Donna Kay Loveless v. Commissioner, Social Security Administration

Case: 16-10104 Date Filed: 02/01/2017 Page: 1 of 8

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
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No. 16-10104
Non-Argument Calendar
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D.C. Docket No. 6:14-cv-01773-LSC

DONNA KAY LOVELESS,

Plaintiff - Appellant,

versus

COMMISSIONER, SOCIAL SECURITY ADMINISTRATION,

Defendant - Appellee.

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Appeal from the United States District Court
for the Northern District of Alabama
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(February 1, 2017)

Before MARTIN, JORDAN and ANDERSON, Circuit Judges.

PER CURIAM:
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Donna K. Loveless appeals the district court’s order affirming the Social

Security Commissioner’s denial of her application for disability insurance and

supplemental security income benefits under 42 U.S.C. § 405(g). Ms. Loveless

asserts that the administrative law judge erred in determining that her allegations of

pain and symptoms were only partially credible and by assigning little weight to a

treating physician’s residual functioning capacity assessment. After careful review

of the record and the parties’ briefs, we affirm.

Because we write for the parties, we assume their familiarity with the

underlying record and recite only what is necessary to resolve this appeal.

In May of 2012, Ms. Loveless, who is over the age of fifty, filed an

application for Social Security benefits. Ms. Loveless alleged that she became

disabled in November of 2011 due to physical impairments involving her wrists,

elbows, shoulders, neck, and back.1 After her initial and reconsideration

applications were denied, Ms. Loveless requested a hearing before an ALJ which

took place in March of 2013.

Applying the five-step sequential evaluation process, see 20 C.F.R.

§ 404.1520(a)(4)(i)-(v), the ALJ found that Ms. Loveless suffered from the

1
In her initial application, Ms. Loveless also claimed a disability related to an anxiety disorder
under SSA Listing 12.06, but she appears to have abandoned that claim before the ALJ and on
appeal.
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following severe impairments: bilateral carpal tunnel syndrome, right tennis elbow,

disc protrusions with foraminal stenosis, and spinal facet arthropathy. After

considering the testimony of Ms. Loveless and a vocational expert, the medical

opinions of two treating physicians, and her medical records, the ALJ determined

that Ms. Loveless did not have an impairment or combination of impairments that

met or medically equaled a listed impairment. In reaching that decision, the ALJ

reasoned that Ms. Loveless’ allegations of disabling levels of pain were

inconsistent with the record as a whole. In pertinent part, the ALJ highlighted that

Ms. Loveless did not seek treatment until three months after her alleged onset date,

that she later received treatment and corrective surgeries that helped manage her

pain and symptoms, and that one treating physician’s physical assessment

conflicted with some of his own findings and Ms. Loveless’ other medical records.

The ALJ then considered whether Ms. Loveless could perform any past

relevant work based on her residual functioning capacity, age, and education.

Although the ALJ accepted the vocational expert’s testimony that Ms. Loveless

could no longer perform heavy, semi-skilled work as a furniture assembler, he

found jobs in the national economy that a person of her capacities could perform.

Accordingly, the ALJ found that Ms. Loveless was not disabled and issued an

unfavorable decision.

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The Appeals Council denied Ms. Loveless’ request for review of the ALJ’s

unfavorable decision, and the district court affirmed the ALJ’s decision. Ms.

Loveless now appeals.

Generally, when an ALJ denies benefits and the Appeals Council denies

review, we review the ALJ’s decision as the Commissioner’s final decision. See

Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001). We review the

Commissioner’s decision to determine if it is supported by substantial evidence,

see Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004), and

we conduct plenary review of the district court’s decision as to whether substantial

evidence supports the Commissioner’s decision. See Wilson v. Barnhart, 284 F.3d

1219, 1221 (11th Cir. 2002). “Substantial evidence is more than a scintilla and is

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

a conclusion.” Crawford, 363 F.3d at 1158. This limited review does not permit

“deciding the facts anew, making credibility determinations, or re-weighing the

evidence.” Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). Moreover,

an error is harmless if it does not affect the ALJ’s ultimate decision. See Diorio v.

Heckler, 721 F.2d 726, 728 (11th Cir. 1983).

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III

An individual claiming disability insurance and SSI benefits has the burden

of proving that she is disabled and is responsible for producing evidence to support

her claim. See Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003). A

treating physician’s opinion “must be given substantial or considerable weight

unless good cause is shown to the contrary.” Lewis v. Callahan, 125 F.3d 1436,

1440 (11th Cir. 1997) (internal quotation marks and citation omitted). “Good

cause” may be found when an opinion is not bolstered by the evidence, when the

evidence supports a contrary finding, or when a physician’s opinion is

“inconsistent with [his or her] own medical records.” Id. Moreover, it is the ALJ’s

responsibility to resolve the conflicts between the evidence and testimony

presented. See Moore, 405 F.3d at 1212 (noting that “credibility determinations

are the province of the ALJ”).

Ms. Loveless first argues that the ALJ improperly discounted her testimony

about her symptoms and allegations of pain. The ALJ considered Ms. Loveless’

testimony, but gave several reasons for concluding that her testimony about the

extent of her disabling condition was not entirely credible. For example, Ms.

Loveless alleged that her disability began in November of 2011, but she did not

seek treatment (or present evidence indicating that she attempted to seek treatment)

until three months after her alleged onset date. Ms. Loveless also claimed to have

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difficulty sleeping at night and stated that she “stays tired all the time,” but her

complaints of disabling fatigue are not adequately reflected in her objective

medical records. See ALJ Decision at 7. Similarly, Ms. Loveless claimed that one

of her doctors had recommended an additional surgery and that she had visited the

emergency room for treatment, but neither allegation is reflected in the record.

In addition to a lack of medical evidence to support part of her testimony at

the hearing, the ALJ noted that Ms. Loveless alleged difficulty lifting, sitting or

standing for longer than fifteen to twenty minutes at a time, walking more than

fifty feet, going to the grocery store without assistance, and completing household

chores. But in a separate function report that she had previously completed,

Ms. Loveless claimed that she can do “light dusting, load [a] washer, and load [a]

dishwasher,” and that her conditions “do not affect her ability [to] squat, bend,

stand, reach, walk, sit, kneel, or climb stairs.” See ALJ Decision at 7.

Furthermore, Ms. Loveless had not lost interest in or the ability to engage in daily

activities such as going outside, riding in a car, shopping, watching television, and

caring for her grandchildren.

Ms. Loveless also argues that the ALJ erred in assigning little weight to a

functional capacity assessment completed by one of her treating physicians—

Dr. Long. As a preliminary matter, Ms. Loveless is correct that the ALJ erred in

determining that Dr. Long “d[id] not have a treating relationship” with her. See id.

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at 8. But that error is harmless because the ALJ did not issue his unfavorable

decision on that basis and gave additional reasons establishing good cause to

discount Dr. Long’s assessment. See Diorio, 721 F.2d at 728 (finding that ALJ’s

“erroneous statements of fact” were harmless because they did not affect the

ultimate outcome of the case).

The ALJ concluded that Dr. Long’s assessment—that Ms. Loveless was

limited to standing for two hours, walking for one hour, and sitting for four hours

during an eight-hour workday, and that she “would miss sixty full or partial days of

work during a year”—conflicted with his previous findings and other objective

medical evidence. See id. at 8. Indeed, on previous visits, Dr. Long reported that

Ms. Loveless denied having problems with significant fatigue and appeared “to be

in no acute distress [and that] she was neurologically intact with normal motor

strength in her upper and lower extremities with no swelling or joint

abnormalities.” See id. The ALJ also observed that Dr. Long had prepared this

assessment after a five-month period during which Ms. Loveless had been treated

exclusively by an orthopedic specialist for surgeries and pain management that had

helped to effectively reduce her pain. See id. (noting that Ms. Loveless’

orthopedist reported that she “was doing well and [that] her range of motion and

handgrip strength had improved”). In sum, the ALJ articulated specific reasons for

choosing to discount this particular physical assessment prepared by Dr. Long and

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he was in the best position to weigh the conflicting evidence here. See Moore, 405

F.3d at 1212.

Substantial evidence also supported the ALJ’s finding that Ms. Loveless

reported levels of disabling pain that conflicted with other evidence in the record,

as shown by her ability to complete simple household chores and by her continuing

interest in daily activities. The ALJ properly considered the routine nature and

effectiveness of Ms. Loveless’ treatment, the relative infrequency of her visits to

both of her treating physicians, and the absence of evidence to confirm some of her

testimony and her subjective allegations of pain and certain symptoms. Finally,

the ALJ had good cause to conclude that Dr. Long’s residual functioning capacity

assessment conflicted with his other medical findings and Ms. Loveless’ objective

medical record as a whole.

We affirm the district court’s order upholding the ALJ’s unfavorable

decision because substantial evidence supported the ALJ’s finding that Ms.

Loveless was not disabled.

AFFIRMED.