Christopher J. Kalishek v. Commissioner of Social Security

470 F. App'x 868
CourtCourt of Appeals for the Eleventh Circuit
DecidedMay 30, 2012
Docket11-15487
StatusUnpublished
Cited by35 cases

This text of 470 F. App'x 868 (Christopher J. Kalishek v. Commissioner of Social Security) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Christopher J. Kalishek v. Commissioner of Social Security, 470 F. App'x 868 (11th Cir. 2012).

Opinion

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 (“DÍB”), 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).

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). 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, *870 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 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 complete activities.” Id. § 1.00B2b(l). 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.

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470 F. App'x 868, Counsel Stack Legal Research, https://law.counselstack.com/opinion/christopher-j-kalishek-v-commissioner-of-social-security-ca11-2012.