Christopher Ryan Leslie v. Commissioner, Social Security Administration

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10676
Non-Argument Calendar
____________________
CHRISTOPHER RYAN LESLIE,
Plaintiff-Appellant,
versus
COMMISSIONER, SOCIAL SECURITY ADMINISTRATION,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Alabama
D.C. Docket No. 4:20-cv-00512-CLM
____________________
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2 Opinion of the Court 22-10676
Before R OSENBAUM , JILL PRYOR , and G RANT, Circuit Judges.
PER CURIAM:
Christopher Leslie disagrees with the Commissioner of
Social Security’s determination that he is not disabled. His
applications for a period of disability, disability insurance benefits,
and supplemental security income were denied and the district
court affirmed. Leslie now argues that the administrative law
judge (ALJ) who presided over his hearing gave insufficient weight
to the opinion of Dr. June Nichols, Psy.D, and that the ALJ’s finding
that Leslie had residual functional capacity to perform a full range
of work with no exertional limitations was not supported by
substantial evidence. He also argues that the district court gave a
post hoc rationalization for the ALJ’s decision. Because Leslie has
failed to show that the ALJ’s decision was not supported by
substantial evidence, we affirm.
I.
Leslie applied for benefits in February 2017, claiming that his
epilepsy and depression had made him unable to work since
October 12, 2016. He previously worked at a restaurant, a lumber
yard, and Walmart, but he testified that he stopped working after
he started having seizures at work.
In April 2017, Leslie was referred by Disability
Determination Services to Dr. Nichols, who conducted a disability
determination evaluation of Leslie. The evaluation provided
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22-10676 Opinion of the Court 3
mixed evidence on Leslie’s mental and emotional capabilities. On
the one hand, Dr. Nichols noted many things that suggested that
Leslie retains significant mental and emotional capacity. For
example, Leslie presented as neat and clean, he described visiting
with friends, and he successfully completed several tasks showing
basic concentration and memory skills, such as counting from 20
to 1 in 20 seconds, spelling “world” backward, performing addition
and subtraction, recalling three objects after a ten-minute period,
and providing his personal story in detail. On the other hand, Dr.
Nichols detailed Leslie’s self-described history of depression, abuse,
and struggles with formal education. She opined that Leslie’s
anxiety, depression, and learning disabilities would impair his
“ability to respond to supervision, to coworkers and to work
pressures in a work setting” and that he would struggle to
“remember, understand, and carry out work related functions.”
Dr. Teresa Moran, M.D., then reviewed the record and gave her
opinion that Leslie could work with some limitations in May 2017.
Leslie’s application was denied in May 2017, and he
requested and received a hearing before an ALJ. In February 2019,
after a hearing, the ALJ determined that Leslie was not disabled and
denied his application. The ALJ cited Leslie’s medical records
showing many normal physical functions; evidence showing that
Leslie could perform some multistep activities; evidence from
Leslie’s daily life about his ability to maintain friendships, prepare
meals, and care for himself; the opinion of Dr. Moran; elements of
Dr. Nichols’s examination; and other evidence in the record.
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4 Opinion of the Court 22-10676
The ALJ concluded that “the overall evidence of the record
is inconsistent with the claimant’s allegations of totally
incapacitating symptomatology.” The ALJ instead determined that
Leslie had the residual functional capacity to perform a full range
of work at all exertional levels with several nonexertional
limitations. These nonexertional limitations included a finding that
Leslie cannot be exposed to hazardous machinery or drive
commercially, a finding that Leslie can perform simple and
repetitive tasks but not detailed or complex tasks, and a finding that
Leslie can tolerate occasional contact with coworkers and the
public but should deal primarily with things and not people. Based
on Leslie’s residual functional capacity and limitations, the ALJ
determined that Leslie could adapt to work as a dishwasher, a
cleaner, or a cook helper.
As part of his evaluation of the medical and non-medical
evidence of Leslie’s mental impairments, the ALJ discussed the
opinions of Drs. Moran and Nichols. The ALJ considered and gave
partial weight to Dr. Moran’s opinion, agreeing with some but not
all of her proposed limitations on Leslie’s ability to work. And the
ALJ considered and gave little weight to Dr. Nichols’s opinion,
determining that her opinion was “broad” and did not “note
specific function-by-function limitations.”
The Appeals Council declined to review the ALJ’s
determination. That brought Leslie to the district court, which
affirmed the ALJ
. This is Leslie’s appeal.
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22-10676 Opinion of the Court 5
II.
Because the Appeals Council declined to review the ALJ’s
decision, we review the ALJ’s ruling as the final decision of the
Commissioner.
Viverette v. Comm’r of Soc. Sec., 13 F.4th 1309,
1313 (11th Cir. 2021). When the Commissioner denies benefits, we
ask whether the Commissioner’s decision is supported by
substantial evidence, with de novo review of conclusions of law.
Id. at 1313–14. “Substantial evidence is less than a preponderance,
but rather such relevant evidence as a reasonable person would
accept as adequate to support a conclusion. Nevertheless,
substantial evidence requires more than a scintilla.”
Id. at 1314
(quotations omitted). Under this limited standard of review, we
will not make factual findings or credibility determinations in the
first instance or re-weigh evidence.
Id.
A claimant must be disabled to be eligible for disability
insurance benefits and supplemental security income.
See
42 U.S.C. §§ 423(a)(1)(E), 1382(a)(1)-(2).1 Social Security
regulations outline a five-step process that the ALJ must use to
determine whether a claimant is disabled, with an intermediate
step that determines the claimant’s residual functional capacity.
See 20 C.F.R. §§ 404.1520, 416.920. Like the district court, we think
that this five-step process is easiest to understand with a chart:
1 Supplemental security income is also available for the aged and blind, but
Leslie does not claim to be either aged or blind.
See 42 U.S.C. § 1382.
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6 Opinion of the Court 22-10676
The 5-Step Test
Step 1 Is the claimant engaged in
substantial gainful activity?
If yes, claimant is not
disabled.
If no, proceed to Step 2.
Step 2 Does the claimant suffer from a
severe, medically-determinable
impairment or combination of
impairments?
If no, claimant is not
disabled.
If yes, proceed to Step 3.
Step 3 Does the Step-2 impairment
meet the criteria of an
impairment listed in 20 C.F.R.
Part 404, Subpart P, Appx. 1?
If yes, claimant is disabled.
If no, proceed to Step 4.
*
Determine Residual Functional Capacity*
Step 4 Does the claimant possess the
residual functional capacity to
perform the requirements of his
past relevant work?
If yes, claimant is not
disabled.
If no, proceed to Step 5.
Step 5 Is the claimant able to do any
other work considering his
residual functional capacity, age,
education, and work experience?
If yes, claimant is not
disabled.
If no, claimant is disabled.
See id.;
see also Viverette, 13 F.4th at 1312–13;
Leslie v. Kijikazi,
2022 WL 19648, at *1 (N.D. Ala. Jan. 3, 2022).
As part of the ALJ’s evaluation, the ALJ considers medical
opinions about the claimant from acceptable medical sources.
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22-10676 Opinion of the Court 7
“The ALJ must state with particularity the weight given to different
medical opinions and the reasons therefor.”
Buckwalter v. Acting
Comm’r of Soc. Sec., 5 F.4th 1315, 1320-21 (11th Cir. 2021)
(quotation omitted). To meet this standard, the ALJ need not “cite
every piece of evidence in the record” but must demonstrate that
he “considered the claimant’s medical condition as a whole.”
Id. at
1326. The ALJ must “state with at least some measure of clarity
the grounds for his decision.”
Winschel v. Comm’r of Soc. Sec.,
631 F.3d 1176, 1179 (11th Cir. 2011) (quotation omitted).
For claims filed before March 27, 2017, ALJs are to treat the
opinions of treating physicians (who have an ongoing medical
relationship with the claimant) and non-treating physicians (who
provide one-off consultative opinions about the claimant)
differently.2 For these claims, a treating physician’s opinion is
entitled to “substantial or considerable weight unless there is good
cause to discount” it.
Simon v. Comm’r, Soc. Sec. Admin., 7 F.4th
1094, 1104 (11th Cir. 2021) (quotations omitted). But a non-
treating physician’s opinion based on a single examination is “not
2 In 2017, the Commissioner of Social Security eliminated the distinction
between treating and non-treating physicians.
Harner v. Soc. Sec. Admin.,
Comm’r, 38 F.4th 892, 897 (11th Cir. 2022) (citing 82 Fed. Reg. 5,844, 5,853
(Jan. 18, 2017)). But these amendments did not apply to any claims filed before
March 27, 2017.
See id.; 82 Fed. Reg. 16,869, 16,869 (Apr. 6, 2017)
. Because
Leslie applied for his benefits in February 2017, this opinion describes the pre-
2017 regulations. We do not address the standard under the new regulations.
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8 Opinion of the Court 22-10676
entitled to great weight.”
Crawford v. Comm’r of Soc. Sec., 363
F.3d 1155, 1160 (11th Cir. 2004).
III.
At the intermediate step of the disability determination
process, the ALJ found that Leslie had the residual functional
capacity to do a full range of work at all exertional levels with
nonexertional limitations. Leslie disputes this finding for two
reasons.
First, Leslie argues that the ALJ erred by giving little
weight to the opinion of Dr. Nichols, the Commissioner’s
consulting physician.
Second, Leslie argues that the ALJ’s finding
that he could work at full capacity without exertional limitations
was not supported by substantial evidence. We address these two
arguments in turn.
A.
Leslie’s primary argument that the ALJ gave Dr. Nichols’s
opinion too little weight relies on the Seventh Circuit’s decision in
Wilder v. Chater, 64 F.3d 335 (7th Cir. 1995). In
Wilder, the
Seventh Circuit applied a “degree of suspicion to the administrative
law judge’s decision to go against the only medical evidence in the
case” when that evidence was “the only direct testimony
concerning the critical issue.”
Id. at 337. Leslie argues that this
Court should likewise apply a “degree of suspicion” to the ALJ’s
decision to give little weight to Dr. Nichols’s opinion, especially
given that Dr. Nichols’s opinion was the “only evidence by an
examining mental health professional.”
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22-10676 Opinion of the Court 9
Dr. Nichols’s opinion was not entitled to the deference that
Leslie asserts. Dr. Nichols was a non-treating physician.3 This
Circuit has held that the opinions of non-treating physicians based
on a single examination are “not entitled to great weight.”
Crawford, 363 F.3d at 1160. Of course, the ALJ’s decision to
discount the opinion must still be supported by substantial
evidence. But under
Crawford, we do not apply elevated scrutiny
to the ALJ’s decision to give little weight to Dr. Nichols’s opinion.
And even if
Wilder were the law in this Circuit, we doubt that it
would apply here, where the physician’s opinion is not “the only
medical evidence in the case.”
Wilder, 64 F.3d at 337.
Leslie appears to make three other arguments that the ALJ’s
decision to give little weight to Dr. Nichols’s testimony was not
supported by substantial evidence: (1) He argues that the ALJ failed
to state with at least “some measure of clarity” the grounds for
repudiating the examining physician’s opinion; (2) He argues that
the ALJ substituted his judgment for Dr. Nichols’s medical
expertise; and (3) He argues that the ALJ should have contacted Dr.
Nichols for clarification about the basis of her opinion before giving
it little weight.
3 Leslie cites some cases interpreting the treating physician rule rather than
the non-treating physician standard described by this Court in
Crawford.
See,
e.g.,
Hillsman v. Bowen, 804 F.2d 1179, 1182 (11th Cir. 1986). These cases do
not apply to the ALJ’s decision to give little weight to the opinion of Dr.
Nichols, a non-treating physician, and we do not consider them.
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10 Opinion of the Court 22-10676
We are not persuaded by any of these arguments. After
documenting record evidence about Leslie’s mental and emotional
capabilities, the ALJ explained that he considered and gave little
weight to the opinion because it was “broad” and did “not note
specific function-by-function limitations” before finding the
“overall evidence of the record” to be “inconsistent with the
claimant’s allegations of totally incapacitating symptomatology.”
Although Leslie repeatedly asserts that the ALJ’s explanation failed
to provide “some measure of clarity,” he never explains what is
unclear about that analysis. To the contrary, we conclude that it is
appropriately clear.
Likewise, while we agree with Leslie that an ALJ may not
take on the role of doctor, the “final responsibility for deciding” the
residual functional capacity is “reserved to the Commissioner,” not
an examining physician. 20 C.F.R. § 404.1527;
see also 20 C.F.R. §
404.1546(c) (giving the ALJ responsibility for assessing residual
functional capacity);
Watson v. Heckler, 738 F.2d 1169, 1172 (11th
Cir. 1984) (discussing how an ALJ necessarily must resolve
conflicting medical evidence). By weighing conflicting evidence,
the ALJ stayed within his role.
And while Leslie provides several non-precedential cases in
which ALJs were admonished to investigate evidence further
rather than accept a seemingly anomalous conclusion, he provides
no support for the idea that an ALJ
must follow up with
every non-
treating physician’s opinion before giving that physician’s opinion
little weight—nor does he attempt to reconcile that proposition
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22-10676 Opinion of the Court 11
with
Crawford’s holding that non-treating physicians’ opinions are
“not entitled to great weight.” 363 F.3d at 1160. We do not second-
guess the ALJ’s decision to rely on the evidence that was already in
the record.
See also 20 C.F.R. § 404.1520b(b) (stating that the
Commissioner might, but also might not, recontact medical
sources
if there is insufficient existing evidence to make a disability
determination).
B.
Leslie also claims that the ALJ’s finding that he had the
residual functional capacity to perform a full range of work at all
exertional levels was not supported by substantial evidence. Here,
we interpret Leslie as making two distinct arguments.
First, Leslie
claims that the ALJ’s finding is contradicted by both the ALJ’s own
determination that Leslie cannot perform past work and by Dr.
Nichols’s evaluation.
Second, Leslie claims that the ALJ erred
because he did not find that Leslie would be able to hold onto a job.
Again we are not persuaded. Leslie cites evidence in the
record that would have provided some support for a finding that
he is disabled. But he does not engage with the ALJ’s nonexertional
limitations on Leslie’s residual functional capacity—such as a
finding that Leslie cannot be exposed to hazardous machinery and
commercial driving, a finding that Leslie can perform simple and
repetitive tasks but not detailed or complex tasks, and a finding that
Leslie can tolerate occasional contact with coworkers and the
public but should deal primarily with things and not people. Nor
does Leslie engage with the evidence of his capacity to continue
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12 Opinion of the Court 22-10676
working—like his medical records showing many normal physical
functions; the evidence showing that Leslie could perform some
multistep activities; and the evidence from Leslie’s daily life about
his ability to maintain friendships, prepare meals, and care for
himself—all of which contributed to the ALJ’s determination that
“the overall evidence of the record is inconsistent with the
claimant’s allegations of totally incapacitating symptomatology.”
The record shows conflicting evidence, and the ALJ grappled with
that evidence to reach a nuanced determination.
Leslie may think that the ALJ should have weighed the
evidence differently, but we are reviewing the ALJ’s determination
for whether it is supported by substantial evidence. We cannot
reweigh the evidence under this deferential standard.
See
Viverette, 13 F.4th at 1314.
As for Leslie’s argument that the ALJ failed to determine that
Leslie could keep a job, Leslie only relies on out-of-circuit
authority.
See Singletary v. Bowen. 798 F.2d 818 (5th Cir. 1986).
And in any event, the circuit in question has since clarified that an
ALJ’s finding that a claimant can work is generally presumed to
include a finding that the claimant can keep his job.
See Frank v.
Barnhart, 326 F.3d 618, 619 (5th Cir. 2003).4
4 If Leslie instead intended to argue that—even if a factual finding that Leslie
had the residual functional capacity to
get a job would be supported by
substantial evidence—a factual finding that Leslie could
keep a job would not
be, then he never developed that argument and therefore abandoned it.
See
Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681–82 (11th Cir. 2014).
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22-10676 Opinion of the Court 13
IV
Leslie independently argues that the district court provided
an impermissible post hoc justification for the ALJ’s decision in
violation of the rule that agency actions must be supported by the
rationale given at the time of the agency’s decision.
See generally
SEC v. Chenery Corp., 318 U.S. 80 (1943). This argument
misunderstands this Court’s role. Our “review is the same as that
of the district court,” so we “neither defer to nor consider any
errors in the district court’s opinion.”
Henry v. Comm’r of Soc.
Sec., 802 F.3d 1264, 1267 (11th Cir. 2015) (quotation omitted). In
other words, we directly review the Commissioner’s decision; we
do not evaluate the reasoning of the district court. Regardless, the
district court correctly noted that the ALJ explained his discounting
of Dr. Nichols’s opinion and that the ALJ evaluated the medical
evidence in the record, including Dr. Nichols’s opinion.
* * *
Leslie has failed to show that the ALJ’s discission was not
supported by substantial evidence. We therefore AFFIRM the
judgment of the district court.
Perhaps medical evidence would show that Leslie’s seizures prevent him from
keeping full-time work, as Leslie’s counsel appeared to suggest when asking a
hypothetical of the vocational expert during the hearing. But Leslie
abandoned that argument by not briefing it to this Court or the district court,
so we do not consider it.
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