Terrazas v. Colvin

Filing 15

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 13 Report and Recommendations and the case is hereby DISMISSED, Signed by Judge Kathleen Cardone. (mt)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
LUIS TERRAZAS,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of the Social
Security Administration,
Defendant.

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EP-14-CV-18-KC

ORDER
On this day, the Court considered Plaintiff Luis Terrazas’ (“Claimant”) Objections to
Magistrate Judge’s Report and Recommendation (“Objections”), ECF No. 14, in the abovecaptioned case (the “Case”). For the following reasons, the Objections are OVERRULED, and
the Report and Recommendation of the Magistrate Judge (the “R&R”), ECF No. 13, is hereby
ADOPTED.
I.

BACKGROUND
In January 2011, Claimant filed a Title II application for a period of disability and
disability insurance benefits and a Title XVI application for supplemental security income. R. at
86-96. In both applications, Claimant alleged disability beginning on December 1, 2007. Id. at
86, 91. Claimant’s grounds for disability stemmed from allegations of diabetes, lower back pain,
and cholesterol. Id. at 265, 269, 273. The Social Security Administration denied both of
Claimant’s applications initially and on reconsideration. Id. at 41-54. Claimant then filed a

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written request for a hearing before an administrative law judge (“ALJ”) on July 5, 2011. Id at
63.
On May 16, 2012, Claimant appeared unrepresented by counsel before an ALJ for a
hearing on his disability applications. Id. at 20-36. Claimant stated that he suffered from
diabetes and severe chronic back pain. Id. at 22-23. Further, Claimant alleged that
approximately one month before the hearing he had sought medical care at the William
Beaumont and Veterans Administration (“VA”) hospitals for depression, id., which he described
as “just think[ing] about . . . not being able to work like [he] want[s] to and make money so [he]
could support [his] children first and foremost and pay for some bills and some of the food that
[he] eat[s].” Id. at 31. The ALJ acknowledged that medical records relating to Claimant’s
treatment for depression had not been presented, but informed Claimant that she would collect
and review those records before determining his disability claim. Id. at 22, 34-35. Claimant
additionally testified that he was taking tramadol for his pain, insulin for his diabetes, and a
medication for his depression that he could not name. Id. at 26-27. This medication caused
Claimant no side effects other than “sedation.” Id. at 30.
Claimant stated that his last place of employment was his family’s fast-food restaurant, at
which he worked as general manager. Id. at 24, 26. Claimant further testified that he performs
“odd jobs” for pay, including babysitting nieces and nephews, driving his parents as needed, and
doing housework. Id. at 27-28. Further, Claimant estimated he could lift fifteen pounds without
straining, could walk two to three blocks before needing to rest, and had no trouble socializing
with others or concentrating when he drove or watched television. Id. at 28, 31.
After hearing Claimant’s testimony, the ALJ proposed three hypothetical questions to a
vocational expert (the “Vocational Expert”). Id. at 34. Hypothetical one asked the Vocational
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Expert whether “an individual at the medium level who would need to avoid concentrated
exposure to unprotected heights” would be able to work as a fast-food worker or heavy
equipment operator. Id. Hypothetical two asked the same question of the Vocational Expert, but
“assum[ed] an individual at the light level who would need to avoid concentrated exposure to
unprotected heights.” Id. For both hypothetical one and two, the Vocational Expert concluded
that such an individual could participate in past-employment as a fast-food worker. Id.
Hypothetical three involved the same conditions as hypothetical two, but with the added
condition that the individual would need unscheduled breaks throughout the workday due to a
combination of medical conditions. Id. The Vocational Expert stated that such a condition
would not be allowed in any competitive work environment. Id.
On August 16, 2012, the ALJ denied Claimant benefits. Id. at 8-14. In doing so, the ALJ
found that Claimant’s depression “did not cause more than minimal limitation in the
[C]laimant’s ability to perform basic mental work activities and [is] therefore non-severe.” Id. at
10. There is no indication in the record that the ALJ obtained Claimant’s medical records
relating to his treatment for depression prior to issuing the decision. The Social Security
Administration’s Appeals Council denied Claimant’s request for review of the ALJ’s decision on
November 13, 2013. Id. at 1-3.
Claimant initiated this action by filing his “Complaint to Review Decision of
Commissioner of the Social Security” (“Complaint”), ECF No. 1, on January 16, 2014. By the
Complaint, Claimant sought a reversal of the administrative decision denying his claim for
disability benefits. Compl. 4. The Commissioner of the Social Security Administration (the
“Commissioner”) filed her Answer, ECF No. 5, on March 20, 2014. After both parties filed
supplemental briefs in support of their respective positions, the Honorable Robert F. Castaneda
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(the “Magistrate Judge”) issued his R&R on February 5, 2015, recommending that the Court
affirm the Commissioner’s denial of benefits. Claimant then timely filed his Objections on
February 17, 2015. The Commissioner filed no response to the Objections.
II.

DISCUSSION
A.

Standard

A district court “shall make a de novo determination of those portions of [a magistrate
judge’s] report or specified proposed findings or recommendations to which objection is made.”
28 U.S.C. § 636(b)(1); see also Fed. R. Civ. P. 72(b)(3) (“The district judge must determine de
novo any part of the magistrate judge’s disposition that has been properly objected to.”); Warren
v. Miles, 230 F.3d 688, 694 (5th Cir. 2000).
“In the Fifth Circuit, appellate review [of a social security denial] is limited to (1)
whether the Commissioner applied the proper legal standard; and (2) whether the
Commissioner’s decision is supported by substantial evidence.” Waters v. Barnhart, 276 F.3d
716, 718 (5th Cir. 2002) (citing Estate of Morris v. Shalala, 207 F.3d 744, 745 (5th Cir. 2000)).
“Substantial evidence is more than a scintilla, less than a preponderance, and is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (citing
Richardson v. Perales, 402 U.S. 389, 401 (1971)). “The [C]ourt may not reweigh the evidence
or try the issues de novo or substitute its judgment for that of the [Commissioner].” Kane v.
Heckler, 731 F.2d 1216, 1219 (5th Cir. 1984).
B.

Analysis

Claimant alleges five errors on the part of the Magistrate Judge. First, Claimant believes
that the Magistrate Judge “erred in his findings that the ALJ properly considered all of
[Claimant’s] impairments throughout the evaluation process.” Objections 1. Second, Claimant
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alleges that “the [M]agistrate [Judge] erred in finding that the ALJ’s failure to develop the
medical record did not prejudice [Claimant].” Id. at 3. Third, Claimant argues that “the
[M]agistrate [Judge] erred in finding that the ALJ’s failure to order a psychiatric examination did
not prejudice [Claimant].” Id. at 4. Fourth, Claimant asserts that “the [M]agistrate [Judge] erred
in finding that the ALJ was not required to incorporate [certain] non-exertional limitations in the
hypothetical[s] presented to the [V]ocational [E]xpert.” Id. at 6. Fifth, Claimant alleges that he
was prejudiced by the ALJ’s failure to allow him the opportunity to question the Vocational
Expert. Id. at 8. The Court reviews each objection de novo in turn. See 28 U.S.C. § 636(b)(1);
Fed. R. Civ. P. 72(b)(3); Warren, 230 F.3d at 694.
“A sequential [five-step] process is used to determine whether a claimant is disabled and,
therefore, entitled to benefits.” Anderson v. Sullivan, 887 F.2d 630, 632 (5th Cir. 1989); see also
20 C.F.R. § 404.1520. “‘A finding that a claimant is disabled or is not disabled at any point in
the five-step review is conclusive and terminates the analysis.’” Greenspan v. Shalala, 38 F.3d
232, 236 (5th Cir. 1994) (quoting Lovelace v. Bowen, 813 F.2d 55, 58 (5th Cir. 1987)); see also
20 C.F.R. § 404.1520(a)(4). “To be entitled to benefits, an applicant bears the initial burden of
showing that he is disabled.” Greenspan, 38 F.3d at 236 (citing Abshire v. Bowen, 848 F.2d 638,
640 (5th Cir. 1988)). “Under the regulations, this means that the claimant bears the burden of
proof on the first four steps of the sequential analysis.” Id. (citing Bowen v. Yuckert, 484 U.S.
137, 146 n.5 (1987)). “Once this initial burden is satisfied, the [Commissioner] bears the burden
of establishing that the claimant is capable of performing work in the national economy.” Id. “If
the [Commissioner] adequately points to potential alternative employment . . . the burden then
shifts back to the claimant to prove that he is unable to perform the alternate work.” Mays v.
Bowen, 837 F.2d 1362, 1364 (5th Cir. 1988).
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The first step of the disability analysis involves consideration of the claimant’s work
activity. 20 C.F.R. § 404.1520(a)(4)(i). If the claimant is engaging in “substantial gainful
activity,” there is no disability. Id. The second step considers the “medical severity” of the
claimant’s impairments. Id. § 404.1520(a)(4)(ii). “If [the claimant] do[es] not have a severe
medically determinable physical or mental impairment that meets the duration requirement in [20
C.F.R.] § 404.1509, or a combination of impairments that is severe and meets the duration
requirement,” the claimant is not disabled. Id. The third step examines the medical severity of
the claimant’s impairment. Id. § 404.1520(a)(4)(iii). “In the third step, the medical evidence of
the claimant’s impairment(s) is compared to a list of impairments presumed severe enough to
preclude any gainful activity.” Myers v. Apfel, 238 F.3d 617, 619 (5th Cir. 2001) (citing Loza v.
Apfel, 219 F.3d 378, 390 (5th Cir. 2000)). “If the claimant’s impairment matches or is equal to
one of the listed impairments, he qualifies for benefits without further inquiry.” Id. The fourth
step considers an assessment of the claimant’s residual functional capacity and past relevant
work. 20 C.F.R. § 404.1520(a)(4)(iv). “If [the claimant] can still do [his] past relevant work, . . .
[the claimant] [is] not disabled.” Id. The fifth and final step considers an assessment of the
claimant’s residual functional capacity and the claimant’s age, education, and work experience to
see if the claimant can make an adjustment to other work. Id. § 404.1520(a)(4)(v). If the
claimant can make an adjustment to other work there is no disability. Id. If the claimant cannot
make an adjustment to other work there is a disability. Id.
1.

The ALJ sufficiently considered the combined effects of Claimant’s
physical and mental impairments.

Claimant argues that the ALJ erred by failing to consider the combined effect of
Claimant’s impairments. Objections 1-2. According to the Claimant, “[a]lthough the ALJ stated
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that [s]he had ‘carefully considered the entire record in this case,’ [her] ‘evaluation of the
evidence’ addresses each impairment separately and does not specifically discuss the interaction
or cumulation [sic] of all of the [C]laimant’s medical problems.” Id. at 3.
“The well-settled rule in this Circuit is that in making a determination as to disability, the
ALJ must analyze both the ‘disabling effect of each of the claimant’s ailments’ and the
‘combined effect of all of these impairments.’” Loza, 219 F.3d at 399 (citing Fraga v. Bowen,
810 F.2d 1296, 1305 (5th Cir. 1987)). However, “[t]here is no requirement that the ALJ narrate
in [her] opinion exactly how [s]he considered combinations of impairments.” Jackson v. Colvin,
Civ. No. 7:13-CV-039-BL, 2014 WL 4547819, at *7 (N.D. Tex. Sept. 15, 2014). “That the ALJ
did not specifically cite each and every piece of medical evidence considered does not establish
an actual failure to consider the evidence.” Castillo v. Barnhart, 151 F. App’x 334, 335 (5th Cir.
2005) (citing Falco v. Shalala, 27 F.3d 160, 163 (5th Cir. 1994)). It is sufficient if the ALJ’s
opinion, as a whole, indicates that the ALJ considered the combined effect of the claimant’s
impairments. See Hajek v. Shalala, 30 F.3d 89, 92 (8th Cir. 1994) (finding that ALJ properly
considered combined effect of impairments where ALJ stated claimant “has not had an
impairment or combination of impairments,” referenced the “evidence as a whole,” and referred
to claimant’s impairments and symptoms in the plural); Soto v. Colvin, Civ. Action No. 5:12CV-00084-BG ECF, 2013 WL 1787562, at *5 (N.D. Tex. 2013) (finding that ALJ properly
considered combined effect of impairments where “he recognized that he had to consider . . .
combination of impairments in his review of applicable law,” “expressly found no . . .
‘impairment or combination of impairments,’” and stated that he considered “all of the
evidence,” “all symptoms,” and “the entire record”).

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Here, the record sufficiently reflects that the ALJ considered the combined effect of
Claimant’s impairments. First, the ALJ explicitly recognized several times in reviewing the
applicable law that she was required to consider whether Claimant had a “combination of
impairments.” R. at 9. The ALJ further noted that her “residual functional capacity assessment
reflects the degree of limitation” that the ALJ had given to Claimant’s depression and groin
abscess. Id. at 11. The ALJ then expressly found that “[C]laimant does not have an impairment
or combination of impairments that meets or medically equals the severity of one of the listed
impairments.” Id. (emphasis added). Furthermore, in explaining this conclusion, the ALJ
referenced Claimant’s impairments in the plural, id. at 11-12, and stated that she considered “the
entire record” and “all [of Claimant’s] symptoms.” Id. at 12.
Accordingly, the Court finds that the record sufficiently establishes that the ALJ properly
considered the combined effect of Claimant’s impairments. See Hajek, 30 F.3d at 92.
Claimant’s first objection is overruled.
2.

Claimant has not established that the ALJ’s failure to properly
develop the record resulted in prejudice.

Claimant next asserts that “[t]he failure of the ALJ to gather all of [Claimant’s] medical
records clearly prejudiced his disability claim.” Objections 4. Specifically, Claimant alleges that
the ALJ failed to develop the record by not obtaining “the medical records indicat[ing] that
[Claimant] was diagnosed with [d]epression and that his doctor had prescribed medication to
treat the illness.” Id. Therefore, according to Claimant, “[t]he ALJ rendered her decision
without knowing whether the medical records that she fail[ed] to obtain had an effect [o]n
[Claimant’s] ability to engage in gainful employment.” Id.

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“It is the duty of the [ALJ] to develop the facts relative to a claim for benefits fully and
fairly.” Kane, 731 F.2d at 1219. “The ALJ’s ‘basic obligation to develop a full and fair record
rises to a special duty when an unrepresented claimant unfamiliar with the hearing procedures
appears before [her].’” Id. (citing Clark v. Harris, 638 F.2d 1347, 1351 (5th Cir. 1981)); see also
Bowling v. Shalala, 36 F.3d 431, 437 (5th Cir. 1994). Nonetheless, even under the heightened
duty accorded to pro se claimants, the Court will “reverse an ALJ’s decision for failure to
develop the record adequately only if a claimant shows the he was prejudiced as a result of the
hearing.” See Bowling, 36 F.3d at 437; see also Brock v. Chater, 84 F.3d 726, 728 (5th Cir.
1996). “‘Prejudice can be established by showing that additional evidence would have been
produced if the ALJ had fully developed the record, and that the additional evidence might have
led to a different decision.’” Newton v. Apfel, 209 F.3d 448, 458 (5th Cir. 2000) (quoting Ripley
v. Chater, 67 F.3d 552, 557 n.22 (5th Cir. 1995)). “A mere allegation that additional beneficial
evidence might have been gathered had the error not occurred is insufficient to meet this
burden.” Jones v. Astrue, 691 F.3d 730, 735 (5th Cir. 2012). “Without proof of prejudice, there
is no basis for remand.” Hawkins v. Astrue, No. 3:09-CV-2094-BD, 2011 WL 1107205, at *7
(N.D. Tex. Mar. 25, 2011) (citing Newton, 209 F.3d at 458).
At the hearing, Claimant stated that he had recently received medical treatment for
depression at the William Beaumont and VA hospitals. R. at 22. The ALJ acknowledged that
medical records from that treatment had not been presented at the hearing, and told Claimant that
she would obtain the records prior to issuing her decision. Id. at 22, 34-35. There is no
indication in the record, however, that the ALJ in fact obtained the medical records or relied on
them in denying benefits. The Court shares the Magistrate Judge’s concern regarding the ALJ’s
failure to obtain the medical records and agrees that “it would be much better practice to follow
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through on what a claimant is advised will take place.” See R&R 11. Nonetheless, the ALJ’s
failure to obtain the records, without more, is insufficient to remand the decision. See Bowling,
36 F.3d at 437. Claimant must also establish that the ALJ’s failure to do so resulted in prejudice.
See id.
Claimant has not presented any evidence or argument indicating how the ALJ’s failure to
obtain the medical records resulted in prejudice. At best, Claimant states that “the medical
records indicate that [Claimant] was diagnosed with [d]epression and that his doctor had
prescribed medication to treat the illness.” Objections 4. The record, however, shows that the
ALJ accepted that Claimant suffered from some degree of depression, but found that Claimant’s
depression “did not cause more than minimal limitation in the [C]laimant’s ability to perform
basic mental work activities and [is] therefore non-severe.” R. at 10. In so concluding, the ALJ
relied on Claimant’s own testimony indicating no limitation to the four functional areas pertinent
in weighing the degree of limitation with mental impairments. See id. at 11; see also 20 C.F.R. §
404.1520a (defining grounds for evaluating mental impairments). Furthermore, Claimant
himself described his depression as “just . . . think[ing] about [his] situation . . . not being able to
work like [he] want[s] to and make money so [he] could support [his] children first and foremost
and pay for some bills and some of the food that [he] eat[s].” R. at 31. Depression as a
consequence of anxiety regarding the inability to work has consistently been found insufficient
to establish a serious mental or emotional impairment. See Mayes v. Astrue, No. 08-10306, 2008
WL 5069750, at *3 (5th Cir. Dec. 2, 2008); Jones v. Bowen, 829 F.2d 524, 526 (5th Cir. 1987);
Fraga, 810 F.2d at 1305. Accordingly, the Court finds that the record as a whole “contains
substantial evidence that supports the final decision of the [ALJ], as trier of fact.” See Kane, 731
F.2d at 1219.
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Despite this substantial evidence supporting the ALJ’s conclusion, Claimant has offered
no explanation, much less evidence, establishing how the medical records at issue could or
would have altered the ALJ’s decision. Claimant’s “mere allegation that additional beneficial
evidence might have been gathered had the error not occurred is insufficient to meet [his]
burden” to show prejudice. Bluitt v. Colvin, Civ. Action No. 4:14-CV-0115, 2015 WL 1004215,
at *13 (S.D. Tex. Mar. 6, 2015) (citing Jones, 691 F.3d at 735); see also Ware v. Schweiker, 651
F.2d 408, 414 (5th Cir. 1981) (finding no prejudice where there was “no evidence that the search
or added evidence would have been beneficial” to the claimant). Consequently, “[w]ithout proof
of prejudice, there is no basis for remand.” Hawkins, 2011 WL 1107205, at *7. Claimant’s
second objection is overruled.
3.

The ALJ did not err in not ordering a consultative examination.

Claimant next argues that the ALJ “also failed to order a consultative examination to
determine the severity of [Claimant’s] non-exertional impairments.” Objections 5. Specifically,
Claimant asserts that he “was prejudiced by the ALJ’s failure to [o]rder a psychiatric
examination [because] his allegations of [depression] were timely raised, and were sufficient to
raise a suspicion of non-exertional impairments.” Id. at 6 (internal quotations omitted).
An ALJ has the discretion to order a consultative examination. Anderson, 887 F.2d at
634. However, an ALJ’s discretion is “limited where the claimant ‘raises the requisite suspicion’
that such an examination is necessary for the ALJ to discharge his duty of full inquiry.”
Haywood v. Sullivan, 888 F.2d 1463, 1472 (5th Cir. 1989) (quoting Pearson v. Bowen, 866 F.2d
809, 812 (5th Cir. 1989)). “A consultative evaluation becomes ‘necessary’ only when the
claimant presents evidence sufficient to raise a suspicion concerning a non-exertional
impairment.” Brock, 84 F.3d at 728 (citing Jones, 829 F.2d at 526). A claimant’s “isolated
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comments” about an impairment “when viewed within the record as a whole” may not be
sufficient to raise the requisite impairment. See Pierre v. Sullivan, 884 F.2d 799, 803 (5th Cir.
1989).
The Court finds that the record contains substantial evidence supporting the ALJ’s
decision not to order a psychiatric consultation. See Kane, 731 F.2d at 1219. Though Claimant
stated that he had received treatment for depression a month before the hearing, Claimant
described this depression as “just . . . think[ing] about [his] situation . . . not being able to work
like [he] want[s] to and make money so [he] could support [his] children first and foremost and
pay for some bills and some of the food that [he] eat[s].” R. at 31. As stated above, depression
as a consequence of anxiety regarding the inability to work has consistently been found as
insufficient to establish a claim of mental or emotional impairment. See Mayes, 2008 WL
5069750, at *3; Jones, 829 F.2d at 526; Fraga, 810 F.2d at 1305.
Furthermore, the record indicates that Claimant does not have trouble socializing or
interacting with others, concentrating when driving or watching television, or performing daily
activities such as housework, babysitting, and driving his parents as needed. R. at 28, 31. These
facts lend further support to the ALJ’s conclusion that Claimant’s asserted depression was of
“minimal limitation” to Claimant’s ability to perform basic mental work activities and was not
otherwise severe. See id. at 10-11; 20 C.F.R. § 404.1520a (setting forth the criteria for
evaluating mental impairments).
The record contains no evidence raising any other suspicion regarding Claimant’s
depression or other mental impairments. Accordingly, upon review of the record as a whole, the
Court finds that Claimant failed to raise the requisite suspicion to necessitate a psychiatric
examination. Cf. Watson v. Astrue, No. 06-1784, 2008 WL 4072831, at *5 (W.D. La. July 1,
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2008) (finding requisite suspicion raised where claimant made multiple delusional statements at
hearing); Brown v. Apfel, No. A 97 CA 308 SS, 1998 WL 1031526, at *2 (W.D. Tex. Sept. 14,
1998) (finding requisite suspicion raised where claimant with an IQ of 67 made multiple
references to depression, including nonsensical statements regarding prior treatment). Therefore,
because the Court finds that the record as a whole contains substantial evidence supporting the
ALJ’s decision to not order a consultative examination, Claimant’s third objection is overruled.
See Kane, 731 F.2d at 1219.
4.

The ALJ’s hypothetical questions to the vocational expert were not
deficient.

Claimant alleges that “the hypothetical[s] presented by the ALJ to the Vocational Expert
w[ere] defective in that the hypothetical[s] failed to incorporate all of [Claimant’s] impairments.”
Objections 7. Specifically, according to Claimant, the ALJ’s hypotheticals failed to incorporate
any reference to Claimant’s depression, insomnia, chronic back pain, diabetes, or sedationrelated side effects from prescribed medications. Id. at 7-8.
The Fifth Circuit “has created a two-part test for determining whether an ALJ’s
hypothetical question constitutes reversible error: first, the question must include all disabilities
of the claimant recognized by the ALJ; and second, the claimant or his representative should be
allowed to correct deficiencies in the ALJ’s question.” Weimer v. Astrue, 284 F. App’x 129, 135
(5th Cir. 2008) (citing Bowling, 36 F.3d at 435). Accordingly, “[t]he hypothetical question that
an administrative law judge poses to a vocational expert need only incorporate the disabilities
that the administrative law judge recognizes.” Wise v. Barnhart, 101 F. App’x 950, 951 (5th Cir.
2004) (citing Bowling, 36 F.3d at 435; Morris v. Bowen, 864 F.2d 333, 336 (5th Cir. 1988)). The
disabilities that must be included in the ALJ’s hypothetical are those disabilities recognized by
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the ALJ in her residual functional capacity analysis as limitations on the claimant’s ability to
work. See Bordelon v. Astrue, 281 F. App’x 418, 422 (5th Cir. 2008). A court need not reach
the second prong of the analysis if it finds that the hypothetical question posed by the ALJ
reasonably incorporates the disabilities recognized by the ALJ. Weimer, 284 F. App’x at 135.
Here, the ALJ found that “[C]laimant has the residual functional capacity to perform light
work . . . except for avoidance of unprotected heights.” R. at 12. The ALJ’s first hypothetical
asked the Vocational Expert to assume “an individual at the medium level who would need to
avoid concentrated exposure to unprotected heights.” Id. at 34. The second and third
hypotheticals asked the Vocational Expert to assume “an individual at the light level who would
need to avoid concentrated exposure to unprotected heights.” Id. Therefore, “[b]ecause the ALJ
properly articulated [Claimant’s] specific functional limitation[] in the hypothetical question[s]
to the [Vocational Expert], the hypothetical[s] [were] valid.” See Bordelon, 281 F. App’x at 422
(citing Hames v. Heckler, 707 F.2d 162, 165 (5th Cir. 1983)). Claimant’s contention to the
contrary “fails to distinguish between [his] diagnosed impairments and the functional limitations
caused by those impairments on [his] ability to work.” Id.; see also Brown v. Comm’r of Social
Sec., Civ. Action No. 12-761-BAJ-RLB, 2014 WL 1239329, at *9 (M.D. La. Mar. 25, 2014).
Claimant’s objection on this ground, therefore, is overruled.
5.

Claimant has not shown that the ALJ’s failure to let Claimant
question the Vocational Expert led to prejudice.

Finally, Claimant alleges that he was prejudiced by the ALJ’s failure to allow him the
opportunity to question the Vocational Expert. Objections 8.
Because the Court has found that the ALJ’s hypotheticals were not deficient, the Court
need not consider whether it was error for the ALJ to not allow the Claimant to question the
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Vocational Expert. See Weimer, 284 F. App’x at 135 (“[The Court] need not reach the second
prong of this test because we find that the hypothetical question posed by the ALJ reasonably
incorporates the disabilities recognized by the ALJ.”). Nonetheless, even assuming that the ALJ
improperly denied Claimant the opportunity to question the Vocational Expert, the Court notes
that “[p]rocedural perfection in administrative proceedings is not required.” Mays, 837 F.2d at
1364. The Court “will not vacate a judgment unless the substantial rights of a party have been
affected.” Id. Claimant has offered nothing more than the bare assertion that “he was prejudiced
in that he was not given the opportunity to ask questions to the [V]ocational [E]xpert to correct
mistakes in the hypothetical[s].” Objections 8. There is no explanation how this prejudiced
Claimant, how he would have corrected any alleged error, or how this affected his substantial
rights. Accordingly, Claimant’s objection that he was prejudiced by the ALJ’s failure to allow
him to question the Vocational Expert is overruled. See Bowen, 837 F.2d at 1364.
III.

CONCLUSION
For the foregoing reasons, Claimant’s Objections, ECF No. 14, are hereby
OVERRULED. The Magistrate Judge’s R&R, ECF No. 13, is ADOPTED as the findings and
conclusions of the Court, and the Case is hereby DISMISSED.
The Clerk shall close the Case.
SO ORDERED.
SIGNED this 20th day of March, 2015.

KATHLEEN CARDONE
UNITED STATES DISTRICT JUDGE
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