IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

SAN ANGELO DIVISION

§

JAN ELLEN ADAMS, §

§

 Plaintiff, §

§

vs. § Civil Action No. 6:05-CV-042-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 20, 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 27, 2005, and Defendant filed her brief

on November 18, 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 reverse the Commissioner’s decision and remand this matter for further proceedings.

I. STATEMENT OF THE CASE

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

supplemental security income benefits with a protective filing date of October 22, 2002, alleging

 

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disability beginning February 22, 2001. Tr. 16, 70-71, 652-54. Plaintiff’s applications were denied

initially and upon reconsideration. Tr. 16, 38-42, 45-49, 641-54. Plaintiff filed a Request for

Hearing by Administrative Law Judge on July 16, 2003, and this matter came for hearing before the

Administrative Law Judge (“ALJ”) on August 18, 2004. Tr. 16, 36-37, 655-89. Plaintiff,

represented by a non-attorney, testified in her own behalf. Tr. 658-86. Michael Driscoll, a

vocational expert (“VE”), appeared and testified as well. Tr. 16, 686-88. The ALJ issued a decision

unfavorable to Plaintiff on December 14, 2004. Tr. 13-26. 

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 on February 22, 2001, through December 31, 2001, and Plaintiff had not

engaged in substantial gainful activity at any time since February 22, 2001. Tr. 17. Plaintiff has

“severe” impairments, including systemic lupus erythematosus (“SLE”), fibromyalgia, obesity,

reflux esophagitis, asthma, tension headaches, a history of bilateral carpal tunnel syndrome status

post bilateral surgical releases, and diagnosed depression versus a bipolar disorder. 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. Plaintiff’s borderline intellectual functioning was not a “severe” impairment because “her ability

to understand, remember and carry out simple job instructions is not compromised by a full scale

IQ of 75.” Tr. 22. 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 noted Plaintiff’s history of epigastric symptoms which later resolved. Tr. 18. The

ALJ noted that by March 2002, Plaintiff was participating in a longitudinal study of her lupus

symptoms and treatment and was monitored by a neurologist. Id. He noted Plaintiff’s complaints

 

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1 The essential features of a dysthymic disorder include a chronically depressed mood

that occurs for most of the day, more days than not, for at least two years. See American

Psychiatric Assoc., Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) at 376-77

(“DSM-IV”). During periods of depressed mood at least two of the following symptoms are present:

poor appetite or overeating, insomnia or hypersomnia, low energy or fatigue, low self-esteem, poor

concentration or difficulty making decisions, and feelings of hopelessness. Id. As described in the

DSM-IV, this diagnosis is not made if the person had a symptom-free period of longer than two

months during the initial two years, the symptoms include a major depressive episode during the

initial two years, or if the person has ever had a manic, mixed, or hypomanic episode, or if the

person has met the criteria for a cyclothymic disorder. Id. at 377.

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of increased fatigue, headaches, inability to sleep, increased fibromyalgia pain, and a rash on her

arms, legs, and trunk. Id. He noted that Plaintiff was treated with a short course of steroids and was

prescribed Neurontin. Id. He noted Plaintiff’s report of a history of asthma, headaches, and poor

memory, as well as numbness and decreased grip strength in her hands bilaterally. Id. The ALJ

noted that upon examination, a different neurologist reported that Plaintiff had an appropriate affect;

demonstrated intact memory, attention, and concentration; had an intact gait, reflexes, strength, and

sensation; had a decreased grip strength, weakness of both abductor pollicis brevis muscles, and

positive Tinel’s signs at the wrists bilaterally. Id. The ALJ noted that testing indicated moderate

left carpal tunnel syndrome, and a bilateral carpal tunnel release was performed in September 2002.

Id. The ALJ noted Plaintiff’s continued reports of headaches in January 2003. Tr. 19. He noted

that Plaintiff underwent a consultative psychiatric evaluation, wherein she was diagnosed with a

dysthymic disorder1

 characterized by moderate symptoms, and was given a a Global Assessment of

 

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2 The GAF score on Axis V is for reporting the client’s “psychological, social, and

occupational functioning.” See American Psychiatric Assoc., Diagnostic and Statistical Manual of

Mental Disorders (4th ed. 1994) at 32 (“DSM-IV”). This report of overall functioning is noted to

be “useful in planning treatment and measuring its impact, and in predicting outcome.” Id.

3 The axial system of evaluation enables the clinician to comprehensively and

systematically evaluate a client. See generally, American Psychiatric Assoc., Diagnostic and

Statistical Manual of Mental Disorders (4th ed. 1994) at 25-30.

4 The DSM-IV defines a GAF score of 51-60 as moderate symptoms (e.g. flat effect,

circumstantial speech, and occasional panic attacks) or moderate difficulty in social, occupational,

or school functioning (e.g. few friends, conflicts with peers or co-workers). American Psychiatric

Assoc., Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) at 32.

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Functioning (“GAF”)2

 score on Axis V3 of 55,4 as well as borderline intellectual functioning with

a full scale IQ score of 75. Id.

 The ALJ found that Plaintiff has underlying medically determinable impairments which

could reasonably cause the symptoms alleged. Tr. 23. However, the ALJ found that, based on the

evidence in the record as a whole, 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

completely unable to perform any work activity. Id. The ALJ discussed the evidence in the record

and Plaintiff’s subjective complaints regarding her impairments and the limitations imposed therein.

Id. He noted that “[t]he evidence clearly establishes a pattern of significant complaints about a

variety of impairments with little or no objective verification of significant functional limitation.”

Id. The ALJ ultimately found that Plaintiff “has exaggerated both the nature and the severity of her

symptoms in an overt attempt to obtain disability benefits.” Tr. 24.

 The ALJ found that Plaintiff retained the RFC to perform simple, repetitive sedentary work

activity on a sustained and continuing basis. Tr. 25. The ALJ found that Plaintiff could not return

to her past relevant work as a nurse’s aide or cook. Tr. 24. He noted that Plaintiff was considered

a “younger” person with a 12th grade education. Tr. 25; see 20 C.F.R. §§ 416.963, 416.964. Having

 

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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. Id. 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 bench assembler,

with 21,000 jobs in Texas and 300,000 jobs nationally; document preparer, with 2,500 jobs in Texas

and 106,000 jobs nationally; and order clerk in the food/beverage industry, with 4,300 jobs in Texas

and 182,000 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. 16, 26. 

Plaintiff submitted a Request for Review of Hearing Decision/Order on February 15, 2005.

Tr. 10-11. The Appeals Council issued its opinion on April 19, 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. 7-9. The

ALJ’s decision, therefore, became the final decision of the Commissioner. 

Plaintiff requested an extension of time to file a civil action in this matter, which was

granted. On June 20, 2005, Plaintiff commenced this action which seeks judicial review of the

Commissioner’s decision that Plaintiff was not disabled.

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

 

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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. 16, 25.

III. DISCUSSION

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

substantial evidence because the ALJ failed to consider the entire record and appropriately weigh

and consider the reports and opinions of the treating and examining physicians with regard to

Plaintiff’s impairments and their effects on her ability to work; failed to consider all the effects of

Plaintiff’s impairment which are established in the record in determining his RFC assessment; failed

to properly evaluate the testimony of Plaintiff; and failed to determine whether Plaintiff could not

maintain employment in light of her mental impairments.

 

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A. Whether the ALJ’s determination of Plaintiff’s RFC is supported by substantial

evidence.

Plaintiff argues that the ALJ erred in making his RFC in several respects. She argues that

the ALJ failed to give appropriate weight to the opinions of her treating and examining physicians,

particularly as to the limitations imposed by her impairments, failed to consider and incorporate all

of the limitations imposed by her impairments into the RFC finding, and failed to appropriately

consider her own testimony as to the limitations imposed by her impairments. She argues that as

a result of these errors, the RFC assessment does not reflect all of the limitations established by the

record. 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).

The opinion of a treating physician who is familiar with the claimant’s impairments,

treatments, and responses should be accorded great weight in determining disability. A treating

physician’s opinion on the nature and severity of a patient’s impairment will be given controlling

weight if it “is well-supported by medically acceptable clinical and laboratory diagnostic techniques

and is not inconsistent with the other substantial evidence in [the] record.” 20 C.F.R.

§ 404.1527(d)(2). On the other hand, “[g]ood cause may permit an ALJ to discount the weight of

a treating physician relative to other experts where the treating physician’s evidence is conclusory,

is unsupported by medically acceptable clinical, laboratory, or diagnostic techniques, or is otherwise

unsupported by the evidence.” Newton, 209 F.3d at 456. 

However, “[a]mong the opinions by treating doctors that have no special significance are

determinations that an applicant is ‘disabled’ or ‘unable to work.’ These determinations are legal

 

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conclusions that the regulation describes as ‘reserved to the Commissioner.’” Frank v. Barnhart,

326 F.3d 618, 620 (5th Cir. 2003)(citing 20 C.F.R. § 404.1527(e)(1)). 

Unless the Commissioner gives a treating source’s opinion controlling weight, the

Commissioner will consider six factors in deciding the weight to give to any medical opinion. 20

C.F.R. § 404.1527(d). The Fifth Circuit held in Newton that “an ALJ is required to consider each

of the [six] factors before declining to give any weight to the opinions of the claimant’s treating

specialist.” Newton, 209 F.3d at 456. Thus, the ALJ is required to consider the six factors if he does

not give a treating source’s opinion controlling weight or if he declines to give the opinion of a

treating specialist any weight. Pursuant to Soc. Sec. Ruling 96-2p (July 2, 1996)(“SSR 96-2p”), and

20 CFR §§ 404.1527(a) and 416.927(a), “medical opinions” are opinions about the nature and

severity of an individual’s impairment(s) and are the only opinions that may be entitled to

controlling weight. The requirement that the ALJ discuss the six factors set forth in Newton and 20

C.F.R. § 404.1527(d) applies only to medical opinions and does not apply to conclusory statements

that a claimant is disabled. Frank, 326 F.3d at 620. 

Plaintiff argues that the ALJ failed to find any limitations imposed by her debilitating

headaches and ignored the evidence in the record. Plaintiff notes that the ALJ failed to incorporate

any such limitations into his RFC finding or into the hypothetical question posed to the VE. Plaintiff

also argues that the ALJ ignored the limitations imposed by her arthritis and carpal tunnel syndrome.

Plaintiff alleges that the limitations actually imposed by these impairments would necessarily impact

the availability of jobs, given that the jobs identified by the VE require extensive use of the hands

and fingers.

Plaintiff further notes that the ALJ failed to accept the extensive limitations noted by Drs.

William E. Bazzell and Robin Brey and failed to appropriately weigh and evaluate the opinions of

these doctors as required by Newton. She argues that the ALJ failed to discuss the relevant factors

 

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in determining not to give controlling weight to the opinions of her treating sources and failed to

give deference to these opinions even if not accorded controlling weight.

Plaintiff underwent a psychiatric examination on February 14, 2003. Tr. 269-71. Carlos

Escobar, M.D., the psychiatric consultative examiner, noted that Plaintiff reported having never

received any psychiatric treatment. Tr. 269. He noted that she denied any symptoms consistent with

panic, anxiety, or any episodes of depression. Id. He noted Plaintiff’s report of a history of

headaches, as well as asthma. Id. Dr. Escobar noted Plaintiff’s report of seeing friends daily, but

not leaving the apartment, using public transportation, or attending church. Tr. 270. He noted that

Plaintiff was fully alert and oriented to place, person, and time, with spontaneous and wellarticulated speech. Id. He noted that Plaintiff’s intelligence was in the borderline range, and she

could perform simple additions and subtractions, although she reported that she cannot spell well.

Id. Dr. Escobar noted no thought disorder, no reports of hallucinations, no paranoia, and no

compulsions or obsessions. Id. He noted that Plaintiff’s affect was constricted and mood was

described as “feeling tired.” Id. Dr. Escobar’s impression was dysthymic disorder, borderline

intellectual function with a full scale IQ of 75, and opined that Plaintiff had a GAF score of 55 at

that time. Tr. 271. 

Plaintiff was examined by John L. Read, M.D., an internal medicine consultative examiner,

on February 22, 2003. Tr. 272-78. Dr. Read noted Plaintiff’s report of severe headaches which last

two to three hours and are not relieved by medication. Tr. 273. He noted that Plaintiff’s speech,

cranial nerves, and motor function appeared normal upon examination. Tr. 276. He noted Plaintiff’s

report of being able to walk only one block at a time because of pain and fatigue, the ability to sit

for 15 or 20 minutes, to be “up and about” for less than one-half hour, and to stand still for about

15 minutes. Tr. 277. He also noted Plaintiff’s report of being able to lift eight pounds and handle

small objects, button clothing, and handle coins and keys, except on days when her fingers are

 

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bothering her. Id. He noted that Plaintiff was able to bend over and touch the floor, as well as

squat, without difficulty. Id. He noted that Plaintiff was able to walk well in tandem and fairly well

on her toes and heels. Id. Dr. Read also indicated that range of motion in all extremities was

satisfactory. Id.

Luis Rodriguez, M.D., Plaintiff’s treating physician, completed a form describing Plaintiff’s

functional capacity dated May 15, 2003. Tr. 305-08. Dr. Rodriguez noted that Plaintiff’s symptoms

included joint pain and lack of energy. Tr. 305. He opined that emotional factors contributed to the

severity of Plaintiff’s symptoms. Id. He opined that Plaintiff’s experience of pain would

“constantly” be severe enough to interfere with her attention and concentration. Id. Dr. Rodriguez

opined that lifting and carrying were not affected by Plaintiff’s impairments but also opined that

Plaintiff could frequently lift or carry eight pounds and could occasionally lift or carry up to 15

pounds. Tr. 306. He opined that Plaintiff could perform overhead lifting and noted no limitations

on reaching, fingering, pushing/pulling, handling, or feeling. Id. Dr. Rodriguez opined that Plaintiff

could stand/walk a total of two hours in an 8-hour workday, and could stand/walk continuously for

1⁄2 hour at time. Id. He opined that Plaintiff could sit a total of one hour in an 8-hour work day and

could do so continuously. Tr. 307. He indicated that Plaintiff develops low back pain and leg pain

after about 30 minutes to one hour. Id. Dr. Rodriguez indicated that Plaintiff should never climb

or crawl but could occasionally balance, stoop, crouch, and kneel. Id. He also opined that Plaintiff

could do work if she could alternate between sitting and standing and further opined that if the

restrictions noted were complied with, Plaintiff could work an 8-hour workday on an ongoing basis.

Id. Dr. Rodriguez finally noted that Plaintiff has “major depression” and was under the care of a

psychiatrist. Tr. 308.

Plaintiff received treatment from La Esperanza clinic. On August 3, 2001, her treatment

provider noted her report of epigastric pain, which was still present but less severe. Tr. 322.

 

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Plaintiff was referred for a GI consult. Id. A note from September 11, 2001, indicates that

Plaintiff’s epigastric pain resolved after she discontinued over-the-counter NSAID medications. Tr.

321. A progress note dated March 27, 2002, indicates Plaintiff’s complaint of headaches for which

she was prescribed Neurontin. Tr. 319. On April 30, 2002, Plaintiff reported that the Neurontin was

not helping with her headaches, and the dosage was increased. Tr. 318. On August 15, 2002,

Plaintiff reported that she was still having headaches. Tr. 317. Chronic headaches and a sinus

headache were noted on January 8, 2003, and her Neurontin had been reduced in dosage. Tr. 314.

On April 9, 2003, it was noted that Plaintiff continued to experience headaches, on a daily basis,

which sometimes lasted all day. Tr. 313. Plaintiff reported some relief with Lortab. Id. Plaintiff

reported that she was depressed, had crying spells, felt hopeless, had a poor appetite, had trouble

sleeping, and did not want to get up or get out of her house. Id. A progress note dated May 9, 2003,

indicates that Plaintiff’s headaches had resolved after her psychiatrist had prescribed medication

which provided good control of her depressive symptoms and headaches. Tr. 311. This progress

note also indicated that Plaintiff takes Lortab for generalized body aches at least twice daily, with

good pain control. Id. Plaintiff was seen for a four-month follow-up on September 9, 2003,

wherein she reported left upper quadrant abdominal pain. Tr. 379. Plaintiff reported pain on

November 13, 2003, and indicated that she had been diagnosed with nerve compression and was

taking Lortab, with good pain control. Tr. 377. Plaintiff was treated in December 2003 for a bug

bite that developed into cellulitis. Tr. 373-75. On February 27, 2004, Plaintiff was noted to have

no complaints. Tr. 371.

Plaintiff received psychiatric treatment from Dr. Bazzell. Tr. 356-68. Dr. Bazzell conducted

a diagnostic interview on April 9, 2003. Tr. 366-68. He noted that Plaintiff reported that she was

anxious at times, experienced panic daily, had poor concentration and poor appetite, experienced

fatigue all of the time, was irritable, and did not want to leave her apartment. Tr. 366. Upon mental

 

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status examination, he noted that Plaintiff was alert, coherent, and had goal directed speech. Tr. 367.

He noted no hallucinations, paranoid ideation, or thought disorder. Id. He noted that Plaintiff was

unable to do serial sevens or threes, spelled “world” backwards, had a fairly good fund of a

knowledge, with intact judgment and fair insight. Id. Dr. Bazzell’s diagnosis on Axis I was major

depressive disorder, and he opined that Plaintiff had a GAF score of 55. Tr. 368. On April 23,

2002, Dr. Bazzell indicated that Plaintiff’s concentration was poor and noted Plaintiff’s report of

watching television but not paying attention to it. Tr. 365. He noted that Plaintiff was in a good

mood on May 7, 2003, but still had poor concentration. Tr. 364. On June 4, 2003, Dr. Bazzell

indicated that Plaintiff’s concentration was diminished but had improved somewhat, and he noted

no side effects from Plaintiff’s medication. Tr. 362. However, Dr. Bazzell noted on November 17,

2003, that Plaintiff’s concentration was good. Tr. 357. He also noted that Plaintiff was now “fairly

active” and was going out more, although she was not working and was “awaiting disability.” Tr.

357. Dr. Bazzell opined on December 29, 2003, that Plaintiff’s concentration was good, Plaintiff’s

mood was good, there was no anxiety or panic, and Plaintiff was “still trying for disability.” Tr. 356.

Dr. Bazzell completed a mental residual functional capacity form on August 6, 2004. Tr.

428-32. He opined, by checkmark, that Plaintiff was limited in making simple, work-related

decisions; was seriously limited, but not precluded, from maintaining attention for 2-hour segments,

completing a normal work day and work week without interruptions from psychologically based

symptoms, and setting realistic goals or making independent plans; and was unable to meet

competitive standards of performing at a consistent pace without an unreasonable number and length

of rest periods, dealing with normal work stress, and dealing with the stress of semi-skilled and

skilled work. Tr. 430-31. Dr. Bazzell indicated that “depression makes the pain worse.” Tr. 431.

In short memoranda dated August 27, 2004, Dr. Bazzell indicated that Plaintiff’s diagnosis was

bipolar disorder. Tr. 465-66. 

 

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Plaintiff was seen by Dr. Brey as part of a clinical study on SLE. Dr. Brey completed a

residual functional capacity assessment form on May 6, 2004. Tr. 424-27. Dr. Brey noted that

Plaintiff’s symptoms included fatigue, memory loss, and pain. Tr. 424. He opined that emotional

factors did not contribute to the severity of Plaintiff’s symptoms. Id. He opined that Plaintiff’s

experience of pain would frequently be severe enough to interfere with her attention and

concentration. Id. He indicated that Plaintiff could lift and carry up to five pounds, that her ability

to reach and feel was moderately affected by her impairment, and that her ability to push/pull was

severely affected by her impairment. Tr. 425. Dr. Brey indicated that Plaintiff could stand/walk up

to two hours a day in an 8-hour work day and could do so continuously. Id. He further opined that

she could sit up to four hours in an 8-hour work day, sitting up to two hours continuously. Tr. 426.

Dr. Brey indicated that Plaintiff should never kneel or crawl and could occasionally climb, balance,

stoop, or crouch. Id. Dr. Brey opined that Plaintiff could not, even if such restrictions were

followed, work an 8-hour work day on an ongoing basis. Id.

Dr. Brey completed a second questionnaire on August 10, 2004. Tr. 451-59. He noted that

Plaintiff’s symptoms included pain, memory problems, concentration problems, and fatigue. Tr.

451. He described her pain as moderate to severe episodic joint pain. Id. He opined that Plaintiff

was “incapable of even ‘low stress’ jobs.” Tr. 452. Dr. Brey also opined that Plaintiff could walk

five blocks, could sit for a total of two hours in an 8-hour work day and do so continuously; could

sit and stand/walk about two hours in an 8-hour work day; required unscheduled 30-minutes breaks

every 10 minutes; and needed to be able to alternate between sitting and standing. Tr. 452-54. He

opined that Plaintiff could occasionally lift less than 10 pounds and should never twist, stoop, squat,

climb ladders, or climb stairs. Tr. 454. Dr. Brey opined that Plaintiff had significant limitations

with reaching, handling, and fingering. Id. He also opined that Plaintiff could finger,

grasp/twist/turn the hands, and reach overhead with the arms for 5% of the workday. Id. Dr. Brey

 

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also indicated that Plaintiff should avoid concentrated exposure to extreme heat and cold, humidity,

wetness, smoke, perfumes, soldering flames, solvents, fumes, dust, chemicals, and other unspecified

irritants. Id. He noted that Plaintiff would likely have “good days” and bad days” and would likely

miss more than four days per month of work because of her impairments. Tr. 455. He also indicated

that Plaintiff experiences “cognitive dysfunction.” Id.

In another questionnaire also dated August 10, 2004, Dr. Brey opined that Plaintiff must

walk every 60 minutes during an 8-hour work day for a 10-minute period. Tr. 458. He opined that

Plaintiff would need to take 30-minute breaks every two hours. Id. He completed a mental residual

functional capacity assessment form and indicated by checkmark that Plaintiff was markedly limited

in her ability to remember locations and work-like procedures, the ability to understand and

remember detailed instructions, the ability to carry out detailed instructions, the ability to complete

a normal work day and work week without interruptions from psychologicaly based symptoms, and

the ability to use public transportation. Tr. 461-62. Dr. Brey indicated that Plaintiff was moderately

limited in all other functional areas and had experienced one episode of decompensation. Tr. 461-

63. He indicated that this assessment was based upon neuropsychological testing of Plaintiff which

indicated moderate to severe defects. Tr. 463.

Notes from the SLE study indicate that on November 27, 2001, Plaintiff reported having

headaches every day. Tr. 632. On March 9, 2002, Plaintiff reported that her headaches had

worsened and that she still experienced them every day. Tr. 623. Plaintiff reported on February 15,

2003, that her daily headaches were severe and had gotten worse. Tr. 616. By July 12, 2003,

Plaintiff reported by she experienced two or three headaches per day. Tr. 608. Plaintiff again

reported daily headaches on April 17, 2004. Tr. 592. Each of these reports indicated that these

headaches interfered with Plaintiff’s daily activities. Tr. 592, 608, 616, 623, 632. Cognitive

impairment on was also noted on each of these dates. Tr. 553, 562, 566, 570, 574.

 

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Notes of the November 27, 2001, study exam indicate that Plaintiff’s intellectual or cognitive

condition was moderately impaired – interfering with daily activities, but only mildly. Tr. 550.

Plaintiff’s station and gait, sensory exam, cerebellar exam, and certain items of the motor exam were

noted to be normal. Tr. 545-49. Plaintiff’s upper extremities were noted to be normal. Tr. 545.

On March 9, 2002, Plaintiff’s intellectual/cognitive function was noted to be mildly impaired

– constituting a nuisance only and not interfering with daily activities. Tr. 540. All other exams,

except for the absence of drift and fix, were normal. Tr. 534-39. The February 15, 2003, notes

indicate that Plaintiff’s intellectual/cognitive capacity was moderately impaired. Tr. 531. Plaintiff

was noted to be mildly impaired in this area on July 12, 2003, and moderately impaired on

November 8, 2003 Tr. 510, 520.

The record further demonstrates that Plaintiff was treated for bilateral carpel tunnel

syndrome and underwent left and right carpal tunnel release. Tr. 438-47.

The record demonstrates that the ALJ declined to accept the opinion of Dr. Brey, the

neurologist who treated her as a part of the SLE study, insofar as he opined that Plaintiff was

completely disabled. Tr. 22. The ALJ found that Dr. Brey’s conclusions were “completely

uncorroborated by any objective clinical evidence contained in the record” and further noted that

there was no evidence indicating that Dr. Brey had actually documented any observed deficits. Id.

The ALJ also declined to accept the opinion of Dr. Bazzell as to Plaintiff’s ability to perform

the mental requirements of work activity, finding that such opinions were wholly unsupported by

any objective clinical evidence, including the treating psychiatrist’s own progress notes. Tr. 20.

Plaintiff argues that the ALJ erred by failing to incorporate any limitations based on her

headaches and on her ability to use her hands into the RFC assessment and into the hypothetical

question posed to the VE. She further argues that the ALJ failed to appropriately consider her

testimony and her subjective allegations of pain.

 

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With regard to Plaintiff’s headaches, the record demonstrates that she repeatedly reported

them to her treatment providers. Plaintiff reported chronic headaches, as well as sinus headaches,

to her treating physicians at La Esperanza clinic on numerous occasions and reported no relief from

Neurontin and some relief with Lortab. Tr. 313-14, 317-19. Plaintiff reported severe headaches,

which she experienced daily and sometimes two or three times a day, which interfered with her daily

activities as part of the SLE study and her treatment by Dr. Brey, from November 27, 2001, through

April 17, 2004. Tr. 592, 608, 616, 623, 632. Plaintiff testified that she had headaches four or five

times a week, which required her to go to bed about three times a week. Tr. 664. She testified that

she lies down without lights, noise, or television when she has such headaches. Id. Dr. Read, the

consultative medical examiner, noted Plaintiff’s report of severe headaches which last two to three

hours and which are not relieved by medication. Tr. 273.

While a progress note dated May 9, 2003, did indicate that Plaintiff’s headaches had

resolved, after her psychiatrist had prescribed her medication which provided good control of her

depressive symptoms and headaches, Dr. Bazzell’s records further indicate that Plaintiff’s

medications were adjusted and changed thereafter. Tr. 359-63. Plaintiff’s consistently continued

to report her headaches to Dr. Brey as part of the SLE study. Tr. 592, 608, 616, 623, 632.

In his opinion the ALJ particularly pointed to the progress note indicating that she had “good

control” of her headaches and depressive symptoms. Tr. 19. He also noted that Plaintiff had given

different estimates of the frequency of her headaches and ultimately rejected her reports of her

headaches throughout the SLE study and as set forth in her testimony. 

 The term “residual functional capacity assessment” describes an adjudicator’s finding about

the ability of an individual to perform work-related activities. Soc. Sec. Ruling 96-5p (July 2,

1996)(“SSR 96-5p”). The RFC assessment is based upon “all of the relevant evidence in the case

record,” including, but not limited to, medical history, medical signs, and laboratory findings; the

 

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effects of treatment; and reports of daily activities, lay evidence, recorded observations, medical

source statements, and work evaluations. Soc. Sec. Ruling 96-8p (July 2, 1996)(“SSR

96-8p”)(emphasis in original). The ALJ is responsible for determining a claimant’s RFC. Ripley

v. Chater, 67 F.3d 552, 557 (5th Cir. 1995). In making the RFC assessment and in determining the

limitations imposed by a claimant’s impairment(s), the ALJ is instructed to consider the entire

record. Soc. Sec. Ruling 96-7p (July 2, 1996)(“SSR 96-8p”. 

The claimant has the burden to prove that she is disabled within the meaning of the Social

Security Act. Fraga v. Bowen, 810 F.2d 1296, 1301 (5th Cir.1987). A physical or mental

impairment is in turn defined as “an impairment that results from anatomical, physiological, or

psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory

diagnostic techniques.” 42 U.S.C. § 423(d)(3). The existence of an impairment does not in itself

establish disability; a claimant is disabled only if he or she is “incapable of engaging in any

substantial gainful activity.” Milam v. Bowen, 782 F.2d 1284, 1286 (5th Cir.1986). 

Moreover, the ALJ is not required to incorporate limitations into the hypothetical questions

presented to the VE that he did not find to be supported in the record. See Morris v. Bowen, 864

F.2d 333, 336 (5th Cir. 1988). As noted, the ALJ did not find that Plaintiff’s headaches imposed

any limitations on her ability to perform work activity and essentially rejected Plaintiff’s testimony

and subjective allegations and descriptions of her headaches and the limitations they impose, as well

as such notations in the medical record. Indeed, the ALJ rejected almost all of the limitations noted

by Plaintiff’s treatment providers, accepting only Dr. Rodriguez’ statement that if all of the

limitations indicated were complied with, Plaintiff could perform work activity during an 8-hour

workday on an ongoing basis. Tr. 20, 307-08. In his opinion the ALJ characterized Dr. Rodriguez’

statement as providing that Plaintiff was able to sustain full time work activity, providing she was

able to alternate between sitting and standing, completely ignoring the statement directly following

 

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– which indicated that “[i]f all of the above restrictions, if any, are complied with,” Plaintiff could

work an 8-hour day on a continuing basis. Tr. 307 (emphasis supplied). Dr. Rodriguez opined that

Plaintiff could sit only one hour in an 8-hour work day and could stand two hours in an 8-hour work

day. He also noted that Plaintiff’s pain would constantly interfere with her concentration, and he

indicated numerous postural limitations. Tr. 306-07. The ALJ noted in his opinion that sedentary

jobs are defined as those which involve mostly sitting. Tr. 24. Indeed, the regulations provide that:

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.

20 CFR § 404.1567(a). Although the ALJ indicates that he accepted, in part, those limitations noted

by Dr. Rodriguez, he effectively rejected all of the limitations noted by this treating physician, given

that Dr. Rodriguez specifically opined that Plaintiff could sit a total of one hour in an 8-hour

workday, a limitation at odds with the definition of sedentary work. 

The ALJ also rejected the opinions of Dr. Brey and Dr. Bazzell as to the limitations imposed

by Plaintiff’s impairments. While the ALJ indicated that he rejected Dr. Bazzell’s opinion insofar

as he “alleged disability” in the form he completed, the ALJ did not incorporate any of the specific

functional limitations noted by Dr. Bazzell into his RFC finding. Tr. 21, 430-31. The ALJ’s

determination that Plaintiff could perform “simple, repetitive sedentary work activity which does

not require the exercise of independent judgment” does not address or reflect Dr. Bazzell’s opinion

that Plaintiff was seriously limited, but not precluded, from maintaining attention for 2-hour

segments, completing a normal workday and workweek without interruptions from psychologically

based symptoms, and setting realistic goals; and was unable to meet competitive standards of

performing at a consistent pace without an unreasonable number and length of rest periods, dealing

 

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with normal work stress, and dealing with the stress of semi-skilled and skilled work. Tr. 430-31.

 The ALJ also essentially rejected all of the limitations noted by Dr. Brey. 

“The ALJ as factfinder has the sole responsibility for weighing the evidence and may choose

whichever physician’s diagnosis is most supported by the record.” 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. However, in weighing the evidence, the ALJ is not free to reject the uncontroverted opinions 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, 326 F.3d at 622 (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).

Clearly, questions of credibility are the responsibility of the ALJ to resolve. Masterson, 309

F.3d at 272. The ALJ was entitled to weigh the opinions of the treating physicians and even to reject

them. However, in rejecting Dr. Bazzell’s opinion, the ALJ noted that his treating records reflected

improvement in Plaintiff’s symptoms with medication. Tr. 21. A review of the record indicates that

Dr. Bazzell’s progress notes indicate that Plaintiff’s symptoms of poor concentration and mood did

improve at certain occasions. Although the ALJ purported to reject the opinions of Dr. Rodriguez,

Dr. Bazzell, and Dr. Brey only insofar as they indicated that Plaintiff was “disabled,” a review of

these opinions indicate that the ALJ in fact rejected their medical opinions as to the specific

limitations imposed by Plaintiff’s impairments, not conclusory, non-medical opinions as to

disability. The ALJ ultimately rejected these opinions, without discussing the factors set forth in

Newton. 

 

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The ALJ further rejected Plaintiff’s subjective allegations and her testimony regarding the

limitations imposed by her impairments and also rejected the opinions of the state agency medical

consultants. Tr. 24. A careful review of the record fails to uncover substantial evidence to support

the ALJ’s determination that Plaintiff retains the physical RFC to perform the exertional and

nonexertional requirements of simple, repetitive sedentary level work activity which does not

require the exercise of independent judgment.

However, there is substantial evidence of record indicating that Plaintiff’s headaches

imposed some limitation on her ability to perform work activity. There is also substantial evidence

indicating that Plaintiff experienced some functional limitation in the use of her hands because of

her arthritis or her status post bilateral carpal tunnel release. Plaintiff’s testimony that she

experienced problems using her hands and gripping is consistent with her reports to Dr. Brey, with

Dr. Brey’s medical opinions as to the limitations imposed by her impairments, and with the opinion

of Dr. Rodriguez. The only limitation that the ALJ incorporated into his RFC assessment was a

restriction to simple, repetitive work which did not require the exercise of independent judgment.

 A review of the record as a whole demonstrates that the ALJ failed to properly weigh and consider

the opinions of Plaintiff’s treating physicians, failed to appropriately consider Plaintiff’s testimony

and her subjective allegations as to the limitations imposed by her impairments, and failed to base

his RFC finding upon substantial evidence. 

I find that the ALJ opinion was not supported by substantial evidence in the record. Remand

in this matter is required to allow the ALJ to appropriately consider and weigh the opinions of

Plaintiff’s treating physicians and Plaintiff’s subjective allegations and testimony. Upon remand,

further consideration of the evidence in the record as to the limitations imposed by Plaintiff’s

impairments is necessary.

 

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Because the RFC finding is not supported by substantial evidence, the hypothetical posed

to the VE is similarly flawed. The ALJ is not required to incorporate limitations into the

hypothetical questions presented to the VE that he did not find to be supported in the record. See

Morris, 864 F.2d at 336. The hypothetical presented to the VE need only reasonably incorporate the

limitations accepted by the ALJ. See Bowling v. Shalala, 36 F.3d 431, 435-36 (no reversible error

where the hypothetical presented reasonably incorporated the limitations accepted by the ALJ and

claimant’s representative had the opportunity to present questions incorporating additional

limitations). Upon remand and after determining Plaintiff’s RFC, the ALJ will have the opportunity

to present a hypothetical question to the VE which incorporates limitations which are accepted by

the ALJ and which reflect the RFC finding. 

Plaintiff further argues that the ALJ erred by failing to determine whether she could maintain

or sustain work pursuant to Watson, 288 F.3d at 218, and Singletary v. Bowen, 798 F.2d 818, 822

(5th Cir. 1986). In Singletary, the Fifth Circuit noted that “[a] finding that a claimant is able to

engage in substantial gainful activity requires more than a simple determination that the claimant

can find employment and that he can physically perform certain jobs; it also requires a determination

that the claimant can hold whatever job he finds for a significant period of time.” Singletary, 798

F.2d at 822. The requirement for a finding of the ability to maintain employment is not restricted

to instances where non-exertional impairments are present. See Watson, 288 F.3d at 217-18.

In Watson, the claimant had degenerative disk disease, which caused the loss of movement

in his legs every few weeks and too much pain to work every few weeks. Watson, 288 F.3d. at 218.

In Wingo, the ALJ found that the claimant retained the residual functional capacity to perform the

full range of work at the sedentary level and applied the Medical-Vocational Guidelines to direct

a finding of “not disabled.” Wingo v. Bowen, 852 F.2d 827, 829 (5th Cir. 1998). The ALJ in Wingo

did not consider medical evidence about several of the claimant’s impairments, as well as evidence

 

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that she was often unable to leave her bed for days at a time. Id. Plaintiff argues that because of her

severe headaches and mental problems, like the claimant in Singletary, she is unable to maintain

employment. 

In the recent case of Perez v. Barnhart, the Fifth Circuit clarified that “nothing in Watson

suggests that the ALJ must make a specific finding regarding the claimant's ability to maintain

employment in every case.” Perez v. Barnhart, 415 F.3d. 457, 465 (5th Cir. 2005)(comparing Frank

with Watson). Rather, a finding of ability to maintain employment is only required in a “situation

in which, by its nature, the claimant’s physical ailment waxes and wanes in its manifestation of

disabling symptoms.” Id. The court noted that “[w]ithout such a showing, the claimant's ability to

maintain employment is subsumed in the RFC determination.” Id. 

While the evidence in this case clearly demonstrates that Plaintiff’s headaches are, at times,

worse, the evidence does not indicate that the claimant’s physical ailment waxes and wanes in its

manifestation of disabling symptoms.” Id. Rather, the evidence indicates that Plaintiff’s headaches

and other impairments impose fairly regular limitations, as opposed to periodic disabling episodes.

 Plaintiff’s testimony indicates a general worsening of overall condition. Having already found that

this matter should be remanded for further consideration of the limitations imposed by all of

Plaintiff’s impairments, including her headaches, I decline to further address this issue. The ALJ

may determine, upon further consideration, that an examination of this issue is warranted. 

IV. CONCLUSION

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

recommends that the United States District Judge reverse the Commissioner’s decision and remand

this matter for further proceedings in accordance with this recommendation.

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

 

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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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