Batiste v. Astrue

Filing 15

MEMORANDUM AND ORDER DENYING 14 MOTION for Summary Judgment and Proposed Order, GRANTING 12 Cross MOTION for Summary Judgment and AFFIRMNG the Commissioner's decision.(Signed by Judge Keith P Ellison) Parties notified.(sloewe)

IN THE UNITED STATES DISTRICT COURT F O R THE SOUTHERN DISTRICT OF TEXAS H O U S T O N DIVISION F R A N K D. BATISTE, P l a i n t i ff , v. M IC H A E L ASTRUE, D e fe n d a n t. § § § § § § § § §

C IV IL ACTION NO. H-08-3003

M E M O R A N D U M OPINION AND ORDER P e n d in g before the Court in this appeal from a denial of Social Security disability b e n e fits and supplemental security income are Plaintiff's motion for summary judgment (D o ck et Entry No. 14) and Defendant's cross motion for summary judgment (Docket Entry N o . 12). The Court, having considered the motions, all relevant filings, and the applicable la w , GRANTS Defendant's cross motion for summary judgment (Docket Entry No. 12), D E N I E S Plaintiff's motion for summary judgment (Docket Entry No. 14), and AFFIRMS th e Commissioner's decision. I. A. CASE BACKGROUND

P r o c e d u r a l Background

Plaintiff filed this action pursuant to 42 U.S.C. § 405(g) for judicial review of an u n f a v o ra b le decision by the Commissioner of the Social Security Administration (the " C o m m is s io n e r" ) regarding his claims for disability insurance benefits ("DIB") and

s u p p le m e n ta l security income ("SSI") under Title II and Title XVI, respectively, of the Social S ec u rity Act ("the Act"). P la in tif f filed an application for DBI and SSI on December 5, 2001, alleging that he w a s disabled in a motor vehicle accident on April 13, 2000. Tr. 39-40. At a hearing held S e p te m b e r 13, 2006, the administrative law judge ("ALJ") heard testimony from Plaintiff, a medical expert ("ME"), and a vocational expert ("VE"). Tr. 294-335. On October 3, 2006, th e ALJ issued a partially favorable decision denying Plaintiff SSI prior to December 1, 2 0 0 5 , but granting such benefits thereafter. Tr. 433-455. Following Plaintiff's appeal of the d e c is io n , the Appeals Counsel remanded the case to the Commissioner for further c o n s id e ra tio n . Plaintiff filed an application for SSI on October 11, 2006, which was consolidated w ith the instant application. Tr. 109. A second, de novo hearing was held April 29, 2007, at which Plaintiff and a VE testified. Tr. 631-682. The ALJ issued his decision denying DIB a n d SSI on September 25, 2007. The Appeals Council denied Plaintiff's request for review. T r. 7-10. Accordingly, the ALJ's 2007 decision became the Commissioner's final decision f o r purposes of this Court's review. B. F a c tu a l Background

A t the hearing held August 29, 2007, Plaintiff testified that he was fifty-five years of a g e and lived alone. Tr. 635-36. He was a high-school graduate with two years of college a n d two years of trade school. His last employment was a city maintenance worker for

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e ig h tee n months.

Tr. 640.

On April 13, 2000, Plaintiff was a passenger in a city

m ainten an c e truck that was struck by another vehicle. Tr. 641, 643. He received worker's c o m p e n s a tio n and open medical following the accident, but the worker's compensation te rm in a te d in 2001. Tr. 642. Because his disability limitations period expired December 31, 1 9 9 9 , he could only seek SSI at the time of the hearing. Tr. 646-47. Plaintiff testified that his back, legs, and arms were injured in the accident. Tr. 647. A s of the 2007 hearing, he was still experiencing muscle spasms down his arms, legs, and b a c k , with intense stabbing pain. Tr. 648. Some mornings he was unable to walk

im m e d ia te ly after getting out of bed. He always needed to sit down and rest after walking. T r. 648. He denied having any mental conditions, but did state that he had been on a n tid e p re ss a n ts for two years, and saw a pain management therapist. Tr. 649. He stated that h e could sit for fifteen minutes, stand for twenty minutes, and lift three pounds. Tr. 650. He w a s unable to drive because of the leg spasms, and used public transportation. Tr. 651. He spent his days sitting, standing, resting, and trying to cope with the pain. Tr. 653. T h e pain left him unable to concentrate, watch television, or read. Tr. 654. He had no f rie n d s, and ate meals at a neighboring deli and fast food restaurants. Tr. 655. He testified th a t he was unable to work because he could barely walk or move, could not lift over three p o u n d s , could not concentrate, and was in "an extremely, extremely (sic) amount of pain." Id . He stated he had neurological damage from a "cracked spine" with "bulging and d e s ic c a te d discs that is compounded by degenerative arthritis of the cervical and lumbar."

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Id . The ALJ, however, read aloud from Plaintiff's medical records dated February 24, 2006, w h e re in Plaintiff's physician examined his cervical, thoracic, and lumbar-sacral spines and re p o rte d finding mild degenerative disc disease and hypertrophic degenerative bony changes a n d well preserved disc spaces. The physician had found no acute fractures, dislocations, h e rn iatio n s or other significant back problems, and his final impression was "mild s p o n d ylo s is ." Tr. 672. The VE testified that Plaintiff had worked as a city maintenance worker, which is a s k ille d occupation at the medium extertional level; as a van driver, which is a semi-skilled o c c u p atio n at the medium exertional level; and as a loader, which is an unskilled occupation a t the heavy exertional level. Tr. 674-75. Plaintiff testified that he had also worked as a s e c u rity guard for two years in the 1990s. Tr. 675. The VE stated that security guard jobs a re semi-skilled occupations at the light exertional level. Tr. 676. The ALJ asked the VE w h e t h e r the following hypothetical individual would be able to do any of Plaintiff's past w o rk : A younger individual, an individual closely approaching advanced age, and he is just an individual at advanced age of 55. He has 14 years of education. He h a s the exertional ability to occasionally lift [20] pounds and [10] pounds f r e q u e n tly. Sit/stand/walk ability six of eight. Push, pull and gross fine is u n lim ited . Now there is some minimal use of an assistive device to deal with b a la n c e and ambulation. There is no stairs, ladders, ropes, or scaffolds or ru n n in g . Occasional bend, stoop, crouch, crawl, and limited twisting or b a la n c in g . There is no heights, heavy machinery, or uneven surfaces. Can get alon g with others, understand detailed instructions, concentrate and perform d e ta ile d tasks, and respond or adapt to workplace change in supervision.

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T r. 677. The VE responded that the person would be able to perform Plaintiff's past work a s a security guard or a gate guard. The VE further stated that, as to transferrable skills, P la in tif f 's prior work as a driver would allow work in other semi-skilled driving positions re q u irin g a commercial license, such as commercial or private chauffeur or rental car tra n sp o rte r. Tr. 678. For commercial chauffeur, there were 400 jobs regionally and 50,000 n a tio n a lly; for private chauffeurs, there were 100 jobs regionally and 20,000 nationally; for re n ta l car drivers, there were 200 jobs regionally and 25,000 nationally. Id. At the end of the hearing, Plaintiff stated that the only reason he pursued the second h e a rin g after remand was because he believed he had been awarded, but was not receiving, D IB . Tr. 682. The ALJ issued his unfavorable decision on September 25, 2007. C. T h e ALJ's Evaluation and Findings

The ALJ made the following findings on September 25, 2007, with attendant e v a lu a tio n s of the medical evidence: (1 ) P la in tif f met the insured status requirements of the Act only through December

3 1 , 1999. Because he was allegedly disabled as of April 13, 2000, he is not entitled to Title II benefits (DIB). Tr. 23. (2 ) P la in tif f has not engaged in substantial gainful activity since April 13, 2000,

th e alleged onset date. Id.

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(3 )

P la in tif f has the following severe impairments: degenerative disc disease,

s o m a ta f o rm disorder, 1 major depressive disorder, and alcohol abuse. Id. (4 ) P la in tif f does not have an impairment or combination of impairments that

m e e ts or medically equals a Listed impairment. Id. T h e ALJ determined that Plaintiff's mental impairments, singly or in combination, did n o t meet or medically equal the criteria for a Listed impairment under 20 C.F.R. Part 404, S u b p a rt P, Appendix 1, §§ 12.04, 12.07, or 12.09. Plaintiff demonstrated only mild

re stric tio n s of activities of daily living and mild difficulties maintaining social functioning, a n d moderate difficulties maintaining concentration, persistence, or pace. Tr. 24. T he ALJ relied on assessments provided by the consultative medical examiner ("CE"). T h e CE diagnosed Plaintiff with a pain disorder associated with psychological factors and a general medical condition. There were no marked limitations or repeated episodes of d e c o m p e n s a tio n . (5) P lain tiff has a [residual functional capacity] ("RFC") to lift and carry twenty

p o u n d s occasionally and ten pounds frequently; stand, walk, and sit six hours in an eight hour d a y; unlimited abilities to push or pull; and unlimited gross and fine dexterity. He requires m in im a l use of a cane to assist with balance and ambulation, but is unable to run or climb.

A somataform disorder is defined as one which manifests physical symptoms for which ther e are no demonstrable organic findings and for which there is a strong presumption that the symptoms are linked to psychological factors. See Stedman' s Medical Dictionary, p. 510 (26th ed. 1995).
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H e can occasionally stoop, bend, crouch, and crawl, and can do limited twisting and b a la n c in g . He cannot be exposed to unprotected heights, heavy machinery, or uneven s u rf a ce s. He can get along with others, understand detailed instructions, concentrate on and p e rf o rm detailed tasks, and respond and adapt to workplace and supervision changes. Id. The ALJ noted that Plaintiff's reasons for not working were due to his injuries from th e 2000 motor vehicle accident. Plaintiff testified to straining his neck and having an e x tre m e amount of pain from spine, leg, and arm spasms. He took antidepressant

m ed icatio n s and saw a pain management specialist, but had no recent hospitalizations. Tr. 2 5 -2 6 . Plaintiff testified that he could sit for 15 minutes, stand for 20 minutes, walk for only f iv e minutes, and lift three pounds. During the day, Plaintiff took his medications and rested. H e traveled to Louisiana by bus in 2006 with a friend, and flew from Oakland, California to H o u s to n with no reported difficulty. Tr. 26. The ALJ found that Plaintiff's medically determinable impairments could reasonably b e expected to produce the alleged symptoms, but that his statements concerning their in te n s ity, persistence, and limiting effects were not entirely credible. Id. The ALJ noted that th e objective clinical findings did not support Plaintiff's alleged subjective symptoms or f u n c tio n a l limitations. Plaintiff was without neurological deficit and had no serious

o rth o p e d ic abnormalities or significant dysfunctions of bodily organs that would preclude a lig h t level of exertion.

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T h e medical records showed that, after the accident in 2000, Plaintiff was diagnosed w i t h cervical spine strain and back muscle spasms. Id. X-rays taken one month after the a c cid e n t revealed no significant abnormalities. An MRI of Plaintiff's spine showed

e x tre m e ly minimal cervical bulging, no spinal stenosis, a small osteophyte (bony) formation, an d minimal thoracolumbar scoliosis. X-rays taken during an emergency room visit a short tim e later showed straightening of the natural cervical spine curvature, with discogenic c e rv ic a l and lumbar changes. The disc spaces, however, were without abnormality. An MRI p e rf o rm e d a year later revealed normal lumbar discs with small osteophytes, except for one d esicc ated (non-spongy) lumbar disc. A bulge was again noted, but all other findings were n o r m a l. Plaintiff's chiropractor reported good subjective improvement, with some

te n d e rn e ss and mild range of motion restriction of the cervical spine. Tr. 27. I n February of 2002, approximately two years after the accident, a neurologist d ia g n o se d Plaintiff with cervical, thoracic, and lumbar strain, contributing to thoracic outlet s yn d ro m e and headaches. The neurologist's examination was normal, and Plaintiff had no m o to r, sensory, or reflex loss. Id. In April of 2002, Dr. Michael Han found Plaintiff to have m u s c le tenderness on his back with a decreased range of motion. He had full range of m o tio n in his upper extremities, limited only by difficulty raising his arms above his head. Id . He had full muscle strength at 5/5, with intact reflexes and sensation. He had mildly d e c re a se d motor strength in his lower left extremities. The physician concluded that Plaintiff h a d mechanical lower back pain, and that he could use a cane for walking long distances, lift

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3 5 pounds occasionally and 20 pounds frequently. He had no limitations on his ability to w a lk , except for use of the cane as needed, and no limitations on the use of his hands. He w a s unrestricted as to bending, stooping, kneeling, crouching, crawling, and squatting. Id. In August of 2004, Plaintiff was diagnosed with multi-level degenerative disc disease. P h ys ic a l therapy and lumbar epidural injections were recommended. The CE physician examined Plaintiff in October of 2005, and noted some back te n d e rn e ss . Although Plaintiff used a cane, no abnormality of gait was observed. He had c e rv ica l and lumbar decreased range of motion, but exhibited normal motor strength in all e x tre m itie s. His sensory examination was normal. X-rays revealed only slight narrowing of tw o disc spaces and no bony abnormalities. The CE physician diagnosed back pain, muscle s p a sm s , and hypertension, with no evidence of motor, sensory, or reflex deficits. Tr. 28. A second CE physician examined Plaintiff in December of 2005, and reported lower b a c k muscle spasms with a limited range of motion and a positive straight leg raising test. H e noted that Plaintiff had mild muscle weakness throughout the upper and lower e x tre m itie s , with decreased sensation. Id. Cervical x-rays revealed generalized osteoarthritis a n d degenerative disc disease. Progress notes from the Veterans Administration ("VA") H o s p ita l dated February 16, 2006, reported that Plaintiff favored his left leg and used a cane. H e had symmetrical reflexes with no muscle atrophy and no sensory or motor deficit. The ALJ found that, although Plaintiff had degenerative disc disease, there was no c o n sis te n t evidence of motor, sensory, or reflex loss. He noted that Plaintiff's most recent

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h o s p ita l records showed normal motor strength with no sensory or reflex loss.

He

e m p h a s iz e d that Plaintiff had not required back surgery. The ALJ stated that, because P lain tiff received a monetary settlement from the accident and received a $932.00 per month m ilita ry pension, he lacked an incentive to return to work for reasons apart from medical f a cto rs . The ALJ further noted that Plaintiff's professed need for inactivity during the day w a s unsupported by objective clinical findings indicating that he had an impairment capable o f causing the degree of functional limitations alleged. Id. The ALJ opined that Plaintiff's in a c tiv ity might have been a matter of choice, lifestyle, or lack of motivation rather than the re s u lt of a medically determinable impairment. The ALJ determined that Plaintiff's mental impairments had not caused a substantial loss in his ability to respond appropriately to supervision, coworkers, and usual work s itu a tio n s , as required by Social Security Ruling 85-15. Plaintiff's mental status examination o f April 20, 2002, indicated that his mood was dysphoric and apprehensive, without h a llu c in a tio n s or thought disturbances. Id. His recall was somewhat impaired, but recent m e m o r y was intact and his intelligence was normal. He was diagnosed with a pain disorder a s s o c ia te d with psychological factors, and alcohol dependence. Tr. 29. A state agency medical consultant reported on May 21, 2002, that Plaintiff could lift a n d carry 35 pounds frequently, stand and walk six hours in an eight hour workday, and sit f o r six hours in an eight hour workday. He noted that Plaintiff used a cane for stability. A s e c o n d state agency medical consultant reported on June 12, 2002, that Plaintiff could lift and

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c a rry fifty pounds occasionally and twenty-five pounds frequently, and stand, walk, and sit f o r six hours in an eight hour workday. Another state agency medical consultant agreed with th o s e conclusions on August 29, 2002. Id. On May 10, 2002, and June 19, 2002, Dr. Newkirk, a neurologist, completed a p h ys ic ia n progress report and stated that Plaintiff was to remain off work on a permanent b a sis . In August 2003, Dr. Jamasbi, a state worker's compensation physician, reported that P la in tif f could lift only five pounds and needed a cane to ambulate; he recommended v o c a tio n a l rehabilitation. In August and September of 2004, Dr. Jamasbi reported that P la in tif f had a "permanent disability" for worker's compensation purposes. Id. T h e ALJ acknowledged that Dr. Hebert, one of the CE physicians, had reported P la in tif f as having neurological deficits with significant disc disease in his cervical and lu m b a r spines. Dr. Hebert had further reported that Plaintiff could lift and carry only five to te n pounds, was unable to climb or crawl, and could stand for less than one to two hours a d a y and sit for only five hours a day. Id. The ALJ expressly gave the opinions of Dr. N e w k irk , Dr. Jamasbi, and Dr. Hebert little weight because they were unsupported by o b je c tiv e clinical findings and were inconsistent with the evidence considered as a whole. T r. 30. The ALJ specifically noted that, on February 11, 2002, Dr. Newkirk's own

n e u r o lo g ic a l examination of Plaintiff was "normal," with no motor, sensory, or reflex loss. A n April 27, 2002, examination noted muscle strength of 5/5, with intact reflexes and s e n sa tio n , and only mildly decreased motor strength in the left-side extremities. Plaintiff was

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s ta te d as able to lift 35 pounds occasionally and 20 pounds frequently. He had no limitations o n walking, except for use of a cane as needed, or on the use of his hands. He could do u n re s tric te d bending, stooping, kneeling, crouching, crawling, and squatting. Id. The ALJ noted that Plaintiff's recent physical examinations revealed no neurological d e f icits and no abnormality of gait. While Plaintiff had decreased range of motion in his ce rvica l and lumbar spines, his motor strength was normal in all extremities with no motor, s e n s o ry, or reflex loss. Id. Hospital notes from February and June of 2006 showed no motor o r sensory deficits, and symmetrical reflexes. The ALJ concluded that the lack of support f o r the opinions of Dr. Newkirk, Dr. Jamasbi, and Dr. Hebert entitled them to little weight. T h e ALJ concluded that Plaintiff's pain and discomfort were mild to moderate at m o s t. Plaintiff's allegations concerning his subjective symptoms were credible to the extent th a t he was unable to perform medium to heavy work, but not credible to the extent that they p re c lu d e d him from all work activities. Id. (6) P la in tif f was able to perform his past relevant work as a security guard. Id.

T h e ALJ referenced the VE's testimony that, given his functional limitations, Plaintiff c o u ld perform his past relevant work as a security guard. Plaintiff thus had the RFC to p e rf o rm his past relevant work as a security guard and was not disabled. (7) P l a in tif f was 48 years old at the alleged date of onset, and turned 55 on

S e p te m b e r 11, 2006, such that he was an "advanced age individual" at the time of the h e a rin g . Tr. 31.

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(8 ) (9 ) (10 )

P la in tif f had a high school education and communicated in English. Id. P la in tif f had transferrable job skills. Id. C o n sid e rin g Plaintiff's age, education, work experience, and RFC, there were

jo b s that existed in significant numbers in the national economy that he could perform. Id. (1 1 ) P la in tif f was not under a disability from April 13, 2000, through the date of the

A L J 's decision. Tr. 32. T h e ALJ determined that Plaintiff was not disabled and denied him benefits. Tr. 33. II. STANDARD OF REVIEW AND APPLICABLE LAW

A motion for summary judgment under Federal Rules of Civil Procedure Rule 56 re q u ire s the Court to determine whether the moving party is entitled to summary judgment a s a matter of law based on the evidence thus far presented. FED. R. CIV. P. 56(c). Summary ju d g m e n t is proper "if the pleadings, depositions, answers to interrogatories, and admissions o n file, together with the affidavits, if any, show that there is no genuine issue as to any m a te ria l fact and that the moving party is entitled to judgment as a matter of law." Kee v. C ity of Rowlett, 247 F.3d 206, 210 (5th Cir. 2001). A genuine issue of material fact exists if a reasonable fact finder could enter a verdict for the non-moving party. Crawford v. F o r m o s a Plastics Corp., 234 F.3d 899, 902 (5th Cir. 2000). The Court views the evidence in the light most favorable to the non-moving party and draws all reasonable inferences in th a t party's favor. Id.

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Ju d icia l review of a final decision by the Commissioner denying disability benefits is limited to the determination of whether substantial evidence in the record supports the d e c is io n and whether the ALJ applied proper legal standards in evaluating the evidence. W a t e rs v. Barnhart, 276 F.3d 716, 718 (5th Cir. 2002); Brown v. Apfel, 192 F.3d 492, 496 ( 5 th Cir. 1999). If the Commissioner's decision satisfies both of these requirements, it must b e affirmed. Carey v. Apfel, 230 F.3d 131, 135 (5th Cir. 2000). A. " S u b s ta n t ia l Evidence"

T h e widely-accepted definition of substantial evidence is "that quantum of relevant e v id e n c e that a reasonable mind might accept as adequate to support a conclusion." Id. It is "something more than a scintilla but less than a preponderance." Id. The Commissioner h a s the responsibility of deciding any conflict in the evidence. Id. If the findings of fact c o n ta in e d in the Commissioner's decision are supported by substantial evidence appearing in the record, they are conclusive, and this Court must affirm. 42 U.S.C. § 405(g). O n ly if no credible evidentiary choices of medical findings exist to support the C o m m is s io n e r' s decision should the Court overturn it. See Johnson v. Bowen, 864 F.2d 340, 3 4 3 -4 4 (5th Cir. 1988). In applying this standard, the Court is to review the entire record, b u t may not re-weigh the evidence, try the issues de novo, or substitute its judgment for that o f the Commissioner. See Brown, 192 F.3d at 496. In other words, the Court is to defer to th e Commissioner's decision as much as possible without making its review meaningless.

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B.

L e g a l Standard

In order to obtain disability benefits, a claimant bears the ultimate burden of proving th a t he is disabled within the meaning of the Act. Wren v. Sullivan, 925 F.2d 123, 125 (5th C ir. 1991). Under the applicable legal standard, a claimant is disabled if he is unable to " e n g ag e in any substantial gainful activity by reason of any medically determinable physical o r mental impairment . . . which has lasted or can be expected to last for a continuous period o f not less than twelve months." 42 U.S.C. § 423(d)(1)(a); see also Greenspan v. Shalala, 3 8 F.3d 232, 236 (5th Cir. 1994). The existence of such a disabling impairment must be d e m o n s tra te d by "medically acceptable clinical and laboratory diagnostic" findings. 42 U .S .C . § 423 (d)(3). A claimant is eligible for benefits only if the onset of the qualifying m e d ic a l impairment began on or before the date the claimant was last insured. Ivy v. S u lliv a n , 898 F.2d 1045, 1948 (5th Cir. 1990). To determine whether a claimant is capable of performing any substantial gainful a c tiv ity, the regulations provide that disability claims should be evaluated according to the f o l lo w in g sequential five-step process: (1 ) a claimant who is working, engaging in a substantial gainful activity, will not b e found to be disabled no matter what the medical findings are; a claimant will not be found to be disabled unless he has a "severe im p a ir m e n t" ; a claimant whose impairment meets or is equivalent to an impairment listed in th e Listings will be considered disabled without the need to consider v o c a tio n a l factors;

(2)

(3 )

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(4)

a claimant who is capable of performing work that he has done in the past must b e found "not disabled"; and if the claimant is unable to perform his previous work as a result of his im p a irm e n t, then factors such as his age, education, past work experience, and re sid u a l functional capacity must be considered to determine whether he can d o other work.

(5 )

B o w lin g v. Shalala, 36 F.3d 431, 435 (5th Cir. 1994). By judicial practice, the claimant bears th e burden of proof on the first four of the above steps, while the Commissioner bears the b u rd e n of proof on the fifth step. Crowley v. Apfel, 197 F.3d 194, 198 (5th Cir. 1999); B ro w n , 192 F.3d at 498. The Commissioner can satisfy his burden either by reliance on the M e d ic a l-V o c a tio n a l Guidelines of the Regulations or by expert vocational testimony or other s im ila r evidence. Fraga v. Bowen, 810 F.2d 1296, 1304 (5th Cir. 1987). If the

C o m m is s io n e r satisfies his burden of proof as to the fifth step, then the burden shifts back to the claimant to prove he cannot perform the work suggested. Muse v. Sullivan, 925 F.2d 7 8 5 , 789 (5th Cir. 1991). The analysis stops at any point in the process upon a finding that th e claimant is disabled or not disabled. Greenspan, 38 F.3d at 236. III. ANALYSIS

P lain tiff raises the following issues in his motion for summary judgment: (1 ) T h e ALJ improperly determined that his degenerative disc disease did not meet th e requirements of a Listed impairment. T h e ALJ failed to consider properly all of the evidence in the record. T h e ALJ improperly determined Plaintiff's mental RFC. T h e ALJ improperly determined Plaintiff's physical RFC.
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(2 ) (3 ) (4 )

(5 )

T h e ALJ erred in finding that Plaintiff could perform his past relevant work or o th e r work existing in the national economy.

In his cross motion for summary judgment, Defendant contends that the ALJ's d e c is io n should be affirmed because it applied proper legal standards and is supported by s u b s ta n tia l evidence. A. L is te d Impairment

In his findings, the ALJ determined that Plaintiff's "severe" impairments included d eg en era tiv e disc disease. Tr. 23. Plaintiff complains that the ALJ rejected Plaintiff's a rg u m e n t that this impairment did not meet Listing 1.04C pertaining to disorders of the spine. P la in tif f states that Listing 1.04C requires the following: L um b ar spinal stenosis resulting in pseudoclaudication, established by findings o n appropriate medically acceptable imaging, manifested by chronic nonra d ic u la r pain and weakness, and resulting in inability to ambulate effectively, a s defined in 1.000B2b. 2 0 C.F.R. Pt. 404, Subpt. P, App. 1 § 1.04C. This, however, is not a complete statement of th e relevant criteria. Listing 1.04, in full, provides as follows: D is o rd e rs of the spine (e.g., herniated nucleus pulposus, spinal arachnoiditis, s p in a l stenosis, osteoarthritis, degenerative disc disease, facet arthritis, v e rte b ra l fracture), resulting in compromise of a nerve root or the spinal cord. W ith : * C. * * *

L u m b a r spinal stenosis resulting in pseudoclaudication, established by f in d in g s on appropriate medically acceptable imaging, manifested by c h ro n ic non-radicular pain and weakness, and resulting in inability to a m b u l a te effectively, as defined in 1.00B2b.

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" I n e f f e c t iv e ambulation" is further defined as: a n extreme limitation of the ability to walk; i.e., an impairment(s) that in te rf e re s very seriously with the individual's ability to independently initiate, s u s ta in , or complete activities. Ineffective ambulation is defined generally as h a v in g insufficient lower extremity functioning (see 1.00J) to permit in d e p e n d en t ambulation without the use of a hand-held assistive device(s) that lim its the functioning of both upper extremities. Id., § 1.01(b)(1). T h u s , to meet this Listing, Plaintiff must prove, with acceptable medical evidence and la b o ra to ry findings, degenerative disc disease, a compromised nerve root or spinal cord, lu m b a r stenosis with pseudoclaudication, chronic non-radicular pain and weakness, and in e f f e c tiv e ambulation. Listings criteria are "demanding and stringent," and the mere diagnosis of a condition w ill not suffice. Falco v. Shalala, 27 F.3d 160, 162 (5th Cir. 1994). Under Sections 4 0 4 .1 5 2 5 (d ) and 416.925(d), the claimant must have a medically determinable impairment th a t satisfies all of the criteria in the listing. Sullivan v. Zebley, 493 U.S. 521, 530 (1990) (" A n impairment that manifests only some of those criteria, no matter how severely, does not q u a lif y." ). The burden of proof rests with a claimant to provide and identify medical signs a n d laboratory findings that support all criteria for a step three listing determination. Id. If a claimant fails to provide and identify medical signs and laboratory findings that support all c r i te r ia of a Listing, the court must conclude that substantial evidence supports the ALJ's f in d in g that the required impairments for any Listing are not present. Selders v. Sullivan, 914 F .2 d 614, 620 (5th Cir. 1990).
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A s stated by the ALJ in the instant case, Plaintiff was diagnosed with degenerative d is c disease. However, Plaintiff establishes none of the other Listing criteria. Although P la in tif f directs this Court to numerous instances in the medical records establishing P lain tiff 's problems with, and complaints about, his back (Docket Entry No. 14, pp. 5-6), n o n e of his medical records indicates a compromise of the nerve root or spinal cord. Indeed, n o w h e re in his motion for summary judgment does Plaintiff acknowledge the requirement f o r "compromise of a nerve root or the spinal cord." Plaintiff fails to meet his burden of proving that he met all of the criteria for a Listing 1 .0 4 C impairment. Accordingly, this Court concludes that the ALJ's findings at step three a re supported by substantial evidence. No error is shown. B. F a ilu r e to Consider All of the Evidence

P lain tiff complains that the ALJ failed to consider the record evidence pertaining to h is gout, alleged alcohol use, VA disability rating, and medication side effects. Plaintiff complains that the ALJ failed to consider his VA disability rating, as the ALJ m e n tio n e d only the monthly disability income Plaintiff received. Plaintiff's argument is re f u te d by the ALJ's decision, wherein the ALJ discussed and weighed the VA's decision: T h e undersigned [ALJ] has considered the Veterans Administration decision a n d finds the disability standards are not consistent with the Social Security d is a b ility laws and regulations. Therefore, the undersigned is not bound by s u c h a decision and finds it is not persuasive or conclusive for determining S o c ia l Security disability. It is given little weight.

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T r. 28. Plaintiff does not argue or show that the ALJ applied an improper legal standard or th a t he otherwise erred in reaching this determination. Nor does Plaintiff establish error regarding evidence of Plaintiff's medication side e f f e c ts. The ALJ must take into account the effects of medication on a claimant's ability to p e rf o rm work tasks. Loza v. Apfel, 219 F.3d 378, 396-97 (5th Cir. 2000). However, in the in s ta n t case, Plaintiff fails to direct this Court to any evidence in the record of any actual side ef fe cts experienced by Plaintiff regarding his medications. In his motion for summary ju d g m e n t , Plaintiff has done nothing more than cite to lists of his prescribed medications. T h e ALJ cannot have "failed to consider Plaintiff's reported side effect[s]" if Plaintiff did n o t report or present evidence of any such side effects. (Docket Entry No. 14, p. 10.) No e rro r is shown. P lain tiff further asserts that the ALJ incorrectly listed "alcohol abuse" as a severe im p a irm e n t. Tr. 23. Although a psychiatrist who examined Plaintiff in April 2002 included " a lc o h o l dependence" within his diagnoses, no mention is made of any subjective or o b jectiv e factual or medical basis for such diagnosis. Tr. 302-304. Even assuming, however, th a t the ALJ erroneously listed "alcohol abuse" as a severe impairment, the error does not r e q u ir e reversal and remand of the ALJ's decision. The ALJ made no finding that alcoholism w a s a "contributing factor" to any disability, and Plaintiff posits no argument as to how he w a s harmed by this particular finding in his disability determination.

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As recognized by the Fifth Circuit Court of Appeals, "Procedural perfection in a d m in is tra tiv e proceedings is not required. This court will not vacate a judgment unless the s u b s ta n tia l rights of a party have been affected." Mays v. Bowen, 837 F.2d 1362, 1364 (5th C ir. 1988). Where the resulting disability determination remains unchanged, even if some o f the reasoning underlying that decision is erroneous, no substantial rights have been a f f e c te d . Id. "The procedural improprieties alleged by [Plaintiff] will therefore constitute a basis for remand only if such improprieties would cast into doubt the existence of s u b s ta n tia l evidence to support the ALJ's decision." Morris v. Bowen, 864 F.2d 333, 335 (5 th Cir. 1988). Plaintiff here fails to show that the ALJ's disability determination would h a v e been different had the ALJ not noted alcohol abuse as a severe impairment. Indeed, the a lc o h o l abuse is mentioned only within the ALJ's review of Plaintiff's medical history. A re v iew of his decision shows that the ALJ did not rely on the alleged abused alcohol in d e te rm in in g Plaintiff's credibility or disability. Because Plaintiff does not show that the A L J's decision would have been different without the purported error, and any such error did n o t affect Plaintiff's substantial rights, any error was harmless and does not entitle Plaintiff to a new hearing. Mays, 837 F.2d at 1364. Plaintiff also complains that the ALJ failed to consider his gout-related problems. P la in tif f refers this Court to two instances in his medical records where "gout" or " h yp e ru ric e m ia " (excess uric acid in the blood) are mentioned. (Docket Entry No. 14, p. 8.) A t page 508 of the transcript, a progress note references Plaintiff's hyperuricemia and his use

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o f allopurinol and colchicine for gout. In the same records set, a note is made that Plaintiff c a lled in a telephone medication refill request, and that "Patient states he is feeling pain in h is legs. Extermiies (sic) are swollen: both legs, feet, and ankle. Patient is speculative about the pain: gout, neuropathic pain, DJD . . . not able to state if this is gout pain or not[.]" Tr. 5 1 3 (ellipsis in original). Plaintiff asserts that the ALJ "ignored this evidence" in considering h is disability determination. Plaintiff further asserts that, "because [his] gout waxes and w a n e s in disabling symptoms," the ALJ legally erred in not making a specific finding reg ard ing his ability to maintain employment under Frank v. Barnhart, 326 F.3d 618 (5th C ir. 2003) and Perez v. Barnhart, 415 F.3d 457, 465 (5th Cir. 2005). No error requiring reversal and remand is shown. The references to gout-medications o n his list of active medications and the notation of his telephone call requesting a m e d ic a tio n refill for pain of an unknown source do not present substantial evidence of a m e d ic a lly-d e te rm in a b le impairment of gout. This Court's review of the medical records re v e als that, at Plaintiff's recent VA physical examination on June 13, 2007, his physician re p o rte d : "gout ­ no current flares, well-controlled, continue daily allopurinol." Tr. 574. F u r th e r, Plaintiff presented no evidence at the 2007 hearing, and the records do not show, the d a te that these symptoms first presented or that his alleged gout condition was an impairment th a t "waxes and wanes" in severity. See Perez v. Barnhart, 415 F.3d 457, 465 (5th Cir. 2 0 0 5 ). No error is shown.

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C.

" M e n ta l RFC"

P l a in t if f asserts that the ALJ incorrectly determined his "mental RFC" at step four. B y "mental RFC," Plaintiff is apparently referring to the ALJ's step four consideration of P la in tif f 's residual functional capacity to do physical and mental work activities on a su stain ed basis despite limitations from his impairments. 20 C.F.R. §§ 404.1520(e);

4 1 6 .9 2 0 (e ). An RFC is defined as "the most you can still do despite your limitations." Id., § 404.1545(a)(1). In making a determination of RFC, the ALJ must consider all of a c la im a n t's impairments, including impairments that are not severe. Id., § 404.1520(e). In determining the effect of Plaintiff's mental impairments pertaining to his RFC, the A L J found that, "[Plaintiff] is able to get along with others, understand detailed instructions, c o n c en tra te on and perform detailed tasks, and respond and adapt to changes in the w o rk p la c e and supervision." Tr. 24. The ALJ evaluated Plaintiff's mental impairments as f o l lo w s : [ P la in ti f f ' s] mental impairments have not caused a substantial loss in his ab ility to respond appropriately to supervision, coworkers, and usual work s itu a tio n s (Social Security Ruling 85-15). On April 20, 2002, George Maloof, M .D ., examined [Plaintiff]. Dr. Maloof's mental status examination shows th a t [Plaintiff's] mood was dysphoric and apprehensive. [Plaintiff] had no h a llu c in a tio n s or thought disturbances. Although his recall was somewhat im p a ire d , his recent memory was intact. [Plaintiff's] intelligence was normal. B a se d on his examination of [Plaintiff], Dr. Maloof diagnosed him with a pain d is o r d e r associated with psychological factors. . . . Dr. Maloof assigned [ P la in tif f ] a Global Assessment Functioning ["GAF"] score of 60.

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T r. 28-29. In evaluating Plaintiff's impairments at step two, the ALJ stated that, "A GAF of 6 0 indicates only moderate symptoms (e.g. flat affect and circumstantial speech, occasional p a n ic attacks) or moderate difficulty in social, occupational, or school functioning (e.g. few f rie n d s , conflicts with peers or co-workers) (DSM IV)." Tr. 24. The record further shows th a t, on May 1, 2002, a state agency psychiatry consultant evaluated Plaintiff and found him " m e n ta lly capable of sustained simple work with limited public, coworker and supervisor in te ra c tio n ." Tr. 321. In support of his step four argument, Plaintiff refers the Court to the ALJ's step two a ss e ss m e n t of his level of mental impairments. However, step two assessments and

lim ita tio n or level determinations are not equivalent to, or interchangeable with, RFC a s s e s s m e n ts under step four. See Social Security Ruling 96-8p. To the contrary, the ALJ s p e c if ic a lly stated in his decision that, because of the different assessments required by steps tw o and four, he would be restating the step two criteria findings into work-related functions re g a rd in g his step four RFC assessment. Tr. 24. Accordingly, this Court declines to rely on t h e ALJ's statements and findings made within his step two assessment. Consequently, P lain tiff does not show that the ALJ either applied improper legal standards in assessing his R F C to perform mental work activities, or that his RFC findings are not supported by s u b s ta n tia l evidence. No error is shown.

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D.

" P h y s ic a l RFC"

Similarly, Plaintiff argues that the ALJ incorrectly determined his "physical RFC" at s te p four. By "physical RFC," Plaintiff is apparently referring to the ALJ's step four c o n sid e ra tio n of Plaintiff's residual functional capacity to do physical and mental work a c tiv itie s on a sustained basis despite limitations from his impairments. 20 C.F.R. §§ 4 0 4 .1 5 2 0 (e ); 416.920(e). As before, an RFC is defined as "the most you can still do despite yo u r limitations." Id., § 404.1545(a)(1). In making a determination of RFC, the ALJ must c o n s id e r all of a claimant's impairments, including impairments that are not severe. Id., § 4 0 4 .1 5 2 0 ( e ) . In the instant case, the ALJ determined at step four that Plaintiff could lift and carry 2 0 pounds occasionally and 10 pounds frequently, stand and walk six hours in an eight hour w o rk d a y and sit for at least six hours in an eight hour workday; that he had unlimited abilities to push or pull, with unlimited gross and fine dexterity; that he was unable to run or climb; th a t he could occasionally bend, stoop, crouch, and crawl, with limited twisting and b a la n c in g ; and that he could not be exposed to unprotected heights, heavy machinery, or u n e v e n surfaces. Tr. 24. P la in tif f complains that, in making this determination of Plaintiff's RFC, the ALJ im p rop erly rejected the contrary opinions of three treating and consultative physicians, Dr. N e w k irk , Dr. Hebert, and Dr. Jamasbi. Under 20 C.F.R. § 404.1527(d)(2), a treating p h ys ic ia n 's opinion on the nature and severity of a patient's impairment will be given

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co n tro lling weight if it is well supported by medically acceptable clinical and laboratory d ia g n o stic techniques and is not inconsistent with other substantial evidence. In affording th e opinions of these three physicians little weight, the ALJ stated as follows: T h e opinions of Dr. Newkirk, Dr. Jamasbi, and Dr. Hebert are given little w eig h t because they are unsupported by objective clinical findings and are in c o n sis te n t with the evidence considered as a whole. Specifically, on F e b ru a ry 11, 2002, Dr. Newkirk's own neurological examination was normal. [ P la in tif f ] had no motor, sensory, or reflex loss. Moreover, on April 27, 2002, D r. Han's physical examination showed that [Plaintiff's] muscle strength was 5 /5 . His reflexes and sensation were intact. [Plaintiff] had only mildly d e c re a se d motor strength in his lower extremities on the left. Dr. Han reported t h a t [Plaintiff] could use a cane for walking long distances or on uneven s u rf a ce s. Dr. Han further reported that [Plaintiff] could lift 35 pounds o c c a sio n a lly and 20 pounds frequently. [Plaintiff] had no limitations on his a b ility to walk except for the use of a cane. [Plaintiff] had no limitation on the u s e of his hands. He could do restricted bending, stooping, kneeling, c ro u c h in g , crawling, and squatting. Likewise, [Plaintiff's] recent physical examinations do not show the presence o f neurological deficits. On October 29, 2005, Dr. Torrance's physical e x a m in a tio n showed that although [Plaintiff] used a cane, he had no a b n o rm a lity of his gait. While [Plaintiff] had a decreased range of motion of h i s cervical and lumbar spine, his motor strength was normal in all extremities. L ik e w ise , his sensory examination was normal. Dr. Torrence specifically re p o rte d that [Plaintiff] had no evidence of motor, sensory, or reflex loss. Progress notes from the [VA] Hospital dated February 24, 2006, show that [P la in tiff ] had no motor or sensory deficit. Additionally, his reflexes were sym m e trica l. On June 26, 2006, [Plaintiff] had no motor or sensory deficit. M o re o v e r, his reflexes were symmetrical. Thus, the lack of support for the o p in io n s of Dr. Newkirk, Dr. Jam[asbi] and Dr. Hebert entitles them to little w e ig h t. Tr. 30 (record citations omitted).

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F u r th e r, Dr. Jamasbi was of the opinion that, in September 2004, Plaintiff had a " p e rm a n e n t disability" under state disability laws. Tr. 377, 385, 390. Dr. Newkirk opined th a t Plaintiff should remain off work on a permanent basis. Tr. 348-49. A determination by a treating physician that an applicant is "disabled" or "unable to work" is not a medical o p in io n entitled to deference, but rather a legal conclusion "reserved to the Commissioner." F r a n k v. Barnhart, 326 F.3d 618, 620 (5th Cir. 2003). An ALJ need not justify his decision to give little weight to a physician's opinion that a patient is disabled or unable to work, b e c a u s e such decisions are reserved for the Commissioner. Id.; Miller v. Barnhart, 211 F. A p p 'x 303 (5th Cir. 2006) (unpublished). At the 2007 hearing, Plaintiff testified that he did nothing all day except "try to cope w ith the pain," and sit "a little bit" then "stand up a little bit," and "lie down when the pain g e t[ s] too extreme." Tr. 653. Despite those professed debilitations, Plaintiff flew from C a lifo rn ia to Houston, and took a bus from Houston to Louisiana in July 2006 for family m a tte rs . Tr. 651-52. Plaintiff's recent physical examination through the VA in June of 2007 sh o w ed that he had full strength in all extremities ("5/5 x 4") without focal weakness. Tr. 5 7 4 . His recent MRI of September 19, 2007, revealed cervical spondylosis 2 with mild spinal

Cervical spondylosis is a " degener ative joint disease affecting the cervical vertebrae, inter ver tebr al disks, and surrounding ligaments and connective tissue, sometimes with pain or par esthesia radiating down the arms as a result of pressure on the nerve roots." Dorland' s Illustrated Medical Dictionary, p. 1564 (28th ed. 1994).
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2

c a n al stenosis, without disc herniation. Tr. 589. The medical records do not show that any c o rr e c tiv e or remedial surgical procedures have been recommended or undertaken. The ALJ properly weighed the competing medical opinions and appropriately d is c o u n te d any legal conclusions appearing in the medical records. See Walker v. Barnhart, 1 5 8 F. App'x 534 (5th Cir. 2005) (unpublished). Although Plaintiff disagrees with the ALJ's re so lu tio n of the conflicting medical evidence, this Court declines to substitute its judgment o r review for that of the ALJ. See Newton v. Apfel, 209 F.3d 448, 452 (5th Cir. 2000). The A L J's determination of Plaintiff's RFC to perform the physical activities of work is s u p p o rte d by substantial evidence, and no legal error is shown. E. P a s t Relevant Work

P la in tif f argues that the ALJ improperly found that he could perform his past relevant w o rk or perform other work existing in the national economy. In raising this issue, Plaintiff e x p re ss ly relies on his prior arguments regarding the ALJ's failure to consider all of the e v id e n c e and his improper determinations of Plaintiff's RFC. Because the Court has rejected th e s e other arguments, they provide Plaintiff no support in this instance. Plaintiff further complains that the ALJ failed to determine whether Plaintiff could h o ld a job for a significant period of time. This argument also provides him no relief. D is a b ility determinations turn on whether applicants can perform substantial gainful activity, w h ic h contemplates a capacity for employment on a regular and continuing basis. Frank v. B a r n h a r t, 326 F.3d 618, 621 (5th Cir. 2003). The Commissioner's regulations require

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a d m in is tra tiv e adjudicators to determine RFC for work activity "on a regular and continuing b a sis ." 20 C.F.R. § 404.1545(b). Social Security Ruling 96-8p defines "work on a regular a n d continuing basis" as "8 hours a day, for 5 days a week, or an equivalent work schedule." In absence of an express finding, reviewing courts generally assume that assessments o f RFC by administrative law judges include implicit findings of ability to work on a regular a n d continuing basis. Frank, 326 F.3d at 619. Only when medical or other evidence shows th a t symptoms caused by a severe impairment "wax and wane" is a separate, explicit finding re q u ire d . However, as noted earlier, the evidence in this case establishes no impairment of a "waxing and waning" nature, and the specific finding of an ability to work on a regular and c o n tin u in g basis was not required. Perez v. Barnhart, 415 F.3d 457, 465 (5th Cir. 2005). No e rro r is shown. F. D efe n d a n t's Arguments

D e f e n d a n t asserts in his motion for summary judgment that the ALJ's decision should b e affirmed because the ALJ properly determined Plaintiff was never under a disability. (D o ck et Entry No. 12.) This Court must review the record to determine only whether the ALJ's decision is s u p p o rte d by more than a scintilla, but less than a preponderance, of evidence, and that p ro p e r legal standards were applied. See Carey v. Apfel, 230 F.3d 131, 135 (5th Cir. 2000). The Court finds more than a scintilla of evidence in support of the ALJ's decision. T h e re f o re , the Court cannot overturn the decision of the ALJ, who is given the task of

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w e ig h in g the evidence and deciding disputes. See Chambliss v. Massanari, 269 F.3d 520, 5 2 2 (5th Cir. 2001); Carrier v. Sullivan, 944 F.2d 243, 247 (5th Cir. 1991). Further, the ALJ a p p lie d proper legal standards in determining Plaintiff's disability. For the reasons stated above, the Court finds that Defendant has satisfied his burden. A c c o rd in g ly, the ALJ's decision finding Plaintiff not disabled is supported by substantial e v id e n c e in the record. The Court also agrees with Defendant that the ALJ applied proper le g a l standards in evaluating the evidence and in making his determination. Therefore, the C o u rt GRANTS Defendant's cross motion for summary judgment (Docket Entry No. 12) and A F F I R M S the Commissioner's decision. IV. CONCLUSION

B a se d on the foregoing, the Court GRANTS Defendant's cross motion for summary ju d g m e n t (Docket Entry No. 12), DENIES Plaintiff's motion for summary judgment (Docket E n try No. 14), and AFFIRMS the Commissioner's decision. The Clerk will provide copies to the parties. S ig n e d at Houston, Texas, on this the 31st day of March, 2010.

K E IT H P. ELLISON U N IT E D STATES DISTRICT JUDGE

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