IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

SAN ANGELO DIVISION

§

PATSY LACOMBE, §

§

 Plaintiff, §

§

vs. § Civil Action No. 6:03-CV-066-C

§

§

JO ANNE B. BARNHART, §

Commissioner of Social Security, §

§

 Defendant. §

REPORT AND RECOMMENDATION

THIS MATTER is before the court upon Plaintiff’s complaint filed July 28, 2003, for

judicial review of the administrative decision of the Commissioner of Social Security denying

Plaintiff’s applications for a period of disability and disability insurance benefits under Title II of

the Social Security Act. Plaintiff filed a brief in support of her complaint on November 24, 2004,

Defendant filed her brief on December 20, 2004, and Plaintiff filed her reply brief on January 5,

2005. The United States District Judge, pursuant to 28 U.S.C. § 636(b), referred this matter to the

United States Magistrate Judge for report and recommendation, proposed findings of fact and

conclusions of law, and a proposed judgment. This court, having considered the pleadings, the

briefs, and the administrative record, recommends that the United States District Judge affirm the

Commissioner’s decision and dismiss the complaint with prejudice.

I. STATEMENT OF THE CASE

Plaintiff filed applications for a period of disability and disability insurance benefits on

June 27, 1997, alleging disability beginning October 2, 1992. Tr. 15, 80-82. Plaintiff’s applications

 

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were denied initially and upon reconsideration. Tr. 60-64, 68-71. Plaintiff filed a Request for

Hearing by Administrative Law Judge on October 30, 1997, and this matter came for hearing before

the Administrative Law Judge (“ALJ”) on February 24, 1998. Tr. 15, 29-57. Plaintiff, represented

by a non-attorney, testified in her own behalf. Tr. 31-48. Plaintiff’s husband, Robert LaCombe,

appeared and also testified. Tr. 48-51. Diane Harsnickle, a vocational expert (“VE”), appeared and

testified as well. Tr. 51-56. The ALJ issued a decision unfavorable to Plaintiff on April 23, 1998.

Tr. 12-24. 

In his opinion, the ALJ noted that the specific issue was whether Plaintiff was under a

disability within the meaning of the Social Security Act. He found that Plaintiff last met the

disabaility insured status requirements on September 30, 1997; therefore, for entitlement to disability

insurance benefits, Plaintiff’s period of disability must be shown to have begun as of or prior to that

date. He found that Plaintiff had not engaged in substantial gainful activity at any time since

October 2, 1992. Tr. 16, 22. He found that Plaintiff had “severe” impairments, including a

herniated disc; carpal tunnel in both wrists; headaches; blurred and double vision; pain in head,

neck, back, wrists, and legs; numbness and tingling in extremities; loss of coordination; and overall

weakness. Tr. 16. He further found that Plaintiff’s severe impairments, singularly or in

combination, were not severe enough to meet or equal in severity any impairment listed in the

Listing of Impairments, 20 C.F.R. Part 404, Subpt. P, App. 1. Tr. 16, 22-23. Therefore, the ALJ

was required to determine whether Plaintiff retained the residual functional capacity (“RFC”) to

perform her past relevant work or other work existing in the national economy. Tr. 17-22.

The ALJ acknowledged that in making the RFC assessment, he must consider all symptoms,

including pain, and the extent to which these symptoms can be reasonably accepted as consistent

with the objective medical evidence and other evidence, based on the requirements of Social

Security Ruling 96-7p. Tr. 19. 

 

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The ALJ found that Plaintiff could not return to her past relevant work as an office worker

in accounts payable/receivable, a sales representative with a cosmetic company, a cosmetic

associate, a typesetter, or a grocery checker. Tr. 21, 23. He noted that Plaintiff, at 50 years of age,

was considered a “person closely approaching advanced age” with a G.E.D. Id.

 The ALJ found that Plaintiff retained the RFC to perform the physical exertional

requirements of sedentary work activity, limited by the need to intermittently sit or stand, not

necessarily at will, but at times other than lunch and breaks; to work that requires no more than

occasional use of the upper extremities for repetitive activity; and to work that does not require

repetitive neck flexion, rotation, and extension. Having found that Plaintiff’s exertional limitations

did not allow her to perform the full range of sedentary work, the ALJ turned to the testimony of the

VE in determining whether Plaintiff was capable of making a vocational adjustment to other work

despite her severe impairments. Tr. 22, 23-24. The ALJ relied upon the testimony of the VE who

indicated that a hypothetical person of Plaintiff’s age, with Plaintiff’s RFC and vocational history,

could perform work which exists in the national economy, including the jobs of telephone solicitor,

with 1,800,000 jobs nationally, and information clerk, with 180,000 jobs nationally. Id. The ALJ,

therefore, concluded that Plaintiff was not disabled within the meaning of the Social Security Act

at any time through September 30, 1997. Tr. 24. 

On May 21, 1998, Plaintiff submitted a Request for Review of Hearing Decision/Order,

which included a request for a copy of the hearing tape. Tr. 10. The requested tape was furnished

and action on the case was deferred for 45 days. Tr. 9. The Appeals Council issued its opinion on

February 25, 2000, indicating that although it had considered the additional evidence and the

contentions raised in Plaintiff’s Request for Review, it nevertheless concluded that there was no

basis for changing the ALJ’s decision and denied Plaintiff’s request. Tr. 6-8. The ALJ’s decision,

therefore, became the final decision of the Commissioner.

 

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Plaintiff requested a time extension and, on May 21, 2000, the Appeals Council extended the

time within which a civil action could be commenced for a period of 30 days from the date of receipt

of the letter. Tr. 4. On June 21, 2001, Plaintiff filed a complaint in the United States District Court

for the Northern District of Texas. Tr. 244-45. The United States District Judge granted the

Defendant’s motion to reverse and remand on February 15, 2002, and remanded this matter to the

commissioner for further administrative proceedings. Tr. 252. On April 24, 2002, the Appeals

Council ordered the case remanded to an ALJ for further proceedings. Tr. 254-55. 

This matter came for a second hearing before the ALJ on September 23, 2002. Tr. 235, 530-

56. Plaintiff was represented by an attorney and testified in her own behalf. Tr. 532-41, 553-56.

Carol Bennett, a VE, appeared and testified as well. Tr. 542-53. The ALJ issued a decision

unfavorable to Plaintiff on December 27, 2002. Tr. 232-40.

In his decision, the ALJ found that Plaintiff had not engaged in substantial gainful activity

since October 2, 1991, her alleged onset date of disability. Tr. 236. He found that Plaintiff had

severe impairments, including back pain and carpal tunnel syndrome. Id. He noted that although

Plaintiff alleged disability beginning on October 2, 1992, there was no medical evidence prior to

1996. Tr. 236-37. The ALJ discussed Plaintiff’s treatment by Dr. Chris W. Vanderzant, a treating

physician. Id. 

The ALJ noted that although Plaintiff alleged disability as a basis for her depression, there

were no objective medical findings prior to her last-insured date. Tr. 237. He noted Plaintiff’s

testimony that she began taking antidepressants in 1994 or 1995, which was not supported by the

record. Id. The ALJ concluded that Plaintiff did not have a medically determinable mental

impairment prior to September 30, 1997. Id.

The ALJ discussed Plaintiff’s testimony that she lives with her disabled husband and his

elderly mother, that he drives her around and does most of the house work, and that she can dress

 

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1 In its opinion, the Appeals Council noted that the VE also identified the job of a

telephone solicitor, with 4,000 jobs in Texas and 100,000 jobs in the national economy. Tr. 228.

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herself and help care for her mother-in-law. Tr. 238. He also noted that Plaintiff testified that she

has suffered from severe headaches for years and that another problem is severe incontinence, an

allegation which was not supported by the record. Id. He noted that no medical evidence supported

her testimony, that at least one of Plaintiff’s physicians indicated that he could not find anything to

explain Plaintiff’s symptoms, and that none of her doctors had opined that she was under a disability

at any time prior to the expiration of her insured status. Id. He also noted that Plaintiff was

dismissed from her prescribed physical therapy program in part due to failure to regularly attend.

Id. The ALJ thus found that Plaintiff’s testimony was not credible. Id.

The ALJ found that Plaintiff retained the RFC for sedentary work activity, limited by the

need to sit or stand intermittently while in the performance of job duties; no complex work

instructions, due to her educational level; no more than occasional use of the upper extremities for

repetitive activity; and no repetitive flexion or extension of the neck. Id. The ALJ noted that

Plaintiff could not return to any of her past relevant work. Id. 

The ALJ noted the testimony of the VE, who indicated that a hypothetical person of

Plaintiff’s educational background, past work experience, and RFC could perform the job duties of

information clerk, with 45,000 jobs in the national economy and 2,100 jobs in Texas. Tr. 238-39.1

The ALJ, therefore, concluded that Plaintiff was not disabled within the meaning of the Social

Security Act at any time through September 30, 1997. Tr. 239. 

On January 6, 2003, Plaintiff indicated her decision to forgo further administrative appeals

and submitted her exceptions to the Appeals Council. Tr. 230-31. The Appeals Council issued a

decision on May 28, 2003, discussing Plaintiff’s exceptions and concluding that there was no basis

for the Appeals Council to assume jurisdiction. Tr. 227-29. The decision of the ALJ, therefore,

 

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became the final decision of the Commissioner after remand by the court. Tr. 228. On July 28,

2003, Plaintiff commenced this action seeking judicial review of the Commissioner’s determination

that Plaintiff was not disabled.

II. STANDARD OF REVIEW

An individual may obtain a review of the final decision of the Commissioner by a United

States District Court. 42 U.S.C. § 405(g). The court’s review of a denial of disability benefits is

limited to determining whether the decision is supported by substantial evidence and whether the

Commissioner applied the proper legal standards. Waters v. Barnhart, 276 F.3d 716, 718 (5th Cir.

2002)(citing Estate of Morris v. Shalala, 207 F.3d 744, 745 (5th Cir. 2000)). Substantial evidence

“is more than a mere scintilla and less than a preponderance,” and includes “such relevant evidence

as a reasonable mind might accept as adequate to support a conclusion.” Masterson v. Barnhart, 309

F.3d 267, 272 (5th Cir. 2002); Watson v. Barnhart, 288 F.3d 212, 215 (5th Cir. 2002). The court

will not re-weigh the evidence, try the questions de novo, or substitute its judgment for the

Commissioner's, even if the court believes that the evidence weighs against the Commissioner's

decision. Masterson, 309 F.3d at 272. “[C]onflicts in the evidence are for the Commissioner and

not the courts to resolve." Id. (quoting Newton v. Apfel, 209 F.3d 448, 452 (5th Cir. 2000)).

 In order to qualify for disability insurance benefits or supplemental security income, a

claimant has the burden of proving that he or she has a medically determinable physical or mental

impairment lasting at least 12 months that prevents the claimant from engaging in substantial gainful

activity, which is defined as work activity involving significant physical or mental abilities for pay

or profit. Newton, 209 F.3d at 452. See 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. § 404.1527(a)(1).

The Commissioner follows a five-step process for determining whether a claimant is disabled

within the meaning of the Social Security Act. 20 C.F.R. § 404.1520; Masterson, 309 F.3d at 271;

 

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Newton, 209 F.3d at 453. In this case, the ALJ found at step 5 that Plaintiff was not disabled

because she retained the ability to perform work in the national economy. Tr. 240.

III. DISCUSSION

Plaintiff claims that the ALJ’s determination of Plaintiff’s RFC is not supported by

substantial evidence because the ALJ erred in finding that her urinary incontinence was not a

“severe” impairment. Plaintiff further argues that the ALJ failed to appropriately evaluate her

mental impairment, failed to incorporate limitations imposed by these impairments into the

hypothetical questions posed to the VE, and failed to make a finding as to Plaintiff’s ability to

maintain employment.

A. Whether the ALJ erred in finding that her urinary incontinence was not a “severe”

impairment and in evaluating restrictions imposed by this condition.

Plaintiff notes that the ALJ did not conclude that her urinary incontinence was a “severe”

impairment. Plaintiff alleges that, in finding that her urinary incontinence was not “severe,” the ALJ

applied an incorrect standard and his finding was not supported by substantial evidence. In making

his severity determination, the ALJ noted that “the second step of the process inquires whether the

claimant has a severe impairment, i.e., one which would have more than a slight effect on her ability

to engage in those basic work-related activities set forth in 20. C.F.R. § 404.1521(b),” and indicated

that Plaintiff “alleges disability due to back pain and carpel tunnel syndrome,” which the ALJ

concluded were “severe.” Tr. 236.

 A review of the record is required to determine whether there was substantial evidence that

Plaintiff’s urinary incontinence was not severe, taking into account the standards provided by the

severity regulation, as construed by the Fifth Circuit in Stone v. Heckler, 752 F.2d 1099 (5th Cir.

1985), and whether the ALJ applied the correct legal standard in making his severity finding.

 

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A physical or mental impairment is in turn defined as “an impairment that results from

anatomical, physiological, or psychological abnormalities which are demonstrable by medically

acceptable clinical and laboratory diagnostic techniques.” Anthony v. Sullivan, 954 F.2d 289, 293

(5th Cir., 1992) (citing 42 U.S.C. § 423(d)(3)). The existence of an impairment does not in itself

establish disability; a claimant is disabled only if she is “incapable of engaging in any substantial

gainful activity.” Milam v. Bowen, 782 F.2d 1284, 1286 (5th Cir.1986). Under the Social Security

Regulations, the severity of an impairment or impairments is considered at the second step of the

five-step sequential analysis. See 20 C.F.R. § 404.1520. A claimant must show that he or she has

a severe medical impairment before the claimant can be determined disabled. 20 C.F.R.

§ 404.1520(a)(4)(ii). The regulations further provide that an impairment must significantly limit the

person’s ability to do basic work activities in order to be considered severe. 20 C.F.R.

§ 404.1520(c). Thus, 

If you do not have any impairment or combination of impairments which significantly limits

your physical or mental ability to do basic work activities, [the Commissioner] will find that

you do not have a severe impairment and are, therefore, not disabled.

Id.

The Supreme Court held that this “severity regulation” is valid on its face and “is not

inconsistent with the statutory definition of disability.” Bowen v. Yuckert, 482 U.S. 137, 146, 154,

107 S.Ct. 2287, 2293, 2298 (1987).

The Fifth Circuit has considered the severity regulation, both before and after the Supreme

Court’s decision in Bowen v. Yuckert. In Stone v. Heckler, 752 F.2d 1099 (5th Cir. 1985), the court

approved of an earlier construction of the severity regulation that set this standard for determining

whether a claimant’s impairment is severe:

[A]n impairment can be considered as not severe only if it is a slight abnormality [having]

such minimal effect on the individual that it would not be expected to interfere with the

individual’s ability to work, irrespective of age, education or work experience.

 

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Id. at 1101 (quoting Brady v. Heckler, 724 F.2d 914, 920 (11th Cir. 1984). In Loza v. Apfel, 219

F.3d 378 (5th Cir. 2000), the court held that the standard set forth in Stone remained the correct

standard. Id. at 392. However, the Commissioner may require a claimant to make a de minimis

showing that her impairment is severe enough to interfere with her ability to do work under this

standard. Anthony, 954 F.2d at 293 n.5. 

The court in Stone specifically required that ALJs and Appeals Councils in the Fifth Circuit

must set forth the correct standard in their decisions by reference to the Stone opinion or to another

opinion of the same effect or by including an express statement in the decision that the construction

given to the severity regulation is the construction used in Stone. 752 F.2d at 1106. Failure to do

so will result in the court’s assumption that the ALJ or Appeals Council has applied an incorrect

standard. Id. Moreover, the claimant need only make a de minimis showing that her impairment is

severe enough to interfere with her ability to do work to satisfy this standard. Anthony, 954 F.2d

at 294. 

In making his severity finding, the ALJ specifically referred to the standard set forth in Stone,

indicating that he considered whether Plaintiff’s impairments “would have more than a slight effect

on her ability to engage in” basic work-related activities. Tr. 236. The ALJ, however, did not cite

to Stone or another opinion of the same effect; rather, he quoted the standard using the language set

forth in Stone. Compare Tr. 236 with Stone, 752 F.2d at 1106. The ALJ noted that although

Plaintiff alleged that one of her problems was severe incontinence, such allegation was not supported

in the record. Tr. 238. The ALJ further found that Plaintiff’s testimony was not credible. Id.

Plaintiff argues that the ALJ used the wrong standard and that such failure requires remand

to the Commissioner. In Stone the Fifth Circuit was concerned that too many claimants were being

found “not disabled” at an early stage, that is, step 2 of the evaluation process. Step 2 requires the

ALJ to determine whether a claimant has any impairments that are “severe.” If the ALJ finds that

 

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a claimant does not have any “severe” impairments at step 2, the evaluation process ends without

proceeding to steps 3-5, and the claimant is determined to be “not disabled.” The Fifth Circuit in

Stone explained the reason for the standard that it had established: 

The prevailing idea, then, among the courts and Congress, is that some impairments

are so slight that the ability of the claimant to work can be decided without a full

evaluation of vocational factors. The factfinder is entitled to follow a sequential

process that disposes of those cases at that early stage. But it is impermissible to

make that disposition on the basis of a standard of severity that denies disability

benefits to claimants who are in fact unable to perform substantial gainful activity.

 752 F.2d at 1102-03. 

Due to its concern and recent experience regarding cases that had been disposed of on the

basis of nonseverity (i.e., at step 2), the Fifth Circuit gave notice of how it would thereafter

determine whether the proper standard was applied and the sanction for noncompliance.

In view of both the [Commissioner’s] position in this case and our recent experience

with cases where the disposition has been on the basis of nonseverity, we will in the

future assume that the ALJ and Appeals Council have applied an incorrect standard

to the severity requirement unless the correct standard is set forth by reference to this

opinion or another of the same effect, or by an express statement that the

construction we give to 20 C.F.R. § 404.1520(c)(1984) is used. Unless the correct

standard is used, the claim must be remanded to the [Commissioner] for

reconsideration.

Stone, 752 F.2d at 1106.

Stone appears to require remand in any case in which the ALJ fails to properly reference the

Stone standard. The court’s subsequent rulings, however, have clarified the holding to require

remand only when the ALJ failed to reference the Stone standard and the case was adjudicated at

step 2 of the sequential evaluation process. See Chaparro v. Bowen, 815 F.2d 1008 (5th Cir. 1987);

Jones v. Bowen, 829 F.2d 524 (5th Cir. 1987); Lopez v. Bowen, 806 F.2d 632 (5th Cir. 1986);

McClatchy v. Barnhart, 2004 WL 2810100 (W.D. Tex.).

The claimant argued in Chaparro that the Commissioner was presumed to have applied the

incorrect standard because no reference was made to Stone. The issue was waived because it was

 

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not raised before the district court. The court stated that, in any event, the “case did not turn on

whether or not Chaparro’s impairment was severe, but on whether Chaparro could return to his past

relevant work – an inquiry unaffected by the test set forth in Stone.” Chaparro, 815 F.2d at 1011.

Thus Chaparro recognized that “the test set forth in Stone” does not apply to a case decided on

whether a claimant could return to his past relevant work, a matter determined at step 4. The

claimant’s argument was considered irrelevant to the disposition of his case which advanced to step

4 for determination.

In Jones the claimant argued that the court failed to apply the correct legal standard in

determining the severity of his impairments as required in Stone. 829 F.2d at 527 n.1. He argued

that his hypertension was characterized as “mild” which resulted in the denial of benefits. Id. The

court held that there was no error similar to that found in Stone “where the claimant’s request for

benefits was prematurely denied based on an improper determination of “non-severity.” Id. Thus

the court recognized that the Stone standard was based upon, and applicable only to, “premature”

denials of disability which are based on improper determinations of “non-severity.” That occurs

only at step 2.

The claimant in Lopez cited Stone in support of his argument that the ALJ erred in the

determination of the severity of his impairments. 806 F.2d at 634 n.1. The court held that Stone did

not apply because the ALJ did find that Lopez had severe impairments. Id. Claimants found to have

severe impairments advance beyond step 2 in the evaluation process. Thus the court held that the

Stone standard does not apply to cases that advance beyond step 2.

It follows that in cases adjudicated at step 3, step 4, or step 5 of the evaluation process, the

ALJ’s failure to make reference to the standard established in Stone does not, without more, require

remand.

 

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In this case, the ALJ’s opinion sufficiently demonstrates that he applied the correct standard

in determining the severity of Plaintiff’s impairments. Moreover, this case was adjudicated at step

5 based on the ALJ’s determination that there were a significant number of jobs in the national

economy that she could perform. Tr. 239-40. I find that the ALJ did not apply an incorrect

standard or err by failing to cite to Stone or one of its progeny in making his severity finding.

Plaintiff further alleges that the record demonstrates that her urinary incontinence was a

“severe” impairment, noting that the record includes various references to her complaints. The

record, indeed, indicates that Plaintiff reported a history of urinary incontinence to her care

providers. See, e.g., Tr. 170, 181, 182, 296, 311, 315, 333, 424, 512. Plaintiff testified that her

incontinence was aggravated by her coughing, and at the second hearing testified that sneezing,

coughing, getting tired, and not being able to use the restroom frequently brings on incontinence.

Tr. 42, 539. However, other than the notations by her providers of her complaints of urinary

incontinence, the record contains no evidence indicating that any such incontinence required medical

treatment or affected her attempts at work since October 2, 1992. Dr. Vanderzant, a treating

physician, noted no loss of bladder control on May 6, 1997. Tr. 165. Plaintiff testified that the

incontinence was most severe in 1992, after she injured her back, and that she uses pads and

overnight protection at night for her incontinence. Tr. 539. She also testified that she had not been

given any medicine or treatment for incontinence. Id.

Plaintiff argues that the ALJ failed to consider the evidence as to her incontinence and should

have discussed such evidence, rather than selectively discussing only the evidence which favors his

ultimate conclusion. The ALJ noted in his opinion that Plaintiff’s allegation of a severe problem

with incontinence was not supported by the record. Tr. 238. In making his credibility

determination, he noted that there was no medical evidence to support her testimony and further

noted that at least one doctor admitted that he could not find anything to explain her symptom. Id.

 

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Pursuant to Social Security Ruling (“SSR”) 96-3p, in making the step 3 determination of the severity

of an impairment, “evidence about the functionally limiting effects of an individual's impairment(s)

must be evaluated in order to assess the effect of the impairment(s) on the individual's ability to do

basic work activities.” Plaintiff’s record and her testimony do not indicate any specific limitations

imposed by her allegations of urinary incontinence. Moreover, an “impairment” must result from

“anatomical, physiological, or psychological abnormalities that can be shown by medically

acceptable clinical and laboratory diagnostic techniques.” See SSR 96-4p. The existence of a

medically determinable physical or mental impairment must be established by medical evidence

consisting of signs, symptoms, and laboratory findings, and the existence of an impairment cannot

be established on the basis of symptoms alone. SSR 96-4p; 20 C.F.R. § 404.1508. Despite

Plaintiff’s reports of a history of incontinence, the medical record and Plaintiff’s testimony

demonstrate that her incontinence was not a medically determinable impairment.

Plaintiff argues that she is not claiming that she is disabled by her incontinence, only that it

meets the severity requirements. Pl. Reply at 1-2. However, 20 C.F.R. § 404.1520 notes that the

severity of medically determinable impairments is evaluated at step 2 of the sequential evaluation

process. See 20 C.F.R. § 404.1520 (a)(4)(ii). See also, 20 C.F.R. § 404.1508 (describing what is

needed to show an impairment). The record demonstrates that the ALJ did not err in finding that

Plaintiff’s urinary incontinence was not “severe.” The record also demonstrates that the ALJ did

not err by failing to incorporate any limitations imposed by Plaintiff’s urinary incontinence into his

RFC finding because the record does not reflect any limitations imposed by this condition. The

ultimate issue is whether the ALJ’s decision is supported by substantial evidence. A review of the

record in this matter indeed “yields such evidence as would allow a reasonable mind to accept the

conclusion reached by the ALJ.” Loza, 219 F.3d at 393. The ALJ did not err in evaluating

Plaintiff’s urinary incontinence.

 

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B. Whether the ALJ erred in evaluating Plaintiff’s mental impairment.

Plaintiff alleges that the ALJ erred in evaluating her mental impairment as required by the

Appeals Council, failed to obtain a consultative examination, and failed to consider and incorporate

limitations imposed by this impairment into his RFC finding. 

Upon remand of this matter from the District Court to the Commissioner, the Appeals

Counsel noted that “a careful review of the record reveals that the medical evidence supports a

finding that the claimant’s depression is severe,” and indicated that the ALJ should obtain updated

records from the claimants mental health facility and, if necessary, obtain a consultative mental

status examination to clarify the severity of Plaintiff’s mental impairment. Tr. 254-55. In his

opinion, the ALJ concluded that Plaintiff did not have a medically determinable mental impairment

prior to September 30, 1997. Tr. 237. The record contains the records of Plaintiff’s mental health

treatment providers. Tr. 192-219. The ALJ did not order a consultative mental examination.

In his opinion, the ALJ noted that although Plaintiff alleged depression as one basis for

disability, there was no evidence in the medical record reporting problems of depression prior to the

expiration of her insured status on September 30, 1997. Tr. 237. Plaintiff notes that she sought

treatment for depression only two months after expiration of her insurance benefits. Pl. Brief at 12.

She argues that “her symptomolgy [sic] very easily could have existed prior to that date.” Pl. Brief

at 13.

In order to prove that she is entitled to disability benefits, Plaintiff must not only prove that

she is disabled but that she became disabled prior to the expiration of her insured status. Anthony,

954 F.2d at 295; Owens v. Heckler, 770 F.2d 1276, 1280 (5th Cir.1985). Any impairment which had

its onset or became disabling after the special earnings test was last met cannot serve as the basis

for a finding of disability. Owens, 770 F.2d at 1280. Factors relevant to the determination of the

 

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2 The essential feature of dysthymic disorder is a “chronically depressed mood that

occurs for most of the day more days than not for at least two years.” See generally, American

Psychiatric Assoc., Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) at 376-77.

3 The GAF score on Axis V is for reporting the client’s “psychological, social, and

occupational functioning.” See American Psychiatric Assoc., Diagnostic and Statistical Manual of

Mental Disorders (4th ed. 1994) at 32. This report of overall functioning is noted to be “useful in

planning treatment and measuring its impact, and in predicting outcome.” Id.

4 A GAF score of 41-50 indicates “serious symptoms” such as suicidal ideation, or any

“serious impairment in social, occupation, or school functioning,” such as inability to keep a job or

having no friends. American Psychiatric Assoc., Diagnostic and Statistical Manual of Mental

Disorders (4th ed. 1994) at 32.

5 The DSM-IV defines a GAF of 51-60 as moderate symptoms (e.g. flat effect,

circumstantial speech, and occasional panic attacks) or moderate difficulty in social, occupational,

or school functioning (e.g. few friends, conflicts with peers or co-workers). American Psychiatric

Assoc., Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) at 32.

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date of disability include “the individual's declaration of when her disability began, her work history,

and available medical history.” Ivy v. Sullivan, 898 F.2d 1045, 1048 (5th Cir. 1990).

The record demonstrates that Plaintiff sought treatment for her mental condition and

underwent a psychiatric evaluation in December 1997. Tr. 201-04. Dr. Diaz’ impression was of

dysthymic disorder2

 and pain disorder associated with both psychological factors and general

medical condition on Axis I, with a current Global Assessment of Functioning (“GAF”)3 score of

50,4

 with a GAF of 605 in the previous year. Tr. 205. Dr. Diaz reported that Plaintiff appeared

mildly depressed at the time of his examination. Id. The record contains no other notations

indicating treatment or complaints of depression prior to the expiration of Plaintiff’s insured status.

Plaintiff testified at the second hearing that she started using antidepressants in 1994 or 1995. Tr.

540. However, the record contains no references to such treatment. 

Noncontemporaneous medical records are relevant to the determination of whether onset

occurred on the date alleged by the claimant and it may bear upon the severity of the claimant's

condition before the expiration of his or her insured status. Ivy, 898 F.2d at 1049 (internal citations

 

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omitted). The ALJ appropriately discussed Plaintiff’s mental health treatment subsequent to the

expiration of her insured status. Tr. 237. However, such records do not demonstrate that Plaintiff’s

mental health condition was disabling during the relevant period, nor do they demonstrate

limitations imposed by such condition prior to September 30, 1997. Plaintiff argues that her

symptomology could have existed prior to this date is simply not supported by the record. The ALJ

specifically found that Plaintiff did not have a medically determinable mental impairment prior to

the expiration of her insured status. Id. While the RFC indeed includes limitations imposed by all

impairments, severe or not, the ALJ’s determination that Plaintiff’s depression was not a medically

determinable mental impairment prior to the expiration of her insured status is supported by

substantial evidence in the record, and the record does not demonstrate limitations imposed by such

condition before September 30, 1997. Where the ALJ has determined that Plaintiff has a medically

determinable mental impairment, he is required to evaluate the degree of functional loss imposed

by Plaintiff’s mental impairments, as set forth in 20 C.F.R.§§ 404.1520a and 416.920a. Here, the

ALJ found that Plaintiff did not have a medically determinable mental impairment during the

relevant period and was thus not required to evaluate the degree of functional loss imposed by such

impairment.

Plaintiff argues that the ALJ should have obtained a consultative medical examination which

was necessary to determine when Plaintiff’s mental condition became a severe impairment. Pl.

Reply at 4. The ALJ has a duty “‘to develop the facts fully and fairly relating to an applicant's claim

for disability benefits.’” Boyd v. Apfel, 239 F.3d 698, 708 (5th Cir. 2001)(quoting Newton, 209 F.3d

at 458). The claimant has the burden to prove that he is disabled within the meaning of the Social

Security Act. Fraga v. Bowen, 810 F.2d 1296, 1301 (5th Cir. 1987). An ALJ must order a

consultative evaluation when such an evaluation is necessary to enable the ALJ to make the

disability determination. Brock v. Chater, 84 F.3d 726, 728 (5th Cir. 1996)(citing Turner v.

 

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Califano, 563 F.2d 669, 671 (5th Cir. 1977)). A consultative evaluation becomes “necessary” only

when the claimant presents evidence sufficient to raise a suspicion concerning a non-exertional

impairment. Brock, 84 F.3d at 728 (citing Jones v. Bowen, 829 F.2d 524, 526 (5th Cir. 1987)).

Moreover, “isolated comments by a claimant are insufficient, without further support, to raise a

suspicion of non-exertional impairment.” Brock, 84 F.3d at 729 (citing Pierre v. Sullivan, 884 F.2d

799, 802-03 (5th Cir. 1989)). Like the claimant in Brock, the record demonstrates that Plaintiff did

not mention non-exertional impairments in her original request for benefits; never sought medical

treatment for such impairments prior to the expiration of her insured status; and made only isolated

comments at the first hearing indicating that she felt angry and worthless and had crying spells.

Brock, 84 F.3d at 728; Tr. 46. Plaintiff specifically testified at that hearing that her biggest problem

was the pain she had in her back and legs. Tr. 40. Therefore, this court finds that Brock's

allegations of non-exertional impairments were the kind of isolated comments which are insufficient

to raise a suspicion of non-exertional impairment. After remand, the ALJ obtained Plaintiff’s mental

health treatment records. The record demonstrates that the ALJ was not required to order a

consultative examination in order to fulfill his duty to adequately develop the record.

This court may not, in any event, reverse the decision of an ALJ for failure to fully and fairly

develop the record unless the claimant shows that he or she was prejudiced by the ALJ's failure.

Carey v. Apfel, 230 F.3d 131, 142 (5th Cir. 2000)(citing Brock, 84 F.3d 726). In order to establish

prejudice, a claimant must demonstrate that he or she “could and would have adduced evidence that

might have altered the result.” Carey, 230 F.3d at 142 (quoting Kane v. Heckler, 731 F.2d 1216,

1220 (5th Cir. 1984)). Plaintiff argues that she has shown prejudice because “[e]vidence adduced

by a psychological or psychiatric evaluation could have yielded how far in the past Plaintiff’s severe

symptoms of depression existed.” Pl. Reply at 4. Plaintiff’s testimony, her other records, and her

arguments fail to demonstrate that he “could and would have adduced evidence that might have

 

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altered the result.” Brock, 84 F.3d at 728-29. In this case, the ALJ met his duty to develop the

record, and Plaintiff has failed to demonstrate that she was prejudiced. The failure to obtain a

consultative mental examination in this matter does not provide a basis for remand. Brock, 84 F.3d

at 728. 

Plaintiff alleges that the ALJ erred by failing to incorporate all of Plaintiff’s impairments and

associated limitations into the hypothetical question posed to the VE. A vocational expert is called

to testify because of his familiarity with job requirements and working conditions. Vaughan v.

Shalala, 58 F.3d 129, 132 (5th Cir. 1995) (citing Fields v. Bowen, 805 F.2d 1168, 1170 (5th

Cir.1986)). “The value of a vocational expert is that he is familiar with the specific requirements

of a particular occupation, including working conditions and the attributes and skills needed.” Id.

 In testifying, a vocational expert “is able to compare all the unique requirements of a specified job

with the particular ailments a claimant suffers in order to reach a reasoned conclusion whether the

claimant can perform the specific job.” Fields, 805 F.2d at 1170.

 Both the ALJ and Plaintiff’s representative questioned the VE about whether a person who

needed to use a restroom every hour or half-hour could perform the jobs identified. Tr. 547-48. The

VE testified that if a hypothetical person had to use the restroom more frequently than every halfhour, it could lower production and affect the number of telephone solicitor jobs. Tr. 549. 

Plaintiff argues that the ALJ created a “random limitation in concentration due to Ms.

LaCombe’s education level,” which was unfounded. Plaintiff argues that rather than including a

concentration limitation, the ALJ should have ordered a consultative mental status examination. The

limitation to jobs with no complex work instructions, which the ALJ incorporated into his RFC, was

consistent with Plaintiff’s complaints of inability to concentrate and confusion (Tr. 34), with the

 

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examination of the VE at the first hearing by Plaintiff’s representative (Tr. 56), and with Plaintiff’s

testimony at the second hearing (Tr. 541.

The ALJ is not required to incorporate limitations into the hypothetical questions presented

to the VE that he did not find to be supported in the record. See Morris v. Bowen, 864 F.2d 333, 336

(5th Cir. 1988). The record demonstrates that the ALJ properly incorporated those limitations that

he accepted, including work at the sedentary level limited by the need to sit or stand on an

intermittent basis, though not at will; no more than occasional use of the upper extremities for

repetitive activities; and no complex instructions, into the hypothetical questions he posed to the VE.

Tr. 543-47. The record further demonstrates that Plaintiff’s representative had the opportunity to

further examine the VE and to obtain testimony on other claimed restrictions. The ALJ did not err

by failing to incorporate the accepted limitations into the hypothetical questions posed to the VE.

Plaintiff claims that the ALJ erred in failing to determine whether Plaintiff had the ability

to maintain employment, pursuant to Watson, 288 F.3d at 218 and Singletary v. Bowen, 798 F. 2d

818, 822 (5th Cir. 1986). In Singletary, the Fifth Circuit noted that “[a] finding that a claimant is

able to engage in substantial gainful activity requires more than a simple determination that the

claimant can find employment and that he can physically perform certain jobs; it also requires a

determination that the claimant can hold whatever job he finds for a significant period of time.”

Singletary, 798 F.2d at 822. The requirement for a finding of the ability to maintain employment

is not restricted to instances where non-exertional impairments are present.See Watson, 288 F. 3d

at 217-18.

In Watson, the claimant had degenerative disk disease, which caused the loss of movement

in his legs every few weeks and too much pain to work every few weeks. Watson, 288 F.3d. at 218.

In Wingo, the ALJ found that the claimant retained the residual functional capacity to perform the

 

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full range of work at the sedentary level and applied the Medical-Vocational Guidelines to direct

a finding of “not disabled.” Wingo v. Bowen, 852 F.2d 827, 829 (5th Cir. 1998). The ALJ in Wingo

did not consider medical evidence about several of the claimant’s impairments, as well as evidence

that she was often unable to leave her bed for days at a time. Id. In the instant matter, there is

nothing in the record to indicate that, prior to the expiration of her insured status, Plaintiff would

have been unable to maintain or sustain employment at the sedentary work level subject to the

limitations noted by the ALJ, and the ALJ appropriately considered the record as a whole in making

his RFC determination. This matter may be distinguished from Watson, Singletary, and Wingo. 

 The issue of maintaining employment was not raised by the facts in this case, and the ALJ’s

decision is supported by substantial evidence. 

Plaintiff also argues that the ALJ failed to give her testimony and subjective complaints

sufficient weight. 

Pursuant to Social Security Ruling 96-7p, the adjudicator is required to go through a two-step

process in evaluating a claimant’s symptoms. The ALJ must first:

consider whether there is an underlying medically determinable physical or mental

impairment . . . that could reasonably be expected to produce the individual’s pain

or other symptoms. . . . Second, once an underlying physical or mental impairment(s)

that could reasonably be expected to produce the individual’s pain or other

symptoms has been shown, 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. For this

purpose, whenever the individual’s statements about the intensity, persistence, or

functionally limiting effects of pain or other symptoms are not substantiated by

objective medical evidence, the adjudicator must make a finding on the credibility

of the individual’s statements based on a consideration of the entire case record.

In his opinion, the ALJ found that Plaintiff did not have a medically determinable mental

impairment. Tr. 237. The ALJ noted that a claimant’s statement alone is insufficient to establish

that he or she has a physical or mental impairment, citing 20 C.F.R. § 414.1528. Tr. 237. He noted

 

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Plaintiff’s subjective complaints regarding her physical and mental impairment(s) and extensively

discussed the evidence in the medical record in making his credibility finding. Id. The ALJ noted

Dr. Vanderzant, a treating physician, indicated that the CT scan of the brain was essentially normal,

that Plaintiff might have a mild “double crush” syndrome involving the left upper extremity with

signs of a mild left C7 radiculopathy and mild carpal tunnel syndrome, and that examination was

essentially negative for any objective abnormalities. Tr. 171, 237, 302. Dr. Vanderzant also

indicated that Plaintiff “has sensory symptoms without objective findings.” Tr. 165. The ALJ noted

that Plaintiff testified that her disabled husband does most of the housework and drives, although

Plaintiff is able to dress herself and to help with caring for her mother-in-law. Tr. 238. He noted

Plaintiff’s dismissal from physical therapy within two months, in part due to Plaintiff’s failure to

regularly attend sessions. Tr. 238. 

The task of weighing the evidence is the province of the ALJ. Chambliss v. Massanari, 269

F.3d 520, 523 (5th Cir. 2001). The relative weight to be given these pieces of evidence is within the

ALJ's discretion. Id. The record demonstrates that the ALJ considered and discussed Plaintiff’s

subjective allegations and testimony. The record further demonstrates that his credibility

determination was supported by substantial evidence in the record. He properly exercised his

responsibility as factfinder in weighing the evidence and in choosing to incorporate limitations into

his RFC assessment that were most supported by the record. Muse v. Sullivan, 925 F.2d 785, 790

(5th Cir. 1991). The ALJ did not err in considering Plaintiff’s subjective complaints, and he

appropriately considered the entire case record, “including the objective medical evidence, the

individual's own statements about symptoms, statements and other information provided by treating

or examining physicians or psychologists and other persons about the symptoms and how they affect

the individual, and any other relevant evidence in the case record,” SSR 96-7p, at *1-2 in making

 

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his credibility determination, and in determining the weight to give to each piece of evidence. The

ALJ included information about Plaintiff’s symptoms, medications, treatments, and limitations, both

as reported by Plaintiff and as reflected in the record. He incorporated limitations supported by the

record in making his RFC finding by limiting Plaintiff to sedentary level work subject to specified

limitations. Moreover, the ALJ’s RFC finding and evaluation of the record as a whole reflected his

credibility determination. Questions of credibility are the responsibility of the ALJ to resolve.

Masterson, 309 F.3d at 272. The ALJ did not err in weighing and considering Plaintiff’s testimony

and subjective complaints and reports of her symptoms and limitations, nor did he err by failing to

incorporate her claimed limitations into his RFC finding or into the hypothetical questions posed to

the VE. The ALJ did not apply incorrect legal standards and his decision was supported by

substantial evidence in the record.

IV. CONCLUSION

Based upon the foregoing discussion of the issues, the evidence, and the law, this court

recommends that the United States District Judge affirm the Commissioner’s decision and dismiss

the Plaintiff’s complaint with prejudice.

The United States District Clerk shall serve a true copy of these findings, conclusions, and

recommendation on the parties. Pursuant to Title 28, United States Code, Section 636(b)(1), any

party who desires to object to these findings, conclusions, and recommendation must serve and file

written objections within ten 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

 

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U.S. 140, 150, 106 S. Ct. 466, 472 (1985). Additionally, any failure to file written objections to the

proposed findings, conclusions, and recommendation within ten days after being served with a copy

shall bar the aggrieved party from appealing the factual findings and legal conclusions of the United

States Magistrate Judge that are accepted by the District Court, except upon grounds of plain error.

See Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc).

DATED this 9th day of August, 2005.

_____________________________________

PHILIP R. LANE

UNITED STATES MAGISTRATE JUDGE

 

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