Lerma v. Colvin

Filing 16

MEMORANDUM AND ORDER granting 12 Defendant's MOTION for Summary Judgment , and denying 13 Plaintiff's MOTION for Summary Judgment (Signed by Magistrate Judge Mary Milloy) Parties notified.(cjan, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
AURORA LERMA,

Plaintiff,
vs.
NANCY A. BERRYHILL,
ACTING COMMISSIONER OF
SOCIAL SECURITY ADMINISTRATION,
Defendant.

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June 12, 2017
David J. Bradley, Clerk

CIVIL ACTION NO. 4:16-CV-01281

MEMORANDUM AND ORDER ON
CROSS-MOTIONS FOR SUMMARY JUDGMENT
On July 12, 2016, the parties consented to proceed before a United States magistrate judge
for all purposes, including the entry of a final judgment under 28 U.S.C. § 636(c). (Docket Entry
#9). The case was then transferred to this court. Cross-motions for summary judgment have been
filed by Plaintiff Aurora Lerma (“Plaintiff,” “Lerma”), and by Defendant Nancy A. Berryhill
(“Defendant,” “Commissioner”), in her capacity as Acting Commissioner of the Social Security
Administration (“SSA”). (Plaintiff’s Motion for Summary Judgment, Docket Entry #13; Plaintiff’s
Brief in Support of Motion for Summary Judgment [“Plaintiff’s Motion”], Docket Entry #14;
Defendant’s Motion for Summary Judgment, Memorandum in Support of Defendant’s Cross
Motion for Summary Judgment [“Defendant’s Motion”], Docket Entry #12). Defendant has
responded. (Defendant’s Response in Opposition to Plaintiff’s Motion for Summary Judgment
[“Defendant’s Response”], Docket Entry #15). After considering the pleadings, the evidence
submitted, and the applicable law, it is ORDERED that Defendant’s motion is GRANTED, and that
Plaintiff’s motion is DENIED.

Background
On February 1, 2013, Plaintiff Aurora Lerma filed an application for Social Security
Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act (“the Act”).
(Administrative Transcript [“Tr.”] at 202-09). On February 18, 2013, she filed an application for
Supplemental Security Income (“SSI”) benefits, under Title XVI of the Act. (Tr. at 210-15). Lerma
claimed that she had been unable to work since January 1, 2007, due to high blood pressure, high
cholesterol, diabetes, anxiety, depression, and insomnia. (Tr. at 202, 229). On July 17, 2012, the
Commissioner denied her applications for benefits. (Tr. at 8, 46-47, 103-10). Plaintiff petitioned for
a reconsideration of that decision, but her applications were again denied, on November 5, 2013. (Tr.
at 97-98, 111-15, 123-28).
On November 20, 2013, Lerma successfully requested a hearing before an administrative law
judge [“ALJ”]. (Tr. at 116-20). That hearing, before ALJ Thomas Norman, took place on September
23, 2014. (Tr. at 25-45). Plaintiff appeared with her attorney, Patricia Olivares [“Ms. Olivares”], and
she testified in her own behalf. (Tr. 27-40). The ALJ also heard testimony from Mr. Herman Litt,
[“Mr. Litt”], a vocational expert witness, and Dr. Nancy Tarrand [“Dr. Tarrand”], a medical expert.
(Tr. at 40-44).
Following the hearing, the ALJ engaged in the following five-step, sequential analysis to
determine whether Plaintiff was capable of performing substantial gainful activity or was, in fact,
disabled:
1.

An individual who is working or engaging in substantial gainful activity will
not be found disabled regardless of the medical findings. 20 C.F.R.
§§ 404.1520(b) and 416.920(b).

2.

An individual who does not have a “severe impairment” will not be found to
be disabled. 20 C.F.R. §§ 404.1520(c) and 416.920(c).
2

3.

An individual who “meets or equals a listed impairment in Appendix 1” of
the regulations will not be considered disabled without consideration of
vocational factors. 20 C.F.R. §§ 404.1520(d) and 416.920(d).

4.

If an individual is capable of performing the work she has done in the past,
a finding of “not disabled” must be made. 20 C.F.R. §§ 404.1520(f) and
416.920(f).

5.

If an individual’s impairment precludes performance of her past work, then
other factors, including age, education, past work experience, and residual
functional capacity must be considered to determine if any work can be
performed. 20 C.F.R. §§ 404.1520(g) and 416.920(g).

Newton v. Apfel, 209 F.3d 448, 453 (5th Cir. 2000); Martinez v. Chater, 64 F.3d 172, 173-74 (5th Cir.
1995); Muse v. Sullivan, 925 F.2d 785, 789 (5th Cir. 1991); Wren v. Sullivan, 925 F.2d 123, 125 (5th
Cir. 1991); Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir. 1988). It is well-settled that, under this
analysis, Lerma has the burden to prove any disability that is relevant to the first four steps. Wren,
925 F.2d at 125. If she is successful, the burden then shifts to the Commissioner, at step five, to
show that she is able to perform other work that exists in the national economy. Myers v. Apfel, 238
F.3d 617, 619 (5th Cir. 2001); Wren, 925 F.2d at 125. “A finding that a claimant is disabled or is not
disabled at any point in the five-step review is conclusive and terminates the analysis.” Lovelace
v. Bowen, 813 F.2d 55, 58 (5th Cir. 1987).
It must be emphasized that the mere presence of an impairment does not necessarily establish
a disability. Anthony v. Sullivan, 954 F.2d 289, 293 (5th Cir. 1992) (quoting Milam v. Bowen, 782
F.2d 1284, 1286 (5th Cir. 1986)). An individual claiming SSI benefits under the Act has the burden
to prove that she suffers from a disability. Johnson v. Bowen, 864 F.2d 340, 343 (5th Cir. 1988);
Cook v. Heckler, 750 F.2d 391, 393 (5th Cir. 1985). Under the Act, a claimant is deemed disabled
only if she demonstrates an “inability to engage in any substantial gainful activity by reason of any

3

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 twelve months.”
Selders v. Sullivan, 914 F.2d 614, 618 (5th Cir. 1990) (citing 42 U.S.C. § 423(d)(1)(A)). Substantial
gainful activity is defined as “work activity involving significant physical or mental abilities for pay
or profit.” Newton, 209 F.3d at 452. A physical or mental impairment is “an impairment that results
from anatomical, physiological or psychological abnormalities which are demonstrable by medically
acceptable clinical and laboratory diagnostic techniques.” Hames v. Heckler, 707 F.2d 162, 165 (5th
Cir. 1983) (citing 42 U.S.C. § 423(d)(3)). Further, the impairment must be so severe as to limit the
claimant so that “she is not only unable to do her previous work but cannot, considering her age,
education, and work experience, engage in any kind of substantial gainful work which exists in the
national economy.” Greenspan, 38 F.3d at 236 (citing 42 U.S.C. § 423(d)(2)(A)).
Based on these principles, as well as his review of the evidence presented at the hearing, the
ALJ determined that Plaintiff has not “engaged in substantial gainful activity” since January 1,
2007.1 (Tr. at 10). The ALJ further concluded that Lerma suffers from degenerative joint disease in
her right knee, major depressive disorder, post-traumatic stress disorder, diabetes, hypertension, and
morbid obesity. (Id.). Although he determined that these impairments are severe, he concluded,
ultimately, that Plaintiff’s impairments do not meet, or equal in severity, the medical criteria for any
disabling impairment in the applicable SSA regulations.2 (Tr. at 11). He also found that Plaintiff’s

1

The ALJ noted that Plaintiff maintains part-time employment, but found that her earnings do not rise to the
level of substantial gainful activity. (Tr. at 10). He also noted that, although Plaintiff alleged a disability onset date of
January 1, 2007, the earliest medical records are dated July 6, 2010, which precludes a disability finding prior to that
date. (Tr. at 11).
2

A claimant is presumed to be “disabled” if her impairments meet, or equal in severity, a condition that is
listed in the appendix to the Social Security regulations. Falco v. Shalala, 27 F.3d 160, 162 (5th Cir. 1994).

4

medically determinable hepatic lobe3 mass, gallstones, and hyperlipidemia4 are not severe
impairments, because the medical records showed that neither the liver mass, nor the gallstones,
affected her ability to work. (Id.). The ALJ then assessed Lerma’s residual functional capacity
(“RFC”), and found that:
The claimant has the [RFC] to perform light work[,] as defined in 20 CFR [§§]
404.1567(b) and 416.967(b)[,] [with an ability to] lift and carry 20 pounds
occasionally and 10 pounds frequently[,] sit for about six hours out of an eight-hour
workday[,] and stand and walk for six hours out of an eight-hour workday[,] except
she cannot climb ladders[,] ropes[,] or scaffolds. She can occasionally climb ramps
and stairs[, as well as] kneel and crawl. [She] can understand, remember, and carry
out simple instructions; make simple work-related decisions; and respond
appropriately to supervis[ors], co-workers, [the] public and [typical] work situations.
She is able to handle changes in [her] work routine [] and [maintain] concentrat[ion]
for extended periods.
(Tr. at 13). Based on the medical records, and the testimony from Mr. Litt and Dr. Tarrand, the ALJ
determined that Lerma is capable of performing her past relevant work as a sales attendant. (Tr. at
16). For that reason, the ALJ concluded that Plaintiff is “not [] under a ‘disability,’ as defined in the
Act,” and he denied her applications for benefits. (Tr. at 17).
On January 8, 2015, Plaintiff requested an Appeals Council review of the ALJ’s decision.
(Tr. at 22). SSA regulations provide that the Appeals Council will grant a request for a review if any
of the following circumstances is present: “(1) there is an apparent abuse of discretion by the ALJ;
(2) an error of law has been made; (3) the ALJ’s action, findings, or conclusions are not supported
by substantial evidence; or (4) there is a broad policy issue which may affect the public interest.”
20 C.F.R. §§ 404.970 and 416.1470. On March 10, 2016, the Appeals Council denied her request

3

The “hepatic lobes” are the large divisions of the liver: caudate, quadrate, left, and right. MOSBY’S
MEDICAL, NURSING, & ALLIED HEALTH DICTIONARY, 752 (5th ed. 1998).
4

“Hyperlipidemia” is an excessive level of blood fats, which is usually caused by a lipoprotein lapse
deficiency or a defect in the conversion of low-density lipoprotein to high density lipoprotein. Id. at 791.

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for review, concluding that no reason for review existed under the regulations. (Tr. at 1-4).With that
ruling, the ALJ’s findings became final. See 20 C.F.R. §§ 404.984(b)(2) and 416.1484(b)(2). On
May 3, 2016, Plaintiff filed this lawsuit, pursuant to section 205(g) of the Act (codified as amended
at 42 U.S.C. § 405(g)), to challenge that decision. (Docket Entry #1). Subsequently, the parties filed
cross-motions for summary judgment. Having considered the pleadings, the evidence submitted, and
the applicable law, it is ordered that Defendant’s motion is granted, and that Plaintiff’s motion is
denied.
Standard of Review
Federal courts review the Commissioner’s denial of disability benefits only to ascertain
whether the final decision is supported by substantial evidence and whether the proper legal
standards were applied. See Randall v. Astrue, 570 F.3d 651, 655 (5th Cir. 2009); Newton, 209 F.3d
at 452 (citing Brown v. Apfel, 192 F.3d 492, 496 (5th Cir. 1999)). “If the Commissioner’s findings
are supported by substantial evidence, they must be affirmed.” Id. “‘Substantial evidence is more
than a scintilla, less than a preponderance, and is such that a reasonable mind might accept it as
adequate to support a conclusion.’” Randall, 570 F.3d at 662 (quoting Randall v. Sullivan, 956 F.2d
105, 109 (5th Cir. 1992)); accord Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995). On review, the
court does not “reweigh the evidence, but . . . only scrutinize[s] the record to determine whether it
contains substantial evidence to support the Commissioner’s decision.” Leggett v. Chater, 67 F.3d
558, 564 (5th Cir. 1995); see Randall, 570 F.3d at 662; Carey v. Apfel, 230 F.3d 131, 146 (5th Cir.
2000). In making this determination, the court must weigh the following four factors: the objective
medical facts; the diagnoses and opinions from treating physicians on subsidiary questions of fact;
Plaintiff’s own testimony about her pain; and Plaintiff’s educational background, work history, and

6

present age. See Wren, 925 F.2d at 126. If there are no credible evidentiary choices or medical
findings that support the Commissioner’s decision, then a finding of no substantial evidence is
proper. See Boyd v. Apfel, 239 F.3d 698, 704 (5th Cir. 2001) (quoting Harris v. Apfel, 209 F.3d 413,
417 (5th Cir. 2000)).
Discussion
Before this court, Plaintiff challenges the Commissioner’s finding that she is not disabled
under the Act. In support of her argument, she claims that the ALJ erred at step four of his analysis.
Lerma complains, specifically, that the ALJ failed to make findings of fact regarding the physical
and mental demands of her past work as a sales attendant. (Plaintiff’s Motion at 5–6). She also
alleges that the ALJ failed to ask the vocational expert witness if his testimony was consistent with
the Dictionary of Occupational Titles [“DOT”]. (Id. at 7-8). Next, Plaintiff contends that she cannot
perform her past work, as it is generally performed, because she cannot meet the standing, walking,
or mental requirements of a “sales attendant,” as the position is described in the DOT. (Id. at 8-10).
Finally, Plaintiff claims that the ALJ failed to consider a letter from her part-time employer, which
states that she is able to work only because of an accommodation. (Id. at 11-12). Defendant,
however, maintains that the ALJ properly considered all of the available evidence, and followed the
applicable law, in determining that Lerma is not disabled under the Act, and that she is not entitled
to an award of Social Security Income benefits. (Defendant’s Motion at 5-8, 9-11).

Medical Facts, Opinions, and Diagnoses
The earliest medical records show that Plaintiff was treated at Harris Health System’s Martin
Luther King Jr. Health Center [“MLK Center”] between July 6, 2010, and March 13, 2013. (Tr. at
257-345). On July 6, 2010, Plaintiff complained that she had been suffering from depression,
7

following the deaths of several family members. (Tr. at 341). She reported symptoms including
fatigue and insomnia, but she denied having any suicidal or homicidal ideation. (Id.). She also
reported that she had been diagnosed as suffering from diabetes. The physician reviewed a
computerized tomography [“CT”] scan5 of Lerma’s abdomen, which revealed hepatosplenomegaly6
and hepatic steatosis.7 (Tr. at 342). He found an irregular hypoechoic area in the left lobe of the liver,
a hydropic8 gall bladder, with a small amount of sludge, and a hemangioma9 on the liver. (Tr. at
345). The scan was otherwise unremarkable. (Tr. at 344-45). The physician recommended that
Plaintiff begin behavioral therapy to treat her depression, undergo additional testing of her liver
mass, and consult a gastrointerologist. (Tr. at 342).
On July 15, 2010, Lerma returned to the MLK Center for a diabetes assessment. (Tr. at 33638). Her physician prescribed Metformin to control her glucose levels. (Tr. at 336-38). On July 26,
2010, she reported that her symptoms had not changed since the last visit. (Tr. at 333). Plaintiff
stated that she had not yet sought treatment from a gastrointerologist or a psychologist. (Tr. at 334).
She was encouraged to see those physicians, as well as a podiatrist and an opthamologist, and to
return in three months. (Tr. at 334, 335). On September 3, 2010, Lerma stated that her blood sugar
had been as high as 200 milligrams per deciliter of blood [“mg/dl”]. (Tr. at 436). However, she

5

A “computerized tomography scan” is a radiographic technique that produces a film that represents a
detailed cross section of tissue structure. Id. at 378.
6

“Hepatosplenomegaly” is the enlargement of the spleen and liver. Id. at 754.

7

“Hepatic steatosis” is the accumulation of fat in the liver. It is commonly referred to as “fatty liver
disease.” Id. at 751.
8

“Hydropic” pertains to an abnormal accumulation of clear watery or serous fluid in the body tissue or
cavity, such as a joint, a fallopian tube, the abdomen, the middle ear, or the gallbladder. Id. at 784.
9

A “hemangioma” is a benign tumor consisting of a mass of blood vessels. Id. at 740.

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added that her blood sugar had been as low as150 mg/dl. (Id.). Plaintiff also said that she had
stepped on a nail in February, and had received a tetanus shot. (Id.).
On September 14, 2010, Lerma received additional treatment at the MLK Center. (Tr. at 32427). She stated that she was post-menopausal, but reported occasional vaginal spotting. (Tr. at 325).
She also complained of back pain, which she attributed to the size of her breasts. She was counseled
to lose weight, or to undergo a breast reduction surgery. (Id.). Her physician ordered an abdominal
and pelvic ultrasound to further evaluate her vaginal bleeding. (Tr. at 327). Those images, dated
November 3, 2010, revealed a small hiatal hernia10 in the lower thorax, and mild diffuse hepatic
steatosis. (Tr. at 321). The liver mass had not changed since the scan taken on July 10, 2010. (Id.).
The images also showed a right inguinal hernia11 in the gatrointestinal tract, and an enlarged,
multifibrous uterus. Plaintiff’s spleen, pancreas, adrenal glands, kidney, bones, and soft tissues were
unremarkable. (Id.). A CT scan and MRI of those areas returned identical results. (Tr. at 317-18,
320).
On February 1, 2011, Plaintiff had another appointment at the MLK Center. (Tr. at 414-16).
Lerma said that she had been monitoring her cholesterol, but that she needed a nutritionist’s
assistance. (Tr. at 415). She stated that she had “been doing well” with her diabetes, and that she had
sought treatment from an opthalmologist. However, she had not yet consulted a podiatrist. (Id.).
Plaintiff reported a persistent cough, but she denied any headache, chest pain, dyspnea,12 abdominal
10

A “hiatal hernia” is a protrusion of a portion of the stomach upward through the diaphragm. Id. at 761.
Most people display few, if any, symptoms. Id.
11

An “inguinal hernia” is a hernia in which a loop of intestine enters the inguinal canal. Id. at 839. It is
typically repaired surgically to prevent the herniated segment from becoming strangulated, gangrenous, or
obstructive. Id.
12

“Dyspnea” is a distressful sensation of uncomfortable breathing that may be caused by certain heart
conditions, strenuous exercise, or anxiety. Id. at 527.

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pain, dizziness, nausea, or vomiting. The physician referred Lerma to a nutritionist, and instructed
her to follow-up in three months (Tr. at 415-16).
On March 18, 2011, Plaintiff presented to the MLK Center for a psychiatric consultation.
(Tr. at 411). She complained of depression, beginning in 2007, with the death of her son, as well as
a recent onset of anxiety and insomnia. (Tr. at 411, 412). Lerma was diagnosed as suffering from
depression and anxiety. The physician prescribed Ambien, to treat her insomnia, and referred her
to a psychiatrist for further assessment of her depression. (Id.). He also instructed her to return in
two months, if her symptoms persisted or worsened. (Tr. at 413).
One year later, on March 23, 2012, Lerma returned to the MLK Center, with complaints of
pain and swelling in a tooth in her lower right jaw. (Tr. at 404). She said that she had not
experienced any headache, or difficulty in breathing or swallowing. Her physician prescribed
Amoxicillin to treat the infection in her tooth, and he instructed her to see a dentist. (Tr. at 405). He
also ordered a metabolic blood panel, which showed that her blood glucose and urea nitrogen levels
were elevated. (Tr. at 402). On May 30, 2012, Plaintiff received follow-up treatment for her
diabetes. (Tr. at 394-96). She reported a history of depression, diabetes, hyperlipidemia, and
hypertension. (Tr. at 395). She denied experiencing any burning, numbness, pins and needles,
tingling, weakness or cramping in her feet. (Id.). The physician found no abnormalities of Lerma’s
feet. (Tr. at 396). He instructed her to inspect her feet every evening, and to return in one year. (Id.).
On August 30, 2012, Plaintiff returned to the MLK Center for lab testing to monitor her
diabetes, an abdominal MRI, and to discuss her stress level. (Tr. at 390-92). She said that her
average blood sugar was about 120 mg/dl. (Tr. at 390). She also stated that she had been having
trouble sleeping, and that she became depressed after her mother’s death earlier that month. (Id.).

10

Lerma told her physician that she is 75% compliant with her medication and diet, and that she
regularly monitors her glucose level. The physician noted that her A1C level13 at that visit fell within
the targeted range. However, Lerma’s blood pressure and cholesterol levels were elevated, and she
displayed a blunted affect, and cried during the examination.(Id.). The physician instructed Lerma
to modify her diet by limiting her consumption of saturated fats, trans fats, and carbohydrates, and
to exercise three times a week. (Tr. at 391). He then prescribed urea nitrogen, to treat her
hypertension, and Paxil to treat her insomnia and anxiety. (Id.).
On January 9, 2013, Lerma had another appointment at the MLK Center to assess her
diabetes, hypertension, and depression. (Tr. at 384-87). She complained of persistent depression,
which worsened around the holidays. (Tr. at 384). Plaintiff explained that the incarceration of her
two sons had exacerbated her depression, as well. She stated that she sometimes had difficulty
completing her normal activities, and that her depressive episodes can persist for several days.
Lerma also said that her blood pressure and diabetes had been stable on her current medication. (Id.).
She denied experiencing any chest pain or dyspnea. The physician noted no physical abnormalities
or deficits during the examination. (Tr. at 384-85). She appeared slightly depressed, but she was able
to remain calm. (Tr. at 385). She was instructed to return for another follow-up in one month, and
to bring all of her medications to that appointment. (Tr. at 386).
On February 7, 2013, Lerma presented with blood in her stools and hemorrhoids. (Tr. at
380). She denied any abdominal pain, headache, dizziness, nausea, vomiting, pain in her legs,
dyspena, or fatigue. (Id.). Plaintiff’s blood pressure was normal, but her cholesterol level was
13

The A1C test is a blood test that provides information about an individual’s average levels of blood
glucose over the past three months. THE NATIONAL INSTITUTE OF DIABETES AND DIGESTIVE AND KIDNEY DISEASES,
https://www.niddk.nih.gov/health-information/diabetes/overview/tests-diagnosis/a1c-test (last visited June 5, 2017).

11

elevated. (Tr. at 381). The physician ordered a metabolic panel, which showed that Plaintiff’s
glucose and A1c levels were elevated, as well. (Tr. at 378). He instructed Lerma to see a nutritionist,
to address her high cholesterol, and a psychiatrist, to treat her depression. (Tr. at 381).
On March 1, 2013, Plaintiff was treated at the MLK Center for an eye injury that she
sustained when she “hit herself [] with an aloe vera plant.” (Tr. at 359). She reported that the redness
in her eye had improved, but complained of pain inside of her eye. (Id.). She stated that, following
the injury, she noticed blood and felt pain. She rated the pain as a one or two, on a scale of one to
ten. (Id.). She did not report any other physical ailments, and her affect, mood, judgment and thought
content appeared to be normal. (Tr. at 359-60). She was advised to report to the emergency room,
for further treatment for the eye injury, and to return to the clinic in three months to follow-up on
her diabetes. (Tr. at 360).
On May 20, 2013, Lerma presented to the MLK Center for a psychiatric evaluation. (Tr. at
352-56). Plaintiff reported that she had been feeling increasingly depressed since 2007. (Tr. at 353).
She stated that she cries continuously, and that she feels that “life isn’t worth living.” (Id.). She also
complained of difficulty in sleeping, fatigue, and anorexia. She said that she had been taking Paxil,
to treat her depression, and Ambien to treat her insomnia, but that they had not been effective. She
denied experiencing any suicidal or homicidal ideations. (Id.). Lerma reported symptoms of
depression, including crying spells, anhedonia, guilt, hopelessness, and worthlessness. (Id.). She also
reported symptoms of anxiety, including excessive worry, ruminating thoughts, an inability to relax,
and “feeling on edge.” (Id.). The physician diagnosed Plaintiff as suffering from insomnia and

12

depression, and assigned her a global assessment function [“GAF”] score of 55.14 (Tr. at 352, 356).
He prescribed Trazodone to treat her insomnia, referred her to behavioral therapy, and instructed her
to return in six to eight weeks. (Tr. at 352, 356).
Plaintiff presented to Dr. Afroz Shamim [“Dr. Shamim”], a psychiatrist at the MLK Center,
on July 26, 2013. (Tr. at 453-59). Lerma reported that she “visualiz[es] her [deceased] son when
[she] close[s her] eyes[,]” and that she sets a plate for him at the dinner table. (Tr. at 454). She stated
that she had been prescribed Trazodone, to help her sleep, and Paxil, to treat her depression. (Tr. at
453-54). Lerma estimated that her symptoms of depression had improved by about twenty percent,
but that she continued to struggle with insomnia. (Tr. at 454). She explained that, at times, she was
so drowsy that she performed poorly at work. The psychiatrist increased the dosage of Plaintiff’s
Trazodone and Paxil prescriptions, and prescribed Hydroxyzine, to treat her insomnia and anxiety.
(Tr. at 458). He also discussed the importance of diet, exercise, and participating in structured
activities. (Tr. at 457). He then instructed Plaintiff to return in six weeks. (Tr. at 458).
On September 5, 2013, Lerma presented to Dr. Amin Karim [“Dr. Karim”], a cardiologist
acting on behalf of the state, for a disability evaluation. (Tr. at 462-68). During the examination,
Plaintiff was able to walk around the room without assistance. (Tr. at 462). She reported that, in
2005, she had slipped at work, and injured the ligaments in her knee. She stated that she had seen
an orthopedist, and had been told that she may need a “knee joint replacement.” (Id.). Lerma told

14

The GAF scale is used to rate an individual’s “overall psychological functioning.” AMERICAN
PSYCHIATRIC INSTITUTE, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (“DSM-IV”) 32 (4th ed.
1994). The scale ascribes a numeric range from “1” (“persistent danger of severely hurting self or others”) to “100”
(“superior functioning”) as a way of categorizing a patient’s emotional status. See id. A GAF score in the “51 to 60”
range indicates moderate difficulty in social, occupational, or school functioning (e.g. few friends, conflicts with
peers or co-workers) OR moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks).
Id. at 34.

13

Dr. Karim that she is able to walk, work, drive, and perform chores. She added that she is able to
stand for about four hours, but that, after six hours, her knee begins to hurt “badly.” (Id.). Plaintiff
reported experiencing cardiovascular and musculoskeletal symptoms, including dyspnea on exertion,
dizziness, high blood pressure, stiff muscles, morning stiffness, and back pain. (Tr. at 463). She
stated that she had difficulty relaxing, sleeping, and remembering things; that she became stressed
or worried easily; and that she had been feeling lonely and depressed. (Id.). Dr. Karim observed no
swelling or tenderness of the knees, and he noted that she displayed a full range of motion in those
joints. (Tr. at 462, 464, 465). He also saw that she was able to raise each leg to ninety degrees. (Tr.
at 464). However, she did complain of some pain in her left knee, with movement. (Tr. at 465). Her
gait was normal, but she was unable to tip toe or to walk on her heels. She was able to hop once, and
perform a squat. (Id.). An x-ray of Lerma’s right knee, dated September 5, 2013, showed joint space
narrowing and osteophyte formation, involving the medial, lateral, and patellofemoral joint
compartment. (Tr. at 461). The image also showed small joint effusion. (Id.). Dr. Karim determined
that Plaintiff was suffering from osteoarthritis in the right knee, and that she had suffered a trauma
in that knee when she injured herself in 2005. (See Tr. at 462, 465). He concluded that Lerma
appeared to experience pain in her knee, with weight bearing, but that she was able to walk without
the assistance of a cane or crutch. (Tr. at 466). He also observed that she did not demonstrate any
mental or emotional changes during the visit. (Id.).
On September 20, 2013, Plaintiff again saw Dr. Shamim. (Tr. at 499-505). Lerma told Dr.
Shamim that she had been worrying about her incarcerated sons, and that she missed her deceased
son. (Tr. at 500). Plaintiff said that her work distracted her from anxiety. She also said that she had
been using Trazadone to treat her insomnia, and that it had been effective. Dr. Shamim observed that

14

Lerma appeared to be very tearful during their session, but that her thought process was linear and
logical. (Tr. at 500, 503). Dr. Shamim instructed Plaintiff to continue taking Paxil, to treat her
depression, and Trazodone and Hydroxyzine, to treat her insomnia and anxiety. (Tr. at 504). He also
suggested that Lerma start writing in a journal, and that she return in two months. (Tr. at 500, 504).
On September 23, 2013, Dr. Andrea Pellegrini, Psy.D. [“Dr. Pellegrini”], a licensed
psychologist, acting on behalf of the state, performed a mental status exam on Lerma. (Tr. at 47074). Plaintiff told Dr. Pellegrini that she had a long history of physical, emotional, and sexual abuse.
(Tr. at 470). She said that she had been physically abused by her mother, when she was a child. She
said that she had been sexually abused at age fifteen, and that she became pregnant. (Id.). Lerma
stated that she was forced to marry the man who violated her, because her mother would not allow
her to return home. She remained married for thirty years, and claims that she was abused by her
husband throughout the marriage. (Id.). Plaintiff said that she had been diagnosed with depression
in 2010. (Tr. at 471). She reported that she has difficulty in focusing, concentrating, completing
tasks, and remembering things. She also complained that she cries frequently; that she has difficulty
in sleeping soundly; and that she frequently relives episodes of past abuse. (Id.). She also said that
she felt sad, hopeless, anxious, and that she “[did] not find enjoyment in anything.” (Id.). Lerma
denied experiencing any hallucinations, delusions, suicidal or homicidal ideations or attempts. (Tr.
at 471, 473). However, she admitted that she often contemplates “letting go of the steering wheel
when [she] driv[es] over bridges.” (Tr. at 471, 473). She told Dr. Pellegrini that she sees a therapist,
and that she had been prescribed Paroxetine, Hydroxyzine, and Trazodone, to treat her depression
and anxiety. (Tr. at 471). Plaintiff stated that her daily activities included “crafts, like making
jewelry, [and] sewing.” (Tr. at 472). She added that she is able to independently bathe, clean,

15

prepare simple meals, manage her finances, and utilize 911 in emergency situations. (Id.). Dr.
Pellegrini observed that Lerma appeared to be anxious, depressed, and tearful, but that she was
cooperative. (Tr. at 472, 473). She added that rapport was established, despite Plaintiff’s visible
emotional distress. (Tr. at 472). She noted that Lerma’s thought processes were slowed, but goal
oriented and logical. Plaintiff’s concentration and attention were fair, and her judgment appeared
to be adequate. (Tr. at 473). Ultimately, Dr. Pellegrini diagnosed Lerma as suffering from major
depressive disorder, recurrent, severe, without psychotic features, and chronic post traumatic stress
disorder. (Tr. at 474). She noted that Lerma had a number of psychosocial stressors, including
occupational, housing, and economic problems. (Id.). On that date, she ascribed a GAF score of 53
to Lerma. She also concluded that, if assigned benefits, she would “be able to manage benefit
payments in her own best interest.” (Id.).
Plaintiff had another appointment with Dr. Shamim on January 3, 2014. (Tr. at 493-98). She
reported that she had been working three days a week, and that she had been functioning well while
on duty. (Tr. at 494). She said that she cared for her three puppies, on her off days. Lerma told Dr.
Shamim that the winter holidays marked the anniversary of her son’s death, but that she had not
visited his grave that year. (Id.). She explained that she “[could not] handle [her] feelings any more.”
(Id.). She added that she had been eating and sleeping well. Dr. Shamim instructed Plaintiff to
continue taking Paxil, to treat her depression, and Trazodone and Hydroxyzine to treat her insomnia
and anxiety. (Tr. at 497). She also advised Plaintiff of the importance of a balanced diet, exercise
and participating in structured daily activities. She then recommended that Lerma return for a
follow-up appointment in six months. (Id.).
On June 9, 2014, Lerma returned to the MLK Center for an evaluation of her hypertension

16

and diabetes. (Tr. at 479-85). She complained of numbness in her fingers, as well as dizziness. (Tr.
at 480, 481, 482). She denied experiencing any headache, chest pain, dyspnea, or edema, and she
stated that she had been compliant with her medications. (Tr. at 481). Lerma’s blood pressure,
glucose, and cholesterol levels each fell within the targeted range. (Tr. at 481-82). The physician
noted that her mood, affect, behavior, judgment, and thought content were normal. (Tr. at 483). She
then advised Plaintiff of the importance of a low cholesterol diet, weight control, daily exercise,
home glucose monitoring, foot care, and annual eye examinations. (Tr. at 485). Lerma was then
referred to the Diabetic Education department, and she was instructed to schedule a follow-up
appointment in one month. (Id.).
Educational History, Background and Present Age
At the time of the administrative hearing, Plaintiff was 60 years old. (Tr. at 28, 226). She had
a fifth grade education, and her past relevant work included her job as a sales attendant. (Tr. at 17,
28, 230). She testified that she is unable to sustain full-time employment, due to pain in her right
knee. (See Tr. at 34). Plaintiff explained that the pain prevents her from standing for extended
periods. (Id.). She stated that she works part-time as a fitting room assistant, but that she is only able
to do so, because she is permitted to sit during her shift. (Tr. at 28, 32, 33).

Subjective Complaints
In her applications for benefits, Lerma reported that she suffers from high blood pressure,
high cholesterol, diabetes, anxiety, depression, and insomnia. (Tr. at 229). She also reported
symptoms including blurry vision, difficulty kneeling, memory loss, severe headache, dyspnea, and
difficulty in concentrating. (Tr. at 234). She claims that she can walk only one block, before she

17

must stop and rest. (Tr. at 240). She said that she can stand for one hour, before she must rest. She
also said that she can perform some housework, but that she cannot mop, because it hurts her back
and knees. (Id.). Lerma described her pain as “aching,” and stated that it is continuous. (Tr. at 243).
She explained that the pain usually begins after being on her feet “too long” at work, and that it did
not subside until she laid down. (Id.). She reported that she had been prescribed Trazadone,
Hydroxyzine, Metformin, Paroxetine, Enalapril, Hydrochlorothiazide for her pain, but that the
medications did not provide any relief. (Tr. at 244, 245). She complained that the medications
caused nausea and dizziness, instead. (Id.).
At the hearing, Lerma testified to the severity and debilitating effects of the impairments
from which she suffers. (Tr. at 32-40). Plaintiff stated that she struggles with anxiety and depression.
(Tr. at 35). She said that she is unable to work on weekends, because she is “very antsy” around
large groups of people. (Id.). She explained that her anxiety manifests as a “scratching [feeling in
her] hands[,] like [] a mosquito bite[.] ” (Tr. at 35-36). Lerma told the ALJ that she had been
prescribed medication for her anxiety, but that it causes severe drowsiness, lethargy, and difficulty
in her concentration and memory. (Tr. at 36). Plaintiff said that her depression began in 2007, after
her son’s death. She reported that she has trouble sleeping, and that she sleeps about six hours, each
night. (Tr. at 37). She stated that she visits a therapist, monthly, and that she takes medication to
treat her depression. She said that her depressive symptoms had subsided with treatment. (Id.).
Plaintiff also reported that she suffers from severe pain in her right knee. (Tr. at 34). She
explained that she twisted her knee in an accident at her previous job. (Id.). She stated that she
attended one year of physical therapy, but that she had not had surgery to treat her injury. (Tr. at 35).
Lerma said that she can stand for approximately two to three hours before experiencing knee pain.

18

She said that, at times, she has had to ask for a break, because of her pain. (Id.). She added that her
pain prevents her from walking long distances and sitting for extended periods. (Tr. at 39).
Lerma testified that she currently lives with her daughter. (Tr. at 37). She said that she
performs housework, but that she must “[complete] it in stages[.]” (Id.). She explained that she is
able to wash, cook, and clean, but that, in order to do so, she minimizes the amount of time that she
spends standing, and “takes [her] time” performing each task. (Id.). She added that she sews in her
free time. (Tr. at 38). Plaintiff told the ALJ that she does not pay her own bills, do any shopping, or
attend church or social events. (Id.). She explained that she “do[es]n’t like to [] go to the front [of
the house], because [she] feel[s] [like people] are watching [her.]” (Id.).
Expert Testimony
The ALJ also heard testimony from Dr. Nancy Tarrand, a medical expert witness. (Tr. at 4042). After reviewing the medical records, Dr. Tarrand stated that Lerma had been suffering from
depression and chronic post-traumatic stress disorder, but that her symptoms had not reached a level
of severity that met, or equaled the medical criteria for any disabling impairment in the applicable
SSA regulations. (Tr. at 41). She told the that ALJ that Plaintiff exhibited some symptoms of
depression, including anhedonia, insomnia, and low energy levels. (Id.). She also said that Lerma
had expressed some feelings of low self-esteem, but that she had not indicated that she felt guilt or
worthlessness. (Id.). Dr. Tarrand conceded that Plaintiff had mild restrictions in her activities of
daily living and social functioning, as well as moderate difficulty with concentration, persistence,
and pace. (Id.). However, she observed that Lerma had not experienced any episodes of
decompensation. Dr. Tarrand also testified that she believed that Lerma may have exaggerated the
severity of her symptoms. (Tr. at 41-42).

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The ALJ later heard testimony from Mr. Herman Litt, a vocational expert witness. (Tr. at4244). He characterized Lerma’s prior work experience, as a sales attendant, as “light,” in exertional
level, and “unskilled.” (Tr. at 16, 43). Following his summary, the ALJ posed the following question
to Mr. Litt:
Q

[B]ased on her age, education, and past work experience, assume I find [that]
she is relegated to the light level, carrying up to 20 pounds, 10 pounds
frequently; no climbing ladders, ropes, or scaffolds; occasional ramps and
stairs, kneeling and crawling. She can understand, remember, and carry out
simple instructions, make simple, work-related decisions, respond
appropriately to supervisors, coworkers [sic], and the public; respond
appropriately to usual work situations and changes in routine work setting
appropriately, and attend and concentrate for extended periods. Could she do
her past relevant work?

A

Yes, sir.

(Tr. at 43-44). Lerma’s attorney then cross-examined the vocational expert witness, asking the
following questions.

Q

If the individual were, due to mental health issues, [] off-task for a period of 20 to 30
percent of the day, would that individual be able to maintain any kind of job?

A

No.

Q

And currently she is working four hours a day with accommodations. If that were to
go to eight hours a day, she may need additional unscheduled breaks, including three
to four unscheduled on top of what was already allotted, [] would that be an
accommodation that would be able to be made[?]

A

No, it wouldn’t.

(Tr. at 44).
The ALJ’s Decision
Following the hearing, the ALJ made written findings on the evidence. From his review of

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the evidence, he determined that Lerma suffers from “degenerative joint disease of the right knee,
major depressive disorder, post-traumatic stress disorder, diabetes, hypertension, and morbid
obesity.” (Tr. at 10). Next, he found that Plaintiff’s medically determinable hepatic lobe mass,
cholelithiasis, and hyperlipidemia were not severe impairments. (Tr. at 11). He further found that
Plaintiff’s impairments do not meet, or equal in severity, the medical criteria for any disabling
impairment in the applicable SSA regulations. (Id.). The ALJ then assessed Lerma’s residual
functional capacity and found that she has the RFC to perform “light work,” as defined by the Act.
That is, she can:
lift and carry 20 pounds occasionally and 10 pounds frequently[,] sit for about six
hours out of an eight-hour workday[,] and stand and walk for six hours out of an
eight-hour workday[,] except she cannot climb ladders[,] ropes[,] or scaffolds. She
can occasionally climb ramps and stairs. She can occasionally kneel and crawl. [She]
can understand, remember, and carry out simple instructions; make simple workrelated decisions; and respond appropriately to supervis[ors], co-workers, [the]
public and [typical] work situations. She is able to handle changes in work routine
[and] setting[s] and attend concentrat[ion] for extended periods.
(Tr. at 13). The ALJ concluded that, while Lerma’s impairments could reasonably be expected to
cause the alleged symptoms, her testimony regarding the limiting effects of her conditions is
inconsistent with the RFC assessment. (Id.). Based on the medical records and the testimony from
Mr. Litt and Dr. Tarrand, the ALJ determined that Lerma is capable of performing her past relevant
work as a sales attendant. (Tr. at 14-16). For these reasons, the ALJ concluded that Lerma is “not
[] under a ‘disability,’ as defined in the Act,” and he denied her applications for benefits. (Tr. at 16).
That decision prompted Plaintiff’s request for judicial review.
In this action, Plaintiff complains that the ALJ erred at step four of his analysis. Lerma
contends, in particular, that the ALJ failed to make findings of fact regarding the physical and
mental demands of her past work as a sales attendant. (Plaintiff’s Motion at 5–6). She also alleges
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that the ALJ failed to ask the vocational expert if his testimony was consistent with the Dictionary
of Occupational Titles [“DOT”]. (Id. at 7-8). Next, Plaintiff insists that she cannot perform her past
work, as it is generally performed, because she cannot meet the standing, walking, or mental
requirements of a “sales attendant,” as the job is described in the DOT. (Id. at 8-10). Finally,
Plaintiff claims that the ALJ failed to consider a letter from her part-time employer, which states that
she is able to work only because of an accommodation. (Id. at 11-12).
It is well settled that judicial review of the Commissioner’s decision is limited to a
determination of whether it is supported by substantial evidence, and whether the ALJ applied the
proper legal standards in making it. See Myers v. Apfel, 238 F.3d 617, 619; Newton, 209 F.3d at 452
(citing Brown, 192 F.3d at 496). Any conflict in the evidence is to be resolved by the ALJ, and not
the court. See id. A finding of “no substantial evidence” is proper only if there are no credible
medical findings or evidentiary choices that support the ALJ’s decision. See Johnson, 864 F.2d at
343-44 (quoting Hames v. Heckler, 707 F.2d 162, 164 (5th Cir. 1983)).
Step Four Analysis
At step four of the disability analysis, a claimant must be found not disabled if she is able
to perform her past relevant work. 20 C.F.R. § 404.1520(f). “While an ALJ has a duty to make a
sufficient inquiry into the 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). Nevertheless, to determine whether
a claimant can perform her past relevant work, the ALJ is required to assess the physical demands
of that work. Orphey v. Massanari, No. 00-31478, 2011 WL 877596, at *1 (5th Cir. 2001) (citing
Villa, 895 F.2d at 1022). This finding may rest on descriptions of past work as it was actually
performed, or as it is generally performed in the national economy. Id. (citation omitted). In making

22

this assessment, the ALJ may consider the claimant’s testimony, the vocational expert’s testimony,
or the Dictionary of Occupational Titles [“DOT”], as well as its companion volumes and
supplements. 20 C.F.R. § 404.1560(b)(2).
Findings of Fact
Plaintiff complains that the ALJ erred by failing to make specific findings of fact regarding
the physical and mental demands of her past work as a sales attendant. (Plaintiff’s Motion at 5–6).
“‘[W]hen making a finding that an applicant can return to [her] prior work, the ALJ must directly
compare the applicant’s remaining functional capabilities with the physical and mental demands of
[her] previous work.’” Garcia v. Colvin, No. V-12-050, 2013 WL 1932851, at *10 (S.D. Tex. May
8, 2013) (quoting Latham v. Shalala, 36 F.3d 482, 484 (5th Cir. 1994). The ALJ must also make
“clear factual findings on that issue, and may not rely on generic classifications of previous jobs.”
Id. (internal citations omitted); see also SSR No. 82-61 (C.E. 1982), 1982 WL 31387. An ALJ may
properly rely on the testimony and conclusions from a vocational expert witness, that a claimant is
capable of performing a particular job. Carey v. Apfel, 230 F.3d 131, 145 (5th Cir. 2000); see Leggett,
67 F.3d at 565.
In his decision, the ALJ relied on the testimony of the vocational expert witness, Mr. Herman
Litt, in determining that Plaintiff “is capable of performing past relevant work as a sales attendant.”
(Tr. at 16). The ALJ noted that Mr. Litt identified Lerma’s past relevant work as a sales attendant,
DOT code 299.677-010, and that the code described that position as “light and unskilled[.]” (Id.).
He explained that Mr. Litt testified that “an individual with [Lerma’s] residual functional capacity
is capable of performing the work of a sales attendant.” (Id.). The ALJ agreed with the vocational
expert, and ultimately found that Plaintiff is capable of performing her past work. (Id.). The

23

vocational expert witness was present during the hearing and was familiar with Plaintiff’s prior work
and current functional limitations. It is clear that the ALJ properly relied on the testimony from Mr.
Litt, which was given in response to a hypothetical question, that contained limitations based on of
the evidence of record. Hickley v. Astrue, No., 2010 WL 3835113, at * 6 (N.D. Tex. Aug. 2, 2010).
On this record, the ALJ made sufficient findings of fact concerning Plaintiff’s ability to perform the
duties required by the sales attendant job. Deleon v. Colvin, No. 7:14-CV-340, 2015 WL 12552003,
at *20 (S.D. Tex. Sept. 22, 2015) (ALJ findings of fact adequate when he relied on vocational expert
witness testimony to find that claimant retained RFC to perform past work). On this point, the ALJ
did not err.
Vocational Expert Testimony Regarding Performance of Work as Sales Attendant Work
Next, Lerma argues that the ALJ failed to confirm that the vocational expert witness’
testimony is consistent with the DOT. (Plaintiff’s Motion at 7-9). She maintains that she was
prejudiced by this error, because there are “several facial inconsistencies between the vocational
expert’s testimony and the DOT.” (Id. at 8). In support of her argument, Plaintiff contends, first, that
she cannot perform work as a sales attendant, as described in the DOT, due to her standing and
walking limitations. (Id. at 8-11). She argues, specifically, that her RFC limits her to “standing and
walking for six hours a day[,]” and that no tasks listed in DOT’s position description can be
performed while seated. (Id. at 8-9). She also claims that the mental acuity required of a sales
attendant are beyond her residual functional capacity, which is limited to following simple
instructions and making simple work-related decisions. (Id. at 9-10).
It is well established that an agency must follow its own procedures. Newton, 209 F.3d at 459
(citing Hall v. Schweiker, 660 F.2d 116, 119 (5th Cir. 1981)). Nevertheless, an administrative

24

decision will not be overturned for merely a procedural violation. Id. Rather, if an agency “violate[s]
its rules and prejudice result[s], the proceedings are tainted and any actions resulting from the
proceeding cannot stand.” Hall, 660 F.2d at 119. In a social security benefits case, an individual
establishes prejudice by showing that, absent the violation, a different result might have been
reached. See Ripley, 67 F.3d at 557.
Under the Regulations, “[o]ccupational evidence provided by a [vocational expert] []
generally should be consistent with the occupational information supplied by the DOT.” No. SSR
00-4p (C.E. 2000), 2000 WL 189870. However, the DOT merely “gives a general description of
the duties involved,” while “[t]he 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.” See Fields v. Bowen, 805 F.2d 1168, 1170-71 (5th Cir. 1986); Carey, 230 F.3d at 145. An
ALJ may rely on the vocational expert witness’ testimony if the hypothetical question reasonably
incorporates all of the claimant’s disabilities that are recognized by the ALJ, and the claimant has
an opportunity to correct any deficiencies in the ALJ’s question. Slaughter v. Astrue, 857 F.Supp.2d
631, 645 (S.D. Tex. Mar. 8, 2012). “[C]laimants should not be permitted to scan the record for
implied or unexplained conflicts between the specific testimony of an expert witness and the
voluminous provisions of the DOT, and then present that conflict as reversible error, when the
conflict was not deemed sufficient to merit adversarial development in the administrative hearing.”
Carey, 230 F.3d at 146-47.
On this record, the ALJ’s failure to explicitly confirm that the vocational expert witness’
testimony was consistent with the DOT did not prejudice Plaintiff. The DOT provides that a “sales
attendant” may perform any combination of the following duties:

25

“Aids customers in locating merchandise. Answers questions from and provides
information to customer about merchandise for sale. Obtains merchandise from
stockroom when merchandise is not on floor. Arranges stock on shelves or racks in
sales area. Directs or escorts customer to fitting or dressing rooms or to cashier.
Keeps merchandise in order. Marks or tickets merchandise. Inventories stocks.
Dictionary

of

Occupational

Titles,

Code

299.677-010,

http://www.occupationalinfo.org/29/299677010.html, last visited June 9, 2017. At the hearing, the
vocational expert witness cited the DOT, explicitly, when equating Plaintiff’s past work with that
of a sales attendant. The ALJ then posed a hypothetical describing Lerma’s RFC, which provided
for her standing, walking, and mental deficiencies. The witness considered those limitations, and
determined that Plaintiff could perform her past work. It is reasonable to conclude, then, that Mr.
Litt considered the DOT’s occupational requirements for a sales attendant, and, nevertheless, found
that Lerma could maintain her past employment. See Social Security Ruling 00-4p, 2000 WL
1898704 at *3 (Dec. 4, 2000) (“the DOT lists maximum requirements of occupations as generally
performed, not the range of requirements of a particular job as it is performed in specific settings.”).
To the extent there is any implied or indirect conflict between the vocational expert’s testimony and
the DOT, the ALJ appropriately gave greater weight to the vocational expert’s testimony. Carey,
230 F.3d at 146.
Moreover, Plaintiff’s attorney had the opportunity to present additional hypothetical
questions, and to cross examine Mr. Litt about Plaintiff’s ability to perform her past work. However,
Lerma’s attorney did not question Mr. Litt about how Lerma’s knee pain might affect her ability to
work. (Tr. at 44). Nor did she inquire about how Plaintiff’s inability to follow detailed instructions
might prevent her from working as a sales attendant. Plaintiff wholly failed to present evidence to
show that she could not perform her past work. Crowley v. Apfel, 197 F.3d 198 (5th Cir. 1999) (a

26

claimant has the burden to prove that she cannot perform the jobs set out by the vocational expert).
On this record, the ALJ properly determined that Lerma was not disabled under the Act.
Lay Opinion
Plaintiff also contends that the ALJ disregarded the opinion from her employer, which
outlined the severity of her standing limitation. (Plaintiff’s Motion at 11-12). In making a disability
determination, an ALJ may consider opinions from “other non-medical source[s],” including
spouses, parents, caregivers, siblings, other relatives, friends, neighbors, and clergy. 20 C.F.R. §
404.1513(d)(4). Information from “other non-medical source[s]” may be used only to provide insight
into the severity of the claimant’s impairment, and how the impairment affects the claimant’s ability
to function. Id. While an ALJ need not discuss every item of evidence in the record, he may not
ignore evidence that does not support his decision. Jefferson v. Barnhart, 356 F.Supp.2d 663, 675
(S.D. Tex. 2004). Ultimately, the ALJ has “sole responsibility for determining a claimant’s disability
status.” Newton, 209 F.3d at 455 (quoting Paul v. Shalala, 29 F.3d 208, 211 (5th Cir. 1994)).
In this case, the ALJ found that the evidence from Plaintiff’s physicians revealed “few
clinical abnormalities stemming from her severe physical impairments.” (Tr. at 14). The
correspondence from Lerma’s employer, alone, cannot establish that her knee impairment was so
severe that it rendered her disabled. Indeed, the employer’s statement is simply a lay opinion that
must be considered in the ALJ’s determination of whether a claimant is disabled under the Act. See
20 C.F.R. §§ 404.1527(b), 404.1527(d)(2). As such, the ALJ made no error in failing to mention the
correspondence from Plaintiff’s employer in his decision.
In sum, the ALJ made sufficient factual findings regarding Plaintiff’s ability to perform her
past work. He appropriately incorporated the standing, walking, and mental limitations from the

27

residual functional capacity assessment into the hypothetical question posed to the vocational expert
witness. He then relied on that responsive testimony to determine that Lerma could perform her past
work. The ALJ did not err in failing to explicitly discuss the opinion from Plaintiff’s employer. For
these reasons, Defendant’s motion for summary judgment is granted, and Plaintiff’s motion is
denied.
Conclusion
Accordingly, it is ORDERED that Defendant’s motion for summary judgment is
GRANTED, and that Plaintiff’s motion for summary judgment is DENIED.
SIGNED at Houston, Texas, this 12th day of June, 2017.

MARY MILLOY
UNITED STATES MAGISTRATE JUDGE

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