           Case: 13-15285   Date Filed: 09/04/2014   Page: 1 of 10


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-15285
                         Non-Argument Calendar
                       ________________________

                    D.C. Docket No. 9:12-cv-81324-FJL


CORA LEE LOY DE OLAZABAL,

                                                            Plaintiff-Appellant,

                                  versus

SOCIAL SECURITY ADMINISTRATION, COMMISSIONER,

                                                          Defendant-Appellee.

                       ________________________

                Appeal from the United States District Court
                   for the Southern District of Florida
                      ________________________

                            (September 4, 2014)

Before TJOFLAT, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:
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      Cora Lee Loy De Olazabal (the “Claimant”) appeals the District Court’s

judgment affirming the decision of the Administrative Law Judge (“ALJ”) denying

her disability insurance benefits (“DIB”), pursuant to 42 U.S.C. §§ 405(g) and

1383(c)(3). Claimant argues that the ALJ’s stated reasons for according little

weight to the opinion of her treating physician—Dr. Jonathan Greer—were not

supported by substantial evidence because the ALJ misstated the record and

improperly relied on the absence of objective evidence, which does not exist in a

fibromyalgia case. Second, she argues that, because the ALJ failed to properly

consider her primary medical condition of fibromyalgia, the ALJ necessarily failed

to properly analyze her subjective pain complaints and credibility and the ALJ’s

credibility determination was not supported by substantial evidence. Lastly, she

argues that the ALJ erred by failing to provide a reason for disregarding the

function report form completed by her husband in determining her residual

functional capacity (“RFC”). After considering the record and the parties’ briefs,

we affirm.

                                         I.

      Claimant was 48 years old at the onset of her disability, which occurred on

April 14, 2005, around the time she quit her job with an office machine company.

She started with the firm as a receptionist and worked her way up to customer



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service and then to sales representative. She quit the firm over a salary dispute. 1

       In October 2009, Claimant filed an application for DIB. She claimed that

her disability (which began on April 14, 2005) was rooted in the injuries—a

herniated disc at C5-6 and bulging discs at C3-4 and C-6-7—she received in an

automobile accident in November 2000, and that this spinal injury coupled with

fibromyalgia, osteoarthritis, neurofibroma, and neuropathy causes her pain so

severe that she cannot work. The Commissioner denied Claimant’s application.

The ALJ did likewise following a hearing in November 2011. 2

                                               II.

       In Social Security appeals, we review the decision of an ALJ as the

Commissioner’s final decision when the ALJ denies benefits and the Appeals

Council denies review of the ALJ’s decision. Doughty v. Apfel, 245 F.3d 1274,

1278 (11th Cir. 2001). We review the ALJ’s decision “to determine if it is

supported by substantial evidence and based on proper legal standards.” Lewis v.

Callahan, 125 F.3d 1436, 1439 (11th Cir. 1997). “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.



       1
          Before Claimant came to the office machine company, she did clerical and secretarial
work for the Palm Beach County Board of County Commissioners.
        2
          At the hearing, Claimant testified that she was 5΄6΄΄ tall and weighed 226 pounds. She
said that her pain made it difficult for her to exercise and lose weight.
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      A claimant for disability benefits must prove that she is disabled. Moore v.

Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). A claimant is eligible for benefits

if she demonstrates that she was disabled on or before the last date for which she

was insured. Id. There is a five-step evaluation process to determine whether the

claimant is disabled, which is as follows:

      (1) whether the claimant is currently engaged in substantial gainful
      activity; (2) whether the claimant has a severe impairment or
      combination of impairments; (3) whether the impairment meets or
      equals the severity of the specified impairments in the Listing of
      Impairments; (4) based on a residual functional capacity (“RFC”)
      assessment, whether the claimant can perform any of his or her
      relevant past work, despite the impairment; and (5) whether there are
      significant numbers of jobs in the national economy that the claimant
      can perform given the claimant’s RFC, age, education, and work
      experience.

Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011).

      When evaluating an applicant’s claim for social security disability benefits,

the ALJ must give “substantial weight” to the opinion of the applicant’s treating

physician “unless good cause exists for not heeding the treating physician’s

diagnosis.” Edwards v. Sullivan, 937 F.2d 580, 583 (11th Cir. 1991); see also

Smith v. Schweiker, 646 F.2d 1075, 1081 (5th Cir. 1981) (“It is not only legally

relevant but unquestionably logical that the opinions, diagnosis, and medical

evidence of a treating physician whose familiarity with the patient’s injuries,

course of treatment, and responses over a considerable length of time, should be

given considerable weight.”).
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      We have held that good cause exists when: “(1) the treating physician’s

opinion was not bolstered by the evidence; (2) [the] 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, 1241

(11th Cir. 2004). If the ALJ disregards or accords less weight to the opinion of a

treating physician, the ALJ must clearly articulate his reasons, and the failure to do

so is reversible error. Lewis, 125 F.3d at 1440. The opinion of a reviewing, non-

examining physician does not establish the good cause necessary to reject the

opinion of a treating physician. Lamb v. Bowen, 847 F.2d 698, 703 (11th Cir.

1988).

      Based on the medical evidence, the ALJ explicitly accepted Claimant’s

fibromyalgia and degenerative disc disease diagnoses, as well as Dr. Greer’s

clinical findings of spasm and decreased range of motion. But the ALJ gave

limited weight to Dr. Greer’s opinion that Claimant was incapacitated and disabled

to the point that she could not work. Summarizing the medical evidence, the ALJ

did not just cite to the portions of the record that supported his conclusion, but

specifically cited to statements in Claimant’s treatment notes indicating that at

times she reported that she was not doing well and had diffuse pain, spasm, and

tenderness to the touch. Substantial evidence supports the ALJ’s articulation of

good cause for rejecting Dr. Greer’s opinion that Claimant could not work and his

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reasons for giving limited weight to the doctor’s testimony. As noted by the ALJ,

the objective medical evidence, specifically Dr. Greer’s own treatment notes,

contain no references to Claimant’s alleged chronic fatigue and depression that

would have prevented her from being able to work full time. Moreover, the ALJ

did not rely on the absence of objective evidence of fibromyalgia in discounting

Dr. Greer’s opinion, as the ALJ explicitly accepted Dr. Greer’s diagnosis of

fibromyalgia. Rather, the ALJ relied on the fact that Dr. Greer admitted that his

opinion was based on Claimant’s subjective reports of her symptoms, which, as

discussed below, were not entirely credible in light of the inconsistencies in her

testimony and between her testimony and the record evidence.

                                         III.

      When a claimant attempts to establish a disability through his own testimony

concerning pain or other subjective symptoms, we apply a three-part test, which

requires (1) evidence of an underlying medical condition; and (2) either

(a) objective medical evidence that confirms the severity of the alleged pain

stemming from that condition, or (b) that the objectively determined medical

condition is of a severity that can reasonably be expected to cause the alleged pain.

Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002).

      If the record shows that the claimant has a medically determinable

impairment that could reasonably be expected to produce the symptoms she

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describes, the ALJ must evaluate the intensity and persistence of the symptoms in

determining how, if at all, they limit the claimant’s capacity for work. 20 C.F.R.

§ 404.1529(c)(1). In doing so, the ALJ considers all of the record, including the

objective medical evidence, the claimant’s history, and statements of the claimant

and her doctors. Id. § 404.1529(c)(1)–(2). The ALJ may consider other factors,

such as: (1) the claimant’s daily activities; (2) the location, duration, frequency,

and intensity of the claimant’s pain or other symptoms; (3) any precipitating and

aggravating factors; (4) the type, dosage, effectiveness, and side effects of the

claimant’s medication; (5) any treatment other than medication; (6) any measures

the claimant used to relieve her pain or symptoms; and (7) other factors concerning

the claimant’s functional limitations and restrictions due to her pain or symptoms.

Id. § 404.1529(c)(3). The ALJ then will examine the claimant’s statements

regarding her symptoms in relation to all other evidence, and consider whether

there are any inconsistencies or conflicts between those statements and the record.

Id. § 404.1529(c)(4). “After considering a claimant’s complaints of pain, the ALJ

may reject them as not creditable, and that determination will be reviewed for

substantial evidence.” Marbury v. Sullivan, 957 F.2d 837, 839 (11th Cir. 1992).

The ALJ must explicitly and adequately articulate his reasons if he discredits

subjective testimony. Id.



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      The record does not support Claimant’s allegations of pain so severe and

persistent that it would render her disabled. The ALJ specifically articulated his

reasons for discrediting her testimony, including inconsistencies regarding the side

effects of her medications, why she quit working, her level of activities after that,

her pain rating, and the impact of exercise. Each of these reasons is supported by

substantial evidence.

      While Claimant testified that her medications made her tired and

constipated, her treatment notes from Dr. Rogers consistently indicated that she

reported no significant side effects from her medication. Likewise, while she

testified at the hearing that she had been dealing with pain that she rated as a 12

plus since 2005, her treatment notes never reflect her reporting a pain level that

high while on medication. To the contrary, the notes consistently reflected that she

was able to function in her daily life with her medications. Her testimony at the

hearing that swimming made her pain worse was contradicted by her pain

management records that reflect that, on multiple occasions, she reported to Dr.

Anthony Rogers that swimming improved her pain. Finally, her medical records

reflected that she engaged in various types of exercise, as well as shopping,

gardening, doing housework, and making trips to Virginia to help her father care

for her mentally disabled sister, which contradicted her testimony regarding her

inability to engage in sustained activity.

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                                        IV.

      Pursuant to the regulations, in addition to evidence from acceptable medical

sources, the ALJ “may also use evidence from other sources to show the severity”

of the claimant’s impairment and how it affects her ability to work. 20 C.F.R.

§ 404.1513(d). “Other sources” include spouses. Id. § 404.1513(d)(4). Social

Security Ruling 06-03p provides that

      Although there is a distinction between what an adjudicator must
      consider and what the adjudicator must explain in the disability
      determination or decision, the adjudicator generally should explain the
      weight given to opinions from these “other sources,” or otherwise
      ensure that the discussion of the evidence in the determination or
      decision allows a claimant or subsequent reviewer to follow the
      adjudicator's reasoning, when such opinions may have an effect on the
      outcome of the case.

SSR 06-03p. “Social Security Rulings are agency rulings published under the

authority of the Commissioner of Social Security and are binding on all

components of the Administration.” Sullivan v. Zebley, 493 U.S. 521, 531 n.9, 110

S.Ct. 885, 891 n.9, 107 L. Ed. 2d 967 (1990) (internal quotations omitted).

Although SSA rulings are not binding on this Court, we accord the rulings

deference. See Fair v. Shalala, 37 F.3d 1466, 1468–69 (11th Cir. 1994).

      In Lucas v. Sullivan, 918 F.2d 1567 (11th Cir. 1990), we vacated the ALJ’s

decision and remanded for further proceedings because the ALJ failed to review

the testimony of the claimant’s daughter and neighbor and did not give reasons for

rejecting such testimony. Id. at 1574. We instructed the ALJ to state the weight he
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accorded to each item of impairment evidence and the reasons for accepting or

rejecting that evidence. Id.

      Here, the ALJ referenced Claimant’s husband’s report in determining that

she had severe impairments that caused mild limitations in her daily living

activities, but did not reference the report in determining her RFC. The ALJ’s

error in not specifically considering the Third-Party Function Report completed by

Claimant’s husband when determining that her RFC is harmless. See Diorio v.

Heckler, 721 F.2d 726, 728 (11th Cir. 1983) (applying the harmless error doctrine

to a social security appeal). Her husband’s report was merely cumulative of her

own testimony and the medical evidence in the record. Like Drs. Greer’s and

Rogers’s treatment notes, his report reflected that she had chronic pain and that she

had good and bad days. However, like the treatment notes, it reflected that she

exercised, gardened, and did housework. Because it was cumulative of the other

evidence in the record and, as discussed above, the ALJ properly considered the

medical evidence in the record and her own testimony, the fact that the ALJ did not

separately discuss the report or provide specific reasons for not relying upon it is

harmless.

      AFFIRMED.




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