Zechenelly v. Social Security Administration

Filing 21

ORDER ADOPTING REPORT AND RECOMMENDATIONS 15 . Signed by Judge Ivan L.R. Lemelle.(ijg, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CYNTHIA ZECHENELLY

CIVIL ACTION

VERSUS

NO. 13-403

CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION

SECTION "B"(5)

ORDER AND REASONS
The Court, having reviewed De Novo the complaint, the
parties' cross motions for summary judgment, the record, the
applicable law, the Magistrate Judge's Report and Recommendation,
and Cynthia Zechenelly's objections thereto, hereby approves and
adopts the Magistrate Judge's Report as modified herein. (Rec.
Docs. 1, 10, 12, 14, 15, & 18).
Accordingly, IT IS ORDERED that:
(i) Zechenelly's Objections are OVERRULED and the Court
AFFIRMS AND ADOPTS the Magistrate Judge's Report and
Recommendation.
(ii) Zechenelly's Motion for Summary Judgement (Rec. Doc.
12) be DENIED and the Commissioner's Cross Motion for
Summary Judgement (Rec. Doc. 14) be GRANTED. And,
accordingly,
(iii) Zechenelly's petition for review of the final decision
of the Commissioner of the Social Security Administration be
DISMISSED WITH PREJUDICE(Rec. Doc. 1).
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This case arises out of the Commissioner's denial of
Zechenelly's application for Disability Benefits under the Social
Security Act. (Rec. Doc. No. 12-1). She seeks benefits for
disability due to rheumatoid arthritis ("RA"), cirrhosis, bipolar
disorder, anxiety, ADHD, and other conditions. (Rec. Docs. 12-1
at 1-5 & 10-4 at 78). The Commissioner denied her present
application for disability benefits on February 10, 2011 (Rec.
Doc. 10-2 at 107). Zechenelly then went before an ALJ, with the
assistance of counsel, who denied her application on December 22,
2011. Id. at 31-42. The Appeals Council subsequently denied her
request for review, and she then sought judicial review. (Rec.
Docs. 1 & 10-2 at 2-5). Pursuant to 28 U.S.C. §636(b) and Local
Rule 73.2(B), Magistrate Judge Chasez heard the matter and
recommended granting the Commissioner's Motion for Summary
Judgment. (Rec. Doc. 15 at 36). Zechenelly then filed the instant
opposition, raising four objections. (Rec. Doc. 18).
In her first two objections to the Magistrate Judge's
Report, Zechenelly essentially contends that the ALJ erred
because she failed to fully develop the record and address the
records of Zechenelly's treating rheumatologist, Dr. Sedrish, and
treating interist, Dr. Butt. (Rec. Doc. 18 at 1-4). As the
Magistrate noted, an ALJ is not required to specifically discuss
all evidence that she considers. See, e.g., Falco v. Shalala, 27
F.3d 160, 163-164 (5th Cir. 1994)(refusing to adopt the Third

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Circuit's rule requiring ALJ's to recite all rejected evidence
and stating that an ALJ need not "follow formalistic rules" for
articulating rejection of complaints of pain). Moreover, an ALJ's
failure to develop the record is not grounds for reversal per se.
Rather, a "claimant must, in addition, show that she was
prejudiced as a result of scanty hearing." Kane v. Heckler, 731
F.2d 1216, 1220 (5th Cir. 1984). To establish prejudice, a
claimant must demonstrate that she “could and would have adduced
evidence that might have altered the result.” Id. Here, as the
Magistrate amply explained, the records of both doctors fail to
establish that Zechenelly was unable to work during the relevant
time period. They show no proscription of activity or otherwise
provide grounds for a finding of disability.
Zechenelly's two remaining objections also lack merit. They
concern the Magistrate's conclusions concerning testimony of the
Vocational Expert ("VE") who testified before the ALJ. (Rec. Doc.
18 at 4-5). These objections are essentially a recitation of the
fourth assignment of error in her summary judgment memorandum,
wherein Zechenelly argues that the ALJ erred in (i) "formulating
an incoherent RFC" that fails to account the severe impairments
otherwise found, and (ii) relying on flawed VE testimony. (Rec.
Doc. 12-1 at 18-19). Zechenelly essentially argues that the ALJ's
determination that she could perform "light work . . . except the
claim needs a sit/stand option, allowing the claimant to sit or

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stand at will provided she is not off task more than 10% of the
work period" is injuriously vague. Id. at 19.

She further

contends that because this vague statement informed a
hypothetical question posed to the testifying VE, and because the
ALJ relied on the VE's answer, the ALJ's finding of residual
functional capacity was "incoherent." Id.
A putatively defective hypothetical question will require
reversal where either (i) the question does not reasonably
incorporate all disabilities recognized by the ALJ, or (ii) the
claimant was not afforded the opportunity to correct any
deficiencies in the question. Bowling v. Shalala, 36 F.3d 431,
436 (5th Cir. 1994). Here, the ALJ's question reasonably
incorporated Zechenelly's impairments and Zechenelly was afforded
the opportunity to clarify and correct deficiencies, having
crossed the VE and asked her own hypothetical. In other words,
Zechenelly's argument fails because the ALJ's statement was not
materially vague or misleading and she was nevertheless allowed
to clarify any ambiguities at the time of the testimony.
In summary, the ALJ's conclusions are supported by
substantial evidence in the record and Zechenelly's objections
are without merit. Accordingly, it is ORDERED that Zechenelly's
Objections are OVERRULED, the court AFFIRMS AND ADOPTS the
Magistrate Judge's Report and Recommendation, Zechenelly's Motion
for Summary Judgement (Rec. Doc. 12) is DENIED, the
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Commissioner's Motion for Summary Judgement (Rec. Doc. 14) is
GRANTED, and Zechenelly's petition is DISMISSED WITH
PREJUDICE(Rec. Doc. 1).

New Orleans, Louisiana, this 19th day of February, 2014.

________________________________
UNITED STATES DISTRICT JUDGE

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