IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

WICHITA FALLS DIVISION

KAREN P. MORGAN, )

Plaintiff, )

)

v. ) Civil Action No.

) 7:05-CV-102-BF (R)

COMMISSIONER OF THE SOCIAL )

SECURITY ADMINISTRATION, )

Defendant. )

MEMORANDUM OPINION AND ORDER

This is a consent case before the United States Magistrate Judge. Plaintiff, Karen P. Morgan,

(“Plaintiff”) appeals from the decision of the Commissioner of the Social Security Administration

(“Commissioner”), denying her claims for disability insurance benefits (“DIB”) under Title II of the

Social Security Act (“Act”) and Supplemental Security Income benefits (“SSI”) under Title XVI of

the Act. 42 U.S.C. §§ 432, 1382c. The administrative law judge (“ALJ”) found that Plaintiff

retained the ability to perform a wide range of light work and based upon her residual functional

capacity (“RFC”), found that Plaintiff could perform her past relevant work (“PRW”) as a fast food

worker. He further found that she could perform other work that exists in significant numbers in the

national and local economies. Plaintiff contends the ALJ’s finding as to Plaintiff’s RFC (and thus

his finding that she was not disabled from August 31, 2001 through January 21, 2005) is not

supported by substantial evidence. For the reasons that follow, the Commissioner's decision is

AFFIRMED. 

I.

Plaintiff seeks DIB and SSI, alleging the following exertional and non-exertional limitations:

eye, right foot, and ankle trouble; difficulty walking and standing; knee impairments; carpal tunnel

syndrome in both wrists; left arm numbness; malformed vertebrae; and the inability to sit and stand

 

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too long. (Tr. at 60-69.) She alleges that she became disabled on August 31, 2001. (Id.) 

Plaintiff was born in October, 1955. (Tr. at 51.) She has a high school education and two

years of college. (Tr. at 67, 393.) Plaintiff has PRW experience as a “typesetter/layout,” “bindery

worker,” “photographer helper,” “fast food worker,” and “photographer, self-employed.” (Tr. at

302-03.) 

Plaintiff was forty-nine years old on December 14, 2004, the date of the hearing before the

ALJ. (Tr. at 14.) Plaintiff and a vocational expert (“VE”) testified at the hearing. The ALJ

determined that Plaintiff could perform a wide range of light work activity including her PRW as

a “fast food worker,” as well as other work existing in significant numbers in the national and local

economies such as “ticket taker” and “sales attendant.” (Tr. at 18.) Therefore, the ALJ found that

Plaintiff was not disabled. (Tr. at 19, Finding Nos. 8 and 9.) The Appeals Council denied Plaintiff’s

request for review, and the ALJ’s decision became the Commissioner’s final decision.

II.

A claimant must prove that she is disabled for purposes of the Social Security Act to be

entitled to social security benefits. Leggett v. Chater, 67 F.3d 558, 563-64 (5th Cir. 1995); 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 inquiry to determine whether a claimant

is disabled. Those steps are: 

 

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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 she has done in the past, a finding

of “not disabled” must be made.

5. If an individual’s impairment precludes her from performing her 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 inquiry, the burden lies with the claimant to prove her disability.

Leggett, 67 F.3d at 564. The inquiry 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

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, by expert vocational

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

The Commissioner’s determination is afforded great deference. Leggett, 67 F.3d at 564.

Judicial review of the Commissioner’s findings is limited to whether the decision to deny benefits

is supported by substantial evidence and to whether the proper legal standard was utilized.

Greenspan, 38 F.3d at 236; 42 U.S.C.A. § 405(g). Substantial evidence is defined as “that which

is relevant and sufficient for a reasonable mind to accept as adequate to support a conclusion; it must

 

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 The regulations define light work as work that involves “ . . . a good deal of walking or

standing . . . .” 20 C.F.R. §§ 404.1567(b) and 416.967(b).

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be more than a scintilla, but it need not be a preponderance.” Leggett, 67 F.3d at 564. The

reviewing court does not reweigh the evidence, retry the issues, or substitute its own judgment, but

scrutinizes the record to determine whether substantial evidence is present. Greenspan, 38 F.3d at

236.

III.

The ALJ issued a decision on January 21, 2005, finding that Plaintiff had severe impairments

of (1) disorders of the spine and (2) left hand palsey. (Tr. at 17.) The ALJ further found that the

impairments were not severe enough to meet or medically equal, either singly or in combination, one

of the impairments listed in Appendix 1, Subpart P, Regulations No. 4. (Id.) The ALJ determined

that Plaintiff retained the RFC for a wide range of light work that would require her to lift no more

than 20 pounds at a time, with frequent lifting or carrying of objects weighing up to 10 pounds. (Id.)

Plaintiff would be required to do “a good deal of walking or standing,1

 or when it involve[d] sitting

most of the time [she would be required to do] some pushing and pulling of arm or leg controls.”

(Tr. at 18-19.) The ALJ found that Plaintiff can “occasionally bend forward at the waist;

occasionally bend at the knees to come to rest on the knees; and occasionally bend downward by

bending the legs and spine.” (Id.) The ALJ found that Plaintiff was restricted from more than

frequent handling with the left hand and from more than frequent reading of detailed instructions

during the day. (Id.) 

Plaintiff contends that the ALJ’s decision that Plaintiff is not disabled should be reversed and

remanded because substantial evidence does not support the ALJ’s determination of Plaintiff’s RFC.

 

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(Pl.s’ Br. at 16-19.) Specifically, Plaintiff contends that RFC should have included a limitation on

walking and standing. (Id. at 17.)

In May, 1999, Plaintiff broke her foot in an automobile accident. (Tr. 107.) By August

1999, Plaintiff was released to part-time work (with a restriction not to carry more than thirty

pounds) because the wound had “healed completely.” (Tr. at 105-06.) Plaintiff was examined at

the Holliday Clinic on January 17, 2001, approximately six months before she alleges that she

became disabled. (Tr. at 142.) She had no deformities, except for surgical scars on the right foot.

Her back had no curvature; she had full range of motion in her arms, legs, and spinal column. Her

muscle tone was good. Her grips were equal bilaterally, and rapid alternative movements were

within normal limits. (Id.) She had a steady gate and her sensation was within normal limits. Her

deep tendon reflexes were present and equal. (Tr. at 142-43.)

In August 2000, one year after Plaintiff alleged that she became disabled, she reported to the

Holliday clinic with “no complaints . . . with the exception of some occasional fatigue,” which she

attributed to emotional stress from taking care of her husband who was chronically ill. (Tr. at 124.)

At that time, Plaintiff stated that she stayed active working in her yard and with her horses. (Id.) 

Plaintiff reported to the Holliday Clinic in February 2003, with complaints of arm pain that

she treated with Aleve. (Tr. at 120.) Plaintiff had a full range of motion in the joints of her left arm

and she could perform most activities of daily living without trouble. (Id.) If her left hand was

involved at all, there was only a “minimal amount of limitation.” (Id.) 

Brenda Chang, M.D., (“Dr. Chang”) examined Plaintiff in March 2003, for complaints of

carpel tunnel syndrome, right foot and knee problems, left arm problems, vision problems, the

inability to walk greater than one mile, and the inability to stand more than 45 minutes due to back

 

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pain. After thoroughly examining Plaintiff, Dr. Chang concluded that Plaintiff could work in

activities such as sitting, standing, moving about with a cane, and lifting/carrying/handling objects

that are not heavy. Plaintiff could hear and speak. There was no end organ damage of the eyes,

kidneys, or heart. Her neurological status was normal. Her pain corresponded to clinical findings.

She had both active and passive ranges of motion in the affected and symptomatic joints, and the

doctor found a full range of motion with some pain. There was no muscle atrophy in any of the

extremities. Her gait was normal. She could do heel and toe walking with a cane. She could not

squat or hop on the right foot but she could tandem walk. Her left hand grip was decreased. She

could not reach, handle, finger, or feel objects with her left hand. (Tr. at 148-50.)

Gordon Garcia, M.D., (“Dr. Garcia”) performed a consultative examination of Plaintiff on

July 30, 2003. Upon examination, Dr. Garcia found, inter alia, that Plaintiff could ambulate

normally with minimal assistance (a cane). She showed no difficulty reaching, handling, and feeling

objects and apparently had no difficulty with prolonged sitting and standing. (Tr. at 170.)

In August 2003, the state agency consultant concluded that Plaintiff’s allegations of her

limitations were not wholly supported by the medical evidence. The agency physician concluded

that Plaintiff could perform light work with no postural manipulative, communicative, or

environmental limitations from carpel tunnel syndrome of the left wrist and low back pain. He

specifically found that she could stand and/or walk (with normal breaks) for a total of six hours in

an 8-hour workday and that she could sit (with normal breaks) for about six hours in an 8-hour

workday. (Tr. at 151-58.)

Plaintiff reported that she lived with her husband in the country. She claimed that she drove

only two hours a month. She said that she did light housework, cooked, watched television, and

 

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listened to the radio. She claimed she could not see to put on makeup although she said that she read

a lot. She reported that she shopped for groceries every week for one hour and visited friends and

relatives monthly for an hour. Plaintiff claimed that she could stand only twenty minutes, walk for

around 30 minutes, and sit for 15 or 20 minutes. (Tr. at 299-301.) The ALJ found that the

claimant’s allegations regarding her limitations were not totally credible. (Tr. at 19.)

“Residual functional capacity” refers to the claimant’s ability to do work despite any

physical or mental impairments. 20 C.F.R. § 404.1545(a). The ALJ has the responsibility to

determine the Plaintiff’s residual functional capacity at the administrative hearing based on all of

the evidence, including the medical records, observations of treating physicians, observations of

others, and Plaintiff’s own description of her limitations. Anderson v. Shalala, 51 F.3d 777, 779 (8th

Cir. 1995). The ALJ must resolve conflicts in the evidence and make credibility determinations

based on substantial evidence. Lovelace v. Bowen, 813 F.2d 55, 59-60 (5th Cir. 1987); Allen v.

Schweiker, 642 F.2d 799, 801 (5th Cir. 1981) (per curiam). “The [proper] inquiry [] is whether the

record, read as a whole, yields such evidence as would allow a reasonable mind to accept the

conclusions reached by the ALJ.” Loza v. Apfel, 219 F.3d 378, 393 (5th Cir. 2000). “An ALJ's

decision 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.” Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997). See also Moad v. Massanari, 260

F.3d 887, 890 (8th Cir. 2001) (“[W]e may not reverse merely because substantial evidence exists

for the opposite decision.”). “[C]onflicts in the evidence are for the Commissioner and not the

courts to resolve.” Masterson v. Barnhart, 309 F.3d 267, 272 (5th Cir. 2002) (quoting Newton v.

Apfel, 209 F.3d 448, 452 (5th Cir. 2000)). 

 

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The determination of a claimant’s RFC status is reserved to the Commissioner. 20 C.F.R.

§§ 404.1527(e)(2) and 416.927(e)(2). See Frank v. Barnhart, 326 F.3d 618, 620 (5th Cir. 2003)

(citing to 20 C.F.R. § 404.1527(e) and (e)(3) to explain that legal conclusions made by a treating

physician have no “special significance” and that the ALJ is not required to give such conclusions

controlling weight). An absence of objective factors which indicate severe or chronic pain,

including limitation of joint motion, atrophy, weight loss, or impairment of general nutrition, is

significant and can justify an ALJ’s conclusion that the complained of pain is not debilitating. Falco

v. Shalala, 27 F.3d 160, 163 (5th Cir. 1994); Hollis v. Bowen, 837 F.2d 1378, 1384 (5th Cir. 1988).

Further, a claimant’s daily activities are relevant to a disability determination. Griego v. Sullivan,

940 F.2d 942, 945 (5th Cir. 1991).

The ALJ did not err by failing to adopt all of the limitations suggested by Plaintiff or her

doctors when he determined Plaintiff’s RFC. The ALJ considered the record as a whole, as he was

required to do in making his determination of Plaintiff’s RFC. Although Plaintiff’s limitations

precluded the ALJ from assuming that she could perform the full range of light jobs, they did not

prevent the ALJ from finding that significant light jobs were still available to her. See Books v.

Chater, 91 F.3d 972, 980 (7th Cir. 1996). The ALJ was not required to seek VE testimony;

however, the ALJ called a VE to determine whether there were a substantial number of jobs

available to Plaintiff given her ability to perform light work with the limitations that the ALJ found

to exist. The ALJ necessarily considered the limitations that Plaintiff is claiming on appeal because

her counsel cross-examined the VE and posed a hypothetical which included those limitations. (Tr.

at 306.) The ALJ implicitly rejected those additional limitations as not supported by the record.

The Court finds that substantial evidence supports the ALJ’s determination of Plaintiff’s RFC and

 

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that reversal and remand for further proceedings is not warranted. Accordingly, the Commissioner’s

decision that Plaintiff is not disabled and not entitled to DIB and SSI payments is AFFIRMED.

 Signed February 20, 2007.

_____________________________________

PAUL D. STICKNEY

UNITED STATES MAGISTRATE JUDGE

 

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