Barry A. Popock v. Michael J. Astrue

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MAR 31, 2010
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 09-13417
Non-Argument Calendar
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D. C. Docket No. 07-61796-CV-WPD
BARRY A. POPOCK,
Plaintiff-Appellant,
versus
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Florida
_________________________
(March 31, 2010)
Before CARNES, BARKETT and ANDERSON, Circuit Judges.
PER CURIAM:
Barry A. Popock appeals the district court’s judgment affirming the

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Commissioner’s denial of his application for disability insurance benefits. The
ALJ found that Popock had these “severe impairments: Crohn’s disease, lumbar
disk disease, coronary heart disease, status post vessel bypass, plantar fasciitis,
status post shoulder surgery, polyarthralgia, status post inguinal hernia,
hypertension, and hyperlipidemia.” The ALJ also found, however, that the residual
functional capacity assessments of Popock’s treating physicians were not
consistent with the medical evidence in the record, and he credited the assessments
made by state agency medical consultants instead. Based on that, the ALJ1
concluded that Popock could perform light work, including his past work as a
general manager or as a vice president of a textile company, which he had
performed for twenty-one years.
The Appeals Council denied Popock’s request for review, making ALJ’s
decision the final decision of the Commissioner. See Lewis v. Barnhart, 285 F.3d
1329, 1330 (11th Cir. 2002). Popock sought review of that decision in district
court. After the parties filed cross-motions for summary judgment, the magistrate
judge issued a report and recommendation concluding that substantial evidence
supported the ALJ’s determination that Popock is not disabled and that he has the
“‘Residual functional capacity’ is a determination of a claimant’s remaining physical1
abilities to perform work.” Walker v. Bowen, 826 F.2d 996, 1000 (11th Cir. 1987).
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residual functional capacity to perform a full range of light work. Neither party
filed objections, and the district court adopted the magistrate judge’s report and
recommendation, granted the Commissioner’s motion for summary judgment, and
affirmed the Commissioner’s decision. This is Popock’s appeal.
The Commissioner contends that this appeal should be dismissed because
Popock failed to object to the magistrate judge’s report and recommendation.
When there are no objections to a magistrate judge’s report and recommendation,
we review the findings of fact only for plain error or manifest injustice, but we still
review de novo the report’s legal conclusions. See United States v. Roberts, 858
F.2d 698, 701 (11th Cir.1988); United States v. Warren, 687 F.2d 347, 348 (11th
Cir. 1982). The magistrate judge and the district court reviewed the ALJ’s
decision to determine if it was supported by substantial evidence. That review
resulted in a legal conclusion instead of findings of fact, so despite Popock’s
failure to file objections, we review the ALJ’s decision under the same standard.
See Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005) (“Our standard of
review is, as it is for the district court, whether the ALJ’s conclusion as a whole
was supported by substantial evidence in the record.”).
Popock contends that substantial evidence does not support the ALJ’s
determination that Popock is not disabled and that he has the residual functional
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capacity to perform the “light work” that he used to do. He argues that only the
state agency’s non-examining medical consultants concluded that he could perform
light work, which is not enough to rebut the contrary opinions of his treating
physicians.
In determining whether Popock was disabled based on impairments that met
or equaled a listed impairment, the ALJ had good cause to determine that the
opinions of Dr. Gieseke, one of Popock’s examining and treating physicians,
should be given less weight than the assessment of Dr. Griscom, the internist the
ALJ appointed to evaluate Popock’s medical records. Dr. Gieseke had treated2
Popock infrequently, his assessment was inconsistent with his limited treatment
notes, and medical evidence in the record supported a contrary finding. See
Phillips v. Barnhart, 357 F.3d 1232, 1240–41 (11th Cir. 2004). The ALJ also did
not err when he discounted the opinions of Dr. Feiss, another treating physician.
The medical evidence did not support Dr. Feiss’ residual functional capacity
assessment, which was even more restrictive than Dr. Gieseke’s. See id. (holding
that good cause exists to accord less than substantial weight to a treating
At the first hearing on this matter, the ALJ observed that Popock had “an extremely2
good work record” and that there were “no questions [Popock has] got multiple problems.”
Because Popock had “so many medical issues,” the ALJ sent his medical records to an internist
to evaluate whether Popock was disabled, and there was a second hearing after Dr. Griscom
completed that assessment.
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physician’s opinion when the evidence does not support the opinion or supports a
contrary finding).
Dr. Griscom’s assessment stated that Popock was a “53 year old gentleman
[who] has done well overall despite contending with some difficult and chronic
problems.” He determined that Popock could stand or walk at least 2 hours and
could sit for about 6 hours in an 8-hour workday but that he would have to
alternate sitting and standing to relieve pain or discomfort. Dr. Griscom concluded
that Popock could “do at least sedentary work and possibly light work if suitably
structured.”
Light work is defined as follows:
Light work involves lifting no more than 20 pounds at a time with
frequent lifting or carrying of objects weighing up to 10 pounds. Even
though the weight lifted may be very little, a job is in this category
when it requires a good deal of walking or standing, or when it
involves sitting most of the time with some pushing and pulling of
arm or leg controls. To be considered capable of performing a full or
wide range of light work, you must have the ability to do substantially
all of these activities.
20 C.F.R. § 404.1567. In addition, “light work requires standing or walking, off
and on, for a total of approximately 6 hours of an 8-hour workday.” SSR 83-10,
1983 WL 31251.
The ALJ found that “[t]he medical review that Dr. Griscom provided is an
accurate summary of [Popock’s] various medical conditions.” The ALJ also
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concluded, however, that “Dr. Griscom’s assessment is slightly more restrictive
than warranted.” He did not explain why. Instead, he “accept[ed] the residual
functional capacity assigned by the state agency medical consultants,” who
concluded that Popock could perform the activities required for the full range of
light work, including standing or walking for 6 hours in an 8-hour workday.
None of the examining physicians determined that Popock had the residual
functional capacity to perform light work. See Jones v. Apfel, 190 F.3d 1224,
1228 (11th Cir. 1999) (explaining that if the claimant fails to show his impairments
meet or equal a listed impairment, he must show that he is unable to perform his
past relevant work). Dr. Griscom offered only a conditional opinion that Popock
“possibly” could perform light work in a “suitably structured environment,” and he
concluded that Popock could stand or walk for 2 hours out of a 6 hour workday,
which is inconsistent with the requirements for light work. See SSR 83-10. Only
the non-examining state agency consultants determined that Popock could perform
light work. The assessment forms filled out by those medical consultants,
Andriole James and Gary Cater, do not indicate whether they are medical doctors.
On both forms the space for “medical consultant’s code” is blank.
Even if the consultants are physicians, “[t]he good cause required before the
treating physicians’ opinions may be accorded little weight is not provided by the
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report of a nonexamining physician where it contradicts the report of the treating
physician.” Lamb v. Bowen, 847 F.2d 698, 703 (11th Cir. 1988). Furthermore,
the ALJ offered no explanation for his decision to adopt the consultants’
assessment over Dr. Griscom’s, except to say that Dr. Griscom’s assessment was
“slightly more restrictive than warranted.” Substantial evidence does not support
the ALJ’s decision to credit the opinions of the non-examining, state agency
medical consultants over the other medical evidence in the record.
The AJL erred when he determined that Popock had the residual functional
capacity to perform light work. We reverse and remand for further proceedings to
determine whether, in light of Popock’s inability to perform light work, there are
jobs in the national economy that he can still perform. See Jackson v. Bowen, 801
F.2d 1291, 1293 (11th Cir. 1986) (“If the claimant cannot perform his past work,
the burden shifts to the [Commissioner] to prove that other work exists in the
national economy which the claimant can perform.”).
REVERSED AND REMANDED.
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