Butler v. Astrue

Filing 22

MEMORANDUM OPINION AND ORDER entered. It is ORDERED that the decision of the Commissioner of Social Security denying plaintiff benefits be AFFIRMED. Signed by Magistrate Judge William E. Cassady on 3/30/2012. (eec)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ALLAN J. BUTLER,

:

Plaintiff,

:

v.

:

MICHAEL J. ASTRUE,
Commissioner of Social Security,

:

Defendant.

CA 11-00295-C

:
MEMORANDUM OPINION AND ORDER

The plaintiff brings this action, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3),
seeking judicial review of a final decision of the Commissioner of Social Security
denying his application for disability insurance benefits (“DIB”) and supplemental
security income (“SSI”). The parties have consented to the exercise of jurisdiction by
the Magistrate Judge, pursuant to 28 U.S.C. § 636(c), for all proceedings in this Court.
(See Doc. 21 (“In accordance with provisions of 28 U.S.C. 636(c) and Fed.R.Civ.P. 73, the
parties in this case consent to have a United States Magistrate Judge conduct any and all
proceedings in this case, including . . . order the entry of a final judgment, and conduct
all post-judgment proceedings.”).) Upon consideration of the administrative record
(“R.”) (Doc. 11), the plaintiff’s brief (Doc. 12), the Commissioner’s brief (Doc. 17), and the
arguments made by the parties at the March 14, 2012 Hearing, it is determined that the
Commissioner’s decision denying the plaintiff benefits should be affirmed.1
Any appeal taken from this memorandum opinion and order and judgment shall
be made to the Eleventh Circuit Court of Appeals. (See Doc. 25 (“An appeal from a judgment
entered by a Magistrate Judge shall be taken directly to the United States Court of Appeals for
this judicial circuit in the same manner as an appeal from any other judgment of this district
court.”).)
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Relevant Background
On January 14, 2009, the plaintiff filed an application for DIB (R. 127-133) and SSI
(R. 134-136)—alleging disability beginning March 31, 2007, due to paranoid
schizophrenia and injuries to his back and head—which was initially denied on March
11, 2009 (see R. 72-73). A hearing was then conducted before an Administrative Law
Judge on May 25, 2010 (see R. 32-71). On June 14, 2010, the ALJ issued a decision finding
that the claimant was not disabled (R. 14-31), and the plaintiff sought review from the
Appeals Council (see R. 11-13). The Appeals Council declined to review the ALJ’s
determination on April 28, 2011 (see R. 1-6)—making the ALJ’s determination the
Commissioner’s final decision for purposes of judicial review, see 20 C.F.R. §
404.981—and a complaint was filed in this Court on June 7, 2011 (see Doc. 1).
Standard of Review
In all Social Security cases, the plaintiff bears the burden of proving that he or she
is unable to perform his or her previous work. Jones v. Bowen, 810 F.2d 1001, 1005 (11th
Cir. 1986). In evaluating whether the plaintiff has met this burden, the examiner must
consider the following four factors: (1) objective medical facts and clinical findings; (2)
diagnoses of examining physicians; (3) evidence of pain; and (4) the plaintiff’s age,
education, and work history. Id. Once the plaintiff meets this burden, it becomes the
Commissioner’s burden to prove that the plaintiff is capable—given his or her age,
education, and work history—of engaging in another kind of substantial gainful

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employment that exists in the national economy. Sryock v. Heckler, 764 F.2d 834, 836
(11th Cir. 1985).

Although at the fourth step “the [plaintiff] bears the burden of

demonstrating the inability to return to [his or] her past relevant work, the
Commissioner of Social Security has an obligation to develop a full and fair record.”
Shnorr v. Bowen, 816 F.2d 578, 581 (11th Cir. 1987) (citations omitted).
The task for this Court is to determine whether the ALJ’s decision to deny plaintiff
benefits is supported by substantial evidence. Substantial evidence is defined as more
than a scintilla, and means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971). “In
determining whether substantial evidence exists, [a court] must view the record as a
whole, taking into account evidence favorable as well as unfavorable to the
[Commissioner’s] decision.”

Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986).

Courts are precluded, however, from “deciding the facts anew or re-weighing the
evidence.” Davison v. Astrue, 370 Fed. App’x 995, 996 (11th Cir. 2010) (per curiam)
(citing Dyer v. Bernhart, 395 F.3d 1206, 1210 (11th Cir. 2005)).

And, “[e]ven if the

evidence preponderates against the Commissioner’s findings, [a court] must affirm if the
decision reached is supported by substantial evidence.” Id. (citing Crawford v. Comm’r of
Soc. Sec., 363 F.3d 1155, 1158-59 (11th Cir. 2004)).
Discussion

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On appeal to this Court, the plaintiff’s two claims concern the ALJ’s purported
failure to explain the weight she assigned to (1) a mental residual functional capacity
evaluation (the RFC) completed by Patrician Noonan, CRNP; and (2) the testimony of
the plaintiff’s mother. Specifically, the plaintiff contends that:
1.

The ALJ committed reversible error by failing to fully discuss the weight
given to the plaintiff’s treating nurse practitioner under 20 C.F.R. §
404.1513(d) and SSR 06-03p and by basing her decision on the opinion of a
non-examining non-treating medical source; and

2.

The ALJ committed reversible error by failing to discuss the weight given
to the testimony of the plaintiff’s mother.

A.

Nurse Practitioner Noonan.

There is no doubt that the ALJ considered the opinion of Ms. Noonan (see R. 23
(summarizing the RFC she completed and discussing) & 24 (discounting her opinion)),
and although the ALJ did not give that opinion controlling weight, which she was not
obligated to do,2 the plaintiff argues that the ALJ’s failure “to discuss what weight, if
any, was given to Ms. Noonan’s opinion”—which the plaintiff contends equates to a
failure “to evaluate Ms. Noonan’s opinion under [section] 404.1513(d)(1) and SSR

“[A] nurse practitioner’s opinion is considered ‘other source’ evidence, and is not
given the same controlling weight as a “treating source.” Sommer v. Astrue, No. 3:10-CV-99,
2010 WL 5883653, at *3-5 (E.D. Tenn. Dec. 17, 2010) (quoting § 404.1527(d)); see also Madise v.
Astrue, Civil Action No. 08-00376-B, 2009 WL 3078294, at *11 (S.D. Ala. Sep. 23, 2009) (“‘[O]ther’
medical sources [ ] may present evidence of the severity of the claimant’s impairment and the
effect of the impairment on the claimant’s ability to work, but [such evidence] cannot establish
the existence of an impairment.”) (citing § 404.1513(d)(1)); Wilver v. Astrue, No.
8:07-CV-488-T-EAJ, 2008 WL 2824815, at *3 (M.D. Fla. July 21, 2008) (“A nurse practitioner’s
opinion is not afforded the same weight as a treating physician; rather it is only entitled to fair
consideration.”) (citations omitted)
2

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06-03p”—“is reversible error” (Doc. 12 at 6). The plaintiff further contends that this
error was compounded by the ALJ “basing her decision on the opinion of a
non-examining, non-treating medical source[,]” Dr. Eno. (Id.)
“Social Security Ruling 06-03p acknowledges that medical sources who do not
qualify as ‘acceptable medical sources’ under the regulations are still considered
valuable sources of information.” Sommer v. Astrue, No. 3:10-CV-99, 2010 WL 5883653,
at *3 (E.D. Tenn. Dec. 17, 2010). That ruling reflects a reality of how health care is
delivered in our country today, providing in pertinent part:
With the growth of managed health care in recent years and the emphasis
on containing medical costs, medical sources who are not “acceptable
medical sources,” such as nurse practitioners . . . have increasingly
assumed a greater percentage of the treatment and evaluation functions
previously handled primarily by physicians and psychologists. Opinions
from these medical sources, who are not technically deemed “acceptable
medical sources” under our rules, are important and should be evaluated
on key issues such as impairment severity and functional effects, along
with the other relevant evidence in the file.
Social Security Ruling (SSR) 06-03p, 2006 WL 2329939, at *3 (Aug. 9, 2006); see, e.g.,
Madise, 2009 WL 3078294, at *11 (“An ‘ALJ is not free to disregard the opinions of health
care professionals simply because they are not medical doctors.’”) (quoting O’Connor v.
Barnhart, No. C03–3081–MWB, 2004 WL 2192730, at *5 (N.D. Iowa Sep. 28, 2004)).
The ruling indicates that the ALJ is required, under the regulations, to
consider the evidence from “other sources,” although the regulations do
not explicitly discuss how to evaluate the “other source” evidence. SSR
06-03p, 2006 WL 2329939, at *4. The ruling states that the factors outlined
for determining the weight to afford a medical opinion in 20 C.F.R. §§
404.1527(d) and 416.927(d), “can be applied to opinion evidence from
‘other sources,’” and “these factors represent basic principles that apply to
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consideration of all opinions from medical sources who are not ‘acceptable
medical sources.’” Id. Additionally,”[t]he evaluation of an opinion from
a medical source who is not an ‘acceptable medical source’ depends on the
particular facts in each case” and “[n]ot every factor for weighing opinion [
] evidence will apply in every case.” Id. Nevertheless, the ruling
specifically states that,
[t]he adjudicator generally should explain the weight given to
opinions from these “other sources,” or otherwise ensure that the
discussion of the evidence in the determination or decision allows
a claimant or subsequent reviewer to follow the adjudicator’s
reasoning, when such opinions may have an effect on the outcome
of the case.
Id.
Sommer, 2010 WL 5883653, at *3-4 (footnote omitted and emphasis added); compare id. at
*4 (noting that “[t]he Sixth Circuit Court of Appeals appears to interpret the language of
SSR 06-03p as strongly indicating that the ALJ should explain the weight given to the
opinions of ‘other sources’”) (citing Cruse v. Commissioner of Soc. Sec., 502 F.3d 532, 540-42
(6th Cir. 2007) (which found that “opinions from non-medical sources who have seen the
claimant in their professional capacity should be evaluated by using the applicable
factors, including how long the source has known the individual, how consistent the
opinion is with other evidence, and how well the source explains the opinion”)), with
Phillips v. Astrue, 413 Fed. App’x 878, 884 (7th Cir. 2010) (“In deciding how much weight
to give to opinions from these ‘other medical sources,’ an ALJ should apply the same
criteria listed in § 404.1527(d)(2).”),3 with Franklin v. Astrue, No. 3:09-CV-56 (CDL), 2009

The applicable factors, outlined in 20 C.F.R. § 404.1527(d)(2)-(6), are: (1) the length
of the treatment relationship and the frequency of examination; (2) the nature and extent of the
3

6

WL 3299820, at *4 (M.D. Ga. Oct. 13, 2009) (noting that “[t]o promote meaningful review,
the Eleventh Circuit Court of Appeals obligates the ALJ to ‘state with sufficient clarity
the legal rules being applied and the weight accorded the evidence considered[,]’” citing
SSR 06-03p, and concluding that the ALJ’s explanation—“‘[t]he opinion of the vocational
evaluator . . . is not given great weight in that her opinion is inconsistent with the
opinions mentioned above’”—“provided sufficient reasoning” for rejecting the opinion)
(initially quoting Ryan v. Heckler, 762 F.2d 939, 941-42 (11th Cir. 1985)) (order adopting
report and recommendation of the Magistrate Judge); see also Slone v. Commissioner of Soc.
Sec., No. 1:09-cv-705, 2010 WL 6004386, at *7-8 (S.D. Ohio Nov. 19, 2010) (rejecting
plaintiff’s asserted assignment of error “that the ALJ improperly dismissed the opinion
and RFC findings of [a] treating [certified nurse practitioner]” where “[t]he decision of
the ALJ considered the factors required by SSR 06-03p”).
While, in her decision, the ALJ exhaustively summarizes Ms. Noonan’s RFC (see
R. 23), the following is all that the decision offers as to the “weight” the ALJ assigns to
Ms. Noonan’s opinion:
The Administrative Law Judge recognizes that Ms. Noonan indicated the
claimant has marked limitations in his ability . . . to understand, carry out
and remember instructions and respond appropriately to customary work
pressures. The Administrative Law Judge does not give controlling
weight to that opinion because Ms. Noonan is a nurse practitioner not a
psychiatrist. In fact, it appears the claimant only presented for medication
treatment relationship; (3) the supportability of and evidentiary basis for the opinion; (4) the
consistency of the opinion with the record as a whole; (5) the specialization of the source; and (6)
anything else that tends to support or contradict the opinion.

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management. . . . The Administrative Law Judge further notes that the
therapist at Altapointe found the claimant’s Global Assessment of
Functioning (GAF) was 65 which indicates only mild symptoms.
(R. 24.)4
Had the sole basis for rejecting Ms. Noonan’s opinion been that she “is a nurse
practitioner not a psychiatrist,” remand would be necessary. See, e.g., Barry v. Astrue,
No. CV-09-1677-PHX-NVW, 2010 WL 3168630, at *11 (D. Ariz. Aug. 10, 2010) (noting
that “the opinion of a nurse practitioner may be given more weight than that of even a
treating source if the nurse practitioner ‘has seen the individual more often than the
treating source and has provided better supporting evidence and a better explanation of
his or her opinion’” and, therefore, an “ALJ’s conclusory reference to the fact that [the
nurse practitioner] is not a licensed doctor is clearly an insufficient basis, without further
explanation, for entirely disregarding her opinion”) (quoting SSR 06-03p). But the
ALJ’s decision, by pointing out that it appeared that “the claimant only presented for
medication management,” implicates three of the factors set forth in § 404.1527(d): the
nature and extent of the treatment relationship; the supportability of and evidentiary

There is little doubt that had the ALJ failed to “discuss or even mention” Ms.
Noonan’s opinion, that would have been error. See, e.g., Hanshaw v. Astrue, No. ED CV
08-434-PLA, 2009 WL 1844935, at *3 (C.D. Cal. June 25, 2009) (error where “the ALJ did not
discuss or even mention [the nurse practitioner’s] opinion—“the ALJ was required to address
Ms. Spiedel’s opinion in his decision, and if the ALJ wished to reject it, he needed to explain the
weight given to that opinion”) (citing, inter alia, SSR 06-03p).
4

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basis for the opinion; and the specialization of the source. 5

Moreover, the ALJ’s

decision, by noting “that the therapist at Altapointe found the claimant’s Global
Assessment of Functioning (GAF) was 65 which indicates only mild symptoms,”
indicates that Ms. Noonan’s opinion is not consistent with the record as a
whole—another factor set forth in § 404.1527(d). The ALJ has, accordingly, “ensure[d]
that the discussion of [this] evidence[—reasons for discounting Ms. Noonan’s
opinion—]in [her] decision allows [this Court] to follow [her] reasoning.” SSR 06-03p,
2006 WL 2329939, at *6; compare R. 24, with Sommer, 2010 WL 5883653, at *4-5 (“The ALJ
discussed [nurse practitioner] Hosey’s 2007 and 2009 opinions in detail, yet, the ALJ
does not indicate what applicable factors he used when evaluating NP Hosey’s
assessments. The ALJ did not discuss such factors as the supportability of the opinion,
its consistency with other evidence, or how well the source explained the opinion. . . .
Accordingly, the Court finds that the ALJ committed error by not providing a basis for
discounting the non-medical source opinion of NP Hosey when she evaluated the
Plaintiff in her professional capacity.”) (citation and footnote omitted).

See also

There is no argument—and the Court’s independent review of the administrative
record does not reveal a basis for asserting that—Ms. Noonan’s opinion should be afforded the
weight of a treating source because, at Altapointe, she is/was “a member of a treatment team
that included a physician, psychologist or other acceptable medical source who could potentially
give her treating source status.” Williams v. Astrue, No. 4:09CV3116, 2011 WL 1226099, at *14 (D.
Neb. Mar. 28, 2011) (distinguishing Shontos v. Barnhart, 328 F.3d 418 (8th Cir. 2003), in which the
Eighth Circuit held “sources that ALJs usually consider to be ‘other’ medical sources can be
considered ‘treating’ sources when they were part of, and therefore represent the views of, a
treatment team that includes an acceptable medical source in accordance with the regulations,”
Haman v. Astrue, Case No. 8:08CV416, 2009 WL 1846825, at *9-10 (D. Neb. June 26, 2009) (citing
328 F.3d at 426) (emphasis added)).
5

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Hussnatter v. Astrue, No. CV–09–3261 (SJF), 2010 WL 3394088, at *21 (E.D.N.Y. Aug. 20,
2010) (“the ALJ properly afforded reduced weight to the opinion of [a nurse practitioner]
regarding plaintiff's functional assessment” where that functional assessment was
“inconsistent with other objective medical evidence in the record from consulting
physicians”); Smith v. Barnhart, No. 04-1132-WEB, 2005 WL 418595, at *8 (D. Kan. Feb. 8,
2005) (“The ALJ chose not to accord substantial weight to the nurse practitioner’s
opinion because it was inconsistent with other objective medical evidence as well as
plaintiff's daily activities.”).
B.

The plaintiff’s mother, Betty Ramsey.

While the plaintiff contends that, “[a]lthough the ALJ summarized [Ms.
Ramsey’s] testimony [see R. 21], she fails to discuss it anywhere else in her decision and
does not discuss the amount of weight, if any, given to that testimony” (Doc. 12 at 7), the
Commissioner contends that in addition to summarizing Ms. Ramsey’s testimony, the
ALJ also “specifically noted that ‘[Ms. Ramsey] had a hard time answering questions
posed to [her] during various visits to . . . counselors” (Doc. 17 at 10 (quoting R. 24)).
Ms. Ramsey testified regarding the plaintiff’s visits to Altapointe—her testimony
revealed that she had permission to sit in on his sessions—and related what occurred
during those sessions. (See R. 64-66.) During this testimony, the ALJ admonished the
plaintiff’s counsel regarding hearsay in Ms. Ramsey’s testimony—“Counsel, I’m going
to start asking her blunt[ly] about the hearsay that’s going on here. So if you want to go

10

down this road, I’m going to ask her a lot of questions about what the therapist’s
impressions are.” (R. 65.) The ALJ then questioned Ms. Ramsey regarding whether
the plaintiff’s therapist talked to her about her son’s drug use:
Q.
Okay. You started down the [path] with the therapist. Doe the
therapist talk to you about his drug use? Have you had any discussions
in therapy about the drug use?
A.

No. Like I said, I think that he doesn’t – he’s, you know, test clean.

Q.

Why are they testing him?

A.

I don’t know if they still are.

Q.
use?

I mean have you ever had a discussion with them about his drug

A.

Not since –

Q.
I mean you’re – it seems like it’s evasive. I just want to know if you
discuss – if you’re that involved with the case managers, and he went in
and he was told by a case manager that he had a drug problem and he was
a cocaine abuser, if you’ve actually ever discussed the abuse of the cocaine
with these case managers. He’s getting drug treatment, and I’d like to
know your discussion with them about the drug use. Have they told you
anything to look out for, any erratic behavior?
A.

No, ma’am.

Q.

What have they discussed with you?

A.

No, ma’am.

Q.

None of that?

A.

No.

Q.

You’re never had a discussion with them about his drug use?

A.

I’m not being evasive. Since [Searcy] I don’t believe I have.

11

Q.

Okay. But they’re testing him now, drug testing?

A.

I don’t know if they are or not.

Q.

Okay, all right.

A.

I just assumed –

Q.

Well, it seemed like you had stated that you thought that they have.

(R. 66-67.)
It appears therefore that the statement in the ALJ’s decision that “both the
claimant and his mother had a hard time answering questions posed to them [regarding]
various visits to the counselors” is a credibility determination, at least as to Ms. Ramsey,
based, at least in part, on this exchange. As this Court has made clear, “[t]here is no
requirement in the Social Security regulations or rulings that the ALJ assign any weight
to non-medical sources, only that the evidence be considered.” Reed v. Astrue, Civil
Action No. 09-0149-KD-N, 2009 WL 3571699, at *3 (S.D. Ala. Oct. 26, 2009) (citing 20
C.F.R. § 416.913(d); SSR 06-03p); see also Rask v. Astrue, No. 3:10–cv–01082–SI, 2011 WL
5546935, at *11 (D. Or. Nov. 14, 2011) (“Social Security regulations require the ALJ to
consider all relevant evidence. This includes evidence submitted by family members,
such as Ms. Rask’s mother and ex-husband.”) (citing 20 C.F.R. §§ 404.1545(a)(3);
404.1513(d)(4)).

Further, the Eleventh Circuit does “not require an explicit finding

about credibility; instead findings may be by implication if they are ‘obvious to the
reviewing court.’” Carter v. Astrue, 228 Fed. App’x 967, 969 (11th Cir. 2007) (per curiam)
(quoting Tieniber v. Heckler, 720 F.2d 1251, 1255 (11th Cir. 1983)). Because it is obvious to

12

this Court that the ALJ chose not to accord weight to Ms. Ramsey’s testimony based on
the ALJ’s concerns regarding its forthrightness, see Carter, 228 Fed. App’x at 969, the
plaintiff’s second ground for appeal also fails. See Rask, 2011 WL 5546935, at *11 (noting
that an ALJ may “disregard lay witness testimony [if] ‘he or she expressly determines to
disregard such testimony and gives reasons germane to each witness for doing so’”)
(quoting Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001)).
Conclusion
Because the Court finds that the ALJ’s discussion of her consideration of both Ms.
Noonan’s opinion and Ms. Ramsey’s testimony allows a “subsequent reviewer[—this
Court—]to follow [her] reasoning,” this Court finds that the ALJ’s decision is supported
by substantial evidence.

Accordingly, it is ORDERED that the decision of the

Commissioner of Social Security denying plaintiff benefits be AFFIRMED.
DONE this the 30th day of March, 2012.
s/WILLIAM E. CASSADY
UNITED STATES MAGISTRATE JUDGE

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