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 is substituted as the defendant in this suit.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

CLARENCE A. OWENS, JR., §

§

Plaintiff, §

§

v. § 2:05-CV-0095

§

MICHAEL J. ASTRUE, §

Commissioner of Social Security, §

§

Defendant.1 §

REPORT AND RECOMMENDATION

TO AFFIRM THE DECISION OF THE COMMISSIONER

Plaintiff CLARENCE A. OWENS, JR. 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 AFFIRMED.

I.

THE RECORD

Plaintiff protectively filed for supplemental security income benefits under Title XVI of

the Social Security Act on March 13, 2002. (Transcript [hereinafter Tr.] 49, 63). Plaintiff alleges

an onset date of December 1, 2001. (Tr. 49). Plaintiff’s impairments include peroneal spastic flat

foot with chronic foot and ankle pain and obesity. (Tr. 16). It was determined at the

 

 

FILED

MARCH 11, 2008

 

 

 

 

 

 KAREN S. MITCHELL

CLERK, U.S. DISTRICT COURT 
 2

Apparently plaintiff attempted to build fences for a relative on a farm but said he was unable to work more than a few days

due to swollen ankles. (Tr. 55).

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

onset date. (Id.). Plaintiff was born December 28, 1981, (Tr. 49), and obtained his General

Education Degree (GED). (Tr. 15, 60). According to plaintiff’s Adult Disability Report, and as

found by the Administrative Law Judge (ALJ), plaintiff has no past relevant work. (Tr. 20, 55).2

The Social Security Administration denied benefits initially and upon reconsideration. An

administrative hearing was held before ALJ Gerald R. Cole on April 22, 2003. (Tr. 215-232). On

October 1, 2003, the ALJ rendered an unfavorable decision, finding plaintiff not disabled and not

entitled to benefits at any time relevant to the decision. (Tr. 21-22). The ALJ concluded plaintiff

retained the residual functional capacity (RFC) to lift and carry up to 20 pounds occasionally and

10 pounds frequently, and to stand no more than 2 hours in an 8 hour day with no prolonged

walking or standing. (Tr. 21, Finding No. 6). The ALJ determined plaintiff could perform a

significant range of sedentary work with this RFC. With vocational expert testimony, the ALJ

found plaintiff could perform work existing in significant numbers in the regional and national

economies, (Tr. 22, Findings No. 10 and 11), and concluded plaintiff was not under a disability at

any time through the date of his decision.

The Appeals Council denied plaintiff’s request for review on January 20, 2005, and the

ALJ’s determination of not disabled became the final decision of the Commissioner. (Tr. 5-8). 

Plaintiff now seeks judicial review of the denial of benefits pursuant to 42 U.S.C. § 405(g). 

II.

STANDARD OF REVIEW

In reviewing disability determinations by the Commissioner, this Court’s role is limited to
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determining whether substantial evidence exists in the record, considered as a whole, to support

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 162,

164 (5th Cir. 1983). 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 found plaintiff 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 regional and national economies, and whether proper legal
SS\R&R\OWENS-JR.AFF-STEP5:3 4

standards were applied in making this determination. Plaintiff presents the following issues:

1. The ALJ failed to develop the record;

2. The ALJ erred at Step 5 when he concluded that plaintiff could perform sedentary

work. The ALJ erred in assessing the weight to be accorded the medical evidence

and erred in adopting vocational expert testimony that was inconsistent with

plaintiff’s skill level and the Dictionary of Occupational Titles (DOT);

3. The ALJ’s credibility analysis is contrary to the evidence and the law; and

4. The transcript is inaudible, preventing adequate judicial review.

IV.

MERITS

A.

Failure to Develop the Record

Plaintiff contends the ALJ failed to develop the record in two ways. Plaintiff alleges the

ALJ was obligated to obtain an RFC assessment from the consultive physician who examined

plaintiff at the request of the Texas Rehabilitation Commission, Dr. Raj Saralaya. Plaintiff also

alleges the ALJ failed to order a foot evaluation by a podiatrist.

Plaintiff cites 20 C.F.R. § 416.919p, which states, “If the report is inadequate or

incomplete, we will contact the medical source who performed the consultive examination, give

an explanation of our evidentiary needs, and ask that the medical source furnish the missing

information or prepare a revised report.” (Plaintiff’s Brief at 7).

The medical evidence reflects plaintiff was seen by a consultive physician, Dr. Saralaya,

on July 22, 2002. In his report Dr. Saralaya stated, “The patient definitely needs a workup by a

podiatrist and old records from the Scottish Rite Hospital in Dallas should be obtained for further

evaluation to see whether a treatable cause has been missed.” (Tr. 101). Plaintiff claims the

ALJ’s failure to order an exam by a podiatrist or other specialist constituted a failure to fully
SS\R&R\OWENS-JR.AFF-STEP5:3 5

develop the record and was error. Plaintiff argues he was prejudiced by this error because a

specialist could have shed light on “the causes of, and restrictions resulting from, his foot and

ankle problems.” (Plaintiff’s Brief at 8). 

Plaintiff does not raise this claim for the first time on appeal. Plaintiff advanced these

same objections to the ALJ, and consequently, he advances the claims here only after full

development at the agency administrative level. The ALJ, however, adjudicated plaintiff’s

objections and addressed themin his opinion as follows:

More importantly, the Administrative Law Judge finds that the report of the [sic]

Dr. Saralaya is adequate and sufficient within the criteria enumerated under 20

CFR 416.919p; that obtaining an RFCA report from Dr. Saralaya is not necessary

to make his report adequate or the record complete; that a CE performed by a foot

specialist is not necessary to make the record complete; and, that the RFCA

assessment made by the State agency physician has appropriately been made part

of the record.

. . . .

Thus, Dr. Saralaya’s basis for obtaining these records [exam by podiatrist and

Scottish Rite Hospital records] was for treatment rather than evaluation purposes. 

He provided a finding that he believed the claimant did have chronic foot and

ankle pain and a medical basis for such pain. Interestingly, his assessment is

similar to that of Dr. Templar who saw the claimant at the Childress Clinic in

November 1996 (Exhibit 6F, p. 8).

(Tr. 15). Defendant responds to plaintiff’s claim arguing the decision to order further tests is

discretionary to the ALJ as evidenced by the language of 20 C.F.R. § 416.919a(b),which states

further tests “may be ordered when the evidence as a whole, both medical and nonmedical, is not

sufficient to support a decision on [a] claim.” (Defendant’s Brief at 3, emphasis added). In this

case, Dr. Saralaya assessed plaintiff’s functional abilities as follows:

Higher functions were normal. Speech and hearing was normal. Cranial nerves

were normal. Motor system examination revealed the patient’s power was 4+/5

grossly in all four extremities with no focal weakness. The muscle tone was

normal and there was no wasting of any muscle groups. The patient had power in

his ankles a shade weaker than the rest of the body but it was still 4+/5. 

Coordination was normal. Patient had a good hand grip. Sensations were normal
SS\R&R\OWENS-JR.AFF-STEP5:3 6

to soft touch and pinprick. Proprioception was normal. DTR were 2+. Plantars

were downgoing. Gait was examined and was slow. It was wide based but there

was no overt limp or circumduction. Very little ankle movement was observed on

ambulation. The patient was keeping his ankles stiff. The arches of his feet

became diminished further when he was standing. Romberg’s was negative. 

Tandem walking was normal. Patient was not able to stand on his heels. He was

able to stand on his toes with effort. He was not able to lift his ankles up all of the

way as normally can be done. He was able to lift his ankles approximately

1centimeter above the ground. Squatting was normal.

. . . .

Range of motion was tested and was normal in the cervical spine and upper

extremities. ROM in the hips and knees was normal. In the ankles, dorsiflexion

was 30 degrees and plantarflexion was 30 degrees. Inversion and eversion was not

possible. Passive ROM was within normal in the ankle area. ROM in the toes was

within normal. Examination of the thoracolumbar spine revealed that from the

waist up, patient was able to bend down to an angle of 90 degrees. Extension was

20 degrees, lateral bending was 40 degrees, and lateral rotation was 90 degrees.

Impression - 1. Chronic foot and ankle pain possibly related to muscle spasm and

loss of arch of his feet with obesity compounding his other problems. The patient

definitely needs a workup by a podiatrist and old records from the Scottish Rite

Hospital in Dallas should be obtained for further evaluation to see whether a

treatable cause has been missed. 2. Obesity, for which patient should be on a 

weight reducing diet with more exercise.

(Tr. 101). Dr. Saralaya’s report fully assesses plaintiff’s limitations and the fact that Dr. Saralaya

did not make an RFC determination is not reversible. As argued by defendant, a state agency

medical consultant did complete an RFC assessment on August 19, 2002, not quite a month after

Dr. Saralaya’s report. In this RFC, the medical consultant concluded plaintiff could occasionally

lift and/or carry 50 pounds, could frequently lift and/or carry 25 pounds, could stand and/or walk

(with normal breaks) a total of at least 2 hours in an 8-hour workday, could sit (with normal

breaks) a total of about 6 hours in an 8-hour workday, and found plaintiff’s ability to push and/or

pull (hand and/or foot controls) was unlimited, other than as shown for lift and/or carry. (Tr.

107). The medical consultant determined plaintiff had no postural limitations, (Tr. 108), had no
 3

The undersigned notes he has used words instead of the abbreviations used in the RFC summation paragraph for example, a

circle with a line in it is “negative” and hx is “history.”

SS\R&R\OWENS-JR.AFF-STEP5:3 7

manipulative or visual limitations, (Tr. 109), and had no communicative or environmental

limitations, (Tr. 110). In this RFC assessment the medical consultant stated,

20 year old male with history of foot and ankle pain. Apparently claimant has had

problem with his foot and ankle since the age [of] 13. He is unable to walk long

distance. He has some stiffness and swelling of the ankles. Physical exam was

obtained by CE (emphasis added). Claimant has a wide-based gait and slow but

no limping or circumduction. Negative Romberg’s. Normal tandem gait. Some

reduction of ROM [range of motion] of ankles. X-ray of ankles are negative. 

Limitations not wholly supported by MER [medical evidence of record] and other

evidence.

(Tr. 111).3

 This RFC cited and considered Dr. Saralaya’s report and findings. While it may have

been desirable to have also had an RFC from Dr. Saralaya, it was not imperative, and the ALJ did

not commit reversible error by failing to request such. Consequently, the ALJ did not err in

failing to fully develop the record. He considered the medical evidence before him. He

considered plaintiff’s objections and explained his determination that the record was complete. 

(Tr. 15).

Plaintiff also contends the ALJ erred and failed to fully develop the record because he did

not order an exam by a podiatrist or other specialist. Plaintiff cites Dr. Saralaya’s statement that

“[t]he patient definitely needs a workup by a podiatrist and old records from the Scottish Rite

Hospital in Dallas should be obtained for further evaluation to see whether a treatable cause has

been missed.” (Tr. 101). The ALJ addressed this issue, holding that an examination by a foot

specialist was not necessary because Dr. Saralaya’s basis for such was for treatment purposes

rather than for evaluation purposes. If the ALJ was correct and Dr. Saralaya’s recommendation

was merely for the purposes of treatment with a view towards improving plaintiff’s condition, i.e.,
SS\R&R\OWENS-JR.AFF-STEP5:3 8

to see whether a treatable cause had been missed, then plaintiff cannot show harm. If, on the

other hand, Dr. Saralaya’s statement was that an examination by a specialist was necessary

because Dr. Saralaya was not able to fully evaluate plaintiff’s condition, then plaintiff’s point is

valid. Upon review of Dr. Saralaya’s report, it is the opinion of the undersigned that the ALJ’s

evaluation of that report was correct. Dr. Saralaya’ recommendation for a specialist and to obtain

old medical records was for the purpose of treatment in trying to determine whether some

treatable cause might be present rather than for purposes of supplementing Dr. Saralaya’s

functional examination.

For the reasons set forth above, plaintiff’s first claim does not present a basis upon which

this Court can find reversible error and plaintiff is not entitled to relief.

B.

Error at Step 5

Plaintiff next argues the ALJ committed an error of law at Step 5 in assessing the weight

to be accorded the medical evidence of plaintiff’s treating physicians and in adopting vocational

expert (VE) testimony which plaintiff alleges was inconsistent with plaintiff’s skill level and the

Dictionary of Occupational Titles (DOT). Plaintiff alleges the medical record contains

uncontradicted opinions by doctors that plaintiff’s foot and ankle problems affect his ability to

walk and stand. (Plaintiff’s Brief at 13). He further argues the ALJ failed to ascertain whether

Dr. Kaleem Ahmad was a treating physician, and he failed to properly consider his opinion

pursuant to Newton v. Apfel, 209 F.3d 448, 455-56 (5th Cir. 2000), even though his opinion was

conclusory. (Plaintiff’s Brief at 13). Newton clarified Social Security Regulations by requiring

an ALJ to consider a list of factors when determining that a treating physician’s opinion is not

entitled to controlling weight. Newton, 209 F.3d at 456. The factors to be considered are:
 4

The ALJ opinion cites Dr. Ahmad’s note as saying “unable to walk,” but the note actually looks like “unable to work,”

especially in light of the following phrase “even part-time.” (Tr. 19). This distinction does not change the Court’s analysis

however, because later in the same paragraph the ALJ stated, “While [Dr. Ahmad] indicated that the claimant was unable to

work due to obesity and arthritis. . . ,” thus, the prior use of the word “walk” could have been a typographical error. In any

event, the ALJ treated the opinion of the physician as concluding plaintiff could not work. 

SS\R&R\OWENS-JR.AFF-STEP5:3 9

1) the length of treatment;

2) the frequency of examinations;

3) the nature and extent of the relationship;

4) the support provided by other evidence;

5) the consistency of the opinion with the record; and

6) the doctor’s specialization.

Id.

Dr. Ahmad’s evaluation is found on a prescription pad note, dated November 12, 2001,

and stating, “To Whom It May Concern, This is to state that Antonio Owens was evaluated by me

for obesity & arthritis is unable to work, even part time [because] of above noticed problems.” 

(Tr. 99). Addressing this note the ALJ stated, “In assessing the claimant’s residual functional

capacity, consideration has been given to the opinion of Dr. Ahmad that due to obesity and

arthritis the claimant is unable to walk or perform even part-time work activity. It is difficult to

determine whether Dr. Ahmad is a treating physician. Further, his report is not supported by

treating notations and is brief and conclusory.” (Tr. 19).4

 Dr. Ahmad is affiliated with the

Collingsworth Family Clinic, as noted on his prescription pad, (Tr. 99), and while there was an

attempt on June 3, 2002, to obtain records from this clinic for the dates January 1, 2001, to

present, such request was returned with a notation, “There are not any records for the dates

requested.” (Tr. 105). Consequently, no records from Collingsworth Family Clinic were

received nor were they reviewed by the ALJ. Records were, however, received by the Appeals

Council. (Tr. 4, records labeled as AC-2, Tr.130-166). Review of these records, which date from

August 22, 1992, through August 8, 2000, reflect diagnoses of morbid obesity, lower extremity
SS\R&R\OWENS-JR.AFF-STEP5:3 10

pain and/or flat feet. (Tr. 132, 133, 134, 135, 141, 144, 145, 147). Plaintiff identifies pages 132,

133, and 134 as supporting Dr. Ahmad’s conclusions. On page 133, dated August 27, 1999, Dr.

Ahmad noted, “I explained to mom there is no reason he couldn’t be going to school. He need[s]

to have more adequate pain control. If I need to put him on diet pills to reduce his weight, it

would be appropriate.” (Tr. 133). At page 134, Dr. Ahmad further reported, in a January 22,

1999 record, that in his examination of plaintiff, except for morbid obesity, he was found to be

within normal limits. (Tr. 134). Notes from this clinic also show that at some date in 1998 (the

month failed to copy), the clinic was attempting to treat plaintiff’s obesity by recommending a

reduced calorie diet with regular daily exercise, and it was recommended plaintiff could use a

stationary bicycle due to foot problems. (Tr. 161). In the same report it, was noted, “ very little

walking due to problems with his feet, but does play basketball.” (Id.). These are the only

records from Collingsworth Family Clinic and/or Dr. Ahmad. These records, which date up to

August 8, 2000, do not appear consistent with Dr. Ahmad’s note written on November 12, 2001,

of a total inability to work, even part-time. (Tr. 99). The ALJ determined Dr. Ahmad’s

November 12, 2001 note was conclusory, and if the ALJ had received Dr. Ahmad’s records, it

does not appear the ALJ would have reached a different conclusion regarding the note because

the clinic treatment notes do not support the November 12, 2001 determination. Therefore, even

if Dr. Ahmad is classified as a treating physician, and even if, arguendo, it was error to fail to

obtain plaintiff’s records, such error was corrected by the Appeals Council, who received and

considered the Collingsworth Clinic records and declined to remand the case. These additional

records do not support a finding of disabled. 

Plaintiff next argues the ALJ failed to accord considerable weight to the opinions,

diagnoses and medical evidence of treating physicians. Records from the Scottish Rite Hospital
SS\R&R\OWENS-JR.AFF-STEP5:3 11

in Dallas show plaintiff was treated there on July 16, 1998, (Tr. 174, 183-184, 191), and

September 24, 1998, (Tr. 185). Those records also indicate plaintiff was seen on September 24,

1998, for the initiation of orthotic treatment (shoe inserts), (Tr. 202), and on November 5, 1998,

for the fitting of the orthoses. (Tr. 200). The remainder of the records are labeled “Outpatient

Message Report,” and appear to be records of phone conversations primarily with plaintiff’s

mother about his condition. (Tr. 186-190). On March 5, 1999, there is a “Social Work Progress

Note,” indicating plaintiff’s feet hurt too much to travel to Dallas and requesting referral to a

physician in Childress, Texas. (Tr. 196). Plaintiff was advised to contact a Dr. Moore of St.

Anthony’s Hospital in Amarillo, Texas to schedule an appointment. (Id.). It is not clear whether

plaintiff or his mother followed this advice. There are no records from that hospital. 

Finally, the records reflect plaintiff was treated by the Family Clinic in Childress, Texas. 

These records consist primarily of phone messages complaining of pain and/or requesting refills

for naproxin or ibuprophen. (Tr. 119-124). On November 14, 1996 there is a notation in the

record documenting plaintiff’s complaints of continued ankle pain. The notation also states, “He

is quite heavy, states it is worse if he is up on his feet, doesn’t bother him if he is not on them.” 

(Tr. 125). On November 26, 1996, plaintiff was examined by Dr. Lowell Templar at the

Childress Clinic who noted the following,

He has in his left foot on clinical examination, almost complete rigidity of his hind

foot. He has no pliability whatsoever and clinically would appear like he has a

vertical talus. Neurovascular functions are intact. His x-rays do not show any

arthritic involvement, they do not show a vertical talus, they do show overall

appropriate alignment of his foot. So, it is my impression, that he has what we call

a peroneal spastic flat foot, that is where the perineum muscle stay in constant

spasm and keep the foot everted even in a walking position. However, in

observing this young man walking, he actually walks with his feet fairly straight.

(Tr. 125). The doctor suggests weight loss as the number one goal for plaintiff and discusses the
SS\R&R\OWENS-JR.AFF-STEP5:3 12

possibility of obtaining shoe inlays or orthopedic shoes, although he expressed skepticism that

plaintiff will wear the latter due to appearance. (Id.). The doctor also stated,

they have been sending him home because he complains with his feet and I sent a

note along with him he is not to miss school with complaints with his feet, he can

stay in school. He will have to get himself educated in some form or fashion to

either vocationally or scholastically earn a living. It is a relatively sessile

situation, he will never be able to walk or stand for long distances or stand for a

long periods of time on his feet, they will never be that good.

(Id.). It was this report the ALJ compared to that of Dr. Saralaya’s July 22, 2002 examination

(Tr. 100-101) stating, “Interestingly, his assessment is similar to that of Dr. Templar who saw the

claimant at the Childress Clinic in November of 1996.” (Tr. 15). Taking all the medical evidence

into consideration as discussed above, the Court is of the opinion the ALJ fulfilled his duty to

consider and weigh all the medical evidence of plaintiff’s treating physicians. Except for the note

from Dr. Ahmad in November 2001, which the ALJ found to be conclusory, the medical records

appear to be consistent. 

To the extent plaintiff argues the medical evidence does not support the ALJ’s RFC

finding, such claim does not entitle plaintiff to relief. The ALJ determined plaintiff had the

ability to “lift and carry up to 20 pounds occasionally and 10 pounds frequently; and, stand no

more than 2 hours in an 8 hour work day with no prolonged walking or standing.” (Tr. 19). The

ALJ then determined plaintiff was capable of performing a significant range of sedentary work as

defined in 20 C.F.R. § 416.967(a) which states, 

Sedentary work. Sedentary work involves lifting no more than 10 pounds at a time

and occasionally lifting or carrying articles like docket files, ledgers, and small

tools. Although a sedentary job is defined as one which involves sitting, a certain

amount of walking and standing is often necessary in carrying out job duties. Jobs

are sedentary if walking and standing are required occasionally and other

sedentary criteria are met.

(Tr. 20). Plaintiff argues this was error because no evidence in the record positively stated
SS\R&R\OWENS-JR.AFF-STEP5:3 13

plaintiff had such abilities. (Plaintiff’s Brief at 14). Plaintiff further argues the ALJ should have

adopted the RFC hypothetical with only one hour of standing with no prolonged walking versus

the two hour capability he adopted. Response by the VE to the one-hour standing hypothetical

resulted in a significant erosion of jobs and, in fact, the VE stated he felt no work would be

available. (Tr. 229). Whether plaintiff is capable of standing one hour a day versus two hours a

day is a finding that is not subject to exact determination; the determination is for the ALJ to

make, and it will stand so long as it is supported by substantial evidence. In this case, not only

did a state agency medical consultant conclude plaintiff was capable of this RFC level, (Tr. 107),

the medical consultant also determined plaintiff had no postural limitations, (Tr. 108), had no

manipulative or visual limitations, (Tr. 109), and had no communicative or environmental

limitations, (Tr. 110). This RFC was based, in part, on the 2002 examination of Dr. Saralaya,

which the ALJ found to be consistent with the 1996 records from plaintiff’s treating physician,

Dr. Templar. (Tr. 15). While the medical evidence might haven been construed by the ALJ as

warranting a finding of disabled, the fact that the ALJ might have decided the case either way

does not mean the ALJ committed reversible error in finding plaintiff not disabled. Substantial

evidence exists to support the ALJ’s RFC determination.

Finally, under this second point of error plaintiff argues the ALJ erred in adopting VE

testimony that was inconsistent with plaintiff’s skill level and the DOT. To the extent plaintiff

argues the VE’s testimony was in response to a defective hypothetical, such claim is without

merit for the reasons set forth above. Plaintiff then argues the VE’s testimony conflicted with the

DOT, and the ALJ erred in failing to address these inconsistencies. (Plaintiff’s Brief at 9). The

VE testified plaintiff could perform three jobs: surveillance systems monitor, which he classified

as sedentary/unskilled; taxi cab starter, which he classified as sedentary/unskilled; and
SS\R&R\OWENS-JR.AFF-STEP5:3 14

companion, which he classified as sedentary/semi-skilled. (Tr. 229). The ALJ adopted these

findings. (Tr. 21). Plaintiff submits the DOT classifies the job of companion as light/semiskilled, and the job of taxi cab starter as sedentary but semi-skilled. (Plaintiff’s Brief at 11,

Exhibits A - C). Plaintiff argues because he has no past relevant work, he has no transferable

skills and it was error to find he could perform the jobs of companion or taxi cab starter. 

Defendant counters, stating the DOT “lists maximum requirements of occupations as generally

performed, not the range of requirements of a particular job as it is performed in specific

settings.” (Defendant’s Brief at 6) (citing SSR 00-4p at *3). A VE “may be able to provide more

specific information about jobs or occupations than the DOT.” Id. The DOT itself cautions that

its descriptions may not coincide in every respect with the content of jobs as performed in

particular establishments or at certain localities, DOT, Vol. 1, p. xiii, and states that not all of the

jobs in every category have requirements identical to or as rigorous as those listed in the DOT. 

(Id.) (citing Hall v. Chater, 109 F.3d 1255, 1259 (8th Cir. 1996)). The Fifth Circuit has clarified

that while the DOT “simply gives a general description of the [job] duties involved,” a VE “is

familiar with the specific requirements of a particular occupation, including working conditions

and the attributes and skills needed,” and is “able to compare all the unique requirements of a

specified job with the particular ailments a [plaintiff] suffers in order to reach a reasoned

conclusion whether the [plaintiff] can perform the specific job.” (Id.) (quoting Fields v. Bowen,

805 F.2d 1168, 1170-71 (5th Cir. 1986). In Carey v. Apfel, 230 F.3d 131 (5th Cir. 2000), the Fifth

Circuit addressed the issue of conflicts between VE testimony and the DOT and held,

[A]ll kinds of implicit conflicts are possible and the categorical requirements listed

in the DOT do not and cannot satisfactorily answer every such situation.

Moreover, claimants should not be permitted to scan the record for implied or

unexplained conflicts between the specific testimony of an expert witness and the

voluminous provisions of the DOT, and then present that conflict as reversible
SS\R&R\OWENS-JR.AFF-STEP5:3 15

error, when the conflict was not deemed sufficient to merit adversarial

development in the administrative hearing. Adopting a middle ground approach, in

which neither the DOT nor the vocational expert testimony is per se controlling,

permits a more straightforward approach to the pertinent issue, which is whether

there is substantial evidence supporting the Commissioner's determination that this

particular person can do this particular job or group of jobs.

Carey, 230 F.3d at 146-47. In the instant case, the VE testified the jobs of surveillance systems

monitor and taxi cab starter were sedentary and unskilled and the job of companion was sedentary

and semi-skilled. While plaintiff contends the DOT categorizes the taxi cab starter job as semiskilled and the job companion as light and semi-skilled, such DOT job descriptions contain

maximum qualifications. Further, even if the jobs of companion and taxi cab starter might be

eroded to some degree, the sedentary/unskilled job of surveillance system monitor remains

unaffected. 

Plaintiff challenges the VE’s testimony about the job of surveillance system monitor,

citing Stevenson v. Apfel, 170 F.Supp.2d 713, 717 (W.D. Tex. 2000), for the proposition that such

job is limited to transportation terminals, and the VE erred in failing to identify the number of

jobs in transportation terminals. Defendant responds that the VE testimony regarding police

impound facilities is consistent with the DOT. (Defendant’s Brief at 8) (citing (Tr. 230)). 

Plaintiff also categorizes the VE testimony regarding the number of surveillance system jobs as

inherently unreliable because the number presented was four times higher than a figure cited in

1995 caselaw. The Fifth Circuit, however, has stressed the value of VE testimony and has held,

“[t]he value of a vocational expert is that he is familiar with the specific requirements of a

particular occupation, including working conditions and the attributes and skills needed.” 

(Defendant’s Brief at 6) (citing Fields v. Bowen, 805 F.2d 1168, 1170 (5th Cir. 1986)). Plaintiff

challenges the VE’s veracity based upon the VE’s alleged inability to articulate for the ALJ the

proper description and/or duties of a surveillance systems monitor and his calculation of the
 5

If in fact the adverse credibility finding rested only on plaintiff’s failure to seek medical care after turning 18, and if in fact

plaintiff’s failure was due to lack of financial resources, then the credibility finding would be highly suspect. As set forth above,

however, that was not the sole basis of the ALJ’s credibility finding.

SS\R&R\OWENS-JR.AFF-STEP5:3 16

number of such jobs in Texas. These allegations do not rise to the level necessary to undermine

the VE opinion. Lastly, plaintiff argues the ALJ erred because he failed to consider the distance

plaintiff is capable of traveling to jobs, pursuant to Mericle v. Secretary of Health & Human

Services, 892 F.Supp. 843, 847 (E.D. Tex. 1995). Defendant responds that this argument does not

have merit because plaintiff’s treating physician, Dr. Ahmad, told plaintiff there was no reason he

could not attend school. (Defendant’s Brief at 8). There is nothing in the record, however, to

indicate the distance to plaintiff’s school. Further, plaintiff has put forth nothing to show the ALJ

failed to consider the distance plaintiff was capable of traveling. While the ALJ did not make a

specific finding regarding distance, it cannot be said he failed to consider it. He heard testimony

from a VE who heard and read the evidence of record as well as considering a hypothetical. This

VE ultimately gave an opinion of jobs based upon all this evidence, including plaintiff’s

testimony regarding school attendance and travel. Such evidence was adequately considered by

the ALJ.

C.

The ALJ’s Credibility Analysis

In his third point of error plaintiff complains the ALJ’s credibility analysis was contrary to

the evidence and the law. Specifically, plaintiff argues the ALJ failed to articulate specific,

plausible reasons for rejecting plaintiff’s complaints of pain. Plaintiff notes the ALJ did,

however, recite medical evidence in the record he considered contradictory to plaintiff’s

complaints. (Tr. 17-19, 21). While it is true the ALJ noted plaintiff had limitations in his ability

to seek medical care, it does not appear the ALJ considered this fact determinative in assessing

credibility.5

 In fact, the ALJ stated, 
SS\R&R\OWENS-JR.AFF-STEP5:3 17

While the claimant does have limitations on his ability to seek medical care, the

total absence of any medical records concerning the claimant’s condition during

the last three or four years and the benign nature of previous medical reports fail to

document that his overall condition prevents him from performing total walking

and standing of up to two hours during an eight hour day.

(Tr. 19). The ALJ is correct in holding that the medical records over the five year period until

plaintiff turned 18 do not support limitations to the degree claimed by plaintiff. While these

records include a history of complaints of pain, the ALJ was entitled to discount such complaints

as inconsistent with the objective medical findings. This claim does not entitle plaintiff to relief.

D.

The Hearing Record

Lastly, plaintiff argues the case should be remanded due to the poor quality of the

transcription of the administrative hearing, submitting it prevents judicial review. While the

transcription is far from ideal, it is not so inadequate as to prevent judicial review. It is clear

plaintiff socializes with his family and lifts weights. (Tr. 220). He testified that both his ankles

are bad and that doctors have told him to lose weight. (Tr. 222-23). It was established that up

until he was 18, plaintiff was on Medicaid, but once he turned 18, plaintiff was dropped from

Medicaid and could not afford to pay for healthcare. (Tr. 224). He testified he had been given

some pads (inserts) for his feet, but they weren’t sturdy enough, (Tr. 224) and that one doctor in

Dallas suggested a shoe and a brace. (Tr. 224-25). He testified his feet get stiff, that his Mother

has to massage him four nights a week, that he has swelling and pain in these areas, and that

while it always hurts, he has good days and bad days. (Tr. 225). The bad days he says occur

about four days a week and when they do, he just props his feet up on pillows. (Tr. 225-26). 

Plaintiff testified that while he does not have a driver’s license, he does some driving. (Tr. 227). 

Further, he said he has problems operating the pedals due to pain, but when asked if it ever goes
 6

The crux of the case appears to rest primarily on whether plaintiff can walk and/or stand one versus two hours out of an eight

hour day. 

SS\R&R\OWENS-JR.AFF-STEP5:3 18

away, plaintiff said yes. (Tr. 227). Plaintiff also testified there are times when he can walk two

blocks to the doctor and then walk straight back home. (Id.). It is undisputed that the hearing

record contains gaps in plaintiff’s testimony. Those gaps, however, are not so severe that remand

is required. From the testimony available, plaintiff’s position, in his application papers and

correspondence is consistent with his testimony at the hearing. Plaintiff has not directed the

Court to any critical portion of his testimony which was omitted from the hearing record.

Inaudible portions of the hearing record, with respect to the VE testimony, are more

troublesome. However, the record is clear that the hypothetical posed by the ALJ was responded

to by the VE, who determined that an individual with restrictions outlined in the hypothetical

would be capable of performing the jobs identified. In addition to the VE and the ALJ being

present, both plaintiff and his counsel attended the hearing, and nothing has been presented in this

appeal as to any areas of the VE testimony and/or cross-examination that were not transcribed or

that were inaccurate, so as to require reversal and/or remand.

This is an unfortunate case. Clearly, plaintiff suffers from impairments which

significantly affect his ability to ambulate, to stand for prolonged periods, and to walk. These

impairments, however, do not render him totally disabled. Were this issue being presented anew,

this Court might very well decide otherwise.6

 In the context of a disability appeal, however, the

issue is not as close. There is substantial evidence to support the ALJ’s RFC finding. This

finding, coupled with vocational expert testimony, provides a sufficient basis to affirm the finding

of not disabled.
SS\R&R\OWENS-JR.AFF-STEP5:3 19

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

AFFIRMED.

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 11th day of March 2008.

_____________________________________

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. 
SS\R&R\OWENS-JR.AFF-STEP5:3 20

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).