Woods v. Astrue
Filing
24
MEMORANDUM OPINION denying 17 Opposed MOTION for Summary Judgment , granting 16 MOTION for Summary Judgment (Signed by Magistrate Judge Nancy K. Johnson) Parties notified.(sbutler, 4)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
CECELIA WOODS,
§
§
Plaintiff,
§
§
v.
§
§
CAROLYN W. COLVIN,1
§
ACTING COMMISSIONER OF THE
§
SOCIAL SECURITY ADMINISTRATION, §
§
Defendant.
§
CIVIL ACTION NO. H-13-120
MEMORANDUM OPINION
Pending before the court2 are Plaintiff’s Motion for Summary
Judgment
(Doc.
17)
Judgment (Doc. 16).
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 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 Comissioner 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. 11, 13.
disability insurance benefits under Title II of the Social Security
Act (“Act”). Plaintiff seeks benefits for a closed period, July 1,
2008, through December 31, 2008.
A.
Medical History3
Plaintiff was born on August 12, 1962, and was forty-five
years old on the date of the alleged onset of disability.4
Plaintiff
completed
the
eighth
Equivalency Diploma in 1986.5
grade
and
earned
a
General
Plaintiff worked as a waitress,
cashier, and bartender until July 1, 2008.6
Plaintiff’s left, non-
dominant arm was amputated in 1983 due to complications arising
from intravenous drug use.7
Between 2006 and 2010, Plaintiff
suffered from back and hip pain, gastrointestinal issues, asthma,
depression, hypertension, and carpal tunnel syndrome.
1.
Back and Hip Pain
On October 21, 2008, Plaintiff visited Murali Angirekula,
M.D., (“Dr. Angirekula”) at the Citrus Pain Clinic, primarily for
3
In order to qualify for benefits, a plaintiff must establish that she
became disabled prior to the last date 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 from July 1, 2008, through December 31, 2008. See Tr. of
the Admin Proceedings (“Tr.”) 9, 42, 122, 124. Because of these limitations, the
court confines its review of the medical record to evidence that bears upon
Plaintiff’s ability to work between July 1, 2008, and December 31, 2008.
4
See Tr. 175, 196.
5
See Tr. 179, 224.
6
See Tr. 176.
7
See Tr. 236, 468.
2
back and hip pain.8
Dr. Angirekula recorded that Plaintiff weighed
254 pounds, was comfortable at rest, and that her gait was normal.9
However, Plaintiff complained that getting up from a chair or
moving to a prone or supine position was very uncomfortable.10
Dr.
Angirekula also noted tenderness to palpitation in Plaintiff’s
lumbar region.11 Dr. Angirekula indicated that Plaintiff was taking
Tramadol for pain.
After taking an x-ray as part of the same examination, Dr.
Angirekula found that Plaintiff had “mild degenerative disc space
narrowing
and
facet
hypertrophic
changes.”12
Plaintiff
also
complained that Tramadol did not sufficiently relieve her pain,
because her pain remained at a moderate level when she was at
rest.13
As a result, Dr. Angirekula changed her medication from
Tramadol to Darvocet and suggested facet joint injections.14
About
fifteen minutes after receiving the injections, Plaintiff reported
a fifty-percent improvement in the pain.15
On November 20, 2008, Plaintiff visited Dr. Angirekula, again
8
See Tr. 459.
9
See Tr. 452.
10
See id.
11
See id.
12
Tr. 451.
13
See id.
14
See Tr. 453.
15
See Tr. 454.
3
for back pain.16
In this examination, Plaintiff said that her back
pain had improved, but that Darvocet made her feel jittery.17
Plaintiff also reported that there were no other changes to her
health, medication, or allergies.18 Dr. Angirekula again noted that
Plaintiff was comfortable at rest and that her gait was normal.19
He observed that Plaintiff’s getting up from a chair or moving to
a prone or supine position was only mildly uncomfortable.20
Dr.
Angirekula changed her medication from Darvocet to Tylenol #4 and
suggested a caudal epidural steroid injection to help improve her
back
pain.21
The
injections
took
place
that
day
with
no
complications.22
Plaintiff returned to the clinic on January 2, 2009.23 At this
visit, she was in tears due to pain in her left hip.24
that she had fallen on two separate occasions.25
She said
She stated that
she had not experienced any significant back pain or changes to her
16
See Tr. 546.
17
See id.
18
See id.
19
See id.
20
See id.
21
See Tr. 546-47.
22
See Tr. 547.
23
See Tr. 541.
24
See id.
25
See id.
4
health,
medication,
allergies.26
or
In
his
examination,
Dr.
Angirekula noted that Plaintiff was in severe discomfort both at
rest and with movement.27
In response, Dr. Angirekula changed her
medication from Tylenol #4 to Lortab.28
Plaintiff’s next visit to Dr. Angirekula was on March 19,
2009.29
Dr. Angirekula noted that Plaintiff recently had an upper
gastrointestinal endoscopy and was told she had gastritis and to
avoid taking anti-inflammatory medications.30 Dr. Angirekula noted
that Plaintiff’s back pain was fairly well-controlled and that she
could cope with the pain during her day-to-day activities.31
Furthermore,
she
was
comfortable
at
rest
and
her
gait
was
comfortable when she walked in and out of the examination room.32
Dr. Angirekula mentioned that the injections had caused weight gain
and Plaintiff had to be stricter with her diet.33
2.
Gastrointestinal Issues
On November 17, 2008, Plaintiff visited a doctor at the
Beverly
Hills
Medical
26
See id.
28
See Tr. 542.
29
See Tr. 538.
30
See id.
31
See id.
32
See id.
33
who
See id.
27
Center
See id.
5
noted
that
Plaintiff
had
epigastric pain.34 On November 20, 2008, Plaintiff visited Johannes
Martensson,
M.D.,
complaining
of
dysphagia,
heartburn,
and
constipation.35 She received an esophagogastroduodenoscopy (“EGD”)
and colonoscopy on February 11, 2009.36
These two procedures
revealed that Plaintiff had an ulcer, a medium-sized hiatal hernia,
external and internal hemorrhoids, and polyps.37
On March 5, 2009,
and on April 29, 2009, Plaintiff underwent additional testing.38
These tests determined that Plaintiff’s ulcers had healed and the
polyps were benign, but a hiatal hernia remained.39
3.
Other Ailments
Plaintiff has suffered from asthma since her childhood.40
At
the time of the alleged onset of disability, Plaintiff’s asthma
symptoms were treated with Albuterol.41
Although Plaintiff smoked
a pack of cigarettes a day, pulmonary examinations were within
normal limits.42
Furthermore, Plaintiff indicated that she was not
experiencing shortness of breath, coughing, or wheezing on the last
34
See Tr. 298.
35
See Tr. 245.
36
See Tr. 243, 294.
37
See Tr. 243-44.
38
See Tr. 240-242.
39
See id.
40
See Tr. 468.
41
See Tr. 236.
42
See Tr. 236, 245, 296, 298.
6
date insured.43
In addition, Plaintiff has a history of hypertension.44 This
condition was treated with Atenolol, and her blood pressure was
found to be stable on October 16, November 17, and December 17,
2008.45
At a doctor’s appointment on December 31, 2008, her blood
pressure was slightly elevated.46
On November 29, 2006, Plaintiff was diagnosed with major
depressive disorder after complaining of depression, low energy,
difficulty concentrating, and trouble sleeping.47
At this visit,
Plaintiff was prescribed Paxil and Ambien, but she stopped taking
Paxil at some time before the date of the alleged onset of
disability.48 The record contains no further mention of Plaintiff’s
making any complaint of these symptoms until July 6, 2010.49
Also,
on an undeterminable date, Plaintiff was diagnosed with anxiety and
prescribed Clonazepam.50
However, the record contains no further
mention of anxiety-related symptoms.51
43
See Tr. 294.
44
See Tr. 236.
45
See Tr. 245, 296, 298.
46
See Tr. 294.
47
See Tr. 335.
48
See Tr. 335, 451.
49
See Tr. 475.
50
See Tr. 236, 302.
51
See Tr. 236, 294, 296, 298, 298, 300, 546.
7
On May 8, 2008, Plaintiff was diagnosed with moderate right
carpal tunnel syndrome, which affected her sensory components in
that hand.52
As a result of this diagnosis, Plaintiff underwent
right carpal tunnel release surgery on June 11, 2008.53
After
surgery, Plaintiff visited Dr. Angirekula on October 21, 2008, and
reported experiencing no pain or numbness in her right arm.54
B.
Application to Social Security Administration
Plaintiff filed for disability insurance benefits on December
7, 2009, claiming an inability to work due to rheumatoid arthritis,
degenerative joint disease, and high blood pressure.55
In
a
disability
report
completed
near
the
time
of
her
application, Plaintiff stated that she was five-feet-five-inches
tall
and
weighed
243
pounds.56
She
stated
that
her
medical
conditions prevented her from sitting or standing for long periods
of time, bending, or lifting.57
In explaining why she stopped
working, Plaintiff only stated, “my condition.”58
Her medications
at the time were Atenolol, Clonazepam, Hydrochlorothiazide, Lortab,
52
See Tr. 381.
53
See Tr. 354-55.
54
See Tr. 552.
55
See Tr. 171, 175.
56
See Tr. 174.
57
See Tr. 175.
58
Tr. 175.
8
and Zolpidem.59
She reported that both the Clonazepam and Lortab
caused dizziness.60
Plaintiff stated that her daily activities included feeding
and walking her dog, maintaining her personal hygiene, taking
medications, preparing simple meals with some help, cleaning, going
outside, doing the laundry, reading, watching television, talking
on the phone, and grocery shopping as needed.61
According to the
report, she could also walk, sit, and stand, for limited periods of
time, manage money, and drive.62 Plaintiff stated that she required
assistance getting out of the bathtub, cooking, folding and hanging
clothes, vacuuming, and cleaning the bathroom.63
In a separate, undated disability report, Plaintiff added that
her condition had worsened and she was depressed.64
She indicated
that her new illnesses included, “disease, headaches, anxiety,
[and] depression.”65
A physical residual functional capacity report (“RFC”) was
completed by Randal Reid, M.D., (“Dr. Reid”) on January 20, 2010.66
59
Tr. 178.
60
See id.
61
See Tr. 190-94.
62
See Tr. 192-94.
63
See Tr. 190-91.
64
See Tr. 202.
65
Id.
66
See Tr. 315-22.
9
Dr. Reid found that Plaintiff could occasionally lift fifty pounds,
frequently lift twenty-five pounds, stand or walk for about six
hours in an eight-hour workday, sit for about six hours in an
eight-hour workday, and push or pull without restriction.67
Dr.
Reid further noted that there were no other limitations and the
limitations listed were the result of a left arm amputation below
the elbow and mild degenerative disc disease.68
Plaintiff’s
application
reconsideration levels.69
administrative
law
was
denied
at
the
initial
and
Plaintiff requested a hearing before an
judge
(“ALJ”)
of
the
Social
Security
Administration.70 The ALJ granted Plaintiff’s request and conducted
a hearing on September 20, 2010.71
C.
Hearing
Plaintiff, Frank L. Barnes, M.D., (“Dr. Barnes”), a medical
expert, and Herman Litt, a vocational expert (“VE”), testified at
the hearing.
Plaintiff testified that she lost her job as a bartender
because she was unable to stand through her entire shift.72
67
See Tr. 316.
68
See 316-22.
69
See Tr. 85, 98.
70
See Tr. 99-100.
71
See Tr. 51, 101-26.
72
Tr. 58.
10
She
also testified that she was unable to sit for long periods, but
that her bartending job did not allow sitting.73
She stated that
she had hip pain and that a doctor had advised her to consider a
hip replacement.74
She further stated that she recently had been
prescribed a cane to help relieve pressure on her hip.75
She
related that she suffered from back pain, cramps in her right foot
stemming from an operation in 1986, and difficulty breathing during
the day.76
She testified that her right-hand fingers would go numb,
preventing her from using buttons or shoelaces.77
She stated that
a doctor had suggested an x-ray be taken, but that one had not yet
been performed.78 She reported that she began taking medication for
bipolar disorder about three weeks before the hearing.79
She
disclosed that she weighed 235 pounds, which was thirty-five pounds
less than she weighed nine months earlier.80
Plaintiff stated that, during the course of a normal day, she
dusted, did laundry, watched television, read books, and took care
73
Tr. 59.
74
See Tr. 61-62.
75
Tr. 67.
76
Tr. 63, 66-67.
77
Tr. 65.
78
Id.
79
Tr. 68.
80
See Tr. 56, 61.
11
of her hygiene, but her roommate prepared meals.81
With regard to
her physical abilities, Plaintiff reported that she could not lift
more than five pounds, could not bend too much, and needed to sleep
one to two hours in the afternoon.82
Having
reviewed
the
record
and
having
heard
Plaintiff’s
testimony, Dr. Barnes identified her impairments to be lumbar
degenerative joint disease, post-surgical recovery from carpal
tunnel release, initial-stage peptic ulcer disease, and asthma.83
He stated that the combination of these impairments would not meet
or equal any Listing.84
Dr. Barnes also determined that Plaintiff
was impaired by not having a left hand.85
Dr. Barnes found that
Plaintiff could sit for eight hours a day, stand for two to three
hours a day, occasionally lift and carry ten pounds with her right
hand, frequently lift five pounds, push and pull with the same
weight limits as lifting, stoop and bend occasionally, and reach
without limitations.86
He further stated that she would need to
work in an indoor environment controlled for dust and toxins due to
her asthma.87
He noted that, while Plaintiff complained of hip
81
See Tr. 58, 60-61.
82
Tr. 58, 65, 68.
83
Tr. 70.
84
Tr. 70; 20 C.F.R. Pt. 404, Subpt. P, App. 1. (the “Listings”)
85
Tr. 71.
86
Tr. 71-72.
87
Tr. 72-73.
12
problems, the only x-rays taken of her hip were performed in 2010.
He explained that these x-rays showed arthritis, but that he could
not determine the hip’s condition on the last date insured,
December 31, 2008.88
Based
on
his
review
of
the
record,
the
VE
categorized
Plaintiff’s prior work as a waitress and bartender as semi-skilled
and light and cashier as light and unskilled.89
The ALJ asked if
the skills from these jobs would transfer to any sedentary jobs,
and the VE responded that only the skills from the cashier position
would be transferrable.90
The ALJ then asked the VE if Plaintiff
could perform any past relevant work, given Dr. Barnes’ testimony.91
The VE responded that Plaintiff would not be able to perform any
past relevant work.92
The ALJ asked the VE about vocational opportunities for a
hypothetical individual who had the same vocational profile as
Plaintiff, the same age, education, past relevant work experience,
and the same limitations indicated by the testimony of Dr. Barnes.93
The
VE
responded
88
Tr. 78.
91
Id.
92
Id.
93
a
Tr. 77-78
90
such
Tr. 73.
89
that
Tr. 78-79.
13
person
could
be
employed
as
surveillance monitor, order clerk, or cashier.94
Plaintiff’s
attorney
questioned
whether
a
hypothetical
individual who has lost use of the left, non-dominant hand and
could not perform fine, manual manipulation with the right hand
could work as a cashier.95
The VE responded in the negative.96
The
VE also testified that if the hypothetical individual had to lay
down for one to two hours in an eight-hour workday that his person
would not be able to perform any job in the national economy.97
D.
Commissioner’s Decision
On
September
decision.98
28,
2010,
the
ALJ
issued
an
unfavorable
The ALJ found that Plaintiff had not engaged in
substantial gainful activity during the relevant period and that
she had multiple impairments (amputated arm below the left elbow,
lumbar degenerative disc disease, asthma, gastroesophageal reflux
disease, hypertension, and obesity) that were severe.99 Plaintiff’s
severe impairments, individually or collectively, did not meet or
medically equal any Listing, according to the ALJ.100
94
Tr. 79-80.
95
Tr. 80.
96
Id.
97
Tr. 81.
98
Tr. 37.
99
See Tr. 42
100
See Tr. 45.
14
In determining Plaintiff’s RFC, the ALJ considered Plaintiff’s
medical record and Dr. Barnes’ opinion.101
The ALJ found Plaintiff
capable of performing jobs existing in significant numbers with the
following limitations: lift, carry, push, and pull no more than ten
pounds occasionally and no more than five pounds frequently with
the dominant right arm; sit (with normal breaks) for a total of
eight hours in an eight-hour workday; stand and/or walk (with
normal breaks) for a total of two to three hours in an eight-hour
workday; stoop and bend occasionally; and in an indoor environment,
controlled for dust and toxins.102
Although the ALJ found that Plaintiff’s medically determinable
impairments could cause her claimed symptoms, the ALJ did not find
Plaintiff’s “statements concerning the intensity, persistence and
limiting effects of these symptoms” to be credible to the extent
they were inconsistent with the ALJ’s RFC determination.103 Relying
on
the
VE’s
testimony
that
a
hypothetical
individual
with
Plaintiff’s limitations could not perform her past relevant work,
but could perform work that existed in significant numbers in the
national economy, the ALJ found Plaintiff not to be disabled.104
Plaintiff appealed the ALJ’s decision, and the Appeals Council
101
See id.
102
See Tr. 46.
103
Tr. 47.
104
See Tr. 48-49.
15
denied Plaintiff’s request for review, thereby transforming the
ALJ’s decision into the final decision of the Commissioner.105
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. Waters v. Barnhart, 276 F.3d 716, 718 (5th Cir. 2002).
A.
Legal Standard
In order to obtain disability benefits, a claimant bears the
ultimate burden of proving she is disabled within the meaning of
the Act.
Wren v. Sullivan, 925 F.2d 123, 125 (5th Cir. 1991).
Under the applicable legal standard, a claimant is disabled if she
is unable “to engage in any substantial gainful activity by reason
of any medically determinable physical or mental impairment. . .
which has lasted or can be expected to last for a continuous period
of not less than twelve months.”
42 U.S.C. § 423(d)(1)(a); see
also Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994).
The
existence of such a disabling impairment must be demonstrated by
“medically acceptable clinical and laboratory diagnostic” findings.
42 U.S.C. § 423(d)(3), (d)(5)(A); see also Jones v. Heckler, 702
105
See Tr. 1-5, 32.
16
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.
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 finding that the claimant is disabled
or not disabled. Greenspan, 38 F.3d at 236.
B.
Substantial Evidence
The widely accepted definition of “substantial evidence” is
17
“that quantum of relevant evidence that a reasonable mind might
accept as adequate to support a conclusion.”
F.3d 131, 135 (5th Cir. 2000).
Carey v. Apfel, 230
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 finding 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.
1988).
Johnson v. Bowen, 864 F.2d 340, 343-44 (5th Cir.
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.
Cir. 1999).
Brown v. Apfel, 192 F.3d 492, 496 (5th
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. Specifically, Plaintiff asserts that the
ALJ’s decision contains the following errors: (1) the ALJ erred in
finding Plaintiff’s combination of depression and anxiety not to be
18
severe; (2) the medical expert erred in not including all of
Plaintiff’s
impairments in his testimony; (3) the ALJ erred in
giving weight to the testimony of the vocational expert because the
expert failed to consider Plaintiff’s amputated left arm.106
Defendant argues that the decision is legally sound and is
supported by substantial evidence.
A.
Severity of Depression and Anxiety
Plaintiff argues that the record continuously references both
depression and anxiety, and Plaintiff’s lack of treatment for these
conditions between the alleged onset of disability, July 1, 2008,
and the last date insured, December 31, 2008, only represents a
temporary lull in those conditions.
Plaintiff also argues that
there
the
existed
benefits.
related
symptoms
at
time
she
applied
for
Plaintiff contends that, as a result of these factors,
the ALJ should have determined Plaintiff’s mental impairments to be
severe.
Additionally,
Plaintiff
claims
that
“the
ALJ
must
determine the extent to which the mental impairment accounts for
the claimant’s subjective complaints,” citing to Latham v. Shalala,
106
Plaintiff also states that the ALJ was required to consider
Plaintiff’s ability to sustain employment, citing to Singletary v. Bowen, 798
F.2d 818 (5th Cir. 1986). There, a man was able to gain employment, but could not
sustain employment due to a mental condition. Id. However, a later case, Frank
v. Barnhart, 326 F.3d 618, 621 (5th Cir. 2003), determined that this analysis was
only necessary if the facts showed a condition that “waxed and waned” that
prevented a plaintiff from sustaining employment. Plaintiff has failed to
identify any facts indicating a condition which waxed and waned that prevented
Plaintiff from sustaining employment.
19
36 F.3d 482 (5th Cir. 1994).107
Defendant responds by noting that the record indicates that
Plaintiff sought medical help for her depression on only two
occasions, once in 2006 and again in 2010, and that both times are
outside the relevant time period. Further, Defendant stresses that
most mentions of depression in the record are in reference to
Plaintiff’s 2006 hospital visit.
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)(iii),
(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),
416.92(a).
20 C.F.R. §§
Basic
work
activities are those abilities and aptitudes required for most
jobs,
including
walking,
sitting,
seeing,
understanding and carrying out simple instructions.
hearing,
and
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
107
Doc. 17, Pl.’s Mot. For Summ J. p. 5. Plaintiff mischaracterizes
Latham. There, the Fifth Circuit held that, “when medical findings do not
substantiate the existence of physical impairments capable of producing alleged
pain and other symptoms, the ALJ must investigate the possibility that a mental
impairment is the basis of the symptoms.” Latham, 36 F.3d at 484.
20
work experience.”
Herrera v. Comm’r of Soc. Sec., 406 F. App’x
899, 902 n.1 (5th Cir. 2010) (unpublished) (quoting Loza v. Apfel,
219 F.3d 378, 391 (5th Cir. 2000)).
The ALJ acknowledged that Plaintiff had been diagnosed with
and received treatment for depression but found that it did not
significantly limit Plaintiff’s ability to perform work-related
activities.108
The record supports this conclusion.
Plaintiff was first diagnosed with and treated for depression
in November 2006.109
Ambien.110
On
the
At that visit, she was prescribed Paxil and
date
of
the
alleged
Plaintiff was taking Ambien but not Paxil.111
onset
of
disability,
From the date of the
alleged onset of disability through the last date insured, the
record indicates that Plaintiff made no complaints to a doctor of
any
depression-related
symptom.112
Furthermore,
the
record
indicates that Plaintiff did not see a doctor for depressionrelated symptoms again until 2010.113
Similarly, while Plaintiff
was diagnosed with anxiety, the record contains no mention during
the relevant period of any anxiety-related symptom.114
108
See Tr. 44.
109
See Tr. 335.
110
See id.
111
See Tr. 335, 451.
112
See Tr. 236, 294, 296, 298, 300, 546.
113
See Tr. 475.
114
See Tr. 236, 294, 296, 298, 300, 546.
21
Although
Plaintiff
claimed
that
she
suffered
from
both
depression and anxiety, there is no record evidence of her making
complaints of relevant symptoms to a doctor during the relevant
time
period
or
of
resulting
functional
limitations.
Absent
evidence of a significant limitation in Plaintiff’s ability to
perform work-related activities due to depression, anxiety, or a
combination of both, the court finds that the ALJ’s determination
is supported by the record.
B.
Inclusion of All Impairments
Plaintiff contends that regardless of whether her mental
health
issues
were
considered
severe,
they
should
have
regarded as an impairment for the purposes of her RFC.
also
contends
manipulation
in
that
she
her
did
right
not
hand
have
and
the
this
ability
impairment
been
Plaintiff
of
fine
was
not
considered in the RFC.
Defendant responds that Dr. Barnes did not take mental health
impairments into account when formulating Plaintiff’s RFC because
the record contained no mention of related symptoms during the
relevant time period.
In determining the RFC, the ALJ is required to include any
impairment, even those that are not severe, that will affect what
the
Plaintiff
can
404.1545(a)(1), (e).
do
in
a
work
setting.
See
C.F.R
§
The RFC represents the most that a Plaintiff
can do despite any limitations. C.F.R. § 404.1545(a). Further, the
22
Fifth Circuit has held that, “a person's ‘residual functional
capacity’ is determined by combining a medical assessment of an
applicant's
impairments
with
descriptions
by
physicians,
the
applicant, or others of any limitations on the applicant's ability
to work.” Hollis v. Bowen, 837 F.2d 1378, 1386-87 (5th Cir. 1988).
Hollis
v.
Bowen
also
holds
that
impairments
in
Plaintiff’s
testimony can be excluded from the list of impairments if there is
no other evidence to corroborate that testimony.
See Hollis, 837
F.2d at 1387.
When asked about the effect of her illnesses, injuries, or
conditions in her disability report, Plaintiff listed only physical
limitations.115
Further, the record indicates that Plaintiff did
not complain of mental limitations at any doctor’s appointment
during the relevant period or at the hearing before the ALJ.116
Moreover, her attorney did not include any mental limitations in
his proposed hypothetical to the VE.117
After her June 2008 surgery, Plaintiff did not complain of
pain or numbness in her right hand until her hearing testimony
where she stated that she had trouble manipulating buttons and
laces.118
At an October 21, 2008 doctor’s appointment, Plaintiff
115
See Tr. 175.
116
See Tr. 55-69, 236, 294, 296, 298, 300, 546.
117
See Tr. 80.
118
See Tr. 60, 236, 294, 296, 298, 300, 546.
23
was given a picture of the human body and asked to shade wherever
she had pain or numbness and she did not shade any part of her arm
or hand.119
Absent evidence of any limitations in Plaintiff’s use of her
right arm or resulting from a mental impairment during the relevant
time period, the court finds the ALJ’s RFC determination to be
supported by substantial evidence.
C.
Inclusion of Plaintiff’s Amputated Left Arm in the VE’s
Testimony
Plaintiff argues that it is not clear whether the VE accounted
for Plaintiff’s amputation.
During his testimony, Dr. Barnes was
instructed to list Plaintiff’s medical conditions from July 1, 2008
to December 31, 2008.120
In his response, he failed to mention
Plaintiff’s left-arm amputation.121
included
Plaintiff’s
amputation
However, Dr. Barnes later
when
he
responded
questions about Plaintiff’s physical limitations.122
to
other
During his
testimony, the VE was asked to include in his assessment only the
limitations listed by Dr. Barnes. Plaintiff contends that the jobs
suggested by the VE, cashier, surveillance monitor, and order
clerk, all require two hands, indicating that the VE failed to
consider Plaintiff’s amputation.
119
See Tr. 552.
120
See Tr. 70.
121
See id.
122
See Tr. 71.
24
The Fifth Circuit has instructed that, in determining the
validity of the hypothetical question given to the vocational
expert:
Unless the hypothetical question posed to the vocational
expert by the ALJ can be said to incorporate reasonably
all disabilities of the claimant recognized by the ALJ,
and the claimant or his representative is afforded the
opportunity to correct deficiencies in the ALJ's question
by mentioning or suggesting to the vocational expert any
purported
defects
in
the
hypothetical
questions
(including additional disabilities not recognized by the
ALJ's findings and disabilities recognized but omitted
from the question), a determination of non-disability
based on such a defective question cannot stand.
Bowling v. Shalala, 36 F.3d 431, 436 (5th Cir. 1994).
However, the Fifth Circuit has made clear that:
claimants should not be permitted to scan the record for
implied or unexplained conflicts between the specific
testimony of an expert witness and the voluminous
provisions of the DOT, and then present that conflict as
reversible error, when the conflict was not deemed
sufficient to merit adversarial development in the
administrative hearing.
Carey, 230 F.3d at 146-47.
Dr. Barnes referenced the left-arm amputation when discussing
Plaintiff’s physical limitations and did so in the presence of the
VE. Several minutes later the VE was asked to include those
limitations in his assessment.
The record supports a conclusion
that the VE factored Plaintiff’s amputation into his assessment.
Moreover, Plaintiff failed to raise any question that the
left-arm amputation would affect her ability to perform these jobs
at the hearing. Finally, Plaintiff fails to explain why these jobs
25
require the use of two hands.
The court notes that Plaintiff was
able to use a cash register for many years after her left-hand
amputation. Accordingly, the court finds that the testimony of the
VE contained no deficiencies.
Finding no legal error in the ALJ’s decision and finding that
substantial record evidence supports the 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 Motion for Summary
Judgment.
SIGNED in Houston, Texas, this 10th day of June, 2014.
26
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