Moore v. Social Security Administration, Commissioner

Filing 10

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 12/13/12. (CVA)

FILED
2012 Dec-13 PM 02:18
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
MICHAEL ANTOINE MOORE,
Plaintiff,
vs.
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL
SECURITY
ADMINISTRATION,
Defendant.

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Civil Action Number
2:12-cv-344-AKK

MEMORANDUM OPINION
Plaintiff Michael Antoine Moore (“Moore”) brings this action pursuant to
section 205(g) of the Social Security Act (“the Act”), 42 U.S.C. § 405(g), seeking
review of the final adverse decision of the Commissioner of the Social Security
Administration (“SSA”). Doc. 1. This court finds that the Administrative Law
Judge’s (“ALJ”) decision - which has become the decision of the Commissioner is supported by substantial evidence, and, therefore, AFFIRMS the decision
denying benefits.
I. Procedural History
Moore filed his application for Child’s Disability Insurance Benefits under

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Title II of the Social Security Act on April 27, 20091, alleging a disability onset
date of July 1, 2002, due to chronic asthma and allergies. (R. 90, 209, 213). After
the SSA denied his application on July 29, 2009, Moore requested a hearing. (R.
90-96, 97-103). At the hearing on December 7, 2010, Moore was 19 years old
with the equivalent of a high school education and no past relevant work. (R. 5389, 74, 213, 219). Consequently, Moore has never engaged in substantial gainful
activity. (R. 23, 213).
The ALJ denied Moore’s claims on May 19, 2011, which became the final
decision of the Commissioner when the Appeals Council refused to grant review.
(R. 1-6, 17-38). Moore then filed this action pursuant to 42 U.S.C. § 1383(c)(3).
Doc. 1.
II. Standard of Review
The only issues before this court are whether the record contains substantial
evidence to sustain the ALJ’s decision, see 42 U.S.C. § 405(g); Walden v.
Schweiker, 672 F.2d 835, 838 (11th Cir. 1982), and whether the ALJ applied the
correct legal standards, see Lamb v. Bowen, 847 F.2d 698, 701 (11th Cir. 1988);
Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). Title 42 U.S.C. §§ 405(g)
and 1383(c) mandate that the Commissioner’s “factual findings are conclusive if
1

Moore’s application does not appear in the record.
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supported by ‘substantial evidence.’” Martin v. Sullivan, 894 F.2d 1520, 1529
(11th Cir. 1990). The district court may not reconsider the facts, reevaluate the
evidence, or substitute its judgment for that of the Commissioner; instead, it must
review the final decision as a whole and determine if the decision is “reasonable
and supported by substantial evidence.” See id. (citing Bloodsworth v. Heckler,
703 F.2d 1233, 1239 (11th Cir. 1983)).
Substantial evidence falls somewhere between a scintilla and a
preponderance of evidence; “[i]t is such relevant evidence as a reasonable person
would accept as adequate to support a conclusion.” Martin, 849 F.2d at 1529
(quoting Bloodsworth, 703 F.2d at 1239) (other citations omitted). If supported by
substantial evidence, the court must affirm the Commissioner’s factual findings
even if the preponderance of the evidence is against the Commissioner’s findings.
See Martin, 894 F.2d at 1529. While the court acknowledges that judicial review
of the ALJ’s findings is limited in scope, it notes that the review “does not yield
automatic affirmance.” Lamb, 847 F.2d at 701.
III. Statutory and Regulatory Framework
To qualify for disability benefits, a claimant must show “the inability 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
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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); 42 U.S.C. § 416(I). A physical or mental
impairment is “an impairment that results from anatomical, physiological, or
psychological abnormalities which are demonstrated by medically acceptable
clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3).
Determination of disability under the Act requires a five step analysis.
20 C.F.R. §§ 404.1520(a)-(f), 416.920(a)-(f). Specifically, the Commissioner
must determine in sequence:
(1)

whether the claimant is currently unemployed;

(2)

whether the claimant has a severe impairment;

(3)

whether the impairment meets or equals one listed by the Secretary;

(4)

whether the claimant is unable to perform his or her past work; and

(5)

whether the claimant is unable to perform any work in the national
economy.

McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). “An affirmative
answer to any of the above questions leads either to the next question, or, on steps
three and five, to a finding of disability. A negative answer to any question, other
than step three, leads to a determination of ‘not disabled.’” Id. at 1030 (citing 20
C.F.R. § 416.920(a)-(f)). “Once a finding is made that a claimant cannot return to

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prior work the burden shifts to the Secretary to show other work the claimant can
do.” Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995) (citation omitted).
Lastly, where, as here, a plaintiff alleges disability because of pain, he must
meet additional criteria. In this circuit, “a three part ‘pain standard’ [is applied]
when a claimant seeks to establish disability through his or her own testimony of
pain or other subjective symptoms.” Holt v. Barnhart, 921 F.2d 1221, 1223 (11th
Cir. 1991). Specifically,
The pain standard requires (1) evidence of an underlying medical
condition and either (2) objective medical evidence that confirms the
severity of the alleged pain arising from that condition or (3) that the
objectively determined medical condition is of such a severity that it
can be reasonably expected to give rise to the alleged pain.2
Id. However, medical evidence of pain itself, or of its intensity, is not required:
While both the regulations and the Hand standard require objective
medical evidence of a condition that could reasonably be expected to
cause the pain alleged, neither requires objective proof of the pain
itself. Thus under both the regulations and the first (objectively
identifiable condition) and third (reasonably expected to cause pain
alleged) parts of the Hand standard a claimant who can show that his
condition could reasonably be expected to give rise to the pain he
alleges has established a claim of disability and is not required to
produce additional, objective proof of the pain itself. See 20 CFR §§
404.1529 and 416.929; Hale [v. Bowen, 831 F.2d 1007, 1011 (11th
Cir. 1987)].

2

This standard is referred to as the Hand standard, named after Hand v. Heckler, 761
F.2d 1545, 1548 (11th Cir. 1985).
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Elam v. R.R. Ret. Bd., 921 F.2d 1210, 1215 (11th Cir. 1991) (parenthetical
information omitted) (emphasis added). Moreover, “[a] claimant’s subjective
testimony supported by medical evidence that satisfies the pain standard is itself
sufficient to support a finding of disability.” Holt, 921 F.2d at 1223. Therefore, if
a claimant testifies to disabling pain and satisfies the three part pain standard, the
ALJ must find a disability unless the ALJ properly discredits the claimant’s
testimony.
Furthermore, when the ALJ fails to credit a claimant’s pain testimony, the
ALJ must articulate reasons for that decision:
It is established in this circuit that if the [ALJ] fails to articulate
reasons for refusing to credit a claimant’s subjective pain testimony,
then the [ALJ], as a matter of law, has accepted that testimony as true.
Implicit in this rule is the requirement that such articulation of
reasons by the [ALJ] be supported by substantial evidence.
Hale, 831 F.2d at 1012. As such, if the ALJ either fails to articulate reasons for
refusing to credit the plaintiff’s pain testimony, or if the ALJ’s reasons are not
supported by substantial evidence, the court must accept as true the pain testimony
of the plaintiff and render a finding of disability. Id.
IV. The ALJ’s Decision
The ALJ first noted that because Moore applied for disabled child’s
insurance benefits, the Social Security Act provides payment of these benefits “if
the claimant is 18 years old or older and has a disability that began before
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attainting age 22.” (R. 21) citing 20 C.F.R. 404.350(a)(5). In performing the five
step analysis, the ALJ determined that Moore has never engaged in substantial
gainful activity, and therefore met Step One, though he had worked at Wal-Mart in
2010 for a brief time, earning $849.31. (R. 23). Next, the ALJ found that Moore
met Step Two because he suffered from the severe impairments of “asthma,
allergic rhinitis, atopic dermatitis, allergic conjunctivitis, and food allergy.” Id.
The ALJ then proceeded to the next step and found that Moore failed to satisfy
Step Three because he “does not have an impairment or combination of
impairments that meets or medically equals one of the listed impairments.” (R.
25). Although the ALJ answered Step Three in the negative, consistent with the
law, see McDaniel, 800 F.2d at 1030, the ALJ proceeded to Step Four, where he
determined that Moore
has the residual functional capacity [RFC] to perform light work. . .
except that he must have a temperature controlled environment, and
have no excessive exposure to dust, fumes, and gases.
(R. 26). Moreover, the ALJ determined that although Moore has no past relevant
work, considering his “age, education, work experience, and residual functional
capacity, there are light jobs that exist in significant numbers in the national
economy which [Moore] can perform.” (R. 33). Consequently, the ALJ found
that Moore “has not been under a disability, as defined in the Social Security Act,
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from his attainment of age 18 through the date of [the ALJ’s] decision.” (R. 34).
V. Analysis
The court turns now to Moore’s contentions that the ALJ failed (1) to
properly consider all of Moore’s impairments in combination and (2) to place
proper emphasis on Moore’s activities of daily living. See doc. 8 at 5-10. The
court addresses each contention in turn.
A.

Failure to consider impairments in combination

Moore argues that, “each of his impairments should have been considered in
combination with each other,” and that “the ALJ fails to properly consider
[Moore’s] migraine headaches in conjunction with [Moore’s] asthma, despite
noting headaches in his decision,” and finally that “the ALJ’s evaluation of
[Moore’s] combination of impairments stops at whether the combination meets a
listing, but does not consider them beyond that step.” Doc. 8 at 5-6. Accordingly,
Moore concludes, the ALJ’s decision is not “based upon substantial evidence.” Id.
at 6. The court finds Moore’s contentions unpersuasive because the ALJ clearly
reviewed Moore’s entire medical history and found that “no treating, examining or
reviewing physician has reported that [Moore’s] asthma and allergies prevent him
from engaging in work activity on a sustained basis,” and that Moore’s “medical
records indicate a history of headaches, but not of a frequency or severity to
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interfere with the performance of work on a sustained basis.” (R. 30-31). Indeed,
the ALJ discussed each of Moore’s impairments, including noting Moore’s history
of asthma and allergies since childhood, but found the subjectively alleged
intensity, persistence, and limiting effects of these impairments were not fully
credible. (R. 23, 30). The record supports the ALJ’s finding.
As related to his limitations, Moore testified that he tried to work at WalMart for approximately four weeks but “just couldn’t keep up” because of anxiety
and asthma. (R. 78). Moore’s mother, Keisha Yeldell, noted Moore’s anxiety and
nervousness and also testified that Moore has limitations because Moore’s asthma
and allergies, which are triggered by many things, including trees, smoke, cats,
dogs, perfumes, and air fresheners, make it hard for Moore to get around on a
daily basis. (R. 61). Yeldell testified also that Moore’s asthma attacks trigger
chest pains, which are “almost like a heart attack,” (R. 66), and that doctors think
Moore may have fibromyalgia, (R. 62-64). However, the ALJ noted correctly that
the medical record contains no evidence of a fibromyalgia diagnosis. (R. 25).
Critically, neither Moore nor Yeldell mentioned anything about the
purported disabling effects of Moore’s migraines. See (R. 53-88). Rather, the
medical evidence shows that when Moore sought treatment for his conditions, he
consistently complained primarily of asthma and allergies and was treated for
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those conditions predominately, rather than for migraines. For example, Dr.
Adina Knight treated Moore at Alabama Allergy and Asthma Center beginning in
June 2008 and diagnosed Moore with uncontrolled, moderate, persistent asthma
and uncontrolled allergic rhinitis, moderate partially controlled atopic dermatitis
(eczema), food allergy, and chronic allergic conjunctivitis. (R. 377). While
Moore indicated that he had migraines in June and again in September 2008, Dr.
Knight made no assessment or recommendation regarding the migraines. See (R.
375-78, 381-82). Moreover, in August 2010, Dr. Weily Soong, also at the
Alabama Allergy and Asthma Center, reported that Moore was under his care for
the asthma, which Dr. Soong described as a chronic condition that restricts
Moore’s breathing at times and can cause a tight feeling in his chest. (R. 424).
Dr. Soong prescribed medications to control the asthma symptoms, and
encouraged Moore to avoid certain known triggers, including cigarette smoke,
strong odors like perfumes, cleaning supplies, air fresheners, undesirable climate,
physical activity, and respiratory infections. Id. Critically, Dr. Soong also never
mentioned Moore’s migraines or any treatment related to that condition. See id.
Finally, during Moore’s last reported visit to the Alabama Allergy and Asthma
Center in August 2011, Moore complained chiefly of tightness in his chest,
shortness of breath, and a stuffy, runny nose. (R. 653-57). Although Moore also
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reported having migraine headaches under his pertinent past history, the primary
work-up concerned his asthma and allergies and no medication or treatment plan
was indicated for his migraine pain. See id.
The ALJ noted that St. Vincent’s Hospital admitted Moore in September
2010 with chief complaints of a twitching spell. (R. 571). Again, although Moore
indicated a past medical history of asthma and migraine headaches, St. Vincent’s
did not primarily treat Moore for the migraines. Id. Instead, the hospital focused
on determining if Moore had meningitis and performed an MRI of Moore’s spine
and brain, which returned with no acute abnormalities, and a lumbar puncture that
was negative for acute infection. (R. 548). Moreover, St. Vincent’s consulted a
neurologist who evaluated Moore and found no neurologic problems. Id. Finally,
while not specifically indicated for Moore’s migraines, the discharge notes
instructed Moore to take ibuprofen every six hours for his pain. (R. 548, 556).
In sum, Moore correctly contends that the ALJ must consider the combined
effect of his impairments. Doc. 8 at 5 (citing Swindle v. Sullivan, 914 F.2d 222,
226 (11th Cir. 1990) and Walker v. Bowen, 826 F.2d 996, 1001 (11th Cir. 1987)).
However, by exhaustively evaluating each of Moore’s impairments—and finding
that the objective medical evidence establishes that Moore “does not have a ...
combination of impairments that meets or medically equals one of the listed
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impairments in 20 CFR Part 404, Subpart P, Appendix 1”—the ALJ sufficiently
considered Moore’s impairments in combination. See (R. 25, 23-32). Indeed, the
Eleventh Circuit in Walker found an ALJ erred because he “made specific
reference only to [claimant’s] left ankle and obesity. The ALJ’s findings do not
mention [claimant’s] arthralgias in the right knee, phlebitis in the right arm,
hypertension, gastrointestional problems, or asthma, except to the extent that these
‘subjectiv[e] complain[t]s do not establish disabling pain.’” 826 F.2d at 1001.
Conversely, here, the ALJ discussed and analyzed each of Moore’s severe
impairments—asthma and allergies— as well as the non-severe impairment of
migraine headaches, and reached a conclusion based on all of these impairments.
(R. 23-32). See also Wilson v. Barnhart, 284 F.3d 1219, 1224-25 (11th Cir. 2002)
(citing Jones v. Dept. of Health and Human Servs., 941 F.2d 1529, 1533 (11th Cir.
1991), for the proposition “that the following statement by an ALJ evidenced
consideration of the combined effect of a claimant’s impairments: while ‘[the
claimant] has severe residuals of an injury to the left heel and multiple surgeries
on that area, [the claimant does not have] an impairment or combination of
impairments listed in, or medically equal to one listed in Appendix 1, Subpart P,
Regulation No. 4.’”) (alteration in original). Moreover, the court finds crucial that
in Moore’s disability report, he reported disability only due to chronic asthma and
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chronic allergies, (R. 213), that neither he nor his mother mentioned his migraine
headaches during their testimonies, see (R. 53-88), and that no physician opined
that Moore’s asthma or migraines were disabling. Therefore, the substantial
evidence supports the ALJ’s determination that Moore’s impairments were not
disabling.
B.

Undue emphasis on Moore’s activities of daily living

Moore contends also that the ALJ placed undue emphasis on Moore’s
ability to perform activities of daily living. Doc. 8 at 6-9. Specifically, Moore
states that the “ALJ concludes that because Plaintiff attempts to perform simple
household tasks on occasion, shops on occasion, watches television, reads, plays
video games, uses the computer, and talks to friends, that this demonstrates that
Plaintiff is not disabled. Without going into the difficulties that Plaintiff has in
performing these simple activities, Plaintiff submits that these limited activities are
not what would be expected of a viable work candidate and certainly do not
demonstrate that Plaintiff is capable of work activity.” Id. at 6-7. To support his
contention, Moore cites Easter v. Bowen, 867 F.2d 1128, 1130 (8th Cir. 1989), for
the proposition that “an applicant need not be completely bedridden or unable to
perform any household chores to be considered disabled.” Id. at 7.
Easter is however not helpful because the ALJ did not rely solely on
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Moore’s ability to do household chores. As Moore correctly pointed out, the ALJ
noted that Moore reported that his daily activities included taking a shower, taking
medication, watching television, reading, talking on the phone, chatting online,
and playing handheld video games, and that he had never been able to do normal
activities without getting sick. (R. 28, 232-36). The ALJ also considered Moore’s
reports that he could make sandwiches, prepare frozen dinners, wash dishes,
sweep, and iron, depending on how he felt, but that he could not do yard work
because of his allergies and that he had difficultly with many activities because his
condition triggers attacks – i.e., loss of breath, chest pain, tiredness, dizziness, or
complete lack of consciousness. (R. 234-37). The ALJ then found that Moore’s
daily activities were not consistent with disabling limitations. (R. 31). However,
the ALJ relied on the medical record to make his findings about Moore.
Specifically, the ALJ found that Moore’s “medical records do not indicate that his
impairments are uncontrolled with compliance with treatment, and his treating
physicians have not reported that his impairments prevent him from working on a
sustained basis.” Id. Further, relying on the medical evidence, the ALJ found that
Moore’s RFC was consistent with his physicians’ advise to avoid extreme activity,
animals, and fumes. Id.
The court agrees with the ALJ’s RFC and notes that while the ALJ noted
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Moore’s activities of daily living as one factor that demonstrated Moore is not
disabled, the ALJ primarily relied on the medical record and placed no undue
emphasis on Moore’s activities. In short, the ALJ placed proper emphasis on
Moore’s activities of daily living, and the substantial evidence supports the ALJ’s
RFC determination.
VI. Conclusion
Based on the foregoing, the court concludes that the ALJ’s determination
that Moore is not disabled is supported by substantial evidence, and that the ALJ
applied proper legal standards in reaching this determination. Therefore, the
Commissioner’s final decision is AFFIRMED. A separate order in accordance
with the memorandum of decision will be entered.
Done the 13th day of December, 2012.

________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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