ORDER CORRECTING AND ADOPTING MAGISTRATE JUDGE’S FINDINGS, CONCLUSIONS, AND RECOMMENDATION
On December 10, 2012; the United States magistrate judge issued his findings, conclusions, and recommendation in this case (“the findings”). In the findings, the magistrate judge recommended that the decision of the commissioner of the Social Security Administration of the United States (“the commissioner’.’) denying Plaintiffs claims for disability insurance benefits be affirmed. The magistrate judge’s order gave all parties until December 24 to serve and file with the Court written objections to his proposed findings.
Plaintiff filed her objections, asking this Court to reject the findings of the magistrate judge and either render judgment in Plaintiffs favor or remand the case to the commissioner for further proceedings. The commissioner did not file a response.
In her objections, Plaintiff argues that (1) the administrative law judge failed to properly consider the medical evidence that Plaintiff has severe mental impairments and significant nonexertional limitations, (2) her waiver of counsel was ineffective, and (3) the administrative law judge failed to properly evaluate credibility. (Obj. 1.) These issues will be reviewed de novo. See 28 U.S.C. § 636(b)(1); Fed. R.Civ.P. 72(b)(3). The Court notes that in his discussion of the commissioner’s weighing of the medical evidence, the magistrate judge stated: “With no records from any other treating or examining physician finding any more significant limitations on Andrews’ abilities, the Court cannot say that
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER
This case was referred to the United States Magistrate Judge pursuant to the provisions of Title 28, United States Code, Section 636(b). The Findings, Conclusions, and Recommendation of the United States Magistrate Judge are as follows:
FINDINGS AND CONCLUSIONS
I. STATEMENT OF THE CASE
Plaintiff Romona L. Andrews (“Andrews”) filed this action pursuant to Sections 405(g) and 1383(c)(3) of Title 42 of the United States Code for judicial review of a final decision of the Commissioner of Social Security denying her claims for disability insurance benefits (“DIB”) under Title II and supplemental security income (“SSI”) under Title XVI of the Social Security Act (“SSA”). Andrews applied for DIB and SSI on September 18, 2008, alleging that her disability began on April 1, 2004. (Tr. 40-41.)
After her application for benefits was denied initially and on reconsideration, Andrews requested a hearing before an administrative law judge (“ALJ”). (Tr. 40-43, 60-61.) The ALJ held a hearing on May 19, 2010, and issued an unfavorable decision on June 11, 2010. (Tr. 16-25, SO-SO.) On August 11, 2011, the Appeals Council denied Andrews’ request for review, leaving the ALJ’s decision as the final decision of the Commissioner in her case. (Tr. 1-5.) Andrews subsequently filed this civil action seeking review of the ALJ’s decision.
II. STANDARD OF REVIEW
Disability insurance is governed by Title II, 42 U.S.C. § 404 et seq., and SSI benefits are governed by Title XVI, 42 U.S.C. § 1381 et seq., of the SSA. In addition, numerous regulatory provisions govern disability insurance and SSI benefits. See 20 C.F.R. Pt. 404 (2012) (disability); 20 C.F.R. Pt. 416 (2012) (SSI). Although technically governed by different statutes and regulations, “[t]he law and regulations governing the determination of disability are the same for both disability insurance benefits and the SSL” Greenspan v. Shalala,
Before moving from the third to the fourth step of the inquiry, the Commissioner assesses the claimant’s residual functional capacity (“RFC”) to determine the most the claimant can still do notwithstanding her physical and mental limitations. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The claimant’s RFC is used at both the fourth and fifth steps of the sequential analysis. Id. §§ 404.1520(a)(4), 416.920(a)(4). At step four, the claimant’s RFC is used to determine if the claimant can still do her past relevant work. Id. §§ 404.1520(e), 416.920(e). At step five, the claimant’s RFC is used to determine whether the claimant can adjust to other types of work. Id. §§ 404.1520(e), 416.920(e). At steps one through four, the burden of proof rests upon the claimant to show that she is disabled. Crowley,
A denial of disability benefits is reviewed only to determine whether the Commissioner applied the correct legal standards and whether the decision is supported by substantial evidence in the record as a whole. Leggett v. Chater,
III. ISSUES
Andrews presents the following issues:
1. Whether the ALJ protected the due process rights of Andrews, an unrepresented claimant;
2. Whether the Commissioner applied proper legal standards and considered all of Andrews’ “severe” impairments; and
3. Whether the Commissioner properly-evaluated Andrews’ credibility.
(Pl.’s Br. 1.)
IV. ALJ DECISION
In his June 11, 2010 decision, the ALJ concluded that Andrews was not disabled within the meaning of the SSA. (Tr. 25.) In making his determination, the ALJ proceeded to follow the five-step sequential evaluation process. At the first step, the ALJ found that Andrews had engaged in substantial gainful activity by being employed as a caregiver from August 2006 to June 20, 2008. (Tr. 18.) The ALJ also found, however, that there had been continuous twelve-month periods since the alleged disability onset date (April 1, 2004) during which Andrews had not engaged in substantial gainful activity. (Tr. 19.) At the second step, the ALJ found that Andrews “had the following severe impairments: a history of hypertension, asthma, thoracic spondylosis, degenerative disc disease L3-L4, adjustment disorder with depressed mood, a history of cocaine dependence in sustained full remission, and obesity.” (Tr. 19.) At the third step, the ALJ found that Andrews’ severe impairments did not meet or equal in severity to an impairment contained in the Listing. (Tr. 19.)
The ALJ then found that Andrews had the residual functional capacity to perform light work, with the limitation that the work must be performed “in an environment that is free of fumes, odors, dusts, gases, poor ventilation, etc.” (Tr. 23.) Next, at the fourth step, the ALJ found that Andrews could perform her past relevant work as a “customer service clerk/ sales clerk inside a bookstore.” (Tr. 24.) Accordingly, the ALJ found that Andrews had not been under a disability at any time from April 1, 2004, through the date of the decision. (Tr. 25.)
V. DISCUSSION
A. Did the Commissioner Apply Proper Legal Standards and Consider All of Andrews’ Severe Impairments?
1. Andrews’ Mental Impairments
a. Fifth Circuit’s Severity Standard
In her second issue,
The Fifth Circuit, however, has held that a literal application of that definition is inconsistent with the statutory language and legislative history of the SSA. See Stone,
Most courts in this district have repeatedly held that severity standards that deviate from the specific Stone language do not comply with the requisite standard set forth in Stone. See, e.g., Boone v. Comm’r of Soc. Sec. Admin., No. 3:11-CV-813-BF,
While a case will not be remanded simply because the ALJ did not use “magic words,” remand is required when there is no indication that the ALJ applied the correct standard. Hampton v. Bowen, 785 F.2d 1308, 1311 (5th Cir.1986); see also McNair v. Comm’r of Soc. Sec. Admin.,
b. ALJ’s Application of the Severity Standard in the Present Case
Citing the regulations and Social Security Rulings, the ALJ first stated in his opinion that an impairment is severe “if it significantly limits an individual’s ability to perform basic work activities.” (Tr. 17.) The ALJ then stated that an impairment is not severe “when medical and other evidence establish only a slight abnormality or a combination of slight abnormalities that would have no more than a minimal effect on an individual’s ability to work.” (Tr. 17.) The ALJ then proceeded to follow the five-step procedure and analyzed the severity of Andrews’ history of hypertension, asthma, thoracic spondylosis, degenerative disc disease L3-L4, adjustment disorder with depressed mood, history of cocaine dependence in sustained full remission, and obesity. (Tr. 19.) The ALJ first found all these impairments to be severe because they “would have more than a slight effect on her ability to work.” (Tr. 19.)
At step three, however, the ALJ fully evaluated Andrews’ mental impairments (adjustment disorder with depressed mood and cocaine dependence in sustained full remission) pursuant to the “technique”
[T]he record establishes her depressive syndrome characterized by sleep disturbance, psychomotor agitation or retardation, decreased energy, and feelings of guilt or worthlessness present no restriction of activities of daily living; no difficulties in maintaining social functioning; mild difficulties in maintainingconcentration, persistence, or pace; and she has no episodes of decompensation each of extended duration.
(Tr. 23.) Andrews contends that, although the ALJ cited Stone, he also stated and applied an incorrect standard for evaluating the severity of her mental impairments. Accordingly, Andrews argues that the ALJ erred by making this specific finding that her mental impairments were not severe. (Pl’s Br. 12-13.)
In this case, the ALJ cited Stone in his step-three analysis of the severity of Andrews’ mental impairments. (Tr. 23.) However, earlier in his decision, the ALJ recited a regulatory definition of severity that the Fifth Circuit in Stone had specifically rejected. Furthermore, the ALJ stated at step two that Andrews’ severe impairments “would have more than a slight effect on her ability to work” and at step three that Andrews’ mental impairments did not have “more than [a] minimal effect on her ability to perform basic work-related mental activities.” (Tr. 19, 23) (emphasis added). In this way, the ALJ was less than clear in his language regarding the severity standard he employed in this case.
As stated above, under the Stone standard, an impairment that causes any interference with work ability, even minimal interference, is severe. In this case, however, the ALJ’s cited severity-standard language could require at least a “minimal effect” on work ability before a severe impairment can be found. Therefore, even though the ALJ cited Stone, his simultaneous citation to and application of other incorrect severity-standard language creates ambiguity. See Neal v. Comm’r of Soc. Sec. Admin., No. 3:09-CV-522-N,
It is well-established law that a case will not be remanded simply because the ALJ did not use “magic words,” and the undersigned has recommended to affirm when an ALJ has cited conflicting severity standards but the decision as a whole makes clear that the ALJ did, in fact, use the appropriate severity standard. See Andrade v. Astrue, No. 4:11-CV-318-Y,
Accordingly, with regard to Andrews’ mental impairments, the Court must examine the ALJ’s decision as a whole to determine whether the ALJ actually applied the Stone standard that he cited at the end of his step-three analysis. Although the reg
The ALJ followed the technique in this case in determining that Andrews’ mental impairments were not severe, specifically finding that Andrews had either no or only mild restrictions in the first three functional areas, and none in the fourth. (Tr. 23.) Consequently, the Court concludes, based on the specific facts of this case, that the ALJ’s analysis of Andrews’ mental impairments under the technique is sufficient to avoid reversal pursuant to Stone and its progeny.
c. Evidence Supporting- ALJ’s Finding of Nonseverity
Having concluded that the ALJ applied the correct standard to evaluate Andrews’ mental impairment, the Court now turns to the question of whether substantial evidence exists to support the ALJ’s conclusion that Andrews’ mental impairment was not severe. On April 25, 2009, Andrews underwent a psychological and mental status exam with a consulting physician, Dr. Jason Simpson, Psy.D (“Dr. Simpson”). (Tr. 333-38.) Andrews reported an onset of depression in 2004 or 2005 related to physical problems that had also begun at that time. (Tr. 333.) She reported that her appetite had increased and that she had gained sixty-five pounds over the past year. (Tr. 333.) She complained of a decreased ability to sleep due to physical pain, averaging four to five hours of sleep per night. (Tr. 333.) She stated that she had “[s]ome loss of interest in previously rewarding behaviors and relationships, but also due to physical demands.” (Tr. 333.)
Dr. Simpson observed that Andrews had a depressed mood and flat affect but that she also had unremarkable motor activity, clear speech, and the ability to respond to prompts as given. (Tr. 334.) Her abstract thought was average, and her concrete thought was fair. (Tr. 335.) She had average judgment and contact with reality, but her memory “appeared] generally to be mildly impaired.” (Tr. 335-36.) Based on this exam, Dr. Simpson diagnosed Andrews with chronic adjustment disorder with depressed mood and cocaine dependence in sustained full remission, and he assessed a GAF score of 41.
On April 29, 2009, Robert B. White, Ph.D. (“Dr. White”), a State agency psy
Dr. White also filled out a Psychiatric Review Technique form noting Andrews’ diagnosis of adjustment disorder with depressed mood as well as cocaine dependence in sustained full remission. (Tr. 342, 347.) In the first three of the four functional areas, Dr. White found Andrews to be mildly limited in her activities of daily living; mildly limited in social functioning; and moderately limited in concentration, persistence, or pace. (Tr. 349.) In the fourth functional area, Dr. White found no episodes of decompensation. (Tr. 349.) Dr. White noted that Andrews had no history of inpatient admissions or emergency room visits for mental problems. (Tr. 351.) Dr. White reviewed Dr. Simpson’s exam findings and stated that the GAF score of 41 “appealed] low” in light of the exam findings, Andrews’ activities of daily living, and lack of longitudinal medical evidence. (Tr. 351.)
In his decision, the ALJ reviewed Dr. Simpson’s exam findings and stated as follows: “Although the consultative examiner presented a subjective GAF score of 41 indicating serious symptoms, he also reported [that] no tests were administered[,] and a GAF score is a completely subjective measure of a claimant’s ability to function in the psychological, social, and occupational areas of life.” (Tr. 23) (emphasis in original). The ALJ’s decision did not discuss Dr. White’s evaluations at all. Andrews argues that the ALJ improperly evaluated the evidence because he did not give appropriate explanations for rejecting these medical opinions. (Pl.’s Br. 15; Reply 4.) The Court disagrees.
The regulations require an ALJ to give controlling weight to a treating source’s opinion if it is “well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence.” 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). If the ALJ does not give the treating source’s opinion controlling weight, he must apply the factors listed in sections 404.1527(c) and 416.927(c) to determine what weight to give to the opinion. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). However, Andrews points to no evidence in the record of any opinion from a treating physician regarding her mental impairments, or even any evidence that she had ever been treated for her mental impairments during the period of alleged disability.
Andrews complains that the ALJ rejected the GAF score of 41 assigned by Dr. Simpson without sufficient explanation. (Pl.’s Br. 15.) On the contrary, the ALJ recounted the content of Dr. Simpson’s report and then pointed out that the GAF score was a subjective measurement that Dr. Simpson had assessed without administering any psychological tests to Andrews. (Tr. 337.) An ALJ may give less weight to a medical source opinion that is not well supported by relevant evidence, particularly medical signs and laboratory findings, such as diagnostic testing. See 20 C.F.R. §§ 404.1527(c)(3), 416.927(c)(3). Furthermore, a GAF score is not determinative of a claimant’s ability to work. See Fuller v. Astrue, No. 4:09-CV-197-A,
Andrews also complains that the ALJ did not fully consider the limitations reported by the State agency physician. (Pl.’s Br. 13.) However, ALJs “are not bound by any findings made by State agency medical or psychological consultants.” 20 C.F.R. §§ 404.1527(f)(2)(i), 416.927(f)(2)(i). Further, any conflicts in the evidence, including medical opinions, are resolved by the ALJ, not the courts.
This single medical record, prepared after a single one-hour visit with Andrews, is the sole medical evidence contained in the transcript prepared by an examining medical source. While the State agency consultant opined that Andrews had some moderate work-related mental limitations, he had no treating or examining relationship with Andrews and had only Dr. Simpson’s exam upon which to base his opinion. See 20 C.F.R. §§ 404.1527(c), 416.927(c) (stating that more weight is given to opinions of examining or treating sources and opinions that are more supported by medical evidence and consistent with the record as a whole). With no records from any other treating or examining physician finding any more significant limitations on Andrews’ abilities, the Court cannot say that no credible evidentiary choices or medical findings support the ALJ’s decision to give Dr. Andrews’ opinion less weight. Substantial evidence thus supports the ALJ’s finding that Andrews’ mental impairments do not affect her ability to perform work-related activities and, thus, are not severe.
2. Andrews’ Physical Impairments
Andrews also argues that the ALJ’s RFC determination is not supported by substantial evidence because the ALJ improperly evaluated the medical opinion evidence with regard to her physical impairments. The ALJ found that Andrews retained the RFC to perform light work, provided that she performed her job duties in an environment that is free from fumes, odors, dusts, gases, poor ventilation, and so forth. (Tr. 23.) “Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing.” 20 C.F.R. §§ 404.1567(b), 416.967(b).
In his decision, the ALJ recounted the medical evidence of Andrews’ physical impairments, beginning with a February 2007 emergency room visit for complaints of swelling in the right leg and popping in the right knee. (Tr. 20.) Andrews visited emergency rooms multiple times in 2007 and 2008 for allergic reactions with symptoms of shortness of breath and itching. (Tr. 20.) At one of these emergency room visits, in September 2008, Andrews reported chest pain. It resolved spontaneously, and a stress myocardial perfusion test revealed no significant abnormalities. (Tr. 20.) She was diagnosed with atypical chest pain, gastrointestinal reflux disease, severe multiple food allergies, hypertension, morbid obesity, and tobacco addiction. (Tr. 20.)
In November 2008, Andrews was evaluated by a physician in conjunction with her request for an allergy referral. (Tr. 20.) Andrews also requested medication for back pain, claiming that over-the-counter medications were not helping. (Tr. 20.) The physical exam revealed high blood pressure and obesity but no significant
On March 19, 2009, Andrews underwent a consultative internal medicine exam performed by Rima Bishara, M.D. (“Dr. Bishara”). (Tr. 21, 318.) Dr. Bishara diagnosed Andrews with hypertension, asthma, and obesity. (Tr. 315.) Dr. Bishara noted that Andrews complained of low back pain but that her subjective complaints were much worse than the objective findings, and there was “[ejvidence of quite prominent symptom magnification.” (Tr. 315.) Lower extremity active testing revealed weakness, but this was “inconsistent with other findings!!,] including her entry and exit from the office with little difficulty.” (Tr. 315.) Based on the objective findings, Dr. Bishara opined that Andrews could sit 2/3 of an eight-hour day; stand 1/3 of an eight-hour day; move 1/3 of an eight-hour day; bend, stoop, and squat 1/3 of an eight-hour day; lift and carry twenty pounds occasionally and ten pounds frequently; and climb occasionally. (Tr. 315-16.) Dr. Bishara also opined that Andrews should avoid all exposure to “extremes of heat/cold/dust/fumes/etc.” and unprotected heights.
State agency consultant Kavitha Reddy, M.D. (“Dr. Reddy”) performed a nonexamining physical RFC assessment on April 30, 2009, and, consistent with Dr. Bishara’s opinion, opined that Andrews could lift and carry twenty pounds occasionally and ten pounds frequently. (Tr. 357-58.) Dr. Reddy opined that Andrews could stand and walk about 2/3 of an eight-hour day and sit about 2/3 of an eight-hour day. (Tr. 358.) Dr. Reddy assessed postural limitations, opining that Andrews could frequently balance and frequently climb ramps and stairs but that she could only occasionally stoop, kneel, crouch, crawl, and climb ladders, ropes, and scaffolds. (Tr. 359.) Dr. Reddy also opined that Andrews should avoid concentrated exposure to hazards and to fumes, odors, dusts, gases, poor ventilation, and so forth. (Tr. 361.)
In October 2009, Andrews was evaluated by a neurosurgeon, whose impression was that Andrews’ back pain was due to degenerative disc disease in the lower lumbar spine. (Tr. 22, 399.) Andrews’ motor examination showed upper-extremity strength of 5/5 throughout and lower-extremity strength of 4 + out of 5; the neurosurgeon noted, however, that “[t]his exam is somewhat limited by pain and patient effort.” (Tr. 22, 398.) Deep tendon reflexes were 2 + and symmetric. The sensory exam showed Andrews to be grossly intact to light touch, although Andrews noted altered sensations in her legs. (Tr. 22, 398.) Although Andrews’ gait was “slow and antalgic,” it was “non-ataxic.”
The ALJ had opinions before him from two medical sources that specifically addressed Andrews’ abilities to sit, stand, and walk: one by Dr. Bishara, the consultative examiner, stating that Andrews’ walking and standing was limited to one-third of an eight-hour day, and the other by Dr. Reddy, the State agency consultant, stating that Andrews could stand and walk for two-thirds of an eight-hour day and sit for two-thirds of an eight-hour day.
Because the ALJ found that Andrews could perform light work, he implicitly accepted Dr. Reddy’s opinion that Andrews could stand and walk for two-thirds of the day and rejected Dr. Bishara’s opinion that she could stand and walk for only one-third of the day. In so doing, the ALJ properly exercised his duty to resolve conflicts in the evidence. See Newton,
This explanation also gives the ALJ’s reasons for deciding not to include the postural limitations identified by Dr. Reddy. Although the record contained many complaints by Andrews of back pain, the ALJ observed that the record contained no objective signs of an incapacitating impairment. (Tr. 24.) With nontreating physicians’ opinions, an ALJ is free to incorporate only those limitations that he finds “consistent with the weight of the evidence as a whole.” Hernandez v. Astrue,
B. Did the ALJ Protect the Due Process Rights of Andrews, an Unrepresented Claimant?
In her first issue, Andrews argues that the ALJ did not protect her due process rights because he inadequately informed her of her right to counsel and, consequently, her decision to proceed pro se was invalid. (Pl.’s Br. 7.) Of course, there is no constitutional right to counsel at a social security hearing. See Brandyburg v. Sullivan,
Thereafter, at the beginning of the May 19, 2010 hearing, the following exchange took place between the ALJ and Andrews:
ALJ: Do you understand that you do have a right to an attorney or some other representative?
CLMT [Andrews]: Yes, I do.
ALJ: Is it your desire to go ahead by yourself today?
CLMT: Yes.
(Tr. 32.) Andrews complains that her waiver of counsel was invalid because, at the hearing, the ALJ did not orally provide her with sufficient information to decide whether to proceed pro se, did not ask whether Andrews had had an opportunity to obtain counsel, and did not offer to postpone the hearing to allow her to obtain counsel. (Pl.’s Br. 8.)
“An ALJ should provide pre-hearing written notification of a claimant’s right to counsel, and also ascertain at the hearing whether the claimant had a ‘meaningful opportunity to secure counsel and, if not, consider adjourning the hearing to provide that opportunity.’ ” Ivanova v. Astrue, No. 3:09-CV-2349-K,
Similarly, here, Andrews received prehearing written notices that adequately informed her of ways in which her attorney could assist her, the possibility of free counsel or a contingency arrangement, and the limitation on attorney’s fees to twenty-five percent of past due benefits. This prehearing notice contained the “sufficient information” necessary to allow Andrews to make an intelligent decision on the issue of retaining counsel. See Norden,
Furthermore, even if the Court assumed that Andrews did not validly waive her right to counsel, remand still would not be required because Andrews cannot show how the presence of an attorney would have changed the ALJ’s determination. Citing to Bowling v. Shalala, Andrews argues that the lack of a cross-examination of the vocational expert (“VE”) prejudiced her because the hypothetical questions that the ALJ posed to the VE did not incorporate the mental limitations found by Dr. White and the physical limitations found by Dr. Reddy and Dr. Bishara.
By complaining that the hypothetical question did not include the limitations
C. Did the Commissioner Properly Evaluate Andrews’ Credibility?
When medical evidence shows that a claimant has a medically determinable impairment that could reasonably be expected to produce the claimant’s symptoms, including pain, the ALJ then must evaluate the “intensity and persistence” of the claimant’s symptoms to determine how the symptoms limit the claimant’s capacity for work. 20 C.F.R. §§ 404.1529(c)(1), 416.929(c)(1); see also SSR 96-7p, 61 Fed.Reg. 34483, 34484 (July 2,1996). The ALJ must consider all of the available evidence, including: (1) the claimant’s history; (2) signs and laboratory findings; and (3) statements from the claimant, treating or nontreating sources, or other persons about how the symptoms affect the claimant. 20 C.F.R. §§ 404.1529(c)(1), 416.929(c)(1). The ALJ may consider various factors relevant to a claimant’s credibility, including: (1) the claimant’s daily activities; (2) the location, duration, frequency, and intensity of the pain or other symptoms; (3) precipitating and aggravating factors; (4) the type, dosage, effectiveness, and side effects of any medication that the claimant takes or has taken to alleviate pain or other symptoms; (5) treatment, other than medication, that the claimant receives or has received for relief of pain or other symptoms; (6) any measures used to relieve pain or other symptoms; and (7) any other factors concerning the claimant’s functional limitations and restrictions due to pain or other symptoms. Id. §§ 404.1529(c)(3), 416.929(c)(3). “The reasons for the credibility finding must be grounded in the evidence and articulated in the determination or decision.” SSR 96-7p, 61 Fed.Reg. at 34486.
In his review of the evidence, the ALJ observed that physical exams in 2007 and 2008 consistently revealed no significant abnormalities in Andrews’ heart or back function. (Tr. 20.) The ALJ also noted Dr. Bishara’s observations that although Andrews “complained of great pain with the lightest touch to her back, she had no significant abnormalities.... Specifically, examination of her back revealed no deformities, no kyphosis, no scoliosis, no trigger points, and no spasms.” (Tr. 21.) Andrews had normal heel to toe walking, normal ability to get in and out of a chair without difficulty, and normal ability to get on and off the examination table without difficulty. (Tr. 21.) Although Andrews had lower extremity weakness on active testing, this was “inconsistent with other findings including her entry and exit from the office with little difficulty.” (Tr. 21.) Dr. Bishara assessed Andrews’ subjective complaints of low back pain to be “much worse than [the] objective findings” and found that there was “evidence of quite prominent symptom magnification.” (Tr. 21.)
The ALJ also discussed Andrews’ hearing testimony, noting that Andrews claimed that she was unable to work due to back pain. (Tr. 19, 37.) Andrews claimed that conservative treatment, including epidural steroid injections that she
In his decision, the ALJ stated as follows:
I find that, despite the impairment and actual functional limitations, neither the objective medical evidence or any other non-medical evidence establishes that the claimant’s ability to function is so severely impaired as to preclude the performance of all work activities. Therefore, I will consider subjective complaints credible only to the extent that they are supported by the evidence of record as summarized within the text of this Decision.
(Tr. 24.) Andrews argues that this statement shows that the ALJ failed to consider the relevant factors listed above. (Pl.’s Br. 17.) The Court disagrees because, as detailed above, the ALJ’s decision as a whole reveals that he considered all the evidence, including Andrews’ history, medical records, medical opinions, and Andrews’ own testimony, before concluding that Andrews’ subjective complaints were not credible to the extent that she alleged.
Andrews also complains that the ALJ failed to consider the possibility of a mental impairment as the basis for Andrews’ perception of her symptoms and pain. (Pl.’s Br. 17; Reply 4.) In support of this argument, Andrews relies upon SSR 88-13, an out-of-date ruling superseded by SSR 95-5p, which in turn was superseded by SSR 96-7p. See SSR 95-5p, 60 Fed.Reg. 55406, 55406 (Oct. 31, 1995) (superseding SSR 88-13); SSR 96-7p, 61 Fed.Reg. 34483, 34484 (July 2, 1996) (superseding SSR 95-5p). To the extent that Andrews argues that her pain symptoms are the result of a mental impairment, the Court has already determined that substantial evidence supports the ALJ’s determination that Andrews’ adjustment disorder with depressed mood is not severe. At most, there is evidence of a diagnosis of a mental impairment, but Andrews directs the Court to no evidence indicating that it affected her perception of pain.
Finally, Andrews argues that the ALJ failed to evaluate the effect of her obesity upon her functional abilities or the impact of symptoms of obesity, including pain. (Pl.’s Br. 17-18.) However, the ALJ acknowledged Andrews’ obesity and stated that he had considered SSR 02-10p, as well as the effect of Andrews’ obesity and pain, in deciding her functional capacity. (Tr. 23.) See SSR 02-1p, 67 Fed.Reg. 57859 (Sept. 12, 2002) (providing guidance on the evaluation of disability claims involving obesity). Again, Andrews does not direct the Court to any evidence showing that her obesity caused any functional limitations that were not accounted for in the RFC assessment or otherwise affected her abilities beyond the level acknowledged by the ALJ. Accordingly, the Court concludes that the ALJ’s review of the medical evidence and Andrews’ activities of daily living, coupled with the consultative doctor’s observations of “subjective complaints
RECOMMENDATION
It is recommended that the Commissioner’s decision be affirmed.
NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSIONS, AND RECOMMENDATION AND CONSEQUENCES OF FAILURE TO OBJECT
Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific written objections in the United States District Court to the United States Magistrate Judge’s proposed findings, conclusions, and recommendation within fourteen (14) days after the party has been served with a copy of this document. The United States District Judge need only make a de novo determination of those portions of the United States Magistrate Judge’s proposed findings, conclusions, and recommendation to which specific objection is timely made. See 28 U.S.C. § 636(b)(1). Failure to file by the date stated above a specific written objection to a proposed factual finding or legal conclusion will bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any such proposed factual findings and legal conclusions accepted by the United States District Judge. See Douglass v. United Servs. Auto Ass’n,
ORDER
Under 28 U.S.C. § 636, it is hereby ORDERED that each party is granted until December 24, 2012, to serve and file written objections to the United States Magistrate Judge’s proposed findings, conclusions, and recommendation. It is further ORDERED that if objections are filed and the opposing party chooses to file a response, the response shall be filed within seven (7) days of the filing date of the objections.
It is further ORDERED that the above-styled and numbered action, previously referred to the United States Magistrate Judge for findings, conclusions, and recommendation, be and hereby is returned to the docket of the United States District Judge.
Notes
. For ease of discussion, the Court will discuss Andrews’ second issue, which challenges the ALJ’s findings regarding the degree of Andrews’ impairments, at the outset.
. An ALJ must follow mandatory steps known as the “technique” when evaluating the severity of mental impairments in claimants. 20 C.F.R. §§ 404.1520a(a), 416.920a(a). The regulations require the ALJ to evaluate the degree of functional loss resulting from the claimant's mental impairments. 20 C.F.R. §§ 404.1520a(b)(2), 416.920a(b)(2). If an impairment is found, the ALJ must evaluate the claimant’s limitations in four functional areas: 1) activities of daily living; 2) social functioning; 3) concentration, persistence, or pace; and 4) episodes of decompensation. 20 C.F.R. §§ 404.1520a(c)(3), 416.920a(c)(3). The degree of limitation in the first three functional areas is rated on a five-point scale, which includes none, mild, moderate, marked, and extreme. 20 C.F.R. §§ 404.1520a(c)(4), 416.920a(c)(4). The degree of the fourth functional area is rated on a four-point scale, which includes none, one or two, three, and four or more. 20 C.F.R. §§ 404.1520a(c)(4), 416.920a(c)(4).
. The Court recognizes that the ALJ first stated at step two that he found Andrews’ mental impairments to be severe, then stated the opposite at step three when he found that Andrews' mental impairments were not severe. The Court disagrees, however, that this makes the ALJ’s decision ambiguous. (Pl.’s Reply 3.) At step two, the ALJ merely included Andrews’ mental impairments in a list of “severe” impairments with no further details or specific discussion regarding her mental impairments. But at step three, the ALJ thoroughly reviewed the evidence, applied the technique, and specifically cited Stone to conclude that Andrews’ mental impairments were not severe. Accordingly, this detailed analysis finding Andrews’ mental impairments to be nonsevere does not make the ALJ’s severity determination ambiguous, — it merely shows that the ALJ’s inclusion of Andrews’ mental impairments in his earlier list of severe impairments at step two was an oversight or mistake. The ALJ’s decision as a whole makes clear that the ALJ did not consider Andrews’ mental impairments to be severe.
. See also Holman v. Astrue, No. 2:06-CV-0238,
. The Court is aware that the technique used in evaluating mental impairments and cited to by the ALJ contains language that is inconsistent with the severity standard set forth in Stone. See 20 C.F.R. §§ 404.1520a, 416.920a ("If we rate the degree of your limitation in the first three functional areas as "none” or "mild” and "none” in the fourth area, we will generally conclude that your impairment(s) is not severe, unless the evidence otherwise indicates that there is more than a minimal limitation in your ability to do basic work activities....”). The Court is not suggesting that an ALJ’s reference to the technique set forth in sections 404.1520a and 416.920a will, in every case, lead to the same result that remand is not required.
. The Global Assessment of Functioning (GAF) scale rates psychological, social, and occupational functioning on a scale of 0 to 100. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 34 (4th ed. text rev. 2000) [hereinafter “DSM-IV-TR"]. A GAF code of 41-50 indicates "[s]erious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job).” Id.
. Andrews testified at the hearing that she had "[gone] through detox or [gone] through rehab” for cocaine addiction over ten years ago. (Tr. 34-35.)
. The harmless error doctrine applies in Social Security disability cases. See Morris v. Bowen,
. An antalgic gait is "a characteristic gait resulting from pain on weightbearing in which the stance phase of gait is shortened on the affected side,” i.e., a limp. Gait, in Stedman’s Medical Dictionary (27th ed. 2000), available at STEDMANS 156940 (Westlaw). An ataxic gait is "wide-based gait with lateral veering, unsteadiness, and irregularity of steps; often with a tendency to fall to one or other side, forward or backward.” Id.
. Andrews complains that the ALJ failed to refer to the functional capacity evaluations of the State agency medical consultants, but the mere fact that the ALJ did not explicitly mention the State agency medical consultants’ opinions does not prove that he did not consider them in formulating Andrews' RFC. See Hammond, 124 Fed.Appx. at 851. The ALJ stated that he had assessed Andrews’ RFC ”[a]fter careful consideration of the entire record” and that he had considered the opinion evidence in accordance with the regulations and the SSA's own policy rulings. (Tr. 23.) It is clear that the ALJ was aware of the State agency medical consultants' opinions because he had specifically mentioned earlier in his decision, at step three, that he had considered them.
. Andrews also argues that Dr. Reddy reported environmental limitations that the ALJ failed to consider. (Pl.'s Br. 14.) Dr. Reddy recommended that Andrews avoid concentrated exposure to "fumes, odors, dusts, gases, poor ventilation, etc.” and "hazards (machinery, heights, etc.).” (Tr. 361.) The ALJ did incorporate most of these limitations with his finding that Andrews could perform light work "in an environment that is free of fumes, odors, dusts, gases, poor ventilation, etc.” (Tr. 23.) The ALJ did not limit Andrews to working in an environment that is free from "hazards,” but again, Andrews fails to direct the Court to any objective medical signs and laboratory findings in the record that would support the imposition of this limitation.
. The Fifth Circuit has recognized that prehearing written notice may not always be adequate. See Benson v. Schweiker,
. Cf. Shelton v. Astrue, No. 4:11-CV-264-Y,
In addition, Plaintiff relies on Gullett v. Chater,