PATRICIA D. BARKSDALE, Magistrate Judge.
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.
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.
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.
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,
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:
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 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.
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).
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.
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 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 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."
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.
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.
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 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 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.
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.
