           Case: 16-16806   Date Filed: 10/17/2017   Page: 1 of 13


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-16806
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 3:15-cv-00243-PDB



MARY MARGARET LUPARDUS,

                                                            Plaintiff-Appellant,

                                 versus

COMMISSIONER OF SOCIAL SECURITY,

                                                           Defendant-Appellee.

                       ________________________

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

                            (October 17, 2017)

Before MARCUS, JULIE CARNES, and FAY, Circuit Judges.

PER CURIAM:
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      Appellant Mary Lupardus appeals the magistrate judge’s order affirming the

Commissioner of Social Security’s (“the Commissioner”) partially favorable

decision awarding her a closed period of disability. On appeal, Lupardus argues

that the Administrative Law Judge’s (“ALJ”) determination that she was only

entitled to a closed period of disability because she experienced medical

improvement was not supported by substantial evidence. She also asserts that the

Appeals Council erred by not granting review based on the new evidence she

submitted. After careful review, we affirm.

I.    BACKGROUND

      In July 2011, Lupardus filed an application for disability insurance benefits

with the Social Security Administration. Alleging a disability onset date of

January 24, 2011, she represented that she was disabled and unable to work due to

a lower back and left thumb injury. The Commissioner denied Lupardus’s

application for benefits upon initial review and reconsideration.

      At a subsequent hearing before the ALJ on July 17, 2013, Lupardus testified

that she uses a cane, a walker, and a wheelchair that were suggested by her

physician but not prescribed. She has been unable to walk without a walker since

2011. She stopped working in January 2011 after she was injured at work, but she

had looked for clerical work since that time. She indicated, however, that she is

not able to sit or stand. She had previously worked as a telephone customer


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service representative, a mail handler, an officer manager, a medical assistant, and

an usher. During a typical day, she does light housework and usually spends six or

seven hours completing online classes.

        Following the hearing, the ALJ issued a partially favorable decision,

concluding that Lupardus was under a closed period of disability from January 24,

2011, through April 1, 2012. However, the ALJ concluded that Lupardus was no

longer disabled and capable of performing her past relevant work as of April 2,

2012.

        Based on the evidence, the ALJ determined that from January 24, 2011,

through April 1, 2012, Lupardus suffered from disorders of the spine and left

thumb. Although these impairments did not meet or equal any of the listed

impairments in the Social Security regulations, the ALJ determined that Lupardus

had the residual functional capacity to perform less than the full range of sedentary

work during this time period and thus could not perform her past relevant work.

Concluding that there were no jobs that existed in the economy that Lupardus

could perform, the ALJ determined that Lupardus was disabled from January 24,

2011, through April 1, 2012.

        The ALJ concluded, however, that medical improvement related to

Lupardus’s ability to work occurred as of April 2, 2012. Specifically, as of that

date, Lupardus has had the residual functional capacity to perform a range of


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sedentary work with some restrictions. Based on Lupardus’s medical improvement

and her increased residual functional capacity, the ALJ determined that Lupardus

could perform her past relevant work as an office manager and as a telephone sales

representative. Accordingly, the ALJ concluded that Lupardus’s disability ended

on April 2, 2012.

      Following the ALJ’s decision, Lupardus requested review from the Appeals

Council. She also submitted additional evidence, including a vocational services

evaluation completed on November 21, 2013. The Appeals Council denied

Lupardus’s request for review, stating that it considered the additional evidence but

that this evidence did not provide a basis for changing the ALJ’s decision.

      In 2015, Lupardus filed a complaint in the district court challenging the

unfavorable portion of the ALJ’s decision. The parties consented to the case being

heard before a magistrate judge. The magistrate judge subsequently entered a final

judgment affirming the Commissioner’s decision that Lupardus was only entitled

to a closed period of disability. This appeal followed.

II.   DISCUSSION

      A.     Standard of Review

      We review the ALJ’s decision for substantial evidence, but its application of

legal principles de novo. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir.

2005). “Substantial evidence is more than a scintilla and is such relevant evidence


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as a reasonable person would accept as adequate to support a conclusion.”

Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004)

(quotations omitted). We may not reweigh the evidence and decide facts anew,

and must defer to the ALJ’s decision if it is supported by substantial evidence. See

Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005).

      B.     ALJ’s Determination Regarding Medical Improvement

      Lupardus argues that substantial evidence does not support the ALJ’s

determination that she experienced medical improvement and was no longer

disabled as of April 2, 2012.

      The ALJ may terminate a claimant’s benefits upon a finding that there has

been medical improvement in the claimant’s impairment or combination of

impairments related to the claimant’s ability to work, and the claimant is now able

to engage in substantial gainful activity. 42 U.S.C. § 423(f)(1). Medical

improvement is defined as “any decrease in the medical severity of [the claimant’s]

impairment(s) which was present at the time of the most recent favorable medical

decision that [the claimant was] disabled.” 20 C.F.R. § 404.1594(b)(1). This

determination must be based on medical evidence showing an improvement in the

symptoms, signs, or laboratory findings associated with the impairments. Id.

Moreover, the claimant’s medical improvement must relate to her ability to work.

See id. § 404.1594(a). A medical improvement relates to a claimant’s ability to


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work if her impairments have decreased in severity since the last favorable

decision and her capacity to perform basic work activities has increased during that

period. Id. § 404.1594(b)(3).

       Here, substantial evidence supports the ALJ’s finding that there has been

substantial improvement in Lupardus’s medical condition and residual functional

capacity as of April 2, 2012. The ALJ found Lupardus disabled because her back

and thumb injuries were of such severity that she could not perform work at even

the sedentary level. In light of her residual functional capacity, the ALJ

determined that Lupardus could not perform her past relevant work and that there

were no jobs in the economy that she could perform.

       However, the record shows that since that time, Lupardus has experienced

significant improvement such that she is no longer disabled. Indeed, the medical

records from Lupardus’s treating physician, Dr. Mark Hofmann, dated between

March and April 2012, indicated that it was possible Lupardus was capable of

performing more activity than she was currently performing and that she was

exhibiting a greater disability than one would expect from her diagnosis. The

notes further indicated that Lupardus could do sedentary work with some

restrictions. 1 Specifically, on March 29, 2012, Dr. Hofmann discharged Lupardus

from the pain management rehabilitation program due to lack of progress and

1
  Notably, as early as February 2012, Lupardus reported to Dr. Hofmann that her gait was
improving and that she could tolerate standing for 40 minutes at a time.
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inconsistencies in physical therapy. In particular, Lupardus exhibited only

inconsistent leg weakness and the range of motion in her shoulder was normal

upon initial examination, yet she irregularly exhibited only 100 to 110 degrees of

shoulder flexion.

      On April 24, 2012, Dr. Hofmann noted that Lupardus had no focal motor or

sensory deficits in her lower extremities, her bilateral straight-leg raising tests were

negative, and that she should have more functionality based on her medical

condition and the diagnostic studies. In July 2012, Dr. Hofmann encouraged

Lupardus to increase her activity level and noted that he did not believe she had a

neurological problem.

      In an October 2012 treatment note from Dr. Ismail Salahi, Lupardus reported

lower back pain radiating down both legs, numbness, and weakness. However, Dr.

Salahi’s examination showed full 5/5 motor strength. Then, in January 2013,

Lupardus reported to Dr. Hofmann that she was no longer using the walker and

was benefiting from the prescribed medication and able to take less of it. As the

ALJ concluded, the improvement in Lupardus’s medical condition was related to

her ability to work because her residual functional capacity to do basic work

activities increased. See 20 C.F.R. § 404.1594(b)(3), (c)(2), (c)(3)(ii).

      In short, the treating physician’s notes supported a conclusion that any

disability had ceased. We are not persuaded by Lupardus’s argument that the ALJ


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erred by assigning less weight to certain other portions of Dr. Hofmann’s opinions.

In particular, the ALJ rejected Dr. Hofmann’s opinion dated in April 2012, in

which Dr. Hofmann opined that Lupardus would have to alternate between sitting

and standing. Also at issue is a medical source statement dated July 12, 2013, in

which Dr. Hoffman indicates that Lupardus had severe functional limitations due

to her back pain.

      When evaluating the medical opinion evidence, the ALJ must give the

opinion of a treating physician “substantial or considerable weight” unless there is

good cause not to do so. Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1179

(11th Cir. 2011) (quotations omitted); 20 C.F.R. § 404.1527(c)(2) (stating that the

opinion of a treating physician will be given controlling weight if it is supported by

medically acceptable and laboratory diagnostic techniques and is not inconsistent

with the other substantial evidence in the record). We have nevertheless concluded

that good cause exists for affording less weight to a treating physician’s opinion

when: “(1) [that] opinion was not bolstered by the 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, 357 F.3d 1232, 1241 (11th Cir. 2004). If the ALJ chooses to assign less

weight to a treating physician’s opinion, however, he must clearly articulate his

reasons for doing so. Id.


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       On this record, substantial evidence supports the weight the ALJ assigned to

Dr. Hofmann’s opinions. The ALJ articulated good cause for assigning less weight

to certain portions of Dr. Hofmann’s opinions because they were inconsistent with

the evidence in the record, including his own treatment notes.2 Although Dr.

Hofmann opined on April 3, 2012 that Lupardus would have to alternate between

sitting and standing, he also stated on that very same day that based on the

inconsistencies observed in physical therapy, it was “very possible that [Lupardus]

is capable of greater activity.” As to Dr. Hofmann’s July 2013 opinion that

Lupardus had severe functional limitations that were perhaps more limited than

previously reported, as early as January 2013, Lupardus had reported to Dr.

Hofmann that she had some decrease in pain following a steroid injection, that she

could tolerate sitting 40 to 50 minutes at a time, and that she avoided using her

walker and only had to use the back brace during sustained activity. Dr.

Hofmann’s examination revealed that Lupardus could ambulate without a back


2
  Notably, the ALJ’s determination that Lupardus had the residual functional capacity to do a
range of sedentary work with some restrictions was not entirely inconsistent with Dr. Hofmann’s
opinion, as the doctor opined that Lupardus could not lift more than ten pounds and that she
could stand or walk less than two hours in an eight-hour day. See 20 C.F.R. § 404.1567(a)
(“Sedentary work involves lifting no more than 10 pounds at a time. . . . Jobs are sedentary if
walking and standing are required occasionally and other sedentary criteria are met.”); Soc. Sec.
Ruling 83-10, 1983 WL 31251, at *5 (S.S.A. Jan. 1, 1983) (indicating that although sedentary
work occasionally requires being on one’s feet, “periods of standing or walking should generally
total no more than about 2 hours of an 8-hour workday, and sitting should generally total
approximately 6 hours of an 8-hour workday.”). Further, the vocational expert testified at the
hearing that Lupardus’s past relevant work as a telephone customer service representative and as
an office manager had a sit/stand option.


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brace or walker with some upper body support and that she had no focal motor or

sensory deficits in the lower extremities. A subsequent examination in June 2013

showed that Lupardus could ambulate slowly without her walker and, although she

exhibited weakness in her lower extremities, no focal numbness was present.

Thus, substantial evidence supported the good cause articulated by the ALJ for

rejecting certain portions of Dr. Hofmann’s opinions.

      Accordingly, we conclude that substantial evidence supports the ALJ’s

determination that Lupardus experienced medical improvement related to her

ability to work as of April 2, 2012.

      C.     Appeals Council Review

      Lupardus also argues that the Appeals Council erred by denying review

because the new vocational rehabilitation evidence she submitted leads to the

“inescapable conclusion” that she is disabled.

      Typically, a claimant may present new evidence at every stage of the

administrative process. Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253,

1261 (11th Cir. 2007). Although the Appeals Council may decline to review the

ALJ’s denial of benefits, it “must consider new, material, and chronologically

relevant evidence,” submitted by the claimant. Washington v. Soc. Sec. Admin.,

Comm’r, 806 F.3d 1317, 1320 (11th Cir. 2015) (quotations omitted). When a

claimant properly submits new evidence to the Appeals Council, “a reviewing


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court must consider whether the new evidence renders the denial of benefits

erroneous.” Ingram, 496 F.3d at 1262.

       Along with her request for review to the Appeals Council, Lupardus

submitted a vocational services evaluation dated on November 21, 2013—

approximately three months after the ALJ’s decision—from Richard Grissinger, a

vocational evaluator with Vocational Services of Northeast Florida, Inc. In his

report, Grissinger noted that Lupardus presented with poor balance and a

diminished ability to sit and stand. Grissinger concluded that Lupardus was unable

to return to her former employment and was not able to work part-time or full-

time. The Appeals Council denied Lupardus’s request for review, stating that it

considered the new evidence Lupardus submitted, but had determined that this

evidence did not provide a basis for changing the ALJ’s decision.

       We conclude the Appeals Council did not err by denying Lupardus’s request

for review because the vocational services evaluation does not render the

Commissioner’s denial of benefits erroneous.3 See Ingram, 496 F.3d at 1262. As

a vocational evaluator, Grissinger does not constitute an acceptable medical


3
   We note that it is also questionable whether the vocational services evaluation is
chronologically relevant because it was issued three months after the ALJ’s decision and does
not appear to relate back to the decision. See 20 C.F.R. § 404.970(a) (2016) (indicating that
evidence is chronologically relevant where it “relates to the period on or before the date of the
administrative law judge hearing decision.”); Washington, 806 F.3d at 1322–23 (concluding that
a medical examination that takes place after the ALJ’s decision may be chronologically relevant
if it relates back to the date of the ALJ’s decision).


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source, and therefore his opinion cannot be used to show the existence of an

impairment. See 20 C.F.R. § 404.1513(a) (2016)4 (explaining that an acceptable

medical source includes, among others, licensed physicians, psychologists, and

optometrists); Cf. Crawford, 363 F.3d at 1160 (concluding that a chiropractor’s

opinion could not be used to establish the existence of an impairment because a

chiropractor is not an acceptable medical source). But see Soc. Sec. Ruling 06-

03p, 2006 WL 2329939, at *5–6 (S.S.A. Aug. 9, 2006) (the opinion of a non-

medical source should be considered, but the weight assigned to that opinion is

dependent on a number of factors, including whether the opinion is consistent with

the record).

       Grissinger evaluated Lupardus based on testing related to her aptitude for

various occupations, academic achievement, and intellectual functioning. He did

not evaluate Lupardus’s medical condition and his observations of Lupardus’s

condition appear to be based on her subjective complaints. Cf. Crawford, 363 F.3d

at 1159 (discounting treating physician’s opinion in part because it was based on

subjective complaints). Further, Grissinger’s statement that Lupardus could not

work is a finding reserved for the Commissioner. See 20 C.F.R. § 404.1527(d)(1)

(explaining that the finding of whether the claimant is disabled is reserved for the

Commissioner). Grissinger’s evaluation therefore did not provide a basis for

4
  Effective March 27, 2017, this regulation was renumbered as 20 C.F.R. § 404.1502(a). See 20
C.F.R. § 1502(a) (2017).
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changing the ALJ’s decision that Lupardus experienced medical improvement as

of April 2, 2012. Accordingly, the Appeals Council did not err by denying

Lupardus’s request for review.

III.   CONCLUSION

       For the foregoing reasons, the magistrate judge’s order affirming the

Commissioner’s decision that Lupardus was entitled to only a closed period of

disability is AFFIRMED.




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