Elois P. Russell v. Michael J. Astrue

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 15, 2009
No. 08-16812 THOMAS K. KAHN
Non-Argument Calendar
________________________

D. C. Docket No. 07-00157-CV-WLS-1

ELOIS P. RUSSELL,

Plaintiff-Appellant,

versus

MICHAEL J. ASTRUE,
Commissioner of Social Security,

Defendant-Appellee.

________________________

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

(June 15, 2009)

Before BIRCH, HULL and KRAVITCH, Circuit Judges.

PER CURIAM:
 Elois Russell appeals the district court’s order affirming the decision of the

Social Security Administration to deny her application for social security disability

benefits. For the reasons stated below, we vacate and remand.

BACKGROUND

For approximately eighteen years before she applied for social security

benefits, Russell worked as a dry kettle feeder, lifting and carrying wood and

feeding wood into a kiln. In May 2004, Russell applied for disability benefits,

alleging that her ability to work was limited by pain in the neck, right arm, left

wrist, left knee, ankles, and lower back. She also alleged sickness related to her

high blood pressure and kidney stones. In subsequent disability reports, Russell

claimed that her heart raced and that she experienced pain and swelling in her left

side, chest pain, and severe pain in the right side. Russell first asserted that her

onset date was August 2, 2003, but later amended the onset date to July 6, 2004,

her last day of work.

The Social Security Commissioner denied her application initially and on

reconsideration. Russell then requested and received a hearing before an

Administrative Law Judge (the “ALJ”). The ALJ determined that Russell was not

disabled. The Appeals Council denied review, making the ALJ’s decision the

final decision of the Social Security Commissioner.

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 Russell then initiated the instant civil action pursuant to 42 U.S.C. § 405(g)

seeking review of the Commissioner’s decision. The district court, adopting the

Report and Recommendation of the Magistrate Judge, affirmed the decision of the

Commissioner.

STANDARD OF REVIEW

“[W]e review de novo the legal principles upon which the Commissioner’s

decision is based.” Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). We

review factual findings of the Commissioner, however, with great deference. Id.

We will not re-weigh evidence or substitute our judgment for that of the

Commissioner, but instead review the entire record to determine if the decision

reached is reasonable and supported by substantial evidence. Cornelius v.

Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991). Substantial evidence is “such

relevant evidence as a reasonable person would accept as adequate to support a

conclusion.” Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001) (quotation

omitted). There must be “more than a mere scintilla” of evidence to support the

ALJ’s conclusions. Falge v. Apfel, 150 F.3d 1320, 1322 (11th Cir. 1998)

(quotations omitted). We review the decision of the ALJ as the Commissioner’s

final decision where, as here, the ALJ denies benefits and the Appeals Council

denies review of the ALJ’s decision. Doughty, 245 F.3d at 1278.

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 DISCUSSION

The claimant carries the burden of demonstrating the existence of a

disability as defined by the Social Security Act. Brady v. Heckler, 724 F.2d 914,

918 (11th Cir. 1984). Disability “is defined by 42 U.S.C. § 1382c(a)(3)(A) as

inability ‘to engage in any substantial gainful activity by reason of any medically

determinable physical or mental impairment which can be expected to result in

death or which has lasted or can be expected to last for a continuous period of not

less than 12 months.’” McCruter v. Bowen, 791 F.2d 1544, 1545 (11th Cir. 1986).

The social security regulations establish a five-step, “sequential evaluation

process,” to evaluate disability claims. Id. at 1546; 20 C.F.R. § 416.920. First, the

claimant must establish that she is no longer “doing substantial gainful activity.”

20 C.F.R. § 416.920(a)(4)(i). Second, the Commissioner considers the medical

severity of the claimed impairments; a claimant will be considered disabled only if

she has a severe medically determinable impairment, or a combination of

impairments. 20 C.F.R. § 416.920(a)(4)(ii). Third, the severe impairment must

meet or equal one of the listed impairments in Appendix 1 and meet the duration

requirement. 20 C.F.R. § 416.920(a)(4)(iii). Fourth, the Commissioner assesses

the claimant’s residual functional capacity and compares that capacity to her past

relevant work; if she can still perform her past relevant work, the claimant is not

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“disabled.” 20 C.F.R. § 416.920(a)(4)(iv). Finally, if the claimant is found to be

unable to perform her past relevant work, the Commissioner will assess her

residual functional capacity and age, education, and work experience to see if she

could perform other work; if the claimant can make an adjustment to other work,

she will not be found disabled. 20 C.F.R. § 416.920(a)(4)(v).

Russell argues that the ALJ erred by (i) failing to consider all of her alleged

impairments in determining her residual functional capacity, (ii) erroneously

rejecting the opinion of an examining physician, (iii) failing to support properly

his credibility finding, and (iv) finding that Russell could return to her past

relevant work. We address each in turn.

Consideration of Other Impairments

Russell argues that the ALJ did not consider fully the effect of her shoulder

and back impairments. She also asserts that the ALJ failed to properly account for

all of her claimed impairments by not considering her untreated high blood

pressure.

As for Russell’s shoulder and neck impairments, the ALJ summarized the

diagnoses of the examining and consulting physicians concerning her back and

neck problems. The ALJ considered Russell’s impairments to be “degenerative

disc disease/degenerative joint disease of the cervical spine with mild tenderness

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at C5-6, mild impairment right shoulder; minor thoracic scoliosis; mild irregularity

left wrist; and mild to moderate lumbar levo scoliosis.” The ALJ acknowledged

these impairments, but concluded that the “combined effect and combination of

these impairments do not significantly limit her ability to perform basis work-

related activities.” Thus, the ALJ did not fail to consider or ignore her shoulder

and neck pain; he simply found that they did not cause disability.

Russell’s arguments that the ALJ did not consider the full effect of these

judgments are more in the manner of disagreements with his opinion, rather than

allegations that the ALJ applied the wrong legal standard. Our review, however, is

narrow and “[w]e may not decide the facts anew, reweigh the evidence, or

substitute our judgment for that of the [Commissioner]. Even if we find that the

evidence preponderates against the [Commissioner’]’s decision, we must affirm if

the decision is supported by substantial evidence.” Bloodsworth v. Heckler, 703

F.2d 1233, 1239 (11th Cir. 1983). Here, the Commissioner gave specific reasons

why he felt that her impairments did not rise to the level of disability, and we are

precluded from re-weighing the evidence and reversing this decision.1

1
The ALJ reviewed the medical records and noted that none of the x-rays or other tests
showed “extreme” or “acute” abnormalities. He determined that, although Russell had some
abnormalities, there was “no objective medical evidence of any abnormality to cause such
limitations” as were found by the examining physician. Additionally, he relied on the examining
physician’s findings that Russell’s “physical examination was unremarkable; no atrophy;
coordination and functional use of upper extremities and lower extremities normal; full range of

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 Russell’s argument that the ALJ erred by not considering her untreated high

blood pressure as a severe impairment also fails. In his opinion, the ALJ took note

of Russell’s blood pressure readings as stated in her medical records; those

readings appear to be high. There was, however, no evidence that the high blood

pressure was causing her to be unable to work. “[T]he severity of a medically

ascertained disability must be measured in terms of its effect upon ability to work,

and not simply in terms of deviation from purely medical standards of bodily

perfection or normality.” McCruter, 791 F.2d at 1547; Moore, 405 F.3d at 1213

n.6 (“[T]he mere existence of [] impairment[] does not reveal the extent to which

[it] limit[s] her ability to work or undermine the ALJ’s determination in that

regard.”). In other words, an abnormality that does not cause an impairment will

not support a finding of disability. And the claimant bears the burden of proving

that a given impairment causes her to be disabled. Carnes v. Sullivan, 936 F.2d

1215, 1218 (11th Cir. 1991). Russell has not identified documentation in her

medical records which demonstrates that her high blood pressure causes her to be

“disabled.” Thus, we conclude that the ALJ did not err by ignoring Russell’s

untreated high blood pressure as a severe impairment.

motion of all joints, grip and pinch normal.” (emphasis in original).

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Discrediting the Opinion of the Examining Physician

Russell next argues that the ALJ erred by discrediting the opinion of the

examining physician. “The testimony of a treating physician must ordinarily be

given substantial or considerable weight unless good cause is shown to the

contrary.” MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986). It is, not

however, unlawful to discredit the opinion of an examining or treating physician,

so long as the Commissioner “specif[ies] what weight is given to a treating

physician’s opinion and any reason for giving it no weight . . . .” Id.

Here, the ALJ discredited the opinion of the examining physician, Dr. Bari,

that Russell was limited in walking (no more than one quarter mile) and lifting (no

more than 15 pounds) because he found that “there is no objective medical

evidence of any abnormality to cause such limitations.” Not only did the ALJ find

that Russell’s other medical records did not support Dr. Bari’s opinion that Russell

was disabled, but the ALJ noted that Dr. Bari’s own examination of Russell

conflicted with his opinion because his examination revealed her to be “normal” in

nearly all respects. Accordingly, the ALJ had good cause to determine that Dr.

Bari’s opinion should be given little weight, and that more weight should be given

to his physical exam findings and Russell’s other medical records. Because the

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ALJ articulated his specific, cogent reasons for discrediting the opinion of the

examining physician, we find no error.

The Credibility Finding

Russell also asserts that the ALJ erred in ignoring her subjective complaints

of pain and inability to work. Russell argues that, because the ALJ did not

properly consider her own testimony concerning her pain and activity limitations,

he erred by not asking the vocational expert a hypothetical question to elicit an

opinion on whether these complaints gave rise to a disability. Russell contends

that the ALJ failed to discuss her stated activities of daily living in its opinion,

including her testimony that she required assistance hanging the laundry and that

she required an hour break after performing an hour of housework. She submits

that her testimony demonstrated that her daily activities are consistent with an

inability to lift 50 pounds occasionally and 25 pounds frequently, as would be

required to do her past work.2 Thus, she contends that the case should be reversed

and remanded for vocational expert testimony regarding the impact of her

limitations on her past relevant work.

2
The parties appear to agree that her prior position as a dry kiln/kettle operator fits the job
description of a dry kiln operator/helper as contained in the U.S. Department of Labor Dictionary
of Occupational Titles, which involves “an exertional level of medium.”

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 “A claimant’s subjective complaints of pain cannot in and of themselves

serve as conclusive evidence of disability. The record must document by medically

acceptable clinical or laboratory diagnostic techniques the existence of a medical

impairment which could reasonably be expected to produce the disabling pain.”

Chester v. Bowen, 792 F.2d 129, 132 (11th Cir. 1986). A three-part “pain

standard” is used when a claimant attempts to establish disability through her own

testimony of pain or other subjective symptoms. Brown v. Sullivan, 921 F.2d

1233, 1236 (11th Cir. 1991). Under this standard, the claimant must show:

(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 of such a severity that it can be
reasonably expected to give rise to the alleged pain.

Id. If the claimant’s subjective testimony is supported by medical evidence and

satisfies this pain standard, then her testimony may itself be sufficient to support a

finding of disability. Id. If the Commissioner “decides not to credit such

testimony, he must discredit it explicitly, and articulate explicit and adequate

reasons for doing so.” Id. (citation omitted). “Failure to articulate the reasons for

discrediting subjective pain testimony requires, as a matter of law, that the

testimony be accepted as true.” Id. Here, the Commissioner failed to articulate

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fully the reasons for discrediting Russell’s pain testimony and we, therefore, must

remand for further proceedings.

The ALJ found that Russell’s statements concerning the intensity,

persistence, and limiting effects of her alleged symptoms were generally credible.

Although he determined that her described activities of daily living demonstrated a

greater “capacity” than she alleged, he did not find that those activities

undermined her complaints of pain or other symptoms. Thus, the ALJ did not

make an explicit adverse credibility finding and was obliged to consider Russell’s

testimony as true. See Brown, 921 F.2d at 1236. Russell’s testimony established

that she left work after she began to experience pain in her right arm. She also

reported “problems” in her right shoulder, behind her neck, her left wrist, her left

knee, and both ankles and headaches. She stated during the hearing that her

shoulder, neck, wrist, and knee pain was at eight on a scale of one to ten most of

the time and at five the rest of the time

The ALJ determined that Russell had several severe impairments. Thus,

Russell had to show (1) objective medical evidence confirming the severity of the

alleged pain arising from those impairments or (2) that the objectively determined

medical impairments were of such a severity that they could be reasonably

expected to give rise to the alleged pain. See id. After reviewing the record, the

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ALJ determined that Russell’s “medically determinable impairments could

reasonably be expected to produce the alleged symptoms.” Russell thus satisfied

the pain standard because she had testimony of pain that prevented her from

performing her job as a kettle operator coupled with evidence of an underlying

medical condition that could reasonably be expected to give rise to that alleged

pain. By satisfying the pain standard, Russell established disability, see id., and an

inability to perform her past relevant work. The burden then shifted to the

Commissioner to show that she was able to perform other work through vocational

expert testimony.3 See Chester, 792 F.2d at 131-32. Here, although the ALJ made

the above findings demonstrating that Russell satisfied the pain standard, he did

not present a hypothetical question to the vocational expert4 regarding Russell’s

impairments as a result of that pain. This constitutes reversible error. See Swindle

v. Sullivan, 914 F.2d 222, 226 (11th Cir. 1990) (“Because the ALJ improperly

discounted [the claimant]’s subjective complaints of pain and dizziness, he did not

give adequate consideration to the effect the combination of her exertional and

3
Generally, the testimony of a vocational expert is not necessary to determine whether a
claimant can perform her past relevant work. Lucas v. Sullivan, 918 F.2d 1567, 1573 n.2 (11th
Cir. 1990). The testimony of a vocational expert is necessary, however, if the record is
inconclusive as to the claimant’s residual functional capacity. Chester, 792 F.2d at 131-32.
4
We note that for vocational expert testimony to constitute substantial evidence, the ALJ
must pose a hypothetical question which includes all of the claimant’s impairments. Vega v.
Comm’r of Soc. Sec., 265 F.3d 1214, 1220 (11th Cir. 2001).

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non-exertional impairments has on her ability to work . . . If [the claimant’s]

non-exertional impairments significantly limit basic work activities, the ALJ

should . . . take evidence from a vocational expert to determine whether there

exists in the national economy a significant number of jobs for someone with [her]

limitations.”). This case, therefore, must be remanded to the ALJ for

reconsideration of Russell’s residual functional capacity. Id.

CONCLUSION

For the foregoing reasons, we VACATE, REVERSE and REMAND with

instructions that the case be remanded to the Appeals Council.

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