           Case: 14-11950   Date Filed: 02/26/2015   Page: 1 of 12


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-11950
                         Non-Argument Calendar
                       ________________________

                    D.C. Docket No. 3:12-cv-01114-PDB



JANE E. COSTIGAN,

                                                            Plaintiff-Appellant,

                                   versus

COMMISSIONER, SOCIAL SECURITY ADMINISTRATION,

                                                          Defendant-Appellee.

                       ________________________

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

                            (February 26, 2015)

Before WILSON, JORDAN, and JILL PRYOR, Circuit Judges.

PER CURIAM:
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      Jane E. Costigan appeals the district court’s order affirming the

administrative law judge’s (“ALJ”) denial of disability insurance benefits (“DIB”)

pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). We affirm.

                                          I.

      On December 9, 2009, Costigan, then 55 years old, filed an application for

Social Security Disability (“SSD”) benefits alleging disability commencing on

August 3, 2008. Her claims were denied initially and upon re-consideration. At

her request, a hearing was held before an ALJ in June 2011. At the hearing,

Costigan attributed her disability to chronic neck, back and hip pain, anxiety,

insomnia, and hypertension, all of which interfered with her ability to perform the

duties of her prior work as a restaurant waitress. Medical records considered by

the ALJ reflected treatment for those conditions by Dr. David Kemp, M.D. She

was prescribed various medications including Lortab and Flexeril for her neck and

back pain, Restoril for her insomnia, and Valium for her anxiety. Following a May

2009 visit, Dr. Kemp noted that Costigan’s pain was controlled and that she was

functional on the medications and without side effects. He further noted that

Costigan had taken a new job at a convenience store. Additional notes stated that

her chronic pain was stable, she was functional with medication, and her mood was

stable.




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      The ALJ examined a vocational expert (“VE”) who classified Costigan’s

past work experience as “waitress, informal,” which had a “light” exertion level

and was a semi-skilled position according to the Dictionary of Occupational Titles.

The VE opined that an individual based on Costigan’s hypothetical could not

perform her past work of “waitress, informal,” but that there were other positions

in the national economy that the individual could perform including office helper,

ticket taker, and nut and bolt assembler.

      The ALJ also considered opinions of various other non-examining

consultants, including Dr. Ronald Chase, M.D. and Dr. Martin Falb, Ph.D., who

concluded that Costigan’s anxiety resulted in a mild restriction of activities of daily

living and maintaining social functioning. Upon review of the medical and other

evidence, the ALJ issued an unfavorable decision concluding that Costigan had not

been under a disability within the meaning of the Social Security Act from August

3, 2009, through the date of the decision, July 26, 2011, applying the five-step

sequential evaluation process required by 20 C.F.R. § 416.920(a). In reaching its

conclusion, the ALJ determined that Dr. Kemp’s opinion was not entitled to

controlling or substantial weight, even though he was Costigan’s treating

physician, because it was not well-supported by medically acceptable clinical or

laboratory diagnostic techniques and was inconsistent with his own reports. The

ALJ gave great weight to the opinions of Dr. Falb and Dr. Chase. In addition, the


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ALJ concluded that the overall record indicated that, while Costigan had some

limitations in her physical and mental abilities, she did not have the type of

limitations which would preclude her from performing her past relevant work as a

waitress.

      On appeal to the Appeals Council, Costigan requested that the Council

consider additional evidence, including an MRI of her cervical and lumbar spine

conducted by Dr. J.H. Kim, M.D., a radiologist. The MRI indicated severe

degenerative disc disease. Dr. John C. Stevenson, M.D., an orthopaedic surgeon,

also saw Costigan and reported scoliosis with multi-level degenerative disc

disease.

      The Appeals Council denied Costigan’s request for benefits. The Appeals

Council noted that it looked at the additional medical records, but because the

records post-dated the ALJ’s decision, they did not affect the decision about

whether Costigan was disabled on or before July 26, 2011. Costigan then filed this

appeal. A later decision by the Commissioner found that she was disabled as of

the next day—July 27, 2011.

                                          II.

      Costigan first argues that the ALJ erred by applying incorrect legal standards

in evaluating her subjective pain complaints and her credibility, and that his

credibility findings are not supported by substantial evidence. She argues that Dr.


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Kim’s MRI reports provide substantial evidence to support her credibility

regarding her pain and symptom testimony. She further argues that the ALJ failed

to properly challenge her credibility regarding the chronicity or severity of her pain

because he did not call a medical expert or otherwise produce competent evidence

that her condition would not reasonably be expected to cause her subjective neck

and back pain.

      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.” Crawford

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

(internal quotation marks omitted). “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. If the decision reached is supported by substantial

evidence, we must affirm even if the evidence preponderates against the

Commissioner’s findings. Id.

      A claimant for disability benefits must prove that she is disabled. Moore v.

Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005) (per curiam). There is a five-step

evaluation process to determine whether the claimant is disabled, which is as


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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 past relevant work, [even with] the impairment; and (5) whether there are

significant numbers of jobs in the national economy that the claimant can perform

in light of 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 a claimant attempts to establish a disability through her 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) (per curiam). “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) (per curiam). The ALJ




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must explicitly and adequately articulate his reasons if he discredits subjective

testimony. Id.

      If the record shows that the claimant has a medically determinable

impairment that could reasonably be expected to produce her symptoms, the ALJ

must evaluate the intensity and persistence of the symptoms in determining how

they limit the claimant’s capacity for work. 20 C.F.R. § 404.1529(c)(1). In doing

so, the ALJ must consider 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 must then 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).




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      We find that the ALJ applied the correct legal standard in concluding that

Costigan’s impairment could reasonably be expected to cause her alleged

symptoms, but that her report of pain was subjective and in excess of the medical

evidence of record and other evidence in her file, and, therefore, not credible to the

extent that it was inconsistent with the RFC assessment. See Wilson, 284 F.3d at

1225; 20 C.F.R. §§ 404.1529(c)(1). Second, there was no objective medical

information before the ALJ to otherwise support Costigan’s credibility. See

Wilson, 284 F.3d at 1225; 42 U.S.C. § 423(d)(5)(A); 20 C.F.R. §§ 404.1528(a),

404.1512(b)(1). Third, the ALJ specifically articulated his reasons for discrediting

Costigan’s subjective pain testimony, including inconsistencies regarding side

effects of her medications, her pain rating, and her under-reporting of daily

activities. See Marbury, 957 F.2d at 839; see also 20 C.F.R. § 404.1529(c)(3), (4).

      As to the MRI report by Dr. Kim, a claimant is generally allowed to present

new evidence at each stage of the administrative process. See 20 C.F.R.

§ 404.900(b). The Appeals Council must consider new, material evidence if it

relates to the period on or before the ALJ’s decision, and must then review the case

if the ALJ’s decision is contrary to the weight of the evidence currently of record.

Id. § 404.970(b). When a claimant properly presents new evidence to the Appeals

Council and it denies review, a reviewing court essentially considers the claimant’s

evidence anew to determine whether “that new evidence renders the denial of


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benefits erroneous.” Ingram v. Comm’r of Soc. Sec., 496 F.3d 1253, 1262 (11th

Cir. 2007).

      Because the MRI report by Dr. Kim that Costigan provided to the Appeals

Council did not bear directly on Costigan’s subjective complaint of pain at the time

of the hearing before the ALJ, the new evidence does not render the ALJ’s denial

of benefits erroneous. See Ingram, 496 F.3d at 1262. The information post-dated

the hearing by four to eight months, and thus does not bear directly on Costigan’s

subjective complaint of pain at the time of the hearing. Even if, however, the new

evidence applied to the relevant timeframe, substantial evidence supports the

ALJ’s credibility finding because multiple inconsistencies called into doubt the

reliability of Costigan’s testimony. See Marbury, 957 F.2d at 839. First, although

Costigan testified that her medications caused side effects such as drowsiness, Dr.

Kemp’s records note that she denied side effects. Secondly, although Costigan

reported “burning” and “unbearable” pain, Dr. Kemp noted that her pain was

“stable” and/or “controlled.” And, although Costigan reported that she was unable

to work at all since August 3, 2009, due to her neck and back pain, records showed

that she had worked and been paid after that.

                                        III.

      Costigan next contends that the ALJ erred by rejecting her treating

physician’s (Dr. Kemp’s) opinion. When evaluating an applicant’s claim for social


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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. Crawford, 363 F.3d at 1159; see also Broughton v.

Heckler, 776 F.2d 960, 962 (11th Cir. 1985) (per curiam) (“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.” (internal quotation marks and alternation omitted)).

      We have held that good cause exists when: (1) the treating physician’s

opinion is not bolstered by the evidence; (2) the evidence supports a contrary

finding; or (3) the treating physician’s opinion is conclusory or inconsistent with

the doctor’s own medical records. Lewis v. Callahan, 125 F.3d 1436, 1440 (11th

Cir. 1997). 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. Id.

      The ALJ articulated good cause for rejecting Dr. Kemp’s opinion that

Costigan was disabled to the point that she could not work: (1) his findings were

based on Costigan’s subjective reports and he had no objective medical records on

which to base his opinion; (2) his opinion was not well-supported by medically

acceptable clinical and laboratory diagnostic techniques; and (3) his treatment


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notes were inconsistent with his opinion that Costigan was unable to perform even

sedentary work activity. See Lewis, 125 F.3d 1440. Substantial evidence supports

the ALJ’s stated reasons, first, because the physician’s opinion did not appear to be

based on any objective medical evidence, such as medically acceptable clinical

diagnostic techniques or laboratory findings, and, second, no such evidence was

part of the record before the ALJ. See Crawford, 363 F.3d at 1158; Lewis, 125

F.3d 1440. Instead, he provided only conclusory statements that certain activities

would aggravate Costigan’s chronic neck and low back pain or based his findings

on Costigan’s self-reports of symptoms. Additionally, his opinion that Costigan

was unable to perform even sedentary work activity was contradicted by his own

records. Thus, the ALJ provided good cause and specific reasons for giving little

weight to the treating physician’s opinion, and the ALJ’s reasons are supported by

substantial evidence. Crawford, 363 F.3d at 1158-59; Lewis, 125 F.3d at 1440.

                                        IV.

      Finally, Costigan argues that her due process rights were violated because

she was found to be not disabled as of August 3, 2009 in an order by the ALJ dated

July 26, 2011, but a later decision by the Commissioner found that she was

disabled as of July 27, 2011.

      The fundamental requirement of due process is the right to be heard at a

meaningful time and manner. Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct.


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893, 902 (1976). We have explained that a claimant who sought to reopen a

decision was afforded procedural due process where he “was represented by

counsel at an administrative hearing and had the opportunity to present all

information relevant to the reopening decision, as well as the right to appeal.”

Cherry v. Heckler, 760 F.2d 1186, 1190-91 (11th Cir. 1985).

      Costigan has not shown how she was deprived of an opportunity to be heard

at a meaningful time and in a meaningful manner. See Eldridge, 424 U.S. at 333,

96 S.Ct. at 902. Additionally, Costigan was represented by counsel at her hearing

before the ALJ and has taken full advantage of the appeals process. See Cherry,

760 F.2d at 1190-91. Furthermore, as explained, supra, the ALJ’s decision is

supported by substantial evidence in the record.

      We therefore affirm.

      AFFIRMED.




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