Dunn, Jr. v. Colvin
MEMORANDUM OPINION AND ORDER. Signed by Judge Miguel A. Torres. (jg1)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
KERRY VIGIL DUNN, JR.,
NANCY A. BERRYHILL,'
ACTING COMMISSIONER OF THE
SOCIAL SECURITY ADMINISTRATION §
MEMORANDUM OPINION AND ORDER
This is a civil action seeking judicial review of an administrative decision pursuant to 42
405(g). Plaintiff Kerry Vigil Dunn, Jr. ("Dunn"), appeals from the decision of the
Commissioner of the Social Security Administration ("Commissioner") denying his claims for
Disability Insurance Benefits ("DIB") under Title II of the Social Security Act ("the Act") and
Supplemental Security Income ("SSI") under Title XVI of the Act. The parties consented to the
transfer of the case to this Court for determination and entry of judgment.
636(c); Local Court Rule CV-72. For the reasons set forth below, the Commissioner's decision
will be AFFIRMED.
Nancy A. Berryhill is now the Acting Commissioner of the Social Security Administration. Pursuant to Federal
Rule of Civil Procedure 25(d), Nancy A. Berryhill is substituted for Acting Commissioner Carolyn W. Colvin as the
defendant in this case.
Dunn's past work was to mark material in preparation for sewing for Ready One
Industries, a position he held from February 2008 until February 2010. (R. 35, 170).2 He was
twenty-eight years old at the time of his hearing before the Administrative Law Judge ("AU") in
2013. (R. 119). Dunn filed applications for DIB and SSI on October 13, 2010, in which he
alleged disability beginning July 10, 1 984, due to cerebral palsy and
After his applications were denied initially and upon reconsideration, Dunn requested a hearing.
(R. 55-60, 63, 66-74). On March 19, 2013, he appeared with his attorney for a hearing before the
(R. 30-48). On May 1, 2013, the AU issued a written decision denying benefits on the
ground that Dunn was capable of performing work that exists in significant numbers in the
national economy. (R. 14-24). On June 26, 2014, the Appeals Council denied Dunn's request for
review, thereby making the AU's decision the Commissioner's final administrative decision. (R.
4-9). Dunn argues that the AU's residual functional capacity ("RFC") determination is not
supported by substantial evidence.
A. STANDARD OF REVIEW
This Court's review is limited to a determination of whether the Commissioner's final
decision is supported by substantial evidence on the record as a whole and whether the
Commissioner applied the proper legal standards in evaluating the evidence. Myers
F.3d 617, 619 (5th Cir. 2001) (quoting Greenspan
Shalala, 38 F.3d 232, 236 (5th Cir. 1994)).
Reference to the record of administrative proceedings is designated by (R. [page number(s)]).
Dunn's onset date was amended to February 1, 2010, at the hearing. (R. 34).
At the hearing, Dunn's attorney argued that Dunn was disabled due to cerebral palsy, a learning disorder, attention
deficit hyperactivity disorder ("ADHD"), and borderline intellectual functioning. (R. 35).
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
Chater, 67 F.3d
552, 555 (5th Cir. 1995). A finding of"no substantial evidence" will be made only where there is
a "conspicuous absence
of credible choices" or
"no contrary medical evidence." Abshire
Bowen, 848 F.2d 638, 640 (5th Cir. 1988).
In determining whether there is substantial evidence to support the findings
Commissioner, the Court must carefully examine the entire record, but may not reweigh the
evidence or try the issues de novo. Newton
Apfel, 209 F.3d 448, 452 (5th Cir. 2000). 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
F.3d 357, 360 (5th Cir. 1993). If the
Commissioner applied the proper legal standards and her findings are supported by substantial
evidence, they are conclusive and must be affirmed. Id.
Disability is defined as the "inability to engage in any substantial gainful activity by
reason of any medically determinable physical or mental impairment which.
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 engaged in substantial gainful activity; (2) whether the claimant
has a severe medically determinable physical or mental impairment or combination of
impairments; (3) whether the claimant's impairment or combination of impairments meets or
equals the severity of an impairment listed in 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.
Chater, 67 F.3d 558, 564 (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
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
Schweiker, 684 F.2d 1144,
1155 (5th Cir. 1982). 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 alternative
work. Fruge v. Harris, 631 F.2d 1244, 1246 (5th Cir. 1980) (citations omitted).
B. RFC IS SUPPORTED BY SUBSTANTIAL EVIDENCE
RFC is defined as the most an individual can still do despite his limitations. 20 C.F.R.
404.1545, 416.945. The responsibility to determine the claimant's RFC belongs to the AU.
Ripley, 67 F.3d at 557. In making this determination, the AU must consider all the record
evidence and determine Plaintiffs abilities despite any physical and mental limitations. 20
404.1545, 416.945. The AU
must consider the limiting effects of Plaintiffs
impairments, even those that are non-severe, and any related symptoms. See 20 C.F.R.
404.1545, 416.945, 404.1529, 416.929. However, a claimant's own subjective complaints,
without supporting objective medical evidence, are insufficient to establish disability.
404.1508, 416.908, 404.1528, 416.928, 404.1529, 416.929. The AU is not required to
incorporate limitations in the RFC that he did not find to be supported in the record. See
864 F.2d 333, 336 (5th Cir. 1988).
The AU found that Dunn had the RFC to perform light work5 except he was: (1) limited
to frequent but not constant fingering; and (2) limited to simple routine tasks with reasoning
level 1.6 (R. 18). Dunn argues that the AU
failed to properly accommodate all limitations
resulting from his mental impairments, and thus the AU's RFC finding is inconsistent with the
evidence of the record. (ECF No. 22, at 4). According to Dunn, these limitations arise from
several conditions, including ADHD, a learning disability, borderline intellectual functioning,
and mental retardation. (ECF No. 22, at 4). Specifically, Dunn asserts these conditions affect his
ability to: (1) attend and complete tasks; (2) acquire and use information; (3) function socially.
(ECF No. 22, at 9). In support of this argument, the plaintiffs brief discusses his medical history
in a single paragraph that runs five pages, with limited substantive analysis. (ECF No. 22, at 4-
"Light work involves 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, a job is in this category when 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. To be considered capable of performing a full or wide range of light work, you must have the ability to do
substantially all of these activities." 20 C.F.R. § 404.1567(b), 416.967(b).
"Frequent' means occurring from one-third to two-thirds of the time. Since frequent lifting or carrying
requires being on one's feet up to two-thirds of a workday, the full range of light work requires standing or walking,
off and on, for a total of approximately 6 hours of an 8-hour workday. Sitting may occur intermittently during the
remaining time." SSR 83-10, at *6 (1983).
"Apply commonsense understanding to carry out simple one- or two-step instructions. Deal with standardized
situations with occasional or no variables in or from these situations encountered on the job." U.S. Dep't of Labor,
Dictionary of Occupational Titles, Vol. II, App. C § III (4th ed. 1991).
Despite Dunn's severe mental impairments, including borderline intellectual functioning,
a learning disorder, and anxiety, and his ADHD diagnosis, there is substantial evidence in the
record to support the AU's RFC determination. In 2005, Dunn underwent a psychological
consultative examination conducted by James W. Schutte, Ph.D. (R. 318-22). Dunn reported that
he was capable
of relating to others appropriately, and that he had friends.
(R. 321). Dr. Schutte
indicated that Dunn could follow simple storylines and simple instructions, and that he could
carry out simple tasks. (R. 321). Dr. Schutte also noted that Dunn's cognitive functions, and
specifically his attention and concentration, appeared somewhat limited, but concluded that
Dunn's ability to make occupational, personal, and social adjustments seemed only moderately
impaired. (R. 319, 321).
In 2011, Dunn underwent another psychological consultative examination with Dr.
Schutte. (R. 377-8 1). Dunn's attention and concentration were measured to be in the extremely
low range of the WAIS-IV Digit Span subtest, and Dunn reported that he could follow simple
instructions only for short periods of time before he would get distracted. (R. 379-80). However,
Dr. Schutte noted that Dunn's "[a]ttention and concentration appeared within normal limits
during the interview, and no hyperactivity was observed, aside from [a hand tremor.]" (R. 379).
The medical record further indicates that Dunn's "cognitive functions appeared grossly intact
and he was alert and responsive to his surroundings." (R. 379). Dunn also reported that that he
had friends and was able to get along with others, but that he felt nervous when he was in front
of other people, required to talk to groups of people, and in crowds. (R. 3 79-80). Dr. Schutte
remarked that Dunn's anxiety disorder only moderately impaired his ability to make
occupational, personal, and social adjustments. (R. 380). Although these records clearly show
that Dunn had limitations in regard to his attention, concentration, and social abilities, they do
not contain any medical opinions that contradict the AU's RFC determination.
Similarly, medical opinions that specifically rate Dunn's occupational and social
limitations do not conflict with the
RFC determination. Dr. Schutte rated Dunn's global
assessment of functioning ("GAF") as 55 in his 2005 exam, and 60 in his 2011 exam. (R. 321,
380). Both of these scores fall within the range indicating only moderate symptoms, or moderate
difficulty in social, occupational, or school functioning. American Psychiatric Ass'n, Diagnostic
and Statistical Manual
Disorders 34 (4th ed. text. rev. 2000)
("DSM-IV-TR").7 In a
Medical Source Statement from 2013, Ed Borrego, M.D., rated Dunn's abilities regarding work-
related mental activities. (R. 446-47). That form defined a "moderate" rating as: "There is
moderate limitation is this area but the individual is still able to function satisfactorily." (R.
446) (emphasis added). Dr. Borrego rated Dunn's ability to understand and remember short,
simple instructions and carry out short, simple instructions as moderate. (R. 446). Dunn's ability
to interact appropriately with the public was only rated as slightly impaired, and his ability to
interact appropriately with supervisor(s) and interact appropriately with co-workers was also
rated as moderate. (R. 447). The moderate GAF classifications and Dr. Borrego's ratings
indicating that Dunn "is still able to function satisfactorily" are congruent with the
Furthermore, the record indicates that Dunn took medicine that lessened the limitations
caused by his ADHD. "If an impairment reasonably can be remedied or controlled by medication
Additionally, it should be noted that "[ijnstead of viewing GAF scores as absolute determiners of the ability to
work, ALJs should make disability determinations on a case-by-case basis, considering the entire record." Jackson v.
Colvin, No. 4:14-CV-756-A, 2015 WL 7681262, at *3 (N.D. Tex. Nov. 5, 2015), report and recommendation
adopted, No. 4:14-CV-756-A, 2015 WL 7582339 (N.D. Tex. Nov. 25, 2015).
or therapy, it cannot serve as a basis for a finding of disability." Johnson
Bowen, 864 F.2d 340,
348 (5th Cir. 1988) (citations omitted). Medical records from March 19, 2007, through February
4, 2013, establish that Dr. Borrego treated Dunn for medication management, including
medication such as Dexedrine, Ritalin, and Adderall, and supportive psychotherapy for his
ADHD. (R. 429-45). A February 4, 2009, medical progress note states that Dunn was doing well
and denied having side effects from his medication. (R. 439). Another medical progress report
from March 24, 2011, indicates that Dunn was doing well on his current dose of medication, and
that he denied having any side effects. (R. 434). A March 7, 2012, medical progress note
indicates that Dunn continued to do well. (R. 432). Finally, during the hearing, Dunn testified
that he was still taking Dexedrine and that "[it] does help with my attention but it does make me
nervous." (R. 36, 38-39). Based on the foregoing, the Court finds that the
determination that Dunn can perform light work limited to simple and routine tasks with
is supported by substantial evidence.
ABILITY TO MAINTAIN EMPLOYMENT
Dunn also appears to argue that his work history demonstrates his limitations preclude
him from maintaining employment. (ECF No. 22, at 4). Generally, an AU is not required to
explicitly fmd that a claimant can maintain employment because the ability to work on a regular
and continuing basis is inherent in the definition of RFC. Dunbar v. Barnhart, 330 F.3d 670, 672
(5th Cir. 2003). A finding of the ability to maintain employment may be necessary when a
claimant's condition waxes and wanes in its manifestation of disabling symptoms. See Frank v.
Barnhart, 326 F.3d 618, 619 (5th Cir. 2003); see also Singletary v. Bowen, 798 F.2d 818, 821-23
(5th Cir. 1986). "A determination that a claimant is unable to continue working for significant
periods of time must, however, be supported by more than a claimant's personal history; it must
also be supported by medical evidence." Singletary, 798 F.3d at 822.
The facts of this case did not require the AU to make a distinct finding as to Dunn's
ability to maintain employment. Dunn has not presented sufficient medical evidence to show that
his conditions significantly wax and wane. See Perez
2005). A summary
Barnhart, 415 F.3d 457, 465-66 (5th Cir.
of Dunn's personal work history and self-reports about his inability to
maintain employment are
not enough. See Singletay, 798 F.3d at 823 (finding claimant
could not maintain employment based in part on a doctor's conclusion that claimant was "an
inadequate personality with periodic alcohol and drug abuse that leads to transient psychotic
episodes in a person with low average intelligence, who has had some diffuse brain damage, has
had a nomadic life and who had a chaotic rearing."). Thus, the Court holds that the AU did not
err in implicitly finding that Dunn can maintain employment based on her RFC determination,
which was supported by substantial evidence.
D. VOCATIONAL EXPERT HYPOTHETICAL
During the hearing, Dunn's attorney posed the vocational expert ("yE") a hypothetical
about whether someone with Dunn's age, education, and previous work history would be able to
maintain employment if he "would be off task more than 20 percent of the day." (R. 47). The VE
responded that such a hypothetical individual would not be able to maintain any type of
employment. (R. 47). An AU is not required to consider the response to "a hypothetical question
composed of assumptions subsequently found unsupported by medical evidence." Owens
Heckler, 770 F.2d 1276, 1282 (5th Cir. 1985). The AU did not include in her RFC determination
a limitation that Dunn would be
off task more than 20 percent of the day, and thus the
not required to consider the VE's response to that hypothetical question.
IT IS ORDERED that the decision of the Commissioner will be AFFIRMED.
day of June, 2017.
SIGNED and ENTERED this
UNITED STATES MAGISTRATE JUDGE
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