Risinger v. Astrue

Filing 24

MEMORANDUM OPINION AND ORDER. The decision of the Commissioner is hereby REVERSED and REMANDED with instructions for further consideration consistentwith the findings herein. Signed by Magistrate Judge John D. Love on 09/25/14. (mll, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
KIMBERLY RISINGER

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v.

§

COMMISSIONER, SOCIAL SECURITY
ADMINISTRATION

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CIVIL ACTION NO. 6:12CV885

MEMORANDUM OPINION AND ORDER
On November 19, 2012, 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), and the consent of both parties, the case
was assigned to the undersigned for disposition.
I.

HISTORY
On July 16, 2009, Plaintiff filed for disability insurance benefits under Title II of the Social

Security Act (the Act), and shortly thereafter, on July 29, 2009, filed for supplemental security income
under Title XVI of the Act. See Transcript (“Tr.”) at 111 (Administrative Law Judge (ALJ) decision).
In her applications, Plaintiff alleged disability beginning October 31, 2008. Id. Plaintiff’s claims were
initially denied on February 11, 2010, and upon reconsideration on April 20, 2010. Id. Plaintiff’s
request for an administrative hearing was granted, and the hearing was held on September 7, 2010, in
Dallas, Texas, before Administrative Law Judge Arthur Shultz. See Tr. at 124-57. Plaintiff appeared
with representation and testified as to her medical issues and impairments. Id. Vocational expert, Joyce
Shoop, also appeared and testified and medical expert, Dr. Alec Steele, testified via telephone. Id.
The ALJ issued an unfavorable decision on October 4, 2010. Plaintiff sought review. On
March 13, 2012, the Appeals Council denied review. See Tr. at 1. On March 29, 2012, Ken Popkess,
1

Plaintiff’s attorney, requested reopening of the denial of review because he did not receive a copy of
the audio recording for review. Further, Plaintiff submitted additional medical records to the Appeals
Council. See Tr. at 90. On October 2, 2012, the Appeals Council denied Plaintiff’s request to reopen
the denial of review based on receipt of new evidence. See Tr. at 1-2. Therefore, the ALJ’s 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 II of the Act provides for federal disability insurance benefits. Title XVI of the Act

provides for supplemental security income for the disabled. The relevant law and regulations governing
the determination of disability under a claim for disability insurance benefits are identical to those
governing the determination under a claim for supplemental security income. See Davis v. Heckler,
759 F.2d 432, 435, n.1 (5th Cir. 1985); Rivers v. Schweiker, 684 F.2d 1144, 1146, n. 2 (5th Cir. 1982);
Strickland v. Harris, 615 F.2d 1103, 1105 (5th Cir. 1980). 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, 434 (5th Cir. 1994); Villa v.
Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990); Muse v. Sullivan, 925 F.2d 785, 789 (5th Cir. 1991).
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) (per curiam); Hames v. Heckler, 707 F.2d 162, 164 (5th Cir. 1983) (per curiam). 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 434; 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
2

(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 at 360; Selders v. Sullivan, 914 F.2d 614, 617
(5th Cir. 1990); Anthony, 954 F.2d 289, 295 (5th Cir. 1992); 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); SSR 96-5p.
“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); 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 at 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 (1971). The Court, however, 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).
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 five-step,
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; 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(a). 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).
To obtain Title II disability benefits, Plaintiff must show that he was disabled on or before the
last day of his insured status. Ware v. Schweiker, 651 F.2d 408, 411 (5th Cir.1981), cert. denied, 455
U.S. 912 (1982).

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III.

ADMINISTRATIVE LAW JUDGE’S FINDINGS
The ALJ made the following findings in the October 4, 2010 decision:
The claimant meets the insured status requirement of the Social Security Act through December
31, 2013

.
The claimant has not engaged in substantial gainful activity since October 31, 2008, the alleged
onset date (20 C.F.R. § 404.1571 et seq., and 416.971 et seq.).
The claimant has the following severe impairments: rheumatoid arthritis, lupus, early
connective tissue disease, obesity, and depression (20 C.F.R. § 404.1520(c) and 416.920[c]).
The claimant does not have an impairment or combination of impairments that meets or
medically equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1
(20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).
The claimant has the residual functional capacity (RFC) to lift up to ten pounds occasionally,
less than ten pounds frequently, stand and walk for 2 hours in an 8 hour workday, sit 6 hours
of an 8-hour workday as defined in 20 CFR 404.1567(a) and 416.967(a), narrowed by the need
for no climbing ladders and ropes, occasional balancing, stooping, kneeling, crouching or
crawling due to obesity. She retains the ability to understand, remember, and follow simple and
detailed instructions and complete repetitive simple tasks. The RFC is based on the evidence
of record and testimony at the hearing.
The claimant is unable to perform any past relevant work (20 C.F.R. § 404.1565 and 416.965).
Considering the claimant’s age, education, work experience, and residual functional capacity,
there are jobs that exit in significant numbers in the national economy that the claimant can
perform (20 C.F.R. §§ 404.1569, 404.1569(a), 416.969, 416.969[a]).
The claimant has not been under a disability, as defined in the Social Security Act, from
October 31, 2008, through the date of this decision (20 C.F.R. § 404.1520(g) and 416.920[g]).
See Tr. at 118.
The ALJ determined that Plaintiff was not disabled under section 1614 (a)(3)A) of the Social
Security Act. See Tr. At 118.
IV.

DISCUSSION AND ANALYSIS
Born in 1970, Plaintiff was 39 years old, which is defined as younger individual under the

regulations, at the time of the ALJ’s decision. See Tr. 108-23, 226; see also 20 C.F.R. § 404.1563(c).

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She has an eighth grade education, and past relevant work experience as daycare attendant, retail sales
in a clothing store, and as a clerk for a company contracting to provide emergency disaster relief. See
Tr. 18, 152-53. Plaintiff alleges an inability to work since June 12, 2009 due to lupus, vasculitis,
inflammation of blood vessels, depression, borderline diabetes, and severe body pain from lupus. See
Tr. at 219, 226, 245.
Plaintiff presents several specific issues for review: 1) whether evidence submitted for the first
time to the Appeals Council diluted the record such that substantial evidence no longer supports the
ALJ’s decision; 2) whether the ALJ properly assessed Plaintiff’s residual functional capacity (RFC);
and 3) whether the ALJ properly assessed Plaintiff’s credibility. See Plaintiff’s Brief at 1.
A.

The Medical Evidence

At the time of her applications, Plaintiff was thirty-eight years old, which the Act defines as a
“younger individual”. 20 C.F.R. §§ 404.1563 and 416.963. Medical records relevant to Plaintiff’s claim
show that she suffered from rheumatoid arthritis, lupus, connective tissue disease, insomnia, obesity,
and depression. On September 3, 2009, Plaintiff underwent a psychological evaluation and mental
status examination by psychologist Cactus McGirk, Ph.D. See Tr. at 330-34. Dr. McGirk diagnosed
depressive disorder and assessed a GAF score of fifty-eight, indicating moderate symptoms. See Tr. at
334. Dr. McGirk opined that Plaintiff understood the meaning of filing for benefits and could manage
benefits payments in her own interest. See Tr. at 330.
On September 23, 2009, Dr. Andrew Wade with Disability Determination Services physically
examined Plaintiff to assess her Lupus with fatigue, pain, and swelling. See Tr. at 336-40. Plaintiff
stated that she has pain everywhere and swelling in her hands, feet, and “all over her body” which
causes her to be unable to work or function. See Tr. at 336. When her legs became swollen, she was
unable to walk. Id. Plaintiff also stated that she experiences pain every day and is chronically fatigued.
Id. She stated that she could not lift anything over ten pounds and could not carry things for any
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distance because her hands swell. Id. If she was “hurting” she could not dress herself or clean herself
in the mornings. Id.
Dr. Wade noted Plaintiff’s headaches, abdominal bloating, muscle and joint aches and
numbness in her hands and left arm. See Tr. at 337. The doctor also observed dark vasculitic change
in Plaintiff’s lower legs at her shins and calves. Id. Plaintiff was dull to pinprick in her left hand up to
her elbow and the reflexes in her knees were slowed. See Tr. at 338. Dr. Wade also observed Plaintiff’s
abnormal ability to stand, need for help getting to her feet, and unsteady stance. Id. Plaintiff also had
an abnormal gait due to a limp on her right side with walking. See Tr. at 339. She was unable to squat
or hop and had mild low back pain when bending forward. Id. Dr. Wade assessed moderate functional
limitations with moving, moderate to severe functional limitations with lifting and carrying, and overall
balance, bending, and gait problems. Id
.

From September 2009 through December 2009, Plaintiff was treated at Johnson Ross and Hurst

Memorial Clinic due to insomnia, fatigue, and multiple rashes. See Tr. at 411-33. She was diagnosed
with rheumatoid arthritis, mixed connective tissue disorder, and depression. Id. She was prescribed
medication and referred to Dr. Pratap Tummala for evaluation. Id. On November 18, 2009, Dr.
Tummala, evaluated Plaintiff’s joint pain and connective tissue disease. See Tr. at 342. Dr. Tummala
noted that Plaintiff experienced generalized pain, stiffness, and fatigue which worsened with activity.
Id. After examination, Dr. Tummala concluded that Plaintiff had some of the antibodies consistent with
Lupus, mild synovitis, and strong positive rheumatoid factor. See Tr. at 344. He opined that Plaintiff
could have early rheumatoid arthritis. Id. After more examination Dr. Tummala concluded that
Plaintiff had an overlap of rheumatoid arthritis and lupus. See Tr. at 345.
Dr. Tummala continued to treat Plaintiff’s joint pain and connective tissue disease through
2010. See Tr. at 442, 445. Dr. Tummala noted that Plaintiff’s joint pain had worsened and that she had
been unable to work in any job due to the pain. Id. The doctor also noted that Plaintiff had intermittent
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pain in both of her wrists and parethesias in her arms and legs. Id. Plaintiff continued to experience
generalized pain, stiffness, and fatigue. Id. Dr. Tummala counted twenty-two tender joints but observed
no swelling. See Tr. at 442-43. He continued his assessment of rheumatoid arthritis overlapping with
lupus. See Tr. at 443, 445-47.
State agency consultant, Dr. Norvin Curtis, issued a psychiatric review technique which
assessed Plaintiff from July 29, 2009, to February 4, 2010. See Tr. at 451-64. Dr. Curtis identified
Plaintiff’s depressive disorder, characterized by her sleep disturbance, decreased energy, and difficulty
concentrating or thinking and as a medically determinable impairment. See Tr. at 454. The consultant
opined that Plaintiff’s mental impairments caused moderate difficulties in maintaining concentration,
persistence, or pace. See Tr. at 461.
In a subsequent mental RFC based on Plaintiff’s depressive disorder, Dr. Curtis opined that
Plaintiff was moderately limited in her 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. See Tr. at 465-66. The
consultant concluded that Plaintiff could understand, remember, and carry out detailed but not complex
instructions, make basic decision, concentrate for extended periods, interact with others, and respond
to changes. See Tr. at 467.
On February 5, 2010, another non-examining state agency medical consultant issued a physical
RFC based Plaintiff’s connective tissue disease. See Tr. at 469-76. The consultant opined that Plaintiff
could lift and/or carry ten pounds frequently, stand and/or walk at least two hours in an eight-hour
workday with normal breaks, and sit about six hours in an eight-hour workday. See Tr. at 470. The
consultant opined that Plaintiff’s impairment did not meet or equal a listing under SSA guidelines and
that Plaintiff was capable of sustained work. See Tr. at 476.
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Dr. Tummala continued to treat Plaintiff for rheumatoid arthritis through 2012. See Tr. at 7382. On January 24, 2011, he issued a physician’s statement based on Plaintiff’s rheumatoid arthritis and
diffuse connective tissue disease. See Tr. at 84. Dr. Tummala stated that Plaintiff’s impairments were
permanent. Id. He opined that Plaintiff could not lift/carry objects weighing more than two pounds for
more than one hour per day. Id. She could not stand longer than five minutes and had to move every
fifteen minutes while sitting. Id. Dr. Tummala also opined that Plaintiff could not kneel, squat, bend,
or stoop, and could only occasionally push and pull. Id. Further, Plaintiff could only occasionally
keyboard due to pain in her hands. Id.
Hearing Testimony
At the administrative hearing, the medical expert testified that Plaintiff’s impairments would
not meet or equal a listing and she would be capable of light and sedentary work. See Tr. at 128. The
medical expert also testified that, because he did not actually examine Plaintiff, he did not have a
complete basis for giving an assessment of what her functional capacity might be. See Tr. at 131.
Plaintiff testified that her hands swell and become painful. See Tr. at 135. She could not sit for
more than an hour, before she experiences swelling in her legs and hands. Id. She described her pain
as throbbing and ranging from five to eight out of ten on a daily basis. See Tr. at 136. Plaintiff stated
that the pain in her hands affects her ability to grasp objects and lift things. See Tr. at 139-40. When
her hands swell, Plaintiff is unable to bend them to grasp things. See Tr. at 140. Plaintiff testified that
she can lift a gallon of milk when her hands are not swollen, watches television, and she sometimes
tries to help her grandparents cook. See Tr. at 140. Plaintiff is bedridden on “bad days”; however, she
also possesses a valid driver’s license and drives once a week. See Tr. at 142. She also uses a computer
for short periods of time. See Tr. at 146.
Plaintiff further testified that she has good and bad days with bad days occurring three to four
times a week. See Tr. at 141. On bad days, Plaintiff could not get out of bed, bathe, dress, or groom
9

herself, nor was she able to go to work. See Tr. t 142-43. Plaintiff also testified that she could not
afford to go to the doctor and could barely afford to pay rent. See Tr. at 148, 149.
The vocational expert (VE”) testified that were Plaintiff only able to use her “hands and arms
only occasionally for both gross and fine manipulation, basically bilateral manual dexterity,” that this
would preclude Plaintiff from performing other work as a assembler of optical goods, sewing machine
operator, and telemarketer quotation provider. See Tr. 155; Pl.’s Br. at 14.
B.

ALJ’s Step Four Analysis

“To determine whether a claimant is disabled, the Commissioner must utilize a five-step,
th

sequential process.” Villa v. Sullivan, 895 F.2d 1019, 1022 (5 Cir. 1990). 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 her past relevant work.20
C.F.R. §§ 416.920(b)-(f). The ALJ found that Plaintiff had the RFC to lift up to ten pounds
occasionally and less than ten pounds frequently, stand and walk for two hours in an eight-hour
workday, and sit six hours in an eight-hour workday, narrowed by the restriction against climbing
ladders or ropes and limited to occasional balancing, stooping, kneeling, crouching or crawling due to
obesity. See Tr. at 114-15. The ALJ further held that Plaintiff retained the ability to understand,
remember, and follow simple and detailed instructions and complete repetitive simple tasks. See Tr.
at 115. The ALJ ultimately determined that the objective medical evidence did not substantiate
Plaintiff’s allegations of total and permanent disability. See Tr. at 118.
The ALJ found that Plaintiff’s severe impairments include rheumatoid arthritis, lupus, early
connective tissue disease. See Tr. at 113. The ALJ did not, however, address the medical record
evidence of Plaintiff’s issues with her hands and her manipulative limitations in assessing Plaintiff’s
RFC.
10

In Hunter v. Commissioner, 2012 WL 4741231 (N.D.Tex., September 6, 2012), the District
Court observed that “the ALJ failed to mention Plaintiff’s medical impairment of lumbar disc disease.
He failed to consider this impairment at Step Two and assess its severity.” The District Court noted
that considerable medical evidence supported the existence of this disease, along with testimony of the
difficulties which it caused to the plaintiff. The District Court explained as follows:
When an ALJ determines a claimant’s residual functional capacity, the ALJ must
consider all of a claimant’s medically determinable impairments, including those that
are not severe. 20 C.F.R. §§404.1545(a)(2), 404.1545(e), 416.945(a)(2), 416.945(e).
A medically determinable impairment is one that is ‘demonstrated by medically
acceptable clinical and laboratory diagnostic techniques.’ Greenspan v. Shalala, 38 F.3d
232, 239 (5th Cir. 1994); quoting 42 U.S.C. §423(d)(3).
The District Court in that case observed that a treating physician’s opinion on the nature and
severity of an impairment will be given controlling weight if it is well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is not inconsistent with other substantial
evidence, citing Newton v. Apfel, 209 F.3d 448, 455 (5th Cir. 2000). In addition, the ALJ must
consider the entire record and cannot pick and choose only the evidence which supports his position.
Loza v. Apfel, 219 F.3d 378, 393, 399 (5th Cir. 2000).
Although the Commissioner in Hunter argued that the medical sources consisted only of
conclusions, the District Court rejected this contention, stating that the reports were not simply
conclusory opinions that the claimant was disabled, but instead consisted of medical records including
diagnoses, progress reports, and treatment plans. The District Court cited other records of diagnoses
from treating physicians including osteoarthritis, fibromyalgia, lumbar degenerative disc disease, ptosis,
and Sjogren’s syndrome, and concluded that “the ALJ’s failure to discuss these medical opinions and
to give good reasons for the decision to omit assigning any weight to them is contrary to Social Security
Rulings 96-2p and 96-5p and 20 C.F.R. §404.1527(d). The ALJ erred in evaluating the medical
11

evidence and his RFC determination is not supported by substantial evidence.” Id.; see also Reed v.
Colvin, 2013 WL 5314438 (N.D.Tex., September 23, 2013) (District Court held that “it is simply not
clear from the record before the court whether the ALJ considered Plaintiff’s actual diagnoses of
borderline intellectual functioning and cognitive disorder in establishing Plaintiff’s RFC; the court is
not in a position to speculate that the error is harmless and that the result of the administrative
proceeding would have been the same,” and remanded the case).
C. Application of Law to the Present Case
Regulations define a severe impairment as “any impairment or combination of impairments
which significantly limits [a claimant’s] physical or mental ability to do basic work activities.” 20
C.F.R. § 416.920(c). As the ALJ correctly stated, the Fifth Circuit has held that 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.” See Tr. at 12; see also Stone v. Heckler,
752 F.2d 1099, 1101 (5th Cir. 1985). Therefore, when an ALJ has determined that an impairment is
severe at Step Two, as is the situation with Plaintiff’s case, he has found that the impairment limits the
claimant’s ability to work.
In this case, the ALJ found Plaintiff’s connective tissue disease, lupus, and rheumatoid arthritis
to be a severe impairment at Step Two but did not include any manipulative limitations in his RFC
assessment despite the evidence that her diseases caused those limitations. See Tr. at 113-15. The RFC
is the most a claimant can do in a work setting despite any limitations that claimant may have. 20
C.F.R. § 416.945(a)(1). When determining a claimant’s RFC, the ALJ must consider all medically
determinable impairments of which he is aware, including those that are not “severe”. 20 C.F.R. §
416.945(a)(2); see also 20 C.F.R. §§ 416.920(c)), 416.921, and 416.923. The ALJ must make clear
12

factual findings on this issue for his decision to stand. See Abshire v. Bowen, 848 F.2d 638, 641 (5th
Cir. 1988).
The ALJ’s failure to include Plaintiff’s limitations in his RFC prejudiced Plaintiff’s claim
because the unsupported RFC did not reflect Plaintiff’s actual capability. Upon examination, Dr. Wade
noted Plaintiff’s muscle and joint aches and numbness in her hands and left arm. See Tr. at 337.
Plaintiff stated that she has pain everywhere and swelling in her hands, feet, and “all over her body”
which causes her to be unable to work or function. See Tr. at 336. Plaintiff stated that she could not
carry things for any distance because her hands swell. See id. If she was “hurting” she could not dress
herself or clean herself in the mornings. Id. Dr. Wade observed that Plaintiff was dull to pinprick in
her left hand up to her elbow. See Tr. at 338. Dr. Tummala, evaluated Plaintiff’s joint pain and
connective tissue disease. See Tr. at 342.
Dr. Tummala noted that Plaintiff experienced generalized pain, stiffness, and fatigue which
worsened with activity. Id. He noted that Plaintiff’s joint pain had worsened and that she had been
unable to work in any job due to the pain. See Tr. at 442, 445. The doctor also noted that Plaintiff had
intermittent pain in both of her wrists and parethesias in her arms and legs. Id. Plaintiff continued to
experience generalized pain, stiffness, and fatigue. Id. Dr. Tummala counted twenty-two tender joints.
See Tr. at 442-43.
Plaintiff testified that her hands swell and become painful. See Tr. at 135. She described her
pain as throbbing and ranges from five to eight out of ten on a daily basis. See Tr. at 136. Plaintiff also
stated that the pain in her hands affects her ability to grasp objects and lift things and she is unable to
bend her hands when they swell. See Tr. at 139-40. Based on Plaintiff’s rheumatoid arthritis and diffuse
connective tissue disease. Dr. Tummala opined that Plaintiff could not lift/carry objects weighing more
13

than two pounds for more than one hour per day. See Tr. at 84. She could only occasionally keyboard
due to pain in her hands. Id.
Despite this evidence showing the hand and arm limitations Plaintiff experienced, the ALJ did
not include any manipulative limitations in his RFC assessment. See Tr. at 114-15. Further, the ALJ
failed to explain why such limitations were excluded from his RFC assessment. In all cases in which
pain or other symptoms are alleged, the administrative decision must contain a thorough discussion and
analysis of the objective medical and other evidence, including the individual's complaints of pain or
other symptoms and the adjudicator's own observations. Turney v. Astrue, 2009 WL 980323 *6 (N.D.
Tex. Apr. 9, 2009); see also Social Security Ruling 95-5p.
The ALJ’s failure to include all of Plaintiff’s limitations in his RFC prejudiced Plaintiff’s claim
because the unsupported RFC did not reflect Plaintiff’s actual capability. Plaintiff alleged limitations
in her ability to use her hands. See Tr. at 135, 136, 139–40. Treatment records also support
manipulative limitations. See Tr. at 84, 336–38, 442, 445. The ALJ found Plaintiff’s connective tissue
disease to be a severe impairment at Step Two but did not include any manipulative limitations in his
RFC assessment despite the evidence that her disease caused those limitations. See Tr. at 113-15.
The Commissioner responds that the ALJ’s RFC findings regarding Plaintiff’s ability to use her
hands were supported by substantial evidence. See Def. Br. at 10–12. In support, Commissioner first
cites the opinions of the nonexamining consultant who found that Plaintiff had no manipulative
limitations. See Def. Br. at 11. This nonexamining opinion, however, is directly contradicted by Dr.
Tummala’s opinion. See Tr. at 84. This nonexamining opinion also contradicts other evidence from
treating and examining sources. See Pl. Br. at 12–14. The ALJ may rely on a nonexamining opinion
only where it does not contradict the examining physician. Villa v. Sullivan, 895 F.2d 1021, 1024 (5th
14

Cir. 1990); see also Barbee v. Barnhart, 54 Fed. Appx. 406 (5th Cir. 2002) (An ALJ cannot rely on
non-examining opinion over that of a treating specialist).
The Commissioner also noted several records that indicate that Plaintiff had normal grip
strength in her hands as support for the ALJ’s findings. See Def. Br. at 11–12. The Commissioner
fails to explain, however, how normal grip strength is determinative of the ability to use her hands
constantly, when evidence shows that she also experienced pain, paresthesias, an inability to lift and
carry objects weighing more than two pounds, and an inability to use a keyboard more than
occasionally. See Tr. at 84, 442, 445.
Plaintiff’s allegation that her ability to use her hands was impaired was supported by the
evidence in the record from her treating physicians. Conversely, the ALJ’s finding that Plaintiff was
unlimited in the use of her hands was not supported by substantial evidence. Therefore, the ALJ’s
unsupported RFC finding did not reflect Plaintiff’s actual capability.

The claimant’s RFC is

considered twice in the Five-Step sequential analysis of a disability claim. Newton, 209 F.3d at 453.
At the Fourth Step, it is used to determine whether the claimant can still perform her past relevant work.
Id. At the Fifth Step, it is used to determine if the claimant can perform any other work in the national
economy. Id.
At Step Five, the ALJ determined that Plaintiff could perform the jobs of assembler of goods,
sewing machine operator, and telemarketer quotation provider. See Tr. at 117. At the administrative
hearing, however, the VE testified that those jobs would be eliminated if claimant’s ability to use her
hands was limited. See Tr. at 155. If the ALJ had included all of Plaintiff’s limitations in his RFC
assessment, there existed a reasonable possibility that the findings in his case could have been different.
Ripley, 67 F.3d at 555 (remand is appropriate when evidence is evaluated under the correct legal
15

standards, and there is reasonable probability that the new evidence or evaluation would change the
outcome of the decision.).
The ALJ based his findings at Step Four and Five on his RFC assessment. Because the disability
determination is based in large part on the RFC finding, an improper RFC could have led to an
improper disability determination. Mahoney v. Astrue, 3:09-CV-810-L, 2009 WL 3097334, at *9 (N.D.
Tex. Sept. 25, 2009). Had the ALJ included all of Plaintiff’s limitations in his RFC assessment, there
existed a reasonable possibility that the findings in his case could have been different, therefore remand
is appropriate for further consideration of Plaintiff’s RFC. Ripley v. Chater, 67 F.3d 552, 555 (5th Cir.
1995) (remand is appropriate when evidence is evaluated under the correct legal standards, and there
is reasonable probability that the new evidence or evaluation would change the outcome of the
decision.).
Given the medical records and Plaintiff’s testimony about her pain and limitations with her
hands, the RFC finding by the ALJ with no limitations on manipulations is error. Because there is no
indication that the ALJ properly considered Plaintiff’s pain and limitations associated with her welldocumented medical conditions in determining Plaintiff’s RFC, the ALJ’s decision is not supported
by substantial evidence. Therefore, the Court must reverse the decision of the ALJ denying benefits.
th

See Carey v. Apfel, 230 F.3d 131, 143 (5 Cir. 2000). This error requires a remand; as a result, the
remainder of the Plaintiff’s claims need not be addressed.

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V.

CONCLUSION
It is accordingly
ORDERED that the decision of the Commissioner is hereby REVERSED and REMANDED
.

pursuant to sentence four of 42 U.S.C. § 405(g) with instructions for further consideration consistent
with the findings above.

So ORDERED and SIGNED this 25th day of September, 2014.

___________________________________
JOHN D. LOVE
UNITED STATES MAGISTRATE JUDGE

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