Moore v. Social Security Administration, Commissioner

Filing 19

MEMORANDUM OPINION. Signed by Judge Madeline Hughes Haikala on 9/18/14. (ASL)

FILED
2014 Sep-18 PM 04:16
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
MARVIS STELLA MOORE,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner, Social Security
Administration,
Defendant.

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Case No.: 4:13-CV-00600-MHH

MEMORANDUM OPINION
Plaintiff Marvis Stella Moore brings this action pursuant to 42 U.S.C. §
405(g) and § 1383(c)(3) seeking judicial review of a final adverse decision of the
Commissioner of Social Security, affirming the decision of the Administrative Law
Judge (“ALJ”) who denied Ms. Moore’s Title II claim for a period of disability and
disability insurance benefits and her Title XVI claim for supplemental security
income. After careful review, the Court finds that substantial evidence supports
the ALJ’s decision. Therefore, the Court affirms the Commissioner’s ruling.
STANDARD OF REVIEW
The scope of review in this matter is limited. “When, as in this case, the
ALJ denies benefits and the Appeals Council denies review,” the Court “review[s]

the ALJ’s ‘factual findings with deference’ and her ‘legal conclusions with close
scrutiny.’” Riggs v. Comm’r of Soc. Sec., 522 Fed. Appx. 509, 510-11 (11th Cir.
2013) (quoting Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001)).
The Court must determine whether there is substantial evidence in the record
to support the ALJ’s findings. “Substantial evidence is more than a scintilla and is
such relevant evidence 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). In making this evaluation, the Court may not “reweigh the evidence or
decide the facts anew,” and the Court must “defer to the ALJ’s decision if it is
supported by substantial evidence even if the evidence may preponderate against
it.” Gaskin v. Comm’r of Soc. Sec., 533 Fed. Appx 929, 930 (11th Cir. 2013).
With respect to the ALJ’s legal conclusions, the Court must determine
whether the ALJ applied the correct legal standards. If the Court finds an error in
the ALJ’s application of the law, or if the Court finds that the ALJ failed to provide
sufficient reasoning to demonstrate that the ALJ conducted a proper legal analysis,
then the Court must reverse the ALJ’s decision. Cornelius v. Sullivan, 936 F.2d
1143, 1145-46 (11th Cir. 1991).
PROCEDURAL AND FACTUAL BACKGROUND
On September 15, 2009, Ms. Moore filed an application for a period of
disability and disability insurance benefits pursuant to Title II of the Social
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Security Act, and also filed an application for supplemental security income
pursuant to Title XVI. (TR 24, 172, 176).1 In both applications, Ms. Moore
alleged that her disability began on December 31, 2005. (TR 24, 172, 176). The
Social Security Administration denied both claims on November 23, 2009. (TR 24,
98, 99). Ms. Moore then filed a written request for a hearing before an ALJ on
December 21, 2009. (TR 24, 117).
The ALJ held a video hearing on July 20, 2011. (Doc. 12, p.1; TR 24, 42).
Ms. Moore, accompanied by her attorney, appeared and testified from Gadsden,
Alabama. (Doc. 12, p.1; TR 24). Norma-Jill Jacobson, an impartial vocational
expert, also testified at the hearing. (TR 24, 63). At the time of her hearing, Ms.
Moore was 47 years old, which is considered a “younger person” under 20 C.F.R.
§ 416.963(c). (TR 46). Ms. Moore has an eighth grade education. 2 (TR 44, 47).
Her past relevant work experience is as a poultry worker, a fast food worker, a fast
food assistant manager, and a packer. (TR 64-68).

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The ALJ’s decision states that Ms. Moore filed both applications for Title II and Title XVI on
September 1, 2009 (R. 24); however, both the Application Summary for Disability Insurance
Benefits and the Application Summary for Supplemental Security Income from the Social
Security Administration list the application filing date as September 15, 2009. (TR 172, 176).
This discrepancy is immaterial to the Court’s analysis.
2

When she testified before the ALJ on July 20, 2011, Ms. Moore stated that she completed the
eighth grade. (TR 46-47). Ms. Moore’s Disability Report indicates that Ms. Moore completed
the ninth grade. (TR 236). The discrepancy does not impact the Court’s analysis.
3

On August 12, 2011, the ALJ issued a decision denying Ms. Moore’s
disability claims. (TR 24-35). The ALJ found that Ms. Moore has not engaged in
substantial gainful activity since December 31, 2005, the alleged onset date. (TR
26). Next, the ALJ determined that “[Ms. Moore] has the following severe
impairments: obesity, migraine headaches and major depression.” (TR 26).
Nevertheless, the ALJ found that Ms. Moore does not have an impairment or
combination of impairments that meets or medically equals one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (TR 27). Next, the
ALJ concluded that Ms. Moore had the residual functional capacity (“RFC”) to
perform light work. (TR 26). Specifically, the ALJ found that:
[Ms. Moore] can occasionally climb stairs or ramps, crouch and
crawl; she can frequently balance, stoop, and kneel; and she should
never be exposed to hazardous conditions such as heights and moving
machinery. She can understand, remember and carry out simple
instructions but not detailed and complex instructions. Work place
changes should be infrequent and introduced gradually. She can
perform work that needs little or no judgment and make simple, workrelated decisions. She can never interact with the public and
occasionally interact with co-workers and supervisors meaning she
can be around employees throughout the workday with occasional
conversation and interpersonal interaction; but overall, she is better
dealing with things rather than people. She is able to sustain
concentration and attention for 2 hours at one time with normal break
throughout an 8-hour workday.
(TR 28). The ALJ concluded that Ms. Moore can perform her past relevant work as
a packer because the activities needed to complete her work in such a position are
not precluded by her RFC. (TR 33).

The ALJ also determined that there were
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other similar jobs in the nation and in Alabama that Ms. Moore could perform
despite her limitations, including laundry bagger, food inspector, and assembler.
(TR 34). Consequently, the ALJ concluded that Ms. Moore is not disabled as that
term is defined in the Social Security Act. (TR 35).
On August 12, 2011, this became the final decision of the Commissioner
when the Appeals Council refused to review the ALJ’s decision. (Doc. 12, p. 3;
TR 1). Having exhausted all administrative remedies, Ms. Moore filed this action
for judicial review pursuant to 42 U.S.C. §405(g) and §1383(c)(3).
ANALYSIS
To be eligible for disability insurance benefits, a claimant must be disabled.
Gaskin v. Comm’r of Soc. Sec., 533 Fed. Appx. 929, 930 (11th Cir. 2013). “A
claimant is disabled if he is unable to engage in substantial gainful activity by
reason of a medically-determinable impairment that can be expected to result in
death or which has lasted or can be expected to last for a continuous period of at
least 12 months.” Id. (citing 42 U.S.C. § 423(d)(1)(A)).
A claimant must prove that he is disabled. Id. (citing Ellison v. Barnhart,
355 F.3d 1272, 1276 (11th Cir. 2003)). To determine whether a claimant is
disabled, the Social Security Administration applies a five-step sequential analysis.
Gaskin, 533 Fed. Appx. at 930.
This process includes a determination of whether the claimant (1) is
unable to engage in substantial gainful activity; (2) has a severe and
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medically-determinable physical or mental impairment; (3) has such
an impairment that meets or equals a Listing and meets the duration
requirements; (4) can perform his past relevant work, in the light of
his residual functional capacity; and (5) can make an adjustment to
other work, in the light of his residual functional capacity, age,
education, and work experience.
Id. (citation omitted).

“The claimant’s residual functional capacity is an

assessment, based upon all relevant evidence, of the claimant’s ability to do work
despite his impairments.” Id. (citing Lewis v. Callahan, 125 F.3d 1436, 1440 (11th
Cir. 1997); 20 C.F.R. § 404.1545(a)(1)).
Ms. Moore argues that she is entitled to relief from the ALJ’s decision
because the ALJ failed to assign proper weight to the opinions of Dr. Richard E.
Grant and Dr. Pascual Herrera, Ms. Moore’s treating physicians. (Doc. 12, p. 415). The opinion of a treating physician “must be given substantial or considerable
weight unless ‘good cause’ is shown to the contrary.” Phillips v. Barnhart, 357
F.3d 1232, 1240-41 (11th Cir. 2004). Good cause exists when “(1) [the] treating
physician’s opinion was 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.” Id.; see also
Crawford, 363 F.3d at 1159. “The ALJ must clearly articulate the reasons for
giving less weight to a treating physician’s opinion, and the failure to do so
constitutes error . . . . ‘Moreover, the ALJ must state with particularity the weight
given to different medical opinions and the reasons therefor.’” Gaskin, 533 Fed.
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Appx. at 931 (citing Lewis, 125 F.3d at 1440, and quoting Winschel v. Comm’r of
Soc. Sec., 631 F.3d 1176, 1179 (11th Cir. 2011)).
Dr. Grant, Ms. Moore’s treating psychiatrist, completed a mental source
statement on April 15, 2011, in which he opined that Ms. Moore had a “marked” or
“extreme” limitation in 16 of the 17 areas listed on the form. (TR 349-351). Dr.
Grant commented that Ms. Moore “experiences audio and visual hallucianations.
She has difficulty expressing herself and answers questions with ‘I don’t know’
often. She is also slow to answer questions. Limited insight.” (TR 351). The ALJ
stated that she afforded little weight to Dr. Grant’s opinion because Dr. Grant’s
report is inconsistent with both the medical record as a whole and Ms. Moore’s
statements regarding her abilities. (TR 32). First, despite claiming disabling
depression, Ms. Moore did not seek formal mental health treatment until February
2010, five months after she initially filed applications for benefits and nearly five
years after the alleged disability onset date. (TR 24, 31, 172, 176).3 Second, when
she did receive formal treatment, her mental health treatment notes indicate a
Global Assessment of Function (GAF) score of 55 or 56.4 (TR 353-361). A GAF
score of 55/56 indicates moderate symptoms, not “marked” or “extreme”

3

On page 31 of the ALJ’s decision, the ALJ states that Ms. Moore applied for disability benefits
in September 2010. The Court construes this as a scrivener’s error. The record establishes that
Ms. Moore applied for benefits in September 2009. (TR 172, 176).

4

The GAF score was reported on six separate occasions from February 2010 to April 2011.
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symptoms. (American Psychiatric Ass’n, Diagnostic and Statistical Manual of
Mental Disorders, p. 34 (Text Rev., 4th ed. 2000) (DSM-IV); TR 349-351).
Ms. Moore argues that the ALJ’s reliance on the GAF scores to discredit Dr.
Grant is misplaced:
…neither Social Security regulations nor case law require an ALJ to
determine the extent of an individual’s mental impairment based
solely on a GAF score. In fact, the Commissioner has declined to
endorse the GAF scale “for use in the Social Security and SSI
disability programs,” and has indicated that GAF scores have no
“direct correlation to the severity requirements of the mental disorders
listings.”
(Doc. 12, p. 9) (quoting Camp v. Barnhart, 103 Fed. Appx. 352, 354 (10th Cir.
2004)). That may be so; however, the ALJ did not rely solely upon the GAF score
in discounting Dr. Grant’s opinion.

As discussed above, the ALJ also based her

opinion on Ms. Moore’s lack of formal treatment in the years after she alleged her
depression became disabling.

Additionally, the ALJ considered Ms. Moore’s

testimony regarding her abilities and activities of daily living and Ms. Moore’s
noncompliance with medication and therapy. (TR 31, 32).
The ALJ noted that Dr. Grant’s opinion is inconsistent with Ms. Moore’s
Function Report and her testimony during the hearing regarding her daily
activities. (TR 29, 32).

Ms. Moore has stated that she has no trouble paying

attention as long as she does not have a headache; she can follow written
instructions “as closely as she can” given some limited reading ability; she can
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follow spoken instructions “most of the time”; she has no problem following
authority; and, she has never been fired for failing to get along with other people.
(TR 228-229). The ALJ noted that Dr. Grant’s conclusion that Ms. Moore had
“marked” or “extreme” limitations in these areas is inconsistent with her
statements that she had no such problems. (TR 32). Moreover, Ms. Moore’s
Function Report indicates that she cleans the house, washes clothes, cooks, attends
church, exercises, cares for her personal needs, and spends time with her relatives.
(TR 32, 223, 227). The ALJ found these activities conflicted with Dr. Grant’s
assessment. (TR 32).
Ms. Moore criticizes the ALJ’s reliance on her Function Report, which Ms.
Moore completed on September 19, 2009, more than a year and a half before Dr.
Grant assessed Ms. Moore’s psychological impairments. Ms. Moore points to no
legal authority for the proposition that the completion date of the Function Report
impacts its reliability or the ALJ’s ability to use it. (Doc.12 p. 10).

Moreover,

because Ms. Moore alleges that her disability began in December 2005, the ALJ
properly considered Ms. Moore’s statements in 2009 about the impact of her
depression on her activities of daily living. See e.g., Pinion v. Comm’r of Soc.
Sec., 522 Fed. Appx. 580, 583 (11th Cir. 2013) (affirming ALJ’s decision to reject
treating physician’s disability opinion where claimant’s reported activities were
inconsistent with treating physician’s disability opinion).
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Finally, the ALJ noted that Dr. Grant’s treatment records show, and Ms.
Moore’s testimony confirms, that she has auditory and visual hallucinations. Dr.
Grant prescribed medicine to treat Ms. Moore; however, Dr. Grant’s records
demonstrate that Ms. Moore refused to take her medications for several months.
(TR 53, 355). The ALJ properly considered Ms. Moore’s failure to comply with
her treatment plan as evidence that her psychological impairments were not as
“marked” or “severe” as Dr. Grant opined. See Watson v. Heckler, 738 F.2d 1169,
1173 (11th Cir. 1984) (in addition to objective medical evidence, it is proper for
ALJ to consider failure to seek treatment, daily activities, conflicting statements,
and demeanor at the hearing). Accordingly, the ALJ properly rejected Dr. Grant’s
opinion.
The same analysis applies to Dr. Herrera’s opinion. The ALJ articulated
good cause for assigning little weight to Dr. Herrera’s opinion. The ALJ reviewed
Dr. Herrera’s April 13, 2011 physical capacities evaluation, in which Dr. Herrera
opined that Ms. Moore is able to sit only for one hour during an eight hour day and
that she is able to stand or walk for only one hour out of an eight hour day. (TR
311). Furthermore, the evaluation states that Ms. Moore: (1) can never bend,
stoop, or work with or around hazardous machinery; (2) can rarely push, pull,
climb stairs or ladders, reach, operate motor vehicles or work around

10

environmental pollutants; and (3) is likely to be absent from work more than four
days per month. (TR 311).
Ms. Moore contends that because the findings within the PCE are consistent
with Dr. Herrera’s treatment notes and because Dr. Herrera was her treating
physician whom she saw on more than 16 different occasions, the ALJ failed to
properly weigh his opinion. (Doc. 12, p. 12-13). The ALJ, however, noted that Dr.
Herrera consistently found Ms. Moore’s neurological and extremity examinations
within normal limits. (TR 316, 318, 320, 322-324, 326, 328, 330, 332, 335-337,
344-347). Dr. Herrera also reported that Ms. Moore has “several serious chronic
medical problems everything from arthritis to back pain to met[abolic] syndrome
to psychosis.” (TR 311). As the ALJ noted, there is no evidence of arthritis or
metabolic syndrome in Dr. Herrera’s treatment notes to substantiate his report.
Ms. Moore’s lab evaluations are normal; the results show no signs of metabolic
problems. (TR 316, 318, 320, 322-324, 326, 328, 330, 332, 335-337, 344-347).
Because Dr. Herrera’s opinion is inconsistent with his treatment notes, the ALJ had
good cause to afford little weight to Dr. Herrera’s opinion. See e.g., Crawford, 363
F.3d at 1159.
Furthermore, Ms. Moore’s Function Report states that she attends church,
tries to exercise, washes clothes, prepares sandwiches and frozen dinners daily for
meals, and does some light cleaning around the house. (TR 32, 223-227).
11

Additionally, while Ms. Moore testified that she is able to stand only for
approximately 30 minutes, walk for approximately 30 minutes, and sit for
approximately 30 minutes in a day (TR 51), and she testified that she spends most
of the day in a recliner (TR 57). Consequently, the ALJ determined that Dr.
Herrera’s assessment conflicts with Ms. Moore’s own testimony regarding her
daily activity. 5 The ALJ properly found that the extreme limitations that Ms.
Moore testified to and that Dr. Herrera reported were inconsistent with the
information that Ms. Moore reported in her Function Report regarding her daily
activities. (TR 32). See e.g., Pinion 522 Fed. Appx. at 583.
Having examined the available evidence thoroughly, the ALJ determined
that Ms. Moore is not disabled. That finding rests on substantial evidence. The
Court will not reweigh the evidence or substitute its judgment for that of the
Commissioner.
CONCLUSION
Consistent with the foregoing, the Court concludes that the ALJ’s decision is
based upon substantial evidence and is consistent with applicable legal standards.
Accordingly, the Court AFFIRMS the Commissioner’s decision. The Court will
enter a final judgment consistent with this opinion.
5

Ms. Moore argues that the ALJ improperly failed to determine whether the recliner was in “an
upright-sitting or reclining position.” (Doc. 12, p. 14). The argument improperly attempts to
shift the burden in this proceeding. It is the plaintiff’s burden to provide evidence of a disability
within the meaning of the Social Security Act. (42 U.S.C. §423(d)(5)(A)).
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DONE and ORDERED this September 18, 2014.

_________________________________
MADELINE HUGHES HAIKALA
UNITED STATES DISTRICT JUDGE

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