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Margaret Pettaway v. Michael J. Astrue, 09-11876 (2010)

Court: Court of Appeals for the Eleventh Circuit Number: 09-11876 Visitors: 11
Filed: Apr. 26, 2010
Latest Update: Feb. 21, 2020
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ FILED U.S. COURT OF APPEALS No. 09-11876 ELEVENTH CIRCUIT APRIL 26, 2010 Non-Argument Calendar JOHN LEY _ CLERK D. C. Docket No. 08-00437-CV-3-RV-MD MARGARET PETTAWAY, Plaintiff-Appellant, versus MICHAEL J. ASTRUE, Defendant-Appellee. _ Appeal from the United States District Court for the Northern District of Florida _ (April 26, 2010) Before EDMONDSON, WILSON and PRYOR, Circuit Judges. PER CURIAM: Margaret Pettaw
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                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________                FILED
                                                      U.S. COURT OF APPEALS
                            No. 09-11876                ELEVENTH CIRCUIT
                                                            APRIL 26, 2010
                        Non-Argument Calendar
                                                             JOHN LEY
                      ________________________
                                                              CLERK

                D. C. Docket No. 08-00437-CV-3-RV-MD


MARGARET PETTAWAY,

                                                          Plaintiff-Appellant,

                                 versus

MICHAEL J. ASTRUE,

                                                         Defendant-Appellee.


                      ________________________

               Appeal from the United States District Court
                   for the Northern District of Florida
                     _________________________

                             (April 26, 2010)

Before EDMONDSON, WILSON and PRYOR, Circuit Judges.
PER CURIAM:



       Margaret Pettaway, appearing pro se, appeals the district court’s order

affirming the Social Security Commissioner’s denial of Pettaway’s application for

disability insurance benefits.* No reversible error has been shown; we affirm.

       Our review of the Commissioner’s decision is limited to whether substantial

evidence supports the decision and whether the correct legal standards were

applied. Wilson v. Barnhart, 
284 F.3d 1219
, 1221 (11th Cir. 2002). “Substantial

evidence is more than a scintilla and is such relevant evidence as a reasonable

person would accept as adequate to support a conclusion.” Crawford v. Comm’r of

Soc. Sec., 
363 F.3d 1155
, 1158 (11th Cir. 2004). Under this limited standard of

review, we may not make fact-findings, re-weigh the evidence, or substitute our

judgment for that of the Administrative Law Judge (“ALJ”). Moore v. Barnhart,

405 F.3d 1208
, 1211 (11th Cir. 2005).

       A person who applies for Social Security disability benefits must prove her

disability. See 20 C.F.R. § 404.1512. Disability is the “inability to engage in any

substantial gainful activity by reason of any medically determinable physical or

mental impairment which can be expected to result in death or which has lasted or


       *
       Pettaway claimed that she was affected by many impairments, including fibromyalgia,
lumbar disc disease, arthritis, obesity, and depression.

                                             2
can be expected to last for a continuous period of not less than 12 months.” 42

U.S.C. § 423(d)(1)(A).

      We first address Pettaway’s contention that the ALJ erred in making an

adverse credibility determination about her claims of being affected by pain.

Credibility determinations about subjective testimony generally are reserved to the

ALJ. See Johns v. Bowen, 
821 F.2d 551
, 557 (11th Cir. 1987). But if the ALJ

“decides not to credit such testimony, he must articulate explicit and adequate

reasons for doing so.” Holt v. Sullivan, 
921 F.2d 1221
, 1223 (11th Cir. 1991). In

addition, we have “established a three part ‘pain standard’ that applies when a

claimant attempts to establish disability through his or her own testimony of pain

or other subjective symptoms.” 
Id. This standard
requires these things:

      (1) evidence of an underlying medical condition and either (2)
      objective medical evidence that confirms the severity of the alleged
      pain arising from that condition or (3) that the objectively determined
      medical condition is of such severity that it can be reasonably
      expected to give rise to the alleged pain.

Id. Here, the
ALJ concluded that Pettaway’s medically determinable

impairments could reasonably be expected to produce the extreme physical and

mental restrictions alleged but that the objective medical evidence did not support

the severity of the alleged limitations. We conclude that substantial evidence



                                          3
supports the ALJ’s adverse credibility determination. The ALJ provided specific

reasons for discrediting Pettaway’s testimony about the severity of her pain: that

the reports of several specialists (including an orthopedist and a pain management

specialist) who evaluated Pettaway described normal physical examinations with

only mild to moderate limitations and that Pettaway’s testimony about her daily

activities belied her contentions about the severity of her pain. See 20 C.F.R. §

404.1529(c)(3) (the ALJ may consider a claimant’s daily activities when

evaluating her complaints of pain). We see no reversible error in the ALJ’s

assessment of Pettaway’s credibility.

      We next address Pettaway’s argument that the ALJ improperly discounted

the opinion of her treating physician (Dr. Hakima) that Pettaway suffered from

marked limitations and virtually incapacitating pain so that Pettaway was restricted

from working. A treating physician’s testimony “must be given substantial or

considerable weight unless good cause is shown to the contrary.” 
Crawford, 363 F.3d at 1159
(citation omitted). Good cause exists under these circumstances: (1)

the treating physician’s opinion was not bolstered by the evidence; (2) evidence

supported a contrary finding; or (3) the treating physician’s opinion was

conclusory or inconsistent with the doctor’s own medical records. Phillips v.

Barnhart, 
357 F.3d 1232
, 1240-41 (11th Cir. 2004). The ALJ clearly must



                                          4
articulate reasons for giving less weight to the treating physician’s opinion. 
Id. at 1241.
        In this case, the record shows good cause not to give substantial weight to

Dr. Hakima’s opinion. Dr. Hakima’s assessment went against the balance of

objective medical evidence and was based mainly on Pettaway’s subjective

complaints. Other medical evidence in the record documented predominantly

normal physical examinations with only mild limitations. Dr. Hakima also was not

a specialist; and the ALJ chose to give more credit to specialists’ assessments that

Pettaway was limited to light work. Therefore, substantial evidence supports the

ALJ’s evaluation of Dr. Hakima’s opinion.

        We turn to Pettaway’s argument that the ALJ erred in determining that she

could perform a significant number of jobs in the national economy. When a

claimant proves that she no longer can perform her past relevant work, the burden

shifts to the Commissioner to show that, in the light of the claimant’s residual

functional capacity (“RFC”), age, education, and work experience, “there is other

work available in significant numbers in the national economy that the claimant is

able to perform.” Jones v. Apfel, 
190 F.3d 1224
, 1228 (11th Cir. 1999). “The ALJ

must articulate specific jobs that the claimant is able to perform, and this finding

must be supported by substantial evidence, not mere intuition or conjecture.”



                                           5

Wilson, 284 F.3d at 1227
.

      The “preferred method” of demonstrating that a claimant can perform other

jobs is through the testimony of a vocational expert (“VE”). 
Id. For a
VE’s

testimony to constitute substantial evidence, the ALJ must pose a hypothetical

question that comprises all of the claimant’s impairments. See Vega v. Comm’r of

Soc. Sec., 
265 F.3d 1214
, 1220 (11th Cir. 2001). But the ALJ is not required to

include in the question claims of impairment that he has found to be unsupported.

Crawford, 363 F.3d at 1161
.

      Here, based on the VE’s testimony, the ALJ determined that Pettaway was

unable to perform her past relevant work, but had the RFC to perform other light or

sedentary unskilled work existing in significant numbers in the national economy,

including positions as a bench assembler, mail clerk, light-duty housekeeper, and

credit card solicitor. The ALJ posed a hypothetical question about the work

abilities of someone with the same educational and vocational history as Pettaway

and that encompassed the limitations described by several of the doctors who

treated and evaluated Pettaway: someone who could perform light work with mild

physical limitations in climbing, kneeling, and crawling, and moderate mental

limitations in concentration, persistence, pace, and the ability to understand,

remember, and carry out detailed instructions. The VE’s opinion was not based on



                                           6
the limitations described by Dr. Hakima; but, as noted, the ALJ permissibly

discounted Dr. Hakima’s assessment of Pettaway’s limitations. Because the

hypothetical posed included all the credible physical and mental limitations that the

ALJ determined were supported by the record, the VE’s testimony that Pettaway

could perform a significant number of light, unskilled jobs in the national economy

constitutes substantial evidence to support the ALJ’s determination. See 
Vega, 265 F.3d at 1220
.

      AFFIRMED.




                                          7

Source:  CourtListener

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