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

designated as “Tr.”

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

TERRY JAMES, §

§

Plaintiff, §

§ Civil Action No. 3:04-CV-1944-L

v. §

§

COMMISSIONER OF SOCIAL SECURITY, §

§

Defendant. §

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

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

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

Magistrate Judge. Before this Court are Plaintiff’s Motion for Summary Judgment, filed January 26,

2006, Commissioner’s Motion for Summary Judgment and Defendant’s Response to Plaintiff’s

Motion for Summary Judgment and Memorandum in Support of Motion for Summary Judgment,

filed March 2, 2005, and Plaintiff’s Response to Defendant’s Motion for Summary Judgment, filed

April 19, 2005. Having reviewed the evidence of the parties in connection with the pleadings, the

undersigned recommends that the decision of the Commissioner be AFFIRMED.

I. BACKGROUND1

A. Procedural History

Terry James (“Plaintiff”) seeks judicial review of a final decision by the Commissioner of

Social Security (“Commissioner”) denying his claim for disability benefits under Titles II and XVI

of the Social Security Act. On December 21, 2001, Plaintiff filed applications for disability

 

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insurance benefits under Title II of the Social Security Act and for Supplemental Security Income

under Title XVI of the Social Security Act. (Tr. at 70-72.) Plaintiff claimed he was disabled due

to severe neck, shoulder, and back pain. (Tr. at 87.) Plaintiff’s application was denied initially and

upon reconsideration. (Tr. at 25-31; 35-38). A hearing, at which Plaintiff personally appeared and

testified, was held on August 25, 2003. (Tr. at 352-73). On November 18, 2003, the ALJ issued his

decision finding Plaintiff not disabled. (Tr. at 10-22.) 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 4-6.) Plaintiff then brought this timely

appeal to the United States District Court pursuant to 42 U.S.C. § 405(g).

B. Factual History

1. Age, Education, and Work Experience

Plaintiff was born on February 9, 1964. (Tr. at 357.) He graduated high school. Id. His past

relevant work experience included employment as an assistant manager at a restaurant, an order

puller, a forklift operator, and a bailer. (Tr. at 359-60.) At the time of the hearing, Plaintiff worked

part-time as a home health aide. (Tr. at 358.)

2. Medical Evidence

On June 7, 2001, Plaintiff was treated by Vannoy S. Cole, M.D. at the K Clinic after an

automobile accident on June 5, 2001. (Tr. at 119-20.) Plaintiff complained of pain in his neck and

upper back. (Tr. at 119.) He claimed he had no prior history of injuries or hospitalizations. Id.

Examination revealed that Plaintiff’s cervical range of motion was decreased by five to ten percent,

thoracic rotation was by decreased ten to fifteen percent, and lumbar range of motion was decreased

by thirty-five percent in all motions. Id. Bilateral straight leg raising was seventy-five degrees with

 

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positive back pain bilaterally. Dr. Cole noted pain on palpation of the left sternocleidomastoid

muscle and trapezius muscles. Id. Deep tendon reflexes in the upper and lower extremities were

1-2+/4+. Id. Plaintiff’s gait and heel-to-toe walking was within normal limits. Id. Dr. Cole’s

preliminary diagnoses were cervical strain, thoracic strain, and lumbar strain. (Tr. at 120.) Plaintiff

was prescribed Tylenol 3 and Flexeril. Id. 

On June 12, 2001, Plaintiff was treated by Mark Rayshell, D.C. at Accident & Injury

Chiropractic for injuries sustained in an automobile accident on June 8, 2001. (Tr. at 253.) Plaintiff

reported having been in two prior accidents, including the June 5, 2001 accident. Id. Plaintiff

complained of neck pain and upper and lower back pain. (Tr. at 253-54.) He also complained of

difficulty sleeping and weakness. (Tr. at 254.) Examination of the cervical spine indicated

foraminal encroachment, bilateral shoulder pain, possible nerve root compression, and possible

tearing of the connective tissues. Id. Examination of the thoracic and lumbar spine indicated a

herniated disc in the lumbar spine and a sprain/strain in the lumbar spine. (Tr. at 255.) Straight leg

raising was positive for low back pain. Id. Plaintiff was able to heel and toe walk. Id. Muscle

strength was +5 bilaterally and reflexes were +2 bilaterally. Id. An MRI of the spine showed that

the normal lordotic curve was mildly reduced overall but that invertebral disc spaces and vertebral

body heights were maintained. (Tr. at 258-59.) There was mild restriction of lower cervical flexion

and upper cervical extension. (Tr. at 258.)

Plaintiff was examined by Marlon D. Padilla, M.D. on June 14, 2001, for the injuries

sustained in the June 8, 2001 accident. (Tr. at 261-63.) Plaintiff complained of neck and back pain.

(Tr. at 261.) Plaintiff had decreased cervical range of motion but normal thoracic and lumbar range

of motion. (Tr. at 262.) Straight leg raises were normal bilaterally. Id. Dr. Padilla’s impression was

 

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that Plaintiff suffered cervical, thoracic, and lumbar strain/sprain. (Tr. at 263.) 

On February 25, 2002, Plaintiff was examined by a consultative examiner, Ingrid Zasterova,

M.D. (Tr. at 324-26.) Plaintiff complained of shoulder, neck, and back pain from the two June 2001

car accidents. (Tr. at 324.) Plaintiff stated that he was not receiving any medical care for his

injuries due to “insurance confusion.” Id. His daily activities were limited to sitting around the

house and doing light housework. Id. Plaintiff used a wheelchair which he purchased from a pawn

shop. Id. Plaintiff complained of pain in his neck, shoulders, and lower back radiating to the right

hip. Id. Plaintiff’s pain was aggravated by cold weather and prolonged sitting, standing, or walking.

Id. Plaintiff also complained of stool and urine incontinence since the accidents. Id. Plaintiff took

Advil or Motrin for his pain. Id. Although Plaintiff went to the exam in a wheelchair, he was able

to get out of the wheelchair on his own and ambulate without any assistive devices. (Tr. at 325.)

Examination of Plaintiff’s back revealed normal curvature, complete range of motion in all planes,

and no palpatory tenderness. Id. Plaintiff had free range of motion in all joints, including his

shoulders, hips, and knees. Id. Muscle strength was 5/5 in all extremities and grip was 5/5 in both

hands. Id. Plaintiff easily got on and off of the examining table. Id. His gait and station were

normal and he could walk on toes, heels, and in tandem. Id. Plaintiff could squat completely and

raise himself up unaided. Id. Straight leg raising was negative. Id. Dr. Zasterova ordered x-rays

of Plaintiff’s right shoulder, cervical spine, and lumbar spine. (Tr. at 326.) Those tests were normal.

Id. Dr. Zasterova noted Plaintiff’s complaints of pain but found no pathology on examination. Id.

She opined that Plaintiff retained the ability to sit for more than two hours, stand for one to two

hours, walk a mile, lift five to thirty pounds, and handle objects with fine finger control. Id.

On May 2, 2002, Plaintiff was again involved in an automobile accident. (Tr. at 317.)

 

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Plaintiff was examined by Ramesh Sanghani, D.C. at Accident & Injury Chiropractic. Id. Plaintiff

complained of neck pain, shoulder/trapezius pain, and back pain. Id. Plaintiff denied any significant

history of similar problems and claimed that he enjoyed good health prior to the May 2, 2002

accident. Id. Plaintiff exhibited localized pain upon palpation. (Tr. at 318.) Straight leg raising

produced low back pain at ninety degrees bilaterally. (Tr. at 319.) Joint restriction and capsular

swelling was noted in multiple sites throughout the cervical, thoracic, and lumbar spine. Id. Muscle

strength was +5 bilaterally. Id. Studies of Plaintiff’s cervical spine, thoracic spine, and lumbar

spine were also taken on May 2, 2002. (Tr. at 129-30.) Plaintiff’s cervical spine showed slight

reversal of the mid-cervical lordosis, apexing at C4-C5. (Tr. at 129.) Intervertebral disc spaces and

vertebral body heights were within normal limits. Id. Cervical flexion was within normal limits but

extension was mildly reduced in the upper cervical spine. Id. The impression as to Plaintiff’s

cervical spine was postural alterations and mild restriction of upper cervical extension. Id. The

study of Plaintiff’s thoracic spine was unremarkable. Id. Plaintiff’s lumbar spine showed mildly

reduced lordotic curve but no other abnormalities. (Tr. at 130.)

Plaintiff was examined by Douglas M. Wood, D.O., Ph.D. on May 9, 2002, for injuries

sustained in the May 2, 2002 accident. (Tr. at 151-54.) Plaintiff reported neck, mid-back, and low

back pain, as well as whiplash. (Tr. at 151.) Cervical and lumbar range of motion were decreased

by ten percent with moderate pain. (Tr. at 152.) Thoracic range of motion was full with moderate

pain. Id. Muscle spasm, midline tenderness, and trigger points were noted in all areas of Plaintiff’s

spine. Id. Straight leg raises were negative bilaterally. Id. Plaintiff ambulated with a balanced and

symmetrical gait. (Tr. at 153.) Dr. Wood’s impression was that Plaintiff suffered cervical, thoracic,

and lumbar strain. Id. Plaintiff was prescribed Hydrocodone and Flexeril. Id.

 

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On April 1, 2003, Plaintiff was seen at the emergency room at Baylor University Medical

Center for injuries sustained in an automobile accident on that date. (Tr. at 339.) Plaintiff

complained of neck and back pain. (Tr. at 341.) X-rays of Plaintiff’s cervical, thoracic, and lumbar

spine were within normal limits. (Tr. at 342.)

Another consultative examination was performed on April 24, 2003, by Arlan P. Larson,

M.D. (Tr. at 327-33.) Plaintiff complained of pain in his neck and lower back. (Tr. at 327.)

Plaintiff stated that his pain was continual and affected his sleep. Id. Plaintiff reported being in a

car accident on December 18, 1998, which caused constant neck pain. Id. Plaintiff reported

additional accidents on May 2, 2002, and April 1, 2003. Id. Plaintiff stated that he kept a

wheelchair at home to help him endure the pain of standing and walking when he needed to go

visiting. Id. Plaintiff’s daily activities included exercising, sitting or laying down, and watching

television. Id. Examination revealed that Plaintiff had a normal gait and could walk on his toes and

heels, could tandem walk, and could hop. (Tr. at 328.) Plaintiff could squat and rise from the squat.

Id. He was able to bend over ninety degrees and touch his toes. Id. Plaintiff exhibited good arm

strength bilaterally. Id. X-rays of the lumbar spine showed normal bone architecture and alignment.

Id. Disc spaces appeared normal and there was a normal amount of lordosis. Id. Dr. Larson

assessed Plaintiff as having chronic strain of the cervical spine manifested chiefly by pain in the

neck and right arm and lumbar strain. (Tr. at 329.) Dr. Larson opined that Plaintiff could

occasionally carry twenty pounds and frequently carry ten pounds. (Tr. at 332.) He believed that

Plaintiff could stand and/or walk for at least two hours and sit less than six hours in an eight hour

workday. Id. Dr. Larson limited Plaintiff to occasional climbing, balancing, stooping, crouching,

kneeling, and crawling. (Tr. at 333.) 

 

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3. Hearing Testimony

At the hearing on August 25, 2003, the ALJ heard testimony from Plaintiff and a Vocational

Expert (“VE”). (Tr. at 352-73.) Plaintiff was not represented by counsel at the hearing. (Tr. at 354.)

Plaintiff was informed of his right to be represented at the hearing but elected to proceed without

representation. (Tr. at 354-55.)

Plaintiff testified that he was thirty-eight years old. (Tr. at 357.) He lived alone in a second

floor apartment. Id. Plaintiff graduated from high school. Id. At the time of the hearing, Plaintiff

was working as a home health aide for four hours a day, five days per week. (Tr. at 358.) He had

been working at that job for five weeks. Id. Plaintiff testified that he believed he could work in his

current job on a full-time basis if there was no heavy lifting involved. His job involved cleaning the

house and cooking breakfast or lunch for the patient, and these activities did not cause him to strain

himself. (Tr. at 360-61.) 

Previously, Plaintiff had worked as an assistant manger at a fast food restaurant. (Tr. at 359.)

Plaintiff also had experience as a forklift operator and as a bailer. (Tr. at 359-60.) 

Plaintiff testified that in the afternoons he did his back exercises and watched television. (Tr.

at 362.) He believed that he could sit for twenty to thirty minutes before needing to move around.

Id. Plaintiff stated that when he stood too long his feet began to throb and his shoulder felt heavy.

(Tr. at 362-63.) He believed that he could walk for twenty to thirty minutes. (Tr. at 363.) He could

lift ten to twenty pounds but could not carry it elsewhere. (Tr. at 363-64.) Plaintiff stated that he

could go up stairs but that he needed to pull himself by the handrail. (Tr. at 364.) Plaintiff

complained of back pain when squatting and problems with balance when walking on his toes or

heels. Id. Plaintiff stated that his pain was generally constant but that it became worse with heavy

 

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lifting. (Tr. at 365.) Plaintiff’s pain was helped by medication, heating pads, and ice packs. (Tr.

at 366.)

The VE described Plaintiff’s past relevant work as that of a short order clerk, district truck

operator, and sealing machine operator. (Tr. at 369.) She described Plaintiff’s current job as that

of home care attendant. (Tr. at 370.) When asked to respond to a hypothetical question which

assumed an individual of Plaintiff’s age, education, and work experience, who had the residual

functional capacity to stand or walk for a half-hour at a time and for at least two hours in an eighthour workday, sit for one hour at a time and six hours in an eight-hour workday, occasionally climb,

balance, and stoop, and reach overhead frequently, the VE opined that Plaintiff would not be able

to perform any of his past relevant work. Id. The VE also opined that Plaintiff could not perform

his current job as it was performed in the national economy. (Tr. at 371.) The VE was next asked

to assume a hypothetical individual of Plaintiff’s age, education, and work experience, who retained

the ability to 

lift or carry 20 pounds occasionally and 10 pounds frequently, to stand or walk for

one hour at a time in a total of a two or three hours in a eight hour work day, that is

occasionally. And to sit for one hour at a time in a total of six hours in an eight-hour

work day, and frequently to reach overhead with his right upper extremity. 

(Tr. at 371.) The VE opined that such an individual could perform the jobs of small product

assembler, inspector/packer, and cafeteria cashier. (Tr. at 371-72.)

C. ALJ’s Findings

The ALJ issued his decision denying benefits on November 18, 2003. (Tr. at 10-22). In his

findings, the ALJ stated that Plaintiff had not engaged in substantial gainful activity since the alleged

onset date of his symptoms. (Tr. at 15.) The ALJ found that Plaintiff’s strain of the cervical spine

and strain of the lumbar spine were severe impairments. (Tr. at 18.) However, the ALJ concluded

 

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that none of his impairments met or equaled the criteria of any of the listed impairments. Id. The

ALJ found that Plaintiff’s testimony concerning the severity of his impairments and the limitations

imposed by them was not credible. Id. The ALJ noted that Plaintiff’s allegation of disabling pain

in his back and shoulders was not supported by the objective medical evidence. Id. Additionally,

the ALJ cited to Plaintiff’s statement that he would be able to perform the job of home health aide

full time and the fact that Plaintiff’s claimed date of disability was almost two months prior to the

date of the allegedly disabling accident. Id. The ALJ concluded that Plaintiff retained the residual

functional capacity (“RFC”) to perform a limited range of light work. Plaintiff could lift and/or

carry twenty pounds occasionally and ten pounds frequently, stand and/or walk for one-half hour

at a time and for a total of three hours in an eight-hour workday, sit for one hour at a time and for

a total of at least six hours in an eight-hour workday, occasionally climb, balance, stoup, crouch,

kneel, or crawl, and frequently reach with his right upper extremity. Id. The ALJ found that

Plaintiff could not perform his past relevant work. (Tr. at 19.) However, the ALJ concluded that

Plaintiff could perform a number of jobs available in the national and state economies including

packing inspector, small products assembler, and cafeteria cashier. (Tr. 20.) Accordingly, the ALJ

found that Plaintiff was not entitled to receive disability benefits. 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

 

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(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,

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, 343-344 (5th Cir. 1988).

2. Disability Determination

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

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

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

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

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

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

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

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

is disabled: 

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

be found disabled regardless of medical findings.

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

disabled.

 

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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 232, 236 (5th Cir. 1994). This burden may

be satisfied either by reference to the Medical-Vocational Guidelines of the regulations or by expert

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

1987). A finding that a claimant is not disabled at any point in the five-step review is conclusive

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

B. Issues for Review

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

finding that he was not disabled because:

(1) The ALJ erred in finding Plaintiff’s testimony not credible or supported by objective

medical evidence;

(2) The ALJ erred in failing to include Plaintiff’s deficiencies of concentration,

persistence, or pace in the hypothetical question posed to the Vocational Expert; and

 

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(3) The ALJ erred in considering Plaintiff’s employment at the time of the hearing when

finding that Plaintiff could perform substantial gainful activity.

C. Issue One: Credibility Assessment

Plaintiff asserts that the ALJ erred in finding his testimony concerning his impairments and

limitations not credible. (Pl.’s Br. at 3.) Plaintiff notes that the effects of all his impairments should

have been considered. Id.

“Credibility determinations are generally the province of the ALJ and are entitled to

deference.” Lam v. Apfel, 2000 WL 354393, *4 (N.D. Tex. Apr. 5, 2000). Therefore, courts will

reverse an ALJ’s credibility determination only if it is “patently wrong.” Jens v. Barnhart, 347 F.3d

209, 213 (7th Cir. 2003). Social Security regulations instruct ALJs to conduct a seven-factor

analysis when determining the credibility of a claimant’s subjective complaints of pain. 20 C.F.R.

§ 404.1529(c)(3). Those factors are: (1) the claimant’s daily activities; (2) the location, duration,

frequency, and intensity of symptoms; (3) precipitating and aggravating factors; (4) the type, dosage,

effectiveness, and side effects of any medication taken; (5) treatment, other than medication

received; (6) other measures used to relieve symptoms; and (7) other factors concerning functional

limitations and restrictions. Id. The ALJ’s “determination or decision must contain specific reasons

for the finding on credibility, supported by the evidence in the case record, and must be sufficiently

specific to make clear to the individual and to any subsequent reviewers the weight the adjudicator

gave to the individual’s statements and the reasons for that weight.” SSR 96-7p. “If on [42 U.S.C.]

§ 405(g) review the court finds that the ALJ followed the proper procedures and considered the

relevant factors, the ALJ’s determination is ordinarily conclusive.” Lechner v. Barnhart, 321 F.

Supp. 2d 1015, 1027 (E.D. Wis. 2004). However, “since substantive regulations have the force and

effect of law, failure to employ the seven-factor analysis when assessing credibility of subjective

 

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complaints constitutes legal error.” Parker v. Barnhart, 431 F. Supp. 2d 665, 672 (E.D. Tex. 2006).

“Such an error warrants a reversal unless harmless error analysis indicates that ‘remand would be

an idle and useless formality.’” Id. (quoting NLRB v. Wyman-Gordon Co., 394 U.S. 759, 766 n. 6

(1969)).

In this case, the ALJ provided specific reasons for his finding that Plaintiff’s allegations of

work-precluding pain were not fully credible. He noted that Plaintiff’s allegation of constant sharp

disabling pain in his back and shoulders was not supported by any objective medical evidence. (Tr.

at 18.) He noted Plaintiff’s statement at the hearing that he would be able to perform his current job

of home health aide full time. Id. Additionally, he noted that Plaintiff’s claimed date of disability

was inconsistent with the date he suffered the allegedly disabling accident. Id. The ALJ noted that

Plaintiff provided no explanation for why he discontinued working on April 10, 2001, his claimed

date of disability. Id. Because the ALJ supplied reasons for his credibility determination as to

Plaintiff’s complaints of physical pain, the Court cannot find that the determination was patently

wrong.

Although Plaintiff’s brief mentions the requirement that the ALJ consider the cumulative

effects of all Plaintiff’s impairments in making a disability determination, Plaintiff does not explain

how he believes that the ALJ erred in this respect. (Pl.’s Br. at 3.) The Court has thoroughly

reviewed the record in its entirety and finds that the ALJ did set forth all of the limitations imposed

by Plaintiff’s impairments in his determination. 

For these reasons, the Court concludes that substantial evidence supports the ALJ’s

credibility determination.

 

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D. Issue Two: Hypothetical Question

Plaintiff claims the ALJ erred in failing to include his “frequent deficiencies of

concentration, persistence, or pace” in his hypothetical question to the VE. (Pl.’s Br. at 3.) 

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). 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 Plaintiff “could and would have adduced evidence that might have altered the result.” Id. To

establish that work exists for a claimant, the ALJ relies on the medical-vocational guidelines or the

testimony of a VE in response to a hypothetical question. Bowling v. Shalala, 36 F.3d 431, 435 (5th

Cir. 1994). A hypothetical question posed by an ALJ 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. A claimant’s

failure to point out deficiencies in a hypothetical question does not “automatically salvage that

hypothetical as a proper basis for a determination of non-disability.” Boyd v. Apfel, 239 F.3d 698,

707 (5th Cir. 2001). If, in making a disability determination, the ALJ relied on testimony elicited

by a defective hypothetical question, the ALJ did not carry his burden of proof to show that despite

his impairment the claimant could perform available work. Id. at 708.

In this case, the ALJ’s hypothetical question to the VE set forth Plaintiff’s exertional

limitations but did not include any nonexertional limitations. Although Plaintiff’s brief states that

he has frequent deficiencies in concentration, persistence, and pace, he has not pointed the Court to

any evidence in the record supporting that claim. Nor does he allege that the ALJ recognized such

a limitation. Because the ALJ did not recognize any nonexertional limitation and because there is

 

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no evidence in the record that Plaintiff had nonexertional limitations, the hypothetical question

posed to the VE was not in error.

E. Issue Three: Current Employment

Plaintiff claims that the ALJ erred by taking into account Plaintiff’s employment as a home

health aide when making his disability decision. (Pl.’s Br. at 3.)

Any work performed by a claimant during a period in which the claimant alleges disability,

may show that the claimant is able to work at the substantial gainful activity level. 20 C.F.R. §

404.1571. Even if the work performed was not substantial gainful activity, it may show that the

claimant is able to perform more work than was actually done. Id. “Present levels of work activity

may show that a claimant is able to do more work than he or she is actually doing.” Zenker v.

Bowen, 872 F.2d 268, 270 (8th Cir. 1989) (affirming the ALJ’s finding that the plaintiff’s ability to

work twenty hours a week and to perform satisfactorily indicated that he could engage in substantial

gainful activity) (citing 20 C.F.R. § 404.1571).

Although the ALJ noted the fact that Plaintiff was working part-time at the time of the

hearing, that fact was not dispositive of Plaintiff’s disability claim. Rather, the ALJ relied upon the

medical evidence submitted by Plaintiff and the opinions of the consultative examiners as to

Plaintiff’s ability to perform work-related activities. (Tr. at 16, 17, 18.) Additionally, the ALJ

noted that fact that there was no objective medical evidence supporting Plaintiff’s allegations of

disabling pain and that Plaintiff testified that he believed he could work full-time. (Tr. at 18.)

Because the fact of Plaintiff’s part-time employment was relevant to the disability determination,

the ALJ did not err in noting it. See 20 C.F.R. § 404.1571. However, the ALJ relied upon other

evidence in making his disability determination and substantial evidence in the record supports the

 

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ALJ’s conclusion.

III. RECOMMENDATION

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

Commissioner be AFFIRMED. 

SO RECOMMENDED, on this 15th day of March, 2007.

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

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

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

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

findings, conclusions or recommendation to which objections are being made. The District Court

need not consider frivolous, conclusory or general objections. A party’s failure to file such written

objections to these proposed findings, conclusions and recommendation shall bar that party from a

de novo determination by the District Court. See Thomas v. Arn, 474 U.S. 140, 150 (1985); Perales

v. Casillas, 950 F.2d 1066, 1070 (5th Cir. 1992). Additionally, any failure to file written objections

to the proposed findings, conclusions and recommendation within ten (10) days after being served

with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions

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

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

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

 

 Case 3:04-cv-01944-L Document 20 Filed 03/15/07 Page 16 of 16 PageID 70