Moore v. Social Security Administration, Commissioner
MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 9/18/2015. (YMB)
2015 Sep-18 PM 02:05
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
CAROLYN W. COLVIN,
Acting Commissioner, Social Security
Civil Action Number
Plaintiff Elliot 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”). This court finds that the Administrative Law Judge
(“ALJ”) applied the correct and legal standard and that his decision—which has
become the decision of the Commissioner—is supported by substantial evidence.
Therefore, the court AFFIRMS the decision denying benefits.
I. Procedural History
Moore filed his application for Title II Disability Insurance Benefits and Title
XVI Supplemental Security income on September 21, 2011, alleging a disability
onset date of August 19, 2011 due to seizure disorder, low back pain, and high
blood pressure. (R. 66, 296). After the SSA denied his application, Moore
requested a hearing before an ALJ. The ALJ subsequently denied Moore’s claim
on July 12, 2013, (R. 66), which became the final decision of the Commissioner
when the Appeals Council refused to grant review on December 11, 2014. (R. 1–
4). Moore then filed this action pursuant to §205(g) of the Act, 42 U.S.C. §405(g),
on January 14, 2015. 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
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
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)(I)(A). 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). Specifically, the Commissioner must determine in
whether the claimant is currently unemployed;
whether the claimant has a severe impairment;
whether the impairment meets or equals one listed by the Secretary;
whether the claimant is unable to perform his or her past work; and
whether the claimant is unable to perform any work in the national
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
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.1
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
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
Furthermore, when the ALJ fails to credit a claimant’s pain testimony, the
ALJ must articulate reasons for that decision:
This standard is referred to as the Hand standard, named after Hand v. Heckler, 761 F.2d 1545, 1548
(11th Cir. 1985).
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
Hale, 831 F.2d at 1012. Therefore, 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
In performing the Five Step sequential analysis, the ALJ initially determined
that Moore had not engaged in substantial gainful activity since his application
date and therefore met the criteria for Step One. (R. 68). Next, the ALJ
acknowledged that Moore’s severe impairment of “seizure disorder” met the
requirements of Step Two. (R. 68). In this step, the ALJ also acknowledged the
impairments of “a reducible small inguinal hernia, hypertension, organic mental
disorder/affective disorder, and obesity,” but determined that those were well
controlled and mostly nonsymptomatic. (R. 68–69). The ALJ also found that there
was no medical evidence that would support a finding of disability based on a back
impairment, vision impairment, or speech impairment. (R. 69). The ALJ further
found that Moore’s characterization of the frequency of his seizures was
inconsistent with his medical records and found him to be a less than credible
witness. (R. 74–75). The ALJ then proceeded to the next step and found that
Moore did not satisfy Step Three because he “[did] not have an impairment or
combination of impairments that meets or medically equals the severity of one of
the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.” (R.
71)(internal citations omitted). Although the ALJ answered Step Three in the
negative, consistent with the law, see McDaniel, 800 F.2d at 1030, he proceeded to
Step Four, where he determined that Moore has the residual functional capacity
sit, stand, walk, lift, carry, push, and pull without impairment caused
limitations. He cannot work at heights that are unprotected; he cannot work
around hazardous machinery; he cannot work on large, open bodies of
water; and he cannot operate automotive equipment.
(R. 71). In Step Five, considering Moore’s age, education, work experience, RFC,
and the testimony of a vocational expert (“VE”), the ALJ determined that Moore
was capable of performing his past relevant work as a clean-up worker as it is
“actually and generally performed.” (R. 75). Therefore, the ALJ found that Moore
“has not been under a disability, as defined in the Social Security act from August
23, 2011, through the date of this decision.” Id.
The court now turns to Moore’s contentions on appeal—i.e., that the
Appeals Council erred in not considering the evidence supplied after the hearing,
that the ALJ erred in finding that Moore can perform his past work, and that the
ALJ failed to state reasons for finding Moore not credible. Doc. 1. For the reasons
below, the court rejects each of these contentions.
1. The Appeals Council properly reviewed the new and material evidence
provided after the hearing in front of the ALJ
Moore first argues that the Appeals Council failed to consider his new
evidence relating to medical treatment from his attending physicians, but the
record establishes otherwise. After the ALJ hearing, Moore submitted two sets of
records: one relating to a fall from a ladder in 2008 and the others were a series of
hospital visits that occurred after the ALJ hearing from July 29, 2013 until
December 2013. (R. 8-36; 415-431). Moore provided no substantive argument
regarding why these additional records should have caused the Appeals Council to
remand the claim to the ALJ. Moore simply states that the Appeals Council review
was “purely conclusory, and it epitomizes perfunctory adherence to the ALJ
decision.” (Doc. 1 at 2).
The Appeals Council is required to consider “new and material evidence that
is related to the period on or before the date of the administrative law judge hearing
decision” and “must review the case if the administrative law judge’s action,
findings, or conclusion is contrary to the weight of the evidence currently in
record.” Gichuru v. Astrue, No. 2:11-cv-04203-RDP, 2013 WL 1178723 (N.D.
Ala., March 20, 2013). Where the plaintiff challenges both the ALJ’s decision to
deny benefits and the decision of the Appeals Council to deny review based on
new evidence, “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). Moreover, the Appeals Council is not permitted to
engage in a “perfunctory review” of the ALJ’s decision, but must adequately
evaluate the new evidence in making its decision. Epps v. Harris, 624 F.2d 1267,
1273 (5th Cir. 1980). The Appeals Council is not, however, required “to provide a
detailed discussion of a claimant’s new evidence when denying a request for
review.” Mitchell v. Comm’r, Soc. Sec. Admin., 771 F.3d 780, 783 (11th Cir.
In its notice to Moore, the Appeals Council stated that it accepted Moore’s
new evidence into the record and was denying review because the evidence did not
trigger a remand under its rules. (R. 1, 6). This statement is consistent with
Eleventh Circuit case law which requires only that the Appeals Council provide a
statement stating that it has considered the additional evidence. Mitchell, 771 F.3d
at 783; Mansfiled v. Astrue, 395 F. App’x 528, 530 (11th Cir. 2010); Smith v.
Comm’r of Soc. Sec. Admin., 272 F. App’x 789, 801 (11th Cir. 2008). Here,
however, the Appeals Council actually explained why it rejected Moore’s
evidence. Specifically, the Appeals Council first determined that the evidence
relating to a 2008 hospital visit where Moore was treated for a fall off a ladder that
bruised his hip was irrelevant to Moore’s disability claims relating to his seizure
and did not “provide a basis for changing the Administrative Law Judge’s
decision.” (R. 2). Moreover, as the Commissioner points out in its brief, “these
records do not indicate [Moore’s] fall related to his seizure disorder or resulted in
any significant or latent injury.” Doc. 11 at 17.
The Appeals Council also determined that with respect to the medical
records from July through December 2013, because that new evidence related to a
date after the ALJ made his decision, it did not affect the ALJ’s determination
about whether Moore was disabled on or before July 12, 2013. (R. 2). The Appeals
Council further stated that Moore could file a new claim based on the additional
evidence that he supplied, as that evidence would relate to a disability onset of a
later date. (R. 2).
In short, the Appeals Council clearly articulated the grounds for its denial of
review even though it is not obligated to provide detailed explanations. Mitchell,
771 F.3d at 783. Accordingly, the court finds that the Appeals Council made its
own review, did not perfunctorily accept the ALJ’s determination, and it correctly
decided that the ALJ’s determination was not contrary to the weight of evidence
currently on record. Ingram, 496 F.3d at 1253; Mitchel, 771 F.3d at 783.
2. The ALJ’s denial of disability was supported by substantial evidence
Moore appears to argue that the ALJ arbitrarily denied his claims because
the ALJ did not specifically refer to every piece of evidence in making his
decision. However, this circuit has held that, “[T]here is no rigid requirement that
the [administrative law judge] specifically refer to every piece of evidence in his
decision so long as our Court can conclude [that] the [administrative law judge]
considered [the claimant’s] medical condition as a whole.” Parks ex rel. D.P. v.
Comm’r Soc. Sec. Admin., 783 F.3d 847, 852 (11th Cir. 2015). Relevant here, it is
clear from the ALJ’s opinion that he, in fact, considered the medical condition as a
The ALJ found that Moore’s impairment of seizure did not meet or
medically equal listing-level severity. (R. 71). In determining that Moore’s
impairments did not qualify him as disabled, the ALJ stated that he “considered all
symptoms and the extent to which these symptoms can be reasonably accepted as
consistent with the objective medical evidence and other evidence.” (R. 71). He
initially discussed Moore’s history of inguinal hernia, hypertension, organic mental
disorder/affective disorder, and obesity. (R. 68). He concluded that those
symptoms constituted slight aberrations as neither Moore nor the medical record
indicated any “ongoing or continuous restrictions due to these conditions” and they
were well-controlled or non-symptomatic with his medications. (R. 69). The ALJ
also relied upon Moore’s own testimony related to those symptoms, noting that
Moore did not allege limitations due to obesity or his inguinal hernia. (R. 74).
The ALJ then made determinations regarding the weight afforded to the
different sources of medical evidence. (R. 74). The ALJ gave significant weight to
Dr. Robert Estock, although he did not examine Moore, because the regulation
deemed Dr. Estock a highly qualified expert in Social Security disability
evaluation and his opinion was consistent with the findings of the psychologist. (R.
74). He further determined that Dr. Sathyan Iyer should be afforded significant
weight as he had actually examined Moore, but noted that Dr. Iyer did not find that
Moore had any physical limitations other than those imposed by his seizures. (R.
73–74). Indeed, Dr. Iyer determined that Moore appeared to have no physical
limitations and had “full range of motion of all the major joints without any
restriction.” (R. 353–55). The ALJ afforded little weight to the records from
Quality of Life Health Services because most were treatment notes from a CRNP
“without corroboration of an acceptable medical source.” (R. 74). Finally, the ALJ
gave no weight to the findings of the non-medical Single Decision Maker, and also
gave little weight to the testimony of Moore’s brother, since he did not live with
Moore and was unable to observe the frequency of Moore’s seizures. (R. 73–74).
All of this record evidence is consistent with the ALJ’s conclusion that
Moore has no severe impairments except for the seizure disorder. Because this
evidence supports the ALJ’s determination that Moore’s impairments did not
disqualify him from his past work, and because the ALJ did not rely solely on the
opinion of a non-examining physician, the court rejects Moore’s arguments on this
3. The ALJ did not err in determining that Moore could return to his
Moore contends that the ALJ erred in failing to consider whether Moore’s
history of seizures impacted his ability to do past work. In this Circuit, the claimant
must show the inability to do the previous type of work, not merely the specific
type of job he or she held. Jackson v. Bowen, 801 F.2d 1291, 1293 (11th Cir.
1986). Moreover, “Social Security Ruling 82-61 provides that a claimant can
return to past relevant work if she can perform the specific job she performed,
either in the manner she performed it, or as it is usually performed in the national
economy.” Dudley v. Apfel, 75 F. Supp. 2d 1381, 1382 (N.D. Ga. 1999). The ALJ
is required to assess the claimant’s RFC, which is based upon the relevant evidence
of a claimant’s remaining ability to do work despite his impairments. Lewis v.
Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997); see also, Beech v. Apfel, 100 F.
Supp. 2d 1323, 1330 (S.D. Ala. 2000) (the “determination of residual functional
capacity is within the authority of the ALJ and the assessment should be based
upon all of the relevant evidence of a claimant’s remaining ability to do work
despite her impairments.”). In some cases, this may require that the ALJ engage in
a function by function analysis before expressing the type of work the claimant is
able to perform. Carson v. Comm’r of Soc. Sec., 440 F. App’x 863 (11th Cir.
Here, the ALJ relied upon the testimony of the VE in assessing Moore’s
ability to return to his previous work. In order for the testimony of a VE to
constitute substantial evidence, “the ALJ must pose a hypothetical question which
comprises all of the claimant’s impairments.” Wilson v. Barnhart, 284 F.3d 1219,
1227 (11th Cir. 2002). However, “the hypothetical need only include ‘the
claimant’s impairments,” not each and every symptom of the claimant.” Ingram,
496 F.3d at 1270; see also, McSwain v. Bowen, 814 F.2d 617, 620 n. 1 (11th Cir.
1987) (ALJ did not err in failing to include limitations that did not affect the work
claimant could do); Graham v. Bowen, 790 F.2d 1572, 1576 (11th Cir. 1986)(ALJ
did not err in failing to include in hypothetical question limitations that did not
significantly effect the level of work the claimant can do).
In his hypothetical to the VE, the ALJ appropriately included Moore’s age,
education and past relevant work. The ALJ then specifically stated:
I want you to assume that, because of the medically documented
impairments in this record, the individual can sit, stand, walk, lift, carry,
push and pull without impairment-caused limitation, but the individual does
have non-exertional limitations related to the seizure disorder. And so, this
individual cannot work at heights that are unprotected; cannot work around
hazardous machinery; cannot work on large open bodies of water; cannot
operate automotive equipment. It’s the typical seizure restrictions.
(R. 119). This hypothetical clearly contained Moore’s restrictions relating to his
seizure disorder and was designed to elicit testimony as to whether jobs existed
that Moore could perform. Further, the VE sat through the entire hearing, and thus
heard all of the testimony, including Moore’s testimony about the frequency of his
seizures as well as his other reported symptoms of back pain and vision
impairment. (R. 83). The VE testified that based on Moore’s seizure disorder, that
Moore could return to his previous work as a clean-up worker, and also explained
why Moore’s other past work would be inappropriate: “I think the others would be
ruled out either due to the hazardous machinery or working at heights.” (R. 119).
Moreover, the VE explicitly accounted for the way in which Moore had previously
performed his job as a clean-up worker: “He’s worked as a—it’s classified as a
clean-up worker, basically collecting trash as he’s indicated. […] He indicated that
he did it at—or performed it at the light level, but typically would be medium but
can be performed at light.” (R. 118).
In short, the ALJ and VE clearly took into account Moore’s documented
limitations in making an assessment of Moore’s ability. Therefore, substantial
evidence supports the ALJ’s assessment that Moore could return to his past work
as a clean-up worker.
4. The ALJ stated adequate reasons for discrediting Moore’s testimony
Moore alleges that the reasons given by the ALJ for finding him not credible
are inadequate, but provides no rationale or explanation for these allegations.
Where the ALJ discredits subjective testimony, he must “articulate explicit and
express reasons for doing so.” Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir.
2002)(per curiam). Moreover, “a clearly articulated credibility finding with
substantial supporting evidence in the record will not be disturbed by a reviewing
court.” Foote v. Chater, 67 F.3d 1553, 1562 (11th Cir. 1995) (per curiam). A
failure to provide articulated reasons, however, requires that the testimony be
accepted as true. Wilson, 284 F.3d at 1225 (citing Cannon v. Bowen, 858 F.2d
1541, 1545 (11th Cir. 1988)).
Here, the ALJ found that the medical records did not support Moore’s
subjective claims of the frequency of his seizures or a finding of disability relating
to vision impairment, back pain, or obesity. (R. 69). With respect to Moore’s
claims of the frequency of his seizures, the ALJ based his credibility determination
upon the medical records, finding that Moore’s testimony about the frequency of
his seizures was inconsistent with the statements he made to medical practitioners.
(R. 72–73, 353–55, 363). The ALJ also challenged Moore’s credibility with respect
to the medication Moore used to alleviate his symptoms. The ALJ referenced
numerous medical records that found that Moore had less than the therapeutic
range of medication in his blood tests and noted the discrepancies between
Moore’s statements that he never missed a dosage and pharmaceutical records
indicating the opposite. (R. 73, 333, 339). Next, the ALJ noted that even though
Moore is attempting to demonstrate that he is disabled as a result of back problems,
Moore did not allege any physical limitations at his hearing and the “medical
records show a history of lumbago, but do not indicate any underlying back
impairment.” (R. 69). Finally, the ALJ also noted that Moore’s impaired vision
was self-reported as corrected when he wore his reading glasses. (R. 69).
Based on the court’s review of the record, it is readily apparent that the ALJ
thoroughly recounted Moore’s medical records and pointed to various examples
where Moore’s subjective testimony contradicted his medical records. (R. 72–73).
Accordingly, the court concludes that the ALJ clearly articulated his reasons for
finding Moore not credible. See, Wilson v. Barnhart, 284 F.3d at 1226 (noting that
the “ALJ made a reasonable decision to reject [the claimant’s] subjective
testimony, articulating, in detail, the contrary evidence as his reasons for doing
Based on the foregoing, the court concludes that the ALJ’s determination
that Moore is not disabled and can perform his past relevant work 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 18th day of September, 2015.
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE
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