Thuong Mennella v. Commissioner of Social Security

Case: 16-15845 Date Filed: 09/22/2017 Page: 1 of 5

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 16-15845 Non-Argument Calendar ________________________

D.C. Docket No. 6:15-cv-00148-JSS

THUONG MENNELLA,

Plaintiff-Appellant,

versus

COMMISSIONER OF SOCIAL SECURITY,

Defendant-Appellee.

________________________

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

(September 22, 2017)

Before TJOFLAT, WILLIAM PRYOR and BLACK, Circuit Judges.

PER CURIAM:  Case: 16-15845 Date Filed: 09/22/2017 Page: 2 of 5

Thuong Mennella appeals the district court’s order affirming the

Commissioner’s denial of her application for disability insurance benefits.

Mennella contends the ALJ erred: (1) by failing to give substantial weight to

treating physician Dr. Pratima Deshmukh’s opinion that Mennella needs to elevate

her right leg after 10-15 minutes of sitting and (2) by determining Mennella’s

subjective complaints were only partially credible. After review, 1 we affirm.

I. DISCUSSION

A. Treating Physician’s Opinion

First, Mennella asserts the ALJ erred by failing to give substantial weight to

Dr. Deshmukh’s opinion that Mennella needs to elevate her right leg after 10-15

minutes of sitting. We disagree.

The testimony of a treating physician must be given substantial or

considerable weight unless good cause is shown to the contrary. Lewis v.

Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997). The ALJ must clearly articulate

reasons for giving less weight to the opinion of a treating physician. Id. Failure to

do so is reversible error. Id. But where the ALJ clearly articulates specific reasons

1 Although the Court reviews the Commissioner’s decision with deference to the factual findings, no such deference is given to the legal conclusions. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). “[W]e review de novo the legal principles upon which the Commissioner’s decision is based.” Id. The resulting decision is reviewed only to determine whether it is supported by substantial evidence. Id. “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) (quotations omitted). “We may not decide the facts anew, reweigh the evidence, or substitute our judgment for that of the [Commissioner].” Id. 2  Case: 16-15845 Date Filed: 09/22/2017 Page: 3 of 5

for failing to give a treating physician’s opinion controlling weight, there is no

reversible error. See Moore v. Barnhart, 405 F.3d 1208, 1212 (11th Cir. 2005).

Good cause exists where the treating physician’s opinion is not bolstered by the

evidence, where the evidence supports a contrary finding, or where the treating

physician’s opinions are conclusory or inconsistent with his own medical records.

Lewis, 125 F.3d at 1440.

Several reasons the ALJ articulated provide good cause for declining to

afford controlling weight to Dr. Deshmukh’s opinion. We need only address one.

As the ALJ observed, Dr. Deshmukh’s opinion that Mennella needs to elevate her

right leg after 10-15 minutes of sitting is not bolstered by the evidence. Mennella

complained to Dr. Deshmukh of numbness in her leg on June 11, 2012. When Dr.

Deshmukh’s office followed up a few days later, Mennella reported the pain had

subsided, but returned when she “overd[id] it.” Nowhere in the treatment notes

does Dr. Deshmukh advise Mennella to elevate her leg. Mennella did not report

pain or weakness in her right thigh during at least four other visits to Dr.

Deshmukh. Mennella also denied numbness and tingling in her legs during

multiple examinations with Dr. Kapil. Finally, Dr. Barber opined Mennella could

sit without difficulty. In light of this evidence, the ALJ did not err in determining

good cause existed to afford Dr. Deshmukh’s opinion less than controlling weight.

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B. Credibility of Mennella’s Testimony

Second, Mennella contends the ALJ’s conclusion that her statements

concerning the intensity, persistence, and limiting effects of her symptoms are not

entirely credible is not supported by substantial evidence. Again, we disagree.

In order to show a disability based on subjective pain testimony, the

claimant must satisfy two parts of a three-part test showing: (1) evidence of an

underlying medical condition; and (2) either (a) objective medical evidence

confirming the severity of the alleged pain, or (b) that the objectively determined

medical condition can reasonably be expected to give rise to the claimed

symptoms. Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002). If the ALJ

discredits the claimant’s subjective testimony, the ALJ must articulate explicit and

adequate reasons for doing so. Id. We will not disturb a clearly articulated

credibility finding supported by substantial evidence. Mitchell v. Comm’r, Soc.

Sec. Admin., 771 F.3d 780, 782 (11th Cir. 2014).

No objective medical evidence confirms the severity of the alleged pain or

shows the removal of a portion of Mennella’s right thigh muscle and tissue could

be expected to give rise to the claimed symptoms. See Wilson, 284 F.3d at 1225.

Mennella’s strength was normal in her right leg each time it was tested, and

although some medical records indicate Mennella walked with a limp, later

medical records indicate her gait was normal. Finally, later medical records

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uniformly indicate her sensation was normal. The ALJ’s clearly articulated

credibility determination was supported by substantial evidence. We will not,

therefore, disturb it. See Mitchell, 771 F.3d at 782.

II. CONCLUSION

The ALJ did not err (1) by failing to give substantial weight to Dr.

Deshmukh’s opinion that Mennella needs to elevate her right leg after 10-15

minutes of sitting or (2) by determining Mennella’s subjective complaints were

only partially credible. Therefore, we affirm.

AFFIRMED.

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