Deborah A. Garred v. Michael J. Astrue

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-15466 ELEVENTH CIRCUIT
JUNE 16, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK

D. C. Docket No. 08-00155-CV-5-S-MD

DEBORAH A. GARRED,

Plaintiff-Appellant,

versus

MICHAEL J. ASTRUE,

Defendant-Appellee.

________________________

Appeal from the United States District Court
for the Northern District of Florida
_________________________

(June 16, 2010)

Before BLACK, BARKETT and ANDERSON, Circuit Judges.

PER CURIAM:
 Deborah A. Garred appeals the district court’s order affirming the Social

Security Administration’s denial of her application for disability benefits. Garred

asserts the Administrative Law Judge (ALJ) erred by (1) rejecting the opinion of

her treating physician, Dr. Crayton, that Garred met the criteria under

Medical-Vocational Listing 14.09 for inflammatory arthritis; (2) concluding

Garred’s testimony regarding disabling pain, limitations, and fatigue caused by her

rheumatoid arthritis (RA) was not credible; and (3) finding Garred could perform

semi-skilled work without first addressing whether she had transferable skills. We

address Garred’s contentions in turn and affirm.

We review the Commissioner’s factual findings to determine whether they

are supported by substantial evidence. Ingram v. Comm’r of Soc. Sec. Admin., 496

F.3d 1253, 1260 (11th Cir. 2007). Substantial evidence is “more than a scintilla,

but less than a preponderance” and would be accepted by a reasonable person as

adequate evidence to support a conclusion. Bloodsworth v. Heckler, 703 F.2d

1233, 1239 (11th Cir. 1983). We do not “decide the facts anew, reweigh the

evidence, or substitute our judgment for that of the [Commissioner].” Id. “If the

Commissioner's decision is supported by substantial evidence we must affirm, even

if the proof preponderates against it.” Miles v. Chater, 84 F.3d 1397, 1400 (11th

Cir. 1996).

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 The Social Security regulations establish a five-step sequential process for

determining whether a claimant is disabled and thus entitled to disability benefits.

Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999). The claimant must first

demonstrate that she has not engaged in substantial gainful activity and second

show she has a severe impairment or combination of impairments. Id. Under the

third step, if the claimant can prove that her impairment “meets or equals a listed

impairment, she is automatically found disabled.” Id. Otherwise, the claimant

must move to the fourth step and “prove that she is unable to perform her past

relevant work.” Id. If the claimant makes that showing, the burden shifts to the

Commissioner under the fifth step to demonstrate that the claimant can perform

other work available in the national economy. Id. In this case, Garred only

challenges the ALJ’s findings with respect to steps three and five.

I.

With regard to step three, Garred contends the ALJ erred by not accepting

her physician’s determination that her condition was a listed impairment,

inflammatory arthritis, automatically entitling her to disability benefits. Although

the ALJ should consider a physician’s opinion that a claimant meets or equals a

listed impairment, the ALJ need not give that opinion dispositive weight because

the final responsibility for deciding that issue is reserved to the Commissioner. 20

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C.F.R. 404.1527(e)(2). Generally, the opinion of a treating physician “must be

given substantial or considerable weight, unless good cause is shown to the

contrary.” Phillips v. Barnhart, 357 F.3d 1232, 1240 (11th Cir. 2004) (quotation

omitted). “When electing to disregard the opinion of a treating physician, the ALJ

must clearly articulate [his] reasons.” Id. at 1241 (quotation omitted). When the

“treating physician’s opinion was conclusory or inconsistent with the doctor’s own

medical records,” we have held the district court had good cause for disregarding

the physician’s opinion. Id. at 1241.

The opinion of Garred’s physician that Garred had inflammatory arthritis

was conclusory and contradicted by substantial evidence. To meet the criteria for

inflammatory arthritis, a claimant must show “persistent inflammation or deformity

in one major peripheral weight-bearing joint resulting in the inability to ambulate

effectively . . . or one major peripheral joint in each upper extremity resulting in

the inability to perform fine and gross movements effectively.” 20 C.F.R. pt. 404,

subpt. P., app. 1, § 14.09. When Dr. Crayton first provided a form indicating

Garred met Social Security Adult Listing 14.09, Inflammatory Arthritis, he left the

medical findings section of the form blank. Dr. Crayton later submitted a second

form simply quoting the statutory language describing inflammatory arthritis in the

space reserved for his medical findings. Dr. Crayton wrote: “History of joint pain,

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swelling, and tenderness, and signs of current physical examination of joint

inflammation or deformity in two or more joints resulting in inability to ambulate

effectively or inability to perform fine and gross movements effectively, as defined

in [Listing] 14.00B6b and 1.00B2b and B2c.” As it merely defined the condition

in its explanation for why he believed Garred suffered from the condition, his

opinion was wholly conclusory.

Next, there was substantial evidence that Garred did not have an “inability to

ambulate effectively” or “to perform fine and gross movements effectively.” See

20 C.F.R. pt. 404, subpt. P., app. 1, § 14.09. An inability to ambulate effectively

means an “an extreme limitation of the ability to walk,” such as when a person

needs to use a walker, two crutches, or two canes, or when a person cannot perform

routine activities such as shopping or banking. 20 C.F.R. pt. 404, subpt. P., app. 1,

§ 1.00(B)(2)(b)(2). Although Garred was once reported as favoring her right foot

when she walked, and although she claimed to experience discomfort after ten

minutes of walking, she did not use a cane or walker and was able to do some light

grocery shopping and house work and to climb stairs.

Inability to perform fine and gross motor movements refers to an extreme

loss of functioning in both hands. 20 C.F.R. pt. 404, subpt. P., app. 1,

§ 1.00(B)(2)(c). Examples include an inability to prepare a simple meal, take care

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of personal hygiene, sort and handle papers and files, or place files in a cabinet at

or above waist level. Id. There was evidence presented that Garred was able to

use her hands to carry some groceries, hold and feed her infant, do light cooking,

and wash dishes.

In this case, the ALJ was not required to give dispositive weight to Dr.

Crayton’s opinion that Garred’s symptoms met Listing 14.09 because that

determination was reserved to the Commissioner. Moreover, Dr. Crayton’s

opinion was conclusory and was inconsistent with substantial evidence indicating

Garred was able to ambulate effectively and retained the ability to function in her

upper extremities. Therefore, the ALJ did not commit reversible error in making

findings that differed from those of Garred’s treating physician.

II.

Garred next claims the ALJ erred in finding Garred’s testimony about her

pain and fatigue was not fully credible. If the ALJ decides not to credit a

claimant’s subjective testimony, “he must articulate explicit and adequate reasons

for doing so.” Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991). In

evaluating the credibility of a claimant’s testimony regarding her symptoms, the

ALJ may consider, inter alia: (1) the claimant’s daily activities; (2) “the location,

duration frequency and intensity” of the pain and other symptoms; (3) factors that

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precipitate and aggravate the symptoms; (4) the “type, dosage, effectiveness, and

side effects of any medication”; and (5) other treatments the claimant uses to

relieve her pain. 20 C.F.R. § 404.1529(c)(3). “[T]here 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 the

district court or 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)

(quotations and alterations omitted).

In this case, Garred’s testimony concerning her symptoms was inconsistent

with some of the medical evidence in the record. Garred testified she experienced

flare-ups of her RA two to three times per month, for periods of up to two weeks.

Her medical records, however, showed only eight flare-ups between November

2002 and November 2005, and did not support Garred’s assertions of disabling

pain. In addition, although there is some independent evidence that Garred

suffered from fatigue, this evidence did not describe how frequently Garred’s

fatigue occurred. The ALJ was, therefore, not required to accept Garred’s

testimony of daily, disabling fatigue or pain that interfered with her ability to work.

We conclude the ALJ’s credibility finding is supported by substantial evidence.

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 III.

Lastly, Garred contends the ALJ erred in finding Garred could perform

semi-skilled work without first addressing whether she had transferable skills. We

review the Commissioner’s legal conclusions de novo. Ingram, 496 F.3d at 1260.

The Social Security regulations explain that a claimant has transferable job skills

when the skilled or semi-skilled work activities that she performed in the past can

be used to meet the requirements of other jobs. 20 C.F.R. § 404.1568(d)(1). The

Social Security Administration, however, explains transferable skills “will be

decisive in the conclusion of ‘disabled’ or ‘not disabled’ in only a relatively few

instances because, even if it is determined that there are no transferable skills, a

finding of ‘not disabled’ may be based on the ability to do unskilled work.” S.S.R.

82-41. When the issue of transferability does not affect the determination of

whether the claimant is disabled, the ALJ need only state that transferability of job

skills is not material. Soc. Sec. Admin. Programs Ops. Manual Sys. (POMS),

§ DI 25015.015(B)(3)(c).

Under the Medical-Vocational Guidelines (Grids) a “younger individual”

between the ages of 18 and 44 with a high school diploma who is limited to

sedentary work, such as Garred, is generally not considered to be disabled even if

she lacks transferable job skills. See 20 C.F.R. pt. 404, subpt. P, app. 2,

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§§ 201.00(h)(2),(3), 201.28. The ALJ, thus, did not consult the vocational expert

(VE) as to the transferability of Garred’s skills, because he determined, pursuant to

the regulations, that transferability was immaterial.

When a claimant has non-exertional impairments that significantly limit her

ability to work, the ALJ may use the Guidelines as a framework, but should also

consult with a VE to determine how the claimant’s impairments affect her ability

to perform other jobs that exist in the national economy. Wilson v. Barnhart, 284

F.3d 1219, 1227 (11th Cir. 2002).

Because Garred had non-exertional impairments, the ALJ used the Grids as a

general framework and sought testimony from a VE, not as to transferability, but

as to whether her impairments adversely affected her ability to perform other work

and to determine what other work existed for a person of her abilities in the

national economy.

The VE testified that a person with Garred’s age, background, and work

experience would be able to perform several jobs without extensive training,

including dispatcher, security clerk, and information clerk. Because Garred’s

impairments did not preclude her from performing a range of unskilled and

semi-skilled work, the ALJ correctly concluded that transferable skills were not

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material to the determination of disability in this case.1 Accordingly, we affirm the

Commissioner’s denial of Garred’s application for disability benefits.

AFFIRMED.

1
We need not address Garred’s assertion that the ALJ failed to comply with S.S.R. 00-4p
by failing to ask the VE whether his testimony was consistent with the Dictionary of
Occupational Titles, as Garred did not raise the issue before the district court. See Crawford v.
Comm'r of Soc. Sec., 363 F.3d 1155, 1161 (11th Cir. 2004).

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