Chereza v. Commissioner of Social Security Administration

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-15956 ELEVENTH CIRCUIT
MAY 21, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 08-00604-CV-FTM-99SPC
DREAMA D. CHEREZA,
Plaintiff-Appellant,
versus
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(May 21, 2010)
Before EDMONDSON, BIRCH and FAY, Circuit Judges.
PER CURIAM:
Dreama D. Chereza appeals the district court’s affirmance of the
Commissioner’s denial of disability insurance benefits and supplemental security
income, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). Chereza argues that the
Administrative Law Judge’s (“ALJ’s”) decision that her mental health impairments
had “medically approved” as of August 1, 2003, is not supported by substantial
evidence. She also argues that the ALJ erred in finding that her mental health,
cervical spine, and hearing impairments were not “severe.” For the reasons set
forth below, we affirm.
I.
In October 1998, an ALJ awarded Chereza disability insurance benefits
based on a finding that Chereza was disabled as of June 3, 1996. The ALJ found
that Chereza had the following severe impairments: major depression, a
generalized anxiety disorder, and a personality disorder with dependent and
passive aggressive traits. On September 24, 2004, the Commissioner determined
that Chereza was no longer disabled as of August 1, 2003, and terminated her
benefits. Chereza filed a request for an administrative hearing, and, after the
hearing, the ALJ found that Chereza was no longer disabled. Chereza filed an
appeal with the Appeals Council, which denied review. Chereza then sought
review of the ALJ’s decision in the district court, which upheld the
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Commissioner’s decision to deny benefits.
At the administrative hearing, Chereza testified that she regularly went to her
neighbor’s house, played with her neighbor’s dogs, and tried to pay her bills during
the day. She prepared her own meals and sometimes drove herself to doctor
appointments. Chereza listed her impairments as: fibromyalgia, depression,
anxiety, hypoglycemia, compulsive disorder, attention deficit disorder, and bipolar
disorder.
The medical evidence showed the following. In February 1994, Chereza had
tubes inserted into her ears after complaining of hearing loss. The tubes improved
Chereza’s hearing significantly.
In April 1997, Chereza met with Ajay Krishnan, a physical therapist, to
address pain in her neck and back. Krishnan noted that Chereza could not tolerate
any range of motion in her cervical spine. Radiology reports from March and
September 1997 showed that Chereza’s cervical spine appeared normal. In May
2002, and January 2003, Chereza was diagnosed with cervical sprains, which
limited her range of motion such that she needed assistance to sit, get out of bed,
and dress herself. From July 2002, through November 2002, Dr. Gilberto Acosta
treated Chereza for neck and back pain. Dr. Acosta prescribed a muscle relaxant
on Chereza’s initial visit and subsequently prescribed water therapy, noting that
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Chereza’s best treatment options were “extremely conservative.” Dr. Acosta also
prescribed Botox injections and a Lidoderm patch to reduce muscle pain. Chereza
reported significant improvements in her pain and, by November 2002, Dr. Acosta
instructed Chereza to return on an as-needed basis. Chereza received additional
Botox injections on May 14, 2003, October 30, 2003, and April 27, 2004, to treat
muscle spasms. Dr. Stanley Rabinowitz examined Chereza in July 2004, and
determined that her range of motion in her cervical spine was normal.
Pre-October 1998, medical records showed that, in 1996 and 1997, Chereza
was diagnosed with depression, anxiety, and agoraphobia1 , which Dr. Rudolfo
Vocal described as “difficult to control.” Chereza reported having panic attacks
and Dr. Vocal prescribed medication to control Chereza’s obsessive thoughts. In
February 1998, Chereza was hospitalized for depression and suicidal ideation. She
reported “hearing voices” and was prescribed medication for symptoms of auditory
hallucinations. In April 1998, Chereza’s therapist determined that Chereza was “in
crisis” and needed more intensive services. Chereza subsequently moved into a
group home.
Medical evidence from October 1998 through August 1, 2003, showed that
1
Agoraphobia is the abnormal fear of being helpless in a situation from which escape
may be difficult or embarrassing. The condition is characterized initially often by panic or
anticipatory anxiety and later by avoidance of open or public spaces. See www.merriam-
webster.com/medlineplus/agoraphobia.
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Chereza received inpatient treatment for depression and an overeating disorder at
The Willough at Naples (“The Willough”) from May 15 through June 12, 2002,
and from January 21 through February 5, 2003.
Post-August 1, 2003, medical records showed that Dr. Paul Betancourt
prescribed additional medication after Chereza complained of mood swings and
pressured speech. Dr. Irene Warburton examined Chereza in November 2003, and
found her speech and motor behavior to be normal. In December 2003, Dr. Norma
Henriquez noted that medication controlled Chereza’s mood, depression, and
anxiety. In February 2004, Chereza reported that her mood was under control.
Margaret Black, a licensed social worker, wrote in a May 2004 letter that Chereza
had difficulty concentrating and was easily distracted. She stated that Chereza
responded to psychotherapy, had few stressors in her life, and had improved her
coping skills, although she still had difficulty understanding verbal commands or
written directions. In July 2004, Dr. Rabinowitz found that Chereza’s memory was
intact, her behavior was appropriate, and she appeared capable of handling her own
funds. Chereza reported, in May 2004, that she prepared her own meals, did all of
her own shopping and got along well with others. She noted memory and
concentration difficulties. A May 11, 2004, “Psychiatric Review Technique,”
completed by Dr. Martha Putney indicated that Chereza’s activities of daily living,
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ability to maintain social functioning, and ability to maintain concentration,
persistence, and pace were mildly limited. A July 28, 2004, Functional Residual
Capacity Assessment determined that Chereza had no postural, manipulative,
visual, communicative, or environmental limitations.
The ALJ found that, as of August 1, 2003, Chereza’s mental impairments
were no longer severe, because her depression and anxiety were satisfactorily
controlled with medication, and she was not experiencing hallucinations, had not
been psychiatrically hospitalized, and had not required intensive psychiatric care.
The ALJ found, based on opinions of state agency psychological consultants and
the record as a whole, that Chereza had only mild restrictions in activities of daily
living. Accordingly, the ALJ determined that Chereza’s disability ended as of
August 1, 2003.
Chereza appealed the ALJ’s decision to the Appeals Council and submitted
additional medical evidence. The Appeals Council denied review.
Chereza then filed a complaint in the district court, arguing that (1) the ALJ
failed to properly consider the medical evidence and applied the wrong legal
standard in reaching his decision, and (2) the ALJ’s decision was unreasonable and
not supported by substantial evidence.
The district court found that the ALJ properly compared the prior medical
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evidence to the current medical evidence. It determined that substantial evidence
supported the ALJ’s finding that Chereza’s mental impairments had improved and
were no longer severe. Finally, the court found that the medical record did not
support Chereza’s contention that her cervical spine or hearing impairments were
severe. Accordingly, the district court affirmed the ALJ’s decision to deny benefits
as of August 1, 2003.
II.
A. Whether Chereza’s Mental Health Impairments Had Medically
Improved
We review a Social Security 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 consists of “such
relevant evidence as a reasonable person would accept as adequate to support a
conclusion.” Id. The burden rests with the claimant to prove that she is disabled
and entitled to Social Security benefits. See 20 C.F.R. § 404.1512(a).
An ALJ may terminate a claimant’s benefits upon finding that there has been
medical improvement in the claimant’s impairment or combination of impairments
related to the claimant’s ability to work and the claimant is now able to engage in
substantial gainful activity. 42 U.S.C. § 423(f)(1). To determine whether
disability should be terminated, the ALJ must conduct a multi-step evaluation
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process and determine:
(1) Whether the claimant is engaging in substantial gainful
activity;
(2) If not gainfully employed, whether the claimant has an
impairment or combination of impairments which meets
or equals a listing;
(3) If impairments do not meet a listing, whether there has
been medical improvement;
(4) If there has been improvement, whether the improvement
is related to the claimant’s ability to do work;
(5) If there is improvement related to claimant’s ability to do
work, whether an exception to medical improvement
applies;
(6) If medical improvement is related to the claimant’s
ability to do work or if one of the first groups of
exceptions to medical improvement applies, whether the
claimant has a severe impairment;
(7) If the claimant has a severe impairment, whether the
claimant can perform past relevant work;
(8) If the claimant cannot perform past relevant work,
whether the claimant can perform other work.
See 20 C.F.R. § 404.1594(f). To determine if there has been medical
improvement, the ALJ must compare the medical evidence supporting the most
recent final decision holding that the claimant is disabled with new medical
evidence. McAulay v. Heckler, 749 F.2d 1500, 1500 (11th Cir. 1985); see 20
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C.F.R. § 404.1594(c)(1).
Although evidence presented to the Appeals Council, but not to the ALJ, is
part of the record on appeal, when the Appeals Council has denied review of the
ALJ’s decision, we look only to evidence actually presented to the ALJ to
determine whether the ALJ’s decision is supported by substantial evidence. Falge
v. Apfel, 150 F.3d 1320, 1322-23 (11th Cir. 1998) (noting that we will consider
evidence submitted only to the Appeals Council if the plaintiff requests a remand
for consideration of newly discovered evidence).
Here, the ALJ properly compared the medical evidence underlying the
October 1998, disability determination to new evidence Chereza had presented.
He accurately summarized the medical evidence available in 1998, as well as
Chereza’s recent medical evidence, and pointed out specific areas of improvement.
Although Chereza argues that the ALJ erred in considering her history of auditory
hallucinations, the medical records, available in 1998, indicated that Chereza
suffered from auditory hallucinations, and the ALJ stated, in his 1998 opinion, that
he had considered the “entire record” in determining that Chereza was disabled.
Accordingly, because evidence of Chereza’s auditory hallucinations was
considered by the ALJ in making the original disability determination, the ALJ did
not err in considering evidence of these hallucinations in determining whether
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Chereza’s condition had improved. See McAulay, 749 F.2d at 1500.
Chereza also argues that the ALJ erroneously stated that she had not been
psychiatrically hospitalized, because she was hospitalized at The Willough for an
eating disorder and depression. However, Chereza’s hospitalizations at The
Willough occurred in 2002 and early 2003. Because the ALJ found that Chereza’s
impairments did not improve until August 1, 2003, the hospitalizations occurred at
a time when Chereza was disabled and entitled to disability benefits. Thus, the
ALJ did not err in determining that, since the date of medical improvement,
Chereza had not been psychiatrically hospitalized.
In determining whether the ALJ’s finding of medical improvement is
supported by substantial evidence, we consider only the evidence actually
presented to the ALJ, because the Appeals Council denied review of the ALJ’s
determination. See Falge, 150 F.3d at 1322-23. The medical evidence available to
the ALJ in 1998 showed that Chereza suffered from a panic disorder, agoraphobia
that was difficult to control, and obsessive thoughts. These impairments were so
severe that Chereza was admitted into a hospital for depression and suicidal
ideations, was subsequently determined to be “in crisis,” and was eventually placed
into a group home. The medical evidence also indicated that Chereza was taking
medication for auditory hallucinations.
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The medical evidence after August 1, 2003, showed marked improvements
in these mental impairments, as Chereza and Dr. Henriquez both reported that
Chereza’s depression and anxiety – two impairments upon which the initial
disability determination was based – were generally controlled by medication.
Chereza also reported no auditory hallucinations after August 1, 2003. In
November 2003, Dr. Warburton noted that Chereza’s speech and motor behavior
were normal and, in May 2004, Chereza herself reported that she was able to
prepare meals, shop, and get along well with others. Although Chereza and Black
indicated that Chereza had memory and concentration difficulties, Dr. Rabinowitz
determined that Chereza’s memory was intact and a May 2004, Psychiatric Review
Technique determined that Chereza’s ability to maintain social functioning,
concentration, persistence, and pace were only mildly limited. Furthermore, Black
noted that Chereza had few stressors in her life, responded to psychotherapy, and
had improved coping skills. Thus, a comparison of the post-August 1, 2003,
medical evidence with the pre-October 1998, evidence shows that (1) Chereza’s
mental impairments no longer required hospitalization or intensive inpatient
treatment, (2) medication controlled the majority of Chereza’s symptoms, and (3)
Chereza’s ability to carry on daily activities were only mildly limited. The ALJ
correctly determined that this was a significant improvement from Chereza’s
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October 1998, mental condition.
Chereza argues that the district court erred in placing too much weight on
the opinions of non-examining physicians. While it is true that reports of non-
examining physicians do not constitute substantial evidence on which to base the
denial of benefits, Lamb v. Bowen, 847 F.2d 698, 703 (11th Cir. 1988), the ALJ
stated that it considered the opinions of non-examining physicians in conjunction
with Chereza’s symptoms, objective medical evidence, and other medical opinions.
Furthermore, the opinions of Dr. Rabinowitz and other non-examining physicians
do not conflict with the post-August 1, 2003, opinions of Chereza’s examining
physicians, who noted that Chereza’s speech and motor behavior were normal and
that her depression and anxiety were controlled. See 20 C.F.R. § 416.927(f)(2)(i)
(providing that an ALJ may consider reports and assessments of state agency
physicians as expert opinions); Edwards v. Sullivan, 937 F.2d 580, 585 (11th Cir.
1991) (providing that an ALJ may rely on a non-examining physician’s report in
denying disability insurance benefits if the non-examining physician’s report did
not contradict information in examining physicians’ reports).
Finally, Chereza argues that the ALJ erred in rejecting Black’s medical
opinions. Chereza specifically cites a letter from Black, dated August 26, 2006, in
which Black opined that Chereza could not deal with work stresses or complete a
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normal work day without interruptions from psychologically based symptoms.
However, this letter was submitted only to the Appeals Council, not the ALJ, and,
therefore, the ALJ could not have considered it. Furthermore, we do not consider
this evidence in determining whether the ALJ’s decision was supported by
substantial evidence. See Falge, 150 F.3d at 1322-23. The record examined by the
ALJ did contain a May 7, 2004, letter from Black, in which Black noted that
Chereza was easily distractable and had difficulty understanding written or verbal
directions. However, as noted above, even in light of this letter, the ALJ’s decision
was supported by substantial evidence. Accordingly, the district court did not err
in finding that the ALJ’s determination, that Chereza’s medical improvements had
improved as of August 1, 2003, was supported by substantial evidence.
B. Whether The ALJ Erred in Determining That Chereza’s Mental
Health, Cervical Spine, and Hearing Impairments Were Not “Severe”
The claimant bears the burden of proving that she has a severe impairment
or combination of impairments. Chester v. Brown, 792 F.2d 129, 131 (11th Cir.
1986). An impairment is not severe if it does not significantly limit the claimant’s
physical or mental ability to do basic work activities. 20 C.F.R. § 404.1521(a);
Crayton v. Callahan, 120 F.3d 1217, 1219 (11th Cir. 1997). “Basic work
activities” include: physical functions such as walking, standing, sitting, lifting,
pulling, reaching, carrying, or handling; seeing, hearing, and speaking;
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understanding, carrying out, and remembering simple instructions; use of
judgment; responding appropriately to supervision, co-workers, and usual work
situations; and dealing with changes in a routine work setting. 20 C.F.R.
§ 404.1521(b). An impairment is not severe only if the abnormality is so slight and
its effect so minimal that it would clearly not be expected to interfere with the
individual’s ability to work, irrespective of age, education, or work experience.
McDaniel v. Bowen, 800 F.2d 1026, 1031 (11th Cir. 1986). It is a threshold
inquiry where only the most trivial impairments are rejected. Id.i. Mental Health Impairments
The ALJ determined that Chereza’s mental health impairments were
“severe” until August 1, 2003. The medical evidence after August 1, 2003,
showed that Chereza complained of mood swings and pressured speech, but
reported that her depression and anxiety were controlled by medications. Dr.
Warburton, a treating physician, described Chereza’s speech and motor behavior as
normal, and Dr. Rabinowitz, an examining physician, stated that Chereza’s
memory was intact, her behavior was appropriate, and she appeared able to handle
funds. Chereza reported that she did all of her shopping, prepared her meals, and
got along well with others. Black reported that Chereza had difficulty
understanding verbal or written directions, but did not indicate how severe this
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problem was, and Dr. Putney determined that Chereza’s daily activities,
concentration, persistence, and pace were only mildly limited. See Edwards, 937
F.2d at 585 (providing that an ALJ may rely on a non-examining physician’s report
in denying disability insurance benefits if the non-examining physician’s report did
not contradict information in examining physicians’ reports). Based on this
medical evidence, substantial evidence supports the ALJ’s conclusion that, as of
August 1, 2003, Chereza was no longer suffering from a severe mental impairment.
ii. Cervical Spine Impairment
Substantial evidence supports the ALJ’s finding that Chereza’s cervical
spine impairment was not severe. Radiology reports from March and September
1997, showed that Chereza’s cervical spine appeared normal. Although Chereza
complained of stiffness and pain in her cervical spine from May through December
2002, Dr. Acosta noted that injections, water therapy, and a Lidoderm patch
provided pain relief. In fact, by December 2002, Chereza reported “very
significant relief” in pain and stiffness, and Dr. Acosta determined that there was
no need for repeat injections. Although Chereza was diagnosed with a cervical
sprain in January 2003, and received another Botox injection in May 2003, after
August 1, 2003, Chereza received only two Botox injections to treat “muscle
spasms.” Furthermore, any pain or stiffness in Chereza’s cervical spine did not
15
appear to limit her ability to perform work activities. An August 2003 Physical
Residual Functional Capacity Assessment showed that Chereza could frequently
carry 10 pounds, stand or walk for 6 hours in an 8-hour workday, climb stairs, and
balance, stoop, kneel, crouch, and crawl. Moreover, Chereza indicated in May
2004 that she was able to prepare her own meals and do all of her shopping.
Finally, Dr. Rabinowitz determined, in July 2004, that Chereza’s range of motion
in her cervical spine was normal, and a July 2004, Residual Capacity Assessment
indicated that Chereza could occasionally lift 50 pounds, frequently lift 25 pounds,
stand or walk about 6 hours in an 8-hour workday, and sit about 6 hours in an 8-
hour workday. Accordingly, because Chereza’s problems with her cervical spine
did not have more than a minimal effect on her daily activities, the district court
did not err in determining that Chereza’s cervical spine impairment was not severe.
See 20 C.F.R. § 404.1521(a), (b); McDaniel, 800 F.2d at 1031.
iii. Hearing Impairment
In an October 30, 2003, “Reconsideration Report for Disability Cessation”
and at the hearing before the ALJ, Chereza did not mention her hearing impairment
as an impairment that impacted her daily activities. Although Chereza mentioned
that she was having trouble hearing the ALJ at a prior hearing, another individual
indicated that the problem was with the sound system, not Chereza’s hearing, and
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Chereza continued to answer the ALJ’s questions. Furthermore, recent evidence
regarding Chereza’s hearing impairment was presented only to the Appeals
Council, so that the ALJ did not have an opportunity to consider it. Because the
claimant bears the burden of producing evidence of her disability, the district court
did not err in failing to consider Chereza’s hearing impairment as a severe
impairment. See Chester, 792 F.2d at 131. Accordingly, we affirm the district
court’s decision upholding the denial of social security benefits as of August 1,
2003.
AFFIRMED.
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