IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

KATIE LECOQ, §

 §

Plaintiff, §

 § Civil Action No. 3:04-CV-0825-D

VS. §

 §

JO ANNE B. BARNHART, §

COMMISSIONER OF SOCIAL §

SECURITY, §

 §

Defendant. §

MEMORANDUM OPINION

Plaintiff Katie LeCoq (“LeCoq”) brings this action under

§ 205(g) of the Social Security Act (the “Act”), 42 U.S.C.

§ 405(g), for judicial review of the final decision of the

Commissioner of Social Security (“Commissioner”) denying her

application (as amended) for a closed period of disability and

disability insurance benefits and supplemental security income

benefits under titles II and XVI of the Act. Concluding that LeCoq

has failed to demonstrate reversible error, the decision is

AFFIRMED. 

 I

LeCoq was born in 1958 and applied for disability insurance

benefits and supplemental security income benefits under titles II

and XVI on November 3, 1994, contending she had been unable to

engage in substantial gainful activity since August 3, 1993. LeCoq

amended her application to seek a closed period of disability from

August 3, 1993 until June 15, 1995, because her medical condition

 

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improved while her case was pending. She has a high school

education and 31⁄2 years of college, which is defined as more than a

high school education. Her relevant work history includes jobs as

a postal flat sorter and medical laboratory technician. LeCoq

maintains that she was unable to work during the relevant time

period due, inter alia, to Post Traumatic Stress Disorder (“PTSD”)

and tingling secondary to bilateral carpal tunnel syndrome

(“BCTS”).

The Administrative Law Judge (“ALJ”) conducted a hearing in

1997 and denied her claim. LeCoq sought review and in 2001 the

Appeals Council remanded for another hearing. Following a second

hearing in 2002, the ALJ again denied her claim. He found that her

impairments, although “disabling from August 1993 until October

1993, failed to meet the 12-month durational requirement[ ]” of the

Act. R. 19. 

The ALJ found that LeCoq “was able to sit, stand, and walk for

six hours [in] an eight-hour work day and lift and carry five

pounds frequently and [ten] pounds occasionally,” id., and that she

“was limited to work activity at the light exertional level[,]” id.

at 20. He also found that her ability to perform the full range of

light work was compromised by pain due to BCTS and by an inability

to perform fine manipulation and repetitively use her hands. The

ALJ concluded at step three that her severe depression, PTSD, and

BCTS did not meet or equal any of the listings in Appendix 1,

 

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Subpart P, Regulation No. 4. He found at step four that she could

not perform her past relevant work, “which required repetitive fine

manipulation and lifting 25 pounds frequently and 50 pounds

occasionally.” Id. The ALJ then shifted the burden to the

Commissioner at step five to show that there were other jobs

existing in significant numbers in the national economy that LeCoq

could perform, consistent with her residual functional capacity

(“RFC”), age, education, and work experience. Using the MedicalVocational Guidelines of Appendix 2, Subpart P, as a framework, and

based on the testimony of the vocational expert (“VE”), the ALJ

found that LeCoq could perform the occupations of cashier, ticket

taker, and security guard, and that there were a significant number

of these jobs in the national economy that she could have performed

during the relevant period. He therefore concluded that LeCoq was

not disabled, within the meaning of the Act, for any period of 12

months during the period August 3, 1993 to June 15, 1995.

LeCoq sought review by the Appeals Council, which denied her

request. The ALJ’s decision thus became the final decision of the

Commissioner. LeCoq now seeks judicial review.

II

The court’s review of the Commissioner’s decision is limited

to determining whether substantial evidence supports the decision

and whether the Commissioner applied the proper legal standards to

evaluate the evidence. Ripley v. Chater, 67 F.3d 552, 555 (5th

 

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Cir. 1995); Martinez v. Chater, 64 F.3d 172, 173 (5th Cir. 1995)

(per curiam). “The Commissioner’s decision is granted great

deference and will not be disturbed unless the reviewing court

cannot find substantial evidence in the record to support the

Commissioner's decision or finds that the Commissioner made an

error of law.” Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995)

(footnote omitted). 

“The court may not reweigh the evidence or try the issues de

novo or substitute its judgment for that of the [Commissioner].”

Kane v. Heckler, 731 F.2d 1216, 1219 (5th Cir. 1984). “If the

Commissioner's findings are supported by substantial evidence, then

the findings are conclusive and the Commissioner’s decision must be

affirmed.” Martinez, 64 F.3d at 173. “Substantial evidence is

‘such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.’” Greenspan v. Shalala, 38 F.3d

232, 236 (5th Cir. 1994) (quoting Richardson v. Perales, 402 U.S.

389, 401 (1971)). “It is more than a mere scintilla, and less than

a preponderance.” Spellman v. Shalala, 1 F.3d 357, 360 (5th Cir.

1993) (citing Moore v. Sullivan, 919 F.2d 901, 904 (5th Cir. 1990)

(per curiam)). “To make a finding of ‘no substantial evidence,’

[the court] must conclude that there is a ‘conspicuous absence of

credible choices’ or ‘no contrary medical evidence.’” Dellolio v.

Heckler, 705 F.2d 123, 125 (5th Cir. 1983)). Even if the court

should determine that the evidence preponderates in the claimant’s

 

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favor, the court must still affirm the Commissioner’s findings if

there is substantial evidence to support these findings. See Carry

v. Heckler, 750 F.2d 479, 482 (5th Cir. 1985). The resolution of

conflicting evidence is for the Commissioner rather than for this

court. See Patton v. Schweiker, 697 F.2d 590, 592 (5th Cir. 1983)

(per curiam). 

For purposes of social security determinations, “disability”

means an inability to engage in substantial gainful activity

because of any medically determinable physical or mental impairment

or combination of impairments that could be expected either to

result in death or to last for a continuous period of not less than

12 months. 42 U.S.C. § 423(d)(1)(A). To determine whether a

claimant is disabled, the Commissioner uses a five-step sequential

inquiry. Leggett, 67 F.3d at 563; Martinez, 64 F.3d at 173-74.

The Commissioner must consider whether (1) the claimant is

presently working; (2) the claimant’s ability to work is

significantly limited by a physical or mental impairment; (3) the

claimant’s impairment meets or equals an impairment listed in

Appendix 1, Subpart P, Regulation No. 4; (4) the impairment

prevents the claimant from doing past relevant work; and (5) the

claimant cannot presently perform relevant work that exists in

significant numbers in the national economy. Leggett, 67 F.3d at

563 n.2; Martinez, 64 F.3d at 173-74; 20 C.F.R. § 404.1520 (2004).

“The burden of proof is on the claimant for the first four steps,

 

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but shifts to the [Commissioner] at step five.” Bowling v.

Shalala, 36 F.3d 431, 435 (5th Cir. 1994) (per curiam) (citing

Anderson v. Sullivan, 887 F.2d 630, 632-33 (5th Cir. 1989) (per

curiam)). At step five, once the Commissioner demonstrates that

other jobs are available to a claimant, the burden of proof shifts

to the claimant to rebut this finding. Selders v. Sullivan, 914

F.2d 614, 618 (5th Cir. 1990) (per curiam).

When determining the propriety of a decision of “not

disabled,” this court’s function is to ascertain whether the record

considered as a whole contains substantial evidence that supports

the final decision of the Commissioner, as trier of fact. The

court weighs four elements of proof to decide if there is

substantial evidence of disability: (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) age, education, and work history. Martinez, 64 F.3d at 174

(citing Wren v. Sullivan, 925 F.2d 123, 126 (5th Cir. 1991) (per

curiam)). 

“The ALJ has a duty to develop the facts fully and fairly

relating to an applicant’s claim for disability benefits.” Ripley,

67 F.3d at 557. “If the ALJ does not satisfy [this] duty, [the]

decision is not substantially justified.” Id. Reversal of the

ALJ’s decision is appropriate, however, “only if the applicant

shows that [she] was prejudiced.” Id. The court will not overturn

 

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1In her reply brief, although LeCoq states that she “generally

continues to stand on the arguments originally presented to this

Court” and is taking the “opportunity to point out some significant

flaws in Defendant’s arguments[,]” P. Rep. Br. at 1, she raises new

arguments in response to the Commissioner’s contentions, see, e.g.,

id. at 2 (contending that the ALJ provided no legitimate reason why

he concluded in his 1997 decision that the evidence demonstrated

that she had a severe mental impairment but concluded in 2002 that

the same evidence demonstrated that her mental impairment imposed

only slight limitations). The court declines to consider any such

new arguments and therefore does not address them. See Senior

Unsecured Creditors’ Comm. of First RepublicBank Corp. v. FDIC, 749

F. Supp. 758, 772 (N.D. Tex. 1990) (Fitzwater, J.) (declining to

consider party’s argument raised for first time in reply brief). 

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a procedurally imperfect administrative ruling unless the

substantive rights of a party have been prejudiced. See Smith v.

Chater, 962 F. Supp. 980, 984 (N.D. Tex. 1997) (Fitzwater, J.). 

III

LeCoq contends the ALJ erroneously concluded that she did not

suffer from a severe mental impairment during the relevant period

where he misrepresented the medical expert (“ME”) testimony on

which he stated he was relying and ignored medical evidence that

contradicted his findings. Under this more general assertion, she

advances several contentions that the court considers below.1

A

1

LeCoq argues that, even though the record clearly documents

that she suffered from a mental impairment during the relevant

period, the ALJ failed to identify any applicable mental listing

and failed to perform his own analysis of the evidence. She

 

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maintains that where the medical evidence reveals the presence of

a mental impairment affecting a claimant’s ability to work, the

Commissioner’s own regulations dictate that the ALJ must follow the

procedure set out in 20 C.F.R. § 404.1520a and the Listing of

Impairments to evaluate the evidence of that impairment. Instead,

she contends the ALJ stated that he was accepting the testimony of

Sol J. Freeman, M.D. (“Dr. Freeman”), the ME who was called to

testify regarding LeCoq’s physical impairments, who is not an

expert in psychiatry or psychology. She posits that, although Dr.

Freeman did not testify regarding her mental impairments, the ALJ

indicated that he testified that LeCoq had only slight restrictions

of daily living, social functioning, concentration, and persistence

and pace, and testified that she had experienced no episodes of

decompensation. LeCoq complains that the ALJ completely

misrepresented the record because Dr. Freeman did not provide this

testimony.

2

As a preliminary matter, the court holds that, despite LeCoq’s

reference to § 404.1520a and the Listing of Impairments, and her

assertion that the ALJ failed to identify any applicable mental

listing and perform his own analysis of the evidence, she has not

presented any claim of error beyond the specific contention that

the ALJ misrepresented the record. She has not, for example,

preserved a claim of error that the ALJ failed in some respect to

 

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2

In her reply brief, LeCoq states that, after the Appeals

Council remanded the case, the ALJ did not complete a new

Psychiatric Review Technique Form and did not expressly make new

Psychiatric Review Technique findings in the body of his 2002

decision. See P. Rep. Br. at 2. Although she does not further

develop this statement as a distinct claim of error, to the extent

she intends to do so, the court declines to consider it because it

would be a new argument raised in her reply brief. See supra note

1.

3The court notes that, in accordance with Listing 12.04, the

ALJ did appear to assess the degree of LeCoq’s functional

limitations under the “B” criteria. See R. 18; 20 C.F.R. Pt. 404,

Subpt. P, App. 1, Listing 12.04(B) (2004). 

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apply properly the “special technique” for analyzing mental

impairments. Cf. Frames ex rel. Rollins v. Barnhart, No.

3:03-CV-0924-D, slip op. at 3, 6 (N.D. Tex. June 23) (plaintiff

explicitly sought judicial review on ground that ALJ had failed to

apply “special technique” for analyzing mental impairments under

§ 404.1520a), appeal docketed, No. 04-11028 (5th Cir. Aug. 30,

2004).2 The court therefore turns to the argument that is properly

before the court.3

3

The record reflects that Dr. Freeman testified about LeCoq’s

physical impairments as the ME at her 2002 hearing. As LeCoq

points out, Dr. Freeman is not an expert in the fields of

psychiatry and psychology. The ALJ did not, however, misrepresent

Dr. Freeman’s testimony. Preceding a paragraph in which the ALJ

discussed evidence of LeCoq’s physical impairments, the ALJ

addressed evidence of her mental impairments. The second

 

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paragraph——i.e., concerning physical impairments——began by stating,

“[t]he medical expert further stated[.]” R. 18. LeCoq interprets

this introductory phrase to mean that the ALJ was relying on the

same ME who addressed physical limitations when he discussed mental

limitations in the preceding paragraph. See P. Rep. Br. at 5.

Considering the record as a whole and the ALJ’s decision, however,

it is clear that the evidence the ALJ discussed concerning LeCoq’s

mental impairments came not from Dr. Freeman, but from Alvin Smith,

Ph.D. (“Dr. Smith”), who served as an ME at LeCoq’s 1997 hearing

and provided information concerning her mental impairments. Dr.

Smith’s testimony is consistent with the ALJ’s characterization of

his testimony that, “while [LeCoq] was hospitalized . . . [she] was

severely impaired due to major depression and [PTSD],” and confirms

that it is he, not Dr. Freeman, who is the source of the findings.

Compare R. 18 with id. 476-495.

The court recognizes that the ALJ did not explicitly identify

Dr. Smith in his ruling. Even if the court assumes arguendo that

the ALJ’s decision is somehow defective because it did not identity

Dr. Smith as the source of the findings, the court reviews the

ALJ’s judgment, not his opinion. See Stephens v. Heckler, 766 F.2d

284, 287 (7th Cir. 1985) (stating “[t]he statute requires us to

review the quality of the evidence . . . not the quality of the

ALJ’s literary skills.”). “The ALJs work under great burdens. .

. . When they slow down to write better opinions, that holds up

 

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4In her reply brief, LeCoq posits that, even if the ALJ did

intend to refer to Dr. Smith’s testimony, he misrepresented the

testimony. See P. Rep. Br. at 5. She reasons that Dr. Smith

provided no opinion regarding the “B” criteria that the ALJ

described as being based on the ME’s testimony. See 20 C.F.R. Pt.

404, Subpt. P, App. 1, Listing 12.04(B) (2004). LeCoq asserts that

neither Dr. Smith nor Dr. Freeman testified that she had only

slight restrictions in general functioning and no episodes of

decompensation and that, regardless which physician the ALJ

referred to in his decision, he misrepresented the ME testimony

regarding the “B” criteria and, consequently, his decision is not

supported by substantial evidence. 

Contrary to LeCoq’s argument, Dr. Smith did provide an opinion

that relates to her social functioning, which is one of the “B”

criteria. See R. 480. Additionally, to the extent LeCoq argues

that the ALJ identified the ME’s testimony as the basis for his

findings on the “B” criteria, she engages in an incorrect reading

of his decision. Nowhere did the ALJ state that his “B” criteria

findings were based on the ME’s testimony. In any case, LeCoq has

failed to show reversible error. 

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the queue and prevents deserving people from receiving benefits.”

Id. Had the ALJ identified the particular ME on whose testimony he

relied, the parties and the court might have found it easier to

eliminate a potential source of confusion, but it would not change

the substantive evidence on which the ALJ based his decision.

LeCoq has not demonstrated a basis to reverse the Commissioner.4

B

LeCoq maintains that the ALJ ignored or disregarded other

substantial evidence that was contrary to his findings. She does

not make clear the standard under which she contends this court

must assess the claimed error, although she appears to contend at

the end of the relevant argument that the ALJ erred under

Singletary v. Bowen, 798 F.2d 818 (5th Cir. 1986), by failing to

 

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consider whether she could have sustained work activity on a

regular basis. See P. Br. at 13.

Because LeCoq cites only Singletary and does not otherwise

identify the legal standard under which she seeks review, the

court, aside from considering whether there is Singletary-type

error, will address her arguments under the settled principles that

resolution of conflicting evidence is for the Commissioner, see

Patton, 697 F.2d at 592, and that the court must affirm the

Commissioner’s findings if they are supported by substantial

evidence, see Carry, 750 F.2d at 482.

1

LeCoq cites as examples of the ALJ’s ignoring or disregarding

other substantial evidence his finding that she did not suffer from

a period of decompensation during the relevant time period, which

she contends “is completely at odds with the record.” P. Br. at

12. LeCoq states that, in September 1993, her treating physician

specifically indicated that she was decompensating and recommended

psychiatric care. She posits that, in October 1993, she had become

incredibly despondent and was hospitalized for two weeks. She

complains that, considering this evidence, the ALJ did not explain

why he concluded that she had not experienced an episode of

decompensation. LeCoq also contends that the reviewing agency

physicians concluded that her mental impairment imposed moderate

restrictions on her social functioning and limited her ability to

 

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perform detailed tasks. She also maintains that Dr. Smith

testified that, although her mental impairment was not disabling

throughout the entire period at issue, it was still severe after

she left the hospital and would have placed limitations on her

ability to function; that, while she could have followed simple

instructions, she would have had difficulty with social

functioning; and that she could have had only minimal and

superficial contact with coworkers and supervisors and that public

contact would have been precluded. She contends that even the ALJ

found in his first decision that she was restricted to work

involving simple instructions.

LeCoq’s arguments are deficient in several respects. First,

although LeCoq argues that the ALJ ignored or disregarded

substantial evidence contrary to his findings, the court is unable

to conclude from the ALJ’s decision alone whether he did in fact

ignore or disregard the evidence mentioned or whether he simply

discounted it in the face of evidence that supported his findings.

Second, although LeCoq appears to contend that the ALJ’s findings

conflict with evidence in the record, she fails to explain how this

infected the consideration of her claim under the ALJ’s application

of the five step analysis called for by 20 C.F.R. § 404.1520. For

example, as previously mentioned, LeCoq argues that the ALJ’s

finding that she did not suffer from a period of decompensation

during the relevant period conflicts with the record. An erroneous

 

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finding as to decompensation has potential relevance at steps

three, four, and five. LeCoq does not specifically identify,

however, which of these steps, if any, was impacted by the ALJ’s

purportedly erroneous finding. This same deficiency exists as to

her argument regarding the reviewing agency physicians’ conclusions

and Dr. Smith’s opinions regarding her limitations. LeCoq has also

failed to show that she was prejudiced by the ALJ’s findings and

therefore has not demonstrated reversible error.

 Even assuming the ALJ’s finding that “there were no episodes

of decompensation,” R. 18, conflicts with the record and lacks

substantial supporting evidence, LeCoq cannot show that the ALJ

committed reversible error. The ALJ found that LeCoq had disabling

impairments during the period August 1993 to October 1993 (which

includes the September referral and the October period of

despondence that LeCoq cites). R. 19. Dr. Smith opined that she

met a 12.04 listing while she was in the hospital for two weeks in

October 1993 with severe depression. R. 476-77, 479. See 20

C.F.R. Pt. 404, Subpt. P, App. 1, Listing 12.04 (2004).

Nevertheless, he also testified that “she was discharged as less

depressed, less labile and improved,” that “there was no 12-month

period . . . where her degree of impairment was at the level it was

when she was hospitalized,” and that “hospitalization was

effective.” R. 477, 479. Even if LeCoq was decompensating or

despondent from August 1993 to October 1993, she has not shown that

 

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she experienced additional episodes of decompensation thereafter.

Accordingly, she has not demonstrated that her ability to work

after this period would have been limited in any way due to

decompensation and has thus failed to show that the ALJ committed

reversible error. 

LeCoq cites an assessment performed by agency physician T.C.

McCormick, M.D. (“Dr. McCormick”), wherein he concluded that she

had moderate difficulties in maintaining social functioning and was

moderately limited in her ability to carry out detailed

instructions. See R. 69, 80. Her citation to this evidence alone

is inadequate to show either that the ALJ erred at step three in

concluding that “[h]er impairments did not meet or medically equal”

a listing, R. 20, or that he erred at step five in finding that

“jobs existed in significant numbers in the national economy which

claimant could have performed” during the relevant period. R. 21.

Over the course of the relevant period, LeCoq’s functional

limitations were assessed by agency physicians under listings

12.04, 12.06, and 12.08. R. 73, 80, 106, 113. To meet the

requirements for these listings under the “B” criteria, a claimant

must suffer from at least two of the following: 

1. Marked restriction of activities of daily

living; or

2. Marked difficulties in maintaining social

functioning; or

3. Marked difficulties in maintaining

concentration, persistence, or pace; or

4. Repeated episodes of decompensation, each

of extended duration[.]

 

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20 C.F.R. Pt. 404, Subpt. P, App. 1, Listings 12.04, 12.06, & 12.08

(2004). There is substantial evidence in the record to support the

ALJ’s findings that LeCoq only had slight limitations as to the

first and third criteria. Two examining physicians who examined

LeCoq during the relevant period reported little to no problems in

these particular areas. See R. 351 (Steven Vobach, M.D.’s June 2,

1994 psychiatric report) (noting LeCoq’s report that she could

“bathe, dress and groom herself independently” and “cook meals and

clean her residence when she [had] the energy” and observing that

she could drive, could handle her own finances, and that her

“concentration, persistence and pace were good.”); R. 371-72 (Brian

Espinoza, M.D.’s February 6, 1995 psychiatric report) (finding

similarly). Moreover, even if the court assumes, as it did

earlier, that LeCoq suffered one episode of decompensation, as the

court has already indicated, LeCoq has not shown that she suffered

from any other episodes of decompensation during the relevant

period. Accordingly, she falls short of showing that she had

repeated episodes of decompensation and fails to establish the

fourth “B” criterion. Because she fails to show that the above

three criteria were of the severity needed to meet the requirements

of a listing under the “B” criteria, she would not have been able

to meet the requirements of the listings under which her

limitations were assessed, regardless what her capabilities were as

to social functioning. Consequently, her citation to Dr.

 

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5Although Dr. Smith also indicated that LeCoq would have been

precluded from public contact, R. 481, the ALJ was entitled to

conclude otherwise, as explained infra.

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McCormick’s assessment fails to show that the ALJ committed

reversible error at step three.

Moreover, although Dr. McCormick concluded that LeCoq was

moderately limited in social functioning and her ability to perform

detailed tasks, he did conclude that she “retain[ed] the ability to

understand and follow simple instructions to adequately interact

[with] co-workers and supervisors [and] to adapt to routine work

environments.” R. 71. Dr. Smith testified similarly. While

acknowledging that LeCoq’s impairment for depression was severe

during the relevant period and that “she had some limitations in

the area of social functioning,” he testified that LeCoq would have

been able to understand, remember, and carry out simple

instructions and function in a routine work environment. R. 480.

He also opined that she would have been able to relate to coworkers

and accept supervision, albeit with some difficulty due to her

propensity for anger and irritation.5 R. 480-81. These

observations are significant because, during the hearing that

preceded his 2002 decision, the ALJ specifically restricted the

potential jobs that LeCoq could perform to those in the unskilled

occupational base. See R. 512. In his hypothetical to the VE, he

explicitly recognized that LeCoq “had severe mental limitations

affecting concentration, detailed work, and complex tasking, “but

 

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6In her brief, LeCoq appears to rely in support of her

argument on the ALJ’s finding in his 1997 decision that LeCoq did

not have the RFC to perform work that required “understanding,

remembering and carrying out more than simple job instructions.”

R. 48. Because the VE limited her analysis of jobs that LeCoq

could perform to those in the unskilled job base, the ALJ’s

analysis at step five was consistent with the limitation he

explicitly recognized in his earlier decision because unskilled

work merely requires an individual to “understand, carry out, and

remember simple instructions.” SSR 85-15, 1985 WL 56857 (S.S.A.),

at *4 (1985). 

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met the SSR-85.15 requirements for unskilled work, which are

understand, remember, carry out simple instructions, relate to

coworkers and supervision, [and] adapt to a routine work

environment.”6 R. 512; see also SSR 85-15, 1985 WL 56857 (S.S.A.),

at *4 (1985). Based on the unskilled jobs the VE identified in her

testimony, see R. 512-14, the ALJ found that there were significant

jobs in the national economy that LeCoq could perform. See R. 20.

Although the ALJ does not explicitly state in his decision that he

found that LeCoq was capable of doing unskilled work, this finding

is implicit from his reliance on the VE’s testimony. Drs.

McCormick’s and Smith’s testimony provide substantial evidence for

such a finding. Because the VE restricted the potential jobs LeCoq

could perform based on this criterion, and the ALJ ultimately

concluded that there were significant jobs in the national economy

that LeCoq could perform based on the VE’s testimony, LeCoq has

failed to show that the ALJ committed reversible error at step

 

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7Although LeCoq attempts to challenge the ALJ’s analysis at

step five in other ways, each fails for the reasons given infra at

§ III(C)(1) and (2) and § IV.

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five.7 

2

Nor has LeCoq demonstrated Singletary-type error. Her

conclusory argument (consisting essentially of one sentence in her

brief, see P. Br. at 13) is insufficient to establish that the ALJ

was required to make a separate finding concerning her capability

of sustained employment. Cf. Frank v. Barnhart, 326 F.3d 618, 620

(5th Cir. 2003) (per curiam) (on rehearing) (holding that plaintiff

had failed to establish factual predicate required to necessitate

separate finding). 

C

LeCoq next argues that the ALJ’s failure to properly consider

her documented mental impairments created an underlying flaw that

tainted the step five analysis. She maintains that the ALJ posed

a hypothetical to the VE that included some mental restrictions

but did not include the limitation regarding dealing with the

public that Dr. Smith testified about. LeCoq also advances this

contention, which is difficult to decipher: “the ALJ apparently

relied on the improper conclusion that are limiting or individual

to simple tasks equated with unskilled work.” P. Br. at 13. As

best the court can determine, LeCoq is contending that the ALJ

apparently relied on an improper conclusion that limiting someone

 

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to simple tasks equates with the ability to perform unskilled work.

LeCoq has not shown reversible error on either basis.

1

Turning first to the issue of dealing with the public, the

court recognizes that, 

[u]nless the hypothetical question posed to

the [VE] 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.

Bowling, 36 F.3d at 436. Nevertheless, it is the ALJ who has the

duty to determine, based on the totality of the evidence, which

disabilities should be recognized. The ALJ’s decision in this case

does not indicate that he found that LeCoq was limited in dealing

with the public. Cf. id. at 436-47 (finding reversible error where

hypothetical stated that plaintiff’s kidney problem had been

resolved, but ALJ also found that plaintiff had severe kidney

problems and evidence supported finding of severe problems, and ALJ

misrepresented actual condition of plaintiff’s kidneys when posing

hypothetical to VE). And there is substantial evidence to support

a conclusion that LeCoq was not unduly limited in her ability to

deal with the public. 

 

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In his June 22, 1994 assessment, Dr. McCormick found that

LeCoq was not significantly limited in her ability to interact

appropriately with the general public. R. 70. Addressing the

topic of social functioning in his February 6, 1995 report, an

examining physician, Brian Espinoza, M.D. (“Dr. Espinoza”), noted

that, although LeCoq reported that she did not like to do anything

at that time, she was “taking some classes at Eastfield Community

College.” R. 371. Another examining physician, Daniel B. Pearson,

III, M.D. (“Dr. Pearson”), concluded on October 10, 1995 that LeCoq

had “some difficulty in social and occupational functioning, but

[was] generally functioning pretty well and has some meaningful

interpersonal relationships.” R. 377. The assessment of Dr.

McCormick and the evidence from Drs. Espinoza and Pearson provide

substantial evidence——i.e., more than a scintilla——to support a

conclusion that LeCoq was not unduly limited in dealing with the

public. Because LeCoq has not shown that the ALJ failed to

incorporate reasonably in the hypothetical all of LeCoq’s

disabilities that the ALJ recognized, she has not established

reversible error. See, e.g., Capers v. Barnhart, No.

3:03-CV-0693-D, slip op. at 16 (N.D. Tex. Feb. 3, 2004) (Fitzwater,

J.) (“Because the hypothetical question that the ALJ posed to the

VE contained all the limitations the ALJ found, and since the court

has held that substantial evidence supports the ALJ’s conclusion

that only these limitations apply, the VE’s testimony formed a

 

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proper basis for the ALJ’s conclusion that [plaintiff] is not

disabled under the Act.” (footnote omitted)).

2

LeCoq has also failed to show reversible error based on the

contention that the ALJ apparently relied on the improper

conclusion that limiting an individual to simple tasks equates with

the ability to perform unskilled work. She asserts that the jobs

on which the ALJ relied——cashier, ticket taker, and semi-skilled

security guard——each requires the ability to deal with people and

a reasoning level of 2 or above, whereas the Dictionary of

Occupational Titles (“DOT”) says that jobs involving only simple

tasks are defined as requiring a reasoning level of 1. LeCoq

maintains that the ALJ cannot rely on vocational testimony that is

at odds with the DOT without providing an explanation. She argues

that, because the ALJ did not ascertain the reasoning level of the

alternative jobs, the fact that the hypothetical was restricted to

simple tasks does not cure the flaw in the ALJ’s decision. She

also posits that, had the ALJ properly taken into account her

documented mental problems, there is a reasonable probability that

the alternative jobs would have been precluded. Although LeCoq’s

argument is not well developed, she appears to be contending that

the ALJ erroneously found that she could perform three jobs for

which she did not have the required level of reasoning and that

required the ability to deal with people. 

 

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Concerning her ability to reason, the court concludes that her

argument is insufficient to demonstrate reversible error. LeCoq’s

argument assumes that the ALJ found that she was limited to

performing simple tasks. The ALJ, however, made no such finding in

his decision. Rather, as the court explained supra at § III(B)(1),

the ALJ explicitly recognized during the hearing, and implicitly

found in his decision, that LeCoq met the requirements for

performing unskilled work. The court concluded that there was

substantial evidence to support such a finding. 

 Regarding the requirement that she have the ability to deal

with people, as discussed supra at § III(C)(1), substantial

evidence supports a conclusion that LeCoq was not unduly limited in

her ability to deal with the public. Therefore, her argument that

the jobs on which the ALJ relied require the ability to deal with

the public cannot serve as an adequate basis to disturb the

Commissioner’s decision.

IV

LeCoq contends the ALJ’s findings concerning her manipulative

limitations are not consistent with the entire testimony of the ME

on which the ALJ said he relied.

LeCoq asserts that, although Dr. Freeman first testified that

her hand impairment limited her ability to use her hand for both

repetitive and fine motions, he opined on cross-examination that

she could only occasionally, but not repetitively, engage in gross

 

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hand use, such as handling and grasping. LeCoq argues that the ALJ

ignored this part of Dr. Freeman’s testimony. She contends this

flaw was not cured by the VE’s testimony, in which she responded to

questions that asked her to consider no repetitive use of the hands

and no constant fine fingering. Based on the DOT definitions of

“occasional” (i.e., up to one-third of the time) and “repetitive”

(i.e., more than two-thirds of the time), she maintains that Dr.

Freeman’s testimony means that she could only use her hands for

gross manipulation for up to one-third of the workday, but the DOT

provides that the jobs of cashier, ticket taker, and security guard

require frequent handling. She also contends that on crossexamination the VE testified that the jobs of cashier and ticket

taker would have been precluded if the ability to use her hands was

restricted to less than occasional. LeCoq posits that, had the ALJ

posed a hypothetical to the VE that reflected the precise physical

limitations to which Dr. Freeman testified, and included the mental

limitations established in the record, the VE may have excluded all

the alternative jobs cited. LeCoq maintains that the Commissioner

did not meet her burden of proof at step five.

Dr. Freeman testified on cross-examination that, concerning

gross hand use, LeCoq’s physical impairments limited her to

“occasional, but not repetitive” handling and large grasping. R.

505-06. When presenting this evidence to the VE in his

hypothetical, the ALJ did not specifically mention LeCoq’s

 

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restriction to “occasional” use, but he did state that she was

precluded from repetitive use of her hands. R. 512. In response,

the VE excluded jobs that required repetitive use, indicating that

unskilled cashiering positions in “less busy environments” (e.g.

check cashing center and “taking money and giving out tickets” at

movie theaters) and unskilled security guard (those who do not

carry weapons and generally work in environments like office

buildings) would be available. See R. 512-14.

On cross-examination, the VE stated that she was addressing

fine finger manipulation, handling and grasping objects, and

overhead reaching limited to occasionally. R. 514-15. The VE

testified that the jobs she mentioned were viable based on these

limitations. R. 515. She confirmed that these jobs numbered

40,000 sedentary and 200,000 light in Texas, of which

(conservatively) 20% to 25% existed in the North Texas region. R.

515. She opined that, if the limit on LeCoq’s ability to use her

hands for fine and gross manipulation was restricted to less than

occasional, this would affect her ability to perform the cashiering

jobs but not significantly limit the security guard position. R.

517. 

LeCoq has failed to demonstrate reversible error. Although

the hypothetical did not specify the limitation of occasional

handling, the VE made clear during cross-examination that each of

the jobs she cited could be performed by someone restricted to

 

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8In her reply brief, LeCoq also appears to contend that, under

SSR 00-4p, the ALJ was obligated to inquire affirmatively about

conflicts between the VE’s testimony and the DOT, and that he was

permitted to rely on contrary VE testimony only where there was a

reasonable explanation given for the conflict. This argument is

one that LeCoq raises for the first time in her reply brief as to

the issue of handling or grasping objects, and the court declines

to consider it. See supra note 1. 

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occasional handling. Thus her testimony is consistent with the

limitations of handling to which Dr. Freeman testified, and LeCoq

cannot show that she was prejudiced by the ALJ’s hypothetical.

Moreover, the VE explained that, even if LeCoq’s abilities were

reduced below the level indicated by Dr. Freeman’s testimony to

work with less than occasional handling, there would still remain,

at the sedentary level, 12,000 security jobs in Texas and 200,000

such jobs in the United States that she could perform, and 23,000

jobs in Texas and 332,000 in the United States at the light level.

See R. 518. The record evidence therefore supports the ALJ’s

finding that the Commissioner met her burden of proof at step

five.8

 * * *

For the reasons set forth, LeCoq has failed to establish that

the ALJ committed reversible error. The decision of the

Commissioner is therefore AFFIRMED.

_________________________________

SIDNEY A. FITZWATER

UNITED STATES DISTRICT JUDGE

 

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