IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

ABILENE DIVISION

§

BOBBIE J. IVEY, §

§

 Plaintiff, §

§

vs. § Civil Action No. 1:05-CV-0123-C

§ ECF

§ Referred to the U.S. Magistrate Judge

JO ANNE B. BARNHART, §

Commissioner of Social Security, §

§

 Defendant. §

REPORT AND RECOMMENDATION

THIS MATTER is before the court upon Plaintiff’s complaint filed June 30, 2005, for

judicial review of the administrative decision of the Commissioner of Social Security denying

Plaintiff’s applications for a period of disability and disability insurance benefits and for

supplemental security income benefits under Title II and Title XVI of the Social Security Act.

Plaintiff filed a brief in support of her complaint on October 31, 2005, and Defendant filed her brief

on November 29, 2005. The United States District Judge, pursuant to 28 U.S.C. § 636(b), referred

this matter to the United States Magistrate Judge for report and recommendation, proposed findings

of fact and conclusions of law, and a proposed judgment. This court, having considered the

pleadings, the briefs, and the administrative record, recommends that the United States District

Judge affirm the Commissioner’s decision and dismiss the complaint with prejudice.

I. STATEMENT OF THE CASE

Plaintiff filed applications for a period of disability and disability insurance benefits and for

supplemental security income benefits on April 4, 2001, with a protective filing date of February 21,

 

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2001, for her SSI application, alleging disability beginning January 12, 2001. Tr. 15, 61-63.

Plaintiff’s applications were denied initially and upon reconsideration. Tr. 25-31, 35-38, 292-98,

300-02. Plaintiff filed a Request for Hearing by Administrative Law Judge on January 11, 2002, and

this matter came for hearing before the Administrative Law Judge (“ALJ”) on September 24, 2003.

Tr. 15, 39, 303-40. Plaintiff, represented by an attorney, testified in her own behalf. Tr. 306-19,

331-33. Dr. George Weilepp, a medical expert (“ME”) and Carol Bennett, a vocational expert

(“VE”), appeared and testified as well. Tr. 15, 320-30, 334-39. The ALJ issued a decision

unfavorable to Plaintiff on October 30, 2003. Tr. 12-22. 

In his opinion the ALJ noted that the specific issue was whether Plaintiff was under a

disability within the meaning of the Social Security Act. He found that: Plaintiff met the disability

insured status requirements. Tr. 16, 21. Plaintiff had not engaged in substantial gainful activity at

any time since January 12, 2001. Id. Plaintiff has “severe” impairments, including pain in her back,

hip, and thighs. Id. Plaintiff’s severe impairments, singularly or in combination, were not severe

enough to meet or equal in severity any impairment listed in the Listing of Impairments, 20 C.F.R.

Part 404, Subpt. P, App. 1. Id. Therefore, the ALJ was required to determine whether Plaintiff

retained the residual functional capacity (“RFC”) to perform her past relevant work or other work

existing in the national economy.

The ALJ acknowledged that in making the RFC assessment, he must consider all symptoms,

including pain, and the extent to which these symptoms can be reasonably accepted as consistent

with the objective medical evidence and other evidence, based on the requirements of Social

Security Ruling 96-7p. Tr. 18. 

The ALJ discussed the testimony of the ME, noting his testimony that Plaintiff’s basic

problem is obesity, with orthopedic-related problems, including a pain problem, anemia, calcium

problems, parathyroid hyperactivity, non-diagnostic osteoporosis, and hypertension controlled by

 

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medications. Tr. 16. The ALJ discussed Dr. Weilepp’s testimony about the objective evidence in

the record, as well as his testimony about the limitations imposed by Plaintiff’s impairments,

including her narcotic level medication and any side effects therefrom. Tr. 17. The ALJ also noted

his questioning and Plaintiff’s testimony regarding her use of a cane, her lack of insurance, and her

lack of psychiatric or psychological care. Tr. 17-18. 

The ALJ indicated that he had considered the opinions of the state agency medical

consultants, who opined that Plaintiff’s impairments did not preclude work at the light exertional

level. Tr. 18. The ALJ noted that he had given great weight to the opinion of the ME. Id. 

The ALJ discussed Plaintiff’s testimony regarding the limitations imposed by her

impairments and as to her activities. Tr. 19. He noted that Plaintiff had alleged that she was unable

to perform any type of work activity. Id. He found that based on the evidence in the record,

Plaintiff’s statements concerning her impairments and their impact on her ability to work were not

entirely credible, insofar as she alleged that she was precluded for all levels of work activity. Tr.

19, 21. The ALJ also found that Plaintiff’s depression would not limit her from performing tasks

of one or two steps, specifically noting her failure to take reasonable efforts to pursue treatment for

her mental impairment. Tr. 19. 

The ALJ found that Plaintiff could not return to her past relevant work as a telephone

answering service operator. Tr. 15, 19, 22. He noted that Plaintiff was considered a “younger”

person with a high school education. Tr. 20, 22; see 20 C.F.R. §§ 416.963, 416.964. 

 The ALJ found that Plaintiff retained the RFC to perform work activity at the sedentary

level of exertion, limited to jobs that do not require more than occasional stooping, crouching,

crawling or kneeling; that do not require climbing or balancing; that do not require working at

unguarded heights or near unguarded hazardous mechanical equipment; that do not require sitting

for more than 30 minutes at one time without the opportunity to stand in addition to a lunch and the

 

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normal legal breaks during the work day; that do not require standing/walking for more than 1 hour

out of an 8-hour work day; that do not require Plaintiff to maintain fixed concentration and attention

for periods of longer than 20 minutes without the opportunity to briefly refocus for a minute or two

and come back to fixed concentration; and that do not require understanding, remembering, or

carrying out more than simple instructions while in the performance of job duties. Tr. 19, 22.

Having found that Plaintiff could not perform the full range of sedentary work, the ALJ turned to

the testimony of the VE in determining whether Plaintiff was capable of making a vocational

adjustment to other work despite her severe impairments. Tr. 20, 22. 

The ALJ relied upon the testimony of the VE who indicated that a hypothetical person of

Plaintiff’s age, with Plaintiff’s RFC and vocational history, could perform work which exists in the

national economy, including the jobs of assembler, with 4,400 jobs in Texas and 80,000 jobs

nationally; and inspector, with 1,500 jobs in Texas and 25,000 jobs nationally. Id. The ALJ,

therefore, concluded that Plaintiff was not disabled within the meaning of the Social Security Act

at any time through the date of his decision. Tr. 21-22. 

Plaintiff submitted a Request for Review of Hearing Decision/Order on November 3, 2003.

Tr. 9-11. After granting a 25-day extension to submit more evidence, the Appeals Council issued

its opinion on June 3, 2005, indicating that although it had considered the contentions raised in

Plaintiff’s Request for Review, it nevertheless concluded that there was no basis for changing the

ALJ’s decision and denied Plaintiff’s request. Tr. 4-8. The ALJ’s decision, therefore, became the

final decision of the Commissioner.

On June 30, 2005, Plaintiff commenced this action which seeks judicial review of the

Commissioner’s decision that Plaintiff was not disabled.

 

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II. STANDARD OF REVIEW

An individual may obtain a review of the final decision of the Commissioner by a United

States District Court. 42 U.S.C. § 405(g). The court’s review of a denial of disability benefits is

limited to determining whether the decision is supported by substantial evidence and whether the

Commissioner applied the proper legal standards. Waters v. Barnhart, 276 F.3d 716, 718 (5th Cir.

2002)(citing Estate of Morris v. Shalala, 207 F.3d 744, 745 (5th Cir. 2000)). Substantial evidence

“is more than a mere scintilla and less than a preponderance” and includes “such relevant evidence

as a reasonable mind might accept as adequate to support a conclusion.” Masterson v. Barnhart, 309

F.3d 267, 272 (5th Cir. 2002); Watson v. Barnhart, 288 F.3d 212, 215 (5th Cir. 2002). The court

will not re-weigh the evidence, try the questions de novo, or substitute its judgment for the

Commissioner's, even if the court believes that the evidence weighs against the Commissioner's

decision. Masterson, 309 F.3d at 272. “[C]onflicts in the evidence are for the Commissioner and not

the courts to resolve.” Id. (quoting Newton v. Apfel, 209 F.3d 448, 452 (5th Cir. 2000)).

 In order to qualify for disability insurance benefits or supplemental security income, a

claimant has the burden of proving that he or she has a medically determinable physical or mental

impairment lasting at least 12 months that prevents the claimant from engaging in substantial gainful

activity. Substantial gainful activity is defined as work activity involving significant physical or

mental abilities for pay or profit. Newton, 209 F.3d at 452; see 42 U.S.C. § 423(d)(1)(A); 20 C.F.R.

§ 404.1527(a)(1).

The Commissioner follows a five-step process for determining whether a claimant is disabled

within the meaning of the Social Security Act. 20 C.F.R. § 404.1520; Masterson, 309 F.3d at 271;

Newton, 209 F.3d at 453. In this case, the ALJ found at step 5 that Plaintiff was not disabled

because she retained the ability to perform work in the national economy. Tr. 20, 22.

 

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III. DISCUSSION

Plaintiff claims that the ALJ’s determination of Plaintiff’s RFC is not supported by

substantial evidence because the ALJ improperly rejected the opinion of the consultative examiner

as to the limitations imposed by Plaintiff’s impairments. She alleges that the ALJ erred in rejecting

in part Dr. Jerome M. Adams’ opinion that Plaintiff’s ability to handle objects would be “essentially

nil.” She notes that the jobs identified by the VE, as listed in the Dictionary of Occupational Titles,

require either constant or frequent fingering. 

The ultimate issue is whether the ALJ’s decision is supported by substantial evidence. The

court, therefore, must review the record to determine whether it “yields such evidence as would

allow a reasonable mind to accept the conclusion reached by the ALJ.” Loza v. Apfel, 219 F.3d 378,

393 (5th Cir. 2000).

Dr. Adams performed his consultative examination on August 24, 2001. Tr. 233-35. He

noted that Plaintiff had related the onset of her impairment to about 3 1/2 years ago. Tr. 233. He

noted Plaintiff’s report of a history of low back pain radiating down the right hip and thigh since

then. Id. He noted Plaintiff’s report of not being able to do her job because she had to stand a lot,

her report of being unable to drive because of right hip and back pain, and her inability to safely

handle the brake and accelerator pedals on the car. Id. He noted Plaintiff’s report of being able to

sit about 15-20 minutes and then standing or walking for about 15 minutes before needing to change

positions. Id. Upon physical examination, Dr. Adams noted that Plaintiff moved slowly and

cautiously and had difficulty with getting up onto the exam table. Id. Dr. Adams noted that

examination of Plaintiff’s upper extremities revealed that she was able to come to almost a full range

of motion of the shoulders in abduction and internal and external rotation. Tr. 234. He noted that

Plaintiff had “fairly good bilateral handgrip and fair strength at the elbows.” Id. He also noted no

joint deformities or muscle atrophy. Id.

 

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Dr. Adams noted that Plaintiff appeared to experience pain in changing positions. Id. He

noted that Plaintiff had a lot of pain with any movement of the right hip and also noted pain in the

left hip to a lesser degree. Id. He noted that Plaintiff walked with a stiff gait and used a cane in the

left hand. Id.

Dr. Adams noted Plaintiff’s report of being able to use clothes that are easily handled and

her ability to dress herself fairly well. Id. He opined that Plaintiff “would no way be able to

function in the work place in that her ability to sit and stand for any length of time is very limited.

Her ability to move about, handle objects, lift and carry objects would essentially be nil.” Tr. 235.

Plaintiff argues that the ALJ erred in rejecting Dr. Adams’ opinion insofar as he opined that

her ability to hand objects “would essentially be nil.” In his opinion the ALJ correctly noted that

the reports of Dr. Adams’ consultative examination revealed fairly good bilateral handgrip, fair

strength at the elbows, and no joint deformity or muscle atrophy of the upper extremities, and he

noted Plaintiff’s ability to grip and use a walking cane. Tr. 20-21, 233-34. Plaintiff argues that the

ALJ was not entitled to “pick and choose” among the evidence and erred by only accepting Dr.

Adams’ opinion in part. Plaintiff argues that the ALJ was not entitled to accept only some of the

restrictions noted by Dr. Adams in his opinion.

Plaintiff’s treating physician, Mark Workman, M.D., noted on December 4, 2000, that she

had intact strength and absent reflexes. Tr. 287. On February 7, 2001, Marlon L. Hermitanio, M.D.,

noted that upon examination, Plaintiff’s extremities showed no edema, cyanosis, or clubbing, with

palpable pedal pulses, and he noted deep tendon reflexes of 2+ on all four extremities. Tr. 283.

Plaintiff’s physical therapist noted on February 12, 2001, that Plaintiff was using a cane with her

right upper extremity to ambulate. Tr. 184. Dr. Workman noted on March 23, 2001, that Plaintiff’s

physical therapist had given her a walker. Tr. 279. Dr. Hermitanio again noted no edema, cyanosis,

or clubbing of the extremties on April 19, 2001. Tr. 221. Plaintiff’s physical therapist noted on

 

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April 25, 2001, that Plaintiff had reported that she was able to walk with a cane at home. Tr. 191.

Plaintiff was noted to be progressing overall, albeit slowly. Id. On May 1, 2001, Magdi M. Tadros,

M.D., another treating physician, noted that Plaintiff’s pulses were present in her extremities and

further noted no edema. Tr. 157. Dr. Tadros noted on May 29, 2001, that there were no

abnormalities with Plaintiff’s extremities. Tr. 155. Dr. Hermitanio noted on July 26, 2001, that

Plaintiff continued to have difficulty standing up from a sitting position or getting out of bed and

was using a cane to ambulate. Tr. 218. Cindy Harris, M.D., who examined Plaintiff on April 17,

2003, noted upon physical examination that Plaintiff has normal peripheral reflexes in the

extremities. Tr. 254. 

Plaintiff testified that: She can cook simple things. Tr. 310. She tries to do her own laundry

and tries to help with the dusting and the picking up. Tr. 311. Pain is in her lower back and hips.

Tr. 314. She uses a walker if she knows she going to be out for longer periods. Id. She began using

a cane in 1999. Tr. 319. 

Ultimately, it is the ALJ’s responsibility to determine a claimant’s RFC, and such an

assessment is not a medical opinion. See 20 C.F.R. §§ 416.946, 416.927(e). The ALJ is not required

to incorporate any specific limitations into his RFC assessment simply because it appears in a

medical opinion. Rather, the ALJ has the sole responsibility for weighing the evidence, may choose

whichever physician’s diagnosis is most supported by the record, and may incorporate into the RFC

assessment the limitations supported by that diagnosis or diagnoses. Muse v. Sullivan, 925 F.2d 785,

790 (5th Cir. 1991)(citing Bradley v. Bowen, 809 F.2d 1054, 1057 (5th Cir. 1987)). “The task of

weighing the evidence is the province of the ALJ. Chambliss v. Massanari, 269 F.3d 520, 523 (5th

Cir. 2001). The relative weight to be given these pieces of evidence is within the ALJ's discretion.

Id. Clearly, “the ALJ cannot reject a medical opinion without an explanation.” Loza, 219 F.3d at

395. Moreover, in weighing the evidence, the ALJ is not free to reject the uncontroverted opinions

 

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of a treating physician as to the limitations imposed by Plaintiff’s impairments, solely because he

has a “different interpretation of the evidence.” See Frank v. Barnhart, 326 F.3d 618, 622 (5th Cir.

2003)(where the Fifth Circuit noted in dicta that the ALJ should not substitute his own medical

conclusions about the effects of the claimant’s impairments). 

In his opinion the ALJ specifically discussed his reasons for rejecting Dr. Adams’ opinion

that Plaintiff’s ability to handle objects would be “essentially nil.” Tr. 20-21. The ALJ correctly

noted that Dr. Adams’ opinion was not supported by his own records and notes of the consultative

examination. Id. Indeed, the record contains no evidence indicating that Plaintiff’s ability to handle

objects was extremely limited. The record demonstrates that she used a cane, and at times a walker,

to ambulate. Strength in the upper extremities was noted to be good. No cyanosis, clubbing, edema,

muscle atrophy, or deformities were noted. Plaintiff testified that she did some cooking, dusting,

laundry, and for the most part dressed herself and performed her own personal hygiene tasks. The

record is devoid of evidence demonstrating that Plaintiff was unable to handle objects.

Here, the ALJ adequately explained his reason for rejecting Dr. Adams’ opinion that

Plaintiff’s was unable to handle objects and demonstrated good cause for doing so. In Newton, the

Fifth Circuit confirmed that “‘the ALJ is free to reject the opinion of any physician when the

evidence supports a contrary conclusion.’” Newton, 209 F.3d at, 455 (citing Paul v. Shalala, 29 F.3d

208, 211 (5th Cir. 1994)). The record demonstrates that the ALJ did not “pick and choose” only the

evidence that supported his position. See Loza, 219 F.3d at 393 (internal citations omitted). Rather,

the ALJ appropriately considered the record as a whole. Id.

I find that the ALJ did not err by rejecting Dr. Adams’ opinion that Plaintiff’s ability to

handle objects would be “essential nil,” and his opinion is supported by substantial evidence in the

record.

 

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IV. CONCLUSION

Based upon the foregoing discussion of the issues, the evidence, and the law, this court

recommends that the United States District Judge affirm the Commissioner’s decision and dismiss

the Plaintiff’s complaint with prejudice.

The United States District Clerk shall serve a true copy of these findings, conclusions, and

recommendation on the parties. Pursuant to Title 28, United States Code, Section 636(b)(1) and

Rule 4 of Miscellaneous Order No. 6, For the Northern District of Texas, any party who desires to

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

within 11 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, 106 S.

Ct. 466, 472 (1985). Additionally, any failure to file written objections to the proposed findings,

conclusions, and recommendation within 11 days after being served with a copy shall bar the

aggrieved party from appealing the factual findings and legal conclusions of the United States

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

Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc).

DATED this 1st day of September, 2006.

_____________________________________

PHILIP R. LANE

UNITED STATES MAGISTRATE JUDGE

 

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