Moore v. Colvin
MEMORANDUM OPINION AND ORDER denying 13 Opposed MOTION for Summary Judgment , granting 15 Cross MOTION for Summary Judgment (Signed by Judge George C Hanks, Jr) Parties notified.(dperez, 3)
United States District Court
Southern District of Texas
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
NANCY A. BERRYHILL,1 ACTING
COMMISSIONER OF SOCIAL
September 29, 2017
David J. Bradley, Clerk
§ CIVIL ACTION NO. 3:16-CV-035
MEMORANDUM OPINION AND ORDER
Valarie Moore has filed this lawsuit to appeal a decision denying her applications
for social security disability benefits and supplemental security income under Title II and
Title XVI of the Social Security Act.
FACTUAL AND PROCEDURAL BACKGROUND
Moore was born on April 2, 1970, and she completed high school. On April 30,
2014, she applied for social security disability benefits, alleging that she became disabled
on July 1, 2013. She also applied for supplemental security income. At the time she
applied, Moore alleged that she was disabled because of a history of stroke, problems
with balance and coordination, heart problems, blood pressure problems, depression, and
chronic pain. She later reported that her disabilities had worsened, specifically her heart
problems and problems with balance. Moore reported she has weakness in her right arm
Carolyn W. Colvin was the Commissioner of the Social Security Administration (―SSA‖) at the
time that Plaintiff filed this case but no longer holds that position. Nancy A. Berryhill is Acting
Commissioner of the SSA and, as such, is automatically substituted as Defendant. See FED. R.
CIV. P. 25(d).
and leg, short term memory loss, difficulties processing information, and difficulty
Her claims were denied initially, and again on reconsideration. Moore sought a
hearing before an administrative law judge (―ALJ‖). On July 16, 2015, ALJ Thomas G.
Norman held a hearing at which Moore and her counsel appeared. An impartial
vocational expert (―VE‖) also testified before the ALJ. At the hearing, the ALJ admitted
exhibits into the record without objection The ALJ also admitted evidence after the
hearing, which he considered when making his decision.
On September 2, 2015, ALJ Norman issued a decision denying Moore‘s
application. The Appeals Council confirmed the denial, and this action followed.
Summary of the ALJ’s Decision
The ALJ‘s decision followed the usual five-step process. First, the ALJ found that
Moore had not engaged in substantial gainful activity since July 1, 2013, her alleged date
of disability. Second, ALJ Norman found that Moore suffered from the following severe
impairments: ―post cerebral vascular accident, history of congestive heart failure, atrial
fibrillation, obesity and depression.‖ He found that Moore‘s impairments of hypertension
and hypothyroidism were not ―severe.‖
Third, ALJ Norman evaluated all of Moore‘s impairments, and found that Moore‘s
impairments, alone or in combination, did not meet or medically equal the severity of one
of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. In this section of
his decision, ALJ Norman discussed the severity of Moore‘s mental impairments, finding
that the severity of her mental impairments did not meet or medically equal the severity
of the criteria in section 12.04. The ALJ noted that he had considered the ―paragraph B‖
criteria, and made several findings regarding the severity of her mental impairments with
respect to these criteria. He found that Moore had only mild restrictions in activities of
daily living, particularly relying upon Moore‘s statements that she is able to take care of
her personal needs with some difficulty, prepares her meals, performs household chores,
and shops. Similarly, he found that Moore‘s statements also supported a finding that she
had only mild difficulties in social functioning. With regard to concentration, persistence
or pace, ALJ Norman found that Moore had moderate difficulties. He noted that Moore
reported difficulties in sustaining attention, but that she also reported shopping,
performing household chores, engaging in hobbies and interests, and watching television.
He also noted that Moore was able to count change, pay bills, use a checkbook and
handle a savings account.
At this point, ALJ Norman assessed Moore‘s residual functional capacity ―RFC‖
and found that she had the RFC to perform sedentary work, except that she can stand and
walk for 4 hours, and sit for approximately 6 hours out of an 8-hour day. He found that
Moore was not able to climb ladders, but that she could occasionally balance, stoop,
kneel, crouch, crawl and climb ramps and stairs. He also found that she could
occasionally reach, handle and finger with her right arm. As to her mental RFC, some of
ALJ Norman‘s findings were that Moore could understand, remember and carry out only
simple instructions, make simple work-related decisions; and attend and concentrate for
extended periods on simple tasks. ALJ Norman reviewed Moore‘s reported symptoms,
but he found that the objective medical evidence did not support the full spectrum of
Moore‘s allegations regarding their effect upon her ability to perform work. He
particularly found that the medical records ―failed to document any objective clinical or
diagnostic findings that would preclude the performance of sedentary work as set forth in
ALJ Norman then reviewed the medical evidence regarding Moore‘s physical
symptoms, beginning with Moore‘s ―cerebral vascular accident‖ and implantation of a
cardio-defibrillator in 2005. He also reviewed treatment records and objective tests from
July 2012, September 2012, October 2012, September 2013, October 2013, December
2013, January 2014, April 2014, June 2014, July 2014, June 2015, and July 2015. ALJ
Norman noted Moore‘s visits with her treating physician, Dr. George Kevorkian, in
December 2013 and June 2014, and her visit with consultative examiner Raymond
Alexander in July 2014.
He next reviewed the treatment and records regarding Moore‘s mental status. He
noted that, although Moore had been prescribed Lexapro, there was no medical evidence
from that prescriber and no statements ―from treating sources regarding what symptoms,
if any, that the claimant has actually displayed.‖ ALJ Norman reviewed the records
regarding the consultative medical examination by Dr. Julie Swanson in July 2014.
As to medical opinions in the record, ALJ Norman reviewed Dr. Kevorkian‘s
opinion from November 2014, in which Dr. Kevorkian opined that Moore was able to
work no more than 20 hours per week. ALJ Norman gave this opinion ―little weight‖
however, because Dr. Kevorkian ―failed to provide a function-by-function assessment of
the claimant‘s work-related limitations. Moreover, the doctor failed to provide any basis
or reasoning as to why he was limiting the claimant to working only 20 hours per week.‖
Further, ALJ Norman noted that Dr. Kevorkian‘s treatment relationship with Moore was
―extremely limited.‖ ALJ Norman also accorded ―little weight‖ to the opinions of Dr.
Julie Swanson, explaining that she had ―simply noted that [Moore] had a ‗moderate‘
ability to make occupational and personal decisions . . . and failed to provide a definitive
assessment of [Moore‘s] work-related limitations.‖ Finally, with respect to Dr.
Alexander, although ALJ Norman gave ―great weight‖ to most of Dr. Alexander‘s
opinions, he gave ―little weight‖ to Dr. Alexander‘s opinion that Moore was unable to lift
or carry objects, finding that this opinion was inconsistent with his examination that had
revealed only ―mild‖ weakness of Moore‘s right upper arm and extremities. ALJ Norman
gave ―great weight‖ to two State Agency psychiatrists, and to two state agency reviewing
After assessing Moore‘s RFC, ALJ Norman found that she was unable to perform
her past relevant work as a special education teacher. However, in light of her age (43
years old at the time of the alleged disability onset), education, work experience, and
RFC, ALJ Norman found that jobs existed in significant numbers in the national
economy that Moore could perform. He relied upon the VE‘s testimony that a
hypothetical person of Moore‘s background and RFC could work as call out operator,
escort vehicle driver, and surveillance system monitor, and that these jobs existed in
significant numbers in Texas and in the national economy.
Moore now contends that the ALJ‘s decision contains several errors and should be
reversed.2 First, Moore contends that Dr. Alexander performed his consultative exam and
issued his opinions in 2014, but he did not have the opportunity to review what she
contends is important medical evidence from her treatment that was submitted in June
and July 2015. Pointing to SSR 96-5P, Moore contends that the ALJ erred in relying on
Dr. Alexander‘s opinions because they were formed without the full spectrum of medical
evidence that was before the ALJ. Second, Moore contends that ALJ Norman‘s physical
and mental RFC assessment conflicts the medical evidence in several places, and that
ALJ Norman improperly discounted opinions from Dr. Swanson as well as Moore‘s
treating physician, Dr. Kevorkian. Moore contends these errors led to an erroneous RFC,
which in turn caused ALJ Norman to further err when he found that Moore could perform
jobs listed by the VE. Moore argues that, if the RFC assessment had been properly
formulated to include her true level of restrictions, ALJ Norman would have been
obligated to find that she was disabled.
SUMMARY JUDGMENT STANDARD
Rule 56 of the Federal Rules of Civil Procedure mandates the entry of summary
judgment, after adequate time for discovery and upon motion, against a party who fails to
make a sufficient showing of the existence of an element essential to the party‘s case, and
on which that party will bear the burden at trial. Celotex Corp. v. Catrett, 477 U.S. 317,
322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Little v. Liquid Air Corp., 37 F.3d 1069,
Moore‘s briefing is sometimes very difficult to follow. The Court has responded to her
arguments, but has renumbered or reorganized them to proceed in a more logical fashion.
1075 (5th Cir. 1994). Summary judgment ―should be rendered if the pleadings, the
discovery and disclosure materials on file, and any affidavits show that there is no
genuine issue as to any material fact and that the movant is entitled to judgment as a
matter of law.‖ FED. R. CIV. P. 56(a); Celotex, 477 U.S. at 322–23; Weaver v. CCA
Indus., Inc. 529 F.3d 335, 339 (5th Cir. 2008). ―An issue is material if its resolution could
affect the outcome of the action. A dispute as to a material fact is genuine if the evidence
is such that a reasonable jury could return a verdict for the nonmoving party.‖ DIRECTV
Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 2006) (internal citations and quotation marks
STANDARD OF REVIEW
Judicial review of the ALJ‘s final decision under 42 U.S.C. § 405(g) is limited to
determining whether the ALJ‘s decision is supported by substantial evidence in the
record and whether the proper legal standard was used in evaluating the evidence.
Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir.1994), cert. denied, 514 U.S. 1120, 115
S.Ct. 1984, 131 L.Ed.2d 871 (1995); Anthony v. Sullivan, 954 F.2d 289, 292 (5th Cir.
1992). Substantial evidence is such evidence that a reasonable mind might accept as
adequate to support the decision. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct.
1420, 28 L.Ed.2d 842 (1971). The Court must affirm the ALJ‘s final decision where
substantial evidence supports the ALJ‘s decision and the Commissioner followed the
relevant legal standards. See Higginbotham v. Barnhart, 405 F.3d 332, 335 (5th
Cir.2005). Reversal is appropriate only where no credible evidentiary choices support the
Commissioner‘s decision. See Johnson v. Bowen, 864 F.2d 340, 343–14 (5th Cir. 1988).
This Court may not reweigh the evidence, try the issues de novo, or substitute judgment
for the Commissioner‘s finding. Audler v. Astrue, 501 F.3d 446, 447 (5th Cir. 2007).
A. Statutory Basis for Benefits
Social Security disability insurance benefits are authorized by Title II of the Social
Security Act. The disability insurance program provides income to individuals who are
forced into involuntary, premature retirement, provided they are both insured and
disabled, regardless of indigence. See 42 U.S.C. § 423(c) (definition of insured status); 42
U.S.C. § 423(d) (definition of disability).
SSI benefits are authorized by Title XVI of the Social Security Act and provide an
additional resource to the aged, blind, and disabled to assure that their income does not
fall below the poverty line. 20 C.F.R. § 416.110. Eligibility for SSI is based on proof of
disability and indigence. See 42 U.S.C. § 1382(c)(a)(3) (definition of disability); 42
U.S.C. § 1382(a) (financial requirements). Although these are separate and distinct
programs, applicants to either program must prove ―disability‖ under the Act. See 42
U.S.C. § 423(d)(1)(A) (disability insurance); 42 U.S.C. § 1382(c)(3)(A)(SSI). The law
and regulations governing the determination of disability are the same for both programs.
Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994).
B. Determination of Disability
Under the Social Security Act, a ―disability‖ is defined as the ―inability to engage
in 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 12 months.‖ 42 U.S.C.
§ 423(d)(1)(A). A claimant is disabled ―only if his physical or mental impairment or
impairments are of such severity that he is not only unable to do his previous work but
cannot, considering his age, education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy....‖ Id. § 423(d)(2)(A). A
―physical or mental impairment‖ is an anatomical, physiological, or psychological
abnormality demonstrable by acceptable clinical and laboratory diagnostic techniques.
Id.; 42 U.S.C. § 1382c(a)(3) (B).
The five-step ―sequential evaluation‖ process for determining disability is set out
in the Commissioner‘s regulations. The steps are: (1) Is the claimant currently performing
substantial gainful activity? (2) Does the claimant have a severe impairment? (3) Does
the impairment meet or equal an impairment listed in Appendix 1? (4) Does the
impairment prevent the claimant from doing past relevant work? (5) Does the impairment
prevent the claimant from doing any other work? Audler v. Astrue, 501 F.3d 446, 447–48
(5th Cir. 2007) (summarizing C.F.R § 404.1520(a)(4)(i)-(v)). If, at any step, the ALJ
determines the claimant to be disabled, the determination is conclusive and the inquiry
The burden of establishing disability rests with the claimant for the first four steps,
and then shifts to the Commissioner to show that there is other substantial work in the
national economy that the claimant is able to perform. Id. The Commissioner‘s analysis
at steps four and five is based on the assessment of the claimant‘s RFC, or the work a
claimant still can do despite his or her physical and mental limitations. Perez v. Barnhart,
415 F.3d 457, 461–62 (5th Cir. 2005); 20 C.F.R. §§ 404.1545 and 416.945. The
Commissioner assesses the RFC before proceeding from step three to step four. Id. Once
the Commissioner shows that a claimant is able to perform a significant number of jobs
in the national economy, the burden shifts back to the plaintiff to rebut the finding. Id.
A. Did the ALJ err by relying on medical opinions from physicians who did
not have an opportunity to review all of the medical evidence in the record
that the ALJ considered?
On July 29, 2014, Dr. Raymond Alexander conducted a consultative medical
exam. He interviewed Moore and took her medical history, noting complaints of ―stroke,
high blood pressure and heart problems and balance/coordination issues.‖ Moore reported
that she had right facial weakness and difficulty standing and difficulty with gait, as well
as ―frequent falls‖ since having a reaction to Warfarin after 2005. Dr. Alexander
performed a physical exam and noted his findings. He noted ―some mild right-sided
weakness in the upper and lower extremities‖ and that Moore‘s ―[g]ait is slow‖ and she
―uses a cane all the time.‖ He also reported that Moore was unable to ―walk on her heels
or toes or do tandem walking.‖ Based on these notes and his exam, Dr. Alexander gave a
detailed opinion as to Moore‘s functional capacity.
As noted above, the hearing before the ALJ took place on July 16, 2015—almost
one year after Dr. Alexander‘s consultative exam. However, just one month before the
hearing, Moore‘s counsel mailed a letter to Leachman Cardiology, requesting Moore‘s
entire medical chart from December 2014 through June 2015. That letter, along with 111
pages of records from Leachman Cardiology, was submitted to the ALJ before the
hearing and the medical records were admitted before the hearing began. The Court has
reviewed these records. Some are hand-written notes recording individual office visits to
Leachman Cardiology, others are lab and diagnostic reports, and others are duplicate
records from other health care providers. Moore‘s argument appears to be that, because
the state agency physicians such as Dr. Alexander did not have the benefit of these
records, their opinions should be disregarded under SSR 96-5P.
The Court notes that, out of 111 pages provided by Leachman Cardiology,
Moore‘s motion for summary judgment points to just one page containing hand-written
notices from an office visit to Leachman Cardiology on July 2, 2015, which states that
Moore reported ―doing poorly – issues with multiple falls at home over the past year.
Unnoticed by family, etiology unclear. Slow, shuffling gait.‖ Tr. 387. These notes do not
contain limitations or concerns that differ significantly different from those noted by Dr.
Moore also points to records regarding her hospitalization in June 2015—one
month before the ALJ hearing—contending that they show a long list of serious
conditions that should have been evaluated by state agency physicians. She contends that
the ALJ erred by considering the opinions of state agency physicians who did not have
the opportunity to review these medical records, and by failing to obtain an updated
The Court begins with the principle that, while an ALJ ―may also ask for and
consider opinions from medical experts on the nature and severity of your impairment(s)
and on whether your impairment(s) equals the requirements of [a listing],‖ an ALJ ―[is]
not bound by any findings made by State agency medical or psychological consultants.‖
20 C.F.R. §§ 404.1527(e)(2)(i), (iii) (emphasis added); see also Dominguez v. Astrue, 286
Fed. App‘x 182, 186 (5th Cir. 2008) (―the use and consideration of medical expert
testimony is solely within the discretion of the ALJ.‖). The determination of whether or
not a claimant satisfies the conditions of a listing is ―one reserved to the Commissioner.‖
See 20 C.F.R. § 404.1527(d)(2); see also Cain v. Barnhart, 193 Fed. App‘x 357, 361 (5th
Cir. 2006); and SSR 96–6p at *3.
There is no doubt that an ALJ does have ―a duty to fully and fairly develop the
facts relative to a claim for disability benefits.‖ Carey v. Apfel, 230 F.3d 131, 142 (5th
Cir.2000). However, reversible error for an ALJ‘s failure to develop the record requires a
showing of prejudice. Id. Therefore, Moore must ―adduce [ ] evidence that might have
altered the result.‖ Id. She has produced no such evidence. See Jones v. Astrue, 691 F.3d
730, 735 (5th Cir.2012) cert. denied, ––– U.S. ––––, 133 S.Ct. 953, 184 L.Ed.2d 728
(U.S.2013) (―A mere allegation that additional beneficial evidence might have been
gathered had the error not occurred is insufficient to meet this burden.‖). Instead, the
―new medical evidence‖ she points to shows the same or similar conditions and
symptoms listed by Dr. Alexander, and which were considered by state agency
physicians and then by the ALJ. Moore does not explain how the ―new‖ evidence she
points to, which was actually considered by the ALJ, would have changed the result if it
had also been considered by state agency examiners.
B. Does the RFC assessment conflict with the medical evidence in the record?
Next, Moore complains that the ALJ‘s RFC conflicts with the medical evidence.
She complains that the ALJ did not properly consider her need to use a cane, nor did he
agree with the state agency physician‘s findings as to her mental and physical limitations,
instead improperly discounting opinions from Dr. Alexander and Dr. Swanson as well as
Moore‘s treating physician, Dr. Kevorkian.
1. Physical RFC: Limited to 20 Hours? Use of Cane?
ALJ Norman found that Moore had the RFC to perform sedentary work, 3 except
that she can stand and walk for 4 hours, and sit for approximately 6 hours out of an 8hour day. He found that Moore was not able to climb ladders, but that she could
occasionally balance, stoop, kneel, crouch, crawl and climb ramps and stairs. He also
found that she could occasionally reach, handle and finger with her right arm.
Moore is correct that the ALJ did not limit her to only 20 hours of work per week,
and that his RFC formulation did not specifically include her use of a cane.
In addition to his review of the medical evidence, the ALJ made two important
findings that are germane here. The ALJ found that Moore‘s ―statements concerning the
intensity, persistence and limiting effects of [her] symptoms are not entirely credible . . .‖
He made this finding, in part, because he also found that ―[t]he record does not support
the claimant‘s allegations of ongoing and disabling symptoms. Specifically, records
Under the applicable regulations, sedentary work is defined as ―lifting no more than 10 pounds
at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools.‖
20 C.F.R. § 404.1567(a), 416.967(a). Social Security Ruling (―SSR‖) 96-9p emphasizes that the
ability to lift and carry ten pounds is necessary for the unskilled sedentary occupational base.
SSR 96-9p, 1996 WL 374185, at *6 (July 2, 1996).
submitted by treating and examining sources fail to document any objective clinical or
diagnostic findings that would preclude the performance of sedentary work as set forth in
this decision.‖ Second, the ALJ noted that Moore ―has also acknowledged activities of
daily living that are inconsistent with her allegations of ongoing and disabling symptoms.
Specifically, the claimant acknowledged in written statements that she takes care of her
personal needs, prepares meals, shops, performs various household chores including
cleaning, laundry and vacuuming, and socializes with others on a regular basis.‖
Moore complains that the ALJ failed to include the 20-hour per week limitation
set forth by her treating physician, Dr. C. George Kevorkian, and the ALJ instead stated
that he gave ―little‖ weight to the opinion. The ―opinion‖ from Dr. Kevorkian that Moore
points to is a three-sentence letter written by Dr. Kevorkian on his letterhead on
November 10, 2014. Tr. 556. In its entirety, it states ―To Whom It May Concern: Ms.
Valarie Moore/ 04-02-1970, is a patient under my care in the Physical Medicine and
Rehabilitation Clinic through Baylor College of Medicine. Ms. Moore is able to work
with a limitation of no more than 20 hours per week. Please do not hesitate to call with
questions, comments or concerns.‖ The ALJ states that he gave this opinion little weight
because Dr. Kevorkian did not provide a function-by-function assessment of claimant‘s
work-related limitations, failed to provide a basis for his opinion that Plaintiff can only
work 20 hours per week, and had an ―extremely limited‖ treatment relationship with
Moore argues that the ALJ failed to comply with the requirement that an ALJ may
reject the opinion of a treating physician only after performing a detailed analysis of the
treating physician‘s views and discussing factors such as: 1) examining relationship; 2)
treatment relationship; 3) length of treatment relationship and frequency of examination;
4) nature and extent of the treatment relationship; 5) supportability; 6) consistency; and
7) specialization. 20 C.F.R. §§ 404.1527(d) and 416.927(d). Although Moore is
technically correct that the ALJ did not devote a great deal discussion of these factors in
his decision to give Dr. Kevorkian‘s opinion ―little weight,‖ the Court notes the ALJ‘s
analysis on this point was longer and more detailed than Dr. Kevorkian‘s actual
―opinion.‖ See, e.g., Foster v. Astrue, 410 Fed. App‘x. 831, 833 (5th Cir. 2011) (finding
good cause to assign little weight to a treating physician‘s questionnaire opinion ―due to
its brevity and conclusory nature, lack of explanatory notes, or supporting objective tests
and examination . . .‖). The ALJ did address the actual medical records from Dr.
Kevorkian in greater detail, and had noted a gap in treatment. Accordingly, ALJ did not
err by assigning Dr. Kevorkian‘s ―opinion‖ little weight.
Moore also contends that the ALJ failed to consider her need to use a cane, and
failed to include that need for a cane in her RFC. Moore claims that her need for a cane
was supported by physician reports at the initial and reconsideration levels of her
disability application, and by the opinion of Dr. Alexander, the state agency examining
physician, who stated that Moore ―did not appear to be able to ambulate safely without
the cane.‖ The first of these statements about her need for a cane, however, are based
upon Moore‘s self-report that she was prescribed a cane and that she needed a cane to
walk. Further, although Dr. Alexander opined that Moore‘s physical abilities were limited
by her ―weakness and risk of fall,‖ his actual exam findings showed that Moore‘s
musculoskeletal exam was ―within normal limits‖ and that she had only ―mild right-sided
weakness in the upper and lower extremities,‖ and although her gait was ―slow,‖ she did
not have a tremor and instead had ―adequate grip strength and ability to reach, handle,
finger and feel.‖ In fact, evidence in the record showed that Moore walked ―with no
difficulties‖ after physical therapy in 2014. Moore‘s self-reported activities included
household chores such as cleaning, laundry, and vacuuming. And Moore herself testified
that she was able to walk without her cane or walker for a distance of ―a couple of feet.
Maybe about five, ten feet.‖
In light of all the evidence in the record, the ALJ did not err by failing to account
for Moore‘s use of a cane when formulating her RFC. See, e.g., Thomas v. Astrue, 277
Fed. App‘x. 350, 353 (5th Cir. 2008) (citing Myers v. Apfel, 238 F.3d 617, 621 (5th Cir.
2001)) (―As a result of these inconsistencies, the ALJ was within his discretion to
discount Dr. Riley‘s records as being internally inconsistent and inconsistent with the
overall record.‖); Carrier v. Sullivan, 944 F.2d 243, 247 (5th Cir. 1991) (ALJ may
disregard claimant‘s subjective symptomology to the extent it is inconsistent with the
record evidence under a proper exercise of the discretion as the finder of fact); Wilson v.
Colvin, 2014 WL 4230003, at *4 (N.D. Tex. Aug. 25, 2014) (―To the extent Dr.
Shamsnia‘s treatment notes contained medical opinions that were inconsistent with the
rest of the medical opinions on the record, the ALJ had discretion to choose among the
conclusions of different examining physicians.‖)
2. Mental RFC: Moderate or Mild Limitations in Activities of Daily Living?
Ability to Make Decisions?
In arguing that the mental RFC is incorrect, Moore contends that the state agency
examining psychiatrists opined that she had ―moderate‖ limitations in concentration,
persistence and pace, as well as ―moderate‖ restrictions in activities of daily living, but
the ALJ found that her restrictions in activities of daily living were only ―mild.‖ These
arguments somewhat conflate mental RFC with the ALJ‘s assessment of the ―severity‖ of
Moore‘s mental impairments,4 ―although the RFC assessment ‗reflects‘ the severity
analysis, and so must be consistent with it.‖ Cruz v. Colvin, CV H-15-3389, 2016 WL
8672925, at *3 (S.D. Tex. Dec. 28, 2016), report and recommendation adopted sub nom.
Cruz v. Colvin, CV H-15-3389, 2017 WL 1274296 (S.D. Tex. Jan. 27, 2017).
In evaluating the severity of Moore‘s mental impairments, i.e., depression, the
ALJ found that Moore had mild restrictions in activities of daily living, noting that Moore
herself reported that ―she takes care of her personal needs with some difficulty, prepares
meals, performs household chores, and shops.‖ The ALJ found that Moore had mild
difficulties in social functioning, again noting that Moore herself ―denied having any
difficulties getting along with others, and has never been fired or laid off from a job due
to difficulties with others.‖ The ALJ again noted Moore‘s own statements that she
―Under agency regulations then in place, mental impairments were evaluated under four broad
functional areas known as the ‗paragraph B‘ criteria: (1) activities of daily living; (2) social
functioning; (3) concentration, persistence, or pace; and (4) episodes of decompensation. The
degree of limitation in each category is based on a five point scale: None, mild, moderate,
marked, or extreme. A rating of ‗none‘ or ‗mild‘ in all four areas will generally result in a
conclusion that the impairment is not severe.‖ Patel v. Berryhill, 4:16-CV-02066, 2017 WL
4155463, at *2 (S.D. Tex. Sept. 19, 2017), citing 20 C.F.R. § 404.1520a(d)(1) (also noting, ―The
SSA updated its mental disability listings in 2017, and replaced the term ―episodes of
decompensation‖ with the term ―adapt or manage oneself.‖).
―shops, and spends time with others.‖ With regard to concentration, persistence or pace,
the ALJ found that Moore had ―moderate‖ difficulties. He noted that she reported
difficulties sustaining attention in spite of her self-reported activities and hobbies, but that
she was able to ―count change, pay bills, use a checkbook/money order, and handle a
savings account,‖ all of which the ALJ found were ―activities requir[ing] the ability to
maintain concentration, persistence or pace for extended periods.‖ He also found that
Moore‘s activities of daily living were evidence that she could ―follow instructions and
complete tasks once begun.‖
For Moore‘s mental RFC, the ALJ found that Moore could understand, remember
and carry out only simple instructions, make simple work-related decisions; respond
appropriately to supervisors, co-workers and the public; respond appropriately to changes
in unusual work situations; handle changes in routine work setting appropriately; and
attend and concentrate for extended periods on simple tasks. In addressing her mental
RFC, the ALJ noted that Moore had been prescribed Lexapro, but that the medical
records also showed ―little evidence‖ of actual treatment for mental issues, and ―no
statements from treating sources regarding what symptoms, if any, [Moore] has actually
displayed. The ALJ also addressed the findings and opinion of consultative examiner Dr.
Julie Swanson, discussing those findings in some detail.
Still, Moore complains that the ALJ improperly gave ―little weight‖ to one part of
Dr. Swanson‘s opinion, which was that Moore had a ―moderate‖ ability to make
occupational and personal decisions. The ALJ found that Dr. Swanson‘s opinion did not
include a ―definitive assessment of the claimant‘s work-related limitations.‖ The ALJ
instead assessed a more limited RFC for Moore, finding that Moore could make only
―simple work-related decisions.‖ The ALJ based this assessment, in part, on his decision
to give ―great weight to [the] assessments completed by State Agency psychiatrists, Leela
Reddy, M.D., and Susan Thompson, M.D., which reflect that the claimant is able to
understand, remember and carryout simple instructions, make simple decisions, attend
and concentrate for extended periods and interact adequately with coworkers and
supervisors.‖ The ALJ further noted that ―[t]hese opinions are consistent with the
longitudinal record as well as the claimant‘s statements regarding daily activities.‖
In light of the evidence in the record, and in light of the findings in Dr. Swanson‘s
report, the ALJ did not err in assigning the ―little weight‖ to Dr. Swanson‘s opinion on
C. Did the ALJ pose a flawed hypothetical question to the VE?
ALJ Norman found that there are jobs that Moore can perform, and that these jobs
exist in significant numbers in the national economy. In making this finding, he relied
upon the VE‘s testimony that a hypothetical person of Moore‘s background and RFC
could work as a call out operator, escort vehicle driver, and surveillance system monitor,
and that these jobs existed in significant numbers in Texas and in the national economy.
Moore argues that the ALJ‘s hypothetical question to the VE was fatally flawed because
it did not include Moore‘s use of a cane while walking or standing, her limitation to 20
hours per week, her moderate limitations in the activities of daily living, and her
limitations with respect to lifting and carrying objects due to her use of a cane. The Court
has already addressed these issues above with respect to the RFC assessment. Because
these limitations are not supported by the record, the ALJ did not err by not including
these limitations in the hypothetical question to the VE.
Next, Moore argues that the ALJ‘s finding that she could perform the jobs of call
out operator and surveillance monitor are in conflict with his RFC assessment that Moore
could understand, remember and carry out only simple instructions; make simple workrelated decisions, and attend and concentrate for extended periods on only simple tasks.
Moore also argues she cannot perform the job of escort vehicle driver because she has
been instructed not to drive.
For the jobs of call out operator and surveillance monitor, Moore contends that the
ALJ‘s RFC formulation means that she cannot perform the jobs listed by the VE and the
ALJ. She contends that these jobs have a ―Reasoning Level‖ of 3 listed in the Dictionary
of Occupational Titles, and the ALJ limited her to ―simple‖ work. However, Moore‘s
contention that she is absolutely precluded from any job with a Reasoning Level 3 is not
supported by the language of the regulations at issue. See, e.g., Ruffin v. Colvin,
3:16CV18-DPJ-FKB, 2017 WL 536549, at *5 (S.D. Miss. Feb. 8, 2017) (―The problem is
that the Reasoning Levels and the RFC are not neatly aligned. . . . So while the top of
DOL Reasoning Level three might arguably surpass an RFC that limits work to tasks
involving one-to two-step instructions, it is not apparent that such limitations exclude the
range that Reasoning Level three addresses.‖).
An ―ALJ may rely upon the vocational expert‘s testimony provided that the record
reflects an adequate basis for doing so.‖ Carey v. Apfel, 230 F.3d 131, 146 (5th Cir.
2000). The Fifth Circuit has noted that, in the case of conflicts between the DOT and a
VE‘s testimony, ―the categorical requirements listed in the DOT do not and cannot
satisfactorily answer every such situation.‖ Id. at 146. ―Neither the DOT nor the
[vocational expert] evidence automatically ‗trumps‘ when there is a conflict.‖ SSR 00-4p,
2000 WL 1898704, at *2. If there is a conflict, implicit or express, SSR-04p states that
the ―adjudicator must resolve the conflict by determining if the explanation given by the
VE or VS is reasonable and provides a basis for relying on the VE or VS testimony rather
than on the DOT information.‖ Id.
Here, the ALJ asked the VE whether the information provided conflicted with the
DOT. The VE stated that it did not. In fact, the VE listed these jobs as a Reasoning Level
3 during the hearing, and Moore‘s counsel did not cross-examine the VE on whether that
Reasoning Level was appropriate in light of the hypothetical the ALJ had just given. The
Fifth Circuit has recognized in such circumstances that ―claimants should not be
permitted to scan the record for implied or unexplained conflicts between the specific
testimony of an expert witness and the voluminous provisions of the DOT, and then
present that conflict as reversible error, when the conflict was not deemed sufficient to
merit adversarial development in the administrative hearing.‖ Carey v. Apfel, 230 F.3d
131, 146 (5th Cir. 2000).
This last point is also fatal to Moore‘s argument that she cannot work as an escort
vehicle driver—her counsel failed to question the VE on this issue. Instead, the only
question Moore‘s counsel raised with regard to this job was whether it could be
performed by someone who was unable to respond appropriately to an emergency
situation. The VE confirmed that a person who was unable to respond appropriately to an
emergency situation could not work as an escort vehicle driver. But the ALJ did not find
that Moore‘s RFC included such a limitation. Accordingly, the ALJ did not err by finding
that Moore was able to perform the jobs of call out operator, escort vehicle driver, and
surveillance system monitor, and that Moore was therefore not disabled.
After considering Moore‘s motion for summary judgment, the Commissioner‘s
motion for summary judgment, the record in this case, and applicable case law, the Court
finds that there is no genuine dispute of material fact and that the Commissioner‘s motion
for summary judgment should be GRANTED and that Moore‘s motion for summary
judgment should be DENIED. The decision of the Social Security Administration is
affirmed; and this appeal is dismissed with prejudice.
A separate judgment will be entered in accordance with Federal Rule of Civil
SIGNED at Galveston, Texas, this 29th day of September, 2017.
George C. Hanks Jr.
United States District Judge
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