probability that
the new evidence would have changed the administrative outcome.
The Appeals Council must consider new and material evidence and must
review the case if the ALJ’s decision is contrary to the weight of the evidence
currently of record. 20 C.F.R. § 404.970(b); see also Keeton v. Dep’t of Health &
Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994). When a claimant properly
presents new evidence to the Appeals Council and it denies review, we essentially
consider the claimant’s evidence anew to determine whether “that new evidence
renders the denial of benefits erroneous.” Ingram v. Comm’r of Soc. Sec. Admin.,
496 F.3d 1253, 1262 (11th Cir. 2007).
The Appeals Council did not err in refusing to remand to the ALJ based on
the new evidence Harrison submitted. First, Dr. DeLuca’s opinions in his
questionnaire are conclusory and do not explain in any detail the reasons for his
opinions. In the clinical findings section of the questionnaire, for example, Dr.
Deluca simply asserts that Harrison suffers from severe mood swings with
psychotic features, which is no different from earlier records that the ALJ found
conclusory. In the same way, Harrison does not show how the extra treatment
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notes from Dr. DeLuca change the weight of the evidence in her favor. Rather,
these additional records appear to be cumulative with previous treatment notes that
were already considered by the ALJ. As a result, the Appeals Council did not err
in denying review to Harrison, even in light of the new evidence that she
submitted. 1
V.
For these reasons, we affirm the district court’s order affirming the SSA’s
denial of Harrison’s application for disability insurance benefits.
AFFIRMED.
1
To the extent that Harrison argues that the Appeals Council is required to provide a detailed
explanation for why it declined review in light of the new evidence, this argument is unavailing.
Nothing requires the Appeals Council to further explain its denial of review, and it is up to us to
consider the evidence anew to determine whether the new evidence renders the denial of benefits
erroneous. See Ingram, 496 F.3d at 1262.
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