Gregory Walker v. Social Security Administration, Commissioner

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12732
Non-Argument Calendar
____________________
GREGORY WALKER,
Plaintiff-Appellant,
versus
SOCIAL SECURITY ADMINISTRATION,
COMMISSIONER,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Alabama
D.C. Docket No. 4:20-cv-00555-ACA
____________________
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2 Opinion of the Court 21-12732
Before J ORDAN, NEWSOM , and BLACK , Circuit Judges.
PER CURIAM:
Gregory Walker appeals the district court’s affirmance of the
Commissioner’s denial of his claim for a period of disability and
disability insurance benefits (DIB), which he filed in March 2018.
Walker asserts four claims on appeal, which we address in turn.
After review,1 we affirm.
I. MEDICATION SIDE EFFECTS
Walker contends the Administrative Law Judge (ALJ) failed
to consider or discuss how his medications affected his ability to
work, citing
Cowart v. Schweiker, 662 F.2d 731, 737 (11th Cir.
1981). He asserts his testimony included that his medications made
him sleepy and drowsy and caused him frequent urination and con-
stipation, and that the medical records establish he used “heavy”
pain medications.
To establish a disability based on testimony of pain and
other symptoms, the claimant must show: “(1) evidence of an un-
derlying medical condition; and (2) either (a) objective medical
1 We review a social security disability case to determine whether the Com-
missioner’s decision is supported by substantial evidence, and we review
de
novo whether the correct legal standards were applied.
Moore v. Barnhart,
405 F.3d 1208, 1211 (11th Cir. 2005). We will not decide the facts anew, make
credibility determinations, or reweigh the evidence.
Winschel v. Comm’r of
Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011).
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21-12732 Opinion of the Court 3
evidence confirming the severity of the alleged [symptoms]; or
(b) that the objectively determined medical condition can reasona-
bly be expected to give rise to the claimed [symptoms].”
Wilson v.
Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002). The ALJ must artic-
ulate adequate reasoning for discrediting subjective testimony, and
as a matter of law, failure to do so requires the testimony be ac-
cepted as true.
Id.
If the objective medical evidence establishes an impairment
that could be reasonably expected to produce the alleged symp-
toms, the ALJ must evaluate the intensity and persistence of the
claimant’s alleged symptoms. 20 C.F.R. § 404.1529(c)(1). In addi-
tion to “all of the evidence,” ALJs should consider the following
factors when evaluating “the intensity, persistence, and limiting ef-
fects of” a claimant’s symptoms: (1) daily activities; (2) “location,
duration, frequency, and intensity of” symptoms and pain; (3) pre-
cipitating and aggravating factors; (4) “type, dosage, effectiveness,
and side effects of” medications; (5) treatment other than medica-
tion; (6) any other measures used to relieve symptoms; and (7) any
other factors concerning his functional limitations.
Id.
§ 404.1529(c)(1)-(4).
In
Cowart, we held, as relevant here, that the ALJ failed to
discharge his duty to develop the facts when he “made little or no
effort to elicit evidence favorable to” the claimant. 662 F.2d at 735.
Among other failures, the ALJ did not elicit testimony or make any
findings on the effect of the claimant’s medications on her ability
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4 Opinion of the Court 21-12732
to work, even though she had testified to taking various medica-
tions and experiencing side effects.
Id. at 737.
Walker’s reliance on
Cowart is misplaced because, here, the
ALJ explicitly questioned Walker about his medications, elicited
testimony regarding their side effects, and made a finding on how
they affected his ability to work.
See id. Contrary to Walker’s ar-
gument, the ALJ’s decision sufficiently addressed the impact of side
effects because the ALJ reduced Walker’s residual functional capac-
ity (RFC), which directly affects his ability to work, to account for
reasonable side effects.
See 20 C.F.R. §§ 404.1520(a)(4)(iv)-(v)(ref-
erencing a claimant’s RFC in steps four and five of the five-step se-
quential evaluation process), 416.967 (providing the claimant’s
RFC is used to determine his capability of performing various des-
ignated levels of work (sedentary, light, medium, heavy, or very
heavy)). Further, the ALJ articulated sufficient reasoning for par-
tially discrediting Walker’s testimony when he determined the rec-
ord lacked the prolonged use of medications that produced
Walker’s alleged debilitating side effects.
See Wilson, 284 F.3d at
1225. To the extent the ALJ did not highlight specific side effects
of pain medications, he did not need to do so, and the ALJ’s deci-
sion is not a broad rejection of Walker’s claims given that he ad-
dressed Walker’s allegations of side effects, pain, and daily living
separately, developed a record, and cited numerous pieces of med-
ical evidence to support his conclusions.
See Dyer v. Barnhart, 395
F.3d 1206, 1211 (11th Cir. 2005) (stating while the ALJ need not dis-
cuss every piece of evidence, his decision cannot be a broad
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21-12732 Opinion of the Court 5
rejection that precludes a reviewing court from concluding he con-
sidered the claimant’s conditions as a whole). Accordingly, we af-
firm2 as to this issue.
II. DR. FAVA’S OPINION
Second, Walker contends the ALJ, without good cause and
without stating some measure of clarity, rejected the opinion of
Anthony Fava, M.D., the consultative physician, whose opinion,
he argues, is well-supported by the record.
The ALJ considers medical opinions from acceptable medi-
cal sources, which include licensed physicians and licensed psy-
chologists. 20 C.F.R. §§ 404.1502(a), 404.1513(a)(2). For claims
filed on or after March 27, 2017, new Social Security Administra-
tion’s (SSA) regulations apply.
Id. § 404.1520c. Under the new reg-
ulatory scheme, the ALJ must articulate how persuasive he finds
each medical opinion, but he no longer must assign more weight
to a treating source’s medical opinion or explain why good cause
exists to disregard it.
Compare id. § 404.1520c(a)-(b)
with id.
§ 404.1527(c)(2). Rather, ALJs should focus on the opinion’s per-
suasiveness in light of five factors: (1) supportability; (2) con-
sistency; (3) relationship with the claimant; (4) specialization; and
2 Because Walker does not assert the ALJ’s evaluation of his testimony is un-
supported by substantial evidence, we do not address the Commissioner’s
contentions on appeal regarding whether the treatment record supports
Walker’s allegation of pain and limitations.
See Sapuppo v. Allstate Floridian
Ins. Co., 739 F.3d 678, 680-81 (11th Cir. 2014) (stating issues not briefed on
appeal by a litigant are deemed abandoned).
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6 Opinion of the Court 21-12732
(5) “other factors that tend to support or contradict” the opinion.
Id. § 404.1520c(c)(1)-(5).
Supportability and consistency are the most important fac-
tors and must be explained, but the ALJ is not required to explain
the other factors. 20 C.F.R. § 404.1520c(b)(2). “The more relevant
the objective medical evidence and supporting explanations pre-
sented by a medical source are to support his or her medical opin-
ion(s) or prior administrative medical finding(s), the more persua-
sive the medical opinions or prior administrative medical finding(s)
will be.”
Id. § 404.1520c(c)(1). Further, “[t]he more consistent a
medical opinion(s) or prior administrative medical finding(s) is
with the evidence from other medical sources and nonmedical
sources in the claim, the more persuasive the medical opinion(s) or
prior administrative medical finding(s) will be.”
Id.
§ 404.1520c(c)(2). Also under the new regulations, evidence of de-
cisions by other governmental agencies “is inherently neither val-
uable nor persuasive,” and the ALJ “will not provide any analysis
about how [he] considered such evidence in [his] determination or
decision.”
Id. § 404.1520b(c)(1).
As an initial matter, Walker filed for DIB in 2018, so the new
regulations apply to his claim.
See id. § 404.1520c. For this reason,
Walker’s reliance on an unpublished case from 2015, which applied
the prior version of the regulations, is inapplicable because the ALJ
was not required under the new regulations to provide more
weight to Dr. Fava’s opinion absent good cause, or state with clar-
ity his reasons for not doing so.
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21-12732 Opinion of the Court 7
While Walker’s arguments indirectly concern the supporta-
bility and consistency of Dr. Fava’s opinion, Walker fails to chal-
lenge the ALJ’s specific conclusions that (1) Dr. Fava’s opinion is
inconsistent with his own examination findings, (2) the severity of
pain that Walker alleged to Dr. Fava was inconsistent with other
evidence, and (3) Dr. Fava was a one-time examining physician
who was not privy to the record. Accordingly, the ALJ’s decision
on this issue is due to be affirmed.
See Sapuppo v. Allstate Floridian
Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014) (stating a court’s “judg-
ment is due to be affirmed” when an appellant fails to challenge
one of the grounds on which the court made its decision).
In any event, the ALJ’s conclusions are supported by sub-
stantial evidence because, as the ALJ noted, Walker mostly com-
plained of a pain level below ten, and about a month after com-
plaining to Dr. Fava of ten-out-of-ten pain, Dr. Lawler noted that
Walker exhibited no pain.
See Lewis v. Callahan, 125 F.3d 1436,
1440 (11th Cir. 1997) (explaining substantial evidence is any rele-
vant evidence, greater than a scintilla, that a reasonable person
would accept as adequate to support a conclusion). Substantial ev-
idence likewise supports the ALJ’s conclusion that Dr. Fava mostly
relied on Walker’s subjective complaints because Dr. Fava’s state-
ment that Walker’s pain rendered him unable to work was made
within the context of Walker’s complaints to Dr. Fava, whereas his
objective examination findings showed Walker’s ability to get off
and on the examination table without difficulty, ambulate nor-
mally with knee braces, squat, arise, and heel-to-toe walk. Dr.
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8 Opinion of the Court 21-12732
Fava’s objective findings also indicated Walker retained strength in
his major muscles, grip in his fingers, and a non-extreme decrease
in his extremities’ ranges of motion, except for his left shoulder
which had recently undergone surgery. Further, Walker’s disabil-
ity rating from the U.S. Department of Veterans Affairs is not in-
herently valuable evidence, and the ALJ properly declined to ad-
dress it. 20 C.F.R. § 404.1520b(c)(1). Thus, we affirm as to this is-
sue.
III. VOCATIONAL EXPERT
Walker asserts the Vocational Expert’s (VE) testimony is not
substantial evidence of the ALJ’s disability determination because
the VE’s testimony was prompted by a hypothetical question that
lacked a full statement of his limitations, such as his pain level, the
effects of his pain medications, or the need to keep his legs raised.
“In order for a [VE’s] testimony to constitute substantial evidence,
the ALJ must pose a hypothetical question which comprises all of
the claimant’s impairments.”
Wilson, 284 F.3d at 1227. However,
the ALJ is “not required to include findings in the hypothetical that
the ALJ had properly rejected as unsupported.”
Crawford v.
Comm’r of Soc. Sec., 363 F.3d 1155, 1161 (11th Cir. 2004). In other
words, the hypothetical question need not list every symptom but
“must provide the VE with a complete picture of the claimant’s
RFC.”
Samuels v. Acting Comm’r of Soc. Sec., 959 F.3d 1042, 1047
(11th Cir. 2020).
The RFC is an assessment of a claimant’s ability to do work
despite his impairments.
Lewis, 125 F.3d at 1440. The SSA has
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21-12732 Opinion of the Court 9
explained that an RFC is the measure of an individual’s “maximum
remaining ability to do sustained work activities in an ordinary
work setting on a regular and continuing basis,”
i.e. for eight hours
per day and five days per week or an equivalent schedule, and that
“the RFC assessment must include a discussion of the individual’s
abilities on that basis.” SSR 96-8p, 61 Fed. Reg. 34474-01 at 34475.
At step four of the sequential analysis, the ALJ must determine a
claimant’s RFC by considering all relevant medical and other evi-
dence.
Phillips v. Barnhart, 357 F.3d 1232, 1238 (11th Cir. 2004).
The ALJ makes this determination by considering the claimant’s
ability to perform exertional tasks as well as the claimant’s mental
abilities. 20 C.F.R. § 416.945(b)-(c). The ALJ may consider daily
activities at step four of the sequential evaluation process.
Macia
v. Bowen, 829 F.2d 1009, 1012 (11th Cir. 1987).
Walker’s argument is meritless because, in posing a hypo-
thetical question to the VE, the ALJ did not need to include the
aspects of Walker’s testimony that he rejected as unsupported by
the evidence, or every symptom. As discussed above, the ALJ ac-
counted for reasonable side effects in finding Walker’s RFC. The
ALJ rejected Walker’s testimony regarding the full extent of his
pain and functional limitations, including the need to keep his legs
raised, by reasoning that no diagnostic study or physical finding in
his medical history supported his allegations, citing specific pieces
of evidence in support. Additionally, the ALJ could consider
Walker’s reported daily activities when determining his RFC and
concluding that his allegations were not objectively verifiable.
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10 Opinion of the Court 21-12732
Further, the VE’s testimony was prompted by a hypothetical ques-
tion that includes Walker’s RFC, and importantly, Walker has
abandoned any challenge to the reasoning underlying the ALJ’s
RFC finding and whether substantial evidence supports that rea-
soning. Accordingly, we affirm as to this issue.
IV. APPEALS COUNCIL EVIDENCE
Walker asserts he submitted new evidence to the Appeals
Council (AC) from his orthopedic physician, but he concedes the
AC considered this evidence. The AC commits legal error when it
refuses to consider new, material, and chronologically relevant ev-
idence, and we review the issue
de novo.
Washington v. Soc. Sec.
Admin.,
Comm’r, 806 F.3d 1317, 1320-23 (11th Cir. 2015);
see also
Pupo v. Comm’r, Soc. Sec. Admin., 17 F.4th 1054, 1063 (11th
Cir. 2021) (holding the AC “erred in refusing to consider Pupo’s
new, material, and chronologically relevant evidence”); 20 C.F.R.
§ 404.970(a)(5) (instructing the AC to review a case if it “receives
additional evidence that is new, material, and relates to the period
on or before the date of the hearing decision, and there is a reason-
able probability that the additional evidence would change the out-
come of the decision”).
In denying a request for review, the AC is not required to
“give a detailed rationale for why each piece of new evidence sub-
mitted to it does not change the ALJ’s decision.”
Mitchell v.
Comm’r, Soc. Sec. Admin., 771 F.3d 780, 784 (11th Cir. 2014). In
Mitchell, we concluded the AC adequately evaluated new evidence
submitted where it accepted the evidence but denied review
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21-12732 Opinion of the Court 11
because the additional evidence failed to establish error in the ALJ’s
decision.
Id. at 784-85.
As an initial matter, Walker has abandoned any challenge to
the AC’s consideration of his bone cancer diagnosis by raising this
issue in passing outside the argument section of his brief. Further,
Walker fails to provide any discrete challenge to the AC’s evalua-
tion of his new evidence, instead only highlighting new evidence
without explaining how it was material or chronologically rele-
vant. Walker correctly concedes that
Washington is distinguisha-
ble from the instant case because the AC’s decision here indicates
it considered his evidence but determined that it would not affect
the ALJ’s decision or was not temporally relevant. Thus, because
Walker does not challenge the AC’s reasoning underlying its eval-
uation of this evidence, we affirm as to this issue.
Accordingly, for the foregoing reasons, we affirm.
AFFIRMED.
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