Christopher J. Kalishek v. Commissioner of Social Security

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 11-15487 MAY 30, 2012
Non-Argument Calendar JOHN LEY
________________________ CLERK
D.C. Docket No. 8:10-cv-00714-SDM-AEP
CHRISTOPHER J. KALISHEK,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(May 30, 2012)
Before BARKETT, JORDAN and ANDERSON, Circuit Judges.
PER CURIAM:
Christopher Kalishek appeals the district court’s order affirming the
Commissioner’s administrative denial of his applications for a period of disability
and Disability Insurance Benefits (“DIB”), 42 U.S.C. § 405(g). On appeal,
Kalishek first argues that the administrative law judge (“ALJ”) did not make
detailed findings or seriously discuss whether his impairment met Listing 1.02A,
regarding major dysfunction of a joint or joints, in the Listing of Impairments
(“Listings”). He contends that he was not able to effectively ambulate, as required
by Listing 1.02A. He argues that his position was supported by the medical
evidence, including an opinion from his treating physician that was submitted to
the Appeals Council after the ALJ had issued his decision. Secondly, Kalishek
argues that the ALJ erred in finding him not credible because his testimony and
statements as to the intensity, persistence, and limiting effects of his pain were not
inconsistent.
I.
We review de novo the district court’s decision as to whether substantial
evidence supports the ALJ’s decision. Wilson v. Barnhart, 284 F.3d 1219, 1221
(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.” Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir.
2004) (quotation omitted).
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Normally, we review the decision of the ALJ as the Commissioner’s final
decision when the ALJ denies benefits and the Appeals Council denies review of
the ALJ’s decision. Id. However, “when a claimant properly presents new
evidence to the Appeals Council, a reviewing court must consider whether that
new evidence renders the denial of benefits erroneous.” Ingram v. Comm’r of Soc.
Sec., 496 F.3d 1253, 1262, 1266 (11th Cir. 2007).
A person is disabled under the Social Security Act if they have the “inability
to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in
death or which has lasted or is expected to last for a continuous period of not less
than 12 months.” 42 U.S.C. § 423(d)(1)(A). The agency uses a five-step
sequential evaluation process when determining whether a claimant is disabled.
See 20 C.F.R. § 404.1520. First, if the claimant is performing substantial gainful
activity, the claimant is not disabled. Id. § 404.1520(a)(4)(i). If not, then the
Commissioner considers the medical severity of the claimant’s impairments at the
second step. Id. § 404.1520(a)(4)(ii). At the third step, if the Commissioner
determines that the claimant’s impairment or combination of impairments meets or
equals a listed impairment, then the claimant is considered disabled, regardless of
the claimant’s age, education, or work experience. Id. § 404.1520(a)(4)(iii), (d).
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If not, at the fourth step, the Commissioner considers the claimant’s residual
functional capacity and ability to perform past relevant work. Id.
§ 404.1520(a)(4)(iv). If the claimant cannot perform any past relevant work, the
Commissioner then determines, at the fifth step, whether the claimant, based on
their residual functional capacity, age, education, and work experience, can make
an adjustment to other work. Id. § 404.1520(a)(4)(v). If the Commissioner finds
that the claimant can make such an adjustment, then the Commissioner will find
that the claimant is not disabled. Id.
The claimant has the burden of proving that an impairment meets or equals
a listed impairment. Barron v. Sullivan, 924 F.2d 227, 229 (11th Cir. 1991). To
“meet” a Listing, a claimant must have a diagnosis included in the Listings and
must provide medical reports documenting that the conditions meet the specific
criteria of the Listings and the duration requirement. 20 C.F.R. § 404.1525(a)-(d);
Wilson, 284 F.3d at 1224. To “medically equal” a Listing, the medical findings
must be “at least equal in severity and duration to the criteria of any listed
impairment.” 20 C.F.R. § 404.1526(a); Wilson, 284 F.3d at 1224. If a claimant
has more than one impairment, and none meets or equals a listed impairment, the
Commissioner reviews the impairments’ symptoms, signs, and laboratory findings
to determine whether the combination is medically equal to the criteria of any
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listed impairment. Id. An impairment that meets only some of the criteria of a
Listing, no matter how severely, does not qualify. 20 C.F.R. § 416.925(c)(3). The
ALJ’s finding as to whether a claimant meets a listed impairment may be implied
from the record. Hutchison v. Bowen, 787 F.2d 1461, 1463 (11th Cir. 1986).
Furthermore, while the ALJ must consider the Listings in making its disability
determination, “it is not required that the [ALJ] mechanically recite the evidence
leading to [its] determination.” Id.Listing 1.02A defines major dysfunction of a joint or joints as being
characterized by: (1) “gross anatomical deformity,” which includes subluxation
(malpositioning of a bone), contracture, bony or fibrous anklyosis, or instability;
(2) chronic joint pain and stiffness with signs of either limitation of motion or
other abnormal motion of the affected joint or joints; (3) findings on “appropriate
medically acceptable imaging” of either joint space narrowing, bony destruction,
or anklyosis of the affected joint or joints; and (4) the involvement of one major
peripheral weight-bearing joint, such as the knee, hip, or ankle, resulting in an
inability to ambulate effectively, as defined in Listing 1.00B2b. 20 C.F.R. Pt. 404,
Subpt. P, App’x 1, § 1.02A. The inability to ambulate effectively is defined as “an
extreme limitation of the ability to walk,” or an impairment that “interferes very
seriously with the individual’s ability to independently initiate, sustain, or
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complete activities.” Id. § 1.00B2b(1). The inability to ambulate effectively is
also generally defined as having insufficient functioning of the lower extremities
such that the claimant cannot independently ambulate without the use of a
hand-held assistive device “that limits the functioning of both upper extremities.”
Id. To be able to ambulate effectively, claimants:
[M]ust be capable of sustaining a reasonable walking pace over a
sufficient distance to be able to carry out activities of daily living.
They must have the ability to travel without companion assistance to
and from a place of employment or school. Therefore, examples of
ineffective ambulation include, but are not limited to, the inability to
walk without the use of a walker, two crutches or two canes, the
inability to walk a block at a reasonable pace on rough or uneven
surfaces, the inability to use standard public transportation, the
inability to carry out routine ambulatory activities, such as shopping
and banking, and the inability to climb a few steps at a reasonable
pace with the use of a single hand rail. The ability to walk
independently about one’s home without the use of assistive devices
does not, in and of itself, constitute effective ambulation.
Id. § 1.00B2b(2).
Normally, the opinion of a treating physician must be given substantial or
considerable weight unless “good cause” is shown to the contrary. Crawford,
363 F.3d at 1159. A treating physician’s report may be discounted when it is not
accompanied by objective medical evidence or is wholly conclusory. Id.Upon review of the record and consideration of the parties’ briefs, we
affirm. This record reflects that substantial evidence supports the agency’s
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conclusion that Kalishek did not meet Listing 1.02A because, in light of the
medical evidence and Kalishek’s own testimony, the ALJ reasonably could have
concluded that Kalishek could effectively ambulate. Furthermore, the additional
opinions submitted by Kalishek’s treating physician after the ALJ had rendered its
decision do not render the ALJ’s findings erroneous because the opinions were
wholly conclusory and unaccompanied by any objective medical evidence.
II.
When a claimant testifies to subjective complaints of pain, the ALJ must
clearly articulate adequate reasons for discrediting the claimant’s allegations of
disabling symptoms. Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005).
Failure to articulate the reasons for discrediting such testimony mandates that the
testimony, as a matter of law, be accepted as true. Cannon v. Bowen, 858 F.2d
1541, 1545 (11th Cir. 1988). However, if the ALJ clearly articulates adequate
reasons for its finding, and there is substantial supporting evidence in the record,
we will not disturb the credibility finding on review. Foote v. Chater, 67 F.3d
1553, 1562 (11th Cir. 1995). An ALJ is allowed to consider a claimant’s daily
activities when determining whether a claimant’s testimony regarding symptoms
such as pain is not credible, as well as whether medication helped the claimant’s
condition. See 20 C.F.R. § 404.1529(c)(3)(i), (iv). Furthermore, the ALJ may
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consider the claimant’s demeanor and appearance at the hearing in evaluating
credibility. Macia v. Bowen, 829 F.2d 1009, 1011 (11th Cir. 1987). The ALJ’s
consideration of the claimant’s demeanor, however, must not be the sole
consideration in making a credibility determination. Norris v. Heckler, 760 F.2d
1154, 1158 (11th Cir. 1985).
Because the ALJ clearly articulated reasons in support of its finding that
Kalishek was not credible, and those reasons are supported by substantial
evidence, we will not disturb the ALJ’s credibility finding.
AFFIRMED.
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