           Case: 12-11762   Date Filed: 02/08/2013   Page: 1 of 10




                                                          [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 12-11762
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 2:11-cv-00118-CSC



CHRISTINA M. SANCHEZ,

                     Plaintiff - Appellant,

versus

COMMISSIONER OF SOCIAL SECURITY,

                     Defendant - Appellee.


                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Alabama
                      ________________________

                            (February 8, 2013)

Before HULL, WILSON and JORDAN, Circuit Judges.

PER CURIAM:
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       Christina M. Sanchez, through counsel, appeals from the district court’s

order affirming the Administrative Law Judge’s (ALJ) denial of disability

insurance benefits (DIB), 42 U.S.C. §§ 401–434, and supplemental security

income (SSI), 42 U.S.C. §§ 1381–1383f, pursuant to 42 U.S.C. §§ 405(g) and

1383(c)(3). On appeal, Sanchez argues that the ALJ erroneously failed to consider

her diagnosis of Borderline Personality Disorder (BPD) in the analysis and, in

particular, failed to identify BPD as a severe impairment at step two of the

sequential evaluation. 1

       In Social Security appeals, we review the Commissioner’s decision to

determine if it is supported by substantial evidence and based on proper legal

standards. Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004)

(per curiam) (citing 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.” Winschel v.

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

       1
          Notably, Sanchez has not explicitly challenged the weight given to the medical opinions
by the ALJ, nor the ALJ’s credibility determination. Sanchez also has not expressly challenged
the ALJ’s ultimate decision that, because Sanchez would not be disabled if she stopped her
substance use, her substance use disorder was a contributing factor material to the disability
determination. See 42 U.S.C. §§ 423(d)(2)(C), 1382c(a)(3)(J); 20 C.F.R. §§ 404.1535, 416.935;
see also Doughty v. Apfel, 245 F.3d 1274, 1281 (11th Cir. 2001) (“[T]he claimant bears the
burden of proving that the substance abuse is not a contributing factor material to the disability
determination.”). As a result, Sanchez has effectively abandoned any challenge to these
decisions. See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004) (“[A]
legal claim or argument that has not been briefed before the court is deemed abandoned and its
merits will not be addressed.”).


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quotation marks omitted). “We may not decide the facts anew, reweigh the

evidence, or substitute our judgment for that of the Commissioner.” Id. (citation

omitted). Even if a preponderance of the evidence weighs against the

Commissioner’s decision, we must affirm if substantial evidence supports it.

Sewell v. Bowen, 792 F.2d 1065, 1067 (11th Cir. 1986).

      We have also declined to remand for express findings when doing so would

be a “wasteful corrective exercise” in light of the evidence of record and when no

further findings could be made that would alter the ALJ’s decision. Ware v.

Schweiker, 651 F.2d 408, 412–13 (5th Cir. Unit A 1981); see also Diorio v.

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

to erroneous statements of fact made by the ALJ). On the other hand, the ALJ’s

“failure to apply the correct law or to provide the reviewing court with sufficient

reasoning for determining that the proper legal analysis has been conducted

mandates reversal.” Ingram v. Comm’r of Soc. Sec., 496 F.3d 1253, 1260 (11th

Cir. 2007). When the ALJ “fails to ‘state with at least some measure of clarity the

grounds for his decision,’ we will decline to affirm ‘simply because some rationale

might have supported the ALJ’s conclusion.’” Winschel, 631 F.3d at 1179

(quoting Owens v. Heckler, 748 F.2d 1511, 1516 (11th Cir. 1984) (per curiam)).

      “The burden is primarily on the claimant to prove that [s]he is disabled, and

therefore entitled to receive [social security and disability insurance] benefits.”



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Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001). In determining whether a

claimant has proven that she is disabled, the ALJ must complete a five-step

sequential evaluation process and determine:

      (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 past
      relevant 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, 631 F.3d at 1178 (citing Phillips v. Barnhart, 357 F.3d 1232, 1237–39

(11th Cir. 2004)); 20 C.F.R. §§404.1520(a)(4)(i)–(v), 416.920(a)(4)(i)–(v).

      At step two, the ALJ must make a “threshold inquiry” as to the medical

severity of the claimant’s impairments. McDaniel v. Bowen, 800 F.2d 1026, 1031

(11th Cir. 1986); see 20 C.F.R. §§ 404.1520(a)(4)(ii), (c), 404.1520a(a), 404.1523,

416.920(a)(4)(ii), (c), 416.920a(a), 416.923. “[T]he finding of any severe

impairment, whether or not it qualifies as a disability and whether or not it results

from a single severe impairment or a combination of impairments that together

qualify as severe, is enough to satisfy the requirement of step two.” Jamison v.

Bowen, 814 F.2d 585, 588 (11th Cir. 1987). An impairment or combination of

impairments is not severe if it does not significantly limit the claimant’s physical

or mental ability to do basic work activities, such as the abilities and aptitudes

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necessary to do most jobs. 20 C.F.R. §§ 404.1521(a)–(b), 416.921(a)–(b). In other

words, “[a]n impairment is not severe only if the abnormality is so slight and its

effect so minimal that it would clearly not be expected to interfere with the

individual’s ability to work, irrespective of age, education or work experience.”

McDaniel, 800 F.2d at 1031; see Moore v. Barnhart, 405 F.3d 1208, 1213 n.6

(11th Cir. 2005) (per curiam) (noting that the mere existence of impairments does

not reveal the extent to which they limit the claimant’s ability to work). Pertinent

examples of “basic work activities” include understanding, carrying out, and

remembering simple instructions; use of judgment; responding appropriately to

supervision, co-workers, and usual work situations; and dealing with changes in a

routine work setting. 20 C.F.R. §§ 404.1521(b), 416.921(b).

      During steps three through five, the ALJ must consider the claimant’s

medical condition as a whole. Jamison, 814 F.2d at 588. At step three, if the ALJ

determines that a claimant is disabled but also makes a finding that substance

abuse is involved, the ALJ “must determine whether [the claimant’s] drug

addiction or alcoholism is a contributing factor material to the determination of

disability.” 20 C.F.R. §§ 404.1535(a), 416.935(a). The key factor in this inquiry is

whether the claimant would still qualify as disabled if she stopped using drugs or

alcohol. 20 C.F.R. §§ 404.1535(b)(1), 416.935(b)(1). The ALJ must evaluate

which of the claimant’s physical and mental limitations that supported the original



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disability determination would remain absent drug or alcohol use. 20 C.F.R. §§

404.1535(b)(2), 416.935(b)(2). If a claimant would no longer be disabled if she

stopped using drugs or alcohol, then the claimant’s substance abuse is considered

to be a “contributing factor material to the determination of [her] disability,” and

she has therefore failed to meet her burden and prove that she is disabled. 20

C.F.R. §§ 404.1535(b)(2)(i), 416.935(b)(2)(i); 42 U.S.C. §§ 423(d)(2)(C),

1382c(a)(3)(J).

      Before reaching step four, the ALJ must assess the claimant’s RFC—which

is the most work the claimant can do despite her physical and mental limitations—

by considering all of the relevant medical and medically determinable

impairments, including any such impairments that are not “severe.” 20 C.F.R.

§§ 404.1520(e), 404.1545(a)(1)–(3), 416.920(e), 416.945(a)(1)–(3). In assessing

the RFC, the ALJ must consider the claimant’s ability to meet the physical, mental,

sensory, and other requirements of work. 20 C.F.R. §§ 404.1545(a)(4),

416.945(a)(4). At step five, the ALJ must pose hypothetical questions, including

all of the claimant’s impairments and resulting limitations, to a Vocational Expert

(VE). See Winschel, 631 F.3d at 1180. If the VE opines that there are jobs in the

national economy that the claimant can perform, the claimant must prove that she

is unable to perform those jobs in order to be found disabled. See Phillips, 357

F.3d at 1239.



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       First and foremost, the ALJ’s determination that Sanchez’s substance abuse

was a contributing factor material to the determination of her disability—which is

supported by substantial evidence in the record—was alone sufficient to foreclose

her disability claim. See 42 U.S.C. § 423(d)(2)(C), 1382c(a)(3)(J). Although the

mental health records at Montgomery Mental Health made no mention of

substance abuse, and Sanchez denied her substance abuse to Dr. Karl Kirkland,

Sanchez tested positive for opiates, cannabis, cocaine, and benzodiazepine while

undergoing treatment at Baptist Medical Center South. Sanchez also admitted to

Dr. Phillip Golomb that she had engaged in daily marijuana use since the age of

15, and admitted to Dr. Kirkland that she had a cocaine problem in her teen years. 2

Sanchez even testified that she had smoked marijuana daily since the age of 17,

and that she used marijuana ten times in the interim period between the initial and

supplemental ALJ hearings. Moreover, Dr. Doug McKeown opined that if

Sanchez refrained from the use of illicit drugs, she would have no more than mild

limitations in her daily functioning.

       Second, even absent the conclusion that Sanchez’s substance abuse was a

contributing factor material to the determination of her disability, the ALJ’s failure

to classify Sanchez’s alleged BPD as a severe impairment at step two was a

       2
          Sanchez’s cocaine-positive urinalysis at Baptist Medical Center South suggests that she
used cocaine as recently as 2007. Sanchez maintains that her cocaine use was not intentional,
and that the marijuana she smoked prior to the urinalysis must have come into contact with
cocaine.


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determination supported by substantial evidence. Sanchez, to the contrary,

vehemently argues that even if she abstained from substance use, she would still be

disabled due to the severity of her BPD diagnosis, and therefore the ALJ erred by

failing to consider this impairment. However, only Dr. Kirkland—out of

numerous doctors at multiple institutions who examined Sanchez over the course

of 17 years, since her first hospitalization at the age of 13—ever diagnosed

Sanchez with BPD.3 All of Sanchez’s other doctors diagnosed her with some

combination of mood disorder, polysubstance abuse, or bipolar disorder, and all of

these diagnoses were consistent with the ALJ’s findings.

       Moreover, the Diagnostic and Statistical Manual of Mental Disorders—on

which Sanchez heavily relies in support of her BPD diagnosis—specifically states

that BPD “often co-occurs with Mood Disorders,” and warns that “[b]ecause the . .

. presentation of Borderline Personality Disorder can be mimicked by an episode of

Mood Disorder, [medical professionals] should avoid giving an additional

diagnosis of Borderline Personality Disorder . . . without having documented that

the pattern of behavior has an early onset and a long-standing course.” Am.

Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders 653 (4th

ed. text rev. 2000) [hereinafter DSM-IV]. The DSM-IV also specifically states that


       3
         Although Allen Downs, a Mental Health Therapist, diagnosed Sanchez with
“personality disorder, not otherwise specified, with borderline and dependent features,” he did
not render an official diagnosis of BPD. Downs is also not a medical doctor.


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BPD “must also be distinguished from symptoms that may develop in

association with chronic substance use.” Id. at 654 (emphasis in original).

Ultimately, the ALJ’s determination that BPD was not a severe impairment was

supported by substantial evidence in the record, based on (1) the limited evidence

of BPD in Sanchez’s medical history, (2) the evidence that any BPD symptoms

may have actually been caused by mood disorders or substance abuse, and (3)

evidence that Sanchez “misled [Dr. Kirkland] concerning her substance abuse.”

      Finally, even if the ALJ erred by failing to identify BPD as a severe

limitation at step two, the ALJ properly considered the symptoms and limitations

that would result from BPD at the latter stages of the five-step disability

evaluation. Specifically, after the ALJ listed numerous other severe mental

impairments at step two, the ALJ acknowledged that Dr. Kirkland diagnosed

Sanchez with BPD. Moreover, both the ALJ’s RFC assessment and the

hypothetical questions posed to the VE accounted for all of Sanchez’s mental

limitations, including any limitations and symptoms that might have been caused

by or were consistent with BPD. See DSM-IV at 650–52 (listing the diagnostic

criteria and diagnostic features of BPD). Sanchez has failed to show what

additional limitations her BPD may have caused, above and beyond the limitations

manifested by her other severe mental disorders, and how any such limitations

were independent of her substance abuse. For the foregoing reasons, the ALJ’s



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decision that Sanchez was not disabled is supported by substantial evidence in the

record.

      AFFIRMED.




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