Goyens v. Astrue

Filing 10

MEMORANDUM AND ORDER. The Court DENIES Goyens' Motion for Summary Judgment and GRANTS the Commissioner's Motion for Summary Judgment. (Signed by Magistrate Judge George C. Hanks, Jr) Parties notified.(jegonzalez, 4)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
MELISSA GOYENS,

Plaintiff,

v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security Administration

Defendant.

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CIVIL ACTION NO. 4:13-CV-00419

MEMORANDUM AND ORDER
In this case seeking judicial review of denial of Social Security benefits, Plaintiff
Melissa Goyens ("Goyens") filed a Motion for Summary Judgment pursuant to 42 U.S.C.
§ 405(g).

Dkt. 7.

Defendant Carolyn W. Colvin ("Commissioner"), Acting

Commissioner of Social Security, filed her own Motion for Summary Judgment and Brief
in Support.

Dkt. 9.

The parties have consented to have this Court conduct all

proceedings, pursuant to 28 U.S.c. § 636(c). Having considered the parties' briefing, the
applicable legal authorities, and all matters of record, the Court orders that Goyens'
motion be DENIED and summary judgment be GRANTED for the Commissioner.
I.

BACKGROUND
Goyens is a 38-year-old woman with a high school education and two years of

college. Tr. 73, 133, 794. Goyens has worked in various jobs, including as a data entry

clerk, an administrative assistant, a customer service/sales representative, and as a cashier
and stocker in a bookstore. Tr. 32, 67, 161.

A.

Goyens' Medical Records
1. Physical Complaints

Goyens' relevant medical records date back to December 14, 2005, when she
complained of bilateral shoulder pain and anxiety. Tr. 310-314. Shortly afterwards, on
January 2, 2006, Goyens was hospitalized at San Jacinto Methodist Hospital for a suicide
attempt in which she overdosed on medications.

Tr. 239, 293, 460.

During 2006,

Goyens saw several physicians, complaining of fatigue, insomnia, and chronic pain. Tr.
318-341.
In mid-June 2007, Goyens began visiting the Baytown Clinic of the Harris County
Hospital District ("Baytown Clinic"). Tr. 298-307. Goyens self-reported a number of
ailments, including fibromyalgia and consistent pain.

Tr. 300.

In August 2007, a

physical examination was normal. Tr. 301-304.
Eight months later, in April 2008, Goyens again returned to Baytown Clinic,
complaining of pain. Tr. 304. Goyens reported that she had not taken her prescribed
medications for several months because "she did not like the way they made her feel."
Tr. 37-38, 304. Goyens was referred to Dr. Johnathan S. Forester. At her first visit with
Dr. Forester, Goyens reported an insect bite in May 1995 and stated that she was being
treated for fibromyalgia.

Tr. 481-483, 507-511, 784.

Goyens was positive for Lyme IgG.

The laboratory tests showed

Tr. 495, 499-500, 505, 583.

Forester prescribed over ten medications for Goyens. Tr. 480, 484-488.
2

Accordingly, Dr.

ii

In 2009, Goyens continued her treatment with Dr. Forester, but stopped when his
office no longer accepted her insurance. Tr. 39, 307-311. On March 30, 2009, Goyens
saw another doctor for multiple complaints relating to her Lyme Disease. Tr. 39, 307311. The laboratory tests from that day were normal. Tr. 39, 310. In July 2009, Goyens
began seeing Dr. Patricia D. Salvato, complaining of pain, fatigue, cognitive difficulties,
anxiety, bipolar disorder, and Lyme disease. Tr. 39, 560-562. In June 2010, Dr. Salvato
ordered several tests that showed that Goyens was negative for Lyme disease but that she
was allergic to several substances. Tr. 43.
After September 7, 2010, the record does not reflect any medical treatment for
Goyens' physical complaints. Tr. 43, see also Transcript Index.

2. Mental Health
From March 2009 to April 2011, Goyens visited three mental health care doctors.
Tr. 45, 467,516,619. Between March 2, 2009, and October 5,2009, Dr. Rita Cowen
treated Goyens for bipolar disorder. Tr. 45, 467-471. During that time, Goyens also saw
Dr. Athi P. Vekatesh for mood swings. Tr. 45, 378, 619-789. From May 12, 2010 to
April 27, 2011, Goyens sought treatment from Dr. Richard Noel. Tr.516-529. Dr. Noel
treated Goyens by adjusting her prescribed medications. Tr. 517-518.

B.

Application for Benefits
On May 26, 2010, Goyens filed an application for Social Security disability

benefits, alleging that she had become disabled as of December 31, 2007. Goyens listed
several conditions, including Lyme Disease, arthritis, fibromyalgia, chronic fatigue,

3

irritable bowel syndrome, chronic pam, a thyroid disorder, anxiety, pamc attacks,
depression, and bipolar disorder. Tr.20, 122-125, 146, 133.
Goyens was seen by Dr. Kathleen Senior for a consultative psychological
examination on September 13, 2010. Tr. 813. Dr. Senior described Goyens' mental
activity was "coherent," but "mildly slowed." Tr. 814. Dr. Senior also described Goyens
as fully oriented, with intact remote memory and fair recent memory.

Dr. Senior

assessed Goyens' immediate memory as "Low Average" and stated that Goyens had
intact concentration, fully present abstraction, and that her insight was "fair."

She

reported Goyens' activities of daily living as including a limited range of household
chores, noting that she lives with her husband and children although Goyens had admitted
that she was not "really together" with her husband, and she had only married him for
health insurance.

Tr. 813, 815. Dr. Senior assessed Goyens' Global Assessment of

Functioning ("GAF") score at 55 and ranked her prognosis as "fair." Tr.815.
On October 4, 2010, Dr. Veene Ghai reviewed Goyens' medical records and
completed a Psychiatric Review Technique form.

Tr. 816. Dr. Ghai determined that

Goyens suffered from bipolar disorder, panic disorder, and polysubstance abuse. Tr. 819,
821, 824. Dr. Ghai also opined that Goyens' impairments caused moderate restriction of
activities of daily living; moderate difficulties in maintaining social functioning;
moderate difficulties in maintaining concentration, persistence, or pace; and no episodes
of decompensation. Tr. 826. Dr. Ghai concluded that Goyens' mental impairments were
"more than non-severe but do not meet/equal listing." Tr. 828. Dr. Ghai also stated that

4

Goyens' allegations were "supported by [medical records] but limitations are not; clmt. is
partially credible." Jd.
Dr. Ghai also completed a Mental Residual Functional Capacity evaluation based
on Goyens' medical records. Tr. 830. Dr. Ghai opined that Goyens was "markedly
limited" in the ability to understand and remember detailed instructions, and the ability to
carry out detailed instructions.

Tr. 830.

Dr. Ghai concluded that Goyens was

"moderately limited" in several areas, most notably in areas of sustained concentration
and persistence and social interaction. Tr. 830, 831. Dr. Ghai also found Goyens was
"moderately limited" in her ability to respond appropriately to changes in the work
setting. Tr. 831. Dr. Ghai concluded that Goyens could "understand, remember and
carry out only simple instructions, make simple decisions, attend and concentrate for
adequate periods, interact adequately with co-workers and supervisors and respond
appropriately to changes in routine work setting." Tr. 832.
On October 15, 2010, Dr. Kelvin Samaratunga completed a Physical Residual
Functional Capacity Assessment form. Tr. 834-841. Dr. Samaratunga noted Goyens'
primary diagnosis of Lyme disease, fatigue and fibromyalgia, but nonetheless opined that
she could perform the full range of light work: i.e., could lift and/or carry twenty pounds
occasionally and ten pounds frequently, stand and/or walk six hours in an eight-hour
workday, and sit six hours in an eight-hour workday. Tr. 835. He also rated her ability to
push and/or pull as "unlimited." Jd. Similarly, Dr. Samaratunga did not find that Goyens
had any postural, manipulative, visual, communicative or environmental limitations. Tr.
836-838. He noted that his opinion took Goyens' alleged symptoms of pain and fatigue
5

into account, but he also noted that her most recent lab results were negative for Lyme
disease and that Goyens was reporting less tenderness and pain. Tr. 841. He concluded
that Goyens' allegations were "partially supported by [the evidence] in file; clmt. is
partially credible." Tr. 841.
3. ALJ Hearing and Decision

On November 9, 2011, ALJ John Sullivan held a hearing at which Goyens
appeared, represented by counsel. Tr. 20. Goyens testified at the hearing, as did an
independent vocational expert ("VE"). Tr. 20.
Goyens testified that she became disabled in December 2007. At that time, she
was working as a part-time cashier at a college bookstore but was fired because she
missed approximately two days a week of work. Tr. 56. Goyens also testified that she
could not stand for the long periods of time that the job required. Tr. 57.
Goyens described her diagnosis, symptoms, and treatment of Lyme Disease. Tr.
59. Goyens testified that she stopped taking her prescribed medication because, "I didn't
like taking the pain medicine.

They made me feel funny."

Tr. 60.

Goyens then

described the home remedy treatments she used instead to ease her pain. Tr. 60. Goyens
testifies that she does take four medications, prescribed by Dr. Noel, to treat her bipolar
and depression. Tr. 63.
Goyens stated that she is only able to stand for about fives minutes, and that her
husband does most of the household chores. Tr. 61-62. Goyens also stated her ability to
lift and carry objects is very limited and that her "hands start hurting if [she] tr[ies] to put
makeup on or brush her hair." Tr. 63. Goyens testified that, because of her impairments,
6

she spends most of her days lying on the couch, usmg the Internet-specifically,
Facebook. Tr. 64, 154. Goyens also alleges that her impairments took such a toll that
she "can't read anymore" and that she cannot attend any of her son's football games or
participate in activities she used to enjoy. Tr. 64-65.
The VE testified that Goyens worked in several occupations during the relevant
period-as a cashier, repair order clerk, data entry clerk, administrative clerk, daycare
teacher, and general office clerk. Tr. 67. The VE described this as unskilled work,
usually at the light exertional level. Tr. 67. The ALJ asked the VE about the jobs a
person of Goyens' age, experience and education, who was limited to only light work,
could perform. Tr. 68. The VE stated that such a person that could not perform any of
Goyens' past work. Tr. 68. However, the VE stated there are other jobs such a person
would be able to perform, such as office helper, processing clerk, production assembler,
and bench worker assembler. Tr.69. On cross-examination by Goyens' attorney, the VE
testified that, if such as person did not have frequent use of her hands, she would not be
able to perform at any of the jobs he listed. Tr. 71.
On July 11, 2012, the ALJ issued a decision finding that Goyens' date last insured
was September 30, 2011, and that she was not disabled as of her alleged onset date of
December 31, 2007 through her date last insured. Tr. 33. The ALl first found that
Goyens had not engaged in substantial gainful activity since her alleged onset date. Tr.
23. Next, the ALJ concluded that Goyens' fibromyalgia, bipolar and anxiety disorders
were "severe" impairments. Tr. 23-26. The ALJ specifically noted that Goyens did have
other physical impairments, however, they were all "episodic, with none lasting 12
7

consecutive months or more . . . or they are essentially effects or symptoms of her
fibromyalgia." Tr. 24. Further, the ALl found that Goyens' impairments, singularly or
in combination, did not meet or medically equal the severity of any impairment listed in
20 C.F.R. Part 404, Subpart P, Appendix I. Tr.26-27.1 Next, the ALl found that Goyens
had the residual functional capacity ("RFC") to perform less than the full range of light
work as defined in 20 C.F.R. § 404.1567(b). Tr. 27-31.

Specifically, he found that

Goyens could stand andlor walk for six hours in an eight-hour day, and could lift, carry,
push, and pull 20 pounds occasionally and ten pounds frequently, with normal breaks.
Tr. 27. He listed several non-exertional limitations, including limiting Goyens' exposure
to hazards such as dangerous machinery or exposed heights. Tr.27. Goyens was further
limited to simple, repetitive tasks involving only simple work-related decisions and
relatively few workplace changes.

She was precluded from working in a fast-paced

production environment, and she was limited to only occasional contact with supervisors,
co-workers, and the general public. Tr. 27.
The ALJ found that Goyens was unable to perform her past relevant work through
September 30, 2011, her date last insured. Tr. 31. The ALJ noted, however, that Goyens
was 35 years old on her date last insured, that she had a high school education, and was
able to communicate in English. Accordingly, at step five, the ALl relied on the VE's

1 The ALl's decision listed Goyens' alleged impairments as: bipolar disorder, anxiety, Lyme
disease, arthritis, body pain, chronic fatigue, irritable bowel syndrome, fibromyalgia, muscle
spasms, weakness and twitching, tingling and stabbing sensations, headaches, insomnia, vertigo,
ringing in her ears, blurred vision, nausea, vomiting, diarrhea, weight gain, a mitral valve
prolapse, shortness of breath, night sweats, depression, mood swings, irritability, confusion,
concentration problems, thinking problems, memory loss, a thyroid disorder, digestive problems,
possible neuropathy, panic attacks, and cognitive problems. Tr. 20.

8

testimony to find that Goyens was capable of making a successful adjustment to other
work. Tr. 32-33. The ALJ therefore held that Goyens "was not under a disability, as
defined in the Social Security Act, at any time from December 31, 2007, the alleged onset
date, through September 30,2011, her date last insured." Tr.33.
Goyens requested review by the Appeals Council. The Appeals Council admitted
additional evidence into the record but subsequently denied Goyens' request and upheld
the ALJ's decision. Tr. 3-7. Goyens then filed this action.
Goyens now alleges the ALJ erred in several ways ways. First, she argues the
ALJ erred when determining her RFC because he did not accord proper weight to the
opinions of her treating physicians. Next, she argues the ALJ failed to properly consider
her demeanor at the hearing, and that he did not take into account the obvious pain she
displayed during her testimony. Further, she argues the ALJ did not properly evaluate
her obesity or the side effects caused by her medications. She also contends she satisfied
the Listing descriptions for affective disorders (12.04) and inflammatory arthritis (14.09).
The remainder of her points relate to the ALJ's analysis of whether she could find work,
given her RFC. Goyens contends the ALJ erred by finding there are jobs available in the
national economy that she can perform, and that the ALJ also failed to determine whether
she could maintain employment.
II.

SUMMARY JUDGMENT STANDARD

Rule 56 of the Federal Rules of Civil Procedure mandates the entry of summary
judgment, after adequate time for discovery and upon motion, against a party who fails to
make a sufficient showing of the existence of an element essential to the party's case, and
9

on which that party will bear the burden at trial. Celotex Corp v. Catrett, 477 U.S. 317,
322,106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Little v. Liquid Air Corp., 37 F.3d. 1069,
1075 (5th Cir. 1994).

Summary judgment "should be rendered if the pleadings, the

discovery and disclosure materials on file, and any affidavits show that there is no
genuine issue as to any material fact and that the movant is entitled to judgment as a
matter of law."

FED. R. CIY. P. 56(a); Celotex Corp v. Catrett, 477 U.S. at 322-23;

Weaver v. CCA Indus., Inc. 529 F.3d 335, 339 (5th Cir. 2008). "An issue is material if
its resolution could affect the outcome of the action. A dispute as to a material fact is
genuine if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party."

DIRECTV Inc. v. Robson, 420 F. 3d 532, 536 (5th Cir. 2006)

(internal citations and quotation marks omitted).
III.

STANDARD OF REVIEW
Judicial review of the ALl's final decision under 42 U.S.C. § 405(g) is limited to

determining whether the ALl's decision is supported by substantial evidence in the
record and whether the proper legal standard was used in evaluating the evidence.

Greenspan v. Shalala, 38 F.3d 232,236 (5th Cir. 1994), cert. denied, 514 U.S. 1120, 115
S.Ct. 1984, 131 L.Ed.2d 871 (1995); Anthony v. Sullivan, 954 F.2d 289, 292 (5th Cir.
1992). Substantial evidence is such evidence that a reasonable mind might accept as
adequate to support the decision. Richardson v. Perales, 402 U.s. 389, 401, 91 S.Ct.
1420, 28 L.Ed.2d 842 (1971). The Court must affirm the ALl's final decision where
substantial evidence supports the ALl's decision and the Commissioner followed the
relevant legal standards. See Higginbotham v. Barnhart, 405 F.3d 332, 335 (5th Cir.
10

2005). Reversal is appropriate only where no credible evidentiary choices to support the
Commissioner's decision. See Johnson v. Bowen, 864 P.2d 340, 343-44 (5th Cir. 1988).
In the determination of the claimant's ability to receive disability insurance and
supplemental security income benefits, the Court must scrutinize the record as a whole to
determine if the decision reached was reasonable and supported by substantial evidence.
Higginbotham, 405 F.3d at 335. "'Substantial evidence" means enough evidence "'that a
reasonable mind might accept it as adequate to support a conclusion." Audler v. Astrue,
501 F.3d 446, 447 (5th Cir. 2007). This Court may not reweigh the evidence, try the
issues de novo, or substitute judgment for the Commissioner's finding. Id.
IV.

ANALYSIS

A.

Statutory Basis for Benefits

Social Security disability insurance benefits are authorized by Title II of the Social
Security Act. The disability insurance program provides income to individuals who are
forced into involuntary, premature retirement, provided they are both insured and
disabled, regardless of indigence. See 42 U.S.c. § 423(c) (definition of insured status);
42 U.S.C. § 423(d) (definition of disability).
SSI benefits are authorized by Title XVI of the Social Security Act and provide an
additional resource to the aged, blind, and disabled to assure that their income does not
fall below the poverty line. 20 c.P .R. § 416.110. Eligibility for SSI is based on proof of
disability and indigence. See 42 U.S.C. § 1382(c)(a)(3) (definition of disability); 42
U.S.c. § 1382(a) (financial requirements).

Although these are separate and distinct

programs, applicants to either program must prove "disability" under the Act. See 42
11

U.S.c. § 423( d)(1 )(A) (disability insurance); 42 U.S.C. § 1382(c )(3 )(A) (SSI). The law
and regulations governing the determination of disability are the same for both programs.
Greenspan v. Shalala, 38 F.3d 232,236 (5th Cir. 1994).

B.

Determination of Disability

Under the Social Security Act, a "disability" is defined as the "inability to engage
in any substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12 months."

42 U.S.C.

§ 423( d)(1 )(A). A claimant is disabled "only if his physical or mental impairment or
impairments are of such severity that he is not only unable to do his previous work but
cannot, considering his age, education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy .... " Id. § 423(d)(2)(A).
A "physical or mental impairment" is an anatomical, physiological, or psychological
abnormality demonstrable by acceptable clinical and laboratory diagnostic techniques.
Id.; 42 U.S.C. § 1382c(a)(3)(B).

The five-step "sequential evaluation" process for determining disability is set out
m the Commissioner's regulations.

The steps are: (1) Is the claimant currently

performing substantial gainful activity? (2) Does the claimant have a severe impairment?
(3) Does the impairment meet or equal an impairment listed in Appendix I? (4) Does the
impairment prevent the claimant from doing past relevant work? (5) Does the impairment
prevent the claimant from doing any other work? Audler v. Astrue, 501 F.3d 446,447-48
(5th Cir. 2007) (summarizing C.F.R § 404.1520(a)(4)(i)-(v». If, at any step, the ALJ
12

determines the claimant to be disabled, the determination is conclusive and the inquiry
ends. Id.
The burden of establishing disability rests with the claimant for the first four steps,
and then shifts to the Commissioner to show that there is other substantial work in the
national economy that the claimant is able to perform. Id. The Commissioner's analysis
at steps four and five is based on the assessment of the claimant's RFC, or the work a
claimant still can do despite his or her physical and mental limitations.

Perez v.

Barnhart, 415 F.3d 457, 461-62 (5th Cir. 2005); 20 C.F.R. §§ 404.1545 and 416.945.

The Commissioner assesses the RFC before proceeding from step three to step four. Id.
Once the Commissioner shows that a claimant is able to perform a significant number of
jobs in the national economy, the burden shifts back to the plaintiff to rebut the finding.

Id.

C.

Goyens' Residual Functional Capacity

Many of the issues raised in Goyens' motion for summary judgment relate to the
ALl's determination of her RFC. This term of art refers to an individual's ability to
perform activities despite the limitations imposed by an impairment.

See 20 C.F .R.

§ 404.1545; see also Villa v. Sullivan, 895 F.2d 1019, 1023 (5th Cir. 1990). "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) (citation omitted). The RFC assessment is based on all evidence,
including medical evidence. SSR 96-8p.
13

1. ALJ's Failure to Give Goyens' Treating Physicians Proper Weight
Goyens first contends the ALI erred by failing to give more weight to the opinions
of her treating physicians Dr. Noel, Dr. Salvato, and Dr. Forester. Goyens contends her
physicians' opinions were well-supported and should have been conclusive. Further,
Goyens complains that the ALI relied upon a non-examining physician's opinion instead
of the opinions of her examining physicians. Finally, Goyens argues that the ALl's RFC
findings "directly contradict" her examining physicians' opinions, and thus are not
supported by substantial evidence.
Under the Social Security regulations, a treating physician's opinion about the
nature and severity of a claimant's impairment should receive controlling weight when it
is "well-supported by medically acceptable clinical and laboratory diagnostic techniques
and is not inconsistent with the other substantial evidence in [the] case record."

20

C.F.R. § 404.1527(d)(2); see also Perez v. Barnhart, 415 F.3d 457, 465-66 (5th Cir.
2005). On the other hand, "good cause may permit an ALI to discount the weight of a
treating physician relative to other experts where the treating physician's evidence is
conclusory, is unsupported by medically acceptable clinical, laboratory, or diagnostic
techniques, or is otherwise unsupported by the evidence." Newton v. Apfel, 209 F.3d 448,
456 (5th Cir. 2000).
When weighing medical opinions, the ALI has considerable discretion and is free
to reject the opinion of any physician if the evidence supports a contrary conclusion. 20
C.F.R. §§ 404.1527(d)(2), 416.927(d), (e); Myers v. Apfe 1,238 F.3d 617,621 (5th Cir.
2001). Simply identifying a "treating physician" as the source of a medical opinion will
14

not automatically entitle that opinion to such weight. Rather, the ALJ is free to assign
little or no weight to the opinion of any physician whose statements are brief and
conclusory, not supported by medically acceptable clinical laboratory diagnostic
techniques, or otherwise unsupported by the evidence. Perez, 415 F .3d at 466; Newton,
209 F.3d at 456.

"Consequently, treating physician's opinions are not only not

conclusive in these proceedings, but may be rejected when the evidence supports a
contrary conclusion." Holifield v. Astrue, 402 Fed. App'x. 24, 25, 2010 WL 4560524, 1
(5th Cir. 2010) (citing Martinez v. Chater, 64 F.3d 172, 176 (5th Cir.1995)). Further,
opinions that a patient is "disabled" or "unable to work" are not entitled to any special
significance. 20 C.F.R. § 404.1 527(e)(l). "These determinations are legal conclusions
that the regulation describes as 'reserved to the Commissioner. '" Id.
Substantial record evidence supports the ALl's findings in this case. The ALJ
considered the attorney-generated forms completed by Dr. Noel, on August 27, 2010, Tr.
216-221; Dr. Salvato, on September 7, 2010, Tr. 211-215; and Dr. Forester, on
September 23, 2010, Tr. 222-227. However, the ALI opted to give these "fill-in-theblank" answers little weight because they were unsupported by objective clinical findings
and were inconsistent with the evidence as a whole. Tr. 26-31. The ALJ found the
answers in the forms inconsistent with the record medical evidence and inconsistent with
Goyens' own treatment records. Tr. 26-31.
The record supports the ALl's decision to accord these opinions less weight. Dr.
Noel's answers to the attorney-generated forms were inconsistent with his own treatment
notes. Tr. 26-27, 29-30, 216-221. Goyens saw Dr. Noel from May 12, 2010 through
15

April 27, 2011, and Dr. Noel's mental examination findings were consistently normal.
He never recommended any hospitalization, and he never noted episodes of
decompensation.

Tr. 27, 47, 516-529, 842-871.

However, in the attorney-generated

form, Dr. Noel stated that Goyens experienced three episodes of decompensation. Tr.
220.
Similarly, Dr. Salvato's opinions are also not supported by the medical evidence.
Tr. 27-29, 211-215.

Dr. Salvato opined that Goyens suffered from chronic fatigue

syndrome, but she did not make this diagnosis while she was actually treating Goyens.
Tr. 29, 211, 534-568. Dr. Salvato also opined that Goyens has several extreme physical
limitations, yet, her treatment notes reveal Goyens' several laboratory tests and
examinations were normal. Tr. 534-568, 576-577. The ALJ found that Dr. Salvato's
answers in the generated form seemed to be based on Goyens' own self-reporting of
symptoms rather than actual objective clinical findings. Tr. 29.
Finally, Dr. Forester's opinions were based on only a few months of treatment in
2008 and 2009, and more than a year had passed between the date of Dr. Forester's last
examination of Goyens and the date on which he filled out a form in September 2010.
Tr. 29, 222-227.
Accordingly,

In

light of the inconsistencies that undermine these physicians'

opinions, the ALJ's decision to give little weight to these opinions is not erroneous, and
the ALJ did not err by failing to factor these opinions into his RFC finding.

16

2. ALJ's Failure to Consider Goyens' Demeanor at the Hearing
Next, Goyens contends that her "demeanor" during the ALl hearing should have
been taken into account. Goyens argues that the ALl's failure to note her obvious pain
during the hearing is crucial because her demeanor at this hearing was consistent with her
allegations of disabling symptoms and limitations.
An ALl may consider a claimant's demeanor at the hearing in credibility
determinations. Villa v. Sullivan, 895 F.2d 1019, 1024 (5th Cir. 1990) (holding while
exclusive reliance upon demeanor in credibility determinations is inappropriate, it is not
reversible error for an ALl to consider demeanor as one of several factors in evaluating a
claimant's credibility).

The Fifth Circuit has noted however, "[e]ven if a person's

demeanor can be taken to reflect his degree of pain when that pain is chronic, the issue is
not how much pain [the claimant] suffers when he is at rest ... the relevant question is
how much pain he experiences when trying to work." Lovelace, 813 F.2d at 60 (noting a
claimant's demeanor "sheds little, if any, light on the question of how much pain the
claimant experiences when trying to work. ").
Reviewing the transcript of the hearing, the Court notes that Goyens briefly
referred to being in some amount of pain. Tr. 62. However, the ALl was in the best
position to evaluate and weigh that evidence, and in light of the medical evidence in the
record, the Court finds that the ALl did not err by finding that Goyens' complaints of
pain and self-described limitations were not wholly credible.

17

3. ALJ's Failure to Consider Goyens' Obesity
Ncxt. (Joycns argucs the AL.l crred by

t~liling

to properly evaluate her obesity.

The applicablc regulations require an ALJ to analyze the impact of a claimants' obesity
on their overall ability to work. SSR 02-1 p. 2002 WL 34686281 (September 12. 20(2).
During the relevant period. Goyens wcighcd as much as 254 pounds.

Tr. 299,

432. 549, 658. 728-795. 938-990. At the hearing. she stated that her current weight was
250 pounds and that she is 5'6" tall. 11'. 56. Prior to the hearing. Goyens' representative
submitted a brief alleging only two severe impairments: depression and fibromyalgia.
Nonetheless. the ALI considered other impairments. including Goyens' obesity, in his
analysis. The ALI's decision specifically noted:'[O]besity ... operates as an aggravating
factor with other impairments when deciding the claimant's [RFC].'· Tr. 26.
None of Goycns physicians identified any functional limitations that were caused
by her obesity. Tr. 133. Similarly. Goyens did not testi1y that her obesity caused her any
limitations. and nothing in the record suggests such a conclusion. Tr. 133. Accordingly.
the AL.l did not err bv failing to further limit Goyens' RFC due to her obesity. In tact.
"'"
.",

'-

."

the AL.l assessed a more restricted RFC---lcss than the full range oflight work-than was
suggested by the opinion of Dr. Samaratunga, \vho opined that Goyens could perform the
full range

or light work.

4. Medication Side Effects
Next, Goyens argues that the ALl's RFC failed to consider the side effects of her
multiple prescribed medications.

18

SSR 96-7p requires consideration of the "type, dosage, effectiveness, and side
effects of any medication the individual takes or has taken to alleviate pain or other
symptoms." SSR 96-7p, 1996 WL 374186 (July 2,1996). Further, under SSR 96-8p, an
RFC assessment "must be based on all of the relevant evidence in the case record,"
including the effects of treatment, such as side effects of medication. Id.

The Fifth

Circuit has held that consideration of the side effects of medicines is particularly
important when medications are types that affect the brain, such as anti-depressant and
anti-anxiety drugs.

See Loza v. Apfel, 219 F.3d 378, 381, 394, 397 (5th Cir. 2000)

However, a claimant's subjective complaints must also be corroborated, at least in part,
by objective medical evidence. Eovaldi v. Astrue, 729 F .Supp.2d 848, 861-2 (S.D. Tex.
2010).
Goyens testified that her medications make her drowsy, nauseous, and dizzy, and
that she stopped taking many of her prescribed medications because "they made me feel
funny." Tr. 60. The ALl's opinion expressly considered Goyens' medication and side
effects, and devoted three paragraphs to considering their effects. Tr. 31. The ALJ noted
that Goyens did not self-report any side effects from her fibromyalgia or Lyme Disease
medications. Tr. 31. Significantly, from 2009 to 2010, when completing self-report
forms, Goyens filled in every column except the columns for side effects. Tr. 542-543,
638-639, 644-645, 649-650, 654-655, 656. Further, the medical record does not show
any substantial complaints by Goyens about side effects of her prescribed medications.
To the contrary, Goyens reported that, despite her drowsiness and other side effects, she
was able to watch television and use the Internet and Facebook as well as talk on the
19

phone and visit with friends.

Tr. 64, Tr. 154.

Goyens also reported being able to

perform chores, dress, bathe and drive independently. Tr. 815. Finally, Goyens herself
admits that she does not take all of her medications as prescribed. In light of all of this
evidence, along with the ALl's determination that Goyens' testimony about her
limitations was not wholly credible, the ALl did not err by failing to consider the side
effects of Goyens' prescribed medications when formulating her RFC.

D. Listings 12.04 and 14.09
Goyens also asserts that the ALl's decision is erroneous because her impairments
meet or equal Listing 12.04, which pertains to affective disorders, and Listing 14.09,
which pertains to inflammatory arthritis. At this step, the burden of proof remains on
Goyens to establish that she meets or equals a Listing. Muse v. Sullivan, 925 F.2d 785,
789 (5th Cir. 1991). If a claimant meets a Listing, she will be found disabled regardless
of her age, education, or work experience. 20 CFR § 404.1520( d); see also Bowen v.

Yuckert, 482 U.S. 137, 141, 107 S .Ct. 2287, 96 L.Ed.2d 119 (1987) ("If the impairment
meets or equals one of the listed impairments, the claimant is conclusively presumed to
be disabled.").

A diagnosis alone is insufficient to meet a Listing.

20 C.F.R. §§

404.1525( d) (2011). Instead, "[t]o meet the requirements of a listing, you must have a
medically determinable impairment(s) that satisfies all of the criteria in the listing." Id.
In this case, the medical evidence does not show that Goyens met or equaled any
Listings. The ALJ specifically considered whether Goyens met Listing 12.04, and he
found that her mental impairments were less than Listing-level severity.

Tr. 26-27.

Specifically, the ALJ found that Goyens' mental impairments did not "cause her listing
20

level effects on her life." Tr. 26. Although he noted that Goyens' mental impairments
caused moderate restriction in her activities of daily living, and moderate difficulties in
maintaining social functioning and maintaining concentration, persistence and pace, the
ALl noted that she had no episodes of deterioration and that the criteria of the Listings
were not satisfied because she did not have any documented sustained mental health
treatment. Tr. 26. The ALl also noted that Dr. Noel, whom Goyens saw 12 times
between May 2010 and April 2011, never recommended any hospitalizations or
documented treatment for any episodes of decompensation. Tr. 27.
As for Listing 14.09, there is no evidence or assertion that Goyens ever suffered
from inflammatory arthritis. Tr. 26. She does not point to any documented medical
evidence to support her allegation that the ALl should have considered this Listing, nor
does she point to any evidence that she was diagnosed with inflammatory arthritis or that
she otherwise satisfied any of the criteria for the Listing.
Accordingly, the Court finds that the ALl did not err in finding that Goyens'
impairments, singularly or in combination, did not meet or medically equal the severity
of a Listed impairment.
E. ALJ's Finding of Alternative Employment

Goyens next argues that the ALl erred in finding that a significant number of jobs
existed in the national economy that she could perform. At this step, the Commissioner
bears the burden of proving that a claimant's functional capacity, age, education, and
work experience allow him to perform work in the national economy. See Brown v.
Yuckert, 482 U.S. 137, 146 n.S, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987).
21

If the

Commissioner fulfills this burden by pointing out potential alternative employment, the
claimant, in order to prevail, must prove that he cannot perform the alternate work
suggested. See Carey v. Apfel, 230 F.3d 131,135 (5th Cir. 2000). The vocational expert
testified that Goyens could perform light work as an officer helper, processing clerk, and
assembler. Tr. 32-33. An ALl may properly rely upon the testimony and conclusions of
a vocational expert.

Carey, 230 at 145. Here, the ALl relied on the vocational expert's

testimony in response to the hypothetical question regarding the RFC limitations. Tr. 3233. Goyens' contention that the ALl erred in this reliance is based upon her contentions,
discussed above, that the ALl did not properly assess her RFC. Accordingly, the Court
find that the ALl did not err in finding that Goyens could perform alternative
employment.

22

F. ALJ's Failure
Employment

to

Determine

Whether

Goyens

Could

Maintain

Goyens also argues that the ALJ failed to determine whether she was able to
maintain such alternative employment. Goyens cites to the Fifth Circuit's holding in
Frank v. Barnhart, that if a claimant's impairment "waxes and wanes in its

manifestations of disabling symptoms," the ALJ must not only find that the claimant's
impairments do not prevent him from obtaining employment, but "also that the claimant
will be able to maintain employment." See Perez v. Barnhart, 415 F.3d 457, 465 (5th
Cir. 2005) (citing Frank v. Barnhart, 326 F.3d 618, 618 (5th Cir. 2003). However, the
Fifth Circuit has also held that "nothing in [these cases] suggests that the ALJ must make
a specific finding regarding the claimant's ability to maintain employment in every case."
Frank, 326 F .3d at 619. Instead, a finding that the claimant can maintain employment is

required only when the claimant's impairment "waxes and wanes" in its manifestation of
disabling symptoms. Id. Further, "it is not enough for a claimant to assert, in general,
that the impairment waxes and wanes; the claimant must demonstrate that [her] particular
impairment waxes and wanes." See Frank, 326 F.3d at 465 (noting "[i]t is axiomatic that
the pain from any type of ailment will vary in intensity, especially the farther one gets
from treatment that alleviates pain"). Here, Goyens has failed to explain which of her
impairments "wax and wane" in the manner described by Frank. Goyens' testimony is
not sufficient to meet the level of impairment required by the Fifth Circuit. See Perez,
415 F.3d at 465. There is nothing in the medical evidence to support Goyens' testimony
that she experiences good and bad days to the point that she is unable to sustain work.

23

See id. Accordingly, the Court finds that the ALJ did not err by failing to make a finding

regarding Goyens' ability to maintain employment.
Further, Goyens contends that the ALJ failed to perform a "function-by-function
assessment" of her abilities. The ALJ did provide a such a function-by function analysis
in determining whether Goyens could maintain employment. Tr.27-31.
CONCLUSION

A review of the record reveals that the ALJ applied the appropriate legal standards
in making his determination.

Additionally, substantial evidence supports the ALl's

determination that Goyens is not disabled under the relevant provisions of the Social
Security Act. A review of the pleadings and the record on file reflect that there is no
genume Issue of material fact in this case, and entry of summary judgment against
Goyens is therefore appropriate.

See FED. R. CIY. P.

56.

Accordingly, the Court

DENIES Goyens' Motion for Summary Judgment and GRANTS the Commissioner's

Motion for Summary Judgment.
Signed at Houston, Texas on September

~,20 14.

United States Magistrate Judge

24