Abraham v. Commissioner of Social Security

Filing 23

MEMORANDUM OPINION AND ORDER. The Commissioner's final decision is hereby REVERSED and REMANDED with instructions for further consideration consistentwith the opinion herein. Signed by Magistrate Judge Judith K. Guthrie on 08/05/13. (mll, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
SHIRLEY ABRAHAM

§

v.

§

COMMISSIONER, SOCIAL SECURITY
ADMINISTRATION

§

CIVIL ACTION NO. 6:11-CV-610

MEMORANDUM OPINION AND ORDER
On November 11, 2011, Plaintiff initiated this civil action pursuant to the Social Security Act
(The Act), Section 205(g) for judicial review of the Commissioner’s denial of Plaintiff’s application
for Social Security benefits.

Pursuant to 28 U.S.C. § 636(c), the case was assigned to the

undersigned for disposition.
I.

HISTORY
On November 14, 2007, Plaintiff filed a Title XVI application for supplemental security

income benefits. See Transcript (“Tr.”) at 15 (Administrative Law Judge (“ALJ”) decision). She
alleged disability beginning on December 1, 2003. Id. The claim was denied initially on March 25,
2008, and upon reconsideration on June 28, 2008. Id. Plaintiff sought review of the denial. An
administrative hearing was conducted before the ALJ on November 21, 2008. Id. at 15, 24-43
(hearing transcript). Plaintiff appeared and testified, represented by counsel.

Id.

In addition,

impartial vocational expert witness Wendy P. Klamm also testified. Id.
The ALJ issued an unfavorable decision on July 2, 2009, id. at 12-23, and Plaintiff sought
review. On August 5, 2011, the Appeals Council denied review. Tr. at 5. Therefore, the ALJ’s

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decision became the Commissioner’s final decision. See Sims v. Apfel, 530 U.S. 103, 106-07, 120
S. Ct. 2080, 147 L. Ed. 2d 80 (2000). Plaintiff then filed the instant action for review by this Court.
II.

STANDARD
Title XVI of the Act provides for supplemental security income for the disabled. Judicial

review of the denial of disability benefits under section 205(g) of the Act, 42, U.S.C. § 405(g), is
limited to “determining whether the decision is supported by substantial evidence in the record and
whether the proper legal standards were used in evaluating the evidence.” Bowling v. Shalala, 36
F.3d 431, 435 (5th Cir. 1994) (quoting Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990)); Muse
v. Sullivan, 925 F.2d 785, 789 (5th Cir. 1991) (per curiam). A finding of no substantial evidence is
appropriate only where there is a conspicuous absence of credible choices or no contrary medical
evidence. Johnson v. Bowen, 864 F.2d 340, 343-44 (5th Cir. 1988) (citing Hames v. Heckler, 707
F.2d 162, 164 (5th Cir. 1983)). Accordingly, the Court “may not reweigh the evidence in the record,
nor try the issues de novo, nor substitute [the Court’s] judgment for the [Commissioner]’s, even if
the evidence preponderates against the [Commissioner]’s decision.” Bowling, 36 F.3d at 435
(quoting Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir. 1988)); see Spellman v. Shalala, 1 F.3d 357,
360 (5th Cir. 1993); Anthony v. Sullivan, 954 F.2d 289, 295 (5th Cir. 1992); Cook v. Heckler, 750
F.2d 391, 392 (5th Cir. 1985). Rather, conflicts in the evidence are for the Commissioner to decide.
Spellman, 1 F.3d 357, 360 (5th Cir. 1993) (citing Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir.
1990)); Anthony, 954 F.2d 289, 295 (5th Cir. 1992) (citing Patton v. Schweiker, 697 F.2d 590, 592
(5th Cir. 1983)). A decision on the ultimate issue of whether a claimant is disabled, as defined in
the Act, rests with the Commissioner. Newton v. Apfel, 209 F.3d 448, 455-56 (5th Cir. 2000); Social
Security Ruling (“SSR”) 96-5p.
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“Substantial evidence is more than a scintilla but less than a preponderance – that is, enough
that a reasonable mind would judge it sufficient to support the decision.” Pena v. Astrue, 271
Fed.Appx. 382, 383 (5th Cir.2003) (citing Falco v. Shalala, 27 F.3d 160, 162 (5th Cir.1994)).
Substantial evidence includes four factors: (1) objective medical facts or clinical findings; (2)
diagnoses of examining physicians; (3) subjective evidence of pain and disability; and (4) the
plaintiff’s age, education, and work history. Fraga v. Bowen, 810 F.2d 1296, 1302, n.4 (5th Cir.
1987). If supported by substantial evidence, the decision of the Commissioner is conclusive and
must be affirmed. Richardson v. Perales, 402 U.S. 389, 390, 91 S. Ct. 1420, 28 L. Ed. 2d 842
(1971). However, the Court must do more than “rubber stamp” the ALJ’s decision; the Court must
“scrutinize the record and take into account whatever fairly detracts from the substantiality of
evidence supporting the [Commissioner]’s findings.” Cook, 750 F.2d 391, 393 (5th Cir. 1985). The
Court may remand for additional evidence if substantial evidence is lacking or “upon a showing that
there is new evidence which is material and that there is good cause for the failure to incorporate
such evidence into the record in a prior proceeding.” 42. U.S.C. § 405(g) (2000); Latham v. Shalala,
36 F.3d 482, 483 (5th Cir. 1994).
A claimant for disability has the burden of proving a disability. Wren v. Sullivan, 925 F.2d
123, 125 (5th Cir. 1991). The Act defines “disability” as an “inability to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment which can
be expected to result in death or which can be expected to last for a continuous period of not less than
12 months.” 42 U.S.C. § 416(i)(1)(A); 42 U.S.C. § 423(d)(1)(A). A “physical or mental impairment”
is an anatomical, physiological, or psychological abnormality which is demonstrable by acceptable
clinical and laboratory diagnostic techniques. 42 U.S.C. § 423(d)(2)(A); 42 U.S.C. § 1382c(a)(3)(B).
3

In order to determine whether a claimant is disabled, the Commissioner must utilize a fivestep, sequential process. Villa, 895 F.2d at 1022. A finding of “disabled” or “not disabled” at any step
of the sequential process ends the inquiry. Id.; see Bowling, 36 F.3d at 435 (citing Harrel, 862 F.2d
at 475).

Under the five-step sequential analysis, the Commissioner must determine at Step One

whether the claimant is currently engaged in substantial gainful activity.

At Step Two, the

Commissioner must determine whether one or more of the claimant’s impairments are severe. At
Step Three, the Commissioner must determine whether the claimant has an impairment or
combination of impairments that meet or equal one of the listings in Appendix I. Prior to moving to
Step Four, the Commissioner must determine the claimant’s Residual Functional Capacity (“RFC”),
or the most that the claimant can do given his impairments, both severe and non-severe. Then, at Step
Four, the Commissioner must determine whether the claimant is capable of performing his past
relevant work. Finally, at Step Five, the Commissioner must determine whether the claimant can
perform other work available in the local or national economy. 20 C.F.R. § 416.920(b)-(f).

An

affirmative answer at Step One or a negative answer at Steps Two, Four, or Five results in a finding
of “not disabled.” See Villa, 895 F.2d at 1022. An affirmative answer at Step Three, or an affirmative
answer at Steps Four and Five, creates a presumption of disability. Id. The burden of proof is on the
claimant for the first four steps, but shifts to the Commissioner at Step Five if the claimant shows that
he cannot perform his past relevant work. Anderson v. Sullivan, 887 F.2d 630, 632-33 (5th Cir. 1989)
(per curiam).
The additional procedure for evaluating a mental impairment is set forth in 20 C.F.R. §
416.920a (the “special technique” for assessing mental impairments, supplementing the five-step
sequential analysis). First, the ALJ must determine the presence or absence of certain medical
4

findings relevant to the ability to work. 20 C.F.R. § 416.920a(b)(1). Second, when the claimant
establishes these medical findings, the ALJ must rate the degree of functional loss resulting from the
impairment by considering four areas of function: (a) activities of daily living; (b) social functioning;
(c) concentration, persistence, or pace; and (d) episodes of decompensation. Id., § 416.920a(c)(2-4).
Third, after rating the degree of loss, the ALJ must determine whether the claimant has a severe
mental impairment. Id., § 416.920a(d). If the ALJ’s assessment is “none” or “mild” in the first three
categories above, and is “none” in the fourth category, the claimant’s mental impairment is “not
severe, unless the evidence otherwise indicates that there is more than a minimal limitation in [the
claimant’s] ability to do basic work activities.” Id., § 416.920a(d)(1).

Fourth, when a mental

impairment is found to be severe, the ALJ must determine if it meets or equals a Listing. Id., §
416.920a(d)(2). Finally, if a Listing is not met, the ALJ must then perform a residual functional
capacity assessment, and the ALJ's decision “must incorporate the pertinent findings and conclusions”
regarding the claimant's mental impairment, including “a specific finding as to the degree of
limitation in each of the functional areas described in [§ 416.920a(c)(3)] .” Id., § 416.920a (d)(3),
(e)(2).
III.

ADMINISTRATIVE LAW JUDGE’S FINDINGS
The ALJ made the following findings in his July 2, 2009, decision:
The claimant has not engaged in substantial gainful activity since November 14, 2007, the
application date (20 C.F.R. § 416.971 et seq.).
The claimant has the following severe impairments: obesity; chronic pain in the lumbar spine;
insulin-dependent diabetes mellitus; dysthymic disorder, late onset; and generalized anxiety
disorder (20 C.F.R. § 416.920(c)).

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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. §§ 416.925 and 416.926).
After careful consideration of the entire record, the undersigned finds that the claimant has
the residual functional capacity to perform light work as defined in 20 C.F.R. § 404.1567(b)
except she can occasionally climb (but never ladders, ropes or scaffolds). She cannot work
around dangerous, moving machinery or at unprotected heights. She has moderate limitations
in the ability to understand, remember, and carry out detailed instructions, maintain attention
and concentration for extended periods, complete a normal workday and workweek without
interruptions from psychologically based symptoms and to perform at a consistent pace
without an unreasonable number and length of rest periods, accept instructions and respond
appropriately to criticism from supervisors, and respond appropriately to changes in the work
setting.
The claimant has no past relevant work (20 C.F.R. § 416.965).
Considering the claimant’s age, education, work experience, and residual functional capacity,
there are jobs that exist in significant numbers in the national economy that the claimant can
perform (20 C.F.R. §§ 416.969 and 416.969a).
The claimant has not been under a disability, as defined in the Social Security Act, since
November 14, 2007, the date the application was filed (20 C.F.R. § 416.920(g)).
Tr. at 17, 18, 20, 22, 23.

The ALJ determined that Plaintiff was not disabled under section

1614(a)(3)(A) of the Social Security Act. Tr. at 23.
IV.

DISCUSSION AND ANALYSIS
Plaintiff alleges that her ability to work is limited by “Type II dibetes, kidney problems, [high

blood pressure].” Tr. at 101 (undated Disability Report - Adult) (amended from all capitals). She
alleges that “My diabetes causes me to get dizzy. I’m afraid I might fall down. My left leg gives out
very easily which causes further problems.” Id. (amended from all capitals.) On or about March
2008, she alleges that her conditions have changed, specifically, “obesity - headaches - feet swell sinus problems - congestion - depression - diabetes - HBP.” Tr. at 130 (undated Disability Report -

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Appeal). She asserts that she has new limitations including “poor vision - teeth bother her.” Id. She
asserts no further changes in a subsequent report. Tr. at 152.
At the administrative hearing, Plaintiff testified that she had not worked since she filed her
disability application and had not tried to do so. Tr. at 26-27. She testified that her diabetes kept her
from working.

Id. at 27.

She further testified that she could perform the representative job of

cafeteria attendant, which was a possibility identified by the vocational expert, “if it’s not a whole lot
of walking.” Id. at 29. She stated her feet and ankles swell and her leg goes numb if she stands up
too long. Id. She feels tingling and itching, related to her diabetes. Id. If she sits down, she testified
she has to keep her feet elevated or they swell. Id. She was equivocal about the values of her blood
sugars, stating “it’s very rarely normal; runs 166 to 2-something, sometime it get up to 3.” Id.
However, she also testified that she tries to eat fruits, vegetables, fish and chicken, but that “when that
runs out I mean, I have to eat what I got, you know.” Id. at 30. She had recently checked her blood
pressure, which read 142 over 90. Id. If she stands more than “[a]bout 15 to 30 minutes,” she feels
sharp pains down her legs and hips, and she has to sit down until “it cools down, and get back up.”
Id. at 31. If she sits more than 15 to 30 minutes, she feels sharp pains up her lower back, so she spend
the day getting up and down. Id. She sleeps all right when she takes her medication, which makes
her sleepy. Id. at 32.
Plaintiff further testified she does not go out much but goes shopping with her cousin, who
does most of the walking. Id. She cares for her mentally retarded son, who cannot talk. Id. She has
problems with balancing and has arthritis in her hands. Id. at 34-35. She has trouble bending and
straightening her fingers. Id. at 35. She also complained of tendinitis in her left hip. Id. She also

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swells up from her diabetes, and sometimes it makes it hard for her to breathe. Id. at 36. Her vision
is blurry sometimes and her eye veers off. Id. at 38. She also has headaches. Id.
She also testified she had been taking antidepressants for “a long time” for anxiety, mood
swings, crying and depression. Id. at 39. She stated she is 5'2" tall and, after some consideration,
testified that she weighs “270-something.” Id. at 40-41.
Plaintiff asserts two issues: (1) the ALJ failed to cite the correct severity standard or provide
evidence that the correct severity standard was used at Step Two, creating legal error that requires
remand (Pltf Brf at 1, 10); (2) the ALJ’s credibility findings were not supported by substantial
evidence (id. at 1, 13).
A.

ALJ’s Credibility Determination

Addressing Plaintiff’s second contention first, she asserts that the ALJ’s determination of her
credibility was not supported by substantial evidence.
The ALJ, as opposed to the Court, is the fact finder and may determine the credibility of
witnesses and medical evidence. Griego v. Sullivan, 940 F.2d 942, 945 (5th Cir. 1991). As the Fifth
Circuit has determined,
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) (per curiam) (internal citations omitted).
It is well settled that pain in and of itself may be disabling. Cook v. Heckler, 750 F.2d 391 (5th Cir.
1985). Not all pain, however, is disabling. Carry v. Heckler, 750 F.2d 479, 485 (5th Cir. 1985). To

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rise to the level of disabling, pain must be “constant, unremitting, and wholly unresponsive to
therapeutic treatment.” Chambliss, 269 F.3d at 522; Falco, 27 F.3d at 163. The ALJ must consider
subjective evidence of pain, but it must be corroborated by objective medical evidence and it is within
the ALJ's discretion to determine the pain’s disabling nature. Wren, 925 F.2d at 128-29; Houston v.
Sullivan, 895 F.2d 1012, 1016 (5th Cir.1989); see also 42 U.S.C. § 423(d)(5)(A) (“An individual’s
statement as to pain or other symptoms shall not alone be conclusive of disability.”).
An ALJ must follow a two-step process in determining the credibility of a plaintiff’s subjective
claims: first, the ALJ must determine whether there is an impairment that reasonably produced the
symptoms of which the plaintiff complains. Salgado v. Astrue, 271 Fed. Appx. 456, 458-59 (5th Cir.
2008) (per curiam) (citing Social Security Ruling (“SSR”) 96-7p, 1996 WL 374186, at *1 (1996)).
Here, the ALJ determined that Plaintiff has the severe impairments of obesity; chronic pain in the
lumbar spine; insulin-dependent diabetes mellitus; dysthymic disorder, late onset; and generalized
anxiety disorder. Tr. at 17.
Second, if such an impairment(s) is identified, the ALJ must then consider the plaintiff’s
statements about symptoms and the remaining evidence in the record to determine the strength of the
symptoms and how they affect the plaintiff’s ability to do basic work. This requires the ALJ to make
a finding of the credibility of the plaintiff’s statements about the symptoms and their functional effects.
Salgado, 271 Fed. Appx. at 459 (citing SSR 96-7p). A non-exclusive list of factors to be considered
in making the second determination include: “(1) the claimant’s daily activities; (2) the location,
duration, frequency, and intensity of pain or other symptoms (3) factors that precipitate and aggravate
symptoms; (4) the type, dosage, effectiveness, and side effects of any medication taken to alleviate
pain or other symptoms; (5) treatment, other than medication, for relief of pain or other symptoms; (6)
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measures other than treatment the claimant uses to relieve pain or other symptoms [ ]; and (7) any
other factors concerning the claimant’s functional limitations and restrictions due to pain or other
symptoms.” Wilson v. Astrue, 2010 WL 1566748, at *10 (N.D. Tex. Mar. 19, 2010) (quoting SSR 967p, 1996 WL 374186, at *3); see also 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3). However, though
an ALJ must give specific reasons for a 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. It suffices when the administrative decision is sufficiently specific to make
clear that the regulatory factors were considered.” Prince v. Barnhart, 418 F. Supp. 2d 863, 871 (E.D.
Tex. 2005).
Here, the ALJ determined that Plaintiff’s “medically determinable impairments could
reasonably be expected to cause the alleged symptoms; however, the claimant’s statements concerning
the intensity, persistence and limiting effects of these symptoms are not credible to the extent they are
inconsistent with the above residual functional capacity assessment.” Tr. at 21.

In making this

statement, the ALJ compared Plaintiff’s written and testimonial descriptions of her symptoms and
limitations to the RFC he had determined and found them not credible to the extent they conflicted
with the RFC. However, the ALJ based his determination of RFC on the reports of the state agency
non-examining physician and psychiatrist who filed reports on her Physical Residual Functional
Capacity Assessment (Randal Reid, M.D., Tr. at 236-43), and Psychiatric Review Technique and
Mental Residual Functional Capacity Assessment (Leela Reddy, M.D., Tr. at 218-31 and 232-34,
respectively). He did review some of the factors listed above, but focused primarily on Plaintiff’s
reported activities of daily living, some aspects of consultative examining physician Dr. Zapata’s
report (Tr. at 206-10), and the non-examining state agency physicians’ reports.

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As noted above, the ALJ’s physical RFC determination was based on Dr. Reid’s nonexamining physician’s Physical RFC Assessment; in turn, that was based in large part on Dr. Zapata’s
consultative examiner’s report and perhaps to some extent on the progress notes from the Gregg
County Health Department, see, e.g., Tr. at 166-205. The ALJ’s determination of Plaintiff’s credibility
also appears to be based largely on the Physical RFC Assessment and portions of Dr. Zapata’s
consultative report.
Plaintiff’s objection to the ALJ’s credibility determination turns on certain subjective evidence
of her physical symptoms and limitations, compared to the physical capabilities portion of the RFC.
For example, Plaintiff testified that she cannot stand or walk very long and that her legs swell and
become numb; she cannot sit very long due to her back pain; she has trouble with manipulation; and
her vision is blurred and affected by an eye that veers. None of those conditions or limitations are
reflected in the ALJ’s determination of RFC. The ALJ addressed some of these points, noting, for
example, that Dr. Zapata measured her bilateral hand grip as normal. Tr. at 21. However, he also
found that she had a “full, bilateral manual dexterity.” Id. at 20. He did not cite objective medical
evidence, nor is there anything in the record to support, this affirmative statement that contradicts
Plaintiff’s testimony of the effect of her arthritic hands.
Dr. Zapata diagnosed Plaintiff with likely impingement syndrome of the left shoulder, Tr. at
210, and specifically found on examination that the range of motion of her left shoulder is “about fifty
percent in all directions and every time she tries to move her left shoulder she kind of makes faces and
states she has pain.” Tr. at 209. He also documented Plaintiff’s difficulty in using her left arm and,
for example, putting her clothes on. Id. at 208. However, Dr. Reid opined, in contradiction to the
examining physician’s testing, that Plaintiff has no manipulative limitations, including the ability to
reach in all directions.

Tr. at 230.

That is wholly aside from any colorable question of manual

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dexterity.

The ALJ did not take Dr. Zapata’s finding into consideration when analyzing Plaintiff’s

subjective evidence of difficulty in manipulation.
The ALJ additionally found that Plaintiff “is capable of walking or standing approximately 6
hours a day, and sitting approximately 2 hours a day. She can also sit most of the time with some
pushing and pulling of arm or leg controls.” Tr. at 20. This finding is apparently based on Dr. Reid’s
opinion that Plaintiff could stand and/or walk a total of about 6 hours in an 8-hour workday; sit about
6 hours in an 8-hour workday; and push and/or pull (including operation of hand and/or foot controls)
without limitation other than as for lift and/or carry (which was found to be 20 pounds occasionally
and 10 pounds frequently). Tr. at 237. However, Dr. Zapata found on examination that there is a
“definite visible swelling in both lower extremities from the both knees down,” making it difficult to
find pulses in both feet. Tr. at 209. He also found she has “very poor balance” and Plaintiff could not
walk on her heels; Dr. Zapata therefore would not let her attempt to walk on toes, in tandem, or squat
down. Id. He reported Plaintiff’s statement that she has “a very difficult time in walking three to four
hundred yards at a normal pace because of the pain in both knees and her lower back radiating to the
left lower extremity.” Tr. at 207-08. Although the latter observation is based on Plaintiff’s selfreporting, Dr. Zapata appears to have given it credence in his report.

None of these findings is

consistent with the ability to stand and walk six hours a day, or to operate foot controls as described.
Both Dr. Reid and the ALJ considered and discounted Plaintiff’s complaints of her vision based
on Dr. Zapata’s visual acuity test revealing that she has uncorrected 20/50 vision bilaterally. See Tr.
at 21, 243. In fact, Dr. Reid opined she has no visual limitations, a position apparently taken by the
ALJ as well. Id. However, Dr. Zapata’s visual acuity finding was based simply on a Snellen eye chart,
not a more sophisticated ophthalmologist’s test, Tr. at 209, and it does not take into account any effect
from the “very obvious left eye divergent strabismus,” or offset eye, that Dr. Zapata documented. Id.

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In fact, he recorded that the divergent strabismus is getting worse and Plaintiff “virtually depends on
her right eye visual field.” Id. at 208.
The ALJ also observed that “[t]he claimant testified that her son is mentally retarded and
cannot speak; therefore, it is reasonable to infer that Ms. Abraham is physically able to perform many
exertional and postural activities.” Tr. at 21. There is no basis for a finding that the ability to help a
family member communicate equates to the ability to perform physical activities.
In sum, the Physical RFC Assessment by Dr. Reid does not appear to have taken all of Dr.
Zapata’s findings into consideration, undermining the ALJ’s reliance on it.
Finally, although this is not dispositive, during the administrative hearing, the ALJ asked a few
precursor questions of Plaintiff, then abruptly examined the testifying vocational expert.

Without

having obtained Plaintiff’s subjective testimony, the ALJ presented the vocational expert with a fully
developed RFC (the same RFC stated by Dr. Reid and that the ALJ included in his written decision).
The RFC included the ability to perform light work with the same postural limitations and mental
limitations as stated in the decision, and asked the vocational expert if there were jobs the Plaintiff
could perform under that RFC. See Tr. at 27-28. The vocational expert responded that representative
jobs such as cafeteria attendant and laundry classifier were available. Id. at 28. It was only after that
testimony that the ALJ took Plaintiff’s subjective testimony of symptoms and limitations; however,
the ALJ did not amend his RFC description in any way after her testimony. Taken in conjunction with
the observations above, that at least presents the appearance that the RFC was established without
considering Plaintiff’s testimony.

Taken alone, that point is not sufficient to warrant remand.

However, there are sufficient issues outlined above to inform the conclusion that Dr. Reid’s Physical
RFC Assessment, on which the ALJ based his determination, did not fully take Dr. Zapata’s clinical

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findings into account.

Therefore, the credibility analysis built thereon falls short and does not

constitute a determination supported by substantial evidence.1
For that reason, the Court will reverse the Commissioner’s final decision and remand for
further consideration of Plaintiff’s credibility.
B.

The ALJ’s Step Two Determination

Because of the findings above, it is not necessary to determine whether the ALJ properly
assessed the severity of all of Plaintiff’s impairments.
It is accordingly
ORDERED that the Commissioner’s final decision is hereby REVERSED and REMANDED
pursuant to sentence four of 42 U.S.C. § 405(g) with instructions for further consideration consistent
with the opinion herein.
So ORDERED and SIGNED this 5

day of August, 2013.

____________________________
JUDITH K. GUTHRIE
UNITED STATES MAGISTRATE JUDGE

1

Further, both jobs identified by the vocational expert require frequent reaching and
light level work, which may require lengthy standing or walking or operation of foot controls. See
DICOT 361.687-014, 1991 WL 672991 (G.P.O.) (Classifier) and DICOT 311.677-010, 1991 WL
672694 (G.P.O.) (Cafeteria Attendant). Absent a more-considered determination of Plaintiff’s
credibility and her subjective evidence, it is not apparent that she has the ability to perform one or
more of these activities.
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