KAREN L. HAYES, Magistrate Judge.
Before the court is plaintiff's petition for review of the Commissioner's denial of social security disability benefits. The district court referred the matter to the undersigned United States Magistrate Judge for proposed findings of fact and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and (C). For the reasons assigned below, it is recommended that the decision of the Commissioner be
Mickie Jarnevich protectively filed the instant application for Title II Disability Insurance Benefits on April 4, 2016. (Tr. 70, 144-149). He alleged disability as of July 1, 2015, because of a herniated/cracked disc in his lower back. (Tr. 172, 182). The state agency denied the claim at the initial stage of the administrative process. (Tr. 70-81, 84-87). Thereafter, Jarnevich requested and received a May 16, 2017, hearing before an Administrative Law Judge ("ALJ"). (Tr. 41-69). However, in an August 25, 2017, written decision, the ALJ determined that Jarnevich was not disabled under the Social Security Act, finding at step five of the sequential evaluation process that he was able to make an adjustment to other work that exists in significant numbers in the national economy. (Tr. 26-37). Jarnevich appealed the adverse decision to the Appeals Council. On July 21, 2018, however, the Appeals Council denied Jarnevich's request for review; thus the ALJ's decision became the final decision of the Commissioner. (Tr. 1-3).
On August 29, 2018, Jarnevich sought review before this court. He alleges three discrete errors:
Following the submission of briefs, the matter is ripe.
This court's standard of review is (1) whether substantial evidence of record supports the ALJ's determination, and (2) whether the decision comports with relevant legal standards. Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990). Where the Commissioner's decision is supported by substantial evidence, the findings therein are conclusive and must be affirmed. Richardson v. Perales, 402 U.S. 389, 390 (1971). The Commissioner's decision is not supported by substantial evidence when the decision is reached by applying improper legal standards. Singletary v. Bowen, 798 F.2d 818 (5th Cir. 1986). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. at 401. Substantial evidence lies somewhere between a scintilla and a preponderance. Muse v. Sullivan, 925 F.2d 785, 789 (5th Cir. 1991). A finding of no substantial evidence is proper when no credible medical findings or evidence support the ALJ's determination. Johnson v. Bowen, 864 F.2d 340, 343-44 (5th Cir. 1988). The reviewing court may not reweigh the evidence, try the issues de novo, or substitute its judgment for that of the Commissioner. Greenspan v. Shalala, 38 F.3d 232, (5th Cir. 1994).
Pursuant to the Social Security Act (ASSA"), individuals who contribute to the program throughout their lives are entitled to payment of insurance benefits if they suffer from a physical or mental disability. See 42 U.S.C. § 423(a)(1)(D). The SSA defines a disability as the Ainability 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). Based on a claimant's age, education, and work experience, the SSA utilizes a broad definition of substantial gainful employment that is not restricted by a claimant's previous form of work or the availability of other acceptable forms of work. See 42 U.S.C. § 423(d)(2)(A). Furthermore, a disability may be based on the combined effect of multiple impairments which, if considered individually, would not be of the requisite severity under the SSA. See 20 C.F.R. § 404.1520(a)(4)(ii).
The Commissioner of the Social Security Administration has established a five-step sequential evaluation process that the agency uses to determine whether a claimant is disabled under the SSA. See 20 C.F.R. §§ 404.1520, 416.920. The steps are as follows,
See Boyd v. Apfel, 239 F.3d 698, 704-705 (5
The claimant bears the burden of proving a disability under the first four steps of the analysis; under the fifth step, however, the Commissioner must show that the claimant is capable of performing work in the national economy and is therefore not disabled. Bowen v. Yuckert, 482 U.S. 137, 146 n. 5 (1987). When a finding of Adisabled" or Anot disabled" may be made at any step, the process is terminated. Villa v. Sullivan, 895 F.2d 1019, 1022 (5th Cir. 1990). If at any point during the five-step review the claimant is found to be disabled or not disabled, that finding is conclusive and terminates the analysis. Lovelace v. Bowen, 813 F.2d 55, 58 (5th Cir. 1987).
The ALJ determined at step one of the sequential evaluation process that the claimant had not engaged in substantial gainful activity during the relevant period. (Tr. 31). At step two, she found that the claimant suffered severe impairments of lumbar stenosis and lumbar radiculopathy. (Tr. 31-32).
The ALJ next determined that the claimant retained the residual functional capacity ("RFC") to perform light work,
With the assistance of a vocational expert ("VE"), the ALJ determined at step four that the claimant was unable to perform his past relevant work. (Tr. 35-36). Accordingly, she proceeded to step five. At this step, the ALJ determined that the claimant was an individual closely approaching advanced age, with a limited education, and the ability to communicate in English. Id. Transferability of skills was not an issue. Id.
The ALJ then observed that given the claimant's vocational factors, and if he had an RFC that did not include any non-exertional limitations, then the Medical-Vocational Guidelines would direct a finding of not disabled. 20 C.F.R. § 404.1569; Rules 202.11, Table 2, Appendix 2, Subpart P, Regulations No. 4; Tr. 36-37. However, because the claimant's RFC did include non-exertional limitations, the ALJ consulted the VE to determine whether, and to what extent the additional limitations eroded the occupational base for light work. Id. In response, the VE identified the representative jobs of office helper — light, Dictionary of Occupational Titles ("DOT") Code # 239.567-010 — light; receptionist — light, DOT # 237.367-018; and call order clerk — light DOT # 209.667-014, that were consistent with the ALJ's RFC and the claimant's vocational profile. (Tr. 37, 64-67).
On December 7, 2015, plaintiff saw William Foust, M.D., at University Health-Monroe. (Tr. 278-280). Foust noted that plaintiff's back pain was a constant, chronic problem that had worsened in the past seven days. Id. Plaintiff described the pain as aching, constant, cramping, pressure-causing, radiating, spasming, and with associated tightness. Id. It radiated to the right thigh and right knee. Id. The severity of the pain was an 8/10. Id. Symptoms were aggravated by bending, coughing, position, standing, and twisting. Id. Associated symptoms included leg pain and tingling. Id. Plaintiff had tried NSAIDs and analgesics, but with no relief. Id. Furthermore, his hypertension was a chronic problem. Id. Associated symptoms included anxiety and malaise/fatigue. Id. His musculoskeletal examination showed tenderness, with no edema. Id. Foust diagnosed lumbar discogenic pain syndrome and essential hypertension. Id.
A December 7, 2015, x-ray of the lumbar spine showed mild degenerative disc and joint disease in the lower lumbar spine, with no acute fracture. (Tr. 281).
On December 9, 2015, plaintiff returned to Dr. Foust. (Tr. 282-284). The severity of his lower back pain was a 9/10. Id. He had tried analgesics, muscle relaxants, and NSAIDs, which provided moderate relief. Id.
Plaintiff obtained an MRI of the lumbar spine on January 4, 2016. (Tr. 286-287). The imaging showed mild disc space narrowing at L5-S1 level, with disc dessication at the three lowest lumbar levels. Id. At the L3-4 level, there was slight acquired central canal stenosis, but the neural foramen were maintained. Id. At the L4-5 level, there was posterior disc bulging, with mild acquired central canal stenosis. Id. At the L5-S1 level there was central and right paracentral disc herniation, which encroached mildly on the canal and moderately on the right S1 nerve root and slightly on the left S1 nerve root. Id.
Plaintiff returned to Dr. Foust on March 23, 2016. (Tr. 290-292). Foust told plaintiff that he had impinged nerves in his low back that caused the radiating pain and could be involved with his intermittent leg weakness. Id. Foust referred plaintiff to neurosurgery, but they wanted physical therapy tried first. Id. Foust recommended that plaintiff apply for disability because the pain would continue to worsen — "he does physical labor which is not compatible with his job description. At this man's age I doubt the success of retraining." Id. Foust further noted that the problem occurred constantly, and that it had waxed and waned since onset. Id. Plaintiff described the severity of the pain as a 9/10. Id. Analgesics, heat, and NSAIDs provided mild relief. Id. Plaintiff's hypertension was controlled. Id. Foust diagnosed lumbar discogenic pain syndrome, lumbar radiculopathy, and essential hypertension. Id.
Foust also penned a note on March 23, 2016, in which he stated that plaintiff was a patient of his who had undergone an MRI that documented disc herniation with nerve root impairment rendering work of any type impossible. (Tr. 271). Foust asked the undisclosed addressee to please evaluate plaintiff for disability and offered to provide more information if needed. Id.
On April 19, 2016, plaintiff was seen at University Health — Shreveport by Christopher Storey, M.D. (Tr. 302-305). Plaintiff presented with a five year history of low back pain with right, lower extremity radiculopathy. Id. Plaintiff smoked 1/3 of a pack of cigarettes per day. Id. His low back pain was a 4/10 at that time, but increased to 10/10 when ambulating for long periods. Id. Back flexing helped plaintiff with pain relief. Id. Jarnevich was very apprehensive about back surgery. Id. He took ibuprofen for pain. Id. Straight leg tests were normal bilaterally. Id. Motor examination was 5/5 in the lower extremities. Id. His sensory examination was normal. Id. Storey opined that plaintiff was a candidate for surgery. Id.
On May 15, 2016, non-examining agency physician, Rebecca Meriwether, M.D., reviewed the record and completed a physical RFC form. (Tr. 77-79). She indicated that plaintiff was able to perform the exertional demands of light work, reduced by the ability to only occasionally climb ramps/stairs, balance, stoop, kneel, crouch, and crawl, but never climb ladders/scaffolds. Id.
On May 24, 2016, non-examining agency psychologist, Julia Wood, Ph.D., reviewed the record and determined that plaintiff had no mental medically determinable impairments. (Tr. 75-76).
Plaintiff was seen by nurse practitioner Jason Hoskins on April 10, 2017. (Tr. 313-317). Hoskins noted that plaintiff took ibuprofen three times per day, but still had significant pain when ambulating. Id. Plaintiff advised Hoskins that he was not going to stop smoking cigarettes. Id. He also reported back pain, but without swelling in the extremities. Id. He further disclosed shooting pain in the right lower extremity, but no fever. Id. He had normal motor strength and normal movement of all extremities. Id. However, he had an irregular gait with a limp. Id. Hoskins prescribed an NSAID for back pain, and advised plaintiff to followup with LSU neurosurgery, especially if his symptoms worsened. Id.
Jarnevich returned to the nurse practitioner on May 2, 2017. (Tr. 318).
Plaintiff returned to Dr. Foust on April 25, 2016. (Pl. Brief, Exh. 1). His pain radiated to his right foot, right knee, and right thigh. Id. The severity of his pain was a 9/10. Id. Associated symptoms included headaches, leg pain, and tingling. Id. He had tried NSAIDs and heat for the symptoms, which provided moderate relief. Id. Compliance problems included his diet. Id. Foust diagnosed lumbar stenosis with neurogenic claudication and essential hypertension. Id.
Plaintiff next saw Dr. Foust on June 17, 2016. Id. At that time, he still had lumbar stenosis and neurologic claudication with decreased strength in his right leg. Id. Foust noted that plaintiff had been turned down for SSI, but added that he was debilitated to the point where he would be a danger to himself and co-workers in construction — his only work for his adult life. Id. Because Jarnevich only had a 7-8th grade formal education and problems with extended sitting, Foust commented that it was unlikely that he could be retrained. Id. Meanwhile, NSAIDs and heat provided moderate relief to his low back pain symptoms. Id. Jarnevich had positive straight leg raise worse on right. Id. He also had mild decrease in motor strength. Id. Foust diagnosed lumbar stenosis with neurological claudication, lumbar radicular pain, and essential hypertension. Id.
In connection with his request for review to the Appeals Council, plaintiff submitted "new" evidence consisting of two progress notes from Dr. Foust which were dated April 25, 2016, and June 17, 2016. See discussion, supra. In other words, the medical evidence documented office visits that occurred approximately one year before the May 16, 2017, ALJ hearing. However, plaintiff, who was represented by a non-attorney "social security specialist" at the time, see doc. # 322, did not update his file to include these additional medical records prior to the ALJ's decision. Instead, after the ALJ's unfavorable decision, plaintiff retained an attorney who managed to obtain these records, and, by all accounts, forwarded them to the Appeals Council for consideration. See Facsimile Trans. Verification Report; Pl. Brief, Exh. 2. It appears, however, that, for whatever reason, Dr. Foust's additional progress notes did not make their way into plaintiff's SSA file/record, and therefore, the Appeals Council did not consider or even mention this additional evidence. Plaintiff contends that because of the Commissioner's omission/error, the court should remand the matter for consideration of the misplaced evidence. The court disagrees.
As an initial matter, the regulations provide that the Appeals Council will review a case, among other reasons, if "[s]ubject to paragraph (b) of this section, the Appeals Council receives additional evidence that is new, material, and relates to the period on or before the date of the hearing decision, and there is a reasonable probability that the additional evidence would change the outcome of the decision." 20 C.F.R. § 404.970(a)(5). Furthermore, by the time of the ALJ's decision in this matter, paragraph (b) of § 404.970 stated that the Appeals Council will only consider additional evidence under paragraph (a)(5) if the claimant shows good cause under one of three specified rationales for failing to submit the evidence timely (i.e., at least five business days before the ALJ hearing) in accordance with 20 C.F.R. § 404.935. 20 C.F.R. § 404.970(b).
Here, plaintiff proffers no explanation for his failure to submit the evidence to the ALJ for consideration at the hearing level; thus, he remains unable to demonstrate good cause for the belated submission of the additional evidence to the Appeals Council, in the first instance.
Even if plaintiff had established good cause for submission of the additional evidence to the Appeals Council, the regulations do not require the Appeals Council to discuss newly submitted evidence or to provide reasons for denying review. Sun v. Colvin, 793 F.3d 502 (5th Cir. 2015). Citing a Fourth Circuit decision, the Fifth Circuit held that when "significant" new evidence, (i.e., when it arguably undermines the stated rationale for the ALJ's decision) is presented to the Appeals Council, then the courts must reverse and remand the matter to the Commissioner to consider and weigh the effect of the evidence. Sun, supra (citing Meyer v. Astrue, 662 F.3d 700 (4th Cir. 2011).
However, under the regulations as cited above, the Appeals Council is obliged to consider additional evidence only when it is new, material, and related to the period on, or before the date of the ALJ's decision. Meyer, supra and 20 C.F.R. § 404.970(a). Evidence is considered "new" "if it is not duplicative or cumulative" and "material" if there is "a reasonable possibility that [it] would have changed the outcome." Meyer, supra (citing Wilkins v. Sec'y, Dept. of Health Human Servs., 953 F.2d 93, 96 (4th Cir.1991) (en banc)). Consequently, evidence submitted by a claimant to the Appeals Council does not per se require remand to the Commissioner merely because the Appeals Council did not address the evidence in its decision. See Higginbotham v. Barnhart, 405 F.3d 332 (5th Cir. 2005); Higginbotham v. Barnhart, 163 Fed. Appx. 279, 2006 WL 166284 (5th Cir. 1/10/2006) ("Higginbotham II"). Rather, in appropriate cases, the courts may assign their own reasons for discounting the significance of evidence presented initially to the Appeals Council.
Here, plaintiff theorizes that the additional evidence "might well have made a difference" had he presented it to the ALJ because the ALJ stated in her decision that
(Pl. Brief, pg. 10) (citing Tr. 34-35).
Upon review, however, the court is not persuaded that the two additional progress notes by Dr. Foust significantly or materially differ from the other medical records. As such, the additional progress notes are neither "new," nor material.
First, the April 25 progress note was dated only one week after plaintiff saw Dr. Storey. Moreover, the June 17 visit was only two months after the April appointment, and thereafter, ten months elapsed before plaintiff decided to seek treatment from a nurse practitioner. There is no indication that at the April and June office visits, Foust changed plaintiff's medication or offered him any other treatment options. In fact, Foust noted that plaintiff's NSAIDs (Non-steroidal Anti-Inflammatory Drugs) and heat treatment provided him with moderate relief.
Second, plaintiff emphasized that the additional progress notes documented pain that was a 9/10. However, Foust had noted pain that was an 8 or 9/10 on prior visits. Furthermore, during an examination with Dr. Storey that was sandwiched between two visits with Dr. Foust, plaintiff reported his pain as a 4/10, that escalated to 10/10 with walking for long periods.
Third, plaintiff seems to suggest that Dr. Foust's missing records reflect some material exacerbation of his symptoms. In support of this argument plaintiff noted that Dr. Foust found in April and June that he had tenderness to palpation of the lumbar paraspinous musculature and interspace with spasm. However, Foust made these same findings in December 2015 and March 2016. See Tr. 283, 291-292. Although Foust noted a mild decrease in motor strength in June 2016, by May 2017, the nurse practitioner documented normal motor strength. (Tr. 315).
In sum, plaintiff has not demonstrated that his additional evidence is new or material. Accordingly, the court finds that remand is not warranted.
Plaintiff contends that, based on his work history and vocational factors, the ALJ erred by failing to make a finding as to whether he was disabled per se under 20 C.F.R. § 404.1562(a), also known as the "Worn-Out Worker" rule. The regulation provides that,
20 C.F.R. § 404.1562(a).
The Worn-Out Worker rule contemplates "a set of functional and vocational limitations which present such an unfavorable vocational profile that an inability to make a vocational adjustment to other work may be inferred if the person meets these requirements and is not engaging in substantial gainful activity." Titles II & XVI: Med.-Vocational Profiles Showing an Inability to Make an Adjustment to Other Work, SSR 82-63 (1982).
Plaintiff argues that remand is required pursuant to Vasquez v. Heckler, 736 F.2d 1053, 1054 (5th Cir.1984). In Vasquez, the claimant presented evidence and argued to the ALJ that he satisfied the requirements for disability under § 404.1562. Vasquez v. Heckler, 736 F.2d 1053, 1054 (5th Cir.1984). The ALJ, however, failed to address plaintiff's argument and otherwise failed to make a finding as to whether plaintiff met the criteria for disability under § 404.1562. Id. In light of the ALJ's omission, the Fifth Circuit vacated the district court judgment and remanded the case with instructions to return the matter to the Commissioner for further proceedings in accordance therewith. Id.
Here, unlike Vasquez, plaintiff did not argue to the ALJ or to the Appeals Council that he satisfied the requirements for the Worn-Out Worker rule. Despite plaintiff's silence on this issue at the administrative level, he nonetheless contends that the ALJ had a duty to address the matter independently. The court observes that although the "ALJ owes a duty to a claimant to develop the record fully and fairly to ensure that h[er] decision is an informed decision based on sufficient facts," reversal is warranted on that basis only when the claimant demonstrates resulting prejudice. Brock v. Chater, 84 F.3d 726, 728 (5th Cir.1996) (citing Kane v. Heckler, 731 F.2d 1216, 1219 (5th Cir.1984). "To establish prejudice, a claimant must show that he could and would have adduced evidence that might have altered the result." Id. (internal quotes omitted).
Similarly, "where the rights of individuals are affected, an agency must follow its own procedures, even where the internal procedures are more rigorous than otherwise would be required. If prejudice results from a violation, the result cannot stand." Newton v. Apfel, 209 F.3d 448, 459 (5th Cir. 2000) (citations and internal quotation marks omitted). Therefore, an ALJ's omission does not require remand unless it affected the claimant's "substantial rights." Audler v. Astrue, 501 F.3d 446, 448 (5
Plaintiff has not made the requisite showing here. To reiterate, a claimant will be deemed disabled pursuant to the Worn-Out Worker rule if he: 1) has a marginal education, 2) has at least 35 years of arduous unskilled physical labor work experience, 3) is not currently working; and 4) is no longer able to perform past relevant work because of a severe impairment(s). Carter v. Colvin, No. 12-0808, 2014 WL 239104, at *3 (N.D. Tex. Jan. 22, 2014).
At minimum, plaintiff did not adduce evidence to show that he has a marginal education. The regulations define marginal and limited education, as follows:
20 C.F.R. § 404.1564(b)(2)-(3).
In the absence of contradictory evidence, the Commissioner will use the claimant's numerical grade level to determine his educational abilities. 20 C.F.R. § 404.1564(b).
In this case, plaintiff testified that he completed the eighth grade, which presumptively supports a finding that he had a limited education. (Tr. 45). Plaintiff argues that because he apparently had someone other than himself complete his disability paperwork this necessarily indicates that he was unable to write. However, at the hearing when the ALJ asked plaintiff whether he could read and write English, he answered in the affirmative. (Tr. 46). Plaintiff further conceded that he could do basic math, such as adding, subtracting, and making change. Id. In fact, on his disability forms, plaintiff stated that he read every day, and had no trouble doing so. (Tr. 217). He also could handle a savings account and use a checkbook/money orders, which, of course, entails writing. (Tr. 216). Finally, as part of his past relevant work as a heavy equipment operator, plaintiff acknowledged that he had to write or complete reports. (Tr. 227).
In addition, the Worn-Out Worker rule requires the performance of 35+ years of "arduous" work means work that is "primarily physical work requiring a high level of strength or endurance." See SSR 82-63. Here, however, while plaintiff's past work was performed at the "heavy" exertional level and he frequently had to lift 25 pounds or more, he also stated that he "mostly" operated equipment to move pipe and that roughly half of his day was spent sitting down. See e.g., Tr. 230. In other words, his work did not primarily require a high level of strength or endurance.
In sum, insofar as the ALJ may have erred by failing to make a specific a finding regarding the applicability of the Worn-Out Worker rule, plaintiff has not demonstrated that the error affected his substantial rights or that he was prejudiced thereby.
Plaintiff contends that the reasons proffered by the ALJ to reject his subjective description of symptoms are not supported by the record.
Relatedly, pain is considered disabling under the Social Security Act only when it is "constant, unremitting, and wholly unresponsive to therapeutic treatment." Selders v. Sullivan, 914 F.2d 614, 618-619 (5
The ALJ complied with the foregoing requirements in this case. She dutifully recounted the hearing testimony provided by plaintiff. (Tr. 33). Ultimately, however, she determined that plaintiff's statements concerning the intensity, persistence, and limiting effects of his symptoms were not entirely consistent with the medical evidence and other evidence in the record for reasons set forth in the decision. Id.
For example, she noted that in October 2015, plaintiff complained to the chiropractor that his pain was a 6/10, but by the next month, it had dropped to a 4/10 that was present only 60 percent of the time. (Tr. 33-34). She further noted that in April 2016, plaintiff told Dr. Storey that his pain was a 4/10 in severity, but 10/10 when ambulating for long periods. (Tr. 34).
Plaintiff takes issue with the ALJ's statement that he "generally" rated his pain as a 4-5/10 in severity, with exacerbation from prolonged standing and walking. (Tr. 35). However, plaintiff rated his pain as a 4 or 5 out of 10 on six occasions, and as a 6/10 on one occasion. (Pl. Brief, pgs. 17-18). The only health care provider to whom plaintiff described a higher degree of pain severity was Dr. Foust, who also happened to be the physician who encouraged him to apply for disability.
As it turns out, however, Dr. Foust's statements regarding the effects of plaintiff's impairments generally were consistent with the ALJ's findings. Indeed, Dr. Foust opined, and the ALJ found, that plaintiff could not perform the exertional demands of his past relevant work. Where the ALJ and Dr. Foust parted company was whether plaintiff was able to perform other work in the national economy. Dr. Foust believed that plaintiff's impairments rendered any type of work impossible. He also added his impression that given plaintiff's age, education, and prior work experience, he would not be capable of other work.
Of course, a physician's statement that a claimant is "disabled" or "unable to work" is not accorded any special significance under the regulations. See 20 C.F.R. § 404.1527(d)(1)-(3); Frank v. Barnhart, 326 F.3d 618 (5th Cir. 2003). Further, whether or not plaintiff's RFC permits him to make an adjustment to other work in the national economy is an issue reserved for the ALJ. In lieu of relying on Dr. Foust's impression in this area, the ALJ ultimately credited the testimony of an experienced vocational expert who specializes in job placement and who has access to resources that catalog and describe the specific requirements for the multitude of jobs that are available throughout the national economy.
Furthermore, it is readily apparent that the ALJ's assessment of the effects of plaintiff's impairments was heavily influenced by the opinion of the non-examining agency physician, Dr. Meriwether. See Tr. 35. It is worth noting, however, that the ALJ did not simply endorse Dr. Meriwether's assessment, without question. Instead, she credited plaintiff's consistent complaints of increased pain with prolonged standing and walking by requiring him to have a sit/stand option every 30 minutes, and by limiting him to only four hours of standing/walking. (Tr. 35). In other words, the ALJ ended up partially crediting plaintiff's subjective description of his symptoms.
Finally, no one questions that plaintiff suffers from a significant and severe impairment that is supported by objective testing. The issue is the limiting effects of the impairment. Here, in addition to the findings of the agency physician, the ALJ further noted the gap in medical treatment, as well as the conservative treatment that plaintiff elected to receive. Although plaintiff received a recommendation for surgery, he declined that option in favor of treatment with non-steroidal anti-inflammatories. Certainly, if, as plaintiff now seems to contend, his pain was consistently a 9/10, i.e. of the utmost severity and intensity, it stands to reason that he would have sought more frequent and/or more significant medical intervention than what the record currently reflects.
In sum, the court finds that the ALJ's assessment of plaintiff's subjective complaints and symptoms satisfied the requirements of 20 C.F.R. § 404.1529, and is supported by substantial evidence. See Giles v. Astrue, 433 Fed. Appx. 241, 249 (5th Cir.2011) (ALJ's appraisal of plaintiff's subjective complaints is supported by his discussion of medical records and opinions); Herrera v. Comm'r of Soc. Sec., 406 Fed. Appx. 899, 905-06 (5th Cir.2010) (ALJ complied with SSR 96-7p [now SSR 16-3p] by thorough consideration and discussion of the relevant medical evidence); Undheim v. Barnhart, 214 Fed. Appx. 448 (5th Cir. 2007) (opinion as a whole gave sufficient reasons and documentation for the ALJ's resolution of subjective evidence); Cornett v. Astrue, 261 Fed. Appx. 644 (5th Cir. 2008) (ALJ gave some weight to claimant's complaints; thus claimant's arguments that his subjective complaints were not given enough weight is unavailing); Hernandez v. Astrue, 278 Fed. Appx. 333 (5th Cir. 2008) (despite claimant's subjective allegations of pain, the ALJ gave "greatest weight" to treating physician's opinion).
The ALJ in this case was tasked with determining whether plaintiff was disabled. In so doing, she considered the claimant's testimony, the medical record, and expert opinion evidence. The evidence by no means was uniform and could have supported a different outcome. Such conflicts in the evidence, however, are for the Commissioner to resolve. Selders v. Sullivan, 914 F.2d 614, 617 (5
For the foregoing reasons, the undersigned finds that the Commissioner's determination that the claimant is not disabled under the Social Security Act, is supported by substantial evidence and remains free of legal error. Accordingly,
IT IS RECOMMENDED that the Commissioner's decision be AFFIRMED, in its entirety, and that this civil action be DISMISSED with prejudice.
Under the provisions of 28 U.S.C. §636(b)(1)(C) and FRCP Rule 72(b), the parties have
20 C.F.R. § 404.1567(b).
