HARRISON

v.

COMMISSIONER OF SOCIAL SECURITY

Plaintiff seeks judicial review of the denial of her claims for Supplemental Security Income (“SSI”) and period of disability and disability insurance benefits (“DIB”). As the Administrative Law Judge’s (“ALJ”) decision was based on substantial evidence and employed proper legal standards, the Commissioner’s decision is affirmed.

I. Procedural Background

Plaintiff filed applications for SSI and a period of disability and DIB (Tr. 214-21). The Commissioner denied Plaintiff’s claims both initially and upon reconsideration (Tr. 77-132). Plaintiff then requested an administrative hearing (Tr. 154-55). Per Plaintiff’s request, the ALJ held a hearing at which Plaintiff appeared and testified (Tr. 34-64). Following the hearing, the ALJ issued an unfavorable decision finding Plaintiff not disabled and denied Plaintiff’s claims for benefits (Tr. 14-26). Plaintiff requested review from the Appeals Council, which the Appeals Council denied (Tr. 1-4). Plaintiff then timely filed a complaint with this Court (Doc. 1). The case is now ripe for review under 42 U.S.C. §§ 405(g) and 1383(c)(3). II. Factual Background and the ALJ’s Decision Plaintiff was born on July 20, 1980 and was 38 years old on her administrative hearing date (36 on her alleged onset date) (Tr. 39, 216). Plaintiff claimed disability beginning October 23, 2016 due to Marfan syndrome, lower back pain, depression, anxiety, and epilepsy (Tr. 255).1 She graduated high school (Tr. 34), and her past work experience includes waiting tables at IHOP, where she worked her way up to trainer and then night shift supervisor after five years (Tr. 40). She had a grand mal seizure at work on Christmas Eve of 2014 (Tr. 326). Afterwards, she returned to IHOP but, in the words of her manager, she “appeared very frail and unable to complete her duties” (Id.). So, in October 2016 (Plaintiff’s onset date), she took a year-long medical leave of absence (Id.). She felt able to return to work part-time at IHOP in October 2017. At the time of her hearing, she was working about 10 hours per week with restricted duties, like frequent breaks and lifting no more than five pounds (two or three plates of food at a time) (Tr. 44- 46).

Plaintiff and her husband live with their six children and three dogs (Tr. 51). She has a driver’s license and sometimes drives her children to school. Her husband does all the cooking and cleaning for the household while she pays the bills (Tr. 52, 54, 56). With her kids at school and her husband at work during the day, Plaintiff’s sister comes over to

III. Legal Standard

To be entitled to benefits, a claimant must be disabled, meaning he or she must be 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. §§ 423(d)(1)(A), 1382c(a)(3)(A). A “physical or mental impairment” is an impairment that results from anatomical, physiological, or psychological abnormalities, which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques. 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D). The Social Security Administration, to regularize the adjudicative process, promulgated the detailed regulations currently in effect. These regulations establish a

“sequential evaluation process” to determine whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920. If an individual is found disabled at any point in the sequential review, further inquiry is unnecessary. 20 C.F.R. §§ 404.1520(a), 416.920(a). Under this process, the ALJ must determine, in sequence: whether the claimant is currently engaged in substantial gainful activity; whether the claimant has a severe impairment, i.e., one that significantly limits the ability to perform work-related functions; whether the severe impairment meets or equals the medical criteria of 20 C.F.R. Part 404 Subpart P, Appendix¹; and whether the claimant can perform his or her past relevant work. If the claimant cannot perform the tasks required of his or her prior work, step five of the evaluation requires the ALJ to decide if the claimant can do other work in the national economy in view of his or her age, education, and work experience. 20 C.F.R. §§ 404.1520(a), 416.920(a). A claimant is entitled to benefits only if unable to perform other work. Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987); 20 C.F.R. §§ 404.1520(g), 416.920(g).

A determination by the Commissioner that a claimant is not disabled must be upheld if it is supported by substantial evidence and comports with applicable legal standards. See 42 U.S.C. §§ 405(g), 1383(c)(3). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938) (internal quotation marks omitted)); Miles v. Chater, 84 F. 3d 1397, 1400 (11th Cir. 1996). While the court reviews the Commissioner’s decision with deference to the factual findings, no such deference is given to the legal conclusions. Keeton v. Dep’t of Health & Human Servs., 21 F. 3d 1064, 1066 (11th Cir. 1994) (citations omitted). In reviewing the Commissioner’s decision, the court may not re-weigh the evidence or substitute its own judgment for that of the ALJ even if it finds that the evidence preponderates against the ALJ’s decision. Bloodsworth v. Heckler, 703 F. 2d 1233, 1239 (11th Cir. 1983). The Commissioner’s failure to apply the correct law, or to give the reviewing court sufficient reasoning for determining that he or she has conducted the proper legal analysis, mandates reversal. Keeton, 21 F. 3d at 1066. Review is thus limited to determining whether the findings of the Commissioner are supported by substantial evidence and whether the correct legal standards were applied. 42 U.S.C. § 405(g); Wilson v. Barnhart, 284 F. 3d 1219, 1221 (11th Cir. 2002).

IV. Analysis

Plaintiff argues the ALJ erred in discounting the opinion of her treating nurse practitioner, Emma McMicken, A.R.N.P., who opined on October⁵, 2017 that Plaintiff could return to work but only for two to three days per week, no more than four hours at a time, and only if she lifts no more than five pounds (Doc. 12 at 7-10; Tr. 624). The Commissioner contends the ALJ properly discounted Ms. McMicken’s opinion because she was not a treating source (meaning the ALJ does not need “good cause” to discount it), and her opinion is inconsistent with the medical evidence (Doc. 12 at 12-14). The undersigned agrees with the Commissioner. As the parties point out, under the regulations in effect when Plaintiff filed her claim, a nurse practitioner is not an “acceptable medical source” for purposes of establishing an impairment. 20 C.F.R. §§ 404.1502(a), 416.902(a).³ Instead, under then-

existing regulations, a nurse practitioner is an “other” medical source used to show the severity of impairments and how these impairments affect the claimant’s ability to work.

SSR 06-03p. This ruling directs the ALJ to “explain the weight given to opinions from these ‘other sources,’ or otherwise ensure that the discussion of the evidence ... allows a claimant or subsequent reviewer to follow the adjudicator’s reasoning.” Id. Here, the ALJ did not run afoul of SSR 06-03p, as Plaintiff contends. Ms. McMicken and Jeffrey Puretz, M.D. of Lakeland Volunteers in Medicine treated Plaintiff nine times between February 22, 2016 and February 14, 2017 for back, hip, and pelvic pain, migraines, seizures, anxiety, and depression (Tr. 465-95, 515-20).5 Ms. McMicken assessed Plaintiff with Marfan syndrome, migraines, epilepsy with recurrent grand mal seizures, depression, and anxiety, among other impairments (Tr. 467). She periodically

Then, on October⁵, 2017 (eight months after she last treated Plaintiff), Ms. McMicken completed a short work/school excuse form stating that Plaintiff can return to work provided it is only for two to three days per week, no more than four hours at a time, and that she lifts no more than five pounds at a time (Tr. 624). The ALJ considered this opinion (which conflicts with the ALJ’s determination that Plaintiff can return to light work) but assigned it “only some weight . . . as the claimant has continued to work as a waitress on a part-time basis since the fourth quarter of 2017.” (Tr. 23). According to Plaintiff, this reason for discounting Ms. McMicken’s opinion is invalid, because Plaintiff only worked within the restrictions Ms. McMicken imposed (Doc. 12 at 9-10). And,

Plaintiff emphasizes, her boss at IHOP, Rick Roberts, wrote that she struggles to perform her duties even with these restrictions (Tr. 326). Plaintiff testified that Mr. Roberts permits her to sit down in the back room at work when she needs to, an accommodation he does not make for anyone else (Tr. 44). Before discounting Ms. McMicken’s October⁵, 2017 form, the ALJ reviewed the medical and opinion evidence. Plaintiff treated with neurologist Dr. DiGeronimo and nurse practitioner Sheri Mehl from November 2015 through July 2018, for seizures, migraines, and back pain (Tr. 393-455, 531-613). Their records consistently note that “[t]he patient had³ seizures the week before Thanksgiving, 2014. Her previous last seizure was Christmas of 2013.” (Tr. 394, 445, 450, 454, 533, 537, 541, 545). A May 2016 EEG report was normal (Tr. 457). Regarding her back pain, a June 2016 lumbar spine MRI showed mild facet arthropathy at L4-L⁵ and L5-S¹, with no acute bony abnormality, focal bulge, or stenosis (Tr. 456).

Still, Plaintiff reported that her right side back pain was constant and increasing. She had back spasms and a decreased range of motion, yet her motor strength was 4.5/5 in her right hip, knee, and ankle, and she walked independently with a normal gait (Tr. 546). Dr. DiGeronimo prescribed trigger injections, hydrocodone, and tizanidine for muscle spasms (Tr. 557-58). Over his years of treating Plaintiff, he did not recommend Plaintiff undergo more invasive treatment measures; to the contrary, he encouraged her to do low-impact exercises like swimming or biking, strengthen her core, drink more water, and stretch (Tr. 396, 411). In January 2017, after Plaintiff reported her mild seizure to Ms. McMicken, Dr. DiGeronimo concurred that Plaintiff’s Depakote levels were not at therapeutic levels (Tr. 531-33). He also noted her right side back pain was increasing, and epidural injections did not help. Plaintiff told Dr. DiGeronimo the pain made it hard for her to stand and walk (Id.). She reported migraines and back spasms in February 2017, and she was taking hydrocodone to control her pain (Tr. 535-38). Dr. DiGeronimo switched Plaintiff to Aptiom in June 2017 to control her seizures and continued to prescribe hydrocodone and Percocet for pain and trigger point injections (Tr. 554). In December 2017, Plaintiff reported she had had no seizures since switching to Aptiom five months earlier: “She has tremors only, no full on seizures.” (Tr. 525). Plaintiff confirmed at her October 2018 hearing that her grand mal seizures are generally controlled with medications (Tr. 48) but that she has petit mal seizures two to three times per week that make her feel “[v]ery blah, very just out of it, non-coherent.” (Tr. 49).

Regarding her back pain, on October 31, 2018 (the day after her administrative hearing), Plaintiff had another lumbar spine MRI, which showed a “[d]iffuse disc bulge compressing the thecal sac and causing some narrowing of bilateral neural foramina” at L4-L⁵ and a “[d]iffuse disc bulge compressing the thecal sac” and L5-S¹ (Tr. 626). Considering this, the ALJ did not err in discounting Ms. McMicken’s October 2017 opinion that Plaintiff is incapable of light work. While Ms. McMicken did not qualify as a treating source when Plaintiff filed her benefits applications, she constituted an “other source” under the regulations. The ALJ had to consider her opinion regarding Plaintiff’s limitations, and he did so: the ALJ evaluated Ms. McMicken’s treatment notes and opinion with the rest of the medical evidence and stated he assigned them less weight, in compliance with SSR 06-03p. See Braun v. Berryhill, No. 8:16-cv-794-T-DNF, 2017 WL 4161668, at *6 (M.D. Fla. Sept. 20, 2017) (affirming ALJ’s decision to discount nurse practitioner’s opinion because ALJ considered it along with the rest of the evidence and stated the weight he assigned it); Gray v. Astrue, No. 8:11-cv-2282-T-17TBM, 2012 WL 7170492, at *8 (M.D. Fla. Nov. 9, 2012) (same), report and recommendation adopted 2013 WL 646293 (M.D. Fla. Feb. 21, 2013), affd 550 F. App’x 850 (11th Cir. 2013); Baliles v. Astrue, 2011 WL 3961818, at *6 (M.D. Fla. Sept. 8, 2011) (noting nurse practitioner’s opinions must be considered, though standing alone “are not entitled to any particular deference”). The ALJ’s decision is supported by substantial evidence. ORDERED:

1. The decision of the Commissioner is affirmed.

2. The Clerk is directed to enter final judgment in favor of the Commissioner and close the case. ORDERED in Tampa, Florida, on March 11, 2021.

SEAN P. FLYNN

UNITED STATES MAGISTRATE JUDGE