UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

LUBBOCK DIVISION

DAN MOORE, §

§

 Plaintiff, §

§

v. § CIVIL ACTION NO.

§ 5:06-CV-038-C

§ ECF

MICHAEL J. ASTRUE, §

Commissioner of Social Security, §

§

Defendant. §

 REPORT AND RECOMMENDATION

Plaintiff Dan Moore seeks judicial review of an adverse decision of the Defendant

Commissioner of Social Security, denying his application for Social Security benefits. The

United States District Judge, pursuant to 28 U.S.C. § 636(b), referred this case to the United

States Magistrate Judge for report and recommendation, proposed findings of fact and

conclusions of law, and a proposed judgment. Both Moore and the Commissioner filed

briefs. After reviewing the administrative record and the arguments of both parties, this court

recommends that the District Court affirm the Commissioner’s decision.

I. Statement of the Case

Moore alleged in application documents that he is limited in his ability to work

because of back and knee pain, depression, and anxiety. (Tr. 94.) The Administrative Law

Judge (ALJ) acknowledged that Moore suffers from severe impairments including

degenerative joint disease in the right knee, a thoracic sprain/strain, cervical spondylosis,

 

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In order to determine whether an applicant is disabled, the Commissioner considers the applicant’s claim under a fivestep sequential analysis. 20 C.F.R. § 416.920 (2006); see Newton v. Apfel, 209 F.3d 448, 453 (5th Cir. 2000). Under

the sequential inquiry, the hearing officer decides whether the applicant: (1) is not working in substantial gainful activity;

(2) has a severe impairment; (3) has an impairment that meets or equals a listed impairment in Appendix I of the

regulations; (4) has an impairment that prevents him from doing past relevant work; and (5) has an impairment that

prevents him from doing any other work. Id. At the fifth step of the sequential evaluation process, the burden is on the

Commissioner to show that, considering the claimant’s residual functional capacity, age, education, and past work

experience, the claimant can perform work that exists in significant numbers in the national economy.

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major depression, and panic disorder. (Tr. 14.) He further determined that despite his

impairments, Moore was capable of performing the exertional and nonexertional demands

of light work and that Rule 202.20 of the Medical-Vocational Guidelines (the Grids) directed

a conclusion that Moore was not disabled. (Tr. 19.) The Appeals Council denied Moore’s

request for review. (Tr. 5-7.) The ALJ’s decision is therefore the Commissioner’s final

decision and subject to judicial review. See Higginbotham v. Barnhart, 405 F.3d 332, 337

(5th Cir. 2005). 

Moore contests the Commissioner’s final decision arguing that the ALJ erred at step

five of the five-step sequential disability analysis.1

 He argues the ALJ failed to consider the

medical evidence related to his non-exertional limitations; erred in applying the grids; and

erred in failing to obtain vocational expert testimony to determine relevant vocational issues.

II. Discussion 

At the fifth step of the sequential disability analysis, the burden falls to the

Commissioner to show the claimant is capable of performing work available in the national

economy. See Perez v. Barnhart, 415 F.3d 457, 462 (5th Cir. 2005) (citation omitted). The

 

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Located in the Commissioner’s regulations at appendix 2 of part 404, the grids consist of rules that direct a finding of

disability when the claimant’s demographic characteristics and residual functional capacity correspond to the job

requirements under a particular rule. See 20 C.F.R. pt. 404, subpt. P., app. 2. 

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ALJ may rely exclusively on the grids2 to meet this burden in cases in which the claimant

suffers only from exertional impairments or has non-exertional impairments that do not

significantly affect his ability to work; otherwise, the ALJ must elicit vocational expert

testimony. Crowley v. Apfel, 197 F.3d 194, 199 (5th Cir. 1999); Underwood v. Bowen,

828 F.2d 1081, 1082 (5th Cir. 1987) (The ALJ may rely on the grids to make the

determination at step five only when the claimant’s characteristics coincide with the criteria

in the grids.)

Moore argues the ALJ’s reliance on the grids was error and that the ALJ should have

elicited testimony from a vocational expert to determine whether he is capable of performing

work. He points out that he suffers from the non-exertional impairments of pain, depression,

and panic disorder and specifically contends the ALJ incorrectly characterized and omitted

evidence, which Moore argues supports a finding that he suffered from the non-exertional

impairment of severe pain. 

Pain may limit the range of jobs a claimant otherwise would be able to perform.

Fraga v. Bowen, 810 F.2d 1296, 1304 (5th Cir. 1987). The existence of pain does not,

however, preclude reliance upon the grids. See id. (upholding the ALJ’s reliance on the grids

where the ALJ found the claimant suffered from disk problems, low back and right leg pain,

and hypertension). Rather, reliance upon the grids is precluded when the claimant suffers

 

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from exertional impairments or suffers from non-exertional impairments that significantly

affect his ability to work. Crowley, 197 F.3d at 199. In this case, the ALJ did not find that

Moore’s pain significantly affected his ability to work. 

The responsibility for determining whether pain is disabling lies with the ALJ and his

decision in this regard is entitled to considerable judicial deference. Chambliss v. Massanari,

269 F.3d 520, 522 (5th Cir. 2001). The evaluation of the claimant’s allegations of pain is

“particularly within the province of the ALJ who has had an opportunity to observe whether

the person seems to be disabled.” Harrell v. Bowen, 862 F.2d 471, 480 (5th Cir. 1988)

(citations omitted).

In this case, the ALJ determined that Moore’s statements regarding his impairments

were “not entirely credible.” (Tr. 17.) In reaching this conclusion, the ALJ noted in part that

Moore had retained full range of motion in his neck, normal motor strength and sensation in

his back, normal motor, sensation, and reflex functioning in his upper extremities; and had

undergone conservative treatment without any surgery; and that his pain symptoms had been

successfully diminished with Botox nerve injection therapy. (Tr. 16.) The absence of

objective factors such as limitation in range of motion, muscular atrophy, and weight loss

may support an ALJ’s decision that a claimant’s pain is not disabling. Falco, 27 F.3d at 163;

see also 20 C.F.R. § 404.1529(c)(2) (medical evidence regarding reduced joint motion,

muscle spasm, sensory deficit, or motor disruption may be considered in determining the

intensity and persistence of a claimant’s symptoms). In this case, there is no medical

evidence that Moore suffered from muscular atrophy or weight loss, (See Tr. 572), and the

 

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medical evidence shows that he walked without an impaired gait (Tr. 284, 463, 472, 478),

did not suffer from motor or sensory reflex abnormalities and retained normal range of

motion in all major joints (Tr. 284), and responded well to conservative treatment (Tr. 309,

365, 572). 

On the other hand, Moore claims the ALJ mischaracterized and ignored evidence that

would establish severe pain. For example, he points out that the ALJ acknowledged only his

most benign diagnoses of thoracic sprain/strain and cervical spondylosis and found that he

had cervical spondylosis based on a record generated on July 19, 1999, which is before his

alleged onset date of disability. He also points out that an MRI from 1997 shows a disc bulge

but the ALJ determined that MRI findings showed no major impairment.

In regard to the MRI findings, the MRI from 1997 was generated over four years

before Moore filed the application at issue in this case. (Tr. 421.) In May 2002, after Moore

filed the application in this case, x-rays of his cervical spine were, in fact, negative and xrays of his thoracic spine were “essentially negative” showing only minor degenerative

changes. (Tr. 214, 286.) In regard to the diagnosis of cervical spondylosis acknowledged

by the ALJ, Moore’s treating neurologist consistently diagnosed cervical spondylosis in the

year Moore filed his application and continued the diagnosis as late as April 2003. (See, e.g.,

Tr. 179, 565.) 

 

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It should be noted that diagnosis alone does not establish that an impairment causes

limitations or is disabling. Rather, the ALJ must consider the extent of the limitations

imposed by the claimant’s impairment(s) and the impact on his capacity for work. 20 C.F.R.

§ 404.1529(a),(c). In this case the ALJ acknowledged that Moore suffered from impairments

in his cervical spine and considered limitations imposed by the impairments. (Tr. 16-17.)

The evidence cited by the ALJ as well as other evidence in the record substantially supports

a conclusion that Moore’s pain would not significantly affect his ability to work. (See Tr.

16-17, 69, 71, 280, 286, 572.) 

Moore also claims the ALJ erred in finding that there were no work-related limitations

caused by his depression and panic disorder. He claims the psychiatric and psychological

examinations in the record do not address work-related issues and his treating physicians had

no reason to believe that advice on the issue was warranted. He further claims the ALJ erred

in not obtaining opinion evidence from his physicians regarding the limitations caused by his

impairments and the limitations caused by his prescribed drug therapy. The Fifth Circuit

Court of Appeals has held that the ALJ should usually request a medical source statement

describing the types of work the claimant is capable of performing; however, “the absence

of such a statement . . . does not make the record incomplete.” Ripley v. Chater, 67 F.3d 552,

557 (5th Cir. 1995). In such a situation, the inquiry for the court is whether the ALJ’s

decision is substantially supported by other evidence in the record. Id. In this case, there is

substantial evidence in the record to support the ALJ’s decision regarding Moore’s mental

impairments. 

 

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Examples of non-exertional limitations that may be caused by mental impairments and

limit a claimant’s ability to meet the non-exertional demands of work include difficulty

functioning because of nervousness, anxiety, and depression; difficulty maintaining attention

or concentration; and difficulty remembering detailed instructions. 20 C.F.R. § 416.969a(c).

The ALJ supported his conclusion that Moore’s depression and panic disorder did not cause

work-related limitations by finding that Moore consistently retained normal thought content,

retained orientation as to person, place, and time and retained good memory; that Moore’s

judgment and insight remained fair; and that there was no evidence of delusions,

hallucinations, dementia, or homicidal or suicidal tendencies. (Tr. 17.) The ALJ’s findings

are supported by substantial evidence. (Tr. 275-77, 466, 470, 507.)

The records show Moore has been diagnosed and treated for depression and panic

disorder. (Tr. 479.) However, by Moore’s own report, the symptoms caused by his mental

conditions were mild to moderate. (Tr. 114, 168.) In addition, during the period of time

relevant to Moore’s claim, psychiatrists and psychologists assigned Moore Global

Assessment of Functioning Scores (GAF) of 55 and 60. (Tr. 108, 275, 467, 506.) A GAF

score is an assessment of an individual’s psychological, social, and occupational functioning

based on a hypothetical continuum of mental health and mental illness, and an individual

assigned a GAF score in the range of 51 to 60 would be expected to experience only

moderate (rather than significant) difficulty in occupational functioning. See AMERICAN

PSYCHIATRIC ASS'N DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL

DISORDERS at 34 (4th ed. 2000) (DSM-IV). 

 

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The medical evidence related to Moore’s pain and mental impairments does not

support a conclusion that his non-exertional impairments significantly affected his ability to

work, and it should therefore be determined that the ALJ did not err in relying on the grids

and was not required to elicit vocational testimony. See Crowley, 197 F.3d at 199. 

Although there may be medical evidence in the record that favors Moore’s argument,

in light of the substantial evidence supporting the ALJ’s decision, this court is constrained

from finding error. Even in a case in which the evidence indicates a mixed record concerning

a claimant’s health problems and limitations upon his ability to work, it is the ALJ’s

responsibility to weigh the evidence; the court is then charged with determining whether

there is substantial evidence in the record as a whole to support the ALJ’s determination.

Chambliss, 269 F.3d at 523 (citation omitted). 

III. Recommendation

Based on the foregoing discussion of the issues, evidence and the law, this court

recommends that the United States District Court affirm the Commissioner’s decision and

dismiss Moore’s appeal with prejudice. 

IV. Right to Object

Pursuant to 28 U.S.C. § 636(b)(1), any party has the right to serve and file written

objections to the Report and Recommendation within 10 days after being served with a copy

of this document. The filing of objections is necessary to obtain de novo review by the

United States District Court. A party’s failure to file written objections within ten days shall

bar such a party, except upon grounds of plain error, from attacking on appeal the factual

 

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findings and legal conclusions accepted by the district court. Douglass v. United Servs. Auto

Ass’n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc).

Dated: February 22, 2007.

______________________________________

NANCY M. KOENIG

United States Magistrate Judge

 

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