1

 The following background facts come from the transcript of the administrative proceedings, which is designated as

“Tr.”

1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

DELMER R. LINDSEY, §

§

Plaintiff §

§

v. § Civil Action No. 3:04-CV-0279-N

§ 

COMMISSIONER OF SOCIAL §

SECURITY, §

Defendant. §

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(B), and an

Order of the Court in implementation thereof, subject case has been referred to the United States

Magistrate Judge. Before the Court are the Plaintiff’s Motion for Summary Judgment, filed June

7, 2004, and the Defendant’s Motion for Summary Judgment, filed August 6, 2004. Having

reviewed the evidence of the parties in connection with the pleadings, the undersigned

recommends that the Plaintiff’s motion for summary judgment be DENIED and that the

Defendant’s motion for summary judgment be GRANTED. Accordingly, the case should be

AFFIRMED.

I. BACKGROUND1

A. Procedural History

Delmer R. Lindsey (“Plaintiff”) seeks judicial review of a final decision by the

Commissioner of Social Security (“Commissioner”) denying his claim for disability benefits

under Title II of the Social Security Act. On June 6, 2001, Plaintiff filed an application for

disability benefits. (Tr. at 89.) Plaintiff claimed he became disabled on June 26, 1997, due to

 

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diabetes, diabetic neuropathy affecting his legs and feet, and arthritis in his hips, knees, and

arms. (Tr. at 97.) Plaintiff’s application was denied both initially and on reconsideration. (Tr. at

45-56.) Plaintiff then timely requested a hearing before an Administrative Law Judge (“ALJ”).

(Tr. at 57.) A hearing, at which Plaintiff appeared and testified, was held on January 22, 2003.

(Tr. at 10.) On February 24, 2003, the ALJ issued his decision finding Plaintiff not disabled.

(Tr. at 10.) The Appeals Council denied Plaintiff’s request for review, concluding that the

contentions raised in Plaintiff’s request for review did not provide a basis for changing the ALJ’s

decision. (Tr. at 3-5.) Plaintiff timely appealed the Commissioner’s decision to the United

States District Court pursuant to 42 U.S.C. § 405(g) on February 10, 2004.

B. Factual History

1. Plaintiff’s Age, Education, and Work Experience

Plaintiff was born on June 3, 1946. (Tr. at 14.) At the time of the hearing before the

ALJ, he was 56 years old. Id. He graduated high school and has past relevant work experience

as a plant maintenance worker. (Tr. at 98.) Plaintiff stopped working on June 26, 1997. (Tr. at

97.) 

2. Plaintiff’s Medical Evidence

Although Plaintiff’s alleged onset of disability is June 26, 1997, the medical evidence in

the record begins on July 1, 1996. (Tr. at 196.) On that date, Plaintiff was seen by Dr. Alford

for problems with his feet and legs. Id. Plaintiff reported that his heels were hurting and that he

was experiencing sharp pain in his toes. Id. Dr. Alford noted that Plaintiff had a sensation in his

right foot and could not work overtime if it involved working on his feet. Id. Dr. Alford also

noted that Plaintiff had good vibration sense. Id. In the assessment, Dr. Alford noted that

Plaintiff had been diagnosed with diabetes in 1990 and was aware that he had diabetic

 

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neuropathy. Id. As a result, Dr. Alford recommended that Plaintiff increase control of blood

sugar levels with Glucophage. Id. 

 On December 12, 1996, Plaintiff was seen by Dr. Alford after hurting his ankle and leg

and pulling a muscle while carrying a load of firewood. (Tr. at 185.) Dr. Alford noted that

Plaintiff had abrasions on his right calf, a contusion in his left leg, and increased pain in his left

hip. Id. A radiological exam on December 30, 1996, showed a moderate degenerative change in

Plaintiff’s right ankle. (Tr. at 182.)

In February of 1997, Plaintiff underwent a neurological evaluation by Dr. Todd A. Marist

for burning discomfort, numbness, and soreness in his feet. (Tr. at 180.) Dr. Marist noted that

Plaintiff had a decreased sensation to pinprick and temperature in both feet, but Plaintiff showed

no overt tenderness in the feet to palpation. (Tr. at 180.) Plaintiff also had good peripheral

pulses. Id

On June 26, 1997, Plaintiff was seen by Dr. Alford. Plaintiff claimed that his diabetic

neuropathy had gotten worse and that he was unable to sleep or go back to work. (Tr. at 179.)

Plaintiff also stated that he had stopped taking his medication for neuropathy because it was not

working. Id. 

The record contains a July 2, 1997 letter concerning Plaintiff’s medical status. (Tr. at

178.) Dr. Alford’s letter stated that Plaintiff’s diabetes had created a painful peripheral

neuropathy. Id. Dr. Alford noted that Plaintiff was unable to stand on his feet for extended

periods of time and that nerve damage had affected Plaintiff’s sense of position. Id. In

conclusion, Dr. Alford recommended that Plaintiff “be considered for early retirement.” Id. 

On October 17, 1997, a Physician’s Report in Plaintiff’s disability pension application

for Good Year Tire and Rubber was completed by Dr. Alford. (Tr. at 170.) The report stated

 

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that Plaintiff had been diagnosed with adult onset diabetes, diabetic neuropathy affecting his legs

and feet, and arthritis in his hip. Id. Plaintiff had complained of pain in his lower extremity and

feet, pain in his left hip from arthritis and painful neuropathy. Id. Plaintiff also complained of

lacking a sense of balance and increased pain in his feet when standing for extended periods of

time. Id. Dr. Alford found that Plaintiff had decreased sensation and proprioception in his feet.

Id. The report also states that Dr. Marist confirmed Plaintiff’s diagnosis. Id. Lastly, the report

notes that Plaintiff was taking the following medications: 1) Elavil, Neprontin, and Amitriptyline

for neuropathic pain; 2) Naproxen for back pain; and 3) Glucophage and Micronase for diabetes.

Id.

During a follow-up visit on December 4, 1997, Plaintiff complained of numbness in his

fingers after performing “hard work.” (Tr. at 164) Dr. Alford noted that Plaintiff had “good

sensation” and “good strength.” Id. During a follow-up visit on March 4, 1998, Dr. Alford

noted that Plaintiff had good Complete Blood Count tests, increased lipids, and was slowly

losing weight. (Tr. at 154.)

Plaintiff complained that he was not sleeping well during a May 28, 1998 follow-up to

check his diabetes. (Tr. at 152.) During a follow-up visit on May 29, 1998, Dr. Alford noted, in

his assessment, that Plaintiff had increased lipids and good triglycerides. (Tr. at 151.)

On July 8, 1998, Plaintiff was seen by Dr. Alford. (Tr. at 148.) Plaintiff complained that

the pain in his left hip recurred three weeks ago and was getting much worse. Id. Although Dr.

Alford found that Plaintiff was experiencing pain, Dr. Alford found no tenderness in Plaintiff’s

hip. Id. In the assessment, Dr. Alford noted that Plaintiff had recurring lower back pain from

his arthritis/degenerative joint disease (DJD) and a sleep anxiety issue. Id. 

 

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The record contains a second letter by Dr. Alford written on January 1, 1999, concerning

Plaintiff’s medical status. (Tr. at 147.) Dr. Alford’s letter stated that Plaintiff’s diabetes had

created a painful peripheral neuropathy. Id. Dr. Alford noted that Plaintiff was unable to stand

on his feet for extended time periods and that nerve damage had affected Plaintiff’s sense of

position when he walked on uneven surfaces. Id. Dr. Alford concluded that the “disability [was]

permanent” and would continue to get worse. Id. 

On August 9, 1999, Plaintiff was seen by Dr. Alford and complained that his Glucophage

prescription was causing diarrhea. (Tr. at 142.) Dr. Alford advised patient to not use

Glucophage for a few days. Id. During a follow-up on August 25, 1999, Dr. Alford noted that

Plaintiff’s diarrhea had stopped since Plaintiff had stopped taking Glucophage. (Tr. at 141.) 

During a follow-up on December 29, 1999, Dr. Alford found that Plaintiff had “good

vibrating sense” and “good point protective sense”. (Tr. at 139.) Dr. Alford also prescribed

Glucophage to Plaintiff. Id. 

The record contains a third letter by Dr. Alford written on January 1, 2000, concerning

Plaintiff’s medical status. (Tr. at 130.) Dr. Alford’s letter stated that Plaintiff’s diabetes had

created a painful peripheral neuropathy. Id. Dr. Alford noted that Plaintiff was unable to stand

on his feet for extended time periods and that nerve damage had affected Plaintiff’s sense of

position when he walked on uneven surfaces. Id. Dr. Alford concluded that the “disability [was]

permanent” and would continue to get worse. Id. 

On May 3, 2001, Dr. Alford completed a consultative evaluation regarding Plaintiff’s

medical condition. Plaintiff complained of diabetes mellitus, neuropathy, and hip pain. (Tr. at

120.) The evaluation reported no tenderness, masses, or displacement. (Tr. at 122.) Although

the assessment was chronic neuropathy, balance and gait and sensory response were normal.

 

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(Tr. at 123.) In addition, the assessment noted that Plaintiff had poor control over his diabetes.

Id. 

On December 1, 2001, Dr. Alkarra completed a consultative evaluation regarding

Plaintiff’s medical condition. (Tr. at 217.) Plaintiff complained that he could not walk more

than one block or stand for more than twenty minutes because there was decreased sensation in

both lower extremities and feet. Id. Plaintiff also complained of right hip pain. Id. The

evaluation reported normal gait and station and no signs of ataxia or unsteadiness. (Tr. at 219.)

Plaintiff was able to stand on his heels and toes, squat and rise, and bend over without difficulty.

Id. Plaintiff’s straight-leg raising sign was negative. Id. During neurological tests, Plaintiff

showed decreased pinprick sensation and temperature sensation from the mid lower leg down to

the feet. Id. In addition, Plaintiff’s ankles showed no reflexes, and there was a decreased range

of motion in the cervical spine and right hip. (Tr. at 219-20.) 

 3. Hearing Testimony

A hearing was held before the ALJ on January 22, 2003. (Tr. at 20.) Plaintiff appeared

personally and was represented by a non-attorney representative. Id. Plaintiff testified that he

was last employed in June 1997 as a pipe-fitter/welder/mechanic. (Tr. at 24.) Plaintiff stated

that he stopped working because his doctor had determined that he was medically unfit to work.

(Tr. at 32.) Plaintiff testified that he had Type II diabetes which caused peripheral neuropathy in

his feet, hands, and legs. (Tr. at 25.) Plaintiff also testified that he had arthritis in his ankles,

knees, hips, elbows, back, shoulders, and neck. Id. 

Plaintiff claimed that he was having problems keeping his blood sugar down. (Tr. at 25.)

He stated that his blood sugar was high for about fifteen days of each thirty-day period, and on

those days, he was unable to do anything. (Tr. at 26.) On other days, Plaintiff claimed he could

 

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only perform light household work. Id. Plaintiff claimed that there was constant numbness and

pain in his feet, and that he could walk comfortably for fifteen to thirty minutes at a time,

depending on the terrain. Id. Plaintiff stated that he could walk comfortably for ten minutes on

concrete. Id. Plaintiff also stated that he had peripheral neuropathy, which caused his feet and

the ends of his fingers to go numb, and that his vision became blurry when his blood sugar was

high. (Tr. at 28.) 

Plaintiff further testified that he had arthritis which affected his lower back and,

primarily, his hips. (Tr. at 30.) He stated that he had bone spurs in his ankles, feet, and knees.

Id. He noted that the condition made it hard to get around or lift things. Id. Plaintiff claimed

that he was only able to lift as much as a two-liter soft drink bottle without hurting himself. (Tr.

at 31.) 

During the day, Plaintiff performed basic household chores such as laundry and washing

dishes. Id. Plaintiff also stated that he collected guns and went duck hunting three times in

2003. Id.

The Vocational Expert (“VE”) classified Plaintiff’s past relevant work as a plant

maintenance worker as heavy and skilled. (Tr. at 37.) Taking into account Plaintiff’s age,

education, and numerous assumptions regarding Plaintiff’s physical limitations, the ALJ asked

the VE four hypothetical questions to determine whether Plaintiff could perform other work in

the economy. (Tr. at 38.) The ALJ first asked whether or not a person in Plaintiff’s medical

condition could perform any past relevant work done by the claimant. Id. The VE concluded

that an individual in Plaintiff’s medical condition could not perform any of the past relevant

work done by Plaintiff. Id. The VE further testified that Plaintiff’s knowledge of hand tools and

welding equipment, knowledge of mechanical principles and practices, the ability to read

 

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blueprints, spec sheets, and manuals are transferable skills. Id. Second, the ALJ asked the VE if

there was work in the national or regional economy where Plaintiff could use his transferable

skills. (Tr. at 39.) The VE identified the jobs of electrical assembly and control panel assembly,

stating that these were light, semi-skilled positions that Plaintiff could undertake. Id. The VE

testified that there were twenty to forty thousand control assembly positions and four to ten

thousand electrical motor tester positions in the nation. (Tr. at 40.) Third, the ALJ asked the VE

whether an individual’s occasional, but not frequent, loss of feeling in his hands would change

her answer to the previous hypothetical question. Id. The VE answered that this additional

limitation would not change her answer. Id. Fourth, when asked whether an individual’s

inability to appear regularly for work would affect her answers to the prior hypothetical

questions, the VE stated that it would. (Tr. at 40-41.) The VE further stated that an individual

taking frequent unscheduled breaks would also affect her answers to the prior hypothetical

questions. (Tr. at 41.) 

C. ALJ’s Findings

The ALJ denied Plaintiff’s application for benefits by written opinion issued on February

24, 2003. (Tr. at 16.) The ALJ noted that Plaintiff was insured for disability insurance benefits

until the date of the decision. (Tr. at 11.) The ALJ found that Plaintiff had not engaged in

substantial gainful activity since the alleged onset of disability, June 26, 1997. Id. In addition,

the ALJ found that, at the time of the decision, Plaintiff had diabetes, diabetic neuropathy, and

osteoarthritis, all severe impairments pursuant to 20 CFR § 404.1520(b). (Tr. at 12.) However,

the ALJ concluded that Plaintiff’s impairments did not meet or equal a listed impairment as of

the date of the decision. Id. 

 

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The ALJ found that although Plaintiff had medically determinable impairments which

could reasonably cause the symptoms alleged, Plaintiff’s testimony was not credible nor

reasonably supported by the objective medical evidence to the extent that he alleged he was

completely unable to perform any work prior to February 24, 2003. (Tr. at 13, 15.)

The ALJ concluded that Plaintiff retained the residual functional capacity to perform

light work with limitations. (Tr. at 13.) Although Plaintiff was unable to perform his past

relevant work as a plant maintenance worker, the ALJ considered Plaintiff’s residual functional

capacity and relevant vocational characteristics in determining his disability status. (Tr. at 39.)

Because Plaintiff could not perform the full range of light work, the ALJ called the VE, who

testified that given all factors, Plaintiff could perform the jobs of electrical accessory assembly,

electrical control assembly, and electrical motor tester. Id. Moreover, the ALJ found that

Plaintiff had transferable skills acquired from previous work experience and that there were

numerous jobs in the national economy matching Plaintiff’s skills and physical limitations. (Tr.

at 14.) 

II. ANALYSIS

A. Legal Standards

1. Standard of Review

Judicial review of the Commissioner’s denial of benefits is limited to whether the

Commissioner’s position is supported by substantial evidence and whether the Commissioner

applied proper legal standards in evaluating the evidence. Greenspan v. Shalala, 38 F.3d 232,

236 (5th Cir. 1994); 42 U.S.C. § 405(g), 1383(C)(3). Substantial evidence is defined as more

than a scintilla, less than a preponderance, and as being such relevant and sufficient evidence as

a reasonable mind might accept as adequate to support a conclusion. Leggett v. Chater, 67 F.3d

 

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558, 564 (5th Cir. 1995). In applying the substantial evidence standard, the reviewing court does

not reweigh the evidence, retry the issues, or substitute its own judgment, but rather, scrutinizes

the record to determine whether substantial evidence is present. Greenspan, 38 F.3d at 236. A

finding of no substantial evidence is appropriate only if there is a conspicuous absence of

credible evidentiary choices or contrary medical findings to support the Commissioner’s

decision. Johnson v. Bowen, 864 F.2d 340, 343-44 (5th Cir. 1988).

2. Disability Determination

To be entitled to social security benefits, a claimant must prove that he or she is disabled 

as defined by the Social Security Act. Leggett, 67 F.3d at 563-64; Abshire v. Bowen, 848 F.2d

638, 640 (5th Cir. 1988). The definition of disability under the Social Security Act is “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.” 42 U.S.C. §

423(d)(1)(A); Anthony v. Sullivan, 954 F.2d 289, 292 (5th Cir. 1992).

The Commissioner utilizes a sequential five-step inquiry to determine whether a claimant

is disabled:

1. An individual who is working and engaging in substantial gainful activity will not

be found disabled regardless of medical findings.

2. An individual who does not have a “severe impairment” will not be found to be

disabled.

3. An individual who “meets or equals a listed impairment in Appendix 1” of the

regulations will be considered disabled without consideration of vocational

factors.

4. If an individual is capable of performing the work he has done in the past, a

finding of “not disabled” must be made.

 

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5. If an individual’s impairment precludes him from performing his past work, other

factors including age, education, past work experience, and residual functional

capacity must be considered to determine if work can be performed.

Wren v. Sullivan, 925 F.2d 123, 125 (5th Cir. 1991) (summarizing 20 C.F.R. § 404.1520(b)-(f)).

Under the first four steps of the inquiry, the burden lies with the claimant to prove disability.

Leggett, 67 F.3d at 564. The inquiry terminates if the Commissioner determines at any point

during the first four steps that the claimant is disabled or is not disabled. Id. Once the claimant

satisfies his or her burden under the first four steps, the burden shifts to the Commissioner at step

five to show that there is other gainful employment available in the national economy that the

claimant is capable of performing. Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994). This

burden may be satisfied either by reference to the Medical-Vocational Guidelines of the

regulations or by expert vocational testimony or other similar evidence. Fraga v. Bowen, 810

F.2d 1296, 1304 (5th Cir. 1987). A finding that a claimant is not disabled at any point in the

five-step review is conclusive and terminates the analysis. Lovelace v. Bowen, 813 F.2d 55, 58

(5th Cir. 1987).

B. Issues for Review

Plaintiff presents the following issues for review:

1. The ALJ’s finding that Plaintiff can perform a limited range of light work is not

supported by substantial evidence. Specifically, the evidence does not show that

Plaintiff can stand for four hours in an eight hour workday;

2. The hypothetical question did not include all of Plaintiff’s limitations; and

3. According to the transcript, the Vocational Expert said Plaintiff’s limitations were

compatible with full-time work while the tape says Plaintiff’s limitations were not

compatible with full-time work.

 

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C. Issue One: The Residual Functional Capacity for Limited Light Work

Plaintiff alleges that the ALJ’s finding that Plaintiff can perform a limited range of light

work is not supported by substantial evidence. (Pl. Br. at 1.) Specifically, Plaintiff contends that

the ALJ’s finding that Plaintiff could stand for a total of four hours in an eight hour workday is

not supported by the evidence in the record and Plaintiff’s testimony. (Pl. Br. at 7.)

Residual functional capacity is defined as the most that a person can still do despite

recognized limitations. 20 C.F.R. § 404.1545. “RFC is an assessment of an individual’s ability

to do sustained work-related physical and mental activities in a work setting on a regular and

continuing basis.” SSR 96-8p. “The ALJ is responsible for assessing the medical evidence and

determining the claimant’s residual functional capacity.” Perez v. Heckler, 777 F.2d 298, 302

(5th Cir. 1985). An ALJ may consider an individual to have no limitation or restriction with

respect to a functional capacity when there is no allegation of a physical or mental limitation or

restriction of a specific functional capacity, and no information in the case record that there is

such a limitation or restriction. SSR 96-8p. An individual’s RFC should be based on all of the

relevant evidence in the case record, including opinions submitted by treating physicians or other

acceptable medical sources. Id.

In assessing Plaintiff’s ability to perform work-related activities, the ALJ found that

Plaintiff retained the RFC “to perform light work with limitations.” (Tr. at 13.) In addition, the

ALJ determined that Plaintiff could “stand for 30 minutes at a time for a total of 4 hours in an 8-

hour workday.” (Tr. at 13, 15.) The ALJ considered the medical records from July 1997 to

January 2000, which stated that Plaintiff was unable to stand on his feet for an extended period

of time but did not note specific time restrictions. (Tr. at 130, 147, 180.) The records included

a July 1998 visit to Dr. Alford in which Dr. Alford noted that Plaintiff had no tenderness in his

 

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hip. (Tr. at 148.) The records also included medical reports from August 1999 to May 2001,

that cited the following findings: 1) “good vibrating sense” and “good point protective sense”

(Tr. at 139); 2) no tenderness, masses, or displacement (Tr. at 122); and 3) normal balance and

gait and sensory response (Tr. at 123.) Although a December 2001 visit notes Plaintiff’s

complaint that he could not stand for more than 20 minutes, Dr. Alford, in his report, did not

confirm Plaintiff’s complaint. (Tr. at 217.) In addition, Plaintiff was able to stand on his heels

and toes, squat and rise, and bend over without difficulty. (Tr. at 219.) 

There is no medical evidence in the record indicating that Plaintiff lacked the ability to

“stand for 30 minutes at a time for a total of 4 hours in an 8-hour workday.” (Tr. at 13, 15.) 

Furthermore, the ALJ’s finding that Plaintiff can stand for 30 minutes at a time for a total of 4

hours is in accordance with medical records noting that Plaintiff cannot stand for extended time

periods because Plaintiff is allowed to take frequent breaks from standing. The ALJ utilized all

relevant evidence within the medical record to determine Plaintiff’s RFC. (Tr. at 13.) Thus,

substantial evidence supports the ALJ’s conclusion that Plaintiff was able to perform a limited

range of light work.

D. Issue Two: The Hypothetical Question

Plaintiff alleges that the hypothetical question presented by the ALJ did not include all of

Plaintiff’s limitations. (Pl. Br. at 7.) Plaintiff contends that the hypothetical question is

“defective and incomplete” because it did not include Plaintiff’s testimony about his pain and

limitations. Id. Plaintiff asserts that his testimony regarding his pain limitations is credible and

would significantly interfere with or preclude him from performing the available work found by

the VE. Id.

 

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The ALJ has a duty to fully and fairly develop the facts relevant to a claim for benefits.

Carey v. Apfel, 230 F.3d 131, 142 (5th Cir. 2000). To establish that work exists for a claimant,

the ALJ relies on medical-vocational guidelines or the testimony of a VE in response to a

hypothetical question. Bowling v. Shalala, 36 F.3d 431, 435 (5th Cir. 1994). A hypothetical

question posed by an ALJ must reasonably incorporate all the claimant’s disabilities recognized

by the ALJ, and the claimant must be afforded a fair opportunity to correct any deficiencies in

the hypothetical question. Bowling, 36 F.3d at 436. However, the ALJ only needs to incorporate

into the hypothetical question pain limitations that the ALJ finds are supported by the record.

Morris v. Bowen, 864 F.2d 333, 336 (5th Cir. 1988). If, in making a disability determination, the

ALJ relied on testimony elicited by a defective hypothetical question, the ALJ did not carry his

burden of proof to show that despite his impairment the claimant could perform available work.

Boyd v. Apfel, 239 F.3d 698, 708 (5th Cir. 2001). 

In this case, the ALJ posed the following the hypothetical question to the VE:

Assume...an individual who is 56 years of age...has the following exertional

limitations: assume this individual can sit for a maximum of one hour at a time.

Assume this individual can sit for a total of six hours out of eight in the workday.

Assume this individual can stand for a maximum of 30 minutes at a time.

Assume this individual can stand for a total of four hours of eight in the workday.

Assume this individual can walk for a maximum of 20 minutes at a time. Assume

this individual can walk for a total of two hours of eight in the workday. Assume

this individual can lift 20 pounds on an occasional basis, 10 pounds on a frequent

basis; carry 20 pounds on an occasional basis, 10 pounds on a frequent basis.

Assume this individual can only occasionally climb stairs and ladders. In your

opinion, could an individual with those limitations perform any of the past

relevant work you’ve described for the Claimant? 

(Tr. at 38.)

In setting forth Plaintiff’s RFC, the ALJ found that Plaintiff had the following

limitations: 

 

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He can sit for 1 hour at a time for a total of 6 hours in an 8-hour workday; stand

30 minutes at a time for a total of 4 hours in an 8-hour workday; and walk for 20

minutes at a time for a total of 2 hours in an 8-hour workday. He can lift/carry 20

pounds occasionally and 10 pounds frequently. He can perform work that

involves climbing stairs on an occasional basis and work that involves handling

and feeling on a frequent basis.

(Tr. at 13.) In his findings, the ALJ determined that “Plaintiff’s allegations regarding his

limitations [were] not totally credible” because the allegations were not “reasonably related” to

the “nature, onset, location, duration, frequency, radiation, and intensity of the pain and other

symptoms experienced by [Plaintiff].” (Tr. at 13, 15.) The ALJ’s decision to discredit some of

Plaintiff’s alleged limitations came after careful consideration of “all the medical opinions in the

record regarding the severity of his impairments.” Id. Because the ALJ found that some of the

alleged limitations were not credible, the ALJ exercised his discretion to exclude them from the

hypothetical question posed to the VE. Id. See Morris, 864 F.2d at 336 (holding that the ALJ

has the discretion exclude limitations not supported by the medical record).

Accordingly, the hypothetical question posed by the ALJ reasonably incorporated all of

the limitations recognized by the ALJ, and ALJ did not err.

E. Issue Three: Transcriptional/Typographical Error

Plaintiff alleges that, according to the transcript, the Vocational Expert said Plaintiff’s

limitations were compatible with full-time work while the tape says Plaintiff’s limitations were

not compatible with full-time work. (Pl. Br. at 8.) Plaintiff asserts that this error is further

evidence that the ALJ’s decision “is not supported by substantial evidence.” Id. 

The Fifth Circuit has held that “procedural perfection in administrative proceedings is not

required.” Mays v. Bowen, 837 F.2d 1362, 1364 (5th Cir. 1988). Reversal is appropriate only

when the substantial rights of a party have been affected. Id. When an error amounts to no more

than a technical failing that does not influence the outcome of the case, it makes little sense to

 

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reverse and remand. Alejandro v. Barnhart, 291 F.Supp. 2d 497, 516 (S.D. Tex. 2003). Remand

is not appropriate unless the Plaintiff can show that he was prejudiced by the alleged error. 

Carey v. Apfel, 230 F.3d 131, 143 (5th Cir. 2000). “No principle of administrative law or

common sense requires us to remand a case in quest of a perfect opinion unless there is reason to

believe that the remand might lead to a different result.” Fisher v. Bowen, 869 F.2d 1055, 1057

(7th Cir. 1989). 

The typographical errors of which Plaintiff complains appear on pages 40 and 41 of the

record:

Q. Okay. Now finally, if an individual was unable to appear regularly for work,

that’s a – assume the individual would miss up to three days or more a month

on a regular basis. Would that affect your answer to the prior hypothetical

questions? 

A. Yes, that’s compatible with full-time employment for our purposes.

Q. Okay. And the same would be true if the individual were required to take

frequent unscheduled breaks during the day? 

A. Yes. 

(Df. Br. at 8.) Plaintiff submits that the correct response of the VE to the first question was that

this would “not” be compatible with full-time work. Plaintiff further complains that the answer

to the second question is also a typographical mistake because of the previous answer. He

argues that taking frequent unscheduled breaks during the day would not be compatible with

full-time work.

In this case, the ALJ first asked the VE two hypothetical questions to determine

Plaintiff’s RFC; she then asked two follow-up questions that included limitations not recognized

by the ALJ in setting forth Plaintiff’s RFC. The two questions at issue were the subsequent

hypothetical questions that the ALJ asked the VE. (Tr. at 40-41.) As a result, the subsequent

 

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hypothetical questions did not contribute to the ALJ’s determination that Plaintiff had the RFC

for a limited range of light work. Because the ALJ did not rely on the alleged error when

determining Plaintiff’s RFC, the error is immaterial, and does not require the court to reverse and

remand.

III. RECOMMENDATION

For the foregoing reasons, the Court RECOMMENDS that the decision of the

Commissioner be AFFIRMED.

SO RECOMMENDED, this 30th day of June, 2005.

 

___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

Pursuant to Title 28, United States Code, Section 636(b)(1), any party who desires to

object to these findings, conclusions and recommendation must file and serve written objections

within ten (10) days after being served with a copy. A party filing objections must specifically

identify those findings, conclusions or recommendation to which objections are being made.

The District Court need not consider frivolous, conclusory or general objections. A party’s

failure to file such written objections to these proposed findings, conclusions and

recommendation shall bar that party from a de novo determination by the District Court. See

Thomas v. Arn, 474 U.S. 140, 150 (1985); Perales v. Casillas, 950 F.2d 1066, 1070 (5th Cir.

1992). Additionally, any failure to file written objections to the proposed findings, conclusions

and recommendation within ten (10) days after being served with a copy shall bar the aggrieved

party from appealing the factual findings and legal conclusions of the Magistrate Judge that are

accepted by the District Court, except upon grounds of plain error. Douglass v. United Servs.

Auto. Ass’n, 79 F.3d 1415, 1428–29 (5th Cir. 1996) (en banc).

 

___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

 

 Case 3:04-cv-00279-N Document 15 Filed 06/30/05 Page 17 of 17 PageID 74