Smith v. Saul
Filing
19
MEMORANDUM OPINION AND ORDER entered that the decision of the Commissioner of Social Security denying Plaintiff benefits be affirmed. Signed by Magistrate Judge P. Bradley Murray on 4/1/2021. (eec)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
DEREK TYLER SMITH,
Plaintiff,
:
:
vs.
:
ANDREW M. SAUL,
Commissioner of Social Security,
CA 20-0288-MU
:
:
Defendant.
MEMORANDUM OPINION AND ORDER
Plaintiff Derek Tyler Smith 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 claims for a period of disability, disability insurance benefits, and
supplemental security income. 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. (Docs. 15 & 16 (“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, . . . order the entry of a final
judgment, and conduct all post-judgment proceedings.”)). Upon consideration of the
administrative record, Plaintiff’s brief, the Commissioner’s brief, and the oral arguments
of the parties, the Court concludes that the Commissioner’s decision denying benefits
should be affirmed.1
1
Any appeal taken from this memorandum opinion and order and judgment shall
be made to the Eleventh Circuit Court of Appeals. (See Docs. 15 & 16 (“An appeal from a
(Continued)
I. Procedural Background
Plaintiff protectively filed applications for disability insurance benefits and
supplemental security income on June 22, 2016,2 alleging disability beginning on March
6, 1992. (Compare Doc. 9, PageID. 79 with id., PageID. 344-51). Smith’s claims were
initially denied on August 2, 2016 (id., PageID. 208-09 & 242-53) and, following
Plaintiff’s September 27, 2016 request for a hearing before an Administrative Law
Judge (“ALJ”) (id., PageID. 254-56), a hearing was initially conducted before an ALJ on
April 18, 2018 (see id., PageID. 176-86), with a supplementary hearing being held on
May 15, 2019 (id., PageID. 101-64).3 On June 4, 2019, the ALJ issued a decision
finding that the claimant was not disabled and therefore, not entitled to social security
benefits. (Id., PageID. 79-94). The ALJ determined at the fifth step of the five-step
sequential evaluation process that Smith retains the residual functional capacity to
perform sedentary work and, more specifically, those sedentary jobs identified by the
vocational expert (“VE”) at the supplemental administrative hearing conducted on May
15, 2019. (Compare id., PageID. 23 & 93-94 with id., PageID. 160-63). On June 20,
2019, the Plaintiff appealed the ALJ’s unfavorable decision to the Appeals Council (see
id., PageID. 279-81); the Appeals Council denied Smith’s request for review on April 29,
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.”)).
2
On January 18, 2017, the Social Security Administration published revisions to its
regulations which apply to claims filed on or after March 27, 2017. See, e.g., Lee v. Saul, 2020
WL 5413773, *5 (M.D. Ala. Sept. 9, 2020). Given the protective filing date of Reese’s
applications of March 23, 2017, the revisions to the Commissioner’s regulations are not
applicable in this case.
3
At the supplemental hearing, Smith amended his alleged onset date to June 22,
2016. (Compare id., PageID. 79 with id., PageID. 103-04).
2
2020 (id., PageID. 63-65). Thus, the hearing decision became the final decision of the
Commissioner of Social Security.
Plaintiff alleges disability due to Lyme disease, agoraphobia with panic attacks,
mood disorders, bipolar disorder, anxiety disorder, infective myositis, fatigue,
headaches, and history of substance abuse disorder. The Administrative Law Judge
(ALJ) made the following relevant findings:
3.
The claimant has the following severe impairments: Lyme
disease; agoraphobia with panic attacks; mood disorders; bipolar
disorder; anxiety disorder; infective myositis; fatigue; headaches;
and history of substance abuse disorder (20 CFR 404.1520(c) and
416.920(c)).
.
.
.
4.
The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the
listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20
CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and
416.926).
.
.
.
5.
After careful consideration of the entire record, the
undersigned finds that the claimant has the residual functional
capacity to perform sedentary work as defined in 20 CFR 404.1567(a)
and 416.967(a) except that the claimant can occasionally climb
ramps, stairs, ladders, ropes, and scaffolds; and can occasionally
stoop, kneel, crouch, and crawl. The claimant’s ability to understand,
remember, and apply information and concentrate, persist, and
maintain pace is limited to performing simple and routine tasks, and
his ability to use judgment is limited to simple work-related
decisions. The claimant can interact with supervisors, coworkers,
and the public occasionally, and can deal with occasional changes in
a routine work setting.
.
.
.
6.
The claimant is unable to perform any past relevant work (20
CFR 404.1565 and 416.965).
3
.
.
.
7.
The claimant was born on March 6, 1992 and was 24 years old,
which is defined as a younger individual age 18-44, on the alleged
disability onset date (20 CFR 404.1563 and 416.963).
8.
The claimant has at least a high school education and is able
to communicate in English (20 CFR 404.1564 and 416.964).
9.
Transferability of job skills is not material to the determination
of disability because using the Medical-Vocational Rules as a
framework supports a finding that the claimant is “not disabled,”
whether or not the claimant has transferable job skills (See SSR 8241 and 20 CFR Part 404, Subpart P, Appendix 2).
10.
Considering the claimant’s age, education, work experience,
and residual functional capacity, there are jobs that exist in
significant numbers in the national economy that the claimant can
perform (20 CFR 404.1569, 404.1569a, 416.969, and 416.969a).
.
.
.
11.
The claimant has not been under a disability, as defined in
the Social Security Act, from June 22, 2016, through the date of this
decision (20 CFR 404.1520(g) and 416.920(g)).
(Doc. 9, PageID. 82, 83, 85, 92, 93 & 94 (emphasis in original)).
II. Standard of Review and Claims on Appeal
In all Social Security cases, an ALJ utilizes a five-step sequential evaluation:
to determine whether the claimant is disabled, which considers: (1)
whether the claimant is engaged in substantial gainful activity; (2) if not,
whether the claimant has a severe impairment; (3) if so, whether the
severe impairment meets or equals an impairment in the Listing of
Impairments in the regulations; (4) if not, whether the claimant has the
RFC to perform her past relevant work; and (5) if not, whether, in light of
the claimant’s RFC, age, education and work experience, there are other
jobs the claimant can perform.
4
Watkins v. Commissioner of Social Sec., 457 Fed. Appx. 868, 870 (11th Cir. Feb. 9,
2012)4 (per curiam) (citing 20 C.F.R. §§ 404.1520(a)(4), (c)-(f), 416.920(a)(4), (c)-(f);
Phillips v. Barnhart, 357 F.3d 1232, 1237 (11th Cir. 2004)) (footnote omitted). The
claimant bears the burden, at the fourth step, of proving that he is unable to perform his
previous work. Jones v. Bowen, 810 F.2d 1001 (11th Cir. 1986). In evaluating whether
the claimant 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 claimant’s age, education and work history. Id. at
1005. Although “a claimant bears the burden of demonstrating an inability to return to
his past relevant work, the [Commissioner of Social Security] has an obligation to
develop a full and fair record.” Schnorr v. Bowen, 816 F.2d 578, 581 (11th Cir. 1987)
(citations omitted). If a plaintiff proves that he cannot do her past relevant work, as here,
it then becomes the Commissioner’s burden—at the fifth step—to prove that the plaintiff
is capable—given his age, education, and work history—of engaging in another kind of
substantial gainful employment that exists in the national economy. Phillips, supra, 357
F.3d at 1237; Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999), cert. denied, 529
U.S. 1089, 120 S.Ct. 1723, 146 L.Ed.2d 644 (2000); Sryock v. Heckler, 764 F.2d 834,
836 (11th Cir. 1985).
The task for the Magistrate Judge is to determine whether the Commissioner’s
decision to deny claimant benefits is supported by substantial evidence. Substantial
evidence is defined as more than a scintilla and means such relevant evidence as a
4
“Unpublished opinions are not considered binding precedent, but they may be
cited as persuasive authority.” 11th Cir.R. 36-2.
5
reasonable mind might accept as adequate to support a conclusion. Richardson v.
Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). “In determining whether
substantial evidence exists, we 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).5 Courts are precluded, however, from
“deciding the facts anew or re-weighing the evidence.” Davison v. Astrue, 370 Fed.
Appx. 995, 996 (11th Cir. Apr. 1, 2010) (per curiam), citing Dyer v. Barnhart, 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. Commissioner of Social Security, 363 F.3d
1155, 1158-1159 (11th Cir. 2004).
On appeal to this Court, Smith asserts two reasons the Commissioner’s decision
to deny her benefits is in error (i.e., not supported by substantial evidence): (1) the ALJ
committed reversible error, in violation of 20 C.F.R. §§ 404.1527(d) and 416.927(d), in
failing to assign controlling weight to the opinions of treating physicians Dr. Guido
Ludergnani and Dr. Jonathan Forester and, instead, adopting his own medical opinion
in violation of SSR 96-2p; and (2) the ALJ erred in failing to properly evaluate the
opinions two nurse practitioners, Scott Durrance and Leif Erik Sternung under 20 C.F.R.
§§ 404.1513, 404.1527, 416.913 & 416.927, as he rejected them because they were not
derived from an acceptable medical source instead of evaluating them as opinions from
5
This Court’s review of the Commissioner’s application of legal principles,
however, is plenary. Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
6
other medical sources. The undersigned considers both of these assignments of error
together.
A. Opinion Evidence. “Weighing the opinions and findings of treating,
examining, and non-examining physicians is an integral part of the process for
determining disability.” Kahle v. Commissioner of Social Security, 845 F.Supp.2d 1262,
1271 (M.D. Fla. 2012). In general, “the opinions of examining physicians are given more
weight than those of non-examining physicians, treating physicians are given more
weight than those of physicians who examine but do not treat, and the opinions of
specialists are given more weight on issues within the area of expertise than those of
non-specialists.” McNamee v. Social Security Administration, 164 Fed.Appx. 919, 923
(11th Cir. 2006). In assessing the medical evidence, “[t]he ALJ must state with
particularity the weight given to different medical opinions and the reasons therefor[,]”
Romeo v. Commissioner of Social Security, 686 Fed.Appx. 731, 732 (11th Cir. 2017)
(citing Winschel v. Commissioner of Social Security, 631 F.3d 1176, 1179 (11th Cir.
2011)), and the ALJ’s stated reasons must be legitimate and supported by the record,
see Tavarez v. Commissioner of Social Security, 638 Fed.Appx. 841, 847 (11th Cir.
Jan. 7, 2016) (finding that the “ALJ did not express a legitimate reason supported by the
record for giving [the consulting physician’s] assessment little weight.”); compare id. with
Nyberg v. Commissioner of Social Security, 179 Fed.Appx. 589, 590-591 (11th Cir. May
2, 2006) (unpublished) (recognizing that an ALJ “’must specify what weight is given to a
treating physician’s opinion and any reason for giving it no weight, and failure to do so is
reversible error.’”).
7
“When weighing each medical opinion,6 the ALJ must consider whether the
doctor has examined the claimant; the doctor’s relationship with the claimant; the
medical evidence supporting the doctor’s opinion; how consistent the doctor’s opinion is
with the record as a whole; and the doctor’s specialization.” Muniz v. Commissioner of
Social Security, 716 Fed.Appx. 917, 919 (11th Cir. Nov. 27, 2017), citing 20 C.F.R. §
416.927(c) (footnote added); see also Jacks v. Commissioner, Social Security
Administration, 688 Fed.Appx. 814, 819 (11th Cir. May 23, 2017) (“The ALJ must
consider a number of factors in determining how much weight to give to each medical
opinion, including whether the doctor has examined the claimant, the medical evidence
and explanation supporting the doctor’s opinion, and how consistent the doctor’s
‘opinion is with the record as a whole.’” (citations omitted)). “These factors apply to both
examining and non-examining physicians.” Huntley v. Social Security Administration,
Commissioner, 683 Fed.Appx. 830, 832 (11th Cir. Mar. 29, 2017) (citations omitted).
When considering an examining, non-treating medical opinion, “[t]he more
a medical source presents relevant evidence to support an opinion,
particularly medical signs and laboratory findings, the more weight [the
administrative law judge] will give that opinion. The better an explanation a
source provides for an opinion, the more weight [the administrative law
judge] will give that opinion.” Moreover, “because nonexamining sources
have no examining or treating relationship with [the applicant], the weight
[the administrative law judge] will give their opinions will depend on the
degree to which they provide supporting explanations for their opinions.” In
addition, “the more consistent an opinion is with the record as a whole, the
more weight [the administrative law judge] will give to that opinion.”
6
“Medical opinions are statements from acceptable medical sources that reflect
judgments about the nature and severity of [a claimant’s] impairment(s), including [a claimant’s]
symptoms, diagnosis and prognosis, what [a claimant] can still do despite impairment(s), and [a
claimant’s] physical or mental restrictions.” 20 C.F.R. § 416.927(a)(1).
8
Id. at 832-33 (internal citations omitted; footnote added). A panel of the Eleventh Circuit
has determined that an “ALJ is not required to explicitly address each” of the factors set
forth in § 416.927(c), see Lawton v. Commissioner of Social Security, 431 Fed.Appx.
830, 833 (11th Cir. June 22, 2011), and that the core inquiry is whether “good cause”
exists for rejecting particular medical opinions, see id.
Good cause is shown when the: “(1) treating physician’s opinion was not
bolstered by the evidence; (2) evidence supported a contrary finding; or
(3) treating physician’s opinion was conclusory or inconsistent with the
doctor’s own medical records.” Phillips v. Barnhart, 357 F.3d 1232, 1241
(11th Cir. 2004). Where the ALJ articulate[s] specific reasons for failing to
give the opinion of a treating physician controlling weight, and those
reasons are supported by substantial evidence, there is no reversible
error. Moore [v. Barnhart], 405 F.3d [1208,] 1212 [(11th Cir. 2005)].
Gilabert v. Commissioner of Social Sec., 396 Fed.Appx. 652, 655 (11th Cir. Sept. 21,
2010) (per curiam).
In addition to the foregoing, it is clear that nurse practitioners are not “acceptable
medical sources,” see, e.g., 20 C.F.R. §§ 404.1513(a), 416.913(a), and, therefore, they
“are weighed the same as any other lay witness.” McBride v. Berryhill, 2017 WL
2313008, *4 (S.D. Ga. Apr. 21, 2017) (citations omitted), report and recommendation
adopted, 2017 WL 2312991 (S.D. Ga. May 26, 2017).
And all that is required of an ALJ regarding non-medical source evidence
is that the evidence be considered. See 20 C.F.R. §§ 416.926, 416.926a,
416.927, 416.919. There is no requirement that an ALJ give any particular
amount of weight to non-medical source evidence. See id.
In rejecting lay witness testimony, the ALJ need only provide
“arguably germane reasons” for dismissing the testimony, even if she
does “not clearly link [her] determination to those reasons.” An ALJ may
reject lay witness testimony if it is inconsistent with the record.
The ALJ may “draw inferences logically flowing from the evidence.”
Further, “i]f the ALJ gives germane reasons for rejecting testimony by one
9
witness, the ALJ need only point to those reasons when rejecting similar
testimony by a different witness.”
Id. at *4-5 & *5 (most internal citations omitted).
With these principles in mind, the undersigned considers whether the ALJ
improperly considered the opinion evidence in this case. The ALJ analyzed the opinion
evidence from physicians and other sources (about which Plaintiff makes reference) in
the following manner:
As for the opinion evidence, the undersigned gives little weight to the April
2017 opinions [of] L. Erik Sternung, ARNP and Guido Ludergnani, M.D.,
two of the claimant’s treatment providers. They opined that the claimant
has extreme limitations in the ability to interact appropriately with the
general public, coworkers, and peers; to understand, remember, and carry
out complex instructions; maintain attention and concentration for
extended periods; to perform at a consistent pace without an
unreasonable number and length of rest periods; to respond to customary
work pressures; and in his ability to complete a normal workday and
workweek without interruptions from psychologically based symptoms.
They further opined that the claimant had marked limitations in his ability
to ask simple questions or request assistance; to understand, remember,
and carry out simple instructions; to understand, remember, and carry out
repetitive tasks; to perform activities within a schedule, maintain regular
attendance, and be punctual within customary tolerances; to sustain a
routine without supervision; to make simple work-related decisions; to
respond appropriately to supervision; to respond appropriately to changes
in a work setting; and to be aware of normal hazards and take appropriate
precautions. They further opined that the claimant has an extreme
estimated degree of deterioration in his personal habits, and a marked
constriction of interests [] in his daily activities.
No support is provided for these significant limitations. Indeed, these
opinions are wholly inconsistent with the overall evidence of record, which
show improved mental functioning when the claimant is compliant with his
medication and is not taking illegal substances. Furthermore, these
opinions are inconsistent with the claimant’s reported activities of daily
living during the period of adjudication, which include doing chores around
the house, attending church, working a part-time job, and taking online
courses. Finally, Erik Sternung is a nurse practitioner, and therefore not a
medically acceptable source. There was minimal indication in the record
that Dr. Ludergnani had regular contact with the claimant. As the opinions
outlined above are unsupported by clinical evidence and inconsistent with
10
both the medical record and the claimant’s reported activities of daily
living, the undersigned gives [them] little weight.
.
.
.
The undersigned also gives little weight to the opinion of Jonathan
Forester, M.D., that the claimant cannot engage in any form of gainful
activity on a repetitive, competitive and productive basis over an 8 hour
workday, 40 hours a week, without missing more than 2 days of work per
month or experiencing frequent interruptions to his work routine due to his
symptoms. As an initial matter, this opinion is on an issue reserved to the
Commissioner. Dr. Forester does not provide a function-by-function
analysis of the claimant’s limitations, and what opinion he does render is
based upon the subjective complaints of the claimant. Indeed, his opinion
is not consistent with the medical evidence of record reflecting that the
claimant was doing well with his treatment and exhibiting minimal
symptoms. As there is no reasonable support given for Dr. Forester’s
opinion and it is inconsistent with the overall evidence of record, the
undersigned gives this opinion little weight.
.
.
.
The undersigned notes but gives little weigh[t] to the opinion of Louann
Smith, the claimant’s mother. Mrs. Smith is not a medically acceptable
source, and her opinion is not consistent with the claimant’s functioning or
the other opinions found in the medical evidence of record. The
undersigned similarly gives no weight to the opinions of the claimant’s
other treatment provider, Scott Durrance, MSN, ARNP, found in Exhibit 5F
and 20F, as this nurse practitioner is also not an acceptable medical
source.
(Doc. 9, PageID. 89-90, 90-91 & 92 (internal citations omitted)).
Initially, the undersigned finds the reasons offered by the ALJ for affording little
weight to the mental RFC opinions of Leif Erik Sternung, ARNP and Dr. Guido
Ludergnani supported by substantial evidence. As the Court sees it, the ALJ offered
three reasons for the “little weight” afforded the opinions of Sternung and Ludergnani:
(1) no clinical support was provided for those significant limitations (in other words, the
limitations were inconsistent with the clinical findings of Sternung and Ludergnani); (2)
the limitations were inconsistent with the overall medical evidence of record (that is, the
11
noted limitations are not bolstered by the evidence); and (3) the limitations are
inconsistent with the claimant’s reported activities of daily living during the period of
adjudication. So, clearly, the ALJ stated with particularity the weight (“little”) afforded to
the medical RFC opinions of Sternung and Ludergnani and the reasons therefor. See
Romeo, supra, 638 Fed.Appx. at 847. And the undersigned finds that “good cause” was
shown for giving the RFC opinions of Sternung and Ludergnani little weight because,
the ALJ is right, the extreme limitations noted are not supported by the clinical evidence
recorded by Sternung (see, e.g., Doc. 9, PageID. 535-549 & 640-45 (objective
observations consistently revealed Smith to be cooperative and engaged in the
interview with appropriate eye contact; no evidence of psychomotor agitation or
retardation; speech was fluent and normal in rate, rhythm, and tone; he was alert and
oriented to person, place, time and situation; his mood appeared good and his affect
congruent; his thought process was organized, linear and goal directed; more often than
not, his thought content revealed no evidence of auditory or visual hallucinations,
delusions or paranoia, and no loose associations, tangentiality or circumstantiality; he
denied suicidal and homicidal ideations; his memory appeared grossly intact; and his
insight and judgment appeared to be intact and adequate)) nor are they consistent with
Smith’s admitted activities of daily living (see id., PageID. 389-96 (functional report
completed by Plaintiff reflects that, on a daily basis, he listens to music, watches
television, walks outside, talks on the telephone, uses the computer, helps care for his
daughter, can take care of all his personal needs, and performs light household chores,
like taking the trash outside, washing the cars, doing dishes, and vacuuming); compare
id. with id., PageID. 107, 119 & 151 (plaintiff’s testimony that he takes online classes,
12
paints, and reads); accord id., PageID. 679, 684 & 697 (Smith told a treatment provider
in late 2018 and early 2019 he was exercising 6 times a week lifting light weights)).7
Accordingly, the Court finds that the ALJ did not err in affording only little weight to the
mental RFC limitation opinions of Sternung and Ludergnani.
On April 3, 2019, Dr. Jonathan Forester completed a pre-printed check-the-box,
multiple choice and fill-in-the-blank questionnaire form; the opinion reflected thereon
was given “little” weight by the ALJ. (Compare Doc. 9, PageID. 90-91 with id., PageID.
883). Initially, this Court finds it hard to view Dr. Forester’s opinion (see id. (Forester
checked “No” when asked if Smith could “engage in any form of gainful employment on
a repetitive, competitive and productive basis over an eight hour work day, forty hours a
week, without missing more than 2 days of work per month or experiencing frequent
interruptions to his[] work routine due to symptoms of his[] disease or medical
problems”)) as anything other than an opinion regarding whether Smith can hold a job,
which, of course, is a vocational opinion as opposed to a medical one and, as such, a
question reserved to the ALJ/Commissioner. See Hutchinson v. Astrue, 408 Fed.Appx.
324, 328 (11th Cir. Jan. 18, 2011). Nevertheless, even assuming that the ALJ
erroneously concluded that Dr. Forester’s opinion is on an issue reserved to the
Commissioner (see Doc. 9, PageID. 90), any such error in this regard is harmless since
the ALJ also noted that Dr. Forester did “not provide a function-by-function analysis of
the claimant’s limitations” and that his opinion was not “consistent with the medical
7
In addition, the undersigned cannot find any error in the ALJ’s statement that
Sternung, as a nurse practitioner, is not an acceptable medical course, since that statement is
absolutely true. See McBride, supra, at *4 (nurse practitioners are not acceptable medical
sources under the social security regulations)).
13
evidence of record, reflecting that the claimant was doing well with his treatment and
exhibiting minimal symptoms.” (Id.). Indeed, not only did Dr. Forester not perform a
function-by-function analysis (compare id. with PageID. 883), he provided no
explanation for his opinion, though supplied plenty of room for doing so (id.); therefore,
his “checkbox” opinion is conclusory and “weak evidence at best.” Mason v. Shalala,
994 F.2d 1058, 1065 (3d Cir. 1993) (“Form reports in which a physician’s obligation is
only to check a box or fill in a blank are weak evidence at best.”); see also Terrell v.
Saul, 2020 WL 2097748, *6 n.9 (S.D. Ala. May 1, 2020) (finding fill-in-the-blank PCEs
for which the physician supplied no medical basis to be conclusory); accord O’Connell
v. Commissioner of Social Security, 2020 WL 1492824, *5 (M.D. Fla. Mar. 27, 2020)
(“Dr. Komar’s opinions are ‘checkbox/fill-in-the-blank’ forms that courts in this District
disfavor. Such forms . . . ‘have limited probative value because they are conclusory and
provide little narrative or insight into the reasons behind the conclusions.’”). Moreover,
the ALJ is correct that Dr. Forester’s opinion is not consistent with the medical evidence
of record (see, e.g., Doc. 9, PageID. 561 (on June 1, 2017, Dr. George McCullars noted
that Plaintiff was physically improved “with resolution of night sweats, no longer w[ith]
daily headaches, mostly resolved muscle pain and he no longer has the flu feeling all
the time[]” and finding on musculoskeletal examination, normal range of motion and
either no tenderness or, at best, mild tenderness in the areas examined); PageID. 715
(on October 3, 2017, Dr. McCullars specifically noted that most of Smith’s myalgias had
resolved, his energy improved, he is free of fever and night sweats, and he has no
headaches; on physical examination of the musculoskeletal system, he again had
normal range of motion and either no tenderness or mild tenderness in all areas
14
examined); PageID. 734-35 (Plaintiff presented to the hospital on July 11, 2018, with
complaints of abdominal pain; on physical examination, he was noted to be in no acute
distress, there was no rash, his extremities exhibited normal range of motion, and there
was no lower extremity edema); PageID. 738-39 (Plaintiff presented to the hospital on
December 20, 2017, with reports of nausea and diarrhea; on physical examination he
was noted to be in no acute distress, with normal range of motion of the extremities and
no lower extremity edema)), including Dr. Forester’s own clinical notes. Indeed, on the
date Dr. Forester filled out the pre-printed questionnaire contained in the record (that is,
April 3, 2019), his examination of Smith revealed no significant objective findings (see
Doc. 9, PageID. 456 (Forester’s objective findings included that there was no rash, no
nodes, the chest was clear, the heart was within normal limits, and the abdomen was
soft)). Moreover, just six months earlier, on October 31, 2018, Forester noted Smith was
feeling better and that he moved in a rushed way and reported that he had jogged twice.
(See id., PageID. 882). Based upon the foregoing, therefore, substantial evidence
supports the ALJ’s decision to afford “little” weight to Dr. Forester’s checkbox opinion.
Finally, the Court considers the mostly marked and extreme limitations reflected
on the mental RFC questionnaire completed by Scott Durrance, a nurse practitioner, on
January 24, 2018 (see Doc. 9, PageID. 587-88), as well as Durrance’s April 11, 2019
opinion that because of his anxiety and depression, Smith “remains extremely and
markedly impaired in his ability to work eight hours a day, forty hours a week at any
exertional level without having to withdraw from a work setting due to symptoms of his
medical condition regardless of any drugs or alcohol use.” (See id., PageID. 888). The
ALJ afforded “no weight” to these opinions principally because Durrance, as a nurse
15
practitioner, is not an acceptable medical source. (See id., PageID. 92). However, since
the ALJ made reference to Durrance immediately following his analysis of the opinions
offered Louann Smith, the claimant’s mother, it is clear to the Court that the ALJ also
implicitly rejected Durrance's opinions on the same bases identified for rejecting Ms.
Smith’s opinions, namely that those opinions are “not consistent with the claimant’s
functioning or the other opinions found in the medical evidence of record[]” (id.). See
McBride, supra, at *5.
As aforesaid, the ALJ principally determined that Durrance’s opinions were due
no weight because he was not an acceptable medical source. (Doc. 9, PageID. 92). The
undersigned finds that this represents a sufficient reason to give Durrance’s opinions no
weight in this case since Durrance alone was responsible for the opinions (and the
impairments on which those opinions are based), there being no indication that
Durrance was treating Smith under the supervision of an acceptable medical source
(see, e.g., Doc. 9, PageID. 166-75, 586-639, & 677-98 (clinical notes all signed solely
by Durrance)), as was the case with Sternung (compare, e.g., id., PageID. 641 (April 27,
2017 progress note electronically authenticated and signed by Ludergnani) with
PageID. 558 (both Ludergnani and Sternung signed the mental RFC form on April 27,
2017)). In other words, because it is clear that “information from ‘other sources’ cannot
establish the existence of a medically determinable impairment[,]” Anteau v.
Commissioner of Social Security, 708 Fed.Appx. 611, 613 (11th Cir. Sept. 14, 2017),
and the record makes apparent that Durrance rendered his opinions based on the very
diagnoses he made (see Doc. 9, PageID. 166-75, 586-639, & 677-98), this Court has no
hesitancy in finding that the ALJ properly afforded no weight to Durrance’s opinions.
16
However, even if it was improper to reject Durrance’s opinions out-of-hand because he
was a non-acceptable medical source, the undersigned finds implicit in the ALJ’s
decision that he was also giving those opinions no weight for the same reasons he gave
Louann Smith’s opinion “little” weight and that is because the opinions of Durrance were
“not consistent with the claimant’s functioning or other opinions found in the medical
evidence of record.” (Id., PageID. 92). In particular, Durrance’s opinions are contrary to
those of the medical expert who testified during the administrative hearing on May 15,
2019, Dr. Nicole Martinez. (See id., PageID. 129-39). Dr. Martinez reviewed all
evidence of record (see id., PageID. 130) and testified that the clinical notes in the
record did not support Durrance’s (or Dr. Ludergnani’s/Sternung’s) opinions regarding
marked and extreme limitations (see id., PageID. 135-36 & 139) but, instead, support
only the following limitations: a mild degree of limitation in the area of understanding,
remembering, and applying information; a moderate degree of limitation in interacting
with others; a moderate degree of limitation in concentration, persistence and pace; and
a mild degree of limitation in managing oneself (see id., PageID. 134). Moreover,
Durrance’s opinions regarding marked and extreme limitations are certainly not
consistent at all with Plaintiff’s activities of daily living, including the ability to
successfully navigate online classes. (See id., PageID. 107 & 119). Accordingly, the
undersigned finds good cause in the record for the ALJ’s conclusion that Durrance’s
opinions were due to be accorded no weight.
In light of the foregoing and because substantial evidence of record supports the
Commissioner’s determination that Smith can perform the physical and mental
17
requirements of a range of sedentary work as identified by the ALJ,8 and Plaintiff makes
no argument that this residual functional capacity would preclude his performance of the
sedentary jobs identified by the VE during the administrative hearing (compare id.,
PageID. 85 with id., PageID. 107, 119, 129-39, 151, 160-63, 389-96, 456, 535-53, 56170, 576-80, 590-665, 674, 677-98, 715-879 & 882), the Commissioner’s fifth-step
determination is due to be affirmed. See, e.g., Owens v. Commissioner of Social
Security, 508 Fed.Appx. 881, 883 (11th Cir. Jan. 28, 2013) (“The final step asks
whether there are significant numbers of jobs in the national economy that the claimant
can perform, given h[er] RFC, age, education, and work experience. The Commissioner
bears the burden at step five to show the existence of such jobs . . . [and one] avenue[]
by which the ALJ may determine [that] a claimant has the ability to adjust to other work
in the national economy . . . [is] by the use of a VE[.]”(internal citations omitted)); Land
v. Commissioner of Social Security, 494 Fed.Appx. 47, 50 (11th Cir. Oct. 26, 2012) (“At
step five . . . ‘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.’ The ALJ may rely solely on the testimony of a VE to meet this burden.”
(internal citations omitted)).
8
That Smith has the ability to perform the physical requirements of a range of
sedentary work is supported by the benign objective findings of record (see, e.g., Doc . 9,
PageID. 456, 561, 715, 738-39 & 882), along with the evidence of record regarding the
claimant’s activities of daily living (see id., PageID. 107, 119, 151, 389-96, 679, 684 & 697). And
that Plaintiff has the ability to perform the mental requirements of a range of sedentary work is
supported by the administrative hearing testimony of Dr. Martinez (see id., PageID. 129-39), the
benign objective clinical findings of record (see, e.g., id., PageID. 535-49 & 640-45), and
plaintiff’s demonstrated ability to successfully navigate online courses (see id., PageID. 107 &
119)..
18
CONCLUSION
It is ORDERED that the decision of the Commissioner of Social Security denying
Plaintiff benefits be affirmed.
DONE and ORDERED this the 1st day of April, 2021.
s/P. Bradley Murray
UNITED STATES MAGISTRATE JUDGE
19
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