Case: 13-15086   Date Filed: 05/30/2014   Page: 1 of 10


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 13-15086
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 1:12-cv-00205-GRJ



GLORIA WEAVER,

                                                            Plaintiff-Appellant,

                                  versus

COMMISSIONER, SOCIAL SECURITY ADMINISTRATION,

                                                         Defendants-Appellees.

                       ________________________

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

                              (May 30, 2014)

Before TJOFLAT, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:
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       Gloria Weaver appeals the Magistrate Judge’s decision affirming the Social

Security Commissioner’s (“the Commissioner”) denial of her application for

supplemental security income (“SSI”) under Title XVI of the Social Security Act,

42 U.S.C. § 1381 et seq. 1 In her opening brief, Weaver argues that the

Administrative Law Judge (“ALJ”) failed to give proper weight to the opinion of

her treating physician, Dr. Jesse A. Lipnick, when assessing both her mental and

physical impairments. Appellant’s Br. at 11 et seq. She contends that Dr. Lipnick

rendered an opinion bolstered by the medical evidence; moreover, the ALJ should

have given the opinion more weight than opinions of non-examining state

physicians because Dr. Lipnick was her treating physician.

                                              I.

       We review de novo the legal principles upon which the Commissioner based

her decision. Moore v. Barnhart, 

, 1211 (11th Cir. 2005). We

review the Commissioner’s findings to determine if they are supported by

substantial evidence. Vega v. Comm’r of Soc. Sec., 

, 1218 (11th Cir.

2001). Substantial evidence is a lower standard than the

preponderance-of-the-evidence standard, as it requires only “such relevant

evidence as a reasonable person would accept as adequate to support a

conclusion.” 

.

       1
         The Magistrate Judge presided over the case to judgment with the parties’ consent. See
28 U.S.C. § 636(c)(1) and (3).
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      A claimant for disability benefits must prove that she is disabled. 

is eligible for benefits if she demonstrates that she was disabled on or

before the last date for which she was insured. 

a five-step evaluation

process to determine whether the claimant is disabled, which is as follows:

(1) whether the claimant is currently engaged in substantial gainful activity;

(2) whether the claimant has a severe impairment or combination of impairments;

(3) whether the impairment meets or equals the severity of the impairment in the

Listing of Impairments; (4) based on a residual functional capacity (“RFC”)

assessment, whether the claimant can perform any of her past work, even with the

impairment; and (5) whether there are significant numbers of jobs in the national

economy that the claimant can perform in light of the claimant’s RFC, age,

education, and work experience. Winschel v. Comm’r of Soc. Sec., 

,

1178 (11th Cir. 2011). In determining whether a claimant is impaired, the ALJ

considers objective medical evidence. 20 C.F.R. § 416.929(c)(2). The ALJ also

considers “any measures [the claimant] use[s] or ha[s] used to relieve [her] pain or

other symptoms. 

      The ALJ generally is required to give the medical opinions of treating

physicians “substantial or considerable weight.” 

.

However, the ALJ need not give considerable weight to a treating physician’s

opinion where good cause exists not to do so. 

is present where the

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(1) treating physician’s opinion is not bolstered by the evidence, (2) the evidence

supported a contrary finding, or (3) the treating physician’s opinion was

conclusory or inconsistent with the doctor’s own medical records. 

must clearly articulate her reasoning for discounting the treating physician’s

opinion. 

opinions of treating physicians generally are given

more weight than the opinions of non-treating physicians. Lewis v. Callahan, 

, 1440 (11th Cir. 1997).

                                              II.

       After receiving testimony from Weaver and considering the medical

evidence submitted, the ALJ found that Weaver had not engaged in substantial

gainful activity since the date of her application for SSI benefits 2 and that she had

severe physical impairments that, individually or in combination, had more than a

minimal effect on her ability to perform work-related functions, to-wit:

degenerative disc disease, degenerative joint disease, carpal tunnel syndrome,

chronic obstructive pulmonary disease, obesity, and hypertension.

       The ALJ found Weaver’s alleged mental impairments—a bipolar disorder

coupled with chronic frustration and anger—not severe since they presented no

more than a minimal limitation on her ability to perform basic mental work

       2
         Weaver, a single woman who lived with her two teenage children, testified that she had
not worked in over 15 years, that she did some housework and could go grocery shopping with
her daughter and sister, but that she had to hold onto the grocery cart to walk. Even then, in
walking, she would experience pain in her hip, knee and back and her left leg went numb.
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activities. The ALJ based that finding on the opinions of two psychologists, Carol

A. Deatrick, Ph.D., and Alan J. Harris, Ph.D., who stated that the bipolar disorder

was “well managed on medication” and the scant weight she gave the opinion of

Kim Thomas, ARNP (“advanced registered nurse practitioner”), who concluded

that Weaver could not work because she was easily frustrated and angered.

       The Magistrate Judge, in reviewing the ALJ’s decision, focused his attention

on the issue Weaver raises in this appeal: whether the ALJ failed to give proper

weight to the opinion of her treating physician, Dr. Lipnick, that she was disabled

because she “can stand and/or walk less than 2 hours in an 8-hour workday; . . .

can sit less than about 5 hours in an 8-hour workday; . . . and can be easily

frustrated & angered.” Appellant’s Br. at 2-3, 9-10, 13-14. 3 Like the Magistrate

Judge, we are reviewing a cold record and, in essence, deciding whether he got it

right in concluding that substantial evidence supported the ALJ’s decisions to

reject Dr. Lipnick’s opinion that Weaver’s propensity to become easily frustrated

and angry constituted a mental impairment and to “assign only some weight” to his

opinion that her physical impairments rendered her unable to work.




       3
          Dr. Lipnick wrote that Weaver “can be easily frustrated & angered” in responding to
the Commissioner’s question, “Is this individual capable of sustaining work activity for eight
hours a day, five days a week?” He wrote that Weaver “can stand and/or walk . . . . in an 8-hour
workday” in responding to the “Commissioner’s questions regarding . . . Weaver’s physical
limitations.” Appellant’s Br. at 2-3, 9-10, 13-14.
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       Dr. Lipnick addressed Weaver’s alleged mental impairment in a “Treating

Source Mental Health Report” dated May 2, 2008, and prepared by Kim Thomas. 4

Weaver argues that the ALJ should have given great weight to Dr. Lipnick’s

opinion that she was not capable of sustaining work activity for eight hours a day,

five days a week, because “she can easily be frustrated & angered.” 

The

ALJ said this about Dr. Lipnick’s opinion.

       In a form dated May 21, 2008, Kim [Thomas], ARNP, wrote that the
       claimant could not sustain work because she can be easily frustrated
       and angered. However, Ms. [Th]omas in the same form wrote that the
       claimant’s bipolar disorder was “well managed on medication” and
       that the claimant had normal mental status examinations with the
       exception of smelling of cigarette smoke. Consequently, the
       undersigned gives little probative weight to Ms. [Thomas’] conclusion
       that the claimant cannot work because of the conclusory nature of this
       opinion, the inconsistency of this statement with Ms. [Thomas’] own
       clinical findings, the claimant’s very minimal treatment for any
       mental health issue, and the opinions of other more qualified
       specialists in the field of mental health, as well as the claimant’s
       activities of daily living.

Judge found ample support in the record for the ALJ’s

decision to afford Thomas’s conclusion little probative weight. What Thomas

wrote in the form itself indicated that Weaver was pleasant and cooperative, that

her thought process and content were normal, that her concentration and memory

were intact, and that she was oriented to person, place and time. As the Magistrate

Judge concluded, the statement that Weaver was “unable to work because of anger

       4
         Dr. Lipnick and Kim Thomas were members of the staff at “Southeastern
Rehabilitation Medicine.”
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and frustration was wholly inconsistent with the observation of Dr.

Lipnick/Ms.Thomas.” 

      That Weaver was unable to work due to her anger and frustration was also

inconsistent with the opinions of Drs. Deatrick and Harris. As the Magistrate

Judge noted, both psychologists concluded that Weaver “did not have a severe

mental impairment and had no daily activity restrictions; mild difficulties in social

functioning and concentration, persistence, or pace; and no episodes of

decompensation.” 

Lipnick’s opinion that in an 8-hour workday, Weaver could stand or

walk less than two hours and could sit less than five hours appears in his answers

to the questions posed by a form entitled “Medical Source Statement of Ability To

Do Work-Related Activities (Physical), that Dr. Lipnick filled out on June 3, 2010.

The form focuses on “Exertional Limitations” and contains a list of questions

under five headings: “1. Lifting/Carrying,” “2. Standing and/or Walking,” “3.

Sitting,” “4. Pushing and/or Pulling,” and Postural Limitations.” The ALJ

summarized Dr. Lipnick’s answers to the questions thusly:

      In a medical source statement form dated June 3, 2010, Dr. Lipnick
      indicated that the claimant could carry ten pounds occasionally and
      less than ten pounds frequently; she could stand and/or walk less than
      two hours in an eight hour day; she could sit for less than six hours in
      an eight hour day; she could push and pull on a limited basis in both
      upper and lower extremities; and she could never climb, balance,
      kneel, crouch, crawl, or stoop. The undersigned has assigned some

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       weight to the opinion of Dr. Lipnick because of his treating
       relationship; however, . . . his estimates are overly pessimistic
       considering the minimally positive clinical and laboratory findings
       and the claimant’s conservative treatment.

       The Magistrate Judge found the following record support for the ALJ’s

decision to afford Dr. Lipnick’s opinion only “some weight.” First, the form Dr.

Lipnick filled out contained this question following the fourth heading, “What

medical/clinical finding(s) support your conclusions in items 1-4 above?” A large

space was provided for Dr. Lipnick to articulate findings that supported those

items. But he left the space blank.

       Second, the diagnostic tests were normal, including an EMG/nerve

conduction study, MRI of the low back, and left leg EDX. The tests revealed no

evidence of nerve entrapment, radiculopathy, or peripheral neuropathy in the left

leg.

       Third, other medical records, including Dr. Lipnick’s own treatment notes,

were contradictory. For example, both Dr. Lipnick and Dr. Wilda Murphy 5

consistently noted that Plaintiff had a normal, non-antalgic gait with some mild

lumbar and cervical spasm. She underwent left carpal tunnel release surgery in

May 2008; the medical records indicate that it was successful, with only minor


       5
        Dr. Murphy, like Dr. Lipnick, was a member of the staff at Southeastern Rehabilitation
Medicine. See 

.
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complaints of pain and numbness following the surgery. In July 2008, Dr. Robert

A. Greenberg, a consultative who examined Weaver, noted that her grip strength

and fine manipulation were normal; his notes do not reflect that she reported any

problems with her left arm. Dr. Greenberg also observed that she had a normal

gait, could tandem walk, and could walk on her heels and toes. He did note some

decreased range of motion and decreased left leg strength. Drs. Eric C. Puestow

and James Patty, agency physicians, both concluded that Weaver could lift and

carry 20 pounds occasionally and 10 pounds frequently; stand or walk six hours in

an 8-hour day or sit about six hours in an 8-hour day.

       In sum, we agree with the Magistrate Judge that substantial evidence

supported the ALJ’s evaluation of Dr. Lipnick’s June 3, 2010, opinion regarding

Weaver’s physical impairments and thus the ALJ’s decision to afford it only some

weight. We also affirm the Magistrate Judge’s decision to affirm the

Commissioner’s decision denying Weaver the SSI benefits she sought. 6


       6
          Although Weaver does not challenge the Magistrate Judge’s decision that substantial
evidence supported the ALJ’s reliance on the vocational expert’s testimony regarding the jobs
available for a woman fitting her description, we nonetheless summarize his testimony.

       The ALJ asked the vocational expert, Robert Hickey, if jobs were available for
       45-year-old woman with a high school education, no past relevant work, and the
       following restrictions: lifting 20 pounds occasionally and 10 pounds frequently,
       sitting, standing, or walking through the workday, occasionally climbing,
       balancing, stopping, kneeling, crouching and crawling and being exposed to
       vibration or concentrated levels of dust, fumes or gases. Hickey opined that this
       hypothetical woman could perform light jobs, including a restaurant bus person,
       dining room attendant, machine attendant—specifically, a confectionary drops
       machine operator—and a bottling line attendant. The ALJ then asked whether
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AFFIRMED.




jobs would be available if the woman was limited to lifting 10 pounds only
occasionally and less than 10 frequently, standing or walking for two hours of an
8-hour day and pushing or pulling only occasionally. Hickey opined that
sedentary jobs were available, including dispatchers at the street department, call-
out operators, and appointment clerks. He adhered to his opinion when asked if
the woman needed to change her position every 10 to 15 minutes. If she had to lie
down beyond normally scheduled break time, though, no jobs would be available.


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