Lauri J. Forrester v. Commissioner of Social Security

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JANUARY 10, 2012
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-10736
Non-Argument Calendar
________________________
D.C. Docket No. 6:09-cv-01655-GJK
LAURI J. FORRESTER,
Plaintiff-Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(January 10, 2012)
Before TJOFLAT, CARNES and ANDERSON, Circuit Judges.
PER CURIAM:
Lauri Forrester appeals, with the assistance of counsel, the district court’s

-- 1 of 8 --

order affirming the Social Security Administration’s (“agency’s”) denial of her
application for disability insurance benefits (“DIB”) and supplemental security
income (“SSI”), 42 U.S.C. §§ 405(g) and 1383(c)(3). First, she argues that the
administrative law judge (“ALJ”) erred by failing to adequately explain the weight
given to various medical opinions; not clearly articulating the reasons for giving
less weight to the opinion of a treating physician; and crediting the opinions of
non-treating sources over a treating one, without substantial evidence.
Additionally, she also argues that the ALJ erred by omitting express reference to
her moderate difficulties in concentration, persistence, or pace, in the hypothetical
to the vocational expert (“VE”), such that the ALJ’s reliance on the VE’s
testimony, to conclude that jobs existed in the national economy which she could
perform, was not based on substantial evidence.
I.
In a social security case, we review the agency’s legal conclusions de novo,
and its factual findings to determine whether they are supported by substantial
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 agency. Id. “If the [agency]’s decision is supported by
substantial evidence we must affirm, even if the proof preponderates against it.”
Id.
2

-- 2 of 8 --

The Social Security Regulations outline a five-step, “sequential” evaluation
process used to determine whether a claimant is disabled. See Phillips v.
Barnhart, 357 F.3d 1232, 1237–39 (11th Cir. 2004) (describing five-step process);
20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(1), (4)(i)-(v). If an ALJ finds a
claimant disabled or not disabled at any given step, the ALJ does not go on to the
next step. 20 C.F.R. § 416.920(a)(4).
Here, the ALJ found that Forrester was not engaged in substantial gainful
activity and had severe impairments, but that the impairments did not meet or
equal a listed impairment. When that happens, the ALJ must then determine, at
step four, whether the claimant has the residual functioning capacity (“RFC”) to
perform her past relevant work. 20 C.F.R. §§ 416.920(e) and (f). Where, as here,
the ALJ answers this in the negative, it proceeds to consider, at step five, whether
the claimant’s RFC allows her to perform work that exists in the national
economy. 20 C.F.R. § 416.920(g).
RFC is “an assessment, based upon all of the relevant evidence, of a
claimant’s remaining ability to do work despite [her] impairments.” Lewis v.
Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997). When determining a claimant’s
RFC, the ALJ must give the opinion of a treating physician “substantial or
considerable weight unless good cause is shown to the contrary.” Phillips, 357
F.3d at 1240 (quotation omitted). “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
3

-- 3 of 8 --

inconsistent with the doctor’s own medical records.” Winschel v. Comm’r of Soc.
Sec., 631 F.3d 1176, 1178–79 (11th Cir. 2011) (citation and quotation omitted).
We have held that an ALJ does not need to give a treating physician’s opinion
considerable weight if evidence of the claimant’s daily activities contradict the
opinion. See Phillips, 357 F.3d at 1241. The opinions of non-examining,
non-reviewing physicians, are entitled to little weight when contrary to those of an
examining physician, and, taken alone, they do not constitute substantial evidence.
See Spencer ex rel. Spencer v. Heckler, 765 F.2d 1090, 1094 (11th Cir. 1985).
However, the ALJ may reject any medical opinion, if the evidence supports a
contrary finding. Sryock v. Heckler, 764 F.2d 834, 835 (11th Cir.1985).
The ALJ must state with particularity the weight given to different medical
opinions and the reasons for doing so. Sharfarz v. Bowen, 825 F.2d 278, 279
(11th Cir. 1987). However, we have found no reversible error when the ALJ
articulated specific reasons for declining to give the treating physician’s opinion
controlling weight, and the reasons were supported by substantial evidence.
Moore v. Barnhart, 405 F.3d 1208, 1212 (11th Cir. 2005).
The ALJ did not err in any of the four respects Forrester has preserved for
review. First, the ALJ properly explained the weight given to different medical
opinions. The ALJ noted that Dr. Goss’s opinions could “not be given controlling
weight,” and that the consultative and non-examining physicians’ opinions were
“given significant weight.” See Sharfarz, 825 F.2d at 279. Second, the ALJ
clearly articulated reasons for not giving Goss’s opinion controlling weight when
4

-- 4 of 8 --

it stated that Goss’s opinion was not supported by the medical record, and the
record demonstrated that Forrester did not have residual cardiac, vascular, or
pulmonary problems that would result in the degree of limitation Goss indicated.
See Moore, 405 F.3d at 1212. The ALJ clearly articulated its reasons for giving
significant weight to the consultative and non-examining physicians’ opinions,
when it stated that their opinions were more consistent with the medical evidence.1
Third, the ALJ did not err by crediting the opinions of non-treating sources
over those of the treating physician, Dr. Goss. The ALJ must give the treating
physician’s opinion “substantial or considerable weight unless good cause is
shown to the contrary,” which happened here. See Phillips, 357 F.3d at 1240
(quotation omitted) (emphasis added). The ALJ determined that Goss’s opinion
was not bolstered by the evidence and the evidence supported a contrary finding.
See Winschel, 631 F.3d at 1178–79. As noted above, the ALJ determined that,
consistent with the record, Forrester did not have residual cardiac, vascular, or
pulmonary problems that would result in the degree of work limitations which Dr.
Goss indicated. Furthermore, the ALJ did not need to give a treating physician’s
opinion considerable weight if evidence of the claimant’s daily activities
contradicted the opinion, which occurred here, based on Forrester’s testimony and
With regard to the RFC assessment, Forrester mentions substantial evidence only once1
in her initial counseled brief, arguing that the ALJ’s reliance on non-treating state consultants
taken alone did not constitute substantial evidence, though she raises a general substantial
evidence argument in her reply brief. Consequently, Forrester abandoned a general review of the
RFC assessment for substantial evidence. See United States v. Jernigan, 341 F.3d 1273, 1283
n.8 (11th Cir. 2003) (issues must be unambiguously demarcated); Greenbriar, Ltd. v. City of
Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir. 1989) (passing reference insufficient); Davis v.
Coca-Cola Bottling Co. Consol., 516 F.3d 955, 972-73 (11th Cir. 2008) (raising an argument in a
reply brief is insufficient).
5

-- 5 of 8 --

her ability to perform various tasks at her March 2007 consultative examination.
See Phillips, 357 F.3d at 1241. Therefore, the ALJ had “good cause” to not give
Dr. Goss’s opinion considerable weight and did not err.
Finally, the ALJ did not err by relying on the opinions of the non-treating
physicians, taken alone, in a way that left its decision unsupported by substantial
evidence. The evidence supported a contrary conclusion to Dr. Goss’s opinion,
and the ALJ was not prohibited from reaching that conclusion simply because
non-treating physicians also reached it. See Sryock, 764 F.2d at 835.
Therefore, the ALJ properly explained the weight it gave to various medical
opinions, clearly articulated its reasons, and did not err by crediting the opinions
of non-treating sources over a treating one. Accordingly, we affirm in these
respects.
II.
As noted above, if the claimant cannot perform her past relevant work, the
ALJ must then determine, at step five of the sequential process, whether her RFC
allows her to perform other work that exists in the national economy. 20 C.F.R.
§ 416.920(g). At step five, the Commissioner bears the burden to show that a
significant number of jobs exist in the national economy, which the claimant can
perform. Phillips, 357 F.3d at 1239; 20 C.F.R. §§ 404.1520(a)(4)(v),
416.920(a)(4)(v). An ALJ may make this determination either by applying the
Medical Vocational Guidelines or by obtaining the testimony of a vocational
expert. Phillips, 357 F.3d at 1239–40. “In order for a vocational expert’s
6

-- 6 of 8 --

testimony to constitute substantial evidence, the ALJ must pose a hypothetical
question which comprises all of the claimant’s impairments.” Wilson v. Barnhart,
284 F.3d 1219, 1227 (11th Cir. 2002). The ALJ is not required to include findings
in the hypothetical that the ALJ has found to be unsupported. Crawford v.
Comm’r of Soc. Sec., 363 F.3d 1155, 1161 (11th Cir. 2004).
An ALJ does not generally account for a claimant’s limitations in
concentration, persistence, or pace by restricting the hypothetical question to
simple, routine tasks or unskilled work. See Winschel, 631 F.3d at 1180-81.
However, “when medical evidence demonstrates that a claimant can engage in
simple, routine tasks or unskilled work despite limitations in concentration,
persistence, or pace, . . . limiting the hypothetical to include only unskilled work
sufficiently accounts for such limitations,” if the ALJ indicates that the medical
evidence suggests that the ability to work is unaffected. See id. (emphasis added).
Additionally, hypothetical questions adequately account for a claimant’s
limitations in concentration, persistence, or pace when the questions otherwise
implicitly account for them. See id. at 1180.
Here, the ALJ’s hypothetical to the VE properly comprised, expressly or by
implication, all of Forrester’s impairments, and the VE’s answer constituted
substantial evidence that Forrester could perform work in the national economy.
Because the ALJ: (1) indicated that the medical evidence suggested Forrester’s
ability to work was unaffected by her moderate limitations in concentration,
persistence, or pace; and (2) limited the VE’s hypothetical to simple, routine, and
7

-- 7 of 8 --

unskilled work, the ALJ’s hypothetical to the VE comprised all of Forrester’s
relevant limitations. Consequently, the VE’s answer, providing examples of
various jobs she could perform, given her limitations, constituted substantial
evidence for the ALJ’s determination that Forrester could perform jobs that
existed in the national economy. The ALJ was not required to include limitations
in the hypothetical that it found unsupported by credible evidence, such as Goss’s
determination that Forrester had memory issues that would interfere with
completing tasks, or Forrester’s testimony that her limitations in concentration
were severe.
Accordingly, we affirm.
AFFIRMED.2
Forrester’s request for oral argument is denied.2
8

-- 8 of 8 --