Williams v. Colvin

Filing 21

MEMORANDUM OPINION AND ORDER GRANTING 20 Cross MOTION for Summary Judgment , DENYING 18 Opposed MOTION for Summary Judgment .(Signed by Judge Gray H. Miller) Parties notified.(rkonieczny, 4)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
DERWIN PATRICK WILLIAMS,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of the
Social Security Administration,
Defendant.

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March 28, 2016
David J. Bradley, Clerk

CIVIL ACTION H-15-82

MEMORANDUM OPINION & ORDER
Pending before the court is plaintiff Derwin Patrick Williams’s (“Williams”) motion for
summary judgment. Dkt. 18. Also pending is a cross-motion for summary judgment filed by
defendant Carolyn W. Colvin, the Acting Commissioner of the Social Security Administration (the
“Commissioner”). Dkt. 20. After considering the motions, responsive briefing, record evidence, and
applicable law, the court finds that Williams’s motion (Dkt. 18) should be DENIED, and the
Commissioner’s motion (Dkt. 20) should be GRANTED. The Commissioner’s decision is
AFFIRMED.
I. BACKGROUND
Williams 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 regarding Williams’ s claim for disability insurance
benefits and supplemental security income under Titles II and XVI of the Social Security Act (“the
Act”).

A.

Medical History
Williams was born on May 23, 1966, and was forty-one years old on the alleged disability

onset date of March 1, 2008. Tr.1 at 41, 152. Williams earned a general equivalency diploma (GED)
in 1990 and worked as a carpenter/carpenter’s helper from 1995 through 2005 and as an electrician’s
helper from 2005 through2008. Id. at 44–46, 157. After he was “laid off for a fire” from the
position as an electrician’s helper, Williams received unemployment beginning in 2008 through at
least the second quarter of 2010 while searching for employment. Id. at 46–47. For a period
thereafter, he performed “little odd jobs . . . . just trying to make ends meet.” Id. at 44–45.
On January 26, 2010, Williams suffered a head injury in a motorcycle accident and was
diagnosed with post-concussion syndrome and subsequently diagnosed with traumatic brain injury.2
Id. at 38, 406. After the motorcycle accident, the only work Williams undertook was cleaning his
church “every now and then” as a volunteer. Id. at 45.
On May 19, 2010, Dr. H.S. Chuang performed a consultative disability evaluation. Id. at
248. Williams complained of constant low back pain with intermittent shooting pain down one or
both legs. Id. Williams told Chuang that the back pain was aggravated by standing or sitting for
extended periods. Id. Williams reported feeling dizzy at times. Id. Chuang noted that, other than
walking slowly, Williams’s gait was normal and that he was “able to walk on his toes and heel
bilaterally and perform tandem walking.” Id. at 249. Low back pain prevented Williams from
performing deep knee bends, and Chuang found Williams to have moderate limitation of the flexion

1

“Tr.” refers to the certified administrative transcript filed on April 14, 2015, as docket entry
9 and its attachments.
2

The record contains no documentation of medical treatment prior to January 26, 2010.
2

and marked limitation of the extension and lateral bending of the back. Id. The x-rays taken on the
day of the appointment revealed mild disc space narrowing at L5-S1 and no apparent compression
fracture. Id. at 250.
On August 5, 2010, Dr. J.L. Paterson performed a consultative psychological evaluation,
finding Williams to have normal thought content, intact recent and remote memory, judgment, and
performance of simple calculations, and fairly intact abstract thinking and insight with below average
general knowledge and borderline intellectual functioning. Id. at 255–56. Williams drove himself
to the appointment and demonstrated fluid gross motor movements despite walking with a cane. Id.
at 253. Williams explained that he lived with his seven-year-old son and reported that he was able
to bathe and dress himself, to prepare food, to perform light housework, to drive when necessary,
to socialize occasionally, to adapt to and cope with change, to shop occasionally, to read and write,
to watch television, and to listen to the radio. Id. at 254–55. After performing a series of tests,
Paterson diagnosed Williams with organic mental disorder NOS and borderline personality disorder.
Id. at 257. The tests revealed evidence of underlying perceptual-motor dysfunction and short-term
memory deficits. Id. at 258. However, the doctor noted no recent history of depression and no
evidence of underlying psychosis and found Williams to be logical and coherent with social skills
adequate for interaction in the workplace. Id. at 257.
On June 23, 2011, Dr. Ashok Vachhani of Tri-County MHMR Services performed a
psychiatric evaluation and diagnosed Williams with bipolar disorder and depression with antisocial
traits. Id. at 288–307. Williams returned to the Tri-County MHMR Services outpatient clinic five
times for medication management between August 2011 and July 2012, at which point he was
discharged for noncompliance. Id. at 308–25, 352–63, 473–80, 493–94.

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On a monthly basis from July 2011 to March 2012, Williams saw Dr. Linda Hyde for
diabetes and pain-medication management. Id. at 262–86, 327–350. On every visit from December
2011 to March 2012, Hyde noted that Williams had a normal gait and did not use an assistive device
for walking but cautioned that he should not lift. Id. at 331, 334, 340, 346.
On April 21, 2012, Dr. Jerry Loving examined Williams on a consultative basis. Id. at
364–368. Williams reported back problems lasting for more than the past ten years and described
his current symptoms as “chronic, shooting pain radiating to his legs, tingling, and numbness . . .
exacerbated with prolonged sitting and standing and improv[ing] with heat application, medication,
and rest.” Id. at 364. Williams described his physical abilities to be sitting for thirty to forty
minutes, standing for thirty to forty minutes, walking one-half of a block, and lifting and carrying
five pounds repetitively and ten pounds occasionally. Id. at 365.
During the physical examination, Loving found Williams to have full muscle strength,
normal sensory input, negative straight-leg test bilaterally, and symmetric 2+ reflexes. Id. at 366–67.
The doctor noted tenderness in the lumbar muscles, a limited range of motion in the thoracolumbar,
an inability to squat and rise from a squatting position, and an inability to hop on one foot. Id. at
367. However, Williams was able to lift, carry, and handle light objects, to rise from a sitting
position, to walk on heels and toes with ease, to tandem walk normally, and to stand on either foot
individually. Id. Loving observed that Williams carried a cane but was able to maneuver about the
examination room without its assistance. Id. at 368. According to Loving, Williams explained that
he primarily used the cane for longer distances and uneven terrain. Id. Loving found that Williams
had a history of chronic low back pain, degenerative disc disease, and medically controlled diabetes.
Id. He opined:

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The claimant can be expected to sit normally in an eight-hour workday with normal
breaks. The claimant has mild limitations with standing and walking due to low back
pain. The claimant needs an assistive device, such as a cane, with regards to long
distances and uneven terrain. The claimant has mild limitations with lifting and
carrying weight due to low back pain. There are limitations on bending, stooping,
crouching, squatting and so on and the claimant will be able to perform these
occasionally secondary to low back pain. There are no manipulative limitations on
reaching, handling, feeling, grasping, fingering and the claimant will be able to
perform these frequently. There are some relevant visual limitations relating to
decreased visual acuity on the right without corrective lenses. There are no relevant
communicative or work place environmental limitations.
Id.
On June 21, 2012, Williams presented to the emergency room at St. Luke’s The Woodlands
Hospital complaining of upper back pain caused by lifting. Id. at 484–91. The treating physician
found Williams to have normal ranges of motion in upper and lower extremities and a normal gait.
Id. at 489. The doctor diagnosed Williams with a lumbrosacral strain and ordered the administration
of Ativan and Dilaudid injections, which immediately reduced Williams’s pain, and prescribed
Flexiril, a muscle relaxant. Id. at 487–88, 490.
B.

Application to Social Security Administration
Williams previously applied for disability insurance benefits alleging an onset date in January

2010. See id. at 42. According to the Commissioner, the application was denied on December 3,
2010, and was not appealed. Dkt. 20-1 at 2. Williams submitted a second application for disability
insurance benefits with a protective filing date of September 20, 2011, this time with the earlier
alleged onset date of March 1, 2008, and submitted an application for supplemental security income
benefits based on the same alleged onset date. Tr. at 17, 152. Williams claimed the following
conditions prevented him from working: degenerative back disorder, bipolar disorder, depression,
and diabetes. Id. at 156. Williams reported that he stopped working on February 1, 2008, because

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of his health conditions. Id. at 156. Williams’s date last insured for disability insurance benefits was
December 31, 2010. Id. at 17, 42.
Williams’s reports to the Commissioner regarding functional limitations stated that he found
it hard to stand or sit for any length of time, that his medications caused him to be sleepy, that he
could no longer run, ride bikes, ride horses, hike, play basketball and football, or tie his own shoes,
that he slept only three to four hours a night, that he needed reminders to take his medications and
to take care of his personal hygiene, that he used a cane to ambulate, and that he could not prepare
full meals or perform household chores other than occasionally folding clothes. Id. at 166–68, 170.
He also reported that he was unable to go out alone or drive a car, that he would forget to pay bills
or would write out checks incorrectly, that he could not lift more than ten pounds, that he had
difficulty focusing and completing tasks, and that he did not handle stress very well. Id. at 169,
171–72. On the other hand, Williams reported that he engaged in the following activities: watching
television, reading, and walking up to one-half of a block before needing rest. Id. at 170.
On May 3, 2012, Dr. Matthew Turner completed a Psychiatric Review Technique, finding
organic mental disorder, depression, and antisocial traits as medically determinable impairments.
Id. at 370–79. Turner found the following functional limitations: mild restriction of daily living,
moderate difficulties in maintaining social functioning and in maintaining concentration, persistence,
or pace, and no episodes of decompensation. Id. at 380. Although Turner found evidence of
psychiatric limitations, he found that the impact of Williams’s symptoms did not fully compromise
his ability “to function independently, appropriately, and effectively on a sustained basis.” Id. at 382.
In a Mental RFC Assessment completed on the same day, Turner assessed Williams to have
marked limitations in the ability to understand and remember detailed instructions and in the ability

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to carry out detailed instructions. Id. at 392. In all other areas, Turner found Williams’s limitations
to be no more than moderate. Id. at 392-93. Turner opined that Williams could “maximally
understand, remember, and carry out only simple instructions, make simple decisions, attend and
concentrate[] for extended periods, interact adequately with co-workers and supervisors, and respond
appropriately to changes in routine work setting.” Id. at 394.
On May 3, 2012, Dr. Robin Rosenstock completed a Physical RFC Assessment and found
Williams capable of occasionally lifting and/or carrying fifty pounds and frequently lifting and/or
carrying twenty-five pounds. Id. at 385. Rosenstock also found Williams capable of standing and/or
walking about six hours in an eight-hour workday, sitting about six hours in an eight-hour workday,
and pushing or/pulling without limitation. Id. No postural, manipulative, visual, communicative,
or environmental limitations were noted on the assessment. Id. at 386–88.
The Commissioner denied Williams’s application at the initial level in May 2012 and at the
reconsideration level in July 2012. Id. at 63–66, 73–82, 86–89, 93–100. Williams requested a
hearing before an administrative law judge (“ALJ”) of the Social Security Administration. Id. at
102–03. The ALJ granted Williams’s request and conducted a hearing on June 26, 2013, in Houston.
Id. at 34–62, 104–05, 111–16.
C.

Hearing
At the hearing, Williams and a vocational expert (“VE”) testified.3 Id. at 34–62. Williams

was represented by an attorney. Id. at 34. The ALJ began the questioning of Williams. Id. at 39.
Williams stated that he weighed about thirty pounds less than he had prior to the motorcycle accident

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Williams’s attorney announced the presence of another witness, one of Williams’s friends,
but the transcript does not reflect that the friend provided testimony. See Tr. at 39.
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and explained the weight difference as a result of becoming insulin dependent since the accident.
Id. at 42, 43. When asked whether he used an assistive device for walking, Williams answered
affirmatively, indicating that it had been prescribed by a doctor. Id. at 44. The ALJ asked a few
more background questions and turned the questioning over to Williams’s attorney, who focused on
the period after the 2010 motorcycle accident. Id. at 45–47.
The attorney asked Williams about his psychiatric care after the accident. Id. at 47. Williams
reported that he had been treated by a psychiatrist for bipolar disorder until sometime in 2012. Id.
at 47–48. At the time of the hearing, Williams said, he experienced “good days and bad days” and
“ups and downs.” Id. at 48. He said a “good” or “up” day would be “not crying.” Id. at 48.
Williams also reported having trouble getting along with people and having problems with his
memory. Id. at 48, 49. “I like to be around people. . . . I just can’t get along,” Williams explained.
Id. at 48. Regarding his memory after the accident, Williams provided the example of walking into
the kitchen and not remembering why he was there. Id. at 49.
Williams then discussed his back problem, which he said was more pronounced after the
accident, describing daily pain primarily in his lower back but, more recently, also in his upper back.
Id. at 50. He described the pain: “[I]t’s just sore. I get shooting pains down my legs throbbing.”
Id. at 50–51. He also said that the back pain, in combination with diabetes, caused his legs to “start
giving out on” him and caused his right leg to be a lot weaker than his left. Id. at 52. Williams
stated that he could sit in one spot for “[m]aybe an hour” before having to stand and move. Id. at
51. The pain made it difficult, Williams said, to bend over to put on, tie, and remove shoes. Id.
Williams said that Hyde and one of his other doctors were “pushing” him to have an operation on

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his back. Id. at 55. Williams reported that he took medication “[s]paringly” for the back pain. Id.
at 51.
In addition to taking hydrocodone and oxycodone for back pain, Williams testified that he
was taking a muscle relaxer and medications for diabetes, nerve damage, bipolar disorder,
depression, and schizophrenia. Id. at 51-53. As side effects, he reported that the schrizphrenia
medication caused his face to go numb for about an hour and caused him to become dizzy. Id. at 54.
When taken as prescribed, Williams said, the combined effect of the medications prompted him to
lie down daily for about an hour. Id. Williams reported that he tested his blood sugar level at least
three or four times per day and injected insulin four or fives times a day. Id. at 54–55.
Having reviewed the record and heard Williams’s testimony, the VE classified Williams’s
past relevant work as a carpenter as medium and skilled, as a carpenter helper as “heavy, light, semiskilled;” and as an electrician helper as medium and semi-skilled. Id. at 57–58. The ALJ presented
the following hypothetical individual for the VE’s consideration:
I want you to assume an individual who is the same age as the claimant with the same
education and work experience. He has the ability to perform light exertion as
defined by Social Security Administration Regulations except he cannot work around
vibrations. He cannot climb ropes, ladders or scaffolds. He cannot work in
environments with air pollutants [or] irritants. He is limited to simple routine work
that does not require more than occasional contact with the public.
Id. at 58. The VE opined that the hypothetical individual could not perform Williams’s past
occupations but could work as a mail room clerk, a small products assembler, or a shipping-andreceiving weigher, all positions represented in significant numbers in the state and national markets.
Id.
The ALJ asked if jobs would be available to the same person if limited to sedentary exertion.
Id. The VE listed three additional jobs that were found in significant numbers in the state and
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national markets: file assembler, optical goods worker, and surveillance system monitor. Id. The
VE said that no jobs would be available if that same individual was “limited by severe pain and
psychologically based symptoms which cause periodic loss of concentration and attention to tasks
[and] difficulties meeting attendance standards and would compromise his ability to perform work
on a regular and continuing basis.” Id. at 59.
The VE answered in the negative the attorney’s query whether the same hypothetical
individual with an inability to recall one, two, or three-step job instructions after a twenty-minute
interval who needed prompting every twenty to thirty minutes would be employable. Id. Other
limitations that individually would exclude the hypothetical individual from employability were:
the inability to remember instructions for five minutes; the need to lie down or not be on task for one
hour per eight-hour workday not including breaks; or mood swings between happiness, sadness,
crying spells, and isolated behavior that would distract other individuals. Id. at 60. However, if the
original hypothetical individual could only bend occasionally, rotate in the back or hips occasionally,
and bend from side to side occasionally, he could still perform the light-exertion jobs of small
products assembler and mail room clerk and all of the sedentary-exertion jobs. Id. at 61.
D. Administrative Law Judge’s Decision
On August 29, 2013, the ALJ determined that Williams was not under a disability from
March 1, 2008, through the date of the ALJ’s decision and denied Williams’s application for
disability insurance benefits and supplemental security income. Id. at 14-28. Initially, the ALJ
found that, although Williams continued to work part time performing odd jobs through at least
January 2010, he did not engage in substantial gainful activity after March 1, 2008. Id. at 19. The
ALJ found that Williams had the following severe impairments since January 26, 2010: degenerative

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disc disease of the lumbar spine, affective disorder, organic brain syndrome, and personality
disorder. Id. The ALJ also determined that Williams “had no medically determinable impairment”
from March 1, 2008, to January 26, 2010, and that diabetes was controlled by medication and did
not cause functional limitations. Id. at 20.
At step three of the disability analysis, the ALJ determined that Williams did not have “an
impairment or combination of impairments that [met] or medically equal[ed] the severity of one of
the listed impairments” in 20 C.F.R. Part 404, Subpart P, Appendix 1 (the “Listings”). Id. at 20. In
making that determination, the ALJ considered Listings 1.04 (disorders of the spine), 12.02 (organic
mental disorders), 12.04 (affective disorders), and 12.08 (personality disorders). Id.
The ALJ concluded that Williams had the residual functional capacity to perform light work
with the following limitations: inability to work around vibrations; inability to climb ropes, ladders,
or scaffolds; inability to work in environments with air pollutants or irritants; inability to perform
more than simple, routine work; and inability to be in contact with the public more than occasionally.
Id. at 22. In reaching this conclusion, the ALJ cited Williams’s written and hearing testimony, as
well as the self-reports provided to treatment providers. Id. at 22-23. The ALJ determined that
written documentation reflected a greater level of activity than Williams’s testimony and found
Williams’s testimony to “not be entirely credible” as to the severity of his symptoms and his work
abilities. Id. at 22-23. The ALJ also discussed Williams’s medical treatment, including Chuang’s,
Paterson’s, Tri-County MHMR Services’, and Loving’s examination/treatment notes, and
Rosenstock’s and Turner’s RFC assessments. Id. at 23–25.
The ALJ found that Williams was unable to perform his past relevant work but had the
residual functional capacity (“RFC”) to perform the following representative occupations: mail room

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clerk, small products assembler, and shipping-and-receiving weigher. Id. at 27. Thus, the ALJ
found that Williams was not disabled from January 26, 2010, through August 29, 2013, the date of
the ALJ’s decision. Id. at 27.
Williams appealed the ALJ’s decision, and, on October 1, 2014, the Appeals Council denied
Williams’s request for review, thereby transforming the ALJ’s decision into the final decision of the
Commissioner. Id. at 7-9, 12. After receiving the Appeals Council’s denial, Williams sought
judicial review of the decision by this court. See Dkt. 1.
II. LEGAL STANDARD
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).
In order to obtain disability benefits, a claimant bears the burden of proving that he 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 he 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).

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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 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 he has done in the past must be found “not disabled;” and (5) if the
claimant is unable to perform his previous work as a result of his impairment, then
factors such as his age, education, past work experience, and [RFC] must be
considered to determine whether 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. 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.
The widely accepted definition of “substantial evidence” is “that quantum of relevant
evidence that a reasonable mind might accept as adequate to support a conclusion.” Carey v. Apfel,
230 F.3d 131, 135 (5th Cir. 2000). It is “something more than a scintilla but less than a
preponderance.” Id. The Commissioner has the responsibility of deciding any conflict in the
evidence. Id. If the findings of fact contained in the Commissioner’s decision are supported by
substantial record evidence, they are conclusive, and this court must affirm. 42 U.S.C. § 405(g);
Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir. 1990). Only if no credible evidentiary choices of
medical findings exist to support the Commissioner’s decision should the court overturn it. Johnson
v. Bowen, 864 F.2d 340, 343-44 (5th Cir. 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.

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1999). In other words, the court should defer to the decision of the Commissioner as much as is
possible without making its review meaningless. Id.
III. ANALYSIS
In his motion for summary judgment, Williams argues that the Commissioner failed to give
proper weight to the medical opinion of Loving, an examining medical source. Dkt. 18 at 6–10.
Williams takes issue with the ALJ’s finding that Loving’s opinion is entitled only to “some weight”
and with the ALJ’s failure to include all functional limitations included in Loving’s RFC
determination. Dkt. 18 at 7–8. The Commissioner argues that the ALJ’s decision, including the
weight given medical-source opinions, followed correct legal standards and was supported by
substantial evidence. Dkt. 20-1 at 13–22.
The ALJ must evaluate every medical opinion in the record and decide what weight to give
each. See 20 C.F.R. §§ 404.1527(c), 416.927(c). In doing so, the ALJ considers the following
nonexclusive factors: (1) the “[l]ength of the treatment relationship and the frequency of
examination;” (2) the “[n]ature and extent of the treatment relationship;” (3) the relevant medical
evidence supporting the opinion; (4) the consistency of the opinion with the remainder of the medical
record; (5) the treating physician’s area of specialization.

20 C.F.R. §§ 404.1527(c)(2),

416.927(c)(2); see also Newton v. Apfel, 209 F.3d 448, 456 (5th Cir. 2000). Although the ALJ is
required to consider these factors in deciding what weight to give an examining consultant, the ALJ
is not required to record that process in writing. See 20 C.F.R. §§ 404.1527(c), 416.927(c) (requiring
that the factors be considered, not requiring that they be discussed in the determination notice);
Newton, 209 F.3d at 256 (requiring that an ALJ set forth the analysis in writing only when the
opinion of a treating physician is rejected based only on the testimony of a nonexamining,

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nonspecialty medical expert). The ALJ also need not articulate reasons for the weight given a
nontreating source’s opinion. See 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2) (requiring that the
ALJ give good reasons in the decision for the weight given a treating source’s opinion); SSR 96-2p,
1996 WL 374188, at *5 (July 2, 1996) (emphasis added) (same).
Here, the opinion at issue was that of a consultative examiner, not a treating physician. The
ALJ’s only obligations were to evaluate the opinion and decide what weight to give it based on the
factors listed in the regulations. The ALJ made no legal error by failing to articulate her findings on
each factor or the reasons for the weight given Loving’s opinion. In fact, the ALJ devoted a lengthy
paragraph to Loving’s three-page examination report. Tr. at 24. The paragraph addressed all of
Loving’s findings. Id. However, the ALJ did err in the summary of Loving’s report on two
significant points. The ALJ stated that “there was no tenderness to palpation in the lumbar muscles”
and that Williams “was able to rise from a squatting position without assistance” when, in fact,
Loving’s report stated exactly the opposite. Compare id. at 24, with id. at 367. However, those
errors, in and of themselves, are not enough to require reversal.
The Fifth Circuit has determined that district courts reviewing social security benefit denials
must apply a harmless error analysis in evaluating the effects of an ALJ’s purported failure to
consider certain evidence. Audler v. Astrue, 501 F.3d 446, 448 (5th Cir. 2007) (“Having determined
that the ALJ erred in failing to state any reason for her adverse determination at step 3, we must still
determine whether this error was harmless.”). The Audler court further explained that “[p]rocedural
perfection in administrative proceedings is not required as long as the substantial rights of a party
have not been affected.” Id. (quoting Mays v. Bowen, 837 F.2d 1362, 1364 (5th Cir. 1988)); see also
Taylor v. Astrue, 706 F.3d 600, 603 (5th Cir. 2012). Harmless error exists when there is no

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possibility that the ALJ would have reached a different conclusion absent the error. Bornette v.
Barnhart, 466 F. Supp. 2d 811, 816 (E.D. Tex. 2006) (citing Frank v. Barnhart, 326 F.3d 618, 622
(5th Cir. 2003)).
Despite misstating Loving’s medical findings, the ALJ correctly stated Loving’s RFC
determination, including his view that Williams could bend, stoop, crouch, and squat only
occasionally due to lower back pain. See Tr. at 24, 25. The ALJ’s errors arguably raise the question,
then, whether the ALJ would have afforded Loving’s opinion more than “some weight” had the ALJ
correctly stated the medical findings on squatting and back tenderness and acknowledged that
Loving’s RFC determination was consistent therewith. Assuming that the ALJ would have given
Loving’s opinion more weight in that case, whether it was harmless error not to do so depends on
whether the full incorporation of limitations recognized by Loving would not have changed the
ALJ’s conclusion.
Comparing Loving’s RFC determination with the ALJ’s, the court first notes that Loving’s
exertional limitations are consistent with light work, which comports with the ALJ’s RFC
determination. The light-work category limits lifting to no more than twenty pounds at a time and
frequent lifting or carrying to no more than ten pounds. 20 C.F.R. §§ 404.1567(b), 416.967(b).
Loving found that Williams had “mild limitations with lifting and carrying weight due to low back
pain,” which suggests a much greater ability to lift and carry than the upper limits of light work.
Tr. at 368. Light work requires “a good deal of walking or standing,” or, if involving mostly sitting,
it requires “some pushing and pulling of arm or leg controls.” 20 C.F.R. §§ 404.1567(b),
416.967(b). Loving found that Williams had mild limitations with standing and walking, which is
fully consistent with a “good deal” of walking or standing. Tr. at 368. The light-work limitations

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on standing and walking do not preclude the use of an assistive device. Loving put no limitations
on Williams’ ability to sit or push and pull arm or leg controls. See id.
Regarding nonexertional limitations,4 Loving imposed no environmental limitations whereas
the ALJ limited work in environments with air pollutants or irritants. Compare id. at 22, with id. at
368. Neither Loving nor the ALJ imposed manipulative or communicative limitations. Compare
id. at 22, with id. at 368. Loving stated in his RFC determination, that Williams had “decreased
visual acuity on the right without corrective lenses.” Id. at 368 (emphasis added). Correctable
limitations do not factor into the RFC analysis. Johnson, 864 F.2d at 348 (citing 20 C.F.R.
§§ 404.1530, 416.930; Lovelace v. Bowen, 813 F.2d 55, 59 (5th Cir. 1987)) (holding that an
impairment which can be reasonably controlled or remedied with medication is not disabling under
the Act).
That leaves the issue of postural limitations, which is where the two RFC determinations
diverge. Loving limited bending, stooping, crouching, and squatting to occasional while the ALJ
did not place any limitation on those activities but ruled out any climbing of ropes, ladders, or
scaffolds, which is not mentioned in Loving’s RFC. Compare Tr. at 22, with id. at 368. Ultimately,
the ALJ’s failure to include the additional postural limitations recognized by Loving was harmless
error because none of the three representative occupations cited by the ALJ require postural activity.
See Dictionary of Occupational Titles (4th ed. 1991), 209.687-026 (mail clerk), 1991 WL 671813;
id. at 739.687-030 (small products assembler), 1991 WL 680180; id. at 222.387-074 (shipping-and-

4

Nonexertional limitations include psychological, environmental, manipulative,
communicative, visual, and postural limitations. See 20 C.F.R. §§ 404.1569a (c), 416.969a(c). The
ALJ included the psychological limitation of only occasional contact with the public. Tr. at 22.
Loving included no psychological limitation in his assessment as he evaluated Williams for solely
for physical abilities.
17

receiving weigher), 1991 WL 672108. They each specifically rule out any requirement for stooping,
kneeling, crouching, and crawling and implicitly rule out by omission any requirement for bending
or squatting.5 See Dictionary of Occupational Titles (4thed. 1991), 209.687-026 (mail clerk), 1991
WL 671813; id. at 739.687-030 (small products assembler), 1991 WL 680180; id. at 222.387-074
(shipping-and-receiving weigher), 1991 WL 672108.

Additionally, the VE testified that a

hypothetical individual who could only occasionally bend, rotate in the back or hips, and bend from
side to side could still perform work as a mail clerk and small products assembler. Tr. at 61.
Finding that the ALJ’s decision is supported by substantial evidence and is sufficiently
articulated, the court must affirm the Commissioner’s denial of benefits in this case.
IV. Conclusion
Williams’ motion for summary judgment (Dkt. 18) is DENIED, and the Commissioner’s
cross-motion for summary judgment (Dkt. 20) is GRANTED. The Commissioner’s decision is
AFFIRMED. The court will enter a separate judgment consistent with this order.
Signed at Houston, Texas on March 28, 2016.

______________________________________
Gray H. Miller
United States District Judge

5

Loving referred to bending, stooping, crouching, and squatting, whereas the regulations
refer to stooping, crouching, and crawling as the comparable postural limitations. See 20 C.F.R. §§
404.1569a (c), 416.969a(c).
18