Gordwin v. Colvin

Filing 15

MEMORANDUM OPINION granting 10 MOTION for Summary Judgment , denying 9 Cross MOTION for Summary Judgment and Memorandum of Points and Authorities in Support of Plaintiff's Motion for Summary Judgment (Signed by Magistrate Judge Nancy K Johnson) Parties notified.(sjones, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
§
§
Plaintiff,
§
§
v.
§
§
NANCY A. BERRYHILL,1
§
ACTING COMMISSIONER OF THE
§
SOCIAL SECURITY ADMINISTRATION, §
§
Defendant.
§

September 27, 2017
David J. Bradley, Clerk

ERIC GORDWIN,

CIVIL ACTION NO. H-16-1474

MEMORANDUM OPINION
Pending before the court2 are Plaintiff’s Motion for Summary
Judgment (Doc. 9) and Defendant’s Cross-Motion for Summary Judgment
(Doc. 10).

The court has considered the motions, the responses,

the administrative record, and the applicable law. For the reasons
set forth below, the court DENIES Plaintiff’s motion and GRANTS
Defendant’s motion.
I.

Case Background

Plaintiff filed this action pursuant to 42 U.S.C. §§ 405(g)
and 1383(c)(3) for judicial review of an unfavorable decision by
the

Commissioner

of

the

Social

Security

Administration

(“Commissioner” or “Defendant”) regarding Plaintiff’s claims for

1

Carolyn W. Colvin was the Commissioner of the Social Security
Administration (“SSA”) at the time that Plaintiff filed this case but no longer
holds that position. Nancy A. Berryhill is Acting Commissioner of the SSA and,
as such, is automatically substituted as Defendant. See Fed. R. Civ. P. 25(d).
2
The parties consented to proceed before the undersigned magistrate
judge for all proceedings, including trial and final judgment, pursuant to 28
U.S.C. § 636(c) and Federal Rule of Civil Procedure 73. Doc. 14, Ord. Dated
Apr. 14, 2017.

disability insurance benefits under Title II and for supplemental
security income under Title XVI of the Social Security Act (“the
Act”).
A.

Medical History
Plaintiff was born on February 11, 1977, and was thirty-four

years old on the alleged disability onset date.3

Plaintiff is a

high school graduate, and worked as a proofer at Compass Bank until
he was laid off in 2012.4
1.

Physical Impairments

Prior to the alleged disability onset, Plaintiff was diagnosed
with osteosarcoma, a type of bone cancer, in 1994, which was
treated through chemotherapy and the amputation of his right leg
above the knee.5

As a side effect to the chemotherapy, Plaintiff

experienced hearing loss, especially with “high frequency sounds.”6
Plaintiff qualified for the use of hearing aids in March 2013.7
On March 4, 2010, Plaintiff visited the Kelsey-Seybold Clinic,
for pain and phantom-limb issues.8

The doctor noted that Plaintiff

did not have a prosthesis and was experiencing a neuroma-like

3

See Tr. of the Admin. Proceedings (“Tr.”) 34, 38.

4

See Tr. 32-38.

5

See Tr. 281-85.

6

See Tr. 286.

7

See Tr. 343.

8

See Tr. 292.

2

pain.9

Plaintiff returned on September 14, 2010, and inquired

about obtaining a prosthesis or a different type of crutches to
ambulate, stating that he was “tired of getting around on his
crutches.”10
On June 28, 2012, Plaintiff underwent a consultative physical
examination with A. Rashad Cheema, M.D., (“Dr. Cheema”), who noted
his

medical

abilities.11

history,

daily

activities,

pain,

and

physical

As of the date of this appointment, Plaintiff had

obtained his prosthesis.12

On a daily basis, after waking up,

Plaintiff would clean his prosthesis, attach it, drive over to his
grandmother’s house, exercise with weights, play games, and sit.13
In terms of Plaintiff’s physical abilities, Dr. Cheema reported
that he could: walk for ten to fifteen minutes with the prosthesis,
stand

for

five

to

fifteen

minutes,

lift

thirty

pounds

when

standing, and manipulate and grasp objects well.14 Dr. Cheema noted
that “[h]e [was] still learning to walk with the prosthesis and
getting full knowledge of it” and that he had a normal range of
movement in all of his joints, excluding his right leg.15
9

See id.

10

Tr. 294.

11

See Tr. 304-06.

12

See Tr. 304.

13

See id.

14

See id.

15

See id.

3

Plaintiff reported phantom pain in his right leg that would
last all day and hinder his ability to sleep; Plaintiff stated that
the pain was a ten out of ten and that it was worse when he became
“frustrated.”16

Dr. Cheema noted that Plaintiff was “overweight,”

with his weight recorded at 245 pounds, he was “not depressed,” and
that his cancer was in total remission.17 Dr. Cheema concluded that
Plaintiff “will be able to work at a job that requires sitting
because his upper extremity is good.”18

Plaintiff underwent an x-

ray on that same day which showed that his amputation occurred at
the midshaft level of Plaintiff’s right femur bone, but that
Plaintiff had “no fractures or destructive lesions.”19
Magnetic resonance imaging (“MRI”) of Plaintiff’s left knee on
October 1, 2012, revealed that he had osteoarthritis in his left
knee and that his kneecap was “slightly” dislocated.20
On January 2, 2013, Plaintiff presented to TMC Orthopedic for
service on his prosthesis and was given a prosthesis to borrow
while the knee unit on his was being serviced.21

It was noted that

Plaintiff “arrived for this appointment walking independently with

16

Tr. 305.

17

See id. In June 2013, his weight was 248 pounds, and his body mass
index was recorded at 34.59, in the obese range. See Tr. 392.
18

See Tr. 306.

19

See Tr. 307.

20

See Tr. 377.

21

See Tr. 369.

4

no

assistive

prosthesis,

devices”
he

was

and
able

that
to

once
move

he

put

on

the

“unassisted

and

borrowed
had

no

complaints.”22 Plaintiff returned on January 16, 2013, where it was
noted that he was able to walk on his own with the prosthesis and
without an assistive device.23

It was noted that the socket on his

prosthesis needed replacement because it was “ill fitting,” causing
him “greater energy expenditure to walk, a lack of control of the
prosthesis [affecting Plaintiff’s] gait, [and] discomfort due to
know [sic] anatomical support which will lead to skin problems if
not corrected.”24
On January 28, 2013, Plaintiff’s primary care physician,
Franchelle Bailey, M.D., (“Dr. Bailey”) filled out a physical RFC
questionnaire.25 Dr. Bailey noted that she had seen Plaintiff every
six weeks for five months and that she had diagnosed his having an
above right knee amputation, moderate to severe left knee pain, and
depression.26

Dr. Bailey stated that Plaintiff had “intense pain

on a daily basis” from walking, as evidenced by an MRI showing
arthritis in his knee.27

22

Id.

23

See Tr. 368.

24

See id.

25

See Tr. 409-11.

26

See Tr. 409.

27

See id.

5

In an eight-hour work day, Dr. Bailey opined that Plaintiff
could sit for at least six hours and stand or walk for about two
hours, and that he would need to be able to shift positions at will
while working.28

Dr. Bailey indicated that Plaintiff would require

two unscheduled ten-minute breaks during a work day.29
physical

activities,

Dr.

Bailey

noted

that

In terms of

Plaintiff

could:

frequently carry less than ten pounds, occasionally carry ten
pounds, and never carry twenty or fifty pounds; frequently look
down, turn his head right or left, look up, hold his head in a
static position, and twist; and never stoop or bend, crouch or
squat, climber ladders, or climb stairs.30

Dr. Bailey predicted

that Plaintiff would have good and bad days if he was working, and
he would need to be absent one day a month because of his condition
or for treatment.31
Plaintiff underwent a physical evaluation on August 20, 2013.32
Plaintiff reported his medical history, including that he was
having

pain

prosthesis.33

on

his

left

side

due

to

compensating

for

the

Daryl K. Daniel, M.D., (“Dr. Daniel”) noted that

28

See Tr. 410.

29

See id.

30

See Tr. 410-11.

31

See Tr. 411.

32

See Tr. 402-04.

33

See Tr. 402.

6

Plaintiff had a “heavy right limp” when walking but that he could
move from standing to sitting back to standing with no difficulty.34
His weight was 250 pounds as of the date of this appointment.35 Dr.
Daniel found that Plaintiff was not able to walk on his toes and
heels or squat.36

Overall, Dr. Daniel concluded that Plaintiff had

chronic tinnitus, sensorineural hearing loss, degenerative joint
disease in his left knee, and history of right above-the-knee
amputation with phantom pain.37
On this same date, Plaintiff had an x-ray of his left knee.38
This x-ray showed “[n]o discernible fracture or dislocation” and
“[m]inimal

osteoarthritic

change

of

the

left

knee.”39

The

radiologist noted that a future MRI may be needed if Plaintiff’s
symptoms increased.40
2.

Mental Impairments

Plaintiff attended five counseling sessions with Lesajean M.
Jennings, Psy.D., (“Dr. Jennings”) at the Texas Department of
Assistive and Rehabilitative Services (“DARS”) beginning on March

34

See Tr. 404.

35

See Tr. 403.

36

See Tr. 404.

37

See id.

38

See Tr. 405.

39

See id.

40

See id.

7

20,

2013.41

It

was

noted

that

Plaintiff

was

experiencing

depression, felt “trapped” due to his financial situation and
disability, had phantom pain and ringing in his ears, and believed
his prosthetic leg was a “poor fit.”42

On April 10, 2013, Dr.

Jennings remarked that Plaintiff had been considering employment
options, but was “making few real movements towards employment.”43
Plaintiff reported that he did not want a desk job, but did not
think he could perform a driving job because of pain in his foot
and leg.44

Plaintiff decided not to continue counseling after five

sessions, to which Dr. Jennings noted that she “h[ad] concerns
about his poor mental health” and that “[h]e remain[ed] depressed
and hopeless.”45
On February 5, 2013, Plaintiff saw Larry Pollock, Ph.D., (“Dr.
Pollock”) for a psychological evaluation.46 Plaintiff reported that
his depression began when he was diagnosed with cancer, and that he
was experiencing “low motivation, difficulty sleeping, and fe[lt]
hopeless and helpless.”47 Dr. Pollock noted that Plaintiff was able

41

See Tr. 336-56.

42

See id.

43

Tr. 352.

44

See Tr. 350, 353.

45

Tr. 339.

46

See Tr. 322-30.

47

See Tr. 323.

8

to walk on his own at a slow pace.48
series

of

tests,

Dr.

Pollock

After Plaintiff underwent a

diagnosed

Plaintiff

with

major

depressive disorder and borderline intellectual functioning.49

As

a result of these diagnoses, Dr. Pollock assessed the following
functional limitations: (1) episodes of depression; (2) loss of
energy;

(3)

low

self-esteem;

(4)

decreased

attention

and

concentration; (5) feelings of despair and hopelessness; (6) loss
of motivation; (7) irritability; (8) decreased effectiveness and
productivity at work; (9) poor academic skills; (10) concrete
thought processes; (11) limited problem solving abilities; and (12)
poor planning ability.50

Dr. Pollock noted that Plaintiff wanted

a prosthetic leg, was tired often, and was “not interested in
finding employment.”51

Dr. Pollock assigned Plaintiff a global

assessment of functioning (“GAF”) score of fifty-one, showing
moderate symptoms.52
Plaintiff visited Tonna D. Pate, Psy.D., (“Dr. Pate”) on May
14,

2013,

for

a

consultative

psychological

examination.53

Plaintiff’s reported symptoms included: feeling depressed; low

48

See Tr. 324.

49

See Tr. 326.

50

See Tr. 326-27.

51

See Tr. 327-28.

52

See Tr. 330.

53

See Tr. 331-34.

9

social interaction, especially outside of his family; overeating
and subsequent weight gain; difficulty sleeping due to phantom
pain; and anxiety.54

Dr. Pate noted that Plaintiff had been

receiving treatment with DARS, that he was “try[ing] to find work,”
and

that,

although

he

felt

fatigued

toward

the

end

of

his

employment and was laid off due to the economy and his performance,
“he would like to return to work.”55

Dr. Pate gave Plaintiff a GAF

score of sixty-three, indicating mild symptoms.56 Overall, Dr. Pate
assessed that Plaintiff had major depressive disorder and average
intelligence.57

Additionally, Dr. Pate mentioned that Plaintiff

wore his prosthetic leg, walked slowly with a limp, and used a
cane.58
Plaintiff saw Merrill P. Anderson, Ph.D., (“Dr. Anderson”) on
August 12, 2013, for a psychological evaluation.59

Most of the

historical information shared by Plaintiff was similar to that
which was shared in prior evaluations.60 However, it was noted that
he had experienced suicidal ideation and “deteriorated functioning

54

See Tr. 331.

55

Tr. 331-32.

56

See Tr. 333.

57

See Tr. 333.

58

See Tr. 332.

59

See Tr. 397-400.

60

See id.

10

over the past year” due to his depression.61

Dr. Anderson found

that Plaintiff had major depression and noted that his psychosocial
stressors

included

his

unemployment,

financial

problems,

and

chronic knee pain, but said that his prognosis was “[f]air, and
could be improved with appropriate psychiatric management.”62
B.

Application to Social Security Administration
Plaintiff applied for disability insurance benefits on January

2, 2013, claiming an inability to work since December 15, 2011, and
applied for supplemental security income benefits on January 31,
2013, claiming a disability onset date of December 15, 2011.63

In

a disability report dated February 12, 2013, Plaintiff claimed that
his right leg amputation, depression, high cholesterol, arthritis,
phantom pain, and hearing loss limited his ability to work, and
that he stopped working due to his conditions.64
On

July

12,

2012,

Dr.

Kelvin

Samaratunga,

M.D.,

(“Dr.

Samaratunga”), a nonexamining physician, evaluated Plaintiff’s
physical residual functional capacity (“RFC”).65

Dr. Samaratunga

addressed Plaintiff’s physical abilities, finding that he was
capable of occasionally of lifting and/or carrying up to twenty

61

Tr. 398.

62

Tr. 399.

63

See Tr. 166-71.

64

See Tr. 205-06.

65

See Tr. 309-16.

11

pounds, frequently lifting and/or carrying ten pounds, standing
and/or walking for at least two hours in an eight-hour work day,
and sitting for about six hours in an eight-hour work day.66

Due

to his right leg amputation, Dr. Samaratunga noted that Plaintiff
had limitations in his lower extremities.67

Additionally, Dr.

Samaratunga found that Plaintiff was able to: occasionally climb
ramps or stairs, balance, stoop, kneel, crouch, and crawl, but
never climb a ladder, rope, or scaffolds.68

According to Dr.

Samaratunga, the record did not establish any visual, manipulative,
communicative, or environmental limitations.69

Dr. Samaratunga

concluded that Plaintiff’s alleged limitations were not fully
supported by the record, noting that he had phantom pain but could
walk with the prosthesis.70
In a work history report dated February 12, 2013, Plaintiff
stated that he worked as a park worker at an amusement park from
January to February of 1998, as a telemarketer from January to
February 1999, as a data entry clerk and proofer at a bank from
January to August 2000, and as a data entry clerk from August 2000

66

See Tr. 310.

67

See id.

68

See Tr. 311.

69

See Tr. 312-13.

70

See Tr. 314.

12

to November 2011 at another bank.71

In his final position, he made

$30,000.00 per year and worked five days per week.72

Plaintiff

later updated his work history to specify that he worked for Jack
Henry in 2000, and for Compass BBVA from 2000 to 2011.73
Plaintiff completed a function report on March 3, 2013, in
which he stated that he lived at home with his family.74

Plaintiff

reported an inability to walk or stand for more than five to ten
minutes

and

indicated

that

he

needed

help

to

move

items.75

Plaintiff’s daily routine included bathing, watching television,
eating,

preparing

his

prosthetic

leg,

going

outside,

eating,

watching more television, spending time with his family, and
sleeping.76

In terms of personal care, Plaintiff disclosed that he

had difficulty with dressing, bathing, and using the toilet, but
did not need reminders to take care of himself.77
When Plaintiff left the house, he would drive a car and could
leave the house unaccompanied.78

71

See Tr. 194.

72

See Tr. 195.

73

See Tr. 227.

74

See Tr. 213-20.

75

See Tr. 213.

76

See Tr. 214.

77

See Tr. 214-15.

78

Plaintiff did not prepare his own

See Tr. 216.

13

meals, complete household chores, or go shopping.79 Plaintiff could
pay bills, count change, handle a savings account, and use a
checkbook or money orders, and noted that his conditions did not
affect his ability to handle money.80

Plaintiff’s hobbies included

watching television, which he did on a daily basis.81
In terms of social activities, Plaintiff spent one to two
hours a day sitting at home talking to others.82

On a regular

basis, Plaintiff visited his grandparents’ home.83

Plaintiff was

able to leave the house on his own, and left, on average, one to
two times per week.84

Since the onset of his conditions, Plaintiff

said he isolated himself more.85
The list of activities that Plaintiff indicated were affected
by his condition included: lifting, squatting, bending, standing,
reaching, walking, kneeling, hearing, stair climbing, remembering
things, understanding, and getting along with others.86

Plaintiff

could walk for five to ten minutes before requiring twenty minutes

79

See Tr. 215-16.

80

See Tr. 216.

81

See Tr. 217.

82

See id.

83

See id.

84

See id.

85

See Tr. 218.

86

See id.

14

of rest.87

Plaintiff reported that: (1) his hearing deficiencies

made it difficult for him to pay attention; (2) he had trouble
completing tasks; (3) he could not follow written instructions
well; (4) he could follow spoken instructions more effectively than
written ones; and (5) he had trouble with change and stress.88
Plaintiff’s fears included the fear of “not having the ability to
get around.”89

Doctors prescribed Plaintiff an artificial limb and

crutches that he used on a daily basis.90

Plaintiff did not report

that his medications caused side effects.91
On

May

9,

2013,

and

September

18,

2013,

state

agency

nonexamining physicians found that Plaintiff’s allegations were
only partially credible.92 They both observed that he had postural,
exertional, and mental limitations.93
Plaintiff completed another disability report on June 12,
2013.94

In this report, Plaintiff noted that he did not have any

new limitations but said that he had been feeling “worse” since the
last report he completed and that it was difficult for him to

87

See id.

88

See Tr. 218-19.

89

Tr. 219.

90

Id.

91

See Tr. 220.

92

See Tr. 70-93.

93

See id.

94

See Tr. 237-41.

15

participate in daily activities.95
On July 9, 2013, Plaintiff filled out a second function
report, including some new information.96

In terms of his medical

condition, Plaintiff stated that he experienced depression, changes
in his weight, suicidal thoughts, pain in his left leg, and
difficulty sleeping due to shock pains from his amputated right
leg.97

In terms of his daily routine, Plaintiff stated that he

watched television, laid in bed, and brushed his teeth.98 Plaintiff
explained that he could not longer look for jobs because he did not
have

a

car

and

could

not

go

anywhere

due

to

his

physical

limitations.99
Plaintiff disclosed that he experienced problems with personal
care including dressing and bathing, and that his mother would do
his laundry, clean his room, and cook and shop for him.100
Plaintiff stated that he did not go anywhere on a regular basis and
that, because of his conditions, he did not have friends, “feel
attractive,” participate in activities, and felt “discouraged about
everything.”101

Plaintiff reported that he did not spend time with

95

See Tr. 237, 240.

96

See Tr. 242-49.

97

See Tr. 242.

98

See Tr. 243.

99

See id.

100

See Tr. 243-45.

101

See Tr. 246.

16

others, and that he did not like going to family functions because
his difficulty moving would cause him to be depressed, and that he
could not play basketball because of the amputation.102
Plaintiff again indicated that he had difficulty with the
following

abilities:

lifting,

squatting,

bending,

standing,

reaching, walking, sitting, kneeling, hearing, stair climbing,
remembering, completing tasks, understanding, using his hands, and
getting along with others.103

With regards to walking, Plaintiff

could walk for ten steps before need to rest for five to ten
minutes.104

Plaintiff would get easily “frustrated” with others,

not finish what he started, and could understand some instructions,
but had difficulty with spoken instructions.105
included

his

cancer

returning

prosthesis or crutches.106
cane.107
The

and

not

Plaintiff’s fears

having

access

to

his

Plaintiff noted that he also used a

The medication Plaintiff took caused drowsiness.108
Social

Security

Administration

denied

Plaintiff’s

application at the initial and reconsideration levels.109 Plaintiff

102

See Tr. 246-47.

103

See Tr. 247.

104

See id.

105

See id.

106

See Tr. 248.

107

See id.

108

See Tr. 249.

109

See Tr. 115-21, 125-29.

17

requested a hearing before an administrative law judge (“ALJ”) of
the Social Security Administration.110

The ALJ granted Plaintiff’s

request and conducted a hearing on June 4, 2014.111
C.

Hearing
At the hearing, Plaintiff and a vocational expert (“VE”),

Cheryl Swisher (“Swisher” or “VE”) testified.112

Plaintiff was

represented by an attorney.113
Plaintiff explained that he worked for Goodwill Industries in
1999, after he completed a training school course on data entry.114
After this, Plaintiff worked in data entry for Jack Henry and
Associates and then Compass Bank.115 At Compass Bank, Plaintiff was
a proofer, where he examined checks and entered the check number.116
Plaintiff testified that he was laid off from Compass Bank in 2012
as part of a larger reduction in force at the bank.117

At the time

he was laid off, Plaintiff was working five days a week from 5:00
p.m. to 11:00 p.m. and was paid by salary.118

110

See Tr. 130-31.

111

See Tr. 27-57.

112

See Tr. 27-57.

113

See Tr. 27.

114

See Tr. 32.

115

See id.

116

See Tr. 33.

117

See Tr. 33, 37-38.

118

See Tr. 36.

18

Plaintiff testified that he was thirty-seven years old, a
high-school graduate, never married, and had no children.119

His

right leg was amputated when he was fifteen years old and since
then

he

had

limitations.120

gained

seventy

pounds

due

to

his

physical

At the time of the hearing he was 5'11" and weighed

between 240 to 250 pounds.121

Plaintiff testified that he did not

smoke cigarettes, he smoked cigars sometimes, and drank alcohol
occasionally.122

The last time Plaintiff had smoked marijuana was

two to three years before the hearing.123

Plaintiff explained that

alcohol “[u]sed to be a problem” for him because it would cause him
to become more depressed.124

The ALJ asked Plaintiff why, in his

counseling appointments, Plaintiff implied that he did not want to
work anymore, and Plaintiff replied that he was “tired” and that
“getting around is difficult at home.”125

While he was working,

Plaintiff was able to live by himself, but his mother would come to
his residence to clean and take care of him.126
Referencing his history of cancer, Plaintiff stated that he

119

See Tr. 38-39.

120

See Tr. 51-52.

121

See Tr. 38.

122

See id.

123

See Tr. 40.

124

See id.

125

Id.

126

See Tr. 41.

19

should see a doctor on an annual basis to confirm that he was still
in remission from his cancer, but that he no longer made return
appointments because he “was tired of going.”127
cholesterol

medication,

and

had

been

Plaintiff took

prescribed

several

antidepressants, but had stopped taking them because he did not
enjoy taking them.128 Besides his cholesterol medication, Plaintiff
took Tylenol III for pain.129
Plaintiff was prescribed a prosthesis in 2011, but stopped
wearing it because it gave him rashes and bumps on his leg.130
While he was still working for Compass Bank, he used crutches.131
Plaintiff used a prosthesis when he was younger, but had difficulty
walking with it.132
crutches.133

Overall, Plaintiff testified that he preferred

Plaintiff explained that he could not walk far with

the prosthesis without needing breaks, and that walking with it
made him fatigued, hurt his back, and caused pain in his left
knee.134

Plaintiff’s doctor had diagnosed arthritis in his left

127

Tr. 42.

128

See id.

129

See Tr. 43-44.

130

See Tr. 44.

131

See id.

132

See Tr. 45-46.

133

Tr. 46.

134

See Tr. 46-47.

20

knee.135

Plaintiff testified that he also experienced swelling in

his left ankle, especially when driving.136
In terms of his daily activities, Plaintiff said that he spent
the majority of his time at home, lying down, and that he did not
leave the house.137

Standing or walking caused Plaintiff to become

“frustrated” so he would “lay in bed” and “watch TV.”138

When asked

about physical activity, Plaintiff stated that it was difficult
because of his leg, and that he had exercised by swimming in the
past but gave it up due to its cost.139

The ALJ pointed out that

DARS gave Plaintiff a list of low-cost and free places to swim, and
Plaintiff explained that it was too expensive to pay for the gas to
get there and that he had not obtained a bus pass.140
At the conclusion of Plaintiff’s testimony, Swisher discussed
Plaintiff’s past work history and the capability of an individual
with Plaintiff’s RFC to perform those or other jobs.141

Swisher

stated that Plaintiff’s past relevant work met the Dictionary of
Occupational Titles (“DOT”) definition of a data entry clerk, which
Swisher considered a sedentary position, and his work at Compass
135

See Tr. 47.

136

See id.

137

See Tr. 47-48.

138

Tr. 48.

139

See id.

140

See Tr. 48-49.

141

See Tr. 52-55.

21

Bank as a proofer met the definition of a data examination clerk,
which was also a sedentary position.142
The ALJ presented the following hypothetical individual:
[F]or all hypotheticals assume a person the same age,
education, work history as the claimant.
Assume a
person’s limited to sitting six hours in a day and
walking no more than two.
Lifting ten pounds
occasionally and frequently. Occasional climbing. No
climbing ladders, ropes or scaffolds.
Occasional
balancing, stooping, kneeling, crouching, crawling.
Scratch that, no crawling.
Person uses crutches to
ambulate. Able to understand, remember, and carry out
only simple work. No production rate paced work.143
The VE testified that such an individual could not perform
Plaintiff’s past relevant work because his past work was semiskilled.144

However, the VE found that Plaintiff could perform

positions

such

as

order

clerk,

telephone

solicitor,

and

surveillance monitor.145
The ALJ modified the hypothetical, stating that “the person
can do simple and detailed work.”146

The VE stated that this

hypothetical individual could perform Plaintiff’s past relevant
work

as

a

data

entry

clerk

and

data

examination

clerk.147

Additionally, the ALJ asked if these positions would allow for

142

See Tr. 35.

143

Tr. 52-53.

144

See Tr. 53.

145

See Tr. 53-54.

146

See Tr. 54.

147

See id.

22

moving between sitting and standing, and the VE explained that
while the person would need to stay at the work station, he could
move between sitting and standing throughout the day.148
In the next modification, the ALJ asked, “if the job required
two extra ten-minute breaks and would possibly result in one
absence a month these jobs would still be available?,” to which the
VE found that the one absence a month would be feasible, but that
the ten-minute breaks would prevent this worker from “consistently
maintain[ing] competitive employment.”149
Plaintiff’s attorney presented one follow-up question of the
VE, asking if the hypothetical individual could work in these
positions without carrying anything due to his use of crutches, to
which

the

VE

answered

affirmatively,

from

her

personal

and

professional experience as a former data entry clerk.150
D.

Commissioner’s Decision
On

September

decision.151

9,

2014,

the

ALJ

issued

an

unfavorable

The ALJ found that Plaintiff met the requirements of

insured status through December 31, 2016, and that Plaintiff had
not engaged in substantial gainful activity since December 15,

148

See id.

149

Tr. 55.

150

See id.

151

See Tr. 11-22.

23

2011, the alleged onset date.152
impairments

as

osteoarthritis

severe:
of

the

The ALJ recognized the following

“right
left

above

knee;

the

obesity;

knee

amputation;

depression;

and

borderline intellectual functioning” but noted that his hearing
loss was not a severe impairment.153
Plaintiff’s severe impairments, individually or collectively,
did not meet or medically equal disorders described in the listings
of the regulations154 (the “Listings”), according to the ALJ.155

In

particular, the ALJ considered Listing 1.02 (major dysfunction of
a joint), Listing 1.05 (amputation due to any cause), Listing 2.10
(hearing loss not treated with cochlear implantation), Listing
12.04 (depressive, bipolar, and related disorders), and Listing
12.05 (intellectual disorder).156
In

determining

Plaintiff’s

RFC

to

perform

work-related

activities, the ALJ discussed Plaintiff’s alleged symptoms and his
medical treatment and stated that he followed the regulatory
requirements as to both.157

When considering Plaintiff’s symptoms,

the ALJ first evaluated whether a medically determinable impairment

152

See Tr. 13.

153

Tr. 13-14.

154

20 C.F.R. Pt. 404, Subpt. P, App. 1.

155

See Tr. 14-16.

156

See id.

157

See Tr. 16.

24

could reasonably be expected to produce the alleged symptoms.158
Second, he evaluated the “intensity, persistence, and limiting
effects of [Plaintiff’s] symptoms to determine the extent to which
they limit[ed] [Plaintiff’s] functioning,” making a credibility
finding for those symptoms that were not substantiated by objective
medical evidence.159
The ALJ discussed Plaintiff’s medical treatment, including
records from: his cancer treatment in 1994 through 1995; treatment
related to the acquisition and use of his prosthetic leg; an MRI of
his left knee; findings related to his obesity and hearing loss;
notes from nonexamining and examining State agency physicians; 2013
counseling sessions; Dr. Pollock’s psychological examination;
consultative

psychological

examinations

by

Dr.

Pate

and

Dr.

Anderson; a report from a nonexamining State agency psychologist;
and a medical source statement from his treating physician, Dr.
Bailey.160
The ALJ explained that he accorded the opinion of Dr. Bailey
some, but not controlling, weight because some limitations she
found were unsupported by the medical evidence.161

Specifically,

the ALJ stated that it was unclear from the record why Dr. Bailey

158

See id.

159

Id.

160

See Tr. 16-21.

161

See Tr. 20-21.

25

stated that Plaintiff would need one work day a month off for
medical appointments and need multiple daily rest breaks, when the
consultative examiner stated that he could bend, stoop, and climb
ramps and stairs.162

The ALJ reasoned that the purpose of the

consultative examination was to evaluate Plaintiff’s abilities in
these areas.163
The

ALJ

engaged

in

a

thorough

account

of

Plaintiff’s

statements regarding the symptoms that he experienced as a result
of his impairments.164 Specifically, the ALJ discussed the symptoms
associated with Plaintiff’s amputated leg, arthritic left knee,
hearing loss, depression, and obesity.165
He concluded: “After careful consideration of the evidence, I
find that the claimant’s medically determinable impairments could
reasonably be expected to cause the alleged symptoms; however, the
claimant’s statements concerning the intensity, persistence and
limiting effects of these symptoms are not entirely credible for
the reasons explained in this decision.”166
The ALJ found Plaintiff capable of performing sedentary work
because he could lift or carry ten pounds occasionally and less

162

See Tr. 20.

163

See Tr. 20-21.

164

See Tr. 16-21.

165

See Tr. 16.

166

Tr. 17.

26

than ten pounds frequently, stand or walk for two hours out of an
eight-hour work day, and sit for six hours in an eight-hour work
day.167
RFC:

The ALJ included the following limitations in Plaintiff’s
(1)

no

climbing

of

ropes,

ladders,

or

scaffolds;

(2)

occasional climbing of ramps or stairs; (3) occasional balancing,
stooping, kneeling, or crouching; (4) no crawling; (5) use of
crutches to ambulate; (6) performing of detailed, but not complex
tasks; and (7) no working at a forced or assembly line pace.168
The ALJ found that Plaintiff was capable of performing his
past relevant work as a data entry clerk and proofer.169

The ALJ

noted that, if Plaintiff was able to perform a full range of
sedentary work, the Medical-Vocational Guidelines170 directed a
finding of not disabled.171

The ALJ stated that Plaintiff was a

younger individual with a high school education and the ability to
communicate in English.172

Alternatively, considering Plaintiff’s

age, education, work experience, and RFC, the ALJ found that
Plaintiff

could

perform

other

jobs

in

the

national

economy,

including positions such as order clerk, telephone solicitor, or

167

See Tr. 16.

168

See id.

169

See Tr. 21.

170

See Tr. 21.

171

See Tr. 22.

172

See Tr. 21.

27

surveillance system operator.173

The ALJ concluded that Plaintiff

had not been under a disability from December 15, 2011, through
September 9, 2014, the date of the ALJ’s decision.174
Plaintiff appealed the ALJ’s decision, and, on March 29, 2016,
the Appeals Council denied Plaintiff’s request for review, thereby
transforming the ALJ’s decision into the final decision of the
Commissioner.175

After receiving the Appeals Council’s denial,

Plaintiff sought judicial review of the decision by the court.176
II.

Standard of Review and Applicable Law

The court’s review of a final decision by the Commissioner
denying disability benefits is limited to the determination of
whether: 1) the ALJ applied proper legal standards in evaluating
the record; and 2) substantial evidence in the record supports the
decision.
A.

Waters v. Barnhart, 276 F.3d 716, 718 (5th Cir. 2002).

Legal Standard
In order to obtain disability benefits, a claimant bears the

ultimate burden of proving he is disabled within the meaning of the
Act.

Wren v. Sullivan, 925 F.2d 123, 125 (5th Cir. 1991).

Under

the applicable legal standard, a claimant is disabled if he is
unable “to engage in any substantial gainful activity by reason of

173

See Tr. 21-22.

174

See Tr. 22.

175

See Tr. 1-4.

176

See Doc. 1, Pl.’s Compl.

28

any medically determinable physical or mental impairment. . . which
has lasted or can be expected to last for a continuous period of
not less than twelve months.”

42 U.S.C. § 423(d)(1)(a); see also

Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994).

The

existence of such a disabling impairment must be demonstrated by
“medically acceptable clinical and laboratory diagnostic” findings.
42 U.S.C. § 423(d)(3), (d)(5)(A); see also Jones v. Heckler, 702
F.2d 616, 620 (5th Cir. 1983).
To determine whether a claimant is capable of performing any
“substantial

gainful

activity,”

the

regulations

provide

that

disability claims should be evaluated according to the following
sequential five-step process:
(1) a claimant who is working, engaging in a substantial
gainful activity, will not be found to be disabled no
matter what the medical findings are; (2) a claimant will
not be found to be disabled unless he has a “severe
impairment;” (3) a claimant whose impairment meets or is
equivalent to [a Listing] will be considered disabled
without the need to consider vocational factors; (4) a
claimant who is capable of performing work that he has
done in the past must be found “not disabled;” and (5) if
the claimant is unable to perform his previous work as a
result of his impairment, then factors such as his age,
education, past work experience, and [RFC] must be
considered to determine whether he can do other work.
Bowling v. Shalala, 36 F.3d 431, 435 (5th Cir. 1994); see also 20
C.F.R. § 416.920.

The analysis stops at any point in the process

upon a finding that the claimant is disabled or not disabled.
Greenspan, 38 F.3d at 236.
B.

Substantial Evidence

29

The widely accepted definition of “substantial evidence” is
“that quantum of relevant evidence that a reasonable mind might
accept as adequate to support a conclusion.” Carey v. Apfel, 230
F.3d 131, 135 (5th Cir. 2000).

It is “something more than a

scintilla but less than a preponderance.”

Id.

The Commissioner

has the responsibility of deciding any conflict in the evidence.
Id.

If the findings of fact contained in the Commissioner’s

decision are supported by substantial record evidence, they are
conclusive, and this court must affirm.

42 U.S.C. § 405(g);

Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir. 1990).
Only if no credible evidentiary choices of medical findings
exist to support the Commissioner’s decision should the court
overturn it.
1988).

Johnson v. Bowen, 864 F.2d 340, 343-44 (5th Cir.

In applying this standard, the court is to review the

entire record, but the court may not reweigh the evidence, decide
the issues de novo, or substitute the court’s judgment for the
Brown v. Apfel, 192 F.3d 492, 496 (5th

Commissioner’s judgment.
Cir. 1999).

In other words, the court is to defer to the decision

of the Commissioner as much as is possible without making its
review meaningless.

Id.
III. Analysis

Plaintiff requests judicial review of the ALJ’s decision to
deny

disability

benefits.

Plaintiff

asserts

that

the

ALJ’s

decision contains the following errors: (1) the ALJ erred by

30

finding that Plaintiff did not meet Listing 1.02A or Listing 1.05B;
(2) Plaintiff’s RFC did not address Plaintiff’s limitations on
lifting and carrying; (3) the ALJ did not properly consider the
treating physician’s opinion; (4) the ALJ should have asked for an
updated medical expert opinion on Plaintiff’s impairments; (5) the
ALJ did not consider the nonexertional limitations of Plaintiff’s
left knee pain; (6) the ALJ failed to state the specific reasons
for his determination of Plaintiff’s credibility; and (7) the ALJ
failed to properly inquire into the physical and mental demands of
Plaintiff’s past relevant work.

Defendant argues that the ALJ’s

decision is legally sound and is supported by substantial evidence.
A.

Listings
Plaintiff

contends

that

the

ALJ

erred

in

Plaintiff did not meet Listings 1.02A or 1.05B.

finding

that

In stating why

Plaintiff did not meet these listings, the ALJ explained:
[Plaintiff] has been fitted for and is able to use a
prosthesis on his right leg, although he chooses to use
crutches instead.
Therefore he does not meet the
requirements for listing 1.05. [Plaintiff] is able to
ambulate effectively with crutches using his left leg and
he is able to perform fine and gross motor movements
effectively. Therefore he does not meet the requirements
for listing 1.02.177
Listing 1.02A requires “gross anatomical deformity . . . and
chronic joint pain and stiffness with signs of limitation of motion
or other abnormal motion of the affected joint(s), and findings on

177

Tr. 14.

31

appropriate medically acceptable imaging of joint space narrowing,
bony destruction, or ankylosis of the affected joint(s)” and
“[i]nvolvement of one major peripheral weight-bearing joint (i.e.,
hip,

knee,

or

effectively.”

ankle),

resulting

in

inability

to

ambulate

Listing 1.02A.

Listing 1.05B applies when the claimant has had one or both
extremities amputated at or above the tarsal region and has “stump
complications resulting in medical inability to use a prosthetic
device to ambulate effectively . . . which have lasted or are
expected

to

last

for

at

least

twelve

months.”

Ineffective

ambulation is defined as “an extreme limitation of the ability to
walk; i.e., an impairment(s) that interferes very seriously with
the individual’s ability to independently initiate, sustain, or
complete activities.”

Listing 1.00B(2)(b).

In further explanation, the regulation section states that
inability

to

insufficient

ambulate
lower

effectively

extremity

generally

functioning

.

means
.

.

to

“having
permit

independent ambulation without the use of a hand-hand assistive
device(s) that limits the functioning of both upper extremities .
. . To ambulate effectively, individuals must be capable of
sustaining a reasonable walking pace over a sufficient distance to
be

able

to

carry

1.00B(2)(b)(1), (2).

out

activities

of

daily

living.

Listing

Examples given are, without limitation, “the

inability to walk without the use of a walker, two crutches or two

32

canes, the inability to walk a block at a reasonable pace on rough
or

uneven

surfaces,

the

inability

to

use

standard

public

transportation, the inability to carry out routine ambulatory
activities, such as shopping and banking, and the inability to
climb a few steps at a reasonable pace with the use of a single
hand rail.”

Listing 1.00B(2)(b)(2).

Here, the ALJ explained that Plaintiff had a prosthesis for
his right leg, but elected to utilize crutches.
evidence supports this determination.

The medical

In his testimony, Plaintiff

testified that he preferred to use crutches because his prosthesis
gave him a rash.
his

However, many of Plaintiff’s doctors, including

psychologists,

noted

that

Plaintiff

showed

up

for

his

appointments wearing his prosthesis, and sometimes used one cane.
The state agency nonexamining physicians found that Plaintiff could
walk solely using his prosthesis.

There is no medical evidence

demonstrating that Plaintiff was required to use crutches.

In his

appointment with Dr. Cheema, she found that he could walk with his
prosthesis and had a normal range of motion in his left leg.
Additionally, both Dr. Cheema and Dr. Daniel found that Plaintiff
could

move

from

a

seated

to

standing

position

unassisted.

Plaintiff’s reports indicated that he could walk for short periods
of time before resting and that he could travel on his own.

While

Plaintiff contends that he could not move due to his obesity and
left knee arthritis, his treating physician, Dr. Bailey, stated

33

that Plaintiff could stand or walk for two hours in an eight-hour
workday despite the arthritis and obesity.

Therefore, substantial

evidence supports the ALJ’s decision that Plaintiff did not meet
Listings 1.05B or 1.02A.
B.

RFC
Plaintiff takes issue with the RFC finding, arguing that the

ALJ “fail[ed] to address limitations that would apply to lifting
and carrying when standing or walking while holding a cane,” and
posits that a medical expert should have been consulted.
Plaintiff explains that “[t]he ALJ found that [Plaintiff]
would need to use crutches to ambulate . . . [but] failed to
adequately address the impact of the use of a [sic] crutches on
[Plaintiff’s] work related activities and failed to include any
specific limitations in the residual functional capacity that would
logically apply to an individual while attempting to lift and carry
objects when walking or standing with crutches in both hands.”
Sedentary work is defined as “lifting no more than 10 pounds
at a time and occasionally lifting or carrying articles like docket
files, ledgers, and small tools.”
416.967(a).

20 C.F.R. § 404.1567(a),

Social Security Ruling (“SSR”) 96-9p emphasizes that

the ability to lift and carry ten pounds is necessary for the
unskilled sedentary occupational base.

SSR 96-9p, 1996 WL 374185,

at *6 (July 2, 1996).
As to Plaintiff’s contention that he could not carry items

34

under ten pounds while using a cane, Plaintiff does not explain why
this is the case, and there is no medical evidence to support that
he could not carry any object or that he had to use a cane.

In

fact, his treating physician stated that he could frequently carry
less than ten pounds and occasionally carry ten pounds.

With

regards to Plaintiff’s use of crutches, the ALJ included this in
his RFC, as stated in his decision.

Furthermore, the hypothetical

questions posed to the vocational expert took into account that
Plaintiff used crutches to move.

As elicited by Plaintiff’s

counsel in the hearing testimony, the vocational expert testified
that Plaintiff would not need to lift or carry objects for the data
entry

clerk

position.

The

ALJ’s

decision

is

supported

by

substantial evidence.
C.

Treating Physician
Plaintiff asserts that the ALJ erred by not giving controlling

weight to Plaintiff’s treating physician’s opinion and did not
complete the proper analysis in rejecting parts of the opinion.
The ALJ must evaluate every medical opinion in the record and
decide what weight to give each.
416.927(c).
weight

See 20 C.F.R. §§ 404.1527(c),

The ALJ is required to give good reasons for the

given

a

treating

source’s

404.1527(c)(2), 416.927(c)(2);

opinion.

20

C.F.R.

§§

SSR 96-2p, 1996 WL 374188, at *5

(July 2, 1996).
When the determination or decision . . . is a denial[,]
. . . the notice of the determination or decision must
35

contain specific reasons for the weight given to the
treating source’s medical opinion, supported by the
evidence in the case record, and must be sufficiently
specific to make clear to any subsequent reviewers the
weight the adjudicator gave to the treating source’s
medical opinion and the reasons for that weight.
SSR 96-2p, 1996 WL 374188, at *5.
The regulations require that, when a treating source’s opinion
on the nature and severity of a claimant’s impairments “is wellsupported

by

medically

acceptable

clinical

and

laboratory

diagnostic techniques and is not inconsistent with the other
substantial evidence in [the] case record,” it is to be given
controlling weight.

20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2);

see also Newton v. Apfel, 209 F.3d 448, 455 (5th Cir. 2000); SSR 962p, 1996 WL 374188, at *1.
When the ALJ does not give a treating physician’s opinion
controlling

weight,

he

must

apply

the

following

nonexclusive

factors to determine the weight to give the opinion: (1) the
“[l]ength of the treatment relationship and the frequency of
examination;”

(2)

the

“[n]ature

and

extent

of

the

treatment

relationship;” (3) the relevant medical evidence supporting the
opinion; (4) the consistency of the opinion with the remainder of
the medical record; and (5) the treating physician’s area of
specialization.

20

C.F.R.

Newton, 209 F.3d at 456.

§§

404.1527(c)(2),

416.927(c)(2);

However, the ALJ is only required to

consider these factors in deciding what weight to give a medical
source opinion; he is not required to record in writing every step
36

of the process.

20 C.F.R. §§ 404.1527(c), 416.927(c) (“Unless we

give a treating source’s opinion controlling weight . . . we
consider all of the following factors in deciding the weight we
give to any medical opinion.”)(emphasis added).
Even though the medical opinion and diagnosis of a treating
physician should be afforded considerable weight, “the ALJ has sole
responsibility for determining a claimant’s disability status.”
Martinez v. Chater, 64 F.3d 172, 176 (5th Cir. 1995)(quoting Moore
v. Sullivan, 919 F.2d 901, 905 (5th Cir. 1990)). A medical source’s
statement that the claimant is “disabled” or “unable to work” does
not mean the Commissioner will determine the claimant is, in fact,
disabled.

Spellman

v.

Shalala,

1

F.3d

357,

364

(5th

Cir.

1993)(citing 20 C.F.R. § 404.1527(e)(1)178); see also 20 C.F.R. §§
404.1527(d)(1), 416.927(d)(1).

The determination of disability is

not a medical opinion entitled to deference, but a legal conclusion
within the Commissioner’s scope of authority.

Frank v. Barnhart,

326 F.3d 618, 620 (5th Cir. 2003).
In this case, Plaintiff asserts that it was improper for the
ALJ to disregard Dr. Bailey’s opinion that Plaintiff would need
breaks and would miss at least one day of work a month, and that
the ALJ should have discussed the five Newton factors in making his
decision to dismiss Dr. Bailey’s opinion as unsupported.
discussed Dr. Bailey’s findings, and then explained:

178

This provision was moved to 20 C.F.R. §§ 404.1527(d)(1).

37

The ALJ

SSR 96-2p states that the opinion of a treating physician
should be given controlling weight only if there is no
significant contradictory evidence in the record. There
is no indication of why Dr. Bailey believed [Plaintiff]
would require additional rest breaks from even a
sedentary job or why he might miss one day of work per
month, particularly considering the scarcity of treating
medical visits on the record. The consultative examiner
noted that the claimant had no difficulty bending or
stooping, and he was able to climb ramps or stairs but
not ropes, ladders, or scaffolds.
Because the
consultative examination was conducted particularly to
assess functional abilities such as these, the findings
of the consultative examiner with regard to [Plaintiff’s]
ability to climb, bend, or stoop are given great weight.
Accordingly, for the reasons discussed herein, Dr.
Bailey’s opinion is given some, but not controlling
weight.179
As explained above, the ALJ is required to consider the Newton
factors in weighing the treating physician’s opinion, but the
regulations do not require that all factors be discussed in the
opinion.

Here, the ALJ explained the information he had about the

relationship between Plaintiff and Dr. Bailey, the consistency of
the opinion, and the relevant medical evidence.

The court finds

that the ALJ undertook a proper analysis of why Dr. Bailey’s
opinion was given less weight.
The Fifth Circuit has explained that with good cause, a
treating physician’s opinion may be given lesser weight.
v. Chater, 67 F.3d 558, 566 (5th Cir. 1995).

Leggett

“Good cause for

abandoning the treating physician rule includes ‘disregarding
statements

179

[by

the

treating

physician]

Tr. 20.

38

that

are

brief

and

conclusory,

not

supported

by

medically

acceptable

clinical

laboratory diagnostic techniques, or otherwise unsupported by
evidence.’” Id. Plaintiff takes issue with the ALJ’s disregard of
certain statements of Dr. Bailey’s, but the opinions he disregarded
were, as he explained, conclusory, without support from the medical
evidence, and contradicted by other findings.
finds

that

Plaintiff’s

the

decision

treating

to

disregard

physician

were

The court therefore

certain

supported

statements
by

of

substantial

evidence.
D.

Medical Expert Opinion
Plaintiff contends that the ALJ failed to properly develop the

case in two ways: (1) the ALJ did not obtain an updated medical
opinion with regard to the medical equivalency of Plaintiff’s
combined impairments and (2) the ALJ did not consult a medical
expert with regard to Plaintiff’s RFC.
SSR 96-5p clarifies that equivalence is a decision based on
“medical evidence only” and does not include vocational factors.
SSR 96-5p, 1996 WL 374183, at *4 (July 2, 1996) (citing to 20
C.F.R. §§ 404.1526, 416.926). The ruling further explains that the
requirements

of

listed

impairments

are

usually

objective

and

whether an individual’s impairment meets these requirements is
simply a matter of documentation.

SSR 96-5p, 1996 WL 374183, at

*3.
The claimant has the burden to prove that his impairment or

39

combination of impairments meets or equals a Listing. Selders, 914
F.2d

at

619.

If

a

claimant

does

not

exhibit

all

of

the

requirements of a listed impairment, then medical equivalence may
be

established

by

showing

that

his

unlisted

impairment

or

combination of impairments is equivalent to a listed impairment.
Sullivan v. Zebley, 493 U.S. 521, 531 (1990).

To do so, the

claimant must present medical findings that are at least equal in
duration and severity to the listed findings.
C.F.R. § 416.926(a)).

See id. (citing 20

A court will find that substantial evidence

supports the ALJ’s finding at step three if a plaintiff fails to
demonstrate the specified medical criteria.

Id. at 619-20.

Plaintiff cites to SSR 96-6p,180 1996 WL 374180 (July 2, 1996),
and Brister v. Apfel, 993 F. Supp. 574, 578 (S.D. Tex. 1998), in
support of his arguments that a medical expert should have been
consulted.

“[T]he [ALJ] is responsible for deciding the ultimate

legal question whether a listing is met or equaled.”
1996 WL 374180, at *3 (July 2, 1996).

SSR 96-6p,

As to when to consult a

medical expert, SSR 96-6p explains,
When no additional medical evidence is received, but in

180

SSR 96-6p was superseded on March 27, 2017, by SSR 17-2p. SSR 17-2p
has changed the rule on medical experts stating: “At the hearings level of the
administrative review process, administrative law judges (ALJ) and some attorney
advisors determine whether an individual’s impairment(s) meets or medically
equals a listing at step 3 of the sequential evaluation process. To assist in
evaluating this issue, adjudicators at the hearings level may ask for and
consider evidence from medical experts (ME) about the individual’s impairment(s),
such as the nature and severity of the impairment(s).” This new opinion places
whether to consult a medical expert within the ALJ’s discretion. Therefore, even
if SSR 17-2p was applied retroactively, the result would be the same, as it calls
for a less stringent standard than SSR 96-6p.

40

the opinion of the administrative law judge or the
Appeals Council the symptoms, signs, and laboratory
findings reported in the case record suggest that a
judgment of equivalence may be reasonable; or
When additional medical evidence is received that in the
opinion of the administrative law judge or the Appeals
Council may change the State agency medical or
psychological consultant’s finding that the impairment(s)
is not equivalent in severity to any impairment in the
Listing of Impairments.
SSR 96-6p, 1996 WL 374180, at *4 (July 2, 1996); see also Brister,
993 F. Supp. at 578 n.2 (emphasis added).

The opinion further

explains that “[w]hen an updated medical judgment as to medical
equivalence is required at the administrative law judge level in
either of the circumstances above, the administrative law judge
must call on a medical expert.”
(July 2, 1996).

SSR 96-6p, 1996 WL 374180, at *4

Therefore, if the ALJ believes that any medical

evidence received after a medical opinion was obtained might change
the State agency’s findings, then the ALJ must obtain an updated
opinion.
Plaintiff cites the part of SSR 96-6p about “when additional
medical evidence is received” stating that the ALJ had to obtain a
new medical opinion.

Plaintiff speculates that the ALJ relied on

his own interpretation of the record in determining the RFC and
that too long of a time period lapsed between the nonexamining
physician

determinations

and

the

hearing

and

determinations were not based on a complete record.
contends that the ALJ fully developed the record.

41

that

these

Defendant

In this case, the state agency nonexamining physicians made
their determinations on May 29, 2013, and September 18, 2013.
However, the latest date of Plaintiff’s medical records are records
from Dr. Daniel dated August 20, 2013, and in the disability
determination dated September 18, 2013, these records are listed as
evidence that was considered by the state agency nonexamining
physician.

Therefore, it is unclear what new medical evidence

Plaintiff is contending was not considered in this case that would
render it mandatory for the ALJ to call a medical expert under SSR
96-6p.

Additionally,

the

ALJ

did

not

rely

on

his

own

interpretation of the record in making his determination; rather,
he undertook an extensive analysis of all the medical records
supplied to him in this case.
2.

Medical Expert to Support RFC

Plaintiff argues that the ALJ erred in failing to consult a
medical expert regarding his RFC in light of his combined physical
and mental impairments.
A failure of the ALJ to fully develop a record is not
reversible on its own; rather, a plaintiff must demonstrate that he
was prejudiced

by such failure.

Brock v. Chater, 84 F.3d 726, 728

(5th Cir. 1996). “To establish prejudice, a claimant must show that
[the ALJ] could and would have adduced evidence that might have
altered

the

result.”

Id.

(internal

quotation

marks

omitted)(quoting Kane v. Heckler, 731 F.2d 1216, 1220 (5th Cir.

42

1984)).
In

this

case,

Plaintiff

fails

to

convey

to

what

new

limitations a medical expert would have testified at the hearing
that would have resulted in a finding that Plaintiff was disabled.
Courts do not reverse an ALJ’s decision when a plaintiff cannot
demonstrate that he was prejudiced by deficiencies in the decision.
Brock, 84 F.3d at 729.

Therefore, Plaintiff’s argument is without

merit.
E.

Plaintiff’s Nonexertional Limitations
Plaintiff also asserts that the ALJ erred in failing to

consider his nonexertional limitation of left knee pain and its
limitation on his ability to work.
In his opinion, the ALJ found that Plaintiff’s left knee
osteoarthritis

was

a

severe

impairment.

The

ALJ

considered

Plaintiff’s testimony about his left knee, evidence that Plaintiff
had difficulty walking, standing, and exercising, the MRI medical
evidence demonstrating that Plaintiff had “moderate to severe
osteoarthritis,” and Dr. Bailey’s statements about the left knee
pain.181

Additionally, the ALJ stated that Plaintiff’s obesity “is

presumed to exacerbate his left knee pain as well as cause him some
difficulties

in

ambulating

with

a

prosthetic

device.”182

Plaintiff’s argument is without merit, as the ALJ considered

181

Tr. 17.

182

Id.

43

Plaintiff’s left knee pain in determining his RFC.
F.

Credibility Determination183
The

regulations

explain

that,

when

the

medical

evidence

reveals a medically determinable impairment that could produce pain
or other symptoms, the analysis is to focus on the intensity,
persistence, and limiting effects of the complained-of symptom to
determine how it limits the claimant’s capacity for work.

20

C.F.R. 404.1529(c)(1); see also SSR 96-7p, 1996 WL 374186, at *2
(July 2, 1996)(clarifying 20 C.F.R. 404.1529(c)).

In order to

evaluate the intensity, persistence, and limiting effects of the
pain and other symptoms, the ALJ considers all available evidence,
including medical history, medical signs and laboratory findings,
and statements of treating providers, and the subjective testimony
of the claimant. 20 C.F.R. § 404.1529(c); see also SSR 96-7p, 1996
WL 374186, at *2 (July 2, 1996).
The ALJ must make a credibility finding any time a claimant’s
subjective testimony is not substantiated by objective medical
evidence.

SSR 96-7p, 1996 WL 374186, at *2, 4 (July 2, 1996).

In

addition to the objective medical evidence, the ALJ must consider:
(1) the claimant’s daily activities; (2) the location, duration,

183

SSR 96-7p was rescinded on March 27, 2017, and district courts are
divided over whether SSR 16-3p applies retroactively. See, e.g., Whitaker v.
Colvin, Civil Action No. H-15-2204, 2017 WL 896160, at *21 (S.D. Tex. Feb. 15,
2017)(slip op.)(citing Mayberry v. Colvin, No. G-15-330, 2016 WL 7686850, at *5
(S.D. Tex. Nov. 28, 2016)). In Mayberry, the court pointed out that SSR 16-3p
“was designed to clarify rather than change existing law.” As the parties have
not contested the applicability of SSR 96-7p, the ruling in effect at the time
of the ALJ’s decision, the court will apply SSR 96-7p in this case.

44

frequency and intensity of the claimant’s symptoms; (3) factors
that precipitate and aggravate the symptoms; (4) the medication the
claimant takes and any side effects; (5) other treatment that the
claimant has received for relief of the symptoms; (6) any other
measures used by the claimant for relief; and (7) any other
relevant factors.
include

20 C.F.R. § 404.1529(c)(3).

consistency,

both

internally

and

Other factors may
with

other

record

evidence, treatment history, other sources of information, and
observations of the claimant.

SSR 96-7p, 1996 WL 374186, at *5-8

(July 2, 1996).
The ALJ must articulate the reasons for the credibility
finding in his decision.
It is not sufficient to make a conclusory statement that
“the individual’s allegations have been considered” or
that “the allegations are (or are not) credible.” It is
also not enough for the adjudicator simply to recite the
factors that are described in the regulations for
evaluating symptoms. The determination or decision must
contain specific reasons for the finding on credibility,
supported by the evidence in the case record, and must be
sufficiently specific to make clear to the individual and
to any subsequent reviewers the weight the adjudicator
gave to the individual’s statements and the reasons for
that weight.
Id. at *4.

Although the ALJ is required to consider subjective

evidence of pain and other symptoms along with other record
evidence, he has the discretion to determine whether pain and other
symptoms are disabling.

See Wren, 925 F.2d at 128.

“While an ALJ

must consider an applicant’s subjective complaints of pain, he is
permitted to examine objective medical evidence in testing the
45

applicant’s credibility.

He may find, from the medical evidence,

that an applicant’s complaints of pain are not to be credited or
Johnson v. Heckler, 767 F.2d 180, 182 (5th Cir.

are exaggerated.”
1985).

Here, Plaintiff argues that the ALJ provided insufficient
bases for finding Plaintiff’s testimony less than fully credible.
The
authority

ALJ

followed

by,

first,

the

regulations

determining

that

and

supporting

Plaintiff’s

legal

“medically

determinable impairments could reasonably be expected to cause the
alleged symptoms” and, then, evaluating the medical records, the
treatment

notes

of

Plaintiff’s

complaints.184

subjective

The

physicians,

ALJ

and
that

concluded

Plaintiff’s
Plaintiff’s

“statements concerning the intensity, persistence and limiting
effects of these symptoms are not entirely credible for the reasons
explained

in

decision.”185

this

insufficient

on

assessment,

the

its
ALJ’s

own

to

later

While

explain

this

the

statement

ALJ’s

acknowledgment

of

was

credibility
reasons

why

Plaintiff’s subjective complaints were discounted, fully complied
with the regulations.
The ALJ noted that Plaintiff’s use of his prosthesis was
inconsistent, repeating Plaintiff’s testimony that he preferred his
crutches,

despite

184

fact

that

Tr. 16-20.

185

the

Tr. 17.

46

he

showed

up

to

multiple

appointments wearing his prothesis.

Additionally, the ALJ found

that there was a “scarcity of treating medical visits in the
record.”186
Even if the ALJ’s analysis of credibility was insufficient,
the court finds the failure to be harmless.

See Audler v. Astrue,

501 F.3d 446, 448 (5th Cir. 2007)(recognizing that, even if an error
occurred, it is harmless “as long as ‘the substantial rights of a
party have not been affected’”)(quoting Mays v. Bowen, 837 F.2d
1362, 1364 (5th Cir. 1988)).
no

possibility

that

the

Harmless error exists when there is

ALJ

conclusion absent the error.

would

have

reached

a

different

Bornette v. Barnhart, 466 F. Supp.2d

811, 816 (E.D. Tex. 2006)(citing Frank, 326 F.3d at 622).
Here,

regardless

of

whether

Plaintiff’s

statements

credible, the outcome would have been the same.

were

The medical

evidence supported that Plaintiff could utilize a prosthetic leg to
ambulate and was not medically required to utilize crutches.

The

court finds that Plaintiff’s substantive rights were not affected
by the ALJ’s failure to discourse at length about Plaintiff’s
credibility.
G.

Physical and Mental Demands of Past Relevant Work
Plaintiff asserts that the ALJ did not include findings of

fact about the mental and physical demands of his past relevant
work, as required by SSR 82-62.

186

Tr. 20.

47

SSR 82-62 requires that the ALJ’s rationale for a disability
determination “be written so that a clear picture of the case can
be obtained.”

SSR 82-62, 1982 WL 31386, at *2 (Jan. 1, 1982).

If

the ALJ finds that a claimant:
has the capacity to perform a past relevant job, the
determination or decision must contain . . . the
following specific findings of fact:
1. A finding of fact as to the individuals’ RFC.
2. A finding of fact as to the physical and mental
demands of the past job/occupation.
3. A finding of fact that the individual’s RFC
would permit a return to his or her past job or
occupation. Id.
Plaintiff’s argument that the ALJ failed to make specific
findings regarding the physical and mental demands of Plaintiff’s
past relevant work as required by SSR 82-62 is unpersuasive.

The

ALJ found that Plaintiff had the following RFC:
to perform sedentary work as defined in 20 C.F.R.
404.1567(a) and 416.967(a) except he can lift or carry
ten pounds occasionally and less than ten pounds
frequently; he can stand or walk for two hours in an
eight-hour day; he can sit for six hours in an eight-hour
day; he may never climb ropes, ladders, or scaffolds; he
can occasionally climb ramps or stairs; he is able to use
crutches to ambulate; he can occasionally balance, stoop,
kneel, or crouch; he can never crawl; he can perform
detailed but not complex tasks; and he may not work at a
forced or assembly line pace.187
The ALJ found that Plaintiff’s past positions as a data entry
clerk and proofer were semi-skilled, sedentary work. Additionally,
the ALJ alternatively found that even though Plaintiff could
perform his past relevant work, there were other jobs in the

187

Tr. 16.

48

national economy that he was capable of performing, including order
clerk, telephone solicitor, or surveillance system operator.
The ALJ did not err in considering the data entry clerk
position as part of Plaintiff’s past relevant work and concluding
that Plaintiff could return to that position. In addition, the ALJ
made the findings required by SSR 82-62.

Therefore, Plaintiff’s

arguments are without merit.
IV. Conclusion
Based on the foregoing, the court DENIES Plaintiff’s motion
for summary judgment and GRANTS Defendant’s motion for summary
judgment.
SIGNED in Houston, Texas, this 27th day of September, 2017.

______________________________
U.S. MAGISTRATE JUDGE

49