1

 SSI benefits are not paid for any months of disability preceding the application for benefits. See 20

C.F.R. § 416.335. Accordingly, the relevant inquiry is whether Walker was disabled as of the date she applied for

benefits or thereafter.

Findings, Conclusions and Recommendation of 

the United States Magistrate Judge–Page 1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

ELOISE L. WALKER, §

PLAINTIFF, §

§

VS. § CIVIL ACTION NO. 4:04-CV-514-Y

§

JO ANNE B. BARNHART, §

COMMISSIONER OF SOCIAL SECURITY §

DEFENDANT. §

FINDINGS, CONCLUSIONS AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

AND

NOTICE AND ORDER

This case is referred to the United States Magistrate Judge pursuant to the provisions of Title

28, United States Code, Section 636(b). The Findings, Conclusions and Recommendation of the

United States Magistrate Judge are as follows:

FINDINGS AND CONCLUSIONS

A. STATEMENT OF THE CASE

Plaintiff Eloise Walker brings this action pursuant to Sections 405(g) and 1383(c)(3) of Title

42 of the United States Code for judicial review of a final decision of the Commissioner of the

Social Security Administration denying her claim for supplemental security income or SSI benefits

under Title XVI of the Social Security Act. She applied for SSI benefits on November 29, 1999,

alleging a disability onset date of February 1993.1

 

 

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The Social Security Administration denied Walker’s application for benefits both initially

and on reconsideration. Walker requested a hearing before an administrative law judge (the "ALJ"),

and ALJ Randolph D. Mason held a hearing on May 8, 2002 in Fort Worth, Texas. (Tr. 483).

Walker was represented by counsel. On May 28, 2002, the ALJ issued a decision that found Walker

capable of a modified range of light work activity limited to jobs requiring simple instructions or

instructions at the lower end of detail. (Tr. 15-21). The ALJ concluded that Walker was not

disabled or entitled to an award of SSI benefits because her current residual functional capacity did

not preclude her from performing her past relevant work. (Tr. 15-21). The Appeals Council denied

Walker’s request for review of her case, leaving the ALJ’s decision to stand as the final decision of

the Commissioner. (Tr. 4). 

B. STANDARD OF REVIEW

The Social Security Act defines a disability as a medically determinable physical or mental

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

gainful activity. 42 U.S.C. § 423(d), 1382c(a)(3)(A); McQueen v. Apfel, 168 F.3d 152, 154 (5th Cir.

1999). To determine whether a claimant is disabled, and thus entitled to disability benefits, a fivestep analysis is employed. 20 C.F.R. § 416.920. First, the claimant must not be presently working

at any substantial gainful activity. Substantial gainful activity is defined as work activity involving

the use of significant physical or mental abilities for pay or profit. 20 C.F.R. § 416.972. Second,

the claimant must have an impairment or combination of impairments that is severe. An impairment

or combination of impairments is severe if it significantly limits a claimant's physical or mental

ability to do basic work activities. 20 C.F.R. §§ 404.1520(c), 416.920(c). At the third step, disability

 

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will be found if claimant’s impairment or combination of impairments meets or equals an

impairment listed in the appendix to the regulations. Id. §§ 404.1520(d), 416.920(d). Fourth, if

disability cannot be found on the basis of claimant’s medical status alone, the impairment or

impairments must prevent the claimant from returning to his past relevant work. Id. §§ 404.1520(e),

416.920(e). And fifth, the impairment must prevent the claimant from doing any work, considering

the claimant's residual functional capacity, age, education, and past work experience. Id. §§

404.1520(f), 416.920(f); Crowley v. Apfel, 197 F.3d 194, 197-98 (5th Cir.1999). 

At steps one through four, the burden of proof rests upon the claimant to show he is disabled.

If the claimant satisfies this responsibility, the burden shifts to the Commissioner at step five of the

process to show that there is other gainful employment the claimant is capable of performing in spite

of his existing impairments. Crowley, 197 F.3d at 198. If the Commissioner meets this burden, the

claimant must then prove he in fact cannot perform the alternate work. Id. A finding at any point

in the five-step process that a claimant is disabled or not disabled is conclusive and terminates the

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

A denial of disability benefits is reviewed only to determine whether the Commissioner

applied the correct legal standards and whether the decision is supported by substantial evidence in

the record as a whole. Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995); Hollis v. Bowen, 837

F.2d 1378, 1382 (5th Cir. 1988). Substantial evidence is such relevant evidence as a responsible

mind might accept to support a conclusion. Boyd v. Apfel, 239 F.3d 698, 704 (5th Cir. 2001). It is

more than a mere scintilla, but less than a preponderance. Id. A finding of no substantial evidence

is appropriate only if no credible evidentiary choices or medical findings support the decision. Id.

 

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2 Walker sought disability benefits based on diabetes, peripheral neuropathy, hypertension, low bac pain,

degenerative bone disease, depression, arthritis, and anemia. In seeking judicial review, Walker challenges only the

ALJ’s assessment of her mental impairments, and a review of the administrative record will be limited accordingly.

Findings, Conclusions and Recommendation of 

the United States Magistrate Judge–Page 4

This Court may neither reweigh the evidence in the record nor substitute its judgment for the

Commissioner's, but will carefully scrutinize the record to determine if the evidence is present.

Harris v. Apfel, 209 F.3d 413, 417 (5th Cir.2000); Hollis, 837 F.2d at 1383.

C. ISSUES

1. Whether the assessment of Walker’s residual functional capacity (RFC) is supported

by substantial evidence.

2. Whether the ALJ gave adequate attention and weight to the opinions of treating and

non-treating medical sources.

3. Whether the ALJ fully developed the record regarding the vocational requirements

of Walker’s past relevant work.

D. ADMINISTRATIVE RECORD

1. Medical History2

 

Walker was interviewed at Tarrant County Mental Health and Mental Retardation (MHMR)

services on September 29, 1999. (Tr. 295). She complained of insomnia, appetite fluctuations,

memory and concentration difficulties, fatigue, and auditory and visual hallucinations. She also

reported suicidal thoughts of jumping out a window. (Tr. 293, 295). The MHMR clinician

diagnosed major depressive disorder. (Tr. 282). Walker was started on the medications Celexa and

Trazadone, and was seen on a monthly basis by Davinder Dhingra, M.D., for management of her

medications.

 

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Walker reported improvement in her sleep and appetite with treatment, but still experienced

hallucinations and feelings of depression. (Tr. 274-80). She thought some of her hallucinations

could be due to her other medications. (Tr. 277). The anti-psychotic medication Risperdal was

added to her treatment regimen because of her continued hallucinations. (Tr. 268).

Walker continued to report impaired concentration and memory problems. (Tr. 248-80).

She began attending computer and vocational training courses sponsored by the Texas Rehabilitation

Commission in 2000, but her progress was slow. (Tr. 268). In March 2000, Walker complained of

drowsiness as a side-effect of her medications.

 Walker submitted to a consultative psychiatric examination on April 3, 2000 with Peter

Christian Holm, M.D. (Tr .423). She report audiovisual hallucinations for the previous eight

months, but had not had any auditory hallucinations for about three weeks. She had experienced

visual hallucinations as recently as two days ago. Her medications had improved her mood and

decreased her crying spells, but had not helped with her hallucinations. (Tr. 423-24).

Walker was neatly dressed and groomed. She was cooperative during the interview, but eye

contact was somewhat diminished and psychomotor retardation was present. (Tr. 425). Her mood

was depressed, with a blunted affect. She denied any psychotic symptoms at the present time and

her thoughts were goal oriented, logical, coherent and relevant. Her memory was somewhat

impaired, but judgment was intact. (Tr. 425).

Walker lived alone and occasionally performed household chores. Her adult son did her

grocery shopping. (Tr .526). Walker attended school three days a week and sometimes went out

to eat or engaged in fun activities. She drove occasionally. She rarely read and her ability to cook

 

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3

 A GAF score is a standard measurement of an individual's overall functioning level "with respect only to

psychological, social, and occupational functioning." AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND

STATISTICAL MANUAL OF MENTAL DISORDERS 32 (4th ed. 1994)(DSM-IV). A GAF score between 41 and 50

indicates serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious

impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job). See id.

Findings, Conclusions and Recommendation of 

the United States Magistrate Judge–Page 6

and shop was greatly diminished due to decreased motivation and back pain. A typical day involved

going to yard sales and attending school. (Tr. 426). Holm found Walker had diminished

concentration, adequate persistence, and a mildly slow pace.

Holm diagnosed major depression, recurrent, with a current Global Assessment of

Functioning (GAF) score of 45.3

 He assigned a guarded prognosis, but opined that Walker was

capable of managing benefits in her own best interest. (Tr. 426-27).

State agency medical consultant Frank Zimmerman, M.D., reviewed the available evidence

on April 20, 2000 and opined that Walker’s depression resulted in slight restriction in her activities

of daily living and social functioning; often caused deficiencies in concentration, persistence or

pace; and had resulted in one or two episodes of deterioration or decompensation in work or worklike settings. (Tr. 451). Zimmerman found marked limitations in Walker’s ability to understand,

remember and carry out detailed instructions. (Tr. 453). He also rated Walker as moderately limited

in the ability to maintain attention and concentration for extended periods, perform activities within

a schedule; maintain regular attendance and be punctual within customary tolerances; complete a

normal workday and workweek without interruptions from psychologically based symptoms;

perform at a consistent pace without an unreasonable number and length of rest periods; and accept

instructions and respond to appropriately to criticism from supervisors. (Tr. 453-54).

Walker was not considered significantly limited in her ability understand, remember and

 

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4 On July 11, 2000, a second state agency medical consultant reviewed Zimmerman’s findings and affirmed

them as written. (Tr. 444).

Findings, Conclusions and Recommendation of 

the United States Magistrate Judge–Page 7

carry out simple instructions; sustain an ordinary work routine without special supervision; work

in coordination or proximity to others without being distracted or distracting them; interact

appropriately with the general public; maintain socially appropriate behavior; and respond

appropriately to changes in work setting. (Tr. 453-54). Zimmerman concluded that Walker retained

the ability to perform “noncomplex and semicomplex” tasks without special supervision.4

 (Tr. 455).

On April 20, 2000, Walker returned to MHMR. She said she felt less depressed and reported

doing better in school. She obtained certificates of completion in May in a keyboarding course and

a course on 10-key calculator operation. (Tr. 88-89). On June 30, 2000, Walker complained of

problems concentrating and comprehending her school work and had flunked a math course. (Tr.

259). She had been out of her medications for two days and was feeling agitated and nervous. She

continued to worry about her grades during follow-up visits at MHMR over the next few months.

(Tr. 250-57).

Walker’s last recorded date of treatment at MHMR is October 23, 2000. She was alert and

oriented, but depressed with an appropriate mood and affect. (Tr. 248). Her thoughts were logical

and goal directed, and she denied any auditory or visual hallucinations. Walker was having

problems with her financial aid arrangements and reported difficulty concentrating. Dhingra

assessed her depression as a level 2 on a scale of 10, with 10 reflecting extreme symptoms. (Tr.

248). 

On October 23, 2000, Dhingra also completed a set of interrogatories submitted by Walker’s

 

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attorney. (Tr. 440). Dhingra indicated that Walker was moderately restricted in her activities of

daily living and social functioning. Walker was considered markedly impaired in her ability to

understand, remember and carry out even simple instructions; respond appropriately to supervision,

co-workers, and changes in routine work setting; and deal with work stresses. (Tr. 441). Dhingra

also assessed extreme deficiencies in Walker’s concentration, persistence and pace resulting in a

failure to complete tasks in a timely manner. (Tr. 441). He also opined that Walker could not work

on a full-time basis.

2. Administrative Hearing

Walker was forty-seven on the date of the administrative hearing. (Tr. 485). She had tried

working as a telemarketer after filing her application for SSI benefits, but was fired after one week

because she was too slow, took too many bathroom breaks, and had to stand frequently to alleviate

her back pain. (Tr. 486, 496). She had previous work experience as a cook, a line server at a school

cafeteria, and a convenience store cashier. (Tr. 487-90). Walker testified that she could not return

to her previous work because she had difficulty standing. (Tr. 490).

Walker sought help from Dhingra and MHMR because she was seeing things that were not

there. She was tired most of the day and napped frequently. (Tr. 494-95). She also had problems

getting along with people she did not know because she had an attitude problem. She testified that

she felt overly anxious when she was under pressure. (Tr. 496).

Vocational expert Joyce Shoap also testified during the hearing. Shoap classified the job of

cook as medium, skilled work, while the job of line server is considered light, semiskilled work.

Work as a convenience store cashier requires light exertion and is an entry-level, semiskilled job.

 

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(Tr. 499). The ALJ asked Shoap to consider the following hypothetical:

[A]ssume an individual who at the time in question was almost 45 years of age with

past work as you have described and a high school education. Let’s assume this

hypothetical person has a residual functional capacity for only light work with no

crawling, stooping, squatting, kneeling, or climbing. And further limited to simple

tasks in a routine setting. Would such an individual be capable of performing any

of the past work?

(Tr. 500). Shoap indicated that both the line server and cashier jobs would be suitable. (Tr. 500).

Shoap conceded that any job involved paying some attention to detail, but she did not consider the

line server job to require a high level of detail. (Tr. 510-11).

3. ALJ Decision

The ALJ found that Walker had not engaged in substantial gainful activity since applying

for SSI benefits and further found that Walker’s back disorder, neck disorder, and depression

constitute severe impairments. However, the ALJ found no impairments met or equaled any

impairment listed in Appendix 1 of the disability regulations. (Tr. 20). Instead, the ALJ found that

Walker retained the capacity to perform light work activity, limited to jobs requiring simple or the

lower end of detailed instructions and not requiring crawling, stooping, squatting, kneeling or

climbing. (Tr. 20).

Based on the vocational expert testimony, the ALJ concluded that Walker’s previous work

as a line server/counter attendant was compatible with her current residual functional capacity. (Tr.

19). Accordingly, Walker was found not to be disabled at Step Four of the sequential evaluation

process. (Tr. 20-21).

E. DISCUSSION

1. Residual Functional Capacity

 

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Walker asserts that the assessment of her residual functional capacity (RFC) is unsupported

by substantial evidence because of the ALJ’s failure to adequately evaluate medical source opinions

about the limitations caused by her mental impairment.

a. Treating Source Opinion

Walker complains of the ALJ’s failure to specifically address the interrogatories Dhingra

answered in October 2000. Adjudicators must carefully consider medical source opinions on any

issue, including issues reserved to the Commissioner. SOCIAL SECURITY RULING 96-5p.Treating

source opinions about the nature and severity of a claimant’s impairments may be entitled to great

or even controlling weight. SOCIAL SECURITY RULING 96-2p. See also 20 C.F.R. § 416.927. An

adjudicator must give good reasons in his decision for the weight given to a treating source medical

opinion. SOCIAL SECURITY RULING 96-2p. 

Here, the ALJ did precisely what the regulations and rulings proscribe. There is no mention

of Dhingra’s opinion and no discussion of the value of that opinion as compared to the other

evidence of record. Moreover, Walker was prejudiced as a result of the ALJ’s omission. If adopted,

Dhingra’s opinion would place greater limitation on Walker’s mental capacity then the ALJ found

and would preclude full-time work. (Tr. 440-41).

The Commissioner asserts that the ALJ recognized his duty to consider all medical opinions,

(Tr. 17), and several times in his decision referred to his consideration of “all of the evidence” or

“the entire record.” Such references, however, do not comply with the regulations or administrative

rulings governing evaluation of treating source opinions. The Commissioner further asserts that the

ALJ properly gave no weight to Dhingra’s opinion and proceeds to provide several reasons why

 

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Dhingra’s opinion is inaccurate when viewed against the evidence as a whole. None of these

reasons are found in the ALJ’s written decision. The ALJ’s determination must stand or fall on the

reasons set forth in the ALJ’s decision as adopted by the Appeals Council. Newton v. Apfel, 209

F.3d 448, 455 (5th Cir. 2000). 

The administrative decision should be reversed and remanded so that the ALJ can fulfill his

responsibility to weigh all medical source opinions in the record.

b. State Agency Medical Consultants

Walker also complains of the ALJ’s failure to adequately evaluate the opinions offered by

the non-examining state agency medical consultant who evaluated her case. In particular, she asserts

that the ALJ’s decision conflicts with the opinion of the state agency medical consultant that she was

impaired in her ability to understand, remember and carry out detailed instructions.

Findings of fact made by state agency medical and psychological consultants regarding the

nature and severity of an individual's impairments are treated as expert opinion evidence (from

nonexamining sources) at the administrative hearing and Appeals Council levels of administrative

review. 20 C.F.R. §§404.1527(f), 416.927(f); SOCIAL SECURITY RULING 96-6p. The administrative

law judge and the Appeals Council are not bound by the state agency physicians’ opinions, but may

not ignore them and must explain the weight given to these opinions in their decisions. SOCIAL

SECURITY RULING 96-6p.

The ALJ reviewed the state agency medical consultant’s opinions, concurred with the

assessment, and incorporated Walker’s limited capacity for detailed instructions into his residual

functional capacity finding. (Tr. 19). Walker’s complaint that the ALJ gave inadequate

 

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consideration to the opinions of the state agency physicians is meritless. 

 

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2. Past Relevant Work

Walker contends that the determination that she can return to her past relevant work as a line

server is a product of legal error, namely, the ALJ’s failure to develop the record regarding all

requirements of her previous work.

Walker particularly complains that her previous work, as defined in the Dictionary of

Occupational Titles (DOT) and as described by the vocational expert, requires a higher reasoning

level than her current residual functional capacity permits. The DOT provides the following

description of the job of counter attendant (which the vocational expert testified was the equivalent

of a line server):

311.677-014 COUNTER ATTENDANT, CAFETERIA

Industry Designation: Hotel and Restaurant Industry 

Alternate Titles: Server; Steamtable Attendant

Serves food from counters and steamtables to cafeteria patrons: Serves salads,

vegetables, meat, breads, and cocktails, ladles soups and sauces, portions desserts,

and fills beverage cups and glasses as indicated by customer. Adds relishes and

garnishes according to instructions from COUNTER SUPERVISOR (hotel & rest.)

311.137-010. Scrubs and polishes counters, steamtables, and other equipment. May

replenish foods at serving stations. May brew coffee and tea. May carve meat. May

accept payment for food, using cash register or adding machine to total check. May

prepare and serve salads and be known as Salad Counter Attendant (hotel & rest.).

DICTIONARY OF OCCUPATIONAL TITLES 11.677-014 (rev. 4th e. 1991). The DOT also indicates that

the job requires a Reasoning Level of 2. “Level 2” reasoning skills require the employee to apply

commonsense understanding to execute detailed but uninvolved instructions and deal with problems

involving a few concrete variables in or from standardized situations. See DICTIONARY OF

OCCUPATIONAL TITLES app. C (rev. 4th ed. 1991) (Scale of General Education Development). 

 

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The ALJ asked the vocational expert to consider suitable work for a claimant limited to

simple work in routine settings, and the vocational expert named the job of line server. (Tr. 500).

The vocational expert later reiterated in her testimony that the job would be quite routine for a

person who had previously worked in the food service industry. (Tr. 503). Walker’s argument that

line service requires reasoning abilities above her current residual functional capacity assessed by

the ALJ is unsupported by the record.

 Walker also contends that the ALJ failed to consider the impact of her need for an

unreasonable number or length of rest periods and her impaired ability to accept instructions and

respond appropriately to criticism from supervisors. In assessing Walker’s residual functional

capacity, the ALJ did not find that Walker had either of these limitations. There is no requirement

that an ALJ consider the vocational impact of conditions he does not find to exist. However, the

ALJ is not precluded from reconsidering Walker’s residual functional capacity on remand of this

case if deemed necessary.

RECOMMENDATION

It is recommended that the decision of the Commissioner be reversed and remanded for

further administrative proceedings consistent with the foregoing proposed findings of fact and

conclusions of law.

 

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NOTICE OF RIGHT TO OBJECT TO PROPOSED

 FINDINGS, CONCLUSIONS AND RECOMMENDATION

 AND CONSEQUENCES OF FAILURE TO OBJECT

Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific

written objections in the United States District Court to the United States Magistrate Judge’s

proposed findings, conclusions and recommendation within ten (10) days after the party has been

served with a copy of this document. The court is hereby extending the deadline within which to

file specific written objections to the United States Magistrate Judge’s proposed findings,

conclusions and recommendation until July 12, 2005. The United States District Judge need only

make a de novo determination of those portions of the United States Magistrate Judge’s proposed

findings, conclusions and recommendation to which specific objection is timely made. See 28

U.S.C. § 636(b)(1). Failure to file by the date stated above a specific written objection to a proposed

factual finding or legal conclusion will bar a party, except upon grounds of plain error or manifest

injustice, from attacking on appeal any such proposed factual findings and legal conclusions

accepted by the United States District Judge. See Douglass v. United Services Auto Ass'n, 79 F.3d

1415, 1428-29 (5th Cir. 1996)(en banc).

ORDER

Under 28 U.S.C. § 636, it is hereby ORDERED that each party is granted until July 12, 2005

to serve and file written objections to the United States Magistrate Judge’s proposed findings,

conclusions and recommendation. It is further ORDERED that if objections are filed and the

opposing party chooses to file a response, the response shall be filed within seven (7) days of the

filing date of the objections.

 

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It is further ORDERED that the above-styled and numbered action, previously referred to

the United States Magistrate Judge for findings, conclusions and recommendation, be and hereby

is returned to the docket of the United States District Judge.

SIGNED JUNE 20, 2005.

 /s/ Charles Bleil 

CHARLES BLEIL

UNITED STATES MAGISTRATE JUDGE

 

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