Moorer v. Berryhill
Order re: 1 Complaint filed by Preston T. Moorer, II stating that the decision of the Commissioner of Social Security denying Plaintiff's claim for a period of disability, disability insurance benefits, and supplementalsecurity income be AFFIRMED. Signed by Magistrate Judge Sonja F. Bivins on 9/10/18. (mpp) Copies to counsel
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
PRESTON T. MOORER, II,
Acting Commissioner of Social
CIVIL ACTION NO. 17-00247-B
Plaintiff Preston T. Moorer, II (hereinafter “Plaintiff”),
seeks 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 April 11, 2018, the parties
consented to have the undersigned conduct any and all proceedings
in this case.
Thus, the action 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 Federal Rule of
administrative record and the memoranda of the parties, it is hereby
ORDERED that the decision of the Commissioner be AFFIRMED.
Plaintiff filed his application for benefits on August 21,
2014, alleging disability beginning March 16, 2014, based on “severe
(Doc. 11 at 147, 154, 178, 182).
application was denied and upon timely request, he was granted an
administrative hearing before Administrative Law Judge L. Dawn
Pischek (hereinafter “ALJ”) on February 16, 2016.
(Id. at 40).
testimony related to his claims. (Id.).
A vocational expert (“VE”)
also appeared at the hearing and provided testimony.
(Id. at 60).
On May 26, 2016, the ALJ issued an unfavorable decision finding
that Plaintiff is not disabled.
(Id. at 24).
The Appeals Council
denied Plaintiff’s request for review on April 18, 2017.
Therefore, the ALJ’s decision dated May 26, 2016, became the
final decision of the Commissioner.
Having exhausted his administrative remedies, Plaintiff timely
filed the present civil action.
conducted on May 29, 2018.
Oral argument was
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).
The Court’s citations to the transcript in this order refer
to the pagination assigned in CM/ECF.
Issue on Appeal
Whether the ALJ erred in assessing Plaintiff’s
complex regional pain syndrome (“CRPS”)?
III. Factual Background
Plaintiff was born on February 23, 1979, and was thirty-seven
years of age at the time of his administrative hearing on February
(Doc. 11 at 40, 178). Plaintiff graduated from high
school and attended junior college for one year.
(Id. at 46, 374).
Plaintiff last worked as a machine operator for a lumber
company from 2008 to 2009, and for a paper company from 2012 to
(Id. at 59, 191-94).
Plaintiff testified that he has not
worked since he was involved in a motor vehicle accident in March
of 2014. According to Plaintiff, he broke his ankle in the accident
and required multiple surgeries.
(Id. at 46, 374).
testified that he now walks with a boot when he goes out, but he
does not wear the boot around the house.
(Id. at 47).
also testified that he can no longer work due to pain in his ankle,
that his treating physician no longer gives him pain medication,
and that sometimes, he takes over-the-counter pain medication. (Id.
Plaintiff further testified that he can walk for about
forty minutes before he has to sit down.
(Id. at 55).
to Plaintiff, once he sits down, his pain is about a two or three
on a ten-point pain scale.
(Id. at 54).
testified that pain medication and elevating his leg helps the pain.
(Id. at 53, 58).
IV. Standard of Review
In reviewing claims brought under the Act, this Court’s role
is a limited one.
The Court’s review is limited to determining 1)
whether the decision of the Secretary is supported by substantial
evidence and 2) whether the correct legal standards were applied.2
Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990).
may not decide the facts anew, reweigh the evidence, or substitute
its judgment for that of the Commissioner.
F.2d 1065, 1067 (11th Cir. 1986).
Sewell v. Bowen, 792
The Commissioner’s findings of
fact must be affirmed if they are based upon substantial evidence.
Brown v. Sullivan, 921 F.2d 1233, 1235 (11th Cir. 1991); Bloodsworth
substantial evidence is defined as “more than a scintilla, but less
than a preponderance” and consists of “such relevant evidence as a
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
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,
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).
Statutory and Regulatory Framework
benefits must prove his or her disability.
20 C.F.R. §§ 404.1512,
Disability is defined as the “inability to engage in any
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. §§
423(d)(1)(A); see also 20 C.F.R. §§ 404.1505(a), 416.905(a).
evaluation process for determining if a claimant has proven his
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 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.
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.
1005 (11th Cir. 1986).
Jones v. Bowen, 810 F.2d 1001,
At the fourth step, the ALJ must make an
assessment of the claimant’s RFC.
3d 1232, 1238 (llth Cir. 2004).
See Phillips v. Barnhart, 357 F.
The RFC is an assessment, based on
all relevant medical and other evidence, of a claimant’s remaining
ability to work despite his impairment.
See Lewis v. Callahan, 125
F.3d 1436, 1440 (llth Cir. 1997).
If a claimant meets his or her burden at the fourth step, it
then becomes the Commissioner’s burden to prove at the fifth step
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
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)).
The ALJ did not
In his brief, Plaintiff argues that the ALJ erred in failing
to evaluate his complex regional pain syndrome (“CRPS”) under SSR
(Doc. 12 at 1-2).
The Government counters that the ALJ did
discuss Plaintiff’s CRPS but that Plaintiff failed to establish
that it constituted a medically determinable/severe impairment.
supports the RFC.
(Doc. 13 at 4-7).
Having reviewed the record
at length, the Court finds that Plaintiff’s claim is without merit.
An explanation regarding the identification and evaluation of
CRPS under the Social Security Administration rules is provided by
SSR 03-2p which states, as follows:
RSDS/CRPS is a chronic pain syndrome most
often resulting from trauma to a single
extremity. It can also result from diseases,
surgery, or injury affecting other parts of
the body. Even a minor injury can trigger
RSDS/CRPS. The most common acute clinical
manifestations include complaints of intense
pain and findings indicative of autonomic
dysfunction at the site of the precipitating
trauma. Later, spontaneously occurring pain
may be associated with abnormalities in the
characteristic of this syndrome that the
degree of pain reported is out of proportion
to the severity of the injury sustained by the
individual. When left untreated, the signs and
symptoms of the disorder may worsen over time.
determinable impairment when it is documented
by appropriate medical signs, symptoms, and
laboratory findings, as discussed above.
RSDS/CRPS may be the basis for a finding of
established on the basis of an individual’s
statement of symptoms alone.
evaluation, RSDS/CRPS can be
established in the presence of persistent
complaints of pain that are typically out of
proportion to the severity of any documented
precipitant and one or more of the following
clinically documented signs in the affected
region at any time following the documented
• Autonomic instability—seen as changes
in skin color or texture, changes in sweating
(decreased or excessive sweating), changes in
skin temperature, and abnormal pilomotor
• Abnormal hair or nail growth (growth
can be either too slow or too fast);
• Osteoporosis; or
• Involuntary movements of the affected
region of the initial injury.
document persistent limiting pain in an area
where one or more of these abnormal signs has
been documented at some point in time since
determine that RSDS/CRPS is present and
impairment. It may be noted in the treatment
records that these signs are not present
continuously, or the signs may be present at
one examination and not appear at another.
Transient findings are characteristic of
RSDS/CRPS, and do not affect a finding that a
medically determinable impairment is present.
Claims in which the individual alleges
RSDS/CRPS are adjudicated using the sequential
evaluation process, just as for any other
impairment. Because finding that RSDS/CRPS is
a medically determinable impairment requires
the presence of chronic pain and one or more
clinically documented signs in the affected
region, the adjudicator can reliably find that
pain is an expected symptom in this disorder.
Other symptoms, including such things as
extreme sensitivity to touch or pressure, or
abnormal sensations of heat or cold, can also
be associated with this disorder. Given that
a variety of symptoms can be associated with
a medically determinable
impairment, the adjudicator must evaluate the
intensity, persistence, and limiting effects
of the individual’s symptoms to determine the
extent to which the symptoms limit the
individual’s statements about the intensity,
persistence, or functionally limiting effects
substantiated by objective medical evidence,
the adjudicator must make a finding on the
credibility of the individual’s statement
based on a consideration of the entire case
record. This includes the medical signs and
laboratory findings, the individual’s own
statements about the symptoms, any statements
and other information provided by treating or
examining physicians or psychologists and
other persons about the symptoms and how they
affect the individual, and any other relevant
evidence in the case record. Although symptoms
alone cannot be the basis for finding a
medically determinable impairment, once the
individual’s symptoms and the effect(s) of
those symptoms on the individual’s ability to
functional capacity (RFC), as appropriate. If
the adjudicator finds that pain or other
symptoms cause a limitation or restriction
having more than a minimal effect on an
individual’s ability to perform basic work
activities, a “severe” impairment must be
found to exist. See SSR 96-3p, “Titles II and
XVI: Considering Allegations of Pain and Other
Symptoms in Determining Whether a Medically
Determinable Impairment is Severe” and SSR 967p, “Titles II and XVI: Evaluation of Symptoms
Credibility of an Individual’s Statements.”
SSR 03-2p, 2003 SSR LEXIS 2, *17, 2003 WL 22399117; see also Fell
v. Colvin, 2016 U.S. Dist. LEXIS 133243, *9, 2016 WL 5408015, *3
(N.D. Ala. Sept. 28, 2016).
In the instant case, the ALJ acknowledged that Plaintiff had
been diagnosed with CRPS on January 26, 2016, by his treating
orthopedist, Dr. Mark Perry, M.D., after reporting ongoing pain in
his right ankle from a fracture sustained in a motor vehicle
accident on March 16, 2014.
(Doc. 11 at 27, 367, 383).
functional limitations that would significantly limit his ability
to perform basic work activities and, thus, that the condition was
Having carefully reviewed the record, the Court agrees
Plaintiff’s CRPS is non-severe and that the ALJ did not err in
failing to evaluate Plaintiff’s CRPS under SSR 03-2p.
In order for an impairment to be severe, it must be more than
a slight abnormality or a combination of slight abnormalities
“that causes no more than minimal functional limitations.” 20
“significantly limit” an individual’s “ability to do basic work
activities.” 20 C.F.R. § 416.920(c) (emphasis added).
[the] Plaintiff’s burden to prove the existence of a severe
impairment, and she must do that by showing an impact on her
ability to work.”
Marra v. Colvin, 2013 U.S. Dist. LEXIS 105669,
*13-14, 2013 WL 3901655, *5 (M.D. Fla. 2013) (citing Bowen v.
Yuckert, 482 U.S. 137, 146 (1987)); see also Barnhart v. Thomas,
nondisability unless the claimant shows that he has a ‘severe
impairments which significantly limits [the claimant’s] physical
or mental ability to do basic work activities.’”) (quoting §§
404.1520(c), 416.920(c)); McDaniel v. Bowen, 800 F.2d 1026, 1031
(11th Cir. 1986) (“Unless the claimant can prove, as early as step
two, that she is suffering from a severe impairment, she will be
denied disability benefits.”).
As the ALJ found, the record shows, that Plaintiff was involved
in a motor vehicle accident on March 16, 2014, which resulted in a
right ankle fracture requiring multiple surgeries and other medical
procedures performed between March 17, 2014, and December 21, 2015,
to repair the ankle fracture, drain infection, and remove hardware
placed during the earlier surgeries.
(Doc. 11 at 246, 250, 280,
The surgeries and medical procedures were performed by
orthopedic surgeon, Dr. Mark Perry, M.D. (Id. at 242-54, 280, 367,
Following Plaintiff’s initial surgery on March 17, 2014, to
repair the ankle fracture and a second surgery on March 31, 2014,
to perform an open reduction and internal fixation, Plaintiff
developed an abscess in June 2014. Dr. Perry drained the infection,
noting that Plaintiff responded well to the procedure, that he was
on antibiotics, that the wound was healing, that the swelling had
gone down, and that Plaintiff’s “moderate” pain level had also gone
(Id. at 303).
In late July and August 2014, Dr. Perry noted
that Plaintiff was “doing well,” that his pain had improved, that
his incision and drainage area “look[ed] wonderful,” that “the pain
and swelling that [Plaintiff was] having about his ankle [was] to
be expected given this type of injury,” and that he was “pleased
with [Plaintiff’s] clinical healing.”
Dr. Perry advised Plaintiff to take anti-inflammatory
(Id. at 299-301) (emphasis
(Id. at 301).
On October 17, 2014, Plaintiff was
hospitalized for another infection, and Dr. Perry drained the area,
noting that Plaintiff was experiencing “mild to moderate” pain in
his right ankle.
(Id. at 319).
Dr. Perry noted that Plaintiff’s
wound cultures were negative, and Plaintiff was discharged with
antibiotics for home management.
(Id. at 314).
Plaintiff returned in December 2014 reporting “significant”
pain in his right ankle, and Dr. Perry noted tenderness to palpation
On April 8, 2014, following the second surgery, Dr. Perry
noted that Plaintiff’s right ankle was causing him “a lot of pain”
and that Plaintiff was taking high doses of narcotics at that point.
(Doc. 11 at 311). Dr. Perry refilled Plaintiff’s prescription for
Norco but lowered the dosage and instructed Plaintiff to decrease
his use of the medication. (Id.). In May and June 2014, Dr. Perry
refilled Plaintiff’s prescription for Norco and noted Plaintiff’s
pain was “moderate mostly in nature.” (Id. at 306-07).
and hypersensitivity but that the incision area was “healing well.”
(Id. at 337). Dr. Perry refilled Plaintiff’s prescription for Norco
and recommended that he seek pain management from a primary care
physician and return as needed.
Plaintiff did not return
for nine months. In September 2015, Plaintiff returned to Dr. Perry
complaining of pain in his right ankle.
(Id. at 359).
showed “stable” talar fracture without evidence of complication.
On October 20, 2015, Dr. Perry completed a Medical Source
Statement, opining that physical activity would greatly increase
Plaintiff’s pain and cause distraction from task.
(Id. at 357).
However, Dr. Perry further opined that, even with his symptoms,
“answer[ing] a phone.”
Dr. Perry also recommended that the
hardware placed during the earlier surgeries be removed.
On December 21, 2015, Dr. Perry performed a third surgery to
remove the hardware placed in the earlier surgeries, noting that
one of the screws had broken and that internal fixation was causing
ankle impingement, which was causing “significant ankle symptoms.”
(Id. at 367).
The surgery was performed without complications.
At Plaintiff’s post-operative examinations in December 2015
and January 2016, Dr. Perry noted that Plaintiff was “surprised how
good his ankle feels;” that overall, he was “quite pleased with his
result and symptom relief;” that his “incision look[ed] excellent;”
retraction on his superficial peroneal nerve” and that it was
“improving” and “[would] continue to get better;” and that his range
of motion could be “worked on aggressively” with exercises thirty
minutes a day.
(Id. at 360, 362).
In the final treatment note in the record dated January 26,
2016, Dr. Perry diagnosed Plaintiff with CRPS, stating, “I feel
that he has CRPS of his sural and superficial peroneal nerve
distribution and that he will need to be referred for a chronic
pain management doctor.” (Id. at 383).
Dr. Perry noted, however,
that Plaintiff was not having any more symptoms but, rather, was
complaining that his right foot “fe[lt] weird,” that tapping in the
sural nerve region “result[ed] in discomfort to his 4th and 5th toe,”
and that this region “just fe[lt] funny.”
Dr. Perry noted
that Plaintiff’s ankle motion was slightly better than it had been
previously and that Plaintiff was working on his passive range of
In addition to the medical evidence detailed above, on January
29, 2016, consultative examiner, Dr. Andre Fontana, M.D., evaluated
Plaintiff and found that he had poor toe/heel gait on the right and
a limp on the right leg when he walked, that he had reduced range
of motion in his right ankle with some hypersensitivity to touch,
that his motor strength was 4/5 on the right, and that he had good
range of motion of his hips, both knees, and left ankle and foot.
“traumatic arthritis” of the right ankle.
opined, “I feel the patient is limited to standing or walking up to
1 hour a day.
He cannot do any climbing or walking unprotected
He would have difficulty with a lot of overhead work.”
Dr. Fontana also completed a MSS (Physical) form, opining
that Plaintiff could sit for eight hours a day and could stand/walk
for twenty minutes at a time for one hour a day.
(Id. at 378-82).
Dr. Fontana noted that Plaintiff did not require the use of a cane
activities like shopping; that he could walk a block at a reasonable
pace on rough or uneven surfaces; that he could climb a few steps
at a reasonable pace with the use of a single hand rail; and that
he could prepare his own meals and perform his own personal care
The record evidence of Plaintiff’s activities of daily living
also shows that he lived in a house with his girlfriend, that he
could cook, that he took care of pets, that he could take care of
his own personal care needs and did not need reminders to do things,
that he did not drive but went out at least once a day, that he
went to stores, that he got along well with others, handled stress
well, handled changes in routine well, and followed instructions
(Id. at 202-08, 374).
testified that he could stand/walk for thirty to forty-five minutes,
that he was comfortable and experienced no pain when sitting, that
he was doing home exercises, that Dr. Perry no longer prescribed
him pain medication, that he did not see a pain management doctor
because he had no insurance, that he did not seek pain medication
from a primary care physician, that he rarely took over-the-counter
pain medication because he did not like taking medicine, and that
the medication provided relief when taken.
(Id. at 49-58).
According to SSR 03-2p, when longitudinal treatment records
document persistent limiting pain that is out of proportion to the
severity of the injury sustained by the individual, and that pain
is in an area where one or more of the specified, requisite signs
has been documented, the CRPS constitutes a medically determinable
Here, the substantial record evidence shows that
Plaintiff’s pain was neither persistent nor out of proportion to
the severity of his injuries and multiple surgeries to repair his
fractured right ankle.
To the contrary, the evidence shows that
Plaintiff’s pain symptoms improved over time as there was a near
nine-month gap in treatment between December 2014 and September
2015, that his pain was tolerable to the point that he declined
expressly noted “to be expected given this type of injury.”
11 at 299-301).
Therefore, the substantial evidence supports the
ALJ’s determination that Plaintiff’s CRPS was non-severe.
Moreover, SSR 03-2p provides that, “once the disorder has been
established as a medically determinable impairment, the adjudicator
must evaluate the intensity, persistence, and limiting effects of
the individual’s symptoms to determine the extent to which the
Here, the ALJ found that although
Plaintiff was diagnosed with CRPS, it was non-severe; thus, the ALJ
did not discuss SSR 03-2p. However, because the ALJ found that
Plaintiff has the severe impairments of right lower extremity
degenerative disc disease (Doc. 11 at 26), the inquiry did not end.
developing his RFC.
Based on the record evidence detailed above, the Court finds
that substantial evidence supports Plaintiff’s RFC for a range of
sedentary work with the stated restrictions.4
Indeed, there is
nothing in the record which indicates that Plaintiff’s limitations
The ALJ determined that Plaintiff has the RFC to perform a
range of sedentary work with the following restrictions: Plaintiff
can stand twenty minutes at a time or one-hour total in an 8-hour
workday. Plaintiff can occasionally push, pull, and reach overhead.
Plaintiff can frequently reach in other directions.
cannot operate foot controls with his right foot but can
occasionally operate foot controls with his left foot. Plaintiff
can occasionally stoop, but is unable to climb, balance, kneel,
crouch, or crawl. Plaintiff cannot have exposure to unprotected
heights, moving mechanical parts, or vibration. Plaintiff cannot
operate a motor vehicle. (Id. at 28).
exceed those in the RFC.5
Therefore, Plaintiff’s claim must fail.6
consideration of the administrative record and memoranda of the
parties, it is hereby ORDERED that the decision of the Commissioner
security income be AFFIRMED.
DONE this 10th day of September, 2018.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE
The Court notes that even Plaintiff’s treating orthopedist,
Dr. Perry, opined that Plaintiff could work an eight-hour day, forty
hours a week, “answer[ing] a phone,” which is generally consistent
with a reduced range of sedentary work. (Doc. 11 at 357). Likewise,
consultative examiner, Dr. Fontana, opined that Plaintiff could sit
for eight hours a day (id. at 378-82), and Plaintiff testified that
he is comfortable sitting. (Id. at 52).
Although Plaintiff has cited evidence in the record which he
claims supports a finding that he is disabled, that is, at best, a
contention that the record evidence supports a different finding.
That is not the standard on review. The issue is not whether there
is evidence in the record that would support a different finding,
but whether the ALJ’s finding is supported by substantial evidence.
See Figueroa v. Commissioner of Soc. Sec., 2017 U.S. Dist. LEXIS
181734, *15-16, 2017 WL 4992021, *6-7 (M.D. Fla. Nov. 2, 2017)
(“Although Plaintiff cites to certain test results, notes, and
physical therapy findings as support for her contention that ‘there
were objective medical findings that support the doctor’s opinions
about [her] limitations’ . . ., this is, at best, a contention that
the record could support a different finding. This is not the
standard on review. The issue is not whether a different finding
could be supported by substantial evidence, but whether this finding
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