John Levie v. Commissioner of Social Security

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-12709
Non-Argument Calendar
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D.C. Docket No. 1:11-cv-00026-WLS
JOHN LEVIE,
Plaintiff-Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
________________________
(March 25, 2013)
Before CARNES, BARKETT and ANDERSON, Circuit Judges.
PER CURIAM:
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John Levie appeals from the district court’s judgment affirming the Social
Security Administration’s (“SSA”) denial of his applications for disability
insurance benefits, 42 U.S.C. § 405(g), and supplemental security income, 42
U.S.C. § 1383. On appeal, Levie first argues that substantial evidence does not
support the administrative law judge’s (“ALJ”) finding that he was able to work.
Second, he asserts that substantial evidence does not support the ALJ’s finding that
he could perform his past relevant work. Finally, he argues that the Appeals
Council (“AC”) erred in denying review based on the new evidence that he had
submitted to the AC.
After thorough review of the record and the parties’ briefs, we affirm.
I. Ability to work
We review the decision of the ALJ as the Commissioner’s final decision
when the ALJ denies benefits and the AC denies review of the ALJ’s decision.
Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001). The Commissioner’s
factual findings are reviewed with deference, and the “factual findings are
conclusive if they are supported by substantial evidence, consisting of such
relevant evidence as a reasonable person would accept as adequate to support a
conclusion.” Id. (quotation marks omitted). Even if we find that the evidence
preponderates against the Commissioner’s decision, we must affirm if the decision
is supported by substantial evidence. Barnes v. Sullivan, 932 F.2d 1356, 1358
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(11th Cir. 1991). The claimant bears the burden of proving that he is disabled and,
thus, is responsible for producing evidence to support his claim. Ellison v.
Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003).
The social security regulations establish a five-step, sequential evaluation
process to determine disability for disability benefits claims. See 20 C.F.R.
§ 404.1520(a)(4). The ALJ must evaluate: (1) whether the claimant engaged in
substantial gainful employment; (2) whether the claimant has a severe impairment;
(3) whether the severe impairment meets or equals an impairment in the Listing of
Impairments; or (4) whether the claimant has the residual functional capacity
(“RFC”) to perform his past relevant work; and (5) whether, in light of the
claimant’s RFC, age, education, and work experience, there are other jobs in the
national economy the claimant can perform. Id. In determining whether a
claimant is disabled, the Commissioner considers all of the claimant’s symptoms
and the extent to which the symptoms can reasonably be accepted as consistent
with the objective medical evidence and other evidence. Id. §§ 404.1529(a),
416.929(a).
Substantial evidence supports the ALJ’s finding that Levie was not disabled
or unable to work. Contrary to Levie’s assertions, the evidence that he presented
did not demonstrate that he had an inability to work with co-workers or under any
supervision. He was fired from his previous jobs for reasons other than his
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vocational limitations. For example, Levie testified before the ALJ that he was
fired from his job at Automax because someone claimed that he had hit a car with
his trailer. He was fired from his job as a relief worker because the employer
claimed he left too many messes, from his job fixing computers because he was
claimed to have had inappropriate contact with a female, and from a second
computer job because he was claimed to have made a security mistake. Levie
never testified before the ALJ that he was fired from any of these jobs because of
an inability to get along with co-workers nor did he provide any evidence that he
was fired for this reason. Additionally, no treating physician or psychiatrist found
that Levie had the inability to work under supervision.
Moreover, the ALJ specifically addressed Levie’s vocational limitations in
the RFC determination, as evidenced by the ALJ’s finding that Levie “should
perform simple, 1 to 3-step work, and he should not deal with the general public.”
While Levie stated that he did not like to interact with people, the ALJ credited his
testimony that he regularly attended church, shopped, went out to eat with his
family, visited with his mother’s sitters, and oversaw people performing repairs at
his church.
Accordingly, substantial evidence supports the ALJ’s finding that Levie was
able to work.
II. Past relevant work
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To support a finding that the claimant is able to return to his past relevant
work, the ALJ must consider all of the duties of that work and evaluate the
claimant’s ability to perform them in spite of his impairments. See Lucas v.
Sullivan, 918 F.2d 1567, 1574 n.3 (11th Cir. 1990) (remanding for evaluation of all
of claimant’s impairments and the effect they have on her ability to fulfill the
duties of her past relevant work). The claimant bears the burden of proving that he
cannot return to his past relevant work. Id. at 1571. The claimant must
demonstrate an inability to perform his “past kind of work, not that he merely be
unable to perform a specific job he held in the past.” See Jackson v. Bowen, 801
F.2d 1291, 1293 (11th Cir. 1986) (holding that although claimant had
demonstrated that he could not perform his past job as a link belt operator at the
pipe manufacturing factory, he did not demonstrate that he could not perform such
jobs in general because he did not show that climbing and descending stairs is
generally a requisite of such jobs). Accordingly, where the claimant’s specific
prior job might have involved functional demands and duties significantly in
excess of those generally required for such work by employers in the national
economy, the claimant must still demonstrate that, in addition to being unable to
perform the excessive functional demands actually required by his former job, he
cannot perform the functional demands and job duties of the position as generally
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required by employers throughout the national economy. SSR 82-61, 1982 WL
31387 (1982).
Here, substantial evidence supports the ALJ’s finding that Levie could return
to his past relevant work as a yard worker. As discussed above, Levie did not
demonstrate that he had the inability to work with co-workers or a supervisor, and
the ALJ found that the work of a yard worker did not require the performance of
work-related activities precluded by Levie’s RFC. While Levie indicated that he
had repaired and maintained equipment and kept records as part of his past work,
he did so because he was also the owner of the business, not because those tasks
generally are required as a yard worker. Although he might not be able to return to
all of the particular job duties he had performed in his prior job, substantial
evidence supports the ALJ’s conclusion that Levie did not meet his burden of
demonstrating that he would be unable to return to the occupation of yard worker
as it is generally performed in the national economy. See Lucas, 918 F.2d at 1571;
Jackson, 801 F.2d at 1293.
III. AC evidence
Generally, a claimant is allowed to present new evidence at each stage of the
administrative process. See 20 C.F.R. § 404.900(b). The AC must consider new,
material, and chronologically relevant evidence and must then review the case if
the ALJ’s decision is contrary to the weight of the evidence currently of record. Id.
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§§ 404.970(b), 416.1470(b). When a claimant properly presents new evidence to
the AC and it denies review, we essentially consider the claimant’s evidence anew
to determine whether “that new evidence renders the denial of benefits erroneous.”
Ingram v. Comm’r of Soc. Sec., 496 F.3d 1253, 1262 (11th Cir. 2007).
SSA regulations provide that the medical opinion of a treating source is
entitled to controlling weight if it “is well-supported by medically acceptable
clinical and laboratory diagnostic techniques and is not inconsistent with the other
substantial evidence” in the record. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2).
A treating source is defined as the claimant’s own physician or psychologist who
has provided the claimant with medical treatment or evaluation, and who has had
an ongoing relationship with the claimant. Id. § 416.902. A physician or
psychologist is not a treating source if the relationship “is not based on [the
claimant’s] need for treatment or evaluation, but solely on [the claimant’s] need to
obtain a report in support of [the] claim for disability.” Id. Additionally, the
opinion of a treating source may be discounted where the opinion is not supported
by objective medical evidence or is merely conclusory. See Johns v. Bowen, 821
F.2d 551, 555 (11th Cir. 1987).
Here, the AC properly declined to review the ALJ’s decision in light of the
evidence submitted. The record reflects that the AC considered the evidence Levie
submitted in deciding not to review his case and found that it did not provide a
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basis for changing the ALJ’s decision. The AC specifically stated it “considered
the reasons [Levie] disagree[d] with the decision and the additional evidence listed
on the enclosed Order of Appeals Counsel.” Contrary to Levie’s assertion, nothing
requires the AC to further explain its denial of review, and in any event we must
consider the evidence anew to determine whether the new evidence renders the
denial of benefits erroneous. See Ingram, 496 F.3d at 1262.
Moreover, the AC did not err in declining to review the ALJ’s decision in
light of the evidence submitted because the evidence was not material. Letters
from two members of Levie’s church showed that Levie had some difficulty
working with members of his church on construction projects. However, Levie
was not removed due to his alleged inability to get along with co-workers or
supervisors; instead, he was removed because he wanted to become a contractor
and the church did not want to give him an unfair advantage over other potential
contractors.
The information provided by Dr. Todd Smith similarly did not render the
ALJ’s decision contrary to the weight of the evidence in the record. First, Dr.
Smith was not a treating psychologist as his opinion was not based on Levie’s need
for treatment or evaluation. Second, while Levie reported to Dr. Smith that he had
been terminated from every job he had previously held because of his inability to
interact with supervisors and co-workers, this information was directly at odds
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with Levie’s testimony before the ALJ regarding his reasons for being fired.
Finally, Dr. Smith’s evaluation showed that some of Levie’s test results were
suspect.
Levie’s evidence did not render the ALJ’s decision contrary to the weight of
the evidence in the record, and the AC did not err in denying review.
IV. Conclusion
Upon review of the record and consideration of the parties’ briefs, we
affirm.
AFFIRMED.
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