Vickie Lemons v. Commissioner, Social Security Administration

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10198
Non-Argument Calendar
____________________
VICKIE LEMONS,
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-01267-RDP
____________________
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2 Opinion of the Court 22-10198
Before GRANT, L UCK , and LAGOA , Circuit Judges.
PER CURIAM:
Vickie Lemons appeals the district court’s order affirming
the Commissioner of the Social Security Administration’s denial of
her application for disability benefits. After a thorough review of
the briefing and the relevant records, we affirm.
I.
Lemons alleges she became disabled on May 1, 2016. She
applied for a period of disability and disability insurance benefits
one year later, in May 2017. Lemons stated that her medical
conditions were anxiety, depression, degenerative bone disease,
and fibromyalgia. After a hearing, the administrative law judge
(ALJ) issued an unfavorable decision dated August 12, 2019.
The ALJ considered several sources of evidence, including
claim documents, work history, and functional reports from
Lemons and a friend, Jean Langley. These submissions stated that
Lemons worked part-time at a fast-food restaurant, cared for her
three grandchildren, and drove, cooked, and cleaned. In doing
these tasks, however, she had pain in her back and had trouble
moving, concentrating, and getting along with others. She needed
pain medication and frequent breaks.
The ALJ also received medical evidence Lemons submitted
from several visits with her treating physician, Dr. Tummala. Dr.
Tummala’s records reflect that Lemons had normal ambulation,
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22-10198 Opinion of the Court 3
gait, and strength at all examinations, but that during three visits
she had a limited range of motion in her right shoulder. In March
2019, Dr. Tummala filled out a physical capacities form, concluding
that Lemons could sit upright for only two hours at a time, stand
for one, would need to be off-task half of every workday, and
would miss twelve workdays every thirty.
The ALJ also received medical records and opinions from
several other doctors about Lemons’s condition. Evidence varied.
For example, a January 2019 physical capacities form by physician
assistant Elizabeth Giles showed far more sitting, standing, and
working capacity than Dr. Tummala’s report. As for Lemons’s
shoulder, records showed normal strength in September 2017 but
weak strength in October 2018. After a 2018 surgery, she attended
physical therapy, and the therapist noted good progress for the
shoulder. The ALJ also received various medical test reports,
including several MRIs showing mild broad-based bulging in
Lemons’s back but no herniation.
Finally, the ALJ also heard testimony from, and posed
questions to, a vocational expert. In one question, the ALJ asked
about the capability of a hypothetical individual who, among other
limitations, was limited to light exertion, alternating sitting and
standing every twenty to thirty minutes, and had no ability to leave
the workstation. The vocational expert’s response was that this
individual could not perform Lemons’s prior work, but could
perform other work in the national economy, including as a booth
cashier, office helper, or bench assembler.
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4 Opinion of the Court 22-10198
Following the five-step process outlined by Social Security
regulations, the ALJ concluded that Lemons was not disabled from
May 1, 2016 through August 2019.
See Winschel v. Comm'r of Soc.
Sec., 631 F.3d 1176, 1178 (11th Cir. 2011). For step one, the ALJ
decided that Lemons had not engaged in substantial gainful activity
since May 1, 2016—her alleged disability onset date—which made
her eligible for disability payments from that date. At steps two
and three, the ALJ concluded that Lemons was not automatically
disabled by her impairments: although she had degenerative disc
disease and osteoporosis, these did not meet or equal the severity
of the impairments listed in 20 C.F.R. § 404, Subpart P, Appendix
1. At steps four and five, the ALJ determined that Lemons had a
light work residual capacity with limits; she could not perform her
past work, but could perform jobs available in the national
economy.
Lemons disagreed. After the Appeals Council denied
additional review, she sued in district court. The district court
affirmed the Commissioner’s decision.
II.
We review the ALJ’s application of legal principles de novo,
but we are limited to assessing whether the resulting decision “is
supported by substantial evidence.”
Henry v. Comm’r of Soc. Sec.,
802 F.3d 1264, 1266–67 (11th Cir. 2015); 42 U.S.C. § 405(g).
Substantial evidence is “more than a scintilla, but less than a
preponderance.”
Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir.
1990).
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22-10198 Opinion of the Court 5
III.
Lemons challenges four aspects of the ALJ’s decision.
First, she argues that the ALJ gave improper weight to the
opinions of her treating physician, Dr. Tummala. Her argument
relies in part on precedents from this Court applying the now
defunct treating-physician rule.
See, e.g.,
Phillips v. Barnhart, 357
F.3d 1232 (11th Cir. 2003). Our recent precedent makes clear,
however, that the Commissioner eliminated the treating physician
rule for claims filed after March 27, 2017.
Harner v. Soc. Sec.
Admin., Comm'r, 38 F.4th 892, 897 (11th Cir. 2022). Instead of
requiring special deference to a treating physician, the new
regulation provides several factors for determining the weight to
give a claimant’s medical opinions, including their supportability,
consistency with other evidence, and other relevant information.
See id.; 20 C.F.R. § 404.1520c(a).
Here, the ALJ applied the correct legal standard. Lemons
filed her claim in May 2017, and so the new regulations apply.
Consistent with these new regulations, the ALJ examined the
supportability of Dr. Tummala’s opinions and those of the other
doctors by scrutinizing their conclusions given the objective
medical evidence. Moreover, the ALJ analyzed the consistency of
the doctors’ opinions with each other, as well as with the medical
records. The ALJ also reasoned that Dr. Tummala’s opinions
about Lemons’s limitations extended earlier than could be
supported by his records. This detailed analysis amply complies
with 20 C.F.R. § 404.1520c(a).
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6 Opinion of the Court 22-10198
Lemons insists that Dr. Tummala’s opinions are supported
by evidence in the record. But because her brief fails to describe
this evidence with specificity or connect the decisions she cites to a
conclusion about substantiality, she forfeits this claim.
See Harner,
38 F.4th at 899
. Even if she had not, the ALJ supported his
discounting of Dr. Tummala’s opinions, pointing to specific
reasons. And under the substantial evidence standard, an ALJ need
not refer to every piece of contrary evidence in its decision.
See
Mitchell v. Comm'r, Soc. Sec. Admin., 771 F.3d 780, 782 (11th Cir.
2014).
Second, Lemons argues that the ALJ erred by stating that her
daily activities diminish the persuasiveness of her disability
allegations. To begin, we note that the ALJ appropriately
patterned his analysis of Lemons’s subjective testimony on the
three-part pain standard of this Circuit, which Lemons does not
appear to dispute.
See Holt v. Sullivan, 921 F.2d 1221, 1222–23
(11th Cir. 1991). Instead, the question is whether substantial
evidence supports the ALJ’s evaluation, mindful that an ALJ must
“articulate explicit and adequate reasons.”
Dyer v. Barnhart, 395
F.3d 1206, 1210 (11th Cir. 2005) (quotation omitted).
Here, the ALJ’s analysis holds up. An ALJ may discredit a
claimant’s subjective complaints based, at least in part, on daily
activities.
See Dyer, 395 F.3d at 1210–12. That is what happened
here. The ALJ did not rely “heavily” on Lemons’s activities, as she
claims, but discredited her complaints based on the conservative
nature of her treatment and the objective medical evidence
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22-10198 Opinion of the Court 7
showing improvement of her condition.
See 20 C.F.R. §
404.1529(c)(3)–(4). We cannot conclude that the ALJ erred.
Third, Lemons advanced a two-part claim related to the
ALJ’s determination that she could perform limited light work:
(1) the ALJ erred by violating Social Security Ruling 96-8p and
(2) this finding was not supported by substantial evidence.
As distinct from her second argument, Lemons’s first is
essentially procedural. Under SSR 96-8p, an ALJ must first identify
an individual’s functional limitations, next assess work-related
abilities, and only then express them in terms of exertional levels.
See 61 Fed. Reg. 34474-0 (July 2, 1996). Along the way, an ALJ must
include a narrative discussion connecting relevant evidence to its
conclusions for each step.
Id. at 34478.
The ALJ’s decision here is not a model of step-by-step
analysis. Still, it complies with SSR 96-8p. The analysis of residual
functional capacity first acknowledged that it was pointed at
Lemons’s “ability to do work-related activities.” Throughout the
analysis, the ALJ broke down Lemons’s functional limitations
anatomically, separately considering her right shoulder, back, hips,
and mental concentration. He noted Lemons’s statements about
her difficulty lifting, bending, standing, walking, sitting,
concentrating, and handling stress—all work-related limitations.
In the penultimate paragraph of the section on residual functional
capacity, the ALJ included an assessment of Lemons’s “ambulation,
gait, strength, movement of all extremities, and cardiovascular and
respiratory systems.” And in the summary heading, the ALJ
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8 Opinion of the Court 22-10198
attached the label of “light work” and included additional
limitations tailored to Lemons’s abilities. Altogether, the ALJ met
the procedural requirements of SSR 96-8p.
Lemons’s substantive argument—that the residual
functional capacity finding was not supported by substantial
evidence—fails for reasons we have already discussed. Lemons
failed to develop this claim in her counseled brief and presents
nothing to counter the ALJ’s extensive evidentiary analysis.
Fourth and finally, Lemons argues that the ALJ erred by
considering the vocational expert testimony as substantial evidence
and neglecting to question the vocational expert about her pain. In
general, an ALJ is “not required to include findings in the
hypothetical that the ALJ had properly rejected as unsupported.”
Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1161 (11th Cir.
2004). That means the ALJ was not required to include a pain
impairment nor any alternate residual functional capacities in his
hypothetical questions to the vocational expert—he had resolved
these issues earlier in a well-supported analysis. As we have held
above, all the ALJ’s analytical steps were supported by substantial
evidence, and it follows that his overall disability determination
was as well.
* * *
Because the ALJ’s decision applied the correct legal
standards and was supported by substantial evidence, the order of
the district court is AFFIRMED.
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