Johnson v. Astrue, No. 4:2010cv00422 - Document 17 (S.D. Tex. 2010)

Court Description: MEMORANDUM OPINION granting 13 Motion for Summary Judgment; denying 14 Motion for Summary Judgment.(Signed by Magistrate Judge Nancy K. Johnson) Parties notified.(sjones, )

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Johnson v. Astrue Doc. 17 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION MAUDE DEAN JOHNSON, § § Plaintiff, § § v. § § MICHAEL J. ASTRUE, § COMMISSIONER OF THE § SOCIAL SECURITY ADMINISTRATION, § § Defendant. § § CIVIL ACTION NO. H-10-422 MEMORANDUM OPINION Pending before the court1 are Plaintiff’s Motion for Summary Judgment (Docket Entry No. 14) and Defendant’s Cross Motion for Summary Judgment (Docket Entry No. 13). The court has considered the motions, all relevant filings, and the applicable law. For the reasons set forth below, the court DENIES Plaintiff’s Motion for Summary Judgment (Docket Entry No. 14), GRANTS Defendant’s Cross Motion for Summary Judgment (Docket Entry No. 13), and AFFIRMS the Commissioner’s decision. I. Case Background Plaintiff Maude Dean Johnson (“Plaintiff” or “Claimant”) filed this action pursuant to 42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c)(3) for judicial review of an unfavorable decision by the Commissioner of the Social Security Administration (“Defendant” or 1 The parties consented to proceed before the undersigned magistrate judge for all proceedings, including trial and final judgment, pursuant to 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73. Docket Entry Nos. 9, 11, 12. Dockets.Justia.com “Commissioner”) regarding Plaintiff’s claims for disability insurance benefits (“DIB”) under Title II of the Social Security Act (“the Act”), 42 U.S.C. § 423, and for supplemental security income (“SSI”) under Title XVI of the Act, 42 U.S.C. § 1382c(a)(3).2 A. Procedural History Plaintiff filed for disability benefits on August 17, 2007,3 alleging disability since January 10, 2007,4 as a result of heart problems, high blood pressure, ulcers, liver problems and anemia.5 Plaintiff’s application was denied at the initial level on December 11, 2007,6 and upon reconsideration on June 4, 2008.7 She requested a hearing before an Administrative Law Judge of the Social Security Administration (“ALJ”).8 The ALJ granted Plaintiff’s request and gave notice that the hearing would be held on September 29, 2008.9 Plaintiff was unable to attend this hearing, as she was evacuated 2 Docket Entry No. 14, Pl.’s Mot. for Summ. J., p. 1. 3 Transcript of the Administrative Proceedings (“Tr.”) 176. 4 Tr. 176. 5 Tr. 155. Plaintiff listed the following symptoms and side effects in her application for disability benefits: weakness, fatigue, disorientation and sleepiness. Tr. 155. 6 Tr. 52-58. 7 Tr. 61-65. 8 Tr. 66-68. 9 Tr. 75. 2 to Dallas due to Hurricane Ike.10 Plaintiff’s hearing was rescheduled and conducted in Houston, Texas, on November 5, 2008.11 After listening to testimony presented at the hearing and reviewing the medical record, the ALJ issued an unfavorable decision on January 21, 2009.12 On October 19, 2009, the Appeals Council denied Plaintiff’s request for review, thereby Defendant’s final decision.13 making the ALJ’s decision the Having exhausted her administrative remedies, Plaintiff filed this timely civil action pursuant to 42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c)(3) for judicial review of the Defendant’s unfavorable decision. B. Factual History 1. Plaintiff’s Age, Education, and Work Experience Plaintiff was born on August 20, 1960, and was forty-eight years old at the time of the hearing before the ALJ.14 Plaintiff had a high school education and completed two years of trade school to be a nurse assistant.15 In the past fifteen years, Plaintiff has 10 Tr. 20, 662. 11 Tr. 101. 12 Tr. 6-17. 13 Tr. 1-3. 14 Tr. 25. 15 Tr. 25. 3 worked as a home health provider, a fast food cook, and a cashier.16 2. Plaintiff’s Testimony At the hearing on November 5, 2008, Plaintiff testified that she was separated from her husband and living with a male friend.17 Plaintiff had a fourteen-year-old daughter who lived with her father but visited Plaintiff and helped her with housework.18 Plaintiff testified that she occasionally cooked and cleaned when she was physically able to do so.19 She said that she had not driven in a year due to side effects from her medication, which caused dizziness and problems with her vision.20 job was at McDonald’s.21 Plaintiff’s last Prior to that she worked as a home health aide.22 Plaintiff complained of the following physical problems: ulcers; swelling in her extremities, face, and neck; high blood pressure; and chronic heart failure.23 Plaintiff testified that she was hospitalized in February 2007 for a “tear in [her] heart.”24 16 Tr. 179. 17 Tr. 35. 18 Tr. 35, 37. 19 Tr. 35. 20 Tr. 37. 21 Tr. 25. 22 Tr. 25. 23 Tr. 26-30. 24 Tr. 26. 4 The doctors at Memorial Hermann Hospital (“MMH”) performed heart surgery on Plaintiff.25 Plaintiff complained that since the surgery her blood pressure was often elevated and she experienced swelling in her body.26 Plaintiff noted that she experienced severe swelling every two-to-three days, and as a consequence, had to lie down with her legs elevated for a couple of hours.27 She mentioned that she was taking medication to keep the swelling down, but that it was not always effective.28 at a time.29 She could only stand for about two hours She could walk less than a block before she was out of breath, and she had trouble breathing after climbing four or five steps.30 She also indicated that she could only pick up items weighing two-to-three pounds due to the strain it caused her.31 Plaintiff testified that sitting was not a problem.32 Plaintiff offered testimony about her past cocaine use.33 She stated at the hearing that the last date she used cocaine was 25 Tr. 26. 26 Tr. 27. 27 Tr. 32. 28 Tr. 28. 29 Tr. 33. 30 Tr. 33, 35. 31 Tr. 34. 32 Tr. 32-33. 33 Tr. 30-31, 37-41. 5 August 18, 2007.34 Prior to that, “occasional.”36 She referred to this as her “sobriety date.”35 Plaintiff characterized her cocaine use as The ALJ noted that there are two places in the record that contradict the sobriety date indicated by Plaintiff.37 First, a hospital record from July 2008 states that Plaintiff last used cocaine one month before, in June 2008.38 Second, a hospital record from September 2008 notes that Plaintiff last used cocaine six months before.39 Plaintiff responded that she probably confused her dates when the doctors asked her; she did not understand why the records indicated any drug use after August 2007.40 The ALJ questioned Plaintiff about non-compliance with her medication regimen.41 pay for her Plaintiff explained that she was unable to medication when her Medicaid coverage expired.42 However, she said that each time she ran out of medication, she went to the hospital to get her prescriptions refilled.43 34 Tr. 30. 35 Tr. 30. 36 Tr. 30. 37 Tr. 38, 40. 38 Tr. 479. 39 Tr. 608. 40 Tr. 39-41. 41 Tr. 38. 42 Tr. 38. 43 Tr. 38-39. 6 3. Plaintiff’s Medical Record44 Plaintiff’s medical record shows that Plaintiff was hospitalized six times from the date she claims her disability began, in January 2007, until the date of her hearing, on November 5, 2008.45 The first hospital visit occurred in February 2007.46 Plaintiff said she began feeling intense back pains and went to MMH.47 The doctors found that Plaintiff had an aortic aneurysm and performed surgery to correct the problem.48 diagnosis included: ascending aortic The post-operative aneurysm, mild aortic insufficiency, cocaine use, tobacco dependence, hypertension, left ventricular hypertrophy, pulmonary hypertension, and acute Type A aortic dissection.49 Anthony Estrera, M.D., noted with regard to Plaintiff’s discharge activity: The patient may ambulate with assistance as tolerated. The patient may lift no greater than ten pounds. This has been expressed to patient and she understands the dangers of heavy lifting during the early post-operative period. The patient may climb stairs and may shower at 44 A medical expert did not testify at the hearing. 45 Tr. 204-732. 46 Tr. 280-304. 47 Tr. 26. 48 See Tr. 22-47. Tr. 280-281. The specific procedures performed included: urgent resection and graft replacement, resuspension of aortic valve, aortic root reconstruction, retrograde cerebral perfusion of the brain, and transesophageal echocardiography. Tr. 280. 49 Tr. 297. 7 liberty.50 Next, Plaintiff was admitted to Lyndon B. Johnson General Hospital (“LBJ”) from June 30, 2007, to July 4, 2007, for a hypertensive emergency and cocaine use.51 Her discharge diagnosis included: hypertension, cocaine abuse, aortic dissection, hepatitis C, and depression.52 At this visit, Plaintiff tested positive for cocaine and reported using cocaine three days prior to admission.53 Her discharge tolerated.”54 instructions read: “Low salt. Activity as She was also given referrals to follow up with a medical clinic, a pulmonary clinic, and a substance abuse clinic.55 The medical staff noted that she had a history of high blood pressure dating back twenty-eight years; a history of crack cocaine use dating back twenty years; a long history of alcohol use and smoking; and a history of hepatitis C dating back five years.56 Plaintiff had a State agency exam on November 14, 2007.57 50 Tr. 282. 51 Tr. 208-252. 52 Tr. 208. 53 Tr. 209, 213. 54 Tr. 209. 55 Tr. 209. 56 She Tr. 222. Within a month of this second visit to the hospital, Plaintiff applied for DIB and SSI. In support of her application, Plaintiff submitted a disability report, work history forms, and a daily activity questionnaire. Tr. 176-189. 57 Tr. 307-309. 8 complained of chest pain, liver problems from hepatitis C, and hypertension.58 about twice dizziness, a Associated symptoms included: sharp chest pain week, shortness intermittent of breath, abdominal pains, rapid heart nausea, beat, vomiting, diarrhea, fatigue, general weakness, and occasional headaches that led to blurred vision.59 Farzana Sahi, M.D., (“Dr. Sahi”) noted that to Plaintiff appeared be in distress Plaintiff had a normal range of motion.60 at rest but that Dr. Sahi also noted that Plaintiff’s blood pressure was high and did not appear to be controlled by the medications that Plaintiff had been prescribed.61 Dr. Sahi wrote that Plaintiff may have difficulty sitting and standing for moderate periods of time, walking short distances, and with light lifting.62 One month later, on December 12, 2007, Scott Spoor, M.D., (“Dr. Spoor”) reviewed Plaintiff’s application for DIB and SSI and completed a residual functional capacity (“RFC”) assessment.63 Plaintiff’s primary diagnosis was listed as hepatitis C, with a secondary diagnosis 58 Tr. 307. 59 Tr. 307. 60 Tr. 308-309. 61 Tr. 309. 62 Tr. 309. 63 Tr. 317-324. 64 Tr. 329. of hypertension.64 9 Dr. Spoor wrote that Plaintiff’s limitations were not wholly supported by the evidence in the file.65 On February 13, 2008, Plaintiff was in a car accident and was taken to Ben Taub General Hospital (“BTGH”).66 The discharge summary from BTGH states that Plaintiff lost consciousness while driving without a seatbelt and with no airbag.67 diagnosis consisted of musculoskeletal pain.68 a right pulmonary Her discharge contusion and It was noted on the date of discharge, February 20, 2008, that Plaintiff’s vital signs were stable, she was ambulating with crutches, and her pain was controlled with prescribed medications.69 On March 10, 2008, Plaintiff submitted a request for reconsideration of her disability determination.70 In June 2008, Plaintiff’s medical records were reviewed by another State agency physician, Kim Rowlands, M.D., (“Dr. Rowlands”).71 Plaintiff’s primary diagnosis was listed as coronary artery disease, with a 65 Tr. 322. Her application for DIB and SSI was subsequently denied. It was found that although Plaintiff had some limitations, her daily activities were not significantly affected. Tr. 52-58. 66 Tr. 329-330. 67 Tr. 329. 68 Tr. 329. 69 Tr. 330. 70 Tr. 59-60. 71 Tr. 343. 10 secondary diagnosis of hypertension.72 having had Rowlands surgeries since noted: “[Claimant] reports evaluation. She is not responding to requests for information. Insufficient evidence denial. two Dr. initial Severity of limits alleged are not supported by evidence in file.”73 Plaintiff times.74 was thereafter admitted to the hospital three First, Plaintiff was admitted to LBJ from July 14, 2008, to July 17, 2008.75 The discharge diagnosis included: congestive heart failure, hypertension, hepatitis C, aortic dissection postgraft replacement depression.76 in 2006, peptic ulcer disease, and major LBJ staff noted that she complained of shortness of breath, which had gradually worsened over a three-day period.77 Plaintiff reported that for the past month she had been taking her medication only once per week.78 Plaintiff also reported an incident that had taken place two months prior: she was depressed and took 72 some sleeping pills and drank a bottle of wine.79 Tr. 50. 73 Tr. 343. Plaintiff’s subsequently denied. Tr. 61-65. 74 Tr. 473-732. 75 Tr. 476-483. 76 Tr. 476. 77 Tr. 477. 78 Tr. 477. 79 Tr. 477. application 11 for reconsideration was Subsequently, she was admitted to a rehabilitation center for thirty days.80 However, she denied having any suicidal thoughts, or plans to hurt herself or others upon admission to LBJ.81 She was discharged with instructions to continue taking her medications regularly.82 She was also told to return if she felt any chest pain or shortness of breath.83 Plaintiff was admitted to LBJ again from September 3, 2008, to September 9, 2008.84 Her discharge diagnosis included: hypertension, aortic aneurysm status post-graft repair, peptic ulcer disease, and drug abuse.85 Plaintiff said that she had a headache and shortness of breath.86 She stated in the emergency room that she had some swelling in her face, hands, and neck.87 LBJ medical staff noted that the swelling was likely due to the 80 Tr. 477. 81 Tr. 477. 82 Tr. 477. 83 Tr. 477. 84 Tr. 608-614. 85 Tr. 608. There is no record that Plaintiff tested positive for cocaine use at this visit. It seems that drug abuse diagnosis was based on Plaintiff’s long history of tobacco, alcohol, and drug use. She reported that she stopped using all of the above when she joined “rehab” six months prior. Tr. 609. 86 Tr. 608. 87 Tr. 608. 12 medication, Anapril, to which Plaintiff was allergic.88 She was discharged in good condition with instructions to check and record her blood pressure morning and night.89 Finally, from September 22, 2008, to September 26, 2008, Plaintiff was admitted to Methodist Dallas Medical Center (“MDMC”) when she was staying in Dallas due to Hurricane Ike.90 diagnosis at this visit included: fluid overload, hypertension, chest pain, and esophageal reflux. Her malignant MDMC staff noted that she experienced shortness of breath all the time, found it hard to lie flat, and woke up gasping for air.91 Plaintiff reported chest pains radiating to her back, lasting about five minutes, multiple times per day.92 feet swelling at this time.93 She also noticed her legs and Michael Passanante, M.D., (“Dr. Passanante”) saw Plaintiff on September 22, 2008, and noted that Plaintiff appeared to be in acute distress.94 88 She had chest pain, Tr. 608. It is not clear if this medication was a part of her regular medication regimen or something she was given by hospital staff while she was being treated at the emergency room. 89 Tr. 610. 90 Tr. 633-34, 662. 91 Tr. 638. 92 Tr. 638. 93 Tr. 638. 94 Tr. 640. 13 edema,95 and difficulty breathing.96 following diagnosis: acute Dr. Passanante provided the exacerbation of congestive failure, chest pain, and accelerated hypertension.97 heart Ruth Ingram (“Ms. Ingram”)98 saw Plaintiff the next day and conducted a physical assessment.99 The notes from the assessment state that Plaintiff’s respiratory effort was non-labored.100 Although Plaintiff’s chief complaint was listed as chest pain, she did not have pain at the time of the assessment.101 tolerance for activity was good.102 It was noted that her Plaintiff was considered to be a low suicide risk, and she was not found to have depression or any other psychiatric problem.103 4. Vocational Expert Testimony After reviewing the file and listening to Plaintiff’s testimony, the vocational expert (“VE”), Cheryl Swisher, offered 95 Edema is an abnormal excess accumulation of serious fluid in connective tissue or in a serious cavity. MERRIAM WEBSTER’S MEDICAL DICTIONARY (Springfield, Merriam Webster, Inc. 1995). 96 Tr. 640-641. 97 Tr. 641. 98 It is unclear from the hospital records whether Ms. Ingram is a doctor, nurse, or other hospital staff member. 99 Tr. 696-709. 100 Tr. 697. 101 Tr. 70, 704. 102 Tr. 701. 103 Tr. 702, 708. 14 testimony concerning the skill and exertional level of Plaintiff’s past occupations.104 She testified that the occupation of home health provider is listed in the Dictionary of Occupational Titles (“DOT”) as semi-skilled, with a medium exertional level.105 She noted, however, that Plaintiff performed this occupation at a heavy exertional level.106 Next, the VE stated that the DOT lists the position of fast food cook as skilled, with a medium exertional level.107 She noted that this categorized as semi-skilled.108 position should probably be Finally, the VE said that the position of cashier is listed as skilled, with a light exertional level.109 The ALJ asked the VE to assess the vocational ability of a person with the following abilities or limitations: ability to stand or walk about two hours in an eight hour day, with normal breaks; ability to sit for six hours; limited ability to carry or lift ten pounds; limited ability to climb stairs, stoop, or crouch; no ability to climb ropes, ladders, scaffolding, kneel or crawl; and no ability to operate 104 Tr. 42-46. 105 Tr. 42. 106 Tr. 42. 107 Tr. 42. 108 Tr. 42. 109 Tr. 42. 110 Tr. 42-43. dangerous 15 machinery.110 The ALJ asked Plaintiff if her medications had any side effects.111 Plaintiff said that her medications disorientation.112 caused drowsiness, dizziness, and The VE then responded that such a hypothetical person experiencing those medication side effects could not perform Plaintiff’s past occupations.113 The ALJ next asked the VE to assume a hypothetical person exactly like the person in the first example, adding that this person is aged forty-eight, with a high school degree, and nurse’s aid training.114 The ALJ asked the VE if there was any other work in the regional or national economy for such a person.115 The VE provided three examples of jobs that such a person could perform. First, this person could be a receptionist.116 The VE reported there are approximately 8,000 to 10,000 such positions in Houston and the surrounding counties, national economy.117 clerk.118 and over 400,000 such positions in the Second, this person could be an appointment There are approximately 3,000 such positions in Houston and surrounding counties, and approximately 170,000 such positions 111 Tr. 43. 112 Tr. 43. 113 Tr. 43. 114 Tr. 43. 115 Tr. 43. 116 Tr. 43. 117 Tr. 43. 118 Tr. 43. 16 in the national economy.119 Third, this person could be an information clerk.120 There are approximately 900 to 1,000 positions in Houston and surrounding counties, and approximately 100,000 positions in the national economy.121 Each of these positions is semi-skilled, with a sedentary exertional level.122 The ALJ then allowed Plaintiff’s attorney to question the VE.123 The attorney asked the VE to assume the previous hypothetical, adding an accommodation for a person who has to elevate her feet for about two hours every two-to-three days.124 The VE responded that this would require an accommodation from the employer and that this “would not be consistent with competitive employment.”125 II. A. Legal Standards Standard of Review This court’s review of a final decision by the Commissioner denying disability benefits is limited to determining (1) whether substantial record evidence supports the decision and (2) whether the ALJ applied proper legal standards in evaluating the evidence. 119 Tr. 44. 120 Tr. 44. 121 Tr. 44. 122 Tr. 43-44. 123 Tr. 44-46. 124 Tr. 44. 125 Tr. 44. 17 Brown v. Apfel, 192 F.3d 492, 496 (5th Cir. 1999). If the findings of fact contained in the Commissioner’s decision are supported by substantial evidence, they are conclusive, and this court must affirm. (5th Cir. 1990). Selders v. Sullivan, 914 F.2d 614, 617 Substantial evidence is described as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). It is “more than a mere scintilla, and less than a preponderance.” 1993). Spellman v. Shalala, 1 F.3d 357, 360 (5th Cir. A finding of no substantial evidence is appropriate only if no credible evidentiary choices or medical findings support the decision. Johnson v. Bowen, 864 F.2d 340, 343-44 (5th Cir. 1988). Under this standard, the court must review the entire record but may not reweigh the record evidence, determine the issues de novo, or substitute its judgment for that of the Commissioner. Brown, 192 F.3d at 496. B. Standard to Determine Disability To obtain disability benefits, a claimant bears the ultimate burden of proving she is disabled within the meaning of the Act. Wren v. Sullivan, 925 F.2d 123, 125 (5th Cir. 1991). Specifically, under the legal standard for determining disability, the claimant must prove she is unable “to engage in any substantial gainful activity by reason of any medically determinable physical or mental 18 impairment which . . . has lasted or can expect to last for a continuous period of not less than twelve months.” 423(d)(1)(a); see also Greenspan, 38 F.3d at 236. 42 U.S.C. § The existence of such disability must be demonstrated by “medically acceptable clinical and laboratory diagnostic findings.” 42 U.S.C. §§ 423(d)(3), (d)(5); see also Jones v. Heckler, 702 F.2d 616, 620 (5th Cir. 1983). To determine whether a claimant is disabled under this standard, Social Security Act regulations (“regulations”) provide that a disability claim should be evaluated according to a sequential five-step process: (1) An individual who is working and engaging in substantial gainful activity will not be found disabled regardless of medical findings. (2) An individual who does not have a “severe impairment” will not be found to be disabled. (3) An individual who meets or equals a Listing126 will be considered disabled without the consideration of vocational factors. (4) If an individual is capable of performing the work she has done in the past, a finding of “not disabled” will be made. (5) If an individual’s impairment precludes her from performing her past work, other factors including age, education, past work experience, and RFC must be considered to determine if other work can be performed. Bowling v. Shalala, 36 F.3d 431, 435 (5th Cir. 1994); see also 20 126 “The Listings” or “a Listing” refers to impairments listed in Appendix 1 of the Act’s regulations. 20 C.F.R. pt. 404, subpt. P, app. 1. 19 C.F.R. § 404.1520 (2007). The claimant bears the burden of proof on the first four steps of the inquiry, while the Commissioner bears Crowley v. Apfel, 197 F.3d 194, 198 (5th Cir. it on the fifth. 1999); Brown, 192 F.3d at 498. The Commissioner can satisfy this burden either by reliance on the Medical-Vocational Guidelines of the regulations or by expert vocational testimony or other similar Fraga v. Bowen, 810 F.2d 1296, 1304 (5th Cir. 1987). evidence. If the Commissioner satisfies his step-five burden of proof, the burden shifts back to the claimant to prove she cannot perform the work Muse v. Sullivan, 925 F.2d 785, 789 (5th Cir. 1991). suggested. The analysis stops at any point in the process upon a conclusive finding that the claimant is disabled or not disabled. Greenspan, 38 F.3d at 236. III. A. Analysis The ALJ’s Decision In his formal decision, the ALJ followed the five-step process outlined in the regulations, finding at the first step that Plaintiff had not engaged in substantial gainful activity since January 10, 2007.127 suffered from the At step two, the ALJ found that Plaintiff following severe impairments: hypertension, hepatitis C, coronary artery disease, renal disease, congestive aortic dissection status post-graft replacement in 2006, ulcer, 127 Tr. 11. 20 cardiomegaly,128 and cocaine abuse.129 However, at step three, the ALJ found that none of Plaintiff’s impairments, or combination of impairments, were sufficiently severe to meet or equal the record and The ALJ impairments found in the Listings.130 Next, testimony, the ALJ as well considered as the Plaintiff’s testimony of medical the VE.131 determined, at step four, that Plaintiff had an RFC that included the following abilities: occasionally lifting or carrying ten pounds; standing or walking two hours in an eight-hour work day; sitting six hours in an eight-hour workday; occasionally climbing stairs, stooping, and crouching.132 The ALJ found, based on the VE’s testimony, that these abilities fell within the sedentary exertional level.133 The ALJ concluded that Plaintiff did not have the RFC to perform her past relevant work.134 However, at step five, the ALJ found that Plaintiff had the RFC to work in such occupations as, 128 for example, Cardiomegaly is enlargement of the heart. DICTIONARY (Springfield, Merriam Webster, Inc. 1995). 129 Tr. 12. 130 Tr. 12. 131 Tr. 12-16. 132 Tr. 12. 133 Tr. 15-16. 134 Tr. 15. 21 receptionist, MERRIAM WEBSTER’S MEDICAL appointment clerk, and information clerk.135 Therefore, the ALJ determined that Plaintiff was not disabled under the Act.136 B. Summary of the Parties’ Arguments Plaintiff requests judicial review of the ALJ’s decision to deny her disability benefits. In her motion for summary judgment, Plaintiff makes eight arguments: (1)(a) the ALJ erred in failing to obtain an updated medical opinion of a medical expert as to the medical equivalency of Plaintiff’s combined physical and mental impairments;137 (1)(b) the ALJ erred in failing to consult a medical expert regarding Plaintiff’s RFC in light of Plaintiff’s combined impairments;138 (2) the ALJ’s failure to obtain an updated medical expert opinion resulted in a failure to properly develop the case;139 (3) the ALJ erred in concluding that Plaintiff’s allegations of nonexertional symptoms were exaggerated based on her daily living activities;140 (4) the ALJ failed to consider, discuss, or make provision in his RFC assessment with regard to the side effects of Plaintiff’s medications on her ability to work;141 (5) the ALJ erred 135 Tr. 16. 136 Tr. 16. 137 Docket Entry No. 14, Pl.’s Mot. for Summ. J., p. 7. 138 Id. 139 Id. at 9. 140 Id. 141 Id. at 10. 22 in discounting Plaintiff’s credibility on the basis that Plaintiff was noncompliant with prescribed medications;142 (6) the ALJ erred in failing to conduct a meaningful evaluation of Plaintiff’s credibility;143 (7) the ALJ failed to consider the non-exertional impairments of fatigue, chronic shortness of breath, and swelling that required Plaintiff to elevate her feet, and their effects on Plaintiff’s ability to perform work on a sustained basis at the RFC assessed by the ALJ;144 and (8) the ALJ erred in finding Plaintiff’s major depression not to be “severe.”145 Defendant, on the other hand, contends that the ALJ’s decision is supported by substantial evidence of record and that the ALJ employed proper legal standards in reviewing the evidence.146 Defendant therefore maintains that the ALJ’s decision should be affirmed. C. Step Two: Severity of Depression Plaintiff’s argues that the ALJ erred in finding Plaintiff’s major depression not to be “severe.”147 In support of this argument, Plaintiff asserts that the ALJ must consider the combined effects 142 Id. at 11. 143 Id. at 12. 144 Id. at 14. 145 Id. at 16. 146 Docket Entry No. 13, Def.’s Cross Mot. for Summ. J., Attach. 3, Def.’s Memo in Support. 147 Docket Entry No. 14, Pl.’s Mot. for Summ. J., p. 16. 23 of all impairments.148 20 C.F.R. §§ 404.1523, 416.923 (1991). Additionally, Plaintiff argues that the ALJ “cannot pick and choose only the evidence which supports his position.” Loza v. Apfel, 219 F.3d 378, 391 (5th Cir. 2000).149 The ALJ did not make any finding about Plaintiff’s depression. Plaintiff did not include depression as a condition limiting her ability to work on any of her disability report paperwork.150 There was no finding of depression as a result of Plaintiff’s State agency examination from November 2007.151 Plaintiff’s depression was not mentioned by any of the parties at the ALJ hearing.152 Plaintiff was given a discharge diagnosis of depression in July 2007 and of severe depression in July 2008.153 This diagnosis does not appear in the records from Plaintiff’s four other trips to the emergency room, including two subsequent visits.154 There is no record that Plaintiff was prescribed any anti-depressant medication as a result of these two diagnoses, nor do the discharge notes include any instructions for these diagnoses, such as a follow up 148 Id. 149 Id. 150 Tr. 155-178. 151 Tr. 307-309. 152 Tr. 22-47. 153 Tr. 208, 476. 154 Tr. 280-304, 329-330, 608-709. 24 visit with a clinic, psychologist, or psychiatrist.155 The court does not attempt to assess whether Plaintiff is clinically depressed. However, Plaintiff did not assert this as an impairment limiting her ability to work until her motion for summary judgment.156 disabled. The burden is on the claimant to prove that she is Crowley, 197 F.3d 194, 198. As Plaintiff did not list depression among her impairments at the time of the ALJ hearing, and there is scant evidence in the file with regard to this impairment, the court overrules Plaintiff’s argument that the ALJ erred in finding Plaintiff’s major depression not to be severe. D. Medical Expert The court arguments. next considers Plaintiff’s first and second Plaintiff contends that the ALJ failed to properly develop the case in two ways: 1) at step three, the ALJ did not obtain an updated medical opinion with regard to the medical equivalency of Plaintiff’s combined impairments; and 2) at step four, the ALJ did not consult a medical expert with regard to Plaintiff’s RFC.157 1. Step Three: Updated Medical Opinion Regarding Equivalency Plaintiff argues that the ALJ erred in failing to obtain an updated medical opinion of a medical expert as to the medical 155 Tr. 702. 156 Docket Entry No. 14, Pl.’s Mot. for Summ. J., p. 16. 157 Id. at 7-9. 25 equivalency of Plaintiff’s combined physical and mental impairments. Social Security Ruling (“SSR”) 96-5p clarifies that equivalence is a decision based on “medical evidence only” and does not include vocational factors. 96-5p, 1996 WL 374183, at *4 (S.S.A. July 2, 1996) (citing to 20 C.F.R. §§ 404.1526, 416.926 (2006)). The ruling further explains that the requirements of listed impairments are usually objective and whether an individual’s impairment meets these requirements is simply a matter of documentation. 96-5p, 1996 WL 374183, at *3. The claimant has the burden to prove that her impairment or combination of impairments meets or equals a Listing. Selders, 914 F.2d at 619. If a claimant does not exhibit all of the requirements of a listed impairment, then medical equivalence may be established by showing that her unlisted impairment or combination impairments is equivalent to a listed impairment. Zebley, 493 U.S. 521, 531 (1990). of Sullivan v. To do so, the claimant must present medical findings that are at least equal in duration and severity to the listed findings. 416.926(a)). See id. (citing 20 C.F.R. § A court will find that substantial evidence supports the ALJ’s finding at step three if Plaintiff fails to demonstrate the specified medical criteria. Selders, 914 F.2d at 619-20. The record shows that the ALJ reviewed the evidence that Plaintiff provided and found: No treating, examining, or non-examining health care provider has identified any ailment of sufficient 26 severity to satisfy a listing, including sections 4.04, 4.02, 5.05, 6.02.158 Plaintiff contends interpretation of that a this medical finding expert submitted after December 12, 2007.159 was of reached the without evidence that the was In other words, Plaintiff asserts that the only medical assessment in this case predated the submission of over four hundred pages of medical records. Plaintiff argues that in a case where additional medical evidence is received, an ALJ must get an updated medical opinion if the evidence may change the State agency medical findings.160 Plaintiff cites to SSR 96-6p, 1996 WL 374180 (S.S. A. July 2, 1996), and Brister v. Apfel, 993 F. Supp. 574, 578 (S.D. Tex. 1998), in support of this argument. SSR 96-6p and the court in Brister leave this decision to the discretion of the ALJ: It is clear that when additional medical evidence is received that in the opinion of the ALJ may change the State agency medical or psychological consultant’s findings, an updated medical opinion regarding disability is required. See SSR 96-6p, 1996 WL 374180, at *3; see also Brister, 993 F. Supp. at 578 n.2 (emphasis added). Therefore, if the ALJ believes that any medical evidence received after a medical opinion was obtained might change the State agency’s findings, then the ALJ must obtain an updated opinion. If the ALJ does not think that an updated 158 Tr. 14. 159 Docket Entry No. 14, Pl.’s Mot. for Summ. J., p. 7. 160 Tr. 7. 27 opinion would change the State agency’s findings, then the ALJ is not required to obtain an updated opinion. SSR 96-6p states that “the ALJ is responsible for deciding the ultimate legal question whether a listing is met or equaled.” 96-6p, 1996 WL 374180, at *3. SSR The ALJ is not required to get an updated medical opinion on the issue of equivalency. See e.g., Thomas v. Astrue, No. 6:07-CV-053-C ECF, 2009 WL 2777867, at *4-5 (N.D. Tex. Aug. 31, 2009)(unpublished) (finding that the ALJ did not err in failing to obtain an updated medical opinion on the question of medical equivalence as to the plaintiff’s visual impairments even when such issue did not arise until after the State agency medical consultant had reviewed the plaintiff’s case and there was no physician or medical expert opinion in the record relating to such issue). It is clear from his opinion that the ALJ considered all of the medical evidence in Plaintiff’s voluminous record. This included: hospital records from 2006;161 notes from the State agency requested medical exam, performed on November 14, 2007;162 two case assessments completed by State agency doctors, the first dated December 12, 2007,163 the second dated 161 See Tr. 13, 587-604. 162 See Tr. 14, 307-309. 163 Tr. 317-324. 164 Tr. 343. June 30, 28 2008;164 two visits to the emergency room in 2007;165 and three visits to the emergency room in 2008.166 The ALJ concluded that “no treating physician has indicated that [Plaintiff] is disabled.”167 To be entitled to relief, a plaintiff must establish not only that the ALJ erred, but also that the ALJ’s error casts into doubt the existence of substantial evidence to support the ALJ’s decision. Morris v. Bowen, 864 F.2d 333, 335 (5th Cir. 1988). Plaintiff does not refer to any specific impairment in the Listing that is applicable to her circumstances, nor has she presented any evidence or argument suggesting that any of her impairments or combination of impairments meet or equal a listed impairment. Therefore, the court overrules Plaintiff’s argument that the ALJ was required to obtain an updated medical opinion. 2. Step Four: Medical Expert Regarding Plaintiff’s RFC Plaintiff argues that the ALJ erred in failing to consult a medical expert regarding Plaintiff’s RFC in light of Plaintiff’s combined physical and mental impairments.168 The RFC assessment is reserved to the Commissioner. an administrative finding that is SSR 96-5p, 1996 WL 374183, at *5. An ALJ may ask for the opinion of a medical expert at a hearing, but 165 See Tr. 13, 208-304. 166 See Tr. 14, 476-483, 608-709. 167 Tr. 14. 168 Docket Entry No. 14, Pl.’s Mot. for Summ. J., p. 7. 29 it is not mandatory. 2001). Madis v. Massanari, 277 F.3d 1372 (5th Cir. See also 20 C.F.R. § 404. 1527(f)(2)(iii) (“ALJs may also ask for and consider opinions from medical evidence.”)(emphasis added). As the ALJ is not required to obtain an opinion from a medical expert, the court cannot find that failure to do so constituted a failure to properly develop the case. Thus, the court overrules Plaintiff’s argument to the contrary. E. Plaintiff’s RFC Plaintiff contests the ALJ’s finding that Plaintiff had the RFC to work at a sedentary exertional level. In her fourth argument, Plaintiff asserts that the ALJ failed even to discuss, much less consider, or make provision in the RFC assessment with regard to the side effects of Plaintiff’s multiple medications on her ability to work.169 Additionally, Plaintiff’s seventh argument is that the ALJ erred in failing to consider Plaintiff’s non-exertional impairments of fatigue, chronic shortness of breath, and swelling that required Plaintiff to elevate her feet, and their effects on Plaintiff’s ability to perform work on a sustained basis at the RFC assessed by the ALJ.170 1. Side Effects of Plaintiff’s Medications The court turns first to Plaintiff’s argument that the ALJ 169 Id. at 10. 170 Id. at 14. 30 failed to make provision in his RFC assessment with regard to the side effects of Plaintiff’s multiple medications on her ability to work, as required by SSR 96-7p, 1996 WL 374186 (S.S.A. July 2, 1996), and SSR 96-8, 1996 WL 374184 (S.S.A. July 2, 1996).171 The ALJ must take into account the effects of medication on a claimant’s ability to perform work tasks. F.3d 378, 396-7 (5th Cir. 2000). See Loza v. Apfel, 291 Here, the ALJ specifically noted in his opinion, within his discussion of Plaintiff’s RFC and all relevant symptoms and impairments, that Plaintiff testified that her medications make her dizzy and sleepy.172 However, the ALJ did not find Plaintiff’s testimony on the severity of her symptoms to be fully credible.173 Nevertheless, the ALJ made provision in his RFC assessment with regard to some side effects of Plaintiff’s medications in determining that the Plaintiff did not have the RFC to perform any of her past work or even work at a light exertional level: If the claimant had the RFC to perform the full range of light work, a finding of ‘not disabled’ would be directed by Medical-Vocational Rule 202.321 and Rule 202.14. However, the claimant’s ability to perform all or substantially all of the requirements of this level of work has been impeded by additional limitations.174 The “additional limitations” that the ALJ refers to in his opinion 171 Id. at 10. 172 Tr. 13. 173 Tr. 14. 174 Tr. 14. 31 includes the side effects of Plaintiff’s medications. This is clear in the ALJ hearing transcript. At the hearing the ALJ created a hypothetical that took into account Plaintiff’s physical limitations describing a person who: Could stand and walk about two hours in an eight hour day with normal breaks, or sit for six, lifting or carrying 10 pounds occasionally. The following are occasionally: stairs, stooping, crouching. The following are never: ropes, ladders, and scaffolding, kneeling, crawling and no dangerous machinery.175 He then asked Plaintiff: “Do your medicines cause you any side effects?” She responded: “Yes, they [sic], drowsiness, dizziness, sleepy, sometimes disoriented. because I get lightheaded.” Can’t really stand up too fast The ALJ asked the VE if such an individual could perform the Plaintiff’s past work. “No.” The VE said, However, the VE listed three jobs at a sedentary exertional level that such an individual could perform. The ALJ ultimately adopted the VE’s opinion and determined: Based on the testimony of the vocational expert, the undersigned concludes that, considering the claimant’s age, education, work experience, and RFC, the claimant is capable of making a successful adjustment to other work that exists in significant numbers in the national economy.176 The court finds, therefore, that the ALJ took the side effects of Plaintiff’s medications into account and considered some of these side effects to be among the additional limitations that prevented 175 Tr. 42-43. 176 Tr. 16. 32 Plaintiff from performing past work and that limited her to a job with a sedentary exertional level. Accordingly, the court overrules Plaintiff’s arguments on this point. 2. Plaintiff’s Non-Exertional Impairments Plaintiff also asserts that the ALJ erred in failing to consider her non-exertional impairments of fatigue, chronic shortness of breath, and swelling that required Plaintiff to elevate her feet, and their effects on Plaintiff’s ability to perform work on a sustained basis at the RFC assessed by the ALJ.177 The ALJ clearly weighed Plaintiff’s nonexertional impairments in his discussion of Plaintiff’s RFC and Plaintiff’s symptoms that affect her RFC. The ALJ noted: [Claimant] also notes that most of an average day she has to rest because she is so fatigue [sic] . . . . Claimant’s complaints were chest pain, liver problems, and hypertension . . . . Claimant was hospitalized . . . with complaints of left chest heaviness along with shortness of breath.178 The ALJ considered the above nonexertional impairments and found that these and other impairments could reasonably be expected to cause Plaintiff’s alleged symptoms.179 However, the ALJ did not find Plaintiff’s testimony on the severity of her symptoms to be 177 Docket Entry No. 14, Pl.’s Mot. for Summ. J., p. 14. 178 Tr. 13-14. 179 Tr. 14. 33 fully credible.180 Therefore, the court finds that the ALJ credited Plaintiff’s nonexertional symptoms and their effect on her ability to work, but not at the level of severity claimed by Plaintiff. Accordingly, the court overrules Plaintiff’s argument with regard to this point. F. Plaintiff’s Credibility Plaintiff’s third, fifth, and sixth arguments challenge the ALJ’s credibility determination. Plaintiff contends that the ALJ erred in failing to conduct a meaningful evaluation of Plaintiff’s credibility.181 Plaintiff specifically debates two of the ALJ’s credibility determinations. First, Plaintiff asserts that the ALJ erred in concluding that Plaintiff’s allegations of non-exertional symptoms are exaggerated based on her daily living activities.182 In addition, Plaintiff contends that the ALJ erred in discounting Plaintiff’s credibility on the basis of Plaintiff’s noncompliance with prescribed medications.183 In determining the claimant’s RFC, the ALJ must follow a twostep process. 1996). SSR 96-7p, 1996 WL 374196, at *2 (S.S.A. July 2, At step one, the ALJ has to determine whether there is an underlying medically determinable physical or mental impairment. 180 Tr. 14. 181 Docket Entry No. 14, Pl.’s Mot. for Summ. J., p. 12. 182 Id. at 14. 183 Id. at 11. 34 Id. At step two, the ALJ has to evaluate the intensity, persistence, and limiting effects of the Plaintiff’s symptoms to determine the extent to which they limit the claimant’s ability to do basic work activities. Id. Whenever symptoms are not substantiated by objective medical evidence, the regulations require the ALJ to make a finding on credibility based on a consideration of the entire case record. Id. (c)(4), 416.929 (c)(4)(2010)). (citing to 20 C.F.R. §§ 404.1529 SSR 96-7p further explains: The determination decision must contain specific reasons for the finding on credibility, supported by evidence in the case record, and must be sufficiently specific to make clear to the individual and to any subsequent reviewers the weight the adjudicator gave to the individual’s statements and reasons for that weight. Id. The ALJ found that the objective medical evidence did not support Plaintiff’s complaints and that Plaintiff’s statements concerning the intensity, persistence, and limiting effects of her alleged symptoms were “not credible to the extent that they [were] inconsistent with the . . . RFC assessment.”184 The ALJ enumerated five issues of credibility, based on the record and Plaintiff’s testimony: No treating physician has indicated that she is disabled. Her work history shows that she did not work consistently, even prior to her alleged onset date. She continues the cocaine abuse. Her activities of daily living are inconsistent with the alleged severity of impairments or pain. In addition, she is noncompliant 184 Tr. 14. 35 with medication and treatment.185 1. Treating Physicians The court turns to the ALJ’s first finding that no treating physician indicated that Plaintiff was disabled. The ALJ considered opinion evidence from Plaintiff’s State agency examination, two State agency assessments, and Plaintiff’s hospital records. Dr. Sahi examined Plaintiff in November 2007 and noted that she felt Plaintiff would have difficulty sitting and standing for moderate periods lifting.186 of time, walking short distances, and light The ALJ explained in his opinion that he weighed Dr. Sahi’s statements as statements from a non-examining physician, and so they were given little weight. The ALJ’s treatment of Dr. Sahi’s opinion is proper under the regulations. Although the ALJ cannot ignore such opinions, he is not bound by them and must explain the weight given to these opinions in his decision. SSR 96-6p, 1996 WL 374180, at *2. Both State agency physicians wrote in their assessments, dated December 12, 2007, and June 3, 2008, that the severity of the limits alleged by Plaintiff were not supported by evidence in the file.187 Additionally, Dr. Spoor found that Plaintiff had the RFC to occasionally carry twenty pounds, frequently carry ten pounds, stand 185 Tr. 14. 186 Tr. 309. 187 Tr. 322, 343. 36 or walk about six hours in an eight-hour work day, and sit about six hours in an eight-hour work day.188 In her assessment form, Dr. Rowlands wrote: “[Claimant] reports having had two surgeries since initial evaluation. She is not responding Insufficient evidence denial.”189 information. to requests for The ALJ’s opinion was consistent with both assessments. Plaintiff’s last hospital stay, in September 2008, included a detailed physical assessment.190 Ms. Ingram from MDMC saw Plaintiff on September 23, 2008, and found that Plaintiff’s respiratory effort was non-labored and that Plaintiff was able to walk with no limitations.191 The ALJ noted that Plaintiff’s discharge diagnosis from MDMC was chest pain.192 The court determination finds that no the medical treating record physician supports has the ALJ’s indicated that Plaintiff is disabled. Accordingly, the court finds that this undermines credibility Plaintiff’s and overrules Plaintiff’s argument to the contrary. 2. Plaintiff’s Work History Next, the ALJ found 188 Tr. 318. 189 Tr. 343. 190 See Tr. 696-709. 191 Tr. 697, 700. 192 Tr. 14. that 37 Plaintiff’s work history was inconsistent prior to the alleged onset date. Plaintiff stated in her disability report that she was unable to work due to her condition, beginning on January 10, 2007.193 However, she also wrote that she stopped working almost one year earlier, in March 2006, because she did not have a car.194 Plaintiff’s work history report appears to show that she did not work in 1994, or from January 2003 to June 2004.195 Her earnings statement shows that no FICA tax was collected in 1992 or 2003, while approximately twenty dollars was collected from Plaintiff in 2004, and approximately one hundred and thirty three dollars was collected in 2006.196 The court Plaintiff’s notes that application approximately two years. for out of SSI the and five DIB, years preceding Plaintiff worked Therefore, there is evidence to support the ALJ’s finding that Plaintiff’s work history was inconsistent prior to the alleged onset date. The court finds that this undermines and Plaintiff’s credibility overrules Plaintiff’s argument to the contrary. 3. Drug Use The ALJ also found that Plaintiff continued to abuse cocaine. 193 Tr. 156. 194 Tr. 156. 195 Tr. 179. 196 Tr. 130. 38 As noted in the hearing testimony above, the record is somewhat inconsistent with regard to Plaintiff’s history of cocaine use. Although Plaintiff testified that her sobriety date was August 18, 2007, this date is contradicted in two places in the record.197 The hospital records from Plaintiff’s visit to LBJ in July 2008 indicate that Plaintiff used cocaine one month before.198 Additionally, the hospital records from Plaintiff’s visit to LBJ in September 2008 state that Plaintiff last used cocaine six months before, “when she joined rehab.”199 This court cannot reweigh the evidence and does not attempt to determine if Plaintiff continued to use cocaine after her stated sobriety date. However, credibility determinations are generally entitled to great deference. See Newton v. Apfel, 209 F.3d 448, 459 (5th Cir. 2000). As Plaintiff’s testimony at the ALJ hearing was not consistent with the record, the court finds that this undermines Plaintiff’s credibility and overrules Plaintiff’s argument to the contrary. 4. Plaintiff’s Daily Living Activities The ALJ also found that Plaintiff’s “activities of daily living are inconsistent with 197 Tr. 30. 198 Tr. 479. 199 Tr. 608-609. the alleged 39 severity of impairments or pain.”200 Plaintiff contends that the ALJ erred in reaching this conclusion.201 The ALJ noted: The claimant’s activity of daily living questionnaire indicate [sic] that due to her physical problems, mainly shortness of breath, she has difficulty lifting, walking, standing, bending, kneeling, climbing, reaching, and even taking a bath.202 The ALJ noted further that Claimant testified that she cooks and shops for groceries.203 She also testified that she attended Narcotics Anonymous and family support meetings for her substance abuse.204 Plaintiff’s testimony calls into question the limiting effects of her alleged symptoms. Even though the ALJ determined that Plaintiff’s symptoms were not severe enough to find her disabled, the ALJ did not altogether disregard her impairments. The ALJ determined that Plaintiff maintained the RFC to work only at a sedentary exertional level. Accordingly, the court finds that there is sufficient evidence to support the ALJ’s determination and overrules Plaintiff’s argument. 200 Tr. 14. 201 Docket Entry No. 14, Pl.’s Mot. for Summ. J., p. 10. 202 Tr. 13. Plaintiff also indicated in the daily activity questionnaire that her physical problems did not limit the following activities: sitting, using her hands, hearing, speaking, reading the newspaper, watching television, or using the phone. Tr. 188. 203 Tr. 13. 204 Tr. 13. 40 5. Plaintiff’s Noncompliance with Prescribed Medications Finally, the ALJ found that Plaintiff was noncompliant with her prescribed medications.205 Plaintiff argues that the ALJ erred in discounting Plaintiff’s credibility on this basis.206 At the hearing, the ALJ stated that there were at least three occurrences in the medical record where it was noted that Plaintiff was not compliant with her occurrence in his opinion.208 medication.207 The ALJ noted one When Plaintiff was admitted to LBJ in July 2008, for shortness of breath, Plaintiff stated that she had only been taking her medication once a week for the past month.209 The ALJ asked Plaintiff why she was not taking her medication regularly.210 Plaintiff explained that her Medicaid had expired and she could not afford to refill her medication.211 However, she further explained that each time she ran out of medication, she went to the hospital to get her medication refilled.212 20 C.F.R. §§ 404.1530 and 416.930 state: (a) In order to get benefits, you must follow treatment 205 Tr. 14. 206 Docket Entry No. 14, Pl.’s Mot. for Summ. J., p. 11. 207 Tr. 38. 208 Tr. 13. 209 See Tr. 477. 210 Tr. 38. 211 Tr. 38. 212 Tr. 39. 41 prescribed by your physician if this treatment can restore your ability to work. (b) If you do not follow the prescribed treatment without a good reason, we will not find you disabled. 20 C.F.R. §§ 404.1530 (1994), 416.930 (1997). These rules include a list of reasons or situations which would exempt a claimant from complying with prescribed treatment. None of these reasons apply to Plaintiff’s circumstances, nor does she attempt to argue that she falls within one of these exceptions. Plaintiff asserts two alternative arguments. First, she argues that multiple cases establish that 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 Lovelace v. Bowen, 813 F.2d 55, 59 (5th Cir. 1987) (quoting law.” Taylor v. Bowen, 782 F.2d 1294, 1298 (5th Cir. 1986)). Next, she argues that the ALJ is obliged to make affirmative findings as to whether compliance would restore Plaintiff’s ability to work. The court turns to Plaintiff’s first argument, that Plaintiff had no way to obtain her medication and so should be considered disabled. Plaintiff testified that she had previously obtained her medication through at least two means: first, through Medicaid; alternatively, by going to the hospital.213 Plaintiff was able to obtain her medication. Thus, it is clear that Therefore, the record supports the ALJ’s finding that Plaintiff was noncompliant with prescribed medication, and the court overrules Plaintiff’s first 213 Tr. 38-39. 42 argument on this point. Second, Plaintiff argues that before discounting her credibility for medical noncompliance, the ALJ is required to make affirmative findings as to Plaintiff’s ability to work.214 whether compliance would restore Plaintiff cites to Frey v. Bowen, 816 F.2d 508 (10th Cir. 1987), in support of this argument. The issue in Frey was that the ALJ ignored the testimony of several doctors who testified that the claimant could not take his arthritis medications, which could have mitigated the limitations caused by the claimant’s arthritis, because these medications would exacerbate the claimant’s gastrointestinal problems. Id. at 514. Doctors further testified that the claimant in Frey was totally disabled. Id. The present case is distinguishable. The hospital records show that Plaintiff went to the hospital in July 2008, after failing to take her medications regularly. She was given her prescribed blood pressure medications and was diuresed215 for three days; “by the end of the third day, she did not have any more shortness of breath or chest pain. The facial edema decreased and there was no lower extremity edema during discharge.”216 Plaintiff was discharged and instructed to continue taking her medications regularly. 214 Docket Entry No. 14, Pl.’s Mot. for Summ. J., p. 12. 215 Diuresis is an increased excretion of urine. DICTIONARY (Springfield, Merriam Webster, Inc. 1995). 216 Tr. 477. 43 MERRIAM WEBSTER’S MEDICAL Plaintiff does not present satisfactory arguments as to why she was noncompliant with her medication; therefore, the record supports the ALJ’s finding that Plaintiff was noncompliant, and the court overrules Plaintiff’s second argument. The court finds that the ALJ’s credibility determination is supported by substantial evidence. Therefore, the court overrules Plaintiff’s arguments to the contrary. Accordingly, having exhausted all of Plaintiff’s arguments, Plaintiff’s motion for summary judgement is DENIED. G. Defendant’s Argument Defendant asserts that the ALJ’s decision should be affirmed because the ALJ properly determined Plaintiff was never under a disability.217 The issues presented are whether substantial record evidence and relevant legal standards support the Commissioner’s finding that Plaintiff’s impairments are not disabling.218 496. Brown, 192 F.3d at For the reasons stated above, the court finds Defendant satisfied his burden. The ALJ’s decision finding Plaintiff not disabled is supported by substantial record evidence. The court also agrees with Defendant that the ALJ applied the proper legal standards in determination. evaluating the evidence and in making his Therefore, Defendant’s cross motion for summary 217 Docket Entry No. 13, Def.’s Cross Mot. for Summ. J., Attach. 3, Def.’s Memo in Support, p. 9-10. 218 Id. at 1. 44 judgment is GRANTED. IV. Conclusion Based on the foregoing, the court DENIES Plaintiff’s Motion for Summary Judgment (Docket Entry No. 14) and GRANTS Defendant’s Cross Motion for Summary Judgment (Docket Entry No. 13). SIGNED in Houston, Texas, this 27th day of December, 2010. 45

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