Cobbs v. Astrue, No. 4:2009cv01866 - Document 16 (S.D. Tex. 2010)

Court Description: ORDER granting 10 Motion for Summary Judgment; denying 11 Motion for Summary Judgment. It is further ORDERED that this action is REVERSED and REMANDED to the Commissioner for a new hearing.(Signed by Magistrate Judge John R Froeschner) Parties notified.(sanderson, )

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Cobbs v. Astrue Doc. 16 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION RANDY DEENEY COBBS, Plaintiff, versus MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, Defendant. § § § § § § § § § § CIVIL ACTION NO. H-09-1866 OPINION AND ORDER Pending before the Court, upon consent of the parties, are Plaintiff Randy Deeney Cobbs (“Cobbs”) and Defendant Michael J. Astrue’s, Commissioner of the Social Security Administration (the “Commissioner”), cross-motions for summary judgment. Cobbs appeals the final decision of the Commissioner that he is not entitled to receive Title II disability insurance benefits, 42 U.S.C. § 401, et seq., or Title XVI supplemental security income (“SSI”) benefits, 42 U.S.C. § 1381, et seq. See Docket Entry Nos. 10 and 11. Having reviewed the pending motions, the submissions of the parties, the pleadings, the administrative record, and the applicable law, this Court, for the reasons set forth below, concludes that Cobbs’ Motion for Summary Judgment (Docket Entry No. 10) should be granted, the Commissioner’s Motion for Summary Judgment (Docket Entry No. 11) should be denied, the Commissioner’s decision denying benefits should be reversed, and the case should be remanded, pursuant to sentence four, to the Social Security Administration (“SSA”) for further proceedings. Dockets.Justia.com I. Background On July 7, 2006, Cobbs filed applications for disability and SSI benefits with the SSA, alleging he had been unable to work since June 14, 1996, due to hepatitis and cirrhosis of the liver. (R. 11, 92-101, 104, 108).1 After being denied benefits initially and upon reconsideration, Cobbs requested an administrative hearing before an administrative law judge (“ALJ”). (R. 11, 40-43, 4663, 66-67). A hearing was held on June 5, 2008, in Houston, Texas, at which time the ALJ heard testimony from Cobbs, Steven S. Goldstein, M.D. (“Dr. Goldstein”), and Charles R. Poor, a vocational expert (“VE”). (R. 23-39). In a decision dated June 13, 2008, the ALJ denied Cobbs’ applications for benefits. (R. 11-19). On June 23, 2008, Cobbs appealed the ALJ’s decision to the Appeals Council of the SSA’s Office of Hearings and Appeals. (R. 4-7). On May 2, 2009, the Appeals Council denied Cobbs’ request to review the ALJ’s determination. (R. 1-3). This rendered the ALJ’s opinion the final decision of the Commissioner. See Sims v. Apfel, 530 U.S. 103, 107 (2000). Cobbs filed this case on June 16, 2009, seeking judicial review of the Commissioner’s denial of his claim for benefits. See Docket Entry No. 1. II. Analysis A. Statutory Bases for Benefits SSI benefits are authorized by Title XVI of the Act and are funded by general tax revenues. See SOCIAL SECURITY ADMINISTRATION, SOCIAL SECURITY HANDBOOK, § 2100 (14th ed. 2001). The SSI Program is a general public assistance measure providing an additional resource to the aged, References made to the administrative record (e.g., transcripts, exhibits, and other documents) will be denoted by an “R” followed by the applicable page number(s). 1 2 blind, and disabled to assure that their income does not fall below the poverty line. See 20 C.F.R. § 416.110. Eligibility for SSI is based upon proof of indigence and disability. See 42 U.S.C. §§ 1382(a), 1382c(a)(3)(A)-(C). A claimant applying to the SSI program cannot receive payment for any period of disability predating the month in which he applies for benefits, no matter how long he has actually been disabled. See Brown v. Apfel, 192 F.3d 492, 495 n.1 (5th Cir. 1999); see also 20 C.F.R. § 416.335. The applicable regulation provides: When you file an application in the month that you meet all the other requirements for eligibility, the earliest month for which we can pay you benefits is the month following the month you filed the application. If you file an application after the month you first meet all the other requirements for eligibility, we cannot pay you for the month in which your application is filed or any months before that month. 20 C.F.R. § 416.335. Thus, the month following an application, here, July 2006, fixes the earliest date from which benefits can be paid. Eligibility for SSI payments, however, is not dependent on insured status. See 42 U.S.C. § 1382(a). Social Security disability insurance benefits are authorized by Title II of the Act and are funded by Social Security taxes. See also SOCIAL SECURITY ADMINISTRATION, SOCIAL SECURITY HANDBOOK, § 2100. The disability insurance program provides income to individuals who are forced into involuntary, premature retirement, provided they are both insured and disabled, regardless of indigence. A claimant for disability insurance can collect benefits for up to twelve months of disability prior to the filing of an application. See 20 C.F.R. §§ 404.131, 404.315; see also Perkins v. Chater, 107 F.3d 1290, 1295 (7th Cir. 1997). For purposes of Title II disability benefits, Cobbs has acquired sufficient quarters of coverage to remain insured through December 31, 2001. (R. 11, 13). Thus, Cobbs must establish disability on or before that date in order to be entitled to benefits. 3 While these are separate and distinct programs, applicants seeking benefits under either statutory provision must prove “disability” within the meaning of the Act, which defines disability in virtually identical language for both programs. See 42 U.S.C. §§ 423(d), 1382c(a)(3), 1382c(a)(3)(G); 20 C.F.R. §§ 404.1505(a), 416.905(a). Under both provisions, disability is defined as the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months. See 42 U.S.C. §§ 423(d)(1)(A), 1382c(3)(A). Moreover, the law and regulations governing the determination of disability are the same for both disability insurance benefits and SSI. See Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994), cert. denied, 514 U.S. 1120 (1995). B. Standard of Review 1. Summary Judgment The court may grant summary judgment under FED. R. CIV. P. 56(c) when the moving party is entitled to judgment as a matter of law because there is no genuine issue as to any material fact. The burden of proof, however, rests with the movant to show that there is no evidence to support the nonmoving party’s case. If a reasonable jury could return a verdict for the nonmoving party, then a motion for summary judgment cannot be granted because there exists a genuine issue of fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of fact is “material” only if its resolution could affect the outcome of the case. See Duplantis v. Shell Offshore, Inc., 948 F.2d 187, 189 (5th Cir. 1991). When deciding whether to grant a motion for summary judgment, the court shall draw all justifiable inferences in favor of the nonmoving party, and deny the motion if there is some evidence to support the nonmoving party’s 4 position. See McAllister v. Resolution Trust Corp., 201 F.3d 570, 574 (5th Cir. 2000). If there are no issues of material fact, the court shall review any questions of law de novo. See MerrittCampbell, Inc. v. RxP Prods., Inc., 164 F.3d 957, 961 (5th Cir. 1999). Once the movant properly supports the motion, the burden shifts to the nonmoving party, who must present specific and supported material facts, of significant probative value, to preclude summary judgment. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); International Ass’n of Machinists & Aerospace Workers, AFL-CIO v. Compania Mexicana de Aviacion, S.A. de C.V., 199 F.3d 796, 798 (5th Cir. 2000). 2. Administrative Determination Judicial review of the Commissioner’s denial of disability benefits is limited to whether the final decision is supported by substantial evidence on the record as a whole and whether the proper legal standards were applied to evaluate the evidence. See Masterson v. Barnhart, 309 F.3d 267, 272 (5th Cir. 2002). “Substantial evidence” means that the evidence must be enough to allow a reasonable mind to support the Commissioner’s decision; it must be more than a mere scintilla, but may be less than a preponderance. See Richardson v. Perales, 402 U.S. 389, 401 (1971); Masterson, 309 F.3d at 272; Brown, 192 F.3d at 496. When applying the substantial evidence standard on review, the court “scrutinize[s] the record to determine whether such evidence is present.” Myers v. Apfel, 238 F.3d 617, 619 (5th Cir. 2001) (citations omitted). If the Commissioner’s findings are supported by substantial evidence, they are conclusive and must be affirmed. See Watson v. Barnhart, 288 F.3d 212, 215 (5th Cir. 2002). Alternatively, a finding of no substantial evidence is appropriate if no credible evidentiary choices or medical findings support the decision. See Boyd v. Apfel, 239 F.3d 698, 704 (5th Cir. 5 2001). The court may not, however, reweigh the evidence, try the issues de novo, or substitute its judgment for that of the Commissioner. See Masterson, 309 F.3d at 272. In short, “[c]onflicts in the evidence are for the Commissioner and not the courts to resolve.” Id. C. ALJ’s Determination An ALJ must engage in a five-step sequential inquiry to determine whether the claimant is capable of performing “substantial gainful activity,” or is, in fact, disabled: 1. An individual who is working and engaging in substantial gainful activity will not be found disabled regardless of the medical findings. See 20 C.F.R. §§ 404.1520(b), 416.920(b). 2. An individual who does not have a “severe impairment” will not be found to be disabled. See 20 C.F.R. §§ 404.1520(c), 416.920(c). 3. An individual who “meets or equals a listed impairment in Appendix 1” of the regulations will be considered disabled without consideration of vocational factors. See 20 C.F.R. §§ 404.1520(d), 416.920(d). 4. If an individual is capable of performing the work he has done in the past, a finding of “not disabled” must be made. See 20 C.F.R. §§ 404.1520(e), 416.920(e). 5. If an individual’s impairment precludes performance of his past work, then other factors, including age, education, past work experience, and residual functional capacity must be considered to determine if any work can be performed. See 20 C.F.R. §§ 404.1520(f), 416.920(f). Newton v. Apfel, 209 F.3d 448, 453 (5th Cir. 2000); accord Boyd, 239 F.3d at 704-05. The claimant has the burden to prove disability under the first four steps. See Myers, 238 F.3d at 619. If the claimant successfully carries this burden, the burden shifts to the Commissioner in step five to show that other substantial gainful employment is available in the national economy, which the claimant is capable of performing. See Masterson, 309 F.3d at 272; Greenspan, 38 F.3d at 236. If the Commissioner is able to verify that other work exists in significant numbers in the national economy 6 that the claimant can perform in spite of his or her existing impairments, the burden shifts back to the claimant to prove that he or she cannot, in fact, perform the alternate work suggested. See Boyd, 239 F.3d at 705. A finding that a claimant is disabled or is not disabled at any point in the five-step review is conclusive and terminates the analysis. See id. The mere presence of an impairment does not necessarily establish a disability. See Anthony v. Sullivan, 954 F.2d 289, 293 (5th Cir. 1992). An individual claiming disability benefits under the Act has the burden to prove that he suffers from a disability as defined by the Act. See Newton, 209 F.3d at 452; Selders v. Sullivan, 914 F.2d 614, 618 (5th Cir. 1990); Johnson v. Bowen, 864 F.2d 340, 343 (5th Cir. 1988); Cook v. Heckler, 750 F.2d 391, 393 (5th Cir. 1985). A claimant is deemed disabled under the Act only if he demonstrates an “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” Shave v. Apfel, 238 F.3d 592, 594 (5th Cir. 2001); accord Newton, 209 F.3d at 452; Crowley v. Apfel, 197 F.3d 194, 197-98 (5th Cir. 1999); Selders, 914 F.2d at 618; see also 42 U.S.C. § 423(d)(1)(A). “Substantial gainful activity” is defined as work activity involving significant physical or mental abilities for pay or profit. See Newton, 209 F.3d at 452-53; see also 20 C.F.R. §§ 404.1572(a),(b), 416.972. A medically determinable “physical or mental impairment” is an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques. See Hames v. Heckler, 707 F.2d 162, 165 (5th Cir. 1983); see also 42 U.S.C. § 423(d)(3). “[A]n individual is ‘under a disability, only if his impairments are of such severity that he is not only unable to do his previous work but 7 cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy . . . .’” Greenspan, 38 F.3d at 236 (quoting 42 U.S.C. § 423(d)(2)(A)). This is true regardless of whether such work exists in the immediate area in which the claimant resides, whether a specific job vacancy exists, or whether the claimant would be hired if he applied. See Oldham v. Schweiker, 660 F.2d 1078, 1083 (5th Cir. 1981); see also 42 U.S.C. § 423(d)(2)(A). In the case at bar, when addressing the first four steps, the ALJ determined: 1. The claimant met the insured status requirements of the Social Security Act through December 31, 2001. 2. The claimant has not engaged in substantial gainful activity since June 14, 1996, the alleged onset date (20 C.F.R. §§ 404.1520(b), 404.1571 et seq., 416.920(b), and 416.971 et seq.). 3. The claimant has the following severe impairments: hepatitis C, cirrhosis, status post adenocarcinoma of the chest, coronary artery disease, and status post stroke (20 C.F.R. §§ 404.1520(c) and 416.920(c)). 4. The claimant does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926). 5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform the full range of medium work as defined in 20 C.F.R. §§ 404.1567(c) and 416.967(c). The claimant is able to lift and carry 50 pounds occasionally and 25 pounds frequently, stand and walk about 6 hours in an 8-hour workday, and sit for about 6 hours in an 8-hour workday. The claimant’s testimony regarding [his] pain and fatigue are not credible. 6. The claimant is capable of performing past relevant work as an automobile technician. This work does not require the performance of work-related activities precluded by the claimant’s residual functional capacity (20 C.F.R. §§ 404.1565 and 416.965). 8 7. The claimant has not been under a disability, as defined in the Social Security Act, from June 14, 1996, through the date of this decision (20 C.F.R. §§ 404.1520(f) and 416.920(f)). (R. 11-15, 18-19). Because the ALJ found that Cobbs could perform his past relevant work, the ALJ did not proceed to step five of the sequential evaluation process. This Court’s inquiry is limited to a determination of whether there is substantial evidence in the record to support the ALJ’s findings and whether the proper legal standards have been applied. See Masterson, 309 F.3d at 272; Watson, 288 F.3d at 215; Myers, 238 F.3d at 619; Newton, 209 F.3d at 452; Greenspan, 38 F.3d at 236; see also 42 U.S.C. §§ 405(g), 1383(c)(3). To determine whether the decision to deny Cobbs’ claim for disability benefits is supported by substantial evidence, the court weighs the following four factors: (1) the objective medical facts; (2) the diagnoses and opinions from treating and examining physicians; (3) the plaintiff’s subjective evidence of pain and disability, and any corroboration by family and neighbors; as well as, (4) the plaintiff’s age, educational background, and work history. See Martinez v. Chater, 64 F.3d 172, 174 (5th Cir. 1995); Wren v. Sullivan, 925 F.2d 123, 126 (5th Cir. 1991) (citing DePaepe v. Richardson, 464 F.2d 92, 94 (5th Cir. 1972)). Any conflicts in the evidence are to be resolved by the ALJ and not the court. See Newton, 209 F.3d at 452; Brown, 192 F.3d at 496; Martinez, 64 F.3d at 174; Selders, 914 F.2d at 617. D. Issues Presented Cobbs contends that the decision of the ALJ is not supported by substantial evidence. Specifically, Cobbs claims that the ALJ erred in making his determination of credibility with respect to the claimant’s testimony concerning fatigue. See Docket Entry Nos. 10, 13. The Commissioner 9 disagrees with Cobbs’ contentions, maintaining that the ALJ’s decision is supported by substantial evidence. See Docket Entry No. 12. 1. Subjective Complaints The law requires the ALJ to make affirmative findings regarding a claimant’s subjective complaints. See Falco v. Shalala, 27 F.3d 160, 163 (5th Cir. 1994) (citing Scharlow v. Schweiker, 655 F.2d 645, 648-49 (5th Cir. 1981)). When a plaintiff alleges disability resulting from pain, he must establish a medically determinable impairment that is capable of producing disabling pain. See Ripley, 67 F.3d at 556 (citing 20 C.F.R. § 404.1529). Once a medical impairment is established, the subjective complaints of pain must be considered along with the medical evidence in determining the individual’s work capacity. See id. It is well settled that an ALJ’s credibility findings on a claimant’s subjective complaints are entitled to deference. See Chambliss v. Massanari, 269 F.3d 520, 522 (5th Cir. 2001); Scott v. Shalala, 30 F.3d 33, 35 n.2 (5th Cir. 1994); Falco, 27 F.3d at 164; Wren, 925 F.2d at 128. The Fifth Circuit recognizes that “the ALJ is best positioned” to make these determinations because of the opportunity to observe the claimant first-hand. See Falco, 27 F.3d at 164 n.18. Moreover, “[t]he Act, regulations and case law mandate that the Secretary require that subjective complaints be corroborated, at least in part, by objective medical findings.” Harrell v. Bowen, 862 F.2d 471, 481 (5th Cir. 1988) (citing 42 U.S.C. § 423(d)(5)(A); 20 C.F.R. § 404.1529; Owens v. Heckler, 770 F.2d 1276, 1281-82 (5th Cir. 1985)); accord Chambliss, 269 F.3d at 522 (citing Houston v. Sullivan, 895 F.2d 1012, 1016 (5th Cir. 1989)); Hampton v. Bowen, 785 F.2d 1308, 1309 (5th Cir. 1986). As a matter of law, the mere fact that working may cause a claimant pain or discomfort does not mandate a finding of disability. See Hames, 707 F.2d at 166; Epps v. Harris, 624 F.2d 1267, 10 1274 (5th Cir. 1980); accord Brown v. Bowen, 794 F.2d 703, 707 (D.C. Cir. 1986). Additionally, the mere existence of pain does not automatically bring a finding of disability. Harper v. Sullivan, 887 F.2d 92, 96 (5th Cir. 1989); Owens, 770 F.2d at 1281. It must be determined whether substantial evidence indicates an applicant can work despite being in pain or discomfort. See Chambliss, 269 F.3d at 522; Johnson v. Heckler, 767 F.2d 180, 182 (5th Cir. 1985). For pain to rise to the level of disabling, that pain must be “constant, unremitting, and wholly unresponsive to therapeutic treatment.” Chambliss, 269 F.3d at 522; Falco, 27 F.3d at 163; Wren, 925 F.2d at 128. The decision arising from the ALJ’s discretion to determine whether pain is disabling is entitled to considerable deference. See Chambliss, 269 F.3d at 522; Wren, 925 F.2d at 128; James, 793 F.2d at 706. However, an ALJ may discount subjective complaints of pain as inconsistent with other evidence in the record. See Dunbar v. Barnhart, 330 F.3d 670, 672 (5th Cir. 2003) (citing Wren, 925 F.2d at 128 (citation omitted)). In this case, Cobbs suffers from several impairments. For thirty years, Cobbs smoked cigarettes and engaged in moderate alcohol use. (R. 33). In 1985, Cobbs was involved in a car accident, requiring a splenectomy. (R. 27). During the operation, he received a blood transfusion. (R. 27). In 1996, Cobbs was diagnosed with Hepatitis C. (R. 27). He also has a history of hepatitis A and B exposure. (R. 27). The records further note that Cobbs has a history of TB with a sixmonth treatment with INH in 1995. Cobbs has heart arrhythmia and has had three heart attacks, with the first occurring in 1993. (R. 30-31). In September 2006, medical records reflect that Cobbs’ liver disease had progressed to Stage IV cirrhosis. (R. 274). In 2007, Cobbs underwent surgery to remove cancer from his left lung. (R. 29). In 2008, Cobbs suffered a minor stroke. (R. 31). Cobbs also suffers from back pain. (R. 26-27). Cobbs testified that he no longer smokes or drinks. (R. 32). 11 At the administrative hearing, Cobbs testified that his primary impairment from working was a lack of energy or strength. (R. 31). The medical records reflect that Cobbs has consistently reported feeling weakness and fatigue. (R. 159, 163, 175, 191). The ALJ improperly discounts Cobbs’ credibility and subjective complaints of fatigue: . . . the claimant’s statements concerning the intensity, persistence and limiting effects of these symptoms are not credible to the extent they are inconsistent with the residual functional capacity assessment. In support of this conclusion, the Administrative Law Judge notes that the objective clinical findings do not support the claimant’s alleged subjective symptoms or functional limitations. (R. 16). It is undisputed that Cobbs has suffered from Hepatitis C and cirrhosis for many years. It is further undisputed that prolonged and/or advanced liver disease can cause severe fatigue. Indeed, Dianne Nicholas, M.D., noted in a September 7, 2006, internal medicine consultative examination the following diagnostic impression of Cobbs: Hepatitis The patient reports debilitating weakness and fatigue worsening over the past 10 years. He was apparently diagnosed with viral Hepatitis in 1996. The stage of liver disease present is unclear because he has never had a liver biopsy and the viral load is unknown. However at this examination he is found with an increased liver span, increased liver transaminase levels and multiple stigmata of liver disease. He states he is now awaiting a liver transplant. (R. 177). Ten days after his consultative examination with Dr. Nicholas, on September 17, 2006, Cobbs’ treating physician noted that Cobbs was in Stage IV with decreasing energy levels since 2002. (R. 274). At the administrative hearing, the medical expert, Dr. Goldstein, recognized that fatigue could be a limiting factor for Cobbs to have sustained work activity: Well, the, the limiting factor in his working would be the fatigue and hepatitis C. And the record does not evaluate the degree of the fatigue from the hepatitis C. I would say the lung cancer would be a non severe impairment. The cardiac problems with an injection (sic) fraction of 60 to 64 he would be able to do medium activities. 12 The hepatitis C is the one thing--and I can’t really see it in the record that this was evaluated. I see complaints of fatigue, but not any evaluation that I can tell from the vocational point of view how much he could actually do related to that. The blood work basically shows for a minor problem. But if one has hepatitis C for a ver long period of time and then there is a sever[e] cirrhosis in the liver that he could be less than sedentary. And you can not always tell just from looking at the blood test that you’re dealing -- how severe the disease is. Looking at the blood tests that we have in terms meeting the listings, showing that it is severe, we don’t have that. (R. 36). When the ALJ questioned him further if Cobbs would be able to perform medium work if it were not for the possible fatigue from hepatitis C, Dr. Goldstein responded: “[y]es. That would be the thing, be [the] thing that would be limiting him in this case.” (R. 37). Contrary to the ALJ’s decision, the record lends support to Cobbs’ complaints of increased weakness and fatigue. As such, the ALJ’s determination regarding Cobbs’ credibility is not supported by substantial evidence. Hence, this case must be remanded for a proper evaluation of both the objective and subjective implications of Cobbs’ impairments. 2. Residual Functional Capacity Under the Act, a person is considered disabled: . . . only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. . . . 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). The Commissioner bears the burden of proving that a claimant’s functional capacity, age, education, and work experience allow him to perform work in the national economy. See Brown v. Yuckert, 482 U.S. 137, 146 n.5 (1987); see also Masterson, 309 F.3d at 272; Watson, 288 F.3d at 216; Myers, 238 F.3d at 619; Greenspan, 38 F.3d at 236. If the Commissioner fulfills this burden by pointing out potential alternative employment, the claimant, in order to prevail, must prove that he cannot perform the alternate work suggested. See Masterson, 13 309 F.3d at 272; Boyd, 239 F.3d at 705; Shave, 238 F.3d at 594; Carey v. Apfel, 230 F.3d 131, 135 (5th Cir. 2000). To determine whether a claimant can return to a former job, the claimant’s “residual functional capacity” must be assessed. See Moore v. Sullivan, 895 F.2d 1065, 1068 (5th Cir. 1990); see also 20 C.F.R. § 404.1545. This term of art merely represents an individual's ability to perform activities despite the limitations imposed by an impairment. See Villa v. Sullivan, 895 F.2d 1019, 1023 (5th Cir. 1990); see also 20 C.F.R. § 404.1545. Residual functional capacity combines a medical assessment with the descriptions by physicians, the claimant or others of any limitations on the claimant’s ability to work. See Elzy v. Railroad Retirement Bd., 782 F.2d 1223, 1225 (5th Cir. 1986); see also 20 C.F.R. § 404.1545. When a claimant’s residual functional capacity is not sufficient to permit him to continue his former work, then his age, education, and work experience must be considered in evaluating whether he is capable of performing any other work. See Boyd, 239 F.3d at 705; 20 C.F.R. § 404.1520. The testimony of a vocational expert is valuable in this regard, as “[he] is familiar with the specific requirements of a particular occupation, including working conditions and the attributes and skills needed.” Fields v. Bowen, 805 F.2d 1168, 1170 (5th Cir. 1986); accord Carey, 230 F.3d at 145; see also Vaughan v. Shalala, 58 F.3d 129, 132 (5th Cir. 1995). In evaluating a claimant’s residual functional capacity, the Fifth Circuit has looked to SSA rulings (“SSR”). See Myers, 238 F.3d at 620. The Social Security Administration’s rulings are not binding on this court, but they may be consulted when the statute at issue provides little guidance. See id. In Myers, the Fifth Circuit relied on SSRs addressing residual functional capacity and exertional capacity. See id. In that case, the court explained: First, SSR 96-8p provides that a residual functional capacity (RFC) is an assessment of an individual’s ability to do sustained work-related physical and mental activities 14 in a work setting on a regular and continuing basis. A regular and continuing basis means 8 hours a day, for 5 days a week, or an equivalent work schedule. The RFC assessment is a function-by-function assessment based upon all of the relevant evidence of an individual’s ability to do work-related activities. However, without the initial function-by-function assessment of the individual’s physical and mental capacities, it may not be possible to determine whether the individual is able to do past relevant work. . . . RFC involves both exertional and non-exertional factors. Exertional capacity involves seven strength demands: sitting, standing, walking, lifting, carrying, pushing, and pulling. Each function must be considered separately. In assessing RFC, the adjudicator must discuss the individual’s ability to perform sustained work activities in an ordinary work setting on a regular and continuing basis. . . . The RFC assessment must include a resolution of any inconsistencies in the evidence. Id. (internal citations omitted); see 61 Fed. Reg. 34474-01 (July 2, 1996). The court further commented: Second, SSR 96-9p also provides that initially, the RFC assessment is a function-byfunction assessment based upon all of the relevant evidence of an individual’s ability to perform work-related activities. . . . The impact of an RFC for less than a full range of sedentary work is especially critical for individuals who have not yet attained age 50. Since age, education, and work experience are not usually significant factors in limiting the ability of individuals under age 50 to make an adjustment to other work, the conclusion whether such individuals who are limited to less than the full range of sedentary work are disabled will depend primarily on the nature and extent of their functional limitations or restrictions. Id. (internal citations omitted); see 61 Fed. Reg. 34478 (July 2, 1996). The court also noted that SSR 96-9p defines “exertional capacity” as the aforementioned seven strength demands and requires that the individual’s capacity to do them on a regular continuing basis be stated. See id. To determine that an claimant can do a given type of work, the ALJ must find that the claimant can meet the job’s exertional requirements on a sustained basis. See Carter v. Heckler, 712 F.2d 137, 142 (5th Cir. 1983) (citing Dubose v. Matthews, 545 F.2d 975, 977-78 (5th Cir. 1977)). In the case at bar, the ALJ failed to formulate hypothetical questions for the VE that encompassed all of Cobbs’ limitations. In fact, the ALJ only asked two questions of the VE, which pertained to categorizing Cobbs’ past relevant work in the automobile repair industry as 15 medium/semi-skilled and non-transferable. (R. 38). As set forth above, however, there is no evaluation in the record as to the impact of Cobbs’ fatigue on his ability to perform his past relevant work. (R. 36-37). Consequently, this case must be remanded for a proper assessment of Cobbs’ ability to perform his past work taking into consideration the limiting effects of fatigue. III. Conclusion Considering the record as a whole, this Court concludes that the proper legal standards were not adhered to and the Commissioner’s decision is not supported by substantial evidence. Accordingly, it is the ORDERED that Plaintiff’s Motion for Summary Judgment (Docket Entry No. 10) is GRANTED. It is further ORDERED that Defendant’s Motion for Summary Judgment (Docket Entry No. 11) is DENIED. It is finally ORDERED that this action is REVERSED and REMANDED to the Commissioner for a new hearing to properly consider Cobbs’ credibility as it relates to fatigue resulting from Stage IV liver disease and assess limiting effects, if any, of fatigue on Cobbs’ ability to perform his prior past work at a medium exertional level. DONE at Galveston, Texas, this 21st 16 day of September, 2010.

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