1

On February 12, 2007, Michael J. Astrue was sworn in as the Commissioner of Social Security. Pursuant to Rule

25(d)(1) of the Federal Rules of Civil Procedure, Mr. Astrue is substituted as the defendant in this suit.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

GLORIA J. BATES, §

 §

Plaintiff, §

 §

v. § 2:05-CV-0269

 §

MICHAEL J. ASTRUE,1 §

Commissioner of Social Security, §

 §

Defendant. §

REPORT AND RECOMMENDATION TO AFFIRM

THE DECISION OF THE COMMISSIONER

Plaintiff GLORIA J. BATES brings this cause of action pursuant to 42 U.S.C. § 405(g),

seeking review of a final decision by the defendant, MICHAEL J. ASTRUE (Commissioner),

Commissioner of Social Security, denying plaintiff’s application for disability insurance benefits

and supplemental security income (SSI) benefits. Both parties have filed briefs in this cause. 

For the reasons hereinafter expressed, the undersigned United States Magistrate Judge

recommends the Commissioner’s decision finding the plaintiff not disabled and not entitled to

benefits be AFFIRMED.

I.

THE RECORD

On July 21, 2003, plaintiff applied for disability insurance benefits, (Transcript [hereafter

Tr.] 69), and on July 22, 2003, plaintiff applied for SSI benefits. (Tr. 371). In her applications,

plaintiff alleges she has been unable to work since March 1, 2003 due to fibromyalgia,

 

 

FILED

SEPTEMBER 8, 2008

 

 

 

 

 

 KAREN S. MITCHELL

CLERK, U.S. DISTRICT COURT 
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depression, and a back condition. (Tr. 69, 79, 371). The Social Security Administration denied

benefits initially and upon reconsideration.

An administrative hearing was held before Administrative Law Judge (ALJ) Larry

Johnson on November 15, 2004. (Tr. 18, 32-48). Plaintiff, who was represented by counsel,

testified at the hearing. (Tr. 36-47). On February 25, 2005, the ALJ rendered an unfavorable

decision, finding plaintiff not disabled at Step 5 of the five-step sequential analysis and,

therefore, not entitled to disability benefits. (Tr. 19). At the time of the administrative hearing,

plaintiff was 44 years old with a high school education and past relevant work experience as a

housekeeper and a home health aide. (Tr. 20, 24).

In his decision, the ALJ found that plaintiff had not engaged in any substantial gainful

activity since her alleged onset date and that plaintiff suffered from rheumatoid arthritis, an

impairment that was severe. (Tr. 19). However, the ALJ found that plaintiff’s impairment did

not meet or equal one of the listings found in Appendix 1, Subpart P, Regulations No. 4, and

therefore, plaintiff was not entitled to a presumptive finding of disability. (Tr. 20). After

recounting plaintiff’s hearing testimony and reviewing the medical records, the ALJ found that

plaintiff did not retain the ability to perform her past relevant work. (Tr. 23). The ALJ based

this finding on his assessing plaintiff as retaining a residual functional capacity (RFC) for

sedentary work. (Tr. 22). Utilizing the Medical-Vocational Guidelines (also known as the

“Grids”), located in Part 404, Subpart P, Appendix 2 of the Regulations, the ALJ found that a

ruling of “not disabled” was directed, given plaintiff’s age, education, and RFC for sedentary

work. (Tr. 23). Plaintiff requested review of the ALJ’s decision and on August 19, 2005, the

Appeals Council issued its order denying plaintiff’s request for review. (Tr. 6-8). Consequently,
\SS\R&R\BATES-269.AFF-GRID:3 3

the determination of the ALJ became the final decision of the Commissioner.

II.

STANDARD OF REVIEW

In reviewing disability determinations by the Commissioner, this Court’s role is limited

to determining whether substantial evidence exists in the record, considered as a whole, to

support the Commissioner’s factual findings and whether any errors of law were made. 

Anderson v. Sullivan, 887 F.2d 630, 633 (5th Cir. 1989). Substantial evidence is “such relevant

evidence as a responsible mind might accept to support a conclusion. It is more than a mere

scintilla and less than a preponderance.” Boyd v. Apfel, 239 F.3d 698, 704 (5th Cir. 2001). To

determine whether substantial evidence of disability exists, four elements of proof must be

weighed: (1) objective medical facts; (2) diagnoses and opinions of treating and examining

physicians; (3) claimant’s subjective evidence of pain and disability; and (4) claimant’s age,

education, and work history. Wren v. Sullivan, 925 F.2d 123, 126 (5th Cir. 1991) (citing

DePaepe v. Richardson, 464 F.2d 92, 94 (5th Cir. 1972)).

If the Commissioner's findings are supported by substantial evidence, they are

conclusive, and the reviewing court may not substitute its own judgment for that of the

Commissioner, even if the court determines the evidence preponderates toward a different

finding. Strickland v. Harris, 615 F.2d 1103, 1106 (5th Cir. 1980). Conflicts in the evidence are

to be resolved by the Commissioner, not the courts, Laffoon v. Califano, 558 F.2d 253, 254 (5th

Cir. 1977), and only a "conspicuous absence of credible choices" or "no contrary medical

evidence" will produce a finding of no substantial evidence. Hames v. Heckler, 707 F.2d 162,

164 (5th Cir. 1983). Stated differently, the level of review is not de novo. The fact that the ALJ

could have found plaintiff to be disabled is not the issue. The ALJ did not do this, and the case
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comes to federal court with the issue being limited to whether there was substantial evidence to

support the ALJ’s decision.

III.

ISSUES

This Court is limited to reviewing only whether there was substantial evidence in the

record as a whole to support the ALJ decision and whether proper legal standards were applied.

By her appeal, plaintiff raises the following issues:

1. Whether the hearing tape was so inaudible as to require remand for production of

an audible hearing tape; and,

2. Whether substantial evidence existed to support the ALJ’s decision.

IV.

MERITS

A.

The Hearing Tape

In her first point of error, plaintiff alleges her case should be remanded for purposes of

obtaining an audible hearing tape. Plaintiff bases this allegation on the presence of at least forty

“inaudible” notations entered by the transcriber on the hearing transcript. (Plaintiff’s Brief at 4). 

Plaintiff is correct that an inaudible hearing tape can be the basis of a remand. See, e.g., Randall

v. Sullivan, 956 F.2d 105 (5th Cir. 1992); Clifton v. Heckler, 755 F.2d 1138 (5th Cir. 1985). The

critical consideration is whether the deficiencies prohibit meaningful judicial review. In this

case, however, the ALJ heard plaintiff’s testimony during the administrative hearing, and set out,

in the administrative decision, the critical parts of plaintiff’s testimony. Plaintiff has not shown

the recitation and summarization of his testimony by the ALJ was flawed, nor has plaintiff

identified any prejudice from the untranscribed testimony. Furthermore, a review of the
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transcript demonstrates that the inaudible statements (1) occurred between the ALJ and

plaintiff’s counsel before testimony began in the hearing; (2) are understandable in context, i.e.,

the missing statement’s content can be gleaned from the context; or, (3) relate to matters that are

contained in the medical records.

For example, before the hearing began, the following exchange occurred:

ALJ: Okay. That’ll be fine. Do we have hearings with

you in the morning?

ATTY: Yes.

ALJ: Did we divide you up intentionally? I mean, was

this something — you wanted this way or — 

ATTY: I didn’t do it. I guess [INAUDIBLE].

ALJ: Because I ask them to bunch them unless the rep

specifies otherwise.

ATTY: Unless I already—well, I didn’t have any

scheduled. There’s four today and I think there’s

three or four tomorrow. I don’t know. I don’t have

much to do with it, my secretary schedules me.

ALJ: Oh.

ATTY: So maybe she decided I didn’t need to be bunched

up.

ALJ: All right. Well — no, I just — if somebody wants

to do a whole day, I’ll do it that way.

ATTY: Half a day is fine with me. It starts getting weary

after a while. [INAUDIBLE].

(Tr. 34-35). Clearly, this exchange does not relate to plaintiff’s case; thus, the inaudibles are

insignificant. Furthermore, the inaudibles contained in plaintiff’s hearing testimony do not

necessitate remand. For example, the following exchange occurred while the ALJ was
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questioning plaintiff:

Q: Now are those — are you having any problem with, say,

any joint deformities or any continual swelling problems in

any joints?

A: [INAUDIBLE]

Q: You don’t have any fingers go off the wrong direction or

—

A: No.

Q: — anything like that.

A: No.

Q: What do you do with your time most of the day?

A: Well, I was doing, you know — when I’m not in a lot of

pain, I try to just, you know [INAUDIBLE]. I read. I used

to do puzzles.

Q: Fair to say that the degree of pain kind of determines what

you do for the day?

A: [No audible response].

Q: Do you have a driver’s license?

A: No.

Q: You mentioned your back. Explain to me what the

problem is with your back.

A: [INAUDIBLE] lower back pain [INAUDIBLE].

Q: Does the pain seem to travel any place or radiate any

place?

A: It’s just mostly in there.

Q: Just in the back?
2

Plaintiff also seems to allege that the ALJ failed to properly credit all of plaintiff’s impairments. However, this

assertion is without merit because the majority of ailments plaintiff’s counsel cites to in his brief were never alleged as severe

impairments, and, in fact, many occurred more than five years before plaintiff ever alleged a disability. Therefore, such

impairments were not relevant to plaintiff’s disability application.

\SS\R&R\BATES-269.AFF-GRID:3 7

A: My knees and [INAUDIBLE].

Q: But you don’t have any shooting pain down the legs or

anything like that from the back?

A: Every once in a while, not often.

(Tr. 41-42). Although there are five inaudible notations and one “no audible response” notation

in this particular excerpt of plaintiff’s testimony, this excerpt illustrates the futility of remanding

this case in order to produce a clearer tape. The missing testimony does not create prejudice

necessitating remand. Therefore, in light of the transcript and the record as a whole, remand is

not necessary to produce a new hearing tape.

B.

Substantial Evidence

In her second point of error, plaintiff alleges there is not substantial evidence in the

record to support the ALJ’s determination. Specifically, plaintiff alleges the ALJ’s RFC

determination is without the support of substantial evidence because he failed to properly credit

Dr. Constantine Saadeh’s RFC evaluation.2 (Plaintiff’s Brief at 6).

At the ALJ hearing level, the ALJ bears the responsibility for determining a claimant’s

RFC. 20 C.F.R. § 404.1546(c). In making the RFC determination, the ALJ must consider all of

the relevant evidence of record, including subjective evidence of a claimant’s limitations. 20

C.F.R. § 404.1545(a)(3). Furthermore, the ALJ must weigh all of the opinion evidence. 20

C.F.R. §§ 404.1527(d), 416.927(d). Generally, a treating physician’s medical opinion is entitled
3

However, a treating physician’s opinion as to whether a claimant is disabled is not considered a medical opinion, and,

therefore, is not entitled to controlling weight. 20 C.F.R. §§ 404.1527(e), 416.927(e). 

4

Synovitis is defined as an “inflammation of a synovial membrane. It is usually painful, particularly on motion, and is

characterized by a fluctuating swelling due to effusion within a synovial sac.” Dorland’s Medical Dictionary 1645 (28th ed.

1997).

\SS\R&R\BATES-269.AFF-GRID:3 8

to controlling weight.3 Id.; see also Newton v. Apfel, 209 F.3d 448, 453 (5th Cir. 2000). 

“[A]bsent reliable medical evidence from a treating or examining physician controverting the

claimant’s treating specialist, an ALJ may reject the opinion of the treating physician only if the

ALJ performs a detailed analysis of the treating physician’s views under the criteria set forth in

20 C.F.R. §§ 404.1527(d)(2).” Newton, 409 F.3d at 453. The Fifth Circuit summarized those

criteria the ALJ must consider as follows:

(1) the physician’s length of treatment of the claimant,

(2) the physician’s frequency of examination,

(3) the nature and extent of the treatment relationship,

(4) the support of the physician’s opinion afforded by the

medical evidence of record,

(5) the consistency of the opinion with the record as a whole,

and

(6) the specialization of the treating physician.

Id. at 456. So long as the ALJ explains his reasons for declining to give a treating physician’s

opinion controlling weight, the ALJ’s decision will not be reversed for a failure to perfectly

conform with formalistic rules in articulating his decision. Falco v. Shalala, 27 F.3d 160, 164

(5th Cir. 1994).

According to the medical records, plaintiff was officially diagnosed with fibromyalgia in

March 2003 by Dr. Carlos Plata, M.D. (Tr. 249). Dr. Plata initially diagnosed plaintiff with the

disease in February 2003; at that time, however, plaintiff had “completely normal ROM [range

of motion] throughout with just minimal pain to palpation of the feet and hands . . . [and] no

significant synovitis.4

” (Tr. 251). Likewise, at plaintiff’s March 13, 2003, visit with Dr. Plata,
\SS\R&R\BATES-269.AFF-GRID:3 9

there was no evidence of significant synovitis. (Tr. 249). At her May 15, 2003 visit, plaintiff

continued to maintain a normal range of motion and show normal strength on all of her reflexes. 

(Tr. 248). Although Dr. Plata noted that plaintiff’s fibromyalgia seemed to be worsening, he also

noted that such worsening could have been caused by plaintiff’s sleep disturbance due to

sinusitis. (Id.). After a follow-up visit on July 17, 2003, Dr. Plata again noted that plaintiff

showed no significant synovitis and continued to maintain a normal range of motion. (Tr. 246). 

Dr. Plata’s impression after the visit was that plaintiff’s fibromyalgia “was well controlled last

time she was seen before she got infected. It seems that the pain is somewhat worse right now

but it does not seem to be very severe and it seems to be better controlled.” (Id.).

Dr. Constantine Saadeh, M.D., began treating plaintiff in January 2003. (Tr. 288). At

the initial exam on January 17, 2003, plaintiff had some swelling in both hands and tenderness in

her right wrist, but maintained a full range of motion in all joints. (Tr. 288). A June 5, 2003,

sonogram of plaintiff’s hands revealed inflammation in her left hand. (Tr. 287). After a June 28,

2003, x-ray of plaintiff’s hands, Dr. Saadeh concluded, “The findings are benign with possible

early inflammatory arthropathy.” (Tr. 284). On September 23, 2003, plaintiff had a follow-up

exam with Dr. Saadeh. In the examination notes, Dr. Saadeh stated that plaintiff’s extremities

were symmetrical, and plaintiff maintained a full range of motion with equal tone and strength in

all extremities. Dr. Saadeh noted mild tenderness and swelling in plaintiff’s hands. As in all of

her examinations, plaintiff was alert and oriented with no sensory or motor function

impairments. (Tr. 277). Ultrasounds and x-rays of plaintiff’s hands, knees, feet, and ankles

showed only mild to moderate degenerative changes. (Tr. 276). Ultimately, Dr. Saadeh

diagnosed plaintiff with rheumatoid arthritis and placed plaintiff on Methotrexate and Remicade

for treatment. (Tr. 272, 275, 277).
5

Interestingly, one of his bases for stating plaintiff was severely limited was diminished range of motion. Such a

statement is completely unsupported by any of the medical evidence in the record, including Dr. Saadeh’s own treatment notes.

\SS\R&R\BATES-269.AFF-GRID:3 10

On February 18, 2004, plaintiff had another follow-up exam with Dr. Saadeh. Again,

plaintiff maintained a full range of motion in her extremities and demonstrated no evidence of

cyanosis, edema, joint tenderness, or effusion, although plaintiff did have some swelling and

mild tenderness in her hands. (Tr. 266). Plaintiff was alert and oriented, and all of her sensory

and motor functions were intact. (Id.). Plaintiff continued on injections of Remicade through at

least July 2004. (Tr. 355, 356, 358, 362, 368).

While plaintiff’s application for disability benefits was still pending, Dr. Saadeh filled

out two separate disability forms. In the first form, dated July 8, 2004, Dr. Saadeh stated

plaintiff was unable to work, primarily due to her rheumatoid arthritis, with anemia and

fibromyalgia being secondary disabling impairments. (Tr. 354). Dr. Saadeh did not cite to any

specific clinical findings or objective tests to support his opinion plaintiff was permanently

disabled. In the second form, dated September 20, 2004, Dr. Saadeh concluded that plaintiff was

very limited in her ability to carry out most work-related functions.5 (Tr. 251-353). Again, Dr.

Saadeh did not point to any specific objective criteria upon which he based his determination;

instead, he cited plaintiff’s impairments generally. 

In his decision, the ALJ made the following evaluation based upon the medical evidence:

It is noted that in September 2004, the claimant’s treating

doctor reported that the claimant is unable to work, and assessed the

claimant as physically capable of lifting and carrying no more than

ten pounds at a time, and totally limited from many basic work

related activities. . . . This report, however, can not be provided

probative weight because it is not supported by any objective clinical

findings such as documented lifting and carrying maneuvers or any

other measured clinical tests or examinations; and the report exceeds

the treating doctor’s area of expertise, i.e., the treating doctor is not

a vocational expert and did not provide any evident consideration to
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vocational factors such as the range of ability the claimant retains

despite her impairments, the claimant’s age, education, or past

relevant work.

. . . .

In rendering this decision I considered the claimant’s

subjective complaints in assessing and evaluating her residual

functional capacity for work in compliance with 20 C.F.R. §

404.1529, § 416.929, and Social Security Ruling 96-7p. It is

recognized that the claimant has experienced some severe

diminishment of her overall functional capability due to hands, legs,

and feet [sic] medically determinable impairment. However, it is also

recognized that the severity of the claimant’s combination of

impairment is not incompatible with the performance of certain levels

of sustained work activity. . . . [B]ased on all the evidence I conclude

that the claimant retains the residual functional capacity sufficient to

perform the vocational demands of sedentary work activity.

(Tr. 22). The ALJ clearly weighed Dr. Saadeh’s opinion, and even incorporated, somewhat, Dr.

Saadeh’s opinion as to plaintiff’s exertional limitations, and stated his reasons for not fully

incorporating Dr. Saadeh’s opinion. The reasons given are supported by the record. Dr. Saadeh

did not cite to any objective criteria in his disability statements, and in fact, contradicted his own

treatment notes to an extent by stating plaintiff suffered from diminished range of motion and

severe impairments, when all of the objective tests indicated only mild to moderate degenerative

changes and no diminishment in range of motion. Furthermore, because the determination of

disability is an issue reserved to the Commissioner, the ALJ did not err by failing to adopt Dr.

Saadeh’s opinion that plaintiff was totally disabled. See Newton, 209 F.3d at 456.

The ALJ considered plaintiff’s subjective complaints, but ultimately found them to be not

substantially credible in light of the medical evidence because the evidence did not show

plaintiff was precluded from engaging in all forms of work activity, as she alleged. Because the

ALJ properly considered all of the evidence, and because ALJ’s RFC determination—that
6

“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.” 20 C.F.R. § 404.1567(a).

7

Plaintiff has made no allegations concerning the ALJ’s use of the Grids; therefore, the ALJ’s use of the Grids is not

addressed. However, the Court does note that the Grids would direct a finding of “not disabled” for a younger individual, aged

18-44, with a high school education and an RFC for sedentary work. See Medical-Vocational Rule 201.27.

\SS\R&R\BATES-269.AFF-GRID:3 12

plaintiff retained an RFC for sedentary work6—is supported by substantial evidence, it must be

affirmed.7

V.

RECOMMENDATION

THEREFORE, for all of the reasons set forth above, it is the opinion and

recommendation of the undersigned to the United States District Judge that the decision of the

defendant Commissioner finding plaintiff not disabled and not entitled to a period of disability

benefits be AFFIRMED.

VI.

INSTRUCTIONS FOR SERVICE

The United States District Clerk is directed to send a copy of this Report and

Recommendation to each party by the most efficient means available.

IT IS SO RECOMMENDED. 

ENTERED this 8th day of September 2008.

_____________________________________

CLINTON E. AVERITTE

UNITED STATES MAGISTRATE JUDGE

* NOTICE OF RIGHT TO OBJECT *

Any party may object to these proposed findings, conclusions and recommendation. In the
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event a party wishes to object, they are hereby NOTIFIED that the deadline for filing objections is

eleven (11) days from the date of filing as indicated by the “entered” date directly above the

signature line. Service is complete upon mailing, Fed. R. Civ. P. 5(b)(2)(B), or transmission by

electronic means, Fed. R. Civ. P. 5(b)(2)(D). When service is made by mail or electronic means,

three (3) days are added after the prescribed period. Fed. R. Civ. P. 6(e). Therefore, any objections

must be filed on or before the fourteenth (14th) day after this recommendation is filed as

indicated by the “entered” date. See 28 U.S.C. § 636(b); Fed. R. Civ. P. 72(b); R. 4(a)(1) of

Miscellaneous Order No. 6, as authorized by Local Rule 3.1, Local Rules of the United States

District Courts for the Northern District of Texas. 

Any such objections shall be made in a written pleading entitled “Objections to the Report

and Recommendation.” Objecting parties shall file the written objections with the United States

District Clerk and serve a copy of such objections on all other parties. A party’s failure to timely

file written objections to the proposed findings, conclusions, and recommendation contained in this

report shall bar an aggrieved party, except upon grounds of plain error, from attacking on appeal the

unobjected-to proposed factual findings, legal conclusions, and recommendation set forth by the

Magistrate Judge in this report and accepted by the district court. See Douglass v. United Services

Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996); Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th

Cir. 1988).