John Esco, Jr. v. Commissioner of Social Security

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-11777
Non-Argument Calendar
____________________
JOHN ESCO, JR.,
Plaintiff-Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
Defendant- Appellee.
____________________
Appeal from the United States District Court
for the Middle District of Alabama
D.C. Docket No. 2:21-cv-00119-CWB
____________________
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2 Opinion of the Court 23-11777
Before BRASHER, ABUDU and DUBINA, Circuit Judges.
PER CURIAM:
Appellant John Esco, Jr., appeals the district court’s order
affirming the Social Security Administration’s (“SSA”) denial of his
claim for disability insurance benefits (“DIB”).1 He argues that the
administrative law judge (“ALJ”) erred in finding (1) Esco’s
subjective complaints of pain were “not entirely consistent” with
the record, (2) Esco did not meet Listing 1.04(A), and (3) Dr.
Carter’s and Dr. Hayden’s opinions were not persuasive. Having
read the parties’ briefs and reviewed the record, we affirm the
district court’s order denying Esco’s claim for DIB.
I.
In a social security disability case in which the Appeal
Council has denied review, we review the ALJ’s decision as the
Commissioner’s final decision. Viverette v. Comm’r of Soc. Sec.,
13 F.4th 1309, 1313 (11th Cir. 2021). We review the ALJ’s decision
for substantial evidence and his application of legal principles de
novo. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). In
reviewing for substantial evidence, “we may not decide the facts
anew, reweigh the evidence, or substitute our judgment for” the
ALJ’s. Viverette, 13 F.4th at 1314 (quotation marks omitted).
1 The parties consented to have this case disposed of by a magistrate judge
pursuant to 28 U.S.C. § 636(c).
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23-11777 Opinion of the Court 3
Substantial evidence is any relevant evidence, less than a
preponderance, that a reasonable person would accept as adequate
to support a conclusion. Moore v. Barnhart, 405 F.3d at 1211.
A claimant must be disabled to be eligible for DIB, 42 U.S.C.
§ 423(a)(1)(E), and he bears the burden of proving that he is
disabled. Moore, 405 F.3d at 1211. A claimant is disabled if he
cannot engage in substantial gainful activity by reason of a
medically determinable impairment that can be expected to result
in death “or which has lasted or can be expected to last for a
continuous period of not less than 12 months.” 42 U.S.C.
§ 423(d)(1)(A).
After considering a claimant’s complaints of pain, the ALJ
may reject them as not credible, which finding we will review for
substantial evidence. Marbury v. Sullivan, 957 F.2d 837, 839 (11th
Cir. 1992). The ALJ must explicitly and adequately articulate his
reasons if he discredits subjective testimony. Id. The credibility
determination does not need to cite “particular phrases or
formulations”, but it cannot merely be a broad rejection that does
not allow us to conclude that the ALJ considered a claimant’s
medical condition in its entirety. Dyer v. Barnhart, 395 F.3d 1206,
1210 (11th Cir. 2005) (quotation marks omitted).
A claimant’s subjective complaints are insufficient alone to
establish a disability. 20 C.F.R. § 404.1529(a); see Edwards v.
Sullivan, 937 F.2d 580, 584 (11th Cir. 1991). A claimant’s subjective
testimony of pain and other symptoms can establish a finding of
disability if the medical evidence supports it. Holt v. Sullivan, 921
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4 Opinion of the Court 23-11777
F.2d 1221, 1223 (11th Cir. 1991). The claimant must show evidence
of an underlying medical condition and either objective medical
evidence confirming the severity of the alleged symptoms or
evidence that the objectively determined medical condition is
severe enough that it could reasonably be expected to give rise to
the alleged pain. Id.
Once this is established, the ALJ then evaluates the intensity
and persistence of a claimant’s alleged symptoms and their effect
on his ability to work. 20 C.F.R. § 404.1529(c). When evaluating
the extent to which a claimant’s symptoms affect his capacity to
perform basic work activities, the ALJ considers the daily activities;
the location, duration, frequency, and intensity of the symptoms;
precipitating and aggravating factors; the type, dosage,
effectiveness, and side effects of medication taken to alleviate
symptoms; treatment other than medication; any measures used to
relieve symptoms; other factors concerning functional limitations
and restrictions due to symptoms; and inconsistencies between the
evidence and subjective statements. Id. § 404.1529(c)(3), (4).
The record here demonstrates that substantial evidence
supports the ALJ’s finding that Esco’s medically determinable
impairments reasonably could be expected to cause some of his
alleged symptoms but that his statements regarding the intensity,
persistence, and limiting effects of those symptoms were “not
entirely consistent” with the evidence. In making the credibility
determination, the ALJ referenced Esco’s medical records and
Esco’s hearing testimony, which both indicated that his treatments
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23-11777 Opinion of the Court 5
improved his functioning. The ALJ also considered both function
reports submitted to the SSA and Esco’s hearing testimony, which
showed that he was able to perform the activities of daily life, such
as washing clothes, cooking basic microwave meals, driving, going
shopping, dressing, and caring for his pets. While Esco did
complain of pain and limitations associated with his impairments,
subjective complaints alone are not sufficient to establish disability
and evidence showed that his treatments were helping with his
pain. Furthermore, those treatments and the information in the
function reports showing daily activity are inconsistent with his
subjective testimony. We conclude that the ALJ’s assessment
satisfied the substantial evidence standard, and we affirm in this
respect.
II.
The ALJ uses a five-step, sequential evaluation process to
determine whether a claimant is disabled. Winschel v. Comm’r of
Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011). Specifically, the ALJ
must evaluate: (1) whether the claimant engaged in substantial
gainful work; (2) whether the claimant has a severe impairment;
(3) whether the severe impairment meets or equals an impairment
in the Listings of Impairments; (4) whether the claimant has the
RFC to perform his past relevant work; and (5) whether, in the light
of the claimant’s RFC, age, education, and work experience, there
exist other jobs in the national economy that the claimant can
perform. 20 C.F.R. § 404.1520(a)(4)(i)-(v).
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6 Opinion of the Court 23-11777
Step three considers whether the claimant has shown that
he has an impairment that “meets or equals a disability described
in the Listing of Impairments [in Appendix 1 to Subpart P of Part
404 of the Social Security regulations], which describes
impairments that are considered severe enough to prevent a
person from doing any gainful activity.” Davis v. Shalala, 985 F.2d
528, 532 (11th Cir. 1993); 20 C.F.R. § 404.1520(a)(4)(iii). “To ‘meet’
a Listing, a claimant must have a diagnosis included in the Listings
and must provide medical reports documenting that the conditions
meet the specific criteria of the Listings and the duration
requirement.” Wilson v. Barnhart, 284 F.3d 1219, 1224 (11th Cir.
2002). The duration requirement is satisfied if the impairment has
lasted or is expected to last for a continuous period of at least 12
months. 20 C.F.R. § 404.1509. “If a claimant’s condition meets or
equals the listed impairments, he is conclusively presumed to be
disabled and entitled to benefits.” Bowen v. City of New York, 476
U.S. 467, 471, 106 S. Ct. 2022, 2025 (1986). Only if a claimant does
not meet a listing does the analysis proceed to step four. Id.
Listing 1.04(A) in effect at the time the ALJ made his decision
provided in part:
Disorders of the spine (e.g., herniated nucleus
pulposus, spinal arachnoiditis, spinal stenosis,
osteoarthritis, degenerative disc disease, facet
arthritis, vertebral fracture), resulting in compromise
of a nerve root (including cauda equina) or the spinal
cord. With:
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23-11777 Opinion of the Court 7
A. Evidence of nerve root compression characterized
by neuro‑anatomic distribution of pain, limitation
of motion of the spine, motor loss (atrophy with
associated muscle weakness or muscle weakness)
accompanied by sensory or reflect loss and, if
there is involvement of the lower back, positive
straight-leg raising test (sitting and supine).
20 C.F.R. § Pt. 404, Subpt. P, App. 1, § 1.04(A) (effective through
April 1, 2021).
The record demonstrates that substantial evidence supports
the ALJ’s finding that Esco did not meet Listing 1.04(A) because the
evidence in the record did not show that his impairments rose to
the listing level severity. The ALJ noted that Esco’s impairments
did not rise to the level of severity contemplated by that listing
because the diagnostic evidence did not show the diagnostic
findings necessary for the listing and the physical examinations did
not show the longitudinal or durational requirement of the listing.
A 2019 MRI did not show evidence of cord or nerve root
impingement, nor did a nerve conduction study in 2018. Thus,
Esco failed to present evidence of ongoing nerve compression
sufficient to meet the requirements of Listing 1.04(A), and the
medical evidence supported the ALJ’s determination.
Furthermore, as the ALJ noted, Esco failed to meet his burden of
showing that his impairment satisfied the durational requirement
of at least 12 months. The sporadic treatment notes Esco
references are from different points in time (not continuous) when
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8 Opinion of the Court 23-11777
he met the requirements of the listing, and, thus, are insufficient to
meet his burden. We conclude that the ALJ correctly determined
that Esco failed to meet Listing 1.04(A), and we affirm in this
respect.
III.
For claims filed before March 27, 2017, “[t]he opinion of a
treating physician” had to be “given substantial or considerable
weight unless good cause [was] shown to the contrary.” Phillips v.
Barnhart, 357 F.3d 1232, 1240 (11th Cir. 2004) (quotation marks
omitted). “For claims filed . . . on or after March 27, 2017,” which
applies in Esco’s case, an ALJ must “not defer or give any specific
evidentiary weight, including controlling weight, to any medical
opinion(s) or prior administrative medical finding(s), including
those from [a claimant’s] medical sources.” 20 C.F.R. §
404.1520c(a). Instead, as we noted in Harner v. Soc. Sec. Admin.,
Comm’r, the new regulation “provides several factors for
determining what weight to give a claimant’s proffered medical
opinions.” 38 F.4th 892, 897 (11th Cir. 2022). “Those factors
include the supportability of the medical opinion, its consistency
with other record evidence, the physician’s relationship with the
claimant, the physician’s specialty, and other relevant information,
such as the physician’s familiarity with the other record evidence
and with making a claim for disability.” Id. (citing 20 C.F.R.
§ 404.1520c(c)(1)‑(5)).
The most important factors for the ALJ to consider when
evaluating the persuasiveness of medical opinions are
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23-11777 Opinion of the Court 9
supportability and consistency. 20 C.F.R. § 404.1520c(a). For
supportability, “[t]he more relevant the objective medical evidence
and supporting explanations presented by a medical source are to
support his or her medical opinion(s) . . ., the more persuasive the
medical opinions . . . will be.” Id. § 404.1520c(c)(1). For
consistency, “[t]he more consistent a medical opinion(s) . . . is with
the evidence from other medical sources and nonmedical sources
in the claim, the more persuasive the medical opinion(s) . . . will
be.” Id. § 404.1520c(c)(2). The ALJ “will articulate how [he]
considered the medical opinions and prior administrative medical
findings in [the claimant’s] claim according to paragraph (b).” Id.
§ 404.1520c(a).
The record demonstrates that substantial evidence supports
the ALJ’s finding that Dr. Carter’s opinion was “not persuasive”
and Dr. Hayden’s opinion “non persuasive,” because they were not
entirely consistent with the evidence in the record. The ALJ
properly considered the relevant factors including supportability
and consistency in weighing the medical opinion evidence in the
record. In making its determination, the ALJ cited Esco’s own
testimony of his daily activities while living independently. The
ALJ also stated that Dr. Carter’s own records did not support his
opinion, finding the opinion not persuasive specifically as it related
to the extensive limitations in walking, sitting, and standing, based
on the lack of clinical observations or objective testing. The ALJ’s
opinion highlighted that Dr. Hayden’s opinion was not fully
consistent with his examination of Esco nor with Esco’s stated daily
activities. We conclude that the weight the ALJ afforded to the
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10 Opinion of the Court 23-11777
medical opinions of Dr. Carter and Dr. Hayden was supported by
substantial evidence, and we affirm in this respect.
Accordingly, based on the aforementioned reasons, we
affirm the district court’s order affirming the SSA’s denial of Esco’s
claim for DIB.
AFFIRMED.
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