Moore v. Colvin, 4:13-CV-453-JM-JTK
| Decision Date | 22 September 2014 |
| Docket Number | No. 4:13-CV-453-JM-JTK,4:13-CV-453-JM-JTK |
| Parties | Randall Joe Moore Plaintiff v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration Defendant |
| Court | U.S. District Court — Eastern District of Arkansas |
The following recommended disposition was prepared for U.S. District Judge James M. Moody, Jr. A party to this dispute may file written objections to this recommendation. An objection must be specific and state the factual and/or legal basis for the objection. An objection to a factual finding must identify the finding and the evidence supporting the objection. Objections must be filed with the clerk of the court no later than 14 days from the date of this recommendation.1 The objecting party must serve the opposing party with a copy of an objection. Failing to object within 14 days waives the right to appeal questions of fact.2 If no objections are filed, Judge Moody may adopt the recommended disposition without independently reviewing all of the record evidence.
Randall Joe Moore seeks judicial review of the denial of his application for disability insurance income (DIB).3 Moore last worked as a route technician, servicing air machines.4 In June 2009, he was laid off after doing that job for nine years.5 Two years later, after his unemployment benefits ran out,6 Moore applied for DIB. He based disability on a collapsed lung, emphysema, and blood clots in lungs.7
Moore initially claimed he was disabled when he was laid off, but because of the special rules for claimants age 55 or older,8 Moore amended his onset date to the day he turned 55.9 As a result, this case considers whether Moore was disabled beginning November 14, 2010.
The Commissioner's decision. After considering the application, the ALJ identified chronic obstructive pulmonary disease (COPD), obesity, and depression as medically determinable impairments, but determined that none of those conditions are severe.10 Because a claimant must prove he has a severe impairment for further consideration,11 the ALJ denied the application.12
Moore asked the Commissioner's Appeals Council to review the determination.13 After the request was denied,14 the ALJ's determination became a final decision for judicial review.15 Moore filed this case to challenge the decision.16 In reviewing the decision, the court must determine whether substantial evidence supports the decisionand whether the ALJ made a legal error.17 This report explains why substantial evidence supports the decision and why the ALJ made no legal error.
Moore's allegations. Because the ALJ denied the application at step two of the disability-determination process, Moore's argument focuses on severity. He says the ALJ didn't consider dyspnea (shortness of breath with exertion) secondary to a remote pulmonary embolism and collapsed lung. He contends the ALJ failed to properly consider obesity. He maintains the ALJ should have determined why the Department of Veterans Affairs (VA) awarded a 100% disability rating before making a determination. For these reasons, he argues substantial evidence does not support the ALJ's decision.18
Applicable legal principles. Step two of the disability-determination process requires the claimant to prove he has a severe impairment.19 If the claimant fails toprove a severe impairment, the process ends. By requiring a severe impairment, the process weeds out claimants whose abilities to work are not significantly limited.20
To be severe, an impairment must significantly limit the claimant's physical or mental ability to do basic work activities.21 Basic work activities include "(1) [p]hysical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling; (2) [c]apacities for seeing, hearing, and speaking; (3) [u]nderstanding, carrying out, and remembering simple instructions; (4) [u]se of judgment; (5) [r]esponding appropriately to supervision, co-workers and usual work situations; and (6) [d]ealing with changes in a routine work setting."22 For substantial evidence to support the decision, a reasonable mind must accept the evidence as adequate to show Moore's impairments do not significantly limit his physical or mental ability to do basic work activities.23
Whether substantial evidence exists. According to Moore, he can't even walk to the car without becoming short of breath.24 He can't lift over five pounds.25 Pain in his chest, hands, legs, and feet prevent him from standing in the shower, feeding himself, concentrating, or even sitting to watch television.26 Poor vision prevents him from driving.27 But allegations are not enough to prove Moore has a severe impairment. To prove he has a severe impairment, Moore must provide "medical signs and findings, established by medically acceptable clinical or laboratory diagnostic techniques, which show the existence of a medical impairment...which could reasonably be expected to produce the pain or other symptoms alleged and which...would lead to a conclusion that the individual is under a disability."28 Moore presented no evidence satisfying this requirement.
Remote medical evidence. Moore's primary complaint is shortness of breath.29He contends he has been short of breath since August 2007, when pulmonary arteries in the lungs were blocked.30 Moore was hospitalized for three days. Upon discharge, his doctor instructed him to follow up with a primary care physician and to take a blood-thinning medication.31 Moore returned to work. He sought no followup treatment; he did not take prescribed medication.
Moore says he began to slow down at that time, frequently running out of breath,32 but he worked for 50 hours per week, for 22 more months.33 The record reflects no medical treatment during that time period. A reasonable mind would accept the evidence as adequate to show that pulmonary embolisms and shortness of breath do not significantly limit Moore's ability to do basic work activities, because he sought no medical treatment and he stopped working for a different reason.
Medical evidence when Moore applied. When he applied for DIB, Moore's only medical evidence was the treatment records for the August 2007 hospitalization. The ALJ ordered a general physical exam and a mental diagnostic exam because Moore alleged physical and mental impairment. The physical examiner identified shortness ofbreath with exertion as Moore's main limiting factor.34 Diagnostic imaging showed satisfactory lung volume.35 Pulmonary function testing showed moderate COPD; moderate COPD is consistent with shortness of breath with exertion. The examiner reported that Moore has normal eyesight; his uncorrected vision is 20/30.36 That finding discredits Moore's allegation that poor vision prevents him from driving and undermines the credibility of his allegations.
The psychological examiner identified no mental impairment. According to the examiner, Moore's history, symptoms, and presentation indicate no serious diagnosable mental or emotional disorder.37 The examiner observed no limitations with concentration, persistence, or pace.38 Moore can cope with mental demands of work.39 To the extent Moore has depressive symptoms, those symptoms flowed from unemployment.40
After reviewing the August 2007 treatment records and the consultative exams, medical experts agreed: Moore has no severe physical or mental impairment.41 The agreed opinion is probative of Moore's argument because unlike other medical professionals, agency medical experts are familiar with the regulatory definition of a severe impairment. A reasonable mind would accept the agreed medical expert opinion as adequate to support the determination that Moore has no severe impairment.
Subsequent medical evidence. Four months after applying for DIB, and after the consultative exams, Moore sought medical treatment at a VA clinic. It was the first time he sought treatment since being discharged from the hospital. He complained about shortness of breath, but his doctor's findings were consistently negative: clear lungs, normal respiratory effort.42 His doctor diagnosed COPD,43 prescribed inhalers to control respiratory symptoms,44 and characterized COPD as stable.45 Moore declined pulmonary function testing.46
A few weeks before the hearing, the VA doctor observed Moore walk with a limp; Moore complained about right knee pain.47 Diagnostic imaging showed mild arthritis in the right knee,48 but nothing implicating a significant physical impairment. Despite negative medical and laboratory findings, Moore's VA doctor completed a medical source statement and reported numerous limitations.49 Among other things, the VA doctor indicated that Moore is unable to sit for one hour or handle small objects with his hands. The ALJ properly rejected the statement as unsupported. The VA doctor's treatment notes reflect no impairment.
Moore twice presented to a VA therapist.50 He claimed to be disabled and complained about the lack of income. He stated that he was selling his property to pay his rent and motorcycle payment. The therapist observed no cognitive deficits or suicidal ideation. Moore sought no further treatment. These facts implicate no severe mental impairment.51
VA unemployability rating. After reviewing the August 2007 treatment records and the VA treatment records, the VA awarded an unemployability rating.52 The VA did not review the two consultative exams. Moore contends the ALJ should have developed the record to ascertain whether the award was for a physical or mental disability, but the notification letter provided the basis for the award: COPD and anxiety disorder with depression.53 Those conditions provide no basis for relief in this case because Moore has satisfactory lung volume and no doctor diagnosed depression or anxiety.
Moreover, the rules for determining unemployability for a VA award and disability for DIB differ. Both determinations require the inability to...
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