Graham v. Social Security Administration, Commissioner
MEMORANDUM OPINION. Signed by Judge L Scott Coogler on 10/7/2014. (KAM, )
2014 Oct-07 AM 10:04
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
ROBERT EARL GRAHAM,
CAROLYN W. COLVIN,
Acting Commissioner of
MEMORANDUM OF OPINION
The plaintiff, Robert Earl Graham, appeals from the decision of the Acting
Commissioner of the Social Security Administration (“Commissioner”) denying his
application for Supplemental Security Income (“SSI”) and Disability Insurance
Benefits (“DIB”). Mr. Graham timely pursued and exhausted his administrative
remedies, and the decision of the Commissioner is ripe for review pursuant to 42
U.S.C. §§ 405(g) and 1383(c)(3).
Mr. Graham was forty-eight years old at the time of the Administrative Law
Judge’s (“ALJ”) decision. Although he repeated the tenth grade, Mr. Graham
completed the eleventh grade and was not enrolled in any special education classes.
(Tr. at 169, 411.) In the fifteen years before the alleged onset of his disability, Mr.
Graham was employed as an ice packer in a fish processing plant. (Tr. at 83, 170-71.)
Mr. Graham claims that he became disabled on May 27, 2007, due to leg pain
associated with poor circulation and seizures. (Tr. at 64-65, 68-69.)
The Social Security Administration has established a five-step sequential
evaluation process for determining whether an individual is disabled and thus eligible
for DIB or SSI. See 20 C.F.R. §§ 404.1520, 416.920; see also Doughty v. Apfel, 245
F.3d 1274, 1278 (11th Cir. 2001). The evaluator will follow the steps in order until
making a finding of either disabled or not disabled; if no finding is made, the analysis
will proceed to the next step. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The
first step requires the evaluator to determine whether the plaintiff is engaged in
substantial gainful activity (“SGA”). See id. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i).
If the plaintiff is engaged in SGA, the evaluator moves on to the next step.
The second step requires the evaluator to consider the combined severity of the
plaintiff’s medically determinable physical and mental impairments. See id. §§
404.1520(a)(4)(ii), 416.920(a)(4)(ii). An individual impairment or combination of
impairments that is not classified as “severe” and does not satisfy the durational
requirements set forth in 20 C.F.R. §§ 404.1509 and 416.909 will result in a finding
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of not disabled. See 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). The decision
depends on the medical evidence contained in the record. See Hart v. Finch, 440 F.2d
1340, 1341 (5th Cir. 1971) (concluding that “substantial medical evidence in the
record” adequately supported the finding that plaintiff was not disabled).
Similarly, the third step requires the evaluator to consider whether the
plaintiff’s impairment or combination of impairments meets or is medically equal to
the criteria of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. See
20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the criteria of a listed
impairment and the durational requirements set forth in 20 C.F.R. §§ 404.1509 and
416.909 are satisfied, the evaluator will make a finding of disabled. 20 C.F.R. §§
If the plaintiff’s impairment or combination of impairments does not meet or
medically equal a listed impairment, the evaluator must determine the plaintiff’s
residual functional capacity (“RFC”) before proceeding to the fourth step. See id. §§
404.1520(e), 416.920(e). The fourth step requires the evaluator to determine whether
the plaintiff has the RFC to perform the requirements of his past relevant work. See
id. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv).
If the plaintiff’s impairment or
combination of impairments does not prevent him from performing his past relevant
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work, the evaluator will make a finding of not disabled. See id.
The fifth and final step requires the evaluator to consider the plaintiff’s RFC,
age, education, and work experience in order to determine whether the plaintiff can
make an adjustment to other work. See id. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).
If the plaintiff can perform other work, the evaluator will find him not disabled. Id.;
see also 20 C.F.R. §§ 404.1520(g), 416.920(g). If the plaintiff cannot perform other
work, the evaluator will find him disabled.
20 C.F.R. §§ 404.1520(a)(4)(v),
404.1520(g), 416.920(a)(4)(v), 416.920(g).
Applying the sequential evaluation process, the ALJ determined that Mr.
Graham was insured through the date of her decision. (Tr. at 35.) She further
determined that Mr. Graham had not engaged in SGA since the alleged onset of his
disability. (Id.) According to the ALJ, Mr. Graham’s alcohol dependence, history of
alcohol withdrawal seizures, discrete peripheral neuropathy (probably alcohol related),
discrete cerebellar ataxia (alcohol related), anxiety and depression secondary to
alcohol dependence, and history of varicose veins are considered “severe” based on
the requirements set forth in the regulations. (Tr. at 35-36.) However, she found that
Mr. Graham did not have an impairment or combination of impairments that meets
or medically equals any of the listed impairments in 20 C.F.R. Part 404, Subpart P,
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Appendix 1. (Tr. at 36.) The ALJ did not find Mr. Graham’s allegations to be totally
credible, and she determined that Mr. Graham has the RFC to perform light work
with a sit/stand option but must refrain from climbing ladders, ropes, or scaffolds;
kneeling and crawling, although he can perform occasional crouching; and must avoid
exposure to unprotected heights and hazardous machinery. (Tr. at 39-40.)
According to the ALJ, Mr. Graham is unable to perform any of his past relevant
work. (Tr. at 54.) He is a “younger individual” with a “limited education,” as those
terms are defined by the regulations. (Tr. at 55.) The ALJ determined that
transferability of skills was “not an issue” because Mr. Graham’s past relevant work
is unskilled. (Id.) Although the ALJ found that Mr. Graham did not have the RFC to
perform the full range of light work, she nonetheless determined from testimony of a
vocational expert that there are a significant number of jobs in the national economy
that he is capable of performing, such as production assembly worker, auto packer,
and garment sorter. (Id.) The ALJ concluded her findings by stating that Mr. Graham
was not disabled. (Tr. at 56.)
II. Standard of Review
This Court’s role in reviewing claims brought under the Social Security Act is
a narrow one. The scope of its review is limited to determining (1) whether there is
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substantial evidence in the record as a whole to support the findings of the
Commissioner, and (2) whether the correct legal standards were applied. See Stone
v. Comm’r of Soc. Sec., 544 F. App’x 839, 841 (11th Cir. 2013) (citing Crawford v.
Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004)). This Court gives deference
to the factual findings of the Commissioner, provided those findings are supported by
substantial evidence, but applies close scrutiny to the legal conclusions. See Miles v.
Chater, 84 F.3d 1397, 1400 (11th Cir. 1996).
Nonetheless, this Court may not decide facts, weigh evidence, or substitute its
judgment for that of the Commissioner. Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th
Cir. 2005) (quoting Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir. 2004)).
“The substantial evidence standard permits administrative decision makers to act
with considerable latitude, and ‘the possibility of drawing two inconsistent
conclusions from the evidence does not prevent an administrative agency’s finding
from being supported by substantial evidence.’” Parker v. Bowen, 793 F.2d 1177, 1181
(11th Cir. 1986) (Gibson, J., dissenting) (quoting Consolo v. Fed. Mar. Comm’n, 383
U.S. 607, 620 (1966)). Indeed, even if this Court finds that the proof preponderates
against the Commissioner’s decision, it must affirm if the decision is supported by
substantial evidence. Miles, 84 F.3d at 1400 (citing Martin v. Sullivan, 894 F.2d 1520,
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1529 (11th Cir. 1990)).
However, no decision is automatic, for “despite th[e] deferential standard [for
review of claims], it is imperative that th[is] Court scrutinize the record in its entirety
to determine the reasonableness of the decision reached.” Bridges v. Bowen, 815 F.2d
622, 624 (11th Cir. 1987) (citing Arnold v. Heckler, 732 F.2d 881, 883 (11th Cir. 1984)).
Moreover, failure to apply the correct legal standards is grounds for reversal. See
Bowen v. Heckler, 748 F.2d 629, 635 (11th Cir. 1984).
Mr. Graham alleges that the ALJ’s decision should be reversed and remanded
for three reasons. First, he asserts that the ALJ erred in rejecting the opinion of Dr.
John Goff, who performed a psychological evaluation of Mr. Graham on September
27, 2011. (Doc. 10 at 1; see also Tr. at 434.) Second, Mr. Graham claims the ALJ erred
in failing to find that he suffered from alcohol related persisting dementia, resulting
in marked and extreme limitations. (Doc. 10 at 2.) Finally, Mr. Graham believes that
the ALJ erred in concluding that he did not meet Listing 11.14. (Id.)
A. Opinion of Dr. Goff
Mr. Graham contends that the ALJ improperly rejected the opinion of Dr. John
Goff by giving his conclusions “little weight” in her analysis. (Doc. 10 at 2; see also
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Tr. at 52.) Dr. Goff, a clinical neuropsychologist, performed a psychological
evaluation of Mr. Graham on September 27, 2011, at the request of Mr. Graham’s
attorney. (Tr. at 434.) Dr. Goff acknowledges several times in his report that the
purpose of his evaluation of Mr. Graham was for use in a disability determination.
(Tr. at 435.) Therefore, Dr. Goff is appropriately classified as a “nontreating source”
under the regulations. See 20 C.F.R. §§ 404.1502, 416.902 (“We will not consider an
acceptable medical source to be your treating source if your relationship with the
source is not based on your medical need for treatment or evaluation, but solely on
your need to obtain a report in support of your claim for disability.”). The opinion of
Dr. Goff is thus not entitled to deferential “controlling weight” in the analysis. See
20 C.F.R. §§ 404.1527(c), 416.927(c); see also Stone, 544 F. App’x at 842 (“The ALJ
does not have to defer to the opinion of a physician who conducted a single
examination, and who was not a treating physician.”) (citing McSwain v. Bowen, 814
F.2d 617, 619 (11th Cir. 1987)). Rather, the value of Dr. Goff’s assessment is weighed
by considering the following factors: (1) examining relationship, (2) treatment
relationship, (3) supportability of medical evidence to the opinion, (4) consistency
with the record as a whole, (5) specialization, and (6) other factors “which tend to
support or contradict the opinion.” 20 C.F.R. §§ 404.1527(c), 416.927(c); see also
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Stone, 544 F. App’x at 842.
Mr. Graham argues that the ALJ “went to great lengths to . . . discredit Dr.
Goff’s opinion” and “provided no valid reason” for rejecting it. (Doc. 10 at 5, 8.) On
the contrary, the decision by the ALJ reveals that she meticulously reviewed Dr.
Goff’s report, providing a summary of his findings (tr. at 46-47, 51-54), and properly
used the above criteria to evaluate his opinion. For example, the ALJ concluded that
Dr. Goff’s assertion that Mr. Graham was functionally illiterate and had a “marked”
or “extreme” limitation in 13 out of the 17 measurable categories of mental workrelated activity1 was inconsistent with the record as a whole and the narrative part of
Dr. Goff’s report, directly invoking the fourth criterion. (Tr. at 52; see also tr. at
440-41 (Medical Source Opinion (“MSO”) form).) The ALJ also found that Dr.
Goff’s opinion that Plaintiff was functionally illiterate was inconsistent with Plaintiff’s
school records and that Plaintiff’s statement to Dr. Goff that he quit drinking (except
for an occasional beer) was inconsistent with his testimony the he drank up to a fifth
of whisky per day through November 2011. (Tr. at 51-53.)
Plaintiff’s primary challenge is to the ALJ’s determination that Dr. Goff’s
For example, Dr. Goff opined that Plaintiff had a “marked” limitation to understand
and carry out simple instructions, to respond appropriately to supervision, to use judgment in
simple one or two step work-related decisions, and to deal with changes in a routine work setting.
(Tr. at 440.) Dr. Goff also found Plaintiff had an “extreme” limitation in maintaining attention,
concentration, or pace for periods of at least 2 hours. (Id.)
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opinion that Plaintiff had “marked” limitations in the ability to understand and carry
out simple instructions and an “extreme” limitation in the ability to remember simple
instructions was inconsistent with the record as a whole. In support for that
conclusion, the ALJ noted that Mr. Graham’s sister “indicated . . . that [Mr. Graham]
followed written and spoken instructions very well” and that Mr. Graham himself
informed the Social Security representative that he could “read his forms and mail”
and did not need the forms read to him. (Tr. at 52.) The ALJ also noted that the
findings of two other medical professionals who evaluated Mr. Graham contradicted
Dr. Goff’s opinion. (Id.) Dr. Donald Blanton, a psychologist who evaluated Mr.
Graham on July 21, 2010, noted that Mr. Graham was able to do calculations, list four
digits forward and three digits backward, and “was concrete in his interpretation of
similarities and proverbs.” (Tr. at 372; see also tr. at 52.) Dr. Linda Duke, the state
agency psychological consultant, reported on her RFC assessment that Mr. Graham
“ha[d] the ability to understand, remember[,] and carry out short, simple
instruction[s].” (Tr. at 394; see also tr. at 52.) The ALJ conducted a similar analysis
for several other assertions made by Dr. Goff on the MSO form he completed for Mr.
Graham. (Tr. at 52-54.)
“The ALJ may reject the opinion of any physician if the evidence supports a
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contrary conclusion.” Stone, 544 F. App’x at 842 (citing Sryock v. Heckler, 764 F.2d
834, 835 (11th Cir. 1985)). Here, the ALJ’s lengthy discussion of Dr. Goff’s opinion,
as well as her reasoned justifications for according it little weight in her evaluation of
Mr. Graham, demonstrates that the ALJ properly considered the evidence contained
within the record and applied the appropriate legal standards from the regulations.
The ALJ’s findings, “if supported by substantial evidence, shall be conclusive.”
Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997) (quoting 42 U.S.C. § 405(g)).
“Th[is] Court will not disturb the Commissioner’s decision if, in light of the record
as a whole, it appears to be supported by substantial evidence.” Lewis v. Callahan, 125
F.3d 1436, 1439 (11th Cir. 1997). For these reasons, this Court holds that the ALJ did
not err in according little weight to the opinion of Dr. John Goff.2
Plaintiff also appears to take issue with the ALJ’s citation to King v. Apfel, 2000 WL
284217 (S.D. Ala. Feb. 29, 2000), and the ALJ’s use of quotations from that case to apply to
Plaintiff’s case, i.e.: “Goff’s assessment of Plaintiff’s abilities was so out of line with the balance
of evidence that the ALJ found it lacking objective support” and “the truth is that everything
else in the record is counter to the extreme findings of Goff.” (See tr. at 53.) Plaintiff argues that
the ALJ was required to provide him the opinion in King for comment before citing to it in the
decision. The ALJ’s use of King does not diminish the substantial evidence supporting the ALJ’s
determination that Dr. Goff’s opinion was inconsistent with the record. King is an unpublished
district court decision, not evidence, and the ALJ was not required to proffer caselaw prior to
issuing a decision. A claimant's right to procedural due process is violated only when the
Commissioner "den[ies] a claimant Social Security benefits based upon post-hearing medical
reports without giving the claimant an opportunity to subpoena and cross-examine the authors of
such reports.” Demenech v. Sec'y of Health and Human Servs., 913 F.2d 882, 884 (11th Cir. 1990)
(emphasis added); see Hudson v. Heckler, 755 F.2d 781, 784 (11th Cir.1985) (“Due process is
violated when a claimant is denied the opportunity to subpoena and cross-examine those who
submit medical reports”).
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B. Alcohol Related Persisting Dementia
Mr. Graham asserts that the ALJ improperly failed to find that he suffered from
alcohol related persisting dementia. (Tr. at 9.) Specifically, it appears Mr. Graham
takes issue with the fact that the ALJ did not find his alcohol related persisting
dementia qualified as a “severe” impairment. (Id.) An impairment is classified as
“severe” if it “significantly limit[s] [Mr. Graham’s] physical or mental ability to do
basic work activities.” 20 C.F.R. §§ 404.1521(a), 416.921(a). The burden is on Mr.
Graham to prove that a given impairment meets the standard established in the
regulations. See Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999) (superseded by
statute on other grounds). “A diagnosis alone is an insufficient basis for a finding that
an impairment is severe”; rather, the severity must be proven by objective medical
evidence. Sellers v. Barnhart, 246 F. Supp. 2d 1201, 1211 (M.D. Ala. 2002).
Furthermore, Mr. Graham must demonstrate that his alleged impairment negatively
impacts his ability to work. See Wind v. Barnhart, 133 F. App’x 684, 690 (11th Cir.
2005) (citing McCruter v. Bowen, 791 F.2d 1544, 1547 (11th Cir. 1986)).
Dr. John Goff, the clinical neuropsychologist who conducted a psychological
evaluation of Mr. Graham on September 27, 2011, diagnosed Mr. Graham with alcohol
related persisting dementia. (Tr. at 439.) Although other health professionals who
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examined or evaluated Mr. Graham diagnosed him with similar conditions related to
his longtime alcohol abuse, Dr. Goff was the only source who found that Mr. Graham
suffers specifically from alcohol related persisting dementia. The ALJ acknowledged
that Dr. Goff made this diagnosis (tr. at 47); however, she then proceeded to accord
“little weight” to Dr. Goff’s opinion for the reasons stated in Subpoint A, supra.
Moreover, the ALJ did find that Mr. Graham had other similar alcohol-related mental
impairments that satisfied the severity standard set out in the regulations, such as
anxiety and depression secondary to alcohol dependence. (Tr. at 35-36.) Her
determination to not include “alcohol related persisting dementia” among the list of
Mr. Graham’s severe impairments is reasonable given her assessment of Dr. Goff’s
Nonetheless, even if the ALJ improperly failed to find that alcohol related
persisting dementia was a severe impairment, any error to omit a severe impairment
when others have been named is harmless. See Heatly v. Comm’r of Soc. Sec., 382 F.
App’x 823, 824-25 (11th Cir. 2010). “Nothing requires that the ALJ must identify,
at step two, all of the impairments that should be considered severe.” Id. at 825. This
is because the third step in the sequential evaluation process requires the ALJ to
consider all of Mr. Graham’s impairments, both severe and non-severe, to determine
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if they meet or medical equal a listed impairment.
See 20 C.F.R. §§
404.1520(a)(4)(iii), 416.920(a)(4)(iii); see also Heatly, 382 F. App’x at 825. The ALJ’s
extensive discussion of Mr. Graham’s medical records plainly shows that she
reviewed the documents contained within the file and considered Dr. Goff’s diagnosis
in determining Mr. Graham’s severe impairments. Therefore, this Court holds that
the ALJ did not err in failing to include alcohol related persisting dementia among that
C. Listing 11.14
Mr. Graham contends that the ALJ improperly failed to find that he meets
Listing 11.14 at step three of the sequential evaluation. (Doc. 10 at 10.) On the
contrary, the ALJ specifically states that she gave “particular consideration” to that
listing. (Tr. at 37.) Regardless, Listing 11.14 includes “peripheral neuropathies . . .
with disorganization of motor function . . ., in spite of prescribed treatment.” 20
C.F.R. Pt. 404, Subpt. P, App. 1, Listing 11.14. “Disorganization of motor function”
must be “significant and persistent . . . in two extremities, resulting in sustained
disturbance of gross and dexterous movements, or gait and station.” Id. at Listing
11.04B. “Persistent disorganization of motor function” is defined as “paresis or
paralysis, tremor or other involuntary movements, ataxia and sensory disturbances .
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. . which occur singly or in various combinations.” Id. at Listing 11.00C. “The
assessment of impairment depends on the degree of interference with locomotion
and/or interference with the use of fingers, hands, and arms.” Id.
Mr. Graham must show that his impairment or combination of impairments
satisfies all of the specified medical criteria for a given listing. See Perkins v. Comm’r
of Soc. Sec., 553 F. App’x 870, 872 (11th Cir. 2014). “[A]n impairment that fails to do
so does not qualify no matter how severely it meets some of the criteria.” Id. (citing
Sullivan v. Zebley, 493 U.S. 521, 530 (1990) (superseded by statute on other grounds)).
Furthermore, a diagnosis alone is not sufficient to establish that an impairment(s)
meets a listing. 20 C.F.R. §§ 404.1525(d), 416.925(d). In order for an impairment or
combination of impairments to medically equal a listing, the findings related to that
impairment or combination of impairments must be “at least of equal medical
significance” to the criteria of a listed impairment. 20 C.F.R. §§ 404.1526, 416.926.
This decision rests with the ALJ. Id. at §§ 404.1526(a), 416.926(a).
The ALJ did not supply an explanation of her reasoning but stated that Mr.
Graham’s impairments did not meet or medically equal Listing 11.14 because the
listing “require[s] specific signs, symptoms[,] and findings, which are not here
present.” (Tr. at 37.) This determination complies with the applicable legal standard
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requiring the ALJ at step three of the sequential evaluation process to consider
whether an impairment or combination of impairments meets or is medically equal to
a listing. See 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). The regulations do
not require the ALJ to “mechanically recite the evidence” used in making her
decision. See Kalishek v. Comm’r of Soc. Sec., 470 F. App’x 868, 870 (11th Cir. 2012)
(quoting Hutchison v. Bowen, 787 F.2d 1461, 1463 (11th Cir. 1986)).
Additionally, the medically determinable evidence supports the ALJ’s finding.
Dr. Gary Walton, a general practitioner, treated Mr. Graham for peripheral
neuropathy on several occasions in 2006 and 2007. (Tr. at 320-37.) Dr. Walton
referred Mr. Graham to Dr. Daniel Potts, a neurologist, who also treated Mr. Graham
in 2006 and 2007. (Tr. at 345-55.) Despite the diagnosis, both Dr. Walton and Dr.
Potts reported in their treatment notes that Mr. Graham’s gait was normal upon
examination. (Tr. at 329, 346, 348.) Only once did Dr. Potts describe Mr. Graham’s
gait as “ataxic.” (Tr. at 354.) Ataxia on a single occasion can hardly be described as
the “persistent” disorganization of motor function required to meet the listing. The
ALJ also gave “significant weight” to the opinion of Dr. Alexandre Todorov, a clinical
neurophysiologist who conducted a Physical Capacities Examination (“PCE”) of Mr.
Graham on June 30, 2011, and again on August 23, 2011. (Tr. at 51; see also tr. at
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397-406, 417-18, 424-29.) Dr. Todorov characterized Mr. Graham’s peripheral
neuropathy as “severe” in his PCE but nonetheless determined that Mr. Graham
“can do work related activities in a sitting, standing[,] or walking position.” (Tr. at
400, 418.) He noted that upon examination, Mr. Graham was able to stand up, keep
his balance with his eyes closed, and “squat and rise with no difficulties.” (Tr. at 399,
418.) Dr. Todorov’s findings signify a low “degree of interference with locomotion”
consistent with the ALJ’s determination that Mr. Graham’s impairment or
combination of impairments did not meet or medically equal a listing. (Tr. at 37.)
The scant evidence that indicates the level of disorganization of motor function
contemplated by the regulations is largely self-reported by Mr. Graham and is not
corroborated by medical observations. (E.g., Tr. at 67.) Moreover, the ALJ
determined that “numerous inconsistencies in the record” rendered Mr. Graham
“less than credible.” (Tr. at 47.)
This Court’s role in reviewing the decision of the ALJ is not to conduct its own
factfinding analysis. See Dyer, 395 F.3d at 1210; see also supra Part II. The ALJ applied
the correct legal standard by considering the listing (tr. at 37), and her decision that
Mr. Graham’s impairment or combination of impairments did not meet or medically
equal it is supported by substantial evidence. Therefore, this Court holds that the ALJ
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did not err by failing to find that Mr. Graham meets Listing 11.14.
Upon review of the administrative record, and considering all of Mr. Graham’s
arguments, this Court finds that the ALJ’s decision is supported by substantial
evidence and in accord with the applicable law. A separate order will be entered.
Done this 7th day of October 2014.
L. Scott Coogler
United States District Judge
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