Paul T. Delmonte v. Commissioner, Social Security Administration

Case: 14-11371 Date Filed: 09/29/2014 Page: 1 of 5

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
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No. 14-11371
Non-Argument Calendar
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D.C. Docket No. 6:12-cv-00386-RBD-GJK

PAUL T. DELMONTE,

Plaintiff-Appellant,

versus

COMMISSIONER, SOCIAL SECURITY ADMINISTRATION,

Defendant-Appellee.

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Appeal from the United States District Court
for the Middle District of Florida
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(September 29, 2014)

Before TJOFLAT, WILLIAM PRYOR and JORDAN, Circuit Judges.

PER CURIAM:

Paul Delmonte appeals an order affirming the denial of his application for
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disability benefits. See 42 U.S.C. § 405(g). Delmonte argues that the

administrative law judge gave insufficient weight to the opinion of his primary

gastroenterologist that he was disabled due to gastroparesis between June 1, 2001,

and June 30, 2007. Delmonte also challenges, for the first time, the finding that he

could work full-time. We affirm.

Good cause supported the decision of the administrative law judge to

discount three reports by Dr. Peter Balsam that the severity and frequency of

Delmonte’s abdominal pain, nausea, and vomiting were disabling. Dr. Balsam’s

opinions were contrary to Delmonte’s life activities and to objective medical

evidence. See Phillips v. Barnhart, 357 F.3d 1232, 1241 (11th Cir. 2004); 20

C.F.R. § 404.1527(c)(2). Dr. Balsam reported in January 1999 that Delmonte

“should be considered disabled from his present job” as a drafting engineer

because his symptoms were “uncontrollable,” but Delmonte remained at his job

until June 2001. In the meantime, a radiological exam revealed that Delmonte’s

small bowel emptied at a normal rate, a CT scan was unremarkable, and a renal

ultrasound revealed only renal cysts. Dr. Balsam reported for the second time in

August 2001 that Delmonte was “virtually disabled by [his] pain,” but in

November 2001, Delmonte stated that he was doing well except for a two-week

episode of pain and his endoscopy revealed only minor erosions in the antrum of

his stomach and his duodenum. Dr. Balsam reported for a third time in November

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2003 that Delmonte had marked pain and moderate restrictions in his ability to

work, but Dr. Balsam was no longer Delmonte’s treating physician. In August

2003, Delmonte saw another gastroenterologist, Dr. Charles Sninsky, who

conducted a gastric emptying study in October 2003 and other medical tests, none

of which detected any abnormalities to account for Delmonte’s symptoms.

Although Dr. Balsam disputed the reliability of Dr. Sninsky’s gastric emptying

study on the ground that Delmonte was taking Erythromycin, Dr. Balsam had

diagnosed Delmonte with gastroparesis based in part on a gastric emptying study

he had undergone in 1998 while taking Erythromycin. And despite Delmonte’s

allegations that his condition was disabling until June 30, 2007, earlier that year he

worked for two months as a substitute teacher in a high school and quit because of

elevated blood pressure and anxiety, not because of his gastroparesis.

Good cause also supported the decision of the administrative law judge to

discount Dr. Balsam’s opinions that Delmonte’s symptoms were non-responsive to

treatment. Delmonte was treated by Dr. Balsam in February 2000, and did not

return for treatment for a year. See Phillips, 357 F.3d at 1241. In February 2001,

Delmonte complained that he was starting to have severe symptoms, but he

admitted that he not taken Prilosec in over a year and had not taken Domperidone

for six months. See 20 C.F.R. § 416.930 (“If you do not follow the prescribed

treatment without a good reason, we will not find you disabled . . . .”); Ellison v.

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Barnhart, 355 F.3d 1272, 1275 (11th Cir. 2003). One week after the

reintroduction of those two drugs along with Erythromycin, Delmonte reported

having temporary relief. Dr. Balsam added Domperidone and Ambien to

Delmonte’s regimen, and in March 2001, Delmonte reported feeling “much

better.” In November 2001, Delmonte told Dr. Balsam that Darvocet helped to

alleviate his pain, and Delmonte did not seek further treatment for his condition

until August 2003, when he visited Dr. Sninsky. Delmonte told Dr. Sninsky that

he would sometimes go weeks without pain and took Nexium only intermittently.

Substantial evidence supports the finding of the administrative law judge

that Delmonte has the residual functional capacity to perform sedentary work.

Delmonte alleged that the symptoms and pain caused by his gastroparesis were

disabling, but Delmonte testified that he would use the computer when his stomach

bothered him, which is consistent with the finding that he was capable of

performing his past work at a computer drafting engineering plans. See 20 C.F.R.

§ 404.1567(a). Delmonte’s condition did not interfere with his ability to work as a

substitute teacher, nor did it prevent him from driving his vehicle, going shopping,

running errands, preparing meals, or caring for his personal needs. Although Dr.

T. Schmidt and Dr. David Kitay performed residual functional assessments and

opined that Delmonte was capable of performing light or medium work, the

administrative law judge gave those assessments “limited weight” in the light of

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Delmonte’s “subjective allegations of pain” and the effects that his condition

would have on his stamina.

Delmonte makes two arguments that he failed to present to the district court.

First, Delmonte argues that he can perform only part-time instead of full-time

sedentary work, but we will not consider an argument raised for the first time on

appeal. See Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1161 (11th Cir.

2004). Second, Delmonte argues that he is disabled under the medical vocational

guidelines in step five of the sequential evaluation, but those guidelines apply only

if the administrative law judge determines that a claimant is incapable of

performing his past relevant work at step four of the evaluation. See 20 C.F.R.

§ 404.1520(a)(4)(iv), (v).

We AFFIRM the denial of Delmonte’s application for benefits.

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