[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
U.S. COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ELEVENTH CIRCUIT
________________________ MAY 02, 2007
THOMAS K. KAHN
No. 06-15109 CLERK
Non-Argument Calendar
________________________
D. C. Docket No. 05-01791-CV-RDP
MARTHA GREEN,
Plaintiff-Appellant,
versus
SOCIAL SECURITY ADMINISTRATION,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(May 2, 2007)
Before ANDERSON, BIRCH and BARKETT, Circuit Judges.
PER CURIAM:
Pursuant to 42 U.S.C. § 405(g) Martha Green appeals the district court’s
order affirming the decision by the administrative law judge (“ALJ”) denying her
application for Social Security disability insurance benefits. On appeal, Green
alleges that the ALJ erred by: (1) misapplying the three-part pain standard in
assessing Green’s condition; (2) discrediting the opinion of Green’s treating
physician; and (3) concluding that Green had the residual functional capacity
(“RFC”) to perform a significant number of jobs at the light exertional level. Upon
review of the record, we AFFIRM the denial of benefits.
I. BACKGROUND
Green filed an application for a period of disability and disability insurance
benefits alleging a disability onset date of 5 January 2001. She listed chronic
obstructive pulmonary disease (“COPD”), tendonitis, back problems, anxiety, and
depression as conditions forcing her to discontinue work. Green indicated that at a
job she held until January 2001, she sat 7 hours a day in an 8-hour workday, stood
or walked for a total of 1 hour per day, lifted a maximum of 20 pounds, and
frequently lifted 10 pounds. The Commissioner denied Green’s application both
initially and on reconsideration. Green requested, and was granted, a hearing
before an ALJ.
Dr. David Bryant examined Green in August 1991, regarding pain in her
right forearm to the elbow area that had been bothering her for seven months.
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Green had a slight increased pain upon performing a deep grip. Dr. Bryant noted
that X-rays showed no obvious abnormality and diagnosed her with lateral
epicondylitis. He prescribed Naprosyn and instructed her to apply ice and to
exercise.
Dr. Bryant saw Green again in May 1997, due to complaints of pain in her
arms. He diagnosed her with bilateral tendinitis of the upper extremities and
advised her to continue with physical therapy and wrist splints. Green also visited
Dr. Bryant in May 2000, complaining of pain in both arms for two weeks and a
burning sensation in her left hip for a year. He diagnosed the arm pain as tendinitis
and the hip pain as possible osteoarthritis. A nerve conduction test performed that
month revealed a normal study in the bilateral upper extremities and no evidence
of muscle atrophy, sensory loss, entrapment neuropathy, or peripheral neuropathy.
Green was hospitalized by Dr. Bryant in January 2001, with complaints of
increased shortness of breath, cough, congestion, and inability to breath. She was
treated with intravenous bronchodilators, antibiotics, and nebulizer treatments
along with oxygen. She was diagnosed with COPD exacerbation, emphysema,
bronchitis, hypoxia, hypertension, tobacco abuse, and alcohol abuse.
Dr. Bryant conducted pulmonary function testing in February 2001. He
discovered a mild obstructive lung defect and confirmed airway obstruction by the
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decrease in flow rates. He determined that her lung volumes were within normal
limits.
Green met with Dr. Walter Ross in March 2001, and Dr. Ross noted that
Green had been on oxygen and blood pressure medication, and observed reduced
breath sounds. In April 2001, Dr. Ross noted that Green was “doing quite well not
smoking” and had no significant cough or sputum production. R2-5 at 121. He
concluded that her chest was clear and her COPD had improved. He instructed her
to discontinue oxygen treatments and stop the nebulizer in two weeks, restarting if
needed. Dr. Ross noted that Green was “feeling quite well” when she visited in
May 2001 as well. Id. He noticed no significant cough or sputum production and
that her chest was entirely clear with only slightly diminished breath sounds. He
indicated that she was only using her nebulizer once in a while, and was able to
discontinue oxygen treatment, except for when she occasionally gets tired.
Green saw Dr. Ross again in August 2001, and he indicated that she was
doing well and not smoking, but still fatigued fairly easily, did not walk, and was
not working. He noticed clear, but reduced breath sounds. Consultative
pulmonary function testing was performed in October 2001, and it revealed
moderate obstructive airway disease and low flow rate. Green “gave [a] good
effort” in completing the test but experienced dizziness, shortness of breath,
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coughing, and wheezing. Id. at 122. There were no signs of improvement noted
on the bronchodilator use.
In October 2001, Dr. Bryant noted osteoarthritis regarding pain in Green’s
right middle finger. She also saw him in December 2001, complaining of aches in
her knees, hands, and back. Dr. Bryant diagnosed her with COPD, tendinitis in her
forearms, hypertension, and osteoarthritis at multiple sites, and instructed her to
continue over-the-counter pain relief. During that office visit, Dr. Bryant
completed a Physical Capacities Evaluation, a Clinical Assessment of Pain, and a
Clinical Assessment of Fatigue/Weakness. Dr. Bryant concluded that Green could
lift five pounds or less occasionally, sit for two hours, and walk or stand for two
hours during each eight hour workday. He determined that she could not work
around hazardous machinery or dust, allergens, or fumes. Dr. Bryant concluded
that “[p]ain is present to such an extent as to be distracting to adequate
performance of daily activities or work,” and that physical activity would lead to
“[g]reatly increased pain and to such a degree as to cause distraction from tasks or
total abandonment of tasks.” Id. at 145. He stated that Green suffered from
fatigue/weakness that he “found to be virtually incapacitating” to her, and that
physical activity would greatly increase the fatigue/weakness “to such a degree as
to cause total abandonment of tasks.” Id. at 147 .
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Dr. Ross examined Green in January 2002, and noted that she was “doing
quite well,” and had “minimal cough, minimal sputum production, [and] minimal
shortness of breath.” Id. at 150 . He diagnosed her as having mild COPD. In July
2002, Dr. Ross noted that Green, again, was “doing quite well,” with no significant
cough or sputum production. Id. He indicated that she was sleeping with oxygen
at night and her hypertension was controlled with medication.
During Green’s administrative hearing in September 2002, Norma-Jill
Jacobson, a vocational expert (VE), testified that Green’s employment history as a
sewing machine operator was “at the light level of exertion,” and her experience
was “unskilled or very low end of semiskilled with no transferability.” Id. at 174.
The ALJ asked Jacobson for her opinion regarding:
a hypothetical person of Ms. Green’s age, education and work
experience. And let’s assume that this hypothetical person could
occasionally lift and carry 20 pounds, could frequently lift and carry
10 pounds, could stand and walk for up to six hours in an eight-hour
day and sit for up to six hours in moderate pain and fatigue with a
moderate [e]ffect on the person’s ability to concentrate. And this
hypothetical person needs a work environment that is free of dust,
fumes and gases, and has a temperature and humidity control
atmosphere.
Id. Jacobson responded that such a hypothetical person would be unable to return
to any of the past work that Green performed, because of cotton fabric dust present
in the air in those environments. Jacobson stated that a person with those
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hypothetical conditions could work in the local or national economy as a daycare
helper, kindergarten aide, or teacher assistant, of which there are about 2000
positions in Alabama. Additional sedentary jobs included: taking orders or
soliciting as a telephone operator (2000 positions); information clerk, both at a
light and a sedentary level of exertion (a couple thousand positions in
combination); a cashier, both at a light and a sedentary levels of exertion (15,000 to
20,000 positions); and other possibilities inside Alabama and elsewhere. Jacobson
stated that any possibility of employment would be eliminated if that hypothetical
person were to experience fatigue to the extent that the person could only stand and
walk for two hours and sit for two hours during every eight hour shift.
At her hearing, Green testified that she is an unemployed 49-year old woman
with an eighth grade education, who had not passed the GED test or taken any
vocational training. To treat her COPD, she testified that she uses an oxygen tank
while sleeping at night and during infrequent trips outside when the temperature
was hot. She testified that twice a week, at the direction of her doctor, she attempts
to walk two laps at the track for exercise but can only complete one lap before she
needs to retreat to her car for her oxygen. She noted that she suffers shortness of
breath about halfway around the track. She indicated that housework is difficult
for her, but possible if she works slowly. She stated that she has trouble sitting for
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long periods because of lower back pain.
The ALJ noticed that Green had braces on both arms from her fingers to her
elbows and she responded that she wore them constantly for tendinitis, which she
testified that she began to suffer from in 1990. She explained that she takes
Bufferin for the pain, but it was the tendinitis that forced her to quit her job as a
sewer in 1994. She stated that she can only lift about five pounds and needs both
hands to pick up a gallon of milk. She asserted that she can grip a small paper cup
with one hand, but is unable to open a jar.
The ALJ determined that Green was not disabled after concluding that Green
was unable to return to her former employment, but was “able to make an
adjustment to other work which exists in significant numbers in the national
economy.” Id. at 16. The ALJ found that Green last engaged in substantial gainful
activity on 5 January 2001. The ALJ found that her COPD and hypertension
amounted to severe impairments, but that her tendinitis and osteoarthritis were
considered to be non-severe impairments because they “do not significantly limit
her ability to perform basic work-related functions” and “are intermittent.” Id.
The ALJ also found no limitations of function resulting from any alleged anxiety
or depression. The ALJ determined that Green did not have “an impairment or
combination of impairments which, either singly or in combination, meet or equal
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a listed impairment” in 20 C.F.R § 404.1520(d). Id. at 20.
The ALJ then examined Green’s RFC by considering her subjective
complaints and our standard for reviewing subjective complaints of pain. The ALJ
found that “[a]lthough the documentary evidence establishes an underlying
medical condition capable of producing some pain and limitation, substantial
evidence does not support a conclusion that the objectively determined medical
condition is of such severity that it could reasonably be expected to give rise to the
level of pain and limitations alleged by [Green].” Id. The ALJ determined that
Green “experiences no more than moderate limitations resulting from her
[COPD],” and that “[h]er testimony [was] found credibly only to the extent that it
[was] consistent with” limitations of “moderate fatigue with its moderate effect of
her ability to maintain concentration, persistence, and pace.” Id. at 21. With
regard to Green’s tendinitis and osteoarthritis, the ALJ found that the medical
evidence “simply do[es] not support the limitations imposed” by the Physical
Capacities Evaluation, Clinical Assessment of Pain, and Clinic Assessment of
Fatigue/Weakness completed by Dr. Bryant, and therefore, the ALJ afforded “no
weight . . . [to] Dr. Ross’s opinion of the claimant’s limitations.” Id. Based on the
entire record, the ALJ determined “that [Green] is limited to occasionally lifting
and carrying twenty pounds, frequently lifting and carrying ten pounds;” that, “in
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an eight-hour workday, she can stand and/or walk six hours and sit six hours;” and
that “[s]he experiences moderate fatigue with its moderate effect on her ability to
concentrate, and requires a temperature and humidity controlled environment, free
of dust, fumes, and gasses.” Id.
Consistent with the testimony of the VE, the ALJ found that Green was
unable to perform her past relevant work as a sewing machine operator because of
the prevalence of cotton dust in that environment. The ALJ determined, however,
that “considering [Green’s] age, educational background, prior work experience,
and [RFC], [she] is capable of performing work which exists in significant
numbers in the national economy.” Id. at 22. Accordingly, the ALJ ruled that
Green was “not disabled.” Id.
The Appeals Council denied Green’s request for review. The district court
affirmed the Commissioner’s decision. This appeal followed.
II. STANDARD OF REVIEW
We review the Commissioner’s decision in a Social Security case “to
determine if it is supported by substantial evidence and based on proper legal
standards.” Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir.
2004) (per curiam) (citation and internal quotations omitted). We have defined
substantial evidence as “more than a scintilla” and as “such relevant evidence as a
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reasonable person would accept as adequate to support a conclusion.” Id. (citation
and internal quotations omitted). The legal conclusions employed by the
Commissioner are reviewed de novo. Lewis v. Barnhart, 285 F.3d 1329, 1330
(11th Cir. 2002) (per curiam).
III. DISCUSSION
A. Pain Standard
Green argues that had the ALJ properly considered the medical evidence in
the record, he would have found her disabled based on her complaints of pain.
“An individual claiming Social Security disability benefits must prove that she is
disabled.” Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005) (per curiam)
(citation omitted). We have held that “[i]n order to establish a disability based on
testimony of pain and other symptoms, the claimant must satisfy two parts of a
three-part test showing: (1) evidence of an underlying medical condition; and (2)
either (a) objective medical evidence confirming the severity of the alleged pain; or
(b) that the objectively determined medical condition can reasonably be expected
to give rise to the claimed pain.” Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th
Cir. 2002) (per curiam) (citation omitted). We have applied that standard to
complaints of subjective conditions other than pain. Holt v. Sullivan, 921 F.2d
1221, 1223 (11th Cir. 1991) (per curiam) (citation omitted). An ALJ that
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discredits subjective testimony “must articulate explicit and adequate reasons for
doing so,” and “failure to articulate the reasons for discrediting subjective
testimony requires, as a matter of law, that the testimony be accepted as true.”
Wilson, 284 F.3d at 1225 (citations omitted).
We find that substantial evidence supports the ALJ’s conclusion, which he
bolstered with articulated explicit and adequate reasons, that the objectively
determined medical condition does not “give rise to the level of pain and
limitations alleged by [Green].” R2-5 at 20. Green was initially hospitalized, and
rendered unable to work, in early January 2001, for breathing complications
resulting from COPD. The accompanying documentary evidence, however,
indicates that her condition had steadily improved. At an examination in April
2001, after she had quit smoking, Dr. Ross, the physician treating her lung
condition, instructed Green to discontinue oxygen treatments because she was
“doing quite well” and had no significant cough or sputum production. Id. at 121.
Similar positive comments appear on Dr. Ross’s charts throughout the course of
his examinations, including his last and most recent contained in the record, from
July of 2002. With regard to her osteoarthritis and tendinitis, Dr. Bryant, her
primary care physician, treated Green on 4 December 2001, and chose not to
prescribe narcotics; instead, he instructed her to continue using over-the-counter
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pain medication. The ALJ properly found that Green had no more than moderate
limitations from COPD/emphysema and had moderate fatigue. We find that
substantial evidence supports the ALJ’s finding that Green’s subjective complaints
do not rise to the level of a disability, based on the controlling pain standard.
B. Green’s Treating Physician
Green argues that the ALJ erred by dismissing Dr. Bryan’s opinion that her
disabilities prevented her from working, as expressed in the Physical Capacities
Evaluation, Clinical Assessment of Pain, and Clinical Assessment of
Fatigue/Weakness. We have noted that “[i]t is well-established that the testimony
of a treating physician must be given substantial or considerable weight unless
good cause is shown to the contrary.” Crawford, 363 F.3d at 1159 (citation and
internal quotations omitted). Good cause to discount a treating physician may arise
where a report “is not accompanied by objective medical evidence or is wholly
conclusory.” Id. (citation and internal quotations omitted). The ALJ may also
devalue the opinion of a treating physician where the opinion is contradicted by
objective medical evidence. Ellison v. Barnhart, 355 F.3d 1272, 1275-76 (11th
Cir. 2003) (per curiam) (citation omitted).
Here, the ALJ had good cause to discredit Dr. Bryant’s opinion. See
Crawford, 363 F.3d at 1159. The ALJ afforded no weight to Dr. Bryant’s opinion–
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as expressed in the Physical Capacities Evaluation, Clinical Assessment of Pain,
and Clinical Assessment of Fatigue/Weakness–that Green suffered from distracting
pain and virtually incapacitating fatigue and weakness that could lead to
abandonment of tasks.1 The office records of Dr. Ross indicate that Green was
“[d]oing quite well” with her respiratory problem shortly after Dr. Bryant
completed the forms in December 2001. R2-5 at 150; see also id. at 121 (noting in
other office visits that Green was “[f]eeling quite well” and “[d]oing well”). Dr.
Bryant’s treatment notes indicate that on the same day he completed the forms, he
examined her and did not prescribe any narcotics for her pain related to her
tendinitis; rather he instructed her to continue the use of over-the-counter
medication. Moreover, Green testified that the use of over-the-counter medication
“eases [the pain] off.” Id. at 170. Dr. Ross’s office records and Green’s testimony
amount to substantial evidence supporting the ALJ’s decision to devalue the
opinion of Dr. Bryant. See Wilson, 284 F.3d at 1226 (finding the decision to
discredit subjective pain testimony was supported by evidence that testimony was
inconsistent with claimant’s condition, activities, and limited use of pain
medication).
1
Although the ALJ states that “no weight is afforded to Dr. Ross’s opinion of the claimant’s
limitations,” R2-5 at 21, it appears clear from the context, and Green concedes, that the ALJ was
actually referring to Dr. Bryant.
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C. Residual Functional Capacity
Green argues that without Dr. Bryant’s opinion, there is nothing in the
record for the ALJ to base his RFC conclusion that she can perform light work. As
mentioned previously, the burden lies with the claimant to prove her disability.
Moore, 405 F.3d at 1211. In the fourth step of that analysis, the ALJ determines
the claimant’s RFC and her ability to return to her past relevant work. Phillips v.
Barnhart, 357 F.3d 1232, 1238 (11th Cir. 2004). In determining the claimant’s
RFC, the ALJ “must determine if the claimant is limited to a particular work
level.” Id. The light work level requires the ability to lift “no more than 20 pounds
at a time with frequent lifting or carrying of objects weighing up to 10 pounds” and
“a good deal of walking or standing, or when it involves sitting most of the time[,]
. . . some pushing and pulling of arm or leg controls.” 20 C.F.R § 404.1567(b).
Although a claimant may provide a statement containing a physician’s opinion of
her remaining capabilities, the ALJ will evaluate such a statement in light of the
other evidence presented and the ultimate determination of disability is reserved
for the ALJ. 20 C.F.R §§ 404.1513, 404.1527, 404.1545.
If a claimant proves that she is unable to perform her past relevant work, in
the fifth step, “the burden shifts to the Commissioner to determine if there is other
work available in significant numbers in the national economy that the claimant is
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able to perform.” Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999) (citation
omitted). The “preferred method” for the Commissioner to demonstrate, by
substantial evidence, that the claimant can perform other jobs is through the
testimony of a vocational expert (“VE”). Id. at 1229. Should the Commissioner
“demonstrate that there are jobs the claimant can perform, the claimant must prove
she is unable to perform those jobs in order to be found disabled.” Id. at 1228.
Green argues that once the ALJ decided to discredit Dr. Bryant’s evaluation,
the record lacked substantial evidence to support a finding that she could perform
light work. Dr. Bryant’s evaluation, however, was the only evidence that Green
produced, other than her own testimony, that refuted the conclusion that she could
perform light work. Once the ALJ determined that no weight could be placed on
Dr. Bryant’s opinion of the Green’s limitations, the only documentary evidence
that remained was the office visit records from Dr. Bryant and Dr. Ross that
indicated that she was managing her respiration problems well, that she had
controlled her hypertension, and that her pain could be treated with over-the-
counter medication. Thus, substantial evidence supports the ALJ’s determination
that Green could perform light work. The ALJ did not substitute his judgment for
that of Dr. Bryant; rather, he determined that Dr. Bryant’s opinion was inconsistent
with objective medical evidence in the record.
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After the ALJ concluded that Green could not perform her past work as a
sewing machine operator, due to the prevalence of cotton dust in sewing factories,
the burden then shifted to the Commissioner to prove that Green could perform
some work in the national economy. The VE affirmed that “a hypothetical person
of Ms. Green’s age, education and work experience . . . [who] could occasionally
lift and carry 20 pounds, could frequently lift and carry 10 pounds, could stand and
walk for up to six hours in an eight-hour day and sit for up to six hours in moderate
pain and fatigue with a moderate affect on the person’s ability to concentrate . . .
[in] a work environment that is free of dust, fumes and gases, and has a
temperature and humidity control atmosphere,” could work as a daycare helper,
kindergarten aide, teacher assistant, telephone operator, information clerk, or
cashier. R2-5 at 174-75. According to the VE, the local economy contained
sufficient numbers of such positions. Green did not present any evidence
controverting the VE. Thus, substantial evidence supports the ALJ’s conclusion
that Green could perform jobs in the local economy and, therefore, was not
disabled.
IV. CONCLUSION
Substantial evidence supports the decision of the ALJ to deny Green Social
Security disability benefits. The ALJ employed the controlling standard regarding
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Green’s allegations of pain and other subjective conditions; justifiably discredited
the opinion of Green’s primary care physician in favor of objective evidence; and
appropriately concluded that Green could perform work at the light exertional
level. Accordingly, we AFFIRM.
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