[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 17-14763

Non-Argument Calendar

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D.C. Docket No. 1:16-cv-00084-LJA-TQL

KIMBERLY LUSTGARTEN, 

 Plaintiff-Appellant,

versus

COMMISSIONER OF SOCIAL SECURITY, 

 Defendant-Appellee.

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Appeal from the United States District Court

for the Middle District of Georgia

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(November 15, 2019)

Before NEWSOM, GRANT, and FAY, Circuit Judges.

PER CURIAM: 

Kimberly Lustgarten appeals the district court’s order affirming the 

Commissioner of Social Security’s denial of her applications for disability 

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insurance benefits and supplemental security income. On appeal, Lustgarten 

argues that the administrative law judge (ALJ) erred in assigning limited weight to 

her primary care physician’s opinions, finding that her subjective complaints of 

pain were not entirely credible, and failing to consider her headaches as a separate 

impairment. She also argues that the Appeals Council erred in denying review of 

the ALJ’s ruling because it failed to properly consider newly submitted evidence. 

After a thorough review of the briefing and administrative record, we affirm.

I.

“We review the Commissioner’s factual findings with deference and the 

Commissioner’s legal conclusions with close scrutiny.” Doughty v. Apfel, 245 

F.3d 1274, 1278 (11th Cir. 2001). We will affirm if the Commissioner applied the 

correct legal standards and his decision is supported by substantial evidence. See 

Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002) (per curiam). 

“Substantial evidence is something ‘more than a mere scintilla, but less than a 

preponderance.’” Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005) (per 

curiam) (citation omitted). It is “such relevant evidence as a reasonable person 

would accept as adequate to support a conclusion.” Moore v. Barnhart, 405 F.3d 

1208, 1211 (11th Cir. 2005) (per curiam). Under this limited standard of review, 

we will not make factual findings or credibility determinations in the first instance

or re-weigh evidence. Id. We defer to the ALJ’s decision if it is supported by 

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substantial evidence, even if the evidence preponderates against it. Crawford v. 

Comm’r of Soc. Sec., 363 F.3d 1155, 1158–59 (11th Cir. 2004) (per curiam). 

Where, as here, the Appeals Council denies review of an unfavorable decision by 

the ALJ, we review the ALJ’s ruling as the final decision of the Commissioner. 

Doughty, 245 F.3d at 1278.

II.

Social Security regulations outline a five-step process that the ALJ must use 

to determine whether a claimant is disabled: first, the ALJ considers the claimant’s 

work activity; second, if the claimant is not engaged in substantial gainful activity, 

the ALJ considers the medical severity of her impairments; third, if the claimant 

has a severe impairment or combination of impairments of sufficient duration, the 

ALJ must determine whether that impairment or combination of impairments 

meets or equals one of the impairments listed in 20 C.F.R. § 404, Subpart P, 

Appendix 1; fourth, if not, the ALJ must determine whether the claimant can 

perform her past relevant work in light of her residual functional capacity; and 

fifth, if the claimant cannot perform past relevant work, the ALJ must determine 

whether she can perform other work found in the national economy commensurate 

with her age, education, and experience. 20 C.F.R. §§ 404.1520(a)(4)(i)–(v), 

416.920(a)(4)(i)–(v); see Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 

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(11th Cir. 2011). If, as the ALJ found here, the claimant can perform past relevant 

work, then she is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). 

Lustgarten does not dispute the ALJ’s findings that she had not engaged in 

substantial gainful activity since her alleged onset date of November 1, 2011; that 

she did have severe impairments—namely, obesity, degenerative disc disease of 

the lumbar and cervical spine, degenerative joint disease of the knees, and 

hypertension—and that none of her impairments were equivalent in severity to a 

listed impairment. Instead, she focuses on step four of the disability analysis and 

the ALJ’s finding that she had the residual functional capacity to perform a limited 

range of sedentary work, including her past relevant work as a telemarketer.1

 

Specifically, she argues that the ALJ improperly discounted the opinion of one of 

her treating physicians and her own testimony regarding her limitations and 

improperly failed to consider her headaches as a separate impairment. We address 

each argument in turn.

III.

A.

At step four of the sequential analysis, the ALJ must first determine the 

claimant’s residual functional capacity, and then decide whether she has the ability 

1 We presume the parties’ familiarity with the facts and recite only those necessary to the 

resolution of the appeal.

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to return to her past relevant work. Phillips v. Barnhart, 357 F.3d 1232, 1238 

(11th Cir. 2004). In determining a claimant’s residual functional capacity, the ALJ 

must consider all relevant evidence, including medical opinion evidence. See id.; 

20 C.F.R. § 404.1545(a)(3). The ALJ must give a treating physician’s medical 

opinion “substantial or considerable weight,” unless the ALJ clearly articulates 

good cause for discounting that opinion. Winschel, 631 F.3d at 1179 (citation 

omitted). “Good cause exists ‘when the: (1) treating physician’s opinion was not 

bolstered by the evidence; (2) evidence supported a contrary finding; or (3) treating 

physician’s opinion was conclusory or inconsistent with the doctor’s own medical 

records.’” Id. (citation omitted). When the ALJ articulates specific reasons for 

failing to give the opinion of a treating physician controlling weight and those 

reasons are supported by substantial evidence, we will not reverse the 

Commissioner’s decision. Moore, 405 F.3d at 1212. 

One of Lustgarten’s treating physicians, Andrew Dekle, M.D., completed a 

medical source statement in which he opined (as relevant here) that Lustgarten

could stand and walk for less than 2 hours and sit for a total of about 2 hours 

during an 8-hour work day; she would need to change positions and walk around 

every 15 minutes; she would have to rest, recline, or lie down at unpredictable 

intervals “most of the time” during an 8-hour shift; and she would need to elevate 

her legs above her heart at “all available times” during the day due to swelling in 

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her legs and feet. Dr. Dekle also stated that Lustgarten did not need a cane or 

walker to walk, but he issued a prescription for a cane—without an accompanying 

office note—about a week later. 

The ALJ found that Dr. Dekle’s opinion was due “little weight” because it 

was “inconsistent with the longitudinal evidence of record.” The ALJ cited to 

multiple other medical evaluations from Lustgarten’s emergency room, hospital, 

and primary care physician visits which stated that Lustgarten had normal range of 

motion in her arms and legs, normal motor strength and sensory responses, walked 

with a steady gait, and had no swelling in the feet and lower legs. The ALJ 

recognized that Dr. Dekle had prescribed a cane for Lustgarten but noted that there 

was no indication that she would need a cane for 12 months or more. The ALJ 

also noted that Lustgarten’s activities of daily living, which included laundry, light 

housekeeping, preparing simple meals, driving, shopping, and babysitting, as well 

as periodic work activity, were inconsistent with Dr. Dekle’s opinion about the 

extent of her work limitations. 

Lustgarten claims that the ALJ failed to apply the tests for assigning weight 

to a treating physician’s opinion set out in 20 C.F.R. §§ 404.1527(c)(2) and 

416.927(c)(2). Under these regulations, the ALJ gives “controlling weight” to a 

treating physician’s opinion if the opinion is “well-supported by medically 

acceptable clinical and laboratory diagnostic techniques and is not inconsistent 

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with the other substantial evidence” in the claimant’s record. Id.

§§ 404.1527(c)(2), 416.927(c)(2). If the ALJ does not assign controlling weight to 

the opinion, the ALJ must consider (1) whether the doctor has examined or treated 

the claimant; (2) the length, nature, and extent of the doctor’s relationship with the 

claimant or the frequency of examination; (3) the amount of evidence and 

explanation supporting the doctor’s opinion; (4) the consistency of the opinion 

with the record as a whole; (5) the doctor’s specialization; and (6) other factors 

such as how familiar the doctor is with other evidence in the claimant’s case 

record. Id. §§ 404.1527(c), 416.927(c). 

Lustgarten’s argument that the ALJ did not engage in this analysis is flatly 

contradicted by the ALJ’s written decision. The ALJ explicitly stated that he had 

considered the opinion evidence in accordance with 20 C.F.R. §§ 404.1527 and 

416.927 and relevant Social Security Rulings, and Lustgarten has not pointed to 

any evidence in the decision or in the record as a whole to contradict that 

statement. Moreover, the ALJ’s detailed discussion of Lustgarten’s medical 

records, including Dr. Dekle’s treatment notes and disability opinion, makes it 

clear that the ALJ did consider the factors above, including the nature, duration, 

and frequency of Dr. Dekle’s examination and treatment of Lustgarten, his 

specialty as a primary care physician, the somewhat conclusory nature of Dr. 

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Dekle’s disability opinion, and the conflicts between Dr. Dekle’s opinion and the 

record as a whole.

As to the ALJ’s determination that Dr. Dekle’s opinion was inconsistent 

with Lustgarten’s other medical records, our review confirms the ALJ’s 

assessment. Although Lustgarten’s medical records contain a handful of 

references to lower leg or foot swelling, most of those references were before her 

alleged disability onset date, in the period leading up to or during the recovery 

from her foot surgery. Aside from one note to elevate her feet for two days due to 

swelling and one note to elevate her right foot after surgery—both before the 

alleged disability onset date—no examining physician other than Dr. Dekle 

recommended that Lustgarten keep her feet elevated or noted any limitation on her 

ability to sit and do sedentary work. The vast majority of Lustgarten’s many 

examination notes after her alleged onset date state that she has no swelling, with 

normal strength and range of motion. She was observed to walk without difficulty

and with a steady gait. And two consulting physicians who reviewed Lustgarten’s 

medical records in 2013 concluded that, with normal breaks, Lustgarten could sit, 

stand, and walk for six hours during an eight-hour workday. The ALJ 

appropriately allocated “some weight” to the consulting physicians’ opinions, 

which were medical interpretations and summaries of Lustgarten’s examination 

records from the first year to 18 months after the alleged onset of her disability. In 

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short, the ALJ adequately articulated good cause for discounting Dr. Dekle’s 

opinion, and the ALJ’s opinion that Lustgarten had the residual functional capacity 

to perform her past relevant work as a telemarketer is supported by substantial 

evidence.

Lustgarten argues that the ALJ should have sought additional information 

from Dr. Dekle about his opinion, and specifically about why he prescribed a cane 

and how long he expected Lustgarten to use it, before assigning “little weight” to 

Dr. Dekle’s opinion. Lustgarten cites Social Security Ruling 96-2p, which stated 

in part that “in some instances,” additional record development “may provide the 

requisite support for a treating source’s medical opinion that at first appeared to be 

lacking or may reconcile what at first appeared to be an inconsistency between a 

treating source’s medical opinion and the other substantial evidence in the case 

record.” SSR 96-2p, 61 Fed. Reg. 34490, 34491 (July 2, 1996), rescinded effective 

March 27, 2017, 2017 WL 3928305 (March 27, 2017).

Contrary to Lustgarten’s arguments, this Ruling does not mandate that the 

ALJ recontact a treating physician before assigning weight to the physician’s 

opinion. The Ruling states that ordinarily, “development should not be undertaken 

for the purpose of determining whether a treating source’s medical opinion should 

receive controlling weight if the case record is otherwise adequately developed.” 

Id. Here, the record was sufficiently well developed for the ALJ to determine that 

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Dr. Dekle’s opinion about Lustgarten’s work limitations was an outlier and 

inconsistent with other physicians’ examinations and Lustgarten’s daily activities, 

regardless of whether Dr. Dekle intended the cane prescription to be permanent. 

And in any event, the additional information later provided by Dr. Dekle to the 

Appeals Council—that he prescribed the cane because Lustgarten was at risk for 

falls, that he expected her to use the cane for at least 12 months, and reiterating his 

opinion that she would need to keep her legs elevated for most of the day to avoid 

leg swelling—added nothing significant to the information already before the ALJ 

regarding whether Lustgarten could perform the work of a telemarketer. Even if 

the ALJ had erred in failing to recontact Dr. Dekle, therefore, any such error would 

have been harmless. Cf. Diorio v. Heckler, 721 F.2d 726, 728 (11th Cir. 1983).

B.

Lustgarten also challenges the ALJ’s determination that her testimony about 

her symptoms was not entirely credible. Generally, “credibility determinations are 

the province of the ALJ, and 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). Here, Lustgarten testified that she has 

constant pain in her back, neck, and knees, and that she could walk only 50 or 100 

feet before becoming short of breath. She testified that these symptoms prevented 

her from sitting in an office chair for more than 15–30 minutes and that she had to 

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spend 6–7 hours in an 8-hour day either in a recliner or propped up on the couch. 

After discussing Lustgarten’s medical records, the ALJ found that Lustgarten’s 

“medically determinable impairments could reasonably be expected to cause the 

alleged symptoms” but that her “statements concerning the intensity, persistence 

and limiting effects of these symptoms are not entirely credible.” 

Substantial evidence supports this determination. As discussed above, 

Lustgarten’s medical records from the four-year period between her alleged onset 

date and the date of the ALJ’s decision show that no physician other than Dr. 

Dekle noted any limitation on her ability to sit or recommended that she elevate 

her feet for most of the day, every day. Although examination notes from that 

period show that she occasionally complained of pain in her back, neck, or knees,

she was most often noted to have normal motor strength and range of motion. And 

as the ALJ pointed out, Lustgarten’s daily activities during the same time period—

laundry, light cooking and housecleaning, driving, shopping, babysitting, and 

periods of work activity—were also inconsistent with Lustgarten’s severe 

characterization of her physical limitations. 

Lustgarten contends that the ALJ should have relied on Dr. Dekle’s 

statement that he had no reason to believe that Lustgarten was malingering or 

embellishing her symptoms as support for her credibility. But the ALJ was 

required to make his own credibility determination; he did not have to take Dr. 

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Dekle’s word for whether Lustgarten accurately described the severity of her 

symptoms. See id. And the ALJ had already found that Dr. Dekle’s opinion about 

Lustgarten’s limitations—which presumably was based in part on his acceptance 

of Lustgarten’s subjective description of her symptoms—was inconsistent with her 

medical records as a whole. Because substantial evidence supports the ALJ’s 

determination that Lustgarten’s physical limitations were not as extensive as she 

alleged, we will not disturb the ALJ’s credibility determination. See id.

C.

Lustgarten argues that the ALJ failed to properly evaluate her headaches 

during his disability analysis because he failed to discuss some reports of 

headaches in her medical records and did not acknowledge a radiologist’s report of 

a sinus cyst and possible brain microvasculopathy. We are not persuaded. 

In determining whether a claimant can perform her past relevant work 

despite her impairments, the ALJ must consider a claimant’s “entire medical 

condition,” including all impairments, whether severe or not. Jamison v. Bowen, 

814 F.2d 585, 588 (11th Cir. 1987); see 20 C.F.R. §§ 404.1520(e), 404.1545, 

416.920(e), & 416.945. Here, the ALJ considered the reports of headaches in 

Lustgarten’s medical records when making his determination regarding her 

residual functional capacity. The ALJ did not designate her headaches as a severe 

impairment or find that they impacted Lustgarten’s ability to work, but Lustgarten 

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herself provided no evidence to support such findings. Although she listed 

headaches as a medical condition that limited her ability to work in her initial 

Disability Report, she did not describe the frequency or severity of her headaches, 

nor did she describe how her headaches affected her ability to work or engage in 

daily activities. She provided no additional information about her headaches in 

subsequent Disability Reports submitted during the appeal process, and she did not 

even mention headaches in the function report describing how her conditions 

limited her activities, in the pain questionnaire she submitted in support of her 

claim, or in her testimony at the hearing before the ALJ. 

Lustgarten’s medical records from the alleged disability period are similarly 

uninformative regarding any impact of her headaches on her ability to work. Her 

records show that she only rarely reported having a severe headache and reported 

having fewer headaches over time. In early 2011 (before her disability onset date), 

Lustgarten reported that her headaches were a chronic, daily problem. In 2012, she 

reported one migraine headache lasting 12 days, but she later told her primary care 

physician that she got headaches only once or twice a week and took over-thecounter pain medication for them. In 2014, she visited the emergency room 

complaining of a severe headache, but during that same visit she reported that she 

“rarely” got headaches. And Dr. Dekle did not mention Lustgarten’s headaches at 

all in his opinion regarding her work-related limitations. 

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To the extent that Lustgarten contends that the radiologist’s report of a sinus 

cyst and possible brain microvasculopathy should have been considered evidence 

that her headaches were disabling, we disagree. The “mere existence” of an 

impairment provides no information about whether or to what extent the 

impairment limits the claimant’s ability to work, nor does it undermine the ALJ’s 

disability determination. Moore, 405 F.3d at 1213 n.6; see McCruter v. Bowen, 

791 F.2d 1544, 1547 (11th Cir. 1986) (“the ‘severity’ of a medically ascertained 

disability must be measured in terms of its effect upon ability to work”).

A claimant applying for disability benefits bears the burden of proving that 

she is disabled, and to do so, she must produce evidence supporting her claim. See 

20 C.F.R. § 404.1512; Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003) 

(per curiam). “At step four, the claimant carries a heavy burden of showing that 

his impairment prevents him from performing his past relevant work.” 

Washington v. Comm’r of Soc. Sec., 906 F.3d 1353, 1359 (11th Cir. 2018). 

Lustgarten presented the ALJ with no medical evidence showing that her 

headaches caused or contributed to any limitation on her ability to work. And 

when asked to describe the symptoms that limited her daily activities, she did not 

mention headaches at all. Under the circumstances, the ALJ’s references to reports 

of headaches in Lustgarten’s medical records were sufficient to show that he 

considered the information that she provided related to that alleged impairment in 

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determining her residual functional capacity. 

IV.

Last, Lustgarten contends that the Appeals Council erred by failing to 

properly consider a supplemental report from Dr. Dekle that she submitted with her 

administrative appeal. The Appeals Counsel considered the evidence that 

Lustgarten submitted but found that the new evidence did not provide a basis for 

reversing the ALJ’s decision. 

“The Appeals Council has the discretion not to review the ALJ’s denial of 

benefits. But the Appeals Council ‘must consider new, material, and 

chronologically relevant evidence’ that the claimant submits.” Washington v. Soc. 

Sec. Admin., Comm’r, 806 F.3d 1317, 1320 (11th Cir. 2015) (per curiam) (citations 

omitted). Review of the ALJ’s decision is required if the ALJ’s “action, findings, 

or conclusion is contrary to the weight of the evidence currently of record.” 

Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1261 (11th Cir. 2007)

(citation omitted). The Appeals Council is not required to “give a detailed 

rationale for why each piece of new evidence submitted to it does not change the 

ALJ’s decision.” Mitchell, 771 F.3d at 784. When “a claimant properly presents 

new evidence to the Appeals Council, a reviewing court must consider whether 

that new evidence renders the denial of benefits erroneous.” Ingram, 496 F.3d at

1262. 

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In his supplemental report, Dr. Dekle explained that he prescribed a cane for 

Lustgarten because she was at “extreme risk for falls,” and he expected that she 

would need the cane for 12 months or longer because “her disease processes are 

not reversible.” He also agreed that Lustgarten’s obesity exacerbated her 

degenerative disc disease and degenerative joint disease, and that her obesity alone 

could potentially result in shortness of breath, fatigue, and difficulty stooping, 

bending, and reaching. He then reiterated his opinion that Lustgarten would have 

difficulty sitting for six hours in an eight-hour day and that sitting for more than 

two hours without elevating her legs above her heart would precipitate swelling. 

Treatment records attached to the supplemental report showed that Lustgarten 

complained of low back pain and tenderness in May and June 2014. 

This evidence did not render the ALJ’s denial of benefits erroneous. Again, 

Lustgarten failed to show that any need for a cane would prevent her from 

returning to her past relevant work of telemarketing. And Dr. Dekle’s other

statements were cumulative of the opinions previously submitted to the ALJ. The 

information in Dr. Dekle’s supplemental report was therefore not “new” and 

“material.” See Washington, 806 F.3d at 1323 n.9. 

V.

The ALJ applied the correct legal standards in evaluating Lustgarten’s 

applications for Social Security and disability benefits, and his determination that 

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Lustgarten is not disabled is supported by substantial evidence. And because the 

ALJ’s disability determination was not contrary to the weight of the evidence

before the Appeals Council, the Appeals Council did not err in declining to review 

the ALJ’s decision. We therefore affirm.

AFFIRMED.

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