IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

ABILENE DIVISION

§

CHARLES M. WOOD, §

§

 Plaintiff, §

§

vs. § Civil Action No. 1:05-CV-0131-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 July 8, 2005, for judicial

review of the administrative decision of the Commissioner of Social Security denying Plaintiff’s

application for a period of disability and disability insurance benefits under Title II of the Social

Security Act. Plaintiff filed a brief in support of his complaint on January 9, 2006, and Defendant

filed her brief on February 6, 2006. The United States District Judge, pursuant to 28 U.S.C.

§ 636(b), referred this matter to the United States Magistrate Judge for report and recommendation,

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

considered the pleadings, the briefs, and the administrative record, recommends that the United

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

I. STATEMENT OF THE CASE

Plaintiff filed an application for a period of disability and disability insurance benefits on

January 30, 2003, alleging disability beginning April 1, 2001. Tr. 15. Plaintiff’s application was

denied initially and upon reconsideration. Tr. 56-59, 62-65. Plaintiff filed a Request for Hearing

 

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1 The ALJ found that Plaintiff’s part-time work through April 2002 did not constitute

substantial gainful activity.

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by Administrative Law Judge on October 1, 2003, and this matter came for hearing before the

Administrative Law Judge (“ALJ”) on June 24, 2004. Tr. 15, 24-46, 55. Plaintiff, represented by

an attorney, testified in his own behalf. Tr. 27-42. Carol Bennett, a vocational expert (“VE”),

appeared and testified as well. Tr. 42-45. The ALJ issued a decision unfavorable to Plaintiff on

July 16, 2004. Tr. 12-22. 

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

disability within the meaning of the Social Security Act. Tr. 15. He found that: Plaintiff met the

disability insured status requirements on April 1, 2001, through the date of his decision and Plaintiff

had not engaged in substantial gainful activity at any time since April 1, 2001.1

 Tr. 16, 20. Plaintiff

has “severe” impairments, including multiple sclerosis (“MS”); mood disorder secondary to MS,

with depressive features; degenerative changes in his great left toe; and obesity. Tr. 20. 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.

Tr. 20-21. Therefore, the ALJ was required to determine whether Plaintiff retained the residual

functional capacity (“RFC”) to perform his past relevant work or other work existing in the national

economy.

The ALJ discussed Plaintiff’s diagnosis of MS and his symptoms, such as fatigue,

hypersomnia, an altered gait, and slurred speech, which manifested about a year before the formal

diagnosis. Tr. 16. The ALJ noted Plaintiff’s care under a neurologist, as well as the results of an

MRI and an EEG, which confirmed the diagnosis. Id. The ALJ noted Plaintiff’s sypmtomology

included weakness, fatigue, sensory abnormalities, and difficulty speaking. Id. The ALJ noted

Plaintiff’s continued care for MS and for depression. Id.

 

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The ALJ noted Plaintiff’s testimony of gradual deterioration due to his MS and a worsening

of his symptoms. Tr. 16-17. He noted Plaintiff’s report of difficulty with tasks requiring manual

dexterity or grip strength and his reports of problems with balance and with sitting for extended

periods. Tr. 17. 

The ALJ noted that Plaintiff’s neurologist indicated that Plaintiff’s coordination, gait, and

balance had deteriorated by February 27, 2002, although a March 2002 MRI indicated that the

plaques in his brain had not progressed. Id. The ALJ noted Plaintiff’s use of a cane, his reduced

strength in the lower extremities, his speech problems, and his continued fatigue. Id. He also noted

the findings of a consultative examiner, who noted that Plaintiff’s strength was preserved, he did not

have reproducible fatigue, and he was able to squat and grip at least 10 times repeatedly. Id. The

ALJ also noted that he had considered the opinions of the state agency medical consultants, who

opined that Plaintiff retained the RFC for a limited range of work at the sedentary exertional level.

Id. 

The ALJ indicated that Plaintiff had medically determinable impairments capable of

producing the subjective complaints alleged. Tr. 16. The ALJ found, however, that Plaintiff’s

subjective complaints were exaggerated. Tr. 17.

The ALJ found that Plaintiff could not return to his past relevant work as a medical service

technician. Tr. 19, 21. He noted that Plaintiff was considered a “younger” person with a high

school education. Tr. 21-22; see 20 C.F.R. §§ 416.963, 416.964. 

 The ALJ found that Plaintiff retained the RFC to perform the exertional requirements of

sedentary work activity, limited to jobs that do not require: more than occasional stooping or

crouching; balancing, crawling, kneeling, or climbing scaffolds, ladders, and ropes; working at

unguarded heights or near unguarded hazardous mechanical equipment; sitting without the

opportunity to occasionally stand in addition to a lunch and the normal legal breaks during the work

 

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day; walking more than one hundred yards at one time without the opportunity to sit; standing more

than ten minutes at one time without the opportunity to sit; standing/walking for more than one hour

out of an 8-hour work day; pushing, pulling, or performing extended reaching repetitiously with the

upper extremities more than occasionally; handling or fingering objects more than frequently; and

speaking more than incidentally with co-workers and supervisors. Tr. 19-21. Additionally, the ALJ

found that Plaintiff is limited to jobs that do not require: maintaining fixed concentration and

attention for periods of longer than 20 minutes without the opportunity to briefly refocus for a

minute or two and come back to fixed concentration; working with more than mildly decreased

ability to maintain pace; performing tasks at more than lower-end detailed instructions; and

requiring more than superficial interaction with the public. Tr. 20-21. Having found that Plaintiff

could not perform the full range of sedentary work, the ALJ turned to the testimony of the VE in

determining whether Plaintiff was capable of making a vocational adjustment to other work despite

his severe impairments. Tr. 20-22. The ALJ relied upon the testimony of the VE who indicated that

a hypothetical person of Plaintiff’s age, with Plaintiff’s RFC and vocational history, could perform

work which exists in the national economy, including the jobs of inspector, with 42,000 jobs

nationally; and grader/sorter, with 30,000 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. 20-22. 

Plaintiff submitted a Request for Review of Hearing Decision/Order on September 17, 2004.

Tr. 10-11, 343. After granting a 25-day extension for the presentation of additional evidence, the

Appeals Council issued its opinion on May 13, 2005, indicating that although it had considered the

contentions raised in Plaintiff’s Request for Review, it nevertheless concluded that there was no

basis for changing the ALJ’s decision and denied Plaintiff’s request. Tr. 4-9. The ALJ’s decision,

therefore, became the final decision of the Commissioner.

 

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On July 8, 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

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;

 

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

because he retained the ability to perform work in the national economy. Tr. 20-22.

III. DISCUSSION

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

substantial evidence because the ALJ failed to separately consider and reach a finding as to

Plaintiff’s ability to maintain employment for a significant period of time.

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).

Plaintiff argues that the ALJ erred in failing to determine whether he had the ability to

maintain employment, 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. Id. at 218. In Wingo, the

ALJ found that Plaintiff 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

 

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medical evidence about several of the claimant’s impairments, as well as evidence that she was often

unable to leave her bed for days at a time. Id. 

Plaintiff indicated in an Activities of Daily Living Questionnaire that on occasional days he

may feel that he did not have the strength/energy and his condition did affect his bathing, hair care,

or dressing. Tr. 132. Plaintiff’s treating neurologist, R. K. Anderson, Jr., MD, noted on August 31,

2001, that Plaintiff was having difficulty with his legs feeling like they are very heavy and

occasional burning and cold sensations in his esophageal/substernal area. Tr. 151. He also noted

Plaintiff’s report of feeling rather fatigued sometimes and opined that there was a little progression

in Plaintiff’s condition. Id. Dr. Anderson noted on October 11, 2001, that Plaintiff had retired from

the military and was working in the evening part time, while helping with his young child at home.

Id. Plaintiff reported that he was still quite tired and mornings were generally his best time. Id. Dr.

Anderson noted Plaintiff’s report of experiencing some unusual sensations, although he was no

longer having the burning and cold sensations previously reported. Tr. 150. On February 27, 2001,

Dr. Anderson noted that Plaintiff seemed to be getting slowly worse and reported some problems

with swallowing and his memory, as well as some worsening of coordination, gait, and balance. Id.

Dr. Anderson noted on March 14, 2002, that Plaintiff was getting a little weaker and tired easily,

experienced a lot of fatigue, and was getting a hoarse voice. Tr. 149.

A progress note dated August 6, 2002, indicates Plaintiff’s complaints of hoarseness and

some dysphagia. Tr. 331. Plaintiff unable to walk more than 100 feet at a time because of his

instability from MS. Id. Plaintiff’s symptoms may fluctuate depending on the time of day and on

different days. Id. A progress note dated October 1, 2002, indicates Plaintiff’s report of increasing

fatigue. Tr. 324. 

Plaintiff reported to his family care provider on October 23, 2002, complaining of an

increase in left extremity weakness and balance difficulties. Tr. 280. Plaintiff was referred to a

 

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neurologist. Id. Plaintiff was examined by Aaron B. Koonce, M.D., a neurologist, on October 31,

2002. Tr. 274. Dr. Koonce noted Plaintiff’s report of increasing gait and balancing difficulties,

shortness of breath with even minimal activities, daily fatigue and insomnia, and increasing amounts

of emotional agitation. Tr. Id. Dr. Koonce noted Plaintiff’s pre-existing diagnosis of MS but

indicated his opinion that it was clinically probable but uncertain if it is a relapsing-remitting type

or a progressive type. Tr. 275. On December 18, 2002, Plaintiff’s neurologist indicated that

Plaintiff continued to have balance and gait problems, as well as increasing dysphagia and

continuing fatigue. Tr. 270. A March 5, 2003, progress note indicates Plaintiff’s report of becoming

easily fatigued and short of breath after ambulating short distances, using a four-pronged cane. Tr.

261. Plaintiff reported increasing depression after a death in the family and cramps in the hands and

feet on April 16, 2003. Tr. 257. Plaintiff’s care provider noted on April 23, 2003, that Plaintiff

reported some improvement with daytime fatigue. Tr. 254. He also reported continuing ataxia,

weakness in the arms and legs, painful cramps at night, depressive symptoms, being overweight, and

pruritis on the right foot. Id. Plaintiff was prescribed medications. Tr. 255. Plaintiff was using a

four-pronged cane. Id. Dr. Koonce opined that Plaintiff’s condition had deteriorated over the past

year and changed his medication from Copaxone to Rebif. Id. A progress note dated July 11, 2003,

noted that Plaintiff was tolerating the effects of Rebif, one of his medications, and that another

medication had begun to alleviate his nocturnal leg crams. Tr. 246. Plaintiff reported having some

stiffness and jerkiness of the legs during the day, which had caused him to fall. Id. 

Plaintiff underwent a consultative examination on April 18, 2003. Tr. 308-10. The

consultative examiner noted: Plaintiff used a quad cane but needed no assistive device when

ambulating up to 50 feet. Tr. 309. He was walking with a mildly unsteady, mildly ataxic gait but

did not lurch. Id. Grip strength and dexterity were preserved, and range of motion was within

normal limits. Tr. 310. Plaintiff had moderate difficulty squatting but could squat at least 10 times

 

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and gripped the examiner’s fingers at least 10 times without apparent fatigue. Id. Motor, reflex, and

sensory findings were otherwise within normal limits. Id. 

A progress note dated March 23, 2004, for routine follow-up indicates that Plaintiff wanted

to have a social security form filled out. Tr. 316. Plaintiff offerd no significant complaints. Id.

Plaintiff reported overall weakness, especially in the legs. Id. Plaintiff’s treating physician

indicated her diagnosis of MS, established, gradually worsening; hyperlipidema, established, same;

and depression, stable. Tr. 317. 

Plaintiff alleges that: The record demonstrates that his physical ailment does wax and wane

in its manifestation of disabling symptoms and the record demonstrates his continuing problems with

fatigue, weakness, and ataxia. Plaintiff’s depression has waxed and waned.

Clearly, the record demonstrates Plaintiff’s complaints of fatigue, ataxia, and weakness in

his legs. The record also includes a note indicating that Plaintiff feels best in the morning and feels

worse when tired. Plaintiff also alleges that he has bad days. However, in the instant matter, the

record does not contain evidence demonstrating that Plaintiff’s impairment places him in a situation

in which “by its nature, [his] physical ailment waxes and wanes in its manifestation of disabling

symptoms.” Frank v. Barnhart, 326 F.3d 618, 619 (5th Cir. 2003). The claimant in Singletary was

noted to be an individual who had “been hospitalized repeatedly over a long period of time for

psychiatric problems,” who had transient psychotic episodes, and who led a choatic life. See

Singletary, 798 F.2d at 823. Plaintiff’s mental and physical impairments have not similarly

incapacitated him, with disabling symptoms waxing and waning in their effect. In his opinion the

ALJ limited Plaintiff to sedentary work activity, limited to jobs that do not require: more than

occasional stooping or crouching; balancing, crawling, kneeling, or climbing scaffolds, ladders, and

ropes; working at unguarded heights or near unguarded hazardous mechanical equipment; sitting

without the opportunity to occasionally stand in addition to a lunch and the normal legal breaks

 

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during the work day; walking more than one hundred yards at one time without the opportunity to

sit; standing more than ten minutes at one time without the opportunity to sit; standing/walking for

more than one hour out of an 8-hour work day; pushing, pulling, or performing extended reaching

repetitiously with the upper extremities more than occasionally; handling or fingering objects more

than frequently; and speaking more than incidentally with co-workers and supervisors. Tr. 19-21.

These limitations are consistent with Plaintiff’s testimony, his reports of his daily activities, and

evidence in the medical record. See, e.g., Tr. 32, 35, 132, 149. While the record indicates

Plaintiff’s reports of gradually worsening physical symptoms as a result of his impairments, it does

not demonstrate that Plaintiff experiences disabling symptoms which wax and wane. Moreover, the

record indicates that Plaintiff’s depression is stable. Tr. 317. Plaintiff argues that he has been noted

to have problems with slurred speech and has also been noted to be dysarthric and dysphonic.

Indeed, Plaintiff’s complaints of problems with speaking and with his voice were symptoms which

in part led to being diagnosed with MS. However, the ALJ incorporated a limitation on speech into

his RFC assessment, which is consistent with Plaintiff’s complaints and with notations in the

medical record, indicating his problems with hoarseness with extended speech. “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. The ALJ

properly exercised his responsibility as factfinder in weighing the evidence and in choosing to

incorporate limitations into his RFC assessment that were most supported by the record. Muse, 925

F.2d at 790.

 

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 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 “without such a showing, the claimant's ability to

maintain employment is subsumed in the RFC determination.” Id. The issue of maintaining

employment was not raised by the facts in this case.

The record demonstrates that the ALJ did not “pick and choose” only the evidence that

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

appropriately considered the record as a whole. Id. The ALJ noted and discussed Plaintiff’s

complaints of weakness and fatigue, and his opinion demonstrates that he considered such

complaints in making his RFC assessment, which is supported by substantial evidence in the record.

IV. CONCLUSION

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

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

the Plaintiff’s complaint with prejudice.

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

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

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

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

within 11 days after being served with a copy. A party filing objections must specifically identify

those findings, conclusions, or recommendation to which objections are being made. The District

Court need not consider frivolous, conclusory, or general objections. A party’s failure to file such

 

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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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