1 The following background comes from the transcript of the administrative proceedings, which is

designated as “Tr.”

1

 IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

WICHITA FALLS DIVISION

SUSAN WOODARD, §

§

Plaintiff §

§ Civil Action No. 7:04-CV-0139-BH

v. §

§

COMMISSIONER OF SOCIAL SECURITY, §

§

Defendant. §

MEMORANDUM OPINION AND ORDER

Before the Court are Plaintiff’s Motion for Summary Judgment, filed January 5, 2005;

Commissioner’s Cross-Motion for Summary Judgment, filed February 4, 2005; and Plaintiff’s Reply

Brief, filed April 6, 2005. Having reviewed the evidence of the parties in connection with the

pleadings, the Court concludes that Plaintiff’s Motion for Summary Judgment should be

GRANTED, Commissioner’s Cross-Motion for Summary Judgment should be DENIED, and the

decision of the Commissioner should be REVERSED and REMANDED for reconsideration.

I. BACKGROUND1

A. Procedural History

Suzan Woodard (“Plaintiff”) seeks judicial review of a final decision by the Commissioner

of Social Security (“Commissioner”) denying her claim for disability benefits under Title XVI of

the Social Security Act. On November 19, 2000, Plaintiff filed an application for disability

 

 Case 7:04-cv-00139-BH Document 27 Filed 07/31/06 Page 1 of 29 PageID 101
2

Plaintiff previously filed an application for disability benefits on May 17, 2000, claiming she was disabled

due to bilateral patella femoral syndrome, chest pain, depression, stomach pain, and carpal tunnel syndrome. The

application was denied based on the determination that Plaintiff did not suffer from a medical condition that limited

her ability to work. This prior denial was not appealed.

2

benefits.2

 (Tr. at 24). Plaintiff claimed she was disabled due to major depression, panic disorder,

and agoraphobia. (Tr. at 82). Plaintiff’s application was denied initially and upon reconsideration.

(Tr. at 33-45). Plaintiff timely requested a hearing before an Administrative Law Judge (“ALJ”).

(Tr. at 46). A hearing, at which Plaintiff personally appeared and testified, was held on January 15,

2004. (Tr. at 277-316). On February 19, 2004, the ALJ issued his decision finding Plaintiff not

disabled. (Tr. at 15-22). The Appeals Council denied Plaintiff’s request for review, concluding that

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

decision. (Tr. at 2-4). Thus, the ALJ’s decision became the final decision of the Commissioner on

June 3, 2004. (Tr. at 2-4). Plaintiff timely appealed the Commissioner’s decision to the United

States District Court pursuant to 42 U.S.C. § 405(g) on July 21, 2004.

B. Factual History

1. Age, Education, and Work Experience

Plaintiff was born on October 20, 1962. (Tr. at 23). At the time of the hearing before the

ALJ she was 41 years old. (Tr. at 282). She went to high school through ninth grade and obtained

a GED. Id. She also received training as a medical assistant. (Tr. at 88). Her past relevant work

experience includes work as a motel and apartment housekeeper, a janitor, and a motel laundry

worker. (Tr. at 313). Plaintiff last worked in June 2001. (Tr. at 286).

 

 Case 7:04-cv-00139-BH Document 27 Filed 07/31/06 Page 2 of 29 PageID 102
3

“According to the Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. Text Revision 2000),

the Global Assessment of Function Scale is used to report the clinician’s judgment of the individual’s overall level of

functioning. GAF scores of 41 to 50 reflect 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,

3

2. Medical Evidence

Plaintiff has a history of anxiety and panic attacks since 1999. (Tr. at 127). On June 21,

2001, Plaintiff was admitted to the emergency room at Charlton Methodist Hospital in Dallas, Texas

with a panic attack. Id. She had been driving on the freeway when the attack occurred and was

taken via ambulance to the emergency room. Id. Her symptoms were abrupt and included throat

tightening, chest tightness, and bilateral finger numbness. Id. The episode lasted approximately

thirty minutes. Id. Plaintiff reported that she had similar symptoms previously and that her panic

episodes occurred every three to four days. Id. Plaintiff also reported that she had not been able to

keep a job as a result of the attacks. Id. The emergency room doctor diagnosed the episode as a

panic attack with angina. Upon discharge, Plaintiff was advised to call the Tarrant County Health

Department for referral to a mental health clinic. (Tr. at 128, 130). 

Plaintiff was treated at Mental Health Mental Retardation of Tarrant County (“MHMR”)

from July 19, 2001, to January 16, 2002. (Tr. at134-62). Plaintiff complained of anxiety,

depression, irritability, lack of sleep, loss of appetite, and decrease in energy. (Tr. at 134). On July

19, 2001 a mental health clinician entered the following diagnoses:

Axis I: Major depression, recurrent, severe, without psychosis

Anxiety disorder

Axis II: Personality disorder not otherwise specified

Axis III: Ulcers

Asthma

Axis V: Global Assessment of Functioning (“GAF”) of 503

 

 Case 7:04-cv-00139-BH Document 27 Filed 07/31/06 Page 3 of 29 PageID 103
unable to keep a job). GAF scores of 51-60 indicate moderate symptoms (e.g., flat affect and circumstantial speech,

occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning (e.g., few friends,

conflicts with peers or co-workers).” Hudson ex rel. Jones v. Barnhart, 345 F.3d 661, 663 n.2 (8th Cir. 2003)

(citations omitted).

4

(Tr. at 154). Plaintiff’s August 18, 2001 lab results from MHMR tested positive for cannabis. (Tr.

at 148).

On February 11, 2002, Dr. Tara Reddy performed a psychiatric evaluation of Plaintiff. (Tr.

at 163). Dr. Reddy made the following diagnoses:

Axis I: Major depression, recurrent, moderate as manifested by crying

episodes, impaired sleep, appetite disturbance, anergia, social

isolation, decreased libido, helplessness, hopelessness, as well as

anhedonia

Panic disorder with agoraphobia - The patient feels like she is going

to have a heart attack, her heart races, she experiences chest pain,

becomes breathless, reports perspiration, tremors and basically she

avoids crowds and shopping

Axis II: None

Axis III: Right carpal tunnel syndrome

Bilateral knee pain

Axis IV: Psychosocial problems

Economic problems

Employment problems

Axis V: Current GAF of around 55

Prior GAF of around 70

(Tr. at 164-65).

 Dr. Richard Alexander and Dr. A. Boulos, non-examining agency physicians, reviewed

Plaintiff’s medical file and conducted a residual functional capacity assessment. (Tr. at 167-69).

On January 28, 2002, the physicians concluded that Plaintiff had mild restriction of activities of

 

 Case 7:04-cv-00139-BH Document 27 Filed 07/31/06 Page 4 of 29 PageID 104
5

daily living, moderate difficulties in maintaining social functioning, moderate difficulties in

maintaining concentration, persistence, or pace, and no episodes of decompensation. (Tr. 181). The

physicians also concluded that Plaintiff retained the abilities to understand and carry out simple

instructions, to interact with coworkers and supervisors, and to adapt to routine changes in the work

setting. Id. From these findings the physicians concluded that Plaintiff’s alleged limitations due to

mental symptoms were not fully supported by the record. (Tr. at 183). 

Dr. Mahmood Panjwani, a consulting physician, examined Plaintiff on March 23, 2002. (Tr.

at 185). Dr. Panjwani’s impression was that Plaintiff had right wrist pain from a previous surgery

for carpal tunnel syndrome which was improved, but Plaintiff was still symptomatic. (Tr. at 189).

Dr. Panjwani thought that this right wrist pain made Plaintiff unable to perform prior activities such

as housekeeping work. Id. Also, it was Dr. Panjwani’s impression that Plaintiff had knee pain,

diagnosed as chondromalacia, and anxiety, panic attacks/depression. Id.

Plaintiff’s medical file was reviewed by a medical consultant, Dr. Paul Sundin, on April 16,

2002. (Tr. at 193-200). First, Dr. Sundin evaluated Plaintiff’s exertional limitations and concluded

that she could occasionally lift and/or carry (including upward pulling) 50 pounds, frequently lift

and/or carry (including upward pulling) 25 pounds, stand and/or walk (with normal breaks) for a

total of about 6 hours in an 8-hour workday, sit (with normal breaks) for a total of about 6 hours in

an 8-hour workday, and had unlimited ability to push and/or pull (including operation of hand and/or

foot controls). (Tr. at 194). Second, Dr. Sundin evaluated Plaintiff’s postural limitations and

concluded that she was limited in climbing ladders, ropes, and scaffolds, and occasionally limited

in balancing, stooping, kneeling, crouching, crawling, and climbing ramps or stairs. (Tr. at 195).

Third, Dr. Sundin evaluated Plaintiff’s manipulative limitations and concluded that she had

 

 Case 7:04-cv-00139-BH Document 27 Filed 07/31/06 Page 5 of 29 PageID 105
6

occasional handling and fingering limitations when using her right hand. (Tr. at 196). Fourth, Dr.

Sundin evaluated Plaintiff’s visual limitations and concluded that she had none. Id. Fifth, Dr.

Sundin evaluated Plaintiff’s communicative limitations and concluded that she had none. (Tr. at

197). Finally, Dr. Sundin evaluated Plaintiff’s environmental limitations and concluded that she

should avoid even moderate exposure to vibrations and hazards (machinery, heights, etc.). Id. Dr.

Sundin’s report ultimately concluded that Plaintiff’s alleged limitations were not fully supported by

the medical evidence. (Tr. at 198). 

Plaintiff was treated at John Peter Smith Hospital in Fort Worth, Texas from May 29, 2002

to June 13, 2002. (Tr. 201-10). She complained of pain related to carpal tunnel syndrome and

bilateral knee joint pain. (Tr. 209). A doctor at the hospital diagnosed her as having knee pain,

carpal tunnel, and anxiety among other things. (Tr. 210). 

On July 31, 2002, another medical consultant reviewed Plaintiff’s medical records and made

similar conclusions to Dr. Sundin, with the exception that the consultant believed that Plaintiff had

no postural limitations. (Tr. at 211-18).

Plaintiff was treated at East Texas Medical Center for abdominal pain from August 20, 2002

to August 21, 2002. (Tr. at 219-20). 

Plaintiff was treated at Family Health Center in Wichita Falls, Texas, beginning November

20, 2002, for knee pain, an ingrown toenail, herpes, hand pain, and abdominal pain. (Tr. at 229-62).

On November 20, 2002, Plaintiff complained of feeling stressed out, having a short temper, and

having tremors all day, among other things. (Tr. at 250). She also reported having had a recent

mammogram and sonogram, but did not know the results. Id. Dr. Ravi assessed her as having

arthritis and also advised her to release her medical records from the mammogram and sonogram

 

 Case 7:04-cv-00139-BH Document 27 Filed 07/31/06 Page 6 of 29 PageID 106
7

so that she could be sent for another sonogram if needed. (Tr. at 249). During that same visit Dr.

Ravi noted Plaintiff’s history of depression and panic disorder for which Plaintiff was seeking

treatment at MHMR. Id. On January 31, 2003, Plaintiff was assessed as having contact dermatitis

as well as arthritis involving the right knee. (Tr. at 248). Dr. Ravi also noted that Plaintiff was

scheduled for an appointment with Dr. Myers on February 13, 2003 for an abnormal mammogram.

Id. Finally, on February 28, 2003, Plaintiff was assessed as having contact dermatitis, herpes

genitalis in the prodromal phase, a history of depression and panic disorder. (Tr. at 247). She was

also post-menopausal. Id. Dr. Ravi noted that Plaintiff’s depression and panic disorder were being

followed up at MHMR. Id. Plaintiff continued to receive treatment at Family Health Center until

August 5, 2003. Id. 

During the same time period, from November 11, 2002 to August 27, 2003, Dr. Decena was

Plaintiff’s psychiatrist at Helen Farabee Regional MHMR Center. (Tr. at 263-74). Dr. Decena

performed a psychiatric evaluation of Plaintiff on November 21, 2002. The evaluation indicated that

Plaintiff’s chief complaint was major depression, occasional panic episodes, nervousness, and

snappiness. (Tr. at 272). Her psychiatric history included depression beginning in 1997 or 1998

when she was in the process of a divorce. Id. However, the history indicated that she was never

hospitalized for depression. Id. Her history also indicated that a year after her depression began,

she started to experience panic episodes and needed less sleep. Id. Dr. Decena made the following

diagnoses:

Axis I: Bipolar I Disorder, most recent episode mixed, severe without

psychotic features

Panic disorder without agoraphobia

Axis II: No diagnosis

 

 Case 7:04-cv-00139-BH Document 27 Filed 07/31/06 Page 7 of 29 PageID 107
8

Axis III: Recurrent headaches

Hypercholesterolemia

Axis IV: Problems related to the social environment

Economic problems

Axis V: GAF Scale = 48 (current); 50 (past year)

(Tr. at 273).

After the initial evaluation, Plaintiff was seen by Dr. Decena monthly for medication refills

and general check ups. (Tr. at 264-71). During each check up, Dr. Decena filled out a progress note

which detailed Plaintiff’s chief complaints. Id. On December 17, 2002, Plaintiff reported that she

had not been doing well and was feeling depressed with loss of motivation. (Tr. at 271). She

claimed that she had not been sleeping well at night and had been having mood swings. Id. She

reported shakiness which she claimed was a result of worrying a lot. Id. However, Dr. Decena

acknowledged that her shakiness had been present before taking any psychoactive medications. Id.

She denied any adverse or ill effects from all her medication. Id. On January 17, 2003, Plaintiff was

quite shaky and talking fast. (Tr. at 270). She indicated that she had to stop taking one of her

medications because she had been sleeping all the time and could not function. Id. On February 20,

2003, Plaintiff reported still feeling depressed with mood swings and feeling sleepy, but was unable

to fall asleep at night. Id. On March 20, 2003, Plaintiff stated that she still had not been doing well

and still having mood swings, but not the dysphoric mania. (Tr. at 268). She also denied adverse

effects from her medication. Id. Again on April 22, 2003, Plaintiff reported not doing well, still

having mood swings, and not sleeping well. (Tr. at 267). The progress note indicated that her

symptoms may have been associated with her problems with her ex-husband, with whom she was

staying because of financial necessity. Id. On May 21, 2003, Plaintiff complained of feeling quite

 

 Case 7:04-cv-00139-BH Document 27 Filed 07/31/06 Page 8 of 29 PageID 108
4

Licensed Master of Social Work - Advanced Clinical Practitioner

9

depressed and not sleeping very well. (Tr. at 266). She denied having suicidal ideations and

remarked that she continued to receive counseling from two sources. Id. She identified her living

situation with her ex-husband as the most probable cause of her problems. Id. On July 2, 2003, Dr.

Decena noted that Plaintiff was neatly dressed and groomed and had good eye contact, but was quite

sullen and indicated that she had not been feeling very well or sleeping very well. (Tr. at 265).

During that same visit, Plaintiff complained of nightmares, especially after taking Remeron. Id.

Also, in spite of her medication, Plaintiff was still experiencing panic episodes. Id. She also

reported being stressed out because her ex-husband had left her and she could only stay in his house

until the end of the month. Id. Plaintiff’s last reported progress note was on July 30, 2003. (Tr. at

264). During the visit she complained of lack of sleep, nightmares, depression, and generally not

feeling very well. Id. Dr. Decena continued to treat Plaintiff through August 27, 2003. (Tr. at 263-

74.)

While still being treated by Dr. Decena, Plaintiff saw Chuck Staats, LNSW-ACP4

, on a

weekly basis beginning on March 14, 2003 for her “debilitating mental illness condition of Bipolar

II Disorder, Recurrent Major Depressive Episodes without Hypomanic Episodes and Panic Disorder

Without Agoraphobia.” (Tr. at 275). He reported that she was taking a medication regime of Zoloft,

Neuronten, Clonazepam, and Remeron which had not produced satisfactory results. Id. Mr. Staats

claimed that Plaintiff was “unable to work to support herself due to her debilitating condition,” and

desperately needed “financial assistance to survive and have a chance to stabilize her condition

medically, mentally, and emotionally[.]” Id. 

 

 Case 7:04-cv-00139-BH Document 27 Filed 07/31/06 Page 9 of 29 PageID 109
10

3. Hearing Testimony

On January 15, 2004, Plaintiff appeared before the ALJ and was represented by a nonattorney representative. (Tr. at 279). Also present was a vocational expert (“VE”), Clifton A .King,

Jr. Id. Plaintiff testified that she was 41 years old and had obtained a GED. (Tr. at 282). She also

stated that she received further training as a medical assistant. (Tr. at 283). Plaintiff testified that

she last worked in June of 2001 as a housekeeper at a Motel 6. (Tr. at 286). She claimed to have

stopped working after experiencing a panic attack. Id.

Plaintiff claimed that her primary problems were depression, panic disorder, and agoraphobia

social disorder. (Tr. at 287). She claimed that her agoraphobia is a fear of leaving her house and

the fear of having a panic attack in a public place. Id. She believed that these problems were caused

by personal problems related to her last divorce. (Tr. at 288.) Plaintiff further testified that she was

treated as an outpatient at Charlton Medical Hospital in 2002 after a panic attack that occurred while

she was driving. (Tr. at 289.) 

When asked about her stomach problems, she claimed that she had experienced ulcers for

a long time. (Tr. at 291.) Plaintiff stated that she used to take Prevacid but could no longer afford

it. Id. When asked about carpal tunnel syndrome, Plaintiff responded that she had carpal tunnel

release surgery performed on her right wrist in 1997. Id. She also testified to having chest pains

during panic attacks, but denied having any heart problems. Id.

The ALJ asked if she saw a mental health specialist on a regular basis and Plaintiff

responded that she goes to two facilities once a month and attends one-on-one counseling sessions

every week. (Tr. at 292.) She testified that the doctors have told her she has panic disorder and

might be bipolar because of her mood swings. Id. She stated that her mental health symptoms

 

 Case 7:04-cv-00139-BH Document 27 Filed 07/31/06 Page 10 of 29 PageID 110
11

began during her separation with her ex-husband. Id. She also claimed that the medication she takes

for her mental health problems makes her drowsy for most of the day. (Tr. at 293-94.)

When asked about activities she is able to do around the house, Plaintiff replied that she does

household chores, laundry, dishes, makes the bed, and sometimes drives. (Tr. at 294-95.) She also

replied that she sometimes shops, but usually has someone go with her in case she has a panic attack.

Id.

After finishing with his questioning, the ALJ gave Plaintiff’s representative the opportunity

to question Plaintiff. (Tr. at 298-300.) When asked about her panic episodes, Plaintiff testified that

they occur three to four times per week, they can happen at any place, and her last attack occurred

the night before the hearing. (Tr. at 298-99.) Plaintiff claimed that during an attack, her heart rate

increased, she started crying, she got overwhelmed very easily, and she experienced chest pain and

breathing problems. (Tr. at 299.) She stated that her panic episodes generally last approximately

thirty to forty minutes or more. Id. She recalled that her last episode outside the house was three

days before the hearing and occurred at a Wal-Mart store. (Tr. at 299-300.) Plaintiff testified that

the episode began when she got mad at people in the store and started breathing hard and shaking.

(Tr. at 300). She testified that she got upset and annoyed because people were standing in the

middle of the little aisle and talking to each other or on their cell phones. Id. When asked, she

acknowledged anger management problems. Id. Plaintiff testified that her panic attacks and her

depression affected her ability to perform her old jobs. (Tr. at 301.) She claimed that the mental

problems have totally changed her life and she is not as responsible as she used to be. Id.

Additionally, she testified that she left her last three jobs because of panic attacks. Id. Plaintiff

claimed that she has a hard time concentrating and has racing thoughts. (Tr. at 302.) She stated that

 

 Case 7:04-cv-00139-BH Document 27 Filed 07/31/06 Page 11 of 29 PageID 111
12

she sleeps approximately four hours per night because of the thoughts constantly running through

her head. (Tr. at 303.) 

Plaintiff testified that even though medication helped, it has not eliminated all her symptoms.

Id. She also stated that she believes her condition has gotten a little worse in the last twelve to

eighteen months because her depression has worsened as well as her feelings of uselessness. (Tr.

at 303-04.) She admitted to having suicidal thoughts but denied ever acting on them. (Tr. at 304.)

Plaintiff was asked about her ability to function in a job, to which she responded that she did not

think she could maintain and function in a full-time employment eight hours a day, five days a week.

(Tr. at 304.) 

After Plaintiff’s representative finished his questioning, the ALJ asked Plaintiff whether she

had used marijuana in the past. (Tr. at 306.) She testified that she began smoking marijuana during

her fourth marriage. (Tr. at 306-07.) She also said that her doctors knew of her marijuana use while

she was going through treatment, but explained to her that the marijuana use could counter the

effects of the medication she was taking. (Tr. at 308.) She claimed to have stopped using marijuana

about a month before the hearing. Id. Her explanation for the marijuana use was that it was an

escape and would sometimes calm her down and help put her to sleep. Id.

The ALJ asked Plaintiff about her living situation with her ex-husband. (Tr. at 309.) She

stated that he was a negative influence on her and she only stayed with him because she did not have

anywhere else to stay. Id. 

The ALJ then questioned the VE about Plaintiff’s capacity to work. (Tr. at 310-15.) The

vocational expert testified that it appeared that Plaintiff had held three significant jobs. (Tr. at 313.)

First, she had a job as a housekeeper/maid which he categorized as light; however, there were times

 

 Case 7:04-cv-00139-BH Document 27 Filed 07/31/06 Page 12 of 29 PageID 112
5

The Department of Labor’s Dictionary of Occupational Titles defines SVP as the amount of lapsed time

required by a typical worker to learn the techniques, acquire the information, and develop the facility needed for

average performance in a specific job-worker situation. Surkand v. Barnhart, No. 00-3175, 2001 WL 1518292, at *1

(E.D. La. November 28, 2001) (citation omitted). The time needed is ranked on a scale from 1 to 9, with 9

representing the most time needed to learn a job. Id.

13

when the work exceeded the “light” category but not to the full range of medium, unskilled, SVP5

of 2. Id. Second, she had a job as a janitor which he categorized as medium, unskilled, SVP of 2.

Id. Third, she had a job as a laundry laborer which he also categorized as medium, unskilled, SVP

of 2. Id.

The VE responded to a hypothetical question which assumed an individual of Plaintiff’s age,

education, and work experience who experienced a moderate level of anxiety, fatigue, and

discomfort affecting her ability to work in a competitive environment. (Tr. at 313-14.) The

hypothetical question also assumed that the individual could lift and carry objects up to twenty

pounds, stand or sit with normal breaks for six hours in an eight-hour workday, and sit with normal

breaks for a total of six hours in an eight-hour workday. Id. Additionally, the hypothetical stated

that the individual could only occasionally stoop and should avoid even moderate exposure to

machinery and heights. Id. The VE testified that the hypothetical individual could still perform the

job of a housekeeper/maid. (Tr. at 314.) 

Next, Plaintiff’s representative posed two hypothetical questions to the VE. (Tr. at 314-15.)

His first hypothetical incorporated the same individual described by the ALJ except that the

individual also experienced anxiety disorder with panic attacks that resulted in the individual

walking off the job two to three times per month on a consistent basis. (Tr. at 314.) The VE

testified that this situation would eliminate the job of housekeeper/maid and would also eliminate

 

 Case 7:04-cv-00139-BH Document 27 Filed 07/31/06 Page 13 of 29 PageID 113
14

and reduce the other jobs performed previously by the individual. Id. The representative then asked

another hypothetical question, incorporating the same individual described by the ALJ, except that

because of her mental impairments and the side effects of her medication, the individual’s pace and

persistence were reduced by twenty to twenty-five percent in performing her job duties. (Tr. at 314-

15.) The VE responded to the hypothetical by stating that the person could not adequately perform

the prior jobs. Id. 

C. ALJ’s Findings

The ALJ issued his decision denying benefits on February 19, 2004. (Tr. at 15-22.) In his

findings, the ALJ found that Plaintiff had agoraphobia, chest pain derivative, stomach pain, carpal

tunnel release in her right wrist, and bilateral patella femoral. (Tr. at 16.) The ALJ concluded that

the impairments were severe within the meaning of the Regulations, but not severe enough to meet

or medically equal any listed impairments. (Tr. at 18-19.) Specifically, the ALJ considered Listing

12.04 (affective mood disorder) and 1.02 (major dysfunction of a joint) and concluded that

Plaintiff’s impairments met neither listing. (Tr. at 19.) The ALJ justified this conclusion by looking

at all relevant evidence. In particular, he noted that Plaintiff had not been hospitalized for a mental

disorder and had not always been compliant with medication. Id. Also, Plaintiff had only mild

restrictions of activities of daily living, moderate difficulties in maintaining social functioning,

moderate difficulties in maintaining concentration, persistence, or pace, and no episodes of

decompensation. Id. Additionally, Plaintiff retained the abilities to understand and carry out simple

instructions, to interact with coworkers and supervisors, and to adapt to routine changes in work

setting. Id. Finally, the ALJ noted that Plaintiff’s motor strength was 5/5 in all groups and hand

grips were also 5/5, she had normal handling abilities with pain, and x-rays of her right hand and

 

 Case 7:04-cv-00139-BH Document 27 Filed 07/31/06 Page 14 of 29 PageID 114
15

knee were normal. Id. 

After reviewing all the relevant medical evidence from the record, the ALJ found that

Plaintiff’s subjective reports of functional limitations were not supported by the objective medical

findings to the extent alleged. (Tr. at 19-20.) The ALJ found that Plaintiff retained the residual

functional capacity (“RFC”) to perform the exertional demands of light work, or work that required

lifting no more than twenty pounds at a time or carrying of objects weighing up to ten pounds. (Tr.

at 20.) In reaching his conclusion, the ALJ considered the state agency medical consultant’s

opinions and generally agreed with them. Id. Also, the ALJ considered but did not agree with the

social worker’s opinions regarding Plaintiff’s ability to work to support herself. Id. Because

Plaintiff’s past work as a housekeeper did not require the performance of work-related activities

precluded by her RFC, the ALJ, based on the testimony on the vocational expert, found that Plaintiff

could perform her past relevant work as a housekeeper. (Tr. at 21.) Therefore, the ALJ found that

Plaintiff was not disabled within the meaning of the Social Security Act. Id.

II. ANALYSIS

A. Legal Standards

1. Standard of Review

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

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

applied proper legal standards in evaluating the evidence. Greenspan v. Shalala, 38 F.3d 232, 236

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

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

reasonable mind might accept as adequate to support a conclusion. Leggett v. Chater, 67 F.3d 558,

 

 Case 7:04-cv-00139-BH Document 27 Filed 07/31/06 Page 15 of 29 PageID 115
16

564 (5th Cir. 1995). In applying the substantial evidence standard, the reviewing court does not

reweigh the evidence, retry the issues, or substitute its own judgment, but rather, scrutinizes the

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

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

evidentiary choices or contrary medical findings to support the Commissioner’s decision. Johnson

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

The scope of judicial review of a decision under the supplemental security income program

is identical to that of a decision under the social security disability program. Davis v. Heckler, 759

F.2d 432, 435 (5th Cir. 1985). Moreover, the relevant law and regulations governing the

determination of disability under a claim for disability insurance benefits are identical to those

governing the determination under a claim for supplemental security income. See id. Thus, the

Court may rely on decisions in both areas without distinction in reviewing an ALJ’s decision. See

id. 

2. Disability Determination

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

defined by the Social Security Act. Leggett, 67 F.3d at 563–64; Abshire v. Bowen, 848 F.2d 638,

640 (5th Cir. 1988). The definition of disability under the Social Security Act is “the inability to

engage in any substantial gainful activity by reason of any medically determinable physical or

mental impairment which can be expected to result in death or which has lasted or can be expected

to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A); Anthony v.

Sullivan, 954 F.2d 289, 292 (5th Cir. 1992).

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

 

 Case 7:04-cv-00139-BH Document 27 Filed 07/31/06 Page 16 of 29 PageID 116
17

is disabled: 

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

be found disabled regardless of medical findings.

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

disabled.

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

regulations will be considered disabled without consideration of vocational factors.

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

of “not disabled” must be made.

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

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

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

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

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

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

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

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

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

capable of performing. Greenspan v. Shalala, 38 F.3d at 236. This burden may be satisfied either

by reference to the Medical-Vocational Guidelines of the regulations or by expert vocational

testimony or other similar evidence. Fraga v. Bowen, 810 F.2d 1296, 1304 (5th Cir. 1987). A

finding that a claimant is not disabled at any point in the five-step review is conclusive and

terminates the analysis. Lovelace v. Bowen, 813 F.2d 55, 58 (5th Cir. 1987).

B. Issues for Review

Plaintiff alleges that substantial evidence does not support the Commissioner’s finding that

 

 Case 7:04-cv-00139-BH Document 27 Filed 07/31/06 Page 17 of 29 PageID 117
18

she was not disabled because: 

(1) The ALJ’s RFC assessment does not specifically account for the mental limitations

reflected in his PRTF findings.

(2) The ALJ failed to accord appropriate weight to the findings and opinions of Dr.

Decena.

(3) The ALJ failed to properly consider the opinions of the reviewing agency physicians.

(4) The ALJ violated the Social Security Act by substituting his own opinions for

medical opinion without making a reasonable effort to ensure that a qualified

psychiatrist or psychologist reviewed the new mental health evidence received after

the case was originally reviewed by the state agency.

(5) The ALJ’s RFC assessment is not supported by substantial evidence and is not based

on consideration of all the impairments documented in the record.

(6) The ALJ failed to perform a proper Step Four analysis.

C. Issue One: Mental Limitations in PRTF Findings Reflected in RFC

Plaintiff asserts that the ALJ erred because his RFC assessment did not specifically account

for the mental limitations reflected in his PRTF (“Psychiatric Review Technique Form”) findings.

(Pl.’s Br. at 12.) 

Where the evidence shows that a claimant has a severe mental impairment, the ALJ must

determine “if it meets or is equivalent in severity to a listed mental disorder.” 20 C.F.R. §

416.920a(d)(2). If the ALJ finds that the severe mental impairment “neither meets or is equivalent

in severity to any listing,” the ALJ will assess the claimant’s RFC. 20 C.F.R. § 416.920a(d)(3). The

ALJ alone is responsible for determining a claimant’s RFC. Ripley v. Chater, 67 F.3d 552, 557 (5th

Cir. 1995). When determining mental RFC, the ALJ must make a more detailed assessment by

itemizing the various functions contained in the PRTF. Ramirez v. Barnhart, 372 F.3d 546, 551-52

(3rd Cir. 2004); see also SSR 96-8p. If substantial evidence in the record supports an ALJ’s

 

 Case 7:04-cv-00139-BH Document 27 Filed 07/31/06 Page 18 of 29 PageID 118
19

determination of a claimant’s RFC, there is no error. Gutierrez v. Barnhart, No. 04-11025, 2005

WL 1994289, at *7 (5th Cir. Aug. 19, 2005). 

In the present case, the ALJ’s opinion reflects assessment of Plaintiff’s PRTF, finding that

Plaintiff had mild restrictions of activities of daily living, moderate difficulties in maintaining social

functioning, moderate difficulties in maintaining concentration, persistence, or pace, and no episodes

of decompensation. (Tr. at 19.) The ALJ then found that Plaintiff had some severe impairments,

but none that were of listing severity. (Tr. at 21.) Finally the ALJ found that Plaintiff retained the

RFC to perform the exertional demands of light work. (Tr. at 20.) The ALJ’s RFC analysis

included a more detailed narrative of how the Plaintiff would be affected by her impairments stating

that she could “occasionally stoop and should not work around machinery” and “will have a

moderate level of anxiety, fatigue and discomfort.” Id. This explanation given by the ALJ meets

the requirements of SSR 96-8p and Ramirez because it went beyond the simple findings of the

PRTF, which only give the ALJ the choice of checking from a number of boxes to express Plaintiff’s

mental limitations. 372 F.3d at 553. By stating that Plaintiff will have a “moderate level of anxiety,

fatigue and discomfort,” the ALJ incorporated the generic ratings in each of the four categories of

the PRTF. (Tr. at 20.) Specifically, “anxiety” relates to both Plaintiff’s moderate difficulties in

maintaining social functioning and moderate difficulties in maintaining concentration, persistence,

or pace, “fatigue” relates to Plaintiff’s moderate difficulties in maintaining concentration,

persistence, or pace, and “discomfort” can be seen to relate to any of the PRTF categories. Also,

since the ALJ found no episodes of decompensation, he did not have to include that in his RFC

analysis.

For these reasons, the Court finds no error in the ALJ’s RFC assessment.

 

 Case 7:04-cv-00139-BH Document 27 Filed 07/31/06 Page 19 of 29 PageID 119
20

D. Issue Two: Findings and Opinions of Dr. Decena

Plaintiff argues that the ALJ erred in failing to identify Dr. Decena as Plaintiff’s treating

psychiatrist and failed to accord appropriate weight to his diagnoses and opinions. (Pl.’s Br. at 13).

An ALJ is required to evaluate every medical opinion received and set forth the weight given

those opinions. 20 C.F.R. § 404.1527(d); Newton, 209 F.3d at 453. “A treating physician’s opinion

on the nature and severity of a patient’s impairment will be given controlling weight if it is ‘wellsupported by medically acceptable clinical and laboratory diagnostic techniques and is not

inconsistent with . . . other substantial evidence.’” Martinez v. Chater, 64 F.3d 172, 176 (5th Cir.

1995) (citing 20 C.F.R. § 404.1527(d)(2)). However, if good cause exists, an ALJ may give a

treating physician’s opinions little or no weight. Newton, 209 F.3d at 455. “Good cause may permit

an ALJ to discount the weight of a treating physician relative to other experts where the treating

physician’s evidence is conclusory, is unsupported by medically acceptable clinical, laboratory, or

diagnostic techniques, or is otherwise unsupported by the evidence.” Id. at 456. Thus, “[t]he

treating physician’s opinions are not conclusive.” Id. at 455. “Even though the opinion and

diagnosis of a treating physician should be afforded considerable weight in determining disability,

‘the ALJ has the sole responsibility for determining a claimant’s disability status.’” Martinez, 64

F.2d at 176 (quoting Moore v. Sullivan, 919 F.2d 901, 905 (5th Cir. 1990)). “[T]he ALJ is free to

reject the opinion of any physician when the evidence supports a contrary conclusion.” Martinez,

64 F.2d at 176 (quoting Bradley v. Bowen, 809 F.2d 1054, 1057 (5th Cir. 1987)).

The Fifth Circuit in Newton held that “absent reliable medical evidence from a treating or

examining physician controverting the claimant’s treating specialist, an ALJ may reject the opinion

of the treating physician only if the ALJ performs a detailed analysis of the treating physician’s

 

 Case 7:04-cv-00139-BH Document 27 Filed 07/31/06 Page 20 of 29 PageID 120
21

views under the criteria set forth in 20 C.F.R. § 404.1527(d)(2).” 209 F.3d at 455. Thus, before

deciding not to give any weight to a treating physician’s opinion, an ALJ must consider: (1) the

physician’s length of treatment of the claimant; (2) the physician’s frequency of examination; (3)

the nature and extent of the treatment relationship; (4) the support of the physician’s opinion

afforded by the medical evidence of record; (5) the consistency of the opinion with the record as a

whole; and (6) the specialization of the treating physician. Newton, 209 F.3d at 456 (citing 20

C.F.R. § 1527(d)(2)). If the ALJ fails to consider the requisite criteria, the case must be remanded.

Locke v. Massanari, 285 F. Supp.2d 784, 795 (S.D. Tex. 2001). However, the court expressly

excluded from the scope of Newton cases “where there is competing first-hand medical evidence and

the ALJ finds as a factual matter that one doctor’s opinion is more well-founded than another” and

cases in which “the ALJ weighs the treating physician’s opinion on disability against the medical

opinion of other physicians who have treated or examined the claimant and have specific medical

bases for a contrary opinion.” Newton, 209 F.3d at 458. Thus, “Newton is limited to circumstances

where the administrative law judge summarily rejects the opinions of a claimant’s treating physician,

based only on the testimony of a non-specialty medical expert who had not examined the claimant.”

Contreras v. Massanari, No. CIVA 1:00CV242C, 2001 WL 520815, at *4 (N.D. Tex. May 14,

2001); see also Newton, 209 F.3d at 458; Pedraza v. Barnhart, No. Civ.A.SA-020CA0752XR, 2003

WL 22231292, at *5 (W.D. Tex. Sept. 15, 2003).

Plaintiff’s reliance on Newton and Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir.

2003), for the proposition that an ALJ must explain in each written decision the weight given to

treating physicians and consider each factor set forth in 20 C.F.R. § 404.1527(d) is not supported

by case law. See Alejandro v. Barnhart, 291 F. Supp. 2d 497, 509 (S.D. Tex 2005) (noting that the

 

 Case 7:04-cv-00139-BH Document 27 Filed 07/31/06 Page 21 of 29 PageID 121
22

holding in Newton was limited to certain circumstances). As stated above, Newton’s holding is

limited to situations where “the administrative law judge summarily rejects the opinions of the

claimant’s treating physician, based only on the testimony of a non-specialty medical expert who

had not examined the plaintiff.” Contreras, 2001 WL 520815, at *4. Watkins also was a case where

the ALJ specifically rejected the opinion of the claimant’s treating physician without further

explanation. Watkins, 350 F.3d 1299-1300. In the instant case, the ALJ did not summarily reject

the findings and opinions of Dr. Decena. Although the ALJ’s findings do not specifically mention

Dr. Decena by name, the findings do discuss in detail the treatment and diagnosis Plaintiff received

at Helen Farabee Regional MHMR Center. (Tr. at18). Since the record indicates that Dr. Decena

was Plaintiff’s only treating physician at Helen Farabee MHMR, it is clear that the ALJ considered

his opinions. (264-75). Additionally, there is no indication in the decision that the ALJ rejected

those opinions or determined that they were entitled to less weight.

For these reasons, the Court finds that the ALJ properly accorded appropriate weight to the

diagnosis and opinions of Dr. Decena.

E. Issue Three: Opinions of Reviewing Agency Physicians

Plaintiff claims that the ALJ erred in failing to properly consider and explain the wight given

the opinions of the reviewing State agency physicians. (Pl.’s Br. at 14). 

Although ALJs “are not bound by any findings made by State agency medical psychological

consultants,” they must consider such findings as opinion evidence. 20 C.F.R. §§ 404.1527(f)(2)(I),

416.927(f)(2)(I). An ALJ may not ignore the opinions of State agency medical consultants and must

explain the weight given those opinions in their decision. SSR 96-6p. However, even where the

record demonstrates procedural improprieties, a court will not remand unless the substantial rights

 

 Case 7:04-cv-00139-BH Document 27 Filed 07/31/06 Page 22 of 29 PageID 122
23

of a party have been affected. Morris v. Bowen, 864 F.2d 333, 335 (5th Cir. 1988). Remand is

appropriate only if the improprieties would cast into doubt the existence of substantial evidence to

support the ALJ’s decision. Id.

In this case the ALJ did not ignore the opinions of State medical consultants, nor did he fail

to explain the weight given those opinions. The ALJ’s decision specifically discussed both Dr.

Alexander and Dr. Boulos’ assessments as well as other State medical consultants’ assessments

conducted in April and July 2002. (Tr. at 17.) The ALJ’s findings were wholly consistent with the

opinions of all the State medical consultants’ opinions. (Tr. at 17, 19.) Specifically, both the ALJ

and the consultants found that Plaintiff had “mild restrictions of activities of daily living, moderate

difficulties in maintaining social functioning, moderate difficulties in maintaining concentration,

persistence and pace, and no episodes of decompensation.” Id. Furthermore, both the ALJ and the

consultants found that Plaintiff “retain[ed] the abilities to understand and carry out simple

instructions, to interact with coworkers and supervisors and to adapt to routine changes in work

setting.” (Tr. at 19.) 

Additionally, in setting forth Plaintiff’s RFC, the ALJ stated that he had “considered the

determinations made by the State agency medical consultants,” and “generally agree[d] with the

determinations made by [them].” (Tr. at 20.) Although the statement that he “generally agreed with

the determinations” does not clearly indicate the amount of weight given to the State consultants’

opinions, the record indicates that the ALJ did not reject any portion of their opinions. (Tr. at 16-

22). In fact, the ALJ’s decision reflects all the State consultants’ opinions which would have been

beneficial to Plaintiff’s case, and therefore any procedural error that might have occurred could not

have prejudiced the Plaintiff. (Tr. at 18-19). The ALJ’s decision also reflects State consultants’

 

 Case 7:04-cv-00139-BH Document 27 Filed 07/31/06 Page 23 of 29 PageID 123
24

opinions that are harmful to the Plaintiff’s case, including the opinion that Plaintiff’s alleged

impairments were not fully supported by the record. Accordingly, the Court finds that the ALJ

properly considered the opinions of State agency medical consultants in reaching his conclusion that

Plaintiff is not disabled.

F. Issue Four: ALJ’s Duty to Fully and Fairly Develop the Record

The Plaintiff argues that the ALJ erred by not making a reasonable effort to ensure that a

qualified psychiatrist or psychologist reviewed Dr. Decena’s medical reports. (Pl.’s Br. at 15). The

Plaintiff specifically claims that the ALJ should have either gotten medical expert testimony or

referred the case back to the agency. Id.

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

Carey v. Apfel, 230 F.3d 131, 142 (5th Cir. 2000). However, an ALJ is not required to obtain the

testimony of a medical expert (“ME”). 20 C.F.R. § 404.1527(f)(2)(iii) (“[ALJs] may also ask for

and consider opinions from medical experts.”) (emphasis added). Failure to develop an adequate

record is not per se grounds for reversal. Kane v. Heckler, 731 F.2d 1216, 1220 (5th Cir. 1984).

Plaintiff must show that she “could and would have adduced evidence that might have altered the

result.” Carey, 230 F.3d at 142.

Here, the ALJ fully developed the record from which to make a decision regarding Plaintiff’s

alleged disability. The ALJ had a voluminous record of Plaintiff’s medical history including Dr.

Decena’s treatment records and opinions. Furthermore, because the ALJ has the discretion to obtain

the services of a medical expert and is not required to do so, it was not an error for him to fail to call

a medical expert during the hearing. Additionally, Plaintiff has not shown how any additional

evidence regarding Dr. Decena’s medical reports would have altered the outcome of the case. 

 

 Case 7:04-cv-00139-BH Document 27 Filed 07/31/06 Page 24 of 29 PageID 124
25

For these reasons, the Court finds no error in the ALJ’s failure to call an ME to testify at the

hearing or refer the case back to the agency to review Dr. Decena’s reports.

G. Issue Five: Consideration of All Impairments Documented in the Record

Plaintiff argues that the ALJ’s RFC analysis is not supported by substantial evidence because

Plaintiff suffers from hand impairments stemming from either physical or emotional causes which

limit her ability to perform manipulative activities such as housekeeping. (Pl.’s Br. at 16).

The question before this Court is not whether evidence in the record would support a

different decision, but whether substantial evidence in the record supports the ALJ’s decision not

to include a manipulative limitation in his RFC finding. See Jones v. Apfel, 174 F.3d 692, 693 (5th

Cir. 1999) (holding that a court may not “reweigh the evidence or substitute [its] judgment for the

[Commissioner’s],” but must “scrutinize the record in its entirety to determine whether substantial

evidence does indeed support the [Commissioner’s] findings”); Key v. Callahan, 109 F.3d 270, 273

(6th Cir. 1997) (“The decision of an ALJ is not subject to reversal, even if there is substantial

evidence in the record that would have supported an opposite conclusion, so long as substantial

evidence supports the conclusion reached by the ALJ.”); Johnson v. Chater, 87 F.3d 1015, 1017 (8th

Cir. 1996) (“We must consider both evidence that supports and evidence that detracts from the

[Commissioner’s] decision, but we may not reverse merely because substantial evidence exists for

the opposite decision.”). 

Although Dr. Panjwani’s impression was that Plaintiff was still symptomatic from carpal

tunnel syndrome and was “unable to perform activities like doing housekeeping work like she used

to do before,” there is ample evidence in the record that supports the ALJ’s decision not to include

manipulative impairments in Plaintiff’s RFC. (Tr. at 189.) For instance, Plaintiff admitted that she

 

 Case 7:04-cv-00139-BH Document 27 Filed 07/31/06 Page 25 of 29 PageID 125
26

is able to make the bed, do some household chores, do laundry, and do dishes. (Tr. at 294).

Additionally, Dr. Sundin, a consultative examiner, evaluated Plaintiff’s manipulative limitations and

concluded that she had only occasional handling and fingering limitations when using her right hand.

(Tr. at 196.) He also concluded that her motor strength and hand grip were 5/5 in all groups tested,

she had normal handling ability with pain, and x-rays were normal of right hand. (Tr. at 195.)

Furthermore, Dr. Panjwani’s opinion was not completely consistent on the issue of manipulative

limitations, because it included the finding that Plaintiff’s “hand grip [was] 5/5, normal, and

symmetric,” and her “[f]ine finger movements [were] normal and [she] had the ability to handle

small objects and button buttons on clothing.” (Tr. at 187.) 

For the reasons set forth above, the Court concludes that substantial evidence indeed supports

the ALJ’s RFC finding.

H. Issue Six: Step Four Analysis

Finally, Plaintiff argues that the ALJ’s failed to perform a proper Step Four analysis. (Pl.’s

Br. at 16.) It appears that Plaintiff is raising two distinct issue within this argument. First, she

argues that the hypothetical posed to the vocational expert did not reflect all Plaintiff’s impairments

and limitations as set forth in the record. Second, she argues that the ALJ failed to make any

findings regarding the physical and mental demands of Plaintiff’s past relevant work. Id. 

1. Hypothetical question

Plaintiff first argues that the ALJ erred in posing a hypothetical question to the VE because

the question did not accurately reflect all of Plaintiff’s impairments. (Pl.’s Br. at 16.)

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

to a hypothetical question to establish that work exists for a claimant. Bowling v. Shalala, 36 F.3d

 

 Case 7:04-cv-00139-BH Document 27 Filed 07/31/06 Page 26 of 29 PageID 126
27

431, 435 (5th Cir. 1994). A hypothetical question posed by an ALJ to a VE must reasonably

incorporate all the claimant’s disabilities recognized by the ALJ, and the claimant must be afforded

a fair opportunity to correct any deficiencies in the hypothetical question. Bowling, 36 F.3d at 436;

Morris v. Bowen, 864 F.2d 333, 336 (5th Cir. 1988). The Fifth Circuit’s test for an erroneous

hypothetical is “unless the hypothetical question posed to the vocational expert by the ALJ can be

said to incorporate reasonable 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

question...a determination of non-disability based on such a defective question cannot stand.”

Bowling, 36 F.3d at 436 (emphasis added). Plaintiff’s reliance on Boyd v. Apefel, 239 F.3d 698 (5th

Cir. 2001) is misplaced because, contrary to Plaintiff’s argument, the holding in that case did not

alter the Fifth Circuit’s test for a defective hypothetical question. The case merely held that an ALJ

must take into account post-hearing evidence. Id. Here, the hypothetical question included the RFC

finding that the Plaintiff “experiences a moderate level of anxiety, fatigue and discomfort effecting

her ability to work in a competitive environment.” (Tr. at 314). As stated above, the ALJ’s RFC

was supported by substantial evidence and therefore his hypothetical which included all the

limitations he found from the record was not erroneous. Furthermore, Plaintiff’s representative was

afforded an opportunity to correct any deficiencies that Plaintiff thought were present in the ALJ’s

hypothetical and asked two follow-up hypothetical questions to the vocational expert. (Tr. at 314-

15). Since the ALJ’s hypothetical question satisfied the two requirements set by the Fifth Circuit

for hypothetical questions posed to vocational experts, Plaintiff’s argument fails. 

 

 Case 7:04-cv-00139-BH Document 27 Filed 07/31/06 Page 27 of 29 PageID 127
28

2. Findings related to Plaintiff’s past work

Next, Plaintiff argues that the ALJ failed to make any findings regarding the physical and

mental demands of Plaintiff’s past relevant work. (Pl.’s Br. at 16.)

“[I]n finding that an individual has the capacity to perform a past relevant job, the

determination or decision must contain among the findings the following specific findings of fact:

(1) A finding of fact as to the individual’s RFC (2) A finding of fact as to the physical and mental

demands of the past job/occupation (3) A finding of fact that the individual’s RFC would permit a

return to his or her past job or occupation.” SSR 82-62. The ALJ can either look to the job duties

peculiar to an individual job as the Plaintiff actually performed it or look to the job demands and

duties as ordinarily performed in the national economy. SSR 82-61. Also, there is no requirement

that the ALJ obtain VE testimony when finding a claimant can perform past relevant work, although

there are some instances where it is “a good idea to do so.” Atkins v. Apfel, No. Civ.A. 99-3874,

2000 WL 1335820, at *3 (E.D. La. September 14, 2000). 

The ALJ in the instant case did not make any findings regarding the mental demands of

Plaintiff’s past job as a housekeeper. However, the ALJ ultimately concluded that the Plaintiff could

perform her past relevant work as a housekeeper/maid. (Tr. at 21.) In making this decision he relied

solely on the VE’s testimony that the Plaintiff could still perform work as a housekeeper/maid. Id.

When asked to describe the past relevant work performed by the Plaintiff, the VE stated that “there

appears to be three significant jobs. The first would be that of housekeeper/maid, a light. There are

times there may have been exceeded but not to a full range of medium, unskilled, SVP of 2. The

job of janitor, medium, SVP of 2, also unskilled. And the job of laundry laborer, medium, unskilled,

SVP of 2.” (Tr. at 313.) None of these past relevant work job descriptions provided by the

 

 Case 7:04-cv-00139-BH Document 27 Filed 07/31/06 Page 28 of 29 PageID 128
29

vocational expert established the mental demands of Plaintiff’s job as a housekeeper/maid, as

required by SSR 82-62. Id. Furthermore, there is no other evidence in the record which establishes

any mental demands of Plaintiff’s previous housekeeper/maid job. During the hearing, the ALJ

never inquired as to the mental demands that the Plaintiff had in her job as a housekeeper/maid.

Also, it does not appear that the ALJ looked to the demands of the Plaintiff’s past relevant work as

ordinarily performed in the national economy. Therefore, this Court concludes that the ALJ’s Step

Four analysis was incomplete, and remand is necessary. 

III. CONCLUSION

For the foregoing reasons, Plaintiff’s Motion for Summary Judgment is GRANTED,

Commissioner’s Cross-Motion for Summary Judgment is DENIED, and the decision of the

Commissioner is REVERSED and the case be REMANDED for reconsideration.

Furthermore, on remand the ALJ must, as a part of his Step Four analysis, assess Plaintiff’s

past employment as a housekeeper/maid and make specific findings as to the mental demands of the

work. If the ALJ determines that Plaintiff is unable to perform the duties of her past relevant work

as a housekeeper/maid, the ALJ should proceed to Step Five and obtain the opinion of a vocational

expert.

SO ORDERED, this 31st day of July, 2006.

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

 

 Case 7:04-cv-00139-BH Document 27 Filed 07/31/06 Page 29 of 29 PageID 129