Rita Pate v. Commissioner, Social Security

Filing

Opinion issued by court as to Appellant Rita Pate. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. Motion to remand in full filed by Appellant Rita Pate is DENIED. [7958279-2]. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 16-12244

Date Filed: 01/31/2017

Page: 1 of 8

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-12244
Non-Argument Calendar
________________________
D.C. Docket No. 4:14-cv-02197-VEH

RITA PATE,
Plaintiff-Appellant,
versus
COMMISSIONER, SOCIAL SECURITY ADMINISTRATION,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(January 31, 2017)
Before TJOFLAT, MARCUS and FAY, Circuit Judges.
PER CURIAM:

Case: 16-12244

Date Filed: 01/31/2017

Page: 2 of 8

Rita Pate appeals the district court’s order affirming the final decision of the
Social Security Commissioner (“Commissioner”) partially denying her application
for disability insurance benefits. On appeal, Pate argues that the administrative
law judge (“ALJ”) substituted her own opinion for that of Pate’s treating physician,
Dr. Duane Tippets, by holding that the issue of whether Pate was disabled was
reserved to the Commissioner. As a result, Pate contends that the ALJ erroneously
determined that Pate was no longer entitled to benefits after May 17, 2012.
We deny Pate’s motion to remand. First, under this Court’s precedent, a
later favorable decision on disability benefits is not new evidence sufficient to
support a remand. Second, the ALJ did not substitute her opinion for that of Dr.
Tippets. The ALJ determined that Pate was disabled at the time Dr. Tippets
provided his opinion. Additionally, Dr. Tippets provided his opinion
approximately eight months before the date that the ALJ determined that Pate was
no longer disabled. Consequently, the opinion was not temporally relevant.
Regardless, the ALJ had good cause to impliedly assign Dr. Tippets’s opinion little
weight for the period she determined Pate was no longer disabled, as it was
inconsistent with Dr. Tippets’s treatment notes and the majority of the other
medical evidence. Accordingly, we affirm the Commissioner’s final decision.
We review the ALJ’s decision for substantial evidence, but her application
of legal principles de novo. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir.
2

Case: 16-12244

Date Filed: 01/31/2017

Page: 3 of 8

2005). Substantial evidence is relevant evidence that a reasonable person would
accept as adequate to support a conclusion. Id. We may not reweigh the evidence
or decide facts anew, and must defer to the Commissioner’s decision if substantial
evidence supports it, even if the evidence preponderates against the
Commissioner’s decision. Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir.
2005). When the ALJ denies benefits and the Appeals Council denies review, this
Court reviews the ALJ’s decision as the Commissioner’s final decision. Doughty
v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001). Issues not clearly raised in the
briefs are considered abandoned. Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d
678, 680 (11th Cir. 2014).
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
the reasons for giving less weight to the opinion of a treating physician, and the
failure to do so is reversible error. Id. Where the ALJ clearly articulates specific
reasons for failing to give a treating physician’s opinion controlling weight, no
reversible error exists. See Moore, 405 F.3d at 1212. Good cause arises where the
evidence failed to bolster the doctor’s opinion, the evidence supported a contrary
finding, or the doctor’s opinions were conclusory or inconsistent with his own
medical records. Lewis, 125 F.3d at 1440.
3

Case: 16-12244

Date Filed: 01/31/2017

Page: 4 of 8

According to 20 C.F.R. § 404.1527(d), the determination of whether an
individual is disabled is reserved to the Commissioner, and no special significance
will be given to an opinion on issues reserved to the Commissioner. Section (d)(2)
provides that although the Commissioner will consider opinions from medical
sources on issues such as the RFC and the application of vocational factors, the
final responsibility for deciding those issues is reserved to the Commissioner.
As an initial matter, Pate only contends that the ALJ improperly rejected
Dr. Tippets’s September 2011 opinion. Because Pate did not point to any other
opinion by Dr. Tippets, she abandoned all other issues on appeal. See Sapuppo,
739 F.3d at 680. Notably, Dr. Tippets’s opinion did not mention obesity, kidney
problems, headaches, or sinusitis in any of the legible portions, and Pate does not
assert on appeal that it did. As a result, Pate has not challenged the ALJ’s
determination that those conditions were not disabling. Dr. Tippets’s opinion also
did not mention deep vein thrombosis or blood clots; however, he did state that
Pate needed to keep her legs elevated during the day to prevent blood clots.
Pate correctly stated that the ALJ did not clearly articulate her rationale for
affording less weight to Dr. Tippets’s opinions. The ALJ indicated that she gave
little weight to Dr. Tippets’s opinion because of “additional vocational factors”
that applied; however, she did not identify which factors. Although it is unclear
why the ALJ nominally assigned Dr. Tippets’s opinion minimal weight, because
4

Case: 16-12244

Date Filed: 01/31/2017

Page: 5 of 8

the ALJ determined that Pate was totally disabled before May 17, 2012, any error
was harmless. See Diorio v. Heckler, 721 F.2d 726, 728 (11th Cir. 1983) (holding
that the complained-of error was harmless because it did not have an impact on the
step being challenged).
Additionally, Pate argues that the ALJ failed to identify the medical
improvements occurring after May 17, 2012. This argument is meritless because
the ALJ discussed those improvements extensively.
Pate also argues that the ALJ improperly substituted her opinion for that of
Dr. Tippets by holding that the issue of whether the claimant is disabled is reserved
for the Commissioner. This argument is also meritless because, by law, that
determination is reserved to the Commissioner, and no special significance is given
to an opinion on issues reserved to the Commissioner. See 20 C.F.R. §
404.1527(d).
Moreover, the ALJ did not substitute her opinion for that of Dr. Tippets for
the period before May 17, 2012. Rather, the ALJ stated that she considered that
opinion in light of Dr. Tippets’s relationship as the treating physician and its
consistency with the medical evidence at the time.
Additionally, Dr. Tippets’s September 2011 opinion was inconsistent with
later medical evidence. After Pate had back surgery on November 1, 2011, she
reported “excellent” improvement, that her back pain was “much better,” and that
5

Case: 16-12244

Date Filed: 01/31/2017

Page: 6 of 8

medication helped her joint and muscle pain. After those reports, Pate attended
appointments in January, February, and March 2012, during which her physical
exams were normal and she did not complain of back pain. In April, Pate reported
to Dr. Tippets that she injured her neck in a car accident. Several days later, a
physical exam of her back and neck was normal and she did not complain of neck
pain. By May 17, 2012, Dr. Tippets concluded that Pate’s cervical injury
“resolved.”
As to the period after May 17, 2012, Dr. Tippets’s opinion was less relevant
than contemporaneous medical records and opinions. Pate argues that Dr.
Tippets’s opinion was relevant to her condition after May 17, 2012 because it
demonstrated consistency with Dr. Tippets’s treatment notes on May 17, 2012,
November 26, 2012, and January 30, 2013. However, Dr. Tippets’s September
2011 opinion was inconsistent with later medical evidence and records, including
his own. For example, in the treatment note from May 17, 2012, Dr. Tippets
opined that Pate responded excellently to a home exercise program and that her
cervical strain was healing. He noted that she had full range of motion in her neck,
full strength, and symmetric reflexes, and released her from his care. On August
10, 2012, Pate reported neck pain, joint pain, muscle pain, and decreased range of
motion; however, on August 21, 2012, merely eleven days later, Pate denied back,
neck, or joint pane. Additionally, the treatment note from November 26, 2012
6

Case: 16-12244

Date Filed: 01/31/2017

Page: 7 of 8

provides no reason for the visit and lists no symptoms, complaints, or diagnosis.
The treatment note merely indicates that Dr. Tippets prescribed medication for
pain and a muscle relaxant without indicating the conditions for which she
prescribed the medicine. Finally, the treatment note from January 30, 2013 is
irrelevant because it falls outside the time frame relevant for this appeal. Rather
than supporting Dr. Tippets’s September 2011 opinion, these treatment notes
suggests that his evaluation of her condition changed.
Pate provides no support for her argument that Dr. Tippets’s September
2011 opinion should take precedence over the later opinions, and does not explain
why this Court should consider that opinion as controlling over the later opinions.
Notably, Dr. Tippets saw Pate every three months for the previous ten years
leading up to this appointment, at which he released her from his care. Thus, to the
extent the September 2011 opinion continued to be relevant, substantial evidence
supported the ALJ’s decision to reject it. Furthermore, although the ALJ impliedly
assigned little weight to Dr. Tippets’s September 2011 opinion as to the time after
May 17, 2012, the ALJ extensively discussed Pate’s medical records from after
that date. Following this discussion, the ALJ determined that those records did not
support the limitations in her previous RFC. Therefore, the ALJ impliedly rejected
Dr. Tippets’s September 2011 opinion as to that period due to its inconsistency
with the other medical evidence. This constitutes good cause and substantial
7

Case: 16-12244

Date Filed: 01/31/2017

Page: 8 of 8

evidence supported that determination. See Lewis, 125 F.3d at 1440. As
previously discussed, Dr. Tippets’s September 2011 opinion was inconsistent with
his own treatment notes after that date.
AFFIRMED.

8