Pelayo v. Astrue

Filing 19

MEMORANDUM OPINION AND ORDER. Signed by Judge Miguel A. Torres. (mg2)

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

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OLGA PELAYO,

§

9:

57

flLIi

§

Plaintiff,

§

§

NO. EP-12-CV-440-MAT

§

V.

§

CAROLYN W. COLVJN,
ACTiNG COMMISSIONER OF THE
SOCIAL SECURITY ADMiNISTRATION,'

§
§
§
§

Defendant.

§

MEMORANDUM OPINION AND ORDER
Plaintiff appeals
This is a civil action seeking judicial review of an administrative decision.
("Commissioner")
from the decision of the Commissioner of the Social Security Administration
denying her claim for Disability Insurance Benefits ("DIB") under Title II of the

Jurisdiction is predicated upon 42 U.S.C.

§

Social Security Act.

405(g). Both parties having consented to trial on the

to this Court for trial and
merits before a United States Magistrate Judge, the case was transferred
entry ofjudgment pursuant to 28 U.S.C.

Western District of Texas.

§

636(c) and Appendix C to the Local Court Rules of the

For the reasons set forth below, the Commissioner's decision is

AFFIRMED.
I. PROCEDURAL HISTORY

alleged disability
On October 29, 2009, Plaintiff filed an application for DIB in which she

blood pressure; and,
beginning August 3, 2008 due to shoulder, wrists, and back injuries; high

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

arthritis. (R. 10, 137, 141).2 Plaintiff was 47 years old on the alleged disability onset date. (R. 15,
137). She has a high school education (GED) and has previous work experience as a meat trimmer.

(R. 15, 142, 147).

After her application was denied initially and upon reconsideration, Plaintiff requested a
she
hearing before an administrative law judge ("AU"). (R. 45-49, 53-58). On April 20, 2011,

issued a
appeared with her representative for a hearing. (R. 23-42). On May 31, 2011, the AU

available in
written decision denying benefits on the ground that Plaintiff is able to perform work
10-17). On August
significant numbers in the national economy; therefore, she is not disabled. (R.

making the
31, 2012, the Appeals Council denied Plaintiff's request for review, thereby

AU's

decision the Commissioner's final administrative decision. (R. 1-5).
II. ISSUES PRESENTED

the
Plaintiff presents two issues for review: (1) whether the AU erred by failing to develop

expert's response to a faulty
record; and, (2) whether the AU erred by relying on the vocational
hypothetical question.
III. DISCUSSION

A. Standard of Review

final
This Court's review is limited to a determination of whether the Commissioner's

whole and whether the
decision is supported by substantial evidence on the record as a
Myers
Commissioner applied the proper legal standards in evaluating the evidence.
F.3d 617, 619 (5th Cir. 2001) (citing Greenspan

v.

v.

Apfel, 238

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

[page
Reference to the record of administrative proceedings is designated by (R.
number(s)J).
2

2

Substantial evidence is more than a scintilla, but less than a preponderance, and is such relevant

evidence as a reasonable mind might accept to support a conclusion. Ripley v. Chater, 67 F.3d 552,
555 (5th Cir. 1995). A finding

of"no substantial evidence" will be made only where there

"conspicuous absence of credible choices" or "no contrary medical evidence." Abshire

v.

is a

Bowen,

848 F.2d 638, 640 (5th Cir. 1988).

In determining whether there is substantial evidence to support the findings of the

the evidence
Commissioner, the court must carefully examine the entire record, but may not reweigh

Haywood v. Sullivan,
or try the issues de novo. Newton v. Apfel, 209 F.3d 448, 452 (5th Cir. 2000);

ownjudgment "even if the
888 F.2d 1463, 1466 (5th Cir. 1989). The court may not substitute its
evidence is less
evidence preponderates against the [Commissioner's] decision" because substantial
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. Speliman

v.

Shalala,

1

F.3d 357,

standards and her findings are
360 (5th Cir. 1993). If the Commissioner applied the proper legal
Id.
supported by substantial evidence, they are conclusive and must be affirmed.

B. Evaluation Process and Burden of Proof

Disability is defined as the "inability to engage in substantial gainful activity
medically determinable physical or mental impairment which.

. .

by reason ofany

has lasted or can be expected to

last for a continuous period of not less than 12 months." 42 U.S.C.

§

423(d)(1)(A). Disability

claims are evaluated according to a five-step sequential process: (1) whether

the claimant is currently

medically determinable
engaged in substantial gainful activity; (2) whether the claimant has a severe

whether the claimant's
physical or mental impairment or combination of impairments; (3)

of an impairment listed in
impairment or combination of impairments meets or equals the severity

20 C.F.R. Part 404, Subpart P, Appendix 1; (4) whether the impairment or combination of

impairments prevents the claimant from performing past relevant work; and, (5) whether the
impairment or combination of impairments prevents the claimant from doing any other work. 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 analysis. Greenspan, 38 F.3d at 236.

The claimant bears the burden of proof on the first four steps of the sequential analysis.

Leggett v. Chater, 67 F.3d 558, 565 (5th Cir. 1995). Once this burden is met, the burden shifts to
the Commissioner to show that there is other substantial gainful employment available that the
claimant is capable of performing. Anderson v. Sullivan, 887 F.2d 630, 632 (5th Cir. 1989). The
Commissioner may meet this burden by the use of opinion testimony of vocational experts or by

use

of administrative guidelines in the form of regulations. Rivers v. Schweiker, 684 F.2d 1144, 1155
the
(5th Cir. 1982). If the Commissioner adequately points to potential alternative employment,

work.
burden then shifts back to the claimant to prove that she is unable to perform the alternative

C. The

AU's Decision
In her written decision, the AU determined as a threshold matter that Plaintiff met the

one,
insured status requirements of the Social Security Act through June 30, 2013. (R. 12). At step

onset date
the AU found Plaintiff has not engaged in substantial gainful activity since the alleged

of August 3, 2008. Id. At step two, the AU determined Plaintiffhas severe impairments consisting

of degenerative disc disease of the cervical and lumbar spines. ld. At step three, the AU determined
Plaintiff does not have an impairment or combination of impairments that meets or equals one
listed impairments in 20 C.F.R.

Part

404, Subpart P, Appendix 1. (R. 12-13).

4

of the

Before reaching step four, the AU assessed Plaintiff's residual functional capacity ("RFC")
and found she is able to perform light work3, except she can lift up to

8

pounds frequently and

15

pounds occasionally; must alternate sitting and standing approximately hourly; can only occasionally
climb and balance; can stoop only to sit; and can perform only occasional overhead reaching. (R.
13). In making this RFC assessment, the AU determined Plaintiff's allegations regarding the

intensity, persistence and limiting effects of her symptoms were not entirely credible. Id.

At step four, the AU found that Plaintiff is unable to perform any of her past relevant work.
(R. 15). At step five, the AU found, considering Plaintiff's age, education, work experience, and

RFC, that there are jobs existing in significant numbers in the national economy that Plaintiff can
perform. (R. 16). Thus, the AU concluded at step five that Plaintiff is not disabled. (R. 16-17).
D. Analysis of Plaintiff's Claim
1. AU

Properly Developed the Record

Plaintiff contends the AU failed in his duty to develop the record to determine whether
Plaintiff's combination of complaints limited her ability to engage in gainful employment.
Specifically, Plaintiff argues the AU failed to address Plaintiff's impairments of "depression,
headaches4,

lumbar spine complications, polyarthralgias and fibromyalgia syndrome, sleep apnea."

Plaintiff further contends the AU should have recontacted Plaintiff's treating doctors with regard

Light work is defined in the regulations as lifting no more than 20 pounds at a time with
frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted
may be very little, ajob is in this category if it requires a good deal of walking or standing, or
when it involves sitting most of the time with some pushing and pulling of arm or leg controls.
20 C.F.R. § 404.1567(b).

Plaintiff's brief does not address any evidence of functional limitations related to
headaches that the AU should have considered.
5

to her depression and should have ordered a consultative psychiatric examination. And, finally,

Plaintiff asserts the AU improperly discredited the opinion ofher treating physician, Dr. Zolfoghary.
RFC is defined as the most an individual can still do despite her limitations. 20 C.F.R.

§

404.1545; Social Security Ruling ("SSR") 96-8p5. The responsibility to determine the claimant's
Ripley, 67 F.3d at 557. In making this determination, the AU must

RFC belongs to the AL

consider all the record evidence and determine Plaintiff's abilities despite her physical and mental
limitations. 20 C.F.R.

§

404.1545. The AU must consider the limiting effects of Plaintiff's

404.1529,
impairments, even those that are non-severe, and any related symptoms. See 20 C.F.R. §
s discretion.
404.1545; SSR 96-8p. The relative weight to be given to the evidence is within the AU'

Johnson v. Bowen, 864
See Chambliss v. Massanari, 269 F.3d 520, 523 n.1 (5th Cir. 2001) (citing
in the RFC that
F.2d 340, 347 (5th Cir. 1988)). The AU is not required to incorporate limitations
she did not find to be supported in the record. See Morris

v.

Bowen, 864 F.2d 333, 336 (5th Cir.

1988).

Plaintiff bears the burden to establish disability by providing or identifying medical and
evidence of her impairments. See 42 U.S.C.

§

423(d)(5)(A); 20 C.F.R.

§

other

404.15 12(c); see Cookv.

to prove the
Heckler, 750 F.2d 391, 393 (5th Cir. 1985). There is no burden on the Commissioner
absence of a claimant's alleged impairment. See Wren

v.

Sullivan, 925 F.2d 123, 128 (5th Cir.

1991). It is clear that the claimant "must prove the existence of an impairment."

Randall v. Astrue,

brief, the AU
570 F.3d 651, 657-58 (5th Cir. 2009). Further, as pointed out in the Commissioner's

the diagnoses, in the
considers the functional consequences of the claimant's impairments, not

Claims,
SSR 96-8p, Titles ii and XVJ: Assessing Residual Functional Capacity in Initial
l996 WL 374184 (July 2, 1996).

disability analysis.

See Hames

v.

Heckler,

707 F.2d 162, 165 (5th Cir. 1983).

Plaintiff alleges the AU limited her analysis to Plaintiffs impairment of degenerative disc
disease of the cervical and lumbar spines, and failed to consider her "lumbar spine complications."

Plaintiff does not, however, identify the alleged "lumbar spine complications." With regard to her
neck and back impairments, the AU correctly observed the following. Although Plaintiff alleged
chronic, severe back and neck pain, objective findings on x-ray and MRI studies indicated that her

condition had improved significantly since her injury in July

2008.6 (R. 14). Following conservative

treatment with physical therapy and pain medications, physical examination on October 26, 2009,
spines.
revealed normal range of motion in both shoulders, and in the cervical and thoracolumbar

2010, state that
Id. Treatment notes from her physician, K. Zolfoghary, M.D., dated January 26,

blades and to
Plaintiff complained of severe cervical pain with pain radiating under the shoulder
she had a
various body parts. (R. 486). Dr. Zolfoghary noted that, although an MRI showed

findings of the
herniated disc in her cervical spine in 2008, a repeat MRI dated showed normal

her lumbar spine
cervical spine. Id. Additionally, he noted there was evidence of a herniated disc in
He strongly suggested
in 2008, however, a repeat MRI in 2009 revealed a normal lumbar spine. Id.

complaints of pain
she continue with conservative and symptomatic therapy due to her continued
despite MRI findings that showed no evidence of disc herniation. Id.
2010 showed
As noted by the AU, a CT scan of the cervical spine performed on January 29,

negative CT
only very early degenerative changes of the mid-cervical spine, but "[o]therwise,
on September 22, 2010
examination of the cervical spine." (R. 14, 494). An MRI performed

motion injury
It appears from the record that Plaintiff suffered an on-the-job repetitive
at work on July 29,
to her shoulders on April 19, 2005. (R. 29, 380). She injured her lower back
2008. (R. 375, 380, 491, 652).
6

7

revealed disc dessication in the lower lumbar spine, but no disc bulges or protrusions, and no central
canal or neuroforaminal narrowing. (R. 14, 725). The AU correctly concluded the most recent xray and Mifi studies were all within normal limits. (R. 15). There is no error shown in the analysis.

Plaintiff contends the AU failed to develop the record by recontacting her treating doctors
regarding her depression and by failing to order a consultative mental examination to determine
relies on
whether she retains the mental RFC to perform the j oh of assembler. In support, Plaintiff

thinking and
her testimony that depression affects her ability to work because she has problems
also notes she
remembering, wants to avoid people, and feels like she wants to cry. (R. 36). She

of the vocational
takes medication to control her depression. Plaintiff also cites to the testimony
expert, in response to questioning from Plaintiffs representative, that the job

of assembler requires

of the time. (R. 40).
the ability to focus and maintain persistence and pace 80 to 90 per cent
that her decision
The AU has a basic obligation to develop a full and fair record to ensure

(5th Cir. 1984). Whether to order
is based on sufficient facts. Kane v. Heckler, 731 F.2d 1216, 1219
a consultative examination is within the AU's discretion. Anderson

v.

Sullivan, 887 F.2d at 634.

to enable the AU to
An examination at government expense is not required unless it is necessary
develop the record unless the
make a decision. Id. A court will not reverse for the AU's failure to
36 F.3d 431, 437 (5th
claimant can establish prejudice as a result of the failure. Bowling v. Shalala,

mental examination
Cir. 1994). Plaintiff can establish prejudice by showing that a consultative
"could and would have adduced evidence that might have altered the result."

Brock v. Chater, 84

F.3d 726, 728 (5th Cir. 1996) (citing Kane, 731 F.2d at 1220).
McDanald7, M.D.,
The record shows Plaintiff was prescribed Cymbalta by Eugene Chester

"

This unusual last name spelling appears to be correct. (R. 700-722).

a rheumatologist, on April 26, 2010, as part of the treatment plan for fibromyalgia syndrome (R. 35,

715,718). A review of these records shows that, although Dr. MeDanald noted Plaintiff's depressed
his
mood at her first visit on April 12, 2010, at no time during the course of treatment did
706, 701).
assessments include a diagnosis of depression. (R. 720, 721-722, 718, 715, 712, 709,

Plaintiffs
Further, the records show that within one month after adjusting the Cymbalta dosage,
to improve at
depression was reported to be improving on May 24, 2010, and reportedly continued

September 9, 2010,
all subsequent visits according to notes dated July 26, 2010, August 10, 2010,
and March 9,2011. (R. 711, 714, 708, 700).
a licensed
Importantly, it does not appear Plaintiff ever sought any treatment from

a family medicine doctor,
psychiatrist or psychologist. Treatment notes from Dr. Carlos Remirez8,

Plaintiff was oriented in all
dated from January 22, 2009 to March 22, 2011 consistently show
There is no mention of
spheres with normal mood and affect. (R. 667, 671, 676, 687, 692, 695).

depression complaints by Plaintiff during this period and no diagnosis

or treatment for depression.

Plaintiff did not allege depression as one of her impairments when she
the record
(R. 141). Plaintiff does not suggest or point to any evidence in

applied for benefits.

that suggests she requested

a consultative mental
her doctors be recontacted regarding her depression or that she requested
on April 5, 2011 in a letter
examination. Although Plaintiff alleged depression as an impairment

mention depression or
briefto the AU, the summarized evidence in support of her claims does not
refer to any diagnosis or treatment for depression. Plaintiff has not established
by showing that either recontacting her physicians or undergoing a

consultative mental examination

"could and would have adduced evidence that might have altered the
8

the requisite prejudice

result." Brock, 84 F.3d at 728

This unusual last name spelling also appears to be correct. (R. 665-696).

(citing Kane, 731 F.2d at 1220).

Regarding her sleep apnea, Plaintiff does not point to any objective medical evidence of
limitations related to this condition. She relies on her testimony, in response to the AU's question
about her typical day, that she sometimes gets up as late as noon because she has sleep apnea. She
testified that she takes medication for sleep apnea and also uses a machine, "but

I

still have

problems." (R. 33). She did not elaborate further on how this condition interferes with her ability
to work. The Court is not persuaded that Plaintiffs sleep apnea results in functional limitations

beyond those found by the AU.

Regarding her fibromyalgia, Plaintiff relies on her testimony at the administrative hearing

of acute pain from her neck down to her lower back, from her shoulders down to her arms, as well
question
as pain in her knees, toes, and joints. (R. 35). This testimony was in response to the AU
was
regarding pain due to fibromyalgia. Id. The record shows that on March 15, 2010, Plaintiff
earlier,
referred by her family medicine doctor for a rheumatology consult. (R. 682). As discussed

The assessment
on April 12, 2010, she was seen by rheumatologist Dr. McDanald. (R. 720-722).
and, insomnia,
was fibromyalgia, unspecified myalgia or myositis; joint pain in multiple sites;
unspecified.

without
(R. 721-722). Upon examination, Plaintiff had normal range of motion

tenderness in her cervical spine, shoulders, wrists, hands, hips, knees, ankles, and

feet. (R. 720). She

as follows:
had some tenderness in her lumbar spine. Id. Fibromyalgia tender points were noted

atlanto-occipital, trapezius, and

gluteal.9

Id.

SSR
Social Security Ruling l2-2p provides guidance on the evaluation of fibromyalgia.
25, 2012).
l2-2p, Titles IIandXVI: Evaluation of Fibromyalgia, 2012 WL 3104869 (July
it is helpful in
Although the effective date of this ruling is after the date of the AU's decision,
when fibromyalgia
understanding the evidence in this case. As part of the criteria for determining
tenderness on
is established as a medically determinable impairment, SSR i2-2p requires
10

Although during the course of her treatment, Dr. McDanald reported tender trigger points on
examination, at no time did he document

11

ofthe

18 trigger points

required to definitively establish

a diagnosis of fibromyalgia under SSR l2-2p. At follow up visits in May, July, August and
September 2010, her triggerpoints were reported to be improving and minimal. (R. 714, 712, 709,
706). Upon examination on March 9, 2011, Dr. McDanald opined Plaintiffs bilateral gluteal and

other trigger points were well controlled. (R. 701).
Based on consideration of Plaintiff's combination of impairments, the AU found Plaintiff
capable of work at the light exertional level with additional limitations of lifting no more than

8

pounds frequently and 15 pounds occasionally; must alternate sitting and standing approximately
hourly; can only occasionally climb and balance; can stoop only to sit; and, can perform only
occasional overhead

reaching.1°

(R. 13). In making this RFC assessment, the AU considered

Plaintiffs subjective complaints of pain and other symptoms. The AU determined Plaintiffs
allegations regarding the intensity, persistence, and limiting effects of her pain and other symptoms

were not entirely credible. Id. Assessment of credibility is the province of the AU, and her

physical examination in at least 11 of 18 sites located on each side of the body to include: occiput
(base of skull); low cervical spine (back and side of the neck); trapezius muscle (shoulder);
supraspinatus muscle (near the shoulder blade); second rib (top of the rib cage near the sternum
or breast bone); lateral epicondyle (outer aspect of the elbow); gluteal (top of the buttock);
*
greater trochanter (below the hip); and, inner aspect of the knee. Id. at
The AU's RFC assessment is supported by the overall evidence of record. She noted
of
a thorough functional capacity evaluation on April 14, 2009 indicated Plaintiff was capable
of up to 15 pounds and
performing sedentary to light work demands with occasional lifting
frequent lifting of up to 8 pounds. (R. 14, 588-602). Additionally, the AU properly considered
the assessments of state agency medical consultants who reviewed the record and found Plaintiff
with
could frequently lift/carry slightly less than 10 pounds and occasionally lift/carry 10 pounds,
in a normal work
only occasional overhead lifting, and could sit, stand and/or walk about 6 hours
10

day. (R. 15,453-460,519).
11

credibility determination is entitled to great deference. Greenspan, 38 F.3d at 237; Newton, 209 F.3d
at 459. Plaintiff has not shown her fibromyalgia reduced her RFC below that determined by the

AU.
Plaintiff is correct that the AU's written decision does not specifically mention or discuss
depression, sleep apnea, or fibromyalgia. But this alone is not reversible error. The AU is not
required to specifically discuss all the evidence that she considers. See, e.g., Falco

v.

S/ia/ala, 27

F.3d 160, 163-64 (5th Cir. 1994). Any procedural error made in the consideration of Plaintiff's

impairments requires remand only when a reviewing court concludes that the error is not harmless.
See Mays v. Bowen, 837 F.2d 1362, 1364 (5th Cir. 1988). "Procedural perfection in administrative

proceedings is not required. This court will not vacate a judgment unless the substantial rights of
a party have been affected." Id. In this case, the evidence cited by Plaintiff fails to establish the AU

improperly considered Plaintiff's impairments in assessing her RFC.
Finally, Plaintiff argues the AU "completely disregarded" the opinion of her treating
physician, K. Zolfoghary, M.D., who opined in progress notes dated February 9,2010, that Plaintiff

"remains totally disabled for any type of gainful employment." (ECF No. 17 at 8, citing R. 556).
In her opinion, the AU discussed the Medical Source Statement from Dr. Zolfoghary also dated

February 9, 2010, which stated Plaintiff was capable of lifting/carrying less than 10 pounds
frequently and occasionally standing/walking for less than two hours in an eight-hour workday, but
did not indicate how long Plaintiff was capable of sitting. (R. 14, 516-518). The AU correctly

noted that this opinion was "entitled to significant evidentiary weight if it is well supported by
objective clinical findings and is not contrary to the opinions of other treating and examining

physicians in the record." (R. 14).

12

"[O}rdinarily the opinions, diagnoses, and medical evidence of a treating physician who is

familiar with the claimant's injuries, treatments, and responses should be accorded considerable

weight in determining disability." Greenspan, 38 F.3d at 237. Medical opinions are given
deference, however, only if those opinions are shown to be more than conclusory and are supported
by clinical and laboratory findings. Scott v. Heckler, 770 F.2d 482,485 (5th Cir. 1985). When good

cause is shown, the AU may give less weight, little weight, or even no weight at all to any

physician's opinion. Greenspan, 38 F.3d at 237 (citing Scott v. Heckler, 770 F.2d 482, 485 (5th Cir.
1985)).

The AU properly gave less weight to the opinion of Plaintiff's treating physician. In her

opinion, the AU noted that Dr. Zolfoghary's opinion was not supported by objective signs and
stated
findings and was inconsistent with his own treatment notes and records. Specifically, the AU
that while Dr. Zolfoghary noted Plaintiff had significant restrictions in standing, walking, and lifting
on
and carrying, his treatment and progress notes did not indicate he had placed any limitations
14Plaintiff's activities and did not mention any need to lie down and rest several times daily. (R.
15). As she is permitted to do, the AU discounted the opinion

of Dr. Zolfoghary because it was

inconsistent with other treatment records and not substantiated by objective medical evidence.

Greenspan, 38 F.3d at 237; see also 20 C.F.R.

§

404.1527(c)(2) (giving "controlling weight" to a

laboratory
treating physician's opinion only if "well-supported by medically acceptable clinical and

the record).
diagnostic techniques and is not inconsistent with the other substantial evidence" in
There is no error shown on this ground.

the AU
The objective medical evidence does not support Plaintiff's contention that
289,
improperly consider her impairments in assessing her RFC. See Anthony v. Sullivan, 954 F.2d

13

295 (5th Cir. 1992) (subjective complaints unsubstantiated by medical findings need not be credited

over conflicting medical evidence). Simply stated, the evidence cited by Plaintiff does not support

the need for further limitations in her RFC beyond those assessed by the AU.
2. No Error in the

AU's Reliance on the Testimony of the Vocational Expert

Plaintiff claims the AU erred by relying on the testimony of the vocational expert ("yE")
in response to a faulty hypothetical question. According to Plaintiff, the

AU's question failed to

incorporate Plaintiff's complaints of pain and medication side effects and her symptoms of
depression, headaches, sleep apnea, and fibromyalgia.
The AU need only incorporate into the hypothetical question those limitations that are

"supported by the evidence and recognized by the AU." Masterson v. Barnhart, 309 F.3d 267, 273
that
(5th Cir. 2002). The AU is not required to include in the hypothetical question any limitations
she did not find to be supported in the record. Id. Nor is the AU bound by VE testimony based on

evidentiary assumptions that the AU ultimately rejects. Owens v. Heckler, 770 F.2d 1276, 1282(5th
Cir. 1985).

At the hearing, the AU asked the VE to assume a person of the same age, education and

work history as the Plaintiff who can perform the requirements of light work, but can only lift

8

pounds frequently and 15 pounds occasionally; must alternate between sitting and standing
approximately hourly; can stoop only to sit; and, can only occasionally perform overhead reaching.

that such
(R. 39). The AU asked the VE if there were jobs in the and regional and national economy

limitation
a hypothetical person could perform. Id. In response, the VE testified that the additional
be
in lifting would reduce the number ofjobs available, however, such a hypothetical person would

exertional
able to perform the job of assembler which is classified as unskilled work at the light

14

level.

Plaintiff's representative was afforded an opportunity to cross-examine the yE. The
representative asked the VE if the same hypothetical person with the additional limitation of ability
to sit no more than two hours in a work day would be able to perform the job of assembler. (R. 39-

40). The VE testified that, even with a two-hour sitting limitation, such a hypothetical person would
be able to perform thejob of assembler at the light exertional level. (R. 40). The representative then

added the additional limitation of having to take unscheduled breaks, and asked the VE if that
additional limitation would eliminate the light unskilled assembler job, and the VE testified that it
would because unscheduled breaks are not allowed in gainful employment.

Id. Finally, the

representative asked the VE whether the light unskilled assembler job could be performed if the
hypothetical individual's ability to maintain concentration, persistence, and pace was "affected one

third of the day." Id. The VE opined that such a mental limitation would eliminate that job. Id. As
the AU did not find the need to take unscheduled breaks or the limitations in concentration,
persistence, and pace to be supported in the record, she was not bound by this testimony.

Owens,

770 F.2d at 1282.
As discussed in the previous section, the AU properly considered all of Plaintiff's medically

determinable impairments in determining Plaintiff's RFC. Her hypothetical question to the VE

included all the limitations supported by the evidence, and Plaintiff's representative had an

opportunity to correct any perceived defects in the hypothetical question. Therefore, the yE's
testimony in response to the

AU's step five decision.

AU's hypothetical provided substantial evidence in support of the

See Bowling,

36 F.3d at 436. As substantial evidence supports the

15

AU's

decision, it must be affirmed.
CONCLUSION
It is therefore ORDERED that the decision of the Commissioner be, and it is hereby,

AFFIRMED.
SIGNED and ENTERED this

day of March, 2016.

IIGUEL A. TORRES
UNITED STATES MAGISTRATE JUDGE

16