IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

KELLEY A. KIME, §

 §

Plaintiff, §

 § Civil Action No. 3:04-CV-2170-D

VS. §

 §

JO ANNE B. BARNHART, §

Commissioner of Social Security,§

 §

Defendant. §

MEMORANDUM OPINION

Plaintiff Kelley A. Kime (“Kime”) brings this action under

§ 205(g) of the Social Security Act, 42 U.S.C. § 405(g), for review

of the final decision of the Commissioner of Social Security

(“Commissioner”) denying her application for a period of disability

and disability insurance benefits under title II of the Act. For

the reasons that follow, the court AFFIRMS the Commissioner’s

decision.

I

At the time of her hearing before an administrative law judge

(“ALJ”), Kime was 34 years old. She has a twelfth grade education

and past relevant work as a credit clerk, senior credit clerk, and

accounting manager. Kime contends that she has been disabled since

February 29, 2000 due to deep vein thrombosis (“DVT”), a condition

in which blood clots in a deep vein, such as in the legs, pelvis,

or arms.

Kime applied for disability insurance benefits on May 7, 2001.

Her application was denied on initial consideration and

 

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reconsideration, and she subsequently received a hearing before an

ALJ. Kime attended the hearing on May 9, 2002 without counsel. In

addition to Kime, a medical expert (“ME”) who specializes in

internal medicine and cardiovascular disease, and a vocational

expert (“VE”), testified. Kime testified to having had multiple

surgeries on her legs and explained that she must periodically wear

a compression sleeve on her leg to prevent DVT. She also stated

that she cannot stand for long periods and, if sitting for long

periods, she must take breaks approximately every 90 minutes to

stretch her legs. Kime also testified that her treating physician

instructed her to keep her left leg elevated to prevent DVT.

The ME testified that Kime’s medical impairments did not

individually or in combination meet a listing in Appendix 1,

Subpart P, Regulation No. 4 of the Social Security Regulations. R.

67. When asked for his opinion as to her RFC, the ME stated: 

The problem I’m having, Your Honor, is the one

I told you about, is —— but, let’s assume that

that’s related to her ven[o]us disease. And I

think a sedentary RFC with a provision that

she can elevate her left leg would be

appropriate. And postural restrictions to

occasional.

R. 68. In response to a hypothetical question that the ALJ

constructed based on the ME’s opinion, the VE testified that Kime

could not perform her past relevant work if her medical impairment

required that she keep her left leg elevated for a period during

the day. R. 71. The VE also opined that, if Kime were required to

 

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keep her leg elevated much of the day, there would be no job in the

national or regional economy that she could perform. R. 72.

The ALJ then continued questioning the ME because he “want[ed]

to continue the discussion about elevating the leg.” R. 73. He

asked the ME to elaborate on his testimony that he “felt elevating

her left leg would be something that would be important.” Id. The

ME indicated that such a characterization of his testimony might

not be accurate, and he stated that he was confused about her

symptomatology. He explained that he had credited her statements

that she would experience a burning pain in her leg and that

elevating the leg tended to prevent pain. But he noted that he was

unsure what was Kime’s medically determinable impairment (“MDI”).

The ALJ then asked, apparently in spite of the ME’s uncertainty

concerning the precise MDI, whether the ME felt, based on what Kime

had testified to and what he had seen in the record, that she

needed to have her left leg elevated during the daytime if she was

working. The following exchange took place:

ME: Well, that hinges on that question.

What is the MDI? I mean, if we

don’t have an MDI, we don’t have a

limitation.

ALJ: So your answer is you don’t know?

ME: I guess.

ALJ: Okay. You would have no difficulty

then, in your opinion based on what

you’ve heard with her sitting at a

desk with her feet down, both legs

all day.

 

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ME: That’s correct, with the ability to

move her leg and shift position as

was stipulated.

ALJ: Such as maybe standing up and

stretching?

ME: That’s right. Or moving her leg

while that’s —— while she’s sitting.

R. 73-74. 

The ALJ subsequently returned to the VE and posed a

hypothetical similar to the one previously posited. In the

question, the ALJ assumed that, instead of having to elevate her

left leg, Kime was permitted to stand occasionally and stretch and

shift positions while seated. The VE responded that Kime would be

able to perform her past relevant jobs of senior credit

administrator and account manager. 

Based on this testimony, the ALJ concluded at step four of the

five-step sequential evaluation process that Kime is not disabled.

He found that Kime has the following impairments: Factor V Leiden

(familial disorder), a meniscus tear (residual pain), obesity, and

primary nerve trauma (numbness). R. 11. He concluded that the

impairments are severe but do not meet or equal an impairment in

Appendix 1, Subpart P, Regulation No. 4 of the Social Security

Regulations. R. 13. The ALJ found that Kime has the residual

functional capacity (“RFC”) to lift ten pounds occasionally,

occasionally to lift/carry articles like docket files, ledgers, and

smalls tools, to stand for two hours and sit for six hours of an

 

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eight-hour workday, with an opportunity to stretch at 60-90 minute

intervals, with no kneeling, squatting, crawling, or balancing

ropes, ladders, or machinery, with occasional rest. He concluded

that she could perform her past relevant work as a senior credit

clerk or accounting manager. R. 13.

II

The court’s review of the Commissioner’s decision is limited

to determining whether substantial evidence supports the decision

and whether the Commissioner applied the proper legal standards to

evaluate the evidence. Ripley v. Chater, 67 F.3d 552, 555 (5th

Cir. 1995); Martinez v. Chater, 64 F.3d 172, 173 (5th Cir. 1995)

(per curiam). “The Commissioner’s decision is granted great

deference and will not be disturbed unless the reviewing court

cannot find substantial evidence in the record to support the

Commissioner's decision or finds that the Commissioner made an

error of law.” Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995)

(footnotes omitted). 

“The court may not reweigh the evidence or try the issues de

novo or substitute its judgment for that of the [Commissioner].”

Kane v. Heckler, 731 F.2d 1216, 1219 (5th Cir. 1984). “If the

Commissioner's findings are supported by substantial evidence, then

the findings are conclusive and the Commissioner’s decision must be

affirmed.” Martinez, 64 F.3d at 173. “Substantial evidence is

‘such relevant evidence as a reasonable mind might accept as

 

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adequate to support a conclusion.’” Greenspan v. Shalala, 38 F.3d

232, 236 (5th Cir. 1994) (quoting Richardson v. Perales, 402 U.S.

389, 401 (1971)). “It is more than a mere scintilla, and less than

a preponderance.” Spellman v. Shalala, 1 F.3d 357, 360 (5th Cir.

1993) (citing Moore v. Sullivan, 919 F.2d 901, 904 (5th Cir. 1990)

(per curiam)). “To make a finding of ‘no substantial evidence,’

[the court] must conclude that there is a ‘conspicuous absence of

credible choices’ or ‘no contrary medical evidence.’” Dellolio v.

Heckler, 705 F.2d 123, 125 (5th Cir. 1983) (citing Hemphill v.

Weinberger, 483 F.2d 1137 (5th Cir. 1973)). Even if the court

should determine that the evidence preponderates in the claimant’s

favor, the court must still affirm the Commissioner’s findings if

there is substantial evidence to support these findings. See Carry

v. Heckler, 750 F.2d 479, 482 (5th Cir. 1985). The resolution of

conflicting evidence is for the Commissioner rather than for this

court. See Patton v. Schweiker, 697 F.2d 590, 592 (5th Cir. 1983)

(per curiam). 

To determine whether a claimant is disabled, the Commissioner

uses a five-step sequential inquiry. Leggett, 67 F.3d at 563;

Martinez, 64 F.3d at 173-74. The Commissioner must consider

whether (1) the claimant is presently working; (2) the claimant’s

ability to work is significantly limited by a physical or mental

impairment; (3) the claimant’s impairment meets or equals an

impairment listed in Appendix 1, Subpart P, Regulation No. 4; (4)

 

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the impairment prevents the claimant from doing past relevant work;

and (5) the claimant cannot presently perform relevant work that

exists in significant numbers in the national economy. Leggett, 67

F.3d at 563 n.2; Martinez, 64 F.3d at 173-74; 20 C.F.R. § 404.1520

(2004). “The burden of proof is on the claimant for the first four

steps, but shifts to the [Commissioner] at step five.” Bowling v.

Shalala, 36 F.3d 431, 435 (5th Cir. 1994) (per curiam) (citing

Anderson v. Sullivan, 887 F.2d 630, 632-33 (5th Cir. 1989) (per

curiam)). At step five, once the Commissioner demonstrates that

other jobs are available to a claimant, the burden of proof shifts

to the claimant to rebut this finding. Selders v. Sullivan, 914

F.2d 614, 618 (5th Cir. 1990) (per curiam).

When determining the propriety of a decision of “not

disabled,” this court’s function is to ascertain whether the record

considered as a whole contains substantial evidence that supports

the final decision of the Commissioner, as trier of fact. The

court weighs four elements of proof to decide if there is

substantial evidence of disability: (1) objective medical facts;

(2) diagnoses and opinions of treating and examining physicians;

(3) the claimant’s subjective evidence of pain and disability; and

(4) age, education, and work history. Martinez, 64 F.3d at 174

(citing Wren v. Sullivan, 925 F.2d 123, 126 (5th Cir. 1991) (per

curiam)). 

The ALJ has a duty to develop the facts fully and fairly

 

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relating to an applicant’s claim for disability benefits. Ripley,

67 F.3d at 557. “If the ALJ does not satisfy this duty, [the]

decision is not substantially justified.” Id. Reversal of the

ALJ’s decision is appropriate, however, only if the applicant shows

that she was prejudiced. Id. The court will not overturn a

procedurally imperfect administrative ruling unless the substantive

rights of a party have been prejudiced. See Smith v. Chater, 962

F. Supp. 980, 984 (N.D. Tex. 1997) (Fitzwater, J.).

III

Kime advances two arguments in support of reversing the

Commissioner’s decision. 

A

In the first, in which she posits that the ALJ’s “decision is

wrong in many respects,” P. Br. at 3, Kime simply lists five

grounds (four ALJ statements and one ME failure to describe a

venous insufficiency) that she challenges as erroneous. She fails,

however, to demonstrate why these alleged errors are reversible,

even if they are assumed to be erroneous. Accordingly, Kime is not

entitled to relief on any ground set out under her first argument.

B

1

In her second argument, Kime contends that the opinions of the

ME, Howard H. McClure, Jr., M.D., are contradictory, and that this

led the ALJ to reach the wrong decision. 

 

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Kime cites evidence that she saw one of her treating

physicians, Donald S. Mierzwiak, M.D. (“Dr. Mierzwiak”), a

cardiologist, in April 2001 and again at least once monthly for

physical therapy. She states that she suffers from chronic DVT

that requires that she take Coumadin, a blood thinner. According

to Kime, her condition precludes her from sitting more than one and

one-half hours without standing and stretching her leg for 15-20

minutes, and she must walk around for about 20 minutes before she

can sit down again. She also testified during the hearing that she

is still having problems with her knee. Kime points to the ME’s

testimony that Kime’s medical problem is more likely to occur at

work than at home; that the requirement that she take Coumadin on

a long-term basis is a liability, that bleeding and the ability to

bruise are potential problems, and that her excessive menstrual

periods are probably related to her use of the drug; and that a

sedentary RFC with provisions that she elevate her left leg, and

postural restrictions, would be appropriate. Based on the ME’s

opinion, and in response to the ALJ’s hypothetical that

incorporated the limitations found in the opinion, the VE opined

that there were no jobs in the national or regional economy that

Kime could perform if she were required to elevate her left leg.

R. 72.

Kime complains that the VE’s opinion should have ended the

case. Instead, in response to further questioning from the ALJ,

 

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the ME changed his opinion concerning the necessity that Kime

elevate her left leg during the day. He opined that Kime could sit

all day at a desk, with her feet down, provided she could move her

leg and shift her position. The ALJ then altered the hypothetical

to the VE, inquiring whether Kime could perform her past relevant

work if permitted occasionally to stand up and stretch. The VE

opined that Kime could perform her past relevant work. 

Kime posits that there was no basis to change the

hypothetical, and that the change was based on the ME’s response of

“I guess” to the question, “So your answer is you don’t know?” She

points to evidence that, at the last job she held, she worked for

four weeks with her legs down, moved around occasionally, and still

passed a blood clot. Kime maintains that the ME’s apparent

unsupported change in his medical opinion testimony should not have

been the basis for the ALJ to alter his hypothetical to the VE,

because it goes against her testimony and the substantial weight of

the medical evidence. Kime cites Dr. Mierzwiak’s October 13, 2000

letter, in which he assessed her condition and stated that she had

been placed on bed rest due to a blood clot in her leg, she was to

elevate her leg whenever possible, and was allowed only limited

“up” time, because of the possibility that a clot could dislodge

and travel through her body, and he opined that her condition was

quite serious.

Kime also argues that the ME’s change of opinion is completely

 

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contradictory and therefore capricious. She reasons that the ME

initially opined that she had a sedentary RFC, provided she could

elevate her leg, then changed his conclusion to opine that she need

not elevate her leg for a certain amount of time each day.

The Commissioner maintains that the ALJ’s decision is proper.

Perhaps in an attempt to establish that the ALJ adequately

evaluated the medical evidence in the record, she discusses

evidence that the ALJ noted from Phillip M. Graehl, M.D., Dr.

Mierzwiak, Cynthia Rutherford, M.D. (“Dr. Rutherford”), and the ME.

She points out that the ME concluded that Kime did not need to

elevate her leg to work if she could move her leg, shift positions,

and stand up and stretch. Responding to Kime’s complaint that the

ME changed his initial opinion that she would need to elevate her

leg during the workday, the Commissioner maintains that the ALJ

properly relied on the ME’s opinion. She posits that the ME stated

that he did not know whether there was an MDI that would cause

such a limitation, and that he believed that, if Kime could move

her legs, shift positions, and stretch, this would compensate for

all her limitations. The Commissioner contends the ME is a

specialist in cardiovascular diseases and internal medicine, he

reviewed all the evidence and questioned Kime before concluding

that there was no medical necessity for her to elevate her leg at

work, and the fact of her weight loss, medication dosages, and

monitoring, and the fact that she had no surgeries planned,

 

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supported the ALJ’s decision that the record evidence did not

support a finding that Kime could perform no work activities.

Responding to Kime’s contention that the ALJ improperly

changed the hypothetical question, the Commissioner asserts that it

is not error for an ALJ to ask as many questions as he thinks are

necessary to evaluate a case properly. She also posits that the

ME’s expert testimony conflicted only with Kime’s subjective

complaints, not with any other medical opinion, and the ALJ was not

obligated to believe Kime’s complaints. She asserts that Dr.

Rutherford, a specialist in internal medicine and hematology, did

not opine that Kime was required to elevate her leg or that she

could perform limited work activities because of hypercoagulability

or other conditions that caused Kime’s leg problems.

Responding to Dr. Mierzwiak’s October 13, 2000 letter that

Kime was placed on bed rest due to a blood clot in her leg and that

she was to elevate her leg at all times possible, the Commissioner

contends that a review of other notes from the doctor shows that on

November 6, 2000 an MRI revealed that the blood clot had resolved,

meaning that Dr. Mierzwiak’s opinion concerned a temporary need for

Kime to elevate her leg.

The Commissioner posits that the ALJ properly re-framed the

hypothetical posed to the VE, based on all of Kime’s limitations

supported by the evidence and recognized by the ALJ, that his

reliance on the VE’s opinion that Kime can perform her past

 

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relevant work is also proper, and that his step four decision is

supported by substantial evidence.

2

Kime has failed to demonstrate that the ALJ erred by

developing additional testimony in which the ME changed his opinion

concerning her limitations. She has cited no authority that

suggests that an ALJ is obligated to accept an ME’s hearing

testimony without probing further. In fact, the ALJ “has the duty,

accentuated in the absence of counsel, to develop the facts fully

and fairly and to probe conscientiously for all of the relevant

information.” Ware v. Schweiker, 651 F.2d 408, 414 (5th Cir. Unit

A July 1981) (citations omitted).

Moreover, when the ME’s testimony is considered in its

entirety, the ALJ’s decision to revisit the ME’s opinion is fully

justified. The ME lacked confidence in his initial opinion due to

what he perceived to be atypical episodes of burning pain connected

with what Kime called phlebitis. This lack of conviction appeared

to be the result of ambiguities in Kime’s testimony regarding

whether one of her treating physicians assumed her condition is

subliminal phlebitis or venous in origin, and to the failure of the

Social Security Regulations, by and large, to recognize her

liability for a medical problem as an MDI. See R. 61-62. The ME

did opine that Kime had a medical problem that was more likely to

recur in a work setting than at home, and that it was a liability,

 

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but he also appeared to state that working would neither cause nor

prevent the problem. See R. 62. The ME also listed as medical

factors Factor V Leiden, a meniscus tear, mild obesity, and

perineal nerve trap, R. 63; he opined that taking Coumadin long

term was a liability, leading to potential problems of bleeding and

easy bruisability, but “not a for sure effect,” id.; he stated

that venous insufficiency of the lower extremity that results in

swelling should not result in restrictions unless there is

excessive swelling, which is usually controlled with a compression

garment, R. 64-65, and he opined concerning thrombosis illness

(blood clot) that the illness would persist and that Kime must take

her medication, but that he remained confused about the episodes

she experienced with almost daily burning up and down her whole

leg. R. 65-66. And when the ALJ asked that the ME opine

concerning Kime’s exertional level, the ME reiterated his

previously-stated difficulty (“The problem I’m having, Your Honor,

is the one I told you about[.]”), he then assumed a relationship to

her venous disease, and he concluded that a sedentary RFC with a

provision that she elevate her left leg, with occasional postural

restrictions, would be appropriate. R. 68. In another words, the

ME was not without some uncertainty and difficulty in reaching a

conclusion in the first place. The ALJ’s decision to probe

further, even after seeking the VE’s opinion based on the ME’s

opinion, is supported by the record.

 

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3

Nor is Kime correct in her assertion that there was no basis

to change the hypothetical to the VE and that the change was based

on the ME’s response of “I guess.” 

First, once the ME changed his opinion concerning Kime’s

limitations, the ALJ properly altered the hypothetical to include

them. See Bowling, 36 F.3d at 436 (holding that proper

hypothetical question to VE contains limitations found by ALJ). 

Second, a fair reading of the ME’s testimony demonstrates that

the ALJ did not reconstitute the hypothetical based only on the

ME’s response of “I guess.” Considered in its entire context, the

ME’s answer is part of several responses to questions in which the

ME expressed doubt about whether Kime has an MDI at all and opined

that she could in fact sit at a desk with both legs and feet down

all day, so long as she was able to move her leg and shift

positions. The ME testified that he was confused about her

symptomatology, but he accepted her assertion that when she sits or

stands she gets burning pain, and that elevating her leg tends to

prevent it. Despite this assumption, he was still unsure what is

her MDI. When asked by the ALJ whether, based on what Kime had

testified to and what the ME had seen in the record, he felt she

needed to have her left leg elevated during the daytime if working

a job, the ME reiterated that his answer depended on the question,

“What is the MDI?” R. 73. He then stated, “I mean, if we don’t

 

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have an MDI, we don’t have a limitation.” Id. When the ALJ then

asked, “So your answer is you don’t know,” and the ME responded, “I

guess,” R. 74, the ME was in effect stating that he guessed he did

not know whether she needed to elevate her left leg while at work.

He did not, however, retreat from his fundamental doubt whether she

had a recognized MDI. When in the very next question the ALJ

inquired whether the ME would have difficulty with Kime’s sitting

at a desk with both legs and feet down all day, the ME opined that

he would not, provided she was able to move her leg and shift

positions. See id. at 73-74. Considered in context, the ALJ could

reasonably have found that the ME was not merely guessing whether

Kime should be able to elevate her leg while at work, but was

expressing uncertainty about whether she even has an MDI that

necessitated that she elevate her left leg, and was opining that

she could sit at a desk with her legs and feet down all day,

provided she was able to move her leg and shift positions. 

4

Kime’s reliance on evidence that, at the last job she held,

she worked for four weeks with her legs down, moved around

occasionally, and still passed a blood clot, and her contention

that the second hypothetical posed to the VE goes against her

testimony and the substantial weight of the medical evidence, are

insufficient to warrant reversing the Commissioner’s decision. The

ALJ was entitled to credit other medical testimony, rather than

 

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Kime’s, that supported his conclusion that she can perform her past

relevant work. He was also entitled to credit the evidence that

supported his findings. The resolution of conflicting evidence is

for the Commissioner. See Patton, 697 F.2d at 592. And as the

Commissioner points out, this is not a case in which the ME’s

medical opinion conflicted with another medical opinion of record.

Cf., e.g., Myers v. Apfel, 238 F.3d 617, 621 (5th Cir. 2001) (per

curiam) (“This is a case where the ALJ summarily rejected the

opinions of [Myers’s] treating physician, based only on the

testimony of a non-specialty medical expert who had not examined

the claimant.” (quoting Newton v. Apfel, 209 F.3d 448, 458 (5th

Cir. 2000))).

5

Finally, Kime’s reliance on Dr. Mierzwiak’s October 13, 2000

letter is insufficient to warrant reversing the ALJ’s conclusions.

Kime cites the letter without taking into account other record

evidence from Dr. Mierzwiak’s records. In a November 6, 2000

letter to James B. Montgomery, M.D., Dr. Mierzwiak advised him that

a recent MRI revealed that the blood clot had resolved and that

knee surgery could proceed. The ALJ did not err in failing to give

the October 13, 2000 letter the weight Kime thinks it deserves.

6

Kime’s argument that the ME’s change of opinion is completely

contradictory and capricious fails for the reasons discussed supra

 

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at § III(B)(3). Considered in its totality, the ME’s testimony

reflects his consistent confusion about Kime’s symptomatology and

his uncertainty whether she even has an MDI and needs to elevate

her left leg while at work. Although the ME came to a different

conclusion on further questioning, his doubts about whether Kime

has physical limitations that preclude her performing her past

relevant work were manifest at the time he offered his first

opinion during the hearing.

* * *

Kime has failed to demonstrate that the Commissioner committed

reversible error in denying disability benefits in this case.

Accordingly, the Commissioner’s decision is AFFIRMED.

July 15, 2005.

_________________________________

SIDNEY A. FITZWATER

UNITED STATES DISTRICT JUDGE

 

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