HICKS v. Commissioner of SSA
MEMORANDUM OPINION AND ORDER OF DISMISSAL Affirming Social Security Action. Signed by Magistrate Judge Caroline Craven on 10/5/2015. (sm, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
COMMISSIONER, SOCIAL SECURITY §
MEMORANDUM OPINION AND ORDER OF DISMISSAL
Tammy Hicks (“Plaintiff”) initiated this civil action pursuant to the Social Security Act (“The
Act”), Section 405(g) for judicial review of the Commissioner’s denial of Plaintiff’s applications for
Social Security benefits. On July 24, 2014, the case was assigned to the undersigned for all further
proceedings and the entry of judgment in accordance with 28 U.S.C. § 636(c) and the consent of the
parties. The Court is of the opinion the above-entitled Social Security action should be AFFIRMED.
HISTORY OF THE CASE
On September 1, 2011, Plaintiff protectively filed applications for supplemental security
income (“SSI”) and disability insurance benefits (“DIB”), alleging a disability onset date of May 8,
2011, but later amended to September 1, 2011 (Tr. 871). Plaintiff’s application alleges disability due
to carpal tunnel syndrome, a “frozen shoulder,” and “left arm screws.” (Tr. 871, 979-988, 1000). On
appeal, Plaintiff asserts she also suffers from irritable bowel syndrome (“IBS”) and chronic acute
Plaintiff’s claims were denied initially and upon reconsideration. A hearing was held in this
matter on January 9, 2013 (Tr. 888-913). On February 6, 2013, an Administrative Law Judge
(“ALJ”) issued an unfavorable decision (Tr. 868-886). Plaintiff requested the Appeals Council
review the decision. On March 27, 2014, the Appeals Council denied the request (Tr. 1-6). Plaintiff
now seeks judicial review in this Court.
STATEMENT OF THE FACTS
Plaintiff was born April 8, 1969 and was forty-two years old at the time of the alleged onset
date (Tr. 893). Plaintiff did not have a high school education and did not complete the eleventh grade
(Tr. 894). Furthermore, Plaintiff did not have any vocational training or trade schooling (Tr. 894).
Plaintiff had past relevant work as an outside sales person for a telephone company (Tr. 895).
On June 11, 2010 Plaintiff received x-rays from Dr. McMillan of her shoulder and scapula
after she fell off a horse (Tr. 1897). Dr. McMillan found a suspected acute fracture of the superior
lateral aspect of the humeral head with small fracture fragments in Plaintiff’s shoulder but was
unable to obtain an axillary lateral or scapular Y-view because of Plaintiff’s shoulder pain.
Plaintiff’s scapula appeared intact with no fracture identified and no abnormalities noted. No
dislocation of her shoulder joint was expected (Tr. 1898).
Plaintiff saw Dr. Alkire on July 7, 2010, complaining of pain in her arm (Tr. 1786). Plaintiff
stated she had been doing fairly well at home, but had a decreased range of motion in her right
shoulder. She was unable to afford physical therapy but had been taught how to do some exercises.
However, the pain and discomfort had recently increased in her shoulder. Plaintiff had recently
visited the emergency room following a “spat” with her husband which resulted in additional injuries
to her shoulder. Dr. Alkire noted emotional distress from Plaintiff after she began to cry when
describing the incident with her husband.
Plaintiff’s physical examination was largely normal with no issues found other than in her
extremities (Tr. 1787). Her right shoulder showed forward flexion at approximately ninety degrees,
abduction at ninety degrees, and limited external rotation with pain upon forward flexion and internal
rotation. Plaintiff’s left wrist showed a healed carpel from a previous open reduction internal
fixation, dorsiflexion of approximately forty degrees, and a palmar flexion of forty degrees. She was
unable to make a fist. The x-rays of her shoulder showed glenohumeral joint reduction, a fracture
in the tuberosity, and a callus formation in the superior aspect of the humeral head. Dr. Alkire
concluded Plaintiff’s shoulder looked “pretty good” overall (Tr. 1787).
On October 4, 2010 Plaintiff saw Dr. Alkire complaining of a stiff right shoulder. She stated
her wrist was “okay” and usable (Tr. 1602). She could make a fist and had a palmar flexion of about
seventy percent as well as a dorsiflexion of seventy percent passively. Her shoulder had a ninety
percent forward flexion and abduction both passively and actively and her external rotation was
approximately forty percent. X-rays of her right shoulder showed a healed greater tuberosity fracture
with some calcification. However, Dr. Alkire also noted Plaintiff still had some significant
arthrofibrosis of the right shoulder. He recommended she undergo right shoulder manipulation under
anesthesia and receive more physical therapy. Plaintiff stated she did not have the funds for the
operation at the time. Dr. Alkire prescribed her more pain medication to take sparingly and
scheduled a follow-up exam in six weeks.
Plaintiff called Dr. Alkire on October 7, 2010 complaining of constant pain which prevented
her from doing housework. She requested more pain medication, but Dr. Alkire informed Plaintiff
the medication she was currently taking was too much for her already and refused to prescribe any
more. (Tr. 1602).
Plaintiff had a cervical spine MRI taken on November 1, 2011 by Dr. McMillan, who
compared the results to another MRI scan of the cervical spine taken on November 8, 2006. Dr.
McMillan found there was minimal central disc protrusion suggested at C2-3, C3-4, and C4-5
without spinal stenosis, lateral recess narrowing, or foraminal narrowing. The cervical disc levels
were otherwise unremarkable; they were normal in contour and alignment, there was no abnormal
marrow signal, and the visualized portions of the spinal cord was normal in signal (Tr. 1899).
Plaintiff returned to Dr. Alkire for her check-up on February 15, 2011 complaining of pain
in her hand and wrist as well as occasional discomfort in her hips and knees. Dr. Alkire noted a scar
on plaintiff’s left wrist but no deformities. Dr. Alkire also observed Plaintiff had slight tenderness
to palpation over the radial styloid and slight tenderness to palpation over the little finger DIP and
PIP joint with no synovitis. Dr. Alkire prescribed Ultram 50mg for Plaintiff’s pain and sent her for
further tests due to her family history of MCTD [mixed connective tissue disease]. (Tr. 1602).
Plaintiff returned to Dr. Alkire for follow-up on April 21, 2011. She complained of
increasing discomfort in her left hand, stating it felt cold, numb, and tingly. Dr. Alkire noted
Plaintiff could make a full fist and had full extension of the fingers and thumb with no thenar
atrophy, but she was positive for both Tinel’s and Phalen’s on her left side. An x-ray of her wrist
proved normal, but Dr. Alkire noted she may have carpel tunnel syndrome (Tr. 1601).
Plaintiff returned to Dr. Alkire on September 12, 2011 after going to the emergency room
three days earlier. She stated she had intense pain in her shoulder which spread across her upper
back and face. Plaintiff alleged the pain traveled up both sides of her neck into her face and eye, and
she did not believe it was a migraine. Dr. Alkire noted Plaintiff’s right shoulder showed full active
and passive ROM, and she had minimal pain with forward flexion or internal rotation. X-rays of the
right shoulder showed a healed fracture with some calcification, and x-rays of her cervical spine
taken at the emergency room showed no fracture or dislocation but only a small amount of loss of
normal cervical lordosis. Dr. Alkire found no obvious pathology in her chest or lungs. He referred
Plaintiff to a neurologist in order to find out if she had a migraine. Dr. Alkine also ordered an MRI
of the right shoulder to determine if she had an intrinsic pathology to her shoulder (Tr. 1601).
On December 1, 2011, Plaintiff completed the function report for the SSA (Tr. 1027-1034).
She complained of severe pain, numbness in her arms and legs, head and neck pain, and episodes
of passing out and blacking out. Plaintiff stated she seldom cooked, and was infrequently capable
of washing and drying clothes. Furthermore, Plaintiff stated there were days where she would be
unable to do anything “except lay down or sit in a recliner.” Plaintiff claimed she only slept two
hours a night due to pain in her neck, back, and shoulder. She was able to feed herself and use the
bathroom unassisted, but stated she needed help getting dressed due to the limited range of motion
in her right shoulder and poor grip strength in her left hand. Furthermore, Plaintiff claimed she was
unable to properly brush her hair because of this limited range of motion and poor grip strength.
She stated the pain in her right shoulder and wrist causes her hand to become unsteady and she is
unable to properly bathe herself regularly due to the and because she becomes faint and dizzy (Tr.
Plaintiff stated she did not need any special reminders to take care of personal needs or
grooming. She organized her medication so she would not forget to take it. Plaintiff claimed she
was previously capable of preparing three meals a day at least four times a week, but her disability
left her only capable of preparing sandwiches or frozen dinners. Her friends and family provide her
son and herself with meals. Plaintiff stated she was able of doing the laundry, sweeping, and
mopping, but her son assisted her in all three household chores. She alleged she was unable to do
more house or yard work because she was unable to pick up items heavier than five pounds. In
addition, Plaintiff claimed her heart would begin to race or she would begin to black out with
extended physical activity. Plaintiff stated she only leaves the home once a week, but cannot drive
herself and must travel with someone else because of the potential of an unexpected blackout. (Tr.
Plaintiff asserted she was able to pay bills and count change but could not handle a savings
account or use a checkbook or money orders because she had “problems controlling funds, [does not]
remember to pay bills, or [gets] confused on what bills should be paid” Plaintiff attributed her
confusion and inability to remember to headaches caused by her shoulder and neck pains. (Tr.
Plaintiff asserted she was much more active before her disability, including playing sports
with her children, swimming, walking, jogging, kickboxing, and cleaning the house. However,
Plaintiff stated she is now capable only of watching television, solving word searches, and drawing
with her son. Plaintiff claimed her family has made her feel useless to them because she is unable
to be as active as she was previously. She is unable to be social or go places with friends since the
onset of her disability. Plaintiff alleged her disability has affected her in lifting, reaching, talking,
hearing, seeing, memory, completing tasks, concentration, understanding, using her hands, and
getting along with others. (Tr. 1032).
Plaintiff further claimed she is only able to walk to her mailbox and back, and some days she
is only able to walk from her recliner to the bathroom. She must rest twenty to thirty minutes before
she can walk again. When asked how long she could pay attention, Plaintiff answered, “Seriously?
It has taken a month to fill this out.” Plaintiff listed the following medication and their side effects:
Neurotin caused tiredness; Klonopin sometimes caused drowsiness; Hydrocodone caused nausea;
and Flector patches caused stomach pains. (Tr. 1034).
On March 14, 2012, Plaintiff was admitted to Atlanta Memorial Hospital and discharged two
days later. Plaintiff had a history of persistent gastritis symptoms, nausea, and vomiting and had
been diagnosed on several prior occasions as positive for Helicobacter pylori. Dr. Swami noted
Plaintiff had shoulder pain which was precipitating her chronic symptoms. Her pain was controlled
with narcotics and her symptoms were comparatively better with food discretion. Plaintiff also had
a history of chronic anxiety and depression, which was treated with Xanax, Paxil, and breathing
exercises. Her blood pressure, electrolytes, white cell count, and iron were all within normal limits
and well controlled. Plaintiff’s abdomen and pelvis had multiple benign hepatic cysts, but were
otherwise normal. Plaintiff was discharged from the hospital in stable condition. Dr. Swami
diagnosed Plaintiff on discharge with acute chronic gastritis, Helicobacter pylori, dehydration,
chronic anxiety, hypothyroidism, and chronic shoulder pain (Tr. 3224). Plaintiff’s radiology
diagnosis noted abdominal pain and gastrointestinal bleeding (Tr. 2235).
Plaintiff was admitted to Christus St. Michael Health System on April 12, 2012. She was
seen by Dr. Patel who performed a physical examination and took an x-ray of her abdomen.
Plaintiff’s physical examination was normal; Dr. Patel noted Plaintiff grimaced during the abdomen
exam, but there was no rebound tenderness, her stomach was soft, and her bowel sounds were active.
There were no signs of acute joint inflammation. The x-ray of Plaintiff’s abdomen suggested
possible mild ileus versus enteritis, but her basic metabolic panel was normal and the gallbladder
ultrasound was negative. Dr. Patel noted Plaintiff’s nausea, vomiting, diarrhea, and abdominal pain
appeared to be “out of proportion to the findings” (Tr. 2419).
Plaintiff visited Dr. Schuyler on May 31, 2012 after being referred by the Texas Disability
Determination Services for a clinical interview with mental status exam, and an assessment of
adaptive functioning. Plaintiff’s chief complaints were depression and a history of physical health
issues. She had no prior or current substance abuse. Dr. Schuyler noted Plaintiff’s ability to
complete tasks remained intact, she could deal with a reasonable amount of routine stress, and there
was no history of Plaintiff’s mental health issues adversely impacting her occupational functioning.
Plaintiff stated she grew up witnessing her stepfather physically abusing her mother. She
previously suffered from situational depression after her son was sexually assaulted. She could
manage basic self-care needs, but she also alleged she becomes worn out easily. She requires
assistance from her son with all household chores and her husband does the grocery shopping.
However, Plaintiff stated her relationship with her husband is strained because he is not supportive
of her physical or mental health problems and they do not communicate. She possesses good
budgeting skills but her husband manages the family finances. She has no personal source of income
and her husband supports the family. Plaintiff stated she has two close friends and is also close to
her mother; but she is no longer able to go out socially on a regular basis like she had been before
the onset of disability. (Tr. 2579).
Dr. Schuyler noted Plaintiff had good eye contact, good ability to relate information in a
concise manner with clear thought processes, and no indication of perceptual abnormalities.
Plaintiff’s mood was dysphoric (i.e. uneasy or dissatisfied) and Dr. Schuyler noted she seemed
irritable (Tr. 2579-2580). She was oriented to person, place, time, and situation and could recall
seven digits forward and four digits backwards immediately. She knew her date of birth, address and
telephone number and stated President Bush and President Carter were recent presidents. Plaintiff
was able to adequately name a current event, but when asked to name five large cities, she replied
“New York, Chicago, California, Virginia, North Carolina” (Tr. 2580). Plaintiff displayed adequate
calculation, abstract thinking, and judgment and Dr. Schuyler estimated her IQ to be in the average
range. Dr. Schuyler diagnosed Plaintiff with chronic adjustment disorder with mixed anxiety and
depressed mood. He assessed her current Global Assessment of Functioning (GAF) as a sixty and
her highest GAF Past Year as a seventy. She was capable of managing personal finances. Dr.
Schuyler’s prognosis of Plaintiff was good, stating, “While this patient may or may not suffer
somatic problems that impede or preclude occupational functioning, from a psychological
perspective, she appears to maintain the ability to reason, and make personal, social, and
occupational adjustments” (Tr. 2581).
Plaintiff was admitted to Christus St. Michael Health System on June 19, 2012 and was
discharged on June 25, 2012. Plaintiff’s diagnoses on admittance were: acute recurrent irritable
bowel syndrome/spastic colon; acute on chronic gastroparesis secondary to irritable bowel syndrome
(IBS); acute on chronic pain syndrome; hematochezia; migraine headaches; paroxysmal atrial
fibrillation; normocytic normochromic anemia; and a history of Helicobacter pylori and Clostridium
difficile. (Tr. 2715). On discharge, her diagnoses were: severe irritable bowel syndrome with
constipation component; migraine headaches (improved); acute on chronic pain syndrome (stable);
normocytic normochromic anemia (stable); a history of Helicobacter pylori and Clostridium difficile
colitis; polypharmacy; and uterine complex cyst per pelvic ultrasound (Tr. 2715). Plaintiff had
previously undergone upper endoscopies and colonoscopies with biopsies of the esophagus, stomach,
and colon; these all proved all normal except for a finding of chronic gastritis. Plaintiff’s stool
cultures showed no pathogens, ova or parasites. She also had various other tests including a liver
scan and a ventilation/perfusion scan, which were all within normal limits and unremarkable.
Plaintiff was hemodynamically stable with mild intermittent abdominal cramping on discharge, but
no fevers, chills, or active emesis (Tr. 2716).
On January 8, 2013 Plaintiff went to Dr. Todd Williams for a physical assessment and to
discuss a cyst within her jaw. Dr. Williams found Plaintiff’s cyst was an odontogenic keratocyst of
her mandible, but her dental health was otherwise normal. Dr. Williams found Plaintiff’s physical
examination to be largely normal, noting she could move all of her extremities well with a full range
of motion. Dr. Williams scheduled Plaintiff for a right total temporal mandibular joint (TMJ)
replacement on January 11, 2013 (Tr. 3128-29).
On January 17, 2013, Dr. Dan Nichols, Plaintiff’s treating physician, wrote an email detailing
his experience with Plaintiff. Dr. Nichols noted Plaintiff had been his patient for many years for
back problems and back pain along with general anxiety disorder. He stated Plaintiff was on
multiple medications for several years but did stop all medication at one time. However, she
returned to using her medications after a year’s time when she fell and broke both of her arms. Dr.
Nichols stated Plaintiff had a diagnosis of generalized anxiety disorder and atypical bipolar disorder
She had recently undergone a hysterectomy which caused her to develop atrial fibrillation requiring
cardiac evaluation, but there was no reoccurrence. Dr. Nichols stated Plaintiff sees a cardiologist
in Little Rock and another physician, Dr. Syed, for pain management of her back pain. Plaintiff was
also prescribed Prozac for her generalized anxiety disorder, which she stated was helpful. Plaintiff
recently had oral surgery but Dr. Nichols did not have any records relating to this problem. Dr.
Nichols also mentioned Plaintiff’s numerous admissions into Christus St. Michael Hospital for
vomiting, dehydration, and diarrhea in the last few months and her diagnosis of irritable bowel
syndrome. In conclusion, Dr. Nichols stated he felt Plaintiff was unable to obtain any gainful
employment due to her physical and psychological problems (Tr. 2990-91).
Plaintiff was again admitted to Christus St. Michael Hospital on January 27, 2013 for
persistent vomiting, dehydration, and loose bowel movements. Plaintiff was not responding well to
outpatient therapy for her vomiting (Tr. 3143). Plaintiff was treated with IV fluid therapy and her
overall condition was significantly improved after the medication Reglan was added. After three
days, Plaintiff’s condition was markedly improved and she was discharged with instructions to
maintain a bland diet over the following forty-eight hours (Tr. 3143).
At the video hearing held on March 1, 2013, Plaintiff’s attorney amended the application date
from May 8, 2010 to September 1, 2011, the same as the protective filing date of SSI (Tr. 891, Tr.
899). Plaintiff stated she was born April 8, 1969, making her 42 years old when she filed for
disability. Plaintiff testified she was separated from her husband but they reside in the same
household with their eleven year old son. She has a driver’s license and would drive to pick up
medication or when shopping for necessities. Plaintiff does not have a high school education and
did not complete the eleventh grade. She does not have any vocational training or trade schooling
Plaintiff stated she was not employed and had not held gainful employment since September
1, 2011, nor had she applied for any job. Her last employment was outside sales for a telephone
company in 2006. While the ALJ believed she wrote secretary in her application paperwork,
Plaintiff stated she only did outside sales. Plaintiff described this job, stating she would attend a
meeting every morning and then go out to customer’s homes to assess their bills, upgrade their
internet, upgrade their phone service, and try to sell satellite service for television (Tr. 896).
Plaintiff stated she was not currently receiving any benefits from local, state or the federal
government. She alleged disability due to degenerative disc disease in her lower back, arthrofibrosis
of the right shoulder, neck pain, carpel tunnel, left wrist with plate and screws, depression, anxiety,
and panic attacks (Tr. 896).
Plaintiff testified the main issues preventing her from work included the medication she had
to take and fear of passing out. Plaintiff also alleged she was suffering from abdominal pain,
gastritis, nausea, and vomiting, but none of these were caused by her medications. However, her
medication caused drowsiness and blurred vision, causing her to have to lay down and rest every day.
Plaintiff also testified she was given a Flector patch on her left wrist because she was unable to take
certain oral medication due to her stomach problems (Tr. 898-899).
Plaintiff wears the Flector patch underneath a brace on her left wrist because of her carpel
tunnel syndrome. She had a plate and screws inserted into her left wrist and arm in surgery after
being thrown from the horse. She stated she still has no sensation in her thumb and she is unable
to grasp or hold many objects, such as a cup of coffee (Tr. 900).
Plaintiff complained she also suffers from carpel tunnel syndrome in her left hand and arm
which she cannot treat properly because of the plate and screws. This resulted in a lot of pain,
particularly in cold or rainy weather. Plaintiff testified she has a wrap to keep her hand warm but
she still suffers from numbness and a lack of rotation in her wrist (Tr. 901).
Plaintiff also claimed she dislocated her right shoulder and has several fractures in this
shoulder. These injuries have prevented her from having a full range of motion in her shoulder and
render her unable to lift her right arm and shoulder above her head. Plaintiff claimed she is unable
to lift or hold anything “more than your average purse,” or approximately five pounds (Tr. 902).
In addition to these physical impairments, Plaintiff testified she was diagnosed with a spastic
colon and irritable bowel syndrome. She takes medication for diarrhea and cramping, but she still
must take a bathroom break four to six times within an hour after eating despite her medication.
Plaintiff stated she must still take unscheduled bathroom breaks during a work day even with prior
planning and preparation (Tr. 903).
Plaintiff also stated she has been on medication since she was twelve years old for atrial
fibrillation. Her medication does not always help with her heart problems and she was in the ICU
in August of 2012 when her heart rate went to approximately 176 with an arrhythmia. The
medication causes her blood pressure to become too low and she must check it several times a day.
If it goes too low, she must take additional medication. This happens at least once a week. (Tr.
According to Plaintiff, these impairments cause her to suffer from depression, anxiety, and
panic attacks. She takes medication for these conditions but it does not completely keep her
depression and anxiety under control. She is self-conscious of her impairments, and this selfconsciousness affects her ability to socialize with others (Tr. 905).
Plaintiff also alleged multiple infections and cyst issues with her jaw which she has had to
deal with over the years. Plaintiff stated she has a recurrent cyst which causes her to become
dehydrated. She was on a soft food diet at the time of the hearing in order to prepare for her surgery,
and it would take about three to four months to recover. (Tr. 906).
Plaintiff was still able to do the laundry for her household, but could not cook except with
a microwave. Furthermore, her son must sweep, mop, and vacuum the house because she could not.
Plaintiff is not involved in any activities outside of her household, but mostly sleeps or lies down.
She stated she is going to the doctor more than anything (Tr. 908).
The ALJ began his examination by stating Plaintiff had reported earlier she was living
independently with two children, was in a relationship, had friends, attended church, was able to do
routine household chores, and handle her personal hygiene. He also noted Plaintiff earlier stated she
went to Walmart for necessities but later claimed she was unable to go shopping. In response,
Plaintiff explained she was unable to carry heavy groceries to her car or into the household. While
there was a lack of medical records for her carpel tunnel syndrome compared to her other medical
records, Plaintiff stated she was unable to continue having surgery on her arms because she could
not afford it. (Tr. 909).
The vocational expert described Plaintiff’s previous employment as an outside sales person
as being semi-skilled, SVP 4, and light in exertional requirements. The ALJ then posed a
hypothetical question about whether a person who was the Plaintiff’s age, with a limited education
of tenth grade, with the past work experience the Vocational Expert just described, and who was
capable of the full range of light work, could perform the Plaintiff’s past relevant work. The
vocational expert answered if the person was capable of a full range of light work, then the person
would be capable of performing work as an outside sales person. (Tr. 911).
Plaintiff’s counsel asked the vocational expert to hypothetically accept the Plaintiff’s
testimony and assume she would need fifteen minutes of every hour for an unscheduled break.
Plaintiff’s attorney asked what impact or affect this would have on Plaintiff’s ability to maintain
employment as an outside sales person or any other employment. The vocational expert responded
the amount of breaks suggesting, amounting to roughly twenty five percent of the work days, was
too excessive and would preclude someone from maintaining competitive employment (Tr. 912).
Plaintiff’s counsel furthered the hypothetical and asked if these conditions were causing
absenteeism two or more days of the month on a continuing basis, how would these conditions affect
a job as an outside sales person or any other work. The Vocational Expert stated it would have the
same impact, and it would be impossible to maintain competitive employment. (Tr. 912-913).
ADMINISTRATIVE LAW JUDGE’S FINDINGS
The ALJ made the following findings:
Plaintiff has not engaged in substantial gainful activity since September 1, 2011, the
application date and amended alleged onset date.
Plaintiff had the following severe impairments: lumbar degenerative disc disease,
irritable bowel syndrome, and chronic anemia.
Plaintiff does not have an impairment or combination of impairments that met or
medically equaled the severity of one of the listed impairments.
After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform the full range of light work.
The claimant is capable of performing past relevant work as an outside sales, light,
SVP4 DOT #270.357-034. This work does not require the performance of workrelated activities precluded by the claimant’s residual functional capacity.
The claimant has not been under a disability, as defined in the Social Security Act,
since September 1, 2011, the date the application was filed.
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), and conflicts in the evidence
are resolved by the Commissioner, Carry v. Heckler, 750 F.2d 479, 482 (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 F.2d
at 393. In determining a claimant’s capability to perform “substantial gainful activity,” a five-step
“sequential evaluation” is used, as described below. 20 C.F.R. § 404.1520(a)(4).
SEQUENTIAL EVALUATION PROCESS
Pursuant to the statutory provisions governing disability determinations, the Commissioner
has promulgated regulations establishing a five-step process to determine whether a claimant suffers
from a disability. 20 C.F.R. § 404.1520(a) `(2011). 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) (2011).
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)
(2011). 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 (2011).
20 C.F.R. § 404.1520(d) (2011). Fourth, a claimant with a severe impairment which does not
correspond to a listed impairment is not considered disabled if he is capable of performing his past
work. 20 C.F.R. § 404.1520(e) (2011). Finally, 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. § 404.1520(f) (2011).
Plaintiff raises the following issues on appeal: (1) the ALJ failed to properly assess Plaintiff’s
irritable bowel syndrome, inflammatory bowel disease, gastritis, gastrointestinal bleeds, and
hemorrhage of the gastrointestinal tract in accordance with Listing 5.06; (2) the ALJ failed to
consider the combination of Plaintiff’s impairments as a whole, isolating each impairment; and (3)
the ALJ erred in assessing Plaintiff’s RFC without giving weight to the treating physician’s opinion
and the combination of Plaintiff’s impairments as a whole, and therefore the decision is not
supported by substantial evidence.
1. Assessment of Gastrointestinal Symptoms
Plaintiff first argues the ALJ erred at Step Three of the sequential evaluation by failing to find
she meets the criteria of a listing. The Supreme Court has explained as follows:
The listings set out at 20 C.F.R. part 404, subpart P, appendix 1 are descriptions of
various physical and mental illnesses and abnormalities, most of which are
categorized by the body system they affect. Each impairment is defined in terms of
several specific medical signs, symptoms, or laboratory test results. For a claimant
to show that his impairment matches a listing, it must meet all of the specified
medical criteria. An impairment that manifests only some of those criteria, no matter
how severely, does not qualify.
Sullivan v. Zebley, 493 U.S. 521, 530, 110 S.Ct. 885, 107 L.Ed.2d 967 (1990).
The specified medical criteria are designed to be demanding and stringent because they lead
to a presumption of disability, making further inquiry unnecessary. Id. at 532; Falco v. Shalala, 27
F.3d 160, 162 (5th Cir. 1994). The claimant has the burden of proving her impairments meet or
equal the criteria of the Listings. Selders v. Sullivan, 914 F.2d 614, 619 (5th Cir. 1990). If the
claimant fails to meet this burden, the court will find substantial evidence supports the ALJ’s
finding. Henson v. Barnhart, 373 F.Supp.2d 674, 685 (E.D.Tex. 2005), citing Selders, 914 F.2d at
620. In order to meet the listing requirements, all of the listing criteria, including any diagnostic
description in the listing’s introductory paragraph, must be satisfied. Zebley, 493 U.S. at 530;
Randall v. Astrue, 570 F.3d 651, 659 (5th Cir. 2009). An impairment meeting only some of the
criteria, no matter how severely, does not qualify, and an impairment cannot meet a listing based
only on a diagnosis. 20 C.F.R. §404.1525(d).
Plaintiff argues her condition meets the criteria of Listing 5.06. This listing covers:
Inflammatory bowel disease (IBD) documented by endoscopy, biopsy, appropriate medically
acceptable imaging, or operative findings with:
Obstruction of stenotic areas (not adhesions) in the small intestine or colon with
proximal dilatation, confirmed by appropriate medically acceptable imaging or in
surgery, requiring hospitalization for intestinal decompression or for surgery, and
occurring on at least two occasions at least 60 days apart within a consecutive
Two of the following despite continuing treatment as prescribed and occurring within
the same consecutive 6–month period:
Anemia with hemoglobin of less than 10.0 g/dL, present on at least
two evaluations at least 60 days apart; or
Serum albumin of 3.0 g/dL or less, present on at least two evaluations
at least 60 days apart; or
Clinically documented tender abdominal mass palpable on physical
examination with abdominal pain or cramping that is not completely
controlled by prescribed narcotic medication, present on at least two
evaluations at least 60 days apart; or
Perineal disease with a draining abscess or fistula, with pain that is
not completely controlled by prescribed narcotic medication, present
on at least two evaluations at least 60 days apart; or
Involuntary weight loss of at least 10 percent from baseline, as
computed in pounds, kilograms, or BMI, present on at least two
evaluations at least 60 days apart; or
Need for supplemental daily enteral nutrition via a gastrostomy or
daily parenteral nutrition via a central venous catheter.
20 C.F.R. pt. 404, subpart P, app. 1, §5.06; see Singleton v. Colvin, civil action no. 3:12cv821, 2013
WL 1562867 (N.D.Tex., April 15, 2013).
Plaintiff sets out the requirements of Listing 5.06 and states she has been admitted to the
hospital numerous times for chronic diarrhea and intractable vomiting. Dr. Nichols observed
multiple problems including chronic anxiety disorder, IBS, atrial fibrillation, severe back pain,
depression, and severe cyst formation in her right mandible. When admitted to the hospital on June
19, 2012, she was diagnosed with acute recurrent IBS, acute on chronic gastroparesis secondary to
IBS, acute on chronic pain syndrome, hematochezia (bright red blood in the stool), migraine
headaches, paroxysmal atrial fibrillation, normocytic normochromic anemia, and a history of
H.pylori and clostridium diificile. Her discharge diagnoses included IBS, migraine headaches
(improved), acute on chronic pain syndrome (stable), normocytic normochromic anemia (stable), a
history of H.pylori and clostridium diificile, and polypharmacy.
Although Plaintiff discusses her diagnoses at length, she has not met her burden of proof to
show she meets all of the criteria of Listing 5.06. She does not show she suffered obstruction of the
stenotic areas of the small intestine or the colon requiring hospitalization for intestinal
decompression or for surgery, as required by Listing 5.06(A), nor does she identify which two of the
six criteria of Listing 5.06(B) she claims to have met during the relevant time period, much less
present medical evidence to support such an assertion.
Dr, Nichols’ letter, cited in Plaintiff’s brief, does not show Plaintiff meets all the criteria of
Listing 5.06. The medical records dated after the ALJ’s February 6, 2013 decision do not meet the
criteria of the Listing at all, much less show she met these criteria during the relevant period. See
Ferrari v. Astrue, 435 F.App’x 314, 2010 WL 7114189 (5th Cir., June 3, 2010), citing Haywood v.
Sullivan, 888 F.2d 1463, 1471-72 (5th Cir. 1989) (to be material, new evidence must relate to the
time period for which benefits were denied and not concern evidence of the subsequent deterioration
of a previously non-disabling condition). Nor does Plaintiff’s testimony show she meets either
subpart of Listing 5.06. She has failed to meet her burden of proof at Step Three of the sequential
Plaintiff further asserts the ALJ ignored many records showing her ongoing problems with
IBS and failed to offer a sufficient reason for discrediting the opinion of Dr. Nichols, the treating
physician. Instead, Plaintiff states the ALJ simply held Dr. Nichols’ opinion was afforded little
weight because the issue of disability is reserved to the Commissioner and Dr. Nichols “admitted
that some of the claimant’s conditions was [sic] either helped with medication or was not a common
occurrence.” (Tr. 880). Plaintiff argues this is not a sufficient reason for discrediting Dr. Nichols’
opinion, contending the ALJ failed to cite Stone or apply the correct standard of severity.
While Plaintiff claims the ALJ failed to cite Stone, this is incorrect. The ALJ referred to the
Stone standard on page 3 of the opinion (Tr. 873) and later stated “all impairments have been
considered under the standard set forth in Stone” (Tr. 877). Plaintiff has not shown the ALJ applied
an incorrect standard of severity. Her first ground for relief is without merit.
2. Failure to Consider Impairments as a Whole
Plaintiff asserts she became disabled on September 1, 2011, as a result of a number of severe
impairments, but the ALJ found only three: lumbar degenerative disc disease, irritable bowel
syndrome, and chronic anemia. The ALJ considered some of her physical impairments being nonsevere and concluded her mental impairments were mild and therefore also not severe. Plaintiff
received two psychological evaluations at the request of DDS and also saw Dr. Rafael Otero for
complaints of depression, anxiety, and panic attacks. Plaintiff acknowledges she is not disabled
solely because of her mental impairments but argues her medical condition as a whole contributes
to her mental deterioration.
Plaintiff states the ALJ found her atrial fibrillation, migraines, hypotention, right shoulder
fracture, left wrist fracture, carpal tunnel syndrome, and irritable bowel syndrome were not severe.
She had right mandible joint replacement surgery two days after the hearing and these records were
furnished to the ALJ. Plaintiff further alleges she suffered side effects of her medication related to
irritable bowel syndrome and chronic pain. She testified at the hearing the medication blurred her
vision and caused drowsiness.
Although Plaintiff maintains the ALJ found her irritable bowel syndrome not severe, the ALJ
plainly held this condition amounted to a severe impairment. (Tr. 873). Plaintiff next states the ALJ
concluded her right shoulder fracture, left wrist fracture, and carpal tunnel syndrome were not severe
because they had healed, but maintains this is incorrect.
The ALJ determined Plaintiff suffered a right shoulder fracture in May of 2010 after falling
off a horse. She went to the emergency room in July with a complaint of right shoulder pain,
apparently aggravated by an altercation with her husband. She had limited range of motion with pain
on movement and X-rays showed evidence of prior fracture. She reported stiffness in her shoulder
in October of 2010, but had active and passive range of motion at 90 degrees forward flexion and
90 degrees abduction. X-rays showed a healed fracture with some calcification. Based on this
evidence, the ALJ determined this injury was not severe.
The ALJ found Plaintiff fractured her wrist in her horseback riding accident and underwent
an open reduction and internal fixation. She complained of left wrist discomfort in October of 2010
but was able to make a fist. Her wrist had slight tenderness but no palpation. In March of 2011, her
left hand had normal range of motion. The next month, she again complained of discomfort and
showed positive Tinel and Phalen’s signs. Her X-rays were normal but the doctor ordered a nerve
conduction study, and by December of 2011, she had developed carpal tunnel syndrome secondary
to the left wrist injury. However, she has normal range of motion in her hand, she can make a fist,
and she has normal grip strength. Her wrist fracture has healed. The ALJ determined this injury and
the carpal tunnel syndrome were not severe.
Plaintiff argues the records do not support the ALJ’s findings, pointing to notes from treating
physician Dr. Chris Alkire stating her right shoulder still bothers her and would eventually require
manipulation under anesthesia, there is significant arthrofibrosis of the right shoulder, she can make
a fist but has positive Tinel’s and a positive Phalen’s, and she has pain with forward flexion and
The ALJ’s decision reviewed medical evidence showing Plaintiff had relatively normal
results concerning her wrist and shoulder, including determinations she had active and passive range
of motion at 90 degrees forward flexion and 90 degrees abduction. She was able to make a fist and
had normal grip strength in her left hand. Dr. Alkire noted Plaintiff stated she could make a fist and
her left wrist was doing okay and was usable. To the extent Dr. Alkire’s findings conflict in some
way with the evidence cited by the ALJ, or some other records tend to indicate a greater degree of
loss of function than the ALJ found, the Fifth Circuit has held conflicts in the evidence are for the
Commissioner, not the courts, to resolve. Perez v. Barnhart, 415 F.3d 457, 461 (5th Cir. 2005).
Substantial evidence supports the ALJ’s conclusions in this regard.
Plaintiff next refers to the surgery she had on her jaw. Even aside from the fact this surgery
took place after the hearing and thus was not before the ALJ, Plaintiff has offered nothing suggesting
her jaw surgery or the condition which required this surgery imposed such limitations to as to
amount to a severe impairment or that such impairment could be expected to last for 12 months.
Plaintiff testified as to side effects from her medication, stating these cause drowsiness and
blurred vision, but points to no objective evidence in the record to show these side effects create
additional functional limitations. Her application for disability benefits did not allege disability
based on medication side effects (Tr. 1000).
Nor has Plaintiff shown the ALJ improperly failed to consider the combination of
impairments created by her mental condition, right shoulder, left wrist, carpal tunnel, jaw surgery,
and medication side effects. In making a determination as to disability, the ALJ must analyze both
the disabling effect of each of the claimant’s ailments and the combined effect of all of these
impairments. Fraga v. Bowen, 810 F.2d 1296, 1305 (5th Cir. 1987).
The ALJ’s opinion recognized the Commissioner’s obligation to consider the claimant’s
severe and non-severe impairments in combination. In discussing the sequential evaluation process,
the ALJ stated “at step two, the undersigned must determine whether the claimant has a medically
determinable impairment that is ‘severe’ or a combination of impairments that is ‘severe.’” At Step
Three, the ALJ is required to determine whether the claimant’s impairments or combination of
impairments is severe enough to meet or medically equal the criteria of a listing. (Tr. 872).
The ALJ further stated before considering Step Four, the claimant’s residual functional
capacity must be determined. The residual functional capacity is the claimant’s ability to perform
physical and mental work activities on a sustained basis despite limitations from her impairments;
in making this finding, the ALJ must consider all of the claimant’s impairments, including those
which are not severe. (Tr. 872).
The ALJ discussed Plaintiff’s mental limitations, her history of migraine headaches, a period
of time in which she was dependent upon pain medication, the injuries to her shoulder and wrist, her
positive test for signs of carpal tunnel syndrome, and her episodes of atrial fibrillation, irregular
menses, and hypotension. The ALJ stated “all impairments have been considered under the standard
set forth in Stone v. Heckler, 752 F.2d 1099 (5th Cir. 1985)” and concluded “the claimant does not
have an impairment or combination of impairments that meets or medically equals the severity of
one of the listed impairments in 20 CFR part 404, Subpart P, Appendix 1.” (Tr. 877).
Plaintiff has not met her burden of showing the ALJ failed to consider her impairments in
combination. In Roberson v. Astrue, 471 F.App’x 314, 2012 WL 1994476 (5th Cir., Jnue 1, 2012),
the petitioner complained the ALJ overestimated her residual functional capacity and failed to
consider her impairments in combination. The Fifth Circuit stated “the ALJ’s decision reflects that
she did consider Ms. Roberson’s impairments in combination.
The decision references
‘impairments’ in several places. It also includes a thorough discussion of Ms. Roberson’s medical
history and the symptoms of both her back and vision problems.” Id. at *1.
Similarly, the ALJ here discussed Plaintiff’s medical history at some length and stated all
impairments have been considered under the standard set forth in Stone v. Heckler. The Fifth Circuit
has held a specific statement from the ALJ showing the ALJ has considered the impairments singly
or in combination is sufficient to affirm the ALJ’s decision when a review of the evidence shows
substantial evidence to support the ALJ’s decision. Owens v. Heckler, 770 F.2d 1276, 1282 (5th Cir.
1985). As in Owens, the ALJ determined Plaintiff’s impairments, singly or in combination, did not
meet or medically equal the severity of one of the listed impairments.
This determination is
supported by substantial evidence.
Plaintiff argues the ALJ must follow the Social Security Regulation guidelines to determine
whether controlling weight should be given to the medical opinions of a treating source. Under these
guidelines, the opinion must come from a treating source, the opinion must be a medical opinion,
the opinion must be well supported by medically acceptable clinical and laboratory techniques, and
the opinion must not be inconsistent with other substantial evidence. Plaintiff acknowledges the ALJ
is free to reject the opinion of a physician when the evidence supports a contrary conclusion, but
states treating source medical opinions are still entitled to deference and must be weighed using all
of the factors provided in 20 C.F.R. §404.1527 and 416.927.
If medical evidence supports a treating physician’s opinion about the existence of a disability,
Plaintiff argues this opinion is binding on the fact finder unless contradicted by substantial evidence
to the contrary. In this case, Plaintiff states her treating physician, Dr. Nichols, found her disabled.
She asserts Dr. Nichols’ assessment included objective findings and addressed her exertional and
non-exertional impairments. In her brief, Plaintiff quotes Dr. Nichols’ summary of her ailments,
highlighting the doctor’s statement “I do feel that this patient is unable to obtain any gainful
employment due to her multiple problems, both physical and psychological,” and asserts the treating
physician’s opinion was entitled to controlling weight.
Although Dr. Nichols was a treating physician, his belief Plaintiff could not obtain gainful
employment was not a medical opinion but rather an opinion on an issue reserved to the
Commissioner. 20 C.F.R. §404.1527(d) states medical source opinions on issues reserved to the
Commissioner, including an opinion as to whether a claimant is disabled, receive no special
significance. The statute provides “a statement by a medical source that you are ‘disabled’ or
‘unable to work’ does not mean that we will determine that you are disabled.” As such, Dr. Nichols’
statement Plaintiff would be unable to obtain gainful employment receives no special significance.
Plaintiff’s assertion this opinion is entitled to controlling weight is without merit.
3. Error in the Residual Functional Capacity Assessment
Plaintiff contends residual functional capacity is defined wholly in terms of the physical
ability to perform certain tasks. If a claimant has a non-exertional impairment, the MedicalVocational Guidelines and grid are not controlling and cannot be used to direct a conclusion of
disabled or not disabled without regard to other evidence such as vocational testimony. An ALJ may
rely exclusively on the Medical-Vocational Guidelines even where a claimant has non-exertional
impairments if the ALJ concludes the non-exertional impairments do not significantly diminish the
claimant’s residual functional capacity to perform the full range of activities listed in the Guidelines.
Plaintiff states in other words, the Guidelines may direct a conclusion of disabled or not
disabled if the ALJ determines the claimant’s non-exertional limitations do not significantly affect
the RFC. In her case, she states her non-exertional limitations do significantly affect her RFC. The
ALJ did not rely solely on the Medical-Vocational Guidelines, but obtained evidence from a
vocational expert. See Fraga, 810 F.2d at 1304 (if claimant has only exertional impairments or nonexertional impairments which do not significantly affect his RFC, the ALJ may rely exclusively on
the Medical-Vocational Guidelines to determine whether there is other work the claimant may
perform; otherwise, the ALJ must rely on expert vocational testimony or other similar evidence to
establish the existence of such jobs).
Plaintiff argues Dr. Nichols’ assessment supports her claim of disability, but the ALJ found
her capable of performing the full range of light work. She states the ALJ knew she had limited
range of motion in her right arm, muscle spasms and tenderness in her right shoulder, right rotator
cuff syndrome, and positive Tinel’s and Phalen’s signs in her left wrist. Plaintiff testified she cannot
lift with her left hand, has no feeling in her left thumb, lacks full rotation in her right arm, and cannot
lift her right arm because of her limited mobility. However, Plaintiff asserts the ALJ gave no
consideration to these limitations in assessing her RFC or in questioning the vocational expert.
The ALJ’s decision discussed Plaintiff’s medical history, including her range of motion,
muscle spasms, rotator cuff syndrome, positive Tinel’s and Phalen’s signs, and carpal tunnel
syndrome. While Plaintiff testified as to her symptoms, the ALJ determined Plaintiff’s statements
concerning the intensity, persistence, and limiting effects of these symptoms was not entirely
credible because the medical records did not provide a basis to support the level of severity alleged.
The ALJ also cited Plaintiff’s activities of daily living, including the fact she could tend to most of
her grooming needs independently, she could drive short distances, prepare simple meals, perform
light household chores, and shop. See Leggett v. Chater, 67 F.3d 558, 565 (5th Cir. 1995). The ALJ
thus considered all of the functional limitations which he found supported by the evidence.
Similarly, Plaintiff complains the ALJ’s hypothetical questions to the vocational expert did
not include all of the limitations she claimed. She notes Dr. Otero stated “she began to experience
symptoms of depression and anxiety. She reports that she currently cannot sleep over four hours per
night, is having crying spells, is constantly tired, has considerable free-floating anxiety and worries
about her future.” (Tr. 2578). The quoted statement is not a medical opinion or a diagnostic
impression but a recounting of Plaintiff’s subjective complaints as told to the doctor.
A hypothetical question posed by the ALJ need incorporate only those claimed disabilities
supported by the evidence and recognized by the ALJ. Masterson v. Barnhart, 309 F.3d 267, 274
(5th Cir. 2002). The hypothetical questions posed by the ALJ met this standard and the Plaintiff has
failed to show the ALJ erred by not incorporating other limitations into these questions. Her third
ground for relief is without merit.
“The Commissioner’s decision is granted great deference and will not be disturbed unless
the reviewing court cannot find substantial evidence in the record to support the Commissioner’s
decision or finds that the Commissioner made an error of law.” Legget v. Chater, 67 F.3d 558, 56566 (5th Cir. 1995). Having reviewed the record, this Court finds the record demonstrates the
Administration correctly applied the applicable legal standards and that substantial evidence supports
the Administration’s determination that Plaintiff is not disabled. Accordingly, it is
ORDERED the above-entitled Social Security action is AFFIRMED and this civil action
is DISMISSED WITH PREJUDICE.
SIGNED this 5th day of October, 2015.
CAROLINE M. CRAVEN
UNITED STATES MAGISTRATE JUDGE
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