Case: 15-11379   Date Filed: 10/07/2015   Page: 1 of 8


                                                    [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 15-11379
                       Non-Argument Calendar
                     ________________________

               D.C. Docket No. 3:13-cv-01368-TJC-JRK



TODD A. STULTZ,

                                                          Plaintiff-Appellant,

                                versus

COMMISSIONER OF SOCIAL SECURITY,

                                                         Defendant-Appellee.

                     ________________________

              Appeal from the United States District Court
                  for the Middle District of Florida
                    ________________________

                           (October 7, 2015)
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Before MARTIN, ANDERSON, and EDMONDSON, Circuit Judges.



PER CURIAM:



       Todd Stultz appeals the district court’s order affirming the Social Security

Commissioner’s denial of his application for supplemental security income (“SSI”)

benefits, pursuant to 42 U.S.C. § 1383(c)(3). No reversible error has been shown;

we affirm. 1

       Our review of the Commissioner’s decision is limited to whether substantial

evidence supports the decision and whether the correct legal standards were

applied. Wilson v. Barnhart, 

, 1221 (11th Cir. 2002). “Substantial

evidence is more than a scintilla and is such relevant evidence as a reasonable

person would accept as adequate to support a conclusion.” Crawford v. Comm’r of

Soc. Sec., 

, 1158 (11th Cir. 2004). “If the Commissioner’s decision

is supported by substantial evidence, this Court must affirm, even if the proof

preponderates against it.” Dyer v. Barnhart, 

, 1210 (11th Cir. 2005).


       1
          We note that Stultz failed to object to the magistrate judge’s report and recommendation
and that, under this Court’s current rules, such a failure can constitute a waiver of the right to
appeal the district court’s order based on unobjected-to factual or legal conclusions. See 11th
Cir. R. 3-1. In this case, however, the magistrate judge arguably provided no clear notice to
Stultz that a failure to file objections would waive entirely his right to appeal the district court’s
decision. The magistrate judge said only that “[f]ailure to file timely objections waives a party’s
right to de novo review.” Because of this questionable warning, we do not apply Rule 3-1’s
waiver rule in this case.
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Under this limited standard of review, we may not make fact-findings, re-weigh

the evidence, or substitute our judgment for that of the Administrative Law Judge

(“ALJ”). Moore v. Barnhart, 

, 1211 (11th Cir. 2005).

       A person who applies for SSI benefits must first prove that he is disabled. 2

See 42 U.S.C. § 1382(a)(1)-(2). The claimant bears the burden of proving his

disability and must produce evidence supporting his claim. See Ellison v.

Barnhart, 

, 1276 (11th Cir. 2003).

       The ALJ applied correctly the five-step evaluation process set forth in 20

C.F.R. § 416.920(a) and determined that Stultz was not disabled for purposes of

demonstrating SSI eligibility. The ALJ first determined that Stultz had engaged in

no substantial gainful activity since his application date and that Stultz had a severe

impairment. 3 The ALJ then concluded that, even though Stultz could no longer

perform his past relevant work as a painter and welder, Stultz had the residual

functional capacity (“RFC”) to perform a full range of light work. Given Stultz’s

age (43), high school education, and ability to perform a full range of light work,



       2
          A person is considered “disabled” if “he is unable to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to last for a continuous period
of not less than twelve months.” 42 U.S.C. § 1382c(a)(3)(A).

       3
          Stultz was involved in a motorcycle accident in March 2010 and suffered multiple
injuries, including a depressed skull fracture. The ALJ concluded that Stultz had severe
impairments of status-post traumatic brain injury and craniotomy.
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the ALJ concluded that the medical-vocational guidelines mandated a finding of

“not disabled.”



                                          I.



      On appeal, Stultz argues that the ALJ erred by failing to give adequate

weight to the opinions of two of his treating physicians, Drs. Vinas and Johnson,

and to Nurse Branoff.

      Absent “good cause” to the contrary, the ALJ must give substantial weight

to the opinion, diagnosis, and medical evidence of a treating physician. 

. Good cause may exist under these circumstances: (1) the

treating physician’s opinion was not bolstered by evidence; (2) evidence supported

a contrary finding; or (3) the treating physician’s opinion was conclusory or

inconsistent with the doctor’s own medical records. Phillips v. Barnhart, 

, 1240-41 (11th Cir. 2004). The ALJ must articulate clearly reasons for

giving less weight to the treating physician’s opinion. 

      In his June 2010 progress notes, Dr. Vinas (Stultz’s neurosurgeon) opined

that Stultz had symptoms of severe post-concussion syndrome and was “currently

unable to work.” The ALJ concluded that Dr. Vinas’s opinion was unsupported by

Dr. Vinas’s own medical examination and that Dr. Vinas’s progress notes from


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October 2010 contained no similar diagnosis or restriction on Stultz’s ability to

work. The ALJ’s reasoning is supported by substantial evidence in the record. Dr.

Vinas’s progress notes show that -- although Stultz had a chronic, non-healing

head wound -- Stultz had no functional limitations, had normal physical and

neurological findings, and reported no headaches or difficulty walking.

       In November 2011, Dr. Johnson (a primary-care physician) wrote a letter

opining that Stultz was unable to return to work. The ALJ afforded Dr. Johnson’s

letter no weight for two reasons: (1) Dr. Johnson’s progress note included only

benign findings; and (2) Dr. Johnson’s letter was based only on Stultz’s subjective

complaints, which were inconsistent with the record. 4

       The ALJ’s reasons are supported by substantial evidence. Dr. Johnson’s

only progress note -- dated May 2011 -- reports that Stultz experienced chronic

pain, but includes no other significant findings or physical limitations. In

concluding that Stultz was unable to work, Dr. Johnson relied not on his own

medical examination but, instead, appears to have relied on Stultz’s own subjective

complaints of pain and dizziness and on Nurse Branoff’s “Physical Medical Source

Statement.” While Stultz complained of pain and dizziness during his visits to Dr.

Johnson and to Nurse Branoff, no similar complaints were reflected in the


       4
        The ALJ also stated -- incorrectly -- that Dr. Johnson never examined Stultz personally.
Because the ALJ’s other two reasons are sufficient to establish “good cause,” this error does not
change our decision.
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treatment notes from the other doctors who treated Stultz regularly after his

accident.

      The ALJ articulated sufficiently his reasons for not giving substantial weight

to the opinions of Drs. Vinas and Johnson, and these reasons were supported by

substantial evidence in the record. Good cause existed to discount Dr. Vinas’s and

Dr. Johnson’s opinions. Moreover, determinations about whether a claimant is

disabled or unable to work are left to the Commissioner as administrative findings

and are not considered “medical opinions.” See 20 C.F.R. § 416.927(d).

      We also see no error in the ALJ’s decision to give limited weight to the

opinion of Nurse Branoff. Nurse Branoff’s assessment of Stultz’s physical

restrictions was unsupported by her own examinations of Stultz or by other

evidence in the record. Moreover, a nurse practitioner is not considered an

“acceptable medical source” under the Social Security regulations whose opinion

is entitled to substantial weight. See 20 C.F.R. § 416.913(a), (d), 416.927(a)(2).



                                         II.



      Stultz argues that the ALJ erred in determining that Stultz’s testimony was

not fully credible. Stultz also contends that the ALJ relied too heavily on the




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opinions of two non-examining doctors: Dr. Cloninger, a board-certified

neurosurgeon, and Dr. Stanley, the state agency reviewer.

      “[C]redibility determinations are the province of the ALJ.” 

. An ALJ must make explicit credibility findings when subjective pain is

an issue. Foote v. Chater, 

, 1562 (11th Cir. 1995). We will not

disturb “[a] clearly articulated credibility finding with substantial supporting

evidence in the record.” 

explained adequately his determination that Stultz’s testimony and

subjective complaints of pain were not fully credible, and that determination is

supported by substantial evidence. The ALJ explained that Stultz’s work history --

which contained almost no earnings since 1991 -- was a factor in evaluating

Stultz’s credibility about his inability to maintain gainful employment. Moreover,

Stultz’s medical records support the ALJ’s observation that Stultz had been

untruthful about his history of alcohol abuse. Substantial evidence also supports

the ALJ’s determination that Stultz continued to smoke despite repeated warnings

that doing so would impede healing and exacerbate Stultz’s symptoms.

      In determining how much weight to give a non-treating doctor’s medical

opinion, the ALJ must consider, among other things, these three factors: (1) the

extent to which the doctor’s opinion is supported by medical evidence; (2) how




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consistent the “opinion is with the record as a whole”; and (3) the doctor’s medical

specialty. 20 C.F.R. § 416.927(c).

      The ALJ’s decision to afford substantial weight to Dr. Cloninger’s opinion

testimony and to Dr. Stanley’s RFC determination was supported by substantial

evidence. Both doctors’ assessments of Stultz’s RFC were based on a review of

Stultz’s medical records, which showed normal neurological and physical findings

and no severe cognitive impairment. In making their determinations, both doctors

considered expressly the complications associated with Stultz’s non-healing head

wound. Although neither Dr. Cloninger nor Dr. Stanley reviewed Stultz’s most

recent medical records, nothing in those records was inconsistent with doctors’

determinations about Stultz’s RFC.

      Substantial evidence supports the Commissioner’s denial of SSI benefits; we

affirm.

      AFFIRMED.




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