UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

GEORGIA SELLERS §

§

Plaintiff, §

§

v. § NO. 3:05-CV-1529-P

§

JO ANNE B. BARNHART, §

Commissioner of Social Security, §

§

Defendant. §

FINDINGS, CONCLUSIONS, AND RECOMMENDATION 

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to the provisions of 28 U.S.C. § 636(b) and an order of the District Court in

implementation thereof, the subject cause has previously been referred to the United States

Magistrate Judge. The findings, conclusions, and recommendations of the Magistrate Judge, as

evidenced by his signature thereto, are as follows: 

Procedural History: On September 23, 2002, Plaintiff filed an application for disability

insurance benefits and Supplemental Security Income (“SSI”) payments alleging disability due

to high blood pressure, iron deficiency, and varicose veins in her legs. (Administrative Record

60-63 [Hereinafter Tr.].) Plaintiff alleged that she had been disabled since July 25, 2002. (Tr. 

60). 

The Administrative Law Judge (“ALJ”) conducted a hearing on September 18, 2003. 

(Tr. 165-77.) On December 1, 2003, the ALJ denied Plaintiff’s request for disability insurance

benefits and SSI payments, finding that Ms. Sellers was not disabled because she retained the

residual functional capacity (“RFC”) to perform her past relevant work. (Tr. 21.) Plaintiff

timely requested a review of the ALJ’s decision by the Appeals Council, and on June 3, 2005,

 

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 “The scope of judicial review of a decision under the Supplemental Security Income

Program is identical to that of a decision under the Social Security Disability Program.” Harrell

v. Bowen, 862 F.2d 471, 475 n.4 (5th Cir. 1988) (citing Davis v. Heckler, 759 F.2d 432, 435 (5th

Cir. 1985)). Likewise, the relevant laws and regulations governing both types of claims are

identical. Davis, 759 F.2d at 435 n.1.

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the Appeals Council denied the request. (Tr. 4.) Therefore, the ALJ’s decision became the

Commissioner’s final decision for purposes of judicial review. See Masterson v. Barnhart, 309

F.3d 267, 271 (5th Cir. 2002).

Plaintiff filed her federal complaint on August 2, 2005. Defendant filed her answer on

October 7, 2005. On February 16, 2006, Plaintiff filed her brief and on March 30, 2006,

Defendant filed her brief. Plaintiff filed a reply brief on April 17, 2006. 

Standard of Review–Social Security Claims: When reviewing an ALJ’s decision to deny

benefits, the scope of judicial review is limited to a determination of whether: (1) the ALJ’s

decision is supported by substantial evidence and (2) the proper legal standard was applied. 

Castillo v. Barnhart, 325 F.3d 550, 551 (5th Cir. 2003) (citing Villa v. Sullivan, 895 F.2d 1019,

1021 (5th Cir. 1990)).1 “Substantial evidence is more than a scintilla, less than a preponderance,

and is such relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.” Villa, 895 F.2d at 1021-22 (quoting Hames v. Heckler, 707 F.2d 162, 164 (5th

Cir. 1983)). In determining whether substantial evidence exists, the court reviews the entire

record, but does not reweigh the evidence, retry the issues, or substitute its own judgment. Id. at

1022 (quoting Hollis v. Bowen, 837 F.2d 1378, 1383 (5th Cir. 1988)). Where the

Commissioner’s findings of fact are supported by substantial evidence, they are conclusive. 

Perez v. Barnhart, 415 F.3d 457, 461 (5th Cir. 2005) (citing Richardson v. Perales, 402 U.S.

 

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389, 390, 91 S. Ct. 1420, 1422 (1971)).

Discussion: 

To prevail on a claim for disability insurance benefits or SSI payments, a claimant bears

the burden of establishing that he or she is disabled, which is defined as “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 twelve months.” 20 C.F.R. § 404.1505. Substantial

gainful activity is defined as “work that involves doing significant and productive physical or

mental duties; and is done (or intended) for pay or profit.” § 404.1510. Where a claimant

applies for benefits, the claimant must prove the existence of a disabling impairment between the

claimant’s alleged onset date and the date last insured. See Moss v. Apfel, No. 98-20215, 1999

WL 130146, at *1 (5th Cir. Feb. 12, 1999) (citing § 404.320(b)(2)).

The ALJ uses a sequential five-step inquiry to determine whether a claimant is disabled.

See § 404.1520. Under the first four steps, a claimant has the burden of proving that his

disability prevents her from performing her past relevant work, but under the fifth step, the

burden shifts to the Commissioner to prove that there is other substantial gainful activity that the

claimant can perform. See, e.g., Bowen v. Yuckert, 482 U.S. 137, 146 n.5, 107 S. Ct. 2287, 2294

(1987); Anderson v. Sullivan, 887 F.2d 630, 632-33 (5th Cir. 1989). 

In this case, the ALJ proceeded to step four and determined that Plaintiff retained the

capacity to perform her past relevant work. (Tr. 21.) He therefore denied Plaintiff’s request for

disability insurance benefits and SSI payments. (Tr. 21-22.)

The documents contained in the administrative record reflect the following chronology of

 

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medical care:

Plaintiff saw a nurse at the Conway Outpatient Clinic for a prescription refill on February

28, 2000. (Tr. 139.) The records from this visit indicate that her primary diagnosis was high

blood pressure. (Tr. 139.) On August 15, 2001, Plaintiff saw a doctor at the Conway clinic for

a follow-up appointment regarding her lower back pain. (Tr. 137.) The doctor listed her

medications as: Flexeril, Ultram and Clonidine. (Tr. 137.) The doctor noted that Plaintiff’s

blood pressure had improved with use of Clonidine. (Tr. 137.) Plaintiff returned for another

follow-up appointment on December 5, 2001. (Tr. 136.) She reported experiencing edema in

her left ankle. (Tr. 136.) An X-ray was taken of her ankle and she was scheduled to return for a

follow-up appointment in two weeks. (Tr. 136.) Plaintiff returned on December 13, 2001. (Tr. 

135.) The doctor reviewed the X-ray of her ankle and determined that the swelling would

resolve itself without further treatment. (Tr. 135.) The doctor also noted that Plaintiff suffered

from hypertension, lower back pain and muscle spasms. (Tr. 135.)

Plaintiff was evaluated at the Conway Orthopedic Clinic on February 13, 2002. (Tr. 

134.) Her supine straight leg raising score was 70 and her deep tendon reflex score was +1. (Tr. 

134.) A spinal X-ray revealed a narrowing of the L1-2 and L2-3 disk spaces with associated

anterior and lateral osteophyte formation. (Tr. 133.) Small anterior osteophytes were also noted

at L3-4. (Tr. 133.) Plaintiff’s doctor prescribed 800 mg of Ibuprofen twice per day. (Tr. 134.) 

On February 18, 2002, Plaintiff was seen by a nurse at the Conway Outpatient Clinic

because she was suffering flu-like symptoms and because she needed a new prescription for

Clonidine. (Tr. 132.) The nurse noted that Ms. Sellers had a cough and congestion. (Tr. 132.) 

Her prescriptions for Clonidine and Flexeril were refilled and she was prescribed Capoten for her

 

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hypertension, Humibid for her cough and congestion and a back brace for her lower back pain. 

(Tr. 132.) Plaintiff returned on February 27, 2002, for a follow-up appointment. (Tr. 131.) A

nurse noted that her blood pressure was lower and that her medications were current. (Tr. 131.)

On July 25, 2002, Plaintiff went to the Franklin Medical Center emergency room due to

a nose bleed. (Tr. 117.) She reported that she visited the Louisiana State University Health

Sciences Center (LSUHSC) the previous Thursday due to a nose bleed. (Tr. 119.) A foam

sponge was placed in her nostril to control the bleeding. (Tr. 120.) The attending doctor noted

that she suffered from uncontrolled hypertension. (Tr. 120.) Plaintiff returned to the emergency

room the next day because she was suffering from a nose bleed and cough. (Tr. 113.) Blood

pressure testing revealed elevated systolic and diastolic pressure levels. (Tr. 114.) She was

given Catapres, an anti-hypertensive agent, and was released after her nose was no longer

bleeding. (Tr. 114.) Plaintiff again returned to the emergency room on July 29, 2002,

complaining of high blood pressure and dizziness. (Tr. 130.) Her blood pressure was 140/78. 

(Tr. 130.) The medical records from this visit are illegible. (Tr. 130.)

On August 16, 2002, Plaintiff was admitted to LSUHSC for one week due to shortness of

breath and bilateral leg edema. (Tr. 124.) She was treated by Dr. Patrick Flyte, who noted that

she had a history of medical non-compliance. (Tr. 125.) Dr. Flyte performed an exam and

noted bibasilar crackling sounds in her chest and bilateral edema in her legs. (Tr. 124.) An

electrocardiogram revealed mild concentric left ventricular hypertrophy and a normal ejection

fraction. (Tr. 125.) A chest X-ray showed increased pulmonary vasculature and cardiomegaly. 

(Tr. 125.) 

During her hospital stay, Plaintiff’s weight dropped from 223 pounds to below 200

 

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pounds and her blood pressure stabilized with medication. (Tr. 125.) Dr. Flyte diagnosed her

with a new onset of congestive heart failure as well as hypertension, iron deficiency anemia, and

hypercholesterolemia. (Tr. 126.) He recommended that she eat a low fat and low sodium diet

and prescribed the following medications: 325 mg of aspirin per day, 0.1 mg of Clonidine three

times per day, 325 mg of ferrous sulfate per day, 20 mg of Lasix once per day, 20 mg of K-Dur

once per day, 5 mg of Altace twice per day, 25 mg of Aldactone once per day, and 20 mg of

Zocor once per day. (Tr. 126.) He noted that her blood pressure was within normal limits upon

modification of her medicine. (Tr. 126.)

On October 29, 2002, Ms. Sellers returned to LSUHSC for a follow-up appointment. 

(Tr. 122.) Her blood pressure was taken four times and the readings were: 220/120, 208/140,

200/118 and 190/110. (Tr. 122.) Plaintiff reported that she was all out of her medications and

did not have the money to purchase more. (Tr. 122.) The doctor informed Ms. Sellers that she

was at risk of having a stroke if she did not take her medications. (Tr. 122.) She was given

samples of Clonidine to take home. (Tr. 122.)

On November 18, 2002, Plaintiff was evaluated by Dr. David Herbert, M.D, at the

request of the Social Security Administration. (Tr. 141.) Her chief complaints were: chronic

congestive heart failure, arterial hypertension, varicose veins and anemia due to iron deficiency. 

(Tr. 141.) Plaintiff also reported that she was diabetic and that she occasionally experienced

swelling in her ankles. (Tr. 141.) She denied suffering chest pain, shortness of breath at night

or back pain. (Tr. 141.) She reported that she regularly took Clonidine and Lasix and that she

was supposed to be taking additional medications, but could not afford them. (Tr. 141.) Her

blood pressure was 160/100 and an electrocardiogram was normal. (Tr. 143.) A chest X-ray

 

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 Plaintiff was not represented at the hearing. However, she acknowledged her right to

representation and elected to proceed without it. (Tr. 167-68.)

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revealed borderline cardiomegaly and heavy calcification of the lymph nodes in both hilar areas

of questionable significance. (Tr. 143.) A lumbar X-ray revealed early spur growth at several

vertebrae. (Tr. 143.) 

Regarding Plaintiff’s hypertension and heart condition, Dr. Herbert opined that

Plaintiff’s uncontrolled hypertension appeared to be causing end organ damage in that her chest

X-ray revealed mild cardiomegaly. (Tr. 143.) He did not find evidence of chronic heart failure. 

(Tr. 143.) He also noted that Plaintiff suffered from non-specific arthralgia with no real

impairment of function of any joints. (Tr. 143.) His final assessment was that “medically, I see

no reason she could not do routine walking, sitting, carrying and lifting for an eight hour day

especially if her blood pressure is controlled.” (Tr. 143-44.)

Plaintiff testified on her own behalf at the administrative hearing.2

 (Tr. 167-77.) She

stated that she was 59 years old and had obtained a high school education. (Tr. 168-69.) She

testified that her sole work experience was as a deli cook and that she finally quit working after

suffering nose bleeds, high blood pressure and heart failure. (Tr. 171-72.) Plaintiff testified that

after seeking medical attention for her nose bleeds, her blood pressure medication was changed

and she was placed on a low sodium diet, which improved her symptoms and led to significant

weight loss. (Tr. 172.) She also stated that she “broke a vein” in her legs and was unable to

stand for extended periods of time. (Tr. 173.) 

In response to the ALJ’s request that she describe her activities of daily living, Plaintiff

stated that she does housework that does not involve lifting, watches TV, reads, and sometimes

drives. (Tr. 173-74.) She also testified that she has pain when sitting due to a pulled muscle in

 

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her lower back that occurred during her last term of employment. (Tr. 174-75.) She said she

can sit for a couple of hours before she has to lay down and can stand for two or three hours

before she has to rest. (Tr. 175-76.) Regarding her ability to lift objects, she testified that she

used to be able to lift thirty pound cases of chicken, but could presently lift “at least” ten pounds. 

(Tr. 176.) 

The ALJ’s Evaluation of Plaintiff’s Residual Functional Capacity

Plaintiff first argues that the ALJ disregarded applicable legal standards because he

evaluated Ms. Seller’s RFC as though she was drug compliant even though the objective

evidence demonstrated that she was unable to purchase her prescribed medications. In support

of her argument, Plaintiff relies on Security Ruling 82-59, which sets forth the guidelines that an

ALJ must follow before determining that a claimant’s failure to follow a prescribed treatment

regimen precludes a finding of disability. 

Specifically, she argues that the ALJ should have addressed the fact that she could not

afford to purchase medications for her hypertension. See Pl.’s Brief at 10-11. An inability to

pay for medications can render an applicant disabled even though a medical condition might

otherwise be remediable. See Lovelace v. Bowen, 813 F.2d 55, 59 (5th Cir. 1987); Tamez v. 

Sullivan, 888 F.2d 334, 336 (5th Cir. 1989). The record suggests a history of non-compliance

with her prescribed medications. (Tr. 125.) There is but a single instance in which Plaintiff

explained that her lack of compliance was due to her inability to pay for medications. (Tr. 122.) 

However, the record otherwise shows that she was taking a medication for her blood pressure,

including the date on which she was examined by Dr. Herbert. In preparation for her

administrative hearing, she listed Clonidine as a prescription she was then currently taking, (Tr.

 

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 Ms. Sellers was taking her prescribed medication for hypertension both when she was

examined by Dr. Herbert as well as at the time of the administrative hearing.

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107), and further related at the hearing that she was taking a medication for her high blood

pressure, (Tr. 172.). 

However, notwithstanding Plaintiff’s argument, the Magistrate Judge finds no basis for

applying SSR 82-59, 1982 WL 31384 (S.S.A. 1982), to her disability claim. The rule is

applicable only in instances where an ALJ finds that a claimant is not disabled due to the

claimant’s failure to follow a prescribed course of treatment. Although the record contains some

notations indicating unspecified instances of non-compliance, the ALJ did not find that her blood

pressure alone or in combination with her other impairments were not disabling because of her

failure to follow medical directives. Rather, the ALJ gave great weight to Dr. Herbert’s finding

that she had arterial hypertension, poorly controlled at the present, but despite this circumstance

it did not preclude her ability to engage in substantial gainful activity. (Tr. 143-44.) In

affording weight to Dr. Herbert’s findings, the ALJ noted that his opinion was consistent with

the objective evidence in the record. (Tr. 19.)3

The ALJ’s Assessment of Plaintiff’s Credibility

Plaintiff also argues that the ALJ failed to apply the correct legal standard when assessing

Plaintiff’s credibility because the ALJ did not consider the seven factors set forth in Social

Security Ruling 96-7p. The seven factors are:

1. The individual's daily activities;

2. The location, duration, frequency, and intensity of the individual's pain or other

symptoms;

3. Factors that precipitate and aggravate the symptoms;

4. The type, dosage, effectiveness, and side effects of any medication the individual takes

or has taken to alleviate pain or other symptoms;

5. Treatment, other than medication, the individual receives or has received for relief of

 

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pain or other symptoms;

6. Any measures other than treatment the individual uses or has used to relieve pain or

other symptoms (e.g., lying flat on his or her back, standing for 15 to 20 minutes every

hour, or sleeping on a board); and

7. Any other factors concerning the individual's functional limitations and restrictions

due to pain or other symptoms.

SSR 96-7p, 1996 WL 374186, at *3 (S.S.R. 1996).

However, Plaintiff’s argument is without merit, because the ALJ addressed all of the

factors that applied to Plaintiff’s condition. See Nall v. Barnhart, 78 Fed. Appx. 996, 997 (5th

Cir. 2003) (holding that a failure to apply all of the factors in SSR 96-7p was harmless error). 

The ALJ discussed Plaintiff’s testimony regarding her activities of daily living and concluded

that her level of activity was higher than that of a totally disabled individual. (Tr. 17, 19.) He

also recounted her testimony regarding the impairments she believed precluded her from

working and discussed the medical evidence pertaining to the severity of her alleged

impairments. (Tr. 17-19.) He also noted that Plaintiff took Tylenol to control lower back pain. 

(Tr. 19.) 

The ALJ did not discuss the final three factors because there was little or no evidence

relating to them. It is clear from the medical records and Plaintiff’s testimony that prescription

medication was the primary tool used to control her symptoms. While there is also evidence in

the record that Ms. Seller’s physician recommended that she start eating a low-fat, low-sodium

diet and that she was prescribed a back brace, Plaintiff did not describe how she was prejudiced

by the ALJ’s failure to discuss these forms of treatment. Similarly, although Plaintiff testified

that she needed to “rest” after standing for more than a couple of hours, this claim was contrary

to the objective medical evidence and the opinion of Dr. Herbert. Resolution of this conflicting

evidence was reserved to the ALJ who found her claims credible only to the extent that her

 

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limitations were supported by other evidence in the record. (Tr. 21.) Since the ALJ did not find

that she needed this accommodation, there was no occasion to address whether it would have

rendered her unable to work.

The ALJ’s Assessment of the Physical Requirements of Plaintiff’s Past Relevant Work

Finally, Plaintiff argues that the ALJ did not follow the correct legal standards in

determining the physical requirements of Plaintiff’s past work as a deli cook. In the alternative,

Plaintiff argues that substantial evidence does not support the ALJ’s finding that Ms. Sellers

could return to her past relevant work.

An ALJ is required to assess the physical demands of a claimant’s past jobs when

determining whether the claimant can perform her former work. Villa v. Sullivan, 895 F.2d

1019, 1022 (5th Cir. 1990). This determination may rest on the claimant’s own descriptions of

her past work performance. Id. Additionally the ALJ may “take notice of job data in the

Dictionary of Occupational Titles (“DOT”), which reflects the exertional requirements of a job

as performed in the national economy.” Id. (citing 20 C.F.R. § 404.1566(d)(1)).

In his findings, the ALJ recounted that Plaintiff described her past work as a “deli/shortorder cook” and that she never lifted more than ten pounds. (Tr. 20.) Utilizing the descriptive

information from DOT 313.374-014, which lists the exertional requirements of a short-order

cook as the job is performed in the national economy, he determined that Ms. Sellers retained

the capacity to perform her past employment because a short-order cook is not required to lift

more than twenty pounds. (Tr. 20.) Plaintiff argues that the ALJ incompletely summarized her

description of past relevant work because she indicated on her Disability Report Form that her

past work required her to lift thirty pounds. However, a review of the written documentation

 

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completed by Ms. Sellers demonstrates that she consistently averred that ten pounds was the

heaviest weight she was required to lift by herself at any of her past three employment positions. 

(Tr. 80, 89-91.) Although she testified that she had previously lifted 30 pound cases of chicken

from time to time, (Tr. 176), the specific requirements of that employment did not preclude the

ALJ from finding that she could meet the exertional requirements of a short-order cook set out in

the DOT and in light of the Plaintiff’s own testimony describing that she was only required to lift

ten pounds as the maximum exertional requirement of her last job. See Villa, 895 F.2d at 1022.

 

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RECOMMENDATION:

For the forgoing reasons, it is recommended that the District Court enter its order

AFFIRMING the Commissioner’s decision and that a judgment be entered DISMISSING

Plaintiff’s complaint with prejudice. A copy of this recommendation shall be transmitted to

counsel for the parties.

Signed this 20th day of September, 2006.

_________________________

 Wm. F. Sanderson Jr.

United States Magistrate Judge

NOTICE

In the event that you wish to object to this recommendation, you are hereby notified that

you must file your written objections within ten (10) days after being served with a copy of this

recommendation. Pursuant to Douglass v. United Servs. Auto Ass’n, 79 F.3d 1415 (5th Cir.

1996)(en banc), a party=s failure to file written objections to these proposed findings of fact and

conclusions of law within such ten (10) day period may bar a de novo determination by the

district judge of any finding of fact and conclusion of law and shall bar such party, except upon

grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and

conclusions of law accepted by the district court. 

 

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