Keller v. Astrue

Filing 20

RULING: The decision of the Commissioner is AFFIRMED and Plaintiffs appeal is DISMISSED with prejudice. Signed by Magistrate Judge Richard L. Bourgeois, Jr on 9/25/2013. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

LINDA S. KELLER

CIVIL ACTION

VERSUS

NUMBER 12-335-RLB

MICHAEL J. ASTRUE, COMMISSIONER
OF SOCIAL SECURITY

CONSENT CASE

RULING
Plaintiff, Linda S. Keller (“Plaintiff”), seeks judicial review of a final decision of the
Commissioner of the Social Security Administration (the “Commissioner”) pursuant to 42
U.S.C. § 405(g) denying Plaintiff’s application for disability insurance benefits “under Title II
and part A of Title XVIII of the Social Security Act.” (Tr. 98-104). 1 Both parties having
consented to proceed before a United States Magistrate Judge and the case was transferred to this
Court for all further proceedings and entry of judgment pursuant to 28 U.S.C. § 636(c). For the
reasons assigned below, the decision of the Commissioner is AFFIRMED and Plaintiff’s appeal
is DISMISSED with prejudice.
I.

PROCEDURAL HISTORY
On or about December 15, 2009, Plaintiff filed an application for benefits alleging a

disability onset date of November 5, 2009. (Tr. 98). The claim was initially denied and Plaintiff
filed a timely request for a hearing that was held on November 30, 2010 at which Plaintiff,

1

References to documents filed in this case are designated by “(R. Doc. [docket entry number(s)] at [page
number(s)])”. Reference to the record of administrative proceedings filed in this case is designated by “(Tr. [page
number(s)])”.

1

represented by counsel, appeared and testified. (Tr. 29-53). A vocational expert (“VE”), Ms.
Beverly Majors, also testified at the hearing. (Tr. 47-52).
An unfavorable decision was rendered by the Commissioner, through the Administrative
Law Judge (“ALJ”), on January 11, 2011 (Tr. 17-25), finding that Plaintiff had not been under a
disability from the alleged onset date of November 5, 2009 through the date of the decision.
Plaintiff’s request for review was denied by the Appeals Council on April 26, 2012. (Tr. 1-3).
The ALJ’s decision rested as the final decision when the Appeals Council denied the claimant’s
request for review. See 20 C.F.R. § 404.981 (“The Appeals Council's decision, or the decision of
the administrative law judge if the request for review is denied, is binding unless you . . . file an
action in Federal district court . . . .”). The ALJ’s final decision is now ripe for review under 42
U.S.C. § 405(g).
II.

STANDARD OF REVIEW
This Court’s review of the Commissioner’s decision is limited to an inquiry into whether

there is substantial evidence to support the findings of the Commissioner and whether the correct
legal standards were applied. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401
(1971); Falco v. Shalala, 27 F.3d 160, 162 (5th Cir. 1994); Villa v. Sullivan, 895 F.2d 1019,
1021 (5th Cir. 1990). Substantial evidence has been defined as “‘more than a mere scintilla. It
means such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.’” Richardson, 402 U.S. at 401 (quoting Consolidated Edison Co. of N.Y. v. N.L.R.B.,
305 U.S. 197, 229 (1938) (defining “substantial evidence” in the context of the National Labor
Relations Act, 29 U.S.C. § 160(e)). The Fifth Circuit has further held that substantial evidence
“must do more than create a suspicion of the existence of the fact to be established, but no
substantial evidence will be found only where there is a conspicuous absence of credible choices

2

or no contrary medical evidence.” Hames v. Heckler, 707 F.2d 162, 164 (5th Cir. 1983)
(quotations omitted). Conflicts in the evidence are for the Commissioner “and not the courts to
resolve.” Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir. 1990). The court may not reweigh the
evidence, try the case de novo, or substitute its own judgment for that of the Commissioner even
if it finds that the evidence preponderates against the Commissioner’s decision. See, e.g.,
Bowling v. Shalala, 36 F.3d 431, 434 (5th Cir. 1994) (“This is so because substantial evidence is
less than a preponderance but more than a scintilla.”); Hollis v. Bowen, 837 F.2d 1378, 1383 (5th
Cir. 1988) (“we must carefully scrutinize the record to determine if, in fact, such evidence is
present; at the same time, however, we may neither reweigh the evidence in the record nor
substitute our judgment for the Secretary’s”); Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir.
1988) (same).
If the Commissioner’s decision is supported by substantial evidence, then it is conclusive
and must be upheld. Estate of Morris v. Shalala, 207 F.3d 744, 745 (5th Cir. 2000). If the
Commissioner fails to apply the correct legal standards, or fails to provide a reviewing court with
a sufficient basis to determine that the correct legal principles were followed, it is grounds for
reversal. Bradley v. Bowen, 809 F.2d 1054, 1057 (5th Cir. 1987).
III.

ALJ’S DETERMINATION
In determining disability, the Commissioner, through the ALJ, works through a five-step

sequential evaluation process. See 20 C.F.R. § 404.1520(a)(4). The burden rests upon the
claimant throughout the first four steps of this five-step process to prove disability. If the
claimant is successful in sustaining his or her burden at each of the first four steps, the burden
shifts to the Commissioner at step five. See Muse v. Sullivan, 925 F.2d 785, 789 (5th Cir. 1991)
(explaining the five-step process). First, the claimant must prove he is not currently engaged in

3

substantial gainful activity. 20 C.F.R. § 404.1520(b). Second, the claimant must prove his or her
impairment is “severe” in that it “significantly limits your physical or mental ability to do basic
work activities . . . .” 20 C.F.R. § 404.1520(c). At step three the ALJ must conclude the claimant
is disabled if he proves that his or her impairments meet or are medically equivalent to one of the
impairments contained in the Listing of Impairments. See 20 C.F.R. § 404.1520(d) (step three of
sequential process); 20 C.F.R. pt. 404, subpt. P, app. 1 (Listing of Impairments). Fourth, the
claimant bears the burden of proving he is incapable of meeting the physical and mental
demands of his or her past relevant work. 20 C.F.R. § 404.1520(f).
If the claimant is successful at all four of the preceding steps then the burden shifts to the
Commissioner to prove, considering the claimant’s residual functional capacity, age, education
and past work experience, that he or she is capable of performing other work. 20 C.F.R §
404.1520(g)(1). If the Commissioner proves other work exists which the claimant can perform,
the claimant is given the chance to prove that he or she cannot, in fact, perform that work. Muse,
925 F.2d at 789.
In the ALJ’s decision, the ALJ first found that Plaintiff met the insured status
requirements of the Act and that Plaintiff had not engaged in substantial gainful activity from her
alleged onset date of November 5, 2009. (Tr. 19). At the second step, the ALJ found that
Plaintiff had the following severe impairments: degenerative disc disease, degenerative joint
disease of the right hip, obesity and depressive disorder. (Tr. 19). At step three, the ALJ found
that Plaintiff did not have an impairment or combination of impairments meeting or medically
equaling one of the listed impairments. (Tr. 19-21). The ALJ specifically considered Listing
1.04A for disorders of the spine and Listing 12.04 for affective disorders.

4

The ALJ determined that Plaintiff has the residual functional capacity (“RFC”) to
perform sedentary work, as defined in 20 C.F.R. § 404.1567(a), limited to simple, unskilled work
up to SVP (“specific vocational preparation”) 3 level work. (Tr. 21). The ALJ determined that
Plaintiff’s complaints of disabling symptoms and limitations were not credible to the extent
alleged. (Tr. 21-22). At the fourth step, the ALJ found that Plaintiff was unable to perform any
past relevant work because such work exceeds the limitations of the above referenced RFC. (Tr.
23). At the fifth step, the ALJ elicited testimony from Beverly Majors, a vocational expert
(“VE”), to determine the extent to which Plaintiff’s impairments and limitations “erode the
unskilled sedentary occupational base.” (Tr. 24, 47-52). Based on the aforementioned RFC, and
considering Plaintiff’s age, education and work experience, the ALJ found that there were jobs
that existed in significant numbers in the national economy that Plaintiff could perform. (Tr. 2425). The ALJ concluded that Plaintiff had not been under a disability, as defined by the Social
Security Act, at any time from the alleged onset date through the date of the decision. (Tr. 25).
IV.

PLAINTIFF’S ALLEGATIONS OF ERROR AND COMMISSIONER’S
RESPONSE
Plaintiff alleges that the ALJ was in error (R. Doc. 15). She claims that the ALJ’s

assessment of RFC and of Plaintiff’s credibility was unsupported by substantial evidence (R.
Doc. 15 at 7). This led to reliance on the VE’s testimony based on a faulty hypothetical.
Plaintiff also alleges that the ALJ’s findings at step three were ambiguous, overly broad and
contradicted by substantial evidence (R. Doc. 15 at 10).
The Commissioner responds that the ALJ performed a proper credibility analysis by
considering Plaintiff’s subjective complaints at the hearing as well as the objective medical
evidence in the record (R. Doc. 17 at 4-8). The ALJ discussed Plaintiff’s daily activities, the
nature of her medical treatments, her lack of specialized mental health care, the reason she
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discontinued work, and the inconsistencies between Plaintiff’s complaints when compared to
other evidence. The ALJ’s credibility analysis was proper and the hypotheticals posed to the VE
included those limitations that the ALJ found were established and supported by the record. The
Commissioner also responds that the ALJ performed a proper listing analysis and that the ALJ
explained why Plaintiff did not satisfy all of the criteria for any of the Listings (R. Doc. 17 at 810).
V.

ANALYSIS
A.

ALJ’s Residual Functional Capacity Assessment

The ALJ determined that Plaintiff had the residual functional capacity (“RFC”) “to
perform sedentary work . . . limited to simple, unskilled up to SVP 3 level work.” (Tr. 21).
According to the regulations, sedentary work involves:
lifting no more than 10 pounds at a time and occasionally lifting or carrying
articles like docket files, ledgers, and small tools. Although a sedentary job is
defined as one which involves sitting, a certain amount of walking and standing is
often necessary in carrying out job duties. Jobs are sedentary if walking and
standing are required occasionally and other sedentary criteria are met.
20 C.F.R. § 404.1567(a). Unskilled work is work which may not require considerable strength
and “which needs little or no judgment to do simple duties that can be learned on the job in a
short period of time” — typically 30 days. 20 C.F.R. § 404.1568(a). A specific vocational
preparation (“SVP”) time of 3 to 4 corresponds to “semi-skilled work.” SSR 00-4P. 2 Semiskilled work typically requires “some skills but does not require doing the more complex work
duties. Semi-skilled jobs may require alertness and close attention . . . .” 20 C.F.R. §
404.1568(b).

2

The specific vocational preparation time for a given occupation is described in the Department of Labor’s
Dictionary of Occupational Titles (“DOT”). SSR 00-4P.

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Plaintiff argues the ALJ’s determination is not supported by substantial evidence for two
reasons. First, Plaintiff suggests the ALJ failed to consider relevant evidence in the record which
supports her disability. (R. Doc. 15 at 8). Second, Plaintiff argues the ALJ erroneously
determined her complaints regarding the level and severity of her pain were not credible. (R.
Doc. 15 at 8). After reviewing the entire record, the Court finds the ALJ’s RFC determination is
supported by substantial evidence.
i.

Review of Objective Medical Evidence

The ALJ “is responsible for assessing the medical evidence and determining the
claimant’s residual functional capacity.” Perez v. Heckler, 777 F.2d 298, 302 (5th Cir. 1985).
The ALJ’s RFC decision can be supported by substantial evidence even if the ALJ does not
specifically discuss all the evidence that supports his or her decision or all the evidence that he or
she rejected. Falco, 27 F.3d at 163-64. A reviewing court must defer to the ALJ’s decision when
substantial evidence supports it, even if the court would reach a different conclusion based on the
evidence in the record. Johnson v. Bowen, 864 F.2d 340, 343 (5th Cir. 1988); Leggett v. Chater,
67 F.3d 558, 564 (5th Cir. 1995). The court “may only scrutinize the record” and take into
account whatever fairly detracts from the substantiality of the evidence supporting the ALJ's
decision. Leggett, 67 F.3d at 564. Accordingly, a “no substantial evidence” finding is
appropriate only if there is a conspicuous absence of credible evidentiary choices or no contrary
medical findings to support the ALJ’s decision. Johnson, 864 F.2d at 343-44.
Plaintiff alleges the ALJ ignored her (1) marked stenosis, (2) bony neural foraminal
narrowing, (3) limited range of motion in extension, (4) antalgic gait, (5) motor weakness, (6)
positive straight leg raising test and (7) sensory loss in her right femoral cutaneous nerve
distribution, in assessing her RFC. (R. Doc. 15 at 8).

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Contrary to Plaintiff’s argument, the ALJ sufficiently discussed and considered the
objective medical evidence contained in the record. Specifically, the ALJ noted that her medical
records indicated some decreased range of motion, muscle spasm, lumbar disc herniation with
radiculopathy and findings of spinal stenosis. (Tr. 22). The ALJ also took into account
Plaintiff’s concentration and memory issues associated with her mental impairments. (Tr. 23).
The ALJ extensively considered Plaintiff’s obesity and recent weight gain and any affect it may
have on her impairments. (Tr. 22). The ALJ found that the record did not support a
determination that Plaintiff’s recent weight gain caused any “additional significant limitations.”
(Tr. 22).
The Court has reviewed the record and finds that the ALJ’s RFC determination is
supported by substantial evidence. Plaintiff devotes time in both her brief and reply to argue that
the ALJ failed to note that the stenosis was “marked.” Contrary to Plaintiff’s complaint that this
was not considered by the ALJ, it is specifically noted in the decision that there was stenosis at
the L3-4 and L4-5 (Tr. 22). Other than her protest, Plaintiff offers nothing to indicate the import
of Dr. Trahan’s use of the adjective “marked” – simply indicating that the stenosis was evident
or clearly noticeable. The medical documentation in the record likewise reflects these findings
but gives them no added significance. On July 31, 2008, Dr. Robert Trahan, a radiologist,
described his review of Plaintiff’s CT scan of the lumbar spine. At both L3-4 and L4-5, Dr.
Trahan found “generalized disc bulging . . . with an acquired spinal stenosis at this level.” (Tr.
212). After describing each lumbar region, Dr. Trahan found: “There is evidence of generalized
bulging and associated spinal stenosis at L3-4 and L4-5 with the findings most marked at the L45 level.” (Tr. 212). Again, the ALJ noted this in his RFC assessment. Plaintiff’s records also
indicate a finding of bilateral neural foraminal narrowing, however, those findings were only

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“mild.” (Tr. 324). Plaintiff’s records also show that she denied having any “weakness” and had a
motor strength of 5/5, “normal” gait and “intact” sensation. (Tr. 319-320). 3
Therefore, the ALJ’s RFC determination and the objective medical evidence discussed in
his decision convince the Court that he considered all of the available objective medical evidence
and all of Plaintiff’s symptoms and impairments. The Court’s conclusion is bolstered by the
ALJ’s determination of Plaintiff’s severe impairments, which included degenerative disc disease,
degenerative joint disease of the right hip, obesity and depressive disorder. (Tr. 19). However,
despite these severe impairments, the ALJ appropriately found they were not so debilitating that
Plaintiff was incapable of engaging in any type of substantial gainful activity.
ii.

Credibility

In assessing credibility, the ALJ must consider the entire record, including medical signs
and laboratory findings and statements by the claimant and his or her treating or examining
sources concerning the alleged symptoms and their effects. 20 C.F.R. § 404.1529(c)(1).
Additionally, the regulations provide a non-exclusive list of factors that the ALJ must consider.
See 20 C.F.R. § 404.1529(c) (2011). 4 Nevertheless, the Fifth Circuit has held that the ALJ is not
required to follow “formalistic rules” in assessing credibility, and the ALJ must articulate his or
3

Additional evidence contained in Plaintiff’s medical records, which demonstrates that the ALJ’s determination was
supported by substantial evidence, is discussed in subsequent sections.

4

These factors include:
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)

Your daily activities;
The location, duration, frequency, and intensity of your pain or other symptoms;
Precipitating and aggravating factors;
The type, dosage, effectiveness, and side effects of any medication you take or have taken to
alleviate your pain or other symptoms;
Treatment, other than medication, you receive or have received for relief of your pain or other
symptoms;
Any measures you use or have used to relieve your pain or other symptoms (e.g., lying flat on
your back, standing for 15 to 20 minutes every hour, sleeping on a board, etc.); and
Other factors concerning your functional limitations and restrictions due to pain or other
symptoms.

20 C.F.R. § 404.1529(c)(3).

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her reasons for rejecting a claimant’s subjective complaints only “when the evidence clearly
favors the claimant.” Falco, 27 F.3d at 163.
Ultimately, the mere existence of pain is not an automatic ground for disability, and
subjective evidence of pain does “not take precedence over conflicting medical evidence.”
Harper v. Sullivan, 887 F.2d 92, 96 (5th Cir. 1989). Likewise, an individual’s statements
regarding pain and other symptoms alone are not conclusive evidence of disability and must be
supported by objective evidence of a medical impairment that could reasonably be expected to
produce the pain or other symptoms alleged. Harper, 887 F.2d at 96 (quoting 42 U.S.C. §
423(d)(5)(A)).
The ALJ began his credibility assessment by acknowledging that Plaintiff’s “lower back
and leg problems, headaches, and anxiety” could reasonably be expected to produce lower back
and right leg pain and cause issues with concentration and focus — the symptoms that Plaintiff
alleges. (Tr. 21). Nonetheless, he found Plaintiff’s “statements concerning the intensity,
persistence and limiting effects” of her alleged symptoms were not supported by objective
evidence. (Tr. 21). Before making this determination, the ALJ considered Plaintiff’s medical
records, daily activities, testimony and reasons for leaving her previous employment.
The ALJ indicated that Plaintiff’s medical records contradicted her allegations of pain,
pointing out that Plaintiff had received “essentially routine and conservative” treatment “for the
allegedly disabling impairments” (Tr. 23). See Franzen v. Astrue, 555 F. Supp. 2d 720, 730-31
(W.D. Tex. 2008) (affirming denial of benefits and noting ALJ considered, among other things,
that “plaintiff had received . . . conservative care” (medication) “for his back complaints . . . ,
suggesting . . . plaintiff's back pain was not as constant or severe as plaintiff alleged it to be.”).
He noted an absence of any “clinically diagnosed muscle atrophy in the allegedly affected

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muscle groups — a clear sign that the claimant must have been using those muscles in a manner
contrary to someone dealing with allegedly constant debilitating pain.” (Tr. 23). The ALJ also
concluded that Plaintiff’s symptoms and impairments were not as severe as alleged because she
had not exhibited any “motor, sensory, neurological, reflex or circulatory deficits on clinical
examination.” (Tr. 23).
These determinations are supported by the medical evidence contained in the record.
Plaintiff’s medical records indicate that her muscle strength is consistent with an absence of
atrophy. See Puckett v. Astrue, No. 12-2059, 2012 WL 5902427, at *4 n.1 (W.D. Ark. Nov. 6,
2012) (“Atrophy is defined as the wasting or loss of muscle tissue.”); 20 C.F.R., pt. 404, subpt.
P, app. 1 § 1.04A) (associating atrophy with muscle weakness and motor loss). Dr. Dennis
found Plaintiff’s motor strength was a 5/5. (Tr. 330). Likewise, Dr. Michael Romaguera
consistently opined that her “motor strength in all extremities” was a 5/5. (Tr. 313).
Plaintiff’s records establish that she “ambulates without difficulty,” which is consistent
with the ALJ’s determination that Plaintiff has not exhibited any motor deficiencies (Tr. 313).
See 20 C.F.R., pt. 404, supbt. P, app. 1 § 1.00B2b(1) (“Inability to ambulate effectively means an
extreme limitation of the ability to walk . . . .”).
The ALJ then appropriately considered “the claimant’s daily activities” in conjunction
with her alleged level and severity of symptoms. See Leggett, 67 F.3d at 565 n.12 (considering
plaintiff’s contradictory testimony that he “was able to care for his three daughters, perform
household chores, cut the grass in small increments, and even walk up to six blocks at a time” to
discount his allegations of pain. Id. at 565). Plaintiff testified that “a lot of standing and a lot of
walking, lifting” aggravates her condition. (Tr. 37). Plaintiff then explained that she could walk
for no more than 15 minutes and stand for 10 to 15 minutes before having to sit, but that she

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could sit for no more than 15 to 20 minutes before having to get up. (Tr. 40-41). Alternating
positions, according to the Plaintiff, is necessitated by her pain. Nonetheless, when asked about
her daily activities, Plaintiff inconsistently responded that she takes her “medications and
basically sit[s] on the couch on a heating pad.” (Tr. 37). Specifically, Plaintiff estimated that she
spent an average of 8 hours a day “[s]itting on the couch with my legs elevated with the heating
pad to my back and a pillow.” (Tr. 45) (“About eight hours.”). Based on Plaintiff’s own account,
the ALJ appropriately discredited Plaintiff’s alleged need to alternate positions roughly every 20
minutes. The Court further notes that an ability to sit for 8 hours at a time is consistent with
sedentary work — Plaintiff’s RFC. See Falco, 27 F.3d at 163 (ALJ’s RFC of sedentary work was
supported by substantial evidence considering plaintiff was “capable of sitting most of the day”).
Likewise, when asked how much she could lift, Plaintiff responded that she thought she
could lift “[o]ne to three pounds.” (Tr. 41). However, Plaintiff also answered affirmatively when
asked whether she could lift a gallon of milk, which weighs roughly 8.5 pounds (Tr. 41). 5
Plaintiff also explained that her medications helped her symptoms and that she “wouldn’t be able
to manage without them,” which does not support a finding of debilitating pain (Tr. 40). See
Selders v. Sullivan, 914 F.2d 614, 618-19 (5th Cir. 1990) (“Pain constitutes a disabling condition
under the Social Security Act only when it is constant, unremitting, and wholly unresponsive to
therapeutic treatment.”) (quotations omitted).
Plaintiff also alleges the ALJ completely ignored her Minnesota Multiphasic Personality
Inventory (“MMPI”) results and her allegations of concentration and memory issues. To the
contrary, the ALJ considered Plaintiff’s mental impairments in his opinion (Tr. 20-21) and

5

See Lowe v. Ubanks, No. 13-1265, 2013 WL 3558200, at *1 n.1 (W.D. La. July 11, 2013) (“A gallon of milk
weighs approximately 8.5 lbs.”); Bryant v. Colvin, No. 12-1222, 2013 WL 4413336, at *8 (W.D. La. Aug. 14, 2013)
(8.33 pounds); Aviles v. Astrue, No. 11-301, 2012 WL 10982774, at *4 (S.D. Tex. March 6, 2012) (8.8 pounds).

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determined that Plaintiff suffered from depressive disorder, which constituted a severe
impairment (Tr. 19). Additionally, the ALJ considered Plaintiff’s allegations of concentration
and memory difficulties, but found them not credible.
According to Plaintiff, her mental impairments prevent her from concentrating and she
experiences difficulties when trying to think or remember. (Tr. 44). However, she testified that
during the day she often worked crossword puzzles and read books. (Tr. 38). Plaintiff was asked
whether she had “any difficulties completing the puzzles . . . or reading.” (Tr. 44). She
responded that she completed the crossword puzzles, but rarely read the books to completion —
not due to concentration issues; instead, she “los[t] interest in it.” (Tr. 44-45). As the ALJ
discussed, this testimony does not support, and in fact contradicts, Plaintiff’s allegations that she
is unable to maintain concentration and cannot recall information. Therefore, Plaintiff is
incorrect in arguing the ALJ ignored her mental impairments. He considered them, but found
them less severe and debilitating than Plaintiff alleged.
B.

Vocational Expert

Plaintiff argues that the ALJ committed reversible error by failing to incorporate any
sit/stand options as well as her MMPI results in his hypotheticals posed to the vocational expert.
In Bowling v. Shalala, the Fifth Circuit articulated the test for determining when a defective
hypothetical question to a vocational expert will produce reversible error:
Unless the hypothetical question posed to the vocational expert by the ALJ can be
said to incorporate reasonably all disabilities of the claimant recognized by the
ALJ, and the claimant or his representative is afforded the opportunity to correct
deficiencies in the ALJ's question by mentioning or suggesting to the vocational
expert any purported defects in the hypothetical questions (including additional
disabilities not recognized by the ALJ's findings and disabilities recognized but
omitted from the question), a determination of non-disability based on such a
defective question cannot stand.
36 F.3d 431, 436 (5th Cir.1994).
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Plaintiff correctly identifies the absence of any sit/stand option or mental impairment
discussion in the ALJ’s hypothetical questions. (Tr. 50-51). This is consistent with the ALJ’s
RFC determination. Furthermore, in accordance with Bowling, Plaintiff’s attorney was “afforded
the opportunity to correct deficiencies in the ALJ’s question” on cross examination of the
vocational expert (Tr. 51-52). Bowling, 36 F.3d at 436. During his questioning, Plaintiff’s
counsel incorporated the following limitations: (1) having to “alternate between sitting, standing,
and walking, due to chronic pain;” and (2) “only occasionally be[ing] able to sustain satisfactory
concentration, persistence, and pace for up to one-third of the workday” due to “chronic pain and
a grief reaction.” (Tr. 51-52).
Despite Plaintiff’s suggestions, the ALJ’s opinion took into consideration her counsel’s
hypothetical questions. (Tr. 24). The ALJ discredited them, however, because they incorporated
the same limitations the ALJ had previously found not credible. The Court has found that the
ALJ’s RFC determination, without the limitations proposed by her counsel, was supported by
substantial evidence. Therefore, Plaintiff’s allegation of reversible error is without merit.
C.

ALJ’s Listing Analysis

At step three, the ALJ considers the severity of the claimant’s impairments without
regard to vocational factors. The ALJ applies the Social Security Administration’s Listing of
Impairments, which “describes for each of the major body systems impairments that [the SSA]
consider[s] to be severe enough to prevent an individual from doing any gainful activity,
regardless of his or her age, education, or work experience.” 20 C.F.R. § 404.1525(a). A
claimant whose impairment (or combination of impairments) meets or equals the criteria of a
Listing is disabled and entitled to benefits. For that reason, the criteria in the Listings are
“demanding and stringent.” Falco, 27 F.3d at 162. “For a claimant to show that his impairment

14

matches a listing, it must meet all of the specified medical criteria.” Sullivan v. Zebley, 493 U.S.
521, 530 (1990). An impairment that exhibits only some of the criteria, no matter how severely,
does not qualify. Sullivan, 493 U.S. at 529-32.
The ALJ should identify the listed impairment for which the claimant’s symptoms fail to
qualify and provide an explanation as to how he or she determined that the symptoms are
insufficiently severe to meet any listed impairment. A bare and summary conclusion that a
plaintiff does not meet the criteria of any Listing is beyond meaningful judicial review. Audler v.
Astrue, 501 F.3d 446, 448 (5th Cir. 2007). Even if a court determines that the ALJ failed to state
the reasoning for an adverse determination at step three, a reviewing court must still evaluate
whether the error was harmless. Audler, 501 F.3d at 448.
The ALJ here determined that, “[a]lthough the claimant has severe impairments, they do
not meet the criteria of any listed impairments . . . , specifically 1.04(A).” 6 (Tr. 19). Listing
1.04A describes disorders of the spine:
Disorders of the spine (e.g., herniated nucleus pulposus, spinal arachnoiditis,
spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis, vertebral
fracture), resulting in compromise of a nerve root (including the cauda equina) or
the spinal cord. With:
A. Evidence of nerve root compression characterized by neuro-anatomic
distribution of pain, limitation of motion of the spine, motor loss (atrophy with
associated muscle weakness or muscle weakness) accompanied by sensory or
reflex loss and, if there is involvement of the lower back, positive straight-leg
raising test (sitting and supine) . . . .
20 C.F.R. pt. 404, subpt. P, app. 1 § 1.04A. The ALJ’s limited explanation states that “[n]o
treating or examining physician has mentioned findings equivalent in severity to the criteria of

6

The ALJ also considered Listing 12.04 and determined it was inapplicable. Plaintiff does not allege any error with
respect to that determination.

15

any listed impairment of the Listing of Impairments” and “the State Agency medical consultant .
. . has reached the same conclusion.” (Tr. 19). 7
Plaintiff alleges the “ALJ’s findings at step 3 were ambiguous, overly broad and
contradicted by substantial evidence.” (R. Doc. 15 at 10). The Court agrees with Plaintiff to the
extent she argues the ALJ’s opinion is “ambiguous” and “overly broad.” The ALJ fails to point
to any objective medical evidence in the record to support his conclusion and his bare and
conclusory determination was erroneous. See Audler, 501 F.3d at 448.
Even having determined that it was error for the ALJ to fail to state the reasons for his
step three determination that Plaintiff did not meet Listing 1.04A, the Court must continue to a
harmless error analysis. See Morris v. Bowen, 864 F.2d 333, 334 (5th Cir. 1988). Procedural
perfection is not required in administrative hearings, and a court will not vacate a judgment
unless “the substantial rights of a party have been affected.” Mays v. Bowen, 837 F.2d 1362,
1364 (5th Cir. 1988). Thus, Plaintiff must establish that the ALJ's error casts into doubt the
existence of substantial evidence to support the ALJ’s decision. See Morris, 864 F.2d at 335.
Plaintiff alleges “the ALJ’s assertion that no treating or examining physician has even
mentioned findings equivalent to Listing 1.04(A) is clearly wrong.” (R. Doc. 15 at 11).
According to Plaintiff, the ALJ ignored the record evidence indicating (1) “neurological deficits
consistent with a lumbar radiculopathy,” (2) “marked spinal stenosis,” (3) “limited range of
motion in extension,” (4) “a positive straight leg raising test,” (5) “sensory loss,” (6) “slow and
guarded antalgic gait,” and (7) “motor weakness in foot and plantar flexion.” (R. Doc. 15 at 11).

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Plaintiff additionally argues that the ALJ’s decision is erroneous because he inappropriately treated the State
Agency Medical Consultant’s opinion as a medical opinion, and therefore, afforded it too much weight. (R. Doc. 15
at 11). The Court notes that the ALJ’s decision does not give any indication that the ALJ treated the medical
consultant’s opinion as a medical one. Because the Court finds the ALJ’s analysis is too conclusory to allow for any
meaningful judicial review, but finds that any error was harmless, the Court need not address this argument.

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Contrary to Plaintiff’s assertions, the record does not indicate that her impairments meet
or equal the criteria of Listing 1.04A. See Sullivan, 493 U.S. at 530 (“An impairment that
manifests only some of those criteria, no matter how severely, does not qualify.”). First, Listing
1.04A requires “[e]vidence of nerve root compression characterized by neuro-anatomic
distribution of pain, limitation of motion of the spine, [and] motor loss (atrophy with associated
muscle weakness or muscle weakness) accompanied by sensory or reflex loss and, if there is
involvement of the lower back, positive straight-leg raising test (sitting and supine) . . . .”
At several instances, the record states that Plaintiff’s physicians have found “[n]o
definitive root impingement.” (Tr. 324); (Tr. 326) (“no definite . . . nerve root impingement.”).
At one time, Dr. Dennis indicates that Plaintiff’s July 22, 2010 CT scan showed “root
compression,” but he characterized that compression as “mild over the areas.” (Tr. 319). The CT
scan referenced by Dr. Dennis was ordered by him and interpreted by Dr. David Hoff, a
radiologist. Dr. Hoff specifically found no evidence of nerve root impingement and likewise
makes no mention of compression. (Tr. 324). The record does not indicate whether Dr. Dennis
conducted his own review of the CT scan or was opining on the report that he ordered from Dr.
Hoff, which was contained in the records provided by Dr. Dennis.
Plaintiff points to a finding of “marked spinal stenosis” at L4-5 in both her appeal and
reply brief. (R. Doc. 15 at 11, R. Doc. 18 at 1-2). As previously discussed, Dr. Trahan found
“generalized disc bulging . . . with an acquired spinal stenosis at this level” based on a CT scan
conducted July 31, 2008. (Tr. 212). Dr. Trahan’s overall “impression” was that: “There is
evidence of generalized bulging and associated spinal stenosis at L3-4 and L4-5 with the findings
most marked at the L4-5 level.” (Tr. 212). No evidence of nerve root compression or
impingement was noted. Dr. Reina’s observation of an MRI of Plaintiff’s lumbar spine

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conducted on November 6, 2008 found “no scoliosis,” and “no disc herniation,” even at L4-5,
which demonstrated a “mild bulging annulus with facet arthropathy.” (Tr. 215). Dr. Reina also
found “[m]ild degenerative disc narrowing at L5-S1” from Plaintiff’s July 17, 2008 X-ray. (Tr.
221). No compression was noted. Dr. Charles Greeson found “[n]o interspace narrowing,
fractures, subluxations, destructive lesions, or other significant abnormality” during his
examination of Plaintiff’s lumbar spine. (Tr. 316). Evidence of stenosis, remarkable or not, does
not serve to satisfy the necessary criteria of the Listing.
While Plaintiff correctly notes a finding of bilateral bony neural foraminal narrowing, she
fails to indicate that those findings were “mild.” Specifically, Dr. David Hoff determined that
Plaintiff had “[b]ilateral bony neural foraminal narrowings without evidence of definitive L4
nerve root impingement” at L3-4 and only “[m]ild bilateral bony foraminal narrowing” at L5-S1.
(Tr. 324). Also inconsistent with Plaintiff’s allegations were Dr. Dennis’ reports indicating that
Plaintiff “denies . . . weakness,” has a motor strength of 5/5, “normal” gait, and “intact”
sensation. (Tr. 319-20). While Dr. Dennis notes during a different exam that Plaintiff has
“diminished sensation in the right lateral femoral cutaneous nerve distribution,” this does not
suggest a “motor loss . . . accompanied by sensory or reflex loss,” as described by the Listing.
Moreover, Dr. Dennis does not indicate the level of diminishment, nor does he indicate a total
loss of sensation. (Tr. 330). Dr. Dennis also described Plaintiff’s “MRI of the hip” as
“unremarkable.” (Tr. 319).
Likewise, Dr. Michael Romaguera’s April 21, 2010 notes indicate that Plaintiff had
“[a]ge-appropriate neurological function” — “ambulates without difficulty; symmetric deep
tendon reflex (DTR); 2+ (normal); motor strength in all extremities; 5/5.” (Tr. 313). Dr. Rodney
Tregle consistently noted that she “moves all extremities without difficulty and are equally

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bilateral.” (Tr. 244). On April 2, 2008, Plaintiff’s medical records state: “Bilateral legs; full
range of motion (FROM); range of motion (ROM) normal.” (Tr. 247).
After reviewing the entire record, Plaintiff meets some, but not all of the requirements of
Listing 1.04A. Therefore, the ALJ’s determination that Plaintiff does not meet Listing 1.04A is
supported by substantial evidence. Plaintiff’s appeal is denied as it relates to this issue.
VI.

CONCLUSION
Accordingly, for the reasons assigned, the decision of the Commissioner denying

Plaintiff’s application for disability insurance benefits is AFFIRMED, and the Complaint (R.
Doc. 1) of Plaintiff, Linda S. Keller, is DISMISSED with prejudice.
Signed in Baton Rouge, Louisiana, on September 25, 2013.

S

RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE

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