Moore v. Commissioner of Social Security

Filing 22

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
SOUTHERN DIVISION
RODERICK MOORE,

*
*
Plaintiff,
*
*
vs.
*
*
CAROLYN W. COLVIN,1,
*
Commissioner of Social Security, *
*
Defendant.
*

CIVIL ACTION NO.12-00236-B

ORDER
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.
consented
proceedings

to
in

have

the

this

case.

On May 30, 2013, the parties

undersigned
(Doc.

19).

conduct
Thus,

any
the

and
action

all
was

referred to the undersigned to conduct all proceedings and order
the entry of judgment in accordance with 28 U.S.C. § 636(c) and

1

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).

Upon careful

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.
I.

Procedural History
Plaintiff protectively filed applications for a period of

disability,
security

disability

income

disability

on

insurance

August

20,

on

August

commenced

benefits,
2009,
12,

and

and

supplemental

alleged

2009.

(Tr.

that

his

147-55).2

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
David

Murchison

(hereinafter

“ALJ”)

on

April

20,

2011.

Plaintiff and his attorney attended the administrative hearing,
as did a vocational expert (“VE”). (Id. at 38-58).
2011,

the

ALJ

issued

an

unfavorable

opinion

Plaintiff is not disabled. (Id. at 9-17).

On June 17,
finding

that

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
2

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).

2

of

the

Commissioner.

administrative

(Id.

remedies,

civil action. (Doc. 1).

at

1-3).

Plaintiff

Having

timely

exhausted

filed

the

his

present

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
1383(c)(3).
II.

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
inspector,
grocery

detailer,

store

testified

that

clerk.
he

has

shipping
(Id.
not

and

at

42,

worked

receiving
171-75,
since

employee,

174).

2002,

and

and

Plaintiff
that

his

problems include seizure disorder and high blood pressure. (Id.
at 46).
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).

Plaintiff testified

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

3

at his brother’s house. (Id. at 48, 51).

Plaintiff further

testified that his medication helps however, it causes him to
have headaches and feel drowsy and dizzy and, he has difficulty
paying

for

it.

(Id.

at

43-45).

With

respect

to

his

daily

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)
IV.

Analysis

(1)

Standard Of Review

In reviewing claims brought under the Act, this Court’s
role

is

a

determining

limited
1)

one.

whether

The
the

Court’s
decision

review
of

the

is

limited

to

Secretary

is

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.
1986).

The Commissioner’s findings of fact must be affirmed if

they are based upon substantial evidence. Id.; Bloodsworth v.
Heckler,

703

F.2d

1233,

1239

3

(11th

Cir.

1983)

(holding

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).

4

substantial evidence is defined as “more than a scintilla, but
less

than

a

preponderance”

and

consists

of

“such

relevant

evidence as a reasonable person would accept as adequate to
support

a

conclusion.”).

In

determining

whether

substantial

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).
B.

Discussion

An individual who applies for Social Security disability
benefits
416.912.
any

must

prove

his

disability.

20

C.F.R.

§§

404.1512,

Disability is defined as the “inability to engage in

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 12 months.” 42
U.S.C.

§§

416.905(a).

423(d)(1)(A);

see

also

20

C.F.R.

§§

404.1505(a),

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.

4

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
(Continued)
5

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
meets

or

medically

equals

any

of

the

listed

impairments

contained in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Id.).
The

ALJ

concluded

that

Plaintiff

retains

the

residual

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
significant
numbers
in
the
national
economy,
given
the
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)).

6

of work at all exertional levels with specified non-exertional
limitations. (Id. at 12).
cannot

be

exposed

to

The ALJ also found that Plaintiff

dangerous

heights

or

machinery

or

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
he

is

expected

Utilizing

the

to

miss

services

one
of

day
a

of

VE,

work

the

per

ALJ

month.

(Id.).

determined

that

Plaintiff is not capable of performing his past relevant work.
(Id.

at

16).

In

addition,

the

ALJ

found

that

considering

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
washer,

and

a

hand

packager.

(Id.

at

16).

Thus,

the

ALJ

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).

Road Clinic

The relevant evidence of record

reflects that on December 4, 2008, Dr. Mudassar Asghar, M.D.,
completed a seizure questionnaire concerning Plaintiff’s seizure
disorder.

On the questionnaire, Dr. Asghar noted that Plaintiff
7

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
seizure

activity.

(Id.).

Dr.

Asghar

further

noted

that

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
regain

normal

functioning

following

a

seizure,

nor

could

he

predict the frequency; however, Plaintiff reported experiencing
ten

seizures

over

a

three-month

period.

(Id.).

Dr.

Asghar

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.).
Asghar

recommended

that

Plaintiff

undergo

EMV

monitoring

Dr.
to

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.).
reported

that

he

did

not

know
8

that

the

Plaintiff

appointment

was

scheduled. (Id.).
reported

Dr. Asghar’s notes reflect that Plaintiff

experiencing

mild

intermitted

bilateral

tremors

and

some gait difficulty; and during the same visit, He reported “I
used to stumble a lot but now not as much.” (Id.).

Plaintiff

also reported experiencing ten seizures since his December 2008
visit and that he suffers about one seizure per week, usually at
night. (Id.).

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.
(Id.).

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.

Plaintiff’s

exam was largely normal and no complaints were noted. (Id. at
232).

Plaintiff’s blood pressure was well controlled at this

visit and he was instructed to continue taking his medication.
(Id.

at

232-33).

Plaintiff

returned

on

July

16,

2009,

and

reported that he was still having seizures and headaches. (Id.
at 230).

Plaintiff reported that his medications caused him to

feel dizzy and have double vision, so he only took the medicine
at

night.

(Id.).

Plaintiff

also
9

reported

that

he

still

experiences headaches about every two days, which Dr. Asghar
noted

was

an

improvement.

(Id.).

Dr.

Asghar

continued

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.
at 246).
taking

During the visit, Plaintiff reported that he was not

his

medications

on

account

of

his

finances.

(Id.).

According to the treatment notes, Plaintiff appeared confused
and

intoxicated

and

smelled

of

alcohol.

(Id.

at

247).

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).

There are

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,
2010.

Plaintiff reported an insect sting from working in the

yard and a rash, respectively. (Id. at 237, 241).

Plaintiff did

not report any seizure activity during these two visits. (Id.).
After

Plaintiff

submitted
10

his

applications

for

social

security

benefits,

Plaintiff to Dr.
neurological
evaluation,

on

May

24,

2011,

the

Agency

referred

Illyas A. Shaikh, M.D., for a consultative

examination.
Plaintiff

(Id.

reported

at

that

seizures since 2004. (Id. at 259).

259-62).
he

has

been

During

the

experiencing

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,
2011. (Id.).

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.
at 261).

Dr. Shaikh also completed a medical source statement

that outlined Plaintiff’s functional physical limitations. (Id.
at 263-68).
2.

Issue
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
the

ALJ

failed

to

explain

what
11

weight,

if

any,

he

gave

to

Plaintiff’s treating physician, Dr. Asghar. (Doc. 13 at 1-4).
Specifically,

Plaintiff

argues

that

although

the

ALJ

fully

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).
Commissioner

further

contends

that

although

Plaintiff

The

argues

that the ALJ erred by failing to give proper weight to the
questionnaire,
questionnaire,

Plaintiff
which

has

does

not

not

explained

contain

any

how

the

work-related

restrictions, would assist Plaintiff in meeting his burden of
proving his disability.
at 9).

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.
Under

the

treating

physician

rule,

the

opinion

of

a

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).
opinion

was

not

bolstered

by

“Good cause” exists where: 1) the
the
12

evidence;

2)

the

evidence

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
that

Plaintiff’s

Further,

in

seizures

establishing

constitute

Plaintiff’s

a
RFC,

severe
the

impairment.

ALJ

expressly

found that due to the risk of seizure activity, Plaintiff was
precluded

from

exposure

to

dangerous

heights

or

dangerous

machinery, climbing, and the operation of automobile equipment.
(Id. at 15).

The ALJ also found that “[d]ue to potential side

effects

medications

from

and

headaches,

the

[plaintiff]

is

limited to understanding, remembering and carrying out simple
one and two step instructions.” (Id.).
Finally, it is noteworthy that Dr. Asghar’s questionnaire
did

not

contain

any

functional

limitations.

Thus,

assuming

arguendo, that the ALJ erred in not expressly stating the weight
13

accorded

Dr.

because

the

Asghar’s

questionnaire,

questionnaire

does

not

the

error

contain

is

any

harmless

functional

limitations let alone limitations that are inconsistent with the
RFC

as

determined

by

the

ALJ.

Accordingly,

any

error

was

harmless. See Wright v. Barnhart, 153 Fed. App’x. 678, 684 (llth
cir.

2005)

(unpublished

specifically
opinions,

state

error

was

the

opinion)
weight

harmless

(although
he

the

afforded

because

the

ALJ
a

did

not

physician’s

physicians

did

not

directly conflict the ALJ’s findings).
V.
For

Conclusion
the

reasons

set

forth

herein,

and

upon

careful

consideration of the administrative record and memoranda of the
parties,

it

is

hereby

ORDERED

that

the

decision

of

the

Commissioner of Social Security denying Plaintiff’s claim for a
period

of

disability,

disability

insurance

benefits,

supplemental security income be AFFIRMED.
DONE this 25th day of September, 2013.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE

14

and