Gill v. Commissioner of SSA
MEMORANDUM RULING. Signed by Magistrate Judge Roy S. Payne on 05/14/2015. (nkl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
ANITA KAY GILL
CAROLYN W. COLVIN,
ACTING COMMISSIONER, SOCIAL
Case No. 2:13-CV-0582-RSP
On April 1, 2013, Administrative Law Judge Gilbert Rodriguez issued a decision finding
that Petitioner Anita Kay Gill was not disabled within the meaning of the Social Security Act
before or after July 19, 2010, the date the application was filed, through the date of the decision.
Ms. Gill, who was 41 with an 8th grade education at that time, was found to be suffering from
severe impairments including afferent papillary defect with no light perception in the right eye
and hypertension. These impairments resulted in restrictions on her ability to work, and she had
not engaged in any substantial gainful activity since at least July 19, 2010. Before that time she
had worked as a fast food worker, home health aide, housekeeper/cleaner and nursing home
After reviewing the medical records and receiving the testimony at the hearing, the ALJ
determined that Petitioner had the residual functional capacity to perform the full range of light
work, as defined in the Social Security Regulations, and that “Claimant has no acute visual
ability; she cannot see things that are extra small; and she cannot perform tasks that require
bilateral vision; and has limited near acuity.” Based on the testimony of a vocational expert
witness, the ALJ determined that Petitioner could perform the requirements of her past relevant
work as a housekeeper/cleaner, and further found in the alternative that she can perform certain
other jobs that exist in substantial numbers in the national economy, such as cafeteria attendant,
poultry processor, and assembler of small products. This finding resulted in the determination
that Petitioner was not entitled to supplemental security income (SSI) benefits.
appealed this finding to the Appeals Council, which denied review on July 16, 2013. Petitioner
timely filed this action for judicial review seeking remand of the case for award of benefits.
This Court's review is limited to a determination of whether the Commissioner's final
decision is supported by substantial evidence on the record as a whole and whether the
Commissioner applied the proper legal standards in evaluating the evidence. See Martinez v.
Chater, 64 F.3d 172, 173 (5th Cir.1995); Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir.1994),
cert. denied, 514 U.S. 1120, 115 S.Ct. 1984, 131 L.Ed.2d 871 (1995). Substantial evidence is
more than a scintilla, but can be less than a preponderance, and is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion. Ripley v. Chater, 67 F.3d 552,
555 (5th Cir.1995). A finding of no substantial evidence will be made only where there is a
“conspicuous absence of credible choices” or “no contrary medical evidence.” Abshire v. Bowen,
848 F.2d 638, 640 (5th Cir.1988) (citing Hames v. Heckler, 707 F.2d 162, 164 (5th Cir.1983)). In
reviewing the substantiality of the evidence, a court must consider the record as a whole and
“must take into account whatever in the record fairly detracts from its weight.” Singletary v.
Bowen, 798 F.2d 818, 823 (5th Cir.1986).
Plaintiff raises four issues on this appeal:
1. The Administrative Law Judge’s decision was not supported by substantial evidence
as the evidence shows plaintiff meets listing 12.04 and 12.06.
2. The Administrative Law Judge’s decision was not supported by substantial evidence
as plaintiff suffers from a combination of impairments that show she is disabled.
3. The Administrative Law Judge erred in discrediting the opinion of Betty Feir, PhD.
4. The Administrative Law Judge erred in failing to present a complete hypothetical to
the V.E. to include plaintiff’s mental impairments.
Issue No. 1:
Plaintiff contends that the ALJ erred in not finding that Plaintiff’s impairments meet or
medically equal the requirements of one of the listed impairments in Listing 12.04 or 12.06,
leading to a finding of disability at Step Three. The Listings are generally exacting and a
claimant bears the burden of proving that she meets each of the requirements. Section 12 of the
Listings deals with mental disabilities, and 12.04 covers affective disorders while 12.06 covers
The ALJ found that Plaintiff had no mental limitations. Tr. 16. He noted that “the
claimant has never had mental health treatment.” Tr. 18. “With the exception of a single
instance where the claimant felt anxious during an enclosed MRI, she has never complained of
anxiety or depression. To the extent that the claimant’s self-report of decreased activities and
malaise could be construed as psychological complaints, she has only exhibited these symptoms
once in the record, and no objective findings or psychiatric diagnoses were made during that
visit. In short, there is no evidence prior to her representative-referred examination with Dr. Feir
of any mental impairments.” Tr. 18.
Plaintiff carefully discusses the legal requirements of the two Listings at issue, but offers
almost no evidence in the record to satisfy those requirements, other than the report of Dr. Feir,
which is addressed below. The ALJ, by contrast, conducted a very thorough and compelling
review of all of the medical evidence, the testimony by the Plaintiff, the statements of her friends
and family, and the ALJ’s personal observations of the Plaintiff during the hearing. Each of the
Listings requires “medically documented persistence” of the relevant syndrome, along with
evidence of specifically listed symptoms or affects on the claimant’s ability to perform certain
functions. See 20 C.F.R. Part 404, subpart P, appendix 1, 12.04, 12.06. The Court finds that the
testimony of the Plaintiff, discussed in the Plaintiff’s Brief does not come close to satisfying the
requirements of the Listings, especially the requirement of medically documented persistence,
nor can the Court find such evidence in its review of the record. Accordingly, Plaintiff is not
entitled to relief on this issue.
Issue No. 2:
Despite the description of this issue in the heading, the argument in the Plaintiff’s Brief
concerns the ALJ’s decision to discount Plaintiff’s complaints of pain and other disabling
symptoms. The Court notes that, while the ALJ has great discretion in weighing the evidence
and determining credibility, there are parameters governing those findings. For instance, in
Social Security Ruling 96-7, the Commissioner clarified that:
It is not sufficient for the adjudicator to make a single, conclusory statement that
“the individual's allegations have been considered” or that “the allegations are (or are not)
credible.” It is also not enough for the adjudicator simply to recite the factors that are
described in the regulations for evaluating symptoms. The determination or decision must
contain specific reasons for the finding on credibility, supported by the evidence in the
case record, and must be sufficiently specific to make clear to the individual and to any
subsequent reviewers the weight the adjudicator gave to the individual's statements and
the reasons for that weight.
A review of the ALJ’s opinion, especially at pages 9 to 12, shows that the ALJ did
perform the required analysis of the record and give the specific reasons for his credibility
determination. The Court finds that the record, and particularly the medical evidence, amply
supports the ALJ’s finding that the Plaintiff’s complaints of pain and disabling symptoms were
not fully credible. The Court has also reviewed the testimony of the Plaintiff and finds that it is
consistent with the findings of the ALJ and does not support credible limitations beyond those
provided for in the residual functional capacity assessed by the ALJ. Accordingly, Plaintiff has
not shown entitlement to relief on this issue.
Issue No. 3:
After the hearing with the ALJ, Plaintiff’s counsel had Plaintiff evaluated by Dr. Betty
Feir, a clinical psychologist. Dr. Feir’s four-page report consists entirely of a single interview
with Plaintiff, without any testing or the review of other medical records. The report recounts
that Plaintiff has only had mental health treatment once, 15 years ago, after she tried to kill
herself with alcohol and pills. Tr. 169. The account is confused and centers on Plaintiff walking
down a road in a small Missouri town and almost being hit by a car. Later in the report, Plaintiff
is noted to have said that she has had suicidal thoughts but “has never made an attempt and does
not have a plan.” Tr. 171. As observed by the ALJ, there is very little in the report to support
the diagnosis of depressive disorder and anxiety disorder. Given that Dr. Feir did not prescribe
or even recommend any treatment, and described her undertaking as an evaluation, there is a
serious question whether she should be deemed a treating physician within the meaning of SSR
96-2p. However, to the extent she does qualify as such, the ALJ set forth a detailed and wellconsidered statement of his reasons for discounting her findings. Tr. 19-21. Accordingly,
Plaintiff has not shown entitlement to relief on this issue.
Issue No. 4:
The final issue presented is whether the ALJ framed the hypothetical question to the
Vocational Expert at the hearing in such a way as to properly encompass all of Plaintiff’s
exertional and non-exertional limitations. Plaintiff argues that the ALJ erred in failing to include
depression, anxiety, limited I.Q. and chronic pain. While it is true that the ALJ did not include
these conditions, that was because he did not find sufficient evidence to support any limitations
based on those complaints. Plaintiff is unable to point to any evidence in the record, beyond that
already discussed above, that would support non-exertional limitations based on pain or mental
conditions. The ALJ’s decision on the scope of the hypothetical question is supported by
substantial evidence in the record.
Plaintiff also argues that the Vocational Expert testified that the housekeeper/cleaner job
was in the medium to heavy exertional level and thus outside Plaintiff’s residual functional
capacity as found by the ALJ. However, the record makes clear that the expert testified that
housekeeper/cleaner was in the light category, and it was the nursing home housekeeper and
hospital housekeeper jobs that fell above that. Tr. 205. Accordingly, Plaintiff has not shown a
basis for relief on this issue.
Having found that the record supports the finding of the ALJ, the decision of the
Commissioner is affirmed and this action is dismissed.
SIGNED this 3rd day of January, 2012.
SIGNED this 14th day of May, 2015.
ROY S. PAYNE
UNITED STATES MAGISTRATE JUDGE
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