USCA11 Case: 20-14025 Date Filed: 07/12/2021 Page: 1 of 19
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 20-14025 Non-Argument Calendar ________________________
D.C. Docket No. 4:20-cv-00025-CLS
OTIS STOWE,
Plaintiff-Appellant,
versus
SOCIAL SECURITY ADMINISTRATION, COMMISSIONER,
Defendant-Appellee.
________________________
Appeal from the United States District Court for the Northern District of Alabama ________________________
(July 12, 2021)
Before MARTIN, JORDAN, and ANDERSON, Circuit Judges.
PER CURIAM: USCA11 Case: 20-14025 Date Filed: 07/12/2021 Page: 2 of 19
Otis Stowe appeals the district court’s order affirming the Commissioner of
Social Security’s denial of his applications for a period of disability and disability
insurance benefits. Mr. Stowe raises three issues on appeal. First, he asserts that the
administrative law judge (“ALJ”) did not properly apply the pain standard to his
testimony and that he should have more fully developed the record regarding his
testimony about his medication’s side effects. Second, he contends that the ALJ
failed to adequately address and weigh the opinions of treating physician Dr.
William Stewart and state agency consultant Dr. Sathyan Iyer. Finally, he argues
that the ALJ’s finding that he retains residual functional capacity (“RFC”) to perform
light work was not supported by substantial evidence. We address each issue in turn.
I
Mr. Stowe applied for a period of disability and disability insurance benefits
(“DIB”) in August of 2016, stating an alleged onset date of April of 2016. In his
disability report, he declared that he had stopped working due to bulging discs in his
lower back and that he was being prescribed hydrocodone by Dr. Stewart for pain.
A function report, filed in September of 2016, indicated that Mr. Stowe struggled
with daily activities and had trouble walking. He used crutches, canes, and a brace—
only the last of which was prescribed by a doctor. Mr. Stowe’s employment history
report indicated that he had previously worked as a truck driver and laborer in jobs
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which required him to lift jackhammers, use forklifts, pour concrete, and write
reports.
In March of 2017, the SSA denied Mr. Stowe’s DIB claim after concluding
that he could indeed perform light work. The state agency consultant, Dr. Marcus
Whitman, opined that Mr. Stowe could occasionally lift or carry up to 20 pounds;
that he could frequently lift or carry up to 10 pounds; and that he could stand, walk,
or sit for 6 hours out of a normal workday. Dr. Whitman also said that Mr. Stowe
could climb ramps or stairs occasionally and that he could occasionally balance,
kneel, or crawl—but that he could never climb ladders, ropes, or scaffolds. Dr.
Whitman also discussed Mr. Stowe’s environmental limitations, which include
aversions to extreme cold, humidity, and vibration, as well as a need to avoid all
exposure to hazards such as machinery or heights. After the initial denial of benefits,
Mr. Stowe requested a hearing before an ALJ.
At a hearing in November of 2018, Mr. Stowe testified that he was injured on
April 24, 2016, when a concrete chute buckled and fell on top of him. He said that
his surgery, in November of 2016, was not effective.
Mr. Stowe testified that he had lost his commercial drivers’ license after being
unable to pass a physical exam and that he could not work full time anymore due to
back pain following surgery. He testified that he took medicine to manage his pain,
that he required help from his wife to dress in the morning, and that he had a hard
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time lifting his arms. He said his pain was a six or seven out of ten without
medication, and that the medication reduced it to a five but made him drowsy. He
had not seen a doctor about the pain in his arms. He attended the hearing using a
cane, which he said he had used since his injury in 2016. Dr. William Stewart, the
treating physician, had recommended that Mr. Stowe use the cane, but he had not
prescribed it.
At the hearing, the ALJ heard from a vocational expert. The expert testified
that a hypothetical individual with the same age, education, experience level, and
limitations as Mr. Stowe could not perform his past work but that such an individual
would be able to work as a marker, routing clerk, inspector, or hand packer.
Mr. Stowe submitted medical evidence from several doctors in support of his
claims. In July of 2016, Mr. Stowe reported lower back and bilateral hip pain to Dr.
Stewart, his treating physician at the Northeast Orthopedic Clinic, P.C. Mr. Stowe
had surgery in early November of 2016, and following surgery, he reported to Dr.
Stewart that he no longer had leg pain and only had lower back pain.
On November 19, 2016, Dr. Sathyan Iyer—acting as a state agency
consultant—saw Mr. Stowe. Dr. Iyer reported that Mr. Stowe could not walk
without a cane, and that he could not walk on his heels, tiptoes, or squat, due to a
balance issue. Due to the balance issue, Dr. Iyer could not evaluate Mr. Stowe’s full
range of motion in his spine. Still, Dr. Iyer concluded that Mr. Stowe would have
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significant impairment of functions requiring standing, walking, climbing, working
at heights, working around moving machinery, bending, lifting, pushing, pulling,
and overhead activities. But, Dr. Iyer said, Mr. Stowe did not appear to have any
significant limitation of functions involving sitting, handling, hearing, or speaking.
Mr. Stowe returned to Dr. Stewart in late 2016 and early 2017. In those
months, Dr. Stewart reported that Mr. Stowe’s symptoms had slightly improved and
that he was not in acute distress. He also expressed confusion over Mr. Stowe’s
continued complaints of back pain. By a March 2017 visit, Mr. Stowe’s back was
responding to physical therapy, and he reported a pain level of around three or four.
In June of 2017, Dr. Stewart noted that Mr. Stowe was alert with a normal posture
and gait, and that his medication dosage had been decreased due to the side effect of
nausea. A few months later, Dr. Stewart opined that Mr. Stowe was “maxed out” in
terms of physical therapy and that more surgery would not be effective.
In July of 2017, Mr. Stowe had his permanent medical impairment evaluation
for worker’s compensation. He received an impairment rating of 12 percent.
Dr. Stewart gave Mr. Stowe his final evaluation in August of 2017. Based on
the impairment rating, Dr. Stewart stated that Mr. Stowe was not rated for permanent
disability but was limited to sedentary light duty capacity, which might require Mr.
Stowe to be repositioned or reassigned in the work force.
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Four months later, Dr. Stewart saw Mr. Stowe for complaints of shoulder pain.
An x-ray revealed severe bilateral impingement, and Dr. Stewart administered a
corticosteroid injection. In the following months, Mr. Stowe continued to complain
of back and shoulder pain to various doctors.
In December of 2018, the ALJ denied Mr. Stowe’s applications. The ALJ
found that Mr. Stowe had severe impairments of back degenerative disc disease and
bilateral shoulder degenerative joint disease. The ALJ found that the other
conditions were non-severe, and that neither of Mr. Stowe’s severe impairments
amounted to a specified listing.
The ALJ next found that Mr. Stowe had the RFC to perform light work with
the following limitations: occasional climbing of ramps or stairs; no climbing of
ladders, ropes, or scaffolds; occasional reaching with his right arm but no reaching
with his left arm; no concentrated exposure to cold, humidity, and vibration; and no
exposure to hazards such as open flames, unprotected heights, and moving
machinery. The ALJ noted that Mr. Stowe had walked with a normal gait since
August of 2017, and that his medication was effective. The ALJ also noted that in
June 2017, Mr. Stowe had decreased his dose of pain medication due to the side
effects of nausea and vomiting.
The ALJ gave Dr. Whitman’s opinion (which limited Mr. Stowe to light work
with some postural and environmental restrictions) substantial weight because it was
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consistent with the objective medical evidence. But the ALJ gave little weight to
Dr. Iyer’s opinion that Mr. Stowe had a significant impairment of function,
reasoning that it had occurred just two weeks after Mr. Stowe’s surgery and therefore
was too soon of an examination to be reliable.
The ALJ further found that Mr. Stowe was unable to perform any past relevant
work, but that he was not disabled because there were jobs that existed in significant
numbers that he could still perform given his RFC. The ALJ based his decision on
the vocational expert’s testimony that Mr. Stowe could work jobs such as a marker
or inspector. Accordingly, the ALJ found that Mr. Stowe had not been disabled
since the alleged onset date.
Mr. Stowe sought review of the ALJ’s decision. He submitted additional
evidence to the Appeals Council—specifically, an Alabama handicap parking pass
application from July of 2019, in which a doctor declared that Mr. Stowe could not
walk unassisted, was severely limited in his ability to walk due to an orthopedic
condition, and had a long-term disability. The Appeals Council denied Mr. Stowe’s
request for review.
Mr. Stowe then filed a complaint in district court, arguing that the Appeals
Council’s review was conclusory because it failed to discuss the new evidence he
submitted. He also argued that the ALJ’s finding was not based upon proper
evidence and was not determined by proper legal standards.
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Specifically, Mr. Stowe argued (1) that the ALJ did not show good cause for
failing to assign the proper weight to Dr. Stewart’s opinion, which was that Mr.
Stowe was restricted to jobs with “sedentary light duty activity capacity”; (2) that
the RFC finding that he could perform light work was not supported by substantial
evidence and was contrary to the opinions of Drs. Iyer and Stewart; (3) that the ALJ
improperly applied the pain standard; (4) that the ALJ did not adequately consider
his testimony regarding the side effects of his pain medication; and (5) that the RFC
finding was not based on substantial evidence because the VE testimony was the
product of a flawed hypothetical.
The district court affirmed the ALJ’s decision, and Mr. Stowe appealed.
II
We review a Social Security case to determine whether the Commissioner’s
decision is supported by substantial evidence and review de novo whether the correct
legal standards were applied. See Moore v. Barnhart, 405 F.3d 1208, 1211 (11th
Cir. 2005). Substantial evidence is any relevant evidence, greater than a scintilla,
that a reasonable person would accept as adequate to support a conclusion. See
Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997). If, in light of the record
as a whole, substantial evidence supports the Commissioner’s decision, we will not
disturb it. See id. at 1439. Under this standard of review, we will not decide the
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facts anew, make credibility determinations, or re-weigh the evidence. See Winschel
v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011).
An individual claiming DIB must prove that he is disabled. See Jones v. Apfel,
190 F.3d 1224, 1228 (11th Cir. 1999). An ALJ uses a five-step, sequential
evaluation process to determine whether a claimant is disabled. See Winschel, 631
F.3d at 1178. If an ALJ finds a claimant disabled or not disabled at any given step,
the ALJ makes the determination or decision and does not proceed to the next step.
See 20 C.F.R. § 404.1520(a)(4). At step four of the sequential analysis, the ALJ
must assess and determine a claimant’s RFC by considering all relevant medical and
other evidence. See 20 C.F.R. §§ 404.1520(e), 404.1527(e), 404.1546(c). See also
Phillips v. Barnhart, 357 F.3d 1232, 1238 (11th Cir. 2004). An RFC is the most a
claimant can do despite his restrictions, not the least. See SSR 96-8p, 61 Fed. Reg.
34,474-05 (July 2, 1996).
III
Mr. Stowe first argues that the ALJ failed to consider or discuss his testimony
about the side effects of his pain medication. He argues that the ALJ did not
specifically address his testimony that his pain medication “knocks [him] out.” The
Commissioner responds that the ALJ was not specifically required to discuss every
portion of Mr. Stowe’s testimony, and that, in any event, the ALJ referred in his
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decision to Mr. Stowe’s medications and reported side effects. The Commissioner
further argues that any error in omitting a discussion of this testimony is harmless.
A three-part “pain standard” applies when a claimant attempts to establish
disability through his own testimony of pain or other subjective symptoms. See
Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002). The pain standard requires
evidence of an underlying medical condition, and either objective medical evidence
that confirms the severity of the alleged pain arising from that condition or a showing
that the objectively determined medical condition is of such a severity that it can be
reasonably expected to give rise to the alleged pain. See id. Where an ALJ decides
not to credit a claimant’s testimony about pain, the ALJ must articulate specific and
adequate reasons for doing so, or the record must be obvious as to the credibility
finding. See Foote v. Chater, 67 F.3d 1553, 1561-62 (11th Cir. 1995). A reviewing
court will not disturb a clearly articulated credibility finding with substantial
supporting evidence in the record. See id. at 1562. Credibility findings do not need
to cite “particular phrases or formulations” to be adequate. Id. (quotation marks
omitted).
A claimant’s subjective symptoms, such as pain, include the effectiveness and
side effects of any medications for those symptoms. See 20 C.F.R.
§§ 404.1529(c)(3)(iv), 416.929(c)(3)(iv). We have previously concluded that an
ALJ’s failure to inquire further into the side effects of a counselled claimant’s
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medications did not deprive her of a meaningful opportunity to be heard when the
only indication of side effects was her statement that her medication made her
drowsy. See Cherry v. Heckler, 760 F.2 1186, 1191 n.7 (11th Cir. 1985)
(representation by counsel at an administrative hearing is relevant in analyzing
whether a claimant had a meaningful opportunity to be heard). Indeed, an ALJ is
not required to discuss every piece of evidence, so long as the ALJ’s decision is not
a broad rejection and there is enough for us to conclude that the ALJ considered the
medical condition as a whole. See Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir.
2005).
In this case, the ALJ properly applied the pain standard to Mr. Stowe’s
testimony. The ALJ clearly articulated specific and adequate reasons for not fully
crediting Mr. Stowe’s testimony regarding his own pain. See Foote, 67 F.3d at 1561-
62 (“If the ALJ decides not to credit a claimant’s testimony as to [his] pain, he must
articulate explicit and adequate reasons for doing so.”) Here, the ALJ noted that
while Mr. Stowe’s medically determinable impairments could be reasonably
expected to cause the symptoms alleged in his testimony, the intensity, persistence,
and limiting effects of those symptoms were not entirely consistent with the medical
evidence in the record. For example, the ALJ pointed out that Mr. Stowe had used
a cane and expressed difficulty walking at his worker’s compensation impairment
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evaluation, despite Dr. Stewart’s observations, shortly before and shortly after that
evaluation, that Mr. Stowe had a normal posture and gait.
“A clearly articulated credibility finding with substantial supporting evidence
in the record will not be disturbed by a reviewing court.” Foote, 67 F.3d at 1562.
We therefore decline to disturb the ALJ’s credibility finding, as there is substantial
supporting evidence in the record. For example, Mr. Stowe showed up to the hearing
using a cane even though he was never prescribed one, and even though doctors had
reported a normal gait and posture. Moreover, Dr. Stewart’s notes indicate that Mr.
Stowe responded positively to the back surgery and that he improved afterwards in
response to physical therapy and pain medication. Finally, despite Mr. Stowe’s
testimony that his pain medicine knocked him out, Dr. Stewart and other providers
repeatedly noted that he was clinically alert. And the objective medical record
evidence showed that Mr. Stowe reported multiple times that he had no problems
with his medications.
Nor did the ALJ err by failing to develop the record further regarding the side
effects of Mr. Stowe’s medication in response to his testimony. Mr. Stowe, as the
claimant, had the burden of proving that he is disabled. See Moore, 405 F.3d at
1211. At the hearing, he had the benefit of an attorney to help him develop the
record regarding the side effects of his medication. See Cherry v. Heckler, 760 F.2d
1186, 1191 n.7 (11th Cir. 1985). Cf. Cowart v. Schweiker, 662 F.2d 731, 737 (11th
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Cir. 1981) (holding that ALJ failed to fully develop the record by failing to elicit
testimony or make findings regarding the side effects of a pro se claimant’s
medications). And the ALJ did try to develop the record after hearing Mr. Stowe’s
testimony that his pain medication knocked him out, resulting in Mr. Stowe further
testifying that he took the medication that knocked him out only at night and that he
took other pain medication during the day. As we have said, “there is no rigid
requirement that the ALJ specifically refer to every piece of evidence in his
decision.” Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005).
In sum, substantial evidence supported the ALJ’s credibility finding. The ALJ
did not err by failing to develop the regard more fully in light of Stowe’s testimony
regarding the side effects of his medication, as Stowe was represented at the hearing
and the objective medical evidence showed that Stowe did not have issues with his
medication. We therefore affirm on this ground.
IV
Mr. Stowe next argues that the ALJ failed to give proper weight to the opinion
of Dr. Stewart, his treating orthopedic physician, and to the opinion of the state
agency consultant, Dr. Ayer. He asserts that the ALJ ignored both physicians’
opinions and instead substituted his own without sufficient legal explanation. The
Commissioner responds that Dr. Stewart’s August 2017 treatment record and Dr.
Iyer’s 2016 opinion do not undermine the ALJ’s decisions. The Commissioner
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notes, first, that medical source opinions that go to the extent of a claimant’s
disability and would be dispositive of a case are not medical opinions; and second,
that the opinion of a non-treating doctor such as Dr. Iyer is not entitled to deference
or special consideration. Therefore, the Commissioner argues, the ALJ did not need
to show good cause for the weight assigned to Dr. Iyer’s opinion. And, the
Commissioner adds, the ALJ’s decision to assign Dr. Iyer’s opinion little weight is
supported by the fact that Dr. Iyer examined Mr. Stowe shortly after his back
surgery, before other evidence showed improvement with conservative treatment.
As to Dr. Stewart, the Commissioner concedes that the ALJ did not assign a
specific weight to Dr. Stewart’s discussion of the 12 percent impairment rating but
argues that this does not warrant remand. This is especially the case, the
Commissioner says, because the ALJ extensively discussed Dr. Stewart’s treatment
notes—including his statements about the impairment rating, and how Mr. Stowe
received the 12 percent impairment rating after presenting inconsistent symptoms at
that evaluation. Finally, the Commissioner argues that the ALJ’s decision was not
inconsistent with Dr. Stewart’s discussion of the 12 percent impairment rating,
because Dr. Stewart observed that Mr. Stowe was alert and had a normal posture and
gait, stated that Mr. Stowe did not rate for a permanent disability, and noted that Mr.
Stowe could return to work under certain restrictions.
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“Medical opinions are statements from acceptable medical sources that reflect
judgments about the nature and severity of [the claimant’s] impairments, including
[the claimant’s] symptoms, diagnosis and prognosis, what [the claimant] can still do
despite impairments, and [the claimant’s] physical or mental restrictions.” 20 C.F.R.
§ 416.927(a)(1). State agency medical or psychological consultants are considered
“experts in Social Security disability evaluation,” and the ALJ must consider and
assign weight to their opinions in the same manner as any other medical source. See
20 C.F.R. §§ 404.1527(f)(2), 416.927(f)(2). Treatment notes can constitute medical
opinions if they contain the content set out in 20 C.F.R. § 416.927(a)(1). See
Winschel, 631 F.3d at 1179. The ALJ must state with particularity the weight given
to different medical opinions and the supporting reasons. Id.
The Social Security Regulations define a “treating source” as a medical
source, including a physician, who has provided the claimant with medical treatment
and has, or previously had, an ongoing treatment relationship with the claimant. See
20 C.F.R. § 404.1502. The opinion of a treating physician “must be given
substantial or considerable weight unless ‘good cause’ is shown to the contrary.”
Phillips, 357 F.3d at 1240 (citation omitted). Good cause exists when (1) the treating
physician’s opinion was not supported by the evidence; (2) the evidence supported
a contrary finding; or (3) the treating physician’s opinion was conclusory or
inconsistent with his own medical records. See Winschel, 631 F.3d at 1179. When
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good cause exists, the ALJ may disregard a treating physician’s opinion, but must
clearly articulate the reasons for doing so. See id. The failure to do so is reversible
error. See Lewis, 125 F.3d at 1440. Opinions on issues that constitute administrative
findings that are dispositive of a case and would direct the determination of disability
are not medical opinions, and instead are issues reserved for the Commissioner. See
20 C.F.R. §§ 404.1527(d), 416.927(d). Such opinions are not entitled to any special
significance. See §§ 404.1527(d)(3), 416.927(d)(3). Here, the ALJ properly
discussed and weighed the opinions of Drs. Iyer and Stewart.
With respect to Dr. Iyer, the ALJ stated that he gave the opinion little weight
and articulated the reasons for doing so. The ALJ said he found Dr. Iyer’s opinion
was not reliable given how soon Dr. Iyer saw Mr. Stowe after his back surgery. [AR
at 65]. Dr. Iyer was not a treating physician, so the ALJ did not have to show good
cause for giving the opinion less than substantial or considerable weight.
Dr. Stewart was a treating physician, but the ALJ did not need to discuss Dr.
Stewart’s comments on Mr. Stowe’s impairment evaluation. Those comments
(about how Mr. Stowe’s 12 percent impairment rating would limit him to sedentary
work) would direct the determination of disability and therefore do not constitute a
medical opinion. See 20 C.F.R. §§ 404.1527(d), 416.927(d). Accordingly, the
comments are not entitled to any special significance. See 20 C.F.R. §§
404.1527(d)(3), 416.927(d)(3). In any event, the ALJ did discuss Dr. Stewart’s notes
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following Mr. Stowe’s impairment evaluation in recognizing that Mr. Stowe
presented more severe symptoms at his impairment evaluation than at his visits to
Dr. Stewart. Dr. Stewart’s notes, like the ALJ’s final decision, concluded that Mr.
Stowe was not permanently disabled and that he could be relocated within the
workforce.
We therefore affirm on this ground as well.
V
Finally, Mr. Stowe argues that the ALJ’s RFC finding that he could perform
light work with limitations was conclusory. He asserts that the ALJ simply
summarized the evidence without providing a narrative discussion about why he
reached the RFC finding that Mr. Stowe could perform light work with limitations.
Mr. Stowe says the ALJ failed to discuss his ability to perform sustained work
activities in an ordinary workday, in violation of SSR 96-8p (requiring the
adjudicator, in assessing RFC to “discuss the individual’s ability to perform
sustained work activities in an ordinary work setting on a regular and continuing
basis . . . and describe the maximum amount of each work-related activity the
individual can perform based on the evidence available in the case record”). He
argues that the record did not support a finding that he could perform light work and
that the ALJ’s decision was not based on substantial evidence. And Mr. Stowe
summarily asserts—in two sentences and without citing any law—that the VE’s
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testimony was not substantial evidence because it was based on a flawed
hypothetical.
As an initial matter, Mr. Stowe has abandoned his argument that the VE’s
testimony did not amount to substantial evidence. In his initial brief he raises that
issue in only two sentences without citing any supporting authority. See Sapuppo v.
Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014) (a party abandons a
claim not adequately briefed on appeal and fails to adequately brief claim when he
raises it in a perfunctory manner without supporting arguments or authority).
As for the rest of Mr. Stowe’s argument, in formulating an RFC, the ALJ
considers a claimant’s “ability to meet the physical, mental, sensory, and other
requirements of work.” 20 C.F.R. § 404.1545(a)(4). The ALJ examines all relevant
medical and other evidence, including “any statements about what [the claimant] can
still do that have been provided by medical sources” and “descriptions and
observations” by the claimant, his family, his neighbors, his friends, or others, of his
limitations, including limitations resulting from pain. 20 C.F.R. § 404.1545(a)(3).
The RFC finding must include a narrative discussion describing how the evidence
supports the ALJ’s conclusion, citing specific medical facts and nonmedical
evidence and discussing the claimant’s ability to perform sustained work activities
in an ordinary work setting on a regular and continuing basis. See SSR 96-8p, 61
Fed. Reg. 34,478 (July 2, 1996).
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Here, the ALJ’s RFC finding and ultimate decision were not conclusory and
were based on substantial evidence. The ALJ discussed in narrative form Mr.
Stowe’s recovery from back surgery and the eventual presentment of his bilateral
shoulder pain. See SSR 96-8p. In this discussion, the ALJ cited specific medical
facts—including Dr. Stewart’s extensive treatment notes, state agency consultant
opinions, Mr. Stowe’s records from Cherokee Pain Management, and Mr. Stowe’s
own hearing testimony. The ALJ discussed how Mr. Stowe’s back responded to
treatment—specifically, how treatment increased Mr. Stowe’s abilities to bear
weight and walk. In making the RFC finding, the ALJ discussed Mr. Stowe’s ability
to perform light work in a working environment with certain limitations that
corresponded to Mr. Stowe’s back and shoulder impairments.
The ALJ’s RFC finding was not conclusory and was supported by substantial
evidence. Accordingly, we affirm as to this ground too.
VI
We affirm the Commissioner’s denial of Mr. Stowe’s applications.
AFFIRMED.