Sara Whitten v. Social Security Administration, Commissioner

• Court: Court of Appeals for the Eleventh Circuit
• Decided: July 10, 2019
• Docket: 18-13460
• Status: Unpublished

Opinion

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-13460 Non-Argument Calendar ________________________

D.C. Docket No. 4:17-cv-00866-VEH

SARAH WHITTEN,

Plaintiff-Appellant,

versus

SOCIAL SECURITY ADMINISTRATION, COMMISSIONER,

Defendant-Appellee.

________________________

Appeal from the United States District Court for the Northern District of Alabama ________________________

(July 10, 2019)

Before TJOFLAT, MARTIN, and FAY, Circuit Judges.

PER CURIAM: Case: 18-13460 Date Filed: 07/10/2019 Page: 2 of 13

Sarah Whitten appeals the District Court’s order affirming the decision of

the Commissioner of the Social Security Administration (“Commissioner”)

denying her application for supplemental security income. She makes three

arguments: (1) the Appeals Council erred by failing to consider new evidence she

submitted on appeal, (2) the Administrative Law Judge (“ALJ”) improperly

evaluated three medical opinions, and (3) the ALJ improperly applied our “pain

standard” in evaluating her subjective complaints.

I.

We review a social security case to determine whether the Commissioner’s

decision is supported by substantial evidence, and we review de novo whether the

correct legal standards were applied. Moore v. Barnhart, 405 F.3d 1208, 1211

(11th Cir. 2005) (per curiam). “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) (per curiam) (quoting Lewis v. Callahan, 125 F.3d 1436, 1439 (11th Cir.

1997)). If, in light of the record as a whole, substantial evidence supports the

Commissioner’s decision, we will not disturb it. Lewis, 125 F.3d at 1439.

Applying this standard of review, we will not decide the 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). If the ALJ commits an error that

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does not affect the outcome, it’s harmless and doesn’t require reversal or remand.

See Diorio v. Heckler, 721 F.2d 726, 728 (11th Cir. 1983).

II.

We consider each of Whitten’s arguments separately.

A.

First, Whitten argues that the Appeals Council erred by failing to consider

the new evidence that she submitted after the ALJ’s decision. She has two theories

for why the Appeals Council erred. The first theory is that the ALJ’s decision is

not supported by substantial evidence in light of the new evidence she submitted;

that is, she claims the new evidence undermines the ALJ’s decision. The Appeals

Council erred by not reaching the same conclusion, she says. The second theory is

that the Appeals Council did not adequately explain the weight it gave to the new

evidence (which included a medical opinion) and the reasons for that weight. We

hold that Whitten abandoned both theories by failing to adequately raise them

before the District Court.

As a general principle, we will not address an argument in a social security

appeal that has not been raised in the District Court. See Crawford, 363 F.3d at

1161. For an issue to be adequately raised in the opening brief, it must be plainly

and prominently raised and must be supported by arguments and citations to the

record and to relevant authority. See Sapuppo v. Allstate Floridian Ins. Co., 739

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F.3d 678, 681 (11th Cir. 2014). Whitten abandoned the first theory because she

did not adequately brief it before the District Court. Indeed, she mentioned the

new evidence just once in the argument section of her brief, and she buried it

within another argument. She mentioned the new evidence under this heading:

“The [ALJ] commit[ed] reversible error by failing to properly evaluate the

opinions of the nonexamining and consultative examiners.” But she submitted the

new evidence after the ALJ’s decision, so the ALJ could not have erred by failing

to consider it. Plus, Whitten cited no authority and made no legal arguments

explaining what the Appeals Council should have done with new evidence. Thus,

she abandoned the first theory. See id. at 682 (“Abandonment of an issue can also

occur when passing references appear in the argument section of an opening brief,

particularly when the references are . . . ‘buried’ within [the main] arguments.”);

id. at 681 (“We have long held that an appellant abandons a claim when he either

makes only passing references to it or raises it in a perfunctory manner without

supporting arguments and authority.”).

Whitten abandoned the second theory because she didn’t raise it—even in

passing or in a perfunctory manner—in her opening brief to the District Court.

B.

Second, Whitten argues that the ALJ improperly weighed three medical

opinions when determining her residual functional capacity (“RFC”). The ALJ

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must “state with particularity the weight given to different medical opinions and

the reasons therefor.” Winschel, 631 F.3d at 1179. An ALJ considers many

factors when weighing medical opinion evidence, including the examining

relationship, the treatment relationship, whether the opinion is supported, and

whether the opinion is consistent with the record. See 20 C.F.R. § 404.1527(c).

The ALJ may discount any medical opinion that is conclusory or inconsistent with

the record; the ALJ may also discount a medical opinion when the evidence

supports a contrary finding. See id. The ALJ is not required to refer specifically to

every piece of evidence in his decision. Dyer v. Barnhart, 395 F.3d 1206, 1211

(11th Cir. 2005) (per curiam). Physicians’ opinions about a claimant’s abilities

and restrictions are relevant evidence, but they’re not determinative because the

ALJ has the responsibility of assessing the claimant’s RFC. See 20 C.F.R.

§ 404.1527(d); Lewis, 125 F.3d at 1440.

We consider each opinion separately.

1.

Dr. Morgan examined Whitten one time and never treated her. In Dr.

Morgan’s opinion, Whitten could sit for 5 to 10 minutes, stand for 10 to 15

minutes, walk for 10 minutes, and lift or carry 5 pounds for 2 to 3 steps. The ALJ

gave partial weight to Dr. Morgan’s opinion.

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The ALJ’s decision to give partial weight to Dr. Morgan’s opinion is

supported by substantial evidence for at least three reasons.

First, Dr. Morgan’s opinion was not entitled to great weight based on a

treating relationship with Whitten because he never treated her. See Crawford, 363

F.3d at 1160 (noting that a doctor who examines a claimant just once is not a

treating physician and thus that doctor’s opinion is not entitled to great weight).

Second, Dr. Morgan’s opinion is inconsistent with his clinical findings. Dr.

Morgan found that Whitten had normal range of motion throughout her body,

except for a slight reduction in her lower back. He also found that Whitten had

normal dexterity and grip strength. Finally, Dr. Morgan found that Whitten had

full strength in her arms and legs, no significant tenderness over the knees or

elbows, and no numbness or tingling in the wrists. These findings of normal or

almost normal range of motion and strength are inconsistent with Dr. Morgan’s

opinion of Whitten’s physical limitations.

Third, Dr. Morgan diagnosed Whitten with fibromyalgia, and he apparently

based that diagnosis on Whitten’s word alone, even though no medical records

showed this diagnosis. Thus, this diagnosis is inconsistent with agency guidance

because it’s not supported by acceptable medical evidence. See SSR 12–2p, 77

Fed. Reg. 43640, 43642 (July 25, 2012).

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Whitten notes that Dr. Morgan observed “some pain behaviors” during his

evaluation, and the ALJ failed to mention this in his decision. Whitten argues that

this undermines the ALJ’s decision to discount Dr. Morgan’s opinion. We

disagree. An ALJ need not refer to every piece of evidence so long as his decision

is not a wholesale rejection that prevents us from concluding the ALJ holistically

considered the claimant’s medical condition. See Dyer, 395 F.3d at 1211. 1 That is

not the case here.

2.

Dr. Bentley examined Whitten one time and never treated her. In Dr.

Bentley’s opinion, Whitten’s psychiatric symptoms would limit her ability to

perform complex or repetitive work-related tasks. But, Dr. Bentley concluded,

Whitten should have little trouble doing simple work-related activities. The ALJ

gave partial weight to Dr. Bentley’s opinion.

The ALJ’s decision to give partial weight to Dr. Bentley’s opinion is

supported by substantial evidence for at least three reasons.

First, Dr. Bentley’s opinion was not entitled to great weight based on a

treating relationship with Whitten because he never treated her. See Crawford, 363

1 It seems that the ALJ erroneously discounted Dr. Morgan’s opinion because Dr. Morgan did not mention that Whitten received her GED. But this error was harmless because the ALJ gave at least three other reasons—all supported by substantial evidence—for discounting Dr. Morgan’s opinion. See Diorio, 721 F.2d at 728 (noting that an error is harmless when it doesn’t affect the rest of the analysis or the outcome). 7 Case: 18-13460 Date Filed: 07/10/2019 Page: 8 of 13

F.3d at 1160 (noting that a doctor who examines a claimant just once is not a

treating physician and thus that doctor’s opinion is not entitled to great weight).

Second, two of Dr. Bentley’s diagnoses were based solely on Whitten’s

subjective complaints and are not supported by other evidence in the record. For

example, he noted that Whitten had “probable borderline intellectual functioning,”

but he never tested Whitten’s intelligence functioning. Dr. Bentley also diagnosed

Whitten with post-traumatic stress disorder (“PTSD”) stemming from sexual abuse

that she was subjected to as a child. Dr. Bentley said “[t]here has been continuing

evidence of flashbacks and nightmares as well as intrusive thoughts.” But none of

Whitten’s treating providers—before or after Dr. Bentley’s evaluation—diagnosed

her with PTSD. Nor did Whitten complain of PTSD symptoms to her treating

providers. She did complain of hallucinations that happened mostly while

sleeping, but she believed a new medication caused the hallucinations. Indeed, she

denied hallucinating before she began taking the medication.

Third, Dr. Bentley’s opinion is not consistent with other evidence in the

record. For example, he concluded Whitten’s psychiatric symptoms would limit

her ability to perform repetitive work-related tasks. But Whitten testified that she

could concentrate well enough to repeatedly put pencils in boxes. And other

medical records show that she had normal thought process, thought content,

cognition, and memory.

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Whitten argues that the ALJ erred when he found that she can perform

simple, routine, repetitive tasks. After all, Dr. Bentley said that Whitten’s

psychiatric symptoms would limit her ability to do repetitive tasks. But Dr.

Bentley’s opinion wasn’t determinative because it was the ALJ’s responsibility to

assess Whitten’s RFC. See 20 C.F.R. § 404.1527(d); Lewis, 125 F.3d at 1440.

And Whitten herself testified that she could do repetitive tasks. 2

3.

Dr. Estock was the state agency medical consultant who reviewed Whitten’s

medical records and evaluated her mental RFC. In Dr. Estock’s opinion, Whitten

could complete an eight-hour workday, so long as she was given all customary

breaks. He noted that she would function “best” with a flexible schedule in a

“well-spaced work setting.” Finally, Dr. Estock said Whitten could tolerate “non-

intense interaction with members of the general public and coworkers.” The ALJ

gave great weight to Dr. Estock’s opinion.

Whitten argues that the ALJ’s decision to give Dr. Estock’s opinion great

weight is not supported by substantial evidence because Dr. Estock was not a

treating physician and because he reviewed an incomplete record. She is right that

2 The ALJ also discounted Dr. Bentley’s opinion because Dr. Bentley did not mention that Whitten received her GED. This was an error, but it was harmless because the ALJ gave other reasons—all supported by substantial evidence—for discounting Dr. Bentley’s opinion. See Diorio, 721 F.2d at 728 (explaining that an error is harmless when it doesn’t affect the rest of the analysis or the outcome). 9 Case: 18-13460 Date Filed: 07/10/2019 Page: 10 of 13

Dr. Estock was not a treating physician, but that’s not conclusive. It’s just one

factor the ALJ considers. See 20 C.F.R. 404.1527(c) (listing factors). Another

factor the ALJ considers is how consistent a medical opinion is with the entire

record. Id. § 404.1527(c)(4). Here, the ALJ found that Dr. Estock’s opinion was

consistent with the entire record, and we agree. Consistent with Dr. Morgan

findings, Dr. Estock concluded that Whitten could maintain basic standards of

hygiene and grooming. In turn, he concluded that she could complete an eight-

hour workday so long as she received all customary breaks. Consistent with Dr.

Bentley’s findings, Dr. Estock concluded that Whitten could complete simple tasks

but would have difficulty performing detailed tasks.

Whitten is also correct that the record Dr. Estock reviewed did not include

the new evidence that she submitted after the ALJ’s decision. But nothing in the

new evidence contradicts Dr. Estock’s opinion, and Whitten’s own testimony is

consistent with Dr. Estock’s opinion. Thus, substantial evidence supports the

ALJ’s decision to give great weight to Dr. Estock’s opinion because it’s consistent

with the entire record.

Next, Whitten argues that the ALJ’s RFC determination failed to fully

account for Dr. Estock’s opinion. Specifically, she says the ALJ left out

limitations related to a well-spaced work setting, a flexible day schedule, and

casual, non-intense interaction with the general public and coworkers. Dr. Estock

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said only that Whitten would function “best” in a well-spaced work setting; he did

not say that she required a well-spaced work setting to function at all. Thus, the

ALJ did not err by leaving out that limitation. And the ALJ properly accounted for

the flexible schedule and non-intense interaction with people. On top of normal

workday breaks, the ALJ found that Whitten would be off task five percent of an

eight-hour workday. The ALJ also found that Whitten could frequently interact

with coworkers, but he noted that she should work in small groups and that any

criticism should be constructive and non-confrontational. This argument fails.

C.

Third, Whitten argues that the ALJ improperly applied our “pain standard”

in evaluating her subjective complaints. A two-part “pain standard” applies when a

claimant attempts to establish disability through his or her own testimony of pain

or other subjective symptoms. Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir.

2002) (per curiam). The pain standard requires (1) evidence of an underlying

medical condition, and (2) either (a) objective medical evidence that confirms the

severity of the alleged pain arising from that condition or (b) the objectively

determined medical condition must be severe enough that it can reasonably be

expected to cause the alleged pain. 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

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be obvious as to the credibility finding. See Foote v. Chater, 67 F.3d 1553, 1561–

62 (11th Cir. 1995) (per curiam). A reviewing court will not disturb a clearly

articulated credibility finding with substantial supporting evidence in the record.

Id. at 1562.

Here, the ALJ found that Whitten’s medical impairments could reasonably

be expected to cause her complained-of symptoms. But he found that her

testimony about the intensity, persistence, and limiting effects of her symptoms

was not entirely credible. Doing so, the ALJ applied the correct legal standard.

See 20 C.F.R. § 416.929(c)(1) (“When the medical signs or laboratory findings

show that you have a medically determinable impairment(s) that could reasonably

be expected to produce your symptoms, such as pain, we must then evaluate the

intensity and persistence of your symptoms so that we can determine how your

symptoms limit your capacity for work . . . .”).

Substantial evidence supports the ALJ’s credibility finding. Whitten’s

complaints about her knee and shoulder were not supported by clinical findings.

And while she alleged that her depression caused certain symptoms, the record

shows that she sometimes denied any symptoms flowing from anxiety or

depression.

The ALJ did not err in applying our pain standard when evaluating

Whitten’s subjective complaints.

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III.

The judgment of the District Court is

AFFIRMED.