[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ .U .S. COURT OF APPEALS
ELEVENTH CIRCUIT
April 12, 2005
No. 04-13176
THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 03-00205-CV-2-CAR-5
CHRISTI L. MOORE,
Plaintiff-Appellant,
versus
JO ANNE B. BARNHART,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(April 12, 2005)
Before BARKETT, HILL and FARRIS *, Circuit Judges.
PER CURIAM:
Christi L. Moore appeals the district court’s order affirming the
*
Honorable Jerome Farris, United States Circuit Judge for the Ninth Circuit, sitting by
designation.
Commissioner of Social Security’s (“Commissioner”) denial of her application for
Disability Insurance Benefit (“DIB”) and Supplemental Security Income (“SSI”)
payments based on a determination that she retained sufficient residual functional
capacity to perform her past relevant work. Specifically, Moore takes issue with:
(i) the ALJ’s failure to credit testimony from her treating physicians; (ii) the ALJ’s
reference to an absence of objective medical evidence; (iii) the ALJ’s ultimate
determination that she remained able to perform the full range of light work; and
(iv) the ALJ’s failure to comply with regulations on the methodology for
evaluating mental impairments. We find the ALJ’s failure to properly evaluate
Moore’s psychological impairments requires remand.
BACKGROUND
In February 1994, Moore applied for DIB, claiming disability from
fibromyalgia, separation of the right shoulder, a varus deformity of the knee and
leg 1, asthma, depression, cervical disc disease, and headaches. After hearings
before an administrative law judge (“ALJ”), her DIB application was denied in
August 1996. The district court affirmed, but on appeal before this court the Social
Security Administration (“SSA”) requested a “sentence four” remand pursuant to
1
A varus deformity is defined as a bowing inward of the knee and leg. F.A. Davis,
Tarber’s Cyclopedic Medical Dictionary 2064 (18th Ed. 1997).
2
42 U.S.C. § 405(g)2 to allow further consideration of Moore’s fibromyalgia.
Moore subsequently filed her claim for SSI payments in April 1998. After
additional hearings and the presentation of additional evidence, the ALJ
recommended that both claims be denied. Though the ALJ accepted that Moore
both had not engaged in substantial gainful activity and had impairments
qualifying as severe, he determined that Moore’s disabilities did not meet or equal
any of those resulting in a presumption of disability. See Appendix 1, 20 C.F.R. §
404 (2005). The ALJ ultimately found that while Moore was restricted from some
jobs, her impairments did not preclude performance of all of her past relevant
work, including light exertion positions as an office clerk, sales clerk, food
production worker, or waitress. That determination was largely grounded in what
the ALJ perceived as an inconsistency between Moore’s accounts of her daily
activities and her claims of work impairment. The ALJ also made adverse
credibility determinations as to Moore’s claim that she has not kept up with her
prescription drug and treatment regimen due to financial constraints, in light of
Moore’s ability to purchase cigarettes, cocaine, and marijuana. The ALJ further
found Moore’s case weakened by her smoking habit, where medical professionals
2
In order to remand pursuant to the fourth sentence of § 405(g), the court “must either
find that the decision is not supported by substantial evidence, or that the Commissioner (or the
ALJ) incorrectly applied the law relevant to the disability claim.” See Jackson v. Chater, 99
F.3d 1086, 1091-92 (11th Cir. 1996).
3
have repeatedly stated that it exacerbated her asthma and respiratory problems.
After the appeals council denied Moore’s request for review, the
Commissioner adopted the ALJ’s findings as final. Moore appealed to the district
court, which in turn adopted the magistrate’s recommendation to affirm the
Commissioner’s decision. Moore timely appeals.
STANDARD OF REVIEW
In Social Security appeals, we review de novo the legal principles upon
which the Commissioner’s decision is based. Chester v. Bowen, 792 F.2d 129, 131
(11th Cir. 1986). However, we review the resulting decision only to determine
whether it is supported by substantial evidence. Crawford v. Comm’r of Soc. Sec.,
363 F.3d 1155, 1158-59 (11th Cir. 2004). Substantial evidence is less than a
preponderance, but rather such relevant evidence as a reasonable person would
accept as adequate to support a conclusion. Id. This limited review precludes
deciding the facts anew, making credibility determinations, or re-weighing the
evidence. Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983).
DISCUSSION
An individual claiming Social Security disability benefits must prove that
she is disabled. Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999). For SSI
claims, a claimant becomes eligible in the first month where she is both disabled
4
and has an SSI application on file. 20 C.F.R. § 416.202-03 (2005). For DIB
claims, a claimant is eligible for benefits where she demonstrates disability on or
before the last date for which she were insured. 42 U.S.C. § 423(a)(1)(A) (2005).
Because Moore’s last insured date was December 31, 1997, her DIB appeal
requires a showing of disability on or before that date. Conversely, as Moore
applied for SSI payments in April 15, 1998, her SSI appeal requires a showing of
disability between that date and the date of the ALJ’s decision, on February 23,
2001.
The social security regulations establish a five-step evaluation process,
which is used to determine disability for both SSI and DIB claims. McDaniel v.
Bowen, 800 F.2d 1026, 1030-31 (11th Cir. 1986); 20 C.F.R. § 416.912 (2005)
(five-step determination for SSI); 20 C.F.R. § 404.1520 (2005) (five-step
determination for DIB). These regulations place a very heavy burden on the
claimant to demonstrate both a qualifying disability and an inability to perform
past relevant work. Spencer v. Heckler, 765 F.2d 1090, 1093 (11th Cir. 1985).
Moore’s appeal focuses on step four in the evaluation process: her capacity to
perform her past relevant work.
First, Moore contends that the ALJ erred in failing to properly consider her
symptoms of pain and fibromyalgia. Specifically, Moore contends that the ALJ’s
5
decision improperly focused on the absence of objective findings to corroborate
her claims of impairment, and conflicts with our unpublished decision in Stewart v.
Apfel, No. 99-6132, 2000 U.S. App. LEXIS 33214 (11th Cir. Dec. 20, 2000).3 In
Stewart, we reviewed medical research on fibromyalgia, which often lacks medical
or laboratory signs, and is generally diagnosed mostly on a individual’s described
symptoms. Because the impairment’s hallmark is thus a lack of objective
evidence, we reversed an ALJ’s determination that a fibromyalgia claimant’s
testimony was incredible based on the lack of objective evidence documenting the
impairment. Id. at *9, n.4.
While in this case the ALJ did note that Moore’s treating sources
documented a “lack of corroborative objective findings of impairment,” this
absence of laboratory evidence was not the basis for the ALJ’s own negative
credibility determination. Unlike the situation in Stewart, where the lack of
objective findings formed the basis for the adverse credibility determination, the
ALJ here relied on the inconsistencies between Moore’s descriptions of her diverse
daily activities and her claims of infirmity. More specifically, the ALJ questioned
Moore’s contentions that she could not maintain consciousness or perform light
3
Unpublished decisions of this court are not binding precedent. See 11th Cir. R. 36-2.
However, Moore specifically relies on our unpublished decision in Stewart, and we address it for
this reason.
6
work, in light of her ability to drive, provide childcare, bathe and care for herself,
exercise, and perform housework.
We recognize that credibility determinations are the province of the ALJ.
Wilson v. Heckler, 734 F.2d 513, 517 (11th Cir. 1984). As the ALJ provided a
detailed factual basis for his credibility determination 4, which did not turn on the
lack of objective evidence documenting fibromyalgia, Stewart is unavailing to
Moore. Indeed, the ALJ even cited to our decision in Stewart, making clear that
Moore’s lack of corroborative medical evidence “did not establish the claimant has
no impairment from fibromyalgia.” R. 1182.
Second, Moore suggests that the ALJ improperly discredited the testimony
of her treating chiropractor. Moore cites to decisions of this court requiring that
the ALJ clearly articulate the reasons for giving less weight to the testimony of a
treating physician. MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986).
While a treating physician’s testimony can be particularly valuable in fibromyalgia
cases, where objective evidence is often absent, see Stewart, 2000 U.S. App.
LEXIS 33214 at *9, the ALJ here adequately articulated specific justification for
discounting Dr. Pardo’s opinion. Dr. Pardo treated Moore for approximately six
4
While Moore argues in passing that the ALJ’s decsion runs afoul of this Circuit’s
precedent requiring explicit articulation of the reasons justifying a decision to discredit a
claimant’s subjective pain testimony (e.g., Cannon v. Bowen, 858 F.2d 1541, 1545 (11th Cir.
1988)), the ALJ’s findings and rationale satisfy this standard.
7
months before opining, in February 1997, that Moore was unable to work
indefinitely. The ALJ found this opinion deficient because it failed to account for
Moore’s diverse daily activities, or to give any specific assessment of Moore’s
functional capacity or explanation of how it bore on Dr. Pardo’s conclusion that
Moore could not work. In addition, the ALJ discounted Dr. Pardo’s opinion
because the opinion was prepared on a short form used to support Moore’s food
stamp eligibility. Where our limited review precludes re-weighing the evidence
anew, Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996), and as the ALJ
articulated specific reasons for failing to give Dr. Pardo’s opinion controlling
weight, we find no reversible error.
Third, Moore urges error in the ALJ’s ultimate determination that her
residual functional capacity (“RFC”) enabled her to perform some of her past
work. On this point, the ALJ relied on medical testimony that Moore’s varus
orthopedic problem only “moderately restricted” her gait, did not restrict light duty
employment, and could be treated with high-top shoes and over-the-counter
medications. R. 1185. The ALJ drew on similar medical testimony that Moore’s
psychiatric and depressive impairments resulted in moderate deficiencies in
concentration and attention, but did not affect Moore’s mobility or require
8
hospitalization.5 R. 1184-85. Likewise, Moore’s vertebrogenic disorders resulted
in no major functional loss. R. 1183. The ALJ further noted that throughout the
time period under consideration, Moore’s condition remained relatively stable,
with a gain in weight, no diminution in muscle strength, a full range of motion, and
normal muscle tone. R. 1183, 1185. While the ALJ’s RFC decision considered
Moore’s subjective pain, it noted that Moore’s medical history contained notations
of embellished and magnified pain behaviors, as well as drug-seeking manipulative
tendencies. R. 1183, 1185. The ALJ’s RFC determination also drew on findings
of an inconsistency between Moore’s own testimony as to her daily activities and
her claims of impairment.
Based on the foregoing, we find that the ALJ’s determination that Moore
retained sufficient RFC to perform some of her past relevant work was supported
by substantial evidence. See Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir.
1990) (“[e]ven if the evidence preponderates against the Secretary’s factual
findings, we must affirm if the decision reached is supported by substantial
evidence”); cf., Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997) (affirming
ALJ determination that claimant’s claims of work impairment could not be squared
5
On this point, the ALJ rejected a state agency’s determination that Moore’s affective
disorder was “non-severe”, finding instead that it imposed non-minimal restrictions on her
capacity. R. 1186.
9
with her ability to care for herself and manage daily activities of childcare and
housework). To the extent that Moore points to other evidence which would
undermine the ALJ’s RFC determination 6, her contentions misinterpret the
narrowly circumscribed nature of our appellate review, which precludes us from
“re-weigh[ing] the evidence or substitut[ing] our judgment for that [of the
Commissioner] . . . even if the evidence preponderates against” the decision.
Bloodsworth, 703 F.2d at 1239. Furthermore, we note that rather than pointing to
medical evidence that conflicts with the ALJ’s RFC determination, Moore argues
inferentially that based on their evaluations, Moore’s physicians would most likely
disagree with the ALJ’s findings. Because Moore bears the burden of
demonstrating that she is unable to perform her past relevant work, see Jones, 190
F.3d at 1228, this sort of extrapolation and conjecture remains insufficient to
disturb the ALJ’s RFC determination, where it is supported by substantial
evidence.
Fourth and finally, Moore argues that the ALJ erred in his consideration of
her mental impairments. Specifically, Moore points to the ALJ’s failure to
6
To a large extent, Moore questions the ALJ’s RFC determination based solely on the
fact that she has varus leg instability and shoulder separation. However, the mere existence of
these impairments does not reveal the extent to which they limit her ability to work or undermine
the ALJ’s determination in that regard. See McCruter v. Bowen, 791 F.2d 1544, 1547 (11th Cir.
1986) (“‘severity’ of a medically ascertained disability must be measured in terms of its effect
upon ability to work”).
10
complete a Psychiatric Review Technique Form (“PRTF”) or comply with the
mode of analysis the form and its accompanying regulations dictate. Agency
regulations require the ALJ to use the “special technique” dicated by the PRTF for
evaluating mental impairments. 20 C.F.R. § 404.1520a-(a). This technique
requires separate evaluations on a four-point scale of how the claimant’s mental
impairment impacts four functional areas: “activities of daily living; social
functioning; concentration, persistence, or pace; and episodes of decompensation.”
20 C.F.R. § 404.1520a-(c)(3-4). The ALJ is required to incorporate the results of
this technique into the findings and conclusions. 20 C.F.R. § 404.1520a-(e)(2).
On appeal, the Commissioner concedes (as she must) that the ALJ erred in
not completing the PRTF or complying with its mode of analysis. The
Commissioner argues, however, that remand is unnecessary as it would require no
more than the ALJ’s rote completion of the PRTF. We cannot agree. The ALJ
failed to even analyze or document Moore condition in two of the PRTF’s
functional areas: social functioning and prior episodes of decompensation.
Because the ALJ’s decision lacks consideration of these factors and their impact on
his ultimate conclusion as to Moore’s RFC, we cannot even evaluate the
Commissioner’s contention that the ALJ’s error was harmless.
Furthermore, the fact that the ALJ complied with the PRTF method and
11
regulations when he first evaluated Moore’s claim in 1996, prior to remand, is not
sufficient to excuse his failure to do so here. Particularly where Moore has
presented non-frivolous evidence suggesting that her mental condition has
deteriorated since the vacated 1996 decision, the ALJ’s prior evaluation is
insufficient to deny Moore another evaluation of her mental impairments’ effect on
her RFC through the date of the ALJ’s 2001 decision.
We thus join our sister circuits in holding that where a claimant has
presented a colorable claim of mental impairment, the social security regulations
require the ALJ to complete a PRTF and append it to the decision, or incorporate
its mode of analysis into his findings and conclusions. Failure to do so requires
remand. See Gutierrez v. Apfel, 199 F.3d 1048, 1051 (9th Cir. 2000) (Schroeder,
C.J.) (where claimant presents colorable claim of mental impairment, ALJ’s failure
to comply with PRTF regulations requires remand); Stambaugh v. Sullivan, 929
F.2d 292, 296 (7th Cir. 1991) (ALJ’s failure to evaluate claimant’s alleged mental
disorder or to document the procedure on a PRTF required reversal); Hill v.
Sullivan, 924 F.2d 972, 975 (10th Cir. 1991) (same); Montgomerty v. Shalala, 30
F.3d 98, 100 (8th Cir. 1994) (reversing and remanding because ALJ purported to
evaluate mental disorder, but failed to do so according to PRTF and its
regulations).
12
The judgment of the district court is reversed and the case is remanded with
instructions to remand the matter to the ALJ for an evaluation of Moore’s mental
impairments that complies with the applicable regulations.
REVERSED AND REMANDED.
13
Christi L. Moore v. Jo Anne B. Barnhart
Court: Court of Appeals for the Eleventh Circuit
Date filed: 2005-04-12
Citations: 405 F.3d 1208
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