Opinion
CAUSE NO. SA-02-CA-1126-EP
June 10, 2003
REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
TO: United States District Judge
Pursuant to the informal referral in the above-styled and numbered cause of action to the undersigned United States Magistrate Judge and consistent with the authority vested in United States Magistrate Judges under the provisions of 28 U.S.C. § 636(b)(1)(B) and rule l(d) and (h) of the Local Rules for the Assignment of Duties to United States Magistrate Judges in the Western District of Texas, effective January 1, 1994, the following report is submitted for your review and consideration.
I. JURISDICTION
The Court has jurisdiction under 42 U.S.C. § 405(g) and § 1383(c)(3).
II. ADMINISTRATIVE PROCEEDINGS
This is an action to review a decision of the Commissioner of Health and Human Services under § 205(g) of the Social Security Act, 42 U.S.C. § 405(g). Plaintiff, Gabriel Moreno, instituted this action pursuant to 42 U.S.C. § 405(g) seeking review of the determination of Jo Anne B. Barnhart, the Commissioner of the Social Security Administration, that plaintiff is not disabled, and, therefore, not entitled to receive supplemental security income benefits. Plaintiff filed an application for benefits on or about November 20, 1998, alleging disability since that date. The Social Security Administration denied the application both initially and upon reconsideration. On October 31, 2000, an Administrative Law Judge ("ALT") held a hearing, at which plaintiff was represented by a non-attorney. On February 8, 2001, the ALJ determined that plaintiff was not disabled. On August 21, 2002, the Appeals Council denied plaintiffs request for review, making the determination of the ALJ the final decision of the Commissioner. Plaintiff now appeals that determination,
Transcript at 15, 60-62. Plaintiffs application for benefits states that the onset date was February 1, 1984. Id. However, during the hearing, the ALJ informed plaintiff the relevant time period under consideration began with the date of his application, November 20, 1998, and plaintiff agreed. Id. at 178; see also id. at 15.
Id. at 15, 31-32.
Id. at 15, 173-207.
Id. at 15-21.
Id. at 7-8.
III. ISSUES
1. Whether substantial evidence supports the Administrative Law Judge's decision that plaintiff was not disabled under the Social Security Act. 2. Whether the decision comports with relevant legal standards.
IV. STANDARD OF REVIEW
In reviewing the Commissioner's decision denying disability or supplemental security income benefits, the Court is limited to a determination of whether the decision is supported by substantial evidence 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. It 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.If the Commissioner's findings are supported by substantial evidence, they are conclusive and must be affirmed. "The court does not re-weigh the evidence in the record, try the issues de novo, or substitute its judgment for the Commissioner's, even if the evidence weighs against the Commissioner's decision." Conflicts in the evidence are for the Commissioner to resolve. Four elements of proof are weighed 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 v. Chater 64 F.3d 172, 173 (5th Cir. 1995),
Carey v. Apfel, 230 F.3d 131, 135 (5th Cir. 2000).
Id.
Martinez. 64 F.3d at 174.
V. ALPS FINDINGS AND PLAINTIFFS CONTENTIONS
At the time of the decision, plaintiff was a fifty-five year-old male who attained a high school equivalency diploma. According to the ALJ, plaintiff alleged disability beginning on November 20, 1998, due to rheumatoid arthritis; back pain; headaches; and symptoms of depression including suicidal ideation, crying spells, sleep disturbance, concentration problems, and appetite disturbance.To determine whether plaintiff met the criteria for disability, the ALJ considered, at the first step, that plaintiff had not engaged in substantial gainful activity since the alleged onset date. At the second step, the ALJ found that plaintiff had "degenerative disc disease of the spine and a depressive disorder, impairments that are severe withing the meaning of the Regulations. . . ." At the third level of the evaluation process, the ALJ found that plaintiffs severe impairments in combination did not meet or equal a listed impairment. In assessing plaintiffs depressive symptoms, the ALJ found based on parts "A" and "B" of the psychiatric review technique that plaintiff had a "depressive disorder evidenced by a depressive reaction, and has no restrictions of activities of daily living, `mild' difficulties maintaining social functioning, `moderate' difficulties in maintaining concentration, persistence, and pace, and has no episodes of decompensation." The ALJ found no evidence of any part "C" criteria.
Id.
Id. at 17.
Id.
Id.
Id.
To make these determinations, the ALJ considered the medical evidence which includes February 1984 progress notes that show plaintiff was in an motor vehicle accident and was treated for a left headache as well as neck, left shoulder, bilateral wrist, and right knee pain. On February 2, 1984, an examiner noted plaintiff had no broken bones and reportedly was doing better. Medical records reflect that in 1984, plaintiff complained of anxiety and poor concentration. X-rays taken in 1984 showed degenerative changes in plaintiffs sacroiliac joints, wrists and knees within normal limits, and no acute skeletal injury. Plaintiff began complaining of back pain in 1985. Plaintiff was diagnosed with muscle strain and spasms in 1986 and x-rays revealed slight spondylosis of the thoracic spine.
Id. at 16.
Id.
Id.
Id. at 16 and 153.
Id. at 16 and 169.
Id. at 16, 154, 168.
The ALJ considered medical records from February 11, 1999. showing that plaintiff complained of neck, back, and joint pain in all joints; inability to stand on the left heel; and stiffness in his left hand. A report from Dr. J. L. Gilchrist, M. D., indicated that plaintiff could lift and carry light objects with no difficulty and had an "o.k." ability to sit; good grip in both hands; and no reflex, sensory, or motor abnormalities. The ALJ noted that parts of Dr. Gilchrist's report were illegible. The ALJ noted June 22, 1999 reports which showed negative straight leg raises, some tenderness to palpitation over the lumbar spin 2, good strength in feet and legs, and a diagnosis of lumbago and cervicalgia. On November 18, 1999, plaintiff was diagnosed with generalized arthritis, and x-rays showed a normal lumbar spine. On December 9, 1999, plaintiffs bilateral straight leg raises were normal, and he had a full range of motion in the lumbar spine. The ALJ found that, in 1999 and 2000, plaintiff was diagnosed with spondyloarthropathy and prolonged depressive reaction. Medical reports dated September 28, 2000, from Dr. Robert Brown, M.D., indicated that plaintiff was taking Celebrex for the arthritis as well as Wellbutrin and amitriptyline for depression. Plaintiff reported good results with the medications. On examination, Dr. Brown found no heat, swelling, or redness in any joints, and x-rays show mild degenerative changes, Dr. Brown questioned the diagnosis of spondyloarthropathy but opined that plaintiff was doing well with both impairments.
Id. at 16-17.
Id at 17.
Id.
Id
Id. at 17 and 147.
Id. at 17 and 146.
Id. at 17.
Id. at 17 and 150.
Id.
Id.
Id.
Having determined that plaintiff had severe impairments that did not meet or medically equal a listed impairment, the ALJ proceeded to the fourth step and considered whether plaintiff was able to do past relevant work or other work available in the national economy. The ALJ noted that to make this determination, "full consideration must be given to all of the evidence presented relating to [plaintiffs] subjective complaints[.]" In identifying the parameters of such a determination, the ALJ cited 20 C.F.R. § 416.927 and 416.925 as well as SSRs 96-2p, 96-6p, and 96-7p,
Id.
Id. at 18.
The ALJ first noted plaintiffs testimony that he is the primary care provided for his mother, and has been for many years. As such, the ALJ found that plaintiffs recent work history would not add to or detract from the credibility assessment. The ALJ considered plaintiffs allegation of disability due to pain and plaintiffs testimony that he can stand for about ten minutes, sit for fifteen minutes, and walk about one half of a block before he is limited by back pain. Plaintiff also testified that he can lift one pound and cannot bend or climb due to pain. The ALJ acknowledged that plaintiff had alleged mental symptoms and found that plaintiff had medically determinable impairments that could reasonably cause the physical and mental symptoms alleged. But, the ALJ noted that no physicians had imposed the level of restrictions plaintiff claimed and that plaintiffs allegations of disabling pain were undermined by Dr. Brown's opinion that plaintiff was doing well "with both of his impairments." The ALJ considered plaintiff testimony about limitations to his daily activities due to pain and depression and found the testimony was "inconsistent and significantly out of proportion with the medical evidence." The ALJ explained that plaintiff testified he did no yard work, housework, or shopping and that he watches television most of the time and attends church on a weekly basis. But, even though plaintiffs siblings apparently do the housework and cooking, plaintiff claimed he was a care provider for his mother. The ALJ found that such care requiring plaintiff to dispense medication, check on his mother required plaintiff to perform some tasks which necessitated movement, attention to detail, and concentration. The ALJ explained that no physician had "ever imposed this degree of limitation on [plaintiff] due to his impairments." The ALJ found that plaintiff had been treated with numerous prescription medications for depression and pain, indicating some degree of impairment.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
Id
In that light, the ALJ found from the evidence that plaintiffs subjective allegations of disabling symptoms were "not credible to the extent alleged." The ALJ found that plaintiff had the residual functional capacity to lift fifty pounds occasionally and twenty-five pounds frequently; stand and/or walk for six hours to eight hours out of an eight-hour work day; and sit for two hours out of an eight-hour work day. Because of plaintiffs depression, the ALJ limited plaintiff to simple, repetitive, routine work and to working by himself "without the necessity of working as part of a team, or interacting with the public." Based on his residual functional capacity and plaintiffs lack of past relevant work, the ALJ concluded that plaintiff would not be able to perform past relevant work.
Id. at 19.
Id.
Id.
Noting the burden of proof had shifted to the Commissioner, the ALJ then considered at step five whether plaintiff was capable of performing other work avail able in the national economy. The ALJ considered first the Medical Vocational Guidelines, determined that plaintiff, as an individual approaching advanced age, retained the residual functional capacity to perform a significant range of medium work, but ultimately relied on the testimony of a vocational expert because plaintiff was limited to less than the full range of medium work due to exertional and/or non-exertional limitations. Given a hypothetical person of plaintiff's age, education, work experience, and residual functional capacity, the vocational expert testified such a person would be capable of adjusting to other work and could work as: an assembler, sorter, hand packager for which there are 35,968 jobs in Texas and 486,995 nationally; a laundry worker for which there are 3,984 jobs in Texas and 138,885 nationally; a private housekeeper for which there are 14,554 jobs in Texas and 250,886 nationally; and a miscellaneous food preparer for which there are 15,932 jobs in Texas and 231,935 nationally. Based on this testimony, the ALJ concluded that plaintiff was "capable of making a successful adjustment to work that exists in significant numbers in the national economy. Accordingly, the ALJ found that plaintiff was not disabled for the purpose of receiving Social Security benefits.
Id.
Id.
Id. at 19, 200-06.
Id. at 19.
Id.
On March 12, 2003, plaintiff filed a brief asking the Court to reverse the decision of the Commissioner and award benefits or remand for a new hearing. Plaintiff argues that the ALJ's decision "should be remanded so that the Commissioner may consider new and material evidence which formed the basis of the Social Security Administration's approval of plaintiff's SSI application which was filed in June 2002." In addition, plaintiff argues that the ALJ erred and/or that the ALJ's decision is not supported by substantial evidence on the following grounds: (1) the ALJ failed to fully and fairly develop the record when he did not order a psychological or psychiatric consultative examination; (2) the ALJ erroneously and incorrectly assessed plaintiffs residual functional capacity to perform a significant range of medium work; and (3) the ALJ failed to comply with the requirements of Watson v. Barnhart and failed to make a finding of whether plaintiff could maintain employment for a significant period of time. On May 13, 2003, defendant filed a brief in support of the Commissioner's decision which denies plaintiffs allegations and asserts the ALJ's decision is supported by substantial evidence and correctly applied the relevant legal standards. On May 22, 2003, plaintiff filed a reply which re-urges the previous arguments, and acknowledges the Fifth Circuit's recent holdings in Frank v. Barnhart as well as other cases, regarding Watson. After a thorough review of the parties' arguments and the administrative record, the Court recommends the Commissioner's decision be affirmed because the ALJ's decision denying plaintiff supplemental security income benefits is supported by substantial evidence and comports with the relevant legal standards.
Docket no. 10 at 11.
Id. at 1 and 5.
288 F.3d 212 (5th Cir. 2002).
Docket no. 10 at 6-13.
Docket no. 13.
326 F.3d 618, 619 (5th Cir. 2003).
Docket no. 13.
VI. ARGUMENTS AND CONCLUSIONS OF LAW
In this section the Court will discuss in greater detail the applicable legal standards before applying those standards to plaintiffs specific claims as raised in plaintiffs brief to his motion for summary judgment.
Every individual who is insured for disability insurance benefits, has not attained retirement age, has filed an application for benefits, and is under a disability is entitled to receive disability insurance benefits. Each aged, blind or disabled individual who meets certain income and resources limitations is entitled to receive supplemental security income. 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 12 months. A person shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage 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 immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. 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. 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, and 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, and work experience. If the impairment is not on the list, the Commissioner, in the fourth step, reviews the claimant's residual functional capacity and the demands of his past work. If he can still do this kind of 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 and his age, education, and work experience, to do other work. If he cannot do other work, he will be found to be 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 claimant is capable of performing. 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. Plaintiffs claims in appealing the ALJ's decision;
1. The ALJ's decision should be remanded so that the Commissioner can consider new and material evidence
2. The ALJ failed to fully and fairly develop the record by failing to order a psychological or psychiatric consultative examination
20 C.F.R. § 404.1520.
Leggett v. Chater. 67 F.3d 558, 564 (5th Cir. 1995).
Id. at 564.
Anderson v. Sullivan. 887 F.2d 630, 632 (5th Cir. 1989).
Id. at 632-633.
Plaintiff argues that the ALJ failed to fully and fairly develop the record with regard to his mental impairments, Specifically, plaintiff argues that medical evidence received at or near the time of the hearing should have indicated to the ALJ the necessity for further development of evidence regarding plaintiff's depression. Plaintiff contends that findings in a psychological consulting examination report obtained to support a recent application for benefits "certainly emphasize the necessity that existed for a psychiatric or psychological examination." In that regard, plaintiff urges the Court to remand "so that the Commissioner may consider new and material evidence" that led to the approval of plaintiff's recent application. Plaintiffs attachments to his brief include reports of a November 19, 2002 psychiatric evaluation and a September 25, 2002 examination as well as a record showing plaintiff was found eligible for supplemental security income for a disability beginning in June 2002.
Docket no. 10 at 6.
Id.
Id. at 8.
Id. at 5.
Id. exhibits A and B.
Id. exhibit C
The determination of whether to obtain a consultative examination is within the discretion of the ALJ. The regulations explain that a consultative examination may be obtained when the evidence as whole is insufficient to support a disability determination. A consultative examination should be ordered when it is "necessary" to enable the ALJ to make a disability determination. The ALJ's discretionary decision whether to order a consultative examination becomes "necessary" only when the plaintiff presents evidence sufficient to raise a suspicion concerning a non-exertional impairment. When there is sufficient evidence for the ALJ to decide that a claimant is not disabled, no additional examination is warranted.
Brock v. Chater. 84 F.3d 726, 728 (5th Cir. 1996).
Pierre v. Sullivan. 884 F.2d 799, 802 (5th Cir. 1989);Jones v. Bowen. 829 F.2d 524, 526 (5th Cir. 1987).
See Anderson v. Sullivan. 887 F.2d 630, 634 (5th Cir. 1989).
The ALJ must develop the facts fully and fairly when considering a claim for disability benefits. If the ALJ does not satisfy this obligation, the decision is not substantially supported. The ALJ should have medical information regarding the types of work the claimant is capable of performing. When such information is not available in the record, the ALJ should seek additional information. The ALJ's decision should be reversed, however, only if the applicant shows prejudice from ALJ's failure to request the addition information. "To establish prejudice, a claimant must demonstrate that he or she `could and would have adduced evidence that might have altered the result'" "New evidence may be grounds for remand if it is material; this materiality inquiry requires determining whether the evidence relates to the time period for which the disability benefits were denied, and whether there is a reasonable probability that the new evidence would change the outcome of the Commissioner's decision."
Newton. 209 F.3d at 458; Ripley, 67 F.3d at 557; Kane v. Heckler. 731 F.2d 1216, 1219 (5th Cir. 1984).
See cases cited in note above.
Ripley. 67 F.3d at 557.
Id.
Carey v. Apfel, 230 F.3d 131, 145 (5th Cir. 2000);Newton, 209 F.3d at 448; Ripley. 67 F.3d at 557.
Carey. 230 F.3d at 145.
Castillo v. Barnhart. 325 F.3d 550. 551-52 (2003).
Plaintiff argues that a July 26, 2000 report from Dr. Brett Bolts, a consulting physician, should have alerted the ALJ to the need for a consultative psychological evaluation. Dr. Bolte evaluated plaintiffs physical capacity for the Texas Rehabilitation Commission but observed that plaintiff appeared "very depressed looking" and opined he was "likely depressed." Although Dr. Bolte did not have plaintiffs significant medical records and did not further assess plaintiffs mental state, his observation is in accord with other medical evidence.
Transcript at 109-19
Docket no. 10 at 6; docket no. 14 at 2-3.
Transcript at 110.
Id.
We begin with a brief discussion of the evidence in the record as to plaintiffs depressive disorder and the ALJ's consideration of it. On January 18, 1999, when plaintiff applied for benefits in the instant case, plaintiff denied any significant mental or emotional problems. Plaintiff first complained of depression to Dr. Donald Koester, M.D., of the Family Practice Center on January 10, 2000. Dr. Koester reported that plaintiff was alert and somewhat sad, had a flat affect with appropriate mood, but was in no acute distress. The doctor diagnosed plaintiff with "major affective disorder: meets the definition for depression" and prescribed Paxil. On January 24, 2000, Dr. J. Daly Dietrick, M.D., changed the prescription to Serzone when plaintiff complained that Paxil kept him awake and made him feel funny. Dr. Dietrick diagnosed plaintiff with "prolong depressive react." On February 7, 2000, plaintiff reported to Dr. Dietrick that his depression was the same and that he had no energy; was not sleeping; felt sad; and had no suicidal ideas. Because Serzone caused plaintiff to lose his appetite and weight, the doctor prescribed Wellbutrin. The doctor noted that if treatment with the new medication proved unsuccessful, counseling might be recommended. On February 22, 2000, Dr. Christopher Teague, M.D., reported that although plaintiff said "mentally he felt better" and Wellbutrin was helping his mental condition, plaintiff had stopped taking the medication because it upset his stomach. The doctor stated that plaintiff refused counseling. Plaintiff was told to try taking Wellbutrin at different times of the day, such as before and/or after meals, and Axid was prescribed as a supplement to be taken before the Wellbutrin, On July 20, 2000, Dr. John Shelton, M.D., reported that plaintiff was tolerating and improving with the Wellbutrin. On September 28, 2000, Dr. Brown reported that plaintiff claimed "he is doing very well with Wellbutrin and amitriptyline." In sum, near the time of the hearing and after Dr. Bolte's observation, the medical evidence reflected that plaintiffs depression was improving with medication.
Transcript at 83.
Id. at 130 ("The only new complaint today is depression. He reports that he has felt very low in spirits for years. This is probably related to his taking care of his disabled mother who requires fairly constant care. He reports that he feels hopeless and helpless.").
Id.
Id.
Id. at 128.
Id.
Id. at 126.
Id. at 126-27.
Transcript at 127.
Id. at 125.
Id The Court notes that failure to follow a suggested course of treatment is a factor the ALJ may consider in assessing the credibility of a claimant's subjective complaints. See Johnson v. Sullivan, 894 F.2d 683, 685 n. 4 (5th Cir. 1988); see also Villa v. Sullivan. 895 F.2d 1019,1024 (5th Cir. 1990) (failure to seek treatment indicates non-disability).
Transcript at 125.
Id. at 120.
Id. at 150.
With the exception of Dr. Brown's records, the ALJ discussed the above evidence in general terms. Further, by citing the exhibits containing these medical records, the decision clearly reflects that the above evidence was considered. Based on this evidence, the ALJ found plaintiffs depression was a severe impairment but did not meet or equal the listings. Given the evidence submitted to the ALJ and plaintiff's testimony about poor ability to concentrate and his preference to not be around other people, the ALJ limited plaintiff's ability to perform a full range of medium work by finding that "[d]ue to depression, the claimant is able to perform simple repetitive routine work. In addition, the claimant must have work which he can accomplish by himself without the necessity of working as part of a team, or interacting with the public" Again, the ALJ's decision reflects full consideration of the mental impairment evidence at all relevant steps.
Id. at 17 ("In 1999 and 2000, the claimant was diagnosed with a prolonged depressive reaction and spondyloarthropathy.")
Id. (citing "Ex 4F. pp. 5-11" [transcript pages 124-130]).
Id.
Id. at 191, 193.
Id. at 19.
The record also shows that neither plaintiff nor his non-attorney representative requested a psychiatric consultation and plaintiff refused counseling for depression on February 22, 2000. Plaintiff has not shown that a psychiatric consultative examination performed in the time period at issue in this case would have altered the result reached in this case. Plaintiff has also not shown that had the record been further developed by the ALJ — at the time of the hearing on October 31, 2000, or before the entry of the written decision on February 8, 2001, or before the Commissioner's October 25, 2002 order denying reconsideration — the decision would likely have been different. The evidence does not show that plaintiffs depressive disorder was other than as found by the ALJ in the time period at issue in this case. Plaintiff has not demonstrated that the record as a whole, for the time period in question in this case, was insufficient to support a disability determination such that a consultative examination should have ordered.
Id. at 125; see Johnson. 894 F.2d at 685 n. 4.
Plaintiffs request for remand for consideration of new and material evidence is equally without merit. The evidence at issue was obtained September 25, 2002 and November 19, 2002. At best, the evidence suggests that plaintiffs mental capacity had deteriorated at some point after the October 31, 2000 hearing and after the February 8, 2001 decision denying benefits. The evidence does not show that the plaintiffs depressive disorder was other than as found by the ALJ in the time period at issue in this case. Further, plaintiff has not shown "good cause for why the new evidence was not obtained earlier and submitted to the ALJ or the Appeals Counsel. Therefore, the request for remand to consider new evidence should be denied.
Docket no. 10, exhibits A and B.
Johnson v. Heckler. 767 F.2d 180, 183 (5th Cir. 1985) (remard to consider new evidence of a condition that deteriorated after the adjudicated period would be "inconsistent with these principles of appellate review to remand the case solely for the consideration of evidence of a later-acquired disability or of the subsequent deterioration of what was correctly held to be non-disabling").
Pierre. 888 f.2d at 803-04; see transcript at 9-10 (plaintiffs request for reconsideration by Appeals Council supported only be March 8, 2001 letter from counsel).
3. The ALJ erred in assessing plaintiffs residual functional capacity to perform a significant range of medium work
Plaintiff argues that the ALJ's finding that plaintiff has the residual functional capacity to lift fifty pounds occasionally and twenty-five frequently is not supported by substantial evidence. Plaintiff argues the finding "cannot be squared with any reasonable interpretation of the evidence," and, further, that the manner in which the ALJ questioned the vocational expert shows the ALJ's predisposition and "predetermined agenda for this disability claim."
Docket no. 10 at 9-10.
Id. at 10.
Plaintiff essentially testified that he is unable to do anything or a daily basis because of pain. The ALJ found plaintiffs testimony regarding the limitations due to pain was "significantly out of proportion with the medical evidence." The evidence shows that on June 22, 1999, Dr. Dietrick diagnosed plaintiff with lumbago and cervicalgia. The doctor found some tenderness in the neck, shoulders, and back, but plaintiff had almost full flexion and extension of the neck and shoulders, slight limitations that were age normal, negative straight leg raising, and good leg and foot strength. The doctor prescribed Celebrex and cyclobenzaprine. On July 13, 1999, Dr. John Calder examined plaintiffs lower back and diagnosed lumbago. Plaintiff was counseled on back exercises, lumbar support, hot showers, and proper posture. In addition to Celebrex and cyclobenzaprine, the doctor prescribed Naproxen. On November 18, 1999, Dr. Aimee Coker noted that lumbar spine x-rays were normal and plaintiff's report that Celebrex helped the pain. The doctor diagnosed osteoarthritis. On December 9, 1999, Dr. David McCall reported that plaintiffs arthritis showed slight improvement with Celebrex. Plaintiff was found to have full range of motion in the low spine and negative straight leg raises. Plaintiff was referred for physical therapy. On January 10, 2000, Dr. Koester reported that plaintiff continued to experience joint pain and stiffness and questioned the diagnoses of osteoarthritis. A medical report from the Rheumatology Specialty Clinic on March 9, 2000, reveals that plaintiff was diagnosed with spondyloarthropathy in the sacroiliac joints. Plaintiffs dosage of Celebrex was increased. On April 24, 2000, plaintiff reported to Dr. Monique Cortez that the increased dosage of Celebrex was alleviating the pain. Dr. Bolte examined plaintiff on July 26, 2000, on a consulting basis, and found that plaintiffs complaints of full body pain were without physiological explanation and that mild degenerative joint changes in the lumbar spine were consistent with age. Plaintiffs cervical spine x-ray was normal and the lumbar spine view showed mild degenerative changes at L4-5 and L5-S1. The doctor v/as unable to identify any limitations in function; specific to plaintiff's argument, no limitations for lifting/carrying. Dr. Brown found in September 2000 that plaintiff had good results for his arthritis with Celebrex with no redness or swelling of the joints. Dr. Brown questioned the diagnosis of spondyloarthropathy. A state agency consultant reported that plaintiff had non-severe lumbago with no neurosensory deficits and full range of motion in the neck. The consultant opined that plaintiffs alleged symptoms exceeded the objective medical evidence. Based on this evidence, the Court cannot conclude that the ALJ's assessment of plaintiff's residual functional capacity is unsupported by substantial evidence.
Transcript at 184-190,
Id. at 18.
Id. at 107.
Id. at 106.
Id. at 107.
Id. at 105.
Id.
Id. at 105.
Id. at 132.
Id.
Id. at 131.
Id.
Id
Id. at 130.
Id. at 122-23.
Id.
Id. at 121.
Id. at 110.
Id. at 111.
Id. at 110 and 118.
Id. at 150.
Id.
Id. at 108.
Id.
Plaintiff also asserts that the record shows the ALJ "had a predetermined agenda for this disability claim." Specifically, plaintiff contends that a discussion between the ALJ and the vocational expert regarding the exertional level at issue is evidence of the ALJ's predisposition.
Docket no. 10 at 9-14.
Id. at 13-14.
The relevant part of the transcript is as follows:
V.E. Let me start again. Surely. That's not a problem. I thing there would be significant jobs in the assembly, sorting, and hand packaging. And as I understand the hypothetical that could encompass sedentary, light and up to medium exertional categories. Is that what we're saying?
ALJ: No. If I were to find a residual functional capacity at eight [sic] light or sedentary, ma'am, this gentleman would grid as disabled.
Transcript at 202.
What plaintiff construes as a predetermined outcome, the Court views as a proper statement of the regulations. Given plaintiff's age, past work experience, and education, had the ALJ determined that plaintiff was capable of doing only light or sedentary work, he would likely have been determined to be disabled. Likewise, given that the ALJ found plaintiff could do medium exertion work, if the vocational expert had testified that with the prescribed limitations no medium work was available, plaintiff would likely have been found disabled. Thus, to make an accurate determination, the ALJ had to know if any medium work existed that would accommodate plaintiffs limitations. There is no error.
4. The ALJ failed to comply with Watson
Plaintiff has argued that the ALJ failed to explicitly determine whether plaintiff "could maintain employment for a significant period of time" as required by Watson v. Barnhart. In his reply brief, plaintiff argues that even if the subsequently decided,Frank v. Barnhart, is "the definitive word," the ALJ nevertheless was required to conduct the analysis required inSingletary v. Bowen, and Wingo v. Bowen.
Docket no. 10 at 8-9.
798 F.2d 818 (5th Cir. 1986).
852 F.2d 827 (5th Cir. 1988). The Court notes that plaintiff has not expounded on the nature of the analysis required bySingletary and Wingo.
In Singletary, the Fifth Circuit reversed a finding of no disability and remanded for reconsideration of evidence showing a plaintiff whose "history presents the picture of an individual living a tragic, chaotic personal life who has been unable to remain employed for more than limited periods of time" because of recurring psychiatric problems. The Fifth Circuit explained
Singletary. 798 F.2d at 823.
[a] finding that a claimant is able to engage in substantial gainful activity requires more than a simple determination that the claimant can find employment and that he can physically perform certain jobs; it also requires a determination that the claimant can hold whatever job he finds for a significant period of time.
Id. at 822.
The Court said, "we are not satisfied that substantial evidence supports a determination that Singletary could and wouldmaintain employment, or that this was the finding of the ALJ."
Id. at 823.
In Wingo, the Fifth Circuit reversed a no disability finding because the Commissioner "failed to consider the combination of impairments [including hyperkeratosis of the feet, goiter, possible galactorrhea tremor, vertigo, exertional difficulties, headaches, menstrual cramps, and chronic bronchitis] in determining the plaintiff was capable of gainful employment." The Court described the ALJ's decision as a "mechanical application of the guidelines [that] failed to consider the aggregate impact of her ailments." On remand, the Commissioner was to determine "whether, given the unique combination of exertional and nonexertional ailments" the plaintiff was capable of performing "in a realistic sense" work substantially available in the national economy.
Wingo. 852 F.2d at 831.
Id.
Id.
In Watson, a case involving the non-exertional limitations caused by back pain, the district court held that Singletary was applicable "only to cases of mental illness or episodic deterioration, not physical disability." The Fifth Circuit reversed the district court and held that Singletary was applicable to cases involving physical impairments. The Court noted its decision in Wingo, and explained
Watson. 288 F.3d at 217 (discussing district court's holding).
Id. at 218.
[i]n that decision, this Court held that a determination that a person is capable of engaging in substantial gainful activity depends on a finding not only that the individual has some chance of being hired, but also, that, taking account of the individual's exertional and non-exertional limitations, the individual has a reasonable chance, "once hired, of keeping the job." We noted that "[a] claimant capable of performing sedentary or light work under the guidelines must have the ability to perform the required physical acts day in and day out in the sometimes competitive and stressful conditions in which all people must work in the real world."
Id. at 217 (citing Wingo. 852 F.2d at 831).
The Court further explained that an exertional impairment such as degenerative disc disease causing periodic loss of leg movement was just as relevant to a determination that a plaintiff could maintain work as a non-exertional impairment such as back pain causing periodic inability to work.
Id. at 218.
This trilogy of case law establishes that when determining whether plaintiff has the ability to maintain work, the Commissioner must consider the combined effects of a plaintiffs exertional and/or non-exertional limitations regardless of whether the limitations are caused by physical and/or mental impairments. As discussed above, in assessing plaintiffs residual functional capacity, the ALJ considered and made allowances for plaintiffs limitations due to back pain and depression and heard testimony that such limitations would not preclude plaintiff from all work. To the extent plaintiff is arguing that these cases require every ALJ decision to make an express finding of ability to maintain, the cases do not mandate such a finding, In Frank v. Barnhart, the Fifth Circuit recently rejected the argument thatWatson "extended the Singletary decision to require that in all disability cases the Commissioner must make a finding that a claimant is capable of sustained employment in order to defeat disability claim." The Court held that "nothing in Watson suggests that the ALJ must make a specific finding regarding the claimant's ability to maintain employment in every case" and that "the ALJ [is required] to make a finding as to the claimant's ability to maintain a job for a significant period of time . . . in a situation in which, by its nature, the claimant's physical ailment waxes and wanes in its manifestation of disabling symptoms." The Court further explained: "Watson holds that in order to support a finding of disability, the claimant's intermittently recurring symptoms must be of sufficient frequency or severity to prevent the claimant from holding a job for a significant period of time."
Frank v. Barnhart. 326 F.3d 618, 619 (5th Cir. 2003).
326 F.3d at619.
Id.
Id.; see Dunbar v. Barnhart. ___ F.3d ___, 2003 WL 21061218, at * 1 (5th Cir. April 8, 2003).
Frank. 326 F.3d at 619 (emphasis added).
Plaintiff has presented no evidence to suggest that he suffers from "intermittently recurring symptoms." Moreover, the ALJ has cited 20 C.F.R. § 416.945 and SSR 96-8p, "both of which make clear that RFC is a measure of the claimant's capacity to perform work 4on a regular and continuing basis,'" As the ALJ has properly determined plaintiffs residual functional capacity and the determination is supported by substantial evidence, the ALJ has made a determination that plaintiff is able to maintain employment. Thus, Watson, Singletary. andWingo have been satisfied or are not applicable to the facts of the case.
Dunbar 2003 WL 21061218, at * 1.
See also Dunbar v. Barnhart. 223 F. Supp.2d 795 (W.D. Tex. 2002), aff'd in an unpublished opinion (Appeal No. 02-50960, Apr.8, 2003) (mandate issued on June 2, 2003). See FIFTH CIR. R. 47.5.4 ("An unpublished opinion, may, however be persuasive.").
VII. RECOMMENDATION
It is recommended that: plaintiffs request that the case be remanded so that the Commissioner can consider new and material evidence should be DENIED; and the Commissioner's decision be AFFIRMED. The ALJ's report is supported by substantial evidence and correctly applies the relevant legal standards. Judgment should be entered for defendant; each side to bear its own costs.VIII. INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO OBJECT/APPEAL
The United States District Clerk shall serve a copy of this Report and Recommendation on each and every party either (1) by certified mail, return receipt requested, or (2) by facsimile if authorization to do so is on file with the Clerk. According to Title 28 LJ.S.C. § 636(b)(1) and Rule 72(b), FED. R. CIV. P., any party who desires to object to this report must serve and file written objections to the Report and Recommendation within 10 days after being served with a copy unless this time period is modified by the District Court. A party filing objections must specifically identify those findings, conclusions or recommendations to which objections are being made and the basis for such objections; the District Court need rot consider frivolous, conclusive or general objections. Such party shall file the objections with the Clerk of the Court, and serve the objections on all other parties and the Magistrate Judge. A party's failure to file written objections to the proposed findings, conclusions and recommendations contained in this report shall bar the party from a de novo determination by the District Court, Additionally, any failure to file written objections to the proposed findings, conclusions and recommendations contained in this Report and Recommendation within 10 days after being served with a copy shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted
See Thomas v. Am. 474 U.S. 140, 150, 106 S.Ct. 466, 472 (1985).
Acuna v. Brown Root Inc., 200 F.3d 335, 340 (5th Cir. 2000); Douglass v. United Services Auto. Ass'n. 79 F.3d 1415, 1428 (5th Cir. 1996).
All matters for which this cause was referred to the undersigned magistrate judge having been disposed of,
IT IS HEREBY ORDERED that this cause is returned to the District Court for all purposes.