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Moss v. Astrue

June 22, 2010


The opinion of the court was delivered by: Michael M. Mihm United States District Judge


This matter is now before the Court on Plaintiff's Motion for Summary Reversal and the Commissioner's Motion for Affirmance. For the reasons set forth below, Plaintiff's Motion for Summary Reversal [#10] is DENIED, and the Commissioner's Motion for Summary Affirmance [#13] is GRANTED.


David Moss ("Moss") was 49 years old at his 2008 hearing (R2134). He is 6'4" and weighs 190 lbs. Id. He does not have any children and has been divorced since 1993. (R2063) Although at the time of his hearing Moss had a private residence, he had previously resided at different shelters. (R981, 2118) Moss graduated from high school and attended three years of college. (R2065) His employment history is diverse. Moss has worked as a radio announcer, house renovator, DJ, and at various other occupations (R2066-67, 2069-70, 2072). Moss last worked in 2004 for Custom Renovators where he helped remodel houses and apartment complexes. (R2067)

On May 23, 2005, (R424) Moss*fn1 filed for disability insurance benefits ("DIB"), alleging back problems, panic disorder, and depression. (R433) The Social Security Administration ("SSA") denied his application because he was "able to do light-unskilled work." Id. The SSA also denied Moss's request for reconsideration. (R435) He then filed for an Administrative Law Judge ("ALJ") hearing (R439), which ALJ Alice Jordan heard on April 24, 2007. (R2057) The ALJ denied Moss's claim, and Moss requested a review of her decision. (R21) The Appeals Council remanded the case. (R2109) Three people testified at the rehearing: Moss, who was represented by counsel; Moss's case manager, Pepper Kenney; and Paul Gustafson, a Vocational Expert ("VE"). (R2113, 2125, 2134) ALJ Jordan again denied Moss's claim. (R38). On May 01, 2009, the Appeals Council denied Moss's request for review, and the ALJ's decision became the final decision of the Commissioner. (R14)

Moss testified that back pain*fn2 and a pinched nerve in his neck limited his abilities. (2114-2115) According to Moss, he could only turn his neck a short distance, and pain made it difficult for him to sit, sleep, or lay on his stomach and sides. Id. Moss also testified that problems with his left leg required him to use a cane. Id. Moss claimed that the weakened leg would sometimes go numb down to the foot. (R2114) Moss said that he could sit in a position for only fifteen minutes before his back and shoulders bother him. (R2119) He admitted that he could watch television and read but claimed he could not use a computer without a great deal of pain. (R2121)

In addition to his physical ailments, Moss also faced various mental limitations. He testified that he was depressed and that being around people made him anxious. (R2115-16) Moss claimed his depression and anxiety caused him to isolate himself. Id. Moss testified that he feared interacting with people (R2121) and that he had attempted suicide. (R2118) He had, however, socialized with people other than his case manager and physicians. (R2123) Moss sought help for his anxiety and depression through inpatient, (R917, 929, 978, 1000) and outpatient treatment. (R661-85) Various treating physicians further noted that Moss was manipulative and motivated by his desire for drugs and a bed. (R918, 1114, 1250-51)

In Moss's Residual Functional Capacity Assessment, the consulting physician, Burris Stanley, diagnosed Moss with Spondylolisthesis and an L5-S1 Decompression and Fusion. (R686) The consulting physician concluded that Moss could, despite his physical ailments, "perform a wide range of light work." (R693) The consulting physician of Moss's Psychiatric Review Technique, Brister Phyllis, wrote that Moss had a panic disorder, Dysthymia, and displayed signs of cocaine abuse and drug seeking behavior. (R706) The consulting physician also concluded that Moss had mild restrictions as to daily living, moderate difficulties with social functioning, moderate difficulties maintaining concentration, persistence, or pace, and one or two episodes of decompensation. (R704) Consequently, the consulting physician concluded that the evidence did not establish the presence of "C" criterion. (R705) Moss's Mental Residual Functional Capacity Assessment confirmed that Moss did not suffer any marked limitations. (R708-09) The consulting physician concluded that Moss "remains cognitively intact and able to understand, recall and execute at least simple operations of a routine, repetitive nature" and that Moss could "tolerate occasional social contacts and adapt to routine." (R710)

In determining whether Moss had a severe impairment under step 2, the ALJ examined various aspects of Moss's medical history. (R28-32) While examining Moss's medical treatment, the ALJ noted that Moss had been hospitalized in May 2005 for depression and had a GAF of "55 to 60." (R29) The ALJ ultimately found that Moss's impairments were severe. (R28)

However, the ALJ also found that Moss's limitations did not satisfy step 3 criteria. Step 3 requires the ALJ to determine whether the claimant's disorders meet or exceed disorders listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. Moss's back impairment did not "satisfy" the spinal disorder Listing (1.04) because "there is no evidence of nerve root compression, radiculopathy or cauda equine syndrome, spinal arachnoiditis manifested by severe burning, or painful dysesthesia resulting in the need for changes in position or posture more than once every 2 hours, or lumbar spinal stenosis." (R32) The ALJ also found that Moss's mental impairments did not satisfy Listing 12.04 (affective disorders) and 12.09 (substance addiction disorders) Criteria because Moss had no marked difficulties and no episodes of decompensation. (R32-33) Since, among other activities, Moss was capable of doing laundry and dishes, picking up after himself, and mowing his lawn, the ALJ found him to be only mildly restricted in activities of daily living. (R33) Because Moss had friends and family and interacted pleasantly with examiners, the ALJ found that he only had moderate social difficulties. Id. The ALJ ruled that because treatment notes indicated Moss did not suffer from a "loss of cognitive function," he did not have a marked limitation "[w]ith regard to concentration, persistence or pace." Id. Moss's Mental Residual Functional Capacity Assessment supports the ALJ's conclusion. (R708) Finally, the ALJ also found that Moss did not suffer episodes of decompensation and that "the evidence failed to establish the presence of 'paragraph C' criteria." (R33) Consequently, the ALJ ruled that Moss did not have an impairment that "meets or medically equals" the Listings. (R32)

The ALJ did not give controlling weight to all of the evidence presented. Moss's case manager, in a written assessment undersigned by Dr. Bitar, reported on June 7, 2006, that Moss had "marked limitations in following work rules, using judgment, functioning independently and maintaining attention and concentration... understanding, remembering and carrying out simple job instructions." (R31) She also concluded that Moss had extreme limitations "relating to co-workers, dealing with the public, interacting with supervisors... dealing with work stresses... behaving in an emotionally stable manner, relating predictably in social situations and demonstrating reliability." Id. The ALJ did not afford the June 7, 2006, report controlling weight because she found it to be inconsistent "with the record as a whole..." and it was "based on personal observation rather than formal testing." Id. On page 11 of her opinion, the ALJ separately addressed Dr. Bitar's signature on the report. (R36) The ALJ did not give controlling weight to Dr. Bitar's opinion. Id. As with the caseworker, the ALJ found that Dr. Bitar's assessment was "...internally inconsistent with the record..." and that there was "no significant reason" to believe that Moss's manipulative behavior, noted by several other doctors, would be any different "before his case worker or psychiatrist." Id.

The ALJ also did not afford controlling weight to statements Moss made. The ALJ found that although Moss's "impairments could reasonably be expected to produce the alleged symptoms... the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not credible to the extent that they are inconsistent with the residual functional capacity assessment for the reasons explained." (R34) (emphasis added).

At the trial, the VE presented a hypothetical to determine how many jobs Moss was qualified to perform. The VE testified that his "data is gathered statistically through the use of census codes" that are "part of the ALNAT [sic] system." (R2138) Moss did not object to the VE's use of the ONET system. The ALJ found that the VE's testimony was "consistent with the information contained in the Dictionary of Occupational Titles" ("DOT") pursuant to "SSR 00-4p" and ruled that Moss was "not disabled." (R38) The ALJ's decision on August 29, 2008, is the ...

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