Winston v. Colvin

Filing 40

MEMORANDUM OPINION AND ORDER. Based on the relevant findings, evidence, and applicable law, the Commissioner's decision is AFFIRMED. (Ordered by Magistrate Judge Irma Carrillo Ramirez on 3/31/2017) (mcrd)

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

§
§
§
§
§
§
§
§
§
§
§

Civil Action No. 3:16-CV-419-BH

MEMORANDUM OPINION AND ORDER
Pursuant to the consent of the parties and the order of reassignment dated May 3, 2016, this
case has been transferred for the conduct of all further proceedings and the entry of judgment. (doc.
20.) Before the Court is Plaintiff’s Brief, filed September 29, 2016 (doc. 31); Defendant’s Response
Brief, filed November 23, 2016 (doc. 35); and Plaintiff’s Reply (Corrected), filed December 30,
2016 (doc. 39). Based on the relevant findings, evidence, and applicable law, the Commissioner’s
decision is AFFIRMED.
I. BACKGROUND
A.

Procedural History
Linda Gail Winston (Plaintiff) seeks judicial review of a final decision by the Commissioner

of Social Security (Commissioner)1 denying her claim for disability and disability insurance benefits
(DIB) under Title II of the Social Security Act. On November 16, 2012, she applied for disability
and DIB, alleging disability and DIB beginning on May 29, 2008. (R. at 176-77.) Her claim was
denied initially on April 11, 2013, and upon reconsideration on June 24, 2013. (R. at 115-18, 1221

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.

24.) On July 23, 2013, she requested hearing before an administrative law judge (ALJ). (R. at 126.)
She appeared and testified at a hearing on May 5, 2014, and amended her alleged onset date from
May 29, 2008 to February 22, 2012. (R. at 29-58, 197.) The ALJ denied Plaintiff’s application on
September 22, 2014, finding her not disabled. (R. at 10-25.) Plaintiff timely appealed the ALJ’s
decision to the Appeals Council. (R. at 6-9.) The Appeals Council denied her request for review,
and the ALJ’s decision became the final decision of the Commissioner. (R. at 1-5.) 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 July 23, 1965, and was 48 years old at the time of the hearing on May
5, 2014. (R. at 33.) She went through 12th grade in school, and previously worked as a residential
director and psychiatric aide. (R. at 46, 54.)
2.

Medical Evidence

On September 28, 2008, Plaintiff was admitted to the emergency room at Parkland Health
& Hospital System (Parkland) with a chief complaint of dizziness, nausea, and vomiting. (R. at 304,
306.)

She was found to have multiple common bile duct stones and diagnosed with

choledocholithiasis. (R. at 307.) She underwent a laparoscopic cholecystectomy, and multiple
stones were removed. (R. at 307-08.) The doctors also noted that Plaintiff’s diabetes was
uncontrolled, and that her right little toe had previously been amputated. (R. at 306, 308.) Plaintiff
was discharged on October 11, 2008. (R. at 309.) She followed up with Parkland on October 30,
3008 and November 3, 2009. (R. at 285-88.) At the appointments, the doctors noted that Plaintiff
weighed 337 and 346 pounds, respectively. (R. at 285, 287.)

2

On December 4, 2008, Plaintiff was taken by ambulance to Baylor University Medical
Center (Baylor) and admitted with a chief complaint of weakness. (R. at 268, 277.) Her vital signs
were normal, and she was diagnosed with hypoglycemia and discharged the same day. (R. at 27576.)
On January 21, 2009, Claudia Castano, M.D., completed a Medical Release/Physician’s
Statement in which she diagnosed Plaintiff with diabetic neuropathy and diabetes. (R. at 580.) She
opined that Plaintiff was unable to work or participate in activities to prepare for work at all, and that
her disability was permanent. (R. at 580.)
On July 30, 2009, Plaintiff was admitted to Methodist Hospital of Dallas (Methodist) with
a chief complaint of vomiting and abdominal pain. (R. at 445.) She was found to have acute
cholecystitis as well as pyelonephritis and a urinary tract infection. (R. at 439.) She was started on
antibiotics, stabilized, and discharged on August 5, 2009. (Id.) On September 1, 2009, Plaintiff
returned to Parkland for a follow-up to her admission to Methodist. (R. at 331, 467.) She had no
new complaints. (R. at 331.) On April 2, 2010, Plaintiff had an evaluation for a cholecystectomy
at the Parkland surgery clinic at Parkland. (R. at 337, 474, 691.) After her vitals were checked, she
was transferred to Parkland’s emergency room with a hypertensive urgency with no signs of
hypertensive emergency. (R. at 337, 339.) She denied any dizziness, headaches, blurry vision,
confusion, or focal weakness. (R. at 337.) She was discharged that day. (R. at 339.)
Between April 5, 2010 and July 3, 2012, Plaintiff had ten appointments at Parkland for
medical refills and related to her edema, diabetes, hypertension, hypoglycemia and nocturnal
hypoglycemic episodes, constipation, and blurred vision. (See R. at 341, 348, 351, 357, 365, 368,
372, 381, 395, 479, 487, 490, 494, 501, 504, 509, 512, 520, 666, 669-71, 681, 683, 691, 693, 700.)

3

She also requested a disabled parking placard/license plate. (R. at 368.) She reported leg pain with
“prolonged walking.” (R. at 352, 667.) On September 27, 2011, Plaintiff weighed 378 pounds.
(Id.)
On September 28, 2011, Plaintiff had a panretinal photocoagulation to address a proliferative
diabetic retinopathy in her left eye. (R. at 669.) On July 13, 2012, she had a diagnostic laparoscopy
and a laparoscopic converted to open cholecystectomy. (R. at 404.) She was discharged on July 16,
2012. (R. at 407.) Her weight at discharge was reportedly 400 pounds. (Id.) At a post-operative
check up on July 24, 2012, the doctors noted that Plaintiff was doing well. (R. at 427, 555, 653.)
On December 6, 2012, Plaintiff had a follow up with Parkland regarding her hypertension
and complained that she had developed a mass under the incision site of her surgery. (R. at 430.)
She denied dizziness or headaches and requested the completion of a Functional Capacity Study to
determine her disability. (Id.) Plaintiff’s physical examination noted that she weighed 377 pounds.
(R. at 431.) She had four other appointments at Parkland from January 6, 2013 to June 17, 2013.
(R. at 558, 566, 596, 599, 615, 654.)
On March 1, 2013, Plaintiff had a consultative examination with Kelly Davis, D.O. (R. at
574-76.) She reported that she had chronic pain from arthritis and gout and had pain “all over.” (R.
at 574.) Plaintiff also reported that she suffered from worsening pain when she walked or stood and
that her right knee was the most bothersome. (Id.) It would lock up and cause her to fall. (Id.)
During her physical examination, Dr. Davis noted that Plaintiff weighed 333 pounds and observed
that she moved slowly, had great difficulty standing, and used furniture and the wall for support.
(R. at 575-76.) She did not use any assistive devices to walk, however, and she appeared to walk
slowly with a wide based gait. (R. at 576.)

4

On April 8, 2013, relying in part on Dr. Davis’s report, state agency medical consultant
(SAMC) Andrea Fritz, M.D., completed a Physical Residual Functional Capacity Assessment. (R.
at 91, 93-94.) Dr. Fritz found that Plaintiff’s allegations were partially supported by the medical
record, and that she could occasionally lift and/or carry 10 pounds, frequently lift/or carry less than
10 pounds, stand and/or walk for a total of two hours, and sit for about six hours in an eight-hour
workday. (R. at 93-94.) She had no limitations for pushing and/or pulling. (R. at 93.) She could
also occasionally climb ramps and stairs, balance, stoop, kneel, and crouch but never climb ladders,
ropes, or scaffolds. (Id.) Plaintiff could not hold her arms up for long periods. (R. at 94.) Based
on her assessment, Dr. Fritz opined that Plaintiff could perform work at a sedentary exertional level
with few postural limitations. (R. at 95-96.) SAMC Kavitha Reddy, M.D., agreed with Dr. Fritz’s
opinion on June 20, 2013. (R. at 106-08.)
At an appointment at Parkland on June 17, 2013, a physician’s assistant noted that Plaintiff
weighed 399 pounds; was positive for myalgia, joint pains, and falls; and “[w]alk[ed] without
assistance.” (R. at 601-02.) She reported that Plaintiff had fallen three times in two weeks and that
she used a walking cane when necessary. (R. at 615.) Plaintiff was “applying for Disability and
requested prescription[s] for [a] Walker with seat and [a] shower seat.” (Id.) (emphasis added).
They were prescribed for her. (R. at 557-58.) On June 20, 2013, a physical therapist showed
Plaintiff how to do knee exercises. (R. at 604.) The physical therapist’s functional reporting
assessment of Plaintiff’s mobility noted that she was walking and moving around. (Id.)
On August 11, 2014, Plaintiff returned to Parkland with a complaint of left-sided numbness
and weakness, and she was admitted for a stroke work up. (R. at 794-95, 798, 802.) The doctors
noted that “[h]er exam [was] not completely consistent with her complaints, though she [did] have

5

some mild weakness in her left leg,” CT showed right-sided lacunar infarcts but no acute
hemorrhage, and she weighed 367 pounds. (R. at 798, 802, 821.) Plaintiff reported that she had
fallen 10-11 times over the prior three years due to dizziness or numbness in her legs. (R. at 814.)
On August 13, 2014, she reported that she felt better and that the numbness and leg weakness were
essentially resolved. (R. at 802.) Plaintiff demonstrated a stable gait pattern, and the doctors
recommended that she lose weight and do regular exercise at home. (R. at 807, 810.) She was
discharged home. (R. at 810, 836.)
On September 2, 2014, Plaintiff went to Parkland for a disabled parking placard/license
plate. (R. at 837.) It was noted that Plaintiff had left knee pain when walking a long distance and
that she used a walker when walking long distances and a cane for short distances. (Id.) She denied
headaches or dizziness. (Id.)
3.

Hearing Testimony

On May 5, 2014, Plaintiff and a vocational expert (VE) testified at a hearing before the ALJ.
(R. at 29-58.) Plaintiff was represented by an attorney. (R. at 31.)
a.

Plaintiff’s Testimony

Plaintiff testified that she was 48 years old, 5' 6" tall, and weighed 375 pounds, but that her
weight fluctuated and sometimes went down to 325 pounds. (R. at 33-34.) She lived in a house with
her husband, had a driver’s license, and was able to drive. (R. at 45-47.)
Beginning in 1997 or 1998, Plaintiff worked in a nursing home for five years. (R. at 36.)
She had a variety of jobs at the nursing home, including working in the dietary department,
dishwashing, and cooking. (Id.) She then worked as a Caregiver at Edu Care Community Living
(Edu Care)—working in the workshop with clients and teaching them basic living, ABCs, and how

6

to comb their hair. (R. at 35.) After four years, she then worked as the Residential Director at Edu
Care, a supervisory position. (Id.) As the Residential Director, Plaintiff was responsible for taking
a class to and from doctor’s appointments, ordering medications, buying groceries and room
supplies, passing out medication, bathing and feeding clients, and cooking. (R. at 34.) She
explained that she was on her feet approximately 90 percent of the day, required to drive, and had
to lift clients who weighed between 100 and 225 pounds every two hours. (R. at 35.) Plaintiff
worked as the Residential Director for approximately five years until May 25, 2008, the day she last
worked. (R. at 34-35.)
Plaintiff was unable to work because of the pain in her legs and feet, lower back pain,
dizziness/lightheadedness, and eyesight issues. (R. at 36-37.) She experienced pain in her legs
everyday, which she described as a “sharp, needle pain” in both of her legs and feet. (R. at 37.)
She also described the pain in her arms and lower back as a sharp pain, as if someone was pulling
the muscles. (R. at 41-42.) The pain in her arms also made it hard to lift her arms up. (R. at 49.)
She could stand in one place for only 10 minutes before she had to sit down, walk for 15-20
minutes before she had to stop, and sit for 30 minutes at a time before she needed to stand up. (R.
at 38, 43.) She could comfortably lift and carry only 10 pounds. (R. at 52.) She did not receive any
injections or physical therapy for her feet or back. (R. at 47.) Plaintiff’s other medications caused
her to feel dizzy and drowsy on a daily basis and nauseous twice a week. (R. at 44-45.) She relied
on her sister’s assistance when she went up and down stairs, a walker when she walked long
distances, and a cane at home. (R. at 39.) She purchased a cane because her right knee would
locked up when she sat for too long. (R. at 40.) A doctor prescribed the walker. (R. at 38.)
Plaintiff also complained of her eyesight. (R. at 37.) She previously had retina surgery and

7

wore glasses. (R. at 47.) With her glasses she could read books and the newspaper. (R. at 44.) She
did not use a computer because the light bothered her eyes, however. (R. at 42.) When asked how
she spent her time at home, Plaintiff responded that she basically did nothing. (R. at 51.)
b.

VE’s Testimony

The VE testified that Plaintiff had past work as a residential director (195.227-010, light
work, semi-skilled, SVP: 6) and a psychiatric aide (355.377-014, medium work, semi-skilled, SVP:
4). (R. at 46, 54.) The VE noted that Plaintiff described her work as a residential director at a
medium exertional level, but that the positions was traditionally defined as light work. (R. at 53.)
The ALJ asked the VE to consider a hypothetical person of the same age, education, and
work background as Plaintiff, who could perform work at a sedentary level, lift up to ten pounds
occasionally, stand and/or walk for approximately two hours combined out of an eight-hour day, and
sit for a total of six hours out of an eight-hour day. (R. at 54.) She could not climb ladders, ropes,
or scaffolds, but could occasionally climb ramps and stairs. (Id.) Additionally, the hypothetical
person could occasionally balance, stoop, crouch, kneel, or crawl, and she could have only
occasional exposure to unprotected heights and no exposure to hazardous moving machinery. (Id.)
The ALJ asked if the hypothetical person could perform any work in the regional or national
economy. (Id.) The VE opined that the hypothetical person could be an order clerk, food and
beverage (209.567-014, sedentary, unskilled, SVP: 2) with 100,000 positions nationally and 7,000
in Texas; an election clerk (205.367-030, sedentary, unskilled, SVP: 2) with 22,000 positions
nationally and 3,000 in Texas; and a lens inserter (713.687-026, sedentary, unskilled, SVP: 2) with
20,000 positions nationally and 1,300 in Texas. (R. at 54-55.) In response to a question, the VE
testified that there would be a significant erosional factor of the sedentary, unskilled occupational

8

base if the hypothetical person had to sit or stand alternatively. (R. at 55.) Of the previously
identified positions, the hypothetical person could still work as an order clerk, food and beverage.
(Id.) She could also be a dowel inspector (669.687-014, sedentary, unskilled, SVP: 2) with 65,000
positions nationally and 3,187 in Texas or a surveillance system monitor (379.367-010, sedentary,
unskilled, SVP: 2) with 125,000 positions nationally and 8,400 in Texas. (Id.) The use of a cane
or walker would not affect the first set of jobs, but they would eliminate the second group. (R. at
55-56.) It would also be difficult for the hypothetical person to maintain competitive employment
if she was not on task at least 90 percent of the time or if she missed more than two days per month.
(R. at 57.) Her testimony was consistent with the Dictionary of Occupational Titles (DOT). (R.
at 56.)
C.

The ALJ’s Findings
The ALJ issued her decision denying benefits on September 22, 2014. (R. at 13-21.) At step

one,2 she found that Plaintiff had not engaged in substantial gainful activity from her amended onset
date of February 22, 2012, through her date last insured of December 31, 2013. (R. at 15.) At step
two, she found that Plaintiff had the severe impairments of diabetes mellitus with neuropathy,
history of amputated right fifth toe, history of cataracts, diabetic retinopathy requiring laser
surgeries, hypertension, history of chronic kidney disease, right adrenal mass, mild degenerative
joint disease of the knee, and morbid obesity. (Id.) Despite the impairments, at step three, she found
that Plaintiff 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 15-16.)
Next, the ALJ determined that Plaintiff had the RFC to perform sedentary work as defined
2

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

9

in 20 C.F.R. § 404.1567(a) except that she could lift up to 10 pounds occasionally, stand or walk for
two hours in an eight-hour day, and sit for six hours in an eight-hour day. (R. at 16.) She could
never climb ladders, ropes, or scaffolds; occasionally climb ramps or stairs; and occasionally
balance, stoop, kneel, crouch, or crawl. (Id.) Plaintiff could also occasionally lift overhead but
could have no exposure to unprotected heights, hazards, or moving machinery. (Id.)
At step four, the ALJ found that Plaintiff could not perform her past relevant work. (R. at
20.) The ALJ continued to step five and found that transferability of job skills was not material to
the determination of disability because use of the Medical-Vocational Rules as a framework
supported a finding that she was not disabled, whether or not she had transferrable job skills. (Id.)
Considering her age, education, work experience, and RFC, the ALJ found there were jobs in
significant numbers in the national economy that she could perform. (R. at 21.) Accordingly, the
ALJ determined that Plaintiff had not been under a disability, as defined under the Social Security
Act, from her amended onset date of February 22, 2012 through December 31, 2013, the date of last
insured. (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
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

10

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.”
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).

11

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
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,

12

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 the following issues for review:
1.
The ALJ found that Ms. Winston “weighs 333 pounds.” The Decision does not
mention that this is the lowest weight recorded during the relevant period. All others
are 40 to 66 pounds higher. Given the important role that her obesity plays in
aggravating her other ailments, does the ALJ’s singular reliance on this “outlier”
value warrant remand?
2.
(a) Plaintiff falls down frequently. She has injured herself in falls. She is sometimes
unable to get up without help. Each time, her body hits the ground with the force of
about 375 pounds. Did the ALJ reversibly err by failing to notice that she has fallen?
(b) It is the agency’s burden to prove through VE testimony that Ms. Winston can
do significantly available other work. In posing her key hypothetical questions, did
the ALJ reversibly err by failing to apprise the VE of any of the following undisputed
facts: that Ms. Winston (i) falls frequently, (ii) is extremely obese, (iii) has injured
herself in falls, (iv) is sometimes unable to get up without help, (v) has “great
difficulty standing” and needs to use the furniture or the walls to remain upright, or
(vi) after sitting for a few minutes, she can no longer move her right lower extremity
without help?
3.
(a) At the Commissioner’s insistence, agency contract physician, Dr. Kelley Davis,
gave Ms. Winston a physical exam. It led her to write a 3-page medical opinion,
which includes numerous specific conclusions supportive of Ms. Winston’s claim.
Did the ALJ violate the medical-opinion regulation by failing to weigh Dr. Davis’s
opinion?
(b) The Decision selectively incorporates a handful of Dr. Davis’s conclusions to
support its skeptical view of the claim, but fails to evaluate many of her other
conclusions that show Winston to be far more impaired than the ALJ found. Does the
ALJ’s failure to make clear whether she embraced those of Dr. Davis’s conclusions
favorable to Winston, or rejected them (and, if so, on what basis), preclude
meaningful judicial review? Does the ALJ’s selective use of only those parts of Dr.
13

Davis’s report that could be seen to undermine her claim violate the rule against
“picking and choosing,” thereby depriving the Decision of “substantial evidence”
support?
4.
The VE testimony and SSR 83-12 indicate that, if Ms. Winston needs the freedom
to change positions between sitting and standing, then she is probably disabled. The
ALJ’s RFC finding does not permit her to change positions. It says nothing more
about her limitations in sitting, standing, and walking than that she can sit for a
“total” of 6 hours per day, and stand/walk for a “total” of two hours per day. We
assume for purposes of this argument only that those totals are in fact correct.
(a) In finding that Ms. Winston never needs to (i) change positions between sitting
and standing during the day, (ii) use the furniture, walls, a walker, a cane, or the
assistance of a nearby coworker to stand, (iii) have assistance to move her leg after
sitting -- did the ALJ violate the rule of Ripley v. Chater?
(b) Did the ALJ fairly interpret the particular medical records she marshaled to
support her skeptical view of Plaintiff’s need for the above-mentioned work
accommodations?
5.
The ALJ found that Ms. Winston’s “diabetic retinopathy requiring laser surgeries”
and “history of cataracts” are “severe impairments” at step two. But the ALJ’s
residual functional capacity (RFC) finding assesses no visual limitations at all. Is this
a facial inconsistency that warrants remand under the “fundamental” rules in SEC v.
Chenery?
(doc. 31 at 6-7) (emphasis in original).
A.

RFC3
Plaintiff contends that the ALJ’s RFC assessment was not supported by substantial evidence.

(doc. 31 at 15, 17, 27.)
Residual functional capacity, or RFC, is defined as the most that a person can still do despite

3

Plaintiff’s issues one, two, three, and four all implicate the ALJ’s RFC assessment, so they will be considered together.
(See doc. 31 at 15, 17, 27.) Additionally, Plaintiff’s argument in her second issue regarding the ALJ’s hypothetical also
implicates step five. (Id. at 20.) Accordingly, that part of issue two will be considered separately from her RFC
argument in issue two and considered last.

14

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
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).
15

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).
1.

Lay Opinion

Plaintiff argues that the ALJ improperly relied on her own lay opinion to determine the
effects of Plaintiff’s impairments in violation of Ripley v. Chater, 67 F.3d 552 (5th Cir. 1995). (doc.
31 at 27.)
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. Ripley, 67 F.3d at 552. The Fifth Circuit noted that although an ALJ

16

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 all of the medical evidence and
opinions in the medical record, including the opinions of Drs. Castano, Fritz, Reddy, and Davis.4
(See R. at 16-19.) She concluded, “[o]verall, the claimant’s treatment notes, physical examinations,
diagnostic testing, consultative report, subjective complaints, and her activities of daily living
suggest that her physical impairments are not as severe as she alleged.” (R. at 17.) The ALJ
appeared to give little weight to Plaintiff’s subjective complaints—finding her allegations of pain
not credible in light of the medical evidence. (R. at 19.) She then discussed the doctors’ opinions.
(See R. at 18-19.)
In considering the doctors’ medical opinions, the ALJ noted that she gave the opinions of
4

Although the ALJ did not refer to Dr. Davis by name, she repeatedly referred to her consultative examination and cited
to her report throughout the RFC assessment. (See R. at 17-19.)

17

SAMCs Drs. Fritz and Reddy limited weight because they were only “somewhat consistent with the
treatment notes, consultative examinations, physical exams, diagnostic testing, subjective
complaints, and her activities of daily living.” (R. at 18.) She noted the inconsistency of Dr.
Castano’s Medical Release/Physician’s Statement, dated January 21, 2009—which was made
several years before her amended alleged onset date of February 22, 2012, and merely opined that
Plaintiff was unable to work because of a permanent disability—with the overall medical record.5
(See R. at 13, 18, 580.) She then favorably cited to Dr. Davis’s report several times. (See R. at 1619.)
The ALJ determined that Plaintiff had the RFC to perform sedentary work as defined in 20
C.F.R. § 404.1567(a) except that she could lift up to 10 pounds occasionally, stand or walk for two
hours in an eight-hour day, and sit for six hours in an eight-hour day. (R. at 16.) She could never
climb ladders, ropes, or scaffolds; occasionally climb ramps or stairs; and occasionally balance,
stoop, kneel, crouch, or crawl. (Id.) Plaintiff could also occasionally lift overhead but could have
no exposure to unprotected heights, hazards, or moving machinery. (Id.) In making this assessment
the ALJ appears to have relied primarily on the assessments of Drs. Fritz and Reddy, which were
consistent with the RFC assessment. (See. R. at 16-19.) Because the RFC was based on specific
medical opinions, the ALJ did not rely on her own lay opinion in violation of Ripley.
2.

Consideration of Evidence

Plaintiff next argues that the ALJ failed to consider her obesity and risk of falling in making

5

Plaintiff correctly noted that the ALJ attributed the statement to Edith Hawkins-Frost, PAC, instead of Dr. Castano.
(doc. 31 at 31.) Since the ALJ gave the medical opinion “limited weight because it [was] inconsistent with the overall
medical evidence of record and the issue of disability is a matter reserved for the Commissioner,” this error was
harmless. See Frank v. Barnhart, 326 F.3d 618, 620 (5th Cir. 2003) (per curiam) (noting that “[a]mong the opinions by
treating doctors that have no special significance are determinations that an applicant is ‘disabled’ or ‘unable to work’”)
(citing 20 C.F.R. § 404.1527(e)(1)).

18

her RFC assessment. (doc. 31 at 15, 17.)
As noted, 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. In Loza v. Apfel, 219 F.3d 378, 393 (5th Cir. 2000), the Fifth Circuit held
that an “ALJ must consider all the record evidence and cannot ‘pick and choose’ only the evidence
that supports his position.” Id. (citing Switzer v. Heckler, 742 F.2d 382, 385-86 (7th Cir. 1984);
Garfield v. Schweiker, 732 F.2d 605, 609 (7th Cir. 1984); Green v. Shalala, 852 F. Supp. 558, 568
(N.D. Tex. 1994); Armstrong v. Sullivan, 814 F. Supp. 1364, 1373 (W.D. Tex. 1993)). Likewise,
the substantial evidence test does not involve a simple search of the record for isolated bits of
evidence that support the ALJ’s decision. Singletary v. Bowen, 798 F.2d 818, 822-23 (5th Cir.
1986). An ALJ must address and make specific findings regarding the supporting and conflicting
evidence, the weight to give that evidence, and reasons for his or her conclusions regarding the
evidence. Armstrong, 814 F. Supp. at 1373.
There is no general duty of explanation or to provide rational and logical reasons for a
decision, however. Escalante v. Colvin, No. 3:14-CV-0641-G, 2015 WL 1443000, at *14 (N.D.
Tex. Mar. 31, 2015) (citing cases); Norris v. Berryhill, No. 3:15-CV-3634-BH, 2017 WL 1078524,
at *21 (N.D. Tex. Mar. 22, 2017) (citing Escalante, 2015 WL 1443000, at *14). The regulations
require only that an ALJ consider and evaluate medical opinions. See 20 C.F.R. §§ 404.1527(a)(2),
416.927(a)(2). They do not require an ALJ to state the weight given to each symptom and diagnosis
in the administrative record. See Proge v. Comm’r of Soc. Sec., No. 3:13-CV-310-SAA, 2014 WL
4639462, at *4 (N.D. Miss. Sept. 16, 2014) (applying 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2)).

19

a.

Obesity

Plaintiff argues that the ALJ significantly underestimated her obesity and engaged in “cherry
picking” of facts. (doc. 31 at 15-17.) She points to the ALJ’s reliance on her lowest recorded
weight, which she contends “was almost certainly a measurement error.” (Id. at 15-16.)
Although Plaintiff may disagree with the ALJ’s decision, the ALJ clearly considered the
medical evidence in the record, which included various weights from 2008 onward, and noted that
her weight had fluctuated over time. (See R. at 13-21.) Additionally, in discussing Plaintiff’s
weight, the ALJ also explicitly cited to her own hearing testimony that she weighed 375 pounds but
that her weight fluctuated and sometimes went down to 325 pounds.6 (R. at 17-18.) Because the
ALJ relied on medical evidence in the record and Plaintiff’s own testimony in making her RFC
determination, her assessment was supported by substantial evidence. See Greenspan, 38 F.3d at
236 (noting in applying the substantial evidence standard, a reviewing court does not reweigh the
evidence, retry the issues, or substitute its own judgment).
b.

Risk of Falling

Plaintiff next argues that the ALJ’s failure to consider her risk of falling in the RFC
assessment warrants remand. (doc. 31 at 17.) She also claims that the decision “does not
reviewably evaluate her risk of falling despite the fact that both a ‘rolling walker with seat’ and a

6

During the hearing on May 5, 2014, Plaintiff testified as follows:
Q
A
Q
A
Q
A

And about how much do you weigh?
About 375.
Now for the past five years or so is that your normal weight?
Yes, it fluctuates up and down.
Okay. About how much does it fluctuate?
Sometime it go down to about 325.

(R. at 34.)

20

‘shower seat’ have been medically prescribed.” (Id. at 19.)
Although Plaintiff contends that the ALJ did not take into account her risk of falling and use
of assistive devices, the RFC assessment expressly considered both. (R. at 19.) For example, the
ALJ considered Plaintiff’s activities, that she appeared at the hearing with no cane or walker and
appeared to ambulate well, that she appeared at the consultative examination without an assistive
device, that she testified that she only used the walker when she had to walk a long distance outside
of the home, and that her musculoskeletal examinations were mostly normal in January and July
2013. (R. at 18-19.) The ALJ also explicitly considered Plaintiff’s dizziness and headaches in the
decision, which she contends put her at a higher risk of falling. (R. at 19; doc. 31 at 18.) Medical
records from Parkland, which were considered by the ALJ, also contain comments to doctors from
Plaintiff regarding how often she fell and clarified that she requested the prescription for her walker.
(See R. at 615) (noting that Plaintiff was “applying for Disability and requested prescription[s] for
[a] Walker with seat and [a] shower seat”) (emphasis added); (see also R. at 814) (noting that
Plaintiff reported that she fell 10-11 times over the prior three years due to dizziness or numbness
in her legs). Because the ALJ relied on medical evidence in the record in making her RFC
determination, her assessment was supported by substantial evidence. See Greenspan, 38 F.3d at
236 (noting in applying the substantial evidence standard, a reviewing court does not reweigh the
evidence, retry the issues, or substitute its own judgment).
3.

Dr. Davis’s Medical Opinions

Plaintiff next argues that the ALJ failed to weigh the medical opinions of Dr. Davis in
making her RFC assessment. (doc. 31 at 20-21.)
The Commissioner is entrusted to make determinations regarding disability, including

21

weighing inconsistent evidence. 20 C.F.R. §§ 404.1520b(b), 404.1527(c) (2012). Every medical
opinion is evaluated regardless of its source. 20 C.F.R. § 404.1527(c)(1) (2012). Generally, an
opinion from an examining source is given more weight than the opinion from a non-examining
source. Id. The “standard of deference to the examining physician is contingent upon the
physician’s ordinarily greater familiarity with the claimant’s injuries,” however. Rodriguez v.
Shalala, 35 F.3d 560, 1994 WL 499764, at *2 (5th Cir.1994) (unpublished) (citing Moore v.
Sullivan, 919 F.2d 901, 905 (5th Cir. 1990)). “[W]here the examining physician is not the
claimant’s treating physician and where the physician examined the claimant only once, the level
of deference afforded [her] opinion may fall correspondingly.” Id. The ALJ is also free to reject
the medical opinion of any physician when the evidence supports a contrary conclusion. Bradley
v. Bowen, 809 F.2d 1054, 1057 (5th Cir. 1981). Moreover, “[w]hen a treating or examining
physician’s opinions are inconsistent with other substantial evidence in the record, the opinions are
not entitled to any specific weight in the ALJ’s decision.” Smith v. Comm’r of Soc. Sec. Admin., No.
4:12-CV-00625-DDB, 2014 WL 4467880, at *3 (E.D. Tex. Sept. 9, 2014); Morvant v. Comm'r of
Soc. Security Admin., No. 12-CV-2716, 2014 WL 868912, at *9 (W.D. La. Feb. 28, 2014) (same).
Plaintiff argues that the ALJ failed to include “key conclusions” from Dr. Davis’s
examination, including that Plaintiff “had great difficulty standing and used the furniture and wall
for support,” “she moved with slow motions,” “[s]he cannot demonstrate the ability to . . . heel/toe
walk,” and “[s]he cannot attempt to demonstrate the ability to squat.” (doc. 31 at 21-24.) She then
argues that the ALJ selectively relied on parts of Dr. Davis’s report. (Id. at 25.) The Commissioner
responds that Dr. Davis performed only a physical examination of Plaintiff and did not opine
regarding what she could do despite those impairments, nor did she discuss any of Plaintiff’s

22

physical or mental restrictions. (doc. 35 at 4-5.)
Here, Dr. Davis saw Plaintiff only once and had no doctor-patient relationship with her, so
her opinions were not entitled to controlling weight. See Rodriguez, 1994 WL 449764, at *2 (noting
where the examining physician is not the claimant’s treating physician and where the physician
examined the claimant only once, the level of deference afforded her opinion may fall
correspondingly). Although the ALJ did not explicitly refer to Dr. Davis by name, she repeatedly
referred to her consultative examination and cited to her report throughout the RFC assessment.
(See R. at 17-19.) She also favorably included a number of specific references to Dr. Davis’s
observations and medical findings, including that Plaintiff weighed 333 pounds and had 5/5 strength
in both lower extremities and upper extremities. (See R. at 16-19.) She explicitly considered the
medical findings and incorporated them into her RFC assessment, implicitly giving her report at
least some weight. 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.”); see also Walker v. Astrue, No. 4:11-CV-680-A,
2011 WL 2989947, at *9 (N.D. Tex. June 1, 2011) (“[T]he ALJ is not required to incorporate
limitations in the RFC that he did not find to be supported in the record.”), adopted by 2011 WL
2990691 (N.D. Tex. July 22, 2011). Additionally, the SAMCs relied on Dr. Davis’s examination
report in making their assessments. (See R. at 91, 94, 104, 107.) Because the ALJ considered Dr.
Davis’s report, afforded her medical opinions some weight, and discussed the reasons for her
decision in her narrative discussion, the ALJ did not commit legal error.
B.

Reconciliation of Step Two and RFC Findings
Plaintiff contends that remand is required because the ALJ erred in failing to reconcile her

23

step two and RFC findings. (doc. 31 at 34.)
As noted, the RFC is defined as the most that a person can still do despite recognized
limitations. 20 C.F.R. § 404.1545(a)(1) (2003). It “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.” SSR 96-8p, 1996 WL 374184, at *1 (S.S.A. July 2, 1996). 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.
The purpose of assessing a claimant’s RFC is to determine the work that can be done despite
present limitations. See Myers v. Apfel, 238 F.3d 617, 620 (5th Cir. 2001) (per curiam); 20 C.F.R.
§ 404.1545(a). Federal courts in Texas have found that when impairments are identified as severe
at step two but an RFC does not include any limitations for those impairments, the RFC in effect
contradicts the step two finding. See Walker v. Colvin, No. 3:14-CV-1498-L, 2015 WL 5836263,
at *15 (N.D. Tex. Sept. 30, 2015) (citing cases); Spears v. Barnhart, 284 F. Supp. 2d 477, 483 (S.D.
Tex. 2002) (noting that by failing to include any limitations, the ALJ “basically contradict[ed] the
fact that he found [the claimant’s] impairments to be severe”); Norman v. Astrue, No. SA-10-CA849-XR, 2011 WL 2884894, at *6 (W.D. Tex. July 18, 2011) (“Similar to Spears, here the ALJ did
not include any limitations resulting from the [impairment], contradicting his own finding that the
[impairment] was ‘severe.’”); cf. Rangel v. Astrue, No. H-08-2246, 2009 WL 2971129, at *15 &
n.11 (S.D. Tex. Sept. 14, 2009) (contrasting the facts with Spears, the district court noted that the
ALJ found the claimant’s depression to be severe and assessed the appropriate mental limitations
in his RFC determination for any residual effects of his depression). This inconsistency generally

24

warrants remand. See, e.g., Spears, 284 F. Supp. 2d at 483-84 (finding the ALJ’s failure to address
the claimant’s limitations related to her severe impairment was error that warranted remand);
Norman, 2011 WL 2884894, at *6 (finding remand was warranted where the ALJ found the
claimant’s limitation was severe at step two, but failed to include any limitation resulting from the
impairment in his RFC analysis); Martinez v. Astrue, No. 2:10-CV-0102, 2011 WL 4128837, at *7
(N.D. Tex. Sept. 15, 2011) (same), adopted by 2011 WL 4336701 (N.D. Tex. Sept. 15, 2011).
For example, in Martinez v. Astrue, an ALJ failed to include limitations resulting from a
plaintiff’s hand surgery in the RFC despite finding that the hand surgery was a severe impairment.
Martinez, 2011 WL 4128837, at *5-6. After noting that the ALJ may have made a mistake at step
two or made a credibility determination regarding the claimant’s limitations in deciding the RFC,
the court explained that “on appellate review, [a court] cannot speculate as to what the ALJ may
have considered.” Id. at *7. It remanded the case because it was unable to determine whether the
ALJ intended the hand surgery to be a severe impairment, and if so, whether the RFC should have
included certain limitations relating to it. Id. at *7 (noting “this Court cannot find that the ALJ’s
inclusion of the . . . severe impairment was merely meaningless verbiage”).
Nevertheless, “having a severe impairment is not a sufficient condition for receiving benefits
under the Secretary’s regulations” and “means only that [the] claimant has passed the second step
of the inquiry mandated by the regulations.” Shipley v. Sec. of Health & Human Servs., 812 F.2d
934, 935 (5th Cir. 1987) (per curiam). In other words, the consideration of whether a claimant’s
impairments are severe at step two is a different inquiry than an ALJ’s assessment of the claimant’s
RFC. See Gutierrez v. Barnhart, No. 04-11025, 2005 WL 1994289, at *9 (5th Cir. Aug. 19, 2005)
(per curiam) (“A claimant is not entitled to social security disability benefits merely upon a showing

25

that she has a severe disability. Rather, the disability must make it so the claimant cannot work to
entitle the claimant to disability benefits.”); see also Boyd v. Apfel, 239 F.3d 698, 706 (5th Cir.
2001) (“The ALJ’s finding that [the claimant] had a ‘combination of impairments that [were] severe’
did not foreclose a finding that [the claimant] had a residual functional capacity to perform a range
of light work, and is not necessarily inconsistent with that finding.”); Quigley v. Astrue, No. 4:09CV-402-A, 2010 WL 5557500, at *8 (N.D. Tex. Sept. 8, 2010) (noting that step two and the RFC
determination are different inquiries), adopted by 2011 WL 61630 (N.D. Tex. Jan 5, 2011).
In cases where reviewing courts have found that an ALJ did not err in finding severe
impairments at step two and not attributing any limitation to those impairments in the RFC
assessment, the ALJs considered the limitations that were encompassed by the severe impairments
or accounted for the limitations in some respect before making a disability finding. See, e.g.,
Gonzalez v. Colvin, No. 4:12-CV-641-A, 2014 WL 61171, at *6-7 (N.D. Tex. Jan. 6, 2014) (finding
the ALJ’s decision was not subject to reversal where he did not set forth specific limitations in his
RFC determination relating only to the claimant’s severe impairment but found other limitations that
took into account the claimant’s severe impairment); Carnley v. Colvin, No. 3:12-CV-3535-N, 2013
WL 5300674, at *9 (N.D. Tex. Sept. 20, 2013) (finding although the ALJ erred by finding claimant’s
seizure disorder to be a severe impairment and failing to incorporate limitations from the disorder
into the RFC, it was clear he intended to include seizure limitations because the hypothetical
questions posed to the VE at the hearing included such limitations, so there was no need to remand
the case); Scott v. Colvin, No. 4:12-CV-01569, 2013 WL 6047555, at *11 (S.D. Tex. Nov. 14, 2013)
(finding that the ALJ “fully addressed the impact of [the claimant’s severe impairment] on her
ability to do sustained work activities”).

26

Plaintiff argues that the ALJ erred in failing to assess any visual limitation in her RFC,
despite finding that Plaintiff had a history of cataracts and diabetic retinopathy requiring laser
surgeries as severe impairments at step two. (doc. 31 at 34.) Finding these impairments were severe
at step two, however, does not mandate additional limitations in the RFC. Shipley, 812 F.2d at 935
(“Satisfying the Stone test of severity means only that claimant has passed the second step of the
inquiry mandated by the regulations.”). The ALJ must clearly consider the severe impairments in
determining the claimant’s RFC, not necessarily assess limitations for each severe impairment. See,
e.g., Campbell v. Berryhill, No. 3:15-CV-3913-N, 2017 WL 1102797, at *12 (Feb. 24, 2017)
(finding error where “the ALJ expressly found that Plaintiff’s deep vein thrombosis was one of
twelve severe impairment at step two, but he did not expressly address what impact, if any, it had
in determining Plaintiff’s RFC”) (emphasis added), adopted by 2017 WL 1091651 (N.D. Tex. Mar.
23, 2017).
Here, the ALJ found that Plaintiff had the following severe impairments: diabetes mellitus
with neuropathy, history of amputated right fifth toe, history of cataracts, diabetic retinopathy
requiring laser surgeries, hypertension, history of chronic kidney disease, right adrenal mass, mild
degenerative joint disease of the knee, and morbid obesity. (R. at 15.) Despite these impairments,
at step three, she found that Plaintiff 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 15-16.)
Next, the ALJ determined that Plaintiff had the RFC to perform sedentary work as defined in 20
C.F.R. § 404.1567(a) except that she could lift up to 10 pounds occasionally, stand or walk for two
hours in an eight-hour day, and sit for six hours in an eight-hour day. (R. at 16.) She could never
climb ladders, ropes, or scaffolds; occasionally climb ramps or stairs; and occasionally balance,

27

stoop, kneel, crouch, or crawl. (Id.) Plaintiff could also occasionally lift overhead but could have
no exposure to unprotected heights, hazards, or moving machinery. (Id.)
By explicitly considering the impact of her diabetes mellitus with neuropathy and her
retinopathy with laser on her vision, the ALJ provided a sufficient explanation showing that she
considered the severe impairments in making the RFC assessment. (See R. at 16-19); cf. Martinez,
2011 WL 4128837, at *5-6 (“Without some explanation in the record as to how plaintiff can suffer
from a severe impairment, which by definition must have more than a minimal effect on plaintiff’s
ability to work and why such severe impairment would not have had any limitation on plaintiff’s
ability to . . . [fulfill the necessary functions of] the jobs identified by the vocational expert, the
decision cannot stand.”) (emphasis added).

Accordingly, the ALJ considered the medical

impairments from step two when she made her RFC determination and assessed Plaintiff’s
limitations based on their impact on her actual ability to do work. There is therefore no
inconsistency between the ALJ’s step two findings and her RFC determination.7
C.

Significant Number of Jobs
Plaintiff also generally contends that substantial evidence does not support the ALJ’s step

five finding that she retains the ability to perform other jobs in significant numbers in the national
economy. (doc. 31 at 20.)
To be considered disabled, a claimant must have a severe impairment that makes her unable
to perform her 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

7

Although Plaintiff cites to S.E.C. v. Chenery Corp., 332 U.S. 194 (1947) to support the position that where the written
decision is ambiguous or internally inconsistent, the proper course is to remand so that the fact-finder’s intent can be
clarified rather than be speculatively reviewed, (doc. 31 at 34), the ALJ’s decision is neither ambiguous nor internally
inconsistent on this issue.

28

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 [her] 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) (citing Fraga, 810 F.2d at 1302).
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
question8 or other similar evidence, or on the Medical–Vocational Guidelines promulgated to guide
this determination, often referred to as “the Grids.”9 Newton, 209 F.3d at 458; Bowling v. Shalala,
36 F.3d 431, 435 (5th Cir. 1994) (per curium); 20 C.F.R. Pt. 404, Subpt. P, App. 2 (2008). 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, 36 F.3d at 436; see also Hernandez v.
Astrue, 269 F. App’x 511, 515 (5th Cir. 2008) (citing Masterson v. Barnhart, 309 F.3d 267, 273 (5th
Cir. 2002)).
A claimant’s failure to point out deficiencies in a hypothetical question does not, however,
8

“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)).
9

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.

29

“automatically salvage that hypothetical as a proper basis for a determination of non-disability.”
Boyd v. Apfel, 239 F.3d 698, 707 (5th Cir. 2001). The ALJ’s failure to reasonably incorporate a
claimant’s disability into his or her hypothetical questions may render those questions defective if
the disability severely limits the claimant’s job prospects. See Bridges v. Comm’r of Soc. Sec.
Admin., 278 F. Supp. 2d 797, 806-07 (N.D. Tex. 2003). 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 a claimant could perform available work despite an impairment. Boyd,
239 F.3d at 708.
Here, the Plaintiff argues that the ALJ’s hypothetical question to the VE failed to apprise her
of Plaintiff’s (1) extreme obesity and (2) her significant risk of falling. (doc. 31 at 20.) She relies
solely on her disagreement with the RFC assessment and her argument that the RFC was not
supported by substantial evidence. (See id.) The ALJ’s RFC finding is supported by substantial
evidence, however, so the ALJ’s hypothetical was not deficient by failing to include her obesity and
risk of falling. Accordingly, the ALJ did not err in basing her decision at step five on the VE’s
response to her hypothetical.
IV. CONCLUSION
The Commissioner’s decision is AFFIRMED.
SO ORDERED this 31st day of March, 2017.

___________________________________
IRMA CARRILLO RAMIREZ
UNITED STATES MAGISTRATE JUDGE

30