Larry Baxter v. Jo Anne B. Barnhart

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
------------------------------------------- ELEVENTH CIRCUIT
FEBRUARY 3, 2006
No. 05-11074
THOMAS K. KAHN
Non-Argument Calendar
CLERK
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D.C. Docket No. 02-00125-CV-SPM-AK

LARRY BAXTER,

Plaintiff-Appellant,

versus

JO ANNE B. BARNHART,

Defendant-Appellee.

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Appeal from the United States District Court
for the Northern District of Florida
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(February 3, 2006)

Before EDMONDSON, Chief Judge, BIRCH and BARKETT, Circuit Judges.

PER CURIAM:
Larry Baxter appeals the district court’s order affirming the denial by the

Commissioner of Social Security of his application for supplemental security

income (SSI), 42 U.S.C. § 1383(c)(3). No reversible error has been shown; we

affirm.

“We review the Commissioner’s decision to determine if it is supported by

substantial evidence and based on proper legal standards.” Lewis v. Callahan, 125

F.3d 1436, 1439 (11th Cir. 1997). “Substantial evidence is more than a scintilla

and is such relevant evidence as a reasonable person would accept as adequate to

support a conclusion.” Id. at 1440. Even if the evidence preponderates against the

Commissioner’s findings, “we must affirm if the decision reached is supported by

substantial evidence.” Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990).

Baxter first argues that substantial evidence does not support the

administrative law judge’s (ALJ’s) disregarding of psychologist Dr. Nancy

Ingwell’s diagnosis of Baxter’s antisocial personality disorder. Baxter contends

that the ALJ should have included his antisocial personality disorder as a severe

impairment and in the hypothetical question that the ALJ posed to the vocational

expert (VE).

In determining whether a claimant is disabled, and thus qualified for SSI

benefits, the Social Security regulations set out a five-step sequential evaluation

2
process. See Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999). First, the

claimant must show that he has not engaged in substantial gainful activity. Id.

Second, the claimant must prove that he has a severe impairment or combination

of impairments. Id. At step three, if his impairment meets or equals a listed

impairment, he automatically is determined to be disabled. Id. If he does not, he

proceeds to step four, where he must prove that he is unable to perform past

relevant work. Id. Fifth, if the claimant cannot perform past relevant work, the

burden shifts to the Commissioner to show that other work that the claimant is

able to perform is available in significant numbers in the national economy. Id.

Baxter’s argument concerns the second step: the determination of whether

an impairment is severe. Here, the ALJ determined that Baxter had several severe

impairments: the loss of Baxter’s right eye, left shoulder pain, depression, and

borderline intellectual functioning. But the ALJ specifically determined that the

evidence was insufficient to support a determination that Baxter’s antisocial

personality disorder constituted a severe impairment.

We uphold the ALJ’s determination as based on substantial evidence. With

the instant application for benefits, only one consulting psychologist, Dr. Ingwell,

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diagnosed Baxter with antisocial personality disorder.1 Although the evaluation of

psychologist Dr. Thomas Smith mentioned antisocial personality disorder, Dr.

Smith did not diagnose Baxter with this disorder. And Dr. Ingwell’s diagnosis

came from an examination that also produced what Dr. Ingwell admitted was an

invalid Minnesota Multiphasic Personality Inventory-II (MMPI-II) test because

Baxter had given exaggerated responses. Further, during Baxter’s testimony

before the ALJ, Baxter did not indicate that his ability to do basic work activities

was limited significantly by his antisocial personality disorder. See Crayton v.

Callahan, 120 F.3d 1217, 1219 (11th Cir. 1997) (an impairment is “severe” when

it “significantly limits claimant’s physical or mental ability to do basic work

activities”). In contrast, Baxter stated that he had quit his last job as a dishwasher

because he thought his eyesight prevented him from performing his duties. The

ALJ properly disregarded a determination of antisocial personality disorder.2

1
Baxter filed the instant application on 8 August 1996. In connection with an earlier application
for benefits, the evaluation of psychologist Dr. Paul Smith included, among other things, a diagnosis
of antisocial personality. But this report was filed 28 June 1996, before the instant application and
before Baxter lost his eye.
2
Because the ALJ properly determined that Baxter’s antisocial personality disorder was not
severe, the ALJ properly omitted limitations resulting from this disorder in the hypothetical to the
VE. See Pendley v. Heckler, 767 F.2d 1561, 1562-63 (11th Cir. 1985) (ALJ asks hypothetical
posing the limitations that the ALJ determined as severe).

4
Baxter next argues that the ALJ should not have disregarded the VE’s

responses to his counsel’s hypothetical questions, which contained Dr. Ingwell’s

conclusions on Baxter’s mental residual functional capacity (MRFC). Baxter

contends that Dr. Ingwell was the only psychologist who completed an MRFC

assessment: thus, Dr. Ingwell’s conclusions support the elements of Baxter’s

counsel’s hypotheticals.

This argument concerns the fifth step: the ALJ concluded that Baxter was

unable to do past relevant work, so the ALJ then determined that Baxter was able

to perform other work available in the national economy. See Jones, 190 F.3d

at 1228. In making this determination, the ALJ relied on testimony from the VE

after posing a hypothetical question that encompassed all of what the ALJ deemed

to be Baxter’s impairments, including Baxter’s borderline intellectual functioning

and depression. See id. at 1229.3 The VE testified that jobs available were a silver

wrapper, a kitchen helper, and a cleaner or housekeeper.

Baxter’s counsel then presented two hypotheticals to the VE, including the

same facts as the ALJ’s hypotheticals, but adding more limitations. Specifically,

3
The ALJ’s hypothetical asked if work existed in the regional or national economy that a 39-year
old person with an eighth-grade education could perform, provided that this person was blind in the
right eye, had no depth perception, should not work around moving or hazardous machinery or drive
motorized vehicles, could not perform overhead work with the left arm, and only could perform
work that was unskilled, simple, and required little independent judgment.

5
counsel referred to some of the moderate and marked limitations that Dr. Ingwell

presented during her MRFC assessment.4 In response to counsel’s hypotheticals,

the VE opined that no jobs were available for a person with those moderate and

marked limitations on his ability to function socially and in the workplace.

We uphold the ALJ’s rejection of Baxter’s counsel’s hypotheticals, which

were based on the limitations in Dr. Ingwell’s MRFC assessment. The ALJ

determined that, despite Dr. Ingwell’s conclusions on Baxter’s MRFC, Baxter was

not markedly impaired in his ability to understand, remember, and carry out simple

instructions. The ALJ was not persuaded by Dr. Ingwell’s assessment because her

conclusions were based on a psychological evaluation during which Dr. Ingwell

admitted that Baxter provided exaggerated responses to the MMPI-II. The ALJ

also noted that the record supported a determination that Baxter could perform

simple, unskilled work. Baxter had work experience as a dishwasher and did not

4
Among other things, Dr. Ingwell concluded that Baxter was markedly limited in his ability: to
remember locations and work-like procedures; to understand and remember short and simple
instructions; and to accept instructions and respond appropriately to criticism from supervisors. Dr.
Ingwell also concluded that Baxter was moderately limited in his ability: to carry out short and
simple instructions; to perform activities within a schedule, maintain regular attendance, and be
punctual within customary tolerances; to sustain an ordinary routine without special supervision to
work in coordination with or in proximity to others without being distracted by them; and to
complete a normal workday and workweek without interruptions from psychologically based
symptoms and to perform at a consistent pace without an unreasonable number and length of rest
periods.

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allege that he quit because he was too depressed or could not understand how to

do this work. And Baxter had not sought mental health care treatment.

The ALJ gave specific reasons for discounting Dr. Ingwell’s psychological

opinion on Baxter’s MRFC: the ALJ properly concluded that Baxter did not have

an impaired MRFC beyond his borderline intellectual functioning and depression.

See Shafarz v. Bowen, 825 F.2d 278, 279 (11th Cir. 1987) (ALJ must state with

particularity and with supporting reasons the weight he gave different medical

opinions). Substantial evidence thus supports the ALJ’s subsequent refusal to

include Dr. Ingwell’s MRFC limitations in the hypothetical to the VE.

AFFIRMED.