Patterson v. Colvin

Filing 18

MEMORANDUM OPINION AND ORDER: The Commissioners decision is AFFIRMED. (Ordered by Magistrate Judge Irma Carrillo Ramirez on 3/30/2017) (epm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
MICHAEL WAYNE PATTERSON,
Plaintiff,
v.
NANCY A. BERRYHILL, ACTING,
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,
Defendant.

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Civil Action No. 3:16-CV-204-BH

MEMORANDUM OPINION AND ORDER
Pursuant to the consent of the parties and the order of reassignment dated March 28, 2016,
this case has been transferred for the conduct of all further proceedings and the entry of judgment.
(doc. 13.) Before the Court is Plaintiff’s Brief in Support of Plaintiff’s Appeal of Denial of Claim
for Social Security, filed March 30, 2016 (doc. 15); Defendant’s Response Brief, filed April 29, 2016
(doc. 16); and Plaintiff’s Brief in Response to Defendant’s Brief, filed May 2, 2016 (doc. 17). Based
on the relevant findings, evidence, and applicable law, the Commissioner’s decision is AFFIRMED.
I. BACKGROUND1
A.

Procedural History
Michael Wayne Patterson (Plaintiff) seeks judicial review of a final decision by the

Commissioner of Social Security (Commissioner)2 denying his claim for disability and disability
insurance benefits (DIB) under Title II of the Social Security Act. On January 24, 2014, he applied
for disability and DIB, alleging disability beginning February 23, 2011. (R. at 216-17.) His claim
1

2

The background information comes from the transcript of the administrative proceedings, which is designated as “R.”

At the time of the initial filing of this appeal, Carolyn W. Colvin was the Acting Commissioner of the Social Security
Administration, but she was succeeded by Nancy A. Berryhill beginning January 20, 2017.

was initially denied on March 24, 2014, and upon reconsideration on July 10, 2014. (R. at 145-46,
151-53.) On July 14, 2014, he requested a hearing before an administrative law judge (ALJ). (R.
at 154-55.) He appeared and testified at a hearing on October 5, 2015. (R. at 29-71.) The ALJ
denied Plaintiff’s applications on November 10, 2015, finding him not disabled. (R. at 24.) Plaintiff
timely appealed the ALJ’s decision to the Appeals Council, and the Appeals Council adopted the
ALJ’s decision on January 14, 2016. (R. at 1-4, 9.) Plaintiff timely appealed the Appeals Council’s
decision under 42 U.S.C. § 405(g).
B.

Factual History
1.

Age, Education, and Work Experience

Plaintiff was born on May 2, 1959, and was 56 years old at the time of the hearing before the
ALJ. (R. at 23, 32.) He graduated from high school and had past relevant work as a an industrial
cleaner. (R. at 23.)
2.

Medical Evidence

On August 5, 2011, Plaintiff presented to the Parkland Memorial Hospital (Parkland)
emergency room with a chief complaint of hemorrhoids, which he had reportedly experienced for
“some time.” (R. at 418.) Plaintiff also reported that he had rectal surgery for hemorrhoids in 2005.
(Id.) After a physical examination, Plaintiff was treated for constipation and prescribed Anusol for
his hemorrhoids. (R. at 419.) He returned to the emergency room on February 17, 2012, with a
chief complaint of dental pain and cough. (R. at 420-21.) Plaintiff’s physical examination revealed
mild palpable tenderness of the gum and tooth loss without vestibular tenderness. (R. at 422.) He
was fully oriented, had full range of motion and a normal mood, affect, and behavior, and his
judgment and thought content were also normal. (Id.) Plaintiff was diagnosed with a toothache,

2

gingiva disorder, acute upper respiratory infection of an unspecified site, acute pharyngitis,
unspecified disorder of the teeth and supporting strictures, and unspecified gingival and periodontal
disease. (R. at 424.) He was prescribed Amoxicillin, Benzonatate, Atarax, and Naproxen; given
dental resources; and discharged that day. (R. at 423.)
On May 25, 2012, Plaintiff was admitted to Parkland’s emergency room with a chief
complaint of headache and abdominal pain. (R. at 429-30.) He described his abdominal pain as
intermittent and occurring twice a month. (R. at 635.) Plaintiff’s physical examination was normal,
and a posterioranterior and lateral chest x-ray showed no significant radiographic abnormality. (R.
at 432, 596.) He was prescribed Hydrocodone-Acetaminophen as needed and Ranitidine, and
discharged home that day. (R. at 432, 439.)
Plaintiff returned to Parkland’s emergency room on June 27, 2012, with a chief complaint
of abdominal pain. (R. at 446-47.) His physical examination was normal. (R. at 448.) He was
started on Amlodipine and referred to his primary care physician for blood pressure management
and a colonoscopy. (R. at 449.) He returned on June 31, 2012, with a chief complaint of a headache
and breast pain. (R. at 454-55.) Plaintiff described the pain as “dull.” (R. at 643.) He was
prescribed Tramadol and instructed to follow up with his primary care physician. (R. at 457.)
On December 31, 2012, Plaintiff had a psychiatric diagnostic interview exam with Patricia
Newton, M.D., at Metrocare Services (Metrocare). (R. at 348.) Plaintiff reported that he began to
hear voices and suffer from paranoid delusions in 1984, and he had been paranoid to some degree
ever since. (R. at 349.) The voices were not bothersome, but that he had tactile and visual
hallucinations that “irritate[d]” him considerably. (Id.) He also had mood swings, he was bipolar
and somewhat euphoric, his mind jumped from topic to topic, and he showed poor judgment. (Id.)

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He also suffered from depression and slept poorly. (Id.) Dr. Newton noted that Plaintiff had used
illegal drugs (marijuana and cocaine) and alcohol from the 1980s until 1996. (Id.) She diagnosed
chronic paranoid psychosis with bipolar mood disturbance. (R. at 351.)
Plaintiff began counseling sessions with Christopher Keener, LPC, at Metrocare, on January
7, 2013. Mr. Keener noted that Plaintiff seemed positive and upbeat, he engaged well, and his goal
was to find employment. (R. at 354.) He continued to have regular sessions with Mr. Keener until
October 7, 2013. (R. at 354, 362, 369, 373, 375, 382, 383, 390, 394, 403.) During that time, Mr.
Keener regularly reported that Plaintiff was appropriately dressed, his thoughts were organized, his
mood was good or euthymic, and he was fully oriented. (R. at 362, 366, 373, 379.) On March 25,
2013, Plaintiff stated that he was “fine” and denied anxiety, nervousness, racing thoughts, mood
swings, agitation, anger, crying spells, restlessness, depressive symptoms, difficulty concentrating,
insomnia, anhedonia, auditory or visual hallucinations, or suicidal or homicidal thoughts. (R. at
367.) On May 6, 2013, Plaintiff stated he did not go to church, like his family wanted, because he
was “too lazy.” (R. at 373.) He was also having problems with his job search because of his
criminal record. (Id.) During his counseling sessions with Mr. Kenner, Plaintiff also reported no
problems eating or sleeping. (R. at 362, 375, 379, 383.) On August 22, 2013, Plaintiff reported to
Mr. Kenner that his “goal” was to obtain SSI and then save money to get a place of his own. (R. at
390.) At his last appointment with Mr. Kenner on October 7, 2013, Plaintiff told the counselor that
everything in his life was stable, and that he would wait until one year after filing his appeal for SSI
before he would begin trying to work. (R. at 403.)
On February 13, 2013, Plaintiff met with Humaira Moten, M.D., at Parkland to establish
care. (R. at 467.) Dr. Moten noted that Plaintiff had been diagnosed with gastroesophageal reflux

4

disease (GERD) and depression. (R. at 467.)
On March 21, 2013, Plaintiff was admitted to Parkland’s emergency room with for dental
pain and pharyngitis. (R. at 472.) A physical examination revealed tooth decay. (R. at 473.) He
described the pain as moderate with a severity of 8/10. (R. at 648.) Plaintiff was prescribed Arnoxil
and Loratadine, and referred to a dentist. (R. at 474.) He returned to the emergency room for “a
check up” on June 10, 2013. (R. at 483.) He reported a history of bilateral hand and foot pain, a
toothache, and chronic abdominal pain, but no pain was present during his “check up.” (Id.) His
abdominal pain was relieved with over-the-counter Zantac. (Id.) He was negative for myalgia, back
pain, and joint pain. (R. at 483, 485.) A psychiatric review for Plaintiff was normal. (R. at 486.)
He was prescribed Naproxen, referred to his primary care physician, and discharged. (Id.)
On December 10, 2013, Plaintiff returned to Parkland’s emergency room for a medication
refill. (R. at 659.) He reported no other complaints and denied any chest pain, dyspnea, palpitations,
or abdominal pain. (Id.) Plaintiff was negative for any neck and back pain. (R. at 660.)
On December 27, 2013, Plaintiff met with Dr. Newton at Metrocare. (R. at 413.) She noted
that Plaintiff had a “few” symptoms and occasionally heard voices, but he was satisfied with how
he felt. (Id.) His bipolar symptoms were manageable on the current medications, and he did not
want to change his medications. (R. at 414.) He had follow ups with Metrocare every few months
until November 24, 2014. (R. at 413, 514, 522, 567, 573, 578, 581, 585, 588, 726.)
On February 17, 2014, Plaintiff presented to Parkland’s emergency room with nasal
congestion and headaches. (R. at 508.) He reported recurrent headaches in the frontal region, which
he described as a sharp, moderate pain. (R. at 509.) His physical examination revealed a normal
range of motion. (R. at 510.) He was discharged the same day. (R. at 507.)

5

On March 18, 2014, medical consultant Patty Rowley, M.D., completed a case analysis and
found that Plaintiff’s physical impairments were non-severe. (R. at 121.) On July 8, 2014, medical
consultant Kelvin Samaratunga, M.D., found that Plaintiff’s physical impairments were non-severe,
and that he had no significant functional limitations. (R. at 134-34.)
On March 20, 2014, Matthew Turner, Ph.D., considered Plaintiff’s mental impairments and
the paragraphs B and C criteria. (R. at 121-22.) Dr. Turner found that Plaintiff’s affective disorder
moderately affected his activities of daily living, maintenance of social functioning, and his
concentration, persistence, and pace. (R. at 122.) He opined that Plaintiff was able to understand,
remember, and carry out detailed but non-complex instructions, make important decisions, attend
and concentrate for extended periods, interact with others, accept instructions and respond to
changes in work settings. (R. at 125.) On July 7, 2014, Susan Thompson, M.D., opined that
Plaintiff retained the ability to understand, remember and carry out simple instructions, make simple
decisions, concentrate for extended periods, and interact with others as well as respond to changes
in the work setting. (R. at 138.) He was capable of simple and repetitive tasks. (Id.)
On April 17, 2014, Plaintiff went to Parkland for a follow up on his GERD, hypertension,
and seasonal allergies. (R. at 527.) He reported no complaints regarding his hypertension or issues
associated with his GERD. (Id.) He also reported having back pain for several years but no trauma
or other symptoms related to back pain. (Id.) He had a normal range of motion, was fully oriented,
and had a normal mood and affect. (R. at 529.) Plaintiff’s Zantac prescription was discontinued and
he was started on Protonix. (R. at 530.) He was also prescribed a low sodium diet. (Id.)
On June 11, 2014, Plaintiff had a consultative physical examination with Thomas Pfeil, M.D.
(R. at 535.) He reported hand and foot pain, low back pain, headaches, abdominal pain, and

6

hypertension. (Id.) Plaintiff also reported that his low back pain began in 2010, but denied radiation
of the symptom, attending physical therapy, or using pain-relieving medication. (Id.) He took
medication for high blood pressure, which was 148/87 at the examination. (R. at 535-36.) Dr. Pfeil
noted that Plaintiff was alert, fully oriented, and cooperative, and that his memory and concentration
were good. (R. at 536.) He found no tenderness of the cervical or lumbar spine, a normal gait with
no unsteadiness, a full range of motion in all joints (including the lumbar spine with not evidence
of tenderness or inflamation), and the ability to stand on toes and heels. (R. at 537-38.) Imaging
of Plaintiff’s left hand noted minimal degenerative hypertrophy and a small cyst. (R. at 540.)
Imaging of the lumbar spine revealed spondylolisthesis, mild degenerative spondylosis from L3 to
L5, severe degenerative facet joint hypertrophy, and moderate degenerative joint hypertrophy at L2
to S1. (Id.) Dr. Pfeil opined that Plaintiff was limited in bending and stooping repetitively, lifting
and carrying more than 20 to 30 pounds, and sitting, standing, or walking more than one hour
without changing position. (R. at 537-38.) He opined that Plaintiff’s maximum range of motion for
his back was a 25 degree extension and 90 degree flexion, and that he had a lateral (flexion) of 25
degrees on the left and right. (R. at 542.)
Arthur W. Joyce, Ph.D., completed an interview and mental status evaluation for Plaintiff
on June 17, 2014, whose chief complaint was “Not able to work because Schizophrenia and hearing
voices and things.” (R. at 546.) He gave vague reports regarding the usefulness of his treatment at
Metrocare. (Id.) Plaintiff had been hospitalized at Green Oaks for 24 hours in 2012, because the
“voices got worse” and he “was feeling bad.” (Id.) His symptoms included hearing voices, feeling
sad and nervous, and poor sleep. (Id.) Plaintiff was cooperative but mildly restless, demonstrated
a paranoid thought process, experienced daily auditory command hallucinations, was fully oriented,

7

and had problems with accurately encoding information and deficient memory. (R. at 548.) He had
a coherent, logical, and goal-directed thought process, a negative and dysphoric mood, issues with
concentration, and poor judgment and insight. (Id.) Dr. Joyce’s prognosis was guarded. (R. at 549.)
On June 17, 2014, Plaintiff was admitted to Parkland with a chief complaint of seasonal
allergic rhinitis and chronic nasal congestion. (R. at 564.) He had a CT maxillofacial exam without
contrast. (R. at 552, 561-63, 596.) It showed minimal mucosal thickening involving the left
maxillary sinus and periodontal disease, and he was discharged home. (R. at 552, 564.) On July 31,
2014, Plaintiff had a follow-up appointment at Parkland for his hypertension, back pain, and GERD.
(R. at 670.) He reported no complaints and denied any side effects of his medication. (Id.)
On September 8, 2014, Dr. Newton completed a Medical Assessment of Ability to Do WorkRelated Activities (Mental) for Plaintiff. (R. at 554.) She noted that he suffered from appetite and
sleep disturbances, paranoia, low energy, chronic disturbance of mood, psychomotor
agitation/retardation, difficulty thinking/confusion, racing thoughts, chronic depression,
hallucinations/delusions, and anger outbursts. (R. at 555.) Dr. Newton diagnosed schizoaffective
disorder and alcohol and cannabis dependance, and she assessed a GAF score of 50. (R. at 555.)
She opined that Plaintiff had some loss of his ability to maintain his personal appearance and
substantial loss of his ability apply commonsense understanding to carry out detailed but uninvolved
written or oral instructions, maintain attention/stay on task for an extended period, ask simple
questions or request assistance, and cope with normal work stress without exacerbating
pathologically based symptoms in regular competitive employment. (R. at 554-55.) She further
opined that he had extreme loss of ability to perform the following activities in regular, competitive
employment and in a sheltered work setting: apply commonsense understanding to carry out simple

8

one or two-step instructions, demonstrate reliability by maintaining regular attendance and being
punctual within customary tolerances, maintain concentration for an extended period, perform at a
consistent pace without an unreasonable number and length of rest period/breaks, act appropriately
with the general public, make simple work-related decisions, accept instructions and respond
appropriately to criticism from supervisors, get along with coworkers or peers without unduly
distracting them or exhibiting behavioral extremes, behave in an emotionally stable manner, respond
appropriately to changes in a routine work setting, and finish a normal work week without
interruption from psychologically-based symptoms. (Id.)
On November 12, 2014, Plaintiff had a colonoscopy at Parkland. (R. at 597-98, 672.) His
exam was normal except for a benign-appearing pedunculated polyp in his rectum, which was
removed. (R. at 597-98.)
Plaintiff returned to Parkland on December 17, 2014, for headaches and arthritis. (R. at 678.)
It was noted that Tylenol PM “correct[ed]” Plaintiff’s insomnia, and that Pantoprazole controlled
his GERD. (Id.) Plaintiff was fully oriented and had normal range of motion, reflexes, and mood
and affect. (R. at 680.)
Plaintiff went to Parkland’s emergency room on February 19, 2015, with a chief complaint
of daily headaches. (R. at 681-82.) He described the headaches as a dull, gradual pain in the front
of his head, which had occurred since 2010. (R. at 682.) A CT brain without contrast was ordered
and conducted later that day. (R. at 599, 681.) Plaintiff’s brain and ventricles were normal in
appearance without evidence of mass, hemorrhage, hydrocephalus, or other lesions, and no acute
intracranial abnormalities were identified. (R. at 599.)
On April 21, 2015, Plaintiff returned to Parkland with a complaint of tingling and headaches.

9

(R. at 686.) He reported a sticking/burning sensation in both feet and hands that had not improved
with prior medication. (Id.) He also reported a remote history of lower back injury and that his
GERD was controlled with Pantoprazole. (Id.) Plaintiff’s hypertension problem was controlled.
(R. at 686.)

His active problems were listed as chest pain, nocturia, tension headaches,

hypertension, seasonal allergic rhinitis, GERD, and depression. (R. at 686-87.) Plaintiff was
prescribed Gabapentin for his hand and foot numbness. (R. at 688.)
On July 20, 2015, Plaintiff reported to Parkland’s emergency room with a chief complaint
of chest pain. (R. at 689.) He reported that chest pain was from his abdominal pain ascending that
morning after his breakfast. (Id.) He had a posterioranterior and lateral chest x-ray, which found
no significant abnormalities. (R. at 600.) His pain resolved and he was discharged. (R. at 692.)
On September 15, 2015, Plaintiff had a follow up appointment at Parkland. (R. at 693-94.) He
denied chest pain but reported anxiety and occasional nervousness. (R. at 694.) He was directed
to schedule an optometry appointment, continue his medication, take Tylenol for arthritis as needed,
and buy Claritin, Benadryl, or Zyrtec for his allergies. (R. at 696.)
3.

Hearing Testimony3

On October 5, 2015, Plaintiff and a vocational expert (VE) testified at a hearing before the
ALJ. (R. at 29-71.) Plaintiff was represented by an attorney. (R. at 31.)
a.

Plaintiff’s Testimony

Plaintiff testified that he was 5' 9" tall, weighed 180 pounds, and was right-handed. (R. at
35.) He graduated from high school, but neither attended college nor had any special vocational

3

Plaintiff also had a hearing before a different ALJ on July 23, 2012 related to claims for disability and DIB under Title
II and SSI under Title XVI filed on February 23, 2011. (R. at 72-102.) Those claims were denied on September 19,
2012. (R. at 106-117.) In reaching her decision in the pending matter, the ALJ noted that the earlier denial was upheld
on appeal and that the doctrine of res judicata applied for the period prior to the ALJ’s decisions. (R. at 14.)

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training. (R. at 36.) He lived with his mother, and she paid any of his bills that were not covered
by food stamps. (R. at 35, 37.) Plaintiff’s driver’s license was suspended in 1996 for drugs, and he
never successfully had it reinstated. (R. at 35-36.) He had served in the National Guard for two or
three years and was discharged sometime in the 1970s. (R. at 36.)
Plaintiff previously worked as a custodian for nine years. (R. at 39.) His duties included
cleaning, mopping, taking out trash, buffing floors, vacuuming, and running a scrub machine. (R.
at 40.) He carried heavy items ranging from 20 to 40 pounds and pushed items heavier than 50
pounds on a dolly. (R. at 40-41.) He did not have problems following his supervisor’s directions,
but he did not like his coworkers telling him to do things. (R. at 63-64.) He committed a crime, i.e.,
making a false statement, was given probation, and was terminated. (R. at 38-39.) Plaintiff had not
attempted to seek employment since 2010. (R. at 37-39.) He did, however, receive unemployment
benefits in 2011. (Id.)
Plaintiff’s lower back hurt when he lifted things. (R. at 42.) He did not take any medication
for it. (R. at 44-45.) He could pick up a gallon of milk but felt “a little pain” when he did so. (R.
at 44.) He had high blood pressure, which caused dizziness and headaches. (R. at 47.) His
headaches began in 2010 or 2011 and had lasted for a day on average. (R. at 43.) They could last
for the entire week, however. (Id.) When he experienced a headache, it would make him not want
to do anything. (R. at 44.) Plaintiff took Amlodipine for his high blood pressure. (R. at 46.)
Plaintiff also experienced acid reflux. (R. at 47.) It caused him to stop breathing and
experience chest pain, which lasted all day . (R. at 47-48.) When it flared up, he had to stop for a
few minutes before he could begin working again. (R. at 49.) He took Ranitidine for it. (R. at 47.)
Plaintiff also suffered from depression, which made him nervous around loud noises. (R. at 50-51.)

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He did not like being around people. (Id.) Plaintiff sought treatment at Metrocare for his
depression, which helped “[a] little bit,” and he took Celexa. (R. at 49, 53.)
On a typical day, Plaintiff got up, ate breakfast, went outside for a walk, and watched TV all
day. (R. at 53-54.) He was able to bathe and dress himself. (R. at 55-56.) He only walked for
approximately one block because he did not like being around dogs or people, and usually carried
a club with him. (R. at 54, 58.) He was able to pay attention when he watched TV, but his memory
was not good. (R. at 55.) His mother handled his food stamps, but he went with her to the store
occasionally. (R. at 56.) He did not go to the mall, movies, or out with friends. (R. at 51.)
Plaintiff sometimes heard voices that told him to kill himself and other people. (R. at 57.)
He also received messages through his TV at least several times a week. (R. at 57-58, 64.) He could
stand about 20 to 30 minutes before he needed to sit down and normally slept only one to two hours
per night. (R. at 58-59.) Plaintiff thought he could perform a light job, including standing, walking,
and light lifting. (R. at 61.)
b.

VE’s Testimony

The VE testified that Plaintiff had past work as an industrial cleaner (381.687-018, medium,
SVP: 2). (R. at 66.)
The ALJ asked the VE to assume a hypothetical person of Plaintiff’s age, education, and
vocational background who was able to perform work at a medium exertional level. (Id.) The
hypothetical person could frequently climb ramps or stairs; occasionally climb ladders, ropes, or
scaffolds; and frequently stoop, kneel, crouch, or crawl. (R. at 66-67.) He also needed to avoid
concentrated exposure to unprotected heights or machinery with moving parts. (R. at 67.) He could
understand, remember, and carry out simple instructions; perform simple, routine tasks; and make

12

simple work-related decisions. (Id.) The hypothetical person could have frequent contact with
supervisors, occasional contact with coworkers, and occasional contact with the public. (Id.) The
ALJ then asked whether the hypothetical person could perform any of Plaintiff’s past work. (Id.)
The VE responded that he could. (Id.)
The ALJ also asked whether there was any alternative unskilled work that the hypothetical
person could perform. (Id.) The VE responded that the hypothetical person could also be a
dishwasher (318.687-010, medium, SVP: 2) with 125,000 positions nationally and 7,200 in Texas;
laundry worker (361.684-014, medium, SVP: 2) with 21,600 positions nationally and 1,100 in
Texas; and automobile detailer (915.687-034, medium, SVP: 2) with 15,800 positions nationally and
860 in Texas. (Id.) The ALJ then asked the VE to consider the same hypothetical but assume the
individual had to change positions after one hour of sitting or standing. (Id.) The VE responded that
there would not be a sit/stand option in any position at the medium level. (R. at 68.)
The ALJ next asked the VE to consider the same hypothetical person but at a light exertional
level, who could frequently climb ramps or stairs; occasionally climb ladders, ropes, or scaffolds;
frequently stoop, kneel, crouch, or crawl; and frequently handle and finger bilaterally. (Id.)
Additionally, he would need to avoid concentrated exposure to unprotected heights or machinery
with moving parts. (Id.) He could understand, remember, and carry out simple instructions; perform
simple, routine tasks; make simple work-related decision; have frequent contact with supervisors;
occasional contact with coworkers; and occasional contact with the public. (Id.) The ALJ then
asked whether the hypothetical person could perform any of Plaintiff’s past work. (Id.) The VE
responded that he could not, but that he could be a routing clerk (222.687-022, light, SVP: 2) with
28,200 positions nationally and 1,200 in Texas; photo copy machine operator (207.685-014, light,

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SVP: 2) with 17,200 positions nationally and 1,600 in Texas; and sorter (222.687-014, light, SVP:
2) with 12,500 positions nationally and 790 in Texas. (R. at 68-69.)
The ALJ then asked the VE to consider the same hypothetical person, but that he was
required to miss four days or more each month due to pain or other symptoms as a result of the
individual’s impairment. (R. at 69.) The ALJ asked the VE whether he could perform any jobs in
the regional or national economy. (Id.) The VE responded that he could not. (Id.) The ALJ then
asked the VE to assume that the hypothetical person needed to change positions after one hour of
sitting and standing. (R. at 70.) She asked whether the hypothetical person could perform Plaintiff’s
past work, and the VE responded that he could not. (Id.) The ALJ then asked if there were other
jobs he could perform. (Id.) The VE responded that he could still be a routing clerk, photo copy
machine operator, or sorter. (Id.) The VE stated that her testimony was consistent the Dictionary
of Occupational Titles (DOT). (R. at 69.)
C.

The ALJ’s Findings
The ALJ issued her decision denying benefits on November 10, 2015. (R. at 14-24.) At step

one,4 she found that Plaintiff had not engaged in substantial gainful activity since February 23, 2011,
the alleged onset date. (R. at 16.) At step two, she found that he had the severe impairments of
affective disorder, degenerative disc disease of the lumbar spine, and high blood pressure. (Id.)
Despite the impairments, at step three, she found that he had no impairment or combination of
impairments that met or equaled the severity of one of the impairments listed in the social security
regulations. (R. at 17.)
Next, the ALJ determined that Plaintiff had the residual functional capacity (RFC) to perform
4

The five-step analysis used to determine whether a claimant is disabled under the Social Security Act is described
below.

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medium work as defined by 20 CFR 404.1567(c) and assessed that he could lift and carry up to 50
pounds occasionally and 15 pounds occasionally, stand and/or walk up to six hours in an eight-hour
workday and sit up to six hours in an eight-hour workday. (R. at 18.) He could also frequently
climb ramps or stairs and occasionally climb ladders, ropes, or scaffolds, and frequently stoop,
kneel, crouch, or crawl. (Id.) Plaintiff should avoid concentrated exposure to workplace hazards
such as unprotected heights or machinery with moving parts. (Id.) He could understand, remember,
and carry out simple instructions, perform simple routine tasks, and make simple work-related
decisions. (Id.) Plaintiff could tolerate frequent contact with supervisors, and occasional contact
with coworkers and the public. (Id.)
At step four, the ALJ found that Plaintiff could perform his past relevant work as an
industrial cleaner. (R. at 23.) Although he was capable of performing his past relevant work, the
ALJ also found that there were other jobs that he could perform. (Id.) At step five, the ALJ found
that Plaintiff could perform work as a dishwasher, laundry worker, and auto detailer. (R. at 24.) In
the alternative, the ALJ concluded that he was capable of making a successful adjustment to other
work that existed in significant numbers in the national economy. (Id.) Therefore, the ALJ
determined that Plaintiff had not been under a disability, as defined by the Social Security Act, since
February 23, 2011, the date of protective filing. (Id.)
II. LEGAL STANDARDS
Judicial review of the Commissioner’s denial of benefits is limited to whether the
Commissioner’s position is supported by substantial evidence and whether the Commissioner
applied proper legal standards in evaluating the evidence. Greenspan v. Shalala, 38 F.3d 232, 236
(5th Cir. 1994); 42 U.S.C. § 405(g). “Substantial evidence is that which is relevant and sufficient

15

for a reasonable mind to accept as adequate to support a conclusion; it must be more than a scintilla,
but it need not be a preponderance.” Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995) (quoting
Anthony v. Sullivan, 954 F.2d 289, 295 (5th Cir. 1992)). In applying the substantial evidence
standard, the reviewing court does not reweigh the evidence, retry the issues, or substitute its own
judgment, but rather, scrutinizes the record to determine whether substantial evidence is present.
Greenspan, 38 F.3d at 236. A finding of no substantial evidence is appropriate only if there is a
conspicuous absence of credible evidentiary choices or contrary medical findings to support the
Commissioner’s decision. Johnson v. Bowen, 864 F.2d 340, 343-44 (5th Cir. 1988).
The scope of judicial review of a decision under the supplemental security income program
is identical to that of a decision under the social security disability program. Davis v. Heckler, 759
F.2d 432, 435 n.1 (5th Cir. 1985). Moreover, 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. Id. Thus, the Court
may rely on decisions in both areas without distinction in reviewing an ALJ’s decision. Id. at 436
& n.1.
To be entitled to social security benefits, a claimant must prove that he or she is disabled as
defined by the Social Security Act. Leggett, 67 F.3d at 563-64. The definition of disability under
the Social Security Act is “the 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). When a claimant’s insured status has expired, the claimant “must not only
prove” disability, but that the disability existed “prior to the expiration of [his or] her insured status.”

16

Anthony, 954 F.2d at 295. An “impairment which had its onset or became disabling after the special
earnings test was last met cannot serve as the basis for a finding of disability.” Owens v. Heckler,
770 F.2d 1276, 1280 (5th Cir. 1985).
The Commissioner utilizes a sequential five-step analysis to determine whether a claimant
is disabled:
1.

An individual who is working and engaging in substantial gainful activity
will not be found disabled regardless of medical findings.

2.

An individual who does not have a “severe impairment” will not be found to
be disabled.

3.

An individual who “meets or equals a listed impairment in Appendix 1” of
the regulations will be considered disabled without consideration of
vocational factors.

4.

If an individual is capable of performing the work he has done in the past, a
finding of “not disabled” must be made.

5.

If an individual’s impairment precludes him from performing his past work,
other factors including age, education, past work experience, and residual
functional capacity must be considered to determine if work can be
performed.

Wren v. Sullivan, 925 F.2d 123, 125 (5th Cir. 1991) (summarizing 20 C.F.R. § 404.1520(b)-(f)
(currently 20 C.F.R. § 404.1520(a)(4)(i)-(v) (2012)). Under the first four steps of the analysis, the
burden lies with the claimant to prove disability. Leggett, 67 F.3d at 564. The analysis terminates
if the Commissioner determines at any point during the first four steps that the claimant is disabled
or is not disabled. Id. Once the claimant satisfies his or her burden under the first four steps, the
burden shifts to the Commissioner at step five to show that there is other gainful employment
available in the national economy that the claimant is capable of performing. Greenspan, 38 F.3d
at 236. This burden may be satisfied either by reference to the Medical-Vocational Guidelines of

17

the regulations or by expert vocational testimony or other similar evidence. Fraga v. Bowen, 810
F.2d 1296, 1304 (5th Cir. 1987). After the Commissioner fulfills this burden, the burden shifts back
to the claimant to show that he cannot perform the alternate work. Perez v. Barnhart, 415 F.3d 457,
461 (5th Cir. 2005). “A finding that a claimant is disabled or is not disabled at any point in the
five-step review is conclusive and terminates the analysis.” Loveland v. Bowen, 813 F.2d 55, 58 (5th
Cir. 1987).
III. ISSUES
Plaintiff raises four issues for review:
1.

The ALJ failed to apply the appropriate legal standard established by the
Fifth Circuit Court of Appeals in deciding which of Plaintiff’s impairments
are severe at Step 2 of the Sequential Analysis.

2.

The ALJ’s PRFC is fatally flawed in that it is not based on substantial
evidence.

3.

The ALJ failed to follow SSR 96-6p in determining that the State Agency
Medical Consultant’s opinions and Medical Experts’ opinions were invalid.

4.

The ALJ erred in failing to apply the Grid Rules to determine that Plaintiff
is disabled.

(doc. 15 at 1.)
A.

Severity Standard
Plaintiff argues that the ALJ applied an improper standard to evaluate his severe impairments

at step two in violation of Stone v. Heckler, 752 F.2d 1099 (5th Cir 1985). (doc. 15 at 10.)
1.

Stone

At step two of the sequential evaluation process, the ALJ “must consider the medical severity
of [the claimant’s] impairments.” 20 C.F.R. § 404.1520(a)(4)(ii),(c). To comply with this
regulation, the ALJ “must determine whether any identified impairments are ‘severe’ or ‘not
18

severe.’” Herrera v. Comm’r of Soc. Sec., 406 F. App’x 899, 903 (5th Cir. 2010). Pursuant to the
Commissioner’s regulations, a severe impairment is “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. § 404.1520(c). 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.” Stone, 752 F.2d at 1101, 1104-05. Accordingly, to
meet the severity threshold at step two, “the claimant need only . . . make a de minimis showing that
[his] impairment is severe enough to interfere with her ability to do work.” Anthony , 954 F.2d at
294 n.5 (citation omitted). “Because a determination [of] whether an impairment[ ] is severe
requires an assessment of the functionally limiting effects of an impairment[ ], [all] symptom-related
limitations and restrictions must be considered at this step.” SSR 96-3P, 1996 WL 374181, at *2
(S.S.A. July 2, 1996). Ultimately, a severity determination may not be “made without regard to the
individual’s ability to perform substantial gainful activity.” Stone, 752 F.2d at 1104.
Here, in identifying Plaintiff’s severe impairments, the ALJ cited to 20 CFR 404.1520(c).5
(R. at 16.) She stated that “[a] medically determinable impairment or combination of impairments
is ‘severe’ within the meaning of Social Security Act and Regulations if it significantly limits an
individual’s physical or mental ability to do basic work activities.” (Id.) (emphasis added) (citing
to 20 C.F.R. § 404.1521). The ALJ further stated that “[a]n impairment or combination of

5

Under 20 CFR 404.1520 for evaluation of disability in general:
You must have a severe impairment. If you do not have any impairment or combination of
impairments which significantly limits your physical or mental ability to do basic work activities, we
will find that you do not have a severe impairment and are, therefore, not disabled. We will not
consider your age, education, and work experience. However, it is possible for you to have a period
of disability for a time in the past even though you do not now have a severe impairment.

20 CFR 404.1520(c) (emphasis added).

19

impairments is deemed ‘not severe’ when it is no more than a slight abnormality which has such a
minimal effect on the individual that it would not be expected to interfere with the individual’s
ability to work, irrespective of age, education, or work experience.” (Id.) (emphasis added). The
ALJ did not cite to Stone. (See R. at 14-24.)
Stone provides no allowance for a minimal interference with a claimant’s ability to work.
Stone, 752 F.2d at 1104. Given the difference between these two constructions and the ALJ’s failure
to cite to Stone, she applied an incorrect standard of severity. See Garcia v. Astrue, No. 3:08-CV1881-BD, 2010 WL 304241, at *3 (N.D. Tex. Jan. 26, 2010) (explaining that courts in this district
have consistently rejected, as inconsistent with Stone, the definition of severity under 20 C.F.R. §
404.1520(c) that the ALJ cited in this case); see also Lawson v. Astrue, No. 4:11-CV-00426, 2013
WL 449298, at *4 (E.D. Tex. Feb.6, 2013) (noting “while the difference between the two statements
appears slight, it is clear that the [regulatory definition] is not an express statement of the Stone
standard”).
2.

Harmless Error

Even where the ALJ fails to specifically determine the severity of a claimant’s impairments
at step two, remand is not required where the ALJ proceeds to the remaining steps of the disability
analysis and considers the alleged impairment’s (or its symptoms) effects on the claimant’s ability
to work at those steps. See, e.g., Herrera, 406 F. App’x at 3 & n.2; Abra v. Colvin, No.
3:12-CV-1632-BN, 2013 WL 5178151, at *4 (N.D. Tex. Sept. 16, 2013) (listing cases). An ALJ’s
failure to apply the correct standard at step two in determining the severity of the claimant’s
impairments (i.e., Stone error) “does not mandate automatic reversal and remand, and application
of harmless error analysis is appropriate [ ] where the ALJ proceeds past step two in the sequential

20

evaluation process.” Gibbons v. Colvin, No. 3:12-CV-0427-BH, 2013 WL 1293902, at *14 (N.D.
Tex. Mar. 30, 2013) (citing cases); accord Newbauer v. Colvin, No. 3:14-CV-3548-BH, 2016 WL
1090665, at *15 (N.D. Tex. Mar. 21, 2016) (applying harmless error analysis); see also Taylor v.
Astrue, 706 F.3d 600, 603 (5th Cir. 2012) (per curiam) (applying harmless error analysis where the
ALJ failed to cite Stone in finding at step two that the claimant’s alleged mental impairment was
non-severe). Accordingly, Plaintiff must show that the ALJ’s step two error was not harmless. See
Garcia v. Astrue, No. CIV. M-08-264, 2012 WL 13716, at *12 (S.D. Tex. Jan. 3, 2012) (“Assuming
. . . that the ALJ erred in failing to specifically address whether Plaintiff’s right leg venous
thrombosis was a severe impairment, the next question is whether the ALJ committed reversible
error.”). In the Fifth Circuit, harmless error exists when it is “inconceivable” that a different
administrative determination would have been reached absent the error. Bornette v. Barnhart, 466
F. Supp. 2d 811, 816 (E.D. Tex. 2006) (citing Frank v. Barnhart, 326 F.3d 618, 622 (5th Cir. 2003)).
Plaintiff argues that the Stone error was not harmless because “the ALJ could have found that
[Plaintiff] had additional severe impairments at the step 2 finding, and consequently found [him]
disabled.” (doc. 15 at 14.) These medical impairments include GERD; chronic headaches, due to
either allergic rhinitis or elevated blood pressure; dental pain; hypertension; abdominal pain; anemia;
hemorrhoids; occasional joint pain, maybe due to and arthritis; low back pain due to degenerative
disc disease; hand and foot pain, with no clear etiology, but may be caused by peripheral neuropathy
due to hypertension; chest pain; and schizophrenia. (Id. at 11-12.) If she had classified these
impairments as severe, “the ALJ would have had to determine the impact of the impairments on [his]
RFC.” (Id. at 12.)

21

At step two, the ALJ determined that Plaintiff’s severe impairments were affective disorder,
degenerative disc disease of the lumbar spine, and high blood pressure. (See R. at 16.) Because
none of his impairments or a combination of impairments met or medically equaled a listed
impairment at step three, the ALJ proceeded to assess RFC. (See R. at 17); see also 20 C.F.R. §
404.1520a(d)(3); Boyd v. Apfel, 239 F.3d 698, 705 (5th Cir. 2001) (“If the [claimant’s] impairment
is severe, but does not reach the level of a listed disorder, then the ALJ must conduct a [RFC]
assessment.”). Consideration of all “medically determinable impairments . . . including [those] that
are not ‘severe,’” and “all of the relevant medical and other evidence,” is required by the regulations
when determining RFC. See 20 C.F.R. § 404.1545(a)(2)-(3) (2012); SSR 85–28, 1985 WL 56856,
at *3.
The ALJ followed a two-step process. (R. at 19.) First, she determined whether there was
an underlying medically determinable physical or mental impairment, or combination thereof, that
could reasonably be expected to produce Plaintiff’s pain or other symptoms. (Id.) She found that
his medically determinable impairments could reasonably be expected to cause the alleged
symptoms. (R. at 22.) Second, she evaluated the intensity, persistence, and limiting effects of
Plaintiff's symptoms to determine the extent to which they limited his functioning. (Id.)
In determining Plaintiff’s RFC, the ALJ found that Plaintiff could perform medium work as
defined by 20 CFR 404.1567(c) and that he could lift and carry up to 50 pounds occasionally and
15 pounds occasionally, stand and/or walk up to six hours in an eight-hour workday and sit up to
six hours in an eight-hour workday. (R. at 18.) Plaintiff could also frequently climb ramps or stairs
and occasionally climb ladders, ropes, or scaffolds, and frequently stoop, kneel, crouch, or crawl.
(Id.) He should avoid concentrated exposure to workplace hazards such as unprotected heights or

22

machinery with moving parts. (Id.) He could understand, remember, and carry out simple
instructions, perform simple routine tasks, and make simple work-related decisions, and tolerate
frequent contact with supervisors, and occasional contact with coworkers and the public. (Id.)
The ALJ acknowledged Plaintiff’s testimony, the medical evaluations by the different
doctors, and the results of diagnostic tests and x-rays. (R. at 18-22.) She considered the results of
imagining scans and repeated physical examinations in relation to the opinions of Drs. Newton,
Pfeil, and Joyce.6 (See id.) (“While imaging revealed some degenerative changes, which would
likely reduce the claimant to medium work, the lack of other objective findings does not support
greater limitations.”). She noted that Dr. Pfeil did not specify the reason or clinical finding for
requiring Plaintiff to change position hourly and did not adopt that portion of his opinion, even
though the findings of a consultative examiner are generally accorded great weight and she adopted
many of his findings. (R. at 20.) The ALJ also considered it important that repeated physical
examinations failed to document any abnormal musculoskeletal findings, such as tenderness or
limited range of motion, and that he was not prescribed and did not take any pain relieving
medications. (Id.) She concluded that “[t]he medium RFC and other limitations therein take into
account claimant’s degenerative condition of his lumbar spine as well as his high blood pressure.”
(Id.)
As noted, the ALJ’s RFC assessment should be based on all of the relevant evidence in the
record and should account for all of the claimant’s impairments, including those that are non-severe.
See 20 C.F.R. § 404.1545(a)(3). The ALJ’s determination necessarily includes an assessment of the
nature and extent of a claimant’s limitations and determines what the claimant can do “on a regular
6

She also noted that Plaintiff previously received an unfavorable ALJ decision on September 19, 2012 that was
considered final and binding through the day of the decision. (R. at 19.)

23

and continuing basis.” 20 C.F.R. §§ 404.1545(b)-(c), 416.945(b)-(c);SSR 96-8p, 1996 WL 374184,
at *1 (S.S.A. July 2, 1996); accord Dunbar v. Barnhart, 330 F.3d 670, 672 (5th Cir. 2003) (“Both
[20 C.F.R. § 404.1545 (2002) and SSR 96-8p (1996)] make clear that RFC is a measure of the
claimant’s capacity to perform work ‘on a regular and continuing basis.’”). SSR 96-8p distinguished
between what the ALJ must consider and what the ALJ must include in her written decision. Here,
the ALJ’s narrative discussion shows she applied the correct legal standards and considered all of
the relevant evidence in determining Plaintiff’s RFC.
Additionally, even if Plaintiff is correct that use the Stone standard would have resulted in
a determination that he also had the severe medical impairments of (1) GERD; (2) chronic
headaches, due to either allergic rhinitis or elevated blood pressure; (3) dental pain; (4)
hypertension; (5) abdominal pain; (6) anemia; (7) hemorrhoids; (8) occasional joint pain, maybe due
to and arthritis; (9) low back pain due to degenerative disc disease; (10) hand and foot pain, with no
clear etiology, but may be caused by peripheral neuropathy due to hypertension; (11) chest pain; and
(12) schizophrenia, the ALJ nevertheless considered the symptoms of these impairments in her RFC
assessment. See 20 C.F.R. § 404.1545(a)(3) (noting the ALJ’s RFC assessment should be based on
all of the relevant evidence in the record and should account for all of the claimant's impairments,
including those that are non-severe).
At steps four, the ALJ concluded that Plaintiff was capable of performing his past relevant
work as an industrial cleaner because it did not require the performance of work-related activities
precluded by his RFC and he was able to perform it as it was actually and generally performed. (R.
at 23.) He therefore was found by the ALJ to not be disabled. (R. at 23-24.) The ALJ’s disability
decision shows that she considered Plaintiff’s alleged pain, medical impairments and limitations,

24

and the diagnoses of his doctors. (See R. at 18-22.) To the extent that the ALJ rejected a diagnosed
impairment, as the trier of fact, she was entitled to do so if she found it was not supported by the
objective medical evidence. See Newton v. Apfel, 209 F.3d 448, 452 (5th Cir. 2000) (“Conflicts in
the evidence are for the [ALJ] . . . to resolve.”). At step two, it was still Plaintiff’s burden to prove
he had an impairment or combination of impairments that rendered him “incapable of engaging in
any substantial gainful activity.” See Milam v. Bowen, 782 F.2d 1284, 1286 (5th Cir. 1986); see also
Fraga, 810 F.2d at 1301. A “physical” or “mental” impairment is “an impairment that results from
anatomical, physiological, or psychological abnormalities which are demonstrable by medically
acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3). In determining
Plaintiff’s severe limitations at step two and RFC, the ALJ expressly relied on physical
examinations, diagnostic findings, and all of the evidence in the medical record. (See R. at 14-24.)
In conclusion, the ALJ’s Stone error was harmless because it is inconceivable that she would
have assessed a different RFC—and thereby reached a different disability determination—if she had
applied the Stone severity standard at step two. See Taylor, 706 F.3d at 603 (finding that the ALJ’s
failure to cite to Stone at step two was harmless, and “remand [was] not required since there [was]
no evidence in the record that [the claimant’s] mental health claims [were] severe enough to prevent
him from holding substantial gainful employment” at step five); Goodman v. Comm’r of Soc. Sec.
Admin., No. 3:11-CV-1321-G-BH, 2012 WL 4473136, at *10 (N.D. Tex. Sept. 10, 2012) (Stone
error was harmless where the ALJ considered the effects of the claimant’s mental impairments,
including those that were not severe, on his ability to work at step four), adopted by 2012 WL
4479253 (N.D. Tex. Sept. 28, 2012). Remand is therefore not required on this ground.

25

B.

RFC
Plaintiff contends that the ALJ’s physical RFC assessment was not supported by substantial

evidence. (doc. 15 at 14-19.)
Residual functional capacity, or RFC, is defined as the most that a person can still do despite
recognized limitations. 20 C.F.R. § 404.1545(a)(1) (2003). The RFC determination is a combined
“medical assessment of an applicant’s impairments with descriptions by physicians, the applicant,
or others of any limitations on the applicant’s ability to work.” Hollis v. Bowen, 837 F.2d 1378,
1386-87 (5th Cir. 1988) (per curiam). The relevant policy interpretation states:
1. Ordinarily, RFC is an assessment of an individual’s ability to do sustained
work-related physical and mental activities in a work setting on a regular and
continuing basis. A “regular and continuing basis” means 8 hours a day, for 5 days
a week, or an equivalent work schedule.
2. The RFC assessment considers only functional limitations and restrictions that
result from an individual’s medically determinable impairment or combination of
impairments, including the impact of any related symptoms.
SSR 96-8p, 1996 WL 374184, at *1 (S.S.A. July 2, 1996). The ALJ “is responsible for assessing
the medical evidence and determining the claimant’s residual functional capacity.” Perez v.
Heckler, 777 F.2d 298, 302 (5th Cir. 1985).
Determination of an individual’s RFC should be based on all of the relevant evidence in the
case record, including opinions submitted by treating physicians or other acceptable medical
sources. 20 C.F.R. § 404.1545(a)(3) (2012); SSR 96-8p, 1996 WL 374184, at *1. Every medical
opinion is evaluated regardless of its source, but the Commissioner generally gives greater weight
to opinions from a treating source. 20 C.F.R. § 404.1527(c)(2). A treating source is a claimant’s
“physician, psychologist, or other acceptable medical source” who provides or has provided a
claimant with medical treatment or evaluation, and who has or has had an ongoing treatment
26

relationship with the claimant. Id. § 404.1502. When “a treating source’s opinion on the issue(s)
of the nature and severity of [a claimant’s] impairment(s) is well-supported by medically acceptable
clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial
evidence,” the Commissioner must give such an opinion controlling weight. Id. § 404.1527(c)(2).
While an ALJ should afford considerable weight to opinions and diagnoses of treating
physicians when determining disability, sole responsibility for this determination rests with the ALJ.
Newton, 209 F.3d at 455. The ALJ’s RFC decision can be supported by substantial evidence even
if he does not specifically discuss all the evidence that supports his decision, or all the evidence that
he rejected. Falco v. Shalala, 27 F.3d 160, 164 (5th Cir. 1994). A reviewing court must defer to
the ALJ’s decision when substantial evidence supports it, even if the court would reach a different
conclusion based on the evidence in the record. Leggett, 67 F.3d at 564. Nevertheless, the
substantial evidence review is not an uncritical “rubber stamp” and requires “more than a search for
evidence supporting the [Commissioner’s] findings.” Martin v. Heckler, 748 F.2d 1027, 1031 (5th
Cir. 1984) (citations omitted). The court “must scrutinize the record and take into account whatever
fairly detracts from the substantiality of the evidence supporting the [ALJ’s] findings.” Id. (citations
omitted). Courts may not re-weigh the evidence or substitute their judgment for that of the
Commissioner, however, and a “no substantial evidence” finding is appropriate only if there is a
conspicuous absence of credible evidentiary choices or contrary medical findings to support the
ALJ’s decision. See Johnson, 864 F.2d at 343 (citations omitted).
Plaintiff argues that the ALJ improperly relied on her own lay opinion to determine the

27

effects of his impairments in violation of Ripley v. Chater, 67 F.3d 552 (5th Cir. 1995).7 (docs. 15
at 15; 17 at 5.)
In Ripley, the claimant argued that the ALJ failed to develop the record fully and fairly by
finding that he could perform sedentary work even though there was no medical testimony to
support that conclusion. 67 F.3d 552. The Fifth Circuit noted that although an ALJ should usually
request a medical source statement describing the types of work that the applicant was still capable
of performing, the absence of such a statement did not necessarily make the record incomplete. Id.
Rather, the court had to consider whether there was substantial evidence in the record to support the
ALJ’s decision. Id. The record contained “a vast amount of medical evidence” establishing that the
claimant had a back problem, but it did not clearly establish the effect of that problem on his ability
to work. Id. The ALJ’s RFC determination was therefore not supported by substantial evidence,
so the Fifth Circuit remanded the case with instructions to the ALJ to obtain a report from a treating
physician. Id. at 557-58. Notably, the Fifth Circuit rejected the Commissioner’s argument that the
medical evidence discussing the extent of the claimant’s impairment substantially supported the
ALJ’s RFC assessment, finding that it was unable to determine the effects of the claimant’s
condition on his ability to work absent reports from qualified medical experts. Id. at 558 n.27.
After making a credibility analysis, the ALJ considered the medical evidence and opinions
in the medical record. (See R. at 18-22.) She noted that she generally gave the opinions of
consultative examiners great weight, but affirmatively did not adopt the part of Dr. Pfeil’s

7

Plaintiff also relies on Browning v. Barnhart, No. 1:01-CV-637, 2003 WL 1831112 (E.D. Tex. Feb. 27, 2003) and Pree
v. Colvin, No. 3:11-CV-3538-M, 2013 WL 5184016 (N.D. Tex. Sept. 13, 2013) in his opening brief. (See doc. 15 at 15).
Both Browning and Pree consider an ALJ’s improper reliance on his or her own lay opinion in light of the Fifth Circuit’s
Ripley opinion, see Browning, 2003 WL 1831112, at *6-7; Pree, 2013 WL 5184016, *16 n.14, which was identified in
Plaintiff’s reply brief, (see doc. 17 at 5).

28

assessment that required Plaintiff to change his position hourly and limited his carrying capacity in
light of the clinical findings. (R. at 20.) She noted inconsistencies in Dr. Joyce’s consultative
psychological examination in light of Metrocare’s medical records. (R. at 21) (noting that “[i]f the
claimant’s symptoms and signs were as severe as reported by [Dr. Joyce], examiners at MetroCare
would have likely noted such findings and adjusted medication over their course of treatment of
claimant,” which they did not).
Next, the ALJ considered the medical opinions of the state agency’s medical consultants,
including Drs. Samaratunga and Thompson. (R. at 22.) She gave Dr. Samaratunga’s finding that
Plaintiff had no physical impairments that were severe “little weight” because imaging studies
supported the finding that spondylosis would limit Plaintiff to medium work. (R. at 22.) The ALJ
then gave “great weight” to Dr. Thompson’s mental RFC assessment, which found that Plaintiff was
limited to simple instructions and decisions with a capacity to perform simple and repetitive tasks,
because it was consistent with the medical records from Metrocare. (Id.) Finally, she considered
the medical assessment from Dr. Newton, which was given “little weight” because it was “wholly
contradicted” by concurrent treatment records from the same day. (Id.) Because the RFC was based
on specific medical opinions, the ALJ did not rely on her own lay opinion in violation of Ripley.
C.

SAMC Opinions
Plaintiff contends that the ALJ committed legal error by not following SSR 96-6p in

rejecting some of Dr. Pfeil’s opinion medical opinions. (doc. 15 at 17.)
State agency medical consultants (SAMCs) are considered experts in Social Security
disability determination, and their opinions may be entitled to great weight if they are supported by
the evidence. Hardin v. Astrue, No. 3:10-CV-1343-B, 2011 WL 1630902, at *7 (N.D. Tex. Mar.

29

31, 2011), adopted by 2011 WL 1633132 (N.D. Tex. Apr. 29, 2011). Although the ALJ is solely
responsible for assessing the claimant’s RFC, he must consider any opinion by an SAMC in making
this assessment. SSR 96-6p, 1996 WL 374180, at *4 (S.S.A. July 2, 1996). “RFC assessments by
[SAMCs] . . . are to be considered and addressed in the [ALJ’s] decision as medical opinions from
nonexamining sources about what the individual can still do despite his or her impairment(s)” and
“are to be evaluated considering all of the factors . . . for considering opinion evidence” outlined in
20 C.F.R. § 404.1527(c). Id. The ALJ is not required to expressly discuss each finding by an
SAMC or discuss each factor listed in 20 C.F.R. § 404.1527(c),8 however, because such a detailed
analysis applies only to the ALJ’s rejection of a treating sources’ uncontradicted opinion. See
Newton, 209 F.3d at 456-58. The ALJ also “must explain the weight given to these opinions in [her]
decision[ ].” SSR 96-6p, 1996 WL 374180, at *4.
Here, the ALJ referred to Dr. Pfeil by name. (R. at 20.) She specifically considered his
observations and conclusions, affirmatively did not adopt the part of his assessment that required
Plaintiff to change his position hourly and limited his carrying capacity in light of the clinical
findings, and explicitly assigned a weight to his opinions. (R. at 20.)9 She did not commit legal

8

The factors include: (1) whether the relationship was examining or not, (2) nature and extent of treatment relationship,
(3) supportability of the medical opinion, (4) consistency, (5) specialization of the physician, and (6) other factors. See
20 C.F.R. § 404.1527(c)(2) (listing factors to consider)

9

In making this finding, she stated:
While limitations to bending and stooping repetitively are adopted based on Dr. Pfeil’s opinions, the
limitation to carry only 20 to 30 pounds is not supported by full range of motion, normal gait, and
otherwise unremarkable clinical findings. . . . Repeated physical examination failed to document any
abnormal musculoskeletal findings such as tenderness or limited range of motion. More recently, the
claimant noted ongoing low back pain, but he denied radiating symptoms. He did not report taking or
being prescribed any pain relieving medication. . . . The medium RFC and other limitations therein
take into account the claimant’s degenerative conditions of his lumbar spine as well as his high blood
pressure.

(Id.)

30

error. See SSR 96-6p, 1996 WL 374180, at *4; see Hunt v. Astrue, No. 4:12-CV-244-Y, 2013 WL
2392880, at *7 (N.D. Tex. June 3, 2013) (“The ALJ is not required to discuss every piece of
evidence in the record nor must the ALJ follow formalistic rules of articulation.”); compare Webb
v. Astrue, No. 408-CV-747-Y, 2010 WL 1644898, at *11 (N.D. Tex. Mar. 2, 2010) (holding that
“the ALJ erred by not . . . specifying the weight he assigned to each [SAMC] opinion”), adopted by
2010 WL 1644697 (N.D. Tex. Apr. 22, 2010); Jones v. Colvin, No. 3:13-CV-0097-BH, 2014 WL
1281288, at *8-10 (N.D. Tex. Mar. 31, 2014) (finding that an ALJ committed legal error where the
he failed to assign a specific weight to SAMC’s opinion).
D.

Grid Rules
Plaintiff contends that the ALJ erred by failing to apply Grid Rule 202.04 at step five to

determine that he was disabled. (doc. 15 at 19.)
To be considered disabled, a claimant must have a severe impairment that makes him unable
to perform his previous work or any other substantial gainful activity existing in the national
economy. 42 U.S.C. § 423(d)(2); 20 C.F.R. § 404.1505(a). According to the Code of Federal
Regulations, “[w]ork exists in the national economy when there is a significant number of jobs (in
one or more occupations) having requirements [that a claimant is] able to meet with [his] physical
or mental abilities and vocational qualifications.”

20 C.F.R. § 404.1566(b).

It is the

Commissioner’s burden at step five to show that a claimant is capable of performing other gainful
employment in the national economy. 20 C.F.R. § 404.1520(a)(4)(i); Greenspan, 38 F.3d at 236.
Once the Commissioner finds that jobs in the national economy are available to a claimant, the
burden of proof shifts back to the claimant to rebut this finding. See Selders v. Sullivan, 914 F.2d
614, 618 (5th Cir. 1990) (per curiam) (citing Fraga, 810 F.2d at 1302).

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To establish that work exists for a claimant at step five of the sequential disability
determination process, the ALJ relies on the testimony of a VE in response to a hypothetical
question10 or other similar evidence, or on the Medical–Vocational Guidelines promulgated to guide
this determination, often referred to as “the Grids.”11 Newton, 209 F.3d at 458; Bowling v. Shalala,
36 F.3d 431, 435 (5th Cir. 1994); 20 C.F.R. Pt. 404, Subpt. P, App. 2 (2008). An ALJ may rely
exclusively on the Grids if the impairments are solely exertional,12 or if the nonexertional
impairments do not sufficiently or significantly13 affect the RFC. Newton, 209 F.3d at 458 (citing
Fraga, 810 F.2d at 1304 (stating that when “the claimant either suffers only from exertional
impairments or his non-exertional impairments do not significantly affect his residual functional
capacity, the ALJ may rely exclusively on the Guidelines in determining whether there is other work

10

“The ALJ relies on VE testimony in response to a hypothetical question because the VE ‘is familiar with the specific
requirements of a particular occupation, including working conditions and the attributes and skills needed.’ ” Benton
ex rel. Benton v. Astrue, No. 3:12-CV-874-D, 2012 WL 5451819, at *7 (N.D. Tex. Nov. 8, 2012) (quoting Carey v.
Apfel, 230 F.3d 131, 145 (5th Cir. 2000)). A hypothetical question posed by an ALJ to a VE must reasonably incorporate
all the claimant’s disabilities recognized by the ALJ and the claimant must be afforded a fair opportunity to correct any
deficiencies in the hypothetical question. Bowling v. Shalala, 36 F.3d 431, 436 (5th Cir. 1994) (per curiam). If, in
making a disability determination, the ALJ relied on testimony elicited by a defective hypothetical question, the ALJ
did not carry his burden of proof to show that despite an impairment, a claimant could perform available work. Boyd,
239 F.3d at 708.
11

The Grids are divided into age categories, and the determination of whether an individual is presumptively disabled
differs depending upon the age category and other factors. See 20 C.F.R. Pt. 404, Subpt. P, App. 2.
12

Under the Social Security regulations, impairments are either exertional or nonexertional. Impairments are classified
as exertional if they affect the claimant’s ability to meet the strength demands of jobs. The classification of a limitation
as exertional is related to the United States Department of Labor’s classification of jobs by various exertion levels (i.e.,
sedentary, light, medium, heavy, and very heavy) in terms of the strength demands for sitting, standing, walking, lifting,
carrying, pushing, and pulling. All other impairments are classified as nonexertional. See Holiday v. Barnhart, 460 F.
Supp. 2d 790, 806 (S.D. Tex. 2006) (citing Sykes v. Apfel, 228 F.3d 259, 263 (3d Cir. 2000) and 20 C.F.R. §
404.1569(a)); see also SSR 96-9P, 1996 WL 374185, at *5 (“[A] nonexertional limitation is an impairment-caused
limitation affecting such capacities as mental abilities, vision, hearing, speech, climbing, balancing, stooping, kneeling,
crouching, crawling, reaching, handling, fingering, and feeling. Environmental restrictions are also considered to be
nonexertional.” (emphasis in original)).
13

Compare Newton, 209 F.3d at 458 (the nonexertional impairments “do not sufficiently” affect the RFC) (emphasis
added), with Selders, 914 F.2d at 619 (the nonexertional impairments “do not significantly” affect the RFC) (emphasis
added); Fraga, 810 F.2d at 1304 (same).

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available that the claimant can perform”)). If the claimant suffers from nonexertional impairments,
or a combination of exertional and nonexertional impairments, then the ALJ must rely on the
testimony of a VE or other similar evidence to establish that such jobs exist in the economy. Id.
The Grids explicitly state that they “do not direct factual conclusions of disabled or not disabled for
individuals with solely nonexertional impairments.” 20 C.F.R. Pt. 404, Subpt. P, App. 2, §
200.00(e)(1).
Even when the claimant is so affected by a nonexertional impairment as to preclude resort
to the Grids, they “may nevertheless be consulted as a ‘framework’ for consideration of how much
the individual's work capability is further diminished in terms of any types of jobs that would be
contraindicated by the nonexertional limitations.” Moore v. Social Sec. Admin., 153 F. App’x 945,
947 (5th Cir. 2005) (per curiam) (citing 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 200.00(e)(2) (2005)).
When using the Grids as a framework, the agency’s regulation and rulings state that when a claimant
has a combination of exertional and nonexertional limitations and the exertional limitation directs
a finding of “disabled,” then “there is no need to consider the additional effects of a nonexertional
impairment.” SSR 83-14, 1983 WL 31254 at *3; 20 C.F.R. Pt. 404, Subpt. P., App. 2, §
200.00(e)(2); see also Rodriguez v. Barnhart, No. CIV. SA05CA1203–FB, 2006 WL 3779777, at
*2 (W.D. Tex. Nov. 6, 2006). “If the applicable rule directs a finding that plaintiff is not disabled,
[however,] the Commissioner [must] consider nonexertional limitations and utilize the testimony
of a vocational expert.” Rodriguez, 2006 WL 3779777, at *2; accord Gonzalez v. Astrue, No. M-09210, 2013 WL 1345298, at *9 n.14 (S.D. Tex. Mar. 29, 2013) (observing that courts and legal
scholars have noted that “[h]ow, exactly, the grids provide . . . a framework is unclear . . . [but] one
thing is clear: Where the claimant’s characteristics do not coincide exactly with a Grid Rule, the ALJ

33

should introduce expert vocational testimony to further assist him in his Grids framework guided
analysis.”) (citations and internal quotation marks omitted).
Here, Plaintiff argues that because he cannot perform work at the medium exertional level,
he meets the criteria of Grid Rule 202.04 and must be found disabled. (doc. 15 at 20.) Grid Rule
202.04 applies to a claimant limited to work at less than the medium exertional level. See Solis v.
Colvin, No. H-12-1848, 2013 WL 12106139, at *5 (S.D. Tex. May 22, 2013) (applying 20 C.F.R.
Part 404, Subpt. P, App. 2, Rule 202.04), adopted by 2013 WL 12107660 (S.D. Tex. June 11, 2013).
The ALJ’s medium RFC finding is supported by substantial evidence, however. The Grid Rules
therefore do not dictate a finding of disabled in this case. See, e.g., Solis, 2013 WL 12106139, at
*5 (finding that Grid Rule 202.04 did not apply because the court previously found that the ALJ’s
medium RFC finding supported by substantial evidence).
IV. CONCLUSION
The Commissioner’s decision is AFFIRMED.
SO ORDERED this 30th day of March, 2017.

___________________________________
IRMA CARRILLO RAMIREZ
UNITED STATES MAGISTRATE JUDGE

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