Henry S. Chambers, Jr. v. Commissioner of Social Security

Case: 16-11971 Date Filed: 12/01/2016 Page: 1 of 9

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
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No. 16-11971
Non-Argument Calendar
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D.C. Docket No. 1:15-cv-00056-MP-CAS

HENRY S. CHAMBERS, JR.,

Plaintiff-Appellant,

versus

COMMISSIONER OF SOCIAL SECURITY,

Defendant-Appellee.

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Appeal from the United States District Court
for the Northern District of Florida
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(December 1, 2016)

Before TJOFLAT, MARCUS and WILLIAM PRYOR, Circuit Judges.

PER CURIAM:

Henry Chambers, Jr. appeals the district court’s order affirming the

Commissioner’s denial of his application for disability insurance benefits, pursuant
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to 42 U.S.C. § 405(g). On appeal, Chambers argues that: (1) the Administrative

Law Judge (“ALJ”) erred by assigning little weight to the opinion of a consultative

psychologist; and (2) the ALJ erred by relying on the vocational expert’s testimony

and recommendations for occupations. After careful review, we affirm.

We normally review the Commissioner’s decision for substantial evidence.

Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011). We do

not address the magistrate judge’s or district court’s reasoning, because our review

is limited to the agency decision. Crawford v. Comm’r of Soc. Sec., 363 F.3d

1155, 1158 (11th Cir. 2004). The ALJ is charged with weighing the evidence and

we may not reweigh the evidence or substitute our own judgment for that of the

Commissioner even if we find the evidence preponderates against the

Commissioner’s decision. Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005).

First, we are unpersuaded by Chambers’s claim that the ALJ erred by

assigning insufficient weight to the opinion of a consultative psychologist. In

assessing whether a claimant is disabled, an ALJ must consider the medical

opinions in a case record together with the rest of the relevant evidence received.

20 C.F.R. § 404.1527(b). Generally, the longer a treating source has treated a

claimant and the more times a treating source has seen a claimant, the more weight

the ALJ will give to the source’s medical opinion. Id. § 404.1527(c)(2). We’ve

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held that a one-time examiner need not be given deference by the Commissioner.

McSwain v. Bowen, 814 F.2d 617, 619 (11th Cir. 1987).

Furthermore, the more consistent an opinion is with the record as a whole,

the more weight the ALJ will give to that opinion. 20 C.F.R. § 404.1527(c)(4).

The ALJ will consider a claimant’s daily activities when determining the

symptoms and severity of an impairment. Id. § 404.1529(c)(3)(i). An ALJ need

not give a treating physician’s opinion considerable weight if the applicant’s own

testimony about his daily activities contradicts that opinion. See Phillips v.

Barnhart, 357 F.3d 1232, 1241 (11th Cir. 2004). “A clearly articulated credibility

finding with substantial supporting evidence in the record will not be disturbed by

a reviewing court.” Foote v. Chater, 67 F.3d 1553, 1562 (11th Cir. 1995).

However, the ALJ must “articulate specific reasons for questioning the claimant’s

credibility” if subjective symptom testimony is “critical” to the claim. Marbury v.

Sullivan, 957 F.2d 837, 839 (11th Cir. 1992).

Here, the ALJ did not err by assigning little weight to the opinion of a

consultative psychologist, Dr. William Beaty. First, the ALJ properly reviewed all

medical opinions in the case record, including those of the nurse practitioners,

physician assistants, and other medical personnel, to determine the severity of

Chambers’s impairments and how they affected his ability to work. See 20 C.F.R.

§ 404.1527(b), (c); § 404.1513(a), (d)(1). The ALJ was permitted to attach more

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weight to the medical professionals at Meridian Behavioral Healthcare, Inc.

(“Meridian”), who treated Chambers numerous times and over a longer period of

time, than to Dr. Beaty, who examined Chambers once. See 20 C.F.R. §

404.1527(c)(2); McSwain, 814 F.2d at 619.

Second, the consultative psychologist’s assessment was based primarily on

Chambers’s report of subjective symptoms, which the ALJ determined was not

reliable. The ALJ explained that he questioned Chambers’s credibility because

Chambers’s description of his daily activities and capacity for social functioning

suggested a greater capacity than that alleged during his hearing testimony, and

Chambers’s work history and refusal to look for new work raised a question as to

whether Chambers’s continued unemployment was actually due to medical

impairments. See Marbury, 957 F.2d at 839. Chambers had testified that he had

left his last job because he wanted to and that he had not looked for a job since. He

also testified that he was able to perform household chores, such as doing yard

work, preparing simple meals, washing dishes, vacuuming, sweeping, mopping,

making his bed, and taking out the trash, and that he went to church once a week

and used public transportation. Notes from follow up meetings at Meridian

indicated that Chambers had a good response to his medication and his symptoms

were well controlled with medication. And, when asked by a treating counselor

about his disability, Chambers made vague comments about his back and mental

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condition and refused to search for jobs, even after being told that there were jobs

that were not labor intensive and that his depression had been under control for

some time with the help of medication. Therefore, the ALJ’s credibility

determination was clearly articulated and based on substantial evidence. See

Foote, 67 F.3d at 1562.

The ALJ also determined that Dr. Beaty’s opinion was inconsistent with the

record as a whole. In particular, as we’ve described above, his opinion was

inconsistent with the opinions of Chambers’s treatment providers at Meridian and

Chambers’s own statements that he was able to use the bus and perform a good

range of daily activities. See 20 C.F.R. § 404.1527(c)(4). The ALJ was permitted

to consider these daily activities when determining the symptoms and severity of

Chambers’s impairment. Further, because Chambers’s own testimony regarding

his daily activities contradicted Beaty’s opinion, the ALJ did not need to give

Beaty’s opinion considerable weight. See 20 C.F.R. § 404.1529(c)(3)(i); Phillips,

357 F.3d at 1241. For all of these reasons, the ALJ did not err by assigning little

weight to Beaty’s opinion.

We also find no merit to Chambers’s claim that the ALJ erred by relying on

the vocational expert’s testimony and recommendations for occupations. If the

Commissioner determines that the claimant cannot perform his past work, the

Commissioner must establish substantial evidence that occupations exist in the

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national economy that the claimant can perform. Hale v. Bowen, 831 F.2d 1007,

1011 (11th Cir. 1987). For a response to a hypothetical question to constitute

substantial evidence of work available to the claimant, the question must set out all

of the claimant’s impairments. Wilson v. Barnhart, 284 F.3d 1219, 1227 (11th Cir.

2002). If the Commissioner establishes that the claimant could perform work in

the national economy in light of the claimant’s RFC, age, education and work

experience, the claimant must prove that he or she cannot perform the work

suggested by the Commissioner. Hale, 831 F.2d at 1011.

Job descriptions in the DOT include specific vocational preparation time

(“SVP”) numbers and reasoning levels, which supply supplemental information

about the listed jobs. Dictionary of Occupational Titles, Occupational Definitions

(4th ed., rev. 1991) (“DOT”). A job with an SVP of two means that that job

requires anything beyond a short demonstration up to and including one month of

time to learn the techniques, acquire the information, and develop the facility

needed for average performance in the job. See DOT, Appendix C: Components

of the Definition Trailer, § II, SVP. Unskilled work is work which needs little or

no judgment to do simple duties that can be learned on the job in a short period of

time, usually within 30 days. 20 C.F.R. § 404.1568(a). The job of hospital food

worker has a reasoning level of three and a SVP of two. DOT § 319.677-014. The

job of housekeeping cleaner has a reasoning level of one and a SVP of two. Id. §

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323.687-014. If there is a conflict between the DOT and the jobs identified by a

vocational expert in response to the hypothetical question, the testimony of the

vocational expert outweighs the DOT because the DOT is not the sole source of

admissible information concerning jobs. Jones v. Apfel, 190 F.3d 1224, 1229-30

(11th Cir. 1999).

Here, the ALJ established substantial evidence that occupations existed in

the national economy that Chambers could perform by asking the vocational expert

a hypothetical question that set out all of Chambers’s impairments. See Hale, 831

F.2d at 1011; Wilson, 284 F.3d at 1227. At the hearing, the ALJ told the

vocational expert to assume, among other limitations, that Chambers needed a low

stress work environment with no production line; simple tasks; and to have limited

contact with the public and co-workers. The ALJ asked the vocational expert

whether any jobs existed in the national economy that a hypothetical person could

perform assuming Chamber’s age, education, work experience, RFC, and other

limitations. The vocational expert testified that such an individual could perform

unskilled, light jobs, such as a hospital food worker and housekeeping cleaner.

Instead of arguing that the ALJ erred by failing to inform the vocational

expert of his impairments, Chambers seems to argue that the suggested

occupations do not account for the limitations required to accommodate his

impairments, specifically simple work and a low stress work environment. As for

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simple work, Chambers argues that jobs with reasoning levels of two or three

require more mental capacity than that which would be required for simple work.

But the job of housekeeping cleaner has a reasoning level of one. DOT § 323.687-

014. As for jobs labeled with reasoning levels of two or three, they may also be

jobs with simple tasks. Furthermore, although the job of hospital food worker has

a reasoning level of three, it also has a SVP of two, indicating that it requires, at a

maximum, one month of time to learn the techniques, acquire the information, and

develop the facility needed for average performance in the job. DOT § 319.677-

014. That job is, therefore, consistent with unskilled work, which needs little or no

judgment to do simple duties that can be learned on the job in a short period of

time, usually within 30 days. 20 C.F.R. § 404.1568(a). Thus, Chambers has not

shown that the jobs of housekeeping cleaner or hospital food worker require more

mental capacity than allowed for in the limitations outlined by the ALJ.

As for the requirement of a low stress environment, Chambers has not

presented any evidence that the occupations of hospital food service worker and

housekeeping cleaner did not satisfy this requirement. The definitions of the

occupations do not mention stress and the vocational expert did not mention stress.

See generally DOT, Occupational Definitions (4th ed., rev. 1991). For these

reasons, Chambers has not proven that he could not perform the work suggested by

the Commissioner. See Hale, 831 F.2d at 1011.

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Lastly, Chambers’s argument that the ALJ should have questioned the

vocational expert about any inconsistency with the DOT fails. First, there was no

apparent inconsistency -- indeed, Chambers did not question the vocational expert

about any inconsistency or raise the issue before the ALJ, and the vocational expert

affirmed that his testimony was consistent with the DOT. Second, even if there

was a conflict between the DOT and the jobs identified by the vocational expert in

response to the hypothetical question, the testimony of the vocational expert

outweighs the DOT because the DOT is not the sole source of admissible

information concerning jobs. See Jones, 190 F.3d at 1230. Thus, the ALJ properly

relied on the vocational expert’s testimony.

AFFIRMED.

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