Donelly v. Colvin

Filing 14

MEMORANDUM OPINION: denying 7 MOTION for Summary Judgment , granting 9 MOTION for Summary Judgment (Signed by Magistrate Judge Nancy K. Johnson) Parties notified.(sbutler, 4)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
PAULA S. DONELLY,

§
§
Plaintiff,
§
§
v.
§
§
CAROLYN W. COLVIN,
§
ACTING COMMISSIONER OF THE
§
SOCIAL SECURITY ADMINISTRATION, §
§
Defendant.
§

CIVIL ACTION NO. G-13-0165

MEMORANDUM OPINION
Pending before the court1 are Plaintiff’s Motion for Summary
Judgment (Docs. 7) and Defendant’s Motion for Summary Judgment
(Doc. 9). The court has considered the motions, the administrative
record, and the applicable law.

For the reasons set forth below,

the court DENIES Plaintiff’s motion and GRANTS Defendant’s motion.
I.

Case Background

Plaintiff filed this action pursuant to 42 U.S.C. § 405(g) for
judicial review of an unfavorable decision by the Commissioner of
the Social Security Administration (“Commissioner” or “Defendant”)
regarding Plaintiff’s claims for disability insurance benefits and
supplemental

security

income

under

Title

II

and

Title

XVI,

respectively, of the Social Security Act (“the Act”).
A.

Medical History

1
The parties consented to proceed before the undersigned
magistrate judge for all proceedings, including trial and final judgment,
pursuant to 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73. Docs.
12, 13.

On August 9, 2010, Plaintiff was examined by Donald MacDonald,
M.D., (“Dr. MacDonald”), her treating physician since at least
2009.2

Plaintiff reported pain in her left heel and was diagnosed

with plantar fasciitis and a calcaneal spur.3

Plaintiff again

visited Dr. MacDonald on November 23, 2010, for prescription
refills treating diabetes, hypertension, and high cholesterol.4
Plaintiff stated that she was suffering from pain in her left
foot.5

On December 29, 2010, Plaintiff met with Dr. MacDonald

complained

of

foot

pain

and

a

twisted

left

ankle.6

and

In his

treatment plan, Dr. MacDonald recommended increased arch support.7
On

February

27,

2011,

Plaintiff

visited

the

Clear

Lake

Emergency Room reporting foot pain and ankle swelling; she was
given an x-ray by Larry Schock, M.D., (“Dr. Schock”).8

Dr. Schock

reported that there was evidence of “mild degenerative change,”
moderately prominent plantar calcaneal enthesophytes (heel spurs),
and mild soft-tissue swelling.9
evidence

of

soft

tissue

Dr. Schock noted that there was no

gas,

erosive

change,

or

2

See Tr. of the Admin. Proceedings (“Tr.”) 219, 263.

3

See Tr. 263.

4

See id.

5

See Tr. 262.

6

See Tr. 260.

7

See id.

8

See Tr. 258-59.

9

See Tr. 258.

2

periosteal

reaction.10
On April 8, 2011, Plaintiff again visited Dr. MacDonald,
reporting continued pain in her foot.11 Dr. MacDonald also refilled
Plaintiff’s maintenance medications for diabetes, high cholesterol,
and hypertension.12
On July 28, 2011, Plaintiff again visited Dr. MacDonald to
review the results of lab work.13

Dr. MacDonald again refilled

Plaintiff’s prescriptions.14 Dr. MacDonald did not record any notes
regarding Plaintiff’s foot pain.15
On November 18, 2011, Plaintiff returned to Dr. MacDonald.16
Plaintiff indicated to Dr. MacDonald that she could not afford to
pay for her prescriptions.17

Dr. MacDonald renewed Plaintiff’s

prescriptions, although there is no indication in the record that
the prescriptions were filled.18
B.

Application to Social Security Administration
Plaintiff

protectively

10

See id.

11

See Tr. 257.

12

See id.

13

See Tr. 256.

14

See id.

15

See id.

16

See Tr. 255.

17

See id.

18

applied

See id.

3

for

disability

insurance

benefits and supplemental security income on March 10, 2011,
claiming an inability to work due to diabetes, arthritis, foot
neuropathy,

and

dyslexia.19

In

her

application,

Plaintiff

identified March 4, 2011, as the alleged onset date of disability.20
Prior to that date, Plaintiff worked as a cafeteria worker in a
nursing home.21
In a Function Report, completed on Plaintiff’s behalf by her
sister-in-law on April 2, 2011, Plaintiff described her daily
activities.22

Plaintiff disclosed that her daily schedule involved

getting dressed, watching television, preparing lunch and dinner,
and taking a bath.23

Plaintiff stated that she was unable to clean

her house but that she did laundry weekly.24

Plaintiff estimated

that she went outside once a day and shopped weekly.25
that

she

was

able

to

drive.26

Plaintiff

indicated

She stated
that

she

struggled to pay her bills, use a checkbook, or count change.27 She
noted that she could use money orders and manage a savings account,

19

See Tr. 123-30.

20

See Tr. 153.

21

See Tr. 157.

22

See Tr. 161-68.

23

See Tr. 162.

24

See Tr. 163.

25

See Tr. 164.

26

See id.

27

See id.

4

although she did not have a savings account at the time.28
Plaintiff reported that she had no hobbies but did spend time
with others.29

Plaintiff stated that her disability affected her

ability to lift, squat, bend, stand, walk, kneel, climb stairs,
complete tasks, and concentrate.30 She reported that she could walk
for “a few minutes” but would need to rest for forty-five minutes
afterwards.31

Plaintiff

indicated

that

her

dyslexia

made

it

difficult to follow written instructions and that pain interfered
with concentration.32

Plaintiff stated that she did not handle

stress or changes in routine very well.33

Plaintiff noted that she

wore glasses and a brace at all times and used crutches when she
needed to walk, although only the glasses were prescribed to her by
a doctor.34

Plaintiff reported that she was prescribed several

medications: Metformin HCL, Glyburide, Lovastatin, Lisinopril, and
Diclofenac.35
On May 26, 2011, at the request of the Texas Disability
Determination Services (“TDDS”), Plaintiff was examined by James

28

See Tr. 164, 168.

29

See Tr. 165.

30

See Tr. 166.

31

See id.

32

See id.

33

See Tr. 167.

34

See id.

35

See Tr. 168.

5

Tran, M.D., (“Dr. Tran”).36

Plaintiff complained of left ankle

pain, difficulty walking more than two blocks, lower extremity
neuropathy due to diabetes, difficulty learning new tasks, and
forgetfulness.37

Dr. Tran noted that Plaintiff did not complain of

any chest pain or shortness of breath.38

Dr. Tran observed that

Plaintiff was ambulatory with a limp on her left side and that
Plaintiff was unable to put full weight on her left ankle.39
Tran

observed

that

there

was

some

swelling

and

Dr.

tenderness

associated with Plaintiff’s ankle that limited Plaintiff’s ability
to tiptoe, walk on her heels, or squat.40
Plaintiff’s

ankle

destruction.41

did

not

have

gross

Dr. Tran found that

tissue

damage

or

bone

Dr. Tran observed that, while Plaintiff complained

of some numbness in her lower extremeties, she maintained normal
strength and tendon reflexes in both legs.42
On

July

25,

2011,

Kelvin

Samaratunga,

M.D.,

(“Dr.

Samaratunga”), completed a Physical Residual Function Capacity
(“RFC”) Assessment.43

36

See Tr. 235.

37

See id.

38

See id.

39

See id.

40

See id.

41

See id.

42

See id.

43

In his assessment, Dr. Samaratunga opined

See Tr. 238-45.

6

that

Plaintiff

could

occasionally

lift

up

to

twenty

pounds,

frequently lift up to ten pounds, stand for about six hours of a
workday, sit for about six hours of a workday, and push or pull
without limit.44

Dr. Samaratunga noted that Plaintiff could only

occasionally climb stairs or balance and could not climb ropes,
ladders, or scaffolds.45

Dr. Samaratunga reported that Plaintiff

complained of foot pain and neuropathy and noted that Plaintiff’s
use of crutches was not supported by objective findings.46
Samaratunga

concluded

that

Plaintiff’s

claims

were

Dr.

partially

supported.47
On September 1, 2011, Shabnam Rehman, M.D., (“Dr. Rehman”),
completed a second Physical RFC Assessment.48

Dr. Rehman largely

agreed with the findings of Dr. Samaratunga, but found that
Plaintiff could stand and walk for only three hours in a workday.49
Dr. Rehman observed that Plaintiff could not squat, tiptoe, or walk
on her heels but that Plaintiff’s ankle could bear her weight.50
He indicated that Plaintiff’s limp had improved and noted that her

44

See Tr. 239.

45

See Tr. 240.

46

See Tr. 243.

47

See Tr. 245.

48

See Tr. 246-53.

49

See Tr. 247.

50

See Tr. 253.

7

crutches were not prescribed and not used at the appointment.51 Dr.
Rehman opined that Plaintiff’s claims were partially supported.52
On

March

7,

2012,

Dr.

MacDonald

completed

impairment questionnaire on Plaintiff’s behalf.53

a

multiple

Dr. MacDonald

indicated that he had treated Plaintiff since August 2007 on an “at
least twice a month” schedule.54 Dr. MacDonald noted that Plaintiff
suffered from diabetes, high cholesterol, calcaneal spurs, plantar
fasciitis, and septic dermatitis.55

Dr. MacDonald indicated that

Plaintiff suffered from pain in her feet and her arms, with a focus
on her heels.56

He rated Plaintiff’s pain and fatigue levels at

nine out of ten and stated that he could not reduce the pain
without side effects.57

Dr. MacDonald opined that Plaintiff could

stand for only one hour and sit for two hours in a workday and
recommended that Plaintiff not sit or stand continuously in a work
setting.58

Dr. MacDonald reported that Plaintiff’s condition would

prevent her from keeping her neck in a constant position and

51

See id.

52

See id.

53

See Tr. 278-85.

54

See Tr. 278.

55

See id.

56

See id.

57

See Tr. 280.

58

See id.

8

predicted that her symptoms would worsen in a work environment.59
Dr. MacDonald stated that Plaintiff was in constant pain with an
ongoing duration expected to last at least twelve months.60

Dr.

MacDonald further indicated that Plaintiff would need to take
unscheduled breaks every thirty minutes.

Dr. MacDonald responded

to the question “are there any other limitations that would affect
your patient’s ability to work at a regular job on a sustained
basis?” by writing in “all of the above.”61

Dr. MacDonald reported

that Plaintiff suffered from these limitations as of August 15,
2007.62
Defendant denied Plaintiff’s application at the initial and
reconsideration levels.63
administrative

law

Plaintiff requested a hearing before an

judge

(“ALJ”)

of

the

Social

Security

Administration.64 The ALJ granted Plaintiff’s request and conducted
a hearing on March 8, 2012.65
C.

Hearing
Plaintiff and a vocational expert (“VE”) testified at the

59

See Tr. 282.

60

See Tr. 283.

61
See Tr. 284. This question listed fifteen additional limitations,
including “need to avoid wetness,” “need to avoid dust,” and “psychological
limitations,” limitations not addressed elsewhere in the record. See id.
62

See id.

63

See Tr. 60-71, 73-78.

64

See Tr. 79-80.

65

See Tr. 38-59, 93-116.

9

hearing.66

Plaintiff was represented by an attorney.67

Plaintiff testified that she was born on January 11, 1965, and
was forty-seven years old at the time of the hearing.68

Plaintiff

testified that she was single, lived alone, and last worked on
March 4, 2011.69

She stated that, although she graduated from high

school, she had limited ability to read and write.70
Plaintiff’s attorney led an examination of Plaintiff, who
testified that she used crutches “all the time.”71

Plaintiff

testified that she used crutches around the house, although she
stated that she could get up from the couch and walk short
distances without them.72

She stated that, while the crutches she

took to the hearing were not prescribed, she had previously
received a prescription for them.73

Plaintiff testified that she

could walk without crutches only on level surfaces.74

She further

testified that when she went shopping, she was able to use the

66

See Tr. 38-59.

67

See Tr. 38.

68

See Tr. 44.

69

See Tr. 45, 47.

70

See Tr. 46.

71

See Tr. 50.

72

See id.

73

See Tr. 51.

74

See id.

10

grocery cart for balance.75 Plaintiff stated that she tried to find
a job where she did not have to stand but was unsuccessful.76
Plaintiff indicated that she believed she could work at a job where
she did not have to stand and walk more than two hours a day or
lift anything heavier than ten pounds.77
The ALJ then questioned the VE regarding Plaintiff’s past
employment.78

The VE concluded that Plaintiff’s past job as a

dining room attendant was an unskilled position performed at the
light exertion level.79
The

VE

testified

that

there

were

jobs

available

for

individuals restricted to sedentary, unskilled work with limited
reading, including surveillance system monitor, sorter, order
clerk, or document preparer.80

The VE stated that there were no

jobs at the sedentary, unskilled level for individuals limited by
severe pain that caused loss of concentration and attention, or
difficulties meeting attendance standards or performing regular
work.81
D.

Commissioner’s Decision
75

See id.

76

See Tr. 51-52.

77

See Tr. 52.

78

See Tr. 53.

79

See Tr. 54.

80

See Tr. 54, 58.

81

See Tr. 54.

11

On April 10, 2012, the ALJ issued an unfavorable decision.82
The ALJ found that Plaintiff had not engaged in substantial gainful
activity since March 4, 2011, and that she had multiple impairments
that were severe, although Plaintiff’s impairment due to dyslexia
was found to be mild.83
impairments,

According to the ALJ, Plaintiff’s severe

individually

or

collectively,

did

not

meet

or

medically equal any of the listings of the regulations84 (“The
Listings”).85
The ALJ found that Plaintiff’s ankle condition did not meet
Listing 1.02 because Plaintiff did not have chronic joint pain and
stiffness with signs of limitation of motion or abnormal motion of
the joints.86

The ALJ noted that Plaintiff did not offer evidence

of joint space narrowing, bony destruction, or ankylosis of the
joints.

The ALJ also found that there was not an inability to

ambulate effectively, as defined by Listing 1.00 Paragraph B.87
The ALJ found that diabetes alone could not meet a Listing,
but considered it in the context of Plaintiff’s claim of peripheral
neuropathy.88

The ALJ determined that Plaintiff did not have

82

See Tr. 19-36.

83

See Tr. 24, 25.

84

20 C.F.R. Pt. 404, Subpt. P, App. 1.

85

See Tr. 25.

86

See id.

87

See id.

88

See Tr. 26.

12

significant and persistent disorganization of motor function in two
extremities as required to meet Listing 11.14 Paragraph B.89
The

ALJ

similarly

observed

that

Plaintiff’s

obesity

arthritis did not meet or medically equal a Listing.90

and

The ALJ

found that Plaintiff did not display the level of cardiovascular
degradation necessary to meet a Listing under Section 4.00 and that
Plaintiff’s obesity did not prevent her from ambulating effectively
under Listing 1.02.91
The ALJ determined Plaintiff was capable of performing work at
the sedentary level with the following limitations: (1) never
climbing ropes, ladders, and scaffolds; and (2) not requiring
extensive reading.92

The ALJ made her determination based on

Plaintiff’s testimony and function report, the examination by Dr.
Tran, the opinions of Dr. Samaratunga and Dr. Rehman, and the
questionnaire and notes completed by Dr. MacDonald.93
The ALJ found that, although Plaintiff testified that her
activities

were

fairly

limited,

her

statements

regarding

the

severity of her symptoms and their effect on her work-related

89

See id.

90

See id.

91

See id.

92

See id.

93

See Tr. 27-28.

13

abilities

were

not

entirely

credible.94

The

ALJ

noted

that

Plaintiff did not obtain a prescription for crutches until days
after the hearing.95

The ALJ noted that, in Plaintiff’s function

report, she stated that she was able to shop, cook, and drive.96
Plaintiff
provided

also
for

performed

her

personal

household
care.97

chores
The

ALJ

and

independently

also

found

that

Plaintiff’s application and subsequent receipt of unemployment
benefits reflected poorly on her credibility because, in order to
receive unemployment, Plaintiff certified that she was ready,
willing, and able to work.98
The ALJ considered the evidence collected by Dr. Tran and the
opinions of Dr. Samaratunga and Dr. Rehman and found that Plaintiff
was more limited than the doctors suggested.99 Both Dr. Samaratunga
and Dr. Rehman opined that Plaintiff was able to work with light
physical exertion; however, the ALJ found that Plaintiff was
limited to work at the sedentary level.100
The ALJ also considered the questionnaire produced by Dr.
MacDonald and found that Dr. MacDonald’s conclusions regarding the
94

See Tr. 27.

95

See id.

96

See id.

97

See id.

98

See id.

99

See Tr. 27-28.

100

See Tr. 28.

14

nature and severity of Plaintiff’s impairments were not supported
by

the

record.101

The

ALJ

based

this

determination

on

Dr.

MacDonald’s records, including treatment notes and x-rays, that
reflected

only

enthesophytes.102

minor

degenerative

changes

and

calcaneal

Based on the questionnaire’s inconsistencies,

including inconsistencies regarding the frequency of treatment and
the

date

of

onset,

the

ALJ

considered

it

likely

that

the

questionnaire was based on Plaintiff’s self-reports rather than Dr.
MacDonald’s conclusions.103 The ALJ noted that Dr. MacDonald signed
the questionnaire, however, because of the handwriting and other
discrepancies,

questioned

whether

Dr.

MacDonald

personally

completed the form.104 The ALJ found that Dr. MacDonald’s purported
opinions recorded on check-box or form reports, without explanation
or supporting rationale, may be accorded little or no weight.105
The ALJ concluded that Plaintiff’s function report was wellsupported by the medical evidence.106

The ALJ gave deference to

Plaintiff’s testimony regarding her restrictions, but found that,
while she was limited, she was not precluded from all gainful

101

See Tr. 28-29.

102

See Tr. 29-30.

103

See Tr. 30.

104

See id.

105

See id.

106

See id.

15

activity.107
The ALJ found that Plaintiff was unable to perform any past
relevant

work,

exertion.108

as
The

her
ALJ

previous
observed

employment
that,

required

despite

light

Plaintiff’s

restrictions, there were jobs available in significant numbers that
she could perform.109

Relying on the testimony of the VE, the ALJ

found that Plaintiff could work as a surveillance system monitor,
sorter, or order clerk.110

The ALJ therefore found that Plaintiff

was not disabled from March 4, 2011, through the date of the ALJ’s
decision.111
Plaintiff appealed the ALJ’s decision, and, on March 19, 2013,
the Appeals Council denied Plaintiff’s request for review, thereby
transforming the ALJ’s decision into the final decision of the
Commissioner.112

After receiving the Appeals Council’s denial,

Plaintiff timely sought judicial review of the decision by this
court.113
II.

Standard of Review and Applicable Law

107

See id.

108

See id.

109

See Tr. 31.

110

See id.

111

See Tr. 32.

112

See Tr. 1-4.

113

See Tr. 2, 4; Doc. 1, Pl.’s Compl.

16

The court’s review of a final decision by the Commissioner
denying disability benefits is limited to the determination of
whether: 1) the ALJ applied proper legal standards in evaluating
the record; and 2) substantial evidence in the record supports the
decision.
A.

Waters v. Barnhart, 276 F.3d 716, 718 (5th Cir. 2002).

Legal Standard
In order to obtain disability benefits, a claimant bears the

ultimate burden of proving she is disabled within the meaning of
the Act.

Wren v. Sullivan, 925 F.2d 123, 125 (5th Cir. 1991).

Under the applicable legal standard, a claimant is disabled if she
is unable “to engage in any substantial gainful activity by reason
of any medically determinable physical or mental impairment. . .
which has lasted or can be expected to last for a continuous period
of not less than twelve months.”

42 U.S.C. § 423(d)(1)(A); see

also Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994).

The

existence of such a disabling impairment must be demonstrated by
“medically acceptable clinical and laboratory diagnostic” findings.
42 U.S.C. § 423(d)(3); see also 42 U.S.C. § 423(d)(5)(A); Jones v.
Heckler, 702 F.2d 616, 620 (5th Cir. 1983).
To determine whether a claimant is capable of performing any
“substantial

gainful

activity,”

the

regulations

provide

that

disability claims should be evaluated according to the following
sequential five-step process:
(1) a claimant who is working, engaging in a substantial
gainful activity, will not be found to be disabled no
17

matter what the medical findings are; (2) a claimant will
not be found to be disabled unless [s]he has a “severe
impairment;” (3) a claimant whose impairment meets or is
equivalent to [a Listing] will be considered disabled
without the need to consider vocational factors; (4) a
claimant who is capable of performing work that [s]he has
done in the past must be found “not disabled;” and (5) if
the claimant is unable to perform h[er] previous work as
a result of h[er] impairment, then factors such as h[er]
age, education, past work experience, and [RFC] must be
considered to determine whether [s]he can do other work.
Bowling v. Shalala, 36 F.3d 431, 435 (5th Cir. 1994); see also 20
C.F.R. §§ 404.1520, 416.920.

The analysis stops at any point in

the process upon a finding that the claimant is disabled or not
disabled.
B.

Greenspan, 38 F.3d at 236.

Substantial Evidence
The widely accepted definition of “substantial evidence” is

“that quantum of relevant evidence that a reasonable mind might
accept as adequate to support a conclusion.” Carey v. Apfel, 230
F.3d 131, 135 (5th Cir. 2000).

It is “something more than a

scintilla but less than a preponderance.”

Id.

The Commissioner

has the responsibility of deciding any conflict in the evidence.
Id.

If the findings of fact contained in the Commissioner’s

decision are supported by substantial record evidence, they are
conclusive, and this court must affirm.

42 U.S.C. § 405(g);

Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir. 1990).
Only if no credible evidentiary choices of medical findings
exist to support the Commissioner’s decision should the court
overturn it.

Johnson v. Bowen, 864 F.2d 340, 343-44 (5th Cir.

18

1988).

In applying this standard, the court is to review the

entire record, but the court may not reweigh the evidence, decide
the issues de novo, or substitute the court’s judgment for the
Brown v. Apfel, 192 F.3d 492, 496 (5th

Commissioner’s judgment.
Cir. 1999).

In other words, the court is to defer to the decision

of the Commissioner as much as is possible without making its
review meaningless.

Id.
III.

Analysis

Plaintiff requests judicial review of the ALJ’s decision to
deny

disability

benefits.

Plaintiff

asserts

that

the

ALJ’s

decision contains two errors: 1) the ALJ erred in failing to give
Dr. MacDonald’s opinions controlling weight; and 2) the ALJ erred
in questioning Plaintiff’s credibility.

Defendant disagrees with

Plaintiff on both of the asserted errors, contending that the ALJ’s
decision is legally sound and is supported by substantial evidence.
A.

Failure to Give Controlling Weight to Treating Physician’s
Opinion
Plaintiff contends that the medical opinions of Dr. MacDonald,

Plaintiff’s treating physician, were entitled to controlling weight
in the ALJ’s determination.

The ALJ’s failure to afford Dr.

MacDonald’s opinions such deference without good reason, Plaintiff
argues, constitutes an improper application of legal standards
under the Act.
“A treating physician’s opinion on the nature and severity of
a patient’s impairment will be given controlling weight if it is
19

well-supported by medically acceptable clinical and laboratory
diagnostic

techniques

and

is

not

inconsistent

with

other

substantial evidence.” Newton v. Apfel, 209 F.3d 448, 455 (5th Cir.
2000)(internal quotations omitted); see SSR 96-2p, 1996 WL 374188,
at *1 (July 2, 1996) (explaining when medical opinions by treating
physicians are entitled to controlling weight).

However, the ALJ

ultimately may give less weight to the medical opinion of any
physician when the statements are conclusory, unsupported, or
otherwise incredible. Greenspan, 38 F.3d at 237. When deciding to
do so, the ALJ must indicate the specific reasons for discounting
the treating source’s medical opinion.

See SSR 96-2p.

Here, the ALJ thoroughly summarized the medical evidence
provided

by

Dr.

MacDonald.114

In

recounting

her

reasons

for

rejecting Dr. MacDonald’s questionnaire as controlling, the ALJ
stated that Dr. MacDonald’s opinions were “not well supported by
the record and [were] inconsistent with the other substantial
evidence of the record including treatment notes.”115 Specifically,
the ALJ cited Dr. MacDonald’s treatment records that documented
“mild degenerative changes” as not supportive of Dr. MacDonald’s
conclusions.116

Dr. MacDonald’s opinion was inconsistent not only

with his treatment notes, but with Plaintiff’s testimony.

114

See Tr. 28-30.

115

See Tr. 30.

116

See id.

20

Dr.

MacDonald stated that Plaintiff could sit for only two hours in an
eight-hour workday.117
medical

evidence

in

This statement was not supported by any
the

record,

nor

was

it

consistent

with

Plaintiff’s function report or her testimony at the hearing.118
When asked by her attorney “If someone were to give you a job. . .
and you did not have to stand and walk more than two hours in a
day. . . would you be able to do something like that?” Plaintiff
answered: “Probably. Yes.”119
The

ALJ

MacDonald’s

indicated

notes

that

regarding

the
the

discrepancies
doctor’s

found

conclusions

in

Dr.

and

the

frequency of visitation called into question whether Dr. MacDonald
personally prepared the form.120

The ALJ noted that such form

reports, absent supporting rationale, may be accorded little or no
weight.121

The ALJ thus relied on substantial evidence of record

and properly adhered to legal procedures in determining that less
than controlling weight should be given to Dr. MacDonald’s medical
opinion.
B.

Plaintiff’s Credibility

Plaintiff also argues that the ALJ erred by questioning

117

See Tr. 280.

118

See Tr. 52, 166. Plaintiff indicated that her ability to sit was not
affected by her condition. See Tr. 166.
119

Tr. 52.

120

See Tr. 30.

121

See id.

21

Plaintiff’s testimony at the hearing regarding the severity of her
symptoms and their affect on her ability to work.
While an ALJ must consider a claimant’s complaints of pain,
she is permitted to examine the medical evidence to find that
claimant’s complaints are exaggerated or not credible.
Heckler, 767 F.2d 180, 182 (5th Cir. 1985).

Johnson v.

Additionally, the

Fifth Circuit has held that an ALJ was correct in considering a
claimant's ability to perform household chores when evaluating the
credibility of her complaints. See Vaughn v. Shalala, 58 F.3d 129,
131 (5th Cir. 1995).

When an ALJ’s opinion is supported by

substantial evidence, the court must defer to the ALJ’s assessment.
Villa v. Sullivan, 895 F.2d 1019, 1024 (5th Cir. 1990).
In this case, the ALJ properly recited Plaintiff’s testimony
and weighed it against both the objective medical evidence and
Plaintiff’s previous statements contained in her function report.122
Specifically, the ALJ compared the Plaintiff’s function report with
her testimony at the hearing that she required crutches at all
times.

Her function report indicated that she did not have a

prescription, while at the hearing, Plaintiff testified that her
crutches were prescribed.
The ALJ focused on contradictions in Plaintiff’s testimony
with recorded statements in her function report and the fact that
she collected unemployment benefits while claiming to be disabled

122

See Tr. 26-27.

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to find her statements not entirely credible. However, the ALJ did
not discount Plaintiff’s testimony regarding the severity of her
condition, and found her more limited than either consulting
physician

assessed.

Because

the

ALJ

determined

Plaintiff’s

testimony was not credible only where it was not consistent with
Plaintiff’s previous statements and the objective record, the ALJ
did

not

err

as

a

matter

of

law

in

assessing

Plaintiff’s

credibility.
For the reasons stated above, the court finds that Defendant
satisfied his burden.

As a result, the ALJ’s decision finding

Plaintiff not disabled is supported by substantial record evidence.
The court also agrees with Defendant that the ALJ applied proper
legal standards in evaluating the evidence and in making his
determination.

Therefore, the court GRANTS Defendant’s motion for

summary judgment.
IV.

Conclusion
Based on the foregoing, the court DENIES Plaintiff’s motion

for Summary Judgment and GRANTS Defendant’s Motion for Summary
Judgment.
SIGNED in Houston, Texas, this 27th day of August, 2014.

______________________________
U.S. MAGISTRATE JUDGE

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