Howard v. Colvin
MEMORANDUM OPINION AND ORDER: The hearing decision is affirmed in all respects. (Ordered by Magistrate Judge David L. Horan on 2/10/2017) (mcrd)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
NANCY A. BERRYHILL,
Acting Commissioner of Social Security, §
MEMORANDUM OPINION AND ORDER
Plaintiff Norman Howard seeks judicial review of a final adverse decision of the
Commissioner of Social Security pursuant to 42 U.S.C. § 405(g). For the reasons
explained below, the hearing decision is affirmed.
Plaintiff alleges that he is disabled due to a variety of ailments, including posttraumatic stress disorder (“PTSD”), an arthritic ankle, lower back problems, sleep
apnea and tinnitus. See Administrative Record [Dkt. No. 17 (“Tr.”)] at 46, 198. After
his application for disability insurance benefits was denied initially and on
reconsideration, Plaintiff requested a hearing before an administrative law judge
(“ALJ”). That hearing was held on May 21, 2014. See id. at 42-61. At the time of the
hearing, Plaintiff was 61years old. See id. at 43. He is a high school graduate, see id.
at 44, and has past work experience as a service technician, see id. at 56-58. Plaintiff
has engaged in substantial gainful activity since October 18, 2010, but there has been
a continuous 12-month period after October 11, 2011 during which Plaintiff did not
engage in substantial gainful activity. See id. at 26, 44-45.
The ALJ found that Plaintiff was not disabled and therefore not entitled to
disability benefits. Although the medical evidence established that Plaintiff suffered
from status post-ankle fracture, degenerative disc disease, obesity, and affective
disorder, the ALJ concluded that the severity of those impairments did not meet or
equal any impairment listed in the social security regulations. See id. at 26, 28. The
ALJ further determined that Plaintiff had the residual functional capacity to perform
a full range of medium work but could not return to his past relevant employment. See
id. at 30, 33. Relying on a vocational expert’s testimony, the ALJ found that Plaintiff
was capable of working as a hand packager, factory worker, and warehouse worker –
jobs that exist in significant numbers in the national economy. See id. at 34.
Plaintiff appealed that decision to the Appeals Council. The Council affirmed.
Plaintiff then filed this action in federal district court. Plaintiff challenges the
hearing decision on five general grounds: (1) the ALJ’s onset date finding was not
supported by substantial evidence and was the result of legal error; (2) the Appeals
Council failed to consider new and material evidence concerning Plaintiff’s Veteran’s
Administration disability rating; (3) the ALJ improperly evaluated Plaintiff’s subjective
complaints; (4) the ALJ’s assessment of Plaintiff’s residual functional capacity is not
supported by substantial evidence and results from reversible legal error; and (5)
substantial evidence does not support the finding that Plaintiff can perform other work
in the national economy.
The Court determines that the hearing decision must be affirmed in all respects.
Judicial review in social security cases is limited to determining whether the
Commissioner’s decision is supported by substantial evidence on the record as a whole
and whether Commissioner applied the proper legal standards to evaluate the
evidence. See 42 U.S.C. § 405(g); Copeland v. Colvin, 771 F.3d 920, 923 (5th Cir. 2014);
Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995). Substantial evidence is “more than
a mere scintilla. It means such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971);
accord Copeland, 771 F.3d at 923. The Commissioner, rather than the courts, must
resolve conflicts in the evidence, including weighing conflicting testimony and
determining witnesses’ credibility, and the Court does not try the issues de novo. See
Martinez v. Chater, 64 F.3d 172, 174 (5th Cir. 1995); Greenspan v. Shalala, 38 F.3d
232, 237 (5th Cir. 1994). This Court may not reweigh the evidence or substitute its
judgment for the Commissioner’s but must scrutinize the entire record to ascertain
whether substantial evidence supports the hearing decision. See Copeland, 771 F.3d
at 923; Hollis v. Bowen, 837 F.2d 1378, 1383 (5th Cir. 1988). The Court “may affirm
only on the grounds that the Commissioner stated for [the] decision.” Copeland, 771
F.3d at 923.
“In order to qualify for disability insurance benefits or [supplemental security
income], a claimant must suffer from a disability.” Id. (citing 42 U.S.C. § 423(d)(1)(A)).
A disabled worker is entitled to monthly social security benefits if certain conditions
are met. See 42 U.S.C. § 423(a). The Act defines “disability” as the inability to engage
in substantial gainful activity by reason of any medically determinable physical or
mental impairment that can be expected to result in death or last for a continued
period of 12 months. See id. § 423(d)(1)(A); see also Copeland, 771 F.3d at 923; Cook v.
Heckler, 750 F.2d 391, 393 (5th Cir. 1985).
“In evaluating a disability claim, the Commissioner conducts a five-step
sequential analysis to determine whether (1) the claimant is presently working; (2) the
claimant has a severe impairment; (3) the impairment meets or equals an impairment
listed in appendix 1 of the social security regulations; (4) the impairment prevents the
claimant from doing past relevant work; and (5) the impairment prevents the claimant
from doing any other substantial gainful activity.” Audler v. Astrue, 501 F.3d 446, 44748 (5th Cir. 2007).
The claimant bears the initial burden of establishing a disability through the
first four steps of the analysis; on the fifth, the burden shifts to the Commissioner to
show that there is other substantial work in the national economy that the claimant
can perform. See Copeland, 771 F.3d at 923; Audler, 501 F.3d at 448. A finding that the
claimant is disabled or not disabled at any point in the five-step review is conclusive
and terminates the analysis. See Copeland, 771 F.3d at 923; Lovelace v. Bowen, 813
F.2d 55, 58 (5th Cir. 1987).
In reviewing the propriety of a decision that a claimant is not disabled, the
Court’s function is to ascertain whether the record as a whole contains substantial
evidence to support the Commissioner’s final decision. The Court weighs four elements
to determine whether there is substantial evidence of disability: (1) objective medical
facts; (2) diagnoses and opinions of treating and examining physicians; (3) subjective
evidence of pain and disability; and (4) the claimant’s age, education, and work history.
See Martinez, 64 F.3d at 174.
The ALJ has a duty to fully and fairly develop the facts relating to a claim for
disability benefits. See Ripley, 67 F.3d at 557. If the ALJ does not satisfy this duty, the
resulting decision is not substantially justified. See id. However, the Court does not
hold the ALJ to procedural perfection and will reverse the ALJ’s decision as not
supported by substantial evidence where the claimant shows that the ALJ failed to
fulfill the duty to adequately develop the record only if that failure prejudiced Plaintiff,
see Jones v. Astrue, 691 F.3d 730, 733 (5th Cir. 2012) – that is, only if Plaintiff’s
substantial rights have been affected, see Audler, 501 F.3d at 448. “Prejudice can be
established by showing that additional evidence would have been produced if the ALJ
had fully developed the record, and that the additional evidence might have led to a
different decision.” Ripley, 67 F.3d at 557 n.22. Put another way, Plaintiff “must show
that he could and would have adduced evidence that might have altered the result.”
Brock v. Chater, 84 F.3d 726, 728-29 (5th Cir. 1996).
The ALJ did not err by using the onset date stated in Plaintiff’s application.
Plaintiff initially filed for disability insurance benefits on July 3, 2013, alleging
an onset date of October 18, 2010. See Tr. at 165. During the administrative hearing,
Plaintiff’s attorney informed the ALJ that the correct onset date should be October 18,
2011, and the ALJ agreed to “make that correction.” Tr. at 43-44. But, in his decision,
the ALJ stated that the onset date was October 18, 2010. See id. at 24, 26, 35. The ALJ
determined that Plaintiff had substantial gainful employment in 2011. See id. at 26.
The ALJ also determined that there had been a continuous 12-month period during
which Plaintiff did not engage in substantial gainful activity, and “the remaining
findings address the period that claimant did not engage in substantial gainful
Plaintiff contends that the ALJ’s erroneous use of an incorrect disability date
was harmful because the ALJ stated that he gave “careful consideration to the entire
record,” see id. at 30, which would include the time period during which the ALJ
concluded Plaintiff had substantial gainful employment while contending that he was
disabled, and because the ALJ found that Plaintiff’s allegations were not entirely
credible, in part because Plaintiff “managed to work full-time for a number of years
and failed to seek any treatment until after his alleged onset date,” see id. at 32.
Even if the ALJ’s determination that Plaintiff engaged in substantial gainful
activity after October 18, 2010 was erroneous, it was not harmful. Had the ALJ
accepted the October 18, 2010 date as the onset date, he would have stopped the
analysis after Step One once he determined that Plaintiff had engaged in substantial
gainful activity. But, because the ALJ found that Plaintiff did not engage in substantial
gainful employment for a continuous 12-month period after October 18, 2010, he went
on to the next step.
The Appeals Council properly considered the new evidence.
Plaintiff next contends that the disability determination is not supported by
substantial evidence because the Appeals Council failed to consider new and material
evidence. After the hearing, Plaintiff submitted new evidence to the Appeals Council
concerning his disability rating by the Department of Veteran’s Affairs (“VA”). See Tr.
The social security regulations provide a claimant an opportunity to submit new
and material evidence to the Appeals Council for consideration when deciding whether
to grant a request for review of an ALJ’s decision. See 20 C.F.R. § 404.970(b). Evidence
submitted for the first time to the Appeals Council is considered part of the record on
which the Commissioner’s final decision is based. See Higginbotham v. Barnhart, 405
F.3d 332, 337 (5th Cir. 2005); see also Rodriguez v. Barnhart, 252 F. Supp. 2d 329, 336
(N.D. Tex. 2003). Based on its internal procedures, the Appeals Council need not
provide a detailed discussion about all new evidence submitted to it. See
Higginbotham, 405 F.3d at 335 n.1.
A court considering the final decision should review the record as a whole,
including the new evidence, to determine whether the Commissioner’s findings are
supported by substantial evidence and should remand only if the new evidence dilutes
the record to such an extent that the ALJ’s decision becomes insufficiently supported.
See Higginbotham v. Barnhart, 163 F. App’x 279, 281-82 (5th Cir. 2006); Gonzalez v.
Comm’r of Soc. Sec. Admin., No. 3:10-cv-2003-O-BF, 2012 WL 1058114, at *10 (N.D.
Tex. Jan. 26, 2012), rec. adopted, 2012 WL 1065459 (N.D. Tex. Mar. 29, 2012). New
evidence justifies a remand only if it is material. See Castillo v. Barnhart, 325 F.3d
550, 551-52 (5th Cir. 2003); Moore v. Astrue, No. 3:07-cv-2017-B, 2009 WL 5386134, at
*3 (N.D. Tex. Nov. 13, 2009), rec. adopted, 2010 WL 165992 (N.D. Tex. Jan. 13, 2010).
Evidence is “material” if: (1) it relates to the time period for which the disability
benefits were denied and (2) there is a reasonable probability that it would have
changed the outcome of the disability determination. See Moore, 2009 WL 5386134, at
A VA rating of total and permanent disability is not legally binding on the
Commissioner because the criteria applied by the two agencies is different – but it is
entitled to a certain amount of weight and must be considered by the ALJ. See Loza v.
Apfel, 219 F.3d 378, 394 (5th Cir. 2000); Latham v. Shalala, 36 F.3d 482, 483 (5th Cir.
At the administrative hearing, Plaintiff testified that he received a 60%
disability rating from the VA in May 2012. See Tr. at 45. The ALJ acknowledged the
VA’s 60% disability rating in his decision. See id. at 31. The ALJ also recounted
Plaintiff’s testimony that he was disabled because of lower back problems, among other
things, and that his lower back condition was debilitating because his muscles tense
up. According to the ALJ, Plaintiff claimed that he had pain medication, his back pain
recurred five times weekly, he underwent physical therapy in 2013 and would continue
the physical therapy, and he denied having any spinal injections or that back surgery
had been recommended. See id. The ALJ also observed that the record did not contain
evidence to support Plaintiff’s testimony that he received physical therapy for his back
impairment, that Plaintiff had not been prescribed any opioid pain relief medication
or any assistive device, such as a back brace or TENS unit, and that Plaintiff had not
sought or been referred to any specialist for his back problems. See id. at 32. The ALJ
explained that Plaintiff’s 60% VA disability rating was not inconsistent with the ALJ’s
finding that Plaintiff was not completely disabled, and he gave the VA disability rating
little weight. See id. at 33.
After the ALJ’s August 1, 2014 decision, Plaintiff submitted a June 22, 2015
letter from the VA to the Appeals Council. In the letter, the VA determined that
Plaintiff’s “lumbosacral strain (claimed as lower back condition)” was related to his
military service and assigned a 10% disability rating. The letter also states that “[w]e
granted entitlement to the 100% rate effective October 19, 2011, because you are
unable to work due to your service connected disability/disabilities” and that “[y]our
overall or combined rating is 70% with Individual Unemployability.” Id. at 651.
The Appeals Council denied Plaintiff’s request for review, stating that “we
considered the reasons you disagree with the decision and the additional evidence,”
specifically referring to the June 22, 2015 letter. “We found that this information does
not provide a basis for changing the Administrative Law Judge’s decision.” Id. at 7-8.
Plaintiff offers no explanation as to how the new VA disability rating would have
changed the outcome of the disability determination. And the Court finds that the new
VA disability rating does not dilute the record to such an extent that the ALJ’s decision
becomes insufficiently supported.
The ALJ properly evaluated Plaintiff’s subjective complaints.
Plaintiff challenges the ALJ’s evaluation of his subjective symptoms. Citing to
Social Security Regulation 96-7 (“SSR 96-7"), the ALJ determined that Plaintiff’s
subjective complaints were not entirely credible. See Tr. at 31-32; SSR 96-7p, 1996 WL
374186 (July 2, 1996).
SSR 96-7 was subsequently superceded by Social Security Regulation 16-3p
(“SSR 16-3p”), see SSR 16-3p, 2016 WL 1119029 (Mar. 16, 2016), and Plaintiff argues
that remand is required so the ALJ can evaluate his subjective complaints under the
new regulation, see Dkt. No. 27 at 8-13. Plaintiff also argues that the ALJ’s evaluation
of his subjective complaints is not supported by the evidence.
Defendant takes no position on the retroactivity of SSR 16-3p and argues that
the ALJ’s assessment of Plaintiff’s subjective complains was supported by the evidence
whether considered under SSR 16-3p or SSR 96-7. See Dkt. No. 28 at 4-5.
The United States Court of Appeals for Fifth Circuit has not addressed the issue
of whether SSR 16-3p is retroactive. But the District Court for the Southern District
of Texas has determined that it is not. See Mayberry v. Colvin, Civil Action No. G-15330, 2016 WL 7686850, at *4-*5 (S.D. Tex. Nov. 28, 2016); see also Bagliere v. Colvin,
No. 1:16CV109, 2017 WL 318834, at *4-*8 (M.D.N.C. Jan. 23, 2017) (same).
Under the Social Security Regulations, there is a two-step process for the
evaluation of a claimant’s reports of pain or other symptoms. See 20 C.F.R. § 404.1429;
20 C.F.R. § 416.909. The first step assesses whether objective medical evidence in the
record demonstrates the existence of a medical impairment “which could reasonably
be expected to produce the pain or other symptoms alleged.” 20 C.F.R. § 404.1529(b).
This step requires a threshold showing that the claimant has a medical condition that
could produce the pain the claimant allegedly suffers. At this step, a claimant only
needs to show objective evidence of some condition that could reasonably be expected
to produce the pain alleged but not objective evidence of the pain itself.
Assuming an adequate showing is made, the ALJ proceeds to the second step.
The second step requires the ALJ to evaluate the intensity and persistence of the
symptoms, as alleged by the claimant, to determine the extent to which those
symptoms affect the claimant’s capacity to perform basic work activities. See 20 C.F.R.
§ 404.1529(c)(4); 20 C.F.R. § 416.929(c)(4). It is not necessary that the claimed severity
be proved by objective medical evidence. The claimant’s subjective complaints of
symptoms need not be accepted to the extent that they are inconsistent with the
available evidence, including the objective evidence of the underlying impairment and
the extent to which that impairment can reasonably be expected to cause the pain
alleged by the claimant.
In weighing a claimant’s statements about the limiting effects of his symptoms,
the ALJ is to consider all relevant evidence, including medical signs and laboratory
findings, as well as the opinions of treating and non-treating medical sources, objective
medical evidence, and other factors relevant to the claimant’s symptoms such as daily
activities; location, duration, frequency and intensity of pain and other symptoms; and
measures taken (such as medication, treatment or home remedies) to alleviate those
symptoms. See 20 C.F.R. § 404.1529(a), (c)(1)-(4); 20 C.F.R. §§ 416.929(a), 416.929(c)(1)11
(4). Ultimately, in determining the extent to which pain and other symptoms limit a
claimant’s ability to perform basic work activities, the ALJ considers the claimant’s
“statements about the intensity, persistence, and limiting effects of his symptoms” and
evaluates those statements “in relation to the objective medical evidence and other
evidence.” 20 C.F.R. § 404.1529(c)(4); 20 C.F.R. § 416.929(c)(4). When making this
determination, the ALJ’s decision should refer specifically to the evidence informing
the ALJ’s conclusion. See Falco v. Shalala, 27 F.3d 160, 163-64 (5th Cir. 1994)
(recognizing that, while the ALJ “must articulate reasons for rejecting the claimant’s
subjective complaints of pain,” the court has declined to apply a “rigid approach”).
Because the ALJ has the opportunity to observe the demeanor and to determine
the credibility of the claimant, the ALJ’s observations concerning these questions are
to be given great weight. See Selders v. Sullinvan, 914 F.2d 614, 617 (5th Cir. 1990)
(considerable deference should be afforded an ALJ’s credibility assessment). It is not
within a reviewing court’s province to determine the weight of the evidence, nor is it
the Court’s function to substitute its judgment for that of the Commissioner if his
decision is supported by substantial evidence. See Newton v. Apfel, 209 F.3d 448, 452
(5th Cir. 2000). Thus, so long as the ALJ points to substantial evidence in support of
his decision and adequately explains the reasons for his finding on the claimant’s
credibility, the court must uphold the ALJ’s determination. 42 U.S.C. § 405(g); see
Richardson v. Perales, 402 U.S. 389 (1971).
Although not having the same force and effect as the regulations, the Social
Security Administration issues rulings that are intended to provide guidance to ALJs
in the evaluation process. See Chrysler Corp. v. Brown, 411 U.S. 281, 295-96 (1979)
(recognizing that Social Security rulings lack the force of law but acknowledging that
they are persuasive); Baty v. Barnhart, 512 F. Supp. 2d 881, 894 (W.D. Tex. 2007)
In March 2016, the Social Security Administration issued Social Security Ruling
16-3p, which provided guidance regarding how the SSA evaluates “statements
regarding the intensity, persistence, and limiting effects of symptoms in disability
claims.” SSR 16-3p, Title II and XVI: Evaluation of Symptoms in Disability Claims,
2016 WL 1119029 (March 16, 2016). This Ruling superseded SSR 96-7p, which for
decades provided guidance on this topic. Ruling 16-3p eliminated the use of the term
“credibility” from the SSA’s sub-regulatory policy, which merely brought it in line with
the long-standing regulations that did not employ the term. See SSR 16-3p, 2016 WL
119029, at *1.
In this case, Ruling 16-3p was not issued until long after the ALJ rendered his
decision and the Appeals Council denied review of the decision. Absent explicit
language to the contrary, administrative rules do not ordinarily apply retroactively.
See, e.g., Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988) (“Retroactivity is
not favored in the law. Thus congressional enactments and administrative rules will
not be construed to have retroactive effect unless their language requires this result.”);
Cruse v. Comm’r of Soc. Sec., 502 F.3d 532, 541-42 (6th Cir. 2007) (“We are not aware
of any constitutional or statutory requirement that the Administration apply its [newly
effective] policy interpretation rulings to appeals then-pending in federal courts,
absent, of course, ex post facto or due process concerns not present here.”); Combs v.
Comm’r of Soc. Sec., 459 F.3d 640, 642 (6th Cir. 2006) (“The Act does not generally give
the SSA the power to promulgate retroactive regulations.”). Because the text of SSR
16-3p does not indicate the SSA’s intent to apply it retroactively, the Court would be
disinclined to do so. See SSR 16-3p, 2016 WL 1119029; Mayberry, 2016 WL 7686850,
Nevertheless, when a new ruling represents a clarification, typically this does
not raise issues about retroactivity. See Clay v. Johnson, 264 F.3d 744, 749 (7th Cir.
2001) (stating that a clarifying rule “can be applied to the case at hand just as a
judicial determination construing a statute can be applied to the case at hand,” and
does not raise issues of retroactivity); see generally, Smolen v. Chater, 80 F.3d 1273,
1281 n.1 (9th Cir. 1996) (“We need not decide the issue of retroactivity [as to revised
regulations] because the new regulations are consistent with the Commissioner’s prior
policies and with prior Ninth Circuit case law....”).
Plaintiff urges the Court to follow Mendenhall v. Colvin, No. 3:14-cv-3389, 2016
WL 4250214 (C.D. Ill. Aug. 9, 2016), which holds that SSR 16-3p applies retroactively,
see id. at *2-4 (following Cole v. Colvin, 831 F.3d 411, 412 (7th Cir. 2016)). The
magistrate judge in Bagliere recently declined to do so based on an understanding that
“SSR 16-3p can only apply retroactively to the ALJ’s decision in this case if it merely
clarifies (as opposed to changes) existing SSA policy.” 2017 WL 318834, at *5, *6
(distinguishing Mendenhall). He found that it changes policy, where SSR 96-7p
contains an entire section entitled “Credibility,” which provides:
In general, the extent to which an individual’s statements about
symptoms can be relied upon as probative evidence in determining
whether the individual is disabled depends on the credibility of the
statements. In basic terms, the credibility of an individual’s statements
about pain or other symptoms and their functional effects is the degree
to which the statements can be believed and accepted as true. When
evaluating the credibility of an individual’s statements, the adjudicator
must consider the entire case record and give specific reasons for the
weight given to the individual’s statements.
The finding on the credibility of the individual’s statements cannot be
based on an intangible or intuitive notion about the individual’s
SSR 96-7p, 1996 WL 374186, at *4. “Under SSR 96-7, the probative value of a
claimant’s statements depends on the extent to which the ALJ accepts those
statements as true.” Bagliere, 2017 WL 318834, at *6 (emphasis in original). In
contrast, SSR 16-3p eliminates the entire section entitled “Credibility” in SSR 96-7.
“[W]e are eliminating the use of the term ‘credibility’ from our subregulatory policy, as
our regulations do not use this term. In doing so, we clarify that subjective symptom
evaluation is not an examination of an individual’s character.” SSR 16-3p, 2016 WL
1119029, at *1. SSR 16-3p instructs ALJs to determine “the extent to which ...
symptoms can reasonably be accepted as consistent with the objective medical and
other evidence in the [claimant’s] record.” Id. at *2. SSR 16-3 shifts the focus from a
more general analysis of a claimant’s truthfulness to an objective comparison of a
claimant’s statements to the evidence of record. See Bagliere, 2017 WL 318834, at *7.
But, having reviewed the old and new rulings, it is evident that the change
brought about by SSR 16-3p was mostly semantic. See Bays v. Colvin, No. 1:15-cv-199SMS, 2016 WL 7324705, at *7 n.6 (E.D. Cal. Dec. 14, 2016) (“Ruling 16-3p
implemented a change of diction rather than substance.”); Lockwood v. Colvin, No. 15
C 192, 2016 WL 2622325, at *3 n.1 (N.D. Ill. May 9, 2016) (noting substantial
consistence between the old and the new ruling in terms of the two-step process to be
followed and the factors to be considered in the evaluation); see, e.g., Burnstad v.
Colvin, Case No. 6:15-cv-00921-SI, 2016 WL 4134535, at 11 n.9 (D. Or. Aug. 2, 2016)
(documenting differential treatment among district courts about whether SSR 16-3p
should apply retroactively); Dooley v. Comm’r of Soc. Sec., ___ F. App’x ___, No. 165146, 2016 WL 4046777, at 5 n.1 (6th Cir. 2016) (noting that because SSR 16-3p did
not alter the existing rule at issue in the case before the court, the court “need not
reach the issue” of whether SSR 16-3p applies retroactively). Thus, the Court need not
in this case decide whether SSR 16-3p must be applied retroactively because the Court
reaches the same conclusion even considering the ALJ’s evaluation of Plaintiff’s
subjective complains in light of SSR 16-3p, as Plaintiff requests. See, e.g., Ponce v.
Colvin, No. 4:15-cv-782-A, 2016 WL 5817515, at *3-*7 (N. D. Tex. Sept. 6, 2016).
The ALJ found that Plaintiff’s ankle fracture, degenerative disc disease, obesity,
and affective disorder were severe impairments but that the intensity of Plaintiff’s
symptoms, including pain, and the extent of the alleged functional limitations were not
supported by objective findings or the record of medical evidence. According to the ALJ,
Plaintiff’s medically determinable impairments can reasonably be expected to produce
“some” of Plaintiff’s alleged symptoms but only to the extent the symptoms are
consistent with the ALJ’s RFC. Tr. at 31.
The ALJ found that Plaintiff had the RFC to perform medium work, which
means that Plaintiff is limited to lifting 50 pounds occasionally, frequently lifting or
carrying up to 25 pounds, and walking, sitting, and standing for six hours in an eighthour day. See id. at 30; 20 C.F.R. § 404.1567. Plaintiff argues that the ALJ’s
determination that he could perform at the exertional ability required for medium
work is inconsistent with the medical evidence concerning his back and ankle
The ALJ recounted Plaintiff’s hearing testimony and, concerning his back and
ankle impairments, stated that Plaintiff testified that his back pain was debilitating
because his muscles tense up. Plaintiff claimed that he had pain medication and that
his back pain recurred five times a week. Plaintiff also testified that he underwent
physical therapy in 2013 and would continue with physical therapy. Plaintiff denied
having any spinal injections and denied that there had been any recommendation for
back surgery. Plaintiff also testified that he broke his ankle in 1988 and that the ankle
fracture was surgically repaired. Plaintiff denied having a full range of motion his
ankle. See Tr. at 31.
The ALJ noted that Plaintiff received little actual medical treatment and that
the medical treatment that he did receive began about two years after his alleged onset
date. The ALJ observed that diagnostic studies of Plaintiff’s spine reveal a mild
condition and referred to x-rays of Plaintiff’s lumbar spine taken on October 17, 2013,
which noted osteoporosis and degenerative changes with mild osteophytes and
unremarkable alignment of the vertebral bodies, disc spaces, and SI joints. See id. at
27, 32, 583. Plaintiff points to x-rays taken on June 18, 2013, which reveal mild
narrowing at L3-L4, L4-L5, and L5-S1, see id. at 362, and argues that the “mild”
findings are inconsistent with the ALJ’s determination that Plaintiff can perform
The ALJ also observed that even though the consultative examiner noted a
severe restriction in the range of motion in the right ankle, no actual measurement was
recorded. See id. at 32, 365. Plaintiff points to the consultative examiner’s finding that
Plaintiff is not able to dorsiflex more than 90 degrees, see id. at 364, and argues that,
if range-of-motion findings were necessary, the ALJ should have contacted the
consultative physician for clarification his findings, see Boles v. Colvin, No. 1:15-cv-49BL, 2016 WL 4257441, at *7 (N.D. Tex. May 27, 2016) (“‘if after weighing the evidence
[the ALJ] cannot reach a conclusion about whether [the claimant] is disabled,’ §
404.1520(c) provides “various options, including re-contacting a treating physician or
other medical source, to resolve an inconsistency or insufficiency of evidence’” (quoting
Bentley v. Colvin, No. 13-cv-4238-P, 2015 WL 5836029, at 8 (N.D. Tex. Sept. 30, 2015)).
The ALJ stated that the record contains no support for Plaintiff’s testimony that
he received physical therapy for his back impairment and that Plaintiff had not been
prescribed any opioid pain relief medication or assistive, such as a back brace or TENS
unit, or sought or been referred to any specialist for his back or ankle problems. An
ALJ may consider the lack of need for medical treatment in evaluating a claimant’s
conditions. See Villa v. Sullivan, 895 F.2d 1109, 1024 (5th Cir. 1990). The ALJ also
found that the record does not contain any opinions from treating or examining
physicians indicating that Plaintiff is disabled or has limiting conditions greater than
those the ALJ found, see Tr. at 32, which supports a finding that Plaintiff is not
disabled, see Vaughan v. Shalala, 58 F.3d 129, 131 (5th Cir. 1995).
The ALJ also found that Plaintiff described daily activities, which were
considerably more limited than one would expect, given the nature of his ankle and
lower back conditions and the relatively routine and conservative character of his
treatment. See id. at 32.
The Court finds that the ALJ simply weighed the evidence in the record to
determine whether it supported Plaintiff’s subjective symptoms and determined that
it did not. The ALJ’s analysis of Plaintiff’s subjective symptoms, even if it speaks in
terms of “credibility” as described in SSR 97-7p, employed the correct process and
evaluated the correct factors under either SSR 97-p or 13-6p.
The RFC finding and the finding that Plaintiff can perform other work in the
national economy are supported by substantial evidence.
Plaintiff contends that the ALJ’s determination of his residual functional
capacity (“RFC”) is not supported by substantial evidence and is the result of legal
The RFC is an assessment, based on all the relevant evidence, of a claimant’s
ability to do work on a sustained basis in an ordinary work setting despite her
impairments. See 20 C.F.R. §§ 404.1545(a), 416.954(a). The RFC refers to the most that
a claimant is able to do despite her physical and mental limitations. See 20 C.F.R. §§
404.1545(a), 416.954(a). The ALJ considers the RFC, along with the claimant’s age,
education, and work experience, to make a determination as to whether the claimant
is disabled. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). “Generally, an ALJ should
request a medical source statement that describes the types of work a claimant can
still perform.” Ripley v. Chater, 67 F.3d 552, 557 (5th Cir. 1995); see also Johnson v.
Astrue, No. 3:12-cv-4175-BK, 2013 WL 3297594, at *4 (N.D. Tex. July 1, 2013). But the
absence of such a statement is only reversible error if the ALJ’s decision is not
supported by substantial evidence. See Ripley, 67 F.3d at 557.
In Ripley, the ALJ ruled that the claimant could perform sedentary work even
though there was no medical evidence or testimony supporting that conclusion. See id.
The Court of Appeals noted that the claimant’s record contained a vast amount of
evidence establishing that he had a back problem but did not clearly establish the
effect that condition had on his ability to work. See id. The Fifth Circuit therefore
remanded with instructions for the ALJ to obtain a report from a treating physician
regarding the effects of the claimant’s back condition on his ability to work. See id. at
557-58. The Court of Appeals rejected the Commissioner’s argument that the medical
evidence substantially supported the ALJ’s conclusion because the court was unable
to determine the effects of the claimant’s conditions, “no matter how ‘small,’” on his
ability to work, absent a report from a qualified medical expert. See id. at 558 n.27.
In this case, the ALJ found that Plaintiff had the RFC “to perform medium work
as defined in 20 CFR 404.1567(c) in that he is limited to lifting 50 pounds occasionally,
and to frequently lift and/or carry up to 25 pounds, and to walk, sit and stand for 6
hours in an 8 hour work day. The claimant has the ability to understand, carryout and
remember simple, repetitive tasks with no more than occasional contact with the
general public.” Tr. at 30. The ALJ stated that the record does not contain any opinions
from treating or examining physicians indicating that Plaintiff is disabled or has
limitations greater than those in the RFC. See id. at 32.
Plaintiff argues that the ALJ’s finding that Plaintiff has a moderate limitation
in social functioning and RFC limiting him to only occasional public contact fails to
accommodate his mental impairments because the RFC did not also limit his ability
to work with co-workers and supervisors. The ALJ noted Plaintiff’s testimony about
his “interpersonal problems, including throwing things, talking back, and smarting off
to others” and that he was fired from his job when his PTSD worsened in 2011. Tr. at
31. But Plaintiff also testified that he was fired because he was accused of stealing
from another employee. See id. at 47. Plaintiff further testified that he collected
unemployment benefits for 80 weeks after being fired and sought employment during
that time, see id., and the ALJ noted that Plaintiff admitted to receiving
unemployment benefits, see id. at 33. A finding that Plaintiff can only have occasional
contact with the public is consistent with an individual who has difficulty dealing with
Plaintiff also argues that he cannot perform a full range of medium work
because activity makes both his ankle and back pain worse. But he fails to suggest any
additional limitations required to accommodate his back impairment or the lack of
range of motion in his ankle. And “[p]ain constitutes a disabling condition when it is
‘constant, unremitting, and wholly unresponsive to therapeutic treatment.’” Falco v.
Shalala, 27 F.3d 160, 163 (5th Cir. 1994) (quoting Selders v. Sullivan, 914 F.2d 614,
618-19 (5th Cir. 1990)). Not all pain is disabling, and subjective evidence need not be
credited over conflicting medical evidence. See Anthony v. Sullivan, 954 F.2d 289, 296
(5th Cir. 1992). “It is important to note that the test for disability under the Social
Security Act is not satisfied merely because Plaintiff cannot work without some pain
or discomfort.” Hames v. Heckler, 707 F.2d 162, 166 (5th Cir. 1983).
Plaintiff also argues that the ALJ’s hypothetical question to the vocational
expert (“VE”) was incomplete because the ALJ improperly evaluated his subjective
complaints. In the hypothetical question posed the VE, the ALJ asked whether an
individual “who had moderate difficulties in social functioning such that they were
limited to no more than occasional contact with supervisors and the general public and
co-workers ... [and was] limited to simple, routine, repetitive tasks consistent with
unskilled work” would be precluded from Plaintiff’s past work. Id. at 58. The ALJ then
asked whether an individual with an RFC “for medium exertional work, that is
occasionally lifting and carrying 50 pounds, frequently lifting and carrying 25 pounds;
standing and walking for about six hours in an eight hour workday; sitting for about
six hours in an eight hour workday; no limitations with regard to pushing, pulling,
operation of hand and foot controls; capable of frequent climbing of ramps and stairs;
occasional climbing of ladders, ropes and scaffolds; and frequent stooping, frequent
crouching or drawling” could perform jobs that exist in the economy. Id. at 58-59. The
VE answered that he could. Plaintiff’s attorney did not ask any follow-up questions.
The ALJ is only obligated to reasonably incorporate into his hypothetical all of
Plaintiff’s disabilities that the ALJ recognized. See Boyd v. Apfel, 239 F.3d 698, 707
(5th Cir. 2001).
The Court has determined that the ALJ properly evaluated Plaintiff’s subjective
complaints. And the hypothetical questions included all of Plaintiff’s functional
limitations supported by the record and recognized by the ALJ.
The hearing decision is affirmed in all respects.
DATED: February 10, 2017
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE
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