Belk v. Social Security Administration, Commissioner
MEMORANDUM OPINION as more fully set out in order. Signed by Magistrate Judge Harwell G Davis, III on 01/29/15. (SPT )
2015 Jan-29 PM 01:41
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
MELISSA DIANNE BELK,
COMMISSIONER, SOCIAL SECURITY
) Case No. 6:13-cv-01669-HGD
This matter is before the undersigned U.S. Magistrate Judge based on the
consent of the parties pursuant to 28 U.S.C. § 636(c). Plaintiff, Melissa Diane Belk,
filed for a period of disability and disability insurance benefits (DIB) and
Supplemental Security Income (SSI) on July 7, 2010, alleging she became disabled
on October 1, 2009. (Tr. 117-30, 157). Her application was denied. Plaintiff
requested a hearing before an Administrative Law Judge (ALJ). Following this
hearing, the ALJ issued an unfavorable decision on November 30, 2011, finding
plaintiff was not disabled. (Tr.13-21). The Appeals Council denied review. (Tr. 1-
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5). Consequently, the Commissioner’s decision is now ripe for review under 42
U.S.C. §§ 405(g) and 1383(c)(3).
Disability under the Act is determined under a five-step test. 20 C.F.R.
§ 404.1520. First, the ALJ must determine whether the claimant is engaging in
substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). “Substantial work
activity” is work that involves doing significant physical or mental activities. 20
C.F.R. § 404.1572(a). “Gainful work activity” is work that is done for pay or profit.
20 C.F.R. § 404.1520(b). Second, the ALJ must determine whether the claimant has
a medically determinable impairment or a combination of medical impairments that
significantly limits the claimant’s ability to perform basic work activities. 20 C.F.R.
§ 404.1520(a)(4)(ii). Absent such impairment, the claimant may not claim disability.
Id. Third, the ALJ must determine whether the claimant’s impairment meets or
medically equals the criteria listed in 20 C.F.R. § 404, Subpart P, Appendix 1. See
20 C.F.R. §§ 404.1520(d), 404.1525 and 404.1526. If such criteria are met, the
claimant is declared disabled. 20 C.F.R. § 404.1520(a)(4)(iii).
If the claimant does not fulfill the requirements necessary to be declared
disabled under the third step, the ALJ may still find disability under the next two
steps of the analysis. The ALJ first must determine the claimant’s residual functional
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capacity (RFC), which refers to the claimant’s ability to work despite his
impairments. 20 C.F.R. § 404.1520(e). In the fourth step, the ALJ determines
whether the claimant has the RFC to perform past relevant work, 20 C.F.R.
§ 404.1520(a)(4)(iv). If the claimant is determined to be capable of performing past
relevant work, then the claimant is deemed not disabled. Id. If the ALJ finds that the
claimant is unable to perform past relevant work, then the analysis proceeds to the
fifth and final step. 20 C.F.R. § 404.1520(a)(4)(v). In the last part of the analysis, the
ALJ must determine whether the claimant is able to perform any other work
commensurate with his RFC, age, education and work experience. 20 C.F.R.
§ 404.1520(g). Here, the burden of proof shifts from the claimant to the ALJ to prove
the existence in significant numbers of jobs in the national economy that the claimant
can do given the RFC, age, education and work experience.
§§ 404.1520(g) and 404.1560(c).
The ALJ found that plaintiff met the insured status requirements of the Social
Security Act and that she had not engaged in gainful activity since October 1, 2009,
the alleged onset date. According to the ALJ, plaintiff suffers from the following
severe impairments: peripheral artery disease and a history of bifemoral artery bypass
surgery. He further found that these impairments do not meet or medically equal the
severity of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.
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The ALJ ultimately found, after consideration of the entire record, that plaintiff
has the RFC to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and
416.967(b). She can lift and/or carry 20 pounds occasionally and ten pounds
frequently. She can stand and/or walk with normal breaks six hours out of an eighthour workday, but no more than a few minutes at a time. She can sit six hours out of
an eight-hour workday. She has no upper extremity limitations with gross or fine
handling of objects. She is limited to occasional use of foot controls, and she can
occasionally climb stairs and ramps. She should avoid extremes of heat or cold and
she cannot work around dangerous machinery or at unprotected heights. (Tr. 16).
Plaintiff’s Argument for Reversal
Plaintiff asserts that the ALJ erred when he failed to give proper weight to the
opinion of certified registered nurse practitioner (CRNP) Lou Ann Hubbard, whom
plaintiff characterized as her “primary treating physician.” (Doc. 13, Plaintiff’s Brief,
Standard of Review
Judicial review is limited to whether the record reveals substantial evidence to
sustain the ALJ’s decision, see 42 U.S.C. § 405(g); Walden v. Schweiker, 672 F.2d
835, 838 (11th Cir. 1982), and whether the correct legal standards were applied. See
Lamb v. Bowen, 847 F.2d 698, 701 (11th Cir. 1988); Chester v. Brown, 792 F.2d 129,
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131 (11th Cir. 1986). Title 42 U.S.C. § 405(g) mandates that the Commissioner’s
findings are conclusive if supported by “substantial evidence.” Martin v. Sullivan,
894 F.2d 1520, 1529 (11th Cir. 1990). The district court may not reconsider the facts,
re-evaluate the evidence, or substitute its judgment for that of the Commissioner;
instead, it must review the final decision as a whole and determine if the decision is
reasonable and supported by substantial evidence. See id. (citing Bloodsworth v.
Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983)).
Substantial evidence falls somewhere between a scintilla and a preponderance
of evidence; “[i]t is such relevant evidence as a reasonable person would accept as
adequate to support a conclusion.” Martin, 894 F.2d at 1529 (quoting Bloodsworth,
703 F.2d at 1239) (other citations omitted). If supported by substantial evidence, the
Commissioner’s factual findings must be affirmed even if the evidence preponderates
against the Commissioner’s findings. See Martin, 894 F.2d at 1529. While the court
acknowledges that judicial review of the ALJ’s findings is limited in scope, the court
also notes that review “does not yield automatic affirmance.” Lamb, 847 F.2d at 701.
In his decision, the ALJ provided a detailed review of plaintiff’s medical
history from 2002 through 2011. (Tr. 17-19). In pertinent part, he noted the
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The claimant went to David H. Gilliland, M.D. beginning on October 1,
2009, and was evaluated for leg pain, from her hips to her feet. The
impression was peripheral vascular disease. A CT angiogram was noted
on October 6, 2009, as showing 75 percent narrowing of her distal aorta.
She underwent aortobifemoral bypass surgery on December 1, 2009, and
had a graft thrombectomy after surgery because the graft clotted off. At
the time of discharge on December 6, 2009, she said she felt “great” and
she was eating and ambulating. She was taking Coumadin when she
returned to Dr. Gilliland for followup. Her foot pulses were good on
December 22, 2009, and she was doing well on January 14, 2010. Her
Coumadin doses were adjusted on February 9, February 16, and March
16, 2010. No problems were noted except for complaints of some leg
pain on July 20, 2010. No carotid bruits were heard and she had
palpable pulses in her feet. Dr. Gilliland repeatedly urged the claimant
to stop smoking (Exhibits 3F and 4F). She testified at the hearing that
she was still smoking but “trying to quit.”
A consultative examination was performed on September 13, 2010, by
Samia S. Mozuddin, M.D. The claimant said she had problems with her
legs since undergoing bilateral femoral bypass surgery. She also said
that she had abdominal pain since the surgery. She lived alone, but had
frequent falls and needed help getting up and getting around the house.
She said that she drove but needed help getting into and out of her car.
Examination findings included diabetes mellitus, peripheral neuropathy,
severe peripheral vascular disease, low back pain, bilateral foot pain and
hyperlipidemia. (Exhibit 5F). On September 15, 2010, the state agency
medical consultant noted that the claimant had undergone aortofemoral
bypass and grafting, reclotting with further surgery, all performed in
July 2010, and sensory changes consistent with sensory neuropathy of
the lower extremities, and that the claimant favored her right leg. The
findings were consistent with diabetic neuropathy. Light residual
functional capacity was recommended with occasional crouching and
safety precautions (Exhibit 6F).
Based on these guidelines, the state agency single decisionmaker made
a “reasonable judgment” as to the claimant’s residual functional
capacity. He found the claimant capable of performing light exertional
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work-related activities, occasionally lifting and/or carrying up to 20
pounds and frequently lifting and/or carrying ten pounds, both including
upward pulling. She was believed capable of standing and/or walking
about six hours in an eight-hour workday, and of sitting six hours in an
eight-hour workday. She could occasionally climb ramps and stairs, but
never climb ladders, ropes or scaffolds. She could occasionally balance,
stoop, kneel, crouch and crawl. She should avoid concentrated exposure
to extreme cold, and she could not work at unprotected heights. (Exhibit
3A). While not the opinion of an acceptable medical source as defined
in the regulations, it is well-reasoned and consistent with the opinion of
the state agency medical consultant. The undersigned has thus
considered it in assessing the claimant’s limitations.
The ALJ further noted that plaintiff was hospitalized from December 15 to
December 16, 2010, for treatment for diabetes. It was also noted that plaintiff’s blood
sugar varied from a high of 285 on February 21, 2011, to a low of 118 on August 22,
2011. (Tr. 19). On that date, though she reported some neck pain and that she did not
have much energy, she “appeared to be doing well (Exhibits 9F and 10F).” (Tr. 19).
With regard to CRNP Hubbard, the ALJ stated as follows:
Ms. Hubbard reported on October 13, 2011, that the claimant had been
her patient for greater than ten years. She did not consider the claimant
capable of an eight-hour workday. Her condition was expected to last
12 months or longer at the current level of severity; and she would be
limited to less than sedentary work as a result of her condition. (Exhibit
8F). However, there was no function-by-function assessment of specific
limitations, and the conclusive statement is not appropriate in that it
gives a conclusion reserved to the Commissioner. It is no more than
marginally consistent with the statements of treating and examining
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physicians, although a certified nurse practitioner is an acceptable
medical source defined in the Regulations.
(Tr. 19). Based on this evidence, the ALJ arrived at the RFC stated above. (Tr. 19).
Plaintiff’s only challenge to the ALJ’s decision is that he failed to give proper
weight to the opinion of CRNP Hubbard. Any other claims are waived. See Access
Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004) (“[A] legal
claim or argument that has not been briefed before the court is deemed abandoned
and its merits will not be addressed.”).
Although characterized by plaintiff as a “primary treating physician,” Hubbard
is not an acceptable medical source under the Commissioner’s guidelines.1 The
regulations distinguish between opinions coming from “acceptable medical sources”
and those from “other sources.”
20 C.F.R. §§ 404.1513(a), (d)(1) and
416.913(a)(d)(1). Acceptable medical sources include licensed physicians (medical
and osteopathic doctors) and licensed or certified psychologists, while other sources
can include public and private social welfare agencies, and observations by nonmedical sources, and other practitioners, such as nurse practitioners. See id. Thus,
a CRNP is not an “acceptable medical source” as defined in the regulations. Because
CRNP Hubbard is not an “acceptable medical source,” her opinion is not entitled to
Although the ALJ stated that a CRNP is an acceptable medical source, as noted above, this
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any special weight or significance.
See 20 C.F.R. §§ 404.1513(a), (d)(1),
404.1527(a)(2), 416.913(a), (d)(1) and 416.927(a)(2); Crawford v. Comm’r, 363 F.3d
1155, 1160 (11th Cir. 2004). Because nurse practitioners are not acceptable medical
sources, their opinions are not “medical opinions” and “cannot establish the existence
of an impairment,” although their opinions may be used to show the severity of an
impairment and how it affects a claimant’s ability to work. Himes v. Comm’r of Soc.
Sec., 585 Fed.Appx. 758, 762 (11th Cir. 2014).
Furthermore, the Commissioner’s regulations provide that medical source
opinions on some issues are reserved to the Commissioner. “A statement by a
medical source that you are ‘disabled’ or ‘unable to work’ does not mean that we will
determine that you are disabled.” 20 C.F.R. § 1527(d)(1). A Social Security
Administration policy interpretation clarifies that since statements that an individual
is disabled are “administrative findings that may determine whether an individual is
disabled, they are reserved to the Commissioner. Such opinions on these issues must
not be disregarded. However, even when offered by a treating source, they can never
be entitled to controlling weight or given special significance.” SSR 96-5p; see also
Bell v. Bowen, 796 F.2d 1350, 1353-54 (11th Cir. 1986). The Commissioner will
consider all statements made by treating physicians, but “will not give any special
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significance to the source of an opinion on issues reserved to the Commissioner.” 20
C.F.R. § 404.1527(d)(3).
CRNP Hubbard’s submission to the ALJ was in the form of a letter written in
May 2011, in which she stated that plaintiff was “unable to work and has to depend
on others for financial aide [sic].” (Tr. 364). She further stated that plaintiff has
“numerous severe health problems.” (Id.). In October 2011, Hubbard completed a
four-question, one-page questionnaire indicating that plaintiff could not sustain an
eight-hour workday, that her condition was expected to last twelve months or longer
at the current level of severity, and that her condition was such that she would be
limited to less than sedentary work as a result of her condition. (Tr. 323). Ms.
Hubbard did not explain the basis for her opinions, identify plaintiff’s alleged
conditions, or indicate any limitations resulting therefrom in either her May 2011
letter or the October 2011 questionnaire. (Tr. 323, 364).
Thus, the ALJ properly rejected Hubbard’s opinion. As he noted, she made
only conclusory statements concerning plaintiff regarding matters reserved to the
Commissioner. Furthermore, she failed to include any assessment of plaintiff’s
functional limitations. While the Commissioner may use evidence from other sources
concerning a claimant’s impairment and how it affects a claimant’s ability to work,
Hubbard provided no useful information.
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In addition, substantial weight supports the decision of the ALJ. For instance,
Dr. Samia S. Mozuddin, M.D., examined plaintiff in September 2010 and found that
she was limited in squatting due to back and knee pain and stiffness, but she had
normal muscle strength, symmetric, normal muscle tone, no atrophy or abnormal
movements, and her heel and toe weight bearing was normal. (Tr. 317). Dr.
Mozuddin further found that plaintiff had only mild favoring of her left leg. These
findings are inconsistent with Hubbard’s claim that plaintiff was capable of only lessthan-sedentary work.
Likewise, after Dr. David Gilliland, M.D., performed bifemoral artery bypass
surgery on plaintiff in 2009, her condition greatly improved.
Although plaintiff reported some leg pain in July 2010, she also stated that she felt
“fine,” and Dr. Gilliland noted that she was “doing well . . . with no problems.” (Tr.
301). Dr. Gilliland’s treatment notes also do not support Hubbard’s conclusions.
Consequently, plaintiff has failed to meet her burden of proving that she has
disabling limitations. See 42 U.S.C. §§ 423(d)(5)(A) and 1382c(a)(3)(H)(i); 20
C.F.R. §§ 404.1512(a), (c), 404.1529(a), (c), 416.912(a)(c) and 416.929(a), (c); Jones
v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999). Substantial evidence supports the
ALJ’s decision and his conclusion that plaintiff is not disabled within the meaning
of the Social Security Act.
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The court concludes that the ALJ’s determination that plaintiff is not disabled
is supported by substantial evidence and that proper legal standards were applied in
reaching this determination. The Commissioner’s final decision is therefore due to
be affirmed. A separate order will be entered.
DONE this 29th day of January, 2015.
HARWELL G. DAVIS, III
UNITED STATES MAGISTRATE JUDGE
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