[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
May 12, 2006
No. 05-16463 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00881-CV-J-MCR
PATRICIA M. JONES,
Plaintiff-Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(May 12, 2006)
Before BARKETT, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Patricia M. Jones appeals the district court’s affirmance of the Social
Security Administration’s (“SSA”) denial of supplemental security income
(“SSI”), 42 U.S.C. § 1383(c)(3), and disability insurance benefits (“DIB”), 42
U.S.C. § 405(g). On appeal, Jones argues that the administrative law judge’s
(“ALJ”) determination that she was not disabled during the relevant time period
was not supported by substantial evidence because (1) the ALJ did not consider the
relevant medical evidence and Social Security Ruling (“SSR”) 02-2p, (2) the ALJ’s
hypothetical question posed to the vocational expert did not comprehensively
describe Jones’s impairments, (3) the ALJ’s finding with regard to Jones’s mental
impairment was not supported by substantial evidence, and (4) the ALJ’s finding
that Jones’s carpal tunnel syndrome was corrected by surgery was also not
supported by substantial evidence. Jones further argues that the ALJ erred in
failing to consider her eligibility for a closed period of disability. We will address
each of Jones’s arguments in turn.
I. ALJ’s Determination of Not Disabled
We review a social security case to determine whether the Commissioner’s
decision is supported by substantial evidence and whether the correct legal
standards were applied. Lewis v. Callahan, 125 F.3d 1436, 1439 (11th Cir. 1997).
The Commissioner’s decision will not be disturbed “if, in light of the record as a
whole, it appears to be supported by substantial evidence,” which is “more than a
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scintilla and is such relevant evidence as a reasonable person would accept to
support a conclusion.” Id. at 1439-40.
A claimant applying for disability benefits must prove that she is disabled.
20 C.F.R. § 404.1512; Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005).
The Social Security Regulations outline a five-step sequential evaluation process
for determining whether a claimant is disabled. 20 C.F.R. § 404.1520; Jones v.
Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999). First, the claimant must show that
she has not engaged in substantial gainful activity. Jones, 190 F.3d at 1228.
Second, she must prove she has a severe impairment or combination of
impairments. Id. In step three, if her impairment meets or equals a listed
impairment, she is automatically found disabled. Id. If it does not, she must move
on to step four, where she must prove that she is unable to perform her past
relevant work. Id. Finally, if the claimant cannot perform past relevant work, then
the burden shifts to the Commissioner in the fifth step to show that there is other
work available in significant numbers in the national economy that the claimant is
able to perform. Id.
A. Medical Evidence and SSR 02-2p
On appeal, Jones argues that the ALJ’s decision did not properly incorporate
the clarification issued by the Commissioner’s SSR 02-2p to the extent that the
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ruling indicates that (1) chronic fatigue may be associated with IC, and (2) IC
symptoms and the effectiveness of a given treatment can vary. Jones maintains
that the ALJ’s finding, that the record did not corroborate a systemic source for her
fatigue, is contradicted by SSR 02-2p. Jones also contends that Dr. Reisfield’s
report directly contradicted the ALJ’s findings that (1) Jones’s claim that she
needed to lie down two or three times per day was self-serving, and (2) Jones can
sustain sedentary work activities.
Social Security Ruling 02-2p clarifies the Commissioner’s policies for
evaluating claims for disability on the basis of IC. 67 Fed.Reg. 67436-01. Social
Security rulings “are binding on all components of the Social Security
Administration.” 20 C.F.R. § 402.35(b)(1). According to SSR 02-2p, IC “may be
associated with other disorders,” including chronic fatigue syndrome. 67 Fed.Reg.
67436-01 (emphasis added). Once the ALJ determines that a claimant has an IC
impairment, the ALJ must determine, in accordance with the five-step sequential
evaluation process, whether the impairment prevents the claimant from doing past
relevant work or other work existing in substantial numbers in the national
economy. Id.
Here, Jones maintains that the ALJ’s finding, that “the record does not
corroborate any systemic source for” Jones’s chronic fatigue, is not consistent with
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SSR 02-2p because the ruling explicitly states that chronic fatigue may be
associated with IC. However, SSR 02-2p simply notes that some IC claimants may
also have chronic fatigue. The ruling, therefore, does not require a finding of
chronic fatigue for each claimant that has IC. Further, as the Commissioner notes,
the ALJ’s written decision is consistent with SSR 02-2p in that the ALJ followed
the five-step sequential evaluation process once the ALJ made a finding that Jones
had an IC impairment. See 67 Fed.Reg. 67436-01. Thus, although the ALJ’s
decision does not specifically cite to SSR 02-2p, the record nevertheless does not
support Jones’s contention that the ALJ failed to consider SSR 02-2p or to properly
incorporate the ruling.
Additionally, Jones argues that the ALJ failed to “accurately and completely
report the opinion of Dr. Reisfield” with regard to Dr. Reisfield’s conclusions on
Jones’s inability to work. The Commissioner maintains that Jones waived this
issue by failing to raise it before the district court. See also Jones, 190 F.3d at
1228 (declining to consider an argument raised for the first time on appeal). As
Jones notes in her reply, however, she did assert in the district court that the district
court overlooked Dr. Reisfield’s assessment that Jones’s symptoms were
“exacerbated by standing, walking, or sitting” (although Jones did not mention
Dr. Reisfield by name, she did cite to his report following her assertion). Thus, to
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the extent that Jones argues on appeal that the ALJ did not completely and
accurately report that specific portion of Dr. Reisfield’s opinion, her argument is
not waived. In all other respects concerning Dr. Reisfield’s report, however, Jones
has waived those arguments. See Jones, 190 F.3d at 1228.
Nonetheless, Jones’s argument is without merit because the ALJ clearly
determined that Jones was limited to sedentary work activities in which she was
not required to climb, crawl, stoop, or bend, and in which she would have the
option to alternate between sitting and standing. Moreover, the ALJ noted that Dr.
Reisfield found that Jones’s symptoms were “exacerbated by standing, walking, or
sitting,” and that “[l]ying down, an IC diet, opioids, and inferential therapy
ameliorated her symptoms.” Thus, the ALJ’s assessment is consistent with the
findings set forth in Dr. Reisfield’s report.
B. Hypothetical Question to the Vocational Expert
On appeal, Jones argues that the ALJ’s hypothetical did not include Jones’s
impairments with regard to her decreased ability to concentrate and focus. Jones
asserts that the ALJ did not incorporate Dr. Yates’s finding, that her ability to
concentrate was impacted by her physical impairments, into the hypothetical.
Despite the ALJ’s finding at step four of the sequential evaluation, that Jones
could perform her past relevant work as a telemarketer, the ALJ went on to step
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five of the sequential evaluation and posed a hypothetical to the vocational expert
(“VE”) to determine whether Jones could perform other work that existed in
significant numbers in the national economy. In order for a VE’s testimony to
constitute substantial evidence that a claimant can perform other work, “the ALJ
must pose a hypothetical question which comprises all of the claimant’s
impairments.” Jones, 190 F.3d at 1229.
First, the ALJ found that Jones’s activities of leading an IC support group,
attending church, visiting her sister, reading, watching television, and using the
computer did not support a finding that Jones’s concentration was deficient. The
ALJ noted that Jones did not indicate that she had any difficulty comprehending or
following along when she read, watched television, or used the computer. Based
on Jones’s own testimony, then, the ALJ did not have reason to suspect that Jones
had concentration difficulties. Second, Dr. Yates’s report indicated that Jones’s
thought process was coherent, her concentration and memory abilities were fair,
and her orientation was good. Dr. Yates also found that Jones had good judgment
and a strong work ethic, but that her many physical problems seemed to impede
her employability. Therefore, Dr. Yates’s report, coupled with Jones’s own
testimony concerning her daily activities, do not necessitate a finding that Jones
has severe impairments in her concentration. Accordingly, the ALJ’s decision not
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to include Jones’s concentration abilities in the hypothetical to the VE is supported
by substantial evidence in the record. See Crawford v. Comm’r of Soc. Sec., 363
F.3d 1155, 1161 (11th Cir. 2004) (holding that an ALJ is “not required to include
findings in the hypothetical that the ALJ [has] properly rejected as unsupported”).
C. Jones’s Mental Impairments
Jones argues on appeal that the ALJ’s finding with regard to her mental
status, specifically, that her mental problems were “situational” to stress over
financial and family problems, was inaccurate and was not substantially supported
by the record. Jones maintains that Dr. Larsen’s assessment of Jones’s mental
status described her as more severely mentally impaired than the ALJ’s decision
suggested. Jones contends that Dr. Larsen found that Jones’s mental status was
“very complicated,” while the ALJ found that her mental health was “situational.”
As the Commissioner notes, the ALJ’s finding, that Jones did not suffer
from mental impairments, was supported by substantial evidence. First, the ALJ’s
finding that Jones’s mental difficulties were situational was consistent with
Dr. Larsen’s 2000 findings that, while Jones was not then depressed, she had
suffered from depression and was living in a very stressful environment. Second,
some of Jones’s other treating physicians noted that Jones did not exhibit any
evidence of a psychological impairment. Dr. Tran indicated in 2001 that he did not
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find that Jones had any symptoms of a mental disorder. Further, Dr. Rowe noted in
2003 that Jones did not have any psychological symptoms, that her affect was
normal, and that her mood was pleasant. Accordingly, the record substantially
supports the ALJ’s determination that Jones’s mental impairments, if any, were
situational.
D. Jones’s Carpal Tunnel Syndrome
On appeal, Jones argues that her carpal tunnel syndrome was not corrected
by surgery and that the ALJ’s finding to the contrary was incorrect. Jones
contends that Dr. Yoffee’s report supports her assertion. Jones also maintains that
Dr. Scales’s report, that Jones suffered from “‘simple chronic changes compatible
with her prior carpal tunnel surgery but there were no acute changes,’” actually
means that she had continuing (chronic) problems rather than short but severe
(acute).
Based on the record, the ALJ’s finding with regard to Jones’s carpal tunnel
syndrome is supported by substantial evidence. Here, the ALJ found that “[p]ost-
operative examinations of [Jones’s] upper extremities were negative for objective
signs of nerve compression, and there is no evidence that her carpal tunnel
syndrome was not corrected by surgery.” In 2000, Dr. Yoffee found that, among
Jones’s multiple medical issues, “her main problems appear[ed] to be recurrence of
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her carpal tunnel syndrome as well as severe depression and chronic anxiety.”
Dr. Yoffee’s neurological and skeletal examinations were negative, and he
recommended that Jones receive “further neurological and psychiatric evaluation.”
Later in 2000, Dr. Scales performed an EMG/Nerve Conduction study, which
revealed “simple chronic changes compatible with [Jones’s] prior carpal tunnel
surgery but there were no acute changes.” However, Dr. Scales did not
recommend any further testing, treatment, or operations for Jones’s carpal tunnel
syndrome. In May 2001, Dr. Tran examined Jones and found that Jones had a
history of carpal tunnel that improved after surgery on both of her wrists. Dr. Tran
also found that, while Jones had pain in her wrists, she did not have any
(1) limitations of movement, (2) numbness, (3) difficulty with her grip, or
(4) limitations of her gross and fine movements. Dr. Tran diagnosed that Jones
had a carpal tunnel operation in both hands, but he did not recommend any further
tests or treatment with respect to Jones’s carpal tunnel syndrome.
Given the medical evidence on the record, it cannot be said that the ALJ’s
determination, that Jones’s carpal tunnel syndrome had been corrected, was not
supported by substantial evidence. In fact, Dr. Yoffee’s examination, which
indicated that Jones’s main problems appeared to include the recurrence of her
carpal tunnel syndrome, took place prior to Dr. Scales’s and Dr. Tran’s
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examinations that each found Jones’s carpal tunnel syndrome had not worsened.
Further, even Dr. Yoffee did not make an explicit diagnosis that Jones had
recurring carpal tunnel syndrome, nor did he suggest a treatment plan more than
recommending additional neurological evaluation. It appears that Dr. Scales’s and
Dr. Tran’s evaluations were just the additional testing that Dr. Yoffee called for,
and those evaluations did not reveal that Jones’s carpal tunnel syndrome had not
been corrected. Thus, the ALJ’s finding with regard to Jones’s carpal tunnel
syndrome was supported by substantial medical evidence.
II. Closed Period of Disability
On appeal, Jones also argues that, if the ALJ’s determination that Jones did
not suffer from disabling IC was correct, the ALJ should have considered Jones’s
eligibility for a closed period of disability because Jones’s debilitating symptoms
exceeded a 12-month duration.
Jones’s argument on appeal does not sufficiently provide us with the specific
12-month time period for which she believes she is entitled to a closed period of
disability. Jones merely argues that her disability lasted more than 12 months. To
the extent that Jones’s argument is that her closed period of disability was the
entire period from her alleged onset date until her administrative hearing, Jones’s
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argument must fail because, based on the above analysis, the ALJ’s finding, that
Jones was not disabled for any time during that entire period, was supported by
substantial evidence. Accordingly, the ALJ did not err in failing to consider
Jones’s eligibility for a closed period of disability.
Upon review of the record, and consideration of the parties’ briefs, we
discern no reversible error. Thus, we affirm the district court’s affirmance of the
SSA’s denial of SSI and DIB.
AFFIRMED.
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