Griffie v. Social Security Administration, Commissioner

Filing 16

MEMORANDUM OPINION AND ORDER DISMISSING CASE that the decision of the Commissioner is AFFIRMED and costs are taxed against claimant as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 10/21/2015. (AHI )

FILED
2015 Oct-21 AM 10:06
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
DEBORAH ELAINE GRIFFIE,
Claimant,
vs.
CAROLYN W. COLVIN, Acting
Commissioner, Social Security
Administration,
Defendant.

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Case No. 2:14-CV-1991-CLS

MEMORANDUM OPINION AND ORDER
Claimant, Deborah Elaine Griffie, commenced this action on October 16, 2014,
pursuant to 42 U.S.C. § 405(g), seeking judicial review of a final adverse decision of
the Commissioner, affirming the decision of the Administrative Law Judge (“ALJ”),
and thereby denying her claim for a period of disability, disability insurance, and
supplemental security income benefits.
The court’s role in reviewing claims brought under the Social Security Act is
a narrow one. The scope of review is limited to determining whether there is
substantial evidence in the record as a whole to support the findings of the
Commissioner, and whether correct legal standards were applied. See Lamb v.
Bowen, 847 F.2d 698, 701 (11th Cir. 1988); Tieniber v. Heckler, 720 F.2d 1251, 1253
(11th Cir. 1983).

Claimant contends that the Commissioner’s decision is neither supported by
substantial evidence nor in accordance with applicable legal standards. Specifically,
claimant asserts that the ALJ improperly considered the opinion of her treating nurse
practitioner and improperly applied the Eleventh Circuit’s standard for evaluating
subjective complaints of pain. Upon review of the record, the court concludes that
these contentions lack merit, and the Commissioner’s ruling is due to be affirmed.
A.

Treating Nurse Practitioner
Janet McCary, CRNP, claimant’s treating nurse practitioner at Cooper Green

Clinic, completed a Physical Capacities Evaluation form on November 14, 2011. She
indicated that claimant could lift and/or carry ten pounds occasionally or less
frequently. She could sit for a total of two hours during an eight-hour work day, but
she could not stand or walk at all.

Claimant could frequently perform fine

manipulation, but could only occasionally push, pull, climb, balance, perform gross
manipulation, bend, stoop, and reach. She could not operate motor vehicles or work
around hazardous machinery, dust, allergens, or fumes.1
Ms. McCary also completed a Clinical Assessment of Pain form on November
15, 2011. She indicated that pain was present for claimant, but did not prevent
functioning in everyday activities or work. Physical activity would greatly increase
claimant’s pain to such a degree as to cause distraction from or total abandonment of
1

Tr. 302.
2

tasks. Medication side effects were not an issue because claimant did not take any
medications due to a fear of not waking up. Ms. McCary did not respond either “yes”
or “no” to the question “Does this patient have an underlying medical condition
consistent with the pain he or she experiences?” Instead, she made a handwritten
notation that claimant had bilateral low back and knee pain.2
Finally, Ms. McCary completed a Clinical Assessment of Fatigue/Weakness
form on November 15, 2011. She indicated that claimant experienced fatigue and/or
weakness to such an extent as to negatively affect the adequate performance of daily
activities or work. Physical activity would greatly increase claimant’s fatigue and/or
weakness to such a degree as to cause total abandonment of tasks. Once again, Ms.
McCary noted that medication side effects were not an issue because claimant was
not taking any medications due to a fear of not waking up. Ms. McCary indicated
that claimant did have an underlying medical condition consistent with the fatigue
and/or weakness she experienced. She wrote that those conditions included anxiety,
paranoia, and major depressive disorder, and she noted that claimant had been
referred to psychiatry and had her first appointment with a clinical social worker two
days later, on November 17.3
The ALJ afforded Ms. McCary’s opinion, which would have supported a
2

Tr. 303-04.

3

Tr. 305-06.
3

finding of disabling limitations, only little weight. She reasoned:
Ms. McCary’s statement is internally inconsistent as she opined the
claimant had pain but the pain did not prevent functioning in everyday
activities or work . . . . She then opined physical activity greatly
increased pain to such a degree as to cause distraction from tasks or total
abandonment of tasks . . . . However, Ms. McCary failed to provide any
diagnosis that would reasonably cause the claimant’s pain . . . .
Additionally, the claimant takes no pain medication . . . . Finally, she
reported the claimant experienced fatigue and weakness that would
cause abandonment of tasks . . . . Ms. McCary based the claimant’s
fatigue on her mental health complaints but the claimant had not
received any treatment for her mental impairments at the time of her
opinion . . . . Accordingly, there is no support other than the claimant’s
subjective complaints for the extreme limitations provided by Ms.
McCary and little weight is given to her opinion.4
Claimant asserts that it was improper for the ALJ to reject Ms. McCary’s
opinion in that manner because Ms. McCary was a treating provider. It is true that
the opinion of a treating physician “must be given substantial or considerable weight
unless ‘good cause’ is shown to the contrary.” Phillips v. Barnhart, 357 F.3d 1232,
1240-41 (11th Cir. 2004) (internal citations omitted). Good cause exists when “(1)
[the] treating physician’s opinion was not bolstered by the evidence; (2) [the]
evidence supported a contrary finding; or (3) [the] treating physician’s opinion was
conclusory or inconsistent with the doctor’s own medical records.” Id. (alterations
supplied). Additionally, the ALJ is not required to accept a conclusory statement
from a medical source, even a treating source, that a claimant is unable to work,
4

Tr. 28 (citations to the administrative record omitted).
4

because the decision whether a claimant is disabled is not a medical opinion, but is
a decision “reserved to the Commissioner.” 20 C.F.R. §§ 404.1527(d), 416.927(d).
Social Security regulations also provide that, in considering what weight to
give any medical opinion (regardless of whether it is from a treating or non-treating
physician), the Commissioner should evaluate: the extent of the examining or
treating relationship between the doctor and patient; whether the doctor’s opinion can
be supported by medical signs and laboratory findings; whether the opinion is
consistent with the record as a whole; the doctor’s specialization; and other factors.
See 20 C.F.R. §§ 404.1527(c), 404.927(c). See also Wheeler v. Heckler, 784 F.2d
1073, 1075 (11th Cir. 1986) (“The weight afforded a physician’s conclusory
statements depends upon the extent to which they are supported by clinical or
laboratory findings and are consistent with other evidence as to claimant’s
impairments.”).
Ms. McCary, however, is not a physician; she is a nurse practitioner. Even
though such professionals are permitted to treat patients with only remote supervisory
care from a licensed physician, the Social Security Administration does not afford
them the same status as physicians when it comes to offering medical opinions about
a claimant’s functional abilities. To evaluate whether a claimant has a “medically
determinable impairment,” Social Security regulations require evidence from

5

“acceptable medical sources,” including physicians, psychologists, optometrists,
podiatrists, and speech pathologists. 20 C.F.R. §§ 404.1513(a), 416.913(a). The
regulations also permit consideration of “evidence from other sources to show the
severity of [a claimant’s] impairment(s) and how it affects [the claimant’s] ability to
work.” 20 C.F.R. §§ 404.1513(d), 416.913(d) (alterations supplied). “Other sources”
include nurse practitioners. 20 C.F.R. §§ 404.1513(d)(1), 416.913(d)(1). Even
though the opinions of “other sources” may be considered, they are not entitled to the
same weight as the opinions of “acceptable medical sources.” See 20 C.F.R. §§
404.1527, 416.927. Similarly, an ALJ does not have to demonstrate “good cause” in
order to reject the opinion of a treating nurse practitioner, as she would for the
opinion of a treating physician.
Even if Ms. McCary’s opinion had been entitled to the same consideration as
the opinion of a treating physician, the ALJ properly considered it. Claimant asserts
that the ALJ “never mentions nor addresses the weight to be given the PCE completed
by Ms. McCary.”5 That assertion simply is not supported by the record, as the ALJ
explicitly stated that she had afforded Ms. McCary’s opinion little weight.6 The ALJ
also adequately explained the reasons for that decision. She reasoned that Ms.
McCary’s opinion was internally inconsistent, inconsistent with claimant’s relatively
5

Doc. no. 12 (claimant’s brief), at 9.

6

Tr. 28.
6

conservative treatment history, and unsupported by the medical evidence of record.
Those all were permissible considerations, see Phillips, 357 F.3d at 1240-41, and they
were supported by substantial evidence.
Claimant also asserts that the ALJ was “not free to dismiss Ms. McCary’s
opinion out of hand,” and that the ALJ instead had an obligation to recontact Ms.
McCary to clarify her opinion.7 Claimant relies on Social Security Ruling 96-5p,
which states, in pertinent part, that “[f]or treating sources, the rules also require that
we make every reasonable effort to recontact such sources for clarification when they
provide opinions on issues reserved to the Commissioner and the bases for such
opinions are not clear to us.” SSR 96-5p (alteration and emphasis supplied). There
is no indication that the ALJ found Ms. McCary’s assessment to be unclear; instead,
the ALJ concluded that the assessment was internally inconsistent and unsupported
by the record. There was therefore no need for the ALJ to recontact Ms. McCary for
any further explanation. See Shaw v. Astrue, 392 F. App’x 684, 688-89 (11th Cir.
2010).
B.

Pain
Claimant also asserts that the ALJ improperly considered her complaints of

subjective symptoms. To demonstrate that pain or another subjective symptom
renders her disabled, a claimant must “produce ‘evidence of an underlying medical
7

Doc. no. 9 (claimant’s brief), at 10.
7

condition and (1) objective medical evidence that confirms the severity of the alleged
pain arising from that condition or (2) that the objectively determined medical
condition is of such severity that it can be reasonably expected to give rise to the
alleged pain.’” Edwards v. Sullivan, 937 F.2d 580, 584 (11th Cir. 1991) (quoting
Landry v. Heckler, 782 F.2d 1551, 1553 (11th Cir. 1986)). If an ALJ discredits
subjective testimony of pain or other symptoms, “[s]he must articulate explicit and
adequate reasons.” Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987) (citing
Jones v. Bowen, 810 F.2d 1001, 1004 (11th Cir. 1986); MacGregor v. Bowen, 786
F.2d 1050, 1054 (11th Cir. 1986)) (alteration supplied).
The ALJ in the present case properly applied these legal principles. She found
that claimant’s medically determinable impairments could reasonably have been
expected to produce the symptoms claimant alleged, but that claimant’s statements
concerning the intensity, persistence, and limiting effects of her symptoms were not
entirely credible.8 This conclusion was in accordance with applicable law. See
Marbury v. Sullivan, 957 F.2d 837, 839 (11th Cir. 1992) (“After considering a
claimant’s complaints of pain, the ALJ may reject them as not creditable, and that
determination will be reviewed for substantial evidence.”) (citing Wilson v. Heckler,
734 F.2d 513, 517 (11th Cir. 1984)) (emphasis supplied).
The ALJ also adequately articulated reasons to support her findings. She
8

Tr. 25.
8

reasoned that the record did not “reveal the type of significant clinical and laboratory
abnormalities one would expect if the claimant were in fact disabled” as a result of
her asthma or mental impairments.9 She also noted that claimant was non-complaint
with her prescribed asthma treatment, gave only a broad description of her mental and
emotional symptoms, attended mental health counseling for only a short period of
time, did not take her mental health medications as prescribed, and performed “a wide
range of activities of daily living . . . .”10 Those observations were supported by
substantial evidence.
C.

Conclusion and Order
Consistent with the foregoing, the court concludes that the ALJ’s decision was

based upon substantial evidence and in accordance with applicable legal standards.
Accordingly, the decision of the Commissioner is AFFIRMED. Costs are taxed
against claimant. The Clerk is directed to close this file.
DONE this 21st day of October, 2015.

______________________________
United States District Judge

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Tr. 25-26.

10

Tr. 26-27.
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