Hernandez v. Astrue

Filing 21

MEMORANDUM OPINION AND ORDER. Signed by Judge Anne T. Berton. (dl1)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION

LETICIA HERNANDEZ,
Plaintiff,
v.
CAROLYN W. COLVIN,
ACTING COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION1,
Defendant.

§
§
§
§
§
§
§
§
§

NO. EP-10-CV-00284-KC-ATB
(by consent)

MEMORANDUM OPINION AND ORDER
This is a civil action seeking judicial review of an administrative decision. Plaintiff
appeals from the decision of the Commissioner of the Social Security Administration
(“Commissioner”), denying her claim for Disability Insurance Benefits (“DIB”) under Title II of
the Social Security Act. Jurisdiction is predicated upon 42 U.S.C. § 405(g). Both parties have
consented to trial on the merits before a United States Magistrate Judge.

The case was

transferred to this Court for trial and entry of judgment pursuant to 28 U.S.C. § 636(c) and
Appendix C to the Local Court Rules of the Western District of Texas. After considering the
briefs, the record evidence of the administrative proceedings, and the written decision of the
Administrative Law Judge (“ALJ”), the Court AFFIRMS the final decision of the Commissioner.
BACKGROUND
Plaintiff LETICIA HERNANDEZ was born on June 16, 1960, making her 49 years old

Carolyn W. Colvin became Acting Commissioner of the Social Security Administration on
February 14, 2013. Pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure and the
last sentence of 42 U.S.C. § 405(g), she is substituted as the Defendant herein.
1

1

at the time of the ALJ's decision. (R. 52).2 Plaintiff was 48 at the time of the ALJ hearing, on
June 6, 15, 2009. (R. 28). She completed high school and two years of college. (R. 28-29). She
speaks both English and Spanish and prefers to communicate in English. (R. 270). She has
previous work experience as a data entry clerk and as a payroll clerk. (R. 29, 46). She testified
that she can no longer work due to depression, panic disorder with agoraphobia, anxiety,
stomach problems, bladder problems, swelling of the knees, and pain in her back, right arm, and
left ankle. (R. 31-43).
PROCEDURAL HISTORY
Plaintiff filed her DIB application on May 25, 2007, alleging disability since May 7,
2007.

(R. 31, 107-11, 130). Plaintiff’s application was initially denied on September 10, 2007,

and then again denied upon reconsideration on February 26, 2008. (R. 54, 62).

Plaintiff

requested and was granted a hearing before an ALJ and a remote video hearing was held on June
15, 2009, at which Plaintiff and a vocational expert testified. (R. 24-51, 71).
On July 31, 2009, the ALJ issued a decision finding that Plaintiff could perform a
reduced range of light work despite experiencing the following severe impairments: obesity,
osteoarthritis, osteoporosis, muscle strain, bladder problems, depression disorder not otherwise
specified (NOS), panic disorder with agoraphobia, mild lumbar spondylosis, lumbar disc
bulging, and status-post left ankle fracture. (R. 12, 16). Despite these findings, the ALJ found
that Plaintiff retained the ability to perform her past relevant work as a data entry clerk and so
Plaintiff was not disabled. (R. 18-19). Plaintiff’s request for review was denied by the Appeals
Court documents filed in this case are designated by “(Doc. [docket entry number(s)]:[page
number(s)]).” Administrative proceedings are designated by “(R. [page number(s)]).”
2

2

Council on April 29, 2010. (R. 3-5).
Plaintiff filed her complaint on August 2, 2010. (Doc. 1). On December 7, 2010, the
Commissioner filed an answer. (Doc. 10). The next day, December 8, 2010, a transcript of the
administrative proceedings was filed. (Doc. 11). The District Judge, with the consent of both
parties, subsequently entered an order transferring the case to U.S. Magistrate Judge Richard P.
Mesa.3 (Doc. 19). On April 11, 2011, Plaintiff filed his brief in support of reversing the
Commissioner's decision and remanding for an award of benefits or, alternatively, for additional
administrative proceedings. (Doc. 16). On May 10, 2011, the Commissioner's brief in support of
the decision to deny benefits was filed. (Doc. 17). This matter is now ripe for decision.
DISCUSSION
A.

Standard of Review
This Court's review of the Commissioner's decision to deny benefits is limited to two

inquires: (1) whether the decision is supported by substantial evidence and (2) whether the
Commissioner used the proper legal standards to evaluate the evidence. Myers v. Apfel, 238
F.3d 617, 619 (5th Cir. 2001), citing Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994),
cert. denied, 514 U.S. 1120 (1995); 42 U.S.C. § 405(g). Substantial evidence is more than a
scintilla, but less than a preponderance, and is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971). A
finding of “no substantial evidence” will be found only where there is a “conspicuous absence of
This case was reassigned to this Court on December 6, 2012, by order of Judge Richard P.
Mesa. (Doc. 20).
3

3

credible choices” or “no contrary medical evidence.” Johnson v. Bowen, 864 F.2d 340, 343–44
(5th Cir. 1988) (per curiam) (citing Hames v. Heckler, 707 F.2d 162, 164 (5th Cir. 1983)).
The determination of whether there is substantial evidence to support the fact findings of
the Commissioner does not involve reweighing the evidence, or trying the issues de novo.
Newton v. Apfel, 209 F.3d 448, 452 (5th Cir. 2000); Haywood v. Sullivan, 888 F.2d 1463, 1466
(5th Cir. 1989).

The court may not substitute its own judgment “even if the evidence

preponderates against the [Commissioner's] decision” because substantial evidence is less than a
preponderance. Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir. 1988). Conflicts in the evidence
are for the Commissioner and not the courts to resolve. Spellman v. Shalala, 1 F.3d 357, 360
(5th Cir. 1993).
The court's role is to “scrutinize the record in its entirety to determine whether substantial
evidence supports” the Commissioner's findings. Randall v. Sullivan, 956 F.2d 105, 109 (5th
Cir.1992) (citing Ransom v. Heckler, 715 F.2d 989, 992 (5th Cir. 1983)) (per curiam). “The role
of the courts in this quintessentially administrative process is extremely narrow” and “the
Commissioner's decision is granted great deference.” Lewis v. Weinberger, 515 F.2d 584, 586
(5th Cir. 1975); Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995). If the Commissioner
applied the proper principles of law and his findings are supported by substantial evidence, they
are conclusive and must be affirmed. Spellman v. Shalala, 1 F.3d at 360. Conversely, if the
Commissioner's findings are not supported by substantial evidence, or the Commissioner
incorrectly applied the law, the reviewing court may, inter alia, reverse the Commissioner's

4

decision and remand the case for further proceedings. Murkeldove v. Astrue, 635 F.3d 784, 792
(5th Cir. 2011).
B.

Evaluation Process and Burden of Proof
“Disability” means an “inability to engage in any substantial gainful activity by reason of

any medically determinable physical or mental impairment which can be expected to result in
death or which has lasted or can be expected to last for a continuous period of not less than 12
months.” Sinayi v. Astrue, No. 3:11-CV-2770-D, 2012 WL 3234414, at *2 (N.D. Tex. Aug. 9,
2012) (quoting 42 U.S.C. § 423(d)(1)(A)). In determining disability, the ALJ makes his/her
findings according to a sequential five-step evaluation. 20 C.F.R. § 404.1520. A finding that a
claimant is disabled or not disabled at any point in the process is conclusive and terminates the
Commissioner's analysis. Greenspan v. Shalala, 38 F.3d at 236.
In the first step, the ALJ determines whether the claimant is currently engaged in
substantial gainful activity. 20 C.F.R. § 404.1520(b). An individual who is working and
engaging in substantial gainful activity will not be found disabled regardless of her medical
condition or her age, education and work experience. 20 C.F.R. § 404.1520(b).
The ALJ then determines whether the claimant's impairment is severe under the second
step. 20 C.F.R. § 404.1520(c) (1999); Stone v. Heckler, 752 F.2d 1099, 1101 (5th Cir. 1985).4

“[A]n impairment can be considered as not severe only if it is a slight abnormality [having]
such minimal effect on the individual that it would not be expected to interfere with the
individual’s ability to work, irrespective of age, education or work experience.” Stone, 752 F.2d
at 1101. Any application of this standard will be presumed incorrect unless “the correct standard
is set forth by reference to this opinion (Stone) or another of the same effect, or by an express
statement that the construction we give to 20 C.F.R. § 404.1520(c) is used. Id. at 1106.

4

5

An individual who does not have a “severe impairment” will not be found to be disabled. 20
C.F.R. § 404.1520(c) (1999).
Under the third step, an individual who meets or equals a listed impairment in Appendix
1 of the regulations will be considered disabled without the consideration of vocational factors.
20 C.F.R. § 404.1520(d). If the claimant does not qualify under the Listings, the evaluation
continues to the fourth step.
The fourth step requires a review of the claimant's residual functioning capacity (“RFC”)
and the demands of her past relevant work.5 20 C.F.R. § 404.1520(e). If an individual is capable
of performing the work she has done in the past, a finding of “not disabled” will be made. 20
C.F.R. § 404.1520(e).
If an individual's impairment precludes her from performing her past relevant work, the
fifth and final step evaluates the claimant's ability, given her residual capacities and her age,
education and work experience, to do other work. If an individual's impairment precludes her
from performing her past relevant work, she will be found to be disabled.

20 C.F.R. §

404.1520(f).
An individual applying for supplemental security income benefits bears the initial burden
of proving that she is disabled for purposes of the Social Security Act. Selders v. Sullivan, 914
F.2d 614, 618 (5th Cir. 1990). The claimant bears the burden of proof on the first four steps of
the sequential analysis, and once met, the burden shifts to the Commissioner to show that there is
Past relevant work is work that was done by the claimant within the past 15 years, that was
substantial gainful activity, and that lasted long enough for the claimant to learn to do it. 20
C.F.R. § 404.1560(b).

5

6

other substantial gainful employment available that the claimant is capable of performing.
Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987); Anderson v. Sullivan, 887 F.2d 630, 632 (5th
Cir. 1989).

The Commissioner may meet this burden by the use of the opinion testimony of

vocational experts or by the use of administrative guidelines provided in the form of regulations.
Rivers v. Schweiker, 684 F.2d 1144, 1155 (5th Cir. 1982). If the Commissioner proves other
work exists which the claimant can perform, the claimant is given the chance to prove that she
cannot, in fact, perform that work. Anderson v. Sullivan, 887 F.2d at 632.
C.

ALJ’s Decision
The ALJ issued a decision on July 31, 2009. Following the sequential steps, the ALJ first

determined that Plaintiff had not engaged in substantial gainful activity since May 7, 2007, the
alleged onset date. (R. 12).

At step two, the ALJ determined that Plaintiff had the following

severe impairments: depression disorder NOS, panic disorder with agoraphobia, obesity,
osteoarthritis, osteoporosis, mild lumbar spondylosis, lumbar disc bulging, muscle strain, statuspost left ankle fracture, and bladder problems. (R. 12).
The ALJ found that Plaintiff did not have an impairment or combination of impairments
that met or medically equaled the criteria of any listed impairment under step three. (R. 15).
The ALJ found very little objective medical evidence in Plaintiff’s treatment record and none
that established a Listing-level impairment. (R. 15-16). Specifically, the ALJ determined that
[Plaintiff] has the residual functional capacity to perform light work as defined in
20 CFR 404.1567(c). Specifically, she can lift and carry up to twenty pounds
occasionally and 10 pounds frequently. She can sit 6 hours and stand and/or walk
6 hours in an 8 hour work day. She cannot climb ropes, ladders, or scaffolds, but
she can occasionally climb ramps and stairs. She should never perform work

7

involving unprotected heights. She can occasionally kneel, bend and stoop.
[Plaintiff] can occasionally overhead reach with her right hand (her dominant
hand). [Plaintiff] is capable of understanding, carrying out and remembering
detailed but not complex instructions.
(R. 16).
Based on this RFC, the ALJ at step four found that Plaintiff retained the ability to
perform her past relevant work as a data entry clerk. (R. 18). Accordingly, the ALJ ruled that
the Plaintiff was not disabled within the meaning of the Social Security Act and that further
analysis of the Plaintiff’s disability claim under step five was unnecessary. (R. 19).
E.

Discussion
Plaintiff asserts that the ALJ erred in finding that she retained the ability to perform her

past relevant work. She challenges the ruling on two grounds. Plaintiff claims that the ALJ
failed to consider her moderate limitation in social functioning and her bladder problems when
determining her RFC. (Doc. 16:3). She also argues that the ALJ’s opinion was not supported by
substantial evidence because the testimony of the vocational expert was flawed. In particular,
Plaintiff argues that the hypothetical presented to the vocational expert did not account for all of
her limitations. (Doc. 16:6-8). The Court will address each of Plaintiff’s claims in turn.
1. Failure to Consider Limitations
Plaintiff claims in her first issue that the ALJ failed to consider all of her limitations in
determining her RFC. Plaintiff argues this was error because a claimant's RFC finding must
include all limitations supported by the record, even those that are not severe. 20 C.F.R. §§
404.1545(e) and 416.945(e). Specifically, Plaintiff alleges that the ALJ failed to consider her
moderate limitation in social functioning and her bladder problems. (Doc 16:3). According to

8

the Commissioner, the ALJ did account for both the moderate limitation in social functioning as
well as Plaintiff’s bladder problems. (Doc. 17:4-7). Despite Plaintiff’s claim of error, this Court
holds that the ALJ did properly consider both her moderate limitation in social functioning and
her bladder problems for the reasons stated below.
a. Whether the ALJ Disregarded a Social Functioning Limitation
Plaintiff notes that Dr. Schutte, the consultative examining psychologist, diagnosed
Plaintiff with panic disorder with agoraphobia, depressive disorder NOS and a prior history of
alcohol abuse on January 31, 2008. (Doc. 16:4).

During this examination, Dr. Schutte found

her to have a Global Assessment of Functioning score of 60.6 Plaintiff states that her score is
indicative of someone suffering from “moderate symptoms (e.g., flat affect and circumstantial
speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school
functioning (e.g., few friends, conflicts with peers or coworkers).” (Doc. 16:4).
In addition to ignoring the GAF score, Plaintiff also contends that the ALJ disregarded
her self-reporting to Dr. Schutte that she felt nervous around others at work, experienced panic
attacks on the job, worried about going to work, and had anxiety around others. (Doc. 16:4-5).
Finally, Plaintiff states that she was being treated by her regular physician, Dr. Guzman, for
depression, indicated by the various anti-depressants he had prescribed her. (Doc. 16:4).
First, a GAF score is not determinative of a claimant's ability to work. Fuller v. Astrue,

GAF is a standard measurement of an individual's overall functioning level. The GAF score is a
subjective determination that represents the clinician's judgment of the individual's overall level
of functioning with respect to psychological, social and occupational functioning, on a
hypothetical continuum of mental health-illness. Diagnostic and Statistical Manual of Mental
Disorders, Text Revised, pp. 25–30 (4th ed. 2000). See also Muth-Willett v. Astrue, 1:11-CV1547, 2012 WL 2862614, at*3 n. 2 (W.D. La. May 9, 2012).

6

9

No. 4:09–CV–197–A, 2010 WL 5566819, at *8 (N.D.Tex. Oct.13, 2010), adopted in 2011 WL
94549 (N.D.Tex. Jan.11, 2011). Federal courts have specifically declined to find a link between
a claimant's GAF score and her ability or inability to work. See 65 Fed.Reg. 50746, 5076465
(Aug. 21, 2000) (declining to endorse the GAF scale for use in Social Security and SSI disability
programs and stating that the GAF scale “does not have a direct correlation to the severity
requirements in our mental disorders listings”); see also, e.g., Andrade v. Astrue, No.
4:11–CV–318–Y, 2012 WL 1106864, at *8 (N.D.Tex. Feb. 13, 2012), adopted in 2012 WL
1109476 (N.D.Tex. Apr. 2, 2012).
Moreover, the GAF score was just one diagnostic tool Dr. Schutte used in his evaluation
of the Plaintiff. (R. 270-74). Even when the ALJ does not expressly mention the GAF score, the
Fifth Circuit has held that an express mention of the medical visit in which the plaintiff received
the score suggests that the ALJ did in fact consider it. See Hoelck v. Astrue, 261 Fed. Appx. 683,
685-86 (5th Cir. 2008). Here, in fact, the ALJ did mention the GAF score but used it in context
with the rest of Dr. Schutte’s evaluation. (R. 14).
The ALJ noted that Plaintiff self-reported to Dr. Schutte a ten year history of depression.
(R. 270). She stated that she gets nervous around her coworkers and experienced panic attacks at
work. (R. 270). She also reported having difficulty concentrating and remembering tasks. (R.
270). In addition, Plaintiff reported that she spends her days “cleaning, cooking, and caring for
her mother,” and she preferred being away from her home with others, rather than alone. (R.
272). Dr. Schutte found that the Plaintiff appeared fully oriented; her cognitive functions
appeared grossly intact as she was alert and responsive; she demonstrated no speaking deficits or
delusions; and her attention, concentration, and long-term memory appeared normal. (R. 271-

10

72). Based on the examination and Plaintiff’s subjective description of her abilities, and despite
the lack of treating medical records to support the Plaintiff’s subjective claims of a panic
disorder, Dr. Schutte assessed Plaintiff with a panic disorder with agoraphobia and a depressive
disorder NOS. (R. 272). The ALJ discussed Dr. Shutte’s determination in his report. (R.14).
Finally, Plaintiff concedes she did not receive any mental health treatment from a
psychiatrist, but claims that her general physician’s treatment of her depression demonstrates the
presence of a mental condition. (Doc. 16:4). But while Plaintiff’s primary care physician
allegedly prescribed her Paxil, Zoloft, Sertraline, and Venlafaxine, the medical records do not
include any diagnosis of an anxiety disorder or depression by her treating physician. Although
the ALJ has a duty to develop the record before determining the claimant is not disabled, the
duty must be balanced against the fact that the claimant bears the burden of proof up through
step four of the evaluation process. See Ripley v. Chater, 67 F.3d 552, 557 (5th Cir. 1995);
Audler v. Astrue, 501 F.3d 446, 448 (5th Cir. 2007). The obligation to develop the record “is
triggered only when there is ambiguous evidence or when the record is inadequate to allow for
proper evaluation of the evidence.” Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001).
Here, the ALJ had more than adequate evidence in the record to make his determination.
The ALJ acknowledged that some medical records referenced depression, but the ALJ further
observed that Plaintiff did not exhibit any mental deficits during the hearing and reported having
friends, although she had difficulty making new ones. (R. 15). In addition to the report of Dr.
Schutte, the ALJ also considered a general examination performed by Dr. Dino Saracino on
August 3, 2007. (R. 258-63). Plaintiff did not report any mental problems and Dr. Saracino did
not observe any mental difficulties. (R. 259-61). Plaintiff reported that she spends her days

11

“cleaning, cooking, and caring for her mother,” and she preferred being away from her home
with others, rather than alone. (R. 272).
Accordingly, the Court holds that the ALJ properly considered the Plaintiff’s social
functioning limitation. Plaintiff’s claim fails on this ground.
b. Whether the ALJ Disregarded Severe Bladder Problems
Plaintiff also contends that the ALJ failed to consider the full extent of her bladder
problems in determining her RFC. (Doc. 16:3, 5). Plaintiff testified that she has to use the
restroom about twenty-four times a day and sometimes has accidents on the way to the restroom.
(R. 34). Plaintiff also testified that she has been experiencing bladder problems since 1996 and
was seeing a specialist but had to stop because she did not have the money to continue. (R. 41).
Plaintiff testified that she was being treated for her bladder problem by Dr. Guzman, who had
prescribed Detrol and other medications. (R. 35). Plaintiff, however, failed to present objective
evidence to show how the bladder problems prevented her from working.
When presented with a hypothetical that took the Plaintiff’s subjective claims fully into
account, the vocational expert testified that a person with an RFC which included a limitation
relating to bathroom breaks every hour, for five to ten minutes each, could perform neither
Plaintiff’s past relevant work nor any other job in the regional or national economy. (R. 48-49).
The Plaintiff argues that based on the vocational experts testimony, the ALJ should have
proceeded to step five of the sequential evaluation.
However, objective medical evidence, at least in part, must corroborate a claimant’s
subjective complaints. Wren v. Sullivan, 925 F.2d 123, 128-29 (5th Cir. 1991); 20 C.F.R. §

12

405.1508. A claimant’s own testimony is not the equivalent of medical evidence, and may not
take precedence over conflicting medical evidence. Harper v. Sullivan, 887 F.2d 93, 96 (5th Cir.
1989). Although the ALJ determined that the Plaintiff had severe bladder problems, the ALJ
determined that the Plaintiff’s subjective complaints as to the extent they incapacitated her were
not fully credible. (R. 12, 18).
The ALJ properly considered the record as a whole, including the available medical
evidence and the nature and extent of the plaintiff's daily activities, in determining that the
plaintiff's subjective complaints were not fully credible. Chater, 67 F.3d at 565 (considering a
plaintiff's daily activities as support for the ALJ's findings that the plaintiff was capable of
performing past relevant work). Here, the treating medical records did not reveal any social
functioning or bladder-related limitations. The ALJ discussed Plaintiff’s bladder problems and
observed that her medical records did not indicate any renal impairments due to chronic renal
disease that has lasted for at least 12 continuous months, and observed that there was no
evidence Plaintiff received chronic hemodialysis or peritoneal dialysis, kidney transplantation, or
persistent elevation of serum creatinine. (R. 15). The ALJ noted that there was also no medical
evidence that the Plaintiff suffered from incontinence. (R. 15).
The Court finds that the ALJ's credibility determination is supported by substantial
evidence, so it will not disturb those findings. Villa v. Sullivan, 895 F.2d 1019, 1024 (5th Cir.
1990) (“[A] factfinder's evaluation of the credibility of subjective complaints is entitled to
judicial deference if supported by substantial record evidence.”). The ALJ needed only to
include those limitations that he accepted as credible and that were supported by evidence.

13

Masterson v. Barnhart, 309 F.3d 267, 273 (5th Cir. 2002); see also Hoelck v. Astrue, 261 Fed.
Appx. at 686. Because the ALJ determined the Plaintiff’s bladder complaints were not as severe
as the Plaintiff maintained, and that her condition did not prevent her from doing her past
relevant work, the ALJ did not have to proceed to step five of the process. Accordingly, the
Court finds that the ALJ did not err in assessing the plaintiff's credibility with respect to her
subjective bladder complaints.
This court is not permitted to reweigh the evidence, and although the ALJ did not discuss
every piece of potentially relevant evidence in each step of his analysis, this is not required. See
Falco v. Shalala, 27 F.3d 160, 163 (5th Cir. 1994). There is substantial evidence to support the
ALJ’s RFC assessment that neither Plaintiff’s bladder condition nor social functioning
limitations would have prevented her ability to perform her past work as a data entry clerk.
2. Incomplete Hypothetical Presented to Vocational Expert
Once the ALJ determines plaintiff's residual functional capacity, he may rely on
vocational expert testimony to reach conclusions about the specific requirements of a particular
occupation, including working conditions and the attributes and skills needed. 20 C.F.R. §
404.1566(d), (e); Villalpando v. Astrue, 320 F. Appx. 208, 211 (5th Cir. 2009). In her final
argument, Plaintiff states that the ALJ’s opinion was not supported by substantial evidence
because the testimony of the vocational expert relied upon by the ALJ was based on an
incomplete hypothetical. (Doc. 16:6-9). Specifically, Plaintiff claims that the hypothetical
question failed to account for Plaintiff’s moderate limitation in social functioning. (Doc. 16:8).
“Unless the hypothetical question posed to the vocational expert by the ALJ can be said to

14

incorporate reasonably all disabilities of the claimant recognized by the ALJ, and the claimant or
his representative is afforded the opportunity to correct deficiencies in the ALJ's question by
mentioning or suggesting to the vocational expert any purported defects in the hypothetical
questions. . .a determination of non-disability based on such a defective question cannot stand.”
Boyd v. Apfel, 239 F.3d 698, 707 (5th Cir. 2001) (quoting Bowling v. Shalala, 36 F.3d 431, 436
(5th Cir. 1994)).
The ALJ’s decision reflects that he relied on vocational testimony. (R. 18). The ALJ
posed a hypothetical to the vocational expert that accounted for Plaintiff's age, education, work
experience, physical limitations, and mental limitations. In response, the VE testified that such a
person could work a semi-skilled job performed at the sedentary exertional level as a data entry
clerk. (R. 18-19, 46-48).
For a hypothetical to be proper, it “need only incorporate the disabilities that the
administrative law judge recognizes.” Wise v. Barnhart, 101 F. Appx. 950, 951 (5th Cir. 2004)
(per curiam) (unpublished) (citing Bowling, 36 F.3d at 435; Morris v. Brown, 864 F.2d 333, 336
(5th Cir. 1988)). It is not the Court’s role to reweigh the evidence. As discussed above, there is
substantial evidence that the ALJ took the moderate social limitation into account when
determining Plaintiff’s RFC. The ALJ noted that Plaintiff did not exhibit any mental deficits
during the hearing, she admitted to having friends, and she enjoyed going to the movies. (R. 15,
272). Her treating records also did not demonstrate mental limitations that would affect her
ability to perform her past work as a data entry clerk.
Even assuming, arguendo, that the ALJ’s hypothetical was incomplete, Plaintiff has
waived the argument. When presented with an opportunity to cure the alleged deficiency in the

15

hypothetical, neither the Plaintiff nor her attorney at the hearing did so, thereby waiving her right
to object to this issue. See Quintanilla v. Astrue, 619 F.Supp.2d 306, 323 (S.D.Tex. 2008) (“An
applicant waives his right to challenge a hypothetical on review if he does not address its
deficiencies at the hearing.”) (citing Wise v. Barnhart, 101 F. Appx. at 951).
In this case, the Plaintiff's attorney had the opportunity to ask the vocational expert to
take into account the moderate social limitation. Plaintiff's attorney’s question related only to
the potential impact of severe side effects caused by medication on Plaintiff’s employability.7
Thus, even assuming the ALJ's hypothetical failed to take into account all of Plaintiff’s
limitations, the failure is not reversible error.
CONCLUSION
After thoroughly reviewing the evidence presented to the ALJ and to the Appeals
Council and the record as a whole, this court holds that the ALJ's opinion was supported by
substantial evidence, and the decision of the Commissioner should be AFFIRMED. A separate
judgment in accordance with this Memorandum Opinion will issue this date.
SIGNED and ENTERED on March 11, 2013.

_____________________________________
ANNE T. BERTON
UNITED STATES MAGISTRATE JUDGE

The question: “If we add to the hypothetical that the individual has to go and take breaks to lie
down because of severe medicine side effects more than two times a day, that would do away
with all employment. Is that correct?” (R. 50).
7

16