[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-16020 ELEVENTH CIRCUIT
AUGUST 12, 2010
Non-Argument Calendar
JOHN LEY
________________________ CLERK
D. C. Docket No. 07-00434-CV-CAR-5
BRIDGET M. SHAW,
Plaintiff-Appellant,
versus
MICHAEL J. ASTRUE,
Commissioner of
Social Security,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(August 12, 2010)
Before EDMONDSON, WILSON and MARTIN, Circuit Judges.
PER CURIAM:
Bridget M. Shaw appeals the district court’s order affirming Michael
Astrue’s (“the Commissioner”) denial of her application for Social Security
Disability Insurance (“SSDI”) and Supplemental Security Income (“SSI”) benefits,
42 U.S.C. § 1383(c)(3). On appeal, she argues that the Administrative Law Judge
(“ALJ”) did not apply the correct legal standard when he rejected the opinion of an
examining, non-treating physician, Dr. Muller, because the ALJ did not give
reasons for according his finding on limitations less weight. Second, she contends
that the ALJ erred by rejecting the opinions of Dr. Naqvi, her treating physician,
without giving adequate reasons. Finally, she contends that the ALJ should have
recontacted Dr. Naqvi if he found that there was not enough information about
Shaw’s work-related abilities. Upon review of the record, and consideration of the
parties’ briefs, we affirm.
I.
“In Social Security appeals, we review de novo the legal principles upon
which the [ALJ’s] decision is based. However, we review the resulting decision
only to determine whether it is supported by substantial evidence.” Moore v.
Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005) (per curiam) (citations omitted).
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“Substantial evidence is less than a preponderance, but rather such relevant
evidence as a reasonable person would accept as adequate to support a
conclusion.” Id. (citation omitted). We therefore will not “decid[e] the facts
anew, mak[e] credibility determinations, or re-weigh[] the evidence.” Id. (citation
omitted).
II.
An individual claiming “Social Security disability benefits must prove that
she is disabled.” Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999) (citation
omitted). The Social Security regulations outline a five-step, sequential evaluation
process to determine whether a claimant is disabled. Moore, 405 F.3d at 1211
(citation omitted); see 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The ALJ must
evaluate whether: (1) the claimant is engaged in substantial gainful employment;
(2) the claimant has a severe impairment; (3) the severe impairment meets or
equals an impairment in the Listing of Impairments; (4) the claimant has the
Residual Functional Capacity (“RFC”) to perform past relevant work; and (5) in
light of the claimant’s RFC, age, education, and work experience, there are other
jobs the claimant can perform. 20 C.F.R §§ 404.1520(a)(4), 416.920(a)(4); see
Phillips v. Barnhart, 357 F.3d 1232, 1237 (11th Cir. 2004). If the ALJ determines
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that the claimant is not disabled at any step of the evaluation process, the inquiry
ends. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
The ALJ must evaluate the claimant’s RFC, and then use that finding to
determine if the claimant can perform past work or find other work, at Steps Four
and Five. 20 C.F.R. § 404.1520(e); Phillips, 357 F.3d at 1238–39. The ALJ
makes an RFC finding based on all the evidence in the record, including medical
history, medical reports, the effects of treatment, daily activities, lay evidence,
symptoms, and medical source statements. See 20 C.F.R. §§ 404.1545(a)(3),
C.F.R. 416.945(a)(3).
III.
A. Weight of Non-Treating Physician
Shaw argues that the ALJ did not apply the correct legal standard when he
rejected the opinion of an examining, non-treating physician, Dr. Muller, because
the ALJ did not give reasons for according his finding on limitations less weight.
Procedurally, an ALJ is “required to state with particularity the weight he
[gives] the different medical opinions and the reasons therefor.” Sharfarz v.
Bowen, 825 F.2d 278, 279 (11th Cir. 1987) (per curiam). Absent such a statement,
a reviewing court cannot determine whether the ultimate decision is supported by
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substantial evidence. Hudson v. Heckler, 755 F.2d 781, 786 (11th Cir. 1985) (per
curiam) (citation omitted). However, “there is no rigid requirement that the ALJ
specifically refer to every piece of evidence in his decision, so long as the ALJ’s
decision . . . is not a broad rejection which is ‘not enough to enable [this Court] to
conclude that [the ALJ] considered her medical condition as a whole.’” Dyer v.
Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005) (per curiam) (quotation omitted)
(second alteration in original).
In this case, the ALJ found that Dr. Muller was an examining physician, not
a treating physician. An examining physician’s opinion is generally given more
weight than a non-examining physician, and more weight is generally given to a
treating physician. See 20 C.F.R. § 404.1527(d)(1)–(2). For example, little
weight is accorded to non-examining physicians where their opinions contradict
that of an examining physician. Edwards v. Sullivan, 937 F.2d 580, 584 (11th Cir.
1991). Shaw argues that the ALJ did not address Dr. Muller’s opinion that she
had poor abilities to interact with supervisors or to deal with work stress when
making the RFC finding. (AR at 32).
The ALJ did not reject Dr. Muller’s opinions explicitly or implicitly.
Rather, he made two references to Dr. Muller’s opinions, both of which were
positive. (Id. at 22, 27). The ALJ noted that he found several statements made by
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Shaw to Dr. Muller that were in direct conflict with statements made to Dr. Naqvi,
and therefore not credible. (Id. at 22). Ultimately, however, he relied on Dr.
Muller’s opinions in making an RFC limiting Shaw to light exertional work,
including work with simple instructions and no more than limited public contact.
Id. Although he did not specifically address the findings regarding poor
functionality in dealing with supervisors or stress, his RFC finding was not
inconsistent with this.1
The ALJ supported his findings with substantial evidence. Accordingly, we
find no reversible error, and affirm.
B. Weight of Treating Physician
Second, Shaw contends that the ALJ erred by rejecting the opinions of Dr.
Naqvi, her treating physician, without giving adequate reasons. The opinion of a
treating physician must be given substantial weight unless “good cause” is
demonstrated to the contrary. Crawford, 363 F.3d at 1159 (citation omitted). The
ALJ may find good cause “exists when the: (1) treating physician’s opinion was
not bolstered by the evidence; (2) evidence supported a contrary finding; or (3)
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Thus, even if the ALJ erred in failing to mention every finding made by Dr. Muller, any
such error was harmless. See Diorio v. Heckler, 721 F.2d 726, 728 (11th Cir. 1983).
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treating physician’s opinion was conclusory or inconsistent with the doctor’s own
medical records.” Phillips, 357 F.3d at 1240–41 (citation omitted).
If the ALJ does not give substantial weight to the treating physician, he
must clearly articulate his reasons for doing so. Id. (citation omitted). An opinion
on an applicant’s RFC is not a medical opinion, but rather a decision reserved to
the Commissioner, to be based on medical sources, and the physician’s opinion in
this respect is not entitled to deference. 20 C.F.R. §§ 404.1527(e), 416.927(e).
Pursuant to 20 C.F.R. § 416.927(d)(2):
If we find that a treating source’s opinion on the issue(s) of the nature
and severity of your impairment(s) is well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in your case record,
we will give it controlling weight. When we do not give the treating
source’s opinion controlling weight, we apply the factors listed in
paragraphs (d)(2)(i) and (d)(2)(ii) of this section, as well as the
factors in paragraphs (d)(3) through (d)(6) of this section in
determining the weight to give the opinion.
The factors from 20 C.F.R. § 416.927(d)(2)(i) and (ii) include length of treatment,
frequency of treatment and the overall nature and extent of treatment. Factors
from 20 C.F.R. § 416.927(d)(3)–(6) include supportability from medical signs and
laboratory reports, consistency with the record as a whole, specialization of the
doctor and other factors as necessary.
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Substantial evidence supports the ALJ’s decision to give Dr. Naqvi’s
opinion less weight. (AR at 26–27). To the extent that the ALJ rejected Dr.
Naqvi’s opinion because he found that Shaw was disabled and could not work for
twelve months, that is a legal conclusion reserved for the agency determination.
20 C.F.R. §§ 404.1527(e), 416.927(e). To the extent that the ALJ rejected Dr.
Naqvi’s opinion concerning the severity of Shaw’s symptoms in some respects, the
ALJ properly declined to give full weight to these findings because substantial
evidence supported the conclusion that they were in part conclusory or not
supported by Dr. Naqvi’s own records. (AR at 429–30, 488–89, 496–97, 501–05,
538).
The ALJ found good cause for not giving Dr. Naqvi’s opinions substantial
weight, and we affirm in this respect.
C. Recontacting the Treating Physician
Lastly, Shaw contends that the ALJ should have recontacted Dr. Naqvi if he
found that there was not enough information about Shaw’s work-related abilities.
“[A] hearing before an ALJ is not an adversarial proceeding,” and so “the ALJ has
a basic obligation to develop a full and fair record.” Graham v. Apfel, 129 F.3d
1420, 1422 (11th Cir. 1997) (per curiam) (citation omitted).
Pursuant to 20 C.F.R. § 404.1512(e)(1):
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When the evidence we receive from your treating physician or
psychologist or other medical source is inadequate for us to determine
whether you are disabled, . . . [w]e will first recontact your treating
physician or psychologist or other medical source to determine
whether the additional information we need is readily available. We
will seek additional evidence or clarification from your medical
source when the report from your medical source contains a conflict
or ambiguity that must be resolved, the report does not contain all the
necessary information, or does not appear to be based on medically
acceptable clinical and laboratory diagnostic techniques.
If the medical sources do not provide sufficient medical evidence, the ALJ
may order a physical or mental consultative examination at the government’s
expense. 20 C.F.R. § 404.1517. The decision to order one will be made only after
the Commissioner has “given full consideration to whether the additional
information needed (e.g., clinical findings, laboratory tests, diagnosis, and
prognosis) is readily available from the records of [the applicant’s] medical
sources. Id. § 404.1519a(a)(1).
Pursuant to Social Security Ruling 96-5p (July 2,1996):
if the evidence does not support a treating sources’s opinion on any
issue reserved to the Commissioner and the adjudicator cannot
ascertain the basis of the opinion from the case record, the adjudicator
must make “every reasonable effort” to recontact the source for
clarification of the reasons for the opinion.
“In evaluating the necessity for a remand, we are guided by whether the
record reveals evidentiary gaps which result in unfairness or clear prejudice.”
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Brown v. Shalala, 44 F.3d 931, 935 (11th Cir. 1995) (per curiam) (quotations
omitted). The likelihood of unfair prejudice may arise if there is an evidentiary
gap that “the claimant contends supports her allegations of disability.” Id. at 936
n.9.
The ALJ did not err in this respect. Contrary to Shaw’s argument, the ALJ
only needed to recontact Dr. Naqvi if “the adjudicator cannot ascertain the basis of
the opinion.” Soc. Sec. Rul. 96-5p. In this case, the ALJ found that Dr. Naqvi did
not adequately support his position, specifically finding that his opinion was
contradicted by other findings and that he did not explain how Shaw would be
limited. (AR at 27). In other words, the ALJ found that there was sufficient
evidence, both from Dr. Naqvi’s opinion and the record as a whole, to determine
that Shaw was not disabled and that Dr. Naqvi’s opinion was not entitled to full
weight.
The ALJ did not need to recontact Dr. Naqvi to make this determination.
Accordingly, because error did not result in unfairness or clear prejudice, we
affirm in this respect.
IV.
Because the ALJ’s decision was supported by substantial evidence, and
Shaw has shown no clear prejudice, we affirm.
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AFFIRMED.
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