Reliford v. Astrue

Filing 16

MEMORANDUM OPINION granting 12 Cross MOTION for Summary Judgment, denying 11 MOTION for Summary Judgment and Memorandum of Points and Authorities in Support of Plaintiff's Motion for Summary Judgment (Signed by Magistrate Judge Nancy K. Johnson) Parties notified.(sbutler, )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
PATRICIA ELAINE RELIFORD,

§
§
Plaintiff,
§
§
v.
§
§
CAROLYN W. COLVIN,1
§
ACTING COMMISSIONER OF THE
§
SOCIAL SECURITY ADMINISTRATION, §
§
Defendant.
§

CIVIL ACTION NO. H-12-1850

MEMORANDUM OPINION
Pending before the court2 are Plaintiff’s Motion for Summary
Judgment

(Doc.

11)

Judgment (Doc. 12).

and

Defendant’s

Cross-Motion

for

Summary

The court has considered the motions, the

responses, the administrative record, and the applicable law.

For

the reasons set forth below, the court DENIES Plaintiff’s motion
and GRANTS Defendant’s cross-motion.
I.

Case Background

Plaintiff filed this action pursuant to 42 U.S.C. §§ 405(g)
and 1383(c)(3) for judicial review of an unfavorable decision by
the

Commissioner

of

the

Social

Security

Administration

(“Commissioner” or “Defendant”) regarding Plaintiff’s claim for

1

Michael Astrue was the Commissioner of the Social Security
Administration at the time that Plaintiff filed this case but no longer holds
that position. Carolyn W. Colvin is Acting Commissioner of the Social Security
Administration and, as such, is automatically substituted as Defendant. See Fed.
R. Civ. P. 25(d).
2
The parties consented to proceed before the undersigned magistrate
judge for all proceedings, including trial and final judgment, pursuant to 28
U.S.C. § 636(c) and Federal Rule of Civil Procedure 73. Docs. 7, 9, 10.

disability insurance benefits and supplemental security income
under Titles II and XVI of the Social Security Act (“the Act”).
A.

Medical History3
Plaintiff was born on February 9, 1959, and was forty-six

years old on the date of the alleged onset of disability.4
Plaintiff has a high school education and worked as a bookkeeper
until January 31, 2006.5
1.

Physical

Prior to 2009, Plaintiff had been diagnosed with diabetes
mellitus (“diabetes”) and hypertension and continued to receive
medical treatment for those conditions through 2009.6
In April 2009, Plaintiff saw Shelley D. Manning, M.D., (“Dr.
Manning”) for a disease management followup.7

Dr. Manning noted

3
Prior to the current application, Plaintiff had received an
unfavorable disability decision from an ALJ. See Tr. of the Admin. Proceedings
(“Tr.”) 8, 130-33. Shortly after the Appeals Council denied review of the ALJ’s
decision, Plaintiff filed the current application. See Tr. 8, 110, 147. The ALJ
noted at the hearing on the current application that Plaintiff’s administrative
onset date was March 12, 2009, the day after the ALJ issued the prior unfavorable
opinion. See Tr. 8. Plaintiff’s attorney agreed with the ALJ. See id.
The prior decision covered the period January 31, 2006, to March 11, 2009,
and cannot be reviewed under the guise of a new application. In order to qualify
for benefits, a plaintiff must establish that she became disabled prior to the
date last insured within the meaning of the statutes and regulations. Carey v.
Apfel, 230 F.3d 131, 134 (5th Cir. 2000); see also 42 U.S.C. §§ 416(i)(3),
423(c)(1); 20 C.F.R. §§ 404.130-404.132. Plaintiff, in this case, was insured
Because of these
through December 31, 2009.
See Tr. 8, 146, 168, 187.
limitations, the court confines its review of the medical record to evidence that
bears upon Plaintiff’s ability to work between March 12, 2009, and December 31,
2009.
4

See Tr. 8, 110, 114, 146, 168, 187.

5

See Tr. 10, 22, 151, 156.

6

See Tr. 236, 242-43, 259, 338.

7

See Tr. 258-60.

2

that Plaintiff was not taking any medications at the time, was
smoking one pack of cigarettes a day, and was complaining of a
cough and pain in her abdomen, left foot, and left hip.8
doctor also noted that Plaintiff walked with a cane.9

The
After

examination, Dr. Manning listed Plaintiff’s diagnoses as esophageal
reflux, hypertension, asthma, diabetes, stomach pain, foot pain,
left hip pain, tobacco use disorder, and depression.10
ordered

x-rays,

laboratory

tests,

and

The doctor

consultations

with

ophthalmology, podiatry, and psychiatry.11 Furthermore, Dr. Manning
advised Plaintiff to stop smoking and to restart her medications.12
Michael Z. Metzger, D.P.M., (“Dr. Metzger”) saw Plaintiff a
few days later regarding her foot pain.13

Plaintiff reported her

medications as Metformin for diabetes, Advair and Proventil for
asthma, Benzonatate for coughing, Flunisolide for sinus problems,
Hydrochlorothiazide
Tramadol

for

pain,

and

Lisinopril

Naproxen

for

for

high

blood

inflammation,

pressure,

Trazodone

and

Citalopram (Celexa) for depression, Famotidine for an ulcer, and
Protonix for a hiatal hernia.14 Dr. Metzger ordered the debridement
8

See Tr. 259.

9

See id.

10

See id.

11

See Tr. 260.

12

See id.

13

See Tr. 257-58.

14

See id.

3

of the nail on Plaintiff’s right big toe, prescribed an antifungal
medication, and ordered a magnetic resonance imaging (“MRI”) and xrays of Plaintiff’s left foot.15
The record contains two reports from x-rays of Plaintiff’s
left foot taken in April 2009.16

The first report is dated April

13, 2009, and showed scattered mild degenerative changes, soft
tissue swelling, an osteophyte, and a bunion.17
dislocations

were

observed.18

According

to

No fractures or
the

second

x-ray

performed on April 21, 2009, Plaintiff suffered from hypertrophic
degenerative changes and small osteophytes.19
or dislocations were observed.20

Again, no fractures

The joint spaces were preserved;

the soft tissues were unremarkable; and the bones were well
mineralized without lesions.21
A hip x-ray taken about the same time revealed degenerative
changes of both hips with moderate joint space narrowing on the
left and mild joint space narrowing on the right.22

15

See Tr. 258.

16

See Tr. 270, 273.

17

See Tr. 273.

18

See id.

19

See Tr. 270.

20

See id.

21

See id.

22

See Tr. 274.

4

No fractures

or dislocations were observed.23
Dr.

Manning

saw

Plaintiff

tenderness, among other issues.24

in

late

June

and

noted

back

Plaintiff walked with a cane and

reported that her blood sugar and blood pressure had been high.25
Dr. Manning referred Plaintiff to other health providers for
evaluation
podiatry,

concerning
and

diabetes,

psychology.26

The

rheumatology,
doctor

ophthalmology,

increased

Plaintiff’s

medication for diabetes and advised Plaintiff to stop smoking.27
Plaintiff saw Dr. Metzger in July 2009, and he shared with
Plaintiff the results of the foot MRI, which revealed a small cyst,
joint effusion with synovitis, and scattered degenerative changes
in the joints and bones.28

Plaintiff’s medications were mostly the

same except she was no longer taking Benzonatate, Naproxen, or
Trazadone and had added Bupropion (Wellbutrin) for depression and
Zolpidem (Ambien) for insomnia.29 Plaintiff reported ankle pain and
numb toes.30

Dr. Metzger noted, “dm running a little high: has

23

See id.

24

See Tr. 253-54.

25

See Tr. 253.

26

See Tr. 254.

27

See id.

28

See Tr. 230-31, 250-52.

29

See Tr. 251.

30

See Tr. 250.

5

infection now,” apparently referring to high blood sugar.31

Dr.

Metzger ordered another nail debridement and x-rays of the ankle,
the latter of which revealed no acute bony abnormalities and a
preserved mortise, although a bony fragment, possibly related to an
old trauma, and soft tissue calcifications were detected.32

Dr.

Metzger put Plaintiff on the list for the next available ankle
support.33
Alan D. Croock, M.D., (“Dr. Croock”) evaluated Plaintiff in
July 2009 on a rheumatology consult.34

Plaintiff reported that she

had experienced pain in her lower back for more than thirty years,
but the intensity had increased over the last four years.35

She

also reported pain around her left hip and both knees for many
years.36

Plaintiff reported occasionally walking for exercise, and

Dr. Croock observed her ambulation to be stable with a cane, which
Plaintiff explained had been her late husband’s.37
Dr.

Croock

examined

Plaintiff

and

noted,

among

other

observations, no joint swelling or weakness and no signs of trunk

31

See id.

32

See Tr. 227-30, 252.

33

See Tr. 252.

34

See Tr. 247-50.

35

See Tr. 247.

36

See id.

37

See 247, 248.

6

or extremity inflammation.38 Plaintiff’s muscle strength was 5/5.39
Dr. Croock listed Plaintiff’s diagnoses as chronic lower back pain,
degenerative joint disease of the back and hip, osteoarthritis of
the ankle and foot, obesity, and bilateral knee pain.40
He found Plaintiff to be clinically stable but counseled her
on exercise, weight reduction, and smoking cessation, as well as
compliance with medications, therapy, and medical appointments.41
He recommended vitamins and a healthy diet.42

In addition to

laboratory tests and a physical therapy consult, Dr. Croock ordered
x-rays of Plaintiff’s knees and spine on suspicion of degenerative
joint disease.43
The x-ray of the right knee showed “[s]ymmetric mild medial
compartment joint space narrowing,” and the x-ray of the left knee
showed “[s]ymmetric mild degenerative arthropathy.”44

The x-ray of

Plaintiff’s spine revealed “[m]ultilevel degenerative changes of
the thoracic and lumbar spine.”45

Specifically, Plaintiff was

suffering from severe degenerative disease from T10 through T12,

38

See Tr. 248, 249.

39

See Tr. 249.

40

See id.

41

See id.

42

See 250.

43

See Tr. 224-27, 250.

44

Tr. 225, 226.

45

Tr. 261.

7

“[m]ild to moderate degenerative disease of the lumbar spine
manifested by disc space narrowing and anterior osteophytosis,”
“[m]oderate facet hypertrophy of the lumbar spine, most pronounced
from L3 through S1,” “[w]edging of the T9 vertebral body, likely
physiological.”46

The spine x-ray showed no evidence of displaced

fracture.47
Plaintiff was transported via ambulance to Ben Taub General
Hospital (“Ben Taub”) in July 2009 after several days of abdominal
pain, nausea, and vomiting.48

In response to questions regarding

her past medical history, Plaintiff indicated that she had been
diagnosed with chronic obstructive pulmonary disease (“COPD”) in
2004.49

Her glucose level while at the emergency room was 335

mg/dl, but there was no indication in the notes that the episode
was related to diabetes.50

Plaintiff was treated and released with

instructions to followup at a community clinic a month later.51
In early September, Plaintiff was seen by Dr. Metzger for
treatment

of

the

cyst

46

foot.52

In

addition

to

See Tr. 233-39.

49

left

See id.

48

her

Id.

47

on

See 238.

50

See Tr. 233-39. In a disability report completed near the time of
her second application, Plaintiff indicated that the visit was due to stress and
dehydration. See 154.
51

See Tr. 234.

52

See Tr. 242.

8

Plaintiff’s medications for diabetes, asthma, sinus problems, high
blood

pressure,

insomnia.53

and

pain,

Plaintiff

was

taking

Zolpidem

for

Dr. Metzger was unable to aspirate the cyst.54

At a follow-up appointment with Plaintiff on September 9,
2009, Dr. Manning listed Plaintiff’s diagnoses as foot pain,
ganglion cyst, chronic lower back pain, osteoarthritis of the ankle
and foot, degenerative joint disease of the lumbroscral and hip
regions, depressed mood, hypertension, and asthma.55

Dr. Manning

increased Plaintiff’s dosage of Metformin, finding that diabetes
was not being controlled.56
On the same day as the appointment, Dr. Manning assessed
Plaintiff’s residual functional capacity (“RFC”).57

Dr. Manning

estimated that Plaintiff experienced both pain and fatigue in the
moderate range and noted that the pain was not completely relieved
by Plaintiff’s medications.58

In the doctor’s opinion, Plaintiff

could sit no more than two hours and stand/walk less than one hour
in an eight-hour day, could never lift/carry anything over five
pounds and could lift/carry less than five pounds occasionally.59
53

See Tr. 243.

54

See id.

55

See Tr. 338.

56

See id.

57

See Tr. 444-49.

58

See Tr. 445.

59

See Tr. 445-46.

9

Plaintiff’s symptoms, one of which was constant pain, were
likely to increase in a competitive work environment, in Dr.
Manning’s opinion, and Plaintiff was likely to experience “good
days” and “bad days.”60

Dr. Manning indicated that pain, fatigue,

or other symptoms constantly would interfere with Plaintiff’s
attention and concentration.61
Although Dr. Manning believed that Plaintiff’s impairments
would last at least twelve months, Dr. Manning did not find that
emotional factors contributed to the severity of her symptoms or
functional limitations.62

Dr. Manning indicated that Plaintiff was

capable of low work stress but would need to take two or three
fifteen-to-twenty-minute

breaks

every

day.63

Plaintiff’s

impairments, according to Dr. Manning, were likely to produce good
days and bad days.64

Dr. Manning indicated that Plaintiff needed

to avoid wetness, gases, dust, heights, fumes, humidity, and
extreme temperatures and could not bend, pull, stoop, push, or
kneel.65
Dr. Manning listed Plaintiff’s medications: Metformin, Advair,

60

See Tr. 448, 449.

61

See id.

62

See id.

63

See Tr. 448-49.

64

See Tr. 449.

65

See id.

10

Proventil,

Loratadine

Lisinopril,

Citalopram,

Protonix.66

In

late

medications

were

the

Flunisolide,

Zolpidem,

(for

allergies),

Bupropion,
October,

same
and

Hydrochlorothiazide,

Darvocet

Plaintiff

except

(for

pain),

reported

and

that

her

that

she

was

also

taking

Hydrocodone

and

had

discontinued

Darvocet.67
2.

Mental

Over the same period, Plaintiff received psychotherapy.68
Psychiatrist Stephanie Sim, M.D., (“Dr. Sim”) evaluated Plaintiff
in May 2009, noting Plaintiff’s chief complaints as depression and
anxiety over the previous year.69

Plaintiff described experiencing

poor sleep with initial insomnia, low energy and motivation, low
concentration, weight gain, isolation, irritability, low interest
in grooming, high level of worrying, restlessness, and muscle
tension.70

Plaintiff stated that she had a history of depression

over the prior ten years without hospitalizations or suicidal
ideation

and

Citalopram.71

that

she

had

responded

well

to

the

medication

Plaintiff said she smoked about a pack of cigarettes

66

See Tr. 446-47.

67

See Tr. 283.

68

See Tr. 245-47, 252-57.

69

See Tr. 256-57.

70

See Tr. 256.

71

See id.

11

each day.72
The mental status examination had normal results except for
depressed mood and blunted affect.73

Dr. Sim diagnosed Plaintiff

with major depressive disorder recurrent with anxious features and
determined her Global Assessment of Functioning (“GAF”) to be 52.74
Dr. Sim prescribed Bupropion and Zolpidem, continued Citalopram,
and referred Plaintiff for psychotherapy.75
Psychotherapist

Chrysaundra

M.

evaluated Plaintiff in June 2009.76
mood swings, and sleep changes.77

Simmons

(“Ms.

Simmons”),

Plaintiff reported depression,

Ms. Simmons noted that Plaintiff

was generally well groomed and goal oriented but manifested an
anxious affect and a dysthymic mood.78

Ms. Simmons opined that

Plaintiff suffered from a mood disorder, grief, a history of
substance abuse, and family conflict and determined her GAF to be
55.79

The treatment plan included improving coping skills for

depression and anxiety and participating in psychotherapy.80

72

See id.

73

See id.

74

See Tr. 257.

75

See id.

76

See Tr. 254-56.

77

See Tr. 255.

78

See id.

79

See id.

80

See id.

12

Plaintiff saw Ms. Simmons again in late June 2009 and reported
continuing to experience depression and anxiety.81

Ms. Simmons

found a mental status examination to be normal except for an
anxious affect and a depressed mood.82

She recommended that

Plaintiff explore shelter options, improve her self care, improve
coping

skills

for

depression,

and

continue

with

individual

psychotherapy in three weeks.83
The medical record contains notes from psychotherapy sessions
in July, August, and September 2009 with Ms. Simmons.84

The notes

do not reflect significant changes in Plaintiff’s condition.85
early

September,

Ms.

Simmons

noted

appropriate and her mood was euthymic.86

Plaintiff’s

affect

In
was

In late September, her

mood was again euthymic despite her not feeling well that day and
demonstrating blunted affect.87
Dr.

Sim

reevaluated

Plaintiff

on

September

21,

2009.88

Plaintiff reported that she was not sleeping through the night,
suffered from low energy, motivation, and concentration, and tended

81

See Tr. 252.

82

See Tr. 253.

83

See id.

84

See Tr. 245-47, 332.

85

See Tr. 242, 245-47, 332.

86

See Tr. 242.

87

See Tr. 332.

88

See Tr. 334-35.

13

to isolate herself.89

However, Plaintiff also stated that she was

showering, she had lost weight, and her irritability had improved.90
In regard to anxiety, she reported that she was worried about her
children and her finances, experienced restlessness and muscle
tension, but that the anxiety had improved and that she had not
suffered an anxiety attack.91

Dr. Sim listed Plaintiff’s diagnoses

as major depressive disorder with anxious features and assessed her
GAF to be 52.92
Plaintiff attended a consultative mental health examination in
October 2009.93

Cecilia P. Lonnecker, Ph.D., (“Dr. Lonnecker”)

performed a clinical interview and a mental status examination.94
Plaintiff provided what Dr. Lonnecker found to be a fairly reliable
personal history.95

Plaintiff indicated that she was able to

prepare meals sometimes, was able to manage money and handle
finances, and was able to shop with assistance.96

Dr. Lonnecker

concluded that Plaintiff suffered from major depressive disorder
without psychotic features, that her GAF was 60, and that her

89

See Tr. 334.

90

See id.

91

See id.

92

See Tr. 335.

93

See Tr. 282-87.

94

See id.

95

See Tr. 282.

96

See Tr. 284.

14

prognosis was fair.97
At no point during her 2009 mental health treatment did
Plaintiff demonstrate signs of suicidal or homicidal ideation.98
Plaintiff continued to see Ms. Simmons for psychotherapy into
2010.99

The

treatment

plan

in

January

2010

was

to

maintain

Plaintiff’s mood stability and to decrease symptoms of depression,
as well as to improve coping skills and to continue individual
psychotherapy.100
B.

Application to Social Security Administration
Plaintiff protectively filed for disability insurance benefits

and for supplemental security income for the second time on July
13, 2009, claiming an inability to work due to diabetes, COPD, high
blood pressure, foot pain, acid reflux, and arthritis.101
In a disability report that Plaintiff completed near the time
of her application, Plaintiff stated that she was five-feet-fourinches tall and weighed 218 pounds.102

She described the work

limitations caused by her medical conditions in this way: “I cannot
sit or stand more than 20-30 minutes at a time[; I] have a reaction

97

See Tr. 286.

98

See Tr. 242, 245, 246, 247, 253, 255, 256, 332, 335; but see Tr. 283
(self-reporting to Dr. Lonnecker passive suicidal thoughts without a plan).
99

See, e.g., Tr. 326.

100

See id.

101

See Tr. 34, 41, 110, 114, 146, 150, 151.

102

Tr. 150.

15

when under stress[;] I can’t work in extreme temperatures[;] I get
depression [sic] very easily.”103

Explaining why she stopped

working in January 2006, Plaintiff stated, “All these things were
going on[,] and then[,] with my husband being ill and taking care
of my kids, if [I] didn’t stop [I] was gonna lose it.”104

Her

medications at the time were Metformin, Advair, Flonase (for
asthma),

Hydrochlorothiazide,

Citalopram.105

Lisinopril,

Tramadol,

and

Plaintiff reported no side effects from any of the

medications.106
She stated that her daily activities included taking care of
personal hygiene with minimal assistance, taking her medications,
preparing simple meals for breakfast, lunch, and dinner, reading,
studying

scripture,

watching

television,

going

to

doctor

appointments, caring for her children with the assistance of a
friend, and/or grocery shopping and other shopping (in stores or
online) as necessary.107

According to the report, she also could

manage money, could walk, could use public transportation, could
ride in a car, could visit with family and friends by telephone,

103

Tr. 151.

104

Id.

105

Tr. 155.

106

See id.

107

See Tr. 158-62.

16

and

sometimes

could

go

out

to

eat

with

others.108

However,

Plaintiff stated that she required assistance in preparing full
meals, performing yard and house work, and completing tasks away
from the house if she had to carry items.109

She did not drive

because she did not have a license or car.110
With regard to her physical abilities, Plaintiff reported that
she could not lift more than five pounds, could not squat, kneel,
or bend, could not stand for more than twenty minutes or walk more
than a few blocks, could not sit for more than thirty minutes,
could not climb stairs, and could not reach above her head.111
Plaintiff indicated that she walked with the assistance of a
cane.112 She stated that depression made completing tasks difficult
and interfered with her concentration.113
Leela Reddy, M.D., (“Dr. Reddy”) completed a Psychiatric
Review Technique in November 2009 based on medical findings related
to depression.114

Dr. Reddy found that Plaintiff had a medically

determinable impairment of major depressive disorder that did not
“precisely satisfy the diagnostic criteria” for affective disorders
108

See Tr. 161-62.

109

See Tr. 160-61.

110

See Tr. 161.

111

See Tr. 163.

112

See Tr. 164.

113

See Tr. 163.

114

See Tr. 298-311.

17

as

described

“Listings”).116

in

the

listings

of

regulations115

the

(the

According to Dr. Reddy, Plaintiff’s medical record

reflected that she experienced: moderate restriction of activities
of daily living; mild limitations in maintaining social functioning
and

maintaining

concentration,

persistence,

or

pace;

and

no

episodes of decompensation.117 Dr. Reddy concluded that Plaintiff’s
alleged limitations from depression were not fully supported by the
medical record.118
With regard to Plaintiff’s mental RFC, Dr. Reddy determined
that Plaintiff was not significantly limited in the areas of
remembering locations and work-like procedures, understanding and
remembering very short and simple instructions, carrying out very
short and simple instructions, sustaining an ordinary routine
without

special

supervision,

working

in

coordination

with

or

proximity to others without being distracted, making simple workrelated

decisions,

asking

simple

questions

or

requesting

assistance, maintaining socially appropriate behavior and adhering
to basic standards of neatness and cleanliness, being aware of
normal hazards and taking appropriate precautions, traveling in
unfamiliar places or using public transportation, setting realistic

115

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

116

See Tr. 301.

117

See Tr. 308.

118

See Tr. 310.

18

goals or making plans independently of others.119
Dr. Reddy found Plaintiff moderately limited in the areas of
understanding and remembering detailed instructions, carrying out
detailed instructions, maintaining attention and concentration for
extended

periods,

performing

activities

within

a

schedule,

maintaining regular attendance and being punctual, completing a
normal

workday

and

workweek

without

interruptions

from

her

psychological symptoms and performing at a consistent pace without
unreasonable rest periods, interacting appropriately with the
general public, accepting instructions and responding appropriately
to criticism from supervisors, getting along with coworkers without
distracting them or exhibiting behavioral extremes, and responding
appropriately to changes in the work setting.120

Dr. Reddy noted

again that Plaintiff’s alleged limitations caused by her symptoms
were not fully supported by the medical record.121
A Physical RFC Assessment completed at about the same time
reflects that Plaintiff was capable of occasionally lifting twenty
pounds, frequently lifting ten pounds, standing or walking for
about six hours in an eight-hour workday, sitting for about six
hours in an eight-hour workday, and unlimited pushing or pulling.122

119

See Tr. 320-21.

120

See id.

121

See Tr. 322.

122

See Tr. 313.

19

James Wright, M.D., (“Dr. Wright”), who completed the assessment,
further

opined

that

Plaintiff

could

climb

a

ramp

or

stairs

frequently and a ladder, rope or scaffolds occasionally, could
balance frequently, could stoop frequently, could kneel frequently,
could crouch frequently, and could crawl occasionally.123

He cited

degenerative joint disease/osteoarthritis and obesity as the basis
for her limitations.124

No other limitations were found, and Dr.

Wright stated that Plaintiff’s alleged limitations were not fully
supported by the medical record.125
In
reported

a

second
that

disability

her

constantly severe.126
foot.127

conditions

report
had

in

early

worsened

2010,

and

her

Plaintiff
pain

was

She reported daily pain in her back and left

Plaintiff indicated that the severe pain prevented her

from caring for her personal needs.128 She also reported difficulty
sleeping.129
At that time, her daily activities included taking care of
personal hygiene, preparing breakfast and helping her children get
ready for school, cleaning house, attending basic college courses,
123

See Tr. 314.

124

See id.

125

See Tr. 315-16, 319.

126

See Tr. 171.

127

See Tr. 186.

128

See Tr. 175.

129

See Tr. 180.

20

completing her homework, keeping doctor appointments, washing
clothes, preparing dinner, and cleaning the kitchen and the floor
with the help of her children.130

In other areas, her activities

remained the same.131
Her physical abilities were stable except that she reported
improvements in how much she could lift occasionally and how long
she could walk.132

Her attention span had increased, according to

the report, but her concentration had decreased.133
Plaintiff

again

reported

no

side

effects

from

any

Although
of

her

medications in one section, she stated in another that she was
unable to take pain medications when she attended class or went to
a doctor appointment because they made her sleepy.134
Defendant denied Plaintiff’s application at the initial and
reconsideration levels.135
administrative

law

Administration.136

Plaintiff requested a hearing before an

judge
The

ALJ

(“ALJ”)

of

granted

the

Plaintiff’s

conducted a hearing on September 30, 2010.137

130

See Tr. 178, 181.

131

See Tr. 182-83.

132

Compare Tr. 163 with Tr. 184.

133

Compare Tr. 163 with Tr. 184.

134

See Tr. 174, 186.

135

See Tr. 27-30, 46-49, 52-59, 62-65.

136

See Tr. 66-68.

137

See Tr. 5-26, 69-72, 76-88, 214.

21

Social

Security

request

and

C.

Hearing
Plaintiff and Susan Rapant (“Rapant”), a vocational expert,

testified at the hearing.138

In September 2010, a matter of days

before the hearing, Plaintiff underwent surgery following a heart
attack.139

Prior to the heart attack, she had never been treated

for heart disease.140
Plaintiff testified that she quit working in January 2006
because she “had a lot of stress at home, had a sick husband, and
there was a lot of stress trying to take care of him, take care of
my children and my house.”141

Plaintiff identified Dr. Manning as

Plaintiff’s primary care physician who had been treating her since
April 2009.142

She stated that she had problems with her left

shoulder, had osteoarthritis in her left foot, left ankle, and
back, and had degenerative joint disease.143

Her shoulder pain

affected her ability to reach overhead, she said.144

She reported

that she weighed 190 pounds and suffered from diabetes.145
Approximately every two or three months, she claimed, she
138

See Tr. 5-26.

139

See Tr. 11.

140

See id.

141

Tr. 10.

142

Tr. 20.

143

Tr. 12.

144

Tr. 15.

145

Tr. 12, 14.

22

experienced an episode of dizziness, breathing difficulty, and
dehydration from which it would take her about a week to recover.146
She attributed these episodes to COPD, stress, and anxiety.147
However, she had not received emergency medical treatment for these
symptoms since July 2009.148
Plaintiff

reported

that

her

most

recent

mental

treatment had been eight months prior to the hearing.149

health
The

depression caused her to feel “stuck . . . in a rut” and unable to
focus, to prioritize, or to decide what to do next and how to do
it.150

Plaintiff estimated that she spent twenty out of thirty days

“just stuck.”151

She connected the bad days to situational stress,

most recently, family stress due to an allegation of sexual abuse
that caused her to lose custody of her children a month before the
hearing.152
During the course of a normal day, Plaintiff stated, she read,
took care of housework as she was able, and took care of the needs
of her two teenagers.153

146

See Tr. 18-19.

147

Tr. 19.

148

See Tr. 18-19.

149

Tr. 13-14.

150

Tr. 15.

151

Tr. 16.

152

Id.

153

She reported that she spent no more than

Tr. 12.

23

an hour or hour and a half on her feet and the rest of the day
seated.154

After heart surgery, Plaintiff said, she began walking

approximately two long city blocks twice a day.155
Having
testimony,

reviewed
Rapant

the

record

categorized

and

having

Plaintiff’s

bookkeeper as sedentary and skilled.156

heard
prior

Plaintiff’s
work

as

a

The ALJ asked Rapant about

vocational opportunities for a hypothetical, right-hand dominant
person approaching advanced age with a high school diploma who
could stand and walk for two hours out of an eight-hour workday,
could sit for six hours out of an eight-hour workday, could lift,
carry, push, and pull a maximum of ten pounds, should never use
ropes, ladders, or scaffolds, could occasionally engage in “other
posturals,” and could occasionally reach overhead with her left
upper extremity.157

The ALJ further limited the hypothetical

individual to detailed tasks that were not complex, eliminating
rate, pace, or assembly-line work.158

Rapant responded that the

hypothetical person could perform Plaintiff’s prior work as a
bookkeeper.159

154

Tr. 14.

155

Tr. 21.

156

Tr. 22.

157

Id.

158

Tr. 23.

159

Id.

24

The ALJ posed a second hypothetical question in which he added
a limitation of performing only simple one-, two-, and three-step
tasks, and Rapant responded that such an individual would not be
able to perform Plaintiff’s prior work.160

In a third question, the

ALJ asked Rapant to assume an individual described in the first
question with the additional limitation of missing three or more
workdays out of each month, and Rapant responded that such an
individual would not be able to perform Plaintiff’s prior work.161
D.

Commissioner’s Decision
On October 26, 2010, the ALJ issued an unfavorable decision.162

The ALJ found that Plaintiff had not engaged in substantial gainful
activity during the relevant period and that she had multiple
impairments (COPD, osteoarthritis, degenerative joint disease,
obesity, left shoulder pain, and major depressive disorder) that
were severe.163 The ALJ specifically noted that, although Plaintiff
suffered from diabetes, the disease did not “significantly limit
her ability to perform work-related activities” and, thus, was not
a severe impairment.164
Plaintiff’s severe impairments, individually or collectively,

160

Id.

161

Tr. 23-24.

162

See Tr. 31-41.

163

See Tr. 36.

164

See Tr. 37.

25

did not meet or medically equal any Listing, according to the
ALJ.165

In particular, the ALJ considered Listing 1.02 (major

dysfunction

of

a

joint),

Listing

3.02

(chronic

pulmonary

insufficiency), and Listing 12.04 (mood disorder), providing a
detailed analysis of Listing 12.04.166
In

determining

Plaintiff’s

RFC

to

perform

work-related

activities, the ALJ considered the entire record, including the xrays, MRIs, Dr. Manning’s RFC opinion, and the GAF scores.167

The

ALJ found Plaintiff capable of sedentary work with the following
limitations: lifting and/or carrying no more than ten pounds;
pushing and/or pulling no more than ten pounds; sitting for six
hours or less in an eight-hour workday; standing and/or walking for
two hours or less in an eight-hour workday; occasionally reaching
overhead with the left upper extremity; occasionally climbing ramps
and stairs, balancing, stooping, kneeling, crouching, and crawling;
never

climbing

ropes,

ladders,

or

scaffolds;

and

performing

detailed work at an unforced rate.168
Although the ALJ found that Plaintiff’s medically determinable
impairments could cause the alleged symptoms, he did not find her
“statements concerning the intensity, persistence and limiting

165

See Tr. 37-38.

166

See id.

167

See Tr. 38-41.

168

See Tr. 38.

26

effects of these symptoms” to be credible to the extent they were
inconsistent with the ALJ’s RFC determination.169
that

Plaintiff’s

testimony

was

inconsistent

The ALJ stated

with

the

medical

evidence in that “she severely minimize[d] her ability to perform
work-related activities.”170

Relying on the vocational expert’s

testimony that a hypothetical individual with Plaintiff’s RFC
limitations would be able to perform her past work as a bookkeeper,
the ALJ found Plaintiff not to be disabled.171
Plaintiff appealed the ALJ’s decision, and the Appeals Council
denied Plaintiff’s request for review, thereby transforming the
ALJ’s decision into the final decision of the Commissioner.172
Plaintiff then timely sought judicial review of the decision by
this court.
II.

Standard of Review and Applicable Law

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

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

Legal Standard

169

Tr. 39.

170

Tr. 41.

171

See id.

172

See Tr. 1-3, 105.

27

In order to obtain disability benefits, a claimant bears the
ultimate burden of proving she is disabled within the meaning of
the Act.

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

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

42 U.S.C. § 423(d)(1)(a); see

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

The

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

gainful

activity,”

the

regulations

provide

that

disability claims should be evaluated according to the following
sequential five-step process:
(1) a claimant who is working, engaging in a substantial
gainful activity, will not be found to be disabled no
matter what the medical findings are; (2) a claimant will
not be found to be disabled unless [s]he has a “severe
impairment;” (3) a claimant whose impairment meets or is
equivalent to [a Listing] will be considered disabled
without the need to consider vocational factors; (4) a
claimant who is capable of performing work that [s]he has
done in the past must be found “not disabled;” and (5) if
the claimant is unable to perform h[er] previous work as
a result of h[er] impairment, then factors such as h[er]
age, education, past work experience, and [RFC] must be
considered to determine whether [s]he can do other work.

28

Bowling v. Shalala, 36 F.3d 431, 435 (5th Cir. 1994); see also 20
C.F.R. §§ 404.1520, 416.920.

By judicial practice, the claimant

bears the burden of proof on the first four of the above steps,
while the Commissioner bears it on the fifth.
197 F.3d 194, 198 (5th Cir. 1999).

Crowley v. Apfel,

If the Commissioner satisfies

her step-five burden of proof, the burden shifts back to the
claimant to prove she cannot perform the work suggested.
Sullivan, 925 F.2d 785, 789 (5th Cir. 1991).

Muse v.

The analysis stops at

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

Greenspan, 38 F.3d at 236.

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

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

It is “something more than a

scintilla but less than a preponderance.”

Id.

The Commissioner

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

If the findings of fact contained in the Commissioner’s

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

42 U.S.C. § 405(g);

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

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

29

1988).

In applying this standard, the court is to review the

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

Commissioner’s judgment.
Cir. 1999).

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

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

Id.
III. Analysis

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

Defendant argues that the decision is

legally sound and is supported by substantial evidence.
Plaintiff

asserts

that

the

ALJ’s

decision

contains

following errors:
1[] The ALJ erred in finding [P]laintiff’s diabetes
mellitus and left foot pain not to be “severe.”
. . . .
2(a) The ALJ erred in failing to obtain an updated
medical opinion of a medical expert as to the medical
equivalency of [P]laintiff’s combined physical and mental
impairments.
2(b) The ALJ erred in failing to consult a medical expert
regarding [P]laintiff’s RFC in light of [P]laintiff’s
combined physical and mental impairments.
. . . .
3(a) The ALJ violated Social Security Ruling [(“SSR”)]
96-6p and erred in not obtaining an updated medical
expert opinion concerning the issue of medical
equivalence.
3(b) The ALJ’s failure to obtain an updated medical
30

the

expert opinion constitutes the ALJ’s failure properly to
develop the case.
. . . .
4[] The ALJ summarily rejected evidence favorable to
[P]laintiff without conducting a meaningful examination
of it or explaining why he was rejecting it.
. . . .
5[] The ALJ erred in not determining whether [P]laintiff
could maintain employment.
. . . .
6(a) The ALJ erred in failing to consider [P]laintiff’s
consistent [GAF] scores, which demonstrate the treating
and examining physicians’ opinions of [P]laintiff’s
disability.
. . . .
6(b) The ALJ erred in failing to consider the frequency
of psychological treatment.
. . . .
6(c) The ALJ erred in failing to consider the side
effects from [P]laintiff’s medications on [P]laintiff’s
ability to work as required by SSR 96-7p and SSR 96-8p.173
A.

Severity of Diabetes and Foot Pain
Plaintiff argues that the record contains multiple notations

of elevated blood sugar levels and/or elevated hemoglobin and that
the ALJ provided “little, if any articulation” of his rationale for
not finding diabetes and foot pain to be severe.174

Without a

consultative examination or a testifying medical expert at the

173

Doc. 11, Pl.’s Mot. for Summ J. pp. 4-11.

174

Id. pp. 4-5.

31

hearing, Plaintiff contends, the ALJ lacked sufficient record
development and could not determine the likely impact of these two
impairments.
Defendant responds that the evidence does not reveal any
functional limitations caused by diabetes or foot pain that affect
her ability to perform work-related activities. Defendant contends
that Plaintiff was noncompliant with her diabetes treatment and was
able

to

control

her

foot

pain

through

anti-inflammatory

medications.
Plaintiff’s suggestions that the ALJ erred by failing to
consult a medical expert at the hearing and by not fully developing
the record overlap with other errors raised by Plaintiff and are
discussed in greater detail in subsequent sections of this opinion.
At this point, the court considers whether the record contains
sufficient

evidence

to

support

the

ALJ’s

determination

that

Plaintiff’s impairments of diabetes and foot pain were not severe.
At step two of the disability analysis, the ALJ must determine
whether the alleged impairments are severe or not severe.

See 20

C.F.R. § 404.1520(a)(4)(ii), (c); 20 C.F.R. § 416.920(a)(4)(ii),
(c).

A severe impairment is one that significantly limits an

individual’s ability to do basic work activities.
404.1520(c), 404.1521(a), 416.920(c), 416.921(a).

20 C.F.R. §§
Basic work

activities are those abilities and aptitudes required for most
jobs, including, inter alia, walking, sitting, seeing, hearing, and

32

understanding and carrying out simple instructions.

20 C.F.R. §§

404.1521(b), 416.921(b).
The Fifth Circuit instructs that an impairment is not severe
if it is a “slight abnormality” that has such a “minimal effect on
the individual that it would not be expected to interfere with an
individual’s ability to work, irrespective of age, education or
Herrera v. Comm’r of Soc. Sec., 406 Fed. App’x

work experience.”

899, 902 n.1 (5th Cir. 2010)(unpublished)(quoting Loza v. Apfel, 219
F.3d 378, 391 (5th Cir. 2000)).
1.

Diabetes

The ALJ specifically acknowledged that Plaintiff had diabetes
but found that it did not significantly limit Plaintiff’s ability
to perform work-related activities.

The record supports this

conclusion. The record contains evidence of diabetes treatment but
not functional limitations resulting from the disease.
Plaintiff stopped taking all of her medications sometime in
the first quarter of 2009.

In April 2009, Dr. Manning ordered

Plaintiff to restart her medications. In June 2009, in response to
laboratory
controlled,

results
Dr.

indicating

Manning

that

the

disease

was

increased

the

dosage

of

Plaintiff’s medication for diabetes.

not

well

Metformin,

In July 2009, when Plaintiff

was treated at the Ben Taub emergency room for nausea and vomiting,
her blood sugar again was high.

Dr. Manning also increased the

Metformin dosage in September 2009.

33

From the records, it appears

that Plaintiff’s diabetes was controlled for the remainder of 2009.
Although her blood sugar registered high on several occasions,
Plaintiff

has

pointed

to

no

record

evidence

of

functional

limitations as a result. Absent evidence of significant limitation
in the ability to do work-related activities due to diabetes, the
court finds that the ALJ’s determination is supported by the
record.
2.

Foot Pain

Even though the ALJ did not make a specific finding with
regard to foot pain, he considered the medical evidence of foot
pain and the resulting limitations.

He noted that Plaintiff

claimed left foot pain and considered the results of the foot MRI
and the ankle and foot x-rays. In determining Plaintiff’s RFC, the
ALJ took into consideration limitations that may have resulted from
her foot pain.
sedentary

In particular, he found Plaintiff capable of

activity

with

additional

limitations

on

standing,

walking, lifting, carrying, pushing, pulling, climbing, balancing,
stooping, kneeling, crouching, and crawling.
The record contains multiple diagnostic images of Plaintiff’s
foot but little evidence of impairment.

The x-rays of Plaintiff’s

left foot showed degenerative changes, osteophytes, soft tissue
swelling, and a bunion, but no fractures or dislocations.
of the ankle revealed no acute abnormalities.
Plaintiff’s

podiatrist,

treated

34

Plaintiff’s

X-rays

Dr. Metzger,
conditions

by

prescribing anti-inflammatory medications and recommending an ankle
support upon availability, both rather conservative treatments. At
a later visit, Dr. Metzger attempted unsuccessfully to aspirate a
cyst, but ordered no further treatment or followup.

Physician

observations at several appointments indicated that, although
Plaintiff used a cane, she was able to ambulate without difficulty.
Irrespective of foot pain, Plaintiff was able to walk, to care
for her children, to grocery shop, to use public transportation,
and occasionally to dine out of her home.

Plaintiff reported more

than once that she walked for exercise.
The medical record contains substantial evidence supporting
the ALJ’s decision that Plaintiff’s foot pain caused no more than
a minimal effect on her ability to work and, thus, was not severe.
Moreover, even if the ALJ’s failure to make a specific severity
finding with regard to foot pain was an error, it was harmless
because he considered related limitations at subsequent steps of
the disability analysis.
B.

Medical Expert
Several of Plaintiff’s arguments touch on the ALJ’s failure to

utilize a medical expert.

Plaintiff complains that the ALJ

improperly interpreted raw medical data, that the ALJ did not
obtain updated medical expert opinions (at the hearing or before)
on severity, equivalency, and RFC and that the ALJ failed to
develop the case by not consulting a medical expert.

35

Defendant responds that the record before the ALJ contained
numerous, timely medical opinions, such that the ALJ did not rely
on his own interpretation of the medical evidence. Also, Defendant
notes that an ALJ has the discretion to determine whether a medical
expert is necessary at the hearing, and, given the amount of record
evidence, a testifying medical expert was not necessary in this
case.

Defendant further argues that the ALJ met his duty to

develop the record and that Plaintiff bears the burden of proving
disability.

Moreover,

Defendant

argues,

Plaintiff

failed

to

demonstrate that she could have adduced evidence that might have
altered the disability determination and, thus, failed to show
prejudice.
1.

Raw Data

Plaintiff

alleges

that,

in

making

his

disability

determination, the ALJ interpreted the raw medical data on his own
instead of properly relying on an expert medical opinion.

To

support this argument, Plaintiff relies on two cases for the
general principle that an ALJ, as a layperson, should not interpret
raw medical data in determining a claimant’s RFC.

See Frank v.

Barnhart, 326 F.3d 618, 622 (5th Cir. 2003); Manso-Pizzaro v. Sec’y
of Health & Human Serv., 76 F.3d 15, 17-19 (1st Cir. 1996).
In Frank, the Fifth Circuit found it inappropriate for the ALJ
to have made his own medical conclusions regarding whether certain
impairments would cause signs of atrophy or muscle tone loss.

36

Frank, 326 F.3d at 622.

The court in Manso-Pizzaro noted that

“given

of

the

illegibility

non-trivial

parts

of

the

medical

reports, coupled with identifiable diagnoses and symptoms that seem
to indicate more than mild impairment, we believe the record
alerted the ALJ to the need for expert guidance regarding the
extent of the claimant’s residual functional capacity to perform
Manso-Pizzaro, 76 F.3d at 19.

her particular past employment.”
The

court

agrees

that

an

ALJ

should

not

take

on

the

physician’s role and draw conclusions from the medical data;
however, there is no evidence that the ALJ did so in this case.
Plaintiff cites to no specific instance where the ALJ overstepped
his bounds in this regard. Furthermore, the medical record here is
clear and contains sufficient treating, examining, and consulting
medical providers’ interpretations of the raw medical data from
which the ALJ could determine Plaintiff’s RFC.
2.

Updated Opinion

Relatedly, Plaintiff further contends that the ALJ should have
consulted a medical expert for an updated opinion. The regulations
do not mandate that the ALJ ask for and consider opinions from
medical

experts.

See

20

C.F.R.

§§

404.1527(e)(2)(iii),

416.927(e)(2)(iii); Haywood v. Sullivan, 888 F.2d 1463, 1467-68 (5th
Cir. 1989). Decisions regarding whether a claimant meets or equals
a Listing and a claimant’s RFC are ultimately reserved to the
Commissioner. See 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2); Soc.

37

Sec. Ruling 96-5p, 1996 WL 374183, at **2-3, 5 (S.S.A. 1996); Soc.
Sec. Ruling 96-6p, 1996 WL 374180, at **3-4.
The signature of a medical or psychological consultant on a
disability determination form “ensures that consideration by a
physician (or psychologist) designated by the Commissioner has been
given to the question of medical equivalence at the initial and
reconsideration levels of administrative review” and “must be
received into the record as expert opinion evidence and given
appropriate weight.” Soc. Sec. Ruling 96-6p, 1996 WL 374180, at *3
(S.S.A. 1996).
Substantial evidence supports the ALJ’s finding at step three
if

the

plaintiff

fails

to

demonstrate

the

specified

medical

criteria. Cf. Selders, 914 F.2d at 619 (“The claimant must provide
medical

findings

that

support

each

of

equivalent impairment determination.”).

the

criteria

for

the

When an ALJ finds the

impairments are not equivalent in severity to any Listing, the
disability determination form satisfies the requirement to receive
expert opinion evidence into the record.
6p, 1996 WL 374180, at *3.
signs,

and

laboratory

See Soc. Sec. Ruling 96-

If an ALJ decides that the symptoms,

findings

reasonably

suggest

medical

equivalence or if an ALJ receives additional medical evidence that
he determines may change the consultant’s finding on equivalence,
then the ALJ must obtain an updated medical opinion. Id. at **3-4.
In Brister v. Apfel, 993 F. Supp. 574, 577 n.2 (S.D. Tex.

38

1998), cited by Plaintiff, the district court rejected an argument
similar to the one made by Plaintiff here, noting that the decision
whether additional medical evidence requires an updated medical
opinion is up to the judgment of the ALJ.

An ALJ may ask for the

opinion of a medical expert at a hearing, but it is not mandatory.
Madis
(5th

v.

Cir.

Massanari,
Nov.

5,

No.

01-50430,

2001

2001)(unpublished);

WL

see

1485699,

also

20

at

*1

C.F.R.

§§

404.1527(e)(2)(iii), 416.927(e)(2)(iii).
Here, there is no evidence indicating that Plaintiff’s severe
impairments

or

combination

impairment in the Listings.

of

impairments

met

or

equaled

an

The initial denial determination was

issued in November 2009, one month shy of the last date on which
Plaintiff was insured.175

Dr. Wright initially reviewed the file

and signed the disability determination form finding Plaintiff not
disabled.

Although Dr. Wright did not identify which Listings he

considered176 in assessing whether Plaintiff was disabled, the
disability

determination

form

does

list

major

depression

and

degenerative joint disease as the two primary diagnoses considered.
The court must assume that the medical consultant looked at the
Listings in the process of determining whether Plaintiff was

175

By the time of the reconsideration decision, in March 2010,
Plaintiff’s insured status had expired. Even so, Eugenia C. Goodman, M.D., and
Michele Chappuis, Ph.D., reviewed the file through December 2009 and found
Plaintiff not to be disabled. See Tr. 28-29, 350-52.
176

The ALJ specifically noted in the decision that he considered
Listings 1.02, 3.02, and 12.04.

39

disabled.177
At the time of the initial determination, Dr. Wright completed
a Physical RFC Assessment, and Dr. Reddy completed a Psychiatric
Review

Technique

and

a

Mental

RFC

Assessment.

Dr.

Reddy

specifically found that Plaintiff did not meet Listing 12.04 for
affective disorders.

Dr. Reddy also concluded that Plaintiff was

not significantly limited in eleven of twenty functional areas and
was moderately limited in the other nine.
The court finds that these assessments are particularly timely
and relevant.

Plaintiff’s suggestion that the ALJ’s reliance on

them was improper because they were completed substantially prior
to the September 2010 hearing and before the 2010 medical evidence
was submitted raises absolutely no red flags in this particular
case because the window within which Plaintiff needed to prove
disability closed on December 31, 2009.
In light of the foregoing, the court finds that the ALJ,
having properly relied on and weighed the medical opinions in the
complete record before him, acted within his discretion and based
his decision on substantial record evidence.
relevant

medical

evidence

not

considered

Plaintiff raises no
by

the

SSA

medical

consultants that would have necessitated calling another expert

177

Plaintiff speaks of “the potential medical equivalency of
[P]laintiff’s cumulative impairments,” suggesting that the combination of her
severe impairments could meet a Listing. Doc. 11, Pl.’s Mot. for Summ. J. p. 5.
However, Plaintiff fails to cite a Listing (and the court has not located one)
that could be met by combining the impairments identified by the ALJ.

40

witness to render an updated opinion on medical equivalency, RFC,
or any other matter.178
3.

Record Development

Plaintiff contends that the ALJ’s failure to consult a medical
expert for an updated opinion constituted a failure to develop the
case.

The Fifth Circuit imposes a duty on the ALJ to fully and

fairly

develop

the

disability benefits.

facts

relating

to

Plaintiff’s

claim

for

Newton v. Apfel, 209 F.3d 448, 458 (5th Cir.

2000). However, reversal of the ALJ’s determination is appropriate
only if Plaintiff can show prejudice from the ALJ’s failure to
request additional evidence.

Id.

Prejudice can be established by

“showing that additional evidence would have been produced if the
ALJ had fully developed the record, and that the additional
evidence might have led to a different decision.”

Id. (quoting

Ripley v. Chater, 67 F.3d 552, 577 n.22 (5th Cir. 1995)).
As explained above, the ALJ in this case was not required to
obtain an opinion from a medical expert, and the failure to do so
is supported by substantial evidence. Thus, the ALJ did not err in
failing to develop the case. Moreover, even if the ALJ should have

178
Plaintiff asserts in general terms that consideration of the
“cumulative physiological/psychological nexus between [Plaintiff’s] disparate
mental and physical conditions” is “medically complicated” and required the
consultation of a medical expert.
Doc. 11, Pl.’s Mot. for Summ. J. p. 6.
Plaintiff also asserts that the consultation of an orthopedic medical examiner
would have resulted in a different outcome or, at least, “in a much more
logically defensible decision.” Id. p. 8. The court is not moved by these
assertions. As to the first, physicians were consulted in the review process,
and, as to the second, Plaintiff fails to indicate what additional evidence an
orthopedic consultation would have generated.

41

obtained

an

consultative

opinion

from

examination,

a

medical

Plaintiff

expert

points

or

to

no

requested

a

additional

evidence that would have been adduced that could have changed the
result.

Therefore, Plaintiff has failed in her burden of showing

that she was prejudiced by the ALJ’s failure to consult a medical
expert.
C.

Dr. Manning’s Opinion
Plaintiff argues that the ALJ should have given Dr. Manning’s

RFC assessment deference, and, if the ALJ had, he would have found
Plaintiff capable of less than sedentary work.

She also contends

that the ALJ erred in summarily rejecting Dr. Manning’s opinion
without a meaningful explanation of his reasons for doing so.
Defendant responds that the ALJ did consider Dr. Manning’s
opinion but gave it less weight because Dr. Manning’s opinion
relied heavily on Plaintiff’s subjective report of symptoms and
limitations and was inconsistent with the medical evidence and
Plaintiff’s testimony.
The ALJ must evaluate every medical opinion in the record and
decide what weight to give each.
416.927(c).

See 20 C.F.R. §§ 404.1527(c),

Generally, the ALJ will give more weight to medical

sources who treated the claimant.

See 20 C.F.R. §§ 404.1527(c),

416.927(c); Greenspan, 38 F.3d at 237.

However, the treating

physician’s medical opinion is “far from conclusive” and will be
given

less

weight

when

they

are

42

“brief

and

conclusory,

not

supported by medically acceptable clinical laboratory diagnostic
techniques, or otherwise unsupported by the evidence.”
38

F.3d

at

237;

see

also

20

C.F.R.

§§

Greenspan,

404.1527(c)(2),

416.927(c)(2); Newton, 209 F.3d at 456; Soc. Sec. Ruling 96-6p,
1996 WL 347180, at *3.
When the ALJ does not give a treating physician’s opinion
controlling weight, he must apply the factors outlined in the
regulations to determine the weight to give the opinion. 20 C.F.R.
§§ 404.1527(c)(2), 416.927(c)(2).

Among the factors are medical

signs and laboratory findings presented in support of the opinion
and consistency with the record as a whole.
404.1527(c)(2), 416.927(c)(2).

See 20 C.F.R. §§

Engaging in a discussion of these

factors is not required unless the ALJ “summarily reject[s] the
opinions of [a] treating physician, based only on the testimony of
a non-specialty medical expert who had not examined the claimant.”
Newton, 209 F.3d at 458.
The ALJ in this case outlined Dr. Manning’s opinion on
Plaintiff’s RFC and provided good reasons for the weight given to
it,

as

required

by

the

regulations.

404.1527(c)(2), 416.927(c)(2).
inconsistent

with

the

Plaintiff’s testimony.

See

20

C.F.R.

§§

The ALJ found that the opinion was

objective

medical

evidence

and

with

The court finds substantial evidence to

support the ALJ’s opinion.

For example, the x-rays and MRIs

revealed mild and moderate degenerative changes; the physicians

43

observed Plaintiff’s ability to ambulate without difficulty and
recommended conservative treatments;179 and Plaintiff admitted the
ability to care for her children, to perform housework, to prepare
meals, to shop for groceries, and occasionally to lift ten pounds.
The ALJ also stated that he doubted Dr. Manning’s opinion
because it appeared that she had “relied quite heavily on the
subjective report of symptoms and limitations provided by the
claimant[] and seemed to uncritically accept as true most, if not
all, of what the claimant reported.”180
The court finds the ALJ’s reasons sufficient for discounting
Dr. Manning’s opinion concerning Plaintiff’s RFC, an issue for
which the ALJ has the final responsibility.
D.

Sustained Employment
Plaintiff argues that, at step five, the Commissioner must

show that Plaintiff was capable of maintaining employment in order
to rebut Plaintiff’s demonstration of inability to perform her past
relevant work.

This argument simply does not apply to the ALJ’s

decision in this case because the ALJ did not reach step five,
finding Plaintiff capable of performing her past relevant work at
step four.
Nevertheless, Defendant responds that the medical record

179
In addition to Dr. Metzger’s conservative treatment methods, Dr.
Croock referred to Plaintiff as clinically stable and recommended lifestyle
changes such as a healthy diet, vitamins, and smoking cessation.
180

Tr. 40.

44

contains no evidence that Plaintiff has an impairment that waxes
and wanes and that Plaintiff did not cite to any such evidence.
Additionally,

Defendant

argues

that

inherent

in

the

ALJ’s

determination that Plaintiff has the RFC to perform a range of
sedentary work is the finding that she could do so on a sustained
basis.
In reaching a decision on RFC, the ALJ is required to perform
a function-by-function assessment of “an individual’s ability to do
sustained work-related physical and mental activities in a work
setting on a regular and continuing basis” and to “discuss the
individual’s ability to perform sustained work activities in an
ordinary work setting on a regular and continuing basis.” Myers v.
Apfel, 238 F.3d 617, 620 (5th Cir. 2001)(quoting Soc. Sec. Ruling
96-8p, 1996 WL 374184, at *1, *7 (S.S.A. 1996)); see also 20 C.F.R.
§ 404.1545(b), (c); 20 C.F.R. § 416.945(b), (c).

Only if the

claimant shows that her physical ailment, by its very nature, waxes
and wanes so as to prevent sustained employment will the ALJ need
to make a specific finding regarding the ability to maintain
employment.

Perez v. Barnhart, 415 F.3d 457, 465 (5th Cir. 2005).

Plaintiff does not point to any medical evidence showing that
any of her physical ailments, by its very nature, waxes and wanes
in its manifestation of disabling symptoms.

The only evidence of

waxing and waning is in Dr. Manning’s RFC assessment, which the ALJ
discounted for valid reasons.

Even there, though, Dr. Manning

45

simply

answered

“yes”

to

the

question

whether

Plaintiff’s

“impairments were likely to produce ‘good days’ and ‘bad days’”
without giving any specific details or affirming that the symptoms
could be disabling in intensity on the “bad days.”181
In the absence of such evidence, the ALJ’s finding that
Plaintiff had the RFC to perform her past work as a bookkeeper
means that he made the required finding that she could perform the
work

on

a

regular

and

continuing

basis.

See

20

C.F.R.

§

404.1545(b), (c); 20 C.F.R. § 416.945(b), (c); Perez, 415 F.3d at
465. By finding Plaintiff capable of a limited range of sedentary
work, the ALJ necessarily considered her ability to perform that
work on a sustained basis.
E.

GAF Scores and Psychological Treatment
Plaintiff argues that a consistent GAF score in Plaintiff’s

range

demonstrates

that

Plaintiff’s

physicians

believe[d]” that Plaintiff was disabled.182

“obviously

Plaintiff also points

out that Plaintiff’s treatment plan included psychotherapy sessions
twice a month, but fails to explain how that affected her ability
to work.
Defendant responds that Plaintiff’s GAF scores indicate only
moderate symptoms, and the ALJ specifically addressed the scores,
concluding that they did not support a finding of disabling mental

181

Tr. 449.

182

Doc. 11, Pl.’s Mot. for Summ. J. p. 11.

46

impairment.

With regard to frequent mental health treatment,

Defendant agrees that Plaintiff did receive frequent treatment but
argues that the medical records indicate that it helped her
condition.

The ALJ, Defendant notes, found Plaintiff’s major

depressive disorder to be a severe impairment and included related
limitations in her RFC.
A GAF score between 51-60 is indicative of “moderate symptoms
OR any moderate difficulty in social, occupational, or school
functioning.”

Diagnostic & Statistical Manual of Mental Disorders

32 (Am. Psychiatric Ass’n 4th ed. 2000).

On multiple occasions,

Plaintiff

that

was

assessed

with

a

GAF

in

specifically noted this fact and its meaning.
that

Plaintiff’s

mental

appropriate

affect,

cognition,

and

status

goal

normal

thought
content

The

ALJ

The ALJ also noted

examinations

oriented
thought

range.

had

“confirmed

processing,
without

alert

delusions,

hallucinations, or suicidal/homicidal ideations.”183
The

fact

of

the

matter

is

that

the

ALJ

clearly

took

Plaintiff’s mental health into consideration in determining her
disability

status.

He

found

her

depression

to

be

a

severe

impairment, discussed information from the psychotherapy progress
notes, considered the meaning of the GAF scores, and included in
the RFC that Plaintiff was restricted to detailed work at a
unforced rate.

183

Plaintiff disagrees with the ALJ’s assessment but

Tr. 40.

47

has not raised any error on his part or identified ways in which
Plaintiff was totally disabled by her depression.
Plaintiff
beginning

of

attended
June

six

through

psychotherapy
September

2009.

sessions

from

the

Other

than

the

consultative evaluation in October, Plaintiff did not see a mental
health provider through the remainder of 2009. Moreover, Dr. Reddy
assessed the record at the end of November 2009 and determined that
Plaintiff did not meet a mental health listing and had a mental RFC
that indicated her ability to perform work functions with no more
than moderate difficulty.
The court finds that the ALJ’s assessment is supported by
substantial evidence.
F.

Medication Side Effects
Plaintiff argues that her prescribed pain medication had known

side effects of drowsiness and/or dizziness.

Defendant responds

that Plaintiff never reported any side effects of her medication.
The regulations state that any side effects of medication
should be considered when reaching a decision on a claimant’s
ability

to

work.

20

C.F.R.

§§

404.1529(c)(3)(iv),

416.929(c)(3)(iv); see also Loza, 291 F.3d at 396-97.

Plaintiff

does not point to any evidence in her medical record to support the
contention that she actually experienced side effects from her
medication, much less that the side effects affected her ability to
work.

48

The record shows that she never complained of side effects to
any provider and that she reported on disability forms that she had
none.

Only one mention of drowsiness appears in a form in which

she also indicated she experienced no side effects.

The ALJ’s

determination with regard to medication side effects is well
supported by record evidence.
G.

Summary
Finding no legal error in the ALJ’s decision and finding that

substantial record evidence supports his conclusion that Plaintiff
is not disabled, the court cannot overturn the decision.
IV.

Conclusion

Based on the foregoing, the court DENIES Plaintiff’s Motion
for

Summary

Judgment

and

GRANTS

Defendant’s

Cross-Motion

Summary Judgment.
SIGNED in Houston, Texas, this 25th

49

day of April, 2013.

for