Moore v. Colvin

Filing 20

MEMORANDUM OPINION AND ORDER entered. After considering the administrative record and the memoranda of the parties, it is ORDERED that the decision of the Commissioner be affirmed and that this action be dismissed, as further set out. Signed by Magistrate Judge Bert W. Milling, Jr on 11/15/2016. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ISAAC W. MOORE,

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Plaintiff,
vs.
CAROLYN W. COLVIN,
Social Security Commissioner,
Defendant.

CIVIL ACTION 16-0082-M

MEMORANDUM OPINION AND ORDER
In this action under 42 U.S.C. § 405(g), Plaintiff seeks
judicial review of an adverse social security ruling denying a
claim for disability insurance benefits (Docs. 1, 10).

The

parties filed written consent and this action has been referred
to the undersigned Magistrate Judge to conduct all proceedings
and order judgment in accordance with 28 U.S.C. § 636(c),
Fed.R.Civ.P. 73, and S.D.Ala. Gen.L.R. 73(b) (see Doc. 19).
Oral argument was waived in this action.

After considering the

administrative record and the memoranda of the parties, it is
ORDERED that the decision of the Commissioner be affirmed and
that this action be dismissed.
This Court is not free to reweigh the evidence or
substitute its judgment for that of the Secretary of Health and
Human Services, Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th

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Cir. 1983), which must be supported by substantial evidence.
Richardson v. Perales, 402 U.S. 389, 401 (1971).

Substantial

evidence requires “that the decision under review be supported
by evidence sufficient to justify a reasoning mind in accepting
it; it is more than a scintilla, but less than a preponderance.”
Brady v. Heckler, 724 F.2d 914, 918 (11th Cir. 1984), quoting
Jones v. Schweiker, 551 F.Supp. 205 (D. Md. 1982).
At the time his disability coverage expired, March 31,
2011, Plaintiff was forty-nine years old, had completed high
school and some trade school education, (Tr. Doc. 10, Fact
Sheet), and had previous work experience as a housing inspector
(Tr. 36).

Moore alleges disability due to degenerative disc

disease of the lumbar spine (Doc. 10 Fact Sheet).
Plaintiff applied for disability benefits on May 6, 2013,
asserting a disability onset date of January 1, 2006 (Tr. 17,
145-49).

An Administrative Law Judge (ALJ) denied benefits,

determining that, as of the last day he qualified for disability
benefits, March 31, 2011, Moore was capable of performing his
past relevant work as a housing inspector (Tr. 17-24).
Plaintiff requested review of the hearing decision (Tr. 28), but
the Appeals Council denied it (Tr. 1-5).
Moore claims that the opinion of the ALJ is not supported
by substantial evidence.

Specifically, Plaintiff alleges that:

(1) The ALJ’s residual functional capacity (hereinafter RFC)

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assessment is not supported by substantial evidence; and (2) the
ALJ should have called a medical expert (hereinafter ME) to
testify (Doc. 10).
claims (Doc. 13).

Defendant has responded to—and denies—these
The Court will now summarize the relevant

record evidence.
On June 1, 1992, records from the Department of Veterans
Affairs (hereinafter VA) include a normal lumbar spine x-ray
(Tr. 286, 300-01).
On March 14, 2012, USA Medical Center Emergency Department
records show that Moore was treated for a headache and
generalized achiness; a medium level of back tenderness was
noted (Tr. 246-48).

A brain CT showed likely calcification;

Toradol,1 Norflex,2 and Phenergan3 were prescribed.
On March 24, Mobile Infirmary Medical Center Emergency
Department records show that Plaintiff was treated for
testicular pain diagnosed as epididymitis; Lortab4 was prescribed
(Doc. 235-42).
On September 10, Plaintiff complained of lumbar strain,
exacerbated by sitting, standing, and excessive walking (Tr.

1

Toradol is prescribed for short term (five days or less)
management of moderately severe acute pain that requires analgesia at
the opioid level. Physician's Desk Reference 2507-10 (52nd ed. 1998).
2
Norflex is used to treat muscle spasms and pain.
http://www.webmd.com/drugs/2/drug-6933/norflex-oral/details#uses
3
Error! Main Document Only.Phenergan is used as a sedative, sleep
aid, or to treat nausea, vomiting, or pain.
http://www.drugs.com/phenergan.html
4
Error! Main Document Only.Lortab is a semisynthetic narcotic
analgesic used for “the relief of moderate to moderately severe pain.”
Physician's Desk Reference 2926-27 (52nd ed. 1998).

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273-85; Tr. 378-90).

Delon Nicholas, Physician Assistant

(hereinafter P.A.), found that Moore walked without difficulty
and that his back exam was unremarkable.

The P.A. noted that

Plaintiff had objective pain while performing range of motion
(hereinafter ROM) assessment in forward flexion, extension, and
lateral flexion of the spine; there was no radicular pain and
Moore had no functional loss or impairment.

Plaintiff had

normal strength throughout with no muscle atrophy; reflexes and
sensory were normal.

Straight leg raising was negative.

An x-

ray showed disk space narrowing, degenerative spurring, and
degenerative facet disease at the L5-S1 level; minimal disk
space narrowing was noted at L4-5 level (Tr. 299-300).

Nicholas

noted that the diagnosis of lumbar strain was unrelated to the
x-rays as the strain involved soft tissues (muscles and
ligaments) while the degenerative process involved the discs and
vertebral bodies; the PA found that Moore’s condition would not
impact his ability to work.
On December 30, 2013, Plaintiff went to the VA, complaining
of pain, at level seven on a ten-point scale, in his lower back,
legs, and elbows; he stated he did not believe in medication
(Tr. 376-77).

On January 3, 2014, Moore was encouraged to

exercise regularly and to follow a healthy diet as his weight
had increased and he was obese; blood pressure was elevated (Tr.
370-75).

On March 24, Moore went to the VA for left eye pain

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and painless rectal bleeding; he was diagnosed to have
conjunctivitis (Tr. 365-70).

On April 4, Plaintiff complained

of leg numbness, starting in his lower back and radiating down
into his toes; he walked with a limp and rated his pain at ten
(Tr. 358-64).

Tenderness was noted in the paraspinal region of

L5-6, though muscle tone was normal; straight leg raise was
positive on the right.

Moore also had decreased ROM and

sensation of the right foot/ankle; Flexeril5 was prescribed.

On

April 8, 2014, Plaintiff complained of rectal bleeding, though
denied any rectal pain; he did have lumbosacral pain, radiating
into his right thigh, and eye pain (Tr. 352-58).
his pain at nine; gait was normal.

Moore rated

The Doctor found

conjunctivitis in the left eye and diagnosed anemia and ordered
tests.

On April 15, Plaintiff underwent a stress EKG that

demonstrated no evidence of major ischemia (Tr. 297-99, 342-45).
On the same day, in an assessment before undergoing his
colonoscopy, Moore stated that he was in no pain at that time
(Tr. 346-52).

On April 18, an Optometrist diagnosed a viral

infection; medication was subsequently prescribed (Tr. 332-34,
341-42).

On April 21, Moore was treated for diabetes mellitus

type 2, instructed on diet and exercise, and prescribed
medication; he reported left eye and right leg pain at seven

5
Error! Main Document Only.Flexeril is used along with “rest
and physical therapy for relief of muscle spasm associated with acute,
painful musculoskeletal conditions.” Physician's Desk Reference 145557 (48th ed. 1994).

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(Tr. 334-41).

Body Mass Index was calculated to be 31,6

categorizing Moore as obese.
On April 24, 2014, VA records show that Plaintiff underwent
a colonoscopy because of blood loss anemia; four benign polyps
were removed and diverticulosis was diagnosed (Tr. 314-32, 39196).

On May 7, Moore was given written materials and oral

instruction concerning weight loss, proper diet, and exercise
(Tr. 312-14).

On May 14, Plaintiff complained of continued

right leg pain, rating it as eight; medications (Flexeril and
Ibuprofen) were not helping with the pain and were causing
negative side effects (Tr. 306-10).

The Nurse noted that he

walked without difficulty and was in no apparent distress.
This concludes the Court’s summary of the record evidence.
In bringing this action, Moore first claims that the ALJ’s
RFC assessment is not supported by substantial evidence.

More

specifically, Plaintiff points out that there are no RFC
evaluations in the record from which the ALJ could reach his
conclusions (Doc. 10, pp. 3-5).

The Court notes that Moore has

pointed to specific language in which the ALJ discusses the lack
of evidence:
As for the opinion evidence, no
treating physician has opined that the
claimant is disabled or imposed any
functional limitations related to the

6

http://www.nhlbi.nih.gov/health/educational/lose_wt/BMI/bmicalc.

htm

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claimant’s lumbar strain, degenerative disc
disease, or back pain. There are no
opinions in the record from a treating
provider, examining physician, or nonexamining physician. The above [RFC]
assessment is instead supported by a
preponderance of the most credible evidence
of record. It includes treatment records
from the VA showing no functional
limitations related to the claimant’s back
pain, the dearth of treatment during the
adjudication period, the claimant’s history
of conservative treatment even after the
date last insured, and the claimant’s work
history after the alleged onset date.
(Tr. 23).
The Court notes that “[t]he RFC assessment is a functionby-function assessment based upon all of the relevant evidence
of an individual’s ability to do work-related activities.”
Social Security Ruling 96-8p, Titles II and XVI:

Assessing

Residual Functional Capacity in Initial Claims, 1996 WL 374184,
*3.

The ALJ is responsible for determining a claimant’s RFC.

20 C.F.R. § 404.1546 (2016).

That decision cannot be based on

“sit and squirm” jurisprudence.
513, 518 (11th Cir. 1984).

Wilson v. Heckler, 734 F.2d

However, the Court also notes that

Plaintiff is responsible for providing evidence from which the
ALJ can make an RFC determination.

20 C.F.R. § 404.1545(a)(3).

In his decision, the ALJ reached the following conclusion:
[T]hrough the date last insured, the
claimant had the [RFC] to still perform a
light level of work as defined in 20 C.F.R.

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404.1567(b).7 However, he did not then and
still does not now possess the physical
ability to perform a “full range” of such
work as contemplated within SSR 83-10.
Specifically, the claimant could sit for 2
hours at a time, 6 hours total in an 8-hour
workday, stand for 1½ hours at a time and
for 4 hours total in an 8-hour workday, and
walk for 30-45 minutes at a time, and for 2
hours total in an 8-hour workday. The
claimant could not climb ladders, ropes, or
scaffolds. The claimant could frequently to
occasionally, i.e., 50% of the day, push or
pull using his lower extremities, bend,
stoop, crouch, and kneel. The claimant
could occasionally squat.
(Tr. 20).
Moore claims disability because of degenerative disc
disease of the lumbar spine; it is the only impairment noted
(Doc. 10, Fact Sheet).

The Court notes that the lone evidence

of Moore’s abilities before his date last insured, March 31,
2011, was a normal lumbar spine x-ray from June 1992 (Tr. 286,
300-01).

The next available medical records date to two

emergency room visits, in March 2012, for a headache and

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“Light work involves lifting no more than 20 pounds at a time
with frequent lifting or carrying of objects weighing up to 10 pounds.
Even though the weight lifted may be very little, a job is in this
category when it requires a good deal of walking or standing, or when
it involves sitting most of the time with some pushing and pulling of
arm or leg controls. To be considered capable of performing a full or
wide range of light work, you must have the ability to do
substantially all of these activities. If someone can do light work,
we determine that he or she can also do sedentary work, unless there
are additional limiting factors such as loss of fine dexterity or
inability to sit for long periods of time.” Section 404.1567(b)
(footnote not in original).

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testicular pain (Tr. 235-42, 246-48); though back tenderness8 was
noted, there was no mention of functional limitations or
treatment.

It is only in the next medical note of record,

occurring on September 10, 2012, that Plaintiff complains of
back pain (Tr. 273-85; Tr. 378-90).

The examining P.A. noted

that although back pain was demonstrated in the ROM assessment,
there was no radicular pain, functional loss, or impairment; the
P.A. specifically noted that the impairment would not affect
Moore’s ability to work.

This examination took place more than

seventeen months after Plaintiff’s last insured date.
Moore has not pointed to any medical evidence—much less
evidence existing before March 31, 2011—that suggests that he
was incapable of performing his past light-work job.

Plaintiff

is reminded that he is responsible, under the social security
regulations, for providing evidence from which the ALJ can make
an RFC determination.

The Court finds no merit in Moore’s claim

that the ALJ did not properly assess his RFC.
Plaintiff next claims that the ALJ should have called an ME
to testify.

Moore specifically asserts that an ME should have

been called to determine the date of his disability onset; he
further asserts that the ALJ’s failure to call an ME is evidence
of his failure to develop the record (Doc. 10, pp. 2-3).
In making his argument, Plaintiff states as follows:

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Frankly, the Court believes the record states there is no
tenderness; however, as the note is handwritten and not entirely
clear, the Court gives Moore the benefit of the doubt (see Tr. 247).

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HALLEX I-2-6-70(A) states that “an ALJ is
encouraged to consult with an ME when the
Plaintiff alleges disability that began
before his or her date last insured and the
facts may conceivably support the claim.”
Social Security Ruling 83-20 recognizes that
“in some cases, it may be possible, based on
the medical evidence to reasonably infer
that the onset of a disabling impairment(s)
occurred some time prior to the date of the
first recorded medical examination.”
(Doc. 10, p. 2).
The Court notes that an ALJ “may also ask for and consider
opinions from [ME’s] on the nature and severity of your
impairment(s) and on whether your impairment(s) equals the
requirements of any impairment listed in appendix 1 to this
subpart.”

20 C.F.R. § 404.1527(e)(2)(iii).

Furthermore, the

Eleventh Circuit Court of Appeals requires that "a full and fair
record" be developed by the ALJ even if the claimant is
represented by counsel.
(11th Cir. 1981).

Cowart v. Schweiker, 662 F.2d 731, 735

However, the ALJ “is not required to order a

consultative examination as long as the record contains
sufficient evidence for the [ALJ] to make an informed decision.”
Ingram v. Commissioner of Social Security Administration, 496
F.3d 1253, 1269 (11th Cir. 2007) (citing Doughty v. Apfel, 245
F.3d 1274, 1281 (11th Cir. 2001)).
The Court notes that although the HALLEX provides the
opportunity for an ME to be called, it was not necessary in this

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action as the medical evidence did not support a claim of
disability prior to March 31, 2011, Plaintiff’s last insured
date.

The examining P.A., in September 2012, clearly found that

Moore’s impairments would not affect his ability to work.

Based

on such evidence, it would not have been reasonable, under
S.S.R. 83-20, for an ME to have found a disability onset date
prior to September 2012.

Plaintiff’s claim otherwise is without

merit.
Moore has raised two claims in bringing this action.
are without merit.

Both

Upon consideration of the entire record, the

Court finds "such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion."
at 401.

Perales, 402 U.S.

Therefore, it is ORDERED that the Secretary's decision

be affirmed, see Fortenberry v. Harris, 612 F.2d 947, 950 (5th
Cir. 1980), and that this action be dismissed.

Judgment will be

entered by separate Order.
DONE this 15th day of November, 2016.

s/BERT W. MILLING, JR.
UNITED STATES MAGISTRATE JUDGE

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