Henson v. Colvin

Filing 17

MEMORANDUM AND OPINION, and ORDER re 1 Complaint filed by Connie L Henson. ORDERED that the Commissioners final decision is AFFIRMED and that this social security action is DISMISSED WITH PREJUDICE. Signed by Magistrate Judge K. Nicole Mitchell on 9/29/2016. (gsg)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
CONNIE L. HENSON
vs.
COMMISSIONER, SOCIAL
SECURITY ADMINISTRATION

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CIVIL ACTION NO. 6:14cv847

MEMORANDUM OPINION AND ORDER
On November 9, 2015, Plaintiff initiated this lawsuit by filing a complaint seeking
judicial review of the Commissioner’s decision denying her application for Social Security
benefits. The matter was transferred to the undersigned with the consent of the parties pursuant
to 28 U.S.C. § 636. For the reasons discussed below, the Commissioner’s final decision is
AFFIRMED and the above-styled lawsuit is DISMISSED WITH PREJUDICE.
PROCEDURAL HISTORY
Plaintiff filed an application for Disability Insurance Benefits on September 12, 2012
alleging a disability onset date of June 8, 2012. The application was denied on November 7,
2012, and again on reconsideration on January 14, 2013. Plaintiff filed a request for a hearing
before an Administrative Law Judge (“ALJ”). An ALJ conducted a video hearing on September
9, 2013, and issued an unfavorable decision on October 8, 2013, concluding that Plaintiff is not
disabled under sections 216(i) and 223(d) of the Social Security Act (“the Act”). Plaintiff
submitted a request for review of the ALJ’s decision. The Appeals Council denied the request
for review on September 30, 2014.

As a result, the ALJ’s decision became that of the

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Commissioner. Plaintiff then filed this lawsuit on November 9, 2014, seeking judicial review of
the Commissioner’s decision.
STANDARD
Title II of the Act provides for federal disability insurance benefits. 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 at 360 (citing Selders v. Sullivan, 914 F.2d
614, 617 (5th Cir. 1990)); Anthony, 954 F.2d at 295 (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 Administrative
Law Judge’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 at 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); 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) and 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) and 1382c(a)(3)(B).

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In order to determine whether a claimant is disabled, the Commissioner must utilize a
five–step sequential process. Villa, 895 F.2d 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
Harrell, 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 1. 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. §§ 404.1520(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. To obtain Title II disability benefits, a
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, 102 S.Ct. 1263, 71
L.Ed.2d 452 (1982). 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).

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ALJ’S FINDINGS
The ALJ made the following findings in his October 8, 2013 decision:
1. The claimant meets the insured status requirements of the Social Security Act through
December 31, 2017.
2. The claimant has not engaged in substantial gainful activity since June 8, 2012, the
alleged onset date (20 CFR § 404.1571 et seq.).
3. The claimant has the following severe impairments: lumbar disc disease, diabetes,
and obesity (20 CFR § 404.1520(c)).
4. 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 (20 CFR 404.1520(d) and 404.1526).
5. After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to lift and carry 10 pounds occasionally
and less than 10 pounds frequently, sit for 6 hours in an 8-hour workday, and stand
and walk for at least 2 hours out of an 8-hour workday, limited by the option to
alternate sitting and standing at 30 minute intervals. The claimant is limited to no
climbing ladders, ropes or scaffolds, and only occasional climbing ramps and stairs,
balancing, stooping, kneeling, crouching and crawling. She should avoid exposure to
hazards, such as unprotected heights, fast moving machinery, sharp objects and open
flames; prolonged exposure to temperature extremes, and concentrated exposure to
vibration. Because of the potential effects of pain, the claimant should not be
required to understand, remember and carryout complex instructions.
6. The claimant is capable of performing past relevant work as a data entry operator.
This work does not require the performance of work-related activities precluded by
the claimant’s residual functional capacity (20 CFR 404.1565).
7. The claimant has not been under a disability, as defined in the Social Security Act,
from June 8, 2012, through the date of this decision (20 CFR 404.1520(f)).
ADMINISTRATIVE RECORD
Plaintiff alleges a disability onset date of June 8, 2012. Her date of birth is October 9,
1957 and she graduated from high school. Her past relevant work includes employment as a
correctional guard, data entry operator and ticketer.

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Plaintiff testified at her hearing before the ALJ on September 9, 2013. She testified that
she cannot work because her back hurts constantly. She described a steady pain with occasional
sharp pains running down her back to her tailbone, hip and right leg. Plaintiff stated that she
cannot sit for more than 15 to 20 minutes before she needs to get up and move around. She
constantly repositions herself. Plaintiff testified that she also cannot stand more than 15 to 20
minutes before experiencing sharp pain. Plaintiff stated that she had back surgery with Dr.
Gordon, but it did not really help. After her surgery she took hydrocodone for approximately
two months, but she stopped taking it because it made her drowsy and did not help her pain.
Plaintiff testified that Dr. Gordon told her to use a cane to assist with going from a chair
to standing and vice versa because her leg was giving out on her. When she tried walking after
her surgery she experienced severe pain in her lower back and hip. Plaintiff stated that she got
steroid shots into her hip. She cut her walking down to about 50 yards at a time. Plaintiff does
not cook very much because she cannot stand for a long time and cannot lift heavy pots.
Plaintiff opined that her doctor may put her on insulin because she has had more trouble with her
diabetes due to the steroid shots and pain that she suffers. Plaintiff stated that she had a lot of
trouble with her right leg going out on her, but it has been better more recently. Plaintiff testified
that prior to having her back condition, she was very active and worked full-time.
A vocational expert witness, Suzanne Skinner, also testified at Plaintiff’s hearing. Ms.
Skinner testified that Plaintiff’s work history for the previous 15 years includes employment as a
(1) correctional officer, DOT 372.667-018, medium work activity, semi-skilled, SVP 4; (2) data
entry operator, DOT 203.582-054, sedentary, semi-skilled, SVP 4; and (3) ticketer, DOT
652.685-098, light, semi-skilled, SVP 3. Presented with a hypothetical individual of advanced
age with a high school education and Plaintiff’s work experience who can lift and carry up to 10

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pounds occasionally and less than 10 frequently, sit up to 6 hours out of an 8-hour day, perform
standing and walking of at least 2 hours in an 8-hour day, with a need to alternate sitting and
standing at 30 minute intervals, with no climbing ladders, ropes or scaffolds and only occasional
climbing of ramps or stairs, balancing, kneeling, crawling, crouching and stooping, who should
avoid exposure to hazards such as unprotected heights, fast-moving machinery, sharp objects and
open flames, as well as prolonged exposure to temperature extremes and concentrated exposure
to vibration, who should not be required to understand, remember or carry out complex
instructions, Ms. Skinner testified that the individual could perform Plaintiff’s past work as a
data entry operator. Ms. Skinner also stated that the use of a cane at times for ambulation would
not interfere with the performance of that job. If, however, the individual is limited to sitting no
more than 15 minutes at a time or 1 hour total in a workday, that would preclude the ability to
perform that job and any other job to which the individual’s skills would transfer. Ms. Skinner
opined that a need to rest in a seated or lying position for 15 minutes at a time after engaging in
standing or walking would not affect the ability to do that job. She also stated that an individual
could not maintain the job if she consistently misses work 1-1/2 days per month or is off task
more than 5 minutes per hour. Finally, Ms. Skinner testified that she is not aware of any conflict
between her testimony and the Dictionary of Occupational Titles.
Plaintiff received medical care at the Elkhart Medical Center from Larry E. Burch, DO.
At a visit on June 8, 2012, Plaintiff complained of back pain radiating down both legs.
Plaintiff’s medications included Actos, Glipzide, Metformin, Omeprazole and Welchol. She had
a blood pressure of 152/90. Dr. Burch added prescriptions for Lortab and Zanaflex. Plaintiff’s
diagnoses included lumbar degenerative disc disease, diabetes mellitus, uncomplicated, Type II,
hypercholesterolemia, and obesity.

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Plaintiff was referred to Charles R. Gordon, M.D. Dr. Gordon examined Plaintiff on
June 19, 2012. On examination, Dr. Gordon noted a little paraspinous spasm and weakness into
the extensor halluces longus on the right. An MRI from June 8, 2012 showed a disc protrusion at
L4–5, as well as a slight spondylolisthesis at this level and edema in the facets. Dr. Gordon
opined that if Plaintiff were to have surgery, it would be a microdiscectomy and a total
facetectomy with an instrumented fusion to stabilize her at L4–5. Plaintiff agreed with the
surgical plan and Dr. Gordon performed the surgery on July 19, 2012.
Plaintiff returned to Dr. Gordon three weeks after surgery and reported severe pain
following an incident in which she twisted, lost her balance and fell over to the left side. She
received trigger point injections in her left hip. On September 5, 2012, Dr. Gordon noted that
Plaintiff was better after her TLIF (transforaminal lumbar interbody fusion). Plaintiff stated that
she was still having some left leg pain, but her back pain was better and she felt that her leg was
improving. Plaintiff’s neurological examination revealed normal mental status, normal cranial
nerves, 5/5 strength throughout, 2+ bilaterally symmetric reflexes, and downgoing toes. Dr.
Gordon did not detect any weakness on exam. Plaintiff’s CT looked “quite favorable” and her
rod, screws, and cage were in good position. 1
At an office visit with Dr. Burch on September 18, 2012, Plaintiff complained of severe
right leg pain, especially when trying to bend or squat, and she requested an extension on her
work release. She returned to Dr. Gordon on October 29, 2012 and reported still having some
back and leg pain. Dr. Gordon noted, however, that she was making progress. He continued her
on her home exercises and current medications. Dr. Gordon opined that Plaintiff should not
return to her job as a prison guard.

1

See Administrative Record, ECF 15-6, at *239.
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On January 21, 2013, Plaintiff reported having a rough time with pain in her back and
down her right leg. On examination, she was negative for Homans’ sign, but had positive right
straight leg raising.

Dr. Gordon stated that he would like to get a better evaluation with a

hardware block, Doppler and plain films of the lumbar spine. Plaintiff had a negative duplex
venous sonogram of the right lower extremity with no evidence of deep venous thrombosis. XRays of the lower spine revealed a stable appearance with right-sided pedicle fixation of L4–5.
Fixation hardware was in good position and the spine was well aligned. On the same date, Dr.
Gordon signed a letter stating:
This is a letter to confirm my opinion as discussed in the office today. I think that
you are disabled and unable to return to any sort of gainful employment. I fully
support your bid for disability.
See Administrative Record, ECF 15-6, at *330. He also signed a Work Status form to excuse
Plaintiff from work starting on January 21, 2013.
On April 19, 2013, Dr. Gordon completed a Residual Functioning Capacity form. Dr.
Gordon opines that Plaintiff can sit for 15 minutes before alternating her posture by walking, she
needs to stand or walk for 15 minutes before returning to sitting, she can only sit for 1 hour total
in an 8-hour workday, she can only stand or walk for a total of 30 minutes before alternating her
posture to sitting, she needs to sit or lie down/recline for 15 minutes before returning to standing
or walking and she can only stand or walk for a total of 1 hour in an 8-hour workday. Dr.
Gordon further opined that Plaintiff would need to lie down or recline during an 8-hour workday
during a morning break, lunch period and an afternoon break at approximately 2 hour intervals to
relieve pain. Dr. Gordon estimated that the total cumulative amount of time Plaintiff would need
to rest during a workday is 1 hour. Further, Dr. Gordon concluded that Plaintiff could frequently
lift and carry 1–5 pounds, occasionally lift and carry 6–10 and 11–20 pounds and rarely or never

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lift and carry 21–50. She can frequently perform forward flexion, backward flexion and rotation
left and right and frequently perform reaching, handling and fingering on the left and right.
At a return visit on July 15, 2013, Dr. Gordon noted that imaging studies and a hardware
block were not done back in January 2013 due to insurance issues. Plaintiff complained of back
pain, bilateral hip, buttock and leg pain and tailbone pain. Plaintiff reported only taking Tylenol
for her pain. Dr. Gordon noted that Plaintiff appeared to be in a moderate amount of pain and
discomfort and she had some pain with palpation across the lower lumbar spine. He also stated
that she had some give-way weakness in the lower extremities and was using a cane. Plaintiff
could not proceed with any further workup or diagnostic studies due to insurance and financial
issues.
DISCUSSION AND ANALYSIS
In her brief, Plaintiff identifies two issues for review:
(1) Whether the ALJ applied the proper legal standard when assessing the opinion of her
treating physician; and
(2) Whether the ALJ applied the proper legal standard when stating that she can perform
past relevant work or adjust to new work.
Plaintiff’s Residual Functional Capacity
The first issue raised by Plaintiff arises out of the ALJ’s RFC finding. Plaintiff asserts
that the ALJ’s opinion erroneously afforded little weight to the opinion of Plaintiff’s treating
physician, Dr. Gordon. Plaintiff complains that the ALJ failed to clarify any confusion he had
about Dr. Gordon’s assessment and did not afford weight to Dr. Gordon’s determination that she
must rest and cannot stand or walk more than 3 hours in an 8-hour workday. According to
Plaintiff, the ALJ dismissed the well-documented, well considered and reasonable opinions of
her treating physicians.

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In this case, after finding that Plaintiff has not engaged in substantial gainful activity
since her alleged onset date, the ALJ identified the following severe impairments: lumbar disc
disease, diabetes, and obesity. He then found that Plaintiff’s impairments did not meet or
medically equal a listed impairment. At that point, the ALJ considered Plaintiff’s residual
functional capacity.
In finding that Plaintiff could perform sedentary work with specifically identified
additional limitations, the ALJ thoroughly summarized the medical evidence of record,
Plaintiff’s function reports and Plaintiff’s testimony at the hearing, including Plaintiff’s
testimony as to her symptoms and limitations. The ALJ determined that Plaintiff’s medically
determinable impairments could reasonably be expected to cause some symptoms. In light of the
medical history and evidence, however, he concluded that Plaintiff’s allegations concerning the
intensity and persistence of her physical pain and the limitations her impairments have on her
ability to work are not entirely substantiated. The ALJ noted that Plaintiff has not required an
inordinate amount of treatment following her July 2012 surgery. The medical record does not
support the need for a cane or other assistive device. Diagnostic testing does not show that her
surgery was unsuccessful. On the contrary, the most recent X-Ray of the lumbar spine showed
stable appearance with right-sided pedicle fixation of L4–5. The ALJ explained that Plaintiff is
not treated with insulin for her diabetes and she weaned herself off of pain medication. The ALJ
considered Plaintiff’s activities of daily living and the fact that Plaintiff has not shown a need for
medical treatment since April 2013, which was less than 1 year following her back surgery.
In assessing the opinion of Dr. Gordon, the ALJ stated that he assigned little weight to
Dr. Gordon’s opinion regarding Plaintiff’s ability to perform work activities. He explained that
Dr. Gordon’s opinion concerning Plaintiff’s residual functional capacity is not supported by

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clinical and laboratory findings. He also noted that Plaintiff exhibited an ability at her hearing to
sit longer than Dr. Gordon opined that she could. The ALJ agreed with Dr. Gordon’s opinion
that Plaintiff cannot return to her work as a prison guard, but determined that the record as a
whole shows that she can perform a wide range of sedentary work.
The ALJ properly considered Plaintiff’s complaints of pain and symptoms.

In

determining whether pain is disabling, the courts give deference to the Commissioner. Hollis v.
Bowen, 837 F.2d 1378, 1384–85 (5th Cir. 1988). The Commissioner, as opposed to the Court, is
the fact finder and the Commissioner may determine the credibility of witnesses and medical
evidence. Griego v. Sullivan, 940 F.2d 942, 945 (5th Cir. 1991). 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. Chambliss v. Massanari, 269 F.3d 520, 522 (5th Cir. 2001).
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 rise to the level of disabling, pain must be “constant, unremitting, and wholly
unresponsive to therapeutic treatment.” Falco v. Shalala, 27 F.3d 160, 163 (5th Cir. 1991). 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 v.
Sullivan, 925 F.2d 123, 128–29 (5th Cir. 1991); Houston v. Sullivan, 895 F.2d 1012, 1016 (5th
Cir. 1989). A claimant’s testimony of pain and limitations, standing alone, is insufficient to
establish disability. See 42 U.S.C. § 432(d)(5)(A) (“An individual’s statement as to pain or other
symptoms shall not alone be conclusive of disability.”). “At a minimum, objective medical
evidence must demonstrate the existence of a condition that could reasonably be expected to

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produce the level of pain or other symptoms alleged.” Anthony v. Sullivan, 954 F.2d 289, 296
(5th Cir. 1992) (citing Owens v. Heckler, 770 F.2d 1276, 1281 (5th Cir. 1985)).
Here, the ALJ’s decision considers Plaintiff’s testimony and her complaints concerning
her pain and functional limitations. The ALJ determined that Plaintiff’s subjective allegations
concerning her pain and the severity of her limitations are not consistent with or fully supported
by the objective medical record as a whole. The ALJ properly considered the intensity, duration
and limiting effects of Plaintiff’s symptoms.
Generally, considerable weight is given to the opinions of treating physicians. 20 C.F.R.
§ 404.1527. “A treating physician’s opinion on the nature and severity of a patient’s 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.”
Newton v. Apfel, 209 F.3d 448, 455 (5th Cir. 2000) (quoting Martinez v. Chater, 64 F.3d 172, 176
(5th Cir. 1995) (citation omitted)). “Good cause for abandoning the treating physician rule
includes disregarding statements [by the treating physician] that are brief and conclusory, not
supported by medically acceptable clinical laboratory diagnostic techniques, or otherwise
unsupported by the evidence.” Leggett v. Chater, 67 F.3d 558, 566 (5th Cir. 1995) (quoting
Greenspan v. Shalala, 38 F.3d 232, 237 (5th Cir. 1994), cert. denied, 514 U.S. 1120, 115 S.Ct.
1984 (1995)). In addition, statements by any of the medical sources concluding that a plaintiff is
disabled, unable to work or unable to perform or resume any job activity are not entitled to any
special significance because the ultimate decision of whether a claimant is disabled, as defined in
the Act, rests with the Commissioner. Newton v. Apfel, 209 F.3d at 455–56; SSR 96–5p. This is
a legal conclusion, as opposed to a medical opinion, that is reserved to the Commissioner. Frank
v. Barnhart, 326 F.3d 618, 620 (5th Cir. 2003).

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In this case, the ALJ fully explained his reasoning for affording little weight to Dr.
Gordon’s April 19, 2013 assessment of Plaintiff’s ability to perform work activities and he
applied the correct legal standard in assessing the opinion.

Dr. Gordon’s opinion is not

supported by the objective medical evidence in the record or Dr. Gordon’s treatment notes. His
opinion is not consistent with Plaintiff’s activities or behavior at her hearing. Plaintiff faults the
ALJ for not expressly commenting on each factor of 20 C.F.R. § 404.1527(c), but the ALJ’s
opinion provides adequate reasons for discounting Dr. Gordon’s conclusions. See Rollins v.
Astrue, 464 Fed.Appx. 353, 356 (5th Cir. 2012). The ALJ provided specific, appropriate reasons
for giving little weight to Dr. Gordon’s residual functional capacity assessment. In addition, Dr.
Gordon’s prior opinion on January 21, 2013 is a conclusory statement of the ultimate decision of
whether Plaintiff is disabled; a decision reserved for the Commissioner. Newton v. Apfel, 209
F.3d at 455–56
There is substantial evidence in the record supporting the ALJ’s decision concerning
Plaintiff’s RFC and the ALJ applied the correct legal standard in assessing the weight to give
Plaintiff’s treating physician opinion.
Ability to Perform Past Relevant Work
Plaintiff argues that there is not substantial evidence to support the ALJ’s finding that she
can perform her past relevant work or adjust to new work. Plaintiff asserts that the ALJ
erroneously relied on the vocational expert’s opinion instead of making a full analysis of the
physical demands of the job in relation to her residual functional capacity.
Here, the ALJ presented the vocational expert with a hypothetical of an individual with
Plaintiff’s physical residual functional capacity. The vocational expert opined that the individual
could perform Plaintiff’s past relevant work as a data entry operator. Ms. Skinner further

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testified that her opinion was consistent with the Dictionary of Occupational Titles. An ALJ can
rely on the vocational expert’s testimony in finding that a position exists for the claimant. See
Leggett v. Chater, 67 F.3d 558, 565 (5th Cir. 1995). Plaintiff’s assertion of error lacks merit.
In this case, the ALJ applied the correct legal standards and the decision is supported by
substantial evidence. The Commissioner’s decision should be affirmed and the complaint should
be dismissed. It is therefore
ORDERED that the Commissioner’s final decision is AFFIRMED and that this social
security action is DISMISSED WITH PREJUDICE.

So ORDERED and SIGNED this
Sep 29, 2016

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