IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

BRENDA K. UNERFUSSER, §

PLAINTIFF, §

§

VS. § CIVIL ACTION NO. 4:05-CV-368-Y

§

JO ANNE B. BARNHART, §

COMMISSIONER OF SOCIAL SECURITY, §

DEFENDANT. §

FINDINGS, CONCLUSIONS AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

AND

NOTICE AND ORDER

This case was referred to the United States Magistrate Judge pursuant to the provisions of

Title 28, United States Code, Section 636(b). The Findings, Conclusions and Recommendation of

the United States Magistrate Judge are as follows:

FINDINGS AND CONCLUSIONS

A. STATEMENT OF THE CASE

Plaintiff Brenda K. Unerfusser brings this action pursuant to Sections 405(g) and 1383(c)(3)

of Title 42 of the United States Code for judicial review of a final decision of the Commissioner of

Social Security denying her claim for disability benefits under Title II and supplemental security

income or SSI benefits under Title XVI of the Social Security Act. Unerfusser applied for disability

insurance and SSI benefits in December 2002 (with a protective filing date of October 31, 2002),

alleging that her disability commenced June 13, 2000. (Tr. 102, 110, 552). She maintained her

insured status at all times relevant to the Commissioner’s decision. 

 

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1 Sedentary work involves lifting no more than ten 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. 20 C.F.R. §§404.1567(a),

416.967(a).

2

After the Social Security Administration denied Unerfusser’s application for benefits both

initially and on reconsideration, Unerfusser requested a hearing before an administrative law judge

(the "ALJ"), and ALJ James A. Wendland held a hearing on March 9, 2004 in Fort Worth, Texas.

(Tr. 36-65). Unerfusser was represented by counsel. On April 26, 2004, the ALJ issued a decision

that Unerfusser was not disabled and not entitled to disability or SSI benefits because she retained

the residual functional capacity to perform a modified range of sedentary work.1

 (Tr. 20-28). The

Appeals Council denied Unerfusser’s request for review of her case, leaving the ALJ’s decision to

stand as the final decision of the Commissioner. (Tr. 6). 

B. STANDARD OF REVIEW

The Social Security Act defines a disability as a medically determinable physical or mental

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

gainful activity. 42 U.S.C. § 423(d), 1382c(a)(3)(A); McQueen v. Apfel, 168 F.3d 152, 154 (5th Cir.

1999). To determine whether a claimant is disabled, and thus entitled to disability benefits, a fivestep analysis is employed. 20 C.F.R. §§ 404.1520, 416.920. First, the claimant must not be presently

working at any substantial gainful activity. Substantial gainful activity is defined as work activity

involving the use of significant physical or mental abilities for pay or profit. 20 C.F.R. §§ 404.1527,

416.972. Second, the claimant must have an impairment or combination of impairments that is

severe. An impairment or combination of impairments is not severe if it has such minimal effect on

the individual that it would not be expected to interfere with the individual’s ability to work. 20

 

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3

C.F.R. §§ 404.1520(c), 416.920(c); Stone v. Heckler, 752 F.2d 1099, 1101 (5th Cir. 1985), cited in

Loza v. Apfel, 219 F.3d 378, 392 (5th Cir. 2000). At the third step, disability will be found if

claimant’s impairment or combination of impairments meets or equals an impairment listed in the

appendix to the regulations. Id. §§ 404.1520(d), 416.920(d). Fourth, if disability cannot be found

on the basis of claimant’s medical status alone, the impairment or impairments must prevent the

claimant from returning to his past relevant work. Id. §§ 404.1520(e), 416.920(e). And fifth, the

impairment must prevent the claimant from doing any work, considering the claimant's residual

functional capacity, age, education, and past work experience. Id. §§ 404.1520(f), 416.920(f);

Crowley v. Apfel, 197 F.3d 194, 197-98 (5th Cir.1999). 

At steps one through four, the burden of proof rests upon the claimant to show he is disabled.

If the claimant satisfies this responsibility, the burden shifts to the Commissioner at step five of the

process to show that there is other gainful employment the claimant is capable of performing in spite

of his existing impairments. Crowley, 197 F.3d at 198. If the Commissioner meets this burden, the

claimant must then prove that he cannot in fact perform the work suggested. Waters v. Barnhart, 276

F.3d 716, 718 (5th Cir. 2002). A finding at any point in the five-step process that a claimant is

disabled or not disabled is conclusive and terminates the analysis. Masterson v. Barnhart, 309 F.3d

267, 272 (5th Cir. 2002).

A denial of disability benefits is reviewed only to determine whether the Commissioner

applied the correct legal standards and whether the decision is supported by substantial evidence in

the record as a whole. Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995); Hollis v. Bowen, 837

F.2d 1378, 1382 (5th Cir. 1988). Substantial evidence is such relevant evidence as a responsible

 

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2

 Migraines refer to an often familial symptom complex of periodic attacks of vascular headache, usually

temporal and unilateral in onset, commonly associated with irritability, nausea, vomiting, constipation or diarrhea,

and often photophobia. DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1117 (29th ed. 2000). 

4

mind might accept to support a conclusion. Boyd v. Apfel, 239 F.3d 698, 704 (5th Cir. 2001). It is

more than a mere scintilla, but less than a preponderance. Id. A finding of no substantial evidence

is appropriate only if no credible evidentiary choices or medical findings support the decision. Id.

This Court may neither reweigh the evidence in the record nor substitute its judgment for the

Commissioner's, but will carefully scrutinize the record to determine if the evidence is present.

Harris v. Apfel, 209 F.3d 413, 417 (5th Cir.2000); Hollis, 837 F.2d at 1383.

C. ISSUE

Is the residual functional capacity assessment supported by substantial evidence?

D. ADMINISTRATIVE RECORD

1. Treatment History

Unerfusser was struck by a truck as she was crossing a street on June 13, 2000. She was

thrown to the pavement, landing on her left side and injuring her left knee, hip, arm and shoulder.

 (Tr. 206, 209). She does not contend that the ALJ failed to incorporate the work-related restrictions

these injuries impose in his assessment of her residual functional capacity. Instead, she limits her

complaints to the ALJ’s consideration of the work-related impact of her migraine headaches.2

 Her

migraine headaches began when she was a teenager, but allegedly worsened after her accident in

June 2000.

 Unerfusser saw neurologist Larry Ridings, M.D., from December 1997 through at least 2000

for treatment and evaluation of chronic headaches. (Tr. 382-87). She advised Ridings that her

 

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migraine headache symptoms began in junior high school, were usually concentrated on the right

side of her head, and were accompanied by vision disturbances, nausea, occasional vomiting, and

tingling in her left arm. She reported that she might remain pain-free for months, then begin a cycle

of headaches that occurred every few days. (Tr. 385). During her initial evaluation with Ridings

in 1997, she stated that she was usually able to continue working with her headache, although she

would prefer to sleep. During a follow-up visit in January 2000, approximately six months before

her alleged onset date, Unerfusser reported that her headaches were now alternating sides, with each

side of her head affected with about the same frequency. She was averaging one to four headaches

per month. Sometimes her headaches were preceded by spots that appeared in her vision, which

alerted her to take her medication. She noted that her headaches tended to be more frequent when

her stress level was higher. Unerfusser indicated that her medications were effective, and reported

that she remained fairly functional and hardly ever missed work. (Tr. 383). Ridings concluded that

Unerfusser’s symptoms were well-controlled on her current regimen, but he added a prescription

for Elavil because Unerfusser complained of insomnia. (Tr. 384).

On December 1, 2000, Unerfusser advised Ridings that she was having headaches twice a

week on average with her headaches lasting up to one week in duration, although the severity

fluctuated. (Tr. 382). Unerfusser reported being stressed recently because of her worker’s

compensation injury, and she was also caring for her one-year-old grandson and sleeping poorly.

Her overall mood was considered good, and she did not appear particularly anxious during the

evaluation. She demonstrated no cranial nerve, motor, or sensory impairment. Ridings observed

normal coordination and gait. Ridings assessed a chronic common migraine syndrome with a

 

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tendency to cluster, (Tr. 382), and prescribed a trial dose of Petadolex. He noted that Unerfusser

could need periodic intravenous pain control, and referred her to the local emergency room or her

primary care physician if she needed that type of care. (Tr. 382).

Stephen Cordas, D.O., examined Unerfusser in September 2000 to assess her recovery after

the accident. He determined that she had not yet reached maximum medical improvement, and

recommended additional diagnostic tests and treatment for left-sided pain. (Tr. 391). Six months

later, Cordas found that Unerfusser had reached maximum medical improvement as of March 26,

2001. He assigned a 12% impairment rating, but opined that Unerfusser’s chronic pain syndrome

required ongoing care and restricted her ability to perform jobs that required standing, climbing,

squatting, pushing, pulling, and fine motor dexterity with her left hand. (Tr. 410-12). On January

14, 2002, Cordas reiterated that Unerfusser’s functional capacity evaluation was consistent with a

weak left-handed grip and generalized body pain that resulted in an inability to squat, perform back

or high-near lifting, or perform repetitive tasking. (Tr. 167-68).

On November 16, 2001, Unerfusser’s headache medications were refilled. (Tr. 302). Her

primary care physician referred her to neurologist Sreekumaran Nair, M.D., for evaluation of her

headaches. Nair examined Unerfusser on December 20, 2001. (Tr. 424). At the evaluation,

Unerfusser reported that she had a headache that had persisted for four days and was not responding

to her medications. She described her headaches as moderately severe, and noted that they occurred

more frequently and were more severe after her accident in June 2000. A neurological assessment

was unremarkable. Nair assessed severe migraine headaches with a possible combination of tension

headaches. (Tr. 425). He recommended that Unerfusser undergo magnetic resonance imaging (an

 

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MRI) of her brain to rule out lesions. Because Unerfusser was reportedly somewhat resistant to

most medications she had tried, Nair recommended that she cease or decrease her use of her current

medications. He prescribed a new medication for tension headaches, and also gave her a trial dose

of a new migraine medication. (Tr. 425). 

In September and October 2002, Unerfusser complained of headaches with pain that had

required her to go to the emergency. (Tr. 431). She went to the emergency room again in January

2003, for injections of pain relievers and anti-nausea medication. (Tr. 524-25). In March 2003,

Unerfusser reported to her primary care physician that she was doing well, with a decrease in her

migraines, but went to the emergency room in April for a migraine headache that had persisted for

two weeks. (Tr. 332, 360, 522). Unerfusser went to the emergency room on May 13, 2003 for a

migraine headache triggered by the odor of hot asphalt. (Tr. 520). She was treated and released,

but returned on May 22, 2003, complaining of a migraine that had persisted for a week and was

accompanied by nausea, vomiting, and photophobia. (Tr. 518). In July and three additional

occasions in August 2003, Unerfusser sought treatment at the local emergency room for her

migraines. (Tr. 488-505). She also went to the emergency room in November 2003 and twice in

December 2003 because of persistent and severe headaches, and was given pain medication and

medication to alleviate her nausea. (Tr. 482-87). On January 8, 2004, Unerfusser went to the

emergency room complaining of a migraine for the past week, with nausea, vomiting, and

photophobia. (Tr. 480). She was released after receiving an injection of pain medication to relieve

her symptoms.

2. Administrative Hearing

 

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Born May 22, 1949, Unerfusser was fifty-one years old on her alleged onset date. (Tr. 102).

She completed high school, and had worked as an accounting clerk and administrative clerk until

the date of her accident. (Tr. 112, 124).

Unerfusser testified that her physician had imposed a ten-pound lifting restriction. She

testified that she was in pain after standing fifteen to thirty minutes, and also complained of constant

pain in her left hip. (Tr. 51-52). Unerfusser testified that her ability to walk was limited. Walking

more than fifteen minutes was painful, and after thirty minutes of walking, she had to sit down and

rest. Her ability to sit was also limited. She testified that she started squirming and needed to stand

at least briefly after sitting for thirty minutes. (Tr .41-42). She complained of pain and weakness

in her left knee and hip, and pain from her neck that radiated into her left arm and hand. Unerfusser

testified that she had reduced dexterity in her left hand, limited range of motion in her left arm, and

was unable to carry any weight with her left arm. She also difficulty turning her head to the left.

(Tr. 42).

Unerfusser testified that she had experienced migraines since the age of thirteen. Her

headaches varied in frequency, but had become more severe after her accident. (Tr. 43). She used

pain medication for her headache, but noted that she was allergic to many of the newer headache

medications. She was also taking medication for anxiety and depression, and testified that the

medication seemed to help her symptoms. (Tr. 44).

Unerfusser testified that she lived with her mother, her son, and two of her grandchildren.

She performed her range-of-motion exercises daily and also worked on her computer, but had

trouble using her left arm to operate the computer. She occasionally helped fold laundry or prepare

 

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 Unerfusser is right-handed. (Tr. 55).

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meals, and watched her three-year-old grandson. (Tr. 45). Unerfusser complained of being more

irritable. She attended church and occasionally went out to eat, but shopped on only rare occasions

because of her walking limitations. Unerfusser testified that she did not drive, and never had. She

read, but used a platform to support her book. She also watched television. (Tr. 46). Unerfusser

testified that she had an excellent memory before her accident, but now had problems with her

memory, even for simple tasks that she had done for years. (Tr. 52-53).

Vocational expert Todd Harden testified that work as accounting clerk was a skilled job

requiring sedentary exertion. Work as an administrative clerk was considered semiskilled work that

required light exertion. (Tr. 54). The ALJ asked Harden to consider a variety of hypothetical

situations, including a hypothetical worker of Unerfusser’s age, education and work experiences

who was able to perform sedentary work with the following limitations: not required to stoop,

balance, crouch, crawl, kneel or climb stairs and ramps more than occasionally; not required to

climb scaffolds, ladders, and ropes; not required to lift with the left, non-dominant,3

 upper extremity;

not required to sit for more than thirty minutes at one time without the opportunity to stand, in

addition to lunch and normal work breaks during the day; not required to walk for more than thirty

minutes at one time without the opportunity to sit; not required to work above shoulder-level with

the upper left extremity; not required to push, pull, or perform extended reaching more than

occasionally, and not required to push or pull with the feet; not required to handle or finger objects

with the left upper extremity more than occasionally; not required to understand, remember and

carry out more than detailed instructions; and not required to do repetitive up-and-down or side-to-

 

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side neck movements. (Tr. 56-58). 

Although these restrictions would rule out Unerfusser’s past relevant work, the vocational

expert identified several sedentary jobs to which Unerfusser’s work skills would transfer: night

auditor (with approximately 35,000 jobs nationally and 2,800 in Texas), appointment clerk (with

40,000 jobs nationally and 3,200 in Texas), and customer complaint clerk (with approximately

30,000 jobs nationwide and 2,500 in Texas). (Tr. 58). Unerfusser’s transferable work skills

included bookkeeping, oral communication, and general clerical skills. (Tr. 59). In response to

questioning from Unerfusser’s attorney, Harden indicated that the limitations in squatting, lifting

and repetitive tasking identified in Cordis’s reports would not affect the jobs he had identified;

however, a person requiring rest breaks of ten to fifteen minutes every hour would preclude any

competitive employment. (Tr. 63-64).

3. ALJ Decision

The ALJ found that Unerfusser had not engaged in substantial gainful activity since June 13,

2000. (Tr. 26). The ALJ found that Unerfusser had multiple severe impairments, including bulging

disks in her cervical spine, with left-sided radiculopathy; left shoulder impingement syndrome with

degenerative changes; degenerative changes, chondromalacia, and soft tissue injury in the left knee;

low back pain; and status post ileostomy and colostomy. The ALJ also noted Unerfusser’s history

of migraine headaches and hypertension. (Tr. 26). The ALJ found that Unerfusser had no severe

mental impairment despite some depressive symptoms, but determined that her chronic pain did

result in some work-related mental limitations. (Tr. 23-24). He found that she had no impairment

or combination of impairments listed in or equal in severity to an impairment found in the Listing

 

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of Impairments. (Tr. 26).

The ALJ assessed a residual functional capacity for sedentary work with the following

restrictions: Unerfusser cannot stoop, balance, crouch, crawl, kneel, or climb stairs or ramps more

than occasionally; she cannot climb scaffolds, ladders or ropes; she cannot lift with her left upper

extremity; she cannot sit for more than thirty minutes at a time without the opportunity to stand; she

cannot walk for more than thirty minutes without the opportunity to sit; she cannot work above

shoulder-level with her left upper extremity; she cannot push, pull, or perform extended reaching

more than occasionally; she cannot push or pull with the feet; she cannot handle or finger objects

with the left upper extremity more than occasionally; she cannot do repetitive up-and-down or sideto-side neck movements; and she cannot understand, remember, and carry out more than detailed

instructions. (Tr. 27). Based on Unerfusser’s age, education, and transferable work skills, as well

as the vocational expert’s testimony, the ALJ found that there were a significant number of jobs

available in the national economy that Unerfusser could perform. (Tr. 27). Accordingly, the ALJ

concluded that Unerfusser was not disabled and was ineligible for disability insurance or SSI

benefits. (Tr. 28). 

D. DISCUSSION

Unerfusser contends that the ALJ’s assessment of her residual functional capacity is not

supported by substantial evidence because it does not incorporate functional limitations attributable

to her chronic migraine headaches. She also disputes the accuracy of some of the statements about

her headaches that are included in the ALJ’s decision.

Unerfusser complains that it was contradictory of the ALJ to include her migraines in

 

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identifying her impairments, but than fail to include any limitations resulting from her migraines in

his assessment of her residual functional capacity. The ALJ’s assessment is extensive and detailed.

The ALJ imposed a variety of physical restrictions, but also noted that Unerfusser experienced a

certain amount of pain on a constant basis, which restricted her ability to perform basic work-related

mental activities and precluded her from understanding, remembering, or carrying out more than

detailed instructions. (Tr. 24). Unerfusser does not identify any additional limitations that her

headaches impose that were omitted from the ALJ’s assessment or were not adequately

accommodated by a consideration of her constant pain, regardless of the source of the pain.

As for Unerfusser’s complaints about inaccuracies in the ALJ’s determination, her

complaints involve the ALJ’s statements that Unerfusser seeks occasional emergency room care, that

her headaches are under fair control with medication, and that she reads, uses a computer, and cares

for her grandchild despite her headaches. The court finds that most of the statements Unerfusser

complains of appear to be reasonable deductions from the medical record and Unerfusser’s

subjective reports, but to the extent the ALJ has overstated or misstated some facts, the court finds

that Unerfusser has failed to show harm that would justify reversing the Commissioner’s decision.

See Frank v. Barnhart, 326 F.3d 618, 622 (5th Cir. 2003)(declining to address claimant’s argument

because, even if there were error in ALJ’s decision, it was harmless); Mays v. Bowen, 837 F.2d

1362, 1364 (5th Cir. 1988)(court will not vacate administrative decision unless substantial rights have

been affected). Substantial evidence supports the ALJ’s assessment of Unerfusser’s residual

functional capacity, and the ultimate determination that she is not disabled as that term is defined

for purposes of Title II or Title XVI of the Social Security Act.

 

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RECOMMENDATION

It is recommended that the Commissioner’s decision be affirmed.

NOTICE OF RIGHT TO OBJECT TO PROPOSED

 FINDINGS, CONCLUSIONS AND RECOMMENDATION

 AND CONSEQUENCES OF FAILURE TO OBJECT

Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific

written objections in the United States District Court to the United States Magistrate Judge’s

proposed findings, conclusions and recommendation within ten (10) days after the party has been

served with a copy of this document. The court is hereby extending the deadline within which to

file specific written objections to the United States Magistrate Judge’s proposed findings,

conclusions and recommendation until June 27, 2006. The United States District Judge need only

make a de novo determination of those portions of the United States Magistrate Judge’s proposed

findings, conclusions and recommendation to which specific objection is timely made. See 28

U.S.C. § 636(b)(1). Failure to file by the date stated above a specific written objection to a proposed

factual finding or legal conclusion will bar a party, except upon grounds of plain error or manifest

injustice, from attacking on appeal any such proposed factual findings and legal conclusions

accepted by the United States District Judge. See Douglass v. United Services Auto Ass'n, 79 F.3d

1415, 1428-29 (5th Cir. 1996)(en banc).

ORDER

Under 28 U.S.C. § 636, it is hereby ORDERED that each party is granted until June 27, 2006

to serve and file written objections to the United States Magistrate Judge’s proposed findings,

conclusions and recommendation. It is further ORDERED that if objections are filed and the

 

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opposing party chooses to file a response, the response shall be filed within seven (7) days of the

filing date of the objections.

It is further ORDERED that the above-styled and numbered action, previously referred to

the United States Magistrate Judge for findings, conclusions and recommendation, be and hereby

is returned to the docket of the United States District Judge.

SIGNED JUNE 5 , 2006.

 /s/ Charles Bleil 

CHARLES BLEIL

UNITED STATES MAGISTRATE JUDGE

 

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