Gordwin v. Colvin
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
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
NANCY A. BERRYHILL,1
ACTING COMMISSIONER OF THE
SOCIAL SECURITY ADMINISTRATION, §
September 27, 2017
David J. Bradley, Clerk
CIVIL ACTION NO. H-16-1474
Pending before the court2 are Plaintiff’s Motion for Summary
Judgment (Doc. 9) and Defendant’s Cross-Motion for Summary Judgment
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
Plaintiff filed this action pursuant to 42 U.S.C. §§ 405(g)
and 1383(c)(3) for judicial review of an unfavorable decision by
(“Commissioner” or “Defendant”) regarding Plaintiff’s claims for
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).
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
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
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
See Tr. of the Admin. Proceedings (“Tr.”) 34, 38.
See Tr. 32-38.
See Tr. 281-85.
See Tr. 286.
See Tr. 343.
See Tr. 292.
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
On June 28, 2012, Plaintiff underwent a consultative physical
examination with A. Rashad Cheema, M.D., (“Dr. Cheema”), who noted
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,
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
See Tr. 304-06.
See Tr. 304.
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
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
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.
See Tr. 306.
See Tr. 307.
See Tr. 377.
See Tr. 369.
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
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
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
See Tr. 368.
See Tr. 409-11.
See Tr. 409.
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
Dr. Bailey indicated that Plaintiff would require
two unscheduled ten-minute breaks during a work day.29
In terms of
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
Daryl K. Daniel, M.D., (“Dr. Daniel”) noted that
See Tr. 410.
See Tr. 410-11.
See Tr. 411.
See Tr. 402-04.
See Tr. 402.
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
radiologist noted that a future MRI may be needed if Plaintiff’s
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
See Tr. 404.
See Tr. 403.
See Tr. 404.
See Tr. 405.
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
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
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
See Tr. 336-56.
See Tr. 350, 353.
See Tr. 322-30.
See Tr. 323.
to walk on his own at a slow pace.48
After Plaintiff underwent a
depressive disorder and borderline intellectual functioning.49
a result of these diagnoses, Dr. Pollock assessed the following
functional limitations: (1) episodes of depression; (2) loss of
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
Dr. Pollock assigned Plaintiff a global
assessment of functioning (“GAF”) score of fifty-one, showing
Plaintiff visited Tonna D. Pate, Psy.D., (“Dr. Pate”) on May
Plaintiff’s reported symptoms included: feeling depressed; low
See Tr. 324.
See Tr. 326.
See Tr. 326-27.
See Tr. 327-28.
See Tr. 330.
See Tr. 331-34.
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,”
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
Additionally, Dr. Pate mentioned that Plaintiff
wore his prosthetic leg, walked slowly with a limp, and used a
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
See Tr. 331.
See Tr. 333.
See Tr. 333.
See Tr. 332.
See Tr. 397-400.
over the past year” due to his depression.61
Dr. Anderson found
that Plaintiff had major depression and noted that his psychosocial
chronic knee pain, but said that his prognosis was “[f]air, and
could be improved with appropriate psychiatric management.”62
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
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
Samaratunga”), a nonexamining physician, evaluated Plaintiff’s
physical residual functional capacity (“RFC”).65
addressed Plaintiff’s physical abilities, finding that he was
capable of occasionally of lifting and/or carrying up to twenty
See Tr. 166-71.
See Tr. 205-06.
See Tr. 309-16.
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
to his right leg amputation, Dr. Samaratunga noted that Plaintiff
had limitations in his lower extremities.67
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
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
See Tr. 310.
See Tr. 311.
See Tr. 312-13.
See Tr. 314.
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
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
reported an inability to walk or stand for more than five to ten
Plaintiff’s daily routine included bathing, watching television,
watching more television, spending time with his family, and
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
See Tr. 194.
See Tr. 195.
See Tr. 227.
See Tr. 213-20.
See Tr. 213.
See Tr. 214.
See Tr. 214-15.
Plaintiff did not prepare his own
See Tr. 216.
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
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
could walk for five to ten minutes before requiring twenty minutes
See Tr. 215-16.
See Tr. 216.
See Tr. 217.
See Tr. 218.
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
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
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,
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
See Tr. 218-19.
See Tr. 220.
See Tr. 70-93.
See Tr. 237-41.
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
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
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
Plaintiff reported that he did not spend time with
See Tr. 237, 240.
See Tr. 242-49.
See Tr. 242.
See Tr. 243.
See Tr. 243-45.
See Tr. 246.
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
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
Plaintiff would get easily “frustrated” with others,
not finish what he started, and could understand some instructions,
but had difficulty with spoken instructions.105
prosthesis or crutches.106
Plaintiff noted that he also used a
The medication Plaintiff took caused drowsiness.108
application at the initial and reconsideration levels.109 Plaintiff
See Tr. 246-47.
See Tr. 247.
See Tr. 248.
See Tr. 249.
See Tr. 115-21, 125-29.
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
At the hearing, Plaintiff and a vocational expert (“VE”),
Cheryl Swisher (“Swisher” or “VE”) testified.112
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
See Tr. 130-31.
See Tr. 27-57.
See Tr. 27-57.
See Tr. 27.
See Tr. 32.
See Tr. 33.
See Tr. 33, 37-38.
See Tr. 36.
Plaintiff testified that he was thirty-seven years old, a
high-school graduate, never married, and had no children.119
right leg was amputated when he was fifteen years old and since
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
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
See Tr. 38-39.
See Tr. 51-52.
See Tr. 38.
See Tr. 40.
See Tr. 41.
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
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
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
Plaintiff’s doctor had diagnosed arthritis in his left
See Tr. 43-44.
See Tr. 44.
See Tr. 45-46.
See Tr. 46-47.
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
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
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
See Tr. 47.
See Tr. 47-48.
See Tr. 48-49.
See Tr. 52-55.
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.
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.
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
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
Additionally, the ALJ asked if these positions would allow for
See Tr. 35.
See Tr. 53.
See Tr. 53-54.
See Tr. 54.
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
professional experience as a former data entry clerk.150
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,
See Tr. 11-22.
2011, the alleged onset date.152
The ALJ recognized the following
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
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
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
See Tr. 13.
20 C.F.R. Pt. 404, Subpt. P, App. 1.
See Tr. 14-16.
See Tr. 16.
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
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;
Anderson; a report from a nonexamining State agency psychologist;
and a medical source statement from his treating physician, Dr.
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
the ALJ stated that it was unclear from the record why Dr. Bailey
See Tr. 16-21.
See Tr. 20-21.
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
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
See Tr. 20.
See Tr. 20-21.
See Tr. 16-21.
See Tr. 16.
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
The ALJ included the following limitations in Plaintiff’s
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
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
including positions such as order clerk, telephone solicitor, or
See Tr. 16.
See Tr. 21.
See Tr. 21.
See Tr. 22.
See Tr. 21.
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
After receiving the Appeals Council’s denial,
Plaintiff sought judicial review of the decision by the court.176
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
Waters v. Barnhart, 276 F.3d 716, 718 (5th Cir. 2002).
In order to obtain disability benefits, a claimant bears the
ultimate burden of proving he is disabled within the meaning of the
Wren v. Sullivan, 925 F.2d 123, 125 (5th Cir. 1991).
the applicable legal standard, a claimant is disabled if he is
unable “to engage in any substantial gainful activity by reason of
See Tr. 21-22.
See Tr. 22.
See Tr. 1-4.
See Doc. 1, Pl.’s Compl.
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).
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
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.
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.”
has the responsibility of deciding any conflict in the evidence.
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
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
In other words, the court is to defer to the decision
of the Commissioner as much as is possible without making its
Plaintiff requests judicial review of the ALJ’s decision to
decision contains the following errors: (1) the ALJ erred by
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.
Plaintiff did not meet Listings 1.02A or 1.05B.
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
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
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.,
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
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
In further explanation, the regulation section states that
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
Examples given are, without limitation, “the
inability to walk without the use of a walker, two crutches or two
canes, the inability to walk a block at a reasonable pace on rough
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
Here, the ALJ explained that Plaintiff had a prosthesis for
his right leg, but elected to utilize crutches.
evidence supports this determination.
In his testimony, Plaintiff
testified that he preferred to use crutches because his prosthesis
gave him a rash.
However, many of Plaintiff’s doctors, including
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.
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
Plaintiff’s reports indicated that he could walk for short periods
of time before resting and that he could travel on his own.
Plaintiff contends that he could not move due to his obesity and
left knee arthritis, his treating physician, Dr. Bailey, stated
that Plaintiff could stand or walk for two hours in an eight-hour
workday despite the arthritis and obesity.
evidence supports the ALJ’s decision that Plaintiff did not meet
Listings 1.05B or 1.02A.
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.”
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
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.
fact, his treating physician stated that he could frequently carry
less than ten pounds and occasionally carry ten pounds.
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
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.
See 20 C.F.R. §§ 404.1527(c),
The ALJ is required to give good reasons for the
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
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
diagnostic techniques and is not inconsistent with the other
substantial evidence in [the] case record,” it is to be given
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
factors to determine the weight to give the opinion: (1) the
“[l]ength of the treatment relationship and the frequency of
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
Newton, 209 F.3d at 456.
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
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,
1993)(citing 20 C.F.R. § 404.1527(e)(1)178); see also 20 C.F.R. §§
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:
This provision was moved to 20 C.F.R. §§ 404.1527(d)(1).
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.
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
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
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).
“Good cause for
abandoning the treating physician rule includes ‘disregarding
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.
The court therefore
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
whether an individual’s impairment meets these requirements is
simply a matter of documentation.
SSR 96-5p, 1996 WL 374183, at
The claimant has the burden to prove that his impairment or
combination of impairments meets or equals a Listing. Selders, 914
requirements of a listed impairment, then medical equivalence may
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
“[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).
As to when to consult a
medical expert, SSR 96-6p explains,
When no additional medical evidence is received, but in
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.
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
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
determinations were not based on a complete record.
contends that the ALJ fully developed the record.
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
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
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.
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
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
omitted)(quoting Kane v. Heckler, 731 F.2d 1216, 1220 (5th Cir.
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
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
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
Additionally, the ALJ stated that Plaintiff’s obesity “is
presumed to exacerbate his left knee pain as well as cause him some
Plaintiff’s argument is without merit, as the ALJ considered
Plaintiff’s left knee pain in determining his RFC.
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.
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
SSR 96-7p, 1996 WL 374186, at *2, 4 (July 2, 1996).
addition to the objective medical evidence, the ALJ must consider:
(1) the claimant’s daily activities; (2) the location, duration,
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.
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
20 C.F.R. § 404.1529(c)(3).
Other factors may
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
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
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.
Here, Plaintiff argues that the ALJ provided insufficient
bases for finding Plaintiff’s testimony less than fully credible.
determinable impairments could reasonably be expected to cause the
alleged symptoms” and, then, evaluating the medical records, the
“statements concerning the intensity, persistence and limiting
effects of these symptoms are not entirely credible for the reasons
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
appointments wearing his prothesis.
Additionally, the ALJ found
that there was a “scarcity of treating medical visits in the
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)).
Harmless error exists when there is
conclusion absent the error.
Bornette v. Barnhart, 466 F. Supp.2d
811, 816 (E.D. Tex. 2006)(citing Frank, 326 F.3d at 622).
credible, the outcome would have been the same.
evidence supported that Plaintiff could utilize a prosthetic leg to
ambulate and was not medically required to utilize crutches.
court finds that Plaintiff’s substantive rights were not affected
by the ALJ’s failure to discourse at length about Plaintiff’s
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.
SSR 82-62 requires that the ALJ’s rationale for a disability
determination “be written so that a clear picture of the case can
SSR 82-62, 1982 WL 31386, at *2 (Jan. 1, 1982).
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
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.
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
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.
arguments are without merit.
Based on the foregoing, the court DENIES Plaintiff’s motion
for summary judgment and GRANTS Defendant’s motion for summary
SIGNED in Houston, Texas, this 27th day of September, 2017.
U.S. MAGISTRATE JUDGE
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