Delgadillo v. Astrue

Filing 26

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

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

MARIA DELGADILLO,
Plaintiff,
v.
CAROLYN W. COLVIN,
ACTING COMMISSIONER OF SOCIAL
SECURITYADMINISTRATION,1
Defendant.

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NO. EP-12-CV-00264-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 Acting Commissioner of the Social Security Administration
(“Commissioner”), denying her claims for Disability Insurance Benefits (“DIB”) under Title II
of the Social Security Act and Supplemental Security Income (“SSI”) under Title XVI 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. For the reasons set forth
below, the Court AFFIRMS the final decision of the Commissioner.
I. PROCEDURAL HISTORY
Plaintiff Maria Delgadillo filed her applications for DIB and SSI on May 21, 2010,
alleging disability since December 1, 2008, later amending her onset date to February 6, 2010.
Carolyn W. Colvin became Acting Commissioner of the Social Security Administration on
February 14, 2013. Pursuant to Rule 25(d) 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.

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(R. 50, 135, 140).2 Plaintiff’s application was initially denied on August 5, 2010, and then again
denied upon reconsideration on November 1, 2010. (R. 59, 67). Plaintiff requested and was
granted a hearing before an Administrative Law Judge (“ALJ”) and a video hearing was held on
July 26, 2011, at which Plaintiff and a vocational expert testified. (R. 25-52).
On August 25, 2011, the ALJ issued a decision finding that Plaintiff had the following
severe impairments: diabetes mellitus, obesity, bilateral diabetic retinopathy, status post
panretinal photocoagulation, and status post vitreous hemorrhage with neovascular glaucoma
and loss of vision in the right eye. (R. 12). The ALJ assessed Plaintiff as having the residual
functional capacity to do light work with the following limitations:
[S]he cannot do work requiring a normal field of vision or normal depth
perception. The range of vision in the good eye is mainly limited by the nose.
Otherwise, she can do work requiring normal near or far vision with the one good
eye. She cannot be exposed to hazards such as unprotected heights, moving
mechanical parts, and cannot operate motorized vehicles.
(R. 13). Based on this residual functional capacity and vocational expert testimony, the ALJ
found that Plaintiff retained the ability to perform her past relevant work as a sales clerk, cake
decorator, inspector/sorter, and waitress, so she was not disabled. (R. 18-20). In the alternative,
the ALJ found that Plaintiff was also not disabled because, based on her age, education, work
experience, residual functional capacity, and the vocational expert testimony, Plaintiff could
perform other work that exists in significant numbers in the national economy, specifically as a
bench worker, greeter, teacher’s aide, or optical assembler. (R. 19-20). Plaintiff’s request for
review was denied by the Appeals Council on May 8, 2012. (R. 1-6).

Reference to court documents filed in this case is designated by “(Doc. [docket entry
number(s)]:[page number(s)]).” Reference to the record of the administrative proceedings is
designated by “(R. [page number(s)]).”

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Plaintiff filed her complaint on July 9, 2012, seeking review of the ALJ’s decision. (Doc.
5). The Commissioner filed her answer on September 25, 2012. (Doc. 18). That same day, a
transcript of the administrative proceedings was filed. (Doc. 20). On October 30, 2012, Plaintiff
filed her brief in support of reversing the Commissioner's decision and remanding for an award
of benefits or, alternatively, for additional administrative proceedings. (Doc. 23). On November
29, 2012, the Commissioner filed her response in support of the ALJ’s decision. (Doc. 24). The
case was then reassigned to this Court on December 6, 2012. (Doc. 25).
II. FACTUAL BACKGROUND
Plaintiff was born on February 6, 1960, making her fifty-one years old at the time of the
ALJ’s decision. (R. 30). She graduated from high school and can speak, read, and write English.
(R. 30, 151). She has previous work experience as a waitress, cook, sales clerk in retail, sewing
machine operator, cake decorator, caretaker, and inspector/sorter. (R. 45, 153, 161, 193). Her
longest held job was as a sewing machine operator. (R. 153, 161). She reported that she can no
longer work due to diabetes, glaucoma, and joint and muscle pain. (R. 152). She also testified
that she suffered from pain throughout her body and experienced swelling of her feet. (R. 32).
Plaintiff reported not being able to grip anything and having poor vision. (R. 32, 35-37).
Plaintiff estimated that she could only walk one block before running out of breath and needing
to sit down and rest for about five minutes. (R. 40-41). She also testified that she could only
stand for five minutes at a time and lift no more than eight pounds. (R. 41-42). Plaintiff
reported that she did her own grocery shopping once a week and left the house twice a week. (R.
172). She also reported that she could no longer drive herself and needed assistance dressing
and showering. (R. 180). Plaintiff testified that she used a cane prescribed to her by her primary

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doctor and frequently took naps throughout the day.3 (R. 34, 43-44). Plaintiff reported taking a
number of medications to manage her diabetes, cholesterol, pain, and glaucoma. (R. 179, 188,
192).

Plaintiff also complained of side effects brought upon by her medication, including

dizziness, nausea, and disorientation. (R. 43).
III. ISSUES
Plaintiff presents the following issues for review:
1. Whether the ALJ committed error by omitting a sit/stand option when determining
Plaintiff’s residual functional capacity. (Doc. 23:4).
2.

Whether the ALJ’s residual functional capacity determination was supported by

substantial evidence when it failed to account for Plaintiff’s use of a walking cane. (Doc. 23:67).
IV. 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

Juanita J. Capouch, the individual identified by Plaintiff as her primary doctor, is actually a
nurse practitioner, and not a physician. (R. 399).
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credible choices” or “no contrary medical evidence.” Johnson v. Bowen, 864 F.2d 340, 343–344
(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) (citing Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir.1990)).
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
decision and remand the case for further proceedings. Murkeldove v. Astrue, 635 F.3d 784, 792
(5th Cir. 2011).

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B.

Evaluation Process
“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 findings
according to a sequential five-step evaluation. 20 C.F.R. § 404.1520; Id. § 416.920. 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(a)(4)(i); Id. § 416.920(a)(4)(i). “Substantial
gainful activity” means the performance of work activity involving significant physical or
mental abilities for pay or profit.” Newton, 209 F.3d at 452-53 (citing 20 C.F.R. § 404.1572(a)(b)). An individual who is working and engaging in substantial gainful activity will not be found
disabled regardless of his medical condition or his age, education, and work experience. 20
C.F.R. § 404.1520(b); Id. § 416.920(b).
The ALJ then determines under the second step whether the claimant has a medically
determinable physical or mental impairment that is severe or a combination of impairments that
is severe. 20 C.F.R. § 404.1520(a)(4)(ii); Id. § 416.920(a)(4)(ii); Stone v. Heckler, 752 F.2d
1099, 1101 (5th Cir. 1985). “[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
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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 [the regulation] is
used.” Id. at 1106. An individual who does not have a “severe impairment” will not be found to
be disabled. 20 C.F.R. § 404.1520(c); Id. § 416.920(c).
Under the third step, an individual who has an impairment that meets or is medically
equal to the criteria of 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); Id. §

416.920(d). If the claimant does not qualify under the Listings, the evaluation proceeds forward.
20 C.F.R. § 404.1520(e); Id. § 416.920(e).
Before commencing the fourth step, the ALJ assesses the claimant’s residual functional
capacity, which is the claimant’s maximum work capability. Perez v. Barnhart, 415 F.3d 457,
461-62 (5th Cir. 2005); 20 C.F.R. § 404.1520(e); Id. § 416.920(e). The ALJ then proceeds to
step four and uses the claimant’s residual functional capacity to determine whether the
impairment prevents the claimant from performing his past relevant work.4

20 C.F.R. §

404.1520(f); Id. § 416.920(f). If an individual is capable of performing the work he has done in
the past, a finding of “not disabled” will be made. 20 C.F.R. § 404.1520(f); Id. § 416.920(f).
If an individual's impairment precludes him from performing his past relevant work, the
fifth and final step evaluates the claimant's ability to do other work given his residual capacities,
his age, education, and work experience. If an individual's impairment precludes him from
performing any other type of work, he will be found to be disabled. 20 C.F.R. § 404.1520(g); Id.
§ 416.920(g).
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. § 416.960(b)(1).

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An individual applying for benefits bears the initial burden of proving that he is disabled
for purposes of the Social Security Act. Selders v. Sullivan, 914 F.2d at 618 (5th Cir. 1990).;
Fraga v. Bowen, 810 F.2d 1296, 1301 (5th Cir. 1987). 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 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).
The Commissioner must demonstrate that other work exists in significant numbers in the
national economy that the claimant can do given the claimant’s residual functional capacity, age,
education, and work experience. Id. at 1153. If the Commissioner proves other work exists
which the claimant can perform, the claimant is given the chance to prove that he cannot, in fact,
perform that work. Anderson v. Sullivan, 887 F.2d at 632.
C.

The ALJ’s Decision
The ALJ issued a decision on August 25, 2011. At step one, the ALJ determined that

Plaintiff had not engaged in substantial gainful activity since February 6, 2010, the amended
alleged onset date.5 (R. 12). At step two, the ALJ determined that Plaintiff had the following
severe impairments: diabetes mellitus, obesity, bilateral diabetic retinopathy, status post
panretinal photocoagulation, and status post vitreous hemorrhage with neovascular glaucoma
and loss of vision in the right eye. (R. 12-13).

The Plaintiff initially alleged disability beginning December 1, 2008, but amended her alleged
onset date to February 6, 2010, to coincide with her 50th birthday.

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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 in 20 C.F.R. § 404.1520(d)
and § 416.920(d) under step three. (R. 13).
Next, the ALJ determined that Plaintiff has the residual functional capacity to perform
the full range of light work, with the following limitations: (i) she cannot perform work requiring
a normal field of vision or normal depth perception; (ii) her range of vision in her good eye is
mainly limited by the nose, otherwise she can do work requiring normal near and far vision with
the good eye; (iii) she cannot be exposed to hazards such as unprotected heights or moving
mechanical parts; and (iv) she cannot operate motorized vehicles. (R 13-18).
Based on the residual functional capacity finding and vocational expert testimony, the
ALJ concluded at step four that Plaintiff could perform her past relevant work as a waitress,
sales clerk, cake decorator, and inspector/sorter. (R. 18). In the alternative, the ALJ found that
based on Plaintiff’s age, education, work experience, residual functional capacity, and vocational
expert testimony, Plaintiff can perform other jobs that exist in significant numbers in the national
economy, specifically as a bench worker, greeter, teacher’s aide, or optical assembler. (R. 1920). Because the ALJ believed Plaintiff was capable of performing her past relevant work or
other work that exists in significant numbers in the national economy, the ALJ found that
Plaintiff was not disabled within the meaning of the Social Security Act. (R. 20-21).
V. ANALYSIS
Plaintiff contends that the ALJ’s residual functional capacity finding is not supported by
substantial evidence. In particular, Plaintiff alleges that the ALJ omitted a sit/stand option when
determining Plaintiff’s residual functional capacity. (Doc. 23:4). Plaintiff also argues that the
residual functional capacity determination was not supported by substantial evidence because it
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failed to reflect all of Plaintiff’s limitations. (Doc. 23:6-7). Specifically, Plaintiff alleges that
the ALJ failed to include limitations related to Plaintiff’s use of a walking cane. (Doc. 23:6-7).
A.

The ALJ’s Residual Functional Capacity Finding is Supported by Substantial
Evidence Despite Its Omission of a Sit/Stand Option
The ALJ determined that Plaintiff has the residual functional capacity to perform limited

light work.
Light work activity is defined as work, which involves lifting of no more
than 20 pounds occasionally, and up to 10 pounds frequently. The full
range of light work requires standing, and walking for up to six hours
during an eight-hour workday and sitting intermittently during the
remaining time. “Occasionally” means occurring from very little up to
one-third of the time, and would generally total no more than about two
hours of an eight-hour workday. “Frequently” means occurring from onethird to two-thirds of the time, and would generally range from about two
hours to approximately six hours total in an eight-hour workday.
20 C.F.R. § 404.1567; Id. § 416.967(b). The ALJ found Plaintiff could perform light work
except she cannot do work requiring a normal field of vision or normal depth perception or be
exposed to hazards such as unprotected heights, moving mechanical parts, or operate motorized
vehicles. (R. 13).
Plaintiff asserts that the ALJ’s failure to include a sit/stand option in the residual
functional capacity assessment is legal error that requires remand for further administrative
proceedings, or alternatively, a finding of disability. (Doc. 23:3-6). Plaintiff acknowledges that
no medical opinion stated a requirement for the option but Plaintiff contends that the medical
record in evidence and Plaintiff’s testimony support including the limitation. (Doc. 23:4-6).
The Commissioner responds that substantial evidence supports the ALJ’s residual
functional capacity determination.

(Doc. 24:4).

First, the Commissioner argues that the

objective medical evidence does not support the alleged functional limitation. (Doc. 24:5).
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Moreover, the Commissioner states that Plaintiff’s own statements support the ALJ’s
determination to not include a sit/stand option. (Doc. 24:6).
As a preliminary matter, the Court stresses that the relevant question for review is
whether the ALJ's decision is supported by substantial evidence, not whether the record contains
evidence to support a sit/stand option. See Navarro v. Colvin, No. A-12-CV-040-LY-AWA,
2013 WL 1704795, at *3 (W.D. Tex. Apr. 19, 2013) (citing Kinash v. Callahan, 129 F.3d 736,
738 (5th Cir. 1997)). 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, 209 F.3d at 452. Conflicts in the evidence are for the Commissioner and not
for this Court to resolve. Spellman, 1 F.3d at 360.
In support of her claim, Plaintiff’s brief focuses solely on the evidence that supports
including a sit/stand option in her residual functional capacity determination while ignoring the
evidence cited by the ALJ that does not support the option. Plaintiff points out that she reported
joint pain to various doctors. (R. 199, 202, 207). She also reported various muscle pain, back
pain, and leg pain. (R. 152, 169, 170, 177, 185). During a May 2009 physical examination,
Plaintiff complained of pain radiating to her back. (R. 237). A May 30, 2009, bone survey
revealed advanced degenerative disc disease at L4-L5 with disc space narrowing and spurring.
(R. 253). At the ALJ hearing, Plaintiff testified that she stopped working because she had been
feeling bad, her body hurt, things were falling from her hands, and she could not stand for very
long because her feet would swell. (R. 32). Plaintiff also stated that she experienced back pain
and needed a cane or had to lean against a wall after standing for no more than five minutes. (R.
40-41). Plaintiff also testified that she is five-feet-tall and two-hundred forty-four pounds and as

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a result of her weight and other conditions, she could walk only about a block before stopping to
take a break due to shortness of breath.6 (R. 37-38, 40).
Plaintiff states that she is required to show only that there is objective medical evidence
of an underlying impairment which could reasonably be expected to produce the pain or support
the symptoms alleged, and she does not have to produce objective evidence of the pain itself or
its severity. (Doc. 23:5) (citing 42 U.S.C. § 423(d)(5)(A)). However, the section of the statute
cited by the Plaintiff relates to the need for objective evidence to support a subjective complaint
of pain or other symptoms. See 42 U.S.C. § 423(d)(5)(A). Simply producing objective evidence
supporting the existence of an underlying impairment that could be reasonably expected to
produce the symptoms alleged does not alone establish the existence of an underlying
impairment.

The ALJ must still consider the entirety of the record when making his

determination, and decide what weight to accord the various medical reports. Johnson v. Bowen,
864 F.2d at 347.

This Court in turn must determine whether the ALJ’s determination is

supported by substantial evidence. Myers v. Apfel, 238 F.3d at 619.
It is clear from the ALJ’s opinion that she took into account all of Plaintiff’s medical
history and subjective complaints when making the residual functional capacity determination.
(R. 13-18). The ALJ noted that despite Plaintiff’s claim that she is very limited by joint pain and
back pain, she has not received treatment or been recorded to have significant need for such care.
A claimant's lack of need for medication or failure to seek treatment is a relevant factor
to consider in determining the severity of an alleged impairment and may be used in conjunction

According to her testimony, Plaintiff’s BMI (Body Mass Index) would be 47.6, qualifying her
as severely obese.
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with the medical reports to discount plaintiff's complaints of disabling pain or other limitations.
Anthony v. Sullivan, 954 F.2d 289, 295-296 (5th Cir. 1992); Griego v. Sullivan, 940 F.2d 942,
945 (5th Cir. 1991); Villa v. Sullivan, 895 F.2d 1019, 1024 (5th Cir. 1990). On May 27, 2009,
Dr. Murray V. Vann observed full strength in Plaintiff’s extremities without edema, and no
abnormalities of her musculoskeletal system. (R. 235). Dr. Nathan Hancock examined Plaintiff
on May 6, 2010, and noted no tenderness in Plaintiff back, normal strength in her extremities,
and a “steady gait” (no use or need for an assistive device is indicated). (R. 244, 248). Plaintiff
did not take that opportunity to report or complain about any pain that she might have been
experiencing in her back or body. (R. 390). On August 3, 2010, Dr. Leigh McCary reviewed
Plaintiff’s medical records and determined that the record was insufficient to determine the
extent of Plaintiff’s vision issues and the full range of motion of her joints. (R. 352). Dr. Mary
Jo Hernandez also reviewed Plaintiff’s records on October 26, 2010, and concluded that the
allegations as to the Plaintiff’s medically determinable impairments of glaucoma, diabetes
mellitus, and diabetic retinopathy are only partially supported by the evidence on record and that
the allegations are only partially credible. (R. 353). On August 24, 2010, when Plaintiff was
evaluated for gallstones, her physical examination revealed good peripheral pulses and no edema
of the lower extremity, with good range of motion and sensation. (R. 364-365). On April 5,
2011, Plaintiff was examined by Dr. B. Davis following gallbladder surgery, and Plaintiff
described herself as “doing well,” and “feel[ing] fine.” (R. 16, 359). Plaintiff also confessed to
not taking her pain pills. (R. 16, 359).
While an ALJ must take into account a claimant's subjective allegations of pain in
determining her residual functional capacity, the claimant must produce objective medical

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evidence of a condition that reasonably could be expected to produce the level of pain alleged.
Harper v. Sullivan, 887 F.2d 92, 96 (5th Cir. 1989). The mere existence of pain does not
automatically create grounds for disability, and subjective evidence of pain will not take
precedence over conflicting medical evidence.

Id.

The ALJ reviewed the evidence and

concluded that Plaintiff’s testimony concerning the severity of her back and body pain was not
credible to the extent that Plaintiff’s residual functional capacity determination required a
sit/stand option. (R. 18). Thus, the ALJ found the objective medical evidence more persuasive
than Plaintiff’s testimony at the hearing, which is “precisely the kind[] of determination[] that
the ALJ is best positioned to make” as the ALJ “enjoys the benefit of perceiving first-hand the
claimant at the hearing.” Falco v. Shalala, 27 F.3d 160, 164 (5th Cir. 1994).
In her opinion, the ALJ stated, and this Court’s review of the record confirmed, that no
physician placed any functional limitation on Plaintiff related to her back or her joints. (R. 1718). Citing to the regulations at 20 C.F.R. §§ 404.1529(c)(2) and 416.929(c)(2), the ALJ noted
that objective medical evidence is a useful indicator in making reasonable conclusions about the
intensity and persistence of an individual’s symptoms and the effects those symptoms may have
on the individual’s ability to function. The absence of findings such as reduced joint motion,
muscle spasm, sensory deficit, and motor disruption can detract from the credibility of a
claimant’s allegations about pain and other symptoms and their functional effects. See Vaughan
v. Shalala, 58 F.3d 129, 131 (5th Cir. 1995) (citation omitted) (the lack of physician-assessed
limitations substantially supports the ALJ’s decision). The ALJ cited to Plaintiff’s lack of these
findings in the medical records to support his functional findings. (R. 17). In fact, the ALJ
acknowledged that the Plaintiff’s obesity was severe and attributed some of her complaints of

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back and body aches/pain to it but concluded that they only precluded Plaintiff from performing
medium or heavier work. (R. 18).
The objective medical evidence provides substantial evidence supporting the ALJ’s
opinion, and refutes Plaintiff’s allegation that the ALJ committed error by failing to include a
sit/stand option for her. The ALJ was not required to submit the limitation to the vocational
expert in his hypothetical question because he determined it was unnecessary. See Scott v.
Shalala, 30 F.3d 33 (5th Cir. 1994) (the ALJ must submit a sit/stand limitation to a vocational
expert when he determines it is needed); see also Bowling v. Shalala, 36 F.3d 431, 436 (5th Cir.
1994) (a hypothetical submitted to the vocational expert is defective if it fails to incorporate
reasonably all disabilities of the claimant recognized by the ALJ).
After examining the record and the ALJ’s opinion, the Court finds substantial evidence
supports the ALJ’s residual functional capacity finding with respect to this claim.
B.

The Commissioner Did Not Err By Failing to Account for Plaintiff’s Use of a Cane
Plaintiff argues that her need to use a cane while walking should have been included in

the ALJ’s residual functional capacity determination. (Doc. 23:6). Failure to do so, she states, is
legal error. The Court disagrees and concludes that the ALJ properly excluded Plaintiff’s cane
use.
During the ALJ hearing, Plaintiff testified that the use of a cane was prescribed by her
“doctor,” Juanita Capouch, but there is no indication in Capouch’s report that the use of a cane
was prescribed nor is there any reference to the use of a cane.7 (R. 34). Plaintiff stated that she
As a nurse practitioner, Capouch is not considered an “acceptable” medical source under the
regulations. See SSR 06–03p; 20 C.F.R. § 404.1513(d); see also Griego v. Sullivan, 940 F.2d
942, 945 (5th Cir.1991) (recognizing that the regulations accord less weight to sources other than

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has to use a cane to maintain equilibrium and to prevent herself from falling. Plaintiff also
testified that she can only stand for about five minutes and has to “go to the wall or something”
for support, and she also experiences dizziness as a side effect of her medication. (R. 41, 43).
Plaintiff further testified that she cannot stand for very long because her feet swell and she
experiences intermittent back pain. (R. 32, 34). She also reported experiencing joint and muscle
pain, back pain and leg pain. (R. 152, 169, 170, 177, 185). In his written opinion, the ALJ
recognized that Plaintiff is obese and has advanced degenerative disc disease at L4-L5 with disc
space narrowing and spurring. (R. 253).
In response, the Commissioner states that there is no evidence in the record supporting
Plaintiff’s claim that she was ever prescribed or instructed to use a cane by a medical provider.
(Doc. 24:7). However, the regulations do not require that the claimant be prescribed the use of a
cane, only that she provide medical documentation establishing the need for the device. Social
Security Ruling 96–9p states in pertinent part:
Medically required hand-held assistive device: To find that a hand-held assistive
device is medically required, there must be medical documentation establishing
the need for a hand-held assistive device to aid in walking or standing, and
describing the circumstances for which it is needed (i.e., whether all the time,
periodically, or only in certain situations; distance and terrain; and any other
relevant information). The adjudicator must always consider the particular facts
of a case. For example, if a medically required hand-held assistive device is
needed only for prolonged ambulation, walking on uneven terrain, or ascending
or descending slopes, the unskilled sedentary occupational base will not
ordinarily be significantly eroded.
1996 WL 374185, at *7 (S.S.A. July 2, 1996). See also Coleman v. Astrue, No. 3:10-CV-1919BD, 2011 WL 6182338, at *3 (N.D. Tex. Dec. 13, 2011).

medical doctors).
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The Commissioner also contends that there is no objective medical evidence supporting
Plaintiff’s complaints. (Doc. 24: 7). In this case, Plaintiff’s testimony constitutes the majority
of the evidence in the record supporting the use of the cane. Subjective complaints must be
corroborated, at least in part, by objective evidence. See Houston v. Sullivan, 895 F.2d 1012,
1016 (5th Cir. 1989) (citing Harrell v. Bowen, 862 F.2d at 481). Plaintiff testified at the hearing
that her use of a cane had been prescribed to her but there was no objective medical evidence
supporting these claims.

The ALJ did find that Plaintiff’s obesity could affect Plaintiff’s

functional limitations, such as standing, walking and balancing, and that it could be contributing
to her complaints of back and body pains but not to the full extent alleged by the Plaintiff. (R.
18). The ALJ also found that Plaintiff had not shown motor, sensory, or reflex deficits, and no
physical examination supported Plaintiff’s claim of severe limitations related to lower extremity
swelling. (R. 17). At least one physician noted Plaintiff’s “steady gait” on May 6, 2010, and
none included any observations that Plaintiff used an assistive device. (R. 248).

In sum, the

ALJ recognized that Plaintiff suffered some limitations as a result of her conditions, but found
that her allegations are generally inconsistent with the objective medical evidence and are
credible only to the extent that they are consistent with the medical evidence of record. (R. 18).
The ALJ is responsible for assessing the credibility of testimony and his assessment is
entitled to considerable deference. Falco v. Shalala, 27 F.3d at 163-164; Newton v. Apfel, 209
F.3d at 459. The ALJ conducted a detailed evaluation of the medical evidence and provided an
evaluation of Plaintiff’s testimony. (R. 13-18). Furthermore, the regulations require objective
medical documentation apart from a claimant’s subjective complaints in order to support the use
of a cane. Because there was no medical documentation establishing claimant's need for a hand-

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held assistance device to aid in walking or standing, the Court finds substantial evidence
supports ALJ’s residual functional capacity finding with respect to this claim.
VI. CONCLUSION
The Court concludes that the ALJ’s decision is supported by substantial evidence. Based
on the foregoing, it is hereby ORDERED that the decision of the Commissioner is
AFFIRMED. A separate judgment in accordance with this Memorandum Opinion will issue
this date.
SIGNED and ENTERED on September 17, 2013.

____________________________________
ANNE T. BERTON
UNITED STATES MAGISTRATE JUDGE

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