[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-12823 ELEVENTH CIRCUIT
AUGUST 30, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 07-01828-CV-T-26-MSS
BEVERLY FRANTINO MAJKUT,
Plaintiff-Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(August 30, 2010)
Before CARNES, MARCUS and ANDERSON, Circuit Judges.
PER CURIAM:
Beverly Majkut appeals the district court’s order affirming the
Commissioner’s denial of her application for disability insurance benefits, 42
U.S.C. § 405(g), and supplemental security income, 42 U.S.C. § 1383(c)(3).
Majkut raises four arguments on appeal. First, she argues that the Administrative
Law Judge (“ALJ”) erred by finding that she did not suffer a severe impairment as
a result of panic attacks and anxiety. Second, she contends that the ALJ erred in
finding her subjective complaints of pain and her limitations to be inconsistent and
not entirely credible. Third, she argues that the ALJ gave less weight to two
treating physicians—Dr. Cua and Dr. Levine—without good cause for doing so.
Finally, she contends that the ALJ erred by weighing the findings of Dr. Schwartz
more heavily, and in finding that his opinions supported a finding that she had the
Residual Functional Capacity (“RFC”) to work in the national economy.
A.
We do not typically address arguments not raised before the district court in
a Social Security case. Stewart v. Dept. of Health and Human Services, 26 F.3d
115, 115-16 (11th Cir. 1994). Failure to elaborate on a claim or provide citation of
authority results in waiver of the claim. Flanigan’s Enterprises, Inc. of Georgia v.
Fulton County, Ga., 242 F.3d 976, 987 n.16 (11th Cir. 2001) (non-Social Security
case).
When properly preserved, we review the Commissioner’s decision to
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determine if it is supported by substantial evidence. Crawford v. Commissioner of
Social Security, 363 F.3d 1155, 1158 (11th Cir. 2004); 42 U.S.C. § 405(g).
“Substantial evidence as to the [Commissioner’s] factual findings is more than a
scintilla, but less than a preponderance: ‘[i]t is such relevant evidence as a
reasonable person would accept as adequate to support a conclusion.’” Martin v.
Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990). We review de novo the district
court’s decision on whether substantial evidence support supports the ALJ’s
decision. Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002).
An individual claiming Social Security disability benefits must prove that
she is disabled. Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999). For Social
Security purposes, “disability” is defined as the “inability to engage in any
substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or which has lasted or
can be expected to last for a continuous period of not less than 12 months.”
42 U.S.C. §§ 423(d)(1)(A) (disability insurance benefits), 1382c(a)(3)(A)
(supplemental security income). “The Social Security regulations provide a
five-step sequential evaluation process for determining if a claimant has proven
that [he] is disabled.” Jones, 190 F.3d at 1228. A claimant must show that:
(1) she is not performing substantial gainful activity;
(2) she has a severe impairment;
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(3) the impairment or combination of impairments meets or equals
an impairment listed in the regulations;
(4) she cannot return to past work;
(5) she cannot perform other work based on her age, education, and
experience.
Phillips v. Barnhart, 357 F.3d 1232, 1237 (11th Cir. 2004); 20 C.F.R. § 404.1520;
20 C.F.R. § 416.920.
“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 [his] medical condition as a whole.’” Dyer v. Barnhart, 395 F.3d 1206,
1211 (11th Cir. 2005) (quoting Foote v. Chater, 67 F.3d 1553, 1561 (11th Cir.
1995)). The testimony of treating physicians must be given substantial weight
unless good cause is shown to the contrary. Crawford, 363 F.3d at 1159. In
determining whether a claimant is disabled, the ALJ will: “consider all [her]
symptoms, including pain, and the extent to which [her] symptoms can reasonably
be accepted as consistent with the objective medical evidence and other evidence.”
20 C.F.R. § 404.1529(a).
At Step Two, a claimant must show that she has a severe impairment or
combination of impairments. 20 C.F.R. § 404.1520(a)(4)(iii). At Step Five, she
must show that she does not retain the RFC to perform other work based on her
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age, education, and experience. 20 C.F.R. § 404.1520(a)(4)(v).
Majkut did not raise her first claim—concerning claims that she suffered
panic attacks and anxiety—before the district court, and therefore it is deemed
waived. In any event, substantial evidence supports the ALJ’s conclusion that she
did not suffer a severe impairment in these respects. At different times, she
claimed the attacks had gotten better or worse and Dr. DelBeato noted that she
might be embellishing symptoms. Accordingly, substantial evidence supported the
ALJ’s conclusion that, while some of her conditions were severe, her panic attacks
and anxiety were not.
B.
Majkut argues that the ALJ did not provide sufficient support for its
conclusion that she was not credible. She argues that it erroneously found there
was evidence of “symptom magnification” based on testimony from Dr. DelBeato
and Dr. Kazar, when neither made such a finding, nor did their testimony support
such a finding. She also contends that the ALJ erred by finding Dr. Soto-Aguilar’s
treatment regimen for fibromyalgia was not consistent with the diagnosis. She
argues that Dr. Soto-Aguilar diagnosed her with fibromyalgia, suggested more
treatment than the ALJ stated, and did not suggest that she could work. Finally,
she argues that the ALJ’s finding that there were periods when she did not receive
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treatment was contradicted by the record.
If a claimant testifies regarding subjective complaints of disabling pain and
other symptoms, “the ALJ must clearly ‘articulate explicit and adequate reasons’
for discrediting the claimant’s allegations.” Dyer, 395 F.3d at 1210. In order for a
claimant to sufficiently establish disabling pain through testimony, she 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. (quoting Holt v. Sullivan, 921 F.2d 1221 (11th Cir. 1991)).
Regulation 96-7p and 20 C.F.R. § § 404.1529(c)(4) and 416.929(c)(4)
require the ALJ to consider the consistency of subjective complaints. The
regulations require the Commissioner to evaluate subjective complaints of pain in
light of the objective medical evidence, the claimant’s own statements, and other
evidence in the record, and to offer specific reasons for discrediting a claimant’s
subjective complaints. SSR 96-7p. In evaluating subjective complaints of pain,
the Commissioner considers the extent to which symptoms, such as pain, affect the
claimant’s ability to perform basic work activities. The Commissioner considers
the objective medical evidence from treating and non-treating sources, the location,
duration, frequency, and intensity of pain, aggravating factors, medication and
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treatment, and any other factors. See 20 C.F.R. §§ 404.1529 and 416.929.
Although a claimant’s admission that she participates in daily activities for
short durations does not necessarily disqualify the claimant from disability, Lewis
v. Callahan, 125 F.3d 1436, 1441 (11th Cir. 1997), that does not mean it is
improper for the ALJ to consider a claimant’s daily activities at all. See 20 C.F.R.
§§ 404.1529(c)(3)(i), 416.929(c)(3)(i) (specifically listing the claimant's daily
activities as one of the factors to consider in evaluating the claimant's symptoms).
Substantial evidence supported the ALJ’s conclusion that Majkut’s
subjective complaints of disabling pain and other symptoms were not entirely
credible. She was inconsistent in stating that she could not do any chores or drive,
but telling other physicians that she drove her husband to work and did some
chores. Dr. DelBeato noted that she might be embellishing symptoms.
Accordingly, the ALJ did not err in finding her to be not entirely credible in this
respect.
C.
Majkut argues that, if the ALJ had properly credited the testimony of Dr.
Cua or Dr. Levine, that would have shown that she could not work. She argues
that the ALJ did not base his rejection of their testimony on substantial evidence
because he did not set forth good cause for rejecting Dr. Cua’s opinion. She notes
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that, in particular, the ALJ’s conclusion that Dr. Cua based his assessment only on
her subjective complaints was contradicted by the record. She contends that the
ALJ erred in finding that Dr. Levine’s assessment was contradicted by the record
because he failed to note that Dr. Levine referred her to specialists, whose own
assessments supported his own findings.
When weighing medical opinions, treating physicians are generally accorded
more weight. 20 C.F.R. § 404.1527(d)(2). “Testimony of a treating physician
must be given substantial or considerable weight unless ‘good cause’ is shown to
the contrary.” Lewis, 125 F.3d at 1440. Good cause exists, for example, where the
conclusion was not bolstered by evidence, the evidence supported a contrary
finding, or where the opinion is conclusory or inconsistent with the doctor’s own
records. Id. The ALJ must clearly articulate its reasons for doing so. Phillips, 357
F.3d at 1241. 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.
20 C.F.R. § 404.1527(e)(2).
Substantial evidence supports the ALJ’s decision to give less weight to Dr.
Cua’s and Dr. Levine’s opinions. Dr. Cua treated Majkut from 2003 to 2006
regarding her mental impairments, and the Commissioner does not argue that he
was not a treating physician. His opinions were also based on Majkut’s subjective
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complaints, which the ALJ found to be inconsistent. He performed a number of
evaluations but these appear to have been based largely on her subjective
complaints. He does appear to have made some notes regarding his personal
observations, noting that she was depressed and weepy. While his conclusions do
not appear to be based solely on her subjective complaints, as found by the ALJ,
these limited observations do not establish severe panic attacks and anxiety when
most of the support came from Majkut’s own complaints, which were not entirely
credible. Further, the state-ordered psychological examination did not find any
severe impairments. In addition, because he began treating Majkut in 2003 and
her last date insured was in 2002, to the extent his findings relate to her condition
after her last date insured, they cannot support her DIB claims.
Substantial evidence also supports the limited weight given to the opinion of
Dr. Levine, Majkut’s former treating physician, with respect to her physical
impairments. The ALJ found that Dr. Levine’s opinions were based solely on
Majkut’s subjective complaints, and she was not credible in this respect. Dr.
Levine’s 2002 conclusion that she could not work 8 hours or carry 10 pounds was
not made with the benefit of the 2001 FCE results, nor did he test her to determine
what her limitations were, and therefore was based upon her subjective complaints.
Dr. Levine’s 2005 conclusion that she could not work due to a variety of health
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problems because her condition had remained the same was inconsistent with his
own records because he did not document treatment for all of the impairments. Dr.
Horton, for example, did not recommend surgery for carpal tunnel syndrome, and
in 2004 found with respect to her cervical complaints that she had a fairly good
range of motion. Dr. Soto-Aguilar advised her to undertake light exercise and did
not restrict her activities. Regarding Dr. Levine’s conclusions on her mental
health, the ALJ noted that Dr. Levine was not a mental health practitioner. While
these opinions do not constitute rejection of her claims of impairment due to carpal
tunnel syndrome and fibromyalgia, respectively, they are inconsistent with the
limitations Dr. Levine imposed. Therefore, the ALJ’s decision is affirmed in this
respect.
D.
Majkut argues that the ALJ erred by construing Dr. Schwartz’s assessments
as supporting its finding that she could perform light work. She argues that Dr.
Schwartz never found that she could perform light work, and that his
recommendation that she could perform “light duty” was not the same as
performing “light work.” She argues that she was limited to “light duty,” which
included a limitation that she was limited to lifting no more than 5 pounds with her
left arm and could not perform repetitive activity with her left arm, as well as only
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working 4 hours a day, 4 days a week. She also notes that even when Dr. Schwartz
found that she could perform a number of tasks, he only stated that she could do so
“on an occasional basis.”
Being able to perform light work is defined as:
lifting no more than 20 pounds at a time with frequent lifting or
carrying of objects weighing up to 10 pounds. Even though the
weight lifted may be very little, a job is in this category when it
requires a good deal of walking or standing, or when it involves
sitting most of the time with some pushing and pulling of arm or leg
controls. To be considered capable of performing a full or wide range
of light work, you must have the ability to do substantially all of these
activities.
20 C.F.R. § 404.1567(b).
Regardless of its source, all medical opinions are assessed by noting the
examining relationship, the treatment relationship, whether the finding is
supported, whether the opinion is consistent with the record as a whole,
specialization of the doctor, and other factors which tend to support or contradict
the opinion. 40 C.F.R. § 404.1527(d).
In a Social Security case, erroneous factual statements by the ALJ may
constitute harmless error if the ALJ applies the proper legal standard. Diorio v.
Heckler, 721 F.2d 726, 728 (11th Cir. 1983). In Moore v. Barnhardt, 405 F.3d
1208, 124 (11th Cir. 2005), we noted that where the ALJ failed to analyze or
document the applicant’s condition in two functional areas, and we could not
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determine what impact this had on the ALJ’s determination, we could not evaluate
the claim for harmless error. Moore, 405 F.3d at 1214.
Even assuming arguendo that Dr. Schwartz’s conclusions did not support a
finding that she was disabled, the ALJ relied heavily on other evidence, notably
state agency-ordered evaluations that found that Majkut was capable of the
exertional demands of light work. The ALJ noted the “great weight” it gave to
these evaluations, stating that they were consistent with the clinical data and
Majkut’s activities. Majkut’s own statements about her limitations were
contradictory. By contrast, there was good cause to limit the weight given to other
findings supporting her claims. Accordingly, substantial evidence in the record
supports the ALJ’s decision.
AFFIRMED.
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