Filed: Jul. 27, 2015
Latest Update: Mar. 02, 2020
Summary: Case: 14-14908 Date Filed: 07/27/2015 Page: 1 of 18 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 14-14908 Non-Argument Calendar _ D.C. Docket No. 5:13-cv-00344-CHW VIRGINIA HUBBARD, Plaintiff-Appellant, versus COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee. _ Appeal from the United States District Court for the Middle District of Georgia _ (July 27, 2015) Before WILSON, ROSENBAUM, and JULIE CARNES, Circuit Judges. PER CURIAM: Virginia Hubbard, procee
Summary: Case: 14-14908 Date Filed: 07/27/2015 Page: 1 of 18 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 14-14908 Non-Argument Calendar _ D.C. Docket No. 5:13-cv-00344-CHW VIRGINIA HUBBARD, Plaintiff-Appellant, versus COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee. _ Appeal from the United States District Court for the Middle District of Georgia _ (July 27, 2015) Before WILSON, ROSENBAUM, and JULIE CARNES, Circuit Judges. PER CURIAM: Virginia Hubbard, proceed..
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Case: 14-14908 Date Filed: 07/27/2015 Page: 1 of 18
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-14908
Non-Argument Calendar
________________________
D.C. Docket No. 5:13-cv-00344-CHW
VIRGINIA HUBBARD,
Plaintiff-Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
________________________
(July 27, 2015)
Before WILSON, ROSENBAUM, and JULIE CARNES, Circuit Judges.
PER CURIAM:
Virginia Hubbard, proceeding pro se, appeals the district court’s order
affirming the Social Security Commissioner’s (“Commissioner”) denial of
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Hubbard’s application for supplemental security income (“SSI”) and disability
insurance benefits (“DIB”). On appeal, Hubbard argues that the administrative law
judge (“ALJ”) failed to adequately consider her impairments in combination,
erroneously found that she was not disabled, and improperly considered her past
drug use. She also asserts that her condition continues to worsen. After careful
review, we affirm.
I.
Hubbard applied for a period of disability, DIB, and SSI in July 2010,
alleging that she became disabled on April 10, 2010. Hubbard alleged that she was
disabled due to third-degree burns, stroke, high blood pressure, degenerative disc
disease of the cervical spine, a pituitary tumor, Sjogren’s syndrome, rheumatoid
arthritis, mitral valve prolapse, and asthma. After Hubbard’s applications were
denied initially and upon reconsideration, Hubbard requested a hearing by an ALJ.
A. Hearing Testimony
At the disability hearing, Hubbard represented herself. The ALJ informed
Hubbard of her right to have a representative and confirmed that Hubbard wished
to proceed without a representative. When questioned by the ALJ, Hubbard
testified that she was 47 years old, had an undergraduate degree in psychology, and
had started but did not finish a master’s program in criminology. Hubbard
explained that she was not currently working and that she lived with her minor
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daughter. According to Hubbard, she had attempted to work the previous year,
2011, as a hair braider but was unable to do so because her hands would “lock up”
due to rheumatoid arthritis. Hubbard wore a brace on her arm at the hearing and
explained that she did so because she had raked the yard the previous day, and the
activity had caused her arm to hurt.
Prior to her burn injury in 2010, Hubbard testified, she was self-employed as
a hair braider for several years. Before that, Hubbard worked a number of other
jobs, including customer service and sales positions. She also worked as a
phlebotomist and as a medical clerk in a hospital. Hubbard stated that she had
problems with confusion, severe headaches, vision issues, nosebleeds, and
seizures, which she believed were caused by a tumor on her pituitary gland. She
also had back problems caused by a fall, for which she had surgery. According to
Hubbard, she felt better after the surgery but still could not get up from the floor
without assistance, could not bend frequently, and had trouble lifting things.
Hubbard’s daughter testified that Hubbard had trouble dressing and cooking for
herself, and she reported that Hubbard also had memory problems.
Hubbard testified that she had used cocaine in the past to self-medicate but
asserted that she was not an addict and that it only made her problems worse. The
ALJ noted that the emergency-room records indicated that Hubbard had been
smoking crack cocaine when she sustained her burn injuries, but Hubbard insisted
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that she was not using cocaine on that occasion and that the doctor misconstrued
what she had said. During the hearing, Hubbard stated that the burns had occurred
when she lit a cigarette after pouring rubbing alcohol on herself to alleviate flea
bites. Hubbard also admitted that she had used cocaine once earlier in 2012.
In addition, Hubbard complained that she had behavioral problems and
became irritated easily. Hubbard further testified that she had suffered a stroke,
sometimes had problems with drooling, and had headaches due to her tumor. She
also expressed fear that she was going to die because of the tumor.
A vocational expert testified that an individual of the same age, education,
and vocational background as Hubbard who was capable of work at the medium
exertional level would be capable of performing Hubbard’s past work as a hair
braider, billing clerk, disc jockey, customer-service representative, phlebotomist,
medical clerk, and sales representative, all of which involved sedentary to light
work.
B. Medical Records
We review some of the pertinent medical records presented to the ALJ.
1. Brain and Neurological Issues
On May 8, 2010, Hubbard went to the Medical Center of Central Georgia
(“MCCG”) Emergency Center complaining of slurred speech, right-arm pain and
weakness, headache, and blurred vision. The doctor conducted a stroke evaluation
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and determined that Hubbard had suffered a transient ischemic attack. 1 The doctor
suspected polysubstance abuse as a cause. Doctors performed a computerized
tomography (“CT”) scan of Hubbard’s brain, which appeared normal. Hubbard
underwent magnetic resonance imaging (“MRI”) of her brain at a follow-up visit
on August 24, 2010. The MRI revealed some abnormalities in Hubbard’s white
matter, as well as a small lesion on her pituitary gland.
On September 7, 2010, Hubbard presented at the MCCG complaining of a
chronic headache, and she was referred to a neurologist based on her previous MRI
results. On September 15, Hubbard had a CT scan of her pituitary area. Based on
the CT scan, the neurologist noted pituitary abnormalities that could be consistent
with such a lesion, but could not confirm its presence. Another CT scan on
October 4, 2010, was normal. An MRI the same day revealed some abnormalities
in Hubbard’s white matter, which were “common and nonspecific,” as well as
“shortening along the posterior pituitary,” which was “of doubtful clinical
significance.”
In October 2010 Hubbard suffered an episode during which she felt very hot,
passed out while walking to her car, and was unconscious for approximately ten
minutes. No cause for this episode is reflected in the medical records.
1
A transient ischemic attack, or “mini-stroke,” is an acute episode of temporary
neurological dysfunction that occurs when blood flow to a part of the brain stops for a brief time.
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In February 2011, another CT scan of Hubbard’s brain was taken after she
developed a severe headache following a spinal tap. There were no changes from
the CT scan in May 2010. Additional MRI brain scans in March 2011 showed a
moderate degree of white-matter disease, which was unusual for a person of
Hubbard’s age. Compared to her August 2010 MRI, the white-matter lesions had
increased only minimally, and her pituitary lesion had not changed significantly.
On March 23, 2011, Hubbard underwent CT angiography (“CTA”) of her head and
neck, which revealed no evidence of an acute intracranial process.
On July 29, 2011, Hubbard went to the Emergency Center after suffering a
syncopal (fainting) episode in a restaurant. In treatment notes, the treating
physician included polysubstance usage (marijuana and cocaine) among the
possible causes. A CT scan was also performed on that date, and it revealed no
change from Hubbard’s February 2011 CT scan.
On October 8, 2012, Hubbard went to the Emergency Center complaining of
a worsening headache, which she attributed to a pituitary tumor. Hubbard was
given pain medication, which relieved her headache, and she was released.
2. Degenerative Disc Disease
On January 27, 2010, Hubbard underwent an MRI of the cervical spine,
which revealed mild, multilevel degenerative disc disease of her cervical spine.
On August 22, 2011, Hubbard presented at the MCCG with lumbar pain that had
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lasted for six days and had also radiated down her leg. Imaging revealed that
Hubbard suffered from mild degenerative changes of the lumbar spine. In
December 2011, Hubbard underwent an MRI of her lumbar spine, which showed
mild bulging discs at the L3-L4, L4-L5, and L5-S1 levels, as well as a possible
cyst at the S1 nerve rootlet. In April 2012, Hubbard had a lumbar CT scan, which
found multilevel degenerative changes of the lumbar spine that were most
prominent at the L3-L4, L4-L5, and L5-S1 levels. Hubbard elected to proceed
with operative intervention for her back pain, and, on July 27, 2012, underwent an
L5-S1 hemilaminectomy and discectomy. Treatment notes reflect that she
tolerated the procedure well.
3. Burn Injuries
On April 10, 2010, Hubbard presented to the Emergency Center with
significant burn injuries. The treatment notes reflect that Hubbard poured rubbing
alcohol over her body because she had developed a sensation of insects crawling
on her skin as a result of smoking crack cocaine. She then attempted to light a
cigarette, and, in doing so, lit herself on fire. Hubbard suffered second- and third-
degree burns over 7% of her body. While in the hospital, Hubbard underwent a
psychological consultation. The psychologist noted that Hubbard was anxious and
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frustrated and diagnosed her with an adjustment reaction 2 with anxiety and
frustration secondary to burn injuries.
Hubbard was transferred to a burn center for treatment. From April to July
2010, Hubbard had several follow-up visits for her burn wounds, and by July 19,
Hubbard’s wounds had fully healed, though she had developed a keloid scar over
part of the wound.
4. Chest Pain
In November 2009, January 2010, and August 2010, Hubbard went to the
MCCG complaining of chest pain, dizziness, and shortness of breath. Subsequent
testing generally found that her chest pain was not cardiac in nature. In January
2010, the treating physician suggested that the source of Hubbard’s chest pain was
inflammation of the cartilage that connects a rib to the breastbone. In August
2010, Hubbard was prescribed medication for a possible coronary spasm, though
the doctor’s notes indicate that such a spasm was “questionable.” In October 2010,
Hubbard underwent a transesophageal echocardiogram test, which revealed no
cardiac source of emboli and trace to mild mitral and aortic valve regurgitation.
2
A psychological adjustment reaction or disorder is the development of emotional or
behavioral symptoms in response to a specific stressor.
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5. Asthma
Hubbard’s medical records also revealed a history of bronchial asthma, for
which she was on medication. At a January 27, 2010 doctor’s visit, Hubbard was
doing “quite well,” and her condition was stable.
C. Other Evidence
In October 2010, Dr. Robert Williams, a medical consultant, performed a
physical residual functional assessment of Hubbard, based on his review of the
evidence in Hubbard’s file at that time. Dr. Williams opined that Hubbard’s
allegations of stroke and degenerative disc disease were not supported by evidence
then in the record but that her allegations regarding her burn injury and high blood
pressure were credible. He further opined that Hubbard had no significant
limitations to her daily activities and was capable of performing medium work.
Dr. Michelle Wierson, a psychological consultant, conducted a psychiatric
assessment of Hubbard in October 2010. Dr. Wierson opined that Hubbard
suffered from an adjustment reaction with anxiety, as well as cocaine abuse or
dependence. She further concluded that these impairments caused only a mild
restriction of Hubbard’s activities of daily living.
D. ALJ’s Adverse Decision
Following the hearing, the ALJ issued a decision finding that Hubbard was
not disabled within the meaning of the Social Security Act. In the November 2012
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decision, the ALJ concluded that Hubbard had the following severe impairments:
status-post burn injury, bulging discs at L3-L4 and L4-L5, degenerative disc
disease of the cervical spine, and status-post laminectomy and discectomy at L5-
S1. The ALJ determined that Hubbard’s severe impairments, considered singly or
in combination, did not meet or equal a listed impairment in the disability
regulations. In addition, the ALJ found that Hubbard had the residual functional
capacity to perform medium work, with the exception that she should never climb
ladders, ropes, or scaffolding.
After summarizing Hubbard’s medical records and testimony about her
symptoms, the ALJ concluded that, although Hubbard’s impairments could
reasonably be expected to cause the alleged symptoms, Hubbard’s statements
concerning the intensity, persistence, and limiting effects of those symptoms were
not wholly credible. The ALJ largely found that Hubbard’s testimony was not
supported by the medical evidence, which, according to the ALJ, showed the
following: Hubbard had not suffered seizures or a stroke; her syncopal episodes
may have been caused by drugs, rather than heart problems; the lesion on
Hubbard’s pituitary gland was not a tumor, and no medical professional had opined
that the lesion caused any limitations; and there was no medical evidence that
Hubbard had any difficulties or permanent limitations following her back surgery.
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Moreover, the ALJ explained that Hubbard’s overall credibility was undermined
for two additional reasons:
First, the claimant alleges that she does not have enough
money to seek medical care, but she is able to afford
crack cocaine, cigarettes, and marijuana. It is
discrediting that the claimant would chose [sic] to spend
whatever extra money she does have on habits that are
both illegal and cause her to have problems and feel bad,
as she described at the emergency room presentation for
her second syncopal episode. Second, the claimant
testified at the hearing that she continued to perform
work, specifically braiding hair, after the alleged onset of
disability. . . . Although the claimant did not apparently
work at substantial gainful activity levels, the work
activity itself indicates that she is not as limited as she
has alleged.
Finally, the ALJ gave great weight to Dr. Williams’s and Dr. Weirson’s
assessments of Hubbard’s physical and mental impairments and also credited the
testimony of the vocational expert. Overall, the ALJ determined that Hubbard had
the residual functional capacity to perform her past relevant work as a hair braider,
billing clerk, customer service representative, phlebotomist, medical clerk, or sales
representative in advertising, all of which involved sedentary to light work.
Accordingly, the ALJ concluded that Hubbard was not disabled for purposes of
receiving disability benefits.
E. Appeals Council Review and District Court Affirmance
Hubbard requested review by the Appeals Council, and she submitted
additional medical evidence from 2013. The Appeals Council denied review,
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stating that the medical records were for a later period of time than that covered by
the ALJ’s decision, a period that ended November 30, 2012. Hubbard then filed a
pro se complaint for review in federal court. She consented to proceed before a
magistrate judge, see 28 U.S.C. § 636(c)(1), and submitted numerous medical
records, some of which had been submitted to the ALJ or Appeals Council and
others that were new and post-dated the ALJ’s decision. The magistrate judge
affirmed the Commissioner’s final decision, and Hubbard now brings this appeal.
II.
In Social Security appeals, we review whether the Commissioner’s decision
is supported by substantial evidence and based on proper legal standards. Winschel
v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011). “Substantial
evidence is more than a scintilla and is such relevant evidence as a reasonable
person would accept as adequate to support a conclusion.”
Id. (internal quotation
marks omitted). We must affirm the agency’s decision if it is supported by
substantial evidence, even if the evidence preponderates against it. Dyer v.
Barnhart,
395 F.3d 1206, 1210 (11th Cir. 2005). Our deferential review precludes
us from deciding the facts anew, making credibility determinations, or re-weighing
the evidence.
Winschel, 631 F.3d at 1178. “[C]redibility determinations are the
province of the ALJ, and we will not disturb a clearly articulated credibility finding
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supported by substantial evidence.” Mitchell v. Comm’r of Soc. Sec., 771 F.3d
780, 782 (11th Cir. 2014) (citations omitted).
III.
The individual seeking Social Security disability benefits bears the burden of
proving that she is disabled. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir.
2005). The applicable regulations provide a five-step, sequential evaluation
process to determine whether a claimant is disabled.
Winschel, 631 F.3d at 1178.
As part of this process, the ALJ must analyze whether the claimant: (1) is
currently engaged in substantial gainful activity; (2) has a severe, medically
determinable impairment or combination of impairments; (3) has an impairment,
or combination thereof, that meets or equals the severity of a specified impairment
in the Listing of Impairments; (4) can perform any of her past relevant work, in
view of her residual functional capacity; and (5) can make an adjustment to other
work, in view of her residual functional capacity, age, education, and work
experience. See id.; 20 C.F.R. § 404.1520(a)(4). In determining the claimant’s
residual functional capacity, the ALJ must consider all of the alleged impairments,
both severe and non-severe. 20 C.F.R. § 404.1545(e).
A.
Here, substantial evidence supports the ALJ’s determination that, despite her
combination of impairments, Hubbard had the residual functional capacity to
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perform her past relevant work. First, the record demonstrates that the ALJ
properly considered all of Hubbard’s symptoms and alleged impairments, both
severe and non-severe, in determining her residual functional capacity. See 20
C.F.R. § 404.1545(e). At the third step, the ALJ stated that no medical expert had
“opined the claimant’s impairments, considered singly or in combination, are
equivalent in severity to the criteria of any listed impairment,” nor did the evidence
show a contrary conclusion. See Jones v. Dep’t of Health & Human Servs., 941
F.2d 1529, 1533 (11th Cir. 1991) (stating that the ALJ’s statement that she
considered the combination of impairments is adequate to show such
consideration). Further, the ALJ stated that she considered “all symptoms” in
assessing Hubbard’s residual functional capacity at the fourth step, and she then
reviewed the medical evidence and hearing testimony regarding the alleged
impairments, including the non-severe impairments. In sum, the ALJ’s decision
shows adequate consideration of the combined effect of Hubbard’s impairments.
See id.; see also Wilson v. Barnhart,
284 F.3d 1219, 1224-25 (11th Cir. 2002).
Furthermore, the medical evidence supports the ALJ’s findings regarding
Hubbard’s alleged symptoms and impairments. Despite Hubbard’s claims that she
had suffered a stroke and had a tumor on her pituitary gland, the objective medical
evidence showed that Hubbard had suffered a transient ischemic attack and had a
pituitary lesion that did not reflect any “overt tumor problem.” No doubt these are
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still serious matters, but the medical records did not indicate any functional
limitations related to those conditions. Additionally, Hubbard’s CT scans
consistently returned normal results, and doctors suspected that polysubstance
abuse may have been a contributing factor with regard to Hubbard’s transient
ischemic attack and at least one of her syncopal episodes.
With regard to her burn wounds, Hubbard’s medical records showed that the
burns had healed well and fully, and they did not indicate any lasting limitations as
a result of her injury. Moreover, although Hubbard suffered from anxiety
secondary to her burn wounds, no significant mental-health limitations were noted
by the psychologist who evaluated Hubbard during her hospital stay, and Dr.
Wierson’s report indicated that Hubbard’s mental impairments were not severe.
Similarly, Hubbard tolerated her spinal surgery well, and there was no indication
from the records that she suffered any lasting complications or limitations. The
medical records also showed that Hubbard’s asthma was well controlled with
medication, that her complaints of chest pain were not cardiac in nature, and that
she showed only mild mitral valve regurgitation. Finally, Dr. Williams’s and Dr.
Wierson’s assessments of Hubbard’s physical and mental functioning indicated
that Hubbard suffered little or no limitation in daily activities based on her alleged
impairments. Overall, substantial evidence support the ALJ’s residual-functional-
capacity assessment.
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For similar reasons, substantial evidence also supports the ALJ’s finding that
Hubbard’s subjective statements regarding the intensity, persistence, and limiting
effects of her symptoms were not wholly credible. First, to the extent that Hubbard
argues that her history of drug use was irrelevant to her disability claims, her
argument is unavailing, as the medical records indicate that substance abuse
contributed to or was a suspected cause of several of her medical issues, including
her burn wounds, transient ischemic attack, and July 2011 syncopal episode. In
addition, the ALJ’s determination that Hubbard’s subjective testimony lacked
credibility was also based on the inconsistencies between the medical records and
Hubbard’s allegations, which we have reviewed above, and the fact that Hubbard
had performed at least some work activity after the alleged onset of disability.
Consequently, we find that the ALJ’s credibility determination was clearly
articulated and supported by substantial evidence. Mitchell, 771 F.3d at 782.
In short, our review of the record shows that the ALJ reviewed all of the
evidence before her, accorded more weight to some evidence, such as the medical
records and the consulting physicians’ assessments, and less weight to other
evidence, such as Hubbard’s subjective testimony, and adequately explained her
reasons for doing do. We therefore conclude that substantial record evidence
supports the ALJ’s conclusion that Hubbard had the residual functional capacity to
perform medium work, which, in view of the vocational expert’s testimony,
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allowed Hubbard to perform her past relevant work. See Winschel, 631 F.3d at
1178.
B.
Hubbard also submits numerous medical records along with her brief on
appeal to this Court, and she asserts that her condition is worsening. It appears that
some of these records were submitted to the ALJ, some were presented to the
Appeals Council, some were presented anew before the district court, and some are
presented for the first time on appeal. After review of these materials, we conclude
that they do not show that Hubbard is entitled to relief.
“We review the decision of the ALJ as to whether the claimant was entitled
to benefits during a specific period of time, which period was necessarily prior to
the date of the ALJ’s decision.” Wilson v. Apfel, 179 F.3d 1276, 1279 (11th Cir.
1999). The ALJ’s decision in this case was rendered on November 30, 2012.
Therefore, the medical records from 2013 and 2014, purportedly showing a
worsening of Hubbard’s conditions, are not relevant to the issues in this appeal,3
see
id., even if they may be relevant should Hubbard file another application for
disability benefits based on the period after the conclusion of the agency
proceedings in this case, as indicated in the Appeals Council’s decision.
3
Nor are records submitted for the first time on appeal properly before this Court. See
Wilson, 179 F.3d at 1278-79 (noting that our review is limited to the certified record and that
evidence attached as an appendix to a brief is not properly before this Court).
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Regarding the medical records within the relevant period, Hubbard has not
shown that these records are “new and material evidence.” See 20 C.F.R.
§ 404.970(b); see also Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1267
(11th Cir. 2007) (explaining that a district court may remand a case under sentence
six of 42 U.S.C. § 405(g) “when new material evidence that was not incorporated
into the administrative record for good cause comes to the attention of the district
court”). Here, the records relating to the period on or before the date of the ALJ’s
decision in November 2012 either were submitted to the ALJ and therefore were
not new, or they were largely consistent with the other medical evidence, so there
is no “reasonable possibility that the new evidence would change the
administrative outcome.” Hyde v. Bowen,
823 F.2d 456, 459 (11th Cir. 1987).
IV.
Because substantial evidence supports the ALJ’s determination that Hubbard
was not disabled within the meaning of the Social Security Act for the period of
time under consideration, we affirm the Commissioner’s denial of disability
benefits.
AFFIRMED. 4
4
Hubbard’s motion to expedite our consideration of this appeal is DENIED as moot.
18
