Case: 13-15769   Date Filed: 07/17/2014   Page: 1 of 11


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-15769
                         Non-Argument Calendar
                       ________________________

                    D.C. Docket No. 9:12-cv-80941-FJL



DOROTHY MARKUSKE,

                                                            Plaintiff-Appellant,

                                  versus

COMMISSIONER of SOCIAL SECURITY,

                                                           Defendant-Appellee.

                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________

                              (July 17, 2014)

Before CARNES, Chief Judge, TJOFLAT and JORDAN, Circuit Judges.

PER CURIAM:
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      Dorothy Markuske appeals the district court’s decision affirming the denial

of her application for disability insurance benefits. She contends that the

Administrative Law Judge (ALJ) erred by failing to: (1) give proper deference to

her treating physician’s opinion, (2) credit her subjective complaints about her

pain, and (3) provide substantial evidence that there were significant jobs in the

national economy available to someone in her position.

                                          I.

      Markuske filed an application in July 2009 for disability insurance benefits

under the Social Security Act. See 42 U.S.C. § 423. Markuske had worked as a

computer programmer from 1984 to 2004, but quit because pain and numbness in

her hands and arms prevented her from concentrating on her coding. She claimed

that, beginning in January 2009, she was disabled due to carpal tunnel syndrome in

both hands, ulnar nerve neuritis, cubital tunnel syndrome, median neuropathy,

tendonopathy of the distal triceps tendon, a cervical disc protrusion, osteoarthritis,

and muscle spasms. The Social Security Administration denied her initial

application and her request for reconsideration. Markuske then sought a hearing

before an ALJ, which was held on May 18, 2011.

      The ALJ applied the established five-step analysis for determining eligibility

for disability insurance benefits. See Winschel v. Comm’r of Soc. Sec., 

, 1178 (11th Cir. 2011); 20 C.F.R. § 404.1520 (2013). The ALJ found as



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follows: (1) Markuske had not engaged in substantial gainful activity from her

alleged onset date of January 21, 2009, through December 31, 2009, which was her

date last insured. 1 (2) Markuske had severe impairments consisting of depression,

anxiety, specific phobia (situational), fibromyalgia, and carpal tunnel syndrome.

(3) Those impairments did not meet or equal one of the Commissioner’s listings of

impairment, whether considered singly or in combination. (4) Markuske retained

the residual functional capacity (RFC) to perform a reduced range of light work but

was unable to perform her past relevant work.

       In the fifth and final step, the burden of proof shifts to the Commissioner to

prove that there is a significant number of jobs in the national economy that the

claimant is capable of performing. Doughty v. Apfel, 

, 1278 & n.2

(11th Cir. 2001). The ALJ therefore elicited testimony from a vocational expert

(VE). In her first hypothetical question, the ALJ asked the VE if a person of

Markuske’s age, education, and work experience could perform certain jobs

existing in the national economy if she were limited to: (1) performing light work;

(2) never climbing ladders, ropes, or scaffolds; (3) occasionally climbing stairs and

ramps; (4) occasionally balancing, stooping, kneeling, crouching, and crawling; (5)

frequently performing fine and gross manipulations with her dominant hand; and


   1
     The ALJ determined that Markuske had “acquired sufficient quarters of coverage to remain
insured through December 31, 2009” but no further. See generally 20 C.F.R. § 404.101 (2013).
Markuske does not dispute that determination.


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(6) receiving only simple instructions and procedures. The VE answered that there

was sufficient work available to such a person, including as a housekeeper and a

sales attendant. The ALJ then asked a second hypothetical question that further

limited the hypothetical individual to only occasional fine and gross manipulation

with her dominant hand. The VE responded that there would still be sufficient

work available, including as a furniture rental consultant and a children’s attendant.

Finally, the ALJ changed the limitation on the hypothetical individual’s dominant

hand one more time, asking what jobs would be available if the individual had

“limited right-hand dominant fingering.” The VE answered that “[a]ll light jobs”

would be available to such an individual, including housekeeper, sales attendant,

furniture rental consultant, and children’s attendant. Based on the VE’s testimony,

the ALJ determined that Markuske had sufficient work opportunities and therefore

was not entitled to disability insurance benefits.

      Markuske requested review by the Social Security Appeals Council and had

her request denied in July 2012. She then filed suit in district court, seeking

judicial review of the Commissioner’s decision under 42 U.S.C. § 405(g). The

district court granted summary judgment in favor of the Commissioner in

November 2013. This is Markuske’s appeal.

                                          II.




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       We review de novo the district court’s decision in a Social Security case,

applying the same standards as the district court. Ingram v. Comm’r of Soc. Sec.

Admin., 

, 1260 (11th Cir. 2007); Miles v. Chater, 

,

1400 (11th Cir. 1996). That means we review de novo the Commissioner’s legal

conclusions, but review factual findings only to determine if “substantial evidence”

supports them. Ingram 

(quotation marks omitted). On the

evidentiary continuum, substantial evidence falls in between a scintilla of evidence

and a preponderance of the evidence. 

. Evidence is

“substantial” if a reasonable person could accept that it adequately supports a

conclusion. 

contends that the ALJ’s RFC assessment should have included the

limitations identified by her treating neurologist, Dr. Qin Gu, in a medical source

statement form. 2 The opinion of a treating physician “is entitled to substantial

weight unless good cause exists for not heeding the treating physician’s diagnosis.”

Edwards v. Sullivan, 

, 583 (11th Cir. 1991). Good cause exists if,

among other things, the ALJ “clearly articulates” why the “evidence supported a

contrary finding.” Phillips v. Barnhart, 

, 1241 (11th Cir. 2004).


   2
     The medical source statement form is a standardized questionnaire used to ascertain a
physician’s opinion on the claimant’s physical or mental limitations. See, e.g., Cox v. Barnhart,

, 610 (8th Cir. 2003); 20 C.F.R. § 404.1513(b)(6) (2013).


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      In filling out the form, Dr. Gu gave answers that placed severe limitations on

Markuske’s ability to work. For example, he indicated that Markuske’s

impairments would prevent her from: lifting objects on more than an occasional

basis, standing or walking for more than two hours each workday, and sitting for

more than two hours each workday. Dr. Gu also estimated that Markuske’s

impairments would cause her to miss more than four workdays per month. Every

time the form asked Dr. Gu to identify the medical findings supporting his opinion,

he answered that he based his opinion on the “chief complaints” he heard from

Markuske.

      The ALJ gave Dr. Gu’s assessment “little weight” because it was “not

supported by evidence in the record.” First, the ALJ cited Dr. Gu’s own treatment

notes, which indicated that an MRI showed that Markuske had “only a minimal

disc protrusion and mild degenerative disc disease of the cervical spine” and that

medication had “stabilized” her neck pain. Second, the ALJ cited Markuske’s

“self-report that her medications were effective in relieving her pain symptoms.”

For example, her chiropractor’s treatment notes show that, after two months of

chiropractic treatment and taking Aleve, Markuske reported a dramatic

improvement in her back and neck pain. Her neck pain went from a seven on a

ten-point scale to a four, and her back pain went from a four to a two. And in the

“Pain Report” that Markuske included with her disability application, she



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acknowledged that Zanaflex helped relieve her pain symptoms. Finally, the ALJ

noted that the doctors who examined Markuske’s back reported only “minimal

findings of tenderness of the lumbar and sacral regions.”

       The ALJ provided a clear articulation of why the evidence undermined Dr.

Gu’s opinion on the medical source statement form and thus established good

cause. See 

. The contradictory treatment notes from Dr.

Gu, statements from Markuske, and clinical observations all supported the ALJ’s

finding that Dr. Gu’s answers on the medical source statement form were

exaggerations of Markuske’s limitations. See 

(holding

that the evidence supported the ALJ’s contrary finding where the treating physician

was contradicted by his previous treatment notes and the claimant’s admissions

about her activities). The ALJ therefore did not err by giving the form little

weight.3

                                               B.



   3
      We also note that the record provides an additional ground for the ALJ’s decision. “A
treating physician’s report may be discounted when it is not accompanied by objective medical
evidence or is wholly conclusory.” Crawford v. Comm’r of Soc. Sec., 

, 1159
(11th Cir. 2004) (quotation marks omitted). Thus, an ALJ may discount a treating physician’s
opinion where it “appears to be based primarily on [the claimant’s] subjective complaints of
pain.” 

the case with Dr. Gu’s opinion. On the medical source statement form, Dr.
Gu confirmed that all of his opinions on Markuske’s limitations were based on her “chief
complaints.” Chief complaint is a medical term of art for the patient’s subjective description of
the ailment for which she is seeking medical treatment. So Dr. Gu’s answers on the form were
based on Markuske’s subjective complaints, not objective medical evidence that Dr. Gu gleaned
through observation or testing.


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      Markuske also contends that the ALJ failed to properly credit her subjective

complaints of pain and limitations. A claimant can establish a disability through

personal testimony about pain or other symptoms. But the claimant must support

that testimony by also meeting two parts of a three-part showing: “(1) evidence of

an underlying medical condition; and (2) either (a) objective medical evidence

confirming the severity of the alleged pain; or (b) that the objectively determined

medical condition can reasonably be expected to give rise to the claimed pain.”

Wilson v. Barnhart, 

, 1225 (11th Cir. 2002). If the claimant satisfies

that three-part test, the ALJ cannot discredit the claimant’s testimony unless the

ALJ “articulate[s] explicit and adequate reasons for doing so.” 

hearing before the ALJ, Markuske testified that she had “constant

pain” in her hands and neck. She also described experiencing a “shooting pain . . .

that goes from my neck down my arms.” She explained that the neck pain also led

to the headaches that prevented her from continuing to work as a computer

programmer. Finally, she said that she suffered pain in her lower back and hips if

she sat or stood too long.

      The ALJ concluded that Markuske’s subjective complaints of pain were not

credible to the extent that they were inconsistent with the RFC determination that

the ALJ had made. The ALJ justified that conclusion based on her finding that

“the medical evidence reflects only minimal to mild medical findings for



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impairments of the back, neck and elbow.” First, the ALJ addressed Markuske’s

neck pain, noting that the same grounds for discounting Dr. Gu’s medical source

statement form applied to Markuske’s complaints. Next, the ALJ addressed

Markuske’s back pain. The ALJ pointed out that examining physicians noted only

“minimal findings of tenderness of the lumbar and sacral regions” and “observed

[her] sitting comfortably and having no difficulty getting out of a seated position.”

Finally, the ALJ addressed Markuske’s carpal tunnel syndrome. The ALJ noted

that nerve conduction studies showed that Markuske’s elbow pain had improved,

culminating in Dr. Gu’s March 2009 study concluding that she had “[b]asically

normal nerve conduction.” The ALJ also cited Dr. Gu’s January 2009 examination

notes, in which he found that Markuske’s arms had “5/5 muscle strength, normal

muscle tone, and normal range of motion of the shoulders despite tenderness and

decreased strength of the right elbow and hand.”

      The objective medical evidence cited by the ALJ provided “adequate

reasons” for her decision to partially discredit Markuske’s subjective complaints.

See 

; see also, e.g., Tucker v. Barnhart, 

, 783

(8th Cir. 2004).

                                         C.




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       Finally, Markuske contends that the ALJ’s hypothetical questions to the VE

were fatally flawed because they did not include: (1) her moderate limitations in

concentration, persistence, or pace; and (2) her phobia of the germs in hospitals.

       As for the concentration, persistence, or pace limitations, the ALJ found that

Markuske had “moderate difficulties” in maintaining attention. The ALJ qualified

that finding by pointing out that Markuske reported that she had “a ‘fine’ ability to

follow written instructions,” and that a non-examining state agency consultant, Dr.

Ronald Chase, had determined that she “could perform simple tasks at an

acceptable pace.”4 The ALJ then incorporated those limitations in her hypothetical

questions to the VE by specifying that the hypothetical individual “could

understand, remember, and carry out simple instructions and procedures, . . . may

show occasional difficulty with more complex tasks, [and] could sustain task and

perform an acceptable pace.” The ALJ’s hypothetical question thus included the

limitations supported by the medical evidence, which is all that is necessary. See

Meredith v. Bowen, 

, 654 (7th Cir. 1987) (“All that is required is that

the hypothetical question be supported by the medical evidence in the record.”); cf.

–81 (indicating that an ALJ’s hypothetical question is

proper if it matches the limitations specified by the medical evidence). Markuske

   4
     In full, Dr. Chase determined that Markuske “has the capacity to understand, remember and
carry out simple instructions and procedures, and make appropriate decisions. [She] may show
occasional difficulty with more complex tasks as a result of symptoms. [She] is able to sustain
simple tasks and perform at an acceptable pace.”


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does not identify any other limitations in concentration, persistence, or pace that

were supported by medical evidence and omitted by the ALJ.

      As for Markuske’s phobia about germs in hospitals, none of the jobs

identified by the VE were limited to hospitals. Most of them — housekeeper,

furniture rental consultant, and children’s attendant — by definition involve work

outside of a hospital setting. So even if we assume that the ALJ erred by omitting

a limitation that addressed Markuske’s phobia of hospitals, that limitation would

not have changed the VE’s answer or the ALJ’s legal conclusion. The alleged

error was therefore harmless. See Diorio v. Heckler, 

, 728 (11th Cir.

1983) (holding that a mistake by the ALJ that does not affect her ultimate

conclusion is harmless error).

      AFFIRMED.




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