Lupardus v. Commissioner of Social Security

Filing 29

ORDER affirming the Commissioner's decision denying plaintiff's claim for benefits and directing the clerk to enter judgment in favor of the Commissioner and close the file. Signed by Magistrate Judge Patricia D. Barksdale on 8/31/2016. (JDE)

United States District Court
Middle District of Florida
Jacksonville Division
MARY MARGARET LUPARDUS,
Plaintiff,
v.

NO. 3:15-CV-243-J-PDB

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

Order Affirming Commissioner’s Decision
This is a case under 42 U.S.C. § 405(g) to review a final decision of the
Commissioner of the Social Security Administration (“SSA”) denying Mary Margaret
Lupardus’s claim for disability-insurance benefits.1 She seeks reversal, Doc. 27; the
Commissioner, affirmance, Doc. 28. This order incorporates the summaries of the
evidence provided in the parties’ briefs and the Administrative Law Judge’s (ALJ’s)
decision. Doc. 27 at 3−13; Doc. 28 at 7−8; Tr. 39−41, 43−45.

1The

SSA uses an administrative review process a claimant ordinarily must
follow to receive benefits or judicial review of her denial. Bowen v. New York, 476 U.S.
467, 471−72 (1986). A state agency acting under the Commissioner’s authority makes
an initial determination. 20 C.F.R. § 404.900−404.906. If the claimant is dissatisfied
with the initial determination, she may ask for reconsideration. 20 C.F.R.
§ 404.907−404.918. If she is dissatisfied with the reconsideration determination, she
may ask for a hearing before an Administrative Law Judge (“ALJ”). 20 C.F.R. §
404.929−404.943. If she is dissatisfied with the ALJ’s decision, she may ask for review
by the Appeals Council. 20 C.F.R. § 404.967−404.982. If the Appeals Council denies
review, she may file an action in federal district court. 20 C.F.R. § 404.981. Section
405(g) provides the basis for the court’s jurisdiction.

I.

Issues
Lupardus raises two issues: (1) whether the ALJ erred in weighing the opinions

of her treating physician, Mark Hofmann, M.D.; and (2) whether the Appeals Council
erred in failing to review the case based on new evidence. Doc. 27 at 2.
II.

Background
Lupardus is 51 and last worked in January 2011. Tr. 51, 216, 231. She has a

high school education, has taken some post-high-school courses, and has experience
as a nursing assistant, telephone sales representative, office clerk, mail handler,
office manager, medical assistant, and usher. Tr. 41–42, 57−59, 219, 232. She applied
for disability-insurance benefits in July 2011. Tr. 193–96. She alleged she had become
disabled in January 2011 from thumb, hand, and back injuries originating from
lifting an overweight patient at work. Tr. 61–62, 231, 618. The ALJ issued a partially
favorable decision in August 2013. Tr. 35–46; 52–88. She submitted additional
evidence from November 2013. Tr. 25. The Appeals Council denied review.2 Tr. 22−27.
This case followed. Doc. 1.
III.

ALJ’s Decision and Appeals Council’s Action
The ALJ divided her opinion into two periods: January 24, 2011, to April 1,

2012, and April 2, 2012, to August 27, 2013. Tr. 31−46. For both periods, at step two
of the five-step sequential evaluation process,3 the ALJ found Lupardus has severe

2If

the Appeals Council denies review, the ALJ’s decision is the SSA’s final
decision. 20 C.F.R. § 404.981.
3The

SSA uses a five-step sequential process to decide if a person is disabled,
asking whether (1) she is engaged in substantial gainful activity, (2) she has a severe
impairment or combination of impairments, (3) the impairment meets or equals the
severity of anything in the Listing of Impairments, 20 C.F.R. Part 404, Subpart P,
App’x 1, (4) she can perform any of her past relevant work given her residual
functional capacity (“RFC”), and (5) there are a significant number of jobs in the
2

impairments of spine and left-thumb disorders. Tr. 38, 42. At step three, the ALJ
found those impairments, individually or in combination, do not meet or medically
equal the severity of any impairment in the Listing of Impairments, 20 C.F.R. Part
404, Subpart P, App’x 1. Tr. 38–39, 42−43.
For the period from January 24, 2011, to April 1, 2012, the ALJ found
Lupardus had the residual functional capacity (“RFC”) to perform less than the full
range of sedentary work as defined in 20 C.F.R. § 404.1567(a). At step four, the ALJ
found she could perform no past relevant work. Tr. 41. At step five, the ALJ found
there were no jobs in significant numbers in the national economy she could perform.
Tr. 42. Thus, for that period, the ALJ found her disabled. Tr. 42.
For the period from April 2, 2012, to August 27, 2013, the ALJ found Lupardus
had improved as of April 2, 2012, in ways that had improved her RFC, explaining:
[B]eginning April 2, 2012, the claimant has had the [RFC] to perform
less than the full range of sedentary work defined in 20 C.F.R. [§]
404.1567(a) and cannot with her left upper extremity lift or carry more
than five pounds. The claimant requires a hand-held assistive device for
standing or walking. The claimant can perform no more than frequent
left upper extremity pushing/pulling, handling (gross), or fingering
(fine). She can no more than occasionally climb ramps/stairs, balance,
stoop, kneel, crouch, or crawl. She cannot climb ladders, ropes or
scaffolding or tolerate concentrated exposure to extreme heat/cold or
humidity. The claimant needs to avoid even moderate exposure to
vibration and to workplace hazards (machinery, heights, etc.).
Tr. 43. At step four, the ALJ found she can perform her past relevant work as an
office manager and telephone sales representative. Tr. 45. Thus, for that period, the
ALJ found her not disabled. Doc. 45−46.
Lupardus submitted additional evidence to the Appeals Council. Tr. 25. The
Appeals Council added it to the record. Tr. 26. In denying her review request, the
national economy she can perform given her RFC, age, education, and work
experience. 20 C.F.R. § 404.1520(a)(4).
3

Appeals Council explained it would review the ALJ’s decision if it received “new and
material evidence and the decision is contrary to the weight of all the evidence now
in the record.” Tr. 22. The Appeals Council found no reason to review the ALJ’s
decision under that or any other rule. Tr. 22−23.
IV.

Standard of Review
A court’s review of an ALJ’s decision is limited to determining whether the ALJ

applied the correct legal standards and whether substantial evidence supports her
findings. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). Substantial
evidence is “such relevant evidence as a reasonable person would accept as adequate
to support a conclusion.” Id. The court may not decide facts anew, reweigh evidence,
make credibility determinations, or substitute its judgment for the Commissioner’s
judgment. Id. Any error is harmless if it did not affect the ultimate determination.
Hunter v. Comm’r of Soc. Sec., 609 F. App’x 555, 558 (11th Cir. 2015).
Whether evidence submitted to the Appeals Council is new, material, and
chronologically relevant is a question of law subject to de novo review. Washington v.
Soc. Sec. Admin., Comm’r, 806 F.3d 1317, 1321 (11th Cir. 2015). “[W]hen a claimant
properly presents new evidence to the Appeals Council, a reviewing court must
consider whether that new evidence renders the denial of benefits erroneous.” Ingram
v. Comm'r of Soc. Sec. Admin., 496 F.3d 1253, 1262 (11th Cir. 2007).
V.

Analysis
A claimant must prove she is disabled. 20 C.F.R. § 404.1512(a); Jones v. Apfel,

190 F.3d 1224, 1228 (11th Cir. 1999). “Disability” is the “inability to engage in any
substantial gainful activity by reason of any medically determinable physical or
mental impairment which … can be expected to last for a continuous period of not
less than 12 months.” 42 U.S.C. § 423(d)(1)(A); accord 20 C.F.R. § 404.1505.

4

A.

Dr. Hofmann’s Opinions
Lupardus argues reversal is warranted because, in finding medical

improvement, the ALJ gave insufficient weight to Dr. Hofmann’s April 2012 opinion
she would need a sit/stand option and July 2013 opinions she could stand or walk for
less than two hours in an eight-hour workday, could not tolerate prolonged sitting,
and “consistently had severe functional limitations following her back injury.” Doc.
27 at 17−27. The Commissioner disagrees. Doc. 28 at 5–9.
Medical improvement is any decrease in the medical severity of an impairment
present during the most recent disability finding. 20 C.F.R. § 404.1594(b)(1). “[A]
comparison of the original medical evidence and the new medical evidence is
necessary to make a finding of improvement.” McAulay v. Heckler, 749 F.2d 1500,
1500 (11th Cir. 1985). If an ALJ finds medical improvement, she must determine if
the improvement is related to ability to work. 20 C.F.R. § 404.1594(f)(4). Medical
improvement is related to ability to work if there is a decrease in the medical severity
of an impairment present during the most recent disability finding and an increase
in the ability to do basic work activities. 20 C.F.R. § 404.1594(b)(3).
A medical opinion is a statement from an acceptable medical source (physician,
licensed or certified psychologist, licensed optometrist, licensed podiatrist, and
qualified speech-language pathologist, 20 C.F.R. § 404.1513(a)) that reflects the
nature and severity of an impairment. 20 C.F.R. § 404.1527(a)(2). An ALJ “must state
with particularity the weight given to different medical opinions and the reasons
therefor.” Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1179 (11th Cir. 2011). An
opinion from a non-acceptable medical source may be used to show the severity of an
impairment and how it affects a claimant’s ability to work. 20 C.F.R. § 404.1513(d).
The SSA generally will give more weight to the medical opinions of treating
sources who have seen claimants a number of times and long enough to have obtained
a longitudinal picture of impairments because they “are likely to be the medical
5

professionals most able to provide a detailed, longitudinal picture of [a claimant’s]
medical impairment and may bring a unique perspective to the medical evidence that
cannot be obtained from the objective medical findings alone or from reports of
individual examinations.” 20 C.F.R. § 404.1527(c)(2). An ALJ need not give more
weight to a treating source’s opinion if there is good cause to do otherwise and
substantial evidence supports the good cause. Phillips v. Barnhart, 357 F.3d 1232,
1240 (11th Cir. 2004). Good cause exists if the evidence did not bolster the opinion,
the evidence supported a contrary finding, or the opinion was conclusory or
inconsistent with the treating source’s own medical records. Id. at 1240−41.
Regardless of its source, the SSA “will evaluate every medical opinion” it receives. 20
C.F.R. § 404.1527(c).
The Commissioner is tasked with determining the RFC and deciding whether
a claimant is disabled; those are not medical opinions. 20 C.F.R. § 404.1527(d).
“Giving controlling weight to such opinions would, in effect, confer upon the treating
source the authority to make the determination or decision about whether an
individual is under a disability, and thus would be an abdication of the
Commissioner’s statutory responsibility to determine whether an individual is
disabled.” Social Security Ruling 96-5p.
Lupardus argues the ALJ erred in giving little weight to Dr. Hofmann’s April
2012 opinion she would need a sit/stand option and related July 2013 opinion she
could not tolerate prolonged sitting because the record contains evidence to support
those opinions. Doc. 27 at 17, 18. Any error in giving little weight to those opinions is
harmless because the vocational expert testified the telephone customer service and
office manager positons would allow a sit/stand option every 30 minutes. Tr. 82, 84–
85.
Lupardus argues the ALJ erred in giving no significant weight to Dr.
Hofmann’s July 2013 opinions, contending the ALJ’s reasoning (“there is no evidence
of exacerbation of her condition since April of 2012,” Tr. 45) is dubious because the
6

question is not whether her condition worsened but whether it improved. Doc. 27 at
18–21. The context of the ALJ’s statement, Tr. 45, shows she did not apply the wrong
standard. The opinion read as a whole shows the ALJ did not equate medical
improvement with medical constancy. See generally Tr. 38−45.
Lupardus argues a “close examination of Dr. Hofmann’s treatment notes shows
no evidence of any medical improvement.”4 Doc. 27 at 18. She points to portions of his
notes showing little or no improvement in some areas. Doc. 27 at 19−20. That some
evidence could have supported a finding of no medical improvement does not
constitute a basis for reversal and remand given that the Court may not reweigh
evidence or substitute its judgment for the Commissioner’s. See Moore, 405 F.3d at
1211. For review purposes, it is enough that substantial evidence supports the ALJ’s
contrary finding of medical improvement.
In finding medical improvement, the ALJ moved from a limiting RFC to an
only slightly less limiting RFC, indicating the medical improvement he found slight,
albeit enough to change the ultimate finding. Lupardus provided inconsistent
information about her abilities, saying one thing before the ALJ and another thing
before Dr. Hofmann.5 The medical improvement the ALJ found came more than
fourteen months after the workplace injury that caused the impairments and after

4Lupardus

mentions Dr. Hofmann’s July 2013 opinion she could stand or walk
for less than two hours in an eight-hour workday. Doc. 27 at 19. That is not
substantially inconsistent with the RFC because it limited her to sedentary work,
which involves sitting, standing, and walking, with standing and walking required
only occasionally. See 20 C.F.R. § 404.1567(a) (defining sedentary work). Although
occasionally means up to one third of the time, see Dictionary of Occupational Titles,
App’x C (4th ed. 1991), and one third of eight is more than two, the difference is slight.
5Compare

Tr. 59, 61, 73 (July 2013 testimony before the ALJ she needs a cane,
a walker and a wheelchair (“all three”) to get around, she has not been able to walk
without a walker since 2011, and she can sit only 32 minutes at a time) with Tr. 579
(January 2013 report to Dr. Hofmann she avoids using a walker, uses a back brace
only with increased activities, and can sit only 40 to 50 minutes at a time).
7

physical therapy and other treatment.6 Over time, Dr. Hofmann changed his opinion
she could not return to work to she could return to work with restrictions. Tr. 488,
582, 677. In January 2012, she reported to Dr. Hofmann mild improvement with
physical therapy, a decrease in pain upon coughing or sneezing, an attempt to wean
herself off a back brace, and use of a walker only after physical therapy and a cane
“at times” at home. Tr. 588. In February 2012, she reported to Dr. Hofmann she was
making progress in physical therapy, she could tolerate standing 40 minutes at a
time, and her gait was improving. Tr. 587. In March 2012, she reported to Dr.
Hofmann medication seemed to help with her sleep and pain, and he stated results
from nerve conduction studies were within normal limits, “F Wave” latencies were
within normal limits, muscles showed no evidence of electrical instability, the
electromyogram study of her lower left limb was normal, and there was no
electromyogram evidence of radiculopathy. Tr. 585–86. The same month, a state
agency physician opined she could perform a reduced range of sedentary work. Tr.
99−110, and Dr. Hofmann opined she was “inconsistent with her presentation and
portrayed greater disability than one would expect with her diagnosis.” Tr. 502. In
April 2012, Dr. Hofmann opined she has work limitations but inconsistencies in her
physical therapy showed “it is very possible [she] is capable of greater activity,” she
had just a 5% whole person impairment rating, and a functional capacity evaluation
would be a waste of time because she would fail the validity criteria. Tr. 494. The
same month, Dr. Hofmann observed a negative bilateral straight leg raise and
explained “considering her diagnostic studies and medical condition, there is no
reason why she should not be more functional than she is.” Tr. 584. He added there
were no other treatment options and maintained his opinion she could perform at a

6Tr.

618 (February 2011 report to physical therapy provider describing
January 2011 workplace injury); Tr. 43 (ALJ’s finding that medical improvement
occurred in April 2012); Tr. 285–89, 291–92, 295, 300–09, 311–97, 400–10, 413–22,
441–50, 453–60, 490–565, 612–31, 634–41, 644–50, 653–57, 659–64, 675–76, 681–82,
685, 688–89, 692–708, 714 (treatment notes in between).
8

reduced range of sedentary work.7 Tr. 584. She continued conservative treatment
with signs of improvement, including reporting to Dr. Hofmann in June 2013 she was
in school to become a nursing instructor.8 Read together, there is substantial evidence
to support the ALJ’s finding of medical improvement.
Lupardus observes no physician ever found her capable of the RFC the ALJ
found. Doc. 27 at 20. Regardless of whether that observation is correct, it would be no
basis for reversal and remand because the ALJ was the one tasked with determining
the RFC based on all evidence. See 20 C.F.R. § 404.1527(d); Social Security Ruling
96-5p.
The ALJ did not err in weighing Dr. Hofmann’s opinions. Reversal and remand
is unwarranted.
B.

The Appeals Council’s Action
Lupardus argues the Appeals Council erred in denying her request for review,

contending substantial evidence does not support its finding the newly submitted
evidence provides no basis for changing the ALJ’s decision. Doc. 27 at 21. The
Commissioner disagrees. Doc. 28 at 12.
Generally, a claimant may present new evidence at each stage of the
administrative process. Ingram, 496 F.3d at 1261; 20 C.F.R. § 404.900(b). If she
7Lupardus

acknowledges Dr. Hofmann’s March and April 2012 opinions but
contends it appears he abandoned them when he stated in July 2013 that she
“consistently had severe functional limitations following her back injury.” Tr. 597.
Under the limited standard of review, the Court may not apply that fresh take on
what Dr. Hofmann had implied by his statement; again, for review purposes, it is
enough that substantial evidence supports the ALJ’s finding of medical improvement.
8See

also Tr. 583 (July 2012 appointment with Dr. Hofmann at which he
encouraged her to increase her activity level and noted study revealed no neurological
problems); Tr. 579 (January 2013 report to Dr. Hofmann she avoids using a walker,
uses a back brace only with increased activities, and can sit 40 to 50 minutes at a
time).
9

presents evidence after the ALJ’s decision, the Appeals Council must consider it if it
is new, material, and chronologically relevant. 20 C.F.R. § 404.970(b). Evidence is
new if it is non-cumulative. Robinson v. Astrue, 365 F. App’x 993, 996 (11th Cir. 2010).
Evidence is material if there is a reasonable probability it would change the
administrative result. Washington, 806 F.3d at 1321. Evidence is chronologically
relevant if it relates to the period on or before the ALJ’s decision, 20 C.F.R.
§ 404.970(b), regardless of whether it is provided afterward, Washington, 806 F.3d at
1322–23. The Appeals Council will “review the case if it finds that the [ALJ’s] action,
finding, or conclusion is contrary to the weight of the evidence currently of record.”
20 C.F.R. § 404.970(b). The Appeals Council is not required to discuss evidence
submitted after the ALJ’s decision. Mitchell v. Comm’r of Soc. Sec., 771 F.3d 780, 784
(11th Cir. 2014).
The evidence Lupardus submitted to the Appeals Council was a “Vocational
Evaluation Report” dated November 21, 2013, by Richard Grissinger, a “Vocational
Evaluator” with Vocational Services of Northeast Florida, Inc. Tr. 721−27. He had
evaluated her to “identify feasible vocational goals based on interests, aptitudes,
academic skills, and intellectual functioning.” Tr. 721. He divided the report into
sections,

“Background

Information”;

“Reason

for

Referral”;

“Behavioral

Observations”; “Disabling Condition”; “Work History”; “Interests”; “Self-Directed
Search”; “Test Results” from the “Career Ability Placement Survey,” the “Shipley
Institute for Living Scale,” and the “Wide Range Achievement Test, Revision Four”;
and “Vocational Summary/Implications.” Tr. 721−27. In the latter section, he opined
she cannot return to her former job and is not ready for part-time or full-time work
because she is not physically ready, observing “poor balance, poor ability to sit and
stand and no ability to care for others.” Tr. 727. He adds, “her ability to attend work
on a sustained basis is hardly possible at this time.” Tr. 727.
Even if Grissinger’s opinions are new and chronologically relevant (an
arguable point), their submission is not a basis for reversal and remand. As the
10

Commissioner observes, Grissinger is a vocational evaluator with unknown training
and thus not an acceptable medical source. See generally Tr. 721−27. Although his
opinions could be used to show the severity of Lupardus’s impairments and how they
affect her ability to work, see 20 C.F.R. § 404.1513(d), they were based solely on either
his lay visual observations or her subjective complaints. See generally Tr. 721−27.
Although he observed physical signs of discomfort or impairment, he could not assess
her credibility through a medical examination, an important matter given Dr.
Hofmann’s concern about inconsistencies between her behavior and the medical
evidence. Tr. 494, 584. Furthermore, his ultimate opinion she cannot work is a
determination for the ALJ. See generally Tr. 721–22. His opinions, with the rest of
the evidence, do not, as Lupardus contends, lead to an “inescapable conclusion” she
is disabled. See Doc. 27 at 24 (quoted).
The Appeals Council did not err in finding Grissinger’s opinions provided no
basis for changing the ALJ’s decision. Tr. 22–23. Reversal and remand is
unwarranted.
VI.

Conclusion
The Court affirms the Commissioner’s decision denying Lupardus’s claim for

benefits and directs the clerk to enter judgment in favor of the Commissioner and
close the file.
Ordered in Jacksonville, Florida, on August 31, 2016.

c:

Counsel of Record

11