[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-15816 ELEVENTH CIRCUIT
Non-Argument Calendar JUNE 22, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 5:09-cv-00239-MTT
WALBERT LAWTON,
llllllllllllllllllllllllllllllllllllllllPlaintiff-Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
llllllllllllllllllllllllllllllllllllllllDefendant-Appellee.
_______________________
Appeal from the United States District Court
for the Middle District of Georgia
________________________
(June 22, 2011)
Before BARKETT, MARCUS and FAY, Circuit Judges.
PER CURIAM:
Walbert Lawton appeals the district court’s order upon administrative review
affirming the Commissioner’s denial of disability insurance benefits, 42 U.S.C. §
405(g). On appeal, Lawton argues that: (1) substantial evidence does not support the
administrative law judge’s (“ALJ’s”) decision to reject the statement from one of
Lawton’s treating physicians that Lawton should not lift, push, or pull more than ten
pounds; and (2) the ALJ erred when he failed to discuss various medical opinions
from Lawton’s treating physicians. After careful review, we affirm in part, and
reverse and remand in part.
We conduct a limited review of the ALJ’s decision to determine whether it is
supported by substantial evidence and whether it is based on proper legal standards.
Crawford v. Comm’r, 363 F.3d 1155, 1158 (11th Cir. 2004). Under this standard, we
must affirm a decision that is supported by substantial evidence even if the evidence
preponderates against the Commissioner’s findings. Id. at 1158-59. Substantial
evidence is less than a preponderance, and, instead, is such relevant evidence as a
reasonable person would accept as adequate to support a conclusion. Moore v.
Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). Moreover, we may not reweigh the
evidence or substitute our judgment for that of the ALJ. Dyer v. Barnhart, 395 F.3d
1206, 1210 (11th Cir. 2005). On the other hand, we will reverse where the ALJ fails
to apply the correct law or to provide us with sufficient reasoning to allow us to
determine that the proper legal analysis has been conducted. Keeton v. Dep’t of
Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994).
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An individual claiming Social Security disability benefits must prove that he
is disabled. Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999). The Social
Security regulations provide a five-step sequential evaluation process for determining
if a claimant has proven that he is disabled. Id. A claimant must show that (1) he is
not performing substantial gainful activity; (2) he has a severe impairment; (3) the
impairment or combination of impairments meets or equals an impairment listed in
the regulations, or (4) he cannot return to past work; and (5) he cannot perform other
work based on his age, education, and experience. Phillips v. Barnhart, 357 F.3d
1232, 1237 (11th Cir. 2004); 20 C.F.R. § 404.1520.
The ALJ must determine the claimant’s residual functional capacity at both the
fourth and fifth steps of the sequential evaluation process. 20 C.F.R. § 404.1520(e).
Residual functional capacity is an assessment, based on all of the relevant evidence,
of a claimant’s remaining ability to do work despite his impairments. Lewis v.
Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997). Here, the ALJ found that Lawton
retained the residual functional capacity to perform a significant range of light work.
However, Lawton argues on appeal that, if the ALJ had properly credited the opinions
of his treating physicians, then the ALJ would have concluded that he was limited to
sedentary work only.
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As an initial matter, the Commissioner argues that Lawton cannot rely on new
evidence that he submitted to the Appeals Counsel (“AC”) because, on appeal, he has
challenged only the ALJ’s decision to deny benefits and not the AC’s decision to
deny review. If a claimant submits new, noncumulative, and material evidence to the
AC after the ALJ’s decision, the AC shall consider such evidence, but only to the
extent that it relates to the period on or before the date of the ALJ’s hearing decision.
20 C.F.R. § 404.970(b). “Material” evidence is evidence that is “relevant and
probative so that there is a reasonable possibility that it would change the
administrative result.” Milano v. Bowen, 809 F.2d 763, 766 (11th Cir. 1987)
(quotation omitted). When evidence is submitted for the first time to the AC, that
new evidence becomes part of the administrative record. Keeton v. Dep’t of Health
& Human Servs., 21 F.3d 1064, 1067 (11th Cir. 1994). If the claimant challenged
both the ALJ’s decision to deny benefits and the AC’s decision to deny review based
on the new evidence, then we will consider whether the new evidence renders the
denial of benefits erroneous. Ingram v. Comm’r, 496 F.3d 1253, 1262, 1265-66 (11th
Cir. 2007). However, if the claimant challenges only the ALJ’s decision to deny
benefits, then we will not consider evidence submitted to the AC. Falge v. Apfel, 150
F.3d 1320, 1323-24 (11th Cir. 1998).
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Here, Lawton’s initial brief on appeal contains at most a passing reference to
the AC’s decision to deny review, and a passing reference is not sufficient to preserve
an argument for review. See Rowe v. Schreiber, 139 F.3d 1381, 1382 n.1 (11th Cir.
1998) (explaining that an issue may be deemed abandoned where a party only
mentions it in passing, without providing substantive argument in support).
Moreover, Lawton’s initial brief suggests that he did not intend to challenge the AC’s
denial of review. Finally, to the extent that Lawton seeks to raise a challenge in his
reply brief, arguments raised for the first time in an appellant’s reply brief are too late
and generally will not be considered. Atwater v. Nat’l Football League Players
Ass’n, 626 F.3d 1170, 1177 (11th Cir. 2010). Thus, because Lawton did not
challenge the AC’s denial of review on appeal, we will review only the evidence that
was submitted to the ALJ. See Falge, 150 F.3d at 1323-24.
Turning to Lawton’s arguments on appeal, we first reject Lawton’s claim that
substantial evidence fails to support the ALJ’s decision to reject Dr. Appavuchetty
Soundappan’s assessment that Lawton should not lift, push, or pull more than ten
pounds because it did not “reflect the longitudinal history of impairment, treatment,
and recovery.” The ALJ should consider the following factors when determining
what weight to give to a medical opinion: (1) whether the source had examined the
claimant; (2) whether the source was a treating physician; (3) the length of the
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treatment relationship and how often the physician had examined the claimant; (4) the
nature and extent of the treatment relationship; (5) whether the medical evidence
supports the opinion; (6) consistency; (7) specialization; and (8) other relevant
factors. 20 C.F.R. § 404.1527(d). However, the ALJ is not required to explicitly
address each of those factors. Rather, the ALJ must provide “good cause” for
rejecting a treating physician’s medical opinions. See Lewis v. Callahan, 125 F.3d
1436, 1440 (11th Cir. 1997). Good cause exists “when the: (1) treating physician’s
opinion was not bolstered by the evidence; (2) evidence supported a contrary finding;
or (3) treating physician’s opinion was conclusory or inconsistent with the doctor’s
own medical records.” Phillips, 357 F.3d at 1241; Lewis, 125 F.3d at 1440.
However, a non-examining physician’s opinion, standing alone, does not constitute
substantial evidence for rejecting a treating physician’s opinion. Lamb v. Bowen, 847
F.2d 698, 703 (11th Cir. 1988).
Lawton concedes that the ALJ explained his decision to give little weight to
Dr. Soundappan’s medical opinion when the ALJ stated that early treatment records
did not reflect “the longitudinal history of impairment, treatment and recovery.” The
ALJ was permitted to discount Dr. Soundappan’s opinion based on a finding that it
was inconsistent with later medical evidence. See Phillips, 357 F.3d at 1241.
Moreover, the record contains substantial evidence supporting the ALJ’s
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determination that Dr. Soundappan’s March 2006 opinion did not reflect the overall
course of Lawton’s injury. While the record does contain some evidence that is
contrary to the ALJ’s determination, we are not permitted to reweigh the importance
attributed to the medical evidence. See Dyer, 395 F.3d at 1210.
However, we are persuaded by Lawton’s claim that the ALJ erred when it
failed to consider the following opinion evidence from two of his other treating
physicians: (1) an unsigned statement by Dr. Vance that Lawton could only engage
in sedentary work; (2) Dr. Julian M. Earls’s notation in a long-term disability
certificate that Lawton could never return to work; and (3) Dr. Earls’s notation in the
long-term disability certificate that Lawton would need medication, therapy, and
injections for the remainder of his life. In order for a statement to be characterized
as a “medical opinion,” it must be from an acceptable source and address acceptable
subject matter. 20 C.F.R. § 404.1527(a)(2). First, a medical opinion must be a
statement from a physician, a psychologist, or another “acceptable medical source.”
Id. Other acceptable medical sources do not include nurses, physicians’ assistants,
or therapists. See 20 C.F.R. §§ 404.1502 (defining acceptable medical source as
those enumerated in § 404.1513(a)); 404.1513(d)(1) (listing medical sources that fell
outside of the definition of “acceptable medical source”). Second, the doctor’s
statement must reflect his judgment about the nature and severity of the claimant’s
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impairments, including his symptoms, diagnosis, and prognosis, what he can still do
despite his impairments, and his physical or mental restrictions. Id. § 404.1527(a)(2).
A doctor’s opinion on dispositive issues reserved to the Commissioner, such as
whether the claimant is disabled or unable to work, is excluded from the definition
of a medical opinion and is not given special weight, even if it is offered by a treating
source, but the ALJ should still consider the opinion. Id. § 404.1527(e).
As noted, absent “good cause” to the contrary, an ALJ is to give the medical
opinions of treating physicians “substantial or considerable weight.” Lewis, 125 F.3d
at 1440; see also 20 C.F.R. §§ 404.1527(d)(1)-(2), 416.927(d)(1)-(2). With good
cause, an ALJ may disregard a treating physician’s opinion, but he must clearly
articulate his reasons for doing so. Phillips, 357 F.3d at 1240-41. Moreover, the ALJ
must state with particularity the weight given to different medical opinions and the
reasons therefor. Sharfarz v. Bowen, 825 F.2d 278, 279 (11th Cir. 1987). A
statement that the ALJ carefully considered all the testimony and exhibits is not
sufficient. Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir. 1981). Without an
explanation of the weight accorded by the ALJ, it is impossible for a reviewing court
to determine whether the ultimate decision on the merits of the claim is rational and
supported by substantial evidence. Id. Therefore, when the ALJ fails to state with
at least some measure of clarity the grounds for his decision, we will decline to affirm
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simply because some rationale might have supported the ALJ’s conclusion. Owens
v. Heckler, 748 F.2d 1511, 1516 (11th Cir. 1984).
In this case, the ALJ never referenced either of Dr. Earls’s opinions that
Lawton could never return to work and that he would need medications, therapy, and
injections for the remainder of his life, or the unsigned statement of Dr. Vance with
the opinion/recommendation that Lawton was limited to sedentary work only.
Moreover, both doctors’ opinions are contrary to the ALJ’s residual functional
capacity assessment because both would suggest that Lawton could not engage in a
significant range of light work. Thus, it appears that the ALJ did not give them
controlling weight. While it is possible that the ALJ considered and rejected these
opinions, he provided no explanation for the weight, or lack thereof, that he assigned
to those opinions. The ALJ did state that he had considered the opinions of Lawton’s
treating and examining physicians and incorporated those opinions in his residual
functional capacity assessment. However, a statement that the ALJ has considered
all of the opinion evidence is not sufficient to discharge his burden to explicitly set
forth the weight accorded to that evidence. See Cowart, 662 F.2d at 735. Without
a clear explanation of how the ALJ treated those opinions, we cannot determine
whether the ALJ’s conclusions were rational or supported by substantial evidence.
See id.
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The Commissioner argues that the ALJ was free to reject the “sedentary work
only” notation of Dr. Vance because it was unsigned and, thus, not a medical opinion.
However, because the ALJ did not explain why he was rejecting the opinion, this
Court cannot determine whether he rejected it for this reason or for some other,
unsupportable reason. As for the Commissioner’s argument that Dr. Earls’s opinion
that Lawton could never return to work was an opinion on an issue reserved to the
Commissioner and, thus, was not entitled to any special weight, the ALJ never said
that he was rejecting Dr. Earls’s opinion because it was not a medical opinion.
Moreover, while an ALJ is not permitted to give a treating physician’s opinion on an
issue reserved to the Commissioner controlling weight, he is required to consider it.
See 20 C.F.R. § 404.1527(e); see also SSR 96-5p. Although the ALJ is not required
to specifically refer to every piece of evidence in the record, Dyer, 395 F.3d at 1211,
he is required to explain the weight he afforded to “obviously probative exhibits,”
Cowart, 662 F.2d at 735 (quotation omitted).
Finally, the Commissioner argues that Dr. Earls’s opinion that Lawton would
need medications, therapy, and injections for the rest of his life was not inconsistent
with the ALJ’s discussion and residual functional capacity assessment. But there is
no indication in the ALJ’s decision that he considered that opinion. Thus, we cannot
determine whether the ALJ adequately considered the underlying opinion.
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Because the ALJ failed to adequately explain the weight he afforded to the
opinions of some of Lawton’s treating and examining physicians, we will reverse and
remand the case so that the ALJ can explicitly consider, and can explain the weight
accorded to, those opinions. See Winschel v. Comm’r, 631 F.3d 1176, 1179 (11th
Cir. 2011). Lawton argues that, due to the ALJ’s failure to explain the weight he
afforded to the opinions of Lawton’s treating physicians, the proper remedy is an
award of benefits, and not a remand. There is language in MacGregor v. Bowen, 786
F.2d 1050 (11th Cir. 1986), for the proposition that, if an ALJ fails clearly to
articulate reasons for discounting the opinion of a treating physician, that evidence
must be accepted as true as a matter of law. However, our earlier decisions had
remanded cases to the agency when there was a failure to provide an adequate
credibility determination. See, e.g., Owens, 748 F.2d at 1516; Wiggins v. Schweiker,
679 F.2d 1387, 1390 (11th Cir. 1982). Pursuant to the prior precedent rule, we are
bound by the holding of the first panel to address an issue of law, unless and until it
is overruled by this Court sitting en banc or the Supreme Court. United States v.
Steele, 147 F.3d 1316, 1318 (11th Cir. 1998) (en banc). Accordingly, rather than
broadly accept the doctors’ opinions as true, we will remand to the agency so that it
can make a determination in the first instance of the proper weight to be afforded to
those opinions.
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AFFIRMED IN PART, REVERSED AND REMANDED IN PART.
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