NANCY NOWAK, Magistrate Judge
I. Introduction
Plaintiff Julio Cordova seeks review and reversal of the administrative denial of Ms applications for Supplemental Security Income ("SSI") and Disability Insurance Benefits ("DIB") by the Administrative Law Judge ("ALJ") on September 12, 2001. Plaintiff contends that ALJ Bernard McKay's conclusion that plaintiff was capable of performing work available in the local and national economies is not supported by the substantial evidence of the record. Although plaintiff has only explicitly alleged one point of error — that ALJ McKay failed to include all of plaintiff's medically determinable impairments in the hypothetical proffered to the vocational expert — plaintiff has also asserted that ALJ McKay improperly assessed plaintiff's credibility and, consequently, erroneously concluded that plaintiff's subjective allegations of pain and symptomatology were not entirely credible. For these reasons, plaintiff 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.
Docket Entry 1. See also Administrative Transcript ("Transcript"), at 9-18.
Docket Entry 15, at 7-8.
Docket Entry 15.
After considering plaintiff's brief in support of an award of benefits, defendant's brief in support of the Commissioner's decision, plaintiff's reply to the defendant's 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 fully recommendation that plaintiff's complaint be DENIED and the Commissioner's decision AFFIRMED . The ALJ's findings were made by application of the correct legal standards and were supported by the substantial evidence of the record.
Id.
Docket Entry 16.
Docket Entry 17.
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), 1383(c)(3).
III. Administrative Proceedings
According to the record in this case, plaintiff fully exhausted his administrative remedies prior to filing this action in federal court. Plaintiff filed applications for DIB and SSI on October 20, 1999, alleging a disability beginning October 12, 1999. The SSA denied plaintiff's applications both initially, on March 8, 2000, and on reconsideration, June 9, 2000.
Transcript at 69-72, 307-309.
Transcript at 43-52, 311-321.
Transcript at 54-60, 323-331.
On June 14, 2000, plaintiff requested a hearing before an ALJ. The hearing was held on May 24, 2001. Plaintiff was represented by counsel at the hearing. Plaintiff's attorney was able to fully examine and question plaintiff and the vocational expert, Don Marth, during the hearing.
Transcript at 61.
Transcript at 21-40.
The plaintiff, who was forty-eight (48) years old at the May 2001 hearing, testified that he had a limited education and was unable to read or write in English. Plaintiff further testified that he had past work experience in sewer construction.
Transcript at 27. Plaintiff testified with the assistance of interpreter Lupita Cavazos. Transcript at 23.
Transcript at 26.
Plaintiff told the ALJ that he was divorced and lived with his son, who was then twenty-one (21) years old. Plaintiff further testified that his son was an undocumented alien. He also stated that neither he nor his son had a driver's license, and that they would "hitch" rides to work during plaintiff's working years.
Transcript at 28.
Id.
Transcript at 29.
When asked about his daily activities, Plaintiff testified that he was able to dress himself with difficulty. Plaintiff told the ALJ that his son prepared meals for him He further stated that he was unable to stand or sit for more than thirty (30) minutes at a time because his feet swell. Plaintiff testified that for the same reason he was unable to walk more than five (5) minutes without sitting down. In order to alleviate the pain from the swelling, Plaintiff elevated his feet for approximately one to one and half hours a day.
Transcript at 30.
Transcript at 30.
Id.
Transcript at 31.
Transcript at 31.
When asked about his other impairments, Plaintiff testified that he had been diagnosed with diabetes mellitus. To monitor his diabetes, Plaintiff checked his blood sugar three (3) times per day. Plaintiff also testified that he had vision problems as a result of his diabetes, and the medical evidence of record confirmed that Plaintiff had been diagnosed with diabetic retinopathy.
Transcript at 32.
Id .
Transcript at 33.
Plaintiff further testified that he suffered from shoulder pain as a result of poor blood circulation. He also stated that he experienced shortness of breath and chest pains approximately three (3) times per week. The shortness of breath and chest pains were severe enough to wake him up in the middle of the night. Plaintiff told the ALJ that he passed out during a cardiac treadmill test.
Id.
Transcript at 33-34.
Transcript at 34.
Transcript at 34.
Independent vocational expert Dr. Don Marth, Ph.D. also testified at the hearing. Dr. Marth stated that plaintiff had past work experience as a laborer digging ditches. Dr. Marth classified this work as heavy, unskilled activity. He opined that, given the hypothetical proffered by the ALJ, plaintiff was capable of performing the following light, unskilled jobs:
Transcript at 36.
small parts assembler . . . [with] 300,000 in the national economy, 40,000 in the regional economy. Packager by hand . . . [with] 400,000 in the national economy, and 50,000 in the regional economy.
Dr. Marth also testified that the aforementioned jobs could be performed with a thirty minute or even fifteen minute sit/stand option. However, Dr. Marth warned that the same jobs would be unavailable if plaintiff had to break from work during the work day to elevate his legs for an hour and a half.
Transcript at 37-39.
Transcript at 39.
On September 12, 2001, the ALJ issued his decision in which he 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 — that is, from the date plaintiff submitted his application through the date of the ALJ's decision. Specifically, the ALJ found that plaintiff retained the RFC to perform work available in the local and national economies.
Transcript at 9-18.
After receiving the ALJ's unfavorable decision dated September 12, 2001, plaintiff requested a review of the hearing and decision on September 21, 2001. On June 6, 2003, 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 in this court on July 14, 2003.
Transcript at 8.
Transcript at 5-6.
Docket Entry 1.
IV. 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) (2002).
Villa Y. 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 ("The court is not to reweigh the evidence, try the issues de novo, or substitute its judgment for that of the Commissioner.").
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.
42 U.S.C. § 423(a)(1).
Id. § 1382c(a)(3)(A).
Id. § 1382c(a)(3)(B).
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 (2002).
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 , 67 F.3d at 564.
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 his decision at step five of the evaluation process. At step one, the ALJ concluded that plaintiff had not engaged in substantial gainful employment since his alleged onset date of disability, October 12, 1999. The ALJ then concluded at steps two and three that the plaintiff had an impairment or combination of impairments (arteriosclerotic heart disease, rheumatic heart disease, status post mitral and aortic valve replacement, and non-insulin dependent diabetes mellitus) which were severe, but did not meet or medically equal a listed impairment as of the date the plaintiff was last insured. At step four, the ALJ found that plaintiff retained the residual functional capacity to
Transcript at 13, ¶ 2, at 17.
Transcript at 14, ¶ 3, at 17.
Transcript at 15; ¶ 4, at 17.
occasionally lift and carry 20 pounds; frequently lift and carry 10 pounds; stand/walk (as required by light work) 6 of 8 hours; and requires a sit/stand option at 30 minute intervals. The claimant therefore has residual functional capacity for a wide range of light exertional work.
The ALJ then determined that plaintiff's residual functional capacity, as just defined, prevented plaintiff from returning to his past relevant work.
Transcript at 16; ¶ 7, at 17.
At step five, the ALJ determined that given plaintiff's age (defined as a "younger" individual), "marginal" education, illiteracy in English, RFC, and unskilled work experience, there were a number of jobs available in the local and national economies which plaintiff could perform. For these reasons, ALJ McKay concluded that plaintiff was not under a disability as defined by the Act. B. Is the September 12, 2001 ALJ Decision Supported by Substantial Evidence?
Transcript at 16; 18, at 17.
Transcript at 16; ¶ 9, at 17.
Id.
Id.
Transcript at 16; ¶ 11, at 18.
Transcript at 13; ¶ 12, at 18.
Plaintiff challenges the ALJ's decision, arguing that the ALJ erroneously failed to incorporate all of plaintiffs impairments into the hypothetical proffered to the vocational expert and improperly assessed plaintiff's credibility. Plaintiff argues that these mistakes constitute reversible error and that substantial evidence does not support the ALJ's decision. In my opinion, plaintiff's grounds for reversal are not meritorious. For that reason, I recommend that plaintiff's complaint be DISMISSED and the Commissioner's decision AFFIRMED .
1. Did the ALJ erroneously fail to incorporate all of plaintiff's impairments into the hypothetical proffered to the vocational expert?
Plaintiff's first, and only explicitly delineated, point of error reads, "The ALJ Failed to Include All of Plaintiffs Medically Determinable Limitations in the Hypothetical Question to the Vocational Expert." This heading is, in reality, a misnomer since the essence of plaintiff's argument is not that the ALJ failed to reasonably incorporate all of plaintiff's medically determinable impairments into the hypothetical question posed to the vocational expert. Rather, the crux of plaintiff's argument and brief is that the ALJ improperly dismissed plaintiff's statements that he was required to elevate his legs for one to one and a half hours at a time, and the vocational expert's testimony that such breaks would preclude plaintiff's ability to obtain and maintain competitive employment. Specifically, plaintiff's brief avers
Docket Entry 15, at 6. The case law is clear that an ALJ commits harmful and reversible error when he or she fails to incorporate all of the plaintiff's recognized impairments into the hypothetical posed to the vocational expert. See, e.g. Bowling v. Shalala , 36 F.3d 431, 436 (5th Cir. 1994)("Unless the hypothetical question posed to the vocational expert by the ALJ can be said to incorporate reasonably all disabilities of the claimant recognized by the ALJ, and the claimant or his representative is afforded the opportunity to correct deficiencies in the ALJ's question by mentioning or suggesting to the vocational expert any purported defects in the hypothetical questions (including additional disabilities not recognized by the ALJ's findings and disabilities recognized but omitted from the question), a determination of non-disability based on such a defective question cannot stand."); Boyd v. Apfel , 239 F.3d 698, 707 (5th Cir. 2001). However, the ALJ need only incorporate those medical conditions which qualify as impairments or disabilities. Id.
the vocational expert's testimony showed, upon questioning by Mr. Cordova's counsel, that if he were to have frequent unscheduled breaks of the nature just described, such person would have difficulty maintaining employment.
Plaintiff's brief then asserts, in detail, that the ALJ's decision abrogated the SSA's policy ruling outlining the manner in which an adjudicator must evaluate a claimant's subjective allegations of pain and symptomatology. Thus, the only inquiry before the court is whether the ALJ improperly assessed plaintiffs credibility and, as a result, whether substantial evidence supports the ALJ's conclusion that plaintiff did not require the aforementioned daily breaks, thereby precluding his ability to maintain employment.
2. Did the ALJ improperly assess plaintiffs credibility?
Plaintiff's brief argues that the ALJ improperly assessed plaintiff's credibility, particularly as it related to plaintiff's subjective allegations of pain and symptomatology. In particular, plaintiff's brief asserts
the ALJ did not give Mr. Cordova's testimony regarding his limitations the appropriate weight according to the evidence . . . The ALJ stated regarding Mr. Cordova's credibility is that
(sic) `[t]he claimant's statements concerning his impairments and their impact on his ability to work are credible to the extent that they allow the work capacity determined below.' Tr. 15, 17. The reason used by the ALJ was `there is no indication in the record to support the claim [that Mr. Cordova requires one to one and a half hours to elevate his legs each day]' and that `he noted that he takes daily walks both inside and outside of the house.' Tr. 15. This proves nothing. Mr. Cordova testified at the hearing that he walks around the apartment, as mentioned above. Tr. 30. That statement has nothing to do with his need to elevate his legs every day, i.e., where is the connection between walking and elevating legs? Mr. Cordova never stated he cannot walk at all.
Notably, the only evidence specifically cited by plaintiff in support of the aforementioned arguments is plaintiff's testimony and the testimony of the vocational expert, Dr. Marth.
Social Security Ruling 96-7p was written to clarify the procedure to be used in assessing the credibility of a Social Security claimant's statements about symptoms and pain. The Ruling requires the ALJ to engage in a two-step process. In the first step,
Policy Interpretation Ruling Titles II and XVI: Evaluation of Symptoms in Disability Claims — Assessing the Credibility of an Individual's Statements . SSR 96-7p, at * 1.
the adjudicator must consider whether there is an underlying medically determinable physical or mental impairment(s) . . . that could reasonably be expected to produce the individual's pain or other symptoms.
If an underlying physical or mental impairment that could reasonably be expected to produce the individual's pain has been established, the adjudicator
must evaluate the intensity, persistence, and limiting effects of the individual's symptoms to determine the extent to which the symptoms limit the individual's ability to do basic work activities.
When the adjudicator needs additional information to assess the plaintiffs credibility, he should assess the following kinds of factors:
1. The individual's daily activities;
2. The location, duration, frequency, and intensity of the individual's pain or other symptoms;
3. Factors that precipitate and aggravate the symptoms;
4. The type, dosage, effectiveness, and side effects of any medication the individual takes or has taken to alleviate pain or other symptoms;
5. Treatment, other than medication, the individual receives or has received for relief of pain or other symptoms;
6. Any measures other than treatment the individual uses or has used to relieve pain or other symptoms (e.g., lying flat on his or her back, standing for 15 to 20 minutes every hour, or sleeping on a board); and
7. Any other factors concerning the individual's functional limitations and restrictions due to pain or other symptoms.
In the instant case, the ALJ performed the analysis required by SSR 96-7p in finding plaintiff's statements regarding his leg-elevation breaks less than credible. The ALJ's decision stated, in pertinent part:
In making this [RFC] assessment, the undersigned My considered all symptoms reported by the claimant, including pain, and the extent to which the symptoms can reasonably be accepted as consisted with the objective medical evidence and other evidence based on the requirements of
20 C.F.R. § 404.1529, and Social Security Ruling 96-7p. In this case, the record indicates that the claimant's medical treatment alleviates his heart symptoms and when he follows a recommended diet and is compliant with medication taking, has controlled diabetes. Although the claimant alleges that he requires 1 to 1 1/2 hours to elevate his legs each day, there is no indication in the record to support the claim Significantly, in a disability questionnaire, the claimant noted that he takes daily walks both inside and outside of the house and that his doctors note medical improvement. He also related that everyday he has symptoms of "very little pain" when he raises from bed or a chair, and "I feel in time they will diminish." (Ex. 4E, p. 1) The level of pain reported, together with the objective evidence, are inconsistent with the claim that he is unable to perform any work activity. Therefore, the claimant's statements concerning his impairments and their impact on his ability to work are not totally credible in light of the reports of the treating and examining practitioners, the degree of medical treatment required, and the daily activities that he reports.
As noted above, the undersigned considered all medical opinions, which are statements from acceptable medical sources, which reflect judgments about the nature and severity of the impairments and resulting limitations (
20 C.F.R. § 404.1527 and Social Security Rulings 96-2p and 96-6p). The record does not contain opinion statement from any medical treatment provider indicating the claimant is disabled. In addition, the undersigned also considered the findings of state agency medical consultants who reviewed the record for initial determination and reconsideration decisions. At the lower level, the claimant was found able to perform medium range work (Ex. 137). Considering the record as a whole as developed at the time of this decision as summarized above, the undersigned finds that the combination of impairments are somewhat more limiting that
(sic) previously determined and
more appropriately limit the claimant to light range work. SSR 96-6p.
Thus, the ALJ fully complied with the requisite analysis set forth in SSR 96-7p. He weighed plaintiff's subjective allegations of pain against the totality of the evidence in the record, including plaintiff's testimony regarding his daily activities, the frequency and intensity of his pain, and the entirety of the medical evidence in the record. For these reasons, plaintiff has failed to establish that the ALJ committed harmful error.
Finally, plaintiff briefly avers that the ALJ improperly failed to assess plaintiff's ability to maintain employment when he disregarded the evidence that plaintiff requires lengthy breaks to elevate his leg and was, therefore, precluded both from obtaining and maintaining employment.
See Docket Entry 15, at 6, "On this evidence, the ALJ was required to make a determination that the plaintiff could not actually maintain employment in any of the hypothetical positions identified."
When a plaintiffs ability to maintain employment is questioned during the administrative hearing process, the ALJ is required to engage in an analysis of the same. However, 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.
Rather, the ALJ is required to assess the plaintiff's ability to maintain employment only when the plaintiffs
intermittently recurring symptoms . . . [are] of sufficient frequency or severity to prevent the claimant from holding a job for a significant period
of time.
In the instant case, the only evidence which placed plaintiffs ability to maintain employment into question, plaintiffs testimony regarding his need to elevate his legs for substantial periods of time, was properly dismissed because it was not supported by the remaining evidence of record. As such, plaintiff failed to establish that his intermittently recurring symptoms were of sufficient frequency and severity to prevent him from maintaining employment. Therefore, the ALJ's failure to engage in a detailed analysis of plaintiff's ability to maintain employment does not constitute prejudicial error.
V. Recommendation
Based on the foregoing, I recommend that plaintiff's complaint be DENIED and the Commissioner's decision AFFIRMED . Plaintiff has failed to establish that the ALJ committed prejudicial (i.e. reversible) error.
VI. Instructions For Service And Notice of Right to Object/Appeal
The United States District Clerk shall serve a copy of this Memorandum 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 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b), any party who desires to object to this report must serve and file written objections to the Memorandum 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 not 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 Memorandum 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 by the District Court.
See Thomas v. Arn , 474 U.S. 140, 149-152(1985).
Douglass v. United Servs. Auto. Ass'n. 79 F.3d 1415, 1428-29 (5th Cir. 1996).