DENA HANOVICE PALERMO, Magistrate Judge.
Plaintiff Toni Marie Wycoff ("Ms. Wycoff" or "Plaintiff") sought review of the denial of her request for disability and disability insurance benefits under Title II of the Social Security Act ("the Act"). ECF No. 1. The Parties consented to have this Court conduct all proceedings in this matter pursuant to 28 U.S.C. § 636(c), ECF Nos. 8-10, and filed cross-motions for summary judgment, ECF Nos. 12-14.
Plaintiff is a 61-year-old woman. R. 34. Plaintiff worked at Shell for over twenty years until 2012, first as an administrative assistant and then as a paralegal. R. 29-30, 179. Thereafter, until 2014, she worked as a tax preparer, paralegal at a law firm, and mail handler for the United States Postal Service. R. 179.
On January 16, 2015, Ms. Wycoff filed an application under Title II seeking benefits beginning on June 12, 2014 based on chronic back pain, right lumbar radiculitis, lumbar facet arthropathy, bilateral hand numbness, carpal tunnel syndrome, and shortness of breath.
On February 4, 2017, Ms. Wycoff requested the Appeals Council to review the ALJ's decision. R. 132. On February 22, 2018, the Appeals Council denied Plaintiff's request for review. R. 1-3; see Sims v. Apfel, 530 U.S. 103, 106 (2000) (explaining that when the Appeals Council denies the request for review, the ALJ's opinion becomes the final decision). On March 20, 2018, Ms. Wycoff filed this civil action. ECF No. 1.
The Social Security Act provides for district court review of any final decision of the Commissioner that was made after a hearing in which the claimant was a party. 42 U.S.C. § 405(g). In performing that review:
Id. Judicial review of the Commissioner's decision denying benefits is limited to determining whether that decision is supported by substantial evidence and whether the proper legal standards were applied. Id.; Boyd v. Apfel, 239 F.3d 698, 704 (5th Cir. 2001). "Substantial evidence" means "relevant evidence that a reasonable mind might accept as adequate to support a conclusion." Carey v. Apfel, 230 F.3d 131, 135 (5th Cir. 2000). It is "more than a scintilla but less than a preponderance." Id.
A reviewing court may not reweigh the evidence in the record, nor try the issues de novo, nor substitute its judgment for that of the Commissioner, even if the evidence preponderates against the Commissioner's decision. Brown v. Apfel, 192 F.3d 492, 496 (5th Cir. 1999). Even so, judicial review must not be "so obsequious as to be meaningless." Id. (internal quotation marks and citation omitted). The "substantial evidence" standard is not a rubber stamp for the Commissioner's decision and involves more than a search for evidence supporting the Commissioner's findings. Cook v. Heckler, 750 F.2d 391, 393 (5th Cir. 1985); Singletary v. Brown, 798 F.2d 818, 822-23 (5th Cir. 1986). Rather, a reviewing court must scrutinize the record as a whole, taking into account whatever fairly detracts from the substantiality of evidence supporting the Commissioner's findings. Id. A court "may affirm only on the grounds that the Commissioner stated for [the] decision." Copeland v. Colvin, 771 F.3d 920, 923 (5th Cir. 2014).
Plaintiff argued (1) the ALJ failed to incorporate Plaintiff's reduced bilateral manual dexterity in the formulation of Plaintiff's RFC; (2) the ALJ failed to properly develop the record by not obtaining an updated medical opinion; (3) the ALJ failed to properly develop the record by not ordering a consultative examination; (4) the ALJ failed to consider the non-exertional impairment of pain; (5) the ALJ failed to conduct a meaningful evaluation of Plaintiff's credibility; (6) the ALJ failed to incorporate all of Plaintiff's medically determinable impairments into Plaintiff's RFC and into its hypothetical questions to the VE. ECF No. 12 at 5-10.
Plaintiff argued that the ALJ failed to account for her reduced bilateral manual dexterity in formulating the RFC, and that the limitation to "frequent handling and fingering" does not adequately reflect this limitation. ECF No. 12 at 5-6.
"The ALJ is not required to incorporate limitations in the RFC that he did not find to be supported in the record." Dismuke v. Colvin, No. 3:14-CV-1175, 2015 WL 464397, at *4 (N.D. Tex. Jan. 8, 2015) (citing Morris v. Bowen, 864 F.2d 333, 336 (5th Cir. 1988)), report and recommendation adopted, 2015 WL 481384 (N.D. Tex. Feb. 4, 2015). The ALJ found Plaintiff has severe carpal tunnel syndrome, but did not find her statements about the intensity, persistence, and limiting effects of her symptoms to be entirely consistent with the evidence. R. 17. The ALJ even departed from the findings of the state agency medical consultants ("SAMCs").
As the ALJ explained, Plaintiff's doctors recommended physical therapy for her spinal impairments, and injections and surgery for her carpal tunnel syndrome.
Plaintiff argued that the ALJ should have obtained an updated medical opinion because there was no opinion from her treating doctors, some treatment records postdated the SAMCs' opinions, and to address medical equivalence and the RFC. ECF No. 12 at 6-7.
"The obligation to develop the record `is triggered only when there is ambiguous evidence or when the record is inadequate to allow for proper evaluation of the evidence.'" Case v. Colvin, No. 7:13-CV-11, 2014 WL 4386736, at *6 (N.D. Tex. Sept. 4, 2014) (quoting Thompson v. Colvin, No. 4:12-CV-466, 2013 WL 4035229, at *6 (N.D. Tex. Aug. 8, 2013)). "The absence of a medical source statement about a plaintiff's ability to work does not, by itself, make the record incomplete." Kirkwood v. Colvin, No. 2:14-CV-191, 2015 WL 5714575, at *17 (S.D. Tex. Aug. 19, 2015) (citing Ripley v. Chater, 67 F.3d 552, 557 (5th Cir. 1995)), report and recommendation adopted, 2015 WL 5714591 (S.D. Tex. Sept. 29, 2015). The issue is whether there is nevertheless substantial evidence in the record supporting the ALJ's decision. Id. Even if the ALJ should have developed the record further, reversal is appropriate only if the plaintiff can show she was prejudiced by this failure. Id. (citing Brock v. Chater, 84 F.3d 726, 728 (5th Cir. 1996)).
The Court finds there was substantial evidence in the record supporting the ALJ's decision. While there was no statement by any treating or examining source, there was sufficient evidence from which the ALJ was able to make a disability determination, including Plaintiff's medical records,
Plaintiff is incorrect that there was no medical opinion evidence to aid in interpreting the raw medical evidence. The ALJ had the benefit of the two SAMCs' opinions.
While the ALJ discounted these two opinions because the doctors did not examine or treat the Plaintiff, the ALJ gave their opinions partial weight and relied on them. R. 18. Even discounted, the SAMCs' opinions constituted substantial evidence in support of the ALJ's decision. See Kirkwood, 2015 WL 5714575, at *18.
Because the ALJ relied on medical opinions in making his determination, he did not improperly rely on his own lay opinion. See Kozlowski v. Colvin, No. 4:13-CV-20, 2014 WL 948653, at *4-6 (N.D. Tex. Mar. 11, 2014) (rejecting Plaintiff's argument that the ALJ should have obtained a medical source statement and based the RFC on his own lay opinion where ALJ properly relied on RFC assessment by a SAMC), report and recommendation adopted, No. 4:13-CV-20 (N.D. Tex. Mar. 11, 2014), ECF No. 29.
The ALJ relied heavily on the fact that several of Plaintiff's physical examinations were essentially normal. Plaintiff's medical records reflect diagnoses of degenerative disc disease, obesity, and carpal tunnel syndrome, and some physical examinations revealed some tenderness and mildly limited range of motion.
The ALJ also relied on the fact that Plaintiff had relatively conservative treatment, primarily taking prescription medications. R. 17. "An impairment controlled by conservative treatment is not disabling." Murphy v. Colvin, No. 4:15-CV-1153, 2016 WL 7736657, at *10 (S.D. Tex. Aug. 19, 2016) (citing Taylor v. Bowen, 782 F.2d 1294, 1298 (5th Cir. 1986)). On two occasions, Plaintiff received injections in her gluteal area and knee.
Plaintiff argued the ALJ erred in discounting Plaintiff's credibility on the basis of Plaintiff's alleged non-compliance with treatment recommendations. ECF No. 15 at 1. Plaintiff argued the ALJ was obligated to make findings as to whether Plaintiff ceased compliance with treatment, whether the treatment would restore Plaintiff's ability to work, and whether Plaintiff had a permitted reason to stop treatment. ECF No. 15 at 1-2. Plaintiff alleges treatment by prescription medication is still treating, and that the ALJ improperly second-guessed claimant's treating doctors. ECF No. 15 at 2 n.2.
First, the ALJ did not base his credibility determination on a contention that Plaintiff ceased all treatment, only that she did not pursue additional treatment options that her own doctors recommended. R. 17. Indeed, several cases have found this is a valid justification for discounting Plaintiff's credibility.
Regarding Plaintiff's second point—whether treatment would restore ability to work—Plaintiff relies on the following regulation in addition to Frey v. Bowen:
20 C.F.R. § 404.1530. Frey is factually distinguishable. In Frey, the Tenth Circuit reversed the ALJ's decision because the ALJ ignored testimony of Plaintiff's treating doctors that the claimant could not be prescribed arthritis medications, which could have mitigated the limitations caused by the claimant's arthritis, because the medications had severe side effects. 816 F.2d 508, 517 (10th Cir. 1987). Ignoring this testimony, the ALJ relied on the claimant's failure to take pain medication to deny benefits. Id. In stark contrast here, Plaintiff's doctors prescribed pain medications and recommended numerous treatment options including physical therapy, injections, and surgery, that would likely help treat her conditions.
Plaintiff has not established a valid justification, even on appeal, as to why she did not pursue these additional treatment options. The regulation Plaintiff relies on provides some examples of good reasons for not following prescribed treatment.
Beyond these, if a "claimant cannot afford the prescribed treatment and can find no way to obtain it, the condition that is disabling in fact continues to be disabling in law." Rouner v. Colvin, No. H-13-2823, 2015 WL 1289794, at *15 (S.D. Tex. Mar. 20, 2015) (quoting Lovelace v. Bowen, 813 F.2d 55, 59 (5th Cir. 1987)); see also Soc. Sec. Ruling 16-3P Titles II & XVI: Evaluation of Symptoms in Disability Claims, 2017 WL 5180304, at *9-10 (S.S.A. Oct. 25, 2017) ("SSR 16-3p"). However, Plaintiff does not actually argue that this circumstance applies to her, nor does she point to any evidence in the record indicating she is indigent.
The Court notes that there is a single reference in the medical records that on April 3, 2015, Plaintiff did not pursue physical therapy "due to the cost." R. 436. However, Plaintiff did not raise this during the hearing or point to this or similar evidence on appeal. See Tate v. Colvin, No. 13-6552, 2014 WL 4982662, at *17-18 (E.D. La. Oct. 6, 2014) (rejecting claimant's argument that ALJ improperly relied on noncompliance with treatment to discount claimant's credibility, where Plaintiff did not testify she could not afford treatment and the medical records contain only one instance when she told a provider that she could not afford treatment). Even if the Court infers from this that she is indigent, this is called into question to some extent by the fact that on August 13, 2015, she received an injection in her left gluteal area for pain, but none to her wrist. R. 840.
Consistent with the requirements of SSR 16-3p, the ALJ also specifically asked Plaintiff during the hearing why she did not pursue surgery for her wrist (and whether she was using pain medication). R. 38-39, 42; see SSR 16-3p, 2017 WL 5180304, at *9. Plaintiff testified she did not pursue surgery due to fear and made no mention of cost. R. 42-43. Fear is not an excusable reason.
Furthermore, in cases where courts have recognized that inability to afford treatment was a valid justification, the claimant testified to that or placed adequate supporting evidence into the record.
Plaintiff further argues that SSR 96-6p requires the ALJ to seek an updated medical opinion or testimony from a medical expert when there is new evidence that post-dates the SAMCs' opinions that may bear on Listing equivalency and Plaintiff's RFC. ECF No. 12 at 6-7; ECF No. 15 at 5-6.
However, courts in this district have rejected this argument several times, noting that "when additional medical evidence is received that in the opinion of the ALJ may change the State agency medical. . . . consultant's findings, an updated medical opinion regarding disability is required." Ybarra v. Colvin, No. 4:13-CV-3720, 2015 WL 222330, at *7, n.5 (S.D. Tex. Jan. 14, 2015) (emphasis in original) (citing Soc. Sec. Ruling 96-6p, Titles II & XVI: Consideration of Admin. Findings of Fact by State Agency Med. & Psychological Consultants & Other Program Physicians & Psychologists at the Admin. Law Judge & Appeals Council, 1996 WL 374180, at *4 (S.S.A. July 2, 1996); Brister v. Apfel, 993 F.Supp. 574, 577 n.2 (S.D. Tex. 1998)) (collecting cases); accord Malone v. Colvin, No. H-13-3043, 2015 WL 1291824, at *14-15 (S.D. Tex. Mar. 16, 2015). Thus, whether to seek an updated medical opinion is within the ALJ's discretion. Id.; see also 20 C.F.R. § 404.1526(e)(3) ("[T]he responsibility for deciding medical equivalence rests with the [ALJ]. . . ."); Taylor v. Astrue, 706 F.3d 600, 602 (5th Cir. 2012) ("[T]he determination of [RFC] is the sole responsibility of the ALJ.") (citing Ripley, 67 F.3d at 557). Likewise, it is discretionary for an ALJ to ask for the opinion of a medical expert at a hearing. Malone, 2015 WL 1291824, at *15.
The ALJ had the benefit of the SAMCs' opinions, which both addressed equivalency to the Listings and Plaintiff's RFC. Plaintiff herself does not identify which new evidence requires an updated medical opinion. The Court notes that after the SAMCs issued their opinions on March 30, 2015 and June 2, 2015 respectively, Plaintiff appeared for three more medical visits for continuing treatment of her already diagnosed conditions of degenerative disc disease and carpal tunnel syndrome, and treatment notes and findings were substantially similar to earlier ones pre-dating the SAMCs' opinions.
"Although the Court recognizes that evidence has been presented on both sides, the ALJ's decision must be affirmed if substantial evidence supports it." Tant v. Colvin, No. 6:12-CV-134, 2015 WL 363842, at *3 (W.D. Tex. Jan. 27, 2015), report and recommendation adopted, No. 6:12-CV-134 (W.D. Tex. Mar. 2, 2015), ECF No. 21. The standard of review is very limited, and substantial evidence is a low standard. The Court cannot reverse the Commissioner's decision because this Court might have reached a different conclusion or weighed the evidence differently. Even though Plaintiff argues the ALJ applied numerous incorrect standards, this case essentially comes down to whether substantial evidence supports the ALJ's decision. "Without re-weighing the evidence or substituting its own judgment, and in consideration of the deference afforded to the ALJ, this Court concludes that there was sufficient evidence to support the ALJ's credibility finding, and subsequently the ALJ's final decision that Plaintiff was not disabled." Id.
Plaintiff has the burden in the first instance to prove she is disabled, and to obtain sufficient medical evidence showing she is disabled. See Manzano, 2018 WL 1518558, at *7 (citing Anthony v. Sullivan, 954 F.2d 289, 293 (5th Cir. 1992)); Kirkwood, 2015 WL 5714575, at *17 (citing Gonzalez v. Barnhart, 51 F. App'x 484, at *1 (5th Cir. 2002)). Plaintiff failed to meet this burden. She never sought a medical source statement from a treating doctor, she never sought a consultative examination, she never asked for an opportunity at the administrative level to supplement the record, and she never raised a concern at the administrative level that she is indigent. Plaintiff cannot place the full burden on the ALJ.
Even if the ALJ should have developed the record further, reversal is appropriate only if the Plaintiff can show she was prejudiced by this failure. Anderson v. Colvin, No. 4:13-CV-1622, 2014 WL 1052442, at *6 (S.D. Tex. Mar. 18, 2014) (citing Carey, 230 F.3d at 142). "To establish prejudice, a claimant must demonstrate that he or she `could and would have adduced evidence that might have altered the result.'" Id. (citations omitted).
Plaintiff has not shown prejudice or pointed to new evidence that would have changed the ALJ's decision.
Plaintiff argues that the ALJ further failed to develop the record by failing to order a consultative examination. ECF No. 12 at 7.
The ALJ is not required to order a consultative examination "unless the record established that such an examination is necessary to enable the [ALJ] to make the disability decision." Manzano, 2018 WL 1518558, at *9 (quoting Anderson v. Sullivan, 887 F.2d 630, 634 (5th Cir. 1989)).
Case, 2014 WL 4386736, at *8 (quoting 20 C.F.R. §§ 404.1512(e), 416.912(e)). The ALJ's decision to order such an examination is discretionary. Manzano, 2018 WL 1518558, at *9 (citing Wren v. Sullivan, 925 F.2d at 123, 128 (5th Cir. 1991); Roberts v. Colvin, 946 F.Supp.2d 646, 660 (S.D. Tex. May 24, 2013)). When the record already contains enough substantial evidence for the ALJ to make a determination, the ALJ is not required to order a consultative examination. Kirkwood, 2015 WL 5714575, at *18.
Here, the Court already concluded there is other substantial evidence in the record supporting the ALJ's decision and the ALJ did not need to obtain a medical source statement or otherwise further develop the record. See supra, Section III.B. The Court likewise concludes a consultative examination was not necessary for the ALJ to make a disability determination. See Kirkwood, 2015 WL 5714575, at *18 (even though there was no medical source opinion by an examining or treating doctor, ALJ did not err by not ordering a consultative examination because there was other substantial evidence in the record). In addition, there is no indication that Plaintiff or her counsel sought or requested a consultative examination at any point throughout the claims process or from the ALJ. See Manzano, 2018 WL 1518558, at *9 (ALJ did not err in not ordering a consultative examination in part because claimant did not request one) (collecting cases).
Plaintiff argued that the ALJ erred in failing to consider her non-exertional impairment of pain and its effect on her ability to work. ECF No. 12 at 7-8.
"[T]he mere fact that working may cause a claimant pain or discomfort does not mandate a finding of disability." Brown v. Astrue, No. H-08-3011, 2010 WL 985847, at *10 (S.D. Tex. Mar. 16, 2010) (citing Hames v. Heckler, 707 F.2d 162, 166 (5th Cir. 1983)). "The suffering of some impairment does not establish disability; a claimant is disabled only if she is `incapable of engaging in any substantial gainful activity.'" Manzano, 2018 WL 1518558, at *7 (quoting Anthony, 954 F.2d at 293). "How much pain is disabling is a question for the ALJ since the ALJ has primary responsibility for resolving conflicts in the evidence." Id. at *8 (quoting Gray v. Astrue, No. 1:09-CV-101, 2011 WL 856941, at *4 (N.D. Tex. Mar. 11, 2011)).
A review of the ALJ's decision shows he considered her complaints of pain. He summarized her complaints that she had problems lifting, squatting, bending, standing, reaching, walking, sitting, kneeling, stair climbing, and using her hands; she has back and neck pain preventing her from sitting at a computer all day; she has tingling in her hands; and her toes go numb. R. 17. He also recognized that some of her physical examinations revealed pain and tenderness. R. 17-18.
Nevertheless, the ALJ found Plaintiff's statements concerning the intensity, persistence, or limiting effects of her symptoms were not entirely credible. R. 17; see Manzano, 2018 WL 1518558, at *8. The ALJ noted evidence in the record that was inconsistent with Plaintiff's subjective complaints of pain, including some physical examinations during which she exhibited no pain or tenderness. R. 17-18. He also noted she did not seek more extensive treatment such as physical therapy, injections, and surgery which may have treated her conditions and related pain. R. 17. "[A] claimant's subjective complaints of pain must be corroborated by objective medical evidence." Manzano, 2018 WL 1518558, at *8 (citing Adams v. Bowen, 833 F.2d 509, 512 (5th Cir. 1987)). "Subjective evidence need not be credited over conflicting medical evidence." Id. (quoting Anthony, 954 F.2d at 295). Since there is conflicting medical evidence, this constitutes substantial evidence in support of the ALJ's determination that her pain is not so severe as to render Plaintiff completely unable to perform any substantial gainful activity.
Plaintiff argued the ALJ failed to conduct a meaningful evaluation of her credibility. ECF No. 12 at 8-9.
"It is within the ALJ's scope of authority to find that not all of Plaintiff's testimony was completely credible. The task of weighing the evidence is the province of the ALJ, not of this court." Manzano, 2018 WL 1518558, at *8 (citing Chambliss v. Massanari, 269 F.3d 520, 523 (5th Cir. 2001)). The Social Security regulations identify a non-exclusive list of factors the ALJ may consider to evaluate the intensity, persistence, and limiting effects of an individual's symptoms, including treatment other than medication an individual receives or has received for relief of pain or other symptoms. SSR 16-3p, 2017 WL 5180304, at *7-8.
Though the ALJ did not explain his credibility determination with a high level of formality, a review of the ALJ's decision shows he considered these issues consistent with the regulation. The ALJ explained there was contrary evidence in the record, including normal physical examinations and evidence that Plaintiff received conservative treatment. R. 17-18. These are valid justifications for the ALJ to find the Plaintiff's allegations of the severity of her symptoms were not wholly supported by the record. See SSR 16-3p, 2017 WL 5180304, at *7-8. Moreover, "the ALJ had the opportunity to observe Plaintiff's demeanor at the hearing and to assess the credibility of her subjective complaints of pain in light of the other evidence in the record[,]" which the reviewing court did not. Dickson, 2015 WL 12552002, at *12.
In addition, the Court already found substantial evidence nevertheless supports the ALJ's decision. "[A] factfinder's evaluation of the credibility of subjective complaints is entitled to judicial deference if supported by substantial record evidence." Tant, 2015 WL 363842, at *3 (quoting Villa, 895 F.2d at 1024).
Plaintiff argued that the ALJ erred by failing to incorporate consideration of all of her impairments into the RFC and into the hypothetical questions he asked the VE. ECF No. 12 at 9-10.
"The ALJ is not required to incorporate limitations in the RFC that he did not find to be supported in the record." Dismuke, 2015 WL 464397, at *4 (affirming ALJ's finding that claimant with degenerative disc disease and other impairments could perform a limited range of light work) (citing Morris, 864 F.2d at 336).
In the ALJ's discussion of the RFC, he explained that Plaintiff alleged chronic back pain, right lumbar radiculitis, facet arthropathy in the lumbar spine, bilateral hand numbness, carpal tunnel, and shortness of breath. R. 17. He summarized her subjective complaints of her symptoms and pain. R. 17. He also discussed in depth her history of carpal tunnel syndrome, degenerative disc disease, and obesity, as well as treatment notes and diagnostic test results evidencing the existence of these conditions. R. 17. He recognized that some of her physical examinations revealed pain and tenderness, that each of her medical conditions are borne out by the medical evidence, and that each of these would impact her physical abilities. R. 17-18. However, he did not find that they are so severe as to be disabling and discussed other evidence he relied on in reaching this conclusion. R. 17-18.
Accordingly, the Court would strain itself to find the ALJ did not consider these impairments. The ALJ included postural and manipulative limitations in the RFC, limiting Plaintiff to lifting 20 pounds occasionally and 10 pounds frequently; no climbing of ladders, ropes, or scaffolds; occasional stooping and crouching; and frequent handling and fingering. R. 16; see, e.g., Walker v. Colvin, No. H-12-2463, 2014 WL 4167017, at *3 n.2 (S.D. Tex. Aug. 20, 2014) (RFC properly incorporated postural limitations resulting from degenerative disc disease such as not being able to climb ladders, ropes, or scaffolds and occasionally stooping and crouching); see also Daniels-Davis, 2014 WL 3955617, at *6-7. It is apparent he considered, but discounted Plaintiff's allegations as to their severity.
"The ALJ is not required to incorporate limitations into the hypothetical questions to the [VE] that [he] did not find to be supported in the record." Manzano, 2018 WL 1518558, at *12 (quoting Gray, 2011 WL 856941, at *8). A review of the hearing transcript shows the ALJ incorporated Plaintiff's limitations in the hypothetical questions to the extent he believed they were supported by the record.
The ALJ asked the VE questions about how various levels of limitations— including manipulative limitations, ability to stand and walk, and ability to lift weight—would affect Plaintiff's ability to work. The ALJ asked the VE to assume a hypothetical person with the same age, education, and work history of the claimant who is limited to sitting six hours in an eight-hour work day; standing and walking six hours in an eight hour work day; lifting 20 pounds occasionally; lifting 10 pounds frequently; no climbing of ladders, ropes, or scaffolds; occasionally stooping and crouching; and frequently handling and fingering (2/3 of a day).
The ALJ asked the VE to further assume the same hypothetical person was limited to sitting six hours; standing and walking no more than two hours; lifting 10 pounds occasionally; no climbing ladders, ropes, and scaffolds; occasionally stooping and crouching; and frequent handling and fingering. R. 51. The VE testified that such a person could not perform Plaintiff's past work. R. 51. The ALJ asked the VE whether the Plaintiff has transferable skills from past work that would enable the hypothetical person with the same limitations to perform other work. R. 51. The VE responded in the affirmative and testified such jobs include appointment clerk, receptionist, and information clerk, which are all sedentary. R. 52. The ALJ asked the VE if the same hypothetical person could perform these jobs if he lowered the manipulative limitations to occasional handling and fingering (1/3 of a day).
While the Court agrees that Plaintiff suffers from some limitations, the ALJ's conclusion that Plaintiff's limitations are consistent with the first hypothetical is supported by substantial evidence. See Simoneaux, 2010 WL 3717291, at *6. The limitations the ALJ recognized allow Plaintiff to perform her past work, or at least other sedentary work, as the VE testified. See id. The hypothetical questions to the ALJ were proper and the ALJ was entitled to rely on them.
"Even if the ALJ did not incorporate all of Plaintiff's alleged limitations in the hypothetical, Plaintiff was not prejudiced because she was represented by an attorney who cross-examined the [VE] and whose questions incorporated additional limitations claimed by the Plaintiff." Manzano, 2018 WL 1518558, at *12 (citing Roberts, 946 F. Supp. 2d at 662). In this case, Plaintiff's attorney had a fair opportunity to correct any deficiencies in the ALJ's hypothetical and asked hypothetical questions incorporating additional limitations. R. 53-54. He incorporated into his hypothetical questions additional limitations pertaining to Plaintiff's degenerative disc disease, her inability to maintain a sitting position for long periods of time, her need for breaks, and more severe manipulative limitations.
For the foregoing reasons, the Commissioner's motion for summary judgment is
