Debbie D. Kelly v. Commissioner of Social Security

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
OCTOBER 21, 2010
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 10-11533
Non-Argument Calendar
________________________
D.C. Docket No. 6:08-cv-01751-JA-DAB
DEBBIE D. KELLY,
Plaintiff-Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee,
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(October 21, 2010)
Before TJOFLAT, HULL and KRAVITCH, Circuit Judges.
PER CURIAM:
Debbie D. Kelly appeals the district court’s order affirming the Social

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Security Commissioner’s denial of her application for disability benefits and
supplemental security benefits. After review, we affirm.
I. BACKGROUND
A. ALJ’s Decision
In December 2005, Kelly applied for disability and supplemental security
benefits. Kelly alleged an inability to work as of December 31, 2003 due to high
blood pressure, anemia, morbid obesity and gastroesophageal reflux disease
(GERD”), which gave her chest pain and shortness of breath.
Following a hearing, an administrative law judge (“ALJ”) concluded that
Kelly was not disabled and denied Kelly’s application. The ALJ determined, inter
alia, that: (1) Kelly had a severe combination of impairments, namely atypical
chest pain and a history of hypertension, that prevented her from performing her
past relevant work, (2) but that she retained the residual functional capacity to
perform a full range of sedentary work.
In so doing, the ALJ gave little weight to the opinion of one of Kelly’s
treating physicians, Dr. Michael Ham-Ying, who had written a January 9, 2006
letter about Kelly. Dr. Ham-Ying’s letter stated that: (1) it was being generated in1
The ALJ also partially discredited Kelly’s testimony as to the intensity, persistence and1
effects of her impairments. We do not discuss this finding because Kelly does not challenge it on
appeal.
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response to Kelly’s request “to have [a] statement outlining her ability to work”;
(2) he had examined Kelly on that date; (3) Kelly’s medical conditions have
prevented her from working since October 2005; and (4) she was still unable to
return to work. The letter indicated the duration as twelve months and listed
Kelly’s diagnoses as “Abnormal EKG, Hypertension, Morbid Obesity, Anemia,
and GERD.”2
With regard to Dr. Ham-Ying’s letter the ALJ stated:
The report was generated in response to the claimant’s request to
outline her ability to work.
The possibility always exists that a doctor may express an opinion
in an effort to assist a patient with whom he or she sympathizes for one
reason or another. Another reality which should be mentioned is that
patients can be quite insistent and demanding in seeking supportive
notes or reports from their physicians, who might provide such a note in
order to satisfy their patient’s requests and void unnecessary
doctor/patient tension. While it is difficult to confirm the presence of
such motives, they are more likely in situations where the opinion in
question departs substantially from the rest of the evidence of record, as
in the current case. Additionally, the doctor’s opinion is without
substantial support from the evidence of record, which obviously
renders it less persuasive.
In contrast, the ALJ gave considerable weight to the opinion of Dr. Alex
Perdomo, a consulting physician who examined Kelly in March 2006. After
examining Kelly and reviewing her medical history, Dr. Perdomo’s report stated,
This January 9, 2006 letter was the only evidence submitted to the ALJ from Dr. Ham-2
Ying.
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inter alia, that: (1) although Kelly reported a history of chest pain, an EKG
performed within the last month revealed no abnormalities and that a coronary3
catheterization performed in 2002 reported as normal; (2) Kelly’s chief complaint
appeared to be bilateral knee pain from advanced osteoarthritis for which she
underwent arthroscopic surgery in 2002; (3) Perdomo observed tenderness and
pain during the examination of Kelly’s knees, with the pain more severe in her left
knee; (4) Kelly was unable to squat due to complaints of knee pain; (5) Kelly had
full range of motion of her upper and lower extremities, but “painful bilateral knee
flexion seen”; (6) an x-ray of Kelly’s left knee showed a “slight narrowing of the
interarticular space with medial and lateral osteophytes consistent with mild
osteoarthritis”; (7) Perdomo’s impressions were that Kelly suffered from
osteoarthritis of the knees, allergies, obesity and atypical chest pains and, by
history, chronic bronchitis, hypertension and GERD; and (8) Kelly could stand
and walk for six hours of an eight hour workday with normal breaks, could sit for
eight hours of an eight hour workday with normal breaks, could frequently lift and
carry, but should limit lifting to no more than 30 pounds to minimize further knee
An April 2006 report from the Orlando Heart Center indicates that Dr. Ham-Ying3
referred Kelly for consultation because she was experiencing chest pain. The report indicated
that Dr. Ham-Ying had performed an EKG on February 28, 2006, which was normal, concluded
that Kelly’s chest pain was “most likely muculoskeletal in origin,” and stated that Kelly “may
follow[-up] with Dr. Ham[-]Ying to pursue sleep study.”
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injury and should avoid squatting, kneeling and repetitive stair climbing. In
according Dr. Perdomo’s opinion considerable weight, the ALJ noted “the lack of
significant findings” by Dr. Perdomo during his physical examination.
B. Appeals Council’s Decision
Kelly requested review by the Appeals Council. Kelly argued, inter alia,
that the ALJ applied the wrong legal standard in according weight to the opinions
of Drs. Ham-Ying and Perdomo, failed to evaluate the effect of Kelly’s obesity on
her ability to work, and failed to properly consider and make findings regarding
the side effects of her medications. The Appeals Council granted Kelly’s request,
noting that the ALJ had not adequately considered Kelly’s obesity, and gave Kelly
time to submit additional evidence.
Kelly submitted a questionnaire completed by Dr. Ahmed Masood, a
pulmonologist who treated Kelly for shortness of breath and sleep apnea. Dr.
Masood indicated that Kelly (1) was unable to sit upright in a chair for four or
more hours in an eight-hour workday five days a week due to fatigue; (2) needed
to lie down or recline most of the time due to fatigue; (3) suffered from extreme
fatigue; and (4) was unable to perform any job eight hours per day five days per
week on a reliable and sustained basis. Kelly also submitted pharmacy
information sheets and excerpts from the 2008 Physicians Desk Reference for
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Premarin, Lisinopril, Nexium, Zolpidem Tartrate and Zyrtec, which indicated,
inter alia, that side effects for these medications included fatigue and somnolence.4
The Appeals Council issued an unfavorable decision adopting the ALJ’s
evidentiary facts and concluding that Kelly had the residual functional capacity to
perform a full range of sedentary work. The Appeals Council determined that, in
addition to atypical chest pain and history of hypertension identified by the ALJ,
Kelly’s severe impairments included obesity and degenerative joint disease. After
reviewing the medical evidence related to Kelly’s obesity and degenerative joint
disease in her left knee, the Appeals Council concluded that, even with these
additional impairments, Kelly was capable of a full range of sedentary work.
The Appeals Council also considered Kelly’s claim that the ALJ did not
properly consider the side effects of her medication. The Appeals Council
acknowledged that Kelly testified at the hearing that her medications made her
sleepy and required her to lie in bed most of the time. The Appeals Council noted,
however, that no physician had found that side effects of Kelly’s medication
required her to lie down or sleep for prolonged periods. Thus, the Appeals
Council concluded that the medical evidence did not support Kelly’s “allegations
Kelly contends that she also submitted letters from Dr. Ham-Ying and another treating4
physician, Dr. Billy Thompson, but these documents are not in the record.
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that side effects of medication limits her to such a degree.”
As for Kelly’s new evidence, the Appeals Council found that the pharmacy
information sheets indicated only the possible side effects, rather than actual side
effects. The Appeals Council emphasized that a March 2008 medical report from
Dr. Masood “rule[d] out a number of these side effects as current problems.”
According to the March 2008 report cited by the Appeals Council, Dr. Masood
saw Kelly for a follow-up evaluation for “sleep disorders/disturbance.” Dr.
Masood noted that Kelly had poor sleep hygiene, nocturnal awakenings with
trouble falling asleep and going back to sleep and daytime sleepiness. Dr. Masood
discovered that Kelly had been given the wrong size mask for her BiPAP machine
used to treat her sleep apnea and ordered the correct size mask. Dr. Masood also
recommended Kelly continue her bronchodilator regimen, lose weight, not drive
while sleepy, sleep on her side, avoid alcohol at bedtime and elevate the end of her
bed. Although Dr. Masood listed all of Kelly’s medications, he did not indicate
that any of them caused or contributed to her sleepiness.
The Appeals Council concluded that the entire record did not support a
finding that “the side effects of medication further reduce[d] [Kelly’s] residual
functional capacity from that found by the [ALJ].” The Appeals Council
otherwise agreed with the ALJ’s findings and determined that Kelly was not
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disabled.
Kelly appealed to the district court, which adopted the magistrate judge’s
report and recommendation, and affirmed the Commissioner’s decision. Kelly
filed this appeal.
II. DISCUSSION
A. Legal Standard for Evaluating Doctors’ Opinions
On appeal, Kelly argues that the ALJ did not apply the correct legal
standards in giving little weight to the opinion of Dr. Ham-Ying, her treating
physician, and giving considerable weight to the opinion of Dr. Perdomo, a one-
time consulting physician.5
In evaluating medical opinions, the ALJ considers many factors, including
the examining relationship, the treatment relationship, whether the opinion is
amply supported, whether the opinion is consistent with the record and the
doctor’s specialization. 20 C.F.R. §§ 404.1527(d), 416.927(d). Generally, the
opinions of examining physicians are given more weight that non-examining
physicians and the opinions of treating physicians are given more weight than
We review de novo the legal principles underlying the Commissioner’s final decision,5
but review “the resulting decision only to determine whether it is supported by substantial
evidence.” Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). “Substantial evidence is
less than a preponderance, but rather such relevant evidence as a reasonable person would accept
as adequate to support a conclusion.” Id.
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non-treating physicians. See id. §§ 404.1527(d)(1)-(2), 416.927(d)(1)-(2). A
doctor’s opinion on a dispositive issue reserved for the Commissioner, such as
whether the claimant is “disabled” or “unable to work,” is not considered a
medical opinion and is not given any special significance, even if offered by a
treating source, but will be taken into consideration. Id. §§ 404.1527(e),
416.927(e).
Further, a treating physician’s opinion “must be given substantial or
considerable weight unless good cause is shown to the contrary.” Crawford v.
Comm’r of Soc. Sec., 363 F.3d 1155, 1159 (11th Cir. 2004) (quotation marks
omitted); see also 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2). Good cause exists
“when the: (1) treating physician’s opinion was not bolstered by the evidence; (2)
evidence supported a contrary finding; or (3) treating physician’s opinion was
conclusory or inconsistent with the doctor’s own medical records.” Phillips v.
Barnhart, 357 F.3d 1232, 1240-41 (11th Cir. 2004). “The ALJ must clearly
articulate the reasons for giving less weight to the opinion of a treating physician,
and the failure to do so is reversible error.” Lewis v. Callahan, 125 F.3d 1436,
1440 (11th Cir. 1997); see also 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2)
(requiring the agency to “give good reasons” for not giving weight to a treating
physician’s opinion).
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B. ALJ’s Evaluations
Here, the ALJ applied the proper legal standards in assigning more weight
to Dr. Perdomo’s opinion than Dr. Ham-Ying’s opinion. Contrary to Kelly’s
claims, the ALJ was not required to give Dr. Ham-Ying’s opinion substantial or
controlling weight because he was Kelly’s treating physician. Given that Dr.
Ham-Ying’s letter merely listed Kelly’s impairments and stated that she was
unable to return to work, it arguably offered only a non-medical opinion on a
matter reserved for the ALJ. As such, the ALJ was permitted to consider Dr. Ham-
Ying’s letter, but not to give it any special significance.
Even assuming Dr. Ham-Ying’s letter offered a medical opinion, the ALJ
still had the discretion to give less weight to Dr. Ham-Ying’s opinion if the ALJ
found good cause and clearly explained his reasons for doing so. This the ALJ did
when he explained that Dr. Ham-Ying’s opinion “depart[ed] substantially from the
rest of the evidence of record” and was “without support from the other evidence
of record.” Notably, Kelly does not argue that this reason for discounting Dr.
Ham-Ying’s opinion is not supported by substantial evidence.6
We find no merit to Kelly’s argument that the ALJ discounted Dr. Ham-Ying’s opinion6
because the ALJ concluded that Dr. Ham-Ying was being sympathetic to a demanding patient to
avoid doctor-patient tension. Although the ALJ observed that pressure from or sympathy for a
patient could lead a doctor to provide an opinion on a patient’s ability to work, the ALJ
acknowledged that it was “difficult to confirm the presence of such motives,” and ultimately
concluded that Dr. Ham-Ying’s opinion was less persuasive because it lacked evidentiary support
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While Dr. Perdomo was not one of Kelly’s treating physicians, he was an
examining physician and his report (in contrast to Dr. Ham-Ying’s conclusory
letter) provided detailed medical findings from his physical examination of Kelly.
Although an ALJ generally gives a treating physician’s opinion more weight than
an examining physician’s opinion, the ALJ is not required to do so, especially
where, as here, the ALJ discounted the treating physician’s opinion for good
cause. See Sharfaz v. Bowen, 825 F.2d 278, 280 (11th Cir. 1987) (stating that the
ALJ “may reject any medical opinion if the evidence supports a contrary finding”).
In giving more weight to Dr. Perdomo’s opinion, the ALJ stressed that it was
supported by the lack of any significant medical findings during Dr. Perdomo’s
physical examination. Again, Kelly does not argue that this reason was not
supported by substantial evidence.
Because the ALJ articulated good cause for discounting the treating
physician’s opinion, the ALJ did not err in giving more weight to the consulting,
examining physician’s opinion. We conclude the ALJ applied the proper legal
standards in allocating weight to these two doctors’ opinions.
C. New Evidence of Medication Side Effects
Kelly contends that, after granting her request for review, the Appeals
and in fact was inconsistent with other evidence.
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Council refused to consider, and improperly rejected, the pharmacy information
sheets and excerpts of the 2008 Physicians Desk Reference she submitted as new
evidence.7
If, in requesting review, the claimant submits new and material evidence,
the Appeals Council shall consider it if it “relates to the period on or before” the
ALJ’s decision. 20 C.F.R. § 404.970(b). The Appeals Council considers the
entire record (i.e., the old and the new evidence) and “will then review the case if
it finds that the [ALJ’s] action, findings, or conclusion is contrary to the weight of
the evidence currently of record.” Id. When the Appeals Council grants review,
the Appeals Council’s decision is reviewable as the final decision of the
Commissioner of the Social Security Administration. Sims v. Apfel, 530 U.S.
103, 106-07, 120 S. Ct. 2080, 2083 (2000). When the Appeals Council does not8
adequately evaluate new evidence, but instead perfunctorily adheres to the ALJ’s
decision, the Commissioner’s decision is not supported by substantial evidence
On appeal, Kelly does not argue that the Appeals Council failed to consider or7
improperly rejected Dr. Masood’s July 2008 questionnaire. N. Am. Med. Corp. v. Axiom
Worldwide, Inc., 522 F.3d 1211, 1217 n.4 (11th Cir. 2008) (noting that “issues not raised on
appeal are abandoned”).
Because the Appeals Council granted review and modified the ALJ’s decision regarding8
the side effects of Kelly’s medications, we review only the Appeals Council’s decision on this
issue and do not address Kelly’s arguments as to the ALJ’s evaluation of her side effects.
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and requires remand. Epps v. Harris, 624 F.2d 1267, 1273 (5th Cir. 1980).9
The record belies Kelly’s claim that the Appeals Council refused to consider
her new evidence of medication side effects. The Appeals Council explicitly
addressed the pharmacy information sheets and Physician’s Desk Reference
excerpts, explaining that this evidence discussed possible side effects from Kelly’s
medications, but did not show that Kelly actually experienced those side effects.
The Appeals Council also pointed to Dr. Masood’s March 3, 2008 medical report,
which indicated that Kelly’s sleep apnea caused her sleep problems and Dr.
Masood did not suggest that her medications played a role. After considering this
new evidence along with the rest of the record, the Appeals Council concluded
that the record in its entirety did not support Kelly’s claim that the side effects of
her medication “further reduced [her] residual functional capacity.”
Furthermore, the Appeals Council’s finding that any medication side effects
did not reduce Kelly’s residual functional capacity was supported by substantial
evidence. As the Appeals Council noted, none of the medical evidence suggested
that Kelly’s medications caused her to take prolonged, daily naps. Kelly never
reported, nor complained of, such a side effect to any physician or treating source.
Decisions of the former Fifth Circuit on or before September 30, 1981 are binding9
precedent in the Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.
1981) (en banc).
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Although Kelly reported to doctors that she had problems sleeping at night and
experienced drowsiness and fatigue during the day, she did not report sleeping for
half of the day, as she testified at the hearing. Further, the medical records
suggested that Kelly’s daytime drowsiness and fatigue were attributable to Kelly’s
sleep apnea and poor sleep hygiene, rather than her medications. Indeed, Dr.10
Masood’s reports indicate that in 2007 Kelly’s sleep-related symptoms improved
after she began using a BiPAP machine and bronchodilator. Finally, no doctor
placed limitations on Kelly’s activities due to medication side effects or instructed
her that medication side effects might restrict her activities.
III. CONCLUSION
For these reasons, we conclude the Commissioner’s decision denying Kelly
disability and supplemental security benefits is supported by substantial evidence.
AFFIRMED.
Dr. Masood’s July 2008 questionnaire also indicates that Kelly’s fatigue is due to her10
“sleep apnea/hypersomnia,” and not due to her medications.
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