                                                             [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                        FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                                DEC 18, 2008
                               No. 08-12628                   THOMAS K. KAHN
                           Non-Argument Calendar                  CLERK
                         ________________________

                  D. C. Docket No. 06-02252-CV-T-30-TGW

DENNIS SANABRIA,


                                                               Plaintiff-Appellant,

                                     versus

COMMISSIONER OF SOCIAL SECURITY,

                                                              Defendant-Appellee.


                         ________________________

                  Appeal from the United States District Court
                      for the Middle District of Florida
                       _________________________

                              (December 18, 2008)

Before ANDERSON, DUBINA and PRYOR, Circuit Judges.

PER CURIAM:

     Dennis Sanabria appeals the district court’s order affirming the
final decision by the Commissioner of Social Security (“Commissioner”) denying

his application for disability insurance benefits. First, Sanabria asserts that the

Administrative Law Judge (“ALJ”) erred by giving little weight to the opinion of

Sanabria’s treating neurologist. Second, Sanabria argues that the ALJ erred by

failing to understand the impact of Sanabria’s impairments on his ability to

function in the workplace. Finally, Sanabria argues that the ALJ erred in allowing

the vocational expert (“VE”) to leave the hearing prior to the completion of

Sanabria’s testimony. For the reasons set forth below, we affirm.

                                 I. BACKGROUND

      In 1992, Sanabria experienced a pulmonary embolus and a syncopal episode.

He was treated by a cardiologist and pulmonary specialist. Initially, he was

released to full work activity by both specialists. However, in January of 1996,

Sanabria was restricted to light work activity due to an unfavorable decline in

pulmonary function. Sanabria initially applied for disability insurance benefits on

January 10, 1997. On June 26, 1997, Sanabria was involved in a motor vehicle

accident resulting in central disc protrusions at the lower four levels of the cervical

spine with effacement of the cervical cord at the lower two levels. He began

treatment with neurologist, Robert Martinez. After a hearing, an ALJ denied

Sanabria’s claim for benefits and the administrative Appeals Council (“Council”)



                                           2
denied his request for review. Sanabria appealed to the United States District

Court for the Middle District of Florida. On November 13, 2000 the district court

remanded the case after determining that the ALJ’s credibility determination was

flawed and that the ALJ relied on statements of the plaintiff’s daily activities that

did not reflect his subsequent car accident. On remand, the same ALJ again denied

Sanabria’s application. The Council remanded, instructing a new ALJ to evaluate

the opinion of Sanabria’s treating neurologist, Dr. Martinez, and explain the weight

given to this evidence. The Council also directed the ALJ to obtain testimony from

a vocational expert to clarify the effect of Sanabria’s limitations on his

occupational base.

      Subsequently, a third hearing was conducted by a new ALJ. The ALJ

determined that Sanabria suffered from several impairments that in combination

were severe. The ALJ assessed Sanabria’s functional limitations as follows:

      He was able to lift and carry up to twenty pounds occasionally and
      less than twenty pounds frequently and was able to sit or stand
      throughout an eight-hour day providing he could alternate positions as
      needed for comfort. He required a temperature-controlled
      environment without exposure to temperature extremes, dusts, fumes
      or gases. He had to avoid work around moving machinery and jobs
      requiring climbing, balancing or driving.

Although the ALJ determined that Sanabria could not return to his previous work

as a firefighter, he found that Sanabria could perform a restricted range of light



                                           3
work sufficient to obtain a job available in the national economy. Accordingly, the

ALJ determined that Sanabria was not disabled. On December 7, 2006, Sanabria

filed this action in the Middle District of Florida.

                           II. STANDARD OF REVIEW

      We review de novo the judgment of the district court. Ingram v. Comm’r of

Soc. Sec. Admin., 496 F.3d 1253, 1260 (11th Cir. 2007). We review the ALJ’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). “Substantial evidence is more than a scintilla and is such relevant evidence

as a reasonable person would accept as adequate to support a conclusion. Even if

the evidence preponderates against the Commissioner’s findings, we must affirm if

the decision reached is supported by substantial evidence.” Id. at 1158-59 (internal

quotations and citation omitted). In conducting this review, we may not reweigh

the evidence or substitute our judgment for that of the ALJ. Martin v. Sullivan,

894 F.2d 1520, 1529 (11th Cir. 1990). We review de novo the Commissioner’s

conclusions of law. Ingram, 496 F.3d at 1260 (11th Cir. 2007).

                                  III. DISCUSSION

      First, we discuss whether there is substantial evidence to support the ALJ’s

decision to give little weight to some of the opinion of Sanabria’s treating



                                            4
physician. Then, we address Sanabria’s argument that the ALJ failed to adequately

consider all of his impairments. Finally, we discuss whether the ALJ erred by

allowing the VE to leave the hearing before the conclusion of Sanabria’s

testimony.

         A. Whether the ALJ Erred by Failing to Give Proper Weight to the Opinion
         of Sanabria’s Treating Neurologist

         We find no reversible error. Absent the existence of “good cause” to the

contrary, the ALJ must give substantial weight to the opinion of a treating

physician. Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1159 (11th Cir.

2004); see also 20 C.F.R. § 404.1527(d)(2). Good cause exists when the treating

physician’s opinion is not supported by the evidence or when the opinion is

conclusory or inconsistent with the physician’s own medical records. See Lewis v.

Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997). Sanabria began treatment with

neurologist Robert Martinez in October of 1997. The social security regulations

state:

         If we find that a treating source's opinion on the issue(s) of the nature
         and severity of your impairment(s) is well-supported by medically
         acceptable clinical and laboratory diagnostic techniques and is not
         inconsistent with the other substantial evidence in your case record,
         we will give it controlling weight.

20 C.F.R. § 404.1527(d)(2). Here, the ALJ determined:

         The objective medical evidence does not confirm the severity of the

                                             5
       alleged symptoms, nor does the weight of the medical and non-
       medical evidence demonstrate the presence of impairments that
       reasonably could be expected to produce symptoms and functional
       limitations to the degree alleged by the claimant.1

Thus, under the regulations, the ALJ was not required to give the opinion of Dr.

Martinez controlling weight.

       When the opinion of the treating physician is not given controlling weight,

the ALJ must give good reasons for the weight given to the opinion. Id. The ALJ

considers six factors: (1) the length of the treatment relationship and the frequency

of examination; (2) the nature and extent of the treatment relationship; (3) the

amount of relevant medical evidence to support the opinion; (4) the consistency of

the opinion with the record as a whole; (5) the specialty of the treating physician;

and (6) any other factors brought to the attention of the ALJ.                 Here, the ALJ

concluded that, beginning in November of 1999, the opinion of Dr. Martinez

regarding Sanabria’s functional limitations was entitled to little weight.                    In

November of 1999, Dr. Martinez completed a functional capacity statement in

which he indicated that Sanabria suffered from strict functional limitations,

including, among other assessments, that the claimant could sit, stand or walk for


       1
               The ALJ stated: “Even Dr. Martinez reported no neurological deficits and
certainly no muscle atrophy, muscle weakness, reflex loss or sensory decrease that reasonably
could be expected with disc herniation, spinal stenosis and/or nerve root involvement productive
of the symptoms alleged by the claimant.” Appellant has not specifically challenged this
finding.

                                               6
no more than one hour each in an eight-hour workday.        The ALJ stated several

reasons for concluding that the opinion of Dr. Martinez was entitled to little weight

beginning in November of 1999: (1) prior to November of 1999, Dr. Martinez did

not provide specific functional limitations indicative of a 100% disability rating

and there was no significant change in Sanabria’s condition at that time; (2) Dr.

Martinez reported no neurological deficits, muscle atrophy, muscle weakness,

reflex loss or sensory decrease that would be expected, considering claimant’s

condition, to produce the symptoms Sanabria alleged; (3) Dr. Field concluded that

Sanabria could undertake sedentary activities; (4) while Dr. Field acknowledged

that the claimant suffered from chronic pain, he felt that Sanabria was able to

handle the pain well because he did not show any real symptoms of significant

distress during his examination.

      Sanabria presents substantial arguments refuting these points. First, he notes

that Dr. Martinez consistently found Sanabria unable to work all through 1998 and

1999. Dr. Martinez’s reports contain statements such as “the patient has never

been able to return to work,” “he has been unable to work or function,” “he has

been unable to work, unable to function, unable to do anything uninterruptedly

because of his pain.” It is unclear if Dr. Martinez was stating his opinions or




                                          7
simply recording Sanabria’s complaints.2 However, the ALJ’s opinion took these

statements into account. The opinion stated that throughout 1999 Dr. Martinez

“noted an alleged inability to work due to a combination of cardiac, pulmonary and

musculoskeletal impairments.”           Given that the ALJ expressly considered this

evidence, we will not reweigh its significance or substitute our judgment for that of

the ALJ.

       Second, Sanabria argues that his symptoms did change during 1999. The

ALJ opinion stated: “Throughout 1999, Dr. Martinez reported no real change in

symptoms or findings on physical examination.” However, on June 10, 1999, Dr.

Martinez reported that Sanabria experienced bilateral arm and leg pain with

periodic tingling of the fingertips of both hands that tended to come and go.

Although the ALJ did not specifically take note of the fact that Sanabria raised

these complaints in 1999, the ALJ did consider evidence of these symptoms. The

opinion states that on evaluations by Dr. Martinez during 2000 and 2001, “[t]here

continued to be no motor, sensory or reflex abnormalities despite allegations of

some arm and leg pains and some tingling in the hands.” Furthermore, the section

of Dr. Martinez’s reports listing the results of his physical examination of Sanabria


       2
               At the beginning of the opinion, the ALJ noted that he requested the transcript of
depositions that had been given in other proceedings from treating sources, particularly those of
Dr. Martinez. However, counsel provided him only with the attending physician statements of
Dr. Martinez to an insurance company.

                                                8
and his list of neurological impressions did not change significantly during 1999.

       Finally, Sanabria argues that as a one-time orthopedic consultant Dr. Field’s

opinion should not have been accepted to the extent it conflicted with Dr.

Martinez’s opinion. The length of the treatment relationship and the frequency of

examination is a relevant factor in determining the weight given to a medical

opinion. 20 C.F.R. § 404.1527(d)(2)(i). However, the ALJ is required to evaluate

every medical opinion he or she receives. Id. § 404.1527(d). Here, there is no

indication that the ALJ gave Dr. Field’s opinion undue weight. The ALJ relied on

numerous grounds to support his conclusion that Dr. Martinez’s opinion of

Sanabria’s limitations should be given little weight after November of 1999. First

and foremost, the ALJ found that the severity of Sanabria’s alleged symptoms were

out of proportion to the objective medical evidence.             He also determined: (1)

Sanabria had a financial incentive to exaggerate his symptoms; (2) many of his

complaints were never substantiated on physical examination; and (3) despite

allegations of incapacitating pain for several years he did not undergo further

testing or pursue the more intensive treatments recommended by Dr. Martinez.

Thus, we conclude that there is substantial evidence to support the ALJ’s decision

to give little weight to the opinion of Dr. Martinez.3


       3
              Unlike the district court, we find nothing inherently contradictory about Dr.
Martinez’s determination that Sanabria had a 23% permanent impairment rating to the body as a

                                              9
         The ALJ also determined that Dr. Martinez’s statements regarding the

claimant’s disability status were entitled to little weight. He found such statements

conclusory determinations on issues reserved for the Commissioner. We find no

error.    Whether a claimant meets the statutory definition of disability is an

administrative finding determined by the Commissioner. 20 C.F.R. § 404.1527(e).

Thus, we conclude there is substantial evidence to support the ALJ’s decision to

give little weight to the opinion of Dr. Martinez beginning in November of 1999.

         B. Whether the ALJ considered all of plaintiff’s impairments

         Sanabria argues, in essence, that the ALJ did not appreciate the severity of

his impairments. We find no reversible error. First, Sanabria argues that the ALJ

erroneously concluded that protruded discs were not a severe impairment. The

record establishes the opposite. The ALJ’s opinion recognized that “the claimant

did have a severe combination of impairments.” Among the listed impairments

was “central disc protrusions at the lower four levels of the cervical spine with

effacement of the cervical cord at the lower two levels.” Sanabria also argues that

the ALJ erroneously failed to list lightheadedness and dizziness as severe




whole and his subsequent conclusion that Sanabria was 100% permanently disabled. However,
we note that the ALJ did not rely on this reasoning in his decision. The ALJ determined that
there was a contradiction in Dr. Martinez’s assessment of Sanabria’s functional limitations. For
example, his sudden conclusion in November of 1999 that Sanabria could sit, stand or walk for
no more than one hour each in an eight-hour workday.

                                               10
impairments. However, the ALJ’s opinion set forth evidence of these symptoms

and explicitly stated: “I must consider all the evidence, including the claimant’s

own description of his symptoms and how these symptoms kept him from

working.”     Thus, with respect to Sanabria’s impairments, there is substantial

evidence to support the ALJ’s decision.

        C. Whether the ALJ erred in allowing the VE to leave before the conclusion
        of the hearing

        Sanabria asserts that by allowing the VE to leave before he completed his

testimony, the ALJ: (1) violated an order from the Council; (2) failed to develop a

full and fair record; and (3) deprived him of due process because he was not able to

cross-examine the VE based on the entire record. We address each argument in

turn.

        The order of the Council directed the ALJ to “[o]btain evidence from a

vocational expert to clarify the effect of the assessed limitations on the claimant’s

occupation base . . . . The hypothetical questions should reflect the specific

capacity/limitations established by the record as a whole.” On appeal of the ALJ’s

decision, the Council itself noted:

        [W]hile the vocational expert did not have access to all testimony
        presented at the hearing, she did provide a response to the
        hypothetical question that was reflective of the residual functional
        capacity determined by the Administrative Law Judge in the hearing
        decision. The hearing process does not require that a vocational

                                          11
      expert interpret testimony, but rather that a vocational expert respond
      to questions from an Administrative Law Judge based on the
      Administrative Law Judge’s interpretation of evidence and testimony.
      The Administrative Law Judge considered all evidence of record,
      including the testimony at the hearing and determined a residual
      functional capacity consistent with the conditions in the hypothetical
      question presented to the vocational expert. Therefore, it is not
      necessary for the vocational expert to hear additional testimony or to
      recontact the vocational expert to provide an additional hypothetical
      question.

      Thus, we find no error in the district court’s determination that the Council’s

order was not violated.

      The ALJ has a duty to fully and fairly develop the record. Ellison v.

Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003). After the VE left the hearing,

Sanabria testified to the following symptoms: dizziness, lightheadedness, inability

to read and the need to lie down frequently. The VE was never informed of this

additional testimony. The function of a VE is to answer hypothetical questions

posed by the ALJ regarding whether a person with specified limitations will be

able to secure employment in the national and local economy. 20 C.F.R.

§ 404.1560(b)(2); see Phillips v. Barnhart, 357 F.3d 1232, 1240 (11th Cir. 2004).

It is the ALJ, not the VE, who is responsible for reviewing the medical findings

and other evidence in order to make the ultimate determination of whether a

claimant meets the statutory definition of disability. See 20 C.F.R. § 404.1527.

Furthermore, the ALJ is not required to pose a hypothetical question assuming

                                         12
limitations that the ALJ does not find credible. Crawford v. Comm’r of Soc. Sec.,

363 F.3d 1155, 1160 (11th Cir. 2004). Therefore, allowing the VE to leave early

did not result in the failure to fully and fairly develop the record.

       Accordingly, we find no error in the ALJ’s decision to allow the VE to leave

the hearing before Sanabria finished his testimony.4

                                    IV. CONCLUSION

For the foregoing reasons, the opinion of the district court is affirmed.

       AFFIRMED.




       4
                Sanabria’s due process claim is meritless. Sanabria cross-examined the VE at the
conclusion of her testimony. He could and did pose hypothetical questions including additional
limitations not recognized by the ALJ.



                                               13
