Case: 19-14673 Date Filed: 07/17/2020 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-14673 Non-Argument Calendar ________________________
D.C. Docket No. 1:17-cv-21930-KMW
SANDRA SARLI,
Plaintiff–Appellant,
versus
ACTING COMMISSIONER OF SOCIAL SECURITY, Nancy Berryhill,
Defendant–Appellee.
________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(July 17, 2020)
Before WILSON, JORDAN, and ANDERSON, Circuit Judges.
PER CURIAM: Case: 19-14673 Date Filed: 07/17/2020 Page: 2 of 7
Sandra Sarli appeals following the district court’s order denying her motion
for summary judgment, granting the Social Security Commissioner’s
(“Commissioner”) motion for summary judgment, and affirming the
Administrative Law Judge’s (“ALJ”) decision denying her application for
Supplemental Security Income Benefits. On appeal, Sarli argues that: (1) the ALJ
failed to accord the proper weight to the opinions of her treating physicians; (2) the
ALJ improperly failed to state the weight it gave to the opinions of the state agency
psychological consultants; and (3) substantial evidence did not support the ALJ’s
residual functional capacity (“RFC”) findings. After careful review, we affirm.
Our review of ALJ determinations on Social Security eligibility is limited to
whether the conclusion, as a whole, is supported by substantial evidence in the
record. Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). As we have
explained, “[s]ubstantial evidence is more than a scintilla and is such relevant
evidence as a reasonable person would accept as adequate to support a
conclusion.” Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir.
2011) (quotation omitted). We “may not decide the facts anew, reweigh the
evidence, or substitute our judgment for that of the Commissioner.” Id. (brackets
omitted). A harmless error—that is, one that does not affect the ALJ’s ultimate
decision—does not constitute a ground for reversal. See Diorio v. Heckler, 721
F.2d 726, 728 (11th Cir. 1983). Additionally, as a prudential matter, a claim or
2 Case: 19-14673 Date Filed: 07/17/2020 Page: 3 of 7
argument that the plaintiff failed to brief before us is deemed abandoned, and we
will not consider the argument’s merits. Access Now, Inc. v. SW Airlines, Co., 385
F.3d 1324, 1330 (11th Cir. 2004). In that vein, we “will not address an argument
that has not been raised in the district court.” Stewart v. Dep’t of Health and
Human Servs., 26 F.3d 115, 115 (11th Cir. 1994).
To be eligible for Social Security disability benefits, the applicant bears the
burden of proving that she is disabled. Moore v. Barnhart, 405 F.3d 1208, 1211
(11th Cir. 2005). A claimant may establish that she has “a disability through [her]
own testimony of pain or other subjective symptoms.” Dyer, 395 F.3d at 1210. In
such a case, the claimant must show:
(1) evidence of an underlying medical condition and either (2) objective medical evidence that confirms the severity of the alleged pain arising from that condition or (3) that the objectively determined medical condition is of such a severity that it can be reasonably expected to give rise to the alleged pain.
Id.
In evaluating the objective medical evidence, the ALJ must give the medical
opinions of treating physicians “substantial or considerable weight,” unless good
cause exists not to. Winschel, 631 F.3d at 1179 (quotation omitted). 1 Good cause
1 Sarli argues that the ALJ erred by giving only “partial weight” to the opinion of Sandra Fujita, an Advanced Registered Nurse Practitioner. We note that the ALJ must give controlling weight only to medical opinions. See 20 C.F.R. § 404.1513(a). If a record opinion is not a medical opinion, as defined by the regulations, then the ALJ must consider that opinion but is not required to give it controlling weight. See id. In 2013, the opinions of Advanced Registered Nurse Practioners (“ARNP”) were not medical opinions as defined by the regulations. Compare 3 Case: 19-14673 Date Filed: 07/17/2020 Page: 4 of 7
exists if: (1) the treating physician’s opinion is not supported or bolstered by the
evidence; (2) other evidence supports a contrary finding; or (3) the treating
physician’s opinion was “conclusory or inconsistent with the doctor’s own medical
records.” Id. (quotation omitted). If an ALJ discredits a treating physician’s
opinion for good cause, he must “clearly articulate” his reasons for doing so. Id.
(quotation omitted).
Further, the ALJ must “state with particularity the weight given to different
medical opinions and the reasons therefor.” Id. We “will decline to affirm” an
ALJ’s opinion when he fails to state with “some measure of clarity” the weight he
gave to the medical opinions in the record. Id. (quotation marks omitted).
In evaluating a claimant’s testimony, the ALJ should consider: (1) the
claimant’s daily activities; (2) the “duration, frequency, and intensity” of the
claimant’s symptoms; (3) “[p]recipitating and aggravating factors”; (4) the
effectiveness and side effects of any medications; and (5) treatment or other
measures taken by the claimant to alleviate symptoms. 20 C.F.R.
§§ 404.1529(c)(3), 416.929(c)(3). The ALJ is to consider these factors in light of
the other evidence in the record. Id. §§ 404.1529(c)(4), 416.929(c)(4). “The
claimant’s subjective testimony supported by medical evidence that satisfies the
71 Fed. Reg. 45594 (Aug. 9, 2006) with 82 Fed. Reg. 5844-45 (Jan. 18, 2017). Accordingly, in 2013, an ALJ was not required to give controlling weight to an ARNP’s medical opinion, and we find no error in this regard. See 20 C.F.R. § 404.1513(a). 4 Case: 19-14673 Date Filed: 07/17/2020 Page: 5 of 7
standard is itself sufficient to support a finding of disability.” Holt v. Sullivan, 921
F.2d 1221, 1223 (11th Cir. 1991).
If the ALJ discredits the claimant’s testimony as to her subjective symptoms,
it “must clearly articulate explicit and adequate reasons for” doing so. Dyer, 395
F.3d at 1210 (quotation marks omitted). Such “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 of Soc. Sec., 771
F.3d 780, 782 (11th Cir. 2014).
Here, we conclude that the ALJ’s determination was supported by
substantial evidence. With respect to its decision to accord only partial weight to
the opinions of Sarli’s treating physicians, we conclude that the ALJ provided good
cause for doing so, and that those reasons were supported by substantial evidence.
See Winschel, 631 F.3d at 1179. In particular, the ALJ’s decision to accord partial
weight to the testimony of Dr.
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Case: 19-14673 Date Filed: 07/17/2020 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-14673 Non-Argument Calendar ________________________
D.C. Docket No. 1:17-cv-21930-KMW
SANDRA SARLI,
Plaintiff–Appellant,
versus
ACTING COMMISSIONER OF SOCIAL SECURITY, Nancy Berryhill,
Defendant–Appellee.
________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(July 17, 2020)
Before WILSON, JORDAN, and ANDERSON, Circuit Judges.
PER CURIAM: Case: 19-14673 Date Filed: 07/17/2020 Page: 2 of 7
Sandra Sarli appeals following the district court’s order denying her motion
for summary judgment, granting the Social Security Commissioner’s
(“Commissioner”) motion for summary judgment, and affirming the
Administrative Law Judge’s (“ALJ”) decision denying her application for
Supplemental Security Income Benefits. On appeal, Sarli argues that: (1) the ALJ
failed to accord the proper weight to the opinions of her treating physicians; (2) the
ALJ improperly failed to state the weight it gave to the opinions of the state agency
psychological consultants; and (3) substantial evidence did not support the ALJ’s
residual functional capacity (“RFC”) findings. After careful review, we affirm.
Our review of ALJ determinations on Social Security eligibility is limited to
whether the conclusion, as a whole, is supported by substantial evidence in the
record. Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). As we have
explained, “[s]ubstantial evidence is more than a scintilla and is such relevant
evidence as a reasonable person would accept as adequate to support a
conclusion.” Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir.
2011) (quotation omitted). We “may not decide the facts anew, reweigh the
evidence, or substitute our judgment for that of the Commissioner.” Id. (brackets
omitted). A harmless error—that is, one that does not affect the ALJ’s ultimate
decision—does not constitute a ground for reversal. See Diorio v. Heckler, 721
F.2d 726, 728 (11th Cir. 1983). Additionally, as a prudential matter, a claim or
2 Case: 19-14673 Date Filed: 07/17/2020 Page: 3 of 7
argument that the plaintiff failed to brief before us is deemed abandoned, and we
will not consider the argument’s merits. Access Now, Inc. v. SW Airlines, Co., 385
F.3d 1324, 1330 (11th Cir. 2004). In that vein, we “will not address an argument
that has not been raised in the district court.” Stewart v. Dep’t of Health and
Human Servs., 26 F.3d 115, 115 (11th Cir. 1994).
To be eligible for Social Security disability benefits, the applicant bears the
burden of proving that she is disabled. Moore v. Barnhart, 405 F.3d 1208, 1211
(11th Cir. 2005). A claimant may establish that she has “a disability through [her]
own testimony of pain or other subjective symptoms.” Dyer, 395 F.3d at 1210. In
such a case, the claimant must show:
(1) evidence of an underlying medical condition and either (2) objective medical evidence that confirms the severity of the alleged pain arising from that condition or (3) that the objectively determined medical condition is of such a severity that it can be reasonably expected to give rise to the alleged pain.
Id.
In evaluating the objective medical evidence, the ALJ must give the medical
opinions of treating physicians “substantial or considerable weight,” unless good
cause exists not to. Winschel, 631 F.3d at 1179 (quotation omitted). 1 Good cause
1 Sarli argues that the ALJ erred by giving only “partial weight” to the opinion of Sandra Fujita, an Advanced Registered Nurse Practitioner. We note that the ALJ must give controlling weight only to medical opinions. See 20 C.F.R. § 404.1513(a). If a record opinion is not a medical opinion, as defined by the regulations, then the ALJ must consider that opinion but is not required to give it controlling weight. See id. In 2013, the opinions of Advanced Registered Nurse Practioners (“ARNP”) were not medical opinions as defined by the regulations. Compare 3 Case: 19-14673 Date Filed: 07/17/2020 Page: 4 of 7
exists if: (1) the treating physician’s opinion is not supported or bolstered by the
evidence; (2) other evidence supports a contrary finding; or (3) the treating
physician’s opinion was “conclusory or inconsistent with the doctor’s own medical
records.” Id. (quotation omitted). If an ALJ discredits a treating physician’s
opinion for good cause, he must “clearly articulate” his reasons for doing so. Id.
(quotation omitted).
Further, the ALJ must “state with particularity the weight given to different
medical opinions and the reasons therefor.” Id. We “will decline to affirm” an
ALJ’s opinion when he fails to state with “some measure of clarity” the weight he
gave to the medical opinions in the record. Id. (quotation marks omitted).
In evaluating a claimant’s testimony, the ALJ should consider: (1) the
claimant’s daily activities; (2) the “duration, frequency, and intensity” of the
claimant’s symptoms; (3) “[p]recipitating and aggravating factors”; (4) the
effectiveness and side effects of any medications; and (5) treatment or other
measures taken by the claimant to alleviate symptoms. 20 C.F.R.
§§ 404.1529(c)(3), 416.929(c)(3). The ALJ is to consider these factors in light of
the other evidence in the record. Id. §§ 404.1529(c)(4), 416.929(c)(4). “The
claimant’s subjective testimony supported by medical evidence that satisfies the
71 Fed. Reg. 45594 (Aug. 9, 2006) with 82 Fed. Reg. 5844-45 (Jan. 18, 2017). Accordingly, in 2013, an ALJ was not required to give controlling weight to an ARNP’s medical opinion, and we find no error in this regard. See 20 C.F.R. § 404.1513(a). 4 Case: 19-14673 Date Filed: 07/17/2020 Page: 5 of 7
standard is itself sufficient to support a finding of disability.” Holt v. Sullivan, 921
F.2d 1221, 1223 (11th Cir. 1991).
If the ALJ discredits the claimant’s testimony as to her subjective symptoms,
it “must clearly articulate explicit and adequate reasons for” doing so. Dyer, 395
F.3d at 1210 (quotation marks omitted). Such “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 of Soc. Sec., 771
F.3d 780, 782 (11th Cir. 2014).
Here, we conclude that the ALJ’s determination was supported by
substantial evidence. With respect to its decision to accord only partial weight to
the opinions of Sarli’s treating physicians, we conclude that the ALJ provided good
cause for doing so, and that those reasons were supported by substantial evidence.
See Winschel, 631 F.3d at 1179. In particular, the ALJ’s decision to accord partial
weight to the testimony of Dr. Alejandro Urrutia, one of Sarli’s treating physicians,
reflected inconsistencies between Dr. Urrutia’s treatment notes and the opinion he
provided on the Medical Assessment Form. While his treatment notes indicated
that Sarli’s condition was improving, and that she had good concentration,
orientation, communication skills, and reliability, the opinion he
contemporaneously provided on the Medical Assessment Form stated that Sarli
had poor, or seriously limited, concentration, reliability, and communication skills.
5 Case: 19-14673 Date Filed: 07/17/2020 Page: 6 of 7
These inconsistencies supported the ALJ’s determination to accord partial weight
to his testimony.
We similarly find no error in the ALJ’s failure to specifically state the
weight that it gave to the state agency consulting psychologists. The ALJ’s
opinion specifically stated that Sarli’s impairments and activities were consistent
with “the opinions of the State Agency review physicians at the initial and
reconsideration levels.” Accordingly, we conclude that the ALJ clearly considered
those opinions and found that they were consistent with its findings. Moreover,
because the state agency psychological consultant opinions were consistent with
the ALJ’s ultimate determination of Sarli’s residual functioning capacity, the ALJ
committed harmless error by failing to state the weight it gave to those opinions, as
that failure would not have affected the ultimate outcome of ALJ’s decision. See
Diorio, 721 F.2d at 728.
Finally, the ALJ’s RFC finding was supported by substantial evidence. The
ALJ found that Sarli had the RFC to perform a full range of work at all exertional
levels, but with the following non-exertional limitations: Sarli is limited to simple,
routine, and repetitive tasks but not at a production-rate pace such as piece-work or
assembly-line work. She could engage in occasional interaction with supervisors,
coworkers, and the public. The medical evidence that was credited by the ALJ, as
6 Case: 19-14673 Date Filed: 07/17/2020 Page: 7 of 7
well as Sarli’s own testimony to the extent credited by the ALJ, supported the
ALJ’s findings regarding Sarli’s ability to concentrate and function in society.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.