Hoyle v. Astrue

Filing 14

MEMORANDUM OPINION granting 9 Cross MOTION for Summary Judgment; denying 11 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
ALYSON DIANE HOYLE,

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

CIVIL ACTION NO. H-12-3464

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

(Doc.

11)

Judgment (Doc. 9).

and

Defendant’s

Cross-Motion

for

Summary

The court has considered the motions, the

responses, all other relevant filings, 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. 5, 7, 8.

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

Medical History
Plaintiff was born on September 9, 1964, and was forty-five

years old on June 8, 2010, the alleged disability onset date.3
Plaintiff obtained a high school diploma, completed one semester of
college, and worked as a billing clerk for Trophy Nissan until June
8, 2010.4

Plaintiff’s prior relevant work experience included

employment as a billing clerk for Greenville Pontiac Buick GMC and
Chastang

Enterprises,

a

finance

manager

for

Limon

Chrysler

Plymouth, and a claims clerk and warranty administrator for Perkins
Motor Company.5
1.

Physical History

Prior to 2010,6 Plaintiff had been diagnosed with: psoriatic
arthritis with aspects of undifferentiated spondyloarthropathy,
lumbar

3

type;

iron-deficiency

anemia;

hypertension;

recurring

See Tr. of the Admin. Proceedings (“Tr.”) 10, 16, 17, 18, 132-39,

149, 153.
4

See Tr. 31, 46, 140-46, 154 160, 300.

5

See Tr. 30-32, 46, 140-46, 154, 160-67.

6

The court notes that the record contains many treatment notes from
prior to the alleged onset date and from after the decision of the Administrative
Law Judge. The only records that are important to the court’s review are those
that inform the court of Plaintiff’s condition between the alleged onset date
(June 8, 2010) and the date of the ALJ’s decision (May 11, 2011). For this
reason, the court discusses the relevant treatment notes for appointments and
test results for the period May 13, 2010, to August 8, 2011.
2

Epstein-Barr syndrome; sleep apnea; and depression.7 Plaintiff
continued to receive medical treatment for those conditions in
2010.8
A few weeks prior to the alleged onset date, Les T. Sandknop,
D.O., (“Dr. Sandknop”) noted on laboratory results from specimens
collected on May 13, 2010, “All [g]ood except at end of E.V.B.
[sic].”9

The latter portion of his note apparently referred to the

Epstein-Barr Virus Panel.10
In a letter addressed to “To Whom it may concern” dated June
8, 2010, Dr. Sandknop wrote that he was Plaintiff’s treating
physician for psoriatic arthritis, iron-deficiency anemia, and
hypertension

and

that

Plaintiff

was

under

the

care

of

a

rheumotologist.11 Dr. Sandknop explained that Plaintiff’s diseases
affected “her ability to function in a normal capacity” and opined
that “[s]ome days can be worse than others.”12
Plaintiff

was

unable

to

work

at

that

He concluded that

time.13

Dr.

Sandknop

apparently did not see Plaintiff on that day, as he did not write

7
See Tr. 68, 132, 134, 153, 156-59, 168, 300, 303-04, 308, 317-20,
327, 329, 332, 519, 529, 549-54.
8

See id.

9

Tr. 392.

10

See Tr. 392-93.

11

See Tr. 332.

12

Id.

13

See id.
3

a treatment note.
On

October

27,

2010,

Dr.

Sandknop

completed

a

Multiple

Impairment Questionnaire (“MIQ”) and indicated that, since March
2005, he had been treating Plaintiff almost every month, but
certainly once every six months for blood tests.14

Dr. Sandknop

reported that Plaintiff’s most recent appointment was in May 2010,
over five months before Dr. Sandknop completed the MIQ.15

He

indicated that all of Plaintiff’s symptoms and limitations had been
present since March 2005.16
In the MIQ, Dr. Sandknop stated Plaintiff’s prognosis was poor
as a result of her diagnoses of degenerative disc disease of the
lumbar spine, psoriatic arthritis, anemia, and cardio-vascular
disease.17

He pointed to a pelvic ultrasound, magnetic resonance

images (MRIs) of the lumbar spine, cervical spine, and brain, a
renal scan, a lower extremity arterial doppler ultrasound, and
blood tests as the medical testing in support of the diagnoses.18
Dr. Sandknop described Plaintiff’s pain and fatigue as moderately
severe and reported that he was unable to relieve her pain through

14

See Tr. 350-57.

15

Tr. 350, 357; see also Tr. 227, 359.

16
Tr. 356 (answering March 2005 to the question, “In your best medical
opinion, what is the earliest date that the description of symptoms and
limitations in this questionnaire applies?”).
17

See Tr. 350.

18

Tr. 350-351.
4

medication without unacceptable side effects.19

In response to a

question asking for a list of the patient’s medications and side
effects, the doctor listed eight medications, including Enbrel and
Methotrexate,20 and one vitamin supplement; the only side effect
noted was “extreme fatigue” in connection with Enbrel injections.21
Regarding Plaintiff’s residual functional capacity (“RFC”),
Dr. Sandknop opined that Plaintiff could sit for a total of no more
than one hour in an eight-hour workday, could stand/walk for a
total of no more than one hour in an eight-hour workday, and would
need to have the option of moving around with some frequency as
dictated by pain.22

He indicated that Plaintiff was incapable of

lifting or carrying any weight at all and was incapable of pulling,
pushing, kneeling, bending, or stooping.23

Dr. Sandknop rated

Plaintiff’s degree of limitation with regard to grasping, turning,
and

twisting

objects

and

using

her

fingers/hands

for

fine

manipulations as moderate (significantly limited but not completely
precluded) and rated her degree of limitation with regard to using
her arms for reaching as marked (essentially precluded).24 Further,

19

Tr. 352.

20

Enbrel and Methotrexate are used in combination to treat arthritis.
See WebMD, http://www.webmd.com/drugs/drug-16772-Enbrel+SubQ.aspx?drugid=16772&
drugname=Enbrel+SubQ&source=3 (last visited July 8, 2013).
21

See Tr. 354.

22

Tr. 352.

23

Tr. 356.

24

Tr. 353-54.
5

he indicated that she should avoid dust, heights, temperature
extremes, fumes, noise, and gases.25

Dr. Sandknop opined that

Plaintiff was incapable of performing a full-time, competitive job
that required sustained activity, that she could not tolerate any
stress, and that she was not capable of working eight-hour days.26
Lab tests dated the same date that Dr. Sandknop completed the
MIQ (October 27, 2010) revealed all areas measured to be within the
normal

range

except

for

mean

corpuscular

volume

and

mean

corpuscular hemoglobin, which were both slightly higher than the
reference range.27

Dr. Sandknop did not enter a treatment note for

that day, suggesting that he did not actually see Plaintiff.
On December 27, 2010, Plaintiff returned to Dr. Sandknop for
a check-up, complaining of a possible bladder infection, and for
prescription refills.28

Plaintiff reported that she was “doing

well” and mentioned nothing about experiencing side effects.29

As

part of the treatment plan, Dr. Sandknop noted that Plaintiff
should see a rheumatologist.30
Plaintiff later met with her treating rheumatologist, Pooja

25

Tr. 356.

26

Tr. 355.

27

See Tr. 386-87.

28

See Tr. 358.

29

Id.

30

See id.
6

Banerjee, M.D., (“Dr. Banerjee”), on March 3, 2011.31

During that

appointment, Dr. Banerjee noted Plaintiff’s complaints of diffuse
aches and pains and the existence of psoriatic plaques32 in her
hairline and on the distal arm.33

Dr. Banerjee diagnosed Plaintiff

with psoriatic arthritis with psoriasis and obstructive sleep
apnea.34

Dr. Banerjee recommended Plaintiff continue taking Enbrel

and Methotrexate.35
On

July

22,

2011,

Dr.

Impairment Questionnaire.36
treating

Plaintiff

for

Banerjee

completed

an

Arthritis

Dr. Banerjee stated that she was

psoriatic

arthritis

with

features

of

undifferentiated spondyloarthropathy, lumbar type, and indicated
that Plaintiff’s most recent appointment had been in March 2011.37
From the form’s list of eighteen clinical findings related to
arthritis, the doctor indicated only that Plaintiff suffered muscle
weakness,

bilateral

(blurred vision).

31

reduced

grip

strength,

and

sensory

loss

Dr. Banerjee noted that a joint scan showed

See Tr. 211-18, 511.

32

Psoriatic plaques are “circumscribed red patches covered by white
scales,” characterizing chronic skin disease psoriasis.
Merriam-Webster’s
Medical Dictionary 567 (1995).
33

See Tr. 511.

34
See Tr. id. The doctor also listed “TDM” as a diagnosis. See id.
The court is unable to glean from the record what that acronym means.
35

See id.

36

See Tr. 211-18.

37

See Tr. 211.
7

which joints had the most damage and that those joints were the
ones where Plaintiff had the most pain and was most limited in
movement.38
Dr.

Banerjee’s

assessment

of

Plaintiff’s

identical to that of Dr. Sandknop.39

RFC

was

nearly

Dr. Banerjee found that

Plaintiff could sit for a total of no more than one hour in an
eight-hour workday, could stand/walk for a total of no more than
one hour in an eight-hour workday, and would need to have the
option of moving around with some frequency as dictated by pain.40
Dr. Banerjee opined that Plaintiff could walk only short distances
and could climb only a few stairs.41 The doctor further opined that
Plaintiff was incapable of lifting or carrying any weight at all
and was incapable of pulling, pushing, kneeling, bending, and
stooping.42
Dr. Banerjee rated Plaintiff’s degree of limitation with
regard to grasping, turning, and twisting objects and using her
fingers/hands for fine manipulations as moderate (significantly
limited but not completely precluded) and rated her degree of
limitation with regard to using her arms for reaching as marked

38

See Tr. 211-12.

39

Compare Tr. 213-17 with Tr. 352-56.

40

Tr. 214.

41

See Tr. 213.

42

Tr. 215, 217.
8

(essentially precluded).43

According to Dr. Banerjee, Plaintiff

needed to avoid dust, heights, temperature extremes, fumes, noise,
and gases, was experiencing psychological limitations and limited
vision, and could not handle stress.44

The doctor concluded that

Plaintiff was “not recommended to work” and that “[h]er condition
[would] not improve but [would] worsen in time.”45
Around the time of Plaintiff’s first appointment with Dr.
Banerjee, Plaintiff also returned to Strawberry Health Center for
an

annual

examination.46

At

this

appointment,

her

physical

examination revealed normal skin condition and blood pressure.47
In a social narrative note dated to coincide with this appointment,
Plaintiff rated her health as a five on a scale from one to ten
with ten being the best.48

She reported that she did not have any

physical limitations and did not need help with daily activities,
including cooking, bathing, and transportation.49
At her follow-up appointment at the Strawberry Health Center
on May 4, 2011, Plaintiff reported she was “doing well” with

43

Tr. 213.

44

Tr. 216, 217.

45

Tr. 217.

46

See Tr. 530.

47

See Tr. id.

48

See Tr. 546.

49

See Tr. 547.
9

medication for her psoriatic arthritis.50

Furthermore, Plaintiff

reported that medication was controlling her hypertension and
dyslipidemia and that her Continuous Positive Airway Pressure
(CPAP)

machine

was

controlling

her

sleep

apnea.51

Although

Plaintiff had a prescription for medication for psoriatic arthritis
from her March 2011 appointment with Dr. Banerjee, she had not
filled the prescription because she lacked insurance.52

Plaintiff

denied experiencing medication side effects.53
At Plaintiff’s next evaluation on June 30, 2011, Noranna B.
Warner, M.D., (“Dr. Warner”) noted psoriatic plaques on Plaintiff’s
neck.54

Plaintiff assessed her pain level as a two on a ten-point

scale with ten as the worst pain.55

She described the pain as

acute, continuous, burning, nagging, and squeezing.56

Medication

“ma[de] the pain better,” she stated, and walking made it worse.57
Dr. Warner ordered laboratory tests.58

X-rays taken that day

revealed no persisting or acute abnormalities of the wrists, hands,

50

Tr. 519.

51

See Tr. 519, 529.

52

See Tr. 529.

53

See Tr. 519, 529.

54

See Tr. 647.

55

See Tr. 656.

56

See id.

57

Id.

58

See Tr. 652.
10

or cervical spine, although the x-ray of the cervical spine
revealed mild disc space narrowing and confirmed lumbar spondylosis
with degenerative disc disease.59
At an August 8, 2011 follow-up, the examination did not reveal
evidence of synovitis60 or psoriasis.61

Furthermore, Plaintiff was

found to possess full, bilateral range of motion as well as a 5/5
muscle strength in the upper and lower extremities.62
2.

Psychological History

On August 3, 2010, Dr. Sandknop completed a Treating Physician
Mental Functional Assessment Questionnaire and indicated that
Plaintiff

was

being

treated

for

responding well to medication.63

a

mental

condition

and

was

The doctor did not answer other

questions on the questionnaire regarding diagnosis and functional
limitations.64

The record does not reflect that Dr. Sandknop saw

Plaintiff on that day.
The next mention of Plaintiff’s mental condition occurred in

59

See Tr. 559-64.

60

Synovitis is an “inflammation of the synovial membrane” (“the dense
connective-tissue membrane that secretes synovia,” which is “a transparent viscid
lubricating fluid secreted by a membrane of an articulation, bursa, or tendon
sheath”) “usu[ally] with pain and swelling of the joint.” Merriam-Webster’s
Medical Dictionary 683 (1995).
61

See Tr. 577, 635-36.

62

See Tr. 635-36.

63

See Tr. 341.

64

See id.
11

March 2011 during an annual examination.65
(“Dr.

Shetty”)

insomnia.66

prescribed
instructed

She

appointment.67

Celexa

for

Plaintiff

Shubha P. Shetty, M.D.,
anxiety

to

and

schedule

a

Ambien

for

psychiatry

Notes from Plaintiff’s appointment on May 4, 2011,

indicated “a normal mood and affect.”68
On June 3, 2011, a resident in the psychiatry department at
the

Strawberry

Health

Center

evaluated

Plaintiff.69

Plaintiff

complained of experiencing depressed mood for five years, citing
various family-related stressors.70

Plaintiff indicated that she

was not suicidal or homicidal at the time but had previously
experienced fleeting, passive suicidal ideation with no plan or
intent.71

She indicated that she had taken several medications for

depression but found them to be ineffective.72

She also reported

experiencing anxiety symptoms for a number of years, but admitted

65

See Tr. 528-35.

66

See Tr. 530.

67

See Tr. 530, 531.

68

Tr. 520.

69
See Tr. 512-19; 657-64. The record contains two sets of treatment
notes for many of Plaintiff’s appointments. The court notes that, with regard
to the notes from the psychiatric evaluation on June 3, 2011, one set is more
complete. Compare, e.g., Tr. 512, 514 with Tr. 657-68, 660. The court relies
on the more complete set.
70

See Tr. 657.

71

See id.

72

See Tr. 513.
12

that they had improved over the years.73 However, she claimed that,
in the past year, Celexa seemed less effective against anxiety as
she became increasingly depressed.74
The

resident

diagnosed

Plaintiff

with

major

depressive

disorder, recurrent, general anxiety disorder with panic attacks
and determined her global assessment of functioning (GAF) score to
be fifty-five.75
of

Celexa

to

medications,

The treatment plan included increasing the dosage
treat

depression

referring

Plaintiff

and
for

anxiety,

adjusting

individual

other

therapy,

and

ordering laboratory tests.76
At a follow-up appointment on August 8, 2011, Plaintiff showed
marked improvement due to the increased dosage: brighter mood, no
panic attacks, and “no untoward side effects of medications.”77 She
bore only moderate symptoms of major depressive disorder at this
juncture, and her resulting insomnia was under control through
sleeping aides.78
B.

Application to Social Security Administration

Plaintiff filed for disability insurance benefits and for

73

See Tr. 658.

74

See Tr. 657, 658.

75

See Tr. 660.

76

See id.

77

Tr. 541.

78

See Tr. 541-42.
13

supplemental security income in June 2010, claiming an inability as
of June 8, 2010, to work due to: psoriatic arthritis with features
of undifferentiated spondyloarthropathy, lumbar type; recurring
Epstein-Barr

syndrome;

chronic

iron

deficiency

anemia;

hypertension; and depression.79
According to Plaintiff, her daily activities in July 2010
included hanging up laundry, washing dishes, cleaning the house,
dusting, cooking small meals, running errands, reading, sewing,
watching

television,

necessary.80

grocery

shopping,

and

other

shopping

as

Furthermore, according to Plaintiff’s report, she

could walk for up to a quarter of a mile, ride in a car, attend
church, visit with family and friends, and sometimes go out to eat
with

others.81

However,

Plaintiff

stated

that

she

required

assistance in preparing full meals, performing yard and house work,
and completing tasks in or away from the house if they required
carrying items.82
With regard to her physical abilities, Plaintiff reported that
she could not lift more than five pounds for more than a few

79

See Tr. 31, 132, 134, 149, 153, 168. Although Plaintiff listed these
conditions as limiting her ability to work in a disability report dated June 28,
2011, her attorney provided a slightly different list in September 2011 when
appealing the ALJ’s decision. Compare Tr. 153 with Tr. 219. The attorney listed
degenerative disc disease, psoriatic arthritis, anemia, sleep apnea, and obesity.
See Tr. 219.
80

See Tr. 169-73.

81

See id.

82

See id.
14

seconds, stand for long or hold her arms up for very long, bend
over or reach above her head, or lift or push anything.83 Plaintiff
also indicated that depression and anxiety had limited her ability
to complete verbal instructions, concentrate on work, and handle
stressful situations.84
Concerning pain, Plaintiff stated, “It gets worse if I walk or
do anything for twenty minutes or so without sitting down.”85

If

she stopped walking, standing, or carrying, Plaintiff explained,
the pain would persist for about thirty minutes and then subside.86
Plaintiff found that Enbrel injections reduced some of the joint
pain and that Hydrocodone also helped alleviate the pain.87 Because
of aching, burning, and dryness in her eyes, Plaintiff stated, she
was unable to look at a computer or read for “any length of time.”
Yvonne Post, D.O., (“Dr. Post”) completed a Physical Residual
Functional Capacity Assessment on August 2, 2010.88

The assessment

reflected that Plaintiff was capable of occasionally lifting twenty
pounds, frequently lifting ten pounds, standing or walking for at
least two hours but typically for four hours consecutively in an
eight-hour workday, sitting for about six hours in an eight-hour
83

See id.

84

See id.

85

Tr. 177.

86

See Tr. 180.

87

See Tr. 178.

88

See Tr. 333-40.
15

workday, and pushing or pulling without limitations.89

Dr. Post

also opined that Plaintiff could frequently climb a ramp or stairs
as well as frequently balance, stoop, kneel, crouch, and crawl.90
No other physical limitations were found, and Dr. Post stated that
Plaintiff’s alleged limitations were not wholly supported by the
medical record.91
Plaintiff submitted a supplemental report on August 20, 2010,
in which she claimed that her conditions had worsened and her pain
was constantly severe.92

She reported daily stiffness upon waking

as well as pain in her back and arms.93

Furthermore, she claimed

an

small

increased

inability

to

complete

tasks

previously

accomplishable, as well as a sense of weakness.94 At this time, her
daily activities were restricted to dusting and jobs that did not
require

much

carrying.95

She

reported

decreased

immunity,

sleepiness, and nausea as side effects of her medication.96
On

August

completed

a

23,

2010,

second

89

See Tr. 336-38.

92

See Tr. 187-88.

93

See Tr. 187.

94

See Tr. 192-93.

95

See Tr. 192.

96

Rowley,
Residual

See id.

91

Physical

See Tr. 334.

90

Patty

See Tr. 190-91.
16

M.D.,

(“Dr.

Functional

Rowley”)
Capacity

Assessment.97

The assessment reflected that Plaintiff was still

capable of occasionally lifting twenty pounds, frequently lifting
ten pounds, standing or walking for at least two hours and up to
four in an eight-hour workday, sitting for about six hours in an
eight-hour workday, and pushing or pulling without limitations.98
Dr. Rowley also opined that Plaintiff could frequently climb a
ramp, stairs, ladder, rope, or scaffolds and could frequently
balance, stoop, kneel, crouch, and crawl.99

No other physical

limitations were found, and Dr. Rowley stated that Plaintiff’s
alleged limitations were only partially supported by the medical
record.100

Dr.

Rowley

found

that

the

treating

physician’s

conclusion that Plaintiff was unable to work was not supported by
the

physician’s

pointed

out

treatment

that

the

notes.101

treating

Additionally,

rheumatologist,

Dr.

Dr.

Rowley

Banerjee,

confirmed Plaintiff’s continued good responses to medications
despite the treating physician’s findings.102
On August 31, 2010, Darrick Wallace (“Mr. Wallace”) of the
Social

Security

Administration

97

See Tr. 342-49.

98

See Tr. 343.

99

See Tr. 344.

100

See Tr. 345-47.

101

See Tr. 348.

102

(“SSA”)

See id.
17

completed

a

Report

of

Contact to rule out depression as a disabling impairment.103

In

this report, Mr. Wallace stated that, in his interview with
Plaintiff,

Plaintiff

revealed

her

activities

of

daily

living

(“ADLs”) were not as limited as originally claimed in her own
reports.104 Plaintiff’s physical abilities included handling money,
completing chores, shopping in stores, spending time with others at
church and at home, eating out alone or with friends, preparing
meals, and driving a car.105

Furthermore, although Plaintiff

claimed to suffer from depression, Plaintiff appeared to “function
high in regards to her ADLs. No further development [is] warranted
for mental as there is no more than a minimal [e]ffect in ADLs from
a mental impairment.”106
Based on the evidence, the SSA denied Plaintiff’s application
at both the initial and reconsideration levels.107
requested
(“ALJ”).108

a

hearing

before

an

SSA

administrative

Plaintiff
law

judge

Plaintiff subsequently filed a final disability report

on September 17, 2010.109

In the report, Plaintiff stated that her

eyes were getting worse and that she could not look at a computer
103

See Tr. 195.

104

See id.

105

See id.

106

Id.

107

See Tr. 53-73.

108

See Tr. 77-78.

109

See Tr. 196-204.
18

for more than fifteen minutes or drive very long.110

She also

reported that her memory and ability to think clearly seemed to be
getting worse.111 Her reported medication side effects remained the
same as the last disability report.112
The ALJ granted Plaintiff’s request and conducted the hearing
on April 5, 2011.113
C.

Hearing
Plaintiff and Herman Litt (“Mr. Litt”), a vocational expert,

testified at the hearing.114 Plaintiff testified that she graduated
from high school with honors, attended one semester of college and
was last employed in June 2010 by Trophy Nissan as an accounting
clerk.115
her

At the hearing, she testified that she was living with

husband,

her

twenty-one-year-old

son,

his

wife,

and

her

sixteen-year-old son.116 She testified that reasons leading to her
unemployment included: an inability to perform required tasks,
trouble interacting with other employees, difficulties focusing on
projects and concentrating on verbal communication, and reduced

110

See Tr. 199, 202.

111

See Tr. 199.

112

See Tr. 200-01.

113

See Tr. 10, 24, 80-81, 87-103, 108-09, 114-15.

114

See Tr. 24-52.

115

See Tr. 30-31.

116

See Tr. 43.
19

productivity speeds.117
She identified Dr. Sandknop as her primary care physician who
had treated her for high blood pressure, depression, and high
cholesterol since 2005 and had referred her to other doctors for
more specialized issues.118

Pursuant to the questions posed by her

attorney, Plaintiff stated that she suffered from high blood
pressure,

psoriatic

arthritis,

both

spondylosis

ankylosing spondylitis, and depression.119

and

probably

Although she was taking

medication for each of these conditions, Plaintiff believed that
these conditions, especially the psoriatic arthritis, caused her to
experience neck and back pain, feet and ankle numbness, vision
impairment,

fatigue,

concentration.120

and

lack

of

strength,

focus,

and

Plaintiff claimed that the deterioration caused

by the psoriatic arthritis led to stiffness and tingling in various
joints in her hands, feet, and ankles from either too much or too
little movement.121
led

to

constant

Furthermore, Plaintiff stated the spondylosis
pain

in

her

neck,

hips,

continuous need to reposition her body.122

and

back

from

the

Additionally, Plaintiff

testified that she experienced dryness and irritation of the

117

See Tr. 42.

118

See Tr. 33.

119

See Tr. 32-44.

120

See id.

121

See Tr. 34-37.

122

See Tr. 36.
20

eyes.123
Plaintiff also testified that these impairments restricted her
ability to engage in her normal ADLs.124

According to Plaintiff,

the pain caused by the dryness and irritation of her eyes impaired
her ability to drive, read a book, or view a computer screen for
extended

periods

of

time.125

Plaintiff

stated

that

the

pain

attributed to her psoriatic arthritis prevented her from walking,
standing, or sitting for more than twenty minutes at a time.126
Furthermore, Plaintiff testified that the fatigue and lack of
strength caused by her psoriatic arthritis prohibited her from
carrying more than two to three pounds for more than a short
distance and prevented her from completing tasks such as cleaning,
personal hygiene, and cooking meals.127 According to Plaintiff, her
lack of concentration and focus also limited her communicative
response time and interactions with others.128

However, Plaintiff

admitted that she was taking medication for most, if not all, of
these impairments and largely experiencing positive reactions
without negative side effects.129

123

See Tr. 37.

124

See Tr. 36-44.

125

See Tr. 37-38.

126

See Tr. 40.

127

See Tr. 40, 42-43.

128

See Tr. 6, 42.

129

See Tr. 33, 35, 38.
21

Finally, when questioned by the

ALJ, Plaintiff stated that she had no problems with cardiovascular
disease and her cholesterol levels were under control.130
Having reviewed the record and heard Plaintiff’s testimony,
Mr. Litt testified that Plaintiff’s most recent work history and
experience

as

a

billing

clerk

constituted

semi-skilled

work

performed at a sedentary level of exertion.131 Plaintiff’s previous
work was designated as follows: (1) work as a finance manager
constituted skilled work performed at the sedentary level of
exertion and (2) work as a claims clerk constituted semi-skilled
work performed at a sedentary level of exertion.132
The ALJ then posed a hypothetical question to Mr. Litt asking
about the vocational opportunities for an individual of Plaintiff’s
age and education level relegated to sedentary work, limited to
only occasional postural maneuvers (such as balancing, kneeling,
stooping, crouching, climbing, and crawling) and prohibited from
exposure to dangerous machinery and unprotected heights.133

Mr.

Litt responded that the hypothetical individual could perform all
of Plaintiff’s prior work as a billing clerk, finance clerk, and
claims clerk.134
The ALJ then asked if there were three examples of other jobs
130

See Tr. 44.

131

See Tr. 46.

132

See id.

133

See Tr. 46.

134

See id.
22

for

such

an

individual,

affirmative.135
insurance

and

Mr.

Litt

responded

in

the

Such an individual would be able to work as an

clerk

(semi-skilled

work

and

sedentary

level

of

exertion), credit card clerk (semi-skilled work and sedentary level
of exertion), or claims clerk (semi-skilled work and sedentary
level of exertion), according to Mr. Litt.136
The ALJ posed a second hypothetical question in which he added
a limitation of performing only simple, routine, and repetitive
tasks not performed in a fast-paced production environment and
involving only occasional interaction with supervisors, coworkers,
and

the

general

public.137

Mr.

Litt

responded

that

such

an

individual would not be able to engage in any of Plaintiff’s past
work and that none of Plaintiff’s skills would be transferrable.138
However, such an individual would be able to perform other jobs
including surveillance monitor, order clerk, and sorter; all of
these were sedentary, unskilled jobs.139

The ALJ then inquired

about employer expectations with regard to the number of absences
allowed per month, the number of routine break periods allowed per
day, and the time allowed per task for the cited jobs, as well as
whether exceeding the employer-imposed limits in those areas on a
135

See id.

136

See Tr. 47.

137

See id.

138

See Tr. 47-48.

139

See Tr. 48.
23

regular

basis

would

eliminate,

not

only

the

discussed, but all competitive employment.140

jobs

previously

With regard to

whether all competitive employment would be eliminated if the
hypothetical individual could not meet employer expectations, Mr.
Litt responded in the affirmative.141
Plaintiff’s attorney then inquired as to whether such an
individual, further limited to an inability to handle any level of
stress, would be able to hold any of the previously discussed
positions.142
D.

Mr. Litt responded in the negative.143

The Commissioner’s Decision
On May 11, 2011, the ALJ issued an unfavorable decision.144

The ALJ found that Plaintiff met the insured status requirements of
the Act through December 31, 2012.145

The ALJ then followed the

five-step process for determining disability that is outlined in
the regulations, finding at the first step that Plaintiff had not
engaged in substantial gainful activity since June 8, 2010.146

At

the second step of the process, the ALJ found that Plaintiff had
multiple impairments – lumbar degenerative disc disease, psoriatic

140

See Tr. 48-49.

141

See Tr. 49.

142

See Tr. 49.

143

See id.

144

See Tr. 7-23.

145

See Tr. 12.

146

See Tr. 12.
24

arthritis, and chronic iron deficiency anemia – that were severe.147
With respect to Plaintiff’s mental impairments, the ALJ provided a
detailed analysis of Listing 12.00(C) of the regulations148 through
which the ALJ determined Plaintiff’s depression did not cause more
than minimal limitation and therefore was not severe.149
did

not

continue

his

discussion

of

Plaintiff’s

The ALJ
medically

determinable mental impairments into the remaining steps of the
sequential evaluation.150
At the third step of the analysis, the ALJ determined that
Plaintiff’s physical impairments, individually or in combination,
were not of a severity sufficient to meet or equal any impairment
described in the Listings at any point of the alleged disability
period.151

Regarding Plaintiff’s physical impairments, the ALJ

specifically considered Listing 1.04 (spinal disorders), Listing
7.02 (chronic anemia), Listing 14.09 (inflammatory arthritis), and
Listings 1.00(Q), 3.00(I), and 4.00(F) (all of which discuss
obesity).152
Having considered the entire record, the ALJ then conducted an
assessment of Plaintiff’s RFC based on the objective medical record

147

See Tr. 12-13.

148

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

149

See Tr. 13.

150

See id.

151

See Tr. 14.

152

See Tr. 14-16.
25

and

Plaintiff’s

testimony

and

conduct

at

the

hearing.153

He

determined that Plaintiff retained the RFC to perform sedentary
work with the following limitations: occasional postural maneuvers
(such as balancing, stooping, kneeling, crouching, crawling, and
climbing ramps, stairs, ladders, ropes, and scaffolds) and no
exposure to dangerous machinery and unprotected heights.154
Turning to steps four and five, the ALJ considered Mr. Litt’s
opinion that an individual of Plaintiff’s age, education, work
experience, and physical RFC would be able to perform Plaintiff’s
past relevant work as well as the jobs of insurance clerk, credit
card clerk, and claims clerk.155

Relying on Mr. Litt’s opinion and

the framework of Rule 201.22 of the SSA’s Medical-Vocational
Guidelines, the ALJ determined that Plaintiff was capable of
performing work existing in significant numbers in the regional and
national economies.156

The ALJ therefore concluded that Plaintiff

was not disabled under the Act at any point.157
Plaintiff appealed the ALJ’s decision and submitted additional
evidence.158

The Appeals Council denied Plaintiff’s request for

review, thereby transforming the ALJ’s decision into the final

153

See Tr. 16-19.

154

See Tr. 16.

155

See Tr. 17-19.

156

See Tr. 19, 57-58.

157

See Tr. 19.

158

See Tr. 1-5, 118.
26

decision of the Commissioner.159

Plaintiff then sought timely

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 the disability benefits is limited to the determination of
whether: (1) the ALJ applied proper legal standards in evaluating
the record; and (2) substantial evidence in the record supports the
decision.
A.

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

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

ultimate burden of proving she is disabled within the meaning of
the Act. Wren v. Sullivan, 925 F.2d 123, 125 (5th Cir. 1991)(citing
Cook v. Heckler, 750 F.2d 391, 393 (5th Cir. 1985)).

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).

159

See Tr. 1-3, 68-73, 117-19.
27

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.
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.

Greenspan, 38 F.3d at 236 (citing

Lovelace v. Bowen, 813 F.3d 55, 58 (5th Cir. 1987)).
B. Substantial Evidence
The widely accepted definition of “substantial evidence” is

28

“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

bears the duty of determining any evidentiary conflict.

Id.

If

the findings of fact contained in the Commissioner’s decision are
supported

by

substantial

record

evidence,

conclusive, and this court must affirm.

the

findings

are

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

overturn it.
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
Commissioner’s judgment. Brown v Apfel, 192 F.3d 492, 496 (5th Cir.
1999). Therefore, the court is to give the Commissioner’s decision
as

much

deference

meaningless.

as

possible

without

making

its

review

Id.
III. Analysis

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

disability

benefits.

Plaintiff

contends

that

the

Commissioner’s decision is not supported by substantial evidence
and

that

the

ALJ

did

not

follow

29

proper

legal

procedures.

Specifically, Plaintiff argues that: (1) the ALJ failed to follow
the “Treating Physician Rule;” (2) the ALJ failed to properly
evaluate Plaintiff’s credibility; and (3) the Appeals Council
failed

to

properly

rheumatologist.
sound

and

is

consider

new

evidence

from

Plaintiff’s

Defendant argues that the decision is legally
supported

by

substantial

evidence.

The

court

considers the merits of the arguments in turn.
A.

“Treating Physician Rule”
The “Treating Physician Rule,” to which Plaintiff refers,

states that “[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.
1990))(internal quotation marks omitted); see also SSR 96-2p, 1996
WL 374188, at **4-5 (S.S.A. July 2, 1996) (explaining when medical
opinions

by

weight);

20

treating
C.F.R.

416.927(c)(same).

physicians
§

are

entitled

404.1527(c)(same),

to
20

controlling
C.F.R.

§

However, an ALJ ultimately may give less weight

to the medical opinion of any physician when the statements are
conclusory, unsupported, or otherwise incredible. Newton, 209 F.3d
at

455-56.

Additionally,

any

physician’s

opinion

on

issues

reserved to the Commissioner, such as the plaintiff’s disability

30

status

and

the

significance.

plaintiff’s

RFC,

is

not

given

any

special

20 C.F.R. §§ 404.1527(d), 416.927(d); see also SSR

96-5p, 1996 WL 374183, at *1 (S.S.A. 1996).
If an ALJ decides not to afford the treating physician’s
opinion controlling weight, he must consider the following factors
in deciding how much weight to give the opinion:

the nature of the

relationship between the plaintiff and the physician; the medical
evidence supporting the physician’s opinion; the consistency of the
physician’s opinion with the record as a whole; the physician’s
specialization; and any other factors that tend to support or
contradict the opinion.
Based

on

those

20 C.F.R. §§ 404.1527(c), 416.927(c).

factors,

an

ALJ

must

provide

“appropriate

explanations for accepting or rejecting such opinions.” SSR 96-5p,
1996

WL

374183,

at

*5

(S.S.A.

1996);

see

also

20

C.F.R.

§

404.1527(c)(2)(“[The SSA] will always give good reasons in our
notice of determination or decision for the weight [the SSA]
give[s] your treating source’s opinion.”)
In the present case, the ALJ decided that Dr. Sandknop’s
opinion finding Plaintiff incapable of performing sedentary work
was not supported by objective findings and, thus, was not entitled
to controlling weight.160

The remainder of the ALJ’s discussion of

Dr. Sandknop’s opinion is a string of legal statements plucked from

160

See Tr. 17.
31

various

cases.161

These

statements

cover

the

treatment

of

conclusory opinions, subjective complaints, and objective medical
evidence.162

Although

accurate

statements

of

the

law,

discussion is completely devoid of application to this case.

the
In

other words, the ALJ failed to identify portions of the record that
support his decision to give lesser weight to Dr. Sandknop’s
opinion.

The only reason given is that Dr. Sandknop’s opinion was

not supported by objective findings.
In certain cases, that reason may be enough to satisfy the
requirement that the ALJ provide appropriate explanation for giving
a treating physician’s opinion less weight.

But, here, the ALJ’s

reason is not fully consistent with the record.

In the MIQ

completed in October 2010, Dr. Sandknop listed multiple positive
clinical findings and laboratory and diagnostic test results that
supported his diagnosis.

The ALJ neither explained why he found

the cited objective medical evidence to be insufficient to support
Dr. Sandknop’s diagnosis or RFC opinion nor cited the contrary
medical evidence on which the ALJ’s decision was based.163

161

See id.

162

See id.

163

The court acknowledges that, in determining what weight to give a
treating physician’s opinion if less than controlling, the ALJ must consider the
regulatory factors (nature of relationship, supportability, consistency,
specialization, and other factors). See 20 C.F.R. §§ 404.1527(c), 416.927(c).
The regulations require only that the ALJ consider the factors, not that the ALJ
include a factor-by-factor analysis in his opinion.
See 20 C.F.R. §§
404.1527(c), 416.927(c). The ALJ’s decision specifically referenced one of the
factors, supportability. The court has no reason to assume that the ALJ did not
consider the other relevant factors.
32

The ALJ’s failure to provide good reasons for the weight he
afforded Dr. Sandknop’s opinion, however, did not lead to an
incorrect decision.

Dr. Sandknop’s assessment of Plaintiff’s RFC,

the aspect of his opinion Plaintiff asserts should have been given
controlling weight, was not entitled to controlling weight in the
first place.

See 20 C.F.R. §§ 404.1527(d), 416.927(d); SSR 96-5p,

1996 WL 374183, at *1 (S.S.A. 1996).

RFC is one of the issues

reserved to the Commissioner, and, thus, the doctor’s opinion on
RFC is not entitled to any special significance.164

20 C.F.R. §§

404.1527(d), 416.927(d); SSR 96-5p, 1996 WL 374183, at *1 (S.S.A.
1996).
Although Dr. Sandknop had treated Plaintiff for several years
prior to the alleged onset date, his contact with Plaintiff during
the

relevant

period

primarily

consisted

of

completing

questionnaires and providing information about her disability
status.

He wrote the letter opining that Plaintiff was unable to

work on the day of the alleged onset of disability.
later,

he

completed

a

questionnaire

about

Two months

Plaintiff’s

mental

abilities, and, nearly three months after that, he completed the
MIQ in which he provided an opinion about Plaintiff’s physical RFC.
Curiously, he opined, in the MIQ, that the description given of
Plaintiff’s symptoms and limitations applied since March 2005, five

164

Also not entitled to any special significance was Dr. Sandknop’s
opinion, expressed in a letter dated June 8, 2010, that Plaintiff was “unable to
work at this time.” See Tr. 332; 20 C.F.R. §§ 404.1527(d), 416.927(d); SSR 965p, 1996 WL 374183, at *1 (S.S.A. 1996).
33

years prior to the date on which she stopped working and claimed
disability.
The only other contacts with Dr. Sandknop evidenced by the
record during the relevant period are laboratory results from
specimens collected on October 27, 2010, and one treatment note
from an appointment on December 27, 2010.

Neither the laboratory

results nor the treatment note suggested that Plaintiff’s condition
was such that she was unable to work.

In fact, the treatment note

indicated that she was doing well.
With regard to the battery of clinical and diagnostic tests
that

Dr.

Sandknop

listed

in

the

MIQ,

they

were

provided

specifically as support for his diagnoses of Plaintiff.165

He did

not explain how the results of those tests supported the highly
restrictive

RFC

he

attributed

to

Plaintiff.

Moreover,

his

assessment of Plaintiff’s RFC, which included up to one hour of
sitting and up to one hour of standing/walking in an eight-hour
workday with no lifting or carrying of any weight at all and no
pushing, pulling, kneeling, bending, or stooping, was contrary to
substantial evidence in the record, including Plaintiff’s own
testimony regarding her abilities.
For

example,

in

July

2010,

Plaintiff’s

daily

activities

included hanging up laundry, washing dishes, cleaning the house,

165

See Tr. 350 (answering question asking for clinical findings that
support the diagnosis); Tr. 351 (answering question asking for laboratory and
diagnostic test results that support the diagnosis).
34

dusting, cooking small meals, running errands, reading, sewing,
watching

television,

necessary.

grocery

shopping,

and

other

shopping

as

At that time, she could walk for up to a quarter of a

mile, ride in a car, attend church, visit with family and friends,
and sometimes go out to eat with others.

Moreover, in March 2011,

Plaintiff reported to treatment providers at Strawberry Health
Center that she did not have any physical limitations and did not
need help with cooking, bathing, transportation, and other ADLs.
The court finds that the ALJ’s decision with regard to the
weight given to Dr. Sandknop’s opinion complies with the law and is
supported by substantial evidence.
B.

The ALJ’s Evaluation of Plaintiff’s Credibility
Plaintiff next argues that the ALJ erred in discounting her

credibility, particularly with regard to medication side effects
and daily activities.

Plaintiff further claims that the ALJ

utilized “boilerplate language,”166 which turned the legal standard
on its head.
Though pain can constitute a disabling impairment, “the mere
existence

of

pain

is

not

an

automatic

ground

for

obtaining

disability benefits.” Fortenberry v. Harris, 612 F.2d 947, 950 (5th
Cir. 1980).

Once a medical impairment is established, “pain

constitutes a disabling condition . . . only when ‘it is constant,
unremitting, and wholly unresponsive to therapeutic treatment.’”

166

See Doc. 11, Pl.’s Mot. For Summ. J., 13-14.
35

Beck v. Barnhart, 205 F. App’x 207, 212 (5th Cir. 2006)(unpublished)
(citing Cook, 750 F.2d at 395).

The ALJ must consider subjective

evidence of non–exertional ailments that may have a disabling
effect, such as pain, along with other record evidence; however,
only if the ALJ finds the claimant’s testimony credible based on
the entire record must the ALJ fully credit her assertions of pain
without supporting medical evidence.

Beck, 205 F. App’x at 212;

see generally 20 C.F.R. §§ 404.1520, 416.920.
It is ultimately the responsibility of the ALJ to make the
determination of whether the pain is debilitating.
128.

Wren, 925 F.2d

Therefore, the ALJ’s conclusions regarding the disabling

effect of the subjective complaints, such as pain, “are entitled to
considerable judicial deference.”

James v. Bowen, 793 F.2d 702,

706 (5th Cir. 1986).
Here, the ALJ stated:
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 [RFC]
assessment.167
The ALJ indicated that Plaintiff never complained of side effects
to her physicians and that her reported activities were not
consistent with a claim of total disability.

He also noted that

impairments which are controlled by medication or treatment cannot
167

Tr. 17.
36

support a finding of disability.
The court begins with Plaintiff’s complaint regarding the
ALJ’s use of boilerplate language.

The court does not understand

the offending language (that the limiting effects of Plaintiff’s
symptoms were not credible to the extent they were inconsistent
with the ALJ’s RFC) to indicate that the ALJ first determined
Plaintiff’s RFC and then discredited Plaintiff’s testimony because
it did not agree with his assessment.
language

is

a

shorthand

way

of

Rather, it seems that the

indicating

what

aspects

of

Plaintiff’s testimony that the ALJ finds to be less credible.
Regardless, whether the ALJ employed boilerplate language in his
decision is simply not relevant to the court’s review.

The issue

here is whether the determination reflected in the language is
legally correct and supported by substantial record evidence with
regard to this particular Plaintiff.
Concerning side effects, Plaintiff did not report side effects
to her treatment providers during the relevant period and, in fact,
routinely denied experiencing any.168

Plaintiff points to two

questionnaires, one completed by Dr. Sandknop and one completed by
Dr. Banerjee, in which the doctors list side effects that Plaintiff
reported to them.

However, the doctors’ treatment notes do not

reflect that Plaintiff ever reported any side effect at her medical
appointments.

168

Plaintiff not only failed to report side effects

See, e.g., Tr. 358, 519, 529, 541, 665.
37

during

medical

appointments,

on

at

least

two

occasions

she

effects

was

affirmatively stated that the medications helped.169
Plaintiff’s

only

specific

mention

of

contained in the SSA application paperwork.170

side

There is no medical

record evidence of Plaintiff’s complaining of side effects to her
treating physicians.

Without such support, Plaintiff’s arguments

are unsubstantiated, and the court finds that the ALJ did not err
in his findings.
Concerning Plaintiff’s daily activities, the record shows
that, after the alleged onset date, Plaintiff engaged in household
activities such as hanging up laundry, washing dishes, dusting,
cleaning house, cooking small meals, and using small appliances.
Plaintiff also engaged in leisure activities within the household
such as reading, sewing, and watching television. Furthermore, the
records show that Plaintiff conducted business outside of the
household after the alleged onset date (such as running errands and
shopping) and engaged in social activities (such as driving,
shopping,

visiting

church).171

friends,

going

out

to

eat,

and

attending

This evidence supports the ALJ’s RFC findings that

Plaintiff

could

perform

a

limited

activities.

169

See Tr. 656, 665.

170

See Tr. 190-91, 200-01.

171

See Tr. 169-73.
38

range

of

sedentary

work

C.

New Evidence
Plaintiff argues that the Appeals Council failed to properly

consider new and material evidence, specifically the detailed
questionnaire from Plaintiff’s treating rheumatologist.
The Appeals Council is required to “evaluate the entire record
including the new and material evidence submitted.”

Higginbotham

v. Barnhart, 405 F.3d 332, 337 (5th Cir. 2005)(internal alterations
omitted)(quoting 20 C.F.R. § 404.970(b)).

The Appeals Council is

to consider “the additional evidence only where it relates to the
period on or before the date of the [ALJ’s] hearing decision.”
C.F.R. §§ 404.970(b), 416.1470(b).

20

Although all new and material

evidence must be considered, it need not be discussed in detail.
See Higginbotham, 405 F.3d at 335 n.1.
In its Notice of Appeals Council Action, the Appeals Council
indicated that it considered the additional evidence that was
listed in its Order of Appeals Council.172

In the order, the

Appeals Council did not include Dr. Banerjee’s questionnaire in the
list of exhibits considered as additional evidence, even though it
was

submitted

in

July

2011,

prior

to

the

Appeals

Council’s

decision.173
At first blush, something appears to be amiss.

However, the

questionnaire was completed on July 22, 2011, more than two months

172

See Tr. 1.

173

See Tr. 5.
39

after the date of the ALJ’s decision.174
Council

did

not

specifically

mention

Although the Appeals

that

it

considered

the

questionnaire, it indicated that it did consider the treatment note
from the only appointment that Plaintiff had with Dr. Banerjee
during the relevant time period.175

Perhaps more importantly, Dr.

Banerjee’s opinions in the questionnaire concern Plaintiff’s RFC
and ability to work, neither of which would be binding on the
Commissioner.

See Martinez v. Astrue, 252 F. App’x 585, 587 (5th

Cir. 2007)(unpublished)(stating that evidence is not probative when
it

offers

physician

opinion

on

disability

under

workers’

compensation system); see also 20 C.F.R. §§ 404.1527(d)(opinions on
RFC and disability status are not given any special significance),
416.927(d)(same).
Accordingly, the court finds that Dr. Banerjee’s questionnaire
was

not

material

to

the

Commissioner’s

determination

whether

Plaintiff was disabled at any point during the period June 8, 2010,
and May 11, 2011.

Because the questionnaire was not material, the

Appeals Council was not required to consider it.

See 20 C.F.R. §§

404.970(b),

finds

416.1470(b).

The

court

further

that

the

information in the questionnaire would not provide any reason to

174

See Tr. 218.

175

See Tr. 5, 511.
Dr. Banerjee’s note of March 2011 stated that
Plaintiff had not been seen in nearly a year, and the questionnaire, dated July
22, 2011, listed the March 2011 appointment as the most recent appointment. See
Tr. 218, 511.
40

reverse the ALJ’s decision, which was supported by substantial
evidence as explained above.
IV.

Conclusion

Based on the foregoing, the court DENIES Plaintiff’S
Motion for Summary Judgement and GRANTS Defendant’s Cross-Motion
for Summary Judgment.
SIGNED in Houston, Texas, this 23rd

41

day of July, 2013.