[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 28, 2010
No. 09-16518 JOHN LEY
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 09-20152-CV-RLV
ADRIENNE F. D'ANDREA,
Plaintiff-Appellant,
versus
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,
Michael J. Astrue,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(July 28, 2010)
Before TJOFLAT, BARKETT and HULL, Circuit Judges.
PER CURIAM:
This case involves an application for disability insurance benefits filed by
Adrienne F. D’Andrea on November 20, 2004, under Title II of the Social
Security Act, 42 U.S.C. § 401 et seq. She claimed that her disability began on
January 1, 1998 due to chronic fatigue syndrome (“CFS”) and other conditions we
set out in the margin.1 An administrative law judge (“ALJ”) held a hearing on
November 9, 2007, and found that D’Andrea was not disabled (prior to the
expiration of her insured status on June 30, 2005), and that her impairments caused
no more than minimal limitations on her ability to work and thus were not severe.
The ALJ found alternatively that even if her impairments were severe, she retained
the residual functional capacity (“RFC”) to perform her past relevant work.
The Appeals Council denied D’Andrea’s request for review on October 30,
2008, thereby making the ALJ’s decision the final decision of the Commissioner.
D’Andrea thereafter brought this action in the district court, seeking review of the
Commissioner’s decision. The court affirmed the decision, and D’Andrea lodged
this appeal.
D’Andrea argues that substantial evidence does not support the ALJ’s
finding that her CFS is not severe or his alternative finding that she retains the RFC
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D’Andrea alleged that she also suffered from debilitating exhaustion, nausea, dizziness
affecting balance, hot sweats, cognitive and memory dysfunction, poor concentration, gastrointestinal
problems, chest pain, chronic infections, sleep problems, and systematic candidiasis.
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to perform her past relevant work. “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) (quotation omitted). “We may not decide facts anew, reweigh the
evidence, or substitute our judgment for that of the Commissioner. Dyer v.
Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005) (quotation and alteration omitted).
“Even if the evidence preponderates against the [Commissioner’s] factual findings,
we must affirm if the decision reached is supported by substantial evidence.”
Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990).
The Social Security Regulations outline a five-step process used to
determine whether a claimant is disabled. 20 C.F.R. § 404.1520(a)(4). Under the
first step, the claimant has the burden to show that she is not currently engaged in
substantial gainful activity. Id. § 404.1520(a)(4)(i). Next, the claimant must show
that she has a severe impairment. Id. § 404.1520(a)(4)(ii). She then must attempt
to show that the impairment meets or equals the criteria contained in one of the
Listings of Impairments. Id. § 404.1520(a)(4)(iii). If the claimant cannot meet or
equal the criteria, she must show that she has an impairment which prevents her
from performing her past relevant work. Id. § 404.1520(a)(4)(iv). Once a claimant
establishes that she cannot perform her past relevant work due to some severe
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impairment, the burden shifts to the Commissioner to show that significant
numbers of jobs exist in the national economy which the claimant can perform. Id.
§ 404.1520(a)(4)(v); Phillips v. Barnhart, 357 F.3d 1232, 1239 (11th Cir. 2004).
The present inquiry concerns the second step of the sequential evaluation
process—whether substantial evidence supports the ALJ’s finding that D’Andrea’s
CFS was not a severe impairment. “The severity of a medically ascertained
disability must be measured in terms of its effect upon ability to work.” McCruter
v. Bowen, 791 F.2d 1544, 1547 (11th Cir. 1986) (quotation omitted).
Step two is a threshold inquiry. It allows only claims based on the
most trivial impairments to be rejected. The claimant’s burden at step
two is mild. An impairment is not severe only if the abnormality is so
slight and its effect so minimal that it would clearly not be expected to
interfere with the individual’s ability to work, irrespective of age,
education or work experience.
McDaniel v. Bowen, 800 F.2d 1026, 1031-32 (11th Cir. 1986); see Phillips, 357
F.3d at 1237 (stating that an impairment is severe if it “significantly limits” the
claimant’s physical or mental ability to perform basic work activities); 20 C.F.R.
§ 404.1521(a) (stating that an impairment “is not severe if it does not significantly
limit [the claimant’s] physical or mental ability to do basic work activities”).
A. Chronic Fatigue Syndrome
Social Security Ruling 99-2p (“SSR 99-2p”) confirms that a disability claim
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involving CFS is evaluated “using the sequential evaluation process, just as for any
other impairment.” SSR 99-2p at 4. According to SSR 99-2p, CFS is “a systemic
disorder consisting of a complex of symptoms that may vary in incidence,
duration, and severity . . . characterized in part by prolonged fatigue that lasts 6
months or more and that results in substantial reduction in previous levels of
occupational, educational, social, or personal activities.” Id. at 1. Symptoms of
CFS include “[s]ore throat; [t]ender cervical or axillary lymph nodes; [m]uscle
pain; [m]ulti-joint pain without joint swelling or redness; [h]eadaches of a new
type, pattern, or severity; [u]nrefreshing sleep; and [p]ostexertional malaise lasting
more than 24 hours.” Id. at 2. A person with CFS might also exhibit “muscle
weakness, swollen underarm (axillary) glands, sleep disturbances, visual
difficulties (trouble focusing or severe photosensitivity), orthostatic intolerance
(e.g., lightheadedness or increased fatigue with prolonged standing), other
neurocognitive problems (e.g., difficulty comprehending and processing
information), fainting, dizziness, and mental problems (e.g., depression, irritability,
anxiety).”
When accompanied by appropriate medical signs or laboratory findings,
CFS can be a medically determinable impairment. Id. at 2. There must be
an impairment result[ing] from anatomical, physiological, or
psychological abnormalities that can be shown by medically
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acceptable clinical and laboratory diagnostic techniques. The Social
Security Administration and regulations further require that an
impairment be established by medical evidence that consists of signs,
symptoms, and laboratory findings, and not only by an individual’s
statement of symptoms.
Id. Recognized examples of medical signs, clinically documented over a period of
at least six consecutive months, that will establish the existence of a medically
determinable impairment in a CFS case include “[p]alpably swollen or tender
lymph nodes on physical examination; [n]onexudative pharyngitis; [p]ersistent,
reproducible muscle tenderness on repeated examinations . . .; or, [a]ny other
medical signs that are consistent with medically accepted clinical practice and are
consistent with the other evidence in the case record.” Id. at 3. Further, CFS may
be established by: (1) laboratory findings including neurally mediated hypotension
or an abnormal exercise stress test; and (2) mental findings, including problems
with short-term memory, information processing, visual-spatial issues,
comprehension, concentration, speech, word-finding, calculation, and anxiety or
depression. Id. Citing Ruling 99-2p, we have recognized that “there are no
specific laboratory findings that are” widely accepted as indicative of CFS and no
test for CFS. Vega v. Comm’r of Soc. Sec., 265 F.3d 1214, 1219-20 (11th Cir.
2001) (holding that the ALJ failed to analyze the effect of CFS on a claimant’s
ability to do work meaningfully when he rejected CFS as a diagnosis for want of a
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definite test or specific laboratory findings to support the diagnosis).
B. Medical Opinions
Generally, the opinions of examining or treating physicians are given more
weight than non-examining or non-treating physicians unless “good cause” is
shown. See 20 C.F.R. § 404.1527(d)(1), (2); Lewis v. Callahan, 125 F.3d 1436,
1440 (11th Cir. 1997). Good cause exists to discredit a physician’s testimony
when it is contrary to or unsupported by the evidence of record, or it is inconsistent
with the physician’s own medical records. Phillips, 357 F.3d at 1240-41; Edwards
v. Sullivan, 937 F.2d 580, 583-84 (11th Cir. 1991) (concluding that good cause
existed not to rely on a treating physician’s findings when, inter alia, his treatment
notes contained unexplained inconsistencies). The ALJ may reject the opinion of
any physician when the evidence supports a contrary conclusion. Sryock v.
Heckler, 764 F.2d 834, 835 (11th Cir.1985).
Further, when a treating physician makes merely conclusory statements, the
ALJ may afford them such weight as is supported by the clinical or laboratory
findings and other consistent evidence of the claimant’s impairments. Wheeler v.
Heckler, 784 F.2d 1073, 1075 (11th Cir. 1986); see Vega, 265 F.3d at 1220
(holding that the ALJ erred in failing to give the findings and assessments of the
treating physicians any weight when the medical evidence and claimant’s
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testimony supported a diagnosis of CFS). When a treating physician’s opinion
does not warrant controlling weight, the ALJ must nevertheless weigh the medical
evidence based on many factors, including the examining relationship, the
treatment relationship and the frequency of examination, whether an opinion is
amply supported, whether an opinion is consistent with the record, and a doctor’s
specialization. 20 C.F.R. § 404.1527(d). Where an ALJ articulates specific
reasons for failing to accord the opinion of a treating or examining physician
controlling weight and those reasons are supported by substantial evidence, there is
no reversible error. Moore, 405 F.3d at 1212-13. Here, the ALJ did not accord the
treating physician’s opinion controlling weight, and D’Andrea challenges his
decision.
C. Subjective Symptoms
When a claimant attempts to establish disability through her own testimony
concerning pain or other subjective symptoms, we apply a three-part “pain
standard,” which requires (1) evidence of an underlying medical condition, and
either (A) objective medical evidence that confirms the severity of the alleged pain
stemming from that condition, or (B) that the objectively determined medical
condition is so severe that it can reasonably be expected to cause the alleged pain.
Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002); see Holt v. Sullivan,
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921 F.2d 1221, 1223 (11th Cir. 1991) (stating that this “standard also applies to
complaints of subjective conditions other than pain”). “The claimant’s subjective
testimony supported by medical evidence that satisfies the standard is itself
sufficient to support a finding of disability.” Id.
“After considering a claimant’s complaints of pain, the ALJ may reject them
as not creditable, and that determination will be reviewed for substantial evidence.”
Marbury v. Sullivan, 957 F.2d 837, 839 (11th Cir. 1992). The ALJ must explicitly
and adequately articulate his reasons if he discredits subjective testimony. Id. “A
clearly articulated credibility finding with substantial supporting evidence in the
record will not be disturbed by a reviewing court.” Foote v. Charter, 67 F.3d
1553, 1562 (11th Cir. 1995). There is no requirement that the ALJ refer to every
piece of evidence, but the credibility determination “cannot merely be a broad
rejection which is not enough to enable . . . this Court to conclude that the ALJ
considered [the claimant’s] medical condition as a whole.” Dyer, 395 F.3d
at 1210-11(quotations and alterations omitted).
Moreover, the ALJ may not reject a plaintiff’s subjective complaints based
on the lack of objective evidence alone. Watson v. Heckler, 738 F.2d 1169,
1172-73 (11th Cir. 1984). The ALJ must consider such things as: (1) the
claimant’s daily activities; (2) the nature and intensity of pain and other symptoms;
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(3) precipitating and aggravating factors; (4) effects of medications; (5) treatment
or measures taken by the claimant for relief of symptoms; and (6) other factors
concerning functional limitations. See 20 C.F.R. § 404.1529(c)(3).
After reviewing the record in this case, we conclude that substantial
evidence supports the ALJ’s finding that D’Andrea’s CFS was not a severe
impairment. In reaching this conclusion, have considered D’Andrea’s argument
that the ALJ erred in failing to accord appropriate weight to the opinion of her
treating physician; we reject the argument because the ALJ articulated at least one
specific reason for disregarding the opinion and the record supports it. We also
conclude that the ALJ had ample reason for rejecting the consulting physician’s
RFC assessment; the physician’s own clinical findings undermined the assessment.
The ALJ discounted D’Andrea’s subjective complaints on credibility grounds, and
those grounds are well supported by the evidence. Finally, although the ALJ
misconstrued the psychologists’ findings, the misconstruction was harmless, as the
psychologists’ findings do not contradict the ALJ’s conclusion that D’Andrea did
not have a severe impairment.
In sum, because we conclude that substantial evidence supports the
determination that D’Andrea’s CFS was not a severe impairment and that she had a
RFC to perform her past relevant work, the district court properly refused to
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disturb the Commissioner’s decision and its judgment is due to be affirmed.
AFFIRMED.
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