Huron v. Astrue

Filing 14

MEMORANDUM AND ORDER grantimg 11 Cross MOTION for Summary Judgment; denying 10 MOTION for Summary Judgment (Signed by Magistrate Judge Frances H Stacy) Parties notified.(bwhite, )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

GEORGE HURON JR.,
Plaintiff,
V.
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,1
Defendant.

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CIVIL ACTION NO. H-12-541

MEMORANDUM AND ORDER DENYING PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT AND GRANTING
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

Before the Magistrate Judge2 in this social security appeal is Plaintiff’s Motion for Summary
Judgment (Document No. 10), Defendant’s Motion for Summary Judgment (Document No.11) and
Defendant’s Response to Plaintiff’s Motion for Summary Judgment (Document No. 13). After
considering the cross motions for summary judgment, the administrative record, and the applicable
law, the Magistrate Judge ORDERS, for the reasons set forth below, that Defendant’s Motion for
Summary Judgment (Document No. 11) is GRANTED, Plaintiff’s Motion for Summary Judgment

1

Carolyn W. Colvin became the Acting Commissioner of the Social Security
Administration on February 14, 2013. Pursuant to Rule 25(d) of the Federal Rules of Civil
Procedure, she is substituted for Michael J. Astrue as the defendant in this action.
2

The parties consented to proceed before the undersigned Magistrate Judge on August 6,
2012. (Document No. 8).

(Document No. 10) is DENIED, and the decision of the Commissioner is AFFIRMED.
I. Introduction
Plaintiff, George Huron, Jr., (“Huron”) brings this action pursuant to the Social Security Act
(“Act”), 42 U.S.C. 405(g), seeking judicial review of a final decision of the Commissioner of Social
Security Administration (“Commissioner”) denying his application for disability benefits. Huron
argues that substantial evidence does not support the Administrative Law Judge’s (“ALJ”) decision,
and the ALJ, Gary J. Suttles, committed errors of law when he found that Huron was not disabled.
Huron argues that he has been disabled since January 1, 2003, due to post traumatic stress disorder
(“PTSD”), back problems and back pain. According to Huron, the ALJ failed to consider all the
evidence concerning his impairments and as a consequence his decision is not supported by
substantial evidence. He further argues that the hypothetical question the ALJ posed to the
Vocational Expert failed to include all of Huron’s limitations, namely his non-exertional limitations
related to PTSD. Huron seeks an order reversing the ALJ’s decision and awarding benefits, or in
the alternative, remanding his claim for further consideration. In addition, Huron requests that should
the matter be remanded that it be assigned to a different ALJ. The Commissioner responds that there
is substantial evidence in the record to support the ALJ’s decision that Huron was not disabled, that
the decision comports with applicable law, and that the decision should, therefore, be affirmed.
II. Administrative Proceedings
On October 17, 2009, Huron filed for disability insurance benefits claiming he has been
disabled since January 1, 2003. (Tr. 134-137). The Social Security Administration denied his
application at the initial and reconsideration stages. (Tr. 98-110). Huron then requested a hearing
before an ALJ. (Tr. 111-113). The Social Security Administration granted his request, and the ALJ
2

held a hearing on July 16, 2010. (Tr. 41-97). On August 20, 2010, the ALJ issued his decision
finding Huron not disabled. (Tr. 24-40). In his decision, the ALJ found that Huron was not disabled
at any time from January 1, 2003, through the date Huron was last insured, which the ALJ deemed
was December 31, 2008.
Huron sought review by the Appeals Council of the ALJ’s adverse decision. The Appeals
Council will grant a request to review an ALJ’s decision if any of the following circumstances are
present: (1) it appears that the ALJ abused his discretion; (2) the ALJ made an error of law in
reaching his conclusion; (3) substantial evidence does not support the ALJ’s actions, findings, or
conclusions; (4) a broad policy issue may affect the public interest; or (5) there is new and material
evidence and the decision is contrary to the weight of all the record evidence. The Appeals Council,
on December 15, 2011, concluded that there was no basis upon which to grant Huron’s request for
review citing in part that Huron failed to provide additional comments or evidence. (Tr. 7-14).
Because Huron had provided additional medical records (Tr. 623-637), and had corresponded with
the Appeals Council about the medical records, the Appeals Council vacated its Action. Thereafter,
the Appeals Council amended the ALJ’s decision to reflect that Huron was last insured through
September 30, 2010, and in all other respects affirmed the ALJ’s decision. (Tr.10-12). Huron has
timely filed his appeal of the ALJ’s decision. The Commissioner has filed a Motion for Summary
Judgment (Document No. 11). Likewise, Plaintiff has filed a Motion for Summary Judgment
(Document No. 10), to which Defendant has filed a Response. (Document No. 13). This appeal is
now ripe for ruling.
The evidence is set forth in the transcript, pages 1 through 637. (Document No. 3). There
is no dispute as to the facts contained therein.
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III. Standard for Review of Agency Decision
The court, in its review of a denial of disability benefits, is only “to [determine] (1) whether
substantial evidence supports the Commissioner’s decision, and (2) whether the Commissioner’s
decision comports with relevant legal standards.” Jones v. Apfel, 174 F.3d 692, 693 (5th Cir. 1999).
Indeed, Title 42, Section 405(g) limits judicial review of the Commissioner’s decision as follows:
“[t]he findings of the Commissioner of Social Security as to any fact, if supported by substantial
evidence, shall be conclusive.” 42 U.S.C. § 405(g). The Act specifically grants the district court the
power to enter judgment, upon the pleadings, and transcript, “affirming, modifying, or reversing the
decision of the Commissioner of Social Security with or without remanding the case for a rehearing”
when not supported by substantial evidence. Id. While it is incumbent upon the court to examine
the record in its entirety to decide whether the decision is supportable, Simmons v. Harris, 602 F.2d
1233, 1236 (5th Cir. 1979), the court may not “reweigh the evidence in the record nor try the issues
de novo, nor substitute its judgment” for that of the Commissioner even if the evidence
preponderates against the Commissioner’s decision. Chaparro v. Bowen, 815 F.2d 1008, 1009 (5th
Cir. 1987); see also Jones at 693; Cook v. Heckler, 750 F.2d 391, 392 (5th Cir. 1985). Conflicts in
the evidence are for the Commissioner to resolve. Anthony v. Sullivan, 954 F.2d 289, 295 (5th Cir.
1992).
The United States Supreme Court has defined “substantial evidence,” as used in the Act, to
be “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. N.L.R.B., 305
U.S. 197, 229 (1938)). Substantial evidence is “more than a scintilla and less than a preponderance.”
Spellman v. Shalala, 1 F.3d 357, 360 (5th Cir. 1993). The evidence must create more than “a
4

suspicion of the existence of the fact to be established, but no ‘substantial evidence’ will be found
only where there is a ‘conspicuous absence of credible choices’ or ‘no contrary medical evidence.’”
Hames v. Heckler, 707 F.2d 162, 164 (5th Cir. 1983) (quoting Hemphill v. Weinberger, 483 F.2d
1127 (5th Cir. 1973)).
IV. Burden of Proof
An individual claiming entitlement to disability insurance benefits under the Act has the
burden of proving his disability. Johnson v. Bowen, 864 F.2d 340, 344 (5th Cir. 1988). The Act
defines disability as 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 twelve months.”
42 U.S.C. § 423(d)(1)(A). The impairment must be proven through medically accepted clinical and
laboratory diagnostic techniques. 42 U.S.C. § 423(d)(3). The impairment must be so severe as to
limit the claimant in the following manner:
he is not only unable to do his previous work but cannot, considering his age,
education, and work experience, engage in any other kind of substantial gainful work
which exists in the national economy, regardless of whether such work exists in the
immediate area in which he lives, or whether a specific job vacancy exists for him,
or whether he would be hired if he applied for work.
42 U.S.C. § 423(d)(2)(A). The mere presence of an impairment is not enough to establish that one
is suffering from a disability. Rather, a claimant is disabled only if he is “incapable of engaging in
any substantial gainful activity.” Anthony v. Sullivan, 954 F.2d 289, 293 (5th Cir. 1992) (quoting
Milan v. Bowen, 782 F.2d 1284 (5th Cir. 1986)).
The Commissioner applies a five-step sequential process to determine disability status:
1. If the claimant is presently working, a finding of “not disabled” must be made;
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2. If the claimant does not have a “severe” impairment or combination of
impairments, she will not be found disabled;
3. If the claimant has an impairment that meets or equals an impairment listed in
Appendix 1 of the Regulations, disability is presumed and benefits are awarded;
4. If the claimant is capable of performing past relevant work, a finding of “not
disabled” must be made; and
5. If the claimant’s impairment prevents her from doing any other substantial
gainful activity, taking into consideration her age, education, past work experience,
and residual functional capacity, she will be found disabled.
Anthony, 954 F.2d at 293; see also Leggett v. Chater, 67 F.3d 558, 563 n.2 (5th Cir. 1995); Wren
v. Sullivan, 925 F.2d 123, 125 (5th Cir. 1991). Under this formula, the claimant bears the burden
of proof on the first four steps of the analysis to establish that a disability exists. If successful, the
burden shifts to the Commissioner, at step five, to show that the claimant can perform other work.
McQueen v. Apfel, 168 F.3d 152, 154 (5th Cir. 1999). Once the Commissioner demonstrates that
other jobs are available, the burden shifts, again, to the claimant to rebut this finding. Selders v.
Sullivan, 914 F.2d 614, 618 (5th Cir. 1990). If, at any step in the process, the Commissioner
determines that the claimant is or is not disabled, the evaluation ends. Leggett, 67 F.3d at 563.
In the instant action, the ALJ determined, in his August 20, 2010, decision, that Huron was
not disabled because he had the RFC to perform light work subject to certain restrictions. In
particular, the ALJ determined that Huron had not engaged in substantial gainful activity since
January 1, 2003 (step one); that Huron’s back disorder (discogenic and degenerative), depression and
PTSD were severe impairments (step two); that Huron did not have an impairment or combination
of impairments that met or medically equaled one of the listed impairments in Appendix 1 of the
regulations (step three); based on the medical records, and the testimony of Huron, Huron had the

6

RFC to perform light work subject to certain restrictions. In particular, Huron could “occasionally
[lift] 20 pounds and frequently [lift] 10 pounds. He can sit, stand, and walk six of eight hours each
for a full eight hour day. His push/pull and gross/fine dexterity is unlimited. He can occasionally
climb stairs and ladders but no ropes, scaffolds or running. He can bend, stoop, crouch, crawl,
balance, twist and squat. He gets along with others, understands detailed instructions, concentrates
and performs detailed tasks and responds and adapts to workplace changes and supervision.” (Tr.
32). The ALJ found that Huron could not perform his past relevant work (step four). The ALJ further
found that based on Huron’s RFC, his age, education and work skills acquired from his past relevant
work, and the testimony of a vocational expert, that Huron could perform work as a construction
labor supervisor, a construction labor expediter, and a hardware sales clerk and was not disabled
within the meaning of the Act (step five). As a result, the Court must determine whether substantial
evidence supports the ALJ’s step five finding.
In determining whether substantial evidence supports the ALJ’s decision, the court weighs
four factors: (1) the objective medical facts; (2) the diagnosis and expert opinions of treating,
examining and consultative physicians on subsidiary questions of fact; (3) subjective evidence as
testified to by the plaintiff and corroborated by family and neighbors; and (4) the plaintiff’s
educational background, work history, and present age. Wren, 925 F.2d at 126.
V. Discussion
The objective medical evidence shows that Huron has been treated for various impairments
including but not limited to his back, emotional problems, prostate problems, hearing loss and acne.
Huron served in the United States military in Vietnam. Some of his health records are from the
Veterans Administration, and others are from outside health providers.
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By way of background information, Huron injured his back in 1997.3 The objective medical
evidence shows that Huron has been treated for back problems and back pain as well as for
depression and PTSD. The medical records show that Huron injured his back in 1997.
With respect to Huron’s back injury, Huron testified that he injured his back in a work-related
accident in 1997. (Tr. 58). Because the injury occurred in the scope of his employment, worker’s
compensation was involved. Huron reached maximum medical improvement for purposes of
worker’s compensation in November 1998. (Tr. 213-217). Even though Huron was released to
work, he continued to have problems with his lower back and related to this, back pain. He was
evaluated on September 16, 2004, by Robert L. Brownhill, M.D., specializing in general
orthopaedics. Dr. Brownhill summarized Huron’s treatment since his initial injury on April 7, 1997,
to the date of his exam of Huron’s lower back on September 16, 2004, as follows:
Apparently while working on the 7th of April 1997, he was lifting or moving a heavy
compressor. He was working for a drywall company at the time. He twisted his back
and experienced low back pain. I have limited medical records, the first being in
December from Dr. Morrow, indicating traction and manipulation. He was referred
to Dr. Bernstein for medication. The next record is from Dr. Morrow again, 8-14-03,
manipulated cervical, thoracic and lumbar spine. October of 2003 – 15 minutes of
traction, manipulation. It is noted that the effects of the steroid injections had worn
off. The x-rays provided by the patient indicated that he had had epidural steroid
injections on 5-29-03, 6-12-03 and 6-26-03, which gave him good temporary relief.
In November of 2003, noted severe low back pain, numbness, recommended he be
referred to an orthopedic surgeon. The last note I have is from Dr. Morrow, noted
manipulation, pain in both legs, worried about his claim. At any rate, apparently he
was also seen by Dr. Rodriguez. According to his history, he was told by Dr.
3

The ALJ’s decision contains conflicting dates for when Huron injured his back, April
2007 and 1997. (Tr. 30 & 33). The correct date is 1997. To the extent that Huron relies on the
ALJ’s misstatement as a ground for reversal of the ALJ’s decision, he is not entitled to relief on
this ground because any error was harmless. See May v. Bowen, 837 F.2d 1362, 1364 (5th Cir.
1988)(procedural perfection is not required). The medical records summarized by the ALJ show
the date of injury as 1997 and this was corroborated by Huron’s testimony.
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Rodriguez that he would probably need surgery and he recommended a diskogram
be done. Dr. Rodriguez’s records are not available.
He denied any previous injuries, said he has been in good health, with no significant
problems. He does apparently have an enlarged prostate which is being treated at the
VA. Beyond that he has no other medical problems.
Physical Examination: The patient sits on the table without difficulty. Straight leg
raising in the sitting position is negative at 90 degrees. The neurologic examination
of the lower extremities reveals hypoactive Achilles reflexes bilaterally. Patellar
reflexes are present and equal. In the recumbent position he complains of pain in the
back of the leg at about 90 degrees straight leg raising on the right with definite tight
hamstring, also buttocks pain. On the left he complains of pain in the low back as
well as the left leg at about 70 degrees of straight leg raising. Likewise, with the knee
acutely flexed on the left side he complains of pain in the back.
Pelvic rocking caused him to complain of some mild back pain. There is tenderness
to palpation in the lower lumbar area, progressively increasing toward the lower end
of the lumbar spine. There is also some pain over the right sacroiliac region and right
buttock. He is able to walk on his heels and toes without difficulty, bends forward
reversing his curve well with his hands about six inches above the floor, resuming
the upright position without difficulty. The remainder of the examination is
unremarkable. An original MRI done on 3-18-98 (by Dr. Morrow, D.C) is reported
to have revealed left L4-5 and herniation to the left at L5-S1 with S1 root involved.
This information in a report dated 4-9-04 by Dr. O’Kelly, D.C. There was a rebuttal
by Dr. Morrow on 5-4-04, and reported these MRI findings. Dr. Morrow also noted
on his first visit on 3-10-98 that patient had obvious signs of nerve root irritation,
intervertebral disc syndrome on the left side, from his physical examination.
An additional MRI apparently was done on 7-26-02 and was read as a 3-4 mm broadbased posterior protrusion which mildly indented the sac at L3-4, superimposed 4-5
mm far left posterolateral herniation, enhancing annular tear which effaces the
emanating left L3 nerve root sleeve. At the L4-5 level there was a 3 to 4 mm broadbased posterior protrusion which mildly indented the sac. At L5-1 there was a 4 mm
broad-based annular tear which mildly effaces the S1 root sleeve. There is moderate
bilateral foraminal narrowing. This was read by Dr. Cain and Dr. Cain apparently
also did the epidural steroid injections, according to the additional records provided.
It is my impression this patient does have clinical evidence of persistent
radiculopathy on the left side. I think there is a significant diskogenic component to
his pain and therefore I would recommend that he have a diskogram to evaluate the
disc as the source of the pain, and then he would require the appropriate treatment
which may include surgical intervention and fusion at the affected level, which would
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be most likely L5-S1 but both 3-4 and 4-5 should be evaluated. (TR. 210-211).
Around this same time, the medical records show that Huron was referred by Dr. Morrow to Dr. Jose
E. Rodriguez for an evaluation. The evaluation took place on August 17, 2004. (Tr. 607-608). Huron
reported that since 1997 he had been experiencing low back pain radiating through his left lower
extremity. In connection with this evaluation, Dr. Rodriguez reviewed the results of x-rays taken
in 1998 and the results of a July 26, 2002, MRI. He also examined Huron. Dr. Rodriguez noted that
Huron had a normal gait and could heel and toe walk. He also noted that Huron’s range of motion
was restricted. Huron’s straight leg raise test was negative on the right and positive on the left. Dr.
Rodriguez opined that Huron had lumbar radicular syndrome with obvious S1 nerve root deficits on
the left and a herniated disc at L5-S1 with discogenic pain syndrome. As to future treatment, he
opined that Huron would “benefit from further work-up. I will advise a lumbar discogram with a
follow-up CT, L3-4, L4-5 and L5-S1. I will see him back when the aforementioned gets done.” Dr.
Rodriguez wrote a letter to Dr. Morrow indicating Huron had a surgical condition but without
additional testing could not elaborate on what type of surgery Huron required. Notwithstanding his
opinion that Huron would benefit from further work-up, because Huron was clinically stable, Dr.
Rodriguez released Huron to work.
In October 2007, Huron was examined at the VA. (Tr. 448-453). According to the exam note,
he had a full range of motion in his upper and lower extremities, his strength and resistance in his
upper and lower extremities were normal, he had a negative straight leg raise test, and no spine
tenderness. (Tr. 452). X-rays of the spine taken on October 16, 2007, showed mild degenerative
changes to sacroiliac joints bilaterally. Huron was next seen at the VA on June 10, 2008, for back
pain. The treatment note indicates that Huron expressed his desire to be treated by his private
10

chiropractor, Dr. Morrow, and not at the VA. The treatment note further reveals that Huron had a
full active range of motion of his upper and lower extremities. His strength was 5/5 in upper and
lower extremities. He had a positive straight leg raise test at 20 degrees on the left and at 40 degrees
on the right. He was diagnosed with “lower back pain with bilateral radiculpathy, chronic. (Tr. 423425). The most current radiologic imaging in the medical records is a MRI that was taken on July
6, 2008. (Tr. 226-228, 275-276). The MRI showed multilevel degenerative changes and marked facet
arthrosis in the lumbar spine from L3 to S1 but worst at the L4-5 level. The report states:
The lumbar spine alignment is normal. The bone marrow signal is unremarkable and
there is no bony lesion. The visualized paravertebral soft tissues are within normal
limits. The visualized lower lumbar spinal cord, conus, and cauda equina are
unremarkable.
There are multilevel degenerative changes in the lumbar spinal vertebrae and discs
consistent with posterior disc bulges, anterior osteophyte formation, facet joint
hypertrophy, and ligamentous hypertrophy. These changes are causing varying
degrees of lumbar spinal canal stenosis and foraminal narrowing described below.
L3/L4 level: Diffuse disc bulge and marked facet arthropathy. Mild spinal stenosis.
No foraminal stenosis.
L4/L5 level: Diffuse disc bulge and marked facet arthropathy. Moderate to severe
spinal stenosis. The right lateral recess is narrowed. The left appears patent. No
foraminal stenosis.
L5/S1 level: Diffuse disc bulge and marked facet arthropathy. No spinal stenosis.
Moderate bilateral foraminal stenosis. Remaining lumbar spine levels are
unremarkable.
On November 26, 2008, Huron underwent a consultative examination with Dr. Bruce Ehni,
a neurosurgeon. (Tr. 279-281, 406-408). Huron had a negative straight leg raising test. He had a full
range of motion in his lumbar spine. (Tr. 408). Huron reported pain relief by changing position and
by taking Aleve. Dr. Ehni reviewed the July 6, 2008, MRI results and opined that the MRI showed

11

“negligible changes. Normal for age. There are no changes that reach surgical significance, no root
compression.” (Tr. 280, 406). With respect to treatment, Dr. Ehni opined: “no surgical intervention,
will send for pain management. The effect of smoking on the disease process was discussed with
him, smoking cessation encouraged. Back surgery under this circumstance does not benefit
musculoskeletal back pain given the absence of more specific findings.” (Tr. 280, 406). Pursuant
to Dr. Enhi’s recommendation, Huron was referred for a pain consultation and physical therapy. He
underwent a pain consult evaluation on January 16, 2009. (Tr. 269-274). The evaluator noted that
Huron exhibited pain on palpation over the lumbar facet joints. Also, his range of motion was limited
due to pain. He had a negative straight leg raise test. (Id.) He had his physical therapy evaluation on
April 21, 2009. Huron had positive straight leg raising tests. The physical therapist wrote: “chronic
[low back pain.] [Patient] with poor posture flexibility and body mechanics. [Patient] with no
radicular symptoms and intact motor/sensory. [Patient’s] pain aggravated by any loading movement
such as extension.” (Tr. 262, 367-369). Huron had a follow-up with his primary care physician a
few days later, on April 23, 2009. (Tr. 363-365). According to the treatment note, Huron’s range
of motion was full in his upper and lower extremities, his strength was 5/5, he had a negative straight
leg raise test, no spine tenderness was noted, he was neurologically intact and his gait was normal.
Huron again expressed his desire for chiropractic services over that of treatment at the VA. (Id.)
At Huron’s May 7, 2009, physical therapy session he reported his pain had been reduced. The
therapist noted that Huron had increased flexibility. (Tr. 257, 361-362). He was discharged from
physical therapy the following week on May 13, 2009. (Tr. 360-361). The final physical therapy
notes shows that Huron tolerated physical therapy well and he had expressed pain reduction. (Id.).
Also included in the medical records is a letter written by another chiropractor, Dr. Thomas
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Hallisey, practicing at the East Loop Chiropractic Clinic in Houston, Texas. Dr. Hallisey identified
himself as having treated Huron on a monthly basis for the past two years but provides no specifics
about the nature of treatment or the dates of treatment. The letter is not dated. With respect to
Huron’s functional limitations, Dr. Hallisey writes: “in my professional opinion, I do not feel he will
ever improve to go back to work in a normal work force.” (Tr. 612).
In addition, related to Huron’s allegation that he is impaired due to his back, is a letter
opinion dated July 12, 2010, by William R. Francis, M.D., an examining consulting physician. (Tr.
613). According to the letter, Dr. Francis, relying on the July 2008 MRI results, reviewed Huron’s
case with him in October 2009. Clinically, Dr. Francis wrote that Huron had a restricted range of
motion in his back. Dr. Francis opined that Huron was a candidate for surgery. He recommended that
Huron undergo a decompression at L4-L5, partially L5-S1, and a lumbar fusion from L3 to the
sacrum for stabilization.” (Tr. 612). Dr. Francis further opined that in his professional opinion Huron
could not work. He wrote: “[h]e is for all intentional purposes, given the type of work he has been
doing, physically disabled at this time.” (Tr. 612).
Finally, Clark McKeever, M.D., completed a “Residual Functional Capacity Assessment”
on September 21, 2010, based on his two-year treating relationship with Huron from January 1, 2006
to January 31, 2008. (Tr. 629-632). Dr. McKeever opined that Huron suffers from lumbar disc
degeneration and spondylosis. He checked boxes identifying Huron’s symptoms that supported this
diagnosis: abnormal gait, sensory loss, reflex changes, reduced motion on extension, a positive
straight leg raising test, abnormal gait, tenderness, muscle spasm, muscle weakness and impaired
sleep. Dr. McKever characterized Huron’s prognosis as “poor-guarded.” Based on this diagnosis,
Dr. McKever opined that Huron could sit for not more than one and a half hours, stand no more than
13

two hours, sit and stand for no more than four hours, walk no more than an hour with five minute
breaks, and climb stairs, but could rarely twist, stoop, crouch, squat, or climb ladders. Dr. McKeever
responded to the ALJ’s decision in a letter dated September 10, 2010. (Tr. 627). While Dr.
McKeever expressed agreement with many parts of the ALJ’s decision, he disputed the vocational
expert’s conclusion that Huron could perform work as a construction labor supervisor, a construction
labor expediter, and as a hardware sales clerk. He opined that Huron could not perform any these
occupations. (Tr. 627).
Huron has also been diagnosed with and treated for prostate related problems at the VA. The
medical records reveal that Huron has a history of elevated PSA levels but biopsies of the prostate
were benign in 2000, 2002, 2007, and 2008. (Tr. 285, 286, 287, 288, 292, 293, 308, 309, 310, 311,
312, 313, 323, 324, 328).
In addition, the medical record reveals Huron complained of and was treated at the VA for
hearing loss. He had ear wax removed in 2007 (Tr. 300, 301). He was referred for an audiology
consult in July 2007. He was prescribed hearing aids on August 7, 2007 but failed to have the
hearing aids fitted. (Tr. 301-305).
Huron has also been treated for skin problems including acne, rashes and fungal infections.
(Tr. 290, 291, 354, 355, 356, 357). In 2009, Huron complained of coughing and passing out. He
was referred for a sleep study, CT of his head, ECG, carotid doppler, and echocardiogram. The
results of all the tests were normal. (Tr. 325-329).
Huron’s prescriptions have been filled though the VA. His list of medications as of October
8, 2009, include amlodipine (heart/blood pressure), artificial tears as needed, skin cleanser,
clotrimazole (topical cream for fungal infection between toes), cough medicine, loratadine
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(allergies), menthol (skin cream), miconazole (topical cream for fungal infection between toes),
nicotine gum, omeprazole (stomach), simvastatin (cholesterol), trazodone (sleep, if necessary), and
triamcinolone (skin). (Tr. 325, 326).
Huron has been treated intermittently for mental health issues at the VA. Most of the
treatment records are from 2003-2004, when he was drinking heavily. The mental health records
reflect alcohol problems as his primary diagnosis and PTSD as his secondary diagnosis. Huron
denied being depressed at his August 4, 2004, treatment session. He expressed being angry about his
ongoing financial problems and dealing with worker’s compensation. (Tr. 503-507, 509-511, 511512, 516-518, 520-521, 521-523, 524-525, 525-530). 531-539, 525-530, 524-525, 521-523, 516518). A nurse note dated February 6, 2007, showed that Huron’s depression pre-screen test was
positive but he refused further work up for depression. (Tr. 482).

Huron has been prescribed

medication for insomnia that he takes as needed. He has no treating relationship with any mental
health professional at the VA. Likewise, no medications for PTSD or depression have been
prescribed.
In 2009, Huron sought to increase his disability rating at the VA. He was evaluated in
connection with his request. Based on the evaluation, Huron was awarded an individual
unemployability rating of 50% due to PTSD with an effective date of May 27, 2009. The letter
advising Huron of the increase in his unemployability rating states in pertinent part that a “mental
health examiner has indicated that your post traumatic stress disorder symptoms cause employment
difficulties” and that Huron would “likely have difficulty maintaining employment due to your
symptoms of Post traumatic stress disorder.” (Tr. 617). The examiner noted Huron had some
memory and concentration difficulties and problems with interpersonal and occupational
15

functioning. He had a GAF score of 50.4
Huron testified about his health and its impact on his daily activities. Huron was sixty- three
years old at the time of the hearing on July 16, 2010. He stated that he lives with his wife and his
grandson, age 17. His grandson has lived with the couple since he was age seven. (Tr. 51-52). Huron
testified he had worked construction jobs but on an infrequent basis.
With respect to his back, Huron testified he injured his back in 1997. Huron recounted the
types of treatments he received for his back: physical therapy, going to a chiropractor and steroid
injections. (Tr. 58, 65-69).

Huron stated that surgery was discussed but not scheduled. He

expressed a desire to have back surgery. (Tr. 90, 95). Huron also testified that he has problems with
high blood pressure, hearing loss, anxiety attacks and insomnia. (Tr. 76-79). According to Huron,
“I have some problems.” (Tr. 79). Huron denied seeing a psychiatrist, psychologist or any kind of
mental health counselor. (Id.). Huron testified that he underwent a mental health evaluation at the
VA in 2009, and had seen someone approximately ten years ago. (Tr. 80).
With respect to his functional abilities, Huron estimated he could sit for a couple of hours.
stand for an hour or an hour and a half, and walk about a mile. (Tr. 81, 82). Huron testified he
avoids lifting but estimated he could probably lift twenty to thirty pounds. (Tr. 81). With respect to
daily activities, he eats breakfast, watches CNN, walks around his neighborhood, attends church,
occasionally goes to the grocery store with his wife, spends time with his grandson, eats out, and
travels outside of Houston to visit friends and family. (Tr. 85, 86, 89, 90). He denied having hobbies

4

The Global Assessment Functioning (GAF) score rates the social, occupational, and
psychological functioning and is given as a range. A score of 41-50 suggests serious symptoms
(e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR moderate difficulty in
social, occupational, or school functioning (e.g., no friends, unable to keep a job).
16

or any interests. (Tr. 86). Huron complained that the pain is driving him crazy. (Tr. 86). He expressed
a desire to have back surgery. (Tr. 90, 95).
Here, substantial evidence supports the ALJ’s finding that Huron’s disorders of the back
(discogenic and degenerative), depression, and post traumatic stress disorder were severe
impairments at step two, and that such impairments at step three, individually or in combination, did
not meet or equal a listed impairment and that he had the RFC to perform light work. The ALJ found
that Huron could occasionally lift 20 pounds and frequently lift 10 pounds. He could sit, stand, and
walk six of eight hours each for a full eight-hour day. He was unlimited in being able to push/pull
and had gross/fine dexterity. He could occasionally climb stairs and ladders. He could bend, stoop,
crouch, crawl, balance, twist and squat. He could get along with others, understand detailed
instructions, concentrate and perform detailed tasks and respond and adapt to workplace changes and
supervision. Substantial evidence supports the ALJ’s finding that Huron could perform light work
limited to the extent that he could not climb ladders, ropes or scaffolds or run. The determination
of a claimant’s RFC is the sole responsibility of the ALJ. See Ripley v. Chater, 67 F.3d 552, 557 (5th
Cir. 1995). Here, the ALJ properly interpreted the medical evidence to determine Huron’s RFC and
gave specific reasons in support of his RFC determination. Upon this record, substantial evidence
supports the ALJ’s RFC assessment.
In addition, substantial evidence supports the ALJ’s finding that Huron’s bilateral hearing
loss and an elevated prostate specific antigen (“PSA”) level and an enlarged prostate were not severe
impairments. While the records indicate that Huron had hearing loss, the records likewise show that
Huron did not keep appointments for the fitting of hearing aids, and that he appeared at the hearing
without hearing aids and responded to questions posed to him by the ALJ, and that his hearing loss
17

was not a severe impairment. Likewise, the records show that Huron had an elevated PSA level but
none of his biopsies showed cancer or that he needed further treatment relating to his prostate and
that his prostate issues were not a severe impairment. This factor weighs in favor of the ALJ’s
decision.
B. Diagnosis and Expert Opinion
The second element considered is the diagnosis and expert opinions of treating and
examining physicians on subsidiary questions of fact. Unless good cause is shown to the contrary,
“the opinion, diagnosis, and medical evidence of the treating physician, especially when the
consultation has been over a considerable amount of time, should be accorded considerable weight.”
Perez v. Schweiker, 653 F.2d 997, 1001 (5th Cir. 1981). For the ALJ to give deference to a medical
opinion, however, the opinion must be more than conclusional and must be supported by clinical and
laboratory findings. Scott v. Heckler, 770 F.2d 482, 485 (5th Cir. 1985); Oldham v. Schweiker, 660
F.2d 1078 (5th Cir. 1981). Indeed, “[a] treating physician’s opinion on the nature and severity of a
patient’s impairment will be given controlling weight if it is ‘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) (quoting Martinez v. Chater, 64 F.3d
172, 176 (5th Cir. 1995)). The opinion of a medical specialist is generally accorded more weight
than opinions of non-specialists. Id. “‘[T]he Commissioner is free to reject the opinion of any
physician when the evidence supports a contrary conclusion.’” Martinez, 64 F.3d at 176 (quoting
Bradley v. Bowen, 809 F.2d 1054, 1057 (5th Cir. 1987)). Further, regardless of the opinions and
diagnoses of medical sources, “the ALJ has sole responsibility for determining a claimant’s disability
status.” Martinez, 64 F.3d at 176.
18

The Social Security Regulations provide a framework for the consideration of medical
opinions. Under 20 C.F.R. §§ 404.1527(d)(2)-(6), 416.927(d)(2)-(6), consideration of a physician’s
opinion must be based on:
(1)

the physician’s length of treatment of the claimant,

(2)

the physician’s frequency of examination,

(3)

the nature and extent of the treatment relationship,

(4)

the support of the physician’s opinion afforded by the medical evidence of
record,

(5)

the consistency of the opinion with the record as a whole, and

(6)

the specialization of the treating physician.

Newton, 209 F.3d at 456. While opinions of treating physicians need not be accorded controlling
weight on the issue of disability, in most cases such opinions must at least be given considerable
deference. Id. Again, the Social Security Regulations provide guidance on this point. Social
Security Ruling 96-2p provides:
[A] finding that a treating source medical opinion is not well supported by medically
acceptable clinical and laboratory diagnostic techniques or is inconsistent with the
other substantial evidence in the case record means only that the opinion is not
entitled to “controlling weight,” not that the opinion should be rejected. Treating
source medical opinions are still entitled to deference and must be weighed using all
of the factors provided in 20 C.F.R. 404.1527 and 416.927. In many cases, a treating
source’s medical opinion will be entitled to the greatest weight and should be
adopted, even if it does not meet the test for controlling weight.
Social Security Ruling (SSR) 96-2p, 61 Fed. Reg.34490 (July 2, 1996). With regard to the weight
to be given “Residual Functional Capacity Assessments and Medical Source Statements,” the Rule
provides that “adjudicators must weigh medical source statements under the rules set out in 20

19

C.F.R. 404.1527 ... providing appropriate explanations for accepting or rejecting such opinion.” Id.
The Fifth Circuit adheres to the view that before a medical opinion of a treating physician
can be rejected, the ALJ must consider and weigh the six factors set forth in 20 C.F.R.
§ 404.1527(d). Newton, 209 F.2d at 456. “The ALJ’s decision must stand or fall with the reasons
set forth in the ALJ’s decision, as adopted by the Appeals Council.” Id. at 455; see also Cole v.
Barnhart, 288 F.3d 149, 151 (5th Cir. 2002) (“It is well-established that we may only affirm the
Commissioner’s decision on the grounds which he stated for doing so.”). However, perfection in
administrative proceedings is not required. See Mays v. Bowen, 837 F.2d 1362, 1364 (5th Cir. 1988).
Here, the thoroughness of the ALJ’s decision shows that he carefully considered the medical
records and testimony, and that his determination reflects those findings accurately. The ALJ
summarized the evidence and set forth specific reasons concerning the weight given to the opinions
of the medical sources.
Huron contends that the ALJ committed three errors. First, Huron argues that the ALJ failed
to consider all the evidence. According to Huron, the ALJ failed to correctly evaluate the opinion
of Dr. Brownhill. Huron argues that because the ALJ’s decision does not quote the entire report as
it pertains to Huron treatment for ten years, that the ALJ did not consider his report. The
Commissioner counters that simply because the ALJ did not discuss Huron’s ten year treatment
history as detailed in Dr. Brownhill’s report, it does not follow that the ALJ did not consider his
report. The law is clear that an ALJ is not required to reference everything in the record, and the
failure to discuss each piece of evidence does not mean that it was not considered. The ALJ is
obligated to specify the evidence considered that supports his decision and also set forth why other
evidence was rejected. Huron has not shown that the ten year treatment history was uncontroverted
20

evidence that the ALJ chose either not to rely on or significantly probative evidence that the ALJ
rejected. Here, the ALJ mentioned not only Dr. Brownhill’s report but also that of Dr. Rodriguez,
who also described Huron’s back problems since 1997.
Next, Huron argues that the ALJ misstated the medical evidence and rendered his own
medical opinion when he wrote in pertinent part: “a MRI of the claimant’s lumbar spine performed
on July 6, 2008, showed multilevel degenerative changes with marked facet arthrosis in the lumbar
spine at the L3 to S1 levels but no significant abnormalities were identified.” (Tr. 30). The
radiologist, Dr. Joseph Nguyen, wrote:
Findings: The lumbar spine alignment is normal. The bone marrow signal is
unremarkable and there is no bony lesion. The visualized paravertebral soft tissues
are within normal limits. The visualized lower lumbar spinal cord, conus, and cauda
equina are unremarkable.
There are multilevel degenerative changes in the lumbar spinal vertebrae and discs
consistent of posterior disc bulges, anterior osteophyte formation, facet joint
hypertrophy and ligamentous hypertrophy. These changes are causing varying
degrees of lumbar spinal canal stenosis and foraminal narrowing as described below.
L3/L4 Level: Diffuse disc bulge and marked facet arthropathy. Mild spinal stenosis.
No foraminal stenosis.
L4/L5 Level: Diffuse disc bulge and marked facet arthropathy. Moderate to severe
spinal stenosis. The right lateral recess is narrowed. The left appears patent. No
foraminal stenosis
L5/S1 Level: Diffuse disc bulge and marked facet arthropathy. No spinal stenosis.
Moderate bilateral foraminal stenosis.
Remaining lumbar spine levels are unremarkable.
Impression: Multilevel degenerative changes and marked facet arthrosis in the lumbar
spine from L3 to S1 but worse at L4-5 level. (Tr. 288).
Huron takes issue with the ALJ’s omission that his lumbar spine was worse at the L4-5 level, and

21

argues that the ALJ was downplaying the severity of his condition by omitting that it was worse at
L4-5. Huron has not shown that the ALJ’s finding that the MRI showed marked facet arthrosis from
L3-S1 was incorrect since L3-S1 includes L4-5.
To the extent that Huron relies on opinions of Dr. Francis, a one time examining physician,
and his treating physician, Dr. McKeever, who both opined he was disabled, an opinion by a
physician that a claimant is disabled is not binding on the ALJ. It is the province of the ALJ to make
a determination of a claimant’s disability and any opinions made by a physician, treating or nontreating, are not binding on the ALJ. See Frank v. Barnhart, 326 F.3d 618, 620 (5th Cir. 2003)
(physician opinions that an applicant is “disabled” or “unable to work” have no special significance).
As for Dr. McKeever’s opinion, even though he identified himself as Huron’s treating physician,
there were no medical records that corroborated his opinion. He checked boxes indicating the
symptoms that Huron had. Based on Huron’s symptoms, and his clinical finding that he had a
reduced range of motion in his spine, Dr. McKeever opined about Huron’s functional abilities. Given
the conclusional nature of the Assessment, and the absence of any treating records supporting his
findings, the ALJ was not required to give controlling weight to Dr. McKeever’s Assessment.
Finally, Huron argues that the ALJ failed to consider the VA determination of September
16, 2009 of unemployability of 50% due to PTSD. The law is clear that a VA disability
determination, while entitled to weight and consideration, is not binding on the ALJ. See Chambliss
v. Massanari, 269 F.3d 520, 522 (5th Cir. 2001); See also 20 C.F.R. §§ 404.1504, 416.904. Here,
the ALJ fulfilled his obligation to consider and give weight to the VA’s July unemployability rating
of 50% due to PTSD. Moreover, to the extent the VA evaluator opined that Huron’s PTSD could
cause employment difficulties, such statements are vocational opinions and as discussed above are
22

the province of the Commissioner.
With respect to the ALJ’s consideration of the opinion evidence, including the VA
determination, he wrote:
In making this finding, the undersigned has considered all symptoms and the extent
to which these symptoms can reasonably be accepted as consistent with the objective
medical evidence and other evidence, based on the requirements of 20 CFR 404.1529
and SSRs 96-4p and 96-7p. The undersigned has also considered opinion evidence
in accordance with the requirements of 20 CFR 404.1527 and SSRs 96-2p, 96-6p,
and 06-3p.
In considering the claimant’s symptoms, the undersigned must follow a two-step
process in which it must first be determined whether there is an underlying medically
determinable physical or mental impairment(s)–i.e., an impairment(s) that can be
shown by medically acceptable clinical and laboratory diagnostic techniques–that
could reasonably be expected to produce the claimant’s pain or other symptoms.
Second, once an underlying physical or mental impairment(s) that could reasonably
be expected to produce the claimant’s pain or other symptoms has been shown, the
undersigned must evaluate the intensity, persistence, and limiting effects of the
claimant’s symptoms to determine the extent to which they limit the claimant’s
functioning. For this purpose, whenever statements about the intensity, persistence,
or functionally limiting effects of pain or other symptoms are not substantiated by
objective medical evidence, the undersigned must make a finding on the credibility
of the statements based on a consideration of the entire case record.
The claimant testified that he lives with his wife and that they have been raising their
grandson, who is 17 years old, since he was age 7. He alleges disability since the year
2003 but testified that he has been doing self-employed contractor work since that
time through the year 2009. The claimant stated that he receives income of
$2,828.00, from veteran’s benefits and $948.00 from Social Security Retirement
benefits. He also stated that he received approximately $5,000.00 total in the year
2009 from his self-employed work activity.
The claimant alleges disability due to his back, which was injured in 1997 but that
he never had any surgical procedures. He indicated that he has undergone physical
therapy, chiropractor treatment, and has had about four injections since the initial
injury. The claimant also indicated that he has mental problems to include depression
and anxiety attacks. In his activities of daily living, the claimant testified that he can
sit a couple of hours, lift up to 30 pounds, walk about a mile, and stand about 1 and
½ hours. He indicated that he drives an automobile, grocery shops, attends church
23

services, spends time with his grandson, and takes trips to visit relatives.
After careful consideration of the evidence, the undersigned finds that the claimant’s
medically determinable impairments could reasonably be expected to cause the
alleged symptoms; however, the claimant’s statements concerning the intensity,
persistence and limiting effects of these symptoms are not credible to the extent they
are inconsistent with the above residual functional capacity assessment.
Despite the claimant’s allegations, there is no objective medical evidence of record
to support disability in this case. While the claimant does have some back pain, the
overall objective medical evidence of record demonstrates that he has had no
significant limitations as a result. There is no objective medical evidence of record
that the claimant has any gait disturbance or significant neurological deficits. In fact,
the claimant’s treating physician reported that the claimant was able to return to work
without restrictions on August 17, 2004 (Exhibit 9F, page 3). Even though the
claimant has some mental problems, there is not objective medical evidence of record
that such problems significantly interfere with his ability to work. There is no
objective evidence that the claimant has been hospitalized for mental problems or
that he has had any ongoing treatment from a mental health professional. (Exhibit 3F,
page 131).
The undersigned also recognizes that while the claimant has some limitations
secondary to his medical problems, he has not been compliant with treatment and has
a history of alcohol abuse and dependence, which has had a negative impact on his
medical problems (Exhibit 3F, pages 64, 66 and 110). However, the evidence
establishes that the claimant stopped and or decreased his consumption of alcohol in
May 2009 (Exhibit 3F, page 131). The undersigned further recognizes that even
though the claimant alleges being totally disabled, he has engaged in work activity
since the year 2003, demonstrating that he is able to engage in work activity at least
at the light level.
Furthermore, the claimant’s activities of daily living are also consistent with a light
level of work activity. He drives an automobile, grocery shops, spends time with his
grandson, and takes multiple trips to visit relatives and go to festivals. These
activities reveal a significantly greater physical and mental functional ability than
alleged. The claimant is receiving income from multiple sources to include $2,828.00
in veteran’s benefits and $948.00 from Social Security Retirement benefits, totaling
$3,776.00 a month, that supports a conclusion that he lacks a motivation to work.
While the claimant may have some pain, factors for consideration in evaluating an
individual’s subjective complaints of pain include whether there is documentation
of persistent significant limitations of range of motion, muscle spasm, muscular
atrophy from lack of use, significant neurological deficits, weight loss or impairment
24

of general nutrition, and non-alleviation of symptoms by medications. Hollis v.
Bowen, 837 F.2d 1378, 1384 (5th Cir. 1988); Adams v. Bowen, 833 F.2d 509, 512
(5th Cir. 1987); Hames v. Heckler, 707 F. 2d 162, 166 (5th Cir. 1983). None of the
claimant’s examinations disclosed the above findings to any significant degree.
The claimant’s main subjective symptoms or complaints, including pain, have been
addressed. All other subjective complaints have also been carefully considered but
are found to be only minor and not supported by linkage in the severity of any
medically determinable impairment reasonably expected to produce such alleged
incapacitating symptoms. See 20 C.F.R. 404.1529 and 416.929; Falco v. Shalala, 27
F.3d 160, 164 (5th Cir. 1994). Accordingly, the claimant’s subjective allegations are
not wholly credible and only partially supported by the overall medical evidence of
record.
As for the opinion evidence, the undersigned recognizes that the claimant has been
given disability ratings on some of his impairments from the Veteran’s
Administration for which he receives payments. However, the criteria for establishing
disability under the Social Security Regulations are different and require different
standards be met to establish disability, none of which have been met in this case.
Furthermore, there is little evidence of any significant, consistent, medical treatment
from 2001 through 2009, except chiropractic care. (Exhibit 3F).
Thus, the undersigned disagrees with the opinions of the Veteran’s Administrative
that any of his impairments, singly or in combination, disables him from all work
activity. The undersigned has also considered the State agency medical consultants
physical assessments and State agency psychologists mental assessments and, gives
some weight to these opinions insofar as they support my established residual
functional capacity above. However, new and material evidence has been received
at the hearing level that was not considered nor does it appear that the claimant’s
subjective allegations were adequately considered. The undersigned has also
considered the opinion of Dr. Thomas M. Hallisey, a chiropractor, who opined, in an
undated document, that he does not feel that the claimant will ever improve to go
back to work in a normal work force (Exhibit 9F, page 6). The undersigned gives
little weight to this undated, medically unsupported opinion from a non-qualified
medical source, a chiropractor, and finds it is inconsistent with the overall objective
medical evidence of record. Furthermore, the opinion of Dr. Hallisey is grossly
inconsistent on its face with the claimant’s rather extensive work and other daily
activities articulated throughout the medical record and in hearing testimony by the
claimant himself. For example, the performance of self-employed contracting work
since the time of his alleged onset date of disability, per the claimant’s own
testimony.
Considering the claimant’s history and treatment, the objective clinical findings, the
25

claimant’s statements and testimony regarding his symptoms and functional
limitations, the observations and comments of his treating sources, the assessment
of the State Agency reviewing physician(s), and all of the evidence of record
considered as a whole, it is concluded that the claimant has the residual functional
capacity as determined in the body of this decision. (Tr. 32-35).
Here, the ALJ evaluated the physician opinions under the framework under § 404.1527(d).
The undersigned Magistrate Judge finds that the ALJ’s decision is a fair summary and
characterization of the medical records. The ALJ thoroughly discussed the medical evidence and
gave specific, detailed reasons for the weight given. The Court concludes that the diagnosis and
expert opinion factor also supports the ALJ’s decision.
C. Subjective Evidence of Pain
The next element to be weighed is the subjective evidence of pain, including the claimant’s
testimony and corroboration by family and friends. Not all pain is disabling, and the fact that a
claimant cannot work without some pain or discomfort will not render him disabled. Cook, 750 F.2d
at 395. The proper standard for evaluating pain is codified in the Social Security Disability Benefits
Reform Act of 1984, 42 U.S.C. § 423. The statute provides that allegations of pain do not constitute
conclusive evidence of disability. There must be objective medical evidence showing the existence
of a physical or mental impairment which could reasonably be expected to cause pain. Statements
made by the individual or his physician as to the severity of the plaintiff’s pain must be reasonably
consistent with the objective medical evidence on the record. 42 U.S.C. § 423. “Pain constitutes
a disabling condition under the SSA only when it is ‘constant, unremitting, and wholly unresponsive
to therapeutic treatment.’” Selders, 914 F.2d at 618-19 (citing Harrell v. Bowen, 837 F.2d 471, 480
(5th Cir. 1988)). Pain may also constitute a non-exertional impairment which can limit the range
of jobs a claimant would otherwise be able to perform. See Scott v. Shalala, 30 F.3d 33, 35 (5th Cir.
26

1994). The Act requires this Court’s findings to be deferential. The evaluation of evidence
concerning subjective symptoms is a task particularly within the province of the ALJ, who has had
the opportunity to observe the claimant. Hames, 707 F.2d at 166.
Huron testified that he last worked in December 2009, and even then, he did no physical
labor. Rather, he supervised others do the type of work that he used to be able to do: sheet rock work.
(Tr. 54-56).
Huron also described the type of treatment he received for his back injury since 1997. (Tr.
65, 66, 67, 68, 69, 72). Huron denied knowing he had been released back to work. (Tr. 73-74). With
respect to his anxiety attacks and insomnia, Huron stated that he had “some problems” but was not
seeing a psychiatrist, psychologist or mental health counselor. (Tr. 79).
Huron estimated that he could lift no more than 20 or 30 pounds, could walk a mile, and
stand for an hour. (Tr. 81, 82). Huron’s daily activities include eating breakfast, and watching
television. (Tr. 85). He stated he is able to drive. (Id.). Huron denied having any hobbies or interests.
(Tr. 86). He added he sometimes goes to the grocery store with his wife. (Tr. 88). He also testified
that he goes to Church and spends time with his grandson. (Tr. 89). Huron further stated he has gone
to Kerrville and San Antonio. (Tr. 90).
Based on the reasons which follow, the ALJ rejected Huron’s testimony as not fully credible:
The undersigned also recognizes that while the claimant has some limitations
secondary to his medical problems, he has not been compliant with treatment and has
a history of alcohol abuse and dependence, which has had a negative impact on his
medical problems (Exhibit 3F, pages 64, 66 and 110). However, the evidence
establishes that the claimant stopped and or decreased his consumption of alcohol in
May 2009 (Exhibit 3F, page 131). The undersigned further recognizes that even
though the claimant alleges being totally disabled, he has engaged in work activity
since the year 2003, demonstrating that he is able to engage in work activity at least
at the light level.
27

Furthermore, the claimant’s activities of daily living are also consistent with a light
level of work activity. He drives an automobile, grocery shops, spends time with his
grandson, and takes multiple trips to visit relatives and goes to festivals. These
activities reveal a significantly greater physical and mental functional ability than
alleged. The claimant is receiving income from multiple sources to include $2,828.00
in veteran’s benefits and $948.00 from Social Security Retirement benefits, totaling
$3,776.00 a month, that supports a conclusion that he lacks a motivation to work.
While the claimant may have some pain, factors for consideration in evaluating an
individual’s subjective complaints of pain include whether there is documentation
of persistent significant limitations of range of motion, muscle spasm, muscular
atrophy from lack of use, significant neurological deficits, weight loss or impairment
of general nutrition, and non-alleviation of symptoms by medications. Hollis v.
Bowen, 837 F.2d 1378, 1384 (5th Cir. 1988); Adams v. Bowen, 833 F.2d 509, 512
(5th Cir. 1987); Hames v. Heckler, 707 F. 2d 162, 166 (5th Cir. 1983). None of the
claimant’s examinations disclosed the above findings to any significant degree.
The claimant’s main subjective symptoms or complaints, including pain, have been
addressed. All other subjective complaints have also been carefully considered but
are found to be only minor and not supported by linkage in the severity of any
medically determinable impairment reasonably expected to produce such alleged
incapacitating symptoms. See 20 C.F.R. 404.1529 and 416.929; Falco v. Shalala, 27
F.3d 160, 164 (5th Cir. 1994). Accordingly, the claimant’s subjective allegations are
not wholly credible and only partially supported by the overall medical evidence of
record. (Tr. 34).
Huron contends that the ALJ’s credibility assessment is not supported by substantial
evidence. The undersigned finds that there is nothing in the record to suggest that the ALJ made
improper credibility findings, or that he weighed the testimony improperly. The ALJ found Huron
not credible regarding his daily activities. Accordingly, this factor also supports the ALJ’s decision.

D. Education, Work History, and Age
The final element to be weighed is the claimant’s educational background, work history and
present age. A claimant will be determined to be under disability only if the claimant’s physical or
mental impairments are of such severity that he is not only unable to do his previous work, but
28

cannot, considering his age, education and work experience, engage in any other kind of substantial
gainful work which exists in the national economy. 42 U.S.C. § 423(d)(2)(A).
The record shows that the ALJ questioned Wallace Stanfill, a vocational expert (“VE”), at
the hearing.“A vocational expert is called to testify because of his familiarity with job requirements
and working conditions. ‘The value of a vocational expert is that he is familiar with the specific
requirements of a particular occupation, including working conditions and the attributes and skills
needed.’” Vaughan v. Shalala, 58 F.3d 129, 131 (5th Cir. 1995) (quoting Fields v. Bowen, 805 F.2d
1168, 1170 (5th Cir. 1986)). It is well settled that a vocational expert’s testimony, based on a
properly phrased hypothetical question, constitutes substantial evidence. Bowling v. Shalala, 36 F.3d
431, 436 (5th Cir. 1994). A hypothetical question is sufficient when it incorporates the impairments
which the ALJ has recognized to be supported by the whole record. Beyond the hypothetical
question posed by the ALJ, the ALJ must give the claimant the “opportunity to correct deficiencies
in the ALJ’s hypothetical questions (including additional disabilities not recognized by the ALJ’s
findings and disabilities recognized but omitted from the question).” Bowling, 36 F.3d at 436.
The ALJ posed the following hypothetical questions to the VE:
Q. All righty. Here, we’ve got, during the relevant period we’ve got an individual of
advanced age and also an individual of retirement age. He has ... that’d be two years
of college; an exertional ability to occasionally lift 20 pounds, 10 pounds frequently;
sit, stand, walking ability six of eight; his push/pull and gross/fine is unlimited. I’ll
say occasional stairs, but no ladders, ropes, scaffolds or running. He can bend, stoop,
crouch, crawl, balance, twist and squat. He has the ability to get along with others.
Can understand detailed instructions, concentrate and perform detailed tasks and
respond and adapt to workplace changes and supervision. Now, based on that, could
he do any of the past work?
A. The job of contractor, Judge, would physically fit into this hypothetical. However,
it does involve more complex aspects than your detailed hypothetical. So that would
preclude the past relevant work.
29

Q. Okay. Any transferable?
A. Yes, Sir.
Q. What kind are we looking at here?
A. Skillful use of hand tools, materials and methods used in construction; read,
understand and follow blueprints, schematics, similar drawings; working on objects
with great preciseness; and supervising and directing the work of others.
Q. And what kind of jobs would be available for those kinds of skills?
A. These would transfer to jobs such as a construction labor supervisor, found in the
DOT, Judge, at 860.137-010. In terms of the numbers of occurrences, Judge, if we
look at the, the five-county Houston area, there are approximately 950 of these jobs
locally, 190,000 in the national economy. Another job would be a, a construction
laborer expediter, DOT number 249.137-018, with 650 of these jobs locally, 150,000
in the national economy, or hardware sales, DOT number 279.357-050, with 1,400
jobs in the Houston region, 250,000 in the national economy.
Q. Okay. Now, what was the title on that last one?
A. Hardware sales clerk. (Tr. 93-95).
Here, the ALJ relied on a comprehensive hypothetical question to the vocational expert. A
hypothetical question is sufficient when it incorporates the impairments which the ALJ has
recognized to be supported by the whole record. Upon this record, there is an accurate and logical
bridge from the evidence to the ALJ’s conclusion that Huron was not disabled. Based on the
testimony of the vocational expert and the medical records, substantial evidence supports the ALJ’s
finding that Huron could perform work as a construction labor supervisor, a constructor labor
expediter, and as a hardware sales clerk because the above described jobs are consistent with his
RFC. The Court concludes that the ALJ’s reliance on the vocational testimony was proper, and that
the vocational expert’s testimony, along with the medical evidence, constitutes substantial evidence
to support the ALJ’s conclusion that Huron was not disabled within the meaning of the Act and
30

therefore was not entitled to benefits. Further, it is clear from the record that the proper legal
standards were used to evaluate the evidence presented. Accordingly, this factor also weighs in favor
of the ALJ’s decision.
V. Conclusion
Considering the record as a whole, the Court is of the opinion that the ALJ and the
Commissioner properly used the guidelines propounded by the Social Security Administration,
which direct a finding that Huron was not disabled within the meaning of the Act, that substantial
evidence supports the ALJ’s decision, and that the Commissioner’s decision should be affirmed.
Moreover, given that the Commissioner’s decision is affirmed, Huron’s request for a different ALJ
on remand is moot. As such, it is
ORDERED that Plaintiff’s Motion for Summary Judgment (Document No. 10), is DENIED,
Defendant’s Motion for Summary Judgment (Document No. 11) is GRANTED, and the decision of
the Commissioner of Social Security is AFFIRMED.
Signed at Houston, Texas, this 31st day of August, 2013

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