Graham v. Commissioner of Social Security

Filing 16

RULING ON SOCIAL SECURITY APPEAL: Under sentence four of 42 U.S.C. § 405(g), the final decision of Carolyn W. Colvin, Acting Commissioner of Social Security, denying the application for disability and supplemental security income benefits filed by plaintiff Dianna Marie Graham is affirmed. Signed by Magistrate Judge Stephen C. Riedlinger on 3/23/2015. (SMG)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

DIANNA MARIE GRAHAM
CIVIL ACTION
VERSUS
NUMBER 13-294-SCR
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY
RULING ON SOCIAL SECURITY APPEAL
Plaintiff Dianna Marie Graham brought this action pursuant to
42 U.S.C. § 405(g) for judicial review of the final decision of
Carolyn W. Colvin, the Acting Commissioner of Social Security
(“Commissioner”), denying her claim for disability and supplemental
security income (“SSI”) benefits.
Based on the standard of judicial review under § 405(g), a
careful review of the entire administrative record as a whole, and
the analysis that follows, the Commissioner’s decision is affirmed.
Standard of Review
Under § 405(g), judicial review of a final decision of the
Commissioner denying disability and SSI benefits is limited to two
inquiries: (1) whether substantial evidence exists in the record as
a whole to support the Commissioner’s findings, and (2) whether the
Commissioner’s final decision applies the proper legal standards.
Myers v. Apfel, 238 F.3d 617, 619 (5th Cir. 2001); Perez v.
Barnhart, 415 F.3d 457, 461 (5th Cir. 2005).

If substantial

evidence supports the Commissioner’s findings, they are conclusive
and must be affirmed.

Richardson v. Perales, 402 U.S. 389, 91

S.Ct. 1420, 1422 (1971); Martinez v. Chater, 64 F.3d 172, 173 (5th
Cir. 1995).

Substantial evidence is that which is relevant and

sufficient for a reasonable mind to accept as adequate to support
a conclusion.

It is more than a mere scintilla and less than a

preponderance.

Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir.

1994); Carey v. Apfel, 230 F.3d 131, 135 (5th Cir. 2000).

A

finding of no substantial evidence is appropriate only if no
credible
decision.

evidentiary

choices

or

medical

findings

support

Boyd v. Apfel, 239 F.3d 698, 704 (5th Cir. 2001).

the
In

applying the substantial evidence standard the court must review
the entire record as whole, but may not reweigh the evidence, try
the issues de novo, or substitute its judgment for that of the
Commissioner,

even

if

Commissioner’s decision.

the

evidence

weighs

against

the

Newton v. Apfel, 209 F.3d 448, 452 (5th

Cir. 2000). Conflicts in the evidence are for the Commissioner and
not the court to resolve.

Masterson v. Barnhart, 309 F.3d 267, 272

(5th Cir. 2002).
If

the

Commissioner

fails

to

apply

the

correct

legal

standards, or 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. 1981); Western v. Harris, 633 F.2d 1204, 1206 (5th Cir. 1981);

2

Wiggins v. Schweiker, 679 F.2d 1387, 1389 (11th Cir. 1982).
A claimant has the burden of proving that he or she suffers
from a disability, which is defined as a medically determinable
physical or mental impairment lasting at least 12 months that
prevents

the

claimant

from

engaging

in

substantial

gainful

activity. 20 C.F.R. §§ 404.1505; 416.905. The regulations require
the ALJ to apply a five step sequential evaluation to each claim
for benefits.

20 C.F.R. §§ 404.1520; 416.920.

In the five step

sequence used to evaluate claims the Commissioner must determine
whether: (1) the claimant is currently engaged in substantial
gainful activity; (2) the claimant has a severe impairment(s); (3)
the

impairment(s)

meets

or

equals

the

severity

of

a

listed

impairment in Appendix 1 of the regulations; (4) the impairment(s)
prevents the claimant from performing past relevant work; and, (5)
the impairment(s) prevents the claimant from doing any other work.
Masterson, 309 F.3d at 271.
Listed impairments are descriptions of various physical and
mental illnesses and abnormalities generally characterized by the
body system they affect.
several
results.

specific

medical

Each impairment is defined in terms of
signs,

symptoms,

or

laboratory

test

If the impairment meets or equals one of the listed

impairments, the claimant is conclusively presumed to be disabled.
For a claimant to show that his impairment matches a listed
impairment he must demonstrate that it meets all of the medical

3

criteria specified in the listing.

An impairment that exhibits

only some of the criteria, no matter how severely, does not
qualify.

Sullivan v. Zebley, 493 U.S. 521, 529-32, 110 S.Ct. 885,

891-92 (1990); 20 C.F.R. §§ 404.1525; 416.925. The criteria in the
medical listings are demanding and stringent. Falco v. Shalala, 27
F.3d 160, 162 (5th Cir. 1994).
The burden of proving disability rests on the claimant through
the first four steps. At the fourth step the Commissioner analyzes
whether the claimant can do any of his past relevant work.

If the

claimant shows at step four that he is no longer capable of
performing

past

relevant

work,

the

burden

shifts

to

the

Commissioner to show that the claimant is able to engage in some
type of alternative work that exists in the national economy.
Myers, supra.

If the Commissioner meets this burden the claimant

must then show that he cannot in fact perform that work.

Boyd, 239

F.3d at 705.
Background and Claims of Error
Plaintiff was 40 years old at the time of the administrative
law judge’s (“ALJ”) decision.1

Plaintiff attended school through

the eighth grade and her past relevant work consisted of employment
as a cashier, stocker, construction and paper mill worker, hotel
1

Plaintiff’s age placed her in the category of a “younger
person.” 20 C.F.R. § 404.1563(c); § 416.963(c). Under the
regulations the plaintiff’s educational level is limited.
20
C.F.R. § 404.1565(b)(3); § 416.965(b)(3).
4

housekeeper,

and

food

server.

AR

pp.

33-36,

151,

165-71.

Plaintiff stated in her application that she became disabled and no
longer able to work beginning August 10, 2010 due to HIV/Aids and
emphysema.

AR pp. 120-150.

After her applications were denied at the initial stages the
plaintiff requested an ALJ hearing. The hearing was held and after
it the ALJ issued an unfavorable decision.

AR pp. 14-56.

The ALJ

found at the second step that the plaintiff had the following
severe impairments - chronic obstructive pulmonary disease (COPD)
and human immunodeficiency virus (HIV) induced headaches.
19.

AR p.

At the third step the ALJ concluded that the plaintiff’s

combination of severe impairments did not meet or medically equal
the severity of any listed impairment.

The ALJ stated that the

evidence failed to document the medical findings necessary to
satisfy

the

requirements

of

Listing

3.02

insufficiency) or Listing 3.03 (Asthma).

(Chronic

pulmonary

The ALJ then evaluated

the plaintiff’s residual functional capacity (“RFC”) to determine
whether, despite her severe impairments, the plaintiff was able to
do any of her past relevant work or other work in the national
economy.2

The ALJ found the plaintiff had the RFC to perform

2

Residual functional capacity is a measure of a claimant’s
capacity to do physical and mental work activities on a regular and
sustained basis. It is the foundation of the findings at steps
four and five. 20 C.F.R. § 404.1545; § 416.945.
5

sedentary work as defined in the regulations,3 except that the
plaintiff could not climb ladders, ropes, or scaffolds, but could
occasionally climb ramps and stairs, balance, stoop, kneel, crouch,
and crawl.

Plaintiff also had to avoid unprotected heights and

dangerous moving machinery and avoid concentrated exposure to
gases, fumes, and other pulmonary irritants.

AR pp. 21, 54.

Given this RFC and based on the testimony of the vocational
expert, the ALJ concluded that the plaintiff would not be able to
perform any of her past relevant work.4

However, based on the

plaintiff’s age, education, work experience and RFC, the ALJ again
relied on the expert’s testimony and found that the plaintiff would
be able to make a successful adjustment to other work that existed
in significant numbers in the national economy, namely, work as an
order caller, callout operator or surveillance system monitor.
Therefore, the ALJ concluded at the fifth step that the plaintiff
is not disabled.

AR pp. 24-25, 53-55.

3

The regulations define a sedentary exertional level of work
as follows:
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); § 416.967(a).
4

The expert testified that all of the plaintiff’s past work
was classified as light, medium or heavy. AR p. 52.
6

In

her

appeal

memorandum

the

plaintiff

argued

that

the

following errors require reversal and remand under sentence four of
§ 405(g): (1) the ALJ erred by failing to consider whether the
plaintiff met the requirements of Listing 14.08k; (2) the ALJ erred
by

failing

to

find

the

plaintiff’s

headaches

and

peripheral

neuropathy are severe impairments; (3) the ALJ erred by ignoring
the

vocational

expert’s

response

to

an

expanded

hypothetical

incorporating a limitation resulting from the side effects of HIV
treatment - headaches, nausea, vomiting and peripheral neuropathy;
and, (4) the ALJ erred by failing to make a specific finding that
the

plaintiff

can

sustain

work

activities

on

a

regular

and

continuous basis.
Analysis
Step Two Claim of Error: Plaintiff failed to establish the ALJ
erred in determining the severity of her impairments at the
second step.
Plaintiff argued that it was error for the ALJ not to find
that her headaches and peripheral neuropathy were severe at step
two.

Plaintiff also argued that the ALJ’s decision does not

demonstrate that she applied the severity standard the Fifth
Circuit requires under Stone v. Heckler.5
Review of the record and the ALJ’s decision shows that this
claim of error is unsupported.

5

Essentially for the reasons

752 F.2d 1099 (5th Cir. 1985).
7

explained by the Commissioner,6 the record demonstrates the ALJ
applied the correct legal standard at step two and that substantial
evidence supports the ALJ’s severity determination.

Under Stone,

an impairment can be considered as not severe only if it is a
slight abnormality having such minimal effect on the individual
that it would not be expected to interfere with the individual's
ability to work, irrespective of age, education or work experience.
Stone, 752 F.2d at 1101 (quoting Estran v. Heckler, 745 F.2d 340,
341 (5th Cir.1984) and citing Martin v. Heckler, 748 F.2d 1027,
1032 (5th Cir.1984); Davis v. Heckler, 748 F.2d 293, 296 (5th
Cir.1984)).
Review of the ALJ’s decision shows that she cited Stone and
applied the correct standard for determining whether an impairment
is severe.
record

AR p. 19.

shows

that

Contrary to the plaintiff’s argument, the

the

ALJ

found

headaches was a severe impairment.

the

plaintiff’s

AR p. 19.

HIV-caused

The ALJ’s later

statement that the evidence did not show the headaches were
debilitating in nature, did not contradict this severity finding.
Review of the decision shows that the ALJ made this statement in
the context of assessing the extent of limitations resulting from
the severe headaches in order to determine the plaintiff’s residual
functional capacity.

6

AR pp. 21-23.

Record
document
Memorandum, pp. 9-10.

number
8

Thus, at step two there is no

14,

Defendant’s

Opposition

error with regard to the plaintiff’s headaches. Insofar as the ALJ
did not find that the plaintiff’s alleged peripheral neuropathy was
a severe impairment, that finding was also supported by substantial
evidence.

As explained by the Commissioner, although the record

contained evidence of the plaintiff’s subjective complaints of
numbness and weakness, the objective evidence in the record did not
support these complaints or that the plaintiff had peripheral
neuropathy.7
Step Three Claim of Error: Plaintiff failed to establish the
ALJ committed reversible error at the third step of the
disability analysis.
Plaintiff argued that there is sufficient evidence to find
that she met the requirements of Listing 14.08K.
ALJ’s

decision

does

not

indicate

that

the

ALJ

Review of the
specifically

considered whether the plaintiff’s HIV infection satisfied Listing
14.08K.

AR p. 21.

However, the plaintiff failed to establish a

basis to reverse the ALJ’s decision on this ground, and substantial
evidence supports the ALJ’s finding that the plaintiff did not meet
the criteria of any listed impairment at the third step.8
At the third step, an impairment cannot meet the criteria of
a listing based only on a diagnosis.

7

For a claimant to show that

Id. at 9.

8

The ALJ concluded the plaintiff did not satisfy the
requirements of Listings 3.02 or 3.03. AR p. 21. Plaintiff did
not dispute this finding.
9

her impairment matches a listed impairment she must demonstrate
that it meets all of the medical criteria specified in the listing.
An impairment that exhibits only some of the criteria, no matter
how severely, does not qualify.

Sullivan v. Zebley, supra; 20

C.F.R. §§ 404.1525(d); 416.925(d).
Listing 14.08K covers HIV infection. The listing requirements
are as follows:
K. Repeated (as defined in 14.00I3) manifestations of HIV
infection, including those listed in 14.08A–J, but
without the requisite findings for those listings (for
example, carcinoma of the cervix not meeting the criteria
in 14.08E, diarrhea not meeting the criteria in 14.08I),
or other manifestations (for example, oral hairy
leukoplakia,
myositis,
pancreatitis,
hepatitis,
peripheral neuropathy, glucose intolerance, muscle
weakness, cognitive or other mental limitation) resulting
in significant, documented symptoms or signs (for
example, severe fatigue, fever, malaise, involuntary
weight loss, pain, night sweats, nausea, vomiting,
headaches, or insomnia) and one of the following at the
marked level:
1.
2.
3.
to

Limitation of activities of daily living.
Limitation in maintaining social functioning.
Limitation in completing tasks in a timely manner due
deficiencies in concentration, persistence, or pace.

Thus, Listing 14.08K requires not only the existence of HIV,
but repeated manifestations of HIV infection such as those set
forth in Listings 14.08A through 14.08J, that occur with the
frequency and duration required by 14.00I3.9

9

Plaintiff cited

Under 14.00I3, “repeated” is defined as follows:
[T]he manifestations occur on an average of three times
a year, or once every 4 months, each lasting 2 weeks or
more; or the manifestations do not last for 2 weeks but
(continued...)
10

numerous pages of the record which she contends establish her
disability under this listing.10

However, as pointed out by the

Commissioner, the evidence the plaintiff cited consists primarily
of her subjective complaints, and fails to establish all of the
required, medically documented findings.11

Because the plaintiff

failed to show that the record includes the evidence demonstrating
she can meet her burden at the third step with regard to Listing
14.08K, the ALJ’s failure to specifically address this listed
impairment did not affect the plaintiff’s substantial rights, and
is a harmless error.12 The ALJ’s finding at the third step that the

9

(...continued)
occur substantially more frequently than three times a
year or once every 4 months; or they occur less
frequently than an average of three times a year or once
every 4 months but last substantially longer than 2
weeks. Your impairment will satisfy this criterion
regardless of whether you have the same kind of
manifestation repeatedly, all different manifestations,
or any other combination of manifestations; for example,
two of the same kind of manifestation and a different
one. You must have the required number of manifestations
with the frequency and duration required in this section.
Also, the manifestations must occur within the period
covered by your claim.
10

Record document number 10, Memorandum in Support of
Plaintiff’s Appeal of the Commissioner’s Denial of Social Security
Disability Benefits, pp. 5-8.
11

These are (1) that they occur with the frequency and
duration required by the regulations; and, (2) that they result in
marked limitations in daily activities, social functioning, or
completing tasks in a timely manner. Record document number 14,
Defendant’s Opposition Memorandum, p. 6.
12

See, Audler, 501 F.3d at 449; Garcia v. Astrue, 2012 WL
(continued...)
11

plaintiff is not disabled under any of the medical listings is
supported by substantial evidence.13
Step Five Claim of Error: Plaintiff failed to establish error
at step five, and the ALJ’s finding the plaintiff could do
other work is supported by substantial evidence.
Plaintiff argued the ALJ should have adopted the vocational
expert’s response to the hypothetical question, which included a
limitation accounting for the need to take additional rest periods
and breaks beyond those allowed in a customary work day.

The

expert’s answer to this question was that such an individual would
not have the ability to engage in the three jobs he identified order caller, callout operator, or surveillance system monitor. AR
pp. 54-56.

According to the plaintiff, this evidence shows that

12

(...continued)
13716 (S.D.Tex. Jan. 3, 2012); Smith v. Astrue, 2012 WL 3779146
(E.D.La. Aug. 13, 2012)(where record did not demonstrate plaintiff
could meet burden of demonstrating that listing requirements were
satisfied, ALJ’s failure to analyze a listing at step three is
harmless error).
The primary policy underlying the harmless error rule is to
preserve judgments and avoid waste of time. Mays v. Bowen, 837
F.2d 1362, 1364 (5th Cir.1988). Thus, procedural perfection in
administrative proceedings is not required. A judgment will not be
vacated unless the substantial rights of a party have been
affected. Procedural improprieties constitute a basis for remand
only if they would cast into doubt the existence of substantial
evidence to support the ALJ’s decision. Id.; Morris v. Bowen, 864
F.2d 333, 335 (5th Cir.1988).
13

See, Selders v. Sullivan, 914 F.2d 614, 619-20 (5th Cir.

1990).
12

the ALJ should have found her disabled at the fifth step.14
Plaintiff’s argument is unsupported, and thus unpersuasive.
Plaintiff’s argument is essentially that the ALJ should have relied
on the evidence that she claims supports a finding that she is
disabled.

This argument is not grounds for reversing the ALJ’s

decision.

There is no error when an ALJ fails to accept and rely

on a vocational expert’s answer to a hypothetical question which
contains limitations that are not supported by the objective
evidence of record and, accordingly, the ALJ does not recognize.15
Rather, if the ALJ asks the vocational expert a hypothetical
question that includes the claimant’s relevant age, education and
work experience, and which reasonably incorporates the limitations
supported by substantial evidence and recognized by the ALJ, the
expert’s response to the question provides substantial evidence to
support the finding that the claimant can do other work.16

14

Given the plaintiff’s nonexertional limitations, the ALJ
properly obtained vocational expert testimony to support the
finding at the fifth step.
It is well established that if a
claimant has nonexertional limitations, the ALJ is required to
obtain vocational expert testimony to support her findings at step
five. Bowling v. Shalala, 36 F.3d 431, 435 (5th Cir.1994); Carey v.
Apfel, 230 F.3d 131, 145 (5th Cir. 2000); Fields v. Bowen, 805 F.2d
1168, 1170 (5th Cir.1986); Vaughn v. Shalala, 58 F.3d 129, 132 (5th
Cir.1995).
15

See, Gardner v. Massanari, 264 F.3d 1140 (5th Cir. 2001)(per
curiam); Snell v. Chater, 68 F.3d 466 (5th Cir. 1995)(per curiam).
16

The hypothetical question presented to the expert must
incorporate reasonably all the impairments and limitations of the
claimant recognized by the ALJ, and the claimant or his
(continued...)
13

The record shows that the limitations in the ALJ’s RFC finding
are supported by substantial evidence.17
expert’s

answer,

identifying

jobs

Therefore, the vocational

the

claimant

can

do,

is

substantial evidence on which the ALJ relied to support the finding
that the plaintiff is able to do other work that exists in
significant numbers in the national economy.18
Plaintiff also argued that the ALJ was required to make a
determination that she could perform sustained work activities.

16

(...continued)
representative must be given the opportunity to correct
deficiencies in the ALJ’s question by mentioning or suggesting any
purported defects in the question. The impairments and limitations
of the claimant recognized by the ALJ and included in the
hypothetical must be supported by the evidence. Bowling, 36 F.3d
at 436; Boyd, 239 F.3d at 707; Carey, 230 F.3d at 145; Masterson,
309 F.3d at 273. The record reflects that the plaintiff’s attorney
was given a full opportunity to question the expert at the
administrative hearing. AR pp. 55-56.
17

See, e.g., AR pp. 65-68, 254-64 (reports of state agency
consultant and consultative examination), 41, 43, 46-48, 157-61
(daily activities); 225-26 (x-rays); 219, 230, 233, 235, 237, 239,
268-69, 217 (clinic notes and records showing the plaintiff is
capable of normal activities with effort).
18

Work exists in the national economy when it exists in
significant numbers either in the region where the claimant lives
or in several other regions of the country; when there is a
significant number of jobs, in one or more occupations, having
requirements which the claimant is able to meet with his physical
or mental abilities and qualifications. It does not matter whether
work exists in the immediate area in which the claimant lives, a
specific job vacancy exists for the claimant, or the claimant would
be hired if he applied for work. However, isolated jobs that exist
only in very limited numbers in relatively few locations outside of
the region where the claimant lives are not considered work which
exists in the national economy.
20 C.F.R. § 404.1566(a); §
416.966(a).
14

Therefore, the ALJ erred by failing to appropriately consider
whether she could sustain work activity due to the recurrent and
intermittent nature of her impairments, symptoms and treatment.
This argument is not supported by the record.

An ability to

maintain employment is inherent in the definition of residual
functional capacity.

Unless the record reflects that a claimant’s

condition is sporadic and intermittent such that it would prevent
the claimant from sustaining or maintaining employment, the ALJ is
not required to make a specific finding with regard to the ability
to maintain employment.

See, Frank v. Barnhart, 326 F.3d 618, 621

(5th Cir. 2003); Perez v. Barnhart, 415 F.3d 457, 465 (5th Cir.
2005).

Despite the plaintiff’s assertions, the medical and other

objective evidence of record does not support the claim that the
affects of her impairments and treatment are such that it was
necessary for the ALJ to make a specific finding on her ability to
maintain employment.19
Conclusion
Plaintiff’s claims of error are without merit.

The record

considered as a whole supports the conclusion that the proper legal
standards were applied and that substantial evidence supports the
determination that the plaintiff is not disabled.
Accordingly, under sentence four of 42 U.S.C. § 405(g), the

19

See, portions of record cited in footnote 17.
15

final decision of Carolyn W. Colvin, Acting Commissioner of Social
Security, denying the application for disability and supplemental
security income benefits filed by plaintiff Dianna Marie Graham is
affirmed.
A separate judgment will be issued.
Baton Rouge, Louisiana, March 23, 2015.

STEPHEN C. RIEDLINGER
UNITED STATES MAGISTRATE JUDGE

16