Turpin v. Colvin
Filing
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MEMORANDUM AND ORDER denying 13 MOTION for Summary Judgment , granting 15 Cross MOTION for Summary Judgment . The Commissioner's decision is AFFIRMED. (Signed by Magistrate Judge Frances H Stacy) Parties notified. (wbostic, 4)
United States District Court
Southern District of Texas
ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
BRENDA LYNETTE TURPIN,
Plaintiff,
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July 15, 2016
David J. Bradley, Clerk
Case No.: 4:15-cv-01922
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vs.
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CAROLYN V. COLVIN, COMMISSIONER
OF THE SOCIAL SECURITY
ADMINISTRATION,
Defendant.
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MEMORANDUM AND ORDER GRANTING DEFENDANT'S MOTION FOR
SUMMARY JUDGMENT AND DENYING PLAINTIFF'S MOTION FOR
SUMMARY JUDGMENT
Before the Magistrate Judge 1 in this social security appeal is the Defendant's
Cross Motion for Summary Judgment and Brief in Support of Cross-Motion for
Summary Judgment (Document Nos. 15 & 15-1) and Plaintiff's Motion for Summary
Judgment and Memorandum in Support (Document Nos. 13 & 14). After considering the
cross motions for summary judgment, the administrative record, the written decision of
the Administrative Law Judge, and the applicable law, the Court ORDERS, for the
reasons set forth below, that Plaintiff's Motion for Summary Judgment is DENIED
(Document No. 13), Defendant's Cross Motion for Summary Judgment is GRANTED
(Document No. 15), and the decision of the Commissioner of the Social Security
Administration is AFFIRMED.
1
The parties consented to proceed before the undersigned Magistrate Judge on
September 30,2015. (Document No.9)
I.
Introduction
Plaintiff Brenda Lynette Turpin ("Turpin") brings this action pursuant to the Social
Security Act ("Act"), 42 U.S.C. § 405(g), seeking judicial review of a final decision of
the Commissioner of the Social Security Administration ("Commissioner") denying her
application for disability insurance benefits. Turpin argues that substantial evidence does
not support the Administrative Law Judge's decision ("ALJ"). Turpin alleges she has
been disabled since November 22, 2011, due to severe back and neck pain, as well as
carpal tunnel syndrome. According to Turpin, the ALJ, Gary J. Suttles, did not weigh all
of the evidence correctly. Specifically, Turpin argues that the ALJ failed to properly
weigh the medical opinions of her treating physician, Dr. Pucillo. Additionally, Turpin
claims the ALJ failed to properly evaluate Turpin's credibility. Turpin requests that the
decision of the Commissioner be reversed and awarding of benefits, or in the alternative,
remanding her claim for further consideration. The Commissioner responds that
substantial evidence supports the ALJ's decision that Plaintiff is not disabled within the
meaning of the Act, that the decision comports with applicable law, and that the decision
should be affirmed.
II.
Administrative Proceeding
Plaintiff filed an application for Social Security Disability Benefits ("SSD") on June
13, 2012, claiming an inability to work due to impairments beginning November 22,
2011 (Tr. 171-172). The Social Security Administration denied her application at the
initial and reconsideration stages. (Tr. 89-90). On February 1, 2013, Turpin requested a
hearing before an ALJ. (Tr. 101-102). The Social Security Administration granted her
request, and the ALJ, Gary Suttles, held a hearing on November 15, 2013. (Tr. 52-88).
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On January 30, 2014, the ALJ issued an unfavorable decision for Turpin finding her not
disabled. (Tr. 32-51 ).
Turpin sought review of the ALJ's decision with the Appeals Council. The Appeals
Council will grant a request to review an ALJ' s decision if any of the following
circumstances are present: (1) it appears that the ALJ abused his discretion; (2) the ALJ
made an error of law in reaching his conclusions; (3) substantial evidence does not
support the ALJ's actions, findings, or conclusions; or (4) a broad policy issue may effect
the public interest. 20 C.F.R. § 404.970; 20 C.F.R. § 416.1470. On May 7, 2015, the
Appeals Council denied the request for review. (Tr. 1-7). The ALJ's findings and
decision became final.
Turpin has filed a timely appeal of the ALJ's decision. Both the Commissioner and
Turpin have filed a motion for Summary Judgment (Document Nos. 13 & 15). This
appeal is now ripe for ruling.
The evidence is set forth in the transcript, pages 1 through 483. (Document No.6).
There is no dispute as to the facts contained therein.
III.
Standard of Review of Agency Decision
The court's review of denial of disability benefit is limited "to determining (1)
whether substantial evidence supports the Commissioner's decision, and (2) whether the
Commissioner's decision comports with legal standards." Jones v. Apfel, 174 F. 3d 692,
693 (5th Cir. 1999). Indeed, Title 42, Section 405(g) limits judicial review of the
Commissioner's decision: "The findings of the Commissioner of Social Security as to
any fact, if supported by substantial evidence, shall be conclusive." The Act specifically
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grants the district court the power to enter judgment, upon pleadings and transcript,
"affirming, modifying, or reversing the decision of the Commissioner of Social Security,
with or without remanding the cause for a hearing" when not supported by substantial
evidence. 42 U.S.C. § 405(g). While it is incumbent upon the court to examine the
record in its entirety to decide whether the decision is supportable, Simmons v. Harris,
602 F.2d 1233, 1236 (5th Cir. 1979), the court may not "reweigh the evidence in the
record nor try the issues de novo, nor substitute [its] judgment for that of the
[Commissioner] even if the evidence preponderates against the [Commissioner's]
decisions." Johnson v. Bowen, 864 F.2d 340,343 (5th Cir. 1988); see also Jones, 174
F. 3d at 693; Cook v. Heckler, 750 F.2d 391, 392-93 (5th Cir. 1985). Conflicts in the
evidence are for the Commissioner to resolve. Anthony v. Sullivan, 954 F.2d 289, 295
(5th Cir. 1992).
The United States Supreme Court has defined "substantial evidence," as used in
the Act, to be "such relevant evidence as reasonable mind might accept as adequate to
support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting
Consolidated Edison Co. v. NL.R.B., 305 U.S. 197, 229 (1938). Substantial evidence is
"more than a scintilla and less than a preponderance." Spellman v. Shalala, 1 F.3d 357,
360 (5th Cir. 1993). The evidence must create more than "a suspicion of the existence of
the fact to be established, but no 'substantial evidence' will be found only when there is a
'conspicuous absence of credible choice' or 'no contrary medical evidence.' Hames v.
Heckler, 707 F.2d 162, 164 (5th Cir. 1983).
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IV.
Burden of Proof
An individual claiming entitlement to disability insurance benefits under the Act has
the burden of proving her disability. Johnson, 864 F.2d at 344. The Act defines
disability 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)(l)(A). The impairment must be proven through
medically accepted clinical and laboratory diagnostic techniques. 42 U.S.C. § 423(d)(3).
The impairment must be so severe as to limit the claimant in the following manner:
[S]he is not only unable to do [her] previous work but cannot, considering
[her] age, education, and work experience, engage in any other kinds of
substantial gainful work which exists in the national economy, regardless of
whether such work exists in the immediate area in which [s]he lives, or
whether a specific job vacancy exists for [her], or whether [s]he would be
hired if [s]he applied to work.
42 U.S.C § 423(d)(2)(A). The mere presence of impairment is not enough to establish
that one is suffering from disability. Rather, a claimant is disabled only if she is
"incapable of engaging in any substantial gainful activity." Anthony, 954 F.2d at 293
(quoting Milam v. Bowen, 782 F.2d 1284, 1286 (5th Cir. 1986)).
The Commissioner applies a five-step sequential process to decide disability
status:
1. If the claimant is presently working, a finding of "not disabled" must be
made;
2. If the claimant does not have a "severe impairment" or combination of
impairments [she] will not be found disabled;
3. If the claimant has an impairment that meets or equals an impairment
listed in Appendix 1 of the Regulations, disability is presumed and
benefits are awarded;
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4. If the claimant is capable of performing past relevant work, a finding of
"not disabled" must be made; and
5. If the claimant's impairment prevents [her] from doing any other
substantial gainful activity, taking into consideration [her] age, education,
past work experience and residual functional capacity, [she] will be found
disabled.
Anthony, 954 F.2d at 293; see also Leggett v. Chafer, 67 FJd 558 n.2 (5th Cir. 1995);
Wren v. Sullivan, 925 F.2d 123, 125 (5th Cir. 1991). Under this formula, the claimant
bears the burden of proof on the first four steps of the analysis to establish that a
disability exists. Mcqueen v. Apfel, 168 F.3d 152, 154 (5th Cir. 1999). If successful, the
burden shifts to the Commissioner, at step five, to show that the claimant can perform
other work. Id Once the Commissioner shows that other jobs are available, the burden
shifts, again, to the claimant to rebut this finding. Selders v. Sullivan, 914 F.2d 614, 618
(5th Cir. 1990). If, at any step in the process, the Commissioner determines that the
claimant is or is not disabled, the evaluation ends. Leggett, 67 F.3d at 564.
Here, the ALJ determined that Turpin was not disabled at step five. The ALJ
found that Turpin had not engaged in substantial gainful activity since her alleged onset
date, November 22, 2011. (Step One). At step two, the ALJ found that Turpin's carpal
tunnel syndrome, degenerative disc disease of the cervical and lumbar spine, and obesity
were severe impairments. However, Turpin did not have an impairment or combination
of impairments that met or medically equaled an impairment listed in Appendix 1 of the
Regulations for disability to be presumed. (Step Three). Based on the record and the
testimony of Turpin, the ALJ found that Turpin had the RFC to perform light work
restricted to the extent that she could lift and/or carry ten pounds frequently and 20
pounds occasionally, stand and walk for 4 of 8 hours, each, and sit for six or eight hours,
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for a full eight-hour day. Her ability to push/pull and her gross and fine dexterity are
unlimited with the exception of frequent use of the hands, bilaterally. Additionally, the
ALJ found that she could occasionally climb stairs, bend, stoop, crouch, crawl, balance,
twist, and squat. She could occasionally be exposed to dangerous machinery. She has no
mental impairments. At step four, the ALJ determined she could perform her past
relevant work as a medical records clerk, and, in the alternate at step five, that she could
perform work as a general office clerk, a factory clerk, and a route delivery clerk.
In determining whether substantial evidence supports the ALJ's decision, the
court weighs four factors: (1) the objective medical facts; (2) the diagnosis and expert
opinions of treating physicians on subsidiary questions of fact; (3) subjective evidence of
pain and disability as testified to by the plaintiff and corroborated by family and
neighbors; and (4) the plaintiff's educational background, work history and present age.
Wren, 925 F.2d at 126.
V.
Discussion
a. Objective Medical Evidence
The objective medical evidence shows that Turpin has the following severe
impairments: carpal tunnel syndrome, degenerative disc disease ofthe cervical and
lumbar spine, and obesity. The record also reflects a history of hypertension. However,
physical examinations have not revealed any ongoing abnormalities related to
hypertension.
On September 6, 2011, Turpin sought treatment from Dr. Andrew Lee. Turpin
reported complaints of bilateral numbness and tingling as well as pain with weakness,
which she claimed had been present for 1 year, and was worse in her right hand. (Tr.
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263-264, 314-315). An x-ray showed no obvious bone or joint pathology. Id. Dr. Lee
noted his findings as follows:
Right hand-There is no obvious swelling or edema of the hand. There are
no deformities. There is no obvious atrophy of the thenar, hypothenar or
intrinsic muscles. The patient demonstrates full range of motion of the
wrist and fingers. There is no triggering. Finkelstein's test is negative.
Phalen's test is positive. Tinel's test is negative. Durkan's or compression
test is positive. The patient demonstrates mild decrease in grip and pinch
strength. Distal neurovascular examination are normal with normal twopoint discrimination. Left hand-There is no obvious swelling or edema of
the hand. There are no deformities. There is no obvious atrophy of the
thenar, hypothenar or intrinsic muscles. The patient demonstrates full
range of motion of the wrist and fingers. There is no triggering.
Finkelstein's test is negative. Phalen's test if positive. Tinel's test is
negative. Durkan's or compression test is positive. The patient
demonstrates mild decrease in grip and pinch strength. Distal
neurovascular examinations are normal with normal two point
discriminations.
Id.
Dr. Lee diagnosed Turpin with carpal tunnel syndrome and Turpin decided to
proceed with surgery on both hands, starting with the right hand. (Tr. 264).
On this same day, Dr. Lee referred Turpin to Dr. Jamie Guyden for an
electrodiagnostic consultation. (Tr. 277-280, 298-305). A physical examination by Dr.
Guyden revealed no thenar or hypothenar muscle atrophy, but the doctor found decreased
sensation to light touch in the medium nerve distribution in the upper right extremity as
well as positive carpal compression bilateral in Turpin's wrists. ld. An electrodiagnostic
impression for the left upper extremity revealed a mild left sensory demyelinating median
mononeuropathy at the wrist. Jd. An electrodiagnostic impression for the upper right
extremity revealed a moderate right sensorimotor demyelinating median mononeuropathy
at the wrist. Jd. There was no electrodiagnostic evidence of a cervical radiculopathy or
other focal nerve entrapment in either wrist. Jd.
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Later that month, on September 23,2011, Turpin underwent an MRI at One Step
Diagnostic which showed small disc bulges and protrusions at L3-4, L4-5, and L5-S1
which mildly flattened the ventral thecal sac. (Tr. 336, 374). The MRI also showed mild
narrowing of the neural foramen at L4-5 which mildly impinged upon the exiting nerve
roots. Id An MRI of the cervical spine on this same visit revealed moderate spondylosis
with multiple disc bulges and protrusions. (Tr. 339, 343, 377). The protrusion at C5-6
mildly compressed the cord but did not cause changes in the cord signal. Jd The MRI of
the cervical spine also revealed unconvertebral joint hypertrophy and foramina!
narrowing which mildly impinged on the exiting nerve roots as well as upper thoracic
spondylosis. (Tr. 340). Additionally, the MRI revealed 1 centimeter of abnormal signal
in the posterior lateral left spinal cord at C3 which Dr. Lee recommended a MRI with IV
contrast with thin cut axials through the region for further evaluation. Id
A MRI from One Step Diagnostics on October 5, 2011, revealed a
redemonstration of T2 signal abnormality in the cervical spinal cord eccentric to the left
at the C3 level measure 4/11 millimeters. (Tr. 337-338, 341-342, 375-376). There is no
concomitant enhancement within this focus or expansion of cord. Id. This could
represent a chronic demyelinating lesion or may represent a focus of myelomalacia. ld
There was additional redemonstration of disc and unconvertebral pathology, which was
most significant at the C4-C5 and C5-C6 levels with moderate central canal stenosis,
central disc protrusions and moderate bilateral foramina! narrowing with probable contact
of the exiting bilateral CS and C6 nerve roots. ld Lastly, this MRI found
redemonstration of small central disc protrusion at the C3-C4level with mild canal
stenosis and mild foramina! narrowing. Id
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On November 22, 2011, Turpin underwent intracarpal decompression and
decompressive volar fasciotomy ofher right hand. (Tr. 285-288, 310-313). At her
follow up appointment for the surgery on December 1, 2011, Turpin demonstrated a good
range of motion on all fingers for her right hand. (Tr. 265-268, 316-317). Dr. Lee noted
that the incisions were healing well and swelling and edema were minimal. Id. Distal
neurovascular examination was normal with intact 2 point discriminations. Id. At this
appointment, Turpin demonstrated the same mild decrease in grip and pinch strength and
a full range of motion in her fingers and wrist for her left hand. Jd. Dr. Lee made the
same findings on Turpin's left hand as he did on September 6, 2011. Id. Dr. Lee
informed Turpin of her treatment options, and Turpin elected to undergo the same
surgery on her left hand as she had undergone for her right hand. Jd.
Following this discussion, Turpin underwent intracarpal decompression and
decompressive volar fasciotomy on the left hand on December 27, 2011. (Tr. 281-284,
306-309). At a follow up appointment on January 5, 2012, Dr. Lee found the incisions to
be healing well with minimal swelling and edema. (Tr. 269-270, 318-319). At this time,
Turpin demonstrated a good range of motion on all fingers and her distal neurovascular
examination was normal with intact 2 point discriminations. Id. Turpin did not have any
complaints at this time. Id.
On February 7, 2012, Turpin reported continued tenderness in both hands. (Tr.
271-272). Dr. Lee reported that she was doing well except for some scar tissue reaction.
Id.
Shortly thereafter, Turpin visited Dr. Lee on March 6, 2012 with complaints of
ongoing pain over the scars in both hands. (Tr. 273-274, 320-321). Again, Dr. Lee found
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the incisions to be healing well with minimal swelling and edema, and no signs of
infection. Id Turpin demonstrated a good range of motion on all fingers with normal
distal neurovascular with intact two point discriminations. !d. The only difference Dr.
Lee found during this visit in comparison to previous visits was tenderness over the scars
on Turpin's left hand. !d.
On April3, 2012, Turpin visited Dr. Lee with continued numbness and tingling in
the left hand but her right hand was fine. (Tr. 275-276). A physical examination
revealed positive Phalen's and and compression tests. Id Turpin continued to
demonstrate a good range of motion in all fingers and the distal neurovascular
examination was normal. Id Dr. Lee wrote that he was "afraid that [Turpin] ha[d]
persisting CTS on the left side." Id
On August 9, 2012, Kim Rowlands, M.D., completed a Physical Residual
Functional Capacity Assessment. (Tr. 289-296). Dr. Rowlands found no exertional
limitations, communicative limitations, or environmental limitations. Id Dr. Rowland
assessed that Turpin had manipulative limitations that limited her fingering and feeling.
Id Her reaching and handling were unlimited. Id
Turpin's next visit to Dr. Lee was on September 18, 2012, where she complained
of continued tingling and numbness in the left hand despite taking anti-inflamatories and
wearing a brace. (Tr. 322). Turpin did not report any issues with her right hand nor did
the examiner find any issues. Id A physical examination revealed tenderness over the
surgical scars and positive Phalen's and compression tests for the left hand. Id Turpin
demonstrated a good range of motion in all fingers and her distal neurovascular
examination presented normal results. ld Dr. Lee diagnosed persisting carpal tunnel
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syndrome in the left hand. /d. At this time, Turpin stated that she wanted to proceed
with another surgery on her left hand. /d. The discussed surgery never took place, and
this September 2012 visit was Turpin's last visit to Dr. Lee for treatment.
On December 17, 20 12, another Physical Residual Functional Capacity
Assessment was completed by Robin Rosentock, M.D. (Tr. 323-330). Dr. Rosenstock
opined that Turpin had no postural limitations, visual limitations, communicative
limitations, or environmental limitations. ld. Contrary to the previous physical RFC
completed by Dr. Rowlands, Dr. Rosenstock opined that Turpin has exertionallimitations
allowing her to occasionally lift and/or carry 20 pounds, frequently lift and/or carry 10
pounds, stand and/or walk about 6 hours in an 8-hour work day, and sit about 6 hours in
an 8-hour workday. /d. Turpin's ability to push and/or pull was unlimited as well as her
ability to reach. Id. Unlike Dr. Rowland's RFC, Dr. Rosenstock found Turpin's feeling
to be unlimited. Id. Dr. Rosenstock further opined that limited handling (gross
manipulation) and fingering (skin receptors). Id. In the previous RFC, Dr. Rowlands
also found limited fingering but unlimited handling. (Tr. 289-296).
On AprillO, 2013, Turpin visited Dr. Pucillo for a well women exam. (Tr. 369372, 401-404). Turpin complained of joint pain in her neck and lower back pain during
this visit. (Tr. 402).
On May 2, 2013, Turpin returned to One Step Diagnostic for an MRI of her
lumbar spine revealing posterior disc herniations at L3/L4, L4/L5, and L5/S 1 causing
mild impingement on both existing nerve roots at those levels. (Tr. 332-333, 379-380,
393-384, 386-387, 411-412). Additionally, the MRI revealed multilevel mild to
moderate facet joint disease. /d. A separate MRI of Turpin's cervical spine revealed loss
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of hydration of the intervertebral discs at C4/C5 and C5/C6 with moderate disc narrowing
at these levels and multilevel posterior disc herniations. (Tr. 334-335, 381-382, 388-389,
409-41 0). At C5/C6, there was a mild mass effect upon the anterior aspect of the spinal
cord and multilevel nerve root impingement. Id The MRI also revealed a 7 millimeter
cystic lesion to Turpin's left thyroid lobe. Id
On May 9, 2013, Turpin had a mammogram which revealed no significant
masses, calcifications, or other findings in either of her breasts. It was recommended that
she consider annual mammography with tomosynthesis. (Tr. 407).
On June 7, 2013, Turpin began seeing Dr. Abraham Thomas. She complained of
low back pain that had been occurring for many years. (Tr. 366, 433-434). Turpin
described the pain as sharp, shooting, aching, and constant. Id She claims that nothing
alleviates the pain and it is made worse by standing, sitting and walking. Id Turpin also
complained of numbness, weakness and tingling of both upper extremities but denied
having any weakness, numbness or tingling of the lower extremities. Id The doctor
performed a lumbar examination and found poor toe and heel walking, and diminished
deep tendon reflexes in the lower extremities. !d. The doctor also found the Waddell's
sign positive for axial compression and a straight leg raise positive, bilaterally. Id
Physical therapy was recommended for 2 weeks following this appointment. Id
Turpin visited Dr. Thomas' office on June 21, 2013, complaining she was only
able to sit, walk or stand for less than 30 minutes. (Tr. 365-366, 396). Her pain level at
worst was 7-9/10 and at best was a 4-6/10. !d. Turpin described the pain as a constant
burning and aching pain. Id Dr. Thomas did not find any significant changes in the
physical exam since Turpin's last visit. Id
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On June 28, 2016, Turpin had a thyroid ultrasound. (Tr. 416). There were no
masses found on the right thyroid gland but the left thyroid gland contained a cyst off of
the inferior pole. Id.
On July 2, 2013, Turpin began physical therapy at Methodist Hospital in Sugar
Land. Turpin complained of achy pain in her lower pack which increased with prolonged
standing or walking. (Tr. 345-347). She stated that she cannot sit for too long and must
move around a lot. Jd. Turpin claimed to require assistance with lifting, and said she
avoids bending. Id. Turpin denied numbness or tingling in her legs and any problems
with her bowel or bladder function. Id. The treatment plan for physical therapy was gait
training, transfer training, bed mobility training, strengthening, and stretching her range
of motion. Jd. Additionally, the hospital recommended neuromuscular reeducation,
manual therapy techniques, lumbar stabilization techniques and patient/family education.
Id.
On July 8, 2013, Turpin visited Dr. Pucillo complaining of itchy and draining
eyes, drainage in the back of her throat causing a cough, and congestion. (Tr. 398-399).
Dr. Pucillo diagnosed her with an upper respiratory infection and an acute sore throat.
Jd. Turpin was prescribed Bromfed DM syrup for the upper respiratory infection and a
strep screen was administered for the sore throat. Id.
Turpin returned for physical therapy on July 9, 2013 reporting a pain level of
7.5/10. (Tr. 348). She stated that level of pain was about normal for her but she did feel
some relief after the evaluation. Jd.
July 11, 2013, was Turpin's next physical therapy session where she stated she
felt "good and must have slept well." (Tr. 350). The hospital reported Turpin had good
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tolerance to the exercises given, was able to perform proper PPT and had good form with
sit to stands. Id.
On July 17, 2013, Turpin returned to physical therapy again and reported
radiating pain into her right hip, which she stated was more painful than her lower back.
(Tr. 351). Turpin also stated she had neck pain that morning. Id During the bridging
exercise, Turpin claimed of increased lower back pain. /d. She reported that pain
decreased a little since the start of therapy. Id.
July 18, 2013 was Turpin's last visit to Methodist Hospital for physical therapy on
record. (Tr. 352). During this visit, Turpin reported that her back aggravates her when
she lays in bed sideways to watch television or movies for a long time. Id She also
reported a little pain down her leg that day. Id The physical therapist reported that
Turpin's transitions had slightly improved and the symptoms in her leg had slightly
decreased by the end of the session. /d.
Turpin returned to Dr. Thomas on July 19, 2013, and reported no improvement
with physical therapy and requested steroid injections for treatment. (Tr. 363-364, 395396, 430-431). At this appointment, Turpin stated that Advil decreased her pain. ld Dr.
Thomas noted no significant change in Turpin's physical examinations since her June 7,
2013 visit. /d.
On July 22, 2013, Turpin visited Dr. Thomas, again, complaining oflower back
pain that was radiating through both lower extremities. (Tr. 360-363, 394, 427-428).
On August 12, 2013 and August 19, 2013, Turpin returned to receive the lumbar
epidural steroid injections to which Turpin reported improvement in overall pain by less
than a half. (Tr. 354-359, 391-392, 424-425).
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On August 25,2013, Turpin sought treatment from Ben Taub Hospital reporting
that she was experiencing radiating, and sharp pain in her lower back. (Tr. 452-459, 479483). The emergency visit revealed a negative straight leg raise and no foot drop. Id.
Turpin stated that she had not taken any oral medications such as Advil to try and relieve
this pain. (Tr. 455). A physical exam revealed that Turpin exhibited tenderness in her
lumbar back, but had a normal range of motion, no swelling, and no edema. (Tr. 454).
An X-ray on August 26, 2013 showed probable posterior disc herniation at L4-L5
resulting in mild to moderate spinal canal stenosis and mild degenerative changes. (Tr.
450-451 ). There was no significant spinal canal or foramina stenosis. !d.
During an August 30, 2013, visit to The Back and Neck Clinic of Houston, Dr.
Thomas found no significant changes in physical exam since Turpin's last visit. (Tr. 353,
391, 418-419). Dr. Thomas diagnosed lumbar facet/disc pain, lumbar radiculopathy,
lumbar herniated nucleus pulpos, and lumbar spondylosis. Jd. Dr. Thomas suggested she
may need surgical evaluation. Jd.
Turpin sought treatment from Ben Taub Hospital again on September 7, 2013.
(Tr. 476-478). Her diagnosis was backache and she was prescribed 200 milligrams of
sulindac and 750 milligrams of methocarbamol. Id.
On September 10,2013, Turpin sought treatment from Dr. Ronald Pucillo who
found tenderness to palpitation from the neck to the lumbar area upon physical
examination and normal spinal curvature. (Tr. 465-467). Turpin displayed "good" finger
flexibility, "good" strength bilaterally for both upper and lower extremities, and a normal
gait. ld. Additionally, her reflexes were 2+ bilaterally and symmetric for both upper and
lower extremities. ld.
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Dr. Pucillo completed a Multiple Impairment Questionnaire (MIQ) on September
27, 2013. (Tr. 440-447, 468-475). In the MIQ, Dr. Pucillo indicated that Turpin suffers
from lumbar radiculopathy and multilevel disc disease of the cervical and lumbar spine
causing constant pain and weakness in her arms and legs. (Tr. 440-441). Dr. Pucillo also
stated that Turpin has constant pain in her entire neck, upper back, lower back and down
both ofher legs that is worsened if standing, walking or sitting too long. (Tr. 441-442).
In an eight-hour day, Dr. Pucillo indicated Turpin could only sit for 1-2 hours, and
stand/walk for 1-2 hours, would need to get up and move around every 1-2 hours and
would not be able to sit again for another 2-3 hours. (Tr. 442-443). Additionally, the
doctor indicated Turpin could never lift nor carry anything, has significant limitations in
doing repetitive reaching, handling, fingering or lifting, and is essentially precluded from
grasping, turning and twisting objects. Id The MIQ also indicated Turpin was marked to
moderately limited to using her fingers/hand for fine manipulations, and using her arms
for reaching. (Tr. 444). Dr. Pucillo opined that Turpin is capable of tolerating only low
stress due to emotional symptoms, and would be absent from work more than three times
a month. (Tr. 446). Dr. Pucillo wrote that he relied on MRis from May 2013 and
September 2011 in completing the MIQ and that Turpin's limitations "possibly" date
back to 2011. (Tr. 441-446).
Dr. Pucillo completed an Attending Physician Statement on May 9, 2014, finding
multilevel disc herniation in Turpin's cervical and lumbar spine as well as carpal tunnel
as her primary diagnosis. (Tr. 484-485). Dr. Pucillo found palpated tenderness in the
lumbar area and cervical spine and MRI changes in the lumbar and cervical spine. Id
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Dr. Pucillo suggested that Turpin can only sit or stand for a very limited time before she
has to lay down. ld
On May 21, 2014, Dr. Pucillo completed a Capabilities and Limitations
Worksheet. (Tr. 487-488). Dr. Pucillo indicated Turpin could never climb, crawl, kneel,
lift, pull, push, carry, bend, or twist but could occasionally reach forward or above her
shoulders. ld Dr. Pucillo also noted that Turpin never had firm hand grasping or even
hand grasping in either her left or right hands. ld Turpin occasionally had fine
manipulation, gross manipulation, repetitive motion, and could occasionally sit, stand and
walk. ld Dr. Pucillo added that she could sit or stand for 1-2 hours but then she must lay
down for 2-3 hours before she can get up again. ld
Dr. Pucillo completed a Disability Impairment Questionnaire regarding Turpin on
October 17, 2014. (Tr. 489-493). Turpin's diagnosis was multilevel posterior disc
herniations at L3-5, lumbar radiocalopathy, multilevel posterior cervical spine herniations
with nerve impingements and a thyroid cyst. Dr. Pucillo's findings to support this
diagnosis were Turpin's chronic back pain that often radiates down her legs, her carpal
tunnel syndrome in both arms, and the MRI changes seen in the cervical and lumbar
spine areas. Id Turpin's pain is present when she is sitting, standing, or laying down.
ld. Dr. Pucillo wrote that her arms are painful at night with a persistent numbness. Jd
The doctor believes the patient's symptoms will last at least 12 months and that Turpin is
not a malingerer. ld. Turpin's primary symptoms were constant pain in the entire back
and neck, weakness in her arms and legs, her inability to stand for long periods of time,
and paresthesias in her feet and fingers. ld Dr. Pucillo claims Turpin can only sit or
stand for 1-2 hours, must move around every 1-2 hours and cannot return to a seated
18
position for another 2-3 hours stating also that it is medically necessary for Turpin to
avoid continuous sitting in an 8-hour workday. Id The doctor also found that Turpin can
never lift nor carry 0-5 pounds. ld. Additionally, Dr. Pucillo found Turpin is moderately
to markedly limited to reaching, handling, fingering, and fine manipulations. Turpin is
markedly limited to grasping, turning, and twisting objects. Id Dr. Pucillo believes
Turpin's symptoms will worsen if she is placed in a competitive work environment and
that she will frequently experience symptoms severe enough to interfere with her
attention and concentration. Id. Additionally, the doctor believes Turpin will miss work
more than three times a month as a result of her impairments, which date back as far as
"possibly 2001." ld Dr. Pucillo does not think emotional factors contributed to the
severity of Turpin's symptoms. Id
On November 1, 2014, Turpin sought emergency treatment from Methodist
Hospital in Sugar Land. (Tr. 8-29). The discharge instructions advised Turpin to
increase restricted activities as tolerated with the use of a walker, avoid heavy lifting,
bending or twisting, and to maintain good body mechanics. Id The discharge
instructions indicated Turpin had a pain level of 3 and diagnosed her with lumbar
radiculopathy. Id Turpin was prescribed cyclobenzaprine, diazepam, and Tylenol with
Codeine to take as needed to relieve pain.
In addition to Turpin's medical records, the ALJ considered her body habitus.
When the claimant first sought treatment in September 2011, she weighed 165 pounds
with a height of five feet. (Tr. 263). In September 2014, Turpin weighed 178 pounds.
(Tr. 466). Therefore, based on the formula created by the National Institutes of Health
(NIH), Turpin's body mass index has been in excess of32 and indicative of obesity at all
19
times relevant to this decision. However, as discussed throughout her medical record,
there has been no evidence of cardiovascular or respiratory issues or abnormalities of
gait. The ALJ, nevertheless, took this aspect into consideration. (Tr. 43).
Here, substantial evidence supports the ALJ's findings that Turpin's carpal tunnel
syndrome, degenerative disc disease of the cervical and lumbar spine, and obesity were
severe impairments at step two, and that such impairments at step three, individually or in
combination, did not meet or equal a listed impairment.
RFC is what an individual can still do despite her limitations. It reflects the
individual's maximum remaining ability to do sustained work activity in an ordinary
work setting on a regular and continuing basis. SSR 96-8p, 1996 WL 374184, at *2
(SSA July 2, 1996). The responsibility for determining a claimant's RFC is with the
ALJ. See Villa v. Sullivan, 895 F.2d 1019, 1023-24 (5th Cir. 1990). The ALJ is not
required to incorporate limitations in the RFC that she did not find to be supported by the
record. See Muse v. Sullivan, 925 F.2d 785, 790 (5th Cir. 1991). Here, the ALJ carefully
considered all of the record in formulating an RFC that addressed Turpin's physical
impairments. The ALJ's RFC determination is consistent with Dr. Lee's, Dr. Thomas',
and Dr. Pucillo's consultative examinations, the treatment records, and the record as a
whole. The ALJ thoroughly discussed the medical evidence, and Turpin's testimony. He
explained how specific evidence supported his RFC assessment. The ALJ also
discounted Turpin's subjective complaints, finding that she was not entirely credible.
The ALJ articulated the reasons supporting her decision and tied the findings in his RFC
assessment to the totality of the record evidence. The ALJ, taking into account Turpin's
impairments, concluded that Turpin could perform light work restricted to the extent that
20
she could lift and/or carry ten pounds frequently and 20 pounds occasionally, stand and
walk for 4 of 8 hours, each, and sit for six or eight hours, for a full eight-hour day. Her
ability to push/pull and her gross and fine dexterity are unlimited with the exception of
frequent use of the hands, bilaterally. Additionally, the ALJ found that she could
occasionally climb stairs, bend, stoop, crouch, crawl, balance, twist, and squat. She could
occasionally be exposed to dangerous machinery. She has no mental impairments. This
factor weighs in favor of the ALJ's decision.
b. Diagnosis and Expert Opinions
The second element considered is the diagnosis and expert opinions of treating
and examining physicians on subsidiary questions of fact. The law is clear that a
"treating physician's opinion on the nature and severity of a patient's impairment will be
given controlling weight if it is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with ... other substantial
evidence." Newton v. Apfel, 209 F.3d 448, 455 (5th Cir. 2000). The ALJ may give little
or no weight to a treating source's opinion, however, if good cause is shown. ld. at 45556. The Fifth Circuit in Newton described good cause as 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. Id at 456. "[A]bsent
reliable medical evidence from a treating or examining physician controverting the
claimant's treating specialist, an ALJ may reject the opinion of the treating physician
only if the ALJ performs a detailed analysis of the treating physician's views under the
criteria set forth in 20 C.F.R. § 404.1527(d)(2)." Id. at 453. The six factors that must be
considered by the ALJ before giving less than controlling weight to the opinion of the
21
treating source are: (1) the length of treatment relationship; (2) frequency of examination;
(3) nature and extent of the treatment relationship; (4) the support of the source's opinion
afforded by the medical evidence of record; (5) the consistency of the opinion with the
record as a whole; and (6) the specialization ofthe source. 20 C.F.R. § 404.1527(d)(2);
Newton, 209 F .3d at 456. An ALJ does not have to consider the six factors "where there
is competing first-hand medical evidence and the ALJ finds as a factual matter that one
doctor's opinion is more well-founded than another," and "where the ALJ weighs the
treating physician's opinion on disability against the medical opinion of other physicians
who have treated or examined the claimant and have specific medical bases for a contrary
opinion." Id. at 458; Alejandro v. Barnhart, 291 F. Supp.2d 497, 507-11 (S.D.Tex.
2003). Further, regardless of the opinions and diagnoses of medical sources, "the ALJ
has sole responsibility for determining a claimant's disability status." Martinez v.
Chater, 64 F.3d 172, 176 (5th Cir. 1995). "The ALJ's decisions must stand or fall with
the reasons set forth in the ALJ's decision, as adopted by the Appeals Council." ld. at
455; see also Cole v. Barnhart, 288 F.3d 149, 151 (5th Cir. 2002) ("It is well-established
that we may only affirm the Commissioner's decision on the grounds which [she] stated
for doing so."). However, perfection in administrative proceedings is not required. See
Mays v. Bowen, 837 F.2d 1362, 1364 (5th Cir. 1988).
Here the thoroughness of the ALJ's decision shows that he carefully considered
the medical records and testimony, and that his determination reflects those findings
accurately. The ALJ summarized the evidence and set forth specific reasons concerning
the weight given to the opinions of the medical sources.
22
Turpin contends that the ALJ erred by discounting the opinion of Dr. Pucillo, her
treating physician, and giving greater weight to the opinions of the two State Agency
doctors. The Commissioner responds that the ALJ properly weighed all of the medical
opinions with "thorough consideration" to reach an appropriate assessment of Turpin's
impairments.
With respect to the opinions and diagnoses of treating physicians and medical
sources, the ALJ wrote:
In filing the application for Social Security benefits, the claimant alleged
limitations in her ability to work due to carpal tunnel on her hands. The
claimant also testified that she stopped working because she underwent
surgery on both hands. She states she continued to have numbness and
tingling of her left hand after surgery. She testified that her right hand is
starting to "fall asleep." Additionally, the claimant testified to having
ongoing neck and back pain. The claimant subsequently rated the
intensity of her pain symptoms as being 4 to 5 with medications. The
claimant indicated, however, that she takes prescribed medication
infrequently as it makes her breakout, and she is unable to afford
additional treatment because her insurance does not over her back
symptoms.
The claimant subsequently testified that secondary to symptoms, she is
able to lift no more than a gallon of milk, or type longer than 15 minutes
before having to rest. The claimant also testified that she has been
diagnosed as having high blood pressure, but is not taking any medications
for the symptoms.
After careful consideration of the evidence, I find the claimant's medically
determinable impairments could reasonably be expected to cause the
alleged symptoms; however, the claimant's statements concerning the
intensity, persistence and limiting effects of these symptoms are not
entirely credible for the reasons explained in this decision. The evidence
of record fails to support the claimant's allegations of ongoing and
disabling pain. Factors for consideration in evaluating an individual's
subjective complaints of pain include whether there is documentation of
persistent limitations of range of motion, muscle spasms, muscular
atrophy from lack of use, significant neurological deficits, weight loss or
impairment of general nutrition, and non-alleviation of symptoms by
medication. Hollis v. Bowen, 837 F.2d 1378, 1384 (5th Cir. 1988); and
Adams v. Bowen, 883 F.2d 509, 512 (5th Cir. 1987). None of the
23
claimant's examinations has disclosed any of the above findings to any
significant degree. Records submitted by treating sources also fail to
document any objective clinical or diagnostic findings that would preclude
the performance of light work as set forth in this decision.
For example, the evidence of record establishes that the claimant
presented for treatment in September 2011 with complaints of pain,
numbness, tingling and weakness of her hands that had been present for 1
year. On examination, Phalen's tests were positive, bilaterally, as were
Durkan's or compression tests. The claimant, however, had no swelling,
edema or deformities of the hands. There was no obvious atrophy of the
thenar, hypothenar or intrinsic muscles. Range of motion was also full in
the wrists and fingers with no evidence of triggering. Tinel' s and
Finkelstein's tests were negative. The examiner also noted that the
claimant demonstrated only a mild decrease in grip and pinch strength
(Exhibit IF, page 2). An electromyoprphy/nerve conduction study also
revealed a mild sensory demyelinating median mononeuropathy at the left
wrist; and a moderate sensorimotor demyelinating median
mononeuropathy at the right wrist. There was no evidence of any cervical
radiculopathy or other focal nerve entrapment (Exhibit 1F, pages 18 and
19; and Exhibit 3F, pages 2 through 9).
*
*
Contrary to the claimant's allegations of ongoing and disabling symptoms,
the record also contains no evidence of any treatment during the period
from September 19, 2012 to May 2013.
*
*
The medical record, as discussed above, fails to support the claimant's
allegations of ongoing and disabling symptoms. The Courts have held that
the Administrative Law Judge may properly consider the objective
medical evidence in testing credibility and finding the subjective
complaints exaggerated. Johnson v. Heckler, 767 F.2d 180 (5th Cir. 1985).
The claimant has also acknowledged activities of daily living that are
inconsistent with her allegations of ongoing and disabling symptoms.
Specifically, the claimant testified that she cares for her personal needs,
cooks, shops, performs household chores, reads, and utilizes a computer to
pay bills, read emails, and plays Candy Crush. The claimant also testified
that she visits with friends, and occasionally goes to the movies with her
mother. The claimant, in fact, testified that during the evening prior to the
hearing, she and friends had attended their children's football practice. In
written statements completed for the record, the claimant also indicated
24
that she takes care of her personal needs without difficulty, transports her
children to and from school, prepares meals several times a week,
performs household chores, shops, visits with her brother on a regular
basis and attends her son's football games (Exhibits 7E and 9E).
The Courts have held that the performance of household chores and other
daily activities may be considered in evaluating the credibility of the
claimant's functional limitations. Reyes v. Sullivan, 915 F.2d 151 (5th Cir.
1990). I find the claimant's actual daily activities reveal a significantly
greater physical functional ability than alleged.
I am cognizant, however, that an individual's daily activities and the
objective evidence are only two factors taken into consideration in
reaching a conclusion regarding credibility. Other factors include the
opinions, clinical and laboratory findings, the extent of medical treatment
and relief from medication and therapy, the claimant's work history,
attempts to seek relief from symptoms, and the extent, frequency, and
duration of symptoms. Taking all of these factors into consideration, I
find the claimant's allegation of an inability to perform all work activity to
be unsupported.
As for the opinion evidence, I am aware that Ronald Pucillo, M.D.
completed a Multiple Impairment Questionnaire in September 2013
indicating that the claimant had lumbar radiculopathy and multilevel disc
disease of the cervical and lumbar spine with constant pain and weakness
of her arms and legs (Exhibit llF, pages 1 and 2). The doctor
subsequently indicated that secondary to symptoms, the claimant was
unable to lift any appreciable amount of weight, and could sit for 1 to 2
hours in an 8-hour workday, and stand/walk for 1 to 2 hours in an 8-hour
workday. Indicating that the claimant could not sit continuously, the
doctor opined that the claimant needed get up and move around as
frequently as every 1 to 2 hours.
Dr. Pucillo also indicated that the claimant had marked limitations
(essentially precluded) in her ability to grasp, turn and twist objects,
bilaterally; and had moderate (significantly limited but not precluded) to
marked limitations in her ability to reach and use her fingers/hands for fine
manipulations. The doctor also indicated that the claimant was precluded
from pushing, pulling, kneeling, bending and stooping. According to the
doctor, the claimant's condition interfered with her ability to keep her
neck in a constant position and she was unable to perform a full time
competitive job that required the activity on a sustained basis.
Dr. Pucillo also indicated that the claimant was capable of only low stress
based on emotional symptoms. Additionally, the doctor indicated that the
claimant needed to take unscheduled breaks as frequently as every 1 to 2
25
hours and lasting for 2 to 3 hours; and secondary to treatment [for] her
impairment, the claimant would be absent from work on an average of
more than 3 times a month. The doctor indicated that the claimant had
been limited as set forth in his assessment since "possibly" 2011 (Exhibit
llF and Exhibit 14F, pages 4 through 11).
Little weight, however, is accorded to this opinion as Dr. Pucillo failed to
provide any objective findings to support his conclusions. Moreover, the
doctor's assessment is inconsistent with his own objective findings noted
during his examinations of the claimant. Specifically, the record reflects
no treatment by Dr. Pucillo prior to April2013, yet her proffers an opinion
on disability back to 2011, a time when he had not even treated her.
According to the doctor's records, when seen on April 10, 2013, the
claimant complained of bloating (Exhibit 8F, page 17). On examination,
Dr. Pucillo noted, however, that the claimant had no respiratory,
cardiovascular, abdominal or genitourinary abnormalities. There is no
evidence that the doctor performed any musculoskeletal or neurological
examinations (Exhibit 8F, page 18). Dr. Pucillo also failed to report any
musculoskeletal or neurological abnormalities during examinations
performed in July 2013 (Exhibit IOF, page 2).
As discussed earlier, during an examination performed on September I 0,
2013, the date of the assessment, the doctor noted the claimant's
subjective complaints of neck and back pain. On examination, however,
he indicated that the claimant had only tenderness to palpation from her
neck to her lumbar area with no evidence of any reflex loss. According to
the doctor, the claimant's motor strength was good and her gait was
normal. The claimant also displayed good flexibility of her fingers
(Exhibit 14F, page 2). Given the above, Dr. Pucillo's extreme limitations
in his assessment are not considered to be reflective of treatment records
or the claimant's ability to function as reflected by her own rather
extensive daily activities.
A State Agency medical consultant also completed a Physical Residual
Functional Capacity Assessment at the initial level indicating that the
claimant had no exertional, postural, visual, communicative or
environmental limitations. The doctor indicated, however, that the
claimant was limited to occasional fingering and feeling, bilaterally, due to
carpal tunnel syndrome (Exhibit 2F). I give this opinion some weight but
find 'frequent' bilateral hand ability and a light exertional level more
consistent with the objective medical record.
At the reconsideration level, a State Agency medical consultant completed
a Residual Functional Capacity Assessment indicating that the claimant
was able to lift and/or carry 10 pounds frequently and 20 pounds
occasionally, stand and/or walk for a total of about 6hours, and sit for a
26
total of about 6 hours in an 8-hour workday. According to the doctor, the
claimant was limited to only occasional handling and fingering on the left
(Exhibit 4F).
I give some weight to the opinions rendered by the State Agency medical
consultants; however, based on the longitudinal record, including the
claimant's statements regarding daily activities, it is concluded that she is
limited to light work as set forth in my established residual functional
capacity.
In sum, the residual functional capacity is supported by the longitudinal
medical records and the claimant's activities of daily living. The
claimant's activities of daily living are not limited and include a wide
variety of physical and social activities. While the claimant's impairments
are severe in that they have more than a minimal effect on her ability to
function, they are not totally disabling and do not preclude the
performance of all substantial gainful activity. (Tr. 39-45).
With respect to Dr. Pucillo's opinion, the ALJ found no objective findings
consistent with Dr. Pucillio's opinion to support his conclusions. Turpin's limitations
opined by Dr. Pucillo exceed the limitations supported by Turpin's medical history and
diagnosis.
The ALJ' s decision is a fair summary and characterization of the medical records.
Given the proper discounting of Dr. Pucillo's opinion concerning Turpin's physical
limitations, and the medical opinions which do support the ALJ' s residual functional
capacity determination, upon this record, the Court concludes that the diagnosis and
expert opinion factor also supports the ALJ's decision.
c. Subjective Evidence of Pain
The next element to be weighed is the subjective evidence of pain, including the
claimant's testimony and corroboration by family and friends. Not all pain is disabling,
and the fact that a claimant cannot work without some pain or discomfort will not render
27
him disabled. Cook, 750 F.2d at 395. The proper standard for evaluating pain is codified
in the Social Security Disability Benefits Reform Act of 1984, 42 U.S.C. § 423. The
statute provides that allegations of pain do not constitute conclusive evidence of
disability. There must be objective medical evidence to cause pain. Statements made by
the individual or his physician as to the severity of the plaintiffs pain must be reasonably
consistent with the objective medical evidence on the record. 42 U.S.C. § 423. "Pain
constitutes a disabling condition under the SSA only when it is 'constant, unremitting,
and wholly unresponsive to therapeutic treatment."' Selders, 914 F.2d at 618-19 (citing
Farrell v. Bowen, 837 F.2d 471, 480 (5th Cir. 1988)). Pain may also constitute a non-
exertional impairment which can limit the range of jobs a claimant would otherwise be
able to perform. See Scott v. Shalala, 30 F.3d 33, 35 (5th Cir. 1994). The Act requires
this Court's findings to be deferential. The evaluation of evidence concerning subjective
symptoms is a task particularly within the province of the ALJ, who has had the
opportunity to observe the claimant. Hames, 707 F.2d at 166.
Here, Turpin testified about her health and its impact on her daily activities. She
testified that she cannot sit for longer than 30 minutes, nor can she walk or stand for
longer than 15-30 minutes. (Tr. 76). Turpin stated that she can lift a gallon of milk,
which would be about eight and a half pounds. !d. She is able to drive, and did so the
day before the hearing. !d. She is able to go to the grocery store, post office, and bank
often. (Tr. 76-77). Turpin is able to do basic household chores such as laundry, dishes,
cooking, dusting, sweeping, and vacuuming. (Tr. 77). She is able to make the beds but
unable to move heavy furniture for vacuuming. (Tr. 83). Turpin's mother frequently
visits her and they will go to lunch and the movies together. (Tr. 78). The night before
28
her hearing, Turpin attended her children's football and cheerleading practices with two
friends. (Tr. 79). She is able to use a computer to pay bills, check emails and Facebook,
and keep up with current news. (Tr. 80). However, using the computer occasionally
bothers her hands after typing for only fifteen minutes. (Tr. 83). Turpin identified pain
as the biggest thing that prevents her from working and believes "no job is going to hire
[her] with [her] standing, sitting, walking around, moving around every 5 to 10, 15, 20
minutes." (Tr.82).
The ALJ rejected Turpin's testimony as not fully credible. The undersigned finds
that there is nothing in the record to suggest that the ALJ made improper credibility
findings, or that he weighed the testimony improperly. Accordingly, this factor also
supports the ALJ's decision.
d. Age, Education, and Work History
The final element the ALJ must consider is the claimant's educational
background, work history, and present age. According to the the Code, a claimant will be
determined to be disabled only if the claimant's physical or mental impairments are of
such severity that she is not only unable to do her previous work, but cannot, considering
her age, education, and work experience, engage in any other kind of substantial work
which exists in the national economy. 42 U.S.C. § 423(d)(2)(A).
The record shows that the ALJ questioned Mr. King, a vocational expert ("VE"),
at the hearing. "A vocational expert is called to testify because of his familiarity withjob
requirements and working conditions. 'The value of a vocational expert is that he is
familiar with the specific requirements of a particular occupation, including working
conditions and the attributes and skills needed." Vaughan v. Shalala, 58 F.3d 129, 131
29
(5th Cir. 1995) (quoting Fields v. Bowen, 805 F.2d 1168, 1170 (5th Cir. 1986)). It is well
settled that a vocational expert's testimony, based on a properly phrased hypothetical
question, constitutes substantial evidence. Bowling v. Shala/a, 36 F.3d 431, 436 (5th Cir.
1994). A hypothetical question is sufficient when it incorporates the impairments which
the ALJ has recognized to be supported by the whole record. Beyond the hypothetical
question posed by the ALJ, the ALJ must give the claimant the "opportunity to correct
deficiencies in the ALJ's hypothetical questions (including additional disabilities not
recognized by the ALJ's findings and disabilities recognized but omitted from the
question)." Bowling, 36 F.3d at 436.
The ALJ posed the following hypothetical questions to the VE:
Q. I'm going to find exertional ability to occasionally lift 20 pounds, 10
pounds frequently; stand and walk four of eight each; sit six of eight, for a
full eight-hour day; push/pull, gross/fine is unlimited except for frequent
use of the hands bilaterally; occasional stairs; no ladders, ropes, scaffolds,
or running; occasionally bend, stoop, crouch, crawl, balance, twist and
squat; occasional exposure to dangerous machinery. There's no mental
impairments. With those in mind, can she do any past work?
A. Under the hypothetical, she could perform the past work of medical
records clerk but not the supply clerk, Judge.
Q. Okay. Now, transferables, anything?
A. She has -- based on past work, she has acquired work skills to [do]
other work. (Tr. 85).
Q. Okay. Give me a few of those skills, sir.
A. She has, of course, record keeping skills, medical terminology skills,
computer skills, clerical skills. Those would be the primary skills.
Q. And what, what types of specific jobs would those skills transfer into?
A. I think it would be other clerical jobs. Examples that she could
perform, other jobs, these would be at the light semiskilled work base,
Judge, she could work as a -- excuse me -- as a, general office clerk. This
30
would be DOT code 209.562-010, and there would be around 3,000 of
these jobs in the regional economy, which would be Harris County and
five surrounding counties. For the national economy, there would be
385,000. A second example would be a, a, a return-to-factory clerk, DOT
code 209.587-042, and there would be around 2,000 of these jobs in the
regional economy. For the national economy, there would be 350,000.
And a third example would be a route delivery clerk, DOT code 222.587034, and there would be around 2,000 of these jobs in the regional
economy. For the national economy, there would be 365,000. {Tr. 86).
Turpin's counsel then had the following questions for the VE:
Q. Mr. King, if-A. 1res,ma'am?
Q. -- an individual were, if an individual were limited to occasional
handling and fingering, how would that affect their ability to perform the
claimant's past job as a medical records clerk as well as the three jobs
you've listed?
A. Those jobs would, would be done at a frequent basis.
Q. Okay. Now, if an individual would need rest breaks to lay down
occasionally, how would that affect their ability to perform these jobs?
A. If the person had to take rest breaks beyond the standard 15-minute
break in the morning, lunch break, 15 in the afternoon, they could not
maintain these jobs.
Q. And if an individual were missing more than three days of work a
month due to ailments, how would that effect their ability to maintain
these jobs?
A. Missing three or more days, they could not sustain or maintain those
jobs during that period. {Tr. 86-87).
Here, the ALJ relied on a comprehensive hypothetical question to the vocational
expert. A hypothetical question is sufficient when it incorporates the impairments which
the ALJ has recognized supported by the whole record. Upon this record, there is an
accurate and logical bridge from the evidence to the ALJ's conclusion that Turpin was
31
not disabled. Based on the testimony of the vocational expert and the medical records,
substantial evidence supports the ALJ's findings that Turpin could perform work as a
medical records clerk, general office clerk, return-to-factory clerk, and route delivery
clerk. The Court concludes that the ALJ's reliance on the vocational expert's testimony
was proper, and that the vocational expert's testimony, along with medical evidence,
constitutes substantial evidence to support the ALJ's conclusion that Turpin was not
disabled within the meaning of the Act and therefore was not entitled to benefits.
Further, it is clear from the record that the proper legal standards were used to evaluate
the evidence presented. Accordingly, this factor also weighs in favor of the ALJ's
decision.
VI.
Conclusion and Order
After reviewing the record in entirety, the undersigned is of the opinion that the ALJ
and the Commissioner properly used the guidelines set forth by the Social Security
Administration, which directs a finding of "not disabled" based on these facts. See Rivers
v. Schweiker, 684 F.2d 1144 (5th Cir. 1982). As all the relevant factors weigh in support
of the ALJ's decision, and as the ALJ used the correct legal standards, the Court
ORDERS that Defendant's Cross Motion for Summary Judgment (Document No. 15) is
GRANTED, the Plaintiffs Motion for Summer Judgment (Document No. 13) is
DENIED, and the Commissioner's decision is AFFIRMED.
Signed at Houston, Texas, this
/.of~ of---rt:-k~~~~-' 2016.
~~~~-~
FRANCES H. STACY
UNITED STATES MAGISTRATE JUDGE
32
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