Daniel F. Hurley v. Comr. of Social Security

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUGUST 29, 2005
No. 05-11346 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

D. C. Docket No. 03-01624-CV-ORL-JGG

DANIEL F. HURLEY,

Plaintiff-Appellant,

versus

COMMISSIONER OF SOCIAL SECURITY,

Defendant-Appellee.

________________________

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

(August 29, 2005)

Before HULL, WILSON and PRYOR, Circuit Judges.

PER CURIAM:
 Daniel F. Hurley appeals the order of the district court that affirmed the

denial of his application for disability insurance benefits and supplemental security

income. Because the denial of Hurley’s disability insurance benefits and

supplemental security income was supported by substantial evidence and the

Administrative Law Judge applied the correct legal standards, we affirm.

I. STANDARD OF REVIEW

We review a social security appeal to determine whether the decision of the

ALJ is supported by substantial evidence and whether the ALJ applied the correct

legal standards. See 42 U.S.C. § 405(g); Crawford v. Comm’r of Soc. Sec., 363

F.3d 1155, 1158 (11th Cir. 2004). Substantial evidence is “such relevant evidence

as the reasonable mind might accept as adequate to support a conclusion.” Walden

v. Schweiker, 672 F.2d 835, 838 (11th Cir. 1982). We review de novo the decision

of the district court regarding whether substantial evidence supports the findings.

Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002).

II. DISCUSSION

Hurley makes three arguments on appeal. First, he contends that the medical

evidence overwhelmingly showed that he had underlying medical conditions that

cause him severe and disabling pain, and the ALJ erred in failing to develop the

record concerning his objective evidence of pain. Hurley next argues that the

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decision of the ALJ is not supported by substantial evidence because the ALJ

relied on the testimony of a vocational expert and failed to pose a hypothetical

question that comprised all of Hurley’s impairments. Finally, Hurley contends that

the ALJ erred in failing to evaluate all of Hurley’s impairments individually and in

combination. We address each argument in turn.

A. Failure to Develop Record

Hurley argues that the ALJ erred in failing to develop the record concerning

the objective evidence of pain and that the ALJ failed to properly evaluate his pain.

Although a claimant may establish a disability through his own testimony

regarding pain, the claimant must also provide “(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 such a severity that it can reasonably be expected

to give rise to the alleged pain.” Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir.

1991). “A claimant’s subjective testimony supported by medical evidence that

satisfies the pain standard is itself sufficient to support a finding of disability.”

Foote v. Chater, 67 F.3d 1553, 1560-61(11th Cir. 1995). After an impairment is

established, the ALJ must consider the medical signs and laboratory findings with

the evidence regarding the intensity, persistence, and functionally limiting effects

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of the pain or other symptoms in deciding the issue of disability. Id.

The ALJ also must make credibility determinations regarding a claimant’s

complaints of pain. Wiggins v. Schweiker, 679 F.2d 1387, 1391 (11th Cir. 1982).

If the ALJ discredits a claimant’s subjective complaints of pain, the ALJ must

articulate the reasons for this conclusion based on substantial evidence. Jones v.

Department of Health and Human Services, 941 F.2d 1529, 1532 (11th Cir. 1991).

Although the ALJ “has a duty to develop a full and fair record,” Brown v. Shalala,

44 F.3d 931, 934 (11th Cir. 1995), “there must be a showing of prejudice before

we will find that the claimant’s right to due process has been violated to such a

degree that the case must be remanded to the Secretary for further development of

the record.” Id. at 935. Before ordering a remand, we review the administrative

record as a whole to determine if it is inadequate or incomplete or “shows the kind

of gaps in the evidence necessary to demonstrate prejudice.” Graham v. Apfel, 129

F.3d 1420, 1423 (11th Cir. 1997). “The lack of medical and vocational

documentation supporting an applicant's allegations of disability is undoubtedly

prejudicial to a claim for benefits.” Brown, 44 F.3d at 935-36.

Substantial evidence supports the determination of the ALJ regarding

Hurley’s evidence of pain. The objective and subjective medical evidence supports

the finding of the ALJ that the alleged pain arising from Hurley’s condition is not

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disabling. The determination of the ALJ that Hurley impairments were not severe

within the meaning of the regulations is supported by the medical records of

Hurley’s treating physician and the most recent mental and physical residual

function capacity examinations. The inconsistencies in Hurley’s testimony and the

diagnostic and clinical findings further support the determination that Hurley’s

condition is not severe. We also conclude that the record was sufficiently

developed for the ALJ to evaluate Hurley’s impairments and functional ability.

The record does not show the kind of gaps in evidence necessary to demonstrate

prejudice. See Graham, 129 F.3d at 1423.

B. Vocational Expert

After a claimant has established some disability that prevents him from

performing his past relevant work, the burden shifts to the ALJ to demonstrate the

existence of a significant number of jobs in the national economy that the claimant

can perform. Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999). An ALJ uses

either of two methods to determine whether a claimant has the ability to adjust to

other work in the national economy: (1) applying the Medical Vocational

Guidelines, or (2) using a vocational expert. Phillips v. Barnhart, 357 F.3d 1232,

1239-40 (11th Cir. 2004). Testimony from a vocational expert is the preferred

method for introducing independent evidence of the existence of jobs in the

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national economy that the claimant can preform. Wilson v. Barnhart, 284 F.3d

1219, 1227 (11th Cir. 2002).

“[F]or a [vocational expert]’s testimony to constitute substantial evidence,

the ALJ must pose a hypothetical question which comprises all of the claimant’s

impairments.” Id. “Essentially, the ALJ must determine if there is other work

available in significant numbers in the national economy that the claimant has the

ability to perform.” Phillips, 357 F.3d at 1239. The ALJ uses hypothetical

questions to determine whether someone with the same limitations as the claimant

would be able to secure employment in the national economy. See id. After the

ALJ identifies alternative work, the burden shifts to the claimant to demonstrate

that he is unable to perform those jobs. Id.

Hurley’s argument that the hypothetical questions posed by the ALJ to the

vocational expert were not supported by substantial evidence fails. The ALJ

properly relied on the opinion of the vocational expert because the hypotheticals

posed to the vocational expert addressed all of Hurley’s impairments. The second

and third hypotheticals accurately reflected Hurley’s impairments and a residual

functional capacity for a limited range of light work. The vocational expert

testified that, although Hurley could not return to his past work, he could do other

work in the national economy. The Commissioner, therefore, carried the burden of

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proving that Hurley could perform other work, and Hurley failed to establish that

he could not perform the jobs identified by the vocational expert. See Jones, 190

F.3d at 1228.

C. Evaluation of Impairments

Hurley argues that the ALJ erred in failing to evaluate all of Hurley’s

impairments individually and in combination. An ALJ must consider each

impairment alleged. Gibson v. Heckler, 779 F.2d 619, 623 (11th Cir. 1986).

“Where a claimant has alleged several impairments, the Secretary has a duty to

consider the impairments in combination and to determine whether the combined

impairments render the claimant disabled.” Jones, 941 F.2d at 1533.

The ALJ properly evaluated all of Hurley’s impairments. The ALJ made

specific statements explaining that the medical evidence established that Hurley

had a combination of severe impairments, but these impairments did not meet or

medically equal the listed impairment in Appendix 1, Subpart P, Regulations No.

4. The ALJ explicitly found that Hurley has degenerative disc disease of the

lumbar nad cervical spine, asymptomatic hepatitis C infection, probable arthritis in

the left knee, mild cerebellar disease due to chronic alcohol abuse, somatoform and

substance-induced disorders, a major depressive disorder, a possible cognitive

disorder, and a substance addition disorder. Although there was no medical

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evidence to support Hurley’s claims of numbness in his left hand and side effects

from his medication, the ALJ implicitly addressed these alleged impairments

through the hypothetcials. Substantial evidence supports the conclusion that the

ALJ considered the individual and combined effects of Hurley’s impairments. See

Wilson, 284 F.3d at 1224.

III. CONCLUSION

Based on the foregoing, the denial of disability insurance benefits to Hurley

is AFFIRMED.

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