Doddy v. Astrue

Filing 24

MEMORANDUM OPINION AND ORDER; ORDERED that the decision of the Commissioner is hereby AFFIRMED and this social security action is DISMISSED WITH PREJUDICE. Signed by Magistrate Judge Roy S. Payne on 3/27/14. (mrm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
STEFFENIE KAY DODDY

§

v.

§

COMMISSIONER, SOCIAL SECURITY
ADMINISTRATION

§

CIVIL ACTION NO. 2:12CV384

MEMORANDUM OPINION AND ORDER
On June 25, 2012, Plaintiff initiated this civil action pursuant to the Social Security Act (The
Act), Section 205(g) for judicial review of the Commissioner’s denial of Plaintiff’s application for
Social Security benefits. Pursuant to 28 U.S.C. § 636(c), the case was assigned to the undersigned for
disposition.
I.

HISTORY
Born in 1965, Plaintiff was 41 years old at the time of her disability onset date and was 44 years

old on the date of the ALJ’s decision. See Transcript (“Tr.”) at 21 (Administrative Law Judge (“ALJ”)
decision). Plaintiff completed the 11th grade of high school in a Special Education program, and can
communicate in English. See Tr. at 21, 35. Plaintiff did not complete high school. See id.
On November 20, 2008, Plaintiff protectively filed applications for disability insurance
benefits and supplemental security income under Titles II and XVI of the Social Security Act. See Tr.
at 12. In her application, she alleged disability beginning March 1, 2007. Id. Records show that
Plaintiff suffers from back problems and anxiety. See Tr. at 14. Also, Plaintiff is obese, and has a low
I.Q. See id.
Plaintiff’s claim was denied initially on March 5, 2009. See Tr. At 12. The claim was denied
on reconsideration on June 15, 2009. Id. Plaintiff sought review of the denial. An administrative
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hearing was conducted before the ALJ on February 22, 2010. See Tr. at 12; 28-47 (transcript of
administrative hearing). Plaintiff appeared and testified, represented by counsel. Id. A vocational
expert, Tammie Donaldson, testified during the hearing. Id.
The ALJ issued an unfavorable decision on August 9, 2010, finding that, through the
date of the ALJ's decision, the Plaintiff was not disabled. See Tr. at 21.Therefore, the ALJ
found that Plaintiff was not disabled within the meaning of the Social Security Act. See Tr. at 21.
At the request of Plaintiff, the Appeals Council (AC) reviewed the ALJ’s decision in
conjunction with the entire record. On April 24, 2012, the AC denied Plaintiff’s request for review.
See Tr. at. 1. Therefore, the AC’s decision became the Commissioner’s final decision. See Sims v.
Apfel, 530 U.S. 103, 106-07 (2000). Plaintiff now seeks judicial review of the decision pursuant to 42
U.S.C. § 405(g).
II.

STANDARD
Title II of the Act provides for disability insurance for workers who are disabled. Title XVI of

the Act provides for supplemental security income for the disabled. The relevant law and regulations
governing the determination of disability under a claim for disability insurance benefits are identical
to those governing the determination under a claim for supplemental security income. See Davis v.
Heckler, 759 F.2d 432, 435, n.1 (5th Cir. 1985); Rivers v. Schweiker, 684 F.2d 1144, 1146, n. 2 (5th
Cir. 1982); Strickland v. Harris, 615 F.2d 1103, 11055th (5th Cir. 1980).
Judicial review of the denial of disability benefits under section 205(g) of the Act, 42, U.S.C.
§ 405(g), is limited to “determining whether the decision is supported by substantial evidence in the
record and whether the proper legal standards were used in evaluating the evidence.” Bowling v.
Shalala, 36 F.3d 431, 435 (5th Cir. 1994); Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990); Muse
v. Sullivan, 925 F.2d 785, 789 (5th Cir. 1991) (per curiam). A finding of no substantial evidence is
appropriate only where there is a conspicuous absence of credible choices or no contrary medical
2

evidence. Johnson v. Bowen, 864 F.2d 340, 343-44 (5th Cir. 1988); Hames v. Heckler, 707 F.2d 162,
164 (5th Cir. 1983). Accordingly, the Court “may not reweigh the evidence in the record, nor try the
issues de novo, nor substitute [the Court’s] judgment for the [Commissioner]’s, even if the evidence
preponderates against the [Commissioner]’s decision.” Bowling, 36 F.3d at 435; Harrell v. Bowen,
862 F.2d 471, 475 (5th Cir. 1988); see Spellman v. Shalala, 1 F.3d 357, 360 (5th Cir. 1993); Anthony
v. Sullivan, 954 F.2d 289, 295 (5th Cir. 1992); Cook v. Heckler, 750 F.2d 391, 392 (5th Cir. 1985).
Rather, conflicts in the evidence are for the Commissioner to decide. Spellman, 1 F.3d 357, 360 (5th
Cir. 1993); Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir. 1990); Anthony, 954 F.2d 289, 295 (5th Cir.
1992); Patton v. Schweiker, 697 F.2d 590, 592 (5th Cir. 1983). A decision on the ultimate issue of
whether a claimant is disabled, as defined in the Act, rests with the Commissioner. Newton v. Apfel,
209 F.3d 448, 455-56 (5th Cir. 2000); Social Security Ruling (“SSR”) 96-5p.
“Substantial evidence is more than a scintilla but less than a preponderance – that is, enough
that a reasonable mind would judge it sufficient to support the decision.” Pena v. Astrue, 271
Fed.Appx. 382, 383 (5th Cir.2003); Falco v. Shalala, 27 F.3d 160, 162 (5th Cir.1994). Substantial
evidence includes four factors: (1) objective medical facts or clinical findings; (2) diagnoses of
examining physicians; (3) subjective evidence of pain and disability; and (4) the plaintiff’s age,
education, and work history. Fraga v. Bowen, 810 F.2d 1296, 1302 n.4 (5th Cir. 1987). If supported
by substantial evidence, the decision of the Commissioner is conclusive and must be affirmed.
Richardson v. Perales, 402 U.S. 389, 390, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971). The Court must
do more than “rubber stamp” the ALJ’s decision; the Court must “scrutinize the record and take into
account whatever fairly detracts from the substantiality of evidence supporting the [Commissioner]’s
findings.” Cook, 750 F.2d 391, 393 (5th Cir. 1985). The Court may remand for additional evidence if
substantial evidence is lacking or “upon a showing that there is new evidence which is material and that

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there is good cause for the failure to incorporate such evidence into the record in a prior proceeding.”
42. U.S.C. § 405(g) (2000); Latham v. Shalala, 36 F.3d 482, 483 (5th Cir. 1994).
A claimant for disability has the burden of proving a disability. Wren v. Sullivan, 925 F.2d 123,
125 (5th Cir. 1991). The Act defines “disability” as an “inability to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment which can be expected
to result in death or which can be expected to last for a continuous period of not less than 12 months.”
42 U.S.C. § 416(i)(1)(A); 42 U.S.C. § 423(d)(1)(A). A “physical or mental impairment” is an
anatomical, physiological, or psychological abnormality which is demonstrable by acceptable clinical
and laboratory diagnostic techniques. 42 U.S.C. § 423(d)(2)(A); 42 U.S.C. § 1382c(a)(3)(B).
In order to determine whether a claimant is disabled, the Commissioner must utilize a five-step,
sequential process. Villa, 895 F.2d at 1022. A finding of “disabled” or “not disabled” at any step of the
sequential process ends the inquiry. Id.; see Bowling, 36 F.3d at 435 (citing Harrel, 862 F.2d at 475).
Under the five-step sequential analysis, the Commissioner must determine at Step One whether the
claimant is currently engaged in substantial gainful activity. At Step Two, the Commissioner must
determine whether one or more of the claimant’s impairments are severe. At Step Three, the
Commissioner must determine whether the claimant has an impairment or combination of impairments
that meet or equal one of the listings in Appendix I.
Prior to moving to Step Four, the Commissioner must determine the claimant’s Residual
Functional Capacity (“RFC”), or the most that the claimant can do given his impairments, both severe
and non-severe. Then, at Step Four, the Commissioner must determine whether the claimant is capable
of performing his past relevant work. Finally, at Step Five, the Commissioner must determine whether
the claimant can perform other work available in the local or national economy. 20 C.F.R. §§
404.1520(b)-(f), 416.920(b)-(f).

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An affirmative answer at Step One or a negative answer at Steps Two, Four, or Five results in
a finding of “not disabled.” See Villa, 895 F.2d at 1022. An affirmative answer at Step Three, or an
affirmative answer at Steps Four and Five, creates a presumption of disability. Id. To obtain Title II
disability benefits, Plaintiff must show that he was disabled on or before the last day of his insured
status. Ware v. Schweiker, 651 F.2d 408, 411 (5th Cir.1981), cert. denied, 455 U.S. 912, 102 S. Ct.
1263, 71 L. Ed. 2d 452 (1982). The burden of proof is on the claimant for the first four steps, but shifts
to the Commissioner at Step Five if the claimant shows that he cannot perform his past relevant work.
Anderson v. Sullivan, 887 F.2d 630, 632-33 (5th Cir. 1989) (per curiam). In this case, Plaintiff did show
that she cannot perform her past work.
Section 12.05 of the Social Security Administration’s Listings of Impairments dictates the
requirements for finding a claimant disabled as a result of mental retardation. 20 CFR Pt. 404, Subpt.
P, App. 1, Listing 12.05. According to the introductory paragraph of Section 12.05 of the Listings,
“mental retardation refers to significantly subaverage general intellectual functioning with deficits in
adaptive functioning initially manifested during the developmental period; i.e., the evidence
demonstrates or supports onset of the impairment before age 22.” Id. In order to be found disabled
under Listing 12.05, a claimant must meet the diagnostic criteria of the introductory paragraph and the
severity requirements of any of the subsequent four subsections. Subsection B dictates a finding of
disability when a claimant has a valid verbal, performance, or full scale IQ of 59 or less. Id.
Under Randall v. Astrue, 570 F.3d 651, 659-61 (5th Cir. 2009), a claimant must show under
Section 12.05 of the Listings that he has (1) significant subaverage intellectual functioning, (2) deficits
in adaptive behavior, (3) which began before age 22.
III.

ADMINISTRATIVE LAW JUDGE’S FINDINGS
The ALJ made the following findings in the August 9, 2010, decision:
The claimant meets the insured status requirements of the Social Security Act through
December 31, 2013.
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The claimant has not engaged in substantial gainful activity since March 1, 2007, the alleged
onset date (20 C.F.R. § 404.1571 et seq., and 416.971 et seq.).
The claimant has the following severe impairments: back problems and anxiety (20 C.F.R. §
404. 1520 and 416.920(c).
The claimant does not have an impairment or combination of impairments that meets or
medically equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1
(20 C.F.R. §§ 404.1520(d), 404.1526, 416.920(d), 416.925 and 416.926).
The claimant has the residual functional capacity to perform light work as defined in 20 CFR
404.1567(b) and 416.967(b). The claimant can occasionally stoop, crouch, crawl, kneel,
balance, and climb stairs, however, she can never climb ladders. Due to psychological based
factors, the claimant has some limitations, but can understand, remember, and carry out simple
instructions; make simple decisions; sustain concentration and persistence for extended periods
of time; interact adequately with coworkers and supervisors; and respond appropriately to
changes in a routine work setting.
The claimant is unable to perform any past relevant work (20 C.F.R. § 404.1565 and 416.965).
Considering the claimant’s age, education, work experience, and residual functional capacity,
there are jobs that exist in significant numbers in the national economy that the claimant can
perform. (20 C.F.R. § 404.1569, 404.1569(a), 416.969, and 416.969(a)).
The claimant has not been under a disability, as defined in the Social Security Act, from March
1, 2007, through the date of this decision (20 C.F.R. § 404.1520(g) and 416.920(g)).
See Tr. at 14-21.
The ALJ determined that Plaintiff was not disabled under sections 216(i), 223(d), and 1614
(a)(3)A) of the Social Security Act. See Tr. at 21-22.
IV.

DISCUSSION AND ANALYSIS
Plaintiff asserts she cannot work because she suffers from obesity and is mentally retarded, and

that the ALJ did not employ the correct legal standards in evaluating these factors. See Plaintiff’s Brief
(“Pl. Br.”) at 4-5.

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A. The ALJ’s Step Two Findings on Obesity
At Step Two of the sequential evaluation, the ALJ found that Plaintiff had back problems and
anxiety that were severe impairments according to the standard set forth in Stone. See Tr. at 10, Finding
3. Plaintiff argues the ALJ’s decision must be reversed because the ALJ found that Plaintiff’s obesity
was nonsevere; and, in doing so, cited a severity standard that is different from the standard expressed
in Stone v. Heckler, 752 F.2d 1099, 1101 (5th Cir.1985). See Pl. Br. at 4-5. Plaintiff’s case, however,
was not resolved on a Step Two finding that her impairments were not severe. Rather, the ALJ found
that Plaintiff had severe impairments, but despite those impairments, concluded that Plaintiff was not
disabled because her RFC permitted her to perform jobs that existed in significant numbers in the
economy. See Tr.at 14-22.
A claimant must establish, at Step Two of the sequential evaluation process, that she has a
medically determinable severe impairment or combination of impairments. 20 C.F.R. §§
404.1520(a)(4)(ii), 416.920(a)(4)(ii). The Step Two evaluation is designed “to weed out at an early
stage of the administrative process those individuals who cannot possibly meet the statutory definition
of disability.” Bowen v. Yuckert, 482 U.S. 137, 156 (1987) (O’Connor, J., concurring). Once a severe
impairment is determined to exist, all medically determinable impairments must be considered in the
remaining steps of the sequential analysis. 20 C.F.R. §§ 404.1523, 416.923; see also 20 C.F.R. §§
404.1545 (a)(2), 416.945(a)(2).
Under the regulations, the ALJ is required to determine whether any identified impairments are
“severe” or “not severe”. A failure to do so, however, is not a basis for remand where the ALJ
proceeds to later steps of the sequential evaluation process. Herrera v. Comm’r of Soc. Sec., 406 Fed.
Appx. 899, 903 (5th Cir. 2010); Adams v. Bowen, 833 F.2d 509, 512 (5th Cir. 1987).
In this case, the ALJ did not end his evaluation at Step Two. He expressly considered Plaintiff’s
obesity and other impairments subsequent to his Step Two evaluation. See Tr. at 15-21. Therefore, this
argument is without merit. See Herrera, 406 Fed. Appx. at 903, n. 2.
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Plaintiff further challenges the ALJ’s decision by arguing that “it is unclear whether the ALJ’s
[residual functional capacity finding] includes obesity related limitations, especially those associated
with the impact of Plaintiff’s obesity has on her severe back impairment.” See Pl. Br. at 5. The
Commissioner responds that Plaintiff has failed to demonstrate any limitations from obesity. See
Comm’r Br. at 5. Plaintiff is 59 inches tall (4 feet 11 inches) and, at the time of her consultative
examination on February 17, 2009, weighed 252 pounds. See Tr. at 236. With a Body Mass Index
(BMI) of 50.9, Plaintiff’s obesity is qualified as “extreme” and falls under Level III of the National
Institute of Health’s Clinical Guidelines, which denotes obesity resulting in a BMI of 40 or greater and
represents the greatest risk for developing obesity-related impairments. See Social Security Ruling
(SSR) 02-1p.
It must be noted that a diagnosis of obesity does not establish a severe impairment or the
existence of functional limitation. Social Security Ruling (SSR) 02-01p specifically provides that
“[o]besity in combination with another impairment may or may not increase the severity or functional
limitations of the other impairment,” and the ALJ “will not make assumptions about the severity or
functional effects of obesity . . . .” SSR 02-01p. The ruling instructs the adjudicator to evaluate each
case “based on the information in the case record.” Id. (emphasis added). Plaintiff has not attributed
any limitations to obesity. Plaintiff points to no evidence that any physician recommended restrictions
due to obesity, or that her obesity caused any limitations. The ALJ explicitly stated, “there is no
evidence in the record that any physician has given any indication that the claimant could be suffering
from any [ ] impairment related to her weight.” See Tr. at 19.
It is well established that the burden to demonstrate the existence of disabling limitations lies
with the claimant. Wilkinson v. Schweiker, 640 F.2d 743, 744 (5th Cir. 1981); see also Fields v.
Barnhart, 83 F. Appx. 993, 997 (10th Cir. 2003) (where claimant failed to cite to any specific record
evidence indicating that obesity in any way affected her ability to engage in basic work activities,

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claimant’s argument that the ALJ failed to adequately consider obesity was without merit). Because
Plaintiff fails to establish any limitations relating to obesity, Plaintiff’s argument fails.
B. Step Three: Mental Retardation
Step Three of the sequential evaluation streamlines the disability process by identifying those
claimants whose medical impairments are so severe that it is likely they would be found disabled
regardless of the claimant’s vocational background. Yuckert, 482 U.S. at 153. The ALJ found that
Plaintiff did not have an impairment or combination of impairments that met or medically equaled the
severity criteria for any of the impairments listed in 20 C.F.R. Pt. 404, Subpt. P, App. 1. See Tr. 15,
Finding 4.
Plaintiff challenges the ALJ’s Step Three finding, asserting that she has intellectual deficits that
meet all the criteria under Listing 12.05(B), Mental Retardation. Pl. Br. at 5-9. Even when an ALJ
wholly fails to set forth the basis for a decision at Step Three, reversal on that basis is inappropriate
unless the error affects the claimant’s substantial rights. Audler v. Astrue, 501 F.3d 446, 448 (5th Cir.
2007). Such error affects substantial rights only where the claimant appears to have met her burden to
demonstrate that she meets or equals a listing. Id.
Here, the ALJ’s Step Three finding does not affect the Plaintiff’s substantial rights so as to
constitute prejudicial legal error. Plaintiff fails to show that her condition satisfied the criteria of Listing
12.05. At Step Three of the evaluation process, the claimant bears the burden of proving that
an impairment or combination of impairments meet or equal the criteria of an Appendix 1 listing.
Selders, 914 F.2d at 619. The criteria in the medical listings are “demanding and stringent.” Falco, 27
F.3d at 162. To establish that an impairment meets a listing, the claimant must provide medical findings
that support all of the criteria for a listed impairment. See Selders, 914 F.2d at 619. An impairment that
manifests only some of the requisite criteria, no matter how severely, does not qualify. Sullivan v.
Zebley, 493 U.S. 521, 530 (1990). If the plaintiff fails to present proof satisfying the severity criteria,

9

the courts will find that substantial evidence supports the ALJ’s finding that listings-level impairment
was not present. Selders, 914 F.2d at 620.
The diagnostic description for Listing 12.05 defines mental retardation as, “significantly
subaverage general intellectual functioning with deficits in adaptive functioning initially manifested
during the developmental period; i.e., the evidence demonstrates or supports onset of the impairment
before age 22.” 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.05.
Under subsection B, the required level of severity is met if the claimant has a valid verbal,
performance, or full scale IQ of 59 or less. Id. To show listing-level mental retardation, a claimant must
satisfy the diagnostic description’s substantive requirements independently of the severity criteria. See
Randall v. Astrue, 570 F.3d at 655-60.
1. Plaintiff Fails to Show Significantly Subaverage Intellectual Functioning
In support of Plaintiff’s allegation of significantly subaverage general intellectual functioning,
Plaintiff relies on the opinion of Howard Patterson, M.A., L.P.C., which was approved by Suzanne
Reams, Psy.D. See Tr. 208-15; see also Pl. Br. at 6-7. Patterson’s opinion, however, fell short of
establishing significantly subaverage general intellectual functioning. Mr. Patterson noted that some
of Plaintiff’s test results “strongly suggest[] false and gross exaggeration of psychological symptoms
in pursuit of financial incentives”. See Tr. at 214-15. Thus, one of the diagnoses was “malingering”.
See Tr. at 214. In addition, Mr. Patterson/Dr. Reams refused to provide a firm diagnosis based on
intellectual functioning, but rather gave only a “provisional” diagnosis of mild mental retardation. See
Tr. at 215. This evidence does not establish significantly subaverage general intellectual functioning.
2. Plaintiff Fails to Show Deficits in Adaptive Functioning.
“Adaptive functioning,” has been described as a person’s “effectiveness in areas such as social
skills, communication, and daily living skills, and how well the person meets the standards of personal
independence and social responsibility expected of his or her age by his or her cultural group.” Heller
v. Doe, 509 U.S. 312, 329 (1993). The Agency’s definition of mental retardation is used not for
10

diagnostic purposes, but rather for purposes of program eligibility, i.e., “to identify individuals with
cognitive limitations who experience significant problems in their ability to perform work and who may
therefore be in need of governmental support.” See National Research Council report, Mental
Retardation: Determining Eligibility for Social Security Benefits (2002) 3-4 (cited 68 Fed Reg. at
12639, 12640 (2003)). It therefore follows that a claimant’s work history is “particularly useful in
determining [his or her] ability or inability to function in a work setting.” 20 C.F.R. Pt. 404, Subpt. P,
App. 1, 12.00(D)(3).
Plaintiff’s work history belies her claim of deficits in adaptive functioning. Plaintiff worked as
home healthcare provider from 2000 through 2002, and as a certified nurse’s assistant (CNA) from
2003 through 2007. See Tr. at 32, 138. A vocational expert testified that the home-health work is
classified at SVP (specific vocational preparation) level 3, and that the CNA work is classified at SVP
level 4.1 Thus, both occupations are classified under the regulations as semiskilled. See 20 C.F.R. §§
404.1568(b), 416.968(b). The ability to adapt to the workplace for a long period has been recognized
as weighing against finding deficits in adaptive functioning and/or mental retardation. See West v.
Comm’r Social Sec., 240 Fed. Appx. 692, 698 (6th Cir. 2007); Humphries v. Barnhart, 183 Fed. Appx.
887, 889 (11th Cir. 2006); Robinson v. Astrue, 2013 U.S. Dist. LEXIS 30426 (M.D. Ga. Feb. 12, 2013);
Carter v. Comm’r of Soc. Sec., 2012 U.S. Dist. LEXIS 40828 (W.D. Mich. Mar. 26, 2012). Moreover,
the ability to perform semiskilled work is inconsistent with adaptive functioning and/or mental

1

The Social Security Administration has taken administrative notice of the DOT, which gives
detailed requirements for a variety of jobs. See 20 C.F.R. §§ 404.1566(d)(1), 416.966(d)(1).
Appendix C of the DOT defines SVP as “the amount of lapsed time required by a typical worker to
learn the techniques, acquire the information, and develop the facility needed for average
performance in a specific job-worker situation.” U.S. Dep’t of Labor, Dictionary of Occupational
Titles (4th ed. 1991). SVP levels range from 1 (short demonstration only) to 9 (over ten years). See
id. Using the skill level definitions in 20 C.F.R. §§ 404.1568 and 416.968, unskilled work
corresponds to an SVP of 1-2; semiskilled work corresponds to an SVP of 3-4; and skilled work
corresponds to an SVP of 5-9 in the DOT. SSR 00-4p. Although there may be a reason for
classifying an occupation’s skill level differently than in the DOT, the regulatory definitions of skill
levels are controlling. Id.
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retardation. See Outlaw v. Barnhart, 197 F. Appx. 825, 827 & n.1 (11th Cir. 2006); Sheeks v. Comm’r
of Soc. Sec., 2013 U.S. Dist. LEXIS 42863 (E.D. Mich. Mar. 27, 2013); Milstead v. Astrue, 2012 U.S.
Dist. LEXIS 152429 (W.D. Va. Oct. 23, 2012); Cheatum v. Astrue, 388 Fed. Appx. 574 (8th Cir. Mo.
July 30, 2010).
When asked to indicate areas affected by her impairments, Plaintiff did not place check marks
alongside areas relating to mental impairment. See Tr. at 151, 175, 176. She has stated that she drives;
can cook and clean if she chose; and requires no assistance with eating, bathing, dressing, grooming,
or personal hygiene. See Tr. at 34, 214. Courts have found these types of activities are also
inconsistent with a diagnosis of mental retardation. See Clark, v. Apfel, 141 F.3d 1253, 1256 (8th Cir.
1998); Hawkins v. Astrue, 2010 U.S. Dist. LEXIS 104904, at *7-8, 19 (D. Md. Sept. 30, 2010); Allen
v. Astrue, 2010 U.S. Dist. LEXIS 91061, at *4 (E.D. Ky. Aug. 31, 2010); Redding v. Astrue, 2010 U.S.
Dist. LEXIS 96934, at *41-41 (S.D. Oh July 27, 2010).
The key term in the introductory paragraph of section 12.05 of the regulation, so far as bears
on this case, is “deficits in adaptive functioning.” The term denotes inability to cope with the challenges
of ordinary everyday life. American Psychiatric Association, Diagnostic and Statistical Manual of
Mental Disorders, Text Revision (DSMIV–TR) 42 (4th ed.2000). A person who cannot cope with those
challenges will have difficulty holding down a full-time job. In the Plaintiff’s case, however, the record
indicates that the Plaintiff is able to cope. Plaintiff has overcome her intellectual challenges well
enough that she should be able to hold down a full-time job. Plaintiff fails to show that she has intellect
deficits that satisfy the diagnostic description’s substantive requirements under Listing 12.05, and does
not argue that she meets or equals any other listed impairment. Therefore, substantial evidence supports
the ALJ’s Step Three determination that Plaintiff did not have a presumptively disabling impairment.
See Tr. at 15 Finding 4; see Selders v. Sullivan, 914 F.2d 614, 620 (5th Cir.1990).

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C. Steps Four and Five: Residual Functional Capacity
Before proceeding to Steps Four and Five of the sequential evaluation, it was necessary for the
ALJ to assess Plaintiff’s RFC. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The ALJ found that
Plaintiff was unable to perform any past relevant work. See Tr. at 20. The ALJ then found Plaintiff had
the residual functional capacity to perform the full range of light work as defined in 20 C.F.R. §§
404.1567(b) and 416.967(b). See Tr. at 16, Finding 5. These regulations explain that light work
involves lifting no more than twenty pounds at a time with frequent lifting or carrying of objects
weighing up to ten pounds. 20 C.F.R. §§ 404.1567(b), 416.967(b).
Even though the weight lifted may be very little, a job falls within this category when it requires
a good deal of walking or standing, or when it involves sitting most of the time with some pushing and
pulling of arm or leg controls. Id. SSR 83-10 indicates that “a good deal of walking or standing” means
a total of approximately six hours of an eight-hour workday. SSR 83-10.
Plaintiff asserts that, in assessing her RFC, the ALJ did not properly evaluate the opinion of a
nonexamining State agency medical consultant (SAMC). See Pl. Br. at 9-12. Plaintiff argues that the
ALJ did not explain why he did not incorporate the physician’s opinion that Plaintiff could stand and/or
walk for a total of two hours in an eight-hour workday. See Pl. Br. at 11. Thus, Plaintiff contends that
the Commissioner’s decision must be reversed and remanded. See Pl. Br. at 12. The Commissioner
responds that any such error does not rise to the level of reversible error warranting remand. See
Comm’r Br. at 11.
Pursuant to SSR 96-6p, the findings of fact made by SAMCs regarding the nature and severity
of an individual’s impairment “must be treated as expert opinion evidence of nonexamining sources.”
Id. The ALJ is not bound by findings made by a SAMC, but he may not ignore these opinions and must
explain the weight given to the opinions in his decisions. Id. In the instant case, the ALJ stated he
“considered [the] opinion evidence in accordance with the requirements of 20 C.F.R. 404.1527 and
416.927 and SSRs 96-2p, 96-5p, 96-6p, and 06-3p”. See Tr. at16. Although the ALJ referenced SSR
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96-6p, he did not expressly implement the ruling by addressing the weight he assigned to the SAMC
opinion. This was error, but procedural perfection in administrative proceedings is not required as long
as the substantial rights of a party have not been affected. Morris v. Bowen, 864 F.2d 333, 335 (5th Cir.
1988). Remand is appropriate only if the procedural improprieties would cast doubt on the existence
of substantial evidence to support the ALJ’s decision. Id.
Because Plaintiff can perform light work, she can also perform sedentary work. 2 See 20 C.F.R.
§§ 404.1567(b), 416.967(b). SSR 83-10 explains that sedentary work generally requires an individual
to walk and/or stand no more than two hours of an eight-hour workday. SSR 83-10. At the
administrative hearing, the ALJ asked the vocational expert whether there were occupations available
for a person with Plaintiff’s vocational profile and the residual functional capacity for sedentary work.
See Tr. at 45. The vocational expert responded in the affirmative and provided an example occupation:
“final assembler,” of which there are 61,000 such jobs in the national economy and 3,400 such jobs in
the state. See Tr.at 45.
The Fifth Circuit has offered no test or “magic number” for determining when the number of
jobs available is sufficient to support a finding at Step Five that a claimant is not disabled. The
numbers referenced by the ALJ are well above numbers courts have found to be sufficiently significant
to support a Step Five finding. See Warren v. Astrue, 2011 U.S. Dist. LEXIS 87152, 8-9 n. 2 (E.D. Tex.
Aug. 5, 2011); Perez v. Barnhart, 415 F.3d 457, 460 (5th Cir. 2005) (2,500 jobs in the state and 25,000
jobs nationally are a “significant number of jobs”); Anderson v. Comm’r of Soc. Sec., 406 Fed. Appx.
32, 35 (6th Cir. 2010) (fewer than 1,000 regional jobs can be a significant number); Hall v. Bowen, 837
F.2d 272, 273, 275-76 (6th Cir.1988) (1,350 jobs is a significant number of jobs in local area and

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Sedentary work involves lifting no more than ten 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 that 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. See 20 C.F.R. §§ 404.1567(a), 416.967(a).
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national economy); Lee v. Sullivan, 988 F.2d 789, 794 (7th Cir. 1993) (1,400 regional jobs is a
significant number); Jenkins v. Bowen, 861 F.2d 1083, 1087 (8th Cir.1988) (as few as 500 jobs were
a significant number); Barker v. Sec’y of Health & Human Servs., 882 F.2d 1474, 1479 (9th Cir. 1989)
(1,266 positions are a significant number of jobs); Trimiar v. Sullivan, 966 F.2d 1326, 1330-32 (10th
Cir.1992) (850-1,000 potential jobs were a significant number of jobs).
Plaintiff cannot show prejudice because, even if the ALJ were required to fully incorporate the
SAMC’s opinion that Plaintiff could stand and/or walk no more than two hours, substantial evidence
of record still supports the ALJ’s Step Five determination that there are jobs that exist in significant
numbers that Plaintiff could perform. See Tr. at 21, Finding 10.
.V.

CONCLUSION
Substantial evidence supports the ALJ’s ultimate conclusion that Plaintiff was not disabled.

Therefore, the Commissioner’s finding of “not disabled” should be affirmed. See Morris, 864 F.2d at
335; Brock v. Chater, 84 F.3d 726, 729 (5th Cir. 1996) (“[The Court] will not reverse the decision of
an ALJ where the claimant makes no showing that he was prejudiced in any way by the deficiencies
he alleges.”).
It is accordingly
ORDERED that the decision of the Commissioner is hereby AFFIRMED and this social
security action is DISMISSED WITH PREJUDICE.
SIGNED this 3rd day of January, 2012.
SIGNED this 27th day of March, 2014.

____________________________________
ROY S. PAYNE
UNITED STATES MAGISTRATE JUDGE

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