Perera v. Colvin
MEMORANDUM OPINION AND ORDER granting 12 MOTION for Summary Judgment , denying 10 MOTION for Summary Judgment . Commissioner's decision is confirmed. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
United States District Court
Southern District of Texas
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
REVATHA V. PERERA,
CAROLYN W. COLVIN, 1
ACTING COMMISSIONER OF THE
SOCIAL SECURITY ADMINISTRATION,
David J. Bradley, Clerk
June 29, 2017
CIVIL ACTION NO. H-16-1131
MEMORANDUM OPINION AND ORDER
Pending before the court are Plaintiff, Revatha V. Perera's, Motion for Summary Judgment
(Docket Entry No. 10) and Defendant, Carolyn W. Colvin's, Cross-Motion for Summary Judgment
(Docket Entry No. 12). The court has considered the motions, Defendant's response to Plaintiffs
motion, the administrative record, and the applicable law. For the reasons set forth below, Plaintiffs
motion will be denied and Defendant's motion will be granted.
Plaintiff filed this action pursuant to 42 U.S.C. § 405 (g) for judicial review of an
unfavorable decision by the Commissioner of the Social Security Administration ("Commissioner"
or "Defendant") regarding Plaintiffs claims for disability insurance benefits under Title II of the
Social Security Act.
0n January 23, 2017, Nancy A. Berryhill became the Acting Commissioner ofthe Social
Plaintiff was sixty years old on October 1, 2013, the alleged disability onset date. 2 Plaintiff
worked as an employee benefits specialist from January of 1981 to January of2003 and as a trust
operations specialist from January of2004 to October of2013. 3
Srinivas Panja, MD, MRCP, who was noted as Plaintiffs primary physician, 4 examined and
treated Plaintiff on five different occasions between 2012 and 2015. 5 On January 5, 2012, Plaintiff
admitted to drinking a fair amount of alcohol on a daily basis, and Dr. Panja's records noted type
2 diabetes mellitus, anxiety/depression, hypertension, and hyperlipidemia as ongoing medical
problems. 6 During that examination Dr. Panja noted that there was no objective evidence of anxiety
or depression and diagnosed Plaintiff with type 2 diabetes, mixed hyperlipidemia, and tobacco use
disorder. 7 On May 17, 2013, Dr. Panja noted that Plaintiff continued to drink a fair amount of
alcohol and again noted no evidence of anxiety or depression. 8 Plaintiff was diagnosed with benign
essential hypertension, mixed hyperlipidemia, and type 2 diabetes mellitus. 9 On November 1, 2013,
Dr. Panja examined Plaintiff and noted that there was no evidence of anxiety or depression and that
Plaintiff had been able to stop drinking alcohol. 10
See Doc. 7, Transcript of Administrative Proceedings ("Tr.") 171.
See Tr. 173.
See Tr. 237; 240.
See Tr. 348-58.
See Tr. 352.
See Tr. 353.
See Tr. 350-51.
See Tr. 351.
See Tr. 357-58.
On January 23, 2014, Plaintiff was examined by Ray M. Fitzgerald, MD, for lumps in his
hands. 11 Dr. Fitzgerald recorded that Plaintiff had full range of motion in both hands. 12 X-rays of
the hands showed no abnormality, and the examination reflected palmar Dupuytren's nodules on
both hands with no evidence of contractures. 13 Dr. Fitzgerald's impression of Plaintiffs condition
was bilateral Dupuytren's nodules. 14 Concerning Plaintiffs mental state, Dr. Fitzgerald noted that
Plaintiff was taking 12.5 mg of Paxil CR and denied anxiety and depression. 15 Dr. Fitzgerald
referred Plaintiff to Dr. Rosen for further examination of his hands. 16
On March 3, 2014, Alan Rosen, MD, examined Plaintiffs hands and noted that Plaintiffs
hands were neurovascularly intact. 17 Dr. Rosen recorded bilateral palmar fascia thickening located
at the base of the ring and small finger of the right hand, but he found no contractures and a full
range ofmotion. 18 Dr. Rosen's impressions were osteoarthrosis in the bilateral hands and bilateral
Dupuytren's nodules. 19 Treatment options were discussed with Plaintiff, including nonsteroidal antiinflammatory drugs and therapy; however, Plaintiff declined anti-inflammatory drugs? 0
See Tr. 237.
See Tr. 238.
See Tr. 237-38.
See Tr. 239.
See Tr. 241.
See Tr. 242.
On August 22, 2014, Dr. Panja found that Plaintiffs extremities were absent of deformities,
edema, erythema, or tremors. 21 Dr. Panja also recorded that there was no evidence ofneuropathy. 22
Additionally, although Plaintiff complained of feeling a bit depressed, Dr. Panja found no objective
evidence of anxiety or depression. 23 However, the doctor prescribed Plaintiff25 mg ofPaxil CR to
be taken daily? 4
Plaintiff was examined by Barbara Hall, Ph.D., on October 9, 2014, for his alleged anxiety
and depression. 25 Dr. Hall noted that Plaintiffs behavior was cooperative and that his speech was
spontaneous. 26 Dr. Hall found that while Plaintiffs mood was depressed and his thoughts were
centered on mental limitations, his thinking was coherent and his judgment and insight appeared to
be intact. 27 Plaintiffs intelligence appeared to be in the above-average range, and his concentration
was sufficient to complete serial 3 's to 70. 28 Concerning his memory, Dr. Hall noted that Plaintiff
could remember 1 of3 objects after 5 minutes and 4 numbers forward and 3 numbers backwards. 29
Dr. Hall diagnosed Plaintiff with depressive disorder and found that Plaintiffs prognosis might
improve with psychiatric treatment and psychotherapy. 30
See Tr. 355.
See Tr. 356.
See Tr. 355-56.
See Tr. 356.
See Tr. 246.
See Tr. 247.
See Tr. 248.
See Tr. 249.
On December 12, 2014, Dr. Prashanth Palwai examined Plaintiff after continued pain in his
hands and wrists. 31 Dr. Palwai noted swelling in the metacarpophalangeal (MCP) and proximal
interphalangeal (PIP) joints as well as moderate to severe synovitis. 32 Plaintiff was diagnosed with
unspecified inflammatory polyarthropathy and was prescribed leflunomide and prednisone. 33
On January 12,2015, Dr. Rosen examined Plaintiffs left hand after Plaintiff reported that
he fell and landed on glass that pierced the base of his hand near the radial aspect of the median
nerve. 34 After the injury, Plaintiff complained of hypersensitivity on the ulnar side of his left index
finger and the radial side of his left middle finger. Plaintiff also reported that he was dropping things
before the injury occurred. 35 The physical exam showed that Plaintiff was in no acute distress and
his pulses were normal in all four extremities; however, Dr. Rosen noted a scar on Plaintiffs left
hand palm and a decreased sensation in that hand. 36 Dr. Rosen examined Plaintiffs left wrist and
found mild tenderness and swelling as well as hypersensitivity between the index and middle
fingers. 37 Dr. Rosen noted that Plaintiffs left wrist was within a normal range of motion and x-rays
were negative for any acute fractures, dislocations, or bony abnormalities. 38 The diagnoses were left
See Tr. 275.
See Tr. 258.
See Tr. 259-60.
See Tr. 260.
See Tr. 260-61.
median nerve injury and peripheral nerve laceration/injury; common digital left; left carpal tunnel
syndrome; left cubital tunnel syndrome. 39
On January 14, 2015, Plaintiff was again examined by Dr. Palwai. 40 Plaintiffs extremities
were well perfused with no deformities, edema, or erythema. 41 Upon examination of the hands,
Dr. Palwai noted active synovitis in 2, 3 MCP and all PIP joints on the right hand. 42 Additionally,
lab results from January 7, 2015, indicated that Plaintiffs sedimentation rate was 2. 43 Dr. Palwai's
diagnosis was unspecified inflammatory polyarthropathy. 44
On April 16, 2015, Dr. Palwai examined Plaintiff for pain located in his hands and wrists. 45
Plaintiffs extremities were absent of deformities, edema, or erythema and were well perfused. 46
Dr. Palwai noted that Plaintiff had a small scar with tenderness on his left thenar eminence. 47
Plaintiff had some synovitis over left 3, 2 PIP joints, but they did not have much tendemess. 48
Dr. Palwai's assessment showed that Plaintiffs symptoms were consistent with seronegative
arthritis and diagnosed Plaintiff with unspecified inflammatory polyarthropathy. 49
See Tr. 261-62.
See Tr. 273.
See Tr. 302.
See Tr. 273.
See Tr. 288.
See Tr. 289.
On June 26, 2015, Dr. Panja recorded Plaintiffs complaints of feeling anxious and a bit
depressed. 50 Plaintiffs muscle tone and range of movements were normal, and his extremities
showed no deformities, edema, erythema, or tremors. 51
Plaintiffs deep tendon reflexes and
sensation were normal, and Dr. Panj a found no evidence of neuropathy. 52 Additionally, Plaintiff did
not find objective evidence of anxiety or depression. 53 Dr. Panja diagnosed Plaintiff with an
unspecified anxiety state and prescribed Lexapro. 54
Lastly, on July 21,2015, Dr. Palwai examined Plaintiff and noted his complaints of severe
pain in his right hand and right knee. 55 Plaintiff also complained that his left hand hurt. 56 It was
noted that Plaintiff was a recovering alcoholic and denied consuming alcohol. 57 Plaintiff noted that
a Medrol pack previously helped with 80% of symptoms. 5 8 Plaintiffs left thenar eminence had a
small scar with tenderness, and Dr. Palwai noted that there was no synovitis over his right 3, 2 PIP
joints. 59 Plaintiffs left thenar eminence was not tender. 60 Plaintiffs right knee was tender over the
See Tr. 348.
See Tr. 349.
See Tr. 284.
See Tr. 285.
medial margin, but there was no sign offluid. 61 Dr. Palwai again found that Plaintiffs symptoms
were consistent with seronegative rheumatoid arthritis and diagnosed him with unspecified
inflammatory polyarthropathy. 62
Application to Social Security Administration
Plaintiff applied for Social Security benefits on July 18, 2014, 63 claiming an inability to work
since October 1, 2013. 64 On July 24, 2014, Plaintiff claimed on his Disability Report that diabetes,
arthritis, COPD/asthma, high blood pressure, anxiety, right shoulder, and depression limited his
ability to work. 65
On August 11, 2014, Plaintiff completed a Work History Report. 66 Plaintiff stated that he
first worked as an institutional trust benefit specialist from September of 1981 to May of 2003, and
as a trust operations specialist from September of2004 to October of2013. 67 As an institutional
trust benefit specialist, Plaintiff said that he "disbursed monthly pension payments, posted
co [mpany] contributions, set up 1099-R info[ rmation] for 401 K distributions, monitored daily cash
[and] overdraft reports, processed client directives, processed transfers, [and] mutual funds for
regional office. " 68 He also indicated that he wrote, typed, and handled small objects for 8 hours each
See Tr. 285.
See Tr. 154-58.
See Tr. 182.
See Tr. 190.
day and was not a supervisor or lead worker. 69 As a trust operations specialist, Plaintiff"processed
daily ACHs [and] incoming [and] outgoing wire transfers, processed all cash entries in SEI trust
system, verified fund availability for money m[ ar]k[e]t funds, pend daily trades in trust system,
processed note/liability payments." 70 Additionally, Plaintiff indicated that he wrote, typed, and
handled small objects for 8 hours each day and was not a lead worker. 71
On August 14, 2014, Plaintiff completed a Function Report. Plaintiff stated that anxiety
limited his ability to work and noted that anxiety made it hard for him to finish projects. 72 He stated
that he had anxiety attacks that kept him awake at night. 73 Plaintiff also noted that he used a
chalkboard to write himself reminders to take his medicine; however, he answered that he did not
need any special reminders to take care of other personal needs or grooming. 74 Plaintiff recorded
that he was able to pay bills, count change, and handle a savings account but noted that he
sometimes had difficulty counting and calculating change. 75 Additionally, Plaintiff stated that his
conditions affected his concentration, ability to complete tasks, memory, ability to follow
instructions, and understanding. 76 However, Plaintiff indicated that his conditions did not limit his
ability to sit. 77 Plaintiff recorded that he could pay attention for about 10 minutes and that he was
See Tr. 192.
See Tr. 196.
See Tr. 197.
See Tr. 198.
See Tr. 199-200.
See Tr. 201.
very poor at following written instructions and had some difficulty following spoken instructions
because of the concentration required. 78
The Social Security Administration denied Plaintiffs application at the initial and
reconsideration levels. 79 Plaintiff requested a hearing before an administrative law judge (ALJ) of
the Social Security Administration. 80 The ALJ granted Plaintiffs request 81 and conducted a hearing
on October 19,2015, in Houston, Texas. 82
Plaintiff, a vocational expert (Susan Rapant), and a medical expert (Dr. Steven Goldstein)
testified at the hearing. Plaintiff was represented by an attorney, Angela Richard.
Plaintiffs theory of disability was unspecified polyarthropathies in his hands and
depression. 83 At the hearing, Plaintiff testified that he was let go from his last job because he was
not following instructions properly. 84 Plaintiff explained that he was unable to remember the steps
in certain procedures even though he had performed them for nine years. 85 He stated, "All of a
sudden it just didn't stick with me. It's -- I'm very forgetful, lack of memory I would say." 86
Plaintiff also referenced a fog in his brain that prevented him from concentrating- "It's like tunnel
See Tr. 72; 78.
See Tr. 81.
See Tr. 10-33.
See Tr. 16.
See Tr. 19.
vision to me. I mean no matter how much I try to concentrate it just don't happen." 87 Plaintiff stated
that the pain in his hands while working was not as severe as the pain at the time of the hearing,
reiterating the reason he lost his job was his lack of concentration. 88 When asked by the ALJ
whether he could still do his past work if his mental state was better, Plaintiff answered that he
Relating to Plaintiffs depression and medication, Plaintiff stated that his most recent
medication, Lexapro, was helping a little. 90 He noted that Paxil, which he had been taking since
2002, stopped working for him, and he felt a "little bit uncomfortable with it."91 Consequently,
Dr. Panja prescribed the new medication, and Plaintiff stated that "it does good like the Paxil how
it was before."92 However, Plaintiff noted that his "brain fog is still the same." 93
The medical expert, Dr. Stephen Goldstein, testified at the hearing. 94 Using medical
evidence provided by other doctors, Dr. Goldstein diagnosed Plaintiff with osteoarthritis in his hand,
Dupuytren's contractions, and diabetes. 95 He stated that he thought Plaintiff would be limited in the
use of his hands for fine activities, such as typing. 96
See Tr. 24.
See Tr. 21.
See Tr. 24.
See Tr. 25-26.
See Tr. 27.
The vocational expert, Susan Rapant, also testified at the hearing. 97 She testified that
Plaintiff previously worked as an employee benefits specialist, which is DOT 166.167-018, and as
a trust operations specialist, which is DOT 169.167-014. 98 The ALJ then asked the vocational expert
a hypothetical question about Plaintiffs ability to perform previous jobs given certain limitations,
including "occasional fingering." 99 She responded that the employee benefits specialist position was
the only job that would fit the fingering requirement because the trust operations position required
"frequent fingering." 10° Furthermore, the vocational expert stated Plaintiff would be able to perform
the position both as "actually" and "customarily" performed. 101
The vocational expert later
confirmed that the only job in the national economy Plaintiff was capable of performing given the
limitations previously stated by the ALJ was the employee benefits specialist position. 102 Plaintiffs
counsel did not challenge the expert's characterization of Plaintiffs previous job or the testimony
about Plaintiffs ability to perform past relevant work. 103
On November 6, 2015, the ALJ issued an unfavorable decision. 104 The ALJ found that
Plaintiff met insured status requirements through December 31, 2018, and that Plaintiff had not
engaged in substantial gainful activity since October 1, 2013, the alleged onset date. 105
See Tr. 28.
See Tr. 29.
See Tr. 29-30.
See Tr. 30.
See Tr. 30-31.
See Tr. 52-64.
See Tr. 57.
The ALJ recognized the following impairments as severe: "osteoarthritis of the bilateral
hands, Dupuytren's contractions, and diabetes mellitus." 106 The ALJ found that Plaintiffs severe
impairments, individually or collectively, did not meet or medically equal the severity of one of the
listed impairments in the regulations. 107
After making these findings, the ALJ assessed Plaintiffs residual functional capacity (RFC)
to do work-related activities. The ALJ considered all symptoms to the extent the symptoms could
reasonably be accepted as consistent with the objective medical evidence and other evidence. 108 The
ALJ found that Plaintiffhas the RFC to perform light work as defined in 20 C.F.R. § 404.1567(b),
except that the claimant can lift and/or carry 20 pounds occasionally and 10 pounds frequently. 109
The ALJ found that Plaintiff could stand or walk six hours in an eight-hour workday but for no more
than one hour at a time, sit without any limitation, occasionally finger, and frequently handle. 110 In
reaching this conclusion, the ALJ provided a detailed summary of the relevant medical evidence
regarding Plaintiffs impairments, and an explanation of his assessment of the medical evidence and
the credibility ofPlaintiff s subjective complaints. 111 The ALJ found that Plaintiffs allegations were
not supported by the medical evidence and, thus, the ALJ granted "little probative weight" to
Plaintiffs testimony. 112
20 C.F.R. Pt. 404, Subpt. P, App. 1; see Tr. 59.
See Tr. 59
See Tr. 59-63.
Having determined Plaintiffs RFC, the ALJ then addressed whether Plaintiff was capable
of performing his past relevant work as an employee benefits specialist or trust operations
specialist. 113 The ALJ relied on the vocational expert's testimony about the demands of Plaintiffs
past relevant work. The ALJ compared those demands with Plaintiffs RFC and found that Plaintiff
was capable of performing the employee benefits specialist position as it was actually and generally
performed. 114 Because Plaintiff was capable of performing the employee benefits specialist position,
the ALJ found that Plaintiffhad not been under a disability from October 1, 2013, through the date
ofthe decision. 115
Plaintiff appealed the ALJ' s decision, and the Appeals Council denied Plaintiffs request on
March 10, 2016, thereby transforming the ALJ' s decision into the final decision of the
Commissioner. 116 After receiving the Appeal Council's denial, Plaintiff filed the instant action. 117
II. Standard of Review
Summary judgment is proper if the movant establishes that there is no genuine dispute about
any material fact and is entitled to judgment as a matter oflaw. See FED. R. Crv. P. 56( a). A factual
dispute is "genuine" when a "reasonable jury could return a verdict for the nonmoving party."
Anderson v. Liberty Lobby, Inc., 106 S. Ct. 2505, 2510 (1986). The substantive law will identify
which facts are "material" because "[o]nly disputes over facts that might affect the outcome of the
See Tr. 63-64.
See Tr. 1-3.
See Docket Entry No. 1, Pl.'s Camp.
suit under the governing law will properly preclude the entry of summary judgment." ld. Although
the court considers the evidence and all reasonable inferences to be drawn in the light most favorable
to the nonmovant, "the nonmoving party may not rest on the mere allegations or denials of its
pleadings, but must respond by setting forth specific facts indicating a genuine issue for trial."
McAllister v. Resolution Trust Corp., 201 F.3d 570, 574-75 (5th Cir. 2000).
The court's review of a final decision by the Commissioner denying disability benefits is
"limited to two inquiries: (1) whether the decision is supported by substantial evidence on the record
as a whole, and (2) whether the Commissioner applied the proper legal standard." Copeland v.
Colvin, 771 F.3d 920, 923 (5th Cir. 2014) (quoting Perez v. Barnhart, 415 F.3d 457, 461 (5th Cir.
2005)). Substantial evidence is "more than a mere scintilla and less than a preponderance." Id. It
is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."
Perez, 415 F.3d at 461 (quoting Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994)). "In
applying the substantial evidence standard, the court scrutinizes the record to determine whether
such evidence is present, but may not reweigh the evidence or substitute its judgment for the
Commissioner's." Id. "Conflicts of evidence are for the Commissioner, not the courts, to resolve."
Id. (quoting Masterson v. Barnhart, 309 F.3d 267, 272 (5th Cir. 2002)).
Standard for Entitlement to Social Security Benefits
The plaintiff has the burden of proving a medically determinable physical or mental
impairment lasting at least twelve months that prevents the plaintiff from engaging in substantial
gainful activity. See 42 U.S.C. § 423(d)(l)(A); Newton v. Apfel, 209 F.3d 448,452 (5th Cir. 2000).
"Substantial gainful activity is defined as work activity involving significant physical or mental
abilities for pay or profit." Newton, 209 F.3d at 452; see also 20 C.F.R. § 404.1572(a) and (b)
In determining disability, the Commissioner, through the ALJ, works through a five-step
sequential evaluation process. 20 C.F.R. § 416.920 (2017). The plaintiff bears the burden of proof
on the first four steps and the burden shifts to the Commissioner for the fifth step. Newton, 209 F .3d
at 453; see also 20 C.F.R. § 404.1520(e) (2017). First, the plaintiff must prove he is not currently
engaged in substantial gainful activity. 20 C.F.R. § 416.920(b) (2017). Second, the plaintiff must
prove that his impairment is "severe" in that it "significantly limits [his] physical or mental ability
to do basic work activities ... " 20 C.F.R. § 416.920(c) (2017). At Step Three, the ALJ must find
the plaintiff disabled if he proves that his impairments meet or are medically equivalent to one of
the impairments listed in appendix 1. 20 C.F.R. § 416.920(d) (2017). Fourth, the plaintiffbears the
burden of proving he is incapable of meeting the physical and mental demands ofhis past relevant
work. 20 C.F.R. § 416.920(f) (2017). If the plaintiff is successful at all four ofthese steps, the
burden shifts to the Commissioner to prove, considering the plaintiffs residual functional capacity,
age, education, and past work experience, that he is capable of performing other work. 20 C.F.R.
§ 416.920(g)( 1) (20 17). If the Commissioner proves other work exists that the plaintiff can perform,
the plaintiff is given the chance to prove that he cannot, in fact, perform that work. Muse v.
Sullivan, 925 F.2d 785, 789 (5th Cir. 1991).
Plaintiff alleges that the ALJ' s RFC findings are not supported by substantial evidence and
that the ALJ's Step Four denial is not supported by substantial evidence. Defendant argues that the
ALJ' s decision applied the correct legal standards and is supported by substantial evidence.
Plaintiff's Residual Functional Capacity
The ALJ found that Plaintiff had the RFC to perform light work as defined in 20 C.F.R.
§ 404.1567(b ), except that Plaintiff can lift and/or carry 20 pounds occasionally and 10 pounds
frequently. 118 The ALJ also found that Plaintiff could stand or walk six hours in an eight-hour
workday but for no more than one hour at a time, sit without any limitation, occasionally finger, and
frequently handle. 119 Plaintiff argues that the ALJ's RFC findings are not supported by substantial
evidence because the ALJ erred by not considering the effect of Plaintiffs non-severe mental
impairments in the RFC finding. Defendant argues that the ALJ considered the objective medical
evidence -- pointing out references made by the ALJ to doctor assessments -- and evaluated
Plaintiffs functioning. The court concludes that substantial evidence supports the ALJ's RFC
determination because the ALJ properly considered the effect of Plaintiffs non-severe mental
Residual functional capacity is the most a claimant is capable of doing in a work setting
given the claimant's physical and mental limitations that are caused by impairments and related
symptoms. 20 C.F.R. § 404.1545(a)(l) (2017). All of the claimant's medically determinable
impairments, including medically determinable impairments that are not "severe," are considered
when assessing the claimant's RFC. 20 C.F.R. § 404.1545(a)(2) (2017). A plaintiffs symptoms
diminish his capacity for basic work activities only "to the extent that [the] alleged functional
limitations and restrictions due to symptoms, such as pain, can reasonably be accepted as consistent
with the objective medical evidence and other evidence." 20 C.F.R. § 404.1529(c)(4) (2017).
See Tr. 59.
Contrary to Plaintiffs argument the ALJ acknowledged and considered Plaintiffs testimony
about his mental limitations, such as depression and anxiety, as well as objective medical evidence
from three treating doctors.
The ALJ considered Plaintiffs testimony that he experienced
depression and was terminated in 2013 due to difficulty following instructions. 120 The ALJ also
considered Plaintiffs statements about his forgetfulness and lack ofmemory. 121 The ALJ found that
these statements were "not entirely credible" because they were not supported by the laboratory
findings or the medical record as a whole. 122 The ALJ noted Plaintiffs testimony that he had
received mental health treatment via his primary care physician and that the medications prescribed
to him alleviated his depressive symptoms. 123 The ALJ also noted that the examinations of Plaintiff
have consistently shown no evidence of a functional loss and that Plaintiff has remained alert and
oriented, with an intact ability to concentrate. 124 Consequently, the ALJ found that Plaintiffs
allegations were not corroborated in the overall record and, thus, "considered but granted little
probative weight to [Plaintiffs] testimony." 125
The ALJ referred to the psychological examination performed by Dr. Barbara Hall on
October 9, 2014. 126 The ALJ noted that Plaintiffs thinking was coherent and his intelligence was
in the above-average range. 127 Additionally, the ALJ noted that Plaintiffs memory, insight, and
See Tr. 60.
See Tr. 60-63.
See Tr. 61.
judgment were all intact. 128 Dr. Hall diagnosed Plaintiff with depressive disorder, 129 which the ALJ
gave great weight because it was consistent with medical evidence that showed Plaintiffs primary
care physician had treated him for depression and anxiety without evidence of functional loss. 130
The ALJ referred to the examination performed by Dr. Alan Rosen on January 12, 2015,
which noted that Plaintiff had a normal mood, attention span, and concentration. 131 The ALJ also
referenced the June 2015 examination by Dr. Panja, which showed no objective evidence of
depression or anxiety. 132 Although the ALJ did not reference them, other examinations performed
by Dr. Panja from January 5, 2012, to August 22, 2014, stated that Plaintiff never exhibited evidence
of depression or anxiety. 133
Plaintiff also argues that the RFC assessment was in error because the ALJ found at Step
Two that Plaintiffs non-severe mental limitations contributed to "mild restrictions." However, the
RFC assessment is separate and distinct from the severity inquiry at Step Two. See Gutierrez v.
Barnhart, No. 04-11025, 2005 WL 1994289, at *9 (5th Cir. Aug. 19, 2005) (per curiam)
(unpublished) ("A claimant is not entitled to Social Security disability benefits merely upon a
showing that (s)he has a severe disability. Rather, the disability must make it so that the claimant
cannot work to entitle the claimant to disability benefits."); Suttles v. Colvin, 543 F. App'x 824, 826
(lOth Cir. 2013) (holding that "mental limitations noted in the threshold inquiry at steps two and
three do not apply at later steps"). The ALJ stated in the Step Two analysis that the mild limitations
See Tr. 249.
See Tr. 61.
See Tr. 61-62; 260.
See Tr. 62; 314.
See Tr. 346-58.
"are not a residual functional capacity assessment but are used to rate the severity of mental
impairments at steps 2 and 3 ofthe sequential evaluation process. The mental residual functional
capacity assessment used at steps 4 and 5 of the sequential evaluation process requires a more
detailed assessment. .. " 134 Thus, the RFC finding does not necessarily need to coincide with the Step
Two finding as long as the underlying mental impairment is considered.
Given the ALl's extensive discussion of Plaintiffs testimony -- which was found not
credible because it was unsupported by the objective medical evidence-- and the medical record
regarding Plaintiffs mental impairments, the court concludes that the ALJ properly considered the
effect of Plaintiffs non-severe mental impairments in the RFC analysis. The ALJ also made an
appropriate RFC assessment that was distinct from the Step Two analysis while still considering the
underlying mental impairment. Under the appropriate standard of review the court finds that
medical evidence constitutes substantial evidence supporting the ALJ' s RFC finding that Plaintiff
does not suffer from a limitation resulting from his mental impairments.
Substantial Evidence Supports the ALJ's Step Four Denial
After comparing Plaintiffs RFC with the mental and physical demands ofhis past relevant
work, the ALJ held that Plaintiff is able to perform the employee benefits specialist position as it
was both actually and generally performed. This court concludes that substantial evidence supports
the ALJ' s decision.
At Step Four the RFC must be compared to the demands of the plaintiffs past relevant work
to determine whether the plaintiff is capable of performing that work. 20 C.P.R. § 404.1560(b)
(20 17). Past relevant work is defined as work that the claimant has done in the past 15 years, that
was substantial gainful activity, and that lasted long enough for you to learn to do it. 20 C.P.R.
§ 404.1560(b) (20 17). If the plaintiff can perform past relevant work, either "as-actually-performed"
or "as-generally-performed," a denial of benefits at Step Four is appropriate. 20 C.P.R.
§ 404.1560(b )(2)-(3) (20 17).
Past Relevant Work As-Actually-Performed
Plaintiff argues that he is not able to perform past relevant work as-actually-performed
because the requirements ofhis past job exceed his occasional fingering limitation. See SSR 96-9p,
1996 WL 374185, at *3 ("occasional" is defined as "occurring from very little up to 113 of the
time"). Plaintiff contends that the only information regarding his past job as an employee benefits
specialist was the Work History Report, which showed that the job required more than occasional
fingering. Plaintiff also argues that the vocational expert never testified that Plaintiff could return
to his job as-actually-performed. Defendant argues that the Work History Report fails to specify
how many hours Plaintiff spent performing fingering activities as compared to handling small
objects. Defendant argues that the vocational expert's unchallenged testimony establishes that
Plaintiff could perform his past relevant work as-actually-performed.
In determining whether the claimant can perform past relevant work, the claimant's RFC is
compared with the physical and mental demands of his previous work. 20 C.P.R.§ 404.1560(b)
(2017). Information about the claimant's previous workmay be obtained through the claimant, a
vocational expert, or a vocational resource. Id. While an ALJ has a duty to make a sufficient
inquiry into a claim, it is an applicant's burden to prove an inability to perform former work. Villa
v. Sullivan, 895 F.2d 1019, 1023 (5th Cir. 1990) (citations omitted). This burden extends to the
exertional requirements of the claimant's past relevant work. Id.
The Work History Report indicated that Plaintiff performed 8 hours of writing, typing, or
handling small objects each 8-hour workday as an employee benefits specialist. 135 Writing, typing,
or handling small objects can consist of two different types of non-exertional activities: fingering
and handling. Because the report does not distinguish how many hours Plaintiff spent doing each
activity, the Work History Report does not prove that Plaintiffs past job required more than
occasional fingering. Plaintiff did not provide other evidence or testimony regarding his previous
job's fingering requirement. Thus, the evidence in the record does not show that the requirements
of Plaintiffs past job exceed his limitation of only occasional fingering.
Plaintiff also argues that the vocational expert never testified that Plaintiff could perform his
previous job as-actually-performed. A vocational expert may offer relevant evidence within his or
her expertise or knowledge concerning the physical and mental demands of a claimant's past
relevant work as-actually-performed. 20 C.F .R. § 404.1560(b)(2) (20 17). A vocational expert may
also offer expert opinion testimony in response to a hypothetical question about whether a person
with the physical and mental limitations imposed by the claimant's medical impairments can meet
the demands of the claimant's previous work as-actually-performed. Id.
The ALJ presented the vocational expert with hypothetical questions about whether a person
with the physical limitations imposed by Plaintiffs medical impairments can meet the demands of
the employee benefits specialist position, and the vocational expert answered that a person with
Plaintiffs impairments could perform that position as-actually-performed. 136 This testimony was
not challenged by Plaintiffs counsel.
Given the absence of record evidence that Plaintiffs actual job duties required more than
occasional fingering and the vocational expert's unchallenged testimony that Plaintiff could perform
See Tr. 191.
See Tr. 29-30.
his past relevant work as-actually-performed, the court concludes that substantial evidence supports
the ALJ' s finding that Plaintiff could perform the employee benefits specialist position as-actuallyperformed.
Past Relevant Work As-Generally-Performed
Plaintiff argues that the vocational expert erroneously identified Plaintiffs past job in the
Dictionary of Occupational Titles (DOT), which the ALJ relied on to find that Plaintiff is capable
of performing past relevant work as-generally-performed. Plaintiff contends that the job identified
by the vocational expert, DOT Code 166.167-018, is that of a manager and does not describe
Plaintiffs previous job. Plaintiff provides two alternative DOT Codes, which he contends more
closely match the duties he described, and requests the case be remanded for further vocational
testimony. Defendant argues that Plaintiff had an opportunity to question the vocational expert at
the hearing, but he chose only to ask a question about the effect of a mental impairment on his
ability to perform the job. Accordingly, Defendant argues that when a Plaintiff offers no evidence
contrary to the vocational expert's testimony, he fails to show that he cannot perform the job cited
by the vocational expert.
In determining whether the claimant can perform past relevant work, information about the
claimant's previous work may be obtained through the claimant, a vocational expert, or a vocational
resource, such as the "Dictionary of Occupational Titles" published by the Department of Labor.
20 C.F .R. § 404.1560(b )(2) (20 17). A vocational expert may offer expert opinion testimony in
response to a hypothetical question about whether a person with the physical and mental limitations
imposed by the claimant's medical impairments can meet the demands of the claimant's previous
work as-generally-performed. ld. A vocational expert is valuable because "he is familiar with the
specific requirements of a particular occupation, including working conditions and the attributes and
skills needed." Fields v. Bowen, 805 F.2d 1168, 1170 (5th Cir. 1986).
The vocational expert reviewed Plaintiffs vocational evidence and identified the employee
benefits specialist position as DOT 166.167-018. 137 The vocational expert described the physical
demands from that job; and, in response to the ALJ's hypothetical questions, the vocational expert
testified that a person with Plaintiffs impairments could perform the employee benefits specialist
position as-generally-performed. 138 If Plaintiff, who was represented by counsel at the hearing,
believed there was a discrepancy between his prior work and the DOT Code identified by the
vocational expert, the inconsistency should have been addressed during cross-examination of the
vocational expert. See Bryant v. Astrue, Civil Action No. 09-1499,2010 WL 3541097, at *5 (W.D.
La. July 30, 2010) (unpublished) ("[I]f plaintiff harbored any doubts concerning the [vocational
expert]'s characterization of his prior work, plaintiff was obliged to emphasize the alleged
inconsistency and to press the issue upon cross-examination"). However, counsel failed to raise the
issue or challenge the vocational expert's characterization of Plaintiffs past work. 139 While an ALJ
has a duty to make a sufficient inquiry into a claim, it is an applicant's burden to prove an inability
to perform former work. Villa, 895 F.2d at 1023 (citations omitted). Moreover, whether a more
accurate DOT Code exists for Plaintiffs previous job is not a determination for this court to make.
This court's review is limited to whether the ALJ' s decision is supported by substantial
evidence on the record as a whole and whether the Commissioner applied the proper legal standard.
Copeland, 771 F.3d at 923 (quoting Perez, 415 F.3d at 461). The ALJ may properly rely on the
vocational expert's testimony if the hypothetical question presented to the vocational expert
See Tr. 28-29.
See Tr. 29-30.
See Tr. 30-31.
incorporates reasonably all disabilities recognized by the ALJ and the claimant is afforded the
opportunity to correct deficiencies in the ALJ's question. Boyd v. Apfel, 239 F.3d 698, 706-707
(5th Cir. 2001); Bowling v. Shalala, 36 F.3d 431,436 (5th Cir. 1994). The hypothetical question
must take "into account all the restrictions reasonably warranted by the evidence." Domingue v.
Barnhart, 388 F.3d 462,463 (5th Cir. 2004). If the hypothetical question meets the criteria, then the
ALJ may justifiably rely on the vocational expert's testimony in deciding job availability for a
person with the plaintiffs limitations. Masterson v. Barnhart, 309 F.3d 267,273-74 (5th Cir. 2002).
Given the absence of record evidence proving Plaintiffs inability to perform previous work and the
vocational expert's unchallenged testimony that a person with Plaintiffs impairments could perform
the employee benefits specialist position as-generally-performed, the court concludes that substantial
evidence supports the ALJ's finding that Plaintiff could perform the employee benefits specialist
IV. Conclusions and Order
In sum, the record provides substantial evidence supporting the Commissioner's decision
that Plaintiff is not disabled. Therefore, IT IS ORDERED that Plaintiffs Motion for Summary
Judgment (Docket Entry No. 10) is DENIED. It is further ORDERED that Defendant's CrossMotion for Summary Judgment (Docket Entry No. 12) is GRANTED. It is further ORDERED that
the Commissioner's decision is AFFIRMED.
SIGNED at Houston, Texas, on this the 28th day of June, 2017.
UNITED STATES DISTRICT JUDGE
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