Moon v. Social Security Administration, Commissioner

Filing 13

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 08/31/12. (CVA)

FILED
2012 Aug-31 PM 02:48
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
JOSH WAYNE MOON,
Plaintiff,
vs.
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL
SECURITY
ADMINISTRATION,
Defendant.

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Civil Action Number
5:11-cv-2536-AKK

MEMORANDUM OPINION
Plaintiff Josh Wayne Moon (“Moon”) 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’s
(“ALJ”) decision as related solely to Listing 12.02(C) - which has become the
decision of the Commissioner - is not supported by substantial evidence.
Therefore, for the reasons elaborated herein, the court will REVERSE and
REMAND the decision denying benefits for the ALJ to consider the evidence and
reach a disability determination based on the total record.

Page 1 of 22

I. Procedural History
Moon filed his applications for Title II child’s disability insurance benefits
and Title XVI Supplemental Security Income on May 5, 2009, alleging a disability
onset date of August 31, 2007. (R. 108-112). Moon alleges that he is unable to
work due to Tourette’s Syndrome, depression, anxiety, and “leg problems.” (R.
128). After the SSA denied his applications on August 17, 2009, (R. 79-85),
Moon requested a hearing on September 27, 2009, (R. 94). At the time of the
hearing on September 1, 2010, (R. 42), Moon was 24 years old, see R. 16, had a
high school diploma, (R. 45), and no past relevant work, (R. 25, 70-71).1 Moon
has not engaged in substantial gainful activity since August 31, 2007. (R. 16).
The ALJ denied Moon’s claims on November 22, 2010, (R. 11-27), which
became the final decision of the Commissioner when the Appeals Council refused
to grant review, (R. 1). Moon then filed this action pursuant to section 1631 of the
Act, 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.

1

Moon’s only vocational experience was as a welder for approximately three weeks. (R.

70-71).
Page 2 of 22

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.
Page 3 of 22

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 impairments 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). 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
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

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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).
IV. The ALJ’s Decision
The ALJ initially determined that Moon had not engaged in substantial
gainful activity since his alleged onset date, and therefore met Step One. (R. 16).
Next, the ALJ acknowledged that Moon’s severe impairments of Tourette’s
Syndrome, lumbar radiculopathy, bilateral knee pain, depression, history of
attention deficit hyperactivity disorder, and status post fracture of the left
mandible met Step Two. Id. The ALJ then proceeded to the next step, where he
found that Moon did not satisfy Step Three since he “does not have an impairment
or combination of impairments that meets or medically equals” Listing 12.02(B)
and (C). (R. 20-21). 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 Moon
has the residual functional capacity [RFC] to perform medium work
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[ ]. The claimant has no lifting limitations. However, for safety
reasons, he cannot work on ladders, ropes or scaffolds and he cannot
work around unprotected heights. He can occasionally work around
hazardous machinery. He can perform jobs with simple instructions,
but not with detailed or complex instructions. He can concentrate for
eight hours during an eight hour workday for two hours at one time.
He should be paid by the hour and he cannot have contact with the
public. He should have no problems with supervision. He should
deal with things and not people and work in an isolated work setting.
Any changes in the work environment should be gradually introduced
and well explained. Changes should occur on an infrequent basis.
He can handle low stress jobs with an SVP of 2 or less involving
simple work related decisions.
(R. 21). The ALJ found that Moon had no past relevant work. (R. 25). Therefore,
the ALJ proceeded to Step Five where he considered Moon’s age, education,
experience, and RFC, and determined that there are “jobs that exist in significant
numbers in the national economy that [Moon] can perform.” (R. 26). Because the
ALJ answered Step Five in the negative, the ALJ determined that Moon is not
disabled. (R. 27); see also McDaniel, 800 F.2d at 1030. It is this finding that
Moon challenges.
V. Analysis
Moon contends that the ALJ committed reversible error by failing to (1)
give controlling weight to Moon’s treating physician Dr. Chris LaGanke (“Dr.
LaGanke”), (2) present a hypothetical that included all of Moon’s non-exertional
limitations based on Dr. Eugene Fleece’s (“Dr. Fleece”) assessment, and (3)
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determine that Moon met Listing 12.02(C). Doc. 9 at 12-34. For the reasons
stated below, this court finds that the ALJ’s finding as related to Listing 12.02(C)
is not supported by substantial evidence and that the ALJ applied improper
standards.
A.

The ALJ properly considered Moon’s treating physician Dr. LaGanke.
In light of Moon’s contention that the ALJ should have accepted Dr.

LaGanke’s opinion, the court must review Dr. LaGanke’s entire treatment notes.
In that regard, as related to Moon’s neurological disorders, the treatment records
reveal that on February 1, 2007, Moon visited Dr. LaGanke for an evaluation of
Tourette’s Syndrome. (R. 251).2 Moon’s mother reported that Moon has “rage
episodes” and Moon relayed that his Tourette’s prevents him from “holding down
a job.” Id. A mental status exam found Moon alert and oriented with normal
attention, and as having intact name repetition and recent and remote recall. (R.
252). A motor exam revealed normal strength and tone in all four extremities and
no abnormal movements. Id. After diagnosing Moon with Tourette’s Syndrome
and depression, Dr. LaGanke prescribed Haldol to help control the Tourette’s
Syndrome tics and Effexor for the depression. Id.

2

Moon also visited Dr. LaGanke on April 28, 2003, (R. 245), October 3, 2003, (R. 247),
and March 3, 2004, (R. 249).
Page 7 of 22

The Tourette’s Syndrome medication proved effective because when Moon
visited Dr. LaGanke four months later, on June 22, 2007, Moon reported that he
“had one bad spell of a tic since his last visit. Otherwise he is doing very well. He
is tolerating his medications well.” (R. 253). However, when Moon returned on
January 3, 2008, Moon reported that he was out of Haldol, having “increased tics,”
and “no money or insurance and no one wants to help.” (R. 255). The
examination revealed Moon as alert and oriented and as having intact naming
repetition and recent and remote recall. (R. 256). Dr. LaGanke prescribed Prozac
for Moon’s depression, Clonidine to treat anxiety, and a smoking cessation
assistance program. Id.
The next visit occurred four months later, on May 20, 2008, when Moon
and his father visited Dr. LaGanke. (R. 258). Moon complained that his Tourette’s
was worse and although Moon’s mental status and motor exams showed no
changes, Moon reported “need[ing] a stronger nerve pill” because “class is now
over and I can’t find a good job. . . I need some Lortab.” Id. Moreover, when Dr.
LaGanke asked Moon whether Moon took his medications properly, Moon
answered vaguely and that “[m]ama always lays them out for me to take.” Id.
Apparently, Dr. LaGanke touched a nerve when he advised Moon that Moon
“needed to prepare his own medications” because Moon left the room and refused
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to put up with the “GD disrespectful doctor.” (R. 259). Although Moon and his
father returned and apologized to Dr. LaGanke, they left abruptly again after
Moon refused to sign a pain contract because Moon felt the contract would
prevent him from getting pain medication from another clinic. Id.
Moon’s next visit to Dr. LaGanke occurred 18 months later when, on
November 19, 2009, Moon presented with complaints of depression, paranoia
from “people” purportedly taking pictures of him, and problems with Tourette’s.
(R. 314). Moon had no changes to his mental status and motor exams and Dr.
LaGanke prescribed Zyprexa, which is used to treat bipolar disorders and
schizophrenia, and Paxil for depression and panic disorders. (R. 315).
Seven months later, on June 29, 2010, Dr. LaGanke again evaluated Moon
for depression, a lack of energy, and facial twitching. (R. 312). Moon reported
that he never filled the Zyprexa prescription, that he is bipolar, and would kill
himself if he “thought things were going to stay the same.” Id. Dr. LaGanke
noted that Moon was taking Clonidine, Klonopin, Paxil, and Luvox (a medication
for obsessive compulsive disorder). Id. The record is silent on whether Dr.
LaGanke prescribed any medication for Moon during this visit.
Finally, on September 17, 2010, at the request of Moon’s lawyer, Dr.
LaGanke completed a Medical Assessment of Organic Brain Disorder. (R. 316).
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The document consisted of a form for Dr. LaGanke to check off various issues that
he believed applied to Moon. Based on Dr. LaGanke’s check marks, Moon’s
symptoms include pervasive loss of interest, decreased energy, thoughts of
suicidal ideations, blunt/flat/inappropriate affect, feelings of guilt and
worthlessness, persistent mood disturbance, paranoia, hallucinations or delusions,
pathologically inappropriate suspiciousness or hostility, sleep disturbance,
emotional withdrawal, bipolar syndrome, and a persistent irrational fear resulting
in a compelling desire to avoid dreaded objects. (R. 316-17). On the section
regarding Moon’s mental ability and aptitude for unskilled work, Dr. LaGanke
checked that Moon (1) had limited but satisfactory ability to remember work-like
procedures, understand and carry out very short and simple instructions, perform
at a consistent pace, ask questions or request assistance, and a general awareness
of normal hazards, (2) could not meet competitive standards in ability to maintain
regular attendance, punctuality, and attention for two hour segments, sustain an
ordinary routine without supervision, work in coordination with or proximity to
others without unduly being distracted, and make simple work-related decisions,
and (3) had no useful ability to complete a normal workday/workweek without
interruptions from psychologically based symptoms, accept instructions and
respond appropriately to criticism from supervisors, get along with co-workers or
Page 10 of 22

peers without unduly distracting them or exhibiting behavioral extremes, respond
appropriately to changes in a routine work setting, and deal with normal work
stress.3 (R. 317). Next, regarding Moon’s mental ability and aptitude for semiskilled and skilled work, Dr. LaGanke checked that Moon (1) can not meet
competitive standards in his ability to understand, remember, and carry out
detailed instructions, and (2) had no useful ability to set realistic goals or
independently make plans, and deal with the stress of semi-skilled or skilled work.
Id. Dr. LaGanke supported his finding by commenting that Moon has “major
depression with suicidal thoughs” and is “psychotic with paranoia.” Id.
Regarding Moon’s mental ability and aptitude for “particular types of jobs,” Dr.
LaGanke checked that Moon was limited, but with satisfactory adherence to basic
standards of neatness and cleanliness, but without a useful ability to interact with
the general public, maintain socially appropriate behavior, travel to unfamiliar
places, and use public transportation. Id. Finally, Dr. LaGanke checked also that
Moon had no or mild restriction of activities of daily living, extreme limitation in
maintaining social functioning, marked limitation in maintaining concentration,
persistence or pace, would have “four or more (near constant)” episodes of

3

Dr. LaGanke commented further than Moon suffered from “bipolar disorder which
affects energy, concentration, punctuality, and attendance. In addition, he has psychosis which
presently is making him paranoid and confined to home.” (R. 318).
Page 11 of 22

decompensation within a 12 month period, each of at least two weeks in duration,
and would miss work more than four days each month because of his impairments.
Id.
Moon contends that Dr. LaGanke’s treatment notes and assessment support
his assertion that he is disabled and that the ALJ erred when he rejected Dr.
LaGanke’s findings. Doc. 12 at 7-10. Generally, a treating physician’s opinion is
entitled to considerable weight if it is supported by and consistent with the record
evidence. 20 C.F.R. § 404.1527(d)(2), (3), and (4). Here, however, as the ALJ
stated, the ALJ “considered the attorney generated check form submitted and
completed by Dr. LaGanke at the insistence of the claimant’s attorney” and found
that the
attorney generated check form is not part of Dr. LaGanke’s treatment
nor is there any indication throughout Dr. LaGanke’s treating records
that he ever discussed work limitations or limitations as severe. Most
importantly, in no way do the severity of these check marks by Dr.
LaGanke are confirmed by his own treating records. Dr. LaGanke
noted the claimant was still smoking a pack a day of cigarettes and
drinking two 2-liter Dr. Peppers daily. He was driving a car, and
driving a car is consistent with the ability to perform sequential
postural maneuvers to enter and exit a vehicle, with sitting, with good
use of both hands, with operating some hand and foot controls, with
good ability to maintain attention and concentration and with the
ability to exercise judgment. [ ] Dr. LaGanke informed the claimant
he needed to take care of his own medications and not expect his
mother to [do] that for him so it would be obvious that Dr. LaGanke
believed the claimant had no limitation in this area. He also needed
to talk for himself instead of allowing his dad to do the talking. Most
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importantly, when Dr. LaGanke spoke frankly with the claimant, the
claimant got up and left the room stating he would not put up with a
‘disrespectful doctor.’ The claimant refused to sign Dr. LaGanke’s
pain medication contract. [ ] There are simply no mental health
notations from Dr. LaGanke supporting his check form assessment
and it is given very little weight. It would appear very strongly that
the claimant’s attitude is his biggest difficulty.
(R. 19). In other words, the ALJ found that Dr. LaGanke’s own treatment notes
belie the check form assessment he completed and, as a result, gave it “very little
weight.” Id.
Each of the four grounds Moon raises for his contention that the ALJ
committed error lacks merit. First, as to Moon’s contention that the ALJ
discredited Dr. LaGanke’s opinion “because it was procured by Mr. Moon’s
attorney,” doc. 9 at 14, while the ALJ in fact described the assessment as “attorney
generated,” the ALJ rejected it because he found it inconsistent with Dr.
LaGanke’s treatment notes. Second, as to Moon’s contention that the ALJ erred
by finding that Dr. LaGanke based his mental health assessment on Moon’s
subjective statements instead of objective clinical data, doc. 9 at 14-18, indeed, the
ALJ found that Dr. LaGanke’s assessment was not supported by his treatment
records that noted that Moon still smokes, has the “postural maneuvers” to enter
and exit a vehicle, good use of hands and feet, ability to operate foot controls, and
attention and concentration required to drive a vehicle. (R. 19). The court finds

Page 13 of 22

no error in the ALJ’s decision to reject Dr. LaGanke’s assessment. As the ALJ
found, Dr. LaGanke’s treatment notes represented that Moon’s mental status and
motor exams were within normal ranges, including his concentration, memory, and
muscle strength and tone. Furthermore, Dr. LaGranke recorded no episodes of
decompensation 4 over the seven year period he treated Moon. Yet, incredibly, Dr.
LaGanke checked the box in the assessment that such episodes would occur four
or more times each year, and commented further of their “near constant”
occurrence. There is simply no way to reconcile this finding with the actual
treatment notes, especially in light of the fact that Dr. LaGanke never evaluated
Moon for four or more times each year. Furthermore, as the ALJ found, Dr.
LaGanke’s suggestion to Moon to manage his own medications suggests that Dr.
LaGanke believes Moon can, in fact, sustain a routine and understand and carry
out detailed instructions. In other words, while this court acknowledges that
Moon has severe impairments, Dr. LaGanke’s treatment notes do not support
4

Episodes of decompensation are exacerbations or temporary increases in symptoms or
signs accompanied by a loss of adaptive functioning, as manifested by difficulties in performing
activities of daily living, maintaining social relationships, or maintaining concentration,
persistence or pace. Episodes of decompensation may be demonstrated by an exacerbation of
symptoms or signs that would ordinarily require increased treatment or a less stressful situation
(or combination of the two). Episodes of decompensation may be inferred from medical records
showing significant alteration in medication; or documentation of the need for a more structured
psychological support system (e.g., hospitalizations, placement in a halfway house, or a highly
structured and directing household); or other relevant information in the record about the
existence, severity, and duration of the episode. 20 C.F.R. Part 404, Subpart P, Appendix I,
12.00 Mental Disorders, C.4.; see also R. 319.
Page 14 of 22

sufficiently the assessment form he completed stating that Moon is unable to
sustain the normal routines of a regular work week.
For his third point of error, Moon challenges the ALJ’s determination that
an inconsistency existed between Dr. LaGanke’s opinion that Moon had
experienced four or more episodes of decompensation and Dr. LaGanke’s
treatment notes. Doc. 9 at 14, 18. Moon maintains that Dr. LaGanke’s treatment
notes actually demonstrate that Moon experienced episodes of decompensation
because Dr. LaGanke changed Moon’s medications on three occasions (February
1, 2007, January 3, 2008, and November 9, 2009) and because Moon experienced
increased tics, paranoia, and depression. Doc. 9 at 19. This argument is
unpersuasive because, despite changing Moon’s medications, Dr. LaGanke opined
consistently that he found Moon alert and oriented and with a normal range mental
status, including concentration and memory. Moreover, the record demonstrates
that Moon maintained activities of daily living throughout the period Dr. LaGanke
treated him, such as taking out the garbage, (R. 59, 65), cooking in the microwave,
(R. 48), driving to the store, (R. 47, 60, 69), helping his father feed the chickens,
mowing an acre of lawn using a riding lawn mower, (R. 60, see R. 55), and
hanging up his clothes when reminded, (R. 65). In other words, the treatment
notes do not support Moon’s contentions.
Page 15 of 22

Finally, Moon contends also that the ALJ should have contacted Dr.
LaGanke for clarification of his opinion. Doc. 9 at 20. The court disagrees
because Dr. LaGanke’s records provide a sufficient “longitudinal picture of
[Moon’s] impairment[s]” for the ALJ to properly determine whether Moon’s
Tourette’s Syndrome and depression were disabling. See 20 C.F.R.
404.1527(d)(2)(i). Furthermore, as discussed above, the ALJ correctly determined
that Dr. LaGanke’s assessment is internally inconsistent with his treatment notes.
Therefore, the court finds that the ALJ committed no reversible error by failing to
seek clarification of Dr. LaGanke’s opinion, and that the ALJ’s decision to reject
Dr. LaGanke’s opinion is supported by substantial evidence.
B.

The ALJ’s Hypothetical Included Moon’s Severe Impairments.
As an additional ground of error, Moon contends that the ALJ failed to

“pose a complete hypothetical question that encompassed all of Mr. Moon’s nonexertional limitations.” Doc. 9, 21. Specifically, Moon contends that the ALJ
gave Dr. Fleece’s opinion “significant weight,” (R. 24), but failed to include in the
hypothetical to the VE Dr. Fleece’s opinion that “when learning simple, new,
repetitive tasks, [Moon] may need greater than average supervision, but after
completing routine training, [Moon] could function adequately with only average
oversight,” and that “[Moon’s] tics may occasionally distract co-workers but not to
Page 16 of 22

the point of significant lost production,” (R. 301). In other words, Moon contends
that because the ALJ gave “significant weight” to Dr. Fleece’s opinion, the ALJ
was required to include every limitation Dr. Fleece prescribed. Along these lines,
Moon asserts further that the ALJ erred when he failed to include Moon’s nonsevere impairments’ limitations, such as “stress limitations” in the hypothetical.
Doc. 9 at 25-27.
The challenged hypothetical reads:
ALJ I would like for you to assume a hypothetical individual with
the age, education, doesn’t appear that he has a work
background. I’d like for you to assume further that there are no
lifting restrictions, lifting or carrying restrictions. I’d like for
you to assume safety precautions for such a hypothetical
individual. Should not work on ladders, ropes, or scaffolds.
Should not work on unprotected heights. Sounds like he uses a
driving lawn mower sometimes, so I would consider it a
hazardous machinery, so we’ll say occasionally can be around
hazardous machinery. There’s no limitation [on] upper
extremities in the ability to [use] gross, handle, or fine
manipulation. Hypothetical individual can understand,
remember, and carry out short, simple instructions. No detailed
instructions. No complex instructions. Can concentrate for
two-hour periods at a time across an eight-hour work day with
regular breaks. Should be paid by the hour as opposed to
piecemeal. And he should not have any contact with the
public. No problems with supervisors. Hypothetical individual
should deal with things as opposed to people. Any work
performed should be essentially on an isolated basis. Any
changes in the work schedule should be gradually introduce[d],
well explained, and infrequent. Hypothetical individual can
make short range plans, but would need help on long range
planning. Hypothetical individual should be limited to a low
Page 17 of 22

stress job which I’ll define as SVP: 2 or less. If we have such a
hypothetical individual, could you offer an opinion whether the
hypothetical individual could perform any type of job either in
the region on the nation?
VE

I would say yes.

(R. 71-72).
Moon’s arguments are unpersuasive for several reasons. First, “[a]
claimant’s [RFC] is a matter reserved for the ALJ’s determination, and while a
physician’s opinion on the matter will be considered it is not dispositive.” Beegle
v. Soc. Sec. Admin., Com’r, No. 11-15565, slip op. at *2 (July 23, 2012); see also
20 C.F.R. §§ 404.1545(a) and 404.1527(d)(2). Therefore, to the extent that the
ALJ rejected Dr. Fleece’s limitations, the ALJ committed no reversible error.
Second, as it relates to Moon’s contention that the ALJ failed to include Dr.
Fleece’s opinion that Moon may need greater supervision when learning simple,
new, repetitive tasks, Moon overlooks that even Dr. Fleece opined that Moon may
require greater training and declined to designate it as an obligatory limitation.
Third, the failure to include Dr. Fleece’s limitation regarding Moon’s tics is
immaterial because the ALJ’s hypothetical stated that Moon should work on an
isolated basis with objects instead of people. Finally, the evidence simply does
not support Moon’s contention that he “assumed the ALJ found Mr. Moon’s
impairments other than Tourette’s Syndrome to be non-severe” and that the ALJ
Page 18 of 22

failed to consider in his hypothetical Moon’s stress. In fact, the ALJ made clear
that Moon’s severe impairments included Tourette’s Syndrome and lumbar
radiculopathy, bilateral knee pain, depression, history of attention deficit
hyperactivity disorder, and status post fracture of the left mandible with repair in
2003. (R. 16). Furthermore, the ALJ accounted for Moon’s stress, the only
limitation from the non-severe impairments Moon described, in his hypothetical
by limiting Moon to a low stress, unskilled position. In other words, where, as
here, the ALJ’s hypothetical question “comprises all of the claimant’s
impairments,” the ALJ committed no error and the VE’s testimony “constitute[s]
substantial evidence.” Wilson v. Barnhart, 284, F.3d 1219, 1227 (11th Cir. 2002)
(citation omitted).
C.

The ALJ improperly determined that Moon failed to meet Listing 12.02(C).
Lastly, Moon contends that the ALJ failed to properly evaluate whether

Moon has an impairment that meets or medically equals Listing 12.02(C).5 Doc. 9
5

Listing 12.02(C) requires

Medically documented history of a chronic organic mental disorder of at least 2
years’ duration that has caused more than a minimal limitation of ability to do
basic work activities, with symptoms or signs currently attenuated by medication
or psychosocial support, and one of the following:
1. Repeated episodes of decompensation, each of extended duration; or
2. A residual disease process that has resulted in such marginal adjustment that
even a minimal increase in mental demands or change in the environment would
be predicted to cause the individual to decompensate; or
3. Current history of 1 or more years’ inability to function outside a highly
Page 19 of 22

at 27-33. The full extent of the ALJ’s discussion regarding Listing 12.02(C) is
that he “considered whether the ‘paragraph C’ criteria are satisfied. In this case,
the evidence fails to establish the presence of the ‘paragraph C’ criteria.” (R. 21).
Unfortunately, the ALJ’s opinion contains no meaningful reference to the medical
record and fails to explain sufficiently the ALJ’s reasoning, making review at this
juncture inappropriate. Lawton v. Comm’r, 431 F. App’x 830, 832 (11th Cir.
2011) (“[W]e will reverse where the ALJ fails to apply the correct law or to
provide us with sufficient reasoning to allow us to determine that the proper legal
analysis has been conducted.”), citing Keeton v. Dep’t of Health & Human Servs,
21 F.3d 1064, 1066 (11th Cir. 1994). As one district judge who faced a similar
situation put it:
Here, the hearing officer did not justify his findings with any
evidence at all beyond the lack of hospitalizations. The paragraph C
criteria have three independent factors, each of which could result in
a finding of disability for [the claimant]. The hearing officer
addressed only one of these factors, and did not include any evidence
or discussion of the other factors. Even where the hearing officer’s
ultimate conclusion is potentially supportable, the Court ought not
affirm a decision where there is a reasonable basis for doubting
whether the appropriate legal standards were applied. [ ]. As a result,
the Court remands to the administrative agency the issue of whether
the record evidence supports the Listing 12.02(C) criteria.”).

supportive living arrangement with an indication of continued need for such an
arrangement.
Page 20 of 22

Aregano v. Astrue, No. 10-cv-00159, slip op. at 10 (N.D.N.Y. July 31, 2012).
Based on this court’s review of the medical evidence, the court cannot
determine whether the ALJ’s opinion that Moon does not meet the Listing
12.02(C) criteria is supported by substantial evidence because the ALJ failed to
provide adequate reasoning or to substantiate his finding. For example, while the
ALJ references “the evidence,” (R. 21), he does not identify the medical evidence
he relied on to conclude that Moon failed to meet the 12.02(C) criteria. Although
the court is not charged with reconsidering the facts, the ALJ’s opinion must
nonetheless sufficiently reflect full consideration of the facts. Based on this
record, this court cannot ascertain whether substantial evidence supports the ALJ’s
decision as it relates to Listing 12.02(C). Therefore, to maintain the integrity of
this court’s judicial review, remand is warranted for the ALJ to make a disability
determination regarding Listing 12.02(C) that contains sufficient explanations and
is substantiated by the objective medical evidence.6
VI. Conclusion
Based on the foregoing, the court concludes that the ALJ’s determination
that Moon is not disabled is not based on substantial evidence. Therefore, the
6

Dr. Fleece noted that there was “[i]nsufficient evidence to establish the presence of the
‘C’ criteria,” (R. 296), but failed to explain his opinion on this issue in Part IV, as requested, see
(R. 297). If the ALJ agrees, the ALJ should develop the record so that he can substantiate his
findings. 20 C.F.R. § 404.1512(d), (e), and (f).
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Commissioner’s final decision is REVERSED and REMANDED for the ALJ to
make a disability determination as it relates to whether Moon meets Listing
12.02(C), or any other issue that the ALJ determines warrants review. A separate
order in accordance with the memorandum of decision will be entered.
Done the 31st day of August, 2012.

________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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