WILLIE EARL MCSWAIN, PLAINTIFF-APPELLANT,
v.
OTIS R. BOWEN, SECRETARY OF HEALTH AND HUMAN SERVICES, DEFENDANT-APPELLEE

11th Cir. | 1987-04-13
No. 86-8550
Before GODBOLD, VANCE and JOHNSON, Circuit Judges.
814 F.2d 617 Court of Appeals for the Eleventh Circuit (1987) Negative Treatment
Cited by 97 cases

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Holding

The court held that the Secretary's denial of disability benefits was supported by substantial evidence and that the claimant's arguments on appeal were without merit.


Facts & Procedural History

The claimant appealed the denial of social security disability benefits, alleging total disability due to multiple impairments. The Administrative Law…

The full statement of facts, procedural history, and disposition for this case are member content.

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Opinion of the Court
PER CURIAM:

PER CURIAM:

Willie McSwain appeals from the district court’s judgment affirming the Secretary’s denial of his claim for social security disability insurance benefits and supplemental security income. We affirm.

McSwain says that he was totally disabled as of December 3, 1981 because of osteoarthritis, asthma, epilepsy, cataracts on eyes, and neurotic depression. At the time of his hearing before an AU McSwain was 47 years old, six feet, four inches tall, and weighed 165 pounds. He had a high school education and no vocational training. His past relevant work was that of a shipping/receiving clerk.

The AU found that although McSwain’s impairments prevented him from returning to his past relevant work, he had the residual functional capacity to perform other work that existed in the national economy and was therefore not disabled. The Appeals Council denied McSwain’s request for review, thereby making the AU’s decision the final decision of the Secretary for purposes of appeal. See Chester v. Bowen, 792 F. 2d 129, 131 (11th Cir.1986). The district court affirmed the Secretary’s decision that McSwain was not disabled on the ground it was supported by substantial evidence. McSwain raises many issues on appeal, all of which are without merit.

McSwain contends that his vision impairment met or equalled an impairment in the Secretary’s listing of impairments in 20 C.F.R. Pt. 404, Subpt. P, App. 1, §§ 2.01-.04. Specifically, McSwain asserts that the Secretary failed to consider whether he met the standard for statutory blindness under § 2.04 of the listing of impairments, which is a percentage of overall loss of visual efficiency. A claimant is disabled and entitled to benefits if he has an impairment listed in the listing of impairments. 20 C.F.R. § 404.1520(d) (1986). The claimant bears the burden of proving that he is disabled or blind. Id. § 404.1512(a). McSwain failed to present medical evidence that his loss of visual efficiency met the requirements of § 2.04 of the listing of impairments.

The Secretary did not accord improper weight to the opinions of McSwain’s treating physicians. The opinion of a treating physician is entitled to substantial weight unless “good cause” is shown to the contrary. In evaluating the medical evidence “[t]he Secretary must specify what weight is given to a treating physician’s opinion and any reason for giving it no weight, and failure to do so is reversible error.” MacGregor v. Bowen, 786 F. 2d 1050, 1053 (11th Cir.1986).

The Secretary accorded proper weight to McSwain’s medical evidence. Only Dr. Kellum concluded that McSwain was totally disabled. His opinion, however, is not supported by clinical evidence, and the Secretary properly discounted it. Wheeler v. Heckler, 784 F. 2d 1073, 1075 (11th Cir.1986) (per curiam); Oldham v. Schweiker, 660 F. 2d 1078, 1084 (5th Cir. Unit B 1981).

Dr. Gardner, who treated McSwain at Upson County Hospital in December 1981, did not conclude that McSwain was disabled; he stated that McSwain should be able to return to work in one or two days. More recent Upson County Hospital records do not contradict Gardner’s earlier opinion. The Secretary also properly credited the results of Dr. Dixon’s consultative examination of McSwain’s vision over the opinion of Dr. Hughes, McSwain’s treating ophthalmologist, because Hughes’ report was based on McSwain’s condition prior to cataract surgery in his left eye.

Finally, the reports of Drs. Davis and Simpson are not supported by specific clinical evidence. Also their opinions are not entitled to deference because as one-time examiners they were not treating physicians. Gibson v. Heckler, 779 F. 2d 619, 623 (11th Cir.1986).

The Secretary did not improperly reject McSwain’s subjective complaints of pain. The Secretary must consider a claimant’s subjective testimony of pain if there is evidence of an underlying medical condition and either (1) objective medical evidence confirms the severity of the pain or (2) the medical condition could reasonably be expected to produce the pain. Landry v. Heckler, 782 F. 2d 1551, 1553 (11th Cir.1986). The Secretary properly concluded that there was no substantial objective evidence that McSwain’s pain was so severe that it was disabling and that McSwain’s medical condition, as determined by the Secretary based on substantial evidence, could not reasonably be expected to produce severe pain.

McSwain contends that the Secretary erroneously determined that he could perform “other work” that existed in the national economy. The Secretary relied primarily on the testimony of a vocational expert. McSwain asserts that the vocational expert’s testimony regarding other work that McSwain could perform did not constitute substantial evidence because his testimony was premised on an improper hypothetical posed by the AU. The vocational expert was present during the hearing and had examined all of the written evidence presented. He testified that based on McSwain’s transferable skills, McSwain had the exertional capacity to perform some sedentary work. The ALJ’s hypothetical asked the vocational expert to assume that McSwain had substantial vision impairment and could not work in an area that exposed him extensively to pulmonary irritants.1 Based on these non-exertional requirements, the vocational expert testified that of the jobs he had listed, McSwain still could perform the work of a shipping or receiving clerk2 or self-service gas station attendant. The Secretary’s finding that McSwain could do other work therefore was supported by substantial evidence. See Chaney v. Califano, 588 F. 2d 958, 960 (5th Cir.1979).

Finally, McSwain contends that the Secretary failed to consider McSwain’s multiple impairments in combination. Under the standard in force at the time of the administrative hearing, an AU need not consider the combined effects of unrelated impairments at the severity stage of the evaluation process unless all of the claimant’s impairments were severe. 20 C.F.R. § 404.1522 (1981).

The standard now provides that the Secretary must consider, without any preconditions, the combined effect of all of a claimant’s impairments in determining whether a claimant is disabled. 20 C.F.R. § 404.1523 (1986).

The new standard was not in effect at the time of the administrative hearing, and the Secretary does not apply the new standard retroactively. In any event, the Secretary, relying primarily on the testimony of the vocational expert, considered McSwain’s impairments in combination and concluded that he could do other work. See Chaney, 588 F. 2d at 960.

We have considered McSwain’s other contentions and find them equally without merit.

AFFIRMED.

. The AU did not err in failing to include in his hypothetical restrictions because of epilepsy and depression. McSwain testified'that his epilepsy was substantially controlled by his medication. McSwain also did not present substantial medical evidence of depression, and he admitted at his hearing that his episodic events of depression were generally in response to difficult situations, such as not being able to work.

. The vocational expert’s description of this job differed substantially from McSwain’s past relevant work as a shipping/receiving clerk.


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  • Crawford v. Comm'r OF Soc. Sec., 363 F.3d 1155 (11th Cir. 2004)
    …ford could perform “limited, simple, low-stress, routine work requiring moderate concentration.” The ALJ correctly found that, because Hartig examined Crawford on only one occasion, her opinion was not entitled to great weight. See McSwain v. Bowen, 814 F. 2d 617, 619 (11th Cir.1987) (stating that a doctor who. examines a claimant on only one occasion is not considered a “treating physician”). Moreover, the ALJ’s findings regarding Crawford’s mental capacity were supported by the findings of Dr. Mehta, the…
  • Phillips v. Barnhart, 357 F.3d 1232 (11th Cir. 2004)
    …e that "[i]n order for a VE's testimony to constitute substantial evidence, the ALJ must pose a hypothetical question which comprises all of the claimant's impairments.” Jones v. Apfel, 190 F. 3d 1224, 1229 (11th Cir.1999) (citing McSwain v. Bowen, 814 F. 2d 617, 619-20 (11th Cir.1987)). . Our review in a Social Security case is the same as that of the district court. Martin v. Sullivan, 894 F. 2d 1520, 1529 (11th Cir.1990). "We may not decide the facts anew, reweigh the evidence, or substitute our judgme…
  • Hans Schink v. Comm'r OF Soc. Sec., 935 F.3d 1245 (11th Cir. 2019)
    …source who examined the claimant than one who has not. 21 == Case: 17-14992 Date Filed: 08/27/2019 Page: 22 of 44 only once; for the purposes of our caselaw, “one-time examiners” are not properly considered "treating physicians." McSwain v. Bowen, 814 F.2d 617, 619 (11th Cir. 1987) (per curiam); see also Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1160 (11th Cir. 2004) (per curiam). We have also held that an ALJ was justified in discounting a treating physician's opinion when the physician “saw [the c…

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