           Case: 18-11954   Date Filed: 05/03/2019   Page: 1 of 16


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 18-11954
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 4:17-cv-00040-CDL-MSH



PATRICIA C. COLEY,

                                                            Plaintiff-Appellant,

                                   versus

COMMISSIONER OF SOCIAL SECURITY,

                                                           Defendant-Appellee.

                       ________________________

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

                              (May 3, 2019)

Before TJOFLAT, JORDAN, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Patricia Coley appeals the district court’s order affirming the administrative

law judge’s (“ALJ”) denial of disability insurance benefits, pursuant to 42 U.S.C.

§ 405(g). On appeal, Coley first argues that the ALJ’s conclusion that her

impairments did not meet or medically equal a listed impairment was not

supported by substantial evidence because the ALJ ignored that she required

oxygen on a constant basis and that her sleep apnea led to extreme drowsiness and

narcolepsy. Second, Coley argues that substantial evidence did not support the

ALJ’s conclusion that she had the residual functional capacity (“RFC”) for

sedentary work because the ALJ improperly: (1) determined that her testimony was

not credible; (2) failed to consider all of her medical conditions; (3) considered her

conservative treatment; and (4) gave only limited weight to the opinions of

Dr. Alphonza Vester and Dr. Curtis Clark. Finally, Coley argues that the ALJ was

biased against her based on a disagreement with counsel about the untimely filing

of evidence on the morning of the hearing.

                                          I.

      In social security appeals, we review the decision of an ALJ as the

Commissioner of Social Security’s (“the Commissioner”) 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 de novo the

legal principles upon which the ALJ’s decision is based, but the ALJ’s factual



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findings are conclusive if supported by substantial evidence. Ingram v. Comm’r of

Soc. Sec., 496 F.3d 1253, 1260 (11th Cir. 2007). “Substantial evidence is more

than a scintilla and is such relevant evidence as a reasonable person would accept

as adequate to support a conclusion.” Crawford v. Comm’r of Soc. Sec., 363 F.3d

1155, 1158 (11th Cir. 2004) (quotation marks omitted). Even if the evidence

preponderates against the factual findings made by the Commissioner, we must

affirm if the decision reached is supported by substantial evidence. Ingram, 496

F.3d at 1260. We will not decide facts anew, reweigh the evidence, or substitute

our judgment for that of the Commissioner. Dyer v. Barnhart, 395 F.3d 1206,

1210 (11th Cir. 2005).

      There is a five-step process for determining whether a claimant has met the

burden of proving her disability. Doughty, 245 F.3d at 1278. To receive disability

benefits, the claimant must establish at the first step that she is not undertaking

substantial gainful activity. Id. At step two, the claimant must establish that she

has a severe impairment or combination of impairments. Id. At step three, a

claimant will be considered disabled without consideration of age, education, and

work experience if she establishes that her impairment meets one of the listed

impairments found in the regulations. Id. At step four, if the claimant could not

establish the existence of a listed impairment, she must establish that her

impairment prevents her from performing her past relevant work. Id. Finally, at



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step five, the ALJ assesses the claimant’s residual functional capacity (“RFC”),

age, education, and past work experience to determine whether she can perform

work other than her past relevant work. Id.

      The Listing of Impairments describes, for each of the major body systems,

impairments that are considered severe enough to prevent a person from doing any

gainful activity. 20 C.F.R. § 404.1525(a). To “meet” a listing, a claimant must

have a diagnosis included in the listings and must provide medical reports

documenting that the conditions meet the specific criteria of the listings and the

duration requirement. Id. § 404.1525(a)-(d). To “equal” a listing, the medical

findings must be “at least equal in severity and duration to the criteria of any listed

impairment.” Id. § 404.1526(a). If a claimant has more than one impairment, and

none meets or equals a listed impairment, then the Commissioner reviews the

impairment’s symptoms, signs, and laboratory findings to determine whether the

combination is medically equal to any listed impairment. Id. §§ 404.1526(b)(3),

404.1529(d)(3). The claimant has the burden of proving that an impairment meets

or equals a listed impairment. Barron v. Sullivan, 924 F.2d 227, 229 (11th Cir.

1991).

      “A passing reference to an issue in a brief is not enough, and the failure to

make arguments and cite authorities in support of an issue waives it.” Hamilton v.

Southland Christian Sch., Inc., 680 F.3d 1316, 1319 (11th Cir. 2012).



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      Here, Coley has waived her argument that her sleep apnea and use of oxygen

met or medically equaled a listed impairment because she has not cited any

authority or evidence to support such a conclusion. See Hamilton, 680 F.3d at

1319. In any event, the ALJ did consider both her breathing problems and her

sleep apnea in determining that her impairments did not meet a listed impairment.

First, although the ALJ did not discuss Coley’ s use of oxygen directly, he did

address her respiratory problems and concluded she had not met the listings for

either asthma or COPD. Second, the ALJ explicitly addressed Coley’s

sleep apnea and concluded that it did not meet the listing for sleep apnea. Thus,

Coley’s claim that the ALJ did not consider these impairments is belied by the

record. Further, although the ALJ did not explicitly state or explain why Coley

also failed to show that her medical impairments did not medically equal a listed

impairment, Coley has made no argument about this issue on appeal or indicated

how her medical impairments medically equal a listed impairment.

                                         II.

      If the claimant has a severe impairment that does not meet or equal the

severity of a listed impairment, the ALJ proceeds to the fourth step and assesses

the claimant’s RFC, which measures whether a claimant can perform past relevant



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work, despite her impairments. See 20 C.F.R. § 404.1520(e)-(f). Jobs are

classified as sedentary, light, medium, heavy, and very heavy, depending on the

physical exertion requirements of the work. Id. § 404.1567. Sedentary work can

require lifting up to ten pounds at a time and occasionally lifting or carrying light

items, such as small tools. Id. § 404.1567(a). A certain amount of walking and

standing may also be necessary, even though sedentary jobs are defined as jobs

involving sitting. Id.

      “To support a conclusion that [the claimant] is able to return to her past

work, the ALJ must consider all the duties of that work and evaluate her ability to

perform them in spite of her impairments.” Lucas v. Sullivan, 918 F.2d 1567, 1574

n.3 (11th Cir. 1990). Generally, vocational expert testimony is not necessary to

determine whether a claimant can perform her past relevant work. Id. at 1573 n.2.

The claimant bears the burden of demonstrating that she cannot return to her past

relevant work. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005).

      The ALJ must state with particularity the weight given to different medical

opinions and the reasons for doing so. Winschel v. Comm’r of Soc. Sec., 631 F.3d

1176, 1179 (11th Cir. 2011). However, the ALJ is not required to specifically

address every aspect of an opinion or every piece of evidence in the record. See

Dyer, 395 F.3d at 1211. The ALJ is not required to use particular phrases or

formulations, or cite to particular regulations or cases, as long as the court can



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determine what statutory and regulatory requirements he applied. Jamison v.

Bowen, 814 F.2d 585, 588-89 (11th Cir. 1987).

      The opinion of a treating physician must be given substantial or considerable

weight unless good cause is shown to the contrary. Winschel, 631 F.3d at 1179.

Good cause exists where the treating physician’s opinion was not supported by the

evidence, was conclusory, was inconsistent with the physician’s own medical

records, or where the evidence supported a contrary finding. Id. The ALJ may

discount a medical opinion that appears to be based primarily on the claimant’s

subjective complaints. See Crawford, 363 F.3d at 1159. The ALJ may consider

personal observations of a claimant’s appearance and demeanor when evaluating

symptoms. Norris v. Heckler, 760 F.2d 1154, 1157-58 (11th Cir. 1985). When the

ALJ states specific reasons for declining to give the opinion of a treating physician

controlling weight and those reasons are supported by substantial evidence, there is

no reversible error. Moore, 405 F.3d at 1212.

      The opinion of an examining physician is generally entitled to more weight

than the opinion of a non-examining physician. Broughton v. Heckler, 776 F.2d

960, 961-62 (11th Cir. 1985). The opinion of a non-examining physician does not

constitute the good cause needed to reject a treating physician’s opinion. Id.

Opinions on issues such as whether the claimant is disabled and the claimant’s

RFC are not medical opinions and are reserved to the Commissioner. 20 C.F.R.



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§ 416.927(d). Opinions on issues reserved to the Commissioner, even when

offered by a treating source, are not entitled to any special significance. Id.

§ 416.927(d)(3).

      A three-part “pain standard” applies when a claimant attempts to establish

disability through her own testimony of pain or other subjective symptoms. Wilson

v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002). The pain standard requires

evidence of an underlying medical condition and either (1) objective medical

evidence that confirms the severity of the alleged pain arising from that condition

or (2) that the objectively determined medical condition is of such a severity that it

can be reasonably expected to give rise to the alleged pain. Id. If the medically

determinable impairments reasonably could be expected to cause the alleged

symptoms, the ALJ must evaluate the intensity and persistence of the symptoms to

determine whether the subjective complaints are credible. 20 C.F.R.

§ 416.929(c)(1). A claimant’s daily activities may be considered in evaluating and

discrediting complaints of disabling pain. Harwell v. Heckler, 735 F.2d 1292,

1293 (11th Cir. 1984).

      If the ALJ decides not to credit the disability claimant’s testimony as to her

pain, the ALJ must articulate explicit and adequate reasons for that decision. Foote

v. Chater, 67 F.3d 1553, 1561-62 (11th Cir. 1995). An ALJ’s clearly articulated




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credibility finding supported by substantial evidence in the record will not be

disturbed by a reviewing court. Id. at 1562.

      Although credibility determinations are reserved to the ALJ, we have

rejected the use of “sit and squirm” jurisprudence, where the ALJ creates his own

criteria for measuring pain and considers only objective medical evidence to

evaluate a claimant’s testimony about pain. Johns v. Bowen, 821 F.2d 551, 557

(11th Cir. 1987). Moreover, the ALJ cannot substitute his opinion for that of a

physician or vocational expert. Freeman v. Schweiker, 681 F.2d 727, 731 (11th

Cir. 1982). “[A] claimant’s failure to adhere to prescribed treatment cannot be

grounds for denial of [social security] benefits when the reason for such failure is

beyond the claimant’s control.” Lucas, 918 F.2d at 1574.

      If the claimant cannot do her past relevant work, the ALJ proceeds to the

fifth step of the evaluation to determine whether, given her RFC, age, education,

and work experience, she can complete other work. Wilson, 284 F.3d at 1227.

The testimony of a vocational expert is only required to determine whether the

claimant’s RFC permits her to do other work after she has met her initial burden of

showing that she cannot do past work. Schnorr v. Bowen, 816 F.2d 578, 582 (11th

Cir. 1987). “In order for a vocational expert’s testimony to constitute substantial

evidence, the ALJ must pose a hypothetical question that comprises all of the

claimant’s impairments.” Winschel, 631 F.3d at 1180 (quotation marks omitted).



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      Here, substantial evidence supports the ALJ’s conclusion that Coley retained

the RFC to do sedentary work because the ALJ articulated specific and adequate

reasons for his credibility determination, considered all of her medical

impairments, did not misuse the vocational expert’s testimony, and properly

reduced the weight given to the opinions of Dr. Clark and Dr. Vester.

      As to her argument that the AU failed to apply the proper pain standard after

concluding that her testimony was not entirely credible, the ALJ articulated

specific and adequate reasons for his credibility determination. See Foote, 67 F.3d

at 156 1-62. First, the ALJ correctly noted that the record contained no medically

significant events that corresponded with Coley’s alleged onset date of December

2011. The only medical evidence that Coley submitted from December 2011 was

a follow-up appointment with Dr. DeClue, where no complaint was recorded, her

vitals were not taken, and the notes indicated only that the appointment was for

“unspecified procedures and aftercare.” Second, substantial evidence supported

the ALJ’s conclusion that Coley’s claim that she needed a cane was unpersuasive

because her medical records did not mention the need for a cane. Prior to Dr.

Vester’s examination in October 2015, the only mention of a cane in the record

was by Dr. DeClue in October 2010. Coley’s other records consistently indicated

that she had a normal gait and never mentioned a cane. Although Coley told Dr.

Vester that she had used a cane since 2006 and that it was prescribed by a doctor,



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there is no evidence in the record supporting that statement. Crawford, 363 F.3d at

1159 (stating that the ALJ may discount a medical opinion that appears to be based

primarily on the claimant’s subjective complaints).

      Third, substantial evidence supported the ALJ’s conclusion that Coley’s

claim of difficulty sleeping was unpersuasive because the sleep study conducted

after Coley began her BiPAP regimen showed acceptable sleep efficiency and

Coley reported in April 2015 that she slept all night without difficulty and was

rested and well-refreshed. Fourth, substantial evidence supported the ALJ’ s

conclusion that Coley’s claim that she needed 24-hour care from her husband was

unpersuasive because Coley also testified that her husband worked 16 hours a

week and was not with her every day. Fifth, substantial evidence supported the

ALJ’s conclusion that Coley’s testimony that she was only comfortable when lying

in bed with a heating pad was unpersuasive because Coley also testified that she

often went with her husband to work, where she sat in a chair and read magazines,

watched TV, or fell asleep. Harwell, 735 F.2d at 1293 (stating that claimant’s

daily activities may be considered in evaluating and discrediting complaints of

disabling pain). Finally, substantial evidence supported the ALJ’ s conclusion that

Coley’s testimony regarding extreme fatigue was unpersuasive because, with a

couple of exceptions, Coley consistently denied over-sedation or side effects from

her medications in the medical records. Moreover, the ALJ properly considered



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that Coley stayed awake at the hearing and had no difficulties answering the

questions. Norris, 760 F.2d at 1157-58 (stating that the ALJ may consider personal

observations of a claimant when evaluating symptoms). Accordingly, the

ALJ provided a clearly articulated credibility finding with substantial supporting

evidence. See Foote, 67 F.3d at 1562.

      As to Coley’s argument that the ALJ improperly failed to consider her

history of pulmonary emboli, edema, hypertension, and deep vein thrombosis in

his RFC, the ALJ did explicitly consider some of those medical issues. The ALJ

specifically concluded that an RFC for sedentary work accommodated Coley’s

hypertension and history of pulmonary emboli. Although the ALJ did not

specifically mention edema and deep vein thrombosis in his RFC analysis, he

included these in the list of Coley’s impairments during step two of the sequential

evaluation. Substantial evidence supported the ALJ’s failure to include these in his

RFC analysis because there was no evidence in the record indicating that Coley

was limited by either edema in her legs or her history of deep vein thrombosis.

Although the medical records routinely indicated that Coley had edema in her

lower extremities, they never expanded on any effects the edema had on Coley.

Similarly, all medical tests for deep vein thrombosis in the record were negative,

leaving only a single 2007 occurrence. As for Coley’s argument that the ALJ

misused testimony from the vocational expert because his initial hypothetical at the



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hearing did not include symptoms of drowsiness and extreme fatigue, the

testimony of a vocational expert was only required at step five of the sequential

evaluation, after she had met her initial burden of showing that she could not do

past work at step four. Schnorr, 816 F.2d at 582. The ALJ concluded that Coley

could do past work and never reached step five of the analysis. Thus, the

vocational expert’s testimony regarding the ALJ’s hypothetical was not relevant to

the RFC determination.

      Finally, as to Coley’s argument that the ALJ improperly reduced the weight

given to the opinions of Dr. Clark and Dr. Vester, the ALJs decision to do so was

supported by substantial evidence. First, substantial evidence supported the ALJ’s

decision to give only some weight to Dr. Clark’s opinion that Coley could not

work due to shortness of breath, a history of pulmonary emboli, and osteoarthritis

because the medical tests in the record relating to those issues were largely

unremarkable or denoted as “mild.” Winschel, 631 F.3d at 1179 (stating that good

cause exists to give less than substantial weight to a treating physician’s opinion

when it was not supported by the evidence). Second, substantial evidence

supported the ALJ’s decision to give little weight to Dr. Vester’s opinion regarding

Coley’s limitations because it was not supported by the evidence, which instead

supported a contrary finding. Winschel, 631 F.3d at 1179. Although Dr. Vester

applied extensive limitations to Coley, the medical records indicated that she



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usually had a normal gait, had only minimal back treatment and mild MRJ

findings, and had full hand grip strength and upper extremity range of motion.

To the extent that Coley argues that the ALJ improperly considered her

conservative treatment history because her doctors recommended against more

aggressive treatment, given her history of pulmonary emboli, the medical records

did not indicate that Coley had such a limitation. Similarly, to the extent that

Coley argues that the ALJ improperly considered her conservative treatment

history because she could not afford more aggressive treatment, the medical

records did not indicate that more aggressive treatment was necessary.

Specifically, once beginning her BiPAP regimen for her sleep apnea, she reported

that she slept through the night and was rested and well-refreshed. After beginning

to take pain medication for her back, Coley reported that she was feeling better.

Thus, the ALJ did not inappropriately consider Coley’s conservative treatment

history.

                                         III.

      The Social Security Act requires that a claimant’s hearing be both full and

fair. Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996). The ALJ plays a

crucial role in the disability review process and must both develop a full and fair

record and carefully weigh the evidence, giving individualized consideration to

each claim. Id. at 1401. Because the ALJ’s decision will typically be the final



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word, given the standard of review, the ALJ’s impartiality is “integral to the

integrity of the system.” Id. Thus, the ALJ must not conduct a hearing if he is

prejudiced or partial with respect to any party. Id. at 1400 (quoting 20 C.F.R.

§ 404.940). A presumption exists that judicial and quasi-judicial officers such as

ALJs are unbiased. See Schweiker v. McClure, 456 U.S. 188, 195 (1982). The

claimant may rebut this presumption by a showing of conflict of interest or some

other specific reason for disqualification, but generalized assumptions are

insufficient. Id. at 195-96. The party asserting a disqualifying interest bears the

ultimate burden of establishing that interest. Id. at 196.

      Here, Coley has failed to demonstrate that the ALJ was biased in handling

her case. Coley has not demonstrated that the ALJ failed to develop a full and fair

record or carefully weigh the evidence. Miles, 84 F.3d at 1401. Coley argues that

the ALJ failed to properly weigh the medical opinions in the record, but, as noted

above, the ALJ did not err in the weight assigned to the Dr. Vester’s medical

opinion. Further, although the ALJ showed some annoyance at counsel's late filing

of medical records at the hearing, he assured Coley that he would consider

everything that was in the record. Coley points to no other specific instance

of bias in her case, and generalized assumptions that the ALJ must have been

biased because he found that she was not disabled are not enough to overcome the




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presumption that the ALJ was unbiased. Schweiker, 456 U.S. at 195-96.

Accordingly, she has not established that the ALJ was biased against her.

      For the foregoing reasons, the judgment of the district court is

      AFFIRMED.




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