Moss v. Social Security Administration, Commissioner
MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 3/16/2016. (JLC)
2016 Mar-16 PM 05:26
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
CHANDRA NICHELE MOSS,
CAROLYN W. COLVIN, ACTING
) Case No.: 7:14-CV-2040-VEH
Plaintiff Chandra Nichele Moss (“Moss”) brings this action under 42 U.S.C.
§ 405(g), Section 205(g) of the Social Security Act. She seeks review of a final adverse
decision of the Commissioner of the Social Security Administration (“Commissioner”),
who denied her application for Disability Insurance Benefits (“DIB”). Moss timely
pursued and exhausted her administrative remedies available before the Commissioner.
The case is thus ripe for review under 42 U.S.C. § 405(g). For the following reasons, the
court AFFIRMS the Commissioner’s decision.
Statement of the Case
Moss was 38 years old at the time of her hearing before the Administrative Law
Judge (“ALJ”). (Tr. 50–51). She has completed the 12th grade. (Tr. 50). Her past work
experience includes employment as a mental health resident aide and a mental health
service supervisor. (Tr. 69–70). She claims she became disabled on April 30, 2012, due
to diabetes, high blood pressure, degenerative disc disease, sleep apnea, and arthritis. (Tr.
190). She last worked on April 30, 2012. (Tr. 160).
On April 18, 2012, Moss protectively filed a Title II application for a period of
disability and DIB. (Tr. 160). On May 23, 2012 the Commissioner initially denied these
claims. (Tr. 90). Moss timely filed a written request for a hearing on November 13,
2013. (Tr. 21). The ALJ conducted a hearing on the matter on July 24, 2013. (Tr. 46). On
November 6, 2013, he issued his opinion concluding Moss was not disabled and denying
her benefits. (Tr. 23–39).
She timely petitioned the Appeals Council to review the
decision. (Tr. 20–21). The Appeals Council issued a denial of review on her claim. (Tr.
Moss filed a Complaint with this court on October 23, 2014, seeking review of
the Commissioner’s determination. (Doc. 1). The Commissioner answered on February
3, 2015. (Doc. 8). Moss filed a supporting brief, doc. 10, on March 19, 2015, and the
Commissioner responded with her own, doc. 11, on April 17, 2015.
Standard of Review
The court’s review of the Commissioner’s decision is narrowly circumscribed.
The function of this court is to determine whether the decision of the Commissioner is
supported by substantial evidence and whether proper legal standards were applied.
Richardson v. Perales, 402 U.S. 389, 390 (1971); Wilson v. Barnhart, 284 F.3d 1219,
1221 (11th Cir. 2002). This court must “scrutinize the record as a whole to determine
if the decision reached is reasonable and supported by substantial evidence.”
Bloodsworth v. Heck ler, 703 F.2d 1233, 1239 (11th Cir. 1983). Substantial evidence is
“such relevant evidence as a reasonable person would accept as adequate to support a
conclusion.” Id. It is “more than a scintilla, but less than a preponderance.” Id.
This court must uphold factual findings that are supported by substantial evidence.
However, it reviews the ALJ’s legal conclusions de novo because no presumption of
validity attaches to the ALJ’s determination of the proper legal standards to be applied.
Davis v. Shalala, 985 F.2d 528, 531 (11th Cir. 1993). If the court finds an error in the
ALJ’s application of the law, or if the ALJ fails to provide the court with sufficient
reasoning for determining that the proper legal analysis has been conducted, it must
reverse the ALJ’s decision. Cornelius v. Sulliv an, 936 F.2d 1143, 1145-46 (11th Cir.
Statutory and Regulatory Framework
To qualify for disability benefits and establish her entitlement for a period of
disability, a claimant must be disabled as defined by the Social Security Act and the
Regulations promulgated thereunder. The Regulations define “disabled” as “the inability
to do 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 (12) months.” 20
C.F.R. § 404.1505(a). To establish an entitlement to disability benefits, a claimant must
provide evidence about a “physical or mental impairment” that “must result from
anatomical, physiological, or psychological abnormalities which can be shown by
medically acceptable clinical and laboratory diagnostic techniques.” 20 C.F.R. §
The Regulations provide a five-step process for determining whether a claimant
is disabled. 20 C.F.R. § 404.1520(a)(4)(i-v). The Commissioner must determine in
whether the claimant is currently employed;
whether the claimant has a severe impairment;
whether the claimant’s impairment meets or equals an impairment listed by
whether the claimant can perform his or her past work; and
whether the claimant is capable of performing any work in the national
Pope v. Shalala, 998 F.2d 473, 477 (7th Cir. 1993) (citing to formerly applicable C.F.R.
section), overruled on other grounds by Johnson v. Apfel, 189 F.3d 561, 562-63 (7th
Cir. 1999); accord McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). The
sequential analysis goes as follows:
Once the claimant has satisfied steps One and Two, she will automatically be
found disabled if she suffers from a listed impairment. If the claimant does not
have a listed impairment but cannot perform her work, the burden shifts to the
[Commissioner] to show that the claimant can perform some other job.
Pope, 998 F.2d at 477; accord Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995).
The Commissioner must further show that such work exists in the national economy in
significant numbers. Id.
After consideration of the entire record, the ALJ made the following findings:
The claimant met the insured status requirements of the Social Security Act
through December 31, 2016.
The claimant had not engaged in substantial gainful activity since April 18,
2012, the alleged disability onset date.
The claimant had the following severe impairments: obesity, degenerative
disc disease (DDD) of the lumbar spine, rheumatoid arthritis (RA), and
diabetes mellitus (DM) (20 C.F.R. 404.1520(c)).
The claimant did not have an impairment or combination of impairments
that met or medically equaled one of the listed impairments in 20 C.F.R.
Part 404, Subpart P, Appendix 1.
The claimant had the residual functioning capacity (“RFC”) to perform
unskilled sedentary work as defined in 20 C.F.R. 404. 1567(a) that requires
no climbing of ladders, ropes, or scaffolds and only occasional climbing
of ramps and stairs; no more than occasional balancing, stooping,
crouching, kneeling, and crawling; no more than occasional exposure to
pulmonary irritants, extreme heat or cold, excessive vibration, and
humidity/wetness; no operational control of hazardous or moving
machinery; and no work at unprotected heights.
The claimant was unable to perform any past relevant work (20 C.F.R.
The claimant was born on [redacted], 1975 and was 36 years old, which is
defined as a younger individual age 18–44, on the alleged disability date.
(20 C.F.R. 404.1563).
The claimant had at least a high school education and was able to
communicate in English.
Transferability of job skills was not material to the determination of
disability because using the Medical-Vocational Rules as a framework
supported a finding that she was “not disabled,” whether or not she had
transferable job skills.
Considering the claimant’s age, education, work experience, and residual
functional capacity, there were jobs that existed in significant numbers in
the national economy that she could perform.
The claimant had not been under a disability, as defined in the Social
Security Act, from April 18, 2012, through the date of this decision.
The court may only reverse a finding of the Commissioner if it is not supported
by substantial evidence. 42 U.S.C. § 405(g). “This does not relieve the court of its
responsibility to scrutinize the record in its entirety to ascertain whether substantial
evidence supports each essential administrative finding.” Walden v. Schweiker, 672 F.2d
835, 838 (11th Cir. 1982) (citing Strickland v. Harris, 615 F.2d 1103, 1106 (5th Cir.
1980)).1 However, the court “abstains from reweighing the evidence or substituting its
own judgment for that of the [Commissioner].” Id. (citation omitted).
Moss urges this court to reverse the Commissioner’s decision to deny her
benefits on two grounds: First, that the ALJ failed to give controlling weight to the
opinion of Moss’s treating physician, Dr. Shamblin, and second, that the ALJ improperly
applied the pain standard to determine the disabling effect of a claimant’s alleged pain.
(Doc. 10). The court will consider these alternative grounds in turn, although neither
rationale is persuasive. The Commissioner’s decision will be AFFIRMED.
Beginning with Moss’s first assignment of error, medical opinion evidence must
be considered by the ALJ. See 20 C.F.R. § 404.1527(b). If the opinion comes from a
treating source and is otherwise supported by the medical evidence, then that opinion is
given controlling weight. 20 C.F.R. § 404.1527(c)(2). The Eleventh Circuit has explained
that an opinion is not otherwise supported by the medical evidence when 1) there is
insufficient evidence to support a physician’s conclusion; 2) the evidence undermines the
physician’s conclusion; 3) the physician’s opinion is conclusory; or 4) the physician’s
own treatment records do not support his position. Phillips v. Barnhart, 357 F.3d 1232,
1240 (11th Cir. 2004) (quoting Lewis v . Callahan, 125 F.3d 1436, 1440 (11th Cir.
This authority is controlling in the Eleventh Circuit. See Bonner v. City of Prichard,
Ala., 661 F.2d 1206, 1209 (11th Cir. 1981) (holding that decisions of the former Fifth Circuit handed
down prior to the close of business on September 30, 1981, are binding in the Eleventh Circuit).
1997)) (internal quotation marks omitted).
Opinions from medical sources that purport to establish whether a claimant is
disabled, unable to work, whether the impairments meet the listings, or the claimant’s
RFC are not “medical opinions,” although the Commissioner considers them. 20 C.F.R.
§ 404.1527(d). Thus, such opinions are entitled to no particular weight, 20 C.F.R. §
404.1527(d)(3), although it is “imprecise,” Bjornson v . Astrue, 671 F.3d 640, 647 (7th
Cir. 2012), to say that the Commissioner may ignore them. They are not like the
conclusory allegations (treating them as such is a common error) due to be ignored under
the Twiqbal regime; rather, the opinions are merely not dispositive.
This is a somewhat nuanced framework, although the real question at the end of the
day is always whether there was substantial evidence to support the ALJ’s decision; the
rules—especially the caselaw—are window dressing.2 Cf. Matthew C. Stephenson and
Adrian Vermeule, Chevron Has Only One Step, 95 VA . L. REV. 597, 604 & 605 n. 28
(2009) (citing Ronald M. Levin, The Anatomy of Chevron: Step Two Reconsidered, 72
CHI.-KENT L. REV. 1253, 1296 (1997)) (considering whether the second step of
The best example of window dressing is actually found when evaluating subjective pain.
Compare Gibson v. Heckler, 779 F.2d 619, 623 (11th Cir. 1986) (may not discount subjective
complaints of pain on the basis of lack of objective support and clinical findings) with Holt v.
Sullivan, 921 F.2d 1221 (11th Cir. 1991) (may discount subjective complaints of pain on the basis of
lack of objective support and clinical findings). The lesson here, of course, is that neither discounting
nor failing to discount such complaints is error per se; either outcome is sustainable as long as it is
based on substantial evidence.
Chevron3 is merely arbitrary and capricious review under 5 U.S.C. § 706).
Unfortunately, the window dressing can obscure the window, and when the topic
is medical opinions, the command to give controlling or substantial weight to these
opinions has been at times warped by counsel into what I call the permission slip theory
of medical opinions. Under this theory, a treating physician writes a conclusory opinion
unsupported by any evidence, hoping to secure disability benefits in much the way he
might produce a slip excusing a student’s absence. Thus, what formerly was an example
of a means of satisfying the substantial evidence requirement is corrupted into a method
of avoiding it. This court has criticized the permission slip theory before, see, e.g.,
Pounds v. Colv in, No. 2:14-cv-1785-VEH, (N.D. Ala. Feb. 17, 2016); Springer v.
Colvin, No. 5:14-1827-VEH (N.D. Ala. Oct. 10, 2015), but it is worth noting that
presence of a “permission slip” in the record does not mean that the opinion should be
ignored. Instead, it should simply be treated like any other evidence.
With these principles in mind, I turn to Dr. Shamblin’s opinions. First up is a
disability claim form completed by Dr. Shamblin on May 8, 2012, which indicates that
Moss has impairments of diabetes mellitus (“DM”), rheumatoid arthritis (“RA”), anemia,
and hypertension (“HTN”). (Tr. 554). Dr. Shamblin expressed the opinion that she would
be able to return to work within one to three months. (Id.). On March 19, 2012, Dr.
Chevron, U.S.A., Inc., v. Natural Resources Defense Council, Inc., 467 U.S. 837
Shamblin indicated that Moss was totally and permanently incapacitated, because she had
DM, RA, HTN, and anemia. (Tr. 488). He explained his conclusion by saying:
[Patient’s] RA will cause flare-ups rendering the pt from any
type of physical activity. RA also causes daily pain of the
joints especially in the hands. Pt also has uncontrolled DM.
High blood sugar levels will cause dizziness. Hypertension
will also cause dizziness if BP is too high. Pt’s anemia will
also cause weakness fatigue and dizziness.
Due to Pt’s RA, she is not able to lift heavy objects.
Pt’s DM, hypertension, and anemia [limit] the patient because
of the dizziness and fatigue that the pt will experience. Flareups caused by RA will render the patient from any daily
(Tr. 488–89). On July 27, 2012, Dr. Shamblin completed the same form and indicated
that he was unsure when Moss would be able to return to work. (Tr. 456). On September
13, 2012, Dr. Shamblin completed a form indicating that Moss had DM, RA, anemia, and
HTN, and he checked a box indicating that Moss can never return to work. (Tr. 434).
The ALJ credited all the diagnoses in Dr. Shamblin’s opinions. The opinion
information about when Moss can return to work is not subject to any particular weight,
so it may be freely weighed by the ALJ against the other evidence in the record. As to the
the March 19 opinion—by far the most substantial one—the ALJ credited the portions
of the opinion discussing Moss’s DM, HTN, and anemia (Tr. 36–37).
As to the portions of the March 19 opinion relating to Moss’s RA, there are
essentially three pieces of information contained in that opinion: that Moss’s RA renders
her incapable of performing daily activities, that the RA causes pain, and that the RA
prevents her from lifting heavy loads. The first is undermined by Moss’s reported daily
activities, which will be discussed more fully in the pain section. The other two
statements are entitled to substantial deference, and the ALJ agreed Moss cannot lift
heavy weights. (Tr. 37). As to Moss’s pain, the ALJ gave due credit to the physician’s
opinion that the Moss was in pain because the ALJ agreed Moss was likely in pain, tr. 37,4
but an unadorned announcement that a claimant is in pain is insufficient to establish that
the pain is disabling. The ALJ properly considered Dr. Shamblin’s opinions.
Moss argues that under SSR 96-5p, the ALJ was under a duty to recontact Dr.
Shamblin. This is no longer the law; SSR 96-5p has been superseded, see How We
Collect and Consider Evidence of Disability, 77 Fed. Reg. 10,651, 10,655–57 (Feb. 23,
2012) (codified at 20 C.F.R. §§ 404.1520b & 416.920b), and the decision to recontact
a physician is now within the ALJ’s discretion.
Turning to the pain analysis, there is no doubt the ALJ applied the right test.
Compare Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002) (citation omitted)
(pain standard requires evidence of an underlying medical condition; and that the
objectively determined medical condition can reasonably be expected to give rise to the
Technically, the ALJ stated that Moss was likely in pain when discussing the opinion
evidence of Moss’s mother, but the point remains that the ALJ believed she was in pain. To the
extent that Moss argues that Moss’s RA caused a separate pain that the ALJ failed to adequately
discuss, I discuss it with the pain standard generally below.
claimed pain) with tr. 31–32 (applying pain standard). Moss spends almost the entirety
of her pain standard argument explaining that she has presented enough evidence to
satisfy the first prong of the standard, and the ALJ agreed. (See Tr. 32 (“[T]he [ALJ] finds
that the claimant has medically determinable impairments that could reasonably be
expected to cause symptoms such as those alleged.”)).
A very small part of her argument is devoted to the disabling effect of her pain, and
all Moss has to say is that Dr. Shamblin said she was in so much pain as to be disabled.
There are two responses: First, the use of Dr. Shamblin’s opinion in this way comes
dangerously close to being an evidentiarily worthless permission slip. Second, Dr.
Shamblin’s opinion does not say that Moss’s pain is disabling, the mere fact of pain is not
ipso facto disabling, and there is no requirement that the ALJ read the evidence in the
light most favorable to the claimant. So, Dr. Shamblin’s opinion is insufficient to
establish Moss’s disability by pain.
Moss’s lack of argument on the issue aside, the court will consider whether the
ALJ correctly concluded that Moss’s subjective claims of pain should be disregarded
because Moss’s daily activities were inconsistent with disabling pain. I begin with the
governing law: “[C]redibility determinations are the province of the ALJ.” Moore v.
Barnhart, 405 F.3d 1208, 1212 (11th Cir. 2005). It is axiomatic that participation in
activities inconsistent with the existence of an alleged health condition may properly be
considered as bearing on the credibility of the allegation. Moss, in her activity
description, explained that she performed light housekeeping, folded clothes, drove her
daughter to school, went outside to walk, shopped for an hour at a time, and attended a
water aerobics class. (Tr. 173–177).
The ALJ noted these activities. (Tr. 34–35).
Because these activities are inconsistent with Moss’s testimony that she is in disabling
pain, and that she must spend all day lying down and “elevat[ing] [her] everything,” tr. 67,
the ALJ’s decision to discount her subjective testimony was based on substantial
The same reasoning applies to Dr. Shamblin’s opinion that Moss’s RA prevents her
from doing daily activities. Further, the ALJ pointed out that there was little evidence in
the record of RA (except for a lab result at tr. 401 which does not measure pain), Moss
did not complain about it much in the record at a level to establish the pain is disabling,
and Moss showed 5/5 strength in her hands (Tr. 274; 392). Additionally, Moss did not
show swelling in her fingers, although they were sometimes tender. (Tr. 274). The
evidence did not demonstrate that Moss is or was disabled.
Based upon the court’s evaluation of the evidence in the record and the parties’
submissions, the court finds that the decision of the Commissioner is supported by
substantial evidence and that she applied proper legal standards in arriving at it.
Accordingly, the decision will be affirmed by separate order.
DONE and ORDERED this 16th day of March, 2016.
VIRGINIA EMERSON HOPKINS
United States District Judge
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