1

On February 12, 2007, Michael J. Astrue was sworn in as the Commissioner of Social Security. Pursuant to Rule

25(d)(1) of the Federal Rules of Civil Procedure, Mr. Astrue should be substituted as the defendant in this suit.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

TONY D. JENNINGS, §

§

Plaintiff, §

§

v. § 2:04-CV-0039

§

MICHAEL J. ASTRUE, §

Commissioner of Social Security, §

§

Defendant.1 §

REPORT AND RECOMMENDATION

TO REVERSE THE COMMISSIONER’S DECISION

AND REMAND FOR FURTHER ADMINISTRATIVE ACTION

Plaintiff TONY D. JENNINGS, brings this cause of action pursuant to 42 U.S.C. 

§ 405(g), seeking review of a final decision of defendant MICHAEL J. ASTRUE, Commissioner

of Social Security (Commissioner), denying plaintiff’s application for a term of disability, and

disability benefits. Both parties have filed briefs in this cause. For the reasons hereinafter

expressed, the undersigned United States Magistrate Judge recommends the Commissioner’s

decision finding plaintiff not disabled and not entitled to benefits be REVERSED and the case

REMANDED for proceedings consistent with this opinion.

I.

THE RECORD

Plaintiff applied for disability insurance benefits and supplemental security income (SSI)

 

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Plaintiff testified that he had some vocational training as an auto mechanic, and that he worked in that capacity from

approximately 1975 through 1989. (Tr. 29). The ALJ however, only referred to plaintiff’s past relevant work as an oil field

operator. (Tr. 15).

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benefits under Titles II and XVI of the Social Security Act on March 22, 2000, with a protective

filing date of January 20, 2000. (Transcript [hereinafter Tr.] 61-63; 159-161). Plaintiff alleges

an onset date of November 27, 1999 (Tr. 13, 61, 159) and claims his impairments include gout

and hepatitis C, which results in severe fatigue (Tr. 83, 85, 96, 145-46). It was determined at the

administrative level that plaintiff had not engaged in substantial gainful activity since his alleged

onset date. (Tr. 13). Plaintiff was born August 16, 1953 (Tr. 61, 159), and the record shows he

has a tenth grade education. (Tr. 15, 100). According to plaintiff’s Adult Disability Report, he

has worked as an operator in the oil field business. (Tr. 84).2 

Plaintiff filed a Request for Hearing before an Administrative Law Judge (“ALJ”), and a

hearing was held on September 12, 2001. (Tr. 22-39). On October 3, 2001, ALJ Gary L.

Vanderhoof rendered an unfavorable decision, finding plaintiff not entitled to benefits at any

time relevant to the decision. (Tr. 13-16). The ALJ determined plaintiff retained, “the residual

functional capacity to do at least sedentary work.” (Tr. 15). On January 2, 2004, the Appeals

Council denied plaintiff’s request for review of the decision of the ALJ (Tr.6-8), rendering the

ALJ’s decision the final decision of the defendant Commissioner. Plaintiff now seeks judicial

review. 

II.

STANDARD OF REVIEW

In reviewing disability determinations by the Commissioner, this court’s role is limited to

determining whether substantial evidence exists in the record, considered as a whole, to support

 

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the Commissioner’s factual findings and whether any errors of law were made. Anderson v.

Sullivan, 887 F.2d 630, 633 (5th Cir. 1989). To determine whether substantial evidence of

disability exists, four elements of proof must be weighed: (1) objective medical facts; 

(2) diagnoses and opinions of treating and examining physicians; (3) claimant’s subjective

evidence of pain and disability; and (4) claimant’s age, education, and work history. Wren v.

Sullivan, 925 F.2d 123, 126 (5th Cir. 1991) (citing DePaepe v. Richardson, 464 F.2d 92, 94(5th

Cir. 1972)). If the Commissioner's findings are supported by substantial evidence, they are

conclusive, and the reviewing court may not substitute its own judgment for that of the

Commissioner, even if the court determines the evidence preponderates toward a different

finding. Strickland v. Harris, 615 F.2d 1103, 1106 (5th Cir. 1980). Conflicts in the evidence are

to be resolved by the Commissioner, not the courts, Laffoon v. Califano, 558 F.2d 253, 254 (5th

Cir. 1977), and only a "conspicuous absence of credible choices" or "no contrary medical

evidence" will produce a finding of no substantial evidence. Hames v. Heckler, 707 F.2d at 164. 

Stated differently, the level of review is not de novo. The fact that the ALJ could have found

plaintiff to be disabled is not the issue. The ALJ did not do this, and the case comes to federal

court with the issue being limited to whether there was substantial evidence to support the ALJ

decision.

III.

ISSUES

The ALJ made the determination that plaintiff is not disabled at Step Five of the five-step

sequential analysis. Therefore, this Court is limited to reviewing only whether there was

substantial evidence in the record as a whole supporting a finding that plaintiff retained the

ability to perform other work that exists in significant numbers in the national economy, and

 

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whether the proper legal standards were applied in reaching this decision. To this extent,

plaintiff presents the following issue:

Whether defendant’s finding as to plaintiff’s residual functional capacity (RFC) is

supported by substantial evidence.

IV.

MERITS

Plaintiff argues defendant’s finding as to plaintiff’s residual functional capacity (RFC),

that plaintiff could perform a full range of sedentary work, is not supported by substantial

evidence. The ALJ has characterized sedentary work to include, “lifting a maximum of 10

pounds, with occasional lifting and carrying of items of small tools...primarily sitting, with only

occasional standing and walking.” (Tr. 15). 

First, plaintiff argues the ALJ determination that plaintiff’s allegations of physical

limitations were not credible was improperly based upon an erroneous assessment of plaintiff’s

daily activities and on plaintiff’s failure to seek treatment for his hepatitis C, even though

plaintiff repeatedly testified, in his application and in person, that such failure was due to

financial troubles. 

Second, plaintiff avers the ALJ committed reversible error when he failed to assess

plaintiff’s work-related abilities on a function-by-function basis as required by 20 CFR 404.1545

(b)(c)(d) and 20 CFR 416.945 (b)(c)(d). As a sub-part to this argument, plaintiff presents the

ALJ’s failure to evaluate plaintiff’s work-related abilities as evidence that the ALJ failed to

determine whether plaintiff had any non-exertional impairments which would preclude the use of

the Medical-Vocational Guidelines (the “Grids”).

Defendant’s brief does not directly address plaintiff’s contention that the ALJ’s

 

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description of plaintiff’s daily activities was inaccurate.

 Plaintiff argues the ALJ erred by basing his credibility determination in part on

plaintiff’s daily living activities including plaintiff’s ability to drive, personally groom himself,

maintain his residence, sit for extended periods and prepare his own meals. (Plaintiff’s Brief at

10-11). Defendant does not rebut this argument but instead cites to the medical reports of

plaintiff’s treating physician, Dr. Craig R. Schaffer, as evidence that plaintiff’s allegations

regarding his physical limitations were exaggerated. Defendant then adds a discussion of Fifth

Circuit law on disabling pain, a discussion of plaintiff’s inconsistent earnings record, a

discussion of plaintiff’s history of drug use and how that testimony was contradicted by the

medical records of Dr. Taylor Carlisle, a reference to plaintiff’s failure to follow a prescribed

treatment plan, and plaintiff’s ability to purchase the “luxury items” of beer and cigarettes

instead of medication. (Defendant’s Brief at 7-8). With the exception of the prescribed

treatment plan, there is no indication in the record or in the ALJ’s opinion that the ALJ ever

considered these factors in making his determination of plaintiff’s credibility. In his opinion, the

ALJ stated,

The claimant has symptom-producing medical problems, but I find that his

testimony and other evidence do not credibly establish functional limitations to

the extent alleged. He stated in the record that he cannot work because of

weakness and fatigue. His list of symptoms and disabling limitations included

severe fatigue, diarrhea, weight loss, and aching and swelling in the joints due to

gout. Although it has been recommended that he take Interferon treatment, he has

been unable to do so because of his financial situation. He claims to have tried to

get on indigent care but has not been successful in doing so. He testified at his

hearing that his gout comes and goes and he spends most of his day lying around

watching television. His mother comes to check on him once a week and he has a

friend who sees him once a month. 

....

After reviewing the claimant’s medical record, symptoms and complaints in the

 

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light of 20 CFR 404.1529 and 416.929, I find that he indeed has “severe”

impairments, but his overall condition does not preclude him from performing a

wide range of sedentary work activity. He has alleged several medical problems,

but he appears to have exaggerated their severity and the functional limitations

they impose. He said he suffers from Hepatitis C and A, and gout, with

symptoms of severe fatigue, diarrhea and left knee pain. The medical evidence

does not show a degree of limitation that would eliminate sedentary work. Mr.

Jennings stated he suffers from Hepatitis C and A, but has done little to treat this

problem. He also alleges gouty arthritis with intermittent pain in his left knee, but

this condition appears to be under control with medication. It does not appear to

produce significant functional restrictions. The claimant’s treatment regiment

(sic) does not support the alleged severity he has attributed to his liver disease.

The claimant maintains a lifestyle that I find essentially consistent with sedentary

work activity. He states that he can drive an automobile and can take care of his

personal needs without help. He lives alone and had not required any particular

help in maintaining his residence. He watches television and prepares his own

meals daily. The claimant appears physically capable of doing sedentary work

and mentally capable of doing basic and routine work tasks.

(Tr. 14-15, citation omitted). It appears, as argued by plaintiff, that the ALJ primarily based his

opinion as to plaintiff’s credibility on his characterization of plaintiff’s daily living activities and

plaintiff’s failure to seek treatment for his Hepatitis C. Specifically, plaintiff appears to argue

the ALJ’s summation of plaintiff’s daily living activities were not representative of plaintiff’s

testimony of his actual daily living activities. When questioned by his representative, plaintiff

testified: 

Q: Do you do your own housework?

A: What gets done.

Q: Do you like do the dishes?

A: Yeah, sometimes.

Q: Do you have any trouble doing the dishes?

A: Well, if I do them, like, I’ll sit down. I get shaky. Anything I do any more (sic) than like

ten minutes, I have to stop.

....

Q: How are you - - do you have any hobbies that you do, or how are you spending your

time?

A: Right now?

Q: Yeah.

 

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A: Just sitting around watching television. That’s all [INAUDIBLE].

Q: Do you - - what about going grocery shopping? Do you do that?

A: My mother does.

Q: In an average month, how many times would you say you leave your home?

A: Maybe three, four.

Q: What kind of places do you go when you leave?

A: I go to my mother’s. I go with her when she goes to the doctor.

Q: Does it bother you to sit?

A: For long periods of time, it does.

Q: What bothers you if you’re sitting?

A: Just get tired.

Q: [INAUDIBLE]. How long can you stand?

A: Ten minutes or so.

Q: What about lifting? Is there [INAUDIBLE] that you can lift?

A: [INAUDIBLE] lift with my left arm.

Q: Are you left- or right-handed?

A: Right-handed.

Q: Right-handed?

A: Yes, m’am.

Q: Can you lift a gallon of milk?

A: No, m’am.

Q: When you sit too long, can you tell me how long is too long?

A: 20 minutes or so.

(Tr. 30-31). Comparison of the ALJ’s characterization of plaintiff’s daily living activities with

plaintiff’s testimony shows the reference by the ALJ to be flawed. The ALJ is certainly entitled

to assess the credibility of plaintiff’s testimony. However, error is committed if the RFC

determination is based upon a misunderstanding or mischaracterization of plaintiff’s testimony

regarding his daily activities. Further, defendant failed to even discuss this issue, only stating in

his brief that, “...Jennings was able to live on his own, care for his personal needs, prepare meals,

do dishes, perform basic home maintenance activities, and drive a car. (Defendant’s Brief at 7). 

Plaintiff has fully briefed the issue and demonstrated that plaintiff’s testimony of his daily living

activities are not consistent with sedentary work activity and/or are inconsistent with sustained

work activity. (Plaintiff’s Brief at 9-13).

Additionally, the ALJ referenced plaintiff’s failure to follow a prescribed treatment for

 

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his Hepatitis C as evidence of his lack of credibility. However, as argued by plaintiff, his

applications and medical records as well as his testimony demonstrate his inability to afford the

Interferon treatment for his Hepatitis C. (Tr. 27, 68-69, 90, 96, 145, 148). Defendant argues

plaintiff lacked credibility in this regard because plaintiff could afford his gout medication and

could afford luxury items of beer and cigarettes. (Defendant’s Brief at 8). The record does not,

however, reflect the cost of the medicines at issue. Therefore, the inference that plaintiff should

be able to afford Interferon treatment because he can afford gout medication and cigarettes has

no factual basis in the record. Further, this was not the rationale used by the ALJ. The ALJ

referenced plaintiff’s inability to afford treatment for his Hepatitis C (Tr. 14), noted Dr.

Schaffer’s notes wherein the doctor said plaintiff had become discouraged in his pursuit of

medical treatment (referencing plaintiff’s attempts to obtain indigent care) and noted that

plaintiff had done little to treat his Hepatitis (Tr. 15). It is unclear why the ALJ references

plaintiff’s inability to pay for the Interferon treatment and then finds plaintiff has done little to

treat his problem. Moreover, while the ALJ finds plaintiff suffers the severe impairment of

chronic liver disease (Tr. 13) he then concludes, “There is little objective documentation of a

serious problem with his liver disease, other than claimant’s own subjective allegations, which I

find to be less than fully credible.” (Tr. 16). This completely contradicts the medical evidence

of record. It is undisputed that plaintiff suffers Hepatitis C. (Tr. 119, 120, 145). Interferon

treatment was recommended but plaintiff stated he had no money to pay for it. As cited by

plaintiff, SSR 96-7p makes it clear the ALJ, 

...must not draw any inferences about an individual's symptoms and their

functional effects from a failure to seek or pursue regular medical treatment

without first considering any explanations that the individual may provide, or

other information in the case record, that may explain infrequent or irregular

medical visits or failure to seek medical treatment....The individual may be unable

 

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to afford treatment and may not have access to free or low-cost medical services.

(SSR 96-7p at 7). This is exactly what the ALJ appears to have done. 

Next, plaintiff complains the ALJ failed to identify his functional limitations/restrictions 

and assess his work-related abilities on a function-by-function basis. The Court agrees. For

example, plaintiff testified he could not sit longer than twenty (20) minutes without getting tired. 

(Tr. 30-31). Upon examination on June 7, 2000, Dr. Schaffer noted “Patient appears to be rather

shaky and he is very slow to walk. He is in no acute distress, but his general level of strength

appears diminished and he is somewhat gaunt in appearance.” (Tr. 147). Critically, the ALJ

acknowledged the existence of non-exertional impairments of gout and liver disease which

would preclude use of the Grids but then found plaintiff’s gout to be under control with

medication and found little objective documentation of a serious problem with his liver disease

(Tr. 16), even though he earlier concluded the liver disease was a severe impairment which

caused fatigue and diarrhea, possible non-exertional impairments themselves. (Tr. 13). Further,

plaintiff suffers from Hepatitis C, a disease which causes fatigue. (See plaintiff’s brief at p. 12,

citing the Merck Manual of Diagnosis of Therapy). The ALJ was bound to assess the nonexertional side effect of fatigue and its effect on plaintiff’s abilities including whether plaintiff

would be able to work eight hour days. Before there can be a determination of no non-exertional

impairments, thereby allowing use of the Medical-Vocational Guidelines, there must be some

analysis of plaintiff’s complaints of fatigue. In light of the undisputed evidence of plaintiff’s

liver disease and/or Hepatitis C, the record (ALJ) must reflect the basis for any determination

that no non-exertional impairments exist. The record does not reflect such. 

 

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V.

RECOMMENDATION

THEREFORE, for all of the reasons set forth above, it is the opinion and

recommendation of the undersigned to the United States District Judge that the decision of the

defendant Commissioner finding plaintiff not disabled and not entitled to a period of disability

benefits be REVERSED and the case be REMANDED for further administrative findings at Step

5, possibly including the taking of testimony from a Vocational Expert consistent with this

Report and Recommendation.

VI.

INSTRUCTIONS FOR SERVICE

The United States District Clerk is directed to send a copy of this Report and

Recommendation to each party by the most efficient means available.

IT IS SO RECOMMENDED. 

ENTERED this 2nd day of March 2007.

 ______________________________________

 CLINTON E. AVERITTE

 UNITED STATES MAGISTRATE JUDGE

* NOTICE OF RIGHT TO OBJECT *

Any party may object to these proposed findings, conclusions and recommendation. In

the event a party wishes to object, they are hereby NOTIFIED that the deadline for filing

objections is eleven (11) days from the date of filing as indicated by the “entered” date directly

above the signature line. Service is complete upon mailing, Fed. R. Civ. P. 5(b)(2)(B), or

transmission by electronic means, Fed. R. Civ. P. 5(b)(2)(D). When service is made by mail or

electronic means, three (3) days are added after the prescribed period. Fed. R. Civ. P. 6(e). 

Therefore, any objections must be filed on or before the fourteenth (14th) day after this

recommendation is filed as indicated by the “entered” date. See 28 U.S.C. § 636(b); Fed. R.

Civ. P. 72(b); R. 4(a)(1) of Miscellaneous Order No. 6, as authorized by Local Rule 3.1, Local

Rules of the United States District Courts for the Northern District of Texas. 

 

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Any such objections shall be made in a written pleading entitled “Objections to the

Report and Recommendation.” Objecting parties shall file the written objections with the United

States District Clerk and serve a copy of such objections on all other parties. A party’s failure to

timely file written objections to the proposed findings, conclusions, and recommendation

contained in this report shall bar an aggrieved party, except upon grounds of plain error, from

attacking on appeal the unobjected-to proposed factual findings, legal conclusions, and

recommendation set forth by the Magistrate Judge in this report and accepted by the district

court. See Douglass v. United Services Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996);

Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th Cir. 1988).

 

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