Moore v. Commissioner of Social Security
Order ent. that the decision of the Commissioner of Social Security denying Plaintiffs claim for a period of disability, disability insurance benefits, and supplemental security income be AFFIRMED. Signed by Magistrate Judge Sonja F. Bivins on 9/25/2013. (mjn)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
CAROLYN W. COLVIN,1,
Commissioner of Social Security, *
CIVIL ACTION NO.12-00236-B
Plaintiff Roderick Moore (“Plaintiff”) brings this action
seeking judicial review of a final decision of the Commissioner
of Social Security denying his claim for a period of disability,
disability insurance benefits, and supplemental security income
under Titles II and XVI of the Social Security Act, 42 U.S.C. §
401, et seq. and 1381, et seq.
On May 30, 2013, the parties
referred to the undersigned to conduct all proceedings and order
the entry of judgment in accordance with 28 U.S.C. § 636(c) and
Carolyn W. Colvin became the Acting Commissioner of Social
Security on February 14, 2013. Pursuant to Rule 25(d), Federal
Rules of Civil Procedure, Carolyn W. Colvin should be
substituted for Michael J. Astrue as the defendant in this suit.
No further action need be taken to continue this suit by reason
of the last sentence of section 205(g) of the Social Security
Act, 42 U.S.C. § 405(g).
Federal Rule of Civil Procedure 73. (Doc. 21).
consideration of the administrative record and the arguments and
briefs of the parties, it is hereby ORDERED that the decision of
the Commissioner be AFFIRMED.
Plaintiff protectively filed applications for a period of
Plaintiff’s application was denied (id. at 86-90), and he timely
filed a Request for Hearing December 21, 2009. (Id. at 98). An
administrative hearing was held before Administrative Law Judge
Plaintiff and his attorney attended the administrative hearing,
as did a vocational expert (“VE”). (Id. at 38-58).
Plaintiff is not disabled. (Id. at 9-17).
On June 17,
The Appeals Council
denied Plaintiff’s request for review on February 7, 2012; thus,
the ALJ’s decision dated June 17, 2011 became the final decision
On January 3, 2002, Plaintiff was found disabled as of
September 25, 2002, due to a mental impairment.
In a decision
dated March 16, 2009, an administrative law judge (ALJ) found
that Plaintiff was no longer disabled as of January 1, 2008, see
20 C.F.R. § 404.15949(f)(8), noting evidence that Plaintiff had
returned to work. (Tr. 73-83).
That decision is not at issue
here. See 20 C.F.R. § 404.955 (effect of ALJ denial).
civil action. (Doc. 1).
The parties waived oral argument and
agree that this case is now ripe for judicial review and is
properly before this Court pursuant to 42 U.S.C. §§ 405(g) and
Issue on Appeal
Whether the ALJ erred in failing to specify what weight, if
any, he gave to Plaintiff’s treating physician?
III. Factual Background
Plaintiff was born on May 5, 1960, and was fifty years of
age at the time of the administrative hearing. (Tr. 42, 147).
He has a twelfth grade education and past work as a bumper
problems include seizure disorder and high blood pressure. (Id.
At the administrative hearing Plaintiff provided testimony
concerning his seizure disorder.
He testified that he has been
receiving treatment for his seizures from physicians at Stanton
Road Clinic since 2002. (Id. at 43-44).
that he suffers a seizure every other day, and that he spent one
night in the hospital in the past year due to a seizure episode
at his brother’s house. (Id. at 48, 51).
testified that his medication helps however, it causes him to
have headaches and feel drowsy and dizzy and, he has difficulty
activities, Plaintiff testified that he sits in his room and on
the porch, he watches television, he visits with his sister who
lives across the street from him, and he rides with his brother.
(Id. at 45-47)
Standard Of Review
In reviewing claims brought under the Act, this Court’s
supported by substantial evidence and 2) whether the correct
legal standards were applied.3 Martin v. Sullivan, 894 F.2d 1520,
1529 (11th Cir. 1990).
A court may not decide the facts anew,
reweigh the evidence, or substitute its judgment for that of the
Commissioner. Sewell v. Bowen, 792 F.2d 1065, 1067 (11th Cir.
The Commissioner’s findings of fact must be affirmed if
they are based upon substantial evidence. Id.; Bloodsworth v.
This Court’s review of the Commissioner’s application of
legal principles is plenary. Walker v. Bowen, 826 F.2d 996, 999
(11th Cir. 1987).
substantial evidence is defined as “more than a scintilla, but
evidence as a reasonable person would accept as adequate to
evidence exists, a court must view the record as a whole, taking
into account evidence favorable as well as unfavorable to the
Commissioner’s decision. Chester v. Bowen, 792 F.2d 129, 131
(11th Cir. 1986); Short v. Apfel, 1999 U.S. Dist. LEXIS 10163, *4
(S.D. Ala. June 14, 1999).
An individual who applies for Social Security disability
Disability is defined as the “inability to engage in
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 12 months.” 42
The Social Security regulations provide a five-step
sequential evaluation process for determining if a claimant has
proven his disability.4 20 C.F.R. §§ 404.1520, 416.920.
The claimant must first prove that he or she has not
engaged in substantial gainful activity.
The second step
requires the claimant to prove that he or she has a severe
In the case sub judice, the ALJ determined that Plaintiff
has not engaged in substantial gainful activity since June 4,
2008, and that he has the severe impairments of seizure disorder
and hypertension. (Tr. 11).
The ALJ also found that Plaintiff
does not have an impairment or combination of impairments that
contained in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Id.).
functional capacity (hereinafter “RFC”) to perform a full range
impairment or combination of impairments.
If, at the third
step, the claimant proves that the impairment or combination of
impairments meets or equals a listed impairment, then the
claimant is automatically found disabled regardless of age,
education, or work experience.
If the claimant cannot prevail
at the third step, he or she must proceed to the fourth step
where the claimant must prove an inability to perform their past
relevant work. Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir.
1986). In evaluating whether the claimant has met this burden,
the examiner must consider the following four factors: (1)
objective medical facts and clinical findings; (2) diagnoses of
examining physicians; (3) evidence of pain; and (4) the
claimant’s age, education and work history. Id. Once a claimant
meets this burden, it becomes the Commissioner’s burden to prove
at the fifth step that the claimant is capable of engaging in
another kind of substantial gainful employment which exists in
claimant’s residual functional capacity, age, education, and
work history. Sryock v. Heckler, 764 F.2d 834, 836 (11th Cir.
1985). If the Commissioner can demonstrate that there are such
jobs the claimant can perform, the claimant must prove inability
to perform those jobs in order to be found disabled. Jones v.
Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999); see also Hale v.
Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987) (citing Francis v.
Heckler, 749 F.2d 1562, 1564 (11th Cir. 1985)).
of work at all exertional levels with specified non-exertional
limitations. (Id. at 12).
The ALJ also found that Plaintiff
temperature extremes, cannot climb ladders, ropes or scaffolds,
and cannot use automobile equipment. (Id.).
The ALJ further
found that Plaintiff is limited to understanding, remembering,
and carrying out simple one and two step instructions and that
Plaintiff is not capable of performing his past relevant work.
Plaintiff’s RFC and vocational factors such as age, education,
and work experience, in conjunction with the VE’s testimony,
Plaintiff is able to perform other jobs existing in significant
numbers in the national economy such as a laundry folder, a dish
concluded that Plaintiff is not disabled. (Id. at 17).
1. Medical Evidence
Plaintiff testified that he has been receiving treatment
for his seizures from physicians at the Stanton
since 2002. (Id. at 43-44).
The relevant evidence of record
reflects that on December 4, 2008, Dr. Mudassar Asghar, M.D.,
completed a seizure questionnaire concerning Plaintiff’s seizure
On the questionnaire, Dr. Asghar noted that Plaintiff
suffers from seizures “by clinical description only and have not
been verified by testing.” (Id. at 229).
He also noted that in
August of 2008, Plaintiff underwent EEG testing, both awake and
drowsy, which produced normal results and showed no signs of
Plaintiff was diagnosed with complete partial seizures, and that
his medication does not control his seizures.
He indicated that
he could not predict the length of time it takes Plaintiff to
predict the frequency; however, Plaintiff reported experiencing
observed that Plaintiff reported that he was non-compliant with
his medications due to the side effects consisting of double
vision and a spaced out feeling. (Id.).
Dr. Asghar opined that
these side effects would not prevent Plaintiff from sustaining
normal concentration or pace in a work type setting. (Id.).
document any seizure activity because no seizure activity was
recorded on his prior EEG. (Id.).
On March 26, 2009, Plaintiff had a follow-up visit with Dr.
Asghar at Stanton Road Clinic. (Id. at 234).
Dr. Asghar’s notes
indicate that Plaintiff missed his EMV appointment, which was
scheduled to monitor any seizure activity. (Id.).
Dr. Asghar’s notes reflect that Plaintiff
some gait difficulty; and during the same visit, He reported “I
used to stumble a lot but now not as much.” (Id.).
also reported experiencing ten seizures since his December 2008
visit and that he suffers about one seizure per week, usually at
Dr. Asghar noted that while Plaintiff’s Dilantin
had been increased as a result of his reports of more seizures,
there had been no decrease in Plaintiff’s report of seizures.
In addition, Dr. Asghar noted that Plaintiff experienced
better results on different medications; however, he reported
difficulty purchasing those medications. (Id.).
Dr. Asghar also
discussed Plaintiff’s headaches and blood pressure, which was
180/110, and switched his medication. (Id.).
Plaintiff returned to the Neurology Department at Stanton
Road Clinic for a follow up visit on April 1, 2009.
exam was largely normal and no complaints were noted. (Id. at
Plaintiff’s blood pressure was well controlled at this
visit and he was instructed to continue taking his medication.
reported that he was still having seizures and headaches. (Id.
Plaintiff reported that his medications caused him to
feel dizzy and have double vision, so he only took the medicine
experiences headaches about every two days, which Dr. Asghar
Plaintiff’s medications “as is for now” until after Plaintiff’s
seizures could be verified by the EMV monitoring. (Id.).
In addition to Plaintiff’s treatment records from Stanton
Road Clinic, the record also contains treatment notes from South
Alabama emergency room.
Plaintiff was treated at the emergency
room on June 15, 2010, with reports of a witnessed seizure. (Id.
During the visit, Plaintiff reported that he was not
According to the treatment notes, Plaintiff appeared confused
Plaintiff’s blood work revealed high levels of alcohol (id. at
251, 245) and non-therapeutic levels of his seizure medication.
(Id. at 249-54).
Plaintiff was discharged and instructed to
take his medication as directed and to follow up with Franklin
Medical Clinic or the Board of Health. (Id. at 248).
no records before the Court documenting a follow up visit.
Plaintiff was treated at the South Alabama emergency room
on two other occasions, namely July 29, 2010 and August 21,
Plaintiff reported an insect sting from working in the
yard and a rash, respectively. (Id. at 237, 241).
not report any seizure activity during these two visits. (Id.).
Plaintiff to Dr.
Illyas A. Shaikh, M.D., for a consultative
seizures since 2004. (Id. at 259).
Plaintiff also reported that
he suffers about twelve seizures per month and that his most
recent seizure was the day before the evaluation on May 23,
He also reported that he was compliant with all
medications and although his previous medications made him feel
dizzy, his current medications were “not bad.” (Id.).
Plaintiff’s physical examination was largely normal except
that his blood pressure was elevated to 183/116. (Id. at 260).
Dr. Shaikh observed that Plaintiff was able to move all four
extremities and his bilateral extremities were without edema.
He had good fine motor skills and grip strength, he could stand
on his heels and toes, and his gait was slow, but normal. (Id.
Dr. Shaikh also completed a medical source statement
that outlined Plaintiff’s functional physical limitations. (Id.
Whether the ALJ erred in failing to
specify what weight, if any, he gave
to Plaintiff’s treating physician?
In his brief, Plaintiff’s sole assignment of error is that
Plaintiff’s treating physician, Dr. Asghar. (Doc. 13 at 1-4).
outlined the findings of the seizure questionnaire completed by
Dr. Asghar, “it is not clear from the language of the decision
what weight, if any, the ALJ gave to the opinion.” (Id. at 3-4).
Further, Plaintiff contends that the Dr. Asghar’s opinion is
consistent with treatment notes and is entitled to controlling
weight under 96-2p. (Id. at 4).
In response, the Commissioner
contends that “the ALJ examined the questionnaire and accurately
set forth Dr. Asghar’s limited findings.” (Doc. 16 at 8).
that the ALJ erred by failing to give proper weight to the
restrictions, would assist Plaintiff in meeting his burden of
proving his disability.
Thus, any such error is harmless. (Id.
Based on a careful review of the record, the Court finds
that Plaintiff’s argument is without merit.
treating physician must be given substantial weight unless “good
cause” is demonstrated to the contrary. Crawford v. Comm’r of
Soc. Sec., 363 F.3d 1155, 1159 (11th Cir. 2004) (citations and
internal quotations omitted).
“Good cause” exists where: 1) the
supported a contrary finding; or 3) the opinion was conclusory
or inconsistent with the doctor’s own medical records. Phillips
v. Barnhart, 357 F.3d 1232, 1340-41 (11th Cir. 2004); see also
Lewis, 125 F.3d at 1439-1441; Edwards v. Sullivan, 937 F.2d 580,
583 (11th Cir. 1991).
As noted supra, Plaintiff contends that the ALJ erred in
failing to cite what weight, if any, was given to Dr. Asghar’s
opinions as outlined in the seizure questionnaire.
Based on a
careful review of the record, the undersigned finds that while
the ALJ did not expressly articulate the weight afforded the
questionnaire; it is clear that the ALJ accorded great weight to
Dr. Asghar’s opinions set forth in the questionnaire as he found
found that due to the risk of seizure activity, Plaintiff was
machinery, climbing, and the operation of automobile equipment.
(Id. at 15).
The ALJ also found that “[d]ue to potential side
limited to understanding, remembering and carrying out simple
one and two step instructions.” (Id.).
Finally, it is noteworthy that Dr. Asghar’s questionnaire
arguendo, that the ALJ erred in not expressly stating the weight
limitations let alone limitations that are inconsistent with the
harmless. See Wright v. Barnhart, 153 Fed. App’x. 678, 684 (llth
directly conflict the ALJ’s findings).
consideration of the administrative record and memoranda of the
Commissioner of Social Security denying Plaintiff’s claim for a
supplemental security income be AFFIRMED.
DONE this 25th day of September, 2013.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE
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