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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-14763 Non-Argument Calendar ________________________
D.C. Docket No. 1:16-cv-00084-LJA-TQL
KIMBERLY LUSTGARTEN, Plaintiff-Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
________________________
Appeal from the United States District Court for the Middle District of Georgia ________________________
(November 15, 2019)
Before NEWSOM, GRANT, and FAY, Circuit Judges.
PER CURIAM:
Kimberly Lustgarten appeals the district court’s order affirming the
Commissioner of Social Security’s denial of her applications for disability Case: 17-14763 Date Filed: 11/15/2019 Page: 2 of 17
insurance benefits and supplemental security income. On appeal, Lustgarten
argues that the administrative law judge (ALJ) erred in assigning limited weight to
her primary care physician’s opinions, finding that her subjective complaints of
pain were not entirely credible, and failing to consider her headaches as a separate
impairment. She also argues that the Appeals Council erred in denying review of
the ALJ’s ruling because it failed to properly consider newly submitted evidence.
After a thorough review of the briefing and administrative record, we affirm.
I.
“We review the Commissioner’s factual findings with deference and the
Commissioner’s legal conclusions with close scrutiny.” Doughty v. Apfel, 245
F.3d 1274, 1278 (11th Cir. 2001). We will affirm if the Commissioner applied the
correct legal standards and his decision is supported by substantial evidence. See
Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002) (per curiam).
“Substantial evidence is something ‘more than a mere scintilla, but less than a
preponderance.’” Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005) (per
curiam) (citation omitted). It is “such relevant evidence as a reasonable person
would accept as adequate to support a conclusion.” Moore v. Barnhart, 405 F.3d
1208, 1211 (11th Cir. 2005) (per curiam). Under this limited standard of review,
we will not make factual findings or credibility determinations in the first instance
or re-weigh evidence. Id. We defer to the ALJ’s decision if it is supported by
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substantial evidence, even if the evidence preponderates against it. Crawford v.
Comm’r of Soc. Sec., 363 F.3d 1155, 1158–59 (11th Cir. 2004) (per curiam).
Where, as here, the Appeals Council denies review of an unfavorable decision by
the ALJ, we review the ALJ’s ruling as the final decision of the Commissioner.
Doughty, 245 F.3d at 1278.
II.
Social Security regulations outline a five-step process that the ALJ must use
to determine whether a claimant is disabled: first, the ALJ considers the claimant’s
work activity; second, if the claimant is not engaged in substantial gainful activity,
the ALJ considers the medical severity of her impairments; third, if the claimant
has a severe impairment or combination of impairments of sufficient duration, the
ALJ must determine whether that impairment or combination of impairments
meets or equals one of the impairments listed in 20 C.F.R. § 404, Subpart P,
Appendix 1; fourth, if not, the ALJ must determine whether the claimant can
perform her past relevant work in light of her residual functional capacity; and
fifth, if the claimant cannot perform past relevant work, the ALJ must determine
whether she can perform other work found in the national economy commensurate
with her age, education, and experience. 20 C.F.R. §§ 404.1520(a)(4)(i)–(v),
416.920(a)(4)(i)–(v); see Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178
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(11th Cir. 2011). If, as the ALJ found here, the claimant can perform past relevant
work, then she is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv).
Lustgarten does not dispute the ALJ’s findings that she had not engaged in
substantial gainful activity since her alleged onset date of November 1, 2011; that
she did have severe impairments—namely, obesity, degenerative disc disease of
the lumbar and cervical spine, degenerative joint disease of the knees, and
hypertension—and that none of her impairments were equivalent in severity to a
listed impairment. Instead, she focuses on step four of the disability analysis and
the ALJ’s finding that she had the residual functional capacity to perform a limited
range of sedentary work, including her past relevant work as a telemarketer.1
Specifically, she argues that the ALJ improperly discounted the opinion of one of
her treating physicians and her own testimony regarding her limitations and
improperly failed to consider her headaches as a separate impairment. We address
each argument in turn.
III.
A.
At step four of the sequential analysis, the ALJ must first determine the
claimant’s residual functional capacity, and then decide whether she has the ability
1 We presume the parties’ familiarity with the facts and recite only those necessary to the resolution of the appeal. 4 Case: 17-14763 Date Filed: 11/15/2019 Page: 5 of 17
to return to her past relevant work. Phillips v. Barnhart, 357 F.3d 1232, 1238
(11th Cir. 2004). In determining a claimant’s residual functional capacity, the ALJ
must consider all relevant evidence, including medical opinion evidence. See id.;
20 C.F.R. § 404.1545(a)(3). The ALJ must give a treating physician’s medical
opinion “substantial or considerable weight,” unless the ALJ clearly articulates
good cause for discounting that opinion. Winschel, 631 F.3d at 1179 (citation
omitted). “Good cause exists ‘when the: (1) treating physician’s opinion was not
bolstered by the evidence; (2) evidence supported a contrary finding; or (3) treating
physician’s opinion was conclusory or inconsistent with the doctor’s own medical
records.’” Id. (citation omitted). When the ALJ articulates specific reasons for
failing to give the opinion of a treating physician controlling weight and those
reasons are supported by substantial evidence, we will not reverse the
Commissioner’s decision. Moore, 405 F.3d at 1212.
One of Lustgarten’s treating physicians, Andrew Dekle, M.D., completed a
medical source statement in which he opined (as relevant here) that Lustgarten
could stand and walk for less than 2 hours and sit for a total of about 2 hours
during an 8-hour work day; she would need to change positions and walk around
every 15 minutes; she would have to rest, recline, or lie down at unpredictable
intervals “most of the time” during an 8-hour shift; and she would need to elevate
her legs above her heart at “all available times” during the day due to swelling in
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her legs and feet. Dr. Dekle also stated that Lustgarten did not need a cane or
walker to walk, but he issued a prescription for a cane—without an accompanying
office note—about a week later.
The ALJ found that Dr. Dekle’s opinion was due “little weight” because it
was “inconsistent with the longitudinal evidence of record.” The ALJ cited to
multiple other medical evaluations from Lustgarten’s emergency room, hospital,
and primary care physician visits which stated that Lustgarten had normal range of
motion in her arms and legs, normal motor strength and sensory responses, walked
with a steady gait, and had no swelling in the feet and lower legs. The ALJ
recognized that Dr. Dekle had prescribed a cane for Lustgarten but noted that there
was no indication that she would need a cane for 12 months or more. The ALJ
also noted that Lustgarten’s activities of daily living, which included laundry, light
housekeeping, preparing simple meals, driving, shopping, and babysitting, as well
as periodic work activity, were inconsistent with Dr. Dekle’s opinion about the
extent of her work limitations.
Lustgarten claims that the ALJ failed to apply the tests for assigning weight
to a treating physician’s opinion set out in 20 C.F.R. §§ 404.1527(c)(2) and
416.927(c)(2). Under these regulations, the ALJ gives “controlling weight” to a
treating physician’s opinion if the opinion is “well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is not inconsistent
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with the other substantial evidence” in the claimant’s record. Id.
§§ 404.1527(c)(2), 416.927(c)(2). If the ALJ does not assign controlling weight to
the opinion, the ALJ must consider (1) whether the doctor has examined or treated
the claimant; (2) the length, nature, and extent of the doctor’s relationship with the
claimant or the frequency of examination; (3) the amount of evidence and
explanation supporting the doctor’s opinion; (4) the consistency of the opinion
with the record as a whole; (5) the doctor’s specialization; and (6) other factors
such as how familiar the doctor is with other evidence in the claimant’s case
record. Id. §§ 404.1527(c), 416.927(c).
Lustgarten’s argument that the ALJ did not engage in this analysis is flatly
contradicted by the ALJ’s written decision. The ALJ explicitly stated that he had
considered the opinion evidence in accordance with 20 C.F.R. §§ 404.1527 and
416.927 and relevant Social Security Rulings, and Lustgarten has not pointed to
any evidence in the decision or in the record as a whole to contradict that
statement. Moreover, the ALJ’s detailed discussion of Lustgarten’s medical
records, including Dr. Dekle’s treatment notes and disability opinion, makes it
clear that the ALJ did consider the factors above, including the nature, duration,
and frequency of Dr. Dekle’s examination and treatment of Lustgarten, his
specialty as a primary care physician, the somewhat conclusory nature of Dr.
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Dekle’s disability opinion, and the conflicts between Dr. Dekle’s opinion and the
record as a whole.
As to the ALJ’s determination that Dr. Dekle’s opinion was inconsistent
with Lustgarten’s other medical records, our review confirms the ALJ’s
assessment. Although Lustgarten’s medical records contain a handful of
references to lower leg or foot swelling, most of those references were before her
alleged disability onset date, in the period leading up to or during the recovery
from her foot surgery. Aside from one note to elevate her feet for two days due to
swelling and one note to elevate her right foot after surgery—both before the
alleged disability onset date—no examining physician other than Dr. Dekle
recommended that Lustgarten keep her feet elevated or noted any limitation on her
ability to sit and do sedentary work. The vast majority of Lustgarten’s many
examination notes after her alleged onset date state that she has no swelling, with
normal strength and range of motion. She was observed to walk without difficulty
and with a steady gait. And two consulting physicians who reviewed Lustgarten’s
medical records in 2013 concluded that, with normal breaks, Lustgarten could sit,
stand, and walk for six hours during an eight-hour workday. The ALJ
appropriately allocated “some weight” to the consulting physicians’ opinions,
which were medical interpretations and summaries of Lustgarten’s examination
records from the first year to 18 months after the alleged onset of her disability. In
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short, the ALJ adequately articulated good cause for discounting Dr. Dekle’s
opinion, and the ALJ’s opinion that Lustgarten had the residual functional capacity
to perform her past relevant work as a telemarketer is supported by substantial
evidence.
Lustgarten argues that the ALJ should have sought additional information
from Dr. Dekle about his opinion, and specifically about why he prescribed a cane
and how long he expected Lustgarten to use it, before assigning “little weight” to
Dr. Dekle’s opinion. Lustgarten cites Social Security Ruling 96-2p, which stated
in part that “in some instances,” additional record development “may provide the
requisite support for a treating source’s medical opinion that at first appeared to be
lacking or may reconcile what at first appeared to be an inconsistency between a
treating source’s medical opinion and the other substantial evidence in the case
record.” SSR 96-2p, 61 Fed. Reg. 34490, 34491 (July 2, 1996), rescinded effective
March 27, 2017, 2017 WL 3928305 (March 27, 2017).
Contrary to Lustgarten’s arguments, this Ruling does not mandate that the
ALJ recontact a treating physician before assigning weight to the physician’s
opinion. The Ruling states that ordinarily, “development should not be undertaken
for the purpose of determining whether a treating source’s medical opinion should
receive controlling weight if the case record is otherwise adequately developed.”
Id. Here, the record was sufficiently well developed for the ALJ to determine that
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Dr. Dekle’s opinion about Lustgarten’s work limitations was an outlier and
inconsistent with other physicians’ examinations and Lustgarten’s daily activities,
regardless of whether Dr. Dekle intended the cane prescription to be permanent.
And in any event, the additional information later provided by Dr. Dekle to the
Appeals Council—that he prescribed the cane because Lustgarten was at risk for
falls, that he expected her to use the cane for at least 12 months, and reiterating his
opinion that she would need to keep her legs elevated for most of the day to avoid
leg swelling—added nothing significant to the information already before the ALJ
regarding whether Lustgarten could perform the work of a telemarketer. Even if
the ALJ had erred in failing to recontact Dr. Dekle, therefore, any such error would
have been harmless. Cf. Diorio v. Heckler, 721 F.2d 726, 728 (11th Cir. 1983).
B.
Lustgarten also challenges the ALJ’s determination that her testimony about
her symptoms was not entirely credible. Generally, “credibility determinations are
the province of the ALJ, and we will not disturb a clearly articulated credibility
finding supported by substantial evidence.” Mitchell v. Comm’r, Soc. Sec. Admin.,
771 F.3d 780, 782 (11th Cir. 2014). Here, Lustgarten testified that she has
constant pain in her back, neck, and knees, and that she could walk only 50 or 100
feet before becoming short of breath. She testified that these symptoms prevented
her from sitting in an office chair for more than 15–30 minutes and that she had to
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spend 6–7 hours in an 8-hour day either in a recliner or propped up on the couch.
After discussing Lustgarten’s medical records, the ALJ found that Lustgarten’s
“medically determinable impairments could reasonably be expected to cause the
alleged symptoms” but that her “statements concerning the intensity, persistence
and limiting effects of these symptoms are not entirely credible.”
Substantial evidence supports this determination. As discussed above,
Lustgarten’s medical records from the four-year period between her alleged onset
date and the date of the ALJ’s decision show that no physician other than Dr.
Dekle noted any limitation on her ability to sit or recommended that she elevate
her feet for most of the day, every day. Although examination notes from that
period show that she occasionally complained of pain in her back, neck, or knees,
she was most often noted to have normal motor strength and range of motion. And
as the ALJ pointed out, Lustgarten’s daily activities during the same time period—
laundry, light cooking and housecleaning, driving, shopping, babysitting, and
periods of work activity—were also inconsistent with Lustgarten’s severe
characterization of her physical limitations.
Lustgarten contends that the ALJ should have relied on Dr. Dekle’s
statement that he had no reason to believe that Lustgarten was malingering or
embellishing her symptoms as support for her credibility. But the ALJ was
required to make his own credibility determination; he did not have to take Dr.
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Dekle’s word for whether Lustgarten accurately described the severity of her
symptoms. See id. And the ALJ had already found that Dr. Dekle’s opinion about
Lustgarten’s limitations—which presumably was based in part on his acceptance
of Lustgarten’s subjective description of her symptoms—was inconsistent with her
medical records as a whole. Because substantial evidence supports the ALJ’s
determination that Lustgarten’s physical limitations were not as extensive as she
alleged, we will not disturb the ALJ’s credibility determination. See id.
C.
Lustgarten argues that the ALJ failed to properly evaluate her headaches
during his disability analysis because he failed to discuss some reports of
headaches in her medical records and did not acknowledge a radiologist’s report of
a sinus cyst and possible brain microvasculopathy. We are not persuaded.
In determining whether a claimant can perform her past relevant work
despite her impairments, the ALJ must consider a claimant’s “entire medical
condition,” including all impairments, whether severe or not. Jamison v. Bowen,
814 F.2d 585, 588 (11th Cir. 1987); see 20 C.F.R. §§ 404.1520(e), 404.1545,
416.920(e), & 416.945. Here, the ALJ considered the reports of headaches in
Lustgarten’s medical records when making his determination regarding her
residual functional capacity. The ALJ did not designate her headaches as a severe
impairment or find that they impacted Lustgarten’s ability to work, but Lustgarten
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herself provided no evidence to support such findings. Although she listed
headaches as a medical condition that limited her ability to work in her initial
Disability Report, she did not describe the frequency or severity of her headaches,
nor did she describe how her headaches affected her ability to work or engage in
daily activities. She provided no additional information about her headaches in
subsequent Disability Reports submitted during the appeal process, and she did not
even mention headaches in the function report describing how her conditions
limited her activities, in the pain questionnaire she submitted in support of her
claim, or in her testimony at the hearing before the ALJ.
Lustgarten’s medical records from the alleged disability period are similarly
uninformative regarding any impact of her headaches on her ability to work. Her
records show that she only rarely reported having a severe headache and reported
having fewer headaches over time. In early 2011 (before her disability onset date),
Lustgarten reported that her headaches were a chronic, daily problem. In 2012, she
reported one migraine headache lasting 12 days, but she later told her primary care
physician that she got headaches only once or twice a week and took over-the-
counter pain medication for them. In 2014, she visited the emergency room
complaining of a severe headache, but during that same visit she reported that she
“rarely” got headaches. And Dr. Dekle did not mention Lustgarten’s headaches at
all in his opinion regarding her work-related limitations.
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To the extent that Lustgarten contends that the radiologist’s report of a sinus
cyst and possible brain microvasculopathy should have been considered evidence
that her headaches were disabling, we disagree. The “mere existence” of an
impairment provides no information about whether or to what extent the
impairment limits the claimant’s ability to work, nor does it undermine the ALJ’s
disability determination. Moore, 405 F.3d at 1213 n.6; see McCruter v. Bowen,
791 F.2d 1544, 1547 (11th Cir. 1986) (“the ‘severity’ of a medically ascertained
disability must be measured in terms of its effect upon ability to work”).
A claimant applying for disability benefits bears the burden of proving that
she is disabled, and to do so, she must produce evidence supporting her claim. See
20 C.F.R. § 404.1512; Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003)
(per curiam). “At step four, the claimant carries a heavy burden of showing that
his impairment prevents him from performing his past relevant work.”
Washington v. Comm’r of Soc. Sec., 906 F.3d 1353, 1359 (11th Cir. 2018).
Lustgarten presented the ALJ with no medical evidence showing that her
headaches caused or contributed to any limitation on her ability to work. And
when asked to describe the symptoms that limited her daily activities, she did not
mention headaches at all. Under the circumstances, the ALJ’s references to reports
of headaches in Lustgarten’s medical records were sufficient to show that he
considered the information that she provided related to that alleged impairment in
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determining her residual functional capacity.
IV.
Last, Lustgarten contends that the Appeals Council erred by failing to
properly consider a supplemental report from Dr. Dekle that she submitted with her
administrative appeal. The Appeals Counsel considered the evidence that
Lustgarten submitted but found that the new evidence did not provide a basis for
reversing the ALJ’s decision.
“The Appeals Council has the discretion not to review the ALJ’s denial of
benefits. But the Appeals Council ‘must consider new, material, and
chronologically relevant evidence’ that the claimant submits.” Washington v. Soc.
Sec. Admin., Comm’r, 806 F.3d 1317, 1320 (11th Cir. 2015) (per curiam) (citations
omitted). Review of the ALJ’s decision is required if the ALJ’s “action, findings,
or conclusion is contrary to the weight of the evidence currently of record.”
Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1261 (11th Cir. 2007)
(citation omitted). The Appeals Council is not required to “give a detailed
rationale for why each piece of new evidence submitted to it does not change the
ALJ’s decision.” Mitchell, 771 F.3d at 784. 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, 496 F.3d at
1262.
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In his supplemental report, Dr. Dekle explained that he prescribed a cane for
Lustgarten because she was at “extreme risk for falls,” and he expected that she
would need the cane for 12 months or longer because “her disease processes are
not reversible.” He also agreed that Lustgarten’s obesity exacerbated her
degenerative disc disease and degenerative joint disease, and that her obesity alone
could potentially result in shortness of breath, fatigue, and difficulty stooping,
bending, and reaching. He then reiterated his opinion that Lustgarten would have
difficulty sitting for six hours in an eight-hour day and that sitting for more than
two hours without elevating her legs above her heart would precipitate swelling.
Treatment records attached to the supplemental report showed that Lustgarten
complained of low back pain and tenderness in May and June 2014.
This evidence did not render the ALJ’s denial of benefits erroneous. Again,
Lustgarten failed to show that any need for a cane would prevent her from
returning to her past relevant work of telemarketing. And Dr. Dekle’s other
statements were cumulative of the opinions previously submitted to the ALJ. The
information in Dr. Dekle’s supplemental report was therefore not “new” and
“material.” See Washington, 806 F.3d at 1323 n.9.
V.
The ALJ applied the correct legal standards in evaluating Lustgarten’s
applications for Social Security and disability benefits, and his determination that
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Lustgarten is not disabled is supported by substantial evidence. And because the
ALJ’s disability determination was not contrary to the weight of the evidence
before the Appeals Council, the Appeals Council did not err in declining to review
the ALJ’s decision. We therefore affirm.
AFFIRMED.