Moore v. Social Security Administration, Commissioner

Filing 10

MEMORANDUM OPINION AND ORDER DISMISSING CASE that the decision of the Commissioner is AFFIRMED and costs are taxed against claimant as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 3/18/2013. (AHI )

FILED
2013 Mar-18 PM 03:35
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
JAMES EARL MOORE,
Claimant,
vs.
CAROLYN W. COLVIN, Acting
Commissioner, Social Security
Administration,
Defendant.

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Civil Action No. CV-12-S-1792-NE

MEMORANDUM OPINION AND ORDER
Claimant, James Earl Moore, commenced this action on May 4, 2012, pursuant
to 42 U.S.C. § 405(g), seeking judicial review of a final adverse decision of the
Commissioner, affirming the decision of the Administrative Law Judge (“ALJ”), and
thereby denying his claim for a period of disability, disability insurance, and
supplemental security income benefits. For the reasons stated herein, the court finds
that the Commissioner’s ruling is due to be affirmed.
The court’s role in reviewing claims brought under the Social Security Act is
a narrow one. The scope of review is limited to determining whether there is
substantial evidence in the record as a whole to support the findings of the
Commissioner, and whether correct legal standards were applied. See Lamb v.
Bowen, 847 F.2d 698, 701 (11th Cir. 1988); Tieniber v. Heckler, 720 F.2d 1251, 1253

(11th Cir. 1983).
Claimant contends that the Commissioner’s decision is neither supported by
substantial evidence nor in accordance with applicable legal standards. Specifically,
claimant asserts that the ALJ failed to make individualized determinations about
claimant’s disability status, and improperly evaluated claimant’s subjective
complaints of pain and his credibility. Upon review of the record, the court concludes
that these contentions are without merit.
Claimant’s first contention is that the ALJ “failed to make an ‘individualized
determinations [sic] based on evidence adduced at a hearing.’”1 Claimant cites 42
U.S.C. § 423(d)(5)(A), which states:
An individual shall not be considered to be under a disability
unless he furnishes such medical and other evidence of the existence
thereof as the Commissioner of Social Security may require. An
individual’s statement as to pain or other symptoms shall not alone be
conclusive evidence of disability as defined in this section; there must
be medical signs and findings, established by medically acceptable
clinical or laboratory diagnostic techniques, which show the existence
of a medical impairment that results from anatomical, physiological, or
psychological abnormalities which could reasonably be expected to
produce the pain or other symptoms alleged and which, when considered
with all evidence required to be furnished under this paragraph
(including statements of the individual or his physician as to the
intensity and persistence of such pain or other symptoms which may
reasonably be accepted as consistent with the medical signs and
findings), would lead to a conclusion that the individual is under a
disability. Objective medical evidence of pain or other symptoms
established by medically acceptable clinical or laboratory techniques
1

Doc. no. 7 (claimant’s brief), at 14.
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(for example, deteriorating nerve or muscle tissue) must be considered
in reaching a conclusion as to whether the individual is under a
disability. Any non-Federal hospital, clinic, laboratory, or other
provider of medical services, or physician not in the employ of the
Federal Government, which supplies medical evidence required and
requested by the Commissioner of Social Security under this paragraph
shall be entitled to payment from the Commissioner of Social Security
for the reasonable cost of providing such evidence.
Claimant also relies upon the Supreme Court’s decision in Heckler v.
Campbell, 461 U.S. 458 (1983).

There, the Supreme Court held that the

Commissioner’s use of the Medical-Vocational Guidelines (or “Grids”) to determine
disability was consistent with the requirements of the Social Security Act. Id. at 467.
In reaching that holding, the Court acknowledged that “the statutory scheme
contemplates that disability hearings will be individualized determinations based on
evidence adduced at a hearing.” Id. (citing 42 U.S.C. § 423(d)(2)(A);2 42 U.S.C. §
405(b) (1976 ed., Supp. V)) (emphasis supplied). Even so, the Court found that the
2

42 U.S.C. § 423(d)(2)(A) provides:

An individual shall be determined to be under a disability only if his physical
or mental impairment or impairments are of such severity that he is not only unable
to do his previous work but cannot, considering his age, education, and work
experience, engage in any other kind of substantial gainful work which exists in the
national economy, regardless of whether such work exists in the immediate area in
which he lives, or whether a specific job vacancy exists for him, or whether he would
be hired if he applied for work. For purposes of the preceding sentence (with respect
to any individual), “work which exists in the national economy” means work which
exists in significant numbers either in the region where such individual lives or in
several regions of the country.
42 U.S.C. § 405(b) provides, in general terms, that the disability determination should be based upon
the evidence presented during the administrative proceedings. See 42 U.S.C. § 405(b).
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Social Security Administration still could “rely on its rulemaking authority to
determine issues that do not require case-by-case consideration.” Id. See also Broz
v. Heckler, 711 F.2d 957, 958-59 (11th Cir. 1983) (recognizing that the Social
Security Act “properly requires the Secretary to determine a claimant’s individual
capabilities through case-by-case adjudication,” but nonetheless holding that the
Commissioner “may rely on regulations promulgated through rulemaking in
determining the types of jobs available in the national market”).
Claimant asserts that the ALJ violated the requirement of an “individualized
determination” by relying upon the testimony of Dr. Allan Levine, the medical expert.
Dr. Levine testified during the administrative hearing that, based on what he “would
normally expect” from a patient with claimant’s objective findings, claimant should
be able to perform a reduced range of light work.3 The ALJ assigned Dr. Levine’s
residual functional capacity assessment “significant weight.”4 Claimant asserts that
Dr. Levine’s lone statement about what he would normally expect indicates that Dr.
Levine did not assess claimant’s individual situation, but instead made generalized
statements about what might be expected in a similar situation. The record simply
does not support that conclusion. Dr. Levine reviewed claimant’s medical records,
and he questioned and observed claimant during the hearing. He formed his
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Tr. 70.

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Tr. 24.
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conclusions about claimant’s residual functional capacity based on what he perceived
to be claimant’s own limitations, not on the limitations of a hypothetical individual.
Claimant also complaints that Dr. Levine’s testimony was based upon
“‘objective findings’ and not upon the actual pain suffered by” claimant.5 Claimant’s
argument is without merit. As is apparent from the very statute relied upon by
claimant, it is appropriate for the ALJ to consider both claimant’s subjective
complaints of pain and the objective medical evidence in the record. See 42 U.S.C.
§ 423(d)(5)(A) (“Objective medical evidence of pain or other symptoms established
by medically acceptable clinical or laboratory techniques (for example, deteriorating
nerve or muscle tissue) must be considered in reaching a conclusion as to whether the
individual is under a disability.”). See also Edwards v. Sullivan, 937 F. 2d 580, 584
(11th Cir. 1991) (quoting Landry v. Heckler, 782 F.2d 1551, 1553 (11th Cir. 1986))
(“To demonstrate that pain renders him disabled, claimant must “produce ‘evidence
of an underlying medical condition and (1) objective medical evidence that confirms
the severity of the alleged pain arising from that condition or (2) that the objectively
determined medical condition is of such severity that it can be reasonably expected
to give rise to the alleged pain.’”).
Claimant’s next argument is that the ALJ improperly evaluated his credibility.
Under Eleventh Circuit law, “[a]fter considering a claimant’s complaints of pain, the
5

Doc. no. 7, at 15.
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ALJ may reject them as not creditable, and that determination will be reviewed for
substantial evidence.” Marbury v. Sullivan, 957 F.2d 837, 839 (11th Cir. 1992) (citing
Wilson v. Heckler, 734 F.2d 513, 517 (11th Cir. 1984)) (alteration supplied). If an
ALJ discredits subjective testimony on pain, “he must articulate explicit and adequate
reasons.” Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987) (citing Jones v.
Bowen, 810 F.2d 1001, 1004 (11th Cir. 1986); MacGregor v. Bowen, 786 F.2d 1050,
1054 (11th Cir. 1986)).
The ALJ did not fully credit claimant’s complaints of disabling pain, reasoning
as follows:
The description of the symptoms and limitations which the
claimant has provided throughout the record has generally been
inconsistent and unpersuasive. Another factor influencing the
conclusions reached in this decision is the claimant’s generally
unpersuasive appearance and demeanor while he testified at the hearing.
It is emphasized that this observation is only one among many being
relied on in reaching a conclusion regarding credibility of the claimant’s
allegations and the claimant’s residual functional capacity, specifically
the testimony of Dr. Levine. For example, the claimant portrayed no
evidence of pain or discomfort while testifying at the hearing. While the
hearing was short lived and cannot be considered a conclusive indicator
of claimant’s overall level of pain on a day to day basis, the apparent
lack of discomfort during the hearing was given some slight weight in
reaching the conclusion regarding the credibility of the claimant’s
allegations and the claimant’s residual functional capacity.6
The ALJ also concluded that “the objective medical evidence does not support the

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Tr. 23.
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alleged level of severity” of claimant’s pain.7 For example, Dr. Parker’s treatment
records indicated that claimant was doing well after surgery, was responding well to
medications, and was not a candidate for additional surgical procedures.
Additionally, claimant declined Dr. Parker’s offer of epidural steroid injections,
which suggested that claimant’s pain was not as severe as alleged.8 The ALJ also
noted that claimant’s allegations of hand numbness and grip problems were
inconsistent with his activities, including driving his daughter to school daily, and
that claimant never complained of radiating neck pain to Dr. Parker, a specialist.9
Finally, the ALJ reasoned that claimant’s complaints were inconsistent with the
testimony of Dr. Levine, the Medical Expert.
The court finds that the ALJ adequately articulated his reasons for finding
claimant’s testimony to be less than fully credible, and the ALJ’s conclusions were
supported by substantial evidence of record.
Only one of claimant’s credibility arguments warrants more detailed
discussion. Claimant asserts that the ALJ improperly engaged in “sit and squirm
jurisprudence” when he made observations about claimant’s demeanor and apparent
lack of discomfort during the administrative hearing. The Eleventh Circuit has

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Id.

8

Id.

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Tr. 24.
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indeed condemned so-called “sit and squirm jurisprudence,” its term for the following
situation:
[T]he ALJ engaged in what had been condemned as “sit and
squirm” jurisprudence. In this approach, an ALJ who is not a medical
expert will subjectively arrive at an index of traits which he expects the
claimant to manifest at the hearing. If the claimant falls short of the
index, the claim is denied. As the court observed in Tyler [v.
Weinberger, 409 F. Supp. 776 (E.D. Va. 1976)], this approach
will not only result in unreliable conclusions when
observing claimants with honest intentions, but may
encourage claimants to manufacture convincing observable
manifestations of pain, or, worse yet, discourage them from
exercising the right to appear before an Administrative
Law Judge for fear that they may not appear to the
unexpert eye to be as bad as they feel.
409 F. Supp. at 789.
Freeman v. Schweiker, 681 F.2d 727, 731 (11th Cir. 1982).
The ALJ determined that claimant was not suffering pain of a
disabling nature because Wilson did not appear to be in great pain at the
hearing and no clinical findings supported Wilson’s testimony. 2 Rec.
at 22. The ALJ even concluded that Wilson did not need all the
medication that had been prescribed to him. Id. The ALJ thus
improperly engaged in “sit and squirm” jurisprudence and erroneously
required objective medical evidence to support Wilson’s testimony
about pain. Because of these errors, the case must be remanded to the
Secretary for further consideration under proper standards.
Wilson v. Heckler, 734 F.2d 513, 517-18 (11th Cir. 1984) (alterations in original).
See also Johns v. Bowen, 821 F.2d 551, 557 (11th Cir. 1987) (“The ALJ developed
his own indicia for measuring claimant’s pain, including drawn features, weight loss
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and muscle atrophy.

Thus, the ALJ improperly engaged in ‘sit and squirm’

jurisprudence . . . .”).
The court does not agree that the ALJ improperly engaged in “sit and squirm”
jurisprudence in this case. He did not subjectively arrive at a list of traits he expected
claimant to manifest during the hearing, and then make his determination of nondisability solely upon claimant’s failure to manifest those traits. To the contrary, the
ALJ properly considered his observations about claimant’s demeanor and appearance,
along with other factors, in evaluating claimant’s credibility. See Macia v. Bowen,
829 F.2d 1009, 1011 (11th Cir. 1987) (“The ALJ is not prohibited ‘from considering
the claimant’s appearance and demeanor during the hearing.’ . . . The ALJ did note
Macia’s demeanor but did not discredit Macia’s testimony solely on this basis.”)
(internal citation omitted); Social Security Ruling 96-7p, 1996 WL 374186, at *5 (“In
instances where the individual attends an administrative proceeding conducted by the
adjudicator, the adjudicator may also consider his or her own recorded observations
of the individual as part of the overall evaluation of the credibility of the individual’s
statements.”). The ALJ was careful to note that his personal observations received
only “some slight weight” in the decision-making process, and it is apparent that the
ALJ also relied upon other factors, including the consistency of claimant’s complaints
with the medical evidence and claimant’s daily activities.

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In accordance with the foregoing, the court concludes the ALJ’s decision was
based upon substantial evidence and in accordance with applicable legal standards.
Accordingly, the decision of the Commissioner is AFFIRMED. Costs are taxed
against claimant. The Clerk is directed to close this file.
DONE this 18th day of March, 2013.

______________________________
United States District Judge

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