1

 References to the transcript of the administrative proceedings are designated as “Tr.”

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

DONNA McLACHLAN, )

Plaintiff, )

) Civil Action No.

v. ) 3:04-CV-2580-K

)

COMMISSIONER OF THE SOCIAL )

SECURITY ADMINISTRATION, )

Defendant. )

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

This is a social security case. Plaintiff Donna McLachlan (“Plaintiff”) seeks judicial review

of a final decision by the Commissioner of the Social Security Administration (“Defendant” or

“Commissioner”) who denied her claims for Disability Insurance Benefits under Title II of the

Social Security Act (“DIB”). Pursuant to the provisions of Title 28, United States Code, Section

636(b)(1)(B), and an Order of the Court, this case has been referred to the United States Magistrate

Judge. Plaintiff’s Brief in Support of Request for Judicial Review and Defendant’s Brief are before

the Court for consideration. The Court has reviewed the evidence of the parties in connection with

the pleadings and RECOMMENDS that the final decision of the Commissioner be AFFIRMED.

I. Background1

A. Procedural History

 Plaintiff filed her DIB application with a protective filing date of January 19, 2001. (Tr. at

56, 57-9.) After her application was denied both initially and upon reconsideration, Plaintiff, who

was represented by Russell Disparti, received a hearing before Administrative Law Judge Ralph L.

Wampler (the “ALJ”) on March 13, 2003. (Id. at 314-27.) The ALJ issued an unfavorable decision

 

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 More specifically, Plaintiff alleges that the Commissioner (1) failed to articulate a

legitimate basis for discounting her chronic pain; (2) failed to recontact her treating neurologist

concerning her ability to work on a sustained basis; (3) failed to make a finding that Plaintiff

could maintain employment; (4) made flawed findings with respect to Plaintiff’s Residual

Functional Capacity (“RFC”); (5) failed to develop the evidence with respect to the specific

skills or mental demands of her work; and (6) failed to consider Plaintiff’s additional nonexertional limitations with respect to her balance, concentration, and speech.

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on June 19, 2003, finding that Plaintiff could not perform her past relevant work but that she could

perform work which exists in significant numbers in the national and local economies. (Id. at 14-

20.) The Appeals Council granted Plaintiff’s request for review of the ALJ’s decision and decided

that Plaintiff was able to perform her past relevant work. (Id. at 4-8.) Plaintiff now seeks judicial

review of the Commissioner's decision pursuant to 42 U.S.C. § 405(g).

Plaintiff alleges that the Commissioner’s decision is not supported by substantial evidence

and is not consistent with applicable legal standards because the Commissioner failed to articulate

a legitimate basis for discounting Plaintiff’s chronic pain from peripheral neuropathy and failed to

re-contact her treating physician concerning her ability to work on a sustained basis.2

 (Pl.’s Br. at

6-17.) Defendant responds that the Commissioner’s decision that Plaintiff was not disabled must

be affirmed because the Commissioner applied the correct legal standards, and the decision is

supported by substantial evidence. (Def.’s Br. at 2-13.) 

B. Factual History

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

Plaintiff’s date of birth is April 13, 1943. She was sixty years old, a person approaching

advanced age, at the time of the hearing. Plaintiff graduated from high school and completed one

year of college. She worked as a wafer tester, telemarketer, and electronics assembler. Plaintiff met

the DIB status requirements on July 19, 2000, the date she claims that she became unable to work

 

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due to severe chronic pain from peripheral neuropathy in her feet and legs. She continued to meet

the requirements through the date of the decision. She had not engaged in substantial gainful

activity since July 19, 2000. (Tr. at 19, 56, 57-9, 70, 79-80, 85, 317.) 

2. Plaintiff’s Medical Evidence 

Tom Henslee, D.P.M., examined Plaintiff on November 5, 1999, pursuant to a referral from

Gregory Carlson, M.D. (Tr. at 120-22.) Dr. Henslee’s diagnosis was hyperesthesia and paresthesia

secondary to unknown neurological etiology with the possibility that she was taking an excessive

number of vitamins. (Id.) 

Plaintiff’s treating physician, Gregory Carlson, M.D., reported that bone density tests on

September 28, 1999, were normal. (Tr. at 147.) Dr. Carlson noted on November 11, 1999, that he

had referred Plaintiff to Dr. Henslee who had found only frozen joints in her small toes and who had

told her she needed to explore medical causes for her foot pain. (Id. at 154.)

The Commissioner referred Plaintiff to Charles N. Howard, Jr., M.D., for a consultative

examination which took place on August 20, 2001. (Tr. at 184-189.) Dr. Howard determined that

Plaintiff had a full range of motion in her shoulders, elbows, wrists, and hands and could grasp and

finely manipulate with no evidence of erythema, edema, or deformity. (Id. at 185.) With respect

to her lower extremities, Dr. Howard found a full range of motion of her hips, knees, ankles, and feet

without any evidence of erythema, edema, or deformity. He noted:

She complain[ed] of numbness in her lateral legs, but when I checked for sensation

in her feet, she almost [came] off the table when I checked the lateral aspect of the

foot on both sides; so there seems to be some discrepancy here.

(Id.) He further noted that she had full range of motion when she was in the standing position, but

that she could not do a straight leg raise, either sitting or lying down. (Id.) She told Dr. Howard that

 

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she was too unstable to do a heel-walk or a toe-walk. (Id.) The doctor said that she walked with a

stable solid gain, but she walked very slowly and deliberately, as if she had trouble controlling her

balance. She had the same gate going down the hall and when she initially went down the outside

steps. (Id.) However, the doctor added that she came back up the steps, went into the building, went

back down the steps again, and walked out to the car with a much more stable gait and without the

appearance that she was losing her balance. (Id.) He noted that she easily entered the truck. (Id.)

His diagnosis was that she had peripheral neuropathy of the lower extremities of unknown etiology,

hypertension, and was overweight. (Id.)

A state agency physician completed a Psychiatric Review Technique Form after a review of

the record and found Plaintiff’s restriction of activities of daily living and difficulties in maintaining

social functioning to be mild. (Tr. at 172.) He found that she had no difficulties in maintaining

concentration, persistence, or pace, and had no repeated episodes of decompensation. (Id.) He

concluded that she did not have a severe mental impairment. (Id.)

Two state agency physicians reviewed Plaintiff’s medical file in connection with her Social

Security claim and assessed Plaintiff’s RFC at light work. (Tr. at 190-98, 199-206.)

Treating neurologist E. Sundaram, Jr., M.D., began seeing Plaintiff in February 2000, after

a referral from Dr. Carlson. (Tr. at 249-69, 221-48.) Dr. Sundaram thought Plaintiff’s symptoms

were suggestive of possible peripheral neuropathy. (Id. at 269.) He examined Plaintiff monthly

from March through November of 2000. (Id. at 254-67.) He also examined her in January and

March of 2001, and in March and May of 2002. (Id. at 249-53.) The “Objective Neurological

Exam” on each of these dates states that “there is no change from prior exam.” Dr. Sundaram

referred Plaintiff to Dr. S. Appel, who also diagnosed her with mild sensory neuropathy with no

 

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definite cause. (Tr. at 251.) On January 16, 2002, Dr. Sundaram issued an opinion that Plaintiff was

totally disabled. (Tr. at 221-23.) 

3. Plaintiff’s Hearing

Plaintiff’s hearing convened on March 13, 2003. (Tr. at 314-27.) Mr. Disparti represented

her at the hearing. (Id.) The witnesses were Plaintiff and Dr. Carry Bartlow, a Vocational Expert

(“VE”). (Id.)

Plaintiff testified that at her last job, she worked twelve hours a day as a wafer processor.

(Tr. at 318.) This job lasted about a year. (Id.) Additionally, she stated that she had worked briefly

as a telemarketer and an electronics assembler. (Id.) She stated that she quit working because of

pain in her feet and legs. (Id.) She claimed that although her job usually required some standing,

she was allowed to perform her job sitting down. (Id. at 319.) She stated that she took medication

daily for pain, but she did not feel as if it helped her. (Id.) She testified that she also took

medication for depression and that her depression was under control. (Id. at 321.) 

She related that she took care of her own personal needs, dressing, laundry, some of the

cooking, and some of the grocery shopping. (Tr. at 321-22.) She said that she had trouble sleeping

at night and took Trazodone, which helped her get to sleep. (Id. at 323.) She said that she did not

sleep at all during the day and usually spent about eight hours a day in her recliner. (Id. at 339-40.)

The record shows that Plaintiff’s recreational activities and hobbies included reading,

watching television, and crocheting. (Tr. at 102.) Her social activities included visiting friends or

relatives. (Id. at 103.) She was able to drive locally. (Id.)

The ALJ questioned the VE about Plaintiff’s past relevant work. (Tr. at 324.) The VE

testified that Plaintiff’s jobs as a wafer processor and telemarketer were sedentary and semiskilled.

 

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 The ALJ found that Plaintiff could not perform her past relevant work (which included

work as a wafer tester or processor, sedentary and semi-skilled), but that she had transferrable

skills from her past relevant work and was able to perform sedentary, semiskilled work, such as

wafer tester, with 450 jobs existing in the region and 42,000 nationally.

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(Id.) He told the ALJ that her job as an electronics assembler, as she performed it, was sedentary

and semi-skilled. (Id. at 325.) 

4. The ALJ’s Findings

On June 19, 2003, the ALJ issued an unfavorable decision on Plaintiff’s application for DIB.

(Tr. at 14-20.) In relevant part, the ALJ found that Plaintiff had a severe impairment of peripheral

neuropathy in her feet and legs, but that her impairment did not meet or equal the criteria of any of

the listed impairments described in 20 C.F.R. Pt. 404, Supt. P., App. 1 (the “Listings”). (Id. at 19.)

The ALJ considered whether Plaintiff’s pain was disabling. (Id. at 18.) He found that there was no

evidence of any muscle atrophy, reduced joint motion, muscle spasm, or sensory and motor

disruption. (Id.) He noted that extensive testing by a neurologist had not revealed why Plaintiff

should have been experiencing the pain. (Id.) The ALJ found that she retained the RFC to lift no

more than ten pounds at a time, that she was able to occasionally lift or carry articles like docket

files, ledgers, and small tools, and that she could walk and stand no more than a total of two hours

out of an eight-hour workday. (Id.) The ALJ concluded that Plaintiff was capable of performing

a full range of sedentary work. (Id.) He concluded that Plaintiff could not perform her past work,

but that she had the residual functional capacity to perform a significant number of jobs existing in

the local and national economy.3

 (Id. at 19.) He thus concluded that Plaintiff had not been disabled

within the meaning of the Act at any time through the date of his decision. (Id.)

 

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5. The Appeals Council’s Decision

Plaintiff appealed the ALJ’s decision to the Appeals Council, and it granted review on July

9, 2004. (Tr. at 5, 9-11.) The Appeals Council affirmed the ALJ’s findings under the first three

sequential steps of the analysis, but found that Plaintiff was able to perform her past relevant work

as a wafer processor, telemarketer, or electronics assembler, jobs that were sedentary and semiskilled. (Id. at 5-6.) The Appeals Council concluded that Plaintiff was not disabled within the

meaning of the Social Security Act at any time through the date of its decision. (Id. at 6.) 

II. Legal Standards

To be entitled to social security benefits, Plaintiff must prove that she 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 in determining disability:

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 she has done in the past, a finding

of “not disabled” must be made.

 

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5. If an individual’s impairment precludes her from performing her 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 her 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

her 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). In this

case the ALJ’s determination ended at the fourth step.

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

Judicial review of the Commissioner’s findings is limited to (1) whether the decision to deny

benefits was supported by substantial evidence and (2) whether the proper legal standard was

utilized. Greenspan, 38 F.3d at 236; 42 U.S.C.A. § 405(g) (West Supp. 1999). 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. The Court now turns to the merits of the appeal.

 

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 The hearing was held in Oklahoma. Accordingly, the ALJ relied upon Tenth Circuit

precedent. The precedent he relied upon is in accord with precedent in this Circuit.

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III. Analysis

A. Plaintiff’s Claim that the Commissioner Failed to Articulate a Legitimate Basis

for Finding that Her Pain was Not Disabling

Plaintiff contends the Commissioner’s decision is not supported by substantial evidence and

is not consistent with applicable legal standards because neither the ALJ nor the Appeals Council

articulated a legitimate basis for discounting Plaintiff’s chronic pain. (Pl.’s Br. at 6.)

“[T]he ALJ must consider subjective evidence of pain testified to by claimant and

corroborated by others who have observed him.” Scharlow v. Schweiker, 655 F.2d 645, 649 (5th

Cir. 1981). Moreover, an ALJ’s “[f]ailure to indicate the credibility choices made and the basis for

those choices in resolving the crucial subsidiary fact of the truthfulness of subjective symptoms and

complaints requires reversal and remand [of the ALJ’s decision].” Id. However, a claimant’s

subjective description of pain or other symptoms may not, without more, be conclusive evidence of

disability. See 42 U.S.C. § 423(d)(5)(A). Rather, medical signs and findings must show a medical

impairment that results from abnormalities which could reasonably be expected to produce the pain

or other symptoms alleged and which would lead the ALJ to conclude that the individual is disabled.

Id. “At a minimum, objective medical evidence must demonstrate the existence of a condition that

could reasonably be expected to produce the level of pain or other symptoms alleged.” Anthony, 954

F.2d at 296. 

In this case, the ALJ specifically considered “whether or not the claimant has a disabling

impairment due to pain, as required by Social Security Ruling 96-7p and Luna v. Bowen, 834 F.2d

161 (10th Cir. 1987).”4

 (Tr. at 18.) He noted that “there is no evidence of any muscle atrophy,

 

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 Plaintiff lived with her husband and son. (Tr. at 321-22.) She did her own personal

care and dressing, laundry, some of the cooking, and some of the grocery shopping. (Id.) She

stayed awake all day, usually spending about eight hours a day in her recliner. (Id. at 339-40.) 

Her recreational activities and hobbies included reading, six hours of watching television, and

crocheting. (Id. at 102.) Her social activities included visiting friends or relatives. (Id. at 103.) 

She was able to drive locally. (Id.)

6

 For example, the consultative examiner, Dr. Howard, noted a discrepancy between the

way that Plaintiff walked when she knew she was being observed and the way she walked and

easily entered her truck when she did not realize anyone was watching her. (Tr. at 18.) 

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reduced joint motion, muscle spasm, or sensory and motor disruption.” (Id.) He further explained

that the neurologist’s extensive testing did not reveal why Petitioner should be experiencing such

pain. (Id.) He found Plaintiff’s subjective complaints of pain to be credible only to the extent that

they reduced her RFC to sedentary labor. (Id. at 19.)

The Appeals Council considered Plaintiff’s statements concerning pain in accordance with

Social Security Ruling 96-7p and adopted the ALJ’s conclusions. (Id. at 6.) The Appeals Council

further found that the subjective complaints “are not fully credible in light of the claimant’s own

description of her activities5

 and discrepancies between the claimant’s assertions and information

contained in the documentary reports.6 (Id.)

In Scharlow, the ALJ failed to make any findings of credibility; however, the subsequent

case of Little v. Schweiker interprets Scharlow as requiring the ALJ “to specifically address the

credibility” of the claimant’s corroborated testimony of subjective pain. Scharlow, 655 F.2d at 649;

Little v. Schweiker, 555 F. Supp. 541, 547 (N.D. Tex. 1982). This Court determines that the

Commissioner complied with Scharlow and Little because the ALJ and Appeals Council

“specifically address[ed] the credibility” of Plaintiff’s testimony and indicated “the credibility

choices made and the basis for those choices.” Scharlow, 655 F.2d at 649; Little, 555 F. Supp. at

 

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547. The Commissioner’s finding of a lack of credibility with respect to Plaintiff’s allegations that

her pain was disabling also conforms to other Fifth Circuit precedent. See Jones v. Bowen, 829 F.2d

524, 527 (5th Cir. 1987) (affirming the ALJ’s credibility determination because, in part, Plaintiff’s

search for employment did not support Plaintiff’s allegations of “severe, uncontrollable illness and

restriction of function for light work”). See also Jones v. Heckler, 702 F.2d 616, 621-22 (5th Cir.

1983) (holding that it is within the ALJ’s discretion to determine the disabling nature of pain); James

v. Bowen, 793 F.2d 702, 706 (5th Cir. 1986) (affording considerable judicial deference to the ALJ’s

findings regarding the debilitating effect of the subjective complaint).

This Court is not free to reweigh the evidence, retry the issues, or substitute its own judgment

for that of the ALJ. Greenspan, 38 F.3d at 236. “The decision of an ALJ 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.”). 

After reviewing the record to determine whether substantial evidence is present, the Court

finds that substantial evidence supports the Commissioner’s decision, and that the Commissioner

applied the correct legal standard in determining that Plaintiff’s pain was not disabling.

B. Plaintiff’s Claims That the Commissioner was Required to Recontact Dr.

Sundaram Regarding Plaintiff's Ability to Work on a Sustained Basis and to

Make a Specific Finding that Plaintiff Could "Maintain Employment”

Plaintiff contends that the ALJ was required to recontact Dr. Sundaram, the treating

neurologist who rendered an opinion that Plaintiff was "totally disabled" and "unable to work."

(Pl.'s Br. at 12-14.) She urges the record contains "a crucial evidentiary gap" because the ALJ did

 

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not obtain additional evidence from the treating physician regarding her ability to work on a

sustained basis or arrange a consultative examination. (Id.)

Significantly, an opinion that a claimant is disabled or unable to work is an opinion on the

legal issue that is reserved for the Commissioner, and accordingly, such an opinion by a physician

is never entitled to "controlling weight." See 20 C.F.R. § 404.1527(e). See also Frank v. Barnhart,

326 F.3d 618, 620 (5th Cir. 2003) (explaining that “some opinions by physicians are not medical

opinions, and as such have no ‘special significance’ in the ALJ's determination” (citing 20 C.F.R.

§ 404.1527(e) & (e)(3)) and that “[a]mong the opinions by treating doctors that have no special

significance are determinations that an applicant is ‘disabled’ or ‘unable to work’” (citing 20 C.F.R.

§ 404.1527(e)(1))). Accordingly, the ALJ must consider all medical opinions in determining the

disability status of a benefits claimant. 20 C.F.R. § 404.1527(b). However, an opinion on the

ultimate issue, such as the claimant’s disability status under the regulations, is reserved exclusively

to the ALJ. See 20 C.F.R. § 404.1527(e)(1). 

A treating physician will be recontacted when the evidence is inadequate for the

Commissioner to determine whether the claimant is disabled. 20 C.F.R. § 404.1512(e). 

Additionally, an ALJ needs to contact a treating source if the evidence does not support the treating

source's opinion on an issue reserved to the Commissioner and the adjudicator cannot determine the

basis of the opinion. SSR 96-5p. Dr. Sundaram's opinion is not ambiguous. It is unsupported by

the medical evidence in the record, including his own objective tests which showed only mild

sensory neuropathy and unremarkable sensory and motor examinations. (Tr. at 6, 7, 251.) The

Commissioner was not required to recontact Dr. Sundaram.

Plaintiff's argument that the Commissioner should have referred her for a consultative

 

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medical examination is meritless. The Commissioner referred Plaintiff to Dr. Howard for a

consultative examination. (Tr. at 6, 18, 184-89.) A second consultative examination was not

warranted because the ALJ and the Appeals Council did not need additional medical evidence and

clarification from Dr. Sudaram or any other treating physician.

Plaintiff's claim that the ALJ was required to make a specific finding that Plaintiff can

"maintain employment" is also without merit. The ALJ necessarily considers whether the claimant

will have the RFC to work full time on a regular and continuing basis when he makes the RFC

determination. The ALJ need not make a specific finding that a claimant can maintain employment

where, as in this case, her severe impairments are not of a sporadic nature. See Frank, 326 F.3d at

619 (holding that a specific finding that a claimant can maintain employment is required only if, by

its nature, the claimant's physical ailment waxes and wanes in its manifestation of disabling

symptoms).

C. Plaintiff's Claims that the Commissioner Made Flawed Findings with Respect

to Plaintiff’s RFC; Failed to Develop the Evidence with Respect to the Specific

Skills or Mental Demands of Her Work; and Failed to Consider Plaintiff’s

Additional Non-Exertional Limitations with Respect to Her Balance,

Concentration, and Speech

Plaintiff contends that the record contains a crucial evidentiary gap that casts into doubt the

existence of substantial evidence to support the Commissioner's decision denying Plaintiff's DIB

claim. (Pl.’s Br. at 12.) An administrative law judge has a duty to fully and fairly develop the facts

relative to a claim for disability benefits. See Brock v. Chater, 84 F.3d 726, 728 (5th Cir. 1996);

Kane v. Heckler, 731 F.2d 1216, 1219 (5th Cir. 1984). This Court will not reverse the decision of

an ALJ for failure to fully and fairly develop the record unless the claimant shows that he or she was

prejudiced by the ALJ's failure. See Brock, 84 F.3d at 728; Kane, 731 F.2d at 1220. To establish

 

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prejudice, a claimant must demonstrate that he or she "could and would have adduced evidence that

might have altered the result." Kane, 731 F.2d at 1220.

 First, Plaintiff claims that the non-examining state agency physician's assessments of

Plaintiff's RFC were made before Dr. Sundaram's report of January 2002 in which he concluded that

Plaintiff was totally disabled. (Pl.'s Br. at 12-13.) As the Court noted previously, the Appeals

Council properly discounted Dr. Sundaram's wholly conclusory opinion because it was unsupported

by the objective medical evidence in the record which showed only mild sensory neuropathy and

unremarkable sensory and motor examinations. (Tr. at 6, 7, 251.) The administrative law judge is

required to consider and evaluate any assessment of the individual’s RFC by a State agency medical

or psychological consultant and by other program physicians or psychologists. SSR 96-6p.

Furthermore, an ALJ “may not ignore these opinions and must explain the weight given to the

opinions in his decision.” Id. The Appeals Council noted that at the initial and reconsideration

determinations, the State agency medical consultants assessed a light RFC capacity. (Tr. at 6.) The

Appeals Council properly considered these findings to be expert medical opinions. (Id.) The ALJ

acknowledged that Plaintiff may experience symptoms related to the neuropathy and found that, as

a result, she had the RFC to do only sedentary, as opposed to light, medium, or heavy work. (Id. at

18.) The Appeals Council adopted the ALJ's findings or conclusions regarding the Plaintiff's ability

to perform a full range of sedentary work. (Id.) Plaintiff has not shown that the RFC findings were

flawed. Remand is not required because substantial evidence supports the Appeals Council's

findings, and the Appeals Council applied the correct legal standard in making this determination.

Further, Plaintiff has not demonstrated that she could and would have adduced evidence that might

have altered the result. 

 

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Next, Plaintiff contends remand is required because the record contains no comparison of

the physical or mental demands of her past work as required by Latham v. Shalala, 36 F.3d 482, 483

(5th Cir. 1994). (Pl.’s Br. at 15.) A claimant has the burden of proving an inability to do her past

relevant work. Hollis v. Bowen, 837 F.2d 1378, 1386 (5th Cir. 1988). In deciding whether a

claimant has the RFC to perform her past work, the Commissioner considers whether (1) she can

perform the work as she actually performed it in the past, or (2) if she is capable of performing the

job as is ordinarily required by employers throughout the national economy. Villa v. Sullivan, 895

F.2d 1019, 1022 (5th Cir. 1990).

In this case, the ALJ called upon the expertise of a VE. (Tr. at 324-26.) The value of a VE

is that he is familiar with the specific requirements of a particular occupation. Fields v. Bowen, 805

F.2d 1168, 1170 (5th Cir. 1986). This includes the working conditions and the attributes and skills

needed for a particular job. (Id.) A VE is able to compare all the unique requirements of a specified

job with a claimant’s severe impairments to reach a reasoned conclusion whether the claimant can

perform a specific job. Id. The VE in this case testified that Plaintiff's past work as a wafer

processor, telemarketer, and electronics assembler was semi-skilled, sedentary work, based upon

Plaintiff's description of how she performed these jobs in the past. (Tr. at 6, 324-35.) The Appeals

Council considered the mental and physical demands of Plaintiff's past relevant work, as explained

by the VE, in determining that Plaintiff could perform her past relevant work. Plaintiff failed to

meet her burden to prove that she could not perform her past work, and she was properly found not

disabled. See Greenspan, 38 F.3d at 236. Substantial evidence supports the Appeals Council's

decision at Step Four. Moreover, Plaintiff has not shown that she suffered prejudice.

 Finally, Plaintiff contends that the Commissioner failed to consider Dr. Sundaram’s opinion

 

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that Plaintiff’s had non-exertional limitations with respect to her balance, concentration, and speech.

(Pl.’s Br. at 16.) The Appeals Council rejected Dr. Sundaram’s opinion as conclusory and not

supported by objective findings. (Tr. at 6.) Additionally, the Appeals Council noted the

consultative examiner, Dr. Howard, found Plaintiff’s sensory and motor examination unremarkable.

(Id.) Substantial evidence supports the Commissioner’s decision. Further, Plaintiff has not shown

any prejudice. 

IV. Recommendation

For the foregoing reasons, the Court RECOMMENDS that the final decision of the

Commissioner be AFFIRMED.

Signed, August 30, 2005.

___________________________________

PAUL D. STICKNEY

UNITED STATES MAGISTRATE JUDGE

 

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INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

Pursuant to Title 28, United States Code, Section 636(b)(1), any party who desires to object

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

ten (10) 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 (1985).

Additionally, any failure to file written objections to the proposed findings, conclusions and

recommendation within ten (10) days after being served with a copy shall bar the aggrieved party

from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted

by the District Court, except upon grounds of plain error. Douglass v. United Servs. Auto. Ass’n,

79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).

___________________________________

PAUL D. STICKNEY

UNITED STATES MAGISTRATE JUDGE

 

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