Factory v. Commissioner, SSA

Filing 29

MEMORANDUM OPINION AND ORDER re 1 Complaint filed by Karen Factory. The decision of the Commissioner is AFFIRMED. Signed by Magistrate Judge Christine A. Nowak on 3/29/2017. (daj, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
KAREN FACTORY,

Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,

Defendant.

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§ CIVIL ACTION NO. 4:15-CV-00731-CAN
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MEMORANDUM OPINION AND ORDER
Plaintiff brings this appeal under 42 U.S.C. § 405(g) for judicial review of the final decision
of the Commissioner of Social Security (“Commissioner”) denying her claim for disability
insurance benefits and supplemental security income [Dkt. 1].

After 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.
BACKGROUND
I.

PROCEDURAL HISTORY OF THE CASE
On May 24, 2013, Karen Factory (“Plaintiff”) filed applications for disability income

benefits (“DIB”) and supplemental security income (“SSI”) under Titles II and XVI of the Social
Security Act (“Act”), alleging an onset of disability date of September 27, 2012 [TR at 208-14].
Plaintiff’s application was initially denied by notice, and again upon reconsideration, after which
Plaintiff requested a hearing before an administrative law judge (“ALJ”). Id. at 146-152, 161. The
ALJ conducted a hearing on November 5, 2014 (“Hearing”), and heard testimony from Plaintiff,
witness Quentin Salmond and Vocational Expert Donald Anderson (“Mr. Anderson” or “VE”).

ORDER – Page 1

Id. at 63-92. Plaintiff was represented by counsel at Hearing. Id. On February 17, 2015, the ALJ
issued his decision denying benefits, and found Plaintiff not disabled at step five of the prescribed
sequential evaluation process (discussed infra). Id. at 45-62. On August 21, 2015, the Appeals
Council denied Plaintiff’s request for review, making the decision of the ALJ the final decision of
the Commissioner. Id. at 1-5.
On October 20, 2015, Plaintiff filed her Complaint with this Court [Dkt. 1].

On

April 11, 2016, the Administrative Record was received from the Social Security Administration
(“SSA”) [Dkt. 8]. On April 14, 2016, this case was assigned to the undersigned by consent of all
Parties for further proceedings and entry of judgment [Dkt. 11].

Plaintiff filed her Brief on

September 14, 2016 [Dkt. 26]. On November 14, 2016, the Commissioner filed her Brief in
Support of the Commissioner’s Decision [Dkt. 28].
II.

STATEMENT OF RELEVANT FACTS
1.

Age, Education, and Work Experience

Plaintiff was born on July 12, 1954, making her fifty-eight years of age on the date of
alleged onset, and sixty on the date of determination [TR at 208]. Plaintiff completed high school.
Id. at 239-40. Her past relevant work experience is in medical sales. Id. Plaintiff was a “person
of advanced age” on the date of decision. See 20 C.F.R. § 404.1563(e).
2.

Summary of Relevant Medical Treatment

Plaintiff had dental implant surgery in September 2012. [TR at 308]. Thereafter, Plaintiff
complained of “severely increased pain along the left side of jaw” and reported experiencing “dull,
constant burning” pain and numbness. Id. On November 8, 2012, Plaintiff presented with these
symptoms to neurologist Shari Rosen-Schmidt, M.D. Id. It was determined that Plaintiff was
experiencing post-surgical infection requiring treatment with antibiotics, and one implant was removed
after it was found to have been touching a nerve. Id. Plaintiff further reported to Dr. Rosen-Schmidt
ORDER – Page 2

that she had a recent instance of blurred vision and had increased pain when talking or chewing. Id.
On examination, Dr. Rosen-Schmidt noted decreased sensation in the fifth cranial nerve (the
trigeminal) with loss of sensation in the V1, V2, and V3 distributions but no loss of strength or facial
symmetry. Id. at 309. Dr. Rosen-Schmidt assessed trigeminal neuralgia, prescribed medications, and
scheduled an MRI examination. Id. at 310. On November 13, 2012, Plaintiff continued to complain
of pain and Dr. Rosen-Schmidt conducted a further examination. Id. at 304. On December 13, 2012,
Plaintiff again saw Dr. Rosen-Schmidt, reporting that “[i]nstead of constant pain, she has occasional
intermittent pain” and “hasn’t had the stabbing headache in a very long time.” Id. at 301. On March
14, 2013, Plaintiff saw Dr. Rosen-Schmidt again and reported that she “had another implant taken out
3 weeks ago, which helped with her jaw pain tremendously.” Id. at 298. Plaintiff reported still being
sensitive to contact on her jaw, and could not stand contact with cold items. Id. On examination, Dr.
Rosen-Schmidt continued to observe decreased sensation in the V3 distribution. Id at 299. Plaintiff
also seemingly ceased using her prescribed pain medication in this timeframe. Id. at 300.
Plaintiff underwent physical therapy from April to June 2013, with no significant changes in
her condition. Id. at 315-325.

During this time, Plaintiff saw Dr. David Garza for complaints of

depression, crying spells and decreased concentration. Id. at 358. Plaintiff also complained of other
symptoms such as loss of vision to Dr. Garza and other medical providers. Id. at 407, 431. Thereafter,
Cary Conaway, Ph.D., performed a psychological evaluation of Plaintiff. Id. at 329-34. On August
30, 2013, Plaintiff reported to Dr. Conaway that she was in “constant pain” due to her trigeminal nerve
being severed, and that the pain rendered her unable to focus or concentrate. Id. at 330. On
examination, Dr. Conaway observed that Plaintiff demonstrated “average persistence and effort,” that
Plaintiff’s “ability to maintain focus and concentration is not significantly limited.” Id. at 331-33. The
records further reflect that Plaintiff displayed a “flatness of affect and limited display of emotion,” but
“no confusion or reduction in awareness.” Id. at 332-33. Dr. Conaway diagnosed Adjustment Disorder
with Depressed Mood, noting depression and irritability relating to her current medical condition. Id.
ORDER – Page 3

at 334. Plaintiff also saw psychiatrist Aaron Van Wright, M.D., during this same time frame, for
medication management of her depressive problems. Id. at 401-03. After trying several different
medications, Plaintiff reported discontinuing her medications and Dr. Wright recommended Plaintiff
return as needed. Id. at 401-08. In this same vein, Plaintiff saw Stephanie Jones, M.D., on November
8, 2013, for pain management follow-up.

Id. at 422-23.

Plaintiff reported discontinuing all

medications for her depressive conditions. Id. Then, on November 17, 2014, Plaintiff saw Padraig
O’Suilleabhain, M.D., for pain complaints, reporting sharp jaw pains “maybe a couple of times a day,”
but she can also “go a couple of days without it.” Id. at 450. At this time, Plaintiff reported taking
only Ibuprofen for her pain. Id. On examination, Dr. O’Suileabhain observed no facial paralysis or
abnormal muscle movements, with reduced sensitivity in the mandible and increased sensitivity on her
left temple. Id. at 451. Dr. O’Suileabhain opined that Plaintiff’s sensation loss was unlikely to be
corrected, but that Plaintiff might consider surgical intervention to try to manage her sudden
recurrences of pain. Id.

2.

Hearing Testimony

At Hearing, Plaintiff testified extensively regarding her symptoms and complaints of pain.
Plaintiff testified that a dental accident had completely changed her life, that she experienced
unpredictable, chronic pain in her mouth and that it felt like “a knife is stuck in [her] lip. [Her]
teeth hurt. [Her] mouth hurts. [Her] neck hurts. [She has] stabbing, phantom pains that come
uncontrollably.” Id. at 69. Plaintiff testified she also experiences blurred vision. Id. Plaintiff
explained that her pain is unpredictable, and varies in intensity from day to day. Id. at 69, 71.
Plaintiff stated that her pain is more intense with rainy or cold weather, and that she frequently
develops headaches from the pain in her mouth. Id. at 70. Plaintiff went on to explain regarding
the pain in her teeth, “if you have one toothache but when you have a whole row of teeth hurting
you can’t, I can’t concentrate for long periods of time.” Id. at 71. Plaintiff reported that speaking
ORDER – Page 4

causes more pain and that nothing can touch her face without severe pain. By way of example,
she explained that her husband cannot kiss her due to the pain, that the wind touching her causes
pain, and that she cannot sleep at night because even the bed covers touching her face cause
significant pain. Id. at 70. Plaintiff also reported that her fingers, hand and neck are often numb.
Id. Plaintiff was specifically asked how often she had pain, to which she responded “[n]ot every
day but most days the pain is there. . . . On some days I feel better but most days the chronic pain
is there and I have no control when I have these stabbing pains.” Id. at 71. Plaintiff’s husband,
Quentin Salmond, also testified at hearing. Id. at 83. Mr. Salmond’s testimony largely mirrored
Plaintiff’s own statements concerning her pain and other symptoms. He testified that he very
seldom sees Plaintiff when she is not in pain. Id. at 86.
III.

FINDINGS OF THE ALJ
1.

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. First, a claimant who is engaged in substantial
gainful employment at the time of his disability claim is not disabled. 20 C.F.R. § 404.1520(b).
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).
Third, if the alleged impairment is severe, the claimant is considered disabled if his impairment
corresponds to a listed impairment in 20 C.F.R., Part 404, Subpart P, Appendix 1.
20 C.F.R. § 404.1520(d). 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). Finally, a claimant who cannot return to his past work is not disabled if

ORDER – Page 5

he has the residual functional capacity to engage in work available in the national economy.
20 C.F.R. § 404.1520(f).
Under the first four steps of the analysis, the burden lies with the claimant to prove
disability. Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995). In this case, the determination was
made at the fifth step concerning whether Plaintiff demonstrated impairments which prevented her
from performing a significant number of jobs in the economy. See 20 C.F.R. §§ 404.1520(g),
416.920(g). 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 her 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).
2.

ALJ’s Disability Determination

After hearing testimony and conducting a review of the facts of Plaintiff’s case, the ALJ
made the following sequential evaluation. At step one, the ALJ found that Plaintiff had not
engaged in substantial gainful activity since September 27, 2012, and any work done after that
date was not performed at a substantial gainful activity level [TR at 50]. At step two, the ALJ
determined that Plaintiff had the severe impairment of affective disorder. Id. The ALJ further
noted at step two that Plaintiff has other impairments of trigeminal neuralgia, degenerative disc
disease of the cervical spine, and hypertension, which he adjudged to be not severe. Id. at 50-51.
At step three, the ALJ found that these impairments, or combination of impairments, did not meet
or medically equal the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P,
Appendix 1. Id. at 51. At step four, the ALJ found that Plaintiff had the residual functional

ORDER – Page 6

capacity to perform a full range of light work at all exertional levels but with the following
nonexertional limiations: she can perform only simple, repetitive tasks with no more than
occasional contact with the general public. Id. at 54. Continuing the step four analysis, the ALJ
then determined that Plaintiff was not able to perform her past relevant work. Id. at 56. The ALJ,
made findings at step five, that Plaintiff’s residual functional capacity allowed her to perform work
that existed in significant numbers in the national economy, including as a folder, garnisher, and
pairer. Id. at 57. Based on this determination, the ALJ concluded Plaintiff was not disabled from
September 27, 2012 through February 17, 2015, the date of the ALJ’s decision.
Id. at 58.
STANDARD OF REVIEW
In an appeal under § 405(g), this Court must review the Commissioner’s decision to
determine whether there is substantial evidence in the record to support the Commissioner’s factual
findings and whether the Commissioner applied the proper legal standards in evaluating the
evidence. Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994); 42 U.S.C. § 405(g). Substantial
evidence is such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion. Cook v. Heckler, 750 F.2d 391, 392 (5th Cir. 1985); Jones v. Heckler,
702 F.2d 616, 620 (5th Cir. 1983). This Court cannot reweigh the evidence or substitute its
judgment for that of the Commissioner. Bowling v. Shalala, 36 F.3d 431, 434 (5th Cir. 1995).
Additionally, any conflicts in the evidence, including the medical evidence, are resolved by the
ALJ, not the reviewing court. Carry v. Heckler, 750 F.2d 479, 484 (5th Cir. 1985).
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, 750

ORDER – Page 7

F.2d at 393. “Substantial gainful activity” is determined by a five-step sequential evaluation
process, as described above. 20 C.F.R. § 404.1520(a)(4).
ANALYSIS
Plaintiff argues that the ALJ erred in two respects. She argues that he erred in failing to
recognize all of Plaintiff’s severe impairments at step two of the sequential disability analysis, and
in assessing or evaluating Plaintiff’s subjective complaints [Dkt. 26 at 3].
I.

The ALJ’s Step Two Determination
Plaintiff contends that the ALJ erred by not including her trigeminal neuralgia as a severe

impairment at step two, arguing that the ALJ’s severity finding is “somewhat confusing,”
“internally inconsistent,” and does not adhere to the standard set forth in Stone v. Heckler, 752
F.2d 1099 (5th Cir. 1984). Id. at 3-10. At step two of the sequential evaluation process, the ALJ
“must consider the medical severity of [the claimant’s] impairments.”

20 C.F.R. §

404.1520(a)(4)(ii),(c) (2012). To comply with this regulation, the ALJ “must determine whether
any identified impairments are ‘severe’ or ‘not severe.’” Herrera v. Comm’r of Soc. Sec., 406 F.
App’x 899, 903 (5th Cir. 2010) (per curiam). In the Fifth Circuit, whether an impairment is
“severe” is determined by applying the standard in Stone. Under that standard (often referred to
as the severity standard), an impairment is 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.” Stone, 752 F.2d at 1101. In other words, “the claimant need only . . . make a de
minimis showing that [her] impairment is severe enough to interfere with her ability to do work.”
Anthony v. Sullivan, 954 F.2d 289, 294 n.5 (5th Cir. 1992) (citation omitted). When determining
whether a claimant’s impairments are severe, an ALJ is required to consider the combined effects
of all physical and mental impairments regardless of whether any impairment, considered alone,

ORDER – Page 8

would be of sufficient severity. Loza v. Apfel, 219 F.3d 378, 393 (5th Cir. 2000) (citing 20 C.F.R.
§ 404.1523) (finding that an ALJ is required to consider the combined effects of all physical and
mental impairments regardless of whether any impairment, considered alone, would be of
sufficient severity). The claimant has the burden to establish that his impairments are severe. See
Bowen v. Yukert, 482 U.S. 137, 146 n.5 (1987).
In this case, at step two, the ALJ noted that, in addition to affective disorder (which was
determined to be a severe impairment), Plaintiff “also [had] the impairments of trigeminal
neuralgia, degenerative disc disease of the cervical spine, and hypertension, which do not impose
any limitations in her ability to perform a basic work activity, except when considered in
combination with her severe impairments, and as affects [sic] solely her mental activities due to
symptoms of pain.” [TR at 50]. The ALJ expressly found these additional impairments, including
specifically her trigeminal neuralgia (which is the primary focus of Plaintiff’s appeal), were not
severe. Id. The ALJ in reaching this determination discussed Plaintiff’s symptoms associated
with her trigeminal neuralgia, ultimately concluding that when contrasted against the objective
medical evidence, her trigeminal neuralgia would not limit her ability to perform any basic work
activity. Id. at 51. Plaintiff argues that in combination her impairments are severe, and further
that Plaintiff’s mental impairment (affective disorder)—which the ALJ did find severe—stems
from her pain, and the pain results from Plaintiff’s trigeminal neuralgia, thus rendering the ALJ’s
findings internally inconsistent [Dkt. 26 at 4]. Plaintiff also argues that the medical records are
replete with evidence of Plaintiff’s pain. Id. at 4-8. The Commissioner responds that ALJ properly
considered the appropriate medical evidence, assessed Plaintiff’s severe impairments, and then
proceeded beyond step two [Dkt. 28 at 4]. The Commissioner also argues that because the ALJ

ORDER – Page 9

proceeded beyond step two, Plaintiff cannot demonstrate prejudice, even if the trigeminal
neuralgia should have been considered as a severe impairment. Id.
The Fifth Circuit has stated that a failure to make a severity finding at step two is not
reversible error when an ALJ continues with the sequential evaluation process. Dise v. Colvin,
630 F. App’x 322, 324 (5th Cir. 2015) (“[B]ecause the ALJ proceeded to step five of the analysis,
any failure to find additional impairment severe at step two does not justify remand.”); Taylor v.
Astrue, 706 F.3d 600, 603 (5th Cir. 2012) (Stone error does not require automatic remand where
ALJ proceeds past step two); Herrera, 406 F. App’x at 903 (citing Adams v. Bowen, 833 F.2d 509,
512 (5th Cir. 1987) (noting the ALJ’s failure to make a severity finding at step two was not a basis
for remand where the ALJ proceeded to later steps of the analysis); Mays v. Bowen, 837 F.2d 1362,
1365 (5th Cir. 1988) (per curiam) (“[I]f the ALJ proceeds past the impairment step in the sequential
evaluation process the court must infer that a severe impairment was found.”); McDaniel v. Colvin,
No. 13-CV-989, 2015 WL 1169919, at *3 (N.D. Tex. Mar. 13, 2015) (recognizing Fifth Circuit
has clarified that remand is no warranted when the ALJ proceeded to later steps of the analysis);
Golas v. Colvin, No. 3:13-CV-4110, 2014 WL 2587633, at *10 (N.D. Tex. June 10, 2014)
(“Remand is not warranted when, even where the ALJ did not explicitly determine the severity of
certain impairments, the ALJ proceeded to later steps of the analysis.”); Nejmeh v. Colvin, No.
4:14-CV-816, 2016 WL 642518, at *2 (N.D. Tex. Feb. 18, 2016) (discussing Fifth Circuit
clarification in Taylor that Stone error does not require remand unless claimant harmed); Williams
v. Colvin, No. 4:14-1526, 2015 WL 730009, at *10 (S.D. Tex. Feb. 19. 2015) (remand based on
step two not required where ALJ proceeded through remaining steps of sequential analysis). The
rationale being that the severity finding at step two is a threshold assessment that allows the ALJ
to dismiss a claim without further evaluation. Delgado v. Colvin, No. 5:13-cv-137, 2014 WL

ORDER – Page 10

3361752, at *3-4 (N.D. Tex. July 9, 2014). And, thus, when an ALJ proceeds past step two, the
case does not turn on the question of severity, but, instead, whether the claimant’s impairments
prevent her from performing work. Id.
The ALJ in this case did not end his inquiry at step two, rather, he proceeded past step two
and made his determination at step five of the sequential evaluation [TR at 51-58]. Again, at step
two the ALJ expressly found that Plaintiff’s trigeminal neuralgia was not severe. Id. at 51. The
ALJ then proceeded through each of steps three, four and five. At step four, in determining
Plaintiff’s RFC, the ALJ clearly noted that he considered all of the medical evidence, including
“claimant’s allegations” regarding pain, which the ALJ found lacked substantial support from
objective findings in the record. Id. at 55. The ALJ’s determination clearly demonstrates that,
while he did not include trigeminal neuralgia in the list of severe impairments, he acknowledged
and considered the impact of her symptoms (discussed further infra). Accordingly, even if the
ALJ erred by finding Plaintiff’s trigeminal neuralgia was not severe, the error was harmless
because he proceeded beyond step two. Remand is not required on this issue.
II.

The ALJ’s “Credibility” Determination
Plaintiff next argues that the ALJ failed to properly evaluate Plaintiff’s subjective

complaints, predominantly her claims of pain, mental impairment, and vision impairment, making
an improper credibility determination that was not supported by substantial evidence
[Dkt. 26 at 11]. The Commissioner responds that the ALJ considered Plaintiff’s complaints, and
found her claims were not consistent with the objective medical evidence [Dkt. 28 at 7]. The
Commissioner thus argues the ALJ properly declined to credit Plaintiff’s descriptions of her
symptoms. Id. at 7-11.

ORDER – Page 11

As an initial matter, the Court addresses Plaintiff’s contention that to assess Plaintiff’s
subjective complaints the Court should retroactively apply SSR-16-3p in this case [Dkt. 26 at 11].
Social Security Ruling SSR 96-7p—that was in effect at the time of the ALJ’s decision—sets forth
a two-step process for evaluating a claimant’s subjective complaints. SSR 96-7p, 1996 WL
374186, at *2 (July 2, 1996). Effective March 16, 2016, the Social Security Administration
eliminated “use of the term ‘credibility’ from [its] sub-regulatory policy,” clarifying “that
subjective symptom evaluation is not an examination of an individual’s character.” SSR 16-3p,
2016 WL 1020935, at *1 (Mar. 16, 2016). However, when the ALJ issued the decision here, SSR
96-7p was the relevant social security ruling and specifically used the term “credibility.” SSR 967P, 1996 WL 374186, at *7 (July 2, 1996). Thus, the Court finds that the credibility finding at
issue is properly analyzed under SSR 96-7p. See Mayberry v. Colvin, No. CV G-15-330, 2016
WL 7686850, at *5 (S.D. Tex. Nov. 28, 2016), adopted by 2017 WL 86880 (S.D. Tex. Jan. 10,
2017) (noting that “[b]ecause the text of SSR 16–3p does not indicate the SSA’s intent to apply it
retroactively, the Court would be disinclined to do so”); see also Buchanan v. Berryhill, No. 3:15CV-3287-BH, 2017 WL 998513, at *9 n.4 (N.D. Tex. Mar. 14, 2017) (same).1
Under SSR 96-7p, the ALJ must first consider whether the claimant had a medically
determinable impairment that could reasonably be expected to produce the alleged symptoms.
SSR 96-7p, 1996 WL 374186, at *2 (July 2, 1996). Once such an impairment is shown, the ALJ
must evaluate the intensity, persistence, and limiting effects of the alleged symptoms to determine
the extent to which they limit the individual’s ability to do basic work activities. Id. For this
purpose, whenever the claimant’s statements concerning the intensity, persistence, or limiting
effects of pain or other symptoms are not substantiated by objective medical evidence, the ALJ

1

The Court notes that even if SSR 16-3p applied retroactively, the outcome herein would remain the same.

ORDER – Page 12

must make a credibility finding regarding the claimant’s statements. Id.; Falco v. Shalala, 27 F.3d
160, 164 (5th Cir. 1994) (citing Scharlow v. Schweiker, 655 F.2d 645, 648-49 (5th Cir. 1985)).
The ALJ’s credibility determination must be based on consideration of the entire record, including
medical signs and laboratory findings, and statements by the claimant and her treating or
examining sources concerning the alleged symptoms and their effect. SSR 96-7p, 1996 WL
374186, at *2. The ALJ must also consider a non-exclusive list of seven relevant factors in
assessing the credibility of a claimant’s statements:
1. The individual’s daily activities;
2. The location, duration, frequency, and intensity of the individual’s pain or
other symptoms;
3. Factors that precipitate and aggravate the symptoms;
4. The type, dosage, effectiveness, and side effects of any medication the
individual takes or has taken to alleviate pain or other symptoms;
5. Treatment, other than medication, the individual receives or has received
for relief of pain or other symptoms;
6. Any measures other than treatment the individual uses or has used to relieve
pain or other symptoms (e.g., lying flat on his or her back, standing for 15
to 20 minutes every hour, or sleeping on a board); and
7. Any other factors concerning the individual’s functional limitations and
restrictions due to pain or other symptoms.
Id. at *3. Although the ALJ must give specific reasons for his credibility determination, “neither
the regulation nor interpretive case law requires that an ALJ name, enumerate, and discuss each
factor in outline or other rigid, mechanical form. The decision must merely sufficiently specify
those factors that were considered. See e.g., Giles v. Astrue, 433 F. App’x 241, 249 n.30 (5th Cir.
2011); Prince v. Barnhart, 418 F. Supp. 2d 863, 871 (E.D. Tex. 2005). In this same regard, the
Fifth Circuit has explicitly rejected the requirement that an ALJ “follow formalistic rules” when
assessing a claimant’s subjective complaints. Falco, 27 F.3d at 164. The ALJ’s evaluation of the
credibility of subjective complaints is entitled to judicial deference. See Carrier v. Sullivan, 944
F.2d 243, 247 (5th Cir. 1991) (per curiam). As the ALJ is in the best position to assess a claimant’s

ORDER – Page 13

credibility, since he “enjoys the benefit of perceiving first-hand the claimant at the hearing.”
Falco, 27 F.3d at 164 n.18; Harrell v. Bowen, 862 F.2d 471, 480 (5th Cir. 1988) (explaining that
the evaluation of a claimant’s subjective symptoms is a task particularly within the province of the
ALJ who had an opportunity to observe whether he or she seemed to be disabled). With respect
to the assessment of pain, the Fifth Circuit has also offered additional guidance:
Whether pain is disabling is an issue for the ALJ, who has the primary responsibility
for resolving conflicts in the evidence. It is within the ALJ’s discretion to determine
the disabling nature of a claimant’s pain, and the ALJ’s determination is entitled to
considerable deference. The determination whether an applicant is able to work
despite some pain is within the province of the administrative agency and should
be upheld if supported by substantial evidence. Moreover, pain must be constant,
unremitting, and wholly unresponsive to therapeutic treatment to be disabling.
Subjective complaints of pain must also be corroborated by objective medical
evidence.
Chambliss v. Massanari, 269 F.3d 520, 522 (5th Cir. 2001) (internal citations omitted); Cook v.
Heckler, 750 F.2d 391, 395 (5th Cir. 1985) (the mere existence of pain is not an automatic ground
for obtaining disability benefits).
Here, the ALJ acknowledged that Plaintiff’s medically determinable impairments could be
expected to cause some of her alleged symptoms, but he concluded that her testimony was not
fully credible [TR at 55-56 (“[a]fter careful consideration of the record as a whole, the undersigned
finds that the claimant’s medically determinable impairments can reasonably be expected to
produce some of the alleged symptoms. However, the claimant’s statements concerning the
intensity, persistence and limiting effects of these symptoms have been determined to diminish the
capacity for basic work activities only to the extent to which they can reasonably be accepted as
consistent with the objective medical and other evidence and the above residual functional capacity
for the reasons explained in this decision.)]. The ALJ further expressly noted the credibility factors
listing in SSR 96-7p and addressed several of them, although not in a formalistic fashion [TR at

ORDER – Page 14

51-54]. He discussed Plaintiff’s alleged symptoms (including the alleged frequency and intensity),
the diagnoses of her doctors and their related treatment, her past surgeries, his observations of her
at the hearing with respect to her daily activities and the medical evidence related to same (such
as speaking and communicating). Id. He also noted the inconsistent statements regarding the
duration and frequency of the pain and that her current medication is an over-the-counter
medication. Id. The ALJ specifically compared Plaintiff’s testimony concerning her impairments
and the impact of her pain on her ability to work to the objective medical findings in the record,
her history of medical treatment, and her activities of daily living. Id. The ALJ’s discussion shows
that he relied primarily on the medical evidence of record to find Plaintiff not credible. Although
not in a formalistic fashion, he considered the factors for determining credibility and adequately
explained his reasons for rejecting her subjective complaints. The ALJ’s decision is sufficiently
specific to show that the regulatory factors were considered. Accordingly, there is substantial
evidence to support his determination. Remand is not required on this issue.

CONCLUSION
The Court concludes that the ALJ properly conducted the sequential analysis and found
that Plaintiff was not disabled. Pursuant to the foregoing, the decision of the Commissioner is
AFFIRMED.

SIGNED this 29th day of March, 2017.

___________________________________
Christine A. Nowak
UNITED STATES MAGISTRATE JUDGE

ORDER – Page 15