Opinion
Civil Action No. SA-04-CA-1057 FB (NN).
October 19, 2005
MEMORANDUM AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
TO: Hon. Fred Biery United States District Judge
I. Introduction
Plaintiff Angelita Medina seeks review and reversal of the administrative denial of her application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") by the Administrative Law Judge ("ALJ") on August 13, 2004. Plaintiff contends that ALJ Karen McCoy erred in finding that plaintiff was able to perform light work and also erred in finding that plaintiff was able to perform her past relevant work. Plaintiff argues that these findings are not supported by substantial evidence and requests that the court reverse, remand and order the entry of a finding of disability, or, in the alternative, remand the case for proper development.After considering plaintiff's brief in support of her complaint, defendant's brief in support of the Commissioner's decision, plaintiff's reply brief, the transcript of the Social Security Administration (hereinafter "SSA") proceedings, the pleadings on file, the applicable case authority and relevant statutory and regulatory provisions, and the entire record in this matter, it is my recommendation that plaintiff's request for relief be DENIED.
Docket Entry 13.
Docket Entry 17.
Docket Entry 15.
I have jurisdiction to enter this Memorandum and Recommendation under 28 U.S.C. § 636(b) and the District Court's Order referring all pretrial matters in this proceeding to me for disposition by order, or to aid in their disposition by recommendation where my authority as a Magistrate Judge is statutorily constrained.
II. Jurisdiction
The court has jurisdiction under 42 U.S.C. § 405(g).
III. Administrative Proceedings
According to the record in this case, plaintiff fully exhausted her administrative remedies prior to filing this action in federal court. Plaintiff filed an application for Disability Insurance Benefits and Supplemental Security Income on March 19, 2003, alleging secondary myopathy and cervical and lumbosacral radiculopathy. Plaintiff claims to be disabled since January 21, 2001. The SSA initially denied plaintiff's application on May 6, 2003, and again on reconsideration on June 30, 2003.
Transcript at 93-95, 106.
Transcript at 93-95, 106.
Transcript at 69-73.
Transcript at 76-80.
Plaintiff then requested a hearing before an ALJ. The hearing was held on August 4, 2004. Plaintiff was represented by counsel at the hearing. Plaintiff's attorney was able to examine and question plaintiff, as well as the medical expert, Randall B. King, M.D., and the vocational expert, Donald Marth, Ph.D., during the hearing.
Transcript at 81.
Transcript at 24-66.
Plaintiff, who was forty-nine (49) at the August 2004 hearing, testified that she had a high school education. Plaintiff stated that she lived with her husband and had three adult children who did not live with her. Plaintiff testified that she did not smoke, drink alcohol or use illegal drugs.
Transcript at 14.
Transcript at 28.
Transcript at 28-29.
Transcript at 29-30.
Plaintiff stated that she had worked in the past as a cashier, waitress, loan officer and operations clerk. Plaintiff testified that she was not currently working, and that she had not ever received workers' compensation benefits.
Transcript at 30.
Transcript at 30.
Plaintiff told the ALJ that she was last employed as a loan officer from September 2002 to December 2002. Plaintiff testified that she was terminated from that position because she missed work for some or all of one day a week over a three-week period in order to receive injections. Plaintiff stated that prior to her job as a loan officer, she had worked as an operations clerk in a golf course shop, where she used a computer, answered the phone and priced merchandise. Plaintiff stated that she was terminated from that position due to a reduction in force. Plaintiff testified that she had previously worked for ten years as a cashier and waitress at a bowling alley. Plaintiff stated that she hadn't looked for work since December of 2002.
Transcript at 30-31. See also Transcript at 102.
Transcript at 32-33.
Transcript at 33-34.
Transcript at 34.
Transcript at 35.
Transcript at 35.
Plaintiff testified that the pain in her hands, back, legs and feet prevented her from working. Plaintiff stated that cold weather exacerbated her pain. Plaintiff further testified that she hadn't done any housework in approximately three years. Plaintiff stated that her husband did all the cooking, except that plaintiff would occasionally make a sandwich or open a box of cereal for herself. When asked about her routine activities, plaintiff told the ALJ that she drove approximately twice a week for a total distance of approximately one hundred (100) miles per week. Plaintiff testified that during the day she watched TV, read magazines and occasionally went for walks to alleviate stiffness in her back and legs. Plaintiff told the ALJ that she attended church every Sunday.
Transcript at 35.
Transcript at 47.
Transcript at 36.
Transcript at 36.
Transcript at 29.
Transcript at 36-37.
Transcript at 37.
Plaintiff testified that she took baby aspirin, Premarin, hydrocodone, Lexapro, and methocarbamol for her pain. Plaintiff stated that these medications alleviated her pain for approximately an hour and a half. Plaintiff testified that taking hydrocodone caused her to feel nauseated and dizzy. Plaintiff told the ALJ that her doctor prescribed her Propox in response to her complaints about these side effects.
Transcript at 38.
Transcript at 38.
Transcript at 38.
Transcript at 39.
ALJ McCoy also heard testimony from the medical expert, Dr. Randall B. King. Based upon his review of the record, Dr. King testified that plaintiff's condition did not meet or medically equal the criteria of section 1.04A of the Listing of Impairments. Dr. King concluded that there was no objective evidence precluding plaintiff from performing light exertional level work without any further limitations.
Transcript at 50-58.
Transcript at 53. An impairment meets or medically equals Listing 1.04A if the impairment — herniated nucleus pulposus, spinal arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis, vertebral fracture, or other similar impairment — results in compromise of the nerve root or the spinal cord. 20 C.F.R. § 404, Part 404, Subpart P, Appendix 1, Listing 1.04. In addition, the impairment must manifest the following symptoms under Listing 1.04A: "Evidence of nerve root compression characterized by neuroanatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss and, if there is involvement of the lower back, positive straight-leg raising test (sitting and supine)." Id.
Transcript at 53.
ALJ McCoy also heard testimony from the vocational expert, Donald Marth, Ph.D. Dr. Marth stated that plaintiff had past relevant work as a secretary and an operations clerk. Dr. Marth testified that these jobs were predominantly sedentary and required some light physical activity.
Transcript at 58-62.
Transcript at 60-62.
Transcript at 60-62.
On August 13, 2004, the ALJ issued her decision in which she concluded that plaintiff was not under a "disability," as defined by the Social Security Act ("the Act"), at any time through the date of the decision. Specifically, ALJ McCoy found that plaintiff retained the residual functional capacity ("RFC") to perform her past relevant work as a secretary and as an operations clerk as those jobs are customarily performed and as plaintiff had previously performed those jobs.
Transcript at 14-20.
Transcript at 19-20.
After receiving the ALJ's unfavorable decision, plaintiff requested review of the hearing decision on October 7, 2004. On November 5, 2004, the Appeals Council concluded that there was no basis upon which it could grant plaintiff's request for review, thereby denying plaintiff's request. Plaintiff commenced the instant action on November 22, 2004.
Transcript at 9.
Transcript at 5-7.
Docket Entry 1.
IV. Issue Presented
Whether the ALJ's decision is supported by substantial evidence and comports with relevant legal standards.V. Analysis
A. Standard of Review
In reviewing the Commissioner's decision denying disability insurance benefits, I am limited to a determination of whether substantial evidence supports the decision and whether the Commissioner applied the proper legal standards in evaluating the evidence. "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." Substantial evidence "must do more than create a suspicion of the existence of the fact to be established, but `no substantial evidence' will be found only where there is a `conspicuous absence of credible choices' or `no contrary medical evidence."'
Martinez v. Chater, 64 F.3d 172, 173 (5th Cir. 1995); 42 U.S.C. §§ 405(g), 1383(c)(3).
Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990) (quoting Hames v. Heckler, 707 F.2d 162, 164 (5th Cir. 1983)).
Abshire v. Bowen, 848 F.2d 638, 640 (5th Cir. 1988) (quoting Hames, 707 F.2d at 164).
If the Commissioner's findings are supported by substantial evidence, then they are conclusive and must be affirmed. In my review of the Commissioner's findings, I must carefully examine the entire record, but refrain from re-weighing the evidence or substituting my judgment for that of the Commissioner. Conflicts in the evidence and credibility assessments are for the Commissioner and not for the courts to resolve. Four elements of proof are weighed by the courts in determining if substantial evidence supports the Commissioner's determination: (1) objective medical facts, (2) diagnoses and opinions of treating and examining physicians, (3) the claimant's subjective evidence of pain and disability, and (4) the claimant's age, education and work experience.
Martinez, 64 F.3d at 173.
Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995); Villa, 895 F.2d at 1021.
Martinez, 64 F.3d at 174.
Id.
1. Entitlement to Benefits
Every individual who is insured for disability insurance benefits, has not reached retirement age, has filed an application for benefits, and is under a disability is entitled to receive disability insurance benefits. The term "disabled" or "disability" means the 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 twelve months." A claimant shall be determined to be disabled only if his physical or mental impairment or impairments are so severe that he is unable to not only do his previous work, but cannot, considering his age, education, and work experience, participate in any other kind of substantial gainful work which exists in significant numbers in the national economy, regardless of whether such work exists in the area in which he lives, whether a specific job vacancy exists, or whether he would be hired if he applied for work.
2. Evaluation Process and Burden of Proof
Regulations set forth by the Commissioner prescribe that disability claims are to be evaluated according to a five-step process. A finding that a claimant is disabled or not disabled at any point in the process is conclusive and terminates the Commissioner's analysis.
20 C.F.R. §§ 404.1520 and 416.920.
Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995).
The first step involves determining whether the claimant is currently engaged in substantial gainful activity. If so, the claimant will be found not disabled regardless of his medical condition or his age, education, or work experience. The second step involves determining whether the claimant's impairment is severe. If it is not severe, the claimant is deemed not disabled. In the third step, the Commissioner compares the severe impairment with those on a list of specific impairments. If it meets or equals a listed impairment, the claimant is deemed disabled without considering his age, education, or work experience. If the impairment is not on the list, the Commissioner, in the fourth step, reviews the claimant's RFC and the demands of his past work. If he is still able to do his past work, he is not disabled. If he cannot perform his past work, the Commissioner moves to the fifth and final step of evaluating the claimant's ability, given his residual capacities, age, education, and work experience, to do other work. If he cannot do other work, he will be found disabled. The claimant bears the burden of proof at the first four steps of the sequential analysis. Once he has shown that he is unable to perform his previous work, the burden shifts to the Commissioner to show that there is other substantial gainful employment available that the claimant is not only physically able to perform, but also, taking into account his exertional and non-exertional limitations, able to maintain for a significant period of time. If the Commissioner adequately points to potential alternative employment, the burden shifts back to the claimant to prove that he is unable to perform the alternative work.
20 C.F.R. §§ 404.1520 and 416.920.
Id.
Id.
Id.
20 C.F.R. §§ 404.1520 and 416.920.
Id.
Id.
Id.
Id.
Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995).
Watson v. Barnhart, 288 F.3d 212, 217 (5th Cir. 2002).
Anderson v. Sullivan, 887 F.2d 630, 632-33 (5th Cir. 1989).
In the instant case, the ALJ reached her decision at step four of the evaluation process. At step one, the ALJ concluded that plaintiff had not engaged in substantial gainful employment since the alleged onset date of her disability. At step two, ALJ McCoy concluded that plaintiff had the medically determinable severe impairments of cervical and lumbar spine degenerative disc disease. ALJ McCoy found that plaintiff had no other severe impairments. At step three, the ALJ determined that plaintiff's impairments did not meet or medically equal a listed impairment. At step four, the ALJ found that plaintiff retained the residual functional capacity "to lift/carry 20 pounds occasionally, 10 pounds frequently, stand/walk 6 hours of an 8-hour day, and sit for 8 hours of an 8-hour day." The ALJ further found that "the claimant can occasionally bend, stoop, kneel, crouch, crawl, climb ladders, ropes, and scaffolds." The ALJ concluded that plaintiff was able to perform her past relevant work as an operations clerk and secretary. Based on the foregoing, ALJ McCoy concluded that plaintiff was not disabled. B. Is the ALJ's August 13, 2004 Decision Supported by Substantial Evidence?
Transcript at 15, 19.
Transcript at 16, 19.
Transcript at 16.
Transcript at 16, 20.
Transcript at 20.
Transcript at 20.
Transcript at 19, 20.
Transcript at 19, 20.
Plaintiff challenges the ALJ's decision on two grounds. Plaintiff argues that the ALJ's determinations that plaintiff was able to perform light work and that she was able to perform her past relevant work are not supported by substantial evidence. For the reasons set forth below, I recommend that the court find plaintiff's arguments are without merit, that they be rejected, and that plaintiff's request for relief be DENIED. 1. Is the ALJ's determination that plaintiff was able to perform light work supported by substantial evidence?
In her first point of error, plaintiff argues that the ALJ erroneously concluded that plaintiff was able to perform light work. Specifically, plaintiff contends that the ALJ erred by not properly considering plaintiff's pain. A review of the record, however, indicates that the ALJ thoroughly considered the objective evidence of plaintiff's impairments as well as plaintiff's subjective complaints of pain in making her determination that plaintiff was not disabled.
First, the ALJ's written decision includes a detailed review of the objective medical evidence of plaintiff's impairments and resultant pain. Objective medical observations that indicate the existence of severe pain include "limitations in the range of motion, muscular atrophy, weight loss, or impairment of general nutrition." In the instant case, the ALJ found that the physicians' reports consistently lacked the objective factors indicative of the existence of disabling pain. As the ALJ noted in her decision:
Transcript at 14-20.
Hollis v. Bowen, 837 F.2d 1378, 1384 (5th Cir. 1988) (citing Adams v. Bowen, 833 F.2d 509, 512 (5th Cir. 1987)).
See Transcript at 17.
physical examination of the claimant has failed to reveal significant and persistent motor, sensory, and/or reflex functioning deficits that would substantiate the presence of radiculopathic symptoms such as are alleged by the claimant. A May 7, 2002 examination showed the claimant's neurovascular status remained intact and her gait was normal. An August 22, 2002 physical examination showed the claimant had mild lumbar tenderness to palpatation [sic] but that straight leg raising testing was negative. A June 21, 2004 examination by Rafael Parra, M.D., shows that claimant's motor, sensory, and reflex functioning remained intact even if straight leg testing was questionably positive.
Transcript at 17 (citations to record omitted).
Thus, the objective medical evidence does not support plaintiff's characterization of her impairments.
In addition to reviewing the objective medical evidence, the ALJ is also required to consider a claimant's subjective complaints of pain when determining disability. Whether pain is disabling is a matter within the discretion of the ALJ, and this determination will be entitled to considerable deference. Further, in order for pain to be disabling in nature, it "must be constant, unremitting, and wholly unresponsive to therapeutic treatment."
Wren v. Sullivan, 925 F.2d 123, 128 (5th Cir. 1991).
Id.
Id. at 128-29 (citing Haywood v. Sullivan, 888 F.2d 1463, 1470 (5th Cir. 1989)).
Here, the ALJ considered plaintiff's subjective complaints of pain, but ultimately rejected them as lacking credibility. In her decision, the ALJ reviewed plaintiff's treatment history, noting the general success of plaintiff's medication therapy at reducing her pain. The ALJ concluded that "claimant's testimony that her pain medicines have been completely ineffective at reducing her pain symptoms is not entirely accurate." The ALJ also found that plaintiff's daily activities undermined her subjective complaints of disabling pain. At the August 4, 2004 hearing, plaintiff acknowledged that she made simple foods for herself, bathed and groomed herself, drove a motor vehicle two to three times a week for an average weekly distance of approximately one hundred miles and attended church every Sunday. Accordingly, ALJ McCoy found that plaintiff's subjective complaints of pain were "not entirely credible." A review of the record therefore contradicts plaintiff's assertion that the ALJ did not consider plaintiff's pain in determining disability. To the contrary, a review of the record establishes that the ALJ considered the objective and subjective evidence of pain in finding that plaintiff was not disabled. In this regard, substantial evidence clearly supports the Commissioner's decision.
Transcript at 17. ALJ McCoy acknowledged in her decision that "consideration must be given to the claimant's subjective allegations in accordance with 20 CFR 404.1529 and 416.929 as well as Social Security Ruling 96-7p." Id.
Transcript at 17-18.
Transcript at 17.
See Transcript at 18, 26-49.
Transcript at 18.
Plaintiff also argues that the ALJ erred in rejecting the March 14, 2003 opinion of a treating physician (Dr. Fernando T. Avila) in which Dr. Avila concluded that "[m]ost likely, the patient is permanently and completely disabled from work." Plaintiff contends that the ALJ discounted this report "without explaining which particular evidence discredits his findings and opinion."
Transcript at 146, 158.
Docket Entry 15.
Plaintiff's contention is incorrect. In the instant case, ALJ McCoy specifically explained her rationale for rejecting the Dr. Avila's conclusion concerning claimant's "disability."
First it is a vocational opinion as to the ultimate issue at hand, disability, and does not constitute a medical opinion as to the claimant's specific impairment-related symptoms and attendant functional limitations. Such an opinion is never entitled to controlling weight. More importantly, the evidence as a whole does not support the doctor's comments. Dr. Avila's own treatment records reflect that the claimant does not have motor, sensory, or reflex deficits. In fact, as noted by [medical expert] Dr. King in his testimony, virtually all of the claimant's physical examination [sic] have shown she retains normal neurological functioning as evidenced by intact motor, sensory, and reflex functioning. Finally, Dr. Avila's opinions are inconsistent with the opinions of Dr. King and the State agency medical consultants, who opined that the claimant is limited to light work. Thus, the doctor's opinions intrude upon the ultimate issue of disability reserved to the Social Security Administration, are not supported [by] the clinical findings, including [Dr. Avila's] own examination findings, and are contrary to other substantial evidence in the record.
Transcript at 19.
Plaintiff's assertion that ALJ McCoy did not explain her reasons for discrediting Dr. Avila's March 13, 2003 opinion is therefore contradicted by ALJ's written decision.
To the extent that plaintiff argues that it was error for the ALJ to not accord substantial weight to Dr. Avila's report, this contention is also without merit. "[T]he ALJ has sole responsibility for determining a claimant's disability status [and] is free to reject the opinion of any physician when the evidence supports a contrary conclusion." Accordingly, the ALJ may afford less weight to the opinion of a treating physician when there is good cause shown to the contrary, or where the treating physician's opinion is not supported by medically acceptable clinical laboratory diagnostic techniques, or is otherwise unsupported by the evidence. Here, the ALJ properly considered and discussed the various treating and examining physician reports and the totality of the evidence in ultimately rejecting Dr. Avila's opinion. This was a proper exercise of the ALJ's discretion and does not constitute error.
Newton v. Apfel, 209 F.3d 448, 455 (5th Cir. 2000) (quoting Paul v. Shalala, 29 F.3d 208, 211 (5th Cir. 1994)).
Scott v. Heckler, 770 F.2d 482, 485 (5th Cir. 1985) (internal citations and quotations omitted).
See Martinez v. Chater, 64 F.3d 172, 176 (5th Cir. 1995) (holding that opinion of treating physician is not entitled to controlling weight where the opinion lacks a medical explanation and is inconsistent with other opinions based on clinical test results).
Lastly, plaintiff argues that the ALJ erred in not seeking additional information from Dr. Avila. The regulations require the SSA to re-contact a medical source "[w]hen the evidence we receive from your treating physician or psychologist or other medical source is inadequate for us to determine whether you are disabled. . . ." Here, the ALJ had an adequately developed record before her from which to determine whether plaintiff was disabled. Plaintiff has not shown that the failure to re-contact Dr. Avila prejudiced plaintiff. The failure to contact Dr. Avila does not warrant reversal.
20 C.F.R. §§ 404.1512(e) and 416.912(e).
See Carey v. Apfel, 230 F.3d 131, 142 (5th Cir. 2000) (holding that the decision of the ALJ will not be reversed for failure to "fully and fairly develop the record unless the claimant shows that he or she was prejudiced by the ALJ's failure."). See also Newton v. Apfel, 209 F.3d 448, 453 (5th Cir. 2000) (holding that "if the ALJ determines that the treating physician's records are inconclusive or otherwise inadequate to receive controlling weight, absent other medical opinion evidence based on personal examination or treatment of the claimant, the ALJ must seek clarification or additional evidence from the treating physician in accordance with 20 C.F.R. § 404.1512(e).") (emphasis added).
2. Is the ALJ's determination that plaintiff was able to perform her past work supported by substantial evidence?
In her second point of error, plaintiff asserts that ALJ McCoy erroneously concluded that plaintiff was able to perform her past work. Plaintiff argues that the ALJ's determination is not supported by substantial evidence because she did not consider the combined effect of plaintiff's impairments. Defendant responds, and this court agrees, that substantial evidence supports the ALJ's decision.
Contrary to plaintiff's assertion, the ALJ considered all of plaintiff's impairments in determining that plaintiff was not under a disability. The ALJ thoroughly reviewed the objective medical evidence of plaintiff's exertional and non-exertional impairments, as well as plaintiff's subjective complaints in determining that plaintiff was not disabled. The ALJ found that plaintiff had the medically severe impairments of cervical and lumbar spine degenerative disc disease. The ALJ additionally found that plaintiff experienced some mild restriction of activities of daily living and mild difficulties in maintaining social functioning due to depression. After determining that plaintiff's impairments did not meet or medically equal a Listing, the ALJ proceeded to assess whether plaintiff retained the residual functional capacity to perform her past relevant work, and found that "the record as a whole does not support a conclusion that the claimant is disabled from all work." Relying on the testimony of the vocational expert, plaintiff's medical records and treatment history, as well as the opinion of the State agency medical consultants, the ALJ concluded that plaintiff was able to return to her past relevant work. The record clearly indicates that the ALJ considered all of plaintiff's impairments in her decision. Further, plaintiff has not identified any additional alleged impairments that she contends the ALJ was under a duty to consider. Thus, the ALJ determined that while plaintiff may be limited by her pain and depression, she was not constrained from performing her past relevant work. This court is not to substitute its judgment for that of the ALJ. Since the ALJ's findings were supported by substantial evidence in the record, they are conclusive and must be affirmed.
Transcript at 16.
Transcript at 16-17.
Transcript at 17.
Transcript at 19.
Martinez v. Chater, 64 F.3d 172, 173 (5th Cir. 1995).
Plaintiff additionally argues that the ALJ's decision that plaintiff was able to perform sustained work on a regular and continuing basis is not supported by substantial evidence. Social Security Ruling 96-8p defines a "regular and continuing basis" as "8 hours a day, for 5 days a week, or an equivalent work schedule." Plaintiff offers no evidence or further argument in support of this allegation other than to conclude that "[w]hether Ms. Medina can sustain employment as defined by SSR 96-8p is very questionable and definitively not analyzed and answered by the ALJ. . . ."
Social Security Ruling: Policy Interpretation Ruling: Titles II and XVI: Assessing Residual Functional Capacity in Initial Claims, SSR 96-8p (1996).
Docket Entry 13.
Once again, however, I find that plaintiff's arguments are contradicted by the record and misrepresent the obligations of the ALJ. In every case, the ALJ must determine the claimant's residual functional capacity or RFC.
Ordinarily, RFC is the individual's maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis, and the RFC assessment must include a discussion of the individual's abilities on that basis. A `regular and continuing basis' means 8 hours a day, for 5 days a week, or an equivalent work schedule.
Social Security Rule, supra note 102.
In certain situations, however, the ALJ is not only required to articulate her findings as to a claimant's ability to work on a "sustained" basis — i.e., eight hours a day, five days a week — she is also required to determine the claimant's ability to maintain employment over time. When a plaintiff's ability to maintain employment is questioned during the administrative hearing process, the ALJ is required to engage in an analysis of the same. The ALJ is not obligated to make
See, e.g. Watson v. Barnhart, 288 F.3d 212 (5th Cir. 2002); Wingo v. Bowen, 852 F.2d 827 (5th Cir. 1988).
separate findings on `obtaining' and `maintaining' a job in every case, even cases in which the applicant does not suggest that there is any difference between the issue of his ability to work and his ability to sustain work.
Frank v. Barnhart, 326 F.3d 618, 621 (5th Cir. 2003).
Rather, the ALJ is required to assess the plaintiff's ability to maintain employment only when the plaintiff's
intermittently recurring symptoms . . . [are] of sufficient frequency or severity to prevent the claimant from holding a job for a significant period of time.
Id. , 326 F.3d, at 619. See also Dunbar v. Barnhart, 330 F.3d 670, 671 (5th Cir. 2003).
In this case, plaintiff has failed to identify specific impairments which, either singly or in combination, had intermittently recurring symptoms of sufficient frequency or severity to prevent her from holding a job. In determining plaintiff's residual functional capacity in this case, ALJ McCoy noted that her "conclusions as to the claimant's residual functional capacity account for the effect of her impairments consistent with the clinical findings and her treatment history, the credible testimony of Dr. King, and the opinions of the State agency medical consultants that the claimant is capable of light work." Plaintiff has failed to point to any evidence that her impairments impair her ability to work on a regular and consistent basis. Substantial evidence supports the ALJ's determination that plaintiff is able to return to her past relevant work. Plaintiff's argument is without merit.
Transcript at 19 (citations to record omitted).
Plaintiff also argues that the ALJ in this case had a duty to more fully develop the record concerning the physical and mental demands of plaintiff's past employment. Plaintiff relies upon the decision of Gullett v. Chater. Gullett, however, involved an ALJ's heightened duty to develop the record where a claimant appears unrepresented by counsel. In the instant case, plaintiff was represented by counsel at the administrative hearing. Further, the record indicates that the attorney for plaintiff did not question plaintiff at the hearing concerning the demands of her past employment, and declined to question the testifying vocational expert when afforded the opportunity. As already noted, the failure of the ALJ to fully and fairly develop the record will only require reversal where it works a prejudice against plaintiff. Here, plaintiff has shown no such prejudice. To the extent that plaintiff argues that the ALJ was under a duty to more fully develop the record, plaintiff's contention is without merit.
973 F.Supp. 614 (E.D. Tex. 1997).
Id. at 622 (holding that "the ALJ has a heightened duty in cases where a claimant is unrepresented by counsel `to develop the facts fully and fairly and to probe conscientiously for all of the relevant information.'") (quoting Ware v. Schweiker, 651 F.2d 408, 414 (5th Cir. 1981), cert. denied, 455 U.S. 912 (1982)).
Transcript at 24.
Transcript at 40-48.
Transcript at 63.
See Carey v. Apfel, 230 F.3d 131, 142 (5th Cir. 2000).
Lastly, plaintiff argues that ALJ McCoy did not make required factual findings in support of her step four conclusion that plaintiff retained the RFC to return to her past relevant work. While it is the claimant's burden to establish that she cannot perform her past relevant work, Social Security Ruling 82-62 requires that where the ALJ has determined that the claimant retains the capacity to perform a past relevant job, her decision must contain the following specific findings:
See Muse v. Sullivan, 925 F.2d 785, 789 (5th Cir. 1991).
1. A finding of fact as to the individual's RFC.
2. A finding of fact as to the physical and mental demands of the past job/occupation.
3. A finding of fact that the individual's RFC would permit a return to his or her past job or occupation.
Social Security Ruling: Program Policy Statement: Titles II and XVI: A Disability Claimant's Capacity To Do Past Relevant Work, In General, SSR 82-62 (1980).
Plaintiff is correct when she argues that ALJ McCoy did not make the required finding with respect to the mental demands of plaintiff's past relevant work. In her decision, the ALJ noted only the physical demands of plaintiff's former jobs as a secretary and an operations clerk, and at no time addressed the mental demands of these occupations. Ordinarily, this omission would require that the case be remanded to the ALJ in order to establish the mental demands of plaintiff's prior occupations and then to determine whether plaintiff can perform these jobs in light of her mental impairments. In the instant case, however, the ALJ's failure to discuss the mental demands of plaintiff's past work did not prejudice plaintiff, and does not require reversal.
See Transcript at 19.
In her opinion, ALJ McCoy concluded that plaintiff experienced the following affective disorder criteria under section 12.04B of the Listing of Impairments: "mild restriction of activities of daily living; mild difficulties in maintaining social functioning; no difficulties in maintaining concentration, persistence, or pace; and, no episodes of decompensation. . . ." The ALJ further noted that
Transcript at 16.
there is no evidence that the claimant has significant psychological symptoms or significant limitations on her mental ability to perform basic work activities. The claimant is not under the care of a psychiatrist or a psychologist and has not required inpatient psychiatric treatment since the alleged onset date. It appears that any limitations she has on her daily activities are due to her physical condition. She reported routine social activity in the form of regular church attendance. There is no evidence that her concentration and attention are impaired. To the contrary, her daily activities suggest her concentration and memory are unimpaired.
Transcript at 16.
The ALJ therefore concluded that plaintiff's alleged mental impairments did not in any way restrict her ability to work. Accordingly, ALJ McCoy assessed plaintiff's RFC based on physical limitations, and found that plaintiff could return to her past relevant work as a secretary and operations clerk. Because the ALJ's determination that plaintiff's mental impairments did not limit her ability to work is supported by substantial evidence, I find that the ALJ's failure to discuss the mental demands of plaintiff's past relevant work did not prejudice plaintiff and does not require reversal in this case.
Finally, to the extent that plaintiff argues that the ALJ failed to sufficiently discuss the physical demands of plaintiff's past relevant work, this argument is also without merit. Social Security Ruling 82-62 provides in pertinent part that "[t]he claimant is the primary source for vocational documentation, and statements by the claimant regarding past work are generally sufficient for determining the skill level; exertional demands and nonexertional demands of such work." In the instant case, the ALJ relied on plaintiff's testimony at the administrative hearing as well as the testimony of the vocational expert in determining that plaintiff was able to perform the physical demands of her past relevant work. Furthermore, plaintiff's work activity and work history reports submitted in support of her applications for DIB and SSI fully corroborate the ALJ's determination that plaintiff's assessed RFC allowed her to return to her past relevant work. The ALJ's determination is therefore supported by substantial evidence and will not be disturbed.
SSR 82-62.
Transcript at 107, 123-26. See Villa v. Sullivan, 895 F.2d 1019, 1023 (5th Cir. 1990) (holding that ALJ may determine the exertional requirements of claimant's past relevant work based on claimant's description of prior work in vocational and disability reports submitted in support of claim for benefits).
VI. Recommendation
Based on the foregoing, I recommend that plaintiff's request for relief be DENIED, her complaint (docket entry 3) DISMISSED and the decision of the Commissioner AFFIRMED.