Lonnie C. Barnum v. Commissioner, Social Security Adminstration

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-12216
Non-Argument Calendar
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D.C. Docket No. 8:11-cv-02813-JSM-MAP
LONNIE C. BARNUM,
Plaintiff-Appellant,
versus
COMMISSIONER, SOCIAL SECURITY ADMINISTRATION,
Defendant-Appellee.
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Appeal from the United States District Court
for the Middle District of Florida
________________________
(February 10, 2014)
Before CARNES, Chief Judge, PRYOR and MARTIN, Circuit Judges.
PER CURIAM:
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Lonnie C. Barnum appeals the district court’s order affirming the
administrative law judge’s denial of his application for disability insurance benefits
under 42 U.S.C. §§ 405(g) and 1383(c). Barnum contends that the ALJ erred
because his hypothetical question to the vocational expert did not include all of the
physical limitations ascribed to Barnum by one of his physicians.
I.
Barnum applied for disability insurance benefits and supplemental security
income on the ground that he was suffering from back pain, chronic obstructive
pulmonary disease, bipolar disorder, and depression. A number of doctors
examined Barnum. One of them, Shaukat Chowdhari, M.D., concluded in March
of 2007 that Barnum needed to avoid overexertion from prolonged standing,
walking, or sitting. In July 2007, after treating Barnum, Dr. Chowdhari added that
he needed to shift at will among sitting, standing, and walking; to lie down at
undetermined, unpredictable intervals; and to be absent from work one to three
times per month. Dr. Chowdhari also noted that Barnum could occasionally twist,
stoop, crouch, and climb.
Robin Hughes, M.D., another examining physician, evaluated Barnum in
April of 2007 and concluded that Barnum could occasionally lift 20 pounds and
frequently lift less than 10; that he could sit, stand, and walk six hours in an eight-
hour day; and that he could climb, balance, kneel, crouch, crawl, and stoop
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occasionally. At least two other physicians who examined Barnum found that he
showed some tenderness and decreased range of motion in his lumbar spine but,
along with Dr. Hughes, they concluded that he had a normal gait and full range of
motion in all of his extremities. All of the doctors, including Dr. Chowdhari,
found that Barnum achieved good to excellent pain relief as a result of treatment.
The ALJ took each of those physicians’ opinions into account when
determining Barnum’s residual functional capacity, an assessment of his ability to
work in spite of his physical limitations. The ALJ gave significant weight to Dr.
Hughes’ opinion, which the ALJ noted was consistent with his own findings and
the other evidence in the record. The ALJ gave moderate weight to Dr.
Chowdhari’s March 2007 opinion because Dr. Chowdhari had given that opinion
after only one examination and had relied on Barnum’s subjective complaints
when doing so. The ALJ gave considerable weight to Dr. Chowdhari’s July 2007
opinion, on the other hand, explaining that it was consistent with “certain” aspects
of the ALJ’s own findings, like Barnum’s ability to lift, climb, stoop, and crouch,
as well as his inability to stand, walk, or sit for prolonged periods. The ALJ found,
however, that Dr. Chowdhari’s opinion that Barnum needed to lie down for
unpredictable intervals was not supported by the record as a whole. The ALJ also
did not adopt Dr. Chowdhari’s assessment that Barnum needed to be absent from
work one to three times per month.
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The end result was that the ALJ found that Barnum retained the ability to
perform light physical activities, as reflected in the following description of his
residual functional capacity by the ALJ:
He can lift 20 pounds occasionally, 10 pounds frequently. He can sit,
stand and walk for a total of 6 hours (each) of an 8-hour day, and must
have the option to alternate between sitting and standing every 30
minutes. He can occasionally climb ramps or stairs, balance, stoop,
crouch, kneel, and crawl, but never climb ladders, ropes or scaffolds.
He must avoid concentrated exposure to fumes and respiratory
irritants. He cannot work at unprotected heights or with hazardous
machinery. He would experience pain, but the pain would not
interfere with the ability to perform activities . . . .
Tr. at 462–63. The ALJ then posed a hypothetical question to the vocational
expert who testified in Barnum’s hearing, asking what types of work someone with
Barnum’s residual functional capacity and other personal attributes could do. The
vocational expert replied that such a person could perform jobs like small products
assembler, poly packer, heat sealer, and merchandise marker. Drawing on that
testimony and taking into account Barnum’s age, education, past work history, and
residual functional capacity, the ALJ found that Barnum could perform a variety of
jobs currently available in the national economy. The ALJ concluded that Barnum
was not disabled, and Barnum now appeals that decision.
II.
In social security cases, we review de novo the ALJ’s legal conclusions but
review his factual findings to determine if they are supported by substantial
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evidence. Ingram v. Comm’r of Soc. Sec., 496 F.3d 1253, 1260 (11th Cir. 2007).
Substantial evidence is defined as “such relevant evidence as a reasonable person
would accept as adequate to support a conclusion.” Miles v. Chater, 84 F.3d 1397,
1400 (11th Cir. 1996). We do not reweigh the evidence or substitute our own
judgment for that of the ALJ. Id. “If the [ALJ’s] decision is supported by
substantial evidence we must affirm, even if the proof preponderates against it.”
Id. While a treating physician’s opinion is normally entitled to substantial weight,
the ALJ can disregard that opinion if he has “good cause” for doing so. See
Phillips v. Barnhart, 357 F.3d 1232, 1240 (11th Cir. 2004). Good cause exists
when, among other things, the treating physician’s opinion is “not bolstered by the
evidence.” Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1179 (11th Cir.
2011) (quotation marks omitted).
Barnum contends that the ALJ erred in failing to include in his hypothetical
question to the vocational expert all of the physical limitations ascribed to Barnum
by Dr. Chowdhari — in particular, Barnum’s need to lie down at unpredictable
intervals during the day and his need to be absent from work one to three times per
month. While an ALJ’s hypothetical question must take into account all of a
claimant’s impairments, Wilson v. Barnhart, 284 F.3d 1219, 1227 (11th Cir. 2002),
the question need not include impairments that the ALJ has properly determined to
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be unsupported by the evidence in the record, Crawford v. Comm’r of Soc. Sec.,
363 F.3d 1155, 1161 (11th Cir. 2004).
Here the ALJ rejected Dr. Chowdhari’s opinion that Barnum needed to lie
down at unpredictable intervals and be absent from work because the ALJ found
that that opinion was not supported by the record. Substantial evidence supports
the ALJ’s finding. First, three examining physicians, including Dr. Hughes, gave
opinions that were inconsistent with Dr. Chowdhari’s conclusion that Barnum
needs to lie down at unpredictable intervals and be absent from work. And on that
issue the ALJ was entitled to give those opinions more weight than Dr.
Chowdhari’s opinion. Second, all of the doctors who examined Barnum, including
Dr. Chowdhari, concluded that he responded well, even extremely well, to
treatment, allowing him to reduce if not eliminate the pain he experienced and
perform some work activities. Third, the findings from Barnum’s medical exams
showed on the whole that he had normal strength, coordination, reflexes,
extremities, and gait. All of that evidence supports the ALJ’s finding that Barnum
does not need to lie down at unpredictable intervals or be absent from work. That
evidence also gave the ALJ good cause to reject those parts of Dr. Chowdhari’s
opinion because they were, at the least, not bolstered by the record. See Phillips,
357 F.3d at 1240; Winschel, 631 F.3d at 1179.
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Because substantial evidence supported the ALJ’s decision to reject Dr.
Chowdhari’s determination that Barnum needs to lie down, miss work, or both, the
ALJ did not err in excluding those physical limitations from the hypothetical
question posed to the vocational expert.
AFFIRMED.
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