Ronnie Lee Brown v. Commissioner of Social Security

Case: 16-11556 Date Filed: 01/25/2017 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-11556
Non-Argument Calendar
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D.C. Docket No. 6:14-cv-02051-CEM-TBS
RONNIE LEE BROWN,
Plaintiff-Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
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Appeal from the United States District Court
for the Middle District of Florida
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(January 25, 2017)
Before ED CARNES, Chief Judge, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
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Ronnie Lee Brown appeals the district court’s order affirming the
Commissioner of the Social Security Administration’s denial of his applications
for social security income and disability insurance benefits. He contends that the
administrative law judge erred by failing to consider his need for supplemental
oxygen in determining his residual functional capacity, and that the ALJ failed to
develop a full and fair record.
When an ALJ denies benefits and the Appeals Council denies review of that
decision, we review the ALJ’s decision as the Commissioner’s final decision.
Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001). We review de novo the
Commissioner’s legal conclusions, and we consider the Commissioner’s factual
findings conclusive if supported by substantial evidence. Lewis v. Barnhart, 285
F.3d 1329, 1330 (11th Cir. 2002). “Substantial evidence is more than a scintilla
and is such relevant evidence as a reasonable person would accept as adequate to
support a conclusion.” Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178
(11th Cir. 2011).
To be eligible for social security income and disability insurance benefits, a
claimant must have a disability. 42 U.S.C. §§ 423(a)(1)(E), 1382(a). An ALJ
must follow the Commissioner’s five-step sequential evaluation to determine
whether a claimant is disabled. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
During the last two steps of the process, an ALJ considers the claimant’s residual
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functional capacity, see id., which is “the most [a claimant] can still do despite
[his] limitations,” id. § 404.1545(a)(1). The ALJ considers medical evidence and
other relevant evidence in the record in making that assessment. Id.
§ 404.1545(a)(3).
Brown argues that the ALJ “failed to account” for his need for supplemental
oxygen in determining his residual functional capacity. Based on the record and
the ALJ’s written decision, it is clear that the ALJ considered his need for oxygen
yet concluded that continuous use of supplemental oxygen was not medically
necessary for Brown. She made that determination based on his medical records
and her finding that Brown’s testimony as to his need for continuous oxygen was
not entirely credible. As a result, it appears that Brown actually takes issue with
the ALJ’s determinations as to his credibility and about his need for supplemental
oxygen.
The record contains adequate evidence to support the ALJ’s conclusion that
Brown did not need to continuously use supplemental oxygen. The ALJ
considered, among other things, his history of noncompliance with recommended
medical care; his treatment records, which indicated stable conditions when he
complied with recommended medical care; the activities he claimed to have
performed while allegedly needing oxygen, such as cutting the grass; and evidence
of his ability to conduct his daily activities that was contrary to what he had
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generally reported. Although Brown was discharged from the hospital on two
occasions with instructions to use home oxygen, those instructions did not indicate
how much home oxygen he needed, and none of his other hospital discharges
included an instruction to use home oxygen. Based on all of the evidence, the ALJ
concluded that there was nothing in the record showing that Brown’s need for
supplemental oxygen was permanent, or showing to what extent he needed
supplemental oxygen. As a result, substantial evidence supports the ALJ’s
determination that he did not require continuous supplemental oxygen. 1
Brown’s challenge to the ALJ’s finding as to his credibility also fails. The
ALJ provided several reasons for finding Brown’s statements about his need for
continuous oxygen not credible. In particular, she pointed to inconsistencies
between his testimony and evidence in the record. We will not disturb that finding.
Foote v. Chater, 67 F.3d 1553, 1562 (11th Cir. 1995) (“A clearly articulated
credibility finding with substantial supporting evidence in the record will not be
disturbed by a reviewing court.”).
Brown also challenges the ALJ’s determination at step five that he could
perform work in the national or regional economy based on a vocational expert’s
testimony. He argues that the ALJ asked the vocational expert an improper
1
In his reply brief, Brown argues that the ALJ failed to consider his need to carry his
supplemental oxygen in assessing his upper extremity limitations. Because he raised that
argument for the first time in his reply brief, we do not address it. See Jackson v. Comm’r of
Soc. Sec., 601 F.3d 1268, 1274 n.4 (11th Cir. 2010).
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hypothetical question because the question was based on his residual functional
capacity, “which failed to account for [his] need to use supplemental oxygen.” But
because the ALJ did not “fail[ ] to account” for Brown’s need for supplemental
oxygen in determining his residual functional capacity, the ALJ did not err in
posing hypothetical questions to the vocational expert that did not describe his
need for supplemental oxygen. The ALJ’s hypothetical questions included all of
the impairments that Brown met his burden to show. As a result, substantial
evidence supports the ALJ’s conclusion that Brown could perform jobs that were
available in significant numbers in the national economy. See Winschel, 631 F.3d
at 1180 (“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.”).
Finally Brown contends that, “[i]f the ALJ believed that the record was
insufficient regarding [his] need for supplemental oxygen, then she should have
further developed the issue.” An ALJ has a basic obligation to develop a full and
fair record, Welch v. Bowen, 854 F.2d 436, 440 (11th Cir. 1988), and the record
shows that the ALJ fulfilled that obligation in this case. Brown has not identified
what evidence was available to him that the ALJ could have used in developing the
record, and it was his burden to show that that his need for supplemental oxygen
would prevent him from performing the jobs identified by the vocational expert.
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See Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005) (“[The social
security] regulations place a very heavy burden on the claimant to demonstrate
both a qualifying disability and an inability to perform past relevant work.”).
During the disability hearing, the ALJ elicited testimony from Brown as to
his need for oxygen. She specifically asked Brown about his two oxygen
prescriptions, the dates of those prescriptions, and the extent to which he needed
oxygen. The ALJ noted that Brown “came to the hearing . . . with [portable]
oxygen.” The record also contains other evidence of Brown’s respiratory
condition and medical care, including records of hospital discharges that do not
instruct Brown to use home oxygen. As a result, Brown’s contention that the ALJ
should have “further developed” the record as to his need for oxygen is unfounded.
AFFIRMED.
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