WILLIAM E. CASSADY, Magistrate Judge.
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 her claims for supplemental security income ("SSI") and disability insurance benefits ("DIB"). 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. (Doc. 17 ("In accordance with the 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 ("R.") (doc. 12), the Plaintiff's brief (doc. 13), the Commissioner's brief (doc. 14), and the arguments presented at the October 9, 2014 hearing, it is determined that the Commissioner's decision denying benefits should be affirmed.
On or around December 18, 2007, the Plaintiff filed an application for SSI and DIB (R. 271-87, R. 320), alleging disability relating to the following ailments: irritable bowel syndrome, fibromyalgia, depression, polcystic ovary syndrome, fatigue, and diverticulitis. (R. 324.) She stated that she became disabled on November 14, 2007. (R. 283.) Her application was initially denied on May 12, 2008. (R. 155-64.) A hearing was then conducted before an Administrative Law Judge (ALJ) on September 15, 2009. (R. 41-77). On September 25, 2009, the ALJ issued a decision finding that the claimant was not disabled. (R. 139-50.) On February 14, 2011, the Appeals Council remanded this matter back to the ALJ for further proceedings. (R. 152-54.) Additional hearings were held before the ALJ on June 7, 2011, (R. 78-116), and January 11, 2012, (R. 117-33). On March 22, 2012, the ALJ issued a second decision finding that the claimant was not disabled. (R. 19-34.) The Plaintiff sought review from the Appeals Council, (R. 14), and the Appeals Council issued a decision declining to review the ALJ's decision, (R. 1-3). Therefore, the ALJ's March 22, 2012 determination was the Commissioner's final decision for purposes of judicial review. See 20 C.F.R. § 404.981. The Plaintiff filed a Complaint in this Court on November 18, 2013. (Doc. 1.)
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 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 an 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." Schnorr 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 F. App'x 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. Comm'r of Soc. Sec., 363 F.3d 1155, 1158-59 (11th Cir. 2004)).
On appeal to this Court, the Plaintiff asserts that the ALJ reversibly erred by failing to give controlling weight to the opinion of Dr. Ellis Allen, her primary care physician, and the opinion of Ms. Selena Steade and Ms. Yvonne Ambrose, the Plaintiff's nurse practitioner and mental health counselor involved in her mental health treatment.
On March 22, 2012, the ALJ issued a decision finding that the Plaintiff was not disabled. (R. 19-34.) In reaching her decision, the ALJ found that the Plaintiff was not engaged in substantial gainful activity following November 14, 2007, the alleged onset date. (R. 21.) The ALJ found that the Plaintiff "has the following severe impairments: fibromyalgia, neuropathy, history of abdominal surgeries for polycystic ovary syndrome and colostomy, irritable bowel syndrome, hypothyroidism, bipolar disorder, and anxiety." (R. 21-22 (emphasis omitted).) The ALJ concluded that the Plaintiff did not meet or medically equal one of the impairments listed in 20 CFR Part 404, Subpart P, Appendix 1. (R. 25.) The ALJ made the following findings with respect to the Plaintiff's residual functional capacity:
(R. 27 (emphasis omitted).) Based on the testimony of the vocational experts, the ALJ concluded that the Plaintiff was not capable of performing past relevant work, but that the Plaintiff can perform other jobs that exist in significant numbers. (R. 32.)
On March 11, 2011, Dr. Allen completed a Clinical Assessment of Fatigue form (R. 629) and a Clinical Assessment of Pain form (R. 630-31) for the Plaintiff. In the Clinical Assessment of Fatigue form, Dr. Allen opined that the Plaintiff's weakness, fatigue and pain limit the Plaintiff to working less than eight hours a day. (R. 629.) He concluded that "[f]atigue is present to such an extent as to be distracting to adequate performance of daily activities or work" and "physical activity such as walking or standing . . . [g]reatly increased fatigue to such a degree as to cause distraction from tasks or total abandonment of tasks." (Id.) In the Clinical Assessment of Pain form, Dr. Allen stated that "[p]ain will distract the patient from adequately performing daily activities or work." (R. 630.) However, he determined that "physical activity, such as walking, standing, bending, stooping, moving of the extremities, etc.," will lead to "[s]ome increase [in pain] but not to such an extent as to prevent adequate functioning in such tasks." (Id.) Dr. Allen also concluded that "[p]ain and/or drug side effects can be expected to be severe and to limit [her] effectiveness [at her previous work] due to distraction, inattention [and] drowsiness." (R. 631.) He stated that the Plaintiff's daily activities, such as lifting, standing, pulling and straining, would be limited. (Id.) Dr. Allen identified the condition causing the Plaintiff's pain as "chronic pain/neuropathy" and stated that his diagnosis is supported by "[her] hospitalization in 2008 for surgery with adverse outcomes." (R. 630.) He further stated that, due to her condition, the Plaintiff will need to be treated with oral pain medications and physical therapy. (R. 631.)
In addition, Dr. Allen sent a letter to the Plaintiff's attorneys providing the following statement:
(R. 752.)
As the plaintiff's treating physician, Dr. Allen's opinions "must be given substantial or considerable weight unless `good cause' is shown to the contrary." Gilabert v. Comm'r of Soc. Sec., 396 F. App'x 652, 655 (11th Cir. Sept. 21, 2010) (per curiam) (quoting Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997)). 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." Id. (quoting 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. Id. (quoting Moore [v. Barnhart], 405 F.3d [1208,] 1212 [(11th Cir. 2005)]).
Here, the ALJ gave little weight to Dr. Allen's opinions regarding the Plaintiff's physical abilities because the ALJ found that Dr. Allen's pain assessment is internally inconsistent and because Dr. Allen's opinions are inconsistent with his own treatment notes and the other evidence of the Plaintiff's actual activity level. (R. 31.) On appeal, the Plaintiff argues that Dr. Allen's opinions should have been given controlling weight. (Doc. 13 at 4.) However, the Plaintiff failed to advance any argument as to whether the ALJ had good cause to discount Dr. Allen's opinions for the aforementioned reasons. (See doc. 13.) Notably, the Plaintiff's brief includes no discussion of Dr. Allen's treatment notes or the other evidence of record regarding the Plaintiff's physical abilities. (See id.)
The undersigned finds that the ALJ had good cause to give little weight to Dr. Allen's opinions because Dr. Allen's conclusions regarding the Plaintiff's ability to work are inconsistent with his own treatment notes. As indicated by the following summary of Dr. Allen's records, his minimal findings and conservative treatment fail to support his opinions regarding the Plaintiff's ability to work.
On February 12, 2008, the Plaintiff visited Dr. Allen with complaints that she was experiencing neuropathic pain and fibromyalgia since recently undergoing surgery.
The undersigned agrees with the ALJ that Dr. Allen's treatment notes do not support the severe limitations described by Dr. Allen in the pain and fatigue assessments he completed.
In fact, the Plaintiff's own reports indicate that her activity level is not severely limited. The Plaintiff lives alone in a mobile home on her parents' property, she drives a car and takes care of her dogs. (R. 83, 98-99, 351.) She stated that she can manage activities of daily living, including cooking, cleaning, washing dishes and washing her clothes. (R. 708.) However, she needs help moving laundry bags. (R. 350.) She stated that she goes on short walks everyday and goes to yoga once or twice a week. (R. 728.) She also plays in a pool league and goes shopping once or twice a week. (R. 351, 571.) Given this evidence, the undersigned also agrees with the ALJ that Dr. Allen's opinions are inconsistent with the Plaintiff's activity level.
For the foregoing reasons, the undersigned finds that the ALJ did not err by giving little weight to Dr. Allen's opinions.
On June 6, 2011, Ms. Steade, one of the Plaintiff's treating nurse practitioners, and Ms. Ambrose, one of the Plaintiff's mental health counselors, completed an MRFC setting forth their opinions as to the extent that the Plaintiff's mental impairments would limit her in the workplace. (R. 704-05.) They estimated that the Plaintiff's activities of daily living were mildly restricted; that maintaining social functioning was markedly difficult; and that she frequently had "deficiencies in concentration persistence or pace resulting in failure to complete tasks in a timely and appropriate manner." (R. 704.) They also expected that she would have four or more "episodes of decomp[ensation]
The Plaintiff argues that the ALJ was required "to give controlling weight to the opinions of the Plaintiff's treating medical professionals" and, therefore, the ALJ erred by failing to give controlling weight to Ms. Steade and Ms. Ambrose's assessment. (Doc. 13 at 2.) However, the Plaintiff's understanding of the law is incorrect. As discussed above, the opinion of a treating physician is entitled to substantial weight unless the ALJ has good cause to afford that opinion less weight. See supra § IV.A. Ms. Steade and Ms. Ambrose are not treating physicians. Ms. Steade is a nurse practitioner, and Ms. Ambrose is a mental health counselor. (R. 705.) Nurse practitioners and mental health counselors are not entitled to the deference given treating physicians. See Jones v. Colvin, No. 3:13-cv-114-J-JRK, 2014 WL 1207357, at *5 (M.D. Fla. Mar. 24, 2014) ("[M]ental health counselors are not listed as acceptable medical sources for the purpose of establishing an impairment, see 20 C.F.R. §§ 404.1513(a), 416.913(a), and their opinions are not entitled to deference."); Butler v. Astrue, No. CA 11-00295-C, 2012 WL 1094448, at *2-3 (S.D. Ala. Mar. 30, 2012) ("[A] nurse practitioner's opinion is considered `other source' evidence, and is not given the same controlling weight as a `treating source." (citation omitted)); Hammond v. Astrue, No. 3:10-CV-24 (CDL), 2011 WL 2581955, *2 (M.D. Ga. Jun. 1, 2011) ("Although a treating physician's opinion is to be accorded great weight and deference, unless good cause is shown to the contrary, an opinion from a treating source such as a nurse practitioner is not entitled to the same weight."). As the court in Hammond explained:
(Id.) While the opinions of "other sources," such as nurse practitioners and mental health counselors, are not entitled to deference, generally the ALJ "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 [ALJ]'s reasoning, when such opinions may have an effect on the outcome of the case." Butler, 2012 WL 1094448, at *3 (citing SSR 06-03p, 2006 WL 2329939, at *6 (Aug. 9, 2006)).
Here, the ALJ considered Ms. Steade and Ms. Ambrose's MRFC, (R. 25), and evaluated it in conjunction with the Plaintiff's mental health treatment notes, (R. 22-25), which show that the Plaintiff "has been treated for bipolar disorder and anxiety" and that "[s]he receives medication management and counseling," (R. 31). After considering all the evidence, the ALJ found that Ms. Steade and Ms. Ambrose's assessment was not persuasive. (R. 31.) The ALJ stated that
(Id.)
Because Ms. Steade and Ms. Ambrose are not treating physicians, the ALJ did not err by failing to afford their opinions controlling weight. The ALJ sufficiently discussed Ms. Steade and Ms. Ambrose's assessment, finding it unpersuasive because it is unsupported by the treatment notes and the Plaintiff's own reports of her activity level. (R. 31.) Therefore, the undersigned is able to follow the ALJ's reasoning and concludes that it is based on substantial evidence.
Because the Plaintiff raises no other issues, and because substantial evidence of record supports the Commissioner's determination that the Plaintiff can perform the physical and mental requirements of a reduced range of light work as identified by the ALJ, (R. 27), the Commissioner's determination is due to be affirmed. See Land v. Comm'r of Soc. Sec., 494 F. App'x 47, 48 (11th Cir. Oct. 26, 2012) ("`The burden is primarily on the claimant to prove that he is disabled, and therefore entitled to receive Social Security disability benefits.'"); Conner v. Astrue, 415 F. App'x 992, 995 (11th Cir. Feb. 28, 2011) ("An individual who files an application for Social Security Disability and Supplemental Benefits must prove that she is disabled."); Green v. Soc. Sec. Admin., 223 F. App'x 915, 223 (11th Cir. May 2, 2007) ("[T]he burden lies with the claimant to prove her disability.").
Accordingly, it is
(Id.) Prior to that visit, the Plaintiff was last seen on April 16, 2010, by a different nurse practitioner, Donna Swearingen, whose findings were relatively mild. (R. 637; see R. 728.)
