[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No. 17

- 14763 Non

- Argument Calendar

________________________ D.C. Docket No. 1:16

- cv - 00084

- LJA

- TQL

KIMBERLY LUSTGARTEN, Plaintiff

- Appellant,

versus COMMISSIONER OF SOCIAL SECURITY, Defendant

- Appellee.

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

________________________ ( 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

Case: 17-14763 Date Filed: 11/15/2019 Page: 1 of 172 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 i n 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. Ba rnhart , 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

Case: 17-14763 Date Filed: 11/15/2019 Page: 2 of 173 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 cl aimant’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

Case: 17-14763 Date Filed: 11/15/2019 Page: 3 of 174 (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 a n d 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. W e 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.

Case: 17-14763 Date Filed: 11/15/2019 Page: 4 of 175 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 disc ounting that opinion. Winschel , 631 F.3d at 1179 (citation omitted). “Good cause exist s ‘ 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 121 2

. 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 da y ; 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 availa ble times” during the day due to swelling in Case: 17-14763 Date Filed: 11/15/2019 Page: 5 of 176 her l egs 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 th at 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 th e opinion is “well

- supported by medically
accep table clinical and laboratory diagnostic techniques and is not inconsistent

Case: 17-14763 Date Filed: 11/15/2019 Page: 6 of 177 with the other substantial evidence ” in the claimant’s record. Id. § § 404.1527(c)(2) , 416.927(c)(2)

. I f the ALJ does not assign controlling weight to the opinion, the ALJ must co nsider (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 opinio n; (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 relevan t 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 no tes 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.

Case: 17-14763 Date Filed: 11/15/2019 Page: 7 of 178 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, o ur 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 su rgery. 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 brea ks, 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 record s from the first year to 18 months after the alleged onset of her disability. In

Case: 17-14763 Date Filed: 11/15/2019 Page: 8 of 179 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 he r 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 “m ay provide the requisite support for a treating s ource ’ 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

Case: 17-14763 Date Filed: 11/15/2019 Page: 9 of 1710 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 whet her 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

re garding whether Lustgarten could per form 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 determin ation that her testimony about her symptom s 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. S he testified that these symptoms prevented her from sitting in an office chair for more than 15

– 30 minutes and that she had to

Case: 17-14763 Date Filed: 11/15/2019 Page: 10 of 1711 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 tha t 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 e vidence 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 abili ty 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

— wer e 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.

Case: 17-14763 Date Filed: 11/15/2019 Page: 11 of 1712 Dekle’s word for whether Lustgarten accurately described the severity of her symptoms. See id

. And the ALJ had al rea dy found that Dr. Dekle’s opinion about Lustgarten’s limitations

— w hich presumably was based in part on his acceptance of Lustgarten’s subjective description of her symptoms

— w as 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 pe rsuaded. 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 impairment s, 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, t he 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

Case: 17-14763 Date Filed: 11/15/2019 Page: 12 of 1713 herself provided no evidence to support such findings. Although she listed headaches as a medical condition that limited her abi lity 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 f unction r eport describing how her conditions limited her activities, in the p ain q uestionnaire she submitted in support of h er 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

- the

counter pain medicati on for them. I n 2014 , she visited the emergency room complaining of a severe headache , but d uring that same visit she reported that she “rarely ” g ot headaches

. And D r. Dekle did not mention Lustgarten’s headaches at all in his opinion regarding her work

- related limitations.

Case: 17-14763 Date Filed: 11/15/2019 Page: 13 of 1714 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. T he “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 fr om 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

o f headaches in Lustgarten’s medical records were sufficient to show that he considered the information that she provided related to that alleged impairment in

Case: 17-14763 Date Filed: 11/15/2019 Page: 14 of 1715 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 e vidence 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 c laimant submits. ” Washington v. Soc. Sec. Admin. , Com m ’ 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, 126 1 (11th Cir. 2007) (citation omitted) . T he Appe als 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. Wh en “ 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

. Case: 17-14763 Date Filed: 11/15/2019 Page: 15 of 1716 In his supplemental report, Dr. Dekle explain ed that he prescribed a cane for Lustgarten because she wa s at “extreme risk for fa lls,” and he expect ed that she

w ould 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 mo re 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 previou sly 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

Case: 17-14763 Date Filed: 11/15/2019 Page: 16 of 1717 Lustgarten is not disabled is supported by substantial evidence. And because the ALJ’s d isability d etermination 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. Case: 17-14763 Date Filed: 11/15/2019 Page: 17 of 17