Laverne C. McCants v. Commissioner of Social Security

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-13406
Non-Argument Calendar
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D.C. Docket No. 8:13-cv-01590-VMC-MAP
LAVERNE C. MCCANTS,
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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(March 13, 2015)
Before WILLIAM PRYOR, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
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Laverene McCants appeals a decision that affirmed the denial of his
application for disability insurance benefits for the period between September 1,
2002, and March 31, 2004. See 42 U.S.C. §§ 405(g), 1383(c)(3). McCants
challenges the finding of the administrative law judge that he was not disabled and
argues that the district court should have remanded his case for the Commissioner
to reconsider a mental health report prepared by Dr. William Pettibon. We affirm.
Two standards of review govern this appeal. First, we review the decision of
the Commissioner “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) (quoting Lewis v. Callahan, 125 F.3d 1436, 1439 (11th Cir.
1997)). Substantial evidence consists of “such relevant evidence as a reasonable
person would accept as adequate to support a conclusion” that a claimant is not
entitled to benefits. Id. Second, we review de novo the denial of McCants’s request
to remand his case. Ingram v. Comm’r of Soc. Sec., 496 F.3d 1253, 1261 (11th Cir.
2007). A remand is warranted under the fourth sentence of section 405(g) only if
the evidence is new and material. Hyde v. Bowen, 823 F.2d 456, 459 (11th Cir.
1987). Evidence is material if “there is a reasonable possibility that it would
change the administrative result.” Id.
Substantial evidence supports the finding of the administrative law judge
that McCants was not disabled. The administrative law judge considered
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McCants’s medical records, his accounts of his condition, and opinion evidence
and reasonably determined that his gouty arthritis, osteoarthritis, chronic back pain,
obesity, human immunodeficiency virus (HIV), hyperlipidemia, dental problems,
and hypertension were not severe because they did not “significantly limit[] [his]
ability to perform basic work activities.” See 20 C.F.R. § 404.1520(c). Medical
records reflected that, in October 2002 and February 2003, McCants’s arthritis
tests had results within normal limits and he had two minor flare-ups of his gout; in
October 2002 and August 2003, the crepitus in his knees remained mild; in August
2003, he had no joint inflammation and his breathing, heartrate, and kidneys were
normal; and in December 2003 he had numbness and swelling around his left jaw
that subsided in January 2004. McCants reported that his condition improved over
time: in October 2002, he reported feeling “so-so” and “somewhat better”; in
February 2003, he reported doing fairly well with his arthritis; in August 2003, he
reported feeling fine and without pain; and in January 2004, he reported that his
jaw pain had subsided. And McCants also reported in 2003 that his HIV had not
required treatment since June 2000. McCants testified that he had been disabled by
an injury to his back and by gout that required him to use crutches to ambulate, but
his testimony was inconsistent with the objective medical evidence and his
statements to his physicians about working in 2004 and his overall health. See
Wilson v. Barnhart, 284 F.3d 1219, 1226 (11th Cir. 2002).
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The administrative law judge had good cause to discount the opinion of Dr.
Douglas Walsh in determining whether McCants was disabled. In April 2002, Dr.
Walsh treated McCants for back pain, and in July 2010, the doctor wrote a
memorandum on McCants’s behalf opining that his impairments were disabling.
The doctor opined that McCants’s impairments rendered him unable to sit for
prolonged periods; made it difficult for him to stand and walk without severe pain;
interfered with his ability to bend and carry much weight; and required him to rest
at regular intervals and to use crutches to ambulate. The administrative law judge
reasonably discredited Dr. Walsh’s opinion as “conclusory[ because it] provid[ed]
very little explanation of the evidence relied on”; “inconsistent with the medical
record[, which] contained little to no evidence from September 1, 2002 to March
31, 2004, of findings related to [McCants’s] range of motion or gait”; and
contradicted by McCants’s “report[s] [that] he was doing well.” See Phillips v.
Barnhart, 357 F.3d 1232, 1240–41 (11th Cir. 2004).
The district court did not err by refusing to remand McCants’s case for the
Commissioner to reconsider a psycho-educational report prepared by Dr. Pettibon
in January 2013. The Appeals Counsel was mistaken in finding that the report did
not “relate[] to the period on or before the date of the administrative law judge
hearing decision,” 20 C.F.R. § 404.970(b); see id. § 416.1470(b), because the
report described McCants’s low cognitive abilities and low IQ, which are
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presumed “to remain fairly constant throughout life,” Hodges v. Barnhart, 276
F.3d 1265, 1268 (11th Cir. 2001). Even so, a remand is unnecessary because the
report is not material. See Hyde, 823 F.2d at 459. Nothing in the report reveals that
“the administrative law judge’s action, findings, or conclusion is contrary to the
weight of the evidence . . . of record.” 20 C.F.R. § 404.970(b). There is no medical
evidence in the record on the subject of Dr. Pettibon’s report. See Ingram, 496 F.3d
at 1261. In April 2009, Dr. Judith Meyers, a state agency psychological consultant,
conducted a psychiatric review and reported that there was insufficient medical
evidence from which she could opine that McCants had any severe mental
impairment on or before March 31, 2004. McCants had testified that he did not
read or write well and submitted transcripts from two high schools reflecting that
he had average to failing grades and underwent a personality test, but neither
McCants’s testimony nor the transcripts suggested that McCants had a cognitive or
learning disorder. Dr. Pettibon’s report does not change the conclusion that the
denial of benefits to McCants was supported by substantial evidence.
We AFFIRM the denial of McCants’s application for disability benefits.
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