Weems v. Social Security Administration, Commissioner

Filing 10

MEMORANDUM OPINION. Signed by Judge Karon O Bowdre on 6/19/2012. (FNC)

FILED
2012 Jun-19 PM 03:20
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ALABAMA
NORTHWESTERN DIVISION
RONALD EUGENE WEEMS,
Plaintiff
v.

MICHAEL J. ASTRUE,
Commissioner of the Social,
Security Administration
Defendant.

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CIVIL ACTION NO.
3:11-CV-03083-KOB

MEMORANDUM OPINION
I. INTRODUCTION
On August 3, 2009, the claimant, Ronald Weems, filed an application for disability insurance
benefits and supplemental security income under Titles II and XVI of the Social Security Act. The
claimant alleged disability commencing on February 16, 2009, because of rheumatoid arthritis,
polyarthropatries, and bipolar disorder. (R. 142, 150). The Commissioner denied the claim, and the
claimant filed a timely request for a hearing before an Administrative Law Judge, which the ALJ
held on December 28, 2010. In a decision dated February 23, 2011, the ALJ found the claimant not
disabled as defined by the Social Security Act and, thus, ineligible for disability insurance benefits
or supplemental security income. On June 23, 2011, the Appeals Council refused to grant review;
consequently, the ALJ’s decision became the final decision of the Commissioner of the Social
Security Administration. (R. 1-3, 9, 12-25, 97, 193). The claimant has exhausted his administrative
remedies, and this court has jurisdiction pursuant to 42 U.S.C. §§ 405(g) and 1631(c)(3). For the
reasons stated below, this court affirms the decision of the Commissioner.
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II. ISSUES PRESENTED
I.

II.
III.

Whether the ALJ properly accorded more weight to non-examining state
physicians than to Dr. Brad Ginevan, a treating physician and Linda Livingston, a
treating nurse practitioner.
Whether the ALJ properly applied the Eleventh Circuit’s three-part pain standard.
Whether the ALJ properly incorporated the PRTF’s mode of analysis into his
decision.
III. STANDARD OF REVIEW

The standard for reviewing the Commissioner’s decision is limited. This court must
affirm the Commissioner’s decision if the Commissioner applied the correct legal standards and
if the factual conclusions are supported by substantial evidence. See 42 U.S.C. § 405(g); Graham
v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997); Walker v. Bowen, 826 F.2d 996,999 (11th Cir.
1987). “Substantial evidence is more than a scintilla, but less than a preponderance. It is such
relevant evidence as a reasonable person would accept as adequate to support a conclusion.”
Richardson v. Perales, 401 U.S. 389, 401 (1971). A reviewing court may not look only to those
parts of the record which support the decision of the ALJ, but instead must view the record in its
entirety and take account of evidence that conflicts with the evidence relied on by the ALJ.
Hillsman v. Bowen, 804 F.2d 1179 (11th Cir. 1986). The court must scrutinize the totality of the
record “to determine the reasonableness of the [Commissioner’s] . . . factual findings . . . No
similar presumption of validity attaches to the [Commissioner’s] . . . legal conclusions, including
determination of the proper standards to be applied in evaluating claims.” Walker v. Bowen, 826
F.2d 996, 999 (11th Cir. 1987).
IV. LEGAL STANDARDS
Under 42 U.S.C. § 423(d)(1)(A), a person is entitled to disability benefits when the
person is unable to “engage in any substantial gainful activity by reason of any medically
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determinable physical or mental impairment which can be expected to result in death or which
has lasted or can be expected to last for a continuous period of not less than 12 months . . . .” To
make this determination the Commissioner employs a five-step, sequential evaluation process.
See 20 C.F.R. §§ 404.1520, 416.920.
(1) Is the person presently unemployed?
(2) Is the person’s impairment severe?
(3) Does the person’s impairment meet or equal one of the specific impairments
set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1?
(4) Is the person unable to perform his or her former occupation?
(5) Is the person unable to perform any other work within the economy?
An affirmative answer to any of the above questions leads either to the next
question, or, on steps three and five, to a finding of disability. A negative answer
to any question, other than step three, leads to a determination of “not disabled.”
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).1
To establish disability, the claimant has the burden of proving the first three steps: namely
that (1) she is not engaged in substantial gainful activity; (2) she has a severe impairment or
combination of impairments; and (3) her impairment or impairments meet or exceed the criteria
in the Listings found in 20 C.F.R. Pt. 404, Subpt. P, App. 1. If the claimant cannot prove that she
has a listed impairment, she must prove alternatively that she is unable to perform her previous
work. Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999); see also Lucas v. Sullivan, 918 F.2d
1567, 1571 (11th Cir. 1990). Once the claimant shows that she cannot perform her previous
work, the burden shifts to the Commissioner “to show the existence of other jobs in the national
economy which, given the claimant’s impairments, the claimant can perform.” Jones v. Apfel,

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McDaniel v. Bowen, 800 F.2d 1026 (11th Cir. 1986) was a supplemental security income case
(SSI). The same sequence applies to disability insurance benefits. Cases arising under Title II are
appropriately cited as authority in Title XVI cases. See e.g. Ware v. Schweiker, 651 F.2d 408 (5th Cir.
Unit A 1981).

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190 F.3d at 1228.
As a general rule, the opinion of an examining physician is usually entitled to more
weight than the opinion of a non-examining physician. Broughton v. Heckler, 776F.2d 960, 96162 (11th Cir. 1985). However, in evaluating physician’s opinions, “the [ALJ] may reject any
medical opinion,” including that of a treating and consulting physician, “if the evidence supports
such a contrary finding.” Syrock v. Heckler, 764 F.2d 834, 835 (11th Cir. 1985). However, the
ALJ must articulate specific reasons for rejecting the treating or examining physician’s opinion.
See Moore v. Barnhart, 405 F.3d 1208, 1212 (11th Cir. 2005).
In evaluating pain and other subjective complaints, the Commissioner must consider
whether the claimant demonstrated an underlying medical condition, and either “(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 a severity that it can reasonably be
expected to give rise to the alleged pain.” Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991)
(emphasis added); see also Wilson v. Barnhart, 284 F.3d 1219, 1225-56 (11th Cir. 2002); 20
C.F.R. § 404.1529.
When evaluating mental impairments, an ALJ must use the special technique dictated by
the Psychiatric Review Technique Form (PRTF). 20 C.F.R. § 404.1520a(a). This technique
requires evaluating four functional areas: activities of daily living; social functioning;
concentration, persistence, or pace; and episodes of decompensation. 20 C.F.R. §
404.1520a(c)(3-4). When faced with a claim of mental impairment, an ALJ must complete and
append a PRTF to his decision or “incorporate its mode of analysis into his findings and
conclusions. Failure to do so requires remand.” Moore v. Barnhart, 405 F.3d 1208, 1214 (11th

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Cir. 2005); see also 20 C.F.R. § 404.1520a(e)(2).
V. FACTS
The claimant has a high school education and was thirty-two years old at the time of the
hearing. His past work experience includes employment as a polish hand, millwright helper, and
order puller. The claimant’s alleged disabilities stem from rheumatoid fever and bipolar disorder.
(R. 19, 38, 169).
Physical Limitations
On June 6, 2004, Shoals Radiology Associates conducted an X-ray on the claimant that
showed a large left paramedian disc herniation at L5-S1 impinging on the claimant’s exiting left
fifth nerve root. (R. 229). On June 28, 2004, the claimant visited Dr. Jerry Adderholt, a treating
neurosurgeon, who diagnosed the claimant with a herniated disc. Dr. Adderholt recommended
and scheduled surgery. On July 7, 2004, Dr. Jerry Adderholt conducted surgery on the claimant at
Eliza Coffee Memorial Hospital, which corrected the claimant’s disc herniation. On August 4,
2004, the claimant visited Dr. Adderholt, who noted that the claimant was healing well from
surgery. On September 15, 2004, the claimant had a follow-up visit with Dr. Adderholt. At that
time, the claimant had no back pain, and the surgically induced fusion of vertebrae was
progressing well. (R. 237-40, 243).
After no specific inciting event, the claimant visited Dr. Adderholt on November 30,
2005 for lower back, right hip, and leg pain. The examination showed no abnormalities or
negative test results, and Dr. Adderholt saw nothing he could remedy with surgery; Dr. Adderholt
recommended home exercise and anti-inflammatories. On January 21, 2008, the claimant again
visited Dr. Adderholt for lower back pain. Dr. Adderholt order new imaging of the claimant’s

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back, which showed solid surgically induced fusion and some mild degenerative changes. (R.
231, 233-34, 236).
On January 14, 2008, the claimant visited Dr. Linda Clemons, a treating physician. Dr.
Clemons diagnosed the claimant with palpitations, rheumatoid arthritis, and degenerative disc
disease. (R. 288-91). The claimant visited Dr. Clemons four more times, each time exhibiting
rheumatoid arthritis, palpitations, and degenerative disc disease: March 3, 2008; April 16, 2008;
May 22, 2008; and June 3, 2008. On the April 12, 2008 visit, Dr. Clemons performed an inoffice venipuncture, which showed low testosterone levels. The June 3, 2008 report showed a
plan to conduct a bone scan. (R. 273-86).
From June 1, 2009 to August 25, 2009, the claimant visited Dr. Brad Ginevan, a treating
physician, five times, where he exhibited bipolar disorder, joint pain, and rheumatic heart disease
each time: June 1, 2009; July 1, 2009; July 29, 2009; August 18, 2009; August 25, 2009. On June
1, 2009, Dr. Ginevan performed an X-ray that showed normal knees, hips, and heart and a post
operative plate from the disc surgery conducted by Dr. Adderholt. Additionally, at the request of
the claimant, Dr. Ginevan wrote a letter dated August 11, 2009 and addressed “to whom it may
concern” that indicated the claimant was “unable to maintain any gainful employment.” Dr.
Ginevan did not attach any records to the letter, nor did he cite to any treatment records; rather,
Dr. Ginevan listed the following maladies: arthritic condition; irregular heart beat; rheumatic
fever; and bipolar disorder. After this listing, Dr. Ginevan made the above mentioned conclusion
that the claimant could not work. (R. 352-94, 514).
From October 22, 2009 to November 29, 2010, the claimant saw Dr. Ginevan twelve
times, each time complaining of joint pain: October 22, 2009; December 9, 2009; February 19,

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2010; April 26, 2009; May 27, 2010; June 24, 2010; July 23, 2010; August 24, 2010; October 1,
2010; October 28, 2010; November 15, 2010; and November 29, 2010. For each visit in 2010,
Linda Livingston, CRNP, edited the report, indicating that she examined the claimant.
Additionally, on December 13, 2010 Livingston completed a Clinical Assessment of Pain (CAP)
regarding the claimant. (R. 428-508).
In the CAP, Livingston indicated that the claimant’s pain would be too distracting to
adequately perform daily work activities. She indicated that physical activity, such as walking,
standing, bending, and stooping, greatly increase the claimant’s pain. The CAP indicated that the
claimant’s conditions would compromise his ability to sustain work activity on a regular basis
and would cause approximately forty-eight days of absences in a 250 day work year. Livingston
indicated that the claimant’s condition could reasonably produce the pain of which the claimant
complained. Lastly, Livingston marked that the claimant experienced pain, as indicated in her
assessment, on the alleged onset date of disability. (R. 507-08).
Livingston also completed an arthritis RFC questionnaire. In the questionnaire,
Livingston indicated that the claimant’s impairments were not reasonably consistent with the
symptoms described stating, “[a]ll testing has been normal, [sic] pain is a subjective symptom.”
Livingston stated that the claimant could possibly be a malingerer and that the claimant was
capable of low stress jobs. Livingston marked that the claimant would have significant
limitations doing repetitive handling or reaching. Livingston indicated that the claimant could
grasp or turn objects with his hands for ten percent of a work day; make fine manipulations with
his fingers for ten percent of the work day; and reach with his arms, including overhead, for
fifteen percent of the work day. (R. 509-13).

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Mental Limitations
From November 3, 2006 to May 5, 2009, the claimant visited Dr. Georgie Stanford, a
treating psychiatrist, at Riverbend Center for Mental Health ten times: November 3, 2006;
December 1, 2006; March 28, 2008; June 2, 2008; September 5, 2008; October 14, 2008;
October 23, 2008; January 12, 2009; March 9, 2009; and May 5, 2009. (R. 300-22). Each time
the claimant exhibited bipolar disorder, euthymic mood, and a history of manic depression. On
January 28, 2008, Riverbend Center for Mental Health completed a report that showed that the
claimant’s speech, emotions, thought process, and thought content were within normal limits.
The report showed that the claimant was fidgeting, shaking his leg, and losing weight. The report
indicated two mental health visits for which no reports exist in the record: a 2005 outpatient
treatment at Riverbend Center for Mental Health relating to bipolar disorder and a 2003
outpatient treatment from Dr. Mumford, a psychiatrist, relating to bipolar disorder. Lastly, the
report showed a diagnoses of Bipolar I Disorder Unspecified and a Global Assessment of
Functioning (GAF) score of fifty-five. (R. 251-62).
On March 3, 2008, the claimant received a psychiatric evaluation from Dr. Stanford. (R.
264-271). The evaluation showed a diagnoses of bipolar disorder and a GAF score of fifty-five.
(R. 266). Dr. Stanford prescribed Lexapro and Lamictal. (R. 266). From November 3, 2006 to
March 28, 2008, the claimant’s GAF score remained fifty-five; from June 2, 2008 to May 5 2009
his GAF increased to and stabilized at sixty-five. (R. 300-22).
On June 4, 2008, the claimant visited Dr. Joseph Cuccia on referral from Dr. Clemons.
(R. 293). The claimant complained of memory loss and spacing out; Dr. Cuccia determined those
complaints could be caused by the claimant’s bipolar disorder or sleep apnea. (R. 294). Dr.

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Cuccia found that claimant’s spacing out could also be complex partial seizures; accordingly, Dr.
Cuccia ordered an MRI, EEG, and a follow-up appointment. (R. 295). On June 13, 2008, the
claimant had an MRI at Helen Keller Hospital that showed no abnormalities in the claimant’s
brain. (R. 296).
The ALJ Hearing
After a denial of the claimant’s request for disability insurance benefits by the
Commissioner, the claimant received a hearing before the ALJ on December 28, 2010. (R. 32,
142, 150).
The claimant stated he suffers from arthritis and has difficulty sitting, standing or walking
for long periods of time. The claimant testified to significant pain in his hands that worsens with
extended use; however, after a fifteen to twenty minute rest, his hands function properly again.
The claimant stated that arthritis affects his knees, hips, shoulders, ankles, and back; that
increased activity worsens his arthritis; that techniques he learned from physical therapy lessen
his pain; and that since applying for disability in February 2008, his pain has worsened. (R. 3941).
The claimant testified that while he visits Dr. Ginevan, Linda Livingston, a nurse
practitioner, adjusts his pain medications. The claimant testified that three or four days out of the
week, he must lie down for an hour or more to relieve his pain; that three or four times each
night, he wakes up for ten to fifteen minutes because of his pain; and that he can clean his clothes
but does not vacuum or mop because the activity causes him too much pain. The claimant
testified that he avoids walking “at all costs” for fear of pain that originates in his hips and knees
then radiates out to his back and ankles when he walks. Moreover, claimant testified that even if

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he were allowed to sit and stand as he pleased while using his hands for fine manipulations, such
as putting nuts on bolts, he would be unable to do so given his pain. (R. 41-43).
The claimant testified that he has a significant memory problem but acknowledged that
his medical record does not reflect that ailment. (R. 43). Claimant testified that he can no longer
play computer games but continues playing table-top role-playing games. Claimant testified that
his weight fluctuates stating that depression, stress, and jaw pain affect his desire to eat. Claimant
testified that he had surgery in 2004 to correct a herniated disc and surgery in 2008 to correct
heart palpitations. Claimant testified that while the heart surgery was successful, he still has
palpitations and breathing problems. However, claimant stated he no longer needs to take
medication for his palpitations. Claimant testified that Livingston prescribed him Symbicort for
chronic obstructive pulmonary disease; claimant referred to Livingston as his doctor, though
Livingston is a nurse practitioner. (R. 46-50).
The ALJ next questioned Thomas Elliott, a vocational expert. Mr. Elliott testified that the
claimant had previously worked as a polish hand, millwright helper, and order puller. The ALJ
asked Mr. Elliott if an individual with the claimant’s age, education, and skill level who also had
the ability to perform light work could perform the claimant’s past relevant work. Mr. Elliott
testified that such an individual could not perform the claimant’s past relevant work but could
work as an inspector, hand packer, or an assembler of small products and hardware. (R. 51-54).
The ALJ next asked Mr. Elliott to take the previous hypothetical restrictions and further
limit them from light work to sedentary work. Mr. Elliott testified that with those restrictions, the
hypothetical individual could work as a final assembler, assembler of buttons and notions, or
bench hand. The ALJ next asked Mr. Elliott to assume that the hypothetical individual would

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have to take breaks as described in the claimant’s testimony. Mr. Elliott testified that such a
person could not maintain gainful employment. The ALJ asked Mr. Elliott to assume that the
individual would have to miss work as often as the claimant testified he would need. Mr. Elliott
testified that such an individual could not maintain gainful employment. The ALJ asked Mr.
Elliott to assume that the individual could not use his hands without pain as the claimant
testified. Mr. Elliott testified that such an individual could not maintain gainful employment as
an unskilled laborer. The claimant’s counsel asked Mr. Elliott what effect a limitation of only
occasional use of the hands would have on someone seeking unskilled employment. Mr. Elliott
testified that such a limitation would preclude such an individual from gainful employment. (R.
54-57).
The ALJ’s Decision
In his decision, the ALJ found that the claimant met the insured status requirements of the
Social Security Act through December 31, 2010. The ALJ found that the claimant had not
engaged in substantial gainful activity since the alleged onset of disability, February 16, 2008,
and that the claimant had the following severe impairments: bipolar disorder; status-post lumbar
fusion; and polyarthropathy. To support his conclusion regarding the claimant’s severe
impairments, the ALJ cited to a number of the claimant’s medical records. (R. 15-16).
The ALJ cited records from Dr. Stanford of Riverbend Center for Mental Health as proof
of the claimant’s bipolar disorder. To show status-post lumbar fusion, the ALJ cited the
following reports and documents from Dr. Adderholt: surgery records; follow-up records; XRays; and treatment recommendations for anti-inflammatory medication and home exercise.
Additionally, the ALJ cited Dr. Clemon’s records indicating repeat visits by the claimant for back

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pain. The ALJ addressed the claimant’s assertion of memory loss by citing to Dr. Cuccia, who
found no abnormalities; ordered an MRI that was negative; and determined that the memory loss
was possibly multi-factorial and likely based on the claimant’s bipolar disorder. To support
finding polyarthropathies as a severe impairment of the claimant, the ALJ cited Dr. Ginevan’s
records that indicate that the claimant saw Dr. Ginevan periodically for joint pain and arthritis.(R.
15-16).
The ALJ next found that the claimant did not have an impairment that met the listings.
For physical impairments, the ALJ found that the claimant’s back injury did not meet the Listings
because the claimant did not have nerve root compression or motor loss. For mental impairments,
the ALJ considered whether paragraph B criteria of Listing 12.04 were met. The ALJ stated that
to satisfy paragraph B, a mental impairment must result in at least two of the following: marked
limitations of activities of daily living; marked limitations in maintain social functioning; marked
limitations in maintaining concentration, persistence, or pace; or repeated episodes of
decompensation each of extended duration. The ALJ found that the claimant had mild limitations
in activities of daily living; moderate limitations in social functioning; moderate limitations in
concentration, persistence, or pace; and no episodes of decompensation. To support his
conclusions regarding mental impairments, the ALJ cited the claimant’s GAF of fifty-five and
sixty-five and an assessment by a non-examining state agency physician. (R. 16-17).
The ALJ found that the claimant had the residual functioning capacity to perform light
work. To support his conclusion, the ALJ applied the three part pain standard regarding the
claimant’s subjective allegations of pain. The ALJ first stated that the claimant testified that he
could not work because of chronic arthritic pain affecting his hands, knees, hips, back, shoulders,

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and ankles. The ALJ determined that the claimant’s allegations were not fully credible as they
were not supported by objective medical evidence. To that end, the ALJ stated that Dr. Cuccia’s
records indicate that the claimant had no problems with motor functions, sensation, coordination,
gait, or reflexes and that the laboratory testing conducted by Dr. Cuccia showed no abnormalities.
(R. 18).
In his residual functioning assessment, the ALJ gave little weight to the pain
questionnaire and opinion evidence given by Livingston. To justify affording little weight, the
ALJ stated that the questionnaire noted that all objective testing had been normal, and
Livingston, as a nurse practitioner, was not a treating source. Additionally, the ALJ stated that
the opinions found within the questionnaire were based on the claimant’s subjective claims of
pain and inconsistent with the objective findings in the medical record. The ALJ also gave little
weight to Dr. Ginevan’s opinion evidence found within his letter written on behalf of the
claimant. To support affording little weight, the ALJ cited the lack of objective findings attached
to the letter itself and the inconsistency between the record and the opinion in the letter. To show
that inconsistency, the ALJ cited that the record indicated that the claimant had chronic
subjective pain complaints, without objective findings and with normal indicators of functioning
ability. Lastly, the ALJ stated that he gave the greatest weight to the assessments by the nonexamining state agency physicians that stated the claimant was capable of a limited to full range
of light work. The ALJ gave these opinions the greatest weight because they were reasonably
consistent with the medical evidence as they found no objective basis to limit the claimant’s
functioning capacity so severely as to preclude him from working. (R. 18-19).
The ALJ next found that the claimant was unable to perform any past relevant work; was

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a younger individual on the alleged onset of disability; has a high school education; and has
acquired no transferable work skills from past relevant work. The ALJ determined that jobs in
significant numbers exist in the national economy that the claimant can perform, such as hand
packer, small product assembler, hardware assembler, final assembler, buttons and notions
assembler, and bench hand. Ultimately, the ALJ found that the claimant was not disabled as
defined by the Social Security Act. (R. 20).
VI. DISCUSSION
The claimant did not file a brief in this matter. The Commissioner impliedly argues that
the claimant waived his ability to raise issues before this court by not filing a brief. To support
his contention, the Commissioner cites Scott v. Comm’r of Soc. Sec., 440 Fed. Appx. 726 (11th
Cir. 2011) and Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570 (11th Cir. 1989). In Scott,
the Eleventh Circuit held that parties waive issues that they do not argue on the merits in their
brief. Scott, 440 Fed. Appx. at 728. However, this holding applies to briefs filed in the federal
circuit court, not briefs filed in the federal district court. Scott makes this limited application
clear by citing to both Greenbriar—specifically referencing initial and reply briefs filed in the
circuit court—and Federal Rule of Appellate Procedure 28(a)5—requiring appellant’s briefs to
contain a statement of the issues presented for appeal. Greenbriar, 881 F.2d at 1573 n. 6; Fed. R.
App. P. 28(a)5; see also Outlaw v. Barnhart, 197 Fed. Appx. 825, 828 n.3 (11th Cir. 2006)
(holding that a claimant who lists an issue in their appellate brief without further elaboration or
citation to authority waives the issue).
The Eleventh Circuit has not addressed whether a social security disability claimant must
file a brief with his original complaint in the district court nor has the circuit determined the

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specific consequences of a claimant not filing a brief with the district court. The federal districts
differ in their approach to complaints unaccompanied by briefs. The Southern District of Georgia
has held the non-filing of a brief in a social security case a complete waiver of claims. See
Walton v. Astrue, 2010 U.S. Dist. LEXIS 11515, *5 n.3 (S.D. Ga. 2010). The District of South
Carolina has dismissed complaints unaccompanied by briefs for failure to prosecute. See Messer
v. Comm’r of SSA, 2011 U.S. Dist. LEXIS 152525 (D. S.C. 2011); but see Shaw v. Comm’r of
Soc. Sec., 1998 U.S. Dist. LEXIS 18414, *5 (N.D.N.Y. 1998) (holding that dismissing a
claimant’s complaint for not filing a brief too harsh).
However, the majority of districts, including the Northern District of Alabama, have
reviewed the record to determine whether the ALJ properly applied legal standards and supported
his factual conclusions with substantial evidence, despite the claimant not filing a brief. See, e.g.,
Mitchell v. Apfel, 1999 U.S. Dist. LEXIS 17549 (N.D. Ala. 1999); see also Beckstrom v. Astrue,
2011 U.S. Dist. LEXIS 38224, *6 (D. Az. 2011) (finding the filing of briefs unnecessary in social
security disability complaints). Moreover, the notice to parties issued by the clerk of this court
upon receipt of social security disability benefits pleadings states that the court does not require
briefs. Thus, failing to file a brief is neither fatal nor a waiver of claims or review.
Having determined that the claimant’s non-filing does not restrict review, this court will
review the record to determine whether the ALJ properly applied legal standards and supported
his factual findings with substantial evidence. The commissioner argues that the ALJ (1) properly
weighed medical opinion evidence; (2) dismissed the claimant’s subjective pain testimony; and
(3) addressed the claimant’s allegations of mental impairments. For the reasons stated below, this
court agrees, finding that the ALJ properly applied legal standards and supported his conclusions

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with substantial evidence.
I.

Whether the ALJ properly accorded more weight to non-examining state
physicians than to Dr. Brad Ginevan, a treating physician, and Linda
Livingston, a treating nurse practitioner.

Generally, the opinion of an examining physician is entitled to more weight than the
opinion of a non-examining physician. Broughton v. Heckler, 776 F.2d 960, 961-62 (11th Cir.
1985). However, in evaluating physician’s opinions, “the [ALJ] may reject any medical opinion,”
including that of a treating and consulting physician, “if the evidence supports such a contrary
finding.” Syrock v. Heckler, 764 F.2d 834, 835 (11th Cir. 1985). If the evidence supports such a
contrary finding, the ALJ must articulate specific reasons for rejecting the treating or consulting
physician’s opinion. See Moore v. Barnhart, 405 F.3d 1208, 1212 (11th Cir. 2005). Lastly, an
ALJ may rely on a non-examining physician’s report so long as the report does not contradict
information in examining physician’s reports. See Randolph v. Astrue, 291 Fed. Appx. 979, 982.
The ALJ accorded little weight to Dr. Ginevan and Livingston’s opinions, a treating
physician and nurse practitioner, and gave greater weight to the non-examining state agency
physicians. To support his decision, the ALJ stated that Dr. Ginevan and Livingston’s opinions
were inconsistent with the objective findings in the record. Like all reports in the record, Dr.
Ginevan’s treatment records show no physical abnormalities in the claimant. However, in a letter
addressed “to whom it may concern” Dr. Ginevan stated that the claimant could not maintain
gainful employment. Additionally, Livingston’s questionnaire stated that all testing results for the
claimant were negative; yet, she marked limitations in the claimant’s working capacity that
reflect an inability to maintain gainful employment, thus reflecting inconsistencies. Therefore,
the ALJ cited specific reasons for rejecting Dr. Ginevan and Livingston’s opinions that were

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supported by substantial evidence.
Moreover, nurse practitioners are not an “acceptable medical source” under the
regulations. 20 C.F.R. §§ 404.1513(a)(1)-(a)(5). Only acceptable medical sources can establish
medically determinable impairments or proffer medical opinions. 20 C.F.R. §§ 404.1513(a),
404.1527(a)(2). Livingston, as a nurse practitioner, cannot proffer a medical opinion nor can she
establish medically determinable impairments. As such, the ALJ had additional grounds for
giving less weight to Livingston’s opinion.
Also, an ALJ may rely on a non-examining physician’s report so long as the report does
not contradict information in examining physician’s reports. See Randolph v. Astrue, 291 Fed.
Appx. 979, 982. Here, the non-examining state agency physicians determined that no objective
medical evidence existed to support a finding of disability in the claimant. Nothing in the record
contradicts this finding. To the contrary, both Dr. Ginevan and Livingston’s records and reports
acknowledged that the claimant had no physical abnormalities or positive test results. While the
claimant’s subjective claims of pain indicated a severity of impairment sufficient for finding the
claimant disabled, the ALJ properly discredited those claims. Accordingly, the ALJ could rely
upon the state agency physician’s opinions. Furthermore, the ALJ did not rely solely on the state
agency physician’s opinions. For each conclusion regarding her RFC findings, the ALJ cited the
claimant’s testimony and activities for support. Thus, the ALJ committed no reversible error in
weighing medical opinion evidence.
II.

Whether the ALJ properly applied the three-part pain standard.

In evaluating pain and other subjective complaints, the Commissioner must consider
whether the claimant demonstrated an underlying medical condition, and either “(1) objective

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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 a severity that it can reasonably be
expected to give rise to the alleged pain.” Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991)
(emphasis added); see also Wilson v. Barnhart, 284 F.3d 1219, 1225-56 (11th Cir. 2002); 20
C.F.R. § 404.1529.
The ALJ determined that the claimant had an underlying medical condition that could
reasonably be expected to cause the alleged symptoms. However, the ALJ did not find any
objective medical evidence to support the claimant’s allegations regarding the severity of his pain
and, thus, did not find the claimant’s subjective pain complaints credible. To support this
conclusion, the ALJ cited Dr. Cuccia’s records. These records indicate that the X-rays and bone
scans of the claimant show no abnormalities. Additionally, the ALJ noted that Livingston stated
that all objective testing had been normal. The ALJ found that the record contained no objective
medical evidence to substantiate the alleged severity of the claimant’s pain. Therefore, the ALJ
had to make a credibility determination regarding the subjective pain testimony of the claimant.
As “credibility determinations are the province of the ALJ,” this court finds no error in the ALJ’s
application of the three part pain standard. See Moore v. Barnhart, 405 F.3d 1208, 1212.
III.

Whether the ALJ properly incorporated the PRTF’s mode of analysis into
his decision.

When evaluating mental impairments, an ALJ must use the special technique dictated by
the Psychiatric Review Technique Form (PRTF). 20 C.F.R. § 404.1520a(a). This technique
requires evaluating four functional areas: activities of daily living; social functioning;
concentration, persistence, or pace; and episodes of decompensation. 20 C.F.R. §
404.1520a(c)(3-4). When faced with a claim of mental impairment, an ALJ must complete and
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append a PRTF to his decision or “incorporate its mode of analysis into his findings and
conclusions. Failure to do so requires remand.” Moore v. Barnhart, 405 F.3d 1208, 1214 (11th
Cir. 2005); see also 20 C.F.R. § 404.1520a(e)(2).
The ALJ did not complete and append a PRTF to his decision; however, he did
incorporate its mode of analysis into his findings and conclusion. In determining that the
claimant did not have an impairment or combination of impairments that met the Listings, the
ALJ analyzed the claimant’s functionality in the four areas described above. The ALJ determined
that the claimant had mild limitations in activities of daily living; moderate limitations in social
functioning; moderate limitations with regard to concentration, persistence, or pace; and no
episodes of decompensation. To support his conclusions, the ALJ cited to the 2008 and 2009
treatment records from Riverbend Center for Mental Health that indicate that the claimant’s GAF
increased from fifty-five to sixty-five over a six month period and then remained level at sixtyfive. Additionally, the ALJ noted the consistency between the Riverbend records and nonexamining state physician’s assessment.
In sum, the ALJ applied correct legal standards and supported his conclusions regarding
the claimant’s mental impairments with substantial evidence.

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VII. CONCLUSION
For the reasons as stated, this court concludes that the decision of the Commissioner is
supported by substantial evidence and is due to be AFFIRMED.
A separate order will be entered in accordance with this Memorandum Opinion.
DONE and ORDERED this 19th day of June, 2012.

____________________________________
KARON OWEN BOWDRE
UNITED STATES DISTRICT JUDGE

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