Cantu v. Colvin

Filing 22

MEMORANDUM OPINION affirming the decision of the Commissioner. (Ordered by Judge Sidney A Fitzwater on 10/28/2015) (Judge Sidney A Fitzwater)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
KATHY LYNNE CANTU,
Plaintiff,
VS.
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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§ Civil Action No. 3:15-CV-0267-D
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MEMORANDUM OPINION
Plaintiff Kathy Lynne Cantu (“Cantu”) brings this action under § 205(g) of the Social
Security Act, 42 U.S.C. § 405(g) (the “Act”), for judicial review of the final decision of the
Commissioner of Social Security (“Commissioner”) denying her claim for supplemental
security income (“SSI”) under Title XVI of the Act. For the reasons that follow, the
Commissioner’s decision is affirmed.
I
Cantu filed an application for SSI under Title XVI of the Act in May 2012, alleging
a disability beginning June 8, 2009 due to a back surgery and a bad neck, leg, and shoulder.
Cantu was born in September 1960, making her 51 years old on her application filing date.
The Commissioner denied Cantu’s application initially and on reconsideration. Following
a hearing, the administrative law judge (“ALJ”) found that Cantu is “not disabled.” The
Appeals Council denied Cantu’s request for review, and the ALJ’s decision became the final
decision of the Commissioner.

In making his decision, the ALJ followed the five-step sequential process prescribed
in 20 C.F.R. § 416.920(a). At step one, he found that Cantu has not engaged in substantial
gainful activity since May 10, 2012, her application filing date. At step two, the ALJ found
that Cantu has severe impairments of lumbar degenerative disc disease, cervical degenerative
disc disease, lumbar spine myofascitis, shoulder myofascitis, schizoaffective disorder, and
obsessive compulsive disorder. At step three, the ALJ found that Cantu’s impairments failed
to meet or equal a listed impairment for presumptive disability under 20 C.F.R. Part 404,
Subpart P, Appendix 1. The ALJ found that Cantu has the residual functional capacity
(“RFC”)
to lift and carry 20 pounds occasionally and 10 pounds
frequently, stand and walk for six hours out of an eight-hour
workday, and sit for six hours out of an eight-hour workday,
limited by occasional climbing ramps and stairs, stooping, and
crouching. [Cantu] is further limited to no climbing ladders, and
only occasional reaching with her non-dominant left upper
extremity. She retains the ability to understand, remember and
carry out simple tasks.
R. 15. At step four, the ALJ found that Cantu cannot perform her past relevant work as an
office manager (skilled). At step five, where the burden shifts to the Commissioner, the ALJ
found, based on the vocational expert’s (“VE’s”) testimony, that Cantu is capable of
performing other jobs existing in significant numbers in the national economy, such as a
children’s attendant, counter clerk, and investigator. Accordingly, the ALJ concluded that
Cantu had not been under a disability at any time between May 10, 2012 (the application
filing date) and January 27, 2014 (the date of the ALJ’s decision).

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Cantu maintains on four grounds that the Commissioner’s decision must be reversed:
the ALJ failed to include one of Cantu’s limitations in his RFC determination, did not
properly weigh the opinion evidence, failed to adequately assess Cantu’s credibility, and
posed an incomplete hypothetical question to the VE.
II
The court’s review of the Commissioner’s decision is limited to determining whether
substantial evidence supports the decision and whether the Commissioner applied the proper
legal standards to evaluate the evidence. Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995);
Martinez v. Chater, 64 F.3d 172, 173 (5th Cir. 1995) (per curiam). “The Commissioner’s
decision is granted great deference and will not be disturbed unless the reviewing court
cannot find substantial evidence in the record to support the Commissioner’s decision or
finds that the Commissioner made an error of law.” Leggett v. Chater, 67 F.3d 558, 564 (5th
Cir. 1995) (footnotes omitted).
“The court may not reweigh the evidence or try the issues de novo or substitute its
judgment for that of the [Commissioner].” Kane v. Heckler, 731 F.2d 1216, 1219 (5th Cir.
1984) (citations omitted). “If the Commissioner’s findings are supported by substantial
evidence, then the findings are conclusive and the Commissioner’s decision must be
affirmed.” Martinez, 64 F.3d at 173. “Substantial evidence is ‘such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.’” Greenspan v. Shalala,
38 F.3d 232, 236 (5th Cir. 1994) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).
“It is more than a mere scintilla, and less than a preponderance.” Spellman v. Shalala, 1 F.3d
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357, 360 (5th Cir. 1993) (citing Moore v. Sullivan, 919 F.2d 901, 904 (5th Cir. 1990) (per
curiam)). “To make a finding of ‘no substantial evidence,’ [the court] must conclude that
there is a ‘conspicuous absence of credible choices’ or ‘no contrary medical evidence.’”
Dellolio v. Heckler, 705 F.2d 123, 125 (5th Cir. 1983) (citation omitted). Even if the court
should determine that the evidence preponderates in the claimant’s favor, the court must still
affirm the Commissioner’s findings if there is substantial evidence to support these findings.
See Carry v. Heckler, 750 F.2d 479, 482 (5th Cir. 1985). The resolution of conflicting
evidence is for the Commissioner rather than for the court. See Patton v. Schweiker, 697
F.2d 590, 592 (5th Cir. 1983) (per curiam).
For purposes of social security determinations, “disability” means 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 has lasted or can be
expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §
423(d)(1)(A). In determining whether an applicant is disabled, the Commissioner follows
a five-step sequential analysis. See, e.g., Perez v. Barnhart, 415 F.3d 457, 461 (5th Cir.
2005). If the Commissioner finds that the claimant is disabled or is not disabled at any step
in the analysis, the analysis is terminated. Id. Under the five-step sequential inquiry the
Commissioner considers whether (1) the claimant is presently engaged in substantial gainful
activity, (2) the claimant’s impairment is severe, (3) the claimant’s impairment meets or
equals an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, (4) the impairment
prevents the claimant from doing past relevant work, and (5) the claimant cannot presently
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perform relevant work that exists in significant numbers in the national economy. See, e.g.,
Leggett, 67 F.3d at 563 n.2; Martinez, 64 F.3d at 173-74; 20 C.F.R. § 404.1520(a)(4). “The
burden of proof is on the claimant for the first four steps, but shifts to the [Commissioner]
at step five.” Bowling v. Shalala, 36 F.3d 431, 435 (5th Cir. 1994) (per curiam) (citing
Anderson v. Sullivan, 887 F.2d 630, 632-33 (5th Cir. 1989) (per curiam)). At step five, once
the Commissioner demonstrates that other jobs are available to a claimant, the burden of
proof shifts to the claimant to rebut this finding. Selders v. Sullivan, 914 F.2d 614, 618 (5th
Cir. 1990) (per curiam).
When determining the propriety of a decision of “not disabled,” this court’s function
is to ascertain whether the record considered as a whole contains substantial evidence that
supports the final decision of the Commissioner, as trier of fact. The court weighs four
elements of proof to decide if there is substantial evidence of disability: (1) objective medical
facts; (2) diagnoses and opinions of treating and examining physicians; (3) the claimant’s
subjective evidence of pain and disability; and (4) age, education, and work history.
Martinez, 64 F.3d at 174 (citing Wren v. Sullivan, 925 F.2d 123, 126 (5th Cir. 1991) (per
curiam)). “The ALJ has a duty to develop the facts fully and fairly relating to an applicant’s
claim for disability benefits.” Ripley, 67 F.3d at 557. “If the ALJ does not satisfy [this] duty,
[the] decision is not substantially justified.” Id. Reversal of the Commissioner’s decision
is appropriate, however, “only if the applicant shows that [she] was prejudiced.” Id. The
court will not overturn a procedurally imperfect administrative ruling unless the substantive
rights of a party have been prejudiced. See Smith v. Chater, 962 F. Supp. 980, 984 (N.D.
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Tex. 1997) (Fitzwater, J.).
III
The court turns first to Cantu’s contention that the ALJ failed to include in the RFC
determination the functional limitation resulting from an impairment that the ALJ found to
be severe at step two.
A
Cantu asserts that the ALJ erred in formulating her RFC by not accounting for her
limited ability to use her right, dominant arm for reaching. The ALJ found that Cantu’s
shoulder myofascitis was a severe impairment but limited her RFC to “only occasional
reaching with her non-dominant left upper extremity.” R. 15. Cantu maintains that the
evidence in the record shows that the resulting limitation of her shoulder myofascitis is not
confined to her left upper extremity, and that it supports a finding that her right upper
extremity is similarly limited. Cantu points to an evaluation by consultative examiner Harold
Nachimson, M.D., J.D. (“Dr. Nachimson”), in which he found that her right shoulder had
only 75% range of motion; a report that Cantu made to an examining nurse practitioner that
she had swelling in her right arm, with shooting pain down her hand; and an observation by
Andrew Kubin (“Kubin”), a physician’s assistant, that she had right-side neck pain radiating
into her posterior shoulder. Cantu maintains that this evidence supports the finding that she
experienced lasting functional impairment in her right upper extremity as well as her left.
The Commissioner responds that the record does not support this limitation. She
maintains that Dr. Nachimson was the only physician to find a limitation in Cantu’s right
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arm, and that even he found that Cantu retained 75% range of motion and full strength. The
Commissioner also contends that 12 examination notes in the record explicitly state that
Cantu demonstrated no abnormalities in her arms. In response to Cantu’s assertion that she
complained to a nurse practitioner of right shoulder pain, the Commissioner posits that the
nurse practitioner found normal range of motion, gait, muscle strength, and muscle tone in
both arms. Finally, the Commissioner asserts that Cantu cannot meet her burden of
demonstrating a disabling limitation merely by stating that she complained of symptoms or
sought treatment. See Hames v. Heckler, 707 F.2d 162, 165 (5th Cir. 1983) (per curiam); see
also Falco v. Shalala, 27 F.3d 160, 163 (5th Cir. 1994).
B
The court holds that the ALJ did not reversibly err by failing to include in the RFC
determination a limitation on Cantu’s ability to use her right, dominant arm for reaching.
There is “no inherent contradiction in finding that [Cantu’s] [shoulder myofascitis] is severe
at step two and also finding that [she] has no exertional limitations on working” with respect
to her right shoulder. Boothe v. Colvin, 2013 WL 3809689, at *6 (N.D. Tex. July 23, 2013)
(Fitzwater, C.J.) (“Because the ALJ determines whether an impairment is severe without
regard to the individual’s age, education, or work experience, finding that an impairment is
severe does not of itself mean that the impairment affects the claimant’s ability to work.”).
It was not contradictory for the ALJ to find that although the effect of shoulder myofascitis
on both of Cantu’s shoulders was a severe impairment, her left arm is more limited than her
right arm. Moreover, there is substantial evidence in the record to support this finding.
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The ALJ noted that Dr. Nachimson—the only physician who found any limitation in
Cantu’s right arm—had diagnosed Cantu with, among other things, “shoulder myofascitis
(left worse than right).” R. 16 (emphasis added). Dr. Nachimson also found that Cantu
retained 75% range of motion in her right shoulder and 100% strength in her right upper
extremity, but only 25-30% range of motion in her left shoulder and 80% strength in her left
upper extremity. See Hames, 707 F.2d at 165 (“The mere presence of some impairment is
not disabling per se. Plaintiff must show that she was so functionally impaired by her back
trouble that she was precluded from engaging in any substantial gainful activity.”). The ALJ
also noted that Cantu had “reported right shoulder pain,” but that an “[e]valuation revealed
normal range of motion, gait and muscle strength.” R. 17. Additionally, physician assistant
Kubin found that, although Cantu reported right-side neck pain radiating into her posterior
shoulder, she had normal range of motion, no laxity in her shoulder, and an overall normal
musculoskeletal system. Numerous examination notes in the record explicitly state that
Cantu had no abnormalities with respect to her right shoulder.
Moreover, the ALJ limited Cantu’s RFC to “lift[ing] and carry[ing] 20 pounds
occasionally and 10 pounds frequently” and “no climbing ladders,” which is consistent with
limitations in both arms. See Williams v. Astrue, 2010 WL 517590, at *4 (N.D. Tex. Feb.
11, 2010) (Fitzwater, C.J.) (holding, inter alia, that ALJ had considered plaintiff’s obesity
when formulating RFC because ALJ “limited [plaintiff’s] RFC to ‘light capacity’ work,
which would likely be consistent with any obesity-related limitation”). Thus the ALJ’s
decision demonstrates that he considered limitations on Cantu’s ability to use her right arm
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when formulating her RFC, and substantial evidence supports his decision.
IV
Cantu asserts that the ALJ failed to weigh any of the opinion evidence in the record.
A
Cantu contends on two grounds that the ALJ did not adequately weigh medical
opinion evidence, meaning, in turn, that his RFC determination is not supported by
substantial evidence. First, she posits that the ALJ should have afforded considerable weight
to the opinion of therapist Sandra Hensley, Q.M.H.P., B.S. (“Hensley”), because of her
relationship with Cantu at the clinic, the consistency of her opinion with the evidence in the
record, and her specialization as a qualified mental health professional.1 Cantu argues that
the ALJ is not allowed to ignore Hensley’s opinion simply because she is not an “acceptable
medical source.” See Titles II and XVI: Considering Opinions and Other Evidence from
Sources Who Are Not “Acceptable Medical Sources” in Disability Claims; Considering
Decisions on Disability by Other Governmental and Nongovernmental Agencies, SSR 0603p, 2006 WL 2329939, at *1-3 (S.S.A. 2006) (hereinafter “SSR 06-03p”). Second, Cantu
maintains that the ALJ erred by not discussing and explaining the weight he assigned to the

1

The ALJ also discounted the opinion of chiropractor Jack LoCascio, D.C. (“Dr.
LoCascio”), because “[h]is opinion is not supported by other medical evidence of record set
forth in detail herein,” and “[his] office indicated that there were no records found for
[Cantu].” R. 16. Cantu does not appear to argue that the ALJ should have afforded more
weight to Dr. LoCascio’s opinion. The court concludes, however, that the analysis used to
determine whether the ALJ erred by discounting Hensley’s opinion likewise applies to Dr.
LoCascio’s opinion, and, for similar reasons set out in infra at § IV(B), the court holds that
the ALJ did not err by assigning little weight to the opinion of Dr. LoCascio.
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opinions of state agency non-examining medical consultants, John Durfor, M.D. (“Dr.
Durfor”), and Leela Reddy, M.D. (“Dr. Reddy”), which the ALJ appears to have relied on
in determining the RFC. See 20 C.F.R. § 416.927(e)(2). Cantu asserts that this failure,
especially concerning Dr. Durfor, is reversible error because it prevents a reviewer of the
ALJ’s decision from determining whether he improperly afforded controlling weight to a
non-treating source.
The Commissioner responds that Hensley is not an “acceptable medical source” under
20 C.F.R. § 416.913(a), and that, while the regulations allow an ALJ to consider evidence
from “other sources,” such sources are not entitled to any particular deference. See 20 C.F.R.
§ 416.913(d). The Commissioner asserts that the ALJ properly followed the regulations by
considering the check-box form that Hensley completed and then discounting Hensley’s
opinion because her assessment was contradicted by evidence in the record, and she only saw
Cantu once for an initial consultation. The Commissioner points out that the ALJ has
discretion to determine the credibility of the medical reports in the record. See Moore v.
Sullivan, 919 F.2d 901, 905 (5th Cir. 1990).
Regarding the state agency non-examining medical opinions, the Commissioner
responds that an ALJ is not required to follow formalistic rules in articulating the evidence
or even discussing all of the evidence accepted or rejected, and an ALJ must articulate
reasons for rejecting a claimant’s subjective complaints of pain only when the evidence
clearly favors the claimant. See Falco, 27 F.3d at 163. The Commissioner maintains that
the ALJ did not have to discuss Drs. Durfor’s and Reddy’s opinions because they disfavor
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Cantu’s claim. See id. Alternatively, the Commissioner contends that, assuming arguendo
that the ALJ erred by not discussing these opinions, any failure is harmless error because
both opinions support a non-disability determination. The Commissioner points out that Dr.
Durfor concluded that Cantu retained the physical RFC to perform a limited range of light
work, which is consistent with the ALJ’s determination, and Dr. Reddy found that Cantu’s
mental impairments caused marked limitations in her ability to understand, remember, and
carry out detailed instructions, which the ALJ accounted for by limiting Cantu to simple
work.
B
The ALJ did not reversibly err by discounting Hensley’s opinion. As a therapist,
Hensley is not an “acceptable medical source,” and, as such, her opinion cannot be
considered a “medical opinion,” nor can it establish the existence of a “medically
determinable impairment.” 20 C.F.R. §§ 404.1513(a) (listing “acceptable medical sources”),
404.1527(a)(2) (explaining that “[m]edical opinions are statements from . . . acceptable
medical sources”), 416.913(a) (stating that “[w]e need evidence from acceptable medical
sources to establish whether you have a medically determinable impairment(s)”); see also
SSR 06-03p, at *2 (“Information from these ‘other sources’ cannot establish the existence
of a medically determinable impairment.”). Hensley’s opinion, however, can be used in
other ways, such as “provid[ing] insight into the severity of the impairment(s) and how it
affects [Cantu’s] ability to function.” SSR 06-03p, at *2. “[T]he Act requires [the ALJ] to
consider all of the available evidence in the individual’s case record,” which includes
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opinions from non-acceptable medical sources. Id. at *4. When assigning weight to
Hensley’s opinion, the ALJ must consider certain factors, such as “[h]ow long the source has
known and how frequently the source has seen the individual”; “[h]ow consistent the opinion
is with other evidence”; and “[w]hether the source has a specialty or area of expertise related
to the individual’s impairment(s).” Id. at *4-5.
The court disagrees with Cantu’s contention that the ALJ ignored or discounted
Hensley’s opinion simply because she was not an acceptable medical source. The ALJ
recited Hensley’s opinion, stated that he had “considered the opinion,” and concluded that
“[h]er opinion [was] not supported by other medical evidence of record.” R. 19; see, e.g.,
Cain v. Barnhart, 193 Fed. Appx. 357, 362 (5th Cir. 2006) (per curiam) (discounting opinion
of registered nurse that was not fully supported by the record). The ALJ noted that Hensley
“stated [Cantu] had marked limitation in [her] ability to . . . understand and remember very
short and simple instructions” and “maintain attention and concentration for extended
periods,” R. 19, but a nurse practitioner at Hensley’s clinic found that “[Cantu’s] memory
was intact” and “[h]er concentration was good,” R. 18; treating physician Mehmooda Nasir,
M.D., found that “[Cantu’s] memory and concentration were intact,” R. 19; and other
medical professionals reached similar conclusions, R. 17. The ALJ also stated that he had
“considered opinion evidence in accordance with the requirements of 20 CFR 416.927 and
SSRs 96-2p, 96-5p, 96-6p and 06-3p.” R. 20. Finally, the record shows that Hensley saw
Cantu only once, which provides additional support for discounting her opinion. See SSR
06-03p, at *4 (explaining that one factor the ALJ applies to opinion evidence from “other
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sources” is “[h]ow long the source has known and how frequently the source has seen the
individual”). The court holds that the ALJ followed the regulations in considering Hensley’s
opinion and permissibly exercised his discretion in assigning it little weight. See Newton v.
Apfel, 209 F.3d 448, 455 (5th Cir. 2000) (quoting Paul v. Shalala, 29 F.3d 208, 211 (5th Cir.
1994)) (“‘The ALJ is free to reject the opinion of any physician when the evidence supports
a contrary conclusion.’”); Herring v. Astrue, 788 F.Supp.2d 513, 521 (N.D. Tex. 2011)
(Fitzwater, C.J.) (quoting Stearns v. Astrue, 2010 WL 1072828, at *6 (N.D. Tex. Mar. 24,
2010) (“‘[T]he task of weighing the evidence is the province of the ALJ,’ and ‘[t]he relative
weight to be given these pieces of evidence is within the ALJ’s discretion.’”).
C
The court holds that the ALJ erred by not explaining the weight he assigned to the
opinions of state agency non-examining consultants, Drs. Durfor and Reddy. See Policy
Interpretation Ruling Titles II and XVI: Consideration of Administrative Findings of Fact By
State Agency Medical and Psychological Consultants at the Administrative Law Judge and
Appeals Council Level of Review, SSR 96-6p, 1996 WL 374180, at *1-2 (S.S.A. 1996)
(hereinafter “SSR 96-6p”) (“[ALJs] and the Appeals Council may not ignore [state agency
consultants’] opinions and must explain the weight given to these opinions in their
decisions.”); see also Herring, 788 F.Supp.2d at 520 (citing SSR 96-6p, at *1-2)
(“[A]lthough ALJs are not bound by any findings made by state agency medical or
psychological consultants, they must consider such findings as opinion evidence.”). But this
error is harmless, and therefore not reversible, “because the ALJ’s conclusions are entirely
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consistent with [Drs. Durfor’s and Reddy’s] opinions.” Herring, 788 F.Supp.2d at 523
(assuming arguendo that ALJ erred by not discussing opinion of state agency non-examining
medical source, and holding that error was harmless “because the ALJ’s conclusions [were]
entirely consistent with [the state agency non-examining medical source’s] opinion”). Dr.
Reddy found that Cantu was not significantly limited in her ability to understand, remember,
and carry out short and simple instructions, but she was markedly limited in her ability to
understand, remember, and carry out detailed instructions. Similarly, the ALJ found that
“[Cantu] retains the ability to understand, remember and carry out simple tasks.” R. 15. Dr.
Durfor found that Cantu could occasionally climb stairs and ramps, stoop, and crouch and
could never climb a ladder. The ALJ likewise determined that Cantu is “limited by
occasional climbing ramps and stairs, stooping, and crouching” and “is further limited to no
climbing ladders.” Id. Dr. Durfor also found that Cantu’s left shoulder is limited to
occasional reaching due to shoulder pain and myofascitis with limitations in range of motion,
but her right shoulder is unlimited, noting that Cantu retained 75% range of motion in her
right shoulder and 100% strength in her right upper extremity. These findings are identical
to those of Dr. Nachimson, Cantu’s treating physician, which the ALJ discussed at great
length and relied on to find that Cantu has, among other things, shoulder myofascitis and a
limitation in her use of her left arm. Because the court can discern from the record that the
ALJ considered and accepted the opinions of Drs. Durfor and Reddy, in conjunction with the
opinions of treating sources and other evidence discussed in the decision, the ALJ did not
commit reversible error by failing to discuss Drs. Durfor’s and Reddy’s opinions. See
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Herring, 788 F.Supp.2d at 523 (concluding that “although the ALJ did not discuss every
piece of potentially relevant evidence in each step of his analysis, this is not required”).
V
Cantu maintains that the ALJ failed to properly evaluate her credibility.
A
Cantu posits that the ALJ’s determination that she was not credible with respect to the
intensity, persistence, and limiting effects of her symptoms is not supported by substantial
evidence. She maintains that despite the ALJ’s obligation to comply with the Policy
Interpretation Ruling Titles II and XVI: Evaluation of Symptoms in Disability Claims:
Assessing the Credibility of an Individual’s Statements, SSR 96-7p, 1996 WL 374186, at *2
(S.S.A.1996) , his findings are insufficient to find her not credible. The ALJ stated that the
“record reflects that [Cantu] has neck and back pain,” but “physical findings have been
minimal and [Cantu] has reported that her medications help reduce her pain.” R. 21. Cantu
maintains that this statement is “too vague and excludes the subtleties of [her] actual
testimony in context.” P. Br. 16. She also asserts that she testified that her lower back pain
bothers her all the time, even when she regularly takes pain medication; that, even with
medication, her lower back pain never gets below a four on a ten point scale; and that she
took Ibuprofen 800 milligrams, naproxen, tramadol, and hydrocodone each day for her pain
in order to even achieve that level of relief. Finally, relying on the observations of Dr.
Nachimson and physician assistant Kubin, Cantu argues that the record evidence shows more
than minimal findings regarding her back and neck pain.
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The Commissioner responds that the ALJ’s determination that Cantu’s subjective
complaints were not fully credible is supported by evidence in the record.

The

Commissioner contends that the ALJ discussed the medical evidence, both favorable and
unfavorable to Cantu, as well as Cantu’s subjective complaints and testimony, and he
correctly relied on examining sources (who consistently found that Cantu had no
musculoskeletal abnormalities) to determine that her complaints were not credible to the
extent that they were inconsistent with the RFC.
B
The court holds that the ALJ’s credibility determination is sufficiently explained and
supported by substantial evidence. Credibility determinations are generally left to the
discretion of the ALJ, and the court will not overturn such a decision unless it is
impermissibly vague or unsupported by the record. See McGowan v. Astrue, 2009 WL
2614487, at *4 (N.D. Tex. Aug. 25, 2009) (Fitzwater, C.J.); see also R.M.C. v. Astrue, 2011
WL 1792924, at *10 (N.D. Tex. May 11, 2011) (Fitzwater, C.J.) (citing Villa v. Sullivan, 895
F.2d 1019, 1024 (5th Cir. 1990)) (concluding that so long as the ALJ’s decision is supported
by substantial evidence, his determination of credibility is entitled to deference). In
reviewing for substantial evidence, this court “[does] not reweigh the evidence or try the
issues de novo,” but it seeks to determine whether there “is more than a mere scintilla” of
evidence. Spellman, 1 F.3d at 360 (citations and internal quotations omitted).
The ALJ found that Cantu’s allegations regarding the intensity and persistence of her
pain and the limiting effects of her symptoms, beyond those encompassed in the RFC, were
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not credible because, while Cantu “has neck and back pain[,] . . . physical findings have been
minimal and [Cantu] has reported that her medications help reduce her pain.” R. 21. In
making this determination, the ALJ noted that he had “considered all symptoms and the
extent to which these symptoms can reasonably be accepted as consistent with the objective
medical evidence and other evidence, based on the requirements of 20 CFR 416.929 and
SSRs 96-4p and 96-7p.” Id. at 20. The ALJ also pointed to specific evidence in the record
supporting his credibility findings. He discussed two pieces of medical evidence that were
inconsistent with Cantu’s subjective complaints: first, “[Cantu’s] cervical X-ray did show
some significant stenosis at C4-5 but her physical examinations at Hope Clinic reported that
her neck was supple and the review of systems showed no complaints with respect to her
neck and back (Muscle ache-no);” and, second, “[t]here was a note for a referral to
orthopedics on a visit in June 2013 but again there were no specific complaints noted with
respect to pain for that visit.” Id. at 21. The ALJ also detailed Cantu’s complaints and stated
that “[Cantu] testified that she takes multiple medications for her pain, which help some.”
Id. The ALJ properly considered and discussed medical opinions and evidence, in addition
to Cantu’s testimony, and exercised his discretion in finding Cantu’s subjective complaints
not fully credible.

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VI
Finally, Cantu contends that the VE’s testimony was based on an incomplete
hypothetical question.
A
Cantu maintains that the ALJ’s step five finding—that jobs exist in significant
numbers in the national economy that she can perform—is not supported by substantial
evidence because the ALJ made this determination by relying on the VE’s testimony, which
was based on an incomplete hypothetical. Cantu asserts that this is so because the ALJ used
the RFC determination in the hypothetical, and the RFC determination was not supported by
substantial evidence because the ALJ failed to include a limitation in her ability to use her
right arm, weigh opinion evidence, and adequately assess her credibility. As a result, Cantu
contends that the hypothetical failed to include the full range of limitations imposed by her
impairments. See Collins v. Astrue, 2010 WL 4282082, at *4 (N.D. Tex. Sept. 29, 2010)
(Roach, J.) (quoting Bowling v. Shalala, 36 F.3d 431, 436 (5th Cir. 1994) (per curiam)) (“‘A
hypothetical question posed to a vocational expert must . . . incorporate reasonably all
disabilities of the claimant recognized by the ALJ[.]’”). Cantu also maintains that the ALJ
should have relied on separate hypotheticals that he posed to the VE based on Hensley’s and
Jack LoCascio, D.C.’s (“Dr. LoCascio’s”) opinions, and on which the VE testified that there
would be no jobs in the national economy that Cantu would be able to perform.
The Commissioner responds that the ALJ posed a valid hypothetical to the VE
because the question included all of Cantu’s impairments that were supported by the

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evidence and recognized by the ALJ. See Masterson v. Barnhart, 309 F.3d 267, 273 (5th Cir.
2002).
B
The court concludes that the hypothetical the ALJ posed to the VE was complete. The
court has already held that, in formulating the RFC, the ALJ sufficiently considered Cantu’s
ability to use her right arm, weighed the opinion evidence, and assessed Cantu’s credibility.
Because the court already concluded that the ALJ properly exercised his discretion in
discounting Hensley’s and Dr. LoCascio’s opinions, the ALJ did not err by disregarding the
VE’s testimony responding to hypotheticals based on their opinions. The ALJ was only
obligated to reasonably incorporate in his hypothetical all of Cantu’s disabilities that he
recognized. See Boyd v. Apfel, 239 F.3d 698, 707 (5th Cir. 2001). Because the ALJ’s
hypothetical incorporated his RFC determination, the hypothetical was complete, and the
ALJ’s step five finding is supported by substantial evidence.

*

*

*

For the reasons explained, the Commissioner’s decision is
AFFIRMED.
October 28, 2015.

_________________________________
SIDNEY A. FITZWATER
UNITED STATES DISTRICT JUDGE

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