IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

AVA MOORE, : 

: 

Plaintiff, : 

: 

v. : CIVIL ACTION 05-0706-M 

: 

JO ANNE B. BARNHART, : 

Commissioner of : 

Social Security, : 

: 

Defendant. : 

MEMORANDUM OPINION AND ORDER

In this action under 42 U.S.C. §§ 405(g) and 1383(c)(3),

Plaintiff seeks judicial review of an adverse social security

ruling which denied claims for disability insurance benefits and

Supplemental Security Income (hereinafter SSI). The parties

filed written consent and this action has been referred to the

undersigned Magistrate Judge to conduct all proceedings and order

the entry of judgment in accordance with 28 U.S.C. § 636(c) and

Fed.R.Civ.P. 73 (see Doc. 23). Oral argument was heard on

September 25, 2006. Upon consideration of the administrative

record, the memoranda of the parties, and oral argument, it is

ORDERED that the decision of the Commissioner be REVERSED and

that this action be REMANDED to the Social Security

Administration for further action not inconsistent with the

Orders of this Court.

Case 1:05-cv-00706-M Document 24 Filed 09/29/06 Page 1 of 11
1The Court notes that Plaintiff’s applications for SSI, as well

as the decisions entered by the Social Security Administration in

connection with those applications, do not appear in the record.

2

This Court is not free to reweigh the evidence or substitute

its judgment for that of the Secretary of Health and Human Services, Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir.

1983), which must be supported by substantial evidence. Richardson v. Perales, 402 U.S. 389, 401 (1971). The substantial evidence test requires "that the decision under review be supported

by evidence sufficient to justify a reasoning mind in accepting

it; it is more than a scintilla, but less than a preponderance." 

Brady v. Heckler, 724 F.2d 914, 918 (11th Cir. 1984), quoting

Jones v. Schweiker, 551 F.Supp. 205 (D. Md. 1982).

Plaintiff was born December 12, 1949. At the time of the

Administrative Law Judge’s (ALJ) most recent decision, Moore was

forty-nine years old, had completed a tenth-grade education (Tr.

387), and had previous work experience as a school custodian (Tr.

389). In claiming benefits, Plaintiff alleges disability due to

right lower leg thrombophlebitis and chronic post phlebotic pain

from deep vein thrombosis (Doc. 15).

Moore filed her first applications for disability insurance

benefits and SSI on January 12, 1987, alleging a disability onset

date of November 16, 1986 (Tr. 32-35; see Doc. 13, p. 1).1 Those

applications were denied on February 17, 1987; Moore did not

appeal the denial of those applications (see Doc. 13, p. 1; Doc.

Case 1:05-cv-00706-M Document 24 Filed 09/29/06 Page 2 of 11
3

20, p. 1). 

Plaintiff filed her second set of applications for

disability benefits and SSI on July 1, 1987, with an alleged

onset of disability of November 13, 1986 (Tr. 59-62; see Doc. 13,

p. 1). Those application were denied initially and upon

reconsideration (Tr. 65-66, 71-72; see Doc. 1, p. 1). There is

no evidence to indicate that an appeal was filed (see Doc. 13, p.

1; Doc. 20, p. 1). 

On June 9, 1988, Moore filed a third set of applications for

benefits and SSI, alleging a disability onset date of November

13, 1986 (Tr. 93-96; see Doc. 13, p. 1). Those applications were

denied initially and upon reconsideration (Tr. 99-100, 105-06). 

Following a request for a hearing (Tr. 107-08), an administrative

law judge (ALJ), on April 26, 1990, determined that Plaintiff was

not disabled (Tr. 11-22). On August 11, 1993, U.S. Senior

District Judge Thomas, of this Court, affirmed the Commissioner’s

decision. Moore v. Sullivan, Civil Action 91-0586-DHT-C (S.D.

Ala. August 11, 1993). 

On August 14, 1991, while her third set of applications were

being reviewed in this Court, Moore filed a fourth set of

applications for disability benefits and SSI, claiming disability

as of November 13, 1986; it is this application which is

presently before the Court (Tr. 283-87; see Doc. 1, p. 2). 

Benefits were denied, both initially and after reconsideration

Case 1:05-cv-00706-M Document 24 Filed 09/29/06 Page 3 of 11
4

(Tr. 290-91, 296-97). Benefits were denied following a hearing

by an ALJ who determined, on December 1, 1995, that Plaintiff was

capable of working (Tr. 443-56). On January 24, 1997, the

Appeals Council vacated the ALJ’s decision, finding that he had

not properly considered evidence between April 27, 1990 and

August 11, 1993 (the date of the Commissioner’s decision on

Moore’s third set of applications through the date this Court

affirmed that decision); the Appeals Council remanded the action

back to the ALJ for another hearing and decision (Tr. 473-75).

On February 2, 1999, the ALJ issued another unfavorable

decision, finding that Moore could perform light work (Tr. 495-

514A). On June 18, 2002, the Appeals Council remanded the action

back to the ALJ because the record could not be located (Tr. 521-

23). The Appeals Council also noted that Plaintiff had filed a

subsequent (fifth) SSI application which should be consolidated

into the new decision. The Appeals Council further noted that

Moore had applied for Widow’s Disability Insurance Benefits for

which she was receiving benefits; the ALJ was instructed to

locate the Widows claim file and determine the decision’s

relevance to the disability and SSI claims presently under

consideration. On October 4, 2005, the Appeals Council set aside

its June 18, 2002 order and reinstated the ALJ’s decision of

February 2, 1999; the Appeals Council also denied Plaintiff’s

request for review of the ALJ’s decision (Tr. 269-72).

Case 1:05-cv-00706-M Document 24 Filed 09/29/06 Page 4 of 11
2Because the Court finds that this claim has merit, it is

unnecessary to address Moore’s other claims.

5

On December 7, 2005, Moore filed this action, challenging

the decisions of the ALJ and the Appeals Council (Doc. 1). 

Plaintiff claims that the opinion of the ALJ is not supported by

substantial evidence. Specifically, Moore alleges that: (1) The

Appeals Council acted prematurely in vacating one of its earlier

orders; (2) the ALJ effectively reopened the prior decision of

April 26, 1990; (3) the ALJ failed to properly consider the

opinions and conclusions of her treating physician; (4) the ALJ

improperly rejected her testimony; (5) the ALJ imposed an

improper hypothetical to the Vocational Expert; and (6) the ALJ

used improper Grid Rules in determining that she could work (Doc.

13). Defendant has responded to—and denies—these claims (Doc.

20).

Plaintiff claims that the ALJ effectively reopened the prior

decision of April 26, 1990.2 Moore specifically asserts that the

ALJ “discussed the testimony of the Plaintiff at the hearing

conducted on May 16, 1989 (Tr. 500-501, 511) and discussed

medical evidence presented on that claim (Tr. 503-504) to

contradict later evidence and support his position of nondisability (Tr. 509, 511)” (Doc. 13, p. 19; see generally pp. 18-

19). 

The ALJ specifically stated, in bold print, that the prior

Case 1:05-cv-00706-M Document 24 Filed 09/29/06 Page 5 of 11
6

decision was deemed “res judicata by judicial affirmance” (Tr.

498). The Eleventh Circuit Court of Appeals, in Butterworth v.

Bowen, 796 F.2d 1379, 1386 (11th Cir. 1986), held, after looking

at 20 C.F.R. § 404.901, that § 404.987 "indicate[d] that any of

the four levels of rulings may be reopened." In reviewing an

ALJ's decision, the Eleventh Circuit Court of Appeals has given

clear instruction:

[R]eopening of a case is an extraordinary

measure, affording the opportunity of a

second excursion through the decision making

process. While a case may be reopened during

the first twelve months following the

determination for any reason, thereafter it

may be reopened only for the specific and

substantial reasons catalogued in 20 C.F.R.

§§ 404.988 and 404.989. "Indeed, the

opportunity to reopen final decisions and any

hearing convened to determine the propriety

of such action are afforded by the

Secretary's regulations and not by the Social

Security Act." Califano v. Sanders, 420 U.S.

at 108, 97 S.Ct. at 986. Because the

reopening procedure is in the nature of a

bonus opportunity, a greater degree of

judicial deference is due to discretionary

denials by the administrative agency than is

appropriate where judicial review exists as a

matter of statutory right.

Bloodsworth v. Heckler, 703 F.2d 1233, 1238 (11th Cir. 1983). 

This Circuit has “held that it has jurisdiction to review the

Secretary's decision not to reopen a prior application only where

(1) a colorable constitutional claim is raised; or (2) the

decision is reconsidered to any extent at any administrative

Case 1:05-cv-00706-M Document 24 Filed 09/29/06 Page 6 of 11
7

level.” Jones v. Department of Health and Human Services, 941

F.2d 1529, 1533 (11th Cir. 1991) (citing Hall v. Bowen, 840 F.2d

777, 778 (11th Cir. 1987)); see also Loudermilk v. Barnhart, 290

F.3d 1265, 1268 (11th Cir. 2002). However, "judicial review

under § 405(g) is available when a social security claim is in

fact reopened and reconsidered on the merits to any extent at any

administrative level." Macon, on Behalf of Griffin v. Sullivan,

929 F.2d 1524, 1529 (11th Cir. 1991), citing Graham v. Bowen, 786

F.2d 1113, 1114 (11th Cir. 1986); Cherry v. Heckler, 760 F.2d

1186, 1190 (11th Cir. 1985). 

In the determination relevant to this inquiry, the ALJ

summarized, in forty-seven lines of text, Moore’s testimony from

the May 16, 1989 evidentiary hearing (Tr. 500-01, 508, 511); this

testimony was given in connection with Plaintiff’s third set of

applications. The ALJ also summarized medical evidence which

predated April 26, 1990, the date of the ALJ’s decision which was

affirmed by this Court and asserted to be res judicata. 

Specifically, the ALJ summarized an emergency room visit on

February 23, 1986 (see Tr. 325-30), a report by Dr. Dewey H. Lane

from April 29, 1987 (see Tr. 193-99), a consultative exam by Dr.

Henry H. Davis on August 8, 1987 (see Tr. 200-06), a consultative

exam by Dr. Henrietta T. Kovacs (see Tr. 226-33), and a report

from Dr. William Harold Avant dated August 15, 1989 (see Tr. 241-

44) (Tr. 503-04). Defendant admits the ALJ’s citation to the

Case 1:05-cv-00706-M Document 24 Filed 09/29/06 Page 7 of 11
8

prior testimony and medical evidence, but asserts that he used

that evidence only “to show inconsistencies in Plaintiff’s

testimony and to assess her credibility regarding her current

application” (Doc. 20, p. 15). 

The Court disagrees with Defendant’s assertion. While the

ALJ was assessing Plaintiff’s credibility, it appears to the

Court that he was evaluating her testimony of 1989 (Tr. 508-11). 

The ALJ’s decision reads as follows: “The claimant’s allegations

of pain and functional limitations to the degree alleged are not

supported by the weight of the evidence in the record. In her

testimony during the hearing conducted on May 16, 1989, the

claimant testified . . . .” (Tr. 508). After the ALJ’s reciting

of Moore’s testimony, he refers to medical evidence, both preand post-dating April 26, 1990, which refutes that testimony (Tr.

508-10). The ALJ then finds inconsistency in Plaintiff’s

testimony from the October 19, 1995 and July 16, 1997 hearings

(Tr. 510-11). And then, again, the ALJ cites specific testimony

from the May 16, 1989 hearing which he refutes with medical

evidence which almost exclusively relies on evidence pre-dating

April 26, 1990 (Tr. 511). 

Though Defendant asserts that the ALJ used the prior

testimony and evidence to show inconsistencies in her testimony

for the current application, the evidence shows otherwise. The

ALJ specifically, in two instances, cited Moore’s testimony from

Case 1:05-cv-00706-M Document 24 Filed 09/29/06 Page 8 of 11
3The Eleventh Circuit, in the en banc decision Bonner v. City of

Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981), adopted as precedent

decisions of the former Fifth Circuit rendered prior to October 1,

1981.

9

1989—not 1997—and showed how the medical evidence was contrary to

that testimony. While the ALJ did demonstrate medical evidence

which contradicted Plaintiff’s 1997 testimony, the greater part

(more than two-thirds) of his discussion on Plaintiff’s

credibility focuses on her earlier statements. The Court finds

merit in Moore’s claim that the ALJ reopened the prior decision. 

This alone, however, does not indicate a need for this Court to

remand this action for further review. 

Plaintiff next claims that the ALJ did not accord proper

legal weight to the opinions, diagnoses and medical evidence of

her physicians. Moore specifically refers to the reports of Drs.

Owens, Ahmadi, and Bell (Doc. 13, pp. 5-8). It should be noted

that "although the opinion of an examining physician is generally

entitled to more weight than the opinion of a non-examining

physician, the ALJ is free to reject the opinion of any physician

when the evidence supports a contrary conclusion." Oldham v.

Schweiker, 660 F.2d 1078, 1084 (5th Cir. 1981);3 see also 20

C.F.R. § 404.1527 (2005).

Moore points to the evidence of Dr. C. D. Owens, a boardcertified osteopathic internist who treated her, though

sparingly, from November 13, 1986 through September 28, 1992

Case 1:05-cv-00706-M Document 24 Filed 09/29/06 Page 9 of 11
10

(Doc. 13, pp. 5-6; see Tr. 221-25, 354-65). Over the course of

the six-year period, Owens examined Plaintiff on thirteen

occasions and indicated that she could not engage in prolonged

standing, walking, or sitting (Tr. 225, 240), that she was, at

least, marginally disabled (Tr. 221), and that her application

for disability should be approved (Tr. 224). 

The ALJ did not reference any of the medical evidence of Dr.

Owens, much less the opinions and conclusions. The ALJ is

required to "state specifically the weight accorded to each item

of evidence and why he reached that decision." Cowart v.

Schweiker, 662 F.2d 731, 735 (11th Cir. 1981). As the ALJ has

not discussed the evidence and opinions provided by Owens, and in

light of this Court’s finding that the ALJ had, de facto,

reopened the prior administrative decision, the Court finds that

it cannot render a decision as to whether or not the current ALJ

decision is supported by substantial evidence.

Therefore, it is ORDERED that this action be REMANDED to the

Social Security Administration for consideration of all evidence

relevant to Plaintiff’s disability benefits and SSI applications

of June 9, 1988 and August 14, 1991. This Court also expresses

the hope that the Social Security Administration will also

consider Moore’s fifth SSI application and Widow’s Disability

Insurance application, consolidating them, with this, into one

proceeding and determination, so that any questions concerning

Case 1:05-cv-00706-M Document 24 Filed 09/29/06 Page 10 of 11
11

their viability may be put to rest. Judgment will be entered by

separate order.

DONE this 29th day of September, 2006.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

Case 1:05-cv-00706-M Document 24 Filed 09/29/06 Page 11 of 11