1 The following background information comes from the transcript of the administrative proceedings, which

is designated as “Tr.”

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

WICHITA FALLS DIVISION

GARY W. WILSON, )

Plaintiff, )

)

v. ) No. 7:05-CV-134-BF (R)

)

COMMISSIONER OF THE )

SOCIAL SECURITY ADMINISTRATION, )

Defendant. )

MEMORANDUM OPINION AND ORDER

This is a consent case before the United States Magistrate Judge. The Court has

considered the “Brief for Plaintiff,” filed December 15, 2005, and “Defendant’s Brief and Response

to Plaintiff’s Brief,” filed June 12, 2006. The Court has reviewed the evidence of the parties in

connection with the pleadings and hereby affirms the final decision of the Commissioner.

I. Background1

A. Procedural History

This is a social security case. Plaintiff Gary W. Wilson (“Plaintiff”) seeks judicial review

of a final decision by the Commissioner of the Social Security Administration (“Commissioner”),

who denied his claim for supplemental security income (“SSI”) under Title XVI of the Social

Security Act (“Act”). Plaintiff applied for SSI effective April 16, 2003. (Tr. 45-49.) After his

application was denied both initially and upon reconsideration, he requested a hearing before an

Administrative Law Judge (“ALJ”). Lance K. Hiltbrand, the ALJ, convened a hearing on January

6, 2005. (Tr. 18-19, 31, 124-60.) The ALJ issued an unfavorable decision on March 9, 2005. (Tr.

11-17.) When Plaintiff requested review by the Appeals Council, it declined to review the ALJ’s

 

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unfavorable decision, thereby rendering that decision the final decision of the Commissioner. (Tr.

3-5.) On July 12, 2005, Plaintiff filed this appeal in the Northern District of Texas. 

The appeal is now before this Court for a decision. Plaintiff contends that the Commissioner

did not meet her burden of proof at the fifth step of the sequential evaluation to show jobs which

Plaintiff could perform with the residual functional capacity that the Commissioner found that he

retained. (Plaintiff’s Brief (“Pl’s Br.”) at 1, 8-13.) The Commissioner counters that her decision

that Plaintiff was not disabled at any time through March 9, 2005, the date of the administrative

decision is supported by substantial evidence and should be affirmed. (Commissioner’s Brief

(“Com.’s Br.”) at 4-9.)

B. Factual History

1. Plaintiff’s Age, Education, and Work Experience

Plaintiff’s date of birth is August 9, 1964. (Tr. 46.) He graduated from high school,

although he claimed that he was in special education. (Tr. 63, 129-30, 153.) His past work included

jobs entitled “fast food worker” and “cook helper.” (Tr. 154.) The jobs were exertionally light and

medium, respectively, and both were unskilled. (Id.)

2. Plaintiff’s Relevant Medical Evidence 

The adjudicated period for Plaintiff’s SSI application is from May 6, 2003, through the date

of the ALJ’s March 9, 2005, decision. The Court considers Plaintiff’s medical records for 2003 to

be relevant. 

On January 6, 2003, he reported to the Wilbarger General Hospital emergency room for

nausea and vomiting. (Tr. 88-93.) The hospital noted a history of asthma and routine medication,

an “Albuterol inhaler.” (Id.) The emergency room doctor diagnosed “hematuric abdominal pain.”

 

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(Id.) On January 27, 2003, Dr. Layne E. Collums, Jr., M.D., examined Plaintiff. (Tr. 111.) Plaintiff

complained of asthma, a cough, and congestion. (Id.) Dr. Collums noted “lungs expiratory

wheezes.” The doctor’s diagnosis was asthma. Dr. Collums prescribed an Advair inhaler, Nasecort,

and another medication. (Id.)

Dr. Collums examined Plaintiff again on September 2, 2003, due to Plaintiff’s complaint of

asthma, shortness of breath, and a cough. (Tr. 123.) On examination, Dr. Collums noted “few

expiratory wheezes,” and diagnosed “asthma/allergies.” (Id.) Dr. Collums prescribed Depo-Medrol,

an Advair inhaler, and two other medications. (Id.)

Plaintiff went to Dr. Collums on November 13, 2003, complaining of asthma and difficulty

breathing. (Tr. 122.) His medications included Singulair and an Albuterol inhaler. (Id.) On

examination, Dr. Collums found “expiratory wheezes,” diagnosed asthma, and prescribed DepoMedrol and something for home use with Albuterol. (Id.) 

 3. Plaintiff’s Hearing

Plaintiff’s hearing was on January 6, 2005. (Tr. 124.) He was represented at the hearing

by Roger Owen, a non-attorney representative. (Id.) In addition to Plaintiff’s testimony, the ALJ

heard testimony from Clifton King, an impartial Vocational Expert (“VE”). (Tr. 124-160.)

With respect to daily activities, Plaintiff testified that he was unable to work due to asthma

and emphysema. He related that he lived with his wife and two children. Plaintiff testified that he

was unable to read and write. He told the ALJ that many activities cause his breathing problems to

become worse and that he could not lift heavy items. He claimed he did not perform any household

chores, did not visit friends, and did not drive because his driver’s license was taken away for his

failure to pay child support. He testified that he took care of his personal hygiene, watched

 

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television, and had done housework until his breathing difficulties began.

The ALJ found that Plaintiff has a severe impairment of asthma, but that this medically

determinable impairment does not meet or medically equal one of the listed impairments in App.

1, Subpt. P, Reg. No. 4. The ALJ found that Plaintiff’s allegations regarding his limitations are not

 totally credible, and that Plaintiff has the residual functional capacity (“RFC”) to perform medium

work activity. The ALJ found that Plaintiff must avoid all exposure to poor ventilation and fumes,

odors, dusts, gases and that Plaintiff has a mild level of fatigue and discomfort. The ALJ found that

Plaintiff is unable to perform his past relevant work. The ALJ further found that Plaintiff is a

“younger individual between the ages of 18 and 44," that he has a “high school education,” and that

“transferability of skills is not an issue in this case.” (Tr. 16.) 

The VE testified that examples of work that a claimant with Plaintiff’s limitations could

perform include light, unskilled work as an electric worker with 5,000 jobs available in Texas and

12,000 jobs available in the national economy. The VE also testified that Plaintiff could perform

work as an assembler plastic hospital products with 1,000 jobs available in Texas and 25,000 jobs

available in the national economy. The VE further testified that Plaintiff could perform sedentary,

unskilled work (1) as a circuit board assembler with 700 jobs available in Texas and 12,000 jobs

available in the national economy; (2) as a suter winder with 1,000 jobs available in Texas and

15,000 jobs available in the national economy; and (3) as a touch up screener with 1,000 jobs

available in Texas and 30,000 jobs available in the national economy. (Tr. 154-56.) 

The ALJ concluded that Plaintiff was not under a “disability” as defined in the Act at any

time through the date of the decision and was not eligible for SSI payments. 

 

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II. Legal Standards

To be entitled to social security benefits, Plaintiff must prove that he is disabled for purposes

of the Social Security Act. Leggett v. Chater, 67 F.3d 558, 563–64 (5th Cir. 1995); Abshire v.

Bowen, 848 F.2d 638, 640 (5th Cir. 1988). The definition of disability under the Social Security Act

is “the inability to engage in any substantial gainful activity by reason of any medically determinable

physical or mental impairment which can be expected to result in death or which has lasted or can

be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A);

Anthony v. Sullivan, 954 F.2d 289, 292 (5th Cir. 1992).

The Commissioner utilizes a sequential five-step inquiry to determine whether a claimant

is disabled. Those steps are: 

1. An individual who is working and engaging in substantial gainful activity will not

be found disabled regardless of medical findings.

2. An individual who does not have a “severe impairment” will not be found to be

disabled.

3. An individual who “meets or equals a listed impairment in Appendix 1" of the

regulations will be considered disabled without consideration of vocational factors.

4. If an individual is capable of performing the work he has done in the past, a finding

of “not disabled” must be made.

5. If an individual’s impairment precludes him from performing his past work,

other factors including age, education, past work experience, and residual functional

 capacity must be considered to determine if work can be performed.

Wren v. Sullivan, 925 F.2d 123, 125 (5th Cir. 1991) (summarizing 20 C.F.R. § 404.1520(b)-(f)).

Under the first four steps of the inquiry, the burden lies with the claimant to prove his disability.

Leggett, 67 F.3d at 564. The inquiry terminates if the Commissioner determines at any point during

the first four steps that the claimant is disabled or is not disabled. Id. Once the claimant satisfies

 

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his burden under the first four steps, the burden shifts to the Commissioner at step five to show that

there is other gainful employment available in the national economy that the claimant is capable of

performing. Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994). This burden may be satisfied

either by reference to the Medical-Vocational Guidelines of the regulations or by expert vocational

testimony or other similar evidence. Fraga v. Bowen, 810 F.2d 1296, 1304 (5th Cir. 1987).

The Commissioner’s determination is afforded great deference. Leggett, 67 F.3d at 564.

Judicial review of the Commissioner’s findings is limited to whether the decision to deny benefits

is supported by substantial evidence and to whether the proper legal standard was utilized.

Greenspan, 38 F.3d at 236; 42 U.S.C.A. § 405(g). Substantial evidence is defined as “that which

is relevant and sufficient for a reasonable mind to accept as adequate to support a conclusion; it must

be more than a scintilla, but it need not be a preponderance.” Leggett, 67 F.3d at 564. The

reviewing court does not reweigh the evidence, retry the issues, or substitute its own judgment, but

rather scrutinizes the record to determine whether substantial evidence is present. Greenspan, 38

F.3d at 236. 

III. Analysis

As noted above, Plaintiff contends that the ALJ did not meet his burden at step five of the

sequential step process to prove that Plaintiff had the residual functional capacity to perform jobs

existing in the national and local economies in significant numbers. The Commissioner counters

that the ALJ properly found that Plaintiff was not disabled at any time through March 9, 2005, the

date of the administrative decision and that the ALJ’s decision comports with the law and is

supported by substantial evidence.

A. The ALJ’s failure to determine whether Plaintiff can read or write

 

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“Residual functional capacity” refers to the claimant’s ability to do work despite any

physical or mental impairments. 20 C.F.R. § 404.1545(a). The ALJ has the responsibility to

determine the Plaintiff’s residual functional capacity at the administrative hearing based on all of

the evidence, including the medical records, observations of treating physicians, observations of

others, and Plaintiff’s own description of his limitations. Martinez v. Chater, 64 F.3d 172, 174 (5th

Cir. 1995). The ALJ must resolve conflicts in the evidence and make credibility determinations

based on substantial evidence. Lovelace v. Bowen, 813 F.2d 55, 59-60 (5th Cir. 1987); Allen v.

Schweiker, 642 F.2d 799, 801 (5th Cir. 1981) (per curiam). “The [proper] inquiry [] is whether the

record, read as a whole, yields such evidence as would allow a reasonable mind to accept the

conclusions reached by the ALJ.” Loza v. Apfel, 219 F.3d 378, 393 (5th Cir. 2000). "An ALJ's

decision is not subject to reversal, even if there is substantial evidence in the record that would have

supported an opposite conclusion, so long as substantial evidence supports the conclusion reached

by the ALJ.” Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997). See also Moad v. Massanari, 260

F.3d 887, 890 (8th Cir. 2001) (“[W]e may not reverse merely because substantial evidence exists

for the opposite decision.”). "[C]onflicts in the evidence are for the Commissioner and not the

courts to resolve." Masterson v. Barnhart, 309 F.3d 267, 272 (5th Cir. 2002) (quoting Newton v.

Apfel, 209 F.3d 448, 452 (5th Cir. 2000)). 

The ALJ determined that despite Plaintiff’s severe asthma, he has the residual functional

capacity to perform medium work activity. The ALJ found that Plaintiff must avoid all exposure

to poor ventilation and fumes, odors, dusts, gases and that he has a mild level of fatigue and

discomfort. The ALJ determined that Plaintiff could not perform his past work, but, with the

testimony of the VE, determined that Plaintiff could perform a significant range of medium work.

 

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The fact that a claimant completed high school is not dispositive of the issue of literacy vel

non. Albritton v. Sullivan, 889 F.2d 640, 643 (5th Cir. 1989); Jimmerson v. Apfel, 111 F. Supp. 2d

846, 850 (E.D. Tex. 2000). Plaintiff contends that in light of his testimony that he is unable to read

or write, the ALJ erred by relying upon Plaintiff’s high school education to find that he could

perform work which existed in the economy in significant numbers. Plaintiff asserts that at the very

least, the ALJ should have determined whether Plaintiff can read or write.

Plaintiff contends that according to the Dictionary of Occupational Titles (“DOT”), the three

jobs which the ALJ found that Plaintiff could perform all require some ability to read. Plaintiff

requests that the Commissioner’s decision be vacated and the case remanded for the purpose of

creating a more complete record with respect to Plaintiff’s literacy.

The Court “will not vacate a judgment unless the substantial rights of a party have been

affected.” Anderson, 887 F.2d at 634. The Fifth Circuit Court of Appeals has elaborated on the

substantial rights analysis for determining prejudice in Social Security cases. See Morris v. Bowen,

864 F.2d 333, 335 (5th Cir. 1988). Procedural improprieties “constitute a basis for remand only if

such improprieties would cast into doubt the existence of substantial evidence to support the ALJ’s

decision.” Id.

The Fifth Circuit Court of Appeals has cautioned that:

[C]laimants should not be permitted to scan the record for implied or unexplained

conflicts between the specific testimony of an expert witness and the voluminous

provisions of the DOT, and then present that conflict as reversible error, when the

conflict was not deemed sufficient to merit adversarial development in the

administrative hearing.

See Carey v. Apfel, 230 F.3d 131, 145 (5th Cir. 2000). Plaintiff’s representative did not attempt to

resolve any alleged conflict between the DOT and the VE’s testimony at the hearing before the ALJ.

 

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Moreover, if the issues are (1) whether a claimant’s work skills can be used in other work and (2)

the specific occupations in which they can be used, the ALJ may rely upon the services of a VE.

See 20 C.F.R. § 416.966(e). As the appellate court did in Carey, this Court will assume that neither

the DOT nor the VE’s testimony is per se controlling. Carey, 230 F.3d at 145. Nevertheless, the

VE testified clearly, unequivocally, and without challenge from Plaintiff’s representative that a

person who could not read or write would not be precluded from performing the job of electronic

worker because the job of electronic worker had both verbal and written instructions. (Tr. 157-58.)

The VE explained that the number of electronic worker jobs available would be reduced by one-half

if verbal instructions were required. (Id.) Therefore, applying the reduction, jobs as electronic

worker with verbal instructions exist in Texas in the amount of 2,500 jobs and in the national

economy in the amount of 6,000 jobs. (Id.) This testimony, taken in the context of the record as a

whole, is more than adequate to support the ALJ's determination that Plaintiff can perform other

available work. Substantial evidence supports the ALJ’s decision at step five that a significant

number of jobs exists in the national economy that Plaintiff can perform. Plaintiff did not prove that

he was prejudiced by the ALJ’s failure to make a more complete record with respect to Plaintiff’s

literacy. Accordingly, Plaintiff has not shown that the Commissioner’s decision should be reversed.

B. Asthma Treatment

Plaintiff contends that the ALJ’s hypothetical question was inaccurate because it did not

contain the assumption that Plaintiff would need to take fifteen to twenty minute breaks during the

day to take breathing treatments. The ALJ did not find that Plaintiff was required to take breathing

treatments. Therefore, the hypothetical question was not required to contain this assumption. See

Ownes v. Heckler, 770 F.2d 1276, 1282 (5th Cir. 1985). 

 

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Plaintiff testified that he takes breathing treatments four times a day. (Tr. 147.) However,

the record does not support this assertion. (Tr. 62, 86-87.) Plaintiff was prescribed inhalers but not

a breathing machine. The ALJ found that Plaintiff’s allegations regarding his limitations are not

totally credible. (Tr. 16.) The ALJ further noted that no work related restrictions have been placed

on Plaintiff by any medical source. (Tr. 14.) The ALJ considered the medical reports to be minimal

and noted no recent treatment in 2004. (Id.) Additionally, the ALJ found no indication that his

medication causes side effects. (Id.) Nothing in the record supports Plaintiff’s assertion that the

ALJ gave the VE a faulty hypothetical. Substantial evidence supports the ALJ’s decision that

Plaintiff’s limitations did not rise to a level of severity and were not of such duration and intensity

to preclude him from engaging in all substantial gainful activity. Even assuming Plaintiff takes

breathing treatments four times a day, the record contains no evidence that such treatments could

not be accomplished before work, after work, during lunch, and during routine breaks without

special accommodations.

For the foregoing reasons, the Court determines that the final decision of the Commissioner

is AFFIRMED.

SO ORDERED, October 16, 2006.

_____________________________________

PAUL D. STICKNEY

UNITED STATES MAGISTRATE JUDGE

 

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