Alexander v. Astrue
MEMORANDUM OPINION AND ORDER. Pursuant to the foregoing, the Court AFFIRMS the decision of the Administrative Law Judge. Signed by Magistrate Judge Don D. Bush on 2/15/2013. (kls, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
COMMISSIONER OF SOCIAL
CASE NO. 4:11cv44
MEMORANDUM OPINION AND ORDER OF
UNITED STATES MAGISTRATE JUDGE
The Plaintiff brings this appeal under 42 U.S.C. § 405(g) for judicial review of a final
decision of the Commissioner denying his claim for Disability Insurance Benefits (“DIB”). After
carefully reviewing the briefs submitted by the parties, as well as the evidence contained in the
administrative record, the Court finds that the Commissioner’s decision should be AFFIRMED
HISTORY OF THE CASE
Plaintiff protectively filed an application for Supplemental Security Income disability
benefits under Title XVI of the Social Security Act on May 19, 2008, claiming entitlement to
disability benefits due to cervical problems, arm numbness, low back pain, herniated disc, bilateral
chronic radiculopathy, hepatitis C, ulcers, anemia, and knee pain due to previous surgery. Plaintiff’s
application was denied initially and on reconsideration. Pursuant to Plaintiff’s request, a hearing was
held before an Administrative Law Judge (ALJ) in Dallas, Texas on March 30, 2009. Plaintiff was
represented by counsel at the proceeding. At the hearing, Plaintiff and the ALJ’s vocational expert,
Suzette Skinner, testified.
On October 30, 2009, the ALJ denied Plaintiff’s claim, finding Plaintiff “not disabled.”
Plaintiff requested Appeals Council review, which the Appeals Council denied on November 17,
2010. Therefore, the October 30, 2009 decision of the ALJ became the final decision of the
Commissioner for purposes of judicial review under 42 U.S.C. § 405(g). See 20 C.F.R. § 404.981
ADMINISTRATIVE LAW JUDGE'S FINDINGS
After considering the record, the ALJ made the prescribed sequential evaluation. The ALJ
made the following findings:
The claimant meets the insured status requirements of the Social Security Act
through June 30, 1999.
The claimant has not engaged in substantial gainful activity since January 1,
2003, the alleged onset date (20 C.F.R. 404.1571 et seq., and 416.971 et
The claimant has the following severe impairments: degenerative disease of
the spine, hypertension, hepatitis, and status post left knee surgery (20 C.F.R.
§ 404.920 (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. 416.920(d), 416.925 and 416.926).
After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform a limited range of
light work as defined in 20 C.F.R. 416.967(b) in that he can do activities that
include lifting and carrying 20 pounds occasionally and 10 pounds frequently;
standing/walking for 6 hours a day, and sitting for 6 hours in an 8 hour
workday; and occasionally climbing ramps and stairs, balancing, stooping,
crouching, and kneeling.
The claimant is unable to perform any past relevant work (20 C.F.R.
The claimant was born on May 20, 1957 and was 51 years old, which is
defined as an individual closely approaching advanced age, on the alleged
disability onset date (20 C.F.R. 404.1563 and 416.963).
The claimant has at least a high school education and is able to communicate
in English (20 C.F.R. 416.964).
Transferability of job skills is not material to the determination of disability
because using the Medical-Vocational Rules as a framework supports a
finding that the claimant is “not disabled” whether or not the claimant has
transferable job skills (See SSR 82-41 and 20 C.F.R. Part 404, Subpart P,
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. 416.969 and
The claimant has not been under a disability, as defined in the Social Security
Act, from May 19, 2008 through the date of this decision (20 C.F.R.
STANDARD OF REVIEW
Judicial review of the Commissioner’s final decision of no disability is limited to two
inquiries: whether the decision is supported by substantial evidence in the record, and whether the
proper legal standards were used in evaluating the evidence. Greenspan v. Shalala, 38 F.3d 232, 236
(5th Cir. 1994). If supported by substantial evidence, the Commissioner’s findings are conclusive
and must be affirmed. Richardson v. Perales, 402 U.S. 389, 390 (1971). Substantial evidence is
more than a scintilla, less than a preponderance, and is such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion. Id. at 401. The Court may not reweigh the
evidence in the record, try the issues de novo, or substitute its judgment for that of the
Commissioner. Bowling v. Shalala, 36 F.3d 431, 434 (5th Cir. 1995). A finding of no substantial
evidence is appropriate only if no credible evidentiary choices or medical findings exist to support
the decision. Johnson v. Bowen, 864 F.2d 340, 343-44 (5th Cir. 1988). The Court is not to
substitute its judgment for that of the Commissioner, and reversal is permitted only “where there is
a conspicuous absence of credible choices or no contrary medical evidence.” Hames v. Heckler, 707
F.2d 162, 164 (5th Cir. 1983).
The legal standard for determining disability under Titles II and XVI of the Act is whether
the claimant is unable to perform substantial gainful activity for at least twelve months because of
a medically determinable impairment. 42 U.S.C. §§ 423(d), 1382c(a)(3)(A); see also Cook v.
Heckler, 750 F.2d 391, 393 (5th Cir. 1985). In determining a capability to perform “substantial
gainful activity,” a five-step “sequential evaluation” is used, as described below.
SEQUENTIAL EVALUATION PROCESS
Pursuant to the statutory provisions governing disability determinations, the Commissioner
has promulgated regulations that establish a five-step process to determine whether a claimant
suffers from a disability. 20 C.F.R. § 404.1520 (1987). First, a claimant who, at the time of his
disability claim, is engaged in substantial gainful employment is not disabled. 20 C.F.R. §
404.1520(b) (1987). Second, the claimant is not disabled if his alleged impairment is not severe,
without consideration of his residual functional capacity, age, education, or work experience. 20
C.F.R. § 404.1520(c) (1987). Third, if the alleged impairment is severe, the claimant is considered
disabled if his impairment corresponds to an impairment described in 20 C.F.R., Subpart P,
Appendix 1 (1987). 20 C.F.R. § 404.1520(d) (1987). Fourth, a claimant with a severe impairment
that does not correspond to a listed impairment is not considered to be disabled if he is capable of
performing his past work. 20 C.F.R. § 404.1520(e) (1987).
At the fifth step, it must be determined whether claimant could perform some work in the
national economy. A claimant who cannot return to his past work is not disabled if he has the
residual functional capacity to engage in work available in the national economy. 20 C.F.R. §
404.1529(f) (1987); 42 U.S.C. § 1382(a).
At this juncture, the burden shifts to the Commissioner to show that there are jobs existing
in the national economy which Plaintiff can perform, consistent with his medically determinable
impairments, functional limitations, age, education, and work experience. See Bowen v. Yuckert, 482
U.S. 137 (1987). Once the Commissioner finds that jobs in the national economy are available to
the claimant, the burden of proof shifts back to the claimant to rebut this finding. See Selders v.
Sullivan, 914 F.2d 614, 618 (5th Cir. 1990).
In this case, a determination was made at the Fifth step.
Plaintiff’s first point of error is that the ALJ erred in finding that he was not disabled at step
three of his analysis. The Social Security Regulations provide in part:
“If you are not doing substantial gainful activity, we always look first at your
physical or mental impairment(s) to determine whether you are disabled or blind.
Your impairment must result from anatomical, physiological, or psychological
abnormalities which can be shown by medically acceptable clinical and
laboratory diagnostic techniques. A physical or mental impairment must be
established by medical evidence consisting of signs, symptoms, and laboratory
findings, not only by your statement of symptoms.”
§ 404.1508 (emphasis added).
Several other sections make it plain that the two inquiries are distinct. The section addressing
evidence requires that applicants “provide medical evidence showing that you have an impairment(s)
and how severe it is during the time you say that you are disabled.” § 404.1512(c) (emphasis added);
see also § 404.1520(c) (distinguishing an “impairment” from a qualifying “severe impairment”);
§ 404.1513(a) (“We need evidence from acceptable medical sources to establish whether you have
a medically determinable impairment(s).”); Sullivan v. Zebley, 493 U.S. 521, 530, 110 S.Ct. 885, 107
L.Ed.2d 967 (1990) (“For a claimant to show that his impairment matches a listing, it must meet all
of the specified medical criteria.”).
Plaintiff complains that the ALJ does not explain why he does not meet the step three listing.
The ALJ correctly cites Listing 1.04. The ALJ specifically states that Alexander does not have a
back impairment producing the neurological deficits noted in the listing. The ALJ further adds that,
although Alexander is limited as to prolonged standing and walking, he is able to ambulate
effectively. The ALJ further adds that no medical source has documented findings equivalent in
severity to the criteria of any listed impairment, individually or in combination with other
Plaintiff contends that he has been diagnosed with spinal stenosis and degenerative disc
disease. Plaintiff points to the fact that there have been two positive straight leg raising tests in
addition to other pain and sensory disorders all noted in the record. The Commissioner responds that
the ALJ did a thorough analysis, but what is missing to satisfy a listing is evidence of nerve root
compression. For example, the records of Denton Regional Medical Center note a MRI of the
lumbar spine. Although degenerative discs are noted, there is also a notation that there is no
significant impact on the exiting nerve roots at L1-5 and that the study is otherwise negative
(TR 141). The burden is on Plaintiff to show that he meets a listing at step three.
Having reviewed counsel’s citations to the record in support of his position, he simply cannot
show any objective medical tests noting a nerve root compression that would meet the exacting
listing requirements of 1.04. Most, if not all, of the evidence cited by counsel are in fact references
to Plaintiff’s own testimony as to numbness, weakness or pain. As the ALJ noted, the descriptions
of the symptoms and limitations which Alexander has testified to have generally been inconsistent
and unpersuasive and not supported by the medical record. Although Plaintiff claims that he was
unable to obtain treatment, the ALJ focuses primarily on the objective medical evidence and the
consultative exam. The ALJ also cites and relies upon the State Agency doctors who opined that
Alexander could do light work consistent with the RFC given to him. Under the Social Security
Regulations, it is entirely proper for the ALJ to consider and accord weight to such evidence. See
20 C.F.R. 404.1527(f)(2)(I). Plaintiff’s first point of error is overruled.
The second point of error is that the ALJ’s RFC assessment was not supported by substantial
evidence. The ALJ is responsible for assessing a claimant’s RFC based on all of the relevant
evidence in the record. Perez v. Barnhart, 415 F.3d 457, 462 (5th Cir. 2005); 20 C.F.R.
§ 404.1546(c). Although the ALJ should obtain a medical source statement describing the types of
work that the claimant can still perform, the absence of such a record, in itself, does not make the
record incomplete. Ripley v. Chater, 67 F.3d 552, 557 (5th Cir. 1995). If substantial evidence in
the record supports an ALJ’s determination of a claimant’s RFC, there is no reversible error. See
id; Gutierrez v. Barnhart, 2005 WL 1994289, at *7 (5th Cir. 2005). Here, there was a medical
RFC refers to the claimant’s ability to do “sustained work-related physical and mental
activities in a work setting on a regular or continuing basis,” eight hours a day, for five days a week
or an equivalent work schedule, despite any physical or mental impairments. SSR 96-8p; 20 C.F.R.
§ 404.1545(a). The ALJ has the responsibility to determine the claimant’s RFC at the administrative
hearing based on all of the evidence, including the medical records, the observations of treating
physicians and other acceptable medical sources, and the claimant’s own description of his
limitations. Anderson v. Shalala, 51 F.3d 777, 779 (8th Cir.1995). The ALJ must resolve conflicts
in the evidence and make credibility determinations based on substantial evidence. Lovelace v.
Bowen, 813 F.2d 55, 59-60 (5th Cir.1987); Allen v. Schweiker, 642 F.2d 799, 801 (5th Cir.1981)
(per curiam). “The [proper] inquiry[ ] is whether the record, read as a whole, yields such evidence
as would allow a reasonable mind to accept the conclusions reached by the ALJ.” Loza v. Apfel, 219
F.3d 378, 393 (5th Cir. 2000).
The ALJ found that Alexander had the ability to perform light work, with some limitations.
Plaintiff contends that the ALJ fails to assess his ability to perform work on a regular and continuous
basis. At his hearing, Alexander stated that his back pain is the worst and he was limited in what
he could do. He stated that his pain was aggravated by bending, sitting, or laying too long. The crux
of the argument is that Alexander could not afford the care he needed for his problems and that the
ALJ’s finding that Alexander’s testimony was inconsistent and unpersuasive because he had not
received the type of medical treatment one would expect for a totally disabled individual ignores his
financial problems in obtaining care. Plaintiff also complains that the ALJ discounted his credibility
erroneously because his work at the “ranch” was limited. Plaintiff also faults the ALJ for “ignoring”
other back conditions and focusing only on his degenerative disc disease.
Much of what Plaintiff complained about as to his limitations was found to be just the
opposite in Dr. Graves’ physical assessment of him. Dr. Graves finds no evidence of radiculopathy.
According to Dr. Graves, Plaintiff had no problem sitting, standing or walking.
It is the ALJ’s responsibility to determine RFC. See 20 C.F.R. §§ 404.1546, 416.946. The
records of Dr. Hisey note no nerve root involvement in Alexander’s back. Dr. Wolski, in reading
his X-rays, noted that he had mild scoliosis, but no spondyloysis. The mere existence of a medically
determinable impairment cannot alone verify subjective allegations of pain. The claimant has to
show functional impairments precluding substantial gainful activity. See Hames v. Heckler,
707 F.2d 162,165 (5th Cir. 1983). Even Dr. Graves found that Plaintiff was in no apparent distress
throughout the exam (TR. 185).
Plaintiff also had excellent upper body muscle and motor function. The records reveal no
restrictions by his back doctors. Based on the record before him, the ALJ was entitled to find that
Plaintiff’s subjective complaints were not supported by the objective medical evidence. See Adams
v. Bowen, 833 F.2d 509,512 (5th Cir. 1987). The record viewed as a whole supports the ALJ’s
Pursuant to the foregoing, the Court AFFIRMS the decision of the Administrative Law
SIGNED this 15th day of February, 2013.
DON D. BUSH
UNITED STATES MAGISTRATE JUDGE
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